Developing Diversion Negotiation Model for Reconstructing

Restorative Justice for Children Committing Criminal Acts, based on

Local Culture at the Polrestabes, Medan

Madiasa Ablisar

, M. Hamdan

Criminal Law Department, Universitas Sumatera Utara, Medan, Indonesia

Keywords: Diversion Negotiation, Children Committing Criminal Acts

Abstract: Diversion is the process of diverting the settlement of legal case in children from litigation to non-litigation

to achieve restorative justice. This concept is a local culture which is known as penal mediation which is

basically a complete settlement in any criminal case of non-litigation. Today, negotiation is put aside and

changed to western law and judicial administration which effectiveness in settling criminal cases in children

is still doubtful so it needs to be reconstructed to get justice to restore the disadvantages suffered by the victims

of criminal acts and society. Law No. 12/2011 gives opportunity for children who commit criminal acts to

settle their cases through non-litigation. Substantially, this law is frail in giving an opportunity for multiple

interpretations toward its norms. An investigator plays an important role in the process of diversion. A public

figure also plays his role in the process of diversion in investigating a child who commits a criminal act about

his background, history of his education, his family’s economic condition, and his family’s background. The

process of diversion negotiation at the Polrestabes (City Sub-regional Police), Medan is carried out by

conducting negotiation by giving an opportunity for each party to convey information and responses.

1 INTRODUCTION

Restorative justice stipulated in Article 1, figure 6 of

Law No. 12/2011 is a settlement of criminal act cases

by involving the perpetrators, the victims, their

families, and other parties who are, collectively,

searching for a fair settlement by emphasizing on

restoring to the original condition and not revenge

(Yohanes Bakti, et al., 2016). Diversion is the

diverting of settlement in cases in children from the

concept of litigation to the concept of non-litigation.

If the two concepts are combined, restorative justice

will be achieved, while diversion is one of the

processes of achieving restorative justice (Desiandri,

Yati Sharfina & Madiasa Ablisar, 2017)

Actually, restorative justice is not a new culture

for the Indonesian people. However, since the adat

(customary) law was neglected and changed to the

western law during the colonial period, restorative

justice was put aside (Imran Adiguna, 2013). After

the western provisions and laws were considered

ineffective and inefficient anymore in settling

criminal cases righteously, many people introduced

and carried out restorative justice. In Indonesia, there

are penal mediation and adat reconciliation which,

basically, are the attempt to settle any criminal case

thoroughly (Ali Abubakar, 2014). In the system of the

adat law in Indonesia, a mediation forum is usually

established from the people’s own treasure; if there is

a dispute, the community will submit it to this forum

to be settled (Hooker, 1979).

The success in law enforcement found in Law No.

11/2012 is determined by some elements in the legal

system itself such as legal structure, legal substance,

and legal culture. These three elements are able to

explain why a regulation does not run well as what is

expected by the law makers (D.S. Dewi & Fatahillah

A. Syukur, 2011), especially about Law No. 12/2012.

The research problems are as follows: whether

Law No. 12/2011 on the Judicial System of Children,

along with its implementing regulation, is effective

enough to encourage the success in diversion, how

about the role of an investigator and community

leader in the process of diversion in the level of

investigation on children committing criminal acts,

and how about the model of the implementation of

negotiation in the process of diversion in the level of

investigation on children committing criminal acts.

1524

Ablisar, M. and Hamdan, M.

Developing Diversion Negotiation Model for Reconstructing Restorative Justice for Children Committing Criminal Acts, based on Local Culture at the Polrestabes, Medan.

DOI: 10.5220/0010086215241526

In Proceedings of the International Conference of Science, Technology, Engineering, Environmental and Ramiﬁcation Researches (ICOSTEERR 2018) - Research in Industry 4.0, pages

1524-1526

ISBN: 978-989-758-449-7

2 RESEARCH METHODOLOGY

The research used the combination of normative and

empirical research method. The normative research

studied the norms which were found in Law No.

12/2012 and any legal provision embodied in it.

Meanwhile, the empirical research used qualitative

study by digging up deeply diversion negotiation to

reconstruct restorative justice in children committing

criminal acts based on local culture at the Polrestabes

(City Sub-regional Police), Medan.

3 RESULT AND DISCUSSION

The substance of Law No. 12/2012 contains norms

which have multiple interpretations. Article 8 (1)

states that the process of diversion is carried out

through negotiation by involving children, their

parents or guardians, victims, and/or the victims’

parents/guardians, public figures, and professional

social workers, based on restorative justice approach.

Article 8 (2), in the case of negotiation as it is

stipulated in paragraph (1), can also involve

professional social workers, and/or public figures.

The research problems are whether diversion

negotiation cannot be held if some of them do not

appear in the negotiation, and whether the result of

diversion negotiation will be revoked if public figures

of professional social workers do not come to the

negotiation.

