Verification Through the Electronic Media (Teleconference) on the Court in Criminal Judicial System

Transcription

1 - 1 - Hambali Thalib et al/ ADRI International Journal Of Law and Social Science 1 (2017) 1-9 ADRI International Journal Of Law and Social Science 1 (2017) 1-9 Verification Through the Electronic Media (Teleconference) on the Court in Criminal Judicial System ISSN : (online) ISSN : (print) Hambali Thalib 1, Sufirman Rahman 2, Muslim Mamulai 3 Hardianto Djanggih 4 1,2,3 Faculty of Law, Universitas Muslim Indonesia 4 Universitas Tompotika Luwuk Banggai muslim.cakra7@gmail.com Received February 2017; accepted April 2017; published online may 2017 Abstract. This study aims to analyze the verification through electronic media (teleconference). The study was conducted at the District Court of South Jakarta and the District Court of Central Jakarta. Methods of data collection using purposive sampling technique. The research found that the essence of verification by the electronic media is to seek the material truth obtained via media teleconference so the facts acquaired in the trial can be take into account for judges when deciding cases. The study results provide an academic contribution to the achievement of the main goal of the criminal law that seek, discover and reveal the material truth (materielle warheid) Keywords: Electronic Media, Court, Criminal Judicial System INTRODUCTION Advancement of technology has brought changes and rapid shifts in a life without borders in the era of globalization. 1 The globalization of information and communication technology has transformed the world into the era that gave rise to the Internet cyberspace with virtual reality, offers human some expectations and 1 Lathifah Hanim, Keabsahan Perjanjian Dalam Perdagangan Secara Elektronik (E-Commerce) Di Era Globalisasi, Jurnal Dinamika Hukum, Vol.11, Edisi (Khusus), Feb. 2011, Purwokerto: Fakultas Hukum Universitas Jenderal Soedirman, p.59 convenience, 2 including in interacting and communicating. Teleconference is one evidence of the presence of technological development that can not be denied. By this medium we can communicate audiovisually with someone without any constraint. This is because the teleconference can be applied under any circumstances and without limit of space, distance and time Alcadini Wijayanti dkk, Perkembangan Alat Bukti Dalam Pembuktian Tindak Pidana Berdasarkan Undang-Undang Khusus Dan Implikasi Yuridis Terhadap KUHP, Diponegoro Law Review, Vol.1, No.4, 2012, Semarang: Fakultas Hukum Universitas Diponegoro, p.3 Putu Elik Sulistiawati, dan I Iketut Sujana, Pemanfaatan Telkonferen Sebagai Alat Bantu Pembuktian Dalam Persidangan Pidana, Jurnal

2 - 2 - Hambali Thalib et al/ ADRI International Journal Of Law and Social Science 1 (2017) 1-9 The ability of internet media has changed the way of thinking and acting is also an impact on the law. Laws generally based on something real, tangible (physical) however the internet has changed the real thing into something that is purely electronic (virtual).4 Hence, the insistence on the law is getting stronger, especially in the evidence of law. To face the reality of the development of society as it is, the Law must be able to regulate the extent to which the strength of evidence from an electronic media can be used in a criminal court. 5 Verification via electronic media in its development has been practiced in the Indonesian criminal justice system, even electronic evidence has been used as an evidence in the trial of a criminal case. In fact, the applicable Criminal Code Procedure (KUHAP) in Indonesia has not accommodated verification through the electronic media, as regulated in Article 184 paragraph (1) KUHAP. The lack of means of proof only refers to what is stated in the the provisions of Article 184 paragraph (1) on KUHAP, the existence of evidence through electronic media cause prolonged controversy, especially in Article 183 Criminal Procedure Code explicitly states that: A judge shall not impose a penalty upon a person except when with at least two legal means of proof he has to come to the conviction that an offense has truly occurred and that is the accused who is guilty of committing it : Kertha Wicara, Vol.2, No.1 (2012), Bali: Fakultas Hukum Universitas