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East Timor Legal New now on East Timor Law and Justice Bulletin

East Timor legal news continues on in the East Timor Law and Justice Bulletin. ETLJB covers the period from 2008 to the present. The archive and ETLB span almost a decade. It is by no means a comprehensive archive of legal news from East Timor but does cover many subjects and sources that have been of critical importance in the development of East Timor's legal culture since the catastrophic disintegration of the rule of law in 2006. Relates sources are East Timor Law Journal, East Timor Land Studies and United Nations Police in East Timor Security Reports for the period 2006-2008.

Thursday, April 11, 2013

Timor-Leste Legal News April 2008 (Part 3)

Mentally Ill Defendant Sent to Prison JSMP Press Release 4 April 2008

The Dili District Court heard testimony on 18 February and 17 March 2008 from the defendant, victim and an expert on mental illness in a case of attempted murder.

The trial was presided over by a panel comprising international judge Vitor Hugo Pardal and two national judges, Deolindo dos Santos and Antonino Gonçalves. The prosecution was represented by Felismino Cardoso (international) and the defendant by public defender Olga Nunes Barreto (national).

The public prosecutor had laid charges under Article 53 (2) of the Indonesian Penal Code, alleging attempted murder, the intended victim being the defendant’s own wife.

The defendant was kept in pre-trial detention at the Becora Corrections Facility from 11 May 2007. In his testimony to the court, the defendant admitted slashing the victim three times with a machete but claimed his actions were not premeditated. The court also received information that the defendant was receiving medical treatment due to signs that he was suffering from a mental illness.

To provide another perspective on the defendant’s state of mind, the court heard from expert witness Dr. Chamilou Selsel. Dr. Selsel stated his examination of the defendant had found no conclusive evidence of mental illness.

The defendant’s wife, and the target of his violence, also testified. She stated that since 1999 the defendant would often sit alone and talk to himself. At other times, he would scream abuse and strike her without warning.

The panel of judges, in its final decision, acquitted the defendant from all charges on the grounds of mental illness, pursuant to Article 44 (2) of the Indonesian Penal Code, which allows a judge to order committal and/or probation on mental health grounds.  Accordingly, the defendant is to be held in protective custody at the Becora Correctional Facility for a period of one year, to be reviewed after six months.

The court indicated that protective custody was needed to prevent the defendant from posing any danger to himself or to the community.  It was noted that the defendant was not convicted, but rather was ordered to undergo mental health treatment. As the court was unable to identify any facilities in Timor-Leste able to suitably house a potentially unstable patient, this period of treatment is to be undertaken at the Becora prison.

It appears the panel of judges gave considerable weight to the testimony of the victim, whereas the findings of expert witness Dr. Selsel were rejected.

Article 165 of the Timor Leste Criminal Procedure Code states that “the court shall freely assess the result of the proof obtained by means of recognition”. Judges are hence able to come to their own assessment of the facts. Furthermore, Article 121 (2) of the RDTL Constitution states “in performing their functions, judges are independent and owe obedience only to the Constitution, the law and to their own conscience”. This suggests that the testimony of expert, and other, witnesses may be balanced according to the judges’ own appraisal of circumstance, in keeping with these factors alone.

On the issue of expert opinion, Article 162 (2) of the Timor Leste Criminal Procedure Code states “where the conviction of the judge diverges from the judgment contained in the expert reports, the judge shall substantiate the reasons for his or her dissenting opinion”. The court’s rationale for an acquittal on the basis of mental illness, against expert testimony, has not been made entirely clear in this matter.

JSMP is concerned about the placement of the defendant in the Becora Corrections Facility for treatment, particularly considering the defendant was kept there for almost a year in pre-trial detention. It is uncertain what therapeutic value this environment will provide. Additionally, a failure to sufficiently distinguish between criminals and the mentally ill adds to an already worrying stigma.

The lack of appropriate public facilities for the mentally ill is not only a matter of public health but one also of social justice. JSMP calls on the government to respond to this issue not only with legislation and policy statements, but also a practical commitment to providing dedicated infrastructure.
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UNMIT Daily Media Review 10 April 2008

RTL News Coverage

Horta gives total support to investigators - The Prosecutor-General Longuinhos Monteiro has said that President José Ramos-Horta is totally supporting the investigations into the events of February 11. Mr. Monteiro said that he had informed the President on the progress of the investigation, including on the evidence gathered to date. He said that the briefing satisfied the President.

