Vol.4, No.05, Mei 2023

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P-ISSN: 2723-6595

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Jurnal Indonesia Sosial Sains, Vol. 4, No. 05, Mei 2023 439

RESTORATIVE JUSTICE CRIME OF NARCOTICS IN THE ELDERLY WITH

NARCOTIC EVIDENCE

Bayu Sasongko

, Megawati Barthos

, Suparno

1,2,3

Universitas Borobudur, Indonesia

Email: sasongkobayu06@gmail.com

, megawati_barthos@borobudur.ac.id

suparno@borobudur.ac.id

Corresponding Author: [email protected]

ARTICLE INFO

ABSTRACT

Submitted

:02-04-2023

Received

:05-04-2023

Approved

:15-04-2023

Abstract. The fact that there is numerous abuse of narcotics and

dangerous drugs in Indonesia today is inseparable from the many

modes and justifications used by these abusers in carrying out their

actions. The exploration is remembered for the regularizing

juridical assessment, the strategy involved by the creator as the

peculiarities concentrate on that happens connected with the

utilization of helpful equity in drug cases has been performed at the

examination site. The results are that the Crook Code Bill has

thought about the age of the more established in the criminal

system, by setting the age north of 75 years for guilty parties of

criminal goes about very far they are not open to confinement. In

the conversation of Article 72 of the Lawbreaker Code Bill, this age

limit was deferred, between the time of "north of 70 years" or

"more than 75 years" for culprits of criminal goes about quite far

they were not expose to detainment. This arrangement was one of

the issues forthcoming at the Detailing Group Meeting (Timus), yet

at the accompanying Timus Meeting concurred that "mature more

than 75 years" for culprits to try not to be condemned to jail quite

far (become Article 76), considering the future that the higher it is.

For the elderly who are caught in drug abuse cases, consider the

interests of the perpetrators who act as victims by prioritizing

rehabilitation efforts as the best way to return the perpetrators to

the condition they were in before committing drug abuse.

Keywords: Elderly, Drug

Abuse, Crime

Attribution-ShareAlike 4.0 International (CC BY-SA 4.0)

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1. Introduction

As one of the transnational crimes, the abuse of narcotics and dangerous drugs (Drugs) is

currently one of the crimes that have claimed the most victims. Not only workers, but also the

abuser group ranges from teenagers, the elderly, children, and housewives to executives,

officials, government officials, community leaders, police, politicians, the unemployed, lawyers,

doctors, and religious leaders are not free from the trap of this crime. Narcotics were originally

substances or drugs used in the field of health services and the development of science are now

often misused for specific purposes to gain profits for a group of people. As a result, many

aspects are affected from the personal side to the social side of the abusers.

As per the Law of the Republic of Indonesia Number 35 of 2009 concerning Opiates Article

1 letter a, Tranquilizers are substances or drugs got from plants or non-plants, both made and

semi-planned, which can cause a diminishing or change in cognizance, loss of taste, decrease to

dispose of feeling torment, and can incite reliance. Based on this definition, narcotics have

negative and dangerous effects for their abusers, which until now has become a serious concern

for the Government to suppress and even eradicate them.

The fact that there is a lot of abuse of narcotics and dangerous drugs in Indonesia today is

inseparable from the many modes and justifications used by these abusers in carrying out their

actions. The reason is that it's just a trial and error, wanting to run away from life's problems,

environmental and family factors, to health problems, making this crime a scourge that is

difficult to eradicate if it doesn't start from the abusers themselves. For this reason, the role of

the people closest to the government in general must be united in carrying out all efforts to

prevent and eradicate drug abuse. The crime of drug abuse is a serious crime in the country of

Indonesia until the sanction given by the court against the perpetrator is a serious sanction,

namely the death penalty.

Seeing the complexity of the laws and regulations governing drug abuse, the government

continues to make revisions regarding the nature of the law in eradicating drug crime so that it

is even more effective in handling it.