Udayana, p.1 4 I Gusti Ayu, MKD, Aspek Hukum Pembuktian E- Mail Berupa Akta, Jurnal Kertha Wicara, Vol.1, No.3 (2013), Bali: Fakultas Hukum Universitas Udayana, p.2 5 Wajdi, Muh Barid Nizarudin. "Metamorfosa Perguruan Tinggi Agama Islam." AT-Tahdzib: Jurnal Studi Islam dan Muamalah 4, no. 1 (2016): The provisions of Article 183 on KUHAP has a clause about the judge's conviction to prove the defendant is really guilty. With the conviction of judges and two means of proof, then the system of proof in KUHAP also embraces the combination of conviction-in-time system (vrijbewijk) and positive proof system (positief wettelijk stelsel). Despite the judge's conviction is an important matter in criminal procedure code system, however seeing a conviction, as a subjective nature, it is becoming difficult to objectively tested. Because to get a conviction, judges must be able to understand the background of a person's life, behavior and body language (gestures) on the court whe the judges physically face-to-face Developments in the evidence of criminal law in Indonesia above, which is in the process of investigtion of a witness in a criminal case through visual electronic media also raises the pros and cons. The first implementation of the examination of witnesses through visual electronic media (teleconference) in the trial in Indonesia conducted in When the former President BJ Habibie testify of Hamburg, Germany for the trial of of corruption cases in Bulog rice procurement by the defendant Rahardi Ramelan. The procedure of testimony via teleconference raises debatable among the experts, considering if we refer to the provisions of KUHAP Article 185 paragraph (1) that stipulates the testimony of a witness as a means of proof what the witness has stated at trial. Based on the testimony definition in the formulation of the mentioned article, the witness should be physically present (material conditions). It is undeniable that the use of teleconference as a medium to deliver information from witnesses, have

3 - 3 - Hambali Thalib et al/ ADRI International Journal Of Law and Social Science 1 (2017) 1-9 shown that the law enforcement component of the criminal court system has shown the attitude of responsiveness to the development of technology, especially information technology and telecommunications 2. Methods This type of study used by researchers is a normative law research supported by case studies, with a reason to generate arguments, theories or new concepts as prescriptions in solving problems. This study also aims to identify the nature of the evidence of implementation of electronic media. Methods of data collection using purposive sampling technique. 3. Discussion The essence of evidence procedure through the electronic media, it is necessary to elaborate about Electronic Information and Electronic Documents as electronic media, as well as its use as evidence. Law Number 11 Year 2008 on Information and Electronic Transactions as revised by Law No. 19 Year 2016 on the Amendment of Law Number 11 Year 2008 on Information and Transactions Elektrnonik (UU-ITE), Electronic Information means one cluster or clusters of electronic data, including but not limited to writings, sounds, images, maps, drafts, photographs, electronic data interchange (EDI), electronic mails, telegrams, telex, telecopy or the like, letters, signs, figures, Access Codes, symbols or perforations that have been processed for meaning or understandable to persons qualified to understand them. Whereas, Electronic Record means any Electronic Information that is created, forwarded, sent, received, or stored in analog, digital, electromagnetic, optical form, or the like, visible, displayable and/or audible via Computers or Electronic Systems, including but not limited to writings, sounds, images, maps, drafts, photographs or the like, letters, signs, figures, Access Codes, symbols or perforations having certain meaning or definition or understandable to persons qualified to understand them. As stated on Article 5 paragraph 1 UU-ITE that Electronic Information and/or Electronic Records and/or the printouts thereof as intended shall be the expansion of lawful means of proof in accordance with the Law of procedure applicable in Indonesia. In paragraph (2), Electronic Information