THE EXISTENCE OF ELECTRONIC EVIDENCE IN VERIFICATION LAW SYSTEM IN INDONESIA FROM THE JUDGE’S PERSPECTIVE
PROCEEDINGS ICTESS UNISRI 2017 ISSN: 2549-094X
Vol 1, Number 1, January 2017
THE EXISTENCE OF ELECTRONIC EVIDENCE IN VERIFICATION
LAW SYSTEM IN INDONESIA FROM THE JUDGE’S PERSPECTIVE
Dedy Muchti Nugroho, SH, M.Hum
Prof., Dr., Setiono, SH., MS
Prof., Dr., Adi Sulistiyono, SH., MH
Sebelas Maret University
Abstract: To find out the verification of civil case and criminal case in Republic of
Indonesia’s Law No.11 of 2008 about Information and Electronic Transaction.
Conclusions: (1) in civil case using electronic evidence, the evidence that is
legitimate and can be revealed in the verification process is determined based on
Article 5 clause (1) and (2) of Law Number 11 of 2008 about Information and
Electronic Information confirming that information and or electronic document
can be considered as a legitimate evidence in verification process particularly in
civil case using electronic evidence, the evidence is the expansion of evidence as
regulated and enacted in the civil case law corresponding to the provision of
Article 1866 BW. (2) The verification of crime should ensure that the existing
electronic document came from electronic system meeting the requirement based
on the legislation and after the enactment of ITE Law, there is an addition of
evidence and the recognition of electronic document as a legitimate evidence
determining that electronic document or its print out is the legitimate evidence that
can be used before the trial as long as the information contained within it can be
accessed, displayed, and ensured for its completeness and accountable for thereby
informing a condition. In addition, the position of electronic document is
equalized to the document prepared on a piece of paper as mentioned in General
Explanation of ITE Law.
of penal code governing the crime in
A. Introduction
The
crime
in
information
information technology area is commonly
technology sector or called cybercrime or
computer-related
crime
occurs
called cybercrime law.
more
Many factors result in the increased
widely in Indonesia. Cybercrime is human
number of cybercrimes in Indonesia
activity in the cyber space making
including
computer target of crime (e.g. illegal
cybercrime
access, site hacking, illegal interception)
optimal ability of dealing with cybercrime
and human activity using computer as the
and society’s low awareness of cybercrime
target of crime (e.g. credit falsification,
eradication.
pornography via internet). The provision
207
rudimentary
law,
law
provision
enforcer’s
of
less
PROCEEDINGS ICTESS UNISRI 2017 ISSN: 2549-094X
Vol 1, Number 1, January 2017
One important factor making the
Considering
this
phenomenon,
there
cybercrime eradication failed in Indonesia
should be a research on the application of
is
on
Information and Electronic Transaction
cybercrime, the types of cybercrime, the
Law to the verification of civil and
danger of cybercrime, punishment threat
criminal cases.
inadequate
understanding
and
Verification, according to Subekti1,
cybercrime law enforcing mechanism.
is the attempt of convincing the judge
Adequate understanding on cybercrime
concerning the actual law between the
will encourage everyone to choose any
parties in the case. In this case, between
way to avoid cybercrime. The perfect
evidences and the crime indicted. In
understanding on cybercrime for will help
constructing this legal relation, each party
the law enforcer deal with cybercrime
uses evidence to verify their proposition
repressively through applying the penal
suggested. For that reason, the judge is
code in information technology sector.
reasonable
for
the
cybercrime
perpetrator
to
accept
the
parties’
Law
propositions (public prosecutor or the
Number 11 of 2008 about Information and
indicted) without limited by the use of
Electronic
evidence as long as the proposition meets
Republic
of
Indonesia’s
Information
began
to
be
proposed to the Legislative Assembly
the principles of logics.
(DPR RI) on May 17, 2006 and was
ratified since its enactment date of April
B. Problem Statement
21, 2008 consisting of 13 (thirteen)
1. How is the Republic of Indonesia’s
chapters and 54 (fifty four) articles so that
Law Number 11 of 2008 about
in juridical view, the cybercrime case
Information and Electronic Transaction
occurring should be trialed based on
applied to the verification of civil
Information and Electronic Transaction
case?
Law as long as its crime elements met the
2. How is the Republic of Indonesia’s
provision of a crime as mentioned in the
Law Number 11 of 2008 about
law, but in fact many cases that should be
Information and Electronic Transaction
trialed
applied to the verification of criminal
based
on
Information
and
case?
Electronic Transaction Law processed in
criminal judicature based on the law other
than
Information
and
C. Discussion
Electronic
11
Subekti, Hukum Pembuktian, Jakarta :
Pradnya Paramita, 1983, pp. 7-8.
Transaction Law by the law enforcer.
