penal mediation restorative justice eva a zulfa
Faculty of Law
Universitas Indonesia
2011
Penal Mediation
Civil
Crimina
l
The principle of criminal law develops where
attempted to be implemented the penal
mediation concept or ADR in handling the
criminal case
The Principle of Common
Law
The criminal case can
not be resolved
outside the courts
Afdoening Buiten Process
Article 82 paragraph (1)
The authority demanded a criminal offense
punishable by a fine only to be removed, if
voluntarily paid the maximum fines and costs
have been incurred if the prosecution has
begun, on the authority of the officer
appointed to it by the general rules, and
within the time specified by him.
The 9th /1995 Congress of United Nations
(The Prevention of Crime. And The Treatment
of Offenders)
"privatizing some law
enforcement and
justice functions"
Aims
shortening the justice process for the cases
especially embezzlement and white-collar crime
that tends to be difficult proved and
Reducing the residive rates or repetition of
criminal acts
Returning of state losses (especially for
corporation)
Other Aims
Reduce the piling up of case in the court;
Encourage the judges to impose conditional
criminal, mediation, restitution or compensation
especially for the perpetrators which is young
ages.
"International Penal Reform
Conference"
London, 13-17 April 1999
"to enrich the formal judicial
system with informal, locally
based, dispute resolution
mechanisms which meet
human rights standards".
"The Committee of
the Council of Europe” 1999
Mechanism of mediation
and
Restorative justice
as mechanism to provide a place to
the victims in criminal case resolution
EU Council Framework Decision
2001
Penal mediation
the search prior tool during criminal
proceedings, for negotiated solution between
the victim and the author of the offence,
mediated by a competent person.
Restorative justice
Restorative justice is a new framework for
responding to wrongdoing and conflict that is
rapidly gaining acceptance and support by
educational, legal, social work, and counseling
professionals and community groups.
Restorative justice is a valued-based
approach to responding to wrongdoing and
conflict, with a balanced focus on the person
harmed, the person causing the harm, and the
affected community.
Definition:
Restorative justice is a new framework for
responding to wrongdoing and conflict that is
rapidly gaining acceptance and support by
educational, legal, social work, and counseling
professionals and community groups.
Restorative justice is a valued-based approach
to responding to wrongdoing and conflict, with
a balanced focus on the person harmed, the
person causing the harm, and the affected
community. (Dignan)
Requirement
Direct participant of Stakeholder:
Perpetrators
Victims
Society
(restorative justice provides a very different framework
for understanding and responding to crime. Crime is
understood as harm to individuals and communities,
rather than simply a violation of abstract laws against the
state. Those most directly affected by crime -- victims,
community members and offenders -- are therefore
encouraged to play an active role in the justice process.
Rather than the current focus on offender punishment,
restoration of the emotional and material losses resulting
from crime is far more important.. (Mark Umbreit)
Requirement
Criminal Justice System at this time have not
provided a place of such patterns;
The principles friction:
Substantive Criminal Law:
1.Ius Punale dan Ius Puniendi
2.Asas Nulla poena sine lege
Formal Criminal Law: The existing procedures
must be changed
Advantages
Provide a direct benefit which are felt by both
victims, the perpetrators and the public society,
The resolution of criminal case mechanism with
the restorative justice approaches provides wider
society roles,
Process of handling case with the restorative
approach can be perfomed quickly and accurately.
Supporting factors
Conference
Access to Justice
Alternative Criminal Case Resolution
Means of reconciliation
As basis of ….
Conference
Victim Offender Mediation (VOM : mediation
between perpetrators and victims)
is a forum that encourages a meeting between
the perpetrators and victims assisted by the
mediator as a coordinator and facilitator in the
meeting
Conference
Conferencing is a forum similar to VOM, but in this
form there is a difference that involve resolution not
only involves the direct perpetrator and victim
(primary victim), but also indirect victims (secondary
victim), such as family or close friend of the victim
and family and close friend of the perpetrator. The
reason for the involvement of such parties are
because they may be affected either directly or
indirectly, for any crime that occurs or they have a
high awareness and interest of the outcome of their
conference and may also participate in pursue the
success of the process and purpose.
Conference
Circles, a model of the application of
restorative justice are the most widely involve
compared with the previous two forms,
namely the forum that not only the victim,
perpetrator, family, or mediators, but also
members of the public who feel concerned
with the case.
Problems
The position of perpetrator and
victim
Out of court settlement unknown in
the SPP in Indonesia
NETHERLANDS
Terms of Gazette in 1921 and in 1925 were
against the criminal case committed by
children.
