JURIDICAL STUDIES AGAINST DIVERSION IN CRIMINAL JUSTICE SYSTEM

The diversion provisions in the juvenile justice system law whether it has prevented children from the negative effects of the Criminal Justice System.The method of approach is the statutory approach and the comparative approach. Primary, secondary and tertiary legal materials obtained by the author will be analyzed using the method of systematic interpretation, namely interpretation by looking at the relationship between the rules in an interdependent law. Diversion is a settlement of child cases that are carried out outside formal justice with the aim of preventing children from stigmatizing children who are dealing with the law must be in accordance with the purpose of diversion in The Beijing Rules. Whereas in Indonesia, the diversion provisions in the Criminal Justice System Act of the Child are still included in the criminal justice system by giving stronger stigmatization to children who are in conflict with the law and so it is not in accordance with the purpose of diversion in The Beijing Rules. So the diversion provisions in the Child Criminal Justice System Law do not yet reflect the principle of child protection as mandated by the Child Protection Act and the Child Criminal Justice System Law.


A. INTRODUCTION
In Indonesia's positive law, protection of children's rights can be found in various laws and regulations, as stipulated in Presidential Decree No. Rights, and Law Number 11 of 2012 concerning the Criminal Justice System for Children. Development of existing legal systems in Indonesia discussing children's problems who are dealing with the law with presenting the concept of diversion as an embodiment from restorative justice. 2 In the era of globalization, the number of crimes committed by children, for example, is increasing every year, even though Indonesian regulations have governed it. Steve Allen stated that more than 4,000 children in Indonesia are prosecuted each year for minor crimes such as theft. Not surprisingly, then, nine out of ten children were put in prison or detention centers. For example, Throughout 2000, recorded in police criminal statistics were more or less than 11,344 children suspected of being perpetrators of a crime. 3 The principle of child protection is primarily about the principle of nondiscrimination which prioritizes the best interests of the child and the right to life, survival, and development so that it is necessary to respect the opinion of children. 4 as far as possible be avoided from the criminal justice process. Based on these thoughts, a concept called diversion was born, which in Indonesian terms is called diversion. 5 The transfer of the juvenile criminal justice process to keep the criminal justice system from hurting harming the child. such as labeling as a result of a guilty statement or conviction. the purpose of this diversion is to reduce the number of children who are arrested, detained and imprisoned and eliminate the evil stigma / stamp and return the child to the community. Implementation of diversion is motivated by the desire to avoid negative effects on the soul and development of children by their involvement with the criminal justice system. This diversion or diversion idea is the best solution that can be used as a formula in the settlement of several cases involving children as criminals. With a non-policy policy step for child offenders, the handling of which is diverted outside the path of the juvenile criminal justice system, through short-term coaching or other methods that are civil or administrative. 6 Diversi gets a positive response from the Government. The government has the power to make and apply laws as well as legislators, in the case of the juvenile criminal justice system. So that the House of Representatives, which functions as a legislative body, gave birth to Law number 11 of 2012 concerning the Juvenile Justice System instead of law number 3 of 1997 concerning juvenile justice, which was legally passed on July 3, 2012. Legislation products The child justice system is a step forward because the rights of children facing the law are more secure. Where the law of the juvenile criminal justice system upholds restorative justice.
From this, the implementation of diversion has been carried out with the concept of restorative justice in which the settlement involves victims and perpetrators as well as the parties involved in the implementation. Related to crimes committed by minors, we all agree that the perpetrators must still be processed by following with applicable law, by following the principle of equality before the law, but if you look at the framework of child protection it would be unwise if the treatment of minors is equal to treatment of adults because The Convention on the Rights of the Child regulates children's rights in detail. The focus of the problem of this thesis is regarding the arrangements in the Juvenile Justice System relating to diversion. In the Convention on the Rights of the Child, it is intended to protect the principles of child protection, especially in Article 40, that the Convention on the Rights of the Child does not specifically provide for diversion, but Article 40 emphasizes the possibility of the settlement of children carried out outside the trial lines set out in Article 40 paragraph 3 letters b.
Article 40 paragraph 3 letter b of the child convention can provide opportunities in the settlement of naughty children without having to go through a legal process as long as human rights and legal safeguards are fully respected. 7 Paragraph 3 letter b with the provisions on the settlement of juvenile cases outside the formal justice route by looking at the best interests of the child.
