KRIMINOLOGIS TERHADAP PERDAGANGAN ORANG SEBAGAI EXTRA ORDINARY CRIME
KRIMINOLOGIS TO COMMERCE OF PEOPLE AS EXTRA ORDINARY CRIME
Poppy Andi Lolo, Muhadar, Said Karim,
Jurusan Pidana Fakultas Hukum Universitas Hasanuddin
Alamat Koresponden: Jl. Sunu Kom. Perdos Blok AX 6 Makassar Hp. 0811444018 Email:
[email protected]
ABSTRAK Penelitian ini bertujuan untuk merekonstruksi kejahatan perdagangan orang menjadi kejahatan luar biasa berdasarkan fakta sosial melalui analisis kriminologis sebagai bagian dari kebijakan kriminal. Penelitian ini menggunakan tipe penelitian hukum empirik (nondoktrinal). Sumber data diperoleh dari data primer (wawancara, dan kuesioner) dan data sekunder (dokumentasi). Responden dari penasihat hukum, hakim, lembaga pemasyarakatan dan lembaga swadaya masyarakat. Teknik analisis dan argumentasi kriminologis dan teori-teori kriminologi. Penelitian ini menunjukan bahwa pengaturan perundang-undangan yang mengatur kejahatan perdagangan orang. Baik mengenai rumusan kriminalitas perbuatan, pertanggungjawaban pidana, muatan sanksi maksimal. Disamping semakin meningkatnya kejahatan, munculnya viktimisasi struktural dan fungsional, rusaknya tatanan nilai dan norma dalam masyarakat, sehingga terbentuk situasi anomistis. Kejahatan yang terorganisir dan meluas serta penerapan sanksi yang menjadi faktor kriminogen tidak mampu menahan laju kejahatan perdagangan orang. Maka secara kriminologis sudah dapat menjadi dasar peningkatan kualifikasi kejahatan perdagangan orang menjadi kejahatan luar biasa. Saran yang diajukan adalah sebaiknya semua ketentuan perundang-undangan yang mengatur tindak pidana orang diregulasi ulang melalui kebijakan kriminal agar muatan substansi hukum Tindak Pidana Perdagangan Orang menjadi kejahatan luar biasa berdasarkan hasil analisis kriminologis yang menunjukkan fakta sosial yang tercatat dalam statistik kriminal cenderung semakin meningkat, sudah memenuhi untuk memperbaharui norma hukum agar menjadi kejahatan luar biasa (Extra Ordinary Crime). Selain itu, agar aparat penegak hukum menerapkan sanksi pidana (penjara dan denda) maksimal agar dapat menjadi sarana represif dan preventif sehingga kejahatan perdagangan orang dikualifikasi sebagai kejahatan luar biasa (Extra Ordinary Crime).
ABSTRACT This study aims to reconstruct a crime trafficking remarkable by the fact social through criminological analysis as part of the criminal policy. This study uses empirical legal research type (nondoktrinal). Sources of data obtained from primary data (interviews and questionnaires) and secondary data (documentation). Respondents from lawyers, judges, correctional institutions and NGOs. Criminological analysis and argumentation techniques and theories of criminology. This study shows that regulation legislation governing the crime of trafficking in persons. Both the formulation of criminal acts, criminal responsibility, charge the maximum sanction. Besides the increasing crime, victimization emergence of structural and functional damage to the structure of values and norms in society, thus forming anomistis situation. Organized crime and the spread and application of sanctions being unable kriminogen factor curbing trafficking. Then it has to be the basis of criminological qualification increased trafficking into extraordinary crime. Suggestions put forward is better all statutory provisions that criminalize the regulated recharged through criminal policies that charge legal substance Crime of Trafficking in Persons become extraordinary crime by showing the results of criminological analysis of social facts in recorded crime statistics tend to increase, already meet to renew the rule of law in order to become extraordinary crime (Extra Ordinary Crime). In addition, law enforcement officers in order to apply criminal sanctions (imprisonment and fines) the maximum in order to be repressive and preventive means that trafficking crime qualified as exceptional (Extra Ordinary Crime).
