ELECTRONICS INFORMATION & ELECTRONIC DOCUMENTS

USE OF ELECTRONIC INFORMATION AND ELECTRONIC DOCUMENTS AS EVIDENCE

BY: H. SANTHOS WACHJOE P, SH.MH

A. INTRODUCTION

As part of the citizens are aware of and compliance with the law, of course, would make every individual in the community will prioritize the settlement of any dispute or matter in a peaceful way to always give priority to the principle of deliberation. Nevertheless, there will always be a case or dispute that can not be resolved by deliberation and consensus, so that should be resolved in court.
Settlement of a case through trial would require proof that telling techniques so that what is wanted can be granted by the Court. For those seeking justice, all kinds of methods of proof would be conducted, with the purpose of the argument into a proven and can get what is requested or demanded. Therefore, the argument of rigor in evidence in a case, is absolutely necessary, so do not waste time and effort in vain.
The legal process in general can be seen as aligning the interests of society and the result is justice or a fair law. A good law is the law that is fair and right, have validity and binding, obliging and can be forced to run to create a sense of justice, harmony and common good of the objectives of the law itself

B. ISSUES

From the things that have been disclosed above, there are problems as follows:
1. How does the system of evidence in court?

2. How tahapaan-stage use of Electronic Information and Electronic Documents as evidence in court?

C. EVIDENCE IN TRIALS

In the law of events both criminal procedural law and civil law, when someone is going to prove a proposition both the Prosecution will prove the arguments of the indictment, and the defendant would deny the proposition indictment of the Public Prosecutor or the plaintiff that would prove the argument of the lawsuit and the Defendant which would deny the lawsuit's argument of the Plaintiff, will try to do it by way of evidence in the trial. Yahya Harahap said that, "The proof is the central point examination of the case in court"

1.      EVIDENCE IN CRIMINAL LAW

Inside the Criminal Procedure Law, has regulated how verification can be done in court and how judges behave in the decision terhadapp a case. It is stipulated in Article 183 of Law No. 8 of 1981 on the Law of Criminal Procedure Code (Criminal Code) which states, "The judge must not convict someone unless at least two valid evidence he gained confidence that a crime actually occurred and that the defendant is guilty of doing it ". In the explanation of Article 183 of the Criminal Procedure Code only mentions "This provision is to ensure the upholding of truth, justice and legal certainty for someone", so as to understand the provisions of Article 183 of the Criminal Procedure Code. May the provisions of Article 183 of the Criminal Procedure Code is adopted the provisions of Article 294 HIR, which is considered as evidence by law negatively.

The provisions of Article 183 of the Criminal Procedure Code expressly that it takes a minimum of two (2) evidence that can be the judge before the verdict grip, which then needs to be understood the provisions of Article 184 paragraph (1) of the Criminal Procedure Code valid evidence, namely:
a. Witness testimony;

b. Expert testimony;

c. letter;

d. instructions;

e. Description defendant;

This paper will only limit the discussion on evidence in the form LETTER or CLUE, as mentioned in Article 184 paragraph (1) letter c and d of the Criminal Procedure Code.

Regarding the letter, has been regulated in Article 187 of the Criminal Procedure Code which states, "The letter as referred to in Article 184 paragraph (1) letter c, made on oath or affirmed by the oath is:
a. Minutes and other papers in the official form created by the competent public authority or made in front of him, which contains information about the events or circumstances that heard, seen or personally experienced, along with the reasons clear and firm about that statement;

b. Letters made under the peraturn perundanga law or a letter made by officials of the things included in the management of which are the responsibility and are destined for proving something on any circumstances;

c. A certificate from an expert that contains an opinion based on his expertise about something or something formally requested state thereof;

d. Another letter can only apply if there hubunganna with the contents of another evidentiary tool;

In the explanation of Article 187 of the Criminal Procedure Code, only the letter b are getting the following explanation: "What is meant by the letter made by officials, including the letter issued by a tribunal competent to it".
Regarding the strength of evidence letter, Yahya Harahap divides into two aspects, namely in terms of the formal and material terms. In terms of formal, evidence has no probative value formal letter perfect, by itself the form and content of the letter:

a.       Is correct, but can be disabled by other evidence;

b.       All parties can no longer judge the perfection of form and preparation;

c.        Also no longer able to judge the truth of the information contained in it all the authorities of the contents of the information can not be disabled by other evidence;

d.      Fill in the information contained in it can only be disabled by other evidence in the form of evidence statements of witnesses, expert testimony or testimony from the defendant.

