Legality of Criminal Court through Teleconferences

Harli Siregar

and Topo Santoso

PhD in Law Program, Graduate School, Universitas Sumatera Utara (USU-Medan), Medan, North Sumatera, Indonesia

PhD in Law Program, Graduate School, Universitas Indonesia (UI-Jakarta), Jakarta, Indonesia

Keywords: Legitimacy, Court, Teleconference.

Abstract: Covid-19 Pandemic era now has brought fundamental changes in the order of human life, including in the

matter of criminal law enforcement. The principle of the presence of the accused or witnesses or experts and

the parties physically involved in the trial to realize material truth must be changed by an electronic system.

However, it raises problems related to its validity. In this paper, a research using the qualitatively normative

juridical approach by analyzing the concept of law in relation to real conditions is proposed. To overcome

this problem a strong legal umbrella is needed so that the electronic system in criminal court can be applied

in certain situations. Stronger and more detailed regulations in the form of technical guidelines and their

implementation for law enforcement officers are urgently needed. Moreover, it is necessary to change the

way of thinking that is more honest and constructive for law enforcement officials in its implementation.

1 INTRODUCTION

Technology is something that cannot be separated

from life in the current era of globalization. World

civilization is related to the advancement of

information technology covering all elements of life.

Globalization since the beginning of the 20th

century, marked when there was a transportation and

electronic revolution that spread and accelerated

trade between nations, in addition to the increase and

speed of traffic of goods and services[1]. This

condition makes distance, space and time no longer

a significant obstacle.

The information technology revolution began

since the invention of the computer in its

development is a world of its own commonly known

as cyberspace. The progress and development of

technology, especially telecommunications, multi

media and information technology (telematics) will

ultimately change the organizational structure and

social relations [2]. Telematics convergence is in the

form of organizing an electronic system based on

digital technology known as the net [3].

In the practice of an integrated criminal justice

system in Indonesia, each subsystem makes efforts

to trace evidence and evidence to carry out court

decisions in law enforcement where the authority of

the investigator performs an investigative function,

the public prosecutor prosecutes, the Judge hears

and drops the verdict / criminal as well as the

Correctional Institution carry out the decision /

criminal. The flow of the law enforcement process

has the same goal, namely how material truth can be

obtained to realize the legal goals, namely justice,

certainty and legal benefit.

The successful prosecution of criminal cases is

inseparable from the quality of the investigation by

the investigator. A case can be proven in a court of

law that is inseparable from the ability of the

prosecutor as the public prosecutor to understand

and scrutinize the results of investigating

investigators. The public prosecutor must be able to

state the problem in a good, high quality and

describe the material actions of the criminal

offender. In the trial process the Prosecutor as the

Public Prosecutor can submit any evidence and

evidence presented at the hearing to convince the

judge and obtain material truth.

If judging from the mode of legal thought, the

integrated criminal justice system in Indonesia is

part of the civil law system that is different from the

common law system. Civil law starts from one

general principle to another general principle while

common law starts from case to case. Cases are the

main source of common law, while codified laws

and laws are the parts that make up civil law.

Common law lawyers think within the scope of their

particular groups and legal relationships, while civil

law practitioners think within the scope of the

Siregar, H. and Santoso, T.

Legality of Criminal Court through Teleconferences.

DOI: 10.5220/0010294800003051

In Proceedings of the International Conference on Culture Heritage, Education, Sustainable Tourism, and Innovation Technologies (CESIT 2020), pages 69-74

ISBN: 978-989-758-501-2

regulations that are enforced at the time, which have

been codified or which are based on laws that can be

applied to the situation at hand [4].

The electronic system becomes a global legal

realism that goes to all the pluralist world legal

system families. There is a basic dilemma that is

exposed in a pluralist perspective: the law is likely to

never fully satisfy all expectations [5].

