Prosecutorial Discretion and Restorative Justice A Comparison of Indonesia and the Netherlands in Criminal Law

Abstract

The purpose of this study is to analyze and compare the application of prosecutorial discretion and restorative justice in the Indonesian and Dutch criminal justice systems, as well as to assess the effectiveness of both mechanisms in realizing legal certainty, protecting human rights, and reducing dependence on imprisonment. This study also aims to formulate normative recommendations for the reform of Indonesian criminal procedure law based on best practices in the Netherlands. The method used is a normative legal research method with a comparative legal approach. The analysis was conducted on legislation, particularly Law No. 1 of 2023 concerning the Criminal Code and the Dutch Wetboek van Strafvordering, as well as legal doctrines and prosecution policies related to prosecutorial discretion and restorative justice. This study focuses on law as a written norm (law in books), not on empirical practice. The results of the study show that the Indonesian Criminal Code has recognized the principles of rehabilitation and restorative justice normatively, but this has not been supported by adequate technical regulations regarding mediator qualifications, criminal mediation procedures, and accreditation systems, thus potentially causing legal uncertainty. In contrast, the Netherlands, through Article 51h of the Wetboek van Strafvordering, provides a clear and structured legal basis for criminal mediation from the investigation stage to the trial, which allows for the consistent and controlled application of prosecutorial discretion. The findings show that Indonesia's orientation towards imprisonment contributes to the overcapacity of correctional institutions, while the Netherlands has succeeded in reducing the use of imprisonment through structured prosecutorial discretion and the application of non-custodial sanctions. This study recommends comprehensive reform of Indonesia's criminal procedure law in order to institutionalize restorative justice effectively and sustainably.