208
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information
1. The Legal Power of Electronic
Evidence Based on Civil Procedural
Law and Law Number 11 of 2008
about Information and Electronic
Transaction
Speaking of electronically
document
evidence
itself.
and
of
In
other
Legislations
such
procedural
law,
the
civil
case
using
information technology. Information
and or electronic document can be
as
considered as electronic evidence. In
addition to be determined as the
11 of 2008.
expansion
Electronically verifying process
of
by keeping considering the provision
in
the
2008
about
Information
and
Electronic Transaction, the evidence
of legitimate evidence in Article 1866
can be interpreted extensively so that
BW. In the civil case using electronic
the intended information or electronic
evidence, the evidence mentioned in
document has the same legal power as
article 1866 BW is the legitimate
the one in ordinary criminal case as
evidence as long as it is obtained
governed in Article 1866 BW. The
through lawful process. In civil case
evidence in the form of information
using electronic evidence, the legal
and or electronic document can be
evidence can be suggested in the
considered as a supposition as a
verification process based on Article 5
legitimate evidence as governed in
clauses (1) and (2) of Law Number 11
Information
evidence
Article 5 clause (2) of Law Number 11
electronic evidence as well, in this case
about
of
procedural law enacted based on the
should be supported by a variety of
2008
civil
is the one produced and containing
as
Republic of Indonesia’s Law Number
of
law
electronic evidence, the evidence used
governed in the Civil Procedural Law
and
procedural
1866 BW.
electronic
verification
in
consistent with the provision of Article
evidence being investigated based on
provision
enacted
particularly
document in civil case using electronic
the
as
the expansion of the one as governed
The
to information technology such as
or
considered
electronic evidence. The evidence is
the one involving many things related
and
be
electronic
process particularly in civic case using
electronically verification process is
information
can
or
legitimate evidence in the verification
verification is inseparable from the
electronic
and
Article 1866 BW. It is because the
and
supposition evidence is considered as
Electronic Transaction confirming that
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Vol 1, Number 1, January 2017
legitimate when it is obtained from the
At a glance, this principle seems to be
Judge’s knowledge.
very easy but in practice it is very
When
information
or
difficult to determine appropriately
electronic document is considered as
who should be imposed with an
the letter evidence as governed in
obligation to verify something. As the
Article 1866 BW either directly
or
criterion, it can be suggested that not
through extensive law interpretation,
only one party is obliged to verify but
information
electronic
also it should be considered the
document is the supposition evidence,
casuistically according to the concrete
so that the validity of electronic
condition and the verification should
evidence can be seen clearly and it can
be imposed to the less incriminated
be proposed as the evidence in the
party.
and
or
and
process of verifying the civil case
Considering the provision of
using electronic evidence, so that the
Article 1 number 1 of ITE Law,
verification process conducted in this
electronic transaction is defined as a
civil case with electronic evidence has
lawful deed conducted by and using
the same legal power as the one in
computer
ordinary criminal case as governed in
media. In the attempt of conducting
Article 1866 BW juncto Article 5
electronic
clauses (1) and (2) Number 11 of 2008
always uses electronic document as
about
their
Information
and
Electronic
Transaction.
and/or
other
transaction,
foundation
to
electronic
the
parties
make
legal
relations. Related to the presence of
Other
evidences
as
electronic transaction using electronic
witness information and expert opinion
document, in ITE Law there is a
are
principle determining that everyone
important
evidence
such
in
the
electronically verifying process in civil
stating
case
evidence
existing right or rejecting others’ right
although it is not the product of or does
(the similar principle existing in article
not contain information technology
163 HIR juncto Article 1865 BW)
element. The article 163 HIR of
based on the presence of electronic
Indonesian
information
using
electronic
civil
procedural
law
the
right,
confirming
and/or
the
electronic
mentions the principle of “everyone
document should ensure that electronic
proposing something should verify it”.
information
210
and/or
electronic
PROCEEDINGS ICTESS UNISRI 2017 ISSN: 2549-094X
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document existing derives from the
document evidence. Considering the
electronic system complying with the
provision of Article 5 clause 1 of ITE
precondition based on legislation.
Law, it is mentioned that electronic
The precondition determined in
information
and
or
electronic
ITE Law is the one pertaining to the
document and or its print out is the
presence
transaction
legitimate legal evidence. Furthermore,
and/or electronic document in which
Article 5 clause 2 of ITE Law
the subject or the system should be
mentions that electronic information or
certified by:
electronic document as intended in
of
Firstly,
electronic
credibility
certification
clause 1 is the expansion of legal
will
undertake
evidence and corresponding to the
function
including
procedural law enacted in Indonesia.
registration and physical authentication
Thus, ITE Law has determined that
on business performer, development
electronic document and or its print out
and
are the legitimate evidence and the
institution
that
administrative
management
of
credibility
certificate and preparing the suspended
expansion
of
certificate list as determined in Article
according
to
10 of ITE Law.
enacted in Indonesia so that they can
Secondly, the organizer of electronic
be used as evidence before the trial.
certification
administrative
involve
undertaking
function
registration
and
that
legitimate
the
evidence
procedural
law
Then, Article 5 clause 3 of ITE
may
Law
physical
mentions
information
and
that
electronic
or
electronic
authentication on the applicant, the
document is stated as legitimate when
development
of
it uses electronic system corresponding
public lock or private lock, the
to the provision existing in ITE Law.
management of electronic certificate
Thus, the use of electronic document
and suspended certificate list, as
as the legitimate evidence when using
mentioned in Articles 13 and 14 of ITE
an electronic system corresponding to
Law.
the provision as mentioned in Article 6
and
management
of ITE Law stating that electronic
2. The validity of Electronic Document
document is considered as legitimate
Verification Based on ITE Law
In the enactment of ITE Law,
as long as the information included can
there is a new regulation on electronic
be accessed, displayed, ensured for its
211
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Vol 1, Number 1, January 2017
completeness
and
accountable
for
Government Regulation No. 24 of
thereby informing a condition. In
1997 about Land Registration.
addition, it is the electronic document,
In the attempt of preparing an
the position of which can be equalized
agreement or electronic transaction
with the document made on a piece of
poured into electronic document, the
paper as mentioned in the General
validity of such electronic document
Explanation
should contains electronic signature; it
of
ITE
Law.
