INTRODUCTION

So far, the penal system used in Indonesia has employed a Retributive Justice approach, a penal system commonly used by Western countries, which emphasizes punishment for offenders of criminal acts.1 However, in fact, this approach in some cases fails to restore the condition of the victims and, at the same time, does not show any form of accountability by the offender. This has led to the emergence of the Restorative Justice approach in convicting, including in Indonesia.2

The commitment of the Indonesian judiciary in implementing the Restorative Justice approach within the Supreme Court is reflected, in the Supreme Court Regulation of the Republic of Indonesia Number 1 of 2024 on Guidelines for Adjudicating Criminal Cases based on Restorative Justice (“SCR 1/2024”). This regulation, which was enacted on 2 May  2024, and came into force on 7 May  2024, generally stipulates the principles, objectives, scope, adjudication procedures, and administrative management procedures for criminal cases adjudicated based on Restorative Justice.

DISCUSSION

  1. Definition of Restorative Justice (Art. 1)
    According to this regulation, Restorative Justice is an approach in handling criminal cases that involves the parties, including the victim, the victim’s family, the defendant/child, the defendant’s/child’s family, and/or other related parties, with a process and aim that seeks restoration, rather than mere punishment.
  2. Scope (Art. 4)
    Compared to the previous guidelines, namely the Decree of the Director General of the General Judiciary Body of the Supreme Court Number 1691/DJU/SK/PS.00/12/2020 of 2020 concerning the Implementation Guidelines for the Application of Restorative Justice (“MA Decree 1691/2020“).3 This regulation has a broader scope of criminal cases. It applies to criminal cases including jinayat (Islamic criminal law), military, and juvenile cases, and must be implemented by all courts based on the applicable criminal procedure law.
  3. Procedures for Adjudicating Criminal Cases based on Restorative Justice (Art. 6-18)
    Requirements for Adjudicating with Restorative Justice (Art. 6)

    This regulation stipulates the conditions for adjudicating with Restorative Justice if one of the following criminal offenses is met:

    1. It is a minor criminal offense or the victim’s loss is not more than IDR 2,500,000.00 or not more than the local provincial minimum wage;
    2. It is a complaint offense;
    3. It is a criminal offense with a maximum penalty of 5 (five) years imprisonment in one of the charges, including jinayat offenses according to qanun;
    4. It is a criminal offense involving a child whose diversion was unsuccessful; or
    5. It is a traffic offense that constitutes a crime.

Judges are not authorized to apply the guidelines for adjudicating criminal cases with Restorative Justice if:

    1. The victim or the defendant refuses to do settlement;
    2. There is a power relations; or
    3. The defendant repeats a similar criminal offense within 3 (three) years after completing the court’s final and binding sentence.

Compared to the MA Decree 1691/2020, which differentiates the requirements for applying Restorative Justice based on the type of criminal offense, such as minor offenses, juvenile cases, cases involving women in conflict with the law, and narcotics cases. The conditions for adjudicating with Restorative Justice according to this regulation apply to all scopes as outlined in Article 4.

Guidelines for Adjudicating Criminal Cases Based on Restorative Justice in Criminal Acts Resulting in Victims (Art. 7-8)

According to this regulation, at the first hearing after the reading of the examination report or indictment record or indictment letter and the Defendant has acknowledged understanding thereof, the judge will give the Defendant an opportunity to admit or not admit to the alleged acts. If the Defendant admits to all of the allegations, this is also accompanied by the Defendant not filing an exception, thus allowing the hearing process to proceed with the Restorative Justice mechanism. However, if the Defendant does not admit to the allegations, whether in part or entirely, and/or files an exception to the indictment, then the case examination continues with procedural law.

Furthermore, according to this regulation, the judge will inquire of the public prosecutor about the presence of the victim in the hearing. If the victim is not present, the judge will suspend the hearing for up to 7 (seven) days and instruct the public prosecutor to bring the victim. In the event of the victim’s death, the victim’s interests in the hearing will be represented by the victim’s heirs.

In Case a Settlement Has Occurred between the Victim and the Defendant (Art. 9-10)

According to this regulation, if the victim explains in court that settlement has occurred before the hearing, the judge is authorized to examine the agreement made between the Defendant and the Victim. Furthermore, if the settlement has been implemented, the judge may take this into consideration in the judgment and proceed with the examination process.

Furthermore, according to this regulation, if settlement has occurred before the hearing but some or all of the agreement has not been implemented by the Defendant, the judge will inquire about the reasons for not implementing the agreement. If the Defendant states that they are unable to fulfill the agreement, the judge will inquire about the victim’s willingness to make a new agreement. If a new agreement is reached, the judge will facilitate a new agreement acceptable to both the Defendant and the Victim.

