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IMPLEMENTATION DIVERSION IN SETTLEMENT CASES FOR CHILDREN PERPETRATORS CRIME THEFT AT TANJUNG
KARANG DISTRICT COURT
Daffa Ladro Kusworo1, Maghfira Nur Khaliza Fauzi2
1Pengadilan Tata Usaha Negara Lampung, Indonesia, E-mail: daffalkusworo@gmail.com
2Pengadilan Tata Usaha Negara Lampung, Indonesia, E-mail: maghfira0601@gmail.com
Submitted: January 10, 2023; Reviewed: February 08, 2023; Accepted: February 13, 2023 DOI: 10.25041/cepalo.v6no2.2704
Abstract
The implementation of Diversion solves children's cases with peace efforts outside the judicial process and always provides legal protection to children to fulfill their future interests. In the data obtained that the implementation of Diversion in the settlement of cases of child perpetrators of the crime of theft in 2022, the Tanjung Karang District Court has succeeded in carrying out diversion cases in 3 cases out of 11 cases theft. However, there was a failure in carrying out Diversion because only one of them was successfully handled by Diversion, indicating that obstacles were found that affected the success of the Diversion. This study uses normative Law accompanied by legal rules that apply in society and literature studies in the form of books, journals, etc. The analytical method that will be used for this normative legal research is to use qualitative analysis methods. The data from this qualitative analysis are obtained from various sources in qualitative research; data analysis is more focused during the process in the field and data collection. It can be concluded that obstacles affect the success of Diversion at the Tanjung Karang District Court because the victim does not agree to the diversion agreement. There are objections to the compensation fee that the perpetrator must make to the victim and different understandings of law enforcement officials (APH) to implement Diversion successfully.
Keywords: Child, Diversion, Theft
A. Introduction
Children frequently engage in illegal actions that go against public order and counter laws and regulations. In numerous instances, it was discovered that the child's immediate environment negatively influenced his conduct. It frequently happens that when a youngster is abandoned and unable to meet his basic requirements, he develops the want to do something wrong and causes harm to both himself and other people. In this example, out-of-court settlement of child custody disputes tries to shield kids from social stigma. A viewpoint known as "community labeling" or "stamping" develops due to responses from those who violate community norms.1 According to this labeling, once a person is identified as a perpetrator of deviance because they are considered unattractive, their identity will change, making them feel isolated from society and more motivated to engage in deviant behavior. Juvenile delinquency, defined as criminal behavior committed by a youngster that violates the norms and values of society, is the general term for this type of behavior. When a youngster violates the Law, the formal judicial system handles the case, negatively impacting the child's behavior. The initial
1 Sri Sutatiek, Hukum Pidana Anak Di Indonesia (Yogyakarta: Aswaja Pressindo, 2015),hlm 6.
Fakultas Hukum, Universitas Lampung, Bandar Lampung, Lampung, Indonesia.
E-ISSN: 2598-3105 P-ISSN:2723-2581 http://jurnal.fh.unila.ac.id/index.php/cepalo
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goal of sentencing through the official criminal justice system by imposing a prison sentence did not deliver a better deterrence or personal effect. Young people can conduct crimes with more excellent professionalism.2
Notably, the offense of stealing frequently emphasizes the rights of those who take their own or someone else's property to break the Law. When it comes to the backgrounds and motivations of children who conduct crimes, they commit many different types of crimes. For example, they frequently commit theft, defined in Article 362 of the Criminal Code and included as theft in its basic form. Additionally, theft in the form of weighing, which is prohibited by Article 363 of the Criminal Code, is frequently committed by kids. Teenagers who have dropped out of school and delinquent children who are still in school frequently commit both types of theft. In addition, as specified in Article 365 of the Criminal Code, the Tanjung Karang District Court essentially accepts numerous cases of adolescents committing theft with violence. Article 362 of the Criminal Code specifies that one of the theft crimes is subject to a maximum sentence of five years in prison.3 Let's look more closely at the requirements of the article mentioned above. We see that stealing is a crime category with a maximum sentence of 7 years, indicating that the diversion condition has been met. From 2017 until 2022, many youngsters will still have to deal with the legal system. The following information relates to the different types of crimes that children have committed.
