JUDICIAL SYSTEM MONITORING PROGRAMME PROGRAMA MONITORIZASAUN BA SISTEMA JUDISIÁRIU Case Summary Oekusi District Court July 2019 Total nu...
01 January 2015
The public prosecutor alleged that in March and April 2012 the defendant had sexual intercourse 8 times with the victim when she was 12 years old.
The public prosecutor charged the defendant with violating Article 177 of the Penal Code for the crime of sexual abuse of a minor.
“JSMP encourages all components of the State to understand that sexual acts against a child is a serious crime and causes prolonged psychological suffering and affects their development. JSMP appeals to all people to combat these crimes,” said the Executive Director of JSMP, Luis de Oliveira Sampaio.
The court found that in March 2012 the defendant forced the victim have sexual intercourse. Then in April 2012, the defendant again forced the victim to have sexual intercourse in the kitchen. The court also found that when the incidents occurred the victim was 14 years old, and the defendant had sexual intercourse with the victim twice, not 8 times.
The victim came from the mountains and stayed with the defendant in Aileu to continue school because they were family relations.
Based on the facts that were produced, in accordance with Article 274 of the Criminal Procedure Code, the court evaluated and amended the charges from sexual abuse of a minor (Article 177) to sexual acts with an adolescent (Article 178), because at the time of the incident the victim was 14 years old.
From the evidence and the circumstances of this case, the court sentenced the defendant to 3 years 6 months in prison for the first count and 3 years in prison for the second count. After accumulating the two sentences the court sentenced the defendant to a total of 5 years in prison.
JSMP encourages the court to consider applying the crime of rape (Article 172 of the Penal Code) in cases like this. The victim was 14 years old, but the crime of sexual acts with an adolescent only applies in situations where the defendant practices relevant sexual acts by taking advantage of the victim’s inexperience. When the defendant forces a victim to have sexual intercourse, it is more appropriate to charge the defendant with rape.
"It is also important to consider the aggravating circumstances related to this crime. This case involved abuse of a hierarchical dependency because the victim lived with the defendant so she could continue her schooling, and the victim was under 17 years of age. These circumstances can increase the applicable penalty to between 5 and 20 years in prison from the original penalty, which ranges between 5 and 15 years” said the Executive Director of JSMP, Luis de Oliveira Sampaio.
The defendant was not present when this decision was announced.
This case was registered as Case No. 445/14.TDDIL and was read out by judge Jumiaty Freitas representing a panel of judges. The public prosecutor was represented by Lidia Soares and the defendant was represented by trainee lawyer Abilio Pereira.
The resolutions passed on 24 October 2014, followed by the 31 October 2014 resolution, are likely to have serious negative effects for Timor-Leste. This is the case even if they are not revoked or challenged: the very fact of the Parliament and Government’s actions has already in itself caused damage to the functioning and independence of the judicial system.
Particular impacts on the justice system include:
a. The Government has shown that it is willing to interfere in the judicial system so that the future ability of the judiciary to decide matters impartially without threats or interference has been called into question. The ability of prosecutors and other lawyers to carry out their professional functions without interference has also been called into question.
b. The functioning of the courts and access to justice has been affected in the short term, as many cases have been adjourned and require retrial because they were being heard by international judges or prosecuted by international prosecutors. The immediate removal of these judges and prosecutors without any provision for transition is causing hardship to people seeking justice, threatening their rights to a fair trial, and will continue to delay the processing of cases.
c. The removal of significant resources (including judges, prosecutors and other judicial officers and advisors) from Timor-Leste’s justice system will impede the ability of the justice system to process cases quickly and fairly, as there is not a sufficient pool of additional resources with expertise or capacity to fill the roles which are left vacant. People will lose confidence in the ability of the justice system to deal with cases fairly and effectively.
See the full report at http://jsmp.tl/wp-content/uploads/2012/05/Report-and-legal-analysis-16-Dec-English.pdf