Several new provisions are stipulated in the Criminal Code Bill, one of which is regarding

the stipulation that perpetrators over 75 years of age should not be subject to imprisonment as

much as possible. Article 70 paragraph (1) states " while as yet considering the arrangements

alluded to in Article 52 and Article 54, detainment quite far isn't forced on the off chance that

conditions are found: (Kusumadewi & Rusdi, 2016)

a. the blamed is a kid;

b. the litigant is north of 75 (75) years of age;

c. the litigant has quite recently perpetrated a wrongdoing interestingly;

d. the misfortune and enduring of the Casualties are not excessively perfect;

e. the litigant has paid remuneration to the person in question;

f. the litigant didn't understand that the wrongdoing he carried out would cause an

extraordinary misfortune;

g. The wrongdoing happened in view of the extremely amazing actuation of someone else;

The survivor of a wrongdoing empowers or drives the event of the wrongdoing;

a. the criminal demonstration is the consequence of a circumstance that is probably not

going to repeat;

b. the character and conduct of the denounced guarantee that he won't perpetrate another

wrongdoing;

c. imprisonment will make extraordinary experiencing the denounced or his loved ones;

d. coaching outside the prison is supposed to find success for the denounced;

e. the burden of a lighter sentence won't diminish the serious idea of the wrongdoing

perpetrated by the litigant;

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f. Crimes happen inside the family; as well as

g. Crime happens because of carelessness.

Paragraph (2) states "The provisions referred to in paragraph (1) do not apply to crimes

punishable by imprisonment of 5 (five) years or more, crimes punishable by a special minimum

sentence, or certain crimes which are very dangerous or detrimental to society, or financial loss

or the country's economy."

Based on this article, related to the age factor, prison sentences should not be imposed on

child defendants and/or defendants over 75 (seventy-five) years. For kids, supportive equity

endeavors have gone through a long cycle in the adolescent equity framework in Indonesia.

Indonesia is one of the nations that has endorsed the Show on the Privileges of the Kid (KHA)

through Official Announcement Number 36 of 1990, which then was expressed in Regulation

Number 23 of 2002 concerning Youngster Security as changed by Regulation - Regulation

Number 35 of 2014 concerning Revisions to Regulation Number 23 of 2002 concerning Kid

Security; and Regulation Number 11 of 2012 concerning the Adolescent Law enforcement

Framework. These regulations contain the essential standards of youngster assurance,

explicitly non-isolation; the prosperity of the youngster; the right to life, perseverance, and

progression; and respect for youths.

The SPPA Law regulates in detail the process of criminalizing children. In contrast to the

sentencing process against ABH, the process of imposing a sentence on defendants aged over

75 (seventy-five) years is an update in sentencing in Indonesia. It seems that the rationale for

limiting imprisonment for the elderly (elderly) is based on the conditions of protection for

minority groups because their number is small compared to working age. In old age, a person

will experience a decrease in physical, psychological, and social abilities and again requires

dependence on others. Therefore, bringing the settlement of criminal cases committed by the

elderly there is a concern that will create a burden on them (Pahlevi, 2019) .

Aside from flogging for drug victimizers, one of the manners in which that can be taken is

as managed in the Law of the Republic of Indonesia Number 35 of 2009 concerning Opiates,

Article 54 states that Opiates junkies and casualties of opiates misuse should go through clinical

and social restoration (Rachmawati, 2018) . So it's not just imprisonment and fines. Every

abuser can also be given punishment in the form of rehabilitation.