Diversion is the transfer of instances in which children are suspected of committing specific crimes from the official criminal procedure to a peaceful resolution between those who committed the crimes and those who were the victims, as specified in Article 7 of the SPPA Law. Diversion is implemented with the victim's and her family's consent and is made possible by family, community, youth leaders, police, prosecutors, and judges. Therefore, only a few legal disputes can be settled by restorative justice, including theft crimes, while the rest can be resolved through formal courts. Children who steal must be dealt with following Law Number 11 of 2012, which involves a diversionary process based on discussion including the child and his parents/guardians, victims and parents/guardians, community advisors, and social workers.4 According to Article 7 of the SPPA Law, Diversion is the transfer of cases involving children suspected of committing specific offenses from the official criminal procedure to a peaceful resolution between the criminal Act's offenders and victims. Diversion is implemented with the victim's and her family's consent and is made possible by family, community, youth leaders, police, prosecutors, and judges. As a result, only a few legal disputes can be settled outside of formal courts, including those involving theft, which can be remedied through restorative justice. Children who steal must be dealt with following Law Number 11 of 2012, which in this case, involves a diversion process based on a discussion between the child and his parents/guardians.5
As a law enforcement and judicial institution, the Tanjung Karang District Court has essential responsibilities that must be carried out competently by all levels and layers of its constituent parts. Since finding the genuine truth is essential to achieving full justice, the District Court's fundamental responsibility as a judicial institution is to uphold the Law. As a stand-alone judicial entity, the Tanjung Karang District Court theoretically upholds the provisions of the Law for both adults and children at all societal levels. Tanjung Karang District Court always prioritizes the application principle of Diversion to children in cases involving theft and other offenses, provided that the SPPA Law's rules and circumstances are met. This
2 Nasir Djamli, Anak Bukan Untuk Dihukum (Jakarta: Sinar Grafika, 2013), hlm 32.
3 Undang-Undang Nomor 35 Tahun 2014 Tentang Perubahan Atas Undang-Undang Nomor 23 Tahun 2002 Tentang Perlindungan Anak (Lembaran Negara Nomor 2014, Tambahan Lembaran Negara No. 5606).
4 Fetri A R Tarigan, “Upaya Diversi Bagi Anak Dalam Proses Peradilan,” Lex Crimen 4, no. 5 (2015).
5 Komariah Komariah and Tinuk Dwi Cahyani, “Efektifitas Konsep Diversi Dalam Proses Peradilan Anak Pelaku Tindak Pidana Menurut UU No. 11 Tahun 2012 Tentang Sistem Peradilan Pidana Anak,” Legality: Jurnal Ilmiah Hukum 24, no. 2 (2016).
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is true even when the case is not a theft-related offense.6 Tanjung Karang Court will continue to seek Diversion even if it was attempted and unsuccessful in the previous stage of the judicial proceedings because it is required by law to do so. Article 362 of the Criminal Code (common theft), charged against children, carries a term of less than 7 (seven) years, except for recidivists.
Based on Criminal Code Article 362, which
"Anyone who takes something, or which wholly or partly belongs to another person to possess it unlawfully, is threatened with theft, with a maximum imprisonment of five years or a maximum fine of sixty rupiahs."
The article above, "imprisonment of a maximum of five years," suggests that a youngster who commits theft may still be eligible for Diversion because the criminal sentence is less than seven years. If the two parties have reached an understanding regarding compensation or other terms the victim has requested, the Diversion has been successful. Compared to other illegal acts, such as fighting, sexual crimes, persecution, and so on, determining the little compensation will typically be simpler. It is a reality that many children in Indonesia have still received sentences after the Juvenile Criminal Justice System Act was passed, particularly in Bandar Lampung. In the resolution of criminal activities, one of which concerns children as the offenders of the crime of stealing, protecting children in conflict with the Law by law enforcement is considered exceptionally subjective. As was the case at Tanjung Karang District Court, adjudicating criminal theft cases through courts frequently resulted in incarceration.
