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------=_NextPart_001_0035_01C457BF.3C4680C0-- ------=_NextPart_000_0032_01C457BF.3C4680C0 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Content-Location: http://socrates.berkeley.edu/~warcrime/East_Timor_and_Indonesia/Reports/ELSAM7.htm ELSAM report 7
ELSAM Report on Indonesian Ad Hoc Trials = for East=20 Timor
Report No. 7




Progress=20 Report VII
East Timor's Ad Hoc Human Right Trial*
I. = Administration=20 problems related with Judicial resources (Judge)=20

International standards, regarding to independent trial demands = competent party to provide adequate resources so that the court = can=20 perform their functions properly .
In monitoring process, ELSAM = found a=20 number of problems related to judicial resource of the ad hoc = panel of=20 judges for human right trial. These problems have the potential of = raising=20 direct effect in the fall of competent trial's principles. During = the=20 monitoring, there are a number of problems identified that are = related to=20 each other: lack of judge quantity, lack of judge staffs, the = insufficient=20 financial support for judges, lack of infrastructure support = (office,=20 computer, notebook, printer, etc), delayed wages transfer, lack of = literature resources, references, library, internet, etc.
=B7 = Judges=20 Quantity
ELSAM noted that there are 23 judges in East Timor ad = hoc=20 trial for human right, who are assigned to processing 9 cases, and = every=20 case needs 5 judges. From the total of judges, there are 17 judges = serving=20 as member of panel in more than one case. This composition shows = that many=20 judges assigned to more than one case (look at Table)

List of judges assigned to more than one case
No Name Case = that were=20 investigated and Schedule
1 Andi Samsan Nganro =B7 Case of = Sujarwo (Chief=20 Judge): Tuesday=B7 Case of Tono Suratman (Chief judge): = Wednesday
2 Rocky=20 Panjaitan =B7 Case of Adam Damiri (Member judge): Tuesday=B7 Case = of Eurico=20 Guterres (Member judge): Thursday
3 Adriani Nurdin =B7 Case of = Hulman=20 Gultom (Chief judge): Wednesday=B7 Case of Noer Muis (Chief = judge):=20 Wednesday
4 Cicut Sutiarso =B7 Case of Asep Kuswani, Adios = Salova,=20 Leonito Martins (Chief judge): Wednesday=B7 Case of Yayat Sudrajat = (Chief=20 judge): Thursday
5 Rudi M Rizky =B7 Case of Adam Damiri (Member = judge):=20 Tuesday=B7 Case of Hulman Gultom (Member judge): Wednesday=B7 Case = of Noer=20 Muis (Member judge): Wednesday=B7 Case of Eurico Guterres (Member = judge):=20 Wednesday
6 Kabul Supriadi =B7 Case of Sujarwo (Member judge): = Tuesday=B7=20 Case of Endar Prianto (Member judge): Monday=B7 Case of Tono = Suratman=20 (Member judge): Wednesday
7 Heru Sutanto =B7 Case of Sujarwo = (Member=20 judge): Tuesday=B7 Case of Tono Suratman (Member judge): = Wednesday
8=20 Amiruddin Abudaera =B7 Case of Sujarwo (Member judge): Tuesday=B7 = Case of=20 Endar Prianto (Member judge): Monday=B7 Case of Tono Suratman = (Member=20 judge): Wednesday
9 Winarno Yudho =B7 Case of Hulman Gultom = (Member=20 judge): Wednesday=B7 Case of Noer Muis (Member judge): = Wednesday=B7 Case of=20 Eurico Guterres (Member judge): Thursday
10 Komariah Emong =B7 = Case of=20 Adam Damiri (Member judge): Tuesday=B7 Case of Eurico Guterres = (Member=20 judge): Thursday
11 Abdurrahman =B7 Case of Asep Kuswani, Adios = Salova,=20 Leonito Martins (Member judge): Wednesday=B7 Case of Jajat = Sudrajat (Member=20 judge): Thursday
12 Muhammad Guntur Alfie =B7 Case of Asep = Kuswani,=20 Adios Salova, Leonito Martins (Member judge): Wednesday=B7 Case of = Jajat=20 Sudrajat (Member judge): Thursday
13 Rachmad Syafei =B7 Case of = Asep=20 Kuswani, Adios Salova, Leonito Martins (Member judge): = Wednesday=B7 Case of=20 Jajat Sudrajat (Member judge): Thursday
14 Sulaiman Hamid =B7 = Case of=20 Adam Damiri (Member judge): Tuesday=B7 Case of Endar Prianto = (Member judge):=20 Monday
15 Binsar Gultom =B7 Case of Sujarwo (Member judge): = Tuesday=B7 Case=20 of Tono Suratman (Member judge): Wednesday
16 Jalaluddin H =B7 = Case of=20 Asep Kuswani, Adios Salova, Leonito Martins (Member judge).=B7 = Case of Jajat=20 Sudrajat (Member judge): Thursday
17 Kalelong Bukit =B7 Case = of Hulman=20 Gultom (Member judge).=B7 Case of M Noer Muis (Member judge)

