21 July 2019

East Timorese student believed murdered in Indonesia

Sleman police in the Province of Jogjakarta, Indonesia, believe that a student from East Timor,  Joao Bosco Baptista (21), was murdered. The victim's body was found lying on the slopes of Cemorosewu Gorge, Ngancar village, Plaosan subdistrict, Magetan Regency, East Java.

"The team has conducted investigations in order to pursue and find the suspects who caused his death" said director of Reskrimum Polda DIY, Kombes Pol Hadi Utomo, at a press conference at the DIY Mapolda, North Ringroad Padjajaran Street, Sleman, Thursday (18/7/2019).

Police have identified the Bosco body by deploying Inafis and DVI teams who found a number of injuries to his body.

There is no description of the perpetrator," explained Hadi. Kabid Humas Polda DIY, Kombes Pol Yuliyanto. He added that the Bosco family had reported the victim missing on July 2, 2019 from Banguntapan area, Bantul.

The day after the family again made reports that the victims were allegedly kidnapped.

"Then there was the discovery of the body of Mr. X in Magetan on July 14 (previously written July 12), the results of identification ensured the body of Joao Bosco's brother," he explained.

Original Indonesian source: https://news.detik.com/berita-jawa-tengah/d-4629734/mahasiswa-timor-leste-yang-tewas-di-lereng-lawu-diduga-korban-pembunuhan

A Note on Sexuality and Land Rights in East Timor

LGBT Pride East Timor 2017 East Timor Law Justice Bulletin Warren L Wright
ETLJB 21 July 2019 -  When the Constitution was being drafted, an early draft included in the non-discrimination provisions, a reference to sexuality. This clause was subsequently omitted and does not appear in the Constitution.

Homophobia, discrimination and marginalisation of gay East Timorese are being transformed not only by the gay community itself through public self-expression and assertion of identity but also in enlightened law and policy enacted subsequently.

In this regard, the provisions of the Land Law of 2017, are most worthy of note.

In the definitions section of the law, there is a definition of “vulnerable groups” in Article 2:

i) "vulnerable groups" means all persons who, because of questions relating to ethnicity, religion, provenance, condition social, gender, sexual orientation, age, physical or mental disability, are less likely to exercise their rights as citizens.

The original Portuguese text reads:

i) “Grupos vulneráveis”, o conjunto de pessoas que, em virtude de questões relacionadas com a sua etnia, religião, proveniência, condição social, género, orientação sexual, idade, incapacidade física ou mental, está numa posição mais suscetível de ver violados os seus direitos como cidadãos.

The inclusion of sexual orientation in this law is an important advance in the liberation of gay citizens from oppression, exclusion and stigmatisation, and not infrequently, violence.

See also
Homosexuality in East Timor
HIV-AIDS and Homophobia in Timor-Leste

Warren L. Wright BA LLB

20 July 2019

The Crime of Mistreatment of a Spouse

JSMP reported on a case in the Oecusse District Court that was heard in February this year concerning the crime of mistreatment of a spouse. Case No. 0150/17.OESIC was heard before Judges João Ribeiro, Sribuana da Costa and Eusébio Victor Xavier who were accompanied by Alexandre E. Brige Viega (mentor judge).

In the end the Court’s decision on penalty was 3 years in prison, suspended for 4 years.

This short note concerns the offence itself and the criminal behaviour of the defendant towards women to demonstrate the exact nature of the acts of violence perpetrated in this case; similar to many other reported cases of spousal assault in East Timor.

JSMP recorded the particulars of the violence:

Smuggling dominates Oecusse District Court proceedings

Oecusse District Court Smuggling East Timor Law Justice Bulletin Warren L. Wright
ETLJB 20 July 2019 On 15 May 2019, JSMP published the Case Summary from the Oecusse District Court for the month of February 2019. Of the ten cases monitored by JSMP:

- one case involved the crime of attempted sexual abuse of a minor [Articles 177, 23 and 24 (PC) as well as Articles 2, 3, 35 of the Law Against Domestic Violence Article 154 of the PC];

- two cases of the crime of mistreatment of a spouse [Articles 177, 23 and 24 (PC) as well as Articles 2, 3, 35 of the Law Against Domestic Violence]; and

- seven cases of the crime of smuggling. [Article 316 of the PC]

There follows a brief summary of the facts from the JSMP report in each of the smuggling cases.

1.    Crime of smuggling  Decision: 2 years in prison, suspended for 2 years

The public prosecutor alleged that on 20 August 2017, at approximately 11pm, the two defendants illegally imported some goods through the Poto border. The goods were 2,360 litres of petrol, 1,445 litres of diesel and 275 litres of kerosene.

19 July 2019

Chapter 1 East Timor Land Law 2017 Objects and Definitions

WARNING HUMAN_MODIFIED MACHINE TRANSLATION - Law No. 13/2017of 5 of June SPECIAL SCHEME FOR THE DEFINITION OF OWNERSHIP OF PROPERTY

CHAPTER I General provisions

Article 1 Objects

1. The present law establishes the special regime for the definition of ownership of land through recognition and attribution of the first property rights.

2. The purpose of the special regime for the definition of ownership of land is to clarify the situation of legal representation of real estate, promote the ownership of property to citizens and ensure universal access to land.

3. The recognition and attribution of the first property rights have as guiding principles the respect for rights, the recognition of possession as a basis for the attribution of the right of ownership and compensation in cases of duplication of rights.

Article 2 Definitions 

For the purposes of this law, the following definitions shall apply:

(a) “Aforamento” means the right of the user to the enjoyment of land by means of payment of a rent, with possible right of renewal recognised as such in the applicable law during the Portuguese administration;

(b) "Land" means the soil and everything that is a permanently attached building, in accordance with the provisions in the Civil Code;

17 July 2019

Community Land in the East Timor Land Law of 2017

Communal land tenure - East Timor - Protection of Customary Rights - Land Law

There follows a human-modified machine translation of Chapter 4 of the East Timor Land Law 2017.

CHAPTER IV Areas of Community Protection and Land

Article 23 Areas of Community Protection

Community protection zones are areas protected by the State for the purpose of safeguarding the common interests of a local community through special protection areas, agricultural areas, cultivated or fallowed, forests, cultural importance, places of sacred worship or linked to local tradition, pastures, water sources or areas where there are natural resources whose use is shared and necessary for their subsistence.

Article 24 Protection

In the community protection areas, the State shall:

a) Ensure that customary practices respect the Constitution, are participatory, not discriminatory and ensure gender equality;

b) Promote environmental sustainability and sociocultural use of natural resources and livelihoods of the local community;

c) Protect community land from land speculation.

Article 25 Use of Land in Community Protection Areas

16 July 2019

Courts must be "firm and strict" in sentences for sexual violence against minors, says JSMP

Image by Arte Moris East Timor Law Justice Bulletin Warren L. Wright Timor-Leste

ETLJB 16 July 2019 - The Judicial System Monitoring Programme, JSMP has called on the Courts to be strict and firm on sentences for sexual violence against minors. This follows the decision by the Dili District Court in Case No. 0059/14.PDDIL on 15 May 2019 to refuse a request for the conditional release of a convicted person who had served only one-half of his 10 year prison sentence (5 years) for the crime of aggravated sexual abuse against the victim.

In a press release dated 7  June 2019, JSMP congratulated the Court on its decision to keep convicted persons in jail to serve their entire sentence, especially for crimes characterised as rape. 

The "courts must be firm and strict in their decision making because these crimes have serious consequences for victims and destroy their future,” said Luis de Oliveira Sampaio, then the Executive Director of JSMP.

The court decided to order the defendant to serve his full sentence with consideration that the crime committed by the defendant not only destroyed the future of the victim who is a minor, but this sentence is proportional to the defendant's behaviour. 

The decision to keep the convicted person in prison was also aimed at strengthening the perception in society that crimes characterised as rape are serious crimes that cannot be tolerated in society.

Rape of Minors Prevalent in All Jurisdictions

JSMP monitoring has found that cases characterised as rape against minors continue to be prevalent in all jurisdictions. 

According to JSMP, "if the court grants such a request from a convicted person, it can create a precedent in the future, and society might believe that crimes characterised as sexual violence are simple or minor crimes and therefore the courts can release convicted persons who have not served their full sentences and grant them conditional release."

JSMP Overview of the Justice Sector Report 

JSMP's annual Overview of the Justice Sector Report demanded the courts impose heavy penalties against defendants in cases of rape. 

"This is a concrete step towards protecting women and minors. JSMP has also regularly recommended for the courts and the public prosecution service to establish ‘guidelines’ for charging and sentencing in these cases to ensure consistency in their decisions." 

Due to its concern about the rising number of cases of sexual abuse against minors, in January 2016 JSMP presented an opinion to the National Parliament on Procedures for Pardons.  

In that submission, JSMP posited that "pardons should not be given for crimes characterised as rape, such as the sexual abuse of minors and incest. These recommendations were given consideration by the National Parliament in Law No. 05/2016 dated 25 May on the Procedure for Granting Pardons and Commuting Sentences that excludes crimes against physical integrity or personal freedom with a prison sentence of 8 years and above."

15 July 2019

Crime of Manslaughter: One Year Imprisonment Suspended for Two Years

Image of the East Timor District Court's Coat of Arms East Timor Law and Justice Bulletin Warren L. Wright
There follows an extract of a notable case from the JSMP Summary of the trial process at the Baucau District Court for the month of March 2019. 
Case No.                                 : 0016/18.MNSTR
Composition of the Court       : Single Judge
Judge                                       : Ersilia de Jesus
Prosecutor                               : Remizia de Fatima da Silva
Public Defender                      : Sidonio M. Sarmento
Decision                                  : 1 year in prison, suspended for 2 years, and civil compensation of US$3,000

On 8 March 2019 the Baucau District Court conducted a hearing to announce its decision in a case of manslaughter involving the defendant Teofilio Pinto and the victim Lourenco Soares that allegedly occurred in Manatuto District.

Charges of the public prosecutor

The public prosecutor alleged that on 18 May 2018, at 10am, the defendant was driving a yellow truck bearing the number plate 51-458 Tls from Dili to Uatulari at normal speed. The defendant was taking his wife and a child. When they arrived in Manatuto near the salt production area, the victim was crossing the road. The defendant sounded the horn and yelled out but the truck struck the victim who fell down and was shaking on the road. The defendant got out of the truck and jumped over the victim's body seven times so the victim wouldn't die, but the victim actually died.

When he saw that the victim was dead, the defendant, together with his wife and child, got on a bus heading from Baucau to Dili to hand himself over to the Manatuto police but on the way they met with the police so the defendant handed himself over to the police who took him to the Manatuto police station.

The defendant made an agreement with the family of the victim in relation to this incident, that firstly the defendant would give US$2,000 and a pig to the victim's family. Then for the funeral ceremony and the 6 month anniversary of the death, the defendant would give another US$1,500 and a buffalo. Meanwhile, for the ceremony to end the mourning period, the defendant would give another US$1,500 and a pig.

The public prosecutor alleged that the defendant violated Article 140 of the Penal Code on manslaughter that carries a maximum penalty of 4 years in prison or a fine.

Presentation of evidence

During the trial the defendant fully confessed to all of the facts in the indictment and stated that the defendant was driving the vehicle at 70 kilometres per hour and when the front of the car was level with the victim the victim suddenly started crossing the road and the defendant was startled. For this reason the defendant swerved and the vehicle slid into a gutter and the defendant saw the victim fall on the road. In relation to the agreement between the defendant and the victim's family, the defendant stated that he gave US$2,000 and a pig. The defendant was supposed to give a buffalo at the ceremony to end the mourning period but he decided not to do so because based on the agreement if the defendant complied with the conditions the case would not be taken to court, but in reality this case ended up at the court. In addition, the defendant's truck, that he needs to make a living, is still at the Manatuto Police Station.

The witness Julia Soares, who is the victim's wife, testified that she was at home and the victim left to check on his buffalo. Suddenly she heard a vehicle strike the victim killing him instantly. When the witness and other families arrived at the scene they saw that the victim was already dead and his head was split open and broken hip. Meanwhile, the witness Filomena da Silva, who is the defendant's wife, chose the right to remain silent.

Final recommendations

The public prosecutor stated that the defendant confessed to all of the facts in the indictment and stated that the defendant was driving the vehicle at a higher speed than normal. In addition, there were no unfavourable conditions because it was nice weather and the road was in good condition. Therefore, he requested for the court to impose a suspended sentence against the defendant and to order the defendant to pay civil compensation based on his economic capacity.

The public defender requested for the court to apply a more lenient sentence against the defendant, and to return the vehicle to the defendant and for the court to use its discretion to determine civil compensation. The public defender stated that the defendant confessed to all of the facts in the indictment, regretted his actions, and stated that nobody wanted the accident to occur, and the defendant had been driving the vehicle for a long time and this was his first accident and the defendant was a first time offender.

Decision

After evaluating all of the facts, the court found that the defendant committed the crime based on the facts set out in the indictment. Based on the facts that were proven and all of the mitigating circumstances, namely that the defendant confessed the alleged facts, regretted his actions, has reconciled with the family of the victim, was a first time offender, the court concluded the matter and imposed a prison sentence of one year against the defendant, suspended for one year, and ordered him to pay civil compensation of US$3,000 to the victim (the remaining amount that the defendant has not yet paid to the family of the victim) as well as court costs of US$20. The court also decided to return the defendant's vehicle.

Members of East Timor’s Parliament concerned about seizures and pre-trial detentions that have exceeded time limits

Image of the East Timor National Parliament East Timor Law and Justice Bulletin Warren L Wright
ETLJB 15 July 2019 - Members of East Timor’s Parliament have expressed their concerns about State agents seizing cars, passports and other goods for indefinite periods of time and cases that have not moved forward and have seriously undermined the ability of individuals to conduct their activities, and this poses a threat to foreigners who wish to invest in Timor-Leste.

East Timor’s peak law and justice civil society organisation, JSMP, “believes that the concerns presented by members of parliament are very important because the Constitution and the law grant wide ranging competence to examine and deal with issues that not only include human rights violations and good governance, but also issues of constitutionality and also issues linked to the legislative process to ensure that the legal framework does not contradict human rights principles enshrined in international conventions and the Timor-Leste Constitution itself”, said the Acting Director of JSMP, Casimiro dos Santos, in a press release dated 4 July 2019.

In relation to the abstract review of constitutionality provided in Article 150 of the Timor-Leste Constitution, this has never been carried out to date because the Office of the Ombudsman for Human Rights and Justice (PDHJ) did not sufficient resources.

“The PDHJ received 203 complaints in 2018, comprising 81 cases relating to human rights violations and 122 cases relating to issues of good governance. From this total, proceedings were initiated in 44 cases comprising 23 cases relating to human rights and 21 cases relating to good governance. Meanwhile, the human rights violations recorded included 3 violations of the right to life, 18 violations of freedom, integrity and security, 1 violation of the right to access justice and 1 and violation against women”, the JSMP press release noted.

East Timor Law and Justice Bulletin


East Timor’s Peak Law & Justice CSO demands courts include civil compensation in final decisions


Logo East Timor Judicial System Monitoring Programme Law Justice Warren WrightETLJB 15 July 2019 - East Timor’s peak law and justice civil society organisation, the Judicial System Monitoring Programme, has called on public prosecutors and the courts to include civil compensation in cases involving the crime of rape.

On 29 June 2019 JSMP observed that the Suai District Court convicted a defendant for committing the crime of sexual abuse against the victim, aged 13, and did not order the defendant to pay civil compensation.

"An order for the defendant to pay civil compensation is a way of compelling the defendant to redress the psychological suffering of the victim who has been affected by the actions of the defendant. This provides justice to victims who have suffered psychological pressure, especially in cases of a sexual nature involving minors," said Casimiro dos Santos, Acting Director of JSMP.
  
The Criminal Procedure Code provide for the right of a victim to obtain civil compensation from a defendant. Article 430 of the Civil Code states that when a victim's suffering relates to violence, civil compensation must be provided. “Therefore, for certain crimes, especially those characterised as rape, defendants must be ordered to pay civil compensation to victims. This article does not provide an option to consider the inclusion of civil compensation, but states that civil compensation must be included,” stated in a press release dated 9 July 2019.

JSMP demands that  prosecutors and judges to include civil compensation in their respective final recommendations and sentences.

“JSMP believes that the prosecutors and the courts have failed in this regard, because they have not been sensitive and have not thoroughly explored the relevant provisions that guarantee the rights of the victim. JSMP has always believed that the approaches used in such cases and the methods of resolution, as well as the sentences applied by the courts in each case, should contribute to deterring other cases from occurring in the future.”

JSMP observed that “in nearly all decisions the courts have not imposed civil compensation in cases involving rape. In its annual report in 2018 JSMP reported that during 2018 there were 25 rape cases where defendants received a prison sentence. From these 25 cases, only in 2 cases the court asked the defendant to pay civil compensation to the victim.”


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