21 January 2018

JSMP Case Summary The Suai District Court November 2017

JUDICIAL SYSTEM MONITORING PROGRAMME PROGRAMA MONITORIZASAUN BA SISTEMA JUDISIÁRIU Case Summary The Suai District Court November 2017

Affirmation: The following case summaries set out the facts and the proceedings of cases before the court based on JSMP's independent monitoring, and the testimony given by the parties before the court. This information does not reflect the opinions of JSMP as an institution.

JSMP strongly condemns all forms of violence, especially against women and vulnerable persons.

JSMP maintains that there is no justification for violence against women.

A.      Summary of the trial process at the Suai District Court

B.     Short descriptions of these cases

1.      Crime of Rape

Case Number                          : 0124/16.PDSUA

Composition of the Court       : Panel

Judges                                     : Alvaro Maria Freitas, Argentino Luisa Nunes and Benjamin Barros

Prosecutor                               : Napoleão Soares da Silva

Defence                                   : Sergio Gusmão Lobo da Silva (private lawyer)

Type of Penalty                       : Acquitted

On 6 November 2017 the Suai District Court conducted a hearing to announce its decision in a case of rape involving the defendant MGM who allegedly committed the offence against the victim in Covalima District.

Charges of the Public Prosecutor

The public prosecutor alleged that on 1 May 2015 at approximately 8am the defendant purchased some goods in a shop where the victim was working. In addition to purchasing goods, the defendant also asked the victim for her phone number. The victim gave her phone number to the defendant but the victim asked the defendant not to call her.

On the same day at approximately 6pm when the victim was leaving work the defendant rang the victim and asked if he could pick the victim up and take her home. The victim said it would not be necessary because her younger brother would pick her up. The defendant insisted that he would pick the victim up and the victim agreed. The defendant immediately picked the victim up but did not take her home. The victim asked the defendant why he was not taking her home. The defendant responded “the two of us can just cruise around”.

When they arrived in a certain neighbourhood the defendant stopped his motorcycle and grabbed both of the victim's arms and dragged her into a plantation. In the plantation the defendant used one of his hands to hold both of the victim's arms and used his other hand to remove the victim's underpants. The defendant laid the victim on the ground and had sexual intercourse with the victim. After this the defendant dropped the victim at her address and never contacted her.

The public prosecutor alleged that the defendant violated Article 172 of the Penal Code on rape that carries a maximum penalty of 5-15 years in prison.

Presentation of evidence

During the trial the defendant acknowledged that the sexual relations occurred but with the consent of the victim. In addition the defendant stated that they had a romantic relationship for 4 (four) months.

Meanwhile the victim confirmed the defendant's statement that the sexual relationship occurred because they both consented and not because the defendant used force. As a result of this relationship in November 2015 the victim became pregnant. The victim also stated that she told her mother that the defendant was the father and they resolved the issue in accordance with East Timorese custom.

During the acquittal the defendant acknowledged that he was the father. The defendant and his family also gave US$ 600, 2 sacks of rice and 1 large pig to the victim and her family and promised to give alimony of US$25 every month for the child. The two families agree to the request of the defendant.

Final recommendations

The public prosecutor stated that even though the defendant denied forcing the victim and stated that the sexual relations were based on the mutual consent of the defendant and victim, the public prosecutor maintained the charges and requested for the court to convict the defendant.

The defence stated that the defendant acknowledged that he had sexual relations with the victim but based on the consent of the two parties. Also, this matter was resolved in accordance with East Timorese culture and therefore the defence requested for the court to acquit the defendant from the charges. 

Decision

After assessing all of the facts the Court concluded that the defendant and victim had sexual intercourse based on mutual consent and the matter has been resolved in accordance with East Timorese custom. Therefore the court acquitted the defendant from the charges of the public prosecutor but ordered the defendant to pay court costs of US$25.

2.      Crime of simple offences against physical integrity

14 January 2018

JSMP - Sumáriu Kazu Tribunál Distritál Dili Periódu Novembru 2017

JUDICIAL SYSTEM MONITORING PROGRAMME
PROGRAMA MONITORIZASAUN SISTEMA JUDISIÁRIU

Sumáriu Kazu Tribunál Distritál Dili Periódu Novembru 2017

 Afirmasaun: Sumáriu Kazu tuirmai ne’e deskreve faktu sira no prosesu iha Tribunál tuir JSMP nia monitorizasaun independente, no deklarasaun ne’ebé parte sira fó iha Tribunál nia laran. Informasaun ne’e la reprezenta JSMP nia hanoin hanesan instituisaun ida.

