Restorative justice has been actively incorporated into domestic criminal legal systems globally, including Indonesia. Indonesia's legal system has been aiming to transform its criminal justice approach from retributive to restorative. However, there are still some notes on its implementation which could be studied in deeper sense by, among others, considering and contemplating on how the other countries implement such approach in their criminal justice systems as a parameter to see Indonesia's milestone in achieving the spirit of restorative justice.

1. Legal Brief
Overview of the Implementation of
Restorative Justice in Indonesia’s
Criminal Justice System

2. Why Do We Need Restorative Justice? Restorative Justice Key Points
The implementation of the Resolution by the Member
States – subject to national law – may be applied at
any stage of the criminal justice system.
Restorative Process
Restorative processes should be used only where there is
sufficient evidence to charge the offender and with the free
and voluntary consent of the victim and the offender, in which
such consent can always be withdrawn during the process.
ECOSOC Resolution 2002/12 on Basic Principles on the
Use of Restorative Justice Programmes in Criminal Matters
The victim and the offender should
normally agree on the basic facts of a
case as the basis for their participation
in a restorative process.
1
The disparities and cultural differences
between the parties shall be taken into
consideration in referring a case to,
and in conducting, a restorative
process.
2
The guidelines and standards made by Member States on
restorative justice shall respect the principles as stated in
ECOSOC Resolution 2002/12, which are advised to be
accommodated in the following provisions:
(a) The conditions for the referral of cases to restorative justice
programmes;
(b) The handling of cases following a restorative process;
(c) The qualifications, training and assessment of facilitators;
(d) The administration of restorative justice programmes;
(e) Standards of competence and rules of conduct governing the
operation of restorative justice programmes.
Neither the victim nor the offender
should be coerced, or induced by
unfair means, to participate in
restorative processes or to accept
restorative outcomes.
3
The results of agreements arising out
of restorative justice programmes
should, where appropriate, be
judicially supervised or incorporated
into judicial decisions or judgements
4
Restorative justice refers to an approach in handling criminal case
which is conducted by involving all parties, including but not limited
to the victim, the offender, or related parties, with the process and
aim that prioritizes recovery instead of focusing only on
administering punishment.
The term ‘Restorative Justice’ was first stated by Albert Eglash in
his book titled, “Restitution in Criminal Justice: A Critical
Assessment of Sanctions” (1977), by distinguishing three types of
criminal justice, namely, retributive, distributive and restorative.
A H R P L e g a l B r i e f
Overview of Restorative Justice Approach

3. right-to build
right-to cultivate
• Programmes: HALT (The Alternative) for juvenile and
Perspectief Herstelbemiddeling.
• Regulation: Article 51H of Criminal Procedural Code, as
influenced by the EU Victim’s Directive 2012.
• Mechanism applied:
• obligation for the police and the public prosecutor to
inform victims and offenders about the possibility of
mediation
• any agreement reached should be taken into
consideration by the judge when imposing a sanction
or measure.
• Programmes: Youth and Adult Conferencing, Victim-
offender Mediation, Circle sentencing (Indigenous Court).
• Exception to Youth and Adult Conferencing: varied from
states but predominantly excluding but not limited to for
offences in sexual assault, drug & traffic offences, homicide
offences, murder, and terrorism.
• Exception to Victim-offender Mediation: varied from
states but predominantly excluding serious offences and
sexual assault.
• Application of Circle Sentencing: to provide a culturally
appropriate process in which indigenous offenders and their
communities can participate.
• Programmes: Comprehensive Juvenile Intervention Program
(CJIP).
• Institutions: Parole and Probation Administration, Police
(minor offences: vandalism and theft), BJS (public disturbance,
threats, defamation, land dispute), Indigenous Court [racial
• dispute (33/35 in 2002-2007 | 80% in 2003 to 89% in 2007)],
and district court.
• Regulations: Juvenile Justice and Welfare Act 2006 and
Barangay Justice System (BJS), Juvenile Justice and Welfare
Act 2006.
• Excluded offences: rape and other serious crime.
• Programmes: Circles of Support and Accountability, Peace-
making Circles, Healing Circles, Sentencing Circles,
Community-assisted hearings, Community Conferencing,
Community Justice Forum, Victim Offender Mediation, Healing
Lodges, Youth Justice Committees, Restorative Conferences.
• Institution: Correctional Service of Canada Dispute
Resolution Unit.
• Legal Basis: Paragraph 718.2(e) of the Criminal Code.
NETHERLANDS AUSTRALIA
PHILIPPINES CANADA
A H R P L e g a l B r i e f
Overview of The Implementation of Restorative Justice
Approach in Various Countries

