The Prosecutor v. Augusto Asameta Tavares

Court	Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number	02/2001
Decision title	Judgement
Decision date	28 September 2001
Parties	The Public Prosecutor Augusto Asameta Tavares
Categories	Human rights violations
Keywords	Murder
Links	Judgement
Other countries involved	Indonesia

Summary

From 1975 until 2002, Indonesia illegally occupied East Timor. Pro-autonomy militia groups, as well as the Indonesian Armed Forces (TNI) perpetrated a number of abuses against the Timorese civilian population, targeting particularly those individuals who were suspected of being pro-independence supporters.

In August 1999, Augusto Asameta Tavares was a member of the pro-autonomy Halilintar militia group who was ordered to burn down the houses in a village and murder the inhabitants. In particular, he was ordered, along with others, to locate and stab a known pro-independence supporter, Paulino Lopes Amarel. The order was carried out and the victim died. Tavares was convicted for the domestic crime of murder by the Special Panels for Serious Crimes and sentenced to 16 years’ imprisonment. The Panels did not accept the defence of duress, which required that the conduct was the result of a threat of imminent death or serious bodily harm. Although Tavares was forced to join the militia and was bound to follow orders, the Panels concluded that he could have left. Indeed, that he went along with the militia to the village and came armed with a knife demonstrated to the Panel that he shared the aim of furthering the militia’s criminal activity and contributed to the realisation of those aims.

Procedural history

On 1 February 2001, the Public Prosecutor indicted the Accused, Augusto Asameta Tavares, for one count of murder as a domestic crime contrary to section 8 of UNTAET Regulation 2000/15 and Article 340 of the Indonesian Penal Code.

The preliminary hearing commenced on 27 February 2001. The trial commenced on 12 June 2001; closing statements were heard on 15 June 2001.

Related developments

On 24 November 2004, the Court of Appeal reduced Tavares’ sentence to 9 years’ imprisonment.

On 20 May 2005, he was granted a nine-month reduction in his sentence by Presidential Decree.

Legally relevant facts

The Accused was a member of the Haililintar militia operating in Atabai village (para. 23).

On 27 August 1999, the Accused along with other militia members, went to the village of Memo with the intention of burning down the houses and murdering the people there. The Accused, and others, were ordered to find Paulino Lopes Amarel, a suspected independence supporter and member of the pro-independence group Conselho Nacional da Resistencia Timorense (CNRT). Upon locating Amarel, the Accused was ordered to stab the victim, which he proceeded to do (para. 24).

Core legal questions

What are the requirements for the defence of duress?
Can the Accused’s claim that he was following orders be taken into account at sentencing?

Specific legal rules and provisions

Sections 8 and 19.1 of UNTAET Regulation 2000/15.
Article 340 of the Penal Code of Indonesia.

Court's holding and analysis

From the witness testimonies (including that of the Accused) and the autopsy report on the victim, the Court is convinced that the Accused participated in the attack on the victim and caused wounds, along with other members of the militia, which were the cause of death (para. 39).

The Accused alleges that he was under duress at the time of the murder: he was forced to follow orders and feared that if he did not do so, he would be killed (para. 43). The alleged duress can be assessed not only on the day the Accused attacked the victim but also with reference to his whole activity in the militia group. Although the Accused joined the militia group under constraint (he was obliged to join by his chiefs) such constraint does not suffice to exempt him from criminal liability (para. 44). By joining the other militia members in the attack and carrying a knife, the Accused had the deliberate intent to provide sufficient means of accomplishing the purposes of the militia group (para. 46). The Accused had the chance to refuse to share the purposes of the militia group and indeed could have left the group (para. 47). The defence of duress, set out in Section 19.1(d) of UNTAET Regulation 2000/15, is therefore not established (paras. 48-49).

Pursuant to Section 21 of UNTAET Regulation 2000/15, superior orders do not relieve an Accused of criminal responsibility but may be taken into account as mitigation at sentencing (para. 50).

The Accused was sentenced to 16 years’ imprisonment (para. 64).