22

Virginia Garcia, et.al

LJIH 28 (1) March-2020, 22-35

LEGALITY: JURNAL ILMIAH HUKUM
Journal homepage: http://www.ejournal.umm.ac.id/index.php/legality

The Enforcement of Restorative Justice in
Indonesia Criminal Law
Virginia Garcia1*, Hari Sutra Disemadi2, Barda Nawawi Arief3
1 Faculty of Law, Diponogero University, Semarang, Central Java, 50275, Indonesia
* corresponding author: mvirginiag18@yahoo.com

Article Info

Abstract

Keywords:
Criminal Law; Law
Enforcement; Restorative
Justice

Restorative Justice is a philosophy, process, ideas, theories, and interventions that
emphasize the improvement of the harm caused or expressed by criminal
behaviour. This process is in sharp contrast to the standard way of handling
crime, as is commonly carried out in criminal law in Indonesia. The research used
in formulating this material is doctrinal research, in which this research uses a
normative legal research method. Restorative justice finds a foothold in the
underlying philosophy of the fourth principle of Pancasila, namely deliberation on
priorities in decision making. The purpose of this study of the settlement by
mediating victims of violators is to humanize the justice system, justice that can
answer the real needs of victims, perpetrators and the community. Contribution of
this research about restorative justice programs are based on the belief that the
parties to the conflict should be actively involved in restoring and mitigating the
negative impacts

Article History
Received: Dec 22, 2019;
Reviewed: Jan 2, 2020;
Accepted: Feb 20, 2020;
Published: Mar 31, 2020.
DOI:
10.22219/ljih.v28i1.10680

©2020; This is an Open Acces Research distributed under the term of the Creative Commons
Attribution Licencee (https://Creativecommons.org/licences/by/4.0), which permits unrestricted
use, distribution, and reproduction in any medium, provided the original works is properly cited.

INTRODUCTION
Law is a system that is closely related to people's lives (Prayitno 2012). In fact,
with the development of the dynamics of an increasingly complex society, the law
should also develop the following requirements that should be part of every age
(Disemadi & Roisah 2019). The development of human civilization is not only a
positive impact on human life, but inevitably also inevitably raises the seeds of a new
crime which requires a brisk and effective treatment towards all parties to all parties.
Reflecting on this, then in any law enforcement, legal awareness and values that grow
in the community is very important. As revealed by Mochtar Kusuma Atmadja, that
laws is made to be appropriate or notice of public perception (Salman 2010)
Deviations written above have created the conditions upon the rule of law (law
enforcement), which has became stagnant (Hipan, Nur, & Djanggih 2018).

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

Virginia Garcia, et al.

23

LJIH 28 (1) March-2020, 22-35

The justice system is a good and healthy course that will be able to ensure
fairness the security and safety of citizens, and the capability to generate trust and
respect from society, essentially a derivation of non-physical power that needs to be
preserved to achieve the sustainability for future generation. Law enforcement
systems constitute a unified system that incorporates the judicial system and the
system of judicial power. The criminal Justice System is a reasonability long stage
which would be implemented by law enforcement agencies according to their
respective authorities.
According to Soerjono Soekanto, law enforcement is an attempt to realize the
ideas and concepts of law, which is expected of the citizen to become a reality,.
therefore, the rule of law is a process that involves and also influenced by many
factors such as legal, law enforcement, facilities or support facilities, society and the
customs of the people (Soekanto 2002). Law enforcement (especially criminal law)
can be said to be a reaction to an unlawful act. The efforts of law enforcement
officers in responding to a tort, and addressing the problems of other law
enforcement is the core when discussing law enforcement. When viewed as
functional, the law enforcement system is a system of action, because in it there are
the many activities undertaken in the framework of equipment of state law
enforcement, including police, legislators, government agencies (bestuur), as well as
execution apparatus (Mansur & Gultom 2007), so in the law enforcement from she
establishment phase of the legislation (to prevent onrecht in potentie), and also the
prevention of nrecht in actu by law enforcement officials. Thus, the function of the law
as a matter of achieving justice, and also refers to the renewal of society is also an
action system, which since the order of law information to law enforcement, state
officials have to provide the necessary actions and reactions to the achievement of
the objectives of the law (Mansur & Gultom 2007).
Policies or efforts to tackle crime are necessarily an integral part of efforts to
protect society as asocial defence and efforts to achieve social welfare. However, by
tackling corruption and crime by illegal means, in fact, it has not yet given the
maximum effect for the perpetrators of crime. The truth is often found, that the
perpetrator is merely carrying out his sentence, without reflecting on what he has
done, what impact it has had on the victim and himself. There has not been a profer
demeanor as a self besides from repeating the act.
Law enforcement is often interpreted as an act of criminal punishment or
sanctions. Beside the identical to the application of procedural law, law enforcement
is also based on the regulation made. Bagir Manan said that Indonesian law
enforcement can be said to “communis opinio doctorum”, which means that law
enforcement is now considered to have failed in achieving the goals implied by the
Act (Rizki 2008).Therefore, an alternative law enforcement is chosen, namely, the

