Relatório da CI - IV. Responsibility A - B

IV. Responsibility

A. Legal background Framework of the State

102. Under its Constitution, Timor-Leste is established as a democratic unitary State based on “the rule of law, separation of powers, the will of the people and respect for the dignity of the human person”. The State objectives are said to include the defence and guarantee of the sovereignty of the country, the guarantee and promotion of fundamental rights of citizens, political democracy and public participation, the promotion of the building of a society based on social justice and promotion and guarantee of effective equality of opportunity between men and women. Timor-Leste has what is described as a ”semi-presidential” system with four organs of sovereignty: the President of the Republic, the National Parliament, the Government and the courts.

103. The President is Head of State and Supreme Commander of the Armed Forces and is directly elected. The President has limited powers, though is able to dissolve the National Parliament, dismiss the Government and remove the Prime Minister in particular circumstances, as well as to veto draft legislation for a set period. The President may also grant pardons or commutations of sentence as well as having the executive power to declare war. The President is assisted by a Council of State (established in May 2005) which includes the President of the National Parliament, the Prime Minister, leaders of opposition political parties and a representative of civil society.

104. The National Parliament is comprised at present of 88 members. It has wide-ranging authority to pass laws and the budget and to consider the programme of Government. It has exclusive competencies with respect to a range of legislative matters, including: citizenship, rights, freedoms and guarantees, defence and security, suspension of constitutional guarantees, declaration of states of siege or emergency and granting of amnesties. Parliament has appointed seven parliamentary committees to consider particular subject areas, including Parliamentary Committee B which considers the questions of defence and security.

105. The Government has the mandate to devise and execute the general policy of the country. It is headed by the Prime Minister who is nominated by the political party with a parliamentary majority. The Prime Minister is then appointed by the President after consultation with the politicalparties represented in the National Parliament. The Prime Minister has the particular responsibility to lead and guide the general policy of the Government and coordinate the activities of all ministers, with ministers having responsibility to implement policies in the areas covered by their portfolio. Ministers are nominated by the Prime Minister and appointed by the President. There is no requirement that ministers be chosen from among the Parliament. The Council of Ministers is the body which brings together the Prime Minister and ministers, and secretaries of State may also be invited to attend. In a formal sense, the Government is comprised of the Prime Minister, ministers and secretaries of State.

106. The full system of courts established in the Constitution is not yet in effect in Timor-Leste. In particular, there is no Supreme Court, High Administrative, Tax and Audit Court or military court. However, there are two levels of courts: the district courts (in Dili, Baucau, Suai and Oecussi) and the Court of Appeal (which is mandated to exercise the functions also of the Supreme Court pending its establishment).

107. Timor-Leste has a complex system of “applicable laws” reflecting its history and changes in governance arrangements. In order of applicability, the sources of law are: (a) The Constitution of the Democratic Republic of Timor-Leste; (b) The laws of Timor-Leste (either passed by Parliament or the Government); (c) Regulations, decrees and executive orders made during UNTAET; (d) Indonesian laws as the laws “that applied in East Timor prior to 25 October 1999”, in so far as they do not conflict with international obligations and human rights standards.2

108. Understanding the norms which apply to a given situation can present difficulties arising from the mixed source of legal regulations. In the criminal law area, for instance, the applicable penal code remains the Indonesian Code, though procedure is governed by a government decree. In relation to F-FDTL, a decree-law provides for the structure of the military, but the laws governing the military discipline and career are the UNTAET laws. The situation is also often complicated by the limited specific transitional arrangements made for the continued application of 2 A Court of Appeal decision held that the “law that applied in East Timor prior to 25 October 1999” should be regarded as Portuguese law. However, Parliament clarified that what was intended was the law which had actually been applied, namely Indonesian law: Parliamentary Law 10/2003.

laws.
In particular, a question arises as to who now holds powers previously held by certain named office holders whose offices no longer exist in Timor-Leste. After 20 May 2002, the National Parliament passed a law allowing for the continuance of laws previously applicable and also providing that powers which had been conferred on the Transitional Administrator (the head of the UNTAET administration) would be exercisable by the competent authorities of Timor-Leste without further specification. Only in a limited number of cases was specific legislation passed to clarify the specifically inherited powers. In terms of practice since May 2002, the majority of laws passed by the Parliament have been proposed by the Government, and a number of key pieces of legislation for the security sector have been issued as decree-laws directly by the Government.

