Trial Proving in Electronic Criminal Case Trial Based On the Dignified Justice Perspective

Trial proving in Indonesia has always been limited to Criminal Procedural Law and other regulations. Following the recent development of electronic criminal case trials, there has not been any precise regulation aside from Supreme Court Regulation 4 of 2020. The contradiction between KUHAP and Supreme Court Regulation causes problems, especially regarding trial proving. The purpose of the paper is to provide a legal solution to the problem of the legal emptiness regarding the regulation of trial proving in electronic criminal case trials from the perspective of Dignified Justice that will provide advantageous, responsive, and adaptive justice towards the needs of the community. The methodology of this research is based on normative research. The normative research methods used in this research are the statute approach, normative approach, and comparative approach. The result showed there shouldn't be a conflict between the effect of KUHAP and Supreme Court Regulation. Yet, the regulation of trial proving in an electronic criminal trial should be regulated at a statute level.


Trial proving in Indonesia has always been limited to Criminal Procedural Law and other regulations.
Following the recent development of electronic criminal case trials, there has not been any precise regulation aside from Supreme Court Regulation 4 of 2020. The contradiction between KUHAP and Supreme Court Regulation causes problems, especially regarding trial proving. The purpose of the paper is to provide a legal solution to the problem of the legal emptiness regarding the regulation of trial proving in electronic criminal case trials from the perspective of Dignified Justice that will provide advantageous, responsive, and adaptive justice towards the needs of the community. The methodology of this research is based on normative research. The normative research methods used in this research are the statute approach, normative approach, and comparative approach. The result showed there shouldn't be a conflict between the attorney general, and prison as a solution in communication. 6 Another research by I Made Wirya Darma is titled Formal Juridical Weakness in the Conduct of Criminal Case Trials through Teleconference during the  Pandemic. This research discusses the problem within Supreme Court Circular Letter Number 1 of 2020 regarding Guidelines for the Implementation of Duties during the Spread of Covid-19 Prevention in the Supreme Court and Judicial Bodies. This Circular Letter is underneath Supreme Court, and Attorney General's Instruction Number 5 of 2020 regarding Policies for the Implementation of Duties and Case Handling during the Spread of COVID-19 Prevention in the Attorney General's Office of the Republic of Indonesia had become a legal breakthrough in the conduct of criminal case trials electronically. However, these regulations had caused a legal problem, so the given solution was to form Standard Operational Procedure or SOP so that the implementation procedures would become systematic. 7 These previous researches focused on describing legal phenomena regarding electronic criminal case trials instead of providing a legal solution. Hence, the previous research acted as sociojurisprudence research. In contrast, this research acted as normative research that tried to solve a legal problem in electronic criminal case trial, namely legal emptiness of regulation regarding trial proving in electronic criminal case trial.
The scope of this research is limited to the discussion of trial proving in criminal case trials electronically that revolves around legal rights and legal obligations of the parties involved in the conduct of trials and compare it to Dignified Justice Theory perspective. This study will not discuss the truth or falsity of electronic criminal case trials regulation arrangements. Following the background, the focus of the problem answered in this legal research, namely trial proving by the court participant in electronic criminal case trials from the perspective of Dignified Justice. The purpose of the research is to find a legal solution to the trial proving by the court participant in electronic criminal case trials from the perspective of Dignified Justice that will provide advantageous, responsive, and adaptive justice towards the community's needs. Unlike research that uses a qualitative or quantitative model, such legal problems shall be researched and solved through normative research. 8 The method used in the research is methods that are used in normative research, namely conceptual approach, a statutory approach, and a comparative approach.