 JSMP kondena maka’as forma violénsia hotu-hotu, liuliu hasoru feto no ema vulneravel. JSMP afirma laiha justifikasaun bá violénsia hasoru feto.



A. Sumáriu prosesu julgamentu kazu iha Tribunál Distritál Dili

Totál kazu ne’ebé JSMP monitoriza : 31

B Deskripsaun sumáriu bá desizaun kazu sira

 1.  Krime ofensa bá integridade fízika simples ho natureza violénsia doméstika

Nú. Prosesu                                       : 0012/17.PDIDIL
Kompozisaun Tribunál            : Singulár
Juis                                          : Dr. Ivan P. Antonino
Prokuradór                              : Dr. Bartolomeu de Araujo
Defeza                                     : Dr. Cancio  Xavier
Tipu pena                                : Pena multa US$30.00

Iha 06 Novembru 2017, Tribunál Distritál Dili prezide leitura sentesa bá krime ofensa bá integridade fízika simples ho natureza violénsia doméstika ne’ebé envolve arguida OdS hasoru nia laen, iha Distritu Dili.

Akuzasaun Prokuradór

16 December 2017

JSMP: Application of fines in cases characterised as domestic violence should consider the requirements of Article 38 of the Law Against Domestic Violence

JUDICIAL SYSTEM MONITORING PROGRAMME PROGRAMA MONITORIZASAUN BA SISTEMA JUDISIÁRIU Press Release 30 November 2017

The application of fines in cases characterized as domestic violence should consider the requirements of Article 38 of the Law Against Domestic Violence

The application of fines in cases characterized as domestic violence should consider the requirements set out in Article 38 of the Law Against Domestic Violence (LADV) as specific provisions related to crimes of domestic violence.

“The court must ensure that decisions in cases of domestic violence comply with the articles of the Law Against Domestic Violence and are aimed at deterring domestic violence in the future,” said the Director Executive of JSMP, Luis de Oliveira Sampaio.

In some cases the courts have the option of imposing a fine as the main penalty pursuant to Article 75 of the Penal Code. However in cases involving domestic violence, the application of a fine must consider the requirements of Article 38 of the Law Against Domestic Violence.

This is important to ensure that the courts comply with the provisions in the applicable law and ensure that court decisions have the ability to prevent other crimes in the future and to ensure the well being of society.

Article 38 of the Law Against Domestic Violence on choice and determination of the sentence states that:

(1) The court may substitute the penalty of imprisonment with a penalty of a fine provided the prerequisites provided for in Article 67 of the Penal Code have been met:

·         the security of the victim has been guaranteed,

·         the perpetrator agrees to undergo treatment or follow-up support services for the victim; and

·         such a measure would benefit the preservation of the family unity.

(2) The defendant may further be sentenced to an additional penalty prohibiting contact with the victim for a maximum period of 3 years whenever it is considered that the application of the principal penalty is insufficient to prevent the repetition of similar acts.

JSMP has observed that in cases of domestic violence where the courts have applied a fine, the courts have not adhered to the requirements set out in Article 38 of the Law Against Domestic Violence. In the current context Timor-Leste does not yet have the conditions to direct defendants “to undergo treatment or follow-up support services for the victim”.

JSMP believes that to date the courts have failed to identify these conditions before deciding to apply a fine against defendants in cases of domestic violence. Therefore the fines that have been imposed by the courts against defendants in cases of domestic violence have not implemented Article 38 of the Law Against Domestic Violence because they have not adhered to the requirements set out in the law.

The Law Against Domestic Violence emphasises the importance of providing protection and security to victims and the relevant circumstances for prevention. Therefore, the courts also need to thoroughly assess the psychological and social circumstances of victims before making a decision and applying the relevant penalty to ensure that the penalty/sentence reflects the needs of the victim.

The victim needs to feel comfortable and safe to continue living together with the defendant/convicted person and the defendant (the convicted person) must promise to the court not to repeat his actions and the defendant needs to fulfill this promise. If the court considers that a fine is the best option, the court needs to comply with the conditions set out in Article 38 of the Law Against Domestic Violence.

