Extracts
UNITED
NATIONS
Economic
and Social
Council
Distr.
GENERAL
E/CN.4/2003/65/Add.2
13 January 2003
Original: ENGLISH
COMMISSION
ON HUMAN RIGHTS
Fifty-ninth session
Item 11 (d) of the provisional agenda
CIVIL
AND POLITICAL RIGHTS, INCLUDING QUESTIONS OF:
INDEPENDENCE OF THE JUDICIARY, ADMINISTRATION
OF JUSTICE
REPORT
OF THE SPECIAL RAPPORTEUR ON THE INDEPENDENCE
OF JUDGES AND LAWYERS DATO' PARAM CUMARASWAMY,
SUBMITTED
IN ACCORDANCE WITH COMMISSION ON HUMAN
RIGHTS RESOLUTION 2002/43
REPORT ON THE MISSION TO INDONESIA*
15-24 July 2002
E/CN.4/2003/65/Add.2
page 2
Executive summary
The present
report concerns a mission to Indonesia undertaken from 15 to 24
July 2002 by the Special Rapporteur on the independence of judges and
lawyers. The Special Rapporteur had received information concerning the
state of the rule of law, the administration of justice and in particular
the independence of the judiciary, with allegations of widespread and
systematic corruption within the administration of justice affecting all
actors, including judges, prosecutors, police and other court officials.
The Special
Rapporteur also received information on the situation of the
administration of justice in Aceh, Papua and Moluccas. His request for
access to these conflict areas was refused by the Government on the ground
that his security could not be guaranteed. Throughout the mission the
Special Rapporteur met a cross-section of all the actors in the
administration of justice, including the National Law Commission and the
National Human Rights commission, various NGOs working in support of
capacity-building for the administration of justice, including the National
Commission for the Protection of Children and the National Commission
on
Violence against Women. He also met the Chief Justice and some of the
judges of the Supreme Court, the Association of Judges, the
Attorney-General, the Ministers of Foreign Affairs and Justice and Human
Rights and Komisi II of the House of Representatives (DPR). In addition,
he
met representatives of the donor community. He also met the judges and
prosecutors of the Ad Hoc Human Rights Court for East Timor, in separate
meetings.
In his report
the Special Rapporteur also addresses issues related to the
prosecutors, the legal profession, steps taken by the Government to reform,
the Ad Hoc Human Rights Court for East Timor, and briefly, the situation
in
areas of conflict, children and women.
The Special
Rapporteur's conclusions and recommendations can be found at
paragraphs 78 to 106, and 107 to 119, respectively.
...
VII. THE AD HOC HUMAN RIGHTS COURTS FOR EAST TIMOR
58. In 2000,
the Indonesian legislature created a permanent Human Rights
Court as a special chamber of the General Courts. The law establishing
the
Human Rights Court, Law 26/2000, provides that the National Commission
on
Human Rights (Komnas HAM) is the sole body empowered to initiate and carry
out the preliminary inquiry into allegations of gross human rights violations.
E/CN.4/2003/65/Add.2 page 14
59. The
Bench of the Human Rights Court is composed of two career judges
and three ad hoc judges. The ad hoc judges are appointed to the Human
Rights Court and the Court of Appeal by the President on the recommendation
of the Chief Justice of the Supreme Court, and in the case of appeal to
the
Supreme Court, ad hoc judges are appointed by the President on the
recommendation of the DPR. According to an old law, the ad hoc judges
are
to be selected from academia. In addition, the ad hoc judges serve for
five
years with the right to a one-time renewal of their tenure.
60. The
Ad Hoc Human Rights Court for East Timor was created by
presidential decree pursuant to a provision of Law 26/2000 authorizing
the
creation of ad hoc tribunals to try gross human rights abuses committed
before the law was enacted. The presidential decree establishing the Ad
Hoc
Human Rights Court for East Timor provides for the investigation and
prosecution of crimes that took place in April and September 1999 in the
districts of Dili, Covalima and Liquica.
61. In March
2002, the court began hearing cases. A total of 18 defendants
have been charged before the court in 12 separate trials. None of the
defendants is accused of personally committing or commanding in the
commission of crimes against humanity. All defendants are charged either
as
accomplices to the commission of crimes committed by others or on a theory
of command responsibility: with failing to prevent, stop, or take steps
to
investigate and prosecute the commission of crimes against humanity
committed by persons under their command or authority and directed against
civilians. The indictments allege widespread or systematic acts of murder
and persecution directed against a civilian population, and that the
defendants failed to prevent their subordinates from carrying out such
crimes. These charges carry minimum sentences of 10 years' imprisonment
and
maximum sentences of death. The defendants include officials from the
military, the police and the civil administration.
62. The
12 trials are at different stages of completion. Decisions have
been delivered in a number of trials: the former Governor of East Timor,
Abilio Soares, and Eurico Guterres, leader of the Timorese Aitarak militia,
were convicted and sentenced to 3 and 10 years' imprisonment respectively;
10 other defendants have been acquitted. The prosecution has lodged appeals
against the acquittals.
63. Because
of, inter alia, the restrictive manner in which the indictments
were drawn up, the relatively low number of indictments issued, and because
senior members of the TNI were not indicted, a number of interlocutors
questioned the extent to which the prosecution had relied upon the
apparently extensive information placed before it by the investigations
of
the National Commission on Human Rights and by the United Nations
Transitional Administration in East Timor (UNTAET) into the events of
1999,
whilst conducting their own investigations.
