Fakultas Hukum, Universitas Lampung, Bandar Lampung, Lampung, Indonesia.
http://jurnal.fh.unila.ac.id/index.php/corruptio Volume 04 Issue 1, March 2023. PP: 1-12
P-ISSN: 2723-2573 E-ISSN: 2745-9276
The Purpose of Crimination Against Perpetrators and Victims in the Perspective of Restorative Justice
Hariyanto1, Oksep adhayanto2, Fihtriatus Shalihah3
1Universitas Ahmad Dahlan, Indonesia, 2207055012@webmail.uad.ac.id
2Universitas Maritim Raja Ali Haji, Indonesia, adhayantooksep@umrah.ac.id
3Universitas Ahmad Dahlan, Indonesia, fithriatus.shalihah@law.uad.ac.id
Article’s Information Abstract
keywords:
The Purpose Of Crimination; Legal Justice;
DOI :
https://doi.org/10.25041/corruptio.v4i1.2922
Indonesia implements a punishment system that refers to the absolute theory or theory of retaliation and retributive flow, namely the imposition of punishment is an absolute consequence that must exist as a retaliation to people who have committed crimes so that the basis for justifying the imposition of punishment lies in the existence of the crime itself. Restorative justice is in principle an approach that is used to resolve problems outside the court by mediation or deliberation in achieving justice expected by the parties. The purpose of this study is to provide an overview of the benefits of restorative justice in the criminal law enforcement process. This research is a type of normative legal research.
The approach method used is a statutory approach and a conceptual approach. Sources of research data are secondary data consisting of primary legal materials, secondary legal materials, and tertiary legal materials. The data were analyzed using a qualitative descriptive method. Based on the results of this study, the restorative justice approach is suitable as a punishment goal and is beneficial in reducing the accumulation of cases and the negative stigma of imprisonment. Restorative justice is the settlement of criminal cases involving perpetrators, victims, families of perpetrators/
victims, and other related parties to jointly seek a fair solution by emphasizing restoration to its original state, and not retaliation. Restorative justice is a subsystem of punishment where other subsystems are interconnected and work to achieve benefits. The principle of restorative Submitted: February 14, 2023; Reviewed: March 28, 2023; Accepted: April 3, 2023
justice is that victims get compensation for those who suffer losses, peace and agreements that can restore the victim's condition.
A. Introduction
Recently, criminal law has developed a discourse on the settlement of cases that addresses a crime considered reparable (using a restorative justice approach). This discourse is known as a paradigm of punishment in which the perpetrator is encouraged to repair the harm he has caused to the victim, his family, and the community. For that, the main program is “a meeting place for people” to find solutions to repair relationships and damage caused by the crime (peace).1
Indonesia implements a punishment system that refers to the fundamental theory or theory of retaliation and retributive flow, namely, the imposition of punishment is an absolute consequence that must exist as retaliation to people who have committed crimes so that the basis for justifying the imposition of punishment lies in the existence of the crime itself.
Although not all case settlements end with the imposition of punishment, the criminal imposition system is still one of the main forms of settlement in criminalization in Indonesia.
Along with the development of law, there is also a development in the mechanism of punishment which, in terms of considering punishment, victims must be an important part of the purpose of punishment.2 The development of criminalization makes the case settlement process a matter that must benefit all parties, especially the victim as the most disadvantaged party.
The concept of restorative justice is a process that involves all parties involved in a crime participating in solving the problem and its implications in the future. It is clear that not only the perpetrators must be considered but all parties involved must also be involved in resolving the case. In Indonesia, crimes such as theft, murder, rape, fraud, hoarding, and others still use a retaliatory approach against criminals who are considered to have damaged order.3 Offenders who are caught are examined by investigators and undergo trial. Most likely, the settlement process or the resulting output is that the person will go to prison or be released. In this regard, the correctional database system as of August 5, 2018 shows that the number of detainees and prisoners in all prisons and detention centers (Rutan) in Indonesia is 250,444 people. This figure is excessive considering that the ideal prison and detention center only holds 124,696 people.4
The data above shows that imprisonment causes prisons to become overcrowded but does not deter convicts and victims do not get any recovery from the perpetrators. In addition to being unfavorable to victims, imprisonment has a destructive impact on prisoners, namely the tendency for people who have served a prison term to have more difficulty adjusting to society and at the same time, are vulnerable to repeating crimes. The criminal system that emphasizes retaliation also causes recidivist offense, considering that the punishment is not oriented towards the perpetrator's recovery and the victim's interests.5
The criminal punishment system in the Criminal Code basically still maintains the retributive paradigm, which provides appropriate retribution for the crimes committed by the
