scholarly journals Socio-Legal Study of Community Participation in Restorative Justice of Children in Conflict with the Law in Indonesia

2020 ◽  
Vol 10 ◽  
pp. 293-298
Author(s):  
Nur Rochaeti ◽  
◽  
Nurul Muthia
Keyword(s):  
Community Participation ◽  
Restorative Justice ◽  
Criminal Law ◽  
The State ◽  
Customary Law ◽  
Equal Treatment ◽  
Research Approach ◽  
Legal Cases ◽  
Legal Study ◽  
The Law

The state has the obligation and authority to protect children. This is regulated in Article 28 of the 1945 Constitution of the Republic of Indonesia, that everyone has the right to just recognition, guarantee, protection, and legal certainty as well as equal treatment before the law, namely that the State is obliged to protect every citizen regardless. The problem in this paper is how is the socio-legal study of restorative justice in the Juvenile Criminal Justice System in Indonesia. The method used in this research is a socio-legal research approach. This study found that the customary institution in Padang, West Sumatra is factually recognized in its existence in the customary criminal law of the Dua Puluah Customary Law. Moreover, the results showed that particularly in regulating the provisions of the material criminal law, in the Salapan Law (eight), and the Kanayatn Dayak community. implementing the restorative justice mechanism is resolved by deliberation and is family in nature in a Barukupm Adat forum, which involves all parties, both from functionaries, children of perpetrators and their families, victims and their families as well as witnesses who know the case, and pay attention to the rights of community members within the boundaries the agreed boundaries to be obeyed, based on the values and norms that exist in society. This study offers relevance in the context of non-legal settlement in cases of restorative justice in cases of children in conflict with the law in Indonesia. This study underscores expediency to provide greater space for customary entities to resolve children's cases non-legally and to increase community participation in the resolution of legal cases involving children.

scholarly journals General issues of the exercise of jurisdiction in the process of application of law enforcement measures at sea

2020 ◽  
pp. 106-118
Author(s):  
A. P. Glazova
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Research Process ◽  
The State ◽  
Customary Law ◽  
Research Approach ◽  
Legal Norms ◽  
Application Of Law ◽  
Territorial Jurisdiction ◽  
The Law

INTRODUCTION. Currently, states can apply a whole range of law enforcement measures at sea in order to prevent such unlawful phenomena as piracy, slave trade, drug trafficking, migrant smuggling, etc. However, the problem of the exercise of jurisdiction by states within various maritime areas is the main sticking point during the implementation of these measures. In an attempt to exercise the law enforcement function at sea, the state can't ignore the fact that its ability to create legal norms and ensure their effective implementation depends not only on its will as a sovereign, but also on the restrictions imposed by international law. Therefore, maintaining a balance between limiting the “territorialization” of maritime areas and the need to carry out a law enforcement function logically entails the need to determine the nature and content of the concept of “jurisdiction of the state” within different maritime areas, as well as to identify specific features of this legal category. The present article focuses on this and other related issues.MATERIALS AND METHODS. Historical and comparative analysis along with dogmatic research approach were used in the research process and the entire research is well grounded in focusing on the norms of international treaty law and customary law. In addition to that this research focuses on the norms of national law governing issues related to the application of law enforcement measurement at the sea. Apart from those given material and methodical inputs, the doctrinal works of the relevant jurists have been used in this research.RESEARCH RELULTS. The author comes to an alternative conclusion that territorial jurisdiction within the maritime territory is not absolute, which is due, apparently, the principle of freedom of the high seas which have a longer support by the international community. The definition of jurisdiction as extraterritorial is not self-sufficient, since in case of conflict of jurisdictions, additional legal criteria are required to resolve such a conflict. The classification of extraterritorial jurisdiction depending on the principles on which it is based also does not solve the problem, since some principles, such as protective or universal, in turn, require additional criteria in order to become a self-sufficient tool to overcome legal uncertainty. The author notes that the ability to exercise territorial jurisdiction within maritime areas, as a rule, determines the ability to exercise legislative and executive jurisdiction, which are also not absolute. The exercise of extraterritorial legislative or executive jurisdiction at sea is potentially permissible only on the basis of international law to solve a specific function, for example, law enforcement.DISCUSSION AND CONCLUSION. The main problem of the varieties of jurisdiction proposed by in- ternational legal science is that each of them only supplements each other, describing a possible choice, but not explaining why a particular choice should be preferred in case of conflict. It is obvious that current uncertainty has created some severe impacts upon the institution of law enforcement measures at sea as a result of the absence of standards for enforcement measures that could make a balance to the mechanism. Hence the law enforcer has to be cautious with a number of factors in deciding the implementation of law enforcement measures within the sea.

