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(Source picture: Wikipedia)

(Source picture: Wikipedia)

The Prosecutor v. Joao Fernandez

Court Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number 01/2000
Decision title Sentencing Judgement
Decision date 25 January 2001
Parties
  • The Public Prosecutor
  • Joao Fernandez alias Joao Atabae
Categories Human rights violations
Keywords Murder
Links
Other countries involved
  • Indonesia
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Summary

From 1975 until 2002, Indonesia illegally occupied East Timor. This period was characterised by a number of abuses perpetrated against independence supporters by members of the Indonesian Armed Forces and local militia groups.

The Accused, Joao Fernandez, was a member of the pro-autonomy Dadarus Merah militia. In September 1999, he (and others) were armed with samurai swords and received orders from the militia leader that they were to go to the district police station and kill all the males. In carrying out this order, the Accused murdered a known independence supporter by stabbing him twice in the back with his sword. This was done in full view of the victim’s daughters. Fernandez pleaded guilty to the charge of murder and he was sentenced to 12 years’ imprisonment by the Special Panels. Interestingly, although a number of murders were committed that day in the militia attack, the Prosecutor claims that he did not charge the Accused with murder as a crime against humanity (a more serious offense) due to the lack of evidence.

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Procedural history

On 14 November 2000, the Office of the Deputy General Prosecutor for Serious Crimes filed an indictment against the Accused, Joao Fernandez, charging him with murder as a domestic offense, contrary to section 8 of UNTAET Regulation 2000/15 and Article 340 of the Indonesian Penal Code.

On 10 January 2001, the Accused pleaded guilty to the charge during the preliminary hearing. After verifying the validity of the guilty plea, the sentencing hearing was held on 18 January 2001.

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Related developments

The Accused appealed. On 29 July 2001, his final appeal was dismissed by the Court of Appeal. See ‘Court of Appeal Dismisses Final Appeal By Militia Member’, Judicial System Monitoring Programme, 2 July 2001.

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Legally relevant facts

The Accused was a member of the Dadarus Merah militia group (para. 12).

On 8 September 1999, a number of militia members, including the Accused, were ordered to go to the home of the militia leader Monteiro where they were provided with samurai swords (para. 12). They were further ordered to go to the district police station and to kill all the males (para. 13). Inside, the Accused and another militia member were led by the chief of the police station to a room where the victim, Domingos Gonsalves Pereira, the village chief of Ritabou was hiding. The Accused pulled Pereira out of his hiding place and stabbed him in the back wih his sword. Pereira was then stabbed by the victim twice in the chest (para. 13). When the victim triedto get up, the Accused stabbed him for a second time in the back. Pereira died as a result of the wounds he sustained (para. 14). 

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Core legal questions

  • What are the essential elements of murder contrary to Article 340 of the Indonesian Penal Code?
  • What circumstances may be taken into account at sentencing?

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Specific legal rules and provisions

  • Section 8 of UNTAET Regulation 2000/15.
  • Article 340 of the Indonesian Penal Code.

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Court's holding and analysis

The essential elements of murder are deliberate intent, premeditation and the death of the victim. In the present instance, all of the elements are met. The Accused intended the death of the victim because he was a pro-independence supporter, he obtained samurai swords and painted his face black in premeditation, and he stabbed the victim twice in the back until he died (para. 18).

The Court considered as aggravating circumstances the intention of the Accused, along with other militia members, to kill all the males at the police station, as well as the fact that the Accused killed the victim in front of his daughters and thus behaved with particular heinousness (para. 19). In mitigation, the Court took into account the Accused’s cooperation with the judicial investigation, his guilty plea, that he was acting on orders and his young age (21 years) at the time of commission of the offense (para. 20).

The Accused was sentenced to 12 years’ imprisonment (Section V).

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Further analysis

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Instruments cited

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Related cases

  • Special Panels for Serious Crimes (District Court of Dili), East Timor, Court of Appeal, The Prosecutor v. Joao Fernandez, Criminal Appeal No. 2001/02, 29 July 2001.

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Additional materials