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

Virginia Garcia, et.al

24

LJIH 28 (1) March-2020, 22-35

Restorative Justice System, where the approach used is a socio-cultural approach and
not a normative approach.
Ironically, almost all crimes handled by the Indonesian criminal justice system
always end up in prison (Sirait & Cahyaningtyas 2019). However, prison is might not
be the best solution in solving crime problems, especially crime where “damage”
caused to victims and the community can still be restored so that conditions that
have been “damaged” can be returned to its original state. As well as eliminating the
adverse effects of prison. Responding to the crimes which possibly can be restored, a
concept of punishment known as restorative justice is introduced, which encouraged
the perpetrator to repair the harms that have been caused to the victim, his family,
and the community. For this reason, the main program is “a meeting place for
people” to find solutions to repair relationships and damage due to crime (peace)
(Disemadi, Hipan, & Rais 2014).
In some countries in the world, dissatisfaction and frustration with the formal
justice system or regeneration of the interest in preserving and strengthening the
customary law and traditional justice practices have led the authorities to call for
alternative responses to crime and social disorder. Many of these alternatives provide
the parties involved, and often also the surrounding community, which leads to the
opportunity to participate in resolving the conflict and overcome the consequences.
Based on those facts, the purpose of this study of the settlement by mediating
victims of violators is to humanize the justice system, justice that can answer the real
needs of victims, perpetrators and the community. Contribution of this research
about restorative justice programs are based on the belief that the parties to the
conflict should be actively involved in restoring and mitigating the negative impacts.
METHOD
The research used in formulating this material is doctrinal research, in which this
research uses a normative legal research method. The data used are secondary, i.e.,
data were obtained indirectly from its source or research object in the form of
primary, secondary and tertiary legal materials (Disemadi, Sutra, & Roisah 2019). The
data collecting method used in solving this problem was done by library research,
which was then analysed qualitatively. This analysis technique is a technique in which
the materials or legal literature will be studied so that it can provide an overview of
the research topic so that it helps the writer on making correct conclusions.
RESULTS AND DISCUSSION
The Development Concept of Restorative Justice in Indonesia
The problem of mediation in criminal cases, has already been on discussed at the
international level, which was known as The 9th Congress of the United Nations in
1995 and The 10th Congress in 2000 on Prevention of Crime and also Treatment of
Offenders and the International Conference on Reform of Criminal Law (Penal

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

Virginia Garcia, et al.

25

LJIH 28 (1) March-2020, 22-35

Reform international Conference) in 1999. The international meetings that encourage
the emergence of three international documents related to the issue of restorative
justice and mediation in criminal cases, namely:
a.
b.
c.

The Recommendation of the Council of Europe 1999 No. R (99) 19 on
“Mediation in Penal Matters”;
The EU Framework Decision 2001 on the Standing of Victims in Criminal
Proceedings; and
The UN Principles 2002 (draft ESC) on “Basic Principles on the Use of
Restorative Justice Programs in Criminal Matters”.