This
provision is an exception as intended
is
in Article 5 clause 4 of ITE Law
concerning the most important element
mentioning that several types of
in preparing a deed as governed in
electronic document cannot be the
Article 1867 BW juncto Article 1874
legitimate evidence when they are
BW and the preconditions of legitimate
related to its preparation, in which
agreement as governed in Article 1320
letter, according to the law, should be
BW. Furthermore, it is mentioned that
prepared in written form and letter as
electronic signature has legitimate
well as its document, according to the
legal power and legal consequence as
law, should be prepared in notary deed
long as it meets the preconditions as
form or in the deed made by the deed
mentioned in the Article 11 of ITE:
preparing officials.
1. Data
Considering the provision in
consistent
of
with
the
electronic
regulation
signature
preparation is related to only the
the Article 5 clause 4 of ITE Law,
signed;
when the parties want to enter into a
2. Data
of
electronic
signature
during
electronic
formal agreement, the agreement will
preparation
be considered as illegitimate until it is
signing
poured into written form manually in
authority of the signed only;
process
is
under
the
the form of either privately made deed
3. Any change in Electronic Signature
(akta bawah tangan) or authentic deed.
occurring after the signing time can
The examples of formal agreement are,
be known;
among others, peace agreement, vide
4. Any
change
in
Electronic
Article 1851 BW; Grant Agreement,
Information
vide Article 1682 BW; and trade
Electronic
agreement
signing time can be known;
with land
object,
and
trading deed of a plot of land, vide
212
related
signature
to
the
after
the
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5. There is a certain way used to
protocol) maintenance, whether or not
identify who the signed is;
it has been maintained well.
6. There is a certain way to show that
the
signed
has
agreed
corresponding
In
judicature
practice,
the
the
judges’ attitude in viewing some
electronic
evidence of electronic document is
information.
varied, some argue that electronic
Furthermore
in
Article
12
document evidence is the legitimate
clause 2 of ITE Law it mentioned that
evidence
everyone
Electronic
conventional evidence in Procedural
signature is obliged to protect the
Law and some other argue that
security of Electronic Signature used.
electronic
The presence of the electronically
supporting evidence should support
signing
general
other evidence to increase the judge’s
preconditions of evidence authenticity.
conviction. Thus, referring to the first
Those preconditions include firstly, the
argument, electronic document can be
material authenticity; it is the clarity of
equated with the privately-made deed
subjective and objective condition,
evidence, in which the privately-made
particularity, competency, clear time
evidence is recognized by the parties
and place, confidentiality, traceability,
as
data
verifying
involved
is
in
related
completeness
to
guaranty
or
and
as
supplement
document
having
formal
power,
serves
and
but
not
to
as
material
having
information security, the copy should
verification power to outside unless it
be as same as the original one, copy of
is registered to public employees.
deed. Secondly, formal authenticity, it
Having formal authentication power is
is consistent with the form specified by
defined as what poured into the deed is
law, including certain media and
indeed
format, reading, whether or not the
corresponding to the actual condition,
evidence has been read; time inclusion,
however,
whether or not time security has been
District Court environment, there are
written
(time-stamping),
some judges arguing that electronic
document and its substance security,
document can be equated with letter
and whether or not the historical data
evidence, when electronic document,
on the deed document has been
for example in the form of Facebook
obvious; log or notary-journal (notary
can be downloaded and printed. But
correctly
213
expressed
in
by
practice
the
in
parties
Cirebon
PROCEEDINGS ICTESS UNISRI 2017 ISSN: 2549-094X
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electronic document can be equated
categorized into letter evidence and the
with
the
position of electronic document in a
electronic document is in e-mail form
civil case trialing cannot stand alone
that has been supported by 2 (two)
but should be supported by other
other evidences. Such the argument
evidence. In principle, as long as there
has been included into the verdict by
is a relationship to other supporting
the Judge Chamber of Cirebon District
evidence, the electronic document is
Court’s verdict over the love scandal
reasonable to use, and in examining the
using Short Message Service (SMS) as
electronic document evidence, expert
evidence that is then transformed into
witness can be employed, but in
printout that is in turn considered as
practice in Sidoarjo District Court,
letter evidence. Similarly, in other
some judges stated that no case is
case, when a husband catches his wife
trialed with electronic document as
sending email to other man with undue
evidence.
content, the judge considers this email
In
the
supposition
when
as an evidence of supposition.
the
attempt
of
using
electronic document, it should be
In the case of labor dispute in
understood that ITE Law prohibits
Industrial Relation Court (Pengadilan
actions/conducts as governed in the
Hubungan Industri = PHI), Surabaya,
provision of Article 27-37 mentioning
East Java with Register Number:
that when there is a misuse of
28/G/2010/PHI.Sby, one party used
information technology, particularly
electronic document evidence in the
electronic document, harmful to others,
form of broadcast in Metrotvnews.com
any lawsuit can be filed civilly or
and the judge considered the electronic
criminally as specified in Articles 38,
document as supposition, in which its
39, and 45-52 of ITE Law.
verification power should remain to be
The provision of ITE Law
supported by 2 (two) witnesses who
governing many cybercrime and other
saw directly the incidences as same as
laws governing specifically any form
those
in
the
broadcast
of
of
Meanwhile,
in
Telecommunication Law, Pornography
Sidoarjo District Court, there are some
Law) cannot be applied without the
judges
electronic
presence of Civil Code because the law
document evidence remains to be
beyond Penal Code qualifies the crime
Metrotvnews.com.
