The Prosecutor v. Carlos Soares also known as Carman
| Court |
Special Panels for Serious Crimes (District Court of Dili), East Timor |
| Case number |
09/2002 |
| Decision title |
Judgement |
| Decision date |
8 December 2003 |
| Parties |
- The Public Prosecutor
- Carlos Soares alias Carman
|
| Other names |
|
| Categories |
Human rights violations |
| Keywords |
Murder |
| Links |
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| Other countries involved |
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back to topSummary
From 1975 until 2002, Indonesia illegally occupied East Timor. Throughout this period, a number of pro-independence groups formed in order to fight for Timorese independence and combat the abuses perpetrated by members of the Indonesian armed forces and the pro-autonomy militia groups with whom they allied themselves.
One such pro-independence group was the Forcas Armadas de Libertacao Nacional de Timor Leste (FALINTIL). In September 1999, three members of the group, imcluding Carlos Soares, were travelling under orders to a village when they were joined by a fourth individual. Seemingly randomly and without reason, Soares stabbed the fourth member of the group through the back using his spear. The victim died. The Special Panels for Serious Crimes convicted Soares of premeditated murder contrary to the Indonesian Penal Code. His sentence was reduced to 4 year 6 months’ impirosnment, however, on account of his diminished mental capacity at the time of the act. The Court took into consideration his sense of grief, loneliness and sadness as a result of the deaths of 6 of his relatives one or two days prior to the murder.
back to topProcedural history
On 25 September 2002, the Public Prosecutor indicted the Accused, Carlos Soares, for one count of murder as a domestic crime, contrary to section 8 UNTAET Regulation 2000/15 and Article 340 of the Indonesian Penal Code.
The trial commenced on 6 October 2003.
back to topLegally relevant facts
On 19 September 1999, the Accused and two other persons (all members of the pro-independence group Forcas Armadas de Libertacao Nacional de Timor Leste (FALINTIL) were proceeding under orders to the village of Altura. On theor journey, they were joined by Graciano Mau Mario (p. 2).
The Prosecution alleges that the Accused attacked Mau Mario from behind with his spear, resulting in death (p. 2).
back to topCore legal questions
- What is the mens rea requirement for murder within the meaning of Article 338 of the Indonesian Penal Code?
- In determining sentencing, how is the gravity of the offence appreciated in the case of intentional murder?
- Is diminished responsibility a defence to criminal responsibility?
back to topSpecific legal rules and provisions
- Sections 8 and 10.2 of UNTAET Regulation 2000/15.
- Articles 338 and 340 of the Indonesian Penal Code.
back to topCourt's holding and analysis
The mental element of murder is a dolus impetus, a form of the will characterised by the rapid insurgence of the determination to act, immediately followed by the execution of the deliberation. It is a state of mind in which the will to act, once arisen, is not resisted; the drive which prompts the will is then immediately and violently satisfied only by the execution of the act (p. 6).
In determining sentencing, the Court is required to take into account the gravity of the offence pursuant to Section 10.2 UNTAET Regulation 2000/15. The taking of someone’s life is not subject to variations of intensity; rather, the intensity of the intention to kill can and does vary, from weak dolus eventualis to premeditation (p. 7). In the present instance, the Accused did not demonstrate an intense criminal personality; rather his is one which cannot restrict itself and is unable to place a barrier between contemplation of the act and its execution. In support of this viewpoint, the Court looked to the Accused’s absence of a prior criminal record, his prior role as a respected member of the community and his remorse after the fact (p.7).
The death of many close relatives of the Accused one or two days prior to his stabbing of the victim led the Court to conclude that the Accused’s mental capacity at the time was diminished (pp. 7-8). Although not enough to justify murder, it warrants mitigation at sentencing (p. 8). The Court therefore reduced the usual term of punishment of 6 years 6 months’ imprisonment to 4 years 6 months’ imprisonment (p. 9).
back to topFurther analysis
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