The policy actions are referred to as diversion as stated in rules 11 and 17.14 of the SMRJJ / The Beijing Rules. The diversion act is a mechanism that allows in handling or solving the problem of child offenders by not taking the formal path in the judicial process towards other social service processes. The application of diversion at all these levels will greatly reduce the negative impact of children's involvement in the justice process. 8 The provisions in the Beijing Rules that in the criminal justice system for children must prioritize the best interests of the welfare of children and guarantee their rights and children should be kept as far away from the criminal justice system as possible. the principle of legal certainty and undermines the principle equality before the law, which if it depends on the will of the victim allows the diversion process will not be carried out which ultimately the child must undergo a formal justice process.

Relationship of Diversity and Restorative Justice
Diversity and Restorative Justice are the basis for legal reform in the implementation of the juvenile criminal justice system, which can be seen in Law Number 11 of 2012 concerning the Juvenile Criminal System, which aims to prevent child offenders from punishment or punishment. The provision of diversion and restorative justice in its implementation involves a third party in resolving problems between the child who committed it and the child who was a victim in the crime, involving each of their families, as well as other parties, with the aim of the case settlement process being pursued so that the child the perpetrators of criminal offenses are far from the criminal process against the offenders. This provision is by following the Convention on the Rights of the Child and the Beijing rules which emphasize that efforts are diversified in the juvenile justice system. This is useful to keep away from settlement with the juvenile criminal justice system which tends to hurt child development.
Restorative justice approaches provide opportunities and possibilities for victims of crime to obtain reparations, a sense of security, enable actors to understand the causes and consequences of their behavior and take responsibility in a meaningful way and enable communities to understand the main causes of crime, to advance the welfare of the community and prevent crime. Restorative justice presents a series of flexible actions that can be adapted to the existing criminal justice system and are complemented by taking into account legal, social and cultural conditions. The use of restorative justice will not prejudice the right of the state to prosecute suspected criminal acts. 20 Therefore, restorative justice or consensus-based justice or justice is a Diversi process, where all parties involved in a criminal offense must jointly overcome the problem and create an obligation to make things better by involving victims, children and the community in finding a solution to improve, reconcile, and reassure that is not based on retaliation. 21 Restorative justice or consensus-based justice in Indonesian indigenous peoples has become a tradition among others in the Papuan, Aceh, Bali, West Sumatra, and Lampung traditional law. As in Bali through the Pakraman traditional village which is applied which is another dimension identical to the settlement of cases outside the court through the mediation of penalties. 22 20 Muladi,  have not yet matured for committing acts before the age of 16, the judge may determine: a) order that the guilty be returned to his parents, guardians or their carers without any crime; or b) order that the guilty be handed over to the government without any criminal if the act is a crime or one of the violations based on articles 489, 490,492, 496, 497,503-505, 514, 517, 519, 526, 531, 532, 536 and 540 and it has not yet passed two years since it was found guilty of a crime or one of the violations above and the verdict has become permanent; impose penalties on the guilty.
The settlement of the criminal act of the child through mediation was carried out before the birth of the Law on the Criminal Justice System for Children but does not explicitly regulate restorative justice. Likewise, the police as law enforcement officers based on article 18 of Law Number 2 of 2002 concerning the Police, are determined (1) For the public interest of the Republic of Indonesia state police officers in carrying out their duties and authorities, they can act according to their judgment.
(2) The implementation of the provisions referred to in paragraph (1) can only be carried out in a very necessary condition by observing the laws and regulations, as well as the code of ethics of the police profession. The explanation of article 18 paragraph (1) is meant by "acting according to his judgment" The implementation of this provision is known as police discretion.
Then with the birth of the Law on the Child Criminal Justice System restorative justice and diversion are regulated in a strictly, namely in more detail the diversion is regulated in Chapter II articles 6 through Article 15 of Law Number 11 of 2012 and the procedures and stages of diversion are regulated in the Supreme Court Regulations Republic of Indonesia Number 4 of 2014 concerning Guidelines for Implementing Diversity in the Criminal Justice System for Children. Diversion aims (Article 6 paragraphs (1 & 2)) to 1) achieve peace between victims and children, 2) resolve cases of children outside the judicial process, 3) prevent children from deprivation of liberty, 4) encourage people to participate, and 5) instill a sense of responsibility to the child. At the level of investigation, prosecution, and examination of cases of children in the district court must be pursued Diversi. Diversion is carried out if a crime is committed (Article 7 paragraphs (1 & 2): 1) threatened with imprisonment of less than 7 (seven) years (article 7 paragraph (2) letters a) and 2) does not constitute a repeat of the criminal act (article 7 paragraph (2) letter b). The diversion process (article 8) is carried out through deliberations involving children and their parents/guardians, victims and/or guardian parents, social advisers, and professional social workers based on a restorative justice approach (article 8 paragraph (1)) in case it is needed, deliberation can involve social welfare workers, and/or the community (article, 8 paragraph (2)). The diversion process must pay attention to : 1) the interests of the victim; 2) children's welfare and responsibilities; 3). avoidance of negative stigma; 4). or LPKS no later than 3 (three) months; or 4) retaliation avoidance; 5.) community harmony; and 6) propriety, decency, and public order. In carrying out the diversion of investigators, public prosecutors, and judges must consider (articles 9 (1 & 2): 1) categories of criminal acts (Article 9 (1) letter a), 2) the age of the child (Article 9 paragraph (1) letter b), 3) results of community research from BAPA; and 4) support of family and community environment.
