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United Nations Office in Timor-Leste (UNOTIL) REFERENCE GUIDE THE CRIMINAL PROCEDURE CODE OF TIMOR-LESTE AND
United Nations Office in Timor-Leste (UNOTIL)
REFERENCE GUIDE
THE CRIMINAL PROCEDURE CODE OF
TIMOR-LESTE AND HUMAN RIGHTS
STANDARDS
UNOTIL
HUMAN RIGHTS UNIT

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RRE EEW WWO OOR RRD DD

An effective functioning judicial system is crucial for the national protection of human rights. Institutions administering justice turn legal guarantees of human rights into reality for the average citizen, and more broadly, underpin the rule of law in a country. Independent courts, judges, prosecutors and legal counsel allow for essential monitoring of the State’s human rights obligations, and are a means by which individuals can claim their rights in practice.

By publishing this Reference Guide, the Human Rights Unit of UNOTIL hopes to assist the many legal practitioners working to develop and strengthen Timor-Leste’s nascent judicial system. The Reference Guide is meant to be a tool highlighting the key areas of the newly adopted Criminal Procedure Code which affect human rights, and illustrating international best practice in applying similar provisions and procedures that may exist in other countries. In this way, it is hoped that Timorese legal practitioners will be able to ensure the highest standard of human rights protection as they implement the Criminal Procedure Code.

The Human Rights Unit would like to thank Ms. Barbara Oliviera for her hard work in drafting the Reference Guide, as well as all the UNOTIL colleagues who provided valuable input and comments. Invaluable assistance was also provided by the UNOTIL Public Information Office in formatting and printing the final version of this guide, and the Office of the High Commissioner for Human Rights for ensuring translation into Tetum.

Katja Hemmerich OiC, Human Rights Unit UNOTIL Dili, Timor-Leste August 2006

THE CRIMINAL PROCEDURE CODE OF TIMOR-LESTE AND HUMAN RIGHTS STANDARDS

FOREWORD

INTRODUCTION

1

CHAPTER I:

A New Criminal Procedure for Timor-Leste

2

1.

General Aspects of the Criminal Procedure Code

2

1.1 Actors in a Criminal Proceeding

3

1.2 Courts with Competence to Apply Criminal Law

5

2.

Procedures under the Criminal Procedure Code of Timor-Leste

5

2.1

Ordinary Procedure

5

2.2

Expedited Procedure

6

2.3

Appeals

8

3.

Relationship between the Criminal Procedure Code and other Legislation

8

3.1

Special Regulation for Cases of Terrorism, Violent

CHAPTER II:

and Highly Organised Criminality

9

Human Rights Standards in Criminal Proceedings

10

1. Constitution of the Democratic Republic of Timor-Leste

10

2. International Human Rights Standards and Mechanisms

11

CHAPTER III:

Human Rights during Arrest and Preventive Detention

17

1.

Arrest

17

1.1 Grounds and Procedure for Arrest in the Timorese Criminal Procedure Code 18

1.1.1 Arrest with a Warrant

18

1.1.2 Arrest without a Warrant

19

1.1.2.1 Arrest in Flagrante Delicto

19

1.1.2.2 Arrest outside Flagrante Delicto

20

1.2 The Right to be Promptly Informed of Reasons for Arrest and Charges

22

1.3 Right to Notification of Rights and Right to Access a Lawyer

24

1.4 The Right to be Promptly brought before a Judge

24

1.5 Immediate Release for Unlawful or Arbitrary Arrest

26

2.

Preventive Detention

27

2.1

Exceptional Nature of Detention

28

2.1.1

Alternatives to Detention

28

2.2

Grounds for Preventive Detention

29

2.2.1 Imposition of Preventive Detention for Reasons of Mental Health

31

2.2.2 Imposition of Preventive Detention of Illegal Immigrants, Aslyum Seekers and for purposes of Deportation and Extradition

31

2.3

Legal Timeframe for Preventive Detention

31

2.3.1

Periodic Review

33

3.

The Right to Challenge the Lawfulness of an Arrest or Detention before

a Court

34

3.1 Habeas Corpus Application

35

3.2 Other Procedures

37

3.2.1 Appeal

37

3.2.2 Periodic Review

37

3.2.3 Request as per Article 197 of the Criminal Procedure Code

37

CHAPTER IV:

Human Rights during Criminal Investigations

41

1.

The Right to Respect for one’s Private Life, Home and Correspondence

41

1.1

Searches of Persons and Places

42

1.1.1 House Searches

43

1.1.2 Body Searches

43

1.2 Interference with Correspondence

44

1.3 Telephone Tapping

45

2.

Guarantees during Interrogation

49

2.1 Interrogation in terms of the Timorese Criminal Procedure Code

49

2.2 The Right not to be forced to Testify against Oneself

50

2.2.1 Right to remain Silent

51

2.2.2 Right to Freedom from Torture

51

2.3

Records of Interrogation

51

CHAPTER V:

Human Rights Standards during the Trial

53

1.

The Right to a Fair Hearing

54

1.1

The Right to Equality of Arms and Adversarial Proceedings

54

2.

The Right to be tried by a Competent, Independent and Impartial Tribunal established by Law

56

2.1 Court Established by Law

56

2.2 The Right to be Heard by a Competent Tribunal

56

2.3 Impartiality of Judges

57

2.3.1 Disqualification of Judges

58

2.3.2 Challenging the Impartiality of Judges

60

3.

The Right to be Presumed Innocent

64

3.1 Burden of Proof

64

3.2 Treatment of Accused by Authorities

65

3.3 Criminal History of an Accused

66

4.

Right to a Public Hearing

68

4.1

Exclusion of the Public

68

4.2

The Right to a Public Judgement

69

5.

The Right to be Tried without Undue Delay

71

5.1 Time Limits Established by the Criminal Procedure Code

72

5.2 Expedited Procedure

74

6.

The Right to Defend oneself in Person or through a Lawyer of one’s own choice

76

6.1 Compulsory Legal Assistance

76

6.2 The Right to Free Legal Assistance

78

6.3 The Right to Privileged Communications with one’s Lawyer

78

6.4 Quality of Representation and Representation by non-Lawyers

80

7.

The Right to an Adequate Time and Facilities to Prepare one’s Defence

83

7.1

Access to Information

83

7.1.1 Information about the Charges

84

7.1.2 Information about the Prosecution Evidence

85

7.2

Time to Prepare for the Defence

85

7.2.1

Request for Adjournment or Postponement of Hearing

86

8.

The Right to be Present at One’s Trial

89

8.1 Guaranteeing the Presence of the Accused

89

8.2 Trial in Absentia

91

8.3 Temporary Absence of accused during Hearings

91

9. The Right not to be Compelled to Testify against Oneself or to Confess Guilt 93

 

9.2

Prohibition on the Use of Evidence Obtained through Unlawful Means or Treatment

94

10.

The Right to Call, Examine, or have Examined Witness

96

10.1

Right to Call Witness

96

10.1.1

Expert Witness

97

10.2 Examining Witness and Evidence

98

10.3 Detention of Witnesses

99

10.4 Limitations on the Examination of Prosecution Witnesses

99

11. The Right to Free Assistance of an Interpreter

101

12. The Right to a Reasoned Judgement

104

13. The Right of Appeal

105

13.1

The Right to Full Review

106

13.1.1

Limitations on the Right to Appeal

106

13.2 The Availability of a Judgement and Records of the Trial

107

13.3 Fair Trial Guarantees during Appeals

108

13.3.1 Hearings before the Court Hearing the Appeal

108

13.3.2 The Right to Legal Assistance

109

14.

The Rights to Compensation in the Event of a Miscarriage of Justice

110

CHAPTER VI:

 

Protection and Redress for Victims of Crime

112

 

1. The Notion of Victim

112

2. Treatment of Victims in the Administration of Justice

113

2.1

The Victims and the Prosecution

113

2.1.1 Role of Victims during Investigation

114

2.2 Informing the Victims

114

2.3 Presence of Victims during the Hearings

114

2.4 Victims’ Right to Protection of their Private Life and Safety

114

3.

Compensation and Assistance to Victims of Crime

115

3.2 Compensation

115

3.3 Assistance

116

ANNEX:

List of Web-based Resources

118

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This Reference Guide has been developed by the United Nations Office in Timor-Leste - UNOTIL - as a tool for legal practitioners in Timor-Leste to assist them in ensuring that the application of the new Criminal Procedure Code is in full conformity with international human rights standards.

This Guide deals with the main aspects of the Criminal Procedure Code related to international human rights standards.

in

conjunction with the Criminal Procedure Code and the relevant international human rights instruments.

In

order for it

to

be

of

most use to the readers,

this Guide is

to

be read

This Reference Guide was specifically developed for Timor-Leste and its newly developed Code of Criminal Procedure. However, the structure of the publication has been developed primarily on the basis of the structure of the OHCHR’s Professional Training Series no. 9 (2003) on ‘Human Rights in the Administration of Justice’.

This Guide does not pretend to be an authoritative source on the application of the Criminal Procedure Code. It aims solely at assisting those interested in the development of the Timorese justice system to have access to information on international standards and how they relate to the criminal proceedings taking place before the Timorese national Courts so that the Courts can carry out their full responsibilities for the protection of human rights in the criminal proceedings.

This Reference Guide is divided in 6 main sections. The Chapters I and II provide general information on the new Criminal Procedure Code and the international standards applicable in criminal proceedings. Chapters III to V focus on three different stages of a criminal proceeding: arrest and preventive detention, criminal investigation and the trial. Chapter VI deals with victims of crimes and the rights to which they are entitled and their relationship with the criminal proceeding. Annexed to this Guide is a list of Internet Resources.

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Since the 1st January of 2006, Timor-Leste, the newest nation of the world, has its own criminal procedure law, when the Decree Law 13/2005 approving the Criminal Procedure Code came into force.

The establishment of a judicial system is one of the important aspects of nation building. Having experienced successive application of laws from different administrations in its criminal system – Portuguese and Indonesian Laws and UNTAET legislative acts - the new Criminal Procedure Code is the first major law on its independent judicial system promulgated by Timor-Leste.

The Criminal Procedure Code (CPC) aims at obtaining a balance between the need to ensure the protection of the fundamental guarantees in a criminal procedure and the need to establish adequate mechanisms to fight the criminality existent in the country 1 .

1. GENERAL ASPECTS OF THE CRIMINAL PROCEDURE CODE

The structure of the Timorese CPC is modelled along the lines of the criminal procedure codes of other members of the Community of Portuguese Language

Countries (CPLP), and in particular Guinea-Bissau.

The CPC of Timor-Leste consists of 359 articles and is divided in three main parts:

general provisions, ordinary procedure and expedited procedure.

Following the civil law model, the Code further aims at systematizing the rules applicable to a criminal proceeding. As a consequence, one can find rules which are applicable to the work of the police, the Courts (and its actors, including the public prosecution service) as well as the penitentiary institution, in the CPC.

The General Provisions (Part I) establish the basic rules applicable to a criminal proceeding, independent of its nature as an ordinary, expedited or appeal proceeding. This part of the Code includes regulations on issues such as jurisdiction of the Courts, types of evidence and means by which evidence is obtained, participants in the proceedings as well as restrictive measures to be imposed on an accused.

The Second Part – Ordinary Procedure – regulates all steps to be taken in the ordinary course of a case, starting from the collection of information about a criminal act, and goes all the way to regulate any appeals as well as execution of sentences.

The provisions related to expedited trials are described in Part III of the Code.

