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The ad hoc human right court in the State Court
of Central Jakarta which investigate and try first degree cases with the
regular system, has given verdict as follows, on the cases of each defendant:
I. Letkol. Inf. Asep Kuswani, place of birth Garut, age 44 years old / date
of birth 7 February 1958, sex male, nationality Indonesia, residence Mabes
TNI Cilangkap East Jakarta, religion Islam, occupation member of military (former
DANDIM 1638 / Liquisa East Timor), education AKABRI.
II. Ajun High Commissioner Police Drs. Adios Salova, place of birth Bogor,
age 44 years old / date of birth 9 November 1958, sex male, nationality
Indonesia, residence Asrama Pecinan-Komplek POLRI Jl. Siliwangi no. 83
Kuningan-West Java. Religion Islam, occupation member of POLRI (former
Kapolres Liquisa East Timor), education SESPIM POLRI 1998.
III. Leoneto Martins, place of birth Liquisa East Timor, age 52 years old /
date of birth 15 March 1952, sex male, nationality Indonesia, residence Jl.
Desa Ngelbaki, Kecamatan Kupang Tengah, Kabupaten Kupan, Prop. Nusa Tenggara
Timur; religion Catholic, occupation civil servant; (former Bupati of
Liquisa East Timor), education SLTA (secondary school).
The defendants were not detained;
The defendants were accompanied by a Team of Lawyers consisting of 3 groups
which are the TNI Officers' Team of Human Rights Lawyers according to the
letter of power dated 17 June 2002; Drs. Adios Salova Team of Lawyers
according to the letter of power dated June 17 June 2002 and East Timor
Defenders' Team of Lawyers according to the letter of power dated 31 May
2002 where all are registered in the Administration of Ad Hoc Human Rights
Court of Central Jakarta.
The Ad Hoc Human Rights Trial;
Have read the case files;
Have read the Decision of the Chairperson of the Human Rights Court Central
Jakarta No. 06/ Pid.Ham/Ad Hoc/2002/PN.JKT.PST dated 03 June 2002, about the
Appointing of the Panel of Judges to investigate and try this case;
Have read the Decision of the Chairperson of the Human Rights Court Central
Jakarta No.06/Pid.Ham./Ad Hoc/2002/PN.Jkt.Pst dated 12 June 2002 about the
date of trials;
Have listened and taken into account the letter of indictment No. Case
Register : 04/HAM/TIM-TIM/05/2002 dated 31 May 2002 read by the General
Attorney at court;
Have listened and taken into account the exception of the Defendants given
and read by each Team of Lawyers at court;
Have listened and taken into account the responses and opinions of the
General Prosecutor read in court;
Have listened and taken into account the Temporary Ruling of the Ad Hoc
Human Rights Court No. 06/Pid.B/HAM Ad Hoc/2002/PN.JKT.PST. dated 10 July
2002;-
Have listened and taken into account the legal charges of the General
Prosecutor read in court dated 14 November 2002 that basically charges for
the Panel of Judges for Ad Hoc Human Rights Violation Cases who investigate
and try this cases decide to:
1. State that the Defendants are not proven to be legally and convincingly
guilty in perpetrating gross Violation of Human Rights by Assisting/Suggesting
crime against Humanity, violating Article 42 jis article 7 letter b, Act
article 9, letter a article 37 Act No 26 Year 2000, jo article 55 verse (1)
2nd Criminal Code.
2. Release the Defendants from that Primary indictment.
3. State that the Defendants have been proven to be legally and convincingly
guilty in perpetrating a criminal act of Gross Violation of Human Rights as
regulated in Article 41 jis Article 7 letter b, Article 9 sub a, Article 37
Act No. 26 Year 2000 about Human Rights Court.
4. Give a punishment of 10 (ten) years to each Defendant.
5. Resolve that Defendant 1 until Defendant 3 take the burden of paying the
case fee of Rp 5.000,- (five thousand rupiah) each.
Have listened and taken into account the legal defense of each Defendant,
delivered individually and by their Team of Lawyers, which was read in trial
consecutively, basically asking the Panel of Ad Hoc Human Rights Judges to
release the Defendants from all indictments (vrijspraak) or at least release
them from all legal charges (ontslag van rechtvervolgings), and rehabilitate
their names, and if the Panel of Ad Hoc Judges do not agree with the
elaboration of proof in that defense, then ask for the fairest verdict.
Considering, that the Defendants were taken to trial by the General
Prosecutor based on the following indictments:
FIRST
PRIMARY
That the First Defendant ASEP KUSWANI, as Commander of Military District
1638 / Liquisa, Second Defendant Drs. ADIOS SALOVA, as the Head of Resort
Police Liquisa, Third Defendant LEONETO MARTINS, as Bupati of Liquisa Region
and Lt. Col. Inf. Yayat Sudrajat as Commander of Intelligent Task Unit
Tribuana VIII who is a Defendant in another case file tried separately
together or individually on 6 April 1999, in the office of Military District
Command 1638/Liquisa East Timor or in other places where the Ad Hoc Human
Rights Court of Central Jakarta has authority to investigate and decide upon
the case according to the provisions in Article 2 President Decree No. 96
Year 2001 dated 1 August 2001, the Defendants as effective Military
Commander / supervisor did not control his troops/subordinates which are
under his Command and effective control, or under his authority and
effective control, i.e. Defendants 1, 2 and 3 knew or based on the situation
at that time should have known or had consciously neglected information that
clearly showed that his troops/subordinates were perpetrating, or had just
perpetrated gross violations of Human Rights by killing as an action
committed as part of a wide or systematic attack aimed directly to civilians
and Defendants 1, 2, and 3 did not do or take any appropriate and necessary
action under his authority to prevent or stop his troops/subordinates'
actions or surrender the perpetrators to the authorities to carry out
investigation, investigation, and give charges. The First Defendant as the
person in charge of security and safety of the people in the region of
Kabupaten Liquisa, Defendant 2 as the person in charge of security and order
in the region of Kabupaten Liquisa, Defendant 3 as the person in charge of
governance and development did not perform their authority according to the
law, thus the attack towards civilians taking shelter in Pastor Rafael Dos
Santos' residence in Church of Liquisa area happened, causing 22 (twenty two)
victims dead, actions carried out by the Defendants as follows:
Approaching the referendum in East Timor Province specifically in Kabupaten
Liquisa, security and order started to break up, resulting in feud, dispute
and conflict between Pro Independence group and Pro Integration group
followers of Besi Merah Putih (BMP) whose members then partially became
members of Pam Swakarsa.
The conflict, dispute and feud continued to spread, i.e. on 3 April 1999 the
Pro Independence group gave a threat of murder to the Pro Integration group
followers of Besi Merah Putih (BMP) in Desa Dato Kecamatan Liquisa Kabupaten
Liquisa.
On 4 April 1999 followers of Pro Independence who were lead by JACINTO DA
COSTA PEREIRA burned the houses of Pro Integration group followers of Besi
Merah Putih (BMP), because these followers of Besi Merah Putih (BMP) from
Pukelara and Maubara burned the house of FELISBERTO DOS SANTOS and murdered
his son named ELIDIO member of Pro Independence.
On 5 April 1999, for fear of being murdered by Pro Integration group,
followers of Pro Independence started to take refuge in Pastor RAFAEL DOS
SANTOS' residence in Church of Liquisa area, because Pastor HENRY from
Maubara had given information that Pro Integration group followers of Besi
Merah Putih (BMP) will come and attack Liquisa area.
That based on Pastor HENRY's information, Pro Independence group lead by
JACINTO DA COSTA PEREIRA and some of its members went to the border of
Maubara-Liquisa to anticipate the plan of attack of Pro Integration Group
followers of Besi Merah Putih (BMP), but when they met in Batu Blete, Pro
Integration group followers of Besi Merah Putih (BMP) assisted by Tentara
Nasional Indonesia (TNI) soldiers and members of Police of Republic of
Indonesia (Polri) had shot members of Pro Independence causing 2 (two)
victims dead and 7 (seven) people injured, among them JOSE from Hatu Kesi
and SIRILIO DOS SANTOS who was shot in his thigh.
Until 13.00 WITA followers of Pro Independence group from Maubara, Pukelara,
Liquisa and surrounding areas took refuge in Pastor RAFAEL DOS SANTOS'
residence in the Church of Liquisa area, amounting to +/- 2000 people and
soldiers of Tentara Nasional Indonesia (TNI) and members of Police of
Republic of Indonesia (Polri) and Pro Integration Group followers of Besi
Merah Putih (BMP) released shots to the air causing the refugees to panic
and become frightened.
At noon around 13.00 WITA, the Church of Liquisa area had been surrounded by
soldier of Tentara Nasional Indonesia (TNI) and member of Police of Republic
of Indonesia (Polri) who were then followed by the arrival of followers of
Besi Merah Putih (BMP) and they released shots to the air causing the
followers of Pro Independence from Maubara, Pukelara, Liquisa and
surrounding areas to become frieghtened and took refuge and sheltered in the
Church of Liquisa area.
Then on Tuesday, 6 April 1999, around 07.00 WITA +/- 300 people of Pro
Integration group followers of Besi Merah Putih (BMP) lead by MANUEL SOUSA
started to gather and surround Pastor RAFAEL DOS SANTOS' residence in Church
of Liquisa area, some brought fire arms, constructed fire arms, swords,
samurai, knives, bats, stabbing tools, arrows, or other violent weapons, and
they shouted to ask the refugees of Pro Independence to come out and leave
the Church area.
Around 08.00 a.m. Pastor RAFAEL DOS SANTOS was met by 2 (two) members of
Brimob named DAMIANUS DAPA and FRANSISKUS SALAMALI asking him to surrender
JACINTO DA COSTA and GREGORIO DOS SANTOS to Pro Integration group followers
of Besi Merah Putih (BMP), but the request was rejected by Pastor RAFAEL DOS
SANTOS for fear of them being murdered.
Around 11.30 WITA, 5 (five) members of Police of Republic of Indonesia (Polri)
lead by Lettu Pol. JHON REA came to Pastor RAFAEL DOS SANTOS' residence in
Church of Liquisa area to ask JACINTO DA COSTA be surrendered, where Pastor
RAFAEL DOS SANTOS was willing to surrender under the condition that JACINTO
DA COSTA PEREIRA and his friends are taken to Polda East Timor in Dili and
followers of Besi Merah Putih (BMP) are pulled out of Liquisa.
At that time Pro Integration group followers of Besi Merah Putih (BMP)
threatened the refugees by yelling "leave this area, or a second group will
come, even if you are inside the Church, we will attack the church later at
01.00 WITA", while throwing stones into Pastor RAFAEL DOS SANTOS' residence
in the Church of Liquisa area which was surrounded by a gate wall, thus
creating a fearful and frightening situation because soldiers of Tentara
Nasional Indonesia (TNI) from Kodim 1638/Liquisa and members of Brimob/Polri
from Polres Liquisa joined with Pro Integration group followers of Besi
Merah Putih (BMP).
Given the requirements proposed by Pastor RAFAEL DOS SANTOS, Lettu Pol. JHON
EA went to Headquarters of Kodim 1638/Liquisa to report the requirements and
to report that the group of Pro Integration followers of Besi Merah Putih (BMP)
would launch an attack to Church of Liquisa area if until 12.00 WITA JACINTO
DA COSTA PEREIRA was not surrendered. The report of Lettu Pol. JHON REA was
witnessed by the Defendants who were in the Headquarters of Kodim 1638/Liquisa
at that time.
Responding to the report of Lettu Pol. JHON ERA, Deputy Commander of Korem
164/WD Kol. Inf. MUJIONO gathered in a meeting with ASEP KUSWANI as
Commander of Military District/1638 Liquisa, Drs. ADIOS SALOVA as Head of
Resort Police (Kapolres) Liquisa, LEONETO MARTINS as Bupati of Liquisa
Region, and Let.Kol Inf. YAYAT SUDRAJAT as Commander of Intelligence Task
Unit Tribuana VIII. The meeting appointed LEONETO MARTINS to deliver their
approval of Pastor RAFAEL DOS SANTOS' requirements, however LEONETO MARTINS
rejected it because he was afraid of being murdered if he should meet Pastor
RAFAEL DOS SANTOS.
Around 12.15 WITA while Lettu Pol. JHON REA was on his way to Church of
Liquisa area, gun shots were still heard from that location followed by an
attack to the Church of Liquisa area by the group of Pro Integration
followers of Besi Merah Putih (BMP) who was lead by MANUEL SOUSA and JOSE
AFAAT (Camat Maubara), soldiers of Tentara Nasional Indonesia (TNI) who are:
1. JOSE MATHEUS.; 2. TOME DIOGO.; 3. ABILIO ALVES.; 4. CARLOS (Danramil
Maubara).; 5. ANTONIO GOMES. ; 6. ISAK DOS SANTOS.; 7. GEORGE VIEGAS.; 8.
MAURISIO.; 9. JEFERINO.; 10. ZACARIAS.; 11. MANUEL MARTINS, and 12. JACOB.
And committed murder by shooting with fire arms, constructed fire arms,
stabbing with swords and samurai, releasing arrows, stabbing with knives and
beating with other violent weapons the refugees followers of Pro
Independence who were taking shelter in Pastor RAFAEL DOS SANTOS' residence
in the Church of Liquisa area, causing victims of 22 (twenty two) civilians
dead, i.e.:
1. JACINTO DA COSTA PEREIRA; 2. AGUSTINHO; 3. JOANICO; 4. ABRAO DOS SANTOS;
5. AGUSTO MAUZINHO; 6. AMEKO DOS SANTOS; 7. NARSIZIO; 8. HERMINO DOS SANTOS;
9. FERNANDO DOS SANTOS; 10. LAURINDO PEREIRA; 11. MARIKI DOS SANTOS; 12.
MANUEL LISBOA; 13. VITOR DA COSTA; 14. ALBERTO OLIVERIA; 15. AMANDIO CESAR
DOS SANTOS; 16. CESAR DOS SANTOS; 17. AGUSTINHO DOS SANTOS; 18. LAURINDA DOS
SANTOS; 19. SANTIAGO; 20. JOHNNY / MAU SOKO; 21. Cemetery of victims without
names in Liquisa case in Maubara Cemetery; 22. Cemetery of victims without
names in Liquisa case in Maubara Cemetery.
Given the people who took refuge and sheltered in the Church of Liquisa area
at that time, the Defendants knew about the attack on civilian refugees
inside the Church of Liquisa area, the Defendants did not take any
appropriate action to prevent or stop that attack or to surrender the
perpetrators to the authority to carry out investigation, investigation and
give charges.
That the behavior of the Defendants as described above is a gross violation
of Human Rights as regulated and given punishment in the provisions of
Article 42 jis article 7 letter b, article 9 letter a, article 37 Act No. 26
year 2000 about Human Rights Court jo article 55 verse (1) 2nd Criminal Code.
SUBSIDIARY:
SPECIFICALLY ON THE DEFENDANT ASEP KUSWANI
That the Defendant ASEP KUSWANI, Lt.Col. Inf. NRP. 29468 as Commander of
Military District 1638 / Liquisa, East Timor, on Tuesday 6 April 1999, or at
other times around that in April year 1999, in the office of Military
District Command 1638/Liquisa East Timor, or at least in another place in
Liquisa Region, East Timor, or in other places where the Ad Hoc Human Rights
Court of State Court Central Jakarta has the authority to investigate and
decide upon the case according to provision of article 2 President Decree No.
96 Year 2001 dated 1 August year 2001, the Defendant as an effective
Military Commander or as a person who is effectively acting as Military
Commander is held responsible upon a crime under the jurisdiction of Human
Rights Court, where the crime was perpetrated by the soldiers under his
Command and effective control, or under his authority and effective control
and that crime is a result of absence of effective control upon soldiers,
i.e. the Defendant as the person in charge of security and safety of the
people in the region of Kabupaten Liquisa knew or based on the situation at
that time should have known that the soldiers under his authority and
effective control perpetrated, or had just perpetrated gross violations of
Human Rights by killing as an action committed as part of a wide or
systematic attack but the Defendant did not take any appropriate action
under his authority to prevent or stop those attacks or surrender the
perpetrators to the officials authorized to carry out investigation,
investigation, and give charges, actions which were carried out as follows:
Approaching the referendum in East Timor Province specifically in Kabupaten
Liquisa, security and order started to break up, resulting in feud, dispute
and conflict between Pro Independence group and Pro Integration group
followers of Besi Merah Putih (BMP) whose members then partially became
members of Pam Swakarsa.
The conflict, dispute and feud continued to spread, i.e. on 3 April 1999 the
Pro Independence group gave a threat of murder to the Pro Integration group
followers of Besi Merah Putih (BMP) in Desa Dato Kecamatan Liquisa Kabupaten
Liquisa.
On 4 April 1999 followers of Pro Independence who were lead by JACINTO DA
COSTA PEREIRA burned the houses of Pro Integration group followers of Besi
Merah Putih (BMP), because these followers of Besi Merah Putih (BMP) from
Pukelara and Maubara burned the house of FELISBERTO DOS SANTOS and murdered
his son named ELIDIO member of Pro Independence.
On 5 April 1999, for fear of being murdered by Pro Integration group,
followers of Pro Independence started to take refuge in Pastor RAFAEL DOS
SANTOS' residence in Church of Liquisa area, because Pastor HENRY from
Maubara had given information that Pro Integration group followers of Besi
Merah Putih (BMP) will come and attack Liquisa area.
That based on Pastor HENRY's information, Pro Independence group lead by
JACINTO DA COSTA PEREIRA and some of its members went to the border of
Maubara-Liquisa to anticipate the plan of attack of Pro Integration Group
followers of Besi Merah Putih (BMP), but when they met in Batu Blete, Pro
Integration group followers of Besi Merah Putih (BMP) assisted by Tentara
Nasional Indonesia (TNI) soldiers and members of Police of Republic of
Indonesia (Polri) had shot members of Pro Independence causing 2 (two)
victims dead and 7 (seven) people injured, among them JOSE from Hatu Kesi
and SIRILIO DOS SANTOS who was shot in his thigh.
Until 13.00 WITA followers of Pro Independence group from Maubara, Pukelara,
Liquisa and surrounding areas took refuge in Pastor RAFAEL DOS SANTOS'
residence in the Church of Liquisa area, amounting to +/- 2000 people and
soldiers of Tentara Nasional Indonesia (TNI) and members of Police of
Republic of Indonesia (Polri) and Pro Integration Group followers of Besi
Merah Putih (BMP) released shots to the air causing the refugees to panic
and become frightened.
At noon around 13.00 WITA, the Church of Liquisa area had been surrounded by
soldier of Tentara Nasional Indonesia (TNI) and member of Police of Republic
of Indonesia (Polri) who were then followed by the arrival of followers of
Besi Merah Putih (BMP) and they released shots to the air causing the
followers of Pro Independence from Maubara, Pukelara, Liquisa and
surrounding areas to become frieghtened and took refuge and sheltered in the
Church of Liquisa area.
Then on Tuesday, 6 April 1999, around 07.00 WITA +/- 300 people of Pro
Integration group followers of Besi Merah Putih (BMP) lead by MANUEL SOUSA
started to gather and surround Pastor RAFAEL DOS SANTOS' residence in Church
of Liquisa area, some brought fire arms, constructed fire arms, swords,
samurai, knives, bats, stabbing tools, arrows, or other violent weapons, and
they shouted to ask the refugees of Pro Independence to come out and leave
the Church area.
Around 08.00 a.m. Pastor RAFAEL DOS SANTOS was met by 2 (two) members of
Brimob named DAMIANUS DAPA and FRANSISKUS SALAMALI asking him to surrender
JACINTO DA COSTA and GREGORIO DOS SANTOS to Pro Integration group followers
of Besi Merah Putih (BMP), but the request was rejected by Pastor RAFAEL DOS
SANTOS for fear of them being murdered.
Around 11.30 WITA, 5 (five) members of Police of Republic of Indonesia (Polri)
lead by Lettu Pol. JHON REA came to Pastor RAFAEL DOS SANTOS' residence in
Church of Liquisa area to ask JACINTO DA COSTA be surrendered, where Pastor
RAFAEL DOS SANTOS was willing to surrender under the condition that JACINTO
DA COSTA PEREIRA and his friends are taken to Polda East Timor in Dili and
followers of Besi Merah Putih (BMP) are pulled out of Liquisa.
At that time Pro Integration group followers of Besi Merah Putih (BMP)
threatened the refugees by yelling "leave this area, or a second group will
come, even if you are inside the Church, we will attack the church later at
01.00 WITA", while throwing stones into Pastor RAFAEL DOS SANTOS' residence
in the Church of Liquisa area which was surrounded by a gate wall, thus
creating a fearful and frightening situation because soldiers of Tentara
Nasional Indonesia (TNI) from Kodim 1638/Liquisa and members of Brimob/Polri
from Polres Liquisa joined with Pro Integration group followers of Besi
Merah Putih (BMP).
Given the requirements proposed by Pastor RAFAEL DOS SANTOS, Lettu Pol. JHON
EA went to Headquarters of Kodim 1638/Liquisa to report the requirements and
to report that the group of Pro Integration followers of Besi Merah Putih (BMP)
would launch an attack to Church of Liquisa area if until 12.00 WITA JACINTO
DA COSTA PEREIRA was not surrendered. The report of Lettu Pol. JHON REA was
witnessed by the Defendants who were in the Headquarters of Kodim 1638/Liquisa
at that time.
Responding to the report of Lettu Pol. JHON ERA, Deputy Commander of Korem
164/WD Kol. Inf. MUJIONO gathered in a meeting with ASEP KUSWANI as
Commander of Military District/1638 Liquisa, Drs. ADIOS SALOVA as Head of
Resort Police (Kapolres) Liquisa, LEONETO MARTINS as Bupati of Liquisa
Region, and Let.Kol Inf. YAYAT SUDRAJAT as Commander of Intelligent Task
Unit Tribuana VIII. The meeting appointed LEONETO MARTINS to deliver their
approval of Pastor RAFAEL DOS SANTOS' requirements, however LEONETO MARTINS
rejected it because he was afraid of being murdered if he should meet Pastor
RAFAEL DOS SANTOS.
Around 12.15 WITA while Lettu Pol. JHON REA was on his way to Church of
Liquisa area, gun shots were still heard from that location followed by an
attack to the Church of Liquisa area by the group of Pro Integration
followers of Besi Merah Putih (BMP) who was lead by MANUEL SOUSA and JOSE
AFAAT (Camat Maubara), soldiers of Tentara Nasional Indonesia (TNI) who are:
1. JOSE MATHEUS.; 2. TOME DIOGO.; 3. ABILIO ALVES.; 4. CARLOS (Danramil
Maubara).; 5. ANTONIO GOMES. ; 6. ISAK DOS SANTOS.; 7. GEORGE VIEGAS.; 8.
MAURISIO.; 9. JEFERINO.; 10. ZACARIAS.; 11. MANUEL MARTINS, and 12. JACOB.
