Remodeling of Criminal Case Settlement in Indonesia

AHMAD SYAUFI

Faculty of Law, Universitas Lambung Mangkurat,

Banjarmasin,

INDONESIA

Abstract: - The criminal justice process in Indonesia based on the Criminal Procedure Code can be said to have

diminished or even removed the important role of individuals in attempts to settle criminal cases. The search

for justice in criminal cases depends entirely on the ability of the integrated system built by the police,

prosecutors, courts, and correctional institutions. In this context, of course, efforts to seek justice do not solely

depend on the state alone, but must be accomplished through cooperation and competitive social relations.

Seeing the existing reality in order to accomplish fair procedural justice and restorative justice in the renewal of

criminal law in Indonesia, it is necessary to conduct a study regarding how to remodel the settlement of

criminal cases in Indonesia in the future. This article performs qualitative research using normative legal

research using a statutory approach and a conceptual approach. Efforts to seek justice in the settlement of

criminal cases, of course, can no longer rely solely on the criminal justice process, but there must be an

alternative settlement involving the conflicting parties and a neutral third party. In reforming the national

criminal law, it is necessary to reconstruct the settlement of criminal cases that accommodates the settlement of

criminal cases through the criminal justice process and penal mediation in order to improve the Indonesian

criminal justice system to be effective and efficient. The criminal case settlement model can be formulated into

the Draft Criminal Code and the Draft Criminal Procedure Code.

Key-Words: - Reconstruction, Legal Settlement, Sentencing Alternatives, Criminal Cases, Penal Mediation.

Received: September 14, 2022. Revised: January 18, 2023. Accepted: February 20, 2023. Published: March 10, 2023.

1 Introduction

The settlement of criminal cases through the

criminal justice process as a method of distributing

justice is commonly perceived as unfair to all

parties. One of the contributing factors is that the

criminal justice process is full of formalities,

procedures, bureaucracy, and strict methodologies,

and there is and is still one process for all kinds of

issues (one for all mechanisms). Formal justice

rests on the repressive actions of the police and is

followed by a legal process through the judiciary.

These formal litigation actions depend a lot on

coercion and the authority of the law enforcement

officers who carry out them. Even if there is a

result, it will generally end in a “lost-lost” or “win-

lose” situation. In criminal cases, such as fraud and

theft, the judge's decision only imposes a prison

sentence on the defendant who is proven guilty,

without being accompanied by sanctions in the

form of an obligation to the defendant to provide

compensation to the victim. Although the Criminal

Procedure Code (see Chapter XIII Articles 98-101

of the Criminal Procedure Code) allows the victim

to file a (civil) lawsuit for all the suffering and

losses suffered, this kind of lawsuit will take a long

time which does not benefit the victim.

The criminal justice process in force in

Indonesia currently still prioritizes retributive

justice which is reconstructed in the administration

of criminal justice as a rationalization or

objectification of revenge against criminal law

violators, causing permanent suffering and negative

stigma to the perpetrators of criminal acts so that

the perpetrators become people. ostracized in

society, [1], [2]. This has an impact on the

difficulty of perpetrators to improve their attitudes

and behavior to become good and responsible

citizens.

This condition is very contrary to the wishes of

the people who crave restorative justice in every

settlement of criminal cases which should be

resolved peacefully, [3]. The operation of the

criminal justice system in Indonesia is based on

Law Number 8 of 1981 concerning the Criminal

Procedure Code. Based on the Criminal Procedure

Code, criminal justice is more focused on paying

attention to the perpetrators of criminal acts, both

in terms of their position from the time the suspect

becomes a convict and also their rights as suspects

or defendants are highly guarded by the Criminal

Procedure Code. So it is possible to say that the

criminal justice process in Indonesia is an

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Offender-minded or Offender Oriented Criminal

Justice Process. Because it is more focused on the

interests of the perpetrators of the crime, the

interests of the victims of the crime are not

recognized in the Criminal Procedure Code.

Even though the Criminal Code has regulated

and protected the concerns of the victim to acquire

compensation for the perpetrator through a judge's

resolution in the form of a conditional sentence,

where compensation for the loss to the victim is

used as a special condition. Since it is only a

special requirement of a conditional sentence,

judges often do not apply it in imposing a

conditional sentence, so it is implementation is

ineffective. This condition is one that underlies the

emergence of various negative assumptions about

the criminal justice process carried out by state

institutions that only present formal justice

(procedural) and retributive justice to justice

seekers.

