The Prosecutor v. Julio Fernandez

Court	Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number	02/2000
Decision title	Judgement
Decision date	1 March 2001
Parties	The Public Prosecutor Julio Fernandez
Categories	Human rights violations
Keywords	Murder
Links	Judgement
Other countries involved	Indonesia

Summary

In response to Indonesia’s illegal occupation of East Timor from 1975 until 2002, a number of pro-independence groups emerged which sought to challenge Indonesian rule over the Timorese.

The Accused, Julio Fernandez, was a member of one such group, the Forcas Armadas de Libertacao Nacional de Timor Leste (FALINTIL). In September 1999, when he was returning to his village from his hideout in the mountains where he sought refuge from the pro-autonomy militias, he came across the villagers surrounding and shouting at a man tied to a chair, who was already injured. Fernandez proceeded to question the man and ascertained that he was a militia member. Fernandez then stabbed the man twice, as a result of which he died. The Special Panels convicted Fernandez of murder and sentenced him to 7 years’ imprisonment. Fernandez was the only FALINTIL member to have been convicted by the Special Panels.

Procedural history

On 16 November 2000, the Public Prosecutor filed an indictment against the Accused, Julio Fernandez, charging him with murder as a domestic offence, contrary to Section 8 of UNTAET Regulation 2000/15 and Article 340 of the Indonesian Penal Code.

On 10 January 2001, the preliminary hearing was held. The Accused made a statement concerning the charge but the Special panels considered that it did not amount to a guilty plea as the Accused did not agree totally with the charge.

The trial was held on 6 February 2001.

Related developments

On 29 October 2001, the Court of Appeal reduced the Accused’s sentence to 5 years’ imprisonment (see ‘Court of Appeal Reduces FALINTIL Member’s Sentence to 5 Years’, Judicial System Monitoring Programme, 29 October 2001).

Fernandez was granted conditional release on 9 September 2003.

Legally relevant facts

The Accused was a member of the pro-independence group Forcas Armadas de Libertacao Nacional de Timor Leste (FALINTIL) (para. D3).

On 26 September 1999, the Accused returned to East Timor from the mountains to which he had fled to escape the militia attacks and avoid displacement to West Timor. On his return, he encountered the villagers in Gleno surrounding and shouting at a man who was sitting on a chair, his hands tied behind his back, and with obvious evidence of having been beaten. When it emerged that the man was a member of the pro-autonomy Darah Merah militia group who was unable to escape to West Timor with the others, the Accused stabbed the man twice with a knife. The man died as a result and the Accused ordered those present to bury him (para. D3).

Core legal questions

What is the distinction between murder and manslaughter as codified in Articles 338 and 340 of the Indonesian Penal Code?
What are the elements of the defence of duress?

Specific legal rules and provisions

Section 19.1(d) of UNTAET Regulation 2000/15.
Articles 49, 338 and 340 of the Indonesian Penal Code.

Court's holding and analysis

The difference between murder (Article 340) and manslaughter (Article 338) is premeditation. According to Indonesian jurisprudence and the interpretation of murder in different countries, premeditation does not necessarily imply a long-term planning of the conduct. It suffices for the perpetrator to have thought about acting and to have decided whether to take the life of the victim or to withdraw from that intention. The time for that decision to be made can be very short (minutes or seconds); rather, what is decisive is that nothing exceptional interferes with the decision. This was so in the present situation – the Accused reached the decision to kill the victim after questioning him and listening to his answers (para. E3).

Article 49 of the Indonesian Penal Code provides that duress is a defence, excluding criminal responsibility, on the condition that the conduct was necessitated by the defence of the perpetrator’s or another’s body, chastity or property. Section 19.1(d) of UNTAET Regulation 2000/15 requires a higher threshold. It provides that duress is only a defence where the conduct results from a threat of imminent death or continuing or imminent serious bodily harm. In the present instance, the Special Panel concluded that there was no evidence of such a threat to the Accused or any other individual (para. E4).

The Special Panel convicted the Accused of murder and sentenced him to 7 years’ imprisonment (para. H).