1 Preamble CPC, para. 1 and 2.

1.1 ACTORS IN A CRIMINAL PROCEEDING

Judge In a country which follows the civil law tradition, the Judge has generally broader powers in the criminal proceedings as compared to countries that have adopted the common law system. The CPC gives Judges a considerable amount of power to direct the proceedings and to guarantee that the rights of the accused are protected.

Overall, the Judge has the competency to lead the trial in a criminal procedure 2 . The Judge is the authority who decides, within the legal boundaries, on the direction that

a case will take throughout the proceeding until the final decision.

In addition to identifying the power and role of a Judge, the CPC also regulates the grounds and the procedures to challenge the lack of impartiality of Judges (Chapter V, 2.3 Impartiality of Judges).

The CPC only regulates the criminal proceedings before the courts; the general regulation of the Judge’s career, their duties and rights are regulated in a separate legislation: the Judicial Magistrates’ Law (Law 8/2002 as amended by Law 11/2004). The composition of the Courts is regulated by the Regulation on the Organization of Courts (UNTAET Regulation 2000/11 as amended by 2001/25).

Public Prosecution The prosecutor is, within the context of the CPC, considered as a judicial authority (article 1(b)). The public prosecution service is responsible for bringing criminal cases to trial. It is the prosecution who has the power (and the right) to make an allegation of criminal conduct against identifiable persons before the Courts 3 . The prosecution service carries a duty to assist the Court in finding the truth and implementing correctly the law as established 4 .

A public prosecutor has the overall responsibility to direct the investigation of crimes,

prepare and file an indictment with the courts as well as to present the necessary evidence in support of the accusation. 5

According to the criminal procedure, the public prosecution service is bound to conduct their tasks with impartiality and objectivity (article 48(1). 6 The CPC regulates the grounds and mechanisms for challenging the lack of impartiality of a prosecutor (article 51 CPC). The duties of the prosecutors and structure of the public prosecution services are regulated by the Organic Law of the Prosecution Services, Law 14/2005.

Police The Criminal Procedure Code establishes the general role of the police in the prevention and combat of criminality (article 52) 7 . In the criminal proceeding, the role of the police is crucial in the investigation phase. In this context, the police execute their functions under the directions of the prosecution services (article 57 and 227).

2 Article 47 of CPC.

3 Article 48 and 49 of CPC.

4 Article 48 of CPC.

5 Article 48(2) of CPC.

6 See also article 132(3) of Constitution of RDTL.

7 See also Internal Security Law, Law 8/2003, 8 October 2003.

Chapter I – A New Criminal Procedure for Timor-Leste

The main tasks of the police as per the Criminal Procedure Code is to collect information for the discovery of the truth (article 55), undertake search and seizure (article 56 and 168-173) and to arrest those suspected of committing a crime as established by law (article 218-220, 222 and 223).

Defence Representative The role of a defence lawyer is essential for the fair administration of justice. From a human rights perspective, the work of a defender is essential to guarantee that the criminal proceedings are conducted in a fair manner (see Chapter V, 6. The Right to Defend oneself in Person or through a Lawyer of one’s own Choice).

The general role of a defence lawyer – as defined in article 67 of the CPC – is to provide technical legal assistance to the accused. A defence lawyer is a legal representative of the accused before the Courts and therefore can take actions on behalf of the accused 8 .

In Timor-Leste, legal representation before the Courts is undertaken by public defenders or lawyers. The Office of Public Defenders is an autonomous service within the Ministry of Justice, with the main responsibility of providing full and free legal assistance to unprivileged citizens 9 . As of March 2006, no legal framework was in place to regulate the legal profession, including, as a consequence, the work of lawyers in providing legal assistance in a criminal proceeding.

Accused The accused is the person who is alleged of having committed a criminal offence. The determination of the status as an accused brings with it important legal consequences. The necessary guarantees to a fair trial are – according to article 60 – accorded only to a person whose status as an accused has been established, in terms of article 59.

The concept of an accused in the new Code considerably differs from that provided under the Transitional Rules of Criminal Procedure. 10 The CPC in general considers as an accused any person who has come into contact with the judicial authorities or police on suspicion of having committed a crime (article 59(2)); therefore goes beyond the concept that a person becomes an accused only when a formal indictment is filed with the Court against him/her.

Victim The victim is procedurally positioned as the assistant of the public prosecution

(article 72(1)). The role of the victim within criminal proceedings is outlined in detail

in the CPC in articles 71 and 72.

A victim of a criminal offence is entitled to play an important, but somehow limited,

active role in the proceedings. The CPC entitles the victim to challenge the impartiality of a Judge or a prosecutor (article 41(2)) and to request that a decision

of the prosecution to close the investigation and not to proceed with the indictment be reassessed (article 235(4)). The victim is also entitled to request financial compensation for the damages incurred as a consequence of the criminal act against him/her (article 72(2)).

8 Article 67 of CPC.

9 Article 15 of the Organic Law of the Ministry of Justice, Government Decree 3/2003, 23 July 2003. 10 Article 1(a) and 1(w) of UNTAET Regulation 2000/30, as amended by Regulation 2001/25.

Chapter I – A New Criminal Procedure for Timor-Leste

In comparison, the role of the victim in the criminal proceeding according to the CPC of Timor-Leste is more limited than the role played by the victim in the majority of other CPLP members, including Mozambique and Macau.

Chapter VI on the Protection and Redress for Victims of Crime provides for other matters related to the victims, including rights and duties, before the Timorese criminal procedure and international laws.

1.2 COURTS WITH COMPETENCE TO APPLY CRIMINAL LAW

The competencies of the Courts in Timor-Leste to apply criminal law are regulated by the CPC.

Both District Courts as well as the Supreme Court of Justice have jurisdiction to hear criminal cases (see Chapter V, 2. The Right to be tried by a Competent, Independent and Impartial Tribunal established by Law).

In Timor-Leste, there are currently four District Courts: Dili, Baucau, Suai and Oecusse; their territorial jurisdictions are regulated by UNTAET Regulation on the Organization of the Courts. 11 The Supreme Court of Justice (SCJ) has not yet been established, and for the time being, its functions and competencies are vested with the Court of Appeal (article 164 Constitution).

The District Courts have general jurisdiction over all criminal cases, irrespective of the types of crime and the possible sentence (article 13). The SCJ has jurisdiction over all appeals from the district courts, as well as other specific competencies.

According to article 12, the SCJ exercises both the role of a court of first instance and an appeal court in criminal proceedings. The SCJ is composed by a Criminal Section and a Full Bench. The Criminal Section of the SCJ hears appeals from decisions of district courts, habeas corpus applications, and adjudicates on cases in connection with the criminal offences committed by judicial authorities. Amongst its responsibilities, the full bench of the SCJ is responsible to judge the President of the Republic and to hear appeals against the decisions of its Criminal Section when deciding as a court of first instance.

2. PROCEDURES UNDER THE CRIMINAL PROCEDURE CODE OF TIMOR-LESTE

Only two procedures are established in the Timorese CPC to judge criminal cases:

ordinary and expedited procedures. An appeal procedure is accorded the power to deal with challenges of decisions taken either by an ordinary or expedited procedure. No special procedure is provided by the CPC to try cases involving accused minors (juveniles).

2.1 Ordinary Procedure

The ordinary procedure is composed of well delineated procedural acts which are taken consecutively during the development of a criminal proceeding.

The points below summarize the main steps in an ordinary procedure:

1 st : Receipt of information on the commission of a crime (articles 210 to 216) Includes the provision of information by any person or the filing of a complaint by a victim in relation to semi-public crimes, with the police or the prosecution’s office.

11 Article 7 of UNTAET Regulation 2000/11, as amended by Regulation 2001/25.

Chapter I – A New Criminal Procedure for Timor-Leste

2 nd : Open an Inquiry (investigation) (article 224) This process starts with the formal acceptance of information on the commission of a crime (Step 1). 3 rd : Undertaking of Investigation This relates mainly to the measures and period for gathering evidence under the direction of the public prosecutor, including coercive measures (such as pre-trial detention) and search and seizure, involving the police and the public prosecution services. 4 th : Closure of Inquiry and Decision to Proceed or not with the Indictment (articles 234 and 235) After undertaking necessary steps to gather information the public prosecutor closes the inquiry and evaluates whether there is evidence enough to proceed with an indictment. 5 th : Filing of Indictment with the Court (article 236 to 238) Includes court notification of the indictment to the defence and forwarding the case file to the relevant Court. 6 th : Assessment of Indictment by the Judge (articles 240 to 242) Includes an initial assessment by the Judge and the provision of a procedure entitling the defence to reply to the indictment. 7 th : Scheduling and Holding of Hearing(s) (articles 245 to 277) Includes rules on adducing evidence for both prosecution and defence, delays and postponement of hearings, statements of accused, victim and witnesses before the Judge as well as the oral closing arguments. 8 th : Decision Making Process and Handing Down the Decision (articles 278 to 286)

The graph below attempts to illustrate the main steps of the ordinary procedure as established by the CPC.

2 years 6 months* 72hours 15 days 15 days
2 years
6 months*
72hours
15 days
15 days
ARREST 1st INTERROGATION REVIEW ISSUE INDICTMENT COURT ACCEPTS TRIAL HEARING ACCUSED DETENTION INDICTMENT AND
ARREST
1st INTERROGATION
REVIEW
ISSUE INDICTMENT
COURT ACCEPTS
TRIAL HEARING
ACCUSED
DETENTION
INDICTMENT AND
CLOSURE OF TRIAL
AND DELIBERATION
COURT
FINAL DECISION
Read during Hearing
SCHEDULE
CLOSURE
HEARING
INVESTIGATION

Illustration based on a procedure which goes on trial (i.e. indictment from prosecution is accepted by the Court). The time limits are those imposed to cases where the accused is under preventive detention. * this timeframe can be extended for further 6 months

The CPC does not include regulation of proceedings specifically applicable to children in conflict with the law or children as victims of crimes. These aspects are intended to be regulated in the Children’s Code which is to be developed in the near future.

2.2 EXPEDITED PROCEDURE

The CPC provides for the possibility to conduct a trial using an expedited procedure. With this, it aims at providing a simple mechanism to deal quickly with small and medium criminality, when a person is caught in the act of committing a crime (in

Chapter I – A New Criminal Procedure for Timor-Leste

flagrante delicto). 12 The expedited procedure established by the new CPC differs to a great extent to that provided by the Transitional Rules of Criminal Procedure. 13

According to article 346(1) of the CPC, a trial is conducted through the expedited procedure when: 1) there is an arrest in flagrante delicto; and b) it is related to crime carrying a maximum sentence not superior to 5 years imprisonment.

In relation to the arrest in flagrante delicto, expedited procedures used in other CPLP members, Portugal, Macau and Cape Verde included, limit the use of this abbreviated procedures only to those cases where the arrest has been carried out by the police or judicial authority. Similar restriction is not found within the CPC of Timor-Leste, allowing the possibility of interpreting that an expedited procedure before the Timorese Courts can also be used in a case where an arrest of a person in flagrante delicto has been made by an ordinary person.

Articles 346 to 350 specifically regulate the conduct of an expedited trial. However, all rules included in the first part of the Code (General Part) are applicable. The rules applied for the trial hearings in an ordinary procedure are also applicable with necessary adaptation (article 349(5)).

