Faculty of LawUniversitas Indonesia

2011

Penal Mediation

The principle of criminal law develops where attempted to be implemented the penal

mediation concept or ADR in handling the criminal case

Civil Criminal

The Principle of Common Law The criminal case can

not be resolved outside the courts

Afdoening Buiten ProcessArticle 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 AimsReduce 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 mediationand

Restorative justice

as mechanism to provide a place to the victims in criminal case resolution

EU Council Framework Decision2001

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 justiceRestorative 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 Puniendi2.Asas Nulla poena sine legeFormal 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 factorsConferenceAccess to JusticeAlternative 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

ConferenceConferencing 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 RemelinkThe settlement of minor criminal matters The suspect escaped from a painful

experienceFor 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.

AustriaPasal 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 SocietyO (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 SocietyCase 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 CompensationLaw No. 23 of 1997: Primum remidiumLaw 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.

BreakthroughArticle 54 and 100 of RKUHPExpansion the provisions of Article 82 of Penal

CodeHarmonization of Formal Criminal Law and

Criminal Law Material: