29 September 2013
ETLJB 29 September 2013 - The East Timor Judicial System Monitoring Program has released the English translation of its report on observations of a trial in the Dili District Court concerning alleged crimes against humanity committed in 1999. The text of the translation follows.
In the trial of serious crimes allegedly committed by the AHI militia witnesses testify that they did not see events first hand
Between 17-19 September 2013 the Dili District Court continued its trial of crimes against humanity allegedly committed by 8 defendants (TM, AP, ASC, MC, JdA, JP, MdA and DP).This case allegedly occurred in 1999 in Aileu District.
The trial of serious crimes allegedly committed by the AHI Militia (Aileu Defenders of Integration) continued over three consecutive days to hear the testimony of witnesses.
During the trial of this case, the public prosecutor identified 144 witnesses. Based on JSMP monitoring, approximately 36 witnesses have been asked to give testimony before the court, however not one of these witnesses has direct knowledge of the events that occurred at that time.
Several other witnesses also testified that they did not know about the acts committed by the defendants because at that time they had taken refuge in the jungle to save themselves and their families.
The witnesses testified that it was true that the defendants present in court were members of the AHI Militia and were responsible and actively involved in this militia in 1999, with the support of the Indonesian Army and Police. However the witnesses testified that they did not witness first hand that the defendants were involved in the criminal acts of arson, murder and forced removal of the population to Atambua.
“Crimes against humanity are crimes that are massive and wide scale in nature, especially in relation to those who suffer as the result of such crimes, and those who lost their lives or their families. Therefore, JSMP urges the Office of the Public Prosecutor and the Office of the Public Defender to ensure that when identifying witnesses every effort is made to obtain witnesses who have direct knowledge about the events” said Luis de Oliveira Sampaio, Executive Director of JSMP.
This hearing was presided over by a panel of judges comprising José Maria de Araújo, Paulo Texeira (international), and Júlio Gantes (international) and the Public Prosecution Service was represented by José Luís Landim (international) and the Office of the Public Defender was represented by José da Silva.
The trial will continue on 30 September 2013 at 9am to examine testimony from more witnesses. Source: JSMP Press Release 24 September 2013 Edited by Warren L. Wright
Corruption trial involving the former Minister of Justice Lúcia Lobato and the right to a fair trial
ETLJB29 September 2013 - The East Timor Judicial System Monitoring Program has released the English translation of its analysis of the trial of the former Justice Minister Lucia Lobato on corruption charges on which she was found guilty and imprisoned for 5 years in 2012. The text of the translation follows.
Corruption is a very serious crime because it has a direct impact on the public interest, harms national development and is the largest obstacle that impedes social and economic development. Corruption results in widespread poverty because it results in losses to the State Budget and violates the civil and economic rights of every citizen.
Therefore when a person is charged with corruption there is always a protracted debate and strong reaction to this issue, especially when the case involves a high ranking state official who is supposed to be a role model for the country.
One such case has been observed by JSMP, which is an interesting case involving the former Minister of Justice of the Parliamentary Majority Alliance government. As this case has a massive impact on the public interest, JSMP believes that it is worthy of observation and deep analysis from the outset through to its conclusion. This includes a precise description of the related processes in their proper order, as well as correcting public perceptions about this case, and the examination of efforts and successful strategies pursued by the defense and prosecution, as well as the developing polemic about issues of ordinary appeals and extraordinary appeals, the issue of “habeas corpus”, the composition of judges at the Court of Appeal and Supreme Court, as well as JSMP’s opinion on this case.
This case stimulated widespread public debate when a member of the panel of judges was accused of being involved in a misuse of authority regarding the decision issued in response to a “habeas corpus” review that was requested by the team of public defenders to the Court of Appeal. Although in the end the allegation was still only an allegation (it became part of public discourse) or in other words it was merely a slinging match because no concrete steps were taken to follow up the matter or investigate the facts relating to this allegation.
Also, the involvement of the Office of the Public Defender did not escape the attention of the public because this institution was established to serve those who do not have sufficient economic means. The efforts of the public defenders, who used all of the available legal mechanisms and resources have been the subject of a separate debate in the public arena because such strategies and efforts are very rarely applied in cases that involve ordinary citizens.