Indonesian criminal law regulates the limitations

of evidence that can be submitted in court as stated

in article 184 of the Criminal Procedure Code and

evidence outside of the Criminal Procedure Code,

namely Law No. 11 of 2008 as amended by No. 19

of 2016 concerning Information and Electronic

Transactions ("IET law"). In the general provisions

of the IET law it is known that the types of

electronic data such as writing, photos, sounds,

images are electronic information while the types of

electronic information such as writing, photos,

sounds, images stored on flash disks that can be

opened through computer devices are electronic

documents [6 ]

In its development, many laws governing

criminal procedural law also regulate electronic

evidence, although they differ substantially in their

categorization. Corruption criminal acts, for

example, categorize electronic evidence as evidence

of evidence, while laws on money laundering,

eradication of terrorism, place electronic evidence as

independent evidence. Recognition of electronic

evidence as legal evidence is not only the court's

obligation to realize it but also constitutional rights

of the community [7].

What has been described above can certainly be

done in normal circumstances and situations while

the world in particular law enforcement is shaken by

the Covid-19 pandemic situation. This has

consequences when everyone is required to do

physical and social distancing. All human activities

are advised to be carried out indirectly (undirect

connecting) but through technological means

including criminal trials in court.

If seen from an extensive interpretation,

information outside the court should be carried out

provided the information provided is live and not

delayed broadcast. E-court proceedings are rather

difficult to implement because there are certain

things where the parties must be formed by meeting

in person and in order to strengthen the beliefs of

judges [8].

This view is very reasonable and realistic if it is

related to Article 154 paragraph (1) of the Criminal

Procedure Code which states that the presiding judge

orders that the defendant be summoned and if he is

in custody, he is confronted in a free state. The

words "called in" mean that the defendant must be

physically present before the trial or court. In

addition, Article 185 paragraph (1) of the Criminal

Procedure Code says witness statements as evidence

are statements made at court hearings. The question

is what is meant by a "court hearing". In judicial

practice, that which is carried out daily by law

enforcers, primarily prosecutors and judges and legal

advisors (where the parties do not allow to be

physically present before the trial) is very reasonable

to be carried out and continued. In this paper, trials

through teleconferences in the criminal justice

system and their validity from the point of proof of a

criminal act need to be regulated in a legal umbrella.

2 METHOD

This study uses a normative juridical approach that

is qualitative by analyzing legal concepts related to

real conditions in the field. As an illustration of how

the court practice continues even though in a Covid-

19 pandemic situation by means of teleconference as

in Table 1 in the form of an online recapitulation of

court and phase II related to general criminal cases

from 30 March to 29 June 2020. Recapitulation of

criminal proceedings in the field of criminal acts

online at the high prosecutor's office in southern

Sumatra from 30 March 2020 to 30 June 2020 given

in Table 2.

Table 1: Online List of Common Crimes Cases.

No. Mon

Kejari/

Cabjar

Online

Court

Prosec

utor

Phas

e II

1 Marc

h -

April

4.062 57.736 12.984 305

2 May 3.502 46.295 13.622 328

3 June 4.974 62.686 18.525 620

4 July 824 10.195 3.075 114

total 13.362 176.912 48.206 1.37

Table 2: Online Court at Kejaksaan Tinggi Sumatera

Selatan.

Distr

ict

Attor

ney's

Offic

Media

Tota

Appl

icati

Skyp

Appl

icati

Cisc

Web

exA

pplic

ation

CESIT 2020 - International Conference on Culture Heritage, Education, Sustainable Tourism, and Innovation Technologies

Pale

mban

- - - 3473 44

Lubu

kling

gau

68 1458 - - 1526 10

3. Lahat - 67 346 - 413 6

Muar

Enim

520 - - 715 11

Musi

Bany

uasin

- 1370 - - 1370 12

Ogan

Ilir

(Oi)

26 597 - - 623 16

Ogan

Kom

ering

Ilir

(Oki)

- 1204 17 - 1221 10

Ogan

Kom

ering

Ulu

(Oku

)

- - 510 - 510 10

Ogan

Kom

ering

Ulu

Selat

(Oku

34 - 246 - 280 5

10.

Ogan

Kom

ering

Ulu

Timu

- - 628 - 628 7

11.

Penu

kalA

babL

emat

angIli

(Pali)

59 - 122 - 181 7

12.

Empa

tLaw

ang

- - 175 - 175 3

13.

Pagar

Alam

- 27 - 201 5

14.

Bany

uasin

20 654 32 897 1603 12

15.

