Resolving Traffic Accident Cases Factors inhibiting the application of

Oriented to Restorative Justice restorative justice: The perpetrator's

family refuses compensation because of
By: Aprison Haga the enormous costs, during the negotiation
aprison haga@gmail.com _ of the parties, the perpetrator's family
refuses compensation for damage to the
ABSTRACT
vehicle and health costs, the perpetrator's
family accepts only vehicle compensation
Aprison Haga. Restorative justice-
sanctions, involve third parties in
oriented traffic accident resolution in
mediation to rectify and provide solutions
terms of the Indonesian National Police
so that the perpetrators can compensate
Circular Number 8 of 2018 concerning
for the victim's losses. In this case the
the Implementation of Restorative Justice
authors suggest that the application of
in the Settlement of Criminal Cases (Case
restorative justice in traffic accidents can
Study in the Legal Area of the Sabu-
restore balance and prioritize the interests
Raijua Resort Police). Supervised by:
of victims who have been harmed by the
Nikolas Manu and Deddy R. Ch.
perpetrators as well as in tackling the
Manafe.
crime of traffic accidents in the
The application of restorative
jurisdiction of the Sabu-Raijua Resort
justice in traffic accident cases at the West
Police, for the people of Sabu-Raijua,
Sabu Resort has been implemented but
especially motorists who use two wheels
encountered obstacles. Cases that
and have old enough and meet the
successfully used the restorative justice
requirements of traffic rules to avoid
approach for the period January 1 2018 to
traffic accidents between road users within
December 31 2018 recorded 18 cases that
the jurisdiction of the Sabu-Raijua Police.
were successfully mediated. The
formulation of the research problems are:
Keywords: Application, traffic accident
(1) How is the application of restorative
cases, Restorative justice , factors
just inhibitor.
ice in the case of traffic accidents that
occurred in the jurisdiction of the Sabu-
Raijua Police? (2) What are the inhibiting
factors for the application of restorative
justice in traffic accident cases within the
jurisdiction of the Sabu-Raijua Police.
This research is empirical,
meaning that in analyzing the problem it is
done by combining legal materials
obtained in the field, the sources and legal
materials used are primary, secondary,
tertiary legal materials and the data is
analyzed descriptively qualitatively. The
results of the study show: (1) Settlement of
traffic cases by applying restorative justice
and bringing together perpetrators and
victims and families in mediation and the
presence of the West Sabu Police. (2)
Introduction will be correlated with the achievements of

Restorative justice is a form of a the world of justice. As time goes on, there

new approach model in the settlement of is an increasing number of cases in all

criminal cases, this restorative justice forms and variations that go to court, so

approach has actually been used in that the consequences in examining and

several countries with a focus on deciding cases are according to the

approaches to perpetrators, victims and principle of "simple, fast and low-cost

communities in the process of resolving trials" without having to sacrifice the

legal cases that occur between them. achievement of the objectives of the

Restorative justice is a new legal judiciary, namely legal certainty,

philosophy which is a combination of expediency. and justice. Do all criminal

existing sentencing theories, peace cases have to be filed and resolved before

between victims and perpetrators or the court, or are there certain cases that

parties to the dispute and the intended allow it to be resolved through a penal

peace aims to neutralize the circumstances mediation pattern. In polarization and

that give rise to disputes or disputes so penal mediation mechanisms, as long as

that the victims and perpetrators return to this is really what the parties ( the

what they were before it happened. This perpetrator and the victim) really want

dispute is called peace. together , and to achieve a wider interest,

The existence of settlement of cases namely the maintenance of social

outside the court through restorative harmony.