CHAPTER I INTRODUCTION A. Background Crime is due to the social reaction in group of modern community which is have much influenced from the development of technology and communication which is became faster day by day. It caused the negative influence in community which can be called a crime. Trafficking in person is one of the crime that should be discuss today. Before the existed of Law number 21 year 2007 of suppression of human trafficking, The lawyers used the law number 23 year 2002 Of Child Protection and some articles in criminal law book. Morever, there are several laws which is apply specifically in their articles about the human trafficking, like the law number 23 year 1999 of Health, The law number 1 year 1979 of Extradition, Law Number 39 year 1999 of Human Rights. However those laws still lots of insufficiency due to solve the human trafficking. After the existed of law number 21 year 2007 suppression of human trafficking, be expected to give more solution in order to prevent, handle and solve the cases of human trafficking in Indonesia. Human trafficking is refer to the modern human slavery which also one of the worst treat to the human being and is violated the human dignity. Based to the empirical provment, woman and children are the most due to the victim of human trafficking. They were trafficked not only for
prostituted or any other sexual exploitation, but forced to the work or slavery. The perpetrator was doing such as recruitment, evacuation, hiding or accepting people for trape purpose or exploitate in any kind by violation, kidnapped, cheat and abuse of power or the vulnerable position or pay to the people who are guardian of the victim. Kind of exploitation are forced work or forced labour, slavery and any practice refer to the slavery, forced labour is a work condition where they make them think if they do not do this certain of work then she or people whom depend on her would be suffer either physikis or physical. Trafficking, specially women and children have wider link in crime whether organized or un organized. Trafficking even involve not whom abuse their power. Link of perpetrator have reach not only between the area in the country but outside the country too. For the short period, sometime the victim could not released yet that she had been exploitated but for long time the victim just realized that she had been exploitated. Exploitation act is an act like violence, extortion, physical advantage, sexual advantages or the ability of the person by other people for benefit purposed. One of the main important in human trafficking is exploitation act due as a main purpose. To prevent and solve the trafficking, The Government has issued the law number 21 year 2007 which also mentioned above. It arrange the protection of witness and victim as the main point in prevent the law. Prevent law means to protect the victim and witness, reminding of the
huge damage of human trafficking both to the victim and to the next generation of Indonesian people in future. Human Trafficking crime is pass trough the geografis limitation not within this area in domestic but internationally. Those make the difficult of handling or eradicating it crimes. It crimes not only happen to women and children but to any one either but the attention is refer to both women and children as the vulnerable group to the trafficking. The issue of trafficking is sensitive issue which is un direct face the cultural value also discrimination issue which had been existed since years ago. Cultural Patrilineal is one factor which place woman in unfair gender both marginalized, subordinated, stereotyped and violence. According to United Nations, within 2 and 4 million women and children are became victim of the human trafficking. From those number, as many as 200.000 to 225.000 are from the South East Asian Country. In a year 2003, those number were increased like mentioned by Burcau of Public Affairs, United Nations Department of State which around .800.000 to .900.000 every year, human were trafficked by ignore the international limitation for the sexual trafficking. Women are became the largest of the victim. It became a serious global phenomenon. Human Trafficking is not only international crime but gross violation to the human rights and new slavery in modern era. Human Trafficking is illegal especially to the women became a serious human problem. In some Asian Country, those women are treat arbitrary by ignore their
