Ius Constituendum of Electronic Evidence Arrangement in Criminal Procedure Law

Abstract

Electronic evidence as an instrument in proving criminal acts has not been regulated in the Criminal Procedure Code. Currently, electronic evidence is only regulated separately outside the Criminal Procedure Code, of course this is contrary to the negative wettelijk evidentiary system where the evidence that can be used is limited to 5 evidence contained in Article 184 of the Criminal Procedure Code. The existence of differences in the regulation of electronic evidence affects the law enforcement process to be unclear and overlapping, some special criminal regulations state that electronic evidence can stand alone outside the Criminal Procedure Code, while others categorize electronic evidence as an expansion of existing evidence in the Criminal Procedure Code. The existence of this unclear arrangement results in legal uncertainty. On that basis, this research is limited to two subjects, namely, the legal force of electronic evidence and the Ius constituendum of electronic evidence arrangements in the Criminal Procedure Code. Both of these are analyzed normatively using a statutory approach, conceptual approach and comparative approach. The results of this study indicate that currently electronic evidence is only categorized as evidence, not evidence. KUHAP as a reference rule in criminal procedure law must accommodate so that it needs to be revised and include 5 important points in the substance of KUHAP including, (1) electronic evidence; (2) the category of electronic evidence that can be used as evidence; (3) how to take electronic evidence; (4) checking the validity of electronic evidence; (5) the use of electronic evidence. The regulation of electronic evidence is expected to provide legal certainty in the evidentiary process by following technological developments.