East Timor Law Journal
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Court Reports 2007
Relevance of the law applied in the case of Rogerio Tiago Lobato JUSTICE UPDATE 28/05/2007
INTRODUCTION
On 10 May 2007, the East Timor Court of Appeal handed down a final decision (Acordão Colectivo[1]) carrying the full force of the law against Rogerio Tiago Lobato (the convicted person) in the case of murder and illegal distribution of weapons to civilians. The Panel of Judges consisting of judges Claudio Ximenes, Jose Luis da Goia and Maria Natercia Gusmao Pereira examined the respective grounds for appeal lodged by the legal representative of the convicted person and the Public Prosecutor.
The Panel decided to uphold the decision issued by the Dili District Court on 7 March 2007 and rejected the appeals raised by the legal representative of the convicted person and the prosecutor and found them be without sufficient grounds to revoke the decision of the Dili District Court.
In their decision the judges of the Court of Appeal summarized the grounds set out in the appeal, the crimes committed and charged in the indictment, as well as the legal facts that were revealed in the hearing.
FACTS AND LEGAL ANALYSIS
- Legal Fact. In their decision, the Panel of Judges from the Court of Appeal stated that[2] :
- The Court of Appeal found insufficient grounds in the appeals lodged respectively by Rogerio Tiago Lobato and the Public Prosecutor against the decision issued by the Dili District Court.
- The Court of Appeal upheld the decision of the Dili District Court which sentenced Rogerio Tiago Lobato to 6 years imprisonment for the crime of murder, in violation of Article 338 of the Indonesian Penal Code, as well as 4 years imprisonment for crimes in violation of Section 4.7 of UNTAET Regulation 5/2001 on Firearms, Ammunition and Explosives. However after applying the principle of subsidiarity, Rogerio Tiago Lobato was sentenced to 7 years and 6 months imprisonment.
JSMP will hereby attempt to analyze the legal facts by examining each of the articles charged against the convicted person, namely: 1). Article 338 of the Indonesian Penal Code, 2). Section 4.7 of UNTAET Regulation No. 05/2001, which formed the basis for the respective decisions issued by the Dili District Court and the Timor Leste Court of Appeal.
The appeal raised by the Appellant Rogerio Tiago Lobato basically claimed that he had not committed the criminal act of murder and that the legal procedures applied by the court and its subsequent decision were the result of a political process. Also the appellant challenged the application of Article 338 of the Indonesian Penal Code which was considered to be in violation of the principle of nullum crimen sine lege, e nulla poena sine lege (No one shall be tried and convicted for an act that does not qualify in the law as a criminal offence at the moment it was committed).[3]
On the other hand, the Public Prosecutor challenged the length of sentence handed down by the Dili District Court against Rogerio Lobato for being too lenient in comparison with the recommended sentences for each of the charges.[4]
Legal Analysis
Pursuant to the aforementioned legal facts, JSMP will now attempt to provide some analysis on the articles referred to above which formed the basis for the Court of Appeal’s decision. This legal analysis merely refers to the applicable law and is not intended to interfere with the decision of the Court of Appeal which carries the full force of the law.
The following articles were considered in the Court of Appeal’s decision.
Ø Article 338 of the Indonesian Penal Code states that: “any person who deliberately takes the life of another shall be charged with manslaughter, which carries a maximum sentence of 15 years”.
The important wording here is “who deliberately takes the life of another” which means that the individual in question must directly carry out the murder. According to the Indonesian Penal Code, this article can be applied to any person who directly commits murder/manslaughter, however where death occurs as a consequence of an individual’s moral support, Article 338 of the Indonesian Penal Code can not be charged against that individual.
The crucial issue for consideration is the legal subject, meaning the legal facts relating to the Tibar incident that resulted in the deaths of four individuals. The question is, when the Tibar incident took place, did Rogerio Lobato also fire shots at the four victims who died in this tragic event, or was he even at the scene of the crime, or did he have an alibi. The Court of Appeal claimed in their decision that Rogerio Lobato was a Moral Actor and not a Material Actor (JSMP interprets this to mean that a Moral Actor is a person who only supports and facilitates the commission of the crime, whereas a material actor is a person who directly, and either individually or jointly, commits a criminal act).
Without wishing to dismiss the charges of the Public Prosecutor and the Court’s decision, JSMP believes the most relevant article to be considered in relation to the charges and subsequent decision is Article 55 (1) of the Indonesian Penal Code which states that a personal is liable for a criminal act when:
That person commits, orders or participates in the act;
That person uses a gift, promise, abuse of power or influence, violence, threat or deceit, or provides the opportunity, means, or information to deliberately induce the commission of the act.
Section 4.7. of UNTAET Reg. 5/2001 states that “any person who without lawful authority imports into East Timor any firearm, ammunition or explosive with the intent to disrupt public order, or who uses any firearm, ammunition or explosive in the disruption of public order is guilty of a criminal offence and shall be punished by a fine not to exceed fifty thousand U.S. dollars (USD 50,000) or a term of imprisonment not to exceed twenty years, or both”.
The element of this article considered relevant in this case is: “uses any firearm, ammunition or explosive to disrupt public order”. JSMP believes that this section is extremely relevant to the formulation of charges by the Public Prosecutor and for the Court in determining its decision, as the witnesses summoned by the court gave matching testimony that Rogerio Tiago Lobato did in fact distribute firearms, ammunition and explosives belonging to the PNTL to civilians in order to create instability and disrupt public order.
Another element that requires scrutiny is related to Section 4.7 of UNTAET Regulation 5/2001, whereby before charging the convicted person with the aforementioned section the following question should be asked: did he personally (not in his capacity as the RDTL Minister of Interior) import firearms, ammunition or explosives to disrupt public order.
CONCLUSION & RECOMMENDATIONS
- CONCLUSION
With reference to the aforementioned facts and legal analysis, JSMP concludes that Article 338 of the Indonesian Penal Code should not have been seen as relevant to the initial formulation of charges and the deliberations of the Dili District Court and the Court of Appeal in their respective decisions, as the juridical facts indicate that the convicted person was not directly involved in the act of murder, but merely provided support and facilitated its commission. Article 55 (1) of the Indonesian Penal Code is the relevant article that should have been applied in this case.
The decision to apply the principle of subsidiarity set out in Article 65 of the Indonesian Penal Code is also inappropriate. Careful examination would indicate that the most severe penalty should have been handed down against the convicted person who has committed multiple criminal acts, namely a maximum term of 20 years imprisonment or a maximum fine of US$ 50,000 pursuant to Section 4.7 of UNTAET Regulation 05/2001.
- Recommendation
In the aforementioned case, JSMP recommends that:
Those seeking justice should respect the Court’s decision which carries the full force of the law;
Judicial actors involved in the decision making process should refer to the juridical facts and the laws that prescribe the criminal acts applicable to a person’s conduct.
Court actors and the prosecution unit should continue to examine and investigate incidents that occurred during the crisis and pursue any perpetrators who have yet to be investigated or brought to justice.
[1] Acordão refers to the Panel of Judges from the Court of Appeal examining the appeal lodged by both the Public Defender and Public Prosecutor pursuant to a joint agreement, without the need to conduct a hearing in the presence of the relevant parties.
[2] Refer to Court of Appeal Decision in Case No. 16/CO/07/TR, dated 10 May 2007
[3] RDTL Constitution, Articles 31.2 and 31.3, as well as Article 1 of the Indonesian Penal Code.
[4] Refer to Court of Appeal Decision, Processo no. 16/CO/07/TR, p. 20.
For further information please contact: Roberto Pacheco Coordinator of Legal Researchers, JSMP Email : bebeto@jsmp.minihub.org or contact: Dr. Timotio de Deus, JSMP Director Email : timotio@jsmp.minihub.org Landline: 3323 883
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Appeal Decision in case of Rogerio Tiago Lobato Press Release 17 May 2007
On 10 May 2007, the East Timor Court of Appeal handed down a final decision carrying the full force of the law against Rogerio Tiago Lobato (the convicted person) in the case of murder and illegal distribution of weapons to civilians. The Panel of Judges consisting of Judges Claudio Ximenes, Jose Luis da Goia and Maria Natercia Gusmao Pereira examined the respective grounds for appeal lodged by the legal representative of the convicted person and the Public Prosecutor.
The Panel decided to uphold the decision of the Dili District Court and rejected the appeals raised by the legal representative of the convicted person and the prosecutor and found them be without sufficient grounds to revoke the decision of the Dili District Court.
The appeal raised by the Appellant Rogerio Tiago Lobato basically claimed that he had not committed a criminal act and the legal process and decision issued by the court were the result of a political process. Also the appellant challenged the application of Article 338 of the Indonesian Penal Code.
On the other hand, the Public Prosecutor challenged the length of sentence handed down by the Dili District Court against Rogerio Lobato for being too lenient in comparison with the recommended sentences for each of the charges.
Article 338 of the Indonesian Penal Code states that “any person who takes the life of another shall be charged with manslaughter, which carries a maximum sentence of 15 years”. Whereas Article 4.7. of UNTAET Reg. 5/2001 states that “any person who without lawful authority imports into East Timor any firearm, ammunition or explosive with the intent to disrupt public order, or who uses any firearm, ammunition or explosive in the disruption of public order is guilty of a criminal offence and shall be punished by a fine not to exceed fifty thousand U.S. dollars (USD 50,000) or a term of imprisonment not to exceed twenty years, or both”.
In this appeal case, the Panel of Judges from the Court of Appeal decided that:
- The Court of Appeal found insufficient grounds in the appeals lodged respectively by Rogerio Tiago Lobato and the Public Prosecutor against the decision issued by the Dili District Court.
- The Court of Appeal upheld the decision of the Dili District Court which sentenced Rogerio Tiago Lobato to 6 years imprisonment for the crime of murder, in violation of Article 338 of the Indonesian Penal Code, and 4 years imprisonment for violating Section 4.7. of UNTAET Regulation 5/2001, however after applying the principle of subsidiarity, Rogerio Tiago Lobato was sentenced to 7 years and 6 months imprisonment.
Article 338 of the Indonesian Penal Code carries a maximum sentence of 15 years imprisonment, whereas Section 4.7 of UNTAET Regulation 5/2001 carries a maximum sentence of 20 years and a maximum fine of US$ 50.000. However, Article 65 of the Indonesian Penal Code applies the principle of subsidiarity, resulting in a single sentence of 7 years and 6 months imprisonment.
JSMP believes that Article 338 of the Indonesian Penal Code is irrelevant to this case, and should not have been considered by the Dili District Court and the Court of Appeal in sentencing, as the juridical facts indicate that the convicted person was not directly involved in the commission of murder (the convicted person was not the legal subject in the murders that took place in Tibar and other locations according to witness testimony provided to the court). The shootings (murders) that took place in several locations in 2006 were committed by other legal subjects and the convicted person had limited involvement in supporting these events. Article 338 of the Indonesian Penal Code explicitly states that any person who deliberately commits a murder shall be charged under Article 338 of the Indonesian Penal Code.
JSMP has observed that the convicted person has adhered to the sentence issued by the court and has been serving his sentence in the Becora prison since 10 May 2007.
In relation to the aforementioned case, JSMP recommends that any judicial actor involved in the decision making process at any level should refer to the juridical facts and the law setting out the criminal acts applicable to a person.
For further information, please contact: Leonidio Marques Legal Researcher, JSMP E-mail: nidio@jsmp.minihub.org Or contact: JSMP Director, Timotio de Deus, E-mail: timotio@jsmp.minihub.org Landline: +670 3323883
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JSMP Press Release Rogerio Tiago Lobato Sentenced to 7 Years 6 Months Prison 08 March 2007
As planned, the proceedings to hear the verdict in the case of the illegal distribution of weapons by the former Interior Minister of Timor-Leste Rogerio Tiago Lobato and associates took place on Wednesday 07/03/2007 at 14:30 hrs Timor-Leste time.
The proceedings were accompanied by very heavy rain but this did not lessen the intentions of members of the public to attend the hearing because they filled the court room, including the former Prime Minister of Timor Leste Dr. Mar’ie Alkatiri as well as his wife listening attentively to the reading out of the decision by the Presiding Judge DrIvo Nelson de Caires Rosa Batista. Certainly, the attendance by the former Prime Minister was to give moral support to his accused compatriot Rogerio Tiago Lobato and associates who were sitting in the dock to hear the verdict.
Judge Ivo read the decision out himself, which was more than a hundred pages long, and explained the decision in the case of the illegal distribution of weapons to the civilian population on the basis of assisting the police who were already in a state of disintegration at that time, according to the accused. At the conclusion of the decision, the Judge sentenced Rogerio Tiago Lobato to seven (7) years and six (6)months imprisonment.
Upon hearing the verdict, the lawyers for the accused Rogerio TiagoLobato, headed by lawyer Dr Paulo dos Remedios, through lawyer Dr Luis, immediately appealed to the court not to put the decision in to effectstraight away.
The judge sentenced the accused Francisco Salsinha dan Marcos “Labadie”Piedade to approximately 6 months imprisonment but he was released to serve the sentence outside for 1 (one) year. In relation to FranciscoSalsinha and Marcos “Labadai” Piedade, the judge applied Article 4paragraph 4.7 of UNTAET Regulation No 5/2001 on illegal possession of weapons. In relation to the accused Francisco Xavier Viegas, the judge imposed no penalty because he could find no evidence that the accused was in illegal possession of weapons in the same way as were the accused Francisco Salsinha and Marcos “Labadai” Piedade so in the end, the judge unconditionally released the accused Francisco Xavier Viegas.
In view of all the decisions that have been made in relation to all of the accused, JSMP very much respects the judges because in making those decisions, the judges acted very professionally and did not pay regard tothe social position or strata of the persons accused even though there were some who were dissatisfied with the decision because it was not in accordance with their expectations and, in the opinion of JSMP, this is a very positive step for the future development of the judicial system inTimor- Leste.
JSMP appeals to all layers of the community to respect the court’s decision that has been made by the Panel of Judges in respect of the accused so that the further process can be continued in accordance with the expectations of the community as the process in this case must be continued because the lawyers for the accused Rogerio Tiago Lobato immediately appealed the court’s decision.
FOR FURTHER INFORMATION PLEASE CONTACT: Dr. Timotio de Deus Director, JSMP Telephone: 332 3883 Email :timotio@jsmp.minihub.org
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JSMP PRESS RELEASE THE ACTUAL PRIME MINISTER PRESENT TO GIVE TESTIMONY AT THE HEARING IN CONNECTION WITH THE CASE OF THE ALLEGED ARMING OF CIVILIANS 06 Februari 2007
The Dili District Court, through the panel of judges, conducted a trial hearing at the Court of Appeal to hear testimony from the witnesses whose presence was required by the lawyer of the defendant. The trial hearing held on 06 February 2007 began 09.34. As scheduled, there were four witnesses to be present at the hearing. The key witness present was José Ramos-Horta (actual Prime Minister of Timor-Leste), Mário dos Santos, Deonigio dos Santos and Bendito Freitas. Bendito Freitas failed to appear at the hearing of evidence and according to the presiding judge it was because the court had not managed to notify the witness.
