University of Trunojoyo

laculty ol Law
vadura I University
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Faculty ofEconomics
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Hang.Tuah Univeruity
Faculty 0f Law
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I Law |
Faculty of
@ffi.rru*ffi/H.
Dr Soetomo Unrversity I Universitv of pembanqunan Nasional
,,Veteran,,Jawi
Timur
Faculty of Law

nternational Conference On
I

Law, Economic And Social

(rclEs 2017)

The Challenge of LaW

Economic and
Social in Local
and Global Issues
Swiss-Belinn Tunjungan Surabaya
September 1 1-12, 2017
 CONTtrNTS
LAWTHEME
- THE CHALLANGE FACING ASEAN COUNTRIES IN SECURINC THE ECONOMIC,
SOCIALAND CULTURAL
Associste Prof . Dr. Vu Cong Giao ... 1

- ENSURING THE RIGHIS FOR TERRORET SUSPECT : ARE WE MOVINC BACi(NARDS ?

It4ildn Istiqonnh ... 9

- THE ROLE OF N4ARINE SECURITY AGENCY (BAKA\4LA) AS SEA AND COAST

GUARDS IN MAINTAINING THE SOVEREIGNTY OF INDONESIAN TERRITORIAL
\AIATER
Ril;n Kurnialr1... 16

- DN/ERSION AS AN ALTERNATN/E SETTLEMENTT FOR CHILD CRN\4D{AL CASE FIA\TING

CONFLICT \AIITH LAW IN THE PERSPECTIVE OF THE BENEFIT PRINCIPLE
Arti Purutati ...26
- URCENCY OF LOCAL GOVERNMENT REGULATION TO MINIMIZE THE CRIMINAL
ACTS OF HUMAN TRAFFICKING IN INDONESIA
Arif Rohnmn ...31

- EQUITABLE PRINCIPLES IN MAI{ITIME BOUNDARY DELIMINATION BETWEEN

INDONESIA AND SINGAPORE AFTER THE RATIFICATION OF TERRITORIAL SEA
TREATY2O'I7
Chomariyah...36
. THE TERMINATION OF SENDING INDONESIAN MIGRANT WORKERS (TKD AS AN
EFFORT TO PROVIDE PROTECTION
De-oi Rahayu ...43

- THE INCORPORATION OF INTERNATIONAL HUMAN RIGHTS NORMS WITHIN IN-

DONESIAN CONSTITUTION
D ewi Nurainnti, Aditia Sy aprillah ... 50

- PATENT LICENSE AND ROYALTY FOR INVENTOR

Djulaekn ...55
- MARINE ENVIRONMENT PROTECTION FROM G]L POLLUTION BY TANKER
THROUGH THE CONCEPT OF "BLT]E ECONOMY" IN INDONESIAN LEGAL SYSTEM
Elly Kristiani Purunendah, Dewn Gede Sudika Mangku ... 60
- CRIMINALRESPONSiBILiTY ON DRIVER INSTRUCTOR BASEDARTICLET1 LAW NUM-
BER 22 YEAR 2OO9
ErnM Rusdiana, Yesika Sianipar ... 67

- INVESTMENT DISPUTE SETTLEMENT IN INDONESIA

i
EitiDclinnn H2...72
. BUILDING THE EFFECTIVE SUPERVISION MODEL BY THE GOVERNOR IN THE
FRAMEWORK FOR PREVENTING THE PROBLEMATIC REGIONAL REGULATiON IN
REGENCY GOVERNMENT
Fatkhtn'ohnran, Dioko lnrbawani, Miftachus Sjuhad ...77
 FOR CHILD
DIVERSION AS AN ALTERNATIVE SETTLEMENT
CRIMINALCASEHAVINGCONFLICTWITHLAw
INTHEPERSPECTIVEoFTHEBENEFITPRINCIPLE
Ani Purwati
Faculty of Law, Wijaya Putra Universitl" Surabaya' Indonesia'
EmaiL aniPurwatil 982@gmail'com

