This article departs from a quote that the author took from the PUSKAPA Study on the Juvenile Criminal Justice System in 2019. In the report entitled “Second Chance in Life: Restoring Opportunities for Children in the Juvenile Criminal Justice System in Indonesia” it is written:
“Because it’s not the mistakes that define their identity but the lessons they learn. Because every child, like every human being in the world, deserves a second chance.”
Providing a “second chance” for children in conflict with the law is actually something that our current legal system is fighting for, especially in the Juvenile Criminal Justice System in Indonesia. Then, how is the law able to create a “second chance” for these children? The answer is to adopt and apply the concept of “restorative justice”. However, has restorative justice worked? Or is restorative justice just legal rhetoric? This paper will review how the concept of restorative justice is coveted as a way to embrace and remove stigma on the children, but it has not been fully reflected in real cases in the field.
At a Glance of Children in Conflict with the Law in Indonesia
In our society, there are often misguided views on children in conflict with the law. The assumption that these are the children who commit a criminal act, in essence, is not correct. Law No. 11 of 2012 concerning the Juvenile Criminal Justice System (“SPPA Law”) defines children in conflict with the law (“ABH” in Indonesian) as perpetrators of criminal acts, children who are victims of criminal acts, and children who are witnesses of criminal acts.
Therefore, talking about “second chances” for ABH means not only for children who have made mistakes, but also for those who are victims and witnesses. This is why the juvenile criminal justice system must be a complete package – on the one hand preventing the punishment of child perpetrators and on the other hand maintaining the perspective of child victims and protecting child witnesses.
The 2016-2020 Child Complaints Cases published by Indonesian Child Protection Committee (KPAI) show that the trend of the cases of children in conflict with the law is concentrated in cases of physical violence (abuse, beatings, fights, etc.) and sexual violence (rape/obscenity). The number of cases has indeed decreased over the last 4 years, where for example, the number of children as perpetrators of physical violence, which was originally 108 children in 2016 decreased to 58 children in 2020. However, we cannot forget the fact that there are still many cases that may not be raised to the surface. The outbreak of the Covid-19 pandemic has also added to the row of children cases as perpetrators in several regions, especially Central Java, which experienced an increase in cases of up to 10%.
In the midst of boredom at home, many children fall into immorality and theft because they play outside with their friends without parental supervision and guidance.
Apart from the facts and data regarding the case of children as the perpetrators, the thing that deserves more attention is the relatively high level of punishment (detention and imprisonment) for these children. The PUSKAPA study shows that 90% of children who are processed in court are sentenced to imprisonment. Approximately 40% of children are held in adult facilities, and only a small percentage of cases (2%) are recorded using alternative forms of detention, such as city arrest and house arrest. Detention and imprisonment were also found to be carried out against children under the age of 14.
So, where is the restorative justice echoed by the Juvenile Criminal Justice System in Indonesia?
Restorative Justice: Starting from Revenge to Recovery
Restorative justice is a meeting between the victim and those who committed the crime. Howard Zehr, an American criminologist – renowned as a pioneer of the modern concept of restorative justice – provides some very interesting simple illustrations of restorative justice.
“A family meets the teens who robbed their home, expresses their feelings and negotiates a redress solution.
Parents meet the man who killed their daughter to tell about the repercussions and get answers to their questions.
A school principal and his family meet a boy who detonates a pipe bomb in their front yard, narrowly missing the principal and their infant child. Family and neighbors’ fears of a repeat of the incident were relieved and the boy, for the first time, understood the magnitude of the repercussions of his actions.”
Zehr also said, “If we look at it from the lens of restorative justice, then crime is a violation of people and their relationships. This creates an obligation to make things right. Justice engages victims, perpetrators and communities in the search for solutions that promote repair, reconciliation and certainty.” The key words are repair, reconciliation, and closure or broadly speaking, recovery. Whether it’s recovering child victims and their families from physical, psychological, and financial impacts, recovering child offenders from pressure so that they realize the impact of their actions, and restoring society from fears of recurring crimes, all of these are ideal goals to be achieved from the concept of restorative justice.
The concept of restorative justice itself began to develop in the 1970s as an effort to correct weaknesses in the western legal system that ignored victims and their interests.