The implication of this condition is the burden for the judges = who are=20 involved in the trial of more than one case will have bigger = burden, not=20 to mention when the judges have to also serve in the ntrials of = other=20 cases in the common criminal and/or civil court .
The = consequences of=20 judges processing more than one case are: first, difficulty in = scheduling=20 the sessions, such as in several sessions have been cancelled = because the=20 chair judge of case A is still serving in the session of case B. = second,=20 the judges will have less time to focus on the case they = handle.
=B7=20 Administrative support (judge staffs)
In correlation with = technical=20 support, one thing monitored is the support of judge staffs for = judges in=20 performing their job. In this trial, it is found that number of = all judge=20 staffs is 14 persons. This number of staffs is divided to assist = the=20 judges in the 9 cases, meaning there are several of them who = assist the=20 judges of more than one case meanwhile the staffs weren't divided=20 properly. (Look at staffs Table).

List of Staffs in human right ad hoc Trial
No Name of Staffs = Case=20 that was helped
1 Sri Sunaryati Case of Adam Damiri
2 Siti = Agustiani=20 Djamilah Case of Adam Damiri
3 Pipit Rustami Case of = Soejarwo
4=20 Mahdi Case of Hulman Gultom
5 Uripan Case of Hulman Gultom
6 = Mathius=20 B Situru Case of Asep Kuswani, and friendsCase of Tono = Suratman
7=20 Rafitalina Case of Endar Prianto
8 Parmin Case of Endar = Prianto
9=20 Churiah Saragih Case of Tono Suratman
10 Lindawati Case of = Jajat=20 Sudrajat
11 Yanwira Case of Jajat sudrajat
12 Ida Iskandar = Case of=20 jajat sudrajat
13 Widiastuti Case of Eurico Guterres
14 Case = of M=20 Noer Muis

According to ELSAM, the numbers of staffs is not adequate = because in=20 assisting the judges, some are also assisting cases outside human = right ad=20 hoc case. It caused apprehension, because the schedule and = responsibility=20 of the judges (from previous explanation) in examining the case is = already=20 full added by the insufficient number of staff. The insufficiency = of=20 administrative support for the judges causing not only the = inability of=20 judges to perform legal research, but also to write, type, edit, = and=20 peruse all court cases' files they work on. Beside that = administrative=20 needs that should be provided immediately for the judges are often = delayed, for example the need for court transcript, which should = be=20 provided immediately.

