Klibel5 law 26

Proceeding - Kuala Lumpur International Business, Economics and Law Conference Vol. 4.
November 29 - 30, 2014. Hotel Putra, Kuala Lumpur, Malaysia. ISBN 978-967-11350-4-4
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RESTORATIVE JUSTICE APPROACH IN PROVIDING PROTECTION FOR VICTIMS OF CRIME LAW
Henny Saida Flora, SH. M.Hum.M.Kn
Law Faculty, Unversity Of Katholic Santo Thomas, Medan, Indonesia
Email : hennysaida@yahoo.com
ABSTRACT
The setting of the victim in the sentencing process in Indonesia shows that setting the criminal law against the victim has not been a clear pattern can also be said is the absence of justice especially for the victims of crime. Restorative justice is an approach to justice that focuses on the needs of victims, offenders and communities involved, instead of satisfying abstract legal principles or punish the perpetrators. Victims take an active role in the process while offenders are encouraged separately take responsibility for their actions, to fix things that harm them, done by apologizing, returning stolen money, or community service. The concept of ideas that respond to the development of the criminal justice system with emphasis on the involvement of victims and society who felt marginalized by the mechanisms that work in the criminal justice system that exists today. Restorative justice is not justice that emphasizes the procedures (procedural justice), but substantive justice. Substantive justice is the basis of the Indonesian state because it is a very good prospect for the happiness of the nation Indonesia. Indonesia became a state law that happy people and for the selected concept of restorative justice. The aim of restorative justice is to encourage the creation of a fair trial and to encourage the parties to participate in it. The victim felt that his suffering be considered and compensation agreed by the suffering and loss he suffered. Offender not to suffer in order to realize his mistake and for the community while the guarantee balance in life and aspirations channeled by the government. Restorative justice approach in handling criminal act aims to prevent perpetrators from punishment process that sometimes can be felt not reflect the values of justice. In criminal law enforcement efforts should not only due to criminal acts that are the focus of attention, but one important thing that should not be overlooked are the factors that cause a person committing a crime.
Keywords: Restorative Justice, Legal Protection, Victims of Crime.
INTRODUCTION
Restorative Justice is understood as a form of settlement approach criminal cases involving offenders, victims, family perpetrators / victims and other parties involved to work together to find a fair settlement with the emphasis on restoring back to the original condition and not retaliation.
According to Burt Galaway and Joe Hudson, restorative justice is defined as
"A definition of restorative justice includes the following fundamental elements", crime is Viewed primarily as a conflict between individuals that result in injures to Victims communities and the offenders themselves, second, the aim of the criminal justice process should be to create peace in communities by reconciling the parties and repairing the injuries are the caused by the dispute, third, the criminal justice process should facilitate active participation by the Victims, offenders, and their communities in order to find solution to the conflict ". 1
Mechanism expressed by Burt Gawalay and Joe Hudson as a medium, to bring together victims and offenders in the criminal justice system which has been conventionally regarded as something that is not
1 Eva Achjani Zulfa dan Indriyanto Seno Adji, 2011, Pergeseran Paradigma Pemidanaan, Lubuk Agung, Bandung, hlm. 65

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possible. Restorative justice approach is assumed as the most sophisticated shift of the various models and mechanisms that work in the criminal justice system in handling criminal cases at this time. The UN Basic Principles through that have considered that the approach outlined in restorative justice is an approach that can be used in a rational criminal justice system. This is consistent with the view that Hoefnagels GP confirms that political criminals should be rational. Restorative justice approach is a paradigm that can be used as a frame of criminal case management strategy that aims to answer dissatisfaction with the workings of the criminal justice system that exists today.
Restorative justice approach is a concept that responds to the development of thought justice system with emphasis on the needs of community involvement and the victims were deemed eliminated as a mechanism that works in the criminal justice system that existed at this time on the other hand, restorative justice is also a new frame can be used in responding to a crime for law enforcement and workers. 2
In general, the basic principles of restorative justice through mediation determines that the prerequisites of restorative justice such as domestic violence or sexual abuse that victims of crime should be approved, the violence must be stopped, offenders must take responsibility, only offenders who must blame is not on the victim, and the mediation process can only take place with the consent of the victim.
From prerequisite penal mediation is seen that the human dignity of victims of crime should be a priority. Penal mediation involves a spiritual process to recover and raise the confidence of victims. The urgency of penal mediation towards restorative justice is an attempt to reach a qualified settlement process a win-win solution. From the general standard of restorative justice is a crime against corruption penal mediation is not possible because the victims of crime corruption spread in the lives of many people that the socio economic seized by criminals.
Some of the reasons for the need of restorative justice penal mediation for example in the case of domestic violence, they do not want the case to court (eg due to embarrassment) they do not see a way out jail sentences, they do not require the relationship changed and they want a way out of the problem of violence in the household.
Of the reasons that require the mediation, not necessary in the standard pattern seeking Indonesian penal mediation procedure can be made different from other countries, for example, take the value of the local legal wisdom like the wisdom of the local law of Papua, Aceh and others. But that is guided to the protection of victims, the procedures provide alternatives to voluntary efforts, multi-faceted approach, the availability of support services, manpower resources and sufficient staff training and supervision earnest.
