Electronic
evidence (Electronic Document) rating, the degree and
the strength of evidence
Advances in science and technology is very fast in the field of telecommunications, computer and information has resulted in the convergence of applications. Consequently, there is a convergence in the livelihoods of people, including the industrial and commercial activities. Changes that occur include both in terms of scope of services, the culprit, and consumers. In a further development paradigm birth, social order and a new value system (Supancana, IBR., Power Electronic Act As Evidence In E-commerce transactions in the Indonesian Legal System).
Along with the development of society and technology, more and more people are using the tools of digital technology, including the interaction among human beings. Therefore, increasingly intense demands of the law, including the rules of evidence, to face the reality of the development of such a society. For example, to adjust the extent ekuatan proof of an electronic document and digital signature / electronic, which today is very much used in everyday practice.
In this case, the rules of evidence as they usually would be in a dilemma that needed kompromitis streets. On the one hand, that the law can always recognize the times and technology, the need for legal recognition of various types of digital technology to serve as evidence in court. However, on the other hand the tendency to manipulate the use of digital evidence by parties who are not responsible for causing the law does not recognize an independent in the digital data with the "law of evidence is best" (best evidence rule), a tool for digital data is difficult admissible in evidence.
The best evidence rule teaches that a proof of the substantial content of a document / photograph or tape should be used to bring to the court document / photograph or the original recording. Unless the document / photograph or record does not exist, and nonexistence is not happening because of the serious mistakes that have proved. Thus, according to the doctrine of the best evidence, copies (not originals) of a letter does not have the strength of evidence in court. Likewise, digital data, such as e-mail, fax machines, electronic signature, nothing original, or at least not be brought back to the court that this has resulted in serious legal problems in the areas of legal proof.
Legislators explicitly in the general description in conjunction with Article 6 ITE ITE following explanation has been stated that the electronic document itself synchronized with documents created on paper. (Article 6 of the Act: "In case of any other provisions set forth in Article 5 (4) requires that the information must be in writing or original, Information and / or Electronic considered valid as long as the information contained therein is accessible , display, guaranteed integrity, and be accountable to describe a situation. "explanation of Article 6 ITE:" during the writing is identical to the information and / or documents on paper only, when in fact the information and / or documents can be poured in any media, including electronic media. Within the scope of the Electronic Systems, the original information is no longer relevant to the copy to be distinguished for electronic Systems essentially operate in a manner that resulted in a doubling of the original information can not be distinguished from a copy. ")
Thus the modern AGM meeting minutes which is an electronic document can be compared favorably with the documents (meeting minutes) that is written on paper. But in this case should be held in-depth analysis of the meaning of the word "position" is equivalent in the General Explanation of the Act.
Author's Note: If you analyzed the provisions of article 5, paragraph 1, paragraph 2, Article 6, General Explanation of using the logic of induction, then the conclusion is the position of the function; so the information is made via electronic media "function" is equated with information created by using paper; therefore in ITE did not determine the position of the law (in this case the state, the degree and strength of evidence) of the Criminal Procedure applicable in Indonesia.
In Article 5, paragraph 1 and 2 of the Act simply states that electronic documents and / or prints are evidence of a legitimate and an expansion of legal evidence in accordance with the Criminal Procedure applicable in Indonesia; so the problem is whether the electronic document equivalent certificate under the hand (meeting minutes made under the hand) or even the equivalent of an authentic deed made by a notary public in the state, the degree and strength of evidence in the Civil Procedure Code in Indonesia?
To answer the question whether electronic documents, especially the minutes of meetings modern AGM harmonized with authentic as discoursed by legal experts telematics (Arrianto Mukti Wibowo team with First Phase Research Report 1:04 version of an academic paper on the Draft Law on Electronic Signatures and Electronic Transactions, 2001 , p 108-109), it must first be examined existing provisions in the Act as "lex specialis" her.
The Act is that any amendment that requires the approval of both the just and reasonable to the Minister shall be published or disclosed in the deed in Indonesian. If not mentioned in the deed of the meeting minutes must be made by a notary public notarial deed no later than 30 (thirty) days from the date of the decision of the AGM. Further determined that if later than the time limit specified above, the minutes of meetings of the amendment can not be specified in the deed.