The criminal justice process in Indonesia based

on the Criminal Procedure Code can be said to

have decreased moreover removed the important

role of individuals in an attempt to resolve criminal

cases. The search for justice in criminal cases

depends entirely on the competence of the

integrated system built by the police, prosecutors,

courts, and correctional institutions. In fact, after

the enactment of Law Number 18 of 2003

concerning Advocates, which was originally

expected to enlarge the role of individuals through

assistance to victims and efforts outside the court, it

did not change the 'rigid' nature of the criminal

justice process in Indonesia. New advocates will be

efficient and their actions assessed in order to seek

justice only for their actions before the trial.

Meanwhile, the results of efforts made outside the

court, such as the results of negotiations and

reconciliation do not have legal force to be assessed

as material for consideration of a court decision.

Another problem, if all criminal cases must be

resolved through the criminal justice process, it will

affect the increase in the number of prisoners and

detainees. Currently, the percentage of detainees

and prisoners in Indonesia has exceeded the

capacity of the Correctional Institutions and the

State Detention Center. Derived on data from the

Directorate General of Corrections at the Ministry

of Law and Human Rights of the Republic of

Indonesia, as of September 2, 2021, the number of

prisoners and detainees in 439 prisons and

detention centers in Indonesia has reached 266,663

people from the supposed capacity of 132,107

people, so there is over capacity of 134,556 people

or around 201% people, [4]. As a result of this

condition, in the vulnerability of prisons or

detention centers to disturbances in safety and

order, prisoners, and detainees escape illegal levies,

extortion, drug trafficking, disease, and sexual

deviation threats. This condition is certainly very

concerning because there has been an excess of 2

times the capacity it should have. As a result, the

process of sentencing and coaching prisoners in

prisons does not run effectively, so there needs to

be solutions and appropriate and strategic steps to

overcome these problems.

As time goes by, there is a high possibility of

enhancement in the volume of criminal cases with

all their type and forms that go to court, so the

effect becomes a burden for the courts in case

examination and determination, so it is hard to

avoid the accumulation of criminal cases in the

judiciary. And it does not rule out the possibility of

influencing the length of the criminal justice

process and the quality of a judge's decision. This

situation is of course contrary to the principle of a

simple, fast, and low-cost trial. This is due to the

misperception of law enforcers, especially in the

operation of criminal law as the main weapon

(primum remedium) in every settlement of criminal

cases or cases that enter the realm or fall under the

authority of law enforcers starting from the

investigation authorized by the police, prosecution

by the prosecutor's office, and the examination

authority and that decide cases by judges, [5].

While, criminal law functions as the last weapon

(ultimum remedium), interpreted that if a different

method to accomplish the problem or criminal case

is deadlocked or unsuccessful, then the settlement

can be completed through criminal law.

In this context, of course, attempts to seek for

justice do not anymore, depend solely only on the

state but must be handled through competitive

social relations and cooperation. Because the

justice prepared by the state is not necessarily even

suitable for the desire of those seeking justice

themselves, because fundamentally every person

needs and chases their interests as well as various

acceptability of the sense of justice. This type of

justice will never be discovered in the current grand

design of the criminal justice process in Indonesia.

Observing the existing fact in order to

accomplish fair procedural justice and restorative

justice in the renewal of criminal law in Indonesia,

it is necessary to conduct an assessment regarding

how to remodel criminal case settlements in

Indonesia in the future. This model is expected to

be applied at every stage of the criminal justice

process.

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2 Research Methodology

This research is qualitative research using

normative legal research. Normative legal research

is a scientific research procedure to find the truth

based on the logic of legal scholarship from the

normative side, [6].

In order to accomplish the research objectives

that have been set, this research uses a statutory and

a conceptual approach. The statutory approach

method involves an analysis of applicable laws,

including identifying and analyzing the contents of

these laws. This method also involves research on

cases related to the law under study. The

conceptual approach method involves an analysis

of existing legal concepts, including identifying

and analyzing the contents of these concepts. This

method also involves research on cases related to

the legal concepts studied.

