Criminal Liability Form for Evil Children in the Judicial System

Immanuel Simanjuntak and Ediwarman

Program Doktor Ilmu Hukum, Universitas Sumatera Utara (USU-Medan), Medan, Sumatera Utara, Indonesia

Keywords: Criminal Liability, Evil Children, Criminal Justice System for Children.

Abstract: Law No. 11 of 2012 is a juvenile criminal justice system, in Article 1 number 2 stipulates that 'children who

are in conflict with the law' are those who are in conflict with the law, victims of criminal acts and witnesses

of criminal acts. This type of research is a type of normative and descriptive legal research that refers to

legal norms contained in legislation and court decisions and legal norms that exist in society. Descriptive

research aims to describe precisely the characteristics of an individual, a particular condition, symptom or

group, or to determine the spread of a symptom, or to determine whether there is a relationship between a

symptom and other symptoms in society. The results showed that law enforcement against children who

behave badly in the Criminal Code and outside the Criminal Code, explained that children who behave

badly or are dealing with laws or bad children, will be processed according to applicable regulations.

However the trial process must be in accordance with what is regulated by Law Number 11 Year 2012

concerning the Juvenile Criminal System. Suggestions submitted from the results of this study are that law

enforcers and related institutions always prioritize article 7 paragraph (1) of Law Number 11 Year 2012

concerning the Criminal Justice System for Children namely "at the level of investigation, prosecution, and

examination of cases of children in the state court must be pursued Diverse, 81 paragraph (2) of Law

Number 11 Year 2012. Punishment or imprisonment that can be imposed on children who are in conflict

with the law is a maximum of ½ (one half) of the maximum threat of imprisonment for adults.

1 INTRODUCTION

Discussing about children is very important since it

is a potential part of future human destiny. Children

play a role in determining the history of the nation as

well as a mirror of the nation's future life attitudes

(Wagiati Soetodjo, 2005). In the legislation the

attention to children has been formulated since 1925,

marked by the birth of Stb. 1925 No. 647 Juncto

Ordinance 1949 No. 9 which regulates the limitation

of child and women's work. Then in 1926 Stb. 1926

No. 87 which regulates the restriction of children

and young people working on the ship. Furthermore,

on March 8, 1942, the Criminal Code was born,

which was ratified on February 26, 1946. In several

articles, such as Articles 45, 46 and 47, it provides

protection for children who commit criminal acts.

Instead articles 285, 287, 290, 292, 293, 294, 295,

297, etc. provide protection for minors, by

aggravating penalties, or qualifying as criminal acts

of certain acts against children. Though sometimes

the act is not a criminal offense if done against an

adult. It was continued in 1948 the basic labor law

(Law No. 12 of 1948) which prohibited children

from doing work. On July 23, 1979 Law No. 4 of

1979 concerning Child Welfare with Regulation No.

PP. 2 of 1988 concerning Child Welfare Enterprises

(29 February 1988) (Darwan Prinst, 2003).

Internationally on November 20, 1989, the

United Nations Convention on the Rights of the

Child was appointed. Indonesia has ratified the

convention with Presidential Decree No. 36 of 1990.

The convention contains the obligations of States

ratifying it to guarantee the implementation of

children's rights (Darwan Prinst, 2003). When

referring to psychological aspects, human growth

experiences phases of psychiatric development, each

of which is characterized by certain characteristics.

To determine the criteria of a child, besides being

determined on the basis of age limits, it can also be

seen the growth and development of their soul which

was experienced (H. Marsaid, 2015). Someone

becomes evil (bad) or good is influenced by the

community environment. When a person weakens or

breaks his social ties with society and at the same

time there is a transformation of the function of

social control institutions, the potential for someone

Simanjuntak, I. and Ediwarman, .

Criminal Liability Form for Evil Children in the Judicial System.

DOI: 10.5220/0010294900003051

In Proceedings of the International Conference on Culture Heritage, Education, Sustainable Tourism, and Innovation Technologies (CESIT 2020), pages 75-81

ISBN: 978-989-758-501-2

to behave in deviance tends to increase (Maidin

Gultom, 2014).

A child committing a crime not only has an

impact on the security and order of society, but can

also have a harmful impact that threatens the future

of the nation and state. Circumstances can affect

children's behavior. Therefore, in dealing with the

problem of bad children, parents and the community

should be more actively responsible for the

guidance, guidance, education, and development of

children's behavior for the better.