In terms of material, the strength values ​​pembuktin documentary evidence as well as the value embuktian witness testimony and evidence from expert testimonies, they both have the strength of evidence which is free, so the judge is free to assess the strength of proof on the grounds:
a. The principle of the criminal case investigation process is to search for the material truth or the real truth (material waarheid) instead of formal correctness, so the judge freely assess the truth contained in the written evidence;

b. The principle of the judge's conviction, the judge can only impose punishment to the defendant if they have obtained a minimum of two (2) valid evidence;
c. The principle of a minimum threshold of proof in the sense that although the formal perfection melekt properties on documentary evidence, but the written evidence is not sufficient as evidence that stand-alone and still need the support of other evidence;

Regarding the evidence in the instructions as contained in Article 188 of the Criminal Procedure Code which states:

(1)       Directive is actions, events or circumstances that because of the correspondence, both between one another, as well as the criminal act itself indicates that there has been a criminal offense and the perpetrators;

(2)       Directive referred to in paragraph (1) may only be obtained from:

a.       Witness testimony;

b.      letter;

c.       Description defendant;

(3)       on the strength of evidence of a hint in each particular state is done by the judge with the wise and prudent, after an inspection with the precision and accuracy based on conscience.

(4)       Explanation in article 188 Criminal Procedure Code only mentions even this quite clear, so that in practice the necessary precautionary depth and rigor of each judge terhadapp evidence in the form instructions. And terhadapp evidence proving the value of the power user, also is free in the sense of:

a.       Judges are not bound to the truth rapprochement is realized by the user;

b.      Instructions as evidence, can not stand alone prove the guilt of the defendant and remain bound to the principle of a minimum threshold of proof;

2.      EVIDENCE IN CIVIL CASE

In the process of hearing a civil case, in terms of proving there are things that are more complicated and complex than the proceedings of criminal matters, as it pertains to dig out the truth that tempus (time) can not be infinite length, not just in a matter of days or months, but even in a matter of years. Other things that affect the complexity is proving a civil case as presented by Yahya Harahap, namely:

1.      Factors Adversarial System (Adversarial System), a system which requires that gives equal rights to the litigants to ask each other the truth of each and have the right to deny the truth of each proposed counterparty in accordance with the adversarial process (adversarial proceedings);

2.      In principle, the position of the judge in the substantiation process in accordance with the adversarial system is weak and passive, in the sense of not actively seek and find the truth out aa proposed and presented by the parties at the hearing.

In civil cases, the main priority is to seek the truth for formal (formeel waarheid), so that it opens the possibility that the parties will submit evidence that is not true and there is an element of proof lies in diajuakan to trial. However, it is also necessary scrutiny of the Supreme Court Decision No.3136 K / Pdt / 1983 which says, "No civil court banned seek and find the truth of the material, but if the material truth can not be found in the civil court, the judge legitimately take a formal decision based on truth . "

The general guidelines in evidence a civil case is outlined in Article 163 HIR, which reads, "He who says he has the right or he mentioned something actions to strengthen thereto or to deny the right of another person, then that person must prove the existence of such rights or their events. "this provision is similar to the provisions of Article 263 or Article RBg 1865 Book of the Law of civil Law (civil Code), so that about pembuktiaan in a civil case can be summarized as follows:
• Who mendalil something right, charged to him shall be evidence to prove that didalilkannya rights and

• Who filed rebuttal proposition in order to paralyze the rights of other parties argued, her dipikulkan the burden of proof to prove the arguments of the denial;

More about proof in a civil case, known as the Minimum Limit Definition of terms that can be interpreted:

• A number of valid evidence that at least should be fulfilled so that it has the value evidence the strength of evidence to support the truth argued or presented;

• If the evidence presented at trial did not reach the minimum, the evidence has no value the strength of evidence sufficient to prove the truth of the proposition or events or statements expressed.