3 Penal Mediation as an Alternative

to Resolve Criminal Cases

The idea of penal mediation as an alternative to

resolving criminal cases outside the court has never

been known before, both in the criminal justice

system with the due process of law model and the

crime control model. Even if there are efforts to

settle a criminal case outside the court, especially

in the context of criminal law enforcement in

Indonesia, all of them are solely or through the

discretion of law enforcement officers such as the

police. For example, with preliminary efforts to

seek peace through the settlement of customary

institutions and so on. These efforts are carried out

only to the extent of "preliminary efforts" that do

not have binding legal force, while the case may

continue to be resolved through the criminal justice

process, [7]. Even if an agreement or decision of a

customary institution is obtained, it will only be

used as the basis for non-binding considerations by

the judge in his decision. This means that efforts to

settle out of court do not stop the criminal justice

process. In contrast to the more sensitive legal

optics, this has actually violated the principle of

nebis in idem in a broad sense. This is because a

person has to experience more than one 'judgment'

in a case that is not justified by the rules of criminal

law.

Thoughts about the settlement of criminal cases

through penal mediation are relatively new because

the Criminal Code and the Criminal Procedure

Code as well as other regulations and laws in the

field of criminal law do not yet regulate the

settlement through penal mediation of criminal

cases so that if there is a desire to resolve criminal

cases through penal mediation then there is a

vacuum of legal norms.

The settlement of criminal cases through the

criminal justice process is not a simple process,

because it encompasses numerous components of

the criminal justice system, a lot of stages that must

be passed, and a lot of time and money is needed to

resolve criminal cases. This is in line with the

opinion of [8], that the settlement of criminal cases

through the criminal justice process has many

weaknesses, including:

The settlement of cases that are attached to

the judicial system is very long (the delay

inherent in a system) in ways that are very

detrimental, namely a waste of time (a

waste of time), very expensive costs,

making people hostile (enemy) questioning

the future. past, instead of solving future

problems and paralyzing the parties

(paralyzes people).

Whereas the judiciary as a law enforcement

institution in the criminal justice system is a hope

for justice seekers who always want an easy, fast,

and cheap trial as regulated in Article 2 paragraph

(4) of Law Number 48 of 2009 concerning Judicial

Power.

The settlement of criminal cases through the

criminal justice process is more focused on the

perpetrators of the criminal acts, without paying

attention to or involving the interests of the victims

who have been materially harmed by the

perpetrators. The role of the victim in the

settlement of criminal cases through the criminal

justice process fully depends on the capability of

the system integration created by the police,

prosecutors, and courts, thereby reducing or even

eliminating the important role of individuals in

efforts to resolve criminal cases.

Efforts to seek justice in the settlement of

criminal cases can no longer rely solely on the

criminal justice process, but must also be pursued

through a settlement involving the conflicting

parties and a neutral third party, namely the

settlement of cases through penal mediation.

The settlement of criminal cases through penal

mediation, in principle, is no different from the

peace process in conflict resolution which is

commonly found in indigenous peoples in

Indonesia. The penal mediation process is

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relatively cheaper, faster, and more efficient

because the penal mediation procedure is not as

complicated as the bureaucratic criminal justice

process. The commitment of perpetrators and

victims of criminal acts to quickly resolve cases

also makes penal mediation faster and more

efficient.

Penal mediation is the resolution of criminal

cases through deliberation with the help of a neutral

penal mediator, attended by the perpetrators and

victims, both individually and with their families

and representatives of community

leaders/customary leaders, which is carried out

voluntarily with the aim of recovery for victims,

perpetrators, and the community.

If it is associated with the values contained in

Pancasila, it can be concluded that the value of

deliberation in penal mediation is inspired and

based on the 4th Precept which reads: "Population

led by wisdom in deliberation/representation". The

purpose of recovery for victims, perpetrators, and

the community through the concept of restorative

justice are values-oriented to the 2nd Precept,

namely: "Just and civilized humanity". While the

legal goal to be achieved through penal mediation

is social justice which is reflected in the 5th Precept

which reads: "Social justice for all Indonesian

people".

Restorative justice is a way of thinking that

reacts to the development of the criminal justice

system by underlining the need for the involvement

of victims, perpetrators, and the community who

feel excluded from the mechanisms that work in the

current criminal justice system. Besides that,

restorative justice is also a new structure of

thinking which can be utilized in responding to a

crime for law enforcement. Handling criminal

cases with a restorative justice approach offers

different views and approaches in understanding

and handling a criminal act. In the view of

restorative justice, the meaning of crime is notably

the same as the view of criminal law in general,

namely assault on individuals and society and

social relations. However, in the restorative justice

approach, the state is not the main victim of the

occurrence of a crime, as in the current criminal

justice process. Therefore, crime makes a duty to

repair the broken relationship because of the

incident of a crime. Meanwhile, justice is

interpreted as the process of looking for a solution

to the matters that happen in a criminal case where

the participation of victims, perpetrators, and the

society is necessary for efforts to repair, reconcile

and guarantee the continuity of these repair efforts.

