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This edition of ICLaD will discuss the implementation of Law No. 11 of 2012 on Juvenile
Justice System (Sistem Peradilan Pidana Anak). A law that is projected as a regulation that
upholds the right of children and adopts certain principles stated in the Convention on the
Right of the Children. The Juvenile Justice Law has been considered as a progressive
movement on legal aspect towards the protection of right of children in Indonesia and set a
whole new level of juvenile justice system.
However, despite its positive responds, the Juvenile Justice Law is still subject to several
strong criticisms. One of the criticisms is arisen due to the lack of control on the
implementation of forceful measures. To a certain extent, the Juvenile Justice Law is still
practicing the basic principle of Law No. 8 of 1981 on Criminal Procedural Law (KUHAP
1981). Hence, it is become apparent that the Juvenile Justice Law inherits the defect on
human rights protection aspect since its being in force. After all, the KUHAP 1981 has been
acknowledged as a legislation product with poor human rights protection principle,
especially on provisions that are related to the authority of law enforcer and insufficiency of
control on forceful measures.
Apart from the defect, the Juvenile Justice Law was drafted without a proper preparation.
The Institute for Criminal Justice Reform (ICJR) noted that the government has
responsibility to formulate six subject matters in the form of Government Regulation and
two subject matters in the form of Presidential Regulation.
Unfortunately, the government shows a significant slow respond. The Government was
eventually took serious action in formulating those subject matters after the Juvenile
Justice Law is effectively enforced on 30 July 2014. Practically, the government had two
years prior the Juvenile Justice Law is enforced that should have been used effective to
prepare necessary actions. During the discussion of Draft Bill on Juvenile Criminal Justice,
many criticisms and issues were arose on the lack of public disclosure when drafting
provision on diversion, access to legal aid, development of non-custodial measures
program, juvenile case registration, form and procedure in imposing criminal punishment,
as well as the Provisions on the form and procedures of non-custodial measures
We hope that this ICLaD will picture the expectation attached by public to the new Juvenile
Justice Law.
Enjoy reading
Ifdhal Kasim
Editor in Chief
Editor in Chief
Issue No.2 (Desember 2014)
SSPPPPAA LLaaww:: TThhee UUnneexxppeecctteedd FFaaiilluurree
The regulatory framework on juvenile
justice system came into the radar when
the Ministry of Women Empowerment and
Children Protection proposed the Draft Bill
on Juvenile Justice System (“Draft Bill”)
on April 2011. After a year of discussion
and debate, the Draft Bill was finally
passed by the House of Representatives
(“House”) on 2 July 2012 as a Bill, and
consequently repealing and replacing Law
No. 3 of 1997 on Children Court (“1997
Law”).1 The Bill, was signed by the
President on 30 July 2012 and registered
as Law No. 11 of 2012 on Juvenile Justice
System (Sistem Peradilan Pidana Anak –
“SPPA Law”).2 Even though it was passed
on 2012, the SPPA Law did not come into
force immediately, as the transitional rule
of the SPPA Law stipulates that it will fully
enter into force on 30 July 2014, or 2 years
after it was passed and enacted.
When President Susilo Bambang
Yudhoyono signed the SPPA Law, Minister
of Law and Human Rights Amir
Syamsuddin said that it is a proof that
Indonesia has made a progress on child
protection, considering Indonesia has
ratified the Convention on the Rights of the
Child. It is evident from the SPPA Law’s
provisions that encourage non-litigation
measures, and stipulates that criminal
sanction is not necessarily mean a
punishment.3 Therefore, the SPPA Law is
an important piece of legislation for the
judicial system reform in terms of creating
a system that prioritizes children rights
protection.
The SPPA Law incorporates several important provisions, among others:4
1. The philosophical foundation of juvenile justice system is shifted from retributive into
restorative
2. The definition of “child”, which was previously elaborated as the perpetrator, now also
covers children that are in contact with the law (anak berhadapan dengan hukum –
“ABH”), which includes the perpetrator, victim, and witness
3. The age limit is changed from 8-18 years old to 12-18 years old, and it will not be
affected by the marriage status
4. Deletion of the following categories: “criminal child” (anak pidana), “state child” (anak
negara), and “civil child” (anak sipil)
5. Diversion measure within the judicial process
6. Stipulating the rights of child perpetrator, victim, and witness
7. The limitation on deprivation of liberty, which is now a measure of the last resort, with
shorter period of time and the age of limiation at 14 years old (maximum)
8. Reinforcement of the role of correctional facility officer (LP) and social workers
9. Mandatory legal aid
10. The placement of perpetrator at LPAS (Lembaga Penempatan Anak Sementara) , LPKA
(Lembaga Pembinaan Khusus Anak), and LPKS (Lembaga Penyelenggara Kesejahteraan
Sosial)
11. Criminalization and Witness
12. The placement of victim at relevant institutions.
The SPPA Law incorporates provisions for
the law enforcement officials so that the
children do not have to undergo the
criminal proceeding. This is a consequence
from restorative justice paradigm adopted
by the SPPA Law, in which a process
called “diversion” will be conducted so that
children will not undergo the formal
judicial proceeding, and making
punishment as the ultimum remedium.5
Nevertheless, there are several issues that
must be addressed in order to assure that
the diversion is well-implemented.
The first issue is that the diversion under
the SPPA Law is always related to the
settlement model between the perpetrator
and the victim. Article 9 (2) of the SPPA
Law states that Diversion Settlement must
be approved by the victim and/or the
family of the victim. Therefore, the
implementation of diversion under Article
9 (2) of the SPPA Law relies on the
victim’s approval. Consequently, the best
interest for the children principle is no
longer prioritized.
The second issue is in regards to Article
9 (1) of the SPPA Law, which states that
investigators, prosecutors, and judges
must consider several requirements in
executing diversion. The Elucidation of the
said article states that “Diversion is not
intended to be used for perpetrators of
serious crimes such as manslaughter,
rape, drug abuse, and terrorism that are
subject to 7 years of imprisonment”.
Regarding this article, the term “serious
crime” is not acknowledged under the
Indonesian criminal law. The Indonesian
Criminal Code (KUHP) does not categorize
this type of crime, nor does other laws.
Therefore, it is possible that the law
enforcement officials may broaden the
definition of this term.6
Additionally, there is a dilemma in limiting
diversion, where it only applies to crime
that subject to less than 7 years of
imprisonment. This provision,
consequently, limits the diversion
opportunity for children. Based on the
data collected by ICJR, theft is the most
frequent misdemeanor committed by the
children. This crime is stipulated under
Article 363 (1) of the KUHP, which is
always used by the public prosecutor and
this article allows the prosecutor to indict
the perpetrator with 7 years of
imprisonment (maximum).7 Therefore, if
diversion may only be conducted for
crimes that are subject to less than 7
years of imprisonment, then there will be
more children that will not get diversion.
“There is a dilemma in limiting diversion, where it only applies to crime that subject to less than 7 years of imprisonment”
About ICLaD
Indonesia Criminal Law Digest (ICLaD) is a new feature from Institute
for Criminal Justice Reform. ICLaD is presented by the ICJR as one of
the instrument and communication medium to inform the recent
development on criminal law and criminal justice system reforms in
Indonesia.
The third issue is in regards to diversion
that cannot be conducted to children that
repeating the same crime.8 It is a clear
inconsistency if the main purpose of
diversion is to prevent children from
judicial process, to achieve restorative
justice, and to educate the children, but it
cannot be conducted for those who
repeating the crime.
The fourth issue is regarding the
diversion that may be conducted without
the victim’s approval, must be clearly
regulated under the SPPA Law’s
implementing regulation, at the level of
government regulation (PP SPPA). The
most important aspect of the diversion
without the victim’s approval must be
strengthened under PP SPPA. Diversion,
which aims to prevent children from the
burden of undergoing judicial process, will
have greater impact especially for
Diversion without the victim’s approval
under the SPPA Law, namey for violation,
petty crime, or the loss is not greater than
the local minimum wage.9
Deprivation of liberty is one of the most
highlighted issues under the Convention
on the Rights of the Child. Article 37 of
Convention on the Rights of the Child
states that No child shall be deprived of
his or her liberty unlawfully or arbitrarily,
and the arrest, detention or imprisonment
of a child shall be in conformity with the
law.
The problem lies under the arrest and
detention under the SPPA Law, which
stipulates new provisions that set aside
KUHAP’s provisions, but on the other hand
fail to stipulate basic provisions such as
the requirements of deprivation of liberty
as stated under KUHAP.
For example, the SPPA Law does not
stipulate the authority to arrest. The most
significant change is evident from the
elucidation of the time limit “24 hours”
under Article 30 (1) of the SPPA Law,
which is calculated based on working
hours. In addition, the placement of
children in specific area, or if there is no
such facility, the children may be placed at
LPKS.10 Nevertheless, the SPPA Law is yet
to resolve the basic problem regarding an
arrest under KUHAP, which is what can be
considered as sufficient preliminary
evidence.
One of the most basic issue regarding an
arrest is the term “sufficient preliminary
evidence”, which is the ground for the
investigator to arrest a person.11 In
regards to “determination of a suspect”
and “sufficient preliminary evidence”, the
SPPA Law does not resolve the problem
under KUHAP. As a result, it leads to
“legal uncertainty” and gives problem in
interpreting “sufficient preliminary
evidence”, as it is the discretion of
investigator.12
In terms of detention, the basis for a
detention, covering legal ground,
condition, and requirements that allow law
enforcers to conduct a detention. These
aspects are supporting each other, and if
one does not exist, a detention will not
satisfy the legality principle.13 Pursuant to
KUHAP, there are three elements for the
ground of detention. The first one is legal
element, or legal ground, as the law has
determined which articles that are subject
to detention. Article 21 (4) of KUHAP
stated that a detention may only be
exercised against a suspect or defendant
that committing a crime that is subject to
five years of imprisonment or more.
In addition, a detention may also be
imposed against a perpetrator that is
specifically stated under KUHP and other
special crimes, even though the
punishment is less than five years. It can
be conducted based on the consideration
that the crime is affecting the public
order, and threatening the safety of the
general public. Crimes that fall under this
category can be found under KUHP and
other laws.14
For the legal ground, the SPPA Law sets
out limits for detention against a child.
Article 32 (2) of the SPPA Law states that
a detention is allowed for a child that
already reached 14 years of age or more,
or is allegedly accused for a crime that is
subject to 7 years of imprisonment or
more.
The next element is the necessity
element, which highlights the current
situation or the necessity of a detention is
conducted, based on the condition of a
suspect or defendant. This element is
assessed based on the investigator’s
subjectivity, but must be able to be tested
in an objective way. The situation or
necessity can be found under Article 21
(1), which states the concerning situation
in which: (1) the accused or defendant will
escape; (2) damaging or disappearing
evidences; and (3) repeating a crime.15
The official that evaluate those concerning
situation will use their subjectivity, while
at the same time see the current objective
aspects. There are, however, some
indicators that may be used to see the
subjective aspects, namely:16
The possibility to escape can be seen from
the mobility of a suspect, profession and
occupation of a suspect, family support to
escape, and if the suspect has no
permanent domicile.
Damaging or disappearing evidences, can
be seen from how much (percentage) of
evidences that obtained by the
investigator. It can also be seen if the
evidences are minimal, and there is a
possibility to disappearing the evidences.
Or seeing the condition or support for the
suspect, to make evidences disappear,
including to threat key witnesses.
Jl. Cempaka No 4, Pasar Minggu,
Jakarta Selatan
Jakarta – Indonesia 12530
@icjrid
http://icjr.or.id
“Detention against a child cannot be executed if the
child is guaranteed by the parents/legal guardian
and/or other institution, that the child will not escape,
disappearing or damaging evidences, and/or
repeating the crime”. SPPA Law Article 32 (1)
The concerning situation “repeating a crime” can be seen from suspect’s criminal
record, victim’s condition, and the type of crime, whether it is rape, manslaughter,
drug abuse, and terrorism, then there is a priority for detention.17
Furthermore, the SPPA Law does not give new definition or provision regarding the
necessity element. Pursuant to Article 32 of the SPPA Law, it only stipulates the legal
element,18 and the SPPA Law does not discuss the necessity element. This will lead to
a possibility that a child as the suspect will be easily detained.
The SPPA Law, in fact, stipulating new provision under Article 32 (1), which states that
“Detention against a child cannot be executed if the child is guaranteed by the
parents/legal guardian and/or other institution, that the child will not escape,
disappearing or damaging evidences, and/or repeating the crime”. This article leads to
a serious problem, as personal guarantee or bail is a part of detention postponement,
and not a requirement for a detention or not.
As a consequence, the complaint mechanism against a detention, which is the
detention requirement, will only be based on the formal requirement on whether or
not there is a guarantee letter or detention warrant, no longer the urgency to conduct
a detention. The Constitutional Court Decision No. 018/PUU-IV/2006 reviewing Article
21 (1) of KUHAP, states that “Pretrial hearing (Praperadilan) regulated under Article
77 KUHAP that is established to evaluate the legality of a detention, should not merely
assess the formal or administrative aspect of a detention, but also the more important
aspect, which is the rationale behind a detention”. The decision must be understood as
a reference that pretrial is a process to assure law enforcement to achieve justice, not
merely formal or procedural aspect.
It must be highlighted that detention requirements under Article 21 (1) of KUHAP are
different with the requirements for an arrest, in which the evidence is the distinctive
factor.19 An arrest can be conducted if there is a sufficient preliminary evidence, while
detention needs sufficient evidence. In other words, the quality of evidence for a
detention is higher than for an arrest.20 The SPPA Law does not give more explanation
on sufficient evidence, and therefore detention is not fully solved under the SPPA Law.
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There are at least two concerning issues
under the SPPA Law regarding oversight
and complaint mechanism against coercive
action, both against arrest and detention.
The first issue is in regards to Article 9 of
the International Covenant on Civil and
Political Rights (ICCPR) and complaint
mechanism that must be established as an
institution. Both of these problems are not
incorporated under the SPPA Law, and
Article 16 of the SPPA Law legitimizes the
use of KUHAP, and SPPA Law’s power to
protect the children is questionable.
Pursuant to Article 9 of the ICCPR, when an
investigator conducting an arrest, then he
must bring the suspect promptly to the
judge that has the power to detain. In
broader term, “promptly” is defined as
2x24 hours or a couple of days.21 No single
provision under the SPPA Law that refers to
this provision. Meanwhile, the mechanism
to oversee coercive action, arrest, and
detention under the SPPA Law still referring
to KUHAP.
Pursuant to Article 37 (d) of the Convention
on the Rights of the Child, a child that
undergo deprivation of liberty is entitled to
question the legality of such action before
the court or other independent and
impartial officer, and he is also entitled to
obtain the decision regarding the
deprivation of liberty. However, this is not
clearly stated under the SPPA law, and the
only complaint mechanism and oversight
against the coercive action, arrest, and
detention, is through the pretrial hearing.
In a glimpse, pretrial hearing has the
power to protect the interest of a minor
suspect and defendant. However, based on
ICJR’s research, pretrial is not the most
effective institution to be used as a
complaint mechanism against a arrest and
detention.22
Pretrial proceedings are more emphasizing
on procedural paradigm from the judge,
and consequently, the pretrial decisions do
not reflect the essence of a pretrial. It must
be noted that the idea of establishing a
pretrial hearing is to assure the protection
for the citizens that undergo deprivation of
liberty.23
In addition to basic problems regarding
pretrial, the reality in regards to pretrial
proceedings are not in accordance with the
SPPA Law. In general, from 80 cases
observed by ICJR, only 4 cases that are
decided within the 1-7 days timeframe,
while most of the pretrial cases are decided
more than 7 days. In details, cases that are
decided in 8-14 days are 16 cases; 15-21
days, 35 cases; 21-28 days, 15 cases; 29-
36 days, 7 cases; and 37-45 days, 3
cases.24
The duration of detention against a child
during investigation phase with maximal
extension is 15 days, while during
prosecution is 10 days. This means that
pretrial petition can be filed within 25 days
from the start of the detention.25 Seeing
from the timeframe of submitting a pretrial
petition under the SPPA Law, and
compared it with the reality in pretrial
proceedings, there will be a serious
problem in terms of handling pretrial for
child cases.
In addition, the availability of lawyers also
affecting the use of pretrial mechanism. It
is evident from the 80 observed cases.
Seventy seven cases are using legal
counsels, while only 3 of them that are
not.26 Based on this fact, the lawyer’s
availability problem,27 will also affect in the
implementation of the SPPA Law. It can be
interpreted that the coercive action
authority from the law enforcers are not
accompanied with proper oversight and
complaint mechanism, and the SPPA Law
does not prioritize child’s interest in terms
of deprivation of liberty.
The 1997 Law obliges all parties to be
present during the judicial proceedings.
Article 55 of the 1997 Law stated that, “For
cases fall under Article 1 (2), the
prosecutor, legal counsel, social advisor,
parents, guardian, and witnesses, must be
present during the judicial proceeding”.28
The SPPA Law also gives the same
explanation in this matter, by elaborating
the responsibility of the parents, legal
guardian, social advisor, legal counsel,
professional social worker, and social
welfare worker. Specific to legal aid in
every stages, a child must have the legal
aid and accompanied by the social advisor
or other advisor pursuant to the laws and
regulations.29 However, as stated under the
elucidation of Article 56 (1) of KUHAP, the
appointment of a lawyer will be adjusted
with the situation of the availability of
lawyers, and it will be noted as the SPPA
Law does not state this exception.
The SPPA Law states that the judge, during
the judicial proceeding, must order the
parents/legal guardian, legal counsel, and
social advisor to accompany the child.30 If
he parents/legal guardian is not present,
the judicial proceeding will be continued
with the presence of the legal counsel and
social advisor.31
Two aspects must be noted regarding the
abovementioned provision. Firstly, the
presence of parents/legal guardian is
optional, and without which the judicial
proceeding can be continued. Secondly, the
presence of legal counsel can be replaced
by social advisor. In other words, there is
contradiction under the SPPA Law, as the
presence of a legal counsel is mandatory,
but it can be replaced by the social advisor.
Based on the current practice, ICJR sees
that half of the children are escorted with
their family.32 The provision that gives a
burden to the social advisor is the reason
why accompaniment from the social
advisor is more active, where 70 percent of
the cases are accompanied by the social
advisor.33 At present, the quality of the
lawyers is under the spotlight, as Indonesia
is focused on the availability of lawyers.
Fact also shows that the number of lawyers
in child cases is very limited.34 Meanwhile,
from the defense side, there are many
cases in which the legal counsels are not
delivering proper defense.35
The minimal access to legal aid is also a serious problem. Based on the research
conducted by non-governmental organizations regarding the Legal Aid Law, there are
310 registered legal aid organizations, with a potential 4.020 cases that can be handled
using the legal aid scheme in a year.36 Based on the Directorate General of Corrections,
the number of convicted and detainees in Indonesia reached 161.342 individuals. From
that number, 52.814 are detainees, with 148 children detainees, and 27.070 detainees
that yet to obtain legal aid. This data is coming from 23 provinces, and the actual
number could be greater.37 Referring to the data, legal assistance for children is also
becoming problematic.
Pursuant to the abovementioned data and facts, a more serious problem lies on the
quality of lawyers/legal counsel. The SPPA Law has underlined this problem, by
incorporating the provision that a child is entitled to legal aid and any other effective
aid.38 The word “effective” means that it is related to the quality of the lawyer’s defense.
However, the obligation to provide optimum defense is not regulated under the SPPA
Law.
The provisions that are not too different between the 1997 Law and the SPPA Law will not
change the data that much. The obligation to accompany a child perpetrator during the
judicial proceeding (both under the 1997 Law and the SPPA Law), is not strong when
there are so much exceptions under the law. There is hope under the SPPA Law, in which
the obligation to accompany a child that must be satisfied by the law enforcers,
otherwise the whole process will be null and void.39
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Notes 1 Hukumonline.com, “Presiden Sahkan UU
SPPA”,
http://www.hukumonline.com/berita/baca/lt50
2b5a2e76ef3/presiden-sahkan-uu-sppa
2 ibid
3 Vivanews, “8 Isu Krusial dalam UU Sistem
Peradilan Anak”,
http://politik.news.viva.co.id/news/read/33234
8-8-isu-krusial-di-uu-sistem-peradilan-anak
4 Ibid
5 Hukumonline.com, “Revisi UU Perlindungan
Anak Kedepankan Diversi”,
http://www.hukumonline.com/berita/baca/lt4b
a394c5b732f/revisi-uu-perlindungan-anak-
kedepankan-diversi
6 One of the challenges in diversion is related
to drug abuse case. For drug users, it has been
regulated under the Supreme Court Circular
Letter No. 4 of 2010 and No. 3 of 2011, they
are considered as victims and not perpetrator.
However, law enforcers are often using Article
111 and 111 of the Narcotics Law that separate
the category possessing, owning, and storing
narcotics. Consequently, many narcotic users
are subject to 7 years of imprisonment, and
categorized as serious crime. Based on the
research conducted by ICJR and the Institute
for Study and Advocacy for Judicial
Independence (LeIP), the implementation of
Supreme Court Decisions during 2012 from 37
cases, Article 112 (1) of the Narcotics Law is
the most used provisions, followed by Article
111 (1) and Article 127
7 Erasmus Napitupulu and Sufriadi Pinim, Studi
Atas Praktik-Praktik Peradilan Anak di Jakarta,
ICJR, Jakarta, 2013, p. 38 – 39.