Therefore, pursuant to the provisions above and the provisions referred to in Article 5 (4) b of the Act:
"The provisions of the Information and / or Electronic Documents referred to in paragraph (1) shall not apply to:
a. letter under the Act must be made in writing; and
b. pages and documents that under the Act must be made in the form of a deed or deed notarili made by deed officials. "
It is safe to conclude that the minutes of meetings of the GMS is modern Electronic Document can not be harmonized with authentic documents made by or in the presence of a notary; therefore authenticity of the deed comes from Article 1 (1) of Law No. Notary 30 of 2004, which is used as the office of notary public, so that the act done by the notary in a position to obtain the authentic nature.
Notarial deed made by the authentic nature, not by the laws that apply, but because the act and made by a public official. It is referred to in Article 1868 of the Civil Code, which states: "An authentic deed is a deed in the form prescribed by the Act, made by an officer of the general officer in command for it in the place where the deed had been made." (Description more further described in the author's thesis titled: the Legality of the AGM by Media Teleconference).
If it can not be equated with the authentic both in terms of functionality and in terms of the strength of proof, whether the power of the law of evidence in this case Electronic Document brochure can be synchronized with modern AGM deed made under the arm.
In short, all forms of writing or deed referred not authentic act under the arms or in other words, all kinds of acts that are not made by or in the presence of public officials. But in terms of the rules of evidence, so that a value of writing as a deed under hand, needed basic requirements:
1. A letter or writing, signed;
2. The contents described herein relate to legal actions
(rechtshandeling) or relations law (recht bettrekking);
3. intentionally made to be used as evidence of a legal action called
therein.
Proving the power of the act under the hands, not as wide and as high a degree of authentic documents. Authentic has a physical verification, formal and substantive. Not so with a deed under the hand, which does not have the physical strength of evidence, but only on its formal and substantive evidentiary weight that is much lower than authentic.
In the Act stipulates that the electronic information / documents electronically and / or print a valid legal evidence, and an expansion of legal evidence in accordance with the law applicable in Indonesia. But, not any electronic information / electronic documents can be used as legal evidence. According to the Act, an electronic information / electronic document to be considered valid evidence when using electronic systems in accordance with the provisions of the Act, the electronic system will be reliable and safe, and meet the following minimum requirements:
1. to bring back the electronic information and / or electronic documents in their entirety in accordance with the retention period prescribed by the regulations;
2. to protect the availability, integrity, authenticity, confidentiality, and accessibility of electronic information in the maintenance of the electronic system;
3. be able to operate in accordance with the procedures or guidelines for maintenance of the electronic system;
4. equipped with procedures or guidelines published by the language, information, or symbols that can be understood by the parties concerned with the maintenance of the electronic system; and
5. To have sustainable mechanisms to maintain freshness, clarity, and accountability procedures or guidelines.
Parties submitting electronic information must be able to prove that it has made appropriate efforts to ensure that an electronic system has been able to protect the availability, integrity, authenticity, confidentiality, and accessibility of electronic information.
However ITE should be able to explain how to prove an electronic system meets the requirements set out in the Act, so that the data in the form of information / documents electronically unquestioned legitimacy. Because the ITE own arrangements of the electronic system will still be further regulated by Government, it is expected that arrangements will be able to avoid unnecessary debates about the validity of that evidence.
From the above it can be concluded that prior to the electronic document can be used as a valid evidence, it must be tested in advance of the minimum requirements set by the laws of the creation of electronic documents is done using electronic systems are reliable, secure and operate as intended.
Therefore, it can be questioned whether the electronic document (in this leaflet are modern GMS) meets the minimum evidence, because the evidence indicated that the legal theory that the evidence presented in court as evidence valid, must be met in full and formal requirements material as determined by law.
Evidentiary threshold authentic enough in itself, because the strength of evidence that sticks in authentic and binding is perfect, basically it can stand on its own without the help or support of other evidence. While the deed under the hand that has evidentiary value should be formal and material conditions are met, namely:
- Made a unilateral or a party (at least two);
- Signed by the manufacturer or the party who made it;
- The content and the signature is recognized.
