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Name: EURICO GUTERRES
Place of Birth: Vatolari
Age/Date of Birth: 28 years/July 17, 1974
Sex: Male
Nationality: Indonesian
Address: Jln. W.R. Monginsidi III/5 Kupang
Religion: Catholic
Occupation: Former Deputy Commander of Pro-Integration Forces (PPI)
The Defendant has not been detained.
The Defendant, defended by his Lawyer Team: SUHARDI SOMOMOELJONO, S.H. et.al.,
based on Specific Letter of Power of Attorney (Surat Kuasa Khusus) dated on
June 26, 2002:
The Human Rights Ad Hoc Court;
After reading files related to the case;
After reading the Chairman of Human Rights Ad Hoc Court Central Jakarta
Decree No.04/PID.HAM/AD.HOC/2002/PH.JKT.PST., dated on June 3, 2002,
concerning the appointment of the Judge Panel who presides and rules over
the case;
After reading the Chairman of Human Rights Ad Hoc Court Central Jakarta
Decree No.04/PID.HAM/AD.HOC/2002/PH.JKT.PST., dated on June 20, 2002,
concerning the decision on the trial day;
After hearing the indicment letter read by the Ad Hoc Prosecuting Attorney,
No. Reg. Case: 08/HAM/TIM-TIM/05/2002, dated on May 31, 2002;
After reading intermediate decision No.04/PID.HAM/AD.HOC/2002/PH.JKT.PST,
read by the Judge Panel on trial dated on July 18, 2002, which court order
states as follow:
1. To declare that the objections from the Defendant Lawyer Team could not
be accepted;
2. To declare that the indictment letter from Ad Hoc Prosecuting Attorney,
which was read on Thursday, June 26, 2002 meets the requirement, therefore,
it could be accepted as a basis for investigating this case;
3. To declare that Central Jakarta Human Rights Ad Hoc Court continue the
investigation on the Defendant EURICO GUTTERES;
After hearing:
Criminal charge of Ad Hoc prosecuting Attorney dated on October 31, 2002, on
Grave Human Rights violations in East Timor; which Court order states as
follow:
TO CHARGE
That the Judge Panel of Human Rights Ad Hoc Court on Central Jakarta
District Human Rights Court which presides and rules over this case should
issue a verdict that:
1. To declare that the defendant EURICO GUTTERES, according to law was
legally proven and convincingly guilty of committing a criminal grave human
rights violations in the form of Violation Against Humanity, as stated in
the first indictment as an infringement against article 42, paragraph (2) a
and b jis article 7 b, article 9 a and article 37 Law No 26, 2000 Concerning
The Human Rights Court, and the second indictment as an infringement against
article 42, paragraph (2) a and b jis. Article 7 b, article 9 h and article
37 Law No 26, 2000 concerning the Human Rights Court;
2. To sentence the defendant EURICO GUTTERES with 10 (ten) years jail;
3. To determine the evidences:
- 1 (one) Getau firearm/G-3 No. FMP.172322;
- 1 (one) SKS firearm No. OH.2289;
- 1 (one) Mauser firearm Los No.;
- 1 (one) Homemade firearm;
- 1 (one) Homemade Pistol;
- TNI Directive Commander:
No 02/P/ix/1999 dated on September 6, 1999, concerning the Military
Emergency Territorial Command of East Timor (Komando penguasa darurat
militer wilayah Timor Timur);
- Decrees (Surat Keputusan):
i. - Skep/991/P/XII/1998 dated December 31, 1998 concerning the Discharge
and Appointment within the Indonesian Army's Office (Pemberhentian dari dan
Pengangkatan Dalam Jabatan Di Lingkungan Angkatan Bersenjata RI/Indonesian
Army), for Maj. Gen. TNI I Gede Nyoman Asrana along with 99 personnel;
ii. - Skep/821/P/IX/1999 dated September 20, 1999 concerning the Use of
Authority of the Military Emergency Territorial Command of East Timor (Penggunaan
Wewenang Penguasa Darurat Militer Daerah Timor Timur);
- Letters of Order (Surat Perintah):
i. Sprin/757/IV/1999 dated April 15, 1999 concerning the Official Travel to
East Timor (Perjalanan Dinas Tim Tim) for Marsda Tamtomo along with three
personnel;
ii. Sprin/889/V/1999 dated May 10, 1999 concerning the Special Assignment to
Assist the Independent Commission (Bertugas Khusus Membantu Pelaksanaan
Komisi Independen) for Maj. Gen. Zacky Anwar Makarim along with two
personnel;
iii. Sprin/1096/VI/1999 dated June 04, 1999 concerning the Order to Maj.Gen.
Zacky Anwar Makarim along with two personnel as members of TP40KTT;
iv. Sprin/1660/VIII/1999 dated August 13, 1999 concerning Security Advisor (Sebagai
Penasehat Keamanan) P3TT in Dilli, East Timor for Maj.Gen. TNI Zacky Anwar
Makarim along with two personnel;
v. Sprin/1798/IX/1999 dated September 07, 1999 concerning the East Timor
Territorial Command (Penguasa Daerah Militer Wilayah Tim tim).
- Telegrams:
i. TR/614/1999 dated June 17, 1999 concerning the Security Guarantee in East
Timor;
ii. STR/675/5/1999 dated July 6, 1999 concerning Popular Consultation for
East Timorese;
iii. STR/551/1999 dated September 5, 1999 concerning the Anticipation of
Developing Situation in East Timor Territory.
- Reports of Situation (Laporan Situasi):
i. STR/560/1999 dated September 22, concerning the Report of Situation of
the Fourth Week dated September 14 to 20, 1999;
ii. STR/17/2000 dated January 20, 1999 concerning the Report on the
Indication of Worsening Security Situation in East Timor;
iii. R/33/1999 Lapsit dated October 11, 1999 concerning the Report of the
Development of the Situation in East Timor on October 11, 1999.
- Others (Special Report / Laporan Khusus):
i. R/184/Lapsus/IV/1999 dated April 7, 1999 concerning the Clashes between
Pro Integration and Anti Integration People in Liquica Regency;
ii. R/02/X/1999/Lapsus dated October 11, 1999 concerning the Chronology of
Incident on Gunshoot Contact between Interfet and TNI (Indonesian Army) and
POLRI (Indonesian Police) Troops;
iii. Suggestion from Pangdam IX/Udayana as Pangkoops TNI Nusara dated
September 7, 1999;
iv. STR/551/1999 dated September 5, 1999;
v. STR/553/1999 dated September 6, 1999;
vi. Letter of Order (Surat Perintah) from TNI Commander No.:
Prin/1798/P/IX/1999 dated September 7, 1999;
vii. STR/253/1999 dated April 13, 1999;
viii. STR/550/1999 dated August 31, 1999;
ix. STR/558/1999 dated September 3, 1999;
x. Letter of Order No.: Prin-/1000/VII/1998 dated July 30, 1998;
xi. TR/614/1999 dated June 17, 1999;
xii. STR/172/1999 dated May 5, 1999;
xiii. STR/223/1999 dated March 1999;
xiv. Examination (not visum et repertum) provided by 2nd Lieutenant CKM dr.
Maksum Pendelima;
xv. Situation Report No.: R/ / Lapsit/IX/1999;
xvi. Situation Report No.: R/ /IX/1999/Lapsit;
xvii. Special Report No.: R/ /Lapsus/IX/1999 dated September 22, 1999;
xviii. TR/909/P/1999 dated September 7, 1999;
Were attached in case files to use in another case.
4. Sentence the defendant to pay fee of the case of Rp.5.000,- (five
thousand rupiahs);
After hearing the Defendant's defence, as detailed in a Pledoi titled
"Salahkah aku membela Merah Putih" ("Am I Wrong to Defend the Red and
White"), which on the main point concludes:
1. The Defendant's position as AITARAK Commander and Deputy Commander of PPI
actually is only a name or a label name, therefore the criminal deeds
committed by people have no relation with the Defendant, the Defendant
distinctively stated that the incident in Manuel Viegas Carrascalao's
residence on April 17, 1999 which resulted in wounded and dead people was
not the Defendant's responsibility and the Defendant was innocent;
2. Because Manuel Carrascalao Viegas had a personal conflict with other
people in land issues, political rivalry, matters on project quarrel,
morality issues, political power, which accumulated in political resentment
as well as personal resentment. Therefore, the Defendant did not know who
was behind the clash. The Defendant thought that there was a certain party
who was playing in the dirty water. Should AITARAK and the Defendant take
the responsibility?
3. If a clasification among people who were opponent to Manuel Viegas
Carrescalao was done truthfully, then almost all people, as many people had
a thousand feeling towards Carrascalao brothers, but the Defendant who had
been his neighbor for a long time had never had a problem. If the Defendant
ever had a criminal intention towards Manuel Viegas Carrascalao he did not
need to wait until April 17, 1999 to do something, therefore the Defendant
had no motivation to harm the Manuel Viegas Carrascalao's family and other
innocent people who were inside Manuel Viegas Carrascalao residence at that
time.
4. The Defendant realized and understood the meaning of Red and White Flag,
therefore he never imagined to tarnish the reputation of Red and White that
the Defendant loves by committing a criminal or violating other people's
lives;
Therefore, the Defendant objects the Ad Hoc Prosecuting Attorney's indicment
and charge;
After examining:
The Pledoi from the Defendant's Lawyer Team delivered in trial dated
November 7, 2002, stated that based on the legal facts revealed in the
trial, the actions committed by the Defendant EURICO GUTTERES did not meet
the items of charged Articles, therefore the Defendant was not proven of
committing a Grave Human Rights violation in East Timor as it was charged on
him, therefore the Defendant EURICO GUTTERES's Lawyer Team had pleaded to
the Panel of Judges to sentence, as follow:
1. Declare that the Defendant EURICO GUTTERES was legally and convincingly
not proven of committing a Grave Human Rights violation in East Timor as it
was charged on him in the Ad-Hoc Prosecutor's Indictment.
2. Free the Defendant EURICO GUTTERRES from the first and second charges.
3. Restore the Defendant EURICO GUTTERRS's rights, dignity and capability.
4. Order to return all evidences of the case to the rightful owner, except
those which have to be included in the dossier.
5. Order the State to pay all related expenses.
Examined too:
- Ad-Hoc Prosecuting Attorney's Replik delived at trial on November 11,
2002, which persists on the charges;
- The Defendant EURICO GUTTERRES's and the Lawyer Team's Duplik at trial on
November 14, 2002, which persists on their pledoi;
Considering that according to the Ad-Hoc Prosecuting Attorney's indictment
dated on May 31, 2002, No. Reg.Case: 08/HAM/TIM-TIM/05/2002, the Defendant
was charged with charges as follow:
ONE:
The defendant Eurico Gutteres as a Superordinate or Deputy Commander of a
group called themselves as the Integration Forces and or Superordinate /
Commander of Aitarak Group in which the defendant as a superordinate was
criminally responsible for grave human rights violation committed by his
subordinates under his authority and effective control, on Saturday, April
17, 1999, or some other times in April 1999, located in front of East Timor
Governor office in Dilli and at Manuel Viegas Carrascalao's residence in Jl.
Antonio de Calvanho No. 13 Dilli or in other places where Human Rights Ad
Hoc Court at the Central Jakarta District Court has the authority to preside
and rule over based on Article 2, Presidential Decree No. 96/2001 dated
August 1, 2001 concerning the amendment of Presidential Decree No. 53/2001
on the Establishment of Human Rights Ad Hoc Court at the Central Jakarta
District Court did not exercise proper and appropriate control on his
subordinates, herewith the defendant as a superordinate of Aitarak group and
or deputy commander or superordinate of the integration Forces who gathered
pro integration masses with regard to popular consultation/ballot and fought
for people who demanded autonomy, knew or deliberately ignored information
obviously showed that his subordinates were committing or had just committed
grave human rights abuses consisting of crimes against humanity in the form
of murder committed in part of a widespread or systematic attack, in which
he knew that the attack was directed against civilians and the defendant did
not take any appropriate and required acts under his authority to prevent or
quell the deeds, which then resulted in attack and murder of people who were
at Manuel Viegas Carrascalao's residence in Jl. Antonio de Carvalho No. 13
Dilli, East Timor which at that time occupied by 136 refugees from Maubara,
Liquisa, Turiscai, Alas, Ainaro and around Dilli or did not surrender the
prepetators who were Aitarak group or forces and Integration Forces which
were under his authority and effective control to the authorities
responsible for investigation, question, and prosecution.
The defendant's actions were committed as follows:
- On Saturday, April 17, 1999 around 9.00 a.m. Eastern Indonesian Time, the
Pam Swakarsa inauguration Big Rally was held attended by among others Abilio
Jose Osorio Soares (East Timor Governor), Mathius Maia (Mayor of Dilli),
Joao Da Silva Tavares (Commander of the Integration Forces and Leader of
Halilintar group), Jose Ximenes (Member of Aitarak Group), and gathered in
front of East Timor Governor office, East Timorese from several regions such
as Besi Merah Putih group from Maubara, Liquisa Regency, Hallintar group
from Aermerah Regency, Aitarak group from Dilli Regency/Administrative City,
equipped with various weapons namely bows and arrows, spears, machetes,
knives, spikes, stabbers, firearms, and homemade firearms. At the rally, the
defendant who knew that his subordinates (Aitarak forces or group and
Integration Forces equipped with weapons and who were showing resentment
against Pro-Independence group) delivered his speech before his supporters,
and the words used, among others,
- All CNRT leaders should be exterminated
- Kill all CNRT leaders
- People who were pro independence should be killed
- Kill Manuel Viegas Carrascalao
- Carrascalao family should be killed
- Kill Leandro Isaac, David Dias Ximenes, Manuel Viegas Carrascalao,
- Kill Manuel Viegas Carrascalao's family
- In the meantime the defendant and his supporters or the group (Aitarak
forces or group and Integration Forces) knew that at Manuel Viegas
Carrascalao's residence on Jl. Antonio de Carvalho No. 13, Dilli, East Timor
at that time was occupied by 136 refugees from several regions around Dilli
such as Maubara-Liquisa, Turiscai, Alas and Ainaro.
- The refugees - among others Alfredo Sanches, Florindo De Jesus, Santiago
Do Santos, Victor Dos Santos, Saturnino de Oliviera - were at Manuel Viegas
Carrascalao's residence because they were afraid of the group who called
themselves the Integration Forces dan Aitarak group who was terrorizing,
intimidating them since January 1999 in several places such as
Maubara-Liquisa, Turiscai, Alas and Ainaro. And they (the refugees) took
shelter at Manuel Viegas Carrascalao's residence because they heard that
Manuel Viegas Carrascalao was a neutral group.
- Then, after hearing the defendant's speech at the rally in front of the
Governor office's coutyard, the mass consisted of group of Aitarak forces,
Integration Forces, after the Big Rally was over, marched towards and
attacked Manuel Viegas Carrascalao's residence which at that time housed 136
refugees and house of witness Leandro Isaac, and the defendant that had
delivered provoking speech did not attempt to prevent and quell masses under
his command/order or control for marching towards and attacking Manuel
Viegas Carrascalao's house and Leandro Isaac's house.
- Then, the masses consisted of Aitarak group among others: Ameo, Agus,
Idis, Jose Rineto, Lusiano and Andre, the Integration Forces together with
TNI troops who were wearing similar uniform like the Pro-Integration Forces'
uniform attacked and destructed Leandro Isaac's house in the means of
shooting with pistol 3 times towards the front door and 3 times towards
parking space behind the house and they destroyed everything inside the
house.
- After that, the masses attacked and murdered people who were inside Manuel
Viegas Carrascalao's house using various weapons, such as automatic weapons
which were commonly used by the military, homemade firearms, machetes and
spears. The attack resulted in several people who were at the Manuel Viegas
Carrascalao's house, namely:
- 1. Raul Dos santos Cancela
- 2 Afonso Ribeiro
- 3. Mario Manuel Carrascalao (Manelito)
- 4. Rafael Da Silva
- 5. Alberto Dos Santos
- 6. Joao Dos Santos
- 7 Antonino Do Soares
- 8. Crisanto Dos Santos
- 9. Cesar Dos Santos
- 10. Agustino B.X. Lay
- 11. Eduardo De Jesus
- 12. Januario Pereira
all were dead.
- Besides that, as a result of the attack they committed, Manuel Viegas
Carrascalao's house was destructed among others the doors and windows as
well as a car, computer, photocopy and faximile machines, and household
items.
- The defendant as a superordinate of Aitarak group and or deputy commander
or superordinate of the integration forces who was capable of controlling
his subordinates has known that his subordinates which were Aitarak group
and the integration Forces were showing resentment and were about to attack
in the form of murdering the masses who were inside Manuel Viegas
Carrascalao's house on Jl. Antonio De Carvalho No.13, Dilli but the
defendant did not take any appropriate and required acts or prevented his
subordinates for not committing or quelling the attack and murder of the
masses inside Manuel Viegas Carrascalao's house and he did not surrender the
perpetrators namely Aitarak forces or group and the Integration Forces which
were under his authority or effective control to responsible authorities for
investigation, question, and prosecution.
The defendant's deeds was ruled and criminally charged under Article 7 (b)
jis Article 9 (a), Article 42 paragraph 2 (a) and (b), Article 37 Law No.
26/2000 concerning the Human Rights Court.
AND TWO
The defendant Eurico Gutteres as a Superordinate or Deputy Commander of a
group called themselves as the Integration Forces and or Superordinate /
Commander of Aitarak Group in which the defendant as a superordinate was
criminally responsible for grave human rights violation committed by his
subordinates under his authority and effective control, on Saturday, April
17, 1999, or some other times in April 1999, located in front of East Timor
Governor office in Dilli and at Manuel Viegas Carrascalao's residence in Jl.
Antonio de Calvanho No. 13 Dilli or in other places where Human Rights Ad
Hoc Court at the Central Jakarta District Court has the authority to preside
and rule over based on Article 2, Presidential Decree No. 96/2001 dated
August 1, 2001 concerning the amendment of Presidential Decree No. 53/2001
on the exercise proper and appropriate control on his subordinates, herewith
the defendant as a superordinate of Aitarak group and or deputy commander or
superordinate of the integration Forces who gathered pro integration masses
with regard to popular consultation/ballot and fought for people who
demanded autonomy, knew or deliberately ignored information obviously showed
that his subordinates were committing or had just committed grave human
rights violation consisting of crimes against humanity in the form of abuses
against a certain group or collectivity formed by similarities in political
views, race, nationality, ethnic, culture, religion, gender, or other
reasons universally recognized as the matters prohibited by international
law which were committed in part of a widespread or systematic attack, in
which he knew that the attack was directed against civilians and the
defendant did not take any appropriate and required acts under his authority
to prevent or quell the deeds, which then resulted in attack and abuse
against people who were at Manuel Viegas Carrascalao's house among others
Victor Dos Santos (Apin), Alfredo Sances and Florindo De Jesus who were at
that time on Jl. Antonio De Carvalho No. 13 Dilli, East Timor together with
136 refugees from Maubara, Liquisa, Turiscai, Alas, Ainaro and around Dilli
or did not surrender the prepetators who were Aitarak group or forces and
Integration Forces which were under his authority and effective control to
the authorities responsible for investigation, question, and prosecution.
The defendant's actions were committed as follows:
- On Saturday, April 17, 1999 around 9.00 a.m. Eastern Indonesian Time, the
Pam Swakarsa inauguration Big Rally was held attended by among others Abilio
Jose Osorio Soares (East Timor Governor), Mathius Maia (Mayor of Dilli),
Joao Da Silva Tavares (Commander of the Integration Forces and Leader of
Aitarak group), Jose Ximenes (Member of Aitarak Group), and gathered in
front of East Timor Governor office, East Timorese from several regions such
as Besi Merah Putih group from Maubara, Liquisa Regency, Hallintar group
from Aemerah Regency, Aitarak group from Dilli Regency/Administrative City,
equipped with various weapons namely bows and arrows, spears, machetes,
knives, spikes, stabbers, firearms, and homemade firearms. At the rally, the
defendant who knew that his subordinates (Aitarak forces or group and
Integration Forces equipped with weapons and who were showing resentment
against Pro-Independence group) delivered his speech before his supporters,
and the words used, among others,
- All CNRT leaders should be exterminated
- Kill all CNRT leaders
- People who were pro independence should be killed
- Kill Manuel Viegas Carrascalao
- Carrascalao family should be killed
- Kill Leandro Isaac, David Dias Ximenes, Manuel Viegas Carrascalao,
- Kill Manuel Viegas Carrascalao's family
- In the meantime the defendant and his supporters or the group (Aitarak
forces or group and Integration Forces) knew that at Manuel Viegas
Carrascalao's residence on Jl. Antonio de Carvalho No. 13, Dilli, East Timor
at that time was occupied by 136 refugees from several regions around Dilli
such as Maubara-Liquisa, Turiscai, Alas and Ainaro.
- The refugees - among others Alfredo Sanches, Florindo De Jesus, Santiago
Do Santos, Victor Dos Santos, Saturnino de Oliviera - were at Manuel Viegas
Carrascalao's residence because they were afraid of the group who called
themselves the Integration Forces dan Aitarak group who was terrorizing,
intimidating them since January 1999 in several places such as
Maubara-Liquisa, Turiscai, Alas and Ainaro. And they (the refugees) took
shelter at Manuel Viegas Carrascalao's residence because they heard that
Manuel Viegas Carrascalao was a neutral group.
- Then, after hearing the defendant's speech at the rally in front of the
Governor office's coutyard, the mass consisted of group of Aitarak forces,
Integration Forces, after the Big Rally was over, marched towards and
attacked Manuel Viegas Carrascalao's residence which at that time housed 136
refugees and house of witness Iendro isaac, and the defendant that had
delivered provoking speech did not attempt to prevent and quell masses under
his command/order or control for marching towards and attacking Manuel
Viegas Carrascalao's house and Leandro Isaac's house.
- Then, the masses consisted of Aitarak group among others: Ameo, Agus,
Idis, Jose Rineto, Lusiano and Andre, the Integration Forces together with
TNI troops who were wearing similar uniform like the Pro-Integration Forces'
uniform attacked and destructed Leandro Isaac's house in the means of
shooting with pistol 3 times towards the front door and 3 times towards
parking space behind the house and they destroyed everything inside the
house.
After that, the masses attacked and murdered people who were inside Manuel
Viegas Carrascalao's house using various weapons, such as automatic weapons
which were commonly used by the military, homemade firearms, machetes and
spears. The attack resulted in several people who were at the Manuel Viegas
Carrascalao's house, namely:
- Victor Dos Santos (Apin), wounded on his middle finger or other parts of
his body
- Alfredo Sanchez was stabbed on his left back and left finger's foot or
other parts of his body
- Florindo De Jesus was cut on his right and left hands, and his right ear
was cut and shot or other parts of his body
- Besides that, as a result of the attack they committed, Manuel Viegas
Carrascalao's house was destructed among others the doors and windows as
well as a car, computer, photocopy and faximile machines, and household
items.
The defendant as a superordinate of Aitarak group and or deputy commander or
superordinate of the integration forces who was capable of controlling his
subordinates has known that his subordinates which were Aitarak group and
the integration Forces were showing resentment and were about to attack in
the form of murdering the masses who were inside Manuel Viegas Carrascalao's
house on Jl. Antonio De Carvalho No.13, Dilli but the defendant did not take
any appropriate and required acts or prevented his subordinates for not
committing or quelling the attack and murder of the masses inside Manuel
Viegas Carrascalao's house and he did not surrender the perpetrators namely
Aitarak forces or group and the Integration Forces which were under his
authority or effective control to responsible authorities for investigation,
question, and prosecution.
- The defendant's deeds was charged under Article 7 (b) jis Article 9 (h),
Article 42 paragraph 2 (a & b), and Article 37, Law No.26/2000 concerning
the Human Rights Court;
Considering that on the efforts to prove their indictment, the Ad Hoc
Prosecuting Attorney had delivered and presented the evidences in the form
of letters as attached in the dossier, as well as letters that were
presented in the court, and the evidences in the form of weapons as
mentioned in the list of the evidences, in the form of samples of weapons:
- 1 (one) Getau firearm/G-3 No. FMP.172322;
- 1 (one) SKS firearm No. OH.2289;
- 1 (one) Mauser firearm Los No.; (sic!)
- 1 (one) Homemade Firearm;
- 1 (one) Homemade Pistol;
Considering that the Ad Hoc Prosecuting Attorney had also presented 11
(eleven) witnesses in the court, they were:
Witness 1 ALFREDO SANCHES;
Witness 2 JULIO SOUSA;
Witness 3 DOMINGGUS BOAVIDA;
Witness 4 MANUEL VIEGAS CARRASCALAO;
Witness 5 Drs. BASILIO DIAZ ARAUJO MA;
Witness 6 JOSE AFFAT AMP;
Witness 7 SOEDJARWO;
Witness 8 ABILIO JOSE OSORIO SOARES;
Witness 9 JOAO DA SILVA TAVARES;
Witness 10 AGUSTINUS B. PANCARIBUAN;
Witness 11 DOMINGOS M. DORES SOARES, S.H., M.H.
The eleven witnesses had testified under oath before the court, their
testimonies were primarily as follow:
1. Witness Alfredo Sanches
Having sworn, testimonied primarily as follow:
The witness had been staying in Manuel Viegas Carrascalao's house as a
refugee since February 1999;
Before he became a refugee and before he was staying in Manuel Viegas
Carrascalao's house, the witness had stayed in Lebuaee Maubara, and ran to
Manuel Viegas Carrascalao's house because he was afraid to be forced to
become a militia member;
What the witness meant by militia were Militia groups of Aitarak, Besi Merah
Putih, Naga Merah which were Pro Integration;
On the April 17, 1999 when the witness was staying in Manuel Viegas
Carrascalao's house as a refugee, the witness heard from a radio news that
in the Dili Governor Office courtyard there was a big inauguration rally;
and at noon there was an attack on refugees who were staying in Manuel
Viegas Carrascalao's house, committed by TNI and the militia, in the form of
gunshootings towards the front of Manuel Viegas Carrascalao's house;
During the incident, the witness was behind the house, the witness saw a car
loaded with the Militia and TNI bumped into the front door, and then shot
the house, but the witness did not know the numbers of Militia and TNI
personnel who did the attack;
The witness with witness's friends Florindo de Jesus and Eduardo saw the
attackers were running and were climbing the stone walls at the back of the
house, then a military officer, named Antonio Besikau and Militia member
named Fransisco were coming, then Antonio Besikau shot to death Eduardo, and
Fransisco shot the witness with a homemade firearm, resulting in the witness
fell from the wall;
After the witness had fallen, he was stabbed twice by Fransisco with knife
and arrow, resulting in the witness got wounded (the witness showed before
the court the gunshot wound on his back, cut on his back, cuts on his chest,
near the armpit and on his hand);
The witness recognized the military officers named Antonio Besikau and
Fransisco beacause they were all Maubara natives;
As the result of the attack, the (11) eleven refugess who were inside Manuel
Viegas Carrascalao's house, including his son named Manelito Carascalao were
dead, whereas the injured among others were the witness and Florindo de
Jesus;
In addition to the military, there were many other militias joined the
attack whom the witness did not recognize, but the witness could
differentiate between the military and Militia: the military wore camuflage
uniforms and carried fireams, whereas Militias wore camuflage uniforms like
the uniform wore by the defendant in the court and wore red and white head
ties, carrying home made firearms, machetes and arrows, knives;
Before the attack took place, inside Manuel Viegas Carrascalao's house, only
refugees were there, no Falintil members were there, and no shooting started
from inside the house, but the Militia and military immediately attacked.
During the attack, the witness heard they were yelling that here were
hoodlums from Maubara, could not yet make a matchstick, but already wanted
an independence;
During the attack, it was not true that there were people crying to ask for
help from the Military or Militia, and during the attack, there were no
police came to help;
After the attack was over, then, the police and Red Cross came, later on the
witness was taken to the Wira Husada Hospital to be hospitalized and
underwent an operation and after more than one month in the hospital, the
witness started to recover;
The witness did not know who was the leader of the attack, the witness only
heard from radio news that there was a big rally, but did not hear the
content of the speech and after the rally, there was an attack to Manuel
Viegas Carrascalao's house;
The witness recognized and could differentiate the firearms commonly used by
the Military and Militia;
2. Witness Julio Sausa
The witness did not know the incident at Manuel Viegas Carrascalao's house
on April 17, 1999, because at the time the witness was at Maubara, but
before the Militia was leaving from Maubara, they said they would go to Dili
to attend a rally, and after they were back from Dili, the Militia said that
after the rally was over, they attacked Manuel Viegas Carrascalao's house
and said that all refugees inside the house were all killed;
Two days later, on April 19, 1999 eleven corpses from Maubara arrived who
were not listed as members of BMP (Besi Merah Putih Militia);
The leader of BMP was Manuel Souesa, and he was the one who initiated to
take the Militia to Dili, while the persons who asked to leave for Dili were
the District Head (Camat) and Subdistrict Military Commander (Koramil). The
witness knew about the issue, because before they departed, they had been
gathering in Maubara and they departed to Dili on 3 (three) trucks;
The one who brought 11 coffins on April 19, 1999 was army wearing official
army uniforms and the corpses were brought in a truck, then the corpses were
buried in Lebukee, Maubara in 11 graveholes;
The people who were present during the funeral were the District Head
(Camat) and Subdistrict Military Commander (Koramil), the Army, the Militia,
the victims' families, and among the killed whom the witness recognized was
Raul Dos Santos, the witness' relative;
Many people in Maubara were taking refuge to Dili because afraid to be
forced to become members of the Militia, and if they rejected, they will be
dead;
Every night people in Maubara should participate in guarding the post built
by BMP Militia, people were asked to bring firearms, beside, machetes were
already available in the post, knives, bullets made of concrete cement
(pieces of concrete cement block), matches which were used as homemade
amunition material;
3. Witness Dominggus Boavida
On April 17, 1999, the witness was in Maubara, the witness knew that in the
morning the Besi Merah Putih group departed from Maubara to Dili City to
participate in a rally in East Timor Governor Office courtyard;
At night, when the witness was taking part in guarding the post built by
Besi Merah Putih, the Militia who were back from the Dili City, told that
after the rally, they attacked Manuel Viegas Carrascalao's house and killed
all refugees who were in the house;
There were 12 refugees who were killed, among them 11 refugees were Maubara
natives, among the killed the witness recognized were Raul Dos Santos and
Alfonso, and Raul Dos Santos who was killed by Militia was the son of
witness' brother;
Two days later, on April 19, 1999 there were 3 trucks coming from Dili, one
truck brought the corpses, other trucks brought the army. The witness
recognized the army because they wore army's official camuflage uniforms,
carried firearms, wore stripped insignias on red and yellow colors on their
sleeves;
The witness was present in the funeral, the families' victims, the District
Head (Camat) and Subdistrict Military Commander (Koramil), Militia members
and Besi Merah Putih Commander Manuel Sousa as well as Military who took and
escorted the corpses;
The witness happened to get into the truck, the witness counted 11 black
coffins, and name of Raul Dos Santos written on one of the coffin and the
witness had a chance to see the condition of Raul Dos Santos corpse on the
face and on his body blood stain remained to be seen, then the corpses were
buried in Lebuae Maubara;
As far as the witness knew the Militia was Pro Integration group similar to
Besi Merah Putih, Aitarak, Naga Merah groups;
Something that differentiates the Army from Militia group was that some of
the Militia's clothes were preman (civilian), some of them wore camouflage
military uniforms, their weapons were machetes and homemade firearms,
whereas the army wore camouflage uniforms and carried usual weapons;
The Maubara's BMP group forced the people to participate in guarding the
post and the civilians were obliged to bring machetes, knives, arrows from
their houses, if the people did not want to join, they were beaten or
killed, the prove was the eleven corpses brought from Dili were the people
who had refused to list as BMP members and in fact many people from Maubara
fled to Dili because they were afraid to be forced to join BMP members;
4. Witness Manuel Viegas Carrascalao
The witness recognized the Defendant and as far as the witness knows the
Defendant was Commandant of Aitarak Militia and the aim of the Militia led
by the Defendant was a Military movement to defend the Integration with
Indonesia;
The Militia was supported by the Military/Indonesian Army (TNI). Many people
said about that and the Militia was established by the TNI, most of the
Militia members were jobless;
The names of Pro Integration Militias which the witness knew were, among
others, Aitarak, Besi Merah Putih, Saka Sera, Ablai groups and many others;
The Militia groups had a special relationship with the TNI, for example in
distributing weapons to the Militia, besides, without having support and
special links to the Military, they could not move freely, because at that
time in Dilli without any support from TNI, the Militia could not do
anything, and impossible to commit an attack to the witness' house;
On April 17, 1999, the witness' house had been attacked by Militia, at that
time the witness was not at home, because at that time the witness picked
his wife up at Dili's airport Comoro;
The witness knew that the house was going to be attacked by the Militia
after getting a phone call from Manelito Carrascalao, the witness' own son
telling that the Militia was going to attack the witness' house, then the
witness came to see the Military Post Commander (Danrem) Tono Suratman at
his home to ask for protection and tell that his house was going to be
attacked by Militia;
After informing Danrem Tono Suratman, he only mocked the witness, therefore
the witness then asked for a weapon to fight the Militia, but he only told
the witness to ask for a weapon to CNRT;
Therefore the witness did not believe in the TNI, and nor did he report to
the police to seek protection because they were the same, then the witness
went to Bishop Bello's house and on the way there, there was someone stopped
the witness' car and informing that his house had already been attacked by
Militia, the refugees had been killed including the witness' son Manelito;
The witness' son Manelito Carrascalao was murdered, he was slashed and shot,
and his neck was almost cut off by the Militia, when the Militia was
attacking the witness' house, in addition to the witness' son who was in the
house, they were children, mothers, youths who were came from Turiscai,
Alas, Ainaro, Liquisa all of them around 136 people, those who escaped from
the attack were only 60 people, the rest were missing, there was a corpse in
a well having been murdered by Aitarak group, but the witness did not see
any graves of the victims;
4 (Four) days after the witness' house was attacked, the witness came to the
house, there were many damages caused by gunshots on the walls and the
windows were shattered, a lot of bloodspots on the floor and on the wall;
Among the refugees who were inside the witness' house, there were people who
had ran away from their hometown to Dili, but had no places to stay and
nobody wanted to accommodate them because they were afraid, then the witness
took them off the streets and brought them to his house, there were people
who came by themselves and there were people who were brought by the witness
from their hometown;
The numbers of the refugees that the witness had ever been accomodated were
around 560 people, they came and went, and right before the attack happened,
the numbers of the refugees were around 136 people;
To give foods to the refugees, they did not get any support from the
government nor the UN, besides the witness who gave foods, many Dili people
symphatized and give rice and food to the refugees. Usually the refugees
came to Dili to take refuge because they were afraid of Pro Integration
Militia;
At the beginning the witness was a person who fight for integration, but
after the witness saw the TNI's heartless and cruel conducts on the people,
such as arresting and shooting people, then the witness did not support Pro
Integration anymore because it made people suffered;
When the witness was a member of East Timor DPRD TK I (Provincial
Legislative Council), the witness heard complaints from people about TNI's
conducts. When the witness was a member of East Timor DPRD TK I the witness
was fighting for the Pro Integration, during that time, the witness had been
offered a riffle gun and a pistol by Maj.Gen. Dading Kalbuadi, that was the
evidence of TNI's support to the Pro Integration Militia group;
When the Militia was attacking the witness' house, the Militia got support
from the Military/TNI because in Dili without any support from the
Military/TNI it was impossible for Militia to commit the attack, the
Military that supported the Militia was the Army's Special Forces
(KOPASSUS), but there were no Military officers from East Timor who were
members of the KOPASSUS, after the attack, there was no any effort to arrest
the perpetrators and Militia Commandant was the perpetrator together with
the Military;
It was difficult to differentiate the Militia and Military who committed the
attack, and the attack had been planned, because around 10 in the morning,
the witness heard radio news in the witness car, that the defendant Eurico
Gutteres delivered a speech, and said that the whole Carrascalao's family
should be killed;
The attack had been planned because the attack took place after the big
inauguration rally in front of East Timor Governor and after the Defendant's
speech in which he said he would kill the Manuel Viegas Carrascalao's
family;
The Militia was established by the Military/TNI, therefore it was a Military
movement which seek to defend the Integration;
The witness knew Pam Swakarsa and maybe there were difference with other
Militias, because the Militia was not wearing uniforms, Militia was formed
by the Military, whereas the Pam Swakarsa was not formed by the Military,
and Militia members have no jobs;
The witness heard that when the big inauguration was held in East Timor
Governor Office cortyard, it was attended by Governor Abilio Osario Soares,
Commander of the Provincial Police (Kapolda), Danrem, Regent of Dili (Bupati
Dili) and also the Army;
On the day of the incident, a lot of people informed the witness, whether it
was by phones, from the witness' friends, as well as from friends of the Pro
Integration group saying, "Manuel, you will be killed";
Because the witness was afraid to be killed, then the witness fled to Dili
Provincial Police Headquarters (Polda Dili), there were already more or less
than 200 refugees, the witness was taking refuge at Polda Dili for 9 (nine)
days;
Militia had a high comander and the one who became the Deputy Commander was
the Defendant who was also the Commandant of Aitarak, and Militia has a
special link with TNI;
The Defendant's speech, Eurico Gutteres which was broadcast on the radio
saying that the Carrascalao's family should be killed, the speech that the
witness heard from the radio was around 10-11 o'clock in the morning, then
around twelve o'clock the witness got a call from the witness' son Manelito
that the house was going to be attacked by the Militia, and the witness
heard that there was a person in Dili who had transcript of the defendant's
speech;
The witness truly recognized the voice of the speaker saying to kill the
whole family of Manuel Viegas Carrascalao was the Defendant's voice;
Based on the witness's information the defendant responded as follow:
The witness was an important Pro Integration figure who since 1975 had
fought for Integration to Indonesian Government;
Those delivered the speech was not only the Defendant himself and the
Defendant was never saying to kill the whole family of Manuel Viegas
Carrascalao because the Defendant was not that evil, and it was correctly
that the Defendant delivered a speech at that time;
Later on, given an opportunity by the Judges, the defendant presented
questions to the witness, whereas the witness explained that the witness
quitted from Pro Integration since human rights violations had been
committed by the Military;
