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All Journal POLITICA: Jurnal Hukum Tata Negara dan Politik Islam Law Development Journal
Adalin Ali
Universitas Mpu Tantular
Religion Humanities Economics, Econometrics & Finance Law, Crime, Criminology & Criminal Justice Social Sciences

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Pre-trial Review of Preliminary Evidence Examination in Tax-Related Criminal Offenses Following the Enactment of the New Criminal Procedure Code Adalin Ali; Appe Hutauruk; Hotman Sinambela; Mutia Sakti
Law Development Journal Vol 8, No 2 (2026): June 2026
Publisher : Universitas Islam Sultan Agung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.30659/ldj.8.2.873-888

Abstract

Preliminary evidence examination (pemeriksaan bukti permulaan or bukper) in Indonesian taxation is conducted before a case is elevated to investigation and aims to obtain preliminary evidence of an alleged tax crime. In practice, several actions taken by examiners particularly the borrowing of documents and the acquisition of electronic data, resemble coercive measures under criminal procedural law. This study analyses the legality of bukper procedures, the legal status of evidence borrowing, and the implications for pretrial review following the enactment of Law Number 20 of 2025 on the Criminal Procedure Code (KUHAP), effective since 2 January 2026. It employs normative legal research using statutory, case, and conceptual approaches, examining nine pretrial rulings and two Constitutional Court decisions. The findings show that bukper is normatively equivalent to inquiry and should contain no coercive measures; that evidence borrowing not genuinely based on the taxpayer's voluntary consent qualifies as a seizure-like action requiring district court authorization; and that the lex specialist argument cannot justify derogation from KUHAP where the legal basis is merely a ministerial regulation. Constitutional Court Decision Number 83/PUU-XXI/2023 declared both paragraph (1) and paragraph (4) of Article 43A of the General Tax Provisions Law (UU KUP) conditionally unconstitutional, so that even the delegation of bukper procedures to a ministerial regulation may not concern coercive measures. The new KUHAP reinforces this position. The study recommends regulating bukper at the statutory level with judicial control mechanisms.
Reconstructing Standards for the Assessment of Electronic Evidence in Indonesian Civil Procedure from the Perspective of ISO/IEC 27037:2012 Appe Hutauruk; Adalin Ali; Hotman Sinambela
Politica: Jurnal Hukum Tata Negara dan Politik Islam Vol. 13 No. 1 (2026): Politica: Jurnal Hukum Tata Negara dan Politik Islam
Publisher : Prodi Tata Negara (Siyasah) IAIN Langsa

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.32505/politica.v13i1.15704

Abstract

Article 5 of Indonesia’s Electronic Information and Transactions Law recognizes electronic evidence as legally valid. However, civil procedure, which still relies on the Herzien Inlandsch Reglement/Rechtreglement voor de Buitengewesten (HIR/RBg), lacks procedural standards to ensure the integrity of electronic evidence. Unlike criminal proceedings supported by investigators and forensic laboratories, civil litigants independently collect, store, and submit electronic evidence, creating risks of manipulation and inconsistent judicial assessment. This study examines the normative gap concerning the chain of custody of electronic evidence and proposes ISO/IEC 27037:2012 as a framework for judicial evaluation. Employing normative juridical research with statutory, conceptual, comparative, and case approaches, the study analyzes Decision No. 258/Pdt.G/2023/PN Blb, supported by Constitutional Court Decision No. 20/PUU-XIV/2016 as its doctrinal foundation. The findings reveal that the court assessed WhatsApp screenshots using the doctrine applicable to documentary photocopies rather than Articles 5 and 6 of the ITE Law, admitting even photocopies of photocopies without examining the original electronic data. The absence of acquisition and preservation standards leaves the evidentiary value of electronic evidence dependent on judicial discretion, creating the potential for inconsistent decisions. To address this deficiency, the study proposes a three-pillar framework: imposing a bewijsvoering obligation on the submitting party, adopting the four stages and four principles of ISO/IEC 27037:2012 as judicial assessment criteria, and strengthening the role of accredited digital forensic experts. Consistent with Federal Rules of Evidence Rules 902(13)–902(14) and the doctrine of spoliation of evidence, this framework can be implemented through a Supreme Court Regulation, shifting judicial assessment from evaluating only electronic content to examining the integrity of evidence acquisition, preservation, and authentication.
Co-Authors Appe Hutauruk Hotman Sinambela Mutia Sakti