And committed murder by shooting with fire arms, constructed fire arms,
stabbing with swords and samurai, releasing arrows, stabbing with knives and
beating with other violent weapons the refugees followers of Pro
Independence who were taking shelter in Pastor RAFAEL DOS SANTOS' residence
in the Church of Liquisa area, causing victims of 22 (twenty two) civilians
dead, i.e.:
1. JACINTO DA COSTA PEREIRA; 2. AGUSTINHO; 3. JOANICO; 4. ABRAO DOS SANTOS;
5. AGUSTO MAUZINHO; 6. AMEKO DOS SANTOS; 7. NARSIZIO; 8. HERMINO DOS SANTOS;
9. FERNANDO DOS SANTOS; 10. LAURINDO PEREIRA; 11. MARIKI DOS SANTOS; 12.
MANUEL LISBOA; 13. VITOR DA COSTA; 14. ALBERTO OLIVERIA; 15. AMANDIO CESAR
DOS SANTOS; 16. CESAR DOS SANTOS; 17. AGUSTINHO DOS SANTOS; 18. LAURINDA DOS
SANTOS; 19. SANTIAGO; 20. JOHNNY / MAU SOKO; 21. Cemetery of victims without
names in Liquisa case in Maubara Cemetery; 22. Cemetery of victims without
names in Liquisa case in Maubara Cemetery.
Given the people who took refuge and sheltered in the Church of Liquisa area
at that time, the Defendant Asep Kuswani knew or given the situation at that
time should have known that soldiers of Tentara Nasional Indonesia (TNI)
under his command and effective control were perpetrating or had just
murdered the refugees taking shelter in Pastor Rafael Dos Santos' residence
in Church of Liquisa area, where that action is considered as gross
violation of Human Rights, but the Defendant Asep Kuswani did not take any
appropriate and necessary action under his power and authority to prevent or
stop those attacks, or after those attacks the Defendant Asep Kuswani did
not surrender the perpetrators to officials authorized to carry out
investigation, investigation dan give charges.
The behavior of the Defendant Asep Kuswani as described above is a gross
violation of Human Rights as regulated and given punishment in the
provisions of Article 42 verse (1) jis article 7 letter b, article 9 letter
a, article 37 Act No. 26 year 2000 about Human Rights Court.
SPECIFICALLY ON THE DEFENDANT DRS. ADIOS SALOVA
That the Defendant Drs. ADIOS SALOVA as Head of Resort Police Liquisa East
Timor, on Tuesday 6 April 1999, or at other times in the month of April year
1999, in the office of Military District Command 1638/Liquisa East Timor, or
at least in another place in Liquisa Region, East Timor, or in other places
where the Ad Hoc Human Rights Court of State Court Central Jakarta has the
authority to investigate and decide upon the case according to provision of
article 2 President Decree No. 96 Year 2001 dated 1 August year 2001, as a
superintendent who is legally responsible for the gross violations of Human
Rights committed by his subordinates under his authority and effective
control where the Defendant as the person in charge of security and order in
the region of Kabupaten Liquisa knew or neglected information that clearly
showed that his subordinates were perpetrating or had just perpetrated gross
violation of Human Right by killing as an action committed as part of a wide
or systematic attack aimed directly at civilians but the Defendant did not
do or take any appropriate and necessary action under his authority to
prevent or stop his subordinates' actions or surrender the perpetrators to
the officials authorized to carry out investigation, investigation, and give
charges, actions which were carried out as follows:
Approaching the referendum in East Timor Province specifically in Kabupaten
Liquisa, security and order started to break up, resulting in feud, dispute
and conflict between Pro Independence group and Pro Integration group
followers of Besi Merah Putih (BMP) whose members then partially became
members of Pam Swakarsa.
The conflict, dispute and feud continued to spread, i.e. on 3 April 1999 the
Pro Independence group gave a threat of murder to the Pro Integration group
followers of Besi Merah Putih (BMP) in Desa Dato Kecamatan Liquisa Kabupaten
Liquisa.
On 4 April 1999 followers of Pro Independence who were lead by JACINTO DA
COSTA PEREIRA burned the houses of Pro Integration group followers of Besi
Merah Putih (BMP), because these followers of Besi Merah Putih (BMP) from
Pukelara and Maubara burned the house of FELISBERTO DOS SANTOS and murdered
his son named ELIDIO member of Pro Independence.
On 5 April 1999, for fear of being murdered by Pro Integration group,
followers of Pro Independence started to take refuge in Pastor RAFAEL DOS
SANTOS' residence in Church of Liquisa area, because Pastor HENRY from
Maubara had given information that Pro Integration group followers of Besi
Merah Putih (BMP) will come and attack Liquisa area.
That based on Pastor HENRY's information, Pro Independence group lead by
JACINTO DA COSTA PEREIRA and some of its members went to the border of
Maubara-Liquisa to anticipate the plan of attack of Pro Integration Group
followers of Besi Merah Putih (BMP), but when they met in Batu Blete, Pro
Integration group followers of Besi Merah Putih (BMP) assisted by Tentara
Nasional Indonesia (TNI) soldiers and members of Police of Republic of
Indonesia (Polri) had shot members of Pro Independence causing 2 (two)
victims dead and 7 (seven) people injured, among them JOSE from Hatu Kesi
and SIRILIO DOS SANTOS who was shot in his thigh.
Until 13.00 WITA followers of Pro Independence group from Maubara, Pukelara,
Liquisa and surrounding areas took refuge in Pastor RAFAEL DOS SANTOS'
residence in the Church of Liquisa area, amounting to +/- 2000 people and
soldiers of Tentara Nasional Indonesia (TNI) and members of Police of
Republic of Indonesia (Polri) and Pro Integration Group followers of Besi
Merah Putih (BMP) released shots to the air causing the refugees to panic
and become frightened.
At noon around 13.00 WITA, the Church of Liquisa area had been surrounded by
soldier of Tentara Nasional Indonesia (TNI) and member of Police of Republic
of Indonesia (Polri) who were then followed by the arrival of followers of
Besi Merah Putih (BMP) and they released shots to the air causing the
followers of Pro Independence from Maubara, Pukelara, Liquisa and
surrounding areas to become frieghtened and took refuge and sheltered in the
Church of Liquisa area.
Then on Tuesday, 6 April 1999, around 07.00 WITA +/- 300 people of Pro
Integration group followers of Besi Merah Putih (BMP) lead by MANUEL SOUSA
started to gather and surround Pastor RAFAEL DOS SANTOS' residence in Church
of Liquisa area, some brought fire arms, constructed fire arms, swords,
samurai, knives, bats, stabbing tools, arrows, or other violent weapons, and
they shouted to ask the refugees of Pro Independence to come out and leave
the Church area.
Around 08.00 a.m. Pastor RAFAEL DOS SANTOS was met by 2 (two) members of
Brimob named DAMIANUS DAPA and FRANSISKUS SALAMALI asking him to surrender
JACINTO DA COSTA and GREGORIO DOS SANTOS to Pro Integration group followers
of Besi Merah Putih (BMP), but the request was rejected by Pastor RAFAEL DOS
SANTOS for fear of them being murdered.
Around 11.30 WITA, 5 (five) members of Police of Republic of Indonesia (Polri)
lead by Lettu Pol. JHON REA came to Pastor RAFAEL DOS SANTOS' residence in
Church of Liquisa area to ask JACINTO DA COSTA be surrendered, where Pastor
RAFAEL DOS SANTOS was willing to surrender under the condition that JACINTO
DA COSTA PEREIRA and his friends are taken to Polda East Timor in Dili and
followers of Besi Merah Putih (BMP) are pulled out of Liquisa.
At that time Pro Integration group followers of Besi Merah Putih (BMP)
threatened the refugees by yelling "leave this area, or a second group will
come, even if you are inside the Church, we will attack the church later at
01.00 WITA", while throwing stones into Pastor RAFAEL DOS SANTOS' residence
in the Church of Liquisa area which was surrounded by a gate wall, thus
creating a fearful and frightening situation because soldiers of Tentara
Nasional Indonesia (TNI) from Kodim 1638/Liquisa and members of Brimob/Polri
from Polres Liquisa joined with Pro Integration group followers of Besi
Merah Putih (BMP).
Given the requirements proposed by Pastor RAFAEL DOS SANTOS, Lettu Pol. JHON
EA went to Headquarters of Kodim 1638/Liquisa to report the requirements and
to report that the group of Pro Integration followers of Besi Merah Putih (BMP)
would launch an attack to Church of Liquisa area if until 12.00 WITA JACINTO
DA COSTA PEREIRA was not surrendered. The report of Lettu Pol. JHON REA was
witnessed by the Defendants who were in the Headquarters of Kodim 1638/Liquisa
at that time.
Responding to the report of Lettu Pol. JHON ERA, Deputy Commander of Korem
164/WD Kol. Inf. MUJIONO gathered in a meeting with ASEP KUSWANI as
Commander of Military District/1638 Liquisa, Drs. ADIOS SALOVA as Head of
Resort Police (Kapolres) Liquisa, LEONETO MARTINS as Bupati of Liquisa
Region, and Let.Kol Inf. YAYAT SUDRAJAT as Commander of Intelligent Task
Unit Tribuana VIII. The meeting appointed LEONETO MARTINS to deliver their
approval of Pastor RAFAEL DOS SANTOS' requirements, however LEONETO MARTINS
rejected it because he was afraid of being murdered if he should meet Pastor
RAFAEL DOS SANTOS.
Around 12.15 WITA while Lettu Pol. JHON REA was on his way to Church of
Liquisa area, gun shots were still heard from that location followed by an
attack to the Church of Liquisa area by the group of Pro Integration
followers of Besi Merah Putih (BMP) who was lead by MANUEL SOUSA and JOSE
AFAAT (Camat Maubara), soldiers of Tentara Nasional Indonesia (TNI) who are:
1. JOSE MATHEUS.; 2. TOME DIOGO.; 3. ABILIO ALVES.; 4. CARLOS (Danramil
Maubara).; 5. ANTONIO GOMES. ; 6. ISAK DOS SANTOS.; 7. GEORGE VIEGAS.; 8.
MAURISIO.; 9. JEFERINO.; 10. ZACARIAS.; 11. MANUEL MARTINS, and 12. JACOB.
And committed murder by shooting with fire arms, constructed fire arms,
stabbing with swords and samurai, releasing arrows, stabbing with knives and
beating with other violent weapons the refugees followers of Pro
Independence who were taking shelter in Pastor RAFAEL DOS SANTOS' residence
in the Church of Liquisa area, causing victims of 22 (twenty two) civilians
dead, i.e.:
1. JACINTO DA COSTA PEREIRA; 2. AGUSTINHO; 3. JOANICO; 4. ABRAO DOS SANTOS;
5. AGUSTO MAUZINHO; 6. AMEKO DOS SANTOS; 7. NARSIZIO; 8. HERMINO DOS SANTOS;
9. FERNANDO DOS SANTOS; 10. LAURINDO PEREIRA; 11. MARIKI DOS SANTOS; 12.
MANUEL LISBOA; 13. VITOR DA COSTA; 14. ALBERTO OLIVERIA; 15. AMANDIO CESAR
DOS SANTOS; 16. CESAR DOS SANTOS; 17. AGUSTINHO DOS SANTOS; 18. LAURINDA DOS
SANTOS; 19. SANTIAGO; 20. JOHNNY / MAU SOKO; 21. Cemetery of victims without
names in Liquisa case in Maubara Cemetery; 22. Cemetery of victims without
names in Liquisa case in Maubara Cemetery.
Given the people who took refuge and sheltered in the Church of Liquisa area
at that time, the Defendant Drs. Adios Salova knew or given the situation at
that time should have known that member of POLRI under his command and
effective control were perpetrating or had just murdered the refugees taking
shelter in Pastor Rafael Dos Santos' residence in Church of Liquisa area,
where that action is considered as gross violation of Human Rights, but the
Defendant Drs. Adios Salova did not take any appropriate and necessary
action under his power and authority to prevent or stop those attacks, or
after those attacks the Defendant Drs. Adios Salova did not surrender the
perpetrators to officials authorized to carry out investigation,
investigation dan give charges.
The behavior of the Defendant Drs. Adios Salova as described above is a
gross violation of Human Rights as regulated and given punishment in the
provisions of Article 42 verse (2) jis article 7 letter b, article 9 letter
a, article 37 Act No. 26 year 2000 about Human Rights Court.
SPECIFICALLY ON THE DEFENDANT LEONETO MARTINS
That the Defendant Leoneto Martins as Bupati of Liquisa Region, East Timor,
on Tuesday 6 April 1999, or at other times in the month of April 1999, in
the office of Military District Command 1638/Liquisa East Timor or in other
places where the Ad Hoc Human Rights Court of State Court Central Jakarta
has the authority to investigate and decide upon the case according to
provision of article 2 President Decree No. 96 Year 2001 dated 1 August year
2001, as a superintendent the Defendant Leoneto Martins is legally
responsible for the gross violations of Human Rights committed by his
subordinates under his authority and effective control where the Defendant
Leoneto Martins knew or consciously neglected information that clearly
showed that his subordinates were perpetrating or had just perpetrated gross
violation of Human Right by killing as an action committed as part of a wide
or systematic attack aimed directly at civilians but the Defendant Leoneto
Martins did not do or take any appropriate and necessary action under his
authority to prevent or stop his subordinates' actions or surrender the
perpetrators to the officials authorized to carry out investigation,
investigation, and give charges, actions which were carried out as follows:
Approaching the referendum in East Timor Province specifically in Kabupaten
Liquisa, security and order started to break up, resulting in feud, dispute
and conflict between Pro Independence group and Pro Integration group
followers of Besi Merah Putih (BMP) whose members then partially became
members of Pam Swakarsa.
The conflict, dispute and feud continued to spread, i.e. on 3 April 1999 the
Pro Independence group gave a threat of murder to the Pro Integration group
followers of Besi Merah Putih (BMP) in Desa Dato Kecamatan Liquisa Kabupaten
Liquisa.
On 4 April 1999 followers of Pro Independence who were lead by JACINTO DA
COSTA PEREIRA burned the houses of Pro Integration group followers of Besi
Merah Putih (BMP), because these followers of Besi Merah Putih (BMP) from
Pukelara and Maubara burned the house of FELISBERTO DOS SANTOS and murdered
his son named ELIDIO member of Pro Independence.
On 5 April 1999, for fear of being murdered by Pro Integration group,
followers of Pro Independence started to take refuge in Pastor RAFAEL DOS
SANTOS' residence in Church of Liquisa area, because Pastor HENRY from
Maubara had given information that Pro Integration group followers of Besi
Merah Putih (BMP) will come and attack Liquisa area.
That based on Pastor HENRY's information, Pro Independence group lead by
JACINTO DA COSTA PEREIRA and some of its members went to the border of
Maubara-Liquisa to anticipate the plan of attack of Pro Integration Group
followers of Besi Merah Putih (BMP), but when they met in Batu Blete, Pro
Integration group followers of Besi Merah Putih (BMP) assisted by Tentara
Nasional Indonesia (TNI) soldiers and members of Police of Republic of
Indonesia (Polri) had shot members of Pro Independence causing 2 (two)
victims dead and 7 (seven) people injured, among them JOSE from Hatu Kesi
and SIRILIO DOS SANTOS who was shot in his thigh.
Until 13.00 WITA followers of Pro Independence group from Maubara, Pukelara,
Liquisa and surrounding areas took refuge in Pastor RAFAEL DOS SANTOS'
residence in the Church of Liquisa area, amounting to +/- 2000 people and
soldiers of Tentara Nasional Indonesia (TNI) and members of Police of
Republic of Indonesia (Polri) and Pro Integration Group followers of Besi
Merah Putih (BMP) released shots to the air causing the refugees to panic
and become frightened.
At noon around 13.00 WITA, the Church of Liquisa area had been surrounded by
soldier of Tentara Nasional Indonesia (TNI) and member of Police of Republic
of Indonesia (Polri) who were then followed by the arrival of followers of
Besi Merah Putih (BMP) and they released shots to the air causing the
followers of Pro Independence from Maubara, Pukelara, Liquisa and
surrounding areas to become frieghtened and took refuge and sheltered in the
Church of Liquisa area.
Then on Tuesday, 6 April 1999, around 07.00 WITA +/- 300 people of Pro
Integration group followers of Besi Merah Putih (BMP) lead by MANUEL SOUSA
started to gather and surround Pastor RAFAEL DOS SANTOS' residence in Church
of Liquisa area, some brought fire arms, constructed fire arms, swords,
samurai, knives, bats, stabbing tools, arrows, or other violent weapons, and
they shouted to ask the refugees of Pro Independence to come out and leave
the Church area.
Around 08.00 a.m. Pastor RAFAEL DOS SANTOS was met by 2 (two) members of
Brimob named DAMIANUS DAPA and FRANSISKUS SALAMALI asking him to surrender
JACINTO DA COSTA and GREGORIO DOS SANTOS to Pro Integration group followers
of Besi Merah Putih (BMP), but the request was rejected by Pastor RAFAEL DOS
SANTOS for fear of them being murdered.
Around 11.30 WITA, 5 (five) members of Police of Republic of Indonesia (Polri)
lead by Lettu Pol. JHON REA came to Pastor RAFAEL DOS SANTOS' residence in
Church of Liquisa area to ask JACINTO DA COSTA be surrendered, where Pastor
RAFAEL DOS SANTOS was willing to surrender under the condition that JACINTO
DA COSTA PEREIRA and his friends are taken to Polda East Timor in Dili and
followers of Besi Merah Putih (BMP) are pulled out of Liquisa.
At that time Pro Integration group followers of Besi Merah Putih (BMP)
threatened the refugees by yelling "leave this area, or a second group will
come, even if you are inside the Church, we will attack the church later at
01.00 WITA", while throwing stones into Pastor RAFAEL DOS SANTOS' residence
in the Church of Liquisa area which was surrounded by a gate wall, thus
creating a fearful and frightening situation because soldiers of Tentara
Nasional Indonesia (TNI) from Kodim 1638/Liquisa and members of Brimob/Polri
from Polres Liquisa joined with Pro Integration group followers of Besi
Merah Putih (BMP).
Given the requirements proposed by Pastor RAFAEL DOS SANTOS, Lettu Pol. JHON
EA went to Headquarters of Kodim 1638/Liquisa to report the requirements and
to report that the group of Pro Integration followers of Besi Merah Putih (BMP)
would launch an attack to Church of Liquisa area if until 12.00 WITA JACINTO
DA COSTA PEREIRA was not surrendered. The report of Lettu Pol. JHON REA was
witnessed by the Defendants who were in the Headquarters of Kodim 1638/Liquisa
at that time.
Responding to the report of Lettu Pol. JHON ERA, Deputy Commander of Korem
164/WD Kol. Inf. MUJIONO gathered in a meeting with ASEP KUSWANI as
Commander of Military District/1638 Liquisa, Drs. ADIOS SALOVA as Head of
Resort Police (Kapolres) Liquisa, LEONETO MARTINS as Bupati of Liquisa
Region, and Let.Kol Inf. YAYAT SUDRAJAT as Commander of Intelligent Task
Unit Tribuana VIII. The meeting appointed LEONETO MARTINS to deliver their
approval of Pastor RAFAEL DOS SANTOS' requirements, however LEONETO MARTINS
rejected it because he was afraid of being murdered if he should meet Pastor
RAFAEL DOS SANTOS.
Around 12.15 WITA while Lettu Pol. JHON REA was on his way to Church of
Liquisa area, gun shots were still heard from that location followed by an
attack to the Church of Liquisa area by the group of Pro Integration
followers of Besi Merah Putih (BMP) who was lead by MANUEL SOUSA and JOSE
AFAAT (Camat Maubara), soldiers of Tentara Nasional Indonesia (TNI) who are:
1. JOSE MATHEUS.; 2. TOME DIOGO.; 3. ABILIO ALVES.; 4. CARLOS (Danramil
Maubara).; 5. ANTONIO GOMES. ; 6. ISAK DOS SANTOS.; 7. GEORGE VIEGAS.; 8.
MAURISIO.; 9. JEFERINO.; 10. ZACARIAS.; 11. MANUEL MARTINS, and 12. JACOB.
And committed murder by shooting with fire arms, constructed fire arms,
stabbing with swords and samurai, releasing arrows, stabbing with knives and
beating with other violent weapons the refugees followers of Pro
Independence who were taking shelter in Pastor RAFAEL DOS SANTOS' residence
in the Church of Liquisa area, causing victims of 22 (twenty two) civilians
dead, i.e.:
1. JACINTO DA COSTA PEREIRA; 2. AGUSTINHO; 3. JOANICO; 4. ABRAO DOS SANTOS;
5. AGUSTO MAUZINHO; 6. AMEKO DOS SANTOS; 7. NARSIZIO; 8. HERMINO DOS SANTOS;
9. FERNANDO DOS SANTOS; 10. LAURINDO PEREIRA; 11. MARIKI DOS SANTOS; 12.
MANUEL LISBOA; 13. VITOR DA COSTA; 14. ALBERTO OLIVERIA; 15. AMANDIO CESAR
DOS SANTOS; 16. CESAR DOS SANTOS; 17. AGUSTINHO DOS SANTOS; 18. LAURINDA DOS
SANTOS; 19. SANTIAGO; 20. JOHNNY / MAU SOKO; 21. Cemetery of victims without
names in Liquisa case in Maubara Cemetery; 22. Cemetery of victims without
names in Liquisa case in Maubara Cemetery.
Given the people who took refuge and sheltered in the Church of Liquisa area
at that time, the Defendant Leoneto Martins knew or given the situation at
that time should have known that his subordinates who were under his
effective control were perpetrating or had just murdered the refugees taking
shelter in Pastor Rafael Dos Santos' residence in Church of Liquisa area,
where that action is considered as gross violation of Human Rights, but the
Defendant Leoneto Martins did not take any appropriate and necessary action
under his power and authority to prevent or stop those attacks, or after
those attacks the Defendant Leoneto Martins did not surrender the
perpetrators to officials authorized to carry out investigation,
investigation dan give charges.
The behavior of the Defendant Leoneto Martins as described above is a gross
violation of Human Rights as regulated and given punishment in the
provisions of Article 42 verse (2) jis article 7 letter b, article 9 letter
a, article 37 Act No. 26 year 2000 about Human Rights Court.
SECOND
PRIMARY
That the First Defendant ASEP KUSWANI, as Commander of Military District
1638 / Liquisa, Second Defendant Drs. ADIOS SALOVA, as the Head of Resort
Police Liquisa, Third Defendant LEONITO MARTINS, as Bupati of Liquisa Region
and Lt. Col. Inf. Yayat Sudrajat as Commander of Intelligent Task Unit
Tribuana VIII who is a Defendant in another case file tried separately
together or individually on 6 April 1999, in the office of Military District
Command 1638/Liquisa East Timor or in other places where the Ad Hoc Human
Rights Court of Central Jakarta has authority to investigate and decide upon
the case according to the provisions in Article 2 President Decree No. 96
Year 2001 dated 1 August 2001, the Defendants as effective Military
Commander / supervisor did not control his troops/subordinates which are
under his Command and effective control, or under his authority and
effective control, i.e. Defendants 1, 2 and 3 knew or based on the situation
at that time should have known or had consciously neglected information that
clearly showed that his troops/subordinates were perpetrating, or had just
perpetrated gross violations of Human Rights in the form of torture
perpetrated as an action committed as part of a wide or systematic attack
aimed directly to civilians and Defendants 1, 2, and 3 did not do or take
any appropriate and necessary action under his authority to prevent or stop
his troops/subordinates' actions or surrender the perpetrators to officials
authorized to carry out investigation, investigation, and give charges. The
First Defendant as the person in charge of security and safety of the people
in the region of Kabupaten Liquisa, Defendant 2 as the person in charge of
security and order in the region of Kabupaten Liquisa, Defendant 3 as the
person in charge of governance and development did not perform their
authority according to the law, thus the attack towards civilians taking
shelter in Pastor Rafael Dos Santos residence in Church of Liquisa area
happened, causing 21 (twenty one) victims injured, actions carried out by
the Defendants as follows:
Approaching the referendum in East Timor Province specifically in Kabupaten
Liquisa, security and order started to break up, resulting in feud, dispute
and conflict between Pro Independence group and Pro Integration group
followers of Besi Merah Putih (BMP) whose members then partially became
members of Pam Swakarsa.
