Ideal Judicial Pardon Decision Format in The Indonesia Criminal Justice System Based on Comparative Law

Abstract

The recognition of judicial pardon in the 2023 Criminal Code reflects a shift in Indonesia’s sentencing paradigm from retribution toward substantive justice grounded in proportionality and humanity; however, this provision has not been accompanied by a clear formulation of decision formats in criminal procedural law, resulting in a normative gap that may generate disparity and legal uncertainty. This research examines how judicial pardon is implemented in the Dutch criminal justice system and how an ideal decision format may be constructed for adoption in Indonesia. Employing a normative juridical method with statutory, conceptual, and comparative approaches, the analysis shows that under Article 9a of the Wetboek van Strafrecht, Dutch judges affirm the fulfillment of the elements of the offense and criminal responsibility while waiving punishment through explicit reasoning on proportionality, the social insignificance of the act, and the objectives of sentencing, demonstrating that judicial pardon does not eliminate guilt but serves as a rational limitation on penal power. Therefore, an ideal judicial pardon decision in Indonesia should retain the evidentiary structure of ordinary sentencing decisions, supplemented by specific considerations that systematically assess the necessity of punishment under Article 54 of the 2023 Criminal Code, and this study recommends that the Supreme Court formulate technical guidelines to ensure consistency, accountability, and harmonization between legal certainty and substantive justice in national criminal justice practice.

Keywords

• Judicial Pardon
• Sentencing
• Decision Format
• subsantive justice