The Prosecutor v. Leonardus Kasa

Court	Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number	11/2000
Decision title	Judgement
Decision date	9 May 2001
Parties	The Public Prosecutor Leonardus Kasa
Categories	Human rights violations
Keywords	rape
Links	Judgement
Other countries involved	Indonesia

Summary

The Indonesian occupation of East Timor from 1975 until 2002 gave rise to a number of attacks on the Timorese civilian population, particularly against those suspected of being independence supporters.

The Accused, Leonardus Kasa, was a member of the pro-autonomy Laksaur militia group. He was brought before the Special Panels for Serious Crimes for having allegedly raped an East Timorese woman. He contended that the relationship was not based on coercion and in any event the Special Panels could not hear his case as it fell outside their jurisdiction, the alleged rape having been committed in West Timor. The Special Panels agreed, finding that under the constitutive instruments of the Panels and the applicable law, there was no jurisdiction to try the case. It would have to be dealt with by an Indonesian court.

Procedural history

On 12 December 2000, the Public Prosecutor indicted the Accused, Leonardus Kasa, for rape as a domestic offence contrary to Section 9 of UNTAET Regulation 2000/14 and Article 285 of the Indonesian Penal Code.

The preliminary hearing was held on 14 February 2001 at which time the defence entered a statement to the effect that the relationship between the Accused and the victim was consensual and he had only admitted the alleged crime after maltreatment from the victim’s husband. The defence alleged that the Special Panels has no jurisdiction to try the crime, first because it should be properly recharacterised as adultery (which falls outside the competence of the Panels), and second, because the alleged offense occurred in West Timor.

Related developments

The Prosecution filed an appeal on 11 October 2001 but it was withdrawn on 5 April 2004.

Legally relevant facts

On or about 10 September 1999, the Prosecution alleges that the Accused forced an East Timorese lady to have sex with him outside of marriage. The alleged event occured in the village of Betun, in West Timor (Section D).

Core legal questions

Can the Special Panels exercise their jurisdiction in favour of trying the Accused where the alleged offence occurred outside the territory of East Timor?

Specific legal rules and provisions

Section 5 of UNTAET Regulation 2000/11.
Section 9 of UNTAET Regulation 2000/15.
Article 258 of the Indonesian Penal Code.

Court's holding and analysis

Section 5 of UNTAET Regulation 2000/11 provides that the courts in East Timor shall have jurisdiction in respect of crimes committed in East Timor prior to 25 October 1999. There are two exceptions: the first provides for universal jurisdiction for the crimes of genocide, war crimes, crimes against humanity and torture, and the second in the event that the crime was committed on a vessel or aircraft registered in East Timor. Since the offense of rape does not fall within either of these exceptions and was committed outside of East Timor, the Special Panel considers that the Eats Timorese courts and the Special Panels themselves do not have jurisdiction to try the accused (Section E).