Lasama: State to use force against Salsinha - Acting President Fernando Lasama de Araujo said that that the state will use military force to resolve the problem of Salsinha. The Acting President said that the use of force will ensure that Salsinha and his men surrender immediately. He also said that the State would bear the responsibility for any criticisms towards the Joint Operation Command.

Print Coverage

Fretilin asks AMP to be humble - Fretilin MP Estanislau Aleixo da Silva has said that the Government should humble itself by seeking contributions from all Timorese people to solve the problems of the country. "As we have seen, the problems of the IDPs and the petitioners have become national issues. But the government has not thought to ask the people how they think the problems can be solved," said Mr. da Silva on Wednesday (09/04) in National Parliament. (DN)

Ramos-Horta asks PGR to further investigate February 11 - During the visit of Prosecutor General Longuinhos Monteiro to the President on Monday (7/4/00) in Darwin, Australia, President Jose Ramos-Horta called on the Public Ministry to further investigate the events of February 11. "The explanation and information that I presented to the President was based on the facts uncovered from the investigation. The President was delighted and supports us in continuing to investigate the case further." said Mr. Longuinhos. (TP)

Arsenio denies involvement with Alredo - Responding to rumours, Fretilin MP Arsenio Bano has denied that he had any contact or relations with Alfredo Reinado Alves. Mr Bano called on the Prosecutor General to resign from his role as he had made contact with Alfredo Reinado and his men. (STL)
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Fretilin Parliamentary Group
National Parliament
Media Release Dili 10 -04-2008

FRETILIN demands de facto PM Gusmao to sack his Deputy

The FRETILIN parliamentary group, using documentary evidence, demanded in the National Parliament this Tuesday (8 April 2008) that de facto Prime Minister Xanana Gusmao sack his deputy, Jose Luis Guterres, and that he initiate an investigation into transfers authorized by Mr Guterres of public funds to increase his wife's salary as a diplomat in New York, whilst he was Minister for Foreign Affairs and Cooperation.

The matter was raised by FRETILIN MP Ilda Da Conceicao on behalf of the FRETILIN parliamentary group.

"In February this year FRETILIN first raised this matter in the parliament regarding Mr Jose Luis Guterres for his action as Foreign Minister in authorizing the Ministry of Finance to transfer an extremely high salary to his wife who was then employed at Timor-Leste's UN mission in New York, USA," she said.

"FRETILIN considers this case to be grave given that it involved an abuse of power, corruption and nepotism," said Da Conceicao.

When FRETILIN presented this case in February, other MPs demanded proof, and so today FRETILIN presented proof by way of an excerpt from an email written by Mr Guterres' wife herself in June 2007, stating the following:

"The transfers made into my personal account by the Ministry of Finance to date were respectively $10,673.33 on 24 November (being for the first quarter) 2006, $8,005.00 on 11 January (being for the second quarter) and $18,667.14 on 11 April (being for the third quarter) which can certainly be verified with the Ministry of Finance. I only became aware at the time I sought verification that by law, even though I possess a Timorese Diplomatic passport, I do not have citizenship rights because I have not lived in Timor-Leste for a minimum of eight years. For this reason I could not be classified as a Diplomat for contractual purposes nor for entitlements."

MP Ilda Da Conceicao explained: "Mr Jose Luis Guterres, as Minister of Foreign Affairs and Cooperation, knew that his wife, as a foreigner, could not be appointed as a diplomat at the Timor-Leste mission in New York. So why did he make this decision? Is this not an abuse of power, corruption and nepotism?

"We also know that Mr Guterres' wife used the funds to purchase a grand piano in the US," said Da Conceicao.

The FRETILIN MP also explained that the government, headed by His Excellency Mr. Jose Alexandre Gusmao already knew of this case, but until now, has not done anything. Why? This shows that the government does not have transparency in its affairs and lacks integrity. It shows clearly that the government is covering up one of its members.

"We from FRETILIN requested the parliament executive to take this matter up with the government but until now we have not heard anything further," said Da Conceicao.

"Once again we demand H.E. Mr. Jose Alexandre Gusmao as head of the government to dismiss Mr. Jose Luis Guterres from the government and initiate an investigation into this case of his authorization of transfers of funds to increase his wife's salary as a diplomat in New York," Da Conceicao concluded.
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UNMIT Daily Media Monitoring 09 April 2008

TVTL News Coverage

Guterres appeals to Salsinha to cooperate - The Acting President of the National Parliament, Vicente Guterres, has appealed for Salsinha and his group to cooperate with the Joint Operation and to avoid confrontation. "As the representative of the people, I am appealing to Salsinha to collaborate with the state. It is better for him to submit himself to solve the problem," said Acting PR of the National Parliament. 