Penal mediation is mediation in the settlement

of criminal cases through deliberation with the help

of a neutral mediator, attended by victims and

perpetrators both individually and with their

families and community representatives (religious

leaders, community leaders, traditional leaders,

etc.), which is carried out voluntarily, with the aim

of recovering for victims, perpetrators and the

community. Mediation in criminal cases can be

carried out in a direct or indirect form, namely by

bringing together the parties (victim and

perpetrator) together or mediation carried out by a

mediator separately (both parties are not met

directly). This can be done by a professional

mediator or a trained volunteer. Mediation can be

carried out under the supervision of an independent

criminal justice institution or community-based

organization and subsequently the results of the

penal mediation are reported to the criminal justice

authorities.

The relationship between penal mediation and

restorative justice is that the teachings of

restorative justice are the teachings that underlie

penal mediation. That is restorative justice as a

paradigm that accommodates the penal mediation

mechanism. On July 24, 2002, the UN ecosoc

adopted the 2002/12 resolution on the "Basic

Principles on the Use of Restorative Justice

Programs in Criminal Matters". Through the Basic

principles he has outlined, he assesses that the

restorative justice approach is an approach that can

be used in a rational criminal justice system. This is

in line with the view of [9], "a rational total of the

responses to crime (criminal politics (criminal law

policy) must be rational)". The restorative justice

approach is a paradigm that can be used as a

framework for a criminal case handling strategy

that tries to answer concern about the way the

criminal justice system is currently operating.

The term that described by Dignan on the

concept of restorative justice as a form of new

approach that can be utilize in manage as follows:

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.

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This definition requires the existence of certain

conditions that place restorative justice as the

fundamental value in reacting to a criminal case. In

this case, it is required to equalize the focus of

attention between the interests of the perpetrator

and the victim and also to take into account the

effect of the resolution of a criminal case in society.

The application of this requirement is not simply to

determine the mainstream thinking of law

enforcement officers who have been patterned with

conventional thinking lines on the current criminal

justice system. It's natural to remember the

following point of view stating, [10]:

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.

The weakness of the current criminal justice

system, as stated above, is in the role of victims and

the community who have not yet received their

roles so the interests of both are neglected. While in

the model of settling criminal cases using a

restorative justice approach, the active roles of

these two parties are important. In the settlement of

criminal cases, the idea of restorative justice can be

applied by implementing a penal mediation

mechanism, namely through deliberation with the

help of a neutral penal mediator, attended by

victims and perpetrators both individually and with

their families and community representatives

(religious leaders, community leaders, traditional

leaders, etc.), which is carried out voluntarily, with

the aim of rehabilitating victims, perpetrators and

the community. The settlement of criminal cases

through penal mediation can be positive, because:

1. It can resolve criminal cases quickly and

relatively cheaply compared to settlement

through the criminal justice process.

2. It is focusing attention on the real interests

of victims and perpetrators and on their

emotional or psychological needs, not only

focusing on their legal rights and

obligations, but also providing

opportunities for victims and perpetrators

to participate directly, and informally in

resolving conflicts between them.

3. It provides consensus capabilities for

perpetrators and victims to carry out the

process and results.

4. It provides results that are tested and will

be able to create a better mutual

understanding between victims and

perpetrators in conflict because they

themselves decide.

5. It is able to eliminate conflict or hostility

that often accompanies every coercive

decision handed down by a judge in court.

Taking into account the development of

thinking about penal mediation, it is necessary to

reconstruct or remodel the settlement of criminal

cases in Indonesia in order to improve the

Indonesian criminal justice system so that it is

effective and efficient. If penal mediation can be

used as an alternative option for resolving criminal

cases, there will be a remodel (reconstruction) of

the settlement of criminal cases in Indonesia. This

means that the construction of the settlement of

criminal cases will be different in the future from

the construction of the settlement of criminal cases

at this time.