The background of his thinking was associated with ideas of criminal law renewal
(penal reform), and there was a problem associated with pragmatism (Sirait &
Cahyaningtyas 2019). Background ideas of “penal reform” among other ideas were
the victim safeguarding, the idea of harmonization, the idea of restorative justice, the
idea of overcoming the rigidity/formalities in the existing system, the concept of
avoiding the adverse effects of the criminal justice system, and penal system that
exists today, especially in the search for alternatives to imprisonment as an alternative
to imprisonment/alternative to custody and so on. Background pragmatism, among
others, to reduce stagnation or accumulation of matter (the problems of court case
overload) to simplify the judicial process (Arief 2008).
Restorative Justice that is often known as “reparative justice,” is an approach to
justice that focuses on the needs of the victims, the preparatory themself, and also
involves the community participation and not merely complies with legal
requirements or solely of sentences. In this case, the victim was also involved in the
process. While offenders are also encouraged to take responsibility for his actions, in
order to fix the mistakes, which usually be done by apologizing, refunding the stolen
money, or by performing community service/social work (Rofiq, Disemadi, & Jaya
2019).
Restorative Justice Approach focuses on the needs of both victims and
perpetrators. Beside addition, this approach Restorative Justice helps criminals to
avoid other crimes in the future. It is based on a theory of justice that considers
crime and offense, in principle, as a violation of the individual or community and not
to the state. Restorative Justice fosters dialogue between victims and perpetrators will
demonstrate the highest level of satisfaction of the victim and offender’s
accountability. Restorative Justice Concept is basically simple. Size of justice is no
longer based on retaliation in kind from the victim to the perpetrator (whether
physical, or psychological); however, a painful act was healed by providing support to
victims and required offenders to take responsibility to help families and
communities when needed. Simply, Restorative Justice itself means just solution

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

Virginia Garcia, et.al

26

LJIH 28 (1) March-2020, 22-35

involving the perpetrator, the victim, the family and other parties involved in a crime
and jointly seek solutions to the criminal offense and its implications by emphasizing
the restoration of the original state of justice for victims and perpetrators, is good
when law enforcement officials to think and act progressively that does not apply the
rules textually but need to break through rule (rule-breaking) because in the end it
was not the text of the law on justice that is desired by the community. Bagir Manan,
in one of his article, said that "Building joint participation between perpetrators,
victims, and community groups resolve an incident or crime. Placing the perpetrator,
the victim, and the community as “stakeholders” who work together and
immediately tried to find a settlement that is perceived to be fair to all parties (winwin solutions) (Arief 2008).
In the current criminal law in Indonesia, criminal cases cannot be settled outside
the court trial but in some instances it is possible to implement them. So far, what is
understood from the criminal law is that the criminal is an absolute consequence that
must exist as a retaliation to the person who committed the crime (Ansori 2014). So
the justification of the criminal lies in the existence of the crime itself. In criminal law
there is an ultimum remidium principle, which means that criminal sanctions are used
when other sanctions are already helpless, it can be understood that criminal law
could be the last solution, from the content of these principles implied the
recommendation of a caution- caution when trying to apply the criminal law to take
justice, why is that because the model of criminal sanctions are applied to date
(capital punishment, imprisonment, confinement, fines, revocation of certain rights,
announcements of judges' decisions and) is not only felt severe when lived, but on
the other hand it was also felt heavy during the criminal proceedings, the whole
investigation and prosecution process that allows the perpetrators to be arrested,
detained, searched, confiscated property related to criminal acts committed (even
which allows law enforcement sometimes to use violence valid), but also at the time
the crime was handed down.
Currently, in the legal system in Indonesia has begun to lead to the adoption of
the concept of Restorative Justice. But for now, still applied partial and looked urgent
very fundamental level. That can be found in Law Number 11 of 2012 on Juvenile
Justice System. As defined in Article 1, item 6 of Juvenile Justice System Law, which
states: “Restorative Justice is the completion of the criminal case involving the
perpetrator, the victim, the perpetrator's family/victim, and other relevant parties to
work together to find a fair settlement with the emphasis on restoring back to the
original condition, and not retaliation”.
As a form of application of Restorative Justice, the Law System of Juvenile
Justice provides institutions Diversion, as stipulated in Article 1 paragraph 7, which
asserts that “Diversion is the transfer of the settlement Son of the criminal justice

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

Virginia Garcia, et al.