1 Andi Hamzah, Hukum Pidana Indonesia (Jakarta: Sinar Grafika, 2017).
2 D R M Hatta Ali and M H SH, Peradilan Sederhana Cepat & Biaya Ringan Menuju Keadilan Restoratif (Bandung: Penerbit Alumni, 2022).
3 Kitab Undang-Undang Hukum Pidana.
4 Erlina Erlina, “Analisa Kriminologi Terhadap Kekerasan Dalam Kejahatan,” Al Daulah: Jurnal Hukum Pidana Dan Ketatanegaraan 3, no. 2 (2014).
5 Masruchin Ruba’i, Buku Ajar Hukum Pidana (Bandung: Media Nusa Creative (MNC Publishing), 2021).
perpetrators and still focuses on the prosecution of the perpetrators, has not paid attention to the recovery of losses and suffering of the victims lost due to crime. The retributive paradigm aims to provide a deterrent effect for perpetrators not to reoffend and prevent people from committing crimes.6 The retributive paradigm has not been able to recover the losses and suffering experienced by victims. Although the perpetrator has been found guilty and sentenced, the victim's condition cannot return to normal. With this weakness, the idea of a punishment system that is oriented towards restoring the victim and the victim's suffering called restorative justice, emerged because the victim is the party most harmed by the crime.7
The main goal of restorative justice is recovery, while the second goal is compensation;
the process of dealing with criminal acts through a restorative approach is a process of resolving criminal acts, which aims to restore conditions which include compensation for victims through certain methods agreed upon by the parties involved in it.8
This research is a type of normative legal research conducted to find legal regulations that the criminal code, legal principles, and legal doctrines to answer the legal issues faced to obtain arguments, theories or concepts. The approach method used is a statutory approach and a conceptual approach. Research data sources are secondary data consisting of primary legal materials, secondary legal materials, and tertiary legal materials. The data were analyzed using a qualitative descriptive method, namely explaining in detail the legal events that were the object of research and analyzed with theories, concepts, or legal principles as well as positive law using words that are easy to understand scientifically.
The novelty of this research is the restorative justice approach implemented by resolving cases through peaceful means or known as penal mediation. This research refers to previous research entitled "Application of Restorative Justice Principles in the Criminal Justice System in Indonesia" by Hanafi Arief in 2018. Implementing restorative justice concepts or approaches must be applied in Indonesia's integrated criminal justice system's structural, substantive and cultural aspects. This is important because if one of these components does not apply the concept or approach of restorative justice, therapeutic decisions are unlikely to be implemented.
B. Discussion
The state of Indonesia is: "the rule of law (rechtstaats), so everyone who commits a crime must be held accountable for his actions through a legal process. Law enforcement implies that a crime is an act that is prohibited by the rule of law, and the prohibition is accompanied by threats (sanctions) in the form of certain crimes as responsibility. In this case it has to do with the principle of legality; no action can be punished but has been regulated in law; whoever violates the prohibition and the prohibition has been regulated in law, then the perpetrators can be subject to sanctions or punishment, while the criminal threat is directed at the person who caused the incident, as a form of causality relationship between the act and the consequences arising from the perpetrator.
In addition to causing the accumulation of cases in many cases, especially those occurring in Indonesia, for example, the case of theft of flip flops that happened to AAL, the case of theft of dishes that happened to Rasminah, the case of theft of cocoa worth Rp. 2,500,000 that happened to Aminan, and the case of theft of randu fruit, the case of theft of watermelon and several other similar cases should not have been prosecuted and entered into court. This is because the judges' decisions in these and other similar cases have been widely criticized by the public as not fulfilling a sense of justice. The public considers that law enforcement
6 M Ali Zaidan, Menuju Pembaruan Hukum Pidana (Jakarta: Sinar Grafika, 2022).
7 Daffa Ladro Kusworo and Maghfira Nur Khaliza Fauzi, “Hybrid Restorative Justice: Optimizing Cessation Of Prosecution The Case Theft Through Restorative Judicial House,” Ius Poenale 3, no. 2 (2022).
