The Deputy General Prosecutor for Serious Crimes v. Marculino Soares

Court	Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number	02/2002-B
Decision title	Julgamento (Judgement)
Decision date	1 December 2004
Parties	The Deputy General Prosecutor for Serious Crimes Marculino Soares
Categories	Crimes against humanity
Keywords	crimes against humanity, murder, persecution, inhumane acts, command responsibility, individual responsibility, complicity, aiding and abetting
Links	Judgment

Summary

During the outbreak of violence before, during and after the referendum on independence of East Timor from Indonesia, Marculino Soares was a Besi Merah Putih (BMP) militia commander from the village of Guico, in the district of Liquiça. The BMP militia was an anti-independence militia. On 17 April 1999, the house of Manuel Carrascalão, a pro-independence leader, was attacked, resulting in the death of 12 persons, and serious injuries to 9 others. On that day, Marculino Saores had ordered his men to go to a rally in Dili, from where the attack was launched. The group led by Marculino Soares joined the attack. Marculino Soares was indicted on 25 July 2003 by the Special Panel for Serious Crimes for participating in the attack, and charged with crimes against humanity, on the basis of individual and command responsibility.

The Court found that it had been proven that Marculino Soares personally participated in the organization and execution of the attack. Marculino Soares was convicted of crimes against humanity (murder, other inhumane acts and persecution) and sentenced to 15 years in prison (13 for the count of murder and 2 years for the count of other inhumane acts).

Procedural history

Marculino Soares was indicted on 18 February 2002 together with other accused. Soares was separately indicted on 24 July 2003 after the cases were severed. A new indictment was filed on 12 July 2004, containing additional charges.

Legally relevant facts

The context of the case is the violence that erupted in East Timor after a majority of voters in East Timor chose independence from Indonesia in 1999. Before, during and after the referendum, anti-independence militias carried out attacks on pro-independence supporters throughout East Timor. These widespread attacks consisted of acts of intimidation, kidnapping, assaults, murders and rape (Indictment, p. 2).

Marculino Soares was a commander of the Besi Merah Putih (BMP) militia in Liquica, East Timor (Indictment p. 3). On 17 April 1999, the house of Manuel Carrascalão, a pro-independence leader, was attacked and during this attack, 12 people were killed and many were wounded. On the day of the attack, Marculino Saores had ordered his men to go to a rally in Dili, from where the attack was launched. The group led by Marculino Soares joined the attack Soares participated in.

Core legal questions

How is command responsibility as a mode of liability constructed and established?

Specific legal rules and provisions

Sections 5, 15 and 16 of UNTAET Regulation 2000/15.

Court's holding and analysis

Concerning command responsibility, the court held that Marculino Soares was the commander of the BMP militia, and that he knew, or had reason to know that subordinates under his command and control were going to attack civilians and failed to take reasonable measures to prevent this from happening. After the attacks, he knew that his subordinates had committed such acts and failed to punish the perpetrators.

As commander of the BMP militia he ordered the purchasing of ammunition for the weapons that were used at the Carrascalão house. Other important evidence included that he ordered his subordinates, members of the militia, to travel to Dili to attend the demonstration, from which the attack was launched and while the acts of violence were carried out the militia members were under his control. According to the court, Soares ordered and lead the action which occurred at the Carrascalão house at which 12 people were killed and 9 seriously injured. The court found Soares guilty on the basis of command responsibility and sentenced him to 15 years in prison.