Only the witness José Ramos-Horta, one of the three witnesses who had given their, spoke much more in his testimony in relation to the alleged arming of timorese civilians.
When the witness Ramos-Horta was asked to give his testimony in connection with the criminal case of arming of civilians with Rogério Tiago Lobato being the defendant, the witness Ramos-Horta, the actual Prime Minister of Timor-Leste, said in his testimony that the defendant Lobato was a good man and dedicated a great contribution to the country’s development. Therefore, the witness Ramos-Horta said that it was impossible for the defendant Lobato to destroy his own homeland as stated in the accusation against him.
Also, when asked by the defender regarding the provision in article 5 of the laws No.8/2003 on Internal Security that every citizen is obligated to cooperate with the security forces, the witness Ramos-Horta said that he never knew about the existence of that provision.
In his testimony, witness Ramos-Horta said that he never heard or saw the defendant Lobato performing such an act which was incompatible with the RDTL Constitution. He also stressed that he never heard and saw that the defendant Lobato had such an initiative to eliminate all the opposition leaders and the petitioners.
The witness said that on an imprecise date they held a meeting at the residence of the former Prime Minister Mari Alkatiri. The meeting was attended by the National Security Council. The main issue of the meeting was about the critical situation Timor-Leste was facing at that time and the petitioners’ claims. However there was no talk as to arrest or eliminate the petitioners.
According to Ramos-Horta, on 28 May 2006, the General Commander Paulo de Fátima Martins informed him that there were several PNTL owned weapons used by the Border patrol Unit had been transferred to Dili. However, Paulo did not mention specifically who gave order, what these weapons would be used for and to whom they would be delivered etc.
Referring to the Secret Security Force allegedly formed by the defendant Lobato, the witness Ramos-Horta said that, to his knowledge, such an issue had never been discussed at the council of ministers regarding the creation of group of armed civilians with the aims of supporting PNTL (Polícia Nacional de Timor-Leste). The witness Ramos-Horta said that it was more likely an initiative from Lobato because the security situation in and surrounding Dili was not under the control of the police as before and most of the police officers left their barracks in order to protect themselves from members of F-FDTL. It was because there had been rivalry among the two forces. In view of the circumstances, it can be understood that Lobato had an initiative in arming civilians (former FALINTIL fighters) who were still loyal to the Government.
He also added that the incident occurred on 28 May 2006 in front the Government Palace was triggered by the third party. However the witness Ramos-Horta did not clarify the identity of the third party who was involved in the incident. Until now, the Government is continuing to make as much efforts as possible to identify that party so that it can be held responsible for rogue actions before the court.
JSMP welcomes the presence of the Prime Minister José Ramos-Horta to give his testimony and it is hoped that the elements in the community, in particular, the leaders to continue to cooperate with the court so that judicial process in trying the case of the alleged weapons distribution to civilians involving the defendant Rogério Lobato can be handled smoothly and successfully.
FOR FURTHER INFORMATION PLEASE CONTACT: Maria de Vasconcelos Acting Director, JSMP Telephone: 332 3883 Email: vasconcelosmerry@yahoo.com
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JSMP PRESS RELEASE FORMER VICE-MINISTER OF THE INTERIOR ASKED TO TESTIFY AT THE COURT HEARING IN CONNECTION WITH THE CRIMINAL CASE OF ALLEGED ARMING OF CIVILIANS 01 Februari 2007
On 31 January 2007, former Vice-minister of the Interior, who is currently the Minister of the Interior, was asked to appear at the court to give his testimony at the trial hearing in connection with the criminal case of alleged arming of civilians. The hearing held jointly by the panel of judges of the Dili District Court and the Timor-Leste’s Court of Appeal began at 09.40 and finished at 10.50. The hearing that lasted for about one hour was especially to hear the testimony from the witness ALCINO BARRIS.
When asked about the case of creation of the Secret Security Force and alleged arming of civilians by the defendant Rogério Tiago Lobato, the witness Alcino Barris said that he did not know anything about the allegation. He just had the information regarding the case after the crisis in Timor-Leste.
Asked if he knows who should be held responsible for the nine members of PNTL shot dead in front of Ministry of Justice on 25 May 2006, the witness Alcino Barris said that the United Nations is the one to hold responsible for the incident. The defendant Rogério Tiago Lobato is not to be responsible for it, because at that time it was the UNPOL (United Nations Police) who was controlling them at the PNTL Headquarters and led the PNTL officers on foot from their headquarters towards Obrigado Barracks and afterwards the eight members of PNTL were shot dead. Inspector Afonso de Jesus, who appeared at the court on 15 January 2007, said that there was one more PNTL officer shot dead while he was in the car.
The witness Alcino Barris was also asked if the Ministry of the Interior had the authority to create a group of armed civilians in order to support PNTL. He said that according to his own interpretation of article 8 of the Laws No. 8/2003 on Internal Security the Ministry of the Interior is competent to do so. After examining the verification of the legal interpretation referred, JSMP found that this article mentioned that only the Government has the competence perform such an act not the Ministry of the Interior. JSMP knew that after being confirmed by the Presiding Judge as to “whether it was his own interpretation”, Alcino Barris recognized it.
Besides that, the witness Alcino Barris informed the Court that he received many reports from both local authorities and community that the Railos’ group always terrorized and intimidated local residents in Liquiça.
JSMP highly appreciates the willingness of all the witnesses to appear at the court for the hearing. JSMP and we all hope that the testimonies given by the witnesses at the court may be used as a deliberation in order to disclose the truth before a sentence is handed down. We hope that the court can make a fair and true decision which is accepted by all parties.
In relation to the statements made by the witnesses at the court hearing including those by the witness Alcino Barris, JSMP recommends that all those who have been treated unjustly report any forms of wrongdoing to the authorities. In this case, everyone can approach the nearest police station or the Office of the Prosecutor to complain so that the crime perpetrator can be brought to justice in compliance with the existing laws in Timor-Leste. If we just make an issue of criminal acts committed against us and do not report them to the authorities, problems remain unresolved because no efforts are made to follow up criminal circumstances.
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JSMP PRESS RELEASE The Witness Paulo De Fatima Martins Justified the Issuance of F2000 Automatic Guns by the Defendant Rogerio Lobato 30 Januari 2007
An incessant session of the trial hearing against Rogério Tiago Lobato and the other co-accused continues. The hearing of evidence was held on 29 January 2007 with the presence of two witnesses namely Paulo de Fátima Martins (General Commander of PNTL) and Felix da Costa (Maubara Sub-district Administrator, Liquiça district). Actually, the court had to hear the testimony from one more witness by the name of Bendito Freitas. However the presiding judge said that the witness Bendito Freitas failed to appear at the hearing because the court had not managed to notify him. Therefore, the court could only hear the two witnesses who were present. The witness Bendito will be notified once again to appear at the trial hearing to be held on 6 February 2007.
On the basis of the testimony given by the witness Paulo de Fátima Martins (General Commander of PNTL appointed since 2001 to 2007), JSMP noted that the witness justified the issuance of a PNTL (Polícia Nacional de Timor-Leste) owned F2000 automatic gun from the PNTL armory by the defendant Rogério Lobato on 28 April 2006. The witness Paulo himself recognized that a PNTL owned F2000 automatic gun had been indeed removed from the armory by the defendant Lobato. Although giving such a testimony before the court, the witness Paulo said that he did not know about the purposes and reasons why the defendant Lobato removed the gun from the armory. The witness Paulo also recognized that there had been previously an F2000 automatic gun kept at the residence of the defendant Lobato. The gun was used by the defendant’s bodyguard to provide security there. It was explained by the witness Paulo that the purpose of purchasing and supplying F2000 guns for PNTL was to provide Government VIPs with security close protection. The witness Paulo raised a question of F2000 automatic gun removed by the defendant and what the gun was used for.
When referring to the procedure of removal and issuance of PNTL uniforms, particularly URP (Unidade Reserva da Polícia = Police Deserve Unit) or UPF (Unidade Patrulhamento Fronteira = Border Patrol Unit) uniforms, there had been contradicting statements between that made by the witness Paulo and by the witness Adalberto Mau. The witness Adalberto Mau who was the officer in charge of PNTL uniform received ordered from the PNTL Finance Director, Basílio de Jesus to remove and deliver URP uniform to the defendant Lobato at his residence in Fomento-Dili. Hence, in accordance with the statement made by Paulo de Fárima Martins before the court, the Rogério Lobato’s lawyer found that there was an awkwardness of the testimony given by both witnesses and requested the court, as provided in article 140 of Criminal Procedure Code, to make a cross-check of the statement with the presence of the witnesses. Based on that reason, the court fulfilled the request from the defendant’s lawyer require once again the presence of the witnesses Adalberto Mau and Paulo at the trial hearing that was held on 30 January 2007, at 14.30 in order to verify the reliability of their statements.
JSMP welcomed the court’s decision because all the statements made by the witnesses including those by Paulo de Fátima Martins and by PNTL officer Adalberto Mau ought to be taken into a thorough consideration.
The provision regarding the witness obligation to make fair and true statement has been provided in article 118(1) of Criminal Procedure Code:
The aggrieved person takes an oath and he or she is subject to the duty to truth and the ensuing the criminal liability for the breach thereof.
JSMP hopes that the communities understand and accept the current judicial process. JSMP respects all the statements made by the witnesses at the trial hearing. During the smooth judicial proceeding, JSMP observed that all questions were answered properly by the witnesses, although sometimes the witnesses had to answer boring questions made by the court actors.
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JSMP JUSTICE UPDATE 25 January 2007 The Court Conducted a Hearing for one of the Witnesses in the Presence ofother Co-Witnesses to be at the Courtroom
Introduction
On 23 January 2007, The Dili District Court continued to hear the case of Rogério Lobato and his co-accused at the Court of Appeal ofTimor-Leste. The hearing of evidence conducted in the case against the defendant Rogério Lobato and other co-accused was to hear the witnesses of the Timor-Leste National Police Logistics among others: Sub-Inspector Felismino Maia, Adalberto Mau and Denis Galucho[1]. As with the three members of the Logistics[2], the Court, through the panel of judges, investigated Jerónimo Lay da Costa Nunes, also known as RONI, the private driver of the defendant Rogério Tiago Lobato. The witness RONI was a member of PNTL and private driver for the defendant Lobato since 2004 up till 25 May 2006.
Statement from the witnesses
During the whole process of hearing, JSMP (Judicial System MonitoringProgram) knew that the facts around the chronology of the withdrawal and distribution of URP uniform[3] ordered by the defendant Lobato to the civilians began to be revealed. According to the statement from the witnesses, the Finance Director of PNTL received order from the defendant Lobato by telephone to deliver the uniforms to the defendant. The finance director then[4] forwarded the order directly to the logistics officer in-charge of the police uniform by the name of Adalberto Mau to execute the order. The witness Adalberto stated that he did execute the order though by phone.
The Presence of Other Co-witnesses in Courtroom
JSMP finds that the incessant court hearing held for the case of thedefendant Rogério Lobato and his co-accused was a good and progressive step in Timor-Leste’s justice sector. As we know that committing crime by arming civilians becomes a key factor in restoring security situation that is most expected by whole community in Timor-Leste. However, JSMP istroubled when some co-witnesses who had been notified by the court to give their testimony at the hearing were also present at the courtroom at the same time while other was testifying. The witness almost present at the courtroom was Herónimo Lay da Costa, also known as RONI who had been notified by the court on 23 January 2007. JSMP observed carefully that the abovementioned witness was always present at the courtroom while other was testifying at the court hearing. In fact, he was one of the witnesses whom the court had notified.
The Article 263 of Criminal Procedures Code provides that:
a. While evidence is being presented, everyone who shall give their statement must remain outside the courtroom without access to any information on what is occurring during the judicial hearing.
b. It is the responsibility of the court clerk to ensure that Article 263, item (1) is complied before and after the presentation ofevidence.
It is provided in the article 271 item (1) that the witnesses who have been notified by the court shall be heard one after another, in accordance with the list of witnesses to be heard, unless the judge decides otherwise under sufficient grounds.
During the trial for the criminal case of arming civilians, JSMP observed that the court actors attending the case did not take it serioulsy in processing the case. The procedure of examining the witnesses was carried out in accordance with article 271 item (1) above. However, the court actors did not fully comply with article 263 of Criminal Procedure Code.
JSMP knew exactly that the name of witness RONI had been scheduled by the presiding judge on 15 January 2007 to appear at the hearing due on 23 January 2007, at 09.30am. JSMP finds, however, that the witness RONI appeared at all time before the courtroom for judicial inquiry and had access to information provided by other witness who was testifying before the Court.
A concrete example given by JSMP is that JSMP knows precisely that the witness RONI showed an active participation at the hearings for Afonso de Jesus, Basílio de Jesus, Miguel de Deus and Carlos do Costa do Rego. The four witnesses were also members of PNTL.[5]
A new question arises. Is it true that the court actors did not take it carefully to make the witnesses appear before the trial? Is true that the court actors violated article 263 item (2) of Criminal Procedure Code on persons who shall be heard before the court?
Discussion held by JSMP with court actors attending this case
1) JSMP held discussion with Prosecutor
JSMP held discussion with the court actors attending the case[6] in order for them to verify it. As JSMP discussed with Prosecutor Bernardo C.Fernandes and Prosecutor Felismino Cardoso who attended the case, it was explained that, in accordance with article 263 of Criminal Procedure Code, any one who shall appear before the court hearing to testify as witness must not enter the courtroom while other witness is testifying. However Prosecutor Bernardo admitted that he did not know at that time that the witness was present at the courtroom. It was because there were many people in the courtroom. Therefore, he could not identify each of them and he had to concentrate attention on merely the witness being present before the courtroom to testify.
2) JSMP Held Discussion With Judge
JSMP had the same explanation from the judges who attended the case. Judge António admitted that the judges did know if the witness had been in the courtroom while the trial was taking place. The judges also did not know the witness. The court just gave order to the witnesses to appear before the court. Judge António Gonçalves told JSMP that the witness should not have entered the courtroom.[7] According to Judge António, if it really happened, then the police would be blamed for calling the person whom the police knew. It was also the fault of the court clerk who assisted the whole judicial proceedings. In accordance with article 263 item 2 of Criminal Procedure Code, the court clerk is responsible for complying with this provision before the trial begins. On the same occasion, Judge Ivo said that article 263 of Criminal Procedure Code applies to everyone. The court did not know that such unusual error occurred. Judge Ivo recognized that the panel of judges at that time could not identify each of those present at the courtroom.
3) JSMP Held Discussion with Lawyer
On the other hand, Lawyer Benevides Correia Barros expressed his opinionto JSMP that such a thing should not have happened.[8] Anyone who has been notified by the court to appear as witness in that case must not take part at the trial. As the witness, one must remain distant from the courtroom.
Witness Obligation
JSMP observes that the questions asked by the lawyer mostly seemed to bethe tricky ones which aimed at laying criminal responsibility on thewitness who was testifying before the trial.
