The Deputy General Prosecutor for Serious Crimes v. Victor Manuel Alves

Court	Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number	1/2002
Decision title	Judgement
Decision date	8 July 2004
Parties	Deputy General Prosecutor for Serious Crimes Victor Manuel Alves
Categories	Human rights violations
Keywords	murder
Links	Judgement
Other countries involved	Indonesia

Summary

The island of Atauro, off the coast of East Timor, had been subject to illegal occupation by the Indonesian Armed Forces (TNI), much as the rest of East Timor since 1975.

When the TNI departed in September 1999, a town meeting was held at which a fight broke out between the Accused, Victor Manuel Alves, and the former village chief. The latter was a pro-autonomy supporter who had collaborated with the TNI and towards whom many islanders felt animosity. He had arrived at the meeting and proceeded to provoke Alves, challenging the latter to shoot him with a rifle that Alves had brought to the meeting. Angered, Alves fired three shots as a warning; the third hit the victim and killed him.

Alves was indicted for murder contrary to the Indonesian Penal Code but the Special Panels for Serious Crimes found that the intent of the Accused to kill had not been established. He was convicted instead for the crime of causing death by negligence and sentenced to 1 year imprisonment. At sentencing, the Court took into consideration as mitigating factors the provocation of the Accused by the victim, as well as his previous role in ensuring the welfare of the islanders by successfully bribing the TNI to spare the lives of pro-independence supporters. His sentence would not be executed in the event that he compensated the victim’s family and refrained from committing any crimes for a two-year period.

Procedural history

The Deputy Public Prosecutor for Serious Crimes indicted the Accused, Victor Manuel Alves, for one count of murder in violation of section 8, UNTAET Regulation 2000/15 and Article 340 of the Indonesian Penal Code.

On 10 February 2004, the Court granted the Prosecution’s request to amend the indictment charging the Accused with murder in violation of Article 338 of the Indonesian Penal Code instead, which requires deliberate intent but not premeditation as Article 340.

The trial commenced on 28 May 2004.

Related developments

On 26 April 2005, the Court of Appeal increased the sentence to 2 years’ imprisonment.

On 20 May 2005, soon after the Accused was returned to custody following the afore-mentioned decision of the Court of Appeal, Alves was granted immediate release by Presidential Decree (see ‘Xanana Gusmao Gives Amnesty to 18 Prisoners’, Press Release, 20 may 2005).

Legally relevant facts

The island of Atauro had been occupied by the Indonesian Armed Forces (TNI) until 20 September 1999. Following their departure, a power vacuum came into being opposing pro-independence supporters to pro-autonomy supporters (para. 9). On 23 September 1999, a public meeting was held which the Accused also attended, with the role of facilitating harmony between the different faction (para. 10). At the end of the meeting, the former village chief and pro-autonomy supporter Pacheco arrived (para. 10). Convinced that the Accused intended to burn down his house for his former collaboration with the TNI, Pachecho took up a rifle that belonged to the Accused and challenged him to shoot him (paras. 11-12). The Accused fired two shots into air. As Pachecho continued to scream and shout, the Accused fired a third shot which unintentionally hit the vicim, killing him (para. 12).

Core legal questions

Absent evidence that the Accused intended to shoot the victim, can his conduct amount to death by negligence?
Which factors may be taken into account at sentencing?

Specific legal rules and provisions

Section 8 of UNTAET Regulation 2000/15.
Articles 338, 340 and 359 of the Indonesian Penal Code.

Court's holding and analysis

Absent indications that the intention of the Accused was to kill the victim, the Court nonetheless considered that the Accused caused death by acting negligently contrary to Article 359 of the Indonesian Penal Code. In making this determination, the Court considered that the Accused could have foreseen that his third shot would hit the victim or another person and he could have prevented it, considering the large number of people present, the confusion created by his previous shots, his own angry state of mind and his previous experience as a soldier in the Portuguese Army (para. 15).

The Court considered that the Accused’s decision to bring a rifle to what was to be a peaceful meeting was an aggravating factor, considering that his experience as a soldier should have warned him not to do so (para. 19). As mitigating factors, the Court took into consideration the provocation of the Accused by the victim, the prior role of the Accused in ensuring the welfare of the community, and that he encouraged others at the meeting not to harm the victim despite the latter’s support of the Indonesian regime (para. 20).

The Accused was sentenced to 1 year imprisonment, which was not to be carried out on the condition that the Accused compensates the family of the victim and does not commit a punishable act for a period of 2 years (p. 10).