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Name: Letkol Inf. YAYAT SUDRAJAT
Place of birth: Cimahi, West Java
Age/date of birth: 43 years old/June 15, 1959
Sex: Male
Nationality: Indonesian
Religion: Islam
Address: Jl. R.A. Fadillah I No. F-12, Komplek Kopassus,
Cijantung III, East Jakarta
Occupation: TNI-AD/Kopassus/Colonel Inf./Ex Dansatgas Tribuana
VIII
Education: AKABRI class 1982
The Defendant was not detained.
The Defendant was accompanied by TNI's Advocating Team: Kolonel CHK A.B.
Setiawan, S.H, Lekol CHK Hurhajizah M., S.H., Mayor Laut Adnan Madjid, Mayor
CHK Subagyo Santosa, S.H., Kapten CHK Zulkarnaen Effendi S.H., Joao Meco,
S.H., Yan Juanda Saputra, S.H., Amir Karyatin, S.H., and Agus Takabobir,
S.H.
The Ad Hoc Human Rights Court:
Upon reading the trial dossier;
Upon reading the Decree of the Head of the State/Human Rights Court of
Central Java No. 11/Pid.HAM/Ad.Hoc/2002PN.JKT.PST. dated July 2, 2002 on the
appointment of the Panel of Judges who assessed and held the trial for this
case;
Upon reading the Appointment of the Ad Hoc Chair Judge No. 08/Pid.HAM/Ad.Hoc/2002/PN.JKT.PST
dated July 3, 2002 on the date of the trial;
Upon hearing and observing the memorandum of indictment from the Ad Hoc
General Prosecutor, Case Registration Number: 12/HAM/Timtim/07/2002 dated
July 1, 2002;
Upon hearing and observing the Preliminary Ruling of the Ad Hoc Human Rights
Court on the objections and the exceptions from the Defendant's Legal
Defense Team;
Upon hearing and observing the legal requisition from the Ad Hoc General
Prosecutor presented in the trial that in essence recommended the Ad Hoc
Panel of Judges who asses and hold the trial of this case to deliver a
verdict that:
I. states that the Defendant Kolonel Inf. Yayat Sudrajat is legally and
beyond reasonable doubt guilty of the crime of gross violation of Human
Rights as stated in article 42 verse 1 letters a, b, jis, article 7 letter b,
article 9 letter a, article 37 Law No. 26 year 2000 and article 42 verse 1
letters a, b, jis, article 7 letter b, article 9 letter h, article 40 Law No.
26 year 2000, as stated in the First and Second Primary indictment of the
General Prosecutor's memorandum of indictment;
II. sentences the Defendant to 10 years imprisonment;
III. states that the items of evidence:
A. Documents:
a. A copy of TR. Pangab No. TR/50/1999 dated January 21, 1999 on the Plan of
Departure of Satgas (Task Force) Tribuana VII, VIII, DENSHANDA V, VI
personnel to conflict areas of Irian Jaya and East Timor by Navy ships.
b. A copy of SEKP Danjen Kopassus No. Skep/92/XII year 1998 dated December
8, 1998 on the establishment of the Taskforce Tribuana VIII and its
assignment to the new region namely East Timor.
c. A copy of SPRIN Danjen Kopassus No. Sprin.25/35/I/1999 and No. Sprin/37/I/1999
dated January 27, 1999 on the departure of the Taskforce Tribuana VIII to
the conflict (or: dangerous) area of East Timor
d. A copy of SPRIN Danrem 164/WS No. Sprin/27/II/1999 dated February 11,
1999 on the Assignment of the Taskforce Tribuana in the conflict area of
East Timor.
e. A copy of Special Report No. R/184/Lapsus/IV/1999 dated April 7, 1999 on
the clashes and riots between the pro-integration and pro-independence
community groups in Liquisa Regency.
B. Explosives:
1. Two units of hand grenades made in Korea under the trademark Grenade Hand
Frag Delay K 5 Comp. B Lot. E.C. 82 H 6001-001, EC. 85 M 605-03.
to be returned to the General Attorney of the Republic of Indonesia to be
presented as evidence in other trials.
IV. sentences the Defendant to pay the case cost in the amount of Rp.
5,000.00 (five thousand rupiahs).
Upon hearing and observing the Defendant's legal defense presented in the
trial by himself and through his legal attorneys which in essence urged the
Honorable Ad Hoc Human Rights Panel of Judge to deliver a verdict that:
1. States that the Defendant Kolonel Inf. Yayat Sudrajat is not proven to be
guilty by law and beyond reasonable doubt of committing the crimes indicted
by the Ad Hoc General Prosecutor
2. Therefore states that the defendant is released from the Defendant of all
charges indicted by the Ad Hoc General Prosecutor
3. Restores the Defendant's position and dignity as he possessed prior to
this case;
4. Places the burden of case cost to the state
Upon hearing the replik (reply to the defense closing brief) of the General
Prosecutor and the duplik (reply to the replik) of the Defendant's Legal
Defense Team addressed subsequently to the court;
Taking into account that the Defendant was brought to court by the General
Prosecutor under the following indictments:
PRIMARY:
First:
- That the defendant YAYAT SUDRAJAT as the Commander of the Intelligence
Task Force Tribuana VIII (by TR.PANGAB No. TR/50/1999 dated January 21, 1999
and SKEP DANJEN KOPASSUS No. SKEP/92/XII/1998 dated December 18, 1998), on
April 3, 4, 5, and 6, 1999 or at any other time in the month of April 1999,
at the Church Complex of Liquisa East Timor or at least at other areas
within Liquica Regency in East Timor or at other areas where the Ad Hoc
Human Rights Court at the State Court of Central Jakarta has the
jurisdiction to try and deliver a judgment, based on the Republic of
Indonesia Presidential Decree No. 96 year 2001 on the Amendment of the
Decree of the Republic of Indonesia Presidential Decree No. 53 year 2001 on
the establishment of the Ad Hoc Human Rights Court at the State Court of
Central Jakarta, can be held accountable for the crimes within the
jurisdiction of the Court on Human Rights, which were committed by the troop
under his effective command and control whereupon the crime is a result of
his lack of control over his troop, whilst as the Commander of the
Intelligence Task Force Tribuana VIII, which was placed under the control of
DANREM 164/Wira Dharma as the DANREM's (Tono Suratman's) Special Staff, the
Defendant main responsibilities were:
a. Monitoring and finding information on the situation of the territory of
East Timor, related to the geographic, demographic, and social conditions of
East Timor in order to assist the tasks of KOREM 164/Wira Dharma
b. Assisting the efficient execution of KODIM's duties by conducting
territorial operations.
c. Helping to create conducive situation for a peaceful Reconciliation
between the two parties in conflict in East Timor by ensuring the success of
the referendum.
These responsibilities were to be conducted by gathering all information
received by the Intelligence Task Force Tribuana VIII placed at various
KODIMs, analyzing them, and then reporting them to the DANREM; also by
performing technical supervision on DANREM's activities by coordinating with
the commanders of the KODIM.
- In carrying out his duties, the Defendant YAYAT SUDRAJAT assigned and
designated the personnel of Intelligence Task Force Tribuana VIII to the
KODIMs in East Timor, amongst others as the following:
a. Dili
- KOSATGAS Intelligence Tribuana VIII: 27 personnel
- Representative at Taibesi (logistic guards): 4 personnel
- BKO KODIM Dili: 10 personnel
- Kodensandha: 13 personnel
b. KODIM Los Palos: 6 personnel
c. KODIM Baucau: 10 personnel
d. KODIM Viqueque: 6 personnel
e. KODIM Manatuto: 3 personnel
f. KODIM Same: 6 personnel
g. KODIM Ainaro: 7 personnel
h. KODIM Ermera: 8 personnel
i. KODIM Liquisa: 4 personnel
j. KODIM Maliana: 12 personnel
- The Defendant YAYAT SUDRAJAT as a Military Command (Commander of the
Intelligence Task Force Tribuana VIII) knew or under the current
circumstances should have known that the troop were committing or just
committed a gross violation of Human Rights which was as a crime against
humanity was an act committed as a part of a widespread and systematic
attack, which he knew to be directed upon civilians in the form of killings,
whilst the Defendant did not take the necessary and reasonable measures
within his or her power to prevent or repress its commission, hence there
occurred an attack against the civilians who were pro-independence mass who
took refuge in the complex of the Church of Liquisa, causing 22 dead victims,
namely:
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 OLIVEIRA
15. AMANDIO CESAR DOS SANTOS
16. CESAR DOS SANTOS
17. AGUSTINHO DOS SANTOS
18. LAURINDA DOS SANTOS
19. SANTIAGO
20. JOHNNY a.k.a. MAU SOKO
21. Unidentified, buried at Maubara
22. Unidentified, buried at Maubara
- Neither did the Defendant YAYAT SUDRAJAT submit the matter to the
competent authorities for inquiry, investigation, and prosecution, these
actions were committed by the Defendant in the following ways:
- That the defendant under Letter of Command from DANREM 164/WD No. SPRIN/29/II/1999
on February 11, 1999 as the Commander of the Intelligence Task Force
Tribuana VIII was BKO-ed (placed under the operational control) of DANREM
164/Wira Dharma with a total of 116 personnel.
- On April 3, 1999, the pro-independence group had threatened to murder the
pro-integration group in the village of Dato, Liquisa regency and the
community security and order situation and condition was growing to be more
volatile.
- On April 4, 1999 the pro-independence group led by JACINTO DA COSTA
PEREIRA burned down the houses of the pro-integration mass because the Besi
Merah Putih (BMP) mass from Pukelara and Maubara had burned down the house
of one FELIS BERTO DOS SANTOS and killed his son, ELIDIO, who was a part of
the troop of the pro-independence group.
- On April 5, 1999 a mass of approximately 2,000 people from the
pro-independence group took refuge in the residence of Pastor RAFAEL DOS
SANTOS at the complex of the Church of Liquisa based on the information from
Pastor HENRI of Maubara stating that the pro-integration mass would come to
attack Liquisa and that there had been shootings resulting in 2 fatalities
and 7 injured, among them were JOSE and SIRILIO DOS SANTOS, afterwards, at
approximately 16.30 WITA the mass of Besi Merah Putih (BMP) group together
with TNI troops and POLRI officers gathered at the MAKODIM of Liquisa.
- On April 6, 1999 at approximately 06.00 WITA, from the direction of
Maliana to the MAKODIM of Liquisa came BRIMOB personnel in four trucks; at
approximately 07.00 WITA, around 300 people from the pro-integration mass (the
Besi Merah Putih group) led by MANUELL SAUSA gathered and surrounded the
residence of Pastor RAFAEL DOS SANTOS, carrying generic fire arms, swords,
blades, spears, bow and arrows, while yelling "for the pro-independence
group to come out of the Church of Liquisa complex."
- That the defendant YAYAT SUDRAJAT was at Liquisa at the order of the
DANREM of 164/WS to accompany WADANREM MUDJIONO to personally check the
situation in Liquisa due to the information received from DANDIM 1638
Liquisa, Asep Kuswani (elaborated in a separate case dossier), stating that
the atmosphere in the Regency of Liquisa had become more tense between the
two conflicting groups between mass of the pro-independence group and the
mass of besi merah putih (pro-integration)
- That the defendant YAYAT SUDRAJAT was in Liquisa at that time along with 3
personnel from the Intelligence Task Force Tribuana VIII, Serda SOFYAN,
Prada DIONISIUS BERE and Serda EDY, accompanied by two units of TNI.
- At approximately 08.00 WITA, two Brimob personnel named DAMIANUS DAPA and
FRANSISCUS SALAMALI approached Pastor RAFAEL DOS SANTOS and asked him to
surrender JACINTO DA COSTA PEREIRA and GREGORIO DOS SANTOS but the request
was not granted by Pastor RAFAEL DOS SANTOS fearing that the pro-integration
group would murder them.
- At approximately 11.30 WITA five police officers led by Lettu. Pol JOHN
REA came to the residence of Pastor RAFAEL DOS SANTOS requesting him to
surrender JACINTO DA COSTA PEREIRA; at that time Pastor RAFAEL DOS SANTOS
gave two conditions: that JACINTO DA COSTA PEREIRA and his comrades should
be brought directly to the Police Headquarter in Dili, and that the Besi
Merah Putih mass should be drawn from Liquisa; meanwhile the pro-integration
mass threatened the refugees at the Liquisa Church Complex by yelling: "leave
the complex or the second tier mass will arrive (and) though you're in a
church by 12 o'clock WITA we would attack the church;" the situation at that
time was extremely frightening and intimidating because the TNI troops from
KODIM 1638/Liquisa and Brimob/Polri personnel from the Polres of Liquisa
joined the pro-integration/Besi Merah Putih (BMP) mass blockading the Church
of Liquisa.
- That the Defendant YAYAT SUDRAJAT and WADANREM MUDJIONO held a meeting at
the MAKODIM of Liquisa along with the DANDIM, KAPOLRES and the Regent of
Liquisa (elaborated in a separate case dossier), to discuss and listen to
the report from KASAT SERSE POLRES, JOHN REA, on the unsuccessful attempt to
negotiate with Pastor RAFAEL DOS SANTOS; then based on the report, the
Defendant YAYAT SUDRAJAT coordinated with the DANDIM, KAPOLRES and the
Regent of Liquisa (a defendant in a separate case dossier) and the result of
the meeting was to accept the two conditions forwarded by Pastor RAFAEL DOS
SANTOS and appointed the Regent of Liquisa (LEONETO MARTINS) to accept
JACINTO DA COSTA PEREIRA and his comrades under his custody; however,
fearing murder, based on mutual agreement the WADANREM (MUDJIONO) assigned
Lettu. Pol. JOHN REA to meet again with Pastor RAFAEL DOS SANTOS at his
residence; however a moment after Lettu. Pol. JOHN REA left, a gunfire was
heard, followed by the attack by Besi Merah Putih (BMP) and at that moment
the Defendant YAYAT SUDRAJAT immediately went out of the MAKODIM and rushed
to the scene of attack launched by the Besi Merah Putih mass assisted with
the troops from TNI/Polri, including three personnel from the Intelligence
Task Force Tribuana VIII named Serda SOFYAN, Serda EDY, and Prada DIONISISUS
BERE joining in the attack resulting in the death of 22 (twenty-two) people
whose names are mentioned above from the pro-independence mass who were
taking refuge at the residence of Pastor RAFAEL DOS SANTOS in the Liquisa
Church complex.
- That the Defendant as the Commander of the Intelligence Task Force
Tribuana VIII knew or under the circumstances at that time should have known
the widespread and systematic attack on the civilians who took refuge and
seek for protection at the residence of Pastor RAFAEL DOS SANTOS in the
Church of Liquisa complex that was executed by the three personnel of the
Intelligence Task Force Tribuana VIII, named Serda SOFYAN, Serda EDY, and
Prada DIONISISUS BERE, along with the mass from the pro-integration group (Besi
Merah Putih), and the TNI/Polri troops, where the 3 (three) personnel of the
Intelligence Task Force Tribuana VIII was at the site at the time of the
attack, whereas the Defendant should have taken the proper and necessary
actions within his jurisdiction to prevent or stop the act, or to surrender
the three personnel of his troop who joined the pro-integration mass (Besi
Merah Putih group) and the TNI/Polri troops to the authorized officials to
be inquired, investigated, and prosecuted.
- The deed of the Defendant has violated the stipulations in article 42
verse 1 letters a, b, jis, article 7 letter b, article 9 letter a, article
37 Law No. 26 year 2000 on the Human Rights Court.
Second:
- That the Defendant YAYAT SUDRAJAT as the Commander of the Intelligence
Task Force Tribuana VIII (by TR.PANGAB No. TR/50/1999 dated January 21, 1999
and SKEP DANJEN KOPASSUS No. SKEP/92/XII/1998 dated December 18, 1998), at
the time and place as stated in the primary indictment above, can be held
accountable for the crimes within the jurisdiction of the Court on Human
Rights, which were committed by the troop under his effective command and
control whereupon the act of crime is a result of his lack of control over
his troop, whilst as the Commander of the Intelligence Task Force Tribuana
VIII, which was placed under the control of DANREM 164/Wira Dharma as the
DANREM's (Tono Suratman's) Special Staff, the Defendant had the main tasks
of:
a. Monitoring and finding information on the situation of the territory of
East Timor, in terms of the geography, demography, and social conditions of
East Timor, to assist the tasks of KOREM 164/Wira Dharma
b. Assisting the efficient execution of KODIM's main duties by conducting
territorial operations.
c. Helping to create a conducive situation in the attempt to peacefully
reconcile the two clashing parties in East Timor by ensuring the success of
the referendum.
With the work mechanism of gathering all information received by the
Intelligence Task Force Tribuana VIII placed at various KODIMs, analyzing
them, and then reporting them to the DANREM; also of acting as the technical
supervisor for DANREM by coordinating with the commanders of the KODIMs.
- In carrying out his tasks, the Defendant YAYAT SUDRAJAT assigned and
designated the personnel of Intelligence Task Force Tribuana VIII to the
KODIMs in East Timor as such:
a. Dili
- KOSATGAS Intelligence Tribuana VIII: 27 personnel
- Representative at Taibesi (logistics): 4 personnel
- BKO KODIM Dili: 10 personnel
- Kodensandha: 13 personnel
b. KODIM Los Palos: 6 personnel
c. KODIM Baucau: 10 personnel
d. KODIM Viqueque: 6 personnel
e. KODIM Manatuto: 3 personnel
f. KODIM Same: 6 personnel
g. KODIM Ainaro: 7 personnel
h. KODIM Ermera: 8 personnel
i. KODIM Liquisa: 4 personnel
j. KODIM Maliana: 12 personnel
- The Defendant YAYAT SUDRAJAT as a Military Command (Commander of the
Intelligence Task Force Tribuana VIII) knew or under the current
circumstances should have known that the troop were committing or just
committed a gross violation of Human Rights which was as a crime against
humanity was an act committed as a part of a widespread and systematic
attack, which he knew to be directed upon civilians in the form of the
persecution against a specific identifiable group or collectivity on
political, racial, national, ethnic, cultural, religious, or other grounds
that are universally recognized as impermissible under the international law,
whilst the Defendant did not take the necessary and reasonable measures
within his or her power to prevent or repress its commission, hence there
occurred an attack against the civilians who were pro-independence mass who
took refuge in the complex of the Church of Liquisa, which injured 21 people,
namely:
1. JOSE RAMOS
2. FRANSISCO DOS SANTOS
3. JOAO PEREIRA
4. ABILIO DOS SANTOS
5. JOSE NUNES SERRAO
6. LUCAS SOARES
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 DS SANTOS
19. SEBASTIAO
20. RAMIRIO
21. MATIUS ALVES CORREIA
- Neither did the Defendant YAYAT SUDRAJAT submit the matter to the
competent authorities for inquiry, investigation, and prosecution, these
actions were committed by the Defendant in the following ways:
- That the defendant under Letter of Command from DANREM 164/WD No. SPRIN/29/II/1999
on February 11, 1999 as the Commander of the Intelligence Task Force
Tribuana VIII was BKO-ed (placed under the operational control) of DANREM
164/Wira Dharma with a total of 116 personnel. On April 3, 1999, the
pro-independence group had threatened to murder the pro-integration group in
the village of Dato, Liquisa regency and the community security and order
situation and condition was growing more volatile.
- On April 4, 1999 the pro-independence group led by JACINTO DA COSTA
PEREIRA burned down the houses of the pro-integration mass because the Besi
Merah Putih (BMP) mass from Pukelara and Maubara had burned down the house
of one FELIS BERTO DOS SANTOS and killed his son, ELIDIO, who was a part of
the troop of the pro-independence group.
- On April 5, 1999 a mass of approximately 2,000 people from the
pro-independence group took refuge at the residence of Pastor RAFAEL DOS
SANTOS at the complex of the Church of Liquisa based on the information from
Pastor HENRI of Maubara stating that the pro-integration mass would come to
attack Liquisa and that there had been shootings resulting in 2 fatalities
and 7 injured, among them were JOSE and SIRILIO DOS SANTOS, afterwards, at
approximately 16.30 WITA the mass of Besi Merah Putih (BMP) group together
with TNI troops and POLRI officers gathered at the MAKODIM of Liquisa.
- On April 6, 1999 at approximately 06.00 WITA, from the direction of
Maliana to the MAKODIM of Liquisa came BRIMOB personnel in four trucks; at
approximately 07.00 WITA, around 300 people from the pro-integration mass (the
Besi Merah Putih group) led by MANUELL SAUSA gathered and surrounded the
residence of Pastor RAFAEL DOS SANTOS, carrying generic fire arms, swords,
blades, spears, bow and arrows, while yelling "for the pro-independence
group to come out of the Church of Liquisa complex."
- That the defendant YAYAT SUDRAJAT was at Liquisa at the order of the
DANREM of 164/WS to accompany WADANREM MUDJIONO to personally check the
situation in Liquisa due to the information received from DANDIM 1638
Liquisa, Asep Kuswani (elaborated in a separate case dossier) which stated
that the atmosphere in the Regency of Liquisa had become more tense between
the two conflicting groups; between mass of the pro-independence group and
the mass of besi merah putih (pro-integration).
- That the defendant YAYAT SUDRAJAT was in Liquisa at that time along with 3
personnel from the Intelligence Task Force Tribuana VIII, Serda SOFYAN,
Prada DIONISIUS BERE and Serda EDY, accompanied by two units of TNI.
- At approximately 08.00 WITA, two Brimob personnel named DAMIANUS DAPA and
FRANSISCUS SALAMALI approached Pastor RAFAEL DOS SANTOS and asked him to
surrender JACINTO DA COSTA PEREIRA and GREGORIO DOS SANTOS but the request
was refused by Pastor RAFAEL DOS SANTOS fearing that the pro-integration
group would murder them.
- At approximately 11.30 WITA five police officers led by Lettu. Pol JOHN
REA came to the residence of Pastor RAFAEL DOS SANTOS requesting him to
surrender JACINTO DA COSTA PEREIRA; at that time Pastor RAFAEL DOS SANTOS
gave two conditions: that JACINTO DA COSTA PEREIRA and his comrades should
be brought directly to the Police Headquarter in Dili, and that the Besi
Merah Putih mass should be drawn from Liquisa; meanwhile the pro-integration
mass threatened the refugees at the Liquisa Church Complex by yelling: "leave
the complex or the second tier mass will arrive (and) though you're in a
church by 12 o'clock WITA we would attack the church;" the situation at that
time was extremely frightening and intimidating because the TNI troops from
KODIM 1638/Liquisa and Brimob/Polri personnel from the Polres of Liquisa
joined the pro-integration/Besi Merah Putih (BMP) mass blockading the Church
of Liquisa.