Parental involvement in guiding children not to

commit crimes is very much needed (E. J. Gifford et

al, 2020). Various studies have been carried out

related to criminal liability [15-18] towards bad

children and the juvenile criminal justice system

[20-23]. In this case, when children commit

violations, it is the parents who are responsible, so

they need stronger support for parents to also

provide education to parents (Eva Aizpurua, 2020).

In essence, children cannot protect themselves

various kinds of actions that cause mental, physical,

social harm in various fields of life and livelihood.

Children must be assisted by others in protecting

themselves, especially in the implementation of

juvenile criminal justice that is foreign to him.

Children need to be protected from mistakes in

applying the laws and regulations that are applied to

them, which cause mental, physical, and social

harm. Child protection in this case is called legal /

juridical protection (legal protection) (Maidin

Gultom, 2014). Children with disabilities also need

to be protected from crime and violence (Mogens

Nygaard, 2019), as well as the need to protect

children who are exploited online (Thomas J. Holt et

all, 2020).

The position of the child as a young generation

(the successor to the noble ideals of the nation,

future leaders, and sources of hope for the previous

generation) needs to have the broadest opportunity

to grow and develop naturally, both spiritually,

guaranteeably, and socially. Child protection is a

business and activity of all levels of society in a

variety of positions and roles, which is well aware of

the importance of children for the homeland and

nation in the future. If the child has matured in

physical as well as mental and social growth, then

the time has come to replace the previous generation

(Maidin Gultom, 2014).

Child protection is any effort made to create

conditions so that every child can carry out their

rights and obligations for the development and

growth of children naturally, physically, mentally

and socially. Child protection is an embodiment of

justice in a society, thus child protection is pursued

in various fields of state and community life. Child

protection activities bring legal consequences, both

in relation to written law and unwritten law (Maidin

Gultom, 2014).

Child protection efforts need to be carried out as

early as possible, from the fetus in the womb to the

eighteen-year-old child. Based on the concept of

comprehensive, comprehensive and comprehensive

child protection, Law No. 23 of 2002 lays down the

obligation to provide protection to children based on

the principles (Rika Saraswati, 2015): (i) Non-

discrimination is a principle that does not

distinguish, limit, or isolate children, either directly

or indirectly based on religion, ethnicity, race, social

status, economic status, culture, or gender that can

affect the fulfillment and protection of children's

rights. (ii) The best interests of the child are the

principle that emphasizes that in all actions relating

to children carried out by the government, the

community, or the legislative and judiciary bodies,

the best interests of the child must be a primary

consideration. (iii) The right to life, survival, and

development is a principle that emphasizes that

every child has the right: To live safely, peacefully,

happily peacefully, physically and spiritually; For

fulfilling his basic needs to grow and develop

properly; and to achieve an adequate standard of

living for physical, mental, spiritual, moral and

social development. The LoGA states that those who

have obligations and responsibilities are parents, the

community and the government. (iv) Respect for the

views / opinions of children is a principle that gives

the right to children to express opinions in all

matters that affect children, including: The right to

opinion and obtain consideration for their opinions;

The right to get and know information and to

express; The right to associate in a relationship to

join; and The right to obtain appropriate and

protected information from unhealthy information.

Protection of children becomes very important

because violations of children's rights are essentially

violations of human rights. In addition, violations of

children's rights can be a very big barrier to

children's survival and development. Children who

experience violence, exploitation, neglect and other

mistreatment will experience risks, such as shorter

lives, having poor mental and physical health,

experiencing problems related to education

(including dropping out of school), having poor

skills as people old, become homeless, driven out of

their homes, and don't have a home. However, on

the other hand, successful protective measures will

increase the chances of children to grow up

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physically, mentally, confidently, and have self-

esteem, and are less likely to abuse or exploit others,

including their own children (Rika Saraswati, 2015).

Child protection can be done directly or

indirectly. Directly means that the activity is directly

aimed at children who are the target of direct

handling. Activities like this can take the form of

protecting children from external and internal

threats, educating, fostering, assisting children in

various ways, preventing starving children and

seeking their health in various ways, providing self-

development facilities and so on. Whereas indirect

child protection is an indirect activity aimed at

children, but other people who carry out / are

involved in child protection efforts. Such protection

efforts are for example carried out by parents or

those involved in efforts to protect children from

various external or internal threats in the form of:

Nurturing, fostering, assisting children in various

ways; prevent hunger children, seek health, and so

on in various ways; provide child self-development

facilities and so on; and provide a justice system for

children (Ridho Mubarak, Wessy Trisna, 2012).

