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



Case Number                          : 0100/16.PDSUA

Composition of the Court       : Single Judge

Judge                                       : Florensia Freitas

Prosecutor                               : Napoleão Soares da Silva 

Public Defender                      : Fransisco Caetano Martins

Type of Penalty                       : Withdrawal of complaint

On 7 June 2017 the Suai District Court announced its decision in a case of simple offences against physical integrity involving the defendant NdC (police agent) who allegedly committed the offence against the victim JT in Covalima District.

Charges of the Public Prosecutor

The public prosecutor alleged that on 19 July 2016 at 11.00am the victim killed a bull because it ate his corn on his farm. After killing the bull the victim told the owner (BK) so they could resolve the matter. Therefore the Village Chief of Suai-Loro (AdC) and the defendant went to the home of BAK to resolve the problem.



When the victim and the owner of the bull were discussing how compensation could be given for the corn eaten and damaged by the bull the defendant suddenly slapped the victim across the face and he was wearing a ring when he did so. These acts caused the victim to suffer bleeding and injury and swelling to his mouth and forehead and the victim became dizzy.



The public prosecutor alleged that the defendant violated Article 145 of the Penal Code on simple offences against physical integrity that carries a maximum penalty of three years in prison or a fine.



Presentation of evidence

Before progressing to the presentation of evidence, pursuant to Article 266 of the Criminal Procedure Code on attempted conciliation, the judge may seek to reach conciliation between the defendant and victim.



During this attempted conciliation, the defendant apologised to the victim, regretted his actions and promised not to repeat such acts in the future. The victim forgave the defendant and withdrew the complaint against the defendant.



Final recommendations

After hearing about the conciliation between the two parties, the prosecution and defence accepted the amicable agreement between the two parties and requested for the court to settle this process.



Decision

Based on the request of the victim to withdraw the case and the amicable agreement between the parties, the court decided to validate the settlement.



3. Crime of making threats

Case Number                          : 0018/16.BBCLC

Composition of the Court       : Single Judge

Judge                                       : Florensia Freitas

Prosecutor                               : João Marques

Public Defender                      : Manuel Amaral

Type of Penalty                       : Withdrawal of complaint



On 16 November 2017 the Suai District Court conducted a trial to attempt conciliation in a case of threats involving the defendant AS who allegedly committed the offence against the victim (former wife) AS in Covalima District.



Charges of the Public Prosecutor

The public prosecutor alleged that on 8 August 2016 at approximately 4.30pm, the defendant called out to their children to go with the defendant to Lospalos. However, when the defendant called out the children ran away.  Therefore the victim told the defendant “why do the children run away when they see you, because for seven years you have never looked after them”. Upon hearing the victim's words the defendant responded with “you can't go out, if you go out, you will die”.



The victim felt afraid after hearing the victim's words and she felt uneasy and couldn't go anywhere.



The public prosecutor alleged that the defendant violated Article 157 of the Penal Code on making threats that carries a maximum penalty of 1 year in prison or a fine.



Presentation of evidence

Before progressing to the presentation of evidence, pursuant to Article 266 of the Criminal Procedure Code on attempted conciliation, the judge may seek to reach conciliation between the defendant and victim.



During this attempted conciliation, the defendant apologised to the victim, regretted his actions and promised not to repeat such acts in the future. The victim forgave the defendant and withdrew the complaint against the defendant.



Final recommendations

After hearing about the conciliation between the two parties, the prosecution and defence accepted the amicable agreement between the two parties and requested for the court to settle this process.



Decision

Based on the request of the victim to withdraw the case and the amicable agreement between the parties, the court decided to validate the settlement.



4. Crime of failure to meet obligation to provide alimony and disobedience

Case Number                            : 0005/17.PDSUA

Composition of the Court        : Single Judge

Judge                                        : Samuel da Costa Pacheco

Prosecutor                                 : Napoleão Soares da Silva

Public Defender                       : Manuel Amaral 

Type of Penalty                        : Withdrawal of complaint



On 22 November 2017 the Suai District Court attempted conciliation in a case of failure to meet obligation to provide alimony and disobedience involving the defendant JA who was a member of PNTL, against his 3 children who were represented by the former wife of the defendant in Covalima District.



