40 http://sosains.greenvest.co.id
JURNAL
SOSAINS
JURNAL SOSIAL DAN SAINS
VOLUME 3 NUMBER 1 2023
P-ISSN 2774-7018, E-ISSN 2774-700X
CONCEPTS AND PROVISIONS FOR RECOVERY
OF A CASE THROUGH A JUSTICE-BASED
RESTORATIVE APPROACH BY THE
PROSECUTOR'S REGULATION NO. 15 IN THE
YEAR 2020
Daffa Elvaretta, Achmad Ghozali Nasid, Anisa Aulia Fitri, Yunisha
Dena Putri
University Lampung
Email : daffaelvaretta14@gmail.com, achmadghozalinasid@gmail.com,
anisaauliaftr@gmail.com, yunishadena20@gmail.com
Keywords:
Attorney of the
Republic of
Indonesia, Crime,
Restorative Justice,
Termination of
Prosecution
ABSTRACT
Background: The Restorative Justice Approach is one of the solutions for settling
criminal cases, namely by prioritizing the subject matter of criminal acts and carrying
out settlements outside the court, as well as restoring the situation. The Attorney
General's Office of the Republic of Indonesia issued a regulation in the form of
Attorney General's Regulation Number 15 of 2020 concerning the Termination of
Prosecution Based on Restorative Justice.
Purpose: To find out and analyze the implementation of Restorative Justice by the
Public Prosecutor regarding the Prosecutor's Regulation Number 15 of 2020
concerning Termination of Prosecution Based on Restorative Justice by looking at
several requirements that must be met.
Method: The research method used is normative juridical, the type of data used in this
research is qualitative data, which is categorized into two types, namely primary data
and secondary data.
Results: Restorative Justice as an approach to peace between victims and perpetrators
have occurred in many prosecution cases at the Prosecutor's Office. In this case, the
prosecutor's office hears the community's voice and wants justice for people with weak
economic conditions before the law. However, in this case, the Prosecutor's
Regulation Number 15 of 2020 still has requirements for cases or perpetrators who
can or cannot stop use based on restorative justice.
Conclusion: Based on the results of the study it was concluded that the prosecutor's
office listens to the voice of the community and wants justice for people whose
economic conditions are weak before the law. However, the Prosecutor's Regulation
Number 15 of 2020 still requires cases or actors who can or cannot stop use based on
restorative justice.
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INTRODUCTION
Human life cannot be separated from criminal acts, crimes, or criminal acts. Adults
do not only commit unlawful acts; children also do it, and even older adults (seniors) are
also subject to criminal acts. For this reason, the existence of law is essential. Indeed, the
law is the foundation, the basis, and the moral in guarding the achievement of the goals of
life that are aspired together for the sake of the emergence of social order. Of course, the
law also functions to prevent, reduce, and eradicate criminal acts. Imposing a crime
against the perpetrator needs to determine what actions are in-cluded in the category of
criminal acts, according to the principle of legality, namely that no act can be punished
but because of the strength of the existing criminal rules before the show was committed.
A criminal act is a term that contains a basic understanding of the science of criminal law,
which is formed by awareness giving specific characteristics to criminal law events.
Legal acts, events, and criminal acts are often referred to as delict in legislation.
Prohibited acts in the Criminal Code or Criminal Code are known as strafbaar feit, and
the literature on criminal law often uses the term delict (Rahmawati, 2017). At the same
time, lawmakers formulate a rule using the terms criminal event, criminal act, or criminal
act. The criminal system in the Criminal Code (KUHP) still maintains a retributive
paradigm, namely providing appropriate retaliation for crimes committed by perpetrators
and staying focused on prosecuting their crimes. This system's implementation has not
considered the recovery of victims' losses.
Restorative Justice is the process of resolving cases of law violations that occur
with the victim and the perpetrator (suspect) sitting together in a meeting to talk together
(Hambali, 2019). In the forum, the mediator provides the perpetrator with a clear picture
of his actions. In this media, the perpetrator describes his effort and why the perpetrator
carried out the motion (Meidianto & STK, 2021). The victim must listen to the
perpetrator's explanation. Restorative justice is one solution to solving crime cases,
namely by prioritizing the core problem of crime. The critical solution must be
considered to repair the damage caused by the crime.
