ETLJB 10 November 2013 (Note: This report is a re-posting of the JSMP report archived from the East Timor Legal Information Site. The republication of this report is part of an ETLJB project of compiling all available court reports in English on our new "Court Reports" page.)
Judicial System Monitoring Programme 20 March 2008
During the second week of March 2008, in accordance with the list of scheduled hearings, the Baucau District Court conducted hearings in 7 criminal cases, including both serious cases (panel) and minor cases (single judge) as well as several cases of domestic violence and rape. The hearings relating to domestic violence and rape were declared open to the public.
JSMP observed that many hearings could not be conducted in accordance with the court schedule or notifications issued by the court to defendants, victims and witnesses.
During this period 3 cases relating to maltreatment, rape and attempted murder could not be heard.
When JSMP sought confirmation from an international, he informed JSMP that the parties could not be present because of problems with transport and because the majority of them reside in remote areas and therefore were unable to attend the court in accordance with the scheduled times. The international prosecutor said that the following court actors are working at the Baucau District Court: 3 judges (2 national and 1 international), four prosecutors (2 national and 2 international) and one public defender.
The limited number of judicial actors working at the Baucau District Court has a major impact on the trial process, recalling that there is a huge backlog of outstanding cases. As an example of these limitations, only one public defender is currently working at the Baucau District Court. During the aforementioned period, the public defender did not represent his clients because he was sick and the public defenders unit did not provide a replacement. Consequently the scheduled cases had to be handed over to a private lawyer. The hearings conducted during the aforementioned period including preliminary hearings, examinations of witnesses and final decisions.
In addition to the limited number of judicial actors, the building that was burnt by a mob in 2007, in response to the announcement of the results from the general election, has not yet been rehabilitated or repaired.
JSMP monitored hearings relating to the following cases:
João de Jesus /Case No. 98/crm.c/07/TDB
In accordance with the prosecutor’s indictment, the defendant was charged with Articles 285 & 138 of the Indonesian Penal Code on rape. The incident occurred on 21 November 2006, whereby the defendant went into a plantation and had sexual relations with the victim JS. The court heard testimony from the defendant and witnesses and the victim did not attend the hearing. Based on information obtained by JSMP, the victim did not attend because she is suffering from a mental illness. No witnesses were presented in this case who directly saw the defendant using force to have sexual relations with the victim. The trial was adjourned until 18 March 2008 to hear testimony from other witnesses and to amend the charges.
Boaventura S. Viana Cs/ Case No. 107/crm.c /07/TDB
This case involved 5 defendants who were accused of committing the crime of arson as prescribed in Article 187 (1) of the Indonesian Penal Code. The defendants burnt the house of the victim Alexandre da Costa. This incident occurred on 01 January 2007. The court heard testimony from the defendants, the victim and the wife of the victim. During this examination phase each of the defendants gave contrasting accounts. The trial was adjourned until 31 March 2008 to hear testimony from witnesses.
Andre da Costa No. 57/crm.c/07/TDB
The trial was convened to hear the final decision in a rape case whereby the defendant was accused of raping a minor. The defendant was charged with Article 285 of the Indonesian Penal Code on rape. There was no explanation about the use of this article for the act of rape, recalling that the rape was allegedly committed against a minor. The decision outlined that the defendant used force to have sexual relations with the victim on four occasions during May 2002. At the time of the incidents the victim was known to be a minor, however at the time of lodging her complaint the victim was aged 18. The article applied against the defendant was Article 285 of the Indonesian Penal Code and not Article 287, based on the complaint lodged by the victim. The court sentenced the defendant to four years imprisonment. The sentence was not immediately executed against the defendant as he has 15 days to decide if his lawyer wishes to appeal the decision.
Carlos da Costa/No. 121/crm.s/07/TDB
The defendant was accused of committing maltreatment against the victim by punching him and throwing a rock at the victim which caused injuries and bleeding to his temple. The hearing was convened to hear witness testimony. The trial was adjourned until 18 March 2008 to hear the court’s final decision.
Jaime Pantaleão/No. 135/crm.s/07/TDB
The defendant (father) was accused of beating and strangling the victim (his child) causing swelling to the victim’s neck, waist and mouth. After being beaten and strangled the victim proceeded to the hospital to seek medical attention. The court sentenced the defendant to 5 months imprisonment to be suspended for a period of one year and ordered the defendant to pay $20 in court costs. The defendant was charged with Article 351 (1) and Article 356 (1) of the Indonesian Penal Code. Source: JSMP Press Release 20/03/2008
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