If the above conditions are met, in accordance with the provisions of Article 1975 of the Civil Code in conjunction with Article 288 RBG then the strength of the proof is the same as authentic; and therefore also have a minimum of proof that can stand alone without the help of other evidence.
Of Article 1 point 4, Article 5 (3), Article 6 and Article 7 of the Act can be categorized formal and substantive requirements of electronic documents that have evidentiary value, namely:
- In the form of electronic information is created, forwarded, sent, received or stored, which can be viewed, printed and / or heard via computer or electronic systems, including text, sound, pictures ... and so on that have meaning or sense or be understood by people are able to understand it;
- Otherwise valid when using the / origin of Electronic Systems in accordance with the provisions set forth in the law;
- Is considered valid if the information therein can be accessed tecantum, display, guaranteed integrity, and be accountable to describe a situation.
In terms of formal and material can be said that the electronic documents in order to meet the minimum threshold of evidence must be supported by an expert who understands and can ensure that the systems used to generate, transmit, send, receive or store electronic document is in accordance with the provisions of the law; then also be able to ensure that electronic documents are still in a situation like at the time made no change whatsoever when received by the other party (integrity), that it is a document comes from people who make it (authenticity) and guaranteed not to be denied by the author (non-repudiation).
This is compared with the data in writing, it can be said with a degree of quality electronic documents as evidence to prove the beginning of writing (end of schriftelijke bewijs), said like this because of electronic documents can not stand alone in the minimum sufficient evidence, therefore, must be supported with one of the other evidence. And the strength of evidence submitted to the judge, thus, the strength of evidence is independent (Free bewijskracht).
Based on the above legal reasoning, then we can conclude that electronic documents in civil law can be categorized as evidence of prejudice law is indisputable (rebuttable presumption of law) or at least guess the judge (rechtelijke vermoden).
Thus one of the conclusions of the author's thesis with the title: The Legality of the General Meeting of Shareholders by Media Teleconference.
Maybe some of your readers or other legal experts have different opinions or even want to complete it, the author is expecting input.
thank you
the strength of evidence
Advances in science and technology is very fast in the field of telecommunications, computer and information has resulted in the convergence of applications. Consequently, there is a convergence in the livelihoods of people, including the industrial and commercial activities. Changes that occur include both in terms of scope of services, the culprit, and consumers. In a further development paradigm birth, social order and a new value system (Supancana, IBR., Power Electronic Act As Evidence In E-commerce transactions in the Indonesian Legal System).
Along with the development of society and technology, more and more people are using the tools of digital technology, including the interaction among human beings. Therefore, increasingly intense demands of the law, including the rules of evidence, to face the reality of the development of such a society. For example, to adjust the extent ekuatan proof of an electronic document and digital signature / electronic, which today is very much used in everyday practice.
In this case, the rules of evidence as they usually would be in a dilemma that needed kompromitis streets. On the one hand, that the law can always recognize the times and technology, the need for legal recognition of various types of digital technology to serve as evidence in court. However, on the other hand the tendency to manipulate the use of digital evidence by parties who are not responsible for causing the law does not recognize an independent in the digital data with the "law of evidence is best" (best evidence rule), a tool for digital data is difficult admissible in evidence.
The best evidence rule teaches that a proof of the substantial content of a document / photograph or tape should be used to bring to the court document / photograph or the original recording. Unless the document / photograph or record does not exist, and nonexistence is not happening because of the serious mistakes that have proved. Thus, according to the doctrine of the best evidence, copies (not originals) of a letter does not have the strength of evidence in court. Likewise, digital data, such as e-mail, fax machines, electronic signature, nothing original, or at least not be brought back to the court that this has resulted in serious legal problems in the areas of legal proof.