arguing
that
214
cybercrime
(e.g.,
PROCEEDINGS ICTESS UNISRI 2017 ISSN: 2549-094X
Vol 1, Number 1, January 2017
only and threatens the perpetrator of
apply its criminal procedural process
crime and special definition (e.g.
or formal criminal law. 2
Considering
definition of electronic document,
about
the
the
case,
the
telecommunication) while the general
explanation
criminal
definition should refer to the Penal
elements of gambling is that the
Code as general rule.
elements of everyone and without
Some cases have occurred, for
entitlement should refer to Book I of
example, the online gambling case as
Penal Code, while the definition of the
governed in ITE Law. The criminal
elements of distributing, transmitting,
provision threatening the perpetrator of
or allowing the access to information
crime is Article 27 clause (2) reading
or electronic document refer to ITE
“Everyone deliberately and without
Law. Meanwhile, the definition of
entitlement distributing, transmitting or
whoever in Article 27 clause (2) of ITE
allowing the access to Information or
Law can be defined not only as
Electronic
containing
individual (human being) but also
gambling” is threatened with the
corporation, and the definition of
punishment as mentioned in Article 45
gambling content element refers to
clause (1) that everyone fulfilling the
Book II of Penal Code, in Article 303
elements as intended in article 27
and 303 bis.
Document
clauses (1), (2), and (3) or (4) with
imprisonment maximally 6 (six) years
D. Conclusion
and fine maximally IDR 1,000,000,000
1. In civil case using electronic evidence,
the evidence mentioned in article 1866
(one billion rupiah).
In applying ITE law, in fact,
BW is the legally legitimate evidence
there are many related legal provisions
as long as it is obtained through a
because ITE law applies special law
lawful process. in civil case using
beyond Penal Code governing the
electronic evidence, the evidence that
crime and its consequence, so general
is legitimate and can be revealed in the
provision to apply ITE law should
verification
refer to the general law, Penal Code, to
based on Article 5 clause (1) and (2) of
process
is
determined
2
Widodo, Hukum Pidana di Bidang
Teknologi Informasi Cybercrime Law: Telaah
Teoritik dan Bedah Kasus, Aswaja Pressindo,
Yogyakarta, 2013, p.141.
215
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Vol 1, Number 1, January 2017
Law Number 11 of 2008 about
before the trial as long as the
Information
and
information contained within it can be
Information
confirming
information
and
Electronic
or
that
accessed, displayed, and ensured for its
electronic
completeness
and
accountable
for
document can be considered as a
thereby informing a condition. In
legitimate evidence in verification
addition, the position of electronic
process particularly in civil case using
document is equalized to the document
electronic evidence. The evidence is
prepared on a piece of paper as
the expansion of evidence as regulated
mentioned in General Explanation of
and enacted in the civil case law
ITE Law.
corresponding to the provision of
E. Recommendation
Article 1866 BW.
Considering the conclusions
2. That the regulation on the verification
above, the following recommendations
principle included in Article 163 of
can be given:
HIR jo Article 1865 BW determining
1. There should be an attempt of
that everyone stating as being entitled
understanding among the society,
with an object or pointing to an event
particularly the law enforcers, on
to confirm his/her right, or denying
the
others’ right, he/she should verify it,
principle
seems to keep being enacted and
development
unchanged after the enactment of ITE
document use.
Law, but it emphasizes that the parties
should
ensure
verification
relation
of
to
the
electronic
2. There should be an attempt of
understanding among the society,
electronic document derives from the
particularly the judges, on having
electronic system electronic system
the
complying with the precondition based
verification power of electronic
on legislation and after the enactment
document
of ITE law, there is an addition of
enactment
evidence
Indonesia’s Law Number 11 of
the
the
in
of
existing
and
that
importance
recognition
of
shared
idea
about
evidence
of
the
after
the
Republic
of
electronic document as a legitimate
2008
evidence determining that electronic
Electronic Transaction (ITE Law).
about
Information
document or its print out is the
legitimate evidence that can be used
REFERENCES
216
and
PROCEEDINGS ICTESS UNISRI 2017 ISSN: 2549-094X
Vol 1, Number 1, January 2017
R. Subekti, Pokok-Pokok Hukum Perdata,
Jakarta: P.T. Intermasa, 2005, Cet.
XXXII.
Sudikno Mertokusumo, Hukum Acara
Perdata Indonesia Edisi Ke 7,
Yogyakarta: Liberty, 2006, Cet. I.
Munir Fuady, Teori Hukum Pembuktian
(Pidana dan Perdata), PT. Citra
Aditya Bakti, Bandung, 2006.
M. Yahya Harahap, Hukum Acara Perdata
: Tentang Gugatan, Persidangan,
Penyitaan, Pembuktian dan Putusan
Pengadilan, Sinar Grafika, Jakarta,
2005.
M.
Yahya
Harahap,
Pembahasan
Permasalahan
dan
Penerapan
KUHAP : Pemeriksaan Sidang
Pengadilan, Banding, Kasasi dan
Peninjauan Kembali, Sinar Grafika,
Jakarta, 2002.
Widodo, Hukum Pidana di Bidang
Teknologi Informasi Cybercrime
Law : Telaah Teoritik dan Bedah
Kasus,
Aswaja
Pressindo,
Yogyakarta, 2013.
R. Subekti dan R. Tjitrosudibio, Kitab
Undang-undang Hukum Perdata,
Jakarta: P.T. Pradnya Paramita,
2005, Cet. XXV.
