Pros And Cons For The Implementation Of Restorative Justice, How To Give A Deterrent Effect To Children Who Are Conflicted With The Law?

Poster of rejection of sexual violence during the peaceful demonstration of Gadjah Mada University, the Emergency of Sexual Violence at the UGM Fisipol Campus, Sleman, DI Yogyakarta. (Between/Andreas Fitri Atmoko)

JAKARTA The application of restorative justice against children who are in conflict with the law (ABH) has become a polemic lately. The reason is, cases of crimes involving minors continue to increase from year to year.

In the last few weeks, netizens have been presented unpleasant news from Palembang, South Sumatra. A student who is still in junior high school, AA (13), died as a result of being raped and killed by four people who are also minors. The four perpetrators are IS (16), MZ (13), MS (12), and AS (12). After doing this barbaric thing, the four victims were even proud to tell their colleagues about their actions.

Apart from IS being the main suspects, three other suspects, namely MZ, MS, and AS, were not detained. They were placed in a social institution for the rehabilitation of Indralaya's legal problems children. Meanwhile, IS is languishing in the detention center of the Palembang Polrestabes.

In the midst of rampant cases of rape and murder in Palembang, the application of restorative justice for child perpetrators is in the spotlight. On the one hand, the application of restorative justice to ABH is considered unfair, especially if you look at victims who are also children. But on the other hand, a number of opinions state that the settlement of criminal cases with the concept of restorative justice is the most appropriate.

Quoting JFB & Partners of Indonesian Legal Consultant, basically children can be held accountable for their crimes if they are more than 12 years old and not 18 years old. This is in accordance with Article 1 paragraph (3) of the Child Justice System Law (SPPA).

Then Article 32 paragraph (2) of the SPPA Law states that the detention of children can only be carried out on condition that the child is 14 (fourteen) years old, or is suspected of committing a criminal act with the threat of imprisonment of seven years or more.

However, in solving criminal cases committed by children, it must prioritize the concept of restorative justice through diversion.

Restorative justice or restorative justice is an approach that involves all related parties but still focuses on a fair settlement and recovery or return to its original state.

The Director General of Human Rights (Dirjen HAM) of the Ministry of Law and Human Rights Dhana Putra also highlighted the trend of increasing ABH. Dhana admitted that the increasing number of criminal cases such as murder and sexual violence involving children raises questions about how to make the restorative justice approach to ABH run effectively.

He explained that in Indonesia, the new formal restorative justice is regulated through Law Number 11 of 2012 concerning the Juvenile Criminal Justice System. Formally, the regulation is a milestone for Indonesia's criminal justice paradigmistorative justice. Article 5 paragraph (1) of the SPPA Law states that the juvenile criminal justice system must prioritize a restorative justice approach.

Regarding the murder and rape case of AA in Palembang, the community is divided into two camps regarding the restorative justice approach. The first camp hopes that the perpetrators will receive the appropriate punishment, because the crimes they commit are beyond the reason of most people. But the other camp stated otherwise.

Forensic psychologist Reza Indragiri Amriel said that even in severe cases carried out by children, it could be restorative justice that is superior to litigation or dispute resolution through court channels. Reza explained a number of reasons to support the statement, which he realized was less popular with society at this time.

"In terms of time and budget efficiency, restorative justice costs are lower than litigation. This means that there is a possibility of massive savings being made for the state," said Reza.

Meanwhile, in terms of perpetrators, restorative justice has the benefits of reducing the chances of recidivism or the emergence of a person's criminal behavior. Finally, according to Reza, for victims, the possibility of getting compensation is greater when a compensation agreement is reached through restorative justice.

"Children who commit criminal acts and their resolutions are carried out by restorative justice, the level of recidivism is lower than children who are being processed for litigation," he explained.

Reza added, if every case is forced to be taken through litigation, then what happens then is a very severe collateral damage or damage. Because according to him, the litigation process is only open to disgrace and revenge.

"So no matter how sad we are, no matter how angry we are, we need to be given space for common sense to consider the careful application of restorative justice," Reza added.

Palembang Police Chief Harryo Sugihhartono emphasized that the four perpetrators committed acts consciously and in good health. Not only that, from the results of the examination of the police perpetrators, it was stated that the motive of the four of them for raping AA was because they wanted to channel their desires. The perpetrators are known to be addicted to pornographic content.

Clinical and forensic psychologist Kasandra Putranto emphasized that for actions whose legal sanctions reached seven years, of course, the principle of restorative justice cannot be applied, because the state is obliged to protect the public by ensuring the function of awareness of the mistakes made and the deterrent effect, even if the perpetrators are minors.

"If there is a legal sanction for rape, murder, it is necessary to see how the role of the four perpetrators in each series of events. Maybe from the first time you persuade, commit violence, rape, and murder. You have to look at the roles of each one to see legal sanctions that can be enforced," said Kasandra.

"Restorative justice has a limitation. When there is a certain behavior, is there a possibility of potential to be deterrent? If there is no (general effect) of course it must be protected against other communities, do not let it happen again because the perpetrators are not deterred," said Kasandra..