8 Article 7 (2) (b), SPPA Law.
9 Article 9 (2), SPPA Law.
10 Article 30 (2) and (3), SPPA Law.
11 Supriyadi W. Eddyono, Komentar Atas
Pengaturan Penangkapan Dalam Rancangan Kuhap, ICJR, Jakarta, 2013, pg. 5.
12 Ibid.
13 Supriyadi W. Eddyono, et.al, Praperadilan di
Indonesia : Teori, Sejarah dan Praktiknya,
ICJR, Jakarta, 2013, pg. 45.
14 As stated under Articles 282 (3), 296, 335
(1), 351 (1), 353 (1), 372, 378, 379 a, 453,
454, 455, 459, 480 and 506 of KUHP; Articles
25 and 26 of Rechtenordonantie (lastly amend
by Staatsblad No. 471 of 1931); Articles 1, 2,
and 4 of Immigration Crime Law (Law No. 8
Drt/1955); Articles 36 (7), 41, 42, 43, 47 and
48 of Law No. 9 of 1976 on Narcotics. Law No.
6 of 2011 on Immigration under Article 109,
suspect or defendant that committing
immigration crime under Articles 118, 119,
120, 121, 122, 123, 126, 127, 128, 129,
131,132, 133 (b), 134 (b), and 135 may be
detained.
15 Supriyadi W. Eddyono, et.al, Praperadilan di
Indonesia... op. cit., pg. 46.
16 Ibid
17 Ibid
18 Article 32 (3) of the SPPA Law states:
“Detention requirements under sub-paragraph
(2) must be explicitly stated under the
detention warrant”
19 Supriyadi W. Eddyono, et.al, Praperadilan di
Indonesia... Op. Cit., pg. 47.
20 Ibid
21 Ibid, pg. 96. See also the 2012 RKUHAP
Academic Draft, pg. 14. Stephen C. Thaman
says that promptly must be construed as 2 X
24 hours or a couple of days, except for
terrorism. Similar argument also proposed by
Schaffmeister and N. Keijzer on November
2007.
22 From 80 cases that are analyzed, only two
of them that are granted. See Supriyadi W. Eddyono, et.al., Praperadilan di Indonesia...
Op. Cit., pg. 83. 23 Ibid
24 Ibid, pg. 80 – 81.
25 Erasmus Napitupulu and Sudriadi Pinim, Studi Atas Praktik-Praktik... Op. Cit, pg. 14.
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International License
26 Supriyadi W. Eddyono, et.al, Praperadilan di Indonesia... Op. Cit., pg. 61.
27 See No. 5, regarding Accompaniment, Access
to Lawyers, and Minimum Legal Aid. 28 Article 1 (2) of the 1997 Law States that:
Delinquent Children are: a. Children who
committing a crime; or b. Children who
committing an action that is prohibited for
Children, as stipulated under the laws and
regulations or the living law of the respective
society”. 29 Article 23, SPPA Law.
30 Article 55 (1), SPPA Law.
31 Article 55 (2), SPPA Law
32 Erasmus Napitupulu and Sudriadi Pinim,
Studi Atas Praktik-Praktik... Op. Cit., pg. 32.
From 115 cases, only 63 of them that are
accompanied by their family and 52 of them
are not.
33 Ibid. From 115 cases, 83 of them are
accompanied by the Social Advisor, 32 cases
are not.
34 Ibid, pg. 35. From 68 cases, only 1 of them
in which the legal counsel file a reply to the
prosecutor’s conviction.
35 Ibid, pg. 33 – 35. From the defense side, out
of 68 cases, there are 22 cases in which the
legal counsel are not giving any defense. It is
also clear from the decision, stating that “none
or the legal counsel did no file a defense”, or
the defense was done by the Child himself. If
there are 22 cases in which no legal counsel
filed the defense, there are 46 cases in which
the legal counsel file a defense, with verbal
defense dominating (27 cases), compared to
written defense (19 cases).
36 Kontras, et.al., Bantuan Hukum Masih Sulit
Diakses : Hasil Pemantauan Di Lima Provinsi
Terkait Pelaksanaan Undang-Undang No. 16
Tahun 2011 Tentang Bantuan Hukum, KontraS,
PSHK dan AIPJ, Jakarta, 2014. Available at
http://kontras.org/buku/Bantuan%20Hukum%
20Masih%20Sulit%20Diakses%20Email.pdf
37 Ibid
38Article 3 (c), SPPA Law
39 For instance, under Article 40 (2) of the
SPPA Law, under the condition that the official
si not notifying the Child and his parents/legal
guardian on right to legal aid, the arrest or
detention will be null and void.
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SSPPPPAA GGoovveerrnnmmeenntt RReegguullaattiioonn DDrraafftt:: SSoommee CCrriittiiccaall IIssssuueess
When Law No. 11 of 2012 on Juvenile
Justice System (SPPA Law) was passed on
30 July 2012, the government has
homework to do. ICJR has noted that the
government must issue six governmental
regulations (peraturan pemerintah – PP),
and 2 presidential regulations (peraturan
presiden – Perpres) to implement the SPPA
Law.
However, the government’s response is too
slow. The said implementing regulations
just about to be drafted near 30 July 2014,
when the SPPA Law entered into force. The
two years transitional period that should be
used effectively, is not optimized by the
government.
From the formal perspective, there is
nothing wrong with it, as the government
still has another year–until 31 July 2015—
to finish all technical regulation. However,
the implementation of the SPPA Law will be
more difficult if the necessary technical
regulations are not in existence to assure
the protection for the rights of children in
contact with the law (anak-anak yang
berhadapan dengan hukum – ABH).
The government is obliged under the SPPA
Law to issue six governmental regulations
and two presidential regulations. Until
November 2014, the related implementing
regulations are yet to be issued.
In 2013, the Ministry of Law and Human
Rights, as well as the Ministry of Women
Empowerment and Children Protection, has
initiated the early draft of the necessary PP
and Perpres through the Committee of
Inter-Ministry and non-ministry.1 The Draft
PP on SPPA Law Implementing Regulation
(RPP SPPA).
The latest accessible version of RPP SPPA is dated 9 May 2014, covering 164 articles in
10 chapters, incorporating Diversion, Requirements and Procedures In Decision-Making
Process and Educational Development and Assistance Program; Guidelines for Registering
Cases; Forms and Procedures in Imposing Punishment; Forms and Procedures to Impose
Non-Custodial Measures; and Coordination, Monitoring, Evaluation, and Reporting.
The question remains, how far RPP SPPA can accommodate the provisions under SPPA
Law, so that the SPPA Law can be well-implemented.
No. SPPA Law Implementing Regulations
1. Article 15 PP on the guidelines for the process, procedures, and coordination of Diversion
2. Article 21 (6) PP on the requirements and procedures of decision-
making process, as well as educational program, development, and assitance for children under 12 years
of age who committing crime.
3. Article 25 (2) PP on the guidelines to register cases
4. Article 71 (5) PP on the form and procedures of punishment.
5. Article 82 (4) PP on Non-Custodial Measures that may be imposed to
childred.