4. Inclusion
Inclusion could be shown by confession,
acceptance and acknowledgment of
alternative approach.
Amend
Amend could be shown by
forgiveness, respect, change of
attitude, restitution.
Encounter
Encounter could be shown by
meeting, narration, emotion,
understanding of agreement.
Reintegration
Practical and material support,
moral and spiritual guidance.
According to Daniel W. Van Ness and Karen Heetderks Strong in Restorative Justice: An Introduction to
Restorative Justice, the level of restorative in a restorative justice program could be measured by the
existence of four main components which act as basic values of restorative justice as follows:
A H R P L e g a l B r i e f
Indicators of Restorative Justice Approach

5. Restorative Justice is an approach to solving criminal cases by involving relevant parties including the victims, perpertrators, or other relevant authorized
parties with process and objectives of achieving recovery and not retaliation. However, various regulations with respect to the Indonesia’s criminal justice
system highly emphasized on achieving settlement in the case or as “result-oriented”, rather than prioritizing the process and aim or as “process-
oriented”.
DEFINITIONS OF RESTORATIVE JUSTICE IN VARIOUS REGULATIONS IN INDONESIA
01
“Restorative Justice is the settlement of any criminal act
case which involves the perpetrator, victim, family of
perpetrator/victim and other relevant parties to look together
for a fair settlement with emphasis on restoration to the
original state of affairs instead of retaliation.”
Law No. 11/2012
02
“Restorative Justice is a settlement of minor criminal
offence conducted by the investigator at the
investigation stage or by the judge in the beginning of
the court proceedings which involves the perpetrator,
victim, family of perpetrator/victim and relevant public figure
to jointly seek a just solution by emphasizing the restoration
to its original state.”
MoU of Chairman of Supreme Court, Minister of
Law and Human Rights, Attorney General, and
Chief of Indonesia National Police
No. 131/KMS/SKB/X/2012, No. M-HH-
07.HM.03.02 of 2012, No. KEP-
06/E/EJP/10/2012, No. B/39/X/2012 (“MoU”)
03
“…reflecting justice as a form of balance in human life, so
that the behavior deviates from the perpetrator crime is
judged as behavior that eliminates balance ... model of
settlement of cases carried out is an attempt to restore the
balance, by imposing obligations on criminals who
consciously commit a crime, apologize, and return the
damage and loss to the victim as before or at least
resemble the original condition, which can fulfill the victim's
sense of justice.”
The Chief of Indonesia National Police Circular Letter
No. SE/8/2018 (“CoINP CL No. 8/2018”)
04
“Restorative justice is a settlement of criminal case which
involves the perpetrator, victim, and/or family of
perpetrator/victim, and relevant parties with the purpose of
achieving justice for all parties.”
The Chief of Indonesia National Police Regulation
No. 6/2019 (“CoINP Reg. No. 6/2019”)
05
“Restorative Justice is the settlement of criminal cases by
involving the perpetrator, victim, family of the
perpetrator/victim, and other related parties to jointly seek a
just settlement by emphasizing restoration, return to its
original state, and not retaliation.”
Attorney General Regulation No. 15/2020 (“AG Reg.
No. 15/2020”)
06
“is an alternative settlement of criminal cases which in the
criminal justice procedure mechanism focuses on
punishment which is converted into a dialogue process
and mediation involving perpetrators, victims, families,
perpetrators/victims and other related parties to jointly
create a fair and balanced settlement agreement for
victims and perpetrators by prioritizing restoration to its
original state, and restore the pattern of good relationship in
society.”
Directorate General of the General Judiciary of
the Supreme Court Decree No.
1691/DJU/SK/PS.00/12/2020
07
“Restorative Justice is the settlement of criminal acts by
involving the perpetrators, victims, families of victims,
community leaders, religious leaders, traditional leaders or
stakeholders to jointly seek a just settlement through peace
by emphasizing restoration back to its original state.”
The Chief of Indonesia National Police Regulation No.
8/2021 (“CoINP Reg. No. 8/2021”)
The abovementioned definitions have already described restorative justice
approach which are still heavily oriented on achieving settlement.
A H R P L e g a l B r i e f
Overview of The Implementation of Restorative Justice
Approach in Indonesia (1/4)

