CC BY
22
RESTORATIVE JUSTICE APPLICATION ON TRAFFIC ACCIDENT CASES AT THE MAKASSAR CITY POLICE RESORT, INDONESIA
RUSLAN RENGGONG1, MUSTAWA NUR2, BASO MADIONG3, DYAHAULIAH RACHMA4, ASHAR
FAHRI5HASNUR ALFITRA6
1. Department of Criminal Law, Faculty of Law, BosowaUniversity, Makassar, Indonesia,
ruslanrenggong@gmail. com 2. Department of Constitutional Law, Faculty of Law, Bosowa University, Makassar, Indonesia,
[email protected] 3. Department of Community and Development Law, Faculty of Law, Bosowa University, Makassar,
Indonesia, [email protected]
4. Department of Civil Law, Faculty of Law, Pattimura University, Ambon, Indonesia,
[email protected] 5 Alumni of the Law Study Program, postgraduates of Bosowa University, Makassar, Indonesia 5. Postgraduate Student, Bosowa University, Makassar, Indonesia, [email protected]
"Corresponding author: Ruslan Renggong, [email protected]
Abstract
In criminal justice system, restorative justice is a step in order to achieve justice, peace, and expediency in the process of law enforcement, which includes resolving traffic accidents. This study tried examining and analyzing the application of restorative justice in handling the cases of traffic accidents at the Makassar Police Resort using a qualitative approach by conducting in-depth interviews, observations, and documentation. The findings demonstrate that restorative justice cannot be applied in all investigations since some parties prefer to have their cases elevated to the court. However, the Traffic Unit of Makassar Police Resort stated that most accident cases were resolved at the investigational stage with restorative justice. The absence of massive socialization on restorative justice, which leaves many people unaware of its nature and goals, is a hindrance to its implementation. Moreover, since it has not been governed by law, the legal framework for restorative justice in Indonesia is still biased among law enforcers. Therefore, this study suggests a revision in the Criminal Procedure Code that will include the provisions on restorative justice in a straightforward and detailed manner.
Keywords: Restorative Justice, Criminal Justice System, Traffic Accident
INTRODUCTION
Restorative justice is a cutting-edge approach in the criminal justice system which changes the paradigm of "handling criminal cases is complex" to become simpler, faster, and just (Azman and Mohammad, 2012; Ardyan, 201; Daly, 2016). In the resolution of criminal cases, this approach is focused on the direct participation of perpetrators, victims, and community by making the interests of the victims the main concerns (Roche, 2006; Roach, 2000; van Wormer, 2006; Tows and Katounas, 2004; Saleh and Gunawan, 2021). The United Nations (UN), through the set basic principles, views that restorative justice can be used in a rational criminal justice system (Syaufi et al., 2021).
Restorative justice-based law enforcement in Indonesia is different from other countries. The primary goal of retributive justice is retaliation, which then places the state in a dominant position and makes the offender the focus while excluding the victim and the community (Tysta et al., 2020; Suparman, 2010). All criminal matters are handled through a court system which is supported by criminal legislation, that always ended in jail.
Retributive justice is considered not capable to suppress crime rates and realize substantive justice. Thus, it gave rise to demands in using a restorative-based law enforcement
model, namely, placing perpetrators, victims, and the community as law enforcement relations who will solve problems through mediation which benefits all parties (Choi et al., 2011; Rea, 2012; Halsey et al., 2015; Hoyle, 2008). The restorative justice approach provides a space for perpetrators where they can apologize and admit their guilt to the victim and the community, and then the victim has the right to material and psychological losses due to the crime experienced (Armstrong, 2012; Umbreit and Vos, 2000; van Ness et al., 2001). This approach can benefit both victims and perpetrators and may even reduce recidivism rates among young offenders and future delinquents (Braithwaite, 2002; Sherman et al., 2015; Wong et al., 2016; Wilson et al., 2017).