8 H Suyanto, Hukum Acara Pidana (Bogor: Zifatama Jawara, 1982).
officials, in this case the police and prosecutors, should not have continued the case to court because it could have been resolved through settlement patterns agreed upon by both parties.
This becomes interesting to discuss considering that the nature of criminal law is ultimum remidium, which means that a last resort is taken when there are no other efforts to resolve the case. However, in its development, criminal law is used as the first effort to resolve a problem.
This shift in the function of criminal law shows that society has gradually left the culture of law.9
Based on this, in law enforcement in Indonesia today, law enforcement officials, especially police, prosecutors and judges as well as other law enforcement officials, should prioritize the principle of restorative justice. The emergence of the concept of restorative justice is due to dissatisfaction and frustration in many parts of the world towards formal criminal law and punishment which in fact often cannot answer problems in the criminal justice system which are considered no longer able to provide justice, protection of human rights, lack of transparency in handling criminal cases and public interests which are often ignored or increasingly not felt. Restorative justice aims to empower victims, perpetrators, families and communities to repair an unlawful act by using awareness and conviction as the basis for improving social life.10
The resolution of criminal cases with the approach or concept of restorative justice emphasizes more on the direct participation of the perpetrators, victims and the community in the case settlement process. In addition, restorative justice emphasizes the value of balance, harmony, harmonization, peace, tranquility, equality, brotherhood, and kinship in society rather than punishment or imprisonment. Efforts to resolve cases carried out in this way not only resolve the problems that arise but deeper than that, the concept of case settlement using a restorative justice approach is felt to provide a sense of justice for the community.11 Moeljatno states that criminal law is part of the overall law in force in a country, which provides the basics and rules for:
1. Determining actions that may not be carried out, which are prohibited, accompanied by threats or sanctions in the form of certain penalties for anyone who violates the prohibition;
2. Determine in what cases those who violate these prohibitions can be imposed or sentenced to punishment as has been threatened;
3. Determine in what way the imposition of punishment can be carried out if the person is suspected of having violated the prohibition”12
Based on the above opinion, one can be drawn an understanding that: “criminal law is a law that contains regulations that contain obligations and prohibitions against violators and regulates violations and crimes against the public interest, actions that are punishable by the punishment which constitutes suffering or torture, he further concluded that criminal law is not a law that contains new norms, but only regulates violations and crimes against legal norms regarding the public interest. The main purpose of the law, if it is to be reduced to one thing, in order. Order is the main and first goal of all laws. This need for order is the main (fundamental) condition for the existence of an orderly society.13
9 Muhammad Taufiq, “Penyelesaian Perkara Pidana Yang Berkeadilan Substansial,” Yustisia Jurnal Hukum 2, no.
1 (2013).
10 Ahmad Faizal Azhar, “Penerapan Konsep Keadilan Restoratif (Restorative Justice) Dalam Sistem Peradilan Pidana Di Indonesia,” Jurnal Kajian Hukum Islam 4, no. 2 (2019).
11 Lidya Rahmadani Hasibuan et al., “Restorative Justice Sebagai Pembaharuan Sistem Peradilan Pidana Berdasarkan UU No.11 Tahun 2012 Tentang Sistem Peradilan Pidana Anak,” USU Law Journal 3, no. 3 (2015).
12 Rahmanuddin Tomalili, Hukum Pidana (Sleman: Deepublish, 2019).
13 Safaruddin Harefa, “Penegakan Hukum Terhadap Tindak Pidana Di Indonesia Melaui Hukum Pidana Positif Dan Hukum Pidana Islam,” University Of Bengkulu Law Journal 4, no. 1 (2019).
Criminal imposition of a person deemed guilty according to criminal law, broadly speaking, can depart from the convict's past actions and for the benefit of the future. If it is based on past actions, the purpose of punishment is retaliation, but if it is oriented to future interests, then the purpose of punishment is to improve the convict's behavior.14 In countries adhering to Continental European Law, in general the purposes of punishment can be distinguished as follows:
1. Retaliation, compensation or retribution/absolute
2. Influence people's behavior for the protection of society.15
The absolute theory aims to satisfy those who hold grudges, both the community itself and those who are harmed or become victims (Ali, 2013)”. About the question of the extent to which punishment needs to be given to the perpetrators of crimes, the absolute theory explains as follows:
1. This punishment will satisfy the victim's feelings of revenge, both feelings of justice for him, his friends and family and the community. These feelings cannot be avoided and cannot be used as an excuse to accuse of not respecting the law. This type is called vindicative.
