Relatório da CI - V. Accountability measures

V. Accountability measures

174. In the report of the Secretary-General to the Security Council of August 2004 on the rule of law and transitional justice in conflict and post-conflict societies, it was noted that “justice, peace and democracy are not mutually exclusive objectives, but rather mutually reinforcing imperatives…”.4 It is clear from the many statements made to the Commission in the course of its work that the people of Timor-Leste believe that the key to the advancement of peace and democracy in their country is an end to the culture of impunity and that justice be seen to be done. If this imperative is to be achieved in Timor-Leste, a sustained and substantial long-term effort will be required on the part of the Government and its international partners.

175. In accordance with its mandate, the Commission is required to recommend measures to ensure accountability for crimes and serious violations of human rights allegedly committed during April and May 2006, taking into account that the Government of Timor-Leste considers that the domestic justice system should be the primary avenue of accountability. The Commission has accordingly focused particular attention on the capacity of the Timorese judicial system to support the investigations and prosecutions of the criminal conduct identified in the present report.

A. Existing judicial mechanisms

176. While the Government has shown a strong commitment to the justice sector, including by enacting detailed legislative frameworks, in reality Timor-Leste has what might be described as a minimally functioning judicial system. 4 S/2004/616, summary.

177. The courts and structures under the Constitution which have been established are still developing and the system remains heavily dependent upon international personnel performing line functions. The justice system has been criticized in a number of reports which highlight the causal factors of this weakness. These include the vacuum left after the Indonesian withdrawal in 1999; a certain level of ad hoc planning and distribution of resources during the initial establishment phase; the lack of experienced Timorese legal actors; difficulties associated with the recruitment and use of international personnel; cumbersome language issues; and, as with other sectors, limited resources.

178. Notwithstanding this weakness, the Commission recognizes that the justice sector to some extent continued to function in the aftermath of recent events. When the international forces began to arrest persons, skeleton staff of the judicial sector undertook pre-trial and detention hearings. The investigation process has commenced in relation to some of the key events. Initial steps of the prosecution process have been taken with respect to a few persons, including the former Minister of the Interior. This is indicative of a strong commitment within the judicial sector to contribute to the continued development of the rule of law in Timor-Leste.

179. In the light of its terms of reference, the Commission has considered carefully the views of the Government that primacy should be given to the domestic judicial system, the strengths and weaknesses of that system and the nature of the crimes committed. In order to ensure accountability for crimes committed during recent events, it is vital that the investigations, prosecutions and trials be, and be seen to be, impartially conducted and free of any political interference. An international tribunal is not considered appropriate given that the crimes under consideration contravene domestic law. The Commission has concluded that criminal cases should be handled within the domestic judicial sector. However, measures are needed to strengthen the ability of the domestic system to handle high-profile cases involving political actors in a manner that will be considered credible by the population.

180. The Commission is mindful of the complexities involved. It has given a high priority to recommendations aimed at ensuring that the process will be impartial and independent and be seen to be such. In view of the current weaknesses described above, many of the recommendations provide for a central role for international actors. Recommendations are also made concerning the involvement of national actors both to ensure sufficient knowledge of the social, political and cultural background relevant for the cases and to reinforce the development of the national justice sector. The Commission stresses the need to consider these trials in a holistic sense with attention given to the operation of the different elements of the judicial process: the courts, the Public Prosecution Service, the Office of the Public Defender and the prison system.

The courts

181. There are two levels of courts operating at present in Timor-Leste: the district courts and the Court of Appeal. It is the Dili District Court which has jurisdiction over crimes committed during the events outlined in this report. The Constitution specifically prohibits the creation of “courts of exception” or “special courts to judge certain categories of criminal offence”.

182. The primary judges hearing cases presently are international judges. These judges have been appointed by the Superior Council for the Judiciary under the Statute of Judicial Magistrates on the basis that it is “deemed necessary and convenient”. Such judges are required to have at least five years’ experience and come from a civil judicial system or have a specialization in comparative law. At the time of the Commission activities, there were four international judges appointed to work in the District Court and two judges in the Court of Appeal. Eleven national probationary judges, having recently completed their theoretical training in June 2006, have reentered the court system and are available to hear cases. Probationary judges have expressed a desire to hear more simple matters. The President of the Court of Appeal indicated to the Commission that the intention was for probationary judges to hear less serious cases and work alongside international appointees.