JSMP believes that these issues have a direct link with the principles of a fair trial which are imposed on each legal institution (court) as well as Timor-Leste, which is a nation that adheres to the rule of law and is obliged to integrate, adhere and apply international standards as part of its national legal system in all cases brought before the courts to ensure justice.
In April 2012 the Dili District Court started the trial of a case involving the defendants Lúcia Maria Brandão Freitas Lobato and António de Araújo Freitas, who was the Head of the Department of Procurement in the Ministry of Justice.
The Dili District Court as the Court of First Instance decided this case and sentenced the defendant Lúcia Maria Brandão Freitas Lobato to 5 years imprisonment and acquitted the defendant António de Araújo from all charges.
After hearing the decision from the Court of First Instance, the parties, namely the Public Prosecutor and the team of public defenders representing the defendants, lodged appeals to the Court of Appeal. After evaluating and examining the request for an appeal lodged by each party the Court of Appeal confirmed the decision from the Court of First Instance and maintained the sentence of 5 years imprisonment against the defendant Lúcia Lobato. In addition, the Court of Appeal also sentenced the defendant António Freitas de Araújo to 5 years imprisonment and ordered him to pay a fine of US$ 52,250.
After hearing this decision the defense was unhappy and lodged an extraordinary appeal to the Supreme Court, of which the functions and duties are actually carried out by the Court of Appeal. In addition, the defense also lodged a request for “Habeas Corpus” in relation to the detention order issued against the defendant Lúcia Lobato that was later rejected by the Supreme Court.
The defense continued to pursue every avenue including detecting and alleging abnormalities and suspected misuse of authority involving a member of the panel of judges who ruled on the appeal lodged by the defense to the Court of Appeal. These facts were announced to the public via a press conference.
Substance of the charges made by the Public Prosecutor
In the first charge, heard in Case No. 580/C.Ord/2011/TDD, the Public Prosecutor alleged that the defendant Lúcia Lobato in her capacity as the Minister of Justice together with her husband Américo Lopes and the defendant Antonio Freitas, who was the President of the Bid Committee, colluded to award a tender to the WASUPA company for the provision of uniforms to prison guards without the knowledge of other members of the Bid Committee. The defendant also falsified the signature of the other members of the Bid Committee in order to award the tender to the WASUPA Company.
The second charge was heard in Case No. 622/C.Ord/2011/TDD, whereby the Public Prosecutor alleged that the defendants colluded to select the Zorro Construction Ltd Company as the winner of the tender for the construction of a Civil Registration Office in Lautem District because the Director of this company had a good relationship with the leaders of the Social Democrat Party (PSD), even though the Bid Committee did not recommend Zorro Construction Ltd as the winner of the tender.
The defendant Lúcia Lobato also selected other companies in the Districts of Aileu and Manufahi even though these companies submitted proposals that did not properly reflect the total estimated expenditure. A study carried out by the Architecture Civil Engineering Consultant Ltd Company (ARCVIL) was used as a reference by the Office of Public Works in 2007 and calculated that the total cost of these offices would be US $167,502.
The Public Prosecutor also alleged that the defendant Lúcia Lobato as the Minister of Justice decided to allocate a budget of US$ 200,000 for each office (Manatuto, Lospalos, Oecusse, Ermera, Aileu, Covalima, Baucau and Same) without consulting/seeking advice from the relevant directorate and ignored all of the existing technical studies, without going through any process and without a legitimate basis. These actions violated all the regulations issued by the government regarding procurement and the provision of goods. These actions also caused the State to lose US $67,745 from its budget.
In relation to these acts the Public Prosecutor charged the defendant Lúcia Lobato for violating Article 274 of the Penal Code on the crime of mismanagement as well as Article 301 of the Penal Code on aggravation, also for violating Article 297 of the Penal Code on abuse of power, and Article 299 of the Penal Code on the crime of economic involvement in business.
The Public Prosecutor also charged the defendant Antonio Freitas de Araújo with the crime of abuse of power and falsification of documents in accordance with Article 263 of the Indonesian Penal Code (or Article 304 of the Timor-Leste Penal Code) and the crime of intentional mismanagement in accordance with Article 274 of the Timor-Leste Penal Code.
