Judicial pardon as perfection of the implementation of legality principle in sentencing

Abstract

For more than 75 years of enactment of the Dutch Criminal Code (KUHP), the legality principle contained in Article 1 Paragraph (1) of the Criminal Code is applied rigidly in Indonesia. This rigidity is now perfected with the model of the Judicial Pardon which can be imposed after examination and proof that leads to the conclusion that the defendant is legally and convincingly proven guilty of committing the crime charged by the Public Prosecutor. However, because there are several basic considerations as guidelines for sentencing, namely the lightness of the act, the personal circumstances of the perpetrator, the circumstances at the time of the commission of the crime, the aftermath, and incapacity that can be forgiven, as well as aspects of humanity and justice, grant judges the authority not to impose a crime or impose action against the defendant, so that the decision model perfects the principle of legality in modern sentencing, and is expected to solve the problem of the excess number of inmates from prisons. This research was conducted using the normative legal research (qualitative legal research) method by conducting a juridical study of data sources originating from the legal principles contained in the Criminal Code of several countries. This research is expected to find clearer arrangements and formulations of dictum decisions for fair legal certainty.