The Authority of the Judge to Facilitate Agreements (Art. 12)

According to this regulation, the authority of the judge to facilitate agreements between the Victim and the Defendant includes, among others, the following:

  1. Providing an opportunity for the Defendant and the Victim to express their issues and needs;
  2. Encouraging constructive communication between the Defendant and the Victim as an effort to restore their relationship;
  3. Providing advice to the Defendant and the Victim;
  4. Allowing the presence of religious, community, and/or traditional leaders upon the proposal or agreement of the parties;
  5. Making persuasive efforts to the Defendant and the Victim to reach an agreement that the Defendant can fulfill to meet the Defendant’s responsibilities and fulfill the interests and/or needs of the Victim for recovery;
  6. Instructing all statements of the Defendant and the Victim to be recorded in the hearing minutes;
  7. Instructing the Victim and the Defendant to submit copies of the settlement agreement to the Public Prosecutor and/or legal counsel;
  8. Advising the Public Prosecutor to consider the agreement between the Defendant and the Victim as a consideration in the indictment; and/or;
  9. Advising legal counsel to consider the agreement between the Defendant and the Victim as a consideration in the defense statement.

Forms of Settlement Agreements (Art. 14 & 18)

According to this Regulation, the forms of settlement can be as follows:

  1. The Defendant compensates for the loss;
  2. The Defendant performs an act; and/or
  3. The Defendant refrains from performing an act.

However, in the case of a complaint offense, the agreement can involve the Defendant either performing or refraining from performing an act, and the victim withdrawing the complaint as long as it is still within the statutory limitation period. This agreement is executed when the agreement is signed in front of the Judge, thereby empowering the Judge to declare the prosecution dropped or not admissible.

In Case Settlement Has Not Yet Occurred (Art. 15)

According to this regulation, if settlement has not yet occurred between the Defendant and the Victim, the Judge encourages the Defendant and the Victim to pursue or reach a settlement agreement.

Overall, the procedure for adjudicating criminal cases based on Restorative Justice represents a form of technical harmonization, compared to Decree of the Director General Supreme Court 1691, which differentiates the application of Restorative Justice based on the type of criminal offense.

  1. Settlement Agreement as Consideration for the Panel of Judges (Art. 19)

    According to this regulation, the Settlement Agreement between the Defendant and the Victim can serve as a reason for mitigating the punishment and/or imposing conditional/supervised punishment in accordance with statutory provisions.

    Imposition of Conditional/Supervised Punishment (Art. 19)

    In order to impose alternative punishment other than imprisonment and ensure the fulfillment of the agreement between the Defendant and the Victim, as well as to restore the victim’s loss, the Judge may impose conditional/supervised punishment by applying general and/or special conditions.

    The general conditions for imposing conditional/supervised punishment are set by the Judge for a maximum of 3 (three) years in the following cases:

    1. The committed criminal offense can be subject to conditional/supervised punishment and the Defendant is deemed suitable for such punishment;
    2. The Defendant has fulfilled the agreement made before the hearing or has fulfilled the new agreement.

Whereas the special conditions for imposing conditional/supervised punishment by the Judge apply in cases where the Defendant has reached an agreement but has not fully or partially implemented the contents of the agreement, or if the Defendant and the Victim have not reached an agreement.

Legal Remedies Against the Implementation of Guidelines for Adjudicating Criminal Cases Based on Restorative Justice (Art. 22)

According to this regulation, the Chief Judge of the appellate court has the authority to provide guidance, monitor, receive reports, and supervise the implementation of the Guidelines for Adjudicating Criminal Cases Based on Restorative Justice within the jurisdiction of the respective appellate court. This regulation is a new provision that was not included in the previous guidelines, namely Decree of the Director General Supreme Court 1691.

CONCLUSION

SCR 1/2024 aims to provide legal certainty regarding the procedures for adjudicating criminal cases based on Restorative Justice by the Supreme Court. With this regulation, it is expected to provide restitution to the Victim, improve the relationship between the Victim and the Defendant and/or the community, encourage accountability of the Defendant, and prevent deprivation of liberty, especially for children.

Daffa Fahrizky Mahardhika

Sources

  1. Alifianissa Puspaningtyas Nugroho, 2023, “Restorative Justice: Terwujudnya Asas Keadilan dan Asas Kepastian Hukum pada Instansi Kepolisian”, Recidive Journal, Edition No. 2. Vol 13, Page. 218
  2. Considerations SCR 1/2024
  3. Attachment Decree of the Director General Supreme Court 1691
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