05 November 2011

Dili District Court hands down suspended sentences in three cases of domestic violence



East Timor Legal News 5/11/2011 Source: JSMP Press Release 25 October 2011 - In September 2011 JSMP managed to monitor 16 hearings conducted at the Dili District Court.

From this total of 16, the court conducted two hearings in one particular case. Also, four of the hearings involved domestic violence.

JSMP managed to monitor the four hearings involving domestic violence, three of which were convened for the purpose of announcing a final decision.

In the first case of domestic violence (No. 133/C.Ord/2011/TDD) the defendant was sentenced to 6 months imprisonment that was suspended for one year and six months. In the second case of domestic violence (No. 155/C.Ord/2011/TDD) the defendant was also sentenced to 6 months imprisonment that was suspended for one year and six months. However, in the third case of domestic violence (No. 62/C.Ord/2011/TDD) the defendant was sentenced to 2 months imprisonment that was suspended for one year.

The decisions handed down by the Dili District Court in the three aforementioned cases were issued pursuant to Article 35 of the Law Against Domestic Violence as well as Article 145.1 of the Penal Code on simple offences against physical integrity that states that “Any person who causes harm to the body or health of another person is punishable with up to 3 years imprisonment or a fine”.

The announcement of the decision in Case No. 133/C.ord/2011/TDD involving domestic violence was presided over by Judge Rosa Brandão. The Public Prosecution Service was represented by Felismino Cardoso and the defendant was represented by the Public Defender Manuel Sarmento.

The announcement of the decision in Case No. 155/C.Ord/2011/TDD involving domestic violence was presided over by a panel of judges comprising Rosa Brandão, Antonio Fonseca, and Jose Gonçalves. The Public Prosecution Service was represented by Jose Ximenes and the defendant was represented by the Public Defender Manuel Sarmento.

The announcement of the decision in Case No. 62/C.Ord/2011/TDD involving domestic violence was presided over by Judge Rosa Brandão. The Public Prosecution Service was represented by Remizia de Fatima, and the defendant was represented by Jose Ximenes and the defendant was represented by the Public Defender Denize Lezarda (international).

The Executive Director of JSMP, Luis de Oliveira, said that although the court or the judges are entitled to use their own discretion to decide on the most appropriate sentence, JSMP urges the courts and lawyers to explain to the convicted person that the suspended sentence is a form of punishment that needs to observe, and this does not mean that the convicted person has been released/acquitted from the criminal act that he has committed.

If a convicted person commits a criminal act while serving the suspended sentence then automatically he will be arrested by the authorities and ordered to serve the original prison sentence handed down by the court as well as being tried for the additional crime committed.

Article 68.1 of the Penal Code on the suspension of execution of a prison sentence states that “Whenever the prison sentence applied does not exceed three years, the court may suspend execution thereof for a period to be set between one and five years, to be counted from the time the final decision was rendered”.

Article 68.1 of the Penal Code enables the court to apply a suspended sentence against a convicted person sentenced to prison for less than three years. Therefore, in the three hearings that were observed by JSMP at the Dili District Court, in accordance with the law, a suspended sentence had to be handed down because the punishment issued in each of the three aforementioned trials was less than three years imprisonment.

JSMP is proud of the fact that in one month the Dili District Court managed to issue sentences in three cases of domestic violence (based on the trials observed by JSMP), although the final decisions were in the form of suspended sentences.

This shows that the court has fulfilled its obligation to observe Law No.7/7/2010 Against Domestic Violence which was enacted in July 2010.  This law prescribes that domestic violence is a public crime and must be processed in accordance with the formal justice system.

JSMP believes that ‘public crime’ in cases of domestic violence means that crimes that occur in a family context, as well as those committed by one family member against another who are living as part of the same household, or between former spouses who no longer cohabitate, or against a family member who is economically dependent, are categorized as public crimes.[1]

In relation to this concept, JSMP believes that it is not necessary for a victim to make a report to the authorities, because any person who sees or hears an incident can report the matter to the competent authorities.

JSMP has observed that even with the existence of the Law Against Domestic Violence, cases involving domestic violence have continued to increase in the district courts, and the majority of victims are women.[2] These women tend to be wives who have been victimized by their own husbands; however this does not mean that women have never perpetrated domestic violence.[3]

Despite the fact that obstacles still remain, JSMP continues to urge the court actors to process all cases of domestic violence and to issue appropriate punishments in accordance with the severity and seriousness of each case.

JSMP also wishes to congratulate the court actors for their commitment to continue processing the aforementioned cases, even though each perpetrator was only given a suspended sentence of one year and six months.

JSMP believes that when perpetrators are punished properly, this will deter others from committing the prevalent crime of domestic violence.

[1] Law Against Domestic Violence, Article 2 on the concept of domestic violence and Article 3 regarding family.

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