Circumstantial Evidence and Judicial Observation in Corruption Cases

Irsyad Audrian Adhyasta

Introduction

In criminal proceedings, corruption offenses are often regarded as invisible crimes. Their organized nature, the involvement of complex financial schemes, and the frequent absence of direct witnesses due to the clandestine manner in which such acts are committed make the evidentiary process particularly challenging. In such circumstances, circumstantial evidence (bukti petunjuk) — currently conceptualized as judicial observation (pengamatan hakim) under the new Indonesian Criminal Procedure Code — plays a significant role in enabling judges to connect existing facts in order to uncover the material truth.

Concept of Circumstantial Evidence

Article 188 paragraph (1) of the Indonesian Criminal Procedure Code (KUHAP) defines circumstantial evidence as an act, occurrence, or circumstance which, due to its conformity with other facts, indicates that a criminal offense has occurred and identifies the perpetrator thereof. Furthermore, paragraph (2) expressly limits the sources of circumstantial evidence to only three categories: witness testimony, documentary evidence, and the statement of the accused.

Further elaborating on the concept of circumstantial evidence under the KUHAP, M. Yahya Harahap, in Pembahasan Permasalahan dan Penerapan KUHAP: Pemeriksaan Sidang Pengadilan, Banding, Kasasi, dan Peninjauan Kembali (pg. 314–317), explains that circumstantial evidence does not establish a fact directly. Rather, it operates through the relationship and conformity between facts revealed during trial proceedings. Through such conformity, judges construct a complete picture of the events in order to draw conclusions regarding the occurrence of a criminal offense and the identity of the perpetrator.

Moreover, circumstantial evidence does not possess an independent form or evidentiary “container” of its own. Its existence depends upon other forms of evidence, namely witness testimony, documentary evidence, and the statement of the accused. Accordingly, circumstantial evidence is not a standalone evidentiary tool, but rather the product of an assessment and correlation between those primary forms of evidence. For that reason, the sources of circumstantial evidence are strictly limited under Article 188 paragraph (2) of the KUHAP.

In addition, circumstantial evidence cannot be employed arbitrarily. Judges are, in principle, required to first maximize the use of primary evidence before resorting to circumstantial inference. Circumstantial evidence only becomes relevant where other forms of evidence are insufficient to satisfy the minimum evidentiary threshold. In this context, judicial caution and precision become essential, as the probative value of circumstantial evidence entirely depends upon the strength of the logical relationship between the established facts.

The concept of circumstantial evidence itself is not exclusive to Indonesian criminal procedure. Comparable forms of evidentiary reasoning also exist in other jurisdictions, particularly within common law systems such as the United States. One of the most frequently cited examples of its application can be found in Holland v. United States.

In that tax evasion case involving Homer J. Holland, the prosecution did not possess direct evidence regarding the concealment of income. Nevertheless, the court observed a significant increase in wealth that was disproportionate to the income reported by the defendant, and from this discrepancy concluded that unreported income had existed.

Transformation into Judicial Observation Under The 2025 Criminal Procedure Code (Law No. 20 of 2025)

With the enactment of the 2025 Criminal Procedure Code, there has been a conceptual shift in the understanding of circumstantial evidence. Under the previous KUHAP regime, circumstantial evidence was recognized as a distinct category of evidence derived exclusively from witness testimony, documentary evidence, and the statement of the accused. Under the new regime, however, its function is no longer formulated as a separate evidentiary category but is instead reflected through the concept of judicial observation under the Art. 235 of 2025 Criminal Procedural Code.

Conceptually, judicial observation carries substantially the same meaning as circumstantial evidence. Eddy O.S. Hiariej et al., in Anotasi KUHAP 2025 (pg. 230), explain that this concept was introduced to replace circumstantial evidence as previously recognized under the former KUHAP. They further note that circumstantial evidence constitutes accessory evidence derived from other evidence presented during trial proceedings.

Therefore, judicial observation essentially performs the same function previously attached to circumstantial evidence, namely connecting and assessing the conformity between facts revealed during trial proceedings. The distinction lies in the fact that, whereas circumstantial evidence under Article 188 of the previous KUHAP was confined to certain evidentiary sources, the current framework embeds such assessment directly within the overall evidentiary process, provided that it is based on lawful evidence properly examined during trial.

Judicial Observation Through Factual Conformity in Corruption Proceedings

Within the context of corruption proceedings in Indonesia, judicial panels frequently connect various facts revealed during trial, particularly where the accused denies the alleged conduct. Such an approach can be observed in Supreme Court Decision No. 1616 K/Pid.Sus/2013 concerning Angelina Sondakh in the bribery case with regards to the construction project for the Pusat Pendidikan, Pelatihan, dan Sekolah Olahraga Nasional (P3SON) in Hambalang.

Facts revealed during trial demonstrated the existence of Blackberry Messenger (BBM) communications between the accused and witness Mindo Rosalina Manulang, who at the time acted as an intermediary for Permai Group. In those communications, coded terms such as “Apel Malang” and “Apel Washington” were allegedly used to refer to money, including a message stating: “1 kilo dulu ya bu. Krn stock ku habis…”, which appeared in the context of a request for funds and was subsequently followed by money transfers to parties designated by the accused.

Although the accused denied ownership of the mobile phone and denied the existence of such coded communications, the Cassation Panel of Judges chaired by Dr. Artidjo Alkostar constructed a judicial observation based on the conformity between the communications, witness testimony, and the realization of fund transfers occurring within a closely connected timeframe. From this conformity, the coded terms were interpreted as representations of monetary transactions, thereby forming a coherent chain of facts.

Judicial Observation From The Defense Perspective

From the perspective of defense counsel, judicial observation is fundamentally shaped by the manner in which judges organize and interpret facts presented during trial proceedings. Accordingly, the defense’s role is not merely to dispute isolated facts, but rather to examine whether the relationship between those facts is sufficiently strong to support a definitive legal conclusion.

For instance, the existence of communications, meetings, or financial transfers does not automatically establish unlawful conduct where no connection can be demonstrated to criminal intent or abuse of authority. In this regard, defense counsel must carefully position each fact within its proper context, rather than allowing it to be transformed into a conclusion unsupported by adequate evidentiary foundation.

Furthermore, it is essential to ensure that every asserted fact is genuinely supported by lawful evidence properly examined during trial proceedings. Defense counsel must carefully distinguish between facts actually proven in court and interpretations constructed from those facts. This distinction is crucial because circumstantial inference can only be derived from facts supported by a clear evidentiary basis.

On the other hand, the defense must also focus on dismantling the prosecution’s evidentiary construction. The issue is not merely whether certain facts exist, but whether those facts are genuinely interconnected and legally relevant to the constituent elements of the alleged offense. A merely chronological relationship between facts is insufficient to justify a legal conclusion. By rigorously testing the relationship between facts, the defense may demonstrate that the conclusion advanced by the prosecution is not inevitable and that alternative interpretations remain reasonably possible based on the evidence presented.

Conclusions

Ultimately, circumstantial evidence, or what is now conceptualized as judicial observation, lies within the realm of judicial assessment formed through the manner in which judges connect facts revealed during trial proceedings. Accordingly, the role of defense counsel does not lie in “submitting” circumstantial evidence itself, but rather in organizing and scrutinizing facts in a manner that produces the most reasonable and defensible factual construction.

It is precisely at this stage that the role of defense counsel becomes critical in ensuring that conclusions drawn by the judicial panel are genuinely supported by sufficient evidentiary basis and do not exceed what may reasonably be established from the facts presented at trial.