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Name: ENDAR PRIYANTO.
Place of Birth: Solo, Central Java.
Age/Date of Birth: 45 years/ May 10, 1957
Sex: Male
Nationality: Indonesia
Religion: Islam
Residence: Komplek Hankam, Jalan Salak B-69 Cibubur
Jakarta Timur
Occupation: TNI-AD member, former Dandim 1627/Dili
Rank:: Lieutenant Colonel
Education: AKABRI.
The Accused was not detained;
The Accused was represented by a Legal Counsel team.
I. Colonel Chk.AB Setiawan, SH.MBA., Navy Lieut.Col. (Kot) Bambang Soedarko,
SH, Navy Lieut.Col.(KH) MD. Purnomo, SH., Navy Lieut.Col.(K) Nurhasirah M.
SH, Lieut.Col.Chk. Apang Sopandi, SH, Lieut.Col.Chk Djodi Supanto, SH, Navy
Major (KH) M. Adnan Madjid, SH. MH., Major Sus S. Damanik, SH, Navy Major (KH)
Sigit Wahyu W, SH. MH., Major Chk. Simamora, SH, Major Sus Bambang Eko
Suharyanto, SH, Major Chk. Subagio Santoso, SH, Major Chk. Widarto, SH,
Captain Chk. Z. Effendi SH, Captain Sus Bambang Widarto, SH. MH., Captain
Chk. Subagiyo, SH., Navy Captain (KH) Hari Aji Subranto, SH, Captain Sus
Daswanto, SH, First Lieut. Chk. (K) Marhalo, SH, under Special Power of
Attorney dated June 21, 2002.
II. RM. Rahyono Abikusno, SH.LLM, Agus Takabobir, SH, Moh. Assegaf, SH, Yan
Juanda Saputra, SH, Ida Ayu Sri Utami Wijayanti, SH, Hari Muh. Djoko Prakoso,
SH, Joao Meco, SH, under Special Power of Attorney dated June 24, 2002.
The Ad Hoc Human Rights Tribunal,
Having read:
1. The Legal Brief and Attachments on the case of serious human rights
violations by the Accused: ENDAR PRIYANTO.
2. Decision of the Head of the Human Rights Court of Justice of Central
Jakarta No: 05/Pid.HAM/Ad-Hoc/2002/PN.Jkt.Pst., dated June 3, 2002,
concerning the Impaneling of Justices to examine and try the case;
3. Decision of the Panel's Chief Justice No: 05/Pid.HAM/Ad-Hoc/2002/PN.Jkt.Pst.,
dated June 3, 2002, concerning Determination of Trial Date;
Having heard:
1. The reading of the Charging Document by the Public Prosecutor, File Case
No: 07/HAM/Timor.Timur/05/2002 dated May 31, 2002;
2. The reading of Preliminary Verdict by the Panel of Justices No. 05/Pid.HAM/Ad.Hoc/2002/PN.Jkt.Pst,
that essentially states that it is within the jurisdiction of the Central
Jakarta Ad Hoc Human Rights Tribunal to try the case against the Accused and
that the Ad Hoc District Court's Charging Document dated May 31, 2002 Np.07/Ham/Tim.Tim
meets requirements and the Public Prosecutor's charge is therefore
acceptable
3. The reading of the Charges (Requisitoir) by the Ad Hoc District Court
dated November 11, 2002, that essentially demands the Panel of Justices for
the Central Jakarta Ad Hoc Human Rights Tribunal to rule:
1. To find the Accused:
Full Name: Lieutenant Colonel Inf. Endar Priyanto
Place of Birth: Solo - Central Java
Age/ Date of Birth: 45 years / May 10, 1957
Sex: Male
Nationality: Indonesia
Address: Komplek Hankam Jalan Salak B-69
Cibubur Jakarta Timur.
Religion: Islam
Occupation: Member of TNI-AD, Former DANDIM
1627/Dili
Rank: Lieut.Col.
Education: AKABRI.
Lawfully and convincingly, guilty of the criminal offense of: "SERIOUS HUMAN
RIGHTS VIOLATIONS IN THE FORM OF CRIMES AGAINST HUMANITY", as regulated and
liable under:
First Charge: Article 42 paragraph (1) items a and b jis article 7 item b,
article 9 item a, article 42 paragraph (3), article 37 Law No.26 year 2000
concerning Human Rights Tribunals.
Second Charge: Article 42 paragraph (1) items a and b jis article 7 item b,
article 9 item h, article 42 paragraph (3), article 40 Law No.26 year 2000
concerning Human Rights Tribunals.
2. To sentence the Accused to 10 (ten) years imprisonment.
3. To declare the evidence:
Senpi, towels, ammunition and Photostat documents may be used as evidence in
other cases.
4. To order the Accused to pay court costs amounting to Rp.7,000 (seven
thousand rupiah).
4. The reading of the personal plea of the Accused Endar Priyanto that
essentially appealed to the Panel of Justices to take justice into the
fullest consideration in reaching a judgment.
5. The reading of the plea by the Accused's Legal Counsel Team that
essentially presents the view that the Accused Endar Priyanto is not proven
guilty as charged in the First Charge and the Second Charge; and therefore
the Legal CounselTeam requests the Panel of Justices to rule:
5.1 That the Accused is lawfully and convincingly proved not guilty of the
criminal charges leveled against him by the Ad Hoc Public Prosecutor.
5.2 That therefore the Accused should be freed from all charges leveled
against him by the Ad Hoc Public Prosecutor.
5.3 To restore the honor, respect and dignity of the Accused to their
original state prior to this Case.
5.4 To charge all case costs to the State.
6. The Public Prosecutor's Replication (Replik) that essentially maintains
the original charges that were read and delivered to the Ad Hoc Panel of
Justices on Monday, November 11, 2002.
7. The Rejoinder (Duplik) by the Accused's Legal Counsel that essentially
retains the original defense as read and delivered to the Ad Hoc Panel of
Justices on Monday, November 11, 2002.
In considering that according to the Ad Hoc Public Prosecutor's Charging
Document Case File No.: 07/Ham/Timor-Timur (05) 2002 dated May 31, 2002, the
Accused is charged with the following serious human rights violations:
FIRST:
The Accused Endar Priyanto in his capacity as Military District Commander
1627/Dili under SKEP-KASAD No. SKEP/504/X/1997 dated October 1, 1997
concerning Terminations and Appointments in TNI-AD Positions, on April 17,
1999 or at another time in April 1999 at the residence of Leandro Isac in
Dili and at the residence of Manuel Viegas Carrascalao on Jalan Antonio De
Carvalho No.13 Dili, East Timor or at another location within Dili City,
East Timor, in which it is within the jurisdiction of the Ad Hoc Human
Rights Tribunal at the Central Jakarta District Court to examine and rule on
the case of the Accused under article 2 KEPPRES No.96 tear 2001 dated August
1, 2002 concerning amendments to KEPPRES No.53 year 2001 concerning
Establishment of an Ad Hoc Human Rights Tribunal at the Central Jakarta
District Court, the accused in his capacity as Military Commander or as
someone effectively acting as Military Commander may be held accountable for
criminal acts within the jurisdiction of the Human Rights Tribunal,
perpetrated by the troops under his effective command and control, or under
his effective power and control and the criminal acts resulted from the lack
of proper control over his troops, when committing serious human rights
violations that include crimes against humanity that were one of the acts
perpetrated as part of a widespread or systematic attack in which he was
aware that the attack was aimed directly at the civilian population in the
form of killings, namely:
The Accused as Military Commander whose duties among others were to foster
security in the region and to provide assistance and coordination to
elements responsible for security, was aware or under the circumstances
should have been aware that his troops were in the act of, or had recently
committed the act of committing serious human rights violations but the
Accused did not take appropriate and necessary actions within his power to
prevent or halt these violations or to surrender the offenders to the
relevant authorities for examination, investigation and prosecution.
These acts the Accused committed in the following manner:
On Saturday April 17, 1999 a PAM Swakarsa Inauguration or a Grand Roll-Call
for the Inauguration of PAM Swakarsa was held on the grounds of the Office
of the East Timor Governor, with Joao Da Silva Tavares as Inspector of
Ceremonies in his capacity as Commander of Pasukan Pejuang Integrasi (PPI)
and Eurico Gutteres as Commander of Ceremonies in his capacity as Deputy
Commander of Pasukan Pejuang Integrasi (PPI), and attended among others by
East Timor Governor Abilio Jose Osario Soares. At the ceremony Eurico
Gutterres delivered an address that was broadcast live over the radio and
contained the following words of threat:
- All CNRT leaders should be eliminated.
- The family of Manuel Viegas Carrascalao specifically should be eliminated.
- Kill the CNRT leaders.
- Pro independence people should be killed.
- Kill Manuel Viegas Carrascalao.
- The Carrascalao family should be killed.
- Kill Leandro Isac, David Dias Ximenes, Manuel Viegas Carrascalao.
Following the Grand Roll-Call for the Inauguration of PAM Swakarsa some PPI
troops left the ceremony grounds and formed a procession using four-wheeled
vehicles and several two (2) wheeled vehicles or motorcycles, and from the
rear of Leandro Isac's house carried out a direct attack by shooting at the
people inside the witness' house, who were comprised of pro-independence
refugees, destroyed the entire content of the house, and then went on to
attack the house of Manuel Viegas Carrascalao located in Jalan Antonio De
Carvalho No.13 Dili, East Timor, assaulting the occupants inside the house
of Manuel Viegas Carrascalao who were pro-independence refugees numbering
some 136 people from Tauriseai, Alas, Ainaro, Maubara, Liquisa, who had been
threatened and terrorized by a pro-integration group comprised of AITARAK (DURI)
and Besi Merah Putih (BMP) members.
The Accused as Military Commander at the time was aware, or under the
circumstances was aware that there would be disorder and violence among the
differing East Timor population on Integration with the Nation and Union
State of the Republic of Indonesia in the City of Dili, in particular as the
Referendum approached, the Accused was responsible among others for security
in his jurisdiction, but did not take maximum preventive measures to
anticipate the attacks on refugees who were inside the house of witness
Manuel Viagas Carrascalao. As a result of the Accused's talks 12 persons
were killed among whom was the son of witness Manuel Viegas Carrascalao who
was familiarly called Manelito.
The 12 persons killed in the attack were:
1. Mario Manuel Carrascalao (Manelito), interred in Dili.
2. Raul Dos Santos Cancela, interred in Maubara.
3. Alfonso Ribeiro. (ditto)
4. Rafael Da Silva. (ditto)
5. Alberto Dos Santos. (ditto)
6. Joao Dos Santos (ditto)
7. Antonino Do Soares (ditto)
8. Crisanto Dos Santos. (ditto)
9. Cesar Dos Santos. (ditto)
10. Agustino B.X.Lay. (ditto)
11. Eduardo De Jesus. (ditto)
12. Januario Pereira. (ditto)
Among the offenders there were some TNI men, namely: 1. Jose Matheus, 2.
Theofilo da Silva, 3. Antonio Beskau, 4. Antonio Gomes, 5. Miquel, 6. Duarte,
7. Carlos Amaral, 8. Baltizar, who were dressed as militia, that is, wearing
Black Jackets and helmets with red and white headbands, and along with a
number of pro-integration fighters carried out the attack using homemade
firearms, machetes, swords and bows and arrows.
These TNI members were recognized by witness Victor dos Santos, witness
Alfredo Sanches, witness Florindo de Jesus and witness Santiago dos Santos.
The Accused's actions as detailed above are liable under article 42
paragraph (1) items a and b jis article 7 item b, article 9 item a, article
42 paragraph (3), article 37 Law No.26 year 2000 concerning Human Rights
Tribunals.
SECOND:
The Accused Endar Priyanto in his capacity as Military District Commander
1627/Dili under SKEP-KASAD No. SKEP/504/X/1997 dated October 1, 1997
concerning Terminations and Appointments in TNI-AD Positions, on April 17,
1999 or at another time in April 1999 at the residence of Leandro Isac in
Dili and at the residence of Manuel Viegas Carrascalao on Jalan Antonio De
Carvalho No.13 Dili, East Timor or at another location within Dili City,
East Timor, in which it is within the jurisdiction of the Ad Hoc Human
Rights Tribunal at the Central Jakarta District Court to examine and rule on
the case of the Accused under article 2 KEPPRES No.96 tear 2001 dated August
1, 2002 concerning amendments to KEPPRES No.53 year 2001 concerning
Establishment of an Ad Hoc Human Rights Tribunal at the Central Jakarta
District Court, the accused in his capacity as Military Commander or as
someone effectively acting as Military Commander may be held accountable for
criminal acts carried out within the jurisdiction of the Human Rights
Tribunal, by troops under his effective command and control or under his
effective power and control and these criminal acts resulted from the lack
of proper control over his troops, when committing serious human rights
violations that include crimes against humanity that were one of the acts
perpetrated as part of a widespread or systematic attack in which he was
aware that the attack was aimed directly at the civilian population in the
form of ASSAULT, namely:
The Accused as Military Commander whose duties among others were to foster
security in the region and to provide assistance and coordination to
elements responsible for security, was aware or under the circumstances
should have been aware that his troops were in the act of, or had recently
committed the act of committing serious human rights violations but the
Accused did not take appropriate and necessary actions within his power to
prevent or halt these violations or to surrender the offenders to the
relevant authorities for examination, investigation and prosecution.
This act above was committed in the following manner:
On Saturday April 17, 1999 a PAM Swakarsa Inauguration or a Grand Roll-Call
for the Inauguration of PAM Swakarsa was held on the grounds of the Office
of the East Timor Governor, with Joao Da Silva Tavares as Inspector of
Ceremonies in his capacity as Commander of Pasukan Pejuang Integrasi (PPI)
and Eurico Gutteres as Commander of Ceremonies in his capacity as Deputy
Commander of Pasukan Pejuang Integrasi (PPI), and attended among others by
East Timor Governor Abilio Jose Osario Soares. At the ceremony Eurico
Gutterres delivered an address that was broadcast live over the radio and
contained the following words of threat:
- All CNRT leaders should be eliminated.
- The family of Manuel Viegas Carrascalao specifically should be eliminated.
- Kill the CNRT leaders.
- Pro independence people should be killed.
- Kill Manuel Viegas Carrascalao.
- The Carrascalao family should be killed.
- Kill Leandro Isac, David Dias Ximenes, Manuel Viegas Carrascalao.
Following the Grand Roll-Call for the Inauguration of PAM Swakarsa some PPI
troops left the ceremony grounds and formed a procession using four-wheeled
vehicles and several two (2) wheeled vehicles or motorcycles, and from the
rear of Leandro Isaac's house carried out a direct attack by shooting at the
people inside the witness' house, who were comprised of pro-independence
refugees, destroyed the entire content of the house, and then went on to
attack the house of Manuel Viegas Carrascalao located in Jalan Antonio De
Carvalho No.13 Dili, East Timor, assaulting the occupants inside the house
of Manuel Viegas Carrascalao who were pro-independence refugees numbering
some 136 people from Tauriseai, Alas, Ainaro, Maubara, Liquisa, who had been
threatened and terrorized by a pro-integration group comprised of AITARAK (DURI)
and Besi Merah Putih (BMP) members.
The Accused as Military Commander at the time was aware, or under the
circumstances was aware that there would be disorder and violence among the
differing East Timor population on Integration with the Nation and Union
State of the Republic of Indonesia in the City of Dili, in particular as the
Referendum approached, the Accused was responsible among others for security
in his jurisdiction, but did not take maximum preventive measures to
anticipate the attacks on refugees who were inside the house of witness
Manuel Viegas Carrascalao.
As a result of the Accused's negligence 4 (four) victims sustained injuries,
as follows:
1. Witness Victor dos Santos (Apin), sustained wounds to his left middle
finger.
2. Witness Alfredo Sanches, sustained stab wounds to his left upper back and
his toes.
3. Witness Florindo de Jesus sustained hacking wounds to his left and right
arms, his right ear was shot and hacked.
4. Miki, sustained hack wounds.
Among the offenders there were some TNI men, namely: 1. Jose Matheus, 2.
Theofilo da Silva, 3. Antonio Beskau, 4. Antonio Gomes, 5. Miquel, 6. Duarte,
7. Carlos Amaral, 8. Baltizar, who armed with automatic weapons carried out
the assault along with a number of pro-integration fighters using homemade
firearms, machetes, swords and bows and arrows.
These TNI members were recognized by witness Victor dos Santos, witness
Alfredo Sanches, witness Florindo de Jesus and witness Santiago dos Santos.
The Accused's actions as detailed above are liable under article 42
paragraph (1) items a and b jis article 7 item b, article 9 item a, article
42 paragraph (3), article 37 Law No.26 year 2000 concerning Human Rights
Tribunals.
In considering, whereas in order to condense this ruling the Panel will not
include the testimony of all witnesses as detailed in full in the Court
Proceedings Deposition (BAP), but the Panel will select and excerpt
testimony relevant to the charges made by the Ad Hoc Public Prosecutor as
follows:
Testimony of witness: MANUEL VIEGAS CARRASCALAO
Under oath, the witness essentially testified as follows:
- Witness knew of the Accused but was not acquainted personally with him and
is not related to him by blood or by marriage.
- On April 17, 1999, when witness was on his way to the Airport to fetch his
wife, he received a telephone call from his son Mario Manuel informing him
that his house was under attack by breaking the door down.
- At the time a PAM Swakarsa ceremony was being held at the East Timor
Governor's Office that was attended by TNI, POLRI and PEMDA officials and
was being broadcast on radio and one of the speakers was Eurico Guterres who
stated that he would kill Manuel Viegas Carrascalao.
- After receiving the call from his son, witness attempted to return home
but was held back by his companions, then witness headed to the house of the
Dili Korem Commander to seek protection but his request was not granted.
- Witness then went to Bishop Belo's house and informed him the occupants of
his house had been killed, including his son Manelito.
- Subsequently witness was brought by Police to East Timor Polda but Polda
would come under attack and so witness was brought to Jakarta. But on his
third day at Polda witness was able to visit his house to see the situation
and witness saw that his son's body was covered with stab and gunshot wounds,
and that his head was nearly decapitated.
- The attackers of witness' house were Policemen and TNI soldiers dressed in
civilian clothes and witness knew this from the people who were eyewitnesses
during the attack on the house.
- Witness' house was occupied by his children, his children's schoolmates,
refugees from outlying regions and these occupants were unarmed.
- As a result of the attack on witness' house, 11 victims died and the house
and grounds were splattered with blood.
- 4 days later witness' son was interred and at the time there was no
medical autopsy.
- At the time a conflict was taking place between the Pro Autonomy group and
the Pro Independence group.
- The Accused stated that there were various errors in witness' testimony,
among them:
1. That he had provided training from security provision to destruction.
2. That he had ordered the attack.
3. The number of fatalities.
4. That people from outlying areas were in great fear, whereas everything
was running normally.
Testimony of witness: SUDJARWO
Under oath, the witness essentially testified as follows:
- Witness was acquainted with the Accused and is not related to him by blood
or by marriage.
- Witness was Dandim 1627 Dili replacing the Accused following a transfer of
duties from the Accused on August 9, 1999.
- At the time of the transfer of duties, a staff meeting took place, and
therefore the Accused came to know of the attack on the house of Manuel
Viegas Carrascalao on April 17, 1999 from written reports and according to
the reports as a result of the incident one of the fatalities was the son of
Manuel Viegas Carrascalao.
- That witness did not know the number of fatalities and to witness'
knowledge the incident occurred as a result of the conflict between Pro
Autonomy and Pro Independence groups.
- That the attack of April 17, 1999 according to the Accused, did not
involve members of Kodim 1627 Dili who at the time numbered 380 personnel.
- That under Protap the responsibility of Kodim in security provision was to
provide back-up for Police, and TNI were to be mobilized only at the request
of the local Police addressed to Kodim, which request would be forwarded to
the Danrem, and only at the order of the Danrem would assistance be provided.
- That there was also a Battalion but it was not under Kodim, whereas
witness knew nothing of the PAM Swakarsa and PPI (Pasukan Pejuang Integrasi)
meeting.
- If any Kodim member was sighted during the April 17, 1999 attack, the
person concerned was not on duty under Kodim authority.
- Witness' testimony was corroborated in full by the Accused.
Testimony of witness: JOSE AFFAT AM.
Under oath, the witness essentially testified as follows:
- Witness knew of the Accused but was not acquainted personally with him and
is not related to him by blood or by marriage.
- Witness heard of the grand roll-call on the grounds of the Office of the
Governor of East Timor on April 17, 1999.
- The roll-call was held by the Pro-Integration group and after the
roll-call they formed a vehicle convoy to dive around the city of Dili and
then clasehed with the Pro Independence group at the residence of Manuel
Viegas Carrascalao.
- At the time of the incident witness as Camat of Maubara was in Maubara and
did not attend the grand roll-call as he did not receive an invitation, nor
did he provide financial assistance to residents of Maubara who attended the
roll-call.
- That as a result of the clash witness took part in the burial of 2 bodies
brought from Dili to Maubara, but witness did not know the identities of the
bodies buried.
- The Dandim of Liquisa at the time was Asep Kuswani, whereas the Dandim of
Dili was Endar Priyanto (the Accused) as informed by the Ad Hoc Public
Prosecutor.
- Witness did not know the precise cause of death for the two dead persons
as at the time of the burial the bodies were in coffins.
- Those who attended the roll-call were civilians from Maubara and there
were no TNI men from Maubara.
- Witness did not recognize the names read out in the Charging Document such
as: Jose Matius, Tia Dasilva, Miquel, Duarte, except for Carlos Amaral
because the Dan Ramil of Maubara was on leave at the time.
- PAM Swakarsa was formed under a Decree by the Governor of East Timor and
in Maubara there was no Governor's Decree and so there was no PAM Swakarsa
in Maubara.
- In Maubara there were wanra and kamra, but no PAM Swakarsa.
- As there was no PAM Swakarsa in Maubara, no TNI member assisted and
provided arms to PAM Swakarsa.
- At the time the status in East Timor was one of civilian order.
- The Accused confirmed all of witness' testimony.
Testimony of witness: DOMINGGUS M. DORES SOARES, SH.Msi.
Under oath, the witness essentially testified as follows:
- Witness was acquainted with the Accused but is not related to him by blood
or by marriage.
- Witness acted as Bupati of Dili from 1994 to 1999 and as Bupati witness
was informed that a grand roll-call would be held on April 17, 1999 on the
grounds of the Governor's Office in Dili.
- At the time of the roll-call witness was in attendance and the Governor
was scheduled to deliver a speech on the inauguration of PAM Swakarsa, but
as the Governor was not present the IRUP was Joano Tavares who delivered a
speech enjoining the community to work properly, while the Accused was not
present.
- PAM Swakarsa was formed to ensure the success of the referendum and its
members received an incentive amounting to Rp.150,000 from the respective
Level II PEMDAs.
- After Joano Tavares delivered his speech, witness returned to his home and
Erico Gueteres did not deliver a speech at the ceremony.
- Witness heard on the radio that a clash had taken place at the house of
Manuel Viegas Carrascalao.
- A check revealed that the clash involved Liquisa residents and there was
no connection with the PAM Swakarsa inauguration, the incident was purely a
criminal case.
- 12 fatalities resulted from the clash.
- The Accused made no objection to witness' testimony.
Testimony of witness: AGUSTINUS B. PANGARIBUAN
Before the court after being sworn in accordance with his faith, witness
provided the following testimony:
- Witness was acquainted with the Accused when the Accused acted as Dandim
of Dili.
- From November 1996 to September 1999 witness was assigned to Dili Polres.
- On April 17, 1999, witness was in Denpasar, Bali to follow the PTIK
entrance examination from April 10, 1999 to April 30, 1999.
- Witness heard of the incident in the home of Manuel Viegas Carrascalao
over television.
- Witness had not known that there were refugees at the home of Manuel
Viegas Carrascalao.
- Witness had never heard of RI Government's policy to carry out an attack
to kill and assault at the home of Manuel Viegas Carrascalao.
- Witness had heard that Manuel Viegas Carrascalao was a CNRT figure.
- Witness had never heard that TNI and Police personnel were involved in the
attack on the house of Manuel Viegas Carrascalao.
- Witness heard that as a result of the clash that took place in the house
of Manuel Viegas Carrascalao, there were casualties, but witness did not
known their number.
- While witness was taking the PTIK test, all of witness' duties were taken
over by the Waka Polres.
- The investigation into the attack on the house of Manuel Viegas
Carrascalao was conducted by Polda.
- The Accused made no objection to witness' testimony and accepted it.
Testimony of witness: JOAO DA SILVA TAVARES
Before the court after being sworn in accordance with his faith, witness
provided the following testimony:
- Witness knew the Accused was former Dandim of Dili.
- On April 17, 1999 witness was in Maliana and was verbally invited by
Eurico Guiteres to act as Inspector of Ceremonies at the grand roll-call for
the inauguration of PAM Swakarsa on the grounds of the Governor's office in
Dili.
- The event began at 09.00 local time (WITA) and after ½ hour's appearance
witness went up the podium to act as Inspector of ceremonies.
- The grand roll-call was attended by approximately 5,000 people and witness
delivered an address at the grand roll-call.
- Subsequently when the ceremony was over, lunch was held at the rear of the
Governor's office and following that witness immediately returned home to
Maliana.
- When the ceremony was over, the participants of the grand roll-call held a
procession around the town.
- After returning home, witness heard that there had been a clash that
resulted in the death of Manuel Viegas Carrascalao's son, bur witness did
not know who killed him.
- The distance from the Governor's office where the event was held to the
Kodim headquarters was approximately 100 meters and to the house of Manuel
Viegas Carrascalao approximately 300 meters.
- There was no policy from Kodim to kill the occupants at the house of
Manuel Viegas Carrascalao.
- There was no news of TNI personnel involved in the attack on the residence
of Manuel Viegas Carrascalao.
- The people of East Timor regarded witness as the commander of PPI.
- At the group's every activity, witness received no orders from TNI/POLRI
officials.
- Some of the grand roll-call's participants carried their own home-made
weapons.
The Accused did not object to witness' testimony.
Testimony of witness: ALFREDO SANCHES.
Before the court after being sworn in accordance with his faith, witness
provided the following testimony:
- Witness was not acquainted with the Accused.
- Witness had been examined by the Attorney General's Office and he is
keeping to the testimony he provided in the Deposition (BAP) that he signed.
- Whereas at the time of the April 17, 1999 incident at the home of Manuel
Viegas Carrascalao witness was in the house.
- Witness had been staying in the house from February 1999 to April 17,
1999.
- Witness was staying in the house of Manuel Viegas Carrascalao to take
refuge out of fear of the Militia.
- On April 17, 1999 following the event at the Governor's Office, the
Militia attacked Manuel Viegas Carrascalao's house.
- At the time witness was standing at the rear of the house just outside the
kitchen door.
- The Militias shot at the door and then shot into the house.
- Witness ran to the rear of the house with his companions Florindo de Jesus
and Eduardo De Jesus and into a bamboo grove and climbed up some bamboo
trees.
- Then a Militia man named Armendo cried out: "There are three men up in the
bamboo trees", witness was shot at by Fransisco Alberto and witness fell and
stood on a wall.
- The man named Armendo than pulled down witness, witness fell and then was
stabbed by Mateus.
- The victims who died in the attack were 11 residents of Maubara and 1 son
of Manuel Viegas Carrascalao, while there were 2 wounded, Florindo De Jesus
and witness himself.
- Witness' companions in the house of Manuel Viegas Carrascalao numbered
some 100 people.
- These people were in Manuel Viegas Carrascalao's house seeking refuge from
Maubara.
- The number of militia and TNI men who attacked was over 100.
- The TNI men were in their uniforms, while the militia men wore civilian
clothes and headbands.
- Among the TNI men witness recognized Theophilo, Baltirar, Antonio Baskau.
- Witness recognized them as they were members of Maubara Koramil.
Testimony of witness: FLORINDO DE JESUS.
Before the court after being sworn, witness provided the following testimony:
- Witness was not acquainted with the Accused.
- On the day of the attack of April 17, 1999 on the house of Manuel Viegas
Carrascalao, witness was at the house.
- Witness was at the house of Manuel Viegas Carrascalao when the incident
occurred at 12:00 for 2 to 3 hours.
- The attackers were comprised of militia and TNI men from Maubara Koramil,
carrying homemade weapons, machetes, and army-issue weapons (organik).
- The TNI men from Maubara Koramil taking part in the attack included
Antonius Beskau, Beltiriat, Duarte, Jose Mateus, Tefile and Carlos.
- Witness recognized the 6 TNI men as witness himself was from Maubere.
- At the time of the attack, the TNI men were not in uniform.
- The attackers used a yellow truck and rammed the truck into the gate of
Manuel Viegas Carrascalao's house.
- After being treated in the hospital, witness heard that the number of dead
from the house of Manuel Viegas Carrascalao was 12.
- Witness was treated at Wira Husada TNI Army Hospital.
The Accused rejected all of witness' testimony.
Testimony of witness: ABILIO OSORIO SOARES.
Given under oath in a Deposition (BAP), read out in court and essentially
related the following:
- Witness was Governor of East Timor carrying out Government, Development
and Community duties vertically and in coordination with related agencies,
in general all central agencies in the region.
- The East Timor issue became complicated following intervention by the
International world and the engineered award of the Nobel Prize to Ramos
Horta.
- The Governor, in carrying out Government in his region is constantly in
coordination with relevant agencies, in particular the muspida elements.
- Witness instructed the Bupatis to form PAM Swakarsa with the goal of
preventing inter group physical clashes throughout East Timor.
- The name PAM Swakarsa itself was provided by Level II Pemda suscha s
Antrak, BMP, Maludi Abblai, Madomi, and others assisting Level II Pemda to
provide security and law and order among the community in addition to
existing security apparatus.
- The incidents occurring before and after the referendum and the attack on
the house of Manuel Viegas Carrascalao, witness heard because this house
happened to be located next to witness' relative's house.
- The announcement of the referendum that was won by the Pro-Independence
group was contrived by UNAMET.
- Witness resided in Dili until September 9, 1999, however after the
situation was deemed impossible, on September 9, 1999 witness departed for
Mekana, and thereon to Kupang.
The Accused made no objection to witness' testimony that was read out.
Testimony of witness: Drs. BASILIO DIAS ARAUJO, MA.
Given under oath in a Deposition (BAP), read out in court and essentially
related the following:
- On April 17, 1999 witness attended Danrem Tono Suratman at his residence
to receive a foreign dignitary, the Ambassador of Ireland and witness acted
as interpreter.
- At approximately 12:00 Manuel Viegas Carrascalao and his daughter arrived
at the Makorem.
- Manuel Viegas Carrascalao had come to see Danrem Tono Suratman to request
arms, but the Danrem rejected this request by Manuel Viegas Carrascalao, who
immediately returned home.
- Witness did not know about the PAM Swakarsa grand roll-call, as the
activity was a Level II Pemda Dili activity. Moreover witness was kept busy
with his interpreter activities.
- Witness did not know who perpetrated the attacks nor did he know about the
casualties incurred, and all witness knew was that the problem was in the
hands of Dili Polres.
- Although Witness was a Level I Pemda employee, he was not well informed
about PAM Swakarsa.
Testimony of Witness: JUANICO DASIVA.
Given under oath in a Deposition (BAP), read out in court and essentially
related the following:
- Witness knew of the incident of April 17, 1999, namely the PAM Swakarsa
roll-call ceremony held on the grounds of the East Timor Governor from 08.00
to 11.00, when witness along with some companions were passing by the house
of Manuel Viegas Carrascalao and heard people crying for help, and the truck
witness was riding stopped, and witness and his companions headed toward
Manuel Viegas Carrascalao's house and a fight broke out inside the house of
Manuel Viegas Carrascalao, and witness and his companions helped one Besi
Merah Putih man who had been shot but they did not know who had fired the
shot. They also helped 4 other men from Liquisa to return home.
- Witness was a member of PAM Swakarsa who received a monthly honorarium of
Rp.150,000 from the Veterimo Village Head.
- Witness had not received any kind of training.
- Witness owned a homemade firearm that witness had assembled himself from
plumbing pipes. He owned a homemade firearm because he was often intimidated
by the CNRT group.
Testimony of witness: SUPARNO.
Given under oath in a Deposition (BAP), read out in court and essentially
related the following:
- Witness was assigned to East Timor in 1997 as Dancuk Mo.81 Ki Ban Yonif
744/B6 in Dili and witness reported to the Dan Ramil.
- Witness did not know of the attack on the house of Manuel Viegas
Carrascalao, as witness was in Maubara which is approximately 40 kilometers
away from Dili..
- Did Pak Amir have no information about his men who were involved in Dili.
Testimony of witness: Dr A.S.S. TAMBUNAN, SH.
Given under oath in a Deposition (BAP), read out in court and essentially
related the following:
1. Witness described the responsibilities of a commander in TNI, in which
the Military Doctrine applies, that is, a Commander is responsible for what
his subordinates do or do not do. However this Doctrine does not apply to
legal responsibilities.
2. Whereas violations of the law are the personal responsibility of the
offender.
3. Whereas if such violations occur in the course of carrying out duties
under one's unit, resulting in destruction to the property of the populace,
and resulting in casualties (wounded, dead), responsibility lies with the
State (article 50 KUHP).
4. Whereas military responsibility differs from judicial responsibility,
both civil and criminal.
5. Whereas in military life, verbal orders are on the same footing as
written orders, if the orders are simple, not complex, and easily understood,
and if the orders are intended to achieve a military objective then
responsibility for the implementation of the orders lies with the State.
In considering, that legal counsel have brought forward witnesses in
mitigation of the charges against the Accused (a charge) as follows
respectively:
Testimony of witness: EDUARDO DE YESUS.
Witness testified before the court under oath, and essentially related the
following:
- Witness was not acquainted with the Accused, was not related to him and
was not connected to him through work.
- Whereas Witness was at the home of Manuel Viegas Carrascalao from April
12, 1999 to April 17, 1999 as witness was being held hostage by Manuel
Viegas Carrascalao's men.
- Whereas on April 12, 1999 when witness was walking along the perimeters of
Maubara village, a Kijang vehicle approached witness and from the vehicle 4
men descended, one of which witness recognized as a former village head, who
called out to witness, and when witness approached he was held and placed in
the Kijang car and brought to the house of Manuel Viegas Carrascalao.
- Whereas at the time witness was threatened with the words: don't speak out,
follow me. If you speak out, I will cut you up.
- Whereas in the car 2 people sat in the front seat and 5 in the back (including
witness) with witness sitting in the middle hemmed in between two people to
his left and right, and no one spoke.
- Whereas after witness descended from the car he was asked, "Why are you
associating with the red and white people," as he was pushed into a yard
covered with a tarpaulin tent and inside this place there were approximately
50 people.
- Whereas after he was inside witness came face to face with Dominggus
Valestila who lived in the same sub-district as witness, and witness was
also acquainted with him.
- Whereas while witness was in the house of Manuel Viegas Carrascalao
witness did not see either Florindo de Jesus or Alfredo de Sanches, although
witness was in Manuel Viegas Carrascalao's house for about five days.
- Whereas on April 17, 1999, at approximately 12.00 wita, witness heard
Dominggus Palestela cry out the words, "Comta Gede" which means "we are here"
and witness then saw a truck parked at the front, and not long afterward
witness heard shouts from inside with the words "attack the people getting
down from the truck".
- Whereas when witness looked out witness saw that Dominggus Palestela had
fallen and his left arm was cut, and witness also saw many people fighting
and walking here and there and then witness attempted to flee outside, and
saw Victor Philipe get down from the truck and witness followed Victor
Philipe.
- Whereas the clash took place for 10 to 15 minutes.
- Whereas Manuel Viegas Carrascalao's house had only 1 big door and 1 small
door.
- Whereas witness did not see Policemen or TNI men arrive at the house of
Manuel Viegas Carrascalao both during and after the incident.
- Whereas when witness was staying at the house of Manuel Viegas Carrascalao
he was given corn to eat once a day and was not allowed to leave the house.
- Whereas witness saw that the people in Manuel Viegas Carrascalao's house
carried blunt weapons, swords and knives.
- Whereas the first to launch the attack were the people inside the house of
Manuel Viegas Carrascalao.
- Whereas witness did not see women and children inside the house of Manuel
Viegas Carrascalao, only male adults.
- Whereas witness did not see when Manuel Viegas Carrascalao's men opened
the gate, but all at once the men from inside the house ran out and attacked
the people getting down from the truck, and witness seized the opportunity
to flee.
- Whereas the victims in the attack were the people who were inside the
house of Manuel Viegas Carrascalao.
- Whereas witness saw that the attackers carried knives and bows and arrows.
- Whereas witness did not know that there were fatalities as a result of the
attack on the house of Manuel Viegas Carrascalao who were buried in Maubara.
- Whereas witness did not see Maria Viegas Carrascalao.
- Whereas witness was not acquainted with Santiago Das Santos.
- Whereas in Maubara (witness' village) the only one named Eduardo De Yesus
was witness himself, and none other.
- Whereas witness was acquainted with the Ramil Commander in Maubara, who
was not at the site of the incident when the incident took place.
The Accused did not object to witness' testimony, and the Accused accepted
witness' testimony.
Testimony of witness: DOMINGGUS BONDIA.
Witness testified before the court under oath, and essentially testified as
follows:
1. Witness was not acquainted with the Accused, and has no family
relationship with the Accused.
2. Whereas witness was acquainted with Florindo de Jesus as he came from the
same village as witness.
3. Whereas some time in January 1999 witness' brother who was named Balenti
was killed by Florindo De Jesus by the river in Maubara.
4. Whereas when witness heard Balenti's cry for help, witness immediately
headed in the direction of the cry, witness saw that Balenti had fallen and
was covered in blood and lying close to Balenti was a machete and not far a
club, witness also saw that about five meters away Florindo de Yesus was
being carried away by Alberto in a bloodied condition, and on Florindo De
Jesus' shoulders there were cuts and his arms were hurt.
5. Whereas witness at the time did not go after Florindo, as witness
thoughts were directed at Balenti, and witness called for help to Mariani
and the two finally carried Balenti back home.
6. Whereas witness' family reported Balenti's death to Police, and Police
searched for Florindo but he was not found, and witness never saw Florindo
again in his village.
7. Whereas on April 17, 1999 witness was not at the house of Manuel Viegas
Carrascalao but in the mountains in Maubara.
8. Witness heard that a clash had taken place in the house of Manuel Viegas
Carrascalao after witness had come down from the mountains and witness also
heard that there had been some deaths but witness did not know their number
and their identities.
The Accused accepted and corroborated witness' testimony.
Testimony of witness: BOA VENTURA.
Witness testified before the court under oath, and essentially related the
following:
1. Whereas witness was not acquainted with the Accused and had no family
relations with him.
2. Whereas witness had once lived on Gugleur Maubara Village in Kabupaten
Liquisa.
3. Whereas witness was acquainted with Florindo De Jesus, as they had been
schoolmates at Elementary School and witness was also acquainted with
Alfredo Sanches who was also a former Elementary School mate.
4. Whereas witness on April 17, 1999 was at the house of Manuel Viegas
Carrascalao in Dili. Witness was there because he had been captured by
Manuel Viegas Carrascalao's men at night at witness' home. Witness had been
accosted by a men armed with sharp weapons and was then seized.
5. Whereas after witness was seized and tied up witness was then brought on
foot to Guisu Village, Lisadita Village, to Paulara, to Bau Bantur Village,
Psenda, and then on to Liquisa. At night from Liquisa they went by truck to
Dili to a house which turned out to be that of Manuel Viegas Carrascalao.
6. Whereas witness had been seized by CNRT under the suspicion of being a
spy, and upon reaching Manuel Viegas Carrascalao's house witness was put in
the yard and there witness met Dominggus Palistra. The yard was covered with
tarpaulin and tin sheets, and was guarded by Manuel's men who were armed
with knives, swords, and at night the guards carried manufactured firearms.
7. At around 12.00 hours wita witness saw a truck move slowly past the front
of Manuel's house. Witness recognized the truck's driver, a Maubara resident
of Chinese descent named Ateka, and witness then cried out in the Maumara
dialect and his cries were heard by the men in the truck. The truck
eventually stopped and most of the men inside the truck got down. But
suddenly from inside Manuel's house there were cries of, "they are here!
Attack." The men then rushed out from the house carrying sharp weapons and
clubs and attacked the men who had come down from the truck.
8. Whereas witness saw a fellow hostage in Manuel's house, namely Dominggus
Palistra who had been hacked by Manuel's men and had collapsed.
9. Whereas at that sight witness finally decided to flee through the gates
by slipping past the fighting people, and at the crossroads witness got onto
a public transport and returned to Maubara.
10. Whereas 3 (three) days later witness heard that 2 bodies had been buried
in Maubara who were vistims in Manuel's house, but witness did not know
their identities.
11. Whereas when witness was in Manuel's house from April 12, 1999 to April
17, 1999, he did not see Florindo De Jesus and Alfredo Sanches in the house
of Mario Viegas Carrascalao.
The Accused accepted and confirmed witness' testimony.
Testimony of witness: VICTOR PHILIPE.
Witness testified before the court under oath, and essentially related the
following:
Whereas witness was not acquainted with the Accused and was not related by
family to him.
Whereas witness was acquainted with Florendo de Yesus as they had gone to
the same elementary school in Maubara, witness did not now Alfredo Sanches.
Whereas to witness' knowledge, Florendo De Yesus had been in a fight with
Balentil and Balentil had died, and since then witness had not seen Florendo
De Jesus and reportedly in his fight with Balentil Florendo had been wounded
in the shoulders.
Whereas on April 17, 1999 at around 09.930 AM witness left for Dili along
with 2 of his companions, Antonio and Alberto, to hear the explanation on
the offer of autonomy made by the Indonesian Government, witness left in a
truck with a group from Same who were similarly headed to Dili, in the truck
there were some 40 people but he did not see that they were armed.
Whereas upon arrival in Dili, the truck was parked in the scouts' field, and
witness and the group got down and walked toward the Governor's grounds that
was located at a distance of about 200 meters and there witness saw that
some 10,000 people were gathered in these grounds, and all eyes were
directed ahead, to the person giving the address.
Whereas witness asked Antonio, "Who is speaking up ahead?" and was answered
"Pak Eurico", part of which witness heard, "let the people of Timor unite,
and remain in peace to accept autonomy".
At around 12:00 when the ceremony was over witness and the group headed to
the scouts' field to look for a truck from Maubara that had left earlier in
the morning and finally witness got onto the truck and returned to Maubara.
Whereas on the trip home to Maubara the truck had to turn around and just
before a house witness and all the rest heard cries of help coming from
someone in the yard in the Maubara dialect, the Toto gede dialect. Hearing
the cries the truck stopped and most of the passengers got down and headed
to the gate of the house but suddenly from inside there were yells and
several people rushed out from inside carrying sharp weapons such as
machetes, spears and so forth.
Whereas, a fight eventually broke out between the people from Maubara
together with people who happened to be on their way home from the
Governor's field, and the people from inside Manuel's house.
Whereas, some 10 minutes after the clash had broken out a Police car arrived
sounding its horn, and hearing the siren witness and his companions ran in
the direction of the truck and returned to Maubara.
Whereas, witness joined in the clash armed with rocks collected from the
vicinity of the scene of the incident.
Whereas no truck had rammed down the gate of Manuel's house in the clash,
rather the gate was opened from inside by those rushing out.
Whereas upon arriving in Maubere witness only found out that the house where
the clash had taken place was the residence of Manuel Viegas Carrascalao and
witness heard victims had fallen in the clash.
Whereas some 3 days after the incident 2 (two) bodies were buried in Maubara,
and witness took part in the burial along with the community and the Camat
as well as Polsek and Koramil men.
Whereas the burial was conducted under Catholic rites led by Patekis, and
prayers were said and a cross set up.
The Accused accepted and confirmed witness' testimony.
Testimony of witness: SALMAN MANAFE.
Witness testified before the court under oath, and essentially related the
following:
Whereas witness was acquainted with the Accused in his capacity as Dandim of
Dili, and at the time witness was acting as Kasdim there, and he was not
related by family to the Accused.
Whereas on April 17, 1999, witness as Kasdim of Dili, at approximately 11.50
was informed through a Police Handy Talky that a mass clash was taking place
at the house of Manuel Viegas Carrascalao, and witness reported this to the
Dandim who was at Comoro airport to greet the dignitaries from Ireland, and
the Dandim then instructed witness to make an immediate check of the scene
of the incident.
Whereas witness along with 10 other men from Kodim, all clad in PDL
camouflage uniforms as at the time they were on alert and armed with PHH
anti riot clubs, riding in a Garrison car headed to the scene of the
incident, and when they arrived many policemen were already there, and
Police had set up a Police Line. The clash was already over, and witness
then reported to the most senior Policeman there and declared his "readiness
to assist". Witness and his men then proceeded to help survivors and the
wounded onto Police cars.
Whereas at the time witness witnessed 1 fatality at the house of Manuel
Viegas Carrascalao resulting from a machete wound, then witness took the
initiative to call the Garrison to dispatch a hearse, and not long
afterwards the car arrived, and the victim was loaded onto the car by
witness' men and several policemen to be brought to the hospital.
Whereas when witness was at the scene of the incident, some 15 minutes later
the Accused as Dandim arrived and witness immediately reported that several
casualties had been brought to hospital, both the dead and the wounded.
Whereas the Defendant looked around inside the back yard and into the house
of Manuel Viegas Carrascalao. Soon after the Danrem arrived at the scene of
the incident, and the Danrem and the Accused then left for the hospital and
before they departed they instructed witness to remain at the scene of the
incident to assist Police and at around 13.30 wita witness and his men
returned to Kodim.
Whereas at around 16.30 wita Level I Depsos in East Timor requested
assistance for 5 coffins from Kodim/the Sub Garrison through witness, and
then on the orders of the Accused 5 coffins were provided from the
Garrison's supply.
Whereas Dili Kodim also functioned as a Sub Garrison in which one duty was
to handle fallen soldiers, and so there was a supply of coffins in the Dili
Sub Garrison, although the coffins were designated for fallen soldiers, if
there were requests for assistance coffins could be provided with the
approval of the Dandim.
Whereas at the time there was no ambulance at the scene of the incident and
there were no ICRC personnel helping victims at the scene of the incident.
Whereas since 07.00 the Accused had issued orders to monitor the PAM
Sawakarsa inauguration event at the Governor's Office. Witness tasked
Sergeant Elizario who was assigned to surveillance of the area around the
Governor's Office and the port to monitor the proceedings of the roll-call
and to anticipate any action during the event or after the event that might
disrupt security and order.
Whereas witness did not hear the speeches made during the roll-call that
were aired on the radio as there were no radio transistors at Kodim, only
TVs and Handy Talkies.
Whereas since 07.00 there were orders from the Accused that men not assigned
outside duty be kept on standby at Makodim.
Whereas according to reports on the ground the roll-call proceeded normally
or evenly.
Whereas witness had not heard of any plans to attack the house of Manuel
Viegas Carrascalao following the roll-call and was not aware that after the
roll-call a procession would take place which route would pass by the house
of Manuel Viegas Carrascalao.
Whereas according to information the masses clashing at Manuel Viegas
Carrascalao's house consisted of people returning from the roll-call at the
Governor's Office and people inside the house of Manuel Viegas Carrascalao.
Whereas no TNI or Police personnel were involved in the mass conflict,
either in uniform or in plain clothes.
Whereas witness was not acquainted with all Maubara Koramil members as it
was located some distance away and it was not under the jurisdiction of Dili
Kodim.
Whereas Dili Kodim oversaw four Koramils and 50 Babinsas.
Whereas to witness' knowledge there was one fatality resulting from the mass
conflict at the scene of the incident, subsequently there was a request for
5 coffins, which meant 5 more deaths and several wounded.
The Accused accepted and confirmed witness' testimony.
Testimony of witness: ELIZARIO DA LUX.
Witness testified before the court under oath, and essentially related the
following:
Whereas witness was acquainted with the Accused in his capacity as Dandim.
He was not related by family to the Accused.
Whereas witness was Bintara Intel at Kodim Dili under the Intelligence
Section Officer (Pasi Intel).
Whereas on April 17, 1999 at around 07.00 witness and other Dandim men were
at the morning Makodim roll-call. Later following the morning roll-call
witness headed to his surveillance area comprising the area around the
Governor's office, and the port sector and coastline.
Whereas in the vicinity of the PAM Swakarsa roll-call at the Governor's
Office a troop of Policemen were already stationed to monitor the roll-call,
at various points outside the grounds. The roll-call participants numbered
some 6,000 who filled the grounds of the Governor's Office. To witness'
knowledge no participant was carrying weapons.
Whereas in carrying out his surveillance of the area witness was not armed.
Witness reported to the Kasdim that the roll-call had commenced and that it
was proceeding smoothly or evenly, and that it had ended uneventfully.
Whereas witness was not aware that there would be a procession to parade
around the town after the ceremony, and witness did not know of any plan to
attack the house of Manuel Viegas Carrascalao.
Whereas witness did not clearly hear the body of the speech delivered by
Eurico Guterres at the Governor's Office during the PAM Swakarsa roll-call.
Whereas at around 11.45 witness heard over the Handy Talky that a mass clash
had taken place at the house of Manuel Viegas Carrascalao and that Kadim had
then ordered witness over the Handy Talky to immediately check the scene of
the incident.
Whereas upon arriving at the scene of the incident witness saw that the
Kasdim was already present with his men in PDL camouflage uniforms carrying
clubs and truncheons, and riot troops (PHH) were helping victims and witness
was several Policemen.
Whereas some 25 meters away witness saw 1 victim lying on the porch of
Manuel Viegas Carrascalao's house and that Police had already set up a
Police Line.
Whereas at the time witness spotted an ambulance parked at the scene of the
incident and then witness heard a request over his Handy Talky for the
hearse from the Sub Garrison and later the hearse arrived, and the victim
lying on Manuel Viegas Carrascalao's porch was carried to the hearse and
brought to the hospital.
Whereas 10 minutes later Taslim ordered witness to return to Makodim and to
make sure that Kodim personnel were not to go out anywhere but to remain on
standby at Makodim.
Whereas witness had never heard of the involvement of TNI personnel in the
mass conflict at the house of Manuel Viegas Carrascalao.
Whereas witness was not acquainted with personnel from Maubara Koramil.
Whereas since the option was offered the Dandim had banned all native TNI
personnel from carrying arms for 3 months prior to April 17, 1999.
Whereas there was no connection between native TNI personnel and the
organizations PPI, PAM Swakarsa, Aitarak or any other similar organization.
Whereas only 1 intelligence officer in plainclothes was at Dili port after
moving from the Governor's Office on April 17, 1999.
The Accused accepted and confirmed witness' testimony.
Testimony of witness: ABILIO LOPEZ.
Witness testified before the court under oath, and essentially related the
following:
Whereas witness was acquainted with the Accused in Jakarta and witness was
not related by family with the Accused.
Whereas in 1999 witness was assigned as Bintara Village Counsellor at
Maubara Koramil, Kabupaten Liquisa.
Whereas during witness' term as babinsa in 1999, the Ramil was Peltu Carlos
Amaral and his deputy was Sergeant Major Suparno.
Whereas on April 17, 1999, the Koramil commander at Maubara was on leave in
Semarang, Java, from March to April 18, 1999, as his wife was Javanese.
Whereas Maubara Koramil personnel numbered 15 men, 14 of whom were native
East Timorese, the exception being Suparno who was Javanese.
Whereas on April 17, 1999, none of the Maubara Koramil men left Koramil
headquarters, as on that day the Dandim had issued an order through Serma
Suparno that all men at the Koramil were to be on standby and not to leave
their quarters.
Whereas witness did not recognize the names listed in the Charging Document,
except for Carlos Amaral and Antonio Gomes, while the rest he did not know
and had never heard their names.
Whereas witness was acquainted with Praka Antonio Gomes, who was formerly a
Maubara Koramil man but in February 1999 was transferred to Dili Kodim.
Whereas on April 20, 1999, two bodies were dispatched to Dili to be buried
in Maubara and Serma Suparno was present for the burial.
Whereas witness had not heard that TNI Koramil men from Maubara were
involved in the mass conflict in Dili.
The Accused accepted and confirmed witness' testimony.
In considering, that the testimony of absent witnesses were also read in
Court that essentially related the following:
WITNESSES' TESTIMONIES:
1. WITNESS LEANDRO ISAAC
- Whereas witness was coordinator of the Political Commission of CNRT and
Manuel Carrascalao was a member of the CNRT National Political Commmission;
- Whereas on April 17, 1999 witness' house was attacked first by the Militia
at around 10.00 East Timor Time, and when witness contacted Manuel
Carrascalao's house his son reported that their house was also under attack
by the Militia;
- Whereas at the time Manuel Carrascalao's house came under attack, witness
was at the hospital, and did not witness the attack;
- Whereas the people attacking Manuel Carrascalao's house were Militia men
from Barisan Merah Putih (BMP) and Aitarak;
- Whereas when witness' house came under attack witness did not report the
incident to the security agencies;
- Whereas witness knew of the attack on Manuel Carrascalao's house from
Manuel Carrascalao's son named Manelito;
- Whereas the motive for the attack on Manuel Carrascalao's house was
because Manuel Carrascalao was a Pro Independence figure and a CNRT member
and always reported the situation in Dili abroad;
2. VICTOR dos SANTOS al. AFIN:
- Whereas on April 17 witness was at the house of Manuel Carrascalao;
- Whereas at around 12.00 East Timor Time Militia men from BMP and Aitarak
arrived on truck and were about to enter Manuel Carrascalau's house but were
driven away by Manelito (Manuel Carrascalau's son), but then they entered
the house again and surrounded it. At the time witness was hiding in the
kitchen and militia men attacked witness with samurai swords, machetes, and
home-made guns, witness was attacked and shot, and witness pretended to be
dead. When police and Brimob arrived the militia men had disbanded. Witness
then attempted to flee by climbing a wall but was detained by Brimob, and
witness was then ordered to ride in the ambulance together with Alfredo and
Florindo to be brought to Wirahusada Hospital;
- Whereas among the militia men who attacked Manuel Carrascalau's house
witness recognized a few;
- Whereas witness did not see any security forces/ TNI men in uniform behind
the militia men, what witness saw were big and tall men with short-cropped
hair, but they did not carry arms;
- Whereas at the time of the incident witness did not see the Accused at the
scene of the incident;
3. WITNESS JULIO de SOUSA
- Whereas on April 17, 1999 witness was in Maubara;
- Whereas witness did not see the attack on Manuel Carrascalau's house,
witness only of it from militias who had left Maubara for the ceremony and
who on their return related the incident of the attack on Manuel
Carrascalau's house;
- Whereas witness was aware that many people from Maubara had sought refuge
in Manuel Carrascalau's house;
- Whereas witness was informed by the military in Dili that there had been
12 victims of the attack, 11 were buried in Lebukoe, Maubara Liquica and one
in Dili, and the burials took place two days after the attack, and the
burials were facilitated by TNI and Militia in camouflage uniform and fully
armed.
4. WITNESS DOMINGOS BOAVIDA
- Whereas on April 17, 1999 witness was in his house in Maubara. Two days
later the Deputy Danramil (Parno) came to witness' house bringing a list of
names of the dead from Manuel Carrascalau's house, numbering 11 victims;
- Whereas the Deputy Danramil asked witness to accompany him to the burial
place to identify the bodies, as one of witness' children had gone to Dili;
- Whereas at the burial place in Lebukoe witness did not see the body of his
son but he did see the body of his brother's son named Raul, and at the time
witness saw there were 11 bodies;
- Whereas attending the burial were relatives of the victims, guarded by
soldiers, and the burial took place from 6 in the evening to 10 at night.