2. Crimes are intended to warn perpetrators of crime and other community members that every threat that is detrimental to others or benefits from others unnaturally, will receive their rewards. This type is called fairness.
3. Criminal is intended to show a comparison between the gravity of the offense and the criminal imposed. Included in this gravity category is the cruelty of the crime, or it can also include the abusive nature of the crime, whether committed intentionally or negligently. This absolute type is called proportionality.
The goal of absolute teachings is not simply revenge. The aims and objectives are sometimes more than ideal, for example about demonstrating the applicability of the law against those who violate it or restoring the balance of social forces which has been disrupted or the suffering of victims and other members of the community. The next theory is relative theory.
“In principle, this theory teaches that sentencing and its implementation must at least be oriented towards efforts to prevent convicts (special prevention) from the possibility of repeating crimes in the future, as well as preventing the wider community in general (general prevention) from the possibility of committing good crimes like the crimes that have been committed. And others. All of these sentencing orientations are in the context of creating and maintaining order in people's lives.16
The combined theory is another theory that is often used. “Theoretically, combined theory seeks to combine the ideas contained in absolute theory and relative theory. Apart from acknowledging that the imposition of criminal sanctions was held to avenge the actions of the perpetrators, it is also intended that the perpetrators can be corrected so that they can return to society. The emergence of the combined theory is basically a response to criticism leveled against both the absolute theory and the relative theory. The imposition of a crime on a person is not only oriented towards trying to repay that person's actions, but also so that there are efforts to educate or improve that person so that he does not commit crimes again which is detrimental and disturbs society.
In the states of adherents of the Anglo Saxon law, the theory of punishment is known, the theory of deterrence, the theory of paralysis and the theory of rehabilitation. Retribution is the
14 Zico Junius Fernando, “Pentingnya Restorative Justice Dalam Konsep Ius Constituendum,” Al Imarah: Jurnal Pemerintahan Dan Politik Islam 5, no. 2 (2020).
15 Muhaimin Muhaimin, “Restoratif Justice Dalam Penyelesaian Tindak Pidana Ringan,” Jurnal Penelitian Hukum De Jure 19, no. 2 (2019).
16 Barda Nawawi Arief, Bunga Rampai Kebijakan Hukum Pidana (Jakarta: Prenada Media, 2016).
oldest punishment theory in the history of human civilization based on the granting of rewards (retaliation) which is worth people who violate criminal law provisions. The earliest levy idea used the concept of personal retaliation where the victim or family gave the same retaliation to the perpetrator or his family for the loss suffered by the victim or his family.17
The next sentencing theory is the theory of deterrence, the term deterrence is a translation of the word "deterrence". The theory of deterrence has an assumption that: “humans are always rational and always think before acting in order to take the maximum rational benefit, which means that the prospects of profit and loss are weighed by decisions and choices calculatively.
Another assumption of deterrence theory is that evil behavior can be prevented if people fear punishment. Punishment for certain criminals or special deterrence, may be related to physical limitations or incapacity such as confinement or the death penalty. The function of criminal law in the context of deterrence is that the threat of punishment for an act is carried out as a deterrent.18
Incapacitation theory is an act of making a person unable to commit evil. If a crime perpetrator is put in prison for a criminal offense, it means that the community is protected from the next criminal offense that may be committed by the perpetrator for a period of time as long as he is imprisoned. The purpose of the paralysis is to protect the community by making perpetrators of crime that are harmful to incapable or helpless. Crimes are reduced by limiting the opportunity for criminals to commit more criminal acts. Criminal offenses for certain criminal offenses tend to the maximum limit that is considered and felt dangerous for the community.19
Incapitation in another form is the revocation of the SIM. Paralysis as a goal of punishment is in many ways the cleanest form of individual prevention. The purpose of punishment based on this theory is to prevent, at least reduce the opportunity to commit violations in the future.