justice or penal mediation is a new The legal basis or legal umbrella

dimension studied from the theoretical and for the National Police in the settlement of

practical aspects of the study of the criminal cases outside the court which

practical dimension, so penal mediation reflects the application of the principles of

restorative justice and can be used as a 3) Article 15 paragraph (2) Law

reference in the application of the Number 42 of 1999 concerning

principles of restorative justice to criminal Fiduciary Guarantees that

cases are as follows 1: guarantees for Fiduciary

1) Article 76 paragraph (1) of the Guarantee certificates have the

Criminal Code that except in same executive power as court

cases where the judge's decision decisions that have obtained

is still possible to be repeated, a permanent legal force;

person may not be prosecuted 4) Article 51 paragraph (7) of Law

twice because an Indonesian Number 21 of 2001 concerning

judge has tried against him with Special Autonomy for the

a final decision; Province of Papua that in order

2) Article 7 paragraph (1) of Law to release the perpetrator, a

Number 11 of 2012 concerning statement of approval is required

the Juvenile Criminal Justice to be carried out from the Head

System at the level of of the District Court in his

investigation, prosecution and territory obtained through the

examination of children in Head of the District Attorney

district courts, diversion must be concerned with the place where

sought; the crime occurred;

The main advantage of a criminal

case settlement outside the court with a

1
Legal certainty, explanation of Article 76 of the
Criminal Code, Article 7 paragraph (1) of Law Restorative Justice orientation is that
Number 11 of 2012 Juvenile Criminal Justice
System, Article 15 paragraph (2) of Law Number
42 of 1999 concerning Fiduciary Security, Article
decisions made by the parties themselves (
51 paragraph (7) of the Law Number 21 of 2001
concerning the Special Autonomy of the Province win win solution ) reflect more of a sense
of Papua .
of justice. Whereas the implementation of out if the following conditions are

the authority to investigate and investigate met:

criminal acts by Indonesian National a. Does not conflict with a rule of

Police investigators who apply the law;

principles of restorative justice in the b. In line with the legal obligation

investigative method can be based on the that requires the action to be

following provisions: carried out;

1) Article 7 paragraph (1) letter j of c. Must be appropriate,

Law Number 8 of 1981 concerning reasonable, and included in the

Criminal Procedure Code, that position environment;

investigators because of their d. Reasonable consideration

obligation to have authority carry based on compelling

out other actions according to law circumstances;

who are responsible; e. Respect human rights.

2) Article 16 paragraph (1) letter L 3) Article 18 of Law Number 2 of

and Article 18 Law Number 2 of 2002 concerning the Police of the

2002 concerning the Police of the Republic of Indonesia, that for the

Republic of Indonesia and Article 5 public interest officials of the

paragraph (1) number 4 Law Police of the Republic of Indonesia

Number 8 of 1981 concerning in carrying out their duties and

Criminal Procedure Code that powers can act according to their

other actions referred to in Article own judgment , Article 18

16 paragraph (1) is an act of paragraph (2) of Law Number 2 of

inquiry and investigation carried 2002 concerning the Police of the

Republic of Indonesia as stipulated

 in Article 18 paragraph (1) can there is a change in law that allows the

only be carried out in very concept of restorative justice to be applied

necessary circumstances by taking . This means that practically one cannot

into account the laws and rely on the existence of positive law

regulations as well as the beforehand which provides a legitimacy

professional code of ethics for the basis for the application of the concept of

Indonesian National Police; restorative justice in crime prevention

4) Article 22 paragraph (2) letters b practices in Indonesia, especially when

and c of Law Number 20 of 2014 changes to criminal procedural law or

concerning Government criminal law are generally not a priority in

Administration states that any legislation.