When deciding whether to sentence a kid to prison, the judging panel should consider the circumstances that led to the theft, such as the child's environment or an urgent need to satisfy it.7
The juvenile justice system does not always quickly implement the restorative justice philosophy. Theoretically, law enforcement officials at all levels could assist in implementing mediation by mandating that young people in legal trouble complete some educational or training programs at particular organizations, such as other actions taken as a form of recovery for the offender or if forced to receive a punishment. Children's rights must still be given top priority. Implementing Diversion, therefore, always offers children legal protection to fulfill their future interests while resolving children's cases through efforts for peace outside the legal system. This research makes use of normative Law with an emphasis on the kind of research that is supported by applicable legal regulations, as well as literature studies in the form of books, journals, and other written works. Based on the description of the background information above, a problem is identified, specifically how the Tanjung Karang District Court implements Diversion against children who commit theft-related crimes and what challenges stand in the way of doing so. It is hoped that by analyzing this research, we can identify challenges to implementing Diversion at the Tanjung Karang District Court so that it can be used as information by legal professionals, particularly Tanjung Karang District Court judges, to quickly find solutions to issues involving diversion efforts against kids who commit theft crimes.8
This research refers to research conducted by Suprihanto Pardjanihadi in 2021 which discusses handling child diversion as a suspect in the crime of motor vehicle theft at the Sibolga Police, where Diversion is carried out at the investigative level, while this research discusses Diversion in court. The novelty of this research is raised the issue related to Diversion for children as perpetrators of criminal acts of theft at the Tanjung Karang District Court in 2022 as the latest current data, where Diversion is a form of interpretation of restorative justice for
6 Azmiati Zuliah, “Urgensi Pelaksanaan Diversi Dan Keadilan Restoratif Pasca Pemberlakukan Undang-Undang No 11 Tahun 2012 Tentang Sistem Peradilan Pidana Anak,” Warta Dharmawangsa, no. 51 (2017).
7 Nurini Aprilianda, “Implikasi Yuridis Dari Kententuan Diversi Dalam Instrumen Internasional Anak Dalam Hukum Anak Di Indonesia,” Arena Hukum 5, no. 1 (2012).
8 Mardi Fitri, “Faktor Yang Mempengaruhi Perkembangan Moral Pada Anak Usia Dini,” Al-Athfaal: Jurnal Ilmiah Pendidikan Anak Usia Dini 3, no. 1 (2020): 1–15.
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children in the criminal justice system which cannot be equated with adults. Moreover, the crime of theft should be easier to reach a diversion agreement than other cases because theft can be calculated as a nominal compensation unless it is accompanied by a burden, for example, murder.
The descriptive nature of this research is used to describe, study, explain, and analyze Law Number 11 of 2012 concerning the Juvenile Criminal Justice System and the Criminal Code both in theory and in actual application from the field research findings. Normative legal research uses Law Number 11 of 2012 concerning the Juvenile Criminal Justice System and qualitative analysis techniques as an analytical approach. In qualitative research, data is collected from various sources, and data analysis is more alternative during the data collection process at the Tanjung Karang District Court. So this research will analyze the Implementation of Diversion in Settlement Cases for Children Offenders of theft Crimes at the Tanjung Karang District Court and the factors that impede agreement in the Diversion.9
B. Discussion
1. Implementation of Diversion Against Children as Perpetrators of the Crime of Theft at the Tanjung Karang District Court
When it comes to the deliberation-based diversion process used against a child burglar, it can still be used as long as the threat of imprisonment under Article 362 of the Criminal Code is less than seven years and the burglary was not a recurrence of a prior offense (recidivism).
Diversion can be implemented using a variety of techniques, including mediation, restitution or compensation from the perpetrators, apologies from the perpetrators, accountability for actions with promises that they won't repeat them, restoration of the original situation, or recovery through community elements by offering social work, among others. This right can only be granted if specific groups would truly experience injustice if they received the same treatment as everyone else. To ensure that the group receives justice, this specific treatment is provided.
This is referred to legally as affirmative action or ordinarily as positive discrimination.
Affirmative action is necessary for the vulnerable population of people with disabilities.
When it comes to the deliberation-based diversion process used against a child burglar, it can still be used as long as the threat of imprisonment under Article 362 of the Criminal Code is less than seven years and the burglary was not a recurrence of a prior offense (recidivism).
Diversion can be implemented using a variety of techniques, including mediation, restitution or compensation from the perpetrators, apologies from the perpetrators, accountability for actions with promises that they won't repeat them, restoration of the original situation, or recovery through community elements by offering social work, among others.
The conventional distinction between crime and action is that while punishment is meant to atone for the wrongdoer's transgressions, action is meant to advance both the offender and society. The distinctions mentioned above suggest that punishment is meted out to those who are found to be responsible and guilty. It is important to respect children, even those who commit crimes, in light of the principles of child protection, particularly the principle of non- discrimination, which puts children's best interests and their rights to life, survival, and development first. Consequently, a youth crime control system is required, with a method for the Diversion of children's cases for resolution from the outside trial. We can comprehend the notion of Diversion, which is the transfer of child custody cases from the criminal court system to a procedure outside the system. In Act Number 11 of 2012, Concerning the Juvenile Criminal Justice System, the principle of Diversion is further explained. Evidently, in the resolution of juvenile criminal proceedings, the concept of diversions should take precedence over the judicial procedure. When a crime is committed that carries a sentence of fewer than seven years