The emergence of the paralysis theory is also influenced by the view that one of the functions of criminal law is community protection.
The emergence of rehabilitation theory begins with the view that corporal punishment is no longer relevant to be applied. The use of corporal punishment often causes criminals to become disabled so that they can no longer commit criminal law violations. The theory of rehabilitation is also often referred to as the theory of reparation. This theory assumes that criminals are sick people who need treatment. Like a doctor who writes a doctor's prescription, the punisher (judge) must prescribe the punishment that is predicted to be most effective in order to make criminals good people again. Rehabilitation theory focuses on the rehabilitation of criminals through appropriate treatment and good development programs, a criminal is expected to turn into a good citizen so that efforts to reduce crime are achieved and criminals can reintegrate into society.20
Efforts to tackle crime with criminal law are essentially law enforcement efforts (especially criminal law enforcement). Therefore, it is often said that politics or criminal law policies are also part of law enforcement policy. The use of legal remedies, including criminal law, as an effort to overcome social problems, including in the field of law enforcement policies. In addition, because the goal is to achieve public welfare in general, even this law enforcement
17 Anwar Anwar, “Problematika Mewujudkan Keadilan Substantif Dalam Penegakkan Hukum Di Indonesia,”
Jurnal Konstitusi 3, no. 1 (2010).
18 Ika Darmika, “Budaya Hukum (Legal Culture) Dan Pengaruhnya,” Jurnal Hukum Tô-Râ Vol. 2 No. (2016)
19 Sutrisno Sutrisno, Fenty Puluhulawa, and Lusiana Margareth Tijow, “Penerapan Asas Keadilan, Kepastian Hukum dan Kemanfaatan Dalam Putusan Hakim Tindak Pidana Korupsi,” Gorontalo Law Review 3, no. 2 (2020).
20 Andi Muhammad Sofyan and M H SH, Hukum Acara Pidana (Jakarta: Prenada Media, 2020).
policy is included in the field of social policy, namely all rational efforts to achieve community welfare.21
Principles built into the criminal justice system as a means of resolving conflicts caused by crime. This is in line with the view that the purpose of punishment is integrative which includes means of protecting society, re-socialization, and resolving conflicts caused by criminal acts as well as psychological aspects to eliminate guilt for convicts, as stated in Article 51 of Law Number 1 of 2023 concerning Criminal Code states that the purpose of sentencing, namely:
1. Preventing criminal acts by enforcing legal norms for the protection of society;
2. Socializing convicts by holding coaching so that they become good and useful people;
3. Resolving conflicts caused by criminal acts, restoring balance, and bringing a sense of peace in society; and
4. Release the guilt of the convict.22
On the basis of the purpose of punishment referred to systemically it can be used as a reference for the criminal justice administration system, including the criminal justice sub- system at the Police, Prosecutor's Office, judiciary, and correctional levels. Barda Nawawi Arief states that: “the main ideas contained in the formulation of sentencing objectives are:
1. In essence, the law is a legal system that aims to formulate criminal and sentencing rules in the law, in essence it is only a means to achieve the goal,
2. Criminal objectives are an integral part of the sub-system of the entire criminal system (criminal law system) in addition to other sub-systems, namely the sub-system of criminal acts, criminal responsibility (mistakes) and punishment.
3. Formulation of punishment objectives is intended as a "control control function" and at the same time provides a philosophical foundation, basis of rationality and clear and directed punishment motivation.
4. Viewed functionally operationally, sentencing is a series of processes and policies whose concretions are deliberately planned through three stages. In order for there to be continuity and integration between the three stages as a unified punishment system, the purpose of sentencing is formulated.23
Theoretically, criminal cases can be closed by law and prosecuted based on restorative justice can be terminated if several conditions are met, namely first, the suspect is the first time to commit a crime, second, a criminal act is only punishable by a fine or threatened with imprisonment for not more than 5 years, and third, the crime is committed with the value of evidence or losses incurred as a result of the crime of not more than Rp 2,500,000.00. In practice, criminal cases that should be resolved in a restorative manner are still being examined in court, while these cases can be stopped or resolved at the investigation stage at the police or at the prosecution stage at the prosecutor's office. This is evidenced by the data on the number of cases examined by fast proceedings in 2021 in the City of Yogyakarta, namely 40 cases, in 2019 to 2021 in Bantul Regency there were 149 cases, and 214 cases in 2019 to 2021 in Sleman Regency. As a result, the burden on the courts increases and the burden on Lapas (Correctional Institutions) which accommodates prisoners.24
21 Gita Santika Ramadhani and Purwoto Barda Nawawi Arief, “Sistem Pidana Dan Tindakan ‘Double Track System’ Dalam Hukum Pidana Di Indonesia,” Diponegoro Law Journal 1, no. 4 (2012).
22 Yaris Adhial Fajrin and Ach Faisol Triwijaya, “Arah Pembaharuan Hukum Pidana Indonesia Di Tengah Pluralisme Hukum Indonesia,” Ekspose: Jurnal Penelitian Hukum Dan Pendidikan 18, no. 1 (2019).
23 Barda Nawawi Arief, Masalah Penegakan Hukum Dan Kebijakan Hukum Pidana Dalam Penanggulangan Kejahatan (Jakarta: Kencana, 2010).
24 Saleh Muliadi, “Aspek Kriminologis Dalam Penanggulangan Kejahatan,” Fiat Justisia: Jurnal Ilmu Hukum 6, no. 1 (2015).
Several studies regarding the effectiveness of punishment argue that: “imprisonment is not the right choice because criminal law was created to make people aware, obedient, obedient, so that humans do not violate the law a second time. In addition, criminal law can recover losses incurred as a result of the perpetrator's actions. The law does not lock people up in jail which may not necessarily restore the situation to normal. Therefore, imprisonment is not always the right punishment. Appropriate law is law whose application does not cause conflict and does not make people afraid of the law. Order in society is not because of the punishment, but because there are norms and values that the law wants to protect.
“Imprisonment does not produce the expected output, namely that if someone has served a sentence, he will become a better person. This phenomenon is called the criminal cycle, namely prisons are unable to make convicts become good citizens, in some cases, they even become more skilled in committing crimes. Prison should be aimed at deterring perpetrators from actions and as a deterrent for someone to commit prohibited acts. Prisonization of inmates is difficult to avoid, especially if supervision by officers is not carried out optimally.
“Criminal law is said to have run according to the purpose and function of criminal law if imprisonment will bring a person to be better after leaving prison. On the other hand, if someone who gets out of prison does not become a better person, then the law will not work as the function and purpose of law is in society. Therefore, one cannot judge the effectiveness or success of the criminal law seen from the number of prisons and how many people are in prison, but how the criminal system can shape the perpetrator's personality to be good and not anti- social as Moeljatno's opinion above. In other words, imprisonment or any form of punishment is a way of shaping the perpetrator's personality to become a fully good human being. Someone who comes out of prison is expected not to repeat his evil deeds and can be of benefit to the nation and the state, therefore the prison is also called a Correctional Institution. In addition, punishment makes people not do things that are prohibited by law or contrary to the morals of society.
The reality that exists in Indonesia, crimes such as theft, murder, rape, fraud, collection, etc. still use the approach of retaliation against perpetrators of crimes that are considered to have damaged order. Perpetrators who are caught are examined by investigators and undergo trial and most likely the settlement process or the resulting output is that the person will go to prison or be released. In this regard, the correctional database system for 5 August 2018 shows that the number of detainees and inmates in all Correctional Institutions (Lapas) and Detention Centers (Rutan) in Indonesia is 250,444 people. This figure is already excessive considering that ideal prisons and detention centers only accommodate as many as 124,696 people.25
Some of the benefits that can be obtained from restorative justice are that children as perpetrators, victims and witnesses will be protected by a child-friendly and gender-sensitive juvenile justice system and by the community. (Santi Kusumaningrum, Unicef). The restorative justice process is basically an effort to divert from the criminal justice process towards deliberative settlement, which is basically the soul of the Indonesian nation, to resolve problems in a family manner to reach a consensus.26
25 Victorio H Situmorang, R HAM, and JHRS Kav, “Lembaga Pemasyarakatan Sebagai Bagian Dari Penegakan Hukum,” Jurnal Ilmiah Kebijakan Hukum 13, no. 1 (2019).