and/or Electronic Records shall be declared to be lawful if using Electronic Systems in accordance with provisions as governed by this Law. Further, in article 44, stated that Electronic Information and/or Electronic Records is lawful means of proof in accordance with the Law of procedure. Therefore, the intended one is an extension of the valid evidence confirm the type of evidentiary according to Law Number 8 year 1981 on KUHAP. The use of electronic information and/or electronic documents as evidence is also known in Law 20 of 2001 on the amendment of Law Number 31 of 1999 on Corruption Eradication. In this law, even though the legal standing of information and/or electronic documents is accepted as a means of proof, however not as a standalone evidence but rather an extension of evidence hint as one type of evidentiary. The provisions on the subject can be found in Article 26 A of Law No.20 Year 2001

4 - 4 - Hambali Thalib et al/ ADRI International Journal Of Law and Social Science 1 (2017) 1-9 on the amendment to Law Number 31 of 1999 on Corruption Eradication mentioned evidentiary in the form of instructions as stipulated in Article 188 paragraph (2) of the Law No. 8 Year 1981 on KUHP, specifically to anti-corruption can also be obtained from: 1. Other evidentiary material in the form of information uttered, sent received, or kept electronically by means of optical device or other similar equipment; and 2. Documents, namely any recorded data or information that can be seen, read and/or heard, and issued with or without the help of equipment, either those printed on paper and physical material other than paper, or those recorded electronically in the form of writing, voice, picture, map, draft, photograph, letters, signs, figures or perforations that have meaning. Further, in the explanation mentioned the term "electronically stored" for example, data stored in the micromovies, Compact Disk Read Only Memory (CD-ROM) or Write Once Read Many (WORM). While the definition of "optical device or other similar device" in this verse is not limited to the data link electronics (electronic data interchange), electronic mail ( ), telegraph, telex and facsimile Electronic information and electronic documents as evidence is also known in Law Number 32 Year 2009 on the Environmental Protection. Article 96 states that Valid evidences in criminal prosecution shall include as follows: statement by witness, testimony by expert, letter, clue(s), testimony by defendant; and/or, others, including evidences as regulated under the prevailing laws and regulations. In addition, provisions on the expansion of sources of valid evidentiary materials in the form of tip stipulate that the tip can be obtained not only from witnesses, letters and information from the defendant but also from other evidentiary materials in the form of information uttered, sent, received or kept electronically by means of optical device or other similar equipment but not limited to electronic data interchange, , telegram, telex, facsimile, as well as from documents, namely any piece of recorded data or information that can be seen, read and/or heard and issued with or without the help of means, either those put on papers, physical materials other than papers, or those recorded electronically in the form of writing, voice, picture, map, draft, photograph, letters, signs, figures or perforations that have meaning. The provisions shows that the position of the electronic information or an electronic document is as a stand-alone evidentiary other than the evidence that has been regulated in Law Number 8 of 1981 on KUHAP. Seeing the technological development in technology communication and information that contribute to the verification in the criminal judicial, and to focus the discussion, we will discuss the medium used in the electronic media, namely teleconference, electronic recording (interception) and electronic mail. The development of technology allows people to communicate via teleconference. With this teleconference technology we not only hear the sound of other people who are far away, but also serves as a virtual image (image serving people with whom to communicate at that moment), especially in giving evidence and witness testimony evidence in criminal court system.