' Abstract
Crimitutl Cnse flsltirt[ Con'flict 711i5fu l-s:x1t in the
Diuersiort as mt Altmratitte Settlemai.for Chitd
approach' comparatirre
pa.specti,e o.f the Barcfit Pritrciltle,sing statute approach, conceptual
int issue are: (1) philosophy of diversion
approach, u.,a .uru-'upp;;;[. q*,"io.* of principle as a
arrangements for childien that have conflict
n'ith the law, (2) the benefit
conflict r'rrith the lau' in children criminal
consideration of diversion for children having
of ihildren harring conflict u'ith
justice system, (3) the implementation- of the diversion
diversion effangements for children having
the lar,r,. Based on the discussion of philosophy
using diversion tool that
confiict u,ith the law found that restoratirre ,rsti." 1P!Iou:h
became the basis of Lar,r, No.11 of 2072 on
the Child Criminal Justice System complied
suit to the value of philosophical'
u,ith relevant international conventions and even
Child Protection Act and the values of
political, cultural and normative aspects of the of
as consideration of the implementation
Pancasila. Meanwhile, the benefit pri.,.iptu
to be used as the basis proportionally'
diversi6n through economic analysis of dw need
(Family Court), and also
as also done in Australia (Family Group Conference), ]1|u.
stage of handling children cases, both
China (Victim offender Reconciliatio^;, i,-. every
slistem in accordance with the best interests
inside and outside of the Child Giminal Justice
for the child.
system, Diversiory Restorative ]ustice
Keywords: Child, Conflict with I-aw Criminal Justice

I. INTRODUCTION
Thepreventionandpreventionofchildcrimethroughdiversion(penalmeans)ableto benefit
investigatiory prosecution' and court' The
emphasize the problem oicrime at the level of by society
to conJider thl costs or burdens bome
principle approach to economic analysis is able law with
on the effectiveness of criminal sanctioRs-Diversion is a form of renewal of criminal
of
according to the international instruments
restorative justice and proportional approaches rules accommodated
the Convention on the Rights of the Child, r"q*g
n rr"t, niyuait Guideline' Tokyo
and the criminal justice system of
in the national instruments of child prot".tLr, legislation
and Valueq, of Pancasila'
children either philosophically, politically, culturaliy
No'11 of ZALZ onthe criminal justice system
The evaluation of the legal arrangements in Law
Article 9 paragraph 2 letter c has the
of children namely the interpretation of a inconsistent
the level of investigation' prosecution' and
interpretation of inconsisteni against erii.tu 7 of
diversion agreement contained in Article 9'
courts must be attempted to diiersify while the
shall be conducted by the investigator'
paragraph 2, "diversion agreement and implementation" and
at every level of investigation, prosecution
which becomes the norm of conflict.again t tt i ai.r".rity Children
lnstitute for special Coaching
trial. Evaluation of Child Protection Institution, The
(LPAS)' Welfare lnstitution (LPKS) have not
(LPKA), Temporary Child Placement Institution
is a consideration of diversion through legal
achieved'the ideal result. The benefit p.i.,.ipr"
economic analysis that can be used as a basis
for proportional consideration as well as in
a-]so Chlna.(victim offender
Australia (Family Group Conferencel, lrp"n (Family'Cou:.:],.""+
orrtside the child criminal
Reconciliation), in every stage of handliig oi children.Witlril-ana
child'
justice system in a.coriuttt" witt"' the best interests of the
 As consideration under the authority of investigations, the prosecutor, or the judge can
make a diversion can be a rational approach in implementing the policl, consideration of crime
and the application of sanctions with an economic approach that is the lau. used economic tools
to not remove the element of fairness to the basic elements of a value (value), usability (utility),
and efficiency (efficiency) that is based on human rationality, r,r,hile taking into consideration the
effectiveness of criminal sanctions itself in accordance to Law No. 11 in2072.
Comparative law enforcement diversion between Indonesia and other countries characteristics
completion of criminal cases of children r.t ith formal models, namely in Australia (Family Group
Conference), japan (Trial Court Family), while China (Victim Offender Reconciliation (VOC) in
each of ti-re judicial system good investigation, prosecution and court formed a commission for
mediation (PMC). Characteristics of the implementation of the diversion of the above either in
the investigation, prosecution, courts have requirements that n-rust be passed that the victim
had forgiven and receive the compensation, the offender there able and agree to do the coaching,
perpetrators recovery and improved beharrior specified as a condition of diversion in the form
of suspension of sentences and forms of alternative sanctions.
II. METHOD AND MATERIALS
The research method used by using statue approach to analyze child protection legislation
and juvenile justice system which is compatible nith intemational lau, regulation, ra,hile conceptual
approach and comparative approach bl, anaiyzing the concept The application of restorative
justice in the form of diversion from the countries of Australia, ]apan, China. Primary legal
materials are child protection legislation and the juvenile justice system. Secondary materials
are BAPAS data, Polrestabes Surabaya. Technlques Data collection using Iiterature and qualitative
appropch (interview) investigation, BAPAS, Rutan, the Court can map the weaknesses of the
hw and its implementation. Analysis of juridical legal materials in both quantitative and qualitative
data descriptively capable of mapping the weaknesses of the handling of justice diversion re-
storative justice at the level of investigation, prosecution and trial.

