The Indonesian Criminal Law System is entering a new phase in its development. One form of renewal in Indonesian Criminal Law is the regulation of criminal law in the perspective and achievement of justice for the improvement and restoration of the situation after criminal justice events and processes known as restorative justice (restorative justice) which is different from retributive justice (emphasizing justice in retaliation ) and restitutive justice (emphasizing fairness in compensation). When viewed from the development of criminal law and the nature of modern convictions, it has introduced and developed what is called the “Doer-Victims” Relationship approach. A new approach that has replaced the approach of deeds or actors or “daad-dader straftecht”. Legal experts have introduced a formula of justice, especially in the enforcement of human rights, that there are 3 aspects of the approach to building a legal system in the context of modernization and legal reform, namely in terms of structure, substance and culture, all of which are worthy of running integral, simultaneous and parallel.
Children are part of citizens who must be protected because they are the nation’s generation in the future who will continue the leadership of the Indonesian people. Every child besides being obliged to get formal education such as school, is also obliged to get moral education so that they can grow into a useful figure for the nation and state. In accordance with the provisions of the Convention on the Rights of the Child ratified by the Indonesian government through Presidential Decree Number 36 of 1990, then also set forth in Law Number 4 of 1979 concerning Child Welfare and Law Number 23 of 2002 concerning Child Protection and Law Number 11 Year 2012 concerning the Criminal Justice System for Children which all express general principles of child protection, namely non-discrimination, the best interests of children, survival and development and respect for children’s participation.
Read too : Court Leaders of Quality and Integrity
Legal protection for children can be done as an effort to protect the law against various freedoms and children’s rights. Protection of children also includes interests related to child welfare. Protection of children dealing with law (ABH), is a shared responsibility of law enforcement officials. Not only children as perpetrators, but also includes children who are victims and witnesses. Law enforcement officials involved in handling ABH should not only refer to Law Number 11 of 2012 concerning the Juvenile Justice System or other legislation relating to the handling of ABH, but prioritize peace over the formal legal process that began to be enforced 2 years after the SPPA Act was enacted or 1 August 2014 (Article 108 of Law No. 11 of 2012).
The Supreme Court responded to the Child Criminal Justice System Act very progressively. Indonesian Supreme Court Chief Justice Muhammad Hatta Ali signed Supreme Court Regulation (PERMA) Number 4 of 2014 concerning Guidelines for the Implementation of Diversity in the Juvenile Justice System even before Government Regulations which are derived from the SPPA Law were issued. The important point of the PERMA is that the Judge is required to resolve the ABH problem with the Diversi program which is a legal procedure that is still very new in the system and renewal of criminal law in Indonesia. In addition, this PERMA also contains procedures for implementing diversion that are the guide of Judges in the criminal settlement of children, bearing in mind that there is no regulation that contains specific procedural law for the diversion of the juvenile justice system.
Diversity and Restorative Justice
The juvenile justice system is all elements of the criminal justice system that are involved in handling ABH cases. Police, Attorney and Court and Community Guidance or Correctional Institution, Advocates or assistance providers, Special Child Development Institution (LPKA), Temporary Child Placement Institution (LPAS) and Social Welfare Organization (LPKS) as institutions or institutions that treat ABH starting from children touch with the justice system, determine whether the child will be released or processed in juvenile court to the stage when the child will be placed in choices, ranging from being released to being included in a punitive institution in the corridor of restorative justice. This is consistent with:
- The 2000 UN Declaration on the Basic Principles on the Use of Restorative Justice Programs in Criminal Matters (United Nations Declaration on The Basic Principles on the Use of Restorative Justice Programs in Criminal Matters
- Vienna Declaration on Crime and Justice (Vienna Declaration on Crime and Justice: “Meeting the Challanges of the Twenty-First Century”) items 27-28 concerning Restorative Justice
- The XI United Nations Congress in Bangkok in 2005 on the Prevention of Crime and Criminal Justice (Eleventh United Nations Congress on Crime Prevention and Criminal Justice) in item 32: “Strategic alliance in the prevention of criminal acts and criminal justice (Synergies and Responses: Strategic Alliances in Crime) Prevention and Criminal Justice) “
Furthermore, it is regulated in Law 11 of 2012 and PERMA 4 of 2014
According to the SPPA Diversi Law is the transfer of the settlement of cases of children from criminal justice processes to processes outside of criminal justice, which aim to:
- Achieve peace between victims and children;
- Settling cases of children outside the judicial process;
- Preventing Children from deprivation of independence;
- Encourage people to participate; and
- Instill a sense of responsibility to the child.