9 Zainuddin Ali, Metode Penelitian Hukum, ed. Leni Wulandari (Jakarta: Sinar Grafika, 2021), hlm 7.
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in jail and is not a repeat offense, these conditions are outlined in Article 7 of Law Number 11 of 2012 governing the Juvenile System of Criminal Justice.10
Every year, incidents involving theft by children outnumber those involving molestation, driving, sexual assault, and other issues. There is an imbalance in the number of cases, which means that the crime of theft disproportionately predominates the actions committed by children. This shows that child crimes are primarily caused by a variety of factors, including the weakening economy, the influence of the environment around them, or even the children themselves. According to data from the Tanjung Karang District Court, cases of child theft accounted for roughly half of all cases processed by judges there during the previous five years, and many of these cases resulted in sentences from judges. In particular, the Tanjung Karang District Court finds that minors who steal do so under the influence of their social milieu as well as because they have a genuine desire to steal (playmates). The desire of children to continue having fun playing with their friends despite the fact that the money they get from parents (snack money) is limited or there are environmental factors at play are two other causes that often play a role in children committing larceny. Adults who are perceived as being harmful to children might influence them by treating them the same way and acting in ways that are inappropriate for their age.11
In order to change how kids behave when committing crimes. Part of the judge's power to prevent juvenile offenders from going through the legal system is the resolution of children's cases by giving priority to the diversion efforts offered by the Tanjung Karang District Court.
Given that victims are not required to be presented under the rules of the juvenile criminal justice system, the victim's involvement in cases resolved through Diversion is crucial. In actuality, victims are those who suffer immediate harm as a result of child criminal activity. As if the victim has interests that need to be taken into consideration during the deliberation in order to come to the best decision possible for both parties. The perpetrators, specifically the children who committed the theft crime and their families, must then be considered in a diversionary proceeding while keeping in mind that the perpetrators' age has not yet reached adulthood.12 Additionally, the family is crucial in coming to a resolution on the case's settlement. The child's parents or guardians will talk because some of the discussions about compensation or compensation provided in accordance with the deliberation agreement are difficult for the child to understand. In order to advance public interests as a means of establishing order in society, community leaders also take on the role of a group that fights for the interests of the area where the crime is committed. Local community leaders will be represented in this situation, provided they have a personal stake in the outcome, such as village chiefs or other legitimate community representatives.13
However, not all instances of child stealing can be settled amicably, and in the end, the judge sentences the child. In essence, situations of child delinquency including theft can be resolved in a familial manner. The Juvenile Justice System Act, officially known as Law Number 11 of 2012, was issued in order to govern how to protect children from the criminal justice system as well as how judges can send minors to prison. The fundamental definition of a child who commits a crime is an ABH who is 12 years old but has not yet become 18 years old, as established by Law Number 11 of 2012 About the Juvenile Criminal Justice System.
Then, after realizing that better institutions and legal tools are essentially needed for child protection, the juvenile criminal justice system (SPPA), which covers all stages of case-
10 Yul Ernis, “Diversi Dan Keadilan Restoratif Dalam Penyelesaian Perkara Tindak Pidana Anak Di Indonesia,” Jurnal Ilmiah Kebijakan Hukum 10, no. 2 (2016).
11 M H Dahlan Sinaga SH, Mengkritisi Gagasan Perluasan Berlakunya Diversi: Seri Penegakan Hukum (Jakarta: Nusamedia, 2021), hlm 51.
12 Rian Prayudi Saputra, “Perkembangan Tindak Pidana Pencurian Di Indonesia,” Jurnal Pahlawan 2, no. 2 (2019).
13 Arfan Kaimuddin, “Perlindungan Hukum Korban Tindak Pidana Pencurian Ringan Pada Proses Diversi Tingkat Penyidikan,”
Arena Hukum 8, no. 2 (2016).
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settlement processes that are focused on the interests of children, came into being. Juvenile Criminal Justice System Act's existence, which replaced Juvenile Court Law, demonstrates the need for unique management of children in legal conflict, particularly through Diversion and the possibility of punishment and action if an agreement cannot be reached.
