Prevention & Practices - Presented by : John Izaac Minotty Pattiwael, S.H. (Director of Mawar Saron Legal Aid Institution, Republic of Indonesia) ...
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Prevention & Practices
Presented by :
John Izaac Minotty Pattiwael, S.H.
(Director of Mawar Saron Legal Aid Institution,
Republic of Indonesia)
Geneva, Tuesday, 27th January 2015
World Congress on Juvenile Justice
Prevention Method : Legal Counselling Our office hold numbers of legal counselling through seminars & Legal Clinic periodically, which aim to provide sufficient legal knowledge to children, parents, school teachers, and the society on the prevention of juvenile delinquency; Seminars usually held in schools, churches, community centres, and detention centres; Materials for the seminar based on the dissemination of the recent positive laws on Juvenile Justice that currently in force : Law No. 35/2014 on the Amendments of Law No. 23 /2002 on Child Protection Law No. 11/2012 on Juvenile Justice System Herewith I attached the Substantive Issues & pamphlet that we are using for prevention method through legal counselling in a form of a Seminar & Legal Clinic, etc.
Substantive Issues on Juvenile Justice System in the Republic of Indonesia
Law No. 11 / 2012 on Juvenile Justice
System
In general, the basic difference between Law No. 11/2012 on Juvenile Justice System and Law
No. 3/1997 on Children’s Court is the new principal of Restorative Justice which implemented
through diversion (Art.5 & 6 on Law No. 11/2012)
Several principal aspect that has been changed through Law No. 11/2012 :
a. Age of criminal liability on children : 12 years old – 18 years old (compare to Law No.
3/1997 : 8 years old - 18 years old)
b. The new terminology is Child before the Law consist of Children in Conflict with the Law,
Child Victim & Child Witness (comp. Law No. 3/1997 terminology used “Naughty Children”)
c. Obligation to Police Investigator, Public Prosecutor & Judge to implement diversion
measure in every stage of the case, pursuant to Art. 7 Law No. 11/2012 on Juvenile Justice
System (Diversion process is unknown to Law No. 3/1997)
d. Rigid regulation that stipulates that detention toward Children MAY NOT be implemented in
a condition where the child obtains a warranty from parent/custodian/institution stating
that stating that the Child shall not escape, eliminate or tamper with evidence and/or
repeating the criminal act, pursuant to Art. 32 (1) Law No. 11/2012 (not stipulated in Law
No. 3/1997)Restorative Justice
Restorative Justice is a process whereby all parties with a stake in
particular offence come together to resolve collectively how to deal with
the aftermath of the offence and its implication for the future (Tony
Marshall)
Restorative Justice : an alternative delinquency sanction focused on
repairing the harm done, meeting the victim’s need, and holding the
offenders responsible for his or her actions. Restorative Justice sanctions
use a balanced approach, producing the least restrictive disposition
while stressing the offender’s accountability and providing relief to the
victim. The offender may be ordered to make restitution, to perform
community service, or to make amends in some other way that the court
orders. (Bryan A. Garner (Editor in Chief) : “Black’s Law Dictionary, 9th
Edition” : 2009, page. 1428)Flow Chart : Criminal Case for children under 12
years old (Art. 21 Law No.11/2012)
CHILDREN IN CONFLICT WITH THE LAW
Police Investigator-Probation Officer-
Social Worker
Child being returned to
parent Participation in educational programs, coaching
and mentoring conducted in government agencies
or Institution of Social Welfare at Central & Local
levels, no longer than 6 (six) monthsFlow Chart : Diversion according to Law No.
11/2012
Diversion can only be implemented
Children in
on criminal penalty under 7 (seven)
Conflict with
years of imprisonment & not a
the Law
repetition of a criminal act
Diversion
MUST be
implemented
District Court
Police Supreme Court Regulation No.