26 Daffa Ladro Kusworo and Rini Fathonah, “Analisis Implementasi Diversi Dalam Penyelesaian Perkara Anak Pelaku Tindak Pidana Pencurian (Studi Kasus Pengadilan Negeri Liwa),” Inovasi Pembangunan: Jurnal Kelitbangan 10, no. 2 (2022).
The data above shows that prison sentences cause prisons to be overcrowded but do not deter prisoners and victims do not get any recovery from the perpetrators. Apart from not being beneficial to victims, imprisonment has a destructive impact on convicts, namely there is a tendency for people who have served prison terms find it more difficult to adjust to society and at the same time have a vulnerability to repeat crimes. The criminal system that emphasizes retaliation also causes receive delict, considering that the punishment is not oriented towards the recovery of the perpetrator and the interests of the victim.
Miriam Liebman defines Restorative Justice as restorative justice has become the term generally used an approach to criminal justice (and other justice systems such as a school disciplinary system) that emphasizes restoring the victim and community rather than punishing the offender. Based on Miriam Liebman's definition above, it can be said that the concept of restorative justice focuses on justice based on peace. Settlement of a case based on this does not recognize justice based on revenge or punishment of the perpetrator. The application of the concept of restorative justice is a form of development in the criminal justice system which focuses on the involvement between the perpetrator and the victim in the settlement of a case that previously was not one of the mechanisms known in conventional criminal procedural law at this time.
According to Article 1 number 3 of the Republic of Indonesia National Police Regulation Number 8 of 2021 concerning Handling of Crimes based on Restorative Justice, restorative justice is the settlement of criminal acts by involving the perpetrator, victim, perpetrator's family, victim's family, community leaders, religious leaders, traditional leaders or stakeholders the interests of jointly seeking a just solution through peace by emphasizing restoration to its original state. Through a restorative justice approach, a crime can be resolved fairly by involving the perpetrator, victim, their family and other parties involved in a crime, to jointly seek a solution to the crime and its implications by emphasizing recovery. Returning to its original state is a condition of relations between individuals, groups, families, and society, which are injured by the actions of criminal offenders.27
C. Conclusion
Achieving the expected goal of punishment, namely fulfilling the rights of the parties, the paradigm that is built is no longer retributive but is built on the basis of restorative justice, namely restoration to the original state before the criminal incident occurred. Restorative justice is the settlement of criminal cases involving perpetrators, victims, families of perpetrators/
victims, and other related parties to jointly seek a fair solution by emphasizing restoration to its original state, and not retaliation. Restorative justice is a subsystem of punishment where other subsystems are interconnected and work to achieve benefits. The principle of restorative justice is that victims get compensation for those who suffer losses, peace and agreements that can restore the victim's condition. Changing the paradigm of retributive justice to restorative justice is not easy. Imprisonment is not always the right punishment. Appropriate law is law whose application does not cause conflict and does not make people afraid of the law.
27 Sudiyana Sudiyana and Suswoto Suswoto, “Kajian Kritis Terhadap Teori Positivisme Hukum Dalam Mencari Keadilan Substantif,” QISTIE 11, no. 1 (2018).
REFERENCES
A. Book
Ali, D R M Hatta, and M H SH. Peradilan Sederhana Cepat & Biaya Ringan Menuju Keadilan Restoratif. Bandung: Penerbit Alumni, 2022.
Arief, Barda Nawawi. Bunga Rampai Kebijakan Hukum Pidana. Jakarta: Prenada Media, 2016.
Barda Nawawi Arief. Masalah Penegakan Hukum Dan Kebijakan Hukum Pidana Dalam Penanggulangan Kejahatan. Jakarta: Kencana, 2010.
Hamzah, Andi. Hukum Pidana Indonesia. Jakarta: Sinar Grafika, 2017.
Ruba’i, Masruchin. Buku Ajar Hukum Pidana. Bandung: Media Nusa Creative (MNC Publishing), 2021.
Sofyan, Andi Muhammad. Hukum Acara Pidana. Jakarta: Prenada Media, 2020.
Suyanto, H. Hukum Acara Pidana. Bogor: Zifatama Jawara, 1982.
Tomalili, Rahmanuddin. Hukum Pidana. Sleman: Deepublish, 2019.
Zaidan, M Ali. Menuju Pembaruan Hukum Pidana. Jakarta: Sinar Grafika, 2022.