Benchmark determines the minimum limit, not specified on the quantity factor but determined to quality factor, for example, is in a civil case, the plaintiff presented witnesses a number of 100 (one hundred) people, but during the trial, a witness who really knows about the dispute case between the Plaintiff by the Defendant only 1 (one) witnesses, the judge can ignore the statements of 99 (ninety nine) other witnesses. So that, in a civil case in terms of evidence, the role of the judge actually raised in the sense of the judge who will assess the quality of the verification conducted by the parties, whether the evidence given really have quality as evidence or not.

It is inevitable that in a civil case will involve more evidence in the form of letters, which can be classified as follows:

a.       Authentic deed;

b.      Under the Deed of hand and;

c.       Unilateral or unilateral deed of acknowledgment;

D. ELECTRONIC INFORMATION AND ELECTRONIC DOCUMENTS AS EVIDENCE
Before discussing the Electronic Information and Electronic Documents, then first you need to know Indonesia has had Law Number 11 Year 2008 on Information and Electronic Transactions, which specifically regulate the implementation of the information and documents electronically, including regulating the management of evidence purely electronic.

I. DEFINITIONS OF ELECTRONIC INFORMATION

Regarding Electronic Information. Article 1 paragraph 1 of Law No. 11 of 2008 on Information and Electronic Transactions states that "Electronic information is one or a set of data eletktronik, including, but not limited to text, sound, pictures, maps, plans, photographs, elektronic data interchange ( EDJ), electronic mail (electronic mail), telegram, telex, telecopy or the like, letters, signs, angak, access codes, symbols or perforation that have been processed that has meaning or can be understood by people who are able to understand it. "

Before knowing about the meaning of the Electronic Document, we need to understand the sense of COMPUTER CRIME and COMPUTER RELATED CRIME. Both are terms that are similar but not the same, the Computer Crime (computer crimes) are crimes using computers as the main tool to take action to crimes, such as defacement (the conversion of the pages of a site illegally), denial distributed of service (make a system not runs or does not function properly after the overrun of data by the many computers that have been infected and become reboot network), keylogging (recording every activity of typing on the keyboard and the application is displayed on the screen), identity theft (theft of important data from people target), intrusion (illegal entry into a system) and many others, while the Computer Related crime (crime Related to Computer) is all kinds of traditional crimes such as theft, pornography, robbery, murder, corruption, narcotics and others that in the crime there is evidence in the form of electronic equipment such as mobile phones and computers used by the offender to communicate or store data related to the planning, the process and the proceeds of crime.

II. MEANING OF ELECTRONIC DOCUMENTS

After knowing the meaning of the Electronic Information, then we also need to know the meaning of the Electronic Document. What is meant by the Electronic Document is as stipulated in Article 1 paragraph 4 which states, "Electronic Document is any electronic information created, forwarded, sent, received or stored in the form of analog, digital, electromagnetic, optical, or the like that can be seen, displayed and / or heard via computer or system Eletktronik including but not limited to text, sound, images, map design, picture or the like, hurug, signs, numbers, access codes, symbols or perforation that have a meaning or significance or can be understood by people are able to understand ".

Although it is a new thing but in the realm of criminal law, the use of electronic information has been applied particularly in the provisions of Article 26 A of Law No. 20 of 2001 on Corruption Eradication, which mentions "Legal evidence in the form of instructions referred to in Article 188 paragraph (2) of Law No. 8 of 1981 on criminal Proceedings, specifically to corruption can also be obtained from: 1. other evidence in the form of information uttered, sent, received, or stored electronically with optical devices or something similar to it; and 2. documents, namely any recorded data or information that can be seen, read or heard that may be issued with or without the help of a facility, either on paper or any physical material other than paper, or recorded electronically, which the form of text, sound, pictures, maps, plans, photographs, letters, signs, figures or perforations that have meaning. Further, in the explanation mentioned the term "electronically stored" for example, data stored in the micro-films, Compact Disk Read Only Memory (CD-ROM) or Write Once Read Many (WORM). While the definition of "optical device or similar to it" in this verse is not limited to the data link electronics (electronic data interchange), electronic mail (e-mail), telegram, telex and facsimile. "From the things that often tidank sticking in the handling of corruption cases often involve electronic information, then the use of electronic information as evidence in the trial in Article 5 of Law No. 11 of 2008 that state:

(1)   Electronic Information and / or Electronic Document and / or the prints constitute valid evidence;

(2)   Electronic Information and / or Electronic Document and / or printout referred to in subsection (1) is an extension of the valid evidence in accordance with the Law of Procedure applicable in Indonesia;

(3)   Electronic Information and / or Electronic Records declared valid when using the Electronic Systems in accordance with the provisions stipulated in this Law;

(4)   Provisions on Electronic Information and / or Electronic Documents referred to in paragraph (1) shall not apply to:

a.       The letter, according to the Act must be made in writing;

b.      Letter along with the documents that under the Act must be made in the form of Deed or Deed made by Officer Deed.

Technological development today has given new nuances in the field of evidence in the trial. The evidence presented at the hearing, at this time, not just limited to the written evidence, the evidence of witnesses, but also has expanded the use of evidence in the form of digital documents, either in the form of discs (CD, VCD, DVD) as well as the other evidence in the form of writing -tulisan in social media and other electronic devices.
The Ministry of Communications and Information itself has classified digital evidence that refer to the Scientific Working Group on Digital Evidence, 1999, among other things:

• E-mail address E-mail (electronic mail);

• File Word Processor / Spreadsheet;

• Source Code software;

• File the form Image (jpeg, tip, etc.);

• Web Browser Bookmarks, Cookies;

• Calendar, to - do list.

III. TERMS OF ELECTRONIC INFORMATION AND ELECTRONIC DOCUMENTS AS EVIDENCE

Neil Muhammad El Himam Digital Evidence states that can be sourced at:

1) Computers, consisting of:

a) Email;

b) Digital Image;

c) Electronic Document;

d) Spreadsheets;

e) Log chat;

f) Software Haki illegal and other materials;

2) Hard Disk, which consists of:

a) Files, either active, deleted or in the form of fragments;

b) Metadata File;

c) File Slack;

d) Swap File;

e) Information System, which consists of Registry, Log and Configuration Data;

3) Another source, comprising:

a) Cell, in the form of SMS, dialed number, Call Sign, Number Credit / Debit Card, Email Address, Number Call Forwarding;

b) PDAs / Smart Phones, which consists of all listed in ditambar Cellular Phone contacts, eta, images, passwords, documents and others;

4) Video Game;

5) GPS Device containing rutes / These;

6) Digital Camera, which contains photos, video and other information that may be stored in a memory card (SD, CF etc.).

However, because by their nature natural digital evidence is very inconsistent, then the digital evidence can not be directly used as evidence for the trial, so it takes a standard that digital evidence can be used as evidence in persidangang aat, namely:

1.      Acceptable, ie the data should be able to be accepted and used by law from the interests of the investigation to the interests of justice;

2.      First, that the evidence must relate to kejdian / case and not engineering;

3.      Complete, that evidence can be said to be good and complete if in it there are many clues that could help the investigation;

4.      Trustworthiness, that evidence may say things going on behind it, if the evidence is to be believed, then the investigation process will be easier, and this requirement is a MUST.

Law Number 11 Year 2008 on Information and Electronic Transaction itself requires the following minimum requirements:

1.      Can display back electronic information and / or electronic documents in full accordance with the retention period specified by legislation;

2.      Can protect the availability, integrity, authenticity, confidentiality, and keteraksesan electronic information in the implementation of the electronic systems;

3.      Can be operated in accordance with the procedures or instructions in the implementation of the electronic systems;

4.      Equipped with procedures or instructions announced by language, information, or symbols that can be understood by the parties concerned with the implementation of the electronic systems; and

5.      Having a sustainable mechanism to keep the novelty, clarity and accountability procedures or instructions.

Then, in Act No. 11 of 2008 on Information and Electronic Transactions, mentioned in the Terms formal set out in Article 5 paragraph (4) of the Act ITE, namely that information or Electronic Document is not a document or letter that legislation must be in the form written. While the material requirements set forth in Article 6, Article 15 and Article 16 of Law ITE, which is in essence the Information and Electronic Documents must be guaranteed their authenticity, integrity, and its availability. To ensure the fulfillment of the requirements of material is, in many ways it takes digital forensics. (Sitompul, 2012).

