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.

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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.