=B7 Insufficient Library Facility
Library facility including = all=20 references and internet is a very important point. Every judge = needs this=20 facility. But in the East Timor's human right court, ELSAM has = observed=20 that the requirements for the judges cannot be facilitated=20 sufficiently.
There is a library for judges in the court = building, but=20 the books are mostly common law books. Specific books on human = rights=20 violation that needed by the judges are rarely found and mostly = written in=20 English. Some judges usually search and find their references by = their=20 own.
For ad hoc judges of the human right trial, maybe this is = their=20 first duty as a judicial officer, but even for career judges who = have=20 enough experiences in judging criminal cases, processing gross = human right=20 violation based on UU No 26 year 2000 is also a new experience. So = references related with trial for gross human right violation, in = this=20 case criminal against humanity, is very important for the judges = in=20 examining those cases.
In some 'intermediate verdict' judges = have been=20 seen trying to include some jurisprudence and international = references,=20 but to facilitate better and more specific references on ICTY and = ICTR=20 will give immense contribution for the judges.
=B7 Material=20 resources
Related with material resources, ELSAM observed that=20 infrastructure situation is pitiful; all ad hoc human right trials = are=20 conducted in a single room.
Computer facility is even worse; = too few=20 computers used compared to the amount of the judges. Computers are = not=20 linked by LAN, which would have enabled efficient information = management=20 from many resources. In some observation, to overcome such = problem, some=20 judges have resorted to using their personal = facility.
Accommodation is=20 another issue, since most of the judges do not reside in Jakarta.=20 Accommodation becomes a very important issue in order to support = judges=20 for the trial. To overcome the problem, usually the judges = personally try=20 to find their own living arrangement.
Remuneration and = transport=20 support has also become obstruction for the judges. It is found = that the=20 amount of money of travel order (Surat Perintah Jalan, SPJ) is Rp. = 150.000=20 (one hundreds and fifty thousand rupiahs) per judge for one trial, = including transportation, accommodation, meal, etc and this fund = usually=20 comes late.

II. Court Administration
=B7 Postponed Trial
The recent = condition=20 of the monitoring conducted by ELSAM has shown that there is a = decline of=20 the quality of the trial in most of the cases. There have been so = many=20 postponed trials. ELSAM has noted the reasons behind the action = being=20 first, the absence of the judge for some reason or the other. = Second, a=20 dense trial schedule that cannot accommodate the burden of the = trial.4=20 Third, the prosecutors' failure in bringing forth the scheduled = witnesses=20 (see the postponed trials' table)
Table of Postponed = Trial
Case=20 Total Postponed
Adam damiri 2
M Noer Muis 2
Tono = Suratman=20 1
Soedjarwo 4
Eurico Gutteres 4
Asep Kuswani 2
Jajat = Sudrajat=20 3
Endar priyatno 5
Hulman Gultom 1
=B7 Delayed = trial
In the=20 monitoring process conducted by ELSAM the trials have always been = late=20 from the designated time. The delay is caused by some problems, = such=20 incomplete panel of judge, confusion on the room schedule or the=20 designated room is still used for the session of another trial of = civil=20 case.
The implication from the delayed of the trial process is = the=20 insufficient time needed to conduct full examination to the = present=20 witnesses. With the limitation of allocated time, prosecutor, = judge and=20 attorney will be unable to explore witness properly.
III. = Prosecutor=20 Barrier
In criminal procedural law, the party who should prove = the=20 indictment is the general prosecutor by carrying out valid = evidence,=20 witnesses or other form of evidence. Ideally, prosecutor should, = as hard=20 as possible, prove his indictment and master his case. But what = happens in=20 the ad hoc human right trial in Central Jakarta State Court = presently is=20 that the prosecutors seem to be not trying hard enough in proving = their=20 indictment. The obligation of the prosecutor as the representation = of the=20 state to indict the defendant has remained unfulfilled. Several = indicators=20 have been used to value the degree of seriousness of the = prosecutor in=20 proving his indictment.
=B7 Presenting victim's = witness
KUHAP=20 (criminal procedural law) stipulates that in presenting witness, = victim=20 witnesses should be put forth first before other witnesses though = it is=20 not compulsory.
The importance of victim witness in ad hoc = human right=20 trial is to gather the legal facts, the scene of the incident, and = their=20 knowledge (seen and heard) about the gross human right violation = in East=20 Timor, since these witnesses are the people who were directly = involved in=20 the violation of the human right, or at least witnessed or heard = the=20 incident for their representation in site.
In monitoring, ELSAM = has=20 noticed that the prosecutor has been unable to present witnesses = to=20 support his indictment. The absence of these victim witnesses has = given=20 more reason to doubt the seriousness of the prosecutor in = obtaining the=20 trust of the victim's witnesses, most are residing in Timor = Lorosai, to=20 come and give their testimony before the court. Second, because = the=20 inconsistency of the general prosecutor itself in carrying out PP=20 (Governmental Regulation) No. 2 year 2002 on the witness = protection of the=20 gross human right violation5.