6. There are chances of implementing restorative justice approach in Indonesian Criminal Justice System through the following means:
Suspended
Sentence
There are 2 (two) forms of suspended sentence, namely
(1) Suspended Sentence with General Condition
[Article 14a KUHP] and (2) Suspended Sentence with
Special Condition [Article 14c KUHP].
01
Notes
Incorporation of
Compensation
Compensation could be incorporated to the indictment letter for
maltreatment, fraud, and road traffic accident [Article 98-101
KUHAP].
02
Notes
Insufficient Implementing Regulation
GR No. 27/1983 does not further stipulate the incorporation of
compensation as stipulated in Article 98-101 KUHAP.
01
02 Presumption on the Limitation of Offence
Law enforcers believe the incorporation of compensation is limited to
road traffic accident.
No Incentive or Disincentive
There is no incentive or disincentive for law enforcers when they do
or do not implement the incorporation of compensation.
03
Insufficient Implementing Regulation
The only implementing regulation with respect to
suspended sentence is GR No 31/1999 which mainly
stipulates the conditions which determine the revocation
of suspended sentence of the convict. GR No. 31/1999
does not stipulate either the requirements or limitation
on the implementation of suspended sentence.
01
Misunderstanding on
the Implementation of Suspended Sentence
Judges believe suspended sentence could only be
implemented on cases where the offence is minor and
there’s a peace agreement reached between the parties.
02
Misconception on
the Purpose of Criminal Punishment
Law enforcers believe the purpose of criminal
punishment is deterrence which is in line with retributive
justice, contrary to rehabilitation which is in line with
restorative justice.
03
Restitution
Various laws which stipulate restitution include (a) Law
No. 13/2006, (b) GR No. 7/2018, (c) Law No. 23/2002,
(d) GR No. 43/2017, and (e) Law No. 21/2007.
03
Note
Insufficient and Diversity in Regulation
The restitution regulations are insufficient and diverse
regarding responsible institutions, timeline of process,
mechanism of filing complain, consequences.
Adjustments to the Limitation of
Minor Offence and Fine in KUHP
The Supreme Court Reg. No. 2/2012 was issued to fulfil the sense of
justice in the society by balancing the type of crime with the type of
punishment. It stipulates 2 (two) adjustments as follows: a. The
amount of damage caused by minor offence (Article 364, 373, 379,
384, 407, and 482 KUHP); and b. The amount of fine [except Article
303 (1) (2), 303 bis (1) (2)] – x1000.
Notes
04
Nonexistent of Basic Concept of Recovery for Victims
Supreme Court Reg. No. 2/2012 does not stipulate among others the
obligation to return damages to the victim, mechanism where victim
convey the loss and sadness caused by the offence to the victim, or
the inclusion of society who are indirect victims of the offence, which
is contrary to MoU.
01
Inconsistency of Fast Procedural Law Regulation
Proceeds of crime less than Rp2.500.000,- shall be examined in fast
procedural law, however Article 205 KUHAP limits the examination to
those crimes who are threatened with imprisonment or detention
maximum 3 months and maximum fine Rp7.500,-.
02
A H R P L e g a l B r i e f
Overview of The Implementation of Restorative Justice
Approach in Indonesia (2/4)

