A Comparative Analysis of Economic Duress as a Ground for Eliminating Criminal Liability for Theft in the 2023 Indonesian Criminal Code (KUHP) and the Dutch WvS

Abstract

Article 42 of the 2023Criminal Code creates fundamental ambiguity in accommodating economic duress as a reason for expunging criminal penalties. Through a comparative analysis with noodtoestand Article 40 of the Dutch WvS, economic duress is constructed as an excuse at the level of culpability, not justification. The perpetrator loses minimal freedom of will even though awareness of breaking the law remains. Article 54 paragraph (2) of the 2023 Criminal Code concerning judicial pardon has the potential to become a dead article due to the lack of technical guidelines and normative limitations. In contrast to the Dutch rechterlijk pardon which is binding with clear standards, the Indonesian provisions create the risk of disparity in decisions and dependence on the subjectivity of judges.