183. Criminal trials involving offences punishable by more than five years’ imprisonment are presided over by a panel of judges. Other cases are presided over by a single judge. The President of the Court of Appeal, as President of the Superior Council of the Judiciary, has the power to prepare “standing executive orders” and perform such administrative acts as may be necessary for the smooth running of the courts. The President of the Court of Appeal informed the Commission that the composition of panels to hear cases arising from the present report might be determined by an executive order issued by him.

184. The Commission considers that given the fragile state of the judicial sector, the nature of the cases and the need for a process which is seen to be impartial, it would be unrealistic to place the burden of such trials entirely on national probationary judges. It therefore recommends that international judges play a central role in the proceedings. National probationary judges should participate in the process in order to bring to the bench knowledge of the Timorese context, as well as to ensure that the process serves to strengthen the future Timorese judiciary

185. The Commission recommends that the cases related to the events of April and May 2006 be heard within the district court system of Timor-Leste. It recommends further that where, under the Criminal Procedure Code, trials involve a panel, that the panel be comprised of two international judges and one national judge, and where the matter involves a single judge, that judge be an international judge.

Office of the Prosecutor General

186. The Office of the Prosecutor General is established under the Constitution as an independent organ tasked with the investigation and prosecution of criminal cases and State defence in civil litigation. The Prosecutor General, who heads the Office, is appointed by the President for a term of four years. Under the Constitution, deputy prosecutors general may also be appointed by the President. The criteria for such appointments are further set out in the Statute for the Public Prosecution Service. The body of oversight, the Superior Council for the Public Prosecution Service, has yet to be established.

187. The Office is currently staffed by the Prosecutor General (who was recently reappointed for a four-year term), together with five international prosecutors and nine probationary national prosecutors. Due to the turnover in staff and limitations of resources, the Office faces a considerable backlog of cases. As of April 2005 this backlog numbered some 2,500 cases.5 The Secretary-General reported to the Security Council in April 2006 that improved case management systems had been introduced in the Office of the Prosecutor General, but noted that ”institutional capacity … remains fragile”. 6 From its discussions with the Office, it is apparent to the Commission that cases arising out of the recent crisis would be given a particular priority. However, in order for this not to impact negatively on the existing system, additional resources would be required.

188. The capacity of the Office of the Prosecutor General to carry out investigations and prosecutions impartially and absent political interference is of fundamental importance. The 5 End of mandate report of the Secretary-General on the United Nations Office in Timor-Leste (S/2006/251), para 15. 6 Ibid., para 15. Commission has had the benefit of the report of the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (then East Timor) in 1999 (see S/2005/48). That evaluation noted with concern the Prosecutor General’s interpretation that his accountability to the President under the Constitution required him to follow the policy of the latter in relation to prosecutions. The Commission of Experts concluded that the Office of the Prosecutor General did “not at present function independently from the State of Timor–Leste” (ibid., annex II, para. 78). The Commission is of the view that the situation remains unchanged.

189. The Commission received reports that the current handling of investigations and prosecutions in relation to the events of April and May 2006 is being influenced by political considerations. In particular, it has been alleged that there is a selectiveness of approach brought about through political pressure. The currency of criticism in the public domain is indicative of a lack of public confidence in the impartiality of the investigation and prosecution process. The Commission has received submissions calling for a senior international prosecutor to oversee the process of investigation and prosecution so as to engender public confidence in that process. The Prosecutor General expressed the view to the Commission that the Timorese probationary prosecutors have been and continue to be wary of prosecuting such high-profile cases involving political actors.

190. For all of the foregoing reasons, the Commission is of the view that international actors should play the lead role in conducting the investigations and prosecutions, as recommended in section IV above. They should be supported by national actors. This would require the appointment of a senior international prosecutor to provide independent leadership of the prosecution of these cases. This senior prosecutor would work within the existing system, but must have a clear mandate to prosecute impartially and without political interference. The preferable avenue would be for the President to appoint a deputy prosecutor general. The alternative is the appointment of a senior prosecutor within the Office of the Prosecutor General.

191. The Commission recommends the appointment of a senior international prosecutor as Deputy Prosecutor General with a clear mandate to investigate and prosecute the cases related to events of April and May 2006 impartially and without political interference.

192. The Commission recommends that international legal actors undertake the lead role in investigations and prosecutions, supported by national prosecutors.

193. Adequate resources must be made available to support the investigation and prosecution work.

194. The Commission recommends that the prosecutors have access to dedicated police and investigation personnel, adequate administrative, translation and research staff, as well as necessary logistical support. The Office of the Public Defender

195. The Office of the Public Defender is currently staffed by seven national probationary public defenders and three international public defenders. Its operations are still governed by UNTAET legislation governing the “Legal Aid Service”, although it was reported to the Commission that the Government is preparing a new law to regulate this Office. Like other parts of the judicial sector, the Office of the Public Defender is under-resourced both in terms of personnel and infrastructure.

196. In order for the Office of the Public Defender to fulfil its mandate, a substantial input of resources will be required. Currently, the Office faces a lack of transportation which leads to difficulties in gaining access to witnesses and bringing them to court. Funding issues also arise in relation to supporting the appearance of witnesses in Dili, as there are insufficient funds to provide for the board and lodging of such witnesses. Due to their limited numbers, problems have arisen in relation to ensuring regular communication between public defenders and their clients.

197. The Commission stresses that fair trials require access to a robust defence system in accordance with the principle of “equality of arms”. The Commission recommends that the resources of the Office of the Public Defender be augmented, particularly in relation to the employment of further international public defenders, investigators, translators and administrative support staff and the provision of adequate logistical support.

Addressing additional issues associated with trial processes

198. As noted in paragraph 176 above, the judicial system is weak. It is apparent to the Commission that there are particular challenges which much be addressed relating to the administration of all court sectors. The courts face significant challenges with translation facilities, now compounded by the involvement of further international players in the form of international police actors. The current level of translators and interpreters will not be adequate to provide the requisite support for the court, the Office of the Prosecutor General and the Office of the Public Defender, nor to assure that the accused will understand the proceedings. Weaknesses in the area of management and administration related to the processing of cases require attention in the court, the Office of the Prosecutor General and the Office of the Public Defender. While the Ministry of Justice together with the United Nations Development Programme has devised a strategic plan to improve the court system, it is evident that further resources are required to implement these strategies.

199. The Commission recommends that increased resources be directed towards strengthening the administration and translation services of the court, the Office of the Prosecutor General and the Office of the Public Defender.

200. Security in the courts is extremely limited, exposing judges, prosecutors, defenders, the accused, witnesses and court staff to risk. Concern has been expressed by court actors about security arrangements outside the court premises. Security mechanisms for the appropriate safekeeping of information and records are also inadequate.

201. The Commission recommends that adequate security be provided for court actors and premises.

Witness protection

202. A key issue in relation to facilitating appropriate investigation and prosecution of criminal conduct is to ensure that those persons with relevant information are willing to come forward to authorities and, where relevant, to testify in court. The Commission has been advised repeatedly (including by authorities within the judicial system) that this presents particular difficulties in relation to the events of April and May. Given the nature of the parties involved and the ongoing security crisis, witnesses are reluctant to approach authorities and may be reluctant to testify given the potential ramifications for them and their families. At present, there is no witness protection programme in place in Timor-Leste.

203. The Commission recommends that the Ministry of Justice take steps to ensure the physical safety of witnesses as required.

B. Augmenting international support

204. In the light of the Commission’s recommendations that international actors play a central role in handling cases arising out of April and May 2006, it is vital that experienced and qualified personnel be available and deployed rapidly to undertake these functions. The United Nations Development Programme has already launched an appeal for funding to support an additional three judges, three prosecutors, two public defenders and corresponding support staff (in terms of clerks and interpreters) to deal with the anticipated cases. The Commission strongly supports international assistance in this regard. The Commission has heard from a number of interlocutors that the current process of recruitment of international personnel is unnecessarily limited by language requirements and lacks flexibility and timeliness. In order to expedite the process and ensure that sufficient qualified personnel are available, the Commission supports exploring means of broadening the base of potential candidates. For instance, use could be made of professional legal networks to disseminate vacancy notices. The Commission notes that the requirement that candidates be fluent in Portuguese is a constraining factor. Consideration should be given to relaxing this requirement.