Retnowulan S dan Iskandar O, Hukum
Acara Perdata Dalam Teori Dan
Praktek, Bandung: C.V . Mandar
Maju, 2005, Cet. X.
R. Soesilo, RIB/HIR Dengan Penjelasan,
Bogor: Politeia, 1995
217
Vol 1, Number 1, January 2017
THE EXISTENCE OF ELECTRONIC EVIDENCE IN VERIFICATION
LAW SYSTEM IN INDONESIA FROM THE JUDGE’S PERSPECTIVE
Dedy Muchti Nugroho, SH, M.Hum
Prof., Dr., Setiono, SH., MS
Prof., Dr., Adi Sulistiyono, SH., MH
Sebelas Maret University
Abstract: To find out the verification of civil case and criminal case in Republic of
Indonesia’s Law No.11 of 2008 about Information and Electronic Transaction.
Conclusions: (1) in civil case using electronic evidence, the evidence that is
legitimate and can be revealed in the verification process is determined based on
Article 5 clause (1) and (2) of Law Number 11 of 2008 about Information and
Electronic Information confirming that information and or electronic document
can be considered as a legitimate evidence in verification process particularly in
civil case using electronic evidence, the evidence is the expansion of evidence as
regulated and enacted in the civil case law corresponding to the provision of
Article 1866 BW. (2) The verification of crime should ensure that the existing
electronic document came from electronic system meeting the requirement based
on the legislation and after the enactment of ITE Law, there is an addition of
evidence and the recognition of electronic document as a legitimate evidence
determining that electronic document or its print out is the legitimate evidence that
can be used before the trial as long as the information contained within it can be
accessed, displayed, and ensured for its completeness and accountable for thereby
informing a condition. In addition, the position of electronic document is
equalized to the document prepared on a piece of paper as mentioned in General
Explanation of ITE Law.
of penal code governing the crime in
A. Introduction
The
crime
in
information
information technology area is commonly
technology sector or called cybercrime or
computer-related
crime
occurs
called cybercrime law.
more
Many factors result in the increased
widely in Indonesia. Cybercrime is human
number of cybercrimes in Indonesia
activity in the cyber space making
including
computer target of crime (e.g. illegal
cybercrime
access, site hacking, illegal interception)
optimal ability of dealing with cybercrime
and human activity using computer as the
and society’s low awareness of cybercrime
target of crime (e.g. credit falsification,
eradication.
pornography via internet). The provision
207
rudimentary
law,
law
provision
enforcer’s
of
less
PROCEEDINGS ICTESS UNISRI 2017 ISSN: 2549-094X
Vol 1, Number 1, January 2017
One important factor making the
Considering
this
phenomenon,
there
cybercrime eradication failed in Indonesia
should be a research on the application of
is
on
Information and Electronic Transaction
cybercrime, the types of cybercrime, the
Law to the verification of civil and
danger of cybercrime, punishment threat
criminal cases.
inadequate
understanding
and
Verification, according to Subekti1,
cybercrime law enforcing mechanism.
is the attempt of convincing the judge
Adequate understanding on cybercrime
concerning the actual law between the
will encourage everyone to choose any
parties in the case. In this case, between
way to avoid cybercrime. The perfect
evidences and the crime indicted. In
understanding on cybercrime for will help
constructing this legal relation, each party
the law enforcer deal with cybercrime
uses evidence to verify their proposition
repressively through applying the penal
suggested. For that reason, the judge is
code in information technology sector.
reasonable
for
the
cybercrime
perpetrator
to
accept
the
parties’
Law
propositions (public prosecutor or the
Number 11 of 2008 about Information and
indicted) without limited by the use of
Electronic
evidence as long as the proposition meets
Republic
of
Indonesia’s
Information
began
to
be
proposed to the Legislative Assembly
the principles of logics.
(DPR RI) on May 17, 2006 and was
ratified since its enactment date of April
B. Problem Statement
21, 2008 consisting of 13 (thirteen)
1. How is the Republic of Indonesia’s
chapters and 54 (fifty four) articles so that
Law Number 11 of 2008 about
in juridical view, the cybercrime case
Information and Electronic Transaction
occurring should be trialed based on
applied to the verification of civil
Information and Electronic Transaction
case?
Law as long as its crime elements met the
2. How is the Republic of Indonesia’s
provision of a crime as mentioned in the
Law Number 11 of 2008 about
law, but in fact many cases that should be
Information and Electronic Transaction
trialed
applied to the verification of criminal
based
on
Information
and
case?
Electronic Transaction Law processed in
criminal judicature based on the law other
than
Information
and
C. Discussion
Electronic
11
Subekti, Hukum Pembuktian, Jakarta :
Pradnya Paramita, 1983, pp. 7-8.
Transaction Law by the law enforcer.