Prosecution 4 / 2014 on Guidelines of the
Investigation
Implementation on DiversionFlow Chart : Diversion according to
Supreme Court Regulation No. 4 / 2014
Children in Head of District Court issue a Upon receiving the Court
Conflict with Court Order regarding the Order regarding the Diversion
the Law Diversion Agreement Agreement, the Presiding
Judge of the case issue a Court
Order to terminate the case
Diversion
District Court
Agreement
Failure to fulfil the Diversion
Diversion Diversion Agreement (based on the
Facilitator Forum report of Probation Officer of
the Correctional Centre
addressed to the presiding
Judge) resulted in the re-
opening of the caseChildren’s Rights in General (According to Child Protection Law – Law No. 35/2014 jo. Law No. 23/2002 Children’s Rights Regulation Right of Identity Article 5 Right on religious practice Article 6 Right to know his/her parents, raised, and being cared by his/her own parents Article 7 Right on access to healthcare & Social Security Article 8 Right to education, protection from sexual crimes & abuse by : teacher, educator, fellow Article 9 student and/or other party, Child with Disability has right to special education Right to rest, play and having a recreation activity Article 11 Protection (conducted by teacher, educator, public servant, and/or the society) toward Article 54 children within school environment from physical abuse, psychological abuse, sexual crime, and other crimes perpetrated by teacher, educator, fellow student and/or other party
Child’s Protection in General (According to Child Protection Law – Law No. 35/2014 jo. Law No. 23/2002 Children’s Rights Regulation Protection from the abuse of political activity Article 15 a Protection from involvement in arm conflict Article 15 b Protection from involvement on social unrest Article 15 c Protection from involvement on violence act Article 15 d Protection from involvement in war Article 15 e Protection from sexual crime Article 15 f Protection from being object of abuse, torture, and inhuman sentencing Article 16 (1)
Protection for Children before the Law (According to Child
Protection Law (CPL) – Law No. 35/2014 jo. Law No. 23/2002 &
Juvenile Justice System (JJS)-Law No. 11/2012)
Protection for Children Confronting the Law Regulation
Arrest, detention or imprisonment toward children ONLY applicable according to the law Article 16 (3) CPL
and can ONLY be implemented as last resort
Detention toward children MUST NOT be implemented in terms that the Child has Article 32 (1) JJS
parental/custodian and/or an institutional warranty stating that the Child shall not
escape, eliminate or tamper with evidence and/or repeating the criminal act
Detention toward children can ONLY be implemented under these circumstances : the Article 32 (2) JJS
child has reached 14 (fourteen) years of age or above & suspected of committing a crime
with 7 (seven) years imprisonment or above
Every Child who becomes victim of crime or perpetrator of criminal act having the RIGHT Article 18 CPL
to a legal counsel and other assistance
Within each stage of investigation, a Child MUST be provided with Legal Aid and Article 23 (1) JJS
accompanied by community supervisor or other supervisorProtection for Child Victim & Child Witness (According to
Child Protection Law (CPL) – Law No. 35/2014 jo. Law No.
23/2002 & Juvenile Justice System (JJS)-Law No. 11/2012)
Protection for Child Victim & Child Witness Regulation
Every Child who becomes victim of crime or perpetrator of criminal act having the RIGHT to a Article 18 Law
legal counsel and other assistance CPL
Child Victim and/or Child Witness having ALL the rights of protection pursuant to the governing Article 89 JJS
law
Child Victim & Child Witness also have the rights : Article 90 (1)
a. Medical Rehabilitation & Social Rehabilitation JJS
within or outside the institution;
b. Safety protection (physically, mentally & socially);
c. easy access to information regarding the progress on his/her case investigation.
In a condition where Child Victim and /or Child Witness unable to appear & testify before the Article 58
court, the presiding judge can order the Child Victim & Child Witness to give his/her testimony : (3a) JJS
“Outside of the court through the mean of electronic recorder which implemented by
Community Supervisor in the presence of Police Investigator or Public Prosecutor and an
Advocate or other provider of legal aid.”Regulation & Criminal Punishment concerning the
Sexual Crime against Children
Regulation Criminal Punishment
Art. 81 Law No. 35/2014 on Amendment of -Imprisonment : minimum of 5 (five) years and maximum
Law No. 23/2002 on Child Protection (Sexual of 15 (fifteen) years;
Intercourse with Minor) -Penalty : maximum of Rp. 5.000.000.000 (five billion
Rupiahs)
-1/3 (one third ) criminal punishment will be added to the
imprisonment time if the perpetrator is : Parent, Custodian,
babysitter, teacher, or educator;
Art. 82 Law No. 35/2014 on Amendment of - Imprisonment : minimum of 5 (five) years and maximum
Law No. 23/2002 on Child Protection of 15 (fifteen) years;
(Indecent Conduct to Minor) -Penalty : maximum of Rp. 5.000.000.000 (five billion
Rupiahs)
-1/3 (one third ) criminal punishment will be added to the
imprisonment time if the perpetrator is : Parent, Custodian,
babysitter, teacher, or educator;
Art. 14 (b) of the Presidential Instruction No. To prosecute the perpetrator of sexual crime against
5/2014 on the National Movement on Anti- children as severe as possible.
Sexual Crime against ChildrenComparison of Diversion Process
Republic of Philippines
Children in Diversion can only be
conflict with implemented on criminal
the Law penalty under 6 (six) years
of imprisonment
Punong Barangay Law Enforcer Court
& Prosecutor Diversion (Sec.4 (i) Juvenile Justice &
Welfare Act – Rep. Act 9344 Philippines)
Family Conferencing, : an alternative, child-appropriate
Mediation & process of determining the responsibility
Conciliation & treatment of a child in conflict with the
law on the basis of his/her social,
Contract of Diversion :
Diversion Program
cultural, economic, psychological or
educational background without
resorting to formal court proceedings.Comparison of Diversion Process
Kingdom of Thailand
Diversion can only be
Children in implemented on criminal
Conflict with penalty under 5 (five) years
the Law imprisonment
Diversion accepted and reported
by the Prosecutor to the Court in
Dept. of Observation & which the court shall issue a
Protection provisions & directives within 30
(thirty) days after the
Prosecutor’s report being
received
Correctional &
Prosecutor
Recovery Plan
Diversion not accepted in which
the Correctional & Recovery Plan
will be returned to the Dept. of
Observation & Protection to be
corrected or the legal process
shall proceed accordinglyYou can also read
