The integration of electronic evidence in Law Number 20 of 2025 concerning the Criminal Procedure Code (“KUHAP 2025”) reflects fundamental changes in the system of evidence in response to technological developments and patterns of digital crime. In this regard, KUHAP 2025 has normatively expanded the recognition that electronic information, electronic documents, and/or electronic systems are valid evidence in law enforcement proceedings based on the principle of due process of law.
However, a new problem arises when the KUHAP 2025 does not balance the regulatory standards for testing the authenticity and integrity of electronic evidence presented in court. Challenges arise when electronic evidence is too complex and comprehensive, given the rapid development of technology, including artificial intelligence, which enables the instant creation and manipulation of data with a level of similarity that is relatively indistinguishable from authentic data, thus potentially causing legal uncertainty in criminal court practice.
Electronic Evidence under the Electronic Information and Transactions Law VS Criminal Procedure Code 2025
Admissible evidence in the Criminal Procedure Code (“KUHAP 1981”) does not recognize electronic evidence. However, in line with the development of information technology, electronic evidence is recognized and regulated in specific provisions, namely Law Number 11 of 2008 in conjunction with Law Number 19 of 2016 concerning Amendments to Law Number 11 of 2008 in conjunction with Law Number 1 of 2024 concerning the Second Amendment to Law Number 11 of 2008 concerning Electronic Information and Transactions (“ITE Law”).
The comparison of the scope of electronic evidence in the ITE Law and the 2025 Criminal Procedure Code is as follows:
| Aspect | Electronic Information and Transactions Law | Code of Criminal Procedure 2025
|
| The status of electronic evidence
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Expansion of valid evidence in accordance with the applicable Procedural Law in Indonesia (Article 5 paragraphs (1) and (2)) | Directly integrated, binding, and valid evidence under the Criminal Procedure Code (Article 235 paragraph (1) letter f))
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| Regulatory nature
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Lex specialis in the field of Electronic Information and Transactions
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Lex generalis applicable throughout the criminal justice process
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| Scope | Electronic information, and/or electronic documents and/or their printouts (Article 5 of Law Number 1 of 2024)
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Electronic information, electronic documents, and/or electronic systems related to criminal acts (Article 242)
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| Definition of electronic information | One or a collection of electronic data, including text, sound, images, maps, designs, photographs, electronic data interchange (EDI), electronic mail, telegrams, telexes, telecopies or similar items, letters, signs, numbers, access codes, symbols, or perforations that have been processed (Article 1 point 1 of Law Number 19 of 2016)
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Electronic data that has been processed and has a specific meaning in accordance with the provisions of laws and regulations (Article 1 number 38)
|
| Definition of electronic documents
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Any Electronic Information created, forwarded, sent, received, or stored in analog, digital, electromagnetic, optical, or similar forms, which can be viewed, displayed, and/or heard through a Computer or Electronic System, including but not limited to writing, sound, images, maps, designs, photographs or similar items, letters, symbols, numbers, access codes, symbols, or perforations that have meaning or significance or can be understood (Article 1 number 4 of Law Number 19 of 2016)
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Electronic information that is created, forwarded, sent, received, stored, viewed, displayed, and/or heard through a computer or electronic system, which has a specific meaning or significance in accordance with the provisions of laws and regulations (Article 1 number 39).
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| Definition of electronic system
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A series of electronic devices and procedures that function to prepare, collect, process, analyze, store, display, announce, transmit, and/or disseminate Electronic Information (Article 1 point 5 of Law Number 19 of 2016)
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Referred to as the scope of electronic evidence without further regulation
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Based on the above provisions, it can be concluded that the ITE Law regulates the scope of electronic evidence as an extension of valid evidence with an emphasis on detailed certainty of the object. Meanwhile, the 2025 Criminal Procedure Code takes a normative and general approach without detailing the categories included in electronic evidence.
What are the Problems with Electronic Evidence?
The 2025 Criminal Procedure Code does not specifically refer to any specific provisions of laws and regulations governing the mechanism for obtaining, examining, and testing the validity of electronic evidence, as there are no previous specific laws governing electronic information and transactions. However, even the Electronic Information and Transactions Law does not regulate the mechanism for proving the authenticity and integrity of electronic evidence.
The provisions of Article 55 of the 2025 Criminal Procedure Code do indeed allow for the use of technical assistance in the investigation process. This provision is further clarified in Article 56 letter e of the Criminal Procedure Code, which states that technical assistance may take the form of digital forensics. Such assistance is used when investigators, the Indonesian National Police, require examination in the testing of digital evidence that requires special handling or treatment. The use of the phrase “requires” emphasizes the non-imperative nature of digital forensic technical assistance, which is an option when deemed necessary by investigators, rather than an obligation in every electronic evidence case. The assessment of the validity of electronic evidence is determined by the judge based on the electronic evidence presented at the trial.
This condition places electronic evidence in a vulnerable position, given the increasing prevalence of evidence in electronic form that is created, edited, and engineered with artificial intelligence. Without clear procedural standards regarding the acquisition and authentication of electronic evidence, law enforcement practices have the potential to be inconsistent. Differences in approach between law enforcement officials in their differentiated functions can lead to debates over the validity of evidence in court and weaken the legal certainty that should be guaranteed by the 2025 Criminal Procedure Code.
Conclusion
The 2025 Criminal Procedure Code accommodates electronic evidence as a valid means of evidence, but does not yet provide comprehensive procedural standards regarding its authentication, integrity, and authenticity. Reliance on judicial discretion and the optional nature of digital forensics creates uncertainty in the evidentiary process. This situation has the potential to increase disputes over the validity of electronic evidence in court and ultimately hinder the realization of legal certainty, due process of law, and the effectiveness of the integrated criminal justice system.
References:
Law Number 20 of 2025 concerning the Criminal Procedure Code (KUHAP)
Law Number 11 of 2008 in conjunction with Law Number 19 of 2016 concerning Amendments to Law Number 11 of 2008 in conjunction with Law Number 1 of 2024 concerning the Second Amendment to Law Number 11 of 2008 concerning Electronic Information and Transactions
Law Number 8 of 1981 on the Criminal Procedure Code (old KUHAP)
Author: Lasta Elfrida Sinaga, S.H.
Editor: Yohana Maranatha, S.H., M.Kn.