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 448
Implementation Of Restorative Justice As A Justice Law
Enforcement In Indonesia
Agus Supriyanto
1
, Faisal Santiago
2
, Megawati Barthos
3
1,2,3
Universitas Borobudur
Email: [email protected]
1
2
,
3
Corresponding Author: [email protected]
ARTICLE INFO
ABSTRACT
Submitted
:22-04-2023
Received
:25-04-2023
Approved
:05-05-2023
The law enforcement framework will in general save essential
standards as far as satisfying equity, exclusively because of reasons
of satisfying legitimate sureness. Victims in a crime, in the National
Legal System, the position is not profitable. Because the victim, in
the (Criminal) Judicial System, is only an accessory, not the main
actor or just a witness. The type of research used by the author in
compiling this research is normative legal research or library law
research. It should be emphasized that restorative justice is
fundamentally a concept, both about justice and due process, not a
theory. Because it is the basis for the development of the judiciary,
restorative justice is referred to as the philosophy of justice. So, it is
possible to view restorative justice as a collection of legal
procedures that primarily seek to repair (recover) the losses
suffered by crime victims. In the science of criminal law, justice must
try to restore the situation to how it was before the crime was
committed. The situation changes when someone breaks the law. So
that's where the role of law is to protect the rights of every victim of
crime. Helpful equity additionally accentuates common liberties and
the need to perceive the impacts of social unfairness and in basic
ways review them, as opposed to just giving the culprits formal or
lawful equity and casualties not getting any equity. Supportive
equity likewise looks to reestablish casualties' security, individual
regard, respect, and all the more significantly, a feeling of control.
The helpful equity framework can be applied in the event that the
lawful culture in a nation requires its execution for a specific case.
Keywords: Restorative
Justice; Crime; Law.
Attribution-ShareAlike 4.0 International (CC BY-SA 4.0)
1. Introduction
By applying the arrangements of the criminal procedural regulation genuinely and
suitably, the goal of the criminal procedural regulation is to look for and get or possibly
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approach the material truth, specifically the total reality of a lawbreaker case. Once the
perpetrator has been charged with a crime, they can then ask the court to investigate and
make a decision to determine whether the crime has been proven and whether the offender
was.
In essence, the criminal procedural law regulates the following matters:(Dewi, 2014)
a. Examining the truth of criminal law prohibitions that are claimed to use a state that
was established specifically for this purpose.
b. Attempts are made to investigate the perpetrators of this act.
c. Every effort was made so that the perpetrators of the previous act could be arrested
if necessary and detained.
d. The evidence that has been obtained and collected as a result of the investigation
into the truth of the suspicion was submitted to the judge, as well as efforts to make
the suspect appear before the judge.
e. It is up to the judge to decide whether the act allegedly committed by the suspect is
proven and what action or punishment will then be taken or imposed.
f. Determine the legal remedies that can be used against the judge's decision.
g. The decision that is ultimately taken is in the form of a crime or action or is carried
out.
The search for truth is intended to be the goal of the criminal procedure code. In
investigating, investigating, and prosecuting crimes, law enforcers—from the police to
prosecutors to judges—must always be guided by the truth, namely events that happened.
So, from the description above it can be concluded that the three main objectives of
criminal procedural law are:
a. Search and find the truth
b. Giving a decision by a judge
c. Decision execution
In this situation, we need a system that runs through a network called the Criminal
Justice System. The main components of this system of crime control include the police,
prosecutors, and courts, all of which must work together to operate the system. Otherwise,
the following prompt will appear:[2]
a. In connection with their shared duties there is difficulty in assessing the successes
and failures of each agency.
b. Each institution has difficulties in solving its main problems.
c. Due to the lack of clarity on the division of agency responsibilities, every
organization doesn't give a lot of consideration to the viability of the law
enforcement framework.
Criminal justice includes at least three components of legal substance used in the
judicial process. First, laws and regulations determine what constitutes a material criminal
law violation and the penalties to be examined and defended. The proceedings are governed
by two criminal procedural laws. Finally, the application of criminal law by the legal process
or procedural law as a conclusion of the criminal justice process, the perpetrator must be a
sanction that has been decided by a criminal court in a community institution if proven. has
committed a violation and here are the consequences. Therefore, there is a discussion of the
functions of criminal law and criminal procedural law to find out the function of law
regarding the criminal justice system.
