Indonesia has recently strengthened its criminal justice framework through Supreme Court Regulation Number 3 of 2026 on Judicial Pardon Decisions (“Perma 3/2026”), which was officially promulgated on 9 July 2026. Perma 3/2026 marks a significant development in Indonesia’s sentencing framework by operationalizing judicial pardon, allowing judges, in defined circumstances, to decline to impose punishment in the interests of justice, humanity, and proportionality.
Under Indonesia’s previous criminal law regime, judges generally had limited flexibility once the constituent elements of a criminal offense had been fulfilled. Consequently, even minor offenses or acts committed under compelling personal circumstances could still result in criminal punishment despite the absence of significant public harm. Perma No. 3 of 2026 addresses this limitation by establishing a framework for pemaafan hakim (rechterlijk pardon), allowing courts to refrain from imposing a criminal sentence or measure while preserving the finding of guilt.
The key provisions of PERMA No. 3 of 2026 are summarized below.
- Judicial Pardon and Its Scope
Under Article 1 (4) of Perma 3/2026, a Judicial Pardon is rendered when a judge declares the defendant legally and convincingly guilty, yet refrains from imposing any criminal punishment or measures.[1]
Article 4 further provides that Judicial Pardon may apply to criminal offenses under the Criminal Code and sectoral criminal laws, as well as juvenile criminal cases, but does not apply to corporate criminal cases.
- Requirements and Considerations for Judicial Pardon
Article 5 sets out the main considerations for granting Judicial Pardon, including the the minor nature of the conduct, the offender’s personal circumstances, and the circumstances at the time and after the offense.
Objective Factors
Article 5 (3) identifies factors for determining the minor nature of the conduct. These include offenses classified under the Criminal Code as minor offenses, offenses punishable by no more than one year of imprisonment or a fine not exceeding Category III, offenses causing only minor physical or psychological harm that does not interfere with the victim’s activities, and complaint-based offenses (delik aduan).
Personal Circumstances
Article 5 (4) permits the Court to consider the offender’s personal circumstances, including whether the offense was committed to meet urgent subsistence needs of the offender, a child, or dependent family members; the offender’s mental and intellectual background and ability to assess whether to engage in the conduct; and whether the offense resulted from negligence (culpa).
Circumstances at and after the Offense
Article 5 (5) permits the Court to consider circumstances existing at the time of and following the offense, including circumstances that limited the offender’s rational choices, whether the offense was triggered by the victim’s conduct, an apology by the defendant, forgiveness by the victim, efforts to remedy the harm caused by the offense, and compliance with applicable customary sanctions.
Importantly, Article 5 (7) provides that these considerations do not qualify as grounds of justification or excuse that would eliminate punishment. Judicial Pardon instead permits the Court, after finding the defendant guilty, to decline to impose a criminal sentence or measure.
- Exclusions from Judicial Pardon
Article 6 excludes Judicial Pardon for offenses that are ineligible for restorative justice mechanisms, offenses involving an imbalance of power between the victim and the defendant, cases involving recidivism or concurrence of offenses, and offenses against decency, except complaint-based offenses against decency.
- Judicial Pardon Decision
Articles 7 through 10 govern the considerations, form, and minimum contents of a Judicial Pardon decision. The decision must, among other things, state the defendant’s guilt and the legal grounds for the pardon, confirm that no criminal sentence or measure is imposed, and, if the defendant is detained, order the defendant’s immediate release.
- Legal Remedies
Article 11 provides that Judicial Pardon decisions rendered in ordinary or summary proceedings may be appealed to the appellate court in accordance with applicable criminal procedure. Judicial Pardon decisions rendered in expedited proceedings are decided at the first and final instance.
A Judicial Pardon decision itself is not subject to cassation before the Supreme Court. Article 12 (3), however, permits cassation where an appellate court reverses a Judicial Pardon and replaces it with either a judgment imposing a criminal sentence or a judgment of release from all legal charges (putusan lepas).
Judicial Pardon in Practice
In Marisa District Court Decision No. 37/Pid.B/2026/PN Mar dated 14 July 2026, the defendant was found guilty of assault arising from an incident in which the victim sustained injuries to his hands and feet. The Court noted that the injuries were capable of healing without permanent disability and also considered the circumstances surrounding the incident. During the proceedings, the defendant and the victim reached a settlement, under which the defendant admitted his wrongdoing, apologized, and provided compensation, while the victim forgave the defendant and requested leniency.[2]
In applying Article 54 (2) of the Criminal Code and Perma 3/2026, the Court considered the limited impact of the offense on the victim together with the restoration achieved between the parties, including the apology, forgiveness, and compensation. The Court concluded that the purpose of sentencing had been achieved through the restorative process and therefore, while maintaining the finding of guilt, the Court imposed neither punishment nor measures and ordered the defendant’s release from detention.
Comparative Perspective
Indonesia’s approach also reflects developments observed in several foreign jurisdictions. In England and Wales, Sections 79 and 80 of the Sentencing Act 2020 provide for absolute and conditional discharge. In either case, an offender has been convicted, but the court may discharge the offender where it considers punishment inexpedient in light of the circumstances, including the nature of the offence and the character of the offender. A conditional discharge requires the offender to commit no further offence during a specified period of up to three years.
In the US as a comparison, in Cuellar v. State, 70 S.W.3d 815 (Tex. Crim. App. 2002), the Texas Court of Criminal Appeals recognized a statutory form of “judicial clemency” available in the trial court’s discretion following successful completion of community supervision. The court held that, where the trial court had set aside the defendant’s prior conviction and dismissed the indictment pursuant to the governing statute, that conviction could no longer serve as the predicate felony for a subsequent felon-in-possession prosecution..
Among civil-law jurisdictions, the Netherlands provides for a form of judicial pardon (rechterlijk pardon) through Article 9a of the Dutch Criminal Code. Article 9a permits a court, having regard to the minor nature of the offense, the offender’s personality, or the circumstances of or following the offense, to determine in its judgment that no punishment or measure will be imposed.
The application of Article 9a is illustrated by Gerechtshof ’s-Hertogenbosch, 26 January 2024, ECLI:NL:GHSHE:2024:189. The court found the offense proved and punishable and the defendant punishable, but nevertheless declined to impose a punishment or measure. In doing so, the court relied in particular on the substantial passage of time, an exceptional violation of the reasonable-time requirement, the defendant’s weighty personal circumstances, three days of pre-trial detention, and the fact that she had not been permitted to notify a person of her choice of that detention. The court concluded that imposing punishment would no longer serve a reasonable purpose.
Application of Article 9a also does not preclude a compensation measure under Article 36f. In Hoge Raad, 3 November 2015, ECLI:NL:HR:2015:3203, the Dutch Supreme Court held that such a measure may be imposed notwithstanding a conviction without punishment under Article 9a.
In light of the above, PERMA No. 3 of 2026 represents a significant development in Indonesia’s criminal sentencing framework by giving judges structured discretion to reach proportionate outcomes while maintaining legal certainty. In cases satisfying the regulation’s prescribed requirements and limitations, a court may decline to impose a criminal sentence or measure while preserving the finding of guilt and the determination that all elements of the offense have been established.
Written by: Divna Amanda, and Muhammad Abrori
Edited by: R. Bayu Perdana
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[1] Ibid, art 1(4)
[2] Putusan Pengadilan Negeri Marisa No. 37/Pid.B/2026/PN Mar
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