The Prosecutor v. Anastacio Martins and Domingos Goncalves

Court	Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number	11/2001
Decision title	Judgement
Decision date	13 November 2003
Parties	The Public Prosecutor Anastacio Martins Domingos Goncalves alias Domingos Limen Sanak
Categories	Crimes against humanity
Keywords	crimes against humanity, deportation, Murder
Links	Judgement
Other countries involved	Indonesia

Summary

Indonesia illegally occupied East Timor from 1975 until 2002. During that time, the Indonesian Armed Forces (TNI) and some 24 local militia groups in favour of Indonesian autonomy targeted the civilian population, particularly those suspected of being independence supporters. In September 1999, a referendum was held in which the Timorese people voted overwhelmingly in favour of independence. As a result of this vote, members of the Besih Merah Putih (BMP) militia group launched a renewed campaign against independence supporters. In the course of this campaign, a number of villages were attacked, houses burnt down and individuals murdered or deported to West Timor.

Anastacio Martins and Domingos Goncalves were BMP members who were convicted by the Special Panels for Serious Crimes for their role in these attacks. Martins was convicted for two counts of murder as a crime against humanity and sentenced to 11 years 6 months’ imprisonment after pleading guilty; Goncalves was convicted for one count of murder and one count of deportation as crimes against humanity and received a 15-year sentence. The judgment is particularly noteworthy because the Special Panels disagreed with an earlier Court of Appeal decision and held that the applicable law in 1999 and therefore the law to be applied by the Panels was Indonesian, and not Portuguese.

Procedural history

On 2 May 2001, the Public Prosecutor indicted the Accused, Anastacio Martins and Domingos Goncalves, for crimes against humanity. Martins was charged with three counts of murder and one count of deportation or forcible transfer of population; Goncalves was charged with one count of murder and one count of deportation or forcible transfer of population. The trial commenced on 1 September 2003.

Martins pleaded guilty to two counts of murder; the remaining two charges were withdrawn by the Prosecutor. The trials were severed and Goncalves’ trial continued. The cases were joined again for closing statements.

Related developments

On 14 September 2004, Goncalves’ appeal was rejected by the Court of Appeal. On 20 May 2005, Martins received a one-year reduction in his sentence by Presidential Decree.

Legally relevant facts

On 2 September 1999, a meeting was held in Bazartele in which pro-autonomy militia groups gathered (including both Accused) and directions were given to the effect that members of the pro-independence group Forcas Armadas de Libertacao Nacional de Timor Leste (FALINTIL) should be attacked and their villages destroyed (p. 12).

Both Martins and Goncalves were members of the Besih Merah Putih (BMP) militia group (paras. 14, 21 of the indictment).

In the execution of this order, Metagou Village was attacked on 4 September 1999. Martins, Goncalves and other BMP militia members had rounded up a number of independence supporters. These persons were repeatedly beaten by the Accused with pieces of wood (paras. 28-29, Indictment). One of the victims was shot by Goncalves, another by Martins. A third was killed by other militia members (paras. 31, 33 of the indictment).

Muka Bera village was attacked on 5 September 1999. The BMP, including the Accused, burned down over 80 homes. Villagers were then forced to go to Bazartete where they were detained and deported to West Timor (paras. 34-35 of the indictment). Goncalves, Martins and other militia members returned to the village where three known independence supporters were shot (paras. 36-41 of the indictment).

Legumea Village was attacked around 8 September 1999. The Accused, accompanied by members of the Indonesian Armed Forces (TNI) forced villagers into trucks and deported them to West Timor (para. 45 of the iIndictment). One of the villagers was later killed by Martins in West Timor (para. 46, indictment).

Core legal questions

How is Section 3 of UNTAET Regulation 1999/01 to be interpreted so as to determine the subsidiary applicable law in East Timor?
Can UNTAET Regulation 2000/15 apply to events that occurred in 1999 despite the principle of non-retroactivity?

Specific legal rules and provisions

Section 3 of UNTAET Regulation 1999/01.
Section 15 of UNTAET Regulation 2000/15.

Court's holding and analysis

The Court of Appeal in the case of the Prosecutor v. Armando Dos Santos, in a decision of 15 July 2003, held that the subsidiary applicable law was Portuguese. This conclusion was based upon an erroneous interpretation of the Portuguese translation of UNTAET Regulation 1999/01. The Portuguese version refers to the Special Panels applying the applicable law in East Timor before 25 October 1999, whilst the English version refers to the laws which were actually applied in East Timor prior to that date. The Regulation itself provides that in case of divergence, the English text shall prevail. Thus the Special Panels concluded that the applicable law before the Panels was the laws which were applied in practice at the time, which were Indonesian (p. 7).

The Court of Appeal, in the same afore-mentioned decision, held that UNTAET Regulation 2000/15, which entered into force in 2000, could not apply to events which occurred in 1999 without violating the principle of non-retroactivity (p. 8). However, the Special Panels disagreed. They found that the Court of Appeal failed to take cognisance of customary international criminal law, which was not, in 1999, a source of law applicable in East Timor. The principle of non-retroactivity as contained in Section 15 of UNTAET Regulation 2000/15 provides for retroactive qualification as criminal those acts which are clearly recognised as such in customary international law (p. 10).

The Special Panels convicted Martins for two counts of murder as crimes against humanity and sentenced him to 11 years 6 months’ imprisonment. Goncalves was convicted for both counts brought against him and sentenced to 15 years’ imprisonment (pp. 19-20).