III.RESULTS AND DISCUSSION

Arrangement seLtings in penal policies in the intemational criminal justice system of children
instrument namely:
1. The Convention on the Rights of the Child; Article 37 of the CRC (arrest, detention and
imprisonment as a last resort) and 40 paragraph 3 letter b : steps to deal with children
without due process of justice, the purpose of the conversion of human rights and protection
and handled in accordance with the conditions and Propositional
2. Beijing Rules; Article 77.4The Power Does Not Continue Process, The Diversity Obiective
Avoids the Negative Effects in EVery Process (Article 11) Objectives of the Child Welfare
Progressing System, Principlq of proportional States must make preventive efforts, non-
custodial institutions, institutions that handle = Police, Prosecutors, or Other Institutions
(Article 1 1.2). ., r
3. Toklro Rules (minimum standards of non-expropriation mei#res): nondetention of perpetratorg
criminal acts, victims' rights, public interest (Article 5), diversion protection purPoses/ crime
prevention (Police, Procurator of Other Institutions), crime prevention and establishment
Non-cr:stodial government agencies) non-govemmental and non-govenunental organizations =
areas of health, educatiory manpower, non-custodial efforts in the form of research, training,
technical assistance in child crime prerrention programs.
4. Riy6d1l guidelines: Prevention of juvenile crime, Article 56 (diversionary purPoses to prevent
stigmatization, victimization, further criminality) and Article 58 (diverting children from
the judicial system).
The national versioning setting is reviewed in the philosophical aspect
1. Ethical Value: religious, humanist, kinship, just society.

2i
 Z. Moral value becomes the orderly source of the nation in Pancasila namely Sila ketuhanan:
invitation to help others in difficulties, humanity fair and adapt: activities kept away from
commercial nature, unity: value sense of responsibility, social solidarity, u'illing to sacrifice,
Democracy led by wisdom Representative wisdom: ihe development of consenzus deliberation,
-Indonesia:
social justice for throughout fair attifude, maintaining the balance of rights and
duties.
Ideology value : opening of alenia4 Constitution and stated in MPR RI Decree No. 6 of
2001
3.
(ethics lf nation u.,a rtu-tu; that is ethics of lau, enforcement thit is fair, law enforcement
of
iranquility of life together and law side r,r,ith justice, lau' enforcement done justly, not dis-
crimination, without coercion.
While the National Political Values Approach
1. in the values of National Politics of Child Protection namely the Preamble
of the 1945
Constitution alenia-4 Constituhtn synchronized with the rules of Beijing rules'
2. Cultural values: cultural values of Java, religion and Pancasila