5 - 5 - Hambali Thalib et al/ ADRI International Journal Of Law and Social Science 1 (2017) 1-9 Teleconference is communication between people (parties) are far apart include sounds and images coomunication 6. Teleconference is also an exchange of information taken directly between people and machines are far from each other but are connected by a communication system to connect the teleconference to present the data with a tool or a tool like the telephone, telegraph, television, and etc 7. One type of evidentiary regulated in the criminal procedure law is the testimony, witness testimony as a evidence is what the witness stated in court (Article 185 ayat (1) KUHAP). If associated with the provision of Article 1, point 27, KUHAP then the witness should be explained in the trial is: 1) What the witness see by itself 2) What the witness hear by itself 3) What the witness undergo by itself In fact, the testimony of witnesses in KUHAP changes and has improved fundamentally in accordance with the development of science, especially in the field of information and communication technology. The existence of some evidence in the form of electronic records in the laundering of money as a evidentiary in the practice of criminal judicial. It also introduced the investigation of witnesses remotely (distant) by utilizing multimedia technology called teleconference 7. KUHAP does not recognize electronic evidence as well as provisions on the procedure of examining the witness via teleconference information technology. 8 KUHAP does not recognize electronic evidence as well as provisions on the procedure of examining the witness via teleconference information technology infrastructure is a law vacuum in evidence procedure. To fill the gap, Peter de Cruz as translated by Narulita Yusron 9 explains: Usually there are two approaches that can be identified on the role of the British judiciary in dealing with situations when there is a void or a gap in the legislation, in dealing with a case before the courts. The first is to consider each function of the legal establishment as harassment of legislative functions by the judiciary, and the second is to maintain that the court was there just to make sure and realizing the wishes of Parliament, and filling the void is merely a means to ensure the achievement of this objective. Peter de Cruz opinion, especially the first opinion, consider every law formation function as harassment upon legislative functions by the judiciary with the discovery of the law by the judge (rechtvinding). Back in to the verification through electronic media, in the judicial sector in Indonesia, the verification by teleconference trial ever conducted in Rahardi Ramelan, the Ad Hoc Court and the case Abu Bakar Ba'asyir. To Bali in the 6 7 Saifudin, Analisa dan Implementasi teleconference dengan ISDN pada Telkom Divisi Regional V, Diperoleh Dari: w ww.knowledgecenteriftb,ac.id pada tanggal 16 Oktober 2016 Diperoleh dari pada tanggal 16 Oktober 2016, diakses pada tanggal 25 Nopember 2016, pukul 16;00 wita 8 9 Aloysius Wisnuboroto dan Gregorius Widiartana, Pembaharuan Hukum Acara Pidana Bandung, Citra Aditya Bakti, 2005, hal. 39. Peter de Cruz, Comparative Law in a Changing World, London-Sydney, Cavendish Publishing Limited, 1999, diterjemahkan oleh Narulita Yusran, Perbandingan Sistem Hukum, Civil Law, Common Law dan Socialist Law, Penerbit Nusa Media, Bandung, 2012, hal

6 - 6 - Hambali Thalib et al/ ADRI International Journal Of Law and Social Science 1 (2017) 1-9 Bali bombing case court defendant Ali Gufron Alias Muhklas held teleconference on the testimony Wan Min bin Wan Mat from Malaysia. The trial of Abu Bakar Bashir, who has been described in the previous section, witnesses were adjudicated by teleconference based on the South Jakarta District Court Decision No. 148/PEN.PID/2011/PN.Jkt.Sel.March 10, 2011, with the following arguments: 1. Article 33 jo. Article 34 paragraph (1) letter c of Law Number 15 Year 2003 on Stipulation of Government Regulation in lleu of Law Number 1 Year 2002 on The Combating Criminal Act of Terorism becomes law. 2. Article 2 jo. Article 3 letter c Government Regulation Number 24 Year 2003 about Procedures for the Protection of Witnesses, Investigators, Public Prosecutors and Judges in Case of Criminal Acts of Terrorism. 