JSMP also observes that the court actors attending this case obliged the witnesses to answer every question asked to them,[9] whereas in fact the rights and the provision have been provided in article 123 of Criminal Procedure Code on the rule of Examination of Witness.
Article 123 item (2) provides that: A witness has no obligation to answer any question, if they find that the answer can lay criminal responsibility on them.
On the rule witness examination as provided in article 129, in particular, item (2), it states that:
Any tricky or wrong questions shall not be asked to the witness, that is, the questions which can obstruct the witness to answer with spontaneity and sincerity.
During the whole trial for this case, JSMP observes that the defense lawyer repeatedly asked tricky questions which could possibly aggravate the criminal responsibility of the witness who was giving testimony. On the other hand, the witness was obliged by the panel of judges to answer all questions asked to him. In fact, according to Criminal Procedure Code currently applicable, the rights and obligations of the witness are almost similar to the rights of the defendant as to whether or not he is willing or unwilling to answer the questions asked to him.[10]
When JSMP attempted to consult with the presiding judge for the case, it was explained by Judge Ivo that everyone who is summoned to appear before the court is to assist the court in order to find the truth. Thus, the witness had obligation to answer every questions asked by any parties, in accordance with article 123 item (1d) of Criminal Procedure Code. The witness can simply say whether he knows or he does not. If the questions tend to be tricky, in accordance with article 123 item (2) of Criminal Procedure Code, the witness has the right not to answer them because such questions aim at laying criminal responsibility on him.
Conclusion
After having all explanations confirmed, JSMP concludes that such mistake occurred due to the lack of good cooperation between the Court, Office ofthe Prosecutor and UNPOL/PNTL who were tasked to bring the witness before the court. On the order hand, the court clerk did not take it seriously in identifying the witnesses so as to avoid the presence of the witness at the courtroom before the trial begins.
Recommendations/suggestions
Having learned from the above mistake, JSMP would like to give the following recommendations:
1. JSMP recommends that the court clerk assisting the whole proceeding firstly make sure the identity of everyone present at the courtroom before the trial begins. The witness whom the court has notified is present at the courtroom must be taken outside in accordance with the applicable Criminal Procedure Code, so that the witness cannot have access to statement or information given by other witness who testifies before the court.
2. JSMP recommends that UNPOL and PNTL officers tasked with security precautions inside and outside the courtroom check everyone present at the court. Police officers are not only to focus on security precautions but also identify the witnesses whom the court has notified. According to JSMP, PNTL or UNPOL officers in charge of calling the witness to appear before the court should perform their duties for security precautions by fully observing all legal aspects. Otherwise, all efforts and hard work will not be fruitful or bring the most expected results.
3. JSMP recommends that all court actors, in particular, single judge or the panel of judges who attends such a case always remind UNPOL/PNTL officers and court clerk at the courtroom of complying with article 263 of Criminal Procedure Code. According to JSMP, if no appropriate measures were taken to restore the judicial proceedings, the same mistake would repeat in the future.
[1] Witness Denis Galucho did not appear at the hearing for witness conducted on 23 January 2007 at the Court of Appeal of Timor-Leste because he was under medical treatment in Bali-Indonesia.
[2] The three witnesses were all members of PNTL (Polícia Nacional de Timor-Leste).
[3] URP stands for Unidade Reserva da Polícia. Besides that, URP is sometimes called Special Police. This Special Police Unit is tasked with guarding or patrolling along the border area between Timor-Leste and Indonesia.
[4] The officer in charge of PNTL Finance Director at that time was Inspector Basílio de Jesus. Basílio de Jesus appeared before the court for questioning held on 22 January 2007 at the Court of Appeal of Timor-Leste.
[5] JSMP finds that the witness RONI actively attended the hearing held on 22 January 2007. The Witness RONI took a seat right behind the family of the defendants.
[6] JSMP held discussion with the International Prosecutors Bernardo C. Fernandes and Felismino Cardoso at the Office of the Prosecutor, Kaikoli-Dili, on 24 January 2007. Besides that, on the same date, JSMP held discussion with National Judge António Gonçalves and the International Judge Ivo Nelson de Caires Rosa Batista in his office at the Dili District Court to discuss the same issue.
[7] The name of the witness RONI was not set in the file case. Only the court can authorize the summons for the witness RONI, and anyone whosenames were mentioned by other witnesses or the defendant at the hearing shall appear before the court in order to give their statement at thehearing.
[8] JSMP interviewed the lawyer Benevides Correia Barros on 24 January2007 in front of the Court of Appeal after the hearing was conducted. Benevides Correia Barros was the acting lawyer for the defendant Marcos Piedade, also known as LABADAIN, replacing the International lawyer Pedro Monteiro Andrade.
[9] As it was stressed by presiding judge at the hearing for the witness Vicente da Conceição, also known as RAILOS, that only the defendant has the right to be willing or reluctant to answer the questions. As the witness, one should answer all the questions asked to him.
[10] The right of the defendant to freely declare willing or reluctant to make statement at the hearing has been provided in article 60 (c) of Criminal Procedure Code (Código Prossessual Penal).
FOR FURTHER INFORMATION PLEASE CONTACT: Maria de Vasconcelos Acting Director, JSMP Telephone: 332 3883 Email:vasconcelosmerry@yahoo.com
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JSMP PRESS RELEASE MAJORITY OF THE TOP OFFICIALS OF THE TIMOR-LESTE’S GOVERNMENT ASKED TO BE PRESENT AS WITNESSES IN THE CASE AGAINST THE DEFENDANT ROGÉRIO F. T. LOBATO 23 January 2007
On 22 January 2007, the Dili District Court continued to hear the witnesses at the Timor-Leste’s Court of Appeal. The hearing was held by the same panel of judges presided by the judge Ivo Nelson de Caires Baptista Rosa from Portugal who was assisted by the judge Antonino Gonçalves and judge Teresa. Meanwhile, the prosecutor Bernardo C. Fernandes represented the Office of the Prosecutor.
In this session of hearing, the lawyer makes some changes. The new lawyer for the defendant Marcos Piedade, also known as Labadaen, as mentioned in the JSMP Press Release issued on 16 January 2007 regarding the replacement of his Legal Adviser for this case, whose official power of attorney was read out by the presiding judge at the hearing. The new lawyers are Benevides Correia Barros and José Camões. Both lawyers are from AATL (Asosiasi Advokat Timor-Leste). Consequently, Benevides C. Barros, SH and José Camões, SH officially became the lawyers for Labadaen replacing lawyer Pedro Monteiro Andrade from Cabo Verde and Zeni Alves Arndt. Whereas the defense lawyers for Lobato and the other co-accused consist of Luís Mendonça Freitas, Francisco Nicolau, Paulo dos Remédios and Nelson de Carvalho.
The reason why the defendant had his lawyer replaced was because the lawyer had no contact with the defendant most of the time during the process of the trial. Besides that, another difficulty that the defendant had was in relation to language. On one hand, both international lawyers who had ever assisted the case of the defendant Labadaen could not speak Tetum, on the other hand, the defendant could not speak Portuguese.
It needs to be mentioned that the witnesses brought before the trial were Eusébio Salsinha from Ministry of Interior and Mateus dos Santos Pereira, also known as ARAKAT and Leandro Lobato, also known as GREY HARANA from the FRETILIN Secret Security Force recruited by the defendant Rogério Tiago Lobato. During the trial proceeding, JSMP (Judicial Monitoring System Program) observed that statements made by the three witnesses were related to the background and purpose of forming the FRETILIN Secret Security Force as well as the facts concerning the 18 HK33 rifles received by the witness RAILOS and his co-witnesses in Liquiça.
The defense lawyers for the defendants Lobato, Francisco Salsinha and Francisco Viegas Xavier proposed 34 names to be notified by the court as their witnesses. George Barbosa da Silva, the international court clerk who assisted the trial proceeding informed JSMP that 21 of the 34 witnesses had been notified by the court. As the names were mentioned by the panel of judges, JSMP noted that the persons to appear at the court hearing were mostly the top officials of the Timor-Leste’s Government.
The top officials in this case were among others the Prime Minister of Timor-Leste José Ramos-Horta, the Minister of Interior Alcino Barris and José Reis from CCF (Comité Central de FRETILIN = FRETILIN Central Committee), etc. Whereas another witness to appear before the court was Brigadier Michael Slatter from Australia, the Stabilization Force Commander who arrived in Timor-Leste on 25 May 2006 in order to restore security situation.
In principle, JSMP welcomes the presence of the Timor-Leste’s top officials at the court hearing to give their testimony relating to criminal case of the alleged arming of Timorese civilians which brought charges against the defendants. JSMP fully understands the judicial process in accordance with Title V of the Criminal Procedure Code on Proof currently applicable in Timor-Leste. However, JSMP is very much hopeful that the presence of those top officials will blow fresh air into the law enforcement and justice in Timor-Leste. Thus, the whole community thirsty for law enforcement and justice will turn out to be sympathized with their collaborative attitude. Otherwise, Timor-Leste and International community will become hateful and antipathetic towards them if their collaborative attitude with the court turns into an attitude of supporting and defending each other. If this happens, JSMP is of the opinion that new conflicts will more likely arise in Timor-Leste.
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JSMP PRESS RELEASE - THE FOURTH HEARING OF EVIDENCE IN THE TRIAL OF ROGÉRIO TIAGO LOBATO AND THE OTHER CO-ACCUSED DID NOT AGGRAVATE ACCUSATION AGAINST THE DEFENDANTS 16 January 2007
On 15 January 2007, the Court of Appeal of Timor-Leste held the fourth hearing of evidence in the case of allegedly arming of civilians involving the defendant Rogério Tiago Lobato and his co-accused. All the questions asked by the court actors to the witnesses in the trial were around the crisis which occurred on 24, 28 and 29 April and 23, 24 and 25 May 2006. It was known from the statements made by the two witnesses that their testimony did not aggravate the accusation against the defendant.
The witnesses appearing at the court for the trial are both members of PNTL who knew, saw and heard about the incidents that took place with the involvement of the defendant Rogério Tiago Lobato. Regarding the the three other co-defendants namely Francisco Salsinha Francisco Viegas Xavier and Marcos Piedade, the witnesses said that they did not know any related case involving the abovementioned co-accused.
In his testimony, Afonso de Jesus stated that it was him who led members of PNTL to take control of the demonstrators in from of the Government Palace (Palácio do Governo) of Timor-Leste on 28 April and also 24 and 25 May 2006. He also added that he saw the incident that took place in front of Ministry of Justice on 25 May 2006 where eight members of PNTL were shot dead by members of F-FDTL and more than thirty suffered serious and light firearm injuries including him.
As it has been explained before that all statements given by the witnesses in trial did not aggravate the accusation against the defendants. Nevertheless, pursuant to article 114 item (2) of Criminal Procedure Code, it is incumbent on the Public Prosecutor to verify the indictment in the trial by producing any evidences needed to reveal the truth and making appropriate decision, in particular that relating to the civil responsibility of the defendants.
On the other hand, after the trial, the defendant Marcos Piedade told JSMP showing a letter of request for replacement of his lawyer that he wanted to request to the court for the replacement. In the letter of request as showed to JSMP, it was evident that the defendant had contacted two private lawyers from AATL (Asosiasi Advokat Timor-Leste) to replace his public defender who assisted his legal representation all this time. The defendant Marcos Piedade was unsatisfied with the service and advocacy his lawyer could provide as expected. The defendant complained that he mostly missed contact with his lawyer.
According to JSMP, the initiative of the defendant Marcos Piedade to have his lawyer replaced is a good legal faith, because the right of the defendant to choose a lawyer to represent him or her in every trial process has been guaranteed in article 34 item (2) of the Constitution of the Democratic Republic of Timor-Leste. It is provided in article 60(f) of Criminal Procedure Code that: A defendant has the right to freely communicate with the defender, even where the defendant is under arrest or detention. According to JSMP, the reason why the defendant wanted to have his lawyer replaced was because his right to do so as guaranteed in the Criminal Procedure Code of Timor-Leste was not fulfilled. JSMP considers that such an initiative of the defendant could be realized for the sake of his legal representation.
Although the request for replacement made by the defendant was an appropriate step, JSMP recommended that every lawyer who represents both criminal and civil case must improve the legal service in order to satisfy their clients in accordance with the Advocates Code of Ethics. JSMP is of the opinion that the replacement of the lawyer might result in inefficient service that will cause violations against the rights of the client.
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JSMP PRESS RELEASE - THE COURT ORDERED THE TIMOR-LESTE’S MINISTRY OF JUSTICE AND UNPOL TO PROVIDE PHYSICAL PROTECTION MEASURES FOR THE WITNESSES IN THE CASE OF THE DEFENDANT ROGÉRIO LOBATO AND HIS CO-ACCUSED 12 January 2007
On 11 January 2007, the third hearing of evidence in the case of arming of civilians involving the defendants Rogério Lobato, Francisco Salsinha, Francisco Xavier Viegas and Marcos Piedade, also known as Labadaen, was held at the same place, the Court of Appeal of Timor-Leste.
To prove whether it is true or not the defendants committed or were involved in the criminal act as established in the indictments, the Timor-Leste’s Office of the Prosecutor, through the International Prosecutor Bernardo C. Fernandes, proposed five members of PNTL and RAILOS as the witnesses in the case of arming of Timorese civilians involving the defendant. Of the six abovementioned witnesses, four of them had been heard by the Court. Apart from the six witnesses, the Dili District Court, through the panel of judges examining this case, found it necessary to present six more witnesses whose names were mentioned by the defendant and by the witnesses who had been heard at the court.
This hearing of evidence will be held again on 15 January 2007 to hear the testimony from two more witnesses being members of PNTL. The continued hearing of evidence will be conducted on 22 January 2007 at the same court to hear the testimony from the six witnesses who will be notified by the court.
In relation to the physical protection measure for the witnesses, and whereas a law to apply such measure has not been made, the panel of judges officially ordered the Timor-Leste’s Ministry of Justice and the United Nations Police (UNPOL) to provide security protection for the witnesses and the defendant including their families. Such a physical protection measure is to ensure the smooth process of trial in the case of the defendant Rogério Lobato and his co-accused. The need for this protection arose as some of the witnesses felt that their physical security was threatened.
JSMP welcomed such an order and preventive measure required by the court. While attending the whole proceeding, JSMP observed that physical protection for the witnesses was threatened indeed. In Timor-Leste’s Legislation, till present day, any law regarding physical protection measure for the witnesses both inside and outside the court has yet to be made. According to JSMP, this is a hindrance for the court actors to try cases in the court. As there is no protection provided, the witnesses to testify before the court often feel insecure in giving their testimony at the hearing.
JSMP recommends that the Government and the National Parliament of Timor-Leste observe this issue without delay. JSMP is of the opinion that law regulating the physical protection for the witnesses is very essential in Timor-Leste’s justice system. This is to ease and help court actors process or try both civil case and criminal case. Thus, everyone who is brought before the court as witness in either civil case or criminal case will feel secure and free to give testimony regarding the circumstances to their knowledge.
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JSMP PRESS RELEASE Hearing of Evidence in the Trial of the Defandant Rogerio Lobato and the Other Co-accused 11 January 2007
On 10 January 2007, the Dili District Court, represented by the same Panel of Judges mentioned in our Press Release dated 10 January 2007 continued the hearing of evidence in the case against the defendant Rogerio Lobato and the other co-accused at the Court of Appeal located in Kaikoli-Dili. The hearing that was scheduled for 9am local time began at 9.15am due to the late arrival of Rogerio Lobato and the other co-accused. The witness Railos and defendant Marcos Piedade arrived at the premises of the Court of Appeal prior to 9am.
This hearing was held over two sessions.The first session took place between 9.15am and 12.23pm and the second session began at 14.15pm and finished at 17.53pm.
The hearing of evidence in the case of Rogerio Lobato and the other co-accused saw the court actors concentrating on the testimony of the witness Railos. JSMP observed that Railos was a witness for the prosecution, and this witness gave testimony on the illegal distribution of weapons to civilians in Timor Leste.
The legal representative of Lobato and the other co-accused claimed that the testimony given by the witness Railos before the court was invalid as it contradicted the statement he made in his written declaration that was sent to the President of the Republic. The prosecution responded by stating that the testimony provided by the witness in court is valid and beneficial as it was made pursuant to evidence presented by the witness during the trial. After the examination of the witness was complete the presiding judge announced that the witness may leave the court room. Before the witness departed, the presiding judge reminded him that he would have to return to the court if and when summoned to do so.
JSMP observed that those witnesses who failed to appear on the 9 January 2007, after having been duly notified by the court, did in fact attend court on 10 January. They appeared at the court in accordance with the schedule previously determined by the court. As there was insufficient time to continue the examination, at the close of the day’s session the panel of judges reminded the witnesses present in the court room to return the following day to provide their testimony as the trial continued.
JSMP applauds those witnesses who appeared at the court with the purpose of participating in the trial. JSMP observed that these witnesses always arrived at court in accordance with the schedule set by the court. Although by the close of the day’s proceedings they had yet to be given an opportunity to testify, they were still ready and willing to return to the court when required.
JSMP applauds the actions of the court actors who have concentrated their efforts in this case. JSMP believes that by hearing this case, namely one that relates to the illegal distribution of weapons to civilians, the court can alter the perception of the public who have lost their faith in the judicial system of Timor Leste. The community can regain its faith and confidence in the rule of law and justice in Timor Leste. JSMP is optimistic that this trial represents a positive step forward. JSMP hopes that such positive actions can be maintained and developed to alter the perception, confidence and faith of the community towards the applicable law in our beloved country.
FOR FURTHER INFORAMATION PLEASE CONTACT: Maria deVasconcelos Acting Director, JSMP Telephone: 332 3883 Email: vasconcelosmerry@yahoo.com
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JSMP JUSTICE UPDATE December 16/2006 POSTPONEMENT OF THE TRIAL OF ROGERIO LOBATO
1. Factual Background
1.1. Postponement of the Proceedings
On 30 November 2006 the Dili District Court[1] commenced hearing the case against Rogério Tiago de Fátima Lobato, and his co-accuseds Francisco Salsinha, Francisco Xavier Viegas and Marcos Piedade.[2] The indictment[3] in the case has still not been made public, however information released by the Prosecutor-General’s Office[4] indicates that the indictment includes allegations of homicide, the misappropriation of public property, misuse of public funds and the unauthorised importation or use of firearms to disturb public order.[5]
Presiding over the hearing were Judges Antoninho Goncalves (Timor-Leste), Teresa do Rosario (Brazil) and Ivo Nelson de Caires Rosa Batista (Portugal).
However, due to the absence of Marcos Piedade (commonly known as “Labadai”) at the Court of Appeal building at the time scheduled for the hearing, the hearing was postponed until 9.30am on 9 January 2007. This step was taken in accordance with the Criminal Procedure Code[6] which states that the absence of procedural participants before the hearing has started may result in a postponement of proceedings when and as determined by law.[7] The code expounds that the defendant’s presence at the hearing is compulsory,[8] and where the defendant fails to appear at the hearing, having been duly notified, the hearing shall be postponed before proofs begin to be presented.[9]
1.2. Reason for Absence
There are various conflicting and unconfirmed reports accounting for Labadai’s absence at the proceedings on 30 November 2006. According to information issued by the Office of the Prosecutor-General, [10] Labadai’s absence was the result of a “miscommunication” between the PNTL, and UNPol and international forces operating in Dili.
To protect their personal safety en route to the Court of Appeal, it is claimed that both Labadai and Vicente da Conceição (a key witness in the trial, commonly known as “Rai Los”) presented requests for security to state authorities in the week prior to the scheduled proceedings.[11] In the name of the state, such security was organised and co-ordinated by the Prosecutor-General.[12] It was intended that the Liquiça District PNTL would accompany the two men from Railako and Liquiça respectively to the Prosecutor-General’s office in Dili, where UNPol and international forces would assume official responsibility for their security and transport to the Court of Appeal, while the PNTL would withdraw back to their base.
Therefore, according to the Prosecutor-General, from the time that the Liquiça District PNTL withdrew to their base, responsibility for the safe delivery of Labadai and Rai Los to the Court of Appeal was handed over to international security. In letters of notification written by Labadai and Rai Los,[13] it is charged that they waited for a car and security to take them from the Office of the Prosecutor-General to the Court, but such security did not come.
However, contrary to the information provided by the Office of the Prosecutor- General, UNPol claims that it was never notified to provide any such protection and that the only security plan it was involved in was to provide security around the Court of Appeal building, which it duly did.[14]
In the light of these conflicting reports it remains uncertain what security-related measures were taken in order to assist Labadai’s and Rai Los’ attendance at the hearing. It is also unclear what the source was of the miscommunication or other problem which led to the failure of the security plans. The only certain fact is that after being escorted to Dili by the PNTL, Labadai and Rai Los were reluctant to travel from the Office of the Prosecutor-General to the Court of Appeal without a security escort and as such, failed to attend.
2. Legal issues relating to the attendance of defendants at trial
The Criminal Procedure Code outlines the rights and duties of defendants in criminal proceedings. It also sets out which institutions have responsibility for addressing various issues during the course of a criminal proceeding. Relevant provisions include those providing for restrictive and property-guarantee measures to be imposed on defendants, and those which explain the procedures to be applied in the event of a defendant’s absence at trial.
2.1. Restrictive Measures
Restrictive and property-guarantee measures may be imposed on a defendant as provided by law.[15] The ostensible purpose of such measures is to ensure the defendant’s attendance at trial and prevent the defendant from interfering with evidence or otherwise hampering the trial process.[16] A mandatory minimum restrictive measure, the obligation to provide proof of identity and residence, is imposed by the Code of Criminal Procedure on all defendants in criminal proceedings,[17] however if necessary a court may impose other restrictive measures such as bail, house arrest or pre-trial detention.[18] It is assumed that following his identification as a defendant in the concerned proceedings, Labadai was required to provide proof of identity and residence.[19]
Article 186(2)[20] of the Criminal Procedure Code governs the operation of this minimum restrictive measure. Importantly, it requires that a defendant be warned of the consequences of a failure to fulfil his or her obligations as a defendant under the Criminal Procedure Code. This warning is usually provided during the initial questioning of a suspect, which JSMP was not permitted to attend in this case. However no suggestion has been made by any party that Labadai was not warned of his obligations as a defendant in accordance with the Criminal Procedure Code
2.2. Defendants’ Obligations
The obligations of defendants to criminal proceedings are outlined in article 61 of the Criminal Procedure Code. Most relevant in the present case is article 61(b) which imposes an obligation on all defendants to appear before the competent authorities when summoned regularly. JSMP has previously discussed the ambiguities involved in this sub-article: chiefly that no definition is given of the ‘competent authorities’, or detail provided as to what is required for a regular summons.[21] However JSMP considers that as long as Labadai was properly informed of the trial date and his obligation to attend, his failure to appear at the trial on 30 November 2006 constituted a breach of this obligation.
The consequences flowing from a breach of a defendant’s obligations are not expressly stated in the Criminal Procedure Code. There is potential scope for the operation of Article 90 (regarding action to be taken pursuant to absences from procedural acts) although the application of article 256 is more relevant in the circumstances (see 2.3 below).
2.3. Implications of a defendant’s absence under the Criminal Procedure Code
Article 256 of the Criminal Procedure Code, as mentioned above, provides that where the defendant fails to appear at the hearing, having been duly notified, the hearing shall be postponed. In such circumstances, article 256(2) allows the defendant five days in which to justify his or her absence, with a failure to do so resulting in the imposition of a fine and the issuance of an arrest warrant in order to ensure the defendant’s presence at the hearing on the reset date.[22] Where the defendant justifies his or her absence, he or she is to be given notice of the reset date, but in the event that the defendant fails to appear on the reset date the trial shall be held in absentia.[23]
Within the permissible five-day period following the initial proceedings, Labadai issued a statement to the Prosecutor-General and the media outlining the reasons for his absence (outlined above). Unfortunately the Criminal Procedure Code does not state what reasons given by an absent defendant may be taken as sufficient to “justify” such an absence at trial. Presumably the Code does not intend that any reason given would necessarily be sufficient. However it appears that Labadai’s fear for his personal security has been considered sufficient to “justify” his absence from the proceedings on 30 November 2006. As such, article 256(2) will not apply and no further restrictive measures should be imposed on the defendant pending the proceedings on the reset date of 9 January 2007. It is important to note that the other defendants involved in the proceedings will continue to be subject to the restrictive measures imposed on them prior to the 30 November proceedings.
The obligation now lies with the defendant to ensure his attendance at the postponed proceedings. Should Labadai fail to attend the newly scheduled trial, it may be held in his absence – most likely to his detriment – with the only representation provided, for all possible purposes, by his appointed defender.[24]
2.4. Need for amendment of the Criminal Procedure Code
As explained above, the Criminal Procedure Code places responsibility on the defendant in a criminal proceeding to appear at court for a trial when properly summonsed.
However, where a defendant has special needs which must be addressed in order to assure his or her attendance at trial, it remains unclear which public institution has responsibility for assisting. Such special needs, as in the present case, may be security related (this is likely to be increasingly common in the context of the present unrest) or it may be a more standard matter such as the need for transportation. At the present time, the Criminal Procedure Code does not deal with the question of which institution has responsibility for addressing such needs. JSMP believes that this issue must be addressed.
This is an issue which also has implications for other participants in the trial process, such as witnesses and victims. In a significant number of the cases which JSMP has monitored during 2006, trial hearings have been postponed due to the absence of a defendant, victim or witness. JSMP therefore believes that changes to the law and to practice are necessary so that it is clear who has legal responsibility for ensuring the attendance of trial participants, and to establish practical systems to make sure attendance occurs in practice.
3. the Protection of trial participants
3.1. Need for further security measures
JSMP recognises and commends the strong security presence at the Court of Appeal on 30 November 2006.[25] JSMP believes, however, that there is a need to provide broader measures of protection to those involved in court proceedings.
At present, valuable witness protection laws are being developed by the UN Human Rights Unit. Given the current security situation in which the population is divided along varied political and social lines and the security of all participants in proceedings is uncertain, JSMP recommends that protection must be made capable of extending under the new law not only to witnesses and victims but also to defendants who are not in pre-trial detention and have a reasonable fear for their safety. As highlighted by the postponement of the Lobato case, this is necessary to ensure that hearings proceed in an expeditious manner.
3.2. Need for Timely Proceedings
In the light of the current political and social climate and the high public profile of the Lobato trial JSMP believes it is imperative that this case in particular should be conducted in a timely and transparent manner. Timorese society continues to suffer as a result of the absence of accountability for, and the lack of publicly-available, accurate information regarding those actions which triggered the political crisis in April and May 2006. It is therefore essential that all efforts – particularly those relating to the security of those involved in the proceedings – be proficiently coordinated to ensure the timely realisation of the trial.
Defendants also have a considerable interest in the prompt determination of proceedings. Delays incur further legal costs and the inconvenience of remaining subject to the restrictive measures imposed under the Criminal Procedure Code (outlined in section 4.1).[26] Further, and perhaps of greater concern, is the continuing unresolved criminal responsibility of the defendants and the implications of this on the personal and professional lives of those concerned. Undetermined culpability invariably exposes the reputations and standing of those involved to continuing suspicion and criticism – not only in the workplace, but also in family and community circles.
4. Recommendations and conclusions
As such, JSMP calls for continuing cooperation between Timorese and international stakeholders with the capacity to assist in facilitating the implementation of additional security measures. Steps must be taken to ensure that such easily preventable “miscommunications” as impeded Labadai’s and Rai Los’ presence at the hearing on 30 November do not reoccur.
At present, it is ultimately the responsibility of the defendant under the Criminal Procedure Code to ensure his or her attendance at proceedings. JSMP believes that systems should be in place to ensure that security is provided if and when requested – particularly where a reasonable fear for personal security exists. JSMP further believes that amendments to the law – either through the new witness protection legislation that is to be created or through amendments to the Criminal Procedure Code itself – should be made to address the question of institutional responsibility for the general protection of all trial participants and for their attendance at trial.
Specifically, JSMP recommends that responsibility for coordinating the security of court actors both prior to, en route to and from, and during proceedings, be made the responsibility of one party alone. Such allocation of responsibility would simplify the organisation and implementation of security measures and delineate accountability for their operation. At present, the administrative branch at the Dili District Court is perhaps best placed to assume this role in a managerial capacity, [27] assisted on the operational level by the UNPol. Ideally, such responsibility would ultimately be transferred to a specialised faction of PNTL operating from the courts once their internal screening process has been completed.[28]
With these issues in mind, JSMP recommends that the Council of Coordination for the Justice Sector undertake or commission an investigation into the events on 30 November 2006 – not to clarify accountability or to place blame on any party, but rather to identify the weaknesses in the system in order that they might be rectified to prevent further such situations.
The Timorese justice system continues to experience adverse delays in proceedings for a variety of reasons from lack of evidence to the absence of trial participants.[29] Such setbacks continue to erode the people of Timor-Leste’s confidence in the functions and merit of the judiciary. Action must be taken to ensure that such easily-avoided obstacles do not unjustifiably obstruct proper and expeditious proceedings. Without effective judicial systems, there is little respect for the rule of law and little perception of accountability and justice – vital factors to returning peace and stability to Timor Leste.
[1] Although the Dili District Court is hearing the case, the hearing itself was moved to the Court of Appeal building. The reason given for this move was to increase security.
[2] Represented by Pedro Andrade, Paulo dos Remedios and Nelson de Carvalho. The prosecutors working on the case are Felismino Cardoso and Bernardo Ferrandes.
[3] Indictment issued on 20 September 2006.
[4] Notice issued on 21 September 2006.
[5] For information on the facts and proceedings leading up to the trial (including information on Lobato’s arrest, first judicial questioning, and the issue of the indictment) please refer to Progress to Date in the Cases of Rogerio Lobato and Mari Alkitiri, JSMP Report, September 2006 (available on the JSMP website: www.jsmp.minihub.org).
[6] Decree-Law No.13/2005 Approving the Criminal Procedure Code.
[7] Article 251(2) Criminal Procedure Code.
[8] Article 253(1) Criminal Procedure Code.
[9] Article 256(1) Criminal Procedure Code.
[10] A written statement was issued to the President, Prime Minister and Parliament on Tuesday 5 December and a copy distributed to JSMP.
[11] JSMP has in fact been provided with a copy (by the Prosecutor-General) of a letter written by Rai Los dated 23 November 2006 addressed to the Prosecutor-General (and copied to the President of the Republic and the Prime Minister) requesting that Australian Police be provided to accompany him from his home in Liquiça to Dili and back.
[12] Statement issued by the Prosecutor-General on 5 December 2006.
[13] Issued to the Prosecutor-General on 5 December 2006.
[14] Email received by JSMP from UNPol Spokeswoman.
[15] See generally the Criminal Procedure Code Title VI, Chapter I regarding Restrictive and Property-Guarantee Measures.
[16] This can be deduced from article 183 of the Criminal Procedure Code which provides the general requirements for the imposition of restrictive measures, being that there are reasonable grounds for suspecting that the defendant may flee, disrupt the trial, pursue criminal activity, or cause disturbances to public order.
[17] As required by Articles 61(d), 184(1) and 186(1) of the Criminal Procedure Code.
[18] See Criminal Procedure Code Title VI, Chapter II, Section I.
[19] Note that more substantial restrictions were placed on Rogerio Lobato – for more information refer to Progress to Date in the Cases of Rogerio Lobato and Mari Alkitiri, JSMP Report, September 2006, p6.
[20] Article 186(2) of the Criminal Procedure Code provides:
“Provision of proof of identity and residence by a defendant means:
(a) truthfully providing his or her full identification, home and office address, and the address at which notices can be served to him or her in the course of the proceeding;
(b) being warned that he or she must appear before the competent authority or to remain at the disposal of the latter as required by law or when notified for that purpose;
(c) being warned that he or she must report any change of residence or of the address at which he or she may be contacted, where the defendant changes residence or is absent from it for more than fifteen days;
(d) being warned that failure to comply with the paragraphs (b) and (c) legitimises the defender to represent him or her in any procedural acts he or she had the right to attend or was required to do so, and also legitimises public notification of the date set for the trial hearing foreseen in Article 257 and the holding of the hearing in his or her absence even if the defendant has justified any absence prior to the hearing.
[21] Progress to Date in the Cases of Rogerio Lobato and Mari Alkatiri, JSMP Report, September 2006, p17.
[22] Article 256(2) Criminal Procedure Code.
[23] Article 256(3) Criminal Procedure Code.
[24] Article 256(3) Criminal Procedure Code.
[25] Security measures taken comprised both civil security officers and international troops manning road blocks and metal detectors at the gates to the Court of Appeal, various patrols and posts around the courthouse, and security inside the court to facilitate the orderly admission of people into, and their behaviour inside the courtroom.
[26] Labadai is subject only to minimum restrictive measures which do not appear to pose any particular inconvenience. Lobato on the other hand, must now remain under house arrest until 9 January 2007 which is a considerably greater restriction on freedom of personal movement and autonomy.
[27] Article 8, Criminal Procedure Code relates to relevant Cooperation between Authorities:
1. Every public authority is obliged to cooperate with the courts in the administration of criminal justice, as and when requested.
[28] Article 52(2) concerns relevant General Police Powers:
2. It is also incumbent upon the police to assist, upon request, judicial authorities in achieving the goal of the proceeding, particularly the Public Prosecution Service during the inquiry.
[29] The substantial build up in the courts is illustrated by information published on the website of the Ministry of Justice, available at http://www.mj.gov.tl/stats/. At the end of October 2005 in the Dili District Court alone, there were 748 cases pending trial and 346 cases upon which a decision had not yet been made.
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Progress to Date in the Cases of Rogerio Lobato and Mari Alkatiri JSMP Report Dili, Timor-Leste September 2006
1. INTRODUCTION
In recent months much attention has focused on the arrest of former Interior Minister Rogerio Tiago Lobato and the investigations underway by the Timorese Public Prosecution Service into the possible criminal liability of both Lobato and former Prime Minister Mari Alkatiri.
However limited information has been available to the public about these cases and there has been significant misinformation published in both the local and international media. In this report, JSMP hopes to clarify the processes that are underway in these cases and to provide some legal commentary on the conduct of the proceedings to date by the Office of the Prosecutor-General and the Dili District Court.
2. FACTUAL BACKGROUND
In early June of this year, allegations were made through the international media that senior political figures in the Timorese government had provided guns to a civilian militia group with instructions to carry out the murder of their political opponents. These allegations were made by Vicente “Railos” da Conceição, a former of Falintil member and a participant in the 2006 Fretilin national congress. Railos stated that he and a group of men under his de facto command had been armed on the instructions of the then Interior Minister, Rogerio Lobato, in collaboration with the then Prime Minister, Mari Alkatiri. He claimed that the objective of the arrangement was to kill opponents of the Government and members of opposing factions within the Fretilin party.
Soon thereafter the Office of the Prosecutor-General indicated that an investigation was being initiated into crimes allegedly committed by Lobato. Subsequently an investigation was also commenced by prosecutors into the alleged involvement of Alkatiri.
3. PROCEEDINGS IN THE LOBATO CASE
3.1. The arrest and first judicial questioning
On 22 June 2006, following the statement of Railos, the Public Prosecution Service sought and received a judicial warrant for the arrest of Rogerio Lobato.1 On the same day Lobato was arrested by two prosecutors and taken to the Dili District Court for judicial questioning.2
3.1.1. The conduct of the questioning
During the first questioning Lobato was represented by an international public defender and the Office of the Prosecutor-General was represented by two international prosecutors. The questioning was conducted by Judge Silvestre. All court actors involved at this stage of the case were internationals.
The first judicial questioning in this case was closed to the public. JSMP sought to negotiate access to the questioning but was told by the judge and prosecutors handling the case that the questioning would be closed to the public because the suspect himself had requested this. This closed nature of the questioning was in line with what has become standard practice in the Timor-Leste criminal justice system. It reflects a common interpretation of article 75(1) of the Criminal Procedure Code which states that “a criminal proceeding is open to the public from the time the indictment is presented” and which therefore implies that up until the presentation of an indictment proceedings may be closed to the public. While article 131 of the Timor-Leste Constitution requires that all court hearings must be public unless a judicial ruling to the contrary is made on one of certain specified grounds, the meaning of “hearing” is not clear in this context and seems unlikely to be applicable to questionings during the pre-trial or investigatory phase of proceedings. The drawing of a distinction between pre-trial court sessions and hearings at trial in determining whether to allow public access is consistent with international human rights law, which requires that trial hearings in which a criminal charge is determined must be open to the public but which imposes no such requirement in respect of pre-trial sessions.3
During the judicial questioning, Lobato’s status as a defendant was declared as required under the Criminal Procedure Code.4 This defendant status lasts for the duration of the entire proceeding5 and has the consequence that certain rights are granted to, and some duties imposed upon, the person in question.6
3.1.2. The imposition of restrictive measures
During the initial questioning a judicial ruling was made that Lobato be placed under house arrest.
The Criminal Procedure Code permits the imposition of restrictive measures on defendants where there is a reasonable fear that the defendant might escape, or that the investigation or trial might be disrupted through interference with evidence, or that further crimes or disruptions to public order might occur.7 One form of restrictive measure which may be imposed is a “prohibition against quitting residence” (commonly referred to as “house arrest”). This may be imposed “where there are strong indications that a criminal offence punishable by imprisonment exceeding three years has been committed”.8
The Criminal Procedure Code provides that a prohibition on quitting residence may last up to two years without the presentation of an indictment or four years without a conviction at first instance.9 However restrictive measures, including “house arrests”, are ended immediately in certain circumstances, including if a case is dismissed for lack of indictment.10 This may happen after the completion of the inquiry, for example if insufficient evidence has been gathered.11
JSMP believes that Lobato is the first defendant to be subjected to a house arrest under the new Criminal Procedure Code. Although JSMP did not attend the hearing at which this order was imposed, subsequent enquiries revealed that the reason for the house arrest was a belief that the defendant’s safety could not be guaranteed in Becora Prison. This may be in part because the Becora prison does not have single cells, and because of Lobato’s former position as the Minister responsible for the PNTL, who were responsible for the arrest of most inmates at Becora Prison.
JSMP considers that the order for “house arrest” in Lobato’s case was for the most part a positive development. It has only two reservations:
• First, there is a danger of a public perception that Lobato has avoided pre-trial detention in Becora as a result of special treatment based on his political standing and influence. While JSMP considers that such a perception would be unfounded, it may be that the Office of the Prosecutor-General needs to improve the provision of information to the public to address this danger.
• Secondly, it is concerning that the approach of the prosecution and the Court appears12 to have been one of assuming that where restrictive measures were required, pre-trial detention should always be imposed unless there was a reason not to do so. That approach is in direct contradiction to the scheme established by the Criminal Procedure Code, which requires that pre-trial detention should only ever be imposed where it is possible to positively establish the “inadequacy or insufficiently of any other restrictive measure provided by the law.”13 This scheme conforms to international human rights law, according to which pre-trial detention must be treated as an exception rather than the rule.14
However, with these small qualifications aside, JSMP welcomes the attention given in this case by both the Office of the Prosecutor-General and the District Court to restrictive measures less intrusive than pre-trial detention, and hopes that such measures will in future be used more widely.15
3.2. Further judicial involvement
3.2.1. Subsequent sessions before the Dili District Court
JSMP has been informed that a second session before Judge Silvestre of the Dili District Court was held on 29 June.16 The session was apparently held at the instigation of the Court in response to concerns about the defendant’s safety in his home. However ultimately there was no change to the order for restrictive measures.
During the second court session Lobato requested a further appearance before a judge. A third court session was therefore held on Saturday 1 July at the Dili District Court. JSMP understands that this was because, having received advice from his privately retained foreign lawyers,17 Lobato wished to have a further session with the judge for two purposes:
12 JSMP wishes to emphasize that since it was not granted access to the court sessions in this case, its information about the position advocated by the prosecution and the reasoning used by the Judge was passed on in general terms by court actors after the sessions.
13 Article 194(1)(b) Criminal Procedure Code.
14 Article 9(3) International Covenant on Civil and Political Rights.
15 JSMP recognizes that some restrictive measures, such as prohibitions on quitting residence, may be difficult to enforce from a practical viewpoint in Timor, however to the extent that it is feasible to utilize these measures this should be attempted.
16 JSMP was not made aware of this session in advance and for this reason did not attempt to gain access to it.
17 The right of a defendant to be represented by a lawyer is guaranteed by article 60(d) of the Criminal Procedure Code. Section 34(2) of the Timor-Leste Constitution gives defendants the right to select and be assisted by a lawyer at all stages of a criminal proceeding. Lobato is represented by three private lawyers: two from Macau and one from Portugal. Timor-Leste
(1) to request that the prohibition on quitting his residence be lifted; and
(2) to provide a further statement or a clarification of his earlier statement regarding the substance of the case against him.
This third court session was also closed to the public.18 JSMP made enquiries following the hearing and was told that there was no change to the order for Lobato’s house arrest.
3.2.2. Lawfulness of the subsequent sessions
JSMP is concerned about the compliance of this process with the new Criminal Procedure Code. It is necessary to consider the extent to which the Criminal Procedure Code permits judicial involvement in the questioning of defendants during the pre-trial period. JSMP is specifically concerned that in Lobato’s case, an additional session before a judge was held in part for the purpose of allowing Lobato to provide a statement as to the substance of the case against him.
JSMP was informed by the Prosecutor’s Office that the purported legislative basis for this is articles 60(c) and 61(b) of the Criminal Procedure Code. JSMP does not agree that these provisions permit the holding of multiple judicial questioning sessions during the investigation phase of a criminal proceeding.
Article 60 is concerned with the rights of the defendant. Article 60(c) reads as follows:
“In addition to other rights enshrined in the law, the defendant enjoys the following rights:
…
(c) to freely decide to make or not to make statements and to do it, even at his or her own request, at any stage of the investigation or of the trial hearing, except as provided in paragraph 61(a);
…”
This is designed to ensure that statements made by a defendant are made on the basis of the defendant’s free will. The most important aspect of this is to guarantee the defendant’s right to silence – that is, his or her right to refuse to provide information. This is a fundamental right of the defendant that is guaranteed under international law.19 However article 60(c) does appear to go beyond simply guaranteeing the right of the defendant to refuse to make a statement, and also provides that a defendant may “freely decide to make… statements and to do it, even at his or her own request, at any stage of the investigation…”. In JSMP’s view, this provision means that during the investigation the defendant may never be prevented from making a statement. However article 60(c) does not state which authority is competent to receive such a statement. It does certainly does not indicate that a statement made by a defendant during the investigation should be heard by a judge.
does not yet have a law regulating the formal requirements for private legal practice, including any requirements for cross-jurisdictional recognition.
18 JSMP attempted to gain access to the session but this was refused.
19 Article 14(3)(g) International Covenant on Civil and Political Rights.
Article 61, regarding the duties of the defendant, includes article 61(b) as follows:
“In addition to those duties provided in the law, the defendant is subject to the following duties:
…
(b) to appear before the competent authorities, when summoned regularly;
…”
In JSMP’s view, the effect of this provision is only to require that when an authority, acting within its competency and following correct procedures as set out in the Criminal Procedure Code, requires a defendant to appear before it, the defendant must do so. JSMP cannot see any part of this provision which permits a defendant to request the holding of an additional pre-trial judicial questioning session. Nor does the provision set out the circumstances in which authorities (including judges or prosecutors) may summon a defendant to appear before them. Rather it only states that when they do so in accordance with the proper procedures set out elsewhere in the Code, the defendant is obliged to comply.20
JSMP believes that the more relevant provisions of the Criminal Procedure Code are articles 63 and 64 and articles 226 to 228.
Where a defendant is arrested, article 63 requires that the arresting authority must present that person for first judicial questioning as soon as possible, but not more than seventy-two hours from the time of arrest.21 The judge has exclusive competence to conduct the first questioning after the defendant’s arrest, the purpose of the questioning being, among other thing, to consider the lawfulness of the arrest in an adversarial fashion.22 The questioning is to be attended by the judge, the public prosecutor, the defender, an interpreter, an official tasked with taking a written record of statements made, and if necessary a security official.23
Article 64(1) states:
“Any further questioning is undertaken by the entity with competence to conduct the procedural phase in which it occurs, or by a person with delegated competence to undertake it.”