The judge, who served as the diversion facilitator, the substitute registrar, and the community counselor for fathers, victims, children, and parents were the parties present during the execution of this diversion deliberation. The diversion facilitator asks the parties if they are willing to conduct a diversion consultation to begin the diversion deliberation. The parties are then given a chance to express their opinions as follows:
a. The offender's son acknowledged that he would no longer steal, but he also said that he still wished to pursue higher education.
b. The parents of the perpetrator's child also stated that he was willing to educate and care for the perpetrator's child in a better manner and did not engage in illegal activities that broke the Law. The influence of the child's playmates is also reflected in their actions.
c. In this instance, the victim is open to receiving payment for the motorcycle that the offender's child stole.14
It is possible to say that, based on the Law governing the juvenile criminal justice system, Diversion only applies to cases of general theft and does not apply to theft accompanied by violence because common theft has charges under 7 years. However, if it is related to theft, which is regulated in the Criminal Code. and theft committed alongside violence carries a sentence of more than 7 years in prison. Thus, Diversion cannot be implemented by judges in court in accordance with the Act of the juvenile criminal justice system. Every person, especially children, commits theft crimes on a regular basis. Children steal because of their drives and instincts. The urge to act or do something at the appropriate time is a part of human nature and is known as an impulse. Humans have a secret ability or knowledge known as an instinct that guides them in acting on their inner urges. In this case, the Tanjung Karang District Court will continue to pursue Diversion because, in accordance with the Act's mandate, seeking Diversion is required but achieving diversion results or failing to do so is not, particularly in the case of kids who steal while they are the subject of the article that charges them with stealing. Except for recidivists, ordinary theft under Article 362 of the Criminal Code carries a sentence of less than 7 (seven) years.15
The Tanjung Karang District Court has handled 205 cases of child theft in the last five years, from 2017 to 2022, according to data on handling child cases under the Juvenile Criminal Justice System Act, and there were 34 cases related to child theft in 2022. According to data from the Tanjung Karang District Court, over half of the cases handled by judges there in the previous five years involved cases of theft by children, and many of these cases resulted in sentences from judges. If we take a deeper look at the child theft diversion case, the Tanjung Karang District Court has successfully diverted 3 cases out of 11 theft cases in the table below.
Table.2 Child Theft Cases that have been carried out by Diversion in 2022
No. Case Number Diversi
Succeed Not successful
14 Rizki Handayani Harahap, Fatahuddin Aziz Siregar, and Ikhwanuddin Harahap, “Faktor-Faktor Penyebab Terjadinya Kejahatan Pencurian Berulang,” Jurnal El Thawalib 1, no. 2 (2020): 1–15.
15 Mohd Syahputra and Sukri Harriyus, “Analisa Penyelesaian Tindak Pidana Pencurian Ringan Melalaui Restorative Justice (Studi Kasus Polsek Senapelan Kota Pekanbaru)” (Universitas Islam Riau, 2020).
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1 10/Pid.Sus-Anak/2022/PN Tjk
2 22/Pid.Sus-Anak/2022/PN Tjk
3 23/Pid.Sus-Anak/2022/PN Tjk
Decisions Number 22/Pid.Sus-Anak/2022/PN Tjk and Number 23/Pid.Sus-Anak/2022/PN Tjk demonstrate that Diversion in the form of restorative justice cannot be carried out optimally, but despite numerous implementations of Diversion that failed, one Diversion was successfully carried out by implementing the restorative justice approach, leading to the conclusion of a diversion agreement. The judge who handled the child's case was successful in Diversion as specified in the Law on the Juvenile Criminal Justice System, as evidenced by Determination Number 10/Pid.Sus-Anak/2022/PN Tjk. The child's apology in this case, his acknowledgment of what he had done, and the victim's sincerity in accepting the perpetrator's apology all contributed to the success of this Diversion. The judge will then make a ruling based on this victory, stopping the investigation against the child. Numerous failed cases and a few instances of successful Diversion demonstrate that difficulties in reaching an agreement frequently arise when trying to implement Diversion at Tanjung Karang District Court. Due to the numerous cases that the judge at the Tanjung Karang District Court has handled, only one of them has resulted in a successful diversion. This failure demonstrates that there are still challenges that the Tanjung Karang District Court must overcome in order for the Diversion to be successful.16
More instances of diversion failure suggest that Diversion also fails at the level of the police and prosecutor, and this is typically brought on by two factors: first, the victim does not accept the agreement; second, there is opposition to the amount of compensation that the perpetrator must pay to the victim; and third, there are other barriers that prevent the successful implementation of Diversion.17
2. Barriers to the Diversion Implementation Process at the Tanjung Karang District Court
Using a restorative justice approach when handling criminal cases offers different perspectives and strategies, particularly when dealing with juvenile offenders. Diversion can be used to apply restorative justice when dealing with kids who have run afoul of the Law.