Legislators explicitly in the general description in conjunction with Article 6 ITE ITE following explanation has been stated that the electronic document itself synchronized with documents created on paper. (Article 6 of the Act: "In case of any other provisions set forth in Article 5 (4) requires that the information must be in writing or original, Information and / or Electronic considered valid as long as the information contained therein is accessible , display, guaranteed integrity, and be accountable to describe a situation. "explanation of Article 6 ITE:" during the writing is identical to the information and / or documents on paper only, when in fact the information and / or documents can be poured in any media, including electronic media. Within the scope of the Electronic Systems, the original information is no longer relevant to the copy to be distinguished for electronic Systems essentially operate in a manner that resulted in a doubling of the original information can not be distinguished from a copy. ")
Thus the modern AGM meeting minutes which is an electronic document can be compared favorably with the documents (meeting minutes) that is written on paper. But in this case should be held in-depth analysis of the meaning of the word "position" is equivalent in the General Explanation of the Act.
Author's Note: If you analyzed the provisions of article 5, paragraph 1, paragraph 2, Article 6, General Explanation of using the logic of induction, then the conclusion is the position of the function; so the information is made via electronic media "function" is equated with information created by using paper; therefore in ITE did not determine the position of the law (in this case the state, the degree and strength of evidence) of the Criminal Procedure applicable in Indonesia.
In Article 5, paragraph 1 and 2 of the Act simply states that electronic documents and / or prints are evidence of a legitimate and an expansion of legal evidence in accordance with the Criminal Procedure applicable in Indonesia; so the problem is whether the electronic document equivalent certificate under the hand (meeting minutes made under the hand) or even the equivalent of an authentic deed made by a notary public in the state, the degree and strength of evidence in the Civil Procedure Code in Indonesia?
To answer the question whether electronic documents, especially the minutes of meetings modern AGM harmonized with authentic as discoursed by legal experts telematics (Arrianto Mukti Wibowo team with First Phase Research Report 1:04 version of an academic paper on the Draft Law on Electronic Signatures and Electronic Transactions, 2001 , p 108-109), it must first be examined existing provisions in the Act as "lex specialis" her.
The Act is that any amendment that requires the approval of both the just and reasonable to the Minister shall be published or disclosed in the deed in Indonesian. If not mentioned in the deed of the meeting minutes must be made by a notary public notarial deed no later than 30 (thirty) days from the date of the decision of the AGM. Further determined that if later than the time limit specified above, the minutes of meetings of the amendment can not be specified in the deed.
Therefore, pursuant to the provisions above and the provisions referred to in Article 5 (4) b of the Act:
"The provisions of the Information and / or Electronic Documents referred to in paragraph (1) shall not apply to:
a. letter under the Act must be made in writing; and
b. pages and documents that under the Act must be made in the form of a deed or deed notarili made by deed officials. "
It is safe to conclude that the minutes of meetings of the GMS is modern Electronic Document can not be harmonized with authentic documents made by or in the presence of a notary; therefore authenticity of the deed comes from Article 1 (1) of Law No. Notary 30 of 2004, which is used as the office of notary public, so that the act done by the notary in a position to obtain the authentic nature.
Notarial deed made by the authentic nature, not by the laws that apply, but because the act and made by a public official. It is referred to in Article 1868 of the Civil Code, which states: "An authentic deed is a deed in the form prescribed by the Act, made by an officer of the general officer in command for it in the place where the deed had been made." (Description more further described in the author's thesis titled: the Legality of the AGM by Media Teleconference).
If it can not be equated with the authentic both in terms of functionality and in terms of the strength of proof, whether the power of the law of evidence in this case Electronic Document brochure can be synchronized with modern AGM deed made under the arm.
In short, all forms of writing or deed referred not authentic act under the arms or in other words, all kinds of acts that are not made by or in the presence of public officials. But in terms of the rules of evidence, so that a value of writing as a deed under hand, needed basic requirements:
1. A letter or writing, signed;
2. The contents described herein relate to legal actions
(rechtshandeling) or relations law (recht bettrekking);
3. intentionally made to be used as evidence of a legal action called
therein.
Proving the power of the act under the hands, not as wide and as high a degree of authentic documents. Authentic has a physical verification, formal and substantive. Not so with a deed under the hand, which does not have the physical strength of evidence, but only on its formal and substantive evidentiary weight that is much lower than authentic.