Response community and state stakeholders is a prerequisite to the establishment of crime security, public order, peace and justice. Response in the form of legal action or formal criminal justice process and criminal justice through the mechanism of information is legal action that would avoid impunity be evil seed and erosion of the authority of law. loss of power will be a factor appealed law will spread and asocial individual to act illegally. In a sense also be losing the value of substantive law as a neutral authority, which in essence is always be respected by society and the state.
The act of sentencing alternatives should be pursued by the state of national unity that adhesion becomes stronger and become potential socio-economic and political development of the country. Appropriateness of sentences through restorative justice so the duties and responsibilities of law enforcement for the analysis of the law. Restorative justice will be the agency that can be a means of distributive justice especially for the victims and vulnerable people in the political and socio-economically weak.
Theoretically there are three purposes of the law of justice, certainty and expediency. These objectives should be achieved together without mutual affirm one another. Although in practice can occur attraction between considerations of fairness, certainty, and usefulness, but should still be able to achieve common ground
2 Dwija Priyatno, 2009, Sistem Pelaksanaan Pidana Penjara di Indonesia, Refika Aditama, Bandung, hlm. 15

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between the three. The law must be able to realize the exact justice and helpful, certainty fair and helpful, as well as the usefulness of exact and fair.
Achievement of the purpose of law involves various sub elements of the legal system, one that has a major role is the area of law enforcement. Law enforcement in the form of actions and decisions of law enforcement agencies is a crucial area because this is where the legal norms that are general and abstract applied in concrete cases are certainly different from one case to another case. In this implementation process has a very broad interpretation of space, which of course it should be legal purposes as orientation to be achieved. Even in the application or enforcement of the rule of law to permit a discretion which of course should be taken in consideration of the achievement of the objectives of the law itself. But the vastness of space implementation, interpretation, and opportunities discretion also open the possibility of abuse of power.
Law enforcement also becomes very important because for people to understand what is legal and what is known about facing. The law is the law enforcement actions and legal decisions are acceptable. People understand the law in a realistic legal perspective, not as a positivistic legal norms contained in the rule of law. For the people of criminal law is that criminal proceedings initiated the investigation of the actions carried out by the police, prosecution by the prosecutor, and the judge's decision. Justice for the measure not of sound legal norms, but rather what is faced and accepted the decision. Similarly, legal certainty and benefit to society, is based on the realities faced by law. Therefore, the process of law enforcement has an important role in achieving the objectives of the law.
One of the issues of concern to today's society in the enforcement process is not materialized principle of justice as a legal purpose. community see the various handling criminal cases not reflect well on the side of justice and the handling of the judge's decision. Some cases are often a concern is considered a small criminal case people do not deserve to be punished, or even taken to court. These cases, for example cases committed by children and cases of theft of small items are carried out because of economic necessity.
Great public concern and perception of injustice in the law enforcement process can not be said to be solely or implementation problems due to the inability of law enforcement officers. Instead the issue comes to differences in conceptions of justice are understood by law enforcement officers with justice perceived by the public.
Law as law enforcement officers, as well as the other jurists, for this understanding of justice as taught by Aristoteles, namely distributive justice and corrective justice. Distributive justice is proportional distribution in the field of public law. While corrective justice is something wrong correction, provide compensation to the injured party, or an appropriate punishment for the perpetrators. In the perspective of justice punishment is punishment for a person who committed the crime. This justice is individual in the sense of not seeing the sociological problems of the criminal act itself and the penalty to be imposed.
Currently there has been a development of the theory of justice and fairness are regarded as the most comprehensive thinking is presented by John Rawls. Rawls saw the main interest of justice is first, guarantees the stability of human life and both, the balance between personal life and life together. Rawls believed that the ideal structure of a just society is the basic structure of the original society, where basic rights, freedom, power, authority, opportunity, income, and welfare are met. Category structure of an ideal society is used to assess whether the existing social institutions was fair or not, as well as to correct social injustice. 3
Within the framework of restorative justice approach that values promoted by the roots of restorative justice is rooted in traditional values in traditional societies such as the value of balance, harmony, and peace in the society. Therefore in some countries noted that the judiciary customs retained as a means for people to resolve disputes or problems they experienced including criminal cases.
In customary law that had been used to solve various cases in Indonesia has proven that settlement by engaging offenders, victims and society and community leaders give more perceived sense of justice. In the
3 John Rawls, 2011, A Theory of Justice, Teori Keadilan, Pustaka Pelajar, Yogyakarta, hlm. 3-5.

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process of settling disputes arising in this society, the emphasis on recovery efforts in public relations, pushing back the establishment of communication within the community and harmony improving community relations damaged by the act of the offender or offenders.
Therefore, restorative justice is a discourse that needs to be developed and applied in the application of equitable justice, it is intended that the criminal act can not be solved and that the criminal act be handled properly by the various implications.
