Legal Literacy- This article discusses the types of child criminal offenses that can be resolved through the mechanisms regulated in the Juvenile Criminal Justice System Law (UU SPPA). This article explains the concept of diversion or restorative justice in the UU SPPA and the mechanism for resolving cases through penal mediation. This article also explains the stages in the implementation of diversion, namely diversion efforts, diversion deliberations, diversion agreements, and implementation of diversion agreements.

This article provides information about the types of criminal acts that can be resolved through diversion, the conditions that must be met to carry out diversion, and the results of diversion agreements that can be achieved.

Types of Criminal Acts that Can Be Resolved Through the Mechanisms Regulated in the UU SPPA

Law Number 12 of 2012 concerning the Juvenile Criminal Justice System (UU SPPA) clearly affirms the existence of a penal mediation model practice, which appears in the general provisions of the UU SPPA with the term restorative justice or diversion, which in essence is about the implementation of mediation.

Article 7 of the UU SPPA explains that the penal mediation mechanism in criminal acts committed by children or what is commonly referred to as “diversion” is carried out at the investigation, prosecution, and examination of Children's cases in the district court, even up to guidance during the process of carrying out criminal sanctions or actions and after undergoing criminal sanctions or actions. Diversion is the transfer of settlement of children's cases from the criminal justice process to settlement outside the criminal justice process. Diversion is carried out in the event that the type of criminal act committed:

  1. Is threatened with imprisonment of under 7 (seven) years; and
  2. Is not a repetition of a criminal act.

In relation to these two requirements, it can be understood that every Children's case that does not meet both or one of these requirements, then diversion efforts are not carried out for the case and it is resolved through the judicial process.

According to Article 10 of the UU SPPA, the penal mediation mechanism can be carried out for criminal acts in the form of violations, minor criminal acts, criminal acts without victims, or the value of the victim's loss is no more than the local provincial minimum wage.

Mechanism for Resolving Cases with Penal Mediation

In short, here are the stages in the implementation of diversion:

1. Diversion efforts (offer)

Offering is an important process in interpreting diversion with a restorative justice approach, because the restorative process must be built from respect for the parties (perpetrators and victims) who will resolve the conflict arising from the criminal act.

2. Diversion deliberation

Diversion deliberation is a consultative forum where:

  • Victims will openly share their feelings and experiences about what they felt after the crime occurred, for example: the victim's difficulty in going to work as a courier when his motorbike was stolen by the perpetrator (Child), then the Child must be able to understand the victim's feelings. Victims can openly express their feelings to overcome the losses caused by criminal acts;
  • The community can understand the causes of crime and participate in preventing crime;
  • Children also gain insight into the impact of their behavior and take responsibility in a meaningful way to restore what they have damaged or the conflict that occurred as a result of their actions.

3. Diversion agreement

The Diversion Agreement must obtain approval from the victim and/or family of the victim as well as the willingness of the child perpetrator and his family. However, if the above does not result in an agreement, it can be done by investigators together with the perpetrator and/or his family, Community Advisors, and can involve community leaders. Meanwhile, if the Diversion Deliberation succeeds in reaching an agreement, the facilitator compiles and formulates it in the Diversion Agreement. The results of the Diversion agreement are stated in the form of a Diversion Agreement Letter.

The results of the diversion agreement can take the form of, among other things: peace with or without compensation for losses, return to parents/guardians, participation in education or training at educational institutions or Child Social Welfare Institutions (LPKS), and community service.

4. Implementation of the Diversion Agreement

If an agreement is reached, every official responsible for implementing the diversion must issue a letter of termination of investigation, termination of prosecution, termination of case examination. Furthermore, if no agreement is reached within the specified time, the community advisor must immediately report to the official to follow up on the examination process.

5. Supervision and Reporting of Diversion Agreements

If the diversion agreement is not implemented or is not fully implemented within the specified time, the Community Advisor is obliged to report to the authorized official, namely the Head of the local District Attorney's Office, to be followed up in the criminal justice process.

6. Closing Children's Cases Resolved with Diversion Administratively

Parties Involved in Resolving Cases with Penal Mediation Mechanisms

Article 8 of the UU SPPA explains that the settlement of cases with penal mediation or the diversion process is carried out through deliberation involving: Criminal perpetrators (Children) and their parents/guardians, victims of crime and/or their parents/guardians, Community Advisors and Professional Social Workers.

In addition, the deliberation may involve Social Welfare Workers, and/or the community, as well as better mediators or facilitators from law enforcement, namely the police, prosecutors, legal advisors, courts, correctional officers, and the government, NGOs, or community leaders.