discretionary use of government Restorative Justice is justice that

officials aims to fill the legal restores social relations between the

vacuum and provide legal perpetrators and victims of traffic

certainty.2 accidents, restorative means restoration,

namely by compensating the victim) , so

Fill
A. Application of Restorative Justice in that diversion is carried out or diversion
Traffic Accident Cases in the Legal
from the criminal process to the peace
Area of Sabu Raijua Police.
process. The focus of the settlement is not
Positive legal conditions in the
directed at punishing the perpetrators of
criminal field in Indonesia like this
crimes for violating state law, but at
certainly cannot be tolerated or wait until
efforts to restore social relations and
2
Implementation of Investigation Authority, Article social justice that have been damaged by
7 paragraph (1) letter J Law Number 8 of 1981
concerning Criminal Procedure Code, Article 16
paragraph (1) letter L and Article 18 paragraph 1, crime. The restorative justice method
2, Law Number 2 of 2002 concerning the Republic
of Police Indonesia, Article 22 paragraph (2) emphasizes the active involvement of
letters b and c of Law Number 30 of 2014
Concerning Government Administration.
parties affected (directly or indirectly) on their needs. In addition, it provides

from the crime that occurred to find a assistance for perpetrators to avoid future

solution, not relying on State law violations. This is based on a theory of

enforcement with the formal mechanisms justice which considers crimes and

that apply, but is characterized by an violations to be violations against

informal and voluntary process.3 individuals or society, not the state.

In one of the online encyclopedias, Restorative justice that fosters dialogue

it is said that restorative justice (or often between victims and perpetrators shows

also called " reparative justice ") or in highest level of victim satisfaction and

Indonesian terms can be translated as perpetrator accountability.

"restorative or reparative justice or Restorative justice is the settlement

justice" is an approach to justice that of criminal cases involving perpetrators,

focuses on the needs of victims and victims, families of perpetrators/victims,

perpetrators. , as well as the people and other related parties to jointly seek a

involved, rather than satisfying abstract fair solution by emphasizing restoration to

legal principles or punishing perpetrators. its original state and not retaliation. In

Victims take an active role in the process, Indonesian criminal law, usually the

while perpetrators are encouraged to take settlement of cases emphasizes the

responsibility for their actions, "to repair application of rebuttive justice. This

the harm they have done by apologizing, retributive justice approach needs to be

making amends to the victim or providing reformed, namely an alternative settlement

community service." Restorative involves of criminal problems with an emphasis on

both victims and perpetrators and focuses

3
Afthonul Afif, Forgiveness, Reconciliation &
Restorative Justice; Discourse Regarding Past
Violations and Efforts to Get Over It , Yogyakarta
Student Library, 2015, p. 328-329.
problem/conflict recovery and rebalancing gain as much as possible even if you have

society, namely with restirstive justice.4 to harm others.5

Based on this definition, it can be The research method used in this

understood that restorative justice is a research is empirical research. This

design of criminal justice that takes into research uses data types consisting of two

account the interests or needs of victims, types of data. The first is primary data

families and affected communities on the which can be obtained directly from the

basis of accountability of the perpetrators respondents. Data obtained directly from

of criminal acts. Thus, criminal justice is field research ( field research ) in the form

not solely aimed at punishing or holding of the results of interviews conducted with

perpetrators accountable, but the needs or informants based on knowledge,

interests of victims receive balanced experience and explanations from the

attention in the judicial process which can victims, the victims' families, the

be confirmed through court decisions. perpetrators, and the perpetrator's

Most traffic accidents are caused families as well as those in the West Sabu

by human error and negligence. Police. And the second, secondary data

Driver/rider disobedience to traffic rules is obtained by recording the data in the

the main cause of traffic accidents, in research location, books, newspapers,

addition to the bad personal character of browsing through the internet, as well as

the driver/rider such as wanting to win other scientific literature related to the

alone, not caring about other people so problem of this thesis.

that other people become difficult because From the results of the research

of it, besides that another cause is want conducted by the author, it can be seen

that in resolving traffic accident cases that

4
Ali Sodikin, Restorative Justice in Murder
Crimes: The Perspective of Indonesian Criminal
5
Law and Islamic Criminal Law, in As-Syari`ah, 49, Marjan Miharja, Diversion and Restorative Justice
Edition 1 June 2015, H.29. in Handling Traffic Accidents, p.5.
are oriented towards restorative justice In solving traffic accident cases in

with reference to the Chief of Police Sabu-Raijua Regency with the existence of

Circular Letter Number 8 of 2018, the the Chief of Police Circular Number 8 of

mediation process does not go easily 2018 concerning the application of

because there are so many demands from restorative justice, the implementation of

victims and victims' families in the restorative justice in cases of traffic

mediation process, judging from the losses accidents that occurred in the jurisdiction

pretty much. However, it is different for of the Sabu-Raijua Police as follows:

East Nusa Tenggara Province, especially 1. Investigators divert traffic accident

Sabu-Raijua district because of the Chief cases and provide an opportunity

of Police Circular Number 8 of 2018 for perpetrators and families of

concerning the Implementation of perpetrators and victims and

Restorative Justice in the settlement of victims' families to make peace,

criminal cases. In the restorative justice meaning that because the

system , namely building joint perpetrators are children,

participation between perpetrators, investigators give opportunities to

victims, and community groups to resolve the parties, both perpetrators and

an event or crime. Placing perpetrators, their families and victims and their

victims and the community as stakeholders families.

who work together and immediately try to 2. Investigators will help the victim's

find a solution that is seen as fair for all family process Jasa Raharja

parties (win win solution).6 Insurance can help the victim and

family for the victim's medical

6
Bagir Manan, Restorative Justice (an introduction) expenses as well as damage to the
in the book Reflections on the legal dynamics of a
series of thoughts in the last decade, (Jakarta: State victim's vehicle, even though it is
Printing Corporation of the Republic of Indonesia,
2008), h. 4 .
 the State's obligation to help traffic In addition, the application of

accident victims. restorative justice can only be carried out

3. Victims and their families know the on criminal acts before the investigator

shortcomings of the perpetrator's sends a Notice of Commencement of

family, namely families who are Investigation (SPDP) to the Public

less fortunate or the family's Prosecutor. Thus the settlement of traffic

economic level is below average. accident cases between perpetrators and

4. The victim and his family forgave victims of traffic accident crimes

the perpetrator without any (collisions) through restorative justice

coercion. On the one hand, the carried out by West Sabu Police

perpetrator is the victim's investigators, is expected to restore the

grandson, where the victim's and balance of interests by prioritizing victims

victim's families still have a fairly who are harmed as a result of the actions

close family relationship. of the perpetrators of criminal acts either

5. The strong support from the intentionally or otherwise. not deliberate.

victim's family as well as B. Restorative Justice for Traffic

Accident Cases that Happened in the
investigators supports the victim to
Legal Area of the Sabu-Raijua Police
make peace with the perpetrator
The existence of settlement of cases
and his family.
outside the court through restorative
6. The perpetrator and his family
justice or penal mediation is a dimension
were willing to make peace and in
that is studied from a theoretical aspect
this mediation, including the
and practitioners are studied from a
victim's family and the
practical dimension, so penal mediation
perpetrator's family, they managed
will correlate with the achievements of the
to reconcile.
world of justice. As time goes by, there is
an increasing number of cases in all forms Dealing with traffic accident cases

and variations that go to court, so that the (collisions), especially two-wheeled

consequence is in examining and deciding vehicles or motorbikes in Sabu-Raijua

cases according to the principle of Regency is not as easy as turning the palm

"simple, fast and low cost" justice without of the hand, but with the Head of Police

having to sacrifice the achievement of the Circular Letter number 8 of 2018

objectives of the judiciary, namely legal concerning the application of restorative

certainty. benefit and justice. In justice in the settlement of criminal cases .

polarization and penal mediation Therefore, restorative justice greatly

mechanisms, as long as this is really what facilitates the settlement of criminal cases,

the parties (the perpetrator's family and in this case the case of a two-wheeled

the victim's and victim's family) really vehicle traffic accident (collision) in the

want and to achieve a wider interest, jurisdiction of the Sabu Raijua Police.