JSMP has outlined its concern in its report entitled 'The Application of Alternative Sentences in cases of domestic violence at the Oecusse District Court-2015[1]' acknowledging that the trial process and sentencing can have different objectives. These include: to ensure the safety of victims; to punish perpetrators; to deter perpetrators from committing similar acts in the future; to deter the community in general from criminal acts; and facilitate rehabilitation and reintegration of perpetrators in the community.

These sentencing principles need to act as guidelines for the courts when they make decisions, and need to be clearly explained to the defendant and the victim. In addition, the Penal Code sets out specific prerequisites for courts when imposing a range of sentences. In particular, when a court decides to substitute a prison sentence with a suspension or fine in a case involving domestic violence, it is important to examine the sentencing principles, specific prerequisites in the Law Against Domestic Violence and the unique circumstances of each case.

[1]http://jsmp.tl/wp-content/uploads/2012/05/FINAL_JSMP_Sentensa-alternativa_TDO_Nov-20151.pdf

01 December 2017

Speech by President Lu-Olo on the Celebration of the 42nd Anniversary of the Proclamation of Independence

Suai, 28 November 2017

Excellencies,

Mr Aniceto Guterres, President of the National Parliament
Dr. Deolindo dos Santos, President of the Court of Appeal
Mr Prime Minister, Dr Mari Alkatiri, living pioneer of our Republic
Members of all bodies of sovereignty Most Reverend Bishops of Timor-Leste Representatives of all religious denominations present
Members of the Diplomatic and Consular Corps Distinguished guests
Beloved people of Timor-Leste

On this joyous occasion, when we  as a free and sovereign people  proudly celebrate the 42nd anniversary of the Proclamation of Independence, I first salute all sons and daughters of Timor-Leste, from Oecusse to the eastern end, from the southern coast to the northern coast and Ataúro. I salute also all our brothers and sisters who live, work, and study in faraway lands.

Independence is an achievement of which al of us, as citizens of this country, are proud and my thoughts are with all brothers and sisters  throughout the country and around the world.

I bow my head in memory of the heroes and martyrs of 1975 and those who sacrificed themselves, gave their lives and suffered during the 24 years of the struggle. I bow my head in memory of the beloved Nicolau Lobato, Francisco Xavier do Amaral, Nino Konis Santana, and the entire leadership of the struggle. I salute the greatness of character of all leaders of 1975, including my dear brothers Mari Alkatiri and José Ramos-Horta, who God willed to remain by our side, helping us guide and drive the country forward.

30 November 2017

Official Opening of WAP Art Gallery (Women Art Power) in The Asia Foundation

WAP (Women Art Power) Art Gallery, with its first Exhibition “MEMORIES”, on Thursday 30 November 2017, in The Asia Foundation

3 pm - Discussion Series at the Asia Foundation Conference Room
- H. E. Lurdes Bessa, the Vice-Minister for Education and Culture about the subject: Art, Culture and education.
- Introduction to the new Magazine PAW “Power Art Women”
- Discussion on the establishment of a Women Artists Association “AMA”

5:30 pm - Official Opening Reception of the Art gallery with the Exhibition "MEMORIES"
Speech and Ribbon Cutting Ceremony by H.E. José Ramos-Horta, Peace Nobel Prize Laureate

Woman’s Art Power - WAP is the new cultural program from KONSOLIDARTE.

This new artistic initiative, carried out by feminine elements only from different performative arts, aims to consolidate a passage through the past. Aware of the insurmountability of the space-time gap. Nine artists seek a reunion with memory. The project of rescuing the memory is a work of recreating a subjectivity, re-arrange residues of past experiences that are thus repositioned in the present. Memory is a process writing that inscribes the subject in the order of existence. A mnemonic language does not print what it captures. She thinks, composes and reproduces a record that is, forever, in becoming. More than an archive of recognition, a memory produces a mirage, an illusion of a possible truth. Memory traces should be provided as part of a cultural production. Attached to a chain of meanings, a memory doesn’t ensure the adaptation to reality, but a reproduction of a social pattern. It is an act of continuous and endless creation. What is truly important to the subject are the more intense memories. A memory preserves in itself and for itself, in a writing whose characters are indecipherable.

Nourished by a vital energy, the recording of traces from past experiences is instituted as a desiring project. In an incessant search for fulfillment, the energy of memory trails the paths of a forever insatiable desire. Faced with the impossibility of an encounter with the past, rests the desire of a potential reconciliation with history, memory and with its own life.
Maria José Barbosa, UNTL Teacher
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