2 METHOD

This type of research is normative law (descriptive)

or can be referred to as normative juridical research

which refers to the legal norms contained in

legislation and court rulings and legal norms that

exist in society (Zainuddin Ali , 2009). Descriptive

research aims to describe precisely the

characteristics of an individual, a situation, a

particular symptom or group, or to determine the

spread of a symptom, or to determine the presence

or absence of a relationship between a symptom and

other symptoms in society (Amiruddin and Zainal

Asikin, 2012). The Norms / laws / regulations

relating to children used in this study were Law No.

35 of 2014 Jo. No. 23 of 2002 concerning child

protection and law No. 11 of 2012 concerning the

juvenile criminal justice system.

As a case study of a number of developments in

child crime in cases of theft, narcotics in various

courts in North Sumatra (such as in the Binjai

District Court, Tarutung District Court, Sei Rampah

District Court, Sibolga District Court, Balige District

Court, Tarutung District Court) in 2017- 2019 as in

Table 1 were used [25-29].

Table 1: Number of child crimes in theft and narcotics

cases in the District Court [25-29].

No. Type of

crime

Years Number of

cases

2017 2018 2019

Binjai

1. Thef

17 2 10

2. Narcotics 3 2 2 7

Total 4 9 4 17

Tarutung

1. Thef

31 3 7

2. Narcotics - 1 1 2

Total 3 2 4 9

Sei Rampah

1. Thef

-- 7 7

2. Narcotics - 2 4 6

Total - 2 11 13

Sibolga

1. Thef

11 4 5 20

2. Narcotics 2 1 3 6

Total 13 5 8 26

Balige

1. Thef

27 6 8 41

2. Narcotics - 2 3 5

Total 27 8 11 46

Table 1 shows criminal acts committed by

children in cases of theft and narcotics that occurred

in 2017-2019 in several district courts in North

Sumatra, namely the Binjai district court, Tarutung

district court, Sei Rampah district court, Sibolga

district court, Balige district court. It can also be

seen that the highest cases of theft and narcotics are

at the Balige district court

Table 2: Minimum and maximum age limits for criminal

offenders in some countries (Marlina, 2009).

Country Minimum

(Years)

Maximum(Years)

United States 8 18

Australia 8 16

land 12 16

Netherlands 12 18

Japan 14 20

Korea 14 20

Philippine 7 18

Taiwan 14 18

Iran 6 18

Sri Lanka 8 16

Cambodia 15 18

Mala

sia 7 18

Criminal Liability Form for Evil Children in the Judicial System

Table 2 shows the minimum and maximum age

limits for perpetrators of crimes committed by

children in several countries.

Table 3: Age limits of children dealing with the law

according to law number 11 of 2012 [24].

Children who are

confronting the law

Age limit

Children in conflict with the

law

Children who are 12

years old, but not

yet 18 years old are

suspected of

committing criminal

offenses.

Children who are victims of

crime

Children who are

not yet 18 years of

age who suffer

physical, mental,

and / or economic

loss caused by a

crime.

Children who witness

criminal acts

Children who are

not yet 18 years of

age who can provide

information for the

purposes of

investigation,

prosecution and

examination in a

court of law

concerning a

criminal case that

was heard, seen, and

/ or experienced by

themselves.

In Table 3 is the age limit for children who are

faced with the law, where in table 3 it describes the

age limit of children as perpetrators of crime, the age

limit for children as victims in criminal acts, and the

age limit for children as witnesses in criminal acts.

3 RESULTS AND DISCUSSIONS

3.1 Forms of Criminal Liability for

Evil Children in the Criminal

Justice System for Children

Civil law countries (in the sense of the Roman law

we just described above) are different from common

law countries. Civil law countries can be classified

by taking into account their legal sources (i.e.,

regulations, laws and main legislation in force). The

characteristics of the mode of thought relate to legal

issues, different legal institutions (and judicial,

executive and legislative structures), and their

fundamental legal ideology. All of these elements

determine its 'unique juristic style' (see Chapter 2).

Common law countries in general are countries

whose juristic style is based on the British common

law model, which is mainly established based on a

judicial system case or precedent, and legislation is

not traditionally considered as the main source of

law but is usually regarded as merely a means of

consolidation or clarification of rules and legal

principles essentially derived from case law and

made by judges (Peter de Cruz, 1999).

Criminal Law is the law that determines criminal

acts and determines the wrongdoing for perpetrators

(the substance of the Criminal Law) and the law

which determines the implementation of the

substance of criminal law (criminal procedural law).