scholarly journals Relevansi Hukum Pidana Adat Dalam Pembaharuan Hukum Pidana di Indonesia

2015 ◽  
Vol 10 (2) ◽  
pp. 195
Author(s):  
Galuh Faradhilah Yuni Astuti
Keyword(s):  
Indigenous Peoples ◽  
Criminal Law ◽  
The State ◽  
Customary Law ◽  
Law Reform ◽  
Criminal Offense ◽  
Community Or ◽  
Key Issues ◽  
The Law ◽  
Principle Of Legality

Penelitian ini mengkaji dua persoalan pokok. Pertama, relevansi Hukum Pidana Adat sebagai kontribusi dalam pembaharuan Hukum Pidana di Indoneisa. Kedua, penerapan hukum dalam penyelesaian tindak pidana berdasarkan Hukum Pidana Adat di Suku Tengger. Hasil penelitian ini menunjukkan bahwa kontribusi Hukum Pidana Adat, berupa penyelesaian perkara di luar pengadilan atau mediasi penal yang dilakukan masyarakat atau masyarakat adat secara turun temurun, sudah relevan dengan pembaharuan Hukum Pidana di Indonesia. Praktik semacam ini selaras dengan nilai dan cita-cita Bangsa Indonesia, sesuai dengan sila keempat Pancasila sebagai dasar negara. Selain itu selaras dengan ide keseimbangan Hukum Pidana, teori sifat melawan hukum, pemenuhan kewajiban adat serta perluasan asas legalitas. Masyarakat Adat Suku Tengger menggunakan mediasi penal sebagai alternatif pertama dalam menyelesaikan perselisihan atau tindak  pidana yang terjadi pada daerah mereka, kemudian menyerahkan kepada pihak yang berwajib ketika mediasi penal tidak mencapai kesepakatan yang adil. <br /><br /><br /><em>This study examines two key issues. First, the relevance of Criminal Customary Law as a contribution to the renewal of Criminal Law at Indoneisa. Second, application of the law in the resolution of a criminal offense under the Criminal Customary Law in Tengger tribe. These results indicate that the contribution of Criminal Customary Law, in the form of settling disputes out of court or penal mediation conducted community or indigenous peoples from generation to generation, it is relevant to the Criminal Law reform in Indonesia. Such practices are aligned with the values and ideals of the Indonesian nation, according to the fourth principle of Pancasila as the state. Moreover tune with the idea of the balance of the Criminal Law, the theory of nature against the law, customary obligations fulfillment and expansion of the principle of legality. Indigenous Peoples Tengger tribe using penal mediation as the first alternative in resolving disputes or criminal acts that occur in their area, and then handed over to the authorities when the penal mediation does not reach a fair deal.</em>

scholarly journals RESTORATIVE JUSTICE: SUATU TINJAUAN TERHADAP PEMBAHARUAN HUKUM PIDANA DI INDONESIA

2013 ◽  
Vol 2 (2) ◽  
pp. 263
Author(s):  
Septa Candra
Keyword(s):  
Restorative Justice ◽  
Criminal Law ◽  
Descriptive Analysis ◽  
Criminal Code ◽  
Policy And Practice ◽  
Legal Cases ◽  
The Future ◽  
Justice Model ◽  
The Law ◽  
Criminal Matters

