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EAST TIMOR HUMAN RIGHTS CENTRE 124 Napier St Fitzroy 3065 Australia PO BOX 1413 Collingwood 3066 Australia Tel: +61 3 9415 8225 Fax: +61 3 9415 8218 E-mail: ethrc@minihub.org Director: Ms Maria Brett Chair: Bishop Hilton Deakin ________________________________________________________________________

EAST TIMORESE POLITICAL PRISONERS

23 June 1998

Ref: SPR1/98 ________________________________________________________________________

INTRODUCTION

Since the 1975 invasion of East Timor by Indonesia, many East Timorese people opposed to Indonesian rule have been detained and convicted for their political activities. Often, the detainees have done nothing more than express their political views by non-violent means, while others have allegedly been involved in politically motivated activities involving violence. Detainees who are charged, are tried and convicted in Indonesian courts, even though Indonesia's sovereignty over East Timor has not been recognised by the United Nations and it is questionable whether Indonesian courts have the competence to try East Timorese people. There are frequent reports of political prisoners being convicted at trials which fail to meet international standards of fairness, with convictions being based on information obtained by torture and ill-treatment, and suspects being denied access to independent legal counsel.

The true extent of political imprisonment in East Timor is not known because international human rights organisations are denied access to East Timor, and because Indonesian authorities continue to practice short-term arbitrary detention in order to systematically intimidate, interrogate and torture East Timorese people suspected of opposing Indonesian rule in East Timor. Incommunicado detention is also common, enabling the Indonesian authorities to ignore requirements of their own legal system and to continue interrogation and torture of suspects without the scrutiny and protection provided by independent legal representation and humanitarian assistance.

With the recent change in presidency in Indonesia, there is an opportunity for genuine political reform in Indonesia, and a resolution of the East Timor conflict. President Habibie has acknowledged that political reform must include the release of political prisoners and some Indonesian and East Timorese prisoners have already been released. In total, twenty-nine East Timorese political prisoners have been released, a positive step which is welcomed by the East Timor Human Rights Centre (ETHRC)(1). On 1 June, the Semarang court handed down a not-guilty verdict for four East Timorese prisoners who were standing trial for their alleged involvement in a bomb-manufacturing operation in Semarang, Indonesia(2). On 10 June, President Habibie announced that fifteen East Timorese political prisoners would be released. The group included six people who were given an amnesty(3) and another nine against whom all charges were withdrawn(4). A further ten East Timorese people facing charges were released on 13 June(5).

The releases are welcomed as an important sign of the new President's commitment to political reform, however, if President Habibie is genuinely committed to political reform he must go much further and release other East Timorese political prisoners. In particular, the government of Indonesia should immediately and unconditionally release Xanana Gusmão, leader of the East Timorese Resistance. The ETHRC believes Xanana Gusmão, as President of the CNRT (National Council of Timorese Resistance, the united political front of the Resistance), should be released to enable him to participate in the dialogue for a solution to the East Timor conflict. The unconditional release of Xanana Gusmão would be a significant gesture of good will on the part of the government of Indonesia and such a gesture is clearly needed in the interests of reconciliation and as a sign of the new government's commitment to resolving the East Timor problem.

In the same spirit of reconciliation, and as a confidence-building measure, the ETHRC believes the government of Indonesia should release all other East Timorese political prisoners. This must include the release of the five East Timorese prisoners of conscience convicted for their non-violent political activities(6) and any other prisoners of conscience still in detention, and up to 141 other political prisoners who, it is believed, have been convicted or are awaiting trial for their politically motivated activities. The importance of releasing all prisoners as a confidence-building measure cannot be underestimated, given the fact that serious human rights violations have been perpetrated in East Timor for the last twenty-three years.

Political reform must include respect for freedom of expression and association. This means Indonesian security forces must stop the practice of arbitrarily arresting individuals for their non-violent political activities. All East Timorese should have the right to freedom of expression and association, without fear of harassment, arbitrary arrest, arbitrary and incommunicado detention, torture and ill-treatment.

The reform process should also include reform of the repressive and archaic legislation used to suppress political dissent and imprison East Timorese people opposed to Indonesian rule in East Timor. There is a need for greater respect for the rule of law so that trials meet international standards for fairness. Trials and convictions should not be based on information obtained by torture and ill-treatment and suspects should be given regular access to independent legal counsel. In fact, a complete overhaul of the Indonesian judicial system will be required in order to ensure a truly independent judiciary.

Finally, reforms should be reflected in a commitment to upholding accepted international standards, which means ratifying important international conventions such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the International Covenant on Civil and Political Rights (ICCPR) and its Optional Protocols, and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Ratifying CAT is considered to be particularly important in order to demonstrate the government of Indonesia's commitment to human rights as the government agreed, at the 1998 UN Commission on Human Rights, to ratify this convention.

A. PRISONERS OF CONSCIENCE

Prisoners of conscience are people detained or convicted solely for their non-violent political activities(7). There are five known East Timorese prisoners of conscience who are currently serving sentences for their non-violent opposition to the Indonesian presence in East Timor. Gregorio da Cunha Saldanha, Saturnino da Costa Belo, Jacinto das Neves Raimundo Alves and Francisco Miranda Branco were convicted for organising the 12 November 1991 march to the Santa Cruz cemetery, which resulted in the Santa Cruz massacre. The fifth prisoner, Joao Freitas da Camara, was convicted for organising a demonstration in Jakarta, protesting against the Santa Cruz massacre. There may be other East Timorese prisoners of conscience but this is difficult to confirm as little information is available about prisoners in East Timor.

Repressive legislation

The five prisoners of conscience were all convicted under the repressive provisions of the Indonesian law, which have been employed regularly to suppress political dissent in East Timor. In fact, the Indonesian government has used numerous repressive and archaic legislative provisions, decrees and regulations, in order to suppress dissent and imprison East Timorese people opposed to Indonesian rule in East Timor(8).

The Anti-Subversion law(9) is used to punish peaceful activities of political opponents. The vague and sweeping language of the Anti-Subversion law enables prosecution and conviction of any-one whose words or actions could be construed as disruptive of public order, the state ideology (Pancasila), the government, its institutions or policies. Where the Anti-Subversion law is invoked, basic rights provided under the Indonesian Code of Criminal Procedure (KUHAP), do not apply, or are ignored by the authorities, thereby facilitating practices such as incommunicado detention and torture. For example, political suspects are frequently detained by members of the Indonesian military instead of the police as required under KUHAP. Political suspects can also be held indefinitely at the discretion of the military commander.

In recent years, the Indonesian authorities have resorted less frequently to the Anti-Subversion law for convicting East Timorese people. Although this development has been welcomed, it has unfortunately meant that the government of Indonesia has instead resorted to provisions of the Indonesian Criminal Code (KUHP) in order to convict East Timorese opponents of the Indonesian regime and portray them as common criminals, even where they are engaged in peaceful activities. In this way, the government of Indonesia has sought to avoid criticism for imprisoning its political opponents, and to claim legitimacy for its actions.

The repressive "hate-sowing" articles (articles 154, 155, 156 and 160 of KUHP) are also used to suppress political dissent. The articles enable authorities to imprison people for up to seven years for "spreading feelings of hatred toward the government". Other KUHP articles can be used to imprison people for up to 6 years for "insulting the President" (articles 134, 136 and 137) and "incitement to violence" (article 160).

The ETHRC calls on the government of Indonesia to repeal all repressive laws, regulations and decrees which are used to suppress the peaceful and legitimate expression of dissent, including:

· The "hate-sowing" articles and the "insulting the President" and "incitement to violence" articles contained in the Indonesian Criminal Code (KUHP); and · The Anti-Subversion law.

The East Timorese prisoners of conscience

· Gregorio da Cunha Saldanha, now aged 35, a former nurse at a Dili public hospital, was arrested after being shot during the Santa Cruz massacre on 12 November 1991. Following his arrest, Saldanha faced constant interrogation for two days, despite being weak from his gunshot wound. He was accused of being the principal organiser of the demonstration and in 1992 he was found guilty of subversion under the Anti-Subversion law and sentenced to life imprisonment.

· Saturnino da Costa Belo, now aged about 34, was arrested on 30 November 1991 in relation to the Santa Cruz massacre. He is serving a nine year sentence after being found guilty under the "hate -sowing" articles of the Indonesian Criminal Code for publicly expressing feelings of hostility, hatred or contempt towards the government of Indonesia. Following his arrest, Saturnino was subjected to torture and has also been periodically tortured since that time. He was also placed in solitary confinement after shouting pro-independence slogans while testifying at the trial of Xanana Gusmão in 1993.

· Jacinto das Neves Raimundo Alves, now aged about 41, a former civil servant, was arrested on 12 November 1991 following the Dili massacre. He was found guilty of subversion under the Anti-Subversion law and is serving a ten-year sentence.

· Francisco Miranda Branco, now aged about 48, was arrested in December 1991 after participating in the November Santa Cruz demonstration. He was convicted under the Anti-Subversion law and received a fifteen year sentence. He has serious health problems and has been denied proper medical treatment.

· Joao Freitas da Camara, now aged about 42, a law student at the time of the Santa Cruz massacre, was arrested after participating in a demonstration in Jakarta to protest against the Santa Cruz massacre. He was sentenced to ten years imprisonment after being convicted of subversion under the Anti-Subversion law.

Four of the prisoners of conscience, Gregorio da Cunha Saldanha, Saturnino da Costa Belo, Jacinto das Neves Raimundo Alves and Francisco Miranda Branco, were originally detained at LP Becora prison in Dili but were transferred secretly to the Semarang prison in Indonesia in June 1994. Their families, who had been visiting them weekly, were not notified of the plans to move the prisoners. They arrived to visit the prisoners as usual, only to find they had "disappeared". After inquiries were made by human rights groups, the then Minister of Justice confirmed that they had been moved to the Semarang prison. Despite requests for the prisoners to be moved back to Dili, they remain in detention in Semarang, making visits by family and friends extremely difficult. It is believed prisoners in East Timor are routinely moved to prisons in Indonesia to relieve over-crowding in the East Timorese prisons, however, it is more likely that these prisoners of conscience were moved because they have been such outspoken opponents of Indonesian rule in East Timor. In fact, their transfer to Semarang coincided with the 1994 visit to East Timor by the UN Special Rapporteur on Torture and it appears that authorities wished to prevent them from meeting with the Special Rapporteur.

B. POLITICAL PRISONERS

In East Timor, in the context of the heavy Indonesian military presence and an ongoing armed resistance, many East Timorese people are being convicted for their alleged involvement in politically motivated activities involving violence. There are at least 117 East Timorese prisoners convicted or awaiting trial for political activities which allegedly involved violence(10) and another nineteen prisoners whose continuing detention cannot be confirmed, including fourteen detainees believed to be in incommunicado detention.(11) It is believed the number of East Timorese actually detained could be much higher but it is impossible to obtain names of all detainees because access to East Timor is so strictly controlled. This highlights the need for access to East Timor for international human rights organisations, which at present is not allowed.

Some detainees could in fact be prisoners of conscience, but without more information, it is impossible to determine the real reason for their detention. It is also difficult to ascertain how many of the political prisoners have been sentenced at unfair trials, how many have been convicted on the basis of information extracted by torture, and how many have received unduly harsh sentences.

Laws used to detain and convict political prisoners

Most East Timorese political prisoners have been charged or convicted under the Indonesian Criminal Code (KUHP)(12), making it very difficult to clarify just who are the "political" prisoners. Authorities frequently resort to provisions relating to separatism and rebellion to imprison East Timorese people opposed to Indonesian rule in East Timor and accused of violent activities (articles 104, 106, 107, 108 and 110). Other East Timorese accused of violent activities have been convicted under articles which specifically relate to violence (articles 170, 214, 338 and 340). In recent years, an archaic presidential decree, Emergency Law No. 12 of 1951, which bans the use and possession of certain weapons and ammunition, has been dusted off and used extensively in East Timor, making it very easy for authorities to convict East Timorese people.

The Indonesian government claims that many of the East Timorese political prisoners are "common criminals" because they have been convicted under provisions of the Criminal Code. This legalistic approach is both inaccurate and inappropriate in the East Timor context, obscuring the fact that the motivation for the activities of the East Timorese prisoners is political. The Indonesian government's legalistic approach is also inappropriate given that many East Timorese political prisoners have been convicted at trials which fail to meet international standards for fairness, and their convictions were often based on information obtained by torture and ill-treatment.

Xanana Gusmão

Xanana Gusmão, leader of the East Timorese Resistance, was arrested on 20 November 1992 and in May 1993, he was sentenced to life imprisonment after being convicted of rebellion and illegal possession of firearms. The sentence was later commuted to 20 years.

International human rights organizations raised concerns that Xanana was not given a fair trial. He was denied legal representation until six days before his trial commenced and is believed to have been subjected to psychological ill-treatment in the form of sleep deprivation, apparently intended to prevent him from preparing his defence plea. The trial was conducted in Bahasa Indonesia, a language in which Xanana and defence witnesses were not fluent. The trial failed to meet international standards for fairness. For example, it is believed prosecution witnesses, many of whom were also political detainees, gave testimonies which were extracted under duress by the authorities, making their testimonies unreliable as evidence. Some defence witnesses did not testify because of fear of reprisals. Xanana was only permitted to read two pages of his twenty-nine page defence plea, which called into question Indonesia's claim to sovereignty over East Timor.

The irregularities in the conduct of Xanana's trial are certainly good cause for an immediate fair and impartial re-trial, yet the weight of international opinion is calling on the government of Indonesia to go much further and release Xanana Gusmão and these calls are difficult to ignore. The ETHRC supports the calls for Xanana Gusmão, President of the CNRT (National Council of Timorese Resistance - the united political front of the East Timorese Resistance) to be immediately and unconditionally released to enable him to participate in the dialogue for a solution to the East Timor problem.

Initially, President Habibie took a legalistic approaching, announcing that Xanana would not be released because he was considered to be a "common criminal". However, as leader of the East Timorese Resistance, Xanana Gusmão's actions were obviously politically motivated, his role a political one. The government's position has now changed, perhaps due to international pressure, to one of releasing Xanana and giving the territory of East Timor "special status", on condition that East Timor accepts integration with Indonesia. This proposal is basically a reiteration of Indonesia's position, a position clearly not acceptable to the many East Timorese who are calling for a UN-supervised referendum to determine East Timor's future. In taking this position, President Habibie is effectively cutting off any opportunity for genuine dialogue with the East Timorese people. His position also makes it unlikely that Xanana will in fact be released as the proposed release is tied to a requirement of integration of East Timor into Indonesia, an option very unlikely to have the support of the East Timorese people.

The ETHRC believes Xanana Gusmão should be immediately and unconditionally released. His release should not be conditional upon a pre-determined outcome to the conflict but should reflect a genuine willingness to enter dialogue with the East Timorese people in order to find an acceptable solution to the East Timor conflict.

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