Article 5 of Law No. 11 of 2012 which concerns the juvenile justice system provides that the juvenile justice system shall prioritize a restorative justice approach, serving as a marker for the shift in the direction of law enforcement in Indonesia (Satria, 2018). The application of restorative justice can be launched at the level of investigation, prosecution, and court trial through seeking diversion so that peace can be made between victims and child offenders. The Head of the Indonesian National Police has also taken a step forward by making Circular No. SE/8/VII/2018 which concerns the application of restorative justice on the settlement of criminal cases, strengthened by the Regulation of the Chief of the Indonesian National Police Number 8 of 2021.
These two statutes are critical for the police investigators since they allow case investigations to end when there is harmony between the victim and the offender. However, the application of restorative justice as regulated in the Circular Letter of The Head of the Indonesian National Police and the Regulation of the Chief of the Indonesian National Police is applied only in small criminal cases and in cases which have not not been assigned to the prosecutor's office. Thus, this regulation has not yet covered other criminal cases which did not meet these two criteria.
The Makassar City Police Resort is a law enforcement institution which is under the police policies at the central level. Thus, their special unit which handles traffic accident cases must seek in resolving them through a restorative justice approach. As a metropolitan city and the capital city of South Sulawesi Province, Makassar faces many problems in relation to traffic accidents which result in serious injuries, deaths, and property damage. Makassar City Police Resort (2022) reports that 1218 traffic incidents occurred between June 2021 and May 2022 in Makassar. This situation shows that there are a lot of occurrences of traffic accidents, which necessitates appropriate handling by the relevant authorities.
The results of the research conducted by Suzuki and Yuan (2021) provide that restorative justice essentially humanizes and creates a space for interaction between perpetrators and victims of criminal acts. Furthermore, Weitekamp and Parmentier (2016) state that restorative justice is a means to realize justice and recovery because of criminal acts. Ramadan et al. (2022) previously conducted a study on the effectiveness of the function of the police in law enforcement of traffic accidents in South Sulawesi. However, this research only focuses on the application of restorative justice in handling cases of traffic accidents which cause fatalities, injuries, or damage to goods in the jurisdiction of the Makassar City Police Resort.
LITERATURE REVIEW
The restorative justice approach began in Canada in the 1970s and was called as victim-offender mediation in child criminal cases. This was then followed by other countries, such as the United States, Great Britain, Australia, New Zealand, and several countries in Europe. The main goal of this movement is creating a resolution of conflicts resulting from criminal acts without involving the courts. Perpetrators, victims, and related community groups discuss in improving the effects of the crime which occurred and return it to its original condition (Suzuki and Wood, 2018; Pangandian and Eduardo, 2019; Aryana, 2020; Bartol and Bartol, 2004; Braithwaite, 1999; Garcia, 2019).
The restorative justice approach in the Indonesian criminal justice system began to be called as a diversion after the establishment of Law No. 12 of 2011 in relation to the behavior of minors in
conflict with the law. However, the changes brought by the law have not been significant since it only applies to crimes committed by juveniles.
In general, restorative justice is defined as a legal system which aims in restoring the welfare of victims, perpetrators, and communities affected by crime, and preventing further violations or criminal acts (Zulfa, 2020; Marian, 2007; Marsh and Maruna, 2008). Tony F. Marshall further stated that restorative justice is a process wherein parties with interests in certain violations meet in order to solve problems for the sake of the future (Marian, 2007; Suzuki and Wood, 2018; Paul and Borton, 2013).
Restorative justice includes six principles, namely, (a) prioritizing the support and healing of victims; (b) holding offenders accountable for their actions; (c) facilitating a dialogue between the victim and the perpetrator in order to reach an agreement; (d) attempting to properly place the losses incurred; (e) ensuring that offenders are aware of preventing future crimes; (f) integrating both victims and perpetrators with the help of the community. To avoid further legal proceedings, the perpetrators of criminal crimes prioritize the rights of victims in a compensation mechanism. Achieving this kind of peace will mitigate the strain on law enforcement since they will no longer have to invest time and resources in resolving cases, and it will also immediately resolve issues in the community.
