The Diversion Based on Philosophy of Restorative Justice Indonesia Version: Between Ideality and Reality in Settlement of Child’s Cases by An Investigator

Abstract

The purpose of this article analyzes the alignment between the diversion which was made by the investigator and the concept of restorative justice Indonesia version of the Child Criminal Justice System and the restorative justice philosophy according to Howard Zehr. This article is based on the results of juridical-empirical research in Police Resort of Malang - East Java as one of the Police Resort that had succeeded in doing diversion in the last 5 years. The data collected through interviews, observations and documentary study on decisions of the court were analyzed by using prescriptive techniques. Based on the results of the research showed that based on Act of the Child Criminal Justice System. The investigator had done diversion as the only technique to achieve restorative justice of the Indonesia version. Prior to the application of the on the Act of the Child Criminal Justice System, the penal mediation technique was used by the police for the settlement of several child’s cases based on the discretion. The difference between the two techniques based on the status of the child is that the child's diversion technique is designated as a suspect in advance by the investigator before being diversified, then if the diversion is successful then the child's case is terminated. While in penal mediation technique, before the mediation process of child penal is not always specified as a suspect in advance.  The investigator had been able to carry out all five aspects in the characteristic of diversion based on the restorative justice in the Indonesia version (i.e aspects: requirement, objective, process, result, and indicators of restorative justice elements), but not all indicators in every aspect were capable. Normatively, the provision of diversion in Act of the Child Criminal Justice System had been suitable with the philosophy of restorative justice as said by Howard Zehr. The investigator had not been able to achieve all the indicators of diversion based on restorative justice  Indonesia version and Howard Zehr's criminal philosophy, because it had not presented all parties in the deliberation of diversion so that the indicators of restorative justice  in the form of recovery of perpetrator, victim, and the community had not been optimally fulfilled.

Keywords: Diversion, Philosophy of Restorative Justice, Indonesia, Child, Investigator