|Subject: HR Court Monitoring Coalition: ET
Ad Hoc Trial Proceeding
HUMAN RIGHT COURT MONITORING COALITION
Statement of Position on EAST TIMOR AD HOC TRIAL PROCEEDING No. /KP2HAM/VI/2002
Loopholes found in the process of establishing Human Right Court for crimes against humanity of East Timor (as described by the Coalition on its past press conference) have been proven. One example is the rejected positioning of three victimized witnesses from the Republic Democratic of Timor Leste (RDTL) to stand witness during the Human Right Ad Hoc Court proceedings of East Timor. They cancelled visit to Indonesia due to security reason (as of the letter issued by RDTL Attorney General, Longuinhos Monteiro, dated 3 June 2002, which was read by Jasa Darmono during the proceedings).
Responding to this issue, we, Human Right Organizations and Communities under the umbrella of Human Right Court Monitoring Coalition, would like to state our position:
1. Protection of Victims and Witnesses
The legal instruments on the protection of victims and witnesses (i.e. Law No. 26 articles 34 and 35 and Government Regulation (PP) No. 2/2002) that were enacted only one day before the commencement of the Human Right proceedings provide no security and protection for witnesses, particularly the victim witnesses, before the court. The Head of Attorney General office Legal Information Center (Puspenkum) responses to the rejection statement confirmed that the Government of Indonesia secured the witnesses’ safety and security. This makes the rejection statement confusing. The RDTL Government’s doubt and the Government of Indonesia failure to respond to it prove Coalition’s earlier scepticism about the objectiveness and impartiality of the Human Right Ad Hoc Court, since it was not established based of the state’s pure awareness and commitment to the protection and enforcement of Human Right in Indonesia territory. As a matter of fact, it was established due to both international and national harsh pressures.
2. Crown Witnesses (the Non-Self Incrimination Principle)
The General Prosecutor’s witnesses that have been heard were mostly those who at the same time stood as the convicted or suspects. Take as an example, the testimony of the convicted Timbul Silaen (former regional chief police of East Timor) in the case where Abelio Soares (former Governor of East Timor) was convicted. This was against Human Right and the prevailing principle of non-self incrimination which is arranged under article 168 sub article b of the Criminal Code of Procedure (KUHAP) and article 14 (3g) of the ICCPR. Article 14 (3g) of The International Covenant on Civil and Political Rights: 14 (3) In the determination of any criminal charge against him, everyone shall be entitled the following minimum guarantees in full equality: g. not to be copelled to testify againsts him self or to confess guilt. Indonesian Criminal Code of Procedure (KUHAP) article 168 sub article b: “Unless it is arranged otherwise by this law everyone shall not be heard and may resign from standing testimony: (b) the relatives of the convicted or others who were also convicted.
Besides, the Supreme Court jurisprudence in its decision Reg. No. 1174/Pid/1994 states “that judex facti has wrongly applied the examination testimonial law where the witnesses are the convicted in a fractioned case of the same conviction; it is against the Criminal Code of Procedure that respects human rights …”
3. The Principle of Justice
The prosecutor in a criminal case must be able to legally and convincingly prove the charge addressed to the convicted. In such situation, witness’ testimony is highly important in finding material truth. However, in the Human Right proceeding the prosecutor was unable to maximize his roles and functions as reflected in the quality of the proceeding, which was way too far from searching truth. The prosecutor’s statements were way too far from his own charge, inextensive and reflect reluctance to explore the real case in East Timor.
· In Indonesia practice, murder, maltreatment, rape or other criminal charges that is subject to five years sentence or more in prison, the convicted shall be detained. The same also applies in the practice of the international Customary Law for crimes against Human Right. In the East Timor Ad Hoc Court case, it has been a major question that the convicted of extraordinary crimes in Indonesia were still on the loose.
Based on the above fact, Human Right Court Monitoring Coalition would like to present its statements:
1. Request the Government of Indonesia to cooperate with the RDTL Attorney General and UN Secretary General in presenting victim witnesses from RDTL; and the Government of Indonesia must be able to convice them about both physical and mental protection.
2. Urge all legal apparatuses (judges, prosecutors, and security personnel) to ensure physical and mental security of all witnesses, particularly victim witnesses, from intimidation, terror, and violence by any party during the court examination. This kind of protection is a form of obligatory service that must be provided, pursuant to PP No. 2/2002 on the Procedure of Witness and Victim Protection in Violation against Human Right.
3. Request judges and prosecutors to stop the examination of witness who at the same time stands as the convicted in Human Right serious violation in East Timor form it is against the principle of self-incrimination and ICCPR (International Covenant on Civil and Political Rights).
4. Demand the prosecutor to be more serious in proving the charges.
5. Demand the judges to issue detention order to all convicted. Thank you for your kind attention and cooperation.
Contact person: Paulus R. Mahulette (0816 163 7446), Jhonson Panjaitan (0816 111 1902), Dewi Novirianti (0812 805 9348), Rita Olivia (0812 910 6781)
Jakarta, 12 June 2002
Paul Barber TAPOL, the Indonesia Human Rights Campaign, 25 Plovers Way, Alton Hampshire GU34 2JJ Tel/Fax: 01420 80153 Email: email@example.com Internet: www.gn.apc.org/tapol Defending victims of oppression in Indonesia, 1973-2001
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