The Scientific Evidence in Suspect Determination as an Object

Pre-trial

Mahmud Mulyadi

and Marlina

Criminal Law Departement, Faculty of Law, Universitas Sumatra Utara, Indonesia

Keywords: Object Pre-Trial, Suspect Determination, Scientific Evidence

Abstract: Constitutional Court’s verdict number 21/PUU-XII/2014 on 28 April 2015 has expanded the determination

of suspect status as one of the pre-trial hearing objects. This brings an impact on the enforcement of law,

wherein the pre-trial investigation has shifted from a formal aspect to a material aspect (a validity test), and

thus results in the absence of a formal law in Indonesian Criminal Code. The progress of science and

technology has influenced the development of the world of criminal law, especially in the field of evidencing

a crime. The modus operandi of crime has used the means of science and technology, which is done through

cyberspace, cannot be expressed by conventional evidences. Law enforcement officers, need to understand

and apply scientific evidence and request the help of other applied sciences to seek the real truth of criminal

events. Likewise for someone who has been designated a suspect, may use pre-trial efforts to test the validity

of early evidence, including scientific evidence that makes him suspect of a criminal offender.

1 INTRODUCTION

Technology and law are two interplaying elements

that are both influential in the development of society.

On the one hand, technology can be seen as a means

to achieve a certain goal. On the other hand,

technology can also be seen as a human activity. On

the other hand, the law imposes restrictions on the

community to behave and provide order, related to the

use of technology to commit crimes (Sitompul, 2012).

The development of crime is always laced with

advances in science and technology. Often law

enforcement is constrained in the evidence because

the alleged offender has used the virtual world as a

means of his crime. Therefore, conventional

instruments of evidence must be extended as well

with other evidences related to technological

developments, including electronic documents.

The Constitutional Court ruling number 21/PUU-

XII/2014, dated April 28, 2015 has extended the

status of the Suspect as one of the objects of pre-trial.

In addition, in the Constitutional Court Decision it is

stated that sufficient initial evidence in the

determination of the suspect, shall meet "at least two

valid evidences" in the criminal procedure law. The

inclusion of suspect status as the object of this

pretrial, making the shift of pretrial examination

nature from the aspect of formiil to material aspect,

that is to test the validity of the evidence instruments

(Mulyadi, 2018).

The expansion of the suspect status determination

as one of the pre-trial hearing objects pursuant to the

Constitutional Court’s verdict number 21/PUU-

XII/2014 on 28 April 2015 has caused numerous

polemics. The Constitutional Court granted some of

the appeals of corruption convicts for Biomediation

Project case of PT Chevron Bachtiar Abdul Fatah,

one of which is to evaluate pre-trial object provisions

(Determination of a Suspect) that caused polemics

especially after post pre-trial verdict of South Jakarta

District Court that annuls a suspect status for Komjen

(Pol) Budi Gunawan (BG) by Corruption Eradication

Commission (KPK).

The expansion of suspect status determination as

a pre-trial object has impacted on the law

enforcement, in terms of (1) the shift in pre-trial

investigation from a formal aspect to material aspect

(a validity test), and (2) the absence of a formal law

in Indonesian Criminal Code.

The problem of this research is formulating into

question are how are the evidence instruments in the

Criminal Procedure Code (Criminal Procedure Code)

and what is the legal standing of Scientific Evidence

in the Establishment of Suspects as a Pretrial Object.

Mulyadi, M. and Marlina, .

The Scientiﬁc Evidence in Suspect Determination as an Object Pre-trial.

DOI: 10.5220/0010091016171620

In Proceedings of the International Conference of Science, Technology, Engineering, Environmental and Ramiﬁcation Researches (ICOSTEERR 2018) - Research in Industry 4.0, pages

1617-1620

ISBN: 978-989-758-449-7

1617

2 RESEARCH METHODOLOGY

This paper uses the normative juridical method.

Normative legal research method or literature law

research method is a method used in legal research

conducted by examining the library materials in the

form of applicable legal norms contained in the

legislation or judgment decisions (Soekanto, 1986).

The normative juridical method in the context of this

paper is used to examine the legal norms of Evidence

Tools In the Book of Criminal Procedure Code

(KUHAP) and The Position of Scientific Evidence in

the Establishment of Suspects as Pretrial Objects. The

data of this study is the secondary data consisting of

(a) main legal materials in the form of a legislation,

and (b) secondary legal materials including books and

journals. The data were collected using the literature

reviews and document analysis relating.