Enforcement of Regulation of the Chief of the Indonesian National Police No. 8 of 2021 which concerns the Handling of Crimes opens opportunities for the criminal acts which are committed by adults to be resolved with a restorative justice approach. For it to be put into effect, several requirements must be met, including the following: (a) it does not cause public unrest and community rejection; (b) it does not result in social conflict; (c) there is a statement from all parties involved not to object, and will have to waive their right to sue before the law; (d) the crime level of the perpetrator is relatively light; (e) the perpetrator is not a recidivist; (f) the case is still at the investigation level or has been at the investigation level but was not submitted to the prosecutor's office. Meanwhile, the formal requirements are as follows: (a) a letter of request for reconciliation from both of the parties (the reporting party and the reported party); (b) a statement of reconciliation and settlement of disputes between the litigants (the reporting party, and/or the family of the reporting party, the reported party and/or the family of the reported party and representatives of community leaders) and known by the investigators. Although the scope has been widened, this regulation limits still the application of restorative justice to relatively minor crimes, such as theft, embezzlement, fraud, and traffic accidents, and not to serious crimes, such as murder, corruption, terrorism, and non-recidivist offenders.
Traffic Accidents and Legal Sanctions
One of the acts which was categorized as a criminal offense is traffic accident. As per Article 93 paragraph (1) Government Regulation of the Republic of Indonesia No. 43 of 1993, a traffic accident is an event which takes place on the road, that is generally unintentional, involving a motor vehicle with or without other road users which results in minor or serious injury, death, or property loss. Furthermore, Kansil and Kansil (1995) explain that traffic accidents are unexpected and unintentional events that involve vehicles or other road users which cause casualties and/or property loss.
Regulations regarding traffic accidents are regulated in Article 310 of the Law of the Republic of Indonesia No. 22 of 2009 concerning Road Traffic and Transportation. The sanctions for traffic offenders include the following: (a) negligence in driving a motor vehicle which results in a traffic accident but does not cause casualties, either property or illness or injury, is punishable with imprisonment for a maximum of 6 months and/or a fine of a maximum Rp. 1,000,000; (b) negligence in driving a motor vehicle which results in minor injury and damage to the vehicle and/or goods is punishable by a maximum imprisonment of 1 year and/or a maximum fine of Rp. 2,000,000; (c) negligence in driving a motor vehicle which results in serious injury is punishable by a maximum imprisonment of 5 years and/or a maximum fine of Rp. 10,000,000; (d) negligence in
driving a motor vehicle which results in death is punishable by a maximum imprisonment of 6 years and/or a maximum fine of Rp. 12,000,000.
Based on the conditions provided in the Regulation of the Chief of the Indonesian National Police No. 8 of 2021, a violation of Article 310 of Law no. 22 of 2009 can be resolved in using a restorative justice approach, except in cases where the perpetrator is a recidivist or if the case has been submitted to the prosecutor's office. However, according to the Regulation of the Attorney General of the Republic of Indonesia No. 15 of 2020 concerning the Termination of Prosecution Based on Restorative Justice, a case can be stopped by the prosecutor by using the restorative justice approach.
METHODS
Research design
A qualitative research with a case study approach was used in describing the implementation of restorative justice in the handling of traffic accident cases at the Makassar City Police Resort. This research was conducted from March 1 to July 29, 2022.
Study Area
This research was conducted at the Makassar City Police Resort, especially in their traffic units, which are legally authorized in investigating traffic accident cases.
Data Collection
The data collected was divided into two categories, namely, (1) primary data related to the application of restorative justice in handling traffic accident cases at Makassar City Police Resort; and (2) secondary data obtained through various supporting documents in relation to the application of restorative justice in handling traffic accident cases.
In-depth Interviews
The in-depth interviews were conducted with the key informants, main informants, and supporting informants. This step was focused on the aspects in relation to the application of restorative justice in the handling of traffic accident cases and the obstacles in its application. Documents
The documents collected were the (1) data on the number of traffic accidents handled by Makassar City Police Resort from June 2021 to May 2022, and (2) data on traffic accident cases which were resolved through a restorative justice approach. Research Instruments
The main instrument of this research is the in-depth interviews, both structured and unstructured, with various informants in obtaining in-depth and comprehensive information about restorative justice.
Research Informants
The informants in this study were divided into three, namely, key informants, main informants, and supporting informants, with a total of 20 respondents. The key informants were six investigators who have extensive information about the application of restorative justice, the main informants were six traffic offenders and six victims of traffic accidents, and the supporting informants were two community leaders who know the benefits of the application of restorative justice in social life.