According to PERMA 4 2014 Diversity Conference is a discussion between parties involving children and parents / guardians, victims and / or parents / guardians, Community Guidance, Professional Social Workers, representation and other parties involved to reach agreement on diversion through an approach restorative justice. Whereas the Facilitator is a judge appointed by the Chief of the Court to handle the case of the child concerned. Diversion is the transfer of processes in a long and very rigid child case resolution system. Mediation or dialogue or deliberation as an inseparable part of diversion to achieve restorative justice.
Punishment for child offenders does not then achieve justice for victims, considering that from the other side it still leaves its own unresolved problems even though the perpetrators have been sentenced. Seeing the principles of child protection, especially the principle of prioritizing the best interests of children, it is necessary to settle children’s cases outside the criminal mechanism or commonly called diversion. Punishment institutions are not a way to solve children’s problems because they are prone to violations of children’s rights.
Therefore we need an event and procedure in the system that can accommodate the settlement of cases, one of which is to use a restorative justice approach, through a legal reform that does not merely change the law but also modifies the existing criminal justice system, so that all objectives what is needed by the law is achieved. One form of the restorative justice mechanism is the dialogue among Indonesian people better known as “deliberation for consensus.” So that diversion especially through the concept of restorative justice becomes a very important consideration in resolving criminal cases committed by children.
If the diversion agreement is not carried out entirely by the parties based on a report from the Community Guidance Correctional Institution, the Judge shall continue the examination of the case in accordance with the Child Criminal Procedure Law. The judge in issuing his decision must consider the implementation of some diversion agreements.
In PERMA 4 of 2014 it is explained that Diversion is applied to children who are 12 (twelve) years old but not yet 18 (eighteen) years old or have been 12 (twelve) years old even though they have never married but are not yet 18 (eighteen) years old , who is suspected of a criminal offense (article 2). This PERMA also regulates the stages of deliberation, where facilitators appointed by the Chairperson of the Court must provide opportunities to:
- Children to be heard information about the indictment
- Parents / Guardians to convey matters relating to the child’s actions and the expected form of settlement
- Victim / Child Victim / Parent / Guardian to provide response and expected form of settlement.
If deemed necessary, the diversion facilitator can call on community representatives or other parties to provide information to support the settlement and / or can hold a separate meeting (Caucus). Caucus is a separate meeting between the Diversity Facilitator and one party that is known by the other party.
Children are a mandate from God Almighty who inheres dignity and dignity as whole human beings. The rights of every child have the obligation to be upheld without the child asking.
ABH cases brought in the judicial process are serious cases, they also must always prioritize the principle of the best interests of children, and the process of punishment is the last resort (Ultimum Remedium) while still not ignoring the rights of the child’s rights. Beyond that child cases can be resolved through non-formal mechanisms based on standardized guidelines. Forms of non-formal handling can be done with diversion as a mediation process facilitated by law enforcement at every level to achieve restorative justice that can be resolved by requiring children who are in conflict with the law to attend education or training at certain institutions such as other actions carried out with remedies for children and victims, or if forced to do punishments of children’s rights should not be ignored. So that in the end the informal handling can be carried out well if it is balanced with efforts to create a conducive justice system.
In fact, diversion can also be described as a system where the facilitator manages the process of resolving parties to reach a satisfactory resolution as restorative justice. The tradition and mechanism of deliberation to reach consensus is a concrete manifestation in strengthening the law that has lived in society for a long time. Thus, the core of restorative justice is healing, moral learning, community participation and attention, dialogue, forgiveness, responsibility and making changes, all of which are guidelines for the process of restoration in the perspective of restorative justice.
July 23rd is National Children’s Day and November 20th is World Children’s Day. At present all Courts up to the regional level continue to prepare facilities and infrastructure to respond to and support the implementation of the Criminal Justice System for Children. There is no other choice, all parties must be careful and serious in preparing human resources, facilities and infrastructure to support the Juvenile Justice System, especially the Facilitator, Judicial Justice and the Court as the last bastion in the process of resolving children before the law in the Court.
Congratulations on conducting Criminal Reform.
Hopefully it is useful and God Almighty protects us all.
Dr. RIDWAN MANSYUR, SH., MH
Source : Mahkamah Agung RI