4 Remodeling of the Settlement of

Criminal Cases

Reconstruction or remodeling of the settlement of

criminal cases is basically to build or rearrange the

existing criminal case settlement model, with the

aim of updating or improving it so that it is more in

line with the development and community

necessity, [11].

Reconstructing is reshaping, rebuilding can be

in the form of facts or ideas or remodeling, [12].

The concept of a criminal case settlement remodel

is basically an effort to form or develop a criminal

case settlement model that is relatively different

from the model in the existing criminal justice

process, namely to build or organize a new model

that is relatively different from the model that has

been used to resolve conflicts that have existed in

the past arising from the occurrence of a criminal

case to be more in line with the development and

community necessity.

For this reason, as the embodiment of the

Indonesian legal state, a settlement model should

be built based on the following characteristics:

1. The compatibility of the relationship

between the perpetrator and the victim is

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based on the principle of kinship.

2. The principle of conflict or dispute

resolution prioritizes deliberation, and the

judiciary as a last resort.

3. There is a balance between rights and

obligations between the perpetrator and the

victim.

4. Perpetrators and victims must be both

sincere and forgive each other.

The existence of a criminal case settlement

model will form a new criminal case settlement

model. The remodeling of the settlement of

criminal cases in Indonesia is quite urgent,

considering the current criminal justice process is

full of formality and procedural burdens so that in

general the process takes a long time and requires

large costs, is very focused on the perpetrator, and

eliminating the important role of individuals in

efforts to resolve criminal cases, while the end

result is often not satisfying for victims,

perpetrators and the community.

[13] stated, that "the settlement of cases

(disputes/conflicts) in a society can be done

anywhere, not only by judicial institutions but can

be resolved by various forums in their social

environment, which are based on what is called

indigenous law".

The settlement of cases (disputes/conflicts) that

occur in the community does not all have to be

resolved through court procedures. The litigant

parties can make choices in resolving cases

whether through court or out of court which is

influenced by the prevailing culture in the

community concerned. The parties have the

freedom to choose strategic actions to resolve cases

(disputes/conflicts) to achieve the goals they

expect. According to [14], "there are several

possibilities for resolving cases that can be used in

various societies in the world, namely through

adjudication, negotiation, coercion, avoidance and

lumping it. Meanwhile, there are four models of

settlement of cases (disputes/conflicts), namely

negotiation, mediation, arbitration, and

adjudication in courts, [15].

Based on the case settlement model

(dispute/conflict) as stated above, in general, the

settlement of cases (disputes/conflicts) carried out

by the community can be classified into two ways,

namely through court (litigation) and out of court

(non-litigation). When the criminal justice process

cannot provide the expected justice, then those with

problems can look for other alternatives that can

provide that hope. In the settlement of criminal

cases, the parties (perpetrators and victims) have

the right to choose a settlement mechanism that is

in accordance with their respective wishes to

achieve the goals of justice they expect.

In the future reform of the national criminal

law, it is necessary to remodel (reconstruct) the

settlement of criminal cases that accommodates the

settlement of criminal cases through the criminal

justice process and penal mediation. The criminal

case settlement model is formulated into the Draft

Criminal Code and the Draft Criminal Procedure

Code, in the form of:

1. The Criminal Code as a material criminal

law rule will regulate the following

matters:

a. Criteria for criminal acts that can be

resolved through penal mediation;

b. The reason for the abolition of the

crime, the death of the prosecution, and

the death of serving the sentence, if the

settlement is through penal mediation.

2. Draft Criminal Procedure Code as a formal

criminal law rule will regulate the

following matters:

a. The function of the penal mediation

agency

b. The basis for the termination of

investigations, prosecutions,

examinations in court, and the

implementation of court decisions due

to the settlement of criminal cases

through penal mediation;

c. Procedure for resolving criminal cases

through penal mediation.

Remodeling the settlement of criminal cases in

the criminal justice system in the future can be

pursued by providing alternative options that will

be offered, whether through the criminal justice

process or penal mediation. The resolution of

criminal cases through penal mediation can be

carried out on the following conditions:

1. Settlement is voluntary for all parties

involved.

2. It is not a repetition of a crime.

If the requirements have been met, then the

parties can make a choice of settlement through

penal mediation. The parties are also still able to

choose a settlement pattern that is suitable and in

accordance with the conditions of the local

community, whether penal mediation through

customary law mechanisms or through positive

legal mechanisms regulated by the state. In

determining these alternative choices, it is entirely

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dependent on the agreement between the victim

and the perpetrator.