5. Witness Drs. Basilio Dias Araujo MA.
The Defendant was correctly a Deputy Commander of Pro Integration Forces
(PPI), an organized organization which had its own Commander and Deputy
Commander who were simply selected among the group, they consisted of groups
and each group had its own Commandant, but the organizational structure was
unclear;
Originally, PPI derived from Partisan, a group fighting for Pro Integration
and was founded around 1975, after East Timor had become Indonesian
territory, later on they changed their form, from Partisan group to PPI,
Manuel Viegas Carrascalao was one of the leaders who were the founding
fathers of the PPI group;
At the beginning, this Partisan group was an anti Communist movement and the
members were those who waged arms and it developed into a Pro Integration
movement;
PPI was a group or an organization acknowledged by the UN, and the Defendant
as a Military Wing Leader often represented PPI in meetings held by the UN,
for example in DARE I and DARE II meetings attended by the UN, the PPI and
the FALINTIL, during the meeting the witness acted as a translator;
The witness knew that on April 1999, Manuel Viegas Carrascalao's house was
used as a refugee shelter, those civilians who asked protection from Manuel
Viegas Carrascalao and among the refugees there were people who were victims
of attack to Maubara Chapel, attacked by those coming from the forest, there
were also refugees who came from Ainaro, Maubarak around Dili and those
reported missing;
The refugee shelter at Manuel Viegas Carrascalao's house was often cunningly
used by Pro Independence group to spread news in order to get support,
saying that the refugees were those who asked protection to scapegoat the
government;
During the big rally on April 17, 1999 held in East Timor office courtyard,
the witness was present on the location of the ceremony because the witness
was a translation officer of the Governor, but the witness did not join the
ceremony;
The ceremony on April 17, 1999 took place around 9 until 11 o'clock in the
morning and there gathered more or less than 1000 participants from PPI,
Aitarak, Besi Merah Putih groups, all of them were Pro Integration group,
whereas from the Pro Independence group the witness did not know in detail
since the event was an activity of Dili Local Government;
The witness did not know whether the ceremony was a PPI activity or
Inaguration of Pam Swakarsa and the witness knew that on April 17, 1999 the
Defendant was present and delivered a speech, before the attack to Manuel
Viegas Carrascalao's house happened;
When the Defendant was giving a speech, there was a response from belows
(participants) saying kill, kill, kill, kill right away, whack right away,
because the defendant asked Manuel Viegas Carrascalao's responsibility;
The witness did not directly hear the Defendant instructing to kill
Carrascalao family, but when the defendant gave a speech, the witness heard
participant's voices yelling, kill, kill Carrascalao family;
Two hours later, an attack to the house and refugees inside Manuel Viegas
Carrascalao's house happened, but the witness did not see the attack
directly because between 11 to 13 the witness was at Korem to be Danrem's
translator;
The witness knew that Manuel Viegas Carrascalao saw the Danrem asking for a
weapon to protect himself because his house was going to be attacked, and at
that time he was accompanied by his daughter Maria Carrascalao;
On the ceremony the witness only saw the participants bringing weapons made
of wood, machetes commonly used by Timorese, there were participants wearing
uniform, civilian clothes, and the witness heard that 20 perpetators had
been arrested;
6. Witness Jose Afat AMP
The witness had been Head of Maubara District, Liquisa Regency since 1995
until 1999 when the witness was the District Head in 1999, government
activities was beginning to break down as disturbed by Pro Independence
groups;
Pro Independence group under CNRT created a shadow government, and took over
the District legal tasks to topple down the Indonesian Government;
In Maubara District, there were Pro Integration groups, namely, Aitarak,
BMP, PPI, MAHIDI groups, and Pro Independence group such as: RMA, LAKSAUR,
AIPESAK, CNRT, FALINTIL;
The Defendant was both the Aitarak Commandant and PPI Deputy Commander,
while PPI Commander was Joao Tavares; BMP group in Liquisa Regency was led
by Batallion Commander, Manuel Sousa and its subordinate Platoon Commander
whom the witness forgot his name;
The person who installed and inaugurated BMP group in Liquisa regency,
Maubara District was the Defendant Eurico Gutteres, the inauguration was
attended by 16.000 people, and TRIPICA Maubara District attended the BMP
installment and inauguration, this group spontaneously derived from Pro
Integration community to fight against CNRT, FALINTIL of Pro Independence
group who carried out terror and brutality, murder, and intimidation against
Pro Integration group;
Before the witness became Head of Maubara District, Pam Swakarsa had alredy
been established, under Governor instruction, the names of Pam Swakarsa
members were proposed by each of their Village Heads, then submitted to the
District Heads, then submitted to the Regent, and the witness himself had
proposed 30 names to the Regent;
The way the Pro Integration group such as BMP, Aitarak, MAHIDI in defending
and protecting themselves was by equipping themselves with traditional
weapons such as machetes, arrows, spurs, home made firearms;
The witness recognized the evidences presented before the court, namely,
home made firearms and SKS firearms, G3 automatic weapons (getmi) used by
the Pro Independence group;
On April 17, 1999, the witness got an invitation to attend an event held at
Dili Governor office courtyard to inaugurate Pam Swakarsa, thousands of
Aitarak and BMP masses participated in the rally, the witness came late,
only attended the event for 10 minutes;
The witness got information from Pro Integration community from Maubara who
were participating at the Big Rally saying that after the April 17, 1999 Big
Rally, an attack to Manuel Viegas Carrascalao's house happened, resulting in
deaths from Maubara and one more Manelito Carrascalao;
According to informations from people, after the Big Rally was over, the
rally participants marched around the city, and when passing Manuel Viegas
Carrascalao's house, they heard cries asking for help, and gunshots were
heard from Viegas Carrascalao's house, then an attack and clash between Pro
Independence and Pro Integration groups took place;
The distance between Manuel Viegas Carrascalao's house and the place where
the Big Rally was held was about 200 meters;
On APRIL 17 afternoon the witness participated in burying 2 dead victims
from Maubara in Lebukee Maubara, near the beach, was attended by the
families' victims, where there were new graves but not of the victims from
Manuel Viegas Carrascalao's house, and those who brought the corpses from
Dili were Agusto Botak member of BMP Liquisa and a member of Aitarak whose
name the witness forgot, the 2 corpses were brought by Colt Diesel vehicle;
The content of the speech that the witness remembered was the speech of Joao
Tavares who suggested and emphasized unity while about the speech of the
Defendant, the witness did not know exactly, the witness only heard that the
witness (sic!) delivered a speech at the ceremony;
The Pro Integration group who were involved in the incident at Manuel Viegas
Carrascalao's house were, among others, Aitarak Dili, BMP Liquisa, Darah
Ermera, Laksaur Suai/Covalima, Sakunar Okuse, Saka Bakao, Alpa Lapos Mahidi,
Dadarus Bobonaro, Halilintar Bobonaro, AHI Aliu, Ablai Same;
7. Witness Lieut.Col. TNI Sujarwo
The witness had been a Dandim 1627/Dili East Timor since August 9, 1999 to
September 17, 1999, in the hand-over ceremony from the former Dandim
Lieut.Col. TNI Endar Priyatno, in the letter of hand-over, it was mentioned
notable incidents in Dili East Timor;
One of the incidents that became center of attention was the incident at
Manuel Viegas Carrascalao's house on April 17, 1999, which was a clash
between Pro Integration and Pro Independence groups, resulting in Manelito
Manuel Carascalao was dead;
The Pro Independence group the witness knew were CNRT, FALINTIL, led by
Leandro Isaac and Manuel Viegas Carrascalao, while the Pro Independence
group the witness knew, among others: BMP, MAHIDI, Aitarak, PPI, whereas the
Defendant was Commandant of Aitarak group headquartered near Tropikal, He
was also PPI Deputy Commander and the Commander was Joao Tavares;
As a Dandim, the witness did not have any close relationship with the
Defendant nor the witness knew about the reason of the attack to Manuel
Viegas Carrascalao's house;
Heard from the witness' subordinate that clashes between Pro Independence
and Pro Integration groups were often occurred, later on the witness ordered
to withdraw all weapons and save them at the District Military Command
Headquarters (Makodim);
The witness knew that there were missing firearms from the Makodim, and the
witness did not know from where the weapons and granats presented as
evidences before the court come, but the witness recognized homemade
firearms, SKS firearms, a kind of TNI weapons not used anymore, but still
used in training and many of them had been missing;
The witness heard about the establishment of Pam Swakarsa, because people
were threatened by independence group, particularly after Opsi II given by
the government to provide alternatives of independence or integration with
Indonesia, this matter escalated disputes resulting in destruction,
interference, therefore defenses were created in each village to avoid
threat through Pam Swakarsa;
The witness knew that there were District Military Command personnel who
were members of Pro Independence group after had been informed by Kodim's
Intelligence officer and the witness had gathered them and given them
guidances, because his staff were numerous, the witness did not know whether
they were involved in the clash or not;
It was correct that there was a TRIBUANA TASK FORCE which has around 28
personnel, among them the 10 personnel were assigned in District Military
Commands, the rest were placed in Sub District Military Commands to assist
Sub District Military Commanders;
The witness got reports from his Staff and from TRIBUANA TASK FORCE, the
reports was compiled and filed, the reports mentioned all kinds of
incidents, the reports was gathered from Intelligence officer, TRIBUANA TASK
FORCE in order to help territorial security;
Concerning the incident at Dili Diocesan, Bishop Bello's place which was
also a refugee shelter, was a sacred place, they respected the place, having
their own rules which should be followed by everyone, therefore according to
the witness, it was impossible that the incident occurred at that time;
When the incident was taking place, the witness was in Kolmera, more or less
than ½ km from the location of the incident, after getting reports and
information about the attack, the witness reported it to the Danrem, the
witness was ordered by the Danrem to assist the apparatuses, to separate the
conflicting parties, to save Bishop Bello, after the clash and disputes
there were victims, but the witness did not know who the victims were;
The group attacking Dili Diocesan used sharp weapons, homemade firearms,
arrows, spears, they were Pro Integration groups, because the place was used
as a hiding place by the Pro Independence group, and it was found ballot
boxes hidden there;
It was correct that shopliftings occurred committed by people, exodus of
people was taking place too, if the people were not stopped, they will come
to Dili and caused extensive damage, the exodus happened before and after
popular consultation implementation;
In the circumstances, the security guard was prioritized to protect UNTAET
personnel, vital goods and places;
8. Witness Abilio Osorio Soares
The witness was former East Timor Governor and had been knowing the
Defendant since 1995 when the witness was still a Governor;
As a Governor, the witness' tasks was to run the government, Development and
Socialization in the region and did a vertical coordination with linked
institutions and central institutions in the region assigned to the Governor
in order to implement the task in the region;
In East Timor there were two conflicting groups, they were Pro Integration
and Pro Independence groups, resulting in security disorders, conflicts,
disputes, burning down happening everywhere, the situation escalated before
and after the popular consultation was implemented;
Pro Independence group like Fretilin, CNRT, often committed security
disturbances, while Pro Integration group joined to Aitarak, BMP, MAHIDI,
PPI, and many other groups;
Since the beginning, the witness did not agree with the popular
consultation, because it would cause disputes, the witness suggested to hold
a meeting between the disputed parties by inviting the leaders, and chose
the location in Australia, but because the matter had already been decided
by the central government, it should be implemented properly, therefore the
witness formed an organization called FPDK (Forum Kesatuan Demokrasi
Keadilan), BRTT (Barisan Rakyat Timor Timur), as organizations to
accommodate groups or people who chose or want integration or Pro Autonomy;
In order to prevent security disturbances, a coordination meeting between
Governors and Muspida (Local Community Leaders) and meeting with Regents was
held and hear their reports, then each Regencies initiated to establish Pam
Swakarsa in order to help public security and public order;
Because the establishment was initiated by the Regents, then the Pam
Swakarsa's expenses were provided by each Regent according to the needs of
their regions;
Pam Swakarsa in Dili was led by Major of Dili Administrative City, the
witness did not know the number of the members, Pro Integration like
Aitarak, BMP, MAHIDI, and other Pro Integration groups, not Pam Swakarsa,
but all of them were members of PPI which later became members of Pam
Swakarsa;
The relationship between PPI and Pam Swakarsa, PPI was established around
August 18, 1974, led at that time by Viegas Carasscalao, activities (sic!)
of anti-Clandestine, and it was they who fought directly against the
Fretilin;
Before becoming PPI, the group was a partisan group called KOMBATITA ANTI
COMUNISTA, firstly established to fight against communists in East Timor,
which was perceived to be in contrary to religion;
Because the security disturbances escalated, the group that had existed
earlier had been re-established in 1999, and called themselves PPI (Pro
Integration Forces) using similar attributes, equipments and goal with the
previous one, and there were members who were also Pam Swakarsa members;
Their clothes was camouflage uniforms, civilian clothes, equipped with
knives, arrows, spears and homemade firearms led by its Commander, Joao
Tavares and the Deputy Commander who was the Defendant himself;
Besides being the Deputy Commander, the Defendant was also Aitarak
Commandant whose headquarters was in Tropikal Dili, a former Portuguese
hotel, as a Deputy Commander of PPI and as a Commandant of Aitarak, the
Defendant exercised big influence on the troops or his subordinates;
An example of his big influence was after the popular consultation announced
when the witness family (the Governor family) was going to leave Dili for
Atambua, encountered several problems and could go forward after getting
letter of travel from the Defendant as the Deputy Commander of PPI, because
it was only the Defendant who could issue such letter of travel;
It was correct that on April 17, 1999 at the East Timor Governor office
courtyard a Big Inauguration was held attended by thousands of people and
its first aim was to hold Pam Swakarsa Rally whose implementation was
carried out by Major of Dili City;
The Inauguration was held in the morning and when the event was about to
begin, the witness got information from Kakansospol, that the participants
of the inauguration were PPI groups, that three days before the
inauguration, the witness got an information and invitation from Major of
Dili City to deliver a speech but the witness did not pay attention on the
agenda of the event which as far as the witness knew, the event was the
Inauguration of Pam Swakarsa but because it was a PPI rally and there was
Irish Ambassador visiting, the witness did not deliver a speech;
At the inauguration location, when the witness was walking towards the
Muspida, the witness saw the Commander of PPI, Joao Tavares, accompanied by
the Defendant Eurico Gutteres and Zeboah Haipon, they were standing on the
stage;
The witness did not know the number of PPI masses attending the Rally, but
the witness saw thousands of people, there were people wearing camouflage
uniforms, carrying sharp weapons such as machetes, knives, spears, arrows,
homemade firearms, and TNI and Polri apparatuses were there, they did not do
anything;
The witness did not prevent the participants of Big Inauguration from bring
weapons, because the persons who had the authorization to prevent that were
TNI and Polri;
When the inauguration was over, the witness got information that the persons
who delivered the speeches were Joao Tavares, the defendant Eurico Gutteres
and Zeboah Haipon, and when the Big Rally was over, there was an incident of
attack to Manuel Viagas Carrascalao'house resulting in 17 people dead and
some wounded, the 20 perpetrators had been arrested;
According to information from Kakansospol which the witness did not know
whether it was true or not, when the Rally was over and the participants
were passing Manuel Viegas Carrascalao's house, heard cries for help from
Manuel Viegas Carrascalao's house, the crying voices were the voices of
missing families had been looked for and were inside Manuel Viegas
Carrascalao's house, when they were going to help, a conflict took place
resulting in dead and wounded people, including Manelito Carasscalao was
dead;
During the big rally, on April 17, 1999 in the office courtyard, it was
heard shouts among the rally participants, "shouts of independence" (sic!);
The Big Rally activity was covered by various mass media and broadcast on
RRI (Radio of the Republic of Indonesia), Catholic Radio Nai Veto (Bunda
Maria), therefore the event was listened to by many people;
FPDK and BRTT, were established by they who felt evocation, as an agreement
among community leaders who wanted integration to Indonesia or pro Autonomy,
therefore it was an organization for Pro Integration;
It was impossible that the members of Pam Swakarsa were from Pro
Independence but the members were from Pro Integration, like MAHIDI,
Aitarak, BMP, some of them had job and some others jobless;
9. Witness Joao Da Silva Tavares
The witness recognized the Defendant as a youth leader, he led an
organization or Pro Integration group which was Aitarak Commandant and as
the Deputy Commander of Pro Integration Force (PPI) and the Commander of PPI
was the witness himself and also Commandant of Pro Integration group called
HALILINTAR;
The PPI Commander and Deputy Commander were elected by Pro Integration
community in Balibo meeting, PPI did not have any structure but had leaders
and members, and there was job distribution to each of them to safeguard
their own regions, the Defendant and his group, Aitarak, had a task to
safeguard Dili City, and the witness as the HALILINTAR Commandant had a task
to safeguard Maliana territory;
Before it was given name PPI, it was Partisan group, which was reestablished
in 1999, because it had to fight the FALINTIL which was anti Integration and
which trouble had escalated, and the Defendant was an influential figure
among his troops and among the society;
HALILINTAR group had weapons such as machetes, knives, spears, arrows, and
homemade firearms and also G.3 weapons of NATO standard, the other groups
like Aitarak, BMP, SEKAP definitely also had;
The other groups' leaders whom the witness knew were BMP led by Agus Sousa,
SEKAP led by Juantiko, MAHIDI led by Laimus;
There were HALILINTAR members who were also TNI personnel because it was not
prohibited, and HALILINTAR group had three platoons led by platoon
commanders named Paul, Rosalindo and Yose, and HALILINTAR, Aitarak had their
own platoon commanders too;
On April 17, 1999, the Defendant as PPI Deputy Commander invited the witness
to attend the Big Rally at the Governor office courtyard, Dili, at that time
the Defendant asked the witness to serve as an inspector of the ceremony
(Irup) and gave a speech;
The Big Rally was attended by 5000 participants, the participants were
members of PPI, Aitarak Dili, BMP, SEKAP, MAHIDI and other groups, the
participants brought machetes, spears, arrows and homemade firearms;
When the ceremony began, the witness as the Irup, accompanied by the
Defendant rode on a Jeep to inspect the troops, after that, the witness
delivered the first speech, followed by the Defendant but the witness did
not remember the content of the Defendant's speech, the witness only
remembered that the Defendant said "there should be a patriotic spirit, obey
the nation and the state and the unity of the nation", after it was over,
the witness went back to Atambua;
The aim of the Big Rally was to know each other, to support and fight over
Integration to Indonesia with the granting of autonomy;
In the afternoon the witness had just realized that after the Big Rally,
there was an attack to Manuel Viegas Carrascalao's house, resulting in the
death of his son, it was said that the masses who attacked were the masses
who took part in the Big Rally, the distance between Manuel Viegas
Carrascalao's house and the location of the Big Rally was around 300 meters,
and during the rally, the police and TNI were there to guard;
The witness had been honored as an Honorary member of the KOPASSUS, the
award was granted in KOPASSUS's headquarters in Batu Jajar, because the
witness participated in military operations when the witness was a partisan;
10. Witness Agustinus B. Pangaribuan
It was correct that the witness had been appointed as the Chief of the
Police Detective Squad (Kasat Serse) at Dili Polres since November 1996
until mid of 1999;
As a Kasat Serse in Dili Polres, the witness's task was to follow up reports
from community, do criminal investigation/question, execute superordinate's
order / policy and he was responsible to the Kapolres for the implementation
of his tasks.
The Dili Kapolres at that time was Supt. Drs. Hulman Gultom, while the
Wakapolres was Ass. Supt. Drs. Mangatas Tambunan;
Concerning the Dili and East Timor general situation, before and right
before the popular consultation, clashes and disputes often took place
between two groups, the Pro Integration and Pro Independence groups, each of
the group had its own masses and weapons;
The witness recognized the Defendant since he was a Kasat Serse in Dili
Polres, the Defendant was known to the witness as a main figure of the
community, and a respected figure, and had a big influence in East Timor,
especially among his groups;
The Defendant was involved in Pro Integration group, had masses or
followers, or subordinates, and had influences so that he was respected,
because so many people admired him;
The Defendant was the Commandant of Aitarak group and the Deputy Commander
of PPI, headquartered in Tropikal Dili (former Portuguese hotel), but the
witness did not know who provided the place to the Defendant;
Since there were two conflicting groups, Pro and Anti Integration, the
clashes often occurred between the two groups and if the clash occurred, the
witness often asked for help to or coordinated with the Defendant to calm
down the effect or the incident;
Members or followers of the Pro Integration group, such as Aitarak group led
by the Defendant, the, had no firearms, but had homemade firearms, machetes,
knives, and they used to wear camouflage uniforms or attributes marked Pulau
Timor (Timor Island) and wear Red and White headband;
The witness knew the Pro Integration group as well as Pro Independence group
had weapons, because sweeping was often conducted on weapons' owners and the
weapons were found among both Pro Integration as well as Pro Independence
members;
The witness knew the incident of attack on Carascalao'house on April 17,
1999, committed by Rally participants at Governor of Dili courtyard, from TV
news when the witness was in Denpasar;
After the witness was back to Dili, the witness did visit the location of
the incident (TKP), in Carascalao's house, the witness saw damages on
windows, holes in the wall, bloodspots, but the witness did not conduct any
investigation nor examination about the incident, because based on the
superordinate's policy, the investigation will be conducted by East Timor
Provincial Police Command;
Based on the information received by the witness, the perpetrators had been
arrested, numbering of 20 people, the dossiers had been completed, but the
witness did not know who the perpetrators were and the how the dossiers were
produced, because the witness did not see directly the perpetrators who had
been arrested;
As far as the witness knew, the perpetrators had not been brought to the
court, and the case simply proceeded as far as completing the dossiers,
because at that time the situation and condition did not allow;
The witness did not know from which group the attackers came in Manuel
Viegas Carrascalao's house, but based on information, the perpetrators were
from Pro Integration group, that were the groups who participated at the
Rally at Dili Governor's courtyard;
As far the witness knew the Defendant's job was Aitarak Commandant and
Deputy Commander of PPI, he also worked private and did not work as a civil
servant (PNS);
During the Dili Diocesan incident, the witness saw and recognized the
members of Aitarak, Besi Merah Putih group were there, bringing sharp
weapons, such as machetes, knives, sticks and homemade firearms;
11. The witness Dominggus M. Dores Soares, SH; MH.
The witness had been Dili Regent since 1994, and the witness's task as the
Regent was among others to run the government, Development and
Socialization, in Dili Regency, including had to perform tasks and be
responsible for security measures and public orders;
When running the government, as a Regent had encountered many disturbances,
that were, from the groups who wanted independence, and topple down the
Indonesian Government such as the CNRT, the Falintil;
Therefore clashes often took place between Pro and Anti Integration, and the
clashes had been happening since a long time ago, all people already knew
about that, and it escalated when the Option of independence came out which
meant to give rights to the Anti Integration to be independent;
The result of the clashes was the security and public orders disturbed;
In order to help to deal with the security and public orders, and discipline
the public, an alternative was looked for, which was in reactivating the Pam
Swakarsa , therefore the Pam Swakarsa already existed before, but based on
the situation and condition at that time, it should be reactivated;
The Pam Swakarsa reestablishment expenses were borne by Local Government
budget, each of Pam Swakarsa member was paid Rp150.000,- per month;
The witness had proposed to the Governor 1200 people to become members of
Pam Swakarsa in Dili regency, and the leader of Dili Pam Swakarsa was the
Major of Dili City;
In order to guide and protect the community, and to prevent escalation of
violence, the solution was to reactivate the Pam Swakarsa which had existed
before, therefore the witness suggested the Governor to hold an Inauguration
Rally, held in Dili as a Provincial Capital City, then the guidance should
be carried out throughout the regions;
After getting instructions from the Governor, then a committee was formed to
arrange the Pam Swakarsa Inauguration Rally at Governor office courtyard,
Dili on April 17, 1999;
It was planned that the person who would give a speech was the Governor, but
because not all participants from every regions were present, the Governor
cancelled the speech;
The Governor cancelled to deliver his speech a moment before the event
began, and the witness saw Kakan Sospol made a report to the Governor
shortly before the event commenced, but according to information from the
committee, the Governor cancelled the speech because there were not so many
participants attending the ceremony and not all participants invited from
every regions were present, then the Governor was disappointed, therefore he
did not give a speech;
Joao Dasilva Tavares was a PPI Commander, and its Deputy Commander was the
Defendant;
The witness was present at the Pam Swakarsa Inauguration Rally at Dili
Governor courtyard on April 17, 1999, from the beginning until the end of
the event, which began at around 9 until 12 noon;
Pam Swakarsa was not Aitarak, BMP, MAHIDI, Sakaur, or PPI, but there were
members who were also members of Aitarak, BMP, MAHIDI, PPI and other groups;
The witness did not see any participants bringing weapons, what he saw was
the Rally participants bringing clubs;
The Rally participants were wearing civilian clothes, there were who wore
camouflage uniforms, T Shirts, and the witness forgot whether Pam Swakarsa
had uniform;
It was correct that after the Pam Swakarsa Inauguration Rally at Dili
Governor office was over, an incident of attack on Manuel Viegas
Carrascalao's home took place, committed by Rally participants resulted in
12 people dead including Manuel Viegas Carrascalao's son, and there were
wounded people;
According to the committee's report, the incident proceeded when the rally
participants were passing by Carascalao' house, then cries for help were
heard, and it was known that the person was from Liquisa forced to come to
Carascalao's house, then resulted in a clash in the Carascalao's house;
The rally at Governor courtyard was not a PPI rally but it was intended to
be Pam Swakarsa rally;
The program and the list of the speeches became the committee's
responsibility, and the witness did not know why Joao Dasilva Tavares
delivered the first speech;
The witness did not know whether the perpetrators of the attack on Manuel
Viegas Carrascalao's house had been sentenced or not;
During the rally, the police and TNI were present around the place of the
ceremony and did not do anything;
Considering to the testimonies given by the witnesses above namely:
Witness 1 ALFREDO SANCHES
Witness 2 JULIO SOUSA
Witness 3 DOMINGGUS DOAVIDA
Witness 4 MANUEL VIEGAS CARRASCALAO
Considering to the testimonies, given by the witnesses above the Defendand
rejected the witnesses' testimonies, whereas towards witnesses' testimonies
of:
Witness 5 Drs. BASILIO DIAS ARAUJO, MA
Witness 6 JOSE AFAT AMP
Witness 7 SOEDJARWO
Witness 8 ABILIO JOSE OSARIO SOARES
Witness 9 JOAO DA SILVA TAVARES
Witness10 AGUSTINUS B. PANGARIBUAN
Witness11 DOMINGGUS M. DORES SOARES, SH,.MH
The Defendant approved and has no objection:
Considering that the Panel of Judges had explicitly ordered before the court
that the prosecuting attorney present and allow, by force if necessary, the
witnesses to testify before the court:
LEANDRO ISAAC
VICTOR DOS SANTOS alias APIN
SANTIAGO DOS SANTOS
FLORINDO DE JESUS
MARIA CHRISTIANA CARASCALAO
JUANICO DASIVA
SUPARNO
But it turned out the witnesses could not be presented before the court by
the prosecuting attorney;
Considering, according to the prosecuting attorney's statement before the
court, the witnesses LEANDRO ISAAC, VICTOR DOS SANTOS, SANTIAGO DOS SANTOS,
FLORINDO DE JESUS and MARIA CHRISTIANA CARASCALAO had been called, even by
asking assistance from responsible officials in Timor Leste, as mentioned in
the contents of summon letter (surat panggilan), assistance requested from
Timor Leste Government, which subject had delayed the court examination to
wait the witnesses to appear many times;
Considering, that the witnesses LEANDRO ISAAC, VICTOR DOS SANTOS alias APIN,
SANTIAGO DOS SANTOS, FLORINDO DE JESUS and MARIA CHRISTIANA CARASCALAO were
Timor Leste citizens and lived in Timor Leste, then it was difficult to
present the witnesses before the court because they lived far away, and
during the investigation they had given their testimonies under oaths, while
the witness JUANICA DA SILVA and the witness SUPARNO, according to the
prosecuting attorney's statement, their addresses were no longer found,
because they had moved to another place, therefore the prosecuting attorney
could not give any guarantee to present the witnesses before the court, and
demanded that the witnesses' testimonies as mentioned in the Police
Deposition Document (BAP) should be read before the court;
Considering, the Criminal Code (KUHAP) allows the reading of investigation
documents before the court, and one of the reason for that is the distance
of witness' residence, which stated in article 162 paragraph (1) Law No.
8/1981 (KUHAP) which declares that when after the witness gave a testimony,
the witness passes away or due to legal reason can not appear in the court
or is not summoned due to the distance of the witness' residence or due to
other reasons related to the state's interest, then the given testimony is
read. According to article 162 paragraph (2) KUHAP, whenever the testimony
is given under oath, then the testimony should be treated equally with the
one given by the witness under oath in the coutroom.
Considering, because the prosecuting attorney's request to read the
witnesses' testimony who could not appear before the court, has met one of
the qualifications stipulated in the article 162 (1) KUHAP, therefore if the
Defendant and Defendant's Lawyer Team objected, the objection can be ruled
out and the witnesses' testimonies had been read before the court, whose
testimonies mentioned in the BAP as follow:
Considering the witnesses' testimonies:
LEANDRO ISAAC, as mentioned in BAP dated July 21, 2000, Sworn Deposition on
July 21, 2000;
VICTOR DOS SANTOS alias APIN, as mentioned in BAP dated July 21, 2000, Sworn
Deposition on July 21, 2000;
SANTIAGO DO SANTOS, as mentioned in BAP dated July 21, 2000, Sworn
Deposition on July 21, 2000;
FLORINDO DE JESUS, as mentioned in BAP dated July 21, 2000, Sworn Deposition
on July 21, 2000;
MARIA CHRISTIANA CARASCALAO, as mentioned in BAP dated July 27, 2000, Sworn
Deposition on July 31, 2000;
JUANICO DASIVA, as mentioned in BAP dated July 28, 2000;
SUPARNO, as mentioned in BAP dated October 16, 2000;
Each of them gave testimonies to the Investigator of Grave Human Rights
Violation in East Timor whose had earlier been sworn by the investigator
from the Office of Indonesian Attorney General, whose testimonies were
principally as follow:
Witness Leandro Isaac:
The witness always met with Manueel Viegas Carrascalao at his home before
the incident, with political reason and visit the refugees;
On April 17, 1999, the witness was at his home in Lahane/Dili;
The witness's house was attacked by the Militia around 10:00 and called
Manuel Viegas Carrascalao around 12 noon on the same day, the witness
reported the attack on the witness' house and about the general situation in
Dili, his son named Manelito answered that there had been signs that their
house was going to be attacked by Militia;
When the attack to Manuel Viegas Carrascalao's house took place the witness
was at his home, while Manuel Viegas Carrascalao, according to the
information from his son named Manelito, when he was called by the witness,
said that his father (Manuel Viegas Carrascalao) was already at the Korem
Dili (military base in Dili);
According to Manelito his father went to the Korem to report that there had
been indication that his house was going to be attacked;
The attackers on the witness' house was the Militia, numbered around 40
people led by Eurico Gutteres where at that time Eurico Gutteres was on the
first row of the convoy riding a motorcycle and went straight from the back
of the witness' house around 11.30, the convoy consisted of 2 (two) trucks,
1 (one) kijang pick up, 1 (one) kijang minibus, and 6 (six) or 8 (eight)
motorcycles, and Eurico Gutteres was now in Kupang, they fired 3 (three)
times towards the front door, and three times towards a location where the
witness parked his car at the back of the house. They forced to enter and
destroyed everything inside the house, and the witness was assisted by Pro
Independence youths from Lahane;
The witness went back to his home after the attack and later on the witness
made a phone call to Manuel Viegas Carrascalao's house;
According to the information received by the witness and later on from the
CNRT, that two Militia groups called BMP and Aitarak were responsible for
the attack to Manuel Viegas Carrascalao's house and the leader of BMP was
Manuel Sousa;
The witness did not report the incident of attack on the witness house to
the security apparatuses, because the witness did not trust them on April 18
around 7.00 went to the Bishop's house in Licidere-Dili, and at that the
time the witness met with Manuel Viegas Carrascalao, we discussed a
situation at that time, and after Bishop Belo went to Kapolda and Korem
whereas (sic!) they were the Head of Police and Korem Commander to talk with
them about the security situation. Bishop Belo reported again that the only
safest place for us was Provincial Police Command (Polda);
The attack towards Manuel Viegas Carrascalao's house took place at 11.30 in
the morning until 20 in the afternoon (sic!), it was correct because the
witness made a phone call to Manuel Viegas Carrascalao's house at 11.30 in
the morning and Manuel Viegas Carrascalao's son answered that their house
was also been attacked by the Militia, and when the witness called again at
2.00 in the afternoon, there was no answer. The Manuel Viegas Carrascalao's
house which was attacked was located on the two main roads in front of the
beach, beside the Dili Governor (sic!);
According to the witness' opinion, the motive of the attack on Manuel Viegas
Carrascalao's house mainly because he was a Pro Independence, he was a CNRT
person, he always reported situations in Dili to foreign countries, finally
Indonesia planned to exterminate all resistensia leaders;
The reason why the witness' house was attacked, on the day of the attack,
around 08.00 an official ceremony was held in front of the Governor office
of the Militia organization, Governor Abilio Osario, Kapolda Timbul Silaen,
Danrem Tono Suratman and the Milita Commandants who participated at that
time were Eurico Guterres the leader of Aitarak Militia, made a political
statement that the witness (Leandro Isaac) Manuel Carascalao, David Diaz
Ximenes and Mario Carascalao who leaders of CNRT should be killed, then
after the statement was announced the witness' house was attacked, the
witness had a copy of Eurico Guterres' statement;
Besi Merah Putih Militia had communication facility in Liquisa Regency
Maubara District, at the beginning of July 1999 the witness passed by and
saw with his own eyes communication radio with all of its equipments similar
to the one belonged to ABRI during the attack on the witness' house on April
17, 1999, the pistol used by Militia was caliber 9 similar with the one used
by TNI, therefore the witness was convinced that TNI gave assistance to the
Militia;
Witness Victor Dos Santos alias Apin:
On that day, April 17, 1999, the witness happened to pass by after made a
phone call from a public phone near Manelito's house, after made the call,
the witness saw they were sitting altogether and the witness came towards
them, then began talking to them, and then came into the house;
On April 17, 1999 the witness was at Manuel Viegas Carrascalao's house
around 12.00 o'clock, Militia rode on a truck and stopped in front of the
house, they yelled "kill Carrascalao", we saw through the window, many
Militia whom we knew were Militias from Aitarak and Besi Merah Putih, we
also saw there were armies wearing Militia uniform the witness knew there
were armies wearing Militia uniform, because the witness often saw and met
them at Tropical (Aitarak Headquarters) before the incident. Among them were
those wearing headcovers and speaking in Javanese accent, some of them
remained there and some others left. One (1) hour later, the Militia who had
left came back and attacked collectively before they forced in, Manelito had
gotten a chance to chase them out and said that if they wanted to come into
the house please do it in a proper manner then they went out immediately;
At the same time, two reporters come and around 20 minutes later more
Militia arrived from other places such as from Herman's house and Becora bus
station, shouting kill Carrascalao. Not long after that, they attacked and
forced in, after they had forced in the witness and the witness' friend Joao
Junior, we were trying to run out, but we were besieged. We returned into
the house, Joao, Manelito, and the witness were still receiving a call from
Manelito's uncle, a policeman Capt. Paul, his uncle said that we should out,
we asked Manelito to go out, but he refused;
When the Militia was attacking the house and smashing the windows, Manelito
moved into the living room, when he was in the living room, they shot him.
The witness and Joao Junior ran to the rear of the house, and the Militia
came into the kitchen, attacking the witness and Joao with machetes,
samurai, homemade pistols, Joao was dragged out, the witness' right and left
hands and right ear were cut by machetes, eventhough the witness tried to
resist with his right hand, his right knee was shot and above his right knee
was cut by machetes;
When they cut the witness' right ear, the witness pretended to die, then
there were two of the witness' friends who were still alive and were hiding
inside boxes in the kitchen, when the witness fell down, the witness saw
them and the witness told them not to go out and said just remain there.
Later on the Police and the Mobile Brigade (Brimob) arrived, the Milita then
said let us dismiss the security apparatuses had come when I heard I was
able to stand up the witness saw many corpses in the dining rooms;
When the witness went to the living room, the witness saw that Manelito was
already dead, then the witness tried to go out but the security (Police and
Brimob) guarded strictly, the witness tried to escape through the side door
in the dining room. The witness managed to escape and tried to climb the
fence but it was difficult as the witness' hands were injured. But as soon
as he was out he was at Dr. Longginus's courtyard the witness was arrested
by Brimob. The witness was asked to sleep there, then the witness was asked
to get into an ambulance together with two other wounded persons named
Alfrendo and Florindo, to be taken to Wira Husada Hospital. On the way to
the hospital, the driver, a policeman, stopped the ambulance at Tropical
Hotel, the Aitarak Headquarters there the Militia with their machetes,
homemade weapons, pistols surrounded the ambulance and shouted kill right
away, around one hour later, the ambulance driver took us to Wira Husada
hospital;
The witness recognized some of the perpetrators, some of them were familiar
to the witness, such as Ameo from Aitarak was a Bacau native, AGUS from
Aitarak was a Bacau native, Lois, son of Akadiruhun from Dili who joined the
Aitarak, Jose Renatu from Bidau Santana Dili was also an Aitarak member,
Apiu from Bidau Santana (Dili) was also a member of Aitarak, Luciano from
Bidau Santana (Dili) was also an Aitarak member, Andre from Bidau Santana
(Dili) was also a member of Aitarak, the were others whom the witness
recognized their faces, but did not know their names;
During the attack there were security apparatuses they were behind the
Militia they did not wear uniforms but from their profil and crewcut hair,
the witness knew that they were security apparatusesl, the witness did not
see any weapons but the witness guessed they carried weapons;
There were many people died, the witness did not count them but the witness
saw many corpses the witness recognized only the witness' friend Manelito;
The witness did not know when and where the victims were buried, the witness
saw Aitarak militia brought the corpses out of the house, and mounted them
onto a car, the witness did not recall the car's marks;
Witness Santiago Do Santos:
The witness came to Manuel Viegas Carrascalao's house because Militia
activities in Maubara to terrorize/surpress all men to support Pro
Integration to Indonesia, and on January 8, 1999 Militia started to attack
everybody from one house to another to join the group, from the information
given by the witness' friend saying that the witness had been sought,
therefore on January 15, 1999 the witness escaped to Dili, and like the
witness' friend beforehand, the witness also joined them to take shelter at
Manuel Viegas Carrascalao's house. The witness stayed there because hearing
from friends that Manuel Viegas Carrascalao was a neutral person;
During the attack on Manuel Viegas Carrascalao's house, the witness was in a
small house at the rear of Manuel Viegas Carrascalao's house and the attack
took place on April 17, 1999;
On April 17, 1999, on Saturday around 09.00 - 10.00 the witness turned on
the radio and heard live report of the Dili radio there was a Big Rally in
front of the East Timor Governor office led by East Timor Governor, Danrem,
Kapolda, Militia leader Joao Tavares and his Deputy Eurico Guterres and
attended by all militias. After the ceremony Eurico Guterres (sic!) the
witness heard Eurico Gutteres ordered to exterminate all CNRT leaders and
particulartly Manuel Viegas Carrascalao family should be killed;
Upon hearing that, the witness told friends to run away from the house
because Militia was going to attack Manuel Viegas Carrascalao's house,
hearing that, then a number of the refugees more or less than 50 people ran
away leaving Manuel Viegas Carrascalao's house. Not long after that, Militia
had already encircled Manuel Viegas Carrascalao's house, the witness and the
witness' family could not escape the witness run to a storagehouse near the
kitchen later Manuel Viegas Carrascalao's son (Manuel Gama Carrascalao)
called the witness to come into the dining room, at that time the witness
heard gunshots and homemade firearms smashing the windows and door, then
they entered from the front and heard machetes cutting people and after that
heard people fell down. After that the Militia entered the dining room and
everybody there ran away. At that time the witness saw the witness' friend
Raul was killed by Augusto with machetes/samurai;
During the time the witness was in the bathroom there were 2 (two) TNI
personnel the witness recognized named Jose Matheus and Theofilo Da Silva
who joined the attack using weapons commonly used by TNI, and the witness
knew them because they were Maubara natives, at that time they were wearing
Militia uniform, that was, black jacket, helmet and black and red headband;
Besides the two personnel, people committed the attack whom the witness know
were two Kamra members: Matheos Do Santos from Vawiquenia Village and Inasio
from Watuo village, and Militias from Maubara, those were, Fransisco
Alfonso, Honorio Manuel Goncalves, Nicolau, Abrao, Joselino, Augosto, but
the witness did not know the numbers of people who attacked Manuel Viegas
Carrascalao's house;
The total numbers of people died during the attack were 12 people, those
were: 1. Manuel Gama Carrascalao, 2. Raul dos Santos Cansela, 3. Alberto dos
Santos, 4. Januario Ribeiro, 5. Alfonso Ribeiro, 6. Crisanto dos Santos, 7.
Rafael da Silva, 8. Cesar dos Santos, 9. Eduardo de Jesus, 10. Antonio de
Soares, 11. Joao dos Santos, 12. Agustino B.X. Lay;
When the witness was taken by the Police from Manuel Viegas Carrascalao's
house to Dili Polre for interogation, the witness was interogated by the
Police to admit that the party starting to fire the gun from inside Manuel
Viegas Carrascalao's house was Falintil group, therefore the Militia
attacked Manuel Viegas Carrascalao's house but the statement was denied by
the witness because there was no Falintil group inside Manuel Viegas
Carrascalao's house. On the other day, the witness was brought to the morgue
room at Wira Husada Hospital and there the witness identified names of
killed victims at Manuel Viegas Carrascalao's house, and all of them were 12
dead people, later on April 18, 2000 (sic!), the witness was told by a
Police (Joseph) that the corpses would be buried in their native place
Maubara, after that the witness was brought from Polres to Polda to be
detained;
When the corpses were brought to Maubara to be buried, the witness did not
come to Maubara, numbers of the corpses taken to Maubara were 11 (eleven)
corpses, and 1 person was buried in Dili, the witness knew because he was
told by Police;
Additional information given by the witness was that eventhough Eurico
Gutteres instructed to attack CNRT leaders in front of the officials (Abilio
Osorio Suares, Tono, Provincial Police Commander Timbul Silaen) attended the
ceremony, but they did not try to prevent the attack, the witness was sure
about that because the Militia group led by Eurico Guterres, after the
ceremony immediately attacked Manuel Viegas Carrascalao's house without any
prevention from the security apparatuses;
Witness Florindo de Jesus:
The witness was in Manuel Viegas Carrascalao's house as a refugee, because
the witness was hunted down by the Militias in Maubara, one of District in
Liquisca;
Manuel Viegas Carrascalao's house was located near Tropical Dili, but the
witness did not know the name of the street and the number, during the
attack to Manuel Viegas Carrascalao's house, the witness was inside Manuel
Viegas Carrascalao's house;
The witness and refugees arrived at Manuel Viegas Carrascalao's house in
January, more or less than 200 refugees were at Manuel Viegas Carrascalao's
house, but the correct number of refugees in the house the witness did not
know, because many people came and went;
The witness was taking shelter at Manuel Viegas Carrascalao's house, because
we believed that Manuel Viegas Carrascalao had responsibility on refugees
and was also a CNRT member;
Manuel Viegas Carrascalao's house had been attacked around 12 East Timor
Time, on Saturday, April 17, 1999;
When the attack was taking place, the number of refugees at Manuel Viegas
Carrascalao's house were more or less than 200 people, among them the
witness knew were: 1. Alberto Dos Santos, 2. Eduardo de Jesus, 3. Alfredo
Sanches, 4. Januario Pereira, 5. Maria Fatima, 6. Agusto de Jesus, 7.
Silbano, 8. Jacinto, 9. Luis, 10. Antonio, 11. Joao de Silva;
When the attack to Manuel Viegas Carrascalao's house was going on, Manuel
Viegas Carrascalao and his family were not at home, only his son also named
Manuel Carrascalao who also known as Manelito was there;
The group who committed the attack was the Militias and TNI, because at that
time the witness was in front of the house's fence, therefore the witness
saw that the attackers were Militias and TNI with the total number the
witness predicted more than the number of the refugees inside the house;
Militias and TNI the witness recognized were: 1. Dominggus Bondia, 2. Joaon
Doumesa, 3. Grasino, 4. Dominggus Metan, 5. Alfonso Batleri, 6. Manuel
Sousa, 7. Mancuro Metan, 8. Camilo, 9. Sico Curbuti, 10. Mandua Curbuti, 11.
Fernando Sousa, 12. Dennis Locoban, 13. Victor Orlando, 14. Manuel Orlando,
15. Felik Dasilicio, 16. Miguan Buti, 17. Simao Santana, 18. Matius Ecdal;
From TNI: 1. Jose Matius, 2. Antonio Basicao, 3. Duarte, 4. Carlos Amaral,
5. Batisar, 6. Teofilo.
Types of weapons used in the attack:
Militias: firearms, homemade weapons, machetes, samurai and arrows, which
number the witness did not know;
TNI: firearms, types was unknown by the witness, but the witness saw that
the kind of firearm were used to be carried by TNI, which number the witness
did not know.
When the attack was taking place, the witness was in front of Manuel Viegas
Carrascalao's house's fence, together with the witness at the time was the
witness' relative named Albertus do Santos, the attackers consisted of the
Militias and TNI arrived in a large group, riding many cars, one of the
cars, a blue-colored kijang pick up belonged to a Militia member named Pedro
Mai who now was in West Timor, the blue kijang car was driven against the
fence to let the Militia entered the house, in the house, the attackers,
using automatic, homemade weapons, samurai, arrows and machetes took action
at once, among them was witness' relative, a TNI member, Jose Mateus
instantly shot witness' relative named Albertus do Santos and then was
physically abused by Dominggus Bondia a member of the Militias until he was
dead. When the Militia/TNI had come forcefully into the house, the witness
was trying to crouch down to hide and run onto the fence to get into the
house, but he did not succeed since the house had already been surrounded by
the Militia/TNI, the three of us: the witness, Alfredo Sanches and Eduardo
de Jesus were hiding on the fence, at first they were unnoticed by the
Militia/TNI, but after the killings was over and the Militia/TNI was about
to retreat, they saw the three of us and one of them shot Sanches. After
Sanches was killed and fell down on the ground, the witness saw Jakeus, a
Militia member, and Antonio Besikau, a TNI member shot Eduardo de Jesus to
death they shot the witness but they missed, but when the witness jumped
down on the ground, the witness was slashed by Militias, one of them was
Dominggus Bondia, the result was the witness suffered but at that time the
witness pretended to die, when the Militia/TNI had left, the International
Red Cross came and took the witness to Wira Husada hospital. The attack
resulted in heavy injuries, but the wound marks remained to be seen on his
body;
Parts of the witness' body suffered injuries due to the slashing by
Dominggus Bondia were on his right hand, left hand finger, back, shoulder,
toes to sole, because of the injuries, the witness was hospitalized for 4
months.
At first, the witness did not know who died. After the witness released from
the hospital and visited the graveyards of the victims of attack on Manuel
Viegas Carrascalao's house, it was just known that 12 people had died: 1
person was buried in Dili, and 11 people in Maubara. Their names were:
Manuel Carrascalao who was buried in Dili, Alberto dos Santos, Eduardo do
Santos, Antonio Soares, Januario Peretra, rafael Da Silva, all of them were
buried in Maubara, Alberto Santos was the witness' older brother, those
injured were the witness, Alfredo Sanches, and Victor Do Santos, all of them
were still alive;
Manuel Carrascalao as the witness had explained, had died and had been
buried in Dili, was a son of Mr. Manuel Viegas Carrascalao;
The clothes wore by the Militia was camouflage uniform, trousers or
camouflage trousers, civilian clothes, whereas some of the TNI wore civilian
clothes, commonly wore by local people;
Witness Maria Christiana Carrascalao:
The event that happened on April 17, 1999 in Dili was on that day, Saturday,
April 17, 1999 around 09.00 East Timor Time the witness listened to RRI
radio broadcast and heard Eurico Gutteres' speech in the ceremony to raise
the Red and White Flag and the ceremony of blood-drinking oath, the witness
knew that the participants were East Timor Governor, Danrem, Kapolda and
other participants, those were Eurico Guterres's members who were militias,
in the speech, Eurico Gutteres said that people who were Pro Independence
should be killed, and one thing that shocked the witness was a threat to
kill the witness' uncle (sic!), who was Manuel Viegas Carrascalao, former
Governor of East Timor- who was in Jakarta at that time. Upon hearing the
news, the witness reported it to the witness' father (sic!), Mario Viegas
Carrascalao to listen to the radio, after the news was told, the witness'
Father immediately made a phone call to the witness' uncle (sic!), Mario
Carrascalao in Jakarta. Then the witness got prepared to pick her stepmother
up at Comoro Airport then the radio which had been placed in the room
before, the witness moved to the living room to be listened to by people in
the living room, who were friends of the witness' younger brother, then rode
on a Taft Hiline DF-145 departed to the Airport, the route we supposed to
take was the left route, but coming from in front of us, there were lots of
militias carrying weapons just returned from the ceremony, we had to take
the right route and went along the beach to the Airport. Because the plane
was canceled, then it was decided to go the witness' older brother' house
about more or less than 4 km from the Airport. On the way, the witness'
father got a phonecall from a person unknown to the witness, saying that
Herman's house (niece of Dili Regent) had been burned down and Leandro
Isaac's house had been attacked, then it was decided to go back home, on the
way a phonecall from the witness' younger brother, Mario Manuel Carrascalao
saying that father shouldn't go home, because the house was surrounded by
the militias, due to the information, the witness and her father intended to
report the incident at the witness' house to the Danrem Tono Suratman. When
Danrem Tono Suratman was receiveing a guest who was Irish Foreign Minister
then spoke to us and the witness told that we wanted to meet Danrem to
report the incident at our house. While we were talking, a kijang pick up
loaded with several people, one of them wore camuoflage uniform, and the
others wore civilian clothes carrying firearms, the witness said to the
Irish Staff that the situation now in Dili City was everywhere civilians
carrying weapons, not long after that a staff of Irish Foreign Minister came
out and said that the meeting was almost ended, after the meeting was over
and the Irish Foreign Minister and his staff came out accompanied by the
Danrem, the witness saw that the Danrem was surprised to see us there, then
the witness' father reported the incident to the Danrem, but with cynical
face the Danrem said that TNI was neutral. Then the witness' father said, in
that case give us Weapons, to protect ourselves. The Danrem said that just
asked the CNRT, because father was a CNRT Secretary General, at that time
Basilio Naseimento, the FPDK spokesman was also present;
During the meeting, 5 (five) local reporters and 2 (two) foreign reporters
and 2 (two) or 3 (three) staff of Danrem were present;
After getting Danrem Tono Suratman's answer, the witness and the witness'
father turned back and went out, got into the car, and headed toward Dili
Polres, and after arrived at the location, the witness' father talked to the
Police but the witness did not know what they talked about during that time
the witness saw 1 (truck) loaded with Brimob was in Polres courtyard, then
we headed toward Bishop Belo's house, but we did not take the main road, but
we took a road along the beach. On the way to Bishop Belo's house, the
witness saw lots of militias in front of our house, after arriving at Bishop
Belo's house the witness went straight to the back to the office of Justice
and Peace, while the witness' father talked to Bishop Belo, the witness did
not know what they talked about;
After that the witness tried to make phonecalls to several foreign embassies
in Jakarta, the embassy that the witness was able to contact was foreign
embassies in Jakarta (sic!) and the embassy that the witness was able to
contact was the Embassy of Canada to inform the incident that had happened
in Dili at that time;
After that the witness went out and outside the witness heard shootings,
then the witness got information from the people whose names the witness did
not know who were passing by that our house was being attacked. Upon hearing
that news, the witness came inside the Bishop Belo's room and because there
was a guest of Irish Foreign Minister, the witness was asked to wait
outside;
When the witness was outside, brother Betintho Aibu Quergue came soaked with
blood and reported that Niki was badly wounded while Manelito was dead.
After getting the information, we were not able to do anything because our
house was still being surrounded;
Our whole family had been staying at Polda since April 18, 1999 until May
22, 1999, the numbers of us were around 80 (eighty) people, most of them
were small children, later on a Police named Carlos come together with the
witness' stepmother;
The official report from the Police of the deaths as a result of the
incident at Manuel Viegas Carrascalao' house on April 17, 1999 were 12
(twelve) people, consisted of 11 refugees and one younger brother of the
witness, they were: 1. Raul Dos Santos Cansela, 2. Alberto Dos Santos, 3.
Januario pereira, 4. Rafael Dos Santos, 5. Casar, 6. Avelino, 7. Crisanto
dos Santos, 8. Afonso Ribeiro, 9. Eduardo De Jesus, 10. Antonio Da Silva,
11. Joao Da Silva, 12. Manelito Carrascalao;
2 (two) or 3 (three) days after, accompanied by Brimob, witness Papa Manuel
Viegas Carrascalao and the witness' stepmother Fatmawati Sultan, the witness
saw the house was covered by plastic marked Police, guarded by the Police
together with a civilian wearing light brown uniform, the witness entered
through the side door in the dining room and observed the messy condition of
the house, here and there were bloods, whereas there were bloodspots
scattered along the corridor;
At noon, the witness was brought by Police to see Manelito corpse at Wira
Husada hospital, and saw the witness' younger brother with other 11 corpses
in black boxes made of woods, the corpses conditions were very miserable,
some of them were cut, some of their faces were invisible soaked in blood;
Witness Juanico Dasiva:
That the witness knew about the event on April 17, 1999, was a Pam Swakarsa
Inauguration Rally held at East Timor Governor office courtyard in Dili, at
8.00 to 10.00 Central Indonesian Time, the participants who attended the
ceremony were all of Eurico Guterres's followers and other people more or
less than 8000 people;
The speaker at that time was Joao Tavares who was a community leader, the
content of the speech among others was to pledge allegiance to the Red and
White, and all society of security guards of public order of each
neighborhood (sic!);
The event was over at 11.00 Central Indonesian Time, the witness and friends
returned home to Becora on a Truck, when passing by Manuel Viegas
Carrascalao' house, heard cries for help, then the truck stopped, we (a lot
of people) got out of the truck towards Manuel Carrascalao' house, then
fights took place inside the house and we helped our friend, a BMP (Besi
Merah Putih) member (forgot the name) who was shot, and did not know who did
the shooting, then we took the person into the truck;
We returned carrying woodstones to take revenge to save our 4 friends inside
from Liquisa, we asked them to go home rode on the Truck, while the witness
did not know other incidents, because the witness was not able to get out of
the village;
The witness was invited by friends from Bocora station to participate in a
Pam Swakarsa Inauguration Rally and the witness was a member;
In taking part in Pam Swakarsa activities the witness was paid Rp.150.000
per month given by the Head of Vaterino Village, and was paid on the third
day of each month, he only got paid twice beginning in May;
There was a prohibition to use homemade firearms, but having confiscated by
security apparatuses, the witness made another one, because afraid of being
bothered by other hooligan group/CNRT;
The witness was also a member of Aitarak led by Eurico Guterres of Becora
area since April 1999;
During the attack to the Manuel Viegas Carrascalao' house, no one was
leading/ordering the attack, the security appartuses who were there only
Police to dismiss the attack;
Regarding victim of Manuel Viegas Carrascalao's son, who was slashed by
machetes on his hand and neck, later on was dead on the location;
The witness had no chance to come into Manuel Viegas Carrascalao' house,
only came into the courtyard, because fires were heard, according to the
witness' friend the person who was shot was Manuel Viegas Carrascalao's son,
later on died slashed by machetes;
The witness did not see any TNI or Police personnels inside Manuel Viegas
Carrascalao's house, after 30 minutes of the incident, Police/Brimob came to
safeguard, the witness did not know the further incident because he went
home directly;
Witness Suparno:
As a Batuud officer of Koramil-03/Maubara responsible to the Dan Ramil, all
orders came from the Dan Ramil were executed right away;
As a Bataud officer, the witness' task was:
To manage administration matters
To manage personnels' salaries
Task/orders were received from Dan Ramil, and the witness should report
responsibility to the Dan Ramil;
Koramil-03/Maubara had accepted more or less 20 territorial troops who were
on BKO (troops reinforcement sent in from outside the territorial command)
assignment, the witness could not recall their unit, but the only thing
witness knew that they were from Sumatra, placed to assist territorial tasks
of the Koramil;
Types of firearms, communication equipments and vehicles used by Maubara
Koramil were:
Pistol;
PM/Sten Pistol;
M-16 AI rifle
Sp I and Sp II rifle;
G 3 rifle;
The communication equipments used by the Koramil were:
PRC (already broken), HT;
The vehicles used by the Koramil were:
GL - 100 (Honda) motorcycle;
A - 100 Suzuki motorcycle;
As far as the witness knew there were no Wanra in the Koramil, only Ratih
(trained people) who wear Hansip (Civilian Defense) uniforms, numbered more
or less than 20 people they did not get any payment or rice, their task was
only to take part in ceremonies such as:
Mawil Hansip Anniversary;
Indonesian Proclamation Day;
ABRI Anniversary;
Before the court had been heard extenuating testimony of Witness presented
by the Defendant's Lawyer Team:
Witness Marcaleno Martin Ximenes:
The witness recognized the Defendant because the witness lived in Dili as a
teacher in a state elementary school in East Timor and admited that he had
no any kin relationship with the Defendant, nor any blood or marriage
relationship, and had no job relationship with him;
The witness knew the location of the Defendant's house or Manuel Viegas
Carrascalao's resident in Dili;
The witness heard from his friends that there were many refugees sheltered
at Manuel Viegas Carrascalao's house, consisted of senior people (mothers,
fathers), youths, children, women, but the witness did not recognize those
refugees;
According to hearsay or information, those refugees were from Liquisa,
Maubara, and the witness did not recognize them;
The witness did not see the incident of attack on Manuel Viegas
Carrascalao's house, but the witness knew that there had been an attack on
Manuel Viegas Carrascalao's house from those who were escaping from the
house and passing by the witness' house;
At that time, the witnes was inside his house, after attending the ceremony
at East Timor Governor courtyard, then people running pass by the witness'
house, and when the people were asked, they said that Militias had been
attacking Manuel Viegas Carrascalao's house;
The witness did not know the numbers of the dead or wounded victims as a
result of the attack on Manuel Viegas Carrascalao's house;
On April 17, 1999, a Rally or a ceremony was held at East Timor Governor
courtyard, and the witness attended the ceremony;
The witness attended the the ceremony, because there was an invitation to
attend the ceremony from the Regent and Major of Dili City, the witness knew
about the invitation because the witness was told verbally by the school
principal as well as information from other colleagues;
Since the witness was a government officer, a Teacher, and the Education
Office was under the authority of the Regent and Major Office, and the
witness' awareness as a government officer and a Pro Integration member,
then the witness came to attend the ceremony at the Governor courtyard;
The Dili Regent at that time was Dominggus Soares and the City Major was
Mathius Maia;
The witness arrived at the ceremony location at Dili Governor courtyard
around 08.15 morning, the ceremony was a Pam Swakarsa Ceremony attended by
the Regent and Major of Dili, the witness came as an invited guest but not a
participant;
The ceremony participants came from Regencies of Bacao, Liquisa, Vique-que,
Suai, Ermera, Ambino, the witness knew about that because the witness
recognized flag symbol of each Regency they carried;
The participants who came from the Regencies were Pro Integration group, and
the witness was also a Pro Integration;
The groups of Pro Integration the witness knew, among others, were Aitarak
(it means thorn) from Dili, BMP (Besi Merah Putih) from Liquisa-Maubara,
Halilintar, Saka Sera, Ablai, Maha Domi, Mahidi, Laksaur, all of of them
were under PPI (Pasukan Pejuang Integrasi;
The PPI Commander as far as the witness knew was Joao Da Silva Tavares, and
the Deputy Commander was the Defendant Eurico Gutteres;
Besides being a PPI Deputy Commander Eurico Gutteres was also a
Commandant/Leader of Aitarak troops in Dili, the witness recognized the
defendant as a friend, a respected and influential young figure in Dili;
The person who delivered speech at the Big Rally in Dili Governor courtyard
on May 17, 1999 (sic!) was the Commander of PPI, Joao Da Silva Tavares, but
at that time, the witness did not see whether or not the Defendant delivered
a speech, because after Joao Tavares delivered his speech, the witness went
home ;
The witness had went home before the event was over, because the witness
felt that during that time in Dili and in East Timor in general there had
been turmoils between Pro Integration and Pro Independence, and if thousands
Pro Integration masses gathered at the ceremony, it would be possible that
riot would ensue;
Because the witness was worried that something or riot might happen, the
witness immediately went home before the ceremony was over to see and
protect his family;
When the ceremony was over, when the witness was at his home, then people
running away from Manuel Viegas Carrascalao's house, and when the witness
asked the people running what happened, they explained that Carrascalao's
house had been attacked by Militias after the ceremony was over;
The witness did not see whether the Defendant delivered a speech or stood on
the Podium, because before the ceremony was over, the witness had gone home;
The witness did not know who asked Tavares to give a speech, and did not
know whether Tavares gave a speech because the defendant had ordered him to
do;
As far as the witness remembered, the content of Tavares's Speech were,
among others, we should not accept ballot/popular consultation, we should
persist on Pro Integration, and was greeted by thousands masses that
gathered;
The gathering masses wore civilian clothes, some of them were from Aitarak,
BMT (sic!), Halilintar groups, and whether or not they were carrying weapons
the witness did not notice, but all of them was Pro Integration group;
The Pro Independence or anti Integration groups in East Timor, that the
witness knew were, among others, CNRT led by Samanta Toumagoa, Falintil,
Makigit led by Casio, Samba Sabika, whereas Manuel Viegas Carascalao was
CNRT main figure;
According to information the witness heard, those who attacked Manuel Viegas
Carrascalao's house were ceremony participants from Liquisa Regency and
those who had been attacked were refugees from Liquisa, the reason of the
attack the witness did not know;
The ceremony participants from Liquisa who wanted return to Liquisa did not
pass by or go through the road where Manuel Viegas Carrascalao's house was
located because from the location of ceremony at the Governor courtyard if
one wanted to return to Liquisa one should head toward the East, whereas
Manuel Viegas Carrascalao's house was located at the Western side of the
Governor Office, on the other hand, if one arrived from Liquisa towards the
Governor courtyard one would not pass by Manuel Viegas Carrascalao's house,
because one came from the Eastern part of Dili;
The Regent of Dili was FPDK Chairman, and the invitation to the ceremony for
teachers/Civil Servant (PNS) came from the FPDK;
As far as the witness knew, the Defendant who was Aitarak Commandant was not
a Civil Servant (PNS) and he had no job;
The Defendant as a Pro Integration Main Figure, an Aitarak Commandant, and a
PPI Deputy Commander, had influnce and was feared, was loyal and like
helping people, he had a lot of supporters the witness did not know the
number;
During the ceremony, thousands masses yelled, among others, long live the
Integration, live or dead for the Integration;
As far the witness knew, whatever the Defendant said his
supporters/subordinates always followed, the echo was listened to by his
group, for example if a dispute occured in an area, the Defendant Eurico
Guterres was able to prevent it, because the Defendant had influence on his
subordinates/group;
The ceremony at the Governor courtyard began at around 9 in the morning, the
Regent, the City Major, the Governor attended, but the one who delivered a
speech the witness saw was Tavares, the PPI Commander;
During the ceremony, the TNI, Police were present to guard, but did not do
anything;
Considering, that besides hearing the above witnesses' testimonies, the
Defendant Eurico Guterres' statement was also heard before the court, which
explained primarily as follow;
After Portugal left East Timor, a Coup was committed by Fretilin, a group
who wanted independence and fought against Partisan group, UDT group,
APODITI group which later on became Pro Integration group and received
support from the TNI;
The Defendant's father was a Fretilin member, a friend of Xanana Gusmao who
wanted independence, and many of the Defendant's relatives joined the
Fretilin;
The Defendant' father was a Fretilin member died in the civil war, because
the witness did not want to have a similar fate with his father, therefore
it forced the Defendant to join the Pro Integration group;
The Defendant's last job in Dili was a Gambling Dealer, which brought in
money and the money was distributed to Police and TNI who visited the
gambling place which was managed by the Defendant;
Besides being a Gambling Dealer, the Defendant worked as a Commandant of
Aitarak troop, a Deputy Commander of PPI in Dili, and lived in a former
Portugese Hotel called Tropikal belonged to East Timor Local Government;
The Defendant had been living in Dili since 1985, at first, did not have a
permanent adrress, later in 1999 since becoming a Commandant of Aitarak
group and Deputy Commander of PPI, he had been living in Tropikal, a place
where the Defendant managed the gambling, and also a place where Aitarak and
PPI established their headquarters;
PPI did not have any structure, for example no secretariat, no task force
etc, but had a leader and members, the Leaders was a Commander and a Deputy
Commander, while the members were Troops or groups of Pro Integration;
The Commander of PPI was Joao Da Silva Tavares, the Deputy Commander was
Eurico Guterres, there were also Deputies Commander of PPI in Dili namely
Casio and Juanico who ruled over and controlled Becora and Ainaro Dili;
PPI had members and it supervised Pro Integration communities and Youths in
all Regencies of East Timor, that were, Aitarak troop in Dili, BMP (Besi
Merah Putih) in Liqisa-Maubara, Halilintar in Maliana, Alpha in Los Palos,
and other groups of Pro Integration troops, like Mahidi, Laksaur, Ablai,
Saka Seramaha Domi, and the rest led by troops commandants;
PPI was a Military Wing of FPDK and BRRT groups or organizations,
politically they had been fighting for East Timor to remain integrated with
Indonesia, which on regency level, the leaders of FPDK and BRRT were the
Regents, on District level were the District Heads, and on village level
were the Village Heads;
The troops Commandants of Pro Integration in each Regency were equal to
Batalyon Commandants, who had the authority and rights to control their
troops in each Regency;
The PPI Commander, PPI Deputy Commanders and Pro Integration's troops
Commandant had duties, authority, and rights in each territory in fighting
against the Pro Independence groups such as CNRT, Falintil, and Fretilin;
Some of the Village Heads and Aitarak troops Commandants in the village were
TNI personnel, such as Lesi Derek, whose village the witness forgot;
There were thousands of Aitarak troops in Dili and in the villages
throughout Dili, they had weapons, such as machetes, rifles, mussers, G.3,
SKS, homemade rifles and homemade pistols, homemade mortars;
The Defendant did not know from where the weapons were obtained, but upon
joining the Defendant to be Aitarak troops, they already had the weapons and
their amunitions;
The Defendant admitted that he carried and owned the weapons. Firearms and
homemade weapons were banned, however apparatuses often conducted sweepings,
after the sweeping was conducted, they made the weapons again using welded
pipelines, the amunition was made of matchstick and paper, to fire, the
amunition in the gunbarrel was burned, and the bullets were made of stone or
pieces of metal;
The Defendant had 160 troops armed with firearms type SKS, G-3. mousser,
homemade rifles and pistols, and thousands armed with homemade weapons and
machetes, similar to weapons owned by other Pro Integration groups, such as
BMP, Halilintar etc, as well as Pro Independence groups;
The Defendant admitted that as a Deputy Commander of PPI and Commandant of
Aitarak, was able to control effectively his troops or subordinates who were
scattered in Dili and all villages throughout Dili, the Defendant's order
and instruction was obeyed by his troops or subordinates;
Among the Village Heads who were Heads of Aitarak/subordinates of Aitarak
troops, only one Village Head who was a bit stubborn and out of control,
namely, Head of Ainaro Village named Matheus, because he felt he was a
former Partisan member who had been warned by the Defendant because he
carried M.16 weapon owned by the TNI, the rest of the troops or the
Defendant's subordinates obeyed, loyal, under control, and followed the
Defendant's order;
The Defendant' activities as the Deputy Commander of PPI and Aitarak
Commandant began in 1999 from Defendant's headquarters, Tropikal Dili,
started with activities to organize Pro Integration young generation and
other Pro Integration community groups to love the Integration with
Indonesia, because Integration was the best way to independence, which began
to be threatened by anti Integration actions and movements, and also to
secure the community from the groups' intimidation and intrusion;
The Anti Integration groups who mentioned to often commit agitations,
terrors, intimidations, murders were the pro Independence group, such as
Falintil, Fretilin, CNRT, even churches were used as anti Integration
campaign posts;
In order to perform activities organizing Pro Integration masses and guiding
his troops and subordinates, the Defendant visited villages to explain the
meaning of Pro Integration, wide autonomy given by the Government to the
people, he came to villages either through invitation from Village Head or
through the Defendant's own initiative to come to the villages;
When disputes, clashes happened, the Defendant and his subordinates came to
the location to monitoring and resolve the problems to prevent further
disputes and clashes;
In guiding the troops, as a Deputy Commander of PPI and Aitarak Commandant,
the communication and information and instruction routes were performed