Trial Proving in Indonesian Criminal Cases
Trial proving is a guidelines as regulated in statutes in order to prove the truth or fault of a criminal charge delegated from the prosecutor towards the defendant based on evidences. 9 Hari Sasangka emphasized that trial proving regulates tools of evidence, trial proving applied in a state, evidence submission procedure, and the judge's authority in evaluating the submitted evidence. 10 Indonesia and other countries still acknowledge the existence of trial proving theory, namely evidence system based on positive statutes, trial proving based on legal confidence, and trial proving based on the judge's belief on the grounds of logic. 11 As a legal

Trial Proving in Electronic…
Novritsar Hasintongan Pakpahan, Teguh Prasetyo, Erny Herlin Setyorini, Yovita Arie Mangesti state, Indonesia adopts a different trial proving system, namely a trial proving system based on negative statutes or negatif wettelijke. 12 A negative trial proving system in this sense is the existence of dual-element combination to gain truth, throughout valid tools of evidence as regulated in the statutes along with judge's belief towards the defendant's criminal charges as regulated in Article 183 Act 8 of 1981 regarding Criminal Procedural Law (furthermore will be abbreviated as KUHAP) 13 .
Specifically, the trial proving regulations in Indonesia have been regulated in Article 184 of KUHAP. In the regulation above, Indonesia recognizes evidence tools as a part of trial proving, namely witness testimony, expert testimony, proof of letter, indication, defendant's statement. Indonesia's negative trial proving system referred to Article 183 KUHAP and emphasized Article 230 Paragraph 1 of KUHAP. Article 230 Paragraph 1 of KUHAP regulates that each trial plan must be conducted in Court Building. In this sense, the trial proving agenda must be conducted directly or physically in Court Building, especially in a courtroom. Trial proving directly or physically is specified in regulation regarding evidence tools for trial proving submitted in a trial.
Trial proving that must be conducted directly or physically in Court Trial as regulated in KUHAP, as follows: a) Witness' testimony is required to be stated and heard in a court trial as regulated in Article 185; b) Expert's testimony is required to be stated and heard in a court trial as regulated in Article 186; c) Defendant's statement is required to be stated and heard in a court trial as regulated in Article 189; d) The indication evaluation as a tool of evidence shall is examined by a judge in Court as regulated in Article 188 Paragraph 3; The ratio legis of a direct or physical trial proving is regulated in KUHAP, specifically in Article 185 Paragraph 6, namely the search of straight truth through the harmonization of tools of evidence. Wirjono Projodikoro stressed that the harmonization of evidence tools is addressed so judges may gain belief or confidence in trial proving. Such confidence prevents the emergence of disbelief in decision-making, considering that such judgment binds judges morally and legally. 14 2.
Trial Proving in Indonesian Electronic Criminal Cases Trial Criminal case trials in Indonesia refer to KUHAP as lex general. In the development, the conduct of Criminal case trials which was limited only to physical or direct trials, had developed into trials that use information technology facilities. In 2002, Supreme Court facilitated electronic criminal case trials by examining B.J. Habibie, the former President of the Republic of Indonesia, as a witness who testified in a trial through a teleconference facility. 15 Aside from that practice, Act 11 of 2008 juncto Act 19 of 2016 regarding Electronic Information and Transaction had introduced the existence of electronic evidence through Article 5 Paragraph 1 that declares electronic evidence and electronic documents, including its print-out as a valid tool of evidence. The purpose of the criminal procedural law, which seeks the straight truth, has not been fulfilled in the Covid-19 pandemic situation due to the lack of rights and opportunities from the Public Prosecutor, Defendant, Legal Counsel, and Witness in electronic criminal case trials. This lack of rights is contrary to the spirit of Dignified Justice, which emphasizes that the law exists so that humans can be treated like fellow human beings who have both the same rights and obligations. 16 Human rights violation in criminal case trial process occurs if trial proving in criminal procedural law is not regulated clearly and definitely in a formal and concrete legal form. Following the development of the trial situation that develops from direct and physical trials into electronic criminal case trials, the Supreme Court issued Supreme Court Regulation Number 4 of 2020 regarding Administration and Electronic Criminal Cases Trial to address the technical administration of electronic criminal case trials.
