by Dharma Na Gara

denpasar, Hukum Perdata-Civil Law, lawyers in bali, Pengacara di baliNovember 1, 20221 comment 2 Likes

Evidences in Indonesia’s Civil Law Procedure

Evidences in Indonesia’s Civil Law Procedure

Definition of evidence:

Evidence (bewijsmiddel) in various forms and types, which are capable to provide information and explanations about the problems being litigated in court. Evidence is submitted by the parties to justify the argument of a lawsuit or the argument of rebuttal. Based on the information and explanation provided by the evidence, the judge evaluates which party has the most perfect authentication.

Types of evidence in civil cases

Based on the provisions of Article 164 HIR, Article 284 RBg and Article 1866 of the Civil Code, in Indonesia there are 5 (five) main types of evidence in civil case, namely:

1. Letter;
2. Witness;
3. Presupposition;
4. Confession;
5. Oath.

Ad. 1 Letter of Evidence is classified into 3 (three) types, namely:

A. Ordinary Letters

In principle, this ordinary letter was not made with the intention of being used as evidence. However, if the letter is later used as evidence in court due to incidental (coincidentally). For example, love letters, letters related to trade correspondence, notes on the use of money and so on.

B. Authentic Deed

Regarding authentic deeds, it is regulated in Article 1868 of the Civil Code which reads: “An authentic deed is a deed made in the form determined by law by or before a public official authorized to do so (Judges, Notaries, bailiffs, Civil Registry Officers, etc.) who has the authority to do so at the place where the deed was made.

From the explanation of this article, the authentic deed is made by or before an authorized official called a public official. Noted it was made by competent or authorized official and the form/content is not defect.

The power of authentication attached to the authentic deed is the power of perfect and binding authentication which is a combination of several strengths contained in it. If one of the strengths is defect, the authentic deed does not have the value of perfect proof/authentication (volledig) neither binding (bindende).

Concretely, the authentic deed was made purposely for the authentication. Because it is for the authentication, authentic deeds based on the provisions of Article 1868 of the Civil Code can be classified into 2 (two) types, namely: first, deeds made by public employees. This type of deed is commonly referred to by the following terms: official deed, acte ambtelijk, relaas deed or procesverbaal acte. For example, the deed made by notary, sub-district head, clerk, summons of bailiff, judge’s decision and so on are authentic deed made by the public employee. Second, the deed made before a public employee. This type of deed is commonly referred to as the party deed or Acte Partij. In principle, in the aspect of making the party deed, the initiative lies within the parties to create it and public official only listen, witness and write down the agreement. For example, a deed made before a notary regarding an agreement (leasing, buying and selling and so on).

C. Underhand Deed/Ordinary Deed/Akta di Bawah Tangan

The definition of an underhand deed/ordinary deed or in Indonesian language akta di bawah tangan is a deed that is not made by neither before a public official who is authorized to make it, or specifically, as the essence of Article 1874 of the Civil Code, an underhand deed is made by the parties themselves without the assistance of a public employee. For example: Receipts, debt agreements, lease agreements, statement letters, registers, household affairs letters and so on.

The power of authentication of underhand deed/ordinary deed or akta di bawah tangan is not as wide and as high as the degree of authentic deed.

Ad. 2 Witness Evidence:

Regarding witness evidence, it is basically regulated in Article 139-152, Article 162-172 HIR, Article 165-179, Article 306-309 RBg and Article 1895, Article 1902-1908 of the Civil Code.

The most important essence of witness evidence is that in general every event can be proven by testimony, unless the law expressly stipulates otherwise. This exception appears, for example, in the agreement for the establishment of a company between the company itself, it must be proven by a notarial deed (Article 22 of the KUHD).

To a person as witness, in principle, all people who are mature and capable of carrying out legal actions (rechtsbekwaamheid) can become witnesses and are required to testify if requested.

