The Prosecutor v. Inacio Olivera, Gilberto Fernandes, Jose Da Costa

Court	Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number	12/2002
Decision title	Judgement
Decision date	23 February 2004
Parties	Public Prosecutor Inacio Olivera Gilberto Fernandes Jose Da Costa
Categories	Crimes against humanity
Keywords	crimes against humanity, Murder, persecution
Links	Judgement
Other countries involved	Indonesia

Summary

In the morning of 27 August 1999, pro-independence members attacked pro-autonomy militia members at a market in Home, East Timor. In retaliation for the attack, members of the Indonesian Armed Forces (TNI) and local militia groups attacked the home of Verissimo Dias Quintas, the local figurehead for the pro-independence group Conselho Nacional da Resistencia Timorense (CNRT). Inacio Olivera, Gilberto Fernandes and Jose Da Costa (the Accused) were present at the attack and contributed to the destruction of the building by shooting rifles, directing the action and bringing in weapons.

Although the Prosecution had charged the Accused with crimes against humanity, the Special Panels for Serious Crimes found that the conduct of the Accused could not be qualified as such. Importantly, there was no link between the attack on the CNRT compound and a widespread or systametic attack against the Timorese population, which is a requisite for crimes against humanity. Instead, the Court requalified the offense as the domestic offense of violence against persons or property, contrary to the Indonesian Penal Code. They were acquitted of the crime of murder as the Court found that they did not contribute to the murder in any way. The Accused were sentenced to 18 months’ imprisonment each.

Procedural history

On 19 November 2002, the Public Prosecutor indicted the Accused, Inacio Olivera, Gilberto Fernandes and Jose Da Costa, for two counts of crimes against humanity: murder and persecution.

The trial commenced on 22 September 2003. Before closing statements were delivered, Fernandes pleaded guilty to the count of persecution and the Prosecutor withdrew the count of murder as against Fernandes.

The final written decision was issued on 23 February 2004.

Legally relevant facts

On 27 August 1999, pro-autonomy militia members, including the Accused, attacked the home of Verissimo Dias Quintas, a leader of the pro-independence group Conselho Nacional da Resistencia Timorense (CNRT). In the Court of the attack, Quintas was killed. Furthermore, people that had gathered at the house on that day to celebrate the end of the political cmpaign for independence were persecuted (p. 2).

Witnesses testified as to the involvement of the Accused: Olivera was giving orders to burn the house, Fernandes was repeatedly shooting a rifle without concern for whether the target was hit (p. 3), and Da Costa was present from the onset of the action (p. 5).

Core legal questions

Can a single act, such as the murder of a single individual, amount to a crime against humanity?
Can an attack that was not planned or premeditated form part of a widespread or systematic attack and thereby satisfy the chapeau requirement for crimes against humanity?

Specific legal rules and provisions

Sections 5.1 (a) and (h) of UNTAET Regulation 2000/15.
Article 170 of the Indonesian Penal Code.

Court's holding and analysis

The Court does not refuse the idea that even a single act of, for example, murder or persecution, may be a crime against humanity provided that the chapeau requirements for this class of crime are met in the single case. However, the Court is of the opinion that the concept of crimes against humanity should be used as a last-resort category in order to express the disapproval of the international community for atrocities whose magnitude offends the basic values and the sense of humanity of the whole international community (p. 11).

In the present instance, the attack on the Quintas compound was an act of revenge for the acts of violence perpetrated by CNRT members against the pro-autonomy militias in Home earlier that same day (p. 11). Thus, the attack and murder were impromptu actions, not planned and cannot therefore be conceived as part of a widespread or systematic attack (p. 12).

The Court requalified the count of persecution in the absence of the contextual requirement for crimes against humanity to violence against property or persons committed by a group of people united for a common purpose, contrary to Article 170 of the Indonesian Penal Code. The Accused were convicted of this count and sentenced to 18 months’ imprisonment (p. 15).

The Court acquitted the Accused of the charge of murder, finding that they provided no real contribution to the killing (p. 13).