Supreme Court issued with Supreme Court Regulation Number 4 of 2020 regarding Administration and Electronic Criminal Cases Trial regulates the conduct of trial process in several phases as follows: a. Indictment-reading electronically; b. The objection of defendant's submission electronically through electronic domicile; c. Trial proving in the manner of witness submission electronically through the virtual room; d. Trial proving in the manner of proof of letter submission electronically in the form of a portable document; e. The examination of the defendant's statement electronically; f. Charge, defense, and defense's response electronically; Based on the regulation above as related to trial proving as regulated in KUHAP, it shall be viewed that trial proving in Indonesian criminal case trials refers to a negative trial proving system. 17 A negative trial proving system is a trial proving which is conducted to ensure judge regarding a legal occurrence through two valid tools of evidence to prove and gain judge's belief. 18 The negative trial proving system that Indonesia adopted is based on KUHAP incorporated into Supreme Court issued with Supreme Court Regulation Number 4 of 2020 regarding Administration and Electronic Criminal Cases Trial. Hence, the application of electronic criminal case trials is not entirely conducted electronically. Indonesian practice of electronic criminal case trial is different to electronic criminal case trials in automoatic or directly computer-processed as defined by Richard Susskind. 19 Electronic criminal cases trial, as regulated by Supreme Court Regulation Number 4 of 2020 regarding Administration and Electronic Criminal Cases Trial in Indonesian criminal justice system is considered as digital hybrid criminal case trial. 20 . Such hybrid digital trial prioritizes the conduct of trial similar to a direct or physical trial; however, the conduct is executed virtually, and the physical documents involved are digitalized or incorporated into electronic form. 21 Electronic criminal cases tried in the hybrid digital trial place physical or direct trial in a virtual room through teleconference media and email facility to submit the digitalized physical document. 2016 regarding Electronic Information and Transaction. Trial proving in digital hybrid trial still refers to the principle of the valid tool of evidence as regulated in KUHAP and Act 11 of 2008 juncto Act 19 of 2016 regarding Electronic Information and Transaction. The evidence tools above are witnessed testimony, expert testimony, proof of letter, indication, defendant's statement, and electronic evidence in the form of electronic information and electronic document along with printed document originating from electronic information and transaction as a proof of letter.
Based on Supreme Court Regulation Number 4 of 2020 regarding Administration and Electronic Criminal Cases Trial, the digitalized version of physical evidence such as proof letter shall be valued as proof of letter despite the change of the form as long as they're submitted to the Court through Court's email. The digitalized version of physical evidence is recognized as proof of letter following the regulation in Article 5 Paragraph 1 Act 11 of 2008 juncto Act 19 of 2016 regarding Electronic Information and Transaction. During the trial proving agenda, the testimony of witness procured in a trial by teleconference shall be viewed as having the same legal binding power as witness' testimony procured in a physical trial according to Article 1 Paragraph 14 Supreme Court Regulation Number 4 of 2020 regarding Administration and Electronic Criminal Cases Trial. Such view conflicts with the regulation of Article 160 KUHAP that obliges every testimony to be procured in a physical trial. Based on the principle of lex posterior derogat legi priori, the legal provisions within Supreme Court Regulation Number 4 of 2020 regarding Administration and Electronic Criminal Cases Trial has legal-binding power compared to Article 160 KUHAP.
Trial proving through evidence tools such as witness' testimony and proof of letter in electronic form is based on Supreme Court Regulation Number 4 of 2020 regarding Administration and Electronic Criminal Cases Trial as its legal form. However, it does not necessarily mean that witnesses' testimony and proof of letter in electronic form do not have their regulations. The testimony of the witness stated in the electronic criminal trial through teleconference, according to Hafidlatul Waro Atamimi, must be given in detail along with a good picture and audio quality without any interference or disturbing noises and based on the swearing-in of the witness. 22 Furthermore, Article 7 Paragraph (5) Supreme Court Regulation Number 4 of 2020 regarding Administration and Electronic Criminal Cases Trial obliges the location of swearing-in to be equipped with camera or CCTV for Defendant and Witness. Therefore, the court participant may remark the trial situation to prevent pressure towards the defendant and witnesses. Digitalized proof of letter set to be used in trial proving is obliged to be checked or verified its authenticity by Judge's Panel according to Article 14 Paragraph 3 Supreme Court Regulation Number 4 of 2020 regarding Administration and Electronic Criminal Cases Trial.
The trial proving in electronic regulation through Supreme Court Regulation Number 4 of 2020 regarding Administration and Electronic Criminal Cases Trial is based on information technology. Thus, the justice process in the Court shall not be withheld due to pandemics or other obstacles. The search for justice in judicial and trials must consider Dignified Justice Theory. Dignified Justice Theory is a theory that prioritizes humane justice while being concerned with the honor and dignity of people as a human without any exception 23 . Dignified justice embraces the concept of appreciation towards human dignity. 24 Appreciating human dignity in the perspective of dignified justice translates the concept into an act of humanizing human beings 25 . Humanizing human beings requires a moral parameter that becomes the base of compliance for the enactment of the law. 26 In Indonesia, the moral parameter could be perceived through the grundnorm or legal base foundation of Indonesia as a state, which is Pancasila. 27 The honor and dignity of human is realized through the form of human rights. 28 Every single human being has a human right, including court participants. The human rights are owned by the suspect, witness, and victim. These rights include the accused from and the witness and victim's rights to safety. Another essential human right, especially for the accused, is a fair trial so that the accused and the public prosecutor has the same amount of chance in proving their interest. 29 Electronic criminal case trial, especially in trial proving agenda and the use of information technology and its current regulations, hasn't fulfilled the human rights of court participants. As noted in several cases, namely I Gede Ari Astina or Jerinx SID's case. 30 In that case, the defendant felt that he was placed at a disadvantage when he couldn't hear the trial process clearly due to internet connection trouble 31 . Furthermore, the defendant felt that he couldn't administer optimal trial proving due to the limitation of information technology that was not provided by the Court or the public prosecutor 32 . Based on the case above, the regulation of electronic criminal case trials still doesn't have a firm legal standing. It is absent without detailed human rights protection regarding the conduct of electronic criminal case trials. KUHAP has higher enactment power than Supreme Court Regulation Number 4 of 2020 regarding Administration and Electronic Criminal Cases Trial since KUHAP is still in effect.
The unoptimized conduct of Supreme Court Regulation Number 4 of 2020 regarding Administration and Electronic Criminal Cases Trial due to the lack of facilities and infrastructure and conflicts with KUHAP. This poor implementation causes the unfulfillment of Dignified Justice.
To fulfill Dignified Justice, the urgency of human rights protection for trial administrators and participants must be protected. Such protection can only be fulfilled if electronic criminal case trial is regulated in statute instead of Supreme Court Regulation. Electronic criminal case trial regulation, especially in trial proving agenda within, is insufficient to be formulated only in Supreme Court Regulation form.
The lack of regulation for electronic criminal case trials, especially for trial proving, may cause difficulty in choosing which regulation is in effect. For instance, in some cases, legal parties argued that KUHAP is still in effect and preferred Supreme Court Regulation 4 of 2020. On the other hand, other legal parties may argue that Supreme Court Regulation 4 of 2020 is still in effect and preferred to KUHAP.
Considering that Supreme Court Regulation 4 of 2020 didn't regulate trial proving in electronic criminal case trials, it can be argued that the rule of trial proving still relied on  Trial Proving in Electronic… Novritsar Hasintongan Pakpahan, Teguh Prasetyo, Erny Herlin Setyorini, Yovita Arie Mangesti KUHAP. Yet, the rule of trial proving in electronic criminal case trial was not regulated in KUHAP, so the application of trial proving in KUHAP shall be regarded as not best suited for electronic criminal case trial.
Following the principle of lex specialis derogat legi generali, which means specific or specialized regulation is preferred than a general regulation 33 , the rules of lex superior derogat legi inferiori shall be questioned. In the practice of law enactment, lex superior derogat legi inferiori principle precedes lex specialis derogat legi generali principle. 34 Electronic criminal case trial regulation still relies on Supreme Court Regulation 4 of 2020 rather than KUHAP. Therefore, there needs to be a specialized regulation in renewing criminal procedural law in statute form that can replace KUHAP or other statutes to support the conduct of KUHAP. Implementing that regulation will follow the lex specialis derogat legi generali principle without contradicting the lex superior derogat legi inferiori principle.
Regulation of trial proving within electronic criminal case trial in Supreme Court Regulation Number 4 of 2020 regarding Administration and Electronic Criminal Cases Trial has attempted to adhere to Dignified Justice. For instance, forced direct trial during the pandemic will threaten the trial administrators and participants' health due to the potential spread of the Covid-19 pandemic. 35 In this sense, the regulation of witness testimony through teleconference media in an electronic criminal case trial has prioritized the protection of human honor and dignity regarding safety and health.
The regulation of digitalized proof of letter for trial proving within electronic criminal case trial as regulated in Supreme Court Regulation Number 4 of 2020 regarding Administration and Electronic Criminal Cases Trial has also attempted to adhere to Dignified Justice. The regulation above has become Dignified Justice's driving force, so there needs not to be any physical or direct meeting between the defendant, public prosecutor, and judge's panel for submission and examination of tools of evidence. It results in the protection of the health of the parties involved. Aside from that, justice is fulfilled through the judge's panel's obligation in r verifying digitalized proof of letter to the original proof of letter. The Dignified Justice is fulfilled in electronic criminal case trial through the legal certainty of the submitted and verified digitalized letter proof. 36 The Supreme Court faces ahead is the lack of Supreme Court Regulation's legal power compared to KUHAP, which is considered to be a Statute that is higher than Supreme Court Regulation. Following Dignified Justice, electronic criminal case trial regulation needs to be conducted in the form of a statute similar to KUHAP.
The importance of electronic criminal case trial regulation in a statute is based on Statutory Hierarchy Theory or stufentheorie by Hans Kelsen. Kelsen stated that legal norm is regulated by regulating norm towards other norms following the rile of hierarchy. 37 The hierarchy above causes the effect of lower-level or tier of the legal norm not to be applicably juxtaposed with higher-level or tier of a legal norm. 38 Statutory Hierarchy Theory stressed that the legal norm within statutory hierarchy effect conducted a legal logic that legal norm in a lower-tier automatically becomes inapplicable in a situation where its norm contradicts the legal norm in a higher tier. In this case, Supreme Court Regulation Number 4 of 2020 regarding Administration and Electronic Criminal Cases Trial cannot be implemented because it contradicts KUHAP.
KUHAP has a higher level of statutory hierarchy as a statute. In contrast, Supreme Court Regulation Number 4 of 2020 regarding Administration and Electronic Criminal Cases Trial exists under statutory level as regulated in Article 8 Paragraph 1 Law 12 of 2011 regarding Establishment of Legislations. Based on Statutory Hierarchy Theory, trial proving in electronic criminal case trial should not be regulated in Supreme Court Regulation Number 4 of 2020 regarding Administration and Electronic Criminal Cases Trial, especially regarding criminal case trial's conduct against KUHAP. The importance of trial proving regulation should not only be incorporated into a lower level or tier of the statute. Instead, it should be regulated into a proportionate regulation to KUHAP, which means it should be regulated in the level or tier of the statute.

C. Conclusion
Concluding this research, the regulation of digitalized proof of letter for trial proving within electronic criminal case trial as regulated in Supreme Court Regulation Number 4 of 2020 regarding Administration and Electronic Criminal Cases Trial has also attempted to adhere to Dignified Justice. The regulation above has become Dignified Justice's driving force so that there needs not to be any physical or direct meeting between the defendant, public prosecutor, and judge's panel for submission and examination of tools of evidence. It results in the protection of the health of the parties involved. Aside from that, justice is fulfilled through the judge's panel's obligation in verifying digitalized proof of letter to the original proof of letter. The Dignified Justice is fulfilled in electronic criminal case trial through the legal certainty of the submitted and verified digitalized letter proof. Suggestions for electronic criminal case trial is criminal case trial regulation should be regulated into the form of higher-level or tier of statute namely statute or Law such as KUHAP so there will be no statutory conflict of effect.