3. Article 9 paragraph (1) and paragraph (3) of Law Number 13 Year 2006 on the Protection of Witnesses and Victims. Another example, decree No. 224/Pid.B/2003/PN.Dps October 2, 2003 in the name of defendant Ali Gufron as Muhklas for example, the judges of the Denpasar District Court in its legal considerations permit the convening of teleconference because of: a) That is true teleconference is not regulated in the KUHAP because the legislators at that time was certainly not aware of the rapid information and communication technology revolution, so that the KUHAP is not able to anticipate. Referring rigidly/formally legalistic teleconference is indeed not in accordance with Article 160 paragraph (1) Letter a and Article 167 KUHAP which requires the physical presence of the witness in the courtroom. In digging, following, understand ing and pursuing the material truth in criminal law, the formal aspects should be left selectively. b) Basically the KUHAP was made for the purpose of gain the material truth so teleconference is merely a means to search for the material truth so what is wrong if it is used. In a teleconference trial, witnesses can also be present in the courtroom virtually. All parties may also examine any witness testimony and his testimony is audible for all the auidience. c) The objection of Team Lawyers which states the failure of the public prosecutor does not need to be handled by teleconference since Article 162 KUHAP regulates it, Assembly argued because a witness has been sworn by the investigator then read and the information is comparable in value to the witness testimony under oath at the trial (Article 162 (1), (2) KUHAP) as a witness Wan Min bin Wan Mat feasible if it presented through a media teleconference. d) Toward the objection of legal counselor which states teleconference Judicial is contradictive with the principles of competence judicial, the Assembly declared it wasn t unacceptable. If it was approved, The judicial system in Indonesia will be outdated to face ever-changing technological and information revolution. According to the judges, the investigation of distance witnesses by teleconference is one form of the birth of the global and cross-border Judicial Information. For the Assembly, Investigation through teleconference media

7 - 7 - Hambali Thalib et al/ ADRI International Journal Of Law and Social Science 1 (2017) 1-9 is similar to a regular investigation at the trial. The functions And the goal is in line with the judicial process which is aims to search the material truth. Concerning about the witness Wan Min Wan Mat will testify not in a free state/depressed, this is based on the decision of the Assembly before a judge, prosecutor and legal counselor and broadcasted on television so the assembly did not find any indication that the witness will testified in dependent condition. It is appropriate when the legal counselor asked whether the witness was testified in a free state/indendent, not suppressed, or not guided by the text in front of him and no police officers around him. Based on Article 27 of Law Number 15 Year 2003 on Stipulation of Government Regulation in Lieu of Law No. 1 year 2002 on The Combating Criminal Act of Terorism-Becomes a Law., enables to using as a evidentiary which is information that uttered electronically, in this case including via teleconference Another example is the trial of the criminal case with the accused Rahardi Ramelan at the South Jakarta District Court. This trial hearing the former President Indonesia B.J. Habibi testimony by using teleconference. The investigation procedure using the technology of media teleconference, this was the first time happened and practiced in the judicial history of Indonesia 10. The trial was held separately at the South Jakarta District Court. Similarly with the case of Bashir which are involving several witnesses of the citizens of Singapore, Malaysia via teleconference by some reason. The process of investigation is delivered in the courtroom at the South Jakarta District Court directly from Singapore and Malaysia. In the case of Bashir, witnesses testimony Faiz Bafana and Ja'far bin Misrooki (residing in Malayasia and Singapore) was explained via the teleconference. The trial was not implemented at the Embassy of the Republic of Indonesia as the region that represent Indonesian government in the country. However, it was occured directly from Singapore and Malaysia. Teleconference, not only practiced in the investigation of witnesses. The Supreme Court of Indonesia, based on the Supreme Court Regulation Number 1 Year 2016, Article 5 (4) states that "mediation meeting can be conducted via distance audio-visual communication that enables all parties to see and hear each other directly and participate in the meeting". The Supreme Court Regulation (PERMA) is basically a form of rules that contains provisions of which is procedure law. Whereas, Supreme Court Circular Letter (SEMA) is supreme court s leader circulars to all levels of the judiciary which contains guidance in the judicial procedure, which is more administrative. 