SETTING THE PROTECTION OF VICTIMS IN PROCESS PUNISHMENT
Definition of a victim of crime is closely related to the nature of the crime itself. Victims of crime at first only be interpreted as a victim of crime is conventional, such as murder, rape, assault, and theft. Later expanded into a sense of non conventional crimes, such as terrorism, piracy, drug trafficking, organized crime, crimes against humanity (crime against humanity), abuse of power and others. According Mardjono victim talks about involves the violation of human rights, which is sourced from illegal abuses of economic power and illegal abuses of public power.
Definition of a victim of crime aimed at the victims of violations of criminal law (crimes) is given by criminology and viktimologi, the interest in this field of study is much directed at the victim action before or at the time (the process) of the crime. Term of crime victims discipline viktimology then developed to examine victims of crime in criminal law and / or criminal justice system.
United Nations Declaration No. A / Res / 40/34 of 1985 provides definitions of crime victims as follows:
"Person who, individually or collectivelly have Suffered harm, physical or mental injury induding, Suffering emotional, economic loss or impairment of susbstantial Reviews their fundamental rights, through acts or omissions that are in violation of criminal laws operative within member states, Including Reviews those laws proscribing abuse of power ".
Determination definitions victims of crime or the impact of crime on victims is the part that is not easy to define, because it reaches the aspects of life that is not limited and is not counted. Therefore it is easier to determine than formulate restrictions limit the impact of crime on victims of crime. A description of the crime victims include at least three things: who is the victim of a crime, whether suffering or loss suffered by the victims of crime and who is responsible and / or how the pain and loss suffered by the victim was recovered.
Victims of crime are grouped into several groups, among others, victims of crime are abstract (abstract Victims), such as country or community, the victim group (collective Victims), for example, organizations or groups based on race, religion, ethnicity, race, skin color, or because there are similarities interest and real victims (real victim), for example individual or a few individuals.
Criminal justice system or the criminal justice system according to Encyclopaedia Crime and Justice, is divided into three terms, namely restrictions normative constraints, administrative, and social. Criminal justice system from the aspects of the norm or as a normative system is a body of legal rules expressing social values through prohibitions backed by penal sanctions against conduct Viewed as seriously wrong or harmful. Of the administrative system to see the criminal justice system as the official comprehends apparatus for enforcing the criminal law, Including the police and other frontline enforcement agencies, procecutorial authorities, the judiciary, and penal and Correctional facilities and services. While the criminal justice system from a social or a social system is a defining disclosures related to all elements in society and their scope is not only within the scope of criminal law enacted by the legislators but includes provisions that exist in society at all levels.

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Legal position of victims of crime is defined as the legal standing of victims in criminal law. The victim's legal position can be known through the study of the concept of a crime or violation of criminal law, the rights or interests of offenders who violated the criminal law. concept of evil into the base of the principal legal assessment of the position of crime victims in the criminal justice system, due to the implementation of the rights owned or to be owned by victims of crime will have a stronger legal basis if the existence and position of law recognized by the criminal law (and automatically) also in the criminal justice system). study of the legal position of victims of crime in the criminal justice system is done on formal criminal law rules and substantive law on which the operation of the criminal justice system.
Workings of the criminal justice process is a system of authority that is a series of events in the criminal justice system (sub-systems) in order to carry out their respective functions. The stages of the criminal justice process begins from the investigation by the police, prosecution by the prosecutor (pre-adjudication), examination by the trial judge (adjudication) and the implementation of the criminal (post-adjudication).
Law is a system that is a system of norms. As the legal system has the general properties of a system. There are at least three common characteristics that is through (Wholes), has several elements (elements), all the elements are interrelated (relations) and then form the structure (structure), therefore, the legal system has a way of working alone to measure the validity of a norm in a legal system. Lawrence W Friedman, gave the concept of the legal system in a broad sense, includes the three elements of the legal system, the structural elements, the substantive law and legal culture. and then he adds a fourth element, namely the impact. Relevance to the study of the legal position of victims of crime in the criminal justice system is examined from two aspects: the substance of the criminal law legislation of criminal law (material and formal) and the judiciary (criminal justice system) as a structural element. Study of the criminal justice system is understood as a process of decision making in the application of criminal law criminal law (law in books) against criminal suspects or offenders (law in action). 4
Substantive elements of the criminal justice system has four elements namely the value of the underlying legal system (Philosophic), the existence of general principles of law (legal principles), the existence of norms or laws (legal rules) and the legal community as a supporter of the legal system (legal society). These four basic elements are arranged in a sequence that forms a system of substantive law (national) who exhibited such piramidt, the top is the values, the principles of law, legislation that was in the middle, and the bottom is the community. The substantive elements have a common thread that unites. Therefore each can be changed according to the nature and the changes were not always at the same time.
The relationship between law and legal principle, that principle of law determines the legal content. Ruslan Saleh explicitly, stated that the rule of positive law only has meaning if the law associated with the principle of law.5 So the rule of law has meaning in yuridic enforceability or validity yuridic if it is associated with the principles of law. In relation to the substantive law of value in the system. Soerjono Soekanto argue that the law is a concretization of the prevailing value system in the society. An idealized situation is a lack of compatibility between the law and the value system.6 Consequently the change in value will be followed by a change in the law which is below, while the changes at the bottom is not necessarily followed by a shift in the underlying value.
