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ELSAM Report on Indonesian Ad Hoc Trials = for East=20 Timor
Report No. 4




AD = HOC HUMAN=20 RIGHT COURT FOR EAST TIMOR IS BELOW STANDARD
Preliminary = Conclusive=20 Report
Case of Timbul Silaen, Abilio Soares dan Herman = Sediyono and=20 partners.=20


INTRODUCTION

East Timor, which used to be the Republic of Indonesia's 27th = province,=20 has become a new nation. For Indonesia, the establishment of Timor = Lorosae=20 as an independent state has brought a new inspiration, namely in = the form=20 of Ad Hoc Human Right Court which was initiated due to the = suggestion that=20 there had been crime against humanity in Timor Lorosae before, = during and=20 after the referendum.

The court, which has been held for the past four months at the = District=20 Court of Central Jakarta, can be regarded as an inspiration since = it has=20 become a legal landmark and the initial step in the process of = justice for=20 those who have suffered from the state apparatus' misdemeanors. It = would=20 also exhibit to what extent Indonesia can promote and protect = human=20 rights.

The Ad Hoc Human Right in essence would examine all the = assumptions of=20 and also determine the responsible parties for the chain of crimes = against=20 humanity in Timor Lorosae before, during and after the referendum = in 1999.=20

This report would focus upon the formulation of the element of = crimes=20 upon the crime against humanity as contained in the Act No.26/2000 = into=20 the charges, and also how the element of crimes have been = elaborated by=20 both the prosecutors and the judges in the (due process of law). =


I. LEGAL PROVISIONS THAT BECOMES THE BASIC OF THE COURT =

The legal instrument that becomes the basic in the = establishment of the=20 ad hoc court is the Law No.26 year 2000 on Human Right Court. Thus = this=20 instrument holds an important role, since its weaknesses, = especially=20 conceptual ones, would affect its implementation.

Article 43 verse 2 of the Act regulates that Ad Hoc Human Right = Courts=20 would be established through a Presidential Decree. In the case of = the ad=20 hoc court for East Timor, there were two decrees needed, = Presidential=20 Decree No. 53 year 2001 and Presidential Decree No.96 year 2001, = since the=20 first one had been viewed as having a wide jurisdictional area (no = specific parameter on period and area). The parameter is provided = in the=20 later, which limited the jurisdiction to three areas namely = Liquica, Dili,=20 and Suai, and the period to between April and September 1999. This = has the=20 impact upon the process in proving the systematic and widespread = element=20 in the cases of Human Right violations in East Timor during pre = and post=20 referendum period.

Act No.26/2000, especially regarding the definitions of the = concepts of=20 crimes against humanity and command responsibility adopts the = definitions=20 contained in Rome Statute for International Criminal Court. = However the=20 adoptions are conducted with several distortions, which = theoretically=20 weaken the concept of crime against humanity which becomes the = foundation=20 for the Human Right Court process.

a. Concept of Crime Against Humanity

In the Ad Hoc Human Right Court, the indictment for the = perpetrators is=20 (crime against humanity) as formulized in the Article 9 Law No.26 = year=20 2000:

"Crime against humanity as referred to in Article 7 point b is = an=20 action conducted as a part of an attack that is widespread or = systematic=20 which is known that the attack is directly against civilian = community, =85"=20

The formulation above has the basic weakness namely: one, = unclear=20 definition of crime against humanity on three important elements:=20 widespread, systematic and intention. This inclarity opens the = room for=20 various interpretation in the court. Thus the procedure and = process of=20 proof for the perpetrators indicted by the same Articles of the = act become=20 difficult and the indictment itself become ambiguous.

Second, there is a problem occurring in the wrong translation = in the=20 Act, which is the phrase directed against any civilian population = (Rome=20 Statutes, Article 7), which should be translated as ditujukan = kepada=20 populasi sipil, but has been actually translated into: ditujukan = secara=20 langsung terhadap penduduk sipil (directly against civilian = community).=20 The word "directly" can imply that only the direct perpetrators = can be=20 indicted with this provision. The word "civilian community" = instead of=20 "civilian population" has limited the subject of the law by using = the=20 boundary of areas, and this has significantly limited the = potential=20 targets of the crime against humanity victims to only the citizens = of the=20 state where the crime occurs.

Another distortion in translating the concept in classifying = actions=20 that can be defined as crime against humanity is the translation = of the=20 word "persecution" into "penganiayaan" in Law No.26 year 2000. = This has=20 made it difficult for the prosecutor in proving its case, since = there is=20 no detailed definition of the word. Thus "penganiayaan" has been=20 interpreted as defined in the Indonesian Criminal Code, whereas=20 Persecution has wider meaning, which is any discriminative action = that=20 causes mental and/or physical detriments. Thus, it is not narrowly = limited=20 to a direct action upon one's physique. By using the word = "penganiayaan"=20 the action of terror and intimidation towards a person or a = particular=20 civilian group based on a political belief cannot be included in = the=20 category and the prosecutor has to prove that there has been a = physical=20 action conducted and not only the effect that has occurred, = whereas=20 factually, no one can disprove the effect of the crime against = humanity in=20 East Timor before and after the referendum.

b. Command Responsibility

The Criminal provision in the Act no.26/2000 has also included = (command=20 responsibility). However, Article 42 verse 1 of the Act has = contained=20 several weaknesses with major legal consequences. The definition = of=20 command responsibility in the Act is elaborated as follows:

"military commander or someone who effectively acts as a = military=20 commander should/could be held accountable on a criminal action = under the=20 jurisdiction of Human Right Court that is conducted by the troop = under his=20 or her effective command and control, =85"

The usage of the word "dapat" (should/could) and not "akan" or = "harus"=20 (shall), implicitly stating that the command responsibility in = gross=20 violation of human right cases regulated in the Act is not = something=20 compulsory nor automatic. This Article reaffirms the = interpretation of=20 "crime against humanity" as contained in Article 9 as directed to = direct=20 perpetrators. Thus the prosecutor should show and prove the = urgency to try=20 the commanders and not only the direct perpetrators.

Further more, Article 42 verse 1 (a) conditions the commanders = to=20 "should have known that the troops are conducting or has just = conducted=20 gross violation of human rights" Whereas the source provision in = the Rome=20 Statutes, which is Article 28 verse 1 (a) clearly explains that = the=20 military commander should have "known that the troops conduct or = is about=20 to conduct a crime=85"

This distortion is neglecting the responsibility of the person = in=20 command to prevent a crime. Though this neglect is corrected in = Article 42=20 verse 1 (b) with the phrase "the military commander failed to = conduct the=20 proper and required action under his or her jurisdiction in = preventing or=20 ceasing the action =85" however there is no strict definition and = parameter=20 on what is considered as "proper" and "required" action that = should be=20 conducted by the commander. This Article is also implying that the = court=20 has to focus the attention to the process, whether or not the = action is=20 proper, whether it is included in obligation of conduct, and = automatically=20 neglecting the fact whether the action conducted by the person in = command=20 successfully prevent or halt the crime (obligation of result).

c. Inappropriate Law of Procedure

Act No.26 year 2000 does not specifically include all the = aspects that=20 is needed in ensuring (fair trial). Although it is the basis of a = court=20 that process extra ordinary crimes, the Act is not equipped with = an=20 extra-ordinary criminal procedural law, and actually explicitly = referring=20 to the common procedural of criminal law (KUHAP), and diminish the = chance=20 of using other alternative procedural law. This is a shame, = because for a=20 court of extra ordinary crimes, an extra ordinary procedural law = is=20 required, especially because the existing criminal procedural law = is=20 inappropriate for the Human Right court, for example in the = verification=20 section. In KUHAP it is regulated that acceptable means of = verification=20 includes (1) testimony, (2) expert statement, (3) letter, (4) hard = evidence, and (5) defendant's statement. These five would not be = adequate=20 in proving gross violation of human rights, since in proving it = the=20 prosecutor would need a wider parameter.


II. SUBSTANCE AND QUALITY OF INDICTMENT

The indictment is an important base in a criminal procedure, = because=20 based on what contained in it the judges process a case, meaning = it=20 becomes the parameter on to what extent the judges can probe and = pass a=20 verdict upon a case. The indictment should be based upon = investigation=20 based on the witnesses' testimony and other evidence, including = expert=20 opinion or the coroner's report.

The tree indictments that has been passed so far substantially = show=20 that the defendants are being indicted by these points: First, on = crime=20 against humanity (Article 7 Law No.26/2000), in form of killings = and=20 persecution (Article 9 Act 26/ 2000) as a part of widespread or = systematic=20 attack targeting on civilians.

Second is related to command responsibility of the defendants = both from=20 military and civilians background, due to the background that they = as=20 commanders failed to provide effective control in correct manner = (Article=20 42 Law No.26/2000).

However, the prosecutor failed to convince that the = manslaughter and=20 the persecution can fall into the definition of widespread due to = the=20 failure of showing the impact of the incidents factually, thought = the=20 evidences are a lot and out in the open. The indictments cannot = even show=20 the geographical correlation between the events, and they do not = prove the=20 systematic element. This is so because the prosecutor cannot = describe what=20 is meant by "a chain of actions upon civilian population as an = extension=20 of a power holder's policy or the policy of an organization". Thus = in all=20 the indictments we would not be able to get the comprehensive = overview=20 that the crimes were indeed systematic or widespread.

The low quality of the indictments has a negative impact upon = the=20 prosecutor's and judges' elaboration in the witness = cross-examination.=20


III. PROCESS AND QUALITY OF WITNESSES' TESTIMONY

Witnesses' testimony is a crucial evidence in strengthening an=20 indictment. Thus a witness should be relevant to the case, has = knowledge=20 or directly witness the incident. Thus in the context of crime = against=20 humanity, in proving both systematic an widespread, those directly = related=20 in the making of policies and implementing the policies should be = called=20 to testify.

a. Proving the element of crime in witness cross-examination=20
Witness cross-examination firstly is based on the attempt to = obtain an=20 explanation on the legal fact related to the points in the = indictment.=20 This attempt is done through questions posed to the witnesses on = the=20 court. The questions should be aimed in locating the element of = crime from=20 the indictment, in this case the crimes against humanity and = command=20 responsibility. It is expected that the knowledge of the witnesses = on the=20 incident would assist in locating the needed legal fact in finding = the=20 truth on the trial. This is especially important due to the weak=20 indictment presented by the prosecutor, making the witness=20 cross-examination the pillar in proving the elements of crime in = this=20 case. Moreover, the provision contained in the criminal procedural = law has=20 emphasized on the importance of the courts' facts in witness=20 cross-examination. The witness testimony fit to be used is the one = given=20 in the court.

The witness examination process is colored by the elimination = of some=20 crucial content of Investigation Procedural Note (would be = referred to as=20 BAP) done by the witnesses. In the case of Herman Sedyono and = friends,=20 almost all of the witnesses have withdrawn their testimonies as = contained=20 in the BAP regarding several important points such as the = occurrence of=20 attack, coordinative meeting between government and military = apparatus,=20 the sound of gun and the formation of civilian security forces. = The excuse=20 of the withdrawals range from external pressure up to that the = given=20 testimony was merely the witnesses' opinion and thus not fit to be = brought=20 up in the testimony upon the court. Upon this issue neither the = judges nor=20 the prosecutor pursue in the cross-examination session of the = trial.=20 Similarly this also has occurred in the case of Abilio andTimbul = Silaen.=20

Another example would be that in the cross-examination of Adam = Damiri=20 as a witness, the existence of militia was denied and in the same = session,=20 the witness has also withdrawn his statement that PAM SWAKARSA is = a=20 transformation of Pejuang Pro Integrasi (Pro Integration Warrior) =

Thus the witnesses' testimony has been virtually useless in=20 strengthening the indictment thus the prosecutor has been often = caught off=20 balance when trying to probe deeper into the answers, opinion or = statement=20 given by the witnesses previously. Whereas the prosecutor and = judges=20 should have probed deeper to identify the chain of command = existing in the=20 period of before, during and after the referendum. In the context = of chain=20 of command, elaborations upon the existence and positions of units = at the=20 time, the person in command of intelligence operations and the = person in=20 charge of the central operation were not inquired. Thus the=20 witness-examination session often became the campaign stage for = the=20 defendants or their media in trying to cover the other defendant. =

Whereas the victims brought from East Timor as victim-witnesses = were=20 cross-checked later. There were only 3 victims from different = incidents,=20 one of them from Suai, namely Domiggas dos Santos Mauzinho for the = case of=20 Herman Sudiyono. The other two were Emilio Bareto and Joao = Perreira for=20 the case of Timbul Silaen and both also were presented as = witnesses in the=20 case of Abilio Soares. In the incident in Suai the indictment = contained=20 manslaughter, but to the witness there was no question posed by = the judges=20 and the prosecutor how it had happened. The witness even remained=20 undefended when subjected to the counselors's badgering, causing = the=20 witness, who was not fluent in Indonesian, became badly flustered. =

In general the whole process and the quality of the witnesses'=20 testimony has done nothing in strengthening the indictment = material which=20 is manslaughter and persecution and furthermore cannot be used in = proving=20 crime against humanity that is systematic and widespread. Also, = the claim=20 that there was "neglect of information and the appropriate actions = failed=20 to be taken" has remained unproven. Thus the whole testimony only=20 strengthen the defendant's position and prove that what had = happened in=20 East Timor before and after the referendum happened spontaneously = as the=20 reaction of the masses who had been disappointed by the = malpractices in=20 the referendum.

B. Witnesses examination procedures
As for witnesses = investigation=20 procedures monitoring, observer found some basic errors which are=20 inappropriate with the standard norms of witnesses investigation = according=20 to the procedural law which directly connected with a running = court=20 administration system for ad hoc Human Rights Court.

Witnesses who should not go into the court room for they will = be=20 examined as witness, always go into the court to see the = examination of=20 the other witness, or sit outside the court room while hearing the = process=20 of other witness investigation process.

Human Rights court in Central Jakarta's' court room doesn't = have a=20 specific waiting room for witness which guarded by officer, so = that the=20 witness can't enter the court room or at least prohibit them to = listen to=20 the previous investigation process. This shows that Human Rights = court=20 doesn't have such a mechanism that limit persons who qualified as = a=20 persons who cant enter the room (listening to the process) to be=20 prohibited because the person is a witness.

Base on the order regulation for witness, witness who should be = examined first is the witness who come from victims' party = (Article 160=20 verse 1 sub b KUHAP). But, until the end of April 2002, witnesses = who have=20 been examined none came from the victim party. The present = witnesses are=20 other defendant from different cases of Human Rights violation in = East=20 Timor, or they who are related with the defendant both leader or = lower=20 rank. In some observation of witness examination in the court, the = contrary happened, where witnesses who have higher rank in the = ABRI/POLRI=20 structures examined in the beginning of the process.

Witnesses proposed by the prosecutor are also more to a de = charge=20 (support defendant rather than against them-supposedly proposed by = defendant's Lawyer) rather than a charge witnesses (against = defendant).=20 For example: a witness said that no one TNI/Polri element involved = in the=20 "turmoil" or a witness who said that the defendants has done = prevention or=20 investigation acts so that the turmoil can be localize etc.

Base on the observation of the trial process, especially in the = witnesses investigation in the trial, especially related with = victims=20 witnesses, some special attention should be made. There are at = least three=20 major points related with the witnesses investigation procedures, = namely:=20 (1) security guarantee (2) witness rights during the trial (3) = trial=20 schedule.

Until the end of June 2002, from whole 31 witnesses, there are = only=20 three victims witnesses/victims family testified before the trial. = They=20 are: Dominggas dos Santos Muzinho (Herman Sedyono and friends' = case), Joao=20 Perreira and Emilio Bareto (Timbul Silaens' case) and Abilio = Soares. It is=20 very far from the ideal proportion, considering the vast amount of = victims=20 claimed by the prosecutor. The Indonesian prosecutors' mistake to = bring=20 other victims witnesses made the witness composition become = imbalanced to=20 be called a fair witnessing process.

The inability to bring the victim witnesses equal with other = parties=20 actually required the judges' sense to rule necessary actions, = such as=20 replace the absentees with reading of the BAP (Investigation = Procedural=20 Note) or even to find innovations that can help the case = investigation=20 process.

In the witnesses investigation process for Abilios' case, named = Emilio=20 Bareto and Joao Perreira, prosecutor did nothing in the summoning = of the=20 witness as indicated in the procedural law. Two witnesses, Emilio = Bareto=20 and Joao Perreira, which happened to be present at the court to = testify=20 for Timbul Silaens' case, suddenly summoned by the prosecutor of = Abilio=20 Soares' case without any previous arrangement and preparation. The = investigation process conducted in turn for both of the cases = (Timbul=20 Silaen and Abilio Soares), when Emilio Baret investigate in the = court for=20 Timbul Silaens' case, Joao Perreira investigate in Abilios' trial = and so=20 on.

C. Security guarantee for victims witnesses
On the process = of=20 witnesses investigation process in this case victims testimony, = from those=20 three cases, it has been planned to have 14 victims witnesses = which would=20 be brought by the prosecutor cooperate with UNTAET, with = specification as=20 follows:
Case Planned Investigates Absent excuse
Timbul = Silaen 10=20 persons:1. Emilio Bareto2. Joao Fareira3. Jose Menez Soares4. joao = Bernandido5. Maria Fereira Soares6. Nelio Mesquita da Costa Rego7. = Vicente=20 AG Sousa8. Jose Gaetano Da Costa9. Don Bosco Salganya10. = Marecelino=20 Martins Ximenez 2 Persons1. Joao Fareira2. Emilio Bareto Security=20 problems:5 persons (from East Timor) and unknown address: 3 = persons (from=20 NTT)
Herman S, and friends 4 Persons1. Dominggos dos Santos = Mauzinho2.=20 Fres Da Costa3. Tobias Dos Santos4. Armando De Deus 1 person1. = Dominggos=20 Dos Santos Mauzinho Resigned for security reason
Abilio Soares = Victims=20 has not explained by the prosecutor. 2 persons (taken from other = cases'=20 witnesses: Timbul Silaen case):1. Emelio Bareto2. Joao Fereira Not = clear

The description above has shown us that the absence of the = victims'=20 witnesses for all cases mainly because security problems which = include=20 physical and physiological security. The issues confirmed by the=20 explanatory letter by RDTL Prosecutor, Longhuinos Monteiro, which = read by=20 prosecutor before the court in June 5th, 2002, is that because = there are=20 no security guarantee for victim witnesses. Even though in the=20 investigation some witnesses who has been brought to the court on = May=20 30th, 2002, security has prepared on in the form of one platoon of = regional police (Polda) and one platoon of Polris' pioneer troop, = still=20 most of the witnesses are afraid to be investigated in = Indonesia.

Beside physical security, fair trial principles requests for a=20 physiological protection. Beside that, Article 34 verse 1 ACT No. = 25,=20 2000, also stipulated that: "Every victim and witness in Gross = Human=20 Rights Violations is entitled to physical and physiological = protection=20 from intimidation, threat, terror, and violence from all parties". = Unfortunately PP No.2, 2002 which regulated Witness and Victim = Protection=20 is not equipped with prevailing security procedures.

Even though there is no direct physical attack or threat has = been=20 experienced by the victims witnesses who are willing to testify.,=20 witnesses will found it difficult to testify freely with shouting = and=20 agitating observers, while outside the court there are groups who = always=20 stage demonstration. In the beginning of the trials regarding = gross human=20 rights violations in East Timor court were attended by TNI chief = officer=20 and other high rank officer. Then, every trial was always attended = by=20 pro-integration groups and observers who always yelled at the = witness.=20 Such a condition can be categorized as a form of pressure, and the = bailiff=20 should have been instructed to provide order in the process.

Problems relating with the security sometimes emerged from the=20 Prosecutors who may at times provoke and tend to threat the = witness. On=20 several occasions the judges have warned the Prosecutor. In one = witness=20 cross-check section, the witness became tensed and pressed, unable = to face=20 the Prosecutor and even rejected to answer most of the questions = coming=20 from the Prosecutor.

Beside security problem for the witness, financial constraint = is what=20 made the court unable to present victims' witnesses or their = families.=20 Human rights court is not equipped with sufficient money to do = such=20 procedures, while United Nation through UNMISET (UNMISET (United = Nations=20 Mission of Support in East Timor) unable to give financial aid = since such=20 thing can become bad precedent for future case.

Furthermore, there is no clear extradition agreement between = Indonesian=20 and East Timor government. Before, the process related with = extradition=20 conducted based on memorandum of understanding (MoU) between = Department of=20 Foreign Affair with UNTAET. Recently, East Timor is no longer = governed by=20 UNTAET but has formed their own government with support from UN = through=20 UNMISET, and there are questions about authority transfer to East = Timor or=20 UNMISET.

Related with those security problems, actually the East = Timorese=20 Prosecutor office has try give input to the process of victims' = witnesses=20 investigation which can't be brought to the court in Indonesia, = through=20 teleconference or by video recording or audio. But the offer has = not been=20 responsed by Indonesian party.

D. Witness Right to Interpreter
Interpreter is an important = element=20 in the witness investigation process especially victims' witness = who came=20 from East Timor who do not perfectly understand Indonesian = language, the=20 language that used in the court. That is the reason why this Human = Rights=20 court should be equipped with interpreter who understand both = Indonesian=20 and Tetun.

In the 28th May, 2002, in the trial for Herman Sedyono and = friends'=20 case, Dominggos dos Santos Mauzinho was brought to the court to = testify.=20 The prosecutor informed that the witness could not understand = Indonesian=20 language too well, so an Indonesian-Tetun interpreter was in = order.

But in the reality, there has been no persuasive attempt to = arrange an=20 interpreter by Human Rights Court ad hoc in this trial. UNMISET = has=20 initiated this by bringing Indonesian-Tetun Interpreteur from East = Timor.=20 This good will then can not be implemented because the interpreter = was=20 overruled by the judge

Judge council lead by Cicut Sutiarso rejected the interpreter = with the=20 reason that there was no letter and certificate as an interpreter. = The=20 judge council then finally decided to use Indonesian and would = only use=20 interpreter if one is considered as necessary, without any clear = criteria=20 and limitation about the scale of necessity.

