The Prosecutor v. Joseph Leki

Court	Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number	05/2000
Decision title	Judgement
Decision date	11 June 2001
Parties	The Public Prosecutor Joseph Leki
Categories	Human rights violations
Keywords	Murder
Links	Judgement
Other countries involved	Indonesia

Summary

During Indonesia’s occupation of East Timor from 1975 until 2002, a number of crimes were perpetrated by the Indonesian Armed Forces and pro-autonomy militia groups. These crimes were largely directed against the Timorese civilian population, in particular, against those individuals suspected of being independence supporters.

The Accused in the present case, Joseph Leki, was a member of the pro-autonomy Laksaur militia group. As part of his involvement with the militia, he took part in two attacks in September 1999 in which groups of Timorese individuals were surrounded and fired upon by the militia whilst they were resting. As a result of these attacks, four individuals were killed.

The Special Panels for Serious Crimes convicted Leki for all four murders. Although in three of the four, he had not actually fired the shot, the Panels held him responsible for having contributed logistically and morally to the commission of the crimes by other members of the militia group. In the fourth instance, although Leki had fired the shot, the Panels excluded his responsibility as a principal perpetrator because he had been threatened with death if he did not follow the order to shoot. However, he remained liable on the same grounds as for the other three murders. The Special Panels sentenced Leki to 13 years’ imprisonment. The case is the first one in which the defence of duress was upheld although Leki was convicted anyway.

Procedural history

On 24 November 2000, the Public Prosecutor filed an indictment against the Accused, Joseph Leki, charging him with two counts of murder as a domestic offence contrary to Article 340 of the Indonesian Penal Code and Section 8 of UNTAET Regulation 2000/15.

The preliminary hearing commenced on 18 January 2001 and concluded on 21 February 2001. The Accused did not plead guilty. He entered a statement to the effect that he was forced to kill one of the alleged victims and was consequently not guilty. He denied responsibility with regards to the other charge of murder.

The trial commenced on 18 May 2001 and concluded on 22 May 2001.

Related developments

On 20 May 2005, Leki was granted a one-year reduction in his sentence by Presidential Decree.

Legally relevant facts

The Accused was a member of the pro-autonomy Laksaur militia group at the time of the relevant facts (p. 4). As part of his role as a security guard for the militia, he carried a gun (p. 5).

In mid-September 1999, members of the Laksaur miitia carried out an attack on Salele village, as a result of which a group of 18 residents left Salele village for West Timor (p. 3).

On 25 September 1999, whilst the group was resting in a forest, they were surrounded and attacked by the Laksaur militia, including the accused. During the attack, three individuals were killed by gunshots fired by the militiamen. Some succeeded in escaping; others were arrested, tied up and taken to West Timor (p. 3).

On 26 September 1999, the Accused and other militia members attacked a camp of refugees from Salele village whilst the group was sleeping (p. 3). The militia opened fire, including the Accused. One refugee was shot twice by other militia members before he was shot for a third time by the Accused and died as a result of his wounds (p. 6). Witness testimony provides that the Accused was ordered to shoot the victim on pain of being shot himself (p. 7). The others managed to escape (p. 4).

Core legal questions

Is the Accused liable for the deaths on 25 September 1999 when his role was limited to participating in the operation, but he did shoot any of the victims himself?
What are the elements of the defence of duress?

Specific legal rules and provisions

Section 8, 14.3(d) and 19.1(d) of UNTAET Regulation 2000/15.
Article 340 of the Indonesian Penal Code.

Court's holding and analysis

Pursuant to Section 14.3(d) of UNTAET Regulation 2000/15, an individual is liable for a crime if he in any other way contributed to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. The Accused, having joined the militia, was aware of its purpose and he contribute to the realisation of crimes committed by the militia by supporting the group morally and logistically (through carrying a gun) and by being immediately involved in both attacks in September. Even in the first attack, by holding a gun during the siege manoeuvre against unarmed civilians, the Accused played an undoubting role in the commission of the three deaths (p. 8).

Concerning the second attack, that the Accused was threatened with death if he did not shoot the victim, satisfies the elements of the defence of duress as contained in Section 19.1(d) of UNTAET Regulation 2000/15 and thereby excuses the Accused from criminal responsibility as a principal perpetrator. Nonetheless, the Accused remains individually responsible for having provided the opportunity and the means for the murder (p. 9).

The Accused was convicted on both charges of murder and sentenced to 13 years’ imprisonment (p. 12).