From the aspect of clearly necessary to shift the perspective of the criminal justice system that is more oriented to the victim, the offender and the community. Strictly speaking such a shift in perspective from the state of retributive (retributive justice) justice oriented towards restorative justice (restorative justice). In essence, the perspective shifts marked a shift in criminal law. Basically the theory of restorative justice puts a
4 H. Parman Soeparman, 2007, Pengaturan Hak Mengajukan Upaya Hukum Peninjauan Kembali Dalam Perkara Pidana Bagi Korban Kejahatan, Refika Aditama, Bandung, hlm. 24-27
5 Ruslan Saleh, 1996, Pembinaan Citra Hukum dan Asas-Asas Hukum Nasional, Karya Dunia, Fikri Jakarta, hlm. 5. Pandangan yangs ama juga diajukan oleh Satjipto Rahardjo, 1982, Ilmu Hukum, Alumni, Bandung, hlm. 90
6 Soerjono Soekanto, 1982, Kesadaran Hukum Masyarakat, Rajawali, Jakarta, hlm.159

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higher value on the direct involvement by the parties. Victims serves as a control element. Offenders are encouraged to accept responsibility as an important stage in repairing the harm caused by crime, and in building a socially responsible value system. Active community involvement strengthens the community itself and uphold the values community responsive and caring to others. Restorative justice perspective requires a collaborative effort with the community and government to create an environment where the victim and offender can reconcile their conflicts and resolve their loss, at the same time create a sense of security in the community.
GENERAL PRINCIPLES OF RESTORATIVE JUSTICE
Interpret restorative justice approach that can be achieved when the criminal acts resolution process can involve all parties involved can define the concept of settlement and sanctions. This concept has brought a paradigm shift in understanding the concept of administration of justice in the criminal justice system.7 So that because the concept of the criminal justice system of justice generally considered to have been reached when the offender can be sanctioned by the state and the victim has no place in the process of completion, whereas in the framework of the concept of restorative justice, criminals, victims and the entire community is involved in completing the follow-criminal directly and focus on recovery suffered by the victim (victim-centered), while the state serves as a facilitating role in the process of settlement of a criminal offense.
Some of the principles that apply universally inherent in the concept of restorative approaches in the resolution of criminal offenses are as follows:
1. Principles of Fair Settlement (Due Process)
In any criminal justice system through out the country, the suspects are always given the right to know beforehand about certain procedural-procedural protection when faced with prosecution or punishment. The judicial process (due process) should be considered as a form of protection to give balance to the power of the state to hold, and carry out the punishment of a decision to punish.
Among the identified protection-protection that has been accepted internationally and are included as the idea of due process is the right to be presumed innocent (presumption of innoncence) and the right to a fair trial (fair) and the right to legal counsel for assistance. In the completion of a restorative process, a formal process limit is always given to the accused at any time, both during and after the restorative process rights of the accused to get a fair trial is maintained. However, if the suspect is required to relinquish the power and choose to participate in a restorative process, then the suspect must be informed about the implications of his decision to pick a restorative intervention. Conversely, if the verdict settlement through restorative offender can not meet the decision because they reduce the rights of suspects too heavy or burdensome, then the verdict given additional protection, the suspect can allowed to appeal against any agreement reached in the restorative process is based on reasons not guilty.
In the process of implementation mechanisms restorative approach requires the desire to keep the protection of suspects associated with due process. However, because the process requires the restoration of the guilty verdict prior then this raises questions about the extent to which informed consent (informed consent) fund voluntary waiver (waiver of rights) can be used as the initial fair settlement. The basic concept through the completion of a restorative approach that requires the recognition of guilt to the perpetrator is a requirement to get a way out resumption of the recovery process as well as a signal that the perpetrators must be held accountable for his actions because of a guilty perpetrator is another form of a responsibility.
2. Equal Protection
7 Rufinus Hotmaulana Hutauruk, 2013, Penanggulangan Kejahatan Korporasi Melalui Pendekatan Restoratif Suatu Terobosan Hukum, Sinar Grafika, Jakarta, hlm. 126.

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In the process of settlement of criminal acts through a restorative approach, justice must arise from a process of understanding the meaning and purpose of justice, regardless of race, sex, religion, national origin and social status.
There are doubts about the ability of restorative approaches in solving a problem and provides a "sense of justice" among the different participants as it can be one of the parties has the advantage of the strength of the economic, intellectual, political or even physical, so that there will be an inequality between the parties who participate in a restorative process. Examples which may be indicated that there are other inequalities between the rich and corporations among individual employees, relationship (spouse) married one involving abuse or arbitrariness and physical or verbal, and the relationship between parents and children.
A party who does not have the potential power to accept an agreement that gave him what was far less than what he should get, so that the restorative process expected a mediator must be fair and neutral in guiding the process of mediation to reach a negotiation but not also rule out the possibility mediator will be tempted to support the position of the weaker party or stronger.