Prabu

mulih

- 111 634 - 745 10

5981 2737 897

13.6

This research took place in the legal area of the

High Prosecutor's Office in South Sumatra by using

a normative juridical approach by photographing

how court regulations in legislation to technical

regulations in relation to literature and regulatory

studies. This research is qualitative in nature by

conducting interviews, asking for the views of law

enforcement officials in the field including the

defendants to test the validity of trials conducted by

means of teleconfren.

3 RESULTS AND DISCUSSIONS

3.1 Criminal Court

The co-19 pandemic that is happening now has

brought about a change in the order of human life,

be it political, economic, social, cultural, including

law. Habits that occur in society totally change. As

social beings, humans always live together in social

relationships by meeting or face to face, but the

pandemic has broken the habit and created new

habits for human safety.

Criminal law policy as part of legal politics aims

to realize good regulations in accordance with the

conditions and situations in society through the

authorized institution to establish desired regulations

that are expected to be used to express what is

contained in society and to achieve what is desired. -

tell [9]. The use of criminal law policy can be

interpreted as the politics of criminal law in an effort

to create criminal law in order to function, play a

role or work in realizing law enforcement in

overcoming crimes, especially crimes in the

electronic field.

In terms of legislation policy up to now there has

not been any explicit regulation in the legislation

regarding trials which are carried out through

teleconferences. In Law No. 8 of 1981 concerning

the Criminal Procedure Code has not found rules

about the portion of the trial that is run online with

an electronic system but only manually where the

parties are physically present at the trial. In the

criminal justice system Indonesia does not recognize

what is called a criminal trial through

teleconference, but in its development this is done in

court practice. The judges still use their respective

interpretations related to the examination of

witnesses through the means of teleconference.

In 2002 for the first time the Indonesian Supreme

Court granted permission to examine witnesses by

means of teleconference, namely when BJ. Habibie

gave testimony to the suspect Akbar Tanjung in the

corruption case of Bulog's misappropriation of non-

budgetary funds. If you look at the provisions in the

Criminal Procedure Code both in article 185 and

article 160, witnesses must be present in court to

Legality of Criminal Court through Teleconferences

provide information, but in its development there are

always obstacles such as the distance of the witness

so far, security and health factors of the witness.

This condition is certainly contrary to the Criminal

Procedure Code which requires a witness: Facing

himself in court, being sworn in or promising,

Providing information based on what he saw, heard

or experienced before the court. Witness

examinations conducted by teleconference are

increasingly common, such as in the case of Abu

Bakar Ba'asyir.

Although the Criminal Procedure Code has not

yet regulated the use of teleconferences (electronic

means), there are regulations that can be used as a

basis, namely: Article 9 paragraph (3) of Law no. 13

of 2006 concerning witness and victim protection

which says that witnesses and / or victims as referred

to in paragraph (1) can also hear their testimony

directly through electronic means accompanied by

an authorized official. This provision certainly has a

condition that witnesses and / or victims feel that

they are in a very big threat and must be heard

directly (live) not in the form of delayed broadcasts.

In addition, Article 27 of Law No. 1 of 2002

concerning the eradication of criminal acts of

terrorism has set evidence other than those stipulated

in the Criminal Procedure Code also provides an

extension of the existence of electronic evidence.

Thus, the trial by means of teleconference both

in practice and legislation also exists but is still

partial and limited because it is only related to

witness and / or victim information.

3.2 Legality of Criminal Trials

If in practice the trial examination has been carried

out through teleconference and has also been given

space in the provisions of the legislation partially,

but it is still limited to examining witnesses and / or

victims. The question is what about the examination

of the defendant. The current situation in the Covid-

19 pandemic conditions is very very different from

the trial conditions as stated above because in a

pandemic condition physical and social distancing is

required so that both witnesses and victims including

defendants and law enforcement officials may not

meet in a room as required in normal trial.

The big issue is how the trial will take place,

whether it should be paused until the government

announcement about the condition of the pandemic

ends, how the detention period for the defendants

detained, etc. These questions arise and become a

separate dilemma because what if the trial were

conducted online both at the examination of

witnesses and victims as well as defendants in a

different and virtual room, would it be considered

legal without legal basis.