208
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information
1. The Legal Power of Electronic
Evidence Based on Civil Procedural
Law and Law Number 11 of 2008
about Information and Electronic
Transaction
Speaking of electronically
document
evidence
itself.
and
of
In
other
Legislations
such
procedural
law,
the
civil
case
using
information technology. Information
and or electronic document can be
as
considered as electronic evidence. In
addition to be determined as the
11 of 2008.
expansion
Electronically verifying process
of
by keeping considering the provision
in
the
2008
about
Information
and
Electronic Transaction, the evidence
of legitimate evidence in Article 1866
can be interpreted extensively so that
BW. In the civil case using electronic
the intended information or electronic
evidence, the evidence mentioned in
document has the same legal power as
article 1866 BW is the legitimate
the one in ordinary criminal case as
evidence as long as it is obtained
governed in Article 1866 BW. The
through lawful process. In civil case
evidence in the form of information
using electronic evidence, the legal
and or electronic document can be
evidence can be suggested in the
considered as a supposition as a
verification process based on Article 5
legitimate evidence as governed in
clauses (1) and (2) of Law Number 11
Information
evidence
Article 5 clause (2) of Law Number 11
electronic evidence as well, in this case
about
of
procedural law enacted based on the
should be supported by a variety of
2008
civil
is the one produced and containing
as
Republic of Indonesia’s Law Number
of
law
electronic evidence, the evidence used
governed in the Civil Procedural Law
and
procedural
1866 BW.
electronic
verification
in
consistent with the provision of Article
evidence being investigated based on
provision
enacted
particularly
document in civil case using electronic
the
as
the expansion of the one as governed
The
to information technology such as
or
considered
electronic evidence. The evidence is
the one involving many things related
and
be
electronic
process particularly in civic case using
electronically verification process is
information
can
or
legitimate evidence in the verification
verification is inseparable from the
electronic
and
Article 1866 BW. It is because the
and
supposition evidence is considered as
Electronic Transaction confirming that
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legitimate when it is obtained from the
At a glance, this principle seems to be
Judge’s knowledge.
very easy but in practice it is very
When
information
or
difficult to determine appropriately
electronic document is considered as
who should be imposed with an
the letter evidence as governed in
obligation to verify something. As the
Article 1866 BW either directly
or
criterion, it can be suggested that not
through extensive law interpretation,
only one party is obliged to verify but
information
electronic
also it should be considered the
document is the supposition evidence,
casuistically according to the concrete
so that the validity of electronic
condition and the verification should
evidence can be seen clearly and it can
be imposed to the less incriminated
be proposed as the evidence in the
party.
and
or
and
process of verifying the civil case
Considering the provision of
using electronic evidence, so that the
Article 1 number 1 of ITE Law,
verification process conducted in this
electronic transaction is defined as a
civil case with electronic evidence has
lawful deed conducted by and using
the same legal power as the one in
computer
ordinary criminal case as governed in
media. In the attempt of conducting
Article 1866 BW juncto Article 5
electronic
clauses (1) and (2) Number 11 of 2008
always uses electronic document as
about
their
Information
and
Electronic
Transaction.
and/or
other
transaction,
foundation
to
electronic
the
parties
make
legal
relations. Related to the presence of
Other
evidences
as
electronic transaction using electronic
witness information and expert opinion
document, in ITE Law there is a
are
principle determining that everyone
important
evidence
such
in
the
electronically verifying process in civil
stating
case
evidence
existing right or rejecting others’ right
although it is not the product of or does
(the similar principle existing in article
not contain information technology
163 HIR juncto Article 1865 BW)
element. The article 163 HIR of
based on the presence of electronic
Indonesian
information
using
electronic
civil
procedural
law
the
right,
confirming
and/or
the
electronic
mentions the principle of “everyone
document should ensure that electronic
proposing something should verify it”.
information
210
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electronic
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document existing derives from the
document evidence. Considering the
electronic system complying with the
provision of Article 5 clause 1 of ITE
precondition based on legislation.
Law, it is mentioned that electronic
The precondition determined in
information
and
or
electronic
ITE Law is the one pertaining to the
document and or its print out is the
presence
transaction
legitimate legal evidence. Furthermore,
and/or electronic document in which
Article 5 clause 2 of ITE Law
the subject or the system should be
mentions that electronic information or
certified by:
electronic document as intended in
of
Firstly,
electronic
credibility
certification
clause 1 is the expansion of legal
will
undertake
evidence and corresponding to the
function
including
procedural law enacted in Indonesia.
registration and physical authentication
Thus, ITE Law has determined that
on business performer, development
electronic document and or its print out
and
are the legitimate evidence and the
institution
that
administrative
management
of
credibility
certificate and preparing the suspended
expansion
of
certificate list as determined in Article
according
to
10 of ITE Law.
enacted in Indonesia so that they can
Secondly, the organizer of electronic
be used as evidence before the trial.
certification
administrative
involve
undertaking
function
registration
and
that
legitimate
the
evidence
procedural
law
Then, Article 5 clause 3 of ITE
may
Law
physical
mentions
information
and
that
electronic
or
electronic
authentication on the applicant, the
document is stated as legitimate when
development
of
it uses electronic system corresponding
public lock or private lock, the
to the provision existing in ITE Law.
management of electronic certificate
Thus, the use of electronic document
and suspended certificate list, as
as the legitimate evidence when using
mentioned in Articles 13 and 14 of ITE
an electronic system corresponding to
Law.
the provision as mentioned in Article 6
and
management
of ITE Law stating that electronic
2. The validity of Electronic Document
document is considered as legitimate
Verification Based on ITE Law
In the enactment of ITE Law,
as long as the information included can
there is a new regulation on electronic
be accessed, displayed, ensured for its
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completeness
and
accountable
for
Government Regulation No. 24 of
thereby informing a condition. In
1997 about Land Registration.
addition, it is the electronic document,
In the attempt of preparing an
the position of which can be equalized
agreement or electronic transaction
with the document made on a piece of
poured into electronic document, the
paper as mentioned in the General
validity of such electronic document
Explanation
should contains electronic signature; it
of
ITE
Law.