The court summoned the defendants to attend a hearing on 14 March 2012, however the hearing did not take place because the National Parliament failed to remove the legal immunity of Lúcia Lobato as the Minister of Justice. On 20 March 2012 the National Parliament managed to pass Resolution No. 87/II in accordance with Article 113(1) of the Constitution and definitively removed the immunity of the defendant Lúcia Lobato from her position as Minister of Justice.
The trial took place between 24 – 27 April 2012, then continued between 23–25, 28 May 2012 and on 30 May 2012 the court heard final recommendations. It is estimated that the court heard testimony from 27 witnesses over nine days.
During the examination of evidence the witness Jose Belo, who is a journalist with the weekly newspaper Tempo Semanal, chose to remain silent in accordance with Article 126 of the Criminal Procedure Code.
Other witnesses appeared in their respective capacities, namely as owners of the companies, officials from the Ministry of Justice and members of the Bid Committee who were tasked to evaluate the bids for the aforementioned tender.
During the trial the defendant Lúcia Lobato and the defendant Antonio Freitas testified that they were not directly involved in logistical matters, the procurement of uniforms, calculating totals and other matters relating to the construction of the aforementioned offices.
The defendant Lúcia Lobato testified that she only signed the documents presented based on the defendant as the president of the Bid Committee. In addition, the defendant Luçia Lobato also testified that she chose the company that submitted the higher bid because she favored quality.
The defendant António Freitas explained that he put forward the names of the aforementioned companies because they were eligible to win the aforementioned tender.
On 30 May 2012 the public prosecutor made final recommendations to the court. In the final recommendations the public prosecutor maintained the substance of the original charges and requested for the court to sentence the defendant Luçia Lobato to 12 years imprisonment and the defendant Antonio Freitas de Araújo to 9 years imprisonment.
The public prosecutor also requested for the court to sentence the defendants to pay compensation to the State of US$ 67,745 as set out in Article 72 (1,2,3,4) of the Criminal Procedure Code and Article 103 of the Penal Code.
Decision of the Court of First Instance
On 8 June 2012 the Dili District Court read out its decision against the defendant Lúcia Lobato and the defendant António Freitas. In this decision the defendant Lúcia Lobato was sentenced to 5 years imprisonment for the crime of economic involvement in business and was ordered to pay compensation of US$ 4,350 (to be shared with the defendant Antonio Freitas de Araújo), and ordered to pay court costs of US $ 300 and she was acquitted from the other charges (mismanagement and abuse of power). Meanwhile, the defendant Antonio Freitas de Araújo was acquitted from all charges, however he was ordered to pay compensation of US $ 4,350 to be shared with the defendant Luçia Lobato as mentioned above.
Ordinary appeal process
On 17 July 2012 the public prosecutor and public defender both lodged an appeal to the Court of Appeal after accepting the written decision. Then approximately five months later on 12 December 2012 the Court of Appeal issued a decision on the appeal lodged by the parties with the Court of Appeal. The Court of Appeal as the court of second instance decided to confirm the decision issued by the court of first instance against the defendant Luçia Lobato.
However, the defendant Antonio Freitas who had previously been acquitted at the level of appeal was sentenced by the Court of Appeal to 5 years imprisonment after being found guilty of committing the crime of mismanagement in relation to the tender for the construction of offices in 8 districts and was ordered to pay compensation of US$ 50,000 (including the compensation that was ordered by the Court of First Instance).
After accepting the decision of the Court of Appeal, the Public Prosecutor immediately lodged a request to detain the defendant/convicted person Luçia Lobato to ensure that the defendant did not abscond overseas. On 28 December 20012 the police arrested the defendant (the convicted person) Luçia Lobato and placed her in the cells at the Caicoli Police Station. Then on 29 December 2012 the Dili District Court conducted a hearing to decide on the request from the public prosecutor.
The court decided to apply Proof of Identity and Residence measures in accordance with Article 186 of the Criminal Procedure Code, including confiscating her passport and ordering the Department of Immigration to cancel any trips overseas.
Extraordinary appeal process
ETLJB 29 September 2013 - The East Timor Judicial System Monitoring Program has released the English translation of its report on a case of incest heard in the Suai District Court. The text of the translation follows.
The public prosecutor alleged that the defendant committed the crime of aggravated rape 10 times against the victim in July 2010. At midnight the defendant would sneak into the room of the victim and threaten and force the victim to have sexual intercourse and this continued until the victim became pregnant.