- That the Defendant YAYAT SUDRAJAT and WADANREM MUDJIONO held a meeting at
the MAKODIM of Liquisa along with the DANDIM, KAPOLRES and the Regent of
Liquisa (elaborated in a separate case dossier), to discuss and listen to
the report from KASAT SERSE POLRES, JOHN REA, on the unsuccessful attempt to
negotiate with Pastor RAFAEL DOS SANTOS; then based on the report, the
Defendant YAYAT SUDRAJAT along with the DANDIM, KAPOLRES and the Regent of
Liquisa (a defendant in a separate case dossier) discussed (the matter) and
the result of the meeting was to accept the two conditions put forth by
Pastor RAFAEL DOS SANTOS and appointed the Regent of Liquisa (LEONETO
MARTINS) to accept JACINTO DA COSTA PEREIRA and his comrades under his
custody; however, because LEONETO MARTINS feared that he was going to be
murdered, Lettu. Pol. JOHN REA was assigned to meet again with Pastor RAFAEL
DOS SANTOS at his residence; however a moment after Lettu. Pol. JOHN REA
departed, a gunfire was heard, followed by the attack by Besi Merah Putih (BMP)
and at that moment the Defendant YAYAT SUDRAJAT immediately went out of the
MAKODIM and rushed to the location where the Besi Merah Putih mass which was
merged with the troops from TNI/Polri, including three personnel from the
Intelligence Task Force Tribuana VIII named Serda SOFYAN, Serda EDY, and
Prada DIONISISUS BERE launched the attack and committed the murder of the
pro-independence mass who were taking refuge at the residence of Pastor
RAFAEL DOS SANTOS in the Liquisa Church complex.
- That the Defendant as the Commander of the Intelligence Task Force
Tribuana VIII knew or under the circumstances at that time should have known
the widespread and systematic attack on the civilians who took refuge and
seek for protection at the residence of Pastor RAFAEL DOS SANTOS in the
Church of Liquisa complex that was executed by the three personnel of the
Intelligence Task Force Tribuana VIII, named Serda SOFYAN, Serda EDY, and
Prada DIONISISUS BERE, along with the mass from the pro-integration group (Besi
Merah Putih), and the TNI/Polri troops, where the 3 (three) personnel of the
Intelligence Task Force Tribuana VIII was at the site at the time of the
attack, whereas the Defendant should have taken the proper and necessary
actions within his jurisdiction to prevent or repress the act, or to
surrender the three personnel of his troop who joined the pro-integration
mass (Besi Merah Putih group) and the TNI/Polri troops to the authorized
officials to be inquired, investigated, and prosecuted.
- The deed of the Defendant has violated the stipulations in article 42
verse 1 letters a, b, jis, article 7 letter b, article 9 letter h, article
40 Law No. 26 year 2000 on the Human Rights Court.
SUBSIDIARY
First:
- That the Defendant YAYAT SUDRAJAT as the Commander of the Intelligence
Task Force Tribuana VIII (by TR.PANGAB No. TR/50/1999 dated January 21, 1999
and SKEP DANJEN KOPASSUS No. SKEP/92/XII/1998 dated December 18, 1998), at
the time and place as stated in the primary indictment above, deliberately
provided assistance for the commission of crime against humanity in the form
of the killing of a certain group, which was a part of a widespread and
systematic attack and he knew it was directly targeted at the civilians; the
Defendant's acts were carried out in the following ways:
- That the defendant based on Under Letter of command from DANREM 164/WD No.
SPRIN/29/II/1999 dated February 11, 1999, as the Commander of the
Intelligence Task Force Tribuana VIII, was placed under the control (BKO) of
DANREM 164/Wira Dharma with a total of 116 personnel and assigned to,
amongst others:
a. Monitoring and finding information on the situation of the territory of
East Timor, in terms of the geography, demography, and social conditions of
East Timor, in order to assist the tasks of KOREM 164/Wira Dharma
b. Assisting the efficient execution of KODIM's main duties by conducting
territorial operations.
c. Helping to create a conducive situation in the attempt to peacefully
reconcile the two clashing parties in East Timor by ensuring the success of
the referendum.
- With the work mechanism of gathering all information received by the
Intelligence Task Force Tribuana VIII placed at various KODIMs, compiling
and analyzing them, and then reporting them to the DANREM; also of acting as
the technical supervisor for DANREM by coordinating with the commanders of
the KODIMs.
- In carrying out his tasks, the Defendant YAYAT SUDRAJAT assigned and
designated the personnel of Intelligence Task Force Tribuana VIII to the
KODIMs in East Timor as such:
a. Dili
- KOSATGAS Intelligence Tribuana VIII: 27 personnel
- Representative at Taibesi (logistics): 4 personnel
- BKO KODIM Dili: 10 personnel
- Kodensandha: 13 personnel
b. KODIM Los Palos: 6 personnel
c. KODIM Baucau: 10 personnel
d. KODIM Viqueque: 6 personnel
e. KODIM Manatuto: 3 personnel
f. KODIM Same: 6 personnel
g. KODIM Ainaro: 7 personnel
h. KODIM Ermera: 8 personnel
i. KODIM Liquisa: 4 personnel
j. KODIM Maliana: 12 personnel
- On April 3, 1999, the pro-independence group had threatened to murder the
pro-integration group in the village of Dato, Liquisa regency and the
community security and order situation and condition was growing to be more
volatile.
- On April 4, 1999 the pro-independence group led by JACINTO DA COSTA
PEREIRA burned down the houses of the pro-integration mass because the Besi
Merah Putih (BMP) mass from Pukelara and Maubara had burned down the house
of one FELIS BERTO DOS SANTOS and killed his son, ELIDIO, who was a part of
the troop of the pro-independence group.
- On April 5, 1999 a mass of approximately 2,000 people from the
pro-independence group took refuge to the residence of Pastor RAFAEL DOS
SANTOS at the complex of the Church of Liquisa based on the information
given by Pastor HENRI of Maubara stating that the pro-integration mass would
come to attack Liquisa. Upon arrival of the pro-integration mass, a shoot
out occurred which resulted in 2 fatalities and 7 injured, among them were
JOSE and SIRILIO DOS SANTOS. Afterwards, at approximately 16.30 WITA the
mass from Besi Merah Putih (BMP) with the troops from TNI and POLRI gathered
at the MAKODIM of Liquisa.
- On April 6, 1999 at approximately 06.00 WITA, from the direction of
Maliana to the MAKODIM of Liquisa came BRIMOB personnel in four trucks; at
approximately 07.00 WITA, around 300 people from the pro-integration mass (the
Besi Merah Putih group) led by MANUELL SAUSA gathered and surrounded the
residence of Pastor RAFAEL DOS SANTOS, carrying generic fire arms, swords,
blades, spears, bow and arrows, while yelling "for the pro-independence
group to come out of the Church of Liquisa complex."
- That the defendant YAYAT SUDRAJAT was at Liquisa at the order of the
DANREM of 164/WS to accompany WADANREM MUDJIONO to personally check the
situation in Liquisa due to the information received from DANDIM 1638
Liquisa, Asep Kuswani (elaborated in a separate case dossier), stating that
the atmosphere in the Regency of Liquisa had become more tense between the
two conflicting groups between mass of the pro-independence group and the
mass of besi merah putih (pro-integration)
- That the defendant YAYAT SUDRAJAT was in Liquisa at that time along with 3
personnel from the Intelligence Task Force Tribuana VIII, Serda SOFYAN,
Prada DIONISIUS BERE and Serda EDY, accompanied by two units of TNI.
- At approximately 08.00 WITA, two Brimob personnel named DAMIANUS DAPA and
FRANSISCUS SALAMALI approached Pastor RAFAEL DOS SANTOS and asked him to
surrender JACINTO DA COSTA PEREIRA and GREGORIO DOS SANTOS but the request
was not granted by Pastor RAFAEL DOS SANTOS fearing that the pro-integration
group would murder them.
- At approximately 11.30 WITA five police officers led by Lettu. Pol JOHN
REA came to the residence of Pastor RAFAEL DOS SANTOS requesting him to
surrender JACINTO DA COSTA PEREIRA; at that time Pastor RAFAEL DOS SANTOS
gave two conditions: that JACINTO DA COSTA PEREIRA and his comrades should
be brought directly to the Police Headquarter in Dili, and that the Besi
Merah Putih mass should be drawn from Liquisa; meanwhile the pro-integration
mass threatened the refugees at the Liquisa Church Complex by yelling: "leave
the complex or the second tier mass will arrive (and) though you're in a
church by 12 o'clock WITA we would attack the church;" the situation at that
time was extremely frightening and intimidating because the TNI troops from
KODIM 1638/Liquisa and Brimob/Polri personnel from the Polres of Liquisa
joined the pro-integration/Besi Merah Putih (BMP) mass blockading the Church
of Liquisa.
- That the Defendant YAYAT SUDRAJAT and WADANREM MUDJIONO held a meeting at
the MAKODIM of Liquisa along with the DANDIM, KAPOLRES and the Regent of
Liquisa (elaborated in a separate case dossier), to discuss and listen to
the report from KASAT SERSE POLRES, JOHN REA, on the unsuccessful attempt to
negotiate with Pastor RAFAEL DOS SANTOS; then based on the report, the
Defendant YAYAT SUDRAJAT coordinated with the DANDIM, KAPOLRES and the
Regent of Liquisa (a defendant in a separate case dossier) and the result of
the meeting was to accept the two conditions forwarded by Pastor RAFAEL DOS
SANTOS and appointed the Regent of Liquisa (LEONETO MARTINS) to accept
JACINTO DA COSTA PEREIRA and his comrades under his custody; however,
fearing murder, based on mutual agreement the WADANREM (MUDJIONO) assigned
Lettu. Pol. JOHN REA to meet again with Pastor RAFAEL DOS SANTOS at his
residence; however a moment after Lettu. Pol. JOHN REA left, a gunfire was
heard, followed by the attack by Besi Merah Putih (BMP) and at that moment
the Defendant YAYAT SUDRAJAT immediately went out of the MAKODIM and rushed
to the scene of attack launched by the Besi Merah Putih mass assisted with
the troops from TNI/Polri, including three personnel from the Intelligence
Task Force Tribuana VIII named Serda SOFYAN, Serda EDY, and Prada DIONISISUS
BERE joining in the attack resulting in the death of 22 (twenty-two) people,
namely:
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 OLIVEIRA
15. AMANDIO CESAR DOS SANTOS
16. CESAR DOS SANTOS
17. AGUSTINHO DOS SANTOS
18. LAURINDA DOS SANTOS
19. SANTIAGO
20. JOHNNY a.k.a. MAU SOKO
21. Unidentified, buried at Maubara
22. Unidentified, buried at Maubara
- The Defendant YAYAT SUDRAJAT deliberately provided the opportunity for the
pro-integration mass (the Besi Merah Putih group) and the TNI/Polri troops,
including the three personnel of the Intelligence Task Force Tribuana VIII
to commit the crime against humanity by killing the civilians mentioned
above, by not carrying out his duties properly as the Commander of the
Intelligence Task Force Tribuana VIII, who then had been BKO-ed into
becoming the special staff of DANREM 164/WD, namely to create a conducive
atmosphere in the attempt to reconcile the two clashing groups, the
pro-independence and the pro-integration masses.
The Defendant has violated the regulations in article 7 letter b jis article
9 letter a, article 37, article 41 Law No. 26 year 2000 on the Human Rights
Court.
Second:
- That the Defendant YAYAT SUDRAJAT as the Commander of the Intelligence
Task Force Tribuana VIII (by TR.PANGAB No. TR/50/1999 dated January 21, 1999
and SKEP DANJEN KOPASSUS No. SKEP/92/XII/1998 dated December 18, 1998), at
the time and place as stated in the primary indictment above, deliberately
provided assistance for the commission of crime against humanity in the form
of the persecution against a specific identifiable group or collectivity on
political, racial, national, ethnic, cultural, religious, or other grounds
that are universally recognized as impermissible under the international law,
which he knew to be directed upon civilians; the Defendant's acts were
carried out in the following ways:
- Under Letter of command from DANREM 164/WD No. SPRIN/29/II/1999 on
February 11, 1999, the Defendant acted as the Commander of the Intelligence
Task Force Tribuana VIII, which was placed under the control (BKO) of DANREM
164/Wira Dharma with a total of 116 personnel and received the tasks of:
a. Monitoring and finding information on the situation of the territory of
East Timor, in terms of the geography, demography, and social conditions of
East Timor, to assist the tasks of KOREM 164/Wira Dharma
b. Assisting the efficient execution of KODIM's main duties by conducting
territorial operations.
c. Helping to create a conducive situation in the attempt to peacefully
reconcile the two clashing parties in East Timor by ensuring the success of
the referendum.
With the work mechanism of gathering all information received by the
Intelligence Task Force Tribuana VIII placed at various KODIMs, compiling
them, and then reporting them to the DANREM; also of acting as the technical
supervisor for DANREM by coordinating with the commanders of the KODIMs.
- In carrying out his tasks, the Defendant YAYAT SUDRAJAT assigned and
designated the personnel of Intelligence Task Force Tribuana VIII to the
KODIMs in East Timor as such:
a. Dili
- KOSATGAS Intelligence Tribuana VIII: 27 personnel
- Representative at Taibesi (logistics): 4 personnel
- BKO KODIM Dili: 10 personnel
- Kodensandha: 13 personnel
b. KODIM Los Palos: 6 personnel
c. KODIM Baucau: 10 personnel
d. KODIM Viqueque: 6 personnel
e. KODIM Manatuto: 3 personnel
f. KODIM Same: 6 personnel
g. KODIM Ainaro: 7 personnel
h. KODIM Ermera: 8 personnel
i. KODIM Liquisa: 4 personnel
j. KODIM Maliana: 12 personnel
- On April 3, 1999, the pro-independence group had threatened to murder the
pro-integration group in the village of Dato, Liquisa regency and the
community security and order situation and condition was growing to be more
volatile.
- On April 4, 1999 the pro-independence group led by JACINTO DA COSTA
PEREIRA burned down the houses of the pro-integration mass because the Besi
Merah Putih (BMP) mass from Pukelara and Maubara had burned down the house
of one FELIS BERTO DOS SANTOS and killed his son, ELIDIO, who was a part of
the troop of the pro-independence group.
- On April 5, 1999 a mass of approximately 2,000 people from the
pro-independence group took refuge in the residence of Pastor RAFAEL DOS
SANTOS at the complex of the Church of Liquisa based on the information from
Pastor HENRI of Maubara stating that the pro-integration mass would come to
attack Liquisa and that there had been shootings resulting in 2 fatalities
and 7 injured, among them were JOSE and SIRILIO DOS SANTOS, afterwards, at
approximately 16.30 WITA the mass of Besi Merah Putih (BMP) group together
with TNI troops and POLRI officers gathered at the MAKODIM of Liquisa.
- On April 6, 1999 at approximately 06.00 WITA, from the direction of
Maliana to the MAKODIM of Liquisa came BRIMOB personnel in four trucks; at
approximately 07.00 WITA, around 300 people from the pro-integration mass (the
Besi Merah Putih group) led by MANUELL SAUSA gathered and surrounded the
residence of Pastor RAFAEL DOS SANTOS, carrying generic fire arms, swords,
blades, spears, bow and arrows, while yelling "for the pro-independence
group to come out of the Church of Liquisa complex."
- That the defendant YAYAT SUDRAJAT was at Liquisa at the order of the
DANREM of 164/WS to accompany WADANREM MUDJIONO to personally check the
situation in Liquisa due to the information received from DANDIM 1638
Liquisa, Asep Kuswani (elaborated in a separate case dossier), stating that
the atmosphere in the Regency of Liquisa had become more tense between the
two conflicting groups between mass of the pro-independence group and the
mass of besi merah putih (pro-integration)
- The Defendant YAYAT SUDRAJAT was in Liquisa at that time along with 3
personnel from the Intelligence Task Force Tribuana VIII, Serda SOFYAN (aide),
Prada DIONISIUS BERE (driver) and Serda EDY (aide), along with two TNI units.
- At approximately 08.00 WITA, two Brimob personnel named DAMIANUS DAPA and
FRANSISCUS SALAMALI approached Pastor RAFAEL DOS SANTOS and asked him to
surrender JACINTO DA COSTA PEREIRA and GREGORIO DOS SANTOS but the request
was not granted by Pastor RAFAEL DOS SANTOS fearing that the pro-integration
group would murder them.
- At approximately 11.30 WITA five police officers led by Lettu. Pol JOHN
REA came to the residence of Pastor RAFAEL DOS SANTOS requesting him to
surrender JACINTO DA COSTA PEREIRA; at that time Pastor RAFAEL DOS SANTOS
gave two conditions: that JACINTO DA COSTA PEREIRA and his comrades should
be brought directly to the Police Headquarter in Dili, and that the Besi
Merah Putih mass should be drawn from Liquisa; meanwhile the pro-integration
mass threatened the refugees at the Liquisa Church Complex by yelling: "leave
the complex or the second tier mass will arrive (and) though you're in a
church by 12 o'clock WITA we would attack the church;" the situation at that
time was extremely frightening and intimidating because the TNI troops from
KODIM 1638/Liquisa and Brimob/Polri personnel from the Polres of Liquisa
joined the pro-integration/Besi Merah Putih (BMP) mass blockading the Church
of Liquisa.
- That the Defendant YAYAT SUDRAJAT and WADANREM MUDJIONO held a meeting at
the MAKODIM of Liquisa along with the DANDIM, KAPOLRES and the Regent of
Liquisa (elaborated in a separate case dossier), to discuss and listen to
the report from KASAT SERSE POLRES, JOHN REA, on the unsuccessful attempt to
negotiate with Pastor RAFAEL DOS SANTOS; then based on the report, the
Defendant YAYAT SUDRAJAT coordinated with the DANDIM, KAPOLRES and the
Regent of Liquisa (a defendant in a separate case dossier) and the result of
the meeting was to accept the two conditions forwarded by Pastor RAFAEL DOS
SANTOS and appointed the Regent of Liquisa (LEONETO MARTINS) to accept
JACINTO DA COSTA PEREIRA and his comrades under his custody; however,
fearing murder, based on mutual agreement the WADANREM (MUDJIONO) assigned
Lettu. Pol. JOHN REA to meet again with Pastor RAFAEL DOS SANTOS at his
residence; however a moment after Lettu. Pol. JOHN REA left, a gunfire was
heard, followed by the attack by Besi Merah Putih (BMP) and at that moment
the Defendant YAYAT SUDRAJAT immediately went out of the MAKODIM and rushed
to the scene wherw the Besi Merah Putih mass assisted with the troops from
TNI/Polri, including three personnel from the Intelligence Task Force
Tribuana VIII named Serda SOFYAN, Serda EDY, and Prada DIONISISUS BERE
attacked and persecuted the Pro-independence refugees mass, resulting in the
injury of 21 people, namely:
23. JOSE RAMOS
24. FRANSISCO DOS SANTOS
25. JOAO PEREIRA
26. ABILIO DOS SANTOS
27. JOSE NUNES SERRAO
28. LUCAS SOARES
29. MATEUS PANLERO
30. RICARDO RODRIGUES PEREIRA
31. LAKUMAU
32. JANUARI
33. FELIS
34. JOAO KUDA
35. ARMANDO
36. ANTONIO
37. LUIS
38. EMILIO
39. LUCAS DOS SANTOS
40. JOAO DS SANTOS
41. SEBASTIAO
42. RAMIRIO
43. MATIUS ALVES CORREIA
- The Defendant YAYAT SUDRAJAT deliberately provided the opportunity to the
pro-integration mass (the Besi Merah Putih group) and the TNI/Polri troops,
including the three personnel of the Intelligence Task Force Tribuana VIII
to commit the crime against humanity by attacking the civilians from the
pro-independence movement, by not carrying out his duties properly as the
Commander of the Intelligence Task Force Tribuana VIII, which was to create
a conducive atmosphere in the attempt to reconcile the two clashing groups,
the pro-independence and the pro-integration masses.
- The Defendant has violated the regulations in article 7 letter b jis
article 9 letter h, article 40, article 41 Law No. 26 year 2000 on the Human
Rights Court.
Taking into account that evidences have been brought in front of the court,
which are:
A. Documents:
a. A copy of TR. Pangab No. TR/50/1999 dated January 21, 1999 on the Plan of
Departure of the Task Force Tribuana VII, VIII, DENSHANDA V, VI personnel to
conflict areas of Irian Jaya and East Timor by Navy ships.
b. A copy of SEKP Danjen Kopassus No. Skep/92/XII year 1998 dated December
8, 1998 on the Assembly of the Taskforce Tribuana VIII and its assignment to
East Timor.
c. A copy of SPRIN Danjen Kopassus No. Sprin.25/35/I/1999 and No. Sprin/37/I/1999
dated January 27, 1999 on the departure of the Taskforce Tribuana VIII to
the conflict area of East Timor
d. A copy of SPRIN Danrem 164/WS No. Sprin/27/II/1999 dated February 11,
1999 on the Assignment of the Taskforce Tribuana in the conflict area of
East Timor.
e. A copy of Special Report No. R/184/Lapsus/IV/1999 dated April 7, 1999 on
the clashes and riots between the two masses of the pro-integration and
pro-independence groups in Liquisa.
The original documents were never shown to the court;
B. Explosives:
- Two units of hand grenades made in Korea under the trademark Grenade Hand
Frag Delay K % Comp. B Lot. E.C. 82 H 6001-001, EC. 85 M 605-03.
Taking into account that witnesses had delivered their accounts to the court
under oath, which in essence were as follows:
1. Witness Brigjen Inf. M. NOER MUIS
- That the witness had been examined by the Indonesian General Attorney
Investigators and the witness had verified the BAP;
- That the witness was acquainted with the Defendant Yayat Sudrajat when he
acted as the Commander of the Intelligence Task force Tribuana VIII under
the operation command (BKO) of KOREM 164/Wira Dharma while the witness acted
as the Commander of KOREM 164/WD;
- That the witness acted as DANREM 164/WD from August 3, 1999 through March
30, 2000;
- That the Intelligence Taskforce Tribuana VIII which was put under the
control (BKO) of KOREM 164/WD had the duty to assist KOREM's elements in
terms of gathering information especially regarding the demography of the
entire KOREM 164/WD area, and report all actual demographical changes
throughout East Timor to DANREM 164/WD;
- That the Taskforce Tribuana VIII was comprised of approximately 116
personnel who were stationed at the military district commands (KODIMs) of
KOREM 164/WD in East Timor;
- That all of the activities of the Taskforce Tribuana VIII personnel who
were stationed at the military district commands were to be reported to
DANDIM with a carbon copy directed to DANSATGAS Tribuana VIII;
- That the Defendant was functioned as one of the Special Staffs to assist
KOREM in monitoring and reporting any progress or changes of the most actual
demographic condition throughout KOREM 164/WD area and reporting the result
to the DANREM;
- That the witness had never heard nor received the report on the
Defendant's involvement, or any other TNI personnel for that matter, in the
Liquisa incident;
The Defendant verified the witness' accounts.