The plain meaning of this, particularly in the context of article 63 which it follows, is that any questioning of the defendant after the initial judicial questioning is to be undertaken by the entity that is responsible under the Criminal Procedure Code for conducting the phase in which that questioning occurs. It is therefore necessary to inquire as to which entity has the competence to conduct the investigation phase of a proceeding. The Criminal Procedure Code divides a proceeding into four main phases: investigation, trial, appeal and execution. The investigation (or inquiry) phase extends from the report of a crime up until the issue of an indictment and referral to trial. The phase is stated to be for the purpose of collecting evidence and taking any other action that is necessary in order to demonstrate that a crime has been committed, to hold its perpetrators liable, and to assess compensation.24 Three provisions of the Criminal Procedure Code set out the respective responsibilities of the judiciary, prosecution and police in respect of this phase:
• Article 226 enumerates a list of specific acts which are under the exclusive jurisdiction of the relevant judge and which are to be performed by that judge at the request of the public prosecutor.25 This list includes conducting the first questioning of an arrested defendant; conducting the committal of statements to writing for future use; ordering the search of certain items, institutions or person; authorizing phone taps and the seizure of mail and records; and carrying out any other functions as may be assigned by the law. While it may seem that the power “to conduct the committal of statements to writing for future use”26 may be relevant to the present question, JSMP considers that this power refers only to the committal of statements that are taken under article 230, which is titled “statements for future use”. This article does not cover statements made by the defendant, but rather only those statements made by a witness who may not be available at trial. The policy justification for establishing an adversarial procedure overseen by a judge for the taking of such statements is clear – namely the protection of the defendant against the potentially adverse consequences of using a witness statement at trial when the witness is not available for cross-examination. This policy justification would not apply so as to necessitate the presence of a judge during the taking of other types of statements during the investigation phase.
• Article 227 provides that the public prosecutor assumes a leadership role in the inquiry in respect of any acts not carried out by it directly, and states that the prosecution may perform or authorize any acts reserved to it by the law.
• Article 228(1) states that any other procedural acts to be done in the course of the inquiry are to be carried out by the police.
JSMP believes that the scheme established by these provisions intends that aside from functions specifically granted to the judiciary, all other acts during the investigation or inquiry phase of a proceeding are to be carried out under the competence of the prosecution or police.
JSMP notes that Article 226(1) does not specifically mention the reviewing of non-custodial pre-trial restrictive measures as a function for judges, however JSMP believes that this is a function otherwise assigned by the law and therefore falls within article 226 (1)(f).27 This is because:
• Article 184(2) of the Criminal Procedure Code provides that during the course of the investigation restrictive measures28 (other than those relating to the provision of identity and residence information) may only be imposed by a judge. If only a judge is able to impose such measures, it should follow that only a judge has the power to modify them.
• Where pre-trial detention (one type of restrictive measure) has been ordered, such detention may be reviewed, over-ridden, suspended or substituted for another measure, and these steps are required to be undertaken by a judge.29
• In respect of restrictive measures amounting to a form of arrest or detention, a right exists under the Timor-Leste Constitution and under international human rights law to access a court to challenge the lawfulness of those measures.30 This right is therefore a part of Timorese law,31 although it is not expressly included in the Criminal Procedure Code.
However, while JSMP believes that it is important for defendants to have access to judges for the purposes of reviewing the lawfulness of restrictive measures imposed on them (and that they are entitled to be represented for this purpose by a lawyer of their choice32), this entitlement does not extend to being able to call a judicial audience at any time during the investigation phase of proceedings for any purpose. JSMP is concerned that there appears to be a level of confusion regarding the respective roles of the judiciary and prosecution during the pre-trial phase of proceedings.
JSMP is concerned that prosecutors and judges apparently remain unfamiliar with the procedures contained in the new Criminal Procedure Code. This is to some extent caused by ambiguities in the Code itself which are the result of poor drafting and inadequate consultation prior to the Code’s enactment. More efforts need to be made to familiarize court actors with the Code.
3.3. The defendant’s application for the dismissal of the case
Following the earlier proceedings, an application was made by Lobato’s lawyers to the Dili District Court to have all acts carried out in the course of the investigation nullified. This was on the basis that the Prosecutor-General had not been duly appointed in accordance with the law and that therefore all acts carried out by the Office of the General-Prosecutor were without legal effect.
Under the Timor-Leste Constitution the Office of the Prosecutor-General is the highest authority in the public prosecution, the composition and competencies of which are to be defined by law.33 The Office is headed by the Prosecutor-General,34 who is appointed by the President of Timor-Leste for a term of office of four years.35 The Constitution provides that in the absence of the Prosecutor-General or where he or she is unable to act, he or she must be replaced according to law.36 The Constitution therefore does not anticipate a situation in which there is not a Prosecutor-General validly holding office. The Prosecutor-General, Longuinhos Monteiro, was formally sworn in on 17 July 2006, some time after the expiry of his previous term of office, and therefore was not properly appointed during approximately one month of the investigation in the Lobato case.
However JSMP has been informed that the application by Lobato’s lawyers was dismissed on the basis that the status of the Prosecutor-General was not relevant, since all acts carried out in the Lobato case had been done not by Monteiro, but by international prosecutors working in the Office of the Prosecutor-General.
JSMP believes that this was the correct outcome in the light of the law regulating the Public Prosecution Service,37 which establishes the structure and powers of the institution. It provides that the Prosecution Service is a hierarchically organized magistracy under the Prosecutor-General.38 The competencies of the Prosecution Service as a whole are set out, including the leading of criminal investigations,39 and persons who may act as agents of the Prosecution Service are listed, including public prosecutors40. It is significant that the organisation’s powers are vested in the Prosecution Service as a whole, not specifically in the Prosecutor-General. This is in contrast to the previous regime for the Prosecution Service, under UNTAET Regulation 2000/16 (and as subsequently amended by UNTAET Regulation 2001/26), which vested prosecutorial powers exclusively in the Prosecutor-General, who was also given the ability to delegate those powers to public prosecutors under his authority41. In JSMP’s view the effect of the new regime is that even where the Prosecutor-General is not duly appointed, other prosecutors nonetheless retain the power to exercise the functions of the Prosecution Service.
3.4. The indictment in the Lobato case
3.4.1. The issue of an indictment
On 21 September the Office of the Prosecutor-General announced that it had completed its investigation in the Lobato case and that on the previous day (20 September) it had presented an indictment to the Dili District Court.
This step was taken in accordance with the Criminal Procedure Code, which requires that if, at the conclusion of an inquiry, the Prosecutor-General considers that there is sufficient evidence, a writ of indictment must be issued within fifteen days.42
Information issued by the Prosecutor-General’s Office indicates that the indictment includes charges of the following crimes: misappropriation of public property, murder, and the unauthorised importation or use of firearms to disrupt public order.43
3.4.2. Public access to the indictment
JSMP has made enquiries with the Office of the Prosecutor-General to establish whether any other crimes are charged in the indictment. JSMP was informed that this information was not public and could not be disclosed by the Office of the Prosecutor-General.44
JSMP also made a written request to the Dili District Court for a copy of the indictment but at the date of this report’s completion had still not been supplied with a copy of the indictment. The reason given by the Court was that the decision to provide the indictment to JSMP had to be taken by the responsible judge, who holds the documents, and that she was outside of Dili to hear a case in her capacity as Baucau District Court.
JSMP notes that according to the Criminal Procedure Code, a criminal proceeding is open to the public from the time the indictment is presented.45 This is explained as entitling the media and general public to attend the proceedings.46
However the Criminal Procedure Code does not provide that the indictment on which a prosecution is based must also be publicly available. It states that access to records of a proceeding may only be freely accessed by the public prosecutors, suspects, defendants, and aggrieved person.47 Other persons seeking access to records must produce proof of a legitimate interest in the proceeding and receive prior authorisation from the judicial authority in charge of the relevant phase of the proceedings.48 However the Code does not define “records” for this purpose and it is not clear whether the indictment forms a part of these records.
For this reason, JSMP is concerned that at the present time the law is insufficiently clear on the subject of public access to indictments. JSMP believes that indictments should be publicly accessible. Allowing the public to attend sessions but without access to the indictment on which a court proceeding is based is insufficient to allow public understanding and therefore scrutiny of criminal cases. For this reason JSMP believes that public access to indictments should be ensured under the law.
4. PROCEEDINGS IN THE ALKATIRI CASE
4.1. Questioning of the defendant and related issues
Following Alkatiri’s resignation from his position as Prime Minister on 26 June 2006, prosecutors required him to appear for questioning on 30 June. However before the questioning session Alkatiri wrote to prosecutors requesting that the questioning be postponed since he was still awaiting the arrival of his lawyers from overseas. A new request was made on 7 July for Alkatiri to attend questioning on 20 July.
On 20 July Alkatiri attended a questioning carried out by an international public prosecutor. His lawyers were also in attendance.49 The questioning was closed to the public.50
4.1.1. Status of defendant
Under the Criminal Procedure Code wherever there is circumstantial evidence that a person has committed, has taken part in, or is preparing to take part in a criminal offence, that person is a “suspect”.51
However a suspect does not acquire the status of “defendant” until one of several possible further steps occurs. Article 59 provides that the status of defendant must be granted to a person when:
(a) an indictment is presented in respect of that person;52
(b) an investigation is underway against that person and he or she makes a statement before a judicial or police entity;53
(c) a restrictive or property-guarantee measure has to be imposed on that person;54
(d) that person is arrested;55 or when
(e) a report is prepared stating that that person has committed a crime and he or she is notified of the report.56
In the present case, since an investigation was underway against Alkatiri, and he provided a statement to a public prosecutor, he was required to be declared a defendant.
The status of defendant is significant because it entails certain rights and duties,57 as well as enabling certain procedural steps under the Criminal Procedure Code.58 For example, the rights of a person declared a defendant include, inter alia, the rights to be informed of acts alleged against him or her and of his or her rights when being asked to make a statement,59 to be assisted by a lawyer if he or she so requires,60 and to have a public defender appointed by the court for representation in certain processes.61 A defendant’s duties include, among other things, to appear before competent authorities when summoned,62 to subject him or herself to lawful searches for evidence,63 and to provide proof of identity and residence.64
A person who acquires the status of defendant must be given notice of this fact (orally or in writing) by a judicial or police entity, and must be provided with an explanation of the rights and duties entailed in this status, as well as information regarding the case file and any public defender that has been appointed.65 If such notice and information is not provided statements made by the defendant may not subsequently be used against him or her.66
JSMP notes an apparently anomaly in the Criminal Procedure Code in respect of this issue. The law states that a suspect who is being investigated but who is not arrested does not acquire the status of defendant until “the latter makes a statement before any judicial authority or police entity.”67 This appears to suggest that the status of defendant is not conferred until a person has finished or at least started giving a statement to judicial or police authorities. However this would mean that the person does not obtain the right to legal representation68 or to be informed of the allegations made against him or her until after a statement has been given. JSMP considers that this result would be in contradiction to the clear purpose of the legislation, which seeks to implement human rights standards and to ensure that statements made by accused persons can only be used against them if such statements were made following a reading of the accused’s rights and in the presence of a lawyer (if so requested). For these reasons JSMP believes that the Criminal Procedure Code should be interpreted as requiring that the status of defendant be conferred immediately before any statement is taken from a person under investigation, and that notice of that status and accompanying rights and duties should be given before any statement is taken.
JSMP was informed by the public prosecutor who conducted the questioning of Alkatiri that the latter was duly informed of his status as a defendant.69 However since JSMP was not able to monitor the questioning it cannot confirm whether or not such notice complied with the requirements of the Criminal Procedure Code or at what point in the questioning it was given.
4.1.2. Summonsing of defendant for questioning
JSMP notes that the calling of Alkatiri to a prosecutorial questioning was in accordance with the requirements of the Criminal Procedure Code. Article 231 states that when an inquiry against a particular person gets underway, it is compulsory for that person to be questioned.70
JSMP notes however that the power of prosecutors to compel a suspect or defendant to attend at the Office of the Prosecutor-General for questioning is unclear. As mentioned above, the Criminal Procedure Code imposes a dutyon defendants to appear before the competent authorities when summoned regularly.71 However as explained above, a suspect who is under investigation but has not yet been arrested does not have the status of defendant until that person attends to provide a statement to prosecutors or police.72 It therefore appears that where no arrest has been made police are not able to compel a suspect to attend for questioning. For this reason, although Alkatiri cooperated with prosecutors in attending for questioning, JSMP believes that he was not required by law to do so. For this reason, to the extent that some media reports insinuated that Alkatiri’s failure to attend questioning on 30 June 2006 was unlawful, such reports were misleading.
JSMP believes that the law requires some clarifications in this area:
1. At the present time it remains unclear what steps should be taken by prosecutors if a suspect who has not attained the status of defendant (and therefore cannot be compelled to respond to a summons) refuses to appear for questioning. Article 231 of the Criminal Procedure Code requires that a suspect under investigation must be questioned. It is unclear whether the mere making of a request for the suspect to attend questioning is sufficient to meet the requirements of article 231, or whether the prosecution must undertake other steps to ensure that an actual questioning occurs. If the latter position is correct, it would seem that it is necessary for prosecutors to obtain a judicial warrant for the arrest of a suspect in order to undertake his or her questioning if the suspect will not voluntarily undertake such questioning.
2. JSMP is concerned that the obligation on defendants to appear before authorities when summoned is not sufficiently clear under the Criminal Procedure Code. This is because the law does not define who are the “competent authorities” which may issue summonses, nor what is required for a summons to be “regular”. Neither does the law explain clearly what the result is if a defendant fails to comply with the obligation.73
4.2. Issues relating to immunity
During the early stages of the Alkatiri investigation, there was much speculation regarding Alkatiri’s possible immunity. JSMP considers that there are several discrete issues in this case relating to immunity.
4.2.1. Immunity as a member of the Government
Article 114 of the Timor-Leste Constitution provides that no member of the Government74 may be detained or imprisoned without the permission of the National Parliament, except for a felonious crime punishable with a maximum sentence of imprisonment for more than two years and in flagrante delicto.
This provision gives rise to some difficulties when considered in the context of the applicable penal laws (the Indonesian Penal Code and certain UNTAET Regulations) given that these do not draw a distinction between felonies and other crimes.75 In addition, if the provision is interpreted as providing an immunity not only from pre-trial detention but also from judicially imposed imprisonment, JSMP considers that the provision constitutes a troubling interference with the independence of the judiciary and an unnecessary derogation from the principle that all persons must be equal before the law.
It is clear that while the offences alleged against Alkatiri could carry a penalty of more than two years, they were not in flagrante delicto. This means that if the provision is applicable to Alkatiri the detention or imprisonment of Alkatiri would require the permission of the National Parliament.
However, a question arises as to whether the protection provided under this provision can be enjoyed by a person who is no longer a member of the Government, though he was at the time of his alleged offence. The section does not talk about the commission of crimes by members of Government, but rather about the latter’s arrest or imprisonment. This seems to indicate that the section applies to those who are members of Government at the time of their attempted arrest or imprisonment, rather than at the time of the alleged crime. In addition the purpose of the provision appears to be the protection of members of Government from the threat of detention or imprisonment which might interfere with their independence. For this reason it seems likely that the immunity is lost as soon as a person ceases to be a member of the Government.