In Staatblad 1921, this provision did not
apply to children under age, while in the
Gazette in 1925 for children who have not
attained the age of 18 years, the terms of the
highest amount of fines amounting to 90
dollars.
Wet vermogenssancties of Netherlands (Law on
sanctions against property) on May 1st, 1983.
This provision did not apply only to violation
but also for crimes which the criminal threat is
imprisonment of 6 years.
Since this the Right of Accused, then the
prosecutor must offer the settlement through
the mechanism before filed a lawsuit to court.
In this case if the offer is not implemented by
the prosecutor, the suspected can submit it to
the prosecutor.
Jan Remelink
The settlement of minor criminal matters
The suspect escaped from a painful
experience
For the prosecution it would constitute a
very significant time savings so that the
judicial’s power can give attention to the
most important matters.
Important ….
The suspect should be freely and
independently may consider the
merits of the choice by using this
institution or not and should not
be done to pressure them.
Austria
Pasal 90 Prosedure Code
The Public Prosecutor can divert a
penal case from the courts if the
suspect is willing to acknowledge
the deed and prepared to deal
with its causes
Requirement:
if the suspect is prepared to undertake restitution for
the possible consequences of the deed in a suitable
manner, in particular by providing compensation for
damage caused or otherwise contributing to
reparation for the consequences of the deed, and
if the suspect consents to undertake any necessary
obligations which indicate a willingness to refrain in
future from the type of behaviour which had led to
the deed.
Requirement
1. The accused want to confess his/her
actions;
2. The accused is ready to redress the
compensation especially compensation for
losses incurred or
3. The accused is ready to contribute more to
fix the consequences of his deeds and
4. The accused agreed to perform any
obligation required to demonstrate its
willingness to not repeat the criminal act.
REQUIREMENT
Imprisonment is not more than
5 years to adult and 10 years
for children. It is not possible
to be applied, if any victim
died as in the manslaughter
case.
Reality in the Society
O (15 years old) one day in August, 2005 in
Tangerang west java came to NSR and ask for the
permission to borrow the federal bike brands
which was parked in front of his yard. Without
suspecting the bad faith, NSR gave the
permission. However, until the nightfall the bike it
never returned. It turned out the bike was taken
away by O who was a month never came home.
This case was resolved by restoring the bike that
was stolen by the perpetrators’s parents to the
victim.
Reality in the Society
Case that occurred in the area of Kebon Jeruk
West Jakarta in mid-September 2006, a girl
ran to the her boyfriend’s boarding house
because she was in conflict with her mother.
Unfortunately, she then raped by her
boyfriend. On the basis of agreement of their
parents (after a young man's parents and the
girl’s parents met and consulted) both then
mated.
Reality in the Society
On March 19th, 2007, traffic accident happened in the
area of Central Jakarta by a public transport driver who
killed 2 (two) victims. A week later this case was
resolved by peaceful means where the perpetrator
sympathize to the victim’s family with a sum of money
as a trading capital for the victim’s wife. The police’s
reason of doing this solely because see that the
criminal act was the negligence threat of criminal
under 5 (five) years and the economic condition either
by the perpetrator or the victim that were not
profitable. On the consideration that the resolution
through the process of criminal justice would be more
devastating to both parties and with the consideration
that the victim’s family also has forgiven the
perpetrator, then the peace effort are pursued.
The Decision of Palangkaraya District Court No.
278/Pid.B/2003/PN.P1.R on December 16th, 2003
…... Because of the family of the victim and the
accused family has been hold the customary
peace, the peace where the accused has
complied with all demands according to Dayak
Customary Law, so that the values of living in
the society, should be observed and
respected, because besides the juridical
aspects and philosophical aspects of the Panel
of Judges also consider the sociological
aspects...
The Decision of North Jakarta District Court on June
17th, 1978 No.46/Pid/UT/781/WAN
stated the Act of the accused above, Mrs. Elly
Dado proven legally and convincingly both the
primary charges. Subsidiary and the
subsidiary again but the actions with the
peaceful settlement among the parties, did
not constitute a crime can be punished again.
Law
Article 97 of Criminal Procedure Code:
Material Compensation
Law No. 23 of 1997: Primum remidium
Law No. 22 of 1997 : The participation of
society in the rehabilitation of drugs addict.
Law No. 3 of 1997 : Prior to pronounce its
verdict, the judge provides the opportunity for
parents, guardians, or foster parents to bring
everything to matters that are beneficial to
children.