2. Witness Brigjen TNI Tono Suratman
- That the witness had been through the discovery conducted by the
Indonesian General Attorney Investigators and the witness had verified the
discovery report;
- That the witness has been acting as the DANREM 164/WD in East Timor since
July 31, 1999;
- That the witness was acquainted with the Defendant Yayat Sudrajat when he
acted as the Commander of the Intelligence Task force Tribuana VIII who
received his orders from his Command Unit through TR PANGAB TR/Jo/1999 dated
January 21, 1999 and Skep DANJEN Kopassus No. Skep/1992/XII/1988 dated
December 8, 1998 on the assignment of the Intelligence Taskforce Tribuana
VIII to East Timor;
- That the Taskforce Tribuana VIII was comprised of 116 personnel who were
stationed at the KODIMs and had the duty of ensuring the success of the
KODIMs' main task in carrying Territorial operation;
- That the personnel of the Taskforce Tribuana VIII were to report to the
DANDIM and the Commander of the Intelligence Taskforce Tribuana VIII, who
each was to report the DANREM;
- That the witness received the report on the attack of the Church/residence
of Pastor Rafael;
- That the witness never received a report that any TNI personnel were
involved in the clash at the church;
- That the military personnel who were sent to Liqusia were the WADANREM
Mudjiono, the Defendant, two groups from the Battalion Unit 744, the
Defendant's aides, all of whom were equipped with organic weaponry;
- That the witness received the report on the incident at Pastor Rafael's
church in Liquisa from the WADANREM at approximately 14.00 WITA on April
1999 via the radio which reported that there had occurred a clash between
the pro-independence and pro-integration groups that took the lives of 5
people and injured 25; meanwhile one TNI personnel received a gun shot-a
member of the Taskforce Tribuana VIII named Serda. Sofyan;
- That the witness had never received any report claiming the Defendant's of
any other TNI personnel's involvement in the Liquisa incident;
- That on April 7, 1999 the witness went to Liquisa and met Pastor Rafael
who reported that the clash between the pro-independence and the
pro-integration masses on April 6, 1999 claimed the lives of 5 people and
wounded more than 20 others.
- The Defendant verified the witness' accounts.
3. Witness JOHN REA
- That the witness had been through the discovery conducted by the
Indonesian General Attorney Investigators and the witness had verified the
discovery report;
- The witness knew that the Defendant YAYAT SUDRAJAT was stationed at the
Makodim 1638 Liquisa; the witness was not related to the Defendant;
- That the witness was ordered by the Kapolres Liquisa to negotiate with
Pastor Rafael on April 6, 1999 at 11.30 WITA at the Church of Liquisa
complex, persuading the Pastor to surrender the Suspect Jacinto Da Costa
Pereira to be interrogated by the authority;
- That on April 6, 1999 just before the incident, the witness saw that there
were some TNI personnel in the vicinity of the MAKODIM;
- That the witness saw Polri personnel taking guard at the gate of the
church by blocking the Besi Merah Putih mass who were yelling and appeared
very emotional;
- That the witness saw inside the church complex many people-men, women, and
children-taking refuge; meanwhile the mass who surrounded the church complex
were comprised entirely of men;
- That Pastor Rafael agreed to surrender Jacinto Da Costa with two
conditions: a. The gathering mass outside must be drawn out of the church
complex; and b. Jacinto Da Costa Pereira have to be interrogated at the
Polda of East Timor;
- That the witness saw the Defendant at the MAKODIM wearing a civilian
outfit; the Defendant was involved in the discussion the conditions put
forward by Pastor Rafael, which in the end was agreed upon by the Muspida;
- That during the discussion, the Defendant offered himself to go and
further negotiate with the Pastor, but Adios Salova ordered the witness
instead to go and meet Pastor Rafael;
- That the moment the witness was about to conduct the second negotiation
and tell the Pastor that his two conditions were accepted, a gunshot was
heard from the church;
- That the witness saw that the Besi Merah Putih group led by Manuel Sousa
clashed with the pro-integration mass;
- That the witness saw that the two clashing groups used fire arms, arrows,
spears, and swords;
- That the attack occurred because on April 4, 1999 at 09.45 WITA, a
pro-independence mass led by Jacinto Da Costa Pereira attacked, two women
from the pro-integration mass and burned down eleven houses, all belonged to
pro-integration mass, in Kampung Pukeilara, Dato Village, Liquisa; Jacinto
Da Costa Pereira then fled and hid at the residence of Pastor Rafael; the
pro-integration mass from the Besi Merah Putih group were raged and demanded
Jacinto to be surrendered to the authority; when gunshot ignited the already
volatile atmosphere and the clash broke out;
- That the witness saw from inside the church complex how the
pro-independence mass fled out of the church;
- That after the clash, the witness saw the TNI personnel from the MAKODIM
assisted Polri to stop the riot, hence the clash was put out;
- That the witness did not see any TNI nor Polri personnel got involved in
the riot;
- That the witness saw five bodies in a truck parked on the road near Kodim
on the afternoon of April 6, 1999; the people died due to the clash earlier
that day; other evidences found at the scene were 100 arrows, 100 blades, 20
spears, 50 knives, 20 bullets, and 15 fire arms;
- That the caretaker who buried the five bodies at the Maubara Cemetery was
the Camat of Maubara, Jose Afat;
- That the clashing mass was greater than the number of Polri personnel;
- That there were men, women, and children who hid at the back of Pastor
Rafael's residence during the clash;
- The Defendant did nor respond the witness' accounts.
4. Witness DAMIANUS DAPA
- That the witness had been through the discovery conducted by the
Indonesian General Attorney Investigators and the witness had verified the
discovery report;
- That in the month of April 1999 the witness acted as Kasat Sabhara at the
Polres of Liquisa;
- That on April 4, 1999 in Kampung Pukelara, 11 houses owned by people from
the pro-integration mass were burned down to the ground by the
pro-independence mass, led by the Village Leader, Jacinto Da Costa Pereira;
Jacinto and his accomplishes fled afterwards and hid at the residence of
Pastor Rafael; the raged pro-integration mass demanded that Jacinto Da Costa
Pereira surrendered himself and be accounted for his actions;
- That on April 6, 1999, just before the incident, the witness saw how Polri
and Brimob personnel took guard by blocking the entrance to the church
complex, while the TNI personnel were stationed at the vicinity of the
Makodim;
- That the witness, accompanied by Fransiscus Salamale and by the order of
the Kapolres of Liquisa, had a negotiation with Pastor Rafael, asking the
Pastor to surrender the alleged arsons, Jacinto Da Costa Pereira and his
accomplishes; Pastor Rafael agreed to surrender them under two conditions:
one, that Jacinto and his colleagues be transported and interrogated at the
Polda of East Timor, and two, that the Besi Merah Putih militia be drawned
from the church complex;
- That the Pastor claimed that Jacinto Da Costa was indeed at his residence
and that he would not surrender Da Costa unless the two conditions were
accepted;
- That to the extent of the witness' knowledge, the Besi Merah Putih group
was an mass based organization comprised of indigenous East Timorese in
Liquisa under their own initiative, led by Manuel Sousa;
- That the witness reported the result of the negotiation and the conditions
put forward by Pastor Rafael to the Kapolres of Liquisa, who later
instructed Lettu. Pol. John Rea, Letda Pol. Fransisco Salamale, and Serma
Donatus Mau, to conduct a further negotiation; the witness himself was
ordered to standby at the Mapolres;
- That the witness' and Letda. Fransiscus Salamale's one-platoon troop was
comprised of Brimob units from the Polda of East Timor and Polres of Liquisa;
- That the witness was sure that the available personnel would not be enough
to handle the situation if a riot broke out since they were outnumbered by
the pro-integration mass;
- That the witness was aware that there were TNI troops positioned at the
Makodim of Liquisa;
- That the witness saw and heard the pro-integration mass, led by Manuel
Sousa, gave an ultimatum from outside the gate of the church that if the
Village Leader Jacinto Da Costa Pereira were not surrendered, they would
attack the church; the witness tried to reason with Manuel Sousa and urged
him to leave, but he and his men would not listen; they further gave a
deadline of 12.00 WITA for Pastor Rafael to surrender Jacinto Da Costa or
they would begin the attack;
- That the Besi Merah Putih mass had already been in the vicinity of the
church when the witness arrived there at approximately 08.30 WITA on April
6, 1999;
- That the witness was acquainted with the Besi Merah Putih group and its
leader, but was in no way connected to them;
- That during the negotiation with Pastor Rafael, the witness saw how the
mass from the pro-integration movement built at the gate;
- That the BMP mass were carrying with them weapons such as blades and clubs;
- That the witness was later ordered to standby at the Mapolres and hence
was not aware of the following incidents that occurred at the church;
- That the witness had never heard of any Polri nor TNI personnel who was
involved in the incident at the Church of Liquisa;
- The Defendant did not respond the witness' accounts;
5. Witness ADIOS SALOVA:
- That on April 6, 1999 at approximately 11.00 WITA, at the Makodim, the
witness who acted as the Kapolres of Liquisa met with Mujiono, Asep Kuswani,
the Regent of Liquisa Leoneto Martins, and the Defendant Yayat Sudrajat, to
discuss the best way of taking Jacinto Da Costa Pereira from the residence
of Pastor Rafael; later on, John Rea came and reported that the Pastor was
willing to surrender Jacinto Da Costa provided that he were to be
surrendered directly to Kapolda and the Besi Merah Putih mass that had
gathered at his place be drawn out;
- That John Rea was then ordered to return to Pastor Rafael and tell him
that his conditions were accepted; the Defendant volunteered to take John
Rea's place in further negotiating with Pastor Rafael, but his suggestion
was not taken and Adios Salova ordered John Rea to return to Pastor Rafael
to conduct further negotiation; just as John Rea was about to leave,
gunshots were heard for 15 minutes whereupon they reacted and rushed to the
scene; half an hour later, at the scene, when the situation was still in
chaos, the witness saw the Defendant covered in blood; the Defendant claimed
that he had been assisting the victims;
- That the witness had assigned Polri and Brimob personnel to secure the
church complex before the gunshots were heard at aroung 12.00 WITA;
- That the witness as the Kapolres of Liquisa did ask the Pastor to
surrender Jacinto Da Costa since Jacinto was accountable for the attack on
11 houses that belonged to the surrounding society; the witness ordered
Damianus Dapa to meet with Pastor Rafael Dos Santos at approximately 08.30
WITA; later on, the witness ordered John Rea to negotiate with the Pastor at
around 10.00 WITA;
- That the witness assigned one platoon of the Police force comprised of 25
Polri personnel with an additional of 20 personnel from the Brimob unit to
secure the Church of Liquisa; the witness was confident that the number of
his personnel was enough to secure the mass who gathered at the church;
- That at that time the TNI personnel were still stationed at the Makodim;
- That the witness had never heard of any TNI, Polri, or Brimob personnel
who was involved in the attack against the church;
- That the witness, together with members of the Police Force and TNI,
evacuated the victims, which consist of 5 (five) dead persons and more or
less 20 injured persons;
- That the evidences shown to the witness at the court in form of 2 (two)
Korean Grenades, the witness claimed to know nothing about them.
The defendant claimed no objection to the witness's testimony.
6. Witness FRANS SALAMALI:
- That the witness as Brimob's Platoon Commander, together with his company
from Polda Dili had been BKO -ed at Polres Liquisa in April 4th 1999, and
were directly allocated in Mako Polres Liquisa.
- That it is true that since 07.00 Wita, the witness stayed around Pastor
Rafael's residence, outside the gate, with assignment to secure the house of
Pastor Rafael and the Church from the threat of attack by Besi Merah Putih
group, which was led by Mr. Manuel Sausa as the Dan Ki at that time;
- That Besi Merah Putih group was a group of people of East Timor origin
that was spontaneously emerged in order to form a security system of each
group's surrounding to avoid any security disturbance that might erupt and
support the Pro-Integration struggle;
- That the witness was acquainted with the leader of Besi Merah Putih Group
named Manuel Sausa, however the witness did not have a superior -
subordinate nor a family relation;
- That the witness had witnessed himself that inside Pastor Rafael's
residential house there were people consisting of men, women and children,
and that the witness did not see any weapon at Pastor's house;
- That Pastor Rafael's comment on the negotiation with Kapus Kodalops Jhon
Rea with the witness is that the people were taking refuge in Pastor
Rafael's house where Jacinto Da Costa was inside. However, if they were to
be allowed to get out then their safety should be ensured and that the
Pastor's request was then reported by the witness John Rea to Kapolres
Liquisa.
- That the witness had a dialog with Manuel Sousa in order to prevent Pastor
Rafael's house from being attacked by BMP Group, and Manuel Sousa's response
was that the people did not want to come home to their houses and that
according to them there were weapons, knifes, blades, arrows, and spears
inside pastor Rafael's house, which should be handed over to the security,
in this case the Police.
- That at the beginning the Witness did not see the weapons possessed by
Besi Merah Putih group;
- That when the attack happened at 12.00 Wita , which was initiated by the
sound of a gun shot, at that time the witness saw that Besi Merah Putih
squad led by Manuel Sousa was marching in to the Church complex, in
direction to Pastor's residential house with hand-made weapons, blades,
spears and clubs in possession;
- That the witness together with the members were equipped with tear gas to
stop the fighting but it was ineffective and they could not differentiate
between the civilians and the TNI because those coming out from Pastor's
house were wearing civilian outfit;
- That before the attack there was screams from outside to force the people
inside Pastor's house to get out and it turned out that they did not want to
get out, then there were blasts of fire weapons which can not be precisely
detected by the witness whether they were from inside or outside. Then in a
frontal manner, from the left, right and above, behind, there was an ambush
aimed to the inside part of the house by Besi Merah Putih Group;
- That because the situation was as such, the witness ordered the members
based on the direction from Kapuskodal to help the people coming out of
Father Pastor Rafael's house who were crying, screaming, and yelling, to be
taken to the house of Kapolres, and were transported again by Brimob 's car
to the Regent's house, they were big in numbers.
- That the witness did not see any Police, Brimob nor TNI members who was
involved in the attack inside the Church complex;
- That the witness did not recognize the evidences, both the letter nor the
grenade.
7. Witness Drs. HULMAN GULTOM:
- That the witness did not know the personnel nor the activities of Satgas
Tribuana VIII, which was BKO-ed at Kodim Dili and as Dili's Kapolres , the
witness has never been in contact with Dansatgas Tribuana.
- That the witness has never heard any report saying that the Defendant
Yayat Sudrajat was involved in the attack or mass riot in Liquisa;
- That the witness knows nothing about the activities of Satgas Tribuana
VIII in Liquisa region.
- That the witness did not recognize the evidences in forms of a copy of
letter and a grenade.
The defendant claimed no objection to the witness's testimony.
8. Witness Kol. Inf. MUDJIONO:
- That on April 6th 1999, as WADANREM WD , the witness was ordered by DANREM
WD to go to Liquisa, and for that order the witness was accompanied by
DANSATGAS TRIBUANA VIII as well as 2 (two) squads consisting of + 20 persons,
members of the TNI from KOREM WD.
- That the witness received the order separately from the order from DANREM
to DANSATGAS TRIBUANA VIII because the witness was being called separately
by DANREM.
- That other than 2 (two) units of members, in the defendant's car there
were three KOPASSUS personnel (members of SATGAS TRIBUANA VIII) who
accompanied the Defendant;
- That the Defendant, as DAN SATGAS TRIBUANA VIII was not under the WADANREM
WD's line of command, however he was under DANREM WD;
- That soon upon their arrival in Liquisa, the witness together with the
defendant held a meeting at MAKODIM Liquisa. The meeting was attended by the
Regent of Liquisa (LEONETO MARTINS), KAPOLRES Liquisa (ADIOS SALOVA),
whereby at that time, JOHN REA (Kasat Serse POLRES Liquisa)'s report was
being discussed, it was about the result of negotiation with Pastor Rafael
dos Santos in order to hand over of JACINTO and friends who stayed in the
church complex and pastor's house to the Polres, 2 (two) pre-conditions were
set, which are: that JACINTO and friends should be investigated in East
Timor Polda and that the mass blockading the church complex should be pulled
back.
- That the decision of the meeting was a consensus to accept Pastor's
conditions and to re-send John Rea to go and talk to Pastor Rafael;
- That not long after JOHN REA left MAKODIM Liquisa, there was a sound of
blasts of firearm followed by series of standard automatic weapons from the
outer side to the inner side of the church complex.
- That at that moment, all attendees of the meeting was immediately gone on
their own ways, exactly where was not known, while the witness himself,
together with Witness Asep Kuswani were heading to the back side and ordered
the squad to immediately help to stop the riot and the witness ordered the
Witness Asep Kuswani as Dandim to control the situation;
- That a moment later, situation was becoming calmer and the witness saw
that on the defendant's clothes there were many blood stains, and when the
witness asked the defendant about his blood-covered clothes, the defendant
said that he just helped the injured children;
- That what the witness knows is that there were 5 dead (five) victims, all
of them were refugees inside the Liquisa church complex. Those who were
injured consist of more than 20 (twenty) persons, all of them were already
evacuated.
- That the witness did not hear and has never received a report stating that
there was a member of TNI, POLRI, nor Brimob who has a part in attacking the
residential house of Pastor Rafael in Liquisa Church Complex;
- That the dead victims were sent to MAPOLRES Liquisa to be autopsied and
then they were buried at MAUBARA, which was conducted by Muspika led by
Camat, JOSE AFAT.
- That the witness saw that there was a member of SATGAS TRIBUANA VIII who
was injured by a shot named Serda SOFYAN.
- That it is true that when the witness returned from Liquisa to Dili in the
afternoon of April 6th 1999, all of the incident and the result of the task
was reported by the witness to DanRem.
- That there was no member of SATGAS TRIBUANA VIII who were being BKO-ed to
KODIM Liquisa before April 6th 1999.
The defendant said that the witness testimony was true.
9. Witness Letkol Inf. ASEP KUSWANI:
- That the witness had been investigated by the Investigation Officer of the
Attorney General and had signed the BAP (pre-trial statement);
- That based on the report received by the witness concerning the attack
directed to the civilians in Pastor Rafael's house, the chronology is as
follow:
- That on April 4th 1999, there was a conflict between the anti-integration
group and the pro-integration group, which engendered an excess of attacks
directed to the house of pro-integration group.
- That on April 5th 1999 the anti-integration group led by Jacinto Da Costa
Pareira was responsible for the burning and destruction as well as taking a
hostage of a child from the pro-integration group. The pro-integration group
reported the incident to the POLRI . Afterwards, the Joint-Team managed to
free the hostage and Jacinto Da Costa's group from the anti-integration side
ran away and shelter themselves at Pastor Rafael's house.
- That on April 6th 1999 the pro-integration group made a request to Pastor
Rafael through the Police for the anti-integration group that was
responsible for the burning, destruction and taking hostage led by Jacinto
and friends to be handed over to the police to be processed according to the
due process law. The police had tried to convey this proposal, however it
was not granted by Pastor Rafael. When the negotiation result from Lettu Pol.
John Rea was about to be reported to the KAPOLRES in MAKODIM, there was a
sound of a gunshot from the house of Pastor Rafael's direction to the
pro-integration direction. Afterwards, the pro-integration group
sporadically attacked the house of Pastor Rafael. As the result, there were
5 (five) dead victims and 25 (twenty five) persons were injured from both
the anti-integration group and the pro-integration group.
- That the incident was reported by the witness to Danrem 164/WD, initiated
with an early report by a radio/radio call, and was followed by a telegram.
- That 4 members of Satgas Tribuana VIII that has been BKO-ed to Kodim
Liquisa were actively begun in May 1999 and were placed at Makodim.
- That after the riot at Pastor Rafael dos Santos's house on April 6th 1999,
the witness saw the Defendant, Letkol Inf. Yayat Sudrajat accompanying
Wadanrem 164/WD Kol. Inf. Mudjiono to Kodim 1638/Liquisa and the defendant's
activity at the TKP was to help the injured victims and secure the refugees,
but during the riot, the witness did not know the defendant's action nor
activity.
- That the witness acknowledged that there was 1 (one) member of the
Defendant named Serda Sofyan that was shot at his thigh;
- That the defendant went to KODIM Liquisa with Wadanrem on April 6th 1999
around 11.30 Wita, when a negotiation was being held in Liquisa church
complex at that time.
- That the witness did not recognize the evidences shown at the court, in a
form of Korean grenade and its trigger.
The defendant's response confirmed all of the witness's testimony with an
addition that on April 17th 1999, the defendant met the witness again during
IRJEN MABES TNI .
10. Witness Letkol. Inf. SOEDJARWO:
- That the witness recognized the defendant and that they don't have family
relations;
- That the witness had held office as DANDIM Dili from August 1999 until
September 17th 1999.
- That the witness was studying at school (or training) on April 1999.
- That the witness did not know the April 1999 incident in Liquisa;
- That the witness had seen a Korean grenade during his course of education
(or training) and did not know the presence of the evidence shown at this
court.
The defendant gave no comment on the witness's testimony.
11. Witness TOYIB ANWARI:
- That the witness recognized the defendant Letkol Inf. Yayat Sudrajat as
Dansatgas Tribuana VIII when he was assigned in East Timor.
- That when he knew the Defendant, the witness was assigned as Pasi Intel
Kodim 1627 Dili;
- That the witness did not know the Defendant's activity in Liquisa and that
the witness has never heard about the defendant's involvement in Liquisa
incident;
- That the witness recognized what is called Korean grenade, however the
evidence has never been shown during investigator examination.
The defendant gave no comment on the witness's remark, but added that since
the defendant was BKO-ed he has never wore KOPASSUS uniform but adjusted
himself with attributes worn at KOREM but still with KOMANDO pin.
12. Witness Letkol. Inf. LODEWIJK FREDY PAULUS:
- That the witness has known the defendant since his graduation from AKMIL
in 1983, and that together with the defendant, the witness followed
Anti-Terror education in 1983/1984;
- That the defendant's last assignment in East Timor was as DANSATGAS
TRIBUANA VIII, while the witness took office as Operational Deputy Assistant
DANJEN KOPASSUS who was assigned to prepare the defendant's assignment as
DANSATGAS TRIBUANA VIII.
- That it is true that the defendant's assignment as DANSATGAS TRIBUANA VIII
in East Timor were to prepare the commencement of popular vote in East Timor
in a form of materials for combatant's training and to prepare logistic
requirements.
- That it is true that during the posting of SATGAS TRIBUANA VIII squad to
East Timor, the placement arrangement for the squad was never determined and
it was just determined afterwards.
- That it is true that the total number of SATGAS TRIBUANA VIII members was
116 persons.
- That it is true that every SATGAS TRIBUANA VIII commander described their
activities on duty in front of DANJEN KOPASSUS, which was also attended by
the assistants and unit commanders of KOPASSUS, after the end of their
assignments' term.
- That it is true that in relation to the defendant's man named Serda Sofyan
who was shot, it was not reported by the defendant in his activity report to
DANJEN KOPASSUS, when according to standard procedure all occurrences
related to a member should be reported in the end-term final report to his
superior.
13. Witness AGUSTINUS BERLIANTO PANGARIBUAN:
- That the witness's rank when he was assigned to East Timor was Kasat Serse
Polres Dili.
- Than in order to overcome the security and order problem in Dili, such as:
the sweeping activity which was often carried out, members of Kodim
participated in providing back-up due to the situation in the operational
area.
- That the witness recognized the Defendant Letkol Inf. Yayat Sudrajat as
Satgas Tribuana VIII commander who was once assigned in Dili, wearing
Kopassus uniform.
- That between the witness as the Chief Unit of Serse Polda Dili and Satgas
Tribuana VIII, there has never been a cooperation nor a coordination, both
personally nor in conducting his duties, he has never coordinated with the
defendant, Letkol Inf. Yayat Sudrajat.
- That the witness on April 9-30 1999 was in Bali to take a selection test
for Sesmimpol education.
- That the witness found out about the fighting incident happened in Liquisa
from TV broadcast when he was in Denpasar, Bali.
- That the investigation of Liquisa case was fully handed to POLDA East
Timor and there were 3 (three) defendants detained;
- That the witness continued to carry out the investigation process and it
was passed to the District Attorney's office for charges, however the
witness could not remember the names of the defendants anymore.
