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(Photo provided courtesy of the American University Washington College of Law, War Crimes Research Office)

(Photo provided courtesy of the American University Washington College of Law, War Crimes Research Office)

The Prosecutor v. Florencio Tacaqui

Court Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number 20/2001
Decision title Judgement
Decision date 9 December 2004
Parties
  • The Public Prosecutor
  • Florencio Tacaqui
Other names
  • Passabe Case
Categories Crimes against humanity
Keywords crimes against humanity, deportation, deprivation of liberty, extermination, Murder, other inhumane acts, persecution
Links
Other countries involved
  • Indonesia
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Summary

Indonesia illegally occupied East Timor from 1975 until 2002. Members of the Indonesian Armed Forces (TNI) worked together with local police forces and pro-autonomy militia groups to perpetrate a campaign of violence against suspected independence supporters.

The Accused, Florencio Tacaqui, was an advisor and member of the Sakunar militia group, which operated in Passabe. In 1999, both prior to and after s referendum in August in which the Timorese people voted overwhelmingly in favour of independence, it carried out a number of attacks. In particular, the Tacaqui was involved in the abduction, detention and beating of approximately 40 independence supporters at the home of a Sakunar chief. He was also involved in the attack on a village in which numerous individuals died, homes were burnt down and livestock stolen. He was convicted for 4 counts of crimes against humanity and sentenced to 12 years’ imprisonment. The Special Panel was unable to convict him for the Passabe massacre in which 47 individuals were marched from their homes to a remote area and executed. Witness testimony was contradictory and the evidence inconclusive to support his presence at the scene. The remaining 10 individuals with whom Tacaqui was indicted remain at large. 

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Procedural history

On 27 September 2001, the Public Prosecutor filed an indictment against Florencio Tacaqui and ten other individuals charging them with several counts of crimes against humanity.

With the exception of the Accused, the remainder of the other individuals indicted remain at large. As a result, the Court made the decision to sever the case against Tacaqui from that of his co-Accused.

On 28 January 2002, the Deputy Prosecutor for Serious Crimes filed an amended indictment charging the Accused with 8 counts of crimes against humanity: one count of imprisonment, one count of murder, one count of deportation, one count of extermination, three counts of other inhumane acts, and one count of persecution.

The trial commenced on 14 July 2003.

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Legally relevant facts

The Accused occupied the role of advisor or counsellor within the pro-autonomy Sakunar militia group and thus enjoyed close ties with the militia leadership in the Passabe area of East Timor (p. 13).

In the latter part of April 1999, Sakunar militia members along with members of the Indonesian Armed Forces (TNI) and the local police force detained approximately 40 individuals at the home of the Sakunar chief for Passabe. They were prevented from leaving with threats and beatings (p. 16). At the end of their detention, they were forced to participate in a ceremony in which they took a blood oath to abandon the campaign for independence (p. 17).

The Accused participated in the abduction of one individual, in the beatings and was contonously present at the premises where the individuals were detained (p. 20).

In August 1999, the Accused pursued a suspected independence supporter at his home and proceeded to cut his toe off and slash his body in several points. The victim was eventually able to escape (p. 23).

In early September 1999, the militia launched a renewed campaign of violence against independence supporters following the outcome of the referendum in which the majority of the Timorese people had voted in favour of independence. Several hundres militia members carried out operations on three villages that had most prominently supported the independence cause. Their inhabitants were forced to flee; the majority were detained and forced to march to Teolassi where they were massacred (p. 25). Approximatel 47 people were killed in this way (p. 26).

The Accused took part in the attack on the village of Kiubiselo but did not participate in the Teolassi massacre (p. 26).

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Core legal questions

  • How is the violence to which the detainees were subject at the Sakunar chief’s home to be characterised? Is it an autonomous crime or is it included within the offense of deprivation of liberty?
  • What circumstances may be taken into consideration when assessing the severity of an incidence of deprivation of liberty, contrary to section 5.1 (e) of UNTAET Regulation 2000/15?
  • Is a discriminatory intent required to constitute the crime against humanity of persecution?

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Specific legal rules and provisions

  • Sections 5.1 (a), (b), (e), (f), (h) and (k) of UNTAET Regulation 2000/15.
  • Articles 3 and 9 of the Universal Declaration of Human Rights.

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Court's holding and analysis

Violence and threats that were simply instrumental to the imprisonment are not to be considered as autonomous crimes as they are contained in the minimum measures implicit to maintain the deprivation of liberty. Where the violence exceeds the threshold of minimum measures needed to get and maintain the deprivation of liberty, then the violence is an autonomous crime deserving of autonomous consideration. In the present case, the violence to the detainees did not exceed this threshold (p. 21).

Pursuant to section 5.1(e) of UNTAET Regulation 2000/15, the crime against humanity of physical deprivation of liberty must be severe in order to constitute the offence. Severity is primarily to be determined according to the number of victims. Whilst the number of victims in the present case is not as large as previous cases before the Court, such deprivation of liberty can be considered as severe due to the width of the behaviour: it affected a vast number of independence supporters in Passabe and the surrounding areas as it was intended to act a lesson to the entire community (p. 22).

Where crimes against humanity are used as factual elements of persecution, it is necessary that the single constitutive element, the single crime against humanity, be supported by a discriminatory intent. This is necessary in the present case as each count alleged by the Prosecutor, already a crime against humanity in itself, is coated with a second layer of illegality by allegedly constituting the crime of persecution in addition (p. 48).

The Accused was convicted of all offenses charged, save one count of inhumane acts, one count of extermination and one count of deportation. He was sentenced to 12 years’ imprisonment (p. 52).

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Further analysis

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Instruments cited

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Additional materials

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Social media links

  • Linaini Films produced a film about the events that occurred in Passabe. Their blog contains further information, including references to Florencio Tacaqui. See Lianainfilms.com.