RTL News Coverage

Ramos-Horta vows to serve people on his return - Through a direct interview with TVTL on Tuesday (8/4), President Ramos-Horta vowed that he would continue to serve the people upon his return from Darwin, Australia. The President said that he has recovered and is planning to return to Timor-Leste in a short time to continue as the nation's President. PR Ramos-Horta also said that he would consult with Bishops and other Timorese people before making a decision to resign.

Print Coverage

Ramos-Horta can't promise he can lead for next 5 years - President José Ramos-Horta said that he is not promising he can continue as the Chief of the State for the next five years. "I will inform the National Parliament when I get back. I will not promise to lead for the full term," said the President. "I should be sensitive to what the Bishops and East Timorese people say," said PR Ramos-Horta to The Australian on Monday (7/4) in Darwin, Australia. (TP)

Joint Operation asks people not to believe rumours - The Commander of  F-FDTL/PNTL Joint Operation, Lieutenant Colonel Filomeno Paixão, has asked community members in the district of Ermera to not believe the rumour that Susar has died in prison. "In Ermera, some people are spreading the rumours that Susar has died in prison. We have asked the media [TVTL] to film Susar in prison," said Commander Paixão on Tuesday (8/4) in Memorial Hall, Dili. "Susar is in good health and is maintaining contact with the Joint Operation and the Public Ministry." Commander Paixão also confirmed that the Joint Operation is going to enter the third phase (muscular operation). The Australian Forces will assist with helicopters to support logistics and the evacuation of soldiers during the operation. (TP)

Paixão confirms launch of Joint Operation - During a press briefing held on Tuesday (8/4) in the Memorial Hall-Dili, Commander of the Joint Operation Lieutenant Colonel Filomeno Paixão said that following the decision made by the Joint Operation, the serious military operation against Salsinha and his men would start today (Wednesday 9/4). He also confirmed that the rebel's stronghold has been identified. (DN)

Fretilin agrees that Salsinha should surrender when Horta returns - Fretilin MP Antoninho Bianco agrees that Salsinha and his group should surrender before the return of President Ramos-Horta. "Salsinha's suggestion that he will only surrender to PR Ramos-Horta is acceptable as it requires only a short time for the recovery of the President. Everything will go peacefully," said Mr. Bianco on Tuesday (8/4) in the National Parliament. Mr. Bianco said that Fretilin's intention is not to hold back the operation, but only to voice an opinion as to the best way to avoid bloodshed in this country. (DN)

Alkatiri: IICI stall shows no respect for NP decision - Former Prime Minister Mari Alkatiri has said that the Government is not respecting the decision of the National Parliament by stalling the establishment of an International Independent Commission for Inquiry (IICI). "The Government has made the mistake and seems to give no respect to the decision of the National Parliament. It shows clearly that a dictatorship is starting to enter the nation. I have called and told some of them [MPs] that it is a mistake, and it is against the law," said Mr. Alkatiri.   Separately, Vice Prime Minister Jose Luis Guterres said that the establishment of an IICI is still under discussion and requires consultation with the judicial organs in Timor-Leste. "The Council of Ministers decide to consult with the judicial sector to establish an IICI," said Mr. Guterres. (DN)

Paixão: Four of Salsinha's men surrender - The Commander of the Apprehension Operation, Filomeno Paixão, has confirmed the surrender of four of Salsinha's men to the Apprehension Operation forces on Tuesday (8/4). Three of the men were former members of the F-FDTL, and one was a former member of the BPU, (Border Patrol Unit). They also surrendered one AK33 rifle. (STL)

PM inspects President's residence - Prime Minister Xanana Gusmao has inspected Ramos-Horta's residence in Metiaut. The Prime Minister was accompanied by Brigadier-General Taur Matan Ruak and other officials from the Government. They were welcomed by the Horta's brother, Arsenio Horta, on Tuesday (8/4) at the President's house. The inspection aimed to uncover the chronology of events on February 11. Mr Horta showed them where Alfredo's body had laid and the place where the President was shot. (STL)

Treason to hide or feed Salsinha - The Commander of the Military Police, Abel Ximenes, has declared it an act of treason to feed or hide Salsinha or any of his men. He added that the Apprehension Operation will treat the people who support Salsinha through the provision of food and supplies (including phone cards) as criminals. (STL)

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