- That on the evidence, the witness did not recognize the evidences that
were being shown at the court.
The defendant response to the witness's remark was that the defendant has
never worn a red barrette but adjusted by wearing KOREM uniform.
14. Witness Letkol Inf. Drs. HERMAN SEDYONO:
- That the witness recognized the defendant Letkol Inf. Yayat Sudrajat, but
when the defendant was assigned to East Timor, the witness has never met the
defendant.
- That during the popular vote process, there were many group fighting and
all was able to be controlled by the officers; and meetings were organized
by Pemda in field attended by the pro-integration group and the
anti-integration group, peace mass held at Suai church, traditional
ceremonies commenced, all was done to ensure peaceful and friendly climate,
whatever was the result of the popular vote.
- That the witness received the circular letter from East Timor PROVINCE
concerning the incident in Liquisa in which the number of victims reached to
more than 1 (one) person.
- That the witness had been assigned to East Timor as the Regent of Covalima
from 1994 until 1999;
- That the witness heard the Liquisa incident in 1999 from the news about
the riot in Pastor Rafael's house, the news from a Daily in East Timor, that
there were dead victims from the incident but he did not know for sure the
exact number;
- That the witness did not know the cause of the clash between the pro
integration group and the pro independence group and that the witness also
did not know that there were people being investigated because of the
fighting in Liquisa;
- That the witness did not know the presence of the evidence in a form of
hand grenade that was being shown at this court.
The defendant confirmed the witness's testimony.
15. Witness Mayor Inf. SUGITO:
- That the witness was appointed as Suai's Danramil since 1992 until 1999.
- That the witness had just known the defendant since September 2000 in
relation to the investigation of the case of gross human rights violation in
East Timor in JAKARTA.
- That while holding office as Suai's Danramil, the witness has never heard
anything about Satgas Tribuana VIII that was assigned in Suai.
- That before meeting the defendant in Jakarta, he had heard stories about
the fighting between the pro-integration group and the pro-independence
group in Liquisa.
The defendant's response on the witness's remark was that the witness had
once became a member of KOPASSUS but after he went out from the unit, he was
no longer a KOPASSUS member.
16. Witness EURICO GUITERRES:
- That the witness had been investigated as a witness and signed the BAP.
- That on the incident at pastor Rafael Dos Santos's House and Liquisa
church on April 6th 1999, the witness was in Liquisa and saw the defendant,
Letkol Inf. Yayat Sudrajat in Liquisa with Wadanrem.
- That on the attack operated by the pro-integration group to Pastor Rafael
Dos Santos's house, it was caused by a killing by members of
pro-independence led by Mr. Jacinto towards a member of the pro-integration
group, and when the pro-integration group tried to chase him, Mr. Jacinto
ran and took shelter at pastor Rafael Dos Santos's house.
- That the witness in Liquisa, on April 6th 1999, based on the request of
Mgr. Belo, tried to become a mediator in the clash between the pro and
anti-integration group, but the mediation failed.
- That the witness saw that there were people gathering inside the church
and in Pastor Rafael Dos Santos's house.
- That Manuel Sousa said that before taking refuge, Jacinto and friends were
accused to have engineered the burning of the people's house and kidnapping
the pro-integration group. When it was reported to the authorized officer,
Jacinto and friends were hiding inside Pastor Rafael Dos Santos's
residential house, so that the pro-integration group demanded that Jacinto
and friends to be handed to the authority.
- That when the witness came to Pastor Rafael Dos Santos to settle the
matter of handing over Jacinto and friends and at that moment, Pastor Rafael
said that "if Leoneto Martins can, why can't we?".
- That when Wadanrem and the Defendant arrived at Liquisa, the sound of
firearms blast had not been heard yet, but in Maubara, houses had been
burned.
- That the witness saw that there were 5 (five) dead victims and some were
injured and 1 (one) TNI member was shot.
- That no one from the Police, Brimob nor the TNI was involved in the
fighting in Liquisa Church Complex;
- That it is true that the witness did not know anything about the
defendant's activities in Liquisa at the moment before the riot.
- That it is true that the Pro-Integration Fighters (Pasukan Pejuang
Pro-Integrasi) as an umbrella (organization?) for the Pro Integration group
in East Timor has been acknowledged nationally and internationally.
The defendant's response to the witness's remark is that they were all true.
17. Witness Letkol Inf. HARDIONO SAROSO, SN:
- That the witness knows the defendant during their 3 (three) years in the
Military Academy, but they do not have family relations.
- That the witness had been questioned by the investigator and the BAP was
composed and he signed it.
- That the witness was the last official in East Timor as KASREM WD/Dili.
- That the witness was in East Timor since 1997 and took office as KASREM
since June 1997.
- That as a DANSATGAS TRIBUANA VIII, the defendant had troops positioned at
KODIMs, with Liquisa as an exception, with the total number of soldiers
between 10 up to 100 persons.
- That as an officer the defendant was specifically responsible to DANREM.
- That the defendant was under the command of DANREM, while the relationship
between defendant and the witness was limited to mere coordination.
- That according to the report that was read by the witness, on April 1999
in Liquisa there had been a mass fighting between the Pro-integration group
and the anti-integration group.
- That there were 20 persons (2 groups) who went to Liquisa on April 6th
1999, while the defendant was guarded by 1 (one) assistant and 2 (two)
guards.
- That the witness recognized that the defendant's personnel, Serda SOFYAN
suffered from a shot on his thigh and was hospitalised.
- That the witness recognized that the defendant went to Liquisa with 2 (two)
groups of TNI around 08.30 WIT.
- That the fighting happened between the pro integration group and the pro
anti-integration group with both groups armed with hand-made weapons.
- That during the incident in Liquisa, other than Serda SOFYAN who was
injured, the witness did not know about other TNI members who were injured.
- That the defendant made a report to DANREM that during the incident in
Liquisa, there were 5 (five) dead victims and 20 persons were injured.
The defendant response to the witness's testimony was that it was all true.
18. Witness a de charge Serda SOFYAN:
- That the witness knew the defendant while he was in charge as a Group
Commander -4 Cijantung, but they do not have a family relations.
- That he was assigned in East Timor as a member of SATGAS TRIBUANA VIII as
an assistant for the Defendant, DANSATGAS TRIBUANA VIII.
- That the witness and the defendant went to Liquisa at 11.00 WIT on April
6th 1999, and that by the defendant's order, he was dressed as a civilian
and he brought supplies to carry out his duty for 3 (three) days and was
armed with organic weapons.
- That the witness with the defendant, as well as witness EDI SUTRISNO, DION
and 1 (one) driver of DANSATGAS TRIBUANA VIII directly went to MAKODIM on a
car.
- That the witness did not know in advance the meeting that was being
conducted at MAKODIM.
- That the witness was given an order by the defendant to monitor the
situation at the field where he saw that there were 2 (two) groups of TNI
and a member of KODIM near Makodim, and a few people were gathered outside
the gate of Liquisa Church;
- That while he was monitoring the situation as ordered by the Defendant,
the witness did not carry a weapon, and all of the Defendant's weapon which
was a gun and the witness's weapon in a form of an SS1 was kept and guarded
by witness Edi inside the car.
- That the witness saw that there were so many mass and Police officers who
were in alert position surrounding the residential house of Pastor Rafael
Dos Santos.
- That when the witness was shot, the fighting had not been started yet, and
after the shot, the witness did not know the progress of the situation.
- That the witness was never involved in the fighting incident in Liquisa;
- That there were 27 personnel of SATGAS TRIBUANA VIII under the direct
command/control of the defendant whose headquarter was in Dili.
- That the witness, the witness EDI SUTRISNO and witness DIYON, as ordered
by DANSATGAS TRIBUANA VIII, went to Liquisa.
The defendant's response on the witness's testimony was that it was all true,
and he added that the weapon carried by the defendant was a gun, as for the
rest of the members, they carried SS1.
19. Witness a de charge Serda EDI SUTRISNO:
- That the witness recognized the defendant as the witness's superior, and
that they do not have family relations.
- That the witness received an order from the defendant to stand by in the
car in order to guard the weapons.
- That the witness helped Serda SOFYAN entering the car whereby at that
moment he was limping because of the shot.
- That the witness reported to the defendant as DANSATGAS TRIBUANA VIII,
according to the defendant's input, whereby at that time the defendant asked
the witness: "Where was SOFYAN got shot?". Afterwards, the witness saw that
the defendant walked to the car with Dion.
- That when Serda SOFYAN was being taken to the hospital, the witness stayed
in the car on the driver's seat, when the witness heard the sound of a gun
shot from the right side of the car afterwards and that at that moment, the
witness was on alert position.
- That the witness stayed alert, but the witness was never involved in the
fighting;
- That at that time the witness saw that in the street junction, the
defendant carried a little child, and that he saw the defendant's clothes
were covered by blood.
- That the defendant ordered the witness to stay in the car.
- That the witness did not see a member of Satgas Tribuana VIII who was
involved in the fighting;
- That the witness heard the sound of automatic firearms' blasts/shots with
some intervals and that the witness was on alert position and he saw that
the number of officers in the field was bigger.
The defendant's response on the witness's testimony was that it was all true.
20. Witness a de charge VINISIUS IOWAY alias DIONISIUS BERE LOE:
- That the witness recognized the defendant because the witness was the
defendant's subordinate at SATGAS TRIBUANA VIII from Kopassus's Group III
with was given a package of 116 personnel and that they do not have family
relations.
- That the witness was assigned at MAKO SATGAS TRIBUANA VIII Dili since
1998, as an assistant and driver for the defendant.
- That on April 6th 1999, the witness accompanied the defendant leaving Dili
to Liquisa with Serda EDI and Serda SOFYAN around 10.00 and arrived in
Liquisa around 11 WITA. Other than the car that carried the defendant's
group and the witness, there was also the car of WADANREM escorted by 2 (two)
squads of TNI and KOREM WD or around 20 personnel.
- That after around 11.00 Wita, the witness saw the defendant entering
DANDIM Liquisa office with WADANREM, when the witness with Serda EDI and
Serda SOFYAN were waiting outside and monitoring the situation and condition
around Liquisa church complex, which was around 50 meters from MAKODIM. In
the mean time, 2 (two) squads from KOREM Dili were still getting ready in
Makodim area.
- That around 12.00 WIT, the witness heard the sound of a standard automatic
gun's blast.
- That the witness and 2 (two) members of SATGAS TRIBUANA VIII who were
leaving with the defendant were not given the letter of command, but
according to the convention at KOPASSUS corps, when the commander gives
order, the subordinate must immediately follow the order.
- That since the first sound of blast at the TKP, the witness did not know
the defendant's whereabouts and what he was doing, but a few moment later,
the witness saw that the defendant's clothes were covered with blood;
- That upon their arrival at Liquisa, the witness heard the defendant
ordering Serda SOFYAN to monitor the situation surrounding Kodim and Liquisa
Church;
- That Serda SOFYAN was shot at his thigh, but the witness did not know
where Serda Sofyan was shot;
- That the witness was never involved in Liquisa fighting and that the
witness has never heard about TNI members's involvement in Liquisa fighting.
- That the defendant was armed by a gun and the witness and 2 (two) other
members were armed with SS1, while the 2 (two) TNI squads that accompanied
the defendant's group and WADANREM were armed by full standard automatic
weapons of TNI.
- That the witness saw the defendant changed his blood-covered clothes in
the car and once they arrived at MAKOREM Dili, the defendant went to see
DANREM directly.
The defendant's response on the witness's testimony was that it was all true.
21. Expert's Remark: Prof. Dr. Muladi, S.H.:
- That the witness is an Honorary Professor at the Faculty of Law University
of Diponegoro, Semarang, with educational background of postgraduate school,
with a title of Professor Doctor, with expertise in Criminal Law, once a
member of Komnas HAM;
- That the witness did not know the defendant and he just knew him at court.
- That the system of proving the command responsibility from the superior
and the subordinate require a subordinate to be involved and proven to be
involved in a gross human rights violation;
- That someone can be considered having the position of a commander when
that person is able use his power to give an order in a binding manner and
is able to control his subordinate on the basis of command system.
- That the relations between a superior and his subordinate that is de jure
in nature is when it is based on an organic formal position according to
each rank as superior-subordinate;
- That the de facto position of a superior and his ordinate can occur
because of the situation happening spontaneously in the field, where someone
who does not have a position or rank as a commander is able to give order to
the squad in the field just like a commander.
- That both the de jure and the de facto command relations is still under
the line of the unit, which is the military with the military, or the police
with police or civilians with civilians according to the positions in the
organic unit;
- That such relationship can be called effective if it is aimed to achieve
the organization's target;
- That a troop is a part of a military unit, which is systematic and having
a hierarchy in command relations, while the subordinate is part of a unit
inside or outside the military and in relations to the power to control the
subordinate effectively;
- That the definition of being under the effective command or power and
control is a situation where a commander or a superior of the police or
other civilian position can use the power according to his position and has
the ability to prevent a criminal act (effective control), or to stop,
including to hand the perpetrator to the authority and such order is binding
to the troop or the subordinate;
- That what is defined as under the command or power is according to the
provisions which become the ground of power or command possessed by the
commander or superior;
- That TNI can take temporary action to detain the defendant, in a case
where he was caught in the act, to be later on handed to the investigator
according to the provisions in KUHAP .
- That the wide definition in the Law Number 26 Year 2000 is that the action
was taken together and it was done seriously towards the civilians.
- That in the development of the formulation of crimes under the Human
Rights Court's jurisdiction may include attack in form of killing (and the
killing of) even one person can be considered as a crime against humanity.
- That in 1999, the witness was the Minister of Justice and in May 1999 he
was the MENSESNEG.
- That the legal base for de jure accountability is a written decree/decision,
whereas de facto resolves are based on the command in the field without
having to have a written decree.
- That the wide definition is as in the example of Rwanda, Tokyo, Yugoslavia,
for a gross human rights violation where even when there was only 1 (one)
victim, if the attack was a part of a widespread or systematic attack, and
if that is not the case then it can be considered as ordinary crime.
- That the crime of omission or oversight can only be implemented in a case
where a gross human rights violation is happening or afterwards. In the mean
time if the violation has not occur and it is still an assumption then it
cannot be considered as an omission;
- That the most important thing is the commander's stance after hearing or
properly acknowledge that his squad or subordinate is committing a crime
against humanity or a crime under the jurisdiction of the Human Rights Court;
- That the case of General Yamashita in the Philippines who were accused of
mass rape where he was supposed to acknowledge or know accordingly that the
action that is being taken, or was just being taken by his troop's personnel
in the field, then the accountability form is "strict liability" (accountability
without any misconduct).
The defendant's response to the expert witness was that is was all true.
Considering that the Public Attorney has made a request at the court to read
the testimony of witnesses who had been summoned accordingly a few times,
however they were not in attendance, they are: 1. Rafael Dos Santos; 2.
Antonio Da Conceicao Santos; 3. Joao Pereira; 4. Lucas Soares; 5. Maria
Fernanda Mendes; 6. Emilio Barreto; 7. Jacinto Da Costa Freitas; 8.
Laurentino Soares alias Moko; 9. Abilio Jose Osorio Soares; with the reasons:
that because based on the letter of East Timor Attorney General that failed
to summon the witnesses based on security reason, and for the requests, the
Court has ordered the Public Attorney to read the testimony of witnesses
according to the full version of the dossier and it would be considered as
an integrated part of the content of this ruling;
Considering that based on the testimony of witnesses that was being read,
the Defendant Colonel Inf. Yayat Sudrajat stated that he denied parts of the
testimony mentioning the Defendant's involvement in a criminal act, and
stated that he refused the testimony of witnessed that contains lies and
that he requested that the testimony should not be made an evidence;
Considering that the Defendant Colonel Inf. Yayat Sudrajat has given a
testimony at court, basically as follows:
- That it is true that the defendant confirmed all of the defendant's
statement in the dossier of investigation.
- That the Defendant was a Dan Satgas Tribuana VIII who was positioned Under
the Operational Control (BKO-ed) at Korem Dili;
- That on April 6th 1999 the defendant was ordered by Dan Rem to accompany
Wadan Rem to leave Dili to control the situation in Liquisa;
- That at that moment, the defendant was ordered to check the situation and
condition in Liquisa, and then the defendant, accompanied by 3 (three) of
his guards who were members of Satgas Tribuana VIII, went together with
WADANREM's group to Liquisa, arrived at Liquisa and met the Dan-Dim,
Kapolres and Regent of Liquisa between 10.00-11.00 Wita.
- That the defendant carried a gun and the each defendant's guard, 3 (three)
persons, carried SS1 fire weapon;
- That it is true that the defendant with 3 (three) guards and WADANREM went
to Liquisa and met DANDIM, then DANDIM reported the tense situation that had/were
happened between the Pro-Integration group and Pro-Independence group that
was being handled by Kapolres Liquisa at that time.
- That it is true that Kapolres Liquisa ordered JOHN REA to mediate a
negotiation between the 2 (two) conflicting parties and the Pro-Independence
group was represented by Pastor RAFAEL DOS SANTOS;
- That after the negotiation with Pastor RAFAEL DOS SANTOS, JOHN REA
reported the negotiation result to Kapolres Liquisa concerning the situation
report at the pastor's house as well as passing the demands from Pastor
RAFAEL DOS SANTOS as follows:
• For JACINTO to be handed over to POLDA of East Timor and not POLRES
Liquisa.
• To immediately dismiss the mass from the Pro-Integration group outside the
complex and residential house of Pastor.
- That after the discussion at the meeting attended by Kapolres, DANDIM
Liquisa, WADANREM and the defendant, it was decided that the demand from
Pastor RAFAEL DOS SANTOS can be fulfilled.
- That the defendant also volunteered to conduct the negotiation with Pastor
RAFAEL DOS SANTOS, but it was not responded in the meeting;
- That when the witness John Rea left to Pastor RAFAEL DOS SANTOS's house to
re-negotiate, suddenly there was a sound of a gunshot once and then it was
followed by several standard automatic gun blasts.
- That after hearing the gun shot, all of the participants of the meeting in
Makodim Liquisa rushed out and that the defendant immediately ran forward
and saw that people are coming out of Pastor Rafael Dos Santos's house to
save themselves, at that time the defendant witnessed that the mass has
blended into one and they were slashing one another.
- That afterwards, the defendant saw an old man carrying a little child
whose hand was hurt by a stab, the defendant immediately gave his hand and
carry the blood-covered little child to be brought to a safe place;
- That during the fighting, the sound of gun shots were continuously heard,
then the police and Brimob gave a shot aimed above as a warning shot and
with the help of Kodim squad they were finally able to control the situation;
- That the defendant saw Serda SOFYAN who suffered an injury caused by a
shot where he was not in the car at that time;
- That the defendant did not bring any squad other than the 3 (three)
members according to the standard procedure;
- That he did not know and he did not recognize Manuel Sousa nor Besi Merah
Putih group, the defendant had just heard the name of Manuel Sousa after he
was being investigated in this court;
- That according to the information available, the result of Liquisa
incident was that there were 5 (five) dead victims and more than 20 (twenty)
persons were injured, but the defendant did not witness the dead victims
himself;
- That the defendant went back to Dili on April 6th 1999 in the afternoon,
and he went straight to Korem Commander to report;
- That the total personnel of SATGAS TRIBUANA VIII squad in Dili was 27
persons including the defendant and the members were directly under the
defendant's control;
- That the defendant saw that the mass was carrying weapons in forms of
blades or knifes and that none of them carried fire arms;
- That before a squad was sent to operational area, they were first prepared
with shooting practice, patrolling and maintaining physical condition;
- That the establishment of SATGAS TRIBUANA VIII squad was based on a
certain goal, in which the defendant had received information beforehand
that said that East Timor was in a turmoil and then the defendant was sent
to East Timor to help KOREM WD in carrying on the territorial operation in
order to create a condusive situation.
- That the defendant had never known anything about the incident on April
4th - 5th 1999, and was made aware about the April 6th 1999 incident in
Liquisa only after receiving the information from witness Dan Rem TONO
SURATMAN who had assigned the defendant afterwards;
- That SATGAS TRIBUANA VIII squad who went to Liquisa were equipped with
stock and equipment for 3 (three) days, which consisted of: weaponry,
ammunition, clothes and other equipment;
- That the one entitled to give orders and control all three personnel of
the defendant was the defendant himself.
- That the defendant has a family consisting of 1 (one) wife and 3 (three)
children, the oldest is in 2nd grade of high school, the second one is in
the 3rd grade of junior high school and the youngest is on the first grade
of junior high school;
- That the defendant has never been convicted before and he has never been
involved in any criminal case as a defendant beforehand.
Considering that the Court has considered everything throughout the process
of questioning at Court, for the conciseness of the ruling, it is enough for
the Court to refer to the matters presented on the dossier of the trial and
preliminary statements, in which all has been deemed to be included and
considered in this ruling;
Considering that based on all of the evidences, be it in forms of the
witness's testimony, expert's remark, defendant's statement and evidences as
well as letters in relations to one another, revealing facts in the course
of the trial which truth is undeniable, and primarily consist of the
following:
1. That it is true that the Defendant, Colonel Infantry Yayat Sudrajat took
office as a Commander of Assignment Unit (DanSatGas) Tribuana VIII since
January 1999 until December 1999, and his daily duty was accountable to the
direct superior Danrem 164 / Wira Dharma, which was positioned in Dili;
2. That it is true that the Defendant had a squad or subordinate consisting
of members of satgas, some were BKO -ed at some Kodims in Dili region;
3. That it is true that on April 4th and 5th 1999, there had been a riot in
the village of Pukelara, Region of Maubara, in the form of destruction and
burning of houses that belong to the Pro Integration group, which was done
by the Pro Independence group led by Jacinto Da Costa Pereira, who were
later on found taking refuge and hide at the residential house of Pastor
Rafael Dos Santos;
4. That it is true that on April 6th 1999 since morning, there were many
native people gathering at the residential house of Pastor Rafael, intended
to seek safe refuge, they were people from the Pro Independence group
consisting of elderly men and women as well as children. In the mean time,
outside the gate of Pastor Rafael's residence there was a mass gathering,
which was known as BMP or Besi Merah Putih under the leadership of Manuel
Sousa, it was included in the Pro Integration group consisting of men who
were all carrying traditional weapons in the forms of blades, spears, arch,
and other wood-based weapons;
5. That it is true that on April 6th 1999, outside Liquisa Church complex
there had been a group of people known as Besi Merah Putih in emotionally
screaming, demanding to Pastor Rafael Dos Santos to hand over the leader of
the Pro Independence Jacinto Da Costa Pareira, who had been known to be
inside the residential house of Pastor Rafael, to be responsible for his
action in front of the authority in order to take responsibility of his
deeds on April 4th and 5th 1999;
6. That it is true that Besi Merah Putih group had threatened in screams
that if Jacinto was not being handed over, then later on at 12.00 Wita they
would attack;
7. That it is true that Besi Merah Putih consisted of the native people of
Liquisa, East Timor, who spontaneously and out of their own free will form a
security group in their area, and in their activities they also supported
the Pro Integration group;
8. That it is true that on April 6th 1999 since morning there was Polri
squad and one company of Brimob who were standing alert and isolating the
two conflicting mass groups from each other under the leadership of witness
Letda Pol Frans Salamali.
