The Draft Law on the Criminal Procedure Code, dated November 18, 2025 (hereinafter "RUU KUHAP 2025" or "The Draft"), signifies a monumental shift in the legal philosophy governing Indonesian criminal jurisprudence. For over four decades, the Indonesian criminal justice system has operated under Law No. 8 of 1981, a statute deeply rooted in the civil law tradition’s principle of legality (legaliteitsbeginsel), which mandates that every crime supported by sufficient evidence must be prosecuted to the fullest extent of the law. This rigid adherence has historically stripped law enforcement of the discretion necessary to manage judicial resources efficiently, leading to chronic prison overcrowding and a backlog of cases that often serve little public utility.
The RUU KUHAP 2025 explicitly pivots toward the principle of opportunity (opportuniteitsbeginsel) and utilitarianism. By embedding mechanisms such as Restorative Justice, Plea Bargaining, and Deferred Prosecution Agreements (DPA), the Draft acknowledges that the ultimate goal of criminal law is not merely retribution (vergelding), but restoration (herstel) and efficiency. This deconstruction analyzes the Draft's systematic dismantling of the mandatory prosecution model in favor of a diversified resolution track that prioritizes victim satisfaction, economic recovery, and corporate compliance over incarceration.
The following analysis deconstructs the mechanisms based on the statutory text provided in the Draft, categorizing them by legal basis, objective, and procedural nuances.
Table 1: Comparative Matrix of Settlement Mechanisms
| Feature | Restorative Justice (RJ) | Plea Bargain (Pengakuan Bersalah) | Deferred Prosecution Agreement (DPA) | Peace Fine (Denda Damai) |
|---|---|---|---|---|
| Statutory Basis | Arts. 1(21), 79–88 | Arts. 1(16), 78, 234 | Arts. 1(17), 328 | Arts. 65(i), 66, 71(2)(e-f) |
| Philosophical Basis | Corrective Justice; Victim-Centric. | Efficiency; Judicial Economy. | Corporate Compliance; Economic Stability. | Administrative/Fiscal Settlement. |
| Target Subject | Natural Persons (Individuals). | Natural Persons (Individuals). | Corporations (Legal Entities). | Economic Offenders (Tax/Customs). |
| Core Requirement | Consensus between Victim and Perpetrator. | Confession + First Offender + Restitution willingness. | Corporate admission + Remediation + Damages. | Payment of specific fine categories. |
| Procedural Stage | Investigation, Prosecution, Trial. | Prosecution (Pre-trial hearing). | Prosecution (Pre-indictment). | Prosecution. |
| Judicial Role | Validator: Issues a Determination (Penetapan) confirming settlement. | Gatekeeper: Vets voluntariness in Special Hearing; Issues Verdict. | Reviewer: Assesses proportionality and public interest. | N/A: Administrative termination. |
| Sentencing Implications | Termination of Prosecution (Case Closed). | Conviction with sentence capped at 2/3 of max. | Suspension of Prosecution (Dismissal upon compliance). | Termination of Prosecution. |
The Draft introduces rigorous procedural workflows to prevent the abuse of these new discretionary powers. Unlike the current ad-hoc regulations (Perpol 8/2021 or Perja 15/2020), the RUU KUHAP 2025 statutorily mandates judicial oversight at nearly every exit ramp from the standard criminal process.
The RJ mechanism is designed as a "dual-key" system requiring both victim consent and judicial validation.
This mechanism introduces a hybrid adversarial element into Indonesia's inquisitorial system.
Targeting corporate crime, this mechanism allows the state to discipline entities without destroying them.
The promulgation of the Draft Criminal Procedure Code (RUU KUHAP 2025) marks a watershed moment in the history of Indonesian law. Since 1981, the criminal justice system has been governed by a code that was revolutionary for its time in protecting human rights but has arguably become rigid and inefficient in the face of modern criminal complexities. The RUU KUHAP 2025 reflects a sophisticated synthesis of global best practices, borrowing elements from the adversarial common law tradition (Plea Bargaining, DPA) while maintaining the structural integrity of the civil law tradition.
This memorandum provides an exhaustive analysis of the non-trial resolution mechanisms introduced in the Draft. It argues that while these mechanisms offer profound opportunities for efficiency and justice, they introduce new strategic complexities regarding the timing of confessions, the role of victims, and the liability of corporations.
Article 1 item 21 of the RUU KUHAP 2025 defines Restorative Justice (RJ) as an approach to resolving criminal cases that involves the perpetrator, victim, their families, and other related parties to jointly seek a fair solution emphasizing the restoration of the original state (pemulihan keadaan semula), rather than retaliation.
This statutory definition is critical because it shifts the focus of the criminal process from the "State vs. Defendant" paradigm to a "Victim-Defendant" paradigm. The concept of "restoration" is not left abstract; Article 79(1) explicitly enumerates what constitutes restoration:
Insight: By codifying these specific outcomes, the Draft prevents the misuse of RJ as a mechanism for mere "transactional" justice where wealthy defendants simply pay off victims without addressing the harm. The inclusion of "forgiveness" (Art 79(1)(a)) as a distinct element suggests that financial compensation alone may be insufficient if the emotional or moral breach is not repaired.
