The Public Prosecutor v. Miguel Mau

Court	Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number	08/2003 (08/C.G/2003/TD.DIL)
Decision title	Judgement
Decision date	23 February 2004
Parties	The Public Prosecutor Miguel da Silva a.k.a Miguel Mau
Categories	Crimes against humanity
Keywords	crimes against humanity, enforced disappearance, extermination, Murder, persecution
Links	Judgement
Other countries involved	Indonesia

Summary

During Indonesia’s occupation of East Timor from 1975 until East Timorese independence in 2002, the Indonesian Armed Forces along with a number of militia groups promoted Indonesian autonomy through violent means.

The Accused was forced to join the Laksaur militia group in 1999 and, in the course of his membership, perpetrated a number of crimes against supporters of East Timorese independence. The Special Panels for Serious Crimes convicted and sentenced the Accused to 9 years’ imprisonment for the stabbing to death by machete of three victims, the beating of numerous villagers, and the enforced disappearance of another victim who was wounded, taken out to a forest and left there. At sentencing, the Court took into consideration the frailty and sickness of the Accused who was by now 55 years old, his expression of regret at the crimes, and his having pleaded guilty. It also took into consideration the brutality of the crimes and the Accused’s apparent lack of humanity when committing them.

Procedural history

The Public Prosecutor indicted the Accused on 3 March 2003 for four counts of crimes against humanity: murder, persecution, enforced disappearance of persons and extermination.

Upon request of the Public Prosecutor, the indictment was amended so as to remove the fourth count of extermination.

On 17 November 2003, a preliminary hearing was held in which the Accused admitted to the facts in the amended indictment. Following final statements by the Defence and the Prosecution, the Court rendered its judgment.

Legally relevant facts

The Accused has been a member of the Laksaur militia group since April 1999. The purpose of the militia group is to promote autonomy within Indonesia, following the occupation by the latter of East Timor in 1975 (p. 18).

On or about 23 April 1999, the Accused, acting under the command of leaders of the militia, attacked a village in search of Joao da Silva, a pro-independence supporter. In the courseof this attack, three men who were hiding in a home were forced outside by members of the militia and were repeatedly stabbed to death with machetes, including by the Accused (p. 19).

The attack continued on a fourth victim, whose home was burned down in a bid to force him outside. Once outside, the Accused and other militia members beat the victim, brought him to a forest and left him there. He has never been seen since (p. 20).

The attacks were repeated on another village in which villagers were questioned regarding the whereabouts of Joao da Silva and then repeatedly beaten, including by the Accused (pp. 20-21).

Core legal questions

Does the commission of the crimes under orders excuse the Accused’s criminal responsibility?
What mitigating and aggravating factors may be taken into consideration?

Specific legal rules and provisions

Sections 5.1(a),(i), 5.2(f),(h) and 21 of UNTAET Regulation 2000/15.

Court's holding and analysis

In accordance with his guilty plea, the Court convicted the Accused for murder, enforced disappearance and persecution as crimes against humanity (pp. 22-23).

That the Accused committed the crimes under orders does not free the Accused of legal responsibility but may be used as a reason for mitigation at sentencing in accordance with Article 21, UNTAET Regulation 200/15 (p. 24).

Further mitigating factors taken into consideration by the Court include the regret expressed by the Accused, his admission of guilt, and his elderly and sick condition (p. 24).

The Court considered the brutality of the crimes and the Accused’s lack of humanity towards his victims as aggravating factors at sentencing (p. 24).

The Accused was sentenced to 9 years’ imprisonment (p. 25).