11 Yet, it is a new historical milestone in the implementation of a teleconference that has not been practiced in a penal procedural law, in particular the investigation of witnesses, but it is already 10 H. M. Arsyad Sanusi, et. Al. Analisis dan Evaluasi Hukum Tentang Pemanfaatan Media Elektronik (Teleconference) Untuk Pembuktian Dalam Hukum Acara Pidana, Badan Hukum Nasional Departemen Hukum dan HAM RI, Jakarta, 2003, hal.3 11 Henry P. Panggabean, Fungsi Mahkamah Agung Dalam Praktik Sehari-hari, Jakarta, Pustaka Sinar Harapan, 2001, hal 144

8 - 8 - Hambali Thalib et al/ ADRI International Journal Of Law and Social Science 1 (2017) 1-9 practiced on the implementation of the mediation. 4. Conclusion The essence of proof through electronic media (teleconference) in the perspective of the Indonesian criminal judicial system is to discover the material truth based on law of evidence via an electronic media in order to gain the facts in the trial. Investigation by teleconference is similar to how regular investigation in trial was conducted directly and transparently. The function and purpose is relevant with the judicial process itself, which to seek and find the material truth. 5. Suggestion This study suggests that Law No. 8 year 1981 KUHAP should be revised immediately, and the adjustments should also taking development of science and technology into account in order to the function and purpose in accordance with the judicial process itself, which to seek and discover the material truth. Indonesian judicial system will not be lagged behind when the development of information and communication technology is adapted into law.. Reference Alcadini Wijayanti dkk, Perkembangan Alat Bukti Dalam Pembuktian Tindak Pidana Berdasarkan Undang-Undang Khusus Dan Implikasi Yuridis Terhadap KUHP, Diponegoro Law Review, Vol.1, No.4, 2012, Semarang: Fakultas Hukum Universitas Diponegoro Aloysius Wisnuboroto dan Gregorius Widiartana, Pembaharuan Hukum Acara Pidana Bandung, Citra Aditya Bakti, Facta Pos, Klarifikasi Hakim Lakukan Teleconference, data diakses tanggal 25 Mei 2011, alvalaible from: URL: hakim-lakuka n- teleconference.html, diakses pada tanggal 18 Oktober 2016, pukul Gusti Ayu, MKD, Aspek Hukum Pembuktian Berupa Akta, Jurnal Kertha Wicara, Vol.1, No.3 (2013), Bali: Fakultas Hukum Universitas Udayana H. M. Arsyad Sanusi, et. Al. Analisis dan Evaluasi Hukum Tentang Pemanfaatan Media Elektronik (Teleconference) Untuk Pembuktian Dalam Hukum Acara Pidana, Badan Hukum Nasional Departemen Hukum dan HAM RI, Jakarta, Henry P. Panggabean, Fungsi Mahkamah Agung Dalam Praktik Sehari-hari, Jakarta, Pustaka Sinar Harapan, 2001, hal 144 Lathifah Hanim, Keabsahan Perjanjian Dalam Perdagangan Secara Elektronik (E-Commerce) Di Era Globalisasi, Jurnal Dinamika Hukum, Vol.11, Edisi (Khusus), Feb. 2011, Purwokerto: Fakultas Hukum Universitas Jenderal Soedirman. Peter de Cruz, Comparative Law in a Changing World, London-Sydney, Cavendish Publishing Limited, 1999, diterjemahkan oleh Narulita Yusran, Perbandingan Sistem Hukum, Civil Law, Common Law dan Socialist Law, Penerbit Nusa Media, Bandung, 2012 Putu Elik Sulistiawati, dan I Iketut Sujana, Pemanfaatan Telkonferen Sebagai Alat Bantu Pembuktian Dalam Persidangan Pidana, Jurnal Kertha Wicara, Vol.2, No.1 (2012), Bali: Fakultas Hukum Universitas Udayana, Saifudin, Analisa dan Implementasi teleconference dengan ISDN pada Telkom Divisi Regional V, Diperoleh Dari: dgece nteriftb,ac. id pada tanggal 16 Oktober ml pada tanggal 16 Oktober 2016,

9 - 9 - Hambali Thalib et al/ ADRI International Journal Of Law and Social Science 1 (2017) 1-9 diakses pada tanggal 25 Nopember 2016, pukul 16;00 wita Wajdi, Muh Barid Nizarudin. "Metamorfosa Perguruan Tinggi Agama Islam." AT-Tahdzib: Jurnal Studi Islam dan Muamalah 4, no. 1 (2016):