humanity and dignity Those women were forced and
trafficked for sex industry and entertainment business. Some of them, place into house work or factory with un limited work hours and low salary
Chapter II LEGAL ANALYSIS Human Trafficking Crime based on Law of Republic Indonesia number 21 year 2007, are : 1. Every one who is doing the recruitment, transportation, send, evacuation and acceptance somebody with violence treatment, kidnapped, spurious, cheat, abused, trapping of debt, give payment or any benefit for permit reason from a person who are act as a guardian to the victim in Republic Indonesia, will sentenced to the jail as long as 15 years and pay the penalty as much as six hundreds million rupiahs (articles 2) 2. Everyone who is smuggling people into Indonesian Republic
with
purpose of exploitation to other country would be sentence to the jail as long as 15 years and fine to the maximal of six hundreds million rupiahs 3. Everyone whom is taking out the Indonesian citizen with the purpose of exploitation outside the Republic of Indonesia, will sentenced as long as the maximal to 15 years and fine as much as the maximal to the six hundreds million rupiahs (articles 4). 4. Everyone who is doing the adoption of the child with promising something or give something with the purpose of exploitation can be sentenced to the jail as long as to the maximal 15 years and fine as much as to maximal six hundreds million rupiahs (articles 15). 5. Everyone who is sending the child to both inside and outside the country which refer to exploitation could be sentenced to the law for as long as
maximal 15 years or pay the penalty as much as the maximal six hundreds million rupiahs (articles 6). 6. Each of the officer state which abuse the its power due to the caused of human trafficking as mentioned in articles 2,3,4,5 and 6 then the sentenced will add by one to third from the sentenced mentioned in articles 2, would charge with additional sentenced by fire with unrespect. (articles 8). 7. Everyone who is trying to do a human trafficking will be sentence to fine as much as two hundreds and forty million rupiahs (articles 9). 8. Everyone whom seem to help and trying to do the human trafficking will be sentenced by jail with the same time as mentioned in articles 2, 3, 4, 5 dan 6. (articles 10). 9. Everyone who is planned to do the human trafficking or intend to do with other people will be sentenced as same as the perpetrator as mentioned in articles 2, 3, 4, 5 and articles 6. (articles 11). 10. Everyone who use or intend to taking any benefit to the victim of human trafficking by do the
sexual harassment, or any other activity with the
benefit purpose will be senceted as same as mentioned in articles 2, 3, 4, 5 and articles 6 (articles 12). The protection of witness and victim : 1. The witness and the victim have a right to hidden identity included their family or if the victim get bad treatment either physic or phiskis
2. Each provinces and region/city, must be have a special room to serve in police office for a victim and witness whom are checked as a witness and or the victim from tracficcking. 3. Each region should have a center point for the victim and witness of trafficking 4. The Police of Republic Indonesia have a compulsory duty to protect witness and victim of the trafficking from all the danger situation and condition due to their status as a witness and victim including their family during the case were applied. 5. All the victim, have a right to get restitution, such as, compensate of any lost of property or income, or financial support for the medical health and other lost of the victim which is caused by the trafficking. 6. The victim have a right for medical rehabilitation, social rehabilitation and social reintegration from government if the victim were suffered due to the victim of trafficking. 7. For the traumatic and danger disease due to the trafficking, so the minister or institution related to this matter must give any respond within 7 days after application be made. 8. If the victim in abroad need a legal protection due to the trafficking, then the Indonesian Government should provide legal protection trough the Indonesian embassy for the interest of the victim and return the victim back to Indonesia under government financa support.
9. If the victim is foreigner whom is in Indonesia, them the government should have the best effort for the protection and return her back to her own country by coordinate with her embassy in Indonesia.
