By:
Attorney RIKHARDUS IKUN, S.H., M.H., C.MSP., C.NSP., C.LFS., C.CPr.
Director of the JAMES RICHARD AND PARTNERS Law Firm.
CHAIRMAN OF THE BALI CHAPTER OF PERADI UTAMA.
I. Definition of Diversion
Diversion is the transfer of a child’s case from the criminal justice system to a process outside the criminal justice system. Its purpose is not merely to spare the child from punishment, but to prioritize the child’s best interests, the victim’s recovery, and a restorative resolution of the case.
II. Legal Basis
Diversion is, in principle, regulated by Law No. 11 of 2012 on the Juvenile Criminal Justice System (SPPA Law). Diversion must be pursued during the investigation, prosecution, and court proceedings if it meets the requirements specified by law.
One important requirement is that the case involves a potential sentence of less than 7 years and is not a repeat offense.
III. Objectives of Diversion
Diversion aims to:
1. achieve reconciliation between the victim and the child;
2. resolve the child’s case outside the judicial process;
3. prevent the child from being deprived of liberty;
4. encourage the child to take responsibility for their actions; and
5. restore the well-being of both the victim and the child through a restorative justice approach.
IV. Legal Opinion
In our legal opinion, diversion is a crucial tool in handling criminal cases involving children. Children in conflict with the law cannot be treated the same as adult offenders because the juvenile justice system emphasizes the protection, guidance, education, and reintegration of children into society.
However, diversion is not automatically granted to every child. Its application must meet legal requirements and take into account the type of criminal offense, the potential criminal penalty, the interests of the victim, and the best interests of the child.
If diversion is successful, the terms of the agreement must be formalized in a diversion agreement and approved in accordance with applicable procedures. If diversion is unsuccessful, the case may proceed to juvenile court proceedings in accordance with legal provisions.
Conclusion:
Diversion is a mechanism for resolving juvenile cases that prioritizes restorative justice, child protection, victim recovery, and the child’s accountability—not merely the child’s exemption from legal liability.