B. Journal
Anwar, Anwar. “Problematika Mewujudkan Keadilan Substantif Dalam Penegakkan Hukum Di Indonesia.” Jurnal Konstitusi 3, no. 1 (2010).
Darmika, Oleh Ika. “Budaya Hukum ( Legal Culture ) Dan Pengaruhnya.” Jurnal Hukum Tô- Râ Vol. 2 No. (2016).
Erlina, Erlina. “Analisa Kriminologi Terhadap Kekerasan Dalam Kejahatan.” Al Daulah:
Jurnal Hukum Pidana Dan Ketatanegaraan 3, no. 2 (2014).
Faizal Azhar, Ahmad. “Penerapan Konsep Keadilan Restoratif (Restorative Justice) Dalam Sistem Peradilan Pidana Di Indonesia.” Jurnal Kajian Hukum Islam 4, no. 2 (2019).
Fajrin, Yaris Adhial, and Ach Faisol Triwijaya. “Arah Pembaharuan Hukum Pidana Indonesia Di Tengah Pluralisme Hukum Indonesia.” Ekspose: Jurnal Penelitian Hukum Dan Pendidikan 18, no. 1 (2019).
Fernando, Zico Junius. “Pentingnya Restorative Justice Dalam Konsep Ius Constituendum.” Al Imarah: Jurnal Pemerintahan Dan Politik Islam 5, no. 2 (2020).
Harefa, Safaruddin. “Penegakan Hukum Terhadap Tindak Pidana Di Indonesia Melaui Hukum Pidana Positif Dan Hukum Pidana Islam.” University Of Bengkulu Law Journal 4, no. 1 (2019).
Hasibuan, Lidya Rahmadani, M.Hamdan, Marlina, and Utary Maharani Barus. “Restorative Justice Sebagai Pembaharuan Sistem Peradilan Pidana Berdasarkan UU No.11 Tahun 2012 Tentang Sistem Peradilan Pidana Anak.” USU Law Journal 3, no. 3 (2015).
Kusworo, Daffa Ladro, and Maghfira Nur Khaliza Fauzi. “Hybrid Restorative Justice:
Optimizing Cessation Of Prosecution The Case Theft Through Restorative Judicial House.” Ius Poenale 3, no. 2 (2022).
———. “Analisis Implementasi Diversi Dalam Penyelesaian Perkara Anak Pelaku Tindak Pidana Pencurian (Studi Kasus Pengadilan Negeri Liwa).” Inovasi Pembangunan: Jurnal Kelitbangan 10, no. 2 (2022).
Muhaimin, Muhaimin. “Restoratif Justice Dalam Penyelesaian Tindak Pidana Ringan.” Jurnal Penelitian Hukum De Jure 19, no. 2 (2019).
Muliadi, Saleh. “Aspek Kriminologis Dalam Penanggulangan Kejahatan.” Fiat Justisia: Jurnal Ilmu Hukum 6, no. 1 (2015).
Ramadhani, Gita Santika, and Purwoto Barda Nawawi Arief. “Sistem Pidana Dan Tindakan
‘Double Track System’ Dalam Hukum Pidana Di Indonesia.” Diponegoro Law Journal 1, no. 4 (2012).
Situmorang, Victorio, and JHRS Kav. “Lembaga Pemasyarakatan Sebagai Bagian Dari Penegakan Hukum.” Jurnal Ilmiah Kebijakan Hukum 13, no. 1 (2019).
Sudiyana, Sudiyana, and Suswoto Suswoto. “Kajian Kritis Terhadap Teori Positivisme Hukum Dalam Mencari Keadilan Substantif.” Qistie 11, no. 1 (2018).
Sutrisno, Sutrisno, Fenty Puluhulawa, and Lusiana Margareth Tijow. “Penerapan Asas Keadilan, Kepastian Hukum Dan Kemanfaatan Dalam Putusan Hakim Tindak Pidana Korupsi.” Gorontalo Law Review 3, no. 2 (2020).
Taufiq, Muhammad. “Penyelesaian Perkara Pidana Yang Berkeadilan Substansial.” Yustisia Jurnal Hukum 2, no. 1 (2013).
C. Regulation
Kitab Undang-Undang Hukum Pidana.
