The Prosecutor v. Gaspard Leki

Court	Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number	05/2001
Decision title	Judgement
Decision date	14 September 2002
Parties	The Public Prosecutor Gaspard Leki
Categories	Human rights violations
Keywords	Murder
Links	Judgement
Other countries involved	Indonesia

Summary

Indonesia illegally occupied East Timor from 1975 until 2002. During this period, the Indonesian Armed Forces (TNI) and numerous militia groups perpetrated a number of abuses against the civilian population of East Timor, particularly those believed to be independence supporters.

The Accused, Gaspard Leki, was a TNI member. In September 1999, Leki was under orders to attack a Timorese village, to burn down the houses and to shoot the civilians. In the course of carrying out these orders, he and five militia members under his command came across a group of persons hiding out in a nearby cave. These persons were forced by Leki to abandon the cave and follow him to another village. During this movement, Leki fired a shot at a target some 200 metres away, believing it to be a pig. In fact, the target was a human being who died as a result of the shot. The Special Panels for Serious Crimes considered that the mistake made by Leki as to the identity of the target he was shooting at acquits him of murder as he did not possess the necessary intention to kill another individual, as required by the applicable law. However, he was convicted for negligence as the Panel considered that Leki should have exercised greater caution in shooting. He was sentenced to 11 months’ imprisonment.

Procedural history

On 21 February 2001, the Public Prosecutor indicted the Accused, Gaspar Leki, for one count of murder as a domestic offence, contrary to section 8 UNTAET Regulation 2000/15 and section 340 of the Indonesian Penal Code. The preliminary hearing commenced on 11 April 2001 and concluded on 31 May 2001.

On 31 May 2001, the Accused entered a statement to the effect that at the time of the offense he was acting on the orders of his commander and had no intention to plan or kill any person.

The trial commenced on 5 February 2002 and concluded on 7 August 2002.

Legally relevant facts

The Accused was a member of the Indonesian Armed Forces (TNI) (para. 25).

On 8 September 1999, a TNI commander named Alicocoleo led a group of 20 TNI personnel including the Accused, to attack the village of Hohulu, to burn down the homes and shoot the civilians in that village (para. 26). The Accused himself led a group of 5 local militia members in attacking the village. Next to a nearby river, the Accused and his group came across a cave housing some 14 people, primarily women and children. The Accused forced the group to leave the cave and walk to the village of Daisoli (para. 27).

In the course of these events, the Accused shot the victim, Domingos Maukinta, twice. One of his shots hit the victim and he died as a result (para. 28). The Accused maintained that he was not aware that the target was a human being; he believed it to be a pig (para. 29).

Core legal questions

Can the Accused’s contention that he thought his shot was aimed at a pig exclude his criminal responsibility?

Specific legal rules and provisions

Section 8 and 20 of UNTAET Regulation 2000/15.
Sections 340 and 359 of the Indonesian Penal Code.

Court's holding and analysis

Pursuant to Section 20 of UNTAET Regulation 2000/15, a mistake of fact is a ground for excluding criminal responsibility only if it negates the mental element required by the crime. In the present instance, the Accused intended to kill what he believed to be a pig and not a human being. Section 340 of the Indonesian Penal Code criminalising the offence of murder requires, as its mental element, the premeditated killing of another person and not the killing of an animal (para. 33). The Accused had deliberate intent to shoot but there is no evidence that he desired the result, as the law would require (para. 41). The Court therefore concluded that there is no legitimate proof that the Accused committed the crime with which he was charged (para. 44).

However, based on the circumstances, the Court convicted the Accused of the lesser crime of negligence, contrary to Section 359 of the Indonesian Penal Code. The Court claimed that the Accused should have been more cautious before taking the shot (para. 48).

He was sentenced to 11 months’ imprisonment (para. 61).