In relation to a person’s obligation to be a witness, there are several provisions that regulated people who cannot be heard as witnesses and can refuse also are asked to be released to testify as detailed in the provisions of Article 145, 146 HIR, Article 172, 173, 174 RBg and Article 1909, 1910 of the Civil Code and several Supreme Court decisions of the Republic Indonesia, namely:

People who cannot be heard as witnesses are:

1. Straight descendants who are bound by blood or marriage relations with one of the litigants. This is also confirmed as the Supreme Court Decision of the Republic of Indonesia Number: 84 K/Sip/1973 dated 25 June 1973 in the case: Karsilah versus 1. Murati, 2. Baeah and 3. Wari.
2. The husband of one of the parties to the litigants even though they divorced. This is in parallel with the Decision of the Supreme Court of the Republic Indonesia Number: 140 K/Sip/1974 dated 6 January 1976 in the case of: 1. Ni Tanjung alias Ni Bukit, 2. Bukit al. I Daha versus I Ngayus; and
3. Children who are not known for certain whether they have reached the age of fifteen and people who are insane even though they sometimes can think sanely. This aspect is also emphasized in the Decision of the Supreme Court of the Republic Indonesia Number: 1409 K/Sip/1975 dated 12 May 1976 in the cases: 1. Umi Kalsum et al., against Roekijah and H. Maskur et al.

However, in certain cases they are capable of being witnesses, even though the litigants consist of blood relatives or by marriage or husband or wife. This is regulated in Article 145 paragraph (2) of HIR and Article 1910 paragraph (2) of the Civil Code and other regulation.

People who can ask to be released/can refuse as witnesses, namely:

1. Brothers and sisters, brother-in-law and sister-in-law of one of the litigants.
2. Families of straight descent and brothers and sisters of the husband or wife of one of the litigants and
3. Everyone based on their position, business or occupation is obliged to keep a secret but only because of the knowledge due to the position, business or occupation that has been entrusted to them.

Basically, if someone become a witness in a civil case, what is explained is only limited to what he/she sees, hears or experienced him/herself. Then each of these testimonies must be accompanied by reasons as to the caused and how he/she knew the things that they’ve explained.

Ad. 3 Evidence of Presupposition (Vermoedens)

The existence of presupposition evidence which is common in doctrine is called the term “vermoedens” or “presumptions” it can be seen that in the examination of civil cases, it is difficult to find evidence of witnesses who have seen, heard or felt the case themselves, so that legal events that must be proven are sought to prove through presuppositions.

From the definition of Article 1915 BW and judicial practice, there are 2 (two) kinds of suspicions, namely:

• Presupposition according to law
• Presupposition according to judge

Ad. 1) presupposition according to law

According to the provision of Article 1916 BW, a statutory presupposition is an assumption which, based on a special provision of the law, is associated with certain actions or certain events. Example: every child born during a marriage gets the husband as the father (Article 250 BW). In this context, it means that the law concludes that from the existence of marriage, the children were born during the marriage due to the husband.

Ad. 2) presupposition according to Judge

Identical to presupposition according to the law, in this context the conclusion drawn from an event is the judge. For example: in the case of a child adoption application where A (applicant) will adopt a child named B. At a trial in the District Court, A explains that the child to be adopted had been taking cared by her for a long time. Later in the trial it turned out that the child had called the applicant “mom”. This gives a presupposition and the judge can draw a presupposition that it is true that the child had been taking cared by the A (applicant).

Ad. 4 Evidence of Confession (Bekentenis Confession)

Basically, a confession/ acknowledgment is a statement in written or oral form from one of the litigants in which the contents justify the opponent’s argument either partially or completely. So concretely, the confession is a one-sided statement and there is no need approval from other party.