5. SANTIAGO SANTOS
- Whereas on April 17, 1999 witness was in a small house behind Manuel
Carrascalau's house;
- Whereas witness was in Manuel Carrascalau's house to seek refuge, for
witness had been pressured by the militia to join their group;
- Whereas on April 17, 1999 witness heard a live broadcast on the radio
about the grand roll-call in front of the East Timor Governor's Office led
by the Governor of East Timor and attended by the Danrem, Kapolda and
Militia Leader Joao Tavaresand and Deputy Militia Leader Eurico Gueteres,
and followed by all militia members. After the ceremony witness heard Eurico
Gueteres giving the command to kill all CNRT leaders, in particular the
family of Manuel Carrascalau. Not long after the militia arrived and gunfire
from the home-made firearms was heard and then the militia attacked all the
people inside the house with machetes and home-made firearms;
- Whereas witness did not see security troops in uniform attacking Manuel
Carrascalau's house, but witness saw that they had secured the place after
the incident;
- Whereas there were 12 dead victims, 11 of whom were buried in Maubara and
1 in Dili.
6. MARIA CHRISTIANA CARRASCALAU
- Whereas on April 17, 1999, from 12.00 to 13.00 East Timor Time witness was
not at her home;
- Whereas witness had left her house for Comoro Airport to fetch her
stepmother;
- Whereas on April 17, 1999 witness heard over a live broadcast on the radio
of the ceremony flying the red and white flag and the blood oath made on the
grounds of the East Timor Governor's Office;
- Whereas witness heard the voice of Eurico Gueteres delivering a speech to
kill the Carrascalau family;
- Whereas witness left with her father, but on the way witness' father
received a telephone call from witness' brother (Manelito) saying that their
house had been surrounded by Militia;
- Whereas witness and witness' father then headed to the house of the Danrem
(Tono Suratman), and witness' father reported the attack on witness' house
and witness' father asked for arms to protect himself but this was not
granted;
- Whereas witness then left for Bishop Belo's house, and at the time there
was gunfire all around, and there were many vehicles carrying shouting
militias and witness heard reports that witness' house had been attacked,
witness did not know who the attackers were, but according to the reports
the attackers were from the Militia;
- Whereas there were 12 victims of the attack;
7. WITNESS ABILIO YOSE ORARIO SOARES
- Whereas on April 17, 1999 witness was in Dili and at the time witness held
the office of East Timor Governor;
- Whereas the duties of governor included the vertical implementation of
government, development and community related tasks in coordination with
relevant agencies that were generally all central agencies in the region
assisting the governor in the implementation of his regional tasks.
- Whereas the east Timor issue had become complicated following the
intervention of the international community. The climax came with the
engineered award of the Nobel Prize to Ramos Horta. Then there was the
demand for independence and the granting of special autonomy. At the time
witness had requested against holding a referendum and witness appealed for
reconciliation, and a meeting was then held in Australia attended by Aposeti,
UDT and Fretilin. And at the time witness instructed all Bupatis to form a
Pam Swakarsa with the purpose of forestalling physical clashes between the
opposing groups in all Level II Regions. Throughout the referendum Pemda
formed 2 organizations, FPDK (Forum Persatuan Demokrasi dan Keadilan) and
BRTT (Barisan Rakyat Timor Timur) aimed at amassing all East Timorese down
to the village level. However in practice fraudulent acts were committed by
Unamet and that was admitted by Unamet itself. Then the populace began to
seek refuge;
- Whereas in undertaking regional government coordination is required with
the relevant agencies, in particular Muspida elements (Commander, Police and
Legal) and any issues that arise are discussed in this forum;
- Witness as Governor of East Timor Province was not assigned duties and
responsibilities relating to the Tri Partite agreement;
- Whereas prior to the Referendum Level II Pemdas officially formed PAM
Swakarsa organizations under a Governor's Decree. These were led by the
respective bupatis and were tasked with assisting Level II Pemda to provide
security and order among the populace and PAM Swakarsa only hela training
for PBB;
- Existing task forces were only those from the center, namely the Inter
Departmental Task Force headed by the Foreign Affairs Department and the
Komnas Ham Task Force;
- Whereas witness knew of the attack on Manuel Carrascalau's house after the
referendum was held, as witness' house was adjacent to this house;
- Whereas the announcement of the outcome of the referendum that was won by
the pro independence group was engineered by Unamet;
- The reason for forming Pam Swakarsa was the security disturbance occurring
everywhere, the concept was to prepare personnel to secure the ballots
during the referendum, there was no instruction from central government to
form Pam swakarsa. Fubds for this purpose was derived from APBD and all Pam
swakarsa activities were always reported, but there was no direction from
central government.
8. Drs. BASILIO DIAS ARAUJO, MA
- In the situation preceding the referendum, witness witnessed the
excavation of a mass grave comprising four pits by the International red
Cross. The murder was carried out by Fretilin leaders and in 1999 witness
received a report from Michael Babo, an Ermera figure, on the killings of 11
pro integration people that were orchestrated by pastor Domingo Soares;
- Throughout the referendum witness heard numerous complaints of improbity
on the part of Unamet and several NGOs monitoring the referendum, and all
these complaints were reported to KPS and Unamet;
- Following the referendum, on September 2, 1999 these violations were
reported to the three judges from Unamet's Electoral Commission, and after
receiving the report the three judges admitted that there had been improbity
and Judge Krigler then reprimanded Mr Jef Fisher as the referendum's
responsible person and warned him not to repeat the mistakes;
- On April 17, 1999 witness attended on the Danrem, Tono Suratman, at his
residence to receive some foreign dignitaries, as at the time witness was
acting as interpreter;
- At 12.00 East Timor Time Manuel Carrascalau and his daughter arrived to
see the Danrem to request arms but this was refused as Manuel Carrascalao
was a CNRT member, and witness then returned home to Delta Comoro;
- Throughout the entire time witness was with the Danrem, the Danrem never
issued an order as he was not accompanied by his staff and he did not carry
any communication device at the meeting;
- Witness did not know about the inauguration ceremony for Pam Swakarsa held
on April 17, 1999 on the grounds of the East Timor Governor's Office;
- Witness did not know who carried out the attack on Manuel Carrascalau's
house.
9. JOAO SILVA TAVARES
- Whereas on April 17, 1999, witness acted as inspector of ceremonies on the
grounds of the east Timor Governor's office as he had been invited by Eurico
Gueteres, and the event was attended by the East Timor Governor and the
entire officials of Level I Muspida. As inspector of ceremonies witness
directed participants to build up nationalism and patriotism for the nation
and state. The second speaker was Eurico Gueteres, who spoke of upholding
discipline, and fidelity toward the state and the nation. The ceremony was
followed by a common meal at the East Timor Governor's Office Assembly Hall.
Participants to the roll-call consisted of some 1,500 people, from the
Aitarak group under the leadership of Eurico Gueteres and the BMP group
under the leadership of Manuel. After arriving in Atambua witness heard from
bus passengers he met on the road that an attack had been made on Manuel
Carrascalau's house, and one of the resulting victims was the son of Manuel
Carrascalau (Manelito);
- According to information that witness obtained, when militias formed a
procession around the town after the ceremony, and passed by Manuel
Carrascalau's house, there were men and women who had been abducted and held
in Manuel Carrascalau's house and these people ran out and shouted and the
people in the procession got down from their trucks and entered Manuel
Carrascalau's house and began attacking;
- Whereas witness was commander of the Halilintar (Thunderbolt) group, but
that was only a name, and there were 124 Halilintar members, and witness
himself trained them. And we had weapons left behind by the Porto who
departed East Timor, we had 62 firearms and we handed over all of these to
the human rights worker assigned by the UN and the General from Untaet;
- Witness did not know to what end the roll-call on April 17, 1999 was held,
witness was only invited by Eurico Gueteres and told to act as inspector of
ceremonies.
10. WITNESS SUPARNO
- Whereas witness was assigned to East Timor from 1979 and before, during
and after the referendum was held in East Timor witness' duites were routine
administrative duties for koramil;
- Whereas on April 19, 1999, witness was stationed in Maubara, as the
distance between Maubara and Dili is about 40 kilometers, witness did not
know of the attack on Manuel Carrascalau's house;
- Whereas witness never received a direct order from the Dandim;
- Witness had heard of a Pam Swakarsa in Kec. Maubara, but witness did not
know the name of the group or its leader, and to witness' knowledge Pam
Swakarsa was tasked to assist in creating security in the respective
neighborhoods or to keep watch in neighborhood security posts;
- Whereas witness had never had any contact with the Pam Swakarsa group;
- Whereas Maubara Koramil 03 had taken in a territorial troop that had been
under BKO numbering sime 20 men, witness did not recall what unit they came
from, witness only knew they came from Sumatra, and were there to assist in
Koramil territorial duties;
- Whereas in the Maubara Koramil area there was no Wanra, there was only
Ratih (Trained Populace) who were dressed like Hansip, and numbered some 20
men.
11. Dr.A.S.S. TAMBUNAN, SH
- Whereas a military doctrine applies in the duties of a TNI commander, in
that the commander is responsible for the actions and non-actions of the
members of the unit he heads. The doctrine relates to military
responsibilities and encompasses strength building and employing unit
strength. A commander may not fault his men if a military operation/mission/task
undertaken by his men fails, and he is responsible for the safety of the
unit and his men and he is responsible for the maintenance of discipline and
order in his unit;
- This military doctrine does not cover legal responsibility. If frequent
violations of the law occur, then the maintenance of discipline in the unit
he heads has failed or does not meet standards, therefore military
responsibility differs from juridical responsibility, whether civil or
criminal;
- Whereas the undertaking of a task may be under the orders of the superior
in charge, but may also refer to official regulations. In the military world
orders may be given in writing or verbally, and both have equal strength.
This is usually the case for simple orders;
- Whereas under the article in Government Regulation No.24 Year 1949 on
Military Discipline, the military superior giving the order is responsible
for the purpose and undertaking of the order he gives. Responsibility here
refers to military responsibility and not juridical responsibility, whether
civil, or criminal;
- Whereas under article 5 paragraph 4 of the Military Discipline Regulation,
a superior is required to supervise all of his subordinates' work. Thus a
military superior is required to supervise the undertaking of an order given
to subordinates, and conversely, a military subordinate receiving an order
from his superior is required to report the result of the order's
undertaking to his superior, as well as any other relevant matters;
- If tasks are not carried out in accordance with the order given to a
subordinate, there may be two reasons for this, that the subordinate may not
have understood the purpose and objective of the order, or that the
subordinate had indeed miscarried the order;
- Whereas military responsibility is intrinsic in the superior giving an
order. However juridical responsibility hinges on the situation, if the
order given by a superior is wrongly construed by the subordinate receiving
the order, then juridical responsibility lies with the subordinate. But the
superior giving the order is still subject to military responsibility;
- Whereas the superior giving the order is subject to military
responsibility but juridically the subordinate is responsible, meaning that
juridically the actions of the subordinate in terms of his function/position
negate his superior's responsibility unless the actions of the subordinate
violate the law although they are in accordance with the order or
instruction from the superior, however this is will depend on the case;
- Whereas the case in East Timor occurred under normal conditions or a state
of peril, a state of peril being construed as provided for under Law No.23/PRP/1959
or under article 58 KUHPM.