In Indonesia, criminal law is divided into two types,

which are collected in a codified book or criminal

law code (KUHP) is a general criminal law and

which is spread in various laws about certain things

(is a special criminal law) . Violations of criminal

law regulations can be qualified as a crime or

violation (Maidin Gultom, 2014).

Developed countries have criminal procedural

law structures characterized by organizing criminal

proceedings quickly, simply, and at a low cost.

Criminal proceedings that are carried out quickly are

defined as avoiding all obstacles that are procedural

in nature, in order to achieve work efficiency from

the investigation to the implementation of the final

decision in a relatively short time. A simple criminal

proceeding is defined as an integrated administration

so that the filing of cases from each competent

agency runs in a single unit that does not provide

convoluted circuit court opportunities. (Maidin

Gultom, 2014).

In criminal cases (after investigations,

prosecutions, courts, and penalties), general justice

is used to handle cases. Whereas in juvenile criminal

cases used are special justice (by child investigators,

child prosecutors, child judges, and special prisons

for children).

The form of the criminal justice system consists

of four parts namely the police, prosecutors, courts

and correctional institutions. The four sections work

together to bring about justice. Stages in the criminal

justice process that is the pre-trial stage (before the

trial) includes investigations and investigations, the

judiciary (during the trial) covers the examination

and verification of the demands of the prosecutors

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and the post-trial (after the trial) includes the

implementation of decisions that have been

determined in the trial such as the placement of the

convicted person in the trial correctional institution

(Marlina, 2009).

With the existence of a criminal justice system, it

is expected to solve the problem of crime in society.

Child criminal justice is regulated in Law Number

11 Year 2012 concerning the juvenile justice system.

The juvenile justice system law is formed based on

considerations, among others: (Maidin Gultom,

2014): Children are the mandate and gift of God

Almighty who have dignity and dignity as whole

human beings; To safeguard the dignity of children,

children are entitled to special protection, especially

legal protection in the justice system; Indonesia as a

Country of Conclusion on the Right of the Child

which regulates the principle of legal protection for

children has an obligation to provide special

protection for children in conflict with the law.

Law No. 11 of 2012 concerning the juvenile

criminal justice system, in Article 1 number 2

determines that 'children who are in conflict with the

law' are children in conflict with the law, victims of

criminal acts, and witnesses of criminal acts (Hadi

Setia Tunggal, 2013). Academically there are two

categories with the terms 'status offender' and

'juvenilledeliquency'. (Abintoro Prakoso, 2015)

Offender status is a child's delinquency behavior

which when done by adults is not considered a

crime, for example disobeying, ditching school and

running away from home. Juvenile Delinquency is a

child's delinquency behavior which if done by an

adult is considered a crime or a violation of the law

(Abintoro Prakoso, 2015).

From the understanding of Juvenile delinquency,

it can be said that children who behave badly as well

as offenders are victims. Victims of mistreatment of

parents, victims of teacher education at schools,

victims of local government policies, and victims of

social environments that put psychological pressure

on them so that children do things that should not be

done. From the explanation above, it is found that

children are not only perpetrators but also victims, it

can be stated that the actions are as (Hadi Supeno,

2000):

Children convicted of immorality for watching

pornographic material. Children are victims of adults

who make and distribute pornography.

Children who are convicted of rape, in fact the

child becomes a rapist after watching a film that

contains pornographic material in the cinema.

children who smoke, it is because cigarette

advertisements are very tempting and stimulating to

do so.

children who get drunk and then race and fight

because of alcohol production and distribution.

children who use drugs and other addictive

substances are victims of makers and dealers (due to

orders from adults).

bullying children (torture or harassment that is

carried out without motive, but intentionally or

repeatedly against weaker people).

Bad child or referred to by law No. 11 of 2012

with children who face the law and more commonly

known as bad boys must remain responsible for the

law for their actions. The law must be upheld even if

the subject of the crime is a child. Enforcement of a

law against a child who commits a crime will be

seen from the legal arrangements of the changes and

existing regulations.

Law enforcement against children is not enough

if it is only based on material laws as regulated in

the Criminal Code. Legal provisions in the Criminal

Code are not only conventional in nature, but also

because human behavior and civilization are so

complex that their development is much faster than

existing rules [11].

