Corresponding Author: Hugo S Franata
E-mail: [email protected]
INTRODUCTION
Human innovation and creativity in developing
increasingly sophisticated technology will affect all fields, one of which is the
law. Law following changes from time to time is one of openness to science. The
spread of technological developments to various countries, including Indonesia,
is due to globalization. Because of the need and usefulness of technology
quickly entered the wider community. As a result, people's lives are increasing
in utilizing these technologies. Without realizing it, today's technology can
make an opportunity or threat for users (Savitri, 2019).
Corruption prevention measures are one of the efforts
to eradicate corruption by increasing public trust in law enforcement and
openness in handling corruption so that the public can access information (Waluyo, 2022). Meanwhile, from the prosecutor's point of view, the
law (doesn't mean to rule out pros and cons) gives law enforcement officials
the authority to obtain and use electronic information to strengthen the evidence
in corruption cases (Azhar, 2018).
Eradication of corruption is a sequential and
systematic action to prevent and eradicate corruption (through coordination,
monitoring, investigation, prosecution, and judicial review) and involve the
public in following statutory regulations (Awaluddin &
Mukaddimah, n.d.). The latest fundamental legal entity for corruption
crimes for the KPK is Law Number 19 of 2019, although it is still being studied
(Hertanto, 2020).
One of the benefits of this technology is wiretapping
as an effort to force corruption. Wiretapping is the use of technology to find
information on criminal acts of corruption as legal evidence in the eyes of the
law. This form of wiretapping in the form of electronic surveillance is in the
form of talking or recording the target to obtain electronic evidence (Rachmad, 2016).
On the other hand, wiretapping can be linked to
violating the privacy of everyone whose human rights are unknown to everyone (Fitria, 2017). This means that not everyone has the right to access
wiretapping, and some limitations are only for his knowledge, not for someone's
privacy. Wiretapping that violates the law is carried out not by law enforcers
who have been regulated by law. Even though law enforcers have received the
authority to conduct wiretapping, they cannot do anything beyond the specified
limits because this instrument is sensitive to human rights related to personal
data.
The KPK can conduct wiretapping if it gets a letter of
assignment signed by the KPK leadership for the decision to conduct wiretapping
to obtain/strengthen the evidence in investigation activities that have
indicated corruption. The wiretapping results were obtained as one of the
activities of investigators to collect information related to the indications
of deterioration (Utami, 2020).
However, the act of wiretapping in its occurrence
causes diversity because there is no precise monitoring mechanism, and it is
carried out depending on the target. In addition, due to the lack of clarity in
the legal regulations regarding wiretapping, the target cannot challenge the
wiretapping results, and question the wiretapping performance mechanism carried
out by law enforcement officers (Eddyono, 2014).
Indonesia gets the lowest rating in protecting the
right to privacy because the wiretapping law lacks clarity on the mechanism.
The government has not been able to balance human rights regarding individual
privacy with the authority of law enforcement. There needs to be firmness and
clarity in the law so that there is no friction between the right to privacy
and the limitations of the wiretapping mechanism (Natamiharja et al.,
2022).
The scope of wiretapping on privacy related to human
rights and its importance as electronic evidence in criminal acts of
corruption, the purpose of this study is to examine wiretapping as evidence in
criminal acts of corruption in Indonesia without violating constitutional
rights. The existence of wiretapping as evidence can view electronic evidence
as new evidence that adds evidence in the Criminal Code or the expansion of
evidence in the Criminal Code and by wiretapping is an extension of the
evidence guide, thus helping the process of criminal acts of corruption in
Indonesia.
METHOD
The research method uses a normative juridical approach,
which is a systematic stage related to the legal field to complete/search for
data information through library materials/secondary materials (Soekanto, 2007); (Soemitro, 1994); (Asikin, 2004). Data collection techniques with document study. Data
analysis studies library materials/secondary data from documents and applicable
laws and regulations related to legal norms and primary legal materials,
secondary legal materials, and tertiary legal materials. Primary legal
materials such as wiretapping under competence in Article 26 of Law no. 26.
31/1999, together with Law no. 31. 20/2001 and Article 12 letter an of Law no.
12. Against the Decree of the Corruption Eradication Commission Number 30 of
2002 and Law Number 19 of 2019 concerning the Second Amendment to Law Number 30
of 2002 concerning the Corruption Eradication Commission.
The
data analysis uses qualitative descriptive, which describes the policy of
synchronizing the laws and regulations regarding the criminal act of
wiretapping corruption, then evaluates whether the implementation follows the
normative provisions.
RESULTS AND DISCUSSION
Wiretapping is not
done because of choice as the first action; this is done because of
considerations and decisions to obtain evidence of criminal acts of corruption (Hertanto, 2020).
In the case of bribery, wiretapping is one of the last
ways to unravel the riddle of this particular case. Many corruption problems
have been uncovered because of wiretapping, and this method is considered to
solve severe and systematic crime problems. Wiretapping is an action that
produces a positive solution to expose criminal acts, but this instrument is
sensitive to the privacy rights of the target.
Indonesian
regulations on wiretapping are regulated in several laws outside the Criminal
Procedure Code (Fachrunisa, 2021). Indonesia has 13 rules and regulations, but these only
address the power of wiretapping. As a result, the proper legal form for
conducting wiretapping is not regulated, which means that the provisions
regarding wiretapping are limited to granting power and do not discuss wiretapping
methods. Therefore, this activity may intersect with the violation of their
rights.
The 1945
Constitution in Article 1 paragraph (3) explains, "The State of Indonesia
is a state of law". Article 17, paragraph (1) of the International
Covenant on Civil and Political Rights stipulates, "No one may be
arbitrarily or unlawfully interfered with in his personal, family, home or
correspondence matters, or unlawfully assaulted his honour. and his good
name."
The wiretapping
arrangement in the KPK Law has clarified the tapping mechanism, which must be
approved by the supervisory board first, and then wiretapping can be carried
out. Because a wiretapping is not the first step in the investigation but the
final step in strengthening evidence. Cases of acts of corruption are exceptional
cases that are very likely to violate human rights if carried out without
applicable provisions. In Law Number 19 of 2019 concerning the Second Amendment
to Law Number 30 of 2002 concerning the Corruption Eradication Commission, a wiretapping
mechanism is established. For example, article 12, paragraph 1 states, "In
carrying out the task of investigation and investigation as referred to in
article 6 letter e, the Corruption Eradication Commission has the authority to
conduct wiretapping". Article 12, in Law Number 30 of 2002, has points in
the form of,
Article 12B
�(1) Wiretapping,
as referred to in Article 12 paragraph (1), shall be carried out after
obtaining written permission from the Supervisory Board.
(2) To obtain a
permit, as referred to in paragraph (1), it is carried out based on a written
request from the Head of the Corruption Eradication Commission.
(3) The Supervisory
Board may give written permission to the request as referred to in paragraph
(2) no later than 1 x 24 (one time twenty-four) hours from the date the request
is submitted.
(4) If the Head of
the Corruption Eradication Commission obtains written permission from the
Supervisory Board as referred to in paragraph (3), wiretapping is carried out
no later than 6 (six) months from the receipt of written permission. It can be
extended 1 (one) time for the same time. ."
Article 12C
�(1) Investigators
and investigators report the ongoing wiretapping, as referred to in Article 12
paragraph (1), to the leadership of the Corruption Eradication Commission regularly.
(2) The wiretapping,
as referred to in Article 12 paragraph (1), which has been completed, must be
accountable to the Head of the Corruption Eradication Commission and the
Supervisory Board no later than 14 (fourteen) working days as of the
wiretapping is completed."
Article 12D
�(1) The results of
the wiretapping, as referred to in Article 12 paragraph (1), are confidential
and only for the interest of the judiciary in the Eradication of Corruption
Crimes.
(2) Wiretapping
results not related to Corruption Crimes that the Corruption Eradication
Commission is handling must be destroyed immediately.
(3) If the
obligations as referred to in paragraph (2) are not carried out, the official
and the person who keeps the wiretapping results shall be subject to criminal
penalties following the provisions of the laws and regulations.�
The Corruption
Eradication Commission has special authority to obtain evidence of talks to
eradicate corruption in Indonesia. According to Arteria, �This great authority
must be balanced with prudence so it is not misused. Wiretapping and recording
of conversations is a limitation of human rights. All of that must be regulated
to avoid abuse of authority that violates human rights and the accuracy of law
enforcement" (Mahkamah Konstitusi
Republik Indonesia, 2020).
However, according
to KPK investigators in (Indonesia 2020), the investigation mechanism in Law Number 19 of 2019 can weaken the law
enforcement process by the KPK. The regulation is deemed to hinder action in
the investigation that should be carried out as soon as possible so that those
indicated as targets can be processed and do not eliminate the electronic
evidence.
Furthermore, the
Corruption Eradication Commission's existence of Law Number 11 of 2008
concerning Information and Electronic Transactions does not pose a threat that
must be monitored for wiretapping actions (Mahkamah Konstitusi
Republik Indonesia, 2020). This is because the Corruption Eradication Commission
(KPK) takes wiretapping actions considering the applicable provisions so that
in its implementation, it is prudent without reducing the constitutional rights
of the wiretapping target. Therefore, the KPK does not interfere with the right
to privacy because it has followed its limitations, and the restriction of
wiretapping information is only in corruption cases and nothing more.
Article 12 of 1948
of the Universal Declaration of Human Rights stipulates that �there shall be no
arbitrary interference in the personal, family, domestic or correspondence of
any person; there is also no violation of honour and good name. Everyone has
the right to legal protection against such interference or violations�. And
Article 28G paragraph 1 of the 1945 Constitution states that "everyone has
the right to personal protection, honour, dignity and property under his
control, and has the right to a sense of security and protection from threats.
Fear of doing or not doing something. This is a human right. Based on these
three laws, the right to privacy is a human right that the State must protect.
All actions taken by the State through its institutions must not violate these
human rights provisions. Because Human Rights are the Constitutional Rights of
every citizen�. Based on the regulation of the legal entity, it explains that
although the use of technology, in this case, is wiretapping by law enforcement
officers, there are still considerations of human rights on the right to
privacy other than those relating to indications of corruption cases that
cannot be interfered with in their affairs.
CONCLUSION
On the side of the criminal act of
corruption, the law provides special authority to law enforcers to obtain and
use electronic information. The range of wiretapping on privacy related to
human rights and the importance of such information as evidence of corruption
must consider the applicable laws without violating constitutional rights. Wiretapping
arrangements in the KPK's new and fundamental legal basis, Law Number 19 of
2019, emphasizing the provision of legal certainty to carry out a mechanism for
granting permits for wiretapping because the previous regulation did not have
any rules explaining the granting of licenses by the Supervisory Board so that
the KPK leadership could act immediately. Such great authority must be balanced
with prudence. Because a wiretapping is not as easy as the general public
perceives, some limitations emphasize constitutional rights, namely their
privacy.
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