The Public Prosecutor v. Salvador Soares

Court	Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number	7a/2002
Decision title	Judgement
Decision date	9 December 2003
Parties	The Public Prosecutor Salvador Soares alias Salvador Leos Marobo
Categories	Crimes against humanity
Keywords	crimes against humanity, duress, Murder, torture
Links	Judgement
Other countries involved	Indonesia

Summary

During Indonesia’s illegal occupation of East Timor from 1975 until 2002, the Indonesian Armed Forces (TNI) along with a number of militia groups perpetrated widespread abuses against the civilian population, particularly targeting those known to be or suspected of being pro-independence supporters.

In September 1999, members of the TNI and Dadurus Merah Putih (DMP) militia of which the Accused was a member, surrounded the home of a known independence supporter. In his absence, his relative was dragged outside and beaten with machetes, spears and stones until he died. His brother-in-law, emerging from the neighbouring home, was also targeted – he was shot and stabbed until he too died. The Accused was convicted by the Special Panels for Serious Crimes for his participation in the murder of both victims and sentenced to 10 years 6 months’ imprisonment. He was, however, acquitted of the charge of torture as the Special Panel found that he did not act with the intent of torturing the victims, but 'solely' with the intent to cause their death.

Procedural history

On 24 June 2002, the Public Prosecutor indicted the Accused, Salvador Soares and 9 other persons. The Accused was charged with two counts of crimes against humanity: murder and torture.

The preliminary hearing was held on 6 September 2002. The Court decided to severe the Accused’s case from that of the 9 co-accused who remained at large. The Public Prosecutor therefore filed an amended indictment on 13 September 2002.

The trial commenced on 29 September 2003 and concluded on 9 December 2003.

Legally relevant facts

Widespread or systematic attacks were directed against the civilian population in East Timor in 1999 in connection to the referendum on independence from Indonesia (para. 67). These attacks were part of an orchestrated campaign of violence and carried out by pro-autonomy militia, whose goal was to support autonomy of East Timor within Indonesia (para. 68-69).

The Dadurus Merah Putih (DMP) was a pro-autonomy miltia group that operated in Bobanoro District in 1999, in close connection with the Indonesian Armed Forces (TNI). The Accused was a DMP member (paras. 176-177).

On 2 September 1999, TNI and DMP members, including the Accused, surrounded the home of Ruben Soares and Domingos Pereira, who were known independence supporters and worked with United Nations Assistance Mission in East Timor (UNAMET) (paras. 175, 180-181). Ruben Soares was stabbed multiple times by several people, including Salvador Soares, until he was dead. Domingos Pereira was shot and stabbed, leading to his death (para. 103-108, 148, 184-185).

Several (defence) witnesses testify that Salvador Saores was pressured into participating in the militia, threatening to kill him or his family (para. 160-166).

Core legal questions

Can the same underlying conduct that constitutes the offence of murder also constitute the offence of torture? (How is murder established as a crime against humanity?)
How may the different definitions of torture as a discrete crime in section 7.1 and torture as a crime against humanity in section 5.1(d) of UNTAET Regulation 2000/15 be reconciled? (How is torture established as a crime against humanity?)
Can threats to an accused and his family count as duress to set aside criminal responsibility for acts he perpetrated?

Specific legal rules and provisions

Sections 5.1(a),(d), 7.1 and 14.3(a) of UNTAET Regulation 2000/15.

Court's holding and analysis

Regarding the murder charge, the Court looks at a definition given by the Special Panel in the case of The Public Prosecutor v. Joni Marques (para. 194): for murder as a crime against humanity, there is no requirement of premeditation as the mental element. Instead, “the mens rea is restricted to the deliberate intent to cause the death of the victim or that such result would occur in the normal course of events” (para 194-195). The Court held that it was proven that Ruben Soares and Domingos Pereiros died as a result of the violence at the hands of Salvador Soares and other militia members, and that the attack was of such a nature that Salvador Soares intended this or that he was aware this was a possibility (para 196-199).

The Court went on to consider what the legal elements were of torture as a crime against humanity. The Court looks at definitions given in several international conventions and instruments. The Court distinguished between torture as a crime against humanity and torture as an autonomous crime; both are included in UNTAET regulation 2000/15. This differentiation is important because only torture as an autonomous crime has the element of purpose (para. 218-221). This difference is seen in Section 7.1 of the Regulation requires that the torture be committed for the purpose of obtaining information or a confession, or punishing, intimidating, coercing or discriminating. Section 5.1(d), on the other hand, concerns torture as a crime against humanity, and does not require any special intent (para. 221). The Court considered, however, that despite this omission in Section 5, for any of the definitions the crime of torture requires something more than the objective element (infliction of severe pain); it must also be accompanied by an intention to torture, whatever the aim may be (para. 222). The Court therefore held that in this case, while machetes can cause a particularly painful death, there was no intent to torture, only to injure and kill (para. 223-225). Therefore, the elements of torture as a crime against humanity were not satisfied.

The Court was not persuaded by the defence of duress, namely that Salvador Soares participated in the militia because he and his family were threatened. According to the Court, many people had resisted joining the militia and fled. Salvador Soares had also had these opportunities (para. 188).

The Special Panel convicted the Accused of two counts of murder as crimes against humanity (para. 226) and sentenced him to 10 years and 6 months’ imprisonment (para. 241).