Restorative Justice adalah merupakan suatu bentuk model pendekatan baru dalam penyelesaian perkara pidana. Model pendekatan restorative justice ini sebenarnya telah digunakan dibeberapa negara dengan fokus pendekatannya kepada pelaku, korban dan masyarakat dalam proses penyelesaian kasus hukum yang terjadi diantara mereka. Walaupun model pendekatan ini masih banyak diperdebatkan dalam tataran teori oleh para ahli, namun dalam kenyataannya tetap tumbuh dan eksis serta mempengaruhi kebijakan dan praktek hukum di banyak negara. Permasalahan dalam penelitian ini yaitu bagaimana mekanisme penerapan pendekatan restorative justice dalam penyelesaian kasus hukum di Indonesia dan bagaimana konsep restorative justice dapat menjadi bagian dari pembaharuan hukum pidana di masa yang akan datang. Dengan menggunakan metode penelitian deskriptif analitis dan bersifat kualitatif, dapat disimpulkan bahwa Indonesia dengan angka kejahatan yang relatif tinggi, patut pula untuk dipertimbangkan model restorative justice ini menjadi bagian dari pendekatan dalam penyelesaian kasus-kasus hukum yang terjadi selama ini. Dalam perkembangannya prinsip restorative justice sudah diintrodusir melalui sejumlah ketentuan dalam RUU KUHP dan diversi terhadap anak, terutama untuk memberikan keseimbangan perhatian diantara stakeholders hukum pidana (pelaku, korban, masyarakat dan negara). Tentunya, model pendekatan ini diharapkan dapat menjadi bagian dari pembaharuan hukum pidana Indonesia di masa yang akan datang guna mencapai keadilan, kepastian dan kemanfaatan sebagai tujuan dari hukum itu sendiri.<p>Restorative justice is a new approach model to solve criminal matters. Restorative justice model is an approach that has actually been used in several countries with focus its approach to offenders, victims and the community in the process of settlement of legal cases that have happened among them. Even though the model has still been widely debated in the level of theory, but in fact, it still grows and exists, also influences policy and practice of the law in many countries. Based on the reasons, the focus of this study, namely: How is a mechanism of a restorative justice approach in solving legal cases in Indonesia? How is the concept of restorative justice that can be a part of the reform of criminal law in the future? The research applies descriptive analysis study and uses qualitative method. The result of the study shows that Indonesia as a law state with criminal figures relatively high ought also to be considered that the model of restorative justice may become an approach for solving legal cases. Restorative justice principles in development have already been introduced through a number of provisions in the Criminal Code Bill and diversion of children, especially to provide a balance among stakeholders in criminal law (perpetrators, victims, community and nation). Of course, this model is expected to be a part of the Indonesian criminal law reform in the future to bring justice, certainty and expediency as the purpose of the law itself.</p>

PERSINGGUNGAN KEWENANGAN MENGADILI PENYALAHGUNAAN DISKRESI ANTARA PENGADILAN TUN DAN PENGADILAN TIPIKOR / INTERCEPTION OF JUSTICE AUTHORITY OF DISCRETION ABUSE BETWEEN ADMINISTRATION COURT AND CORRUPTION COURTS

2018 ◽  
Vol 7 (2) ◽  
pp. 213
Author(s):  
Budi Suhariyanto
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Administrative Law ◽  
The State ◽  
Government Officials ◽  
Criminal Process ◽  
The Supreme Court ◽  
State Finance ◽  
The Law ◽  
To Receive

Diskresi sebagai wewenang bebas, keberadaannya rentan akan disalahgunakan. Penyalahgunaan diskresi yang berimplikasi merugikan keuangan negara dapat dituntutkan pertanggungjawabannya secara hukum administrasi maupun hukum pidana. Mengingat selama ini peraturan perundang-undangan tentang pemberantasan tindak pidana korupsi tidak merumuskan secara rinci yang dimaksudkan unsur menyalahgunakan kewenangan maka para hakim menggunakan konsep penyalahgunaan wewenang dari hukum administrasi. Problema muncul saat diberlakukannya Undang-Undang Nomor 30 Tahun 2014 dimana telah memicu persinggungan dalam hal kewenangan mengadili penyalahgunaan wewenang (termasuk diskresi) antara Pengadilan Tata Usaha Negara dengan Pengadilan Tindak Pidana Korupsi. Pada perkembangannya, persinggungan kewenangan mengadili tersebut ditegaskan oleh Peraturan Mahkamah Agung Nomor 4 Tahun 2015 bahwa PTUN berwenang menerima, memeriksa, dan memutus permohonan penilaian ada atau tidak ada penyalahgunaan wewenang (termasuk diskresi) dalam Keputusan dan/atau Tindakan Pejabat Pemerintahan sebelum adanya proses pidana. Sehubungan tidak dijelaskan tentang definisi dan batasan proses pidana yang dimaksud, maka timbul penafsiran yang berbeda. Perlu diadakan kesepakatan bersama dan dituangkan dalam regulasi tentang tapal batas persinggungan yang jelas tanpa meniadakan kewenangan pengujian penyalahgunaan wewenang diskresi pada Pengadilan TUN.Discretion as free authority is vulnerable to being misused. The abuse of discretion implicating the state finance may be prosecuted by both administrative and criminal law. In view of the fact that the law on corruption eradication does not formulate in detail the intended element of authority abuse, the judges use the concept of authority abuse from administrative law. Problems arise when the enactment of Law No. 30 of 2014 triggered an interception in terms of justice/ adjudicate authority on authority abuse (including discretion) between the Administrative Court and Corruption Court. In its development, the interception of justice authority is affirmed by Regulation of the Supreme Court Number 4 of 2015 that the Administrative Court has the authority to receive, examine and decide upon the appeal there is or there is no misuse of authority in the Decision and / or Action of Government Officials prior to the criminal process. That is, shortly before the commencement of the criminal process then that's when the authority of PTUN decides to judge the misuse of authority over the case. In this context, Perma No. 4 of 2015 has imposed restrictions on the authority of the TUN Court in prosecuting the abuse of discretionary authority.