This
provision is an exception as intended
is
in Article 5 clause 4 of ITE Law
concerning the most important element
mentioning that several types of
in preparing a deed as governed in
electronic document cannot be the
Article 1867 BW juncto Article 1874
legitimate evidence when they are
BW and the preconditions of legitimate
related to its preparation, in which
agreement as governed in Article 1320
letter, according to the law, should be
BW. Furthermore, it is mentioned that
prepared in written form and letter as
electronic signature has legitimate
well as its document, according to the
legal power and legal consequence as
law, should be prepared in notary deed
long as it meets the preconditions as
form or in the deed made by the deed
mentioned in the Article 11 of ITE:
preparing officials.
1. Data
Considering the provision in
consistent
of
with
the
electronic
regulation
signature
preparation is related to only the
the Article 5 clause 4 of ITE Law,
signed;
when the parties want to enter into a
2. Data
of
electronic
signature
during
electronic
formal agreement, the agreement will
preparation
be considered as illegitimate until it is
signing
poured into written form manually in
authority of the signed only;
process
is
under
the
the form of either privately made deed
3. Any change in Electronic Signature
(akta bawah tangan) or authentic deed.
occurring after the signing time can
The examples of formal agreement are,
be known;
among others, peace agreement, vide
4. Any
change
in
Electronic
Article 1851 BW; Grant Agreement,
Information
vide Article 1682 BW; and trade
Electronic
agreement
signing time can be known;
with land
object,
and
trading deed of a plot of land, vide
212
related
signature
to
the
after
the
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5. There is a certain way used to
protocol) maintenance, whether or not
identify who the signed is;
it has been maintained well.
6. There is a certain way to show that
the
signed
has
agreed
corresponding
In
judicature
practice,
the
the
judges’ attitude in viewing some
electronic
evidence of electronic document is
information.
varied, some argue that electronic
Furthermore
in
Article
12
document evidence is the legitimate
clause 2 of ITE Law it mentioned that
evidence
everyone
Electronic
conventional evidence in Procedural
signature is obliged to protect the
Law and some other argue that
security of Electronic Signature used.
electronic
The presence of the electronically
supporting evidence should support
signing
general
other evidence to increase the judge’s
preconditions of evidence authenticity.
conviction. Thus, referring to the first
Those preconditions include firstly, the
argument, electronic document can be
material authenticity; it is the clarity of
equated with the privately-made deed
subjective and objective condition,
evidence, in which the privately-made
particularity, competency, clear time
evidence is recognized by the parties
and place, confidentiality, traceability,
as
data
verifying
involved
is
in
related
completeness
to
guaranty
or
and
as
supplement
document
having
formal
power,
serves
and
but
not
to
as
material
having
information security, the copy should
verification power to outside unless it
be as same as the original one, copy of
is registered to public employees.
deed. Secondly, formal authenticity, it
Having formal authentication power is
is consistent with the form specified by
defined as what poured into the deed is
law, including certain media and
indeed
format, reading, whether or not the
corresponding to the actual condition,
evidence has been read; time inclusion,
however,
whether or not time security has been
District Court environment, there are
written
(time-stamping),
some judges arguing that electronic
document and its substance security,
document can be equated with letter
and whether or not the historical data
evidence, when electronic document,
on the deed document has been
for example in the form of Facebook
obvious; log or notary-journal (notary
can be downloaded and printed. But
correctly
213
expressed
in
by
practice
the
in
parties
Cirebon
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electronic document can be equated
categorized into letter evidence and the
with
the
position of electronic document in a
electronic document is in e-mail form
civil case trialing cannot stand alone
that has been supported by 2 (two)
but should be supported by other
other evidences. Such the argument
evidence. In principle, as long as there
has been included into the verdict by
is a relationship to other supporting
the Judge Chamber of Cirebon District
evidence, the electronic document is
Court’s verdict over the love scandal
reasonable to use, and in examining the
using Short Message Service (SMS) as
electronic document evidence, expert
evidence that is then transformed into
witness can be employed, but in
printout that is in turn considered as
practice in Sidoarjo District Court,
letter evidence. Similarly, in other
some judges stated that no case is
case, when a husband catches his wife
trialed with electronic document as
sending email to other man with undue
evidence.
content, the judge considers this email
In
the
supposition
when
as an evidence of supposition.
the
attempt
of
using
electronic document, it should be
In the case of labor dispute in
understood that ITE Law prohibits
Industrial Relation Court (Pengadilan
actions/conducts as governed in the
Hubungan Industri = PHI), Surabaya,
provision of Article 27-37 mentioning
East Java with Register Number:
that when there is a misuse of
28/G/2010/PHI.Sby, one party used
information technology, particularly
electronic document evidence in the
electronic document, harmful to others,
form of broadcast in Metrotvnews.com
any lawsuit can be filed civilly or
and the judge considered the electronic
criminally as specified in Articles 38,
document as supposition, in which its
39, and 45-52 of ITE Law.
verification power should remain to be
The provision of ITE Law
supported by 2 (two) witnesses who
governing many cybercrime and other
saw directly the incidences as same as
laws governing specifically any form
those
in
the
broadcast
of
of
Meanwhile,
in
Telecommunication Law, Pornography
Sidoarjo District Court, there are some
Law) cannot be applied without the
judges
electronic
presence of Civil Code because the law
document evidence remains to be
beyond Penal Code qualifies the crime
Metrotvnews.com.
arguing
that
214
cybercrime
(e.g.,
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only and threatens the perpetrator of
apply its criminal procedural process
crime and special definition (e.g.