So far, the legal system has always focused on what the perpetrators did. There is a growing disquiet in society where punishments given to offenders are often ineffective, so restorative justice is aimed at helping offenders realize the harm they have caused and encourage them to correct it.
Through the presence of the concept of restorative justice, the criminal law system has begun to experience a shift in perspective, from initially focused on retaliating for the actions of the perpetrators, to restoring victims to their original state. This is what is adopted in the Juvenile Criminal Justice System in Indonesia today through the SPPA Law. Restorative Justice is defined as:
“settlement of criminal cases by involving perpetrators, victims, families of perpetrators/victims, and other related parties to jointly seek a just settlement by emphasizing recovery to its original state, and not retaliation.”
In principle, restorative justice has 3 important elements: first, in the settlement of children’s cases it is sought so that the perpetrator and his family as well as the victim and his family can sit together to discuss how to resolve the problem including how to provide recovery to the victim (dialogue); second, giving punishments to perpetrators that are educational in nature so as to provide benefits to both perpetrators and victims; and third, using two approaches, the victim-offender mediation approach as applied in North America and the court-based restitutive and reparative measure as practiced in England. Then, what kind of approach is commonly used in our legal system to implement restorative justice?
Diversion: Turning Sentencing Into a Dialogue and Mediation Process
In line with the Guidelines for the Implementation of Restorative Justice in General Courts, the approach used in restorative justice is a process of dialogue and mediation involving the perpetrator, victim, family of the perpetrator/victim, and other related parties to jointly create an agreement on a fair settlement of criminal cases for both the victim and the perpetrator. In the SPPA Law, this approach is known as diversion, namely the transfer of the settlement of children’s cases from the criminal justice process to a process outside of criminal justice. What do we need to know about diversion?
What is the goal of diversion?
As mandated by the SPPA Law, diversion aims to: (a) achieve peace between child victims and child perpetrators; (b) resolve child cases outside the judicial process; (c) prevent child perpetrators from being deprived of liberty; (d) encourage the public to participate; and (e) instill a sense of responsibility in child offenders.
To whom diversion is applied?
Diversion is applied to children who are 12 years old but before 18 years old, or 12 years old and married but not yet 18 years old, who are suspected of committing a crime or crime.
Regardless of the age range above, the diversion agreement must be applied to child offenders who are under 14 years old because they cannot be sentenced, but can only be subject to actions, such as: returning to parents, hand over to another caregiver, treatment in a psychiatric hospital or Implementation of Social Welfare Body (LPKS), the obligation to attend formal education or training held by government/private bodies, revocation of driver’s license, etc.
When is diversion mandatory in cases of children?
Whether at the level of investigation by the police, prosecution by public prosecutors and examination of cases in court by judges, diversion must be attempted if:
How is the diversion process enacted?
Diversion is carried out through deliberation involving the children in conflict with the law and their parents/guardians, victims and/or their parents/guardians, community advisors, and professional social workers, with the following stages:
What’s in the Diversion Agreement?
The results of the diversion agreement can take the form of, among others:
The most common diversion agreement is the return of the child to the parents or compensation. Unfortunately, the practice of returning children to their parents in accordance with the law is not supported by the availability of rehabilitation and reintegration programs. The compensation is also applied without clear standards and has the potential to increase the burden on children from weak socio-economic backgrounds.
What if diversion is not achieved or cannot be implemented?
Judges still have to make decisions with a restorative justice approach. After reading the charges in the first trial, the judge must proactively encourage the parties to seek peace. If a peace agreement is reached, the judge will include it as a consideration in his decision. However, if this is not achieved and the judge imposes a prison sentence on the child, the judge must clearly and firmly determine the location of the Children Guidance Institution (Lembaga Pembinaan Khusus Anak (LPKA)) where the child will be placed and coordinated with relevant officers and P2TP2A.
Reflection on the Application of Diversion in Real Cases
The case of the fight between SR and DR. A grade 2 student at elementary school Lengkoweng, Sukabumi Regency, West Java with the initials SR (8 years old) died after allegedly fighting with his own friend with the initials DR in the school yard. The second grade homeroom teacher, Ruhiyat, found DR crying on his return from the school grounds because he saw SR fainted after getting into a fight with him. In handling this case, the Sukabumi Police formed a team consisting of the Correctional Agency (Bapas), the Social Service (Dinsos), the Child Protection Commission (KPA), and the Integrated Service Center for the Protection of Women and Children (P2TP2A). Based on the results of the agreement, the team decided to apply Article 21 of the SPPA Law in which there are 2 options, namely returning the child to his parents or involving the child in coaching, education, and mentoring programs in government agencies or LPKS for a maximum of 6 months. The team chose the second option, which was to include DR in LPKS in the Sukabumi area. This decision has been approved by the victim’s family after going through the mediation process and reaching peace.
