JSMP News

SERIOUS CRIMES UNIT INFORMATION RELEASE

12 December 2003

SCU: INVESTIGATION AND PROSECUTION

COURT OF APPEAL APPLIES INDONESIAN LAW AS SUBSIDIARY LAW IN TIMOR LESTE IN SCU APPEAL OF SPECIAL PANEL DECISION

This week the Court of Appeal handed down a landmark decision applying Indonesian law to a crime committed in Timor Leste in 1999. The appeal involved a Serious Crime Unit indictment charging two former Aitarak militiamen with murder. In the decision, the Court of Appeal held that Article 338 of the Indonesian Penal Code qualifies as a "murder" charge and therefore the case fell within the jurisdiction of the Special Panels. The Court of Appeal ruling overturned the dismissal of the indictment by the Special Panel which had interpreted Article 338 as "manslaughter" and therefore outside the jurisdiction of the Special Panels as defined in UNTAET Regulation 2000/15. This is the first time that the Court of Appeal has applied Indonesian law to crimes committed in Timor Leste since its controversial July 2003 ruling in the case of The Deputy General Prosecutor
vs. Armando Dos Santos holding that Portuguese law applied.

In a preliminary hearing held on 11 July 2003, one of the Special Panels had dismissed the SCU indictment charging Domingos Amati and Francisco Matos with the murder of Antonio Pinto Soares (a.k.a. Charles) on 5 September 1999 in the Hera area of Dili. The Special Panel Judges had reasoned that the facts disclosed in the indictment did not amount to "murder" under Section 340 of the Penal Code of Indonesia, which requires premeditation. The Judges had ruled that the facts alleged in the indictment only satisfied the requirements of Article 338, which they interpreted as "manslaughter." While "murder" committed between 1 January and 25 October 1999 falls within the jurisdiction of the Special Panels, "manslaughter" does not.

Following the dismissal of the SCU indictment, on 21 July 2003 the SCU Prosecution filed an appeal with the Court of Appeal against the decision of the Special Panel. The Court of Appeal decision rendered on 9 December 2003 held that Article 338, although not requiring premeditation, is still "murder" since it requires a deliberate killing and therefore the case does fall within the jurisdiction of the Special Panels.

The SCU Prosecutor in the Appeal case, Mr. Essa Faal commented that the decision of the Court of Appeal overturning of the Special Panel decision is a positive development for the prosecution of serious crimes in Timor Leste in that it removes uncertainty as to the applicable law that applies in Timor Leste. Mr. Faal added that the practical outcome of the decision is that Domingos Amati and Francisco Matos will face justice for murder in a future trial at the Special Panels for Serious Crimes under the murder charges in the original SCU indictment.

The Court of Appeal was established under UNTAET regulation 2000/11 and began to hear appeals in 7 February 2001. The function of the Court of Appeal is to allow parties to cases to appeal decisions of any district courts in Timor Leste. This includes those parties to criminal cases before the Special Panels for Serious Crimes relating to crimes against humanity and other serious crimes committed during 1999.

FOR MORE INFORMATION ABOUT SCU CONTACT: scu@un.org