Data Analysis
The collected data were then grouped, analyzed, coded, and presented in a tabular form.
RESULTS
TRAFFIC ACCIDENTS AND THE LEGAL PROCESS
This study found a total of 1298 traffic accidents cases within a year under the jurisdiction of Makassar City Police Resort, whether committed by drivers of two-wheeled, four-wheeled, and six-wheeled vehicles or more (Table 1). Two-wheeled vehicles were recorded to have the highest number of accidents (663 cases), followed by four-wheeled vehicles (499 cases) and six or more-wheeled vehicles or more (116 cases).
Table 1. Data on Traffic Accident Cases at Makassar City Police Resort
No Month Numbe r of acciden ts Percent age Vehicle
Two-wheel ed Four whe eled Six or more -wheele d
1 June 91 7.01% 48 34 9
2 July 89 6.86% 42 36 11
3 August 111 8.55%% 54 48 9
4 September 90 6.93% 45 35 10
5 October 103 7.94% 51 44 8
6 November 114 8.78% 59 48 7
7 December 119 9.17% 58 49 12
8 January 120 9.24% 72 41 7
9 February 98 7.55% 47 39 12
10 March 110 8.47% 63 40 7
11 April 122 9.40% 75 39 8
12 May 131 10.09% 69 46 16
Total 1298 100% 683 499 116
Source: Traffic Unit of Makassar City Police Resort, 2022
According to AR, the informant who is an investigator of the traffic unit, that:
"The number of traffic accidents in Makassar is high, in fact the highest among all cities and regencies in the province of South Sulawesi. These traffic accidents are dominated by two-wheeled drivers. The reason is that they did not obey traffic rules, for example, driving on a crowded road and ignoring traffic signs. Although various preventive and even repressive measures have been applied, traffic accidents still occur."
The same thing was also conveyed by BO, a resident of Makassar, that:
"In addition to the imbalance of road capacities with the number of vehicles, especially two-wheeled vehicles, the traffic discipline of residents is also still low, as evidenced by the frequent violations of traffic rules that lead to traffic accidents, resulting in property losses due to vehicle damage, injuries, even death."
The opinions of the two informants are in line with the results of this study, where violations of traffic signs are still common. This is due to the low knowledge and awareness of the public in
relation to traffic laws. For example, motorcyclists who are in the wrong lane do not obey traffic lights and go against the flow of vehicles, which can be fatal for the violators (Figure 1).
A. B.
Figure 1. A. Congestion due to four-wheeled vehicles on Petta Rani Rd., Makassar, B. Congestion due to imbalance of road volume and number of vehicles on Veteran Rd., Makassar (Traffic Unit of Makassar City Police Resort, 2022)
Case resolution through restorative justice is a new thing for investigators, especially the traffic units. Prior to the issuance of Regulation of the Chief of the Indonesian National Police No. 8 of 2021, investigators handled traffic accident cases by transferring them to the prosecutor's office; this would then be forwarded to the court. However, if an agreement does not materialize between all parties with restorative justice, the investigator is obliged in carrying out the process to be forwarded to the prosecutor's office.
In the application of restorative justice, the investigator serves as a mediator between the victim and the offender in order to arrive with an agreement. If both parties agree, then the agreement is written down in the peace deed, which contains the willingness of the perpetrator in apologizing and providing compensation in the agreed-upon sum. The peace deed will be the basis for investigators in proposing a letter for termination of the investigation and continue the mechanism for handling cases until the issuance of the termination.
Table 2 shows data on traffic accident cases which were successfully resolved using a restorative justice approach. Of the 1298 cases, 847 cases were resolved by the restorative justice approach at the preliminary investigation level, and 357 cases were resolved at the full investigation level. The remaining 89 cases were terminated due lack of evidence, and 5 other cases were transferred to the office of prosecutors.