Article 80 establishes the objective criteria for RJ eligibility, creating a clear demarcation between minor and major offenses:
Implications of the 5-Year Cap:
This threshold is the most significant constraint in the Draft. It effectively limits RJ to misdemeanors such as simple theft (Art. 362 KUHP), minor assault (Art. 351(1) KUHP), and negligence leading to injury. Serious felonies—robbery, serious assault, fraud involving large sums (often charged under articles with higher maximums)—are statutorily excluded from RJ, regardless of the victim's willingness to settle.
The Negative List (Article 82):
The Draft adopts a rigorous "Negative List" approach, explicitly forbidding RJ for crimes affecting the public interest, regardless of the sentence length. RJ is prohibited for:
Insight on Narcotics: The exception for narcotics users in Article 82(i) is a progressive health-oriented shift. While narcotics possession usually carries heavy sentences often exceeding 5 years, this specific exception implies that "users" are carved out from the general Article 80 cap, allowing prosecutors to divert addicts to rehabilitation via RJ mechanisms rather than prison, solving a major driver of overcrowding in Indonesian prisons.
One of the most aggressive provisions in the Draft is Article 79(3), which mandates that the settlement agreement (e.g., payment of damages) must be executed within 7 days.
Analysis: This timeline is exceedingly tight. For indigent defendants or complex damage assessments, 7 days may be insufficient to raise funds.
Strategic Implication: Defense counsel must have the settlement funds in escrow or immediately available before signing the consensus document. Failure to perform within 7 days results in the automatic reversion to formal processing (Art 79(6)), and the admission of the failed attempt is recorded in the case file, potentially prejudicing the defendant in the subsequent trial.
The RUU KUHAP 2025 introduces a layer of judicial oversight previously absent in police-level RJ.
Insight: This transforms the Judge into a gatekeeper of settlements. It prevents police or prosecutors from unilaterally closing cases under the guise of RJ to hide professional incompetence or corruption. The Court will likely review the "Consensus Agreement" to ensure it was voluntary and meets the statutory criteria of Art 80.
For Victims: The Draft empowers victims with a veto. Without "forgiveness" and agreement, RJ is legally impossible. This places victims in a strong negotiating position regarding compensation.
For Defendants: Early admission and restitution are incentivized. However, the risk of a failed RJ attempt (Art 79(6))—where the breach is recorded—means defendants should not propose RJ unless they are certain of their ability to pay.
Article 1(16) defines "Pengakuan Bersalah" (Plea Bargain) not merely as a confession, but as a formal mechanism where a defendant admits guilt and cooperates in exchange for a lighter sentence (imbalan keringanan hukuman). This explicitly introduces the transactional nature of plea bargaining, a concept historically alien to the Indonesian civil law tradition which seeks material truth.
Like RJ, Plea Bargaining is restricted to maintain public confidence in the justice system. It is available only if:
Analysis: The "5-year cap" aligns Plea Bargaining with the RJ threshold. This creates a systemic logic:
To prevent the abuse of plea bargaining (e.g., police torturing suspects into pleading guilty), the Draft erects significant procedural walls.
1. Mandatory Counsel (Art 78(3)):
A defendant cannot enter a plea bargain alone. They "must be accompanied by an Advocate." This is a non-waivable requirement for the validity of the plea, ensuring the defendant understands the waiver of rights.
2. The Special Hearing (Sidang Tertentu):
The plea is not handled administratively but in a specific court hearing before a Single Judge (Art 78(5)). This judge acts as an inquisitor into the validity of the plea.
3. The "Two Evidence" Rule (Art 78(12)):
Perhaps the most uniquely "Indonesian" feature of this plea bargain mechanism is Article 78(12). Even if the defendant pleads guilty, the Judge must be convinced by the plea supported by 2 (two) valid pieces of evidence.
Comparison: In the US, a guilty plea often waives the need for the state to produce evidence. In the RUU KUHAP 2025, the state must still have a prima facie case (e.g., Witness testimony + Forensics) in addition to the confession. This prevents the conviction of innocent individuals who plead guilty solely to end pre-trial detention.
Article 234(5) provides the mathematical certainty required for a plea bargain system to function. It states that for defendants utilizing the simplified procedure via confession, the sentence "shall not exceed 2/3 (two-thirds) of the maximum criminal penalty" charged.
Table 2: Sentencing Impact Analysis
| Crime Charged | Statutory Max | Plea Bargain Max Cap (2/3) | Potential Benefit |
|---|---|---|---|
| Theft (Art 362 KUHP) | 5 Years | 3.33 Years | Guaranteed reduction of 1.67 years from exposure. |
| Embezzlement (Art 372 KUHP) | 4 Years | 2.66 Years | Avoids risk of maximum sentence. |
| Minor Assault (Art 351(1) KUHP) | 2.6 Years | 1.7 Years | Significant reduction. |
Insight: This statutory cap is a hard limit on judicial discretion. It provides a powerful incentive for defendants to plead early, clearing judicial dockets of clear-cut cases.