In practice there is a debate related to online

trials via teleconference because Article 160

paragraph (1) of the Criminal Procedure Code

requires that witness examinations be carried out in

court proceedings while online examinations have

not been regulated. In addition, Article 153

paragraph (1) of the Criminal Procedure Code

stipulates that trials in court must be open to the

public except for certain cases as well as debates on

the potential lack of objectivity of judges in deciding

cases.

The above debates and arguments are reasonable,

but the trial must continue because social dynamics

and the emergence of crimes and legal violations

persist even after following health protocols during a

pandemic.

To overcome this vacancy, law enforcement

officials have entered into a cooperation agreement

between the Supreme Court, Attorney General's

Office, and the Ministry of Law and Human Rights

of the Republic of Indonesia on Monday, April 13,

2020 with Number: 402 / DJU / HM.01.1 / 4/2020,

Number: KEP-17 / E / Ejp / 04/2020, Number: PAS-

08.HH.05.05 of 2020 concerning the implementation

of the trial by teleconference. Article 5 which

regulates the conduct of proceedings by

teleconference states:

• The parties conduct socialization in their

respective ranks to carry out the terms of the

cooperation agreement;

• The parties prepare the completeness of the

trial by teleconference at their respective

positions;

• In terms of the technical implementation of

the trial by teleconference, the parties

coordinate with one another for the smooth

running of the trial while still observing the

principle of justice which is fast, simple and

low cost and open to the public;

• In handling certain cases, a closed trial can be

conducted according to the provisions of the

applicable laws and regulations;

• During the trial, taking into account the rights

of the accused, the victim and witness as well

as the trial of the child, the identity and face of

the child may be known by those who have

the authority in accordance with the laws and

regulations;

• Teleconference hearings take into account the

situation and conditions of the place, including

CESIT 2020 - International Conference on Culture Heritage, Education, Sustainable Tourism, and Innovation Technologies

the time difference if the trials are held in

different areas.

Teleconference hearings are based on various

provisions of each institution with a temporary

nature and in an emergency or force for certain

reasons such as the Covid-19 pandemic.

Trials by means of teleconference are a model of

the birth of modern justice and can be reached across

borders, but it must be limited that criminal justice is

aimed at realizing material truth, trials by

teleconference must also be aimed at fulfilling these

material truths. The validity of a trial by

teleconference can be tested based on Article 6 of

Law No. 11 of 2008 concerning information and

electronic transactions that have confirmed several

conditions that must be met in the form of

accessible, displayed, guaranteed integrity, and

accountability.

These four conditions must be drawn up and

implemented at the same time in each trial process.

Accessible means it can be published or seen by

many people through electronic means. Can be

displayed means the process is online and direct, not

broadcast delayed. Guaranteed integrity means that

the trial process with the electronic system takes

place in full from the beginning to the end and not

pieces of images or video. Whereas accountability

can mean that the trial process is correct and is

carried out at the time determined based on the

determination of the judge.

Laws are built and created for the benefit of

humans, including electronic systems in criminal

trials, especially if carried out in a state of coercion

and legal proceedings have not been regulated.

Actions or legal actions of law enforcement officers

can be seen from three aspects, namely position,

authority, and procedure. These three aspects in the

current co-19 pandemic situation allow the

electronic system to be used in the temporary

criminal justice system so that the use of electronic

media in criminal trials can be justified or legal.

The data used in this study is only a small part

that shows how many criminal trials are conducted

in Indonesia. For the South Sumatra Prosecutor's

Office (168 prosecutors), they have conducted

13,664 online trials in only four months. The trial is

conducted in two directions where the Prosecutor,

Judge and witness are in court while the defendant

and the defendant's legal counsel are in Lapas, three

directions where the Prosecutor is in the Prosecutor's

Office, the Judge is in the Court and the Defendant

is in prison, four directions where the Prosecutor is

in the Prosecutor's Office, the Judge is in the Court,

the Witness is examined from the Police office and

the defendant is in Lapas and, five directions where

the Prosecutor is in the Prosecutor's Office, the

Judge is in the court, the Witness is examined from

the Police office, the Defendant is in Lapas and the

defendant's legal counsel is in his law office.

