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Abstract
This research consists of 2 (two) main issues, namely the Weaknesses of Regulations on the Cessation of Prosecution of
Narcotics Addicts in the Framework of Restorative Justice and Efforts to reconstruct regulations on stopping the
prosecution of narcotics addicts within the framework of restorative justice based on values of justice. This type of
research is descriptive analysis, using a sociological legal research approach. Sociological juridical research, namely
legal research using legal principles and principles in reviewing, viewing, and analyzing problems, in the study, in
addition to reviewing the implementation of law in practice. Research Result Shows that the weaknesses mentioned by
the author is in the legal substance: the prosecutor's authority to stop prosecution that is not based on restorative justice,
there are still many narcotics addicts who end up with prison sentences. Then legal structure: there is no consensus on
restorative justice among members or law enforcement officials. And, in legal culture: when the prosecutor indicted and
in his charge used Article 127, the judge dominantly gave a prison sentence, as if he did not care that the defendant was
also a victim of the crime he had committed. To overcome this, a legal reconstruction is needed in Article 140 Paragraph
(2) of the Criminal Procedure Code by adding the termination of prosecution by the prosecutor as the controller of the
case with the concept of restorative justice. Reconstruction of article 111 of Law No. 35 of 2009 concerning Narcotics by
adding rehabilitation sanctions for narcotics addicts as an option for legal certainty and the effectiveness of sanctions in
the field.
Keywords: Prosecution, Restorative Justice, Narcotics.
Copyright © 2023 The Author(s): This is an open-access article distributed under the terms of the Creative Commons Attribution 4.0 International
License (CC BY-NC 4.0) which permits unrestricted use, distribution, and reproduction in any medium for non-commercial use provided the original
author and source are credited.
© 2023 | Published by Scholars Middle East Publishers, Dubai, United Arab Emirates 19
Gunarto et al., Sch Int J Law Crime Justice, Jan, 2023; 6(1): 18-23
2019 concerning Investigation of Criminal Acts; criminal cases using a restorative justice approach that
Prosecutor's Regulation No. 15 of 2020 concerning focuses on restoring damage to its original state and
Termination of Prosecution Based on Restorative balancing the security and safety of victims and
Justice; and Decree of the Director General of the perpetrators of crimes that no longer lead to retaliation
Supreme Court of the Republic of Indonesia is a breakthrough in the field of law that society wants
No.1691/DJU/SK/PS.00/12/2020 concerning and a procedure that must be arranged in the exercise of
Enforcement of Guidelines for the Implementation of authority to carry out prosecutions and reforms criminal
Restorative Justice. justice system (Saida, 2018).
© 2023 | Published by Scholars Middle East Publishers, Dubai, United Arab Emirates 20
Gunarto et al., Sch Int J Law Crime Justice, Jan, 2023; 6(1): 18-23
Within the Framework Restorative Justice of Value- RESEARCH RESULT AND DISCUSSION
Based 1. Weaknesses in the Regulation on Stopping
Prosecution of Narcotics Addicts in the
This problem is what the author urges to study further Framework of Restorative Justice
in research with the following issues: a. Weaknesses of Legal Substance
1. What are the current weaknesses in stopping Substance (legal substance) is the output of the
the prosecution of narcotics addicts? legal system, in the form of regulations, and decisions
2. How is the reconstruction of regulations to that are used both by those who regulate and those who
stop the prosecution of narcotics addicts within are regulated. The change in the paradigm of retributive
the framework of Restorative Justice based on justice become to restorative justice includes being part
the value of justice? of the changes to the Prosecutor's Law. According to
Attorney General St. Burhanuddin, the spirit of
METHOD OF RESEARCH changing the criminal paradigm can be seen in Law no.
The paradigm that is used in the research this 11 of 2012 concerning the Juvenile Criminal Justice
is the paradigm of constructivism which is the antithesis System, the Law on the Eradication of Trafficking in
of the understanding that lay observation and objectivity Persons, and the Attorney General's Regulation
in finding a reality or science knowledge (Faisal, 2010). (Prosecutor’s regulations ) No. 15 of 2020 concerning
Paradigm also looked at the science of social as an Termination of Prosecution Based on Restorative
analysis of systematic against Socially Meaningful Justice.
