The Prosecutor v. Lino de Carvalho

Court	Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number	10/2001
Decision title	Judgement
Decision date	18 March 2004
Parties	The Public Prosecutor Lino de Carvalho
Categories	Crimes against humanity
Keywords	crimes against humanity, Murder, other inhumane acts
Links	Judgement
Other countries involved	Indonesia

Summary

During Indonesia’s illegal occupation of East Timor from 1975 until 2002, the Indonesian Armed Forces and over 20 local militia groups operated perpetrated widespread and systematic attacks against the civilian population, particularly targeting those individuals who were known to be or suspected of being independence supporters.

Saka Loromonu was one such pro-autonomy militia group who, in September 1999, abducted a known independence supporter from the home in which he was staying with his relatives. He was taken to militia headquarters where he was severely beaten, including with a machete. On the orders of the Deputy Commander of the militia, the Accused, Lino de Carvalho, and other militia members took the victim to a beach where he was repeatedly stabbed. His head was decapitated and brought back to the Commander as evidence of the execution. His body was left by the side of the road to serve as a warning to support Indonesian autonomy.

The Special Panels convicted Carvalho of murder as a crime against humanity and sentenced him to 7 years’ imprisonment.

Procedural history

On 25 April 2001, the Public Prosecutor indicted the Accused, Lino de Carvalho, and two other individuals, Riben Monteiro Goncalves and Ruben Pierre Tavares. The Accused was charged with one count of murder and three counts of maltreatment as domestic offenses contrary to the Indonesian Penal Code.

On 18 May 2001, the Prosecutor filed two amended indictments effectively severing the case of the Accused from that of Goncalves and Tavares. In Amended Indictment 1, the Accused was charged with crimes against humanity: two counts of inhumane acts and one count of murder (see also here).

The trial commenced on 19 February 2002.

On 16 February 2004, the Accused pleaded guilty to count three of the charges against him, that of murder as a crime against humanity. On 17 February 2004, the Public Prosecutor withdrew the remaining charges against the Accused.

Related developments

On 20 may 2005, the Accused was granted a one-year reduction in his sentence by Presidential Decree.

Legally relevant facts

From April until September 1999, the Accused was in charge of the Saka Loromonu pro-autonomy militia group (para. 46).

In September 1999, six Saka Loromonu members abducted Sabino Pereira from his residence (para. 48). Pereira was an independence supporter and a member of a clandestine youth group that conducted pro-independence activities (para. 51). He was taken by truck to militia headquarters, located in the home of Tavares, the Deputy Commander of the militia and initially the co-Accused (para. 52). There Pereira was severely beaten, including with a machete (para. 53). Following the beating, the Accused and other militia members were ordered to kill Pereira (para. 55). He was driven to Palaka Beach in a truck by the Accused and other militia members (para. 56). Pereira was stabbed by a number of persons (para. 57). The Accused had initially not participated in the attack until he was ordered to do so to demonstrate his pro-autonomy tendencies (para. 58). Pereira’s head was severed and brought back to Tavares to prove the execution had occurred (para. 59). His body was dumped on the side of the road to act as warning (para. 60).

Core legal questions

Absent a definition of murder as a crime against humanity in Section 5.1(a) of UNTAET Regulation 2000/15, what are the elements of the offense?

Specific legal rules and provisions

Section 5.1(a) of UNTAET Regulation 2000/15.

Court's holding and analysis

The Special Panel found cause to follow its earlier case law in The Prosecutor v. Joni Marques to define the elements of murder as a crime against humanity as follows:

The victim is dead
The death of the victim is the result of the perpetrator’s act
The act must be a substantial cause of the death of the victim.
At the time of the killing, the accused must have meant to cause the death of the victim or was aware that it would occur in the ordinary course of events.

There is no requirement of premeditation as a mental element, contrary to the domestic offense of murder as criminalised in Section 340 of the Indonesian Penal Code (para. 62).

The Special Panels convicted the Accused (para. 64) and sentenced the Accused to 7 years’ imprisonment (p. 15).