The Public Prosecutor v. Umbertus Ena and Carlos Ena

Court	Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number	05/2002
Decision title	Judgement
Decision date	23 March 2004
Parties	The Public Prosecutor Umbertos Ena alias Mala Cloe Carlos Ena alias Tolo Cloe
Categories	Crimes against humanity
Keywords	crimes against humanity, inhumane acts, Murder
Links	Judgement
Other countries involved	Indonesia

Summary

The Accused were brothers, Umbertos and Carlos Ena. Both were members of the Sakunar militia group, a pro-autonomy group that operated in East Timor in 1999 in conjunction with other militia groups and the Indonesian Armed Forces (TNI). They participated in a countrywide campaign of violence against the Timorese civilian population, targeting particularly those persons believed to be independence supporters. In September 1999, following the results of a referendum in which the people of East Timor had voted overwhelmingly in favour of independence, the Accused and other members of the militia group targeted the village of Nakome with machetes, spears and stones.

The Special Panel found that there was insufficient evidence to establish beyond a reasonable doubt that Carlos Ena was present or participated in the attack; he was accordingly acquitted. However, Umbertos Ena was convicted for his role in the deaths of two victims and for seriously injuring a third by stoning and stabbing. He was sentenced to 11 years’ imprisonment.

Procedural history

On 5 June 2002, the Prosecutor filed an indictment against brothers Umbertus and Carlos Ena for three counts of crimes against humanity: murder, attempted murder and, in the alternative, inhumane acts.

On 19 September 2002, the indictment was amended so as to remove the count of attempted murder (see here, p. 8).

On 23 May 2003, the defense for Carlos Ena submitted an application for release to the Court, which was rejected on 12 June 2003. A second application was submitted on 18 July 2003, again rejected by the Special Panel on 12 August 2003. On appeal, the Court of Appeal granted the request and ordered the release of Carlos Ena from detention.

On 29 September 2003, the defense for Umbertus Ena filed an application for release, which was granted by the Special panel.

The trial commenced on 15 September 2003.

Related developments

On 18 March 2005, Umbertus Ena’s appeal was dismissed.

Legally relevant facts

The Accused were members of the Sakunar militia group, which oeprated in the district of Oecussi in East Timor (paras. 35, 38). In September 1999, the Accused along with other members of the Sakunar militia arrived in Nakome village armed with machetes, swords, spears, clubs and sticks (para. 39). The villagers assembled in front of their homes and were stoned by the militia (para. 42). The Accused, along with two other militia members, targeted three individuals who they perceived to be independence supporters. They proceeded to strike the victims repeatedly using their machetes and spears; two died from their wounds, the third was presumed dead (paras. 43-45).

Core legal questions

What are the requirements for the crime against humanity of other inhumane acts?

Specific legal rules and provisions

Section 5.1 (a) and (k) of UNTAET Regulation 2000/15.

Court's holding and analysis

Relying on the case law of the International Criminal Tribunal for the Former Yugoslavia in the Kupreskic and Blaskic judgements, the Special Panel held that the offense of other inhumane acts covers a range of conduct, which must have the seriousness and gravity of other underlying offences of crimes against humanity (para. 87). The attack perpetrated by the Accused on the third victim – being struck by machetes and stoned – was of a gravity and seriousness to amount to an inhumane act, since the militia left the victim thinking he was dead (para. 92).

Carlos Ena was acquitted by the Court on the grounds that his presence and participation in the attack could not be established beyond a reasonable doubt, following numerous witness testimonies (paras. 78, 96). Umbertos Ena was convicted for murder and other inhumane acts as crimes against humanity on the grounds that his conduct was a substantial cause of the deaths of the two victims and he personally inflicted the serious injury upon the third victim (paras. 95, 96). He was sentenced to 11 years’ imprisonment (para. 111).