Table 2. Traffic Accident Cases in June 2021-May 2022
No Month Cases Handled with Restorative Justice Information
Prelimi nary Investig ation Full Investi gation Total Insuffi cient Eviden ce P21 Total
1 June 91 55 29 84 5 2 7
2 July 89 58 26 84 4 1 5
3 August 111 78 21 99 12 - 12
4 September 90 60 24 84 6 - 6
5 October 103 69 28 97 5 1 6
6 November 114 74 32 106 8 - 8
7 December 119 74 34 108 11 - 11
8 January 120 80 31 111 8 1 9
9 February 98 64 24 88 10 - 10
10 March 110 70 36 106 4 - 4
11 April 122 80 33 113 9 - 9
12 May 131 85 39 124 7 - 7
Jumlah 1298 847 357 1204 89 5 94
Source: Traffic Unit of Makassar City Police Resort, 2022
Figure 2. Examples of traffic accidents in Makassar. A. A collision between a city car and a truck due to negligence on a narrow road; B. Evacuation of motorcycle drivers who were victims of traffic accidents (Traffic Unit of Makassar City Police Resort, 2022)
The application of restorative justice which was carried out by the traffic unit, reaching 1204 cases (92.76%), showed a positive light on the law enforcement process since it saved costs, energy, and number of detainees in its settlement. A traffic violator, LB, who caused the victim to suffer injuries and damage to his vehicle, stated:
"When this case was handled by the traffic unit, I requested that this case be resolved amicably, and I am willing to apologize and compensate for all the losses suffered by the victim. I was advised to make a written request. After that, we met with the victim, and we agreed to make peace. Mediated by the investigators, I apologized to the victim and his family and am willing to compensate the victim for Rp. 7,000,000. This agreement was stated in the peace agreement, which I signed with the victim and witnessed by the investigator."
The same testimony was given by BM, who is the victim, stating:
"My family and I agreed that this case is handled in a restorative justice approach, to speed up the handling, besides that the perpetrator apologized and was willing to compensate me."
Furthermore, WS as a community leader explained:
"This is a good thing in the justice system because it has great benefits for the victims, perpetrators, police, and the community. The application of restorative justice will speed up the settlement of cases so that not all cases must proceed to court. As a result, it will reduce the density of residents in detention centers and the accumulation of cases in court. Also, the nature of the restorative justice approach that puts peace first is in line with local wisdom that upholds mutual forgiveness."
Table 3 provides an overview of the opinions of 20 informants in relation to the application of restorative justice in traffic accidents cases. A total of 8 informants agreed on the application of restorative justice in the handling of cases traffic accidents, as it will provide a sense of justice and peace to all parties involved with faster resolution. Furthermore, the community leaders support this application in order to realize justice and reduce the number of prisoners in detention, as restorative justice follows the values of local wisdom adopted by the people of Makassar.
Meanwhile, the investigators expressed that the restorative justice approach should be further regulated in the law.
Table 3. Summary of the opinions from informants on the application of restorative justice in cases of traffic accidents in Makassar
No Name Status Opinion
1 AR, BM, RO, WH, JN, AS Investigators Realizing justice and harmony for both parties, accelerating the process, and the legal basis for restorative justice needs to be further regulated in the Law
2 LB, SM, NR, WD, FM, HH Traffic Offenders Giving the perpetrator an opportunity to apologize, realizing justice and harmony in society
3 ME, SP, JF, HM, AM, SG Victims Giving justice, the perpetrator apologizes and compensates, fast and reliable case resolution
4 WS, BO Community Leaders Realizing justice and harmony, provide faster certainty, in accordance with local wisdom, reducing prisoners
Barriers to the Implementation of Restorative Justice
The requirements for applying restorative justice to all criminal acts have been regulated in the Regulation of the Chief of the Indonesian National Police No. 8 of 2021, including the crime committed is not a serious crime, both parties agree to make peace, and the perpetrator is not a recidivist. However, the application of restorative justice does not escape obstacles. According to an investigator at the Traffic Unit of Makassar City Police Resort (IH):
"Although the restorative justice approach has begun to be implemented for cases of traffic accidents, there are still some obstacles faced by investigators in its implementation. These obstacles include the legal basis for its application, which is still partial among law enforcers because they are still based on their internal rules. If the application of restorative justice has been regulated in criminal procedure law, then all law enforcement officers are bound to implement it. Moreover, the restorative justice approach has not been massively socialized, so there are still many community members who do not understand clearly about restorative justice."