Penal Mediation Regulation Model in the Juvenile Criminal Justice System Law

The penal mediation regulation model is included in the theory of justice, namely the theory of restorative justice. This means that the criminalization carried out against children is more focused on maintaining public order, and punishment becomes a means to protect society while also providing guidance for perpetrators of crime.

In this case, the model in question is the victim-offender mediation model, which involves various parties in a meeting attended by an appointed mediator. Mediation can be held at every stage of the process, both at the stage of deviation from prosecution, the stage of police discretion, the stage of sentencing, or after sentencing.

In addition, the concept of the model of sharing the burden of responsibility is also closely related to the concept of restorative justice by involving all interested parties to identify losses, needs and obligations, to restore and obtain rights that may be obtained.

Diversion efforts oriented towards the restorative justice approach model are centered on the needs of victims, perpetrators of crime, and society. In every criminal act, the victim is the first person to suffer as a result of the crime. Then, the perpetrator, as the party who committed the crime, is required to take responsibility for his actions. Society must also be restored because crime also damages the harmony of life in society.

Differences in Diversion Mechanisms between Child Offenders Under 12 Years of Age and Those Who Are 12 Years of Age or Older

There are differences regarding the diversion mechanism between child offenders who are not yet 12 years old and those who are 12 years old or older, but they are not too significant because the essence of both is the same, namely producing a diversion agreement and prioritizing restorative justice.

In the event that a child under the age of 12 commits or is suspected of committing a criminal act, the Investigator together with the Community Counselor and Professional Social Worker must make a decision to hand him/her over to his/her parents/guardian or include him/her in an education program, guidance at a government agency or social welfare organizing institution that handles social welfare at the central and regional levels, for a maximum of 6 (six) months. This is regulated in Article 21 of the Juvenile Criminal Justice System Law jo.

Article 67 of Government Regulation Number 65 of 2015 concerning the Implementation of Diversion and Handling of Children Under 12 (Twelve) Years of Age. The age limit of 12 years for children to be brought to a children's court is based on sociological, psychological and pedagogical considerations that children who have not reached the age of 12 are considered unable to be held accountable for their actions.

Meanwhile, in the event that a criminal act is committed by a child before the age of 18 and is brought to court after the child exceeds the age of 18 but has not reached the age of 21, he/she will still be brought to a children's court (Article 20 of the Juvenile Criminal Justice System Law). Article 26 paragraph (1) of the Juvenile Criminal Justice System Law states that the investigation of children's cases who are 12 years of age but have not reached the age of 18 is carried out by an Investigator appointed based on the Decree of the Chief of the Indonesian National Police or other official appointed by the Chief of the Indonesian National Police. In addition, arrests and detentions are also regulated with the condition that the child is 14 years of age or older and is suspected of committing a criminal act with the threat of imprisonment of 7 years or more and the child may be subject to criminal sanctions or actions.

Weaknesses of Settlement through Penal Mediation in the Juvenile Criminal Justice System Law

There are several weaknesses in settlement efforts through penal mediation, such as the absence of appropriate guidelines to ensure that the penal mediation process runs effectively and meets ethical principles. For example, criticism of the lack of formal training for mediators in mediation practices between perpetrators and victims. In addition, victims receive inadequate protection because quite a few victims experience re-victimization when confronted directly with the perpetrators of crime.

Read Also:Comprehensively Exploring the Legal Opinion Position in the Indonesian Legal Perspective

The Juvenile Criminal Justice System Law has not regulated what happens if an agreement has been reached on diversion in court, but in the end one of the parties does not fulfill its obligations. The unbalanced position between the perpetrator and the victim also makes the mediation process not run well and instead leads to ineffective tendencies. Penal mediation can only be carried out effectively if both parties have a balanced position.

Reference

  • Law Number 12 of 2012 concerning the Juvenile Criminal Justice System
  • A Tridiatno, Yoachim. Restorative Justice. Yogyakarta: Cahaya Atma Pustaka, 2015.
  • Syakirin, Ahmad. “Relevance of Penal Mediation in the Application of Child Case Diversion.” e-Journal Al-Syakhsiyyah Journal of Law & Family Studies 2, no. 2 (2020): 364–92.
  • Compilation Team of the Education and Training Agency of the Republic of Indonesia Module. Juvenile Criminal Justice System Module. Jakarta, 2019.

*This article is the author's personal opinion and does not represent the views of the Literasi Hukum Indonesia editorial team.