3 RESULT AND DISCUSSION

3.1 Evidence Tools in the Book of

Criminal Procedure Code

(KUHAP)

Regarding the instruments of this evidence, it is

included in Article 184 of the Criminal Procedure

Code, which consists of: (a) The statements of

witnesses; (b) Expert description; (c) Letter; (d)

Instructions; and (e) Description of the defendant.

These evidences are legitimate evidence, which has

to do with a crime. These tools of evidence shall be

used as substantiation, in order to give rise to a judge's

conviction, on the occurrence or not of a crime. For

this reason the evidence will be described as follows.

Statement of witnesses In general, the definition of

witness statements is contained in

Article 1 point 27

of the Criminal Procedure Code, which states that

"witness testimony is one of the evidence in a

criminal case in the form of testimony from a witness

regarding a criminal case, which he hears himself,

natural by itself, by mentioning the reason of his

knowledge (Sabuan, 1990).

Expert information, Article 1 point 28 of the

Criminal Procedure Code states that the expert's

statement is the information given by a person who

has special expertise on the matter necessary to make

the light of a criminal case for the purposes of

examination. Then in Article 186 of the Criminal

Procedure Code, it is stated that the expert's skill is

what the experts have stated in the court

(Soeparmono, 2016). So for the validity of expert

information as evidence, then the information must be

stated in court. An expert may also provide

information outside the court, for example on

examination of the investigation stage for example

embodied in visum et repertum, (Simanjuntak, 2009)

the results of laboratory analysis and others. This

information is called a written statement, which in the

examination is sufficient to be read only and the

expert concerned does not need to be presented in the

hearing, except for something, the expert concerned

is deemed necessary to be presented in the trial.

Letter, The meaning of this letter shall be

contained in Article 187 which reads as follows: "The

letter referred to in Article 184 Paragraph (1) letter c,

made on oath of office or affirmed by oath, is: (Ali,

2016)

a. official reports and other letters in the official

form prepared by the competent public authority

or drawn up before them, containing information

about events or circumstances heard, seen or

experienced by themselves, accompanied by a

clear and unequivocal explanation of the

information.

b. a letter made in accordance with the provisions of

legislation or letters made by the officer

concerning matters which fall under the

management of which it is the responsibility and

which is for the proof of a thing or circumstance.

c. a certificate from an expert whose opinions are

based on his or her expertise on a situation which

is formally requested from him/her.

d. other letters which may only apply if they relate

to the contents of another evidentiary instrument.

Guidance, According to Article 118, instructions

are actions, events or circumstances which, due to

their correspondence, either between one another and

the offense itself, indicate a crime has occurred and

who the perpetrator is. The guidance is not a direct

verification tool but basically the conclusions of other

evidentiary tools, which according to Article 188

Paragraph (2) of the Criminal Procedure Code can

only be obtained from the statements of witnesses,

letters and statements of the accused.

Explanation of the defendant, Article 189 states

"Defendant's statement is what the defendant stated in

the hearing about the deeds he did or knew himself or

experienced himself. Thus, the defendant's statement

as evidence must be stated in the hearing. While the

information is supported by a legal evidence as long

as the matter is charged to him. The defendant's

description can only be used against himself. The

statement of the defendant is not sufficient to prove

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that the guilty of committing the deed is accused of

him, but must be judged by other evidence.

3.2 The Position of Scientific Evidence

in the Establishment of Suspects as

Pretrial Objects

In the development of certain criminal acts, it requires

the development of evidence instruments other than

those set forth in the Criminal Procedure Code. This

is because the modus operandi of crime has been

using the means of information technology that is

closely related to cyber space in doing the crime.

Therefore, the evidence instruments set forth in the

Criminal Procedure Code will not be able to expose

the crime in a sophisticated mode.

In the Criminal Act of Corruption, Article 26 of

the Corruption Eradication Act (UU PTPK)

formulates that the investigation, prosecution and

examination in the trial of corruption is conducted

under applicable criminal procedure law, unless

otherwise provided in this Law. Based on Article 26

of the above PTPK Law, the evidence against

corruption shall still refer to Article 184 of the

Criminal Procedure Code. Subsequently, the above

evidences, specifically for evidence guidance are

extended in Article 26 A of the PTPK Law, that

specifically for criminal acts of corruption may also

be obtained from (a) other evidence in the form of

information uttered, transmitted, received or

stored

electronically with optical devices or similarly; and

(b) documents, i.e. any recording of data or

information that can be seen, read, and or heard which

may be issued with or without the aid of a means,

whether contained on paper, any physical object other

than paper, or electronically recorded, in the form of

writings, sounds, images, maps, designs,

photographs, letters, signs, numbers, or perforations

that have meaning.