For this reason this type of immunity is not enjoyed by Alkatiri (or, for that matter, by Lobato), since he is no longer a member of the Government.
4.2.2. Immunity as a Member of Parliament
In addition to serving as Prime Minister, Alkatiri also held (and continues to hold) the position of Member of Parliament. Although the Constitution does not provide that the Prime Minister will necessarily be a Member of Parliament, it likewise does not prohibit the holding of these two posts by a single individual.76 Nor does any other piece of legislation.77
Parliamentary immunity is covered by article 94(1) of the Constitution. However it extends only to immunity from civil or criminal liability for votes and opinions expressed by parliamentarians while performing their functions.78
Law 5/2004 on the Status of Members of Parliament provides a wider protection from legal processes to Members of Parliament. Article 11(1) states that:
“No member of Parliament shall be arrested or placed in pre-trial custody, except for felony punishable with a prison sentence exceeding five years following authorization from the National Parliament.“
This provision appears to provide that even where the crime being investigated can attract a prison sentence of more than five years, arrest and pre-trial detention of a suspect who is a Member of Parliament nonetheless requires the authorization of the National Parliament. Accordingly, unless the above provision is unconstitutional, as long as Alkatiri remains a Member of Parliament, his arrest or pre-detention is not permissible without the permission of the National Parliament.
However JSMP wishes to emphasise that this provision does not protect Alkatiri (or any other Member of Parliament) from criminal liability and sentencing to imprisonment by a Court. It only provides immunity from arrest and pre-trial detention. There is therefore no impediment arising from a statutory immunity to Alkatiri being investigated and, should there be sufficient evidence, indicted and convicted of criminal activities.
Furthermore, the provision does not appear to prevent the imposition of pre-trial restrictive measures other than pre-trial detention. Such measures can only be imposed by a judge,79 but it does not appear they require the arrest of the defendant. Where feasible and advisable, a hearing of the defendant should occur before the imposition of restrictive measures, however this is not required in every case.80 For this reason it seems that even if Alkatiri has immunity from arrest and pre-trial detention it remains possible for other forms of pre-trial restrictive measure to be imposed on him if necessary.
One problem could conceivably arise if it became necessary to arrest Alkatiri in order to question him. As explained above,81 if a suspect under investigation does not voluntarily submit to questioning by prosecutors it may be necessary for an arrest to be made for this purpose. It is unclear what would happen in such a case where the suspect is entitled to immunity from arrest. In the present case such a question did not arise, since Alkatiri was willing to submit to questioning voluntarily.
4.3. The absence of pre-trial restrictive measures
A noticeable feature of the Alkatiri case, when contrasted with the concurrent investigation into Lobato, is the lack of pre-trial restrictive measures. That is, unlike Lobato, Alkatiri has not been arrested, placed under house arrest or subjected to other form of judicially imposed restrictive measure.
Under the Criminal Procedure Code, restrictive measures may be imposed on a defendant82 by a judge83 if one of three requirements are met. There must be a reasonable fear that:
• the defendant might escape; or
• the investigation or trial might be disrupted through interference with evidence; or that
• criminal activity might be pursued or public order disrupted (given the nature of the offence, the circumstances and the defendant’s personality).84
JSMP was informed by the public prosecutor involved in this case that none of these requirements was satisfied in respect of Alkatiri. That is, the prosecution does not consider that there are any reasonable grounds for suspecting that Alkatiri might escape, interfere with evidence, pursue criminal activities, or cause a disruption to public order.85 For these reasons no request was made by the prosecution to a judge to impose such measures on Alkatiri.
Similarly, because Alkatiri willingly submitted to questioning by a public prosecutor, and because there was no request made by prosecutors to a judge to impose restrictive measures on him, prosecutors did not need to arrest Alkatiri.86 Indeed owing to Alkaitiri’s possible entitlement to immunity as a Member of Parliament, it is questionable whether his arrest is permissible (see section 4.2.2 above).
However if circumstances change and prosecutors believe that there are reasonable grounds for suspecting that Alkatiri might escape, interfere with evidence, pursue criminal activities or disrupt public order, they may seek the imposition of restrictive measures. As explained above (see section 4.2.2) JSMP does not believe that the immunity preventing arrest or pre-trial detention provides a bar to the imposition of other types of restrictive measure under the Criminal Procedure Code. Possible types of restrictive measure falling short of pre-trial detention include bail, obligations to appear periodically before a competent authority, and prohibitions on travel or quitting residence.87
Finally in this context, although no judicially imposed restrictive measures have been involved in the Alkatiri case, certain conditions must be met by all persons who have the status of defendant. The Criminal Procedure Code requires that such persons must provide proof of their identity and residence.88 In addition, if the defendant changes residence or is absent from his or her residence for more than fifteen days, this fact must be notified to the relevant authorities.89 These measures are imposed on all defendants and do not require the involvement of a judge.90
5. RELEVANT CRIMINAL OFFENCES
It is only following the conclusion of an inquiry that an assessment is made as to whether the evidence is sufficient to support the presentation of an indictment.91 The Alkatiri case remains under investigation and therefore no indictment has yet been presented in that case. As a result it remains unclear which criminal offences might be included in any possible future indictment.92
In respect of the Lobato case, although an indictment was recently issued by the Prosecutor-General’s Office and presented to the Dili District Court, as explained above (see 3.4.2) JSMP has not yet been able to access this indictment. Information issued by the Prosecutor-General’s Office indicates that the indictment includes allegations of the following crimes: misuse of public funds, homicide, and the unauthorised importation or use of firearms to disturb public order.93 However at the time of publication JSMP has been unable to ascertain whether other crimes are also included in the Lobato indictment.
JSMP is aware of reporting in the local and international media that certain criminal offences have been considered by prosecutors and may form the basis of a future indictment. Those that have been mentioned include:
• article 4.7 of UNTAET Regulation 2001/5; and
• article 107, 108 and 110 of the Indonesian Penal Code.
JSMP believes that there may be some difficulties with successfully prosecuting Lobato and/or Alkatiri under these provisions. Clearly, JSMP is not aware of all the evidence which has been gathered by prosecutors. It maybe that media reporting does not accurately reflect either the prosecution’s views concerning which criminal offenses might have been committed, or the evidence which has been found. For this reason JSMP is not in a position to state with certainty which crimes will be alleged or can be proven in this case, however it will give some comments on potential difficulties with those criminal offences which have been mentioned in the media.
5.1. Weapons Offences
UNTAET Regulation 2001/5 is the Law on Firearms, Ammunition, Explosives and Other Offensive Weapons in East Timor. It establishes a regime for regulating ownership of and dealings with weapons. Section 4 creates certain criminal offences, including that in section 4.7:
“Any person who without lawful authority imports into East Timor any firearm, ammunition or explosive with the intent to disrupt public order, or who uses any firearm, ammunition or explosive in the disruption of public order is guilty of a criminal offence and shall be punished by a fine not to exceed fifty thousand U.S. dollars (USD 50,000) or a term of imprisonment not to exceed twenty years, or both.”
Questions arise as to whether this provision can be successfully applied in a case where the alleged conduct is ordering that weapons already in Timor-Leste be distributed to others. Even though it does seem that the conduct as alleged was for the purpose of disrupting public order, it seems unlikely that it would constitute “importing”.94 Whether distributing weapons to others for specified purposes could constitute “using” presents a more difficult question which JSMP considers remains unclear under the law.
5.2. Offences related to subversive activities
Articles 107 and 110 of the Indonesian Penal Code originally related to the crime of “makar”. This is translated in the official English version as “revolution” but is understood in Bahasa as meaning an attack or an act of subversion directed against the government. While this crime is not clearly defined in the Indonesian Penal Code, JSMP considers that it must be constituted by attacks that are directed against the government or members of the government, and not by members of the government against opponents of the government, as is the alleged case here. Similarly, article 108 of the Indonesian Penal Code refers to the crime of “rebellion” which is defined as taking up arms against the Government or joining a group which takes up arms against the government, with the intent to rebel against the Government.
In any event, JSMP would be concerned by any reliance on these articles by the Office of the Prosecutor-General. As JSMP has previously pointed out,95 these provisions should not be considered valid law in Timor-Leste. Articles 104 to 110 of the Indonesian Penal Code were repealed by Law 11 of 1963 on Anti-Subversion, which was in turn repealed in May 1999 by Indonesian Law 26 of 1999. Law 27 of 1999 was then passed to create a new anti-subversion provision in article 107 of the Penal Code.
Section 3.2 of UNTAET Regulation 1999/1 revoked, among other laws, the “Law on Anti-Subversion”. Given that the 1963 Law on Anti-Subversion had already been repealed, JSMP believes that the intent of the UNTAET Regulation must have been to nullify those provisions in the Indonesian Law criminalizing anti-subversion which remained in force. This includes article 107 of the Indonesian Penal Code as it existed in 1999, following the enactment of Indonesian Law 27 of 1999. This interpretation is also consistency the purpose of UNTAET Regulation 1999/1 section 3, which was to invalidate those parts of the Indonesian law which were inconsistent with international human rights standards, including provisions like article 107 of the Penal Code which was designed and used to repress political opposition to the Indonesian Government. For this reason these provisions would in any event have been rendered invalid by UNTAET Regulation 1999/1 for their inconsistency with the enumerated international human rights standards.96 The law in force in Timor-Leste today continues to be that as defined by UNTAET Regulation 1/1999, namely the law current in Timor-Leste on the 25 October 1999 subject to subsequent UNTAET Regulations and valid laws passed in accordance with the Timor-Leste Constitution. For these reasons JSMP believes that any reliance on article 107, or associated provisions of the Indonesian Penal Code by the prosecution would be without legal foundation.
5.3. Other offences
For the above reasons JSMP believes that the criminal offences which have been mentioned in the media are in fact inappropriate bases for the indictment of Lobato and/or Alkatiri. A more appropriate type of charge in respect of the facts as they have been reported in the media might be a charge of some form of participation in the crimes of murder97 or the illegal use of a firearm.98 JSMP is not aware of whether evidence has been gathered by the prosecution indicating that the crimes (including murder and the illegal use of firearms) that were allegedly planned and incited by Lobato and/or Alkatiri were eventually actually carried out. If a murder or murders did occur, it seems likely that the defendants could be charged as principles in the commission of that crime, since it is alleged that they caused others to perpetrate the crime99 or at least intentionally provoked the execution of the crime by providing an opportunity, means and/or information.100
Even if there is no evidence that crimes resulted from the instructions and support that is alleged to have been given by Lobato and/or Alkatiri to Railos and his men, it is possible that some form of inchoate liability (incitement or conspiracy) might attach to their conduct. Although the Indonesian Penal Code refers to and defines conspiracy101 it does not clearly indicate whether a conspiracy amounts to a crime even when the planned crime does not eventuate. One alternative avenue for this form of liability is article 169 which prohibits, inter alia, participation in an association which has an intent to commit crimes.102
Finally, JSMP draws attention the fact that under the Indonesian Penal Code, when a crime is committed by an official in violation of a special duty or using the power, opportunity or means conferred on him or her by public office, the maximum sentences which may be imposed in respect of such crimes are increased by a third.103 Officials include persons who are elected and persons who are members of legislative or governmental bodies.104
5.4. Crimes against humanity
Finally, JSMP raises the possibility that the alleged acts may amount to crimes against humanity. A crime against humanity occurs where a person commits a murder (or any of several other specified crimes) as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack.105 In the present case, if there is evidence that a murder or murders occurred, it may be possible to argue that these crimes occurred in the context of a systematic attack against a civilian population and therefore constituted a crime against humanity. JSMP notes that in respect of such crimes, a person is criminally liable if he or she orders, solicits or induces the commission of the crime which in fact occurs or is attempted.106 However JSMP emphasizes that it is not in a position to assess whether sufficient evidence exists that a systematic attack was carried out, or that murders actually occurred as part of such an attack, and therefore cannot say whether it will be possible to issue indictments in respect of crimes against humanity.
If there was sufficient evidence to allege such crimes in an indictment, any trial would have to occur before a Special Panel of the Dili District Court, since these panels retain exclusive jurisdiction in respect of crimes against humanity.107 Alternatively, since Timor-Leste is a party to the Rome Statute of the International Criminal Court,108 it is able to refer a case of a suspected crime against humanity to the International Criminal Court for investigation.109 Indeed, if there is no referral but Timor-Leste is unwilling or unable to prosecute the crime the International Criminal Court may exercise its jurisdiction.110
However JSMP emphasizes that without knowledge of what evidence exists as to the commission and extent of the alleged crimes it is not possible to reach a conclusion as to whether any person may be charged with the commission of a crime against humanity.
6. THE FUTURE COURSE OF THE PROCEEDINGS
6.1. Future course of the Lobato case
In the Lobato case an indictment has now been presented to the Dili District Court. According to the Criminal Procedure Code, once the Court has received the records in the case from the Office of the Prosecutor-General, it must make an assessment of the case, including in respect of the Court’s jurisdiction and other matters which might affect the case.111 The Court must then decide whether to issue a rejection order (if the indictment is clearly groundless) or admit the indictment and set a trial date.112
6.2. Future course of the Alkatiri investigation
In the Alkatiri case, the process established by the Criminal Procedure Code now requires that the prosecution and police carry on with their inquiries in order to collect evidence and take other actions necessary in order to demonstrate that a crime was committed for which Alkatiri should be held liable.113
So long as the defendant is not placed in pre-trial detention, this inquiry is permitted to last up to one year from the time of its commencement,114 or two years if the public prosecutor determines that this is necessary to deal with the complexity of the case.115 At the conclusion of the inquiry the Office of the of the Special Panels within the Dili District Court has never been repealed or amended. JSMP notes that article 160 of the Timor-Leste Constitution provides that “[a]cts committed between the 25th of April 1974 and the 31st of December 1999 that can be considered crimes against humanity or genocide or of war shall be liable to criminal proceedings with the national or international courts”, although the intended effect of this provision is not clear.
Prosecutor-General will consider the case, and he may issue an indictment within fifteen days,116 or dismiss the case (for example if insufficient evidence has been found to prove that a crime was committed117). If an indictment is issued, the next phase of proceedings will begin, involving the preparation for and holding of a public trial.
If a case is dismissed no trial will occur, although the investigation could be reopened in the future if new evidence came to light.118
JSMP notes that if an indictment is issued, the competent judge may address a request to the National Parliament that Alkatiri be suspended from parliamentary office.119 If this occurs the National Parliament is required to decide whether such a suspension should be imposed.120
6.3. The need for further investigations
Finally, JSMP wishes to emphasize the urgent need for further investigations to be commenced in respect of the crimes alleged against Alkatiri, Lobato and their associates.