7. Restorative Justice Approach in
the Police of the Republic of
Indonesia
The current implementation of restorative justice in the
police of the republic of Indonesia [Article 5 (1) KUHAP;
Article 7 (1), Article 16 (1) and 18 Law No. 2/2002;
CoINP CL No. 8/2018; Article 12 CoINP Reg. No. 6/2019;
CoINP No. 8/2021] could be understood from the chart
below:
05
Note
Time Limitation on
the Implementation of Restorative Justice
CoINP CL No. 8/2018 stipulates the implementation of
restorative justice on investigation and examination stage
which is contrary to the concept of restorative justice as
restorative justice approach emphasizes the mutual
understanding among relevant parties on their views on the
offence committed.
Prosecution and
Court Proceedings
Requirements and Exceptions
Peace agreement
reached
Peace agreement
not reached
Adjournment Letter of
Investigation
(SP2Lidik)/
Examination (SP3)
Termination of Prosecution Based
on Restorative Justice
The current implementation of restorative justice with respect to
prosecution could be understood from the chart below [AG Reg. No.
15/2020]:
06
Notes
Discrepancies in the Implementation of Restorative Justice
Current implementation of restorative justice is heavily oriented on the
termination of prosecution as well as compensation of material
damages. Further, one of the requirements in termination of
prosecution is positive response from society [Article 4 (1) d and 5 (6)
c AG Reg. No. 15/2020], however the involvement of relevant parties
are facultative [Article 8 (2) AG Reg. No. 15/2020].
01
02 Incorrect Legal Basis
AG Reg No. 15/2020 is based on Article 82 KUHP, stipulates the right
to prosecute could be erased after the perpetrator paying the highest
fine, whereas there is no relation between Article 82 KUHP to
restorative justice concept.
Implementation of Cost and Benefit Approach
AG Reg. No. 15/2020 stipulates cost and benefit approach as the
consideration of termination of prosecution [Article 4 (2) e AG Reg. No.
15/2020] which is contrary to the philosophy of restorative justice which
focuses on empowering the victims’ roles in criminal justice system.
03
Court Proceedings
Requirements and Exceptions
Peace agreement
reached
Peace agreement
not reached
Adjournment Letter of
Prosecution (SKP2)
Definitions
Requirements
Exceptions
General requirements to decide whether the prosecution of criminal case could be terminated are a) the
defendant is committing crime for the first time, b) the crime is punishable by imprisonment not more
than 5 (five) years, and c) the proceeds of crime value does not exceed Rp2.500.000,- [Article 5 (1) AG
Reg. No. 15/2020].
The aforementioned general requirements have certain exceptions for property related crimes
[Article 5 (1) AG Reg. No. 15/2020], crimes against persons, bodies, lives, and freedoms of
persons [Article 5 (2) AG Reg. No. 15/2020], and negligence [Article 5 (4) AG Reg. No.
15/2020].
A H R P L e g a l B r i e f
Overview of The Implementation of Restorative Justice
Approach in Indonesia (3/4)

8. Child Criminal Justice System
The current implementation of restorative justice in
the child criminal justice system [Law No. 11/2012,
Supreme Court Reg. No. 4/2014, GR No. 65/2015]
are as follows: (a) Diversion [Article 6-15 Law No.
11/2012] and (b) Restorative Justice Approach
[Article 71-82 Law No. 11/2012].
08
Notes
Contradiction with Beijing Rules
The type of offence in implementing diversion should
not be limited to those of minor offence given the
importance of eradicating stigma on perpetrator who
is still a child [Rule Commentary 11.4 of Beijing
Rules].
Ineffective Implementation of Restorative Justice
Despite the fact that imprisonment for children should
not be the main punishment, data shows that the
number of children perpretaror being imprisoned from
various Decision of District Court in Jakarta shows
that imprisonment is still the highest type of
punishment enforced by law enforcer.
Narcotics Crime
There are various issues in the implementation of
restorative justice with respect to narcotics crime as
follows:
07
Notes
Obscurity in the Perspective of Narcotics Law
One of the purposes of Law No. 35/2009 is to guarantee
the regulation of medical and social rehabilitation for
drug addict [Article 4 Law No. 35/2009], however
imprisonment are the threatened punishment for drug
addict [Article 54, 103, 127 Law No. 35/2009].
01
The Existence of “Rubber Articles”
Owning, possessing, and buying narcotics are still
components of Article 111,112, 117, 122, 114, 119, 124
Law No. 35/2009 and the lack of limitation on the
purpose of drug trade in those articles resulting in the
enforcement of imprisonment despite the existence of
Article 127 Law No. 35/2009.
Restriction on Assessment
The implementation of Article 127 Law No. 35/2007
requires assessment of the drug addict during anytime
within the investigation period. However, National
Narcotics Board Reg. No. 11/2014 limits the time to
within 6 calendar days after being detained or
apprehended redhand.
02
03
01
02
A H R P L e g a l B r i e f
Overview of The Implementation of Restorative Justice
Approach in Indonesia (4/4)

9. Law No. 11/2021
Law No. 1/2023
1. 2. 3.
RKUHAP
has adopted
the restorative justice approach
by regulating, among others,
the following:
has adopted
the restorative justice approach
by regulating, among others,
the following:
has adopted
the restorative justice approach
by regulating, among others,
the following:
01 Purpose of Penalization
[Article 51 Law No. 1/2023]
02 Guidelines on Penalization
[Article 53 - 56 Law No. 1/2023]
03 Consideration on Penalization
[Article 54 & 56 Law No. 1/2023]
04 Eradication of the Death Penalty,
Introduction to Surveilance and
Social Work as New Types of
Criminal Punishment
[Article 65, 75 – 77, 85 Law No. 1/2023]
01 Termination of Prosecution
on the Basis of Opportunity
by considering the following: a) the
offence is a minor crime, b) crime
punishable by fine, c) age of the
perpetrator, d) compensation for
damages.
02 Compensation Mechanism
Confiscated goods shall be auctioned
and its proceeds will be given as
compensation.
03 Special Mechanism in
Out-of-Court Settlement
Should the defendant acknowledge
and confess to the crime which is
punishable by imprisonment not more
than 7 years, the case may be settled
using out of court settlement.
01 Penal Mediation
[Article 30C (d) Law No. 11/2021
and AG Reg. No. 15.2020].
02 Prosecutorial Discretion and
Leniency Policy
by considering the balance between
legal certainty [Article 34A Law
No. 11/2021] and legal benefit
[Article 139 KUHAP].
03 “Denda Damai” in Economic
Crime - Misdemeanours
A H R P L e g a l B r i e f
Overview of The Future Regulation of Restorative Justice
Approach in Indonesia

10. We will continue to follow the developments on this topic and provide additional information as it
becomes available. If you have any questions on this topic, please contact:
Adnan
adnan@ahrplaw.com
Stacia Faustine
stacia@ahrplaw.com
Indira Jauhara
indira@ahrplaw.com
This publication has been prepared by AHRP for educational and informational purposes only. The information contained in this publication is not
intended and should not be construed as legal advice. Due to the rapidly changing nature of law, AHRP makes no warranty or guarantee concerning
the accuracy or completeness of this content. You should consult with an attorney to review the current status of the law and how it applies to your
circumstances before deciding to take any action.
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