Prosecuting corporations creates unique collateral damage: bankruptcy, job losses, and market instability. Recognizing this, Article 1(17) and Article 328 introduce the Deferred Prosecution Agreement (DPA), tailored specifically for corporate entities (korporasi).
Article 328 outlines a rigorous process that balances corporate interests with public accountability.
Step 1: Application and Negotiation
The process can be initiated by the Corporation (Suspect/Defendant) or the Prosecutor. The parties negotiate terms which must include (Art 328(12)):
Step 2: Judicial Hearing (Sidang Pemeriksaan)
Unlike some jurisdictions where DPA approval is administrative, Article 328(7) mandates a court hearing to validate the agreement.
Review Criteria (Art 328(8)): The Judge must evaluate:
Step 3: Suspension and Monitoring
If approved, the prosecution is formally suspended (ditunda). The Court retains authority to monitor compliance (Art 328(14)).
Dismissal (Art 328(13)): Upon successful completion of terms, the case is dismissed with a court order (penetapan). This avoids a criminal conviction record for the entity, preserving eligibility for public tenders (debarment avoidance).
Revival (Art 328(15)): Breach results in immediate resumption of prosecution. Crucially, the Draft implies that the admissions made during the DPA negotiation can be utilized, as the process resumes "without requiring additional approval."
The DPA mechanism fundamentally alters corporate defense strategy in Indonesia.
The RUU KUHAP 2025 redefines the judicial role in the pre-trial phase.
Settlement mechanisms are often driven by the desire to avoid detention. The Draft tightens detention rules to prevent coercion.
The Draft strengthens the state's ability to enforce economic sanctions, which is the backbone of the Denda Damai and Corporate DPA mechanisms.
Article 335 & 337: If a corporation or its manager fails to pay agreed fines/restitution, the Prosecutor can seize assets and auction them with the permission of the District Court Head, bypassing lengthy civil execution suits. This ensures that "Restorative Justice" translates into actual cash for victims or the state.
The RUU KUHAP 2025 represents a modernization of Indonesian criminal procedure that prioritizes outcome over process. It moves away from the rigid legality principle that clogged courts with minor offenses and destroyed corporations for the sins of a few employees.
For Defense Practitioners:
For Corporate Clients:
For the Judiciary and Prosecution:
The Draft imposes a heavy administrative burden. The 3-day deadlines for validation (Arts 84, 86) require rapid judicial response. The "Special Hearings" for Plea Bargains require a reallocation of judicial resources. Success will depend on the readiness of the infrastructure to handle these expedited tracks without compromising the 2-evidence safeguard.
In conclusion, the RUU KUHAP 2025 offers a sophisticated toolkit for dispute resolution that, if implemented correctly, will significantly reduce judicial backlogs and increase victim satisfaction. However, it requires a fundamental shift in mindset from all stakeholders—from adversarial combat to restorative cooperation.
To ensure clarity and ease of reference, the following table summarizes the key statutory provisions analyzed in this memorandum.
Table 3: Key Statutory Provisions Analysis
| Mechanism | Article(s) | Key Provision / Mandate |
|---|---|---|
| Plea Bargain | Art 78(1) | Eligibility: First offender, < 5 years, Restitution. |
| Art 78(3) | Mandatory Advocate: Defendant must be represented. | |
| Art 78(12) | Evidentiary Rule: Judge must still see 2 valid pieces of evidence. | |
| Art 234(5) | Sentence Cap: Max 2/3 of statutory maximum penalty. | |
| Restorative Justice | Art 79(3) | Deadline: Agreement terms must be fulfilled within 7 days. |
| Art 80 | Scope: Crimes < 5 years imprisonment or Fine Cat. III. | |
| Art 82 | Negative List: Excludes Corruption, Terrorism, Narcotics (except users). | |
| Art 84 | Oversight: Investigator must request Court Determination within 3 days. | |
| DPA | Art 328(1) | Purpose: Compliance, recovery, efficiency. |
| Art 328(2) | Scope: Limited to Corporations only. | |
| Art 328(15) | Breach: Prosecution resumes immediately. | |
| Peace Fine | Art 66 | Denda Damai: Mechanism for economic crimes; settled by fine payment. |
| Pre-Trial | Art 158 | Praperadilan: Expanded to cover unlawful termination of case. |
| Execution | Art 335 | Asset Seizure: Prosecutor may auction corporate assets for unpaid fines. |
While the primary analysis relies on the provided Draft, it is crucial to contextualize this against the existing legal framework often discussed in legal forums such as Hukumonline.
This Draft represents the culmination of these decades-long debates, solidifying distinct tracks for distinct types of offenders: restoration for the minor, negotiation for the corporate, and full prosecution for the serious felon.