through the network of Village Heads, information from a certain area was
reported by Village Head to the Defendant, therefore the Defendant was able
to easily and quickly get the information on the incident in a particular
area, and as well as information and instruction from the Defendant to his
subordinates were relayed through the Village Heads, or they informed
verbally to the Defendant;
The Defendant had many or thousands members/masses of Aitarak group spread
out in 6 Districts, Villages and Regencies in Dili, they had weapons, such
as machetes, spears, arrows, G.3, SKS, mousser firearms, homemade rifles and
pistols, homemade mortars, the kinds of weapons that were also owned by
other Pro Integration groups under PPI, such as BMP, Halilintar etc and Pro
Independence groups such as Falintil, CNRT, Fretilin;
The Defendant himself had G.3 weapon inherited from the Portuguese, obtained
from PPI Commander Joao Da Silva Tavares, while he did not know from where
his subordinates got the weapons, the Aitarak troops had homemade rifles and
pistols, moussers, SKS, G.3, the numbers of them were around 160 people
trained to fight the Pro Independence groups;
The weapons had been collected in August 1999 before the ballot/popular
consultation by KPS, at that time there was kantongisasi (lit. sacking) by
Police, UNTAED and KPS members, but after the weapons were collected, the
weapons were brought back to Aitarak headquarters in Tropikal and kept in
the storage room, and was controlled everyday by the Police, or was opened
and showed when there was an inspection;
After the ballot/popular consultation was announced, the weapons had been
missing, the Defendant himself brought the weapons when he went out of Dili,
and handed them over to the responsible authority, had even been sentenced
in jail in relation to the possession of the weapons;
Regarding the mechanism of reporting, there were reports directly delivered
to the Defendant or the Defendant delivered them directly to his
subordinates, but most often the Defendant used the communication network
through Village Heads who were Aitarak Troops Commandants in the Villages;
As the Deputy Commander of PPI and PPI as a Military Wing of Pro Integration
group had been conducting several meetings with the Wing Military of Pro
Independece group which was the Falintil on the invitation from UNAMET/UN,
held a meeting before ballot/popular consultation, to maintain security
before the implementation of ballot/popular consultation and the result of
the meeting was reported to the Pro Integration groups including Aitarak
group or the Defendant's subordinates;
The Defendant admitted that there were terrors, intimidations, threats
committed by the Pro Integration groups as well as by Pro Independence
groups on the community in order to gather masses according to their own
aims;
As the Deputy Commander of PPI and Aitarak Commandant, the Defendant had
proposed request to UNAMET to delay the ballot/popular consultation after he
had seen many conflicts occurred;
As the Deputy Commander of PPI and Aitarak Commandant, the Defendant had
issued a statement that political elites should not leave Dili City before
and after the ballot/popular consultation, referring to the past experiences
when many political elites left Dili when conflicts broke out and neglected
the people;
It was correct that people asked letters from the Defendant, as the Deputy
Commander of PPI to escape from Dili safely, and thousands of that kind of
letters had been signed by the Defendant everyday;
According to information, if they did not bring a letter from the Defendant
or from the Deputy Commander of PPI, the refugees was not able to escape
Dili or encountered problems on their way, therefore the Defendant issued
the letter, including giving the letter to the Governor family who wanted to
flee Dili and went to Kupang;
Besides that, the Defendant often accompanied refugees who wanted to go to
NTT in order for them not to be disturbed;
The Pro Integration groups armed with weapons, such as Aitarak, BMP,
Hallintar, etc under PPI especially to face the threat from the Pro
Independence who were also armed with weapons, who were threatening the
community, government, therefore, the aim was to protect the community and
was ordered not to do anything harmful to people;
The Defendant's order as the Deputy Commander of PPI and Aitarak Commandant
was followed and Aitarak members followed the Defendant's order;
Regarding the election of the Defendant as the Commandant of Aitarak or the
Deputy Commander, that was because the spontaneous election from the
community themselves, and as a child of the nation the Defendant accepted
the responsibility afteg got elected;
Regarding the attributes the Defendant wore, as the Defendant wore in the
courtroom (in several times of the court sessions especially at the
beginning of the sessions) had been considered by the Defendant as a
honorary uniform as the Deputy Commander of PPI and Aitarak Commandant, that
was purchased at Jakarta markets;
Regarding the Aitarak troop's uniforms, was civilian clothes, some wore
camouflage uniforms, T Shirt printed with Timor island, because they could
not afford to buy military uniform or boots;
They possessed weapons to face the threat, but no one trained them, they
trained themselves, it was different from the Partisan era, whom the TNI
might have trained;
Regarding the links between the Aitarak group and PPI members who became Pam
Swakarsa members, Kamra, Hansip, because many of them who were jobless, some
of them were laborer, then some of them became Kamra under the guidance of
Kodim or the Police;
When there was Government's program to establish Pam Swakarsa, they were
paid Rp. 150.000 and 10 kg rice per month from the Local Government, many
PPI members including Aitarak troops who joined Pam Swakarsa;
The Defendant had proposed 150 Aitarak members to be Pam Swakarsa members,
then the became Pam Swakarsa Members and got salaries of Rp. 150.000 and 10
kg of rice from the Local Government;
The Chairman/ Leader of Pam Swakarsa in Dili was the Major of Dili City
Matheus Maia;
Pam Swakarsa's duty was to assist to secure public order and to help the
community to face the threats from Pro Independence groups, they were Pro
Integration group and there were also Pro Independence group who became Pam
Swakarsa members;
As the Deputy Commander of PPI and Aitarak Commandant, the Defendant had
issued a statement that whoever and from whichever groups that planned to
disturb security in Dili, would face the Aitarak group, and the Defendant
had stopped truckloads of masses who wanted to enter after receiving
information that there were masses who were coming to Dili City;
The Defendant, as the Deputy Commander of PPI and Aitarak Commandant, who
had the power and had a headquarters in Tropikal Dili, was a victim of those
who had clashed, because the Defendant took responsibility for every
disputes taking place in Dili, although it should had been the
responsibility of the State;
The defendant realized that before and right before the ballot/popular,
violent clashes had escalated between groups and realizing that security
responsibility rested on the Police, TNI and Indonesian Government, but at
that time, the Government did not do anything and the government situation
was crippled, resulted in conflicts everywhere. Seeing the development, upon
his own initiative as the Deputy Commander of PPI and Aitarak Commandant the
Defendant proposed to Unamet to postpone the implementation of
ballot/popular consultation, but it was neglected and the riot broke out;
The violence, disputes, and conflicts forced the people to take refuge
because the situation was not safe, either from Pro Integration or Pro
Independence;
The Defendant was closely acquainted with Manuel Viegas Carrascalao, because
he used to be a Pro Integration main figure, because of his brother had not
been elected as a Governor, then he betrayed and became a leader of Pro
Independence group, that was, a CNRT Leader;
Besides, the Defendant's house and Manuel Viegas Carrascalao' house were
next to the Defendant's headquarters in Tropikal, Dili, and the Defendant
knew that there were many refugees stayed at Manuel Viegas Carrascalao'
house;
The refugees stayed at Manuel Viegas Carrascalao' house were many, there
were children, mothers, young people, old people, and the Defendant had once
helped the refugees by giving several sacks of rice;
On the attack on Manuel Viegas Carrascalao' house the Defendant did not know
the incident, because at that time the Defendant was going to Becore to
visit the house of the Defendant's mother which had been burned by masses;
After visiting the Defendant's mother's house and returned to Tropikal,
Dili, seeing shattered glasses of Manuel Viegas Carrascalao' house and was
guarded by the Police, and according to the Defendant's wife, the attackers
had been Besi Merah Putih (BMP) group from Liquisa;
It was true that the Defendant had inaugurated Besi Merah Putih group in
Liquisa, the leader was Manuel Sousa, the inauguration was attended by more
or less 4 thousand people;
It was true that the attack on Manuel Viegas Carrascalao' house resulted in
11 people dead, including one of Manuel Viegas Carrascalao's son, named
Manelito, some wounded, and the Defendant had happened to help one victim,
Manuel Viegas Carrascalao's Aunt who had been injured and took her to Wira
Husada Hospital;
It was true that the attack on Manuel Viegas Carrascalao' house happened on
April 17, 1999 and before the attack in the morning a Big Rally held at Dili
Governor courtyard;
The Big Rally at the Governor courtyard on April 17, 1999 was initially a
Pam Swakarsa Big Inauguration Rally, the committe was from the Local
Government and it was planned that the one who would deliver speech was the
Governor of Dili or East Timor;
The Rally was held by Local Government, and the Defendant as Aitarak
Commandant and PPI Commander attented on invitation and the invitation to
the Defendant came from FPDK, the participants of the event were the
Commander of PPI, Joao Tavares, the Governor, the Major and the Regent of
Dili;
The participants of the ceremony were all Pro Integration group members of
PPI, they were groups of Aitarak troops, BMP, Halilintar, Alpa, Mahidi,
Laksaur, Ablai, Saka Sera, Maha Domi, and others and also Pam Swakarsa
members;
The person who led the Aitarak troops from Dili was the Defendant, the
invitations to come to the Governor courtyard was through Village Heads, and
the Commandant of the Ceremony was Jose Ximenes, an Aitarak group member;
The Big Rally was attended by thousands masses, more or less than 4.000 to
5.000 people, some of the masses carried homemade firearms, spears,
machetes, and it was possible that some of them carried M.16, who were TNI
personnels who joined there, but the Defendant could not identify the
persons;
In the Pam Swakarsa Rally, the PPI Commander inspected the troops on a open
jeep, and the Defendant was also on the Car, after that, the PPI Commander
Joao Dasilva Tavares delivered a speech, followed by the Defendant to give a
speech;
The Defendant did not know the reason why the Governor cancelled his speech,
and the Defendant and Joao Dasilva Tavares as Deputy Commander and Commander
of PPI delivered the speeches because they were asked by the Committe;
The Defendant had instructed the members of Aitarak troops to only carry
weapons such as sticks, but it was possible that there were members who
carried homemade weapons, the defendant saw that PPI members from BMP (Besi
Merah Putih) group led by Manuel Sausa from Liquisa, Maubara, carried
homemade weapons, because among them, there were people who fired upwards
during the Rally;
The main point of the speech delivered by Joao Dasilva Tavares as the PPI
Commander was that East Timor should always be united and be integrated with
Indonesia, but carried out in a peaceful means and rejected the
ballot/popular consultation for independence;
After that, the Defendant delivered a speech, whose main point was that the
Integration was the best way and extensive autonomy granted through remained
integrated with Indonesia the road to independence or prepare for
independence;
It was true that after the Defendant and Tavares finished the speeches,
there were shouting and yelling from the participants of the ceremony on the
field, yelling exterminate them, exterminate them, and there were those
firing guns upwards to greet the speeches;
However, the words such as kill them, exterminate them had oftenly heard in
campaigns by the Pro Independence group, said or yelled by campaign
participants to greet the speeches;
The defendant denied that in his speech he delivered any specific words or
special messages to kill Manuel Viegas Carrascalao's family, or to kill the
CNRT leaders as indicted by the Prosecuting Attorneys;
It was true that the event was covered and broadcast by radio, TV and
covered by the Media;
The Big Rally event was started at around 10 (Indonesian Eastern Time, sic!)
and finished at around 11 or more;
After the Rally in Governor courtyard was over, the troops dismissed and
they returned to their regions, on the way back riding trucks and cars could
not be considered as a parade around the city;
After the Rally was dismissed and the Defendant was having lunch, got news,
that the houses of the Defendant' mother and relatives in Bocora were burned
down by masses, therefore the Defendant went to Bocara and saw the houses of
the Defendant' mother and relatives were burned down completely, therefore
did not know about the incident at Manuel Viegas Carrascalao' house;
The Defendant knew the incident at Manuel Viegas Carrascalao' house, after
the Defendant's wife called the Defendant on HP, informing there was an
incident at Manuel Viegas Carrascalao' house which was committed by Besi
Merah Putih (BMP) group, then the Defendant went back to Tropikal, Dili, and
saw that Manuel Viegas Carrascalao' house had been completely destroyed;
After the incident, many Besi Merah Putih (BMP) members from Maubara Liquisa
and also Aitarak members were still at Aitarak headquarters, but the
Defendant could not do anything because he was worried that a clash between
Aitarak and BMP could had occurred, and after seeing Manuel's relative, who
was his Aunt wounded, the Defendant took the victim to the Wira Husada
hospital;
At that time, there were refugees from Manuel Viegas Carrascalao' house
inside the Defendant's room hidden by the Defendant's wife, because there
were troops of BMP group there and the Aitarak Headquarters in Tropikal was
full of BMP troops, therefore the refugees had to be saved;
The Defendant did not come inside the location of incident, which was the
Manuel Viegas Carrascalao' house, because the place had already been guarded
and marked by yellow tape by the Police or apparatuses;
It was true that Police and TNI guarded the location of Big Rally, it was
their task to safeguard any rallies and campaigns, but did not conduct any
action seeing the masses carried weapons and fired upwards;
All members of Aitarak who were members of Pam Swakarsa attended, there were
around 150 people wearing civilian clothes and carried weapon which was
sticks and did not wear any specific atributes;
The Aitarak members who carried firearms and homemade firearms besides
sticks most probably they were at the center or last row of the ceremony
participants, muddling with other PPI groups, because the fires were heard
from anywhere at the last row during the speeches;
The Defendant did not recognize the names of the dead or injuried persons as
the result of the clash at Manuel Viegas Carrascalao's house, as mentioned
in the indictment letter of Prosecuting Attorney, except Manuel Viegas
Carrascalao's son, named Manelito;
The Defendant did not know the names of the perpetrators of the attack on
Manuel Viegas Carrascalao's house, but according to the Defendant's wife,
they were from BMP group;
The perpetrators of the attack on Manuel Viegas Carrascalao's house had been
arrested, the numbers of them were 20 people, but the Defendant did not
recognize them and from which group, and did not know whether or not they
had been taken to the court because that matter was not under the
Defendant's responsibility, but was under Police's responsibility;
The Defendant did not know nor understand the reason of the attack on Manuel
Viegas Carrascalao's house, because even though the Defendant and Manuel
Viegas Carrascalao had different views, meetings were oftenly held in Manuel
Viegas Carrascalao's house, and the Defendant was present there to discuss
any matters about East Timor;
(notes from the Panel of Judges, during the trial of Manuel Viegas
Carrascalao, the Defendant strongly accused Manuel Viegas Carrascalao as a
traitor of the country and demanded that he should be brought to the court
and face the trial as a Defendant);
The Defendant did not do any action although participants at the Rally on
April 17, 1999 in East Timor Governor courtyard masses of the number (sic!)
and carried weapons, because according to the Defendant, there were
apparatuses, who were the TNI or Police guarding not doing anything towards
the people who carried the weapons;
The Defendant denied the attack on Leandro Isaac, because when the attack on
Leandro Isaac's house was taking place, the Defendant was in Becora, as far
as the Defendant knew, Leandro Isaac used to be a Pro Integration who failed
to be elected as a Regent, then had become Pro Independence and a CNRT
leader; and it was not true that the Defendant riding on a motorcycle
attacked Leandro Isaac's house;
The Defendant denied that the driver who used to drive his Toyota Kijang car
was a Kopassus member, the truth was, as said by the Defendant, his driver
was an East Timorese native who was supposed to take stand as a witness, but
until the Defendant was questioned, the witness had not been able to be
presented before the court;
Regarding there was parade participants clashed with the Pro Independence in
Ainaro, the Defendant did not know the incident, knowing it after the
incident, which was the participants returning home on vehicles upon
reaching Ainaro there were stones thrown on them by Pro Independence people,
and resulted in a clash and burning of the houses, the Defendant came to the
location of the incident after the clash was over and saw only ruins of the
burned down houses;
The witness did not see the incident of the attack on Pastor Rafael' house
in Liquisa on April 6, 1999;
One day before the incident, the Defendant had been asked by Bishop Bello to
see and solve (had been asked to help by Bishop Bello), had a chance to seek
information about the incident in Liquisa, but since it was already dark,
the Defendant could just come on the next day, on April 6;
Later, the Defendant went to Luquisa (sic!) and met Pastor Rafael in the
Church's courtyard, and asked whether there was Pro Independence group
committing murder in Liquisa and carried weapons hidden by the pastor, the
answer was that Jacinco and his friends chased after by people and carried
weapons;
The Defendant then informed that Pro integration Group, BMP, would
assault/attack if the perpetrator was not handed over and the pastor asked
the Defendant to see the Regent of Liquisa to arrange a meeting at Pastor
Rafael's house;
When the Defendant met the Liquisa Regent, Lemito Marten, he did not want to
come to the Pastor's because he was a high ranking official, after that, the
Defendant planned to go back to Dili;
The Defendant then went back to Pastor Rafael's and found out that Pro
Integration group: the BMP had already attacked Pastor Rafael's place, and
found that Jacinco, a Head of a Village, and his 3 friends had already been
dead, its relation (sic!) they had been found hiding in a bathroom and then
were killed;
On the way home, the Defendant met the Military Post Deputy Commander (Wa
Danrem) Mujiono, Col. Yayat and they gathered at the Liquisa MaKodim, had no
idea what they were talking about, because the Defendant went home right
away;
The Defendant did not know anything about the incident at Bishop Belo's
house and Dili Diocesan, because at that time the Defendant was accompanying
Refugees, after the incident was over, found out that an attack on refugees
at Bishop Belo in Dili Diocesan committed by Pro Independence groups who
were not satisfied in the result of the popular consultation/ballot and that
the house and Diocesan in Dili had been used to hide ballot cards, therefore
forced the people to attack Bishop Belo's house and Dili Diocesan;
Concerning the letter from the Pangdam, as was mentioned in a letter
submitted by the Prosecuting Attorney, on the details of incident in Ainaro,
when the Aitarak group after committing sweeping in Ainaro took a rest at
the Batallion Headquarters, then they returned to Aitarak Headquarters in
Tropical, the Defendant denied the evidence and the incident, and said that
the Head of Ainaro Village who claimed to be the Head of Aitarak Ainaro was
a Village Head who was out of control and stubborn, never obeyed any
instructions from the Defendant because considered as an ex-Partisan, and
had ever been warned by the Defendant because of carrying M.16 weapon
belonged to the TNI;
The Defendant recognized AK 47, M.16 weapons commonly used by the TNI, those
were found among Pro Integration and Pro Independence, the Defendant did not
know how it happened;
The firearms used by Pro Integration had usually been equipped with bullets,
the Defendant did not know from where the weapons and bullets were obtained;
Many Local natives who became TNI personnels, therefore it was possible that
TNI personnels joined Pro Integration and mingled with the masses while
carrying M.16, AK 47 weapons, but the defendant could not identify persons;
Concerning the close links between the Defendant and the TNI and Police, it
was true that the Defendant was oftenly asked by the Police and the TNI,
whether information (sic!) or resolved the conflicts, they asked for help
when disputes occurred for the Defendant to come to the location to resolve
or make sure if any of the Defendant's subordinates were involved;
The Defendant had not been arrested as a Gambling Dealer, even though they
knew and often gave them money, therefore considered as a loyal and close to
apparatuses, the Defendant said that it was common in Dili and in any big
cities including Jakarta;
The sacking of weapons (kantongisasi) by KPS was implemented among Pro
Integration only, no implementation among Pro Independence groups and
Fretilin;
The sacking of weapons among Pro Integration group including PPI, Aitarak
was implemented in August, shortly before popular consultation, it was
taking place at Paramuka field, witnessed by the Police, Cipol, KPS, but
after the weapons were collected, the weapons were handed over and brought
to Aitarak Headquarters, and Kept in a storage room or in a room in Aitarak
Headquarters and it was locked;
After the announcement of popular consultation/ballot result, gunshots had
been heard, burnings happened everywhere, including in Dili, therefore the
weapons in the storage room might have been taken by Aitarak members,
because at that time, either civilians or Indonesian Army (ABRI) as well the
Defendant had been busy to save themselves and fled from Dili to NTT (East
Nusa Tenggara), Kupang;
After the Government's announcement to implement the popular
consultation/ballot, in which the Government offered the OPSI (option) to
people to remain integrated with Indonesia through granting extensive
autonomy or independence, then, in order to struggle politically in order
East Timor remained integrated with Indoensia, FPDK and BRRT organizations
were establised;
PPI was a military wing of FFDK (sic!) and BRRT which fought the military
wing of Pro Independence under the CNRT, which were Falintil and Fretilin;
As a military wing, PPI had a structure, there was a Commander, Deputy
Commanders and troops of Pro Independence (sic!) groups which were under
PPI, therefore the Commander, Deputy Commanders, the Commandants of Pro
Integration troops, all were in charge in their own territories, and in
every activities they coordinated with FPDK and BRRT;
The leaders of FPDK, BRRT and Pro Integrations main figures had met the
President, and the Defendant as the PPI Deputy Commander and Aitarak
Commandant had also been invited and joined them to meet the President;
During the meeting with the President, at that time was President B.J.
Habibie, the President said that East Timor was a part of Indonesia, it was
the Indonesia's dignity, so not even the evil could separate East Timor from
Indonesia, therefore PDK, BRRT including the Defendant fought sternly over
East Timor to remain integrated with Indonesia;
The meeting between the Pro Integration leaders and main figures who
depended on (sic!) under FPDK and BRRT and the Defendant as the PPI Deputy
Commander was held shortly before the implementation of popular
consultation/ballot;
The FPDK, BRRT elements who met President B.J. Habibie were, among others,
the Governor, Regents, Major of Dili City and Pro Integration main figures;
The Defendant as Aitarak Commander owned around 1000 members in Dili, they
had weapons because there was threat from conflicting Facties such as
Falintil and they were told not to do any activity that would disadvantage
East Timor's position, because there were two conflicting factions in East
Timor;
The Defendant did not have any Aitarak members outside Dili, because each
region or regency had its own Pro Integration troops, such as BMP in Liquisa
Maubara, etc and each Commandant was responsible for his own region;
Concerning the wiping out, burning after the announcement of the result of
popular consultation/ballot, all communities in Dili whether the
apparatuses, the army, or the Police or individual Police had gotten
involved in the destruction and the extermination, that was the fact that
happened;
Considering, that the Prosecuting Attorney had submitted before the court
evidences, among others:
- 1 (one) Getau firearm/G-3 No. FMP.172322;
- 1 (one) SKS firearm No. OH.2289;
- 1 (one) Mauser firearm Los No.;
- 1 (one) Homemade firearm;
- 1 (one) Homemade Pistol;
- TNI Directive Commander:
No 02/P/ix/1999 dated on September 6, 1999, concerning the Military
Emergency Territorial Command of East Timor (Komando penguasa darurat
militer wilayah Timor Timur);
- Decrees (Surat Keputusan):
i. - Skep/991/P/XII/1998 dated December 31, 1998 concerning the Discharge
and Appointment within the Indonesian Army's Office (Pemberhentian dari dan
Pengangkatan Dalam Jabatan Di Lingkungan Angkatan Bersenjata RI/Indonesian
Army), for Maj. Gen. TNI I Gede Nyoman Asrana along with 99 personnel;
ii. - Skep/821/P/IX/1999 dated September 20, 1999 concerning the Use of
Authority of the Military Emergency Territorial Command of East Timor
(Penggunaan Wewenang Penguasa Darurat Militer Daerah Timor Timur);
- Letters of Order (Surat Perintah):
i. Sprin/757/IV/1999 dated April 15, 1999 concerning the Official Travel to
East Timor (Perjalanan Dinas Tim Tim) for Marsda Tamtomo along with three
personnel;
ii. Sprin/889/V/1999 dated May 10, 1999 concerning the Special Assignment to
Assist the Independent Commission (Bertugas Khusus Membantu Pelaksanaan
Komisi Independen) for Maj. Gen. Zacky Anwar Makarim along with two
personnel;
iii. Sprin/1096/VI/1999 dated June 04, 1999 concerning the Order to Maj.Gen.
Zacky Anwar Makarim along with two personnel as members of TP40KTT;
iv. Sprin/1660/VIII/1999 dated August 13, 1999 concerning Security Advisor
(Sebagai Penasehat Keamanan) P3TT in Dilli, East Timor for Maj.Gen. TNI
Zacky Anwar Makarim along with two personnel;
v. Sprin/1798/IX/1999 dated September 07, 1999 concerning the East Timor
Territorial Command (Penguasa Daerah Militer Wilayah Tim tim).
- Telegrams:
i. TR/614/1999 dated June 17, 1999 concerning the Security Guarantee in East
Timor;
ii. STR/675/5/1999 dated July 6, 1999 concerning Popular Consultation for
East Timorese;
iii. STR/551/1999 dated September 5, 1999 concerning the Anticipation of
Developing Situation in East Timor Territory.
- Reports of Situation (Laporan Situasi):
i. STR/560/1999 dated September 22, concerning the Report of Situation of
the Fourth Week dated September 14 to 20, 1999;
ii. STR/17/2000 dated January 20, 1999 concerning the Report on the
Indication of Worsening Security Situation in East Timor;
iii. R/33/1999 Lapsit dated October 11, 1999 concerning the Report of the
Development of the Situation in East Timor on October 11, 1999.
- Others (Special Report / Laporan Khusus):
i. R/184/Lapsus/IV/1999 dated April 7, 1999 concerning the Clashes between
Pro Integration and Anti Integration People in Liquica Regency;
ii. R/02/X/1999/Lapsus dated October 11, 1999 concerning the Chronology of
Incident on Gunshoot Contact between Interfet and TNI (Indonesian Army) and
POLRI (Indonesian Police) Troops;
iii. Suggestion from Pangdam IX/Udayana as Pangkoops TNI Nusara dated
September 7, 1999;
iv. STR/551/1999 dated September 5, 1999;
v. STR/553/1999 dated September 6, 1999;
vi. Letter of Order (Surat Perintah) from TNI Commander No.:
Prin/1798/P/IX/1999 dated September 7, 1999;
vii. STR/253/1999 dated April 13, 1999;
viii. STR/550/1999 dated August 31, 1999;
ix. STR/558/1999 dated September 3, 1999;
x. Letter of Order No.: Prin-/1000/VII/1998 dated July 30, 1998;
xi. TR/614/1999 dated June 17, 1999;
xii. STR/172/1999 dated May 5, 1999;
xiii. STR/223/1999 dated March 1999;
xiv. Examination (not visum et repertum) provided by 2nd Lieutenant CKM dr.
Maksum Pendelima;
xv. Situation Report No.: R/ / Lapsit/IX/1999;
xvi. Situation Report No.: R/ /IX/1999/Lapsit;
xvii. Special Report No.: R/ /Lapsus/IX/1999 dated September 22, 1999;
xviii. TR/909/P/1999 dated September 7, 1999;
attached in the dossier to be used in other cases.
Considering, the witnesses' testimonies and the Defendant statement before
the court and the material evidences presented before the court, it was true
the facts as follow:
The conflicts and disputes between Pro Integration and Pro Independence
groups during April until September 1999 in East Timor were related to the
announcement by Indonesian President concerning two OPSI offered to East
Timorese on January 27, 1999;
Over the long history of violence in East Timor, President B.J. Habibie seek
for a comprehensive resolution for East Timorese who had up to this moment
been in conflict, therefore President B.J. Habibie announced two OPSI for
East Timorese as a solution to resolve the long conflict, the two OPSI were:
1. First OPSI: a certain OPSI granted to East Timorese, if East Timorese
chose this OPSI, it means that East Timor would become a part of Indonesian
territory;
2. Second OPSI: reject the special autonomy, if this OPSI was chosen by the
people, East Timor no longer a part of Indonesian territory;
The offered comprehensive resolution of East Timorese problem by means of
the OPSI, welcomed by the UN, then followed by an agreement between the
Indonesian Government and Portuguese supervised by the UN and signed on May
5, 1999;
It could be said that the implementation of popular consultation/ballot in
East Timor started from an agreement between Indonesia and Portuguese,
initiated by the UN on May 5, 1999, and later in New York, the "New York
Agreement" between Indonesia, Portuguese and the UN, known as Tripartit
Agreement was signed;
The incident at Manuel Viegas Carrascalao happened before the "New York
Agreement" was signed and before the popular consultation/ballot was
implemented;
Before the incident on April 17, 1999, there were many civilians taking
shelters at Manuel Viegas Carrascalao's house such as: mothers, children,
youths, old people who came from Turiscai, Alas, Liquisa, Ainaro, Maubara,
numbered around 136 people, among the refugees, many felt insecure in their
regions, because they were threatened to be killed if they did not join BMP
or they took shelter because afraid of Pro Integration Militia;
On April 17, 1999, a Big Rally was held at East Timor Governor office
courtyard and was attended by more or less than 6000 people, the
participants came from all regencies in East Timor, the officials who
attended the event, among others were: East Timor Muspida, East Timor
Governor Abilio Osorio Soares, Regent of Dili, Major of Dili City;
The Big Rally at Governor office courtyard on April 17, 1999, was initially
a Pam Swakarsa Inauguration Rally, and the East Timor Governor was supposed
to deliver a speech, the committee was from the Local Government, the
Defendant as Aitarak Commandant and PPI Deputy Commander took part through
invitation from FPDK whose chair was Dominggus M.D. Soares, SH., MH.;
At noon, after the Big Rally was over, the participants of the Rally who
were passing by Manuel Viegas Carascalao's residence attacked Manuel Viegas
Carascalao's house;
One of the victim witnesses (saksi korban), named Alfredo Sanches who was
taking shelter at the house, when was at the back of the house, saw with his
own eyes a car loaded with Militias and TNI bumped into the front gate, then
after they were inside, they shot Manuel Viegas Carascalao's house which was
full of many refugees;
During the attack, the victim witness Afredo Sanches and his friends
Florindo De Jesus and Elduardo ran onto the wall behind the house, then
Antonio Besikau came, a TNI member whom Afredo Sanches recognized, and shot
Eduardo to death and Fransisco, a BMP member shot the witness with a
homemade weapon, so that the witness fell down, Fransisco, then, stabbed the
witness with knife resulted in the witness was injured (before the court,
the witness showed the part of his body which was shot at the back, chest,
near armpit, and hand);
Two TNI members named Yose Matheus and Theolifo Dasilva participated in the
attack, using weapons commonly used by they TNI, they came from Maubara.
Besides that, Kamra personnel Matheus de Santos, Inasio and Militias from
Maubara among others: Fransisco Alfonso, Honario Manuel Gonzalves, Nicolao,
Abrao, Joselino, Agusto also participated in the attack on Manuel Viegas
Carrascalao's house;
In order to go back to Liquisa, the participants of the Big Rally from
Liquisa were not supposed to pass by Manuel Viegas Carascalao's house,
because Liquisa was on the east while Manuel Viegas Carascalao's house was
on the west of East Timor Governor office, however when the Big Rally on
April 17, 1999, the participants of the Big Rally who was going to Liquisa
definitely passed by Manuel Viegas Carascalao's house;
The attack resulted in 17 refugees killed, including Manelito Carasscalao,
11 of them came from Maubara, besides the killed, many wounded victims had
been found, and during the attack, no police and TNI came to help;
On April 19, 1999, 11 corpses were brought to Maubara by army in 3 trucks,
then, the 11 corpses in the coffins were buried in 11 holes in Lebukee
Maubara, and attended by Danramil, Maubara District Head, Militias and the
families' victims, among the killed were Raul Dos Santos, Alfonso, Eduardo;
The dead victims as result of the attack of Militias, Aitarak, BMP, and PPI
among others were: 1. Raul dos Santos, 2. Alberto dos Santos, 3. Januario
Pareira, 4. Rafael dos Santos, 5. Casar, 6. Avelino, 7. Crisanto dos Santos,
8. Alfonso Ribeiro, 9. Eduardo de Jesus, 10. Antonio Da Silva, 11. Joao Da
Silva, 12. Manelito Carrascalao;
Witness Florindo De Jesus saw the 11 corpses at Wira Husada hospital, one
other corpse was his brother, all corpses were put into black wooden
coffins, the witness saw that the corpses were in a horrible condition, some
of them were cut, some other corpses their faces were covered by blood;
On April 17, 1999 at 11. 30 witness Leandro Isaac's house was attacked by
more or less than 40 Militias led by the Defendant Eurico Gutteres, at that
time, the Defendant rode on a motorcycle in the first row of the convoy
right away entered the back of the witness' house and committed the attack;
Miltia's convoy which committed the attack consisted of 2 trucks, 1 kijang
pick up, 1 kijang minibus, and 8 motorcycles;
Witness Victor Dos Santos alias Apin around 12 at noon on that day, saw
Aitarak Militia and BMP rode on a truck and stopped at Manuel Viegas
Carrascalao' house, among the militias, the witness recognized a soldier who
wore militia uniform, the witness recognized the soldier because he often
saw him at Aitarak Headquarters in Tropikal Dili. Later, the militias left
the place and returned around one hour later and committed an attack on
Manuel Viegas Carrascalao' house;
The Regent of Dili, Dominggus M.D. Soares suggested the East Timor Governor
to held an Inauguration Rally of Pam Swakarsa in Dili as the capital city of
East Timor, after the Governor gave guidance, then a committee of the Pam
Swakarsa Inauguration Rally was established;
Militia groups belonged to the military, whose aim was to defend the
integration, this group had a special relationship with the military,
because it was supported by the military, such as support of weapons, the
military who supported the militias was Kopassus;
Victim witness Manuel Viegas Carasscalao knew that his house was going to be
attacked from radio news around 10 to 11 in the morning when the defendant
Eurico Gutteres said " kill all Manuel Viegas Carasscalao's family" and the
witness also received phonecalls from the witness' son Manelito Carasscalao
and the witness' friends both from Pro Independence and Pro Integration, who
said that his house was going to be attcked by the Militias, then, the
witness met the Danrem, Col. TNI. Tono Suratman, to ask protection and to
inform that his house was going to be attacked by the Militias, but the
Danrem only made fun of the witness when the witness asked weapons to fight
the Militias and aked the witness to ask weapons from CNRT;
Victim witness Manuel Viegas Carasscalao had earlier struggled for Pro
Integration, but after witnessing the TNI's cruel and heartless actions on
the community, quickly arresting, shooting, the witness did no longer
support the Pro Integration because it has made the people suffered, also
when the witness was a member of the East Timor Provincial Legislative
Council (DPRD) struggling for Pro Integration, the witness had ever been
offered a rifle and a pistol by Pangdam Maj. Gen. Dading Kalbuadi.
The attack on Manuel Viegas Carasscalao' house by Pro Integration group and
the military had destroyed the house, many damages inside the house,
bulletholes found on the walls, bloodspots on the floor and wall, windows
had been shattered;
Injured victim witnesses as a result of the attack on Manuel Viegas
Carasscalao' house, among others were: Victor dos Santos, Alfredo Sanches,
Florindo De Jesus were taken from the location by an ambulance and the
ambulance was stopped by the police in front of the Aitarak Headquarters in
Tropikal. Holding machetes, homemade weapons, and pistols, they surrounded
the ambulance and shouted, "kill right away", one hour later, the
ambulance's driver brought the victim witnesses to Wira Husada Hospital in
Dili;
Witness Santiago dos Santos heard from the radio news on April 17, 1999,
that Eurico Gutteres, during the Big Rally delivered a speech and gave
command to "exterminate all CNRT leaders, in particular Manuel Viegas
Carrascalao's family;
The Pro Integration group consisted of among others were Aitarak, MAHIDI,
BMP, SEKAP, SAKA SERA, ALPHA, ABLAI, MAHA DOMI, LAKSAUR, BRRT (Barisan
Rakyat Timor Timur), FPDK (Forum Persatuan Demokrasi Keadilan) as the
political wing, the PPI was a military wing of FPDK and BRRT which
politically struggled for East Timor to remain integrated with Indonesia,
later PPI became a member of Pam Swakarsa; on regencies level, the leaders
of FPDK and BRRT were the Regents themselves, the leaders on districts level
were the District Heads, and the leaders in the villages were the Village
Heads;
Pro Independence group consisted of RMA, LAKTAO, AIPESAKH, FALINTIL (as a
military wing), CNRT (as a political wing), FRETILIN;
PPI Commandants in each regency were equal to Batallion Commandants who had
power and authority to arrange their troops in each territory to fight CNRT,
FALINTIL, FRETILIN;
The numbers of Aitarak troops in Dili and in all villages reached thousands
of people, they owned weapons such as machetes, rifles, Mausser, G.3
(Getmi), SKS, homemade firearms, such as homemade rifles and homemade
pistols, homemade mortars, they had already owned the weapons before they
joined the Defendant;
As the Deputy Commander and Commandant of Aitarak in Dili, the Defendant had
members scattered throughout the 6 villages in Dili and the Village Heads
were both Aitarak members and Aitarak leaders in Dili villages;
Conflicts between Pro Integration and Pro independence groups often
occurred, therefore in order to prevent the conflicts, coordination meetings
between the Governor and the Regents had been held to hear their reports and
propose the establishment of Pam Swakarsa, then each Regent intitiated the
establishment of the Pam Swakarsa, to help maintaining security and public
order, followed by the Governor Decision to reactivate the Pam Swakarsa
which had been existed in East Timor before;
Originated from a Partisan group called COMBATITA ANTI COMUNISTA formerly
established to fight the communist in East Timor, then to struggle for Pro
Integration the PPI was created in East Timor around August 18, 1974, at
that time its leader was Viegas Carasscalao, an anti Clandestine activist;
After Portuguese had left East Timor, a "coup" was launched by Fretilin, a
group who wanted independence and fought against the Partisan group, the UDT
group, APODITU, who later became Pro Integration group supported by the TNI;
The Defendant's father was a Fretilin member, a friend of Xanana Gusmao who
wanted independence, the Defendant's father was killed in the civil war,
this incident forced the Defendant to join Pro Integration group because he
did not want to be like his father;
The Defendant had been living in Dili since 1985, the latest job the
Defendant had was as a gambling dealer, the money he got from the gambling
was distributed to the Police and TNI who visited the gambling place the
Defendant managed;
Besides as a gambling dealer, the Defendant's job in Dili since 1996 was an
Aitarak Commandant and a PPI Deputy Commander, had a Headquartes in Tropikal
Dili, a former Portuguese hotel owned by the East Timor Local Government;
the other two Deputy Commanders were Casio and Juanico who had authorities
on Becora and Ainaro Dili, the PPI Commander was Joao Tavares who was also a
HALILINTAR Commandant;
PPI had no structure, but it had leaders and members, the members were
troops or Pro Integration groups, PPI had members and supervised Pro
Integration communities, youths in all regencies of East Timor;
The Defendant had thousands members or masses of Aitarak troops scatterred
in 6 (six) districts in Dili, villages in Dili and Dili regency, they owned
firearms of the types SKS, G.3, Mousser, AK 47, M 16, homemade rifles and
homemade pistols, homemade mitraliur, spears, machetes, arrows, these types
of weapons were also owned by other Pro Integration groups, such as BMP,
HALILINTAR, as well as the Pro Indepedence groups such as FALINTIL, CNRT,
and FRETILIN;
These homemade weapons were made of welded ironpipes, the amunition was made
of matchsticks and papers, to ignite them, the amunition inside the gunpipe
was burned, the bullets could be made of stones or pieces of iron;
The Defendant himself owned G.3 weapon left by the Portuguese that he got
from the PPI Commander, Joao Tavares, the Defendant's weapon and Aitarak
troops' weapons had been collected in August 1999 before the popular
consultation/ballot by KPS, at that time, there was kantongisasi executed by
the Police, UNTAET, KPS, but after the weapons had been collected, the
weapons were brought to and stored in a storage room at Aitarak Headquarters
in Tropikal, controlled everyday by the Police, and whenever there was an
inspection it was opened and shown;
After the announcement of popular consultation/ballot, the weapons were no
longer found in the storage room, the Defendant himself took a weapon out of
Dili and handed it over to the authority, even the Defendant had been
sentenced for weapon posssesion;
It was the fact that practices of terror, intimidation, threat had been
committed by both Pro Integration and Pro Independence groups to gather
masses to achieve their own goals;
As an Aitarak Commandant and as a Deputy Commander, the Defendant had given
a statement that political elites should not leave Dili City before and
after popular consultation/ballot, because in the past, many political
elites left Dili when conflicts occured;
The Defendant issued a kind of travel letter to help people fleeing from
Dili, because people could not manage to escape from Dili and often found
troubles on the way, therefore the Defendant signed thousands of travel
letters everyday;
At the beginning of the court sessions, the Defendant wore military
attributes, a green camouflage outfit, which to the Defendant was a honoured
uniform as a Commandant of Aitarak troops and a PPI Deputy Commander, which
had been purchased at Jakarta markets by the Defendant, whereas some of the
Aitarak troops wore civilian clothes, camouflage uniform and T Shisrts
printed with Timor Island, because they could not afford military outfits
and boots;
Aitarak troops or PPI members who became Pam Swakarsa, Hansip, Kamra were
trained by Kodim or the Police, because many of them were jobless, the Pam
Swakarsa members were paid Rp. 150.000,- and 10 kg rice per month by the
Local Government;
The Defendant as the Deputy Commander or Aitarak Commandant was able to
exercise effective control on his troops or subordinates who were spread
throughout Dili and in all Dili villages, his order and instruction was
obeyed by his troops and subordinates;
Before and shortly before the popular consultation/ballot, the clashes and
violence had became more extensive between the Pro Independence and Pro
Integration groups, the Police/TNI and the Indonesian Government should be
responsible, but at that time, the apparatuses ignored and relented,
therefore the disputes occurred everywhere; this situation forced the Pro
Integration and Pro Independence people to take refugee since the situation
had no longer been safe;
The person who led the Aitarak troops in Dili was the Defendant, the
instruction given to Aitarak troops to come to the Governor office courtyard
was relayed through Village Heads, the Field Commander of the Ceremony
(Komandan Upacara) was a member of Aitarak troops named Jose Ximenes, among
the participants, there were people carrying M.16 weapons, those were the
TNI members who joined the crowd;
At the Pam Swakarsa Rally, there was an inspection of the troops by the PPI
Commander riding a jeep and the Defendant accompanied him on the car, after
that, Joao Tavares as the PPI Commander delivered a speech, the main point
of the speech was "East Timor should remain integrated with Indonesia, but
it should be done in a peaceful way, and rejected the popular
consultation/ballot to achieve the independence", after the PPI Commander
ended his speech, then the Defendant delivered his speech;
During the speeches delivered by the Defendant and the PPI Commander,
shoutings and yellings were heard among the participants in the field, they
shouted, exterminate them, kill them, and fired the weapons upwards to greet
the speeches;
It was true that the event was covered by and broadcast on the RRI, TV and
mass media, and when the ceremony was over, the Defendant and other Pro
Integration main figures had lunch at a special location, near the East
Timor Governor office;
After the incident at Manuel Viegas Carasscalao's house, many Aitarak
members and BMP members from Liquisa still gathered at Aitarak Headquarters
in Tropikal;
During the Big Rally Ceremony, there were the Police and TNI personnel to
safeguard, but they did not do anything on seeing the masses or participants
carried weapons or fired the weapons upwards;
On April 5 and 6, 1999, an attack on Pastor Rafael's residence/ house and
Catholic Church in Liquisa took place committed by Pro Independence Group
(sic!), resulting in civilians consisting of children, mothers, and old
people taking shelter inside the church dead and wounded;
On September 6, 1999 a raid on Bishop Bello's house and Dili Diocesan took
place committed by Pro Integration Group who were dissapointed of the result
of popular consultation/ballot and were informed that Bishop Bello house
residence and Dili Diocesan had been used to store the ballotboxes;
Many Childs of the Local Native (Putra Daerah) became TNI members and joined
the Pro Independence (sic!) and joined the groups of masses, therefore there
were AK 47 and M 16 weapons commonly used by the TNI had been found in the
Big Rally, but the Defendant could not identify the persons;
The close link between the Defendant and the Polri and TNI derived from the
apparatuses often asked the Defendant for information and for help to settle
conflicts and disputes or to identify the Defendant's subordinates involved;
After the popular consultation/ballot result was announced, shootings were
heard everywhere, burnings were taking place, so it was possible that the
weapons stored in the storage room might had been taken by Aitarak members;
Regading the incident of exterminations, burnings after the announcement of
the result of the popular consultation/ballot, all communities in Dili,
apparatuses, the Police and the army had all been involved in committing
destructions and exterminations, that was the fact of what was going on;
Bullets of the homemade weapons were the bullets made of pieces of stone
cement (beton) mixed with matchstick amunition;
There was a telegram from Pangdam Udayana about the incident in Ainaro,
where Aitarak group after committing the sweeping visited the Batallion
Headquarters to take a rest, then they returned to the Aitarak headquarters
in Tropikal Dili;
Considering, that before the Panel of Judges makes a judgement and further
deliberates on this case of Grave Human Rights violation, it is necessary to
consider several principles of Laws which underlines a certain decision on a
criminal case, among others shall be:
Law No.14/1970 on the Basic Principles of Judicial Authority
Article 1 A Judicial Authority is an independent authority of the State to
arrange for the administration of justice in order to uphold the law and
justice based on Pancasila, For the Sake of the State of Law of the Republic
of Indonesia
Article 4 (1) Any involvement in the administration of justice outside of
the judicial authority shall be prohibited, except for the functioning of
the State of Law of the Republic of Indonesia
Article 5 (1) No one shall be criminally sentenced except on the occasion of
the court based on legal and convincing evidences finds that the person
shall be responsible for the deeds charged on him/her
These principles shall become a pillar of the law for the independency of
the Panel of Judges to make a judgement on the case
Considering, that besides that, since this case is concerning a Grave Human
Rights violation, it is considered necessary to refer to several general
principles of the International Laws concerning the universal crimes against
humanity, as follow:
That no one is above the Law, that a responsibility shall be taken, and that
no one can escape from the Law for his/her past or future crimes;
That the crimes against humanity, the crimes of war and genicode are hostis
humanis generis (crimes against a common humanity) which are included in the
international crimes of any lawsuit and punishment (sic!);
The crimes against humanity is a part of general law principles acknowledged
by nations, a person who commits a crime (comission), or consent (omssion,
sic!) shall be charged retroactively;
Considering, that in the explanation of Law no 26/2000 on Human Rights
Court, mentioned that Grave Human Rights violation is an "Extra Ordinary
Crimes", while in the explanation Article 7 of the same Law mentioned that
genocides and crimes against humanity are adapted from the "Rome Statute of
International Criminal Court" (Article 6 and Article 7), therefore the
law-makers and the Government had been adopting the International Law
principles into national laws, so that applying the International Law
principles, conventions and judicial practices on the perpetrators of the
crimes against humanity shall be applied in the court of Grave Human Rights
Violation in our Country, as in this case is valid as long as there is any
relevancies in the case of Grave Human Rights Violation in East Timor.
Considering, that besides refering the above law principles, the Panel of
Judges considered it is necessary to present and discuss several principles
related to verification in the Criminal Code, which consists of the system
of verification, and how a Judge's stance in examining each of the
evidences, which shall be used as a guidance and basis to adjudicate this
case, since Article 10 Law No.26/2000 on Human Rights Court stated that,
among others, which was not stated otherwise in this law, the code (Hukum
Acara) on Grave Human Rights Violation was implemented based on the Criminal
Code principles, therefore Law No.8/1981 KUHAP was stipulated as a basis for
the Code on Grave Human Rights Violation, including the system of
verification.
Verification According to Negative Law (Negatif Wettelijk Stetsel)
The verification system according to the Negative Law is a theory that is
situated between the verification system according to positive law and the
verification system according to Judge's conviction or Conviction in Time.
This system is a balanced system between the two contradicting extreme
systems. According to this system, whether a Defendant guilty or not guilty
is determined by the Judge's conviction based on legal ways and evidences
(alat bukti) according to the Law;
Based on the above principles, then, in order to determine whether a
Defendant is guilty or not guilty, two components shall be considered:
a. Verification shall be conducted according to legal ways and evidences
according to the Law.
b. and the Judge's conviction shall also based on legal stipulations, ways
and evidences according to the Law.
Considering, that based on Article 183 KUHAP which states as follow:
"A Judge is not allowed to pronounce a criminal sentence on anyone, expect
through at least two legal evidences, he arrives at a conviction that a
crime has really happened and that the Defendant is guilty for having
committed it."
Considering, that the above articles concluded that our Criminal Code
follows the verification system according to the Negatif Law (Negatif
Wetttelijk Stetsel).
Therefore, Article 183 KUHAP states that in order to determine whether a
Defendant is guilty or not guilty, and to pronounce a criminal sentence on
the Defendant, therefore:
His crimes shall be proven by at least two legal evidences and
On the verification by at least two legal evidences, the Judge arrives at a
conviction that a crime has really happened and the Defendant is guilty for
having committed it;
Considering, that article 184 paragraph (1) KUHAP has limitatively mentioned
legal evidences according to the Law, as follow:
a. Witness' Testimony
b. Expert's Testimony
c. Letters
d. Clues
e. Defendant's Statement
Considering, that when article 183 is related to article 184 paragraph (1)
KUHAP, therefore it means that a Defendant could be sentenced if his/her
crimes could be proven by at least two evidences out of the above five
evidences;
Therefore, the minimum verification which can be weighted to sufficiently
prove a Defendant's crime are at least through verification of two legal
evidences;
Considering, that the next question to the Panel of Judges is, what the 5
(five) evidences as mentioned in the article 184 paragraph (1) KUHAP mean,
and what the requirements to fulfill it are;
Considering, that therefore the Panel of Judges need to explain the meaning
of each of the evidences, and how the Judge's stance on the evidences which
has become a guidance in adjudication of the case;
1. Witness' Testimony
Witness' testimony as an evidence is statements delivered by the witness
before the Court on a criminal incident heard, witnessed, and experienced by
him/herself, by giving explanations of the knowledge, and the witness'
statement was taken under oath according to his/her Religion as stipulated
in article 185 paragraph (1) jo article 1 point 27 jo article 160 paragraph
(3) KUHAP.
A statement of a witness who has not been taken under oath, even though it
conforms the others, is not considered as an evidence, but if the statement
conforms to the statement of a witness who has been taken under oath, can be
used as an addition to other legal evidences;
The Law also stipulates that, if a witness is passed away after giving
statements in the investigation or due to any legal reason that he/she is
not be able to attend the trial or cannot be summoned to attend the trial
because his/her residence is too far, or due to any other reasons related to
the National interest, then, his/her statement shall be read, and if the
statement has been given earlier under oath, then, the statement has on
equal weight to the under oath statement given by the witness before the
court (article 162) paragraph (1) and (2) KUHAP.
Regarding how the Judges examine the validity of the witness statement, the
KUHAP stipulates the guidelines as follow:
a. The connection between one witness' statement and other witnesses'
statement;
b. The connection between one witness' statement and other evidences;
c. The reason which might be given by the witness to deliver a certain
statement;
d. The witness' way of life and morality and any matters which can affect
the reliability of the statement;
Statements delivered separately by several witnesses on an incident or a
situation can be used as an evidence, as long as the statements were related
to each other, so that it verifies the fact of an incident or a specific
situation (article 185, paragraph 4).
Any opinion or presumption derived from merely a thought process is not
witness' statement article 185, paragraph (5) KUHAP, also the statement
given by other person or testimonium de auditu is not included as the
witness' statement (explanation of article 185, paragraph 4).
The Law does not explicitly mention about the weight of evidence of a
witness' statement read before the court without taken under oath.
Based on the stipulation in article 161, paragraph (2), related to article
185, paragraph (7),
Then, M. Yahya Harahap SH, in his book Pembahasan Permasalahan dan Penerapan
KUHAP Jilid II (The Discussion of Problems and Implementations of KUHAP, 2nd
Volume), page 815, argues that the witness' statement taken without under
oath before the court is not an evidence and has no weight of verificating
evidence (nilai kekuatan pembuktian), but it can be used as a legal
additional evidence to convice the Judges.
How about the weight of verificating evidence of a witness' statement taken
under oath?
As has been described before, to make the witness' statement legal as an
evidence, several requirements shall be accomplished:
- Shall take an oath or vow;
- The crime incident shall be heard, witnessed, experienced by the witness
him/herself, and shall explain the reason of his/her knowledge;
- The witness' statement shall be delivered before the court, and;
- A statement delivered by one witness is not adequate;
Considering, that if a witness statement has accomplished the requirements
above, can it be said that the witness' statement automatically binds and
determines for the Judges, the answer is no, therefore, basically, the
witness' statement as an evidence in a criminal case has unbinding weight of
verificating evidence (mempunyai kekuatan pembuktian yg bebas), therefore no
perfect verificating weight lies on the evidence of witness' testimony
(Volledig Bewijkracht) and nor lies on the weight of binding and determining
verification (Beslissende Bewijkracht).
Considering, that based on the description above, a Judge can, with certain
reasons, accept or ignore a witness' statement, even though the Judge cannot
do it without any reason to accept or ignore the witness' testimony, but
shall do it in responsible manner, with moral integrity and honesty, the
characters which a good Judge should own.
2. Expert's Testimony:
An expert's testimony is a statement given by a person who has a special
skill about something needed in order to shed light on a criminal case, for
need of investigation stated before the Court (article 1 point 28 jo article
186 KUHAP).
Similar to the witness' testimony above, the Expert's testimony has no
weight of binding and determining verification, therefore the expert's
testimony has unbinding verificating weight (nilai pembuktian yg bebas) or
vrij bewrijkracht;
3. Letters:
According to article 187 KUHAP, a Letter could be considered as a legal
evidence, they are:
- A Letter written under Official Oath;
- A Letter written under Oath;
The article 187 KUHAP has explicitely elaborated the letters considered
having weight of evidence:
a. Deposition and other official letters written by authorized Officers or
written before the authorized Officers, under a condition that the letter
consist of:
- The incident or the situation that the Officer has heard, witnessed and
experienced him/herself, with explicit reasons about his/her explanation;
b. A kind of letter met the requirement stipulated by the Law or a letter
written by an official about such specific matter under his/her authorities
and which is aimed to prove a certain incident or situaton;
c. An expert's statement that consists of opinion based on his/her knowledge
about an incident or situation, officialy asked from him/her;
d. Other letters are valid, only if their contents are relevant to the other
evidences;
The letters described in a, b and c are official letters written by
authorized Officers or based on stipulations or an expert's letter of
statement about a specific situation written under oath or official oath or
is warranted by an oath, while the letter described in d is a form of common
letter;
That the weight of letter evidence is equal to witness' testimony or
expert's statement, those have unbinding weight of evidence, the Judge is
free to weight the evidence, because the principle of crime investigation is
to seek the truth (Materiel Waarheid) and not the Formal Truth (Formeel
Waarheid).
4. Clues:
Clue is an action, incident or a situation which is relevant to each other
or to the crime, and indicated that a crime had happened and the perpetrator
of the crime, and the clue is obtained from:
a. Witness' Testimony
b. Letters
c. Defendant's Statement
(article 188, paragraph 1 and 2 KUHAP)
If a Judge wants to use a clue as an evidence to prove the Defendant's
crime, the Law insisted that the Judge should use his/her responsibility and
conscience.
Article 188, paragraph (3) states that, the weight of an evidence of a clue
in a specific situation should be implemented by the Judge with Wisdom and
Wise, after he has carefully examined with his/her conscience.
Considering, that from the stipulation above, it could be concluded that a
Judge should not use clue as an evidence to prove the Defendant's crime,
unless in a crucial and critical situation, the Judge should examine and use
other evidences, and if the evidence has been used to their maximal
capacities but has not been adequate, then use the clue as an evidence.
Regarding the weight of the clue evidence is equal to the witness'
testimony, the experts's statement and the letter, has unbinding weight of
evidence (sifat pembuktian yg bebas), therefore the Judge is free to weight
and to use it as an evidence, and clue could not stand by itself in proving
the Defendant's crime.
5. The Defendant's Statement:
The Defendant's Statement is what the defendant delivers before the court
about an action he has committed or known to or has experienced him/herself,
and the defendant's statement could be used only on him/herself.
(article 189 paragraph (1) and paragraph (3)).
The Defendant's statement delivered outside of the court can be used to help
finding evidences in the court, as far as the statement is supported by
legal evidences in relation to the crime charged on him/her, and the
Defendant's statement is not sufficient to prove that he/she is guilty of
doing charged crime, but it shall be supported by other evidences (article
189 paragraph (2) and paragraph (4) KUHAP.
Considering, that the weight of evidence of the Defendant's statement is
equal to other evidences as mentioned above, that is it has unbinding weight
of evidence because the Judge is not bound to the weight of evidence in the
Defendant's statement. The Judge could accept or ignore it as an evidence
with a particular reason. Besides that, only the Defendant's statement will
not be sufficient to prove that he/she is guilty for committing the charged
crime, but it should be supported by other evidences.
Considering, that based on the explanation above, after the Panel of Judges
has listened to the witness testimony, delivered or read before the court,
as well as the Defendant's statement delivered before the court and has
examined carefully the evidences presented before the court, the Panel of
Judges should examine first the witnesses' testimonies;
Considering, that out of the 11 (eleven) witnesses that have been proposed,
only 7 (seven) have been presented before the court:
Witness 5 DRS. BASILIO DIAS APAJUO
Witness 6 JOSE AFAT MPA
Witness 7 SUJARWO
Witness 8 ABILIO JOSE OSORIO SOARES
Witness 9 JOAO DA SILVA TAVARES
Witness 10 AGUSTINUS B. PANGARIBUAN
Witness 11 DOMINGGUS DIAS
Their testimonies have been accepted by the Defendant, whereas regarding the
4 witnesses presented before the court named: Witness 1 Aflredo Sanches,
Witness 2 Julio Sousa, Witness 3 Dominggus Boavida and Witness 4 Manuel
Viegas Carascalao, their testimonies have been rejected by the Defendant;
Considering, that the Defendant and the Defendant's Lawyer Team have
rejected the reading of testimonies of the witnesses Leondo Isaac, Victor
Dos santos, Santiago Dos Santos, Florendo De Jesus, Manria Christiana
Carascalao, although the witnesses have been taken oath by investigators
from the Attorney General Office, as well as regarding the testimonies of
witnesses Juanico Dasiva, and Suparno who have not been taken oath before,
and rejected the witnesses' testimonies, after their testimonies were read
before the court;
Considering, that the reading of BAP of the witnesses' testimonies (sic!)
before the court, which has been deliberated by the Judges above, are legal
according to the law since the Law which is the KUHAP verified the practice,
at least it does not violate the law, because the reason of the reading of
the witnesses' testimonies has fulfilled the reason mentioned in article 162
KUHAP (Law No.8/1981), so that the stipulations are applied in the case of
Grave Human Rights Violation in East Timor, which is this case;
Considering, that in this case, one (sic!) witness who is also a victim has
been presented, and is the witness who experienced and saw himself the
incident of attack on Manuel Viegas Carrascalao's house on April 17, 1999,
the witnesses are: Witness 1 Alfredo Sanches, and Witness Victor Dos Santos
alias Apin, Santiago Dos Santos, Florendo De Jesus who witnessed and
experienced the incident of the attack at the house whose testimonies have
been read before the court;
Considering, that before the court, witness 1 Afredo Sanches, testified
among others:
On April 17, 1999, the witness was at Manuel Viegas Carascalao's house in
Dili, he had been staying there as a refugee since February 1999 after fled
from his home in Laubuaae (sic) Maubara because he was afraid, forced to be
a militia member;
What the witness meant by militia groups were Aitarak, Besi Merah Putih
(BMP), Naga Merah groups and others who were Pro Integration;
Considering, that the witness 1 Alfredo Sanches' testimony that he was at
Carascalao's place as a refugee is reliable, because his testimony is
supported by testimonies of witnesses Santiago De Santos and Florendo de
Jesus, who said among others that they had been chased down and had been
looked for in their regions to be forced as Militia members, they were
afraid and fled to Dili and stayed as refugees at Manuel Viegas Carascalao's
house;
Considering, that the Defendant admitted before the court that before and
shortly before the popular consultation/ballot around 1999, he admitted
there were suppressions, terrors and intimidations on civilians committed by
both the Pro Integration as well as the Pro Independence groups;
Considering, that the witnesses' testimonies of Witness 1 Alfredo Sanches,
as well as Florendo De Jesus and Santiago De Jesus are reliable, that they
were civilians who became refugees because suppressions, terrors and
intimidations had forced them to flee to Dili and to stay at Manuel Viegas
Carrascalao's house;
Considering, that as testified by witness 4 Manuel Viegas Carascalao, before
the attack took place, at his house there had been 136 refugees, and after
the attack, the numbers were more or less than 60 people, while according to
witness Maria Christiana Carascalao, besides the refugees at his house,
there was a friend of his brother named Manelito;
Considering, that the witnesses' testimonies are supported by witness viktor
Dos Santos alias Apin, who testified that at that time he was at Manuel
Viegas Carrascalao's place because he was a friend of Manelito, Manuel
Viegas Carrascalao's son, and he happened to visit the house. Since the
witness was a native of Dili and knew and was a friend of Manelito, Manuel
Viegas Carrascalao's son, then, the witness presence at Manuel Viegas
Carrascalao's house was reliable;
Considering, that since the witnesses' testimonies are related to each
others and their presence at Manuel Viegas Carrascalao's place are
reasonable, then, their testimonies have a weight to verify a fact of Law
that convinces the Panel of Judges, that on April 17, 1999 many civilians
gathered consisting of friends of Manuel Viegas Carrascalao's son, or
refugees who had fled from their homes because they got suppressions,
terrors, intimidations from the militias which they thought were Pro
Integration group;
Considering, that the militia group which according to the witnesses was a
Pro Integration group on April 17, 1999 at noon had attacked Manuel Viegas
Carascalao's house, as testified by witness 1 Alfredo Sanches;
Considering, that according to witness Alfredo Sanches, on April 17, 1999 he
heard from the radio news, that a ceremony was held at the Dili Governor
courtyard, and in the afternoon an attack on Manuel Viegas Carrascalao's
house happened, the Militia and TNI attacked Manuel Viegas Carrascalao's
house by means of, first a car loaded with the Militia and TNI bumped into
the front door, then shot the house, because they were afraid the witness
and Florendo De Jesus ran and climbed onto fence; then an Army member named
Antonio Besikau shot Eduardo to death and Fransisco shot the witness, and
the witness fell down because he was shot, after the witness fell down, the
witness was stabbed by Fransisco and got injured on his back, stabbed wound
on his body, there were scars on the witness' back, leg, hand and chest
showed to the Panel of Judges before the court;
The witness 1 Alfredo Sanches's testimony which explained the incident of
attack at Manuel Viegas Carrascalao's house and that he recognized some of
the perpetrators, since they were the TNI and BMP Militia members who came
from the same region with him, from Maubara, is reliable because he has been
a victim and he has experienced and seen the incident himself;
Considering, that the Judges' conviction on the witness' testimony is
supported by the witnesses' testimonies named: Florendo De Jesus, Victor Dos
Santos alias Apin and, who also has seen and experienced the incident of
attack since they have been the victims of the attack;
Considering, that Victor Dos Santos alias Apin testified that after the
militia attacked the refugees with machetes, samurai, homemade weapons, he
who was inside the house, was shot on his knee, was cut on his left hand,
and right hand and ear, and saw when they shot Manelito. The witness also
recognized some of the perpetrators who committed the attack on Manuel
Viegas Carascalao's house, among others were Ameo, Agus, Idis, Jose Renatau,
Apiu, Lusiano, Andreas, they were, according to the witness, members of
Aitarak Militia group from Dili, the witness' recognition of the Aitarak
members is reliable since the witness is a Dili native, it is logical if he
recognizes them;
Considering, also witness Florendo De Jesus, at that time, he was with
witness Alfredo Sanches and Eduardo De Jesus on the fence behind Manuel
Viegas Carascalao's house, he witnessed when Antonio Besikau, a TNI member,
shot Eduardo De Jesus, saw a militia member named Dominggus Bondia abused
his relative named Dos Santos until he died, witness Florendo Jesus himself
was slashed by machetes by a militia member named Dominggus Bondia resulted
in injuries on his body;
Considering, that witness Florendo De Jesus also recognized people who
committed the attack at Manuel Viegas Carascalao's house who were Maubara
natives named: Dominggus Bondio, Joan Doumesa, Grasiano, Domunggus Metan,
Alfonso Batleri, Manuel Sousa, Menruco Metan, Camilo, Sisca Curbuti, Mandua
Curbuti, Fernando Sousa, Denis Lacoban, Victor Orlando, Manuel Orlando,
Felix Dselicao, Mingguan Buti, Simon Santana, Matius Edcal, while the TNI
whom the witness recognized were Jose Matius, Antonio Besikau, Duarte,
Carlos Amaral, Batisar, Theofilo;
Considering, that the recognition of the witness on the attackers is
reliable, because they come from the same region with the witness, and the
witness is a living witness who has experienced the incident himself;
Considering, that witness Alfredo Sanches as well as witnesses Victor Dos
Santos and Florendo de Jesus testified that the numbers of the dead victims
are 11 people, and they have survived because they pretended to die, when
the apparatuses came, the attackers left and they were brought to Wira
Husada hospital by an ambulance, but before the ambulance arrived at the
hospital, the ambulance made a stop at Tropical, the Aitarak Headquarters;
Considering, that in his Pledoi, the Defendant admitted that there was an
ambulance bringing victims made a stop at the Aitarak Headquarters, Dili,
the ambulance was surrounded and was hit repeatedly by several young men,
therefore the witness' testimony was related to the Defendant's statement;
Considering, also witness Santiago Dos Santos, who came from Maubara, at the
time of the attack on Manuel Viegas Carascalao's house on April 17, 1999 was
inside the house, tried to escape when the house was going to be attacked,
he testified that that some of the refugees had run away, but the witness
was not able to escape, because the house had already been surrounded by the
attackers;
As a Maubara native, the witness recognizes the attackers who come from
Maubara, namely, two Kamra members named Matheos do Santos, Inasio, and the
BMP Militia members who come from Maubara the witness recognizes are
Fransisco, Alfonso, Honorio, Manuel Goncalves, Nicolau, Abrao, Joselino,
Augusto, while the TNI members are Jose Matheus and Theofilo da Silva, and
witnessed the witness' friend named Raul shot to death by the attacker named
Augusto, a BMP member, at that time the witness heard a gunshot and homemade
firearms on the glasses and door, the attack resulted in 11 people were
dead, on the next day the witness was taken to the morgue room, and the
witness identified the 11 dead bodies named, 1. Manuel Gama Carascalao, 2.
raul Dos Santos, 3. Alberto do Santos, 4. Januario Riberto, 5. Alfonso
Riberro, 6. Crsissantos Do Santos, 7. Rafael Da Silva, 8. Cesar Dos Santos,
9. Eduardo De Jesus, 10. Antonio Des Soares, 11. Agustino BX Lay, the 11
bodies have been buried in Maubara, while one person has been buried in
Dili, named Manelito Carascalao;
Considering, that the fact that 11 victims have been dead and buried in
Maubara is supported by the testimonies of witness 2 Julio Sousa and witness
3 Dominggus Boavida, who have witnessed the funeral of the corpses, besides
that witness Dominggus Boavida has been one of the witnesses who mounted
onto the truck and counted 11 coffins with corpses inside who had been
killed at the incident of the attack on Manuel Viegas Carascalao's house who
were Maubara natives and buried in Lebukoe (sic!) Maubara in the afternoon
on April 19, 1999. Therefore, the witnesses' testimonies are also reliable;
Considering, from reliable witnesses' testimonies, because they are related
to each other, and the Panel of Judges has obtained convincing fact of law,
that the Militias who attacked Manuel Viegas Carascalao's house on April 17,
1999 was Pro Integration Militia group from Aitarak group Dili and Besi
Merah Putih group and several TNI officers who came from Maubara, whose
their names mentioned by the witnesses above, and they have collectively
surrounded and attacked Manuel Viegas Carascalao's house which at that time
was occupied by Refugees, the incident resulted in 11 civilians dead
including Manuel Viegas Carrascalao's son named Manelito, while the others
injured as happened on witnesses Alfredo Sanches, Victor Dos Santos,
Florendo de Jesus, even as said by the Defendant that he had a chance to
bring a wounded person, namely, Manuel Viegas Carrascalao's aunt to Wira
Husada hospital, therefore the facts that people died and injured as a
result of the attack committed by militia groups from Aitarak and BMP groups
on Manuel Viegas Carrascalao's house on April 17, 1999 has been proven
because the facts are undeniable, not because it has been rejected by the
Defendant and The Defendant's lawyer Team on the witnesses' testimonies, so
that Unus Testis Nulus Testis in this case has not been proven because
witness Alfredo Sanches's testimony has been supported by some of the
witnesses' testimonies which are related to each other and by the
Defendant's statement himself;
Considering, that witnesses Alfredo sanches, Florendo De Jesus, Santiago Do
Santos, Victor Dos Santos, Manuel Viegas Carrascalao and Maria Christiana
Carrascalao only heard from the radio that the Big Rally was held at Dili
Governor on April 17, 1999, but the fact of the Big Rally which was held at
Dili Governor on April 17, 1999 has been verified by the Defendant and has
been supported by the testimonies of witness 5 Basilio Dias Araujo, witness
6 Jose Afat, witness 8 Abilio Jose Osario Soares, witness 9 Joao Da Silva
Tavares, witness 11 Dominggus M. Dores, those who attended the ceremony,
including witness Ad de Charge Marcelino Martin Ximenes who was also present
there;
Considering, that according to the Defendant and the witnesses, the
participants of the Big Rally were Pro Integration groups from all over East
Timor, Aitarak Group from Dili, BMP (Besi Merah Putih) from Liquisa Maubara,
Halilintar from Maliana, Alpha from Los Palos, and other Pro Integration
Groups such as Saka Sera, Ablai, Mahidi, Maha Domi, Mahidi, Laksaur numbered
thousands of them;
According to Marcelino Ximenes, the regions of the groups were recognized
from their regional symbols;
Considering, that according to the Defendant, the leader of the Aitarak
Troops in the ceremony was the Defendant, he was the one who instructed his
members to carry weapons such as sticks, but admitted that there might be
any possibilities if some of Aitarak members carried weapons such as
machetes, homemade firearms, since such weapons were also carried by other
groups, such as homemade weapons carried by BMP group from Liquisa, as well
as the TNI personnel who wore civilian clothes, carried weapons among the
participants.
Considering, that the ceremony participants carried weapons has been
verified by witness Abilio Osario Soares, the former East Timor Governor,
who saw lots of members of the PPI group carrying weapons such as machetes,
homemade weapons and firearms during the Big Rally at Dili Governor
Courtyard on April 17, 1999, he had cancelled his speech because the
ceremony was not a Pam Swakarsa Rally, but was a PPI Rally.
Considering, that according to the Defendant and witnesses 5 Basilio Dias
Araujo, Abilio Jose Soares, PPI was a military wing organization of BRRT and
FPDK. BRRT and FPDK were groups of East Timorese who had struggled over
political aspirations for East Timor to remain integrated with Indonesia,
whereas the PPI as the military wing was acknowledged by International
bodies like the UN.
PPI was led by a Commander named Joao Da Silva Tavares, and the Deputy
Commander was the Defendant Eurico Gutteres, but according to witness
Basilio Dias Araujo who was often became a translator in meetings with
foreigners and the UN, the person who often represented PPI was the
Defendant EURICO GUTERRES. PPI had group members from all over East Timor
territory like Aitarak, BMP, Hallilintar, Alpha, Mahidi, Saka Sera, Ablai,
Maha Domi, Laksaur, the groups which were attending the ceremony at east
Timor Governor courtyard on April 17, 1999, so it makes sense if Abilio
Soares said that the ceremony was a PPI ceremony.
Considering, that according to the Defendant as well as the witnesses Joao
Tavares, Abilio Soares, Basilio Dias Araujo, Dominggus M. Dores Soares, PPI
was a new name of a Partisan group, a group of armed civilians who fought
against Fretilin before East Timor was integrated with Indonesia.
In order to maintain security in East Timor territory and to face the 1999
popular consultation/ ballot, the PPI was established.
Considering, that the PPI supervised Pro Integration groups such as Aitarak,
BMP, Hallilintar, Alpha, Mahidi, Saka Sera, Ablai, Maha Domi, Laksaur, and
thousands others (sic!), some of them had become Pam Swakarsa members as
described by the Defendat who said that the Defendant had proposed 150
Aitarak members to become Pam Swakarsa members and were paid Rp. 150.000,-
per month including 10 kg rice provided by the Local Government, so that, as
admitted by Joao Da Silva Tavares, many of Halilintar members became Pam
Swakarsa members, and so the other Pro Integration Group members.
Considering, that according to witnesses Abilio Soares and Dominggus M.
Dores Soares, it was true that Pam Swakarsa was created to deal with
security problem, disorder in the community, particularly from Anti
Integration groups, such as Fretilin, Falintil who destabilized the
Government, they were paid Rp. 150.000,- per month, provided by each of
their APBD (Local Government Budget) after approved by the Governor;
Considering, that since the PPI supervised Pro Integration groups such as
Aitarak, BMP, and others, and some members of Aitarak and BMP were also
members of Pam Swakarsa, then, it is reasonable if the Rally on April 17,
1999 at Dili Governor courtyard was also a Pam Swakarsa Rally, because the
members of Pam Swakarsa were also members of Aitarak and BMP Group, and
members from many regions in East Timor also attended the ceremony;
Considering, since originally the PPI derived from a Partisan group of armed
civilian group, while the members of Aitarak and BMP were also armed
civilians, even though those were homemade weapons and machetes and others,
and who were also members of the PPI, and in the ceremony there was a
military-style troop inspection, it is reasonable if Aitarak and BMP groups
have been acknowledged by witnesses Alfredo Sanches, Victor Do Santos,
Florendo De Jesus, Dominggus Boavida, Julio Sousa and Manuel Viegas
Carrascalao as well as Maria Christiana Carascalao as Pro Integration
militia group which had attacked Manuel Viegas Carrascalao's house after the
Big Rally at Dili Governor courtyard on April 17, 1999 was over;
Considering, that witnesses Abilio Soares, Dominggus M.D. Soares, witness
Jose Apat MFA, and witness Joao Da Silva Tavares, admitted that after the
Big Rally at Dili Governor courtyard on April 17, 1999 was over, a clash
between the ceremony participants and the people at Manuel Viegas
Carrascalao's house took place, according to the information from the
location, the incident started when the ceremony participants from Liquisa
Maubara were going to return to Liquisa, when they were passing by Manuel
Viegas Carrascalao's house, cries for help were heard from inside the house,
so that the ceremony participants who thought that their families were
there, tried to help and a clash at the house took place which resulted in
dead and wounded victims;
Considering, that the Panel of Judges have doubts on the reason of the clash
at Carrascalao's house, as testified by the witnesses and was verified by
the Defendant, because:
- The information obtained by the witnesses is not told by those victimized
or witnessed the incident, so it is an information told by other person
(saksi de auditu);
- Witness Abilio got the information from Kadit Sospol Witness Dominggus M.
Dores from the Chairman of the Committee, while witnesses Jose Apat and Joao
Tavares heard from the ceremony participants in Dili, but not from the
people who committed the attack.
- Witness Juanico Dasilva testified the same version of information or
almost similar to the stories of witnesses Abilio, Dominggus, Jose Apat and
Tavares, but the witness had not been taken oath before giving the
testimony.
- According to the Ad De Charge witness Marcelino Martin Ximenes, the people
who wanted to go back to Liquisa or Maubara did not pass by Manuel Viegas
Carrascalao's house, because if they wanted to go back to Liquisa from the
Governor courtyard, should take the east direction, while Manuel Viegas
Carrascalao's house was on the west of the Governor office;
Considering, that it therefore is difficult for the Panel of Judges to
accept the witnesses' and the Defendant's testimonies, regarding the cause
of the clash at Manuel Viegas Carrascalao's house as described earlier,
because their testimonies are doubtful, so that it is reasonable for the
Panel of Judges to ignore the witnesses' testimonies, and paid more
attention on the victim witnesses who witnessed and experienced the incident
at Manuel Viegas Carrascalao's house, they are witnesses Alfredo Sanches and
his refugee friends.
Therefore the Panel of Judges obtained a convincing fact of law that the
people who committed the attack on the refugees at Manuel Viegas
Carrascalao's house on April 17, 1999, among others were the participants of
the ceremony at Dili Governor courtyard from Aitarak group from Dili and
Besi Merah Putih group from Maubara Liquisa, whom perpetrators have been
recognized by the victim witnesses;
Considering, that the 136 victim witnesses and the refugees at Carrascalao'
house were civilians who have rights to live, rights of security, safety of
soul and body, rights to get law protection and other rights as human beings
created by God, so that it is appropriate to call them dignified human being
because they have Human Rights who are secured and protected by the Law;
Considering, that since there was the attack on refugees committed by
Aitarak group and BMP group, the groups under PPI organization, its members
have committed a violation against the law on civil rights, who are the
refugees;
Considering, that there have been dead and wounded victims among the
refugees at Manuel Viegas Carrascalao's house is a sufficient evidence of
crimes committed by Aitarak members and BMP group;
Considering, that the crimes and violations committed by members of Aitarak
and BMP groups who were part of the ceremony participants at Dili Governor
courtyard on April 17, 1999, the incident happened after taking part in the
ceremony program such as hearing to the speech delivered by the Defendant;
Considering, that the Defendant verified witness 5 Basilio Dias Araujo who
said in the court that there were responses from the ceremony participants
after and/or during the Defendant giving speech, moreover, the Defendant
said that there was a response in the form of shootings of homemade weapons
from various corners of the Rally participants;
Considering, that the witness' testimony according to the Criminal Code is
an evidence, as well as the Defendant's statement, and since the testimony
of witness 5 Basilio Dias Arujo has been verified by the Defendant, a
minimum evidence verification required by the Law to verify the fact has
been fulfilled, so it can be considered to have proven that the Defendant's
speech got a response from the Ceremony participants in the form of yells or
shouts "kill, kill, kill";
Considering, that the Defendant's speech has therefore been proven for
resulting in or evoking emotion of the thousands masses who were the Rally
participants to commit murder, and the most logical reason of the masses'
emotion for killing was resentment or revenge;
Considering, that the PPI members and/or PPI organizaation had resentment or
revenge can be simply understood, since it is a new face or a new name of
the partisan group, which in the past was a group of armed civilians
fighting against Fretilin, and was wound up through the integration of East
Timor in the Indonesian territory, if PPI was reactivated before and shortly
before the popular consultation/ballot implementation, which subject of the
election in the popular consultation/ballot were the citizen or civilians,
then, as a military wing, the target of its revenge was the citizen or
civilians, who were certainly those anti Integration civilians, such as
witnesses Alfredo Sanches, Alfredo De Jesus, Santiago Do Santos, who ran and
chased after by the Militia because they did not want to join and become Pro
Integration Militia and later took shelter at Manuel Viegas Carascalao's
house;
Considering, that there has been a correlation between the Defendant's
speech delivered at the Rally at Governor courtyard on April 17, 1999 and
the incident of attack on the refugees at Manuel Viegas Carascalao's house
on April 17, 1999, in the way of transferring a final and deadly blow
towards the ceremony participants to kill anti Integration civilians, in the
form of evoking the emotion of the masses to commit murder, as part of the
revenge by allowing the armed Aitarak and BMP groups killed Anti Integration
refugees and injured them who were at Manuel Viegas Carrascalao's house;
Considering, that as testified by the witnesses and admitted by the
Defendant that he was Aitarak troops Commandant and had members in all over
the villages in Dili, he was a PPI Deputy Commander, who was a leader who
supervised Pro Integration groups in all East Timor territory;
Considering, that the Defendant admitted that during his elementary and
secondary school, he had always been a leader in his class, and he became an
OSIS (Student Organization) Chairman in high school or had been a Student
Senate Chairman in the university, if the statement is true, the Defendant
has an awareness of his position and realizes the importance of being a
leader, ruled and led and conducted his rights and duties, and has a
responsibility on the organization he leads, so that he realizes and know
the meaning of responsibility as a leader of Aitarak troops and a Deputy
Commander of PPI;
Considering, that the Defendant knew very well situation in Dili and general
condition in East Timor, as described by the Defendant how he blocked roads,
and guarded by crowds of Aitarak group to prevent any clash, the Defendant's
instruction was obeyed by his subordinates, the other meaning of the
Defendant's instruction on that matter, according to the Panel of Judges,
was that in order to control his territory, the Defendant assigned Heads of
Villages to be Heads of Aitaraks in their villages to facilitate the
Defendant's order, instruction to his subordinates and to obtain reports, so
that the Defendant knew the communication network very well to assist him in
obtaining information, information was very important for a leader to make a
decision on a problem, so that the Defendant easily knew any single incident
in a region as reported by his subordinates, and admitted that he could
effectively control his members except one person, the Head of Ainaro
Village, who had been warned by the Defendant for carrying M.16 weapon
belonged to ABRI (Indonesian Army), this fact is an evidence that besides he
is able to give order, rule, and his order is obeyed by his members and he
is able to take measure such warning the head of Aonaro (sic!);
Considering, that as a Deputy Commander of PPI, the Defendant had issued a
statement to prohibit all political elites to leave Dili during and after
the popular consultation/ballot. The Defendant's statement was considered as
an instruction, so that all people who wanted to leave Dili should obtain a
Pass or a letter signed by the Defendant as the PPI Deputy Commander, as
admitted by the Defendant that he signed thousands of letters everyday to
help people leave Dili, this statement has been supported by the statement
of Dili Governor Abilio Soares who said that the Governor family managed to
go out of Dili after asking a letter signed by the Defendant, this fact
became one of the evidences that the Defendant's influence and authority
have surpassed regional borders;
Considering, that therefore the Defendant as Deputy Commander of PPI, a
military wing of FPDK and BRRT and/or is acknowledged as the leader of Pro
Integration Military wing group during and shortly before the process of
popular consultation/ballot, often represented PPI in meetings with anti
integration military wing, especially on the request of the international
bodies or the UN, as testified by witness Basilio Dias Araujo whose
testimony has been verified by the Defendant;
Considering, that the Defendant's influences had been seen at the Rally on
April 17, 1999, as testified by witness Joao Da Silva Tavares whom the
Defendant had asked to be the Supervisor of the Ceremony (Inspektur
Upacara/Irup) and to deliver a speech, the Defendant's request had been
conveyed several days before the ceremony, the witness' testimony has been
verified by the Defendant, so that the one who acted as the Irup in the
ceremony was the PPI Commander, Joao Da Silva Tavares, there was troop
inspection performed by the PPI Commander accompanied by the Deputy
Commander, the Defendant, riding on a vehicle, which was identical to a
military ceremony, therefore it is not wrong if the event has been called a
PPI Rally and a Pam Swakarsa Inauguration Rally as had been planned before,
the Field Commander was Jose Ximenes, a member of Aitarak group, this fact
shows how big the Defendant's influence in organizing the event and not
merely the Committee Chairman from the East Timor Local Government of Dili;
Considering, that witness B. Pangaribuan as a personnel of the Indonesian
Police, who was Kasat Serse Polres Dili admitted the Defendant's big
influence towards his subordinates, as well as among Pro Integration groups,
the witness often asked for help from the Defendant to settle a case related
to his tasks; and as testified by witness Marcelino, the Defendant was a
Youth Figure who had big influence towards his subordinates as well as among
the community, the Defendant's instruction and order were obeyed by his
subordinates as a supervisor or as an Aitarak Commandant, this witness'
testimony has also been verified by the Defendant;
Considering, that since the Defendant had a big influence among Pro
Integration group, then, it is not surprising if his speech evoked emotion
of thousand masses of the ceremony participants who most of them were armed,
and the consequence has certainly been realized and understood by the
Defendant because the Defendant knew exactly the situation and condition in
Dili and East Timor in general before and shortly before the popular
consultation/ballot, the clashes that often happened, and PPI had to face it
to undoubtedly win the popular consultation/ballot for the Pro Integration
group;
Considering, that since the Defendant was a person who had a big influence
in his position as a Deputy Commander of PPI and Aitarak Commandant on his
subordinates who were group or members of Pro Integration group during and
before and shortly before the popular consultation/ballot in East Timor, had
delivered a speech before thousands of masses who most of them were armed,
at a Rally in East Timor Governer courtyard on April 17, 1999, which had
evoked emotion of the masses to kill which was a retaliation against anti
Integration civilians, but the Defendant as a superordinate or as a leader
of Pro Integration group who was aware of the emotion of the masses to kill,
or at least received direct information from the shouts and yells, kill,
kill among the rally participants after hearing his speech, so that he had
been trapped and deliberately put himself into the situation, since he
thought that the circumstance was common to take place in the gathering of
masses, although he knew that the situation of the community at that time
was prone to conflicts;
Considering, that as a consequence a part of the Pro Integration group from
Aitarak group who were the subordinates of the Defendant's troops and
members of the BMP group whose the groups's Inauguration was also attended
by the Defendant, or in other words that members of the Pro Integration
group who were directly trained by the Defendant, the Aitarak and BMP,
because they had been influenced by the Defendant's speech, had deliberately
committed an attack on civilians at Manuel Viegas Carrascalao' house, after
the Rally was over, resulted in 11 civilians dead, and three persons
wounded. Therefore the fact has proven the crime committed by the
Defendant's subordinates who were the Aitarak group or PPI group members,
who were the BMP group trained by the Defendant, and the Defendant did not
try to prevent or has failed to prevent the action committed by his
subordinates and his trainees, so that resulted in the dead and the injured,
so that the Defendant should take responsibility for the deeds committed by
his subordinates;
Considering, that the Defendant's Lawyer Team has submitted a Pledoi, whose
main points are as follow:
Pledoi of the Defendant's Lawyer Team:
1. Declare that the Defendant EURICO GUTERRES has been legally and
convincingly not proven guilty for committing a Criminal Violation against
Human Rights, as stated in the Indictment Letter of the Ad Hoc Prosecuting
Attorney;
2. Free the Defendant EURICO GUTERRES from the first indictment and the
second indictment;
3. Restore the Defendant EURICO GUTERRES's Rights from (sic!) his
capabilities, statuses and dignity;
4. Order to return all evidences to those rightful owners, except the ones
which should be included in the dossier;
5. Order the State to pay all court expenses;
Based on these arguments:
1. The Human Rights Ad Hoc Court at the Central Jakarta District Court has
been problematic, since the Presidential Decision (Keppres) No.53/2001
issued in contradiction to the proposal of the House of Representative (DPR)
which has become the basis of the Presidential Decision;
2. The crime at Manuel Viegas Carascalao's residence cannot be classified as
a Grave Human Rights Violation (extra ordinary, sic!), because:
- The background of the Rally on April 17, 1999 has been a vow of commitment
to the Red and White performed by the Pro Integration Fighters;
- The incident on April 17, 1999 at Manuel Viegas Carrascalao's house was a
spontaneous action committed by families of the Maubara Liquisa people who
had been gathered by Manuel Viegas Carascalao on February 28, 1999, on
Sunday at 14.00 Indonesian Central Time to be used as a Manuel Viegas
Carrascalao's political commodity;
The action committed by the Pro Integration group in East Timor can be
called as the act of retaliation, a revenge triggered by a provocative
action started by the Pro Independence group and that such retaliation
action has not been considered as a violation against the Law;
3. Regarding the difference among the dossier, the letter of official
turning over of dossier and the indictment letter:
- The names of the Defendant are different, in the letter of official
turning over of dossier it has been written as Eurico Guterres, while in the
dossier, it has been written as Eurico Gutteres;
- The Defendant's dates of birth are different;
4. Regarding the Judicial Analysis:
- That the element of a civil superordinate is capable to take
responsibility, the Defendant cannot be qualified as a civil superordinate
who is capable to take responsibility, because the organizer of the Big
rally on April 17, 1999 was the Regent of Dili, while the Commander of the
PPI was Joao Da Silva Tavares, moreover, the content of the speeches of the
PPI Commander and the Deputy Commander was a summon to make a commitment to
the Red and White and an emphasis to win the popular consultation/ballot for
the Pro Integration group;
- That the element of having subordinates, which has an authority to conduct
an effective control, has not conducted an effective control upon his
subordinates properly and correctly has not been proven because factions of
the Big Rally participants consisted of various groups from various regions
who had their own commandants and were responsible for their own
subordinates, moreover, as testified by several witnesses that the attackers
of Manuel Viegas Carascalao's house were Besi Merah Putih group from Liquisa
Regency, therefore the Defendant as an Aitarak Commandant cannot be
responsible for the attack;
- That the elements of knowing or deliberately ignoring the information has
not been proven because not even any single witness who witnessed or
directly heard the Defendant's speech which contained a provocation to kill
Manuel Viegas Carascalao, but only one witness named Drs. Basilio Dias
Araujo who heard, kill, kill shoutings from the masses of participants of
the Big Rally, moreover, the Defendant knew the incident from the
Defendant's wife, and had even a chance to plead to the BMP not to commit
the attack, but he was suspected as a double-role agent;
- That the elements of having not conducted necessary and proper actions
within his authority, prevented, and stopped the action or handed over the
perpetrators to the responsible officials for investigation and prosecution
cannot be proven simply by testimonies from witnesses who had not been
presented before the court and whose testimonies had only been read and had
been rejected by the Lawyer Team, moreover, the incident of the attack on
Manuel Viegas Carascalao's house had been handled by the Police and the 20
Perpetrators had been arrested;
- That the element of subordinates committing or has just committed Grave
Human Rights violation has no connection to the indictment, because the
Aitarak faction had not been involved in the attack;
- That the element of Crimes against Humanity in the form of a spread and
systematic attack acknowledged as an attack on civilians in the forms of
murder, because the Defendant had not planned the Big Rally which were
attended by thousands of masses, moreover, PPI was a community group which
was powerless and suppressed;
The Defendant's Pledoi:
- The Defendant's Pledoi is titled: "Salahkah saya Membela Merah Putih" (Am
I Wrong to Defend the Red and White);
- To the Defendant, the Integration means the Red White and the Red White is
a Symbol of Freedom from Structural Poverty and a symbol of East Timorese
human dignity;
- Because the Integration is the best way for East Timorese, had guided the
Defendant to take part actively in the Barisan Pejuang Pro Integration
(PPI)/ Pro Integration Force;
- Because the development of situation and security in East Timor at the
beginning of 1999, had forced to reestablish the Barisan Partisan which was
previously an armed group of civilians (the unification of UDT, KOTA,
TARBALISTA, APODITI) who fought against the Fretilin group, based on the 3
(three) main ideas:
1. As a political umbrella for self protection and self defence;
2. As a media for mass mobilization to defend and to maintain the
Integration;
3. As an organization to control the resurrection of fighting spirit which
had arised everywhere;
- That Joao Dasilva Tavares who was previously the Deputy Commander of
Barisan Partisan, had initiated the umbrella PPI to carry on the struggle
for Integration through mass mobilization, particularly to face the popular
consultation/ballot;
- The Defendant was the Aitarak Commandant and Deputy Commander of PPI;
- That the Defendant as the Aitarak Commander and Deputy Commander of PPI
has rejected that he had not controlled or conducted any action to prevent
his subordinates so that his subordinates had committed Human Rights
violation, and had not brought the perpetrators to the responsible officer
for prosecution and had allowed and provoked the PPI members under his
effective control, so that committed the attack on Manuel viegas
Carascalao's residence, because:
1. As an Aitarak Commandant, the Defendant had asked his entire followers
and symphatizers not to get involved in violating actions committed by
individual, or masses before the April 17, 1999 incident;
2. The Headquarters of Aitarak and Manuel Viegas Carascalao's house was
separated only by wall, and the Defendant had been living side by side with
Manuel Viegas Carascalao and had a good relationship as a Manuel Viegas
Carascalao's neighbor until the incident of attack on Manuel Viegas
Carascalao's house happened;
3. The Defendant position as the Deputy Commander of PPI was only symbolic,
so that it was difficult to give orders or control people, because the
people joining the PPI were the followers or symphatizers to demonstrate
their existence and commitment to the Integration.
Besides that:
- PPI was an organization without structure, hierarchy, therefore had no
chain of command, therefore no function of effective control;
- The PPI was still premature at that time;
- The only fact that exagerated the PPI existence as people had mentioned
nationally and internationally, was the effect of tremendous and tendentious
exposes by international and national mass media;
- That the murder, kidnapping, terror, intimidation, suppression committed
by Fretilin and Falintil on civilians, which forced the Pro Integration
civilians including the followers and symphatizers to conceal their
existences for security reason, had been a pushing factor to establish the
PPI to consolidate into one line, one word, and one door to face violence
that had occurred everywhere within East Timor territory, as an excess of
the second OPSI initiated by President B.J. Habibie;
- That the incident at Manuel Viegas Carascalao's house has been caused
among others by:
- Carascalao was a Landlord of coffee plantation in East Timor who had
robbed people's lands to make coffee plantations, supported by the colonial
government and made people suffered;
- Carrascalao clan had been a Landlord since the colonial era and continued
during the civil war, as an UDT Commander owned weapons, led a coup to take
over Fretilin authority, so that the coup led by Carascalao started the
civil war and was an architect of the humankind disaster in East Timor until
now;
- When defeated by the Fretilin, Carascalao who had initiated to establish
Barisan Partisan, as the beginning of the Integration had all
parties/members of non Fretilin parties, the Carascalao brothers became the
iron hand of ABRI under Gen. Murdani authority, fought over civil rights in
the Integration, so that the Carascalao brothers did not recognize political
morality, had caused many integration fighters hated ABRI and were
frustrated;
- Manuel Viegas Carascalao's house had been used as CNRT Headquarters and a
shelter to accommodate communities who were picked up from the regions;
Due to the reasons the Defendant and the Aitarak cannot be considered as a
party who should take responsibility of the attack on Carascalao's house,
since no one exactly knew who the Carascalao's enemies were, no one knew
about who planned the attack on Manuel Viegas Carascalao's house;
- That the Defendant had rejected the charge of the Prosecuting Attorney
which claims that the Defendant has legally and convincingly been proven for
committing criminal deeds as charged in the indictment letter, and that the
Defendant should be sentenced with 10 years in prison, which means that the
Defendant should be punished for the action committed by other people whom
the Defendant does not know, which based on public opinion is positioned as
a leader of an organization without any clear structure and chain of
command;
- That the Defendant had explicitly rejected the incident of attack on
Manuel Viegas Carascalao's house had any connection to the Rally in front of
the Governor office on April 17, 1999, because the Defendant had never
delivered a speech which threatened particular people and mentioned
Carascalao's name, resulted in provoking the masses which then attacked
Manuel Viegas Carascalao's house;
- That the Defendant had rejected most of the facts mentioned as bases for
the Prosecuting Attorney to write his indictment, since it is obvious the
facts are not relevant to evidences of the witnesses' testimonies given
under oath because obviously not relevant to the evidences, the witnesses'
testimonies given under oath before the court, the Defendant's statement,
evidences of letters and material evidences as the fact of law uncovered in
the court, even in his deliberation the Ad Hoc Prosecuting Attorney has made
a wrong and exaggerated interpretation;
- That besides that, in his Pledoi, the Defendant has discussed judicially
in the form of judicial analysis on elements of the Articles charged on him,
especially Article 42 paragraph (1) a and b, and Elements of Article 42
paragraph 2 Law No 26/2000 on the Human Rights Court consisting of the
Matter of the Command Responsibility:
- A matter of a person who effectively acted as a civil superordinate;
- A matter of a subordinate who according to the Law commits a crime;
- A matter of knowing or based on a certain situation should have known that
troops under his effective control are committing or have just committed a
crime against humanity in the form of murder;
- That the matter on command responsibility cannot be met linked to the
Defendant as an Aitarak Commandant and Deputy Commander of PPI, because the
existence of PPI and Aitarak were not the Government's extension nor the
state's apparatuses like the Police or TNI or KNPI or AMPI, and during the
incident, the situation in Dili city was under the status of civil order, in
which the responsibility of Kamtibnas (national security and order) and
upholding law belong to absolute control of apparatuses possessing rights
under the Indonesian Law;
- That the matter on a person who effectively acted as a civil superordinate
cannot be met, since the assignment of the Defendant as an Aitarak
Commandant and as Deputy Commander of PPI had not been based on an
assignment or decision based on the Law or Authentic Certificate justified
by Law, so that the rank was only a name and label, therefore is unqualified
as a civil superordinate;
- That the matter on a subordinate who, according to the Law, committed a
crime, cannot be met, since the Aitarak or PPI as a political umbrella had
never recruited its members, therefore followers and symphatizers from the
community cannot be categorized as subordinates;
- That the Defendant did not witness the clash at Manuel Viegas Carascalao's
house, did not know whether the perpetrators were Liquisa or BMP natives,
therefore the Defendant cannot be qualified as a person who knows or has a
reason to know, so that a matter on someone who knows or based on a certain
situation should have known that the troops under his effective control are
committing a violation against humanity cannot be met;
Considering, that based on the complete Pledoi, as described in the Pledoi
titled salahkah saya membela merah putih (am I wrong to defend the red and
white), the Defendant has rejected the indictment as well as the charge of
the Ad Hoc Prosecuting Attorney;
Considering, that towards the Pledois of the Defendant's Lawyer Team, the Ad
Hoc Prosecuting Attorney delivered a Replik as follow:
- That the Replik of the Ad Hoc Prosecuting Attorney in principle has
re-emphasized that the Prosecuting Attorney remains with his charges and
rejects the Pledoi presented by the Defendant and the Defendant's Lawyer
Team;
1. That typing mistakes (error in World Writing [sic!]) shall not be used as
a principle to cancel the indictment letter, following the Jurisprudential
in criminal lawsuits as mentioned in Arrest Hoge Raad:
- HR on April 7, 1999 N.J. 1919, No. 525, HR. April 20, 1936 N.J. 1936 No.
777, HR. February 29, 1944 N.J. 1944 No. 290, HR. December 14, 1942 N.J.
1942 No. 208, HR March 2, 1948 N.J. No. 171.
The Arrest Hoge Raad has been followed and acknowledged in practices, as has
been implemented in a criminal charge at the Central Jakarta Court against
Fredirch Yunadi, who has been ruled in the Court of Appeal.
Besides that, the fact shows that such little mistakes do not affect the
defense of the Defendant;
2. The criminal incident at Manuel Viegas Carascalao's house mentioned by
the Defendant's Lawyer Team as a provoke act retaliation (sic!) is not
correct, since the fact is an attack against civil population (sic!),
therefore it is inappropriate to use a principle of Provoked Act
retaliation:
3. That on the incoherence between the dossier and the indictment letter
cannot be used as a reason to cancel the indictment letter, since there is
no stipulation which requires the Prosecutor to take over the articles
charged by the Investigator, because according to Domisilistis Principle,
the Prosecutor has the rights to decide which articles to be charged on the
Defendant, as long as it does not bring any cost to the Defendant's
interest, however in this case, the articles relevant the Defendant's deeds
mentioned in the dossier, moreover which have actually been used as the
basis for examination before the court are the indictment letter not charges
mentioned in the dossier (Vide Supreme Court Justice's Decision
No.47k/Kr/1956 dated March 28, 1957);
Considering, that towards the Replik of the Prosecuting Attorney, the
Defendant's Lawyer Team delivered a Duplik, whose main points are as follow:
The Duplik of the Defendant's Lawyer Team:
- That the Defendant did not deliver a Duplik, but entrusted it on the
Duplik delivered by the Defendant's Lawyer Team, who has rejected all
arguments in Replik delivered by the Ad Hoc Prosecuting Attorney;
- That the Arresten Hoge Raad and the Jurisprudence delivered by the
Prosecuting Attorney to declare the error in word writing (sic!) cannot be
considered as a principle to cancel the indictment letter, in formal
judicial sense has no legal binding and forcing power, unlike the
Constitution, or Government Regulations as the Laws that the DPR and
Government have drafted;
- That the ciminal incident at Manuel Viegas Carascalao's house cannot be
categorized as an attack against civil population (sic!), according to the
Lawyer Team, the incident has purely been a provoked act retaliation
(sic!),based on evidences:
- During the transitional Government, President B.J. Habibie had
deliberately prevented the Parliament or DPR to discuss the OPSI for East
Timor independence, the evidence of it that the New Agreement or May 5, 1999
New York Agreement has been called an agreement, the aim is clear to make
the DPR RI could not claim their rights to be involved in giving or not
giving an approval;
- That the B.J. Habibie Government had practiced an act of seemingly
International Conspiracy, that resulted in Indonesian security apparatuses
only assigned to secure the popular consultation/ballot in East Timor
territory which was at that time still under Indonesian sovereignty:
- Such act of the transitional Government of President B.J. Habibie that
smelled of International Conspiracy at the same time could cause the Pro
Integration group being provoked, as these events occurred:
- The recruitment of Unamet Local Staff was not neutral;
- There was a claim to replace the Unamet with another more independent and
neutral institution;
- Unamet was suspected to be at the side of independence group;
- Unamet was not neutral in processing the recruitment of Staff Committee of
the popular consultation/ballot;
- There was a critique from PBNU on Australia who always defended the Unamet
which had obviously been never neutral;
- The ignorance of Cover Bothside jurnalistic principle, or balance of news,
resulted in Indonesia having international bad image;
- That during the referendum, these incidents have been found:
- Monitoring Team of the Rectors found 34 infringements during the popular
consultation/ballot implementation, in the form of making efforts that East
Timorese chose only one choice that was a choice of independence;
- Unamet distributed pamphlets of rejection to the choice of autonomy for
East Timor;
- The Unamet staff from Japan and Australia forced 5 voters to choose for
Pro Independence, and 23% of the voters were forced by 4 Unamet local staff
to support Pro Independence;
- The schedule of popular consultation/ballot implementation was secretly
changed from 6 o'clock to 9 o'clock;
- The counting of ballots was conducted only by the staff of International
Organization for Immigration, and observers from Indonesia were not allowed
to see closely, the counting of ballots was performed within a distance of
15 meters from the crowds and reporters;
- The photographers were not allowed to take any pictures, included using
telephoto;
- During the separation of ballot boxes, the observers were not allowed to
stand up and were seated only 3 meters behind the organizers;
- An Unamet staff from Spain named Lisa had been caught red-handed at a
ballot booth (TPS) persuading the referendum voters to choose Pro
Independence OPSI;
- An Unamet staff from Brasil was protested by Ambeno people because
influencing them not to vote for autonomy;
- At Kepala Pramuka TPS, the voting had been conducted by Unamet without the
presence of observation's witness, at Pantai Kepala 14 TPS observers were
not present, also at Negeri 3 TPS observers were not present;
- The Unamet had special treatment on or had prioritized Pro Independece
main figures;
- In Lautan Regency, the Unamet Staff had persuaded people to choose Pro
Independence OPSI, by giving a reason that the New York Agreement on May 5,
1999 has no longer valid;
- The Australian and New Zealand reporters who had interviewed the voters
had been deported on the reason of provoking the voters;
- The obvious frauds had been committed by Unamet staff;
- There was a dissapointment because the assignment of Unamet staff had been
monopolized by Pro Independence group;
- That the attitude of the transitional Government of the President B.J.
Habibie on Pro Integration group had been:
- Never giving responses when the Indonesian Government was pressured to
strongly protest the frauds committed by Unamet;
- The release of Xanana Gusmao was a strategic effort for winning the Pro
Independence group;
- There had been no statement of support for pro Integration fighters in
President Habibie's speech one day before the implementation of popular
consultation/ballot;
- The President B.J. Habibie's speech which accepted Pro Independence
victory hurt the Pro Integration group, because the President did not care
about the East Timorese who in fact bore the costs of many frauds that
happened;
- The second OPSI on the independence had invited international conspiracy
which deliberately or not had been enticed by President B.J. Habibie's
Government, and regreted the second OPSI on the independence before the
first OPSI on autonomy had not been finalized or had just been discussed;
- The Australian Prime Minister had been successful to influence B.J.
Habibie to issue the second APSI (sic!) on the Independence of East Timor by
furthering an issue on independence;
- The Big Rally event on April 1999 held at East Timor Governor courtyard
was initiated by Dili Local Government, represented by the Dili Regent,
Dominggus Soares, after the Rally was over the masses dismissed, as BMP
faction led by its Commandant, the clash with the Pro Independence group at
Manuel Viegas Carascalao's house in which resulted in 11 people dead, was
the responsibility of the Local Government, who had invited the participants
so that they were provoked by the Big Rally event organized by the Dili
Local Government;
- Pointing out the Defendant Eurico Gutteres as a Defendant in the case of
Human Rights violation in East Timor was a mistake of the East Timor KPP HAM
(Human Rights Fact Finding Commission), therefore the Defendant's Lawyer
Team will file criminal and civil lawsuits against the KPP HAM;
- The Prosecuting Attorney did not give any response to judicial analysis of
the Defendant's Lawyer Team, it is similiar to accepting the fact delivered
by the Defendant's Lawyer Team;
- The Defendant's Lawyer Team rejected the evidence materials, namely, the
letters, presented by the Prosecuting Attorney before the court, because the
letters are categorized as the State Intelligence data and are not
considered as a legal evidence as ruled by KUHAP;
- Regarding the evidences of firearms and homemade weapons presented before
the court have been rejected by the Defendant's Lawyer Team, due to a reason
that the Prosecuting Attorney cannot prove that Eurico Gutteres has used the
materials, moreover, the Defendant was not at the location when the incident
took place;
- On the unconformity between the Dossier and the indictment letter, the
Defendant's Lawyer Team insists that it still can be used as a reason to
cancel the indictment letter, since the Dossier is a fixed reference which
has systematicaly been compiled by Public Prosecutor Office as a guidance in
order for the Prosecuting Attorney not wildly (secara liar) targeting the
Defendant with Articles the Prosecutor chooses by himself, if this is
allowed, the Public Prosecutor Office can no longer control its Prosecuting
Attorney;
Considering, that regarding the Pledoi of the Defendant's Lawyer Team, the
Pledoi of the Defendant, the Duplik, Replik of each side will be deliberated
after the Panel of Judges deliberates the elements in the Prosecuting
Attorney's charges.
Considering, that the Prosecuting Attorney has charged the Defendant for
crime as ruled in Law No.26/2000 as follow:
ONE: article 7 b jis article 9 a, article 42, paragraph (2) a and b and
article 37 Law No.26/2000 On Human Rights Court
TWO: article 7 b jis article 9 a, article 42, paragraph (2) a and b and
article 40 Law No.26/2000 On Human Rights Court.
Considering, that as has been considered earlier, in deliberating on the
Grave Human Rights violation such as this case, the Panel of Judges will
also refer to the Principles of International Law, therefore before
examining the Ad Hoc Prosecuting Attorney's indictment letter, the
Significance of the International Law Principles on Grave Human Rights
violation case in East Timor shall be considered;
On the Significance of the International Law Principles on the Case of Grave
Human Rights Violation in East Timor
Considering, that genocide and crime against humanity based on Law
No.26/2000 is included in the Jurisdiction of the Ad Hoc Human Rights Court,
is categorized as Grave Human Rights violation, while the Roma Statuta
categorizes it as the most serious crimes. Since the result of this crime
has been shocking conscience of mankind, then, the international community
has declared it as an enemy of all mankind (hostis humanis generis) which
requires all countries to fight it.
Considering, that based on the principle of state's responsibility on Grave
Human Rights violation, according to the international law, the state is
responsible to bring the perpetrator of Grave Human Rights violation to the
court and sentence them, and to give compensation to the victim. The
sentence on the perpetrator is considered as a responsibility towards all
mankind (erga omnes obligation), while the compensation paid to the victims
is the responsibility of the State, mainly for the victim's benefit. As one
of the functions of criminal charge on a perpetrator of the crime, which is
a function of prevention (detterent rationale), the absence of a punishment
on a perpetrator of the crime will become a virtual licence for the
perpetrator or for other individuals to commit the same action in the
future;
Considering, that the punishment on a perpetrator of the violation against
humanity should absolutly be implemented, so through various instruments of
international law, court judgments, or through developed doctrines of
international law, the international community has included the
international crime within the universal jurisdiction in which each
perpetrator can be brought to trial anywhere and anytime regardless the
locus and tempus delicti, and regardless the perpetrator's and the victim's
citizenship. It means to show that there are no safe places in the world for
a perpetrator of this crime (no safe haven principle);
Considering, that the punishment on a perpetrator of crime against humanity,
as has been charged in this case, similar to the perpetrator of war crime
and genocide has been a common and legally binding practice of international
law for all countries, regardless whether the concerned country has ratified
or has already adopted the relevant law instruments;
Considering, that in the practice of international law which puts on trial
the perpetrator of war crime, crime against humanity and genocide, the
instruments of international law is applied such as conventions on
humanitarian and human rights, Statutes and Decisions of Ad Hoc Criminal
Court, general Principles of Law and Doctrins, all of them has been accepted
by International community;
Considering, that the situation in East Timor, before and after the popular
consultation/ballot was full of armed conflicts between parties which
structure of disputed parties has fulfilled the requirement in 1949 Geneva
Convention, therefore it can be said that the internal armed conflict has
took place in East Timor, so that the war crime stipulation ruled in the
Geneva Convention's Common article 3 can be applied, moreover, Indonesia has
ratified the Geneva Convention through Law No. 59/1958;
Considering, that the Prosecuting Attorney has charged the Defendant for
committing a crime as stated in Law No. 26/2000 as follow:
ONE: article 7 b jis article 9 a, article 42, paragraph (2) a and b and
article 37 Law No.26/2000 On Human Rights Court
TWO: article 7 b jis article 9 a, article 42, paragraph (2) a and b and
article 40 Law No.26/2000 On Human Rights Court.
Considering, that Law No.26/2000 has adopted the Roma Statuta in its
elaboration:
Considering, that the Panel of Judges has referred to the Indictment Letter
of the Ad Hoc Prosecuting Attorney;
Considering, that the Prosecuting Attorney has charged the Defendant for
committing crimes against humanity in the place and time in Dili City as an
Administrative and the Capital City of East Timor Province on April 17,
1999;
Considering, that seen from its Form, the Indictment Letter of the Ad Hoc
Prosecuting Attorney has been compiled Accumulatively, therefore, either the
First Indictment or the Second Indictment must be proven, therefore the
Panel of Judges will deliberate on both indictments;
Considering, that therefore the Panel of Judges will first deliberate on the
First Indictment;
Considering, that in the First Indictment the Defendant has been charged for
committing crime and has violated: article 7 b jis article 9 a, article 42,
paragraph (2) a and b and article 37 Law No.26/2000 On Human Rights Court,
as follow:
- Article 7 b:
"A crime against humanity as intended in article 7 b is that an action
committed as a part of widespread or systematic attack in which is known
that the attack is directed towards the Civilians".
- Article 42 paragraph (2) a and b:
"A superordinate, either the police or other civilians are criminally
responsible for a Grave Human Rights violation committed by his subordinates
under his effective authority and control, because the superordinate does
not take any proper and correct control upon his subordinates:
a. the superordinate knows or deliberately ignores the information which
obviously shows that his subordinates are committing or has just committed a
Grave Human Rights violation, and
b. the superordinate does not take any proper and necessary actions under
his authority to prevent or to quell the acts or to hand over the
perpetrator to the responsible officials for investigation, question and
prosecution"
- Article 37:
"Any person who committed the acts as stated in article 9 a, b, d, e, or j
shall be sentenced to death, or imprisoned as long as 25 years and at least
10 years".
Considering, therefore according to the Panel of Judges, the elements of the
First Indictment are as follow:
1. A civil superordinate has a capability to take a criminal responsibility
2. Has subordinates, has authority to conduct an effective control, does not
take any proper and corect control on his subordinates
3. Knows or deliberately ignores the information
4. Does not take any proper and necessary action in his authority, prevent,
quell the action, hand over to the reponsible officials for investigation,
question, and prosecution;
5. The subordinate is committing or has just committed a Grave Human Rights
violation
6. Crimes against humanity, in the form of widespread and systematic attack,
is known that the attack is directed towards civilians in the form of
killings;
Considering, that all of those elements will be elaborated by the Panel of
Judges and will be examined based on following considerations:
Ad. 1. On the Matter of A Civil Superordinate Has a Capability to Take a
Criminal Responsibility
Considering, that based on a principle of individual responsibility on a
Grave Human Rights violation, then, all individuals regardless his/her
status and occupation who has committed crimes against humanity and violated
the law and war convention should be criminally responsible so that can be
prosecuted by the court;
Considering, that the principles of individual responsibility has been
sustained by various statutas and international practices on Nuremberg and
Tokyo Courts has ignored several principles of general law:
- an official cannot be sentenced as an individual due to his/her policy;
- an official cannot be sentenced as an individual due to his/her act
performed in his/her capacity as a State's official;
- that someone cannot be prosecuted for committing crimes according to the
ruling stipulated as a crime after it has been committed;
Considering, based on a Doctrine of the above International Court Practice
which declares that no one is allowed to depend only on the national Law,
because law and justice is for the sake of the individual more than the
existency of his/her State. Therefore, it is declared as well that each
invididual shall obey international obligation more than obligation toward
his/her national law;
Considering, that from the above Statuta and court judgment also developed
law principles which declare:
- A perpetrator of a crime against humanity and of a war crime cannot argue
that he has conducted the crime for the sake of his/her country or has been
ordered by his/her Country;
- A formal occupation of the perpetrator either as a President of a Country
or as an official responsible for Government institution, cannot become a
reason to free the individual from his/her responsibility;
- An order from a superordinate cannot be taken as a reason to free a
perpetrator from any prosecution and punishment;
Considering, that practices at the International Ad Hoc Criminal Court for
Yugoslavia and Rwanda (ICTY and ICTR) and many instruments of international
law have extended the above principles by elaborating the parameters of an
Individual's responsibility, as follow:
- an individual responsibility can be asked from someone who has planned,
provoked, ordered, committed or helped or conspired in making a plan,
preparation or executing a war crime and crime against humanity;
- a formal occupation (official position) of someone as a President of a
Country, or as a Government Official who takes responsibility, does not
acquit his/her from his/her responsibility for a crime or does not remedy
his/her sentence;
- a crime against humanity committed by his/her subordinates does not
release the leader or the superordinate from criminal responsibility, if
he/she knows or with his/her logical thinking he/she has known that his/her
subordinates is going to commit a crime and the superordinate or the leader
has failed to take any necessary and rational action to prevent or has
failed to punish the perpetrator; and
- a reason of superodinate's order will not release from a criminal
responsibility, but can be deliberated as a remedying fact;
Considering, that the doctrine of a superordinate's responsibility which
later stipulated in article 42 paragraph (2) a, according to the
international law is a part of individual crime responsibility, has been
developed by the international community to prosecute the perpetrator of
crimes against humanity after the World War II, which later has been
cristalized in the Roma Statuta, which meant as a means to ask for the
responsibility of a military or non military supervisor for crime committed
by his/her subordinates or staff since they have failed to prevent or
control their subordinates;
Considering, that the limitations argued by Hugo Grotius on the matter of
the responsibility of the supervisor shall meet three conditions, as follow:
1. the person shall have an authority to control the subordinates' actions,
a simple example: a relationship between father and son, between an employer
and his/her employee
2. there is a knowledge in which a person knows that a crime has been
committed by his/her subordinates, but does not prevent the action.
3. there is a capability of the person to prevent a crime. It means that if
someone has proven of not being capable or has failed to take any
prevention, therefore he/she cannot be charged for supervisor's
responsibility;
Considering, that the limitation of the responsibility of a superordinate
has provided the basis for the stipulations about the responsibility of a
superordinate in the Statute of International Criminal Tribunal for Former
Yugoslavia (statuta ICTY), the Statute of International Criminal Tribunal
for Rwanda (Statuta ICTR) and Rome Statute, which later adopted to Law
No.26/2000 on Human Rights Court (article 42 paragraph 2 (a) and (b).
Considering, that the implementation of this doctrine besides having been
used in the prosecution of military superordinate's responsibility for
his/her failure to act like in the cases of Yamashita, High Command,
Hostages and Mayer, later, in further development, in the Tokyo Court it has
been decided that the superordinate's responsibility also covers civilian
(non military) superordinates. This matter shows an indication that in a
certain circumstance can be used analogically a responsibility of a Military
Commandant and a responsibility of a non military superordinate or civil
official. The additional Law are Article 86 Addendum 1 on the Geneve
Convention in 1949 and 1947, state that in a certain circumstance, all
superordinates (all superiors) should take any responsibility for their
failures to take any actions. Then Article 7 paragraph 3 ICTY Statuta also
demonstrates not only on the military superordinates but also covers non
military superordinate (kasus Celebici).
Considering, that Prof. Muladi, in his paper titled Kejahatan Terhadap
Kemanusiaan (Crime against Humanity) delivered during the Training for Ad
Hoc Human Rights Judges on November 7, 2001, among others said that in Rome
Statuta, article 7…. etc (sic!), from the word of organizational policy, it
can be concluded that ca rime against humanity in a certain curcumstance,
can be committed by a perpetrator who is non-State actors, so it not
necessary to have a military character or a state official;
Considering, that in his paper on a Pertanggungjawaban Komando (Command
Responsibility), among others said that the Position of responsibility can
also be linked to civilian authorities, at the Rwanda Tribunal (ICTR), a
factory director has been prosecuted and sentenced because he did not
interfere and did not prevent the genocide committed by his subordinates
after office hours;
Considering, that according to the Panel of Judges, since genocide is also a
grave human rights violation, then, in this case of a crime against
humanity, a position of civilian authorities can be applied;
Considering, that the command responsibility is not only applied towards
formal commander, but also towards people who have Informal positions, in a
circumstance of he/she can use his authority as a Commandant that can happen
in a civil war;
Considering, that a civilian who is put on trial as a perpetrator of a Crime
against Humanity, and who is responsible for a crime committed by someone
else, is found in the Tadic case, he is an owner of a tavern and works as a
part time traffic controller, and become a local politician and who has
influence in his hometown, and has been brought to the International Court
in Hague as a Defendant for committing grave human rights violation.
Considering, that from the above explanation, in fact, in the international
court practices against the crimes against Humanity, as well as against the
genocide, a perpetrator of Grave Human Rights violation can be applied to
and asked responsibility from a civilian, in his/her position as a leader in
formal Government or non Government position, moreover a non formal leader
can be perceived as a Law subject/as a perpetrator and can be asked for
his/her responsibility for committing Grave Human Rights violation or for
crime committed by someone else;
Considering, that the Defendant has been brought to the trial on Grave Human
Rights Violation in his position as a former Deputy Commander of PPI and/or
also an Aitarak Commandant, in other words he has been positioned as a
Defendant in his position as a superordinate/leader of an organization;
Considering, that in a simple explanation, an organization is a unit of
duties and officers who are working together to achieve a certain goal;
Considering, that in terms of the system of organizational Procedure, an
organization can be identified in 3 (three) forms:
1. informal organization, known as entrepreneural mode (sic!), the design of
this organization is commonly used in a new Organization. In a common
practice of this kind of organization, someone with the highest rank of
position is the one who decides the certain aspect of the organization which
he/she thinks has a strategic value for the continuity of the organization
to reach the goal from several strategies that have been applied.
2. an adaptive organization, commonly used in a middle-size organization,
and works in a stable environment;
3. a design known by a multi level strategic planning mode, this kind of
organization requires the involvement of various units, used by big
organizations, with extensive hierarchy, large amount of members, and large
geographic operational territory.
However, an organization can consist of combination of the 3 forms;
Considering, that according to the Defendant's statement and the witnesses'
testimonies, the PPI was a new name or a new face of barisan partisan, an
organization of armed civilians which fought Fretilin, which faced the
situation and development of security, in 1999 the Deputy Commander of
Barisan Partisan, Joao Da Silva Tavares had initiated the Barisan Partisan
based on 3 main ideas, as a political umbrella for self protecting and self
defends, as a media for general mass mobilization to defend and maintain the
Integration, as an organization for controlling the re-emergence of spirit
of struggle which had sporadically occurred everywhere, from the second main
idea, it was decided to establish an umbrella of Pasukan Pejuang Pro
Integrasi/PPI (Pro Integration Force) to continue the struggle for
Integration through mass mobilization, particularly to face the popular
consultation/ballot, so that the one who had initated Joao Da Silva Tavares
became the Commander, while the defendant as the Youth Figure became the
Deputy Commander;
Considering, that seen from the basic idea and the founders and that this
organization was established to face the popular consultation/ballot in
1999, then this organization called PPI was relatively new, even though it
had no clear structure, but it can be said as an Informal organization, and
as PPI Deputy Commander, the Defendant occupied as a Leader in the
organization.
Considering, that as mentioned by the witnesses and the Defendant, it has
been proven that the PPI supervised Informal organizations consisted of
several Pro Integration groups among others were Aitarak, BMP, Halilintar,
Alpha, Mahidi, Mahadomi, Saka Sera, Laksaur, etc, which has its own
authority and task in each territory;
Considering, that besides as a Deputy Commander of PPI, the Defendant Eurico
Guterres, based on the witnesses' and the defendant's statements, also
occupied a position as Aitarak troops Commandant, who had members throughout
Dili and villages around Dili;
Considering, that therefore the Defendant has been proven that he, who
occupies the position as a Deputy Commander of PPI and Aitarak Commandant,
meets the matter on a leader, or a superordinate who has subordinates or
members;
Considering, that PPI was also a military wing of FPDK and BRRT, groups of
community who politically struggle for Integration of East Timor to
Indonesia, therefore the defendant is also a military wing leader from Pro
Integration group;
Considering, that as a leader of PPI in his position as a Deputy Commander
of PPI, has been proven that his authority applies inside and beyond his
organization;
Considering, that this fact as said by witness Drs. Basilio Araujo, as well
witness Abilio Osario Soares and whose testimonies verified by the
Defendant, that the Defendant as the Deputy Commander of PPI, was
acknowledged for his leadership as a leader of military wing of Pro
Integration group by international bodies (UN), and several times
represented the PPI and/or Pro Integration groups to arrange meeting or
ceasefire with Anti Integration's military group initiated by the UN before
and shortly before the implementation of popular consultation/ballot;
- On behalf of the fighter group of the Pro Integration group requests the
UNAMET to postpone the popular consultation/ballot
Considering, that in the organization, the Defendant as the PPI Deputy
Commander, and therefore becomes a PPI leadership, has authority to control
his subordinates, and has important influence in his organization led by
him, such as:
- To appoint and attend the assignment and inauguration of Besi Merah Putih
group, which was attended by thousands of masses from Liquisa Maubara, when
the Defendant installed the BMP Commandant and members
- The willingness of the Defendant to install and inaugurate the BMP can be
used as a measure that the Defendant's position has a big influence to
determine the assignment of Pro Integration Commandants in regions, of
course in order to work together with the PPI leader, who is the Defendant,
also has a rights to order, warn or discipline the subordinates he has
installed;
- The Defendant's statement as the PPI Deputy Commander, that was considered
as an instruction that should be obeyed by his subordinates, such as the
Defendant's statement that all political elites should not leave Dili
before, shortly before and after the popular consultation/ballot, was
considered by his subordinates, the Pro Integration groups in regions as an
instruction or an order, so that anyone who wanted to get out off Dili
should get a Pass or a travel letter signed by the Defendant as a PPI Deputy
Commander, so that every day the Defendant signed thousands of travel letter
to help people getting out of Dili safely.
Moreover according to witness Abilio Soares (former East Timor Governor) the
Governor family who wanted to get out of Dili to Kupang just managed to go
out of Dili after getting a Pass or a letter from the Defendant as the PPI
Deputy Commander, a statement that has been verified by the Defendant;
Considering, that therefore it has been proven that the Defendant's
statement as a PPI Deputy Commander, has been considered as an Instruction,
order obeyed by his subordinates, so that the Defendant's instruction has
gone beyond the Pro Integration groups' authority in throughout East Timor
territory, applied towards a family of a high rank officer like Governor
Abilio Osario Soares, as well as towards people who want to go out of Dili;
If a statement can change to become the instruction which is obeyed, then
cannot be imagined how big the Defendant's authority as a Leader, that is
the Deputy Commander of PPI authority.
Considering, that other evidences that show how big the Defendant's
Influence is in his position as the PPI Deputy Commander, that during the
Big Rally at the Governor courtyard on April 17, 1999, according to the
witness Joao Da Silva Tavares, it was the Defendant who asked him to be the
Irup and deliver a speech in the event, the request delivered several days
before the event commenced, so that the Rally which was supposed to be a Pam
Swakarsa inauguration, became a PPI Rally as explained by witness Abilio
Soares, and the one who became the Irup was Tavares as requested by the
Defendant;
Other person who delivered a speech on that day, besides Tavares, was the
Defendant as the Deputy Commander who in fact got responses from thousands
of masses, it is uncommon if in a formal event both the Commander and Deputy
Commander deliver speeches, this fact has proven that the Defendant has a
big influence towards his subordinates in the organization led by him;
Also there were requests to the Defendant from apparatuses or other parties
to settle conflicts among groups has shown the Defendant's big Influence in
his organization;
Considering, that therefore the Defendant in his position as the PPI Deputy
Commander has been proven for having authority beyond and inside his
organization, so that de facto and de jure, even though the PPI is an
Informal organization, has no full Structure, but has leadership element
among others the Defendant as a Deputy Commander, a Commander, and
subordinates who obey the Defendant's instruction and Order, because the
Defendant's big influence on them;
Considering, that as an Aitarak Commandant, it has been proven that
according to the Defendant's statement confirmed by witnesses that he has
members or subordinates throughout the villages in Dili regions and city,
the Defendant owned 160 fully armed troops in Dili City, equipped with
home-made pistols, rifles, mousers, SKS, G.3 firearms, machetes, spears, the
Defendant himself had a G.3 weapon, as well as thousand members in the
Villages who owned home-made weapons, spears, machetes, who could be
utilized anytime.
Considering, that the Defendant has an effective Control upon his
subordinates, because he has a good relationship with the Head of the
Villages, the Head of the Villages were appointed by the Defendant as the
Head of Aitarak in their villages, so that the order, instruction were
executed through the Head of Villages and his subordinates were able to be
controlled, through the appointment of the Head of Villages as the Heads of
Aitarak in the villages was used by the Defendant for communication network
or reporting system, so as admitted by the Defendant he was able to know
immediately the situation in the villages through the communication network
of the Heads of Villages, so was able to act immediately if an incident
occurred. The Defendant's instruction, order were obeyed by his members.
Considering, that from thousands of his members, and Heads of Aitarak, there
was only one Head of Aitarak, who was the Head of Aitarak in Ainaro Village
who was difficult to be controlled, the Defendant had warned the Head of
Village and who was also the Head of Aitarak for carrying M 16 weapon, a TNI
standard weapon.
Considering, that a leader's or commandant's or superordinate's warning on
his subordinates, such as the defendant's action on his subordinates, is a
matter of organizational measure, even though it is a small scale or has as
small impact, the importance of this fact is that there is a mechanism of
authority to take action owned and possessed by the Defendant as a
superordinate or an Aitarak Commandant, due to his position he has an
authority to take action;
Considering, that the Defendant had ever proposed 150 Aitarak members to
become Pam Swakarsa members, and were paid Rp.150.000,- per month and 10 kg
rice, while according to the witness Abilio Soares's testimony, witness
Dominggus M. Doares Soares (former Governor and former Dili City Major), the
proposal of the Pam Swakarsa members was done by the Head of Villages in the
villages, on the district level etc, the budget for Pam Swakarsa provided by
each region (APBD) approved by the Governor;
Considering, that the Defendant's order was also obeyed by members, such as
an order to blockade several streets in Dili, guarded by Aitarak masses, was
obeyed by his subordinates, which according to the Defendant to prevent the
clash between groups, as affirmed by Sujarwo, the former Dili Kodim
Commander, as he testified that several streets were controlled by anti and
pro integration groups, one to pass the streets should take precaution,
careless one could be shot, to pass certain streets, the witness was
accompanied by troops or a truck of troops;
Considering, that the streets blockade as instructed by the Defendant to his
subordinates and was obeyed by the Defendant's subordinates who were the
Aitarak members, was basically an effective control to rule his territory,
to show authority, group existence or authority on the territory, or the
streets that were controlled, besides that it has proven the Defendant's
effective order, which was obeyed by his subordinates who were Aitarak
group;
Considering, that the Defendant admitted he had been a leader since his
elementary school, as a Chairman of OSIS (Student Organization) in his high
school, as a Chairman of Student Senate in his university, therefore having
a position as an organization leader has been familiar to him since his
education, so that the Defendant's capability to organize his subordinates
or organization was unquestionable. So that the understanding, awareness and
recognizing of the importance of position and responsibility as a leader or
a Superordinate has been understood by the Defendant;
Considering, that the awareness, understanding, recognizing of an action or
deed done and the awareness on a result of an action or deed becomes a basis
of crime responsibility for the action committed by him, included the
responsibility as a superordinate;
Considering, that since the Defendant understands the meaning of the
importance of being a superordinate or a leader, which is as a PPI leader,
in his position as the Deputy Commander, as well as his position as an
Aitarak Commandant, who has subordinates or members, has authority to
effectively order and control the subordinates or members, as well as the
authority to take measure on his subordinates, as it has been proven by the
above arguments and the existence of PPI and Aitarak as informal
organizations, so that the Defendant position is a civilian superordinate
who has authority acknowledged de facto and de jure. Therefore a matter of
civil superordinate who has capability to take criminal responsibility
according to the Panel of Judges has been met.
Ad.2. On the Matter of having subordinates, having authority to conduct an
effective control, on his subordinates properly and correctly
Considering, that on the second matter on the relation between superordinate
and subordinate which has the power toconduct an effective control, does not
conduct any proper and correct control on his subordinates, the Panel of
Judges will make consideration on the matters as follow:
Considering, that in principle the relation between a superordinate and a
subordinate is that de jure and de facto the superordinate has an authority
to control his subordinate properly and correctly, the superordinate should
have an authority to control his subordinate and be able to give order and
guidance to his subordinate;
Considering, that the categorization of a superordinate covers political
leaders, company directors, and senior civil officials (Celebici case), as
well as in a military organization, a superordinate has levels of
responsibility from one superodinate onto the lower ranks. Jean Claude
Akayeshu, a City Major of (bourgmestre) who implemented an executive
function and implemented public governance in the society, including the
authority on politicians should take a criminal responsibility for action
committed by his subordinates even though he was not a military member who
had a responsibility as a Commandant but he was considered as having a legal
mandate and was considered as a formal official, agen or a someone who had a
public authority, or de facto represented the government to support violence
committed by groups of Hutu tribes towards Tutsi tribes, this fact added by
the requirement that he knew that his subordinates conducted such action or
was going to commit such action, while the superordinate failed to take any
necessary and rational action to prevent it.
Considering, that Dusco Tadic, a Serbian nasionalistic figure who was a non
military, who was always wearing paramilitary uniform, and who was
supporting Serbian militia, was often conducted propaganda to kill Muslim
group (balijas) who later when he became a national leader was assigned a
task to "clean" Moslem civilians. His ethnic brutality increased when he was
assigned to manage Omarska concentration camp, even though he was not a
military member. Tadic was not a person who had a command authority or had a
capability to take a big role in an event, but he was a symbolic figure, who
became a scapegoat of a Serbia-Bosnia communities. ICTY judges admitted that
20 years sentenced on him due to his brutality that violated 11 (eleven)
violations against humanity, had become more as an individual criminal
responsibility than a collective crime. His responsibility degree had been
considered lower than military officers or the main designers of ethnic
cleaning in the former Yugoslavia country. This case ignored the principle
of "one witness is not a witness", because of the reluctancy of the witness
victims to testify before the court because afraid of a revenge.
Considering, that the meaning of subordinate is a person who has a
superordinate who directly guides his actions or related activies. In a big
organization, someone also has a position both as a superordinate and as a
subordinate.
Considering, that the meaning of an effective authority and control is if a
superordinate has de jure and de facto authority to issue directive to his
subordinate to execute a certain duty or related activity.
Considering, that as stipulated in Article 86 addendum I of the 1977
Convention, stating that a superordinate should make an effective reporting
system to assure that in performing his task his subordinates should follow
humanitarian rules of law, and if he knows that there has been a potential
for violation or a violation that has just been conducted (actual), so he
should take any actions to prevent or to deal with the violation. Therefore,
a superordinate should take a responsibility for Grave Human Rights
violation committed by his subordinate, if:
- the superordinate knows that one of his subordinates has or is going to
commit a grave Human Rights violation; or
- the superordinate gets information that enables him to conclude that his
subordinate has committed or is going to commit a grave Human Rights
violation; and
- the superordinate does not take any action in his authority to prevent the
occurence of the grave Human Rights violation.
Considering, that from the analysis above, the Panel of Judges will
deliberate on the defendant's position in relation to the discussion of ad
2.
Considering, that based on the defendant's and witnesses' statements, it has
been proven that on April 17, 1999 an attack on Manuel Viegas Carascalao's
house took place in Dili, East Timor, resulted in 11 (eleven) people dead
and 3 (three) persons wounded, they were civilians who among others were
refugees, and one of Manuel Viegas Carascalao's son, named Manelito;
Considering, that several survivors who are Alfredo Sanchez, Florendo de
Jesus, Santago (sic) Dos Santos, Victor Dos Santos alias Apin, has
recognized some of the perpetrators, according to the witnesses, they are
members of Aitarak militia from Dili and Besi Merah group from Maubara
Liquisa and has recognized their names, because among the witnesses, they
are those coming from the same region with the perpetrators, which are from
Dili and Maubara, Liquisa;
Considering, that according to the above witnesses the attackers were
numerous, they were the militias participants of the rally at Dili Governor
Office courtyard. The witnesses testimonies have been supported by
testimonies of witnesses Ablio Soares, Jose Afat, Domingus M. Dores Soares,
and Joao Da Silva Tavares, who has said that according to the information
they receive, that the Pro Integration group participants of the Rally on
April 17 at Governor Office courtyard have been the attackers on Manuel
Carascalao's house;
Considering, that according to witness Manuel Carascalao and the above
witness victims, they heard about the Rally at Governor Office courtyard on
April 17, 1999 and heard from the radio about the speech of the Defendant
Eurico Guterres delivered at the event.
Considering, that witness Joao Da Silva Tavares and the Defendant have
admitted that at the Big Rally at Governor Office courtyard on April 17,
1999, had delivered speeches before thousands of PPI members, who were Pro
Integration group masses, consisted of members of troops of Aitarak, Besi
Merah Putih (BMP), Alpha, Maha Domi, Laksaur, Saka Sera, Ablai, Mahidi, and
others who came from all regencies in East Timor. Besides that, according to
the witnesses and facts uncovered before the court, most of the thousand of
masses carried weapons, such as sticks, machetes, samurai, homemade rifles
and pistols;
Considering, that according to Witness 5 Dr Baislio (sic!) Araujo MA, one of
the witnesses who were at the location during the Big Rally, whose his
testimony has been verified or at least has not been denied by the
Defendant, testified under oath before the court that during or after the
Defendant's speech, shouts and yells of "kill, kill" were heard from
thousands of participants who greeted the defendant's speech, moreover
according to the Defendant's statement, some participants responded by
firing their guns and gunshots were heard from every corners of the crowd;
Considering, that therefore it has been proven that on April 17, 1999 at
Dili Governor office courtyard, there was a concentration of thousands of
Pro Integration masses and it has also been proven that the defendant's
speech got responses from the concentration of thousands of masses with
shouts of "kill, kill". This fact is a convincing evidence that the
Defendant's speech had evoked emotion of the masses to kill;
Considering, that according to the Defendant that his spech was concerning
the East Timorese's willingness to be integrated with Indonesia and accept
the full autonomy which was responded by the masses with "kill, kill",
according to the Panel of Judges, such shouting of the masses was pointed
towards anti integration group or Pro Independence group. Therefore, it has
been proven that the Defendant's speech had evoked emotion of the masses to
kill Anti Integration or Pro Independence group;
Considering, that Manuel Carascalao was a CNRT figure who was anti
integration who was accused by the Defendant before the court as a traitor
of the country, his house was next to Aitarak headquarters led by the
Defendant, and there were many refugees consisted of children, womens, youth
took shelter at Manuel Carascalao's, because at their homes there were many
intimidations, terrors, supressions from pro integration group;
Considering, that even though the Defendant saw thousands of masses at Dili
Governor office courtyard on April 17, 1999 carrying various weapons, such
as sticks, machetes, homemade firearms, which the presences of the masses
had worried the a de charge witness, Marcelino Martin Ximenes, so that he
went home before the event was over, because worried that something might
happen. The development of such situation of masses concentration was
considered as a common matter by the Defendant, so that he did not take any
action, in fact the defendant's speech had evoked emotion of the masses to
kill, and the threat to kill was aimed directly towards anti integration
group or Pro Independence group, and more obviously was showed by shotguns
from every corner of the rows, which according to the rule were prohibited,
moreover, the Aitarak headquarters in Tropikal Dili was next to Manuel
Viegas Carascalao's house who was an Anti Integration figure or CNRT figure
who was Pro Integration whereas many refugees came to take shelter at the
house;
Considering, that according to the Panel of Judges, at that time, the
Defendant as a superordinate or leader of PPI group or as Aitarak troops
Commandant, who was very familiar with the situation and condition in Dili
and generally in East Timor which was prone to clashes caused by however
small misunderstanding between two groups which had different opinions which
were the groups of pro and anti integration in facing a problematic
situation, in one hand, emotion of the masses to kill pro independence group
had occurred, on the other hand next to the Aitarak Headquarters there was a
house belonged to an anti integration figure or pro independence group,
Manuel Viegas Carascalao, which was occupied with hundreds of refugees
consisted of children, youths, mothers which before the attack, according to
Witness Manuel Carascalao their numbers were 136 people, and the situation
at that time could not be considered as a usual situation;
Considering, that concentration of armed masses was a force, and it was true
that evoking emotion to support Pro Integration movement was not prohibited
by law and rules, but the action to evoke emotion to kill human being
especially civilians, such as the refugees who took shelter at Carascalao's
house, was in contradiction to the law, because civilian rights to live is a
rights that should be protected and respected regardless the difference in
religion, race and political ideology;
Considering, that in a problematic situation where there was a concentration
of the masses having emotion to kill, and on the other hand there were many
civilians who were refugees at Manuel Carascalao's house, the threat to the
refugees was really a fact, as the leader of the group of masses, the
Defendant should had taken a position after observing the development of
situation of the masses to prevent any excess occurred as a result of his
speech.
Considering, that since the evocation of masses emotions to kill anti
integration group was considered as a normal matter in such a ceremony by
the Defendant, the Defendant did not take any action to prevent obvious
problem of threat from the ceremony participants to the refugees who took
shelter at Manuel Carascalao's house where the house located not far from
Aitarak headquarters, so that a group of the ceremony participants from
Aitarak and Besi Merah Putih groups attacked the house resulted in 11
refugees were dead and 3 persons were wounded;
Considering, that the Panel of Judges is convinced that as described in the
above facts that the group who attacked the refugees were some members of
Aitarak and Besi Merah Putih whose emotion had arisen after hearing the
defendant's speech, and committed their intention to kill anti integration
group by attacking the refugees;
Considering, that since the attackers were the defendant's subordinates and
the defendant as PPI leader which was the PPI Deputy Commander and Aitarak
Commandant, had big influence on his subordinates and therefore could
control his subordinate effectively, had a capability to prevent his
subordinates' actions not to commit attack on Carascalao's house;
Considering, that the Defendant's capability to prevent his subordinates
committing attack on the refugees at Carascalao's house, according to the
Panel of Judges is equal or similar to his capability to evoke masses'
emotion, since the defendant has a very big influence on pro integration
group or his subordinates;
Considering, that since the defendant did not use his big influence or his
big authority as a PPI Deputy Commander and as Aitarak Commandant and did
not take any action towards emotion of the masses who wanted to kill, it
means that the defendant has allowed the real threat from his subordinates
to kill the refugees, therefore it can be considered that he has not
conducted any effective proper and correct control towards his subordinates,
although he is capable of doing it, therefore resulted in the attack on the
refugees at Carascalao's house committed by some of Aitarak and Besi Merah
Putih participants of the rally at Dili Governor office courtyard on April
17, 1999, which resulted in dead and wounded civilians;
Considering, that since there has been mistake of the defendant in which
members of Aitarak and BMP members group had attacked Carascalao's house as
a result of the defendant did not control his subordinates properly and
correctly, while the defendant had a capability as a deputy commander dan
Aitarak Commandant to prevent his subordinates' actions, then, the crime of
the defendant's subordinates can be asked for the defendant's responsibility
as a superordinate or PPI leader;
Considering, that based on the above considerations, according to the Panel
of Judges the second item of the First Indictment of Ad Hoc Prosecuting
Attorney has been met and related to the Law.
Ad.3. On the Matter of Knowing or Deliberately Ignoring the Information
Considering, that the meaning of "knowing" or "deliberatly ignoring the
information", consists of elements: there is an actual knowledge, known from
direct evidence or based on the condition at that time, he/she should have
known. The standard of "should have known" is different between a military
superordinate and a non-military superordinate. For a non-military
superordinate (civil) it should be proven that:
- the information obviously shows a significant risk that they are
committing or are going to committ Grave Human Rights violation;
- the information is obtained by a superordinate; and
- the superordinate knows about the information, but has failed to determine
the category of the information
Considering, that as considered by the Panel of Judges, after the defendant
delivered a speech at the Governor Office courtyard in Dili East Timor, on
April 17, 1999 before thousands of armed masses, had evoked masses' emotions
to kill, this matter was a real threat for anti integration or pro
independence group because the threat was aimed directly towards them
including the refugees who stayed at Manuel Carascalao's house where the
house was near the Aitarak headquarters or near some of participants of the
pro integration ceremony.
Considering, that there had been a change of emotion and behaviour among
participants of the big ceremony after hearing the Defendant's speech by
yelling 'kill, kill', accompanied by the shooting of homemade firearms, some
of the participants had become more aggressive to kill pro independence
group, which matters should have been known by the Defendant.
Considering, that suppose the Defendant, in his position as PPI Deputy
Commander and Aitarak Commandant, had used his maximum power to prevent the
violence by taking real and logical steps, the attack on Manuel Carascalao's
house might not happened or at least would reduce the victims and the
damages.
Considering, that Panel of Judges thinks that the Defendant has deliberately
ignored the direct information he got which was the escalation of
aggressivity among the ceremony participants masses to attack the pro
independence group, particularly the refugees who took shelter at Manuel
Carascalao's house.
Considering, that the third item which is the matter of knowing or
deliberately ignoring the information has been met, therefore it has been
proven according to the law.
Ad.4. On the matter of does not take any proper and necessary action in his
authority, prevent, quell the action, hand over to the responsible officials
for investigation, question, and prosecution;
Considering, that on this matter, the Panel of Judges considered the
following:
Considering, that all superordinates have duty to take practical actions
which assure that his subordinates follow the rules in conducting their job;
Considering, that the Defendant as a PPI leader and Aitarak Commandant did
not conduct any proper and correct action on Aitarak members and BMP members
who had attacked Manuel Carascalao's house after the Big Rally on April 17,
as testified by victim witnesses Alfredo Sanchez, Victor dos Santos alias
Apin, Santiago Dos Santos and Florendo de Jesus, who were living witnesses
who had recognized most of attackers at Manuel Carascalao's house. Moreover,
knew most of the attackers because the attackers came from the same region
with the witnesses who according to them most of them were TNI and KAMRA
personnels, other attackers were known to the witnesses as Aitarak members
from Dili and BMP members from Maubara Liquisa.
Considering, that according to the witnesses, the attackers among others
were Aitarak and BMP militias who came into the house by bumping against the
front door, then shot the door, after that surrounded the house and entered
the house, attacking the refugees inside the house by hacking, slashing with
machetes and samurai, shot with home-made firearms. Some of the refugees
were able to escape and some of them were trapped inside the house, the
attack resulted in 11 refugees dead and 3 people wounded;
Considering, that the victims of the attack are refugees, unarmed civilians
consisted of children, mothers, and grown ups, so that it upsets human
conscience, while the Defendant has not conducted any action to arrest the
attackers who in fact are his subordinates from Aitarak and BMP groups
established and appointed by the defendant, and the perpetrators are known
to the witness victims.
Considering, that at least allowing Aitarak and Besi Merah Putih members,
whose emotion has arisen to kill anti integration group and implemented in
the form of attack on Manuel Carascalao's house, while the Defendant has a
capability to control and prevent his subordinates;
Considering, that based on the above considerations, according to the Judge
Panel, the fourth item of the Ad Hoc Prosecuting Attorney's Indictment has
been met because it has been proven according to the law;
Ad. 5. On the matter of the subordinates is committing or has just committed
a Grave Human Rights violation
Ad. 6. On the matter of Crimes against humanity, in the form of widespread
and systematic attack, is known that the attack is directed towards
civilians in the form of killings;
Considering, that towards the matters Ad.5 and Ad.6 the Panel of Judges will
consider them simultaneously, since the matters are linked and related to
each other;
Considering, that the matter of crime against humanity charged in this case
is an action committed as a part of an attack, should meet the elements of
widespread, systematic and is aimed towards civilians, and the Panel of
Judges' consideration on this matter is as follow;
Considering, that a grave human rights violation based on Law No.26/2000
including the crime against humanity, and if factors of widespread or
systematic have been found. The Incident in East Timor can be categorized as
crimes against humanity, because it has met the elements of "widespread",
"systematic" and is aimed towards civilians (civilian population, sic!):
- The "attack" means that the attack is not necessary a military attack, as
defined by the international humanitarian law, it means that the attack
should not always involve military power or the use of weapons. In other
words, whenever there is a murder happened as a result of a power movement
or operation aimed towards civilians. The clash is included in the
terminology of attack;
- "Attack towards the civilians" does not mean that the attack is always
committed on the whole population, but can be an attack on a certain group
of civilians who has a certain political conviction;
- "Widespread" means that during the incident it has been proven that
massive, frequent, large scale killing takes place, committed collectively
with a serious result, namely, a large number of dead victims;
- "Systematic" means that a formation of idea or principle based on planned
research or observation with a common procedure. In relation to the Grave
Human Rights violation, the definition of systematic may mean an activity
which has a common pattern and consistent pattern, pattern here means
related structure or design. Meanwhile consistent here means an idea
indicated by unchangeable or related position, it can also mean a certain
character formed and expressed repeatedly.
Considering that the definition of systematic covers 4 (four) elements as
follow:
- A political aim, a plan for attack, an ideology, in its extensive meaning
to destroy or to weaken a certain community;
- Commit a large scale crime towards a group of civilians or repeatedly and
continuously conducted inhuman actions related to each other;
- A significant preparation and the significant uses of properties or
facilities belong to public or an individual;
- A high-level political implication or military authority in defining and
implementing a methodological plan;
Considering, that based on the Panel of Judges' considerations on the ICTR
in the cases of Kayishema and Ruzindana, a widespread and systematic attack
is:
- An attack that has a nature of an attack resulted in many victims, an
attack becomes systematic if the attack has been committed based on a
carefully thought plan (preconceived).
Considering, that in this case, based on the facts uncovered in the court,
in almost the whole 13 regions in East Timor, violence, murders, abuses
towards community had happened, burning down in a same and repeated pattern;
Considering, that violence, murders, abuses committed by Pro Integration
group of troops has been a part of planning and strategy to win Pro
Integration group in the popular consultation/ballot, as conforming with
Government's policy to secure East Timor as a part of Indonesia;
Considering, that based on the testimonies of witness victims of Alfredo
Sanchez, Victor Dos Santos, Santiago Dos Santos, Florindo de Jesus, and
other witnesses before the court that the victims of the attack at Manuel
Carascalao's house were civilians who took shelter because they were afraid
of terror and intimidation in their hometowns from Pro Integration group.
Considering, that to sentence a Defendant in a Grave human rights violation,
it must be proven that the Defendant has knowledge and sympathy on a policy
that resulted in the crime, which is a basic element that differentiates him
from an ordinary criminal so that the Defendant can be punished for action
committed by someone else.
Considering, that as considered by the Panel of Judges that based on
testimonies of the witnesses and the facts uncovered in the court, it is
true that there has been a relation between the Defendant's speech at the
big rally at the Governor office courtyard on April 17 with the violence
committed by some of the rally participants consisted of Aitarak and Besi
Merah Putih groups, who are the Defendant's subordinates or at least people
who are under the Defendant's effective control.
Considering, that based on the witnesses' testimonies taken under oath and
the Defendant's statement and related to the facts before the court, it is
obvious that:
- On April 17, 1999 a Big Rally was held at Dili Governor office courtyard
attended by thousand masses of participants from regencies in East Timor
wearing attributes and their own symbols who all of them supported Pro
Integration group, attended by among others Governor and Dili City Major. As
said by a de charge witness Marcelino Martin Ximenes:
- The Irup at the Big Rally was Joao Da Silva Tavares as PPI Commander,
delivered the ceremony's opening speech by saying that participants should
win the integration process and reject the popular consultation/ballot. In
the event, an inspection of the troops was conducted by the PPI Commander
and Deputy Commander on a military vehicle;
- Besides the PPI Commander, the Defendant as PPI Deputy Commander delivered
a speech which evoked emotion of the masses to kill Pro Independence group
including Witness Manuel Carascalao. The speech was heard by witness Manuel
Carascalao, Maria Carascalao and other victim witnesses from the radio. The
Panel of Judges believe in their testimonies because before they gave
testimonies, they have taken oath and are linked to other witnesses'
testimonies, and the facts uncovered in the court, that according to witness
Abilio Soares and the Defendant that the event was covered by mass media,
such as the RRI and other private radio stations;
- The big rally resulted in violence, not only at Manuel Carascalao's house
but also the attack on Leandro Isaac's house;
- Considering, that according to Witness Abilio Soares, which has been
verified by the Defendant, a lot of rally participants carried weapons such
as machetes and homemade firearms;
Considering, based on the witnesses' testimonies, particularly witness
victim Alfredo Sanchez, Santiago Dos Santos, Florendo de Jesus who had
witnessed the incident, the apparatuses come right after the attack was
over, while according to Witness Manuel Carascalao he had reported that
there was going to be an attack on his house to Dan Rem Tono Suratman, but
did not get any response. So that the attack happened;
Considering, that based on the above facts, the Defendant has allowed his
subordinates attacking Manuel Carascalao's house. Not only was the Defendant
who ignored but also the military personnel, Dan Rem Tono Suratman,
responsible civil officials including Governor and Dili City Major, and
other security personnel who should have taken responsibility. The ignorance
by all of them has indicated a common aspiration to support pro integration,
their aim was to secure that East Timor remain a part of Indonesia. The
consistent pattern of ignorance in several incidents in East Timor is
sufficient to prove a systematic planning to win pro integration group,
which resulted in attacks on civilians;
Considering, that based on the considerations above, according to the Panel
of Judges the 5 and 6 items have been met, because they have been proven
according to the law;
Considering, that based on the considerations above, seen from the relevancy
and the connection between one to another, and related to the current
theory, principles, norms (treaty norms and customary international norms),
and the practices of international court on the cases of crime against
humanity, the Panel concluded that a charged crime (actus reus) has been
legally and convincingly proven, in the form of the Defendant has
participated in supporting action which results in as charged by the Ad Hoc
Prosecuting Attorney.
Considering, that the Panel of Judges will deliberate on the Second
Indictment:
Considering, that in the Second Indictment, the Defendant has been charged
of committing a crime as ruled in Article 7 b, jis Article 9 h, Article 42
paragraph (2) a and b, and Article 37 Law No.26/2000 on Human Rights Court;
Considering, that according to the Panel of Judges, the Second Indictment
are as follow:
1. A civil superordinate has a capability to take a criminal responsibility
2. Has subordinates, has authority to conduct an effective control, does not
take any proper and correct control on his subordinates
3. Knows or deliberately ignores the information
4. Does not take any proper and necessary action in his authority, prevent,
quell the action, hand over to the responsible officials for investigation,
question, and prosecution;
5. The subordinate is committing or has just committed a Grave Human Rights
violation
6. Crimes against humanity, in the form of widespread and systematic attack,
is known that the attack is directed towards civilians in the form of
killings;
Considering, that the Judge Panel will deliberate on the Ad 1 to Ad 6:
Considering, that matters of Ad 1 to Ad 6 have been deliberated by the Panel
of Judges in deliberating the First Indictment, therefore all judicial
consideration on those matters, the Panel of Judges will take all of those
over and is regarded to have been deliberated in the Second Indictment;
Ad. 6. Crimes against humanity, in the form of widespread and systematic
attack, is known that the attack is directed towards civilians in the form
of killings;
Considering, that the Panel of Judges, referring to Ad 6 in the First
Indictment and therefore to take over the deliberation in the law
deliberation of the Second Indictment;
Considering, that based on the witnesses' and the defendant's statements and
facts uncovered in the court, it has been proven that an attack committed by
Pro Integration group who were Aitarak and BMP group on Pro Independence
group or Anti Integration group, who were the refugees at Manuel
Carascalao's house resulted in 3 people wounded;
Considering, that based on the testimony of witness victim Alfredo Sanchez,
he has been wounded on his back, hand, armpit, chest caused by shooting and
stabbing. Witness Victor Dos Santos has gotten stabbed injury on his hand,
right ear and shot on his knee. Witness Florendo de Jesus has gotten hacked
injury on his body, they were hospitalized at Wira Husada hospital for
several days.
Considering, that therefore the matters in the second indictment have been
met according to the law;
Considering, that based on the whole considerations described above, all
items in the first and second indictment have been met therefore they have
been legally and convincingly proven.
Considering, that since the defendant has been found legally and
convincingly guilty of committing a criminal action as charged in the first
indictment, has violated article 7 b jis article 9 a, article 42 paragraph
(2) a and b article 37 Law No.26/2000 On Human Rights Court and the second
indictment has violated (sic!) article 7 b jis article 9 h, article 42
paragraph (2) a and b article 37 Law No.26/2000 On Human Rights Court,
therefore he should be sentenced equal to his deeds;
Considering, that before the Panel of Judges make further deliberation on
the sentence to be ruled over the Defendant, the Pledoi of the Defendant's
Lawyer Team and the Pledoi of the Defendant and the Replik of Prosecuting
Attorney as well as the Duplik of the Defendant's Lawyer Team will be
considered, as will be described briefly below;
Considering, that concerning the Pledoi of the Defendant's Lawyer Team whose
part of the content has included the exception, the Panel of Judges has
considered it in its intermediate decision therefore the intermediate
decision the Panel of Judges has taken over and been considered to be
deliberated in deliberating the pledoi of the Defendant's Lawyer Team
therefore concerning the matter there is no reason, can be rejected and
ignored;
Considering, that the Panel of Judges will consider the Defendant's Pledoi
titled "Salahkah Saya Membela Merah Putih" and the Defendant's Lawyer Team's
pledoi which main points stated as follow:
A. The defendant rejected all indictments and charges of the Prosecuting
Attorney's who states that the defendant as Aitarak commandant and PPI
Deputy Commander has been declared not effectively control or take any
action to stop his subordinates who have committed Human Rights violation
and does not bring the perpetrators to responsible officials to be processed
according to the law and has ignored and provoked PPI members under his
effective control so attacking Manuel Viegas Carascalao's house.
- Besides the above rejection, the Defendant's Lawyer Team has declared that
factions of the Big Rally consisting of several groups who come from their
own regions who have their own Commandants who have a responsibility on
their subordinates, so that the responsibility cannot be charged to the
Defendant;
- The Defendant as an Aitarak Commandant has requested all of his Aitarak
followers, troops as well as symphatizers not to be involved in violations
committed by individuals or masses before the April 17, 1999 incident;
- The position of the Defendant as PPI Deputy Commander is only a symbol so
that it has been not easy to order or control someone because the people in
the PPI are followers and symphatizers who want to demonstrate their
existence and commitment to the Integration;
- PPI is an organization having no structure, no hierarchy, no chain of
command, therefore no function of effective control;
- The matter of Command responsibility has not been met related to the
Defendant's position as an Aitarak Commandant and PPI Deputy Commander
because the existence of PPI and Aitarak is not the government's extension
nor state's apparatus such as the Police or TNI or KNPI or AMPI during the
incident, therefore it has been the responsibility of the upholder of law of
KAMTIBMAS;
- The matter of a person who effectively takes action as a civil
superordinate has not been met, because the assignment of the Defendant as
an Aitarak Commandant and PPI Deputy Commander has not been based on
assignment or decision based on the law or authentic certificate and besides
that Aitarak and PPI have never recruited their members, followers,
symphatizers from the community cannot be called as subordinates, therefore
the Defendant cannot be qualified as a responsible civil superordinate;
- The Defendant does not see the clash at Manuel Viegas Carrascalao's house
does not know whether the perpetrators have been Liquisa or BMP people,
therefore the Defendant cannot be qualified to meet the matter of knowing or
should have known that troops under his effective control are committing
crimes against humanity;
- Not even a witness witnessed and directly heard the Defendant's speech
which contains the provocation to kill Manuel Viegas Carrascalao, but only
witness Drs. Basilio Dias Araujo who heard "kill kill" from the participants
of the Big Rally;
- Because the Defendant does not plan the Big Rally on April 17, 1999
attended by thousands of masses and after the Big Rally is over, violence at
Manuel Viegas Carrascalao's house happens, therefore the Defendant cannot be
declared of guilty of "Crimes Towards Humanity in the Form of Widespread and
Systematic Attack";
B. The Defendant rejected most of the facts which have become the basis for
the Prosecuting Attorney to compose his indictment because it is not
relevant to the evidences of witnesses testimonies taken under oath before
the court, moreover, in their deliberation, the Prosecuting Attorney has
conducted a false and exaggerated interpretation;
- Many witnesses have not been able to be presented before the court by the
Prosecuting Attorney, and the witnesses' testimonies those read have been
rejected by the Defendant's Lawyer Team;
- The Defendant's Lawyer Team and the Defendant objected and rejected the
evidences and letter evidences presented before the court by the Ad Hoc
Prosecuting Attorney;
Considering, that regarding the Pledoi of the Defendant's Lawyer Team whose
part of the content has included exception, on this matter, the Panel of
Judges has considered in the intermediate decision, therefore the
intermediate decision has been taken over and is considered in deliberating
the Pledoi of the Defendant's Lawyer Team, therefore the matter is no longer
considered in this deliberation;
Considering, that according to the Panel of Judges, most of the arguments of
the Defendant and the Defendant's Team Lawyer in his Pledoi have been
considered by the Panel in the deliberation of the first indictment and
second indictment, therefore the Panel has taken over the deliberation of
those matters in this consideration;
Considering, that the Panel will consider the Pledoi of the Defendant,
pledoi and duplik of the Defendant's Lawyer Team with considerations as
follow:
On Ad.A
Considering, that what have been stated in the Defendant's and the
Defendant's Lawyer Team's argument principally have been in contradiction
with the facts in the court. According to the Panel, the Defendant is
present at the Big Rally on April 17, 1999 and has taken part to make an
agitated speech which has arisen the spirit of the PPI masses, and it is
true that the Defendant has said "kill all CNRT leaders and Manuel Viegas
Carrascalao's family". Even though the Defendant has denied and never said
to kill all CNRT leaders and Carascalao family, but refering to the facts in
the court, since the event has been broadcast on the RRI and Catholic radio,
it is certain that a lot people have heard the event, and if the fact is
related to the witnesses' testimonies among others the witness victim Manuel
Viegas Carrascalao who has said before the court that, the witness has heard
directly from the witness' radio in his car about the Defendant's speech to
kill the whole Manuel Viegas Carrascalao's family, besides that, based on
testimonies of witnesses Maria Christiana Carascalao and Santiago Dos Santos
who both of them have taken under oath, even though their testimonies are
read before the court, the Panel is convinced by the truthfulness of these
two witnesses' testimonies.
Maria Christiana Carrascalao has said that she heard from the radio the
Defendant's threatening words who has said to kill Mario Viegas Carrascalao,
as well as witness Santiago Dos Santos who has said he heard live report of
the Big Rally on the RRI radio in Dili. The witness has heard the Defendant
delivering a speech and has said that all CNRT leaders and Manuel Viegas
Carrascalao's family should be exterminated;
Considering, that many friends of witness Manuel Carrascalao, from both Pro
Integration as well as Pro Independence who have informed that Manuel
Carrascalao's house was going to be attacked and that he is going to be
killed, because the Defendant's speech has been spread through the radio and
heard by a lot of people;
Considering that according to the Panel, the defendant's speech has been
responded by PPI masses who said "kill, kill", the masses' words have also
been heard by Drs. Basilio Dias Arauio (sic!). The Defendant's speech has
provoked masses armed with pistols, homemade weapons, machetes, spears,
arrows and has become more furious;
Considering, that even though the Defendant has already known that the
masses had been becoming more furious, and were ready to attack Manuel
Viegas Carrascalao's house but the Defendant as PPI Deputy Commander and
Aitarak Commandant has not taken control and tried to stop PPI masses
consisted of masses of Aitarak, BMP, halilintar, MAHIDI, Laksaur, Ablai,
Mahadomi, Sakasera, Alpha, Seka, and after the Big rally was over, during
the convoy passing by, then the convoy attacks Manuel Viegas Carrascalao's
house resulted in 12 (sic!) people dead and other victims wounded;
Considering, that according to the Panel, a Command structure is known in
the PPI organization, because there are positions of Commander, Deputy
Commander, Battalion Commandant, Platoon Commandant in East Timor territory.
This matter shows a link of Command in the form of a link between Commandant
and his subordinates has been well recognized in the PPI organization;
Considering, that the facts uncovered in the court the Defendant is a youth
figure, a PPI figure, and a Pro Integration leader who is respected by his
followers and is obeyed by his subordinates, and the Defendant's statement
is always followed and executed by his subordinates, therefore if the
defendant stopped and prevented the PPI masses, then, the order of the
Defendant as PPI Deputy Commander and Aitarak Commandant would have been
heard and obeyed, so that the incident at Manuel Viegas Carrascalao's house
could be prevented;
Considering, that as a PPI Deputy Commander and an Aitarak Commandant, the
Defendant is a civil Commandant who can be asked for his command
responsibility for violation committed by his subordinates. That the masses
committing violence at Manuel Viegas Carrascalao's and Leandro Isaac's
houses are PPI masses and the Defendant is the Deputy Commander, and after
the Defendant has finished his speech, hours later, the incident of attack
on Manuel Viegas Carrascalao's and Leandro Isaac's houses happens;
Considering that PPI has been a FPDK military wing consisted of the
combination of Militia groups, among others were Aitarak, BMP, MAHIDI,
Laksaur, Ablai, Halilintar, Mahadomi, Sakasera, Alpha, Sekap, in which the
Defendant's has strong influence therefore the Defendant's order and
instruction have been effectively followed by his subordinates, so that the
Defendant's responsibility as PP (sic!) Deputy Commander, as well as
responsibilities of other Commandants can be requested;
On Ad.B.
Considering, that towards the rejection of the Defendant and the Defendant's
Lawyer Team in Ad B, the Panel cannot accept it because the Ad Hoc
Prosecuting Attorney, in making law consideration in his prosecution has
been based on the facts in the court;
Considering that the objection of the Defendant's Lawyer Team has actually
been discussed in the beginning of this trial session in the law
consideration at the beginning of this judgement.
Considering, that the witnesses' testimonies read before the court,
according to the Panel that even the reading of the testimonies does not
violate the KUHAP, besides that the witnesses have been taken oath, the
witnesses' testimonies are related to each other, so that the Panel is
convinced the truth of the witnesses' testimonies;
Considering, that towards the Defendant's Pledoi titled "Salahkah Saya
Membela Merah Putih", according to the Panel, it is not wrong to defend the
Red White and struggle for East Timor to remain Integrated with Indonesia,
that in this Consideration the Panel declared that it is a mistake if the
ways to defend the Red White has been conducted through violent manners on
innocent civilians and that has been a reality in East Timor;
Considering, that according to the Panel it is not wrong andcan be justified
the TNI's and Government's support on the PPI even though the support of the
TNI and Government is to win the popular consultation/ballot that would be
implemented in August 1999, but the Panel should also declare that it is
wrong and is a crime for violence happened in East Timor territory resulted
in victims of innocent civilians, dead or wounded, and the destruction of
people's houses and belongings;
Considering, that the Panel will consider the objection and rejection of the
Defendant's Lawyer Team on evidences of firearms and letters;
Considering, that the Panel can accept evidence materials and letters
presented in this court, because they have been obtained through legal
confiscation, particularly the evidence of letters has been legalized by the
Ad Hoc Prosecuting Attorney, so that can be accepted as legal evidences in
this court to support the verification effort by the Ad Hoc Prosecuting
Attorney;
Considering, that based on these considerations, the Panel rejected the
Pledoi of the Defendant and the Defendant's Lawyer Team and the Panel agrees
with the indictments of the Ad Hoc Prosecuting Attorney.
Considering, that the Replik of Ad Hoc Prosecuting Attorney is in its main
principle a statement which has been detailed in the indictment, therefore
the Panel of Judges' consideration agrees with the considerations in the
indictment letter of the Ad Hoc Prosecuting Attorney based on considerations
about matters of crime charged in the First and Second Indictment.
Considering, that regarding the additional replik of Ad Hoc Prosecuting
Attorney on the matter of typing mistakes the Panel of Judges agrees because
supported by jurisprudence that that matter is still appropriate to be used
in court practices because fostering a sense of justice compared to typing
mistakes as long as not linked to the more substantive mistakes and does not
cost anything to the Defendant in his defense.
Considering, that on the matter of application of provoked act retaliation
(sic!) principle the Panel of Judges has considered it in considering the
Defendant's exception therefore that it is the Panel of Judges'
consideration that has been used as a consideration to reject the principle.
Considering, that regarding the replik of other Ad Hoc Prosecuting Attorney
the Panel of Judges has considered it in considering the argument of the
Defendant's Lawyer Team in its eksepsi so that on this matter the Panel of
Judges has derived from reasons mentioned in the intermediate decision.
Considering, that regading the duplik of the Defendant's Lawyer Team in
principle refers to the consideration of the Pledoi of the Defendant's
Lawyer Team or the content of its eksepsi which for that matter the Panel of
Judges has considered in the intermediate decision therefore the content of
the duplik which is linked to the content of the Panel of Judges' exception
remains to be based on the intermediate decision which has been used as a
basis of consideration to reject the exception or the Pledoi of the
Defendant's Lawyer Team.
Considering, that therefore the Panel of Judges does not agree with the
duplik of the Defendant's Lawyer team which is error in word writing (sic!)
or the application of provoked act retaliation principle as considered in
the intermediate decision, therefore the reason of the duplik in this matter
the Panel of Judges has ignored because not relevant according to the law.
Considering, that regarding the reasons of the other duplik of the
Defendant's Lawyer Team the Panel of Judges has considered in the
considerations of criminal deeds therefore this matter is no longer
necessary to be considered because the Panel of Judges is consistent with
the consideration explained above which is the Defendant has been proven of
committing crime because his actions have met elements of all articles
charged on him and the Defendant should be taken responsibility for the
criminal incident.
Considering, that on the evidence materials:
- 1 (one) Getau firearm/G-3 No. FMP.172322;
- 1 (one) SKS firearm No. OH.2289;
- 1 (one) Mauser firearm Los No.;
- 1 (one) Homemade firearm;
- 1 (one) Homemade Pistol;
- TNI Directive Commander:
No 02/P/ix/1999 dated on September 6, 1999, concerning the Military
Emergency Territorial Command of East Timor (Komando penguasa darurat
militer wilayah Timor Timur);
- Decrees (Surat Keputusan):
i. - Skep/991/P/XII/1998 dated December 31, 1998 concerning the Discharge
and Appointment within the Indonesian Army's Office (Pemberhentian dari dan
Pengangkatan Dalam Jabatan Di Lingkungan Angkatan Bersenjata RI/Indonesian
Army), for Maj. Gen. TNI I Gede Nyoman Asrana along with 99 personnel;
ii. - Skep/821/P/IX/1999 dated September 20, 1999 concerning the Use of
Authority of the Military Emergency Territorial Command of East Timor
(Penggunaan Wewenang Penguasa Darurat Militer Daerah Timor Timur);
- Letters of Order (Surat Perintah):
i. Sprin/757/IV/1999 dated April 15, 1999 concerning the Official Travel to
East Timor (Perjalanan Dinas Tim Tim) for Marsda Tamtomo along with three
personnel;
ii. Sprin/889/V/1999 dated May 10, 1999 concerning the Special Assignment to
Assist the Independent Commission (Bertugas Khusus Membantu Pelaksanaan
Komisi Independen) for Maj. Gen. Zacky Anwar Makarim along with two
personnel;
iii. Sprin/1096/VI/1999 dated June 04, 1999 concerning the Order to Maj.Gen.
Zacky Anwar Makarim along with two personnel as members of TP40KTT;
iv. Sprin/1660/VIII/1999 dated August 13, 1999 concerning Security Advisor
(Sebagai Penasehat Keamanan) P3TT in Dilli, East Timor for Maj.Gen. TNI
Zacky Anwar Makarim along with two personnel;
v. Sprin/1798/IX/1999 dated September 07, 1999 concerning the East Timor
Territorial Command (Penguasa Daerah Militer Wilayah Tim tim).
- Telegrams:
i. TR/614/1999 dated June 17, 1999 concerning the Security Guarantee in East
Timor;
ii. STR/675/5/1999 dated July 6, 1999 concerning Popular Consultation for
East Timorese;
iii. STR/551/1999 dated September 5, 1999 concerning the Anticipation of
Developing Situation in East Timor Territory.
- Reports of Situation (Laporan Situasi):
i. STR/560/1999 dated September 22, concerning the Report of Situation of
the Fourth Week dated September 14 to 20, 1999;
ii. STR/17/2000 dated January 20, 1999 concerning the Report on the
Indication of Worsening Security Situation in East Timor;
iii. R/33/1999 Lapsit dated October 11, 1999 concerning the Report of the
Development of the Situation in East Timor on October 11, 1999.
- Others (Special Report / Laporan Khusus):
i. R/184/Lapsus/IV/1999 dated April 7, 1999 concerning the Clashes between
Pro Integration and Anti Integration People in Liquica Regency;
ii. R/02/X/1999/Lapsus dated October 11, 1999 concerning the Chronology of
Incident on Gunshoot Contact between Interfet and TNI (Indonesian Army) and
POLRI (Indonesian Police) Troops;
iii. Suggestion from Pangdam IX/Udayana as Pangkoops TNI Nusara dated
September 7, 1999;
iv. STR/551/1999 dated September 5, 1999;
v. STR/553/1999 dated September 6, 1999;
vi. Letter of Order (Surat Perintah) from TNI Commander No.:
Prin/1798/P/IX/1999 dated September 7, 1999;
vii. STR/253/1999 dated April 13, 1999;
viii. STR/550/1999 dated August 31, 1999;
ix. STR/558/1999 dated September 3, 1999;
x. Letter of Order No.: Prin-/1000/VII/1998 dated July 30, 1998;
xi. TR/614/1999 dated June 17, 1999;
xii. STR/172/1999 dated May 5, 1999;
xiii. STR/223/1999 dated March 1999;
xiv. Examination (not visum et repertum) provided by 2nd Lieutenant CKM dr.
Maksum Pendelima;
xv. Situation Report No.: R/ / Lapsit/IX/1999;
xvi. Situation Report No.: R/ /IX/1999/Lapsit;
xvii. Special Report No.: R/ /Lapsus/IX/1999 dated September 22, 1999;
xviii. TR/909/P/1999 dated September 7, 1999;
which then in this judgment are called as evidence materials, which are
mentioned as evidence materials or evidence letters presented before the
court according to the Panel of Judges are returned to Ad Hoc Prosecuting
Attorney to be used as evidences in other case.
Considering, that based on the whole considerations, the Panel of Judges has
declared that the Defendant's action has been legally and convincingly
proven as charged by Prosecuting Attorney in the First and Second
Indictment.
Considering, that since the Defendant's action has been declared proven,
then the Panel of Judges will sentence the Defendant on the degree of the
Defendant's crime.
Considering, that before the Panel of Judges decides on the kinds of
appropriate and fair punishment on the Defendant will be considered first
the extenuating and the aggravating factors:
Extenuating factors:
1. The Defendant has been very cooperative during the trial and helped to
assist the trial.
The Defendant's attitude to fight for the Integration of East Timor with
Indonesia should be honored for his loyalty to Indonesia
2. The attack on Manuel Viagas Carrascalao's house should not be blamed on
him thoroughly, because other parties have been involved
Aggravating factors:
1. The image of Indonesian struggle for East Timor to remain integrated with
Indonesia has been tainted due to this incident therefore it has caused the
image of Indonesia to plunge before the international world.
2. Many civilians have been dead because of the resentment of the Defendant
and his subordinates which have been channeled thorugh inappropriate manner
so that has violated the Human Rights of common people.
3. The Defendant's action with all of its excesses have received
international condemnation about the bad image of Human Rights in Indonesia
5 (sic!). The Defendant has been sentenced before. That in his position as a
PPI Deputy Commander and Aitarak Commandant, the Defendant should take any
responsibility of any violent acts that occurs in East Timor territory
committed by his subordinates and members of PPI and Aitarak
Considering, that since the Defendant has been found guilty, he should pay
all court expenses.
Considering, that on the sentence given to the Defendant, which will be
included completely in the court order later, according to the Panel of
Judges it is fair enough, and wish that it can be lesson to learn for the
Defendant and will not repeat it again in the future.
Considering, Law No.8/1981, Law No. 39/1999, Law No.26/2000 and Universal
Declaration on Human Rights and other Rules related to this case.
TO JUDGE
- To Declare that the Defendant: EURICO GUTERRES, has legally and
convincingly been proven of committing crime as charged in the first and
second indictment, which is:
"A GRAVE HUMAN RIGHTS VIOLATION IN THE FORM OF CRIMES AGAINST HUMANITY"
- To Sentence the Defendant with 15 years imprisonment
- To state that the evidence materials as mentioned in the list of evidence
materials and evidence letters presented before the court to be returned to
the Ad Prosecuting Attorney to be used in other case;
- To Sentence the Defendant to pay court fee of Rp.5000,-. (five thousand
rupiahs);
Decided on Monday, November 25, 2002 in the Deliberation Meeting of the
Panel of Judges of the Central Jakarta Ad Hod Court consisted of: HERMAN
HELLER HUTAPEA, SH, (as a Presiding Judge), ROKI PANJAITAN, SH., PROF. DR.
KOMARIAH EMONG SAPARDJAJA, SH., KELELONG BUKIT, SH., RUDI M. RIZKI,
SH.,LL.M., the panel of judges, the Judgment has declared on WEDNESDAY,
November 27, 2002 in the Court open to the public by the Presiding Judge
accompanied by the panel of judges and assisted by acting clerks NY. WIDIA
ASTUTI, SH and AGASUWARGA attended by MUHAMAD YUSUF, SH,LL,M., the Ad Hoc
Prosecuting Attorney, DIN NURDINAH, SH., the Acting Ad Hoc Prosecuting
Attorney, of the General Attorney Office of the Republic of Indonesia, the
Defendant and the Defendant's Lawyer Team
Panel of Judges Presiding Judge
DR. KOMARIAH EMONG S.,SH., HERMAN HELLER HUTAPEA, SH
ROKI PANJAITAN, SH.
RUDI M. RIZKI, SH.,LL.M.
KALELONG BUKIT,SH.,MA
Acting Clerks
Ny. WIDIA ASTUTI, SH.
AGASUWARGA |
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