COMPARISON OF THE REGULATIONS ON RECIDIVIST JUVENILES IN INDONESIA, NORWAY, AND THAILAND

As the future leaders of the nation, children must obtain protection from all sides. This protection is also needed when children become recidivists. The Indonesian Criminal Code states that for recidivists, the punishment in a repeat of criminal action will be added by a third. Surely, this will bring much loss to the future of the children who repeated actions of criminality (recidivist juveniles). This research is aimed to analyze and to describe how the regulations on repeated criminal action are for juveniles in Indonesia, Norway, and Thailand. This is a juridicial-normative research, with constitutional and comparison approaches. Provisions of the Norway Criminal Code Article 61 and provisions of the Thailand Criminal Code Article 94 have some similarities. It is stated that the repeated action of crime is only given to those who repeated the criminal action who are above 18 and 17 years of age.

Protection for children is one of the nation's responsibilities. This is explained in Article 28B 3 of the Republic of Indonesia's 1945 Constitution, which states that every child has the right to survive and to receive protection without discrimination.
Thus, there should not be any stigmatization or labelling in handling children who are conflicting with the law. 4 There should be enough guidance or rehabilitiation for them so that they may keep their dreams and they may become beneficial people for the nation in the future. 5 Delinquent juveniles 6 basically do not entirely understand what they were doing. This is because in the adolescent phase, children experience a transition. They experience inner conflicts which are added with anti-social behavior. It causes children to lose self-control, which become boomerangs for themselves. This will become a dangerous threat if it is left alone without proper surveillance from all sides. The symptoms of children's delinquency will lead to criminal actions. 7 Theoretically, the punishment of imprisonment does not only rip one of his/her freedom. Yet, it also causes negative impacts. Further, prisoners may become more evil post-freedom from the prison. Muladi argues that the punishment of imprisonment may cause dehumanization. There is a higher risk to be enprisoned again. It also causes the stigma or label of 'evil'. Experience in the Correctional Institution is very dangerous, and it affects the prisoners. It makes it difficult for the prisoners to comply with the law after having been freed from the Correctional Institution. Even, The American Correctional Association on 1959 at last states that the punishment of imprisonment which is only done based on the view of imprisonment will actually create more criminals instead of preventing criminality. 8 The best interests of the delinquent juveniles should be the benchmark in giving criminal punishments. The punishments given to the the delinquent juveniles create their future. An unwise verdict of imprisonment sanction for the juvenile 3 Pasal 28B UUD 1945: Setiap anak berhak atas kelangsungan hidup, tumbuh, dan berkembang serta berhak atas perlindungan dari kekerasan dan diskriminasi. 4 Anak yang berkonflik dengan hukum selanjutnya akan disebut dengan ABH 5 M. Nasir Djamil, Anak Bukan Untuk Dihukum, (Jakarta: Sinar Grafika, 2013), p. 4. 6 Juvenile artinya young, Anak-Anak, Anak muda, ciri karakteristik pada masa muda sifat-sifat khas pada periode remaja, sedangkan delinquency artinya doing wrong, terabaikan,mengabaikan yang kemudian diperluas artinya menjadi jahat,a-sosial, kriminal, pelanggar aturan, pembuat ribut, pengacau, dan penteror. 7  literature. It uses a constitutional approach and a comparison approach. All series of this reseach is aimed to collect legal sources, which are then processed and linked to legal concepts. The results obtained will be written in the form of juridicial thoughts.
The data of this research is obtained through primary legal sources which is the constitution, and secondary legal sources which are text books written by experts of law. The basic philosophy of a more severe imprisonment for repeated criminal actions are based on these three factors: 10 1) The perpetrator has carried out criminal action more than once;

