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Domestic Violence and Smuggling Dominate Oekusi District Court July 2019

JUDICIAL SYSTEM MONITORING PROGRAMME PROGRAMA MONITORIZASAUN BA SISTEMA JUDISIÁRIU Case Summary Oekusi District Court July 2019 Total nu...

22 June 2019

Ringkasan kasus Pengadilan Distrik Oekusi Maret 2019

Pasal 177, 182, 23 dan 24 (KUHP) junto Pasal 2, 3, 35 UU-AKDRT Tindak pidana percobaan pelecehan seksual berat terhadap anak dibawah umur berkarakter kekerasan dalam rumah tangga 1

Pasal 145 KUHP (KUHP) & Pasal 2, 3, dan 35 huruf (b) Undang-Undang Anti Kekerasan dalam Rumah Tangga (UUAKDRT) Penganiayaan biasa terhadap integritas fisik berkarakter kekerasan dalam rumah tangga dan tipe kekerasan dalam rumah tangga. 2

Total 3

Lihat lebih lanjut : http://jsmp.tl/wp-content/uploads/SumariuKazuTribunalOekusi_INDONEZIA-1.pdf

Case Summary Baucau District Court March 2019

1. Total cases monitored by JSMP: 32

Article 145 of the Penal Code (PC) as well as

Articles 2, 3, 35(b) and 36 of the Law Against Domestic Violence Simple offences against physical integrity characterised as domestic violence

Article 2 on the concept of domestic violence,

Article 3 on family relationships,

Article 35 on different types of domestic violence and Article 36 on domestic violence as a public crime) 23

Article 154 of the PC Mistreatment of a spouse 4

Article 20 of Law No. 5/2017 on bladed weapons Bladed weapons 2

Article 146 of the PC Serious offences against physical integrity 1 Article 140 of the PC Manslaughter 1

Article 263 of the PC Arson 1

Total 32

Please see the full report at
http://jsmp.tl/wp-content/uploads/SumariuKazuTribunalBAUCAU_ENGLISH-5.pdf
ENDS

Report on the circumstances faced by the district courts in East Timor

JUDICIAL SYSTEM MONITORING PROGRAMME
PROGRAMA MONITORIZASAUN BA SISTEMA JUDISIÁRIU
Website: http://jsmp.tl/

Report on the circumstances faced by the district courts

Submitted to the Honourable President of the Court Of Appeal

Introduction

We present this document to inform you about some critical issues facing the district courts that have been identified by JSMP through court monitoring/observation and interviews between JSMP and judge administrators. This report uses the Suai District Court as a reference point and will also comment on problems facing the other district courts. We are willing clarify and discuss this information if Your Honour is available, and if you feel it is necessary for us to provide more detailed information about these circumstances.

We believe that the Court of Appeal, as the highest court in Timor-Leste, certainly has its own priorities, but we believe that it is important to address the problems that we have observed to date. These circumstances often affect the quality of the daily and regular functioning of the courts. We believe that Your Honour has knowledge about these issues, but we are also aware that sometimes you are busy with other priorities so you are unable to adequately address these circumstances and problems. Therefore this document is informative in nature and is intended to remind Your Honour to seek a solution to these problems immediately without undue delay.

In the 2018 JSMP Overview of the Justice Sector Report[1], and reports from previous years, we have outlined some of the circumstances in each of the courts and made recommendations that solutions be sought for these problems. However, during the last few months we have continued to note other problems in the courts. The Suai District Court has faced significant challenges relating to problems with fuel, water, and hygiene, and limited or non-existent equipment, which has affected the productivity and the quality of work of the court and the services it provides.

Some of the problems identified by JSMP emerged in 2015 and some are the direct result of the political impasse that affected the entire State, particularly in 2017 and 2018.

The next section outlines the problems/issues that have been identified in each of the courts.

1. The Suai District Court

Based on the results of JSMP monitoring since 2017, most of the courts have suffered the consequences of limited funds to respond to their daily and regular work, in particular the Suai District Court. These circumstances were confirmed by Alvaro Maria Freitas, the Judge Administrator of the Suai District Court.[2]

1.1 Limited fuel for operational vehicles

The issue of a lack of fuel has been a serious problem since 2017 until now. The Suai District Court has carried out nearly all of its work with extremely limited fuel, so the courts cannot notify the parties on time. On some occasions the court has adjourned a trial because the parties have not been notified directly, but via other persons, such as police or community leaders or through other parties participating in trials at the court. Therefore when the parties did not attend, the court had to adjourn trials for long periods to wait for fuel to be able to notify the parties.[3] These limitations and shortcomings have meant that sometimes the judges, judicial officers and judicial secretaries have used their own money to put fuel in operational cars and motorcycle to distribute notifications to the parties or distribute release orders and other relevant documents.

1.2 Lack of operational vehicles

Currently the Suai District Court has only one operational car to deliver letters rogatory, release orders, requests for the Court of Appeal, to transport judicial officers to the mobile court, as well as to deliver notifications relating to the four district courts, namely covering Covalima, Manufahi, Maliana and Ainaro districts/municipalities. However this car has been out of service, so when there was an urgent notification, the judicial secretary had to provide a car and transport judicial officers to provide notifications.

1.3 Hygiene and water for the toilets

From 2015 until now the Suai District Court has not been able to provide a toilet for visitors due to a lack of clean water. This has meant that the court has not been able to provide a toilet for visitors, judicial actors and judicial officers, as well as parties to proceedings in this court. For many years the court has had to ask the fire brigade to provide water at certain times and/or just rely on rain water. However, in the dry season the judicial actors have had to go to their home and judicial officers have had to ask members of the community if they can use their bathrooms outside of the court.

As discussed in the JSMP Press Release published on 27 May 2019, JSMP discovered that this situation has also undermined minor victims who have suffered sexual violence or sexual abuse who need to go to the bathroom. JSMP believes that in such circumstances victims need to hold on until they get home. This is because psychologically they do not feel safe or comfortable enough to ask members of the community to use their bathrooms because of the trauma or pressure they feel as victims of violence and abuse.

1.4 Shortcomings of the court room and equipment and a dedicated room for objects of crime

The Suai District Court only has two court rooms available for six judges. Sometimes when there are many hearings the parties have to wait because the court rooms are in use.

The court also does not have a dedicated room for objects of crime. The Suai District Court has to keep lots of petrol on hand that has been seized from defendants who have committed the crime of smuggling (illegally importing the fuel across the border), but due to a lack of space, these objects of crime have to be put together with archived cases with a risk of contamination, corruption and/or destruction, damage or adulteration.

In addition, there are not enough computers for judicial officers because there are six judicial officers who share a central office but there are only 3 computers available, so they have to take turns to process cases. The Suai District Court also has a problem with the large printer in the criminal section because it has been broken since 2017, so judicial officers have to wait in line to print their documents from the large printer in the central office.

The Suai District Court also has a lack of facilities, such as chairs and tables because some of them are broken and the filing cabinets are all broken and many files are piled up on the tables and the cement floor. In addition, three Air Conditioners in the judicial officers work area have been out of service since 2017 which means that the officers have to go outside during work hours because they cannot endure the heat in the room and there is no circulation of air.

1.5 Insufficient number of judicial officers 

The Suai District Court also suffers from a lack of judicial officers because there are only six officers to assist six judges to prepare for trials and assist them during trials, to notify the parties, to issue orders and to queue up at the bank to transfer the proceeds of fines and court costs paid by convicted persons.

This has seriously undermined the judicial officers because they have to perform many responsibilities in accordance with their job descriptions and travel a lot. This situation has emerged because there is no balance between the distribution of work and available resources. This situation is reversed in the Oecusse District Court which has one judge and six judicial officers.

2. The Dili District Court

The situation here is almost the same as the other courts. For example the Dili District Court does not have enough laptops for judges because some of them are damaged and there are no laptops for trainee judges. The Dili District Court also has problems with Air Conditioners in the main court room which do not function properly and have been broken for a long time. The broken Air Conditioners make a lot of noise during trials which disadvantages visitors and affects their ability to properly understand and follow proceedings because they can't hear properly.

The Dili District Court also has a problem with limited printers and toner for the judges in both the criminal section and the civil section. This is a problem because the judges dealing with case files have to print files every day but they need to use a small printer which is not proportionate to the needs of the court. Also, the criminal and civil sections have to wait to print all of the cases because there is only one large printer. The printer has been rented by the court from a private company since 2017 and when it is broken they have to wait for it to be fixed. There is also a problem with the toner for the printer because often the needs of the court are not met because the quantity of toner they receive does not match their request. For example, there are two sections that normally use 10 toner refills every month. However the Court of Appeal is only able to provide five toner refills every month.

Other problems noted by JSMP include the fact that not all trials at the Dili District Court can be recorded because only three of the court rooms have a recorder. In fact, the Dili District Court has five court rooms and recorders for the other two have been broken for the last two years. In addition, even though the Dili District Court has five court rooms, sometimes there are many cases and the parties have to wait because all of the court rooms are full.

Other problems experienced in 2018 included the Dili District Court not having any petty cash to respond to urgent circumstances in the court such as fuel for operational cars when inspecting a scene or the mobile court, to buy food for the parties because they have to adjourn a hearing and to purchase materials such as light globes, fix taps and other needs at the court. Also, the Dili District Court only has two cars and eight motorcycles for operational needs to cover the districts of Dili, Ermera, Liquica and Aileu. These facilities are insufficient because the Dili District Court is in the capital city and its jurisdiction covers districts with a large number of people and many cases. 

3. Baucau District Court

The Baucau District Court lacks computers for judicial officers in the criminal section, civil section and central area because the Baucau District Court has 18 judicial officers[4]. Also, as discussed above, the Suai District Court has just six judicial officers. JSMP believes that the distribution of resources is unequal and unrealistic. JSMP observed that this situation has led to two judicial officers having to share one computer to type up court transcripts and other official documents. The Baucau District Court also only has one car and six motorcycles for operational needs, but its jurisdiction covers districts that are very large because in addition to Baucau, the court serves Viqueque, Lospalos and Manatuto.

JSMP has also observed that the office space provided to judges and judicial officers is very cramped. In addition, there is no room for the defence, prosecution and parties and also no place to keep objects of crime. In 2016 the number of judges at the Baucau District Court increased to seven[5] from a total of six over the last few years and there are only three office spaces allocated to judges, so from 2016 two judges have been sharing a room and their work space was very limited and case files are piled up. This situation emerged because judicial officers in the criminal section or civil section have had to work in a very limited space.

The Baucau District Court also does not have a separate area to store objects of crime because from 2015 onwards the Baucau District Court decided to keep objects of crime in the court room and cover them up with ply board. The Baucau District Court also does not have a waiting room for witnesses and victims as well as for public defenders/private lawyers, prosecutors and parties. JSMP discovered that often public defenders and prosecutors have to wait in front of the court for trials to begin.

It is very important to have a dedicated waiting room for lawyers/prosecutors because before going into a trial they have to prepare themselves and the lawyers/public defenders need to talk with their clients and public prosecutors also need to talk with victims or witnesses before a trial.

4. The Oekusi District Court

JSMP noted that for more than ten years the Oekusi District Court has only had one judge who is also the judge administrator in this court, and six judicial officers. This allocation of human resources is very unequal and has placed a large burden on the judge due to this unequal distribution of resources. On many occasions JSMP has visited and spoke with the judge administrator of the Baucau District Court, João Ribero, who has shared his concerns about the management and distribution of resources versus the work load. This is not favourable for cases that need to be heard by a panel of judges because it takes time to make arrangements with judges from Dili and for them to travel. In previous years sometimes the Public Prosecution Service in Oekusi has had two prosecutors and only one judge. This has meant that the judge has to work extra hard to manage his time and schedule trials. The judge is not actually dealing with limited resources, but in fact a complete lack of resources.

Similar to the circumstances of the Baucau District Court, the Oekusi District Court also does not have enough computers for judicial officers and translators because there are six judicial officers and there are only four desktop computers and two translators do not have a computer.  This situation has meant that judicial officers have to take it in turns to work and have to delay a lot of work that they need to complete.

Also, the Dili District Court has one operational car but it has been broken down since 2015 and has been put up for auction. This has meant that many trials have been adjourned because officers cannot provide notifications when it is raining heavily. In addition, the long distances are also a challenge when providing notifications via motorcycle.

5. A separate room for witnesses and victims

JSMP has also noted that until today almost all of the courts don't have a separate place for witnesses and victims (victims) when there is a need to protect their identity in accordance with the law.

Article 4 of Law 2/2009 on Witness Protection, relating to witness concealment, states that the court may decide, either unofficially, upon the request of  the Public Prosecutor, or upon  the demand of  the  defendant  or  of  the  witness,  that  the  testimony or  the  statement  must  be  taken  by  means  of  either concealing the witness's image or distorting his voice, or both,   instead   of   taking   the   form   of   a   public procedural  act  or  of  a  cross-examination,  in  order to avoid the witness's recognition.

JSMP believes that a separate room for witnesses and victims is mandatory according to the law to ensure that in cases involving gender based violence the witnesses and victims will be given favourable treatment because they will feel safer if there is no contact or interaction with defendants before a trial. Also, in important cases involving crimes characterised as corruption, homicide, martial arts groups, the court is obliged to protect witnesses to ensure their personal safety or that of their family or their possessions because they are making a contribution to the administration of justice and upholding the truth.

6. Recommendations

Based on the circumstances identified and discussed above, JSMP recommends for the Honourable President of the Court of Appeal to consider the following steps:

Request for the President of the Court of Appeal to visit the district courts or to send a team to seek information and identify existing problems and find solutions to resolve these circumstances without undue delay.

Ensure funding for operational items that cover the core work of the courts to ensure that trials can be carried out as per normal;

Draft a realistic budget plan and present these realities during the debate on the State Budget each year or hold a separate meeting with the relevant Committees at the National Parliament to present and discuss these circumstances.

The Court of Appeal can also identify priorities that require intervention and the provision of solutions to avoid these circumstances from occurring in the future and ensuring that the courts can work with adequate resources and in a dignified manner;

Reassess the resources distributed to the district courts and ensure that the courts receive support with fair conditions and avoid the unequal allocation of resources.

Cc:

President of Committee A of the National Parliament on Constitutional Issues and Justice
President of Committee C on Public Finance
Ministry of Legislative Reform and Parliamentary Issues
Ministry of Justice
Judge Administrator of the Dili District Court
Judge Administrator of the Baucau District Court
Judge Administrator of the Oekusi District Court
Judge Administrator of the Suai District Court
Office of the Prosecutor General
Office of the Public Defender
File

[1] Pages 16 -19 of the 2018 Overview of the Justice Sector Report, at: http://jsmp.tl/wp-content/uploads/OJS-2018-report-TETUM.pdf

[2] PR- http://jsmp.tl/wp-content/uploads/Tribunál-Distritál-Suai-sofre-problema-sériu-kona-ba-kombustível-ba-transporte-operasionál-desde-Janeiru-2019-no-prejudika-funsionamentu-regular-tribunál-refere-27-Maiu-2019-2.pdf

[3] Interview with Alvaro Maria Freitas,  Judge Administrator of the Suai District Court, March 2019

[4] The number of judicial officers increased from 14 to 18 in 2018

[5] The number of judges increased two years ago from 4 to 7

Citizens with mental illness convicted and jailed in East Timor

According to the peak law and justice civil society organisation in East Timor[1a] , the Judicial System Monitoring Program, the Courts are imprisoning citizens who cannot be held responsible for their crimes because of mental health (diminished criminal responsibility).

JSMP briefly outlines two recent cases and reports the following observations.

On 7 April 2019 the Dili District Court conducted a hearing to announce its decision in a case of aggravated homicide involving a defendant who allegedly committed the offence against his child and wife, in Likisa District.

The court found that the defendant was suffering a mental illness[1] when he committed this crime but the court still sent the defendant to prison for three years.

The court decided to send the defendant back to prison to guarantee that the defendant can receive medical treatment until he recovers from this illness.

Also previously on 12 February 2019 the Dili District Court issued a similar decision against the defendant PE for the crime of simple offence against physical integrity characterised as domestic violence and imposed an effective sentence of 1 year in prison against the defendant.[2]

“The decisions issued in these two cases could potentially violate the general rules and principles of the criminal law, particularly regarding exemption from criminal responsibility for those who suffer a mental illness at the time they commit a crime,” said the Executive Director of JSMP, Luis de Oliveira Sampaio.

Article 21 (1) and (2) of the Penal Code on exemption from criminal liability by reason of insanity state that:

 (1) A person is exempt from criminal liability if, due to a mental disorder, he or she is incapable, at the time of committing the act, to comprehend its unlawfulness or to decide accordingly.

2. A person may be declared exempt from criminal liability when, by force of a mental disorder, has, at the time the crime is committed, significantly diminished capacity to appreciate the unlawfulness of such an act or to act accordingly.

JSMP understands that currently there are no appropriate facilities for persons who are mentally ill; however a prison is not an appropriate place for persons who are mentally ill to receive treatment for their health.

JSMP believes that in such circumstances, especially because there are many shortcomings, the judges have to make difficult decisions based on the requirements of each case. However, this does not mean that judges can make decisions that are not in accordance with the law. Even though these decisions issued by judges stated that the defendants were being sent to prison for treatment until such time that they can recover, the time limit imposed of three years or one year gives the impression that the defendants are being convicted, rather than being given treatment. How can a judge predict that in one or three years' time a defendant will be able to recover from a mental illness? Literally speaking, prison is a place to punish convicted persons, and not a place to treat sick people.

JSMP understands that the courts have decided to send defendants to prison because the they might pose a risk to others if reintegrated in society. However, JSMP believes that prison is not the place for these defendants, because their condition is such that they need a suitable place that is quiet, friendly and accessible. Also, such a place should allow families to visit freely and for health professionals to provide regular treatment and counselling to help defendants recover quickly.

JSMP believes that this situation has emerged because the relevant ministries such as the Ministry of Health and Ministry of Social Solidarity have failed to identify the special circumstances in cases like this. Until now the government has not yet established a clinic or appropriate place for patients suffering a mental illness, especially those suffering serious conditions. Even though there is a doctor who specialises in dealing with patients who suffer a mental illness, this is not the same as those suffering from a serious condition. A concrete example is that many mentally ill persons are now moving around in the community and they pose a potential risk and threaten the people's security in society.

In cases with specific circumstances like this, when a judge is going to make a decision, it is necessary to hear the opinion of, and consult with, health professionals and officers from the Minister of Social Solidarity to find a collective solution based on the requirements of each case. The court needs to avoid predicting or interpreting such circumstance that fall beyond their professional competence.

JSMP recommends for the Government to establish specific and appropriate facilities such as these to avoid putting judges in such a difficult position.

[1a] Press Release Dili District Court 7 June 2019

[1] Based on the statement of the victim and the medical report of a doctor who specialises in mental illness.

[2] For more detailed information please refer to the Dili District Court Case Summary for February 2019 available on the JSMP website.