Until the end of witnesses investigation process, the language = that=20 been used is Indonesian. This caused the witnesses can not = response=20 quickly and become stuttering when asked with fast intonation and=20 unfamiliar terms. Thus, judges, prosecutor or Prosecutor always = repeated=20 the questions. Even the witness, on the most occasion had to = positioned in=20 the "yes" or "no" question because their limitation in Indonesian=20 language. This condition automatically reduced the testimony=20 exploration.

The reason of the rejection for interpreter assistance is not=20 appropriate, consider Tetun is an uncommon language used in=20 international-standard communication. So, the request for = certification is=20 an impossible request. When in fact, having an interpreter if they = don't=20 understand or unable to speak in a language used in the court is a = right=20 to ensure a fair trial, as provided in Article 14 verse 3 (f)=20 International Covenant for Civil and Politic Rights (ICCPR). = Alongside=20 with the statement is the regulation about witness according to = JUHAP=20 article 177, that a judge can appoint an interpreter if the = witness or=20 defendant does not understand Indonesian language.

e. Court Calendar of Witnesses Examination Process
In May = 19th,=20 2002, the court with Herman Sedyono and friends case, the judge = council=20 chair by Cicut Sutiarso gave an ultimatum to the prosecutor to = present all=20 the victims witnesses and ending the testimony process within a = week.

This judge order is a result of the consequence of article 31 = Act No.=20 26, 2000, which stated that in the case of gross human rights = violation,=20 the trial and the verdict should be done by the human right court = in at=20 most 180 days since the case was brought to the court. The order = off=20 course, will bring another consequence which is "contradiction" in = the=20 principles of justice.

Observing the problems of the prosecutor to present victims' = witness,=20 there is a big possibility that almost all of the victims = witnesses who=20 are needed to testify will be unable to testify within a week. As = the=20 result, composition of the testimony will go far from = proportional. Fair=20 and just trial will become more impossible.

Meanwhile, in order to reach testimony proportionality the = court needs=20 to rule for more time for the prosecutor to present all victims = witnesses=20 to testify, and the same should be applied to the Prosecutor of = the=20 defendant. However, this would extent the duration of the trial. = If until=20 the 180th day since the case transferred to the court there is = still no=20 verdict by the judge council, then it is possible that the court = would be=20 "terminated due to the procedure of law".


IV. THE EXPLORATION OF THE PROSECUTOR AND ASSEMBLY OF = JUDGES IN=20 CONVEYING MATERIAL PROOF AND EVIDENCE

In a trial the defendants, witnesses, and the counselors have = been=20 building the impression that what happened in East Timor was a = spontaneous=20 chaos as the effect of the disappointment upon UNAMET's = misconducts or the=20 provocation of the pro-liberation. This argument should not have = been=20 valid due to the fact that the government of Indonesia has = approved the=20 result of the referendum and has been given the opportunity to = forward=20 objections should there was any. Furthermore, the attacks had been = occurring since April 2002.

Unfortunately throughout the trial both the Judges and the = prosecutor=20 have been agreeing to or even trapped by the argumentation of the = witness=20 and the defendants., causing the part of the indictments regarding = manslaughter and persecution as part of the attacks disappeared = from the=20 prosecutor and judges' elaboration.

As the party responsible in proving the elements of its = indictment=20 until the end of April 2002, the prosecutor up to presently has = not been=20 able to present the witnesses expected to prove the elements, not = to=20 mention it has been weak in using or utilizing data as reference = or=20 comparison in cross-checking the witnesses' testimony such as in = the=20 instances of:

On the Cause of the "chaos"
The prosecutor has failed in = probing=20 deeper on the cause of the so-called "chaos", accepting without = challenge=20 the explanation that the chaos was over the disatisfaction towards = the=20 result of the referendum and the judges have also failed in = pursuing the=20 subjects, to know whether the statement was fact or mere opinion = of the=20 witnesses.

The involment of TNI and Indonesian Police Force (Polri) in the = "chaos"
There was testimony on that throughout the period = between the=20 preparation and implementation of the referendum there were = members of TNI=20 or Polri who violated the rules and the Prosecutor did not probe = upon the=20 identity of those people. Id the witness did not know for sure, = then the=20 prosecutor should ask the source of the witness' knowledge.

The Assembly of Judges both in criminal or gross violation of = Human=20 Rights cases should act pro-actively in conveying the material = truth. They=20 also have the authority in rejecting or overulling witnesses or = knowledge=20 or statements irrelevant to the case, which they rarely practiced. = The=20 examples are as follows:

1. The statements of the witnesses presented by the Prosecutors = have=20 been derived from reports since they weren't directly involved in = the=20 human right violations indicted, thus these witnesses should have = been=20 deemed as irrelevant to be presented.
2. The Assembly of = Judges also=20 did not try to further convey the statements of the witnesses. The = existence of reports of the defendants to their superordinates is = not=20 questioned, there was no call kfrom the assembly for the proof of = such=20 reports may it be the verbal or written ones.
3. On the = management of=20 the defendants, the assembly of judges sgould have questioned = whether the=20 supporting evidence has been managed accordingly to the prevailing = rules=20 and legislation. For example, when the witness stated that the=20 investigation upon the culprit of the chaoss had been conducted, = then the=20 judges could inquire about who were being investigated, who were = the=20 victims, and what was the result of the investigation.


V. PROBLEMS REGARDING THE COURT ADMINISTRATION

A Competent, independent, and impartial trial equals to a fair = trial.=20 Thus good administration is the key to the good conduct of court.=20 Administration here includes all the working system of a court = such as the=20 supervision and control on the administrative staff, judges, = prosecutor,=20 preparation of budget, maintenance of the court's building, = registration,=20 case files, document publication etc.

a. Information Access on the Trials
During the process of = the trial=20 so far, beginning from April to June 2002, there has been no = mechanism or=20 rule of conduct related to information on the trial, may it be on = the=20 scheduling of the trial nor any information board.

The information related to the schedule can only be known when = the=20 observers come to the previous trial since the next schedule would = only be=20 determined then. And the scheduling of the trial is not = communicated=20 through any media such as board of information. And though there = is a=20 computer placed in the front of the building for information upon = the=20 trial, this computer is often displaced or in off condition.

The access to the information has become a very worrisome = problem when=20 there were 5 new cases processed without no available information = for the=20 public, thus the initial phases of the trial process for the new = cases=20 went by unnoticed.

Bearing in mind that this trial should be an open trial, the = public=20 should have access to information and documents related to the = processes=20 of the trial. However, this also has remained to be a problem, = since no=20 formal mechanism is set up in obtaining the documents.

b. The Room of The Trial
Initially the Ad Hoc Human Right = Court only=20 used one room on the 3rd floor, Room I for the trial processes of = the=20 cases of Herman Sedyono (Tuesday), and the other two cases (Timbul = Silaen=20 and Abilio) (Thursdays in turn) However, disorder started to occur = when=20 this mechanism was not possible anymore due to the amount of = witness. The=20 implication of this disorder is that sometimes there often was = squabbles=20 over a room for each case. On May 23, 2002 the disorder was so bad = that=20 the judges, counselors, prosecutors and members of the press did = not know=20 where their trial session was supposed to take place. Though it = may seem=20 trivial, such lack of management is really an obstruction to the = smooth=20 operation of the trial.


c. Order of The Court
There have been extensive amount = of=20 violations in this aspect. Though mainly conducted by the = observers of the=20 trial, sometimes the defendant and the counselors has also = trespassed the=20 regulations.

Regulation on the Order of the Court

Criminal procedural Law Regulation of the Head Judge
Article = 217=FC=20 Chair Judge lead the investigation and keep the code of conduct of = the=20 court.=FC Every instruction by the Chair Judge in order to keep = the code of=20 conduct in the court should be obey The observer/watcher are not = allowed=20 to bring firearm/weapon
Article 218=FC In the court room = everybody have=20 to show respect to the court.=FC Everybody whose behave improperly = and=20 violate code of conduct after given warning from chair judge will = expelled=20 from the court room.=FC In the case of violate the code of conduct = as been=20 Observer/Watcher are not allowed to wear jacket/coat and hat = except peci=20
Act 219=FC Anybody are not allowed to bring firearm, weapon, = explosives=20 or any substances that can endanger the court and whoever bring = such thing=20 must keep them in the designated location.=FC Without formal = letter, court=20 security officer can examine the people. =FC The regulation will = not=20 diminish the possibility of charge if the possession found.=20 Observer/watcher are not allowed to activate/turn on their hand = phone.=20
Act 232=FC Before the trial begin, clerk of court, prosecutor, = Prosecutor of law and observer/watcher are already take/sit in = their=20 designated place. =FC By the time the judge enter or leave the = court room=20 every participant must stand to honor.=FC During the process of = the trial,=20 everyone who goes in or out of the room of the trisl should pay = respect.=20 Observer must obey the code of conduct of the court.


Violations to Regulations on the Order of the Court

Violation Description Explanation
Carrying sharp object/ = weapon=20 Several TNI members are bearing knives on their persons. No = mechanism=20 provided by the court administration.
Handphone Often going off = in the=20 course of the trial Rarely reprimanded by the judges
Wearing = head cover=20 or jacket Several TNI members and other court observers Never = reprimanded=20 by the judges and the bailiff
Eating and drinking Often = happening,=20 sometimes the judges and the counselors are seen chewing gum. = Never=20 reprimanded by the judges
Creating noise Often conducted by the = observers, especially on the initial phases of the trial Rarely=20 reprimanded
Smoking Often conducted by observers sitting in the = back=20 row. Rarely reprimanded
Disrespectfully going in and out of the = room of=20 the trial Often happening Once was reprimanded
Reading = Newspaper Can be=20 viewed in several instances Rarely reprimanded


VI. SUMARY AND RECOMMENDATION

The Human Right Court is a very crucial process in promoting = human=20 rights and providing justice for the victims of gross violations = of human=20 rights. The success of the court would increase not only the = credibility=20 of the court but also Indonesia's legal system in general. It can = also=20 serve as one of the much needed proofs of TNI/ABRI public = accountability.=20 Failure in the process in the court in revealing the truth of the = legal=20 facts regarding what had happened in East Timor would also hinder = TNI/ABRI=20 in repairing its image especially in the field of upholding the = law and=20 protection towards human rights.

In general the Ad Hoc Human Right Court for the crime against = humanity=20 in East Timor has been conducted below standard, even when = measured with=20 the standards of a common criminal court. There seems to be = unwillingness=20 in fighting for or even maintaining seriousness from all the = elements of=20 the court in processing the cases, especially on the part of the=20 prosecutor, in proving whether the party (parties) was really = responsible=20 in the gross violations of human rights occurring in 1999.

The disturbing fact is that judging from the process that has = been=20 occurring, the prosecutor would have a slim chance in proving its = charges.=20 There is even an impression that the prosecutor is "sabotaging" = its case=20 for the benefit of the defendants through the weak indictments and = the=20 lame process in proving its case. Thus it is highly recommended = that the=20 Prosecutor General examine the prosecutors handling the cases in = the Ad=20 Hoc Court for East Timor.

Of course, from optimistic light, one can say that there is = enough room=20 for improvement since the Ad Hoc Court is not finished yet. In = this=20 context, the Human Right Court Monitoring Team of the Institute = for Policy=20 Research and Advocacy recommends:

In terms of indictment, the recommendations is aimed on several = issues,=20 namely:

- For future indictments, the Prosecutor General should focus = the=20 indictments specifically in the actions related to the element of = crimes=20 in crime against humanity, and not blindly imply the same focus in = every=20 indictment presented. Thus there should be significant revisions = conducted=20 upon future indictments. Future indictment should include the = elements of=20 crimes against humanity as pertained in the Act no. 26 verse 9, = which are=20 murder, persecution, rape, and forced displacement.

- For the sake of justice and the accountability process of the = gross=20 violation of human rights occurring, in presenting an indictment = in a=20 trial process, the Prosecutor General should consider the levels = of=20 substantiation of the case as a whole. In proving the systematic = aspect in=20 the gross violations of Human Rights in East Timor, those who are = indicted=20 for actions by commission should be put forward first before those = who are=20 indicted for violations by omission in accordance with the = accountability=20 level as superiors.

In the examination process in general, the Prosecutor General = the=20 Judges need to observe these points:

- The Prosecutors should seriously strive in presenting = witnesses that=20 enforce the indictments and not the other way around. Special = attention=20 should be given to victim-witnesses, especially on how significant = it is=20 to present a victim as a witness in a particular indictment, since = if the=20 indictment is command responsibility, then the testimony would not = be=20 significant, whereas if it is to prove the defendant as the direct = perpetrator of a gross violation of human rights, then the = presence of=20 victims as witnesses would be very essential indeed, and this = should be=20 prioritized.

- Bearing in mind that this particular Ad Hoc Human Right Court = is=20 Indonesia's legal system's first experience in dealing with past = human=20 right violation, the Judges should enrich the trial process by = intensively=20 use the international law principles as their reference of = judgment. The=20 Judges also ought to be more firm in regulating the process of the = trials.=20

- The judges should show boldness in creating legal initiatives = needed,=20 especially in the process of witness examination. The limitations = of the=20 Code of Criminal Procedural Law. used as the basis for the = procedural of=20 the ad hoc court require the both the judges and the prosecutors = to have=20 the initiative in fully implementing the Government Regulation no. = 2/2002=20 on the Witness and Victim protection, especially regarding = significant=20 matters not yet accommodated by our Code of Criminal Procedural = Law.


Issued in Jakarta, July 4, 2002

Monitoring Team for Ad Hoc Human Right Court for the Human = Right Gross=20 Violation in East Timor
The Institute for Policy Research and = Advocacy=20 (ELSAM)
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