Diversionary tactics are effective in preventing children from being involved in court proceedings. The process of excluding children from the legal system can allow children- whether who are the perpetrators or the victims-to express their feelings more freely. A third- party facilitator, in this case, the judge, is needed to mediate the execution of the parties' agreement to the Diversion and to determine the appropriate course of justice. Justice can best be understood by equating it with the rule of Law.18
There are still cases of children who are not prosecuted by Diversion at the investigation level, adding to the case data at the prosecutor's office and the court, even though the Child Criminal Justice System Law has been issued. The number of decisions against children made by judges at the Tanjung Karang District Court, particularly between 2017 and 2022, demonstrates that difficulties are encountered when implementing Diversion so that they are subjected to criminal penalties. stressed by the legal system. This is due to the fact that the requirements outlined in Article 7 of the SPPA Law have not been met, making it impossible
16 Andri Sinaga and Ainal Hadi, “Tindak Pidana Pencurian,” Jurnal Ilmiah Mahasiswa Bidang Hukum Pidana 2, no. 1 (2018).
17 Rony A Walandouw, “Unsur Melawan Hukum Yang Subjektif Dalam Tindak Pidana Pencurian Pasal 362 KUHP,” Lex Crimen 9, no. 3 (2020).
18 Basri Basri, Heni Hendrawati, and Yulia Kurniaty, “Kajian Yuridis Unsur Tindak Pidana Pencurian Dengan Kekerasan,”
2015.
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to fully implement the settlement through Diversion in this child case.19 It can be argued that not all criminal acts are susceptible to distraction tactics, as in the case of theft committed violently, in which the perpetrator snatches the victim while he is being ridden and causes him to fall to the ground. Then the offender took the victim's cell phone and wallet, both of which contained money. The offenders sold the victim's wallet and cell phone for amusement. In this instance, the victim had a history of frequent looting, according to community testimony. The criminal code's Article 365, paragraph (2) 2, states that the Act committed by a child carries a 12-year sentence. Then there are other challenges, such as the following, that prevent Diversion from being implemented even when requirements are met:
a. Victim's readiness to make amends
Diversion agreements cannot be reached without the victim's will to make peace, which is the main barrier to Diversion. Diversion aims to keep kids out of courtrooms and away from the stigma associated with being in trouble with the Law and expected to return to a normal social environment. The victim essentially does not want to sign the diversion agreement for a variety of reasons. These include the victim's concerns or his desire for the perpetrator to be put in jail. The victims' willingness to reach a settlement is a hurdle for the public prosecutor as well as for the court system. The psychological pain that the victim has experienced is the reason why they do not want to make peace in this situation. Because they are the ones who suffer as a result of the perpetrators' actions, victims still want the perpetrators-especially children-to to receive prison sentences because, if the offender is still at large or living in the neighborhood, they will be plagued by fear and reluctance to participate in Diversion.20
According to the results of an interview with Tanjung Karang High Court Judge Abdul Siboro S.H M.H, the victim's agreement is the primary factor determining the success of Diversion. If the victim is not on board with the implementation of the diversion deliberation, even though the judge has made every effort to mediate between the two parties, it will still be unsuccessful and the case will proceed to trial. However, in the future, the court's decision may still allow for the leniency of criminal penalties in order to further the child's interests. The victim's understanding in this case still prioritizes getting even for the offender, which is known as a retributive view of justice. The Juvenile Criminal Justice System Law has changed the doctrine of retributive justice to restorative justice, where children are more expected to be responsible and the interests of the victim are also taken into account. As a result, the victim's perspective of the perpetrator's child from this perspective is not appropriate.
Another reason why victims are hesitant to participate in Diversion is that they and their families are aware that it is only intended to free the offenders and has no deterrent effect whatsoever; as a result, they fear that their actions will cause trouble in the community once more. While Diversion is essentially an agreement that the offender must follow, there are many benefits to doing so, including changing the child's perspective and making him less likely to repeat his actions. Mr. Siboro continued by saying that the community needs to have a better understanding of the significance of implementing Diversion in order to achieve justice for both parties while also acknowledging the losses sustained.21
b. Calculating the Amount of Compensation
The choice of the compensation amount acts as a deterrent to Diversion. This is also supported by other factors when there is a negative response from the victim who still feels hurt
19 Ari Darman, Dewa Gede Sudika Mangku, and Made Sugi Hartono, “Penolakan Penghentian Penuntutan Berdasarkan Restorative Justice Terhadap Dugaan Modus Operandi Tindak Pidana Pencurian (Studi Kasus SK Kejati Sumbar No: B-/L.