According to Wright, there are three ways to compensate for the inequalities that can be implemented. First, mediators can support the weaker party in the restorative process. For example, a mediator can help participants who are less articulate their feelings, thoughts and emotions. Secondly, legal counsel can advise the parties who have weaker bargaining power not to accept an unequal treaty or produced in a way that is not fair. These three cases can be rejected, for example, cases involving landlord or innkeeper who tried to resolve the case by some tenants to avoid aggregate bargaining power of tenants that may not be suitable or appropriate for informal processes, which the innkeeper uses his power to improve its bargaining position.
3. Rights of Victims
In the resolution of a problem through a restorative approach, the rights of victims need attention because the victims are the stakeholders that should have accrued to (legally) in the process of completion. In the criminal justice system in general, it is suspected that the victim does not receive equal protection of the holder of the authority of the criminal justice system, so that the essential interests of the victim are often overlooked and if it is exists only to fulfill the administrative or management system of criminal justice.
Rowland argues, that the interests of victims often intersects with the interests of the state. Proponents of the concept of the protection of the rights of victims are also of the view is obviously unfair to the victim when the state more heed to the needs of the material, psychological, legal, for violators, while the state does not provide responsibility for a decent life for victims. Though very basic stage of the problem solving process in particular is a victim advocate must obtain a position to participate in the process, in order to protect their interests, including the right to give evidence (testimony) on the stage of investigation and the imposition human error, the right to receive redress, the right to be informed of court proceedings and the right to be represented by counsel.
4. Proportionality
The idea of fairness in the restorative system is based on consensus agreement that provides alternative options to solve the problem while in notion of proportionality is related to the scope of the common suffering sanctions must be imposed on offenders who commit violations. In criminal justice in general, considered to have been met if the proportionality has fulfilled a sense of retributive justice (balance tradeoffs between Punish and reward), whereas in the restorative approach can impose sanctions against violators disproportionate use within

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the same offense. Some victims may only want an apology understated while other victims may expect full restoration of offenders.
In the formal justice system, a balance between uniformity and flexibility of sentence is not a priority because the system has considered the mitigating factors and aggravating factors in determining a sanction. While the restorative process allows the parties to consider the particular circumstances around the crime of when negotiating a form sanctions as an agreement. Third, guidelines and rules can be made to limit the possibility of tough sanctions imposed because of undue was a mistake to give the courts a role in ensuring that there are no large gaps in the charging of the offender in the informal processes. Fourth consistency and proportionality gives an abstract notion of fairness, which in the criminal justice system (perceived), and vice versa restorative justice seeks to restore the social imbalances in communities affected by crime.
Restorative process of giving a series of sanctions including options to change the sanctions in the future with specific conditions remain if an agreement (agreement) can not be achieved then sanctions can be handed over to the judicial officers (judges) within a certain scope. Disparity between the imposition of sanctions can occur when the offender was sentenced only on the offense alone, or according to the actual loss caused by the offense, or when the offender has a different ability to perform recovery and compensation (reparation).
5. Presumption of Innocence
In criminal justice in general, the state has the burden of proof to prove the guilt of the suspect. Since the burden of proof and get it done, suspects should be considered innocent. Unlike the case in the restorative process, which requires that a guilty offender is a condition of the settlement can proceed problem. In restoratif processes, the rights of suspects on the presumption of innocence can be compromised in a way that the suspect has the right to do termination of the restoration process and reject the recognition that he is guilty, and then choose an option a formal process in which errors should be proven. or the suspect may gain the right to appeal to the court and all treaties agreed in the restorative process has no binding force stated. Advocate or legal counsel must be provided at all times to inform the suspect of the implications of participation in a restorative process that confirms that participation in a restorative process should not be as a formal recognition of the error, and that the statements made in the process should not be accepted in a formal judicial examination.
6. Rights Consultation Aid or Legal Counsel
In the restorative process, advocates or legal counsel had a strategic role to establish the offender's ability to protect its rights vis-à-vis the legal aid counsel. In all stages of informal restorative process, the suspect can be informed through the assistance of legal counsel regarding the rights and his duty which can be used as a consideration in making the decision.
However, once the suspect chooses to participate in a restorative process, he should act and speak in its own name. Their positions that allow attorneys representing greater participation in all stages of points during the restorative process, will destroy many of the benefits expected from the encounter (encounter) as a direct communication and expression of feelings, and collective decision making proactive lawyer can also be very helpful in giving advice their clients about the most likely outcome is obtained and should be expected.
