The legal force of electronic evidence in criminal proof in Indonesia, recognized through the ITE Law but creating interpretive challenges due to disharmony with the KUHAP. Although the UU ITE expands the definition of evidence, authentication and collection validity requirements are not yet unified. The Constitutional Court decision and the amendment to the ITE Law provide clarification, particularly regarding wiretapping. In the context of medical criminal cases in hospitals, electronic medical records (EMR) are important but are hampered by the limitations of the KUHAP. Legal uncertainty regarding the submission, verification, and assessment of electronic evidence in medical criminal cases highlights the urgency of revising the KUHAP to comprehensively accommodate electronic evidence for the sake of legal certainty and justice.
The contemporary era of information technology disruption is characterized by exponential developments that infiltrate and transform various sectors of life, the healthcare domain being no exception. The implementation of information technology within the healthcare domain has spurred significant innovation, encompassing aspects from hospital organizational management and therapeutic modalities to health science research and development. Consequently, the provision of healthcare services integrated with information technology, such as hospital management information systems and electronic medical records, has now become a focal point of discourse and adoption at both national and global levels (Rayyan & Siregar, 2025).
The convergence of information technology, particularly within the Society 5.0 paradigm, has accelerated a fundamental transformation in the healthcare sector. A prominent manifestation of this transformation is evident in the adoption and implementation of Electronic Medical Records (hereinafter referred to as the “EMR”) as a substitute for conventional paper-based medical record systems, adapted to the operational needs of healthcare service entities (Nasution & Siregar, 2025). This transition is a logical derivation of the paradigms of efficiency, accuracy, and accountability in the provision of healthcare services, defined as any organized effort, whether individual or collective, aimed at maintaining and enhancing health status, undertaking preventive and curative measures against illness, and health rehabilitation at the individual, group, or community level (Levey Lomba in Nasution & Siregar, 2025). Furthermore, this advancement signifies a managerial paradigm shift from a system based on manual human performance towards optimizing human resource performance facilitated by technological instruments, as proven by the implementation of online patient registration systems and EMR (Nasution & Siregar, 2025).
From the perspective of positive Indonesian criminal law, the doctrine and practice of evidence (bewijsvoering) occupy a central locus within the process of examining cases in court, oriented towards the discovery of material truth. Proof is essentially a juridical process to convince the judge regarding the factual truth of the arguments presented in a legal dispute, where the judge is burdened with the judicial obligation to verify and establish the validity of these arguments (Irwanto, Syofyan, & Mannas, 2023). The prevailing system of evidence in Indonesia is the negative legal system (negatief wettelijk stelsel), as stipulated in Article 183 juncto Article 184 of the Indonesia Criminal Procedure Code (hereinafter referred to as the “KUHAP”). This system requires the fulfillment of a minimum condition of two legally valid pieces of evidence, both formally and materially, supported by the judge's internal conviction (conviction intime), as a constitutive basis for declaring the defendant guilty (Irwanto, Syofyan, & Mannas, 2023). Documentary evidence is one of the five types of evidence limitatively recognized by the KUHAP.
The logical implication of massive digitalization in the healthcare service sector, particularly with the implementation of EMR, raises a fundamental juridical issue concerning the qualification and legal validity of EMR as an instrument of proof within the domain of criminal procedure law. EMR, which
substantially constitutes a collection of electronic data or information, possesses the juridical potential to be qualified as electronic documentary evidence, an expansion of circumstantial evidence, or as other evidence as regulated by sectoral laws and regulations concerning Information and Electronic Transactions. The essence of proof is to provide an adequate factual basis for the judge in establishing the ultimate truth through their decision. If, based on the evaluation of the evidence presented in court, including electronic evidence derived from EMR, it is not legally and convincingly proven that the defendant is guilty of the charges attributed to them, then the defendant must be acquitted (vrijspraak). Conversely, if the defendant's guilt is legally and convincingly proven based on evidence that meets the requirements of the law, then the defendant must be declared guilty and subjected to criminal sanctions (Irwanto, Syofyan, & Mannas, 2023).