Table of witness composition proposed by general prosecutor = (until=20 September 30, 2002)
Case Victim's Witness Non Victim's = Witness
Adam=20 damiri 1 3
M Noer Muis 5 9
Soedjarwo 1 8
Tono Suratman 1=20 9
Eurico Guterres 6 7
Asep Kuswani 2 11
Jajat Sudrajat 2 = 11
Endar priyatno 1 9
Hulman Gultom 4 11

Currently, on the trial process, the importance of the victim = witnesses=20 doesn't seem to hold the attention of the prosecutor, as if the = general=20 prosecutor is already pleased with presenting witnesses who are = clearly=20 unable to support his indictment, or, even worse, those who give = testimony=20 in favor to the defendant, since most of the witnesses brought to = the=20 court by the prosecutor are members of TNI/Polri. The excuses = behind why=20 the prosecutor can't bring victim witnesses are very unreasonable, = since=20 they claim that the victim witnesses fear the government inability = in=20 guaranteeing their security.
Even worse, unable to bring = witnesses from=20 Timor Lorosae, none of the prosecutors comes with another effort = or idea=20 to bring the witnesses before the court, such as picking up = witnesses=20 directly from Timor Lorosae or by conducting teleconference or by=20 suggesting to hold some sessions of the trial in Timor = Lorosae.
=B7=20 Prosecutor exploration deepness (questions material)
Ideally, a = prosecutor who wants to prove his indictment will at least try to = find as=20 many facts from witnesses brought to the court, try to explore = information=20 which can support or having a strong argument for his indictment. = However=20 in this ad hoc human right court we have never had this ideal=20 condition.
Almost all prosecutors explore witnesses only by = asking=20 questions taken from BAP (Case Statement during the Investigation=20 Process), while witnesses from BAP are mostly having position = related to=20 the defendant, like ex-member of staff or their superior. = Consequently=20 most of the witnesses (from BAP) tend to defend the defended or = their=20 institution.
The trial (witness cross-examination) become very = odd,=20 supposedly witnesses brought by the prosecutor are against the = defended=20 but in reality, most of them are in favor to the defended. So, the = testimony given becomes useless, since substantially they do not = give=20 supporting information to prove the indictment. However, the = prosecutors=20 seem to not care, as if they have successfully done their job by = the=20 presence of the witness no matter which side the witness come for = or=20 support.
Fact exploration based on the question and information = taken=20 from BAP will not prove anything as to the relation among defended = and the=20 incident. Since basically those questions are more general. = Besides, if=20 there is some information that appears to attack the defended, the = witness=20 will promptly retract that information.
Fact exploration like = this will=20 hardly prove the indictment for crimes against humanity related = with=20 command responsibility or superior order. The questions of the = prosecutors=20 tend to be more technical as to the actions taken by the defended = when the=20 incident happened, usually on whether or not the action taken was = proper=20 while there is no criterion whatsoever about "proper action" that = should=20 have been taken, but from the perception of the attorney, judge or = prosecutor.
=B7 Bring evidence outside witness
The failure = of the=20 prosecutors are not apparent just when they have to bring victim's = witness=20 before the law, but also when they have to bring other evidences = such as=20 letter, direction etc. In the court recently, there is only one = evidence=20 brought by the prosecutor: telegraph letter from Pangdam Udayana = which=20 ordered TNI and Polri to support Pro-Integration on the incident = of=20 Liquica attack on April 6th, 1999 (brought up in Adam R. Damiri = and Tono=20 Suratman's case), unfortunately the evidence is still in doubt for = it is=20 only a copy and doesn't have 'sign' as a valid evidence. For that, = this=20 evidence presence is still powerless regarding to KUHAP. According = to a=20 member of the National Human Right Commission's Ad-Hoc Commission = of=20 Inquiry for East Timor, that there were a lot of evidences given = to the=20 prosecutors but up until now none of them brought to the = court.
If the=20 prosecutor has the courage to make a legal breakthrough, he can = use some=20 interpretations of KUHAP provisions, which seem very weak if used = in gross=20 human right violation case. With his interpretation, the = prosecutor can=20 present other evidence, like visual (video recording or photos, = some=20 information from mass media, and even look for another = documentation, such=20 investigating documents in TNI or Polri's headquarter doing which=20 prosecutor has the power of. However, the prosecutors never did=20 that.
On the cross examination of the victim's witness Manuel=20 Carascalao on Adam R. Damiri's case, he presented a video = recording-on=20 April 17th 1999 incident in Dili-to the board of judges, and then = the=20 evidence was given to prosecutor to be used. But up until now the = evidence=20 has never been used by the prosecutor.
The prosecutors, in = presenting=20 the evidence, are rigidly adhering to the KUHAP. They never try to = build a=20 precedent in investigating process. If prosecutors still do so, = their=20 indictment to crime against humanity will find only = problem.
=B7=20 Prosecutor's courage
Principally, a court is under judge's = authority.=20 But it is more to the procedural matter where the judges hold the = control=20 of the court to ensure order and balance. Other matters related to = directing witness, regarding to the obervation, prosecutor did not = have=20 the nerve to object. For questions that are not relevant to the = case,=20 prosecutor never try to object. The prosecutors cannot maintain = the=20 situation or condition when the witness should be qualified as an = a charge=20 witness to keep their statement accordingly to the prosecutor's = stance.=20 There have been some witnesses brought by the prosecutor actually = retract=20 their statement as noted in the BAP. Consequently, some of witness = brought=20 by prosecutor turn against the prosecutor when they are being=20 cross-examined in the court and attack the content of the = indictment.

IV. Judge's Breakthrough?
Judge has the obligation to = conduct trial=20 in order to uphold rules and justice. By this, a judge as a law = instrument=20 shall explore, understand and comprehend just values that stand in = the=20 society6.
By observing the fact where prosecutor were unable to = brought=20 victim's witnesses in front of the court or the lack of evidence = provided=20 by prosecutor in supporting his indictment, a new dilemma is = emerging,=20 whether this condition should continue or is there a need for law=20 breakthrough by the judge. It has been a principle in = international law=20 that crimes against humanity is hostis humanis generis (the major = enemy of=20 mankind) where the subject can be trialled wherever and whenever=20 (universal principle) since there should be no crime escape = punishment. So=20 then, court execution is a mandatory to mankind everywhere.
It = is a=20 dilemma for the judge of East Timor's ad hoc human right case in=20 performing their duty. At one side, prosecutor has been unable to = bring=20 victim's witnesses and submit evidence, and at the other side the = judge=20 are aware of many evidence that can be used.
To respond to the = issues,=20 it is true that Indonesian positive law has not regulated it = clearly and=20 concretely, whether the judge in performing his job and finding = material=20 legitimacy can take actions that have not been regulated in = Indonesian=20 positive law-but has become a need considering that this case is = not a=20 common case, but it is a case of crime against humanity-like = looking for=20 another evidence that cannot be brought upon by the prosecutor7 or = to=20 conduct teleconference8 since the prosecutor has been unable to = present=20 victim's witnesses or to conduct in situ trial (in Timor = Lorosae).
To=20 overcome above problems, the most possible thing to do is to = conduct case=20 investigation outside State Court Building or to conduct in situ=20 trial/plaatsonderzoek as can be concluded from section 230 article = 4 KUHAP=20 which stated that, aside from the court room, a trial can be = performed=20 outside the court building9, which means that this trial can be = performed=20 whether in the building (Jakarta Pusat State Court Building), or = outside=20 the building, in the places where the incident happened as = mentioned by=20 prosecutor in his indictment (Manuel Carascalao and father = Rafael's house)=20 or to conduct the trial in Timor Lorosae (plaatsonderzoek), so = that=20 victim's witnesses can easily be presented upon to the court and = then be=20 heard by all party (judge, prosecutor, attorney and=20 defended).
Conducting trial outside a state court building has = been=20 regulated in joint instruction of Chair of Supreme Court, Minister = of=20 Justice and Public Attorney No. KMA/35/1981, No. M.01.PW.07.10 = tahun 1981,=20 No. INSTR.001/JA/3/1981 on the Improvement Trial and Resolution = Criminal=20 Cases, which mentioned that trial can be conducted outside state = court=20 building, where the incident take place, where most of the = witnesses live=20 and or where the defendant is detained in order to bring=20 justice.
Investigation or trial in situ where the incident took = place=20 and most of the witnesses live can be conducted with = certainty10:
=B7=20 Initiative could come from both prosecutor or judge
=B7 = Initiator obliged=20 to prepare the trial
=B7 All institution obliged to support the = financial=20 necessity, including transportation and other = cost.
Understanding fact=20 and condition of the trial process in gross human right violation = in Timor=20 Lorosae, both prosecutor and judge should have the initiative to = make a=20 breakthrough to conduct plaatsonderzoek, with the reason that = prosecutor=20 has been unable to present victim's witnesses from Timor Lorosae = and=20 sufficient evidence is needed for the trial. If this = plaatsonderzoek is=20 conducted, obviously truth that is expected from this trial is = legal=20 material where all party involved (prosecutor, judge, attorney, = defended)=20 can defend their arguments equally and based on facts and = evidences=20 (include testimony from victim's witness). Thus the truth can be = revealed=20 in the court and the panel of judges can fulfill people's sense of = justice=20 (especially the victims) and not only to meet rules of the = law.
Related=20 to that, the judge's position has become very critical in taking = strategic=20 steps not only to 'claim' prosecutor's role in investigating = witnesses but=20 also to attain breakthroughs in law in order to meet material = legitimacy.=20 Throughout the trial, formal (procedure) problems mostly became=20 obstruction. The limitation of criminal procedural law became an = effective=20 shield used to obstruct the trial into a comprehensive fact search = to find=20 material legitimacy11.
Judge, in this position, has become a = very=20 important part to the process towards finding this material = legitimacy,=20 and concerning this issue we have principle of judge faith12. This = principle is appropriate with the substantiation system according = to the=20 negative ordinance (negatief wetteljk), which is the judge is = given full=20 authority to estimate the strength of evidence obtained in the = trial in=20 judging whether one person guilty or not guilty..
In the case = of gross=20 human right violation in Timor Lorosae, judge has the authority to = conduct=20 efforts toward finding material legitimacy. Problem that arises = afterward=20 is whether the judge can explore or conduct efforts to look for = evidence=20 outside from the material proposed by prosecutor in order to find = material=20 legitimacy.
For example, in the investigation process for Adam = Damiri's case, the attorney objected because they think the judge = has used=20 illegal evidence and violated rules on finding and using evidence = in the=20 trial by using evidence that has not been proposed by prosecutor = for that=20 case, but for another case13.The Judge was accused of being = partial since=20 he/she is searching evidence that proved the indictment.
In = fact the=20 objection was not too reasonable since first, East Timor case is a = group=20 of cases that are principally fused in the crime against humanity = in East=20 Timor, the segregation into several cases was basically intended = to ease=20 prosecution process an sich, since the prosecutor is restrained by = time=20 and resources limitation; second, evidence proposed by the judge = used as=20 supplementary evidence, and this is regulated by = KUHAP14.
Minimal=20 evidence that has been proposed by prosecutor-the responsible = party for=20 proving the indictment-has forced the judge to conduct efforts to = find=20 other evidences aside from what prosecutor has to offer. Judge may = have=20 the knowledge of those evidences outside what offered by = prosecutor, and=20 that knowledge can be obtained from anywhere. Evidences found by = judge can=20 only be clarified or confirmed by consulting witness, defendant or = expert=20 witness15.
Judge has the authority to conduct rechtsvinding = appropriate=20 with chapter 27 UU No. 17 year 1970 on judicial authority. This = regulation=20 is the law base for the judge to conduct breakthrough or to = explore norms=20 in the society16. Legal problems, which occur in this human right = trial,=20 become relevant to be linked with the judge authority to conduct = "law=20 invention". In the middle of KUHAP's flaws and demand for = international=20 standard human right trial, the most responsible party to = "interpret law"=20 is the judge of the human right trial itself.
The courage of = the judge=20 to exercise legal breakthrough towards the procedural = law-including=20 offering evidence outside the case, though objected by the = attorney of the=20 defendant-is very positive in order to find material legitimacy = and=20 achieving justice for the victims.

Jakarta, October 7th, 2002
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