The Prosecutor v. Joao Franca da Silva alias Johni Franca

Court	Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number	04a/2001
Decision title	Judgement
Decision date	5 December 2002
Parties	The Public Prosecutor Joao Franca da Silva alias Johni Franca
Other names	Lolotoe Case
Categories	Crimes against humanity
Keywords	crimes against humanity, deprivation of liberty, other inhumane acts, persecution, torture
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, Joao Franca da Silva, was the Commander of the Kaer Metin Merah Putih militia (KMP) in Lolotoe. In May 1999, he participated in a number of attacks directed at independence supporters including the detention of numerous individuals at the KORAMIL military centre who were kept in small rooms without proper sanitation, and many of whom were beaten and interrogated about their connections. He also ordered the beating of a number of independence supporters, and in one vicious incident, he forced the victim to eat his own ear.

The Lolotoe case was one of the major trials before the Special Panels for Serious Crimes. Da Silva was sentenced to 5 years’ imprisonment after pleading guilty to four counts of imprisonment or other severe deprivation of liberty as a crime against humanity and one count of torture as a crime against humanity. The remaining charges against him (persecution, other inhumane acts) were withdrawn by the Prosecutor.

Procedural history

On 6 February 2001, the Public Prosecutor indicted the Accused, Joao Franca da Silva and four other individuals for 27 counts of crimes against humanity. The Accused was charged with five counts: unlawful deprivation of physical liberty as a crime against humanity, unlawful deprivation of physical liberty, torture as a crime against humanity, maltreatment and persecution as a crime against humanity.

On 6 April 2001, the Special Panel decided to sever the charges against two of the co-Accused.

On 25 May 2001, the Public Prosecutor filed an amended indictment against the Accused and two other individuals. The Accused was charged with four counts of imprisonment or other severe deprivation of liberty as a crime against humanity, one count of torture as a crime against humanity, two counts of other inhumane acts as a crime against humanity and one count of persecution as a crime against humanity.

The trial commenced on 5 March 2002. On 27 May 2002, the Accused pleaded guilty to the four counts of imprisonment and the count of torture. The Public Prosecutor withdrew the remaining charges. The case of the Accused was thus severed from that of his co-Accused and renumbered 4a/2001.

Legally relevant facts

The Accused was the Commander of the Kaer Metin Merah Putih militia (KMP) in Lolotoe, with authority and control over members of the militia (para. 46).

In May 1999, the Accused together with other members of the KMP, armed with machetes, swords and knives, went to the home of Bendito da Costa in search for his son, Mario, a known pro-independence supporter. Finding Mario to be absent, the Accused beat da Costa, tied him to a pole in his home and left him there. On the following day, the Accused and the KMP returned and took da Costa, his wife and two children to the KORAMIL, a military command centre, where they were detained until July 1999 (para. 111).

Again in May, the Accused participated with other KMP members in the severe beating of Adao Manuel who was interrogated about his involvement with the pro-independence group Forcas Armadas de Libertacao Nacional de Timor Leste (FALINTIL). Manuel was detained in the KORAMIL until July 1999 (para. 112).

Again in May, the Accused led aproximately 100 KMP militia members to the hideout of Mario Goncalves, a known independence supporter. Goncalves was beaten on the orders of the Accused, who attacked him personally with a machete, cut off his right ear and forced Goncalves to eat it. Goncalves was then detained until July 1999 (para. 113).

Again in May, the Accused ordered the beating and detention of Jose Gouvela Leie (para. 114).

Again in May, the Accused personally interrogated Aurea Cardoso, an indepence supporter whose husband the KMP were searching for (para. 115) and Herminio de Graca, a member of the pro-independence group Conselho Nacional da Resistencia Timorense (CNRT) (para. 118). Cardoso, her two children and Graca were all detained until July 1999 (paras. 115, 118).

Victims A, B and C were detained for one month at the Accused’s home and forced to cook for him (para. 120).

Core legal questions

Would a conviction for the crimes against humanity with which the Accused is charged, and which result from UNTAET Regulation 2000/15, violate the principle of non-retroactivity considering that the crimes occurred prior to the promulgation of the Regulation in question?
What are the elements of superior responsibility?

Specific legal rules and provisions

Sections 5.1(e),(f) and 16 of UNTAET Regulation 2000/15.

Court's holding and analysis

The principle nullum crimen sine lege prohibits the retroactive application of criminal laws (para. 59). It is contained in Section 12 of UNTAET Regulation 2000/15 and provides that the act must have been criminalised under international law or the domestic law applicable in East Timor at the time it takes place. It would not suffice for the act to be merely prohibited by international law – it must also give rise to individual criminal responsibility (para. 61). After a review of the Statutes of other international tribunals and case law, the Panel concluded that severe deprivation of physical liberty and torture were crimes under customary international law when the acts were committed. Convictions for such crimes would not therefore violate the principle of non-retroactivity (paras. 90 - 93).

Superior criminal responsibility is the responsibility of a superior for the acts of his subordinates if the superior knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take necessary steps or reasonable measures to prevent such acts or to punish the perpetrators thereof. The Accused instigated acts that were subsequently committed by his subordinates and is therefore responsible pursuant to Section 16 of UNTAET Regulation 2000/15 (para. 125).

The Accused was convicted of the crimes against humanity of imprisonment or other severe deprivation of physical liberty and torture (para. 139). He was sentenced to 5 years’ imprisonment (para. 159).

Further analysis

E. Stanley, Torture, Truth and Justice: The Case of Timor-Leste, Routledge 2009, see p. 161;
I. Cristalis, C. Scott & X. Andrade, 'Independent Women: The Story of Women's Activism in East Timor', LOndon: CIIR 2005, see p. 97.

Instruments cited

United Nations Transitional Administration in East Timor Regulation No. 2000/15, UN Doc. UNTAET/REG/2000/15, 6 June 2000.

Related cases

Special Panels for Serious Crimes (District Court of Dili), Timor-Leste, The Prosecutor v. Sabino Gouveia Leite, Case No. 04b/2001, Judgement, 7 December 2002.
Special Panels for Serious Crimes (District Court of Dili), Timor-Leste, The Prosecutor v. Jose Cardoso, Case No. 04c/2001, Judgement, 5 April 2003.