27

LJIH 28 (1) March-2020, 22-35

process to a process outside of criminal justice.” Introduction to Restorative Justice
in in Indonesia's legal system still partial and not comprehensive, scattered in various
laws and regulations as well as some of the practices that have ever appeared, in
some law enforcement policies, including:
a. Supreme Court Circular (SEMA) No. 6 In 1959, states that the hearing child
must be conducted in private;
b. Supreme Court Circular (SEMA) No. 6 of 1987, 16 November 1987 concerning
the Child Assembly Rules of Conduct;
c. Circular of the Attorney General SE-002/ja/4/1989 concerning the prosecution
of the Child;
d. The jurisprudence of the Supreme Court No. 1644 K/Pid/1988 dated May 15,
1991, where the ratio decidendi verdict mentioned that if someone is violating
customary law, then Head and The Leaders of Indigenous reacted adat
(customary sanctions) then the question cannot be filed again (for the second
time) as a defendant in the trial Courts State (District Court) with the same
charges in violation of the law exists and imposed imprisonment under the
provisions of the Criminal Code (Article 5 (3) sub b of law DRT No. 1 of 1951)
that in such circumstances the devolution file Prosecutor demands in the case, as
well as the District Court should be declared unacceptable (niet ontvankelijk
verklaard);
e. Letter of the Attorney General for General Crimes B-532 / E / 11/1995, 9 Nov
1995 on Technical Guidelines for Prosecution Against Children;
f. Presidential Decree No. 8 of 2002 on Providing Guarantee Legal Certainty to
Debtor Has Completed Its obligations or Legal Action to Debtor Not Finish His
task Based Shareholder Settlement Obligations;
g. Memorandum of Understanding No. 20/PRS-2/KEP/2005 DitBinRehSos
MOSA RI and RI Depkumham DitPas about coaching outside the institution for
children in conflict with the law;
h. Circular of the Supreme Court Chief Justice MA / Kumdil/31/I/C/2005 on the
duty of every District Court held a special hearing room and lounges for children
to be tried;
i. Appeal Chairman MARI to avoid arrest in children and prioritize action decision
rather than prison, July 16, 2007;
j. Police Regulation 10/2007, July 6th, 2007 on the Unit for Women and Children
(PPA) and 3/2008 on the Establishment of RPK and Witness Examination
Procedures and / Victims of Crime;
k. TR / 1124 / XI / 2006 of Kabareskrim Police, 16 Nov 2006 and TR /395/ VI /
2008, 9 June 2008, on the Implementation of Diversion and Restorative Justice
In Case Handling Child Actors And Fulfilment Best Interests of the Child In
Case of Children Good As Perpetrators, Victims or Witness;

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

Virginia Garcia, et.al

28

LJIH 28 (1) March-2020, 22-35

l.

Agreement between the Ministry of Social Affairs Decree No. 12 / PRS-2 /
KPTS / 2009, the Ministry of Justice and Human Rights of the Republic of
Indonesia Number: M.HH.04.HM.03.02 FY 2009, the Ministry of National
Education No. 11 / XII / KB / 2009, the Ministry of Religious Affairs Decree
No. 06 / XII / 2009, and the RI State Police No. B / 43 / XII / 2009 on the
Protection and Social Rehabilitation of Children in Conflict with the Law, dated
December 15, 2009;
m. Chairman of the Joint Decree of the Supreme Court, Attorney General, Chief of
the National Police, Minister of Justice and Human Rights, the Minister of Social
Affairs, Minister of Women and Child Protection of Indonesia, 166 / KMA /
LCS / XII / 2009, 148 A / A / JA / 12/2009, NO. B / 45 / XII / 2009,
NO.M.HH-08 HM.03.02 2009, NO. 10 / PRS-2 / KPTS / 2009, NO. 02 / Men
PP and PA / XII / 2009 dated December 22, 2009 on the Handling of Children
against the Law;
n. National Police Chief Pol letter No: B / 3022 / XII / 2009 / SDEOPS 14
December 2009 on the Handling of Cases Through the Alternative Dispute
Resolution (ADR);
o. Police Chief Regulation of the Republic of Indonesia Number 7 of 2008 on Basic
Guidelines and Implementation Strategy Community Policing in the
Implementation of the Police Duties;
p. Law Number 11 of 2012 on Juvenile Justice System; and
q. Law No. 12 of 1995 concerning Corrections.
Forms of Law Enforcement in Providing Restitution to Trafficking Victims
According to Satjipto Raharjo, law enforcement is an attempt to realize the ideas
of the rule of law; Social benefit and justice become a reality. The process of the third
embodiment of this idea which is the essence of law enforcement. Law enforcement
also be interpreted also the administration of justice by law enforcement officers and
every person who has an interest and in accordance with their respective authorities
under applicable law (Hardjaloka 2015).
Thus the rule of law is a system that involves the compatibility of values and
norms as well as the real behaviour of Indonesian society. The rules then serve as
guidelines for the behaviour of the people of Indonesia is considered appropriate
(Gukguk & Jaya 2019). The existence of such guidelines aims to create, maintain and
sustain peace in social life. According to law enforcement, Soerjono Soekanto not
merely means the implementation of the legislation. In fact, there is a tendency to
interpret the rule of law as the implementation of judicial decisions. This
understanding contains a weakness, for the implementation of the law or a court
decision can disturb the balance in the social life of Indonesian society.

