Prevention & Practices - Presented by : John Izaac Minotty Pattiwael, S.H. (Director of Mawar Saron Legal Aid Institution, Republic of Indonesia) ...

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Prevention & Practices - Presented by : John Izaac Minotty Pattiwael, S.H. (Director of Mawar Saron Legal Aid Institution, Republic of Indonesia) ...
Prevention & Practices
                                 Presented by :
              John Izaac Minotty Pattiwael, S.H.
(Director of Mawar Saron Legal Aid Institution,
                         Republic of Indonesia)
            Geneva, Tuesday, 27th January 2015
             World Congress on Juvenile Justice
Prevention & Practices - Presented by : John Izaac Minotty Pattiwael, S.H. (Director of Mawar Saron Legal Aid Institution, Republic of Indonesia) ...
Prevention Method : Legal Counselling
  Our office hold numbers of legal counselling through seminars &
   Legal Clinic periodically, which aim to provide sufficient legal
   knowledge to children, parents, school teachers, and the society on
   the prevention of juvenile delinquency;
 Seminars usually held in schools, churches, community centres, and
   detention centres;
 Materials for the seminar based on the dissemination of the recent
   positive laws on Juvenile Justice that currently in force :
 Law No. 35/2014 on the Amendments of Law No. 23 /2002 on Child
   Protection
 Law No. 11/2012 on Juvenile Justice System
Herewith I attached the Substantive Issues & pamphlet that we are
using for prevention method through legal counselling in a form of a
Seminar & Legal Clinic, etc.
Prevention & Practices - Presented by : John Izaac Minotty Pattiwael, S.H. (Director of Mawar Saron Legal Aid Institution, Republic of Indonesia) ...
Substantive Issues on
Juvenile Justice System in
the Republic of Indonesia
Prevention & Practices - Presented by : John Izaac Minotty Pattiwael, S.H. (Director of Mawar Saron Legal Aid Institution, Republic of Indonesia) ...
Law No. 11 / 2012 on Juvenile Justice
     System
In general, the basic difference between Law No. 11/2012 on Juvenile Justice System and Law
No. 3/1997 on Children’s Court is the new principal of Restorative Justice which implemented
through diversion (Art.5 & 6 on Law No. 11/2012)
    Several principal aspect that has been changed through Law No. 11/2012 :
a.   Age of criminal liability on children : 12 years old – 18 years old (compare to Law No.
     3/1997 : 8 years old - 18 years old)
b.   The new terminology is Child before the Law consist of Children in Conflict with the Law,
     Child Victim & Child Witness (comp. Law No. 3/1997 terminology used “Naughty Children”)
c.   Obligation to Police Investigator, Public Prosecutor & Judge to implement diversion
     measure in every stage of the case, pursuant to Art. 7 Law No. 11/2012 on Juvenile Justice
     System (Diversion process is unknown to Law No. 3/1997)
d.   Rigid regulation that stipulates that detention toward Children MAY NOT be implemented in
     a condition where the child obtains a warranty from parent/custodian/institution stating
     that stating that the Child shall not escape, eliminate or tamper with evidence and/or
     repeating the criminal act, pursuant to Art. 32 (1) Law No. 11/2012 (not stipulated in Law
     No. 3/1997)
Restorative Justice

   Restorative Justice is a process whereby all parties with a stake in
    particular offence come together to resolve collectively how to deal with
    the aftermath of the offence and its implication for the future (Tony
    Marshall)

   Restorative Justice : an alternative delinquency sanction focused on
    repairing the harm done, meeting the victim’s need, and holding the
    offenders responsible for his or her actions. Restorative Justice sanctions
    use a balanced approach, producing the least restrictive disposition
    while stressing the offender’s accountability and providing relief to the
    victim. The offender may be ordered to make restitution, to perform
    community service, or to make amends in some other way that the court
    orders. (Bryan A. Garner (Editor in Chief) : “Black’s Law Dictionary, 9th
    Edition” : 2009, page. 1428)
Flow Chart : Criminal Case for children under 12
      years old (Art. 21 Law No.11/2012)