PROTECTION OF VICTIMS WITH RESTORATIVE JUSTICE APPROACH
Arrangements for the protection of victims in the sentencing process in Indonesia shows that setting the criminal law against a crime victim has not shown a clear pattern. The victim was part of a crime, other than that the victim also had a role on the occurrence of a crime. Crime is a violation of positive law that is resolved by the criminal justice system. With the criminal justice system to resolve or deal with a crime that is a violation of

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positive law is expected to punish or to free a person from the threat of crime. but in systematic criminal justice can not be declared unfair to the victim of a crime that occurred, the position of the victim in the criminal justice system because less attention in the criminal justice system tend to be oriented to the perpetrators and victims of criminal acts while standing less attention. It can be seen from rules and regulations regarding the offenses of which that legislation is no victim-oriented, so it can be seen that the lack of justice for victims in the criminal justice system in Indonesia. 8
The concept of restorative justice approach is an approach that rely more focused on the creation of conditions for the balance of justice perpetrators and victims themselves. Mechanisms and procedures of criminal justice that focuses on punishment transformed into a process of dialogue and mediation to create a criminal case settlement agreement or a more fair and balanced for the victim and the perpetrator. 9
Restorative justice itself has the meaning of justice that restores what was actually restored. In the conventional criminal justice process known presence or restitution to victims, while restoration has a broader meaning. Restoration includes restoration of the relationship between the victim and the perpetrator. Recovery of this relationship can be based on mutual agreement between the victim and the perpetrator. Victims may convey the damage suffered and the offender was given a chance for redemption, through the mechanism of compensation, peace, social work, or other agreements. This is important because conventional sentencing process does not give space to the parties involved, in this case the victim and offender to participate active in solving their problems. Any indication of a criminal offense, regardless of escalation actions, will continue to be rolled into the realm of law enforcement which only came under the jurisdiction of the law enforcement. active participation of the public seemed not to be important anymore, it all just comes down to the decision of sentencing or punishment without seeing the essence. 10
The authority to set aside the criminal case itself is known as the embodiment of the principle of opportunity is only held by the Attorney General.11 In actual practice, even at the level of police investigation often collide with the formal system of criminal procedure when about to rule out a criminal case, the police have the discretion not cover authority to assess a case for continued or discontinued, the proportion is only limited to the crime of sufficient evidence. If there is evidence of a criminal offense has taken place, the police will continue to carry forward the case, therefore, in the Criminal Procedure Code bill that needs to be driven approach to handling the latest criminal act more humane, more stressed and prioritize restorative justice approach than formal legalistic considerations.
Thus restorative justice arise because of dissatisfaction with the criminal justice system who have been there, which does not involve the conflicting parties but only between states with the perpetrator. Victims and communities are not involved in conflict resolution, unlike the case with restorative justice in which victims and communities are involved as parties to resolve the conflict.
In Indonesian criminal cases resolved through the criminal justice system. The criminal justice system is a system according to Mardjono Reksodiputro in a community to solve crimes. The purpose of the criminal justice system, namely:
a. Prevent people becoming victims of crime
b. Resolving cases of crimes so that the public is satisfied that justice has been done and the guilty are punished and the
c. Ensuring that they have ever committed a crime not to repeat the crime.
d.
However, if it is connected with the history of the emergence of restorative justice, the criminal justice system did not perform as expected due to failing to give adequate space to the interests of potential victims and
8 Lilik Mulyadi, 2007, Kapita Selekta Hukum Pidana, Kriminologi & Victimology, Djambatan, Jakarta, hlm.126
9 H. Syaiful Bakhri, 2010, Kebijakan Kriminal,Dalam Perspektif Pembaruan Sistem Peradilan Pidana Indonesia, Total Media, Yogyakarta, hlm. 141.
10 Eriyantouw Wahid, 2009,Keadilan Restoratif dan Peradilan Konvensional Dalam Hukum Pidana, Universitas Trisakti, Jakarta, hlm. 33
11 Lilik Mulyadi, 2008, Bunga Rampai Hukum Pidana, Teoritis dan Praktik, Alumni, Bandung, hlm. 9

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potential defendants in other words, the conventional criminal justice system today in various countries often lead dissatisfaction and disappointment.
Criminal law is the reference determines a crime, according to Mardjono Reksodiputro as a reaction to the action or the person who has violated the moral norms and laws, and because it has been threatened the foundations of government, law, order, and social welfare. The perpetrators of the crime is considered to have no care for the general welfare, safety, and property of others. Thus on the basis of protection to the citizens of the state that deal with the perpetrators of the crime, hence the position of the victims, who are basically related to the most disadvantaged of an offense lost its role. 12
Therefore it is in the protection of victims into opening key approach is the use of Restorative Justice
"Presence of restorative justice basically be the key to opening a rethinking about the position of the victim in a criminal case settlement. handling of criminal justice rastorative approach offers different views and approaches in understanding and dealing with a criminal offense. in view of the main victims of restorative justice for the occurrence of a crime is not a state, therefore the crime creates an obligation to fix broken relationships as a result of the occurrence of an offense ". 13
It is also consistent with Gandjar L Bondan who thinks restorative justice theoretically and practically can be used in the completion of a criminal offense. Gandjar explained as follows:
"In a philosophical framework, the presence of restorative justice approach in criminal law is not intended to abolish the criminal law, criminal law or melt and civil law, because restorative justice approach that prioritizes pathway mediation between victim and perpetrator. Restorative justice approach to precisely restore the function of criminal law in the original track that is the function remidium ultimum, an ultimate weapon when other remedies can no longer be used to face a criminal act in public. In the practical order handling and settlement of criminal cases by using a restorative justice approach offers alternative answers over a number of issues facing the criminal justice system, such as the administration of justice is a difficult, long, and expensive, stacking cases or court decisions that do not accommodate the interests of the victim. "
In practice, the parties should be aware that the victim's role is parties involved in the implementation of a mechanism for handling criminal cases through a restorative justice approach. Parties in question are:
1. Victims of crime, its interests must be completely protected in any restorative justice process. preparation must be done before the victim by the perpetrator met. The preparation may require weeks or months. The victim participated voluntarily informed of their rights, among others, should not withdraw at any time of the restorative justice process. The victim may or immature organizations, both must be represented and legal counsel
2. Offenders. By participating voluntarily and pleaded guilty, the offender has the right to obtain legal advice and may at any time withdraw the perpetrator is responsible for the obligations and fulfill the promise of meeting an agreement.