2. Materials and Methods

Research on "Restorative Justice for narcotics crimes in the elderly with narcotic evidence,

Can Restorative Justice be Achieved?" is standardizing juridical examination, to be specific

exploration on certain lawful standards and legitimate standards which were done by assessing

the applicable lawful standards (legal guidelines) (S Soekanto, 1985) . This method is used by

the author as a form of study of the phenomena that occur related to the application of

restorative justice in drug cases from research site. In view of the methodology technique

utilized, this exploration utilizes a subjective methodology. The information utilized in this

examination is optional information, which is acquired from the investigation of writing. The

planned optional information incorporates essential lawful materials and auxiliary legitimate

materials. The essential legitimate materials involved are regulations and guidelines connected

with lawful security for the older, including the Crook Code, Criminal System Code, and other

related regulations and guidelines, for example, Regulation no. 13 of 1998 concerning Old

Government assistance and Unofficial law no. 43 of 2004 concerning Execution of Endeavors to

Work on Old Social Government assistance (Presiden Republik Indonesia, 2004) .In the mean

time, auxiliary legitimate materials are acquired from surveys or remarks from specialists

contained in books and diaries, including those that can be gotten to through the web. Besides,

the gathered information were dissected utilizing subjective strategies.

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3. Results and Discussions

Efforts to Realize Restorative Justice for Elderly Actors

For ABH as well as security for the older is likewise a basic freedom. UU no. 39 of 1999

concerning Basic freedoms safeguards the older, who are remembered for a weak gathering.

Article 5 passage (3) of the Law states "Everyone who belongs to a vulnerable group of people

has the right to receive more treatment and protection concerning their specificity." The

elucidation of paragraph (3) states "What is meant by "vulnerable groups of people" include the

elderly, children, the poor, pregnant women, and people with disabilities."

The law that controls the old is Rule no. 13 of 1998 concerning More pre-arranged

Government help. The execution of public improvement which expects to make a fair and

prosperous society considering Pancasila and the 1945 Constitution has accomplished a social

condition that is improving and future is developing so how much older individuals is

expanding. Despite the fact that large numbers of the older are as yet useful and ready to

assume a functioning part in the existence of society, country, and state, they will confront

numerous restrictions because of their age (Istiqomah, 2016) .

As per Regulation no. 13 of 1998, the meaning of older is somebody who has arrived at the

age of 60 (sixty) years and over (Republik Indonesia, 2006).

As far as possible in Regulation no. 13 of 1998 is equivalent to the grouping of older (old)

as indicated by WHO and youthful old as per BPS, specifically 60 years and over. Nonetheless,

WHO actually arranges the old more than 74 years into advanced age (75-90 years) and

extremely advanced age (north of 90 years). Similarly, BPS characterizes the old into youthful

old, center old, and old. In light of these arrangements, the period of more than 75 years for old

culprits in the Crook Code Bill is over the advanced age specified in Regulation no. 13 of 1998.

Because of the age factor, an individual will confront numerous restrictions, subsequently

requiring help, albeit a significant number of the old are as yet useful and ready to assume a

functioning part in the existence of society, country, and state. UU no. 13 of 1998 recognizes the

older into Possible Old and Non-Expected Old. Potential old is old who are as yet equipped for

taking care of business as well as exercises that can deliver products and additionally benefits.

In the mean time, non-potential older is old who are frail to earn enough to pay the bills, so

their lives rely upon the assistance of others.

Taking into account the law, the age of the old in the Miscreant Code should contemplate

the age of the old as 60 years and have no potential for criminal arraignment. In any case, for

likely older individuals, as far as possible for old individuals who are not condemned to jail

however much as could reasonably be expected not entirely settled, in particular 70 years or

more. This is considering the future in Indonesia as per BPS in 2018 arriving at a normal of 71.2

years, as well as the grouping of the older as per WHO and the order of the old by BPS.

In examination, from the consequences of exploration on old lawbreakers in the US and

Europe, there is no understanding among specialists on what age ought to be utilized to order

"old." Fattah and Sacco (1989) note that a few examinations incorporate more seasoned

wrongdoers and survivors of more seasoned 50-year-olds; different scientists utilize 60 years

and over as an endpoint, yet different specialists have utilized 65 and over as the age to

characterize the old (Kratcoski & Edelbacher, 2016) .