namely the maintenance of social In the process of resolving this

harmonization. In every community traffic accident case in the jurisdiction of

activity, traveling, both for children and the Sabu Raijua Police, which is being

adults, daily activities require motorized handled by West Sabu Police

vehicles, usually motorbikes. For example, investigators, the implementation of the

every morning the adults go to work or Chief of Police Circular Letter Number 8

take the children to school and the of 2018 concerning the application of

children go to school or to certain places. restorative justice in the settlement of

Therefore, in Sabu-Raijua Regency there criminal cases, restorative justice that is

are minimal cases of traffic accidents oriented towards solving cases that

(collisions), especially motorbikes. focuses attention on perpetrators, victims

and victims' families. Where restorative

justice contains the value of the theory of When this research was carried

punishment contained in the theory of out, the implementation of the Chief of

retributive punishment, deterrence, Police Circular Number 8 of 2018

rehabilitation, resocialization which concerning the Application of Restorative

focuses on restoring restorative justice Justice in Criminal Cases at the West Sabu

actors who pay attention to the interests of Resort Police had already been carried

the victim and the victim's family.7 out. Based on the data the author obtained

The Circular of the Chief of Police at the West Sabu Police Station , there

and Perkap are currently used as the legal were 28 cases that were mediated using a

basis and guidelines for investigators and restorative justice approach for the period

Polri investigators who carry out from 1 January 2018 to 31 December

investigations/investigations, including as 2018. The details of cases that have been

a guarantee of legal protection and carried out use a restorative justice

control oversight, in the application of the approach .8

principles of restorative justice in the As an example of this case on

concept of investigation and investigation October 4 2018. As for a brief description

of criminal acts . for the sake of realizing of the incident on Thursday October 4

the public interest and a sense of 2018 at around 06:40 WITA there was a

community justice, so as to realize traffic accident on the trans Seba-Liae

uniformity in the understanding and road in Nadawawi Village, West Sabu

application of restorative justice within the District , starting with a Honda Supra-X

Polri environment. type motorcycle with a police number, DH

4876 EA driven by the victim, Anavia

Dolorosa Wadu Doko (50 years) moving

7
Henny Saida Flora, Restorative Justice as an
Alternative in Settlement of Crimes and Its
Influence on the Justice System in Indonesia,
8
Ubelaj Journal, volume 3, No. 2, (2018) : 147. West Sabu Police Data
towards Seba and arriving at the TKP Circular Letter No.8/VII/2018 concerning

from the opposite direction, a Yamaha the Implementation of Restorative Justice ,

Jupiter-MX type motorcycle being driven at this stage the victim and the victim's

by the perpetrator, Djian Adibu Hau Wele family received mediation, on the one

(16 years) in front of the TNKB which hand, because the perpetrator was a child,

bounced and there was a collision or they agreed to make peace, but the

traffic accident and the victim was perpetrator's family had to compensate for

immediately taken to the Puskesmas for the victim's losses, both damage to the

first aid because the victim had a broken vehicle and the victim's medical expenses,

nose and nose bleeding, a broken leg after and where the perpetrator's family, Djian

being examined, then referred to Kupang Adibu Hau Wele, was only able to

for treatment an operation was carried out compensate Rp. 3000,000.- (Three Million

with a loss of up to 20 million in medical Rupiah) for medical expenses and

expenses for the victim, 15 million in Rp.4000,000.- (Four Million Rupiah) for

damage costs. During the mediation vehicle damage. The victim's and victim's

process, the perpetrator and the families received compensation because

perpetrator's family did not want to the victim's family knew the economic

reconcile because of the high cost of the situation of the family who could afford it

loss suffered by the victim. After the and the victim's family and the victim's

investigator explained to the victim's family received Jasa Raharja insurance

family and the perpetrator's family to make assistance which was assisted in the

peace, the perpetrator's family received process by investigators together with the

sanctions for compensation for damage to victim's family in the amount of Rp.

the vehicle and the victim's medical 30,000,000.- (Thirty Million Rupiah) for

expenses also with the Head of Police cost of treatment.

