Gabriel Angelia Bahari
Universitas Pelita Harapan

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Reconstructing Prosecutorial Discretion: The Principle of Opportunity in Implementing Penal Mediation Gabriel Angelia Bahari; Agus Budianto
Journal Of Social Science (JoSS) Vol 5 No 10 (2026): Journal of Social Science
Publisher : Al-Makki Publisher

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.57185/5p786469

Abstract

Rigid adherence to formal legality in criminal prosecution can marginalize victims’ recovery and restrict the use of penal mediation in Indonesia. This study aims to reconstruct the opportunity principle as a doctrinal basis for public prosecutors to discontinue prosecutions following successful restorative settlements. Normative legal research was conducted using statutory, conceptual, and philosophical approaches. Primary materials comprised criminal justice legislation and prosecutorial regulations, while secondary materials included scholarly publications and legal doctrines. Materials were examined through qualitative prescriptive analysis, deductive reasoning, and systematic and teleological interpretation. The analysis identifies a conceptual tension between the centralized opportunity principle and the need for restorative discretion at the local prosecution level. It proposes a micro opportunity principle that reorients prosecutorial discretion toward victims’ rights, reparation, and substantive justice. Under this construction, successful penal mediation could justify discontinuing eligible prosecutions, provided that objective eligibility criteria, transparency, and institutional oversight are established. The discussion suggests potential benefits for case management, correctional overcrowding, and judicial expenditure, although these outcomes require empirical verification. The study concludes that legislative recognition and supervisory guidelines are necessary to strengthen the legal certainty and accountability of restorative prosecutorial discretion while safeguarding against arbitrary decisions and ensuring meaningful protection for affected victims.