Action through observation directly and in detail to the
problem analyzed. The Prosecutor's regulations spirit needs to be
formulated into the Attorney General's Bill so that the
The research type used in writing this paper is norms are stronger. In the hierarchy of laws and
a qualitative research. Writing aims to provide a regulations, the position of the Law is much stronger
description of a society or a certain group of people or a than the Attorney General's Regulations. However, not
description of a symptom or between two or more all formulations of Prosecutor’s regulations are
symptoms. appointed as law norms. "Not everything was taken.
Only important things," he said.
The method used by researchers is a
sociological juridical approach, namely research For example, in what cases can a suspension of
conducted on the real condition of society or the prosecution in favor of restorative justice be possible?
community environment including legal culture/legal Case closure can be done for the sake of law, among
effectiveness, law and development to find facts (fact- others, if there has been a settlement out of court. This
finding) and then identify (problem identification) is commonly referred to as the afdoening buiten
which in the end leads to on problem solving (Soekanto, process. This process can be carried out under the
1982). following conditions: first, for certain non-criminals,
the maximum penalty fine is paid voluntarily by the
As for the source of research used in this study are:
provisions of the legislation; and secondly, there has
1. Primary Data, is data obtained from
been the restoration of the original state using a
information and information from respondents
restorative justice approach. In the event of the second
directly obtained through interviews and
circumstance, the prosecutor shall stop the prosecution.
literature studies.
2. Secondary Data, is an indirect source that is
Prosecutor's regulations Number 15 of 2020
able to provide additional and reinforcement of
stipulate the conditions for cases and perpetrators so
research data. Sources of secondary data in the
that the prosecution can be stopped based on restorative
form of: Primary Legal Material and
justice. The requirements regarding the person or
Secondary Legal Materials and Tertiary Legal
perpetrator are: the suspect is the first time to commit a
Material.
crime. Then, there are two conditions regarding the
In this study, the author use data collection crime. First, the crime committed is only punishable by
techniques, namely literature study, interviews and a fine or punishable by imprisonment for not more than
documentation where the researcher is a key instrument five years. Second, the crime is committed with the
that is the researcher himself who plans, collects, and value of evidence or the value of the losses incurred due
interprets the data. Qualitative data analysis is the to the crime of no more than 2.5 million rupiah.
process of searching for, and systematically compiling
data obtained from interviews, field notes and Based on Article 140 Paragraph (2) letter of
documentation by organizing data into categories, the Criminal Procedure Code, the public prosecutor can
describing it into units, synthesizing, compiling into stop the prosecution, for the following reasons:
patterns, selecting important names and what will be cessation of prosecution for technical reasons and
studied and make conclusions (Moleong, 2002). cessation of prosecution for policy reasons. Termination
of prosecution due to technical reasons, due to
© 2023 | Published by Scholars Middle East Publishers, Dubai, United Arab Emirates 21
Gunarto et al., Sch Int J Law Crime Justice, Jan, 2023; 6(1): 18-23
circumstances which caused the public prosecutor to variable. Social forces make laws, but they don't make
make a decision not to prosecute, namely: If there is them directly. On the one hand, legal awareness
insufficient evidence; if the event is not a criminal act; changes the legal culture, legal culture changes the legal
if the case is closed by law. system, and the legal system influences the socio-
economic and political system in a wider scope. And on
The article explains that the public prosecutor the other hand, socio-economic and political pressures
can terminate the prosecution if there is a lack of greatly affect legal awareness.
evidence or the case is not included in a criminal act.