The conflict, dispute and feud continued to spread, i.e. on 3 April 1999 the
Pro Independence group gave a threat of murder to the Pro Integration group
followers of Besi Merah Putih (BMP) in Desa Dato Kecamatan Liquisa Kabupaten
Liquisa.
On 4 April 1999 followers of Pro Independence who were lead by JACINTO DA
COSTA PEREIRA burned the houses of Pro Integration group followers of Besi
Merah Putih (BMP), because these followers of Besi Merah Putih (BMP) from
Pukelara and Maubara burned the house of FELISBERTO DOS SANTOS and murdered
his son named ELIDIO member of Pro Independence.
On 5 April 1999, for fear of being murdered by Pro Integration group,
followers of Pro Independence started to take refuge in Pastor RAFAEL DOS
SANTOS' residence in Church of Liquisa area, because Pastor HENRY from
Maubara had given information that Pro Integration group followers of Besi
Merah Putih (BMP) will come and attack Liquisa area.
That based on Pastor HENRY's information, Pro Independence group lead by
JACINTO DA COSTA PEREIRA and some of its members went to the border of
Maubara-Liquisa to anticipate the plan of attack of Pro Integration Group
followers of Besi Merah Putih (BMP), but when they met in Batu Blete, Pro
Integration group followers of Besi Merah Putih (BMP) assisted by Tentara
Nasional Indonesia (TNI) soldiers and members of Police of Republic of
Indonesia (Polri) had shot members of Pro Independence causing 2 (two)
victims dead and 7 (seven) people injured, among them JOSE from Hatu Kesi
and SIRILIO DOS SANTOS who was shot in his thigh.
Until 13.00 WITA followers of Pro Independence group from Maubara, Pukelara,
Liquisa and surrounding areas took refuge in Pastor RAFAEL DOS SANTOS'
residence in the Church of Liquisa area, amounting to +2000 people and
soldiers of Tentara Nasional Indonesia (TNI) and members of Police of
Republic of Indonesia (Polri) and Pro Integration Group followers of Besi
Merah Putih (BMP) released shots to the air causing the refugees to panic
and become very frightened.
At noon around 13.00 WITA, the Church of Liquisa area had been surrounded by
soldier of Tentara Nasional Indonesia (TNI) and member of Police of Republic
of Indonesia (Polri) who were then followed by the arrival of followers of
Besi Merah Putih (BMP) and they released shots to the air causing the
followers of Pro Independence from Maubara, Pukelara, Liquisa and
surrounding areas to become frieghtened and took refuge and sheltered in the
Church of Liquisa area.
Then on Tuesday, 6 April 1999, around 07.00 WITA +300 people of Pro
Integration group followers of Besi Merah Putih (BMP) lead by MANUEL SOUSA
started to gather and surround Pastor RAFAEL DOS SANTOS' residence in Church
of Liquisa area, some brought fire arms, constructed fire arms, swords,
samurai, knives, bats, stabbing tools, arrows, or other violent weapons, and
they shouted to ask the refugees of Pro Independence to come out and leave
the Church area.
Around 08.00 a.m. Pastor RAFAEL DOS SANTOS was met by 2 (two) members of
Brimob named DAMIANUS DAPA and FRANSISKUS SALAMALI asking him to surrender
JACINTO DA COSTA and GREGORIO DOS SANTOS to Pro Integration group followers
of Besi Merah Putih (BMP), but the request was rejected by Pastor RAFAEL DOS
SANTOS for fear of them being murdered.
Around 11.30 WITA, 5 (five) members of Police of Republic of Indonesia (Polri)
lead by Lettu Pol. JHON REA came to Pastor RAFAEL DOS SANTOS' residence in
Church of Liquisa area to ask JACINTO DA COSTA be surrendered, where Pastor
RAFAEL DOS SANTOS was willing to surrender under the condition that JACINTO
DA COSTA PEREIRA and his friends are taken to Polda East Timor in Dili and
followers of Besi Merah Putih (BMP) are pulled out of Liquisa.
At that time Pro Integration group followers of Besi Merah Putih (BMP)
threatened the refugees by yelling "leave this area, or a second group will
come, even if you are inside the Church, we will attack the church later at
01.00 WITA", while throwing stones into Pastor RAFAEL DOS SANTOS' residence
in the Church of Liquisa area which was surrounded by a gate wall, thus
creating a fearful and frightening situation because soldiers of Tentara
Nasional Indonesia (TNI) from Kodim 1638/Liquisa and members of Brimob/Polri
from Polres Liquisa joined with Pro Integration group followers of Besi
Merah Putih (BMP).
Given the requirements proposed by Pastor RAFAEL DOS SANTOS, Lettu Pol. JHON
EA went to Headquarters of Kodim 1638/Liquisa to report the requirements and
to report that the group of Pro Integration followers of Besi Merah Putih (BMP)
would launch an attack to Church of Liquisa area if until 12.00 WITA JACINTO
DA COSTA PEREIRA was not surrendered. The report of Lettu Pol. JHON REA was
witnessed by the Defendants who were in the Headquarters of Kodim 1638/Liquisa
at that time.
Responding to the report of Lettu Pol. JHON ERA, Deputy Commander of Korem
164/WD Kol. Inf. MUJIONO gathered in a meeting with ASEP KUSWANI as
Commander of Military District/1638 Liquisa, Drs. ADIOS SALOVA as Head of
Resort Police (Kapolres) Liquisa, LEONETO MARTINS as Bupati of Liquisa
Region, and Let.Kol Inf. YAYAT SUDRAJAT as Commander of Intelligent Task
Unit Tribuana VIII. The meeting appointed LEONETO MARTINS to deliver their
approval of Pastor RAFAEL DOS SANTOS' requirements, however LEONETO MARTINS
rejected it because he was afraid of being murdered if he should meet Pastor
RAFAEL DOS SANTOS.
Around 12.15 WITA while Lettu Pol. JHON REA was on his way to Church of
Liquisa area, gun shots were still heard from that location followed by an
attack to the Church of Liquisa area by the group of Pro Integration
followers of Besi Merah Putih (BMP) of + 300 people, among them are:
1. CRISPIN DA COSTA PEREIRA; 2. ALFONSO; 3. MIGUANA; 4. VIKTOR; 5. FRANSISCO;
6. JOAO LOU MESA; 7. MOUREGO; 8. FERNANDO; 9. AKUBOU; 10. TEDI; 11. ROMALDO;
12. MASERNA; lead by MANUEL SOUSA and JOSE AFAAT (Camat Maubara), soldiers
of Tentara Nasional Indonesia (TNI), who are:
1. JOSE MATHEUS.; 2. TOME DIOGO.; 3. ABILIO ALVES.; 4. CARLOS (Danramil
Maubara).; 5. ANTONIO GOMES. ; 6. ISAK DOS SANTOS.; 7. GEORGE VIEGAS.; 8.
MAURISIO.; 9. JEFERINO.; 10. ZACARIAS.; 11. MANUEL MARTINS, and 12. JACOB.
And some members of Resort Police Liquisa, among them are:
1. ALFONSO; 2. CHICO.
Thus, Lettu Pol. Jhon Rea recalled his intention of meeting Pastor Rafael
Dos Santos to deliver the message of the Defendants.
That as government officials, Let.Kol. Inf. ASEP KUSWANI, as Commander of
Military District 1638/Liquisa, Drs. ADIOS SALOVA, as Head of Resort Police
Liquisa, LEONITO MARTINS. As Bupati of Liquisa Region had the authority to
prevent those attacks, but did not have the initiative to prevent mass
concentration and did not attempt to disarm fire arms and other tools used
by followers of Besi Merah Putih (BMP) and did not attempt to hinder / take
away and evict mass from the Church of Liquisa area, besides the Defendant
Let.Kol. Pol Drs. Adios Salova as Head Of Resort Police did not take any
legal action towards people who owned unlicensed fire arms and weapons, when
the Defendant Drs. Adios Salova had the authority to take legal actions
according to the law, and the Defendant Leoneto Martins as Bupati of Region
Liquisa did not prevent mass concentration of Besi Merah Putih whose members
are mostly member of Pam Swakarsa under his training and control.
That the attack to the Church of Liquisa area committed by Besi Merah Putih
(BMP) group together with TNI soldiers and police members had caused 21 (twenty-one)
victims injured, i.e.:
1. JOSE RAMOS ; 2. FRANSISCO DOS SANTOS; 3. JOAO PEREIRA; 4. ABILIO DOS
SANTOS ; 5. JOSE NUNES SERRAO ; 6. LUCAS SOARESL 7. MATEUS PANLERO; 8.
RICARDO RODRIGUES PEREIRA; 9. LAKUMAU; 10. JANUARI; 11. FELIS; 12. JOAO KUDA;
13. ARMANDO; 14. ANTONIO; 15. LUIS; 16. EMILIO; 17. LUCAS DOS SANTOS; 18.
JOAO DOS SANTOS; 19. SEBASTIO; 20. RAMIRO; 21. MATIUS ALVES CORREIA;
from the mass who were taking refuge and shelter in the Church of Liquisa
area at that time.
That the behavior of the Defendants as described above is a gross violation
of Human Rights as regulated and given punishment in the provisions of
Article 42 jis article 7 letter b, article 9 letter h, jis., article 40 Act
No. 26 year 2000 jo article 55 verse (1) 2nd Criminal Code.
SUBSIDIARY:
SPECIFICALLY ON THE DEFENDANT ASEP KUSWANI
That the Defendant ASEP KUSWANI, Lt.Col. Inf. NRP. 29468 as Commander of
Military District 1638 / Liquisa, East Timor, on Tuesday 6 April 1999, or at
other times around that in April year 1999, in the office of Military
District Command 1638/Liquisa East Timor, or at least in another place in
Liquisa Region, East Timor, or in other places where the Ad Hoc Human Rights
Court of State Court Central Jakarta has the authority to investigate and
decide upon the case according to provision of article 2 President Decree No.
96 Year 2001 dated 1 August year 2001, the Defendant as an effective
Military Commander or as a person who is effectively acting as Military
Commander is held responsible upon a crime under the jurisdiction of Human
Rights Court, where the crime was perpetrated by the soldiers under his
Command and effective control, or under his authority and effective control
and that crime is a result of absence of effective control upon soldiers,
i.e. the Defendant Asep Kuswani as the person in charge of security and
safety of the people in the region of Kabupaten Liquisa knew or based on the
situation at that time should have known that the soldiers under his
authority and effective control perpetrated, or had just perpetrated gross
violations of Human Rights in the form of torture perpetrated as an action
committed as part of a wide or systematic attack but the Defendant Asep
Kuswani did not take any appropriate action under his authority to prevent
or stop those attacks or surrender the perpetrators to the officials
authorized to carry out investigation, investigation, and give charges,
actions which were carried out as follows:
Approaching the referendum in East Timor Province specifically in Kabupaten
Liquisa, security and order started to break up, resulting in feud, dispute
and conflict between Pro Independence group and Pro Integration group
followers of Besi Merah Putih (BMP) whose members then partially became
members of Pam Swakarsa.
The conflict, dispute and feud continued to spread, i.e. on 3 April 1999 the
Pro Independence group gave a threat of murder to the Pro Integration group
followers of Besi Merah Putih (BMP) in Desa Dato Kecamatan Liquisa Kabupaten
Liquisa.
On 4 April 1999 followers of Pro Independence who were lead by JACINTO DA
COSTA PEREIRA burned the houses of Pro Integration group followers of Besi
Merah Putih (BMP), because these followers of Besi Merah Putih (BMP) from
Pukelara and Maubara burned the house of FELISBERTO DOS SANTOS and murdered
his son named ELIDIO member of Pro Independence.
On 5 April 1999, for fear of being murdered by Pro Integration group,
followers of Pro Independence started to take refuge in Pastor RAFAEL DOS
SANTOS' residence in Church of Liquisa area, because Pastor HENRY from
Maubara had given information that Pro Integration group followers of Besi
Merah Putih (BMP) will come and attack Liquisa area.
That based on Pastor HENRY's information, Pro Independence group lead by
JACINTO DA COSTA PEREIRA and some of its members went to the border of
Maubara-Liquisa to anticipate the plan of attack of Pro Integration Group
followers of Besi Merah Putih (BMP), but when they met in Batu Blete, Pro
Integration group followers of Besi Merah Putih (BMP) assisted by Tentara
Nasional Indonesia (TNI) soldiers and members of Police of Republic of
Indonesia (Polri) had shot members of Pro Independence causing 2 (two)
victims dead and 7 (seven) people injured, among them JOSE from Hatu Kesi
and SIRILIO DOS SANTOS who was shot in his thigh.
Until 13.00 WITA followers of Pro Independence group from Maubara, Pukelara,
Liquisa and surrounding areas took refuge in Pastor RAFAEL DOS SANTOS'
residence in the Church of Liquisa area, amounting to +/- 2000 people and
soldiers of Tentara Nasional Indonesia (TNI) and members of Police of
Republic of Indonesia (Polri) and Pro Integration Group followers of Besi
Merah Putih (BMP) released shots to the air causing the refugees to panic
and become frightened.
At noon around 13.00 WITA, the Church of Liquisa area had been surrounded by
soldier of Tentara Nasional Indonesia (TNI) and member of Police of Republic
of Indonesia (Polri) who were then followed by the arrival of followers of
Besi Merah Putih (BMP) and they released shots to the air causing the
followers of Pro Independence from Maubara, Pukelara, Liquisa and
surrounding areas to become frieghtened and took refuge and sheltered in the
Church of Liquisa area.
Then on Tuesday, 6 April 1999, around 07.00 WITA +/- 300 people of Pro
Integration group followers of Besi Merah Putih (BMP) lead by MANUEL SOUSA
started to gather and surround Pastor RAFAEL DOS SANTOS' residence in Church
of Liquisa area, some brought fire arms, constructed fire arms, swords,
samurai, knives, bats, stabbing tools, arrows, or other violent weapons, and
they shouted to ask the refugees of Pro Independence to come out and leave
the Church area.
Around 08.00 a.m. Pastor RAFAEL DOS SANTOS was met by 2 (two) members of
Brimob named DAMIANUS DAPA and FRANSISKUS SALAMALI asking him to surrender
JACINTO DA COSTA and GREGORIO DOS SANTOS to Pro Integration group followers
of Besi Merah Putih (BMP), but the request was rejected by Pastor RAFAEL DOS
SANTOS for fear of them being murdered.
Around 11.30 WITA, 5 (five) members of Police of Republic of Indonesia (Polri)
lead by Lettu Pol. JHON REA came to Pastor RAFAEL DOS SANTOS' residence in
Church of Liquisa area to ask JACINTO DA COSTA be surrendered, where Pastor
RAFAEL DOS SANTOS was willing to surrender under the condition that JACINTO
DA COSTA PEREIRA and his friends are taken to Polda East Timor in Dili and
followers of Besi Merah Putih (BMP) are pulled out of Liquisa.
At that time Pro Integration group followers of Besi Merah Putih (BMP)
threatened the refugees by yelling "leave this area, or a second group will
come, even if you are inside the Church, we will attack the church later at
01.00 WITA", while throwing stones into Pastor RAFAEL DOS SANTOS' residence
in the Church of Liquisa area which was surrounded by a gate wall, thus
creating a fearful and frightening situation because soldiers of Tentara
Nasional Indonesia (TNI) from Kodim 1638/Liquisa and members of Brimob/Polri
from Polres Liquisa joined with Pro Integration group followers of Besi
Merah Putih (BMP).
Given the requirements proposed by Pastor RAFAEL DOS SANTOS, Lettu Pol. JHON
EA went to Headquarters of Kodim 1638/Liquisa to report the requirements and
to report that the group of Pro Integration followers of Besi Merah Putih (BMP)
would launch an attack to Church of Liquisa area if until 12.00 WITA JACINTO
DA COSTA PEREIRA was not surrendered. The report of Lettu Pol. JHON REA was
witnessed by the Defendants who were in the Headquarters of Kodim 1638/Liquisa
at that time.
Responding to the report of Lettu Pol. JHON ERA, Deputy Commander of Korem
164/WD Kol. Inf. MUJIONO gathered in a meeting with ASEP KUSWANI as
Commander of Military District/1638 Liquisa, Drs. ADIOS SALOVA as Head of
Resort Police (Kapolres) Liquisa, LEONETO MARTINS as Bupati of Liquisa
Region, and Let.Kol Inf. YAYAT SUDRAJAT as Commander of Intelligent Task
Unit Tribuana VIII. The meeting appointed LEONETO MARTINS to deliver their
approval of Pastor RAFAEL DOS SANTOS' requirements, however LEONETO MARTINS
rejected it because he was afraid of being murdered if he should meet Pastor
RAFAEL DOS SANTOS.
Around 12.15 WITA while Lettu Pol. JHON REA was on his way to Church of
Liquisa area, gun shots were still heard from that location followed by an
attack to the Church of Liquisa area by the group of Pro Integration
followers of Besi Merah Putih (BMP) who was lead by MANUEL SOUSA and JOSE
AFAAT (Camat Maubara), soldiers of Tentara Nasional Indonesia (TNI) who are:
1. JOSE MATHEUS.; 2. TOME DIOGO.; 3. ABILIO ALVES.; 4. CARLOS (Danramil
Maubara).; 5. ANTONIO GOMES. ; 6. ISAK DOS SANTOS.; 7. GEORGE VIEGAS.; 8.
MAURISIO.; 9. JEFERINO.; 10. ZACARIAS.; 11. MANUEL MARTINS, and 12. JACOB.
And committed murder by shooting with fire arms, constructed fire arms,
stabbing with swords and samurai, releasing arrows, stabbing with knives and
beating with other violent weapons the refugees followers of Pro
Independence who were taking shelter in Pastor RAFAEL DOS SANTOS' residence
in the Church of Liquisa area, causing victims of 21 (twenty one) civilians
injured, i.e.:
1. JOSE RAMOS ; 2. FRANSISCO DOS SANTOS; 3. JOAO PEREIRA; 4. ABILIO DOS
SANTOS ; 5. JOSE NUNES SERRAO ; 6. LUCAS SOARESL 7. MATEUS PANLERO; 8.
RICARDO RODRIGUES PEREIRA; 9. LAKUMAU; 10. JANUARI; 11. FELIS; 12. JOAO KUDA;
13. ARMANDO; 14. ANTONIO; 15. LUIS; 16. EMILIO; 17. LUCAS DOS SANTOS; 18.
JOAO DOS SANTOS; 19. SEBASTIO; 20. RAMIRO; 21. MATIUS ALVES CORREIA;
Given the people who took refuge and sheltered in the Church of Liquisa area
at that time, the Defendant Asep Kuswani knew or given the situation at that
time should have known that soldiers of Tentara Nasional Indonesia (TNI)
under his command and effective control were perpetrating or had just
tortured the refugees taking shelter in Pastor Rafael Dos Santos' residence
in Church of Liquisa area, where that action is considered as gross
violation of Human Rights, but the Defendant Asep Kuswani did not take any
appropriate and necessary action under his power and authority to prevent or
stop those attacks, or after those attacks the Defendant Asep Kuswani did
not surrender the perpetrators to officials authorized to carry out
investigation, investigation dan give charges.
The behavior of the Defendant Asep Kuswani as described above is a gross
violation of Human Rights as regulated and given punishment in the
provisions of Article 42 verse (1) jis article 7 letter b, article 9 letter
h jis., article 40 Act No. 26 year 2000 about Human Rights Court.
SPECIFICALLY ON THE DEFENDANT DRS. ADIOS SALOVA
That the Defendant Drs. ADIOS SALOVA as Head of Resort Police Liquisa East
Timor, on Tuesday 6 April 1999, or at other times in the month of April year
1999, in the office of Military District Command 1638/Liquisa East Timor, or
at least in another place in Liquisa Region, East Timor, or in other places
where the Ad Hoc Human Rights Court of State Court Central Jakarta has the
authority to investigate and decide upon the case according to provision of
article 2 President Decree No. 96 Year 2001 dated 1 August year 2001, as a
superintendent who is legally responsible for the gross violations of Human
Rights committed by his subordinates under his authority and effective
control where the Defendant as the person in charge of security and order in
the region of Kabupaten Liquisa knew or neglected information that clearly
showed that his subordinates were perpetrating or had just perpetrated gross
violation of Human Right in the form of torture perpetrated as an action
committed as part of a wide or systematic attack aimed directly at civilians
but the Defendant Leoneto Martins did not do or take any appropriate and
necessary action under his authority to prevent or stop his subordinates'
actions or surrender the perpetrators to the officials authorized to carry
out investigation, investigation, and give charges, actions which were
carried out as follows:
Approaching the referendum in East Timor Province specifically in Kabupaten
Liquisa, security and order started to break up, resulting in feud, dispute
and conflict between Pro Independence group and Pro Integration group
followers of Besi Merah Putih (BMP) whose members then partially became
members of Pam Swakarsa.
The conflict, dispute and feud continued to spread, i.e. on 3 April 1999 the
Pro Independence group gave a threat of murder to the Pro Integration group
followers of Besi Merah Putih (BMP) in Desa Dato Kecamatan Liquisa Kabupaten
Liquisa.
On 4 April 1999 followers of Pro Independence who were lead by JACINTO DA
COSTA PEREIRA burned the houses of Pro Integration group followers of Besi
Merah Putih (BMP), because these followers of Besi Merah Putih (BMP) from
Pukelara and Maubara burned the house of FELISBERTO DOS SANTOS and murdered
his son named ELIDIO member of Pro Independence.
On 5 April 1999, for fear of being murdered by Pro Integration group,
followers of Pro Independence started to take refuge in Pastor RAFAEL DOS
SANTOS' residence in Church of Liquisa area, because Pastor HENRY from
Maubara had given information that Pro Integration group followers of Besi
Merah Putih (BMP) will come and attack Liquisa area.
That based on Pastor HENRY's information, Pro Independence group lead by
JACINTO DA COSTA PEREIRA and some of its members went to the border of
Maubara-Liquisa to anticipate the plan of attack of Pro Integration Group
followers of Besi Merah Putih (BMP), but when they met in Batu Blete, Pro
Integration group followers of Besi Merah Putih (BMP) assisted by Tentara
Nasional Indonesia (TNI) soldiers and members of Police of Republic of
Indonesia (Polri) had shot members of Pro Independence causing 2 (two)
victims dead and 7 (seven) people injured, among them JOSE from Hatu Kesi
and SIRILIO DOS SANTOS who was shot in his thigh.
Until 13.00 WITA followers of Pro Independence group from Maubara, Pukelara,
Liquisa and surrounding areas took refuge in Pastor RAFAEL DOS SANTOS'
residence in the Church of Liquisa area, amounting to +/- 2000 people and
soldiers of Tentara Nasional Indonesia (TNI) and members of Police of
Republic of Indonesia (Polri) and Pro Integration Group followers of Besi
Merah Putih (BMP) released shots to the air causing the refugees to panic
and become frightened.