The Convict Code Bill has pondered the age of the old in the criminal system, by laying out

the specific moment of more than 75 years for transgressors of criminal shows so especially

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that particularly far they are not open to control. In the conversation of Article 72 of the

Hooligan Code Bill, this age limit was surrendered, between the long periods of "over 70 years"

or "more than 75 years" for blameworthy gatherings of criminal displays so particularly that

extremely far they were not open to imprisonment. This game-plan was one of the issues

approaching in the Course of action Get-together Gathering (Timus), yet at the going with

Timus Meeting, it was concurred that "completely mature north of 75 years" for blameworthy

gatherings to stay away from restriction however much as could reasonably be expected

(become Article 76), taking into account the future that the higher it is. The aftereffects of the

Timus Meeting were as important embraced at the Working Chief Social affair on 28 May 2018.

The circumstances that should be met so the named authority can't drive a jail sentence are:

a. the litigant perpetrates a wrongdoing which is just deserving of detainment;

b. the judge was of the assessment that it was not important to force a jail sentence

subsequent to thinking about it:

- reason for condemning;

- condemning rules;

- rules for forcing jail sentences;

c. the litigant has never been condemned to detainment for a wrongdoing perpetrated

after the age of 18 years.

Regardless, this doesn't infer that more seasoned blameworthy gatherings will be

vindicated from criminal discipline. Judges are given the choice of convincing fines as a

substitute for constrainment against respondents who do terrible ways of behaving that are

basically justifying control, needed to beat the firm thought about the organizing of a particular

sentence which appears to guess that judges ought to drive jail sentences. What's more, it is

likewise planned to try not to force short jail sentences. Giving decisions to judges, considering

the objectives and rules for condemning, is in accordance with the objectives of condemning

embraced by the consolidated hypothesis, which needs to put together discipline with respect

to reprisal and furthermore keep social control.

Be that as it may, the circumstances for judges not to force fines are exceptionally severe.

As per Article 70 passage (2) of the Lawbreaker Code Bill, the arrangement for canceling

detainment for older guilty parties doesn't have any significant bearing to violations deserving

of detainment for 5 years or more, wrongdoings deserving of a unique least sentence, or certain

wrongdoings that are extremely destructive or hurt the general population, or monetary

misfortune or the nation's economy. There are numerous crook acts deserving of detainment

under five years in the Lawbreaker Code Bill. A few instances of violations deserving of

detainment for a limit of 4 years and underneath include: 1. Article 188: the wrongdoing of

spreading or fostering the lessons of socialism Leninism out in the open. 2. Article 213: criminal

demonstrations during wartime, without the point of aiding the foe or hurting the state to help

the foe. 3. Article 221: the wrongdoing of carrying out conspiracy to give an up the area of a

well disposed country, either in entire or to some degree from the force of the real government.

4. Article 246: the wrongdoing of prompting an individual who carries out a wrongdoing. 5.

Article 262: the wrongdoing of broadcasting or scattering counterfeit news that can cause riots

in the public arena. 6. Article 412: the lawbreaker demonstration of conventionality out in the

open. 7. Article 417: infidelity. 8. Article 420: foul demonstrations. 9. Article 429: the

wrongdoing of selling inebriating substances. 10. Article 439: slander. 11. Article 449: the

wrongdoing of revealing insider facts that should be kept due to position, calling, or obligations.

12. Article 501: deceitful demonstration.

An enormous number of violations deserving of detainment for 4 years or underneath

ought to be helpful for old wrongdoers since it permits judges not to force jail sentences.

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Nonetheless, with the circumstances that should be met by judges not to force jail sentences for

the older as recently referenced, the arrangement for abrogating jail sentences for the old turns

out to be extremely particular.