3. Police. Legislation should regulate the police authority and transferring the case to a restorative process, especially in the case and the cases are more severe. According to the practice in some countries the options that may be taken by the police is as a facilitator, as a user of restorative justice approach in resolving conflicts and petty as monitoring the implementation of the agreement and a violation of the agreement.
4. Attorney. Almost in all countries in the world, the prosecutor is Dominus litis, the determinant of the case so instrumental in submitting the case to a restorative path especially with a system such as suspend prosecution, the prosecutor pointed to the results of restorative justice is appropriate that the case in question, to be more successful, the prosecutor handling the case must have been actively discussing his case with the police.
12 Mardjono Reksodiputro, 1997, Bunga Rampai Permasalahan Dalam Sistem Peradilan Pidana, Universitas Indonesia, Jakarta, hlm.38-39
13 Lilik Mulyadi, 2010, Kompilasi Hukum Pidana Dalam Perspektif Teoretis dan Praktik Peradilan, Mandar Maju, Bandung, hlm. 131

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5. lawyer, he can play a role to enlighten the offender restorative process and push their clients choose the restorative process for the sake of a more favorable outcome. Proactive attitude attorneys can lower the pending lawsuits.
6. Court. Both in common law countries as well as in civil law countries, judges can play a major role in transferring the case to a restorative justice process. he can be active in the process or in the event of the imposition of sanctions circumference (circle sentencing). In practice Thus, the judge may conduct hearings or make settlement conduct monitoring. Criminal conditional instance can be based on the results of a restorative process. So hearing the application of sanctions should await the outcome of restorative postponed.
7. Officers jail. Restorative process performed also in the prison environment. Authorized prison officials should consider the results of restorative mediation between the inmates with his victim, before deciding granting conditional loose. Restorative justice programs can be helpful in overcoming the pressures that are not fun, especially if there is a conflict between the prison population.
8. Society. Not a few members of a suspect community restorative justice program as a means to alleviate the perpetrators, particularly in the context of serious crimes. Preventing such an attitude, the members of the community be given enlightenment principles and practices, and likened the process of restorative justice. 14
Restorative justice is the goal:
1. Victim who agree to be involved in the process can do it safely and come out satisfied
2. Offenders understand how Reviews their action has affected the victim and other people, Assume responsibility for the Consequences of Reviews their action and commit to making reparation
3. Flexible measures are the agreed-upon by the parties roomates emphasize repairing the harm done and whereever possible, also address the Reasons for the offense
4. Offenders Reviews their commitment to live up to repair the harm done and attempt to address factors that led to tha Reviews their behavior, and
5. The victim and the Offender both understand the dynamic that led to the specific incident, gain a sense of closure and are reintegrated into the community.
RESTORATIVE JUSTICE AS AN ALTERNATIVE FUTURE PUNISHMENT SYSTEM
Restorative justice approach focuses on the needs of both victims and perpetrators of crime. In addition, the approach of restorative justice to help the perpetrators to avoid other crimes in the future. It is based on a theory of justice that considers crime and violation of the principle is a violation of the individual or the community and not to the state. Restorative justice fosters dialogue between victim and offender will demonstrate the highest levels of victim satisfaction and offender accountability.
The concept of restorative justice is fundamentally simple. Size of justice is no longer based on retaliation in kind from the victim to the perpetrator (whether physical, psychological or punishment), but painful act of healing by providing support to the victim and requires the offender to be responsible with the help of families and communities when needed.
Restorative justice as one of the efforts to seek peaceful conflict resolution outside of the court is still difficult to apply. In Indonesia many traditional law can be restorative justice, but its existence is not recognized by the state or not codified in national law. Customary law can resolve the conflicts that arise in society and giving satisfaction to the parties to the conflict. The emergence of the idea of restorative justice as a critique of the application of the criminal justice system with imprisonment which is considered not effectively resolve social conflicts. The cause, the parties involved in the conflict were not involved in conflict resolution. Victims still become victims, perpetrators were jailed also raises new problems for the family and so on. It is therefore the task of the state government in making laws should seriously consider two things: the law should be made
14 Lilik Mulyadi, 2012, Bunga Rampai Hukum Pidana Umum dan Khusus, Alumni, Bandung, hlm. 157-167

193
prosperous and happy society and the laws that are created should be aligned to the community and that's what the law called for humans.
The restorative justice are realized in the form of the program, should have the following characteristics:
1. A flexible response to the state of the crime, the offender and the victim, which allows each case must be considered individually
2. Responses to crime that respects the dignity and equality of each person, builds understanding and promote social harmony through the healing of victims, offenders and the community.