In particular, JSMP is concerned by the apparent failure of the Office of the Prosecutor-General to commence an investigation into the possible criminal liability of Vicente “Railos” da Conceição and his associates. JSMP has made enquiries with the Office of the Prosecutor-General as to whether such an investigation has been commenced but was informed that such information could not be provided.121 However if an investigation had begun into the criminal responsibility of Railos it would be expected that the latter would have been questioned by prosecutors as required by the Criminal Procedure Code.122 As far as JSMP is aware, this has not occurred.
This apparent failure to commence an investigation is despite Railos’ public statements indicating that he received (and possessed) firearms and agreed with others to use them for the purpose of carrying out assassinations. Such public statements amount to strong evidence of the commission of serious crimes by Railos and those working with him. JSMP believes that in such circumstances it is incumbent upon the Office of the Prosecutor-General to commence an investigation. This is required by the Timor-Leste Constitution, which provides that prosecutors have the responsibility for promoting the enforcement of the law and that this must be done with legality, objectivity and impartiality.123
JSMP understands that there is significant public sympathy towards Railos and his followers. It also believes that there is a public perception that because Railos made the public statements indicating his involvement in criminal activities voluntarily and in the interests of exposing governmental misconduct, he should be treated with leniency. However JSMP emphasizes that such factors may be relevant in sentencing, but do not effect the question of criminal liability and should not prevent the commencement of criminal proceedings in a case involving crimes of this magnitude.
JSMP has previously drawn attention124 to the fundamental need, as part of the rule of law, for the Prosecution Service to remain independent and impartial in the face of political pressure, and for the population to have confidence that this is the case. It is particularly important in times when the population is politically divided that prosecutors are seen to be equally rigorous in commencing prosecutions of persons on both sides of the political divide. JSMP therefore calls on the Office of the Prosecutor-General to immediately commence investigations against all persons who, on an assessment of the available evidence, may have been involved in the alleged crimes said to have been instigated by Lobato and/or Alkatiri.
124 See JSMP Justice Update 8/2006 on the Case of Alfredo Reinado (July 2006), pp8-9.
Endnotes
1 Article 220 of the Criminal Procedure Code provides that other than in cases of flagrante delicto (a crime that is in the process of being committed or that has just been committed, according to the definition in article 219) and certain narrowly defined emergency circumstances, arrests may only be carried out following the issue of an arrest warrant by a judge.
2 Article 63(1) of the Criminal Procedure Code requires that the police authority which carries out an arrest of a person in flagrante delicto must present that person for the first judicial questioning as soon as possible, but no more than seventy-two hours from the time of the arrest. Articles 63(2) and (3) provide further detail regarding the purpose of and participants in the questioning. Although article 63 refers to arrests of persons in flagrante delicto, it has been treated as applicable more generally and this approach is consistent with the right granted under article 60(a) to all defendants who are under arrest to be presented to the judge for the first judicial questioning within seventy-two hours of the arrest.
3 See article 14(1) International Covenant on Civil and Political Rights and Kavanagh v Ireland HRC Communication No. 819/98, 21 April 2001, UN Doc no. CCPR/C/71/D/819/1998, para. 10.4.
4 Under article 59(2) the status of defendant must be declared as soon as, inter alia, as suspect is arrested or an investigation gets underway against a particular person and the latter makes a statement before any judicial authority or police entity.
5 Article 59(5) Criminal Procedure Code.
6 The rights of defendants are set out in article 60 of the Criminal Procedure Code. Some duties of the defendant are set out in article 61. Further obligations falling on persons declared defendants are included in article 186. See further below at 4.1.1
7 Article 183 Criminal Procedure Code.
8 Article 193 Criminal Procedure Code. 9 Article 195(4) of the Criminal Procedure Code provides that restrictive measures under article 193 shall lapse after the expiration of twice as much time as is permitted by article 195(1) in respect of pre-trial detention. Article 195(1) permits pre-trial detention for one year without the presentation of an indictment, two years without a first-instance conviction, three years where an appeal on non-constitutional grounds has been filed, and three and a half years where an appeal on constitutional grounds has been filed.
10 Article 203 Criminal Procedure Code.
11 Article 235(1) Criminal Procedure Code.
20 See further below at 4.1.2.
21 Although article 63(1) appears to apply this requirement to arrests in flagrante delicto, it has been applied more generally and this approach is supported by article 60(a) which provides that all defendants under arrest have a right to be presented to a judge for first judicial questioning within seventy two hours of their arrest.
22 Article 63(2) Criminal Procedure Code.
23 Article 63(3) Criminal Procedure Code.
24 Article 225 Criminal Procedure Code. An exception to this is cases which are tried by way of expedited proceeding: see articles 346 to 350.
25 Articles 226(1) and (2).
26 Article 226(1)(b).
27 Article 266(1)(f) Criminal Procedure Code states that judges shall also perform other such acts as may be assigned by law.
28 Restrictive measures under Part I, Title IV, Chapter II of the Criminal Procedure Code include bail, obligations to appear periodically before a competent authority, prohibitions on travel, prohibitions against quitting residence, and pre-trial detention.
29 Articles 196 to 199 Criminal Procedure Code.
30 Section 33 of the Timor-Leste Constitution states that anyone who illegally loses his or her freedom has the right to apply for habeas corpus. JSMP considers that this right actually pertains to any person who loses his or her freedom, since it is not possible to say whether that situation is illegal until a habeas corpus application is made. Such an interpretation is also consistent with international law. Article 9(4) of the International Covenant on Civil and Political Rights, which has the force of law in Timor-Leste under section 9 of the Timor-Leste Constitution, provides that anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. Although a prohibition on quitting residence is not equivalent to pre-trial detention in the terms of the Criminal Procedure Code, it is sufficient to amount to a deprivation of liberty within the meaning of article 9 of the International Covenant on Civil and Political Rights: see for example Human Rights Committee decision in Gorji-Dinka v Cameroon, Communication No. 1134/2002, 10/5/05, para.5.4.
31 In addition to the effect of section 33 of the Constitution, the right is also imported into Timorese law by section 9 of the Constitution which incorporates the text of international conventions into local law. As explained in footnote 30, the right to apply for habeas corpus is protected by article 9(4) of the International Convention on Civil and Political Rights.
32 Section 34(2) Timor-Leste Constitution provides that accused persons have the right to select and be assisted by a lawyer at all stages of the proceedings. Article 60(d) of the Criminal Procedure Code provides that defendants in criminal proceedings have the right to be assisted by a defender.
33 Section 133(1) Timor-Leste Constitution.
34 Section 133(2) Timor-Leste Constitution.
35 Section 133(3) Timor-Leste Constitution; section 86(k) Timor-Leste Constitution. See also section 12 RDTL Law 14/2005 Statute of the Public Prosecution Service.
36 Section 133(2) Timor-Leste Constitution.
37 As required by section 133(1) of the Timor-Leste Constitution.
38 Section 2(1) RDTL Law 14/2005 Statute of the Public Prosecution Service.
39 Section 3(1) RDTL Law 14/2005 Statute of the Public Prosecution Service. 40 Article 7 RDTL Law 14/2005 Statute of the Public Prosecution Service.
41 Sections 3, 12.2 and 12.5 of UNTAET Regulations 2000/16 and 2001/26. 42 Article 236(1) Criminal Procedure Code.
43 Notice issued by the Office of the Prosecutor-General 21 September 2006.
44 Discussions between the Deputy Prosecutor-General and JSMP staff on 25 September 2006.
45 Article 75(1) Criminal Procedure Code.
46 Article 75(2)(a) Criminal Procedure Code.
47 Article 77(1) Criminal Procedure Code.
48 Article 77(3) Criminal Procedure Code.
49 During the questioning Alkatiri was represented by five lawyers: two from Timor-Leste, two from Portugal and one from Indonesia.
50 JSMP was not permitted to monitor this questioning. The Criminal Procedure Code does not require that prosecutorial questionings be accessible to members of the public or monitoring organisations.
51 Article 58 Criminal Procedure Code. 52 Article 59(1) Criminal Procedure Code.
53 Article 59(2)(a) Criminal Procedure Code. 54 Article 59(2)(b) Criminal Procedure Code. Note the difficulty associated with this provision in the context of article 181(1) of the Code: see footnote 58 below.
55 Article 59(2)(c) Criminal Procedure Code.
56 Article 59(2)(d) Criminal Procedure Code. 57 Rights of a defendant are set out in article 60 Criminal Procedure Code, basic duties are set out in article 61 Criminal Procedure Code.
58 For example, pre-trial restrictive or property-guarantee measures may only be imposed on a person who has the status of defendant: article 181(1) Criminal Procedure Code. However JSMP notes that this rule is effectively made redundant by article 59(2)(b) which states that the status of defendant must be declared as soon as a restrictive or property-guarantee measure has to be imposed on any person. This appears to allow the granting of defendant status in any case in which property-guarantee or restrictive measures are sought.
59 Article 60(b) Criminal Procedure Code.
60 Article 60(d) Criminal Procedure Code. 61 Article 60(e) Criminal Procedure Code.
62 Article 61(b) Criminal Procedure Code. 63 Article 61(c) Criminal Procedure Code.
64 Article 61(d) Criminal Procedure Code.
65 Article 59(3) Criminal Procedure Code.
66 Article 59(4) Criminal Procedure Code.
67 Article 59(2)(a) Criminal Procedure Code.
68 JSMP also notes in this context that article 34(2) the Timor-Leste Constitution confers the right to select and be assisted by a lawyer on “an accused person”. However it is unclear from what point a person can be considered “an accused person” for this purpose: that is, whether such a status commences from the issue of an indictment or earlier.
69 Interview with Prosecutor Luis Mota Carmo conducted by JSMP on 21 July 2006.
70 Article 231(1) Criminal Procedure Code.
71 Article 61(b) Criminal Procedure Code.
72 See article 59(2)(a) Criminal Procedure Code and the discussion above under heading 4.1.1.
73 However see article 186(2)(d) which appears to impose severe measures on a defendant for failure to comply with a notification from a competent authority to remain at the latter’s disposal, including, on one possible interpretation, trial in absentia (although this interpretation would render the provision inconsistent with international law, particularly article 14(3) of the International Covenant on Civil and Political Rights, and therefore invalid according to article 9(3) of the Timor-Leste Constitution.)
74 Under section 104(1) of the Constitution the Government comprises the Prime Minister, the Ministers and the Secretaries of State.
75 The current draft Penal Code also does not draw such a distinction. 76 Incompatible positions are set out in articles 68 and 78 of the Constitution. Article 68(2) also provides that the law shall define other incompatibilities.
77 Article 13 of Law 5/2004 on the Status of Members of Parliament sets out positions which are incompatible with the position of Member of Parliament. These do not include the position of Prime Minister or member of the Government.
78 This rule is mirrored in article 10 of Law 5/2004 on the Status of Members of Parliament. 79 Article 184(2) Criminal Procedure Code.
80 Article 184(3) Criminal Procedure Code.
81 See above at 4.1.2
82 However note the effect of article 59(2)(b) (discussed above in footnote 58) which effectively means that a restrictive measure could be imposed on any suspect.
83 Article 184(2) Criminal Procedure Code.
84 Article 183 Criminal Procedure Code. 85 Interview with Prosecutor Luis Mota Carmo conducted by JSMP on 21 July 2006.
86 According to article 217(1)(a) of the Criminal Procedure Code one purpose of arrests and subsequent detention is to bring a person before a judge for the imposition of restrictive measures.
87 Articles 187 – 193 Criminal Procedure Code.
88 Article 186(1) Criminal Procedure Code. This provision does not explain to whom such proof must be provided, but JSMP considers that the most likely intention was that such proof be provided to prosecutors or police, since they are the authority competent under the law to undertake most procedural acts during the investigation phase, and because article 184(1) provides independently that “The public prosecutor or police entity responsible for conducting an investigation may, in the course of such investigation, require the provision of proof of identity and residence.”
89 Article 186(2)(c) Criminal Procedure Code.
90 See articles 186(1) and 184(1) and (2) Criminal Procedure Code.
91 Under article 236(1) where there is sufficient circumstantial evidence at the completion of an inquiry an indictment must be issued within fifteen days.
92 When an indictment is issued, article 236(3)(c) of the Criminal Procedure Code requires that it must mention, inter alia, the relevant substantive provisions.
93 Notice issued by the Office of the Prosecutor-General 21 September 2006.
94 “Import” is defined under section 1 of the Regulations as meaning “to move or cause the movement of any object or thing into the territory of East Timor from any location outside the territory of East Timor.”
95 “Judge Applies Invalid Law”, JSMP Press Release, 25 April 2005.
96 See UNTAET Regulation 1999/1, section 1.
97 Murder is penalized under 340 of the Indonesian Penal Code. Manslaughter and manslaughter occurring in the course of a criminal offense are penalized under articles 338 and 339.
98 Section 4.3 of UNTAET Regulation 2001/5 Penalizes the use of firearms in the commission of a crime.
99 Article 55(1) Indonesian Penal Code. 100 Article 55(2) Indonesian Penal Code.
101 Article 88: An agreement between two or more persons to commit a crime.
102 Article 169(1) Indonesian Penal Code. 103 Article 52 Indonesian Penal Code.
104 Article 92(1) Indonesian Penal Code.
105 Section 5.1(a) UNTAET Regulation 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences. Note that despite otherwise following closely the definition contained in article 7 of the Rome Statute of the International Criminal Court, UNTAET Regulation 2000/15 does not contain the definition of “attack directed against any civilian population” which appears in article 7(2)(a) of the Rome Statute and which imports additional requirements into the definition of a crime against humanity.
106 Section 14.3(b) UNTAET Regulation 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences.
107 Sections 1.1 and 1.3 UNTAET Regulation 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences. Under article 22.1 such panels must be composed of two international judges and one East Timorese judge. Although the Serious Crimes Unit was disbanded in May 2005, the UNTAET legislation establishing the jurisdiction
108 Timor-Leste ratified the Rome Statute by National Parliament Resolution 13/2002.
109 Article 14 Rome Statute of the International Criminal Court. 110 Article 17 Rome Statute of the International Criminal Court.
111 Article 239(1)(a) Criminal Procedure Code. 112 Article 239(1)(b) and (c) Criminal Procedure Code.
113 Article 225 Criminal Procedure Code 114 Article 224 of the Criminal Procedure Code states that an inquiry starts when the report of the crime reaches the entity responsible for conducting the inquiry.
115 These time limits are found in article 232 of the Criminal Procedure Code. The time limits applicable are those under article 232(3) because the restrictive measure imposed on Lobato under article 193 does not amount to pre-trial detention.
116 Article 236(1) Criminal Procedure Code.
117 Article 235 Criminal Procedure Code. 118 Article 235(3) Criminal Procedure Code.
119 Article 11(3) Law on the Status of Members of Parliament. 120 Article 11(2) Law on the Status of Members of Parliament.
121 Interview with Prosecutor Luis Mota Carmo conducted by JSMP on 21 July 2006.
122 Article 231(1) requires that once an inquiry against a particular person is begun, the questioning of that person is compulsory.
123 Section 132(1) and (3) RDTL Constitution.
