Special Panel For Serious Crimes Acquits A Defendant Of All Charges For The Second Time

On 23 March 2004, the Special Panel for Serious Crimes for the second time acquitted a defendant of all charges. Carlos Ena, an alleged member of the Sakunar militia in Oecussi was found not guilty of the murder of Ernesto Lafu and Vicente Quelo and other inhumane acts, both as crimes against humanity. In the same trial, Umbertus Ena, Carlos Ena’s brother, was convicted of the same allegations. He was sentenced to 11 years imprisonment with 1 year and 9 months deducted for time already served.

The Panel of three judges, consisting of Slyver Ntukamazina (Presiding), Siegfried Blunk and Maria Natersia Gusmao, after examining all of the evidence and witness statements decided that there was insufficient evidence to prove Carlos Ena’s guilt beyond reasonable doubt. The Panel will issue written reasons for its decision at a later stage.

The defence counsel for Carlos Ena, Allan Gutman, argued a strong case which raised doubt over whether the accused was even present at the crime scene when the events took place. One defence witness testified that Carlos Ena was not part of the group that committed the attack, but that he himself was present. By doing this, the witness implicated himself in these crimes. In his closing statement, the defence counsel claimed that the prosecutor has not yet investigated this person for their involvement in these crimes. When contacted by JSMP, the prosecutor responded by stating that witness statements obtained by the prosecution cast doubt on this witness’ claim and accordingly further investigation is not necessary.

JSMP is concerned that Carlos Ena was subject to approximately 16 months pre-trial detention when he was subsequently vindicated of the charges against him. A Court of Appeal decision in September 2003 ruled that Carlos Ena should be conditionally released. From May 2002 up until that time, however, he was detained. JSMP believes that the acquittal of Carlos Ena should result in a review of Serious Crimes Unit (SCU) detention requests and Special Panel decisions on this issue. The prosecution opposed defence applications for Carlos Ena to be conditionally released, primarily due to his risk of flight, and this was the reason relied upon by the Special Panel. JSMP is of the opinion that conditional release would have been far more appropriate, particularly as the accused was prepared to live with a relative in Dili for the duration of the trial, rather than his home in Oecussi.

There are further concerns regarding the SCU investigation in this case. For example, witness statements resulting from the SCU investigation in 2002 gave two quite contradictory versions of events. JSMP believes that further investigation into why this occurred could potentially have resulted in the dropping of charges against Carlos Ena, and could have avoided the lengthy pre-trial detention of an innocent man. Also, autopsy and medical evidence reports were only submitted after the trial had begun. The lateness of this crucial evidence and the significant, unresolved inconsistencies in the SCU investigation brings into question the investigation procedure in this case.

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