Slavery and Ransom

2018 ◽  
Author(s):  
Will Smiley
Keyword(s):  
Eighteenth Century ◽  
Ottoman Empire ◽  
Young Men ◽  
Individual Characteristics ◽  
The State ◽  
Customary Law ◽  
Late Eighteenth Century ◽  
Late Eighteenth ◽  
The Law

This chapter explores captives’ fates after their capture, all along the Ottoman land and maritime frontiers, arguing that this was largely determined by individuals’ value for ransom or sale. First this was a matter of localized customary law; then it became a matter of inter-imperial rules, the “Law of Ransom.” The chapter discusses the nature of slavery in the Ottoman Empire, emphasizing the role of elite households, and the varying prices for captives based on their individual characteristics. It shows that the Ottoman state participated in ransoming, buying, exploiting, and sometimes selling both female and male captives. The state particularly needed young men to row on its galleys, but this changed in the late eighteenth century as the fleet moved from oars to sails. The chapter then turns to ransom, showing that a captive’s ability to be ransomed, and value, depended on a variety of individualized factors.

scholarly journals RIGHTS OWNERSHIP TO CERTIFIED LAND CONFRONTED WITH THE CUSTOMARY LAW IN THE LEGAL SYSTEM IN INDONESIA

2018 ◽  
Author(s):  
Saim Aksnudin
Keyword(s):  
National Development ◽  
Land Rights ◽  
The State ◽  
Customary Law ◽  
Legal Certainty ◽  
The Status ◽  
Need For Support ◽  
The Law ◽  
The Right ◽  
Ownership Of Land

In the national development the role of land for the fulfillment of various purposes will increase, either as a place to live or for business activities. In relation to that will also increase the need for support in the form of guarantee of legal certainty in the field of land. The result of the research is the conception of the state of Indonesia is a state law, which contains the meaning in the administration of government and the state based on the law, the protection of the law is a universal concept of the rule of law. The legal certainty on land rights as intended by the UUPA encompasses three things, namely the certainty of the object of land rights, certainty on the subject of land rights and certainty about the status of landrights. Legal conception of land title certificate is a proof that issued by authorized legal institution, containing juridical data and physical data which isused as evidence of ownership of land rights in order to provide assurance of legal certainty and certainty of rights to a plot of land owned or possessed by a person or legal entity. With the certificate of rights, it is expected that the juridical can guarantee the legal certainty and the right by the state for the holder of the right to the land. This country's guarantee is granted to the owner or the holder of the certificate may be granted because the land is already registered in the state land administration system.

scholarly journals Action in Law’s Empire: Judging in the Deliberative Mode

2016 ◽  
Vol 29 (2) ◽  
pp. 431-456
Author(s):  
Veronica Rodriguez-Blanco
Keyword(s):  
Classical Tradition ◽  
Practical Reason ◽  
Theoretical Perspective ◽  
The State ◽  
Legal Cases ◽  
The Law ◽  
Do So

Dworkin advances the view that judges decide legal cases according to constructive interpretation. The aim of constructive interpretation is to justify the coercion of the State. A trivial implication of this view is that officials and citizens will comply with the law because of the justification that has been advanced by judges in their exercise of constructive interpretation. Consequently, neither officials nor citizens comply with the law because they have been coerced or because they have been simply told to do so. But then, it seems that constructive interpretation cannot really provide any guidance since officials and citizens have been asked to accept the interpretation of the law that has been put forward by the judges since arguably, it is the best possible interpretation of what the law is in this particular case. However, why they ought to do so?I will argue that the mistake of the theory of constructive interpretation lies in a misleading and implausible conception of action that believes that action is raw behavioural data and that therefore we need to ‘impose meaning’, ‘value’ or ‘purpose’ on them. I will defend a more plausible conception of action along the classical tradition that understands practice as originating in agency and deliberation. The outcome is that constructive interpretation and its conception of ‘imposing meaning’ on practice is a theoretical perspective that neglects and misunderstands action and practical reason.