64. In order
to clarify this matter, the Special Rapporteur discussed with
the Attorney-General, inter alia, the investigation into the murder of
Mr.
Sander Thoenes, a Dutch journalist, who was killed in Dili on 22 September
1999. Investigation into Mr. Thoenes murder had not led to charges being
preferred by the Indonesian authorities, notwithstanding the receipt of
considerable evidence provided by a joint UNTAET-Dutch investigation,
which
had, inter alia, identified a former member of Battalion 745 of the TNI
as
a suspect of the murder. The Special Rapporteur requested clarification
as
to whether the Attorney-General's
E/CN.4/2003/65/Add.2
page 15
investigation
had made use of the information provided by the UNTAET-Dutch
investigation. The Attorney-General seemed uncertain of the extent to
which
his Office had made use of this information. The Attorney-General informed
the Special Rapporteur that, in any event, the suspect identified by the
UNTAET-Dutch investigation had given inconsistent testimony under
cross-questioning from his Office and without 100 per cent certainty of
his
guilt an indictment against him could not be drawn up. The Special
Rapporteur was subsequently apprised that under the Code of Criminal
Procedure, the standard of evidence required for making an arrest is
"sufficient preliminary proof" and that the same standard is
assumed to
govern the filing of formal charges as well.
65. The
Special Rapporteur also learned that the DPR had adopted Witness
Protection Regulations in connection with the functioning of the Court
the
day before the Courts began proceedings. The Special Rapporteur was
provided with numerous examples of incidents demonstrating little
understanding of the purpose behind the regulations. These included the
case of two Timorese witnesses to the Court who were located in a safe
house outside Jakarta whilst waiting to testify before the Court. The
safe
house had a sign attached to the front wall with the words "Protection
House/Witnesses and Victims" in Bahasa Indonesia. Other examples
recounted
to the Special Rapporteur include the name of Timorese witnesses being
relayed by loudspeaker in the Jakarta domestic terminal and the failure
to
grant secure passage to witnesses upon arrival at the ad hoc court. The
Special Rapporteur also learned of allegations of witness intimidation
in
the courtroom, including the case of at least one Timorese witness who,
having given evidence, then had to sit at the back of the courtroom less
than two feet away from where the accused, against whom he/she was
testifying, was sitting.
66. The
Special Rapporteur was also informed of the generally hostile
atmosphere pervading the courtroom, where one Timorese witness was
questioned for five hours without break and without being provided water,
and the failure to allow translators from Tetum into Bahasa Indonesia
for
apparently bureaucratic and inconsistent reasons.
67. The
Special Rapporteur met with some of the judges of the Ad Hoc Human
Rights Courts for East Timor. He also met separately with the prosecutors.
The judges informed the Special Rapporteur that they had received very
little specific training on the international standards and international
practice relevant for the prosecution of gross violations of human rights
and crimes against humanity.
68. During
his meeting with prosecutors of the Ad Hoc Human Rights Court
for East Timor, the prosecutors informed the Special Rapporteur that,
in
order to prove the indictments before the Court, about 100 Timorese
witnesses would have to give evidence in court but they were not willing
to
come to Jakarta. This is reported to the Special Rapporteur as primarily
due to Timorese concerns regarding the security provided to them in
Indonesia and the financial implications of transporting and lodging
Timorese witnesses in Jakarta. In order to limit the ill effects on the
trials of the absence of Timorese witnesses, video-conferencing facilities
are being considered, whereby Timorese witnesses will be able to testify
in
the Court from Dili. The Special Rapporteur was also advised that the
prosecutors have not summoned United Nations witnesses, that is former
UNAMET staff members, notwithstanding several offers.
... X. CONCLUSIONS AND RECOMMENDATIONS
A. Conclusions
...
99. Regarding
the Ad Hoc Human Rights Court for East Timor, the Special
Rapporteur is disappointed that, notwithstanding the concerns raised by
many in connection with the temporal and geographic limitations on the
jurisdiction of the court, these limitations continue to remain;
accordingly, the court lacks jurisdiction to prosecute many serious crimes
that took place in East Timor in the period from 1 January to 25 October
1999. This restriction amounts to a violation of the principle that
prosecutions are to be undertaken in good faith and with due diligence.
100. The
several acquittals before the Ad Hoc Human Rights Court for East
Timor is not surprising. The insufficient investigations and the failure
to
produce material evidence contributed to such acquittals. The judges who
had to base their decisions on the evidence before the court may not be
faulted.
101. The
instances recounted to the Special Rapporteur over the manner in
which East Timorese witnesses were protected in Jakarta are an indication
of the wholly unsatisfactory implementation of the witness protection
measures.
B. Recommendations
116. With regard to the Ad Hoc Human Rights Courts for East Timor:
- The Government
is encouraged to develop a plan, with the assistance of
the international community, to ensure that future prosecutions of gross
human rights violations reflect international standards and practice.
This
plan should include, inter alia, review of Law 26/2000 to amend provisions
impacting upon the effectiveness, independence and impartiality of the
court; the competence
E/CN.4/2003/65/Add.2
page 25
and efficiency
of the prosecution, the establishment of an effective
witness- and victim-protection programme; and training, including the
possibility of international mentors, for judges and prosecutors on the
relevant international standards. This will serve to restore domestic
and
international confidence in the Government's commitment to bring those
responsible for human rights violations to justice.