At noon around 13.00 WITA, the Church of Liquisa area had been surrounded by
soldier of Tentara Nasional Indonesia (TNI) and member of Police of Republic
of Indonesia (Polri) who were then followed by the arrival of followers of
Besi Merah Putih (BMP) and they released shots to the air causing the
followers of Pro Independence from Maubara, Pukelara, Liquisa and
surrounding areas to become frieghtened and took refuge and sheltered in the
Church of Liquisa area.
Then on Tuesday, 6 April 1999, around 07.00 WITA + 300 people of Pro
Integration group followers of Besi Merah Putih (BMP) lead by MANUEL SOUSA
started to gather and surround Pastor RAFAEL DOS SANTOS' residence in Church
of Liquisa area, some brought fire arms, constructed fire arms, swords,
samurai, knives, bats, stabbing tools, arrows, or other violent weapons, and
they shouted to ask the refugees of Pro Independence to come out and leave
the Church area.
Around 08.00 a.m. Pastor RAFAEL DOS SANTOS was met by 2 (two) members of
Brimob named DAMIANUS DAPA and FRANSISKUS SALAMALI asking him to surrender
JACINTO DA COSTA and GREGORIO DOS SANTOS to Pro Integration group followers
of Besi Merah Putih (BMP), but the request was rejected by Pastor RAFAEL DOS
SANTOS for fear of them being murdered.
Around 11.30 WITA, 5 (five) members of Police of Republic of Indonesia (Polri)
lead by Lettu Pol. JHON REA came to Pastor RAFAEL DOS SANTOS' residence in
Church of Liquisa area to ask JACINTO DA COSTA be surrendered, where Pastor
RAFAEL DOS SANTOS was willing to surrender under the condition that JACINTO
DA COSTA PEREIRA and his friends are taken to Polda East Timor in Dili and
followers of Besi Merah Putih (BMP) are pulled out of Liquisa.
At that time Pro Integration group followers of Besi Merah Putih (BMP)
threatened the refugees by yelling "leave this area, or a second group will
come, even if you are inside the Church, we will attack the church later at
01.00 WITA", while throwing stones into Pastor RAFAEL DOS SANTOS' residence
in the Church of Liquisa area which was surrounded by a gate wall, thus
creating a fearful and frightening situation because soldiers of Tentara
Nasional Indonesia (TNI) from Kodim 1638/Liquisa and members of Brimob/Polri
from Polres Liquisa joined with Pro Integration group followers of Besi
Merah Putih (BMP).
Given the requirements proposed by Pastor RAFAEL DOS SANTOS, Lettu Pol. JHON
EA went to Headquarters of Kodim 1638/Liquisa to report the requirements and
to report that the group of Pro Integration followers of Besi Merah Putih (BMP)
would launch an attack to Church of Liquisa area if until 12.00 WITA JACINTO
DA COSTA PEREIRA was not surrendered. The report of Lettu Pol. JHON REA was
witnessed by the Defendants who were in the Headquarters of Kodim 1638/Liquisa
at that time.
Responding to the report of Lettu Pol. JHON ERA, Deputy Commander of Korem
164/WD Kol. Inf. MUJIONO gathered in a meeting with ASEP KUSWANI as
Commander of Military District/1638 Liquisa, Drs. ADIOS SALOVA as Head of
Resort Police (Kapolres) Liquisa, LEONETO MARTINS as Bupati of Liquisa
Region, and Let.Kol Inf. YAYAT SUDRAJAT as Commander of Intelligent Task
Unit Tribuana VIII. The meeting appointed LEONETO MARTINS to deliver their
approval of Pastor RAFAEL DOS SANTOS' requirements, however LEONETO MARTINS
rejected it because he was afraid of being murdered if he should meet Pastor
RAFAEL DOS SANTOS.
Around 12.15 WITA while Lettu Pol. JHON REA was on his way to Church of
Liquisa area, gun shots were still heard from that location followed by an
attack to the Church of Liquisa area by the group of Pro Integration
followers of Besi Merah Putih (BMP) who was lead by MANUEL SOUSA and JOSE
AFAAT (Camat Maubara), soldiers of Tentara Nasional Indonesia (TNI) and
members of Police of Republic of Indonesia (POLRI), among them are Alfonso
and Chico from Resort Police Liquisa, and committed torture by shooting with
fire arms, constructed fire arms, stabbing with swords and samurai,
releasing arrows, stabbing with knives and beating with other violent
weapons the refugees followers of Pro Independence who were taking shelter
in Pastor RAFAEL DOS SANTOS' residence in the Church of Liquisa area,
causing victims of 21 (twenty one) civilians injured, i.e.:
1. JOSE RAMOS ; 2. FRANSISCO DOS SANTOS; 3. JOAO PEREIRA; 4. ABILIO DOS
SANTOS ; 5. JOSE NUNES SERRAO ; 6. LUCAS SOARESL 7. MATEUS PANLERO; 8.
RICARDO RODRIGUES PEREIRA; 9. LAKUMAU; 10. JANUARI; 11. FELIS; 12. JOAO KUDA;
13. ARMANDO; 14. ANTONIO; 15. LUIS; 16. EMILIO; 17. LUCAS DOS SANTOS; 18.
JOAO DOS SANTOS; 19. SEBASTIO; 20. RAMIRO; 21. MATIUS ALVES CORREIA;
Given the people who took refuge and sheltered in the Church of Liquisa area
at that time, the Defendant Drs. Adios Salova knew or given the situation at
that time should have known that member of POLRI under his command and
effective control were perpetrating or had just tortured the refugees taking
shelter in Pastor Rafael Dos Santos' residence in Church of Liquisa area,
where that action is considered as gross violation of Human Rights, but the
Defendant Drs. Adios Salova did not take any appropriate and necessary
action under his power and authority to prevent or stop those attacks, or
after those attacks the Defendant Drs. Adios Salova did not surrender the
perpetrators to officials authorized to carry out investigation,
investigation dan give charges.
The behavior of the Defendant Drs. Adios Salova as described above is a
gross violation of Human Rights as regulated and given punishment in the
provisions of Article 42 verse (2) jis article 7 letter b, article 9 letter
h, article 40 Act No. 26 year 2000 about Human Rights Court.
SPECIFICALLY ON THE DEFENDANT LEONETO MARTINS
That the Defendant LEONETO MARTINS as Bupati of Liquisa Region, East Timor,
on Tuesday 6 April 1999, or at other times in the month of April 1999, in
the office of Military District Command 1638/Liquisa East Timor or in other
places where the Ad Hoc Human Rights Court of State Court Central Jakarta
has the authority to investigate and decide upon the case according to
provision of article 2 President Decree No. 96 Year 2001 dated 1 August year
2001, as a superintendent the Defendant is legally responsible for the gross
violations of Human Rights committed by his subordinates under his authority
and effective control where the Defendant Leoneto Martins as the person in
charge of governance and development in the region of Kabupaten Liquisa knew
or consciously neglected information that clearly showed that his
subordinates were perpetrating or had just perpetrated gross violation of
Human Right in the form of torture perpetrated as an action committed as
part of a wide or systematic attack aimed directly at civilians but the
Defendant Leoneto Martins did not do or take any appropriate and necessary
action under his authority to prevent or stop his subordinates' actions or
surrender the perpetrators to the officials authorized to carry out
investigation, investigation, and give charges, actions which were carried
out as follows:
Approaching the referendum in East Timor Province specifically in Kabupaten
Liquisa, security and order started to break up, resulting in feud, dispute
and conflict between Pro Independence group and Pro Integration group
followers of Besi Merah Putih (BMP) whose members then partially became
members of Pam Swakarsa.
The conflict, dispute and feud continued to spread, i.e. on 3 April 1999 the
Pro Independence group gave a threat of murder to the Pro Integration group
followers of Besi Merah Putih (BMP) in Desa Dato Kecamatan Liquisa Kabupaten
Liquisa.
On 4 April 1999 followers of Pro Independence who were lead by JACINTO DA
COSTA PEREIRA burned the houses of Pro Integration group followers of Besi
Merah Putih (BMP), because these followers of Besi Merah Putih (BMP) from
Pukelara and Maubara burned the house of FELISBERTO DOS SANTOS and murdered
his son named ELIDIO member of Pro Independence.
On 5 April 1999, for fear of being murdered by Pro Integration group,
followers of Pro Independence started to take refuge in Pastor RAFAEL DOS
SANTOS' residence in Church of Liquisa area, because Pastor HENRY from
Maubara had given information that Pro Integration group followers of Besi
Merah Putih (BMP) will come and attack Liquisa area.
That based on Pastor HENRY's information, Pro Independence group lead by
JACINTO DA COSTA PEREIRA and some of its members went to the border of
Maubara-Liquisa to anticipate the plan of attack of Pro Integration Group
followers of Besi Merah Putih (BMP), but when they met in Batu Blete, Pro
Integration group followers of Besi Merah Putih (BMP) assisted by Tentara
Nasional Indonesia (TNI) soldiers and members of Police of Republic of
Indonesia (Polri) had shot members of Pro Independence causing 2 (two)
victims dead and 7 (seven) people injured, among them JOSE from Hatu Kesi
and SIRILIO DOS SANTOS who was shot in his thigh.
Until 13.00 WITA followers of Pro Independence group from Maubara, Pukelara,
Liquisa and surrounding areas took refuge in Pastor RAFAEL DOS SANTOS'
residence in the Church of Liquisa area, amounting to +/- 2000 people and
soldiers of Tentara Nasional Indonesia (TNI) and members of Police of
Republic of Indonesia (Polri) and Pro Integration Group followers of Besi
Merah Putih (BMP) released shots to the air causing the refugees to panic
and become frightened.
At noon around 13.00 WITA, the Church of Liquisa area had been surrounded by
soldier of Tentara Nasional Indonesia (TNI) and member of Police of Republic
of Indonesia (Polri) who were then followed by the arrival of followers of
Besi Merah Putih (BMP) and they released shots to the air causing the
followers of Pro Independence from Maubara, Pukelara, Liquisa and
surrounding areas to become frieghtened and took refuge and sheltered in the
Church of Liquisa area.
Then on Tuesday, 6 April 1999, around 07.00 WITA +/- 300 people of Pro
Integration group followers of Besi Merah Putih (BMP) lead by MANUEL SOUSA
started to gather and surround Pastor RAFAEL DOS SANTOS' residence in Church
of Liquisa area, some brought fire arms, constructed fire arms, swords,
samurai, knives, bats, stabbing tools, arrows, or other violent weapons, and
they shouted to ask the refugees of Pro Independence to come out and leave
the Church area.
Around 08.00 a.m. Pastor RAFAEL DOS SANTOS was met by 2 (two) members of
Brimob named DAMIANUS DAPA and FRANSISKUS SALAMALI asking him to surrender
JACINTO DA COSTA and GREGORIO DOS SANTOS to Pro Integration group followers
of Besi Merah Putih (BMP), but the request was rejected by Pastor RAFAEL DOS
SANTOS for fear of them being murdered.
Around 11.30 WITA, 5 (five) members of Police of Republic of Indonesia (Polri)
lead by Lettu Pol. JHON REA came to Pastor RAFAEL DOS SANTOS' residence in
Church of Liquisa area to ask JACINTO DA COSTA be surrendered, where Pastor
RAFAEL DOS SANTOS was willing to surrender under the condition that JACINTO
DA COSTA PEREIRA and his friends are taken to Polda East Timor in Dili and
followers of Besi Merah Putih (BMP) are pulled out of Liquisa.
At that time Pro Integration group followers of Besi Merah Putih (BMP)
threatened the refugees by yelling "leave this area, or a second group will
come, even if you are inside the Church, we will attack the church later at
01.00 WITA", while throwing stones into Pastor RAFAEL DOS SANTOS' residence
in the Church of Liquisa area which was surrounded by a gate wall, thus
creating a fearful and frightening situation because soldiers of Tentara
Nasional Indonesia (TNI) from Kodim 1638/Liquisa and members of Brimob/Polri
from Polres Liquisa joined with Pro Integration group followers of Besi
Merah Putih (BMP).
Given the requirements proposed by Pastor RAFAEL DOS SANTOS, Lettu Pol. JHON
EA went to Headquarters of Kodim 1638/Liquisa to report the requirements and
to report that the group of Pro Integration followers of Besi Merah Putih (BMP)
would launch an attack to Church of Liquisa area if until 12.00 WITA JACINTO
DA COSTA PEREIRA was not surrendered. The report of Lettu Pol. JHON REA was
witnessed by the Defendants who were in the Headquarters of Kodim 1638/Liquisa
at that time.
Responding to the report of Lettu Pol. JHON ERA, Deputy Commander of Korem
164/WD Kol. Inf. MUJIONO gathered in a meeting with ASEP KUSWANI as
Commander of Military District/1638 Liquisa, Drs. ADIOS SALOVA as Head of
Resort Police (Kapolres) Liquisa, LEONETO MARTINS as Bupati of Liquisa
Region, and Let.Kol Inf. YAYAT SUDRAJAT as Commander of Intelligent Task
Unit Tribuana VIII. The meeting appointed LEONETO MARTINS to deliver their
approval of Pastor RAFAEL DOS SANTOS' requirements, however LEONETO MARTINS
rejected it because he was afraid of being murdered if he should meet Pastor
RAFAEL DOS SANTOS.
Around 12.15 WITA while Lettu Pol. JHON REA was on his way to Church of
Liquisa area, gun shots were still heard from that location followed by an
attack to the Church of Liquisa area by the group of Pro Integration
followers of Besi Merah Putih (BMP) of + 300 people, among them are:
1. CRISPIN DA COSTA PEREIRA; 2. ALFONSO; 3. MIGUANA; 4. VIKTOR; 5. FRANSISCO;
6. JOAO LOU MESA; 7. MOUREGO; 8. FERNANDO; 9. AKUBOU; 10. TEDI; 11. ROMALDO;
12. MASERNA; lead by MANUEL SOUSA and JOSE AFAAT (Camat Maubara), soldiers
of Tentara Nasional Indonesia (TNI) and members of Police of Republic of
Indonesia (POLRI), among them are Alfonso and Chico from the Resort Police
of Liquisa and committed torture by shooting with fire arms, constructed
fire arms, stabbing with swords and samurai, releasing arrows, stabbing with
knives and beating with other violent weapons the refugees followers of Pro
Independence who were taking shelter in Pastor Rafael Dos Santos' residence
in the Church of Liquisa area, thus, Lettu Pol. Jhon Rea recalled his
intention of meeting Pastor Rafael Dos Santos to deliver the message of the
Defendant Leoneto Martin, Asep Kuswani and Drs. Adios Salova, causing
victims of 21 (twenty one) civilians injured, i.e.:
1. JOSE RAMOS ; 2. FRANSISCO DOS SANTOS; 3. JOAO PEREIRA; 4. ABILIO DOS
SANTOS ; 5. JOSE NUNES SERRAO ; 6. LUCAS SOARESL 7. MATEUS PANLERO; 8.
RICARDO RODRIGUES PEREIRA; 9. LAKUMAU; 10. JANUARI; 11. FELIS; 12. JOAO KUDA;
13. ARMANDO; 14. ANTONIO; 15. LUIS; 16. EMILIO; 17. LUCAS DOS SANTOS; 18.
JOAO DOS SANTOS; 19. SEBASTIO; 20. RAMIRO; 21. MATIUS ALVES CORREIA;
while the Defendant Leoneto Martins knew or consciously neglected
information that clearly showed that his subordinate Jose Afaat (Camat
Maubara) and the group of Pro Integration followers of Besi Merah Putih (BMP)
a mass organisation under the training of the Local Government of Kabupaten
Liquisa were perpetrating or had just perpetrated torture towards the
refugees taking shelter in Pastor Rafael Dos Santos' residence in the Church
of Liquisa area ,where this action is considered as gross violation of Human
Rights, but the Defendant Leoneto Martins did not take or do any appropriate
and necesarry actions under his power and uthority to prevent or stop those
actions, or after those attacks the Defendant Leoneto Martins did not
surrender the perpetrators to the officials authorized to carry out
investigation, investigation, and give charges.
The behavior of the Defendant Leoneto Martins as described above is a gross
violation of Human Rights as regulated and given punishment in the
provisions of Article 42 verse (2) jis article 7 letter b, article 9 letter
h, article 40 Act No. 26 year 2000 about Human Rights Court.
Considering, that evidence had been presented in the trial, which are:
1. Photo Copy of special report No. R / 184 / Lapsus / IV / 1999 / dated 7
April 1999;
2. Photo Copy of Crime Scene Statement 2 July 2000;
3. 6 (six) pictures of Liquisa Church area.
Considering, that witnesses had been presented in the trial to give their
information under oath according to their religion, where the basic points
are as follows:
1. Witness ANTONIO DA CONCEICAO SANTOS:
- That the witness knew the Defendant I, as Dandim, Defendant II as Kapolres
and Defendant III as Bupati in Liquisa;
- That the witness knew Pastor Rafael and lived together with him in his
residence in the Church of Liquisa areal;
- That on 4 April 1999 there were riot in Maubara Liquisa between mass of
Pro independence and mass of Besi Merah Putih (BMP);
- That on 5 April 1999 the citizens came to Church of Liquisa area,
residence of Pastor RAFAEL DOS SANTOS because they were frightened and
wanted to take shelter following the threat from Besi Merah Putih because on
4 April 1999 BMP Militia from Pukelara had destroyed Felis Berto Dos Santos'
house and burned the citizens' houses.
- That on 6 April 1999 since morning, citizens around Liquisa came to the
Church of Liquisa area to find shelter in a safe place;
- That on 6 April 1999, Besi Merah Putih militia together with the police
had surrounded the area outside the gate of Church of Liquisa.
- That Besi Merah Putih brought samurais, swords, and weapons an attacked
inside the Church helped by people in strip clothes.
- That those who attacked inside the Church were Besi Merah Putih and
members of Koramil Maubara, but the witness did not know their names;
- That the location of the Church area is near the Office of Kodim Liquisa.
- That when the Church was being surrounded, TNI and Police were seen to
take guard, but the Police did not prevent the attacks on the Church.
- That as a result of that attack, the witness witnessed some people dead
and many injured;
- That one of the people who attacked whom the witness knew was a TNI named
Tome Diego from Kodim Liquisa and he brought fire arms;
- That the witness survived because he claimed that he wanted autonomy and
then he was taken to Kodim, if he didn't say he wanted autonomy he would be
killed;
- That the witness was then ordered to go to Bupati Leoneto Martins'
residence and there he witnessed people dead and injured;
- That the attack on Church of Liquisa area started from noon until 17.00
WITA.
2. Witness JULIO DE SOUSA:
- That on 7 April 1999, the witness had buried 5 (five) bodies brought by
Witness JOSE AFAAT as Camat Maubara and Dan Ramil CARLOS and Manuel Sausa as
Dan Yon Besi Merah Putih;
- That those bodies were brought using a vehicle (mikrolet) owned by Koramil
and another vehicle (Kijang) owned by Camat JOSE AFAAT;
- That the witness know one of the people who died named LEONEL because he
was still relatives with the witness;
- That those bodies were received when the witness was in the security post
at night around 19.00 Wita, all bodies were covered with blood;
- That according to the news the witness heard, if a person did not join
Besi Merah Putih then he/she would be killed;
- That the burial of the five bodies were attended by Muspida, Camat and Dan
Ramil.
3. Witness JHON REA:
- That the witness is a member of POLRI and sits as Kapusdalops as Liquisa
Polres;
- It is true that on 5 April 1999 houses of pro integration civilians were
burnt down by mass lead by Head of Village Dato named Jacinta Da Costa
Pereira;
- That people knew that Jacinto was taking shelter in Pastor Rafael Dos
Santos' residence located inside the Church of Liquisa area;
- It is true that on 5 April 1999 many people came to the Church of Liquisa
area because they were frightened of a clash among citizens;
- That under the order of Defendant II as Kapolres Liquisa, on 6 April 1999
the witness came to meet Pastor Rafael Dos Santos to negotiate for the
surrender of Jasinto to Polres Liquisa so that he could be held accountable
for his actions, but Pastor answered that he would surrender Jasinto under
the condition that Muspida takes him away on their own and Jasinto would go
through the process in Polda Dili and that the followers of Besi Merah Putih
would be pulled out of the Church of Liquisa area.
- That the requirements that the Pastor requested were informed to Defendant
II, Defendant I, Defendant III and Wadan rem in the office of Kodim Liquisa.
And then Wadan Rem assigned Defendant III Leoneto Martins to meet Pastor,
but Defendant III rejected for fear of being murdered;
- That over the rejection of Defendant III, the witness was assigned back to
meet Pastor, but he didn't accomplish it as on his way to the Church area,
gun shots fired by people clashing were heard coming from the direction of
the Church;
- That after the clash stopped in the afternoon, the witness was ordered by
Kapolres Adios Salova to bring 5 (five) bodies, who were victims of the
assault in the Church Area, from Kodim to the hospital for examination;
- That the witness then found out that the victims' bodies were buried in
Maubara by Camat Baubara named Jose Afat;
4. Witness LUCAS SOARES:
- That on 5 April 1999, the witness went to Church of Liquisa Area to Pastor
Rafael Dos Santos' residence to look for protection because the situation
was not safe anymore.
- That by the time the witness arrived at the Church area, he saw thousands
of citizens Pro Independence taking refuge in the Church Area.
- That on 6 April 1999 on Tuesday around 13.00 Wita, an attack occurred on
the Church of Liquisa area, where the witness witnessed the attack because
he was taking shelter beside Pastor Rafaels Dos Santos' room together with
his father in law.
- (unclear) … taking shelter consist of children, men, women and seniors who
were all frightened because they felt that the house was not safe anymore.
- That on 6 April 1999 since noon, the Church area has been surrounded by
followers of Besi Merah Putih who were bringing constructed weapons, spears
and arrows.
- That on 6 April 1999 noon, Eurico Gutteres came to meet Pasto Rafael Dos
Santos to talk about the repatriation of the refugees to their homes and
then Eurico Gutteres went to meet Bupati Leoneto Martins;
- That around 13.00 Wita, gunshots were heard from outside the Church Area
and the witness heard the refugees screaming and crying and the windows of
Pastor Rafael Dos Santos' house were being shot.
- That when the shots were released the witness ran out to save himself and
after he was aside he was hit by a sword and almost killed and he was beaten
with a gun by a person wearing military uniform whom the witness knew as
Dominggus from Maubara.
- That as a result of the assault by Besi Merah Putih, from outside the
Church the witness heard that 5 (five) people were dead.
- That during the attack in the Church Area on 6 April 1999, the witness saw
military and Police officers who were taking guard and just standing and did
not attempt to separate the people or prevent the attack in the Church.
- That the number of Police officers and Brimob and TNI who were taking
guards were fewer compared to the people gathered in Pastor Rafael's
residence or the followers of Besi Merah Putih;
- That as far as the witness's knowledge, after the event in the Church,
there had been arrests and investigation on few people who were perpetrators
of the riot, the cases of these people had been investigated and given a
verdict.
5. Witness DAMIANUS DAPA:
- That the witness is a Police member of Polres Liquisa;
- That on 5 April 1999, riots happened and Jacinto Da Costa Pereira as head
of Dato village lead people to burn down civilians' houses in Maubara;
- That after the burning down of civilians' houses on 5 April 1999, the
Kapolres Adios Salova ordered the witness to have patrol and security at
Pastor Rafael's residence.
