The Prosecutor v. Joao Fernandez

Court	Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number	01/2000
Decision title	Appeals Judgement
Decision date	29 July 2001
Parties	The Public Prosecutor Joao Fernandez
Categories	Human rights violations
Keywords	Murder
Links	Appeals Judgement
Other countries involved	Indonesia

Summary

In the first appeals judgment from a case before the Special Panels for Serious Crimes, the Court of Appeal of East Timor was seized by Joao Fernandez, a member of the Dadurus Merah militia group, which operated in East Timor during Indonesia’s occupation of the latter. Fernandez had been convicted by the Special Panels and sentenced to 12 years’ imprisonment for murder after he pleaded guilty to stabbing a village chief twice in the back with his samurai sword until the chief died.

On appeal, he argued that the fact that he was acting on the orders of the militia chief and the Indonesian Armed Forces should have secured his acquittal before the Special Panels. The Court of Appeal dismissed the appeal finding that, on the basis of the proven facts, Fernandez did intentionally and with premeditation murder the village chief. The Indonesian Penal Code does not provide that superior orders may exclude criminal responsibility, unless those orders were given by a competent authority. Neither the militia chief nor the Indonesian Armed Forces had the legal competence to order the killing of individuals, nor was Fernandez under a legal obligation to follow those orders. The Court of Appeal also upheld his sentence.

Procedural history

On 14 November 2000, the Office of the Deputy General Prosecutor for Serious Crimes filed an indictment against the Appellant, Joao Fernandez, charging him with murder as a domestic offense, contrary to section 8 of UNTAET Regulation 2000/15 and Article 340 of the Indonesian Penal Code.

On 10 January 2000, the Appellant pleaded guilty to the charge during the preliminary hearing. After verifying the validity of the guilty plea, the sentencing hearing was held on 18 January 2000. The Appellant was sentenced to 12 years’ imprisonment on 25 January 2001.

Legally relevant facts

The Appellant was a member of the Dadurus Merah militia (p. 1).

On 8 September 1999, the Appellant received orders to go to the home of the militia chief, Monteiro. There he was handed a samurai sword, along with other militia members, and ordered to go to the district police station in Maliana to kill all the males. The Appellant proceeded to the station where he was led by the police chief, along with another militia member, to a room where the victim, Domingos Goncalves Pereira was hiding. Pereira was the village chief of Ritabou (p. 2).

The Appellant dragged the victim from his hiding place and stabbed him in the back with his sword. His felloe militia member also stabbed Pereira twice in the chest. Seeing that the victim was still alive, the Accused delivered a final blow to the victim who died as a result (p. 2).

Core legal questions

Did the Special Panels err in law when it convicted the Appellant despite his confession establishing that he acted under the orders of his superiors in the Dadurus Merah militia and therefore his conduct was not the result of deliberated and premeditated taking of the victim’s life?

Specific legal rules and provisions

Sections 8 and 16 of UNTAET Regulation 2000/15.
Articles 48, 55 and 340 of the Indonesian Penal Code.

Court's holding and analysis

The Appellant maintained that, in view of the facts proven by his confession of guilt, the Special Panels should have acquitted him of the charges as his actions did not result from the premeditated and deliberate intent to kill the victim, but rather he acted under orders. This would support an acquittal pursuant to Articles 48 and 55 of the Indonesian Penal Code (p. 7).

The Court of Appeal, however, considered that in the presence of the proven facts, the Appellant committed the crime of murder as contained in Article 340 of the Indonesian Penal Code. He did, in fact, take the life of the victim deliberately and intentionally: he dragged the victim out of his hiding place and stabbed him once with a sword, and then again when he saw the victim was still alive (pp. 7-8). He further acted with premeditation as he obtained a samurai sword beforehand and disguised his face by painting it black (p. 8).

The Indonesian Penal Code does not provide for superior orders as a ground for excluding criminal responsibility. Article 51 only excludes responsibility where the perpetrator acted by executing an official order given by a competent authority. In the present case, neither the militia chief nor the Indonesian Armed Forces had the legal competence to order the killing of individuals, nor did the Appellant have a legal obligation to execute that order (p. 8).

The appeal was therefore dismissed and the sentence upheld (p. 11).