3/Es/10/2020 Dan Putusan No. 177/Pid. B/2020/PN PNN),” Jurnal Komunitas Yustisia 5, no. 1 (2022).
20 Maria Silvya E Wangga, Hukum Acara Pengadilan Anak: Dalam Teori Dan Praktik (Jakarta: Universitas Trisakti, 2016), hlm 20.
21 Undang-Undang Nomor 11 Tahun 2012 Tentang Sistem Peradilan Pidana Anak (Lembaran Negara Nomor 153, Tambahan Lembaran Negara Nomor 5332).
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over the actions committed by the perpetrator against the victim; this is also a limiting factor when Diversion fails. The parties, both the parents of the perpetrator and the parents of the victim, typically difficult to reach an agreement on the amount of compensation that must be met. According to the community, if the victim requests compensation while the child's family (the perpetrator) is unable to pay, the perpetrator should be jailed or subjected to other suitable punishment.
According to the results of an interview with Abdul Siboro S.H M.H, the judge of the Tanjung Karang High Court, the victim in the diversion agreement demands compensation for the goods/objects that the child who committed the theft as the perpetrator stole, but cases frequently occur where the perpetrator and his family are unable to pay the losses due to the bad economy. Along with items (like money) that have previously been used to satisfy their needs, theft is made difficult to the point where it becomes the motivation. It is evident that one can firmly defend private property on the basis of John Rawls' theory of justice and the principle of doing so. That statement can be related to looking at the obstacles to Diversion from the outside in, where the most important obstacle is the victim's willingness to make peace, implying that the victim is reluctant to forgive the perpetrator of the actions that have hurt him out of survival. Studying current factors, where these factors are applied based on John Rawls' principle of justice in terms of upholding private property, can help explain the judge's choice to sentence the offender's child. Private property is designed to help the victim survive.22
The demand for increased compensation from victims is evidence that John Rawls' theory of justice based on socioeconomic disparities holds true in modern society. The disparity in wealth and standard of living between the victim's and the offender's owners is what gives rise to this desire. However, when dealing with children's issues that are in violation of the Law, law enforcement officials must apply the restorative justice principle. Finding the causes of the perpetrators' actions, holding them accountable for their actions, and implementing Diversion as a starting point for the justice principle all require restorative justice. There can never be a diversion agreement because the victim's request for compensation costs that he experienced was deemed inappropriate or unreasonable, despite the fact that this attitude frequently manifests itself in the implementation of Diversion carried out using a form of restorative justice.23 The victim almost always demands that the compensation demands offered in the implementation of Diversion be fulfilled, even though what is requested exceeds the reasonable value and also exceeds the economic situation of the perpetrator's child, which becomes a barrier to reaching a diversion agreement. The victim's testimony was not immediately accepted by the judge when making the diversion agreement.24
c. Law enforcement officials' comprehension of Diversion
Before a case is brought before a court, investigators who specialize in working with children in legal trouble are the first point of contact. In fact, the investigators' role—which does not involve Diversion—can lead to more cases in district court. In addition to the implementation of Diversion that investigators are unable to carry out, the failure of the investigator's role to find a point of agreement on Diversion between the perpetrator's child and the victim can also lead to an increase in cases in the Tanjung Karang District Court for children.25 Prosecutor reminded investigators to divert based on Article 96 Juvenile Criminal Justice System Act, which requires law enforcement officials to diversify at every level, in order to deal with this. Another reason why Diversion is not used is because investigators were
22 Muhammad Wiwin Rahmadani, “Penerapan Diversi Pada Tahap Penuntutan Dalam Sistem Peradilan Pidana Anak,”
Badamai Law Journal 2, no. 2 (2020).
23 Wiwik Afifah, “Pertanggungjawaban Pidana Anak Konflik Hukum,” DiH: Jurnal Ilmu Hukum 10, no. 19 (2014).
24 Belli Jenawi, “Kajian Hukum Terhadap Kendala Dalam Perlindungan Hukum Oleh Aparat Penegak Hukum Terhadap Anak Korban Pelecehan Seksual (Ditinjau Dari UU No. 35 Tahun 2014),” Lex Crimen 6, no. 8 (2017).
