The Prosecutor v. Francisco Perreira

Court	Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number	34/2003
Decision title	Judgement
Decision date	27 April 2005
Parties	The Prosecutor Francisco Perreira alias Siku Gagu
Categories	Crimes against humanity
Keywords	crimes against humanity, Murder, persecution, torture
Links	Judgement
Other countries involved	Indonesia

Summary

During Indonesia’s occupation of East Timor from 1975 until 2002, the Indonesian armed forces and numerous militia groups in support of Indonesian autonomy perpetrated widespread abuses against the Timorese civilian population, targeting especially those suspected of being pro-independence supporters.

The Accused, Francisco Perreira, was a member of the Mahidi militia group who operated a detention camp where pro-independence supporters were routinely detained, beaten, and subject to harsh living conditions including lack of food, water and sleep. Perreira was convicted by the Special Panels for Serious Crimes for the persecution of four detainees at the camp, whom he had tortured or inflicted severe physical suffering upon. He was further convicted of the attempted murder of another detainee who had succeeded in escaping. Perreira had pursued the victim with other militia members to a riverbank where, acting upon orders to kill, he stabbed the victim. However, his conduct was not the cause of death as the victim was also shot by another militia member. As a result, at sentencing, Perreira was only sentenced to 3 years’ imprisonment for both counts of crimes against humanity.

Procedural history

On 14 November 2003, the Prosecutor indicted Francisco Perreira for two counts of crimes against humanity: murder and persecution.

The trial commenced on 6 September 2004.

Related developments

On 31 August 2005, the Court of Appeal increased the charge to murder the sentence to 7 years’ imprisonment.

Legally relevant facts

The Accused was a member of the Mahidi militia group in support of Indonesian autonomy (p.1).

The victim, Alvaro Tilman, was a member of the pro-independence group, Forcas Armadas de Libertacao Nacional de Timor Leste (FALINTIL). He was arrested and detained by members of the Mahidi militia in April 1999 (p. 10). Upon attempting to escape, the Accused is alleged to have found him hiding behind some shrubs and attacked him with his sword (pp. 10-11).

The victim nonetheless succeeded in escaping and was chased by members of the Mahidi militia, including the Accused. The pursuit ended at some riverbanks where the victim was shot by another militia member (p. 11). The Accused, on orders, proceeded to jump into the river after the victim and attack him with his sword for a second time (p. 12). The autopsy confirmed that the victim died as a result of the gunshot wound (p. 13).

The Accused is also alleged to have participated in the detention, torture and infliction of severe physical pain on four additional victims (p.24), all pro-independence supporters (p. 25). These included scarcity of food and water, random beatings, and sleep deprivation (p. 26).

Core legal questions

Can the existence of a joint criminal enterprise be deduced from orders given to the militia guarding the detention camp to kill prisoners who attempt to escape?
Is the contextual element of crimes against humanity satisfied in the event of the present murder, an apparently random and isolated act?

Specific legal rules and provisions

Sections 5.1 (a) and (h) of UNTAET Regulation 2000/15.

Court's holding and analysis

Whilst the Court considers that such orders may have existed for militia members in general and repeated for those guarding the detention camp in question, the existence of orders does not necessarily equate to the existence of a joint criminal enterprise (JCE). JCE requires at a minimum coordination amongst those who participate in the action, a shared will (p. 20). An order by a militia leader to his subordinates is not evidence of coordination but of hierarchy and cannot by itself be a source of joint criminal responsibility (p. 21).

The murder of the victim falls within the definition of crime against humanity. Although the death occurred at random and, in a sense, is isolated, it may still be connected to the wider scenario of detaining pro-independence supporters. The act is part of the widespread attack against such supporters in the sense that it is a foreseeable development of the system of repression established by the militia and targeting the general population (p. 21). The acts of the Accused are therefore part of this scheme of repression (p. 22).

The Accused was convicted of attempted murder and persecution as crimes against humanity. He was sentenced to 3 years’ imprisonment (p. 30).