9. That it is true that before the incident inside Liquisa Church Complex,
the members of TNI squad from Kodim were standing alert at Makodim in case
assistance/back up was required;
10. That it is true that right before noon on April 6th 1999, Muspida
Liquisa that consisted of Witness Let Kol Asep Kuswani; Witness AKBP Adios
Salova; Regent Leonato Martins, have had a meeting at Makodim 1638 Liquisa
to discuss arrangement related to the mass concentration outside Liquisa
Church Complex and the refugees who seek protection at Pastor Rafael's
residential house which was within the Church Complex.
11. That it is true that on April 6th 1999 around 10.00 Wita, the Witness
AKBP Adios Salova had ordered his subordinate, John Rea to negotiate with
Pastor Rafael Dos Santos to persuade him to hand over Jacinto and friends
who had burnt the residents' houses in Pukelara on April 4th and 5th 1999 to
be taken to Polres Liquisa office to be legally process and to suppress the
pro integration mass fury who were blockading the Church complex, but the
effort failed to succeed because Pastor Rafael did not let Jacinto to be
handed to the authority based on the reason that he was worried that he
would be killed.
12. That it is true that after the first negotiation between Pastor Rafael
Dos Santos and the Witness Lettu Pol John Rea failed and it was reported to
Witness AKBP Adios Salova that Pastor Rafael would be willing to hand over
Jacinto Da Costa with preconditions that the questioning should be done at
East Timor POLDA and that the Besi Merah Putih mass gathering around the
church area and Pastor's residential house should be dismissed and pulled
back.
13. That it is true that witness John Rea reported the first negotiation
result to Witness AKBP Adios Salova who was staying at Makodim 1638 Liquisa
at that time, also attended by Wadan Rem Let Kol Mudjiono and the Defendant
Let Kol Yayat Sudrajat with a consensus that the proposal or the
preconditions requested by Pastor Rafael Dos Santos was approved and
re-assigned Lettu Pol John Rea to see Pastor Rafael.
14. That it is true that not long after Lettu Pol John Rea left for Pastor
Rafael's residential house, suddenly there was a sound of gun shot coming
from Pastor Rafael's residential house in Liquisa Church Complex, so that
the meeting between Muspida and Wadan Rem Let Kol Mudjono and the Defendant
Yayat Sudrajat was over and every one of them left the meeting room at
Makodim Liquisa.
15. That it is true that on April 6th 1999 around 12.00 Wita there was a
sound of fire arm in the area of the mass gathering and Besi Merah Putih led
by Manuel Sousa who were armed with traditional weapons in the forms of
spears, swords, arch and wood-made clubs came inside and attacked the people
inside Pastor Rafael's house in Liquisa Church Complex.
16. That it is true that the people hiding in Pastor Rafael's residential
house consisted of men and women as well as children who were unarmed.
17. That it is true that in the mean time there were more sounds of shots
from all direction where the conflicting group mass had been blended in a
big number following the attack to Liquisa Church complex done by Besi Merah
Putih group, so that POLRI officers and Brimob squad who had built a
partition previously failed to contain or prevent the fighting between mass
groups, because Polri's force and the total number of Brimob was only less
than a hundred, far below the number of mass that reached thousands of
people.
18. That it is true that during the attack by Besi Merah Putih
pro-integration mass and the mess, the refugees inside Liquisa Church
complex were running outside to safe themselves, some are running to the
Regent's official house, Polres office and Kodim Liquisa, and in the end all
of them were directed to the official house of Liquisa Regent.
19. That it is true that Witness Let Kol Inf. Asep Kuswani ordered his
subordinates under the TNI leadership Joko Waluyo to proceed to Liquisa
Church complex to aid the Police in handling the situation and to save
Pastor Rafael Dos Santos.
20. That it is true that after the squad aid ordered by Witness Asep Kuswani
as Dandim, at that time the situation was getting calm and the riot was
under controlled.
21. That it is true that because of the incident of attack by Besi Merah
Putih mass in Pastor Rafael's residential house in Liquisa Church complex,
there were 5 (five) dead victims and around 20 (twenty) persons were injured.
22. That it is true that all of the dead victims were buried accordingly in
Maubara area based on the consensus of Muspida in Liquisa.
23. That it is true that after the situation were under controlled, a police
line were set and on the next day April 7th 1999, Polres Liquisa Team
explored the scene for the investigation and questioning to the 3 (three)
defendants in this Liquisa case.
24. That it is true that the investigation of defendants on Liquisa case was
being conducted by Polres Liquisa officers, together with Dit Serse Polda of
East Timor.
25. That it is true that from the scene, some arrows and clubs as well as
sharp weapons were found and were being collected to be secured by the
authorized Police.
26. That other facts would be discussed altogether in the assessment and
verification of the Public Attorney's indictment.
Considering that subsequently the facts above would be considered as the
basis of verification of the Public Attorney's indictment towards the
Defendant Yayat Sudrajat, which was composed as follows:
PRIMARY:
First:
Article 42 point (1) letter a, b jis. Article 7 letter b, Article 9 letter a,
Article 37, the Act of Law Number 26 Year 2000 on the Human Rights Court; -
Second:
Article 42 point (1) letter a, b jis. Article 7 letter b, Article 9 letter h,
Article 40 the Act of Law Number 26 Year 2000 on the Human Rights Court;
SUBSIDIARY:
First:
Article 7 letter b jis. Article 9 letter a, Article 37, Article 41 the Act
of Law Number 26 Year 2000 on the Human Rights Court;
Second:
Article 7 letter b, jis. Article 9 letter h, Article 40, Article 41 the Act
of Law Number 26 Year 2000 on the Human Rights Court;
Considering that in proving the indictment of the Public Attorney that was
composed alternatively in a cumulative form, it is imperative for the Court
to prove every alternative indictment by accumulating the first indictment
and the second indictment. In the case where one of the alternative
indictment has been proven legally and persuasively, then the rest of the
indictment do not have to be proven to any further extent;
"First-Primary" Indictment:
Considering that the First-Primary indictment from the Public Attorney
related to Article 42 point (1) letter a, b jis. Article 7 letter b, Article
9 letter a, Article 37, the Act of Law Number 26 Year 2000 on the Human
Rights Court was assessed as follows:
Considering that the articles of first-Primary indictment of the Public
Attorney consist of articles containing the complete elements of a criminal
act, and that there is a supplementary article to refer to the qualification
of the substantiated criminal act;
Considering that when the composition of articles in the first-Primary
indictment above is carefully examined, it is possible to deduct that the
Prosecutor intends to prove that the Defendant is liable to the crime under
the Human Rights Court's jurisdiction in a form of "killing" on the basis of
the existence of effective command and control responsibility or under the
power of effective control on the crime under the jurisdiction of Human
Rights court, which was done by the troop under his effective command and
control;
Considering that in assessing and verifying elements contained in every
article of the first-Primary indictment above, arising questions as follows
should be answered beforehand:
a. Is it true that there was a crime under the jurisdiction of Human Rights
Court?
b. Who was the perpetrator of the crime?
c. Is the Defendant liable for the crime under the jurisdiction of the Human
Rights Court?
Considering that the questions above should be answered in sequence, that is
for the later question can only be answered after the answer to the previous
question is found;-
Considering that Article 42 point (1) letter a, b the Act of Law Number 26
Year 2000 which is a provision of the new command responsibility would be
assessed after the articles that consist of the formulation of gross
violation of human rights are proven;
Considering that Article 7 letter b the Act of Law Number 26 Year 2000
stated that: "Gross violation of human rights consists of: … b. crime
against humanity".
That "gross violation of human rights covers crime against humanity" is
included in the Human Rights Court's jurisdiction;-
That the article above merely provides a name for gross violation of human
rights, which is a form of crime against humanity and it does not contain
elements of crime that has to be proven further;
That in order to know the formulation and to assess the existing elements in
the definition of the article above, it has to be related to the rest of the
indictment articles, so that this article could be proven if there are other
supplementary articles which elements have been fulfilled; -
Considering that Article 9 letter a the Act of Law Number 26 Year 2000
stated that: "Crime against humanity as mentioned in Article 7 letter b is
an act taken as a part of a widespread or systematic attack that (he) knew
to be directly targeted on civilians, in forms of: a. killings…."
Considering that the article above contains elements as follows:
1. Element of "an act taken as a part of a widespread or systematic attack";
-
2. Element of "(he) knew to be directly targeted on civilians"; -
3. Element of "the action taken in form of killing as stated in Article 340
of the Criminal Code"; -
Considering that subsequently the elements above are being assessed in
sequence as follows:
Ad. 1. Element of "an act taken as a part of a widespread or systematic
attack":
Considering that the Act of Law Number: 26 Year 2000 on the Human Rights
Court with its elaboration does not set a limitation nor a clear definition
on widespread attack, therefore in order to set a limit on the definition or
meaning on the element, the Court considered the following reasons; -
That the element of widespread contains a meaning that an action that
creates an impact nationally or internationally, such action causes a great
suffering, tangible and intangible loss, horrible, is a brutal action to
force his political intention, is taken seriously and altogether, causes
individual or communal insecurity, and involves many parties, causes series
of similar occurrences; -
That the meaning contained in the element of widespread above is enough to
be considered as provided when one of the meaning was being done by the
perpetrator;
That the facts revealed in the trial number 15, 17 and 18 stated that the
incident in front of and at Pastor Rafael's residential house was in form of
an attack conducted by Besi Merah Putih group aimed at the people seeking
protection inside Pastor Rafael's residential house in Liquisa church
complex;
That Witness Damianus Dapa and Witness John Rea explained that before the
incident occurred, the witnesses saw the young men of Besi Merah Putih
gathering in front of the Church gate screaming emotionally while holding
traditional weapons such as blades, spears, arrows and clubs;
That witness Frans Salamali who was assigned to stand alert outside the
Church gate near Pastor Rafael's residential house explained that around
12.00 Wita there was a sound of a fire arm, and at that time Besi Merah
Putih group led by Manuel Sausa who were armed with traditional weapons
started to attack Pastor Rafael's residential house inside the gate of
Liquisa Church complex;
That according to the fact revealed in the trial number 16 the people hiding
inside Pastor Rafael's residential house consisted of men and women as well
as children who were all unarmed;
That because of the attack, a riot occurred, the mass at the scene felt
afraid and screaming for help, and finally it was known that because of the
incident, Pastor Rafael's residential house was full of destruction, which
was not a small loss and that there were victims, more or less 20 (twenty)
persons were injured, and 5 (five) dead victims, according to the fact
revealed inthe trial number 21; -
Considering that based on the witnesses nor the Defendant's explanation that
stated that there was no attack aimed at the pro-independence people, but
what happened was more of a clash between Besi Merah Putih group against the
Pro Independence inside the Pastor Rafael's residential house, the Court
perceived it as follows:
That in a situation where on one side, there were people consisting of men,
women, the elders and children who were unarmed in a house inside the Church
complex to seek protection because they were afraid, and on the other side
there were people of Besi Merah Putih group who were moving inside and were
armed by traditional weapons as well as other sharp weapons in emotional
state, then the riot that happened was not a clash where the condition and
situation were balanced and both sides were attacking each other, but it was
a situation where one side was passive, seeking protection and were afraid,
and the other side was actively forcing in order to gain their objective; -
Considering that based on the assessment above, the Court thinks that the
incident happened on April 6th 1999 at Pastor Rafael's residential house
inside Liquisa Church Complex was an attack on one side by Besi Merah Putih
group aimed at another side, which was the refugees from the people of Pro
Independence who were afraid and seeking protection; -
Considering that the attack incident which caused the destruction of Pastor
Rafael's residential house and resulted in a great suffering in form of
physical loss that was not small as well as injuries and lives of victims
from that community, the Court is of the opinion that it could be
categorized as the outcome of action or a kind of action that was being
taken simultaneously and that it could be considered as brutal and horrible
action as stated in the definition of widespread attack; -
Considering that based on the points above, the Court thinks that the
sub-element of "widespread attack" has been fulfilled.
Considering that this element Ad.1 is alternative in nature, so that if "widespread"
element has been provided, then the element of "systematic" need not be
assessed anymore, however the Court perceives that it is necessary to
comment on the element of "systematic" as such:
That what is meant by the element of "systematic" is something planned as a
policy being set or an extension of a certain policy. It could happen
directly or indirectly.
That in direct nature, in this case the perpetrator was involved in
organizing the acts he wanted and intended as well as the result he wanted.
That indirectly, it could be a form of authorizing or approving action,
wanting the action to be taken, tolerating, facilitating to ease the
perpetrator in doing what he wanted. It could be carried out through
cooperation or conspiracy emerging from a policy that has been approved or
the omission to something that had happened. So that the perpetrators can
carry on his will without any obstacle. Or after the perpetrators carried on
his will, then the perpetrators indirectly took the obstructive measures,
but the impact had already occurred.
That based on the facts revealed in the trial on point 4, 5 and 6 showing
that Besi Merah Putih group led by Manuel Saosa had gathered and threatened
the people inside Pastor Rafael's residential house since morning until noon
on April 6th 1999; -
That according to facts revealed in court on number 7 group Besi Merah Putih
consisted of original East Timor people who spontaneously form and join an
organization to support the security in their respective areas. And this
group joined the Pro integration group which was an independent mass
organization outside the government's organization structure.
That the interval between April 6, 1999 morning and almost noon before 12.00
WITA, when the first gunshot was heard, gave enough time for Manuel Saosa
and members of his troops named Besi Merah Putih to consolidate and
cooperate to conspire in order to prepare the attack thoroughly.
That facts in trial show that with a signal of a gunfire shot in April 6,
1999 about 12.00 WITA, group Besi Merah Putih, led by Manuel Sousa and part
of Pro Integration group, simultaneously launched an attack from different
directions using traditional weapons to Pastor Rafael's residence, located
in Liquisa Church area, where citizens from Pro Independence group take
refuge for security.
That the attack by group Besi Merah Putih was an act of coordination or an
extension of a policy made by that organization on its own without
interference from other parties.
Considering, that based on the explanations above the Court agrees that sub
element "systematic attack" is fulfilled;
Considering, that based on the explanations above, element ad.1 "As part of
a widespread or systematic" is fulfilled;
Element ad 2 "The attack was known to be directly targeted at civilians".
Considering, that the element above could be examined as follows:
Considering, that the Explanation of Article 9 Act No 26 Year 2000 stated
that "attack targeted directly at civilians" means a series of action taken
against civilians as an extension of the policies of the authorities or
policies related to an organization; -
Considering, that the meaning above is in the same line with provisions in
Article 7 Verse 2 of the Rome Statute, which states that an attack directed
against any civilian population" means a course of conduct involving the
multiple commission of acts referred against civilian population, pursuant
to or in furtherance of a State or organizational policy to commit such
attack
That facts in trial on number 4, 5 and 6 show that before the attack at
Pastor Rafael's residence in Church Liquisa area, since morning until almost
noon around 12.00 WITA, Group Besi Merah Putih had gathered around the gate
of the Church Liquisa area; -
That based on that fact, there was a clue that shows enough time to plan a
policy by organization or group Besi Merah Putih to attack the pro
independence refugees;-
That there was no other aim inside Pastor Rafael's residence in the Church
area than the frightened refugees who were not armed at all;-
That it is an undeniable fact on number 16 that the group of refugees in
Pastor Rafael's residence was categorically civilians who became target of
the attack, consisted of men and women, children, including nuns and pators;-
Considering, that based on the explanations above, it is revealed that group
Besi Merah Putih as part of the Pro Integration group had executed an attack
with a single aim and launched directly against those civilians;-
Considering, that based on the explanations above, the Court agrees that
element ad 2 "the attack was directly targeted at civilians" is fulfilled.
Ad. 3 Element "action taken in the form of murder as stated in Article 340
Criminal Code"
Considering, that the element above is examined as follows:
Considering, that Article 340 Criminal Code states "Those who deliberately
or planned before-hand the elimination of another person's life, shall be
punished for planned murder with capital punishment or life-time
imprisonment or imprisonment with a maximum of 20 years".
That the article above includes the elements: a. deliberately; b.
premeditated; c. elimination of another person's life.
That "those" stated in the Article above is meant to know who or whoever the
person who committed the deed formulated in the related article;
That related to the question in number 1 to explain the existence of crime
under the jurisdiction of the Human Rights Court or action of gross
violation of human rights, then to know who the persons are there has to be
an explanation of the elements;
Element a. "deliberately" is examined as follows:
That the meaning of deliberate is an action performed by a person or any
perpetrator with complete awareness that the action will eliminate another
person's life;
That the perpetrator's awareness of the result that would emerge, be it
according to the objective or an intention or possibility of another person
being dead, the perpetrator did not stop the intention and even continued to
execute the action;
That according to the facts revealed in court on number 15 which basically
sates that on April 6, 1999 around 12.00 WITA, a riot happened in Pastor
Rafael's residence in Church Liquisa area, group Besi Merah Putih used
weapons to attack from outside the Church area into Pastor Rafael's
residence in that Church area;
That Witnesses Damianus Dapa, John Rea and Fransisco Salamali were all in
line constructing a fact that Besi Merah Putih group from Pro Integration
group had entered and attacked refugees from pro independence group inside
Pastor Rafael's residence, Witness saw Manuel Sousa and his members bringing
traditional weapons like spears, samurai and wooden bat;
That the account of Witness Fransisco Salamali who saw Manuel Sausa while
standing with Besi Merah Putih members outside the Church gate, and Witness
Frans Salamali asked them to dissolve because those inside were their
brothers as well, but was ignored by Manuel Sausa, they even continued
shouting for Jacinto to surrender and come out of the Pastor's residence,-
That the Ad Hoc Human Rights Court does not agree with the Defendant's Team
of Lawyers nor the Prosecutor who justify the incident in Ave Maria Church
area as a clash, by referring to the result of the analysis of the facts and
witnesses in court, the Court perceives that what happened was not a clash
but an attack by Besi Merah Putih group against unarmed civilians in Pastor
Rafael's residence;-
That under normal conditions, Besi Merah Putih group from Pro Integration
led by Manuel Sousa was aware, with consciousness intact, that the swing of
a sharp weapon in a form of samurai, spear and arrow directed to a human
body would absolutely or supposedly cause that human being to be injured and
die;
That with complete awareness and full of enthusiasm to attack covered with
irritation because Jacinto Da Costa Pereira continued to hide inside the
Pastor's residence, Besi Merah Putih group led by Manuel Sousa in fact never
stop their intention to attack, instead they continued to attack and caused
around 20 (twenty) people injured and 5 (five) people dead;-
That although different in the system of deliberation on the crime elements
or facts revealed in trial, but the Court agrees with the Prosecutor's
explanation as long as the element "deliberately" by Besi Merah Putih group
has been fulfilled;-
Considering, that based on the explanation above, according to the Court's
opinion element a. "deliberately" is fulfilled.
Element b. "premeditated" is examined as follows:
That premeditated means that between the intention to take action until the
execution of action the perpetrator had sufficient time to think composedly
how, when and with what tool the action would be executed;
That the time interval should be appropriate, meaning that it is not too
short and pressing, not too long and most importantly within the time
interval the perpetrator or crime architect could also think composedly that
he/she has a chance to cancel or stop the intention to execute the crime,
but he/she did not and even continued to execute it;
That the action executed as crime is in the form of murder;
That Witness Damianus Dapa, Frans Salamali and Adios Salva explained the
number of refugees inside the Church area is more than Besi Merah Putih
group outside the Church area;-
That thorough preparation or strategic planning of Besi Merah Putih group to
attack inside Pastor Rafael's residence in the Church area is given
sufficient time, i.e. from morning until noon around 12.00 WITA when a
gunshot was heard;
That the time interval was sufficient for Besi Merah Putih group to think,
prepare tools and weaponry and determine the mechanism and right time, or
actually it is possible for the perpetrators to stop their intention or
cancel their plan, but they never stop their intention and even continued to
attack together creating a riot that caused several people injured and dead;-
That the mass group inside the Church area was helpless and the riot stopped
after aid came from TNI soldiers ordered by Witness Asep Kuswani to help
POLRI and Brimob control the situation;
Considering, that based on the explanations above, the Court agree that
between the intention and execution of action there was sufficient time for
the perpetrators of crime to think composedly how to execute the action,
this is called planned action, so the Court agree that element b. "premeditated"
is fulfilled.
Element c. "elimination of another person's life" is examined as follows:
That the sentence "elimination of another person's life" means that during
the event there must be an action that caused another person than the
perpetrator to die;
That according to the facts revealed in court on number 21, the attack
executed by Besi Merah Putih group resulted in civilian victims consisting
of Pro Independence group inside Pastor Rafael's residence and inside the
Church of Liquisa area with 5 (five) victims dead and around 20 people
injured;-
Considering, that based on the explanation above, the Court agree that
element c. "Taking away or eliminating another person's life" is fulfilled.
Considering, that the elements above are fulfilled, if related to "those",
to know who or whoever the persons who have fulfilled the elements of action
in the indictment article, then it shows that the one who executed crime of
"murder" is Besi Merah Putih group led by Manuel Sousa;
Considering, that all elements in Article 9 a is fulfilled, then the article
of the Prosecutor's indictment should be claimed proven in court. And when
related to Article 7 letter b in the same indictment above, then it is
concluded that the Prosecutor's indictment saying that a crime happened
under the jurisdiction of the Human Rights Court or gross violation of Human
Rights in the form of "killing" is fullfilled.
Considering, that based on the explanations above, then the questions in
number 1 and 2 are answered, they are:
1. It is true that crime happened under the jurisdiction of Human Rights
Court or gross violation of Human Rights in the form of killing;
2. The Perpetrator of crime or gross violation of Human Rights is Besi Merah
Putih group led by a person named Manuel Sousa;-
Considering, that the Court would next examine about the question in point 3
about: Could the Defendant Yayat Sudrajat be held responsible for that crime
under the jurisdiction of the Human Rights court or gross violation of Human
Rights?
Considering, that to answer that question, then the next article will be
examined in indictment Primary-first i.e. Article 42 verse (1) a, b Act No.
26 Year 2000 as follows.
Considering, that Article 42 verse (1) a and b says as follows:
"A military commander or person effectively acting as a military commander
shall be criminally responsible for crimes within the jurisdiction of the
Human Right Court committed by forces under his or her effective command and
control, or effective authority and control as the case may be, as a result
of his or her failure to exercise control properly over such forces, where:
a. That military commander or person either knew or, owing to the
circumstances at the time, should have known that the forces were committing
or about to commit such crimes; and
b. That military commander or person failed to take all necessary and
appropriate/ reasonable measures within his or her power to prevent or
repress their commission or to submit the matter to the competent
authorities for inquiry, investigation and prosecution.
Considering, that the Article above includes the following elements:
1. Military commander or person effectively acting as military commander,
2. is held responsible for crime under the jurisdiction of the Human Rights
Court, executed by soldiers under his/her command and effective control, or
under his/her effective authority and control,
3. that crime is a result of absence of appropriate control, i.e.:
a. that military commander or person knows or in the situation at that time
should have known that the soldiers are executing or had just executed gross
violation of Human Rights, and
b. that military commander or person did not take appropriate and necessary
action within his power to prevent or stop that action or surrender the
perpetrators to officials with authorities to inquire, investigate, and
prosecute.
Considering, that the elements above is examined and proven as follows:
Ad.1 element "military commander or person effectively acting as military
commander".