In connection with the Digital Forensic, an ABSOLUTE TERMS that must be done so that the electronic documents can be used as evidence of the start of the investigation, investigation, prosecution and trial, as well as in civil court proceedings. Without going through the Digital Forensic, then an Electronic Document can not be used as evidence because it can not guarantee the validity of the Electronic Document.

IV. DIGITAL Forensic

Although a judge we do not have to master in depth about Digital Forensic, but at least we know the definition, function and workings of Digital Forensic. It should be understood, too, that as human beings, a computerized system in the world is also no perfect (NO SYSTEM IS PERFECT), which can be interpreted that the higher level of understanding of science and technology in the computer field, it will be easier offenders looking for weaknesses of a system of electronic and non-electronic.

Digital Forensic can be interpreted as a field of specialization computer science and technology that have a significant position to do inverstigasi cases of computer crime and / or computer related crime. Therefore Digital Forensic necessary as a means of applying the provisions of Article 6 of Law No. 11 of 2008 on Information and Electronic Transactions which states, "In case there is no other rule than that stipulated in Article 5 (4) which requires that the information should be shaped written or original, Electronic information and / or Electronic Document considered valid throughout the information contained in it can be accessed, displayed, guaranteed integrity and accountability so that explains a state ". In the explanation of Article 6 says, "During this form of writing identical to the information and / or documents on paper only, whereas in fact the information and / or documents may ituangkan into any media, including electronic media. Within the scope of the Electronic Systems with a copy of the original information is no longer relevant to distinguish because Electronic Systems basically operates in a manner that resulted in a doubling of the original information can not be distinguished with the original ". Therefore, it needs an understanding of the fundamentals in Digital Forensic doing so can be gained confidence that an Electronic Information and / or Electronic Records can really be trusted as evidence, particularly as evidence in court.

V. STAGES OF DIGITAL Forensic

One of the duties of a judge is to assess the evidence presented at trial, the trial court either criminal or civil matters. Necessary austerity and prudence in assessing the evidence presented at trial, especially the evidence in the form of Electronic Information and / or electronic documents, so that we get the belief that the evidence in the form of Electronic Information and / or Electronic Documents filed in court is a tool evidence that can be used to prove a state of a case.

Basically to Digital Forensic requires a special education and training which produce CERTIFICATION of all who followed the education and training of the Digital Forensic. Not everyone understands and experts in the field of computer reliable datau can perform Digital Forensic and in persidanganpun, when asked EXPERTS which will explain menegani Digital Forensic, must first be asked about the records academic to be related to Computer Science and CERTIFICATION of EXPERT concerned, if EXPERT does not have an academic record related to Computer Science and has a Certification of Digital Forensic, the opinions expressed at the hearing, be dismissed.

It should also be understood, though APPLICATION TOOLS regarding Digital Forensic can be obtained by doing DOWNLOAD of sites on the Internet, will be the one who will be EXPERTS in the trial, still must be someone who has the Certification of Digital Forensic. Regarding Certification of Digital Forensic itself, for in Indonesia, until now only be obtained from Forensic Digital training conducted by the Police MEBES, otherwise it can only be obtained from the training held abroad as in Britain or the United States.

Digital Forensic Inside, there are three (3) basic stages that must be done by people who do Digital Forensic. 3 (three) stages are:

1)      WRITE PROTECT, which can be interpreted as LOCKING DATA ORIGIN of Electronic Information and / or Electronic Records before performing Digital Forensic. Write Protect done so DATA ORIGIN will be done Digital Forensic no change, either increase, decrease or deletion of data;

2)      forensic IMAGING, which can be interpreted as an action to obtain similar data from DATA ORIGIN or known as clonning. Forensic Imaging is done terhadapp DATA ORIGIN already in - WRITE PROTECT, of Forensic Imaging will be obtained DATA ARE IDENTICAL with ASAL called IMAGE DATA FILE. National Police itself there Kapuslabfor Regulation No. 1 Year 2014 on Standard Operating Proceedur (SOP) in conducting Forensic Imaging. ;

3)      VERIFIYING, which can be interpreted as a stage to assess the results of Forensic Imaging, ie data on - clonning must be identical with the DATA ORIGIN. To find identical or NOT IDENTICAL, can be seen from the value of the IMAGE FILE HASH.