12. CARLOS AMARAL
Whereas witness was acquainted with the Accused in a superior-subordinate
relationship, but is not related by family;
Whereas witness acted as Danramil of Maubara from 1997 until the time that
TNI departed East Timor;
Whereas on April 17, 1999, witness was traveling from Denpasar to Kupang
after being on leave in Semarang, Central Java.
Whereas witness arrived in Kupang on April 20, 1999 and stayed in Kupang for
some time before departing Kupang on April 25, 1999 and arriving in Maubara
on April 28, 1999.
Whereas before departing on leave, witness and his wife reported to Liquisa
Dandim and to the Danrem as his leave was taking him out of East Timor.
Whereas before leaving Maubara Koramil witness handed over his duties and
the supervision of Maubara Koramil and its men to Sergeant Major Suparno as
Bintara, for Maubara Koramil Administrative and Internal Matters.
Whereas on his return witness received a report from Serma Suparno that on
April 17, 1999, a mass conflict had taken place at the house of Manuel
Viegas Carrascalao in Dili and that 2 victims had died in the incident. Then
on April 20, 1999 they were buried in the public cemetery in Maubara.
Whereas witness received a report from Serma Suparno that on April 17, 1999
no member of the Koramil had left the Maubara Koramil hedquarters, all had
been on stand-by as ordered by Liquisa Dandim.
Whereas to witness knowledge no member of Maubara Koramil was involved in
the mass conflict at the house of Manuel Viegas Carrascalao on April 17,
1999.
The Accused accepted and confirmed witness' testimony.
In considering, that the court also heard the testimony of the Accused that
essentially related the following:
Whereas the Accused was Dandim of Dili from September 1997 to August 9,
1999, and was then replaced by Letkol.Inf. Sudjarwo.
Whereas on April 17, 1999 at approximately 9.00 wita the Accused had gone to
Comoro Airport for the security of the Irish dignitaries, as in addition to
the Accused's duties as Garrison commander he was also tasked with indirect
security.
Whereas the task at the Airport was more important in anticipating security
for VIP guests, in light of the current situation and past experience, and
the threats from Pro Independence groups, while Kodim duties were put in the
hands of the Kasdim.
On April 16, 1999 in the evening the Accused was informed that a roll-call
for the inauguration of PAM Swakarsa would be held on the Governor's grounds,
on April 17, 1999.
Whereas the permit for holding the roll-call was the jurisdiction of police,
including all its consequences and excesses, while Kodim was prepared to
assist upon request.
Whereas the main task of the Accused as Dandim was to provide protection
against all threats to the sovereignty of the State and provision of geo,
demo and komses for space to endeavor.
Whereas throughout the roll-call, the Accused maintained radio contact to
monitor the situation, although the Accused was not invited to the PAM
Swakarsa roll-call ceremony.
Whereas at 11.30 the Accused received a report from the Kasdim via HT
informing him that a mass conflict had broken out at the house of Manuel
Viegas Carrascalao, and the Accused then ordered the Kasdim to mobilize the
troops in Kodim on standby to head to the scene of the incident. The Accused
then reported to the Dan Rem before heading to the scene of the incident
himself, while the accused could not reach the Kapolres.
Whereas at the time Kodim was in a state of alert, meaning that all troops
were to be on standby at Kodim in full gear to anticipate any situation.
Whereas at the scene of the incident the Accused observed that a Police Line
had been erected, with many policemen present led by a Captain, while the
Kasdim and several Kodim men were also there.
Whereas the Kasdim reported that there were fatalities and wounded who had
been brought to Wirayudha hospital, and that the violence had been brought
into control by the security apparatus, and several Kodim men were providing
help to victims.
Whereas there were 5 fatalities resulting from the conflict as Level II
Depsos had requested 5 coffins.
Whereas the Accused had received no information about a mass attack on the
house of Manuel Viegas Carrascalao, either preceding or following the
roll-call, for since the option, the Bupati was occupied with activities in
preparation for the referendum, and hence there had been no more muspida
meetings.
Whereas no TNI personnel under the effective control of the Accused, or any
other TNI personnel, were observed in the conflict in Manuel Viegas
Carrascalao's house.
Whereas on April 21, 1999, the Accused had endorsed and signed a peace
agreement between the Pro Integration and the Pro Independence groups.
In considering, that although the BAP refers to a list of evidence, in court
the Ad Hoc Public Prosecutor has not exhibited this evidence despite
requests by the Panel of Justices.
In considering, that having linked the testimonies of witnesses and the
Accused, a number of facts of law have emerged:
1. Whereas the Accused Endar Priyanto held the office of Military District
1627 Dili Commander under Skep Kasad No.Skep/504/X/1997 dated October 1,
1997.
2. Whereas Kodim 1627 Dili oversaw 4 Koramils with 380 TNI personnel.
3. Whereas Kodim 1627 operations area included Kabupaten Dili.
4. Whereas on April 17, 1999, at approximately 09.00 - 11.00 wita a grand
roll-call ceremony was held to inaugurate PAM Swakarsa in front of the East
Timor Governor's Office.
5. Whereas at the close of the ceremony the BMP (Besi Merah Putih) group
formed a procession and returned to Maubara following a route that passed by
the house of Manuel Viegas Carrascalao.
6. Whereas BMP was a Pro Integration group and a Pro Independence group were
inside the house of Manuel Viegas Carrascalao.
7. Whereas when the BMP group passed by the house of Manuel Viegas
Carrascalao they heard cries for help from Maubara residents who had been
presumed missing.
8. Whereas in the attempt by BMP to provide help a mass conflict broke out
between the two groups.
9. Whereas the mass conflict resulted in a number of dead and wounded.
In considering, whereas by the facts of law uncovered in court in relation
to the Ad Hoc Public Prosecutor's charges, is the Accused proved guilty of
serious human rights violations as charged by the Ad Hoc Public Prosecutor.
In considering, whereas under the Ad Hoc Public Prosecutor's Charging
Document the charges are set forth cumulatively as follows:
FIRST
Violation of article 42 paragraph (1) items a and b jis article 7 item b,
article 9 item a, article 42 paragraph (3), article 37 Law No.26 year 2000
concerning Human Rights Tribunals.
SECOND.
Violation of article 42 paragraph (1) items a and b jis article 7 item b,
article 9 item h, article 42 paragraph (3), article 40 Law No.26 year 2000
concerning Human Rights Tribunals.
In considering, whereas in order to determine if the Accused should be
convicted or not under the Ad Hoc Public Prosecutor's charging document, the
Panel of Justices shall refer to the provisions for conviction (Strat
Voralissetzungen).
The science of criminal law recognizes 2 doctrines:
1. The monistic doctrine adopted among others by Prof.Mr.D.Simons,
Prof.Mr.G.A. Van Hammer.
2. The monodualistic doctrine pioneered by Herman Kantorwiez and in
Indonesia was introduced by Prof. Mulyatno, Prof.Ruslan Saleh and Prof. Andi
Zaenal Abidin.
In considering, whereas the monodualistic doctrine first distinguishes the
elements of the offense (actus reus) from the elements of the offender (mens
rea), the elements of the offense (actus reus) comprise:
1. Fitting the formulas of the Law.
2. Violation of the law.
3. No reason for justification.
The elements of the offender (Mens Rea) comprise:
1. An offense (in the broad sense).
2. No reason for exoneration.
In considering, whereas in order to discover if the Accused's offense fits
the Law, the elements of each of the Ad Hoc Public Prosecutor's charges must
first be established.
FIRST:
The elements in article 42 are:
1. A person effectively acting as Military Commander responsible for serious
human rights violations.
2. Perpetrated by troops under his effective command and control or under
his effective power and control.
3. No appropriate control was exerted over the troops.
4. The military commander was aware or should have been aware that his
troops were perpetrating or had just perpetrated serious human rights
violations.
5. The military commander did not take appropriate and necessary measures to
prevent or halt or surrender the perpetrators to the authorities.
Element in article 7 item b:
- Crimes against humanity.
Elements in article 9 item a and article 340 KUHP (Criminal Code):
1. A widespread or systematic attack directed at the civilian population.
2. Intent or will.
3. Premeditation.
4. Causing loss of life to others.
Element in article 37 and article 42 paragraph (3) is the provision of a
criminal code.
SECOND:
The elements in article 42 paragraph (1) items a and b for elements No.1 to
5 are similar for the second charge as in the first charge, and as such the
panel will not reiterate them, except for the element of assault.
The element in article 7 item b is also similar to that in the first charge,
and as such the panel will not reiterate it.
Elements in article 9 item h are:
1. A widespread or systematic attack.
2. Assault against a certain group.
The element in article 40 and the element in article 42 paragraph (3) is the
provision of a criminal code.
In considering, whereas the panel shall analyze the first element in the
first charge by the Ad Hoc Public Prosecutor, namely:
A person effectively acting as Military Commander responsible for serious
human rights violations.
In considering, whereas military commander refers to a military person/soldier
who due to his position as granted through a letter of appointment controls
several military units/soldiers.
In considering, whereas under Skep Kasad Np.Skep/504/X/1997 dated October 1,
1997 the Accused held the position of Military District Commander in
Kabupaten Dili.
In considering, whereas on the basis of the above reference and connecting
the facts of law as disclosed in court, the Accused Endar Priyanto was
appointed under a letter of appointment as Military District Commander (Dandim)
1627 Dili from October 1, 1997 to August 9, 1999, overseeing 4 Koramils and
380 military personnel.
In considering, whereas as such the element of Military Commander is met.
In considering, whereas the first element includes serious human rights
violations.
In considering, whereas serious human rights violations, under article 7 Law
No.26 year 2000, include the crime of genocide and crimes against humanity.
According to the explanation in article 7, "crimes of genocide and crimes
against humanity are in conformance with" the Rome Statute of the
International Criminal Court (articles 6 and 7).
In considering, whereas Law No.26 year 2000 on Human Rights tribunals
provides no clear definition except in article 9, crimes against humanity as
referred to in article 7 item b are acts perpetrated as part of a widespread
or systematic attack in which such attack is directed at the civilian
population, such as:
a. Murder
b. Extermination
c. Enslavement.
d. Eviction or forcible deportation.
e. Deprivation of liberty or deprivation of physical liberty in a willful
manner in violation of the fundamental rules of international law.
f. Torture
g. Rape, sexual slavery, enforced prostitution, forced pregnancy, forced
sterilization, or other comparable forms of sexual violence.
h. Assault against a certain group or order based on political beliefs, race,
nationality, ethnicity, culture, religion, gender, or any other reason that
is universally banned under international law.
i. Forcible disappearance or
j. The crime of apartheid.
In considering, whereas both Law No.26 year 2000 that adopts articles 6 and
7 of the Rome Statute and as such is part of the International criminal code,
and UN charter article 6c on the definition of crimes against humanity, are
essentially similar in that they place emphasis on violence directed at the
civilian population.
In considering, whereas before considering element ad.2, it must first be
considered if serious human rights violations were committed in East Timor
as charged by the Ad Hoc Public Prosecutor.
In considering, whereas the Ad Hoc Public Prosecutor in the Charging
Document, pages 71 and 71, states that the incident of the attack on the
residence of Manuel Viegas Carrascalao on April 17 1999 that resulted in
casualties among the civilian population constitutes a serious human rights
violation.
In considering, whereas determining if a serious human rights violation was
or was not committed by the accounts above, in the panel's opinion will
hinge on the answer to the question, was the attack part of a widespread or
systematic attack directed at the civilian population in the form of murder
and or assault.
In considering, whereas the Law providing no clear definition on a
widespread or systematic attack, the panel shall refer to international
judicial practices as well as international legal literature.
In considering, whereas the definition of a widespread attack according to
Arne Willy Dahl (Judge Advocate General) of Norway, is one that is directed
against a multiplicity of victims. There is also the view that a widespread
attack refers to its massiveness, the scale of the crime and geography.
The definition of a systematic attack is based on the idea or principle of
planned research or observation employing generally used procedures. In
relation to human rights violations the definition of systematic may mean an
activity bearing a similar pattern and consistent.
Pattern here means interconnected structure or design, while consistent here
constitutes a notion marked by unchanging position or interconnection, and
also having a certain established character and directed repeatedly.
Another view on the definition of a systematic attack is an attack carried
out pursuant to a preconceived policy or plan (Arne Willy Dahl - Norwegian
Judge Advocate General).
In considering, whereas on the basis of the above definitions and the facts
of law uncovered in witnesses' testimonies, the Accused's testimony, and
other evidential endeavors, the panel is of the opinion that the incidents
of April 17, 1999 constitute serious human rights violations, based on the
following reasons:
1. The attack produced victims, both fatal and wounded, from the civilian
population.
2. Whereas the attack was carried out in a systematic manner, as visible in
the organized structure of the attacking group and the Pro Integration/autonomy
group's use of homemade firearms, machetes and bows and arrows to
consciously commit murder and torture resulting in death and injury directed
against the group of victims, and the ample time span for the group to
assemble until they numbered in the hundreds.
3. Whereas this group was organized as evident in that there was a group
leader and subgroup leaders within the Pro Integration/autonomy group.
In considering, whereas the question now is whether the serious violation of
human rights as proved in the above deliberations was in fact committed by
the Accused's subordinates who were under his effective control.
In considering, whereas before replying to the question the Panel shall
first need to discuss the next elements as in the elements below the
Military Commander did not take effective control of his men in an
appropriate manner, namely:
- The Military Commander or the individual was aware or under the
circumstances should have been aware that his men were perpetrating or had
just perpetrated serious human rights abuses, and the Military Commander or
the individual did not take appropriate and necessary actions to prevent or
halt the abuses or surrender the perpetrators to the authorities for
investigation, examination and prosecution.
In considering, whereas in the panel's view the element "Commander" needs no
further discussion as the element was previously discussed above and
Commander here refers to the Accused Endar Priyanto in his capacity as
Dandim of Dili East Timor.
In considering, whereas determining if the Accused did not take effective
control of the men under his command, shall properly hinge on the reply to
the following questions:
a. Was the Accused as Commander indeed aware, or consciously disregarding
information clearly indicating that his subordinates were perpetrating or
had just perpetrated serious human rights abuses?
b. Did the Accused as superior indeed fail to take appropriate and necessary
actions within his jurisdiction to prevent or halt the abuses or to
surrender the perpetrators to the authorities for investigation, examination
and prosecution?
In considering, whereas the legal facts uncovered in court reveal that the
Accused was informed of serious human rights abuses perpetrated in the
residence of Manuel Viegas Carrascalao on April 17, 1999 from the report of
witness Salman Manafe as Kasdim 1627 Dili, however subsequently it was not
proved that TNI personnel from Kodim 1627 Dili were involved in the incident.
In considering, whereas the Ad Hoc Public Prosecutor in his charge states
that there were TNI members, namely Jose Matheus Theofilo Dasilva De Beskau
Antonio De Gomes Miguel Duarte Amaral Carlos Baltilang, who took part in the
attack on the people in Manuel Viegas Carrascalao's house, and according to
the legal facts uncovered in court from the testimony of victim witnesses
appearing in court (witnesses Florido de Yesus and Alfredo de Sanches),
indeed TNI personnel were involved in the attack on Manuel Viegas
Carrascalao's house who were form Koramil Maubara that does not come into
the jurisdiction of Dandim 1627 Dili, however this was refuted by several
other witnesses.
In considering, whereas in the above the Accused is stated to have been
aware and informed, but as recounted above none of the Accused's
subordinates were proven to have committed serious human rights abuses and
furthermore the Accused did not disregard information, the issue now is
whether the Accused should be held criminally responsible for the serious
human rights abuses that took place in Dili.
In considering, whereas in this case responsibility pertains to the
responsibility of a superior or commander, in which juridically no
definition of command/commander exists in Indonesia other than normally
employed within TNI, and under the Command Doctrine is the power by law to
command and direct the unit of soldiers under his command, or the term
command may also refer to:
a. A unit.
b. A direction or order.
c. A special TNI-AD unit.
In ICTR (International Court Tribunal Rwanda), the judgment Akayeble
Paragraph 458 states that various views on Mens Rea are necessary for
Command responsibility, according to one view it stems from legal rules and
the established obligation that a superior is criminally responsible for the
acts committed by his subordinates without it being necessary to prove the
criminal intent of the superior.
In considering, whereas command responsibility according to PLT Sihombing,
SH.LLM (command responsibility in an essay), "Command unity is applied
through the chain of command, which is the hierarchical channel from the
highest command to the lowest command, wherein under the policy on decisions
and orders originating from the top command and distributed hierarchically
by command units to the implementation level, implementation decisions may
only be made by officials with positions in the chain of command.
In considering, whereas based on the above analyses, it was not proved that
the serious human rights violations committed in Dili were perpetrated by
the Accused's subordinates and therefore it is irrelevant to consider the
element that the "Commander" did not take appropriate and necessary actions
within his jurisdiction to prevent or halt these violations or to surrender
the perpetrators for investigation and prosecution.
In considering, whereas the serious human rights violations were not proved
to have been perpetrated by the Accused's subordinates in relation to the
principle of Command responsibility, the panel concludes that the Accused
should not be burdened with criminal responsibility for serious human rights
violations not proved to have been committed by his subordinates.
In considering, whereas therefore the second and third elements are not
fulfilled.
In considering, whereas the two principal elements above not having been
proved, the Accused who is charged with the criminal act of serious human
rights violations under article 42 paragraph 1 items a and b jis article 7
item b, article 9 item a, article 42 paragraph 3, article 37 Law No.26 year
2000 on Human Rights Tribunals, must be stated not proved guilty by law.
In considering, whereas based on the arguments set forth above, the Accused
must be released from the first charge (vrijspraak).
In considering, whereas the charging document by the Ad Hoc Public
Prosecutor is cumulative in nature, procedurally the panel shall deliberate
on the second charge containing the following principal elements:
1. A Military Commander.
2. Presence of serious human rights violations perpetrated by his
subordinates under his effective power and control.
3. The superior did not exert appropriate control over his troops, namely:
- The military commander was aware of, or lawfully disregarded information
clearly indicating that his troops were perpetrating or had just perpetrated
serious human rights violations, and
- The military commander did not take appropriate and necessary measures
within his jurisdiction to prevent or halt or surrender the perpetrators to
the authorities for investigation, examination and prosecution.
4. Crimes against humanity.
5. Assault directed against a certain group.
In considering, whereas the panel will first deliberate on article 7 item b
jis article 9 item h as supplementary articles and article 42 paragraph 2
items a and b Law No.26 year 2000.
Article 7 item b stipulates that human rights violations constitute:
a. Crimes of genocide.
b. Crimes against humanity.
In considering, whereas deliberation of article 7 item b having been
conducted under the first charge, therefore, mutatis mutandi, the Panel
shall apply such deliberation to article 7 item b of for the second charge.
Article 9 item h reforms to one form of crimes against humanity as "Assault
against a certain group."
In considering, whereas according to the facts of law uncovered in court, it
is clearly proved that the perpetrators of the attack, who were joined in a
Pro Integration group (Besi Merah Putih), and employed homemade firearms,
machetes and bows and arrows, had intentionally assaulted the victims in
Manuel Viegas Carrascalao's house on April 17, 1999.
In considering, whereas as mentioned above one form of crimes against
humanity is "assault" and the element of assault having been proved, the
panel shall now consider the charge of serious human rights violations as
regulated under article 42 paragraph 1 items a and b Law No.26 year 2000.
In considering, whereas the discussion of principal elements from article 42
paragraph 1 items a and b Law No,26 year 2000 was considered in the first
charge above, therefore in the second charge the panel shall not repeat the
discussion, however the panel shall mutatis mutandi apply the discussion for
consideration in the second charge.
In considering, whereas the two principal elements from article 42 paragraph
1 items a and b not having been proved, therefore the Accused who is charged
with serious human rights violations under article 42 paragraph 1 items a
and b jis article 7 item b, article 9 item h, article 42 paragraph 3,
article 40 Law No.26 year 2000 on Human Rights Tribunals should also by law
be proved not guilty.
In considering, whereas therefore under the second charge the Accused must
be released of all charges (Vrij Spraak).
In considering, whereas, on the basis of the entire considerations made, the
Panel concludes by law that the Accused is proved not guilty by law to have
committed the criminal act of serious human rights violations as charged in
both the first charge and second charge.
In considering, whereas therefore the Accused should be released from all
charges (Vrij Spraak).
In considering, whereas the Accused having been released from all charges,
therefore to the Accused should be restored all rights, in terms of capacity,
position and respect and dignity.
In considering, whereas the evidence list contained in the BAP was never
exhibited before the court despite the panel's request to the Ad Hoc Public
prosecutor to this effect, the panel shall not take such list into
consideration.
In considering, whereas the Accused having been released from all charges,
court costs shall be borne by the State.
In light of Law Number 39 Year 1999 jo article 10 Law Number 26 year 2000 jo
article 19 paragraph 1, article 19 paragraph 1 KUHAP jo article 14 paragraph
1 Government Regulation No.27 year 1983 and other legislation associated
with this case.
THE TRIBUNAL:
1. Pronounces the Accused Endar Priyanto lawfully and convincingly not
proven guilty of the criminal act of serious human rights violations as
charged against him under the First Charge and the Second Charge.
2. Releases the Accused from such charges.
3. Restores the rights of the Accused in terms of capacity, position and
respect and dignity.
4. Charges all court costs to the State.
Thus was this judgment reached in a deliberative meeting of the Ad Hoc Panel
of Justices in Central Jakarta District Court on Monday, November 25, 2002
by ourselves: Amril, SH as Chief Justice of the Panel, Edi Wibisono,
SE.SH.MH, Amiruddin Aburaera, SH, HM. Kabul Supriyadhie, SH.MHUM, Sulaeman
Hamid, SH, respectively as Member Justices, which judgment was pronounced on
Friday, November 29, 2002, in a tribunal declared open to the public by the
Chief Justice of the Panel, accompanied by Member Justices, and assisted by
Rivita Lina, SH, and Parmin, SH, as Substitute Court Clerks and attended by
K. Lere, SH, Harry Ismi, SH.MH, Ad Hoc Public Prosecutors and the Accused
who was attended by his Legal Counsel Team.
Member Justices Chief Justice
Signed signed
1. Edi Wibisono, SE.SH.MH Amril, SH
Signed
2. Amiruddin Aburaera, SH
Signed
3. HM. Kabul Supriyadhie, SH.MHUM
Signed
4. Sulaeman Hamid, SH
Substitute Court Clerks:
Ravita Lina, SH
Parmin, SH |
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