Considering, that based on facts revealed in court on number 1, the
Defendant Col. Inf. Yayat Sudrajat acted as Commander of Task Unit (DanSatGas)
Tribuana VIII since January 1999 until September 1999, and in his daily
duties reported to his direct superior Danrem 164/Wira Dharma located in
Dili;-
It is true that the Defendant had soldiers or subordinates consists of task
unit members whom some were put in BKO in Kodims in Dili region;
Considering, that based on the explanations above, the Court agree that the
Defendant had the capacity as a military commander or a person effectively
acting as military commander so that element ad 1 "military commander or a
person effectively acting as military commander" is fulfilled;-
Element ad 2 "is held responsible for crime under the jurisdiction of the
Human Rights Court, executed by soldiers under his/her command and effective
control, or under his/her effective authority and control"
Considering, that in order to examine the element above, the Court refers to
the result of examination on Article 9 letter a i.e. it is proven that in
April 6, 1999 crime happened under the jurisdiction of the Human Rights
Court or gross violation of human rights in the form of crime against
humanity in form of killing in Pastor Rafael's residence located inside the
Church of Liquisa area executed by Besi Merah Putih group led by Manuel
Sousa;
Considering, that element ad 2 "crime under the jurisdiction of the Human
Rights Court" means the element of crime stated to be proven on Article 9
letter a i.e. "killing",-
Considering, that to prove whether element ad2 above is fulfilled by the
Defendant, then the following question should be answered:
"Was there any hierarchical command line relation and effective control
between the Defendant and Besi Merah Putih group led by Manuel Sousa?", or
vice versa "Was Besi Merah Putih a group under the command and effective
control, or under the effective authority and control of the Defendant?";
Considering, that the above question is answered as follows:
That a person is considered to have a hierarchical command line relation
with another person if there is a standard regulation stating that based on
organic position a person and the other is vertically superior and
subordinate or vice versa subordinate and superior;-
That facts in trial on number 9 claim that Besi Merah Putih group part of
Pro Integration is a mass group of original East Timorese that was
established alone from their own willingness voluntarily in order to support
security in their own region;
That according to facts revealed in court on number 15, 17 and 18, the one
who attacked refugees in Pastor Rafael's residence is Besi Merah Putih group
led by Manuel Sousa;
That during court examination, no evidence, be it in the form of documents
or witnesses, show the existence of a superior-subordinate relationship
between Besi Merah Putih group in one side and Defendant Yayat Sudrajat in
the other side;
That document evidence of photocopy of letters where the original versions
were never shown in court, according to the Court does not have the weight
as a legal evidence therefore should be put aside;
That subordinates or members under the command of the Defendant, each
Dionisius, Edi Sutrisno and Sofyan, during court examination there has been
no evidence explaining that they had performed gross violation of human
rights crime in the form of attack against the refugees in Pastor Rafael's
residence;
That Witnesses, each Frans Salamali, Damianus Dapa, John Rea, Eruico Guteres,
Mudjiono, Tono Suratman, M. Noer Muis had all explained in line that no
member of TNI, Polri and Brimob were involved in the attack, so the
Prosecutor's indictment stating that 3 (three) members of the Defendant's
troop were involved in the attack against refugees inside the Church area
and Serda Sofyan being injured was never revealed in court, so it has to be
put aside;
Considering, that based on the explanations above, then the Court agree that
the Defendant does not have a command line and effective control over Besi
Merah Putih group, and vice versa Besi Merah Putih group was not a troop
under the command and or power and effective control of the Defendant;
Considering, that based on the explanations above, then the question above
could be answered, i.e.:
"There is no hierarchical command line relation and effective control
between the Defendant Yayat Sudrajat and Besi Merah Putih group as part of
Pro integration group", and vice versa Besi Merah Putih group is not a troop
under the command and effective control, or under the effective authority
and control of the Defendant".
Considering, that with the answer of the question about the Defendant's
relations with Besi Merah Putih group, then the answer for the main question
on number 3 i.e. "Could the Defendant be held responsible for the crime
executed under the jurisdiction of the Human Rights court or gross violation
of Human Rights?", and the answer is "The Defendant Yayat Sudrajat could not
be held responsible over that gross violation of Human Rights".
Considering, that based on the explanations above, then the Court agree that
element ad 2 Article 42 verse (1) letter a and b saying "could be held
responsible over crime executed by troops under the command and effective
control, or under the effective authority and control" is not fulfilled;-
Considering, that because an element of Article 42 verse (1) letter a and b
and verse (2) Act No. 26 year 2000, then the remaining elements need not be
further examined, and Article 42 verse (1) both letter a and b Act No. 26
Year 2000 must be claimed not fulfilled;-
Considering, that because Article 42 verse (1) letter a and b and verse (2)
Act No. 26 year 2000 as part of the primary-first indictment had elements
that were not fulfilled, then on Article 37 Act No. 26 Year 2000 regulating
about crime provisions, according to the Court need not be further examined;-
Considering, that because one article of the Primary-first indictment was
not fulfilled, then indictment "Primary-first" against the defendant must be
claimed not proven legally and convincingly, and The Defendant must be
claimed free from indictment "Primary-first";-
Considering, that because indictment "Primary-first" is not proven legally
and convincingly, then the Court examine and consider indictment "Primary-second"
as follows:
Indictment "Primary - second":
Considering, that the Prosecutor's Primary-second indictment included
Article 42 verse (1) a, b, jis, Article 7 letter b, Article 9 letter h,
Article 40, Act No. 26 Year 2000 about Human Right Court is examined as
follows:
Considering that the articles of the Prosecutor's Primary-second indictment
consist of articles with complete elements formulating crime, and some are
complementary articles to define qualifications for proven crime;
Considering, that after observation over the structure of articles in the
above Primary-second indictment show the Prosecutor's desire to prove that
the Defendant could be held responsible over crime under the jurisdiction of
the Human Rights court in the form of "persecution" based on the existence
of command responsibility and effective control or under effective power
control on the occurrence of crime under the jurisdiction of the Human
Rights court, executed by troops under his command and effective control;
Considering, that in examining and proving elements in every article of the
above Primary-second indictment, the following problems must be answered
first:
a. Is it true that crime occurred under the jurisdiction of the Human Rights
court?
b. Who was the perpetrator of that crime?
c. Could the Defendant be held responsible over that crime under the
jurisdiction of the Human Rights court?
Considering, that the questions above must be answered successively, i.e.
the succeeding questions could be answered after the previous ones are
answered;-
Considering, that Article 42 verse (1) letter a, b Act No. 26 Year 2000 as
provisions about command responsibility will be examined after articles
defining gross violation of human rights could be proven;
Considering, that Article 7 letter b Act No. 26 Year 2000 stating as follows:
"Gross violation of human rights include: … b. crime against humanity".
That "gross violation of human rights includes crime against humanity" is
under the jurisdiction of Human Rights Court;-
That the article above only provides one type of gross violation of human
rights, i.e. crime against humanity and does not include elements of crime
that has to be proven further;
That to know the construction and examine elements in the definition of the
articles above, then the articles above must be related to the remaining
indictment articles, so that this article could be proven as well if
elements of other complementary articles have been fulfilled;-
Considering, that Article 9 letter h Act No. 26 year 2000 say as follows:
"Crime against humanity as defined in Article 7 letter b is an action
executed as part of a widespread or systematic attack known to be directly
targeted at civilians, in the form of: h. Persecution against any
identifiable group or collectivity on political, racial, national, ethnic,
cultural, religious, sex or other grounds that are universally recognized as
impermissible under international law, …;"
Considering, that the articles above include the following elements:
1. Element "action executed as part of a widespread or systematic attack";-
2. Element "action known to be directly targeted at civilians";-
3. Element "Persecution against any identifiable group or collectivity on
political, racial, national, ethnic, cultural, religious, sex or other
grounds that are universally recognized as impermissible under international
law, …;";-
Considering, that the elements above will be examined consecutively as
follows:
Element ad 1. "action executed as part of a widespread or systematic":
Considering, that in examining that element, it is enough to refer to the
result of examination of the same element in indictment Primary-first, where
element ad.1. "action executed as part of a widespread and systematic" is
fulfilled;-
Element ad 2. "action known to be directly targeted at civilians";-
Considering, that in examining that element, it is enough to refer to the
result of examination of the same element in indictment Primary-first
indictment, where element ad 2. "action known to be directly targeted at
civilians" is fulfilled;
Element ad 3. "Persecution against any identifiable group or collectivity on
political, racial, national, ethnic, cultural, religious, sex or other
grounds that are universally recognized as impermissible under international
law, …;";-
Considering, that the meaning of "persecution" as defined in Article 351
Criminal Code Indonesia, do not give clear meaning, but according to
constant Jurisdiction, the meaning of persecution is deliberate action that
inflicts hurt, pain or injury. While according to verse (4) Article 351
Criminal Code, persecution is the same as action to harm a person's health
deliberately;
Considering, that based on the definitions above, persecution in the context
of crime under the jurisdiction of Human Rights court include the elements:
a. "deliberate"
b. "inflicts hurt, pain or injury or harms other person's health"
c. "against any identifiable group or collectivity on political, racial,
national, ethnic, cultural, religious, sex or other grounds that are
universally recognized as impermissible under international law, …;"
Element a. "deliberately":
Considering, that in examining that element, it is enough to refer to the
result of examination of the seam element in indictment Primary-first, where
element a. "deliberately" is fulfilled.
Element b. "inflicts hurt, pain or injury or harms other person's health"
Considering, that elaboration of this element has different alternatives,
therefore could be considered proven if one of the elements is fulfilled:
Considering, that hurt, or pain, or injury or harmed health could be
considered as a person suffering from wound and need treatment for recovery;-
That medically or based on physical science publicly known, that if a person
suffers injury and need treatment to recover, that person would certainly
feel pain, or hurt or health is harmed:
That according to facts revealed in court on number 21, as result of the
attack by Besi Merah Putih mass to Pastor Rafael's residence in Church of
Liquisa area cause victims of 5 (five) people dead, and around 20 (twenty)
people injured;
That the condition of injury suffered by around 20 (twenty) people is enough
to show that actions by Besi Merah Putih group resulted in some people
feeling hurt, pain or having health disturbance or considered harmed;
Considering, that based on the examination above, the Court agree that
element b. "inflicts hurt, pain or injury or harm other person's health" is
fulfilled.
Element c. against any identifiable group or collectivity on political,
racial, national, ethnic, cultural, religious, sex or other grounds that are
universally recognized as impermissible under international law, …; is
examined as follows:
That facts revealed in court on number 7, 15, 16, 17 and 18, show that the
attack executed by Besi Merah Putih group led by Manuel Sousa with a
political view of Pro Integration was aimed at unarmed civilian refugees
which is a group with the political view of Pro Independence;
Considering, that based on the examination above, the Court agree that
element c. "persecution against any identifiable group or collectivity on
political, racial, national, ethnic, cultural, religious, sex or other
grounds that are universally recognized as impermissible under international
law" is fulfilled.
Considering, that because all elements a, b, and c is fulfilled, then
element ad 3. "action executed in the form of persecution against any
identifiable group or collectivity on political, racial, national, ethnic,
cultural, religious, sex or other grounds that are universally recognized as
impermissible under international law" is fulfilled.
Considering, that because all elements included in Article 9 h is fulfilled,
then the article which is the Prosecutor's indictment have to be claimed
proven in court. And if related to Article 7 letter b in the same indictment
above, then it is concluded that the Prosecutor's indictment state that
gross violation of Human Rights had happened in the form of persecution
against any identifiable group or collectivity on political, racial,
national, ethnic, cultural, religious, sex or other grounds that are
universally recognized as impermissible under international law" is
fulfilled;-
Considering, that it is revealed that crime as regulated in Article 7 letter
b and Article 9 letter h is considered as crime under the jurisdiction of
the Human Rights court;
Considering, that based on the examination above, then questions number 1
and 2 are answered, which are:
1. It is true that gross violation against human rights in the form of
persecution against a certain group or association based on similarities in
political view, race, nationality, ethnic, culture, religion, sex or other
reasons recognized universally as a prohibited matter according to
international law";
2. Perpetrator of that violation is Besi Merah Putih group led by Manuel
Sousa;-
Considering, that next the court will examine the question in point 3 about:
"Could the Defendant be held responsible over crime under the jurisdiction
of the Human Rights court?".
Considering, that to answer that question, then the next article in
indictment Primary-second which is Article 42 verse (1) a, b Act No. 26 Year
2000 as follows:
Considering, that in examining and proving elements of Article 42 verse (1)
a, b Act No. 26 Year 2000, it is sufficient to refer to the result of
examination and proof of the same indictment elements in the above
Primary-first indictment, where the elements in Article 42 verse (1) a, b
Act No. 26 Year 2000 is not fulfilled, therefore the Primary-second
indictment must be claimed not proven legally and convincingly, and the
Defendant Col. Inf. Yayat Sudrajat must be claimed free from the
Primary-second indictment;
Considering, that because Article 42 verse (1) a, b Act No. 26 year 2000 as
part of the second-primary indictment is not proven, then the Court agree
that Article 40 Act no 26 year 2000 about provisions of crime need not be
examined further;-
Considering, that because the Primary-second indictment is not proven, then
the Court examine and consider the Subsidiary-first indictment as follows:
Indictment ""Subsidiary-first":
Considering, that the Subsidiary-first indictment relates to Article 7
letter b, jis Article 9 letter a, Article 37, Article 41 Act No. 26 year
2000 about Human Rights Court, examined as follows:
Considering, that when the articles in the Subsidiary-first indictment are
observed, the implementation of Article 7 letter b and Article 9 letter a is
the same with the Primary-first indictment, therefore to examine and prove
those articles, it is sufficient to refer to the result of examination on
the same articles;
Considering, that the complete statement of Article 41 Act 26 Year 2000 is
as follows:
"Attempt, evil conspiracy or assistance to do violation as defined in
Article 8 or Article 9 shall be punished with the same punishment with the
provisions as defined in article 36, article 37, article 38, article 39, and
Article 40".
Considering, that the Articles above consist of the following elements:
1. Element "attempt, evil conspiracy or assistance";-
2. Element "to do violation as defined in Article 8 or Article 9 Act No. 26
year 2000".
Element ad. 1. "attempt, evil conspiracy or assistance":
Considering, that element ad. 1 above is a definition or qualification for
crime with no independent implementation, which means it must be attached
with provisions of article elements which is an independent article about
crime as in element ad.2, therefore the examination start from examination
of element ad.2 as follows;-
Considering, that the Prosecutor's Subsidiary-first indictment has referred
to Article 7 letter b and Article 9 a Act No. 26 Year 2000;-
Considering, that as the result of examination of Article 7 letter b jo.
Article 9 letter a Act No. 26 Year 2000 in Primary-first, the Court agree
that crime has happened under the jurisdiction of the Human Rights Court in
the form of "killing" or gross violation of human rights in the form of
crime of murder has been done by Besi Merah Putih group who is part of Pro
Integration group;-
Considering, that the result of examination on the Primary-first indictment
during Article 7 letter b jo. Article 9 letter a, when related to elements
of the articles.
Considering, that the result of examination on the Primary-first indictment
during Article 7 letter b jo. Article 9 letter a, when related to elements
of articles in the Subsidiary-first indictment on ad.2, according to the
Court is in line and shall be taken as result of examination of the
Subsidiary-first indictment on ad.2, i.e. element "do violation as defined
in Article 8 or Article 9 Act No. 26 year 2000";-
Considering, that based on the reference to the result of examination on the
Primary-first indictment, the Court agree that element ad. 2 "do violation
as defined in Article 8 or Article 9 Act No. 26 year 2000, is fulfilled;-
Considering, that element ad.1 Article 41 Act No. 26 year 2000 has different
alternatives, meaning that it is sufficient to prove one of the
qualifications and the remaining ones need not be examined further;-
Considering, that the first alternative as sub element ad.1. "attempt" is
examined as follows:
Considering, that until now no provision in the Act provide a certain
definition on the meaning of trial in Article 41;-
Considering, that the Court refers to what is stated in Article 53 Criminal
Code which could be considered as guideline for this examination;-
That Article 53 verse (1) Criminal Code state that attempt to commit a crime
could be subjected for punishment, if the intention of the perpetrator is
real by beginning the action and the action was not accomplished because of
other factors aside from the perpetrator's will;-
That Article 53 provides parameters where the action or crime had begun, but
never accomplished, the incompletion of the action is not due to the
perpetrator's will, but caused by other factors apart from him/herself or by
another person;-
That it is revealed from the result of examination on element ad.2. Article
41 Act No. 26 Year 2000, crime has happened under the jurisdiction of the
Human Rights court or gross violation of human rights i.e. crime against
humanity in the form of murder which is an accomplished crime, according to
the Court this clearly does not fulfill the parameter of "attempt" was
stated in Article 53 Criminal Code;-
Considering, that based on the explanation above, the Court agree that sub
element ad.1 "attempt" is not fulfilled;-
Considering, that the second alternative of sub element ad.2. "evil
conspiracy" is examined as follows:
That the Explanation of Article 41 Act No. 26 year 2000 stated that the
definition of "evil conspiracy" is when 2 (two) people or more agree to do
gross violation of human rights";-
That actually the meaning of "evil conspiracy" is known by the term "sammenspanning"
i.e. act of consensus to conduct crime;-
That the crime should be done by at least 2 (two) people or more;-
That all conversations or negotiations or meetings that are not to execute
the crime could not be included as evil conspiracy;
That no witness explained or no evidence showed that the Defendant Yayat
Sudrajat had a conversation with Besi Merah Putih group in a certain time or
place to do gross violation of human rights or crime against humanity as has
been proven to be action of murder;-
That according to facts in trial on number 13 and 14 , it was revealed that
the Defendant Yayat Sudrajat was present in the meeting with local leaders (Muspida)
in order to make peace and find solution to bring the candidate suspect
Jacinto who was in Pastor Rafael's residence;
That the Defendant's action was not to conduct crime, instead it was to
uphold the law;-
That the Defendant never acquainted with Besi Merah Putih group, and just
heard the name Manuel Sousa after being present in his trial;-
Considering, that based on the explanation above, the Court agree that the
second alternative of element ad.1 "evil conspiracy" is not fulfilled.
Considering, that the third alternative of element ad.1 "assistance" is
explained as follows:
Considering, that the definition of "assistance" is not given in any
explanation in Act No. 26 Year 2000, therefore it is needed to refer to the
definition of "assisting" regulated in Criminal Law Article 56 Criminal Code
as follows: "Punished as a person who assist in conducting crime:
1e. those who deliberately help conduct that crime;
2e. those who deliberately give opportunity, effort or information to
conduct that crime"
Considering, that the elements above are examined as follows:
Element ad.1. "deliberately help conduct that crime"
Considering, that the definition of those in the element of that article is
the Defendant Col. Inf. Yayat Sudrajat;
Considering, that for examination of element "deliberately", it is
sufficient for the Court to refer to result of examination on the
Primary-first indictment, therefore element "deliberately" is considered
fulfilled;
Considering, that element "assisting" in conducting crime, in this event has
to be in the form of a person or the Defendant being involved in conducting
the action, but does not perform all elements of crime as the perpetrator
does;
Considering, that a person could be claimed guilty in "helping to conduct"
or medeplichtig, if he/she deliberately gives assistance at the time or
before, meaning not after the crime is conducted.
Considering, that element "deliberately" is fulfilled in the Primary-first
indictment above and only valid for members of Besi Merah Putih group led by
Manuel Sousa in conducting crime against humanity in the form of murder;-
Considering, that therefore element deliberate need to be further examined
and meant for the Defendant as follows:
That in referring to the parameter of the definition of "deliberately" in
the Primary-first indictment, then a person is said to be deliberate if that
person with complete awareness will conduct crime and after knowing the
result that will definitely or probably happen, that person never restrain
his/her purpose and intention, instead continue to conduct it;-
That the event of riot that happened in Pastor Rafael's residence in Church
of Liquisa area, is an event that the Defendant never knew or predicted
before, furthermore the Defendant never exactly knew the cause of riot nor
the purpose of Besi Merah Putih group who conducted crime against humanity;-
That according to facts revealed in court, the riot pacify and dissolve
after aid came from TNI Kodim and the Defendant separated the conflicting
parties and help injured people and evacuate citizens to Kodim headquarters
and Bupati Liquisa's official residence;-
Considering, that based on the explanation above, the Court agree that
element ad.1. "deliberately help to conduct crime" is not fulfilled;
Considering, that furthermore element ad.2. "deliberately give opportunity,
effort or information to conduct that crime"
Considering, that the definition of those in that article is aimed at the
Defendant as a person who conducted "assistance" in the form or mechanism of
deliberately giving opportunity, effort or information to conduct crime on
Article 56 verse (2e) and could be interpreted as the material perpetrator
having the initiative to ask for opportunity or effort to the person who
assisted in conducting the crime;-
That during the trial, no witness explained nor any evidence show that the
perpetrator, in this case Besi Merah Putih group, has went to meet the
Defendant or conducted conversation with him with the purpose of asking for
opportunity, effort or information in any form in order to conduct the
attack against Jacinto and his friends and the Pro Independence people
inside Pastor Rafael's residence in Church of Liquisa area;
That according to the facts in trial the Defendant never knew Besi Merah
Putih group nor the person named Manuel Sousa;-
That the Defendant's action of trying to help separate the conflicting
parties and help a small child covered with blood is not an assistance to
conduct crime or violation, instead it is an action that upholds humanity;
That Witness Dionisius Bere, Witness Edi Sutrisno and Witness Mujiono all
explained that the Defendant's clothes were covered with blood for carrying
a child that was a victim of the riot;
Considering, that based on the examination above the Court agree that the
Defendant's series of action do not fulfill elements of giving opportunity,
effort or information to conduct crime against humanity in the form of
murder;-
Considering, that what the Prosecutor stated in his legal indictment as
action of omission or assistance to conduct crime against humanity is
contradictive to the fact revealed in court, therefore the Court agree that
element ad.2 "giving opportunity, effort or information to conduct crime" is
not fulfilled:
Considering, that because the result of examination on elements in Article
41 is not fulfilled on the Defendant Yayat Sudrajat, then the implementation
of Article 37 which is a crime provision need not be examined further, the
Subsidiary-first indictment is claimed not proven legally and convincingly,
and further The Defendant Col. Inf. Yayat Sudrajat must be free from the
Subsidiary-first indictment;
Indictment "Subsidiary-Second":
Considering, that next the Court would examine and prove the Prosecutor's
last indictment on the Subsidiary-second part, which refer to Article 7
letter b, jis Article 9 letter h, Article 40, Article 41 Act No.26 Year 2000
about Human Rights Court, examined and considered as follows:
Considering, that because the Prosecutor's Subsidiary-second indictment
implement the same articles, then in examining and proving that indictment,
it is sufficient for the Court to refer and take over the result of
examination on the same articles in the indictments that have been examined
above;
That to examine Article 7 letter b jo. Article 9 letter h, it is sufficient
to refer and take over the result of examination on the Primary-second
indictment where the elements are not fulfilled;
That to examine Article 41, it is sufficient to refer and take over the
result of examination on the Subsidiary-second indictment where the elements
are not fulfilled;
That because the elements of the articles in the main indictment are not
fulfilled, the Article 40, which is a provision for crime need not be
examined further, and the Subsidiary-second indictment is claimed not proven
legally and convincingly, and further The Defendant Col. Inf. Yayat Sudrajat
is ruled to be free from the Subsidiary-second indictment.