Enemy Combatants Versus Enemy Criminal Law: An Introduction to the European Debate Regarding Enemy Criminal Law and Its Relevance to the Anglo-American Discussion on the Legal Status of Unlawful Enemy Combatants

2008 ◽  
Vol 11 (4) ◽  
pp. 529-562 ◽  
Author(s):  
Carlos Góómez-Jara Dííez
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
Common Ground ◽  
Civil Liberties ◽  
The United States ◽  
The State ◽  
External Threats ◽  
General Terms ◽  
The Law ◽  
Enemy Combatants

At the beginning of the twenty-first century two legal concepts linking citizen/enemy status with criminal law have provoked heated discussion both in Europe and in the United States. The American concept, i.e., Enemy Combatants, has been basically developed by the U.S. Supreme Court and more recently by the Bush administration. The European term, Feindstrafrecht/Enemy Criminal Law, has been fundamentally coined and explained by leading German academic Professor Güünther Jakobs. Though born and raised by different parents, the two concepts have numerous aspects in common, or at least this will be argued throughout the paper. The most important common ground is that both concepts, with similar terminology, try to address the problem of what to do with individuals who are viewed as sources of extreme dangerousness. Put differently, they both tackle the question of whether citizenship-in a broad sense-concedes certain rights but imposes a fundamental duty: to have a minimum of law-abiding behavior. If the duty is not fulfilled, then the rights are not acknowledged and the individual is treated as an enemy, not as a citizen. The underlying reasoning oozes social contract theory. This is not by chance, as great philosophers (Rousseau, Fichte, Hobbes, Kant) have employed similar arguments that are briefly sketched in the essay. There are also references to the legal theory behind the scenes predicating that in order for legal constructions to exist (rights, the State), they need to be followed by most people. Hence such a duty to comply, in general terms, with the law is imposed upon all persons. If not, law would be just daydreaming. Strong and consistent as all these arguments sound, the basic problem with this type of reasoning is that it is hard for the legal system to follow without entering into self-contradiction. In this light, criticism will be brought by one of the most prominent social theories of the time, i.e., systems theory, arguing that law-abiding behavior is a precondition for legal institutions to exist, yes, but it cannot be secured by law itself. It is a precondition that has to be presupposed by the legal system. Moreover, using this kind of necessity rule, i.e., the State and the Law need to secure the preconditions of their own existence (self-preservation), entails a diabolic logic as it may lead to the destruction of the system itself. To this extent, self-preservation against external threats (terrorist attacks) and internal threats (curtailment of civil liberties) seems equally important. The essay finishes with some proposals for resolving this delicate matter, trying to reflect a keen sense of balance and forward-looking thinking.

A Right to Assist? Assisted Dying and the Interim Policy

2010 ◽  
Vol 74 (1) ◽  
pp. 31-52
Author(s):  
Ben Livings
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Assisted Suicide ◽  
The State ◽  
European Convention ◽  
Life And Death ◽  
The Law ◽  
New Guidelines ◽  
Potential Challenge

There are few more controversial, or emotive, debates within the criminal law than that which surrounds the topic of euthanasia, questioning as it does the fundamental role of the law in regulating the most intimate aspects of a person's life and death. The acknowledgement by the courts (notably in the cases of Diane Pretty and Debbie Purdy) that this area engages a person's rights under the European Convention on Human Rights exacerbates the urgency of the problem, and further nuances the debate as to the extent to which the autonomy of the person is impinged upon, and whether this is a function legitimately exercised by the state. In the wake of the announcement of new guidelines for prosecution in cases of assisted suicide, this article examines the state of the law regarding assisted suicide in England and Wales, and the fragile position of euthanasia within the criminal law. It will look to the various, and often rights-based, challenges to the law, and in particular a potential challenge through Article 7 of the European Convention on Human Rights.

Sign in / Sign up

Export Citation Format

Share Document