Recent online videos have once again exposed troubling instances of abuse and bullying among junior high school students in Indonesia. These distressing incidents serve as a stark reminder of the urgent need to address child criminality with empathy and innovative solutions. In response to such challenges, Indonesia has embraced an approach known as “diversion.” This method, grounded in restorative justice principles, offers a unique perspective on resolving juvenile criminal cases without the need for explicit references to specific schools or regions.
Diversion approach represents a shift away from the conventional criminal justice system, prioritizing the best interests of children and emphasizing restorative justice. To fully comprehend the significance of diversion, let’s delve into its mechanisms and how it plays a crucial role in resolving juvenile criminal cases in Indonesia.
Diversion Mechanisms in Indonesia
The 1945 Constitution’s Article 28B paragraph 2 specifies the necessity for a resolution of juvenile crimes that prioritizes the best interests of children and provides restorative justice due to criminal cases are typically strict and take a long time to resolve.
Diversion is the process of settling child criminal cases outside of the criminal justice system and is made possible by the Law of the Republic of Indonesia, Number 11 of 2012 concerning the Juvenile Criminal Justice System (“SPPA Law”) and Supreme Court Regulation (PERMA), Number 4 of 2014 concerning Guidelines for Implementing Diversion in the Juvenile Criminal Justice System.
The SPPA Law defines diversion as the transfer of the resolution of juvenile criminal matters from the criminal justice system to a system outside of the criminal justice system. The goals of diversion are to:
- bring victims and children together;
- resolve children’s cases outside of the legal system;
- prevent children from being deprived of their liberty;
- promote public participation; and
- instill in children a sense of responsibility.
Using the diversion system, adolescent crimes are resolved in a restorative manner. In order to reach a Diversion Agreement, a restorative approach is required, requiring discussion between all parties involved, including representatives, community counselors (BAPAS), professional social workers (PEKOS), victims and/or their parents/guardians, and others.
Deliberation or dialogue is a crucial component of the diversion strategy used to accomplish restorative justice. A judge appointed by the Chief Justice of the Supreme Court to handle the child’s case in question is required to be a facilitator in conducting diversion deliberations because this deliberation is carried out with the concept of dialogue involving all parties and becomes a crucial factor in resolving criminal cases.
In PERMA No. 4 of 2014, it is stated that diversion applies to children who are suspected of committing a criminal offense and are 12 (twelve) years old but not yet 18 (eighteen) years old or 12 (twelve) years old even though they have been married but are not yet 18 (eighteen) years old (Article 2). This PERMA also governs the stages of diversion deliberations, which call for facilitators to be able to give opportunities for:
- children to be heard regarding the charges;
- parents and guardians to convey information about the child’s actions and the expected form of settlement; and
- victims/child victims/parents and guardians to give responses and forms of expected settlement.
Following consideration of the Community Counselor’s report at the Correctional Centre, if the parties have not fully complied with the terms of the diversion agreement, the judge will proceed to review the case in accordance with the Juvenile Criminal Justice Procedure Law. The judge has to take some of the diversion agreements into account when he or she makes a ruling. The diversion facilitator may call a separate meeting (caucus) or summon community members or other parties to offer information in favor of the settlement if it is judged essential. A caucus is a separate gathering of a party that is known to the opposite party and a distraction facilitator.
A system where the facilitator organizes the settlement process of the disputing parties to reach a suitable resolution as restorative justice can also be used to describe the diversion of juvenile criminal cases. Therefore, from a restorative justice perspective, the core principles of restorative justice are healing, moral learning, community engagement and attention, discourse, a sense of forgiveness, responsibility, and making changes. These principles serve as guidelines for the restoration process.