Charges of the Public Prosecutor

The public prosecutor alleged that the defendant and the victim have separated and they have three children. The defendant married another woman and the victim also married another man. Prior to the victim lodging a complaint against the defendant regarding his failure to meet obligation to provide alimony to his three children, on 23 June 2016 the Court decided to order the defendant to provide alimony to their 3 children in the form of US$75.00 every month.



On 11 July 2016 the defendant complied with the obligation to provide alimony by paying US$100 for his children. On 25 August 2016 the defendant again complied and gave US$ 50 to his children, but after August 2016 the defendant no longer complied with his obligations towards his children based on the decision of the court.



The public prosecutor alleged that the defendant violated Article 225 of the Penal Code on failure to meet obligation to provide alimony that carries a penalty of up to 3 years in prison or a fine and also violated Article 244 (1) of the Penal Code on the crime of disobedience that carries a prison sentence of up to 3 years or a fine.



Presentation of evidence

Before progressing to the presentation of evidence, pursuant to Article 266 of the Criminal Procedure Code on attempted conciliation, the judge may seek to reach conciliation between the defendant and victim.



During this attempted conciliation the defendant stated that he was prepared to comply with his obligation and would provide US$75 every month for his three young children. The victim agreed with this request and requested for the court to validate this settlement.



Final recommendations

The prosecution and defence accepted the amicable agreement between the two parties and requested for the court to validate the settlement and the request to withdraw the complaint.



Decision

Based on the request of the victim to withdraw the case and the amicable agreement between the parties, the court decided to validate the settlement. 



5. Crime of simple offences against physical integrity

Case Number                          : 0019 / 15.CVZML

Composition of the Court       : Single Judge

Judge                                       : Florensia Freitas

Prosecutor                               : Napoleão Soares da Silva

Public Defender                      : Manuel Amaral

Type of Penalty                       : Withdrawal of complaint



On 24 November 2017 the Suai District Court attempted conciliation in a case of simple offences against physical integrity involving the defendant DL and the defendant EdC (husband and wife) who allegedly committed the offence against the victim AS, who is the oldest sister of the defendant EdC in Covalima District.



Charges of the Public Prosecutor

The public prosecutor alleged that on 15 November 2015 at approximately 12.30pm, the victim said a lot of things about dowry practices. Therefore, the defendant DL punched the victim twice in the face and defendant EdC pulled the victim's hair and punched the victim on the back of the neck and the victim fell to the ground. As a result of these acts the victim suffered an injury to her eyebrow, swelling to her knee, and severe pain.



The public prosecutor alleged that the defendant violated Article 145 of the Penal Code on simple offences against physical integrity that carries a maximum penalty of three years in prison or a fine.



Presentation of evidence

Before progressing to the presentation of evidence, pursuant to Article 266 of the Criminal Procedure Code on attempted conciliation, the judge may seek to reach conciliation between the defendant and victim.



During this attempted conciliation, the defendants apologised to the victim, regretted their actions and promised not to repeat such acts in the future. Also, during the trial the two defendants paid the victim US$100 and gave a traditional cloth (tais) in accordance with East Timorese custom.



During this attempted conciliation, the defendants apologised to the victim, regretted their actions and promised not to repeat such acts in the future. The victim forgave the defendants and wanted to withdraw the complaint against the defendants.



Final recommendations

The prosecution and defence accepted the amicable agreement between the two parties and requested for the court to settle this process.



Decision

Based on the request of the victim to withdraw the case and the amicable agreement between the parties, the court decided to validate the settlement.



6.  Crime of simple offences against physical integrity

Case Number                          : 0021 / 16. PDSUA

Composition of the Court       : Single Judge

Judge                                       : Florensia Freitas

Prosecutor                               : Napoleão Soares da Silva

Public Defender                      : Manuel Amaral

Type of Penalty                       : Withdrawal of complaint



On 24 November 2017 the Suai District Court conducted a hearing in a case of simple offences against physical integrity involving the defendant JdC who allegedly committed the offence against MdC in Covalima District.



Charges of the Public Prosecutor

The public prosecutor alleged that on 20 January 2016 (time not specified) the victim was at the home of JdC (customary elder), and received information from his younger sibling MdR that the defendant was dismantling the fence which had been made from rocks. In addition to informing the victim, MdR also informed a police officer (AC) to resolve the problem at the home of the customary elder.



When the defendant arrived at the home of the customary elder and saw the victim, the defendant punched the victim four times on the back of the neck and kicked the victim once in the ribs on the left side and the victim fell to the ground and at that moment the police officer (AC) stopped the assault. As a result of these acts the victim suffered pain in the places that were targeted by the defendant during the assault.



The public prosecutor alleged that the defendant violated Article 145 of the Penal Code on simple offences against physical integrity that carries a maximum penalty of three years in prison or a fine.



Presentation of evidence

Before progressing to the presentation of evidence, pursuant to Article 262 of the Criminal Procedure Code on attempted conciliation, the judge may seek to reach conciliation between the defendant and victim.



During this attempted conciliation, the defendant apologised to the victim, regretted his actions and promised not to repeat such acts in the future. The victim agreed and requested for the court to withdraw the complaint against the defendant.



Final recommendations 

The prosecution and defence accepted the amicable agreement between the two parties and requested for the court to validate the settlement and the request to withdraw the complaint.



Decision

Based on the request of the victim to withdraw the case and the amicable agreement between the parties, the court decided to validate the settlement and asked the defendant not to repeat such behaviour in the future.



7. Crime of simple offences against physical integrity

Case Number                          : 0005/16. ANHTU

Composition of the Court       : Single Judge

Judge                                       : Florensia Freitas

Prosecutor                               : Napoleão Soares da Silva       

Public Defender                      : Fransisco Caetano Martins

Type of Penalty                       : Withdrawal of complaint



On 24 November 2017 the Suai District Court attempted conciliation in a case of simple offences against physical integrity involving the defendant AdC and the defendant AC (husband and wife) who allegedly committed the offence against the victim HdC, in Ainaro District.



Charges of the Public Prosecutor

The public prosecutor alleged that on 17 March 2016 (at some time in the morning) the defendant AC was going to the plantation and was walking past the victim's buffalo which was tied up and the buffalo became startled and leaped away. Therefore the victim told the defendant ''if the rope holding the buffalo breaks I will stab you''. Then at approximately 4pm the defendants and a male neighbour went to meet the victim at his home. The defendant took a small round stone and struck the victim once on the back and once on the forehead which resulted in bleeding and bruising.



Then the defendant and his neighbour grabbed the victim and the defendant AdC took a stone and struck the victim once in the mouth and then their neighbours separated them.



The public prosecutor alleged that the defendants violated Article 145 of the Penal Code on simple offences against physical integrity that carries a maximum penalty of three years in prison or a fine.



Presentation of evidence

Before progressing to the presentation of evidence, pursuant to Article 266 of the Criminal Procedure Code on attempted conciliation, the judge may seek to reach conciliation between the defendant and victim.



During this attempted conciliation the defendants apologised to the victim. The victim forgave the defendants who were his neighbours and requested for the court to withdraw the complaint against the defendants.



During this attempted conciliation the defendants expressed regret for their actions, apologised to the victim, and promised not to repeat such acts in the future. The victim forgave the defendants and requested for the court to withdraw the complaint against the defendant.



Final recommendations

The prosecution and defence accepted the amicable agreement between the two parties and requested for the court to settle this process.



Decision

Based on the request of the victim to withdraw the case and the amicable agreement between the parties, the court concluded this matter and decided to validate the settlement. 



8.      Crime of aggravated larceny

Case Number                            : 0021/15. CVMCT

Composition of the Court        : Panel

Judges                                       : Argentino Luisa Nunes Florensia Freitas and Benjamin Barros

Prosecutor                                 : Napoleão Soares da Silva

Public Defender                       : Manuel Amaral 

Type of Penalty                        : Prison sentence of 2 year and 6 months, suspended for 2 years



On 30 November 2017 the Suai District Court announced its decision in a case of aggravated larceny  involving the defendants DM, GL, RdC and QdA against the Waskita Karya company represented by the company supervisor (GT) at the construction site of the Suai Airport in Covalima Municipality.



Charges of the Public Prosecutor   

The public prosecutor alleged that defendants were construction workers at the Waskita Karya company and there were helping to build the Suai Airport. On 13 May 2015 at approximately 12 midnight, after GT and the workers had a meeting, GT and his workers were resting. When GT and his friends were about to go to sleep the defendants stole 29 sacks of gresik brand cement from the warehouse and placed them near the river.



On the next day at approximately 06.00am, when the victim's friend MJ was exercising in the Hasain area approximately 25 metres from the Waskita Karya company, he saw 10 sacks of gresik brand cement and found the other 19 sacks of cement in another location.



GT received this information from MJ and then he went to the warehouse and saw that the cement was indeed missing and GT urgently summoned the security guards who were at work on the evening of the incident to ask them to provide information about this issue and found out that the defendants were involved in this act. The defendants' behaviour caused the victim to suffer a loss of US$174.



The public prosecutor alleged that the defendants violated Article 252.1 (d) (e) and (i) of the Penal Code on aggravated larceny that carries a prison sentence of 2-8 years.



Presentation of evidence           

During the trial the defendants confessed all of the facts set out in the indictment and stated that they regretted their actions, and promised not to reoffend against the Waskita company in the future. Also the defendants stated that the 29 sacks of cement that had been stolen had already given back to the Waskita Karya company.



The aggrieved party, who was represented by GT, stated that the company was willing to provide employment to East Timorese citizens including the defendants, but they need to be honest and collaborate properly with the company so that work can be carried out successfully.



Final recommendations

The public prosecutor believed that the defendants committed the crime based on the facts in the indictment, and therefore requested for the court to convict the defendants based on the crime they committed.



The public defender requested for the court to impose a fair penalty against the defendants because the defendants confessed, regretted their actions and gave back the cement that they took.



Decision

After evaluating the facts that were proven during the trial, the court concluded the matter and sentenced the defendant to 2 years and six months in prison, suspended for 2 years, and ordered each defendant to pay court costs of US$ 25.



9.      Simple offences against physical integrity and  usurpation of property

Case Number                            : 0034 / 16. CVMCT

Composition of the Court        : Single Judge

Judge                                        : Argentino Luisa Nunes         

Prosecutor                                 : Napoleão Soares da Silva

Defence                                    : Gaspar Mendonça (private lawyer) 

Type of Penalty                        : Withdrawal of complaint



On 30 November 2017 the Suai District Court attempted conciliation in a case of simple offences against physical integrity involving the defendant VSM who allegedly committed the offence against the victim LdJ in Covalima District.



Charges of the Public Prosecutor

The public prosecutor alleged that on 7 November 2016 at 9am the victim went from her house in Cassabauc to Fatuk Oan to clean up a plantation and hut. After cleaning up the victim was resting and suddenly the defendant and her younger brother (NM) came on a motorcycle to meet with the victim. The defendant yanked the front of the victim's shirt and grabbed the victim by the mouth and told victim to sweep the ground and the hut, and the victim then immediately went home. These acts caused the victim to feel pain to her throat and mouth.



The public prosecutor alleged that the defendant violated Article 145 of the Penal Code on simple offences against physical integrity that carries a maximum penalty of 3years in prison or fine and Article 261 on usurpation of property that carries a maximum penalty of 1-4 years in prison.



Presentation of evidence

Before progressing to the presentation of evidence, pursuant to Article 266 of the Criminal Procedure Code on attempted conciliation, the judge may seek to reach conciliation between the defendant and victim.



During this attempted conciliation the defendant stated that she regretted her actions and apologised to the victim. The victim forgave the defendant and requested for the court to withdraw the complaint against the defendant. 



Final recommendations

After hearing about the conciliation between the two parties, the prosecution and defence accepted the amicable agreement between the two parties and requested for the court to settle this process.



Decision

Based on the request of the victim to withdraw the case and the amicable agreement between the parties, the court decided to validate the settlement.
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