Considering the vital role of EMR in the modern healthcare service ecosystem within hospitals and the urgency of proof in the process of criminal justice enforcement, particularly in the context of alleged medical criminal acts involving healthcare professionals or healthcare facilities, a deep discourse regarding the juridical aspects of digital evidence becomes imperative. Therefore, this research is focused on analyzing the legal standing of EMR as digital evidence and its evidentiary mechanism within the framework of resolving medical criminal cases in hospital healthcare service entities.
The Pure Objective Theory of Evidence, also known as the positive legal doctrine (wettelijke) and embraced by Catholic canon law (canoniek recht) (Hiarieej, 2012: 15), posits that a judge is entirely bound by the evidence and evidentiary basis stipulated by law. A judge's decision must be based on conclusions drawn exclusively from types of evidence regulated by statute, without involving the judge's subjective conviction (Hamzah, 1984: 229). This system aims to eliminate subjective judicial considerations and bind the judge to strict rules of evidence. However, Prodjodikoro criticizes this theory for seemingly not placing trust in the judge's personal impressions and for conflicting with the principle of truth in criminal procedure (Wirjono Prodjodikoro, 1974: 92).
In contrast to the objective theory, the Pure Subjective Theory of Evidence (conviction intime or bloot gemoedelijk over tuiging) grounds the judge's decision solely on their personal conviction (Hiarieej, 2012: 16). Under this theory, the judge's assessment is based on their conviction according to their feeling, unbound by statutory proof, granting the judge absolute freedom. Nevertheless, this system has faced criticism for granting excessive freedom to judges, making oversight difficult, and hindering the defendant or defense counsel in presenting a defense (Hamzah, 1984: 231; Prodjodikoro, 1974: 90).
Prodjodikoro further adds that this theory relies too heavily on the judge's personal impressions, making the oversight of decisions difficult because supervising bodies cannot ascertain the judge's subjective considerations (Wirjono Prodjodikoro, 1974: 90).
As an alternative, the Free Theory of Evidence (conviction raisonnée or vrije bewijsleer) emerged, requiring that a judge, in determining their conviction, is not restricted by law but must be accountable for how that conviction was obtained and articulate the reasons underpinning their decision based on science and logic (Hiarieej, 2012: 17). Under this system, the judge is not bound by statutorily defined types of evidence and may utilize other evidence outside those provisions (Prodjohamidjojo, 1983: 17). This theory emphasizes the judge's reason and thought process in evaluating a case.
The research method applied in this analysis is normative legal research, which is fundamentally oriented towards the study and interpretation of prevailing laws and regulations. The research approaches employed include the statute approach, focusing on an in-depth review of Law No. 11 of 2008 concerning Information and Electronic Transactions and its amendments, the Criminal Procedure Code (KUHAP), Indonesia Law No. 17 of 2023 concerning Health, and Regulation of the Minister of Health No. 24 of 2022 concerning Medical Records, as well as the case approach, through an analysis of Indonesia Constitutional Court Decision No. 20/PUU-XIV/2016 (hereinafter “CCD No. 20/PUU-XIV/2016”) as a relevant legal precedent. The primary data sources in this research are laws and regulations, and court decisions, supplemented by secondary data in the form of legal literature and relevant scholarly works.
Data analysis was conducted qualitatively using descriptive and interpretive methods. The collected legal materials were analyzed to identify relevant legal norms, examine the hierarchical relationships and synchronization among regulations, and interpret the meaning and implications of court decisions regarding the legal force of electronic evidence in criminal proof, particularly in the context of medical criminal cases in hospital healthcare services. The analytical focus is directed towards identifying potential legal uncertainty arising from regulatory disharmony and the limitations of procedural law in accommodating digital evidence.
The legal force of electronic evidence within the context of criminal law in Indonesia is increasingly recognized and has become a subject of serious attention among law enforcement officials, academics, and legal practitioners. Electronic evidence encompasses various forms of digital data, including emails, text messages, digital documents such as PDFs and spreadsheets, voice recordings, video recordings, as well as data originating from social media and instant messaging applications. The recognition of this evidence is officially
regulated through Indonesia Law No. 11 of 2008 concerning Information and Electronic Transactions (Hereinafter referred to as the “ITE Law”), which has been amended by Law No. 19 of 2016 (Yuli Anggraini, 2024). In the ITE Law, it is stipulated that electronic information and/or electronic documents, as well as their printouts, possess valid legal force and can be used as evidence in legal proceedings, provided they meet the requirements stipulated in laws and regulations (Yuli Anggraini, 2024).
One key aspect of the legal force of electronic evidence is its admissibility. To be accepted in court, electronic evidence must meet certain requirements, including authentication and validity of collection (Yuli Anggraini, 2024). This indicates that the process of collecting and storing electronic data must not only be carried out with proper procedures but must also comply with applicable legal provisions. For instance, if electronic evidence is obtained through illegal methods, such as illegal or unauthorized wiretapping by the competent authorities, its credibility will be questioned, and such evidence is potentially subject to rejection by the court (Yuli Anggraini, 2024).
Although the Criminal Procedure Code (KUHAP) does not explicitly regulate electronic evidence as valid evidence, regulations and provisions in other laws, particularly the ITE Law, permit the use of electronic information as valid evidence (Nasya Ardhani Subarzah et al., 2023). Article 184 paragraph (1) of the KUHAP lists the types of valid evidence, including: witness testimony; expert testimony; documentary evidence; circumstantial evidence; and the defendant's statement (Nasya Ardhani Subarzah et al., 2023, p. 82). In this context, the ITE Law serves as lex specialis that expands the scope of proof in criminal procedure law by recognizing electronic documents as valid evidence (Nasya Ardhani Subarzah et al., 2023).
Pursuant to Article 73 of the ITE Law, which governs electronic authentication, electronic data, electronic documents, and/or their paper copies are deemed valid evidence provided that the electronic system employed adheres to the stipulations set forth within the ITE Law. Further reinforcing this principle, Articles 5 and 6 of the ITE Law explicitly affirm that electronic data and/or electronic documents, along with their printouts generated through an electronic system compliant with the ITE Law, constitute valid evidence (Nasya Ardhani Subarzah et al., 2023). Specifically, Article 5, paragraph (1) of the ITE Law unequivocally states that electronic information and/or data, including their printouts, are recognized as valid legal evidence, and these forms of electronic information, electronic documents, or their paper copies are considered an expansion of admissible evidence under the prevailing procedural law in Indonesia (Nasya Ardhani Subarzah et al., 2023, p. 83).
Moreover, complementing the five categories of evidence stipulated in the KUHAP (Criminal Procedure Code), Article 44 of the ITE Law also addresses evidence within the context of investigations, prosecutions, and court examinations, encompassing evidence as defined by statutory provisions as well as other forms of evidence, namely electronic information and/or electronic documents as delineated in Article 1, paragraphs (1) and (4), and Article 5, paragraphs (1), (2), and (3) of the ITE Law (Nasya Ardhani Subarzah et al., 2023).
To further understand the meaning of the expansion of electronic evidence, it is necessary to examine CCD No. 20/PUU-XIV/2016 (Gunawan et al., 2022, p. 106). This decision was submitted in relation to the judicial review of the ITE Law, particularly Article 5 paragraphs (1) and (2), Article 44 letter b, and Article 26A of Law No. 20 of 2001 concerning the Eradication of Corruption (Gunawan et al., 2022, p. 106). The decision explains the expansion of the sources for obtaining valid circumstantial evidence (petunjuk), which is not limITEd to witness testimony, documentary evidence, and the defendant's statement, but also obtained from other evidence in the form of information spoken, sent, received, or stored electronically by optical or similar means, including electronic data interchange, electronic mail (e-mail), telegrams, telexes, and facsimiles, as well as electronic documents (Gunawan et al., 2022).