In this situation, law enforcement should focus on upholding pleasure while reducing
pain. The law must also aim to promote human pleasure, by giving the widest possible
freedom to humans to follow their interests. Keeping everyone safe is the best method to
achieve this. Only when a person has enough freedom and security can they be as happy as
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possible. The utility of an activity determines whether it is true or false; on the other hand, if
it results in the creation or cause of something terrible, worthless, or destructive, the act is
said to be wrong.
In general, utilitarianism is an ideology that emphasizes expediency as the main goal
of law. This advantage is known as happiness (happiness). So, whether a law is good, harmful,
or unfair depends on whether it makes people happy or not. Thus, the purpose of the law is
to guide the individual to the happiness of the greater part of society.(Erwin, 2016) While
prison is not the ideal way to deal with crime, prison is the end of all abuses dealt with by the
Indonesian criminal justice system.[4]
The Preamble to the RKUHP which states that the contents of the national criminal
law must be adapted to legal politics, conditions, and the development of the nation and state
of Indonesia, then explicitly states the requirements for changing the law to be fair and by
reality and rooted in societal values. Although it is said that the purpose of developing
criminal law is to respect and protect human rights as well as trying to change the national
law based on Pancasila and the 1945 Constitution of the Republic of Indonesia (Hasanah &
Uang, 2011).
The best approach to solving problems is through restorative justice, which
emphasizes addressing the root cause of the problem. Recovering losses and losses incurred
by the occurrence of a crime is an important option to remember. The application of a good
and correct social order in a country must be developed by the concept of the cultural roots
of society. The notion of restorative justice is not a perfect and stable concept for improving
the social order of society as a result of a crime event. In applying this concept, many factors
must be adapted to the culture of the community because the implementer is the community
itself.(Prakoso, 2019)
The direct participation of the parties is preferred in restorative justice. While the
culprit is encouraged to venture out in rectifying the wrongs made by the wrongdoing and in
fostering his social worth framework, the casualty can recover control. Dynamic cooperation
locally fortifies the local area and ties it to shared upsides of regard and sympathy. Today, the
public authority's syndication over the general set of laws is significantly diminished. To lay
out a circumstance where casualties and culprits can determine their disparities and mend
their injuries, helpful equity requires participation among society and government.
Parties to a conflict sometimes feel that going to court to resolve their issues has less
impact. Compared to the lawsuit process, mediation offers several advantages, including;
(Astarini & SH, 2021)
a. In mediation, there are two main guiding concepts. First, try to win collectively, not
win or lose (win-win solution). Also, it includes the triumph of moral reputation,
especially reputation, and trust, and does not refer only to economic or financial
success. Second, the decision prioritizes equality, decency, and a sense of justice
over legal factors and justification.
b. It is also stated that mediation settlement speeds up dispute resolution compared to
litigation. Prolonged legal proceedings have cost other than money. Psychologists'
responsibilities are equally important and have a significant impact on the various
attitudes and behaviors of plaintiffs;
c. The breaking of social ties or brotherhood is one of the social impacts of litigation
for Indonesian society. The wider familial relationship is also affected by this effect
in addition to the relationship between the parties. Most cases that arise concern the
family and the rights and dignity of the plaintiff. This can be prevented by mediation.
Relationships that have been broken can be repaired;
d. The social foundation of Indonesian society which emphasizes kinship, affiliation,
kinship, and cooperation is ideal for mediation. These foundations have shaped
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behavior, made people more tolerant and forgiving, and they have promoted the
idea of putting the common good first.
e. An international phenomenon, mediation. The use of mediation as an alternative to
conflict resolution has increased on a global scale as a result of the complexity of
litigation (cost, time, increasingly complex laws, reputation, etc.). The ideal case
resolution method is mediation.
f. Viewed from the point of administration of justice, there are several advantages of
mediation:
1) As more cases are resolved through mediation, there will be less pressure on
the number of cases that go to court. This will have an impact on the
possibility of solving problems that are pending or past due. The judge could
examine in depth each case, which is expected to increase the standard of
assessment for the benefit of the litigants and legal progress.
2) According to the judge's reputation, mediation settlements are carried out by
non-judge parties, so mediation is the single most important tool.
3) Gradually litigation in court can be discussed within the legal framework of
the main issues rather than complex and broad definition of cases which
would be detrimental to the development of law and the possibility of legal
doctrine.