To make this happen, on July 21, 2020, the Attorney General of the Republic of
Indonesia, Dr. ST. Burhanuddin, SH., MH, signed the Attorney General's Regulation
Number 15 of 2020 concerning Restorative Termination of Prosecution. The regulation
was promulgated and entered into force on July 22, 2020. Since then, state prosecutors
throughout Indonesia have started to stop prosecutions based on restorative justice since
August 13, 2020, with the Gunung Kidul District Attorney being the first District
Attorney to terminate prosecutions based on restorative justice. On the siblings who were
fighting in the case of abuse, followed by the South Lampung District Attorney on
August 19, 2020, in the case of taking rubber latex at TPN VII Bargen Tanjung Bintang,
and as of October 1, 2020, 101 (one hundred and one) patients had been successfully
decided based on the restorative justice of the prosecutors throughout Indonesia.
It should be noted that bringing restorative justice in criminal matters to the
criminal justice system in Indonesia is not easy (Nurman, 2022). Restorative justice is the
most recent model of justice, where the method of its use in criminal justice is only
regulated in United Nations (UN) resolutions, the basic principle on the use of restorative
justice in criminal matters in 2000. The United Nations, since the 9th congress, has
encouraged all countries in the world to consider carrying out private prosecutions
through alternative dispute resolution mechanisms (ADR), which can be in the form of
mediation and conciliation and can pro-vide several restitution or compensation. In the
criminal justice system. It is not easy to accept in the civil law legal system (Joice Soraya,
2022).
Concepts and Provisions For Recovery Of A Case Through A
Justice-Based Restorative Approach By The Prosecutor's
Regulation No. 15 In The Year 2020
2022
Daffa Elvaretta, Achmad Ghozali Nasid, Anisa Aulia Fitri 42
It should be noted that restorative justice was born from the reaction of the
Abolitionists. They considered the means of punishment to contain structural problems or
defects and did not motivate criminals to become good people anymore. In addition,
crime victims will continue to suffer even though the perpetrators of the crime have been
punished . That is, restorative justice is not only for perpetrators but also for critics of a
system that never pays attention to victims. For the victim, justice does not permanently
imprison the perpetrator. Such justice is formal justice, which makes it impossible to
restore the rights of victims and losses that have occurred. Substantive justice for victims
is to obtain reparations.
Restorative justice is an effort to introduce the perpetrator-victim relationship, or
the "perpetrator-victim" relationship, as a new approach in criminal law and the nature of
modern punishment, replacing the act or perpetrator approach or "daad-dader straitest."
Restorative justice makes the criminal law system in Indonesia enter a new phase in its
development where case settlement with a beneficial justice approach is a dichotomy or
concept that faces each other or contradicts the conventional criminal justice system.
Of course, this is not easy to do. The criminal justice system in Indonesia until now
still concentrates on the perpetrators and sees a crime in the pattern of state relations with
crimes or unlawful acts. That's why people always concentrate on the perpetrator and
forget that the victim must also be restored. This is natural because the philosophy is still
retaliation. For more than 100 (one hundred) years, this system and philosophy have been
adopted, integrated, and used as a paradigm of thinking for all components of criminal
justice. Therefore many people talk about restorative justice but do not understand its
philosophy and history. Given the difficulty of applying restorative justice, which makes
prosecutions private, the Prosecutor's Office needs to build cognition and confidence by
relating legal concepts to the existing law. Therefore, the termination of prosecution is
based on restorative justice as regulated in the Prosecutor's Office Regulation Number 15
of 2020.
RESEARCH METHODS
The approach method used in this research is a normative juridical approach
(Suganda, 2022). The normative juridical process is research that seeks to synchronize the
applicable laws in protecting norms of other legal regulations or applying these
regulations to actual practice in the field. The type of data used in this study is qualitative
data, which is categorized into two types, namely primary data and secondary data.