6. Article 94 (4) PP on the procedures of coordiation, oversight,
evaluation, and reporting.
7. Article 90 (2) Perpres on the Victim and Witness’ Rights
8. Article 92 (4) Perpres on the integrated education and training for law enforcers and related parties
About ICJR
Reformation of law and criminal justice system towards a democratic direction is one of the
crucial issues faced by Indonesia during the current transition era. Institute for Criminal
Justice Reform (ICJR), having established in 2007, commits to take the initiative to support
measures in realizing the proposed reformation. ICJR is formed with an exclusive mission
to support collective actions in honoring the Rule of Law and realizing criminal justice
system with strong human rights protection character.
The Ministry of Law and Human Rights, as
well as the Ministry of Women
Empowerment and Children Protection, has
initiated the early draft of the necessary PP
and Perpres through the Committee of
Inter-Ministry and non-ministry in 2013.2
The government even continued the
process in drafting RPP SPPA during 2014
supported by the Indonesian Commission
for Child Protection (Komisi Perlindungan
Anak Indonesia – KPAI). Even though there
were initiative from non-governmental
organizations that giving inputs and
recommendation to the Government,3 the
discussion process still not publicly open
1. Lack of Participation under RPP SPPA
and did not invite the participation from
other related stakeholders, including the
society. The government did not announce
any official publication regarding RPP SPPA
to obtain inputs from the public.
From the available sources, there are two
version of RPP SPPA that currently
discussed: the whole integrated draft and
separated RPP SPPA.4 The sources also said
that RPP SPPA has actually been finalized
and about to be signed by President Susilo
Bambang Yudhoyono before his term ends.
However, due to pros and cons and many
debates, RPP SPPA is failed to be finished.
No. CHAPTER TOPICS ARTICLES
1. Chapter I General Provisions Article 1
2. Chapter II Guidelines in Implementing Diversion Process Articles 2-48
3. Chapter III Requirements and Procedures in Decision-
Making Process, as well as Educational, Development, and Assistance Program
Articles 49–68
4. Chapter IV Guidelines for Registering Cases Articles 69–89
5. Chapter V Forms and Procedures in Imposing Punishment Articles 90–124
6. Chapter VI Forms and Procedures in Imposing Non-Custodial Measures
Articles 125–136
7. Chapter
VII
Funding Articles 137–156
8. Chapter VIII
Coordination, Monitoring, Evaluation, and Reporting
Article 157
9. Chapter IX Transitional Rules Article 158
10. Chapter X Closing Provisions Pasal 159 – Pasal
164
RPP SPPA5 that is currently discussed by
the government consists of 164 articles,
divided into 10 chapters. Chapter I
stipulates general provisions, while Chapter
II and the following chapters stipulate
Guidelines for Diversion; Requirements and
Procedures for Decision-Making Process as
well as Educational, Development, and
Assistance Program; Guidelines in
Registering Cases; Forms and Procedures
in Imposing Punishment; Forms and
Procedures in Imposing Non-Custodial
Measures; Coordination, Monitoring,
2. General Content of RPP SPPA
Evaluation, and Reporting; Funding;
Transitional Rules; and Chapter X about the
Conclusion.
The SPPA Law does not stipulate how many
RPP SPPA that must be issued, but only
stating that RPP SPPA must regulate 6
topics. The government chose to integrate
the whole topics into a single RPP SPPA, so
that all topics will be related and
harmonized. This is the basis of
government argumentation to integrate the
topics into a single RPP SPPA.
3. The Concept of Diversion for Child’s Interest is
not Proportional
The SPPA Law has incorporated the purpose of Diversion, and being
restated under RPP SPPA. Diversion aims to:6 reaching settlement
between the victim and the Child; out-of-court settlement; preventing
the Child from deprivation of liberty; encouraging the public to
participate; and to put responsibility to the Child. Provisions on the
purpose of Diversion will affect the basis and respective framework,
and will also affect the direction of further technical regulation.
The United Nations Standard Minimum Rules for the Administration of
Juvenile Justice (The Beijing Rules), United Nations Resolution 40/33,
dated 29 November 1985, paragraph 11.17 gives the authority to the
law enforcers so that they will handle the cases involving children
without having to undergo judicial process at the court. This
authorization aims to transfer the cases involving children outside the
court, as the main objective of Diversion is protecting the child from
punishment and other negative impact from the formal judicial
process.8
In broader scope, which is the Juvenile Justice System (SPPA),
Paragraph 5.1 of the Beijing Rules,9 states that the child’s well-being is
the main issue. While the next issue is to proportionally put the
process, not merely highlighting the violation committed, but also the
personal situation of the child. The Proportionality Principle will test on
how significant the bargaining position of a child under the SPPA,
particularly regarding the Diversion process.
The Diversion process is organized amicable, with the involvement of
the Child and his parents/legal guardian, victims, or child victim and/or
his parents/legal guardian, correctional officer (Pembimbing
Kemasyarakatan – Bimas), and professional social worker, using the
restorative justice approach.10 Furthermore, Article 4 (2) states that
the amicable process may involve the social welfare worker and/or the
public. Diversion must consider the interest of the victim or child
victim, child’s well-being and responsibility, preventing negative
stigma, preventing revenge, society’s harmony, and public order.11 To
put the child and victim under such situation shows that the design of
Diversion process under RPP SPPA does not provide proportionality
between the child and victims, in which the State fully delegate the
decision regarding Diversion to the negotiation process.
Editor in Chief:
Ifdhal Kasim
Managing Editor
Anggara
Wahyudi Djafar
Editorial Board:
Adiani Viviana
Adi Condro Bawono
Anggara
Erasmus A.T. Napitupulu
Indriaswati D.
Saptaningrum
Robert Sidauruk
Sriyana
Supriyadi W. Eddyono
Syahrial M. Wiryawan
Wahyudi Djafar
Wahyu Wagiman
Zainal Abidin
4. Diversion Requirements Do Not Consider Judicial Practice
Article 3 (1) of the RPP SPPA stated that
investigators, prosecutors, and judges are
obliged to prioritize the Diversion process
in handling cases involving child. The
Diversion is conducted for the following
crimes:12
a. Subject to imprisonment less than 7
years; and
b. Not a crime that has been committed
previously.
The categorization of crimes under RPP
SPPA is just restating Article 7 (2) of the
SPPA Law. The RPP SPPA does not answer
the question regarding how about a child
who is convicted of committing a crime
subject to less than 7 years of
imprisonment, covering subsidiary,
alternative, accumulative, and combination
conviction? RPP SPPA must refer to
Supreme Court Regulation on Diversion,
which allows a broader Diversion.13
An example is evident from narcotic cases.
Indictment for narcotic users is using
subsidiary, alternative, cumulative, and
combination between Articles 111-112 of
the Narcotics Law14 with Article 127 (1) of
the Narcotics Law.15 The tendency in using
Articles 111-112 of the Narcotics Law and
127 (1) of the same law that is combined,
will affect the decision to use Diversion if
both articles are imposed to the child.16
Article 127 (1) of the Narcotics Law
satisfies the Diversion requirements,
however Articles 111-112 of the Narcotics
Law does not. This must be stipulated
further under RPP SPPA.