- That the witness saw many people from Besi Merah Putih group gathering and
shouting from outside the Church Area demanding that Jacinto Pereira be
surrendered to authorities;
- That on 6 April 1999, Defendant II as Kapolres ordered the witness and Lt.
Pol. Frans Salamali to check whether Jacinto is in the Church Area residence
of Pastor Rafael, then the witness came to the Church Area to negotiate with
Pastor Rafael, demanding that Jacinto be surrendered to Polres, but Pastor
Rafael did not agree for fear of being murdered, although the witness
guaranteed that Jacinto would not be killed but Pastor Rafael still did not
allow Jacinto to be taken outside.
- That after the witness failed to bring Jacinto out of the Church Area
residence of Pastor Rafael, the witness returned to Polres Liquisa
headquarters and reported to Kapolres Adios Salova that Pastor Rafael did
not allow him to take Jacinto out.
- That based on the witness' report, Kapolres Adios Salova assigned Lt. Pol.
JOHN REA to negotiate with Pastor Rafael and then ordered the witness to
stay in Polres Liquisa headquarters.
- It is true that on 6 April 1999 there were clashes between groups around
Pastor Rafael's residence but the witness did not know what goups were
clashing;
- That the number of people gathering and fighting are more then the number
of Police and Brimob guarding;
- That after the clashes, the witness heard that there were 5 (five) people
who died in the Church Area residence of Pastor Rafael.
- That the witness did not know any TNI member named Tome Diego, Iskak and
Jacob.
- That the witness knew Alfonso as a dismissed police member.
- That the reason the witness withdraw part of his information in the
dossier is because during that time the witness was in a instable condition.
6. Witness EURICO GUTTERES:
- That the witness knew Pastor Rafael Dos Santos who lives in Church of
Liquisa residence area;
- That on 6 April 1999, the witness came to Liquisa and met Pastor Rafael
and talked for around 20 minutes in the yard of Pastor Rafael's residence in
the Church area;
- That upon Archbishop Belo's request, the witness asked Pastor Rafael "What
is happening", but Pastor answered "How come Leoneto Martins in Maubara is
allowed while we're not", the witness did not understand what Pastor meant
because he kept on talking in Maubara language which the witness did not
understood and then the witness left that place;
- That when they met with Pastor Rafael to discuss that the people in the
Church area could return to their homes but it was not allowed by Pastor so
the witness returned back;
- That on 6 April 1999 the witness saw and helped carry 5 (five) victims who
died in the Church Area to be taken to Kodim Liquisa, after there were
clashes between people inside the Church Area and those outside it;
- That Manuel Saosa was the leader of Besi Merah Putih in Liquisa who was
Pro Integration.
7. Witness Lt.Col. Inf. YAYAT SUDRAJAT:
- That the witness was Dan Satgas Tribuana VII assigned in Dili;
- It is true that on 6 April 1999, Dan Rem ordered the witness to escort
Wadan Rem leaving from Dili to monitor the situation to Liquisa and meet
with Dan-dim Kapolres and Bupati of Liquisa between 10.00 - 11.00 Wita.
- That a while after arriving at Kodim, Wadan Rem asked what happened and
found out that there were a warming situation between the people who were
Pro-Integration and those Anti-Integration around Pastor Rafael's residence.
- That in the meeting at Kodim office, the possibility of holding
negotiations with Pastor Rafael was discussed; but at the time of the
meeting, at 12.00 wita, gunshots were heard and then the meeting at Kodim
was dismissed.
- That when the meeting at Kodim was dismissed, the witness did not know
where Dan Dim Asep Kuswani, Kapolres Adios Salova and Leoneto Martins went.
- That when the witness went out of Kodim, the witness witnessed clashes in
the street in front of Kodim between people who brought swords and he saw
people being hit and many were wounded
- That during the clashes, the Police and Brimob assisted by TNI members
tried to prevent those clashes;
- That the witness did not see and never heard news stating that members of
POLRI, Brimob or TNI were involved in the clashes;
- That as a result of the clases, the witness saw a wounded child and then
carried that child so that there was blood stains of the victim on his
clothes;
- That after the clashes, the witness heard that there were 5 (five) victims
who died in the Church Area residence of Pastor Rafael;
- That after the situation calmed down, the witness returned to Dili
together with the Dan Ren's group.
8. Witness Frans Salamali:
- That the witness was Dan Tun Brimob that got B.K.O. at Liquisa Polres with
his 29 members and Kapolres Adios Salova ordered them to guard Pastor
Rafael's residence because there were conflicting groups.
- That the witness knew defendant I Asep Kuswani as Dan Dim Liquisa and
Defendant II Adios Salova as Kapolres Liquisa, but did not know defendant
Leoneto Martins.
- That on 6 April 1999 07.00 Wita, the witness and his troops arrived at
Pastor Rafael's residence area, and then saw many people dressed differently
gathering around Pastor Rafael's residence, all were male adults, some were
dressed in stripes and some were dressed in black and blue, they were
members of Besi Merah Putih led by Manuel Sousa;
- That the witness then talked to Manuel Sousa persuading him not to attack
inside the Church area while stating that "those inside are our brother",
but Manuel Sousa did not heed the witness and continued to shout with
members of his group asking Jacinto Pareira be surrendered to the
authorities;
- That Kapolres ordered the witness to coordinate with Lt. Pol. Damianus who
was meeting Pastor and persuading the people inside the Pastor's residence
area to be allowed home and the witness heard that Jacinto was inside the
residence.
- That when the witness and Lt. Pol. Damianus talked to Pastor Rafael, the
witness saw many people inside Pastor's residence area, they were children,
women and seniors.
- That the witness saw that the people inside the Church area were unarmed.
- That when the witness was on duty all day outside the Church area, he saw
that the people outside held guard, if those inside did not come out they
would come in and attack at 12.00 Wita.
- That at first the witness did not see any weapons in Besi Merah Putih
group, but when gunshots were heard, then Besi Merah Putih group led by
Manuel Sousa moved to attack into Pastor Rafael's residence using
traditional weapons such us samurai, spears and wooden bats;
- That the witness tried to hold them, but those outside continued to enter
because there were too many of them compared to the guards, and they
attacked brutally and the witness say them carrying weapons, swords, spears,
etc.
- That the witness did not see any TNI member at that time.
- That during the incident, the witness did not see Kapolres or Dan Dim or
Bupati there.
9. Witness JOSE AFAT:
- That the witness was Camat Maubara since 1995 until 1999.
- That the witness knew about the establishment of Pam Swakarsa in Maubara
to secure their own regions and it was under the Bupati's instruction.
- That the witness knew about the existence of Pro Independence group and
Pro Integration group formed by the people themselves.
- That the witness knew about the existence of Pro Integration group named
Besi Merah Putih with unclear number of members led by Manuel Sousa.
- That since 3 April 1999 until 6 April 1999, the witness was in Kafemenanu
to visit his family.
- That the witness heard that Pro Independence group attacked Maubara and
was revenged by Pro Integration and the people ran and took refuge in The
Church Area, before 6 April 1999 knew about this based on his staff's
reports;
- That the witness knew about the establishment of Pamswakarsa based on the
Governor's written Instruction to the Bupati.
- That Pam Swakarsa is different from Besi Merah Putih;
- That on 6 April 1999 around 18.30 Wita, the witness received 5 (five)
bodies to be buried at Maubara brought with a truck from Liquisa and they
were victims of attacks in the Church Area residence of Pastor Rafael.
- That the burial of the 5 (five) bodies, victims of the attack on Father
Rafael's residence, was under the instruction and agreement between Pupate
and member of Muspida and attended by member of DPR Maubara citizen.
10. Witness Letkol Mujiono:
- That the witness knew Defendant I, II, III as Muspida in Liquisa;
- That the witness have met The defendants when the witness as Wadanrem Dili
East Timor since June 1998 - May 1999;
- That the witness knew that the referendum will instigate two groups Pro
Integration and Pro Independence;
- That when the witness was Wadanrem public order was maintained and
security problem was taken care by law enforcement;
- That Pam Swakarsa was a group of East Timor people, but the witness did
not know who fund Pam Swakarsa
- That the witness has heard WANRA from member of the society; the
difference between Pam Swakarsa and Wanra was Wanra trained by TNI.
- That KAMRA was trained by TNI, performed by POLRI.
- That in Pam Swakarsa, WANRA, and KAMRA there were no rank and chain of
command;
- That the witness was ordered by Danrem to go to Liquisa to verify the
report about increasing tension in Liquisa caused by mass refuge to Father
Rafael's residence in church of Liquisa area. Meanwhile the witness
accompanied by 2 (two) armed units of TNI soldier;
- That the witness arrived in Liquisa around 12.00 Wita and went to Makodim
welcomed by The defendants and the witness received the report from Dandim
about the attack.
- That the witness received a report that there were 5 (five) people dead in
the attack, one of them are TNI soldier in Dili Serda Sofyan and the witness
did not have a chance to see.
- That the witness heard a report there were action to guard the church area
and successfully manage to prevent Pro Integration group draw near to Pro
Independence group and it was conducive at the beginning but failed because
of the gunshots.
11. Expert Witness Dr. A.S. Tambunan, SH.:
- That about responsibility of Commandant in TNI based on Military Doctrine
where Commandant responsible for anything done or not being done by his unit
of army. But this doctrine does not cover law responsibility.
- That law infringement happened is a personal responsibility of the
perpetrator him/herself.
- That if the infringements happen in order to perform the military duty,
resulted in obliteration of people's property, the loss of human life, and
any other detriments, then it is a State responsibility;
- That military responsibility is not the same with judicial responsibility,
whether civil or criminal;
- That in the military apply verbal or literal order that have equal power,
if the order is simple not complicated and easy to understand, and if the
order meant to fulfill military purpose then the responsibility of the
action conduct is in the State.
- That the content of an order have to be complete and clear, thus if this
was not fulfilled and something happened then person who give the order is
responsible of the mistakes and otherwise if the order has already complete
and clear, then the receiver mistaken the order therefore responsibility
lies in the receiver's hand.
- That in the case happened in Liquisa East Timor, as long as there is Polri
then Polri is the one who must come first in accordance with New York
agreement signed by The Government of Republik Indonesia, although TNI was
providing help but responsibility still lies in Polri.
12. Witness a de charge KAPTEN JOKO WALUYO:
- That the witness is a member of Military District Command and sits as
Pasiter;
- That the witness saw the commotion happened in church of Liquisa area at
noon on 6 April 1999;
- That based on order from The defendant I, the witness rescued Father
Rafael who was still in seminary, helped by Catholic Youths (MUDIKA) through
the back way to avoid the mass and brought to Makodim and Father Rafael was
strictly protected by his member.
- That the witness previously saw there were about 500 mass gather around;
- That personnel who secure the location in seminary were Polri and Brimob
added by member of Military District Command t;
- That during the flag ceremony Dandim ordered all members not to go
anywhere and helped to maintain security and use PDH uniform.
- That the witness only heard that 5 (five) victims were dead and more than
20 (twenty) people were injured;
13. Witness a de charge CHARLOS AMAREL:
- That the witness knew Defendants I, II, III during his task in Liquisa
year 1993 - September 1999. The witness was sits as Danramil Maubara since
year 1996 until 1999;
- That when the riot happened in church of Liquisa area, the witness was in
Salatiga, off-duty;
- That when the witness returned on 20 April 1999 the witness received a
report from Suparno that there were riot happened in Liquisa, and Wadanramil
had helped the burial of 5 (five) dead victims from the riot in Liquisa;
- That the witness knew member of Military District Command, Tomi Diego,
that has passed away in 1996. Killed by member of CNRT, the witness knew
Tomi Diego last sits as Kopral in Asumaro.
- That there were no reports mentions about member of Danramil takes part in
that riot.
- That the witness do not recognize and do not know Yose Manthius, Abilio
Martez, Chivas Do Santos.
14. Witness a de charge AGUSTINUS SANTOS ALFRED:
- That the witness as civil officer in Pemda Liquisa knew Defendants I, II,
III;
- That the witness heard about the commotion in the seminary on 5 April 1999
when a lot of people gathered, and on 6 April 1999 there was a riot in
Father Rafael residence located INSIDE the church of Liquisa area;
- That the witness ordered by Bupati to help the refugees who left Father
Rafael's church.
- That during the dispute, the witness was in the church area and the
witness saw police officers were guarding. After the dispute, there were
gunshots and police officers tried to separate the mass including the
witness himself.
- The witness heard that 5 people were dead, and 20 people were injured;
- That the witness never heard any member of TNI or Polri involved during
the commotion in Father's residence;
- That when Father Rafael was in Military District Command, there was no
attack from the mass.
- That the witness do not know Zakaria, etc and member of Military District
Command and Polres.
- That the witness knew Carlos Amarel and did not see Carlos Amarel.
15. Witness a de charge ORLANO ALFONSO DOS SANTOS:
- That the witness knew the defendant III since year 1999, because the
witness was finance staff in Pemda Liquisa.
- That the witness in April 1999 was in Liquisa and in the official
residence of The defendant III;
- That the witness knew there was a commotion in the church of Liquisa area
when the witness helps around 20 injured riots victim in Bupati's residence.
- That on 6 April 1999, as far as the witness knew, the defendants were in
Military District Command Liquisa.
- The witness knew that around 1000 people took refuge in Bupati's residence.
16. Witness a de charge JACKY ANWAR MAKARIM:
- That the witness knew the defendants when sits as member of General
Inspector ABRI Liquisa 17 April 1999.
- That the witness was several times coming to Liquisa before 17 April 1999
as a member of YSPH.
- That the witness went to Liquisa to clarify the incident in Liquisa
ordered by Pangab.
- That the witness had verify the report from Catholic Church that the
attack was done by member of TNI to church bring about 25 victims, the fact
based on the witness clarification with public in Liquisa, the attack was
between Pro Integration group and Pro Independence group, also based on
reports from another sources;
- That during his visit to Liquisa the witness received answers from this 3
points below:
- Were there any TNI members involved?
- Is that true that there were 5 people dead and 25 people injured?
- Were there any gunshots from Father Rafael's residence?
- That the witness did field observation, interview when doing clarification
in Liquisa.
- That the witness found some clues on a very keen peace effort from law
enforcement and the security is considered sufficient from police officers
by securing the crime scene from dispersion and the witness did not see
directly, just found some evidence from the investigation.
- That the witness observed directly to Father Rafael's residence and found
a projectile of standard military bullet from inside church to outside.
- That the team of General Inspector ABRI did a separate clarification on
groups.
- That the clarification conclude:
- There were no member of TNI involved in the commotion;
- There were 5 (five) dead victims and 25 (twenty five) injured victims;
- There were gunshots from Father's residence that trigger the riot;
- That victim from TNI is Sersan Sofyan from Kopasus who was shot in the
chest;
- That the witness was informed there was a tough negotiation from officers,
but during the process of negotiation there were gunshots from Father's
residence that trigger the riot.
17. Witness a de charge CARLO BRIX TEWU:
- That the witness sits as Direktur Reserse of East Timor.
- That from investigation there were 3 suspects from people of Liquisa
processed in Polda East Timor throughout the riot on 6 April 1999 in church
of Liquisa area;
- That the suspects were not yet brought into court, just to the prosecutor.
- That process of making the suspect's dossier take quite a long time
because there were other cases to handle.
- That there were around 20 people as witnesses and 3 people as suspects
with 5 dead victims and around 20 injured victims.
- That the witness does not remember names of the suspect, while evidence
found out was about 10 constructed weapons, and other weapon like knifes and
spears;
Witness a de charge ANAMIS LOPEZ:
- That the witness knew The defendants I, II, III but has no family
relationship;
- That the witness on 5 April and 6 April 1999 was in Liquisa with his/her
family;
- That the witness as part of Pro Integration group knew about the riot
between Pro Integration group and Pro Independence of East Timor;
- That at that time the witness heard his/her family was kidnapped and
forced to come into church of Liquisa by people from Pro Independence group.
- That when the witness was looking for his/her family on 17.00 WITA and not
in the Koramil, the witness met a group of Pro Independence people then the
witness was forced to follow them into the church/seminary of Liquisa.
- That the witness saw Yacinto and Father Rafael inside the church with
around 20 people and hundreds of other were behind the church.
- That the witness saw Yacinto was holding constructed weapon while other
Pro Independence group armed with sword, spear, and other weapons.
- That the witness heard gunshots around 12.00 WITA, people inside the
church went panic and running away.
- That the witness can made to run away and went to Bupati's residence and
the witness saw a lot of people injured because of the dispute between those
two groups.
- That the witness saw TNI helped injured refugees a lot.
Considering, that General Prosecutor has asked for permission in court to
read some written statement from witnesses that has decently called for
several times but did not come, they are: 1. Rafael Dos Santos; 2. Joao
Pereira; 3. Jose Menezes Nunes Serpao; 4. Fransisco Da Silva; 5. Maria
Fernanda Mendes; 6. Florinda Dos Santos; 7. Ricardo Rodrigues Pereira; 8.
Emilio Barreto; 9. Dulcia Carvalho Dos Santos and 10. Jacinto Da Costa
Freitas with the reason: because based on the letter from General Attourney
of Timor Leste that can not ensure the attendance of those witnesses for
security reason, and based on that request The Court ordered General
prosecutor to read their written statement as has been mentioned in the
dossier and considered as part of this decision and has been considered in
this decision;
Considering, that based on written statement from the witnesses that was
read before, The defendants I, II, and III declared they denied any
information explain the defendants has committed crime, and declared they
denied any information from the witnesses that consist lies and plead so
those information will not become as evidence;
Considering, that The defendants, each of them, has given their own
testimony in court as below:
I. The Defendant Letkol Infanteri Asep Kuswani:
- That the defendant rejects the accusation.
- That based on the report received by the defendant on 4 April 1999 there
was a clash between Anti Integration group and Pro Integration group and
attacking Pro Integration's residential area.
- That on 5 April 1999 Anti Integration group did obliteration, burning, and
take hostage from Pro Integration's son/daughter whereas the incident
reported to the police and handled by the police then the Anti Integration
group run away and hide in Father Rafael's residence.
- That on 6 April 1999 the Pro Integration group was asking, through the
police, Father Rafael to give the Anti Integration group who did burn and
destroy civilian's house and take hostage to the police according to the law.
- That the police sent Lettu. Pol John Rea to negotiate with Father Rafael
but failed because when Lettu John Rea wanted to report to The Head of
Resort Police Liquisa Adios Salova in Makodim, suddenly a gunshot was heard
from Father Rafael's residence to Pro Integration direction and then Pro
Integration group sporadically was attacking Father Rafael's residential
area.
- That because of the attack 5 people were dead and approximately 20 people
were injured.
- That all the incidents since 4, 5, and 6 April 1999 was reported to Dan
Rem as Direct Authority above the defendant;
- That based on report from the defendant to Dan Rem, the defendant was
ordered as below:
- Adjusting to PROTAP In dealing with the riot and prioritize Polri.
- To coordinate with Polri in doing preventive action for the riot.
- To prepare all member to give security aid in dealing with the riot
persuasively
- To prevent the riot from spreading.
- To evacuate the victims.
- That the clash happened on 6 April 1999 in Father Rafael's residence was
done by Pro Integration mass and Pro Independence mass;
- That the defendant does not know for sure the cause of that clashes
because a mass concentration gathered inside and outside the Church area.
- That the clash in Father Rafael's residence started with a gunshot from
the crime scene, and the defendant hardly could decide from which group the
gunshot came from, Pro Integration group or Pro Independence group, because
when it happened both groups has varied.
- That on 6 April 1999 in the morning the defendant met The Head of Resort
Police Liquisa Adios Salova in Military District Command to discuss
coordination in preventing bigger riot.
- That before the riot happened there was a meeting in Makodim attended by
the defendant as Dan Dim, Bupati Leoneto Martins, The Head of Resort Police
Liquisa Adios Salova to attain a solution in order to prevent more riot and
resulting in sending Lettu John Rea to negotiate with Father Rafael to give
people involved in the riot given to the police but the negotiation failed.
- That before the attack happens Wadam Rem Kol. Mudjiono gave instruction in
the meeting in Military District Command Liquisa in order to prevent bigger
clash and riot must based on the existing fixed procedure (PROTAP), and
trying to re-negotiate with Father Rafael Dos Santos, but the negotiation
failed because of the gunshot.
- That after the attack to Father Rafael's residence in the Church's area
Deputy Commander of Korem ordered to make an effort to stop the clash by
approaching and investigates the crime scene, secure the refugees, give help,
and evacuate the victims.
- That afterward the defendant ordered his member Lettu Joko to evacuate
Father Rafael and brought him to Military District Command.
- That based on that order Lettu Joko can safe Father Rafael and hid him in
Makodim Liquisa and after Father Rafael take a rest then he was shifted to
the nunnery based on his own request.
- That after the riot the defendant examine Father's residence, he saw
broken glasses and furniture in disarray.
- That since morning on 6 April 1999 the defendant ordered his entire member
to gather and prepare in Military District Command.
- That the defendant has heard about mass organization named Besi Merah
Putih (BMP) but does not know for sure who establish it, and according to
information lead by Manuel Saosa.
- That in the incident on 6 April 1999 even though preventive action has
been taken but due to the lack of law enforcement compared with Pro
Integration mass or Anti Integration mass approximately 3000 people thus
beyond the competency of the law enforcement.
- That in the clash between Pro Integration masses there were no member of
Military District Command involved, but in helping to evacuate Father Rafael
and help and evacuate the refugees;
- That the defendant has never infringe the law or doing crime and punished
before this case.
II. The defendant AKBP Drs. Adios Salova:
- That on the afternoon 4 April 1999 the defendant received a report from
the watchman that there is a clash of mass in Pukelara.
- That on 5 April 1999 there is demolition and burning of civilian residence
done by mass with Jacinto Da Costa Pereira, chief of Dato Village pro
independence, as their leader.
- That on 5 April 1999 the defendant sent police officers to investigate the
crime scene.
- That based on information on 6 April 1999 chief of Dato Village, Jacinto,
were in Father Rafael's residence, according to the phone call from the
nunnery.
- That the defendant tried to find Jacinto to face legal process by sending
Lettu Pol. John Rea to Father Rafael's residence for the investigation about
demolition and burning of Pukelara civilian residence.
- That on 6 April 1999 mass concentration has happened outside the church
area and demand for CNRT leader, Jacinto the chief of Dato Village, and
other CNRT member bestowed.
- That Lettu Pol John Rea met Father Rafael to negotiate so Jacinto can
handed over to the police, Father Rafael was ready to do that with several
requirements member of CNRT and Jacinto taken to Polda Dili and mass of Besi
Merah Putih that gather around the church area were pulled back because
there were too many refugees asking for protection inside the area.
- That based on the requirements asked by Father Rafael, Lettu John Rea
failed to bring Jacinto and other member of CNRT.
- That on 6 April 1999 around 08.00 WITA the defendant received a phone call
from Father Rafael telling that mass from Pro Integration group will get
into Father Rafael's residence because Jacinto, the chief of Dato Village,
and some members of Falantil's group were hiding in there.
