Mitigating Factors in Criminal Law

Mitigating factors in Criminal

Law
 Delict finished
 All element of crime have been fulfilled by the offender
 The perpetrators are threatened with a punishment that is
lighter than they should (compared to the perpetrators in
general)
 It is a legal reason for imposing a criminal sentence less
than the punishment
 For juvenile, mitigation has begun since the punishment
threat
 Mitigating factors in Criminal Law
1. General :
Juvenile
 Regulated in Law No. 11/2012 (effective from 30 July 2014)
which replaces Law No. 3/1997 concerning Juvenile Courts (Law
No. 3/1997 which replaces Art. 45-47 of the Criminal Code)
 Ps. 45-47 KUHP no longer applies ,
 However general principles and other rules in the Criminal
Code and the Criminal Procedure Code remain applicable as long
as they are not specifically regulated by Law NO. 11/2012
2. Specific :
Previlege delict. Co: ps. 308.
Issues ?
Attempt (ps. 53 KUHP) ?
Provide assistance (ps. 57 KUHP) ?
According to Mr. Utrecht and R-KUHP it can be
considered as Mitigating factors.
However, others scholars argue it is not mitigating
factors.
 The Perpetrator not fulfill all elements
Law No. 11 year 2012 Juvenile
Justice Systems
Effective since 2014
Replace Law No. 3 year 1997 about Juvenile Court
 Age Limit
Year No. 11/2012:
Juvenile delinquency / Juvenile who conflicts with the law /Anak
yang berkonflik dengan hukum
children who are 12 years old, but not yet 18 years old who are
suspected of committing a criminal act

So there was a change from the previous law (Law No. 3/1997)
by increasing the minimum age limit.
According to Law No. 3/1997
Juvenile delinquency/Anak nakal is:
Those who are 8 - <18 years old and never married can
be submitted to the Children’s Court
If commited a crime < 18 y.o but already married : Use
KUHP
 :

The types of offences that can be punished (for children)

Same as crimes that can be committed by adult,
namely:
Crime based on what is regulated in Legal Resources.
Indonesian Criminal Code: Offences and
Negligence
Criminal Law outside Criminal Code: Law about
Narcotics
Administrative Law/Administrative regulation
that contained criminal law: Tax law
Diversion/ Diversi
In Juvenile Justice System, using a diversion is an
obligatory
Diversion is the transfer of settlement of juvenile cases
from criminal justice processes to processes outside
criminal justice
Can be done at the level of investigation, prosecution
and examination in the district court
Can be Implemented if the criminal offense is
threatened with imprisonment under 7 (seven) years;
and not a repetition of a crime
Article 70 Juvenile Justice System
The lightness of the act, the personal condition of the
child, or the circumstances at which the act was carried
out or which occurred later can be used as a basis for
judges not to impose criminal sanctions or take action
with considerations of the aspects of justice and
humanity
 The types of punishment
according to Law No. 11/2012
Main Punishment: (Article 71 ayat (1))
a. Caution/Notice Crime/Pidana Peringatan
b. Punishment with conditions/pidana dengan syarat:
1) Treatment outside institution
2) Social service; atau
3) Supervision
c. Workshop
d. Treatment inside Institution ; dan
e. Imprisonment (special for juvenile)
The types of punishment according to Law
No. 11/2012
Additional punishment: (Pasal 71 ayat (2))
a. Deprivation of profits derived from criminal acts; or
b. Fulfillment of “Adat” obligations
The types of punishment according to Law
No. 11/2012
Punishment with conditions/Pidana dengan syarat:
- Can be imposed when the judge will impose max 2
years imprisonment
- The maximum period of conditional punishment is 3
years
 The types of punishment according to
Law No. 11/2012
 Social service punishment:
- A minimum of 7 hours and a maximum of 120 hours

• Supervision
- A minimum 3 months and a maximum 2 years

• Workshop
- A minimum 3 month and a maximum 1 year
- this punishment is replacement of fine punishment

• Treatment within institutions

- A minimum for 3 months dan a maximum 24 months
 Imprisonment

• It can be imposed if the child commits a serious crime or

criminal act with violence (the situation and actions of the child
will endanger the community)
• The maximum sentences is 1/2 of the maximum punishment for
adults
• Special minimum is not valid
• If a criminal offense committed by a child with capital
punishment or life imprisonment, the sentence imposed is a
maximum of 10 years imprisonment
• Provisions regarding imprisonment in the Criminal Code is
applicable insofar as they do not conflict with the SPPA Law
Imprisonment
Implemented in LPKA (Lembaga Pembinaan
Khusus Anak/Child Rehabilitation Institution)
Rehabilitation in LPKA is carried out until the
child is 18 years old
Children who have undergone ½ of the length of
rehabilitation in LPKA and have good behavior are
entitled to parole
Only used as the last resort
 Treatment/Tindakan:
Article 82 paragraph (1):
a. returned to the parent/guardian;
b. submission to someone;
c. treatment in a mental hospital;
d. treatment in LPKS (Lembaga Penyelenggaraan Kesejahteraan
Sosial);
e. the obligation to follow formal education and/or training held
by Government or private bodies;
f. revocation of driving licences; and/or
g. improvements resulting from criminal acts. 
Treatment
Children who are not yet 14 years old: can only be
subject to treatment (Article 69)
Treatmen can be submitted by the Public
Prosecutor in their indictment, except for criminal
offenses which are threatened with imprisonment
for a minimum of 7 (seven) years (Article 82 par.
3))
Treatment care at LPKS, Obligation to attend
education, Revocation of driving license is
imposed for a maximum of 1 year.
 The types of punishment
according to Law No. 11/2012
• Does not contained:
No Capital Punishment
No Life imprisonment
No Light imprisonment
No fine punishment
No deprivation of certain rights
No publication of judicial verdicts