                          CHILDREN IN CONFLICT WITH THE LAW

                    Police Investigator-Probation Officer-
                                Social Worker

Child being returned to
        parent                                    Participation in educational programs, coaching
                                                 and mentoring conducted in government agencies
                                                  or Institution of Social Welfare at Central & Local
                                                        levels, no longer than 6 (six) months
Flow Chart : Diversion according to Law No.
      11/2012
                                  Diversion can only be implemented
                  Children in
                                  on criminal penalty under 7 (seven)
                 Conflict with
                                    years of imprisonment & not a
                   the Law
                                       repetition of a criminal act

                    Diversion
                    MUST be
                  implemented

                                         District Court
   Police                        Supreme Court Regulation No.
                 Prosecution      4 / 2014 on Guidelines of the
Investigation
                                 Implementation on Diversion
Flow Chart : Diversion according to
                 Supreme Court Regulation No. 4 / 2014

 Children in      Head of District Court issue a      Upon receiving the Court
Conflict with      Court Order regarding the        Order regarding the Diversion
  the Law            Diversion Agreement              Agreement, the Presiding
                                                    Judge of the case issue a Court
                                                     Order to terminate the case
                    Diversion
District Court
                    Agreement
                                                   Failure to fulfil the Diversion
 Diversion           Diversion                       Agreement (based on the
 Facilitator          Forum                        report of Probation Officer of
                                                      the Correctional Centre
                                                    addressed to the presiding
                                                     Judge) resulted in the re-
                                                        opening of the case
Children’s Rights in General (According to Child
 Protection Law – Law No. 35/2014 jo. Law No. 23/2002
Children’s Rights                                                                          Regulation
Right of Identity                                                                          Article 5
Right on religious practice                                                                Article 6
Right to know his/her parents, raised, and being cared by his/her own parents              Article 7

Right on access to healthcare & Social Security                                            Article 8
Right to education, protection from sexual crimes & abuse by : teacher, educator, fellow   Article 9
student and/or other party, Child with Disability has right to special education

Right to rest, play and having a recreation activity                                       Article 11
Protection (conducted by teacher, educator, public servant, and/or the society) toward     Article 54
children within school environment from physical abuse, psychological abuse, sexual
crime, and other crimes perpetrated by teacher, educator, fellow student and/or other
party
Child’s Protection in General (According to Child
  Protection Law – Law No. 35/2014 jo. Law No.
  23/2002
Children’s Rights                                                        Regulation

Protection from the abuse of political activity                          Article 15 a

Protection from involvement in arm conflict                              Article 15 b

Protection from involvement on social unrest                             Article 15 c

Protection from involvement on violence act                              Article 15 d

Protection from involvement in war                                       Article 15 e

Protection from sexual crime                                             Article 15 f

Protection from being object of abuse, torture, and inhuman sentencing   Article 16 (1)
Protection for Children before the Law (According to Child
    Protection Law (CPL) – Law No. 35/2014 jo. Law No. 23/2002 &
    Juvenile Justice System (JJS)-Law No. 11/2012)

Protection for Children Confronting the Law                                               Regulation
Arrest, detention or imprisonment toward children ONLY applicable according to the law    Article 16 (3) CPL
and can ONLY be implemented as last resort
Detention toward children MUST NOT be implemented in terms that the Child has             Article 32 (1) JJS
parental/custodian and/or an institutional warranty stating that the Child shall not
escape, eliminate or tamper with evidence and/or repeating the criminal act

Detention toward children can ONLY be implemented under these circumstances : the         Article 32 (2) JJS
child has reached 14 (fourteen) years of age or above & suspected of committing a crime
with 7 (seven) years imprisonment or above

