The Prosecutor v. X

Court	Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number	04-2002
Decision title	Judgement
Decision date	2 December 2002
Parties	The Prosecutor X
Categories	Crimes against humanity, Human rights violations
Keywords	crimes against humanity, extermination, 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 (TNI) and various pro-autonomy militia groups perpetrated a widespread campaign against the civilian population in East Timor in order to repress pro-independence supporters.

The present case was the first before an international or hybrid international/domestic tribunal like the Special Panels for Serious Crimes to indict a minor for their involvement in the perpetration of international crimes. The Accused, X, was 14 years old in 1999 when, as a member of the Sakunar militia group, he killed by machete three young men who had been apprehended by the militia as part of a larger group. The Prosecution had initially charged the Accused with extermination as a crime against humanity, but later amended to murder in violation of the Indonesian Penal Code. The Accused pleaded guilty and was sentenced to 12 months’ imprisonment. Having already served 11 months 21 days in ore-trial detention, the Court ordered the remainder of the sentence to be suspended on the condition that the Accused does not commit any crimes for a period of one year. At sentencing, the youth of the Accused was a decisive mitigating factor as the Panel considered that he was used merely as a tool by those truly responsible.

Procedural history

On 17 May 2002, the Public Prosecutor indicted the Accused, X, for two counts of crimes against humanity: extermination and attempted extermination. In the alternative, the Public Prosecutor also charged the Accused with the crime against humanity of other inhuman acts.

On 25 October 2002, the trial commenced with the preliminary hearing. The Prosecutor filed an amended indictment charging the Accused only with the murder of three men, in violation of Article 338 of the Indonesian Penal Code. The Accused pleaded guilty to the charge.

On 28 October 2002, the Special Panel entered the guilty plea and convicted the Accused of murder. The final decision, including sentencing, was rendered on 2 December 2002.

Legally relevant facts

The Accused was a member of the Sakunar militia group, which operated in the district of Oecussi, East Timor from April to October 1999 (para. 26). On 9 September 1999, a number of villagers from different towns had gathered at Imbate, West Timor with the purpose of registering their identity, as required by the militia. Approximately 75 young men were separated from the crowd, and tied together in pairs by Sakunar militia members, including the Accused (para. 28). At midnight, the men were forced to leave Imbate on foot. Once they had crossed the border into East Timor, the militia members began killing the men either by shooting them or attacking them with amchetes (para. 30). The Accused, using his machete, struck to death three men (para. 31).

Core legal questions

Does the young age of the Accused, in particular his status as a minor at the time of the commission of the offence, warrant mitigation at sentencing?
What aggravating circumstances may be taken into consideration?

Specific legal rules and provisions

Section 45.1 of UNTAET Regulation 2000/15.
Sections 338 and 340 of the Indonesian Penal Code.

Court's holding and analysis

That the Accused was 14 years old at the time of the commission of the offence is to be taken into consideration as a mitigating factor, as he was used as a tool by those most responsible for the campaign of violence that was perpetrated against the pro-independence supporters in East Timor (para. 57).

In addition, the Court also considered that the guilty plea, that the Accused acted upon superior orders and his lack of prior criminal convictions were mitigating circumstances (paras. 58-60).

As aggravating circumstances, the Court considered the cruel and brutal manner in which the crimes were perpetrated and the defenceless nature of the victims (paras. 62-62).

The Accused was sentenced to 12 months’ imprisonment (p. 11). Having already served 11 months and 21 days in pre-trial detention, the Court stated that the remaining time shall not be served unless the Accused commits another offense within one year (p. 12).