by Dharma Na Gara

Criminal Law, denpasar, lawyers in bali, Pengacara di baliNovember 19, 20221 comment 0 Likes

Evidences in Indonesia’s Criminal Law Procedure

Evidences in Indonesia’s Criminal Law Procedure
According to Article 184 paragraph (1) of the Indonesian Criminal Law Procedure (KUHAP/Kitab Undang-undang Hukum Acara Pidana),
A. Witness statements;
B. Expert testimony;
C. Letter;
D. Clue;
E. Statement of the accused/the defendant.

A. Witness Statement
Requirements for a valid witness statement:
1) Must take an oath or promise;
2) Statements of witnesses who are valuable as evidence according to Article 1 number 27 of the Indonesia’s Criminal Procedure/KUHAP:

i. What the witness saw him/herself;
ii. Witness heard him/herself;
iii. What the witness experienced him/herself;
iv. As well as giving the reasons for his/her knowledge.

Regarding this witness statement, there are expansion based on the decision of the Republic Indonesia Constitutional Court Number 65/PUU-VIII/2010 regarding “testimonium de auditu” or hearsay evidence.

3) Witness testimony must be given at a court hearing in accordance with the affirmation of Article 185 paragraph (1) of the Criminal Law Procedure.
4) The testimony of a single witness is considered insufficient (unnus testis nullus testis).
5) The testimony of several witnesses that stand alone without any correlation with one another is just a waste of time.

In term of the exceptions that free a person from the obligation to be a witness, they can be grouped:

1. People who cannot be heard and “can resign”;
2. Those who “could ask for release”;
3. Those who “may be examined without an oath”.

Ad.1 a person whose testimony cannot be heard and who “can resign” is associated with the factor of “kinship” between the defendant and the witness by blood or kinship, contained in Article 168 of the Criminal Law Procedure:

Unless otherwise stipulated in this law, statements which cannot be heard and can withdraw as a witness:

a. Blood relatives or marriage relatives in a straight line up or down to the third degree of the defendant or co-defendant;
b. Relatives of the defendant or co-defendant, mother’s or father’s siblings, also those who are related by marriage and the children of the defendant’s relatives up to the third degree;
c. The husband or wife of the defendant even though they’ve divorced or who are together as defendant.

If it’s linked with Article 169 paragraph (1) of the Criminal Law Procedure:

a. In principle, people who are related by blood, marriage and marital ties with the defendant “cannot” be heard as a witness. They are not allowed to be witnesses, even though they may be heard without an oath (Article 169 paragraph (2) of the Criminal Procedure Code)
b. However, if they “want” to be examined as witnesses to testify under oath, their wish to become witnesses can only be carried out under the condition: “if the public prosecutor and the defendant expressly agree to it”. Means that a person who has a family relationship or marital ties with the defendant as referred to in Article 168 of the Criminal Law Procedure can become a witness if he himself wishes and this wish must be “unequivocally” approved by the public prosecutor and the accused/defendant;
c. On the other hand, even if the public prosecutor or the defendant expressly ask the person to be a witness, if he/she does not wish, thus he/she “cannot be obliged” to be a witness.

ad. 2 Those who can ask to be “released as witnesses”

Based on the provisions of Article 170 of the Criminal Law Procedure, there are a group of people who “can ask to be released” from the obligation to provide testimony as witnesses. Regarding the issue of self-liberation as a witness, but it is not absolute.

Article 170 of the Criminal Law Procedure states:

1) They because of their job, dignity or position are required to keep secrets, can ask to be released from the obligation to provide testimony as witnesses, namely about things that are trusted to them.
2) The judge determines whether all the reasons for the request are valid or not.

ad. 3 Those who “may be examined without an oath”.

According to Article 171 of the Criminal Law Procedure: those who may be examined to give statements without being sworn in/taken an oath are:

a. Children who haven’t fifteen years old either haven’t married;
b. People who have memory ill or mentally ill, although sometimes regain their good memories.

B. Expert Statement

Article 186 KUHAP: Expert testimony is what the expert states in the court. Meanwhile, article 1 number 28 of the Criminal Law Procedure states: expert testimony is information given by a person who has special expertise on the matters needed to enlightened on a criminal case for the purposes of examination.

C. Letter

Article 187 of the Criminal Law Procedure states: the letter as referred to in Article 184 paragraph (1) letter c, made under an official oath or confirmed by oath are:

a. Minutes and other letters in an official form made by the authorized public official or made before him, containing information about events or circumstances that he heard, saw or experienced himself, accompanied by clear and firm reasons regarding the statement he/she made;
b. Letters which made according to the provisions of laws and regulations or letters made by officials regarding matters that are included in the management for which they are responsible and which are intended for the authentication of a situation.
c. A statement from an expert containing an opinion based on his/her expertise regarding a matter or a situation that has been officially requested from him.
d. Another letters which can only be valid if it has correlation with the contents of other evidences.

D. Clue
Regulated in Article 188 of the Criminal Law Code/KUHAP.
(1) Clues are actions, events or circumstances which due to their correspondence, both between one and another, as well as with the criminal act itself, indicate that a criminal act has occurred and who the perpetrator is.
(2) Clue as referred to in paragraph (1) can only be obtained from:

a. Witness statement;
b. Letter;
c. Defendant’s statement.

(3) The evaluation and strength of authentication of a clue in each specific situation is carried out by a judge who is wise and prudent after he has conducted an examination with full accuracy and precision based on his conscience.

E. Statement of the Defendant

It is found in Article 189 KUHAP
(1) The testimony of the defendant is what the defendant stated at the trial regarding the actions he/she had committed or which he/she knew or experienced himself/herself.
(2) The testimony of the defendant which was given outside the trial can be used to help find evidence at trial, as long as the statement is supported by valid evidence insofar as it concerns the matter against which he/she is charged.
(3) The testimony of the defendant can only be used against him/herself.
(4) The testimony of the defendant alone is not sufficient to prove that he/she is guilty of committing the act he/she was charged with, but must be accompanied by other evidence.

Article 40 KUHAP: In the case of being caught red-handed, investigating officer may confiscate objects and tools that are in fact or reasonably suspected to have been used to commit a crime or other objects that can be used as evidence.

Article 42 KUHAP (1) The investigating officer has the authority to order the person who controls the object which can be confiscated, to hand over the goods to him for the purposes of examination and the person who surrenders the goods must be given a receipt.

Apart from the evidences mentioned above, there are also some evidences such as emails, screenshots, videos, photos, etc., that are regulated in the Information and Electronic Transactions Law.

For more information, please consult your problem with us.

Source:
Kitab Undang-undang Hukum Acara Pidana/KUHAP/Indonesian Criminal Law Procedure;
M. Yahya Harahap, S.H., 2009, Pembahasan Permasalahan dan Penerapan KUHAP Pemeriksaan sidang Pengadilan, Banding, Kasasi dan Peninjauan Kembali, Sinar Grafika, Jakarta.