11 August 2008

East Timor Provedor Report on State of Siege

Estrada de Caicoli Dili, Timor Leste
No.Tlf: + 670 3331030, 3331070, 3331071
No. Ref PDHJ/DH/I/08

To : H.E. Vicente Guterres, Interim President of Parliament
: H.E. Fernando Lasama de Araújo, Interim President of the Republic
: H.E. Kay Rala Xanana Gusmão, Prime Minister
: Mr. Afonso de Jesus, Interim Commander General of the PNTL
: Mr. Taur Matan Ruak, Brigadier-General F-FDTL
: Dr. Julio Thomas Pinto, Secretary of State for Defense.
: Dr. Francisco da Costa Guterres, Secretary of State for Security

Copied to : H.E. Athul Khare, SRSG
: Mr. James Baker, Australian Defence Force Commander in East Timor.
: Mr. Rodolfo TOR, UNPOL Commissioner
: Ms. Fernanda Borges, President Commission A

Regarding : Report

With Respect

Based on article 27 of the Constitution of Democratic Republic of Timor Leste, the Ombudsman for Human Rights and Justice is an independent organ charged with scrutinizing, examining, and seeking to settle complaints against public bodies, and certifying the conformity of acts with the law and preventing and initiating the entire process to remedy justice.

The statute of the Ombudsman for human rights and justice, law number 7/2004, provides through article 33(1) that the Ombudsman shall maintain close liaison with similar institutions, bodies or authorities within Timor-Leste in order to foster common policies and practices, and to promote cooperation.

As reflected above, the authority of PDHJ is to examine the action of public authorities not of individuals. If individuals act against each other these actions may be classed as crimes, not as human rights violations. In addition, article 24, of the Statute, referring to the role of the Ombudsman in monitoring and providing advice states he has the role to: (a) oversee the functioning of public authorities, notably the Government, its agencies and private entities fulfilling public functions and services and may conduct inquiries into systematic or widespread violations of human rights, maladministration or corruption; (b) submit to the Government, the National Parliament or any other competent body, on an advisory basis, opinions, recommendations, proposals and reports on any matters concerning the promotion and protection of human rights and good governance.

Based on the above authority and duty, the Human Rights Division of the Ombudsman for Human Rights and Justice conducted monitoring from 12 February 2008 until today regarding the general situation, and particularly monitoring Caicoli police cells and areas in which the security forces have conducted security operations.

The following work has been undertaken:
- monitoring the security situation particularly in Dili
- monitoring detention at the Caicoli station in Dili
- Publicizing the role of the Ombudsman in receiving complaints from the public relating to the State of Siege pursuant to the Regulation of the State of Siege and State of Emergency, article 7
- Access to the courts and to the Ombudsman for Human Rights and Justice
- PDHJ received fifteen complaints made in relation to the State of Siege between 12 February and 11 March 2008.
- monitoring the economic situation during the State of Siege particularly for those people who work at night.

Results of the Monitoring of Detention

During the period in which PDHJ conducted monitoring of the cells in Caicoli Dili, commencing on 12 February until March 2008, it can be seen that there were many people who came into conflict with the law, were arrested by the police during operations and taken to be detained in the cells at Caicoli in Dili. The monitoring team from PDHJ conducted one on one interviews with a total of 72 people who were detained including 6 (six) women and 13 (thirteen) children including one female child.

The suspension of the right of movement

According to the information obtained by the monitoring team from their work at the detention center at Caicoli, the authorities arrested people because they were moving around outside the hours determined by the State of Siege law. During the operations of the joint PNTL and FDTL force (‘konjunta’) many people were arrested for walking around after hours and taken to be detained at the police cells in Caicoli Dili.

These detentions were based on the law of the State of Siege which suspended the right of people to move around between the hours of 8 (eight) pm until 6 (six) am. After the State of Siege was extended, the PDHJ monitoring team continued to monitor places of detention, in general but focused on the cells at Caicoli in Dili. From the monitoring of people who had been arrested because of walking around after hours one case was identified in which people were returning home from hospital during the evening. According to the statistics of the police, from 12 February to 29 February, a total of 79 people were arrested and placed in detention for moving around after the prescribed time. PDHJ conducted interviews with 44 of these 79 people.
When analysing this chart it can be seen that approximatley 35% of the people detained by the police were detained becasue they were moving around after the prescribed hours.

People who were caught by the authorities moving around after the prescribed hours were generally detained for 12 (twelve) hours, but were not taken by the police to the court for the first hearing. Because of this there was not an opportunity for the court to determine whether there is a crime of moving around after the hours prescribed by the State of Siege law and if so what punishment can be attributed to it. There was also no opportunity for the judge to adjudicate whether the arrest was carried out in accordance with the law or not, or if there was any mistreatment by the authorities during the arrest process.

Allegations of ill treatment From the results of the interviews conducted by PDHJ with the 72 (seventy two) detainees, 28 (twenty eight) alleged that they had been ill treated by the police, such as being hit or kicked. The people who alleged this ill treatment included one woman and 6 male children. When analysing this chart it can be seen that approximately 40% of those detained alleged that at the time of arrest they had suffered ill-treatment by the police.

From the allegations of ill treatment PDHJ is unable to undertake an in-depth process to confirm what occurred in 27 of those cases because those who made the allegations did not authorise PDHJ to conduct such investigations into the allegations. It is noted that one of those persons did lodge a formal complaint with PDHJ. Although the allegations of ill treatment have not been proven, the police must respect the rights of detainees. Such protection from ill treatment is guaranteed by article 30 Constitution of RDTL (Right to personal freedom, security and integrity), paragraph 4: no one shall be subjected to ill treatment, inhumane or degrading treatment.

It is also recommended that police must review their actions during arrest.
From the interviews PDHJ conducted with the 72 (seventy two) detainees, there were no allegations of ill treatment toward the detainees once they were within the police cells.

Security forces conduct arrests without arrest warrants

Through the monitoring of PDHJ during the State of Siege it was identified that the police conducted arrests without warrants, three specific cases were identified by the PDHJ. These three people were suspects and were arrested in their homes at night and taken to detention in the cells at Caicoli Dili. The action of the police arresting these people was not correct as the legal process establishes that the police must use an arrest warrant.

The legal process requires that in general when the case does not concern a crime involving flagrante delicto, a warrant from a judge must be used to authorize the detention.[1] This is also provided for in the Constitution of RDTL Article 30 (Every Person has the right to personal freedom, security and integrity), paragraph 2: that no one shall be arrested or detained, except under the terms clearly provided for by applicable law, and the order of arrest or detention should always be presented for consideration by the competent judge within the legal timeframe.
The Process of Preliminary Investigation PDHJ conducted monitoring of detention and met with detainees to conduct personal interviews with them. Two of those detainees who were interviewed stated that when they entered detention they were taken for interrogation by the police, rather than being taken before a judge to carry out the first interrogation. According to the legal process which is written in the Penal Procedure Code article 60, the Rights of the Defendant, paragraph a: when under arrest, the defendant has the right to be presented to the judge for the first questioning within seventy two hours from the arrest. And also article 63,
Persons to conduct and attend the first questioning of the defendant under arrest, paragraph 2: The judge has exclusive competence to conduct the first questioning after the defendant has been arrested, this questioning aims, above all, to apply the adversarial principle in relation to the prerequisites for the arrest and the conditions for the execution of the arrest.

The results of the monitoring of political rights

Law number 3/2008 establishing the regime of the State of Siege and State of Emergency, as well as government resolution 3/2008, prescribes that political rights are not curtailed. According to article 2 of the law establishing the regime of the State of Siege guarantees citizens the right to life, physical integrity, civil capacity and citizenship, the right to a defence in criminal matters, freedom of religion and from torture.

However, according to article 4 (4) of law number 4/2008 which is the authorisation of the President of the Republic to renew the declaration of a State of Siege, the right to assemble and demonstrate is suspended. According to the monitoring of PDHJ regarding the implementation of the State of Siege, until now there have not been any arrests by the police in relation to people holding meetings or demonstrations. Until now there has not been a significant impact for citizens on the rights mentioned above. The impact could be greater in relation to politicians attempting to implement their rights, but it was noted from the PDHJ monitoring that the majority of members of the National Parliament agreed to suspend the right to assemble and demonstrate.

According to the analysis of PDHJ, the limitation on the right to assemble means that public meetings cannot be held (political campaigns, press conferences of political nature, or meetings aimed at damaging the State), but meeting which are held in private can not be impeded by the state (such as family meeting, work meetings, or family parties and alike).

PDHJ also agrees if the State of Siege is downgraded to a State of Emergency. According to the monitoring of PDHJ it can be seen that the state has already controlled the situation in the country, and there are no longer reasons to warrant the continuation of a State of Siege. According to article 25 of the Constitution of RDTL a State of Siege can only be declared in cases where there is act of aggression or threat of aggression from other countries to invade or a serious disturbance or threat of disturbance to the democratic constitutional order. Also the law number 3/2008, article 1, re-enforces that a State of Siege can only be declared when there is a threat from a foreign force, or a serious disturbance or threat of disturbance to the constitutional order.

The results of the monitoring of economic and social activities

The objective of this monitoring was to investigate the economic and social impact of the State of Siege, particularly toward those who usually undertake activities at night. PDHJ conducted interviews with many affected people over a two day period at places around Dili including people who work in restaurants and restaurant owners, fish sellers and fishermen, people who sell vegetables, and sellers of produce in the markets. PDHJ selected the groups mentioned above because these people are required to work at night. The interviews were conducted to try to ascertain if the State of Siege had any negative or positive influences on their work or the economic situation in their households.

Based on the results of the monitoring by PDHJ through interviews with those identified groups of people, it was concluded that the State of Siege had a significant negative impact on the income of sellers and fishermen which in turn had also impacted on the economic position of their households. It was stated by an interviewee that “the state of siege can have a positive impact in controlling crime, but it should not limit all of us who do have not committed any crime, who are just trying to make a living”.

Those who worked in restaurants observed that after the start of the State of Siege, their working hours changed, previously they may have worked until 23:30 at night, but now with the State of Siege they worked only until 10:00pm. Overall the hours worked by those interviewed were reduced and therefore their salary was also reduced. There were people, from the point of view of restaurant owners and staff, who commented that they felt the situation improved once the prescribed hours changed from 8:00 until 10:00 pm.

The PDHJ monitoring team conducted interviews with people who sold fish and during these interviews these people stated that their income has also been affected because people could not come to buy fish late at night. In addition the fishermen were unable to fish at night to catch fresh fish and the consumers did not want to buy fish which is not fresh. During this time most of the fish sold had to come from outside Dili. The fishermen themselves also stated that during the State of Siege their catch was reduced because at night they are unable to fish. They also stated that sometimes when they slept beside the sea to wait for the sea to be right to fish, the police order them to return to their homes.

Similarly, some people who sell produce in the markets have felt a negative impact, for example those who buy their vegetables in the mountains and come to Dili to sell them. These sellers usually buy their vegetables in the afternoon and then come back to Dili in the early hours of the morning to sell them in the capital.

However, during the State of Siege these activities were greatly affected, because only after the sun has risen can the sellers come to Dili, and then when they arrive to Dili their vegetables are no longer fresh and many of them are not worth their full value. Socio-cultural impactAnother issue which the PDHJ monitoring team received information from the community was that during the State of Siege there was a negative impact on socio-cultural activities such as when a person died, family members were unable to attend associated rituals.

These are the results of the monitoring of the PDHJ during the State of Siege to date and thank you for your consideration of this report.

Dili, 19 March 2008

Dr. Sebastião Dias Ximenes

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