Conditional Death Penalty in the Indonesian National Criminal Code as an Effort to Bridge Legal Certainty and Human Rights Protection

Abstract

The conditional death penalty introduced by Law Number 1 of 2023 on the Indonesian National Criminal Code (National Criminal Code) marks a significant shift in Indonesia’s approach to capital punishment. By subjecting the death sentence to a probationary period and allowing possible commutation, the framework seeks to reconcile the continued use of capital punishment with the protection of the right to life. This study aims to examine the regulation of the conditional death penalty and assess its capacity to reconcile legal certainty with human rights protection. This research employs a normative legal method using statutory, conceptual, and human rights approaches. The analysis draws on legislation, criminal law doctrines, and relevant international human rights instruments. The findings demonstrate three principal issues. First, the conditional death penalty establishes a distinct legal position by treating capital punishment as a special punishment that may be commuted rather than immediately executed. Second, the commutation mechanism lacks sufficiently precise and objective standards for assessing the convicted person’s conduct and determining whether the death sentence should be converted into another punishment. Third, the distribution of authority and the procedural mechanism for evaluating the probationary period remain insufficiently regulated, creating potential inconsistencies in law enforcement and judicial decision-making. These findings indicate that the conditional death penalty constitutes a normative compromise between retentionist and abolitionist approaches, but its effectiveness depends on clearer and more objective regulatory standards. Scientifically, this study contributes a normative framework for understanding the conditional death penalty as an intermediate model between capital punishment and its abolition, while identifying the regulatory elements necessary to ensure legal certainty and human rights protection. The study recommends the development of comprehensive implementing regulations that establish objective evaluation criteria, clearly define institutional authority, and provide transparent procedures for sentence commutation. Such measures are essential to ensure that the conditional death penalty operates as a consistent legal mechanism rather than merely as a symbolic compromise between competing criminal justice perspectives.