Breakthrough
Article 54 and 100 of RKUHP
Expansion the provisions of Article 82 of Penal
Code
Harmonization of Formal Criminal Law and
Criminal Law Material:
Universitas Indonesia
2011
Penal Mediation
Civil
Crimina
l
The principle of criminal law develops where
attempted to be implemented the penal
mediation concept or ADR in handling the
criminal case
The Principle of Common
Law
The criminal case can
not be resolved
outside the courts
Afdoening Buiten Process
Article 82 paragraph (1)
The authority demanded a criminal offense
punishable by a fine only to be removed, if
voluntarily paid the maximum fines and costs
have been incurred if the prosecution has
begun, on the authority of the officer
appointed to it by the general rules, and
within the time specified by him.
The 9th /1995 Congress of United Nations
(The Prevention of Crime. And The Treatment
of Offenders)
"privatizing some law
enforcement and
justice functions"
Aims
shortening the justice process for the cases
especially embezzlement and white-collar crime
that tends to be difficult proved and
Reducing the residive rates or repetition of
criminal acts
Returning of state losses (especially for
corporation)
Other Aims
Reduce the piling up of case in the court;
Encourage the judges to impose conditional
criminal, mediation, restitution or compensation
especially for the perpetrators which is young
ages.
"International Penal Reform
Conference"
London, 13-17 April 1999
"to enrich the formal judicial
system with informal, locally
based, dispute resolution
mechanisms which meet
human rights standards".
"The Committee of
the Council of Europe” 1999
Mechanism of mediation
and
Restorative justice
as mechanism to provide a place to
the victims in criminal case resolution
EU Council Framework Decision
2001
Penal mediation
the search prior tool during criminal
proceedings, for negotiated solution between
the victim and the author of the offence,
mediated by a competent person.
Restorative justice
Restorative justice is a new framework for
responding to wrongdoing and conflict that is
rapidly gaining acceptance and support by
educational, legal, social work, and counseling
professionals and community groups.
Restorative justice is a valued-based
approach to responding to wrongdoing and
conflict, with a balanced focus on the person
harmed, the person causing the harm, and the
affected community.
Definition:
Restorative justice is a new framework for
responding to wrongdoing and conflict that is
rapidly gaining acceptance and support by
educational, legal, social work, and counseling
professionals and community groups.
Restorative justice is a valued-based approach
to responding to wrongdoing and conflict, with
a balanced focus on the person harmed, the
person causing the harm, and the affected
community. (Dignan)
Requirement
Direct participant of Stakeholder:
Perpetrators
Victims
Society
(restorative justice provides a very different framework
for understanding and responding to crime. Crime is
understood as harm to individuals and communities,
rather than simply a violation of abstract laws against the
state. Those most directly affected by crime -- victims,
community members and offenders -- are therefore
encouraged to play an active role in the justice process.
Rather than the current focus on offender punishment,
restoration of the emotional and material losses resulting
from crime is far more important.. (Mark Umbreit)
Requirement
Criminal Justice System at this time have not
provided a place of such patterns;
The principles friction:
Substantive Criminal Law:
1.Ius Punale dan Ius Puniendi
2.Asas Nulla poena sine lege
Formal Criminal Law: The existing procedures
must be changed
Advantages
Provide a direct benefit which are felt by both
victims, the perpetrators and the public society,
The resolution of criminal case mechanism with
the restorative justice approaches provides wider
society roles,
Process of handling case with the restorative
approach can be perfomed quickly and accurately.
Supporting factors
Conference
Access to Justice
Alternative Criminal Case Resolution
Means of reconciliation
As basis of ….
Conference
Victim Offender Mediation (VOM : mediation
between perpetrators and victims)
is a forum that encourages a meeting between
the perpetrators and victims assisted by the
mediator as a coordinator and facilitator in the
meeting
Conference
Conferencing is a forum similar to VOM, but in this
form there is a difference that involve resolution not
only involves the direct perpetrator and victim
(primary victim), but also indirect victims (secondary
victim), such as family or close friend of the victim
and family and close friend of the perpetrator. The
reason for the involvement of such parties are
because they may be affected either directly or
indirectly, for any crime that occurs or they have a
high awareness and interest of the outcome of their
conference and may also participate in pursue the
success of the process and purpose.
Conference
Circles, a model of the application of
restorative justice are the most widely involve
compared with the previous two forms,
namely the forum that not only the victim,
perpetrator, family, or mediators, but also
members of the public who feel concerned
with the case.
Problems
The position of perpetrator and
victim
Out of court settlement unknown in
the SPP in Indonesia
NETHERLANDS
Terms of Gazette in 1921 and in 1925 were
against the criminal case committed by
children.
