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ELSAM Report on Indonesian Ad Hoc Trials = for East=20 Timor
Report No. 3



Monitoring=20 Progress Report # 3
Ad Hoc Human Rights Court
Against Gross = Human=20 Rights Violations in East Timor
April- September 1999 =
Foreword=20

The ad hoc Human Rights Court for East Timor has went on for = nearly=20 four months now, since the commencement of the first trial in the = month of=20 February 20002.

At this point, the examination process has begun examining the=20 witnesses. This process is the continuance right after the = allegations and=20 responses, as well as the Preliminary Verdict of the Counsellor ad = hoc=20 Human Rights Court panel of judges in further response towards the = objections the Counsellor has put forward in connection with the = case=20 where court prevails over the case's authority. Therefore, the = witness=20 examination process is based on the attempt to obtain information=20 regarding the legal facts that are involved with the items in the = charges=20 in the letter of allegations of the ad hoc General Attorney. This = effort=20 is done through questioning the witnesses that come forward to the = stand.=20 These questions are given to find the element of crime from the=20 allegations, in this case, concerning crimes against humanity and = command=20 responsibility . It is expected that through the knowledge of the=20 witnesses of the incident, it can help find the legal facts = required in=20 locating the truth in court.

Therefore, in this phase, the ability of the General Attorney = to=20 formulate clearly the elements of crime from the charges that has = been=20 formulated to become one important factor. As regulated in the = regulations=20 regarding the establishment of proof in the Criminal Conduct, the=20 witnesses' information will be the main evidence in the court = process .=20 There are three important things that will be iterated further in = this=20 report: (1) General monitoring throughout the whole process of = examining=20 the witnesses for one month, (2) the content of the testimony, and = (3) The=20 procedureof examining the witness, which includes the rights of = the=20 witness within the court - particularly, in relation with = witnesses who=20 are victims.

1. General Overview

Until this moment, the court is still in the process of = examining the=20 witnesses. Since the initial examination that began in the month = of=20 February, there have been at least 31 witnesses (refer to the = table).

From all the 31 witnesses, there are only three witnesses who = are=20 victims or family members of the victims that could be presented = in the ad=20 hoc Human Rights Court on East Timor. This is far from a ideal = proportion,=20 keeping in mind how many people have been victimized as charged by = the=20 Attorney. The failure of the General Attorney of the Republic of = Indonesia=20 to present other witnesses, who are victims, makes the composition = of the=20 process of examining witnesses imbalanced to be able to be called = as a=20 fair witness process.

The incapability to produce witnesses who are victims = proportionally=20 with other witnesses actually demands the panel of judges = objectivity to=20 proceed with the necessary actions required, such as, replacing = the=20 presence of the witnesses by reading the witness judicial = procedure or=20 even discovering breakthroughs that may improve and aid the = examination of=20 the case .

Asides from that, the larger portion of the witnesses produced = by the=20 General Attorney comes from the Indonesian Armed Forces or the = Police=20 Department (ABRI / POLRI) that have the tendency to give = information that=20 doesn't strengthen the allegations compiled. Observing some of the = examinations that are in court are on the contrary to = strengthening the=20 General Attorney's charges. First of all, the witnesses hold = important=20 positions in the organizational structure of the ABRI / POLRI that = were=20 examined in the initial process of the witness examination . = Meanwhile,=20 the Counsellor has also produced witnesses that weaken (a = decharge) the=20 charges against the defendants. The procedure of the examination = of the=20 witnesses in the Ad Hoc Human Rights Court refers to the = regulations on=20 establishment of evidence as regulated in the Criminal Code. The=20 examination of witnesses is regulated in Articles 159-182 Criminal = Conduct.

2. Investigation for the element of crime during the = examination of the=20 witnesses

Keeping in mind the case investigation is based on the judicial = procedure as regulated in the Criminal Code, the testimonies play = a vital=20 role. Testifying in the court is one of the strongest evidence = that may=20 influence the judges' evaluation on the allegations charged on the = defendants. By referring to this judicial process, the facts = brought to=20 trial will be the main thing that will become the foundation for = the=20 judges to make a decision on the case.

Therefore, the whole process of examining the witness is based = on the=20 allegations formulated by the ad hoc attorney. The whole case = files will=20 focus the charges on two important things. First, it regards the = form of=20 the crimes against humanity (article 7 Act No 26/2000). According = to the=20 allegations formulated by the ad hoc General Attorney, it is both = in the=20 form of murder and 'assault' (article 9 Act No 26/2000) as a part = of an=20 attack that is widespread and systematic (known as an attack) = targeted to=20 civilians. Second, related with the command responsibility from = the=20 defendants that comes from both the military and civil. The = defendants=20 having authority are accountable criminally on the gross human = rights=20 violations conducted by one's subordinates. As the superior, the=20 defendants are charged as incapable to conduct and effective and=20 appropriate control (article 42 Act No. 26/2000) .

The process of proving this charge has a few important focuses = in=20 relation to the efforts of the ad hoc General Attorney to = transcend the=20 element of crime from the crimes against humanity and command=20 responsibility in the examination of the witness. In the element = of crimes=20 against humanity, the biggest challenge lies the establishing the = evidence=20 of a systematic and widespread element . Asides from that, the = attorney=20 should also be able to differentiate the meaning of murder in the = context=20 of crime against humanity and the general meaning of murder as a = Criminal=20 Act. In a court of crime, the defendants are usually the person = who is=20 accountable in one's position as the direct perpetrator or as an=20 instigator or an accomplice to the crime . Meanwhile, the crime = against=20 humanity decides that actions are generally done individually, but = can=20 also be based on a collective action . In this light, there are a = few=20 elements that become an important foundation, that is, there is an = authorized policy-maker that forms the series of incidents that = resulted=20 in an individual act, can be categorized as an understanding of = crimes=20 against humanity.

Asides from this distortion, the translation of the concept = within the=20 classification of acts, under the definition of crimes against = humanity,=20 specifically involving the translation of "persecution", as = 'assault' in=20 Act No.26/2000, also creates a new challenge to establish a solid = evidence=20 that may not be easy on the judge .

In relation to command responsibility, the greatest challenge = faced by=20 the court is to establish solid evidence against the incapability = to do an=20 effective control. Also, the evidence regarding the qualification = of=20 disregarding information and taking the necessary appropriate = actions to=20 stop the gross human rights violations becomes an important point = in=20 investigations. This challenge increases, with the case related to = command=20 responsibility; the court is faced with actions not done directly = by the=20 nation's apparatus (civil or military), but on the contrary the = actions=20 done by the Civil Militia. Particularly, in regard to the chain = for the=20 establishment of evidence that direct control between the = officials=20 (civil/military) with the civil militia that conducted the direct=20 violations. Similar difficulties were experienced in the = establishment of=20 evidence towards humanity crimes that involve the civil militia in = the=20 International Tribunal's case for Yugoslavia and Rwanda .

The weaknesses in compiling a charge should also be taken into = account=20 by considering the mentioned elements: the process of examining = the=20 witnesses becomes an important pillar of evidence on the elements = of crime=20 in this case. Moreover, keeping in mind the regulations in = Criminal=20 Conduct, concerning the examination of witnesses, provides = recognition on=20 how important facts are in a court during the examination of a = witness.=20 The witness' information that is used as evidence is what the = witness has=20 stated in court .

The process of examining the witness is coloured by the = revocation of=20 various important sections of the witnesses' testimony by the = witnesses=20 themselves in the BAP (Examination Records). In the case of Herman = Sedyono=20 Et.al, almost all the witnesses revoked their earlier testimonies = as=20 recorded in the BAP for a few items of significant information, = such as=20 the confession of attacks, coordinative meetings between = government=20 officials and military officials, the sound of gunshots and the = formation=20 of civil security groups, are all revoked during the examination = in court=20 . The reasons for revocation begin from acknowledging pressure, or = statements in the explanation that were priorly intended as = personal=20 opinions, therefore, does not fulfil the qualification as a = testimony. On=20 this matter, the panel of judges as well as the General Attorney = did not=20 elaborate further during further examinations in the courtroom. In = the=20 files of Abilio and Timbul Silaen, the same thing happened.

The revocation of testimonies are also done on other crucial = sections=20 that were related to the testimony that there were = inter-connections=20 between the formation of civil security forces with the policy or = support=20 from those holding the power of authority in the regional level, = such as=20 in technical relations like guidance and trainings. Therefore, in = the=20 further examination of the witnesses throughout the month of May, = the=20 testimony stating that there had been attacks were almost none. In = further=20 developments, the panel of judges including the General Attorney = also used=20 the word 'clashes' as an understood substitute for these = 'attacks'. The=20 usage of the word itself imposes an implication on the fulfilment = and=20 evidence of crime in the allegations .

Another example of the problems found during the examinations = of Adam=20 Damiri's witnesses, was that the meaning of militia is stated as=20 non-existent . Further on, in the same examination, the witnesses = also=20 revoked their iterations that stated the Pam Swakarsa was a = reformation of=20 the Pro-Integration Defenders .

In another part, the testimonies throughout the month of May is = still=20 coloured with statements that are classified as opinions, and even = feelings. This is also imposed in the questions forwarded by the = panel of=20 judges themselves to the witnesses. A few questions forwarded by = the=20 General Attorney or Counsellor does not wholly direct to = testimonials in=20 the form of legal facts concerning the incidents. In the = examination of=20 Adam Damiri, there were even questions asking the witnesses = judgements of=20 the decisions made by the Goevernor of East Timor, Ailio, in = handling the=20 security:
=85
Q: Accordint to your knowledge, it exists. So, = within=20 the clash that was charged by attorney, the governor was involved. = Do you=20 think the Governor has no role whatsoever, and that this Governor = always=20 puts a lot of efforts?
A: He did.
Q: Was his effort = maximum?
A:=20 It was.
Q: To solve the problem?
A: Yes.
Q: Thank you! = Sir,=20 General.

The defendant's legal counsellor mainly forwards these = questions. There=20 is an abundant of questions that are personal by nature, asking = the=20 witness for their judgement on the incident, and not to confirm = and=20 validate the occurrence of the incident itself. There are other = questions=20 that often appear that is a confirmation by nature and = dichotomised, as in=20 yes-no answers, that is also leading the witnesses. This is = particularly,=20 in relation with the background found in the Note of Objection on = the=20 procedure of the trial and the allegations of the attorney .

The panel of judges in several examinations of the witnesses = did=20 similar things as demonstrated in the examination of Emilio = Bareto, a=20 witness who was a victim for the Timbul Silaen case file, as seen = below:=20
=85
Judge : You feel secure, right. Although like that, = then suddenly=20 an attack came. Seeing that, do you feel any disappointment on the = security outside?
Witness : Disappointed
=85.
Panel of = judges: By=20 saying disappointed, why are you disappointed?
Witness: = Because the=20 condition could not be handled
=85.
Panel of Judges: With = the militia,=20 like that. How are you disappointed? Are you very disappointed, a = little=20 disappointed, or, how were you?
Witness : A little = disappointed=20 because I was one of the victims there.

Even in relation with a witness who was a victim, the questions = from=20 the legal counsellor are questions that trap the witness. During a = witness' examination:

=85..Beloved Madam, I beg for your honesty. Fatimah worked = after you=20 became a witness or before you became a witness? You don't need to = look at=20 the foreigner on your right, I know he was guiding you all along; = you=20 don't have to look at him. Look at me. If you have to look at the = judge,=20 just listen you don't have to look at my face. Madam, look at the = judge=20 only. Please Madam, look there. You're like being taught! My = beloved=20 Madam, Madam, Fatimah works after you became a witness or before = you=20 became a witness? (The witness did not answer) Thank you Madam, if = you=20 don't want to answer, I don't want to force you. But, from your = bottom of=20 your heart, my beloved madam, were your daughters raped or wanted = to be=20 raped? Madam, please answer, madam, raped or wanted to be = raped?

Asides from this, during the examination of several other = witnesses,=20 the questions forwarded by the General Attorney were actually out = of the=20 context of the case and tend to show contempt towards the court, = thus=20 resulting in a strong reaction from the panel of judges.

Counsellor: "=85 in the Soya village there was a riot. Now, say = the=20 Republic of Indonesia Police and the Army secured it; will it = later be=20 brought to court? With the witness' knowledge will the attorney = and the=20 Human Right Defenders secure the riots in Indonesia, so that he = will not=20 be brought to the Human Rights Court?
The panel of judges: = (knocking=20 the mike) You do not have to answer it, it was only an opinion. =
(and=20 still answered by the witness).
Counsellor: "=85.the hostaging = of Suai's=20 Danramil by Falintil, because it is an act of law, and during that = time in=20 the province of East Timor, does the witness know? Were they = brought to a=20 Human Rights Court?
Witness: No.
Counsellor: So, if a=20 pro-independence group does a violation of Human Rights, the case = is not=20 brought trial, but the others are.

3. Witness Examination Procedure:

Based on the observation in the judicial process, particularly = in the=20 phase of examining the witnesses, there are a few particular = points,=20 especially related with victims who become witnesses. There are = three=20 important things related with the procedure of examining the = witnesses=20 that covers: (1) guarantee of security, (2) the witnesses' rights = during=20 the trial, (3) the schedule of the trials.

3.1. Regarding the Witnesses' Security

Until the 31st of April 2002, there are only three witnesses = who are=20 either a victim or the family member of a victim who had testified = in=20 court, produced by the General Attorney. Each of them are: = Dominggas dos=20 Santos Muzinho (for the Herman Sedyono, Et.al. case), Joao = Perreira and=20 Emilio Bareto (for the case of Timbul Silaen) .

There are three witnesses who are victims, or family members of = the=20 victim who cancelled their appearance. They are Armendo de Deus = Granan=20 Deiro, Frez da Costa, and Tobias dos Santos (all for the case of = Herman=20 Sedyono, Et.al). According to the District Attorney RDTL, = Longhuinos=20 Monteiro, the absences of these witnesses are because there is no = security=20 guarantee for the witnesses .

The Head of the Legal Information of Kejagung RI, Barman Zahir = SH, in=20 his press conference on the 5th of June 2002, considers Monteiro's = reasons=20 are unfounded, because the government of Indonesia has = specifically=20 guaranteed their safety, not only in the courtroom, but also at = their=20 accommodation and transportation.

Other than physical protection, the principles regarding a fair = justice=20 and the requirement of psychological protection is needed. Article = 34=20 verse 1 Act. No. 26/2000, states that: "Every victim and witness = within=20 the gross Human Rights Violations have the right to all physical = and=20 mental protection from threats, disturbance, terror, and other = violence=20 from any other parties." Unfortunately, the government's = regulations no.=20 2/2002, determining the Witness and Victims Protection is not = equipped=20 with the regulations regarding strict safety procedures.

Indeed, physical attacks as well as direct threats has not = happened=20 yet, or experienced by any of the victims who are willing to give = their=20 testimony. Even so, the witnesses will have difficulties in = providing=20 their testimony freely, if the visitors in the courtroom are = allowed to=20 scream and ridicule, while outside the courtroom there are groups = that=20 continuously demonstrating. The Indonesian Armed Forces Commander = and a=20 series of elite leaders initially attended the trial for gross = Human=20 Rights Violations in East Timor. Then, in every trial, there are = always=20 pro-integration groups and visitors that either cheer or ridicule = the=20 witness. Such a condition can be categorized as a form of = pressure. These=20 conditions should have been called to order by the court = authorities.=20 There should be a real effort from the authority of the courtroom = to=20 provide peace during the justice process.

Other problems related with this security are the questions the = Legal=20 Counsellor puts forward that tend to corner the witness and threat = is=20 implicated. In such events, the panel of judges have warned the = legal=20 counsellor several times. In one of the examinations, even the = witness can=20 perceptibly seen to be tensed and depressed, unwilling to face the = legal=20 counsellor . Furthermore, even unwilling to answer the greater = part of a=20 question that comes from one of the legal advisors, while other = questions=20 coming from different counsellors can be answered flawlessly.

Other than the security problem of the witnesses, there is = another=20 difficult problem of transporting victims or family members of = victims to=20 come and testify, as funds were not available. The Human Rights = Court is=20 not equipped with funding support to perform this procedure, while = the UN,=20 through UNMISET (United Nations Mission of Support in East Timor) = could=20 not provide any funds as it may be a precedent for cases in the = future.=20

Also, there have been no clear extradicting agreements between = the=20 overnment of Indonesia and East Timor. Throughout the process in = relation,=20 extradicting is done through a memorandum of understanding (MOU) = between=20 the Foreign Department of the republic of Indonesia and UNTAET. = Presently,=20 East timor is no longer in the hands of UNTAET, but has formed = their own=20 government with the support of the UN through UNMISET, and there = are no=20 longer any explanations regarding the authority handover of the=20 extradicting problem from UNTAET, based on the MOU mentioned to = the=20 government of East Timor as well as UNMISET.

3.2. The right to an interpreter

In the trial on 28th May 2002, for the case of Herman Sedyono, = Et.Al,=20 the witness Dominggas dos Santos Mauzinho was called to the stand. = Towards=20 this witness, the General Attorney informed that the witness could = not=20 really speak the Indonesian language very well, so an interpreter = of the=20 language Tetun, from East Timor was provided.

The panel of judges headed by Cicut Sutiarso refused the = interpreter=20 provided with a reason that there are no letters accompanying this = interpreter and the certificate for an interpreter. The panel of = judges=20 finally decided to use the Indonesian Language and the interpreter = is used=20 only when it's necessary, without a clear criteria or limitations=20 regarding the scale of necessity.

Until the end of the examination of that witness, the language = used was=20 the Indonesian Language. This causes the witness to stumble over = his words=20 and speak unclearly when questioned with a speedy intonation and=20 unfamiliar terms. Therefore, the judges, Attorney General and the = Legal=20 Counsellor had to repeat the questions often. The witness himself, = in most=20 opportunities was finally conditioned to answer only yes-no = questions due=20 to the limitation in language. This condition automatically = reduces the=20 exploratory depth of the witness'.

The reason behind the panel of judges rejection of the = assistance of an=20 interpreter, was not very appropriate, keeping in mind that Tetun = is a=20 language not normally used as a standard language for = communication in=20 international relationships. Therefore, the requirements for a = certified=20 interpreter could not be fulfilled. On the contrary, the right of = a person=20 to be assisted by an interpreter when one is not able to = understand or=20 speak in a language used in a courtroom is one of the guarantees = of a fair=20 trial, as noted in article 14 verse 3 (f) ICCPR (International = Covenant=20 for Civil and Political Rights) . Asides from this, in the = regulations=20 concerning witnesses, according to the Criminal Conduct article = 177, the=20 panel of judges may appoint an interpreter if the witness or = defendant do=20 not understand the Indonesian language.

3.3. Court Calendar

In the trial on 29th may 2002, in the case of Herman Sedyono, = Et.al,=20 the panel of judges headed by Cicut Sutiarso gave an ultimatum to = the=20 Attorney General to produce all his witnesses who were victims = that are=20 able to come to end the process of examination in one week's time. =

The judge's order is a consequence of article 31 Act no. 26 of = 2000=20 that states that the case for gross human rights violations is = limited for=20 a maximum of 180 days, to be examined, and settled by the Human = Rights=20 Court since the case was brought to trial. The order of the panel = of=20 judges will bring about another bout of consequences that is the=20 "contradiction" of the principle of justice and the principle of = absolute=20 law.

Seeing the difficulty of the Attorney general in producing his=20 witnesses, there is a great chance that all the necessary = witnesses who=20 are victims are most likely not able to be examined in one week. = This=20 results in a very unbproportional composition of witnesses. And a = fair=20 judicial system will most likely not happen.

In the meanwhile, if for the sake of the principle of = proportionality=20 of witnesses in court is to be fulfilled, a long range of time is = needed=20 for the Attorney general to produce all the witnesses to testify, = and=20 thus, for all the witnesses of the defendant later on. Therefore, = the=20 process of the court will take a longer time. And if within 180 = days since=20 the case is brought to trial, and the panel of judges does not = make a=20 decision, then it is not impossible for the trial to be cancelled = "in the=20 name of law".

However, particularly for the case of Herman Sedyono, Et.al, = the panel=20 of judges are still giving one more chance for the Attorney = General to=20 produce witnesses who are victims, even if the court calender made = by the=20 judge has been exceeded.


Jakarta, 13 June 2002.


Table: Witnesses that have testified until the end of May=20 2002
Defendant No Witness Position Date of Examination=20 Information
Abilio Jose Osorio Soares 1 M .Nur Muis Former = Danrem 164=20 WD 17/4/ 2002
2 Herman Sedyono Former Regent Covalima 17 = /4/2002=20 Defendant for Case File III
3 Suprapto Tarman Former Regent = Ailio 18/4/=20 2002
4 Tono Suratman Former Danrem 164 WD 18/4/ 2002
5 = Timbul=20 Silaen Former Head of the District Police East Timor 24/4/2002 = Defendant=20 for Case File II
6 Domingus Soares Former Regent Dilli = 25/4/2002
7=20 Mudjiono Former Vice Commander Korem East timor 25/4/2002
8 = Adam=20 Damiri Pangdam IV Udayana 08/5/2002 Next Defendant
9 Leoneto = Martin=20 Former Regent Liquisa 23/5/2002
10 Mathius Maia Administrative = Mayor=20 of Dilli 08/5/2002
11 Joao Fereira Farmer 30/5/2002 Victims = who become=20 Witnesses
12 Emilio Bareto Former BAPEDDA Liquisa Employee = 30/5/2002=20 Victims who become Witnesses
13 Eurico Gutteres Vice Commander = PPI=20 30/5/2002 Next Defendant
Timbul Silaen 1 Wiranto Former=20 Menhankam/Pangab 4/4/ 2002
2 Adam Rahmat Damiri Former Pangdam = Udayana=20 11/4/ 2002 Defendant for East Timor's case
3 Mohammad Noer Muis = 11/4/=20 2002
4 Joseph Josua Sitompul Former Polri Kapusdiklat Polda = East Timor=20 18/4/2002
5 Leo Pardede Former Kapusdalops Polda East Timor = 1997-1999=20 18/4/2002
6 Muafi Sahudji Former Wakapolda East Timor = 1997-1999 25/4/=20 2002
7 Adio Salova Former Liquisa Kapolres 02/5/2002
8 = Hulman=20 Gultom Kapolres Dilli 02/5/2002 Field Perpetrator
9 Carlo Brigs = Tewu=20 Sekditserse Polda Tim Tim 13/5/2002
10 Gatot Subyaktoro = Kapolres Suai=20 16/5/2002 Defendant for Case File III
11. Leoneto Martin Former = Regent=20 Liquisa 23/5/2002 Defendant for the next case
12 Joao Fereira = Farmer=20 30/5/2002 Victims who become Witnesses
13 Emelio Bareto Former = BAPEDDA,=20 Liquisa Employee 30/5/2002 Victims who become Witnesses
Herman = Sedyono=20 Et.al. 1 Sony Iskandar Former Driver Kasdim Acmad yamsuddin = (defendant IV)=20 23/4/2002
2 I Wayan Suka Antara Suai State Owned Electrical = Company=20 (PLN) Guard ordered by Dandim 23/4/ 2002
3 Sulistyono Former = Truck=20 Driver at Kodim 1635 Suai 23/4/ 2002
4 Jehezkiel Berek Former=20 Wakapolres Covalima 30/4/2002
5 Jacobus Tanamal Former = Kapusdalop=20 Polres Covalima 30/4/ 2002
6 Yopi Lekatompessy Former Kapolsek = Kota=20 Covalima 30 /4/2002
7 Julius Basa Bae Former Kapolpos Metamau=20 07/5/2002
8 Sudharminto Former Brimob NTT 07/5/2002
9 = Pranoto=20 Former Pirincipal of SLTPN I Suai 13/5/2002
10 Dominggas D S = Mauzinho=20 Citizen 28/5/2002 Victims who become witnesses
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