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28 August 2014

Baucau District Court hears cases of aggravated murder, assault, sexual abuse of minor,property damage, manslaughters, misuse of authority and embezzlement in May 2014

ETLJB 28/08/2014 From the East Timor Judicial System Monitoring Program: Summary of the trial process at the Baucau District Court May 2014

Introduction

In May 2014 JSMP continued its monitoring of trials at the Baucau District Court. During this period JSMP monitored 26 cases from a total of 38 cases that were tried in the court. These 26 cases comprised 25 criminal cases and 1 civil case.

The criminal cases comprised 1 case of aggravated murder characterized as domestic violence, 1 case of negligent offences against physical integrity, 1 case of sexual abuse of a minor, 2 cases of property damage and making threats, 2 cases of manslaughter, 1 case of mistreatment of a spouse, 6 cases of simple offences against physical integrity, 7 cases of simple offences against physical integrity characterized as domestic violence, 1 case of minor property damage, 1 case of unlawful electoral canvassing, 1 case of serious offences against physical integrity and 1 case of misuse of authority and embezzlement. The civil case related to a land dispute.

This case summary indicates that all courts continue to deal with a high number of cases involving gender based violence.

From these 26 cases, 11 were decided by the court and the remaining 15 cases are still ongoing.

From the 11 cases decided by the court, the defendant in 1 case involving the mistreatment of a spouse was sentenced to 4 years 6 months in prison and was also ordered to pay compensation of US$300 to the victim.

JSMP really values this decision because in addition to handing down a prison sentence against the defendant, the court also ordered the defendant to pay compensation to the victim. This is another step forward in the justice system, especially regarding the application of the Law Against Domestic Violence. JSMP hopes that compensation in cases of domestic violence can be applied in all of the courts to provide restitution for the suffering and loss experienced by victims as the result of actions committed by defendants.

JSMP also observed that in the case of aggravated murder characterized as domestic violence, the defendant was sentenced to 18 years in prison. JSMP believes that this decision is proportional to the seriousness of the crime committed by the defendant.

The information below outlines the cases observed:

1.      Crime of aggravated murder characterized as domestic violence – Case No.0449/13.PDBAU

27 August 2014

Dili District Court hears infanticide, assault, theft, property damage and illegal importing cases in May 2014

ETLJB 27/08/2014 From the East Timor Judicial System Monitoring Program Case Summary Dili District Court May 2014

Introduction

In May 2014 JSMP continued its monitoring activities at the Dili District Court. JSMP monitored 16 criminal cases of the 97 cases that were before the court during this period. There were a total of 97 cases scheduled for trial, however several of the hearings were postponed, because the parties who had been summoned did not appear, or due to some other impediment. Due to limited resources, JSMP was only able to observe 16 of the 97 cases, which are described in detail below.   

These cases involved a range of crimes, namely 7 cases regarding simple offences against physical integrity characterized as domestic violence, 3 cases of simple offences against physical integrity, 2 cases of aggravated theft, 1 case of property damage, 1 case of illegal import and export of goods or merchandise, 1 case of rape and 1 case of infanticide.

From these 16 cases, 9 have been decided by the court and the other 7 cases are still ongoing.

The following information summaries the trials of each of these cases:

Dili District Court sentences defendant to 12 years in prison for case involving rape characterised as incest

ETLJB 27/08/2014 From the East Timor Judicial System Monitoring Program Press Release Dili District Court 21 August 2014 - On 19 August 2014 the Dili District Court conducted a hearing to announce its decision in a case involving the defendant ASE. The court sentenced the defendant to 12 years in prison after finding him guilty of committing rape against his niece in Ermera District. The court also applied preventative detention against the defendant whilst awaiting a decision carrying the full force of the law, in the event that an appeal is lodged against the decision of the court of first instance.

“This decision reflects the institutional accountability and sensitivity of the court in ensuring justice for the victim in accordance with the severity and nature of the case. However, JSMP encourages all parts of society to carry out collective efforts to prevent and reject the crime of incest in the family,” said the Executive Director of JSMP, Luis de Oliveira Sampaio.

Incest is a crime which deeply offends community values and should never be allowed for any reason. Incest is very damaging and influential on the physical and psychological development of the victim.

JSMP believes that the relevant State institutions must develop a comprehensive intervention strategy to prevent the crime of incest from becoming more prevalent in the community. This includes amending provisions in the Penal Code and a national action policy regarding the negative impact of incest and identifying the main causes of incest in order to develop an intervention strategy that is appropriate and contextual.

The court found the defendant committed the offence three times in 2008. These acts were committed against the victim after the defendant tied the arms and legs of the victim to her bed, removed the victim’s clothing and had sexual intercourse with the victim. The court also proved that the defendant had sexual intercourse with the victim who was under 17 years of age.

