Judicial System Monitoring Program DILI 18 February 2009 - JSMP conducted monitoring for five days at the Baucau District Court (BDC) at the start of February 2009. During this period the BDC conducted hearings into nine cases occurring within the jurisdiction of this court. The hearings conducted between the 2nd and 6th February related to pending criminal cases. During these hearings witness testimony was examined, recommendations of sentence were presented orally and the court issued two sentences. There were seven cases of light maltreatment and 2 cases of attempted sexual assault. 4 cases of light maltreatment were adjourned because the defendants did not appear in court at the scheduled time. Decisions were issued in two cases and in three other cases the charges were read out and dates were set for the court to announce its decisions.
Final decisions were issued in Case No. 143/Crm.C/08/TD relating to attempted murder and also Case No. 146/Crm.C/08/TDB relating to a sexual assault against a minor. Several cases were adjourned to be continued later on this month. Four cases were adjourned due to the non-attendance of defendants in court. Based on JSMP monitoring in the aforementioned court, there were no clear reasons for the non-attendance of defendants. The judges, prosecutors and public defenders agreed to notify the parties to ensure their attendance in subsequent hearings. The hearings that took place at the BDC between 2-6 February 2009 are summarized below.
Baucau - 3/2/09
This case related to light maltreatment that was triggered by a small dispute between the defendant VS and the victim BD over thirty dollars. According to the indictment the defendant committed the offence against the victim who was his brother because the victim insisted that the defendant give his money back. The defendant committed the offence while he was intoxicated and he angrily slapped the victim twice causing the victim to fall down and strike his head on a piece of tin causing an injury above his eye. According to a medical report attached to the indictment the victim suffered an injury measuring 2x2 cm.
The public prosecutor (PP) charged the defendant under Article 351.1 of the Indonesian Penal Code which carries a maximum sentence of 2 years and 8 months imprisonment. During the trial the defendant and victim did not want to dispute the incident, they exercised their right to remain silent in consideration of the fact that they had already reached an amicable settlement before village elders. However the PP summoned the witness AD to provide testimony, who is a relative of the defendant and witness. He stated that he saw the defendant slap the victim twice on his right cheek. The victim fell down and struck his head on a piece of tin causing an injury above his eye.
The facts were established and there were sufficient grounds for the court to proceed to the recommendation of sentence. The PP did not modify the charge made against the defendant pursuant to Article 351.1 of the Indonesian Penal Code because there was concrete evidence in the form of witness testimony and medical report that supported the fact that the defendant had committed an offence against the victim. However the PP also requested the court to take into account mitigating circumstances and to hand down a suspended sentence of one years imprisonment against the defendant. The defence disputed the allegations of the PP and stated that none of the facts had been proven during the trial and therefore the court should acquit the defendant.
On 6/2 (scheduled for the announcement of the court’s final decision) the BDC sentenced the defendant to one years imprisonment suspended for 2 years. The court found the defendant guilty based on the facts established during the trial as well as witness testimony. The evidence was sufficient to fulfil the elements of Article 351.1 of the Indonesian Penal Code. In addition to the suspended sentence the court also ordered the defendant to pay court costs of 5 American dollars in accordance with Article 358 of the Timor Leste Criminal Procedure Code.
On Wednesday 4/2 the Baucau District Court announced its decision in a case of attempted homicide against the defendant SG (143/Crm.C/08/TDB). The PP stated in the indictment that on 31/12/2009 at the Baucau terminal the defendant and others (not named) attacked the victim who was selling meat. The defendant stabbed the victim in his right side resulting in a serious injury requiring treatment at the hospital. The PP charged the defendant under Article 354 of the Indonesian Penal Code.
In its decision the court stated that the facts of the case were sufficient to prove the commission of the crime. The court considered evidence including witness testimony.
Based on the facts established during the trial that were cross referenced with the allegations it was deduced that the defendant had no clear motive for committing attempted murder against the victim. It was also established that the defendant was carrying a knife that he used to stab the victim. It was proven that the defendant committed this act on his own free will. After carefully analyzing the aforementioned facts the court determined that the defendant was the perpetrator of the attempted murder. The court also considered the charge made by the PP against the defendant. In its sentence the court modified the charge in favor of the defendant because the crime did not respond with the elements of Article 354 of the Indonesian Penal Code as charged by the PP. The court decided to apply Article 53 of the Indonesian Penal Code and punished the defendant to 3 years imprisonment based on the facts taken into account during the trial as well as the charges. The court also considered that the injury suffered by the victim as a result of the defendant’s actions could have caused the death of the victim.
JSMP observed that the defendant was dissatisfied with the court’s decision and indicated that he will appeal the decision through his lawyer (Mr. Sergio) who JSMP managed to speak to at the aforementioned court. The lawyer for the defendant said that he will lodge an appeal to the higher court because his client is dissatisfied with the penalty issued by the court. In relation to this issue the presiding judge Edite Palmira reminded the defendant that he has fifteen days to lodge an appeal against the court’s decision in accordance with the law.
On Wednesday 4/2 the Baucau District Court announced its decision in a case of sexual assault committed by the defendant FM against the victim AD (15 years old). The decision mentioned the facts outlined in the prosecutor’s indictment that the incident occurred on 12 October 2005 in the sub-district of Watulari, Viqueque, at the home of the defendant. At that time the defendant ordered the victim to buy some biscuits, however, not long after the defendant followed the victim inside and approached her and embraced her placing his hand inside her pants and touching her genitals. The victim told her father about the actions of the defendant and the police were informed.
In response to the charges the defendant exercised his right to remain silent. Although the defendant did not respond to the charges the court examined and analysed other circumstances based on the indictment and evidence presented. The court also considered the agreement reached by the parties on 25 October 2005 whereby the defendant admitted his actions and offered a pig as an amicable settlement to the family of the victim. In relation to the facts of this case the PP charged the defendant with Article 290.2 of the Indonesian Penal Code which carries a maximum sentence of 7 years imprisonment.
Maltreatment is a crime that is frequently committed in Timor Leste. Almost all of the courts in each of the jurisdictions have to deal with a large number of these cases. On Wednesday the Baucau District Court tried a case involving the commission of the aforementioned crime. The defendant MJB who was accused of maltreatment exercised his right to remain silent in accordance with the law. The victim also exercised this right. The indictment stated that the defendant committed a case of light maltreatment against the victim whereby the defendant pulled the hair of the victim causing the victim’s head to collide with a pole resulting in injury. The PP charged the defendant with Article 351.1 of the Indonesian Penal Code. The law provides both the defendant and the victim with the right to remain silent, however in order to provide more concrete evidence in relation to this matter the PP requested permission from the court to summon witnesses to appear before the court in a subsequent hearing to be held on 2/3/09.
Even a mobile telephone can create problems within a family, as was the case in Baucau in 2006. JSMP conducted court monitoring at the Baucau District Court on Wednesday 4/2 in a trial relating to a case of damage to property involving the defendant MT and the victim DX. The incident occurred at the victim’s home because every night a woman would telephone the defendant’s husband. During a conversation on the telephone the defendant said “where are you, I keep calling you but you still haven’t come home yet”. The defendant told the court during the trial that she damaged the property of the victim DM as stated in the indictment because she was angry when she went to the home of the victim and saw her husband sitting with the victim in the guest room. When she saw her husband’s behaviour the defendant became angry and damaged property in the victim’s home.
Not long after the defendant damaged the property the police task force arrived at the scene and took the defendant to the police station where she was detained for 72 hours. It was estimated that the defendant damaged property belonging to the victim valued at 200 hundred dollars. Based on these facts the PP charged the defendant with Article 428.1 of the Indonesian Penal Code. There was an interesting development in this case during the trial. JSMP observed that the victim provided testimony that was vague after swearing to tell the truth. The judge threatened to charge the victim for making false declarations because some of her statements did not correspond with what she had told the PP and the police in relation to the incident. The judge said that the victim’s testimony did not correspond with the indictment and constituted false testimony pursuant to Article 262.2 of the Indonesian Penal Code which carries a maximum sentence of 9 years imprisonment. Even though she was threatened with perjury the victim confidently told the court that she was not lying and many times she swore to God that she was telling the truth.
The his final recommendation of sentence the PP stated that there was sufficient circumstantial evidence to prove that the defendant went to the home of the victim, damaged property inside the victim’s home and that the defendant committed the act of her own free will. The defendant admitted her actions but the PP said that the defendant failed to mention a lot of things to the court about damage to property as claimed by the victim in her testimony before the court. Based on this statement the PP modified the charge from Article 406 to Article 407 of the Indonesian Penal Code. The defence rejected the charges of the PP and stated that nothing had been presented during the trial to provide indications of the defendant’s guilt in this case. The property that the victim claimed was unusable was not actually damaged by the actions of the defendant but rather because PNTL instructed the victim to not interfere with the property because it would be used as evidence. Therefore the defence requested for the court to acquit the defendant.
In Timor Leste cases of sexual abuse against minors are prevalent. Case No. 146/Crm.C/08/TDB involving the defendant AM relates to such an incident. This case has been pending for some time and the Baucau District Court continued the trial and heard the final recommendation of sentence from the PP. According to the indictment the incident occurred when the victim J was aged 14 years old.
The hearing took place in the absence of the victim. The defendant and witness attended the hearing. The witness said that he did not actually see the incident directly but the victim told him about the incident when she returned in tears to the house where the witness was staying.
The victim said that the defendant AM tried to sexually assault her by pretending to grab hold of the victim’s breasts. The victim was afraid and ran to the home where the witness was staying. The witness said that after the victim told him about the incident they immediately took the victim to the Viqueque police station to lodge a complaint.
In response to questioning from the judge the witness said that he did not know the defendant that well because he did not reside in the home where the defendant was staying. The witness had just arrived from the sub-district of Watulari to have a photo taken for a school book.
The PP alleged that the testimony of the witness corresponded with the indictment and demonstrated that the victim was at the home of the defendant, and that the victim ran out of the house where she was staying and went to the house where the witness was staying because she was afraid and crying. It was also established that the victim told the witness about the incident and they took the witness to the police station.
After examining and analysing the facts the PP concluded that the defendant carried out the act of his own free will, and deliberately touched the victim’s breasts. The actions of the defendant caused the victim to feel afraid and she ran away from the house where she was staying and went to where the witness was staying which was approximately 600 meters away. After carefully considering these facts the PP charged the defendant with Article 290.2 of the Indonesian Penal Code.
The public defender rejected the allegations of the PP and stated that there was no evidence to find the defendant guilty under the article charged by the PP because the charges and the witness testimony were baseless. Moreover, the witness confirmed in his testimony that he did not see the incident himself, and was only informed of the incident by the victim. The public defender also mentioned other factors such as the age of the defendant (70 years old) and his economic circumstances and requested for the court to fully acquit the defendant.
For further information please contact: Roberto da Costa Pacheco Legal Researcher Coordinator, JSMP Email : email@example.com Landline: 3323883
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