Legal arrangements on diversitv are rerzieu,ed from the National legal guidelines:
1. The Lau, No. 8 of 7979 about child r'r'elfare -
2. The Lau, number UU no. 39 of 1999, (Human Rights)Article 64 paragtaph 3, 4,5
: every
child is deprived of his or her liberty unlan,fuli), arrest, detention, may only be exercised
and carried out last resort.
3. UU no. 35 Year 20i4 (Child Protection) Article 64 letter g (avoidance of arrest, detention or
imprisonmen! except as a last resort and in the shortest possible time
D. LAW NO.11 OF 2012 (SSPA), ARTICLE 2 LETTER I (DEPRIVAIION OF FREEDOM
OF INDEPENDENCE AND PROSECUTION AS A LAST RESORT).
Based on the analysis of economic principles in the regulation of punishment there are
several principles that are used is the priniiple of Equilibrium Compensation used in criminology
approach to the evaluation of the provisions of iegislation that is Law no. 3 Year 1997 concern-
inf luvenlle court that is about definition of brat, age limit, which is not in accordance with
purpose of criminal justice system. The benefit princif,ie of avoiding the imposition of sanbtions
*uy the principle of proportionality. The Correlated Productive Principle subversion
"*pnusize On the
has met the piincipies of legislative establishment which, as in Act no- 12 Year 2011
establishment of legislation. Proportional principle of imposition of criminal sanction with
track system modeican be converted criminal sanction as formulation of economic value of
victim and state losses.
The benefit principle is reflected in the implementation of the diversion in Law no. 11 of
2072
with some considerations of the investigators, prosecutors and judges in the form of agreements
agreed upon by victims, families and communities in the form of victim return (Article 10
plrrg.rpi., 2 a) and the value of the victim's loss is not more than the minimum.local provincial
miniirum wage (Article 9 paragraph 2 letter d). The divergenie pattern in mixed system law
with Indefinite sentences and Indeterminate sentence system. The Indefinite Sentences system
is embraced in the legislation policy in the formation of legislation using the provisions of the
minimums to limit the authority of the judge in the imposition of a criminal. The Indeterminate
sentence system is embraced in the judicial system where the burden of criminal sanctions is
uncertain by granting the judge {reedom to determine the severity of the crime in each case-
Implementation of Diversity in [rdonesia at every stage of investigation, prosecution and trial
namely: !

1. Level of Police: Investigation

The investigation stage is the initial stage of the criminal justice Process. In this stage it is
possible thit the investigator does not continue the criminal act in ihe criminal i'ustice
pro."rr. Therefore, this stage is the most strategic stage to mediate certain criminal acts in
order to avoid the criminal justice process by finding solutions that benefit all parties of