In the Act stipulates that the electronic information / documents electronically and / or print a valid legal evidence, and an expansion of legal evidence in accordance with the law applicable in Indonesia. But, not any electronic information / electronic documents can be used as legal evidence. According to the Act, an electronic information / electronic document to be considered valid evidence when using electronic systems in accordance with the provisions of the Act, the electronic system will be reliable and safe, and meet the following minimum requirements:
1. to bring back the electronic information and / or electronic documents in their entirety in accordance with the retention period prescribed by the regulations;
2. to protect the availability, integrity, authenticity, confidentiality, and accessibility of electronic information in the maintenance of the electronic system;
3. be able to operate in accordance with the procedures or guidelines for maintenance of the electronic system;
4. equipped with procedures or guidelines published by the language, information, or symbols that can be understood by the parties concerned with the maintenance of the electronic system; and
5. To have sustainable mechanisms to maintain freshness, clarity, and accountability procedures or guidelines.
Parties submitting electronic information must be able to prove that it has made appropriate efforts to ensure that an electronic system has been able to protect the availability, integrity, authenticity, confidentiality, and accessibility of electronic information.
However ITE should be able to explain how to prove an electronic system meets the requirements set out in the Act, so that the data in the form of information / documents electronically unquestioned legitimacy. Because the ITE own arrangements of the electronic system will still be further regulated by Government, it is expected that arrangements will be able to avoid unnecessary debates about the validity of that evidence.
From the above it can be concluded that prior to the electronic document can be used as a valid evidence, it must be tested in advance of the minimum requirements set by the laws of the creation of electronic documents is done using electronic systems are reliable, secure and operate as intended.
Therefore, it can be questioned whether the electronic document (in this leaflet are modern GMS) meets the minimum evidence, because the evidence indicated that the legal theory that the evidence presented in court as evidence valid, must be met in full and formal requirements material as determined by law.
Evidentiary threshold authentic enough in itself, because the strength of evidence that sticks in authentic and binding is perfect, basically it can stand on its own without the help or support of other evidence. While the deed under the hand that has evidentiary value should be formal and material conditions are met, namely:
- Made a unilateral or a party (at least two);
- Signed by the manufacturer or the party who made it;
- The content and the signature is recognized.
If the above conditions are met, in accordance with the provisions of Article 1975 of the Civil Code in conjunction with Article 288 RBG then the strength of the proof is the same as authentic; and therefore also have a minimum of proof that can stand alone without the help of other evidence.
Of Article 1 point 4, Article 5 (3), Article 6 and Article 7 of the Act can be categorized formal and substantive requirements of electronic documents that have evidentiary value, namely:
- In the form of electronic information is created, forwarded, sent, received or stored, which can be viewed, printed and / or heard via computer or electronic systems, including text, sound, pictures ... and so on that have meaning or sense or be understood by people are able to understand it;
- Otherwise valid when using the / origin of Electronic Systems in accordance with the provisions set forth in the law;
- Is considered valid if the information therein can be accessed tecantum, display, guaranteed integrity, and be accountable to describe a situation.
In terms of formal and material can be said that the electronic documents in order to meet the minimum threshold of evidence must be supported by an expert who understands and can ensure that the systems used to generate, transmit, send, receive or store electronic document is in accordance with the provisions of the law; then also be able to ensure that electronic documents are still in a situation like at the time made no change whatsoever when received by the other party (integrity), that it is a document comes from people who make it (authenticity) and guaranteed not to be denied by the author (non-repudiation).
This is compared with the data in writing, it can be said with a degree of quality electronic documents as evidence to prove the beginning of writing (end of schriftelijke bewijs), said like this because of electronic documents can not stand alone in the minimum sufficient evidence, therefore, must be supported with one of the other evidence. And the strength of evidence submitted to the judge, thus, the strength of evidence is independent (Free bewijskracht).
Based on the above legal reasoning, then we can conclude that electronic documents in civil law can be categorized as evidence of prejudice law is indisputable (rebuttable presumption of law) or at least guess the judge (rechtelijke vermoden).
Thus one of the conclusions of the author's thesis with the title: The Legality of the General Meeting of Shareholders by Media Teleconference.
Maybe some of your readers or other legal experts have different opinions or even want to complete it, the author is expecting input.
thank you
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