This work is licensed under a Creative Commons Attribution 4.0
International License
The most crucial point from Diversion, which is preventing a child from judicial proceeding
at the court, will be more evident from Diversion without victim’s approval under the
SPPA Law.17 This is allowed for violations, petty crimes, victimless crime, or the value of
the victim’s loss does not exceed the local provincial minimum wage.18
RPP SPPA also incorporates Diversion without victim’s approval. However, the provisions
do not solve the questions arised from the SPPA Law. Provision regarding Diversion
without victim’s approval is only incorporated on three articles under RPP SPPA.19
Diversion without victim’s approval will only be organize during investigation.20 The first
question arises when there is a problem during indictment state, and the indictment
becomes broader and not merely consists of crime that may fall under Diversion without
victim’s approval, but also combining or indicting with the crime that is not subject to
Diversion without victim’s approval. RPP SPPA does not stipulate these technical issues.
5. Problematic Issues in the Diversion without Victim’s Approval
If the Diversion fails, how the case will be handled? Article 13 of the SPPA Law states that
the judicial proceeding will be continued if the Diversion fails to reach a settlement, or the
settlement is not executed. It will be problematic when the SPPA Law or RPP SPPA are not
stipulating the follow up mechanism for Diversion without victim’s approval. This is
evident from the Supreme Court Regulation on Diversion that merely stipulate Diversion
during judicial proceeding, and does not stipulate the Diversion without victim’s
approval.21
RPP SPPA does not provide detailed mechanism in determining crimes that subject to
Diversion without victim’s approval, specifically for the crime causing loss that does not
exceed the local provincial minimum wage. Previously, the same topic has been regulated
under the Supreme Court Regulation No. 2 of 2012 on Settlement of Petty Crimes and
Fines under KUHAP, and it must be included under RPP SPPA, so that the investigator
during the early stage of investigation may report the statement on how much the loss
suffered by the victim. The provisions under RPP SPPA must also in conform with
Supreme Court Regulation No. 2 of 2012 regarding the value of loss suffered by the
victim, in which the provision under RPP SPPA may not causing losses to the child in
region that has lower minimum wage than what is stipulated under Supreme Court
Regulation No. 2 of 2012.
“If the Diversion fails, how the case will be handled?”
Lawyers are the important part under
SPPA. The SPPA Law gives clear order
regarding accompaniment for ABH, by
stating that the person that accompany a
child during the judicial process is someone
who can be trusted.22 One of the persons is
lawyer or other legal counsels.23
Even before the examination, i.e. during
arrest and detention for the examination,
the Official that execute arrest or detention
must notify to the Child and parents/legal
guardian about the right to legal aid.24 If
the official fails to notify, the arrest or
detention will be null and void.25 Specific to
legal aid, a Child is entitled to legal aid at
every stage of examination, being
accompanied by the Corrections Officer or
other person according to laws and
regulations.26
A proper provision under the SPPA Law,
then degraded/implemented by RPP SPPA
on Diversion process. Article 13 (3) states
that the Diversion involves the investigator,
Article 119 (1) of the RPP SPPA states that
imprisonment will be imposed if the child
committed serious crime, or a violent
crime. The term “serious crime” must be
elaborated, as Indonesian criminal law
does not acknowledge such crime. In some
other countries, a crime that makes a child
must undergo formal judicial proceeding is
a crime that causing death or severe
injury.28
6. Access to Lawyers are Not
Prioritized child and his parents/legal guardian,
victims and his parents/legal guardian,
Bimas, and professional social worker.
Lawyer or legal counsel may be involved “if
necessary”.27 The use of term “if
necessary” is a degradation of urgency and
a form of limiting the rights of child in
accessing legal assistance. The follow up
problem is who will evaluate the “if
necessary” aspect. It is possible that RPP
SPPA violate the rights of children.
7. Indonesian criminal law does
not acknowledge serious
crimes
Litmas under the SPPA Law has an
important role, as it will inform the
personal condition of a child, his
relationship with the family, environment,
and other topics. Litmas has the important
role to influence the decision rendered by
the judge.29 Under RPP SPPA, the level of
criminal act, personal situation when the
criminal act is committed, will be
considered by the judge to sentence the
child or imposing non-custodial measures,
by taking into account the aspect of justice
and humanity.30 The consideration may
come from the Litmas result.31
To make sure that the judge will use
Litmas for the decision, there must be an
obligation for the judge to give comment
on Litmas and use Litmas as the legal
consideration. Article 93 (1) of RPP SPPA
states that rendering a decision is the full
authority of a judge, including the
determination of place to execute the
punishment, by considering Litmas. Even
so, the provision to consider Litmas must
be explicitly stated, not merely as the
source of consideration, but as the basis of
the consideration.
8. Unclear Provision on Public
Research (Penelitian
Masyarakat – Litmas)
Article 93 (3) of RPP SPPA states that the
Court must give the copy of decision no
later than 5 days after the decision is read
to the child or lawyer/legal counsel, Bimas,
and prosecutor. The copy of decision has
an crucial role for the child. Not that in
addition to be quick, it also must be
provided at no charge.
In practice, however, the Supreme Court
argued that the courts, especially court at
the first instance (district courts) cannot do
this obligation due to problems in funding.
To resolve the issue, the Supreme Court
passed Circular Letter NO. 1 of 2011 on the
Amendment to Circular Letter No. 2 of
2010 on Delivery of the Copy of Decision.32
In addition to that, the Circular also made
an adjustment with the PP No. 53 of 2008
on Type and Tariff of Non-Tax State
Revenue at the Supreme Court and Judicial
Institutions. The Circular states that the
delivery of copy of decision is categorized
as registrar rights, and will be charged at
IDR 300 per page.33 This problem should
be addressed by RPP SPPA, by stating that
the copy of decision must be delivered in
timely manner, which is 5 days after it is
read, and can be given at no charge.
The direct impact that must be dealt if the
decision is late in delivery, is overstaying at
detention house, where the convicted
should be released or expelled. A research
from the Center for Detention Studies
(CDS) at 11 correctional facilities in 5
provinces, shows that the cause of
overstaying is the lateness in delivering the
decision and executing the decision.34
9. Provisions on Quick and No-
Charge for Obtaining Copy of
Decision)
Article 96 of RPP SPPA states that a crime
that can be imposed to a child are primary
and additional punishment. Additional
punishment under Article 96 are:35
a. Seizing the profit gained from criminal
act; or
b. Fulfilling customary obligation (kewajiban
adat).
Additional punishment in form of
customary obligation may be imposed by
the judge by considering the living law at
the location the Child is domiciled.36 As a
side note, the fulfillment of local customary
obligation or the obligation according to the
living law, should be the main punishment,
if the act is considered as a criminal act
according to the local law.37
The fulfillment of local customary obligation
or the obligation according to the living
law, can be replaced with work training or
financial compensation, if the customary
obligation is not fulfilled by the Child.38
However, which party that will evaluate
whether or not the Child is not fulfilling
such obligation? Also, how proportional it is
for a child to undergo such punishment?
RPP SPPA does not elaborate further on
this issue.
11. Customary obligation
(kewajiban adat) as primary
or additional punishment?