The Narcotics Law also recognizes the scientific

evidence formulated in article 86 paragraph (2), in the

form of (a) information that is spoken, transmitted,

received, or stored electronically by optical means or

similarly; and (b) recording or information data that

can be seen, read, and/or heard, which can be issued

with or without the aid of a good instrument contained

on paper, any physical objects other than paper or

electronically recorded, limited to: (1) writings,

sounds and/or images; (2) maps, designs,

photographs or the like; or (3) letters, signs, numbers,

symbols, passwords or perforations that have

meaning understood by those who are able to read or

understand them.

The Electronic Information Transaction Law

(ITE) in Article 44 is already familiar with other

evidence in the form of Electronic Information and/or

Electronic Documents. Similarly, the Money

Laundering Act in Article 73 states that in addition to

the evidence contained in the Criminal Procedure

Code, as well as other evidence in the form of

information that is spoken, transmitted, received, or

stored electronically with optical devices or similar

optical instruments and Documents.

The extension of the status of the Suspect as the

object of the Pretrial, the consequence of the Pretrial

Judge has the authority to judge the validity of early

evidence. This is because the determination of the

Suspects is in the domain of the investigation, that is,

as defined in Article 1 point 2 of the Criminal

Procedure Code, which states "Investigation is a

series of investigative actions in respect of and in

accordance with the manner stipulated in this law to

seek and collect evidence which by evidence it makes

the light of the crime that occurred and in order to find

the suspect ". This the meaning of the investigation

must first seek and collect evidence to make light of

the crime taking place. From the evidence then only

the suspect is determined.

In certain criminal acts, such as criminal acts of

corruption, money laundering crime, narcotics crime

and criminal acts of information and electronic

transactions, in the pretrial to the determination of the

Suspect, it is very important to test the validity of this

scientific evidence. This proof is information that is

spoken, transmitted, received, or stored electronically

with optical or similar devices. Therefore the science

of criminal law should receive assistance from other

related fields of science related to the world of

informatics. This is very important to find justice and

legal certainty in determining a person as a suspected

suspect of a criminal. For a person who feels

aggrieved over his or her determination as a criminal

suspect, you can use the scientific evidence to defend

him through pretrial institutions so that truth is

discovered.

The status of a suspect can be studied through the

philosophy of punishment due to the shift in the status

of a suspect into a defendant in the criminal

proceedings (Murphy, 1995). The status of a suspect

within the perspective of classical school and positive

school is the "right" of a criminal, not the forced

efforts, despite these two schools have differences in

its punishment system. The classical school requires

a criminal sanction as a responsibility for the crimes

committed (Zimring, 1976). While, the positive

school requires the person to be given a treatment or

rehabilitation (Walker, 1995). In other words, in

The Scientiﬁc Evidence in Suspect Determination as an Object Pre-trial

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defining the suspect status as an entry point to the

criminal justice system, someone suspected of being

a criminal "reserve the right" to bear the status of a

suspect after fulfilling the requirements of

preliminary evidences.

4 CONCLUSION

Crimes that use sophisticated mode and use

cyberspace cannot be disclosed by conventional

evidences based on KUHAP. Therefore it is

necessary to develop and apply scientific evidence,

both for law enforcement officers, and for someone

who has been designated as a suspect to find the truth

in a criminal event. Therefore, the criminal act of

corruption, Narcotics, Money Laundering, and the

Law on Information Transaction Electronic, has been

set about this scientific evidence in the form of

electronic information and electronic documents.

Like wise with the extension of the status of the

Suspect as the object of the Pre-trial, the consequence

of the Pre-trial Judge has the authority to assess the

validity of the evidence, including this scientific

evidence. Law enforcement officers and suspects

should seek other scientific assistance related to this

scientific evidence.

ACKNOWLEDGEMENTS

We would like to thanks the Research and Service

Institute of Universitas Sumatera Utara who

supported the authors to implement research

programe throught TALENTA research scheme of

Fiscal Year 2018 based on the Rector Letter Number:

433/UN5.1.R/SK/PPM/2018.

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