3. An alternative in many cases to the formal criminal justice system and its impact on the stigmatization of offenders
4. An approach that can be used in conjunction with traditional criminal justice process and sanctions
5. An approach that combines solving and addressing the underlying causes of conflict issues
6. An approach that addresses the needs of victims and losses
7. An approach that encourages players to gain insight into the causes and effects of their behavior and take responsibility in a meaningful way
8. A flexible approach and variables that can be adapted to the circumstances, legal traditions, principles and philosophy underlying the national criminal justice system that has been set.
9. A suitable approach for dealing with various kinds of offenses and offenders, including many of the most serious violations
10. Responses to crime which is suitable for situations where young offenders are involved and which is an important goal of this intervention is to teach offenders a few values and new skills
11. A response that recognizes the role of the community as the main place to prevent and respond to crime and social disorder.
CONCLUSION
The setting of the victim in the sentencing process in Indonesia shows that setting the criminal law against the victim has not been a clear pattern can also be said that there has not been any justice especially for the victims of crime. Rather than privileging the law, professionals and the state, restorative resolutions more directed to the solution of justice, involving disadvantaged people, offenders and the affected communities to find solutions which promote repair, reconciliation and rebuilding relationships. Restorative justice seeks to build partnerships to reestablish mutual responsibility to respond constructively to fix errors within the community itself. Restorative approaches seek a balanced approach to the needs of an evil, victim and community through processes that preserve the safety and dignity of all parties. Application of the principle of restorative justice that depends on what the legal system adopted by a country. If the legal system does not require the application can not force the restorative justice. The principle of restorative justice is an option in the design of a country's legal system. In Indonesia alone does not adhere to principles of restorative justice but there are some nuances legislation the principle of restorative justice as in Law No. 11 of 2012 on the Criminal Justice System Child. Even if a country does not embrace it, but it is possible to apply the principles of restorative justice in order to provide fairness, certainty, and legal expediency.
REFERENCES

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Barb Toews. (2006). The Little Book Restorative Justice for People in Prison, USA:Rebuilding the Web of Relationships.
Daniel, W. Van Ness, Karen Heetderks Strong. (2010). Restoring Justice, An Introduction to Restorative Justice, New York: Mattehew Bender & Company, Inc.
David R Karp. (1964). The Little Book of Restorative Justice for Colleges and Universities, USA: Repairing Harm and Rebuilding Trust in Response to Student Misconduct.
Dwija Priyatno. (2000). Sistem Pelaksanaan Pidana Penjara di Indonesia, Bandung: Refika Aditama.
Eva Achjani Zulfa dan Indriyanto Seno Adji. (2011). Pergeseran Paradigma Pemidanaan, Bandung: Lubuk Agung.
Eriyantouw Wahid. (2009). Keadilan Restoratif dan Peradilan Konvensional Dalam Hukum Pidana, Jakarta: Universitas Trisakti.
Gerry Johnstone. (2001). A Restorative Justice Reader, Second Edition, London and New York: Routledge.
H. Parman Soeparman. (2007). Pengaturan Hak Mengajukan Upaya Hukum Peninjauan Kembali Dalam Perkara Pidana Bagi Korban Kejahatan, Bandung: Refika Aditama.
Ivo Aertsen, Tom Daems, and Luc Robert. (2012). Institutionalizing Restorative Justice, London and New York: Routledge.
John Rawls. (2011). A Theory of Justice, Teori Keadilan, Yogyakarta: Pustaka Pelajar.
Lilik Mulyadi. (2008). Bunga Rampai Hukum Pidana, Teoritis dan Praktik, Bandung: Alumni.
---------------. (2010). Kompilasi Hukum Pidana Dalam Perspektif Teoretis dan Praktik Peradilan, Bandung: Mandar Maju.
--------------. (2012). Bunga Rampai Hukum Pidana Umum dan Khusus, Bandung: Alumni.
---------------. (2007). Kapita Selekta Hukum Pidana, Kriminologi & Victimology, Jakarta: Djambatan.
Margaret Thorsborne & David Vinegrad. (2009). Restorative Justice, New York: Pocket Book: Phil Hailstone.
Mardjono Reksodiputro. (1997) Bunga Rampai Permasalahan Dalam Sistem Peradilan Pidana, Jakarta: Universitas Indonesia.
Ruslan Saleh. (1996). Pembinaan Citra Hukum dan Asas-Asas Hukum Nasional, Jakarta: Karya Dunia Fikri.
Roger Graef. (2002). Why Restorative Justice, Repairing the Harm Caused by Crime, London: Calauste Gulbenkian Foundation.
Susan L. Miller. (2011) After the Crime, New York and London: New York University Press.
Satjipto Rahardjo. (1982). Ilmu Hukum, Bandung: Alumni.
Syaiful Bakhri. (2010). Kebijakan Kriminal,Dalam Perspektif Pembaruan Sistem Peradilan Pidana Indonesia, Yogyakarta: Total Media.
Soerjono Soekanto. (1982). Kesadaran Hukum Masyarakat, Jakarta: Rajawali.

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