RJ’s case of insults and hate speech. One of the cases that had gone viral in Indonesia was the case of insults and hate speech by a teenager with the initials RJ (16 years old) to the President of the Republic of Indonesia, Joko Widodo. RJ is famous for his videos spread on social media and the contents show that he wants to challenge the President of Indonesia to the point of threatening to behead the President of the Republic of Indonesia, not only that, he says that the President of Indonesia is his “Servant”. RJ made threats and ridicule to the President of the Republic of Indonesia because of internal motivation, and also because of the bets from RJ’s own friends. For his actions, RJ was placed in the Marsudi Putra Handayani Social Home to attend rehabilitation. In RJ’s case, the diversion process was carried out with the final decision being to return RJ to his parents.
The Gladiator-style Bomb-like Fighting Case. The case, which started with the tradition of playing game of “bombs-like” on the basketball court of Negeri 7 Bogor high school, killed 1 student of Budi Mulya high school, Hilarius Christian Event Raharjo. The students from the 2 schools were involved in a fight witnessed by the crowd (like a gladiator fight). Two of the 3 child offenders were sentenced to 2 years in prison by the Bogor District Court and required to carry out social work at the Bina Daksa Cibinong Vocational Rehabilitation Center for 3 months. The judge’s consideration was that the child perpetrator had committed a serious crime that caused anxiety and severe trauma for the victim’s family.
MP Drug Case. MP (16 years old) is a child detained at the Palopo Police Headquarters, South Sulawesi for narcotics cases. Because he was involved in a narcotics case, MP was detained in an adult detention center which should not be a place of detention for children. In this case, no attempt was made for diversion. ICJR notes that a serious problem is that in narcotics cases, the SPPA Law is powerless even though the perpetrator is still a child (under 18 years). This is because one of the diversion requirements for child offenders is that the child does not commit a crime which carries a prison term of less than 7 years. The problem is, in violation of the Narcotics Law, the majority of criminal penalties are above 7 years, except for Article 127 (Narcotics Users). This is also a dilemma because often in the application of criminal articles in the Narcotics Law, users are not only prosecuted by Article 127 (the article on users to be rehabilitated) but often with articles of ownership, namely Article 111/112 of the Narcotics Law.
The four cases above are just a reflection of the application of diversion. In the case of SR and DR fights as well as the case of RJ’s insults and hate speech, RJ managed to apply diversion because the case was punishable by under 7 years and the perpetrator was under 18 years old. Meanwhile, in the case of gladiator-style bomb fighting and the MP drug case, the diversion process was abolished and the imprisonment of children was applied because the case was punishable by over 7 years of age, regardless of the fact that the age of the perpetrator was under 18 years old.
In the author’s opinion, the application of diversion in the juvenile criminal justice system must be carried out consistently. From the four cases above, basically, law enforcers have sufficient understanding and are able to determine when diversion is mandatory and when it is not. However, this understanding must always be balanced with the consistent application of diversion in every case that does qualify for diversion. In addition, specifically for cases of children involved in narcotics, law enforcers need to pay special attention to the problem of unclear application of criminal articles against narcotics users. This lack of clarity is very detrimental to the position of children where children should also be seen as a “victim” of drug users who have the right to rehabilitation, not just looking at their possession of illegal drugs. With this point of view, children should not be charged with multiple articles and have the right to diversion because the penalty for using narcotics is under 7 years.
Without the application of maximum diversion, restorative justice will be difficult to achieve. First and foremost, the criminal justice system must have a view that the children’s actions are a consequence of structural problems that occur in society, not merely the child’s sole intention. That way, the concepts of restorative justice and diversion efforts will be more easily accepted, adopted and applied optimally in our legal system. Restorative justice for children in conflict with the law can help to embrace them to return to society and reduce negative stigmas that hinder their path to a better life
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