Thus it is inevitable that many types of crimes

arise due to technological advances, and it is also

inevitable that these types of crimes can be

committed by children. Therefore, through Article

103 of the Criminal Code [13], there are still

justified other acts which according to the law other

than the Criminal Code can be punished as long as

the law is related to the problem of children and

does not conflict with the Criminal Code (lex

Specialis Derogat Legi Generali). Through this

principle, the child criminal law justifies other laws

outside the Criminal Code relating to child problems

such as (Maulana Hasan Wadog, 2000) Law:

Number 11 of 2012 concerning the Criminal Justice

System; Number 35 of 2014 concerning Amendment

to No. 23 of 2002 concerning Child Protection;

Number 35 of 2009 concerning Narcotics; Number 7

of 1997 concerning psychotropic substances;

Number 23 of 2004 concerning Domestic Violence;

Number 39 of 1999 concerning Human Rights jo.

Number 26 of 2000 concerning Human Rights

Courts; Number 15 of 2003 concerning the Criminal

Acts of Terrorism.

With the issuance of Law Number 11 of 2012

concerning the Juvenile Criminal System which

replaces Law Number 3 of 1997 concerning Juvenile

Courts which states that 'children in conflict with the

Law' are children who are 12 (twelve) years old but

Criminal Liability Form for Evil Children in the Judicial System

not yet old 18 (eighteen) years (Marlina, 2009).

From this law it is clear that the legislators have

agreed that the age of 8 (eight) years is indeed an

age that still cannot be held accountable for the

actions done. An eight year old child still doesn't

understand what he is doing. If a child who is not yet

12 years old commits or is suspected of committing

a crime or in other words that the child is not even

18 years old, then the child will still be tried before

the child. More clearly in Article 20 it is stated that:

"In the case of a criminal offense committed by a

child before the age of 18 years and submitted to the

juvenile court after the child concerned exceeds the

age limit of 18 years, but has not reached the age of

21 years, the child is still brought to the juvenile

court (Hadi Setia Tunggal, 2013) ".

Also by looking at Table 2 and Table 3, there are

differences in the ages of children who face the law

in each country, especially in Indonesia which has

been regulated in Law Number 11 of 2012

concerning the Juvenile Criminal Justice System.

Table 3 explains the age limit of a child as a criminal

act, the age limit of a child as a victim in a criminal

act, the age limit of a child as a witness in a criminal

act.

Based on the description above regarding law

enforcement against children who behave badly in

the Criminal Code and outside the Criminal Code, it

is clear that children who behave badly or children

who are dealing with the law or bad children, will be

processed according to the applicable provisions,

namely by looking at the elements of the article

charged, namely the articles Article contained in the

Criminal Code and other laws and regulations

outside the Criminal Code. However the trial

process is in accordance with what is regulated by

Law Number 11 Year 2012 concerning the Juvenile

Criminal Justice System [24]. If it turns out that the

elements of the article are proven and carried out in

error then according to Article 81 paragraph (2) of

Law Number 11 Year 2012 concerning the Child

Criminal Justice System, a sentence or imprisonment

that can be imposed on a child who behaves in an

evil manner or a child who is in conflict with the law

or a child naughty is the longest ½ (one half) of the

maximum threat of imprisonment for adults [Hadi

Setia Tunggal, 2013]. In Article 81 paragraph (6) it

is stated that "If a criminal offense committed by a

child constitutes an offense threatened with capital

punishment or life imprisonment, the punishment

that can be imposed is a maximum imprisonment of

10 (ten) years.

As an example in Table 1, there are many cases

of children who have faced the law in criminal acts

of theft and narcotics, one of the cases of children in

Binjai District Court [25] with case number 3 /

Pid.Sus-Anak / 2019 / PN Bnj. In this case (child's

name is disguised), namely having a final sentence

of imprisonment for a certain time (4 years 10

months), a subsidiary fine of Rp. 800,000,000.00,

others.

4 CONCLUSIONS AND

RECOMMENDATIONS

4.1 Conclusions

Criminal liability against children who commit

crimes or criminal acts according to positive law in

Indonesia can be done by applying the criminal code

such as articles on crimes against decency,

humiliation, crimes against life, abuse and theft,

which are contained in Chapters XIV, XVI, XIX,

XX, XXI, respectively. Articles that can be used

such as those concerning negligence and regulations

that are outside the Criminal Code relating to child

problems such as the law: No. 11 of 2012

concerning the Juvenile Criminal System and No. 35

of 2014 concerning Amendments to Law No. 23 of

2002 concerning Child Protection.

4.2 Recommendations

Harmonization between the implementation of

criminal liability against evil children with the

protection of children so that children who are

processed or punished can get the appropriate rights.

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Criminal Liability Form for Evil Children in the Judicial System