The Prosecutor v. Domingo de Deus

Court	Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number	2a/2004
Decision title	Judgement
Decision date	12 April 2005
Parties	The Prosecutor Domingo De Deus
Categories	Crimes against humanity
Keywords	crimes against humanity, Murder
Links	Judgement
Other countries involved	Indonesia

Summary

In 1999, intense violence broke out in Indonesian occupied East Timor as a referendum was held in which an overwhelming majority of Timorese voted in favour of the country’s independence. These periods of violence were characterised by acts of murder, persecution, displacement and torture of independence supporters. Much of the violence was carried out by the Indonesian armed and police forces, as well as local militia groups.

On polling day, a schoolhouse was attacked by members of the Indonesian army who proceeded to shoot bullets into the air and stab three persons before leaving with the ballot boxes. The Accused, Domingo de Deus, was a member of the Indonesian armed forces. Although he did not directly commit the stabbing and he was himself unarmed, the Special Panels for Serious Crimes convicted him on two counts of murder and one count of attempted murder as crimes against humanity due to his participation in a joint criminal enterprise to suppress the independence supporters. At sentencing, he was convicted to 2 years’ imprisonment, with the majority of the judges finding that his act of saving his relatives from the polling station merited a reduced sentence.

Procedural history

On 29 October 2004, the Prosecutor filed an indictment against the Accused Domingos de Deus who was charged with three counts of crimes against humanity: two counts of murder and one count of attempted murder. The Accused was indicted alongside Mohamad Roni and Joao da Costa but his case was separatedfrom that of Roni and da Costa by order of the Special Panel on 27 January 2005.

The trial commenced on 28 February 2005 and concluded with the verdict of the Special Panel on 16 March 2005.

Legally relevant facts

Timor-Leste had been under Indonesian occupation since 1975. In 1999, two period of intense violence broke out, one prior to and one subsequent to the referendum in which the Timorese overwhelmingly voted in favour of independence (para. 1).

These periods were characterised by widespread and systematic attacks carried out against the civilian population by militia members in favour of autonomy, members of the Indonesian armed and police forces (para. 2). Amongst the militia groups operating at the time was Tim Pancasila (para. 4).

Also present were members of the UN Administrative Mission in East Timor (UNAMET) whose purpose was to assure the regular operation of the referendum (para. 8).

The Accused was a member of the Indonesian armed forces (TNI) who arrived at a schoolhouse on election day when TNI members shot into the air and stabbed two men (paras. 16, 21, 26-27). Amongst the crowd in the schoolhouse were relatives of the Accused, who were allowed to leave under his care unharmed (para. 24).

Core legal questions

What level of contribution is required for the Accused to be held criminally responsible for crimes perpetrated by a group of persons acting with a common purpose?
What mitigating circumstances may be taken into account at sentencing?

Specific legal rules and provisions

Sections 5.1, 10.1, 14 and 18 of UNTAET Regulation 2000/15.

Court's holding and analysis

Pursuant to Section 14.3(d) of Regulation 2000/15, a person may be criminally responsible even if he did not personally perpetrate the crimes, in the event that he contributed to the commission of the crimes by a group of persons acting with a common purpose. The Accused’s membership in the organised force intent on killing UNAMET staff as part of the independence supporters; his threatening posture of carrying a gun and his intimidation of the unarmed people in and around the polling station establishes his participation in the joint criminal enterprise (p. 13).

The Panel considered the following as mitigating circumstances: that the Accused saved his relatives and additional persons; his being unarmed; his low contribution to the criminal act; and his re-integration into society (p. 14).

He was sentenced to 2 years’ imprisonment (p.15); Judge Schmid dissenting on the grounds that the accused took a leading part in the events (p.1) and did not attempt to save any of the victims (p.3).