However, the reality in implementing the termination of Law No. 35 of 2009 concerning Narcotics has
prosecution is carried out by public prosecutors in cases 2 (two) sides, namely a humanist side to narcotics
of abuse of narcotics; most of them have not been addicts, and a complex and firm side to narcotics
implemented in the Indonesian criminal justice system. dealers, meaning that Law No. 35 of 2009 concerning
Narcotics guarantees punishment for addicts/victims of
There are regulatory inconsistencies in Law narcotics abuse in the form of rehabilitation sentences,
no. 35 of 2009 concerning Narcotics, regulatory because basically, they are victims, who must be cured,
inconsistencies first appear in the use of inconsistent while for narcotics dealers in the state of prison
terms such as "abusers", "narcotics addicts", and sentences and some even carry the death penalty
"victims of narcotics abuse". Articles 111 and 112 are because they are considered very evil and can damage
considered to use terminology that is too generic and the nation's generation.
broad (to plant, maintain, own, store, control, or
provide) so that it is often used by law enforcement A narcotics addict has just been found, in
compared to other articles, although these other articles which the actions committed by the perpetrator in Law
are more appropriate to use in the context of the case at no. 35 of 2009 concerning Narcotics were sentenced to
hand, for example. prison. When the prosecutor indicted and in his charge
used Article 127 the dominant judge gave a prison
b. Weaknesses of Legal Structure\ sentence as if he did not care that the defendant was
The legal structure is an institution created by also a victim of the crime he had committed, someone
the legal system with various functions to support the who had to be assisted in recovering so that he would be
operation of the system. This component makes it free from the narcotics that had addicted him, especially
possible to see how the legal system provides services when the defendant They play a role not only as abusers
for regularly processing legal materials. Elements of the (addicts) but also as dealers (related to the illicit traffic
legal structure (legal structure) are institutionalized into of narcotics).
legal entities such as the structure of courts of the first
instance, appeals and cassation, the number of judges, 2. Reconstruction of Regulations for Stopping
and the integrated justice system. The legal substance Prosecution of Narcotics Addicts in the
concerns the entire meaning of the rule of law which Framework of Restorative Justice based on the
contains norms, principles, principles, and rules, written Value of Justice
and unwritten, including court decisions. The legal The application of criminal law in the form of
culture concerns attitudes, behavior, and values related imprisonment for victims of drug use has proven to be
to the law. unsuccessful, which happens every year the number of
victims who are sentenced to imprisonment for drug
Settlement of cases through the justice system users is increasing. This is what needs to be reviewed
ends in a court verdict is an enforcement slow track this regarding the purpose and function of applying criminal
is because law enforcement goes a long way from the law to victims of drug use. The most important factor in
Police, Attorney General's Office, District Court, High efforts to tackle drug abuse, which is often neglected,
Court, and even to the Supreme Court, which will especially by law enforcement officials in Indonesia, is
eventually have an impact on the accumulation of cases. rehabilitation. The model of punishment for victims of
By applying Prosecutor’s regulations No. 15 of 2020 by drug use is still positioned as perpetrators of criminal
carrying out settlements outside the court through acts (criminals) so rehabilitative efforts are often
restorative justice. Challenges to the implementation of neglected.
Prosecutor’s regulations No. 15 of 2020 concerning
Termination of Prosecution Based on Restorative Meanwhile, if one looks at the development of
Justice. treatment for drug addicts in several countries, there has
been a trend that continues to change. In the 1980s,
c. Weaknesses of Legal Culture global policy trends were towards a more violent
Culture (legal) consists of values and attitudes approach to criminalization, even at the user level. In
that influence the operation of law, or what Friedman recent years, world drug policymakers have attempted
calls legal culture. This legal culture functions as a to formulate and recommend policies on how best to
bridge connecting legal regulations with the legal manage drug-related problems exclusively based on
behavior of all citizens. 'Legal culture' is an interrelated practical reasons, one of which is by decriminalizing or
© 2023 | Published by Scholars Middle East Publishers, Dubai, United Arab Emirates 22
Gunarto et al., Sch Int J Law Crime Justice, Jan, 2023; 6(1): 18-23
depenalizing drug addicts. Even so, the two terms have termination of prosecution by the prosecutor as
different working forms. the controller of the case with the concept of
restorative justice. Reconstruction of article
To stop the prosecution, the prosecutor needs 111 of Law No. 35 of 2009 concerning
to consider several things, such as subject, object, Narcotics by adding rehabilitation sanctions
category, and the threat of crime; background of the for narcotics addicts as an option for legal
occurrence of the crime; level of disgrace; losses or certainty and effectiveness of sanctions in the
consequences arising from criminal acts; as well as the field.
costs and benefits of case handling. In article 140
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