 As has been put forward to apply reported party to ensure that the

the Chief of Police Circular Letter No. statement of peace contained no

8/VII/2018, West Sabu police investigators elements of coercion from any

again reminded them to fulfill the formal party.

requirements in implementing restorative 4. Recommendations for the title of a

justice as follows: special case that approves the

1. The letter of request for peace settlement of restorative justice (

between the two parties means that restorative justice ) means that

it is clear here that the reporter after being examined a special case

and the reported party; title must be carried out which

2. Statements and settlement of states that the results of the peace

disputes between the litigants, the must clearly recommend for a case

complainant and/or the reporting title whether it can be done in a

family, the reported party and/or restorative justice manner .

the reported family and involving 5. The perpetrator has no objection to

community shops are known by the responsibility, compensation, or

investigator's superiors; being made to voluntarily make

3. Minutes of additional examination peace.

of the litigants have carried out 6. All criminal acts can be carried out

settlement of cases through in a restorative justice manner (

restorative justice . So after the restorative justice ) against general

reconciliation was established, the crimes that do not cause human

investigator carried out additional victims, meaning that all existing

examinations on both parties, cases do not mean that they can be

namely the complainant and the

carried out in a restorative justice BIBLIOGRAPHY

manner. restorative justice. Books

Afif, Afthounl. 2015. Forgiveness,

reconciliation & Restorative
Justice: Discourse on Past
Violations and Efforts to Get Over
It, Student Library, Yogyakarta.

Anleu, Sharyn L Roach . 2010. Law and

Social Change , Second Edition,
Los Angeles, SAGE .

Arief, Barda Nawawi. 2007 . Policy

Aspects of Penal Mediation in Out-
of-Court Dispute Resolution,
National Seminar on Corporate
Legal Responsibility in the context
of Good Corporate Governance,
Doctoral Program in Law at
Diponegoro University, Inter
Continental Hotel, Jakarta, 27,
March.

Arikunto, Suharsimi. 2012. Research

Procedures for a Practical
Approach, Jakarta, Rineka Cipta .

West Sabu Police data, Thursday 2 June-

August 2022

Garner, Bryan A. 2004. ed, Black`s Law

Dictionary, Eight Edition, west, a
Thomson Business, Unitet state Of
America.

Manan, Bagir, Restorative Justice (an

introduction) in the book
Reflections on the Legal Dynamics
of Thought Series in the Last
Decade. Jakarta: RI State Printing
Corporation, 2008.

Muladi. 2013. Restorative Justice in the

Criminal Justice System and Its
Implementation in Settlement of
Crimes committed by Children
(Jakarta: BPHN).
Mulyad i, Lilik. 2015. Penal Media in the
Indonesian Criminal Justice
System, Alumni, Bandung.

Mulyadi , Lilik . 2008. Juvenile Criminal

Justice System (Bandung: alumni, 2014).

Miharja, Marja, Diversion and Restorative

Justice in Handling Traffic
Accidents.

Saida Flora Henny, Restorative Justice as

an Alternative in Settlement of
Crimes and Its Influence on the
Justice System in Indonesia, Ubelaj
Journal, (2018).

Prodjodikoro, Wirjono . 2003. Principles

of Criminal Law, Refika Aditama, Jakarta.

Book of Criminal Law (KUHP).

Legislation

Law Number 11 of 2012 concerning the

Juvenile Criminal Justice System.
Law Number 42 of 1999 concerning
Fiduciary Guarantees.
Law Number 21 of 2001 concerning
Special Autonomy for the Province of
Papua.
Law Number 8 of 1981 concerning
Criminal Procedure Code.
Law Number 2 of 2002 concerning the
Indonesian National Police.
Law Number 30 of 2014 concerning
Government Administration.
Chief of Police Circular Letter Number:
SE/8/VII/2018 dated 27 July 2018
concerning the Application of
Restorative Justice in Settlement of
Criminal Cases.