Sources of data were obtained through library research techniques (library study) which
refer to sources available both online and offline such as scientific journals, books, and
news from reliable sources. Data collection techniques used in this study were
observation, interviews, and research. This data is analyzed and then conclusions are
drawn.
RESULTS AND DISCUSSION
A. Concepts comprise the theory of “cessation of prosecution based on restorative
justice.”
Restorative Justice is a foreign term that has only been known in Indonesia since
the 1960s with the time Restorative Justice. In some developed countries, restorative jus-
tice is not just a discourse by criminal law and criminology academics. In North America,
Australia, and several European countries, restorative justice has been applied in the con-
ventional criminal justice process, starting from the investigation, prosecution, adjudica-
tion, and execution stages.
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Restorative Justice is a concept of justice that is very different from what we know
today in the retributive Indonesian Criminal Law System. Restorative Justice is an
approach to making transfers and institutionalizations compatible with justice. Also, it is
built based on positive traditional community values and sanctions that are implemented
respecting human rights. Another critical thing distinguishing the Criminal Law System
and restorative justice is the participation between victims and perpetrators. This issue of
participation becomes equally crucial because, basically, restorative justice, which is the
ultimate goal, can only be realized if victims and perpetrators are actively involved
directly in the effort to determine the best solution for all parties.
The UK found three benefits of Restorative Justice: reducing recidivism, increasing
efficiency and cost utilization, and increasing public trust and satisfaction . Therefore,
Restorative Justice is not just a new mechanism in criminal justice.
The principles of Restorative Justice are making the perpetrator responsible for
repairing the damage caused by his crime, providing the opportunity for the perpetrator to
prove his capacity and best quality to overcome his guilt constructively, involving the
victim, parents, family, school or playmates, create a forum for cooperation , also in
crime-related issues to overcome them. The concept of Restorative Justice also plays its
role in reducing court costs. This is in line with the Criminal Procedure Code (KUHAP)
principles, which are fast, simple, and low-cost. The primary objective of the Restorative
Justice approach is focused on the criminal justice system in terms of improving the
criminal justice system in several ways, namely: First, the method involving victims in
the criminal justice system is still very minimal; second, reducing or even eliminating
conflicts between perpetrators, victims, and the community; Third, the Restorative Justice
process must reduce the consequences of criminal acts that result in powerlessness for
victims and the community as well as provide improvements to significant problems.
The community and law enforcement have not fully implemented the concept of
restorative justice. Implementing the idea of restorative justice in practice is still shrouded
in various debates . Not a few people understand that the idea of restorative justice is the
same as mediation. This makes the concept of restorative justice understood as an effort
toward peace outside the court. The idea of restorative justice with mediation is very
different. This is also contra to people who are worried that the concept of restorative
justice will undermine the purpose of justice because they think it cannot provide a
deterrent effect to perpetrators who commit criminal acts.
The concept of Restorative justice does resemble the practice of penal mediation.
But there are fundamental differences between restorative justice and penal mediation.
The beneficial justice approach is carried out in conjunction with law enforcement. In
contrast, penal mediation can be carried out by perpetrators and victims only without
involving other parties, including law enforcement. However, this practice of penal
mediation has no legal basis in its enactment. In this case, both of them have a fulcrum on
the basic philosophy of the state, namely Pancasila . In the termination of prosecution
based on restorative justice, several concepts are known, namely:
1. The concept of a restorative justice model
Restorative justice, characterized by common law, is drawn as a model of peace
with the process and procedure of court settlement (non-litigation) in the prosecution
stage (Waluyo, 2020). This is done to examine minor crimes only carried out in a small
claim court. The process of pulling out of court is not without reason. Surveys prove
multiple victims, presenting a criminal justice system that cannot recover losses.
Meanwhile, the criminal justice system can only provide formal justice as punishment for
guilty perpetrators. Restorative Justice is the answer to criticism of the neglect of victims'
rights (Tampoli, 2016).