A similar statement was also conveyed by WS, a community leader in Makassar:
"The obstacles faced in the application of restorative justice are influenced by various factors, including the absence of a definite binding rule for the police because the rules which become the guide are internal. In addition, many investigators do not properly understand the philosophy of the restorative justice approach in the criminal justice system. They are still influenced by the understanding of restorative justice, which views all violations of the law, including traffic violations, must be prosecuted."
DISCUSSION
Restorative justice incorporates the principle of balance in the criminal justice system since a case can be handled effectively and efficiently, which ultimately benefiting the victim, the perpetrator, the investigator, and the community (Weitekamp and Parmentier, 2016; Radekop, 2008; Maruna, 2014; Suzuki and Yuan, 2021; Saleh and Gunawan, 2021). By using a restorative justice approach, the victim will receive compensation and an apology from the perpetrator, and the perpetrator will not be prosecuted. The surrounding community will also get a peaceful
environment as there is no further conflict between the perpetrators and the victims. The police also will gain benefits as they will be able to save time, energy, and costs in the termination of the investigation before elevating it to the court. Thus, the restorative approach can realize justice and harmony in society, and the long-standing assumption that every criminal act must proceed to court can be eliminated (Weitekmp and Parmentier, 2016).
Makassar City is a metropolitan city which is also the capital of South Sulawesi Province. The growing number of vehicles in Makassar does not correspond to the provided road facilities. As a result, there are frequent traffic jams, which are prone to traffic accidents. Vehicles which pass through the streets of Makassar are dominated by two-wheeled vehicles, followed by four-wheeled vehicles. In 2021, the number of motor vehicles in Makassar reached 1.7 million units (Fajar.com, 21 March 2022).
In carrying out investigations of traffic accidents in the jurisdiction of the Makassar City Police Resort, the investigators of the traffic unit used their authority in exercising discretion by not continuing the examination process to the prosecution stage. The investigators initiated a meeting between the alleged traffic offenders and the victims and/or their families in discussing the resolution of the problem peacefully.
This study found that only a small number of cases were transferred to the prosecutor's office (Table 2). It shows that the restorative justice approach has been implemented by the Makassar City Police Resort traffic unit and has received a positive response from the victims and perpetrators, reflected by their willingness in maintaining peace in order to avoid having their cases pursued further.
The willingness of the victims and perpetrators in making peace cannot be separated from the influence of local wisdom values which are still strong in the people of Makassar. This local wisdom is cosmic, magical, and religious-based, which has long been recognized and implemented in their everyday life (Syaufi, 2021; Chirayath et al., 2005; Meron, 2005; Cyer, 2006; Fletcher, 2007). The values of local wisdom include Pangadereng, which prioritizes peace and teaches that forgiveness is a noble act, and anyone who has hurt or harmed others must apologize for their mistakes (Rasdiyana, 2015; Alimuddin, 2015; Pangandian and Eduardo, 2019). In some instances, the victim did not even demand compensation from the perpetrator after an apology since he considered it as a coincidence, especially since the perpetrator was a poor person.
Currently, the internal legal bhttps://sg.docworkspace.com/l/sIFTQl-lTi-SooQY?sa=00&st=0td detainees in Indonesia reached 228,225, when only the capacity of prisons and detention centers was 132,645 (Syaufi, 2021). Severe overcrowding was also experienced by the Class 1 State Detention Center of Makassar, which has a capacity of 1000 detainees but accommodated 2058 detainees (Makassar Detention Center, 2021).
CONCLUSION
Most of the cases handled by the Traffic Unit of Makassar City Police Resort were handled with a restorative justice approach and succeeded the ensuring peace between the perpetrator and the victim without elevating the case to the prosecutor's office. The lack of socialization in the community and no further regulations in the law are the obstacles faced in its application. Therefore, it is necessary to improve the use of restorative justice by incorporating it into criminal procedural law so that investigators will have a solid legal basis, and its application will be mandatory if the predetermined conditions are met.
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