SERIOUS CRIMES UNIT UPDATE X/03

 

22 December 2003

 

SCU: INVESTIGATION AND PROSECUTION

 

The  Serious  Crimes  Unit  (SCU)  was  established  by  the United Nations Transitional Authority in East Timor (UNTAET) following UN Security Council Resolution 1272 (1999). As mandated by the United Nations Security Council, the  Serious  Crimes  Unit is responsible for conducting investigations and preparing  indictments  to  assist in bringing to justice those responsible for  Crimes  against  Humanity  and  other serious crimes committed in East Timor in 1999.

 

Since  the independence of Timor Leste independence on 20 May 2002, the SCU has  worked  under  the  legal  authority  of the Prosecutor-General of the Democratic  Republic  of  East  Timor  (RDTL).  Dr.  Longuinhos Monteiro is currently  the  Prosecutor-General. The Office of the Prosecutor-General is divided into two sections: Ordinary Crimes and the Serious Crimes Unit.

 

The  Serious  Crimes  Unit  is  headed by the Deputy General Prosecutor for Serious  Crimes  who  reports functionally to the Prosecutor-General and is responsible  for  managing  the investigations and prosecutions of the SCU. The  Deputy  General Prosecutor for Serious Crimes is Mr. Nicholas Koumjian who began working at SCU on 20 October 2003.

 

The SCU currently has 111 staff members including 38 UN International staff including  prosecutors,  case managers, investigators, forensic specialists and  translators  as  well as 10 UN Police investigators and 35 UN national staff  including  translators  and  mortuary  staff.  In  addition, 10 East Timorese trainee prosecutors, case managers, ITU and data coding staff work in  teams  with International UN staff at SCU as well as a total of 18 East Timorese  Police  (PNTL)  trainee  investigators  with  12 new trainee PNTL investigators  having joined the investigation training programme at SCU in August 2003.

 

The  SCU  is  divided  into 4 Prosecution teams consisting of International prosecutors,  case managers and investigators as well as forensic, evidence management  and  witness  management  teams.  The Prosecution/investigation teams  cover  all  13  districts  of East Timor with District investigation offices  currently  operating  in  Dili and Covalima with the SCU Office in Oecussi  having  been  recently  closed  due  to  downsizing  of  UN Police investigators.

 

SCU  is  currently  investigating  and  prosecuting cases of Crimes against Humanity, as well as individual offences of murder, rape, torture and other serious  crimes  committed  in  East Timor between 1 January and 25 October 1999.

 

SCU INDICTMENT INFORMATION

 

Since  the  work  of  SCU  began,  81  indictments have been filed with the Special   Panel   for  Serious  Crimes  at  Dili  District  Court.  In  the indictments, there are charges filed against 369 accused persons.

 

The  accused  in  the  81  indictments  include  37 Indonesian TNI Military Commanders  and  Officers,  4 Indonesian Chiefs of Police, 65 East Timorese TNI  Officers  and soldiers, the former Governor of East Timor and 5 former District  Administrators.  At  present,  281  of those 369 indicted persons indicted by SCU remain at large in the Republic of Indonesia

 

10 Priority Cases and Additional Cases of Crimes against Humanity

 

The  10  Priority  case  indictments include the Liquica church attack, the Suai  Church massacre, the September attack on the compound of Bishop Belo, the  Maliana  Police station attack, and the TNI Battallion 745 killings. A total  of  183  accused persons are charged with Crimes against Humanity in the  10 Priority case indictments with 168 of those 183 accused at large in Indonesia.

 

The National indictment issued on 24 February charges the former Indonesian Minister  of  Defence  and  Commander  of  the Armed Forces, 6 high-ranking Indonesian  Military Commanders and the former Governor of Timor Leste with Crimes  against  Humanity  for  murder,  deportation and persecution during 1999.

