Author: Commercial Dispute Resolution Practice Group

In Indonesia, disputes arising between victim and perpetrator under criminal law are resolved through criminal proceedings. However, criminal proceedings focus on providing a deterrent effect on the perpetrator rather than providing merits to all parties, especially for the victim. Therefore, many victims did not receive any material or imaterial remedy for the consequence of criminal act conducted by perpetrator, even the perpetrator has been found guilty.

1. RESTORATIVE JUSTICE UNDER INDONESIAN LAW

As a solution to the remedial issues of the victim above, Indonesia recognizes the legal principle of “restorative justice” which may accommodate the interest of all parties, including the victim, perpetrator, and society as well. According to experts, “restorative justice” means an approach to crime and conflict, with a focus on the people who are harmed (the victims), the one causes the harm (the perpetrator), and the affected society. Moreover, this legal principle has also been recognized in the world where the United Nations defines “restorative justice” as an approach to problem-solving that, in its various forms, involves the victim, the offender (the perpetrator), their social networks, justice agencies, and the community.

Apart from the recognition of this legal principle by experts and the United Nations, the Indonesian National Police (“INP”) and Indonesian State Prosecutor (“ISP”) has also accepted this legal principle as written in Chief of INP Regulation Number 6 of 2019, Circular Letter of the Chief of INP Number SE/8/VII/2018 of 2018, and ISP Regulation Number 15 of 2020. It is stipulated under these regulations that “restorative justice” is applicable in Indonesian criminal proceedings.

Moreover, the application of "restorative justice" is not only applicable at the stages of investigation by the INP and prosecution by the ISP, but also applicable at the stage of trial by the judges. It can be seen from the existence of several jurisprudences with verdicts that focus primarily on the interest of the victims rather than the deterrent effect of the perpetrators.

2. RESTORATIVE JUSTICE APPROACH UNDER INDONESIAN CRIMINAL JUSTICE SYSTEM

At the stages of investigation by INP, the technical regulation for the application of “restorative justice” is regulated under the Circular Letter of the Chief of INP Number SE/8/VII/2018 of 2018 (“INP Chief Circular Letter 2018”). The final product that will be issued by the INP for the application of “restorative justice” is Warrant Termination of Investigation (Surat Perintah Penghentian Penyelidikan/Penyidikan - SP3). The followings are the requirements and procedure for the issuance of the said Warrant Termination of Investigation by the INP as regulated under the INP Chief Circular Letter 2018:

1. The fulfillment of the material requirements, as follows:

1. the settlement does not cause unrest or resistance in the community;
2. the settlement does not impact social conflict;
3. there exists a statement from all the parties involved which states of no objection and waiving the right to sue; and
4. only applicable in the stages investigation before the Warrant for Commencement of Investigation sent to the ISP, and to the perpetrator: (i) with a relatively low level of offense, and (ii) who are not a recidivist.

2. The fulfillment of the formal requirements, as follows:

1. the victim and the perpetrator have to make Settlement Application Letters;
2. the victim and the perpetrator (and other involved parties) have to make a settlement agreement with the knowledge of the investigators superior;
3. Additional Minutes of Investigation made by the investigator in relation to the settlement by the related parties through restorative justice;
4. there exists a recommendation by the special case assembly by the investigators that approved the settlement through restorative justice;
5. the perpetrator does not object and will voluntarily carry out the responsibility and compensation imposed on him under the agreed settlement agreement;
6. restorative justice is applicable to every general crime that does not cause human casualties.

3. The step-by-step procedure, as follows:

1. after receiving the settlement application of the involved parties (the victim and the perpetrator) which signed on stamp duty, the investigator will conduct an administrative examination;
2. if the administrative requirements have been done, the settlement applications will be submitted for approval to the investigator's superior;
3. if approved, the time for signing the settlement statement will be determined;
4. next, a conference will be held which results in an agreement signed by all parties involved;
5. then, the investigator will make an official note to the investigator’s superior regarding the application for the special case assembly for the purpose of terminating the case;
6. after that, a special case assembly will be held with related parties, a representative from the community appointed by the investigator, the investigator in charge, and representatives from the internal supervisory function and legal functions and elements of government (if needed);
7. then, administrative documents, special case assembly documents, and the report results of the special case assembly will be compiled; and
8. finally, the Warrant Termination of Investigation will be issued.

3. RESTORATIVE JUSTICE AND ITS RELATION WITH ULTIMUM REMEDIUM

Restorative Justice is not the same as a settlement with the victim, it is more than that. The settlement – out of court settlement – without any previous criminal legal proceeding, is only involving two parties, without involving INP as a mediator, while restorative justice must involving INP as a mediator between the victim and perpetrator, since the settlement conducted after the criminal process/investigation is started by the INP.

The consideration to implement restorative justice are stated on Chief of INP Regulation Number 6 of 2019, INP Chief Circular Letter 2018, and ISP Regulation Number 15 of 2020, amongst other: (i) to restore the balances by burdening the perpetrator of the crime, with his awareness: admitting mistakes, apologizing, and returning the damage/losses to the victim as before; and (ii) to reduce criminal cases due to lack of law enforcer and overcapacity prison problem.

Restorative Justice principle is in line with the ultimum remedium principle that has been long known recognized in criminal law. Ultimum Remedium principle prevents the state to conduct criminalization, therefore consider criminal law as the last resort. This principle should be considered in the process of criminalization due to the characteristic of the punishment in criminal law that always suffer the perpetrator. In other words, ultimum remedium requires efforts to impose other sanctions (non-penalties), in the form of compensation, fines, warnings or other matters before the use of criminal law means in the form of imprisonment.

Criminalization should always be considered as the last alternative for a criminal act, as long as it meets the parameters as previously stated. The interpretation and viewpoint of Ultimum Remedium are in accordance with Restorative Justice which places criminal proceedings as a last resort, and consider to give other sanctions (non-penal) in the form of compensation, fines, warnings, or other things. Therefore, there is a way out from the criminal process for the potential perpetrator, which is restorative justice, as long as the perpetratior fulfill the requirement on Chief of INP Regulation Number 6 of 2019, Circular Letter of the Chief of INP Number SE/8/VII/2018 of 2018, and ISP Regulation Number 15 of 2020.

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This article is designated to provide only general information and is not intended to be a comprehensive advice; and the reader may not act on the basis of any information contained in this brochure without seeking professional advisor.