- That based on report from Father Rafael mentioned above, the defendant
ordered 1 (one) platoon of Brimob (mobile brigade) to protect Father
Rafael's residence by guarding the priest's residence inside the church area
from mass gathered outside the church area to prevent being attacked by Pro
Integration group.
- That the Besi Merah Putih crowd from Pro Integration wanted Jacinto and
his friends to be handed over because they have attacked the Pro Integration
group in Pukelara and carried weapons when they entered the priest's house.
- That after the defendant assigned Brimob to guard the priest's residence,
the defendant ordered Letda Pol. Damianus Dappa to negotiate with the priest
to hand over the chief of Dato Village but he was rejected by the priest.
- That around 10.00 WITA on 6 April 1999 the defendant checked the scene and
met Pro Integration group, Eurico Gutteres and Manuel Sausa, they demanded
so the police can investigate the leader of Pro Independence, Jacinto and
friends, taken from the priest's residence, and arrested, based on the
request from the Pro Integration group, the defendant stated not to do any
attack and to give some time for the police to negotiate with the priest.
- That around 10.30 WITA the defendant ordered Lettu Pol. John Rea to
negotiate with the priest to hand over Jacinto to the police.
- That at the time the defendant was with Deputy Commander of Korem Mudjiono,
Dan Dim Liquisa which is the defendant I. Liquisa's bupati Leoneto Martins
which is the defendant 3 (three), and Letkol Yayat Sudrajat gathered in
Makodim Liquisa, not long after that Lettu Pol. John Rea came with the
result from negotiation with the priest that the priest wanted to hand over
if Polri was the one who take them and processed in Polda Dili and Muspida
would take part to secure and pulled Besi Merah Putih mass back from outside
the church area.
- That before the clash happen, the defendant saw TNI member was in Military
District Command prepared them selves. Meanwhile the defendant's member with
Brimob guarded between the church area, in where Father Rafael's residence,
and Besi Merah Putih group.
- That around 12.00 WITA the defendant II with the defendant I and the
defendant III with Deputy Commander of Korem asked Bupati Leoneto Martins,
the defendant III, to secure Jacinto but Leoneto Martins refused it because
he was afraid to be killed, thus after the defendant ordered John Rea to
negotiate to receive the priest suggestion, a few minute later there were
gunshots followed by fire contact, the defendant I and other officer
immediately left the meeting site of their own and the defendant did not
know where they were about, because the situation were in chaos and the
defendant ordered his subordinate to separate the mass;
- That based on crime scene investigation the gunshots came from the
priest's residence to Pro Integration numbering around 2000 people;
- That the gunshots from inside the church area responded by gunshots from
Besi Merah Putih mass from Pro Integration outside the church area, it
resulted in clashes among mass.
- That force from Polri and Brimob with unlimited numbers could not block
the clash because gunshots came from all over direction and they were in
between the mass.
- That based on that incident the defendant ordered Kapuskodalops, John Rea
and Brimob forces to immediately rescue the refugees from Pro Integration
action and temporary brought them to The Head of Resort Police Liquisa's
residence and later taken to Bupati's residence.
- That at the time the defendant saw Father Rafael and his assistant were
already safe in Military District Command, but the defendant did not know
who had rescued them.
- That the clash between Pro Integration mass and Pro Independent mass in
the church area causing 5 victims dead and then buried in Maubara after
coordinating with Bupati Leoneto Martins (the defendant III) and around 25
victims injured and taken to Puskesmas;
- That the defendant has never been punished and never involved in any crime
cases before.
III. The defendant Leoneto Martins:
- That the defendant was sit as Bupati, Leader of Liquisa Region, since
1994-1999 and responsible directly to the Governor of East Timor in Dili;
- That the defendant had direct subordinate, assistant, expert staff, and
other administrative officer who were effectively controlled by the
defendant;
- That the existence of Pam Swakarsa within the region of Liquisa was known
by the defendant as a result from the instruction from East Timor's Governor;
- That on 4 and 5 April 1999, there was a fight in Pukelara village, Maubara
municipality, in the form of obliteration and burning of civilian's
residence from Pro Integration group. This was conducted by Pro Independence
group, lead by Jacinto Da Costa Pereira, who was then hide in Father Rafael
Dos Santos's residence;
- That there had been no militia known in Liquisa but Besi Merah Putih, it
was formed from the people's aspiration to defend Red and White flag in
East-Timor, lead by Manuel Sausa;
- That on 3 April 1999 there was an assassination threat from the community
CNRT Dato Village to Pro Integration (unclear)
- That on 4 April 1999 there was once again assassination threat from CNRT
to Pro Integration group in Pukelara village that caused around 1000 people
from Pro Integration must take refuge to Koramil office;
- That on 5 April 1999, CNRT group from Dato Village attacked Pukelara
Village and burn 10 houses and at the same time CNRT youth also attacked
Maubara people and caused 2 people, Domingus and Fransisco, injured. Because
of the attack, Maubara people run after the CNRT group to Liquisa and they
went into hiding in the church and to Father Rafael Dos Santos's residence.
- That the defendant reported the entire incident to the Governor by phone
but there was no further contact, until on 6 April 1999 the defendant could
gave written report through the Public Relation of the district government
of Liquisa.
- That the defendant heard that mass gathered around Father Rafael's
residence ordered Jacinto to surrender himself and his weapon.
- That when the clash happened in Father Rafael's residence, the defendant
was in Makodim;
- That police officer, John Rea, ordered by The Head of Resort Police
Liquisa to go to Father Rafael's residence and negotiate about giving in
Jacinto and his weapon but Father Rafael demanded to give Jacinto to police
officer and guarantee on his safety and the security guard should pulled out
BMP mass that gathered around the church area.
- That when Muspida decided to fulfill Father Rafael's demand suddenly there
were gunshots came from Father Rafael's residence, so the next step of
negotiation failed to be done.
- That on 6 April 1999 police officers took people from the Priest's
residence and taken to the defendant's residence by police vehicles, because
all refugees were rescuing themselves to the defendant's residence.
- That as a consequence of that clash among citizen, the defendant found out
that 5 people dead and around 20 people injured. Injured victims taken to
the General Hospital of Dili;
- That the defendant has never been punished and never involved in any crime
cases before.
Considering, that The Court has given attention to all things during the
trial process, in summary of the decision The Court would indicate to the
notions stated in the dossier, including the first dossier that all has
included and considered in this decision; -
Considering, that based on all testimony from witness testimony, expert
testimony, the defendants testimony, and hard evidence along with all
documents compiled, has given the irrefutable facts during the trial as
below:
1. It is true that the defendant I Letkol Inf. Asep Kuswani was Commander of
Military District Command 1638 / Liquisa since September 1997 until December
1999 in his daily task he was directly responsible to the leader of Danrem
164/Wira Dharma located in Dili; -
2. That is true the defendant I had subordinate Staff Leader and several
Officers with 3 (three) Koramil in Liquisa, Bazar Tele, and Maubara;
3. That is true the defendant II AKBP Adios Salova was sit as the Head of
Resort Police Liquisa, East Timor, since 1998 until 1999 and in his daily
task directly responsible to the Head of State Police East Timor in Dili;
4. That is true the defendant II had subordinate Wakapolres (Deputy of the
Head of Resort Police) and several Officers with the Head of Sector Police
in Liquisa area;
5. That is true the defendant III Leoneto Martins was sit as Pupate Liquisa
since 1994 until 1999 and directly responsible to the Governor of East Timor
in Dili. Meanwhile in top-down hierarchy the defendant had subordinate
assistant, expert staff and administrative officers supporting his task and
fulfill the Government programs under effective control from the defendant;
6. It is true that the existence of Pam Swakarsa in Liquisa was known and
approved by the defendant 3 Leoneto Martins as a realization of Instruction
from Governor of East Timor;
7. It is true that on 4 and 5 April 1999 has happened a riot in Pukelara
Village, Maubara Municipality, in the form of obliteration and burning of
civilian's residence from Pro Integration group done by Pro Independence
group, whose leader named Jacinto Da Costa Pereira, who was then discovered
hide and sheltered in Father Rafael Dos Santos's residence;
8. That is true since morning on 6 April 1999, there were a lot of local
civilian gathered in Father Rafael's residence to take refuge, they were
people from Pro Independence group consist of seniors, men, women, and
children. Meanwhile outside Father Rafael's residence there were mass
gathered as well known as BMP or Besi Merah Putih lead by Manuel Sousa from
Pro Integration group consist of men bring traditional weapons, spears,
arrows, and other stabbing tools made from wood;
9. It is true that Besi Merah Putih consist of local people of Liquisa East
Timor formed spontaneously on their own will in order to create a security
group in their surrounding, and in their activities also support Pro
Integration group;
10. It is true that Besi Merah Putih group since morning up until midday
emotionally yelled to Father Rafael and to people inside his house to give
in a person named Jacinto Da Costa Pereira to police officer as to
responsible in his action on 4 and 5 April 1999;
11. It is true that Besi Merah Putih group threatened by yelling if Jacinto
was not given out, they will attack later at 12.00 WITA;
12. It is true that around 12.00 WITA gunshots were heard from the crowd
area and Besi Merah Putih group lead by Manuel Sousa with traditional
weapons like spears, samurai, arrows, bats came into and attacked the church
area where Father Rafael's residence was. Meanwhile officer from POLRI were
unable to prevent the chaos; -
13. It is true that since morning the defendant AKBP. Adios Salova had
ordered one unit from Brimob to guard between two groups of people, under
Letda Pol Frans Salamali while the defendant I Asep Kuswani prepared his
members in Makodim if suddenly needed.
14. It is true that on 6 April 1999 the defendants 1. Letkol Asep Kuswani,
2. AKBP. Adios Salova, 3. Leoneto Martins, were having a meeting in Makodim
1638 Liquisa discussed about the way out since there were mass concentration
outside the church of Liquisa area and mass of refugees sheltered inside
Father Rafael's residence within the church area, because of the threat
yelled by Pro Integration mass Besi Merah Putih to give out Pro Independence
leader Jacinto Da Costa Pareira who was sheltered inside Father Rafael's
residence, therefore could be responsible of his wrong doing to police
officer; -
15. It is true that while the mass gathered around the church of Liquisa
area were escalated the defendants had got suggestion from Deputy Commander
of Korem 164/WD Letkol Mujiono, that in order to deal with riot that might
be happened, to remain in Fixed Procedure (PROTAP) and prioritize Polri and
coordinate in order to prevent and to deal with the riot from spreading and
evacuate the victims.
16. It is true that after received suggestion from Deputy Commander of Korem
Mujiono, the defendant I Asep Kuswani prepared all his members in Makodim if
needed anytime.
17. It is true that the defendant II AKBP Drs. Adios Salova as state
apparatus and law enforcement responsible to maintain and improve order
together with other state defense apparatus also maintain peace and security
in the community and to serve and protect the people of Liquisa.
18. It is true that around 10.00 WITA, the defendant II Adios Salova ordered
his subordinate Lettu. Pol John Rea to negotiate with Father Rafael Dos
Santos so then the Priest wanted to give in the Pro Independence group
leader, Jacinto, who burn civilian's residence in Pukelara at 4, 5 April
1999, to the police so he can face legal process and to lessen anger from
Pro Integration people who were gathered around the church area, as to avoid
the clash among citizen, but the negotiation failed because Father Rafael
did not allow CNRT member and Jacinto given to the police for fear of them
being murdered.
19. It is true that the first negotiation between Father Rafael Dos Santos
and Lettu Pol John Rea failed and reported to the defendant II Adios Salova,
that Father Rafael was ready to give in Jacinto Da Costa with several
requirements that the investigation will be done in Polda, and pulled back
Besi Merah Putih mass that gathered around the church;
20. It is true that when the witness John Rea reported result from the first
negotiation to the defendant II, in Makodim 1638 Liquisa, there were Deputy
Commander of Korem Letkol Mujiono and Letkol Yayat Sudrajat, and it was
agreed to fulfill Father Rafael's demand and ordered Lettu Pol John Rea
return to Father Rafael, but before Lettu Pol John Rea went there suddenly
gunshots were heard from Father Rafael's residence in the church of Liquisa
area, so his leaving cancelled and the meeting between the defendants with
Deputy Commander of Korem Letkol Mujiono and the witness Yayat Sudrajat was
ended and each of them left Makodim Liquisa.
21. It is true that because the gunshots heard was more intense from all
direction where people clashing mixed up in a big crowd followed by attack
to the church of Liquisa area by Besi Merah Putih followers, lead by Manuel
Sousa, use swords, spears, and arrows with other traditional weapons like
bats;
22. It is true that around 12.00 WITA Besi Merah Putih group launched an
attack to civilian hiding inside Father Rafael's residence consist of
unarmed and defenseless women, seniors, men, and children;
23. It is true that Brimob army who guard the area failed to prevent the
clash between two groups of mass, because Brimob only consist of 40 people
and unable to block thousands of mass approximately 3000 people.
24. It is true that during the attack by Pro Integration group Besi Merah
Putih, the refugees from the church of Liquisa area were panic and running
out rescuing themselves, to Bupati's official residence, Resort Police
office, and to Military District Command Command (Kodim) Liquisa, later all
refugees were directed to the official residence of Pupate, the defendant
III; -
25. It is true that the defendant I Asep Kuswani ordered his soldiers under
TNI leader Joko Waluyo went to the church of Liquisa area to rescue Father
Rafael Dos Santos and secure him in Makodim Liquisa, after Father Rafael Dos
Santos was in Military District Command Liquisa and take a rest, then he
moved to nunnery of Liquisa; -
26. It is true that after more soldiers ordered by the defendant II as
Commander of Military District came to help, the situation was getting
better and the riot was decreased and controlled; -
27. It is true that because of the attack done by Besi Merah Putih followers
to Father Rafael's residence, inside the church of Liquisa area, 5 (five)
people dead and 20 (twenty) people injured.
28. It is true that all dead victims were buried in an appropriate service
in Maubara area agreed by Muspida decision in Liquisa, it was lead by the
defendant III Leoneto Martins and attended by some member of DPRD. Meanwhile
injured victims taken to Public Health Center;
29. It is true that after the situation was under control then police line
was made, and on the next day 7 April 1999 a team from Resort Police of
Liquisa processed the Crime Scene, to do inquiry and investigation to the 3
(three) defendants in Liquisa case. Meanwhile the investigation process done
by officers from Resort Police of Liquisa together with Dit Serse from State
Police of East Timor.
30. It is true that based on the result from the Crime Scene there were some
arrows, bats, and knives collected and secured by police officer in charge;
31. It is true that other facts will be conversed simultaneously in the
examination and nequisitor from General Prosecutor.
Considering, that the next facts mentioned above will become an initial
basic for examination in proving the charges from General Prosecutor to the
defendants as follow:
First:
PRIMARY:
Article 42 jis. Article 7 letter b, Article 9 letter a, Article 37, Act No.
26 Year 2000 about Human Rights Court jo. Article 55 verse (1) the-2nd
Criminal Code; -
SUBSIDIARY:
Specifically on the Defendant I Letkol Inf. Asep Kuswani:
Article 42 verse (1) jis. Article 7 letter b, Article 9 letter a, Article 37
Act No. 26 year 2000 about Human Rights Court;
Specifically on the Defendant II AKBP. Drs. Adios Saliva:
(unclear) Act No. 26 year 2000 about Human Rights Court;
Specifically on the Defendant III Leoneto Martins:
Article 42 verse (2) jis. Article 7 letter b, Article 9 letter a, Article 37
Act No. 26 year 2000 about Human Rights Court;
Second
PRIMARY:
Article 42 jis. Article 7 letter b, Article 9 letter h, Article 40 Act No.
26 year 2000 jo. Article 55 verse (1) the-2nd Criminal Code;
SUBSIDIARY:
Specifically on the Defendant I Letkol Inf. Asep Kuswani:
Article 42 verse (1) jis. Article 7 letter b, Article 9 letter h, Article 40
Act No. 26 year 2000 about Human Rights Court;
Specifically on the Defendant II AKBP. Drs. Adios Salova:
Article 42 verse (2) jis. Article 7 letter b, Article 9 letter h, Article 40
Act No. 26 year 2000 about Human Rights Court;
Specifically on the Defendant III Leoneto Martins:
Article 42 verse (2) jis. Article 7 letter b, Article 9 letter h, Article 40
Act No. 26 year 2000 about Human Rights Court;
Considering, that in proving the charges from General Prosecutor
cumulatively compiled and in various alternative level, the Court is facing
its obligation to prove whether the first or the second charges, each with
one option. If one of the charge has completed all of its element, therefore
the indictment has legally and certainly proven, so then the other
indictments will no longer needed to be proven; -
Considering, that the first-primary charge from the General Prosecutor
related to Article 42 jis. Article 7 letter b, Article 9 letter a, Article
37, Act No. 26 year 2000 jo. Article 55 verse (1) the-2nd Criminal Code as
follow:
Considering that the articles of charge on the first-primary from the
General Prosecutor consist of articles that describe all elements as to
formulate criminal action, and there are some subsidiary articles to
describe about the qualification and the role of all defendants in the
committed crime;
Considering, that if we examine the outline of articles on the first-primary
charge above, we can see the motivation of the General Prosecutor to prove
that the defendants is guilty in committed a gross violation of Human Rights
in the form of "murder" based on Commander Responsibility and Effective
Control or under the power of effective control toward the gross violation
of Human Rights happened;
Considering, that in examining and investigating every elements in every
first-primary article of charge mentioned above, these problem must be
answered first:
a. Was the gross violation of Human Rights really happened?
b. Who did the gross violation of Human Rights?
c. Whether the defendants were responsible of that gross violation of Human
Rights?
Considering, that in answering those question above has to be done
consecutively, where the next question can be answered only if the previous
question answered; -
Considering, that Article 42 Act No. 26 year 2000 is a customary bout
commander responsibility which will be examine after proving articles about
gross violation of Human Rights;
Considering, that article 7 letter b Act No. 26 year 2000 stated: "the Gross
violation of human rights consist of:… b. crime against humanity".
That the article above is just explained about one kind of gross violation
of human rights that is a crime against humanity and does not consist of any
elements about criminal action that needs further explanation;
That to recognize the formulation and examination of elements in the article
above, should be connected with other article of charges, so then this
article can be proven if it is completed with elements from other articles;
-
Considering, that Article 9 letter a Act No. 26 year 2000 stated: "Crime
against humanity as has been mentioned in Article 7 letter b is an action
committed as part of a wide or systematic attack and identified that the
attack deliberately directed to civilian, in the form of: a. murder ….".
Considering, that the article above consist of elements as follow:
1. The element of "action committed was part of a wide or systematic attack";
-
2. The element of "identified that the attack deliberately directed to
civilian"; -
3. The element of "action committed was in the form of murder as mentioned
in Article 340 Criminal Code"; -
Considering, that the elements mentioned above will be examined one by one
as follow:
Ad.1. Element of "Action committed was part of a wide or systematic attack":
Considering, that Act No: 26 year 2000 about Human Rights Court with the
explanation does not give any limitation or a clear definition about a wide
attack, therefore to give a limitation or comprehension upon that element
the Court was considering several things as follow; -
That element wide means that an action will bring impact nationally and
internationally, the action caused a severe damage, material and immaterial
loss, horrible, it is a vicious action to forced one political will, lead to
insecurity feeling in individual or society, and involved many parties, and
caused repercussion incidents; -
That in accordance to the facts in trial, number 7, 8, 10, 11, and 12,
stated that the clash happened in front of Father Rafael's residence was a
result of a disappointment from Besi Merah Putih group who demanded Father
Rafael and people inside his residence to give in Jacinto Da Costa who was
responsible into the obliteration and burning on 4 and 5 April 1999 in
Pukelara Village Maubara Municipality. Meanwhile Father Rafael refused to
give him in until the limit of time 12.00 WITA on 6 April 1999;
That the witness Antonio Da Conceciao Santos explained that he saw the Besi
Merah Putih follower attacked people inside the Father Rafael's residence
use samurai, spears, and constructed fire arms. Meanwhile the attackers beat
the witness himself and he was afraid, but then the witness managed to
escape from the residence and rescued by the police;
That the witness Frans Salamali who was assigned to guard outside the church
area near Father Rafael's residence explained that around 12.00 WITA there
were gunshots, and at the time Besi Merah Putih group lead by Manuel Sousa
carried traditional weapons and knives attacked Father Rafael's residence
that located inside the church of Liquisa area;
That because of the attack there was a riot happened. People lived around
the area were frightened and asked for help, and it was finally discovered,
after the incident, Father Rafael's residence was destroyed and caused a big
loss, there were 20 (twenty) injured victims, and 5 (five) dead victims
according to the facts revealed in court at Number 27; -
Considering, that based on the testimony from the witnesses and the
defendants stated there was no attack towards Pro Independence people;
instead it was a clash between Besi Merah Putih group against Pro
Independence group inside Father Rafael's residence, the Court considered as
follow:
That in one circumstances, where in one side there was a group of people
consist of men, women, children, and seniors unarmed inside one residence in
the church area to take refuge, and in other side there was a group of Besi
Merah Putih who entered emotionally together with traditional weapons and
knives, then the riot happened was not an equal and balance clash, but a
condition where one side was passively sheltered and frightened, while in
other side was doing an active intimidation in order to achieve their goal;
-
Considering, that based on the explanation above, according to the Court the
incident happened on 6 April 1999 in Father Rafael's residence inside the
church of Liquisa area was an attack from one side by Besi Merah Putih
followers towards other side, the refugees from Pro Independence group who
were frightened and in search of a safe shelter; -
Considering, that the attack destroyed Father Rafael's residence and caused
a big loss, injured victims, and dead victims in the society, according to
the Court can be described as a result from any horrible and vicious action;
-
Considering, that based on the explanation above, the Court decide the sub
element "a wide attack" has been fulfilled.
Considering, that the element Ad.1 is an alternative point of view, so if
the element of "wide" has been fulfilled then the element of "systematic"
need no further examination, however the Court decide that it is necessary
to give its opinion about the "systematic" element as follow:
That the element of "systematic" means something that has been planned, as a
systematic or sustainable policy. This thing could happen directly or
indirectly.
That directly, the planner or the actor will do everything they wanted and
planned before, regardless the effect of the action.
That indirectly, can be an action to tolerate or approve or condone the
incident from happen or facilitate the planner to do his plan. This thing
can be done through cooperation or conspiracy from a policy that has been
approved or let an incident happened, so the actor cans easily conducting
his action. Or after the planner performed his action, there were no
immediate action taken to prevent it.
That based on the fact revealed in the Court Number 10, 11, and 12 showed
that Besi Merah Putih group lead by Manuel Saosa since morning until around
12.00 WITA on 6 April 1999 had gathered and threat the people who take
refuge in Father Rafael's residence; -
That based on the fact revealed in the Court Number 9 the followers of Besi
Merah Putih consist of local people of East Timor that spontaneously came
and joined in an organization to defend the security of their region. And
this group was part of Pro Integration group, which an independent
community's organization outside the Government hierarchy.
That as they gave a time limitation, from morning on 6 April 1999 until noon
before 12.00 WITA, which is the time when the first gunshot was heard, it
was enough time for Manuel Sousa and his group of army named Besi Merah
Putih to do a consolidation and coordination in preparing the attack.
That based on the fact revealed in the Court, signaled with a gunshot on 6
April 1999 around 12.00 WITA, the followers of Besi Merah Putih lead by
Manuel Sousa that was part of Pro Integration group move forward and
attacked simultaneously from all direction using traditional weapons to
Father Rafael's residence in the church of Liquisa area, wherein the people
from Pro Independence group take refuge; -
That the attack done by Besi Merah Putih group was coordination and the
execution of a policy made by that organization without any interference
from external parties; -
Considering, that from the examination of element "part of a wide and
systematic attack", according to the Court has answered the exception or
objection from Team of Lawyer of the Defendants given in the beginning of
the trial;
Considering that based on the examination above, element ad 1. "as part of a
wide or systematic attack" has been fulfilled;
Element ad 2 "identified that the attack was deliberately directed to
civilian".
Considering that the elements examined as below:
Considering that on the explanation Article 9 Act No. 26 year 2000 stated
the definition of "attack deliberately directed to civilian" is an
arrangement of action done to the civilian as a continuation from
authoritative policy or any policy related to the organization; -
Considering that the definition was in accordance with the course of action
in Article 7 verse (2) the Rome Statute, that define attack deliberately
directed to the civilian is a multiply action towards civilian, in
accordance with or as a continuation from a state or organization policy to
do the attack.
That based on the fact revealed in the Court Number 8 showed before the
attack happened in Father Rafael's residence inside the church of Liquisa
area, since morning until around 12.00 WITA the followers from Besi Merah
Putih group had gathered around outside the church fence; -
That based on the fact, it gave a clue that there was an appropriate time to
formulate an organization policy or Besi Merah Putih group to conduct an
attack to the Pro Independence refugees; -
That there was no other target inside Father Rafael's residence in the
church area but frightened and unarmed refugees; -
That a group of people who take refuge and gathered in Father Rafael's
residence was an unquestionably fact that it was a group of civilian who
were targeted consist of priests, nuns, infants, children, men, and women; -
Considering that based on explanation above, it shows that Besi Merah Putih
which was a part of Pro Integration group had committed an attack with
single target and deliberately directed to civilian; -
Considering that based on the explanation above, the Court decide the
element ad 2 "the attack was deliberately directed to civilian" has been
fulfilled.
Ad. 3 the element of "action committed was in the form of murder as
mentioned in Article 340 Criminal Code"
Considering the element above examined as follow:
Considering that based on Article 340 Criminal Code stated "anyone who
deliberately or on purpose to take someone's life, will be punished because
of an arranged murder, with death sentence or a life time sentence or a
provisional sentence maximum twenty years".
That the article above consist of elements; a. anyone; b. on purpose; c.
planned; d. take someone's life.
a. "anyone" explained as follow:
That the term "anyone" above meant to explain who ever the person or a
person who committed an action described in the article;
That related to the first question in the examination, whether the gross
violation of Human Rights really happened, therefore to identify the
perpetrators, the examination need to be done together with the elements of
action;
Element b "in purpose" explained as follow:
That the definition of in purpose was an action done by someone or anyone
deliberately understands that the action will take someone's life;
That with the perpetrator was conscious with the effect of his/her doing, or
with any possibility that someone might get killed, instead of cancelled it
the perpetrator was continuing his plan;
That based on the fact revealed in the Court Number 12 stated that basically
on 6 April 1999 around 12.00 WITA had happened a riot in Father Rafael's
residence inside the church of Liquisa area, the followers of Besi Merah
Putih armed was attacking Father Rafael's residence;
That the witness Antonio Da Conceciao Santos along with the witness
Fransisco Salamali has given their testimony explained that Besi Merah Putih
from Pro Integration group had entered the house and attacked the refugees
from Pro Independence group inside Father Rafael's residence, the witness
saw Manuel Saosa and his members carried traditional weapon, such as spears,
samurai, and bats, the attack caused several people were injured and there
were dead victims; -
That based on the witness Fransisco Salamali testimony who saw Manuel Saosa
stands together with other Besi Merah Putih follower outside the church area,
and the witness Frans Salamali asked him to disperse the crowd because
people inside the church is our own brothers, but he was ignored by Manuel
Sausa, even they kept shouting demanding Jacinto to give himself out from
the priest's residence;
That the Human Rights Court Ad Hoc disagrees with team of lawyer from the
defendants nor the General Prosecutor who acknowledge the incident happened
in the area of Ave Maria church was a clash among citizen, refers to the
result from examination of the evidence and the witness called in trial, the
Court decide that the incident was not a clash, but an attack by Besi Merah
Putih followers towards unarmed civilian in Father Rafael's residence; -
That in the normal condition, Besi Merah Putih from Pro Integration group
lead by Manuel Sousa consciously aware that the use of knives and weapon
like samurai, spears, and arrows to human body, could resulted in injured
people and death;
That consciously and emotionally attacked, due to the hatred to Jacinto Da
Costa Pereira, because he was hiding in the priest's residence, Besi Merah
Putih group lead by Manuel Saosa, never stopped their plan to attack, and
caused around 20 (twenty) people injured and 5 (five) people dead; -
That the differences in the system of examination on the criminal elements
and the facts revealed in the Court, but the Court agrees with the
examination from General Prosecutor about the element "on purpose" done by
Besi Merah Putih has been fulfilled; -
Considering that based on the examination above, according to the Court
element b. "on purpose" has been fulfilled.
Element c. "planned before" explained as follow:
That with planned before means that there had been enough time to think
about how, when, or with what tools the plan would be done between the
motivations to commit the action until the realization of the plan;
That the interval should be enough, meaning not too fast nor too long, the
most important thing is whether in the length of time the suspect or the
perpetrator could think clearly that the suspect actually has a chance to
cancel his/her plan, but instead of doing it he keep continuing his plan;
That the action done as a crime was a murder;
That the witness Antonio Da Conceciao Santos and Lukas Soares together
explained that the number of refugees inside the church area is bigger than
Besi Merah Putih group outside the church area; -
That the fixed plan or formulating strategy for Besi Merah Putih group to
attack inside Father Rafael's residence in the church area was in the
duration of time since morning until at noon around 12.00 WITA when the
gunshot was heard;
That the length of time was enough for Manuel Sousa and his group of army to
prepare any tools, weapons, or to think about how and when the exact time,
or actually it was still possible to cancel the plan, but in reality
cancellation was not an option, and the followers still continuing the
attack and the incident happened and caused injured and dead victims; -
That the group of mass inside the church area was powerless and it can be
stopped after TNI's soldier ordered by the defendant I came to help Polri to
stop the clash; -
Considering that based on the explanation above the Court decide that there
was enough time extent between the motivation and the realization of plan to
think clearly on how to do the attack, so it can be considered as planning,
therefore the court agree the element c "planned before" has been fulfilled;
-
Element d. "take someone's life" examined as follow:
That the terms "take someone's life" refers to any action in the incident
resulted in the loss of someone's life but the suspect;
That based on the fact revealed in the Court Number 27, the attack done by
Besi Merah Putih had caused victims in civilian consist of Pro Independence
group inside Father Rafael's residence and inside the church of Liquisa area,
5 (five) people dead and 20 (twenty) people injured; -
Considering that based on the explanation above, the Court decides the
element d. "take someone's life" has been fulfilled.
Considering that because all of the elements contained in Article 9 a has
been fulfilled, therefore article of charges from General Prosecutor stated
has been proven in the trial. And if it is connected with Article 7 letter b
in the same charges mentioned above, then the conclusion is the indictment
from General Prosecutor about there had happened gross violation of Human
Rights in the form of "murder" has been fulfilled; -
Considering, based on the notions mentioned above, it answered question
number 1 and number 2, which are:
1. It is true that gross violation of human rights in the form of murder
happened;
2. That the violator of human rights was Besi Merah Putih, lead by Manuel
Sousa; -
Considering that afterward the Court will examine about the question number
3: whether the defendant I, the defendant II, and the defendant III should
be responsible on the gross violation of human rights?
Considering that to answer the question, the next article will be examined
in the first-primary indictment is the Article 42 Act No. 26 year 2000 as
follow:
Considering, that Article 42 verse (1) mentioned as follow:
"Military Commander or someone who is effectively acting as military
commander is responsible to any crime in the jurisdiction of Human Rights
Court, committed by any soldiers under his command and effective control or
under his power or effective control and the crime action was a result from
inappropriate control, which is:
a. Military Commander or anyone who know or who supposed to know about the
condition where his army committing or has just committing a gross violation
of human rights, and
b. Military Commander or anyone who did not do any appropriate action and
needed in his power to prevent or to stop the action or to give the suspect
to the officer in charge for investigation, inquiry, and charges".
Considering that the article above consist of elements as follow:
1. Military Commander or someone who is effectively acting as military
commander,
2. Responsible to any crime committed in the jurisdiction of Human Rights
Court, conducted by army under the command and effective control, or under
the power and effective control,
3. The crime committed is a result from inappropriate control, which are:
a. Military Commander or anyone who know or who supposed to know about the
condition where his army committing or has just committing a gross violation
of human rights:
b. Did not do any appropriate action and needed in his power to prevent or
to stop the action or to give the suspect to the officer in charge for
investigation, inquiry, and charges".
Considering that because of the charges refer to 3 (three) defendants who
has different task, so for the sake of clarity of the examination the
elements above, it has to be done one by one, each and every defendant as
follow:
I. The first-Primary indictment to the Defendant I Letkol Inf. Asep Kuswani;
Ad. 1 element "Military Commander or someone who is effectively acting as
military commander"
Considering that based on the facts revealed in the trial Number 1, the
defendant I Letkol Inf. Asep Kuswani was sits as Military District Commander
1638 Liquisa since September 1997 until December 1999; -
That as the one who sits as Military District Commander, the defendant had
effective subordinate, several officer as staff and several Commander
Koramil with the entire organic troops; -
Considering that based on the examination above, the Court decide that the
defendant I had a capacity as a military commander or someone who was
effectively acting as Military Commander, so then the element Ad 1 towards
the defendant I Letkol Inf. Asep Kuswani has been fulfilled; -
Element ad. 2 "Responsible to any crime committed in the jurisdiction of
Human Rights Court, conducted by army under the command and effective
control, or under the power and effective control:"
Considering that in order to examine the elements above, the court refers to
the examination result Article 9 letter a, stated has been proven that on 6
April 1999 has happened crime against humanity in the form of murder in
Father Rafael's residence located in the church of Liquisa area committed by
Besi Merah Putih group with Manuel Sousa as their leader;
Considering that what stated in element ad 2 "crime committed in the
jurisdiction of human rights court", is a criminal action that has been
examined and stated proven to Article 9 letter a, which is "murder"; -
Considering that to prove whether or not the element ad 2 above has been
fulfilled toward the existence of the defendant I Asep Kuswani, then the
question need to answer is:
"Is there any link between chain of command and effective control on the
problem between the defendant I Asep Kuswani with Besi Merah Putih with
their leader Manuel Sousa?", or in the contrary whether or not Besi Merah
Putih group was a group of army in the chain of command and effective
control, or under the power and effective control of the defendant I Asep
Kuswani?";
Considering that the answer of that question as follow:
That the definition of someone having a link to the chain of command to
someone else only if there is a permanent regulation stated that official
position of someone to someone else vertically as a superior with inferior
or vice versa; -
That the fact in trial Number 9 stated Besi Merah Putih as part of Pro
Integration group was a group of local people of East Timor formed
spontaneously on their own will in order to create a security group in their
surrounding;
That the witness Fransisco Salamali along with the witness Antonio Da
Conceciao Santos has given their testimony explained that Besi Merah Putih
from Pro Integration group had entered the house and attacked the refugees
from Pro Independence group inside Father Rafael's residence, with Manuel
Saosa as their leader; -
That based on the fact revealed in trial Number 12 and 22, there were no
other groups who attacked the refugees in Father Rafael's residence but Besi
Merah Putih, lead by Manuel Sousa;
That during the examination trial there were no evidence, documents nor
witnesses, that showed any relation as superior and inferior between Manuel
Sousa and his group Besi Merah Putih in one side and the defendant I Asep
Kuswani in other side;
That even if the defendant I have heard the name Besin Merah Putih, but the
defendant I did not know further and never have an effective command with
them;
That even when the defendant I had a group of army under his effective
command, which are Kasdim, Koramil, and other TNI soldier in BKO, but none
of the evidence could shown the involvement any of his soldier in the riot
or clash in Father Rafael's residence that caused human life.
Considering that based on the things above, the court decide that between
the defendant I Asep Kuswani and Besi Merah Putih had no chain of command or
effective control. And otherwise, Besi Merah Putih was not a group of army
under the chain of command and effective control of the defendant I Asep
Kuswani.
Considering that based on the explanation above, the question can be
answered with:
"Between the defendant I Letkol Inf. Asep Kuswani and Besi Merah Putih
followers which is a part of Pro Integration group has no chain of command,"
and otherwise Besi Merah Putih was not a group of army under the chain of
command and effective control of the defendant I Asep Kuswani".
Considering that with the answer about connection between the defendant I
Asep Kuswani and Besi Merah Putih group, then the key question number 3 has
been answered, which is "Whether the defendants were responsible to the
gross violation of human rights happened?", and the answer is "the defendant
I Letkol Inf. Asep Kuswani did not responsible on the gross violation of
human rights happened".
Considering that based on the explanation above, the Court decide that the
element ad 2 Article 42 verse (1) stated "responsible to any crime action
committed by an army under his chain of command or effective control, or
under his power or effective control" toward the defendant I Letkol Inf.
Asep Kuswani has not been fulfilled; -
Considering that because one of the element of Article 42 verse (1) has not
been fulfilled, therefore other elements need no further examination, and
Article 42 verse (1) Act No. 26 year 2000 hereby stated legally not proven;
-
Considering that Article 42 verse (2) Act No. 26 year 2000 will be examine
as follow:
Considering that the complete version of Article 42 verse (2) Act no. 26
year 2000, stated as follow:
"A superior, whether police officer or other civilian, were responsible on
any crime related to gross violation of human rights conducted by his
subordinate under his power and effective control, because the superior did
not do any appropriate control toward his subordinate, in the form of:
a. The superior know and deliberately neglecting the information clearly
shown that his subordinate is committing or just committed a gross violation
of human rights; and
b. The superior did not take any proper and suitable action needed to
prevent or to stop the action or to hand over the perpetrator to the officer
in charge for further investigation, inquiry, and indictment."
Considering that the article above consist of elements a follow:
1. "A superior, whether police officer or other civilian,
2. "Were responsible on any crime related to gross violation of human rights
conducted by his subordinate under his power and effective control";
3. "Because the superior did not do any appropriate control toward his
subordinate, in the form of: The superior know and deliberately neglecting
the information clearly shown that his subordinate is committing or just
committed a gross violation of human rights";
4. "Because the superior did not take any proper and suitable action needed
to prevent or to stop the action or to hand over the perpetrator to the
officer in charge for further investigation, inquiry, and indictment"
Element A 1. "A superior, whether police officer or other civilian,
That the terms "a superior" means the person has official position as
superior, and has organic member or official staff as his subordinate;
That a person who has subordinate, has power entrenched in his position to
control his subordinate;
That the terms "whether police officer or other civilian" refers that the
superior can be police officer, can also government official or civil
servant;
That based on the fact revealed in the court Number 1 and 2, the defendant I
Letkol Inf. Asep Kuswani was a Commander in Military District or Military
District Commander 1638 Liquisa; -
That the superior of Military District is not a superior for police or any
other civil superior, as mentioned by the elements of the article above; -
Considering that based on the examination above, the court decides that to
the defendant I Letkol Inf. Asep Kuswani, the element of Ad. 1 "a superior,
whether police officer or other civilian" has not been fulfilled;
Considering that one of the element from Article 42 verse (2) has not been
fulfilled, then the other elements need no further examination, and to the
indictment related to Article 42 verse (2) Act No. 26 year 2000 legally not
proven;
Considering that based on the Article 42 verse (1) and verse (2) Act No. 26
year 2000 which was a part of the primary indictment not proven, thus to the
Article 37 Act No. 26 year 2000 that regulate about criminal depiction and
Article 55 verse (1) the 2nd Criminal Code that regulate about any further
action, according to the Court need no further examination; -
Considering that related to the first-primary charge to the defendant I
Letkol Inf. Asep Kuswani legally and certainly not proven, therefore the
defendant I Letkol Inf. Asep Kuswani should be freed of the first-primary
charge; -
II The First-Primary Indictment to the Defendant II AKBP. Drs. Adios Salova:
Ad. 1 element "Military Commander or someone who was effectively acting as
military commander".
That based on the facts revealed in trial number 3 and 4 the defendant II
AKBP Adios Salova was sit as the head of resort police Liquisa, East Timor,
since 1998 until 1999 and in his daily task responsible directly to the head
of regional police East Timor in Dili and had subordinate the deputy chief
of resort police and several Officers and the head of sector police within
Liquisa area; -
That the defendant II AKBP Adios Salova had a power to control groups of
soldier under him as long as they were member of Polri;
That the defendant II was not a military commander, and had no power to
control the army under effective military command. Therefore the defendant
was not a Military Commander and not someone who was effectively acting as
Military Commander; -
Considering that based on the explanation above, the defendant II was not a
military, so the element of effective military commander not fulfilled; -
Considering that because one of the element in the Article 42 verse (1) Act
No. 26 year 2000 was not fulfilled, then other elements need no further
examination, and the Article 42 verse (1) stated legally and certainly not
proven;
Considering that the Article 42 verse (2) Act No. 26 year 2000 will be
examined as follow:
Considering that refers to Article 42 verse (2) Act No. 26 year 2000 on the
examination to the defendant I above, the elements are as follow:
1. "A superior, whether police officer or other civilian,
2. "Were responsible on any crime related to gross violation of human rights
conducted by his subordinate under his power and effective control:
a. "Because the superior did not do any appropriate control toward his
subordinate, in the form of: The superior know and deliberately neglecting
the information clearly shown that his subordinate is committing or just
committed a gross violation of human rights";
b. "Because the superior did not take any proper and suitable action needed
to prevent or to stop the action or to hand over the perpetrator to the
officer in charge for further investigation, inquiry, and indictment"
Considering that the elements will be examined as follow:
The element Ad. 1 "A superior, whether police officer or other civilian,
That the terms "a superior" means the person has official position as
superior, and has organic member or official staff as his subordinate;
That a person who has subordinate, has power entrenched in his position to
control his subordinate;
That the terms "whether police officer or other civilian" refers that the
superior can be police officer, can also government official or civil
servant;
That based on the fact revealed in the court Number 3 and 4, the defendant
II AKBP Adios Salova was sit as the head of resort police since 1998 until
1999 and in his daily task responsible directly to the head of regional
police East Timor in Dili and had subordinate the deputy chief of resort
police and several Officers and the head of sector police within Liquisa
area; -
That the defendant II AKBP Adios Salova had a power to control groups of
soldier under him as long as they were member of Polri;
Considering that based on the explanation above, the Court decides, the
element ad. 1. "A superior, whether police officer or other civilian, has
been fulfilled.
The element ad. 2. "Were responsible on any crime related to gross violation
of human rights conducted by his subordinate under his power and effective
control".
Considering that in order to examine the elements above, the court refers to
the examination result Article 9 letter a, stated has been proven that on 6
April 1999 has happened crime against humanity in the form of murder in
Father Rafael's residence located in the church of Liquisa area committed by
Besi Merah Putih group with Manuel Sousa as their leader;
Considering that what stated in element ad 2 "gross violation of human
rights", is a criminal action that has been examined and stated proven to
Article 9 letter a, which is "murder"; -
Considering that to prove whether or not the element ad 2 above has been
fulfilled toward the existence of the defendant II AKBP Adios Salova, then
the question need to answer is:
"Is there any link between chain of command and effective control on the
problem between the defendant II AKBP Adios Salova with Besi Merah Putih
with their leader Manuel Sousa?", or in the contrary whether or not Besi
Merah Putih group was a group of army in the chain of command and effective
control, or under the power and effective control of the defendant II AKBP
Adios Salova?";
Considering that the answer of that question as follow:
That the definition of someone having a link to the chain of command to
someone else only if there is a permanent regulation stated that official
position of someone to someone else vertically as a superior with inferior
or vice versa; -
That the fact in trial Number 9 stated Besi Merah Putih as part of Pro
Integration group was a group of local people of East Timor formed
spontaneously on their own will in order to create a security group in their
surrounding;
That the witness Fransisco Salamali along with the witness Antonio Da
Conceciao Santos has given their testimony explained that Besi Merah Putih
from Pro Integration group had entered the house and attacked the refugees
from Pro Independence group inside Father Rafael's residence, with Manuel
Saosa as their leader; -
That based on the fact revealed in trial Number 12 and 22, there were no
other groups who attacked the refugees in Father Rafael's residence but Besi
Merah Putih, lead by Manuel Sousa;
That during the examination trial there were no evidence, documents nor
witnesses, that showed any relation as superior and inferior between Manuel
Sousa and his group Besi Merah Putih in one side and the defendant II AKBP
Adios Salova in other side;
That even if the defendant II have heard the name Besin Merah Putih, but the
defendant II did not know further and never have an effective command with
them;
That even when the defendant II had a group of army under his effective
command, which are Wakaplolres, Kasats, and other member of POLRI, but none
of the evidence could shown the involvement any of his soldier in the riot
or clash in Father Rafael's residence that caused human life.
Considering that based on the things above, the court decide that between
the defendant II AKBP Adios Salova and Besi Merah Putih had no chain of
command or effective control. And otherwise, Besi Merah Putih was not a
group of army under the chain of command and effective control of the
defendant II AKBP Adios Salova.
Considering that based on the explanation above, the question can be
answered with:
"Between the defendant II AKBP Adios Salova and Besi Merah Putih followers
which is a part of Pro Integration group has no chain of command," and
otherwise Besi Merah Putih was not a group of army under the chain of
command and effective control of the defendant II AKBP Adios Salova".
Considering that with the answer about connection between the defendant II
AKBP Adios Salova and Besi Merah Putih group, then the key question number 3
has been answered, which is "Whether the defendants were responsible to the
gross violation of human rights happened?", and the answer is "the defendant
II AKBP Adios Salova did not responsible on the gross violation of human
rights happened".
Considering that based on the explanation above, the Court decide that the
element ad 2 Article 42 verse (1) stated "responsible to any crime action
committed by an army under his chain of command or effective control, or
under his power or effective control" toward the defendant II AKBP Adios
Salova not fulfilled; -
Considering that because one of the element of Article 42 verse (2) has not
been fulfilled, therefore other elements need no further examination, and
Article 42 verse (2) Act No. 26 year 2000 hereby stated legally not proven;
-
Considering that based on the Article 42 verse (1) and verse (2) Act No. 26
year 2000 the primary indictment not proven, thus to the Article 37 Act No.
26 year 2000 that regulate about criminal depiction and Article 55 verse (1)
the 2nd Criminal Code that regulate about any further action, according to
the Court need no further examination; -
Considering that related to the first-primary charge to the defendant II
AKBP Adios Salova legally and certainly not proven, therefore the defendant
II AKBP Adios Salova should be freed of the first-primary charge; -
III The First-Primary Indictment to the Defendant III Leoneto Martins:
Ad. 1 element "Military Commander or someone who was effectively acting as
military commander".
That based on the facts revealed in trial number 5 the defendant III Leoneto
Martins was sit as Bupati of Liquisa region, since 1994 until 1999 and
responsible directly to the Governor of East Timor;
That the defendant III, as the functional holder of the head of the region
and Government Representative, was responsible for governmental aspect,
coordinate the development, and maintain community welfare in all aspects.