Concepts and Provisions For Recovery Of A Case Through A
Justice-Based Restorative Approach By The Prosecutor's
Regulation No. 15 In The Year 2020
2022
Daffa Elvaretta, Achmad Ghozali Nasid, Anisa Aulia Fitri 44
2. The concept of wisdom demands (opportunity).
Prosecutors, as dominus litis, need to emphasize their authority. As a Law
Enforcer, the Prosecutor's Office is the controller in the prosecution process, so the
principle of opportunity is used by giving a touch of existing law in the civil law system
with a system of ruling out cases, were to rule out this chosen case is not to rule out issues
in the public interest, but to rule out possibilities by resolving cases outside the court.
Court (afdening buiten process) and the concept of termination of prosecution. So
different from setting aside the case for the public interest, the prosecutor's office can
carry out the gardening buiten process on the concept in the Netherlands. The Draft
Criminal Procedure Code confirms that in the future, it will regulate the authority of the
public prosecutor to stop prosecution for specific reasons. Of course, because the Draft
Criminal Procedure Code is still ius continue dem even though its breath can be felt in the
current legal developments, the termination of the prosecution that is still possible to be
adopted is the termination of prosecution for the sake of the law.
The proposed merging of these concepts is then linked to several principles, such as legal
efficiency, the level of reproach, and social response and harmony, which are applied
proportionally.
B. Terms of Termination of Prosecution through a Restorative Justice Approach
The Prosecutor's Office controlling the case process has a central position in law
enforcement. Only the Public Prosecutor has the authority to stop the prosecution.
However, this authority is not sufficient to provide legal certainty. Decisions or decisions
issued by the Attorney General are often controversial because the Attorney General's
Office has no juridical reason to stop small cases or cases with small losses. This
prosecutor's regulation provided a basis for exploring the value of justice in society
(Karjoko, Handayani, Jaelani, Barkhuizen, & Hayat, 2021).
In 2020, the Attorney General of the Republic of Indonesia issued a Regulation in
the form of a Prosecutor's Regulation concerning the Termination of Prosecution Based
on Restorative Justice which was compiled and ratified in the Prosecutor's Regulation
Number 15 of 2020. This is a further rule of the KUHAP regarding the Authority to
Discontinue Prosecution held by the Public Prosecutor. Article 140, paragraph (2) of the
Criminal Procedure Code provides three reasons for the public prosecutor to terminate the
prosecution, namely 1) the act is not a criminal act, 2) insufficient evidence, and 3) closed
by law. Then refer to the provisions of material law.
It can also be understood, to clarify the intention of stopping the prosecution, the
definition of prosecution is contained in article 1 point 7 of the Criminal Procedure Code,
which reads, "prosecution is the Act of the Public Prosecutor to transfer a criminal case to
the competent district court in the case and in the manner provided for in this law with a
request to be examined and decided by a judge at the trial court." Therefore, the
understanding of the article, prosecution occurs if a case has been transferred to the court.
Hence, the limitation of whether or not there has been a prosecution is the transfer of a
chance to the district court (PRATAMA, 2019).
The reason for the failure of the prosecution is based on the regulations in the
Criminal Code and outside the Criminal Code. provisions outside the Criminal Code are
contained in Chapter VIII of Book I of the Criminal Code on "Abolition of Prosecution
Authority and Authority to Implement Criminal Law." What is meant by closed by law
according to the Criminal Code is if the case is Ne Bis in Idem (Article 76), the defendant
dies (Article 77), and the issue (Dwijayanti, 2017). In addition, the Public Prosecutor's
Regulation on Termination of Prosecution Based on Restorative Justice adds the reason
for the termination of prosecution, namely, "there has been a settlement of the case out of
court. (afdoening buiten process)." Settlement out of court is needed to help the State
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reduce unnecessary costs in the judicial process. An out-of-court payment is necessary to
achieve the principle of fast, simple, and low-cost justice.
Through the policy of the Attorney General's Office to prevent abuse of authority
by the Public Prosecutor, Public Prosecutor's Regulation Number 15 of 2020 is prioritized
for criminals who are incapable of committing criminal acts because they are forced to
for reasons, among others, due to weak economic conditions. In stopping prosecution
based on Restorative Justice, the Prosecutor's Regulation Number 15 of 2020 has
requirements that must be met.
Termination of Prosecution based on Restorative Justice considers the victim's
interests and other legal claims and avoids society's negative stigma. According to Article
4 paragraph (2) of Prosecutor's Regulation Number 15 of 2020, the Termination of
Prosecution based on Restorative justice is carried out by considering: a) the subject,
object, category, and threat of criminal acts. b) background to the occurrence of criminal
acts. c) the degree of reproach. d) losses or consequences arising from criminal acts. e)
cost and benefit of handling cases. f) recovery back to its original state. g) there is peace
between the victim and the suspect.
In simple terms, the termination of the prosecution was carried out by setting
several conditions described in Article 5 of the Prosecutor's Office Regulation Number 15
of 2020, namely:
1. The first must be the first time, not repetition or resided action. Specifically, this
is the first time the perpetrator has committed a crime. This is called the first
offender. In this condition, the state provides opportunities for people who have
committed a crime for the first time, and are still being pardoned, to rehabilitate
themselves. If the perpetrator violates again, the perpetrator is ready to go to jail.
It is a powerful parable because there is no change in the culprit (Budiartha,
2019).
2. Second, this is only for cases with certain conditions. Suppose you take the terms
of an issue that can be settled out of court with restorative justice, among other
things. In that case, it concerns personal losses and not against crimes that attack
the interests of the community and the state, administrative crimes, crimes
categorized as minor (trivial cases), and so on (Eddy & Hiarriej, 2016). The
prosecutor's regulation Number 15 of 2020 stipulates the conditions for the threat
of a fine or imprisonment but not more than 5 (five) years.
3. Third, the evidence or the value of the loss caused by the perpetrator's criminal
act is not more than Rp. 2,500,000 million.
The application of these conditions is for criminal acts: a) Property-related crimes.
b) Criminal acts committed against people, lives, bodies, and the liberty of others. c)
Criminal acts committed through negligence. The fulfillment of the conditions for
termination of prosecution based on Restorative justice is used as a consideration for the
Public Prosecutor to determine whether or not the case file can be transferred to the court.
Lightly motivated criminal acts should be resolved using Restorative Justice be-cause
they are cheap, fast, simple, and can get the best form of self-settlement between the
parties (Meliala, 2015). The use of Restorative Justice in the settlement of ordinary
crimes with a mild motive has used the theory proposed by Tony Marshall, namely :
"Restorative Justice is a process by which all parties involved in a particular crim-inal act
jointly seek a solution in dealing with the events following the onset of the crime and how
to address its implications in the future."
Prosecutor's Regulation No. 15 of 2020 concerning Termination of Prosecutions
Based on Restorative Justice provides a better term of justice:
Concepts and Provisions For Recovery Of A Case Through A
Justice-Based Restorative Approach By The Prosecutor's
Regulation No. 15 In The Year 2020
2022
Daffa Elvaretta, Achmad Ghozali Nasid, Anisa Aulia Fitri 46
1. Losses can be more than 2.5 million, provided the criminal offense is not more than
5 (five) years, or vice versa, for property-related criminal acts. The exception to
this requirement is to protect victims who view cynically as a litigation solution
because formal justice imprisons the perpetrator and does not address the victim's
need to be paid compensation. The victim's impact is enormous if only the
perpetrator's money stolen, cheated, etc., is spent. Even if the perpetrator deceives a
perpetrator is a person who wants to invest, fulfilling the victim's rights with the
return for the victim's opportunity to enliven the business world is a form of
prosecutorial support through law enforcement to the investment climate currently
launched by the president. Therefore, looking at Restorative Justice to recover
crimes that harm the individual is essential.
2. Conversely, most regions state the loss value of Rp. 2,500,000 is still categorized
as a considerable loss, so prosecutorial regulation Number 15 of 2020 concerning
the Termination of Prosecution based on restorative justice offers victim consent.
The victim agrees and stops. The victim disagrees because the 2.5 million victims
are significant, and the victim has the right to refuse. Prosecutors should not
interfere. Prosecutors should not pretentiously know the measure of justice for
victims. That is Restorative Justice, seeing crimes in the orientation of
interpersonal conflicts that must be resolved by the perpetrator and the victim with
interpersonal communication.
The function of prosecutorial regulation Number 15 of 2020 concerning the
Termination of Prosecutions Based on Restorative Justice about Perkap No. 6 of 2019
concerning Criminal Investigations, which regulates the settlement of Restorative Justice
at the investigation level. The Constitutional Court, in its decision, gave a time limit of 7
(seven) days to send a Notice of Commencement of Investigation (SPDP) after the
Investigation Warrant (Sprindik) was issued. Of course, it is not easy for the Investigator
to make a settlement based on restorative justice if the time limit is very short (Akbar,
2022).
In the prosecutor's regulation Number 15 of 2020, a settlement has been completed
at the investigation level. The Prosecutor's Office welcomes the settlement of cases based
on Restorative Justice that cannot be resolved at the investigation level or has been
completed at the investigation level, at stage II, or the prosecution stage for re-
verification. Suppose the terms and procedures are by the Prosecutor's Regulation
Number 15 of 2020 concerning the Termination of Prosecution Based on Restorative
Justice. In that case, it can be proposed to terminate the case with a restorative justice
approach. Again this is the embodiment of the dominus litis function of the prosecutor.
CONCLUSION
From the above research it can be concluded that human life is inseparable from
criminal acts, crimes, or criminal acts. Law is the basis, foundation, and morals in
overseeing the achievement of life goals that are aspired together for the realization of
social order. Of course, the law also functions to prevent, reduce, and eradicate criminal
acts. In imposing a sentence, the perpetrator needs to determine what actions fall into the
category of criminal acts, according to the principle of legality, that is, no single act can
be punished, but because of the strength of the pre-existing criminal regulations. the show
was done. The criminal system in the Criminal Code (KUHP) still adheres to a retributive
paradigm: giving proper retribution for crimes committed by perpetrators and remaining
focused on prosecuting their crimes. The application of this system has not paid attention
to the recovery of losses for victims (Dwi Nugroho & Kunartinah, 2012).
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Restorative justice is one of the solutions to solving crime cases, namely by
prioritizing the core problem of a crime. For victims, justice does not always imprison
perpetrators. Such justice is formal justice, which is impossible to restore the rights of
victims and losses that have occurred. Substantive justice for victims is obtaining
recovery. The presence of the concept of Restorative Justice also plays a role in reducing
court costs. This is in line with the principles of the Criminal Procedure Code, namely
fast, simple and low cost. The basic objective of the restorative justice approach is
focused on the criminal justice system in terms of improving the criminal justice system
in a number of ways, namely: First, the method of involving victims in the criminal
justice system is still very minimal; second, reduce or even eliminate conflicts between
perpetrators, victims, and society; the three processes of restorative justice must mitigate
the consequences of criminal acts that result in the helplessness of victims and society
and provide improvements to the main problems. Termination of Prosecution Based on
Restorative Justice compiled and ratified in Prosecutor's Regulation Number 15 of 2020.
This is a continuation of the Criminal Procedure Code regarding the Authority to
Stop Prosecution owned by the Public Prosecutor. Article 140 paragraph (2) of the
Criminal Procedure Code. Through the Attorney General's policy so that there is no abuse
of authority by the Attorney General's Office, the Attorney General's Regulation Number
15 of 2020 prioritizes perpetrators of criminal acts who are unable to commit crimes
because they are forced to, among others due to weak economic conditions. Prosecutor's
Regulation Number 15 of 2020 has conditions that must be met to stop prosecution based
on Restorative Justice. Article 5 paragraph (1) is:
a. The suspect was a first time offender.
b. Criminal acts are only punishable by fines or imprisonment for a maximum of
five years.
c. The crime is committed with the value of evidence or losses incurred as a
result of the crime of not more than Rp. 2,500,000.
Fulfillment of the conditions for termination of prosecution based on restorative
justice is used as a consideration for the Public Prosecutor to determine whether or not the
case file can be transferred to the court.
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