25 Hartono, “Konsep Pembinaan Anak Dalam Lembaga Pembinaan Khusus Anak (LPKA) Dalam Perspektif Hak Asasi Manusia,” Yuriska: Jurnal Ilmiah Hukum 11, no. 1 (2019).
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careless in how they handled children who were in trouble with the Law. Investigators are unable to perform Diversion due to the difficulties in implementing diversion training for investigators.26
The background and the context in which Diversion will be used have a significant impact on its definition and understanding. Any type of activity that can be called a diversion has a broad definition. Law enforcement personnel will handle each violation that occurs and enters the formal process up until a legal or criminal decision is made regarding it. Officers will carry out their actions in relation to the perpetrators in accordance with the relevant legal regulations.
One of the laws for dealing with crimes that are subject to the formal justice system is the diversion rule. Before engaging in the Diversion, the apparatus must understand its meaning and objective. If the apparatus performs Diversion as a task, the apparatus must be able to take the proper action with regard to Diversion; otherwise, it will result in a community-wide attitude toward victims and offenders. People will avoid the diversion process as a result because they believe it to be unbalanced in execution and that it is the apparatus's arbitrary translation of their power.27
In addition, the author claims that when the parties decide to do the Diversion, the Diversion's implementation process starts. The examination procedure used in court is essentially identical to that used in the investigation and prosecution stages. Since there is no improvement or evaluation of the implementation of Diversion from one level to the next according to the equation of the examination model, it follows that Diversion, which essentially fails at the investigator level, is also likely to fail at the court level due to the examination model that has failed. remains unchanged. This means that if the Diversion fails at the investigation level, it is not necessarily said to fail at the court level due to the difference between the qualities of each diversion facilitator in finding a point of agreement to reconcile the parties involved.
Diversion facilitator in finding a point of agreement to reconcile the parties involved.28
C. Conclusion
The Tanjung Karang District Court's implementation of Diversion in resolving cases involving child theft offenders has successfully conducted diversion cases in the theft offenders committed by children. Based on the information obtained, the Tanjung Karang District Court has successfully diverted 3 of the 11 theft cases in this case. Many attempts at Diversion have failed, but there has also been one successful Diversion, namely in Case Number 10/Pid.Sus- Anak/2022/PN Tjk, where the judge who handled the child's case was successful in Diversion.
Decision Number 22/Pid.Sus-Anak/2022/PN Tjk and Decision Number 23/Pid.Sus- Anak/2022/PN Tjk demonstrates that Diversion in the form Due to the numerous cases handled by the judges at the Tanjung Karang District Court, the failure to complete this Diversion demonstrates that it has not been entirely successful. This demonstrates the identification of challenges that affect the success of Diversion at the Tanjung Karang District Court. More instances of diversion failure suggest that Diversion also fails at the police and prosecutor levels. This is typically caused by some factors, including the victim's disagreement with the agreement, objections to the compensation fee that the offender must pay the victim, and different interpretations of the Enforcement Apparatus Law's (APH) role in successful diversion implementation.
To carry out outreach activities to the community and overcome resistance from the victim in question and the local community, it is necessary to convey the idea that children in legal trouble do not always need to be locked up but can instead be diverted through restorative
26 Jenawi, “Kajian Hukum Terhadap Kendala Dalam Perlindungan Hukum Oleh Aparat Penegak Hukum Terhadap Anak Korban Pelecehan Seksual (Ditinjau Dari UU No. 35 Tahun 2014).”
27 Laurensius Arliman, Komnas HAM Dan Perlindungan Anak Pelaku Tindak Pidana (Sleman: Deepublish, 2015), hlm 33.
28 Faisal Salam, Hukum Acara Peradilan Anak Di Indonesia (Jakarta: Mandar Maju, 2005), hlm 12.
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justice forms, providing victims and offenders with a satisfactory resolution. Reeducating the public about the need to lessen demands for diversion agreements is necessary when it comes to justice, particularly when determining offender compensation.
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Undang-Undang Nomor 35 Tahun 2014 tentang Perubahan atas Undang-Undang Nomor 23 Tahun 2002 Tentang Perlindungan Anak (Lembaran Negara Nomor 2014, Tambahan Lembaran Negara No. 5606)
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Acknowledgment
The author would like to thank all parties who have participated in all stages of writing this article. Hopefully, this article entitled " Analytical Study Implementation Diversion in Settlement Cases for Children Perpetrators Crime Theft at Tanjung Karang District Court"
will provide benefits for readers and writers and can overcome various immunization problems in the community.