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

Virginia Garcia, et al.

29

LJIH 28 (1) March-2020, 22-35

The use of criminal law in combating crime, merely curing the symptoms
(kurieren am symptoms) and not as a factor that eliminates the causes of crime. The
existence of criminal sanctions is an attempt to address the symptom or result of the
disease and not as a drug (remedium) to resolve the cause of the disease (Arief 2005),
and the criminal law has a limited capacity in the fight against crime is so diverse and
complex. In connection with the weakness of the criminal law, then Ruslan Saleh
(Saleh 1983), state that:
The indecision community towards greater criminal law in connection with the
implementation of criminal law practice is too normative-systematic. The limits of
criminal law as a means of criminal policy in crime prevention are:
a. Because these complex crimes that are beyond the scope of criminal law;
b. The criminal law is only a small part (sub-system) of the means of social
control that is not possible to overcome the problem of evil as a
humanitarian issue and very civil complex (as socio-psychological, sociopolitical, socio-economic, socio-cultural, and so on);
c. The use of criminal law in tackling crime is only a “kurieren am symptom”,
therefore the criminal law is only a symptomatic treatment, and not a
causative treatment;
d. Criminal law sanctions are “remedium” containing the contradictory nature
/ paradoxical and contain elements and negative side-effects;
e. Criminal system is fragmentary and individual / personal, non-structural /
functional;
f. The limited range of criminal sanctions and criminal sanctions formulation
system that is rigid and imperative; and
g. The working/functioning of the criminal law requires a means of support are
more varied and more demanding of high fees.
Based on the theory, Barda Nawawi Arief (Arief 2005) explained that: Prevention
and control of crime must be done with an integrated approach; No balance penal
and non-penal. Seen from the point of criminal politics, the most strategic policy is
through non-penal facilities because it is preventive, and because of the limitations or
weaknesses penal policy, which is fragmentary/ simplistic/ no structural-functional;
symptomatic / no causative/ not eliminative; individualistic/ Offender-oriented /
not victim-oriented; more repressive / no prevention; must be supported by
infrastructure with high costs.
The approach with non-penal facilities which cover an area of prevention of
crime (crime prevention) is vast. Prevention of crime is the main purpose of criminal
policy. The statement that is often expressed in the UN Congress on “the prevention
of crime and the treatment of offenders,” namely:

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

Virginia Garcia, et.al

30

LJIH 28 (1) March-2020, 22-35

a. Crime prevention and criminal justice should not be treated/viewed as a separate
problem and dealt with a simplistic and fragmentair method, but should be seen as
a more complex problem and dealt with policies/actions extensive and thorough;
b. Crime prevention should be based on the elimination of the causes and
conditions that cause crime. Efforts to eliminate such causes and conditions that
should be a “basic strategy / fundamental in the prevention of crime (the basic
crime prevention strategy)”; and
c. The leading cause of crime in many countries is social inequality, racial
discrimination and discrimination national, low standard of living, unemployment
and its relationship with economic development, political systems, values, sociocultural and societal changes, also concerning he world economic order /
international new. Based on the statement in the UN Congress on the above, it
appears that the policy of crime prevention will not only cure or fostering the
convicts (criminals), but crime prevention.
The emergence of the concept of criminal law enforcement with non-penal
facility here which is still yet to be developed further in the process of resolving
criminal matters in Indonesia. Most people still often misinterpret the concept of
“Indonesia is a State of Law” to consider all legal issues must be resolved through
legal channels especially criminal law. The concept of retaliation in retributive theory
is now too old-fashioned, it will be applied continuously in Indonesia because of the
law enforcement process should not only think in narrow to resolve the legal
problems that occurred at that moment (Candra 2013). Criminal law enforcement
process that is still based on the Criminal Code / WvS, which is inherited from the
Dutch still uplift and allow the rise in non-penal law enforcement in particular the
principles of Restorative Justice.
In fact, the law may not be straight if the law itself or not reflect the feelings or
values of justice in the society. Law is not possible to ensure justice if the material is
largely a legacy of the past, or who are born and realized in the form of legislation
because it is based on the interests of a particular group or because of pressure from
outsiders/ foreigners who did not reflect the value of justice that live and thrive in
society if the law itself or not reflect the feelings or values of justice in the society.
Law is not possible to ensure justice if the material is largely a legacy of the past, or
who are born and realized in the form of legislation because it is based on the
interests of a particular group or because of pressure from outsiders/foreigners who
did not reflect the value of justice that live and thrive in society if the law itself or not
reflect the feelings or values of justice in the society (Marzuki 2017). Law is not
possible to ensure justice if the material is largely a legacy of the past, or who are
born and realized in the form of legislation because it is based on the interests of a

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

Virginia Garcia, et al.

31

LJIH 28 (1) March-2020, 22-35

particular group or because of pressure from outsiders/ foreigners who did not
reflect the value of justice that live and thrive in society.
The concept of Restorative Justice is a process law enforcement even though the
process is not touching the sides of criminal law at all, but more emphasis on the
needs of the victims, the perpetrators, and also involves the participation of the
community, and not merely comply with legal requirements or solely of sentences
(Pratiwi 2019). In this case, the public would assume that the process is non-penal
law enforcement is not going to bring about justice for those who judged guilty but
should be analysed further that criminal punishment is also not always provide justice
for both parties.
Call it the case of an accident resulting in a person lost his life. If such cases are
reported and handled by the authorities, the offender will be sentenced to prison (for
example) for several years and may be sentenced to a fine. If the offender does not
pay the fine, he could have added criminal penalties only in jail a maximum of 6 (six)
months and so he is free, what happens? Criminal liability has been completed, the
process of criminal punishment is over and she could live her life, as usual, forget
what has happened. He might not going to feel guilty anymore owing to the fact that
it could have been counted as a compensation to pay for his crime. What might he
repeated the same thing might happen? Of course, it is very possible. While
restorative justice concept, the accident victim's family could solve this problem by
considering any losses in the suffering due to the death of the victim. For example,
the responsibility of what carried the victim during his lifetime (eg, the victim is a
father who finance their children) can then intervene with offenders, requires the
offender to apologize to the families of the victims, asked for compensation to the
perpetrator as a liability for the actions that have been done, such as a sum of money
whose value is measured in a certain period of time, and several other activities. In
our opinion, something like this would be an impression on the perpetrator because
he has new responsibilities as a result of negligence does. Actors who have an
obligation like this is undoubtedly a conscious effort to make amends and be careful
so that one day he did not make the same mistake, so it does not result in a fatal
thing for himself and others.
However, if the competent authorities still process the offense, did not rule on
the application of the concept of Restorative Justice, as in the concept design of the
draft of Criminal Law or Rancangan Kitab Undang-Undang Hukum Pidana (RKUHP)
several articles stating the possibility "of a punishment without crime" that in Article
95 RKUHP which reads:
(1) Criminal social work can be imposed on the defendant Crime punishable by
imprisonment of less than 5 (five) years and the judge handed down