205. The Commission recommends that consideration be given to broadening the pool of candidates for these positions in order to maximize the ability to recruit the most qualified persons. In particular, consideration should be given to widening the advertising of posts by targeting professional associations and modifying the language requirements for the positions.

206. The Commission recommends that donors consider favourably the requests for further support of the judicial sector in Timor-Leste, specifically the extra resources required to handle the cases arising from the crisis. The prisons

207. During the period of the Commission’s investigation, 57 people escaped from custody at Becora Prison. This included a number of persons arrested in relation to events in April and May. The Commission notes its concern at the evident lack of security at the detention facility.

208. The Commission recommends that immediate attention be given to enhancing the security of the detention facilities of Timor-Leste.

Monitoring the progress of cases

209. The Commission underlines the importance of monitoring the progress of cases relating to April and May 2006. This is central to ensuring transparency and enhancing public confidence in the system. The Commission is aware of existing monitoring efforts undertaken by domestic human rights NGOs and the United Nations. However, it would recommend the adoption of further initiatives.

210. The Commission recommends that part of the Annual Report of the Prosecutor General to Parliament deal specifically with the progress of cases linked to the events of April and May 2006. The Commission recommends that the Office of the Prosecutor General disseminate information regularly concerning the progress of these cases through an outreach programme.

211. The Commission encourages the Office of the Provedor for Human Rights and Justice, UNMIT and NGOs to continue monitoring the progress of cases related to the events of April and May.

C. Use of traditional justice/reconciliation processes

212. During its investigation the Commission has become aware of the importance of the traditional justice system in Timor-Leste as well as of the example of the modified form of traditional justice provided for through the community reconciliation process of the Commission on Reception, Truth and Reconciliation for “less serious” criminal offences. The issue arose as to whether use might be made of a similar system in relation to some of the cases stemming from the events of April and May.

213. The Commission has concluded that cases identified in the present report need to be dealt with through the formal justice system. This accords closely with the community expectation for “justice” in terms of “formal justice”, in order to avoid a culture of impunity.

D. Other measures of accountability

214. Much of the present report thus far has been focused on identifying those persons and institutions responsible for the events. The Commission also recognizes the need to address the availability of remedies for persons who have suffered as a result of the events of April and May.
215. The key governmental human rights institution in Timor-Leste is the Office of the Provedor for Human Rights and Justice. Established under the Constitution, the body has been given powers to, inter alia, consider complaints regarding the abuse of public power (including by PNTL and FFDTL) and breaches of human rights. However, the Office of the Provedor does not have power to set aside decisions or to grant compensation. Instead, it is limited to making recommendations for remedies or reparations or advising on corrective measures and/or mediating complaints.

216. Other mechanisms are limited. Complaints of misconduct by PNTL can also be considered by the Professional Ethics Office and the Office of the Inspectorate. Internal disciplinary hearings can be held by F-FDTL. However, the focus of these bodies is on internal discipline rather than on victim-oriented remedies. As outlined in this section, the ability of the courts to undertake civil cases is limited and it is unlikely that the courts will be able to offer a real remedy in terms of carrying out any order for compensation following a criminal conviction. In cases where the offending conduct constitutes criminal conduct, the undertaking by the State of prompt investigation and the submission of such cases for prosecution will be one means of providing redress. However, consideration should also be given to other measures which will address some of the other recommended methods of reparation.

217. The Commission would, for instance, encourage the establishment of a national programme for reparations. This would not equate simply to monetary compensation. Instead, consideration should be given to the range of necessary measures including acknowledgement of the wrong doing, compensation for economically assessable damage, full public disclosure of the events in question (including through dissemination of this report), the establishment of rehabilitation programmes, and administrative sanctions against persons within institutions bearing responsibility. Measures to assist those whose family members were killed, acknowledgment by governmental authorities of their responsibility and explanations for what steps are to be taken to avoid a recurrence of violations appear to be of key importance to the community.

218. The Commission recommends that the Government provide reparations for those who have suffered as a result of the events of April and May, with particular attention given to persons who have suffered the death of a family member, significant injury and the destruction of their residences.

219. The Commission recommends that those institutions bearing responsibility for events in question, acknowledge publicly their responsibility for having contributed to the events.

220. The Commission recommends that special measures be taken to ensure the dignity and avoid the retraumatization of victims in any judicial or non-judicial processes.

.