Under Article 129 (2) of RPP SPPA, non-
custodial measures may be filed by the
prosecutor, unless the crime is subject to 7
years of imprisonment (minimum). Similar
to Diversion, RPP SPPA does not answer
about child who is indicted with crime
subject to less than 7 years of
imprisonment, covering subsidiary,
alternative, accumulative, and combination
with crime that is subject to 7 years of
imprisonment.39
Secondly, Artice 128 (2) of RPP SPPA
states that the decision to use non-
custodial measure is the authority of the
judge, including the determination of the
place and implementation of the measure,
by considering Litmas from Bimas.
Underlining that the decision in using non-
custodial measure as the authority of the
judge is sufficiently good, as in practice,
the judge will use the indictment from the
prosecutor, who rarely requesting non-
custodial measures, even though it is
mandated under the laws and regulations,
such as in narcotic cases,40 for
rehabilitation measure.41 Judge must have
the special authority to make decision by
taking into account the child’s condition
and situation,42 and should not rely on
prosecutor, for the interest of the child.
10. Forms and Procedures in
Imposing Non-Custodial
Measures
RPP SPPA is an important regulation to maximize the
implementation of the SPPA Law. Without a proper regulation at
the level of technical regulations, the implementation of the
SPPA Law will not in line with its objective. RPP SPPA is yet to
answer the problems under the SPPA Law, and some of its
provisions must be strengthened.
The government must accelerate the drafting process of RPP
SPPA, with a more open and participative approach. The current
process, which is closed and lack of involvement from the public
must be improved. The government must also officially published
RPP SPPA, so that the public may give comprehensive inputs and
recommendation for the regulation.
12. Conclusion
ICJR
Jl. Cempaka No 4,
Pasar Minggu, Jakarta
Selatan
Jakarta – Indonesia
12530
@icjrid
http://icjr.or.id
This work is licensed under a Creative Commons Attribution 4.0
International License
1 Andrie Amoes, Paper, Pendelegasian Undang-Undang SPPA dan Penyusunan Peraturan Pelaksanaannya, Kemnhukham, 2014.
2 Andrie Amoes, Paper, Pendelegasian Undang-
Undang SPPA dan Penyusunan Peraturan Pelaksanaannya, Kemnhukham, 2014.
3 YPI Bahas Rancangan Peraturan Pelaksanaan UU No. 11 Tahun 2012, see
http://republiknews.com/ypi-bahas-rancangan-peraturan-pelaksanaan-uu-no-11-tahun-2012/
4 ICJR had confirmation that there were two versions of RPP SPPA from the Government,
and both of which are difficult to obtain. ICJR only succeeded in obtaining one version dated
9 May 2014, consists of Diversion; Requirements and Procedures in Decision-Making Process, as well as Educational,
Development, and Assistance Program; Guidelines for Registering Cases; Forms and
Procedures in Imposing Punishment; Forms and Procedures in Imposing Non-Custodial Measures; and Coordination, Monitoring,
Evaluation, and Reporting.
5 ICJR obtained RPP SPPA version dated 9 May 2014 6Article 6, SPPA Law; and Article 2, RPP SPPA 7Paragraph 11.1, The Beijing Rules: Consideration shall be given, wherever appropriate, to dealing with juvenile offenders
Notes
without resorting to formal trial by the
competent authority
8The Models for Change Juvenile Diversion
Workgroup, Juvenile Diversion Guidebook, Models for Change, US, 2011, pg. 11 9Paragraph 5.1, The Beijing Rules: The juvenile justice system shall emphasize the well-being of the juvenile and shall ensure that any
reaction to juvenile offenders shall always be in proportion to the circumstances of both the
offenders and the offence. Commentary : Rule 5 refers to two of the most important objectives of juvenile justice. The first objective
is the promotion of the well-being of the juvenile. This is the main focus of those legal
systems in which juvenile offenders are dealt with by family courts or administrative authorities, but the well-being of the juvenile
should also be emphasized in legal systems that follow the criminal court model, thus
contributing to the avoidance of merely punitive sanctions.
10 Article 4 (1), RPP SPPA
11 Article 5, RPP SPPA 12 Article 3 (2), RPP SPPA 13 Article 3, Supreme Court Regulation on
Diversion.
14 The difference between Article 112 (1) and 111 (1) is the type of narcotics, which is plant-
based and non-plants. Both articles are subject to 4 years of imprisonment (minimum) and 12
years of imprisonment (maximum), with fine amounting to IDR 800 million (minimum) and
IDR 8 billion (maximum). Article 111 (1) of the Narcotics Law states that “Any person that without right or against the law planting,
maintain, possess, store, control, or provide Narcotics Category I in the form of plants, shall
be punished with minimum imprisonment of 4 (four) years and a maximum of 12 (twelve) years and a minimum fine Rp 800.000.000,00
(eight hundred million rupiah) and maximum Rp 8.000.000.000,00 (eight billion rupiah)”.
Meanwhile, Article 112 (1) of the Narcotics Law states “Any person that without right or against the law possess, store, control, or provide
Narcotics Category I which is not a plant, shall be punished with minimum imprisonment of 4
(four) years and a maximum of 12 (twelve) years and a minimum fine Rp 800.000.000,00 (eight hundred million rupiah) and maximum
Rp 8.000.000.000,00 (eight billion rupiah)”. 15Article 127 of the Narcotics Law states “Every abusers: a. Narcotics Category I for themselves shall be punished with imprisonment of 4 (four)
years; b. Narcotics Category II for themselves shall be punished with imprisonment of 2 (two)
years, and c. Narcotics of category III for themselves shall be punished with imprisonment of 1 (one) year”.
16According to ICJR’s research, prosecutor
intends to use Article 111 and 112 of the Narcotics Law against a narcotic user. Both articles are easier to be proven, compared to
Article 127 of the Narcotics Law, which mandates that a person must be proven as a
user and consider other issues, instead of merely relying on possession of narcotics.
Furthermore, criminal punishment for Article 111 and 112 (4 years minimum and 12 years
This work is licensed under a Creative Commons Attribution 4.0
International License
maximum), is different with Article 127, which is subject to 4 years of imprisonment (maximum) for Narcotics Schedule I.
Prosecutor often knows that the respective person is a narcotic user, but fails to include
Article 127 (1) of the Narcotics Law. The phrase “own, store, and possess” under Article
111 and 112 make these articles as the “basket”. Therefore, Supreme Court Justices assert that the use of Article 111 and 112 must
be related to what intention, as a narcotic user inevitably “own, store, and possess”. See ICJR:
Problem Pasal 111 dan 112 UUNarkotika Terhadap Pengguna Narkotika, Harus Menjadi Perhatian Serius, available at
http://icjr.or.id/icjr-problem-pasal-111-dan-112-uu-narkotika-terhadap-pengguna-
narkotika-harus-menjadi-perhatian-serius/ 17Supriyadi W. Eddyono and Erasmus A. T.
Napitupulu, Prospek Implementasi... Op. Cit., pg. 14.
18Article 9 (2), SPPA Law. 19Articles 25, 26, and 27, RPP SPPA. 20Article 10 of the SPPA Law in conjunction with Article 27 of RPP SPPA. 21Supreme Court Regulation on Diversion does not state Diversion without victim’s approval.
