Legal Literacy - This article discusses in depth about Diversion in the Juvenile Criminal Justice System in Indonesia.
Restorative Justice in Juvenile Criminal Cases
Indonesia is entering a new era in the Indonesian criminal law system. The renewal of Indonesian criminal law has led to many developments, one of which is restorative justice (restorative justice) as a criminal law paradigm that emphasizes the goal of achieving justice through recovery and improvement of the situation after a criminal event. Restorative justice emphasizes justice with retaliatory efforts, while restitutive justice emphasizes justice on compensation. Views on a crime also differ between retributive justice (crime is formulated as a violation against the state) and restorative justice (crime is formulated as a violation of one person against another). Therefore, this writing will discuss in detail everything about diversion in juvenile criminal law.
In this case, government officials are expanded as widely as possible their authority through discretionary efforts as stipulated in Law No. 2 of 2002 concerning the National Police of the Republic of Indonesia. Of course, law enforcement officials through discretionary efforts can take authority in a criminal act with a certain action to stop or continue through a policy that has been made. In addition, the diversion system is an obligation that must be carried out in the juvenile justice process as Law Number 11 of 2012 concerning the Juvenile Criminal Justice System (hereinafter referred to as the UU SPPA).
Children are the nation's generation in the future who will continue the relay of a nation's government, therefore of course there must be regulations on special legal protection for children. The Convention on the Rights of the Child (Convention on the Rights of the Child) which has been ratified in Presidential Decree Number 36 of 1990, Law No. 4 of 1979 concerning Child Welfare and Law Number 23 of 2002 concerning Child Protection and Law Number 11 of 2012 concerning the Juvenile Criminal Justice System. All of these regulations seek to protect children's rights with general principles, namely non-discrimination, respecting children's participation, paying attention to children's survival, and prioritizing the best interests of children's welfare.
History of the Diversion Concept
The concept of diversion began in the 19th century which was the beginning of the establishment of juvenile justice which aims to ensure that the treatment of children is not equated with the treatment of adults. Diversion is present as a non-penal approach or persuasive action and provides children with the opportunity to correct mistakes.
The presence of diversion, the main goal is that children do not get coercion, torture, and violence in the judicial process until their conviction. The background of the implementation of diversion is as a preventive effort against the negative effects that potentially arise on psychological development if the settlement is carried out through the criminal justice system in general. Diversion has urgency in guaranteeing children's human rights and preventing stigma as naughty children against children in conflict with the law. Therefore, the law can be enforced without torture and violence against children and provide opportunities for children to correct mistakes without going through criminal punishment by the state that has power in a country.
Diversion Objectives
Diversion is a process of diverting children's criminal cases from the criminal justice process to outside the criminal justice process which only applies to children aged 12 years to children who have not reached 18 years as stipulated in Article 1 of the SPPA Law. It is also explained in Article 6 regarding the objectives of diversion, including:
- achieving peace between the victim and the Child;
- resolving Children's cases outside the judicial process;
- preventing Children from deprivation of liberty;
- encouraging the community to participate; and e. instilling a sense of responsibility in Children.
In its application, diversion must of course pay attention to 2 formal requirements as stated in Article 7 paragraph (2) of the SPPA Law. The first requirement is that the crime committed by the child is a crime with a threat of imprisonment of under 7 years. The second requirement is that the crime committed by the child is not a repetition of a crime.
The result of holding diversion is an agreement between the two parties. The agreement must obtain the approval of the victim, unless the crime is a violation, a minor crime (a crime punishable by a maximum imprisonment of 3 months), a crime without a victim (crime without victim), or a crime whose value of loss is no more than the local provincial minimum wage.
Termination of Diversion
Diversion can end with an agreement in the form of:
- peace with or without compensation;
- return to parents/Guardians;
- participation in education or training at LPKS for a maximum of 3 months; or
- community service
Diversion Settings
The implementation of diversion is stated in PERMA Number 4 of 2014 concerning Guidelines for Implementing Diversion in the Juvenile Criminal Justice System. After the issuance of the Decree of the Head of the Court regarding diversion, the relevant judge/facilitator issues a Decree on the day of the Diversion Deliberation. The implementation of diversion in court is attended by the parties accompanied by community advisors, professional social workers, community representatives, and other parties deemed necessary to be involved in the diversion deliberation.
The failure of the diversion process according to the report from the community guidance officer of the correctional center, the judge as facilitator can continue the case into the trial which is subject to the Juvenile Criminal Procedure Law. The judge is also obliged to consider the implementation of part of the diversion agreement. Whatever the contents of the diversion agreement, the judge/diversion facilitator cannot be held liable for civil or criminal liability.
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