The Deputy Prosecutor-General for Serious Crimes v. Francisco Pedro

Court	Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number	1/2001
Decision title	Judgement
Decision date	14 April 2005
Parties	Deputy Prosecutor-General for Serious Crimes Francisco Pedro alias Geger
Other names	Geger
Categories	Crimes against humanity
Keywords	crimes against humanity, Murder, other inhumane acts, torture
Links	Judgement
Other countries involved	Indonesia

Summary

During Indonesia’s illegal occupation of East Timor form 1975 until 2002, the Indonesian Armed Forces and a number of militia groups perpetrated a countrywide campaign of abuse against the Timorese civilian population, targeting particularly those persons suspected of being independence supporters.

The Accused, Francisco Pedro, was a member of the Firmi Merah Putih (FIRMI) militia group. On 15 September 1999, he and other militia members abducted three suspected independence supporters from their homes, bundled them into a taxi and drove them to a dark clearing where they were to be killed. The Accused stabbed two of the victims, who died, whilst a third succeeded in escaping. The Accused on another event also acted as a guard at a FIRMI commander’s home where a number of independence supporters were detained and repeatedly punched, kicked and beaten. For his involvement, the Special Panels for Serious Crimes convicted the Accused of crimes against humanity of murder, attempted murder and other inhumane acts and sentenced him to 8 years’ imprisonment.

Procedural history

On 13 January 2001, the Deputy Prosecutor-General indicted the Accused, Francisco Pedro for two counts of murder and one count of attempted murder contrary to section 340 of the Indonesian Penal Code.

On 4 May 2001, the Court requested the Prosecutor to amend the indictment as it objected to charging the same conduct (stabbing) under two different forms of liability: committing and aiding and abetting. On 10 May 2001, the Prosecutor filed an amended indictment retaining the same charges but introducing a second accused, Apolinario Dos Santos.

On 22 May 2001, considering the defects in the indictment and the Prosecutor’s failure to address them, the Court dismissed the case.

On 31 January 2002, the Prosecution submitted a third indictment against the Accused. On 6 May 2002, the Prosecution submitted a fourth indictment against the Accused and Dos Santos. On 14 December 2004 the Prosecution filed a motion requesting the Court to allow him to withdraw the third and fourth indictment. On 11 February 2005, the Court gave leave to withdraw the requested indictments.

The final indictment was filed by the Prosecutor on 14 December 2004 and charges the Accused with five counts of crimes against humanity: other inhumane acts, torture, murder, murder and attempted murder.

The trial commenced on 31 March 2005. The Accused pleaded guilty to one count of other inhumane acts, one count of murder and one count of attempted murder. The remaining counts were withdrawn by the Prosecution.

Legally relevant facts

In September 1999, the Accused was a member of the Firmih Merah Putih (FIRMI) militia, which was organised and controlled by the Indonesian Armed Forces (TNI). A number of East Timorese civlians and pro-independence supporters had been arrested by the militia in early September and detained at the house of a FIRMI commander where they were repeatedly punched, kicked and beaten with sticks and rifle butts. The Accused had the role of guard for the house, preventing the detainees from escaping (para. 8).

On 15 September 1999, the Accused and other militia members abducted three suspected pro-independence supporters from their homes, bundled them into a taxi and drove them to a dark clearing where they were to be killed. The Accused stabbed one of the victims who died instantly. He then stabbed the second victim who was also stabbed by another militia member and died as a result of the combined wounds. The third victim succeeded in escaping (para. 8).

Core legal questions

When is the crime of attempted murder established?
Does the requirement for the crime against humanity of attempted murder as contained in UNTAET Regulation 2000/15 represent customary international law?
Would a conviction for the crime against humanity of murder and attempted murder, as contained in UNTAET Regulation 2000/15, violate the principle of non-retroactivity considering that the Regulation did not exist at the time of the conduct in question?

Specific legal rules and provisions

Sections 5.1(a),(k) and 14.3(a),(f) of UNTAET Regulation 2000/15.

Court's holding and analysis

The Accused must take a substantial step to commence the execution of the crime, pursuant to section 14.3 (f) of UNTAET Regulation 2000/15 in order to be responsible for the crime of attempted murder. In the present instance, the Accused had the intent to kill the victim and was prevented from doing so only by the escape of the victim – he had already taken him to the intended place of killing (para. 15).

Section 14.3 (f) is consistent with customary international criminal law, which requires a significant step towards the completion of the crime. The Court made this declaration following a single reference to the Commentary to the Rome Statute of the International Criminal Court by Triffterer (para. 15).

In finding that both the crime against humanity of murder and attempted murder represent customary international law, the Court overcame the Defence objection that convictions for such crimes would violate the principle of non-retroactivity of criminal law as UNTAET Regulation 2000/15 which criminalised these offenses did not exist at the time of the conduct. The Court considered that the Regulation only establishes the jurisdiction of the Special Panels; the offenses themselves were already part of customary international criminal law (para. 12).

The Accused was sentenced to 8 years’ imprisonment for the crimes against humanity of murder, attempted murder and other inhumane acts (p. 10).