Notwithstanding the direct review of Law No. 11 of 2008 and Law No. 20 of 2001 by CCD No. 20/PUU-XIV/2016, Law No. 19 of 2016 was promulgated in response thereto (Gunawan et al., 2022). Prior to the aforementioned Constitutional Court decision, Article 5, paragraphs (1) and (2) of Law No. 11 of 2008 stipulated that electronic information and/or electronic documents, including their printouts, constituted valid legal evidence and an expansion of admissible evidence pursuant to the applicable procedural law (Gunawan et al., 2022, p. 108). Subsequent to CCD No. 20/PUU-XIV/2016, Article 5, paragraphs
(1) and (2) of Law No. 11 of 2008 were amended, with paragraph (1) now providing that electronic information and/or electronic documents intended as evidence must be obtained for law enforcement purposes upon the request of the police, prosecutor's office, and/or other law enforcement institutions established by law, as referenced in Article 31, paragraph (3) of Law No. 11 of 2008 concerning Information and Electronic Transactions, and that their printouts also constitute valid legal evidence; paragraph (2) further affirms that such items represent an expansion of valid evidence in accordance with the prevailing procedural law in Indonesia (Gunawan et al., 2022).
This amendment has sparked debate regarding the interpretation of the phrase “obtained for law enforcement purposes at the request of the police, prosecutor, and/or other law enforcement institutions established by law...”. The question arises whether the request from law enforcement officials must exist before the electronic data is created or is only required when the data is to be used as evidence (Gunawan et al., 2022). The elucidation of Article 5 paragraph
(2) of Law No. 19 of 2016 provides a limitation stating that the provision concerning the request from law enforcement officials applies specifically to electronic information and/or electronic documents in the form of results of interception or wiretapping or recording that are part of wiretapping. Thus, it can be concluded that only electronic data in the form of wiretapping requires permission or a request from the authorized law enforcement officials. Other electronic data such as CCTV, photos, videos, and others, do not require a request from law enforcement officials during the collection process, provided the data is original and has not been subject to engineering (Gunawan et al., 2022).
Based on the explanation above, it can be concluded that electronic evidence possesses legal force recognized in the Indonesian criminal legal
system. This recognition is based on the ITE Law and its amendments, which expand the definition of valid evidence in the KUHAP. Nevertheless, the admissibility of electronic evidence remains dependent on fulfilling certain requirements, including authentication, integrity, and lawful collection procedures. The Constitutional Court decision and the amendments in the ITE Law provide further clarification regarding the application of these provisions, particularly related to evidence obtained through wiretapping.
Based on the explanation above, although the ITE Law has provided a juridical basis for the legal force of electronic evidence in criminal proof, it inherently contains a number of problems that require further attention. The disharmony between the KUHAP, which does not explicitly regulate electronic evidence, and the new evidentiary regime introduced by the ITE Law creates interpretive and applicative challenges at the level of judicial practice. Furthermore, the requirements for authentication and validity of collection of electronic evidence, while acknowledged for their importance, lack fully unified operational standards, thereby opening up opportunities for subjectivity in judicial assessment and potential disputes in court.
Moreover, the interpretive polemic regarding the phrase “obtained for law enforcement purposes at the request of the police, prosecutor, and/or other law enforcement institutions” following CCD No. 20/PUU-XIV/2016, although clarified in the elucidation of Article 5 paragraph (2) of Law No. 19 of 2016, still holds potential for legal uncertainty. Limiting the requirement for law enforcement requests only to electronic data in the form of interception or wiretapping results indicates a recognition of the sensitivity of such data concerning privacy rights. However, the absence of a specific law comprehensively regulating wiretapping, as mandated by the Constitutional Court, indicates a legal vacuum that needs immediate attention to provide certainty and clarity in the process of proving criminal acts involving electronic evidence.
The development of digital technology has brought about significant transformation in the healthcare sector, including in the implementation of telemedicine. Telemedicine, as a form of remote healthcare service, heavily relies on digital platforms for interaction between patients and healthcare providers, as well as for the storage and management of patient health data. This raises important questions regarding patient legal protection, including the security of personal data, confidentiality of medical information, and the admissibility of electronic medical records as evidence (Dalimunthe, W., Ismaidar, & Simarmata, M. 2025). In the context of proof in court, especially in cases involving medical disputes, the validity and integrity of digital data are crucial, and the legal system needs to adapt to accommodate the challenges arising from the use of this technology in healthcare services, particularly in hospitals.