In Staatblad 1921, this provision did not
apply to children under age, while in the
Gazette in 1925 for children who have not
attained the age of 18 years, the terms of the
highest amount of fines amounting to 90
dollars.
Wet vermogenssancties of Netherlands (Law on
sanctions against property) on May 1st, 1983.
This provision did not apply only to violation
but also for crimes which the criminal threat is
imprisonment of 6 years.
Since this the Right of Accused, then the
prosecutor must offer the settlement through
the mechanism before filed a lawsuit to court.
In this case if the offer is not implemented by
the prosecutor, the suspected can submit it to
the prosecutor.
Jan Remelink
The settlement of minor criminal matters
The suspect escaped from a painful
experience
For the prosecution it would constitute a
very significant time savings so that the
judicial’s power can give attention to the
most important matters.
Important ….
The suspect should be freely and
independently may consider the
merits of the choice by using this
institution or not and should not
be done to pressure them.
Austria
Pasal 90 Prosedure Code
The Public Prosecutor can divert a
penal case from the courts if the
suspect is willing to acknowledge
the deed and prepared to deal
with its causes
Requirement:
if the suspect is prepared to undertake restitution for
the possible consequences of the deed in a suitable
manner, in particular by providing compensation for
damage caused or otherwise contributing to
reparation for the consequences of the deed, and
if the suspect consents to undertake any necessary
obligations which indicate a willingness to refrain in
future from the type of behaviour which had led to
the deed.
Requirement
1. The accused want to confess his/her
actions;
2. The accused is ready to redress the
compensation especially compensation for
losses incurred or
3. The accused is ready to contribute more to
fix the consequences of his deeds and
4. The accused agreed to perform any
obligation required to demonstrate its
willingness to not repeat the criminal act.
REQUIREMENT
Imprisonment is not more than
5 years to adult and 10 years
for children. It is not possible
to be applied, if any victim
died as in the manslaughter
case.
Reality in the Society
O (15 years old) one day in August, 2005 in
Tangerang west java came to NSR and ask for the
permission to borrow the federal bike brands
which was parked in front of his yard. Without
suspecting the bad faith, NSR gave the
permission. However, until the nightfall the bike it
never returned. It turned out the bike was taken
away by O who was a month never came home.
This case was resolved by restoring the bike that
was stolen by the perpetrators’s parents to the
victim.
Reality in the Society
Case that occurred in the area of Kebon Jeruk
West Jakarta in mid-September 2006, a girl
ran to the her boyfriend’s boarding house
because she was in conflict with her mother.
Unfortunately, she then raped by her
boyfriend. On the basis of agreement of their
parents (after a young man's parents and the
girl’s parents met and consulted) both then
mated.
Reality in the Society
On March 19th, 2007, traffic accident happened in the
area of Central Jakarta by a public transport driver who
killed 2 (two) victims. A week later this case was
resolved by peaceful means where the perpetrator
sympathize to the victim’s family with a sum of money
as a trading capital for the victim’s wife. The police’s
reason of doing this solely because see that the
criminal act was the negligence threat of criminal
under 5 (five) years and the economic condition either
by the perpetrator or the victim that were not
profitable. On the consideration that the resolution
through the process of criminal justice would be more
devastating to both parties and with the consideration
that the victim’s family also has forgiven the
perpetrator, then the peace effort are pursued.
The Decision of Palangkaraya District Court No.
278/Pid.B/2003/PN.P1.R on December 16th, 2003
…... Because of the family of the victim and the
accused family has been hold the customary
peace, the peace where the accused has
complied with all demands according to Dayak
Customary Law, so that the values of living in
the society, should be observed and
respected, because besides the juridical
aspects and philosophical aspects of the Panel
of Judges also consider the sociological
aspects...
The Decision of North Jakarta District Court on June
17th, 1978 No.46/Pid/UT/781/WAN
stated the Act of the accused above, Mrs. Elly
Dado proven legally and convincingly both the
primary charges. Subsidiary and the
subsidiary again but the actions with the
peaceful settlement among the parties, did
not constitute a crime can be punished again.
Law
Article 97 of Criminal Procedure Code:
Material Compensation
Law No. 23 of 1997: Primum remidium
Law No. 22 of 1997 : The participation of
society in the rehabilitation of drugs addict.
Law No. 3 of 1997 : Prior to pronounce its
verdict, the judge provides the opportunity for
parents, guardians, or foster parents to bring
everything to matters that are beneficial to
children.
Breakthrough
Article 54 and 100 of RKUHP
Expansion the provisions of Article 82 of Penal
Code
Harmonization of Formal Criminal Law and
Criminal Law Material: