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VOL. 8, ISSUE 1 (2026)
Legal analysis of the meaning of "victims' losses and suffering are not too great" from the perspective of legal certainty
Authors
Muhamad Faizal Salampessy, Setiyono, Hatarto Pakpahan
Abstract
The paradigm shift in Indonesian criminal law through Law Number 1 of
2023 concerning the Criminal Code introduces normative innovations, one of
which is in Article 70 paragraph (1) letter d, which grants authority to a
judge not to impose an imprisonment sentence based on the consideration that ‘the
loss and suffering of the victim are not too great.’ This norm represents a
shift from a retributive approach towards a sentencing system that is
substantially just and responsive to the principles of restorative justice and
ultimum remedium. However, this key phrase is an open-ended formulation, laden
with subjective and multidimensional content, encompassing both material and
immaterial aspects, as well as physical and psychological elements. The lack of
clarity in its operational boundaries has the potential to create legal
uncertainty, extreme disparities in judgments between courts, abuse of
discretion, and procedural injustice for victims, particularly from vulnerable
groups. This research aims to analyze the normative meaning of this phrase in
depth using the legal hermeneutics method, Gustav Radbruch's theory of legal
certainty, theory of justice, and a comparative approach. Based on
terminological and theoretical analysis, it is concluded that the assessment of
this phrase requires a holistic and contextual approach. The research then
formulates measurable multidimensional operational parameters, encompassing
economic, medical, psychological, and sociological aspects, as well as the
capacity for restoration and reconciliation. Clear interpretative guidelines,
such as a Supreme Court Regulation or technical directive, are necessary to
bridge the gap between normative progress and practical implementation,
ensuring that this norm functions effectively as a preventive filter against
overcriminalization and prison overpopulation, while guaranteeing legal
certainty and substantive justice for all parties.
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Pages:70-76
How to cite this article:
Muhamad Faizal Salampessy, Setiyono, Hatarto Pakpahan "Legal analysis of the meaning of "victims' losses and suffering are not too great" from the perspective of legal certainty". International Journal of Law, Policy and Social Review, Vol 8, Issue 1, 2026, Pages 70-76
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