This indicates that, if the Diversion without victim is settled at investigation phase and will not be continued at further stages, if it fails to
reach settlement.
22Article 1 (18), SPPA Law 23Article 3, SPPA Law, which shows that
accompaniment is the right for every child, including accompaniment from legal counsel,
and accompaniment during and after the judicial proceeding by social workers.
24Article 40 (3), SPPA Law
25Article 40 (2), SPPA Law 26 Article 23, SPPA Law 27 Article 13 (4), RPP SPPA 28 National Criminal Justice Reference Service,
Juvenile Offenders and Victims: 1999 National Report, pg. 106, available at
https://www.ncjrs.gov/html/ojjdp/nationalreport99/chapter4.pdf 29 Supriyadi W. Eddyono and Erasmus A. T. Napitupulu, Prospek Implementasi... Op. Cit.,
pg. 15. 30Article 9 (1), RPP SPPA
31Article 9 (2), RPP SPPA
32See PSHK, Jangka Waktu Pembuatan Putusan Hakim dan Hak Mendapatkan Salinan Putusan
Secara Cuma-Cuma, available at http://kuhap.or.id/jangka-waktu-pembuatan-
putusan-hakim-dan-hak-mendapatkan-salinan-putusan-secara-cuma-cuma/
33Ibid 34See Overstay Persoalan Penjara yang Harus Dipecahkan, available at
http://www.hukumonline.com/berita/baca/lt4dd09abac54a8/ioverstayi-persoalan-penjara-yang-harus-dipecahkan
35Article 98, RPP SPPA
36Article 123 (1), RPP SPPA 37Article 123 (1) and (2), RPP SPPA 38Article 123 (3), RPP SPPA 39See the discussion under the Guideline for
Diversion Process, Procedures, and Implementation
40Supreme Court Circular Letter No. 4 of 2010 was issued to implement Article 103 (a) and
(b) of the Narcotics Law, which gives guidelines for judges that handling narcotic cases, so that
they may (i) decide a narcotic user to undergo rehabilitation, if he is proven to commit the narcotic crime, and (ii) decide the narcotic user
to undergo rehabilitation if he is not proven guilty of narcotic crime.
41 ICJR has noted that from 32 court decisions regarding child cases in Jakarta Province during
2012, particularly the cases involving narcotics, only 6 decisions that directly implement the
policy to place drug addict and victims of drug abuse, as stipulated under the Supreme Court
Circular Letter No. 3 of 2011 and No. 4 of 2010. See Erasmus Napitupulu and Sufriadi Pinim, Studi Atas Praktik-Praktik Peradilan
Anak di Jakarta, ICJR, Jakarta, 2013, pg. 52. 42From the court decisions regarding child in Jakarta Province during 2012, prison indictment is the most-used punishment by the
prosecutor. There are 25 jail time indictment, and only 1 indictment that request for social
work. See Ibid, pg. 49.
This work is licensed under a Creative Commons Attribution 4.0
International License
This work is licensed under a Creative Commons Attribution 4.0
International License
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https://www.ncjrs.gov
Laws and Regulations
Law No. 8 of 1981 on Criminal Procedural Law
Law No. 3 of 1997 on Juvenile Court
Law No. 12 of 2005 on the Ratification to the International Covenant On Civil And
Political Rights
Law No. 35 of 2009 on Narcotics
Law No. 11 of 2012 on Juvenile Justice System
Presidential Decree No. 36 of 1990 on the Ratification to the Convention on The Rights
of The Child
Supreme Court Circular Letter
Circular Letter No. 4 of 2010 on Placement of Narcotics Abuse, Victims of Narcotic
Abuse, and Narcotic Addict at the Medical and Social Rehabilitation
Circular Letter No. 3 of 2011 on Placement of Victims of Narcotic Abuse at the Medical
and Social Rehabilitation
Supreme Court Regulation
Regulation No. 2 of 2012 on Establishment of Petty Crime Limitations and Penalties in
the Criminal Code
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Background
The movement was started back in early
2014 by several human rights defenders,
who organized an unscheduled chitchat
discussing the government’s action that
just recently proposed a Draft Bill on
Criminal Procedural Law (Rancangan Kitab
Undang-Undang Hukum Acara Pidana –
RKUHAP). This circle felt that it is important
to inform the public regarding the
development of RKUHAP, while also
providing an opportunity for public
participation in RKUHAP discussion.
The circle of human rights defenders
studied and assessed every possible and
the most effective measure in providing the
information related to RKUHAP, and
creating a possible forum for the public so
that it may give a recommendation to the
policymakers.
Discussion at the House of
Representatives
When discussing a draft bill, the
government and the House of
Representatives (House) need the
involvement and active participation from
the public, in order to obtain
recommendation for every discussion
stage.
The House also has its own forum for public
participation, namely Hearing (Rapat
Dengar Pendapat – RDP) and Public
Hearing (Rapat Dengar Pendapat Umum –
RDPU). Both forums are used by the people
representatives to obtain inputs and
recommendation from the public regarding
a currently discussed draft bill. The
lawmakers are also optimizing meetings
and seminars throughout Indonesia.
The abovementioned mechanisms,
however, are limited in numbers and
expensive to organize; not to mention that
not every citizen has access to it. The
public will have difficulties in submitting
inputs, revision, and recommendation for a
legislation, due to some matters such as
distance, time barrier, and costs.
To overcome those problems, human rights
defenders are initiating a website called
pantaukuhap.id, to make it as a platform
for the public that want to give inputs
regarding RKUHAP. This website also
provides related information on the
development of RKUHAP .
Citizens that registered and having an
account at pantaukuhap.id may give
recommendations to many articles and
paragraph under RKUHAP. Afterwards, the
website will submit these petitions to the
House by means of electronic or print
media. In this case, the recommendation
from the public will be received by the
lawmakers and other related parties that
are involved in the RKUHAP discussion.
By involving many parties within the public
to monitor, supervise, and participate in
the RKUHAP discussion, Indonesia will have
a new hope to adopt a human rights-
friendly criminal justice system.
How to be involved?
The site pantaukuhap.id is a website that
aims to supervise and monitor the ongoing
discussion of RKUHAP, currently organized
by the House and government.
The website has two types of involvement
Involved by submitting
recommendations
Members must fill a registration form,
before they may submit a recommendation
or revision regarding KUHAP. Every
member will be verified, before the
administrator granted the “member”
status. This is necessary to prevent
anonymous account. As a member, you
may suggest recommendation and
commenting on various issues.
Supervising and commenting
If you only willing to giving comments, you
do not have to become a member, as long
as you have a facebook account.
About ICJR
Reformation of law and criminal justice system towards a democratic direction is one of
the crucial issues faced by Indonesia during the current transition era. Institute for
Criminal Justice Reform (ICJR), having established in 2007, commits to take the initiative
to support measures in realizing the proposed reformation. ICJR is formed with an
exclusive mission to support collective actions in honoring the Rule of Law and realizing
criminal justice system with strong human rights protection character.
Institute for Criminal Justice Reform
Jl. Cempaka No 4, Pasar Minggu, Jakarta Selatan
Jakarta – Indonesia 12530
@icjrid
http://icjr.or.id