According to the doctrinal view, the principle of confession (article 1923 BW) can be divided into 2 (two) types, namely:

Confession before the Judge at the Trial (Gerechtelijke Bekentenis)

Confession before the trial has perfect authentication power (volledig bewijs) and binds the person concerned or through the intermediary of a person specifically authorized for it (Article 174 HIR, Article 311 RBg and Article 1925 BW). In this context it means that the judge must consider the arguments recognized as true and grant the claim based on those arguments.

Confession outside the trial

Confession outside the trial is the opposite of confession in the trial or before the judge as outlined in Article 1925 BW and Article 174 HIR. In the form of confession or statement of “justification” regarding the arguments of the lawsuit or denial as well as rights or facts, but the statement is delivered or uttered outside the trial/court session.

In practice, confession outside the trial can be done in written or oral form and is regulated in Article 175 HIR, Article 312 RBg and Article 1927-1928 BW.

In practice and according to legal science, apart from the 2 (two) kinds of confessions above, there are also 3 (three) other kinds of confessions, namely:

• Pure confession (Aveu pur et Simple): this pure confession is simple in nature and basically justifies all the arguments of the opponent (Plaintiff).
• Qualified confession (Gequaliceerde Bekentenis/Aveu Qualifie): basically, qualified confession is confessions accompanied by partial denial of the opposing arguments.
• Confession with a clause (Geelausuleerde Bekentenis/Aveu Complexe): Basically, a confession with a clause is given by providing additional information that is liberating.

Ad. 5 Oath Evidence

The definition of an oath evidence is a statement that is corroborated in the name of God, with the aim of:

• So that the person who takes an oath in giving statements is afraid of the wrath of God, if he lies;
• Fear of God’s wrath or punishment, is considered a driving force for those who swear to tell the truth.

Evidence of oath can be classified into 3 (three) types, namely:

1. Decisive Oath

In practice, the decisive oath is commonly referred to by the following terms: “dicisoir oath” or “decisoir eed” which is regulated in Article 156 HIR, Article 183 RBg and Article 1930-1939 of the Civil Code. The essential purpose of the decisive oath is to decide cases (litis decisoir), imposed by the judge on one party at the request of his opponent due to the absence of evidence.

2. Complementary Oath

Complementary oaths or commonly referred to by the terms: “addition oath”, “supletoir oath” or “supletoire eed”. This oath is regulated in Article 155 HIR, Article 182 RBg and Article 1940 of the Civil Code and is ordered by the judge to one of the parties if there is just a small amount of evidence against the plaintiff’s claim or to confirm the truth of the defendant’s rebuttal, but the evidence is not sufficient and there is no possibility of adding the incomplete evidence with other evidence to complete the authentication. In such a case, the judge because of his position (ambthalve) can charge one of the parties to take an oath so that the case can be decided.

3. Appraiser’s Oath

In common practice the appraiser oath is referred to by the following terms: “taxatoir oath”, “aestimatoire eed”, “waarderingseed” or “schattingseed”, which is an oath ordered by the judge because of his position to the plaintiff (the plaintiff in the convention/the defendant in the reconvention) to determine the amount of compensation for losses. The imposition of the appraiser oath to the plaintiff is carried out selectively in the meaning that there must be no other way to determine the amount of the claim for compensation and the judge can set a highest limit on the amount (Article 1942 of the Civil Code).

Expert Statement (Deskundigenbericht)

The main essence of expert testimony is to provide an opinion on matters submitted to him in accordance with his expertise and aims to clarify the situation of the case.

Also, there’re other evidences such as email, screenshots, photos and videos etc., which regulated in law of information and electronic transaction.

For more information, please consult your problem with us.

Source:

Lilik Mulyadi, S.H.,M.H., 2005, Hukum Acara Perdata menurut Teori dan Praktik Peradilan Indonesia, Djambatan, Jakarta.

Yahya Harahap, S.H., 2008, Hukum Acara Perdata tentang Gugatan, Persidangan, Penyitaan, Pembuktian dan Putusan Pengadilan, Sinar Grafika, Jakarta.