To further understand the challenges of proving digital data in the context of healthcare services, especially in hospitals, it is important to examine
perspectives from other sectors that also face similar issues in the era of digitalization, as will be explained through an analogy with the dynamics of proof in the realm of electronic commerce (e-commerce). In the context of electronic commerce (e-commerce), it demonstrates the difficulty for consumers to prove the validity of online transactions or seller default, caused by the vulnerability of digital data to manipulation and the suboptimal nature of proof mechanisms. The difficulty of proof in online transactions generalizes the inherent challenges of digital data regarding authenticity and integrity as legal evidence (Simbolon, H., & Zarzani, T. R. 2025; Zulkarnain, P., & Zarzani, T. R. 2024).
Applying this generalization to healthcare services in hospitals raises similar challenges for electronic medical records, where the urgency of authenticity and integrity in cases of alleged medical criminal acts becomes increasingly significant given the potential for alteration or destruction of data without a comprehensive audit trail. Therefore, by referring to the efforts of the legal system to accommodate digital proof challenges in e-commerce, it can be concluded that there is a need for the development of effective and comprehensive legal mechanisms in the healthcare sector to guarantee the authenticity and integrity of digital data as evidence to protect patient rights and uphold the rule of law.
The legal challenges in digital proof in medical criminal cases in healthcare services in hospitals relate to aspects of legal uncertainty in digital proof in medical criminal cases in hospitals. Article 5 paragraphs (1) and (2) of Law No. 11 of 2008 concerning Information and Electronic Transactions (ITE Law) hold a central role. This article explicitly states that “Electronic Information and/or Electronic Documents and/or their printouts constitute valid legal evidence” and asserts that this is an “expansion of valid evidence in accordance with the applicable Procedural Law in Indonesia.” Nevertheless, the phrase “in accordance with the applicable Procedural Law” itself becomes the starting point of uncertainty, considering that the KUHAP has not explicitly accommodated this type of evidence (Komisi III DPR RI. 2025).
Furthermore, Article 184 paragraph (1) of the Criminal Procedure Code (KUHAP) limitatively lists the types of valid evidence, namely witness testimony, expert testimony, documentary evidence, circumstantial evidence, and the defendant's statement. The absence of Electronic Information and/or Electronic Documents from this list is a main source of legal uncertainty (Komisi III DPR RI. 2025; Tarigan, D. J. R., Zarzani, T. R., & Siregar, M. A. 2025). Although the ITE Law intends to expand the scope of evidence, the lack of synchronization with the KUHAP causes judges and law enforcement officials to face a dilemma in accepting or rejecting electronic evidence, especially in medical criminal cases that often rely on electronic medical records (EMR) as a crucial source of information.
Article 188 paragraphs (1) and (2) of the KUHAP further clarify the challenges in integrating electronic evidence into the existing criminal procedure system. This article defines circumstantial evidence (petunjuk) as actions, events, or circumstances which, by their concordance, indicate that a criminal act has
occurred and who the perpetrator is, and paragraph (2) limits the sources of circumstantial evidence only to witness testimony, documentary evidence, and the defendant's statement (Komisi III DPR RI. 2025). A common interpretation is that electronic evidence, if accepted, can only be categorized as circumstantial evidence (petunjuk), which has a lower grade of proof compared to other explicitly mentioned types of evidence, thereby potentially weakening the probative value of digital data in medical criminal cases.
The elucidation of Article 5 of the ITE Law itself actually aims to provide legal certainty by stating that the existence of electronic information and/or electronic documents is binding and recognized as valid evidence, especially in proving electronic transactions. However, this good intention is hindered by the reality that criminal procedure law has not provided clear mechanisms regarding how electronic evidence should be submitted, verified for authenticity, and assessed for relevance in the context of criminal cases, including medical criminal acts. The absence of specific formal procedures creates broad scope for interpretation and potential injustice.