Of the three stages, then in court, the judge may ask about STEPS EXPERTS from DIGITAL forensic performed during the process of inquiry and investigation. If EXPERT presented in the run Digital Forensic no through three stages, then ketenrangan EXPERT must be disregarded because of the implementation of the Digital Forensic is not in accordance with the stages that should have been due if the Digital Forensic not be done by following the three stages mentioned above, the results of DATA IMAGE FILE NOT iDENTICAL DATA ORIGIN as possible with the addition, reduction or elimination DATA ORIGIN. If in fact that the trial terngkap ORIGINAL DATA been erased, then pelru also questioned whether EXPERTS Digital Forensic been doing stage mencarai DATA ORIGIN already erased or known as the DATA FILE RECOVERY, before making a Digital Forensic 3 stages as previously described.

When in court there is evidence in the form of Electronic Information and / or Electronic Document argued to have through the stages of Digital Forensic but apparently filed DATA IMAGE FILE NOT IDENTICAL with DATA ORIGIN, then the judge would have to rule that evidence.

E. CONCLUSION

If the Electronic Information and / or Electronic Documents filed in the trial is an IMAGE DATA FILE DATA ORIGIN which is identical with, the Electronic Information and / or Electronic Records can be used as legal evidence to prove a case, either criminal or civil. At the hearing criminal cases, evidence in the form of Electronic Information and / or electronic documents, could stand alone as EVIDENCE as stated in Article 5 of Law No. 11 of 2008 or it could be an evidence LETTER or CLUE as stipulated in Article 184 paragraph ( 1) Criminal Procedure Code. Likewise in the trial of a civil case, evidence in the form of Electronic Information and / or electronic documents, could stand alone as EVIDENCE or could as evidence HINT to strengthen the evidence and FACTS LETTER OF WITNESSES.

F. CLOSING

This short article may not be sufficient in understanding the use of Electronic Information and / or electronic documents as evidence in a case, but at least be able to shed some light that in fact there are new things in proving a case and an understanding of how the handling of an Information Electronic and / or electronic documents that can be used as evidence on a case.

G. READING LIST

1.      Neil Muhammad el Himam, Papers on Digital Evidence Investigation in the Process of Evidence, paper presented at the Seminar on Digital Forensics, Semarang, October 24, 2012 Yahya Harahap, DISCUSSION AND IMPLEMENTATION ISSUES Criminal Procedure Code (Hearings, Appeals and Review Cassation), In 2000, Sinar Grafika, Jakarta;

2.      Muhammad Nuh Al-Azhar, DIGITAL FORENSIC (Practical Guide Computer Investigation, Publisher Salemba Infotek, in 2012;

3.      Installation der Computer-Forensik Online-Kursus (Verwendung von Open-Source-Anwendungen), Informationssicherheit Direktion, Generaldirektion Application Information, Ministerium für Kommunikation und Informationstechnologie , im Jahr 2012;

4.      Yahya Harahap, Diskussion und Fragen der Umsetzung Strafprozessordnung (Hearings, Einsprüche und Bewertung Cassation), 2000, Sinar Grafika, Jakarta;

5.      Yahya Harahap, ZIVILRECHT EVENTS über Klage, Versuch, Zwangsvollstreckung, Evidence und Gerichtsentscheidung 2005 Sinar Grafika, Jakarta;

H. LINKS INTERNET

1.      https://sektiekaguntoro.wordpress.com/2014/05/17/informasi-elektronik-dan-dokumen-elektronik-sebagai-perluasan-alat-bukti-dalam-perkara-pidana/, abgerufen 16. Februar 2015;

2.      http://arijuliano.blogspot.com/2008/04/apakah-dokumen-elektronik-dapat-menjadi.html, heruntergeladen 24. Februar 2015;

3.      http://www.hukumonline.com/klinik/detail/cl5461/syarat-dan-kekuatan-hukum-alat-bukti-elektronik, heruntergeladen am 24. Februar 2015;