The Prosecutor v. Marcelino Soares

Court	Court of Appeal (Tribunal de Recurso), Special Panel for Serious Crimes, Dili District Court, East Timor
Case number	11/2003
Decision title	Judgement
Decision date	17 February 2005
Parties	The Prosecutor Marcelino Soares
Categories	Crimes against humanity
Keywords	crimes against humanity, murder, persecution, torture, command responsibility, individual responsibility
Links	Judgement

Summary

Marcelino Soares was a Village Level Commander of the Indonesian Army (TNI) during the violence that followed after East Timor’s 1999 referendum concerning its independence. On 20 April 1999 soldiers under the command of Soares arrested three pro-independence supporters on his orders. The three prisoners, Luis Dias Soares, Rafael de Jesus and Felipe de Sousa were taken to an empty building on the orders of Marcelino Soares were they were detained, interrogated and physically abused by Soares himself and his subordinates. Luis Dias Soares died as a result of the wounds inflicted on him.

Soares was charged with murder, torture and persecution by illegal detention as crimes against humanity. The Court found that Soares was responsible for the murder of Dias Soares on the basis of command responsibility, as the death of Dias Soares resulted from his omission to control the soldiers under his command. For murder (or torture, or persecution) to be considered a crime against humanity, the act must be part of a widespread and systematic attack. The Court considered this was the case, and that Soares knew about this, as he attended TNI meetings.

The Trial Court convicted Soares, on the basis of both individual and command responsibility, for murder of one person and torture and persecution of three persons, as crimes against humanity, and sentenced him to 11 years imprisonment.

The Public Defender appealed against the conviction of the Dili District Court. The Court of Appeal examined whether an error of fact (leading to an error of law) had been committed by the Trial Court, when it acknowledged the systematic character of the attack against the civilian population contextual to the conduct of the accused, the illegality of detention of victims and the command responsibility of the accused.

The Court of Appeal found that the Trial Court had not erred in these matters and confirmed the judgment of the Trial Court.

Procedural history

Marcelino Soares was indicted on 28 February 2002 and charged with murder, torture and persecution by unlawful detention as crimes against humanity. On 11 December 2003 Soares was found guilty of murder, torture and persecution as crimes against humanity by the Dili District Court and sentenced to 11 years’ imprisonment.

Legally relevant facts

Marcelino Soares was a Village Level Commander (Head Sergeant) of the Indonesian Army (TNI) during the violence that followed after East Timor’s 1999 referendum concerning its independence.

On 20 April 1999 soldiers under the command of Soares arrested three pro-independence supporters on his orders. The three prisoners, Luis Dias Soares, Rafael de Jesus and Felipe de Sousa were taken to an empty building on the orders of Marcelino Soares were they were detained, interrogated and physically abused, both by Soares himself as by his subordinates without him intervening or punishing them afterwards. Luis Dias Soares died as a result of the wounds inflicted on him. These acts and omissions were part of widespread and systematic attacks by the Indonesian military on the civilian population to terrorize and discourage those in favour of independence. Soares was aware of this context.

The Public Defender appealed against the conviction of the Dili District Court on the following grounds: (1) Lack of proof with regard to i) the existence of a widespread and systematic attack; ii) the illegal character of the detention of the victims; iii) the essential elements of command responsibility; (2) procedural violations regarding the applicable evidentiary rules and the wrong evaluation of facts.

Core legal questions

Did a widespread and systematic attack occur?
Was the detention of the victims illegal in character?
Were the essential elements of command responsibility proven by the Trial Court?

Specific legal rules and provisions

Sections 15 and 16 of UNTAET Regulation 2000/15.

Court's holding and analysis

The Court of Appeal did not address all grounds of appeal. For instance, it did not discuss the alleged procedural violation of evidentiary rules. The Court of Appeal did consider the alleged lack of evidence in support of the existing widespread or systematic attack briefly. The Court stated that this attack did in fact exist and that the actions of the defendant were part of it (para. IV(B)).

Secondly, the Court of Appeal shortly discussed the alleged lack of proof regarding the illegal character of detention of the three independence supporters. Showing that such detention constitutes an “intentional and severe deprivation of fundamental rights contrary to international law” appears one of the key elements of persecution as a crime against humanity. The Court of Appeal stated very briefly that the defendant had no ‘powers’ and no ‘legitimate mandate’ to detain the victims.

Thirdly, with regard to the ground of appeal that the elements of command responsibility were not proved a trial, the Court of Appeal briefly addressed its relevant elements under Section 16 of UNTAET Regulation 2000/15.

The Court simply states that Marcelino Soares had the position of village level commander of TNI, that he knew of the acts his subordinates had, or were about to commit and his failure to intervene or punish them for these actions.