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

Virginia Garcia, et.al

32

LJIH 28 (1) March-2020, 22-35

imprisonment of not more than six (6) months or fined not more than
Category I.
(2) Social work in criminal punishment as referred to in paragraph (1), the judge
shall consider:
a. recognition of the defendant against Crime committed;
b. working ability of the defendant;
c. approval after the defendant explained about the purpose and all matters
relating to criminal social work;
d. social history of the accused;
e. Safety protection of the defendant;
f. political and religious beliefs of the defendant; and
g. the ability of the defendant to pay a fine.
(3) The implementation of social work criminals should not be commercialized.
The renewal of the material criminal law in the form of the RKUHP is an effort
to realize the ideals of the rule of law. So that the RKUHP is an embodiment of the
personality of the Indonesian nation which not only prioritizes individual interests or
prioritizes the interests of the state. Renewal of criminal law is to improve existing
law by replacing existing law with a better law. So that the RKUHP is not just
making changes deemed necessary, but is a manifestation of the true independence
and sovereignty of the nation. Even legal reforms determine the values that form the
basis of the Indonesian nation so that the RKUHP is a planned tool of the social and
cultural transformation of society. One such development is the emergence of a
conflict resolution idea that is not only focused on litigation process but is resolved
by the parties to the conflict by recovering the existing situation. The emergence of
this concept is mainly to provide a balance of attention between criminal law
stakeholders, namely the perpetrators, victims, the community and the state. This
balance can also be seen in the regulation of crime with the regulation of actions and
the possibility of a combined sanction between criminal acts and acts considering the
diversity of crime issues, as well as awareness of the importance of appropriate
therapy for victims of crime.
Actually, the concept of restorative justice is a form of customary law that has
existed for a long time ago in Indonesian society. So that the recognition of
customary law in the RKUHP aims to fulfil a sense of justice that lives in the
community by restoring conditions that have been damaged or the process by which
the parties concerned jointly solve ways of reaching an agreement after a criminal act
including its implications in the future. Thus, restorative justice in handling crime is
not only seen from the perspective of the law but is also associated with aspects of
moral, social, economic, religious and local customs and various other
considerations.

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

Virginia Garcia, et al.

33

LJIH 28 (1) March-2020, 22-35

With the arrangement of the Restorative Justice in RKUHP, the possibility of
achieving justice for all parties, both the victim and the perpetrator is not impossible,
because once again the criminal law should be the last bullet used in tackling legal
issues that exist in Indonesia. Law enforcement should not just be seen as retaliation
and as a matter of punishment towards the perpetrator, but also have to come to the
stage of prevention and control of symptoms so that no similar things in the future.
CONCLUSION
The concept of Restorative Justice in Indonesia already exists in some
legislation, but the most known to the public before the diversion concept adopted
in Law Number 11 Year 2012 on Juvenile Justice System, by enabling the transfer of
children from the settlement of the criminal justice process to outside the criminal
justice process. Penal Code as the basis for the implementation of law enforcement
in Indonesia are still not embracing the concept of restorative justice so that people
still always bound within the paradigm that all legal issues must be resolved with the
criminal law. The criminal law is the main way to solve problems.
No law enforcement process that is both penal and non-penal. The concept of
criminal law enforcement with non-penal facility is still not developed further in the
process of resolving criminal matters in Indonesia, because it is inefficient and can’t
provide justice. In fact when examined further, not all problems are solved through
penal criminal law, guarantee the achievement of justice. Restorative Justice here can
be used as a new alternative in solving a crime problem, in a form of non-penal
enforcement. Notably, the concept of Restorative Justice itself has been reappointed
in the realm of criminal law nowadays according to RKUHP which allowing a “no
criminal convictions” concept”.
REFERENCES
Ansori. 2014. “Criminal Justice System of Children in The Law Number 11 of 2012
(Restorative Justice).” Rechtsidee 1(1): 11–26.
Arief, Barda Nawawi. 2005. Beberapa Aspek Kebijakan Penegakan Dan Pengembangan
Hukum Pidana. Bandung: Citra Aditya Bakti.
———. 2008. Mediasi Penal Penyelesaian Perkara Diluar Pengadilan. Semarang: Pustaka
Magister.
Candra, Septa. 2013. “Restorative Justice: Suatu Tinjauan Terhadap Pembaharuan
Hukum Pidana Di Indonesia.” Jurnal Rechts Vinding: Media Pembinaan Hukum
Nasional 2(2): 263–77.
Disemadi, Hari Sutra, Nasrun Hipan, and M. Ikhwan Rais. 2014. “Tinjauan Yuridis
Perlindungan Hukum Terhadap Korban Dan Pelaku Kejahatan.” Universitas
Muhammadiyah Luwuk.