CHAPTER III ANALYSIS A. Human Trafficking in Practice The increased of human trafficking cases in Indonesia is very concerning. From year to year, it is increasing so fast. It seems like ice mountain, which is means the hiding number is much bigger than it shown From the international for Migration data, noted until April 2006 the number of case of human trafficking in Indonesia reached 1022 cases with detail : 86,6 % victim with women 52 had exploitated as house worked and 17,1% had forced to prostituted. Along the case of trafficking of came out to the exposed in Indonesia since 2000 was a very big case. Several model to trafficking started from promised good job, kidnapped, help woman who wanted giving birth, baby smuggling then to the commercial worker. In general, the victim just realized than she was a victim of human trafficking after got un human treatment in abroad. According to the survey that done by a monitoring and eradication fund in United State, every year approximately 600.000 – 800.000 men, women and children are assumed to pass the international boundary and till now are still increasing. Most of those people are intend to smuggling with purpose of international sexual and labour which is done through the organised transnational crime, not pass through the country line either direct. The region which became the biggest sending area due to human
trafficking are spread out around Indonesia. From one data, had mentioned at least 80 % from 8.000 cases of human trafficking since 2004 entangling the victim from Subang, Karawang, Cianjur and Indramayu, West Java.
The affect of this cases is Indonesia is
threathened to abolished in list of country which have right to get the human funding from UN. In other region is also have increased cased. Bangka is one of the main destination for human trafficking. It noted by many activity refer to human trafficking from many other places to Bangka Island, the fact is , there are five cases of human trafficking along 2006,five times increasing than 2005. The economic of Bangka which started to grow with the condition of this area not just became a transit place before go to Batam but also the purpose destination. Generally, the human trafficking is happened to sending the Indonesian worker abroad.
the case of
For that reason, the solve of
human trafficking is necessary to solve the sending problem due to the worker whom are going to abroad because many of the worker do not have much knowledge about the procedure and condition that to fullfil. B. Human Trafficking to the Indonesian Worker Apart from Indonesian worker whom became victim of the human trafficking, some of the children became a victim of it crimes, for example the case which had happened to the couple of Gunawan and Nining, whom worked as a rubbish picker, their daughter, Fitri, 10 years old was
a victim of kidnapped. The Tragedy started when Gunawan dan Nining met a man called Ryan. They were feel sorry to Ryan which is have no job. They asked Ryan to join them as a rubbish picker and clean up the train station. They didn’t put any distrust to Ryan, except when Fitri was disappeared while Ryan was not find either. Along 2009, cases reported to national commission on the protection of the child noted around 42.000 cases, including 130 cases of children and baby. Apart from that , until now, there aren’t
all the
trafficking came out yet. The weak coordination within the institution and the weak of law enforcement made the case of human traficcking in Indonesia has increased day by day. C. Human Traficking to the Woman Woman is very reluctant to be a human trafficking as a sex commercial. Woman serve institution and Police officer in East Java have succeded to bring up the cases of woman trafficking between the island with the sexual commercial purposes.
Due to many parent reported
about the lost of their children, then made the police went down to searched for the lost people then found out it was the were kidnapped and placed in one place for sex commercial purpose in many orther place around Indonesia. They were placed in one hotel, then police found 74 women that were victim of trafficking. From their confession, known that the modus is started from bus station in East Java, they were picked up
by the trafficker since looked confused in the station, so they offered with job with high income. Trafficking can be caused due to the less of the job field offer, because of the high income and lack of education.
BAB IV CLOSING
A. Conclusion The higly increasing cases of trafficking specially victim from Indonesia, then the Law number 21 year 2007 can be mentioned is not implemented properly due to the less of socialization into the society. Many people are still not understand yet of the trafficking. The law enforced can not be done in partial either, must be touched down to all the sector in a state. So the solve of matter which is need a comprehensive map about the matter, apart from that, the willingness of government
and
contribution of all people in one country in order to solve the human trafficking. B. Suggestion The prevent of the human trafficking can be done, like in the following: 1. Mapping the problem of the human trafficking in Indonesia, even for domestic and abroad purpose. 2. Increasing the education of Indonesian People especially alternative skill for children and woman, including the facilities. 3. Increasing the people knowledge trough sharing information of trafficking and related aspect.
4. Necessary to provide
a guarantee of family access especially for
woman and children in get an education, train, increasing income and social serve. 5. The Government and NGO should be socialize the law of human trafficking
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