28
 perpetrators and victims of crime- The arrest of the child shall be made for the purpose of
investigation, the investigation shall be coordinated with the Prosecutor n ithin a maximum
of 1 x 24 hours (one time twenty four hours) from the commencement of the investigation.
The coordination is intended to provide guidance and vision for the completion of the file
can be fulfilled formally and materially, aiming for children not to be harmed in the next
stage. The child r,r,ho is arrested shall be placed in the special service room of the Child, in
the case of the special service room of the chiid not yet in the area concerned, the child is
entrusted to the LPKS.
2. Prosecution
It
The divergent implementation in penal media at the stage of prosecution can be described
as folior,r's: ,{
1) Public prosecutors by studying crin-rinal offenses committed by perpetrators on the basis
of certain criteria may offer mediation to victims and perpetrators of criminal offenses.
2) Mediation is carried out on the basis of voluntary consent from perpetrators and victims
of criminal offenses. If both parties agree to mediation, then the consent to mediation
shall be girren to the public prosecutor.
3) The prosecutor rnay take the position of mediator or appoint a certified mediator.
4) Mediators bring together perpetrators and victirns of criminal acts
E. THE IMPLEMENTATION OF THE MEDIATION PROCESS IS CARRIED OUT IN
SECRET, IN THE SENSE THAT ALL EVENTS THAT ARISE DURING -MEDIATION
CAN NOT BE PUBLISHED BY ALL PARTIES INVOLVED
In penal mediation does not reach an agreement, then the criminal case will be continued
by examination in court by prosecution of his crime. In this case the mediator can not testify
against the r-rnavailability of mediation agreement or for anything that occurs during the mediation
Process. If the mediation reaches a peace agreement accepted by all parties, then the deed of
agreement shall serve as a final decision and can not be held prosecution, so that it may serve
as a reason for the removal of the claim.
3. Level of Court
The implementation of the diversion, among others:
. 1) The judge after studying the cases and criminal acts committed by the defendant, may
offer penal mediation as an alternative settlement of the case with the peace of the parties.
2) If the parties agree, voluntary agreements are made to follow the settlement of the case
by means of mediation by both the perpetrator and the victim.
3) A judge may act as a qualified-and certified mediator or mediator outside the court.
4) Mediation brought together. the perpetrators and victims, on this occasion
IV. CONCLUSION
Based on the discussion of the results of this study, it c"dii Ue concluded as follows:
1. The basis of diversified regulatory philosophy in the handling of children of legal conflicts
as an.altemative to the final effort and in accordance with the objectives of the criminal justice
of children is required to study the philosophy gf the foundation of international and
national legal instruments namely the values of Pancasila which contain the principle of
punishment proportionally and the principle of best interests for the child The best interest
of the child).
2. The implementation of diversion in the criminal justice system of children at the level of
investigation, prosecution, trial has the authority to be diverted if synchronized to the
comparative model of the handling of the State, Japan, China and Indonesia divergence of
different divergent implementation characteristics. Differences in implementation are diversified
r,r,ith the form of mediation, conciliation, deliberation of family. groups as an alternative to
the divergence of integrated provisions in the provisions of the jtivenile justice iaw.

:9
 Based on the results of this study, some of the suggested things
are the follorn'ing:
diversion which
1.. It is necessary to amend the Law on Child Taxes mainly related to the
includes:
c
a. The definition of the diversion provided for in Article 9 paragraph 2 sub-paragraph
which may have a inconsistent interpretation of Article 7 of the level of investigation,
the diversion agreement
prosecution and trial shall be pursued for a conversion whereas
the investigator' Against
contained in Article I parugrapt, 2 letter c shall be conducted by
diversions at every level of investigation, prosecution and trial'
to the parents, so
b. Maximized recommendation of Breathing Litmas other than returned
0n the Child
as to maximize the new institutionsmandated in Law no' 11 Year
2072
Criminal Justice Svstem.
Education of Children (LPKA),
z. The existence of nen institutions of the institute for Special
(LPKS)'
the provisional Chiid Placemeni Agency (LPAS), the ideal welfare institution

V. ACKNOWLEDGMENTS
By giving thanks the international research journal is done well u'ith the
Dikti program
and some
proviiei lecturer research opportunities and facilitated by-Wijaya Putra University' of
as well as friends and colleagues
good lar,r, enforcement agencies, NGo (Non Government)
children's observers all over Indonesia.

VI.REFERENCE
University Press'
Braithwaite John, 1989, Shame, Crirue and Reintegration, Cambridge: Cambridge
sociological Approach' Boston:
Bynum, iack E dan Thomson, william E,2002,luaarile Delhtquency a
Allyn and Bacon A Peason Education Company'
Consedine, ]im, 2003, Restoratiae Justice Healirtg The Effects of Crime.
New Zealand: Ploughshares
Publication.
Gosita, Arif, 7989, Mnsalah Perlindungan Anak. ]akarta: Akademi Pressindo.
of crime' Holland:
Hoefiragels,G. Peter, 7977, The Other side of Crimilnlogy An Inaersion of the Concept
Kluwer-Deventer. I

terhadap Anak yang

Marlina. 2007, "Diaetsi dtut Restoratiue lustice sebagai Alternatif Perlhdungan
Berhadapan'dengan Hukum". Medan: Pusat Kajian dan Perlindungan
Anak.

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