The Regulation on Recidivists in the Indonesian Criminal Code
2) The perpetrator has been given sanctions by the state for the first criminal action; and 3) That sanction of imprisonment has been carried out by that person.
The first increased punishment factor is the same as the increasing severity factor in concurrence. The difference between that and concurrency is on the second and the third factors. The most important factors in increased severity are the second and the third factors. The verdict of imprisonment for a criminal action may be regarded as the state's warning against a wrong action. By carrying out criminal actions for the second time, it may be said that the perpetrator did not obey that warning. It shows that he/she has bad character. The warning of imprisonment was not enough to stop him/her from undergoing criminal actions. The sanction of imprisonment given is not only a reflection of the perpetrator's quality and quantity of criminal action (basis of retaliation), yet it is part of a therapy determined by the judge in order to improve the perpetrator's character. Rehabilitation for recidivists and those who have gone through imprisonment must be longer and more severe.
This is the basis of why the imprisonment sanction for repeated crime is more severe. 11 The severity of sanction is added by a third of the maximum threat from the criminal action the perpetrator carried out as determined  Pasal 369,372,374,375,378,380,[381][382][383][385][386][387][388]397,399,400,402,415,417,425,432 ayat penghabisan,452,466,480 dan 481, begitupun pidana penjara selama waktu tertentu yang dijatuhkan menurut Pasal 204 ayat kedua, 365 ayat keempat dan 368 ayat kedua sepanjang di situ ditunjuk kepada ayat keempat pasal 365, dapat ditambahkan dengan sepertiga, jika yang bersalah ketika melakukan kejahatan, belum lewat lima tahun, sejak 1. That person has gone through all or some of the imprisonment sanctions given by the judge, or he/she has been freed from carrying out the imprisonment sanction, or in the time of undergoing the criminal action for the second time, the state's right to undergo the imprisonment sanction has expired.
2. The perpetrator carried out the repeated criminal action not less than five years since he/she gone through some or all of the imprisonment sanctions given for verdict.
In the first requirement, it is said that there are four possibilities: 1. He/she has gone through all of the imprisonment sanctions given for verdict; 2. He/she has gone through some of the imprisonment sanctions given for verdict; 3. He/she is cancelled from having to go through imprisonment; or 4. The state's right to punish him/her has not expired.

1) General Recidive
If someone carried out a criminal action which has been given punishment, and then he/she carried out another criminal action in all forms, thus he/she will receive an increased severity of punishment. 17

2) Speciale Recidive
If someone carried out a criminal action which has been punished, and then he/she carried out the same (similar) criminal action, thus he/she will receive an increased severity of punishment. 18

Regulation on Repeated Criminal Actions (Recidive) in the Cosntitution
Another difference found is the explanation of Article 7 paragraph (2)  System's aim.

Regulations on Repeated Criminal Action (Recidivism) in Norway and in Thailand
The requirements of repeated criminal actions (recidives) are as follows:

Norwegian Criminal Code
Article 61

Thailand Criminal Code
Article 94 of Thailand's Criminal Code states that the regulation on increased punishment in the case of repeated criminal actions (recidivism) does not apply for:

1) Accidental criminal actions;
2) Light criminal actions; 3) The criminal action perpetrator is under 17 years of age (both at the time of carrying out the previous or the next criminal actions).
From the comparison of the regulations on repeated criminal actions (recidivism) in Indonesia, Norway, and Thailand, there are some differences regarding the basis for increased punishment. The differences between these regulations are written as follows:  (2)  diversion. Surely, with the existence of such requirement, it will be hard for juvenile delinquents who carried out a repeat of criminal action. This is because, if a child carried out a repeat of a light criminal action and it has been solved through diversion, then the child repeated the action of light criminality again, thus that child can no longer obtain diversion. Not only that, yet that action will become the basis for increasing the punishment of that child.
Bentham states that benefit is the main aim of law. This benefit is defined as happiness. Thus, the basis of the good, the bad, the justice, and the unjust in law depends on whether that law brings happiness to human beings or not. Because of that, the role of law is to bring human beings towards happiness in the majority of society. 35 Reflecting from the regulations on repeated criminal action (recidivism) in Norway and in Thailand, the repeat of criminal action should not be the basis of increased punishment for children. With the basis of Bentham's opinion that the law must bring benefits, there should be a change in the regulations on repeated criminal action for juveniles which reflect the benefit and protection for those juveniles.