2. Materials and Methods
The exploration strategy is a way that is done as a progression of logical exercises that
are done systemically, deliberately, and every time to get total lawful material that can be
deductively represented so the examination targets can be accomplished. Legitimate
exploration is an interaction to track down lawful standards, lawful standards, and lawful
tenets to answer the lawful main things. (Marzuki, 2017a) The exploration technique
involved by the creator in this study is as per the following:
The methodology that the creator involves in this exploration is the rule approach and
the case approach. The legal methodology is completed by analyzing all regulations and
guidelines that are connected with the legitimate issues being taken care of. In the statutory
approach, it is necessary to understand the hierarchy and principles of statutory
regulations.(Marzuki, 2017a)
3. Results and Discussions
3.1. Implementation of Restorative Justice in Indonesian Law.
In the utilization of supportive equity, it was observed that the way that it was
implemented was exclusively in specific cases, for instance in instances of kids and
criminal traffic offenses. It is seen that these cases can be taken in a moderate course
and track down a place of understanding or harmony between the culprit and the
person in question. Accordingly, that's what I decipher on the off chance that the case
can in any case be held thought then it ought to be finished to consider the things that
are productive above. Rebuilding equity can be done in situations where there is a
"center way" conceivable.
On the KPAI website [9] it says “Only adults who have committed a crime must be
locked up. Children should not be sent to prison as doing so will ruin their future
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opportunities. He is a developing independent individual; needs help and direction. A
sort of helpful equity called proper equity for reprobates means to improve and revamp
the connection between the culprit and the casualty to keep up with concordance
throughout everyday life. The heaviest discipline that can be forced on them is
obligatory training. Assuming adolescent equity forms into a different equity
framework that isn't a part of the whole law enforcement framework, then, at that point,
this worldview will really be accomplished.
While looking at the freedoms and obligations of a youngster, which will likewise
influence his remaining under the watchful eye of the law, we must first recognize that
children, in all meanings and definitions, differ from adults in several ways. It was also
said that children are a mandate and a gift from God Almighty who has dignity human
being in the discussion of Law Number 11 of 2012 concerning the Juvenile Criminal
Justice System. Youngsters are qualified for extraordinary security, particularly
legitimate assurance in the equity framework, to ensure their respect.[10] Retnowulan
Sutianto claims that youngster insurance is important for public turn of events. Dealing
with kids implies safeguarding endlessly individuals ought to be created however much
as could be expected. This is reflected in public turn of events, in particular the
development of a completely upright Indonesian person. Disregarding kid security
issues won't help the nation's turn of events. Absence of kid assurance will bring about
a few social issues that can slow down keeping up with the rule of law, keeping up with
security, and the advancement of the country.(Suprapto & Atmasasmita, 1997)
Bagir Manan, in his works, portrays the substance of "helpful equity" In instances
of criminal demonstrations carried out by kids, the supportive equity framework
basically plans to fix/reestablish (to reestablish) criminal demonstrations carried out
by youngsters with activities that are valuable to kids, casualties, and their current
circumstance which includes them straightforwardly (reintegration and restoration) in
critical thinking and are unique in relation to the approach to taking care of grown-ups,
which will then prompt the reason for the actual wrongdoing which as per Barda
Nawawi Arief the motivation behind discipline depends on "security of society" and
"Insurance/direction of individual culprits of criminal demonstrations.(Arief, 2002)
Article 1 point (6) of Regulation Number 11 of 2012 concerning the Adolescent Law
enforcement Framework, expresses that helpful equity is the settlement of criminal
cases including culprits, casualties, groups of culprits/casualties, and other related
gatherings to look for an answer mutually. equity by stressing rebuilding to the first
state, and not reprisal. The Adolescent Law enforcement Framework should focus on
the Helpful Equity approach. The Adolescent Law enforcement Framework
incorporates:
a. criminal examination and arraignment of kids did by the
arrangements of regulations and guidelines except if generally
specified in this regulation;
b. trials of kids directed by courts inside the general court climate
c. Guidance, direction, oversight, or potentially help during the most
common way of executing a wrongdoing or activity and in the wake
of serving a wrongdoing or activity.
In the Adolescent Law enforcement Framework, as alluded to in section (2) letters
an and b, endeavors should be made to redirection. Redirection is the exchange of
settlement of kid cases from the law enforcement cycle to processes beyond law
enforcement.
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In the practice of "restorative justice," Although not documented in official
documents, the police often use techniques that are considered outside the law to
resolve actual criminal cases. Experts have acknowledged the potential "irregularity".