In the mean time, wrongdoings that are deserving of an extraordinary least sentence are

by and large remembered for unique violations, specifically the Wrongdoing of Dealing with

People, Serious Wrongdoings against Common freedoms, Psychological warfare Violations,

Debasement and Opiates Wrongdoing. In the mean time, certain lawbreaker acts that are

extremely hurtful or unfavorable to society, or monetarily adverse or impeding to the country's

economy are remembered for the measures for unique violations also. This specific

wrongdoing likewise conveys a jail sentence of 5 years or more.

In the event that we focus on the instances of criminal demonstrations deserving of

detainment under 5 (five) years which have been referenced already, a significant number of

them are criminal demonstrations that outcome in casualties, like infidelity, foulness, criticism,

and deceitful demonstrations. For this situation, it is one of the snags for the old not to be

condemned to jail and supplant it with a fine, in the event that there are casualties.

With regards to policing these weak gatherings, governmental policy regarding minorities

in society/strategy is required. Weak gatherings should be dealt with diversely for positive

reasons. In specific circumstances, and conditions, this governmental policy regarding

minorities in society permits the state to be more "oppressive" towards specific gatherings. It is

the obligation and commitment of the state to give ensures and legitimate assurance that is

simply.

On the off chance that the common liberties viewpoint is set as the philosophical premise

and worldview of regulation in managing (minor) legitimate cases that be fall weak gatherings,

then the worldview of state regulation should be created not exclusively to regulation by rules,

legalistic-positivistic, however the law should likewise incorporate all the capability of oneself.

Getting from Satjipto Raharjo's (2009) contemplations on moderate regulation, Moderate

Regulation: Activity, not Text, expresses that dynamic regulation is an idea of a non-direct

approach to deciding, because of the activity elements and human endeavors engaged with it;

This human contribution causes the approach to judging isn't generally connected with

illuminating the text, yet is brimming with inventiveness and decisions.

In view of this, changes to the Criminal Method Code should take on the treatment of cases

including the older. Supportive equity in taking care of ABH cases can be a reference for

administrators and policing in managing old wrongdoers. Assurance for older guilty parties

should be done from the examination stage. The examination stage is the underlying phase of

the law enforcement process so in the event that helpful equity has been accomplished at this

stage it can decrease cases dealt with by ensuing cops.

With such an update, it unquestionably requires preparation in the law enforcement

framework for the treatment of cases including the old. This implies that all factors that

influence policing required, beginning from the law (legal guidelines), regulation implementers,

culture, and society.

The Concept of Restorative Justice in Drug Cases

As a law enforcer, the Police carry out their duties by conducting investigations and

investigations of criminal cases, including drug cases. The variety of actions that must be taken

by the police in dealing with criminal acts makes it the duty of the police to resolve each case

they handle so that they have legal certainty. Be it the certainty that was determined after going

through the court, as well as settlements that stopped in the realm of Polri investigations which

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could not proceed to the next stage, or stopped at the investigation stage for various reasons

regulated in the law. Common reasons for terminating an investigation at the Police include

cases being investigated for insufficient evidence, the case is not a crime, and stopping for the

sake of law because nebis in idem (a person cannot be prosecuted for the second time based on

the same act, and for his actions decided by the competent Court and has obtained permanent

legal force), the suspect dies, and expires.

In responding to the development of an increasingly democratic society, legal settlements

also adjust to the wishes and needs of the community for the need for law. The law was created

as a protector and a tool to deter violators from the sanctions imposed, it is felt that it is

necessary to restore it which includes the legal objectives to be achieved. The settlement of

reestablished regulation takes into account the settlement of criminal cases outside the court

(non-corrective) by focusing on supportive equity techniques.

The authority of the Police in determining which cases can be resolved using this concept

is indeed a question that is quite risky to answer. Because in terms of cases that can and cannot,

everything is handed over to the Police. This condition is full of fraud and abuse of authority

that can be carried out based on the position held. For this reason, to avoid stigma and labeling

like this, the police must always include every element that supports the settlement of cases by

prioritizing this non-penal concept.

