1. REVIEW HEARING IN A CASE OF DOMESTIC VIOLENCE

On 12 January 2005 Judge Pereira (Timorese) in the capacity of Investigating Judge of the Dili District Court presided over a 72 hour hearing in a case of domestic violence. This case occurred in Dili on 5 January 2005; when the alleged criminal act was perpetrated, the suspect was immediately arrested by the police who happened to be at that location. The suspect (who was present in the hearing) is the husband of the victim.

The Public Prosecutor charged the defendant under Article 351 subsections 1 and 2, as well as Article 356 of the KUHP (Indonesian Penal Code). The investigating judge decided to detain the suspect in prison for a period of 30 days, in accordance with UNTAET Regulation 2000/30 on the Transitional Rules of Criminal Procedure as amended by UNTAET Regulation 2001/25 ("Regulation 2000/30"), pending further investigation by the Prosecution and the Dili Police Investigations Unit in order to prepare an indictment.

JSMP believes that the following points are worthy of attention:

a) Detention Period.

In the hearing, the legal representative of the suspect explained that the suspect had already been detained for 5 days in a police holding cell. During that 5 day period, which exceeds the 72 hour limit, the suspect was not brought before the court for a review hearing. The prosecutor explained that the suspect could not immediately be brought before a hearing because no judge could be found and this resulted in the matter being delayed 3 times.

JSMP believes that Section 19A.4 of Regulation 2000/30 sets out this matter in very clear terms: the police who are present at that location may arrest a suspect or take him/her to the police station when the suspect is caught in the act of committing a crime. However, after the suspect has been taken to the police station, the police are obliged to inform the Public Prosecutor to request an arrest warrant from the Investigating Judge.

JSMP observed that the defence raised this issue, however it was not given any serious attention by the Investigating Judge and it is most unfortunate that the Public

Prosecutor also ignored the issue of the arrest conducted without an arrest warrant. JSMP is concerned that the Prosecutor took this case to the court for a hearing when the Prosecutor was yet to submit a request to the Investigating Judge for a warrant of arrest for that suspect.

It is important to note that the main purpose of the review hearing is to examine the legality of an arrest carried out by the police against an individual considered to be a suspect.

JSMP believes that this case clearly is in conflict with Regulation 2000/30, Articles 6.2 (e) and 20.1 of which prescribe that a suspect must be brought before a review hearing in the court within 72 hours upon arrest.

b) Warrant of Arrest.

The suspect was first arrested by the police at the scene of the incident as he was caught in the act. The suspect was then taken to the police station and, without further investigation, was immediately released (apparently because the suspect was a family member of one of the PNTL staff at the police station). However, the family of the victim complained to the Police who then rearrested the suspect without a warrant of arrest from the Investigating Judge.

The Prosecutor stated that the second arrest conducted by the police did not require a warrant of arrest as the suspect was caught in the act when the first arrest was carried out.

In JSMP’s view the release of the suspect by the police following the first arrest was unlawful. The release was clearly in conflict with Regulation 2000/30 as the Police have absolutely no authority to release a person considered to be a suspect. However, any subsequent arrest had to be carried out in strict accordance with the legal requirements, irrespective of the circumstances in which the suspect was originally arrested. The suspect could not be described as being ‘caught in the act’ at the time at which the second arrest was carried out and the investigating police therefore erred for the second time.

JSMP believes that the suspect could only be validly arrested (the second time) on the basis of an arrest warrant issued by the Investigating Judge. It is important for the investigating police to keep a record and to first and foremost conduct an investigation. These matters should then be conveyed to the Public Prosecutor so that when the suspect is brought before the court for a review hearing there is a strong case to be heard. Ultimately the suspect must be processed at all times in accordance with Regulation 2000/30.

2. ACCUSED SENTENCED TO FOUR YEARS IMPRISONMENT IN RAPE DECISION

JSMP welcomes the 10 January decision by an international judge of the Dili District Court in a sexual violence case which sentenced the accused to four years imprisonment. This is the second longest sentence delivered in a sexual violence case since JSMP commenced monitoring such cases in 2003.

The case involved the rape of a minor by her father. The victim said her father threatened her with a knife, hit her with an electric cord, covered her mouth, and raped her three times in April 2004. The accused denied all charges. Medical evidence was submitted which stated that the accused had been raped. The victim’s body also had lesions caused by the beatings with the electric cord.

JSMP welcomes the Court’s application of Article 34.5 (the non-corroboration rule in cases of sexual violence) of UNTAET Regulation 30/2000 as amended by UNTAET Regulation 25/2001.

a) Rape or attempted rape?

However, the court’s two page decision also referred to the medical evidence and decided that since the victim’s hymen was apparently not completely torn rape did not occur. The Judge therefore found the accused guilty of attempted (under Article 53 of the KUHP) rape (under Article 285 of KUHP), and said that accordingly, the maximum sentence that could be imposed for rape (twelve years), would have to be reduced by one third (according to Article 53) to eight years.

JSMP is concerned that this decision is not in line with well known medical evidence that some women can engage in sexual intercourse without the hymen breaking. It is also not in line with the definition of rape in Article 285 of KUHP, according to which the offence involves sexual intercourse (penis-vagina penetration) (for more on these issues see JSMP’s report "An Analysis of a Sexual Assault Decision from Dili District Court").

Moreover, the decision is not in compliance with the international law definition of rape as provided in Article 7(1)(g)-1 of the Elements of Crimes Annex to the ICC Statute. According to this article two elements must be satisfied in order to establish the offence of rape:

1. "The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body."
2. "The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent."
   In JSMP’s respectful opinion therefore, the accused should have been found guilty of rape rather than attempted rape, and a maximum sentence of twelve years under Article 285 KUHP could have been considered.

b) Lack of consideration of aggravating factors in sentencing

JSMP is also concerned that although the judge referred to the accused’s relationship with the victim (he is her father), the fact that he had threatened her with a knife and caused physical injuries to her with an electric cord, and the fact the accused raped the victim three times, these aggravating factors do not appear to have been taken into account in the judge’s sentencing decision. Furthermore, at no stage did the judge refer to the fact the victim is a minor. Given these aggravating factors, in JSMP’s respectful opinion, a longer sentence than the four years decided by the judge may have been appropriate.

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