Overall, it can be said that the rules applicable to an ordinary procedure are abbreviated and simplified in an expedited procedure. The main rules applied to the expedited procedure are summarized below:

Trial hearing is to be held within 72 hours from the arrest (article 346(2)) hours from the arrest (article 346(2))

Formal indictment replaced by the written recording of the detention (article 347(2)) written recording of the detention (article 347(2))

Rebuttal of the indictment can be presented in writing at the beginning of the hearing (article 349(3)) the hearing (article 349(3))

Notification of witnesses, accused or victim is made orally by the police or judicial authority (articles 348(2) and accused or victim is made orally by the police or judicial authority (articles 348(2) and (3))

Limitation on the presentation of three witnesses for the defence (articlethe police or judicial authority (articles 348(2) and (3)) 348(3)) Judgement is written in a simplified

348(3))

Judgement is written in a simplified manner (article 349(4))of three witnesses for the defence (article 348(3)) Limited right to appeal; a ppeal only possible

Limited right to appeal; appeal only possible against the decision ordering the trial to be of an expedited na ppeal only possible against the decision ordering the trial to be of an expedited nature and the judgement (article 350)

It is recognized in article 346(3) that it might not be possible to conduct the trial hearing within the timeframe of the 72 hours. In such cases, the trial is still able to be conducted as an expedited procedure.

12 Preamble of CPC, para.6.

13 There are differences in relation to the type of crimes which can be dealt within an expedited trial as well as the timing for conducting the trial.

2.3 APPEALS

Since the right of appeal will be dealt with in detail under Chapter V of this Guide, this section will be limited to describing some of the procedural steps of the appeal procedures.

There are two types of appeals: ordinary and extraordinary appeals. The extraordinary appeals are further sub-divided into review procedure (articles 315 to 320) and appeal for the ‘harmonization’ of jurisprudence (articles 321 to 321).

The CPC regulates the scope, effect, procedural timeframes and decision-making process of both ordinary and extraordinary appeals.

As the naming points out, the vast majority of appeals before the Courts in Timor- Leste will be of an ordinary nature. In relation to the scope of an ordinary appeal, an appeal against a final decision involves a review of the entire judgement, unless parts of the judgement can be separated and dealt with autonomously (articles 290 and 292, respectively). The SCJ on its own initiative can review issues of facts under the circumstances provided by article 299 even though the appeal was submitted only in relation to issues of law.

In general, only the appeals against convicting sentences have the effect of suspending the enforcement of the judgement (article 298(1)).

The submission of an appeal has to be filed within 15 days from the notification of the decision which is being appealed against (article 300(1)). The same timeframe is afforded for the respondent’s reply (article 302(2)). No further timeframes are provided by the CPC.

Under the CPC, the SCJ is not obliged to hold a hearing for all appeals. It is within the discretionary power of the Court to decide when hearings are needed (article 306(2)). Excluded from this rule are those appeals requiring the renewal of proof which should always entail the holding of an adversarial hearing (article 307).

According to article 293, the SCJ is prohibited from imposing a heavier sentence against the convicted person in those appeals which were submitted by the convicted person himself or the prosecution acting on the exclusive interest for the defence.

3. RELATIONSHIP BETWEEN THE CRIMINAL PROCEDURE CODE AND OTHER LEGISLATION

The CPC is applied as a part of the overall legal system of Timor-Leste. It is important to understand that not all rules which pertain to criminal proceedings are regulated by the Criminal Procedure Code.

The administration of justice in a criminal trial also involves the application of other legislation, which includes the regulation on the Organization of the Courts (UNTAET Regulation 2000/11 as amended by 2001/25), Judicial Magistrates’ Law (Law 8/2002, as amended), Organic Law of the Public Prosecution Services (Law 14/2005), Organic Law of the National Police of Timor-Leste (Decree Law 8/2004), Code of Judicial Costs (Decree Law 15/2003) as well as regulations applicable to the prison services, legal profession and execution of sentences.

3.1 SPECIAL REGULATION FOR CASES OF TERRORISM, VIOLENT AND HIGHLY ORGANIZED CRIMINALITY

The relationship between the new CPC and the Special Regulation for Cases of Terrorism, Violent and Highly Organized Criminality (“Special Regulation”) 14 is different from the relationship identified above. The Special Regulation provides for specific rules which should be applied in criminal proceedings as complementary provisions to those provided in the CPC. In other words, the Special Regulation in practice “amends” the CPC in relation to the application those areas included in the CPC and the Special Regulation to cases of terrorism, violent and highly organized criminality.

The Special Regulation aims at establishing a set of specific norms of criminal procedure which are exempt from requiring prior judicial authorisation for carrying out certain measures for the collection of evidence in criminal proceedings (article 1); its overall objective is to establish specific instruments which are capable of responding to the needs of criminal proceedings in relation to crimes of great severity. 15

The Special Regulation provides specific rules for the detention, house search, search of persons, seizure and telephone tapping in relation to the crimes included in the Regulation. These specific procedures, and how they relate to recognized human rights standards, are considered in the relevant sections of this Guide.

The specific rules included in the Special Regulation are only applicable to the cases of terrorism, violent and highly organized criminality. In accordance with article 2 of the Regulation cases of terrorism, violent and highly organized criminalities include actions which relate to:

(a)

crimes of terrorism, terrorist organization or criminal association;

(b)

intentional crimes against the life, physical integrity or liberty of the persons which are punishable with imprisonment equal or superior to 8 years;

(c)

organized serious drug crimes, passive and active corruption, abuse of power, money laundering, embezzlement, trafficking of human beings, trafficking of weapons; and

(d)

crimes against the rule of law, coercion of constitutional organs, work or collaboration with foreign enemy forces, sabotage against national defence, violation of state secret or diplomatic infidelity when committed organized or violently.

Despite its conciseness and the fact that it is a piece of legislation autonomous from the CPC, the Special Regulation is of great importance for a substantial number of proceedings since it can include up to 39 different offences as per the Draft Criminal Code, including murder, serious maltreatment, rape and robbery, amongst others offences.

14 Decree Law X/2005 (not yet published, but already promulgated)

15 Preamble.

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The ultimate aim of establishing a criminal procedure law is to build a balanced legal structure between the State’s duty to punish and the fundamental guarantees of liberty and security.

Human rights are at the heart of criminal proceedings. They provide the basis for holding people criminally accountable as well as the framework to limit the actions of the Courts and its actors. One of the fundamental guarantees in a criminal proceeding is the right to a fair trial or due process guarantees. This is an essential safeguard to assure that individuals are not unjustly punished.

Human rights are at stake throughout the process, from the time of arrest, in pre- trial detention, during the trial, during all appeals, right through to the imposition of any punishment.

1. CONSTITUTION OF THE DEMOCRATIC REPUBLIC OF TIMOR-LESTE

The Constitution of Timor-Leste, in the chapter on the Fundamental Rights, Duties, Liberties and Guarantees, provides in article 34 for guarantees in criminal proceedings.

Article 34 (Guarantees in criminal proceedings)

1. Anyone charged with an offence is presumed innocent until convicted.

2. An accused person has the right to select, and be assisted by, a

lawyer at all stages of the proceedings and the law shall determine the

circumstances for which the presence of the lawyer is mandatory.

3. Every individual is guaranteed the inviolable right of hearing and

defence in criminal proceedings.

4. Evidence is of no effect if obtained by torture, coercion, infringement

of the physical or moral integrity of the individual, or wrongful interference with private life, the home, correspondence or other forms of communication.

Other guarantees which are directly applicable in criminal proceedings are:

prohibition of arbitrary arrest (article 30(2)), right to have a detention reviewed by a Judge (article 30(2)), rights during arrest, including information on reasons for the arrest and access to a lawyer (article 30(3)), right to compensation for unjust conviction (article 31(6)) and prohibition of double jeopardy (article 31(4)). In addition, the Constitution in its article 33 establishes the right to challenge the legality of detention through a habeas corpus procedure.

By virtue of application of article 23, any person in detention or under trial is entitled to all fundamental guarantees unless these can be justifiably limited under specific circumstances.

Of the guarantees provided in the Constitution of Timor-Leste, the following are worth highlighting because of their close relation to criminal proceedings:

Access to Courts (article 26);because of their close relation to criminal proceedings: Equality before the Law (article 16); Equality between

Equality before the Law (article 16);to criminal proceedings: Access to Courts (article 26); Equality between Women and Men (article 17); Protection

Equality between Women and Men (article 17);proceedings: Access to Courts (article 26); Equality before the Law (article 16); Protection of Children (article

Protection of Children (article 18);Access to Courts (article 26); Equality before the Law (article 16); Equality between Women and Men

Chapter III – Human Rights Standards in Criminal Proceedings

Prohibition of Torture (article 30(4));III – Human Rights Standards in Criminal Proceedings Right to Honour and Privacy (article 36); Protection

Right to Honour and Privacy (article 36);Criminal Proceedings Prohibition of Torture (article 30(4)); Protection of Home and Correspondence (article 37); and

Protection of Home and Correspondence (article 37); and(article 30(4)); Right to Honour and Privacy (article 36); Right to access to information (article 40)

Right to access to information (article 40)36); Protection of Home and Correspondence (article 37); and Other principles included in other parts of

Other principles included in other parts of the Constitution are also relevant in guaranteeing the overall fairness of a criminal proceeding; for example the independence and impartiality of the judiciary (articles 119 and 121(2)), publicity of court hearings (article 131) and the inviolability of the confidentiality of correspondence between lawyer and client (article 136).

Any limitations to the fundamental rights must be made in accordance with article 24 of the Constitution. This provision requires that in order to be justifiable the limitation should be established by law and be aimed at protecting other recognized interest. In practice the assessment as to whether a right can be justifiably limited is based on the principles of necessity and proportionality. 16

When considering the application of human rights standards it is essential to consider article 9 of the Constitution. According to this provision, international treaties to which Timor-Leste is a party are directly applicable at national level. In practice, once Timor-Leste becomes party to an international human rights treaty, the standards included in the treaty are automatically incorporated in the Constitution. As a result the human rights guarantees contained in the international treaties are directly applicable in the Courts of Timor-Leste.

Timor-Leste has ratified seven core human rights treaties, including the International Covenant on Civil and Political Rights 17 , the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 18 , the Convention on Elimination of Discrimination against Women 19 and the Convention on the Rights of the Child 20 .

Being an integral part of the Constitution by virtue of the direct acceptance of international law in the national jurisdiction, every law, including the Criminal Procedure Code, must be in compliance with the Constitution and international human rights law incorporated therein.

2. INTERNATIONAL HUMAN RIGHTS STANDARDS AND MECHANISMS

At the international level a considerable number of standards have been set in relation to the conduct of a fair criminal proceeding.

The right to a fair trial per se is a basic human right provided in the International Covenant on Civil and Political Rights (ICCPR) 21 and the Universal Declaration of Human Rights (UDHR) 22 .

16 See Timor-Leste Court of Appeal, Constitutionality Control, Case No. 1/2005, 9 May 2005.

17 Parliament Resolution No. 3/2003, 20 August 2003.

18 Parliament Resolution No. 9/2003, 10 September 2003.

19 Parliament Resolution No. 11/2003, 17 September 2003.

20 Parliament Resolution No. 16/2003, 17 September 2003.

21 Article 14.

22 Article 10.

Chapter III – Human Rights Standards in Criminal Proceedings

The right to liberty and security of the person – article 9 of the ICCPR and articles 3 and 9 UDHR – are also of fundamental importance to criminal proceedings.

International Treaties As already highlighted, any accused or detained person is entitled to all fundamental guarantees recognized in the various international treaties which have already been ratified by Timor-Leste.

In addition to guaranteeing the right to a fair trial, other guarantees which are intrinsically related to criminal proceedings are laid down in these and other instruments, including the Convention against Torture, the Convention on Elimination of Discrimination against Women and the Convention on the Rights of the Child.

The ICCPR is the international treaty which has developed a solid body of principles applicable to criminal proceedings. Its article 14 is the core of the fair trial guarantees. Article 9 is also applicable to criminal proceedings in that it prohibits arbitrary limitation to one’s right to liberty. Prohibition of torture and other inhuman and degrading treatment or punishment is provided in article 7 of this treaty.

The monitoring body for the implementation of ICCPR – the Human Rights Committee – has over the past decades developed consistent and, to some extent, detailed interpretative tools, including in relation to articles 9 and 14.

These tools are the result of three main activities undertaken by the Human Rights Committee (HRC). First, the Human Rights Committee receives individual complaints about violation of specific rights contained in the Covenant - the so-called Communications – and evaluates whether the State party has violated or not the Covenant. A second activity is the elaboration of interpretation of specific articles of the ICCPR; the General Comments. Within its monitoring work, the HRC also provides comments to States’ steps in the implementation of the Covenant; these comments are shaped in the form of Concluding Observations and Recommendations to State parties periodic reports. These activities embody the work of the Human Rights Committee in assisting State parties in incorporating the human rights standards contained in the ICCPR in their national jurisdiction.

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) is also of great relevance to the guarantees during criminal proceedings. This Convention sets important grounds for the combating of torture, including guidelines for effective investigation measures. Similar to ICCPR, the CAT has also its monitoring Committee – the Committee against Torture – which has developed similar tools through its work in dealing with Communications, making General Comments and providing Concluding Observations and Recommendations. In addition, this Committee can also undertake visits to State parties’ places of detention.

The Convention on the Rights of the Child (CRC) establishes similar guarantees relevant to criminal proceedings as the ICCPR; including the establishment of a general framework for the regulation of juvenile justice. Its monitoring body – the Committee on the Rights of the Child – uses mechanisms for monitoring the implementation of the CRC similar to those of the ICCPR and CAT. The international treaty dealing with discrimination against women – Convention on the Elimination of Discrimination against Women (CEDAW) - should also be taken into account when

Chapter III – Human Rights Standards in Criminal Proceedings

applying human rights standards to criminal proceedings in those cases where women are either the victim or the accused of a criminal offence.

As already highlighted in this Section, the treaties which Timor-Leste has already ratified have the force of law and their provisions must be respected. By virtue of article 9 of the Constitution of Timor-Leste, international human rights treaties are directly incorporated into the Constitution and therefore carry the same legal force as the Constitution.

Example of an Individual Communication In the case of C. Reid v. Jamaica, the Human Rights Committee was of the opinion that the State party had failed to grant counsel sufficient minimum time to prepare his examination of witnesses, therefore finding a violation of article 14(3)(e) of the ICCPR. In this communication the author had alleged that the legal aid attorney was only assigned to him on the day his trial opened and that the trial judge refused a postponement to enable the lawyer to discuss the case with his client; according to the author, the lawyer “was wholly unprepared” and had told him “that he did not know which questions to pose to the witnesses”. Communication No. 250/1987, C. Reid v. Jamaica, views adopted during the Human Rights Committee 39 th Session on 20 July 1990

Example of a Treaty Committee’s Concluding Observation In commenting on Venezuelan Periodic Report to the Convention against Torture, and Other Cruel, Inhuman, Degrading Treatment or Punishment in 2002, the Committee against Torture congratulated Venezuela for including expressly in its new Constitution that persons charged should remain at liberty and pre-trial custody is identified as the exception.

Venezuela, CAT, A/58/44 (2002) 32

Example of a General Comment Article 14 of the ICCPR has been interpreted by the Human Rights Committee back in 1984 in the General Comment No. 13 on the Administration of Justice. In this General Comment, amongst various directions given by the Human Rights Committee in applying article 14 of the ICCPR, the Committee provided in paragraph 9 stated:

“[Article 14(3)(b)] provides that the accused must have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing. What is “adequate time” depends on the circumstances of each case, but the facilities must include access to documents and other evidence which the accused requires to prepare his case, as well as the opportunity to engage and communicate with counsel. When the accused does not want to defend himself in person or request a person or an association of his choice, he should be able to have recourse to a lawyer. Furthermore, this subparagraph requires counsel to communicate with the accused in conditions giving full respect for the confidentiality of their communications. Lawyers should be able to counsel and to represent their clients in accordance with their established professional standards and judgement without any restrictions, influences, pressures or undue interference from any quarter.”

Other Standard Setting Instruments The United Nations system for the promotion and protection of human rights has also developed a considerable number of instruments related to the administration of justice. These are generally the result of resolutions adopted by the General

Chapter III – Human Rights Standards in Criminal Proceedings

Assembly and by various United Nations Congresses on the Prevention of Crime and the Treatment of Offenders.

The following resolutions are among those of particular significance for the administration of justice at national levels. Many of these resolutions deal with the treatment of persons deprived of their liberty, including juveniles, aiming at eradicating torture and other kinds of inhuman treatment. They were adopted by the United Nations General Assembly. Examples are:

Basic Principles for the Treatment of Prisoners, 1990; eatment of Prisoners, 1990;

Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, 1988; of All Persons under Any Form of Detention or Imprisonment, 1988;

United Nations Rules for the Protection of Juveniles Deprived of their Liberty, of Juveniles Deprived of their Liberty,

1990;

Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or on of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

1982;

The Code of Conduct for Law Enforcement Officials, 1979; Enforcement Officials, 1979;

United Nations Standard Minimum Rules for Non-custodial Measures, 1990 (called the Tokyo Rules); les for Non-custodial Measures, 1990 (called the Tokyo Rules);

United Nations Guidelines for the Prevention of Juvenile Delinquency, 1990 (called the Riyadh Guidelines); ention of Juvenile Delinquency, 1990 (called the Riyadh Guidelines);

Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (called the Beijing Rules); and nile Justice, 1985 (called the Beijing Rules); and

Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985 (called the Victims’ Declaration)of Juve nile Justice, 1985 (called the Beijing Rules); and Interpretative guidance as to the meaning

Interpretative guidance as to the meaning of international legal standards can also be sought in instruments adopted by the various United Nations Congresses on the Prevention of Crime and the Treatment of Offenders. The most pertinent to the administration of justice are:

Standard Minimum Rules for the Treatment of Prisoners, 1955; Treatment of Prisoners, 1955;

Basic Principles on the Independence of the Judiciary, 1985; ndence of the Judiciary, 1985;

Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, 1990;Principles on the Indepe ndence of the Judiciary, 1985; Basic Principles on the Role of Lawyers,

Basic Principles on the Role of Lawyers, 1990; andof Force and Firearms by Law Enforcement Officials, 1990; Guidelines on the Role of Prosecutors, 1990.

Guidelines on the Role of Prosecutors, 1990. of Prosecutors, 1990.

Relevance of these Instruments in Timor-Leste These instruments do not, as such, constitute legally binding obligations to States, but, depending on the circumstances of their adoption, they can provide useful evidence of customary international law. As a minimum, resolutions adopted by the General Assembly, for example, carry strong moral and political force and can be regarded as setting forth principles broadly accepted within the international community. Consequently, they can also provide important guidance to the court proceedings, in situations, for instance, where either international or national law is not sufficiently clear on a particular issue.

Chapter III – Human Rights Standards in Criminal Proceedings

Article 9 of the International Covenant on Civil and Political Rights

1. Everyone has the right to liberty and security of person. No one shall be

subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons

for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly

before a judge or other officer authorized by law to exercise judicial power and shall

be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to

take proceedings before a court, in order that court may decide without delay on

the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an

enforceable right to compensation.

Article 14 of the International Covenant on Civil and Political Rights

1. All persons shall be equal before the courts and tribunals. In the determination of

any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

2. Everyone charged with a criminal offence shall have the right to be presumed

innocent until proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be

entitled to the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands

of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and

to communicate with counsel of his own choosing;

(c)

To be tried without undue delay;

(d)

To be tried in his presence, and to defend himself in person or through

legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain

the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or

speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

4. In the case of juvenile persons, the procedure shall be such as will take account of

their age and the desirability of promoting their rehabilitation.

5. Everyone convicted of a crime shall have the right to his conviction and sentence

being reviewed by a higher tribunal according to law.

6. When a person has by a final decision been convicted of a criminal offence and

when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such

conviction shall be compensated according to law, unless it is proved that the non- disclosure of the unknown fact in time is wholly or partly attributable to him.

7. No one shall be liable to be tried or punished again for an offence for which he has

already been finally convicted or acquitted in accordance with the law and penal

procedure of each country.

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Everyone has the right to personal liberty. Internationally, this right is guaranteed by article 3 of the Universal Declaration of Human Rights and article 9 of the International Covenant on Civil and Political Rights. At the national level it is guaranteed by article 30 of the Constitution of Timor-Leste.

Governments may deprive people of their liberty in certain prescribed circumstances. International human rights standards provide a series of protective measures both to ensure that individuals are not deprived of their liberty unlawfully or arbitrarily, and to establish safeguards against forms of abuse of those who have been lawfully deprived of their liberty.

1. ARREST

Article 9(1) of the ICCPR reads:

“1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”

Two criteria need to be met in order for arrests to be carried out in conformity with article 9(1) of the ICCPR: they must be established by law (principle of legality) and they must not be arbitrary.

The Human Rights Committee holds that the principle of legality “is violated if an individual is arrested or detained on grounds which are not clearly established in domestic legislation”. In other words, the grounds for arrest and detention must be “established by law”. 23 As a direct consequence of the principle of legality, arrests need to be carried out only by those who are authorized by law (principle 2 of the Body of Principles). 24

With regard to the meaning of the term ‘arbitrary arrest’ in article 9(1) of ICCPR, the Committee explained that “‘arbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law”. 25

Therefore, an arrest which is lawful may nonetheless be arbitrary under international standards, for example if the law under which the person is detained is vague, overly-broad or is in violation of other fundamental standards such as the right to freedom of expression.

While an arrest can be lawful, the subsequent detention can become arbitrary in case an arrested person is kept under detention after the expiration of the legal limits for detention or a person is kept in detention despite the fact that a judicial authority has ordered the release.

23 Human Rights Committee Communication No. 702/1996, C. McLawrence v. Jamaica, 18 July 1997, para. 5.5. See also Human Rights Committee Communication No. 770/1997, Gridin v. Russian Federation, 20 July 2000, para. 8.1.

24 See also article 12 of the Declaration on Disappearance.

25 Human Rights Committee Communication No. 458/1991, A. W. Mukong v. Cameroon, 21 July 1994, para. 9.8, emphasis added.

Chapter III – Human Rights during Arrest and Preventive Detention

Article 9 of the ICCPR is applicable to all deprivations of liberty, whether in criminal cases or in other cases, for such example as mental illness, educational purposes and immigration control. 26

1.1 GROUNDS AND PROCEDURE FOR ARREST IN THE TIMORESE CRIMINAL PROCEDURE CODE

The CPC of Timor-Leste regulates in a considerably detailed manner different aspects of an arrest, including the objectives of an arrest (article 217), grounds for an arrest in and out of flagrante delicto (articles 218, 219 and 220), procedure for requesting and issuing a warrant of arrest (article 221) as well as the grounds for releasing a person under arrest (article 223).

In attempting to define what constitutes an arrest, the CPC of Timor-Leste identifies the legal purpose of an arrest. According to article 217, arrest aims at bringing an accused person before a Judge for his first interrogation, or to bring him/her for an expedited trial or to ensure a person’s immediate presence before a judicial authority as part of a procedural act. In interpreting article 217(1)(a) it is possible to consider that detention can be aimed at taking the first steps in a criminal proceeding for those suspected of having committed an offence; article 217(b) together with 217(2) allows for the arrest of other participants of the proceeding, not only an accused, so as to ensure their presence before a judicial authority. Article 217 further establishes that a detention as a consequence of an arrest cannot last longer than 72 hours.

Article 53 of the CPC states that an arrest can also be aimed at establishing the identity of a suspect. However, when an arrest is made to allow the identification of a suspect the legal time limit for detention is substantially decreased to a maximum of 12 hours.

The CPC of Timor-Leste does not give a definition of arrest. In terms of the Body of Principles an arrest is “the act of apprehending a person for the alleged commission of an offence or by the action of an authority”. 27

According to the CPC a person can be arrested following a warrant of arrest or without a warrant when caught in flagrante delicto or when the urgency of the circumstances requires an arrest without warrant.

Following the pattern of Criminal Procedure Codes of other CPLP members, the Timorese CPC does not regulate the use of force by police authorities during an arrest. In Timor-Leste, the Organic Law of the National Police of Timor-Leste, Decree Law 8/2004– article 5 –sets the general framework for the use of force by the PNTL.

1.1.1 Arrests with a Warrant The issuing of a warrant of arrest and the procedure for its execution are regulated by article 221.

It is in the exclusive competence of a Judge to issue a warrant of arrest (article 220(1) and 226(1)(f)). The public prosecutor cannot issue a warrant of arrest, but can, under conditions set by article 220(2), order an arrest. The wording used in article 220(1) differs from provisions establishing the competence to issue a warrant

26 Human Rights Committee, General Comment No. 8, para. 1.

27 Body of Principles, Use of Terms.

Chapter III – Human Rights during Arrest and Preventive Detention

of arrest in others CPLP members, including Portugal 28 , Macau 29 and Cape Verde 30 ; which also empower the prosecutor in certain established circumstances to issue a warrant of arrest.

Article 221 establishes a list of information which must be included in the warrant of arrest (article 221(2)), as well as the obligation to provide the person being detained with the original of the warrant (article 221(3)). Failure to observe any of the conditions of article 221 renders the arrest unlawful (article 221(4)). In case an arrest is carried out unlawfully the detainee can be immediately released as provided

in article 223.

1.1.2 Arrest without a Warrant In accordance to the CPC, an arrest can be carried out without a warrant in two circumstances: when there is a flagrante delicto (articles 218 and 219) or when urgent (article 220(2)).

An arrest can be carried out without a warrant when:

Option 1: Flagrante Delicto: Person caught at the moment of committing an offence Option 2: Urgent Circumstances Conditions:

related to crimes with sentence of more than 3 years imprisonment or terrorism, violent or highly organized crimes strong indications person is trying to escape emergency and dangerous situation; no time to request warrant to a Judge

1.1.2.1 Arrest in Flagrante Delicto

A definition of flagrante delicto is important to provide certainty and predictability as

to when police authorities and others may arrest a person.

The definition of flagrante delicto is provided by article 219. The general rule is that flagrante delicto exists when a person is found committing or has just concluded committing an offence (article 219(1)). The concept of flagrante delicto is extended to include crimes in circumstances where a person is followed soon after the crime or the person is found with objects or signs which clearly show that s/he has just committed a crime or has taken part in it (article 219(2)).

According to article 218(1) a duty is imposed to any police authority to arrest a person who is found committing a criminal act if the criminal act is punishable with imprisonment. In order to understand the scope of this power one should identify the type of crimes which are punishable with imprisonment in accordance with the applicable criminal law. In terms of the Draft Criminal Code of Timor-Leste imprisonment is identified as a possible sentence for every offence.

28 Article 257(1).

29 Article 240(1).

30 Article 268(1).

Chapter III – Human Rights during Arrest and Preventive Detention

In case a police authority does not carry out the arrest, s/he could be subject to disciplinary action since the non-fulfillment of a police official’s duty is considered as a disciplinary offence (article 4 PNTL Discipline Regulation – Decree Law 13/2004).

In respect of arrest in flagrante delicto of semi-public crimes 31 , article 218(4) provides that the continuation of the detention after the arrest is dependent on a complaint being filed immediately after the arrest. This provision is in line with the norm of necessity for the limitation of an individual’s right to liberty since semi-public crimes cannot be brought before a Court without formal complaint by the victim. It is important to note that the failure to file a complaint immediately after the arrest will result in the release of the person, but this would not prevent a future arrest of the suspect by means of a warrant of arrest after the right of complaint has been exercised.

According to article 212 police are required to record in a written form the circumstances under which an arrest in flagrante delicto was carried out .

The CPC of Timor-Leste also allows any individual to arrest a person who is caught in flagrante delicto in case police authorities cannot make the arrest (article 218(2)). In case an individual arrests another person, s/he is under the duty to deliver the arrested person immediately to police authorities (article 218(3)).

1.1.2.2 Arrest outside Flagrante Delicto The CPC of Timor-Leste provides under article 220(2) a second circumstance in which an arrest can be carried out without a warrant from a Judge.

Article 220(2) regulates the situations of urgency where a demand to request a warrant of arrest to a Judge would be in reality impractical.

Article 220(2) states:

Police authorities and Public Prosecution Service, or other agencies with a similar status, may order the arrest of the defendant other than in flagrante delicto where:

(a) preventive detention is admissible; (b) there exist strong indications that the defendant is preparing to escape legal action; (c) in an emergency and dangerous situation, the judge’s intervention would come too late.

The type of situation regulated by article 220(2) is often considered a valid ground since certain situations might call for a quick response from the police authorities.

The wording used in article 220, subsection 2 is unclear as to whether all or only one of the criteria need to be fulfilled to carry out an arrest without a warrant. In interpreting this provision, attention should be given to the general rule which requires the issuance of a warrant from a Judge (article 220(1)); only where there is no time to request a warrant, that use of other alternatives may be necessitated, therefore requiring urgency for all arrests without a warrant. Therefore, in order to carry out an arrest in terms of article 220(2) three conditions should be cumulatively fulfilled: a) related to an offence for which preventive detention can be imposed; b)

31 According to article 103 of the Draft Criminal Code, crimes are considered semi-public when the proceeding is dependant on a complaint by the victim.

Chapter III – Human Rights during Arrest and Preventive Detention

there is strong evidence showing that the accused is preparing to escape; and c) it is not possible because of the urgency and danger of a delay to wait for the intervention of a Judge. 32

The criteria identified above are not applicable to arrests outside flagrante delicto in relation to crimes of terrorism, violent and high organized crimes as per Decree Law x/2005 on Special Regulations for Cases of Terrorism, Violent and Highly Organized Criminality (see Chapter I, 3.1 Special Regulation for Cases of Terrorism, Violent and Highly Organised Criminality).

In relation to those crimes, article 3(1) of the Special Regulation provides that an arrest without a warrant can be carried out when: a) there is reasoned evidence of the imminent practice of a crime which endangers the life or integrity of any person; and b) it is not possible because of the urgency and danger caused by the delay to wait for the intervention of a Judge. Comparing the general grounds to those applied in relation to these specific crimes, the main change which can be identified is between the ground under article 220(1)(b) of the CPC - strong evidence showing the accused is preparing to escape – and that under article 3(1)(a) of the Special Regulation – reasoned evidence of the imminent practice of a crime which endangers the life or integrity of any person; the other criteria applicable in the general framework (pre-trial detention and urgency) are also required under the Special Regulation.

It is important to be aware that arrest under the circumstances set by article 220(2) of the CPC cannot be carried out in relation to all criminal offences. It only applies to offences for which preventive detention measures may be imposed (offences punishable with more than three years imprisonment (article 194(1)). Article 3(1) of the Special Regulation lays down that arrests without a warrant and outside flagrante delicto can be carried out in relation to the crimes enumerated under its article 2, which includes terrorism and other specific economic crimes, violent intentional crimes with punishment equal to or more than 8 years imprisonment.

To identify whether an arrest in terms of article 220(2) of CPC or article 3(1) of the Special Regulation was carried out according to the legal precepts will need to be undertaken on a case-by-case basis. A person’s right to liberty can be justifiably limited in case of necessity, proportionality and legality as per application of article 24 of the Constitution of Timor-Leste; urgency as well as danger to the safety of others under specific circumstances could definitely be considered as legitimate grounds for limiting a person’s right to liberty.

Institutions with Competence to carry out an Arrest According to Principle 2 of the Body of Principles, arrest shall only be carried out by competent officials or persons authorized for that purpose. As already highlighted, the criterion of non-arbitrariness of an arrest includes the elements of inappropriateness, injustice, lack of predictability and due process of law.

According to the CPC (article 220) and Special Regulation (article 3(1)) the following institutions are empowered to carry out or order an arrest outside a flagrante delicto:

carry out or order an arrest outside a flagrante delicto : Public prosecution services; 32 See

Public prosecution services;

32 See by contrast the inclusion of the word “cumulatively” in article 268(2) of the Criminal Procedure Code of Cape Verde and the word “and” in article 257(2) of the Portuguese Criminal procedure Code.

Chapter III – Human Rights during Arrest and Preventive Detention

Police authorities; orIII – Human Rights during Ar rest and Preventive Detention “Other agencies with similar status” In

“Other agencies with similar status” In order to understand the power given to th e public prosecutors service to carry In order to understand the power given to the public prosecutors service to carry out an arrest without a warrant and outside flagrante delicto (article 220(2)) tone can look at other national jurisdictions. In Portugal, Macau and Cape Verde, the public prosecutor has in certain circumstances the power to issue a warrant of arrest. As already highlighted above, the Timorese CPC does not give the public prosecutor the power to issue a warrant for the arrest of a suspect; however it empowers the public prosecutor to order an arrest in urgent matters in terms of article 220(2). In general, the public prosecution office will not be the authority carrying out the arrest; it will normally order the police authority to do so. In such cases, more attention is needed to assess whether the public prosecution officer did not have the time sufficient to request a warrant from a Judge.

A definition of the term “police authorities” is not included in the CPC of Timor-Leste or its Special Regulation 33 . Its interpretation could be guided by the definition given to the term in other legislation such as the Decree Law 8/2004 on the Organic Law of the National Police (article 6), which considers as police authorities an exhaustive list of high level authorities within the police structure, under the higher authority the General Commander of the PNTL.

Article 220(2) of the CPC and article 3(1) of the Special Regulation use the term “other agencies with similar status” as one of the authorities empowered to carry out an arrest. Similar to the term ‘police authorities’ the definition of this term is not included in the CPC. Clarification on this matter can be sought in other legislation in the Timorese legal system. Article 13 of the Internal Security Law (Law 8/2003) identifies ‘Security Forces and Services’ as the agencies responsible for internal security in Timor-Leste, which include PNTL and the State Security and Information Services. This implies that, in relation to article 220(2) of the CPC, the State Security and Information Services are also empowered to conduct arrests. The Defense Force would not be considered as “other agencies of similar status”, since according to the Internal Security Law it is not entrusted with the responsibility of “preventing criminal conduct, guaranteeing order and security as well as public peace” (article 1(1) of Internal Security Law) but is competent to guarantee the external security of the country 34 .