Settlement of criminal cases through penal

mediation by using customary law mechanisms

aims to preserve and recognize the existence of

customary law that still applies to indigenous

peoples in Indonesia. This is in line with the

provisions of Article 18B paragraph (2) of the 1945

Constitution, which recognizes and respects

customary law community units and their

traditional rights as long as they are still alive and

in accordance with community development. The

traditional leaders/customers of the local

community who will serve as penal mediators are

called customary mediators.

Peaceful conflict resolution and dispute

resolution have been involved in the lives of

Indonesia’s indigenous and tribal peoples

Customary law communities in Indonesia feel that

the peaceful resolution of conflicts and disputes has

guided them to a harmonious, just, balanced and

sustained life (communal) values in society, [16].

If the settlement of the case uses a positive legal

mechanism regulated by the state, the penal

mediator is the investigator, public

prosecutor/executor, judge, or professional

mediator appointed in accordance with the rules of

the applicable laws and regulations. The future

criminal case settlement model can be seen in

Figure 1.

Fig. 1: Remodeling of Criminal Case Settlement in Indonesia

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Based on Figure 1, it can be described that the

future criminal case settlement model can be

pursued through the criminal justice process or

penal mediation (customary law or national law). In

determining the decision of the case settlement

model, it is entirely determined by the agreement

between the perpetrator and the victim. The

agreement between the perpetrator and the victim

to select the process of resolving criminal cases

through penal mediation can be carried out before

or during or after the settlement of criminal cases

through the criminal justice process. This means

that the perpetrator and the victim can make an

agreement to select a criminal case settlement

model through penal mediation, namely before or

throughout the investigation or prosecution process

or examination in court, or after the implementation

of a court decision. If the perpetrator and the

victim agree to choose the settlement of their case

through penal mediation, the settlement of the

criminal case through the criminal justice process

will be terminated on the basis of a judge's decision

letter regarding the peace deed.

Resolution of criminal cases through penal

mediation, perpetrators, and victims can make an

agreement to choose the settlement of criminal

cases through penal mediation during the stages of

the investigation, prosecution, examination in

court, and after the implementation of court

decisions.

5 Formulating Strategies to Achieve

Penal Mediation

In the settlement of criminal cases through penal

mediation, it is possible to do by adjusting or

combining the models of penal mediation contained

in the Explanatory Memorandum of the European

Council Recommendation No. R (99) which will be

formulated into the upcoming Draft Criminal

Procedure Code, namely in the following ways:

1. Penal mediation at the investigation stage

Penal mediation at this stage of the

investigation can use a combination of

informal mediation models, traditional

village or tribal moods, victim-offender

mediation, and reparation negotiation

programs in resolving criminal cases. At

this stage, it can be determined how penal

mediation works as follows:

a. After seeing and studying the case or

criminal act committed by the

perpetrator with the criteria according

to the provisions of the law, the

investigator summons the perpetrator

and the victim to offer alternative

options for resolving their criminal

case outside the criminal justice

process, namely through penal

mediation based on customary law or

national law.

b. Penal mediation must be carried out

voluntarily by all parties involved. If

there is an agreement between the

perpetrator and the victim to mediate,

then the investigator submits the

criminal case to the victim by

informing him about the customary

mediator or professional mediator who

will help resolve the case.

c. Penal mediators are provided by

investigators to be selected by the

parties, either professional mediators or

customary mediators (religious leaders,

traditional leaders/tetuha adat, and

others).

d. Penal mediation is carried out in secret

according to the principle of

confidentiality. Everything that

happens and statements that appear

during the penal mediation process

must be kept confidential by all parties,

including the penal mediator. The

penal mediator cannot be a witness in

the criminal justice process for

everything that happens during the

penal mediation process and the

reasons for the penal mediation not

reaching an agreement if the penal

mediation does not result in an

agreement.

e. It is during this penal mediation that

the perpetrator and the victim are

brought together to find mutually

beneficial solutions. The victim can

file a claim for compensation to the

perpetrator according to the material

loss he has suffered, facilitated by a

mediator.

f. If an agreement is reached in

mediation, the penal mediator will

notify the investigator that an

agreement has been reached through

penal mediation with the payment of

compensation from the perpetrator to

the victim.

g. The result of the penal mediation

agreement is a final decision and is

submitted to the local district court to

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obtain a settlement deed so that it can

be used as an executorial basis and the

reason for stopping the investigation.

h. If there is an agreement between the

parties, the investigator will not

continue the process of delegating the

case to the public prosecutor.

