The Prosecutor v. Agustinho da Costa

Court	Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number	07/2000
Decision title	Judgement
Decision date	11 October 2001
Parties	The Public Prosecutor Agustinho Da Costa
Categories	Human rights violations
Keywords	Murder
Links	Judgement
Other countries involved	Indonesia

Summary

Indonesia illegally occupied East Timor from 1975 until 2002. During that time, members of the Indonesian Armed Forces and pro-autonomy militia groups perpetrated a number of attacks against the civilian population, particularly against those believed to be independence supporters. These crimes intensified in the wake of the referendum conducted in August 1999 in which the Timorese people voted overwhelmingly in favour of independence.

It was in the wake of this referendum that members of the Team Pancasila Atsabe militia, including the Accused Agustinho Da Costa, were ordered to locate and kill a known independence supporter who was working for the UN Mission in East Timor (UNAMET). Their initial search being unsuccessful, they located the victim on the following day and proceeded to beat him with rocks and fire multiple shots until he died. His daughter witnesses the entire incident.

The Special Panels for Serious Crimes convicted Da Costa for his role in the murder and sentenced him to 15 years’ imprisonment. The Panel was not persuaded by Da Costa’s line of defence that held that he was acting under duress, as he could have resisted joining the militia and could have escaped up until the moment of the attack.

Procedural history

On 30 November 2000, the Public Prosecutor indicted the Accused, Agustinho Da Costa, for murder as a domestic offence contrary to Article 340 of the Indonesian Penal Code and Section 8 of UNTAET Regulation 2000/15. The preliminary hearing commenced on 29 January 2001 and concluded on 9 May 2001. The Accused did not enter a guilty plea.

The trial commenced on 21 June 2001 and concluded on 28 June 2001. In the course of the trial, the Accused chose to make a statement to the effect that there was no plan to kill the victim and he acted upon the orders of his superior of whom he was afraid.

Related developments

On 20 May 2005, Da Costa was granted a one-year reduction in his sentence by Presidential Decree.

Legally relevant facts

The Accused was a member of the Team Pancasila Atsabe militia (para.34).

On 30 August 1999, members of the Team Pancasila militia, including the Accused, carried out an order of commanders in the Indonesian Armed Forces (TNI). They chased the victim, Manuel de Oliveira, and discovered him in his hiding place on 31 August 1999. Oliveira was arrested, tied up, beaten and killed by the militia, including the Accused who shot the victim (paras. 36, 49).

The victim was a known pro-independence supporter (para. 58).

Core legal questions

What are the elements of duress?
Are superior orders a defence excluding criminal responsibility?
What is the definition of premeditation?

Specific legal rules and provisions

Sections 8, 14.3(a),(c), 19.1(d) and 21 of UNTAET Regulation 2000/15.
Article 340 of the Indonesian Penal Code.

Court's holding and analysis

The Accused alleges that he acted under duress – he was ordered to kill the victim by his superior whom he feared. The Special Panels held that the alleged duress can be assessed with reference to the Accused’s activity in the militia group as a whole, and not simply limited to his conduct on that day (para. 64). Considering this, however, the Court concluded that the Accused could have refused to join the militia, and could have escaped up until the moment of the attack (para. 64). The Accused chose to be in line with the militia groups and as such the defence of duress is not established (para. 69).

That the Accused was acting under orders does not relieve him of criminal responsibility; it may be considered as a mitigating factor in sentencing pursuant to Section 21 of UNTAET Regulation 2000/15.

Premeditation is the time between when the decision arose to search for the victim and when the shots were fired. The Accused knew and could calmly think about how the murder was to be committed as the victim had been identified by the militia some time prior to the event and he had been searched for unsuccessfully the day previous to his death (para. 73).

The Accused was convicted of murder and sentenced to 15 years’ imprisonment (para. 89).