Then, in 2009 the defendant had sexual intercourse on two occasions with the victim, on one afternoon, when the parents of the victim were not at home.

The court considered that the facts were proven based on the admission of the defendant, the testimony of the victim and the examination record.

The public prosecutor charged the defendant with violating Article 287 of the Indonesian Penal Code on sexual relations with a person under the age of 15.

After the hearing to examine evidence the court amended Article 287 to Article 285 of the Indonesian Penal Code on rape and Article 172 of the Timor-Leste Penal Code on rape and Article 173(d) of the Timor-Leste the Penal Code on aggravation.

After evaluating the facts established during the trial the court found the defendant guilty of raping the victim on five occasions. Based on these facts, the court concluded this matter and sentenced the defendant to 12 years in prison in accordance with Article 285 of the Indonesian Penal Code, because the provisions in the Indonesian Penal Code were more favorable to the defendant.

Under the Timor-Leste Penal Code the cumulative prison sentence would have been 14 years in prison, however under the Indonesian Penal Code it was 12 years in prison. Therefore the court handed down a single sentence of 12 years in prison pursuant to the Indonesian Penal Code and in accordance with Article 3.3 of the Timor-Leste Penal Code.

The court did not order the defendant to pay compensation to the victim and explained that compensation was up to the family, to be resolved in accordance with family traditions.

JSMP believes that the court should not have relied on the family to resolve the issue of compensation for the victim. The court should have ordered compensation together with the prison sentence, if the court considered it necessary to provide compensation to the victim.

This case was registered as Case No. Case No. 37/14.TDDIL. The hearing to announce the decision was presided over by Antonino Gonçalves. The public prosecution service was represented by Reinato Bere Nahak and the defendant was represented by public defender Manuel Exposto.

Baucau District Court sentences defendant to 16 years and 6 months in prison for aggravated murder of his wife

ETLJB 27/08/2014 From the East Timor Judicial System Monitoring Program Press Release 22 August 2014 - On 21 August 2014 the Baucau District Court conducted a hearing to announce its decision concerning the defendant JXD and sentenced the defendant to 16 years and 6 months in prison. The court found the defendant guilty of murdering his wife on 01 January 2013 in Sagadate Village, Laga Sub-District, Baucau District.

The court proved the facts alleged by the public prosecutor that were corroborated by testimony given by the witness MD, who was the mother of the victim.

During the trial, MD testified that she saw the defendant stab the victim once in the stomach and twice in the chest. The witness saw the incident from approximately 25 meters away.

“All kinds of violence against women and children is increasing in all locations. These offences range from simple assault, serious assault, attempted murder, sexual abuse and rape, to murder, and this should not occur if each family member is aware that violence should not be used to try and solve differences that occur in the family sphere,” said the Executive Director of JSMP, Luis de Oliveira Sampaio.
JSMP believes that this decision is proportional to the actions of the defendant. However, JSMP hopes that the State understands  that violence against women is a serious problem that needs to be addressed at all levels, and that the State will develop a policy to break the cycle of violence within the family. The State has the authority to protect and ensure that all citizens are free from any form of violence. Women and children are specifically targeted within their own families.
JSMP hopes that this sentence can educate the community to avoid acts that take the life of another because the State recognizes and guarantees the right to life as set out in Article 29 (2) of the Constitution of the Democratic Republic of Timor-Leste.

Previously, the public prosecutor alleged that on 01 January 2013, at 8am, the defendant was at the home of his parents in law and was holding his child, and had an argument with the victim. The defendant wanted to take the child home, however the victim did not agree and told the defendant that their child had not yet had a bath.

Therefore, the defendant became angry and put down their child, took out a knife that he was carrying on his side, approached the victim and stabbed the victim once in the stomach and twice in the chest. The victim was taken to hospital however she could not be saved and the victim passed away on that very same day.

The public prosecutor charged the defendant with violating Article 138 of the Penal Code on homicide and Article 139 of the Penal Code on aggravated homicide, combined with Article 35 of the Law Against Domestic Violence.

During the examination of evidence the defendant admitted the acts he committed against the victim.

In his final recommendations the public prosecutor requested the court to sentence the defendant to 20 years in prison. This recommendation was based on the testimony and admission of the defendant that he murdered the victim. The public defender asked the court to hand down a fair and appropriate punishment against the defendant because he did not have a criminal background.

Judge Antonio Fonseca read out the decision of the court on behalf of the panel of judges presiding over this case. The public prosecution service was represented by Luis Hernanio Rangel da Cruz and the defendant was represented by public defender Juvinal Yanes.
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