The Prosecutor v. Francisco Dos Santos Laku

Court	Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number	08/2001
Decision title	Judgement
Decision date	25 July 2001
Parties	The Public Prosecutor Francisco Dos Santos Laku
Categories	Human rights violations
Keywords	Murder
Links	Judgement
Other countries involved	Indonesia

Summary

Indonesia illegally occupied East Timor from 1975 until 2002. In the course of this occupation, members of the Indonesian Armed Forces (TNI) collaborated with local militia groups for the purposes of identifying, questioning and attacking alleged or known independence supporters.

In 1999, the Accused, Francisco dos Santos Laku, was a member of the TNI. He travelled in a convoy of cars to a militia checkpoint, with an individual in custody. The individual was then handed over to the militia members who were to question and then to kill him, on Laku’s orders.

The Special Panels for Serious Crimes convicted the Accused of murder, contrary to the criminal law applicable at the time. He was sentenced to 8 years’ imprisonment. Interestingly, although the Panel made findings as to the widespread and systematic nature of the crimes perpetrated by the militia, neither the indictment nor the final judgement charged the Accused with murder as a crime against humanity, a more serious offence.

Procedural history

On 21 March 2001, the Public Prosecutor indicted the Accused, Francisco dos Santos Laku and two others, Armindo dos Santos and Mario de Carvalho for one count of murder as a domestic offense, contrary to section 8 of UNTAET Regulation 2000/15 and Section 340 of the Indonesian Penal Code.

On 9 May 2001, the Special Panels severed the case of the Accused from that of his two co-Accused. Considering that the Accused was in detention whilst the other two remained at large, not severing the case would lead to a delayed trial and violate the rights of the accused to a fair and quick trial. An amended indictment was consequently filed by the Prosecutor.

The trial commenced on 30 May 2001.

Related developments

On 31 May 2004, the Court of Appeal increased the sentence of the Accused to 9 years’ imprisonment.

Legally relevant facts

The Accused was a member of the Indonesian Armed Forces (TNI) (p. 6).

On 7 September 1999, the Accused and other TNI soldiers under his command travelled in a convoy of trucks to a militia checkpoint on the road, outside the village of Berame. Travelling with the convoy under the detention of the TNI soldiers was Celestino Fernandes. At the checkpoint, Fernandes was removed from the vehicle. The Accused fired two shots into the air and ordered the militia members to question Fernandes, and then to kill him. The sodiers were warned that if they did not carry out his orders, they themselves would be killed. The soldiers, acting on the Accused’s orders forced Fernandes to walk along a track to a dry river bed. He was then stabbed twice in the stomach. He died as a result of these wounds (pp. 4-5).

Core legal questions

Considering that the murder was directly carried out by other individuals, how is the Accused’s mode of liability to be characterised?
How is premeditation determined for the offense of murder as contained in Section 340 of the Indonesian Penal Code?

Specific legal rules and provisions

Section 14.3(b) of UNTAET Regulation 2000/15.
Section 340 of the Indonesian Penal Code.

Court's holding and analysis

Even if the Accused was not the main perpetrator of the murder, he ordered it. Pursuant to Section 14.3(b) of UNTAET Regulation 2000/15, a person shall be criminally responsible for a crime if that person orders the commission of such a crime, which in fact occurs or is attempted. The Accused is therefore liable for the murder of Fernandes (p. 11).

Premeditation means that there is a lapse of time between when the intent to murder arises and when the intent is actually realised. In the present instance, the Accused acted with premeditation as the Accused knew and could calmly assess how the murder was to be committed. He handed over the victim to the militia members, ordered them to question him and kill him. The time between when the decision arose to join and participate in the militia campaigns and operations to kill can be assessed as the element of premeditation (p. 11).

The Accused was convicted of murder and sentenced to 8 years’ imprisonment (p. 13).