ELECTRONIC INFORMATION AN ELECTRONIC DOCUMENT AS EVIDENCE UNDER PENAL LAW

Technological advances in people’s lives provide convenience for users to carry out daily activities. The convenience provided by technological advances can be seen in various aspects, one of which is the legal aspect. The presence of electronic information and/or electronic documents can be used as evidence and proof that an event has occurred. However, until now there is still a debate on the admissibility of electronic information and/or electronic documents as evidence in the trial.

Article 184 of the Criminal Procedure Code stipulates that legal evidence includes (i) witness statement, (ii) expert statement, (iii) letter, (iv) instructions and (v) statement of the defendant. As explained in the provisions of the article above, Article 184 of the Criminal Procedure Code has expressly limits as to the types of evidence that can be used as proof at the trial. 1

Furthermore, Article 5 of Law Number 11 of 2008 as amended by Law Number 19 of 2016 concerning Electronic Information and Transactions (“Law 19/2016”) stipulates that electronic information and/or electronic documents and/or printed results is legitimate legal evidence2 and is an extension of legal evidence in accordance with the applicable Laws in Indonesia.3 Referring to the provisions of Article 5 of Law 19/2016, informed that in criminal proceedings, electronic information and/or electronic documents can be used as legal evidence.

In the Supreme Court Decision Number: 777/ Pid.B/2016/PN.JKT.PST in the case of Jessica Kumala, the Public Prosecutor used the CCTV record results as evidence, for consideration by the Judge explaining that CCTV footage can be used as an extension of Article 184 paragraph (1) of the Criminal Procedure Code as evidence if it corresponds to criminal facts and events, so that it can be used by the Panel of Judges as guidance. However the use of electronic evidence as legitimate evidence is being limited as stated in Indonesia’s Constitutional Court Decision Number 20/PUU XIV/2016 submitted by Drs. Setya Novanto.
In its consideration, the Court stated that to prevent differences in interpretation of Article 5 paragraph (1) and paragraph (2) of Law 19/2016 it must be emphasized that each interception shall be conducted legally, especially in the context of law enforcement by adding the word or phrase “specifically”.4

Based on the decisions above the Judge’s consideration as stated in Supreme Court Decision Number: 777/Pid.B/2016/PN.JKT.PST is correct. That the CCTV used as evidence is in accordance with the criminal event. The presence of technological ability to record and store data may be used as evidence for the Judges’ consideration. This is notwithstanding that Article 188 paragraph (2) of the Criminal Procedure Code states that the instructions can only be obtained through (i) witness statements, (ii) letters and (iii) defendant’s information. However, if electronic information and/or electronic documents can help Judges to have a better understanding of the evidence and therefore able to come to a more correct and fair verdict, then , electronic information and/ or electronic documents should normatively be admissable as valid evidence.

Dr. Edmon Makarim, S.Kom, S.H, LL.M said in the Indonesia’s Constitutional Court Decision Number 20/PUU-XIV/2016 that there must
be a separation between the evidence and
the process to obtain the evidence, so that
all electronic information and/or electronic documents and/or printed results is a legal proof of law.5 Based on the Indonesia’s Constitutional Court Decision Number 20/PUU- XIV/2016 the judges agreed with Dr. Edmon Makarim, S.Kom, S.H, LL.M proposition that clearer regulations must be passed regarding the procedures for obtaining electronic information and/or electronic documents
to ensure the accuracy and validity of the electronic evidence. By its nature, electronic evidence is easily manipulated and corrupted. Thus, stricter rules of evidence need to be in place to ensure the chain of evidence and perhaps the downloading and safe keeping process of such electronic evidence.

In the final analysis, electronic information and/ or electronic documents are legitimate evidence and are admissable under the penal law so long as the method used to obtain the electronic information and/or electronic documents is in accordance with the applicable laws and regulations.

1. https://www.kejaksaan.go.id/unit_kejaksaan.php?idu=28&idsu=35&id=4183, accessed on 7 December 2018; 2. Article 5 paragraph (1), Law 19/2016; 3. Article 5 paragraph (2), Law 19/2016. 4. Supreme Court Decision Number: 777/Pid.B/2016/PN.JKT.PST, page 96;
5. Indonesia’s Constitutional Court Decision Number 20/PUU-XIV/2016, page 106.

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