 

To  date,  55 of the 81 indictments issued by SCU charge for Crimes against Humanity  against  339  accused  persons.  These indictments include Crimes against Humanity cases such as the Atabae rape cases, the Baucau indictment and  the TNI rape case charging 5 East Timorese TNI soldiers with rape as a Crime against Humanity

 

Aileu TNI Soldier indictment

 

On  18 November 2003, a single indictment was filed with the Special Panels for  Serious Crimes charging former East Timorese TNI soldier Adolfo Amaral from  Aileu  district  with  murder  and attempted murder as Crimes against Humanity.  Amaral  is  charged  with  the  murder  of  Francisco Alexio aka Carvalho  and  the  attempted  muruder of three men near Kotolau village in Aileu  district on 6 September 1999. The indictment alleges that a group of uniformed  TNI  soldiers fired multiple shots at the group of four men with Amaral allegedly shooting at close range Francisco Alexio who died from his injuries  and another victim who survived his injuries. It is believed that Amaral  remains at large in the Republic of Indonesia. Arrest warrants have been requested from Dili District Court which when will be forwarded to the Attorney General of the Republic of Indonesia and the Interpol organization when received by SCU.

 

SCU PNTL TRAINING PROGRAMME

 

In  August 2003, 12 new trainee PNTL investigators joined the investigation training  programme  at  SCU.   The  12  PNTL Investigators at SCU recently completed  an  8-week  Training  Course  on 21 November 2003 conducted by a USAID-funded  Police training consultant and an SCU UNPOL investigator. The course  provided the trainee PNTL with specific training in investigations, legal  procedure  and  specific  skills  related  to  investigating serious violations  of humanitarian law. Crimes against humanity, murder and sexual offences were examined in detail during the course.

 

The  PNTL  training course covered how to plan and manage an investigation, including  crime  scene and evidence management. With the completion of the intensive  course,  the  12  PNTL  are  now  assigned  to  SCU  operational investigation  teams  undergoing  practical training in the field under the supervision  of  UNPOL and UN International Investigators in a continuation of their training.

 

TRIALS AT THE SPECIAL PANELS FOR SERIOUS CRIMES

 

In  2000,  UNTAET set up Special Panels of Judges at Dili District Court to hear  cases  of  Crimes  against  Humanity and serious crimes from the 1999 period.  The  Special  Panels  for  Serious  Crimes  are  comprised  of two International  Judges  and  one East Timorese Judge to hear cases of Crimes against Humanity and serious crimes from the 1999 period.

 

To  date,  there  have  been  46  convictions, 1 acquittal and 2 indictment dismissals  at  the Special Panels for Serious Crimes since trials began (1 indictment  dismissal  was  subsequently re-instated by the Court of Appeal ?see  below). Those convicted and acquitted in trials include East Timorese TNI  soldiers,  East Timorese militia members and an East Timorese Falintil resistance fighter.

 

Since  1  July  2003,  there  have  been a total of 14 adjudications at the Special  Panels  for  Serious  Crimes  out of the total of 30 adjudications since  trials  began  in  January  2001. At present, 8 trials are currently proceeding  at the Special Panels for Serious Crimes with further trials of accused persons in Timor Leste scheduled to commence in the coming months.

 

The Conviction of Covalima Laksaur militia member Miguel Mau

 

The  trial  of  the Miguel Mau began on 13 November 2003. During the trial, Mau  pleaded  guilty to three counts of Crimes against Humanity in relation to  crimes  committed  in  Tilomar  subdistrict on 23 April 1999. The three counts of Crimes against Humanity included the murder of three independence supporters  and  the  enforced  disappearance  of Lodificus Rabo from Nikir village  in  Tilomar  subdistrict, and the torture of several villagers and the  destruction  of  property in a joint TNI and Laksaur militia attack on Fatukmetan village in Tilomar subdistrict.

 

On  26  November  2003,  Judges  at  the  Special Panels for Serious Crimes convicted  Miguel Mau of Crimes against Humanity including murder, enforced disappearance  and  persecution. Taking into account the guilty plea of the former  Laksaur militia member, the Special Panel of three Judges sentenced Miguel Mau to 9 years imprisonment.

 

The Conviction of Carlos Soares (aka Carman) from Ermera district

 

The  trial  of Carlos Soares began on 6 October 2003. During the trial, the SCU Prosecution had argued that Soares stabbed Graciano Mau Mario in Aitura village  in  Ermera  district  on  19  September  1999 after being verbally insulted by him, while the Defense counsel claimed that Soares had acted in self-defence. On 24 November 2003, Judges at the Special Panels for Serious Crimes  found  Carlos  Soares (aka Carman) guilty of murder in violation of section  8  of  UNTAET Regulation 2000/15 and article 338 of the Indonesian Penal  Code.   The Special Panel of Judges found Soares responsible for the murder  of Mau Mario sentencing Soares to 4 years and 6 months imprisonment The  case  of  Carlos  Soares  is  regular murder case from the 1999 period without any connection to the Crimes against Humanity cases against TNI and militia  members  which  are  the  main  focus  of  the  investigations and prosecutions of the SCU.

 

The Acquittal of TNI soldier Paulino de Jesus

 

The  trial  of  Paulino  de  Jesus  began  on  4  August 2003. In the first acquittal  at  the  Special Panels, on 8 December 2003 Special Panel Judges decided by a 2-1 majority to acquit Paulino de Jesus of one count of murder as  a  Crime  against  Humanity and one count of attempted murder as Crimes against  Humanity.  Paulino  de  Jesus, who was serving as an East Timorese soldier  in the Indonesian military (TNI) in Bobonaro district in 1999, was accused  of  the  direct  perpetration  of  one  murder and assisting in an attempted murder in Lourba village on 10 September 1999.

 

Following  the  acquittal,  Paulino de Jesus was released from detention in Timor Leste. Acquittals at the Special Panels can be appealed. According to UNTAET  Regulation 2000/30, the Office of the Deputy Prosecutor General for Serious Crimes has ten days to file a notice of appeal.

 

The Conviction of former Maliana Dadurus militia member Salvador Soares

 

The  trial  of  Salvador  Soares commenced on 29 September 2003. Soares was convicted  on  9 December 2003 of Crimes against Humanity for the murder of two  East  Timorese UNAMET employees in Maliana on 2 September 1999. Soares was  found guilty of murder as a Crime against Humanity for the stabbing of Ruben  Barros  and  responsible  for  the  murder of Dominggos Pereira on 2 September  1999.  The  defendant was found not guilty of torture as a Crime against  Humanity  for  the  beating of Ruben Barros during the incident in front  of  the  family home of Barros in Maliana town. The Special Panel of Judges sentenced the former Dadurus Merah Putih militia member from Maliana to 10 years and 6 months imprisonment.

 

The  two  UNAMET employees were specifically targeted in a joint Indonesian military  (TNI)-  Dadurus  militia attack led by a TNI Sergeant as violence began  to  escalate  in Maliana immediately after the popular consultation. The  UNAMET  killings  indictment issued in June 2002 charges a total of 10 individuals  including the former Bobonaro district TNI Intelligence Chief, Lieutenant Sutrisno and Bobonaro district TNI Intelligence member, Sergeant Asis  Fontes  with  Crimes against Humanity of murder and torture. INTERPOL Arrest  Warrants  have  been  issued by INTERPOL in relation to five of the indicted  persons  including  Lt.  Sutrisno, who is believed to continue to serve  in  the Indonesian armed forces and Sergeant Asis Fontes who is also believed to be residing in Indonesia.

 

The Conviction of former Laksaur Platoon Commander Damiao da Costa Numes

 

The  trial  of  Damaio  Da Costa Nunes aka Damianus commenced on 29 October 2003  and  was  concluded  on  10  December  2003 when Special Panel Judges convicted  Damiao da Costa Nunes of two counts of murder as a Crime against Humanity  and  one  count  of  persecution as a Crime against Humanity. The former  Laksaur  militia platoon commander from Covalima district was found guilty  of one count of murder for his role in the stabbing of independence supporter Jaime Da Costa Nunes in Mota Ulun Village in Covalima District on 27  August  1999. Nunes was further found guilty of murder for the stabbing of  Jose  Dos  Reis  in the chest on 7 September 1999. Nunes was also found guilty  of  persecution  as  a Crime against Humanity for the abduction and disappearance  of Albino Nahak (aka Albino De Niri) in Suai sub-district on 6  September  1999  who  was  later found dead. The Special Panel of Judges sentenced Nunes to 10 years and 6 months imprisonment.

 

The Conviction of former TNI Head Sergeant Marcelino Soares

 

The  trial  of  Marcelino  Soares  commenced on 10 September 2003 and on 10 December  2003  a three-Judge Special Panel later sentenced former TNI Head Sergeant  Marcelino  Soares  to  11  years  imprisonment for Crimes against Humanity  of  murder,  torture and persecution by unlawful detention in the Hera area of Dili district in April 1999. Soares was found guilty of murder as  a  Crime  against  Humanity for the killing of Luis Dias Soares who was beaten  to  death  by  TNI members at the TNI post in Hera town on 20 April 1999.  Soares  was also found guilty of torture as a Crime against Humanity for  the  beating  and torture of Luis Dias Soares and 2 other independence supporters  at  the  TNI  post in Hera on 20 April 1999. Soares was further found guilty of persecution for the illegal detention of the three men with one held captive for four days at the TNI post where he was severely beaten by  TNI  soldiers before being released on 24 April 1999. This is the first case  at  the  Special  Panels  of  a  TNI member to be convicted of Crimes against Humanity since trials began in Timor Leste.

 

The crimes committed on 20 April 1999 at the Hera TNI Post are also charged in  the  Hera  Indictment  issued  by SCU which charges 18 individuals with Crimes   against   Humanity  including  murder,  torture,  deportation  and persecution  committed in the Hera and Metinaro areas in Dili between April and September 1999. The accused persons include 2 Indonesian military (TNI) commanders  in  Hera  and  Metinaro  subdistrict  and  4  East Timorese TNI soldiers  as  well as militia commanders. All of the 18 accused in the Hera indictment are believed to be at large in the Republic of Indonesia.

 

The verdict in the trial of former Tim Alfa members from Los Palos

 

The  trial began on 22 September 2003 with former Tim Saka members Gilberto Fernandes,  Jose  da  Costa  and Inacio Olivera charged with Crimes against Humanity  for the murder of Verissimo Dias Quintas, the Liurai (local King) of  Los Palos on 27 August 1999. On 12 December 2003, Judges of the Special Panels  for  Serious Crimes acquitted three former Tim Alfa militia members of  the  charges of Murder and Persecution as Crimes Against Humanity while convicting  the  three former Tim Alfa members of Violence Against Property or  Persons.  The Prosecution alleged that although the three defendants in this  trial  were not the direct perpetrators of the killing, they played a sufficient  role  to  incur  criminal  responsibility  for  the murder. The Special  Panel disagreed and acquitted on the charge in Count One of murder as  a Crime against Humanity. On Count Two,  Persecution as a Crime Against Humanity,  the  Special  Panel  re-qualified the crime as "Violence Against Property  Or  Persons  Committed  By  A Group Of People United For A Common Purpose" pursuant to Article 170 of the Indonesian Penal Code. The evidence presented  at  trial showed that the accused fired multiple gunshots at the residence of Verissimo Dias Quintas. For this act, the Special Panel Judges sentenced   the   three  men  to  imprisonment  of  1  year  and  6  months respectively.