Every Child who becomes victim of crime or perpetrator of criminal act having the RIGHT   Article 18 CPL
to a legal counsel and other assistance
Within each stage of investigation, a Child MUST be provided with Legal Aid and           Article 23 (1) JJS
accompanied by community supervisor or other supervisor
Protection for Child Victim & Child Witness (According to
     Child Protection Law (CPL) – Law No. 35/2014 jo. Law No.
     23/2002 & Juvenile Justice System (JJS)-Law No. 11/2012)
Protection for Child Victim & Child Witness                                                      Regulation
Every Child who becomes victim of crime or perpetrator of criminal act having the RIGHT to a Article 18 Law
legal counsel and other assistance                                                           CPL
Child Victim and/or Child Witness having ALL the rights of protection pursuant to the governing Article 89 JJS
law
Child Victim & Child Witness also have the rights :                                              Article 90 (1)
a. Medical Rehabilitation & Social Rehabilitation                                                JJS
   within or outside the institution;
b. Safety protection (physically, mentally & socially);
c. easy access to information regarding the progress on his/her case investigation.
In a condition where Child Victim and /or Child Witness unable to appear & testify before the Article 58
court, the presiding judge can order the Child Victim & Child Witness to give his/her testimony : (3a) JJS
“Outside of the court through the mean of electronic recorder which implemented by
Community Supervisor in the presence of Police Investigator or Public Prosecutor and an
Advocate or other provider of legal aid.”
Regulation & Criminal Punishment concerning the
    Sexual Crime against Children
Regulation                                        Criminal Punishment
Art. 81 Law No. 35/2014 on Amendment of           -Imprisonment : minimum of 5 (five) years and maximum
Law No. 23/2002 on Child Protection (Sexual       of 15 (fifteen) years;
Intercourse with Minor)                           -Penalty : maximum of Rp. 5.000.000.000 (five billion
                                                  Rupiahs)
                                                  -1/3 (one third ) criminal punishment will be added to the
                                                  imprisonment time if the perpetrator is : Parent, Custodian,
                                                  babysitter, teacher, or educator;
Art. 82 Law No. 35/2014 on Amendment of           - Imprisonment : minimum of 5 (five) years and maximum
Law No. 23/2002 on Child Protection               of 15 (fifteen) years;
(Indecent Conduct to Minor)                       -Penalty : maximum of Rp. 5.000.000.000 (five billion
                                                  Rupiahs)
                                                  -1/3 (one third ) criminal punishment will be added to the
                                                  imprisonment time if the perpetrator is : Parent, Custodian,
                                                  babysitter, teacher, or educator;
Art. 14 (b) of the Presidential Instruction No.   To prosecute the perpetrator of sexual crime against
5/2014 on the National Movement on Anti-          children as severe as possible.
Sexual Crime against Children
Comparison of Diversion Process
       Republic of Philippines

                         Children in                 Diversion can only be
                        conflict with              implemented on criminal
                          the Law                 penalty under 6 (six) years
                                                       of imprisonment

 Punong Barangay         Law Enforcer            Court
                         & Prosecutor                                     Diversion (Sec.4 (i) Juvenile Justice &
                                                                          Welfare Act – Rep. Act 9344 Philippines)
Family Conferencing,                                                      : an alternative, child-appropriate
   Mediation &                                                            process of determining the responsibility
   Conciliation                                                           & treatment of a child in conflict with the
                                                                          law on the basis of his/her social,
                       Contract of Diversion :
                        Diversion Program
                                                                          cultural, economic, psychological or
                                                                          educational background without
                                                                          resorting to formal court proceedings.
Comparison of Diversion Process
   Kingdom of Thailand

                               Diversion can only be
     Children in             implemented on criminal
    Conflict with           penalty under 5 (five) years
      the Law                     imprisonment
                                                           Diversion accepted and reported
                                                           by the Prosecutor to the Court in
Dept. of Observation &                                       which the court shall issue a
      Protection                                           provisions & directives within 30
                                                                 (thirty) days after the
                                                               Prosecutor’s report being
                                                                        received
   Correctional &
                         Prosecutor
   Recovery Plan
                                                            Diversion not accepted in which
                                                           the Correctional & Recovery Plan
                                                            will be returned to the Dept. of
                                                            Observation & Protection to be
                                                             corrected or the legal process
                                                               shall proceed accordingly
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