That the defendant III Leoneto Martins was not a Military Commander and had
no power to control an army under an effective military command. Therefore
the defendant was not a Military Commander and not someone who was
effectively acting as Military Commander; -
Considering that base on the explanation above, the defendant III was not a
part of military, therefore the element as effective military commander not
fulfilled; -
Considering that because one of the element of Article 42 verse (1) Act No.
26 year 2000 was not fulfilled, therefore other elements need no further
examination, and the Article 42 verse (1) hereby stated legally and
certainly not proven;
Considering that the Article42 verse (2) Act No. 26 year 2000 will be
examined as follow:
Considering that refers to Article 42 verse (2) Act No. 26 year 2000 on the
examination to the defendant I above, the elements are as follow:
1. "A superior, whether police officer or other civilian,
2. "Were responsible on any crime related to gross violation of human rights
conducted by his subordinate under his power and effective control:
a. "Because the superior did not do any appropriate control toward his
subordinate, in the form of: The superior know and deliberately neglecting
the information clearly shown that his subordinate is committing or just
committed a gross violation of human rights";
b. "Because the superior did not take any proper and suitable action needed
to prevent or to stop the action or to hand over the perpetrator to the
officer in charge for further investigation, inquiry, and indictment"
Considering that the elements will be examined as follow:
The element Ad. 1 "A superior, whether police officer or other civilian,
That the terms "a superior" means the person has official position as
superior, and has organic member or official staff as his subordinate;
That a person who has subordinate, has power entrenched in his position to
control his subordinate;
That the terms "whether police officer or other civilian" refers that the
superior can be police officer, can also government official or civil
servant;
That based on the fact revealed on the Court at number 5, Defendant III
Leoneto Martin was sit as Bupati of Liquisa region since the year 1994 until
1999 and responsible directly to the Governor of East Timor;
That the Defendant III held the function as a leader of a region and central
government representative, bear the responsibility in civil governmental
field, coordinate the development, and maintain society interaction or
civilian;
That refers to his job and authority; it was true that the Defendant III
Leoneto Martin was not a police officer or a military officer, but a civil
officer;
Considering, based on things above, the Court opinion was, element ad 1. "a
superior, either police officer or other civil" has fulfilled,
Element ad.2 "Responsible in crime for gross violation of human right done
by his subordinate who is under his authority and his effective control."
Considering, in order to examine the element above, the Court refer to the
examination of Article 9 Letter a that has been approved on 6 April 1999
happened a violation against human right in forms of massacre on the Father
Rafael's Residence inside the church of Liquisa area, done by group Besi
Merah Putih, with Manuel Sousa as their leader;
Considering that what stated in element ad. 2 "gross violation of human
rights", is a criminal action that has been examined and stated proven to
Article 9 letter a, which is "murder"; -
Considering that to prove whether or not the element ad 2 above has been
fulfilled toward the existence of the defendant III Leoneto Martins, then
the question need to answer is:
"Is there any link between chain of command and effective control on the
problem between the defendant III Leoneto Martins with Besi Merah Putih with
their leader Manuel Sousa?", or in the contrary whether or not Besi Merah
Putih group was a group of army in the chain of command and effective
control, or under the power and effective control of the defendant III
Leoneto Martins?";
Considering that the answer of that question as follow:
That the definition of someone having a link to the chain of command to
someone else only if there is a permanent regulation stated that official
position of someone to someone else vertically as a superior with inferior
or vice versa; -
That the fact in trial Number 9 stated Besi Merah Putih as part of Pro
Integration group was a group of local people of East Timor formed
spontaneously on their own will in order to create a security group in their
surrounding;
That the witness Fransisco Salamali along with the witness Antonio Da
Conceciao Santos has given their testimony explained that Besi Merah Putih
from Pro Integration group had entered the house and attacked the refugees
from Pro Independence group inside Father Rafael's residence, with Manuel
Saosa as their leader; -
That based on the fact revealed in trial Number 12 and 22, there were no
other groups who attacked the refugees in Father Rafael's residence but Besi
Merah Putih, lead by Manuel Sousa;
That during the examination trial there were no evidence, documents nor
witnesses, that showed any relation as superior and inferior between Manuel
Sousa and his group Besi Merah Putih in one side and the defendant III
Leoneto Martins in other side;
That even if the defendant III have heard the name Besi Merah Putih, but the
defendant II did not know further and never have an effective command with
them;
That even when the defendant III had staff and subordinate, consist of
expert staff and assisstants but none of the evidence could shown the
involvement any of his soldier in the riot or clash in Father Rafael's
residence that caused human life.
Considering that based on the things above, the court decide that between
the defendant III Leoneto Martins and Besi Merah Putih had no chain of
command or effective control. And otherwise, Besi Merah Putih was not a
group of army under the chain of command and effective control of the
defendant III Leoneto Martins.
Considering that based on the explanation above, the question can be
answered with:
"Between the defendant III Leoneto Martins and Besi Merah Putih followers
which is a part of Pro Integration group has no chain of command," and
otherwise Besi Merah Putih was not a group of army under the chain of
command and effective control of the defendant III Leoneto Martins".
Considering that with the answer about connection between the defendant III
Leoneto Martins and Besi Merah Putih group, then the key question number 3
has been answered, which is
"Whether the defendants were responsible to the gross violation of human
rights happened?", and the answer is "the defendant III Leoneto Martins did
not responsible on the gross violation of human rights happened".
Considering that based on the explanation above, the Court decide that the
element ad 2 Article 42 verse (2) stated "responsible to any crime action
committed by an army under his chain of command or effective control, or
under his power or effective control" toward the defendant III Leoneto
Martins not fulfilled; -
Considering that because one of the element of Article 42 verse (2) has not
been fulfilled, therefore other elements need no further examination, and
Article 42 verse (2) Act No. 26 year 2000 hereby stated legally not proven;
-
Considering that based on the Article 42 verse (1) and verse (2) Act No. 26
year 2000 the primary indictment not proven, thus to the Article 37 Act No.
26 year 2000 that regulate about criminal depiction and Article 55 verse (1)
the 2nd Criminal Code that regulate about any further action, according to
the Court need no further examination; -
Considering that related to the first-primary charge to the defendant III
Leoneto Martins legally and certainly not proven, therefore the defendant
III Leoneto Martins should be freed of the first-primary charge; -
Considering, that based on first-primary charge did not proven legally and
certainly unfulfilled to Defendant I, Defendant II, and Defendant III so the
Court examining and considering the First-Subsidiary Charge as follow:
First-Subsidiary Charge:
Considering, that in order to examine first-subsidiary charge, the Court has
pay attention to outline and content of the Articles in that charge of the
Defendant I. Letkol. Inf. Asep Kuswani, Defendant II Ajun High Commissioner
Police Drs. Adios Salova, and Defendant III Leoneto Martins, The articles
was: Article 42 verse (1) jis Article 7 letter b and Article 9 letter a and
Article 37 Act number 26 year 2000 toward Defendant I. Letkol. Inf. Asep
Kuswani, and Article 42 verse (2) jis Article 7 letter b, Article 9 letter a
and Article 37 Act number 26 year 2000 toward Defendant II Ajun High
Commissioner Police Drs. Adios Salova, and Defendant III Leoneto Martins, is
equal and only as a part of Article of first-primary Charge;
Considering, based on that things, that based on that articles, than in
order to examine and proof first-Subsidiary Charge toward Defendant I,
Defendant II and Defendant III, the Court recognize it is sufficient to
referring and occupy from the examination on first-primary charge which
stated it was not proven legally and certainly unfulfilled., so The
First-Subsidiary Charge towards the Defendant I,II,III has to be stated not
proven legally and certainly unfulfilled, and to Defendant I. Letkol. Inf.
Asep Kuswani, Defendant II Ajun High Commissioner Police Drs. Adios Salova,
and Defendant III Leoneto Martins, Has to be stated free of
Second-subsidiary Charge;-
Considering that because of First-Primary Charge or First-Secondary Charge
were not proven legally and certainly unfulfilled, the next second-primary
charge will be examine as follow:
Second-Primary Charge:
Considering, that General Prosecutor's Second-Primary Charge related with
Article 42 jis, Article 7 letter b, Article 9 letter h, Article 40 Act
number 26 year 2000 jo, Article 55 verse (1) the 2nd Criminal Code will be
examine as follow:
Considering, that General Prosecutor's articles of Second-Primary Charge
consist of articles which contain full elements of criminal action
description, and there were complimentary articles for qualification and the
role of the defendants in proving crime action;
Considering, that if the Court has pay attention to outline of Articles on
second-primary charges above, it can be formulated as the General
Prosecutor's purpose to proof that the Defendants were guilty as gross human
rights crime action in the form of "Torture" on the base of responsible
command and effective control or under authority and effective control
towards the gross violation of Human Rights that happened;
Considering that in order to examine and prove the elements exist in every
Second-Primary Charge articles above, first the questions below must be
answered:
a. Was it true that Gross Violation against Human Rights had happened?
b. Who was the Perpetrator of that Gross Violation against Human Rights?
c. Could the Defendants take responsibility of Gross Violation against Human
Rights that had happened?
Considering, that to answer above questions has to be done in appropriate
order, that the next question could be answered after the former question
were answered;
Considering, that Article 42 Act No 26 Year 2000, which is the rule of new
command responsibility, will be discussed after the articles which is
formulation of the gross violation of human rights was proved;
Considering, that Article 7 letter b Act no 26 Year 2000, stated as: "Gross
Violation against Human Rights covering: … b. Crime against humanity".
That above article gave only one type of gross human right violation, which
is crime against humanity and did not include part of criminal action that
has to be proved furthermore;
That to be knowledgeable about formulation and discuss the existing parts of
meaning from above article, it should be related to more charge article, so
that this article can be proved if there are compliments of other article
which elements has been proved;
Considering, that Article 9 letter h Act No 26 Year 2000, Stated as:
"Crime against humanity as stated in article 7 letter b was an action done
as part of Wide or systematical attack, known that the attack were directly
towards the civilian, as: h. torture against certain groups or unions based
on same political principles, races, nationality, ethnic, culture, religion,
sex, or other reason that has been universally confirmed as forbidden things
according to the international law…".
Considering, that above article contained these elements:
1. Element "Action done as part of wide attack or systematical";-
2. Element "Known that the attack was directly towards the civilian";-
3. Element "Action that has been done is a torture to certain groups or
unions based on same political principles, races, nationality, ethnic,
culture, religion, sex, or other reason that has been universally confirmed
as forbidden things according to the international law"
Considering, that above elements will be examine in sequence:
Element ad 1. "Action that has been done as a part of wide or systematical
attack"
Considering, that in order to examine that element, it is sufficient by
referring the examination on same elements in first primary charges, that
element ad.1. "Action that has been done as part of wide or systematical
attack" has fulfilled
Element ad 2. "Known that the attack deliberately directed toward to
civilian"
Considering, that in order to examine that element, it is sufficient by
referring the examination on same elements in first primary charges, that
element ad.2. "Known that the attack deliberately directed toward to
civilian" has fulfilled
Element ad.3. "Action that has been done is a torture to certain groups or
unions based on same political principles, races, nationality, ethnic,
culture, religion, sex, or other reason that has been universally confirmed
as forbidden things according to the international law"
Considering, that the terminology of "Torture" as formulated in article 351
Indonesian Criminal Code, does not give the clear definition; but according
to fix jurisprudence, the meaning of Torture is an action deliberately to
create uncomfortable feeling, pain or harm. Then again according to Article
351 verse (4) Criminal Code stated that torture is equal to an action to
damage someone's health deliberately;
Considering, based on above description, torture contains these elements:
a. "Deliberately"
b. "create uncomfortable feeling, pain or harm or damage someone's healthy"
c. "Towards certain groups or unions based on same political principles,
races, nationality, ethnic, culture, religion, sex, or other reason that has
been universally confirmed as forbidden things according to the
international law"
Element a. "Deliberately":
Considering, that in order to examine that element, it is sufficient by
referring the examination on same elements in first primary charges, that
element a. "Deliberately" has fulfilled.
Element b. "creates uncomfortable feeling, pain or harm or damages someone's
health"
Considering, that explanation of this element is an alternative one, so it
will be has fulfilled if one of the option, in that element, has been done;
Considering, that uncomfortable feeling, pain, or harm, or damage someone's
health was equal as someone's condition that suffer injuries, and had to be
taken care for recovery;
That, by common people knowledge about medication, if someone suffers
injuries and had to be taken care for recovery, it was sure that the people
felt pain, or felt uncomfortable feeling and his/her health has been damaged:
That based on the fact which was revealed on the Court at Number 27, the
attack on Pastor Rafael's residence in Church Liquisa complex by mass of
Besi Merah Putih caused 5 (five) victims dead and 20 (twenty) victims
injured;
That based on the fact which was revealed on the Court at Number 11, 12 and
22, it is true that followers of Besi Merah Putih, whose lead by someone
named Manuel Sousa, attacked and causing injury, even dead, of Pro
Independence civilian, taking shelter in Pastor Rafael's Residence;
Considering that based on the above examination, the Court opinion on
elements b. "creates uncomfortable feeling, pain or harm or damages
someone's health" has fulfilled.
Element c. "Towards certain groups or unions based on same political
principles, races, nationality, ethnic, culture, religion, sex or other
reason that has been universally confirmed as forbidden things according to
the international law" examine as follow:
That based on the fact which was revealed on the Court at Number 8, 9 11, 12
and 27, It showed that the attack by Pro Integration group followers of Besi
Merah Putih led by Manuel Sousa, were towards the unarmed civilian refugee,
and were pro independence political understanding.
Considering, that based on the above examination, the Court opinion on
element c. "Towards certain groups or a union based on same political
principles, races, nationality, ethnic, culture, religion, sex, or other
reason that has been universally confirmed as forbidden things according to
the international law" has fulfilled.
Considering, that all of the elements a, b, and c, has fulfilled, then
element ad 3. "Action that has been done is a torture to certain groups or
unions based on same political principles, races, nationality, ethnic,
culture, religion, sex, or other reason that has been universally confirmed
as forbidden things according to the international law" has fulfilled.
Considering, that all the elements in article 9 h, has fulfilled, then the
article of charge by general prosecutor has been proven in the Court. And if
it was related to article 7 letter b in the same charge above, then it can
be concluded that the charge of general prosecutor saying "there has been a
gross violation of human right in the form of torturing on certain group or
union based on same political principle, race, ethnic, culture, religion,
sex, or other reason that has been universally confirmed as forbidden things
according to the international law" has fulfilled.
Considering that based on above things, questions on number 1, and number 2
has been answered that:
1. It is true that there has been a gross violation of human right in the
form of torturing on certain group or union based on same political
principle, race, ethnic, culture, religion, sex, or other reason that has
been universally confirmed as forbidden things according to the
international law";
2. Perpetrator of the violation are the group followers of Besi Merah Putih
led by Manuel Sousa,
Considering, that the next Court will examine about the question on point 3:
Can the defendant I, defendant II and defendant III take responsibility upon
those gross violation of human rights?
Considering that to answer that question, then the next article will be
examined on Second-primary charge is the article 42 Act number 26 years 2000
as follow:
Considering that in order to examine and proof the elements of articles 42
Act number 26 year 2000, it is sufficient revering on the result of the
examination and proof of the same charge elements on above first-primary
charge, fortunately elements on article 42 Act Number 26 Year 2000 is not
fulfilled, so that second-primary charge has to be stated legally and
certainly unfulfilled, and the Defendant I. Letkol. Inf. Asep Kuswani,
Defendant II Ajun High Commissioner Police Drs. Adios Salova, and Defendant
III Leoneto Martins had to be stated release of the second-primary charge.
Considering, that Article 42 Act number 26 Year 2000 is part of the
second-primary were not proven, so through Article 40 Act 26 Year 2002 which
control crime provision and Article 55 verse (1) 2nd Crime Court which
control about followed action, according to the Court did not need further
examination;
Considering, that second-primary charge did not proven legally and certainly
unfulfilled towards Defendant I, Defendant II and Defendant III, so that the
Court will examine and considering Second-primary subsidiary as stated below:
Second-Subsidiary Charge:
Considering, that in order to examine second-subsidiary charge, the Court
has pay attention to outline and content of Articles in that charge of the
Defendant I. Letkol. Inf. Asep Kuswani, Defendant II Ajun High Commissioner
Police Drs. Adios Salova, and Defendant III Leoneto Martins, The articles
was: Article 42 verse (1) jis Article 7 letter b and Article 9 letter h
Article 40 Act number 26 year 2000 toward Defendant I. Letkol. Inf. Asep
Kuswani, and Article 42 verse (2) jis Article 7 letter b, Article 9 letter h
jis Article 40 Act number 26 year 2000 toward Defendant II Ajun High
Commissioner Police Drs. Adios Salova, and Defendant III Leoneto Martins, is
equal and only as a part of Article of Second-primary Charge;
Considering, that based on that articles, than in order to examine and proof
Second-Subsidiary Charge toward Defendant I, Defendant II and Defendant III,
the Court recognize it is sufficient to referring and occupy from the
examination on Second-primary Charge which stated it was not proven legally
and certainly unfulfilled., so Second-subsidiary Charge towards the
Defendant I,II,III has to be stated not proven legally and certainly
unfulfilled, and to Defendant I. Letkol. Inf. Asep Kuswani, Defendant II
Ajun High Commissioner Police Drs. Adios Salova, and Defendant III Leoneto
Martins, Has to be stated free of Second-subsidiary Charge;-
Considering, that based on the examination of all above charges by Ad Hoc
General Prosecutor, both First-primary charge, First-subsidiary charge,
Second-subsidiary charge, and Second-Subsidiary charge, were not proven
legally and certainly unfulfilled. By that Defendant I. Letkol. Inf. Asep
Kuswani, Defendant II Ajun High Commissioner Police Drs. Adios Salova, and
Defendant III Leoneto Martins, Has to be stated free of Ad Hoc General
Prosecutor's Charge.
Considering, that before the final decision, the Court recognize to reveal
these things:
Considering, that the label Pro Integration and Pro Independence group turn
up in the examination of clash of mass or people who gather round in the
Liquisa Church Complex area, that is Pro Independence who gather inside the
Priest's residence inside the Church's fence, while the Pro Integration
gather outside the Church's fence;
Considering, that the labeling of group as stated on Ad Hoc General
Prosecutor's Charge which is objector exception by the defendant's lawyer
team were reasonable enough and make the charge clear., by that the lawyer
team exception, as long as related to those labeling is unreasonable and
neglected;
Considering, that the exception made by The Lawyer team, furthermore,
according to the Court, has been examine enough and considered both in
temporary ruling and final ruling of this case;
Considering, that absence witnesses in the Court's testimony although has
been appropriately called by Court then been read by the request of Ad Hoc
general Prosecutor although it has been denied and refused by the Defendants
in the Court;
Considering, that based on the regulation, what is meant by witness'
testimony as legal evidence is the presence of witness that was given upon
oath directly in front of that Court.
Considering, that by witness' testimony that been read has been denied by
the Defendants, so the law power as witness' testimony has become weak and
can not be made as basic consideration in examine and proof Ad Hoc General
Prosecutor's Charge. These things have created a lost for Ad Hoc General
Prosecutor in order to proof his charge.
Considering, that the witness' testimony cancelled in the Court without
strong reasons, is a sign that there is a doubt on the witness himself.
Considering that the mistake on charge as a crime against humanity has to be
based on reasons by the law and makes sense for the judges. And not based on
mysterious consideration or mass media prejudice upon the Defendants which
never been proved in the Court;
Considering, in attempt to release the Defendants without the Court process,
it will violate those who has became the victims or will against the
Defendants' justice feeling themselves;
Considering, that in the contrary, equal punishment without clear evidence,
automatically will violate promises that has been made for several time and
not suitable for wise men's hearts;
Considering, that Islam religion norms stated: "avoid crime punishment (hudhud)
as long as there is no uncertainty that make the judge uncertain (syuhbat);
Considering, that all the Defendants were released from all the charge, then
the cost of this case will be burdened to the state, and for all the
Defendants, were given the rehabilitation by adding the rehabilitation
sentence on this final decision below;
Considering that the evidence given to the Court including photo of Father
Rafael's home residence surrounding, and Church Liquisa, and photo copy of
attached letters in file on questions to the panel of judges fortunately the
General Prosecutor can not show the original one, based on that matter, the
Court decide those evidence remain attached in the dossier, as stated in the
final decision below;
Considering, based on all examination and consideration above, finally the
Court decide on what have written in the final decision below has been based
on enough law reason, so that it will be considered right and fair for all
side and did not exceed the authority given to Ad Hoc Human Right Court;
Pursuant and consider all the legal law, including Article 7 Letter b,
Article 9 Letter a and Letter h, Article 37, Article 40, Article 40 verse
(1) and verse (2) Act number 26 Year 200; Article 55, Article 351 and
Article 340 Criminal Code; Article 191 verse (1), Article 194, Article 197
Customary Law; Article 14 verse (1) Government Regulation number 27 Year
1983, and other related regulations;
TO JUDGE
I. Stated the Defendants one by one: Defendant I. Letkol. Inf. Asep Kuswani,
Defendant II Ajun High Commissioner Police Drs. Adios Salova, and Defendant
III Leoneto Martins were not proven legally and certainly not guilty in
doing crime action that has been charge in first-primary charge,
first-subsidiary charge, second- primary charge and second subsidiary charge;
II. Release the Defendant I, Defendant II and Defendant III from the
first-primary charge, first-subsidiary charge, second- primary charge and
second subsidiary charge;
III. Restore the rights of the Defendants in their ability, positions, and
their Rank also their Status.
IV. Charge the cost of the trial to the State
V. Stated the evidence consist of:
1. Photo copy of Special Record Number R. / 184 / Lapsus / IV / 1999 date: 7
April 1999;
2. Photo copy of Crime Scene Statement 2 July 2000 ;
3. 6 (six sheet) Photo of Church Liquisa Complex
Still attached in the case file.
So that decides in the Ad Hoc Human Rights Panel of Judges meeting on
Thursday, date 28 November 2002, with the panel of judges consist of Cicut
Sutiarso, SH, MH as the Chair in Ad Hoc Panel of Judges; Jalaludin, SH.,
Abdurahman, SH, MH., Rachmat Syafel, MA., and Amiruddin, SH. , as the member
in Ad Hoc panel of Judges based on the decision by Human Rights Court Leader
in State Court of Central Jakarta number 06 / Pid.Ham. / Ad Hoc / 2002 PNJkt,
Pst., date: 3 June 2002. The Decision said in open Court for public on
Friday, 29 November 2002 by Chair of Ad Hoc Judges Together with members of
Ad Hoc Panel of Judges, helped by substitute Court secretary on that Court:
Matius B.Situru, SH. And Tri Widodo, SH., MH., also attended by T.B Peter
Silalahi, SH and Harry Ismi, SH., MH., as General Prosecutor and the
Defendants accompanied by their lawyer team.
Member of Panel of Judges Chair of Panel of Judges
1. = Jalaludin, SH.= = Cicut Sutiarso, SH., MH.=
2. = Abdurahman, SH, MH. =
3. = Prof.Dr.H. Rachmat Syafei, MA =
4. = Amiruddin, SH =
Substitute Court Secretary
1. = Matius B. Situru, SH =
2. = Tri Widodo,SH.,MH. = |
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