Friday, December 25, 2009

Electronic recording as evidence Back Debatable

Published By: Hukumonline, 24 Desember 2009.

"Not all crimes can use electronic evidence. Reference remains the Code of Criminal Procedure."

Although the Constitutional Court, recorded conversations with a number of parties Anggodo received, does not mean that electronic records can be accepted as evidence for all types of crime. In the case of premeditated murder against Nasrudin Zulkarnain, taped conversation between Antasari Azhar, Sigit Haryo Wibisono, and Juliani Rhani recorded on a cell phone Nasrudin, and the recorder's Sigit Haryo Wibisono at his residence can not be used as evidence.

View that, for example, adopted the criminal law expert Andi Hamzah. Andi, Chairman of the Criminal Procedure Code bill Authors Team, such as their views become an expert appointed in Nasrudin's murder trial continued in the South Jakarta District Court, Tuesday (22/12) and. This view also has several times expressed the prosecutor, including the talk show Hukumonline some time ago.

According to Andi Hamzah, a recording can not be used as evidence guide. Referring to Article 188 paragraph (2) Criminal Procedure Code, the instructions can be obtained through witness testimonies, letters, and statements of the accused. "No evidence, because the electronics," he said. But the bill that have not ratified the Criminal Procedure Code, according to electronic records can be used as guidance.

Andi explained, the assessment of evidentiary strength can be done by the judge. Therefore, judges need to be more careful and cautious in making judgments. "So there is no information guide," he said.

According to Professor of Law Faculty of the University of Trisakti's, recordings can be used as evidence for cases such as the special nature of corruption. In the case of murder can not serve as proof. Unlike the Criminal Code, Criminal Procedure Code draft was to accommodate the recording, poto, electronic mail, short messages on mobile phones, and conversations in the phone can be used as evidence. "We can not be used as evidence," he said.

Answer Andi makes Maqdir Ismail, counsel for the defendant, curious. "What about the description of each defendant to testify, what could be considered as a witness," he said. Andi explained, the defendant made the witness in the same case can not be justified. Witness the crown, according to Andi, the defendant was wearing a light sentence could inaugurated as a crown witness. With records, prosecutors had no other witnesses. Andi explained, that the defendant may lie in court. But the case with other witnesses. Therefore, a witness has been sworn. So that witnesses could not lie.

Then how about a separate trial?. Andi three defendants argue should - Antasari Azhar, Williardi Wizard, and Sigit Haryo Wibisono - made in a single file. Not separate as did the prosecutor present. Because they became defendants separately, the three statements into evidence. "Note the three into the evidence," he said. Even so, Andi judge should not take all three as a witness in the trial of each defendant.

Subject to the agreement of planning the murder, Brenda argued there was no agreement to willing to commit murder. Even so, there are 'fishing' which must be proved at trial for the light case. "That there's fishing to be proved," he said. According to him, in planning the murder should have agreement among several people. "The same will to work together," he said. Prosecution team did not ask a single question to Andi Hamzah.

Short message threats were found

Expert Information Technology Institut Teknologi Bandung (ITB) Agung Suharyo said short messages threatening to Nasrudin Zulkarnain who allegedly came from a mobile phone number Antasari not proven. "SMS was not there," he said. This was revealed during the verification done through the hand set type Nasrudin's Nokia E90. According to Agung, the handset has been damaged Nasrudin. Thus, to be able to find a short message is that the tools needed Call Detail Records (CDR). According to the Court there are several possibilities of short messages are lost. One was removed by performing manual.

Threatening short message to Nasrudin by the prosecution came from the defendant in February 2009. The contents of the short message reads "Sorry mas this problem we only knew. If terblow-ups to know the consequences ". Do not want one in proving, to the Court asking a prosecutor to operate the mobile phone owned by Nasrudin Nokia E90. According to the Court, there are some short messages on mobile phones owned by Nasrudin. Just, just a few short messages in December 2008 and March 2009.

Prosecutor showed print out Call Detail Records (CDR) of the telecommunications providers that contain Telkomsel recorded a short message delivery from Antasari. Hotma Sitompoel protest. Antasari lawyers argued the prosecution had only presented two pieces. Meanwhile, according to the version of the legal advisory team, Telkomsel parties submit specific pages of the 265 cell phone number associated with the case. "Is all the CDR could be material evidence," protested Hotma.

Although no threats were found a short message, the Great does not lack ways. According to the teachers in this ITB, there are other ways to detect, track of the CDR. In the CDR, connect the Great, there is a series of mobile phone subscribers activities. Even with the presence of CDR can be identified and the cell phone users send short messages. However, in order to open the CDR needed permission from the head of the court.

As a result at the end of the presiding trial judge had allowed Herry Swantoro. With notes, experts were not required to be present since there were witnesses and alleviate the constraints of time. The plan, Tuesday (29/12) in the CDR will be opened in court.

Found after the trial, the prosecution team leader said Cirus Sinaga not found naturally short messages threatening. The problem, connect the open CIRUS is hand set Nasrudin's Nokia E90. "Yes, there is not, which is in Nasrudin's E65. So it's wrong, "he said. Despite knowing wrong, the prosecutor kept. "The E90 is playing, we let not our interests, counsel requested that," he concluded.

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