Overall, trials with electronic systems are mostly

conducted with three-way systems.

The trial system, which is carried out both

manually and electronically, is an evidentiary

framework aimed at realizing material truth.

Criminal proceedings are part of the verification

process. There are several systems of proof theory,

among others, based on Bewijstheorie positive

reality test, evidence based on Conviction Intime,

evidence based on Conviction Intime on Raisonnee

Laconviction, verification based on Negative

Wettelijk Bewijstheorie [8]. Indonesia adheres to the

fourth system in which the accused or defendant is

guilty of at least two legal pieces of evidence plus

the judge's conviction. The words "two valid pieces

of evidence" are usually implemented through the

trial to verify whether the evidence obtained by the

investigator and brought by the Public Prosecutor to

the front of the trial can be judged as evidence and

the process mechanism is known as the trial process.

If all this time the trial has been conducted face-to-

face and manually face to face, with the Covid-19

pandemic conditions carried out electronically

through teleconferencing facilities both with video

conferencing, zoom applications, cisco webex

applications, and skype applications.

4 CONCLUSIONS

The existence of an electronic system by means of

teleconference in the conduct of criminal

proceedings has become a legal necessity due to the

demands of dynamics and the situation of the

community even though it is not regulated in the

existing legal provisions. The position of the

electronic system by means of teleconference in

criminal law enforcement has been recognized and

implemented in the world of judicial practice or

trials on the basis of a joint policy between law

enforcement officials to meet the needs of the

community and overcome the legal vacuum.

Recommendations:

The renewal of the Criminal Procedure Code by

utilizing the moment of the planned changes in the

Criminal Procedure Code to place the electronic

system in criminal trials for certain situations or

circumstances as a formal legal umbrella is needed,

Legality of Criminal Court through Teleconferences

including preparing standardization of online trial

administration.

Culture set of law enforcement officers in the

framework of quality criminal law enforcement and

responsibility through teleconference facilities or

electronic systems so that legal objectives can be

achieved well is needed.

REFERENCES

Didik M. Arief Mansur., 2009. Cyber Law Aspek Hukum

Teknologi Informasi, Bandung, Aditama, p. 2.

Ibid, p. 21-22.

Makarim, Edmon., 2017. Pengantar Hukum Telematika,

Suatu Kompilasi Kajian. PT. Raja Grafindo Persada,

Jakarta, p. 4.

De Cruz, Peter., 2017. Perbandingan Sistem Hukum,

Common Law, Civil Law and Socialist Law.

Diterjemahkan Narulita Yusron, Penerbit Nusa Media,

p. 53-54.

Menski, Werner., 2017. Perbandingan Hukum dalam

Konteks Global. Sistem Eropa, Asia dan Afrika

(Diterjemahkan oleh M. Khozim. Penerbit Nusa

Media, p. 795.

https://www.mahkamahagung.go.id/id/artikel/3048/eksiste

nsi-dokumen-elektronik-di-persidangan-perdata.

diakses tanggal 12 Desember 2019.

Sirait, Ningrum Natasya., Focus Group Discussion,

Permasalahan Pengaturan Alat Bukti Elektronik,

Dalam Sistem Hukum Di Indonesia, Penelitian

Eksistensi Bukti.

Elektronik Dalam Sistem Peradilan Indonesia,

Diselenggarakan oleh Mahkamah Agung RI Badan

Penelitian dan Pengembangan Pendidikan dan

Pelatihan Hukum dan Peradilan, Hotel Adimulia,

Medan 4 Maret 2020.

Alvi Syahrin, FH-USU, Bahan Perkuliahan Sitem

Peradilan, Program S-3 USU Medan, 6 Maret 2020.

Arief, Barda Nawawi, Rampai, Bunga., 2008. Kebijakan

Hukum Pidana, Perkembangan Penyusunan Konsep

KUHP Baru, Edisi ke-1. Kencana Prena Media

Group, p. 22.

Hamzah, Andi., 2008. Hukum Acara Pidana Indonesia.

Sinar Grafika, p. 251-257.

CESIT 2020 - International Conference on Culture Heritage, Education, Sustainable Tourism, and Innovation Technologies