2. Penal mediation at the prosecution stage

In the implementation of penal mediation

at the prosecution stage, it is a combination

of penal mediation models between

informal mediation, traditional village or

tribal moods, victim-offender mediation,

and reparation negotiation programs. The

implementation of penal mediation at the

prosecution stage can be described as

follows:

a. The Public Prosecutor by studying the

criminal acts committed by the

perpetrators based on the criteria for

criminal acts determined by law can

offer a settlement of cases through

penal mediation to the perpetrators and

victims.

b. Penal mediation is carried out based on

the voluntary consent of the perpetrator

and the victim. If the parties agree to

carry out mediation, then the approval

for penal mediation is submitted to the

Public Prosecutor.

c. The Public Prosecutor can act as a

mediator or can make appointments

with customary mediators or certified

professional mediators.

d. The penal mediator brings together the

perpetrator and the victim.

e. The implementation of the mediation

process is carried out in secret, in the

sense that all events that occur and

statements that appear during the penal

mediation are not published by all

parties involved.

f. In this penal mediation, reconciliation

is held and the perpetrator is willing to

take steps/methods to make

compensation payments to the victim.

g. If the penal mediation does not reach

an agreement, then the criminal case

with the aspect of civil engagement

will be continued with the process of

delegating the case to the court for

examination in court and prosecution.

In this case, the penal mediator is not

allowed to testify for the non-

achievement of the penal mediation

agreement or for everything that

happens during the penal mediation

process.

h. If the penal mediation reaches a peace

agreement that is accepted by the

parties (perpetrators and victims), then

the deed of the agreement applies as a

final decision after obtaining a judge's

determination in the form of a peace

deed to serve as the basis for execution

and the basis for not prosecuting. The

final result of the agreement can be

used as a reason for the abolition of the

prosecution.

3. Penal mediation at the stage of examination

in court

The implementation of penal mediation at

the trial stage in court is a combination or

combination of the victim-offender

mediation model, traditional village or

tribal moods, and reparation negotiation

programs. The implementation of penal

mediation can be done as follows:

a. After studying the cases and criminal

acts committed by the defendant,

whether they meet the criteria for

criminal acts determined by law, the

judge can offer penal mediation as an

alternative to resolving criminal cases

peacefully to the perpetrators and

victims.

b. If the perpetrator and the victim agree,

then an agreement is held voluntarily

to participate in the settlement of the

case by means of penal mediation by

both the perpetrator and the victim.

c. Judges can act as penal mediators or

appoint customary mediators or penal

mediators from elements outside the

court who have met the requirements

and are certified.

d. Mediation brought together the

perpetrator and the victim, on this

occasion a reconciliation was held

between the victim and the perpetrator,

and an agreement was made to pay

compensation for the loss suffered by

the victim.

e. Penal mediation is carried out based on

the principle of confidentiality so that

all events that occur and all statements

that appear in the penal mediation

process must be kept confidential by

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the parties including the penal

mediator.

f. If the penal mediation does not reach

an agreement, the examination process

in front of the trial will continue until

the judge's decision is read.

g. If an agreement is reached between the

perpetrator and the victim who

mutually accept the results of the

agreement (reconciliation) and it is

agreed to pay compensation by the

perpetrator and the victim, then the

final result of penal mediation is stated

in the judge's determination in the form

of a peace deed to serve as the basis for

execution and the basis for the

perpetrator can no longer be prosecuted

and tried in the criminal justice

process, unless the perpetrator does not

carry out the peace deed.

4. Penal mediation at the stage of

implementing court decisions

The implementation of penal mediation

carried out at the stage of implementing

court decisions or serving imprisonment is

a combination of victim-offender

mediation models, traditional villages or

tribal moods, and reparation negotiation

programs.

