penal mediation : the development of penal code policy dr . eva achjani zulfa.,sh.,mh
DESCRIPTION
PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH. Fa culty of Law Universitas Indonesia 2011. Penal Mediation. Civil. - PowerPoint PPT PresentationTRANSCRIPT
![Page 1: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/1.jpg)
Faculty of LawUniversitas Indonesia
2011
![Page 2: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/2.jpg)
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 Criminal
![Page 3: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/3.jpg)
The Principle of Common Law The criminal case can
not be resolved outside the courts
![Page 4: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/4.jpg)
Afdoening Buiten ProcessArticle 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
within the time specified by him.
![Page 5: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/5.jpg)
The 9th /1995 Congress of United Nations (The Prevention of Crime. And The Treatment of Offenders)
"privatizing some law enforcement and justice functions"
![Page 6: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/6.jpg)
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 corporation)
![Page 7: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/7.jpg)
Other AimsReduce the piling up of case in the court;Encourage the judges to impose conditional
criminal, mediation, restitution or compensation especially for the perpetrators which is young ages.
![Page 8: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/8.jpg)
"International Penal Reform Conference"London, 13-17 April 1999
"to enrich the formal judicial system with informal, locally based, dispute
resolution mechanisms which meet human rights
standards".
![Page 9: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/9.jpg)
"The Committee of the Council of Europe” 1999
Mechanism of mediationand
Restorative justice
as mechanism to provide a place to the victims in criminal case resolution
![Page 10: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/10.jpg)
EU Council Framework Decision2001
Penal mediation
the search prior tool during criminal proceedings, for negotiated solution between
the victim and the author of the offence, mediated by a competent person.
![Page 11: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/11.jpg)
Restorative justiceRestorative 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
affected community.
![Page 12: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/12.jpg)
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. 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 affected community. (Dignan)
![Page 13: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/13.jpg)
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 encouraged to play an active role in the justice process. Rather than the current focus on offender punishment, restoration of the emotional and material losses resulting from crime is far more important.. (Mark Umbreit)
![Page 14: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/14.jpg)
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 Puniendi2.Asas Nulla poena sine legeFormal Criminal Law: The existing procedures
must be changed
![Page 15: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/15.jpg)
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 approach can be perfomed quickly and accurately.
![Page 16: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/16.jpg)
Supporting factorsConferenceAccess to JusticeAlternative Criminal Case Resolution Means of reconciliation As basis of ….
![Page 17: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/17.jpg)
Conference
Victim Offender Mediation (VOM : mediation between perpetrators and victims) is a forum that encourages a meeting between the perpetrators and victims assisted by the mediator as a coordinator and facilitator in the meeting
![Page 18: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/18.jpg)
ConferenceConferencing 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 indirectly, for any crime that occurs or they have a high awareness and interest of the outcome of their conference and may also participate in pursue the success of the process and purpose.
![Page 19: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/19.jpg)
Conference
Circles, a model of the application of restorative justice are the most widely involve compared with the previous two forms, namely the forum that not only the victim, perpetrator, family, or mediators, but also members of the public who feel concerned with the case.
![Page 20: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/20.jpg)
Problems
The position of perpetrator and victim
Out of court settlement unknown in the SPP in Indonesia
![Page 21: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/21.jpg)
![Page 22: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/22.jpg)
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 dollars.
![Page 23: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/23.jpg)
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. In this case if the offer is not implemented by the prosecutor, the suspected can submit it to the prosecutor.
![Page 24: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/24.jpg)
Jan RemelinkThe settlement of minor criminal matters The suspect escaped from a painful
experienceFor the prosecution it would constitute a
very significant time savings so that the judicial’s power can give attention to the most important matters.
![Page 25: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/25.jpg)
Important …. The suspect should be freely and
independently may consider the merits of the choice by using this institution or not and should not
be done to pressure them.
![Page 26: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/26.jpg)
AustriaPasal 90 Prosedure Code
The Public Prosecutor can divert a penal case from the courts if the suspect is willing to acknowledge
the deed and prepared to deal with its causes
![Page 27: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/27.jpg)
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 obligations which indicate a willingness to refrain in future from the type of behaviour which had led to the deed.
![Page 28: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/28.jpg)
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 willingness to not repeat the criminal act.
![Page 29: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/29.jpg)
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 case.
![Page 30: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/30.jpg)
![Page 31: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/31.jpg)
Reality in the SocietyO (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 was stolen by the perpetrators’s parents to the
victim.
![Page 32: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/32.jpg)
Reality in the SocietyCase 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 girl’s parents met and consulted) both then
mated.
![Page 33: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/33.jpg)
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
that the victim’s family also has forgiven the perpetrator, then the peace effort are pursued.
![Page 34: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/34.jpg)
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 aspects...
![Page 35: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/35.jpg)
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 subsidiary again but the actions with the peaceful settlement among the parties, did not constitute a crime can be punished again.
![Page 36: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/36.jpg)
Law Article 97 of Criminal Procedure Code:
Material CompensationLaw No. 23 of 1997: Primum remidiumLaw No. 22 of 1997 : The participation of
society in the rehabilitation of drugs addict. Law No. 3 of 1997 : Prior to pronounce its
verdict, the judge provides the opportunity for parents, guardians, or foster parents to bring everything to matters that are beneficial to children.
![Page 37: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/37.jpg)
BreakthroughArticle 54 and 100 of RKUHPExpansion the provisions of Article 82 of Penal
CodeHarmonization of Formal Criminal Law and
Criminal Law Material:
![Page 38: PENAL MEDIATION : THE DEVELOPMENT OF PENAL CODE POLICY DR . EVA ACHJANI ZULFA.,SH.,MH](https://reader036.vdocuments.net/reader036/viewer/2022062517/56813b26550346895da3e669/html5/thumbnails/38.jpg)