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

Virginia Garcia, et.al

34

LJIH 28 (1) March-2020, 22-35

Disemadi, Hari Sutra, and Kholis Roisah. 2019. “Urgency of the Contempt of Court
Criminalization Policy to Overcome Harassment Against the Status and Dignity
of Courts.” Brawijaya Law Journal 6(2): 224–33.
Disemadi, Hari Sutra, and Kholis Roisah. 2019. “Kebijakan Model Bisnis Bank
Wakaf Mikro Sebagai Solusi Pemberdayaan Ekonomi Masyarakat.” Law Reform
15(2): 177–94.
Gukguk, Roni Gunawan Raja, and Nyoman Serikat Putra Jaya. 2019. “Tindak Pidana
Narkotika Sebagai Transnasional Organized Crime.” Jurnal Pembangunan Hukum
Indonesia 1(3): 337–51.
Hardjaloka, Loura. 2015. “Criminal Justice System of Children: An Overview
Restorative Justice Concept in Indonesia and Other Countries.” Jurnal Dinamika
Hukum 15(1): 73–81.
Hipan, Nasrun, Nirwan Moh Nur, and Hardianto Djanggih. 2018. “Problematika
Penyelesaian Sengketa Tanah Di Lokasi Tanjung Sari Kabupaten Banggai.” Law
Reform 14(2): 205–19.
Mansur, Dikdik M. Arief, and Elisatris Gultom. 2007. Urgensi Perlindungan Korban
Kejahatan Antara Norma Dan Realita. Jakarta: Raja Grafindo Persada.
Marzuki, Abdul Ukas. 2017. “Analisa Perlindungan Hukum Terhadap Perempuan
Dan Anak Korban Perdagangan Manusia.” Jurnal Yustisiabel 1(1): 100–117.
Pratiwi, Cekli S. 2019. “Optimizing Restorative Justice Program For The Best
Interest Of The Children In Reforming Juvenile Justice System In Utah.”
Legality: Jurnal Ilmiah Hukum 27(2): 242–58.
Prayitno, Kuat Puji. 2012. “Restorative Justice Untuk Peradilan Di Indonesia
(Perspektif Yuridis Filosofis Dalam Penegakan Hukum In Concreto).” Jurnal
Dinamika Hukum 12(3): 407–20.
Rizki, Rudi. 2008. Refleksi Dinamika Hukum (Rangkaian Pemikiran Dalam Dekade
Terakhir). Jakarta: Perum Percetakan Negara Indonesia.
Rofiq, Ahmad, Hari Sutra Disemadi, and Nyoman Serikat Putra Jaya. 2019. “Criminal
Objectives Integrality in the Indonesian Criminal Justice System.” Al-Risalah
19(2): 179–90.
Saleh, Roeslan. 1983. Hukum Pidana Sebagai Konfrontasi Manusia Dan Manusia. Jakarta:
Ghalia Indonesia.
Salman, Otje. 2010. Filsafat Hukum (Perkembangan Dan Dinamika Masalah). Bandung:
Refika Aditama.
Sirait, Trinita Yulinda, and Irma Cahyaningtyas. 2019. “Restorative Justice Approach
In The Settlement Of Children’s Cases In Indonesia.” Legality: Jurnal Ilmiah
Hukum 27(2): 232–41.
Soekanto, Soerjono. 2002. Faktor-Faktor Yang Mempengaruhi Penegakan Hukum.

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

Virginia Garcia, et al.

35

LJIH 28 (1) March-2020, 22-35

Cetakan Ke. Jakarta: Raja Grafindo Persada.

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600