In obliging the High Court Roundabout Letter Number 04 of 2010 concerning the

Arrangement of Misuse, Survivors of Misuse, and Opiates Junkies into the Clinical Restoration

and Social Recovery Foundation dated April 7, 2010, the Police have additionally given inside

guidelines as far as focusing on the execution of recovery for drug victimizers. Through Circular

of the Head of the Criminal Investigation Agency Number: SE/01/II/2018/Bareskrim

concerning Rehabilitation Instructions for Narcotics Addicts and Victims of Narcotics Abuse

February 15, 2018.

Based on this Circular Letter, Bareskrim Polri wants to equalize the perception of all drug

investigators in the region to be able to implement options for implementing rehabilitation for

abusers proven by the Police. These provisions form the basis for investigators to be able to

apply exceptions to the pursuit of corporal punishment for perpetrators of abuse by prioritizing

the principle of expediency for these perpetrators to be able to improve themselves and escape

drug addiction.

In terms of passing a decision on an elderly drug abuser, there are several things the judge

considers. Regarding the Judge's consideration, the judge should prioritize the value of justice

and the value of benefits compared to the value of legal certainty. However, in reality, so far,

judges have prioritized the value of legal certainty compared to the value of justice and

expediency, even though for sanctions against the elderly, what must be considered is whether

the decision handed down creates goodness or benefits for the elderly. this is considering that

children are treated specifically, full of affection from the people around them.

Gustav Radbruch stated about legal benefits, "something that can cause good or benefits”.

(Usman & Najemi, 2018) Concerning the settlement of cases of narcotics abuse committed by

children and the elderly, it can be seen from the advantages and disadvantages, or the

advantages and disadvantages of solving these cases. The benefits of resolving the case can be

viewed from various aspects, of course with the consideration that it is indeed best for the

elderly, meaning that the imposition of imprisonment on the elderly is viewed from the point of

view of the benefits or goodness, the elderly as abusers when viewed in terms of benefits, do

not get any benefit from the application of sanctions in the form of the prison sentence.

The application of sanctions in the form of imprisonment to the elderly will cause losses.

Therefore, the judge should apply the decision to the elderly in the form of rehabilitation.

Imposing prison sentences on the elderly means ignoring the interests of the elderly to be able

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to enjoy their old age, which can interfere with their personality, and get a stigma as

perpetrators of crimes. Therefore, imposing prison sentences and placing elderly narcotics

abusers in Correctional Institutions is considered to provide less protection for the elderly,

according to Amir Syarifudin "elderly who consume narcotics should not be subject to

sanctions in the form of imprisonment, because this does not hurt psychology and personal

health. Therefore, the best solution is to provide rehabilitation for them so that they become

aware and can change.29 This means that the imposition of imprisonment for children who

abuse narcotics does not provide enough protection for the elderly (Najemi, Nawawi, &

Purwastuti, 2020) .

4. Conclusion

The form of legal protection for children in conflict with the law has been regulated in Law

no. 11 of 2012 concerning the Juvenile Criminal Justice System, by implementing diversion

through a restorative justice approach. For elderly offenders, there are conditions given to

judges to abolish prison sentences, which apply to crimes punishable by imprisonment under 5

(five) years and do not apply to crimes punishable by a special minimum sentence, or certain

crimes that are very dangerous or detrimental to the community, or financially detrimental or

detrimental to the country's economy. In addition, if the judge thinks that it is not necessary to

impose a prison sentence after considering the objectives of sentencing and sentencing

guidelines, the offender may be subject to a fine.

Based on these provisions, elderly offenders may be subject to fines as an alternative to

imprisonment. However, the conditions for imposing fines for perpetrators with a threat of

under 5 (five) years, as a substitute for abolishing imprisonment, are without victims; Victims

don't mind; or not a repetition of a Criminal Act. Thus, restorative justice for elderly

perpetrators who are caught in drug abuse cases with prison sentences can be abolished by

promising not to repeat these mistakes.

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kesejahteraan lanjut usia. Departemen Sosial RI.

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