 

In an indictment issued in November 2002, the Deputy Prosecutor General for Serious Crimes charged 12 persons for the 27 August 1999 attack by BRTT and Tim  Alfa  members  on  the  house of Verissimo Dias Quintas, including the three  who  were tried in this case. With the acquittal of the three former Tim  Alfa  members  of  murder,  9  indictees remain at large in Indonesia, including  Indonesian  TNI  Kopassus  Special  Forces  Commanders in Lautem district,  Rahman  Zulkarnean  and  Syaful  Anwar  and  the former District Administrator  of  Lautem, Edmundo da Conceicao Silva, described in the SCU indictment,  as  an  Honorary  Member  of  Indonesian  TNI Kopassus Special Forces.  INTERPOL  arrest  warrants  have  been  issued  for all 9 accused, including  Lieutenants Zulkarnean and Anwar who are believed to continue to serve in the Indonesian armed forces.

 

THE COURT OF APPEAL

 

The  Court  of  Appeal  was established under UNTAET regulation 2000/11 and began  to  hear  appeals  in  7 February 2001. The function of the Court of Appeal  is  to  allow  parties to cases to appeal decisions of any district courts in Timor Leste. This includes those parties to criminal cases before the  Special  Panels for Serious Crimes relating to crimes against humanity and other serious crimes committed during 1999.

 

The  President  of  the Court of Appeal is Dr. Claudio de Jesus Ximenes who sits  on  a  panel  of  three  judges at the Court of Appeal along with one International Judge and one East Timorese Judge. In future months, a number of  appeals  filed by the prosecution and the defence from decisions of the Special Panel for Serious Crimes will be heard by the Court of Appeal.

 

The Appeal in the case of former Aitarak militia Domingos Amati and Francisco Matos

 

On  28  February 2003, SCU indicted Domingos Amati and Francisco Matos with the  murder  of  Antonio Pinto Soares (aka Charles) in violation of Section 340  of  the  Penal  Code of Indonesia. In a preliminary hearing held on 11 July  2003,  one  of  the  Special  Panels had dismissed the SCU indictment charging  Domingos  Amati  and  Francisco  Matos with the murder of Antonio Pinto Soares (a.k.a. Charles) on 5 September 1999 in the Hera area of Dili. The  Special  Panel  Judges  had  reasoned  that the facts disclosed in the indictment  did  not amount to "murder" under Section 340 of the Penal Code of  Indonesia,  which requires premeditation. The Judges had ruled that the facts  alleged in the indictment only satisfied the requirements of Article 338,  which  they  interpreted as "manslaughter."  While "murder" committed between  1 January and 25 October 1999 falls within the jurisdiction of the Special Panels, "manslaughter" does not.

 

Following  the  dismissal  of  the  SCU indictment, on 21 July 2003 the SCU Prosecution  filed  an appeal with the Court of Appeal against the decision of  the  Special  Panel.  On 9 December 2003, the Court of Appeal held that Article 338 of the Indonesian Penal Code qualifies as a "murder" charge and therefore the case fell within the jurisdiction of the Special Panels.  The Court  of  Appeal  ruling overturned the dismissal of the indictment by the Special  Panel  which  had  interpreted  Article  338 as "manslaughter" and therefore  outside  the  jurisdiction  of  the Special Panels as defined in UNTAET Regulation 2000/15.

 

The  decision  overturning  the  Special Panel decision means that Domingos Amati and Francisco Matos will face justice for murder in a future trial at the  Special  Panels  for  Serious  Crimes  under the murder charges in the original  SCU  indictment.  The  9  December  2003 decision of the Court of Appeal  is  the  first time that the Court of Appeal has applied Indonesian law  to  crimes  committed in Timor Leste since its controversial July 2003 ruling  in the case of The Deputy General Prosecutor vs. Armando Dos Santos holding that Portuguese law applied.  (See SCU Update VII/03).