“JSMP believes that incest is a very serious crime because the defendant is a close family member of the victim. Therefore, JSMP requests for the public prosecutor to ensure that every charge considers the elements of the crime because this was a continuous crime and it should be linked to Article 41 of the Penal Code, because the defendant committed the crime 10 times on different nights”, said Luis de Oliveira Sampaio, the Executive Director of JSMP.
JSMP observed that the crime of incest continues to be widespread in Timor-Leste. JSMP believes that the number of reported cases are only a small reflection of the prevalence of incest in Timor-Leste. Therefore JSMP urges the State to take action and concrete measures to stop the crime of incest in Timor-Leste and protect those who have been victimized.
Previously on 18 September 2013 the Baucau District Court sentenced a defendant to 18 years jail in a case of incest. JSMP believes that this sentence is roughly proportionate to the act committed, if compared with this case.
JSMP urges the judicial actors to carefully consider all of the elements of this crime so that the outcome reflects the seriousness of the crime and provides a sense of justice in cases like this.
The public prosecutor charged the defendant for violating Article 172 of the Penal Code regarding rape and Article 172 (d) of the Penal Code on aggravation, as well as Article 35 of the Law Against Domestic Violence.
During the trial the defendant admitted that all of the charges were correct and the victim also confirmed that the evidence was true.
This case was registered as Case No:154/2013/TDS. The hearing to announce the decision was presided over by a panel of judges who were represented by Costancio Barros Basmery. The Public Prosecution service was represented by Felismino Araújo and Benvinda do Rosario. The defendant was represented by Marçal Mascarenhas from the Office of the Public Defender. Trencio Abel was the court clerk in this case. Source: JSMP Press Release 25 September 2013 Edited by Warren L. Wright
ETLJB 27 September 2013 - Fundasaun Mahein has released the English translation of its report and recommendations on international defence cooperation. The text of the translation follows.
This report examines defence cooperation efforts between Timor-Leste and neighboring countries such as Australia and Indonesia, countries in the ASEAN region, countries in the Community of Portuguese Language Countries (CPLC), and other countries in the Asia Pacific region.
Timor-Leste has active partnerships with countries in these areas and hopes to strengthen cooperation in F-FDTL related activities through bilateral channels, to continually help promote the F-FDTL's visibility and presence in the international community. However, it should be recognized that defence cooperation has been achieved along with challenges.
Defense partnerships among ASEAN countries and other economic-partnership countries in the ASEAN and Asia Pacific region have not yet been officially recognized through the signing of a Memorandum of Understanding (MoU). To date, they have only been agreed upon between military institutions. This has concerned the F-FDTL's leadership, who have requested that the government consider legal agreements to recognise Timor Leste's defence cooperation with foreign countries.
The legal agreements (MoU) will decide the form of cooperation and guarantee all activities that are to be conducted by Timor-Leste and partnership countries. Though certain progress has already been achieved in defence cooperation, this legal agreement will provide official recognition and legitimacy to these activities.
1. Recommend to the government to continue strengthening bilateral cooperation with countries in the ASEAN region, Asia Pacific region and countries in the Community of Portuguese Language Countries (CPLC) in order to further develop the F-FDTL. The government should create a clearly defined F-FDTL advanced training policy in order to better respond to global threats in the ASEAN and Asia Pacific region.
2. Recommend to the government to review the Status of Foces Agreement (SOFA) accord between Timor-Leste and the United States, which includes approving the signing of an MoU by the National Parliament.
3. Recommend to the government to change from soft cooperation to hard cooperation, specifically with regard to the military's strategy to increase the F-FDTL capacity to equal the military capacity of other countries in the ASEAN and Asia Pacific region. Source: FM Press Release 27/09/2013 Edited by Warren L. Wright
ETLJB 29 September 2013 - On Thursday, September 26th 2013, the Government met extraordinarily, in the Council of Ministers conference room, at the Government Palace in Dili, and approved:
1. Tax Package
After review and discussion of the values of the percentage of budget execution versus Fiscal Envelope, the Council of Ministers approved the amount of fifteen hundred million U.S. dollars for the State Budget (OGE) for the financial year of 2014.
The Draft Law for the State Budget for the financial year of 2014 will be delivered to the National Parliament in the month of October, after approved by the Council of Ministers. The Tax Package for next year was determined by taking into account four key factors: Strategic Development Plan (SDP) and the Government Programme, Budget Execution, Inflation, and Fiscal Sustainability.
2. Support to the victims of fires in Portugal
The Government donated USD $ 1,000,000 (one million dollars) to Portugal to help the country cope with the damage caused by the numerous fires, especially in the districts of Porto, Braga and Viseu. In the first half of September there were over three thousand fires across the country that destroyed more than 13,000 hectares, causing casualties and substantial damage, including houses. The average area burned and number of fires this year is higher than in the last ten years.
The situation in Portugal, due to fires, remains extremely critical and involves hundreds of fire fighters and thousands of people struggle daily to control the devastating effects of fires. Despite their efforts, the loss of lives and property in our brother country assumed unprecedented proportions affecting thousands of people in hundreds of communities.
The Council of Ministers also analysed:
1. Internal Security of the Country
Following the incident earlier this week in Dili, which killed one Timorese and left three others injured, the Prime Minister, the Secretary of State for Security and the Vice Prime Minister presented to the Council of Ministers a point of situation on the measures that are being taken to resolve this incident and ensure timely maintenance of internal security of the country. Source: Presidency of Council of Ministers V Constitutional Government Dili 26/09/2013 Press Release Edited by Warren L. Wright
02 September 2013
22 Domestic violence cases in Timor-Leste in July 2013 include 13 assaults, 2 rapes, 2 aggravated rapes, 2 sexual abuses of a minor, 1 sexual assault, 1 attempted rape, 1 assault
ETLJB 02 September 2013 - The East Timor Judicial System Monitoring Program has released the English translation of its Women's Justice Unit monitoring of cases involving gender based violence in the Dili, Baucau and Suai District Courts. The translation of the monitoring report follows.
In July 2013 the Women’s Justice Unit (WJU) conducted further monitoring of cases involving gender based violence in three jurisdictions, namely the Dili, Baucau and Suai district courts.
In relation to this monitoring period JSMP observed 22 cases. 8 cases were tried at the Dili District Court, 6 cases at the Suai District Court and the other 8 cases at the Baucau District Court.
From these 22 cases, 13 involved simple offences against physical integrity characterized as domestic violence, 2 cases of rape, 2 cases of aggravated rape, 2 cases of sexual abuse of a minor, 1 case of sexual assault, 1 case of attempted rape and 1 case of maltreatment against a spouse.
In most of these cases prison sentences were handed down, however they were suspended sentences, except in 2 cases of incest where the two courts court handed down a prison sentence of 16 and 18 years respectively. In several cases fines and admonishments were handed down. Nevertheless, in two cases involving the sexual abuse of a minor the defendants were acquitted because of a lack of evidence.
JSMP agrees that the court can only imprison a person if the elements of a crime have been proven in accordance with the law and the discretion of the judge. However, JSMP also encourages the courts to use more sensitive approaches to handling cases involving minors, so that the minors feel comfortable and safe based on their age and capacity in order to be involved in, and to understand the processes taking place.
JSMP observed a case of sexual abuse against a minor registered as Case No. 178//2012/TDDIL at the Dili District Court, whereby it appeared that the court did not display a sufficient degree of care to use the available mechanisms to obtain evidence in the aforementioned case. In the aforementioned case the court applied the ‘confrontation’ or ‘cross-examination’ approach regarding the testimony of the underage victim and the defendant who was the biological father of the victim. JSMP believes that this approach and technique did not ensure that the victim was secure and comfortable, specifically relating to the age and the psychological capacity of the child to enable the child to avoid feeling under pressure when speaking before the court.
JSMP hopes that in the future the court will be more sensitive in handling similar circumstances so that victims who are minors feel safer when testifying before the court.
The following information summarizes each of the cases tried by the courts:
01 September 2013
ETLJB 01 September 2013 - A foreigner has been assautled by an unknown group of people in the Dili suburb of Pantai Kelapa.
Media outlet Independente reported on 27/08/2013 that the attack occurred on Saturday, 24/08/2013 and the victim sustained several injuries. The victim reported the attack to the police who are undertaking an investigation.
Independente also reported that the victim has appealed to the police to conduct patrols in the area every night and that foreingers were now fearful for their safety when walking at night. *Unknown group assault a foreign national
Source: Independente 27 August 2013 Edited by Warren L. Wright
ETLJB 01 September 2013 - The East Timor Judicial System Monitoring Program has released the English translation of its report on monitoring of proceedings in the Oecusse District Court During the third week of June 2013. The text of the translation follows.
Case Summary June 2013
During the third week of June 2013, namely between the 17-21 June 2013, JSMP observed 5 cases at the Oecusse District Court. These five cases involved simple offences against physical integrity characterized as Domestic Violence. From the 5 cases that were scheduled, 4 cases were tried by the court and 1 case was adjourned.
From the 4 cases tried by the court, 2 cases were settled by the court with the issuance of fines totaling $ 15 and $ 90 respectively. The defendant in one case was acquitted and in the other case the defendant was given a suspended prison sentence.
This Case Summary is quite short because JSMP was only able to visit the court for one week.
ETLJB 1 September 2013 - Prime Minister Xanana Gusmao said his Government members had declared their assets in the Court of Appeals last year.
According to an English translation of a report in Diario Nacional on 28/09/2013, PM Gusmao stated that “The Government, since the Parliamentary Majority Alliance (AMP) Government was established, had required government membres to present assets [to the Court of Appeals register]."
Xanana was referring to the recent civil society organisation’s call asking the Government members to declare their assets. He also confirmed that his government was pressuring all public officials to declare their assets and said that the Parliament members could also declare their assets but that the Parliament was an independent body [that could not be directed by the government to force members of Parliament to declare their assets].
Radio Timor-Leste also reported on 28/08 that the declaration of assets by government members to the Court of Appeals was good way to strengthen transparency and accountability in the country. “I think all the Government officials to declare their assets in the court is to guarantee accountability and transparency in the country as our people want to know our assets before our mandate ends,” PM Xanana said. Source: TLMDC Diario Nacional 28/08/2013 Radio Timor-Leste 28/08/2013 Edited by Warren L. Wright
The commemoration of the historical day of the Armed Forces for the National Liberation of Timor-Leste occurred throughout the nation as the people paid homage to the heroes that defended Timor-Leste so that it could be independent.
Three major celebrations took place in Betano in the district of Manufahi; the Celebration of the 38th Anniversary, the Ceremony of Demobilization and Recognition of the Combatants of the Armed Resistance and the Inauguration of the Betano Power plant.
The President of the Republic, H.E. Taur Matan Ruak, the Prime Minister, H.E. Kay Rala Xanana Gusmao, President of the National Parliament, H.E. Vicente Guterres, members of National Parliament, President of the Court of Appeal, Commander in Chief of the F-FDTL, members of the Diplomatic Corps and many distinguished national and international guests joined with the F-FDTL, PNTL, local government, local authorities and the people of the Manufahi district on this important occasion.
The state of Timor-Leste has a program to recognise, demobilize and support former National Liberation Combatants. This ceremony held in Betano was the Second Demobilization, the first having occurred in 2011. In line with the Decree Law No 37/2011 Ceremonies will be ongoing, taking place in a phased manner with priority given to those with more years of participation in the struggle for liberation.
In Betano 219 combatants were honoured and demobilised in an “official, public and solemn ceremony” that included the presentations of uniforms and bivouacs and the conferring of insignias of rank, commemorative medals and a diploma of honour.
The President of the Republic in his address saluted those in all the resistance fronts, Armed, Clandestine and Diplomatic, “who never stopped working towards building a new country”.
He thanked combatants for “their dedication to the struggle and their resolve to pursue the ideals of freedom and prosperity of the Nation” and noted that the Timorese People must now “show the same determination today in fighting for the development of our country, as we did during our liberation struggle.”
After the completion of the Demobilization Ceremony, which included a parade, lunch and harnessing of the flag, the ceremony of Inauguration of Central Electric Betano began. The Betano plant is the second but most powerful of two new power plants that are a foundation of the National Electrification Project. Betano power station is set to produce 136 MW of electricity, whilst the station in Hera has capacity to produce 120 MW. ENDS Source: Government of East Timor Media Release 29 August 2013 Edited by Warren L. Wright