CCD No. 20/PUU-XIV/2016 provides an interpretation of Article 5 of the ITE Law stating that the phrase “Electronic Information and/or Electronic Documents” as evidence must be obtained for law enforcement purposes at the request of the police, prosecutor, and/or other law enforcement institutions. This decision, although aimed at limiting the potential misuse of electronic evidence, adds a layer of uncertainty in the context of medical criminal cases which may not always begin with a formal request from law enforcement officials, especially at the initial stages of complaint or internal hospital investigation.
In the context of healthcare services, Article 173 paragraph (1) letter c of Law No. 17 of 2023 concerning Health mandates healthcare facilities to maintain medical records, the elucidation of which explicitly mentions that medical records can be created using electronic systems. Furthermore, Article 3 paragraph (1) of Regulation of the Minister of Health No. 24 of 2022 concerning Medical Records even mandates every healthcare facility to implement Electronic Medical Records. Both provisions emphasize the importance of digital data in the provision of healthcare services but do not specifically regulate the procedures for their use as evidence in medical criminal cases, thus highlighting the need for harmonization with criminal procedure law once again.
The relevant articles explicitly show significant disharmony and legal vacuum concerning digital proof in medical criminal cases in hospitals. Article 5 of the ITE Law provides substantive recognition of electronic evidence, but its implementation is hindered by the limitations of the KUHAP. The Constitutional Court decision provides a conditional interpretation, while health regulations emphasize the importance of electronic medical records without detailing their use in the realm of criminal law. This condition underscores the urgency of revising the KUHAP to comprehensively accommodate electronic evidence, particularly in the context of medical criminal cases, to provide legal certainty and justice for all parties involved.
Within the Indonesian criminal justice framework, electronic evidence has achieved progressively robust legal standing, primarily governed by Law No. 11 of 2008 concerning Information and Electronic Transactions (hereinafter “the ITE Law”), inclusive of its subsequent amendments. The ITE Law explicitly stipulates that electronic information and/or electronic documents, along with their printed iterations, hold valid legal force and are admissible as evidence in criminal court proceedings, contingent upon the satisfaction of prescribed authentication and lawful acquisition requirements as mandated by prevailing laws and regulations. Notwithstanding the absence of an explicit enumeration of electronic evidence within the Criminal Procedure Code (KUHAP), the ITE Law functions as lex specialis, thereby broadening the ambit of recognized evidence in criminal procedural law, a principle substantiated by Articles 5, 6, and 44 of the ITE Law and further buttressed by CCD No. 20/PUU-XIV/2016.
Nevertheless, the implementation of the legal force of electronic evidence in criminal judicial practice still faces a number of challenges. The disharmony between the KUHAP and the ITE Law gives rise to difficulties in interpretation and application at the practical level. The requirements for authentication and validity of collection of electronic evidence necessitate unified operational standards to avoid subjectivity in judicial assessment. Furthermore, the interpretive polemic concerning the phrase related to requests from law enforcement officials in Article 5 of the ITE Law post-Constitutional Court decision, although clarified, still has the potential to cause legal uncertainty. Therefore, harmonization between criminal procedure law and regulations pertaining to electronic evidence, including the possibility of revising the KUHAP, is crucial to provide legal certainty and enhance the effectiveness of proof in criminal cases in the digital era.
Advanced research concerning the legal force of electronic evidence in criminal proof in Indonesia necessitates an in-depth study of the harmonization between Law No. 11 of 2008 concerning Information and Electronic Transactions (ITE Law) and the Criminal Procedure Code (KUHAP). Further research could comprehensively explore the mechanisms for submission, authentication, and evaluation of electronic evidence in criminal courts, including the development of unified operational standards to ensure legal certainty and prevent potential disputes. Furthermore, an in-depth analysis of the implications of CCD No. 20/PUU-XIV/2016 and the amendments in Law No. 19 of 2016 on evidentiary practice, particularly regarding the acquisition of electronic evidence in medical criminal cases, is crucial for identifying potential legal uncertainty and formulating more effective policy recommendations.
The author(s) would like to extend sincere gratitude to the entire academic community of the Master's Program in Health Law at Universitas Pembangunan Panca Budi for their support and scholarly environment. Appreciation is also
expressed to the Asian Journal of Healthcare Analytics (AJHA) for their contributions to the field.