B. Individual criminal responsibility
1. Applicable law and standards

109. The legislation that comprises the criminal law of Timor-Leste derives from a complex matrix of sources. The majority of criminal offences are established by the Penal Code of Indonesia. Concepts of criminal responsibility, including accessorial liability, are also established by this code. UNTAET regulation No. 2001/5 on Firearms, Ammunition, Explosives and Other Offensive Weapons in East Timor establishes various offences with respect to weapons. Procedural matters are governed by the Criminal Procedure Code, a decree-law of Timor-Leste. While the Criminal Procedure Code does not expressly state the criminal standard of proof to be one of beyond reasonable doubt, various articles in the Code combine to imply this standard. Under article 114 (1) the defendant carries no burden of proof. Article 278 enumerates a list of factors to be considered in the decision-making process. These articles, taken together, are consistent with a consideration of proven facts on the standard of proof beyond reasonable doubt, in accordance with international criminal and human rights law.

110. The Commission reiterates that the standard it has applied is not one of proof beyond reasonable doubt. Rather, it has used a standard of reasonable suspicion: a reliable body of material consistent with other verified circumstances tending to show that a person may reasonably be suspected of involvement in the commission of a crime. Accordingly, the Commission identifies individuals reasonably suspected of participation in criminal activity in relation to the events of April and May as described in section III and recommends that certain of these persons be prosecuted under the domestic criminal law. The Commission identifies other individuals who, on the basis of the evidence before the Commission, fall short of being considered as possible suspects in connection with the crimes, but whose involvement in these events makes them persons of interest warranting further investigation. The Commission recommends that the competent authorities undertake such further investigation.

111. While recognizing that the decision to initiate any particular prosecution is within the discretion of the competent prosecuting authority, the Commission is cognizant of the utility and practicality of prioritizing the prosecution of those who committed serious crimes and/or were in positions of leadership and responsibility. It is noted by the Commission that the Office of the Prosecutor General has already commenced a number of investigations with respect to criminal offences committed as part of the events of April and May and that certain individuals identified in the present section are currently subject to that process.

2. Responsibility for the events
(a) Events for which no individual responsibility can be ascribed

112. A number of the incidents of violence that took place in April and May involved crimes for which the Commission cannot identify an individual or individuals as being responsible. This, of course, does not mean that no crimes were committed during these events. Clearly, serious crimes were committed and further investigation by the appropriate domestic bodies is warranted. These incidents are:

(a) The violence at the Government Palace at about midday on 28 April which resulted in two deaths, at least four firearm injuries and two other serious injuries;
(b) The violence at Taci Tolu during the night of 28/29 April which resulted in at least two deaths and three firearm injuries;
(c) The shooting at the Comoro market on 25 May which resulted in one firearm injury;
(d) The armed confrontation between F-FDTL soldiers and PNTL officers at the PNTL headquarters on 25 May which resulted in numerous injuries and the death of one F-FDTL soldier, Bure.

(b) Events for which individual responsibility can be ascribed

Violence at the Comoro market on 28 April

113. The violence that occurred at the Comoro market on 28 April resulted in the death of one civilian, firearm injures to eight civilians and four other serious injuries to both civilians and police officers, as described in paragraph 49 above. Evidence before the Commission establishes that UIR officer Octavio de Jesus fired at least six shots, some into the crowd. The Commissionrecommends that he be prosecuted. The Commission also recommends that further investigation be undertaken to establish whether any of the following UIR officers, or other UIR officers presently unknown, participated in the subsequent shooting: Abrão da Silva, Duarte Ximenes Belo, Daniel Carvalho sa Benevides, Salvador Moniz, Americo Fatima, José da Silva Mesquita, Mateus Fernandes and José Gayu.

Violence at Rai Kotu on 28 April

114. The violence that occurred at Rai Kotu on the afternoon of 28 April resulted in the death of one civilian, as described in paragraphs 50 and 51 above. Evidence before the Commission establishes that F-FDTL solider Paulo Conceição, aka Mau Kana, fired shots at civilians after he was injured in the grenade explosion. There is evidence which tends to suggest that these shots were fired in self-defence. Accordingly, the Commission recommends that further investigation be undertaken to establish whether Paulo Conceição bears any criminal responsibility for his actions.

Violence in Gleno on 8 May

115. Two disarmed eastern UIR officers were attacked by members of the crowd demonstrating in Gleno on 8 May, as described in paragraphs 61 to 63 above. One officer died, while the other was seriously injured. The Commission notes that the Office of the Prosecutor General has identified the following 12 persons as suspects in the unlawful death of the PNTL officer: Jacinto da Costa, Francisco da Silva, Vitor da Silva, Julio Barros, Antônio de Jesus, Afonso Beremau, Francisco da Silva (different from the individual first so named), Florindo da Costa, Apolinario de Araújo and Januario Besi. The Commission recommends that the investigation of these suspects continue.

Armed confrontation in Fatu Ahi on 23 May

116. The armed confrontation in Fatu Ahi is described in paragraphs 64 to 66 above. The evidence establishes that Major Reinado and the men who comprised his group are reasonably suspected of having committed crimes against life and the person during the armed confrontation in Fatu Ahi. On the basis of material before it, the Commission is able to establish that Major Reinado was present with at least 11 of his men, 10 URP officers and some civilians. The Commission is able to identify by name some but not all members of this group.

117. The Commission recommends that the following people be prosecuted: Alfredo Alves Reinado, Rudianus Anoit Martins, Leopoldino Mendonça Exposto, Gilberto Suni Mota, Anterlrilau Ribero Guterres, aka Anteiru Rilau Ribero, Alferes Joabinho Noronha, Filomeno Branco de Araújo, Inacío Maria da Concerição Maia, José de Jesus Maria and Amaro da Costa, aka Susar.

118. The Commission recommends that further investigation be undertaken to establish which of the following of Major Reinado’s men were present in Fatu Ahi: Moisés Ramos, Plácido Ribeiro Gonçalves, Deolindo Barros, António Savio, Filomeno Soares Menezes, Francisco de Augusto, Gilson José António da Silva, Joaninho Maria Guterres, Joaquim Barreto, José Gomes, Natalino Borges Pereira, André da Costa Pinto Martinho Almeida, Albilio da Costa de Jesus, Francisco Ximenes Alves, Filsberto Garcia, Dario da Silva Leong, Nelson Galucho and Nixon Galucho. The Commission also recommends further investigation to establish the identity of other URP officers and civilians who were members of the attacking group. If such investigation establishes the identity of these men, the Commission recommends that they also be prosecuted.

Armed confrontation in Taci Tolu/Tibar on 24 May

119. Evidence before the Commission suggests that as many as nine people were killed and three suffered serious firearm injuries during the armed confrontation in Taci Tolu/Tibar, as described in paragraphs 67 and 68 above. The evidence establishes that the 31 members of the Rai Los group, PNTL officers from Liquiça and civilians are reasonably suspected of having committed crimes against life and the person during this confrontation on 24 and 25 May. The Commission has been able to identify some but not all of these men. The Commission is satisfied that the 31 members of the Rai Los group were supplied with arms and uniforms and went to the Tibar area on the instruction of the then Minister of the Interior Rogerio Lobato, as described in paragraphs 88 and 91 above.

120. The Commission recommends that the following persons, being members of the Rai Los group, be prosecuted: Vicente da Conceição, aka Rai Los, Mateus dos Santos Pereira, aka Maurakat, and Leandro Lobato, aka Grey Harana. The Commission recommends further that the following Liquiça PNTL officers be prosecuted: Mariano Martins Soares, Martinho Borges, Abilio da Silva Cruz, Aponso Pinto, Manuel Maria dos Santos, Mateus Soares, Amadeo Silva dos Santos, Antonio da Silva, Americo da Silva, Crispin Lobato, Leandro dos Santos, Julio Tilman, Alcino Lay, and Francisco Rego. The Commission recommends also the prosecution of Rogerio Lobato.

121. The Commission recommends further investigation to establish the identity of other members of the Rai Los group and the civilians who comprised the attacking group. If such investigation establishes the identity of these men, the Commission recommends that they also be prosecuted.

Attack on the residence of Brigadier General Ruak on 24 May

122. The evidence establishes that armed men under the command of Abilio Mesquita initiated the attack on the residence of Brigadier General Ruak on 24 May, as described in paragraphs 69 and 70 above. The Commission has not been able to establish the identities of all these men. The evidence before the Commission establishes some involvement of Member of Parliament Leandro Issac in the event. As a result of this incident one PNTL officer died and two F-FDTL soldiers were injured.

123. The Commission recommends that the following persons be prosecuted: Abilio Mesquita, Artur Avelar Borges, Almerindo da Costa, Pedro da Costa, Valente Araújo and a person described as Elvis.

124. The Commission recommends that further investigations be undertaken to identify the other PNTL members present under the command of Abilio Mesquita. If these men can be identified, the Commission recommends that they also be prosecuted. The Commission also recommends that further investigations be undertaken to establish whether Leandro Issac had any culpable involvement in the crimes committed.

Shooting of PNTL officers on 25 May

125. The shooting of the PNTL officers is described in paragraphs 83 to 85 above. The Commission notes that there is no evidence that the murder of 8 policemen and the wounding of 27 police officers was anything other than the spontaneous actions of individual men done entirely outside the orders of the F-FDTL hierarchy. Specifically, the Commission is satisfied that Brigadier General Ruak cannot be held responsible for the rogue actions of F-FDTL soldiers which occurred after the ceasefire was established. The evidence establishes that six F-FDTL soldiers are reasonably suspected of murder.

126. The Commission recommends that the following persons be prosecuted: Nelson Francisco Cirilo da Silva, Francisco Amaral, Armindo da Silva, Paulino da Costa, José da Silva and Raimondo Madeira.

Burning of the da Silva family home on 25 May

127. The Commission is satisfied that the persons who set fire to the da Silva house did so knowing that there were people trapped inside, as described in paragraph 86 above. Six persons were killed. Investigations undertaken by the Commission have not identified any possible suspects. However, those investigations have identified the names or partial names of 27 persons of interest warranting further investigation.

128. The Commission recommends that further investigations be undertaken to establish the full identities of the following persons and their possible involvement in this event: the PNTL Deputy Commander for Aimutin Mauclau, Patricio da Silva, Carlito Sousa Gutteres, aka Carlotta Soares, Sebai Gutteres, Jeronimo Antonio Freitas, Luis Freitas, Nando Geger, Luis R. da Silva, Maumeta Colo, Tinu Labe, Cecar Tiu Mutin, Alex Titu, Cacu Mau, Luciano, Amata, Jose, Vicente, Ernesto, Manuel, Ciquito or Akito, Fernando, Chebay, Edocai, Maumeta, Arui and Tito.

Incident at the Mercado Lama on 25 May

129. The Commission is satisfied that Oan Kiak and his men were involved in crimes against the person and life at the roadblock established near the Mercado Lama on the afternoon of 25 May as described in paragraph 87 above. The Commission has not been able to identify the full names of all suspects.

130. The Commission recommends that the following persons be prosecuted: Oan Kiak, Black, Marito da Costa, Alberto Ossu, Antonio Ferlimo, Anfonso Kudulai, Aze Koeo, Carlito Rambo Bonifacio, Agapito, Lake Lake and Ozebi.

Weapons offences

131. The Commission notes its concern at the scale of illegal and irregular weapons distribution in Timor-Leste. The Commission also notes its concern with the inertia displayed by the Government in confronting the lack of control of weapons within its security forces in the face of credible intelligence of illegality and/or irregularity in the holding, movement and use of weapons.
There are varying degrees of criminal culpability with respect to weapons offences, as reflected in the varying maximum penalties established under law. Simple possession, although a crime, is a much less serious offence than use of a weapon or the unlawful transfer of a weapon or weapons. This is particularly so with respect to those persons who signed for and later returned F-FDTL weapons. Accordingly, the Commission recommends that prosecutorial discretion be exercised with respect to the weapons offences committed during the events of April and May and that only those persons reasonably suspected of the more serious weapons offences be prosecuted.

132. PNTL weapons. The evidence relating to the unlawful movement, possession and use of PNTL weapons is described in paragraphs 88 to 94. The Commission recommends that the following persons be prosecuted with respect to the illegal possession, use and movement of PNTL weapons on 8 May and/or 21 May: Rogerio Lobato; Eusebio Salsinha, Antonio da Cruz, Vicente da Conceição, aka Rai Los, Mateus dos Santos Pereira, aka Maurakat, Leandro Lobato, aka Grey Harana, Antonio Lurdes, aka 55, Marcos da Silva Piedade, aka Labadae, Francisco and Santa Cruz. The Commission also recommends that further investigations be undertaken to establish the identity of all persons involved in these offences.

133. With respect to the former Prime Minister, the Commission has no material before it on the basis of which it could recommend that Mari Alkitiri should be prosecuted for being involved in the illegal movement, possession or use of weapons. Nevertheless, there is information before the Commission giving rise to a suspicion that Mari Alkatiri knew about the illegal arming of civilians with PNTL weapons by Rogerio Lobato. Accordingly, the Commission recommends further investigations to determine whether Mari Alkatiri bears any criminal responsibility with respect to weapons offences.

134. F-FDTL weapons. The evidence relating to the unlawful movement, possession and use of F-FDTL weapons is described in paragraphs 95 and 96 and demonstrates that those weapons were distributed by and/or with the knowledge and approval of the following persons: Roque Rodrigues, Taur Matan Ruak, Tito da Costa Cristovão, aka Lere Anan Timor, Manuel Freitas, aka Mau Buti, and Domingos Raul, aka Rate Laek Falur. The Commission recommends that these persons be prosecuted for illegal weapons transfer. The Commission recommends further that of the persons who received the F-FDTL weapons on 24 and 25 May, only those who used the weapons in subsequent criminal activity be prosecuted. This includes, for example, Oan Kiak, who used a F-FDTL weapon during the incident at Mercado Lama on 25 May. Should a decision be taken to prosecute all individuals who received weapons for unlawful possession, the Commission holds records identifying these persons.

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