Continuing diversity agreement (agreement between parties involving children and parents/guardians, victims and/or parents/guardians, community counselors, professional social workers, representatives and other parties involved) to resolve criminal offenses in the form of violations, minor criminal offenses, criminal offenses without victims, or the value of the loss of the victim not more than the value of the minimum wage of the local province as referred to in article 9 paragraph (2) above can be carried out by the investigator together with the offender and/or his family, social counselor, and can involve community leaders.
The diversion agreement is carried out by the investigator on the recommendation of the social adviser to take the form (Article 10 paragraph (1 & 2): 1) to recover damages in the event of a victim; 2) medical and psychosocial rehabilitation; 3) Submission back to parents/guardians; 4) participation in education or training in educational institutions or LPKS (Social Welfare Organization) for a maximum of 3 (three) months; or 5) community service for a maximum of 3 (three) months. Forms of an agreement are diversified, including (article 11): 1) peace with or without compensation; 2) submission back to parents/guardians; 3) participation in education or training in educational institutions or victims and witness protection agencies no later than 3 (three) months; or 4) community servants.
The juvenile criminal justice process is continued in case (Article 13): a. the diversion process did not produce an agreement; or b. the diversion agreement was not implemented.
Article 14 (1) oversight of the diversion process and implementation of the agreements resulting from the direct supervisor of the official responsible at each level of examination.
(2) as long as the diversion process takes place until the diversion agreement is implemented, the social adviser is required to provide assistance, guidance, and supervision. (3) (1). (4) The responsible official as referred to in paragraph (3) must follow up the report within a maximum period of 7 (seven) days. Thus the existence of this Law will prevent children from treatment that can harm the development of children who are dealing with the law or the criminal justice system of children. Therefore, future criminal acts of children can be resolved not brought to the criminal court, but resolved in a restorative court where problems are resolved jointly between visible children, family, and other relevant parties facilitated by officers who are oriented towards child protection. In addition to supporting the existence of restorative justice as a form of resolution of the crime of the child, the requirements of the restorative justice approach are needed, namely: 23 a) In handling cases of children as perpetrators of crime, it should always pay attention to the age of the offender, the younger the age of the offender the more important it is to settle using the restorative justice approach. The settlement with the restorative justice approach will be effective if the child recognizes the act and regrets it. The Settlement with a restorative justice approach must consider the condition of the child when committing a crime. If the motivating factor for a child to commit a crime is beyond the control of the child deliberations involving the perpetrators 'families, victims' families and community / religious leaders, facilitated by a facilitator from a neutral party to obtain agreement from both parties. f) Mechanisms for handling with restorative justice approaches : 1) Investigators, public prosecutors, and judges in resolving the case of children with a restorative justice approach must consider: categories of crime, age of the child, the results of community research from the community hall, and family and community environmental support.
2) The stages in deliberations: the stage of information gathering, the consideration of family prices, negotiations, and agreements.
The results of the restorative justice agreement will produce several alternatives including : 24 a) Peace with or without compensation; b) Submission back to parents / guardians; c) Participation in education or training to educational institutions, social welfare implementing institutions or social welfare institutions; or community service. Restorative justice decisions included in a child's case file must be considered by prosecutors when making demands and by judges when making decisions. The case register of children with the completion of a restorative justice approach to the police, prosecutors, courts, and correctional institutions was made specifically.

C. CONCLUSION
Diversion is a settlement of cases of children that are carried out outside formal justice with the aim of preventing children from stigmatizing children who are dealing with the law must be in accordance with the purpose of diversion in The