Considering, that because all the Prosecutor's indictment is claimed not
proven legally and convincingly, then The Defendant Col. Inf. Yayat Sudrajat
must be claimed free from all indictments as written on the verdict below;
Considering, that the existence of evidence shown in court in the form of
photo-copy of letters which original versions were never shown, could not
support the proof of the Prosecutor's indictment. Therefore the Court agree
that for the totality and completion of one bundle of case file, then that
document evidence should stay as an attachment in the case file, and the
Prosecutor's request to return that evidence to the General Attorney of
Republic of Indonesia is not reasonable;
Considering, that evidence in the form of 2 (two) units of hand grenades
made in Korea, according to the Court is reasonable to be returned to the
Prosecutor as the first party to propose that evidence in this trial;
Considering, that before the verdict, the Court deems it necessary to
declare the followings:
Considering, that based on the result of examination and proof of the Ad Hoc
Prosecutor's indictment, it was revealed that the mention of Pro Integration
group and Pro Independence group emerged in order to examine the existence
of riot among masses or people who gathered in the Church of Liquisa area,
i.e. Pro Independence who gather inside Pastor Rafael's residence inside the
Church gates, while Pro Integration gather outside the church gates.
Considering, that the mention of the groups as written in the Ad Hoc
Prosecutor's indictment, which the Defendant's Team of Lawyers objected or
proposed an exception at, was sufficiently reasonable and clarified the
indictment, therefore the Team of Lawyer's exception on the mention of those
terms are not reasonable and disregarded;
Considering, that the remaining exception proposed by the Team of Lawyers,
according to the Court has been examined sufficiently and considered
carefully in the Preliminary ruling and Final Ruling of this case;
Considering, that information from witnesses, who were not present in court
although have been summoned appropriately and consecutively, were then read
on the Ad Hoc Prosecutor's request, and was revealed to be denied and
rejected by the Defendant in court;
Considering, that according to the regulation, witness' information is legal
evidence when given under oath directly in the trial which was conducted for
that purpose;
Considering, that because the Defendant denied witness' information which
was read out loud, then its legal power as a witness' information is weak
and could not be considered in examining and proving the Ad Hoc Prosecutor's
indictment. This disadvantages the Ad Hoc Prosecutor in proving his
indictment;
Considering, that mistake over indictment of a crime under the jurisdiction
of the Human Rights Court is based on legal and reasonable grounds according
to the decision makers. And not based on mysterious consideration or other
party's prejudice against the Defendant that was never proven in court;
Considering, that to free the Defendant without trial, would definitely make
the victims feel harassed or contradict with the Defendant's sense of
justice.
Considering, that an act of punishment generally without clear evidence of
fault would in itself violate promises that have been uttered and contradict
with the conscience of the wise;
Considering, that religious norms state: "avoid implementation or verdict of
punishment (hudhud) as long as there are unclear matters that make the judge
doubtful";
Considering, that because the Defendant is free from all indictments, then
the cost of this case is burdened to the State, and the Defendant is given
direct rehabilitation by including a statement of rehabilitation in the
verdict below;
Considering, that at the end the Court consider the statements in the
verdict below has been based on sufficient legal grounds, therefore
considered right and just and does not surpass the authority of the Ad Hoc
Human Rights Court;
Pursuant to and considering all legal rules, which are Article 7 letter b,
Article 9 letter a and letter h, Article 37, Article 40, Article 41, Article
42 verse (1) a and b, Act No. 26 year 2000; Article 351 and Article 340
Criminal Code, Article 191 verse (1), Article 194, Article 197 Criminal Code,
Article 14 verse (1) Government Regulation No. 27 Year 1983, and other
related provisions of rules;
RULING
I. State the Defendant Col. Inf. Yayat Sudrajat is not proven legally and
convincingly guilty in doing crime indicted in the Primary-first,
Primary-second. Subsidiary-first and Subsidiary-second indictments;
II. Free the Defendant Col. Inf. Yayat Sudrajat from all Primary-first,
Primary-second, Subsidiary-first and Subsidiary-second indictments;
III. Recover the Defendant's rights in capacity, position, pride and dignity.
IV. Burden the cost of case to the State.
V. Claim that evidence in the form of:
A. Documents:
1. Photo copy of TR. Pangab No.: TR/50/1999 date January 21, 1999 about Plan
for Departure or Personnel joining Satgas Tribuana VII, VIII, DESHANDA V, VI
to volatile regions Irian Jaya and East Timor using Navy ships;
2. Photo copy of SKEP Danjen Kopasus No: Skep/92/XII year 1998 date December
8, 1998 about Establishment of Satgas Tribuana VIII for assignment to new
region East Timor;
3. Photo copy of SPRIN Danjen Kopassus No: Sprin/35/1/1999 and No Sprin/37/1/1999,
date January 27, 1999 about departure of Satgas Tribuana VIII to volatile
region East Timor;
4. Photo copy of SPRIN Danrem 164/WD No Sprin/27/II/1999 date February 11,
1999 about Task Implementation of Satgas Tribuana in volatile region East
Timor;
5. Photo copy of Special Report No: R/184/Lapsus/IV/1999 date April 7, 1999
about conflict between Pro Integration mass group and Anti Integration group
in Liquisa region;
still attached in the case file.
B. Explosives:
- 2 (two) unit of hand grenades made in Korea brand Grenade Hand Frag Delay
K 5 Comp. B Lot. E.C. 82 H 6001-001, EC. 85. M 605-03;
returned to the Prosecutor for other cases.
Thus decided in the meeting of the Ad Human Rights Panel of Judges on Friday,
December 27, 2002, with the Panel consisting of Cicut Sutiarso, SH, MH, as
Chair of Judge, Jalaluddin, SH, Abdulrahman, SH, MH, Amiruddin, SH, and Prof.
Dr. Rachmat Syafei, MA, each as Member Judge according to the Resolution of
Chair of Human Rights Court in State Court Central Jakarta No. 11/Pid.Ham/Ad
Hoc/2002/PN.Jkt.Pst, dated July2, 2002. The verdict was claimed in a court
open for public on Monday, December 30, 2002 by the Chair of Judge together
with Member Judges, together with Lindawati Serikit, SH and Yanwitra, SH, MH,
Ida Iskandaria, SH, Substitute Registrar on that Court, and attended by
YUSUF, SH and Z.DJAFRIN, SH, as Ad Hoc Prosecutor and the Defendant assisted
by his Team of Lawyers.
That according to facts revealed in court on number 7 group Besi Merah Putih
consisted of original East Timor people who spontaneously form and join an
organization to support the security in their respective areas. And this
group joined the Pro integration group which was an independent mass
organization outside the government's organization structure.
That the interval between April 6, 1999 morning and almost noon before 12.00
WITA, when the first gunshot was heard, gave enough time for Manuel Saosa
and members of his troops named Besi Merah Putih to consolidate and
cooperate to conspire in order to prepare the attack thoroughly.
That facts in trial show that with a signal of a gunfire shot in April 6,
1999 about 12.00 WITA, group Besi Merah Putih, led by Manuel Sousa and part
of Pro Integration group, simultaneously launched an attack from different
directions using traditional weapons to Pastor Rafael's residence, located
in Liquisa Church area, where citizens from Pro Independence group take
refuge for security.
That the attack by group Besi Merah Putih was an act of coordination or an
extension of a policy made by that organization on its own without
interference from other parties.
Considering, that based on the explanations above the Court agrees that sub
element "systematic attack" is fulfilled;
Considering, that based on the explanations above, element ad.1 "As part of
a widespread or systematic" is fulfilled;
Element ad 2 "The attack was known to be directly targeted at civilians".
Considering, that the element above could be examined as follows:
Considering, that the Explanation of Article 9 Act No 26 Year 2000 stated
that "attack targeted directly at civilians" means a series of action taken
against civilians as an extension of the policies of the authorities or
policies related to an organization; -
Considering, that the meaning above is in the same line with provisions in
Article 7 Verse 2 of the Rome Statute, which states that an attack directed
against any civilian population" means a course of conduct involving the
multiple commission of acts referred against civilian population, pursuant
to or in furtherance of a State or organizational policy to commit such
attack
That facts in trial on number 4, 5 and 6 show that before the attack at
Pastor Rafael's residence in Church Liquisa area, since morning until almost
noon around 12.00 WITA, Group Besi Merah Putih had gathered around the gate
of the Church Liquisa area; -
That based on that fact, there was a clue that shows enough time to plan a
policy by organization or group Besi Merah Putih to attack the pro
independence refugees;-
That there was no other aim inside Pastor Rafael's residence in the Church
area than the frightened refugees who were not armed at all;-
That it is an undeniable fact on number 16 that the group of refugees in
Pastor Rafael's residence was categorically civilians who became target of
the attack, consisted of men and women, children, including nuns and pators;-
Considering, that based on the explanations above, it is revealed that group
Besi Merah Putih as part of the Pro Integration group had executed an attack
with a single aim and launched directly against those civilians;-
Considering, that based on the explanations above, the Court agrees that
element ad 2 "the attack was directly targeted at civilians" is fulfilled.
Ad. 3 Element "action taken in the form of murder as stated in Article 340
Criminal Code"
Considering, that the element above is examined as follows:
Considering, that Article 340 Criminal Code states "Those who deliberately
or planned before-hand the elimination of another person's life, shall be
punished for planned murder with capital punishment or life-time
imprisonment or imprisonment with a maximum of 20 years".
That the article above includes the elements: a. deliberately; b.
premeditated; c. elimination of another person's life.
That "those" stated in the Article above is meant to know who or whoever the
person who committed the deed formulated in the related article;
That related to the question in number 1 to explain the existence of crime
under the jurisdiction of the Human Rights Court or action of gross
violation of human rights, then to know who the persons are there has to be
an explanation of the elements;
Element a. "deliberately" is examined as follows:
That the meaning of deliberate is an action performed by a person or any
perpetrator with complete awareness that the action will eliminate another
person's life;
That the perpetrator's awareness of the result that would emerge, be it
according to the objective or an intention or possibility of another person
being dead, the perpetrator did not stop the intention and even continued to
execute the action;
That according to the facts revealed in court on number 15 which basically
sates that on April 6, 1999 around 12.00 WITA, a riot happened in Pastor
Rafael's residence in Church Liquisa area, group Besi Merah Putih used
weapons to attack from outside the Church area into Pastor Rafael's
residence in that Church area;
That Witnesses Damianus Dapa, John Rea and Fransisco Salamali were all in
line constructing a fact that Besi Merah Putih group from Pro Integration
group had entered and attacked refugees from pro independence group inside
Pastor Rafael's residence, Witness saw Manuel Sousa and his members bringing
traditional weapons like spears, samurai and wooden bat;
That the account of Witness Fransisco Salamali who saw Manuel Sausa while
standing with Besi Merah Putih members outside the Church gate, and Witness
Frans Salamali asked them to dissolve because those inside were their
brothers as well, but was ignored by Manuel Sausa, they even continued
shouting for Jacinto to surrender and come out of the Pastor's residence,-
That the Ad Hoc Human Rights Court does not agree with the Defendant's Team
of Lawyers nor the Prosecutor who justify the incident in Ave Maria Church
area as a clash, by referring to the result of the analysis of the facts and
witnesses in court, the Court perceives that what happened was not a clash
but an attack by Besi Merah Putih group against unarmed civilians in Pastor
Rafael's residence;-
That under normal conditions, Besi Merah Putih group from Pro Integration
led by Manuel Sousa was aware, with consciousness intact, that the swing of
a sharp weapon in a form of samurai, spear and arrow directed to a human
body would absolutely or supposedly cause that human being to be injured and
die;
That with complete awareness and full of enthusiasm to attack covered with
irritation because Jacinto Da Costa Pereira continued to hide inside the
Pastor's residence, Besi Merah Putih group led by Manuel Sousa in fact never
stop their intention to attack, instead they continued to attack and caused
around 20 (twenty) people injured and 5 (five) people dead;-
That although different in the system of deliberation on the crime elements
or facts revealed in trial, but the Court agrees with the Prosecutor's
explanation as long as the element "deliberately" by Besi Merah Putih group
has been fulfilled;-
Considering, that based on the explanation above, according to the Court's
opinion element a. "deliberately" is fulfilled.
Element b. "premeditated" is examined as follows:
That premeditated means that between the intention to take action until the
execution of action the perpetrator had sufficient time to think composedly
how, when and with what tool the action would be executed;
That the time interval should be appropriate, meaning that it is not too
short and pressing, not too long and most importantly within the time
interval the perpetrator or crime architect could also think composedly that
he/she has a chance to cancel or stop the intention to execute the crime,
but he/she did not and even continued to execute it;
That the action executed as crime is in the form of murder;
That Witness Damianus Dapa, Frans Salamali and Adios Salva explained the
number of refugees inside the Church area is more than Besi Merah Putih
group outside the Church area;-
That thorough preparation or strategic planning of Besi Merah Putih group to
attack inside Pastor Rafael's residence in the Church area is given
sufficient time, i.e. from morning until noon around 12.00 WITA when a
gunshot was heard;
That the time interval was sufficient for Besi Merah Putih group to think,
prepare tools and weaponry and determine the mechanism and right time, or
actually it is possible for the perpetrators to stop their intention or
cancel their plan, but they never stop their intention and even continued to
attack together creating a riot that caused several people injured and dead;-
That the mass group inside the Church area was helpless and the riot stopped
after aid came from TNI soldiers ordered by Witness Asep Kuswani to help
POLRI and Brimob control the situation;
Considering, that based on the explanations above, the Court agree that
between the intention and execution of action there was sufficient time for
the perpetrators of crime to think composedly how to execute the action,
this is called planned action, so the Court agree that element b. "premeditated"
is fulfilled.
Element c. "elimination of another person's life" is examined as follows:
That the sentence "elimination of another person's life" means that during
the event there must be an action that caused another person than the
perpetrator to die;
That according to the facts revealed in court on number 21, the attack
executed by Besi Merah Putih group resulted in civilian victims consisting
of Pro Independence group inside Pastor Rafael's residence and inside the
Church of Liquisa area with 5 (five) victims dead and around 20 people
injured;-
Considering, that based on the explanation above, the Court agree that
element c. "Taking away or eliminating another person's life" is fulfilled.
Considering, that the elements above are fulfilled, if related to "those",
to know who or whoever the persons who have fulfilled the elements of action
in the indictment article, then it shows that the one who executed crime of
"murder" is Besi Merah Putih group led by Manuel Sousa;
Considering, that all elements in Article 9 a is fulfilled, then the article
of the Prosecutor's indictment should be claimed proven in court. And when
related to Article 7 letter b in the same indictment above, then it is
concluded that the Prosecutor's indictment saying that a crime happened
under the jurisdiction of the Human Rights Court or gross violation of Human
Rights in the form of "killing" is fullfilled.
Considering, that based on the explanations above, then the questions in
number 1 and 2 are answered, they are:
3. It is true that crime happened under the jurisdiction of Human Rights
Court or gross violation of Human Rights in the form of killing;
4. The Perpetrator of crime or gross violation of Human Rights is Besi Merah
Putih group led by a person named Manuel Sousa;-
Considering, that the Court would next examine about the question in point 3
about: Could the Defendant Yayat Sudrajat be held responsible for that crime
under the jurisdiction of the Human Rights court or gross violation of Human
Rights?
Considering, that to answer that question, then the next article will be
examined in indictment Primary-first i.e. Article 42 verse (1) a, b Act No.
26 Year 2000 as follows.
Considering, that Article 42 verse (1) a and b says as follows:
"A military commander or person effectively acting as a military commander
shall be criminally responsible for crimes within the jurisdiction of the
Human Right Court committed by forces under his or her effective command and
control, or effective authority and control as the case may be, as a result
of his or her failure to exercise control properly over such forces, where:
c. That military commander or person either knew or, owing to the
circumstances at the time, should have known that the forces were committing
or about to commit such crimes; and
d. That military commander or person failed to take all necessary and
appropriate/ reasonable measures within his or her power to prevent or
repress their commission or to submit the matter to the competent
authorities for inquiry, investigation and prosecution.
Considering, that the Article above includes the following elements:
4. Military commander or person effectively acting as military commander,
5. is held responsible for crime under the jurisdiction of the Human Rights
Court, executed by soldiers under his/her command and effective control, or
under his/her effective authority and control,
6. that crime is a result of absence of appropriate control, i.e.:
c. that military commander or person knows or in the situation at that time
should have known that the soldiers are executing or had just executed gross
violation of Human Rights, and
d. that military commander or person did not take appropriate and necessary
action within his power to prevent or stop that action or surrender the
perpetrators to officials with authorities to inquire, investigate, and
prosecute.
Considering, that the elements above is examined and proven as follows:
Ad.1 element "military commander or person effectively acting as military
commander".
Considering, that based on facts revealed in court on number 1, the
Defendant Col. Inf. Yayat Sudrajat acted as Commander of Task Unit (DanSatGas)
Tribuana VIII since January 1999 until September 1999, and in his daily
duties reported to his direct superior Danrem 164/Wira Dharma located in
Dili;-
It is true that the Defendant had soldiers or subordinates consists of task
unit members whom some were put in BKO in Kodims in Dili region;
Considering, that based on the explanations above, the Court agree that the
Defendant had the capacity as a military commander or a person effectively
acting as military commander so that element ad 1 "military commander or a
person effectively acting as military commander" is fulfilled;-
Element ad 2 "is held responsible for crime under the jurisdiction of the
Human Rights Court, executed by soldiers under his/her command and effective
control, or under his/her effective authority and control"
Considering, that in order to examine the element above, the Court refers to
the result of examination on Article 9 letter a i.e. it is proven that in
April 6, 1999 crime happened under the jurisdiction of the Human Rights
Court or gross violation of human rights in the form of crime against
humanity in form of killing in Pastor Rafael's residence located inside the
Church of Liquisa area executed by Besi Merah Putih group led by Manuel
Sousa;
Considering, that element ad 2 "crime under the jurisdiction of the Human
Rights Court" means the element of crime stated to be proven on Article 9
letter a i.e. "killing",-
Considering, that to prove whether element ad2 above is fulfilled by the
Defendant, then the following question should be answered:
"Was there any hierarchical command line relation and effective control
between the Defendant and Besi Merah Putih group led by Manuel Sousa?", or
vice versa "Was Besi Merah Putih a group under the command and effective
control, or under the effective authority and control of the Defendant?";
Considering, that the above question is answered as follows:
That a person is considered to have a hierarchical command line relation
with another person if there is a standard regulation stating that based on
organic position a person and the other is vertically superior and
subordinate or vice versa subordinate and superior;-
That facts in trial on number 9 claim that Besi Merah Putih group part of
Pro Integration is a mass group of original East Timorese that was
established alone from their own willingness voluntarily in order to support
security in their own region;
That according to facts revealed in court on number 15, 17 and 18, the one
who attacked refugees in Pastor Rafael's residence is Besi Merah Putih group
led by Manuel Sousa;
That during court examination, no evidence, be it in the form of documents
or witnesses, show the existence of a superior-subordinate relationship
between Besi Merah Putih group in one side and Defendant Yayat Sudrajat in
the other side;
That document evidence of photocopy of letters where the original versions
were never shown in court, according to the Court does not have the weight
as a legal evidence therefore should be put aside;
That subordinates or members under the command of the Defendant, each
Dionisius, Edi Sutrisno and Sofyan, during court examination there has been
no evidence explaining that they had performed gross violation of human
rights crime in the form of attack against the refugees in Pastor Rafael's
residence;
That Witnesses, each Frans Salamali, Damianus Dapa, John Rea, Eruico Guteres,
Mudjiono, Tono Suratman, M. Noer Muis had all explained in line that no
member of TNI, Polri and Brimob were involved in the attack, so the
Prosecutor's indictment stating that 3 (three) members of the Defendant's
troop were involved in the attack against refugees inside the Church area
and Serda Sofyan being injured was never revealed in court, so it has to be
put aside;
Considering, that based on the explanations above, then the Court agree that
the Defendant does not have a command line and effective control over Besi
Merah Putih group, and vice versa Besi Merah Putih group was not a troop
under the command and or power and effective control of the Defendant;
Considering, that based on the explanations above, then the question above
could be answered, i.e.:
"There is no hierarchical command line relation and effective control
between the Defendant Yayat Sudrajat and Besi Merah Putih group as part of
Pro integration group", and vice versa Besi Merah Putih group is not a troop
under the command and effective control, or under the effective authority
and control of the Defendant".
Considering, that with the answer of the question about the Defendant's
relations with Besi Merah Putih group, then the answer for the main question
on number 3 i.e. "Could the Defendant be held responsible for the crime
executed under the jurisdiction of the Human Rights court or gross violation
of Human Rights?", and the answer is "The Defendant Yayat Sudrajat could not
be held responsible over that gross violation of Human Rights".
Considering, that based on the explanations above, then the Court agree that
element ad 2 Article 42 verse (1) letter a and b saying "could be held
responsible over crime executed by troops under the command and effective
control, or under the effective authority and control" is not fulfilled;-
Considering, that because an element of Article 42 verse (1) letter a and b
and verse (2) Act No. 26 year 2000, then the remaining elements need not be
further examined, and Article 42 verse (1) both letter a and b Act No. 26
Year 2000 must be claimed not fulfilled;-
Considering, that because Article 42 verse (1) letter a and b and verse (2)
Act No. 26 year 2000 as part of the primary-first indictment had elements
that were not fulfilled, then on Article 37 Act No. 26 Year 2000 regulating
about crime provisions, according to the Court need not be further examined;-
Considering, that because one article of the Primary-first indictment was
not fulfilled, then indictment "Primary-first" against the defendant must be
claimed not proven legally and convincingly, and The Defendant must be
claimed free from indictment "Primary-first";-
Considering, that because indictment "Primary-first" is not proven legally
and convincingly, then the Court examine and consider indictment "Primary-second"
as follows:
Indictment "Primary - second":
Considering, that the Prosecutor's Primary-second indictment included
Article 42 verse (1) a, b, jis, Article 7 letter b, Article 9 letter h,
Article 40, Act No. 26 Year 2000 about Human Right Court is examined as
follows:
Considering that the articles of the Prosecutor's Primary-second indictment
consist of articles with complete elements formulating crime, and some are
complementary articles to define qualifications for proven crime;
Considering, that after observation over the structure of articles in the
above Primary-second indictment show the Prosecutor's desire to prove that
the Defendant could be held responsible over crime under the jurisdiction of
the Human Rights court in the form of "persecution" based on the existence
of command responsibility and effective control or under effective power
control on the occurrence of crime under the jurisdiction of the Human
Rights court, executed by troops under his command and effective control;
Considering, that in examining and proving elements in every article of the
above Primary-second indictment, the following problems must be answered
first:
a. Is it true that crime occurred under the jurisdiction of the Human Rights
court?
b. Who was the perpetrator of that crime?
c. Could the Defendant be held responsible over that crime under the
jurisdiction of the Human Rights court?
Considering, that the questions above must be answered successively, i.e.
the succeeding questions could be answered after the previous ones are
answered;-
Considering, that Article 42 verse (1) letter a, b Act No. 26 Year 2000 as
provisions about command responsibility will be examined after articles
defining gross violation of human rights could be proven;
Considering, that Article 7 letter b Act No. 26 Year 2000 stating as follows:
"Gross violation of human rights include: … b. crime against humanity".