or formal criminal law. 2
Considering
definition of electronic document,
about
the
the
case,
the
telecommunication) while the general
explanation
criminal
definition should refer to the Penal
elements of gambling is that the
Code as general rule.
elements of everyone and without
Some cases have occurred, for
entitlement should refer to Book I of
example, the online gambling case as
Penal Code, while the definition of the
governed in ITE Law. The criminal
elements of distributing, transmitting,
provision threatening the perpetrator of
or allowing the access to information
crime is Article 27 clause (2) reading
or electronic document refer to ITE
“Everyone deliberately and without
Law. Meanwhile, the definition of
entitlement distributing, transmitting or
whoever in Article 27 clause (2) of ITE
allowing the access to Information or
Law can be defined not only as
Electronic
containing
individual (human being) but also
gambling” is threatened with the
corporation, and the definition of
punishment as mentioned in Article 45
gambling content element refers to
clause (1) that everyone fulfilling the
Book II of Penal Code, in Article 303
elements as intended in article 27
and 303 bis.
Document
clauses (1), (2), and (3) or (4) with
imprisonment maximally 6 (six) years
D. Conclusion
and fine maximally IDR 1,000,000,000
1. In civil case using electronic evidence,
the evidence mentioned in article 1866
(one billion rupiah).
In applying ITE law, in fact,
BW is the legally legitimate evidence
there are many related legal provisions
as long as it is obtained through a
because ITE law applies special law
lawful process. in civil case using
beyond Penal Code governing the
electronic evidence, the evidence that
crime and its consequence, so general
is legitimate and can be revealed in the
provision to apply ITE law should
verification
refer to the general law, Penal Code, to
based on Article 5 clause (1) and (2) of
process
is
determined
2
Widodo, Hukum Pidana di Bidang
Teknologi Informasi Cybercrime Law: Telaah
Teoritik dan Bedah Kasus, Aswaja Pressindo,
Yogyakarta, 2013, p.141.
215
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Law Number 11 of 2008 about
before the trial as long as the
Information
and
information contained within it can be
Information
confirming
information
and
Electronic
or
that
accessed, displayed, and ensured for its
electronic
completeness
and
accountable
for
document can be considered as a
thereby informing a condition. In
legitimate evidence in verification
addition, the position of electronic
process particularly in civil case using
document is equalized to the document
electronic evidence. The evidence is
prepared on a piece of paper as
the expansion of evidence as regulated
mentioned in General Explanation of
and enacted in the civil case law
ITE Law.
corresponding to the provision of
E. Recommendation
Article 1866 BW.
Considering the conclusions
2. That the regulation on the verification
above, the following recommendations
principle included in Article 163 of
can be given:
HIR jo Article 1865 BW determining
1. There should be an attempt of
that everyone stating as being entitled
understanding among the society,
with an object or pointing to an event
particularly the law enforcers, on
to confirm his/her right, or denying
the
others’ right, he/she should verify it,
principle
seems to keep being enacted and
development
unchanged after the enactment of ITE
document use.
Law, but it emphasizes that the parties
should
ensure
verification
relation
of
to
the
electronic
2. There should be an attempt of
understanding among the society,
electronic document derives from the
particularly the judges, on having
electronic system electronic system
the
complying with the precondition based
verification power of electronic
on legislation and after the enactment
document
of ITE law, there is an addition of
enactment
evidence
Indonesia’s Law Number 11 of
the
the
in
of
existing
and
that
importance
recognition
of
shared
idea
about
evidence
of
the
after
the
Republic
of
electronic document as a legitimate
2008
evidence determining that electronic
Electronic Transaction (ITE Law).
about
Information
document or its print out is the
legitimate evidence that can be used
REFERENCES
216
and
PROCEEDINGS ICTESS UNISRI 2017 ISSN: 2549-094X
Vol 1, Number 1, January 2017
R. Subekti, Pokok-Pokok Hukum Perdata,
Jakarta: P.T. Intermasa, 2005, Cet.
XXXII.
Sudikno Mertokusumo, Hukum Acara
Perdata Indonesia Edisi Ke 7,
Yogyakarta: Liberty, 2006, Cet. I.
Munir Fuady, Teori Hukum Pembuktian
(Pidana dan Perdata), PT. Citra
Aditya Bakti, Bandung, 2006.
M. Yahya Harahap, Hukum Acara Perdata
: Tentang Gugatan, Persidangan,
Penyitaan, Pembuktian dan Putusan
Pengadilan, Sinar Grafika, Jakarta,
2005.
M.
Yahya
Harahap,
Pembahasan
Permasalahan
dan
Penerapan
KUHAP : Pemeriksaan Sidang
Pengadilan, Banding, Kasasi dan
Peninjauan Kembali, Sinar Grafika,
Jakarta, 2002.
Widodo, Hukum Pidana di Bidang
Teknologi Informasi Cybercrime
Law : Telaah Teoritik dan Bedah
Kasus,
Aswaja
Pressindo,
Yogyakarta, 2013.
R. Subekti dan R. Tjitrosudibio, Kitab
Undang-undang Hukum Perdata,
Jakarta: P.T. Pradnya Paramita,
2005, Cet. XXV.
Retnowulan S dan Iskandar O, Hukum
Acara Perdata Dalam Teori Dan
Praktek, Bandung: C.V . Mandar
Maju, 2005, Cet. X.
R. Soesilo, RIB/HIR Dengan Penjelasan,
Bogor: Politeia, 1995
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