Article 222 of the CPC imposes a duty on the police authorities to immediately inform the public prosecution services of an arrest which was carried out without a warrant. In relation to an arrest carried out in terms of the Special Regulation, the police authorities need to inform the Judge instead of the public prosecution services of the arrest (article 3(2)). This duty to forward information on the arrest does not exempt the police from bringing the arrested person before a Judge within 72 hours from arrest (see below 1.3 The Right to be Promptly Brought before a Judge).

1.2. THE RIGHT TO BE PROMPTLY INFORMED OF REASONS FOR ARREST AND CHARGES

Article 9(2) of the ICCPR provides that “anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him”. Similar standards are stipulated by Principle 10 of the Body of Principles.

33 The criminal procedure codes of Macau and Portugal include a definition as to what is to be meant the expression “criminal police authority” in their mirror article.

34 See Organic Law of the Falintil – Defence Forces of Timor-Leste, Decree Law No. 7/2004, 5 May 2004.

Chapter III – Human Rights during Arrest and Preventive Detention

The rationale for this guarantee is to enable a detained individual to request a prompt decision from a competent judicial authority on the lawfulness of his detention 35 .

On this issue the Timorese Constitution is, in comparison with the international instruments, more specific in its wording. Article 30(3) provides that “[e]very individual who loses his freedom shall be immediately informed, in a clear and precise manner, of the reasons for his or her arrest or detention” (emphasis added). Different from the ICCPR, the Timor-Leste Constitution identifies with precision the time when a person should be provided with information on the reasons for the arrest since it requires under article 30(3) that information is given “immediately”.

In this provision, the Constitution clearly adopts the view of the Human Rights Committee, requiring the authorities to inform in considerable detail the reasons for the arrest; the information provided needs to be sufficient for the person under arrest to understand with clarity the offence for which s/he is being arrested. 36

Article 60(b) of the CPC considers that an accused has the right to be “informed of the acts being imputed to him and of the rights to which he is entitled, whenever asked to make statements”. Article 62(4) further reiterates this position by requiring that an accused receives information of the facts imputed to him/her prior to interrogation. In order to implement this provision in accordance with the Constitution authorities should also be obliged to provide information to the accused at the time of the arrest and not only when the accused is requested to make statements or be interrogated.

Aiming at effectively implementing the duty to inform an arrested person of the reasons for the arrest, States may have to resort in certain circumstances to assistance from interpreters. As expressly stated in Principle 14 of the Body of Principles, “a person who does not adequately understand or speak the language used by the authorities responsible for the arrest, detention or imprisonment is entitled to receive promptly in a language which he understands information regarding, inter alia, the charges against him and the records of his arrest”.

As highlighted above, when an arrest is carried out without a warrant a duty is imposed on the arresting authority to inform the person under arrest of the reasons thereof. However, when the arrest is carried out with a warrant, the role of the police authority is limited to ensuring that the arrested person understands the information contained in the warrant, since information about the offence should be included in the warrant (article 221(2)(b)). In case the warrant is written in one of the official languages which is not mastered by the person under arrest or s/he is illiterate, the arresting authority should be under the duty to inform orally in a language understood by the arrested person the reasons for the arrest.

35 Human Rights Committee Communication No. 248/1987, G. Campbell v. Jamaica, 30 March 1992, para. 6.3.

36 See for example Human Rights Committee Communication No. 43/1979. Drescher Caldas v. Uruguay, 21 July 1983, paras. 12-13; Communication No. 253/1987, Kelly v. Jamaica, 8 April 1991, para. 5.

Chapter III – Human Rights during Arrest and Preventive Detention

1.3. RIGHT TO NOTIFICATION OF RIGHTS AND RIGHT TO ACCESS A LAWYER

In order to exercise one’s rights, one must know that they exist. Everyone arrested person has the right to be informed of his/her rights and receive an explanation on how to avail of such rights (principles 13 and 14 Body of Principles), including the right to have access to a lawyer (principle 5 Basic Principles on the Role of Lawyers and Principle 17(1) of the Body of Principles).

Article 30(3) of the Constitution of Timor-Leste states that every arrested person shall be informed immediately and in a clear and precise manner about his rights, and be allowed to contact a lawyer directly or through a relative or trusted person. This Constitutional provision is reflected in the CPC through articles 60(b), 60(d) and 60(g) which recognize respectively the entitlement of an accused to receive information on his/her rights, to be assisted by a lawyer when s/he requests and to have a family member or another person informed of his/her arrest.

In the CPC it can be identified the right of an accused to be assisted by a lawyer after an arrest, since article 60(d) provides that an accused can be assisted by a lawyer when s/he requires so. Regard should be made to the fact that the CPC does not consider as compulsory the legal assistance during the detention followed by an arrest. (see Chapter V, 6. The Right to Defend oneself in Person or through a Lawyer of one’s own Choice)

1.4 THE RIGHT TO BE PROMPTLY BROUGHT BEFORE A JUDGE

Article 9(3) of the International Covenant on Civil and Political Rights requires that after a person is arrested s/he has to be brought promptly before a Judge or other authority with judicial power. 37 According to the Human Rights Committee the purpose of this entitlement is to bring the detention under judicial control. 38 It further aims at protecting the individual against arbitrary interferences by the State with his/her right to liberty.

According to the Constitution of Timor-Leste, an arrested person should always be presented before a competent judge within the applicable legal timeframe (article 30(2)). The clear indication by the Constitution provides no doubts as to which authority an arrested person should be presented to. At the same time this provision is clearly in line with international human rights standards on this specific issue. 39

In relation to the timing for the presentation of a person before a Judge, the Constitution indicates only that this should be done within the legal timeframe. In view of the direct application of ICCPR into national jurisdiction, the legal timeframe in this case shall be based on the requirement of promptness in terms of article 9(3) of ICCPR.

The CPC of Timor-Leste provides that an arrested person should be brought before a judge within 72 hours of the time of arrest (article 63). This same timeframe is further mentioned in numerous articles throughout the CPC, for example in articles 60(a) and 223(1)(b) and 205(2)(c).

37 See also principle 11(1) of Body of Principles

38 Human Rights Committee Communication No. 521/1992, V. Kulomin v. Hungary, 22 March 1996, para. 11.2. See also principle 4 of Body of Principles.

39 See for example Human Rights Committee Communication No. 521/1992, Kulomin v. Hungary, 22 March 1996, para. 11.3; Human Rights Committee Communication No, 726/1996, Zheludkov v. Ukraine, 29 October 2002.

Chapter III – Human Rights during Arrest and Preventive Detention

Notice should be taken of the fact that article 63(1) mentions that the police authority is under a duty to bring a person before a Judge within 72 hours of the arrest when the arrest had been carried out in flagrante delicto. At first sight, the interpretation of this provision could mean that only those arrested in flagrante delicto need to be brought before a Judge within 72 hours. Such an interpretation would however run counter to other provisions included in the CPC including articles 60(a), 217, 223(1)(b), 226(3), 205(2)(c) as well as the preamble of the CPC.

Although the term “promptly” must, according to the Human Rights Committee, “be determined on a case-by-case-basis”, the delay between the arrest of an accused and the time before s/he is brought before a judicial authority “should not exceed a few days”. 40 “Prompt” is understood to refer to a time which does not include any considerable delay and that reflects the authorities’ attempt to bring an arrested person before a Judge as soon as possible. 41

In the CPC of Timor-Leste, the process to bring an arrested person before a Judge within the established 72 hours is called ‘the first interrogation of an arrested accused’ and is regulated by article 63 of the Code.

According to article 63(2) one of the overall objectives of the ‘first interrogation of an arrested accused’ is to assess the basis for the arrest as well as the need, if any, for ordering the accused to be under preventive detention (see Chapter III, 2. Preventive Detention). This process is based on an adversarial hearing where the presence of a legal representative is compulsory (article 63(3)). This procedure often provides a detained person with his first opportunity to challenge the lawfulness of his detention and to secure release if the arrest violated his rights.

Article 223 Releasing a Person under Arrest

1. Any entity who has ordered an arrest or to whom the person under arrest has

been delivered shall release the latter immediately:

(a) as soon as it becomes evident that the arrest was carried out in a

situation of mistaken identity;

(b) if it has been carried out outside the cases and the conditions provided

in the law, such as in the cases where the 72 hours period to present the detained has been exceeded; (c) as soon as it becomes unnecessary. 2. Release is preceded by a writ if the arrest has been ordered by the public prosecutor or the judge and, in the case of another entity, through the subsequent preparation of a report to be attached to the case file.

3. Any release carried out on the initiative of any police entity, before the person

under arrest has been presented to the judge, must be notified to the public prosecutor, under the penalty of disciplinary liability.

(emphasis added)

40 Human Rights Committee General Comment 8, para. 2.

41 See for example Human Rights Committee Communication No. 625/1995, M. Freemantle v. Jamaica, 24 March 2000, para. 7.4; Human Rights Committee Communication No. 373/1989, L. Stephens v. Jamaica, 18 October 1995, para. 9.6.

Chapter III – Human Rights during Arrest and Preventive Detention

1.5 IMMEDIATE RELEASE FOR UNLAWFUL OR ARBITRARY ARREST

Giving a strong positive step, the CPC of Timor-Leste in article 223 establishes a process for the immediate release of an arrested person in cases of arbitrariness or unlawfulness. Article 223 imposes on any authority who ordered the arrest or any authority to which an arrested person has been presented to immediately release him/her in specific circumstances, including where the legally established criteria and limits have not been respected (article 223(1)(b)) or when the arrest becomes unnecessary (article 223(1)(c)). In practice these could include, for example, in situations a misunderstanding by the police that there was a flagrante delicto when there was none in reality therefore not following the criteria in article 219; or in cases outside flagrante delicto where there is a wrong assessment of the existing danger of flight (not reaching the level of strong suspicion as required by article 220(2)(b)) or where the police mistakes the kind of offence and arrests someone without warrant and outside flagrante delicto in relation to offence which carries less than 3 years imprisonment therefore not following the criteria laid down by article

220(2)(a).

In practice the application of this article establishes an immediate review of the arrest. This provision can represent a very important step, the implementation of which has the potential to assist in decreasing the number of arbitrary arrests in the country.

Release of a person on the basis of article 223(1)(a) and (b) means that the arrest was in reality unlawful; as a result the person arrested is entitled to request compensation as per article 351 of the CPC (see Chapter III, 4. Compensation for Unlawful Deprivation of Liberty).

Subsections 2 and 3 of article 223 are also important to complement the overall effectiveness of article 223. According to article 223(2) if the judicial authority decides to release an arrested person s/he has first to make a written order. If the release was ordered by the police a written report needs to be compiled as required by article 223(2). This documentation can be of considerable importance for the arrested person in his/her claim, if any, for compensation for unlawful detention.

Article 223(3) requires the police to inform the public prosecution services if an arrested person is released before being presented to a Judge as a result of the application of article 223, failure of which can result in disciplinary liability. The inclusion of subsection 3 is, in the reality of the Timorese criminal system, a positive step; the obligation to communicate the release of an arrested person to the public prosecution provides for a certain level of monitoring of police activities.

The provisions in article 223 are an addition to other mechanisms available to challenge the legality of an arrest, such as habeas corpus application or an appeal (see Chapter III, 3. The Right to Challenge the Lawfulness of an Arrest or Detention before a COURT).

In case any authority fails to release the accused once the 72 hours period after arrest has expired, s/he could be held criminally responsible for the offence of illegal detention as per article 156 of the Draft Criminal Code.

Chapter III – Human Rights during Arrest and Preventive Detention

Human Rights Standards Article 9 Universal Declaration of Human Rights Articles 9(1), 9(2) International Covenant on Civil and Political Rights Article 2 Convention against Torture Principles 2, 13, 14 and 17 Body of Principles Principle 5 Basic Principles on Role of Lawyers Articles 30 Constitution of RDTL

Relevant Provisions of CPC Articles 53, 60, 63, 68, 194, 205, 217, 218, 219, 220, 221, 222, 223, 226 and 351 Article 3 Special Regulation on Terrorism, Violent and Highly Organized Criminality

2. PREVENTIVE DETENTION

People awaiting trial on criminal charges should not, as a general rule, be held in custody. In accordance with the right to liberty and the presumption of innocence, there is a presumption that people charged with a criminal offence will not be detained before or during their trial process.

International standards explicitly recognize that there are, however, circumstances under which the authorities may impose conditions on a person’s liberty or detain an individual pending trial.

As per article 9(1) of the ICCPR a preventive detention (or detention on remand) is only legitimate if it is lawful and necessary in a particular case. The same criteria of lawfulness and lack of arbitrariness discussed under Section 1 apply here. As already mentioned in the previous section, “‘arbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law”. 42

Article 9(1) of the International Covenant on Civil and Political Rights Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

Article 30(2) of the Constitution of Timor- Leste also provides for preventive detention. According to this constitutional provision, no one shall be detained except under the terms clearly provided for by applicable law. As it is applicable to every fundamental right, any limitation to the right to liberty has to be proportional and necessary as per application of article 24 of the Constitution.

42 Human Rights Committee Communication No. 458/1991, A. W. Mukong v. Cameroon, 21 July 199), para. 9.8.

Preventive detention in Timor- Leste can be applied when 4 conditions are met:

fear accused will escape/disturb investigation/continue committing the crime/represents danger disturb public order and peace related to crimes with sentence of more than 3 years imprisonment strong evidence accused committed intentional crime other alternatives (bail, periodic report, house arrest, etc) are inadequate or insufficient See below at p.35

Chapter III – Human Rights during Arrest and Preventive Detention

Article 181(2) of the CPC stipulates in clear terms the principle of legality for the imposition of any coercive measure, including preventive detention. It provides that “applicable coercive measures are exclusively those provided in the law and may only be applied to meet procedural requirements of a preventive nature”.

2.1 EXCEPTIONAL NATURE OF DETENTION

Liberty is the rule, to which detention must be the exception. This standing is expressly provided by article 9(3) of the ICCPR.

The Human Rights Committee has reiterated the exceptional nature of detention and complemented it by stating that pre-trial detention should be as short as possible 43 . In addition to the Human Rights Committee, other mechanisms, including the Committee against Torture, have re-affirmed this principle. 44

Rule 6.1 of the Tokyo Rules provides that “pre-trial detention shall be used as a means of last resort in criminal proceedings, with due regard for the investigation of the alleged offence and for the protection of society and the victim”.

The Timorese CPC provides clearly and unequivocally that preventive detention is a measure of last resort. In accordance with article 194(1)(b), preventive detention can only be imposed if all other measures are shown not to be adequate. This means that a Judge will have to justify the imposition of a preventive detention by providing reasons showing why other measures are not adequate in a specific case.

Following the principle of last resort, the CPC also provides that preference should be given to a measure which causes less interference with the normal exercise of a person’s fundamental freedoms (article 182(c)). However, the imposition of preventive detention is dependant on meeting more criteria than the imposition of other measures; thus meaning in practice that it is more difficult to impose preventive detention than any other coercive measure.

2.1.1 Alternatives to Detention In order to effectively impose preventive detention as a measure of last resort, the law should provide for other mechanisms which could be imposed on an accused so as to ensure his/her presence during the trial.

Article 9(3) of the ICCPR provides that a non imposition of detention may be conditioned by guarantees to appear for trial.

The CPC provides for a range of measures which can be applied to an accused other than detention pending trial (articles 186 to 193).

In addition to preventive detention, the measures which can be imposed to an accused are: a) proof of identity and residence, b) bail provision, c) periodic reporting, d) prohibition of leaving the area of residence or the country, and e) house arrest. Clear guidelines and instructions to assist the Court in deciding on which measure to impose are provided by the CPC.

43 Human Rights Committee General Comment No. 8, para.3.

44 Committee against Torture Concluding Observations, Venezuela, CAT, A/58/44 (2002) 32 at para. 76; and Human Rights Committee Concluding Observations Russian Federation, ICCPR, A/50/40 vol. I (1995) 65 at paras. 377 and 379.

Chapter III – Human Rights during Arrest and Preventive Detention

Proof of identity and residence must, according to article 186, be required of every accused, the imposition of other measures is dependant on the circumstance of each case, including the seriousness of the offence.

The provision of bail (articles 187 to 190) can be imposed in respect of any offence punishable by imprisonment. In the Draft Criminal Code, for every offence there is a possible imprisonment. Therefore in the reality bail can be imposed in any criminal case in Timor-Leste. The socio-economic circumstances of the accused and the gravity of the criminal offence need to be taken into account in identifying the amount of the bail. In case the accused shows his/her inability to pay the bail, article 188 allows a Judge to substitute the bail with another measure, excluding the imposition of preventive detention.

Obligation to appear regularly before a judicial or police authority on determined days and time is regulated by article 191. The identification of the authority and the timing for the reporting, have to take into account the professional demands and the place of residence of the accused. This measure may be applied in cases where the offence is punishable with imprisonment in excess of one year.

Article 192 allows for the imposition on the accused of a restriction on leaving the area of residence or the country. Restricted residence or prohibition of absence may be applied to intentional offences carrying a punishment of imprisonment of more than three years. House arrest can also be imposed in relation to the same kind of offences; however article 193 requires that house arrest be imposed only when there is strong proof against the accused. Article 192 and 193 provides the possibility for an accused to receive authorization to leave his/her residence, country or home. The process for an accused to request such authorization is, however, not included in the CPC.

Apart from proof of identity and residence, all these measures can only be imposed by decision of the Court at the request of the public prosecution service (article

184(2)).

The imposition of any of these measures must always be in accordance with the criteria of necessity and proportionality. Article 183, which establishes the general rules governing coercive measures, stipulates that no measure may be applied, except the proof of identity and residence, unless the accused has fled or there is a risk that the accused will flee , a risk of interference with the investigation or destruction of evidence or danger of continuation of the crime or jeopardy to the maintenance of public order and public peace. If one of these conditions exists a Judge can impose bail, periodic reporting, restriction to leave the area of residence or country or house arrest as a means to ensure the presence of the accused at his/her trial.

Measures such as the suspension of duties, occupation or specific rights or prohibition on contacting certain persons, such as witnesses or victims, are not expressly provided by the CPC.

2.2 GROUNDS FOR PREVENTIVE DETENTION

For preventive detention to be in accordance with constitutional and international standards, the detention must be reasonable and necessary in the circumstances.

Chapter III – Human Rights during Arrest and Preventive Detention

The ICCPR allows authorities to hold people in custody as an exceptional measure if

it is necessary to ensure that the person will appear for trial; the term “necessity” is

often interpreted narrowly. The Human Rights Committee has held that solely a

suspicion that a person has committed a crime is not sufficient to justify detention pending investigation and indictment. However, it has held that custody may be necessary to prevent flight of the accused, avert interference with witnesses and evidence, or to prevent the commission of other offences. 45 According to the CPC applicable in Timor-Leste, preventive detention can be ordered only if four requirements are met:

1) reasoned fear of flight, or reasoned fear that the investigation will be disturbed or reasoned fear of continuance of committing crime or danger of disturbing the public order and public peace (article 183), and

relates to a crime which can be punishable with more than three years

imprisonment (article 194(1)(a)), and 3) strong evidence that the accused committed an intentional crime (article 194(1)(a), and 4) inadequacy or insufficiency to impose any other coercive measures (article

2)

194(1)(b)).

Regard should be given to the fact that the imposition of another coercive measures other than preventive detention, for example regular reporting or house arrest, only one of the requirements under number 1 above needs to be fulfilled.

In relation to preventive detention, considerable changes were introduced to the UNTAET Transitional Rules of Criminal Procedure on this matter. The UNTAET Transitional Rules did not identify a minimum punishment of the offence was not present in the. Also the grounds for the assessment of evidence has substantially changed; the Transitional Rules required sufficient evidence to support a reasonable belief (article 20(7)(b)), the CPC requires the existence of strong evidence (article

194(1)(a)).

According to article 194(3) the decision to impose preventive detention will be preceded or followed by listening to the accused where it is ‘feasible’ for a hearing to take place.

On initial reading, this provision could be understood as preventing an accused from challenging the decision of a Judge to impose preventive detention. However, when interpreting this provision together with other provisions, it is important to note that for those accused who had been arrested by the police authorities, a hearing will invariably take place by application of article 63(2). Also it would be clearly ‘feasible’ to hear an accused when a Judge assesses the need for imposing pre-trial detention during a trial hearing.

A number of options are given to an accused who wants to challenge the imposition

of a preventive detention: filing an appeal (article 204), submitting habeas corpus application (article 205) or through a more ‘informal’ request directly to the Judge who ordered the detention as per article 197. (see Chapter III,

45 See Human Rights Committee Communication No. 305/1988, Van Alphen v. the Netherlands, 23 July 1990, para. 5.8; Communication No. 458/1991, A. W. Mukong v. Cameroon, 21 July 1994, para. 9.8. See also Human Rights Committee Communication No. 432/1990, W. B. E. v. The Netherlands, 23 October 1992; Communication No. 526/1993, M. and B. Hill v. Spain, 2 April 1997.

Chapter III – Human Rights during Arrest and Preventive Detention

3. The Right to Challenge the Lawfulness of an Arrest or Detention before a COURT)

2.2.1 Imposition of Preventive Detention for Reasons of Mental Health Article 194(4) of the CPC provides that an accused suffering from a mental disorder shall, “where the requirements for the imposition of pre-trial detention are met and as long as such a disorder persists, be preventively admitted to a psychiatric hospital or other appropriate establishment, for the period of time deemed necessary for the imposition of such a provisional measure”.

According to the Human Rights Committee the prohibition of arbitrary detention applies to everyone, including those with mental illness. 46

Article 194(4) of the CPC means in practice that if an accused, who has been ordered to await trial in detention, suffers from mental illness, she will not be detained in the ordinary penitentiary system but will instead be placed in a psychiatric hospital or other establishment which is appropriate for her condition. Periodic review for the reasons for detention as provided by article 196 is also applicable in relation to those detained under article 194(4).

The issue of mental illness and criminal capacity is included in articles 93 to 97 of the Draft Criminal Code.

2.2.2 Imposition of Preventive Detention of Illegal Immigrants, Asylum Seekers and for purposes of Deportation and Extradition Article 194(2) states that pre-trial detention can be extended to a person who “unlawfully enters or remains on the national territory or against whom an extradition or expulsion process has been initiated, under the terms to be regulated by a specific law”. Differently from the provision applicable to persons with mental illness, article 194(2) does not require that the conditions for the imposition of preventive detention be satisfied.

The Human Rights Committee is of the opinion that the detention of individuals requesting asylum is not per se contrary to article 9(1) of the ICCPR. However, it has stated that “every decision to keep a person in detention should be open to review periodically so that the grounds justifying the detention can be assessed”. 47 In any event, detention should not continue beyond the period for which a State can provide appropriate justification. For example, the fact of illegal entry may indicate a need for investigation and there may be other factors particular to the individual, such as the likelihood of absconding and lack of cooperation, which may justify detention for a period. Without such factors detention may be considered arbitrary, even if entry was illegal”. 48

The Asylum and Immigration Law (Law 9/2003) regulates the entry of persons in Timor-Leste and includes provision regarding the process which is applicable in cases described in article 194(2) of the CPC.

2.3 LEGAL TIMEFRAME FOR PREVENTIVE DETENTION

Article 9(3) of the ICCPR provides that everyone detained shall be entitled to a trial within “a reasonable time” or be released pending trial; principle 38 of the Body of

46 Human Rights Committee General Comment No. 8, para.1.

47 Human Rights Committee Communication No. 560/1993, A. v. Australia, 3 April 1997, paras. 9.3 and 9.4.

48 Ibid, para. 9.4

Chapter III – Human Rights during Arrest and Preventive Detention

Principles provides a similar guarantee. This is a protection directly related to the fact that everyone charged with a crime has the right to be presumed innocent until proven guilty and of the fact that deprivation of liberty must be an exceptional measure.

A release from detention on the grounds that the trial has not started within a

reasonable time does not mean that charges must be dropped; rather, article 9(3) provides for the release from detention pending trial. Article 9(3) of the ICCPR states that the release of an accused may be conditional on guarantees of the person’s appearance for trial.

The Human Rights Committee has held that “what constitutes ‘reasonable time’ is a matter of assessment for each particular case” 49 . However, a lack of “adequate budgetary appropriations for the administration of criminal justice does not justify

unreasonable delays in the adjudication of criminal cases” 50 . Factors considered in examining the reasonableness of a period of pre-trial detention include: the seriousness of the offence alleged to have been committed; the nature and severity

of the possible penalties; and a danger that the accused will abscond if released.

Account should also be given as to whether the national authorities have displayed “special diligence” in the conduct of the proceedings, the complexity and special characteristics of the investigation, and whether continued delays are due to the conduct of the accused (such as refusing to cooperate with the authorities) or the prosecution.

According to the Committee against Torture, a maximum period for pre-trial detention should always be provided by law. 51 The Committee against Torture and the Human Rights Committee have expressed concern to States such as Namibia 52 , Poland 53 and Portugal 54 who allow pre-trial detention for a period of up to one year. 55

According to article 80 of CPC, the Courts should give priority to cases which accused are in pre-trial detention. It is generally recognized that cases with detained accused should in generally be concluded quicker than those cases related to accused not in detention.

The maximum period for preventive detention in Timor-Leste is provided by article 195 of the CPC. Article 195 provides the following timeframes:

(a)

up to one year without the presentation of an indictment;

(b)

up to two years without a first-instance conviction;

(c)

up to three years without a final conviction or three and a half years when

there is an appeal over constitutionality

All these timeframes can be increased with 6 months in case of exceptional complexity (article 195(2)). The extension will only be allowed with a reasoned decision of a Judge. What is to be considered a case of exceptional complexity will

49 Human Rights Committee Communication No. 336/1988, N. Fillastre v. Bolivia, 5 November 1991, para. 6.5.

50 Ibid.

51 Committee against Torture Concluding Observations Panama, CAT, A/53/44 (1998) 22 at para. 218.

52 Committee against Torture Concluding Observations Namibia, CAT, A/52/44 (1997) 35 at paras. 237 and 245.

53 Human Rights Committee Concluding Observations Poland, ICCPR, A/54/40 vol. I (1999) 65 at para. 351.

54 Human Rights Committee Concluding Observations Portugal, ICCPR, A/58/40 vol. I (2003) 56 at para. 83(14).

55 See also Human Rights Committee Communications McLawrence v. Jamaica, 29 September 1997; and Communication No. 473/1991, del Cid Gómez v.Panama, 19 July 1995.

32

Chapter III – Human Rights during Arrest and Preventive Detention

depend on the offence and the circumstances. As per article 201 of the CPC, in order to identify specific time limit in a case, one has to start counting from the first day of detention, which in cases where an arrest has been carried out means in practice from the time of the arrest.

3 ½ years 3 years 2 years 1 year 6 months 72hours ARREST 1st REVIEW
3 ½ years
3 years
2 years
1 year
6 months
72hours
ARREST
1st
REVIEW
PRESENTATION
DECISION
REVIEW
FINAL DECISION
DECISION
REVIEW
INTERROGATION
DETENTION
INDICTMENT
Court First Instance
ON APPEAL
ON APPEAL
DETENTION
DETENTION
ACCUSED
CONSTITUTIONALITY
REVIEW
REVIEW
DETENTION
DETENTION

The time periods as described above represent the maximum time for the preventive detention; it does not mean that every accused will be detained for at least a year before the indictment is filed with the Court. As already highlighted the lengthy of detention needs to be necessary in all cases.

Article 195(3) provides that once the time limits have elapsed, the defendant must be released immediately (except where the defendant is due to remain in prison on account of another case). This provision aims at guaranteeing that there will not be any preventive detention outside the scope of the law. The clear wording of this provision is an encouraging step; there was no such provision in the UNTAET Transitional Rules of Criminal Procedure.

2.3.1 Periodic Review The ground for justifying preventive detention of an accused needs to be regularly reviewed. Although certain identified risk might be genuine at the outset of the detention, it may gradually diminish, or even disappear altogether. The Body of Principles in principles 11.3 and 39 requires the establishment of a mechanism to regularly review a preventive detention of the. According to the Human Rights Committee, the review shall be made by an independent and impartial authority. The Committee considered that a review of a pre-trial detention by a prosecutor was not in accordance with article 9(3) of ICCPR. 56

Article 196 of the CPC regulates the procedure for the periodic review of preventive detention. According to this provision a Judge shall review the basis of a preventive detention every six months. In this procedure, the accused has an opportunity to provide his/her opinions in writing to the Judge. In addition to the periodic review, an accused can also make use of the procedure provided under article 197, which allows him/her to request the Judge at any time to release him/her on the basis that the circumstances which justified the imposition of the detention no longer exist.

56 Human Rights Committee Concluding Observations Belarus, ICCPR, A/53/40 vol. I (1998) 26 at para.146.

Chapter III – Human Rights during Arrest and Preventive Detention

Human Rights Standards Article 9 Universal Declaration of Human Rights Articles 9(1) and 9(3) International Covenant on Civil and Political Rights Article 2 Convention against Torture Principles 11, 38 and 39 Body of Principles Rule 6.1 Tokyo Rules Articles 30 Constitution of RDTL

Relevant Provisions of CPC Articles 63, 80, 151, 181, 182, 183, 184, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197 and 205

3. THE RIGHT TO CHALLENGE THE LAWFULNESS OF AN ARREST OR DETENTION BEFORE A COURT

Everyone deprived of his/her liberty has the right to challenge the lawfulness of their detention before a court, and have the detention reviewed on a regular basis. The aim of this kind of guarantee is to afford protection against arbitrary detention and/or consequent human rights violations.

At the international level, Article 9(4) of the ICCPR is the main provision in this area, and it states:

“Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.”

Principle 32 of the Body of Principles further reinforces this guarantee.

International law does not prescribe a certain type of procedure which should be established for challenging the lawfulness of an arrest or detention. However, the Human Rights Committee has developed some guidelines, identifying certain conditions which must be met irrespective of the procedure in place. The procedure should: a)be of a judicial nature; and b) must deal with the question without undue delay. 57 The rationale for requiring that a Court reviews the lawfulness of detention is based on the need to ensure an independence and objectivity of the assessment. 58

The review of the lawfulness of the detention must ensure that the detention was carried out according to the procedures established by law, and that the grounds for detention were authorized by law. The review mechanism must thus assess both the substantive and the procedural rules in relation to deprivation of liberty 59 . Courts shall also ensure that the detention is not arbitrary according to international standards.

The Constitution of Timor-Leste does not contain any provision worded similarly to article 9(4) of the ICCPR, but it specifically includes the provision of habeas corpus,

57 Human Rights Committee Communication No. 560/1993, A. v. Australia, 3 April 1997, para. 9.5.

58 Human Rights Committee Communication No. 291/1988, Torres v. Finland, 2 April 1990, para. 7.2. See also Human Rights Committee Communication No. 265/1987, Vuolanne v. Finland, 7 April 1989.

59 See for example Human Rights Committee Communication No. 560/1993, A. v. Australia, 3 April 1997, para. 9.5.

Chapter III – Human Rights during Arrest and Preventive Detention

thereby giving this procedure a constitutional status. A general entitlement to access to the courts is found under article 26 of the Constitution which reflects the constitutional basis for all other procedures in this area included in the new CPC. The choice of mechanism will depend on the circumstances of each case and the options before the detained person.

In Timor-Leste lawfulness of detention can be challenged by:

Habeas Corpus application (article 205) Direct Request Judge: ‘Article 197 Request’ Periodic Review of Detention (every 6 months) (article 196) Appeal (article 204)

3.1 HABEAS CORPUS APPLICATION

Habeas corpus application is a procedure widely used in various countries, including Cape Verde and Portugal.

It often represents a simple and expeditious procedure without much formality and based on the physical presentation of the detained person before a Judge. An habeas corpus application follows the principle laid down in principle 32.2 of the Body of Principles which expressly identifies this necessity of presenting the detained person before a Judge. This aspect represents an important mechanism in the fight against enforced disappearances. Through an habeas corpus application a Judge can have information on the whereabouts and state of health of detainees as well as on who is responsible for ordering and carrying out their detention. 60

Habeas Corpus is included in the section on personal rights, liberties and guarantees of the Timorese Constitution. Article 33 of the Constitution reads:

1. Everyone who illegally loses his or her freedom has the right to apply for

habeas corpus.

2. An application for habeas corpus shall be made by the detainee or by any

other person in the exercise of his or her civil rights, in accordance with the

law.

3. The court shall rule on the application for habeas corpus within 8 days at

an adversarial hearing.

The habeas corpus application is regulated in more detail by articles 205 to 207 of the new CPC.

In terms of the CPC, some of the main features of this procedure are:

Applicable to both illegal arrest and illegal preventive detention (articlethe CPC, some of the ma in features of this procedure are: 205(1)) Application can be

205(1))

Application can be filed by the detained person or any other person (articlearrest and illegal preventive detention (article 205(1)) 205(1)) Jurisdiction is exercised by the Supr eme Court

205(1))

Jurisdiction is exercised by the Supreme Court of Justice (article 12(2)(e)) eme Court of Justice (article 12(2)(e))

The grounds for an habeas corpus application are laid down in article 205(2): (a) detention carried out by an authority without competence, (b) detention was based on a ground not provided by law, (c) expiration of the detention’s established timeframe, or (d) person being detained in a place not authorized by law. The grounds as enumerated thus include both procedural as well as substantive grounds.

60 Article 9(1) of the Declaration on Disappearances.

35

Chapter III – Human Rights during Arrest and Preventive Detention

Article 205 does not mention the lack of recording of the detention as a ground for filing habeas corpus application. This omission exists even though lack of recording of a detention amounts to a presumption of illegality in terms of article 351.

One of the positive characteristics of the habeas corpus application is that it can be used by persons either under detention following an arrest or preventive detention and can be made at any time during the criminal proceedings.

An habeas corpus application regarding an alleged illegal arrest (article 205(2)(b)) has to be evaluated against the grounds for arrest found in articles 218 (arrest in flagrante delicto) or article 220 (arrest not in flagrante delicto). As it relates to an application against an unlawful preventive detention, the Judge hearing the habeas corpus application has to evaluate as to whether the criteria contained in articles 183 and 194 were met in the circumstances.

Article 205(2)(c) follows the general pattern previously highlighted in this Guide that once the