Execution of the Court's Decision in the Virgilio Smith Case

On 18 October 2004, the Dili District Court sentenced Virgilio Smith to two years imprisonment for commission of a traffic offence pursuant to section 359 of the Indonesian Penal Code, UNTAET Regulation No 8/2000 and Directive No. 07/2001 on Traffic.

JSMP is aware that the Prosecution failed to execute the court order pendingthe determination of an appeal by the defendant against his conviction. Thedefendant consequently remains free. This has caused considerable confusion for the victim's family members.

According to section 42.6 of UNTAET Regulation 2001/25, a person sentenced to imprisonment must begin that term of imprisonment immediately, unless otherwise ordered, and the prosecutor is consequently obliged to execute that sentence immediately. However, the Prosecution has indicated to JSMP that, in their view, they are implicitly obliged to refrain from executing a
convicted person's sentence if that person has lodged an appeal. There is, therefore, uncertainty in East Timor as to if, and when, sentences should be executed in the event of an appeal.

Section 40.9 of UNTAET Regulation 2001/25 would, in part at least, appear to resolve this uncertainty. Pursuant to section 40.9 "the Court of Appeal is competent with regard to all matters concerning the detention of the accused, until final disposition of the appeal". In JSMP's view this section grants jurisdiction to the Court of Appeal to determine whether or not a convicted person appealing their prison sentence should begin serving that sentence. Section 40.9 would appear to confer a broad discretion in this respect. Nevertheless, there is no guidance as to the way in which it should be exercised. Section 40.9 is a general, catch-all provision, which fails to address a whole range of specific issues critical to the question of stays of execution. For example:

a.. To what extent is the judge of first instance competent to determine the detention status of a convicted appellant?
b.. Does the appellant have a right to challenge their detention if proceeding with an appeal or is this a question which can only be raised by the court at its own discretion?
c.. Is the prosecution entitled to apply for the detention of the accused if they lodge an appeal?
d.. Can the question of the execution of sentence be raised only "[u]pon receipt of the case file by the Court of Appeal", as suggested by a literal reading of section 40.9?

These are issues which are dealt with in detail in rules of procedure in other jurisdictions.

In JSMP's opinion a broad judicial discretion as to the execution of sentences pending appeals is essential. It is clear, however, that the numerous issues raised by the filing of an appeal against conviction, for which the sentence is imprisonment, must be specifically addressed by way of formal guidelines to remove the uncertainty which exists in this area. The need for further clarity is given added urgency by the apparent anger and confusion of the victim's family in this case and the critical need to promote public understanding of, and respect for, the judicial system in East Timor. ln JSMP's view this is a significant but often overlooked issue in the judicial system which must clearly be resolved.

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