Article 10 of Law No. 12/2012 states that public

figures can be involved in diversion process. This

Article does not mention who the public figures are,

whether they are present at the place where the

criminal act occurs or they have the same

neighborhood as the perpetrators, or they have the

same neighborhood as the victims, or they are

considered as the persons who understand the

perpetrators’ characteristics. The result of diversion

negotiation can be the following types: a)

reconciliation with or without compensation, b) the

perpetrators are returned to their parents/guardians, c)

the perpetrators are sent to any educational

institutions or LPKS no longer than 3 (three) months,

or d) the perpetrators are punished as social workers

(Article 11). The result of diversion negotiation is not

limited since it also gives an opportunity for the other

alternatives besides the Article 11.

After a child is convicted as having committed

criminal act, the investigator (Polrestabes, Medan)

immediately makes a preparation for diversion which

has to be done no longer than 7 (seven) days after the

child has been convicted as the suspect. Detention

will be done for a child who commits criminal act

with criminal penalty of 7 (seven) years. When an

investigation begins, no longer than 1 x 24 hours, the

investigator will ask a public figure to be present to

accompany the perpetrator and to do social research.

A professional social worker is also asked to make

social report of the child victim and/or the child

witness. Prior to the diversion, the investigator is

required to make some consideration as follows: a)

the category of the criminal act, b) the perpetrator’s

age, c) the result of the social research from Bapas,

and d) the support from families and community.

The role of a public figure in the process of

diversion is doing a research on the case, the reason

for committing the criminal act, history of the client’s

life, family background, client’s educational

development, family’s economic condition. He is also

required to make a report on the social research for

the interest of diversion, to do accompaniment,

guidance, and supervision toward the perpetrator

during the process of diversion, and to carry out the

implementation of negotiation, including his report to

the Court if diversion is not implemented.

The opening session of diversion negotiation is

opened by a facilitator by introducing the persons

appearing and conveying the objective of the

diversion negotiation. He conveys the rules of order

to be agreed by the participants in the negotiation and

explains his tasks. All of the participants give

information in the discussion forum and keep order.

They must not attack or interfere with one to another.

All of them are expected to maintain favorable

atmosphere of the negotiation. If it is necessary,

caucus (special meeting) between the facilitator and

the perpetrator/victim/public figure is held.

Table 1: The children who got diversion in PPA Satreskrim

Poltabes Unit Medan from 2016 until 2018.

Year Amount Successful

Diversion

Unsuccessful

Diversion

2016 4 1 3

2017 3 - 3

2018 - - -

Based on the data above, the success of diversion

from 2016 to April 2017 is only one case of children

in conflict with the law from 7 cases of children who

are in conflict with the law. The lack of success in the

diversion of children in conflict with the law is caused

by victims of criminal acts not wanting to settle

through diversion but choosing the resolution of their

case through the court. Of the 4 children who are in

conflict with the law of 2016 and 3 children who are

Developing Diversion Negotiation Model for Reconstructing Restorative Justice for Children Committing Criminal Acts, based on Local

Culture at the Polrestabes, Medan

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in conflict with the law of 2017 both undergo the

diversion process but at the decision-making stage the

victim's child or the victim's parents do not accept the

diversion agreement.

The process of diversion in the investigation at the

Polrestabes, Medan, is facilitated by an investigating

facilitator who conveys the summary of indictment,

telling the child (perpetrator/parents/family) anything

related to the perpetrator’s criminal act, his testimony,

his apology, his regret, and his hope. The facilitator

gives an opportunity to the victim/parents/family to

give their response and the expected reconciliation.

The facilitator also gives an opportunity to the public

figure to give information about the social condition

of the victim and is expected to give some suggestions

for diversion reconciliation. When there is an

agreement in the process of diversion, the facilitator

makes a draft of agreement to be signed by the

participants in the diversion negotiation.

In organizing diversion reconciliation,

facilitator has to be aware that the reconciliation is not

contrary to laws, religion, local wisdom, and ethics or

containing anything which cannot be carried out by a

child or containing bad manners. After the diversion

negotiation is agreed, the investigator presents the

minutes of diversion and diversion reconciliation to

the Head of District Court to hand down a verdict. If

there is no agreement in the diversion negotiation, the

case will be turned over to the Criminal Judicial

System. In this case, the investigator is required to

carry on the investigation and to turn it over to Public

Prosecutor by attaching the minutes of Diversion and

the report of Public Figures.

4 CONCLUSIONS

Substantially, the norms found in Law No. 12/2012,

especially which is related to Diversion, contain some

Articles have multiple interpretations. The role of

public figures in conducting researches on children

committing criminal acts and doing accompaniment,

guidance, and supervision is very dominant for the

success in the process of diversion negotiation in the

level of investigation.The implementation of the

process of diversion is done in the level of

investigation on children who commit criminal acts

with criminal penalty under 7 (seven) years and not

the handling of criminal act which involves children

and their parents/guardians, victims and/or their

parents/guardians, public figures, and professional

social workers.

ACKNOWLEDGEMENTS

We would like to express our gratitude to the Rector

of the University of Sumatera Utara who has

bestowed Telenta fund research of the University of

Sumatera Utara of Professorial Research Scheme in

the fiscal year of 2018 Number:

452/UN5.2.3.1/PPM/KP-TELENTA USU/2018.

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