Penal mediation at this stage serves as an

excuse to abolish the authority to carry out

a crime. The implementation of penal

mediation at the stage of implementing

court decisions (execution), is as follows:

a. For criminal cases that meet the criteria

of the law that can be resolved through

penal mediation, the perpetrator can

offer the victim to hold penal

mediation in order to eliminate the

implementation of the crime.

b. If the victim agrees to the perpetrator's

request for penal mediation, then the

approval for penal mediation is

submitted to the Public Prosecutor as

the executor.

c. The prosecutor as the executor will

research the chance of approval of the

penal mediation.

d. If an agreement has been agreed to

carry out penal mediation, then penal

mediation can be carried out with the

help of a penal mediator appointed by

the prosecutor or a penal mediator

outside the prosecutor's office who has

been recognized and certified or

through a customary mediator.

e. Penal mediation implements the

principle of confidentiality so that all

events and statements that appear in

penal mediation are confidential.

f. If the penal mediation achieves an

agreement to make peace and the

perpetrator agrees to pay compensation

to the victim, then the final result of the

agreement is submitted to the court to

obtain a court decision.

g. The results of the reconciliation

agreement and the payment of

compensation by the perpetrator to the

victim are poured into a judge's

determination in the form of a final

peace deed, and is used as an

executorial basis and the basis for

acquitting the perpetrator (convict)

from the crime he has not served.

The criminal law formulation policy to make

penal mediation an alternative for solving criminal

cases in the future is a building on the

implementation of penal mediation, namely

planning/policy on penal mediation procedures or

mechanisms in the settlement of criminal cases in

the future criminal justice system. The policy of

implementing penal mediation in the settlement of

criminal cases in the criminal justice system,

includes penal mediation at the stage of the

investigation, prosecution, examination at trial, and

implementation of court decisions.

The construction of penal mediation is an ideal

alternative for solving criminal cases in the

criminal justice system in Indonesia, it is time to

prepare the legal basis and implement regulations.

In order to provide a legal basis and implement

regulations for penal mediation as a means of

resolving criminal cases, it is important to renew

and restructure the criminal justice system as part

of criminal law reform. The renewal of the criminal

justice system is needed to provide a place for

penal mediation as an alternative for resolving

cases. The reform of the criminal justice system

can be started by providing a legal basis for penal

mediation, namely making changes or revisions to

laws and regulations relating to the process of

resolving criminal cases by adding a new

institution, namely penal mediation into the

criminal justice system in Indonesia.

The renewal of the criminal justice system

needs to be carried out through a comparative and

comprehensive approach to the development of

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thinking that develops at the global and local

levels. At the global level, penal mediation as an

alternative for resolving criminal cases is quite

advanced. Several countries have recognized and

implemented penal mediation as an alternative for

resolving criminal cases that are integrated into the

Criminal Code, Criminal Procedure Code, and

special laws. At the local level, criminal law reform

in Indonesia cannot be separated from the existence

of laws that live and develop in indigenous peoples

which are constitutionally recognized in Article

18B paragraph (2) of the 1945 Constitution, which

reads: "The state recognizes and respects

customary law community units and their

traditional rights as long as they are still alive and

in accordance with the development of society and

the principles of the Unitary State of the Republic

of Indonesia, which are regulated by law". In

customary law in Indonesia, the process of

resolving conflicts that occur among indigenous

peoples is carried out by means of peace, this

resembles or can be equated with the process of

resolving criminal cases through penal mediation.

In the context of reforming the criminal justice

system with the intention to provide a place for

penal mediation as an alternative for resolving

criminal cases, it is necessary to make changes or

revisions to several laws and regulations, namely

the Criminal Code and the Criminal Procedure

Code.

6 Conclusion

The settlement of criminal cases through the

criminal justice process is not an easy process,

because it involves many components of the

criminal justice system, many stages must be

passed, a lot of time and money is needed to

resolve criminal cases, very focused on the

perpetrators of criminal acts, without paying

attention to or involving the interests of the victim.

harmed by the perpetrator. Efforts to seek justice in

the settlement of criminal cases, of course, can no

longer rely solely on the criminal justice process,

but there must be an alternative settlement

involving the conflicting parties and a neutral third

party.

In reforming the national criminal law, it is

necessary to remodel (reconstruct) the settlement of

criminal cases that accommodates the settlement of

criminal cases through the criminal justice process

and penal mediation in order to improve the

Indonesian criminal justice system to be effective

and efficient. The criminal case settlement model

can be formulated into the Draft Criminal Code and

the Draft Criminal Procedure Code.

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Policy)

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stages from the formulation of the problem to the

final findings and solution.

Sources of Funding for Research Presented in a

Scientific Article or Scientific Article Itself

No funding was received for conducting this study.

Conflict of Interest

The author has no conflict of interest to declare that

is relevant to the content of this article.

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