As per Romli Atmasasmita "in a vote based country apparently the police contraption is
constantly confronted with two irreconcilable situations, specifically the interest of
keeping everything under control from one viewpoint and the interest of keeping up
with the guideline of lawfulness then again.(Abidin, 2005)
It should be emphasized that restorative justice is fundamentally a concept, both
about justice and due process, not a theory. Because it is the basis for the development
of the judiciary, restorative justice is referred to as the philosophy of justice. So, it is
possible to view restorative justice as a collection of legal procedures that primarily
seek to repair (recover) the losses suffered by crime victims. In the study of criminal
regulation, equity should attempt to reestablish what is going on to the way things were
before the wrongdoing was perpetrated. The circumstance changes when somebody
oversteps the law. So that is where the job of regulation is to safeguard the privileges of
each and every wrongdoing casualty.(Marzuki, 2017b)
Helpful Equity requires agreeable endeavors from the local area and government to
establish a climate where casualties and culprits can suggest their contention. Helpful
equity returns the contention to the gatherings generally impacted (casualties), culprits,
and their "local area interest" and gives need to their inclinations. Helpful Equity
likewise accentuates common liberties and the need to perceive the impacts of social
shamefulness and in straightforward ways change them, as opposed to just giving the
culprits formal or lawful equity and casualties not getting any equity. Supportive Equity
likewise tries to reestablish casualties' security, individual regard, pride, and all the
more significantly a feeling of control.(Atmasasmita, 1996) The supportive equity
framework can be applied in the event that the lawful culture in a nation requires the
execution of helpful equity for a specific case.
Albeit overall debate goal outside the court just applies to common questions,
criminal cases are much of the time settled external the court at the prudence of various
policing or through exchange/placation systems or pardoning establishments in the
public eye like families, towns, and standard considerations. It is typical for cases that
have already been settled informally but are still being processed in court by applicable
law because the practice of settling criminal cases outside the court has not yet had a
formal legal basis. It is because not all laws that contain criminal law specifically
regulate out-of-court settlements.
The specialist's optional activities recorded in Article 16 passage (2) can be done
with the accompanying circumstances: not in opposition to a law and order; in
accordance with legitimate commitments that require the move to be made; should be
fitting, sensible, and inside the extent of his situation; sensible thought in view of
convincing conditions; and regard common freedoms. The authority possessed by
investigators can provide space for perpetrators of criminal acts and victims to make
peace or penal mediation. If at the penal mediation stage, it has been agreed that there
will be peace then this agreement can be used as an excuse by investigators to stop the
investigation, moreover, this is being carried out by indigenous peoples where the state
recognizes the existence of customary law in Indonesia (Arief, 1998).
In the "Illustrative reminder" of the European Chamber Proposal No. R (99) 19
concerning "Intervention in Corrective Matters", set forward a few models of punitive
intercession as follows:
a. informal mediation
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The model is completed by law enforcement staff in their typical
obligations, which can be done by the Public Examiner by welcoming the
gatherings to do a casual settlement with the point of not proceeding with the
arraignment in the event that an understanding is reached; can be done by a
social laborer or post trial supervisor, by a cop, or by an appointed authority.
b. Traditional village or tribal moots
According to this approach, society comes together to resolve criminal
disputes among its residents. This paradigm, which prioritizes benefits for
society at large, is used in some less developed countries and rural and inland
locations. Most contemporary mediation programs are based on concepts that
predate Western law. The benefits of the tribal debate are often attempted to
be introduced in modern mediation programs in ways that are adapted to
contemporary societal systems and legally recognized individual rights.
c. victim-offender mediation
The model that most often comes to the minds of the public is mediation
between victims and perpetrators. This strategy requires meetings between
several parties and an appointed mediator. This model comes in various forms.
The mediator can be an appointed official, an impartial third party, or a
combination of both. Any stage of the process — policing, prosecution,
sentencing, or even after sentencing — can be used to conduct this mediation.
This model is used for all criminals; there are variants for juvenile offenders
and some for specific forms of crime (eg shoplifting, robbery, and acts of
violence). Some are aimed primarily at juvenile criminals and first-time
offenders, while others are for serious crimes.
d. Repair negotiation programs
This model is exclusively for assessing/surveying the remuneration or fixes
that should be paid by the culprit of a wrongdoing to the person in question,
for the most part at the hour of assessment in court. This program isn't
connected with compromise between the gatherings, however simply
connected with material improvement arranging. In this model, culprits of
criminal demonstrations might be liable to work projects to set aside cash to
pay remuneration.
e. Community panels of courts
The model is a program to redirect criminal cases from indictment or
equity to local area techniques that are more adaptable and casual and
frequently include components of intercession or exchange.
f. Family and community group conferences
This idea which underlines local area contribution in the law enforcement
framework was created in Australia and New Zealand. It involves not only the
victims and perpetrators of the crimes, but also their relatives, other members
of the public, law enforcement officials, judges, and those who support the
victims. It is hoped that the perpetrator and his family will reach a thorough
agreement that will satisfy the victim and prevent the perpetrator from further
difficulties.(Barda Nawawi Arif, n.d.)
4. Conclusion
The law enforcement framework will in general save fundamental standards as far as
satisfying equity, exclusively because of reasons of satisfying legitimate conviction. The
Preamble to the RKUHP which states that the contents of the national criminal law must be
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adapted to legal politics, conditions, and the development of the nation and state of Indonesia,
then explicitly states the requirements for changing the law to be fair and by reality and
rooted in societal values. Despite the fact that it is said that the motivation behind creating
criminal regulation is to regard and safeguard common liberties and to attempt to change
public regulation in view of Pancasila and the 1945 Constitution of the Republic of Indonesia.
The best approach to solving problems is through restorative justice, which
emphasizes addressing the root cause of the problem. Recovering losses and losses incurred
by the occurrence of a crime is an important option to remember. The application of a good
and correct social order in a country must be developed by the concept of the cultural roots
of society. The notion of restorative justice is not a perfect and stable concept for improving
the social order of society as a result of a crime event. In applying this concept, many factors
must be adapted to the culture of the community because the executor is the community
itself.
It should be emphasized that restorative justice is fundamentally a concept, both
about justice and due process, not a theory. Because it is the basis for the development of the
judiciary, restorative justice is referred to as the philosophy of justice. So, it is possible to
view restorative justice as a collection of legal procedures that primarily seek to repair
(recover) the losses suffered by crime victims. In the study of criminal regulation, equity
should attempt to reestablish what is going on to the way things were before the wrongdoing
was carried out. The circumstance changes when somebody oversteps the law. So that is
where the job of regulation is to safeguard the privileges of each and every survivor of
wrongdoing.
Supportive equity requires agreeable endeavors from the local area and government
to establish a climate where casualties and culprits can suggest their contention. Helpful
equity returns the contention to the gatherings generally impacted (casualties), culprits, and
their "local area interest" and gives need to their inclinations. Helpful equity additionally
accentuates basic freedoms and the need to perceive the impacts of social treachery and in
straightforward ways review them, as opposed to just giving the culprits formal or lawful
arbitrator and casualties not getting any honesty. Helpful equity likewise tries to reestablish
casualties' security, individual regard, pride, and all the more significantly, a feeling of
control. The supportive equity framework can be applied in the event that the legitimate
culture in a nation requires the execution of helpful equity for a specific case.
5. References
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Arief, B. N. (1998). Beberapa aspek kebijakan penegakan dan pengembangan hukum pidana. Citra
Aditya Bakti.
Arief, B. N. (2002). Bunga Rampai Kebijakan Hukum Pidana Citra Aditya Bakti. Bandung.
Astarini, D. R. S., & SH, M. H. (2021). Mediasi Pengadilan. Penerbit Alumni.
Atmasasmita, R. (1996). Sistem Peradilan Pidana Indonesia. Jakarta: Putra Bardin.
Barda Nawawi Arif. (n.d.). Beberapa Aspek Kebijakan Penegakan dan Pengembangan Hukum Pidana,
1996, hal. 39.
Dewi, E. (2014). Sistem Peradilan Pidana Indonesia (Dinamika dan Perkembangan). Yogyakarta: Graha
Ilmu.
Erwin, M. (2016). Filsafat Hukum: Refleksi Kritis terhadap Hukum dan Hukum Indoesia (dalam Dimensi
Ide dan Aplikasi) Edisi Revisi. PT RajaGrafindo Persada, Jakarta.
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Hasanah, U., & Uang, A. H. W. (2011). Badan Pembinaan Hukum Nasional Kementrian Hukum dan Hak
Asasi Manusia RI. Jakarta.
Marzuki, M. (2017a). Penelitian Hukum: Edisi Revisi. Prenada Media.
Marzuki, M. (2017b). Penelitian Hukum: Edisi Revisi. Prenada Media.
Prakoso, A. (2019). Hukum penitensier.
Suprapto, P. H., & Atmasasmita, R. (1997). Peradilan Anak Di Indonesia. Mandar Maju.
