Penal Mediation
The principle of criminal law develops where
attempted to be implemented the penal mediation concept or ADR in handling the
criminal case
Civil
Crimina
The Principle of Common
Law
The criminal case can
not be resolved
Afdoening Buiten Process
Article 82 paragraph (1)
The authority demanded a criminal offense punishable by a fine only to be removed, if voluntarily paid the maximum fines and costs
have been incurred if the prosecution has begun, on the authority of the officer appointed to it by the general rules, and
The 9
th/1995 Congress of United Nations
(
The Prevention of Crime. And The Treatment
of Offenders)
"
privatizing some law
Aims
shortening the justice process for the cases
especially embezzlement and white-collar crime that tends to be difficult proved and
Reducing the residive rates or repetition of
criminal acts
Returning of state losses (especially for
Other Aims
Reduce the piling up of case in the court;
Encourage the judges to impose conditional
"
International Penal Reform
Conference"
London,
13-17 April 1999
"
to enrich the formal judicial
system with informal, locally
"
The Committee of
the Council of Europe” 1999
Mechanism of mediation
and
Restorative justice
EU Council Framework Decision
2001
Penal mediation
the search prior tool during criminal
proceedings, for negotiated solution between the victim and the author of the offence,
Restorative justice
Restorative justice is a new framework for
responding to wrongdoing and conflict that is rapidly gaining acceptance and support by educational, legal, social work, and counseling
professionals and community groups.
Restorative justice is a valued-based
approach to responding to wrongdoing and conflict, with a balanced focus on the person harmed, the person causing the harm, and the
Definition:
Restorative justice is a new framework for
responding to wrongdoing and conflict that is rapidly gaining acceptance and support by
educational, legal, social work, and counseling professionals and community groups.
Requirement
Direct participant of Stakeholder:
Perpetrators Victims
Society
(restorative justice provides a very different framework for understanding and responding to crime. Crime is
understood as harm to individuals and communities,
rather than simply a violation of abstract laws against the state. Those most directly affected by crime -- victims,
community members and offenders -- are therefore
Requirement
Criminal Justice System at this time have not
provided a place of such patterns;
The principles friction:
Substantive Criminal Law:
1.Ius Punale dan Ius Puniendi 2.Asas Nulla poena sine lege
Advantages
Provide a direct benefit which are felt by both
victims, the perpetrators and the public society,
The resolution of criminal case mechanism with
the restorative justice approaches provides wider society roles,
Process of handling case with the restorative
Supporting factors
Conference
Access to Justice
Alternative Criminal Case Resolution Means of reconciliation
Conference
Victim Offender Mediation (VOM : mediation
between perpetrators and victims)
Conference
Conferencing is a forum similar to VOM, but in this
form there is a difference that involve resolution not only involves the direct perpetrator and victim
(primary victim), but also indirect victims (secondary victim), such as family or close friend of the victim and family and close friend of the perpetrator. The reason for the involvement of such parties are
because they may be affected either directly or
Conference
Circles, a model of the application of
restorative justice are the most widely involve compared with the previous two forms,
Problems
The position of perpetrator and
victim
Out of court settlement unknown in
NETHERLANDS
Terms of Gazette in 1921 and in 1925 were against the criminal case committed by
children.
In Staatblad 1921, this provision did not apply to children under age, while in the
Gazette in 1925 for children who have not
attained the age of 18 years, the terms of the highest amount of fines amounting to 90
Wet vermogenssancties of Netherlands (Law on sanctions against property) on May 1st, 1983.
This provision did not apply only to violation
but also for crimes which the criminal threat is imprisonment of 6 years.
Since this the Right of Accused, then the
prosecutor must offer the settlement through the mechanism before filed a lawsuit to court.
Jan Remelink
The settlement of minor criminal matters
The suspect escaped from a painful
experience
For the prosecution it would constitute a
Important ….
The suspect should be freely and
independently may consider the
merits of the choice by using this
Austria
Pasal 90 Prosedure Code
The Public Prosecutor can divert a
penal case from the courts if the
suspect is willing to acknowledge
Requirement:
if the suspect is prepared to undertake restitution for
the possible consequences of the deed in a suitable manner, in particular by providing compensation for damage caused or otherwise contributing to
reparation for the consequences of the deed, and
if the suspect consents to undertake any necessary
Requirement
1. The accused want to confess his/her
actions;
2. The accused is ready to redress the
compensation especially compensation for losses incurred or
3. The accused is ready to contribute more to
fix the consequences of his deeds and
4. The accused agreed to perform any
obligation required to demonstrate its
REQUIREMENT
Imprisonment is not more than
5 years to adult and 10 years
for children. It is not possible
to be applied, if any victim
died as in the
manslaughter
Reality in the Society
O (15 years old) one day in August, 2005 in
Tangerang west java came to NSR and ask for the permission to borrow the federal bike brands which was parked in front of his yard. Without
suspecting the bad faith, NSR gave the
permission. However, until the nightfall the bike it never returned. It turned out the bike was taken away by O who was a month never came home. This case was resolved by restoring the bike that
Reality in the Society
Case that occurred in the area of Kebon Jeruk West Jakarta in mid-September 2006, a girl
ran to the her boyfriend’s boarding house because she was in conflict with her mother.
Unfortunately, she then raped by her
boyfriend. On the basis of agreement of their parents (after a young man's parents and the
Reality in the Society
On March 19th, 2007, traffic accident happened in the
area of Central Jakarta by a public transport driver who killed 2 (two) victims. A week later this case was
resolved by peaceful means where the perpetrator sympathize to the victim’s family with a sum of money
as a trading capital for the victim’s wife. The police’s reason of doing this solely because see that the criminal act was the negligence threat of criminal under 5 (five) years and the economic condition either
by the perpetrator or the victim that were not profitable. On the consideration that the resolution through the process of criminal justice would be more devastating to both parties and with the consideration
The Decision of Palangkaraya District Court No. 278/Pid.B/2003/PN.P1.R on December 16th, 2003
…... Because of the family of the victim and the accused family has been hold the customary peace, the peace where the accused has
complied with all demands according to Dayak Customary Law, so that the values of living in the society, should be observed and
respected, because besides the juridical
aspects and philosophical aspects of the Panel of Judges also consider the sociological
The Decision of North Jakarta District Court on June
17th, 1978 No.46/Pid/UT/781/WAN
stated the Act of the accused above, Mrs. Elly Dado proven legally and convincingly both the primary charges. Subsidiary and the
Law
Article 97 of Criminal Procedure Code:
Material Compensation
Law No. 23 of 1997: Primum remidium
Law No. 22 of 1997 : The participation of
society in the rehabilitation of drugs addict.
Law No. 3 of 1997 : Prior to pronounce its
Breakthrough
Article 54 and 100 of RKUHP
Expansion the provisions of Article 82 of Penal
Code
Harmonization of Formal Criminal Law and