That "gross violation of human rights includes crime against humanity" is
under the jurisdiction of Human Rights Court;-
That the article above only provides one type of gross violation of human
rights, i.e. crime against humanity and does not include elements of crime
that has to be proven further;
That to know the construction and examine elements in the definition of the
articles above, then the articles above must be related to the remaining
indictment articles, so that this article could be proven as well if
elements of other complementary articles have been fulfilled;-
Considering, that Article 9 letter h Act No. 26 year 2000 say as follows:
"Crime against humanity as defined in Article 7 letter b is an action
executed as part of a widespread or systematic attack known to be directly
targeted at civilians, in the form of: h. Persecution against any
identifiable group or collectivity on political, racial, national, ethnic,
cultural, religious, sex or other grounds that are universally recognized as
impermissible under international law, …;"
Considering, that the articles above include the following elements:
4. Element "action executed as part of a widespread or systematic attack";-
5. Element "action known to be directly targeted at civilians";-
6. Element "Persecution against any identifiable group or collectivity on
political, racial, national, ethnic, cultural, religious, sex or other
grounds that are universally recognized as impermissible under international
law, …;";-
Considering, that the elements above will be examined consecutively as
follows:
Element ad 1. "action executed as part of a widespread or systematic":
Considering, that in examining that element, it is enough to refer to the
result of examination of the same element in indictment Primary-first, where
element ad.1. "action executed as part of a widespread and systematic" is
fulfilled;-
Element ad 2. "action known to be directly targeted at civilians";-
Considering, that in examining that element, it is enough to refer to the
result of examination of the same element in indictment Primary-first
indictment, where element ad 2. "action known to be directly targeted at
civilians" is fulfilled;
Element ad 3. "Persecution against any identifiable group or collectivity on
political, racial, national, ethnic, cultural, religious, sex or other
grounds that are universally recognized as impermissible under international
law, …;";-
Considering, that the meaning of "persecution" as defined in Article 351
Criminal Code Indonesia, do not give clear meaning, but according to
constant Jurisdiction, the meaning of persecution is deliberate action that
inflicts hurt, pain or injury. While according to verse (4) Article 351
Criminal Code, persecution is the same as action to harm a person's health
deliberately;
Considering, that based on the definitions above, persecution in the context
of crime under the jurisdiction of Human Rights court include the elements:
d. "deliberate"
e. "inflicts hurt, pain or injury or harms other person's health"
f. "against any identifiable group or collectivity on political, racial,
national, ethnic, cultural, religious, sex or other grounds that are
universally recognized as impermissible under international law, …;"
Element a. "deliberately":
Considering, that in examining that element, it is enough to refer to the
result of examination of the seam element in indictment Primary-first, where
element a. "deliberately" is fulfilled.
Element b. "inflicts hurt, pain or injury or harms other person's health"
Considering, that elaboration of this element has different alternatives,
therefore could be considered proven if one of the elements is fulfilled:
Considering, that hurt, or pain, or injury or harmed health could be
considered as a person suffering from wound and need treatment for recovery;-
That medically or based on physical science publicly known, that if a person
suffers injury and need treatment to recover, that person would certainly
feel pain, or hurt or health is harmed:
That according to facts revealed in court on number 21, as result of the
attack by Besi Merah Putih mass to Pastor Rafael's residence in Church of
Liquisa area cause victims of 5 (five) people dead, and around 20 (twenty)
people injured;
That the condition of injury suffered by around 20 (twenty) people is enough
to show that actions by Besi Merah Putih group resulted in some people
feeling hurt, pain or having health disturbance or considered harmed;
Considering, that based on the examination above, the Court agree that
element b. "inflicts hurt, pain or injury or harm other person's health" is
fulfilled.
Element c. against any identifiable group or collectivity on political,
racial, national, ethnic, cultural, religious, sex or other grounds that are
universally recognized as impermissible under international law, …; is
examined as follows:
That facts revealed in court on number 7, 15, 16, 17 and 18, show that the
attack executed by Besi Merah Putih group led by Manuel Sousa with a
political view of Pro Integration was aimed at unarmed civilian refugees
which is a group with the political view of Pro Independence;
Considering, that based on the examination above, the Court agree that
element c. "persecution against any identifiable group or collectivity on
political, racial, national, ethnic, cultural, religious, sex or other
grounds that are universally recognized as impermissible under international
law" is fulfilled.
Considering, that because all elements a, b, and c is fulfilled, then
element ad 3. "action executed in the form of persecution against any
identifiable group or collectivity on political, racial, national, ethnic,
cultural, religious, sex or other grounds that are universally recognized as
impermissible under international law" is fulfilled.
Considering, that because all elements included in Article 9 h is fulfilled,
then the article which is the Prosecutor's indictment have to be claimed
proven in court. And if related to Article 7 letter b in the same indictment
above, then it is concluded that the Prosecutor's indictment state that
gross violation of Human Rights had happened in the form of persecution
against any identifiable group or collectivity on political, racial,
national, ethnic, cultural, religious, sex or other grounds that are
universally recognized as impermissible under international law" is
fulfilled;-
Considering, that it is revealed that crime as regulated in Article 7 letter
b and Article 9 letter h is considered as crime under the jurisdiction of
the Human Rights court;
Considering, that based on the examination above, then questions number 1
and 2 are answered, which are:
3. It is true that gross violation against human rights in the form of
persecution against a certain group or association based on similarities in
political view, race, nationality, ethnic, culture, religion, sex or other
reasons recognized universally as a prohibited matter according to
international law";
4. Perpetrator of that violation is Besi Merah Putih group led by Manuel
Sousa;-
Considering, that next the court will examine the question in point 3 about:
"Could the Defendant be held responsible over crime under the jurisdiction
of the Human Rights court?".
Considering, that to answer that question, then the next article in
indictment Primary-second which is Article 42 verse (1) a, b Act No. 26 Year
2000 as follows:
Considering, that in examining and proving elements of Article 42 verse (1)
a, b Act No. 26 Year 2000, it is sufficient to refer to the result of
examination and proof of the same indictment elements in the above
Primary-first indictment, where the elements in Article 42 verse (1) a, b
Act No. 26 Year 2000 is not fulfilled, therefore the Primary-second
indictment must be claimed not proven legally and convincingly, and the
Defendant Col. Inf. Yayat Sudrajat must be claimed free from the
Primary-second indictment;
Considering, that because Article 42 verse (1) a, b Act No. 26 year 2000 as
part of the second-primary indictment is not proven, then the Court agree
that Article 40 Act no 26 year 2000 about provisions of crime need not be
examined further;-
Considering, that because the Primary-second indictment is not proven, then
the Court examine and consider the Subsidiary-first indictment as follows:
Indictment ""Subsidiary-first":
Considering, that the Subsidiary-first indictment relates to Article 7
letter b, jis Article 9 letter a, Article 37, Article 41 Act No. 26 year
2000 about Human Rights Court, examined as follows:
Considering, that when the articles in the Subsidiary-first indictment are
observed, the implementation of Article 7 letter b and Article 9 letter a is
the same with the Primary-first indictment, therefore to examine and prove
those articles, it is sufficient to refer to the result of examination on
the same articles;
Considering, that the complete statement of Article 41 Act 26 Year 2000 is
as follows:
"Attempt, evil conspiracy or assistance to do violation as defined in
Article 8 or Article 9 shall be punished with the same punishment with the
provisions as defined in article 36, article 37, article 38, article 39, and
Article 40".
Considering, that the Articles above consist of the following elements:
3. Element "attempt, evil conspiracy or assistance";-
4. Element "to do violation as defined in Article 8 or Article 9 Act No. 26
year 2000".
Element ad. 1. "attempt, evil conspiracy or assistance":
Considering, that element ad. 1 above is a definition or qualification for
crime with no independent implementation, which means it must be attached
with provisions of article elements which is an independent article about
crime as in element ad.2, therefore the examination start from examination
of element ad.2 as follows;-
Considering, that the Prosecutor's Subsidiary-first indictment has referred
to Article 7 letter b and Article 9 a Act No. 26 Year 2000;-
Considering, that as the result of examination of Article 7 letter b jo.
Article 9 letter a Act No. 26 Year 2000 in Primary-first, the Court agree
that crime has happened under the jurisdiction of the Human Rights Court in
the form of "killing" or gross violation of human rights in the form of
crime of murder has been done by Besi Merah Putih group who is part of Pro
Integration group;-
Considering, that the result of examination on the Primary-first indictment
during Article 7 letter b jo. Article 9 letter a, when related to elements
of the articles.
Considering, that the result of examination on the Primary-first indictment
during Article 7 letter b jo. Article 9 letter a, when related to elements
of articles in the Subsidiary-first indictment on ad.2, according to the
Court is in line and shall be taken as result of examination of the
Subsidiary-first indictment on ad.2, i.e. element "do violation as defined
in Article 8 or Article 9 Act No. 26 year 2000";-
Considering, that based on the reference to the result of examination on the
Primary-first indictment, the Court agree that element ad. 2 "do violation
as defined in Article 8 or Article 9 Act No. 26 year 2000, is fulfilled;-
Considering, that element ad.1 Article 41 Act No. 26 year 2000 has different
alternatives, meaning that it is sufficient to prove one of the
qualifications and the remaining ones need not be examined further;-
Considering, that the first alternative as sub element ad.1. "attempt" is
examined as follows:
Considering, that until now no provision in the Act provide a certain
definition on the meaning of trial in Article 41;-
Considering, that the Court refers to what is stated in Article 53 Criminal
Code which could be considered as guideline for this examination;-
That Article 53 verse (1) Criminal Code state that attempt to commit a crime
could be subjected for punishment, if the intention of the perpetrator is
real by beginning the action and the action was not accomplished because of
other factors aside from the perpetrator's will;-
That Article 53 provides parameters where the action or crime had begun, but
never accomplished, the incompletion of the action is not due to the
perpetrator's will, but caused by other factors apart from him/herself or by
another person;-
That it is revealed from the result of examination on element ad.2. Article
41 Act No. 26 Year 2000, crime has happened under the jurisdiction of the
Human Rights court or gross violation of human rights i.e. crime against
humanity in the form of murder which is an accomplished crime, according to
the Court this clearly does not fulfill the parameter of "attempt" was
stated in Article 53 Criminal Code;-
Considering, that based on the explanation above, the Court agree that sub
element ad.1 "attempt" is not fulfilled;-
Considering, that the second alternative of sub element ad.2. "evil
conspiracy" is examined as follows:
That the Explanation of Article 41 Act No. 26 year 2000 stated that the
definition of "evil conspiracy" is when 2 (two) people or more agree to do
gross violation of human rights";-
That actually the meaning of "evil conspiracy" is known by the term "sammenspanning"
i.e. act of consensus to conduct crime;-
That the crime should be done by at least 2 (two) people or more;-
That all conversations or negotiations or meetings that are not to execute
the crime could not be included as evil conspiracy;
That no witness explained or no evidence showed that the Defendant Yayat
Sudrajat had a conversation with Besi Merah Putih group in a certain time or
place to do gross violation of human rights or crime against humanity as has
been proven to be action of murder;-
That according to facts in trial on number 13 and 14 , it was revealed that
the Defendant Yayat Sudrajat was present in the meeting with local leaders (Muspida)
in order to make peace and find solution to bring the candidate suspect
Jacinto who was in Pastor Rafael's residence;
That the Defendant's action was not to conduct crime, instead it was to
uphold the law;-
That the Defendant never acquainted with Besi Merah Putih group, and just
heard the name Manuel Sousa after being present in his trial;-
Considering, that based on the explanation above, the Court agree that the
second alternative of element ad.1 "evil conspiracy" is not fulfilled.
Considering, that the third alternative of element ad.1 "assistance" is
explained as follows:
Considering, that the definition of "assistance" is not given in any
explanation in Act No. 26 Year 2000, therefore it is needed to refer to the
definition of "assisting" regulated in Criminal Law Article 56 Criminal Code
as follows: "Punished as a person who assist in conducting crime:
1e. those who deliberately help conduct that crime;
2e. those who deliberately give opportunity, effort or information to
conduct that crime"
Considering, that the elements above are examined as follows:
Element ad.1. "deliberately help conduct that crime"
Considering, that the definition of those in the element of that article is
the Defendant Col. Inf. Yayat Sudrajat;
Considering, that for examination of element "deliberately", it is
sufficient for the Court to refer to result of examination on the
Primary-first indictment, therefore element "deliberately" is considered
fulfilled;
Considering, that element "assisting" in conducting crime, in this event has
to be in the form of a person or the Defendant being involved in conducting
the action, but does not perform all elements of crime as the perpetrator
does;
Considering, that a person could be claimed guilty in "helping to conduct"
or medeplichtig, if he/she deliberately gives assistance at the time or
before, meaning not after the crime is conducted.
Considering, that element "deliberately" is fulfilled in the Primary-first
indictment above and only valid for members of Besi Merah Putih group led by
Manuel Sousa in conducting crime against humanity in the form of murder;-
Considering, that therefore element deliberate need to be further examined
and meant for the Defendant as follows:
That in referring to the parameter of the definition of "deliberately" in
the Primary-first indictment, then a person is said to be deliberate if that
person with complete awareness will conduct crime and after knowing the
result that will definitely or probably happen, that person never restrain
his/her purpose and intention, instead continue to conduct it;-
That the event of riot that happened in Pastor Rafael's residence in Church
of Liquisa area, is an event that the Defendant never knew or predicted
before, furthermore the Defendant never exactly knew the cause of riot nor
the purpose of Besi Merah Putih group who conducted crime against humanity;-
That according to facts revealed in court, the riot pacify and dissolve
after aid came from TNI Kodim and the Defendant separated the conflicting
parties and help injured people and evacuate citizens to Kodim headquarters
and Bupati Liquisa's official residence;-
Considering, that based on the explanation above, the Court agree that
element ad.1. "deliberately help to conduct crime" is not fulfilled;
Considering, that furthermore element ad.2. "deliberately give opportunity,
effort or information to conduct that crime"
Considering, that the definition of those in that article is aimed at the
Defendant as a person who conducted "assistance" in the form or mechanism of
deliberately giving opportunity, effort or information to conduct crime on
Article 56 verse (2e) and could be interpreted as the material perpetrator
having the initiative to ask for opportunity or effort to the person who
assisted in conducting the crime;-
That during the trial, no witness explained nor any evidence show that the
perpetrator, in this case Besi Merah Putih group, has went to meet the
Defendant or conducted conversation with him with the purpose of asking for
opportunity, effort or information in any form in order to conduct the
attack against Jacinto and his friends and the Pro Independence people
inside Pastor Rafael's residence in Church of Liquisa area;
That according to the facts in trial the Defendant never knew Besi Merah
Putih group nor the person named Manuel Sousa;-
That the Defendant's action of trying to help separate the conflicting
parties and help a small child covered with blood is not an assistance to
conduct crime or violation, instead it is an action that upholds humanity;
That Witness Dionisius Bere, Witness Edi Sutrisno and Witness Mujiono all
explained that the Defendant's clothes were covered with blood for carrying
a child that was a victim of the riot;
Considering, that based on the examination above the Court agree that the
Defendant's series of action do not fulfill elements of giving opportunity,
effort or information to conduct crime against humanity in the form of
murder;-
Considering, that what the Prosecutor stated in his legal indictment as
action of omission or assistance to conduct crime against humanity is
contradictive to the fact revealed in court, therefore the Court agree that
element ad.2 "giving opportunity, effort or information to conduct crime" is
not fulfilled:
Considering, that because the result of examination on elements in Article
41 is not fulfilled on the Defendant Yayat Sudrajat, then the implementation
of Article 37 which is a crime provision need not be examined further, the
Subsidiary-first indictment is claimed not proven legally and convincingly,
and further The Defendant Col. Inf. Yayat Sudrajat must be free from the
Subsidiary-first indictment;
Indictment "Subsidiary-Second":
Considering, that next the Court would examine and prove the Prosecutor's
last indictment on the Subsidiary-second part, which refer to Article 7
letter b, jis Article 9 letter h, Article 40, Article 41 Act No.26 Year 2000
about Human Rights Court, examined and considered as follows:
Considering, that because the Prosecutor's Subsidiary-second indictment
implement the same articles, then in examining and proving that indictment,
it is sufficient for the Court to refer and take over the result of
examination on the same articles in the indictments that have been examined
above;
That to examine Article 7 letter b jo. Article 9 letter h, it is sufficient
to refer and take over the result of examination on the Primary-second
indictment where the elements are not fulfilled;
That to examine Article 41, it is sufficient to refer and take over the
result of examination on the Subsidiary-second indictment where the elements
are not fulfilled;
That because the elements of the articles in the main indictment are not
fulfilled, the Article 40, which is a provision for crime need not be
examined further, and the Subsidiary-second indictment is claimed not proven
legally and convincingly, and further The Defendant Col. Inf. Yayat Sudrajat
is ruled to be free from the Subsidiary-second indictment.
Considering, that because all the Prosecutor's indictment is claimed not
proven legally and convincingly, then The Defendant Col. Inf. Yayat Sudrajat
must be claimed free from all indictments as written on the verdict below;
Considering, that the existence of evidence shown in court in the form of
photo-copy of letters which original versions were never shown, could not
support the proof of the Prosecutor's indictment. Therefore the Court agree
that for the totality and completion of one bundle of case file, then that
document evidence should stay as an attachment in the case file, and the
Prosecutor's request to return that evidence to the General Attorney of
Republic of Indonesia is not reasonable;
Considering, that evidence in the form of 2 (two) units of hand grenades
made in Korea, according to the Court is reasonable to be returned to the
Prosecutor as the first party to propose that evidence in this trial;
Considering, that before the verdict, the Court deems it necessary to
declare the followings:
Considering, that based on the result of examination and proof of the Ad Hoc
Prosecutor's indictment, it was revealed that the mention of Pro Integration
group and Pro Independence group emerged in order to examine the existence
of riot among masses or people who gathered in the Church of Liquisa area,
i.e. Pro Independence who gather inside Pastor Rafael's residence inside the
Church gates, while Pro Integration gather outside the church gates.
Considering, that the mention of the groups as written in the Ad Hoc
Prosecutor's indictment, which the Defendant's Team of Lawyers objected or
proposed an exception at, was sufficiently reasonable and clarified the
indictment, therefore the Team of Lawyer's exception on the mention of those
terms are not reasonable and disregarded;
Considering, that the remaining exception proposed by the Team of Lawyers,
according to the Court has been examined sufficiently and considered
carefully in the Preliminary ruling and Final Ruling of this case;
Considering, that information from witnesses, who were not present in court
although have been summoned appropriately and consecutively, were then read
on the Ad Hoc Prosecutor's request, and was revealed to be denied and
rejected by the Defendant in court;
Considering, that according to the regulation, witness' information is legal
evidence when given under oath directly in the trial which was conducted for
that purpose;
Considering, that because the Defendant denied witness' information which
was read out loud, then its legal power as a witness' information is weak
and could not be considered in examining and proving the Ad Hoc Prosecutor's
indictment. This disadvantages the Ad Hoc Prosecutor in proving his
indictment;
Considering, that mistake over indictment of a crime under the jurisdiction
of the Human Rights Court is based on legal and reasonable grounds according
to the decision makers. And not based on mysterious consideration or other
party's prejudice against the Defendant that was never proven in court;
Considering, that to free the Defendant without trial, would definitely make
the victims feel harassed or contradict with the Defendant's sense of
justice.
Considering, that an act of punishment generally without clear evidence of
fault would in itself violate promises that have been uttered and contradict
with the conscience of the wise;
Considering, that religious norms state: "avoid implementation or verdict of
punishment (hudhud) as long as there are unclear matters that make the judge
doubtful";
Considering, that because the Defendant is free from all indictments, then
the cost of this case is burdened to the State, and the Defendant is given
direct rehabilitation by including a statement of rehabilitation in the
verdict below;
Considering, that at the end the Court consider the statements in the
verdict below has been based on sufficient legal grounds, therefore
considered right and just and does not surpass the authority of the Ad Hoc
Human Rights Court;
Pursuant to and considering all legal rules, which are Article 7 letter b,
Article 9 letter a and letter h, Article 37, Article 40, Article 41, Article
42 verse (1) a and b, Act No. 26 year 2000; Article 351 and Article 340
Criminal Code, Article 191 verse (1), Article 194, Article 197 Criminal Code,
Article 14 verse (1) Government Regulation No. 27 Year 1983, and other
related provisions of rules;
RULING
VI. State the Defendant Col. Inf. Yayat Sudrajat is not proven legally and
convincingly guilty in doing crime indicted in the Primary-first,
Primary-second. Subsidiary-first and Subsidiary-second indictments;
VII. Free the Defendant Col. Inf. Yayat Sudrajat from all Primary-first,
Primary-second, Subsidiary-first and Subsidiary-second indictments;
VIII. Recover the Defendant's rights in capacity, position, pride and
dignity.
IX. Burden the cost of case to the State.
X. Claim that evidence in the form of:
A. Documents:
1. Photo copy of TR. Pangab No.: TR/50/1999 date January 21, 1999 about Plan
for Departure or Personnel joining Satgas Tribuana VII, VIII, DESHANDA V, VI
to volatile regions Irian Jaya and East Timor using Navy ships;
2. Photo copy of SKEP Danjen Kopasus No: Skep/92/XII year 1998 date December
8, 1998 about Establishment of Satgas Tribuana VIII for assignment to new
region East Timor;
3. Photo copy of SPRIN Danjen Kopassus No: Sprin/35/1/1999 and No Sprin/37/1/1999,
date January 27, 1999 about departure of Satgas Tribuana VIII to volatile
region East Timor;
4. Photo copy of SPRIN Danrem 164/WD No Sprin/27/II/1999 date February 11,
1999 about Task Implementation of Satgas Tribuana in volatile region East
Timor;
5. Photo copy of Special Report No: R/184/Lapsus/IV/1999 date April 7, 1999
about conflict between Pro Integration mass group and Anti Integration group
in Liquisa region;
still attached in the case file.
B. Explosives:
- 2 (two) unit of hand grenades made in Korea brand Grenade Hand Frag Delay
K 5 Comp. B Lot. E.C. 82 H 6001-001, EC. 85. M 605-03;
returned to the Prosecutor for other cases.
Thus decided in the meeting of the Ad Human Rights Panel of Judges on Friday,
December 27, 2002, with the Panel consisting of Cicut Sutiarso, SH, MH, as
Chair of Judge, Jalaluddin, SH, Abdulrahman, SH, MH, Amiruddin, SH, and Prof.
Dr. Rachmat Syafei, MA, each as Member Judge according to the Resolution of
Chair of Human Rights Court in State Court Central Jakarta No. 11/Pid.Ham/Ad
Hoc/2002/PN.Jkt.Pst, dated July2, 2002. The verdict was claimed in a court
open for public on Monday, December 30, 2002 by the Chair of Judge together
with Member Judges, together with Lindawati Serikit, SH and Yanwitra, SH, MH,
Ida Iskandaria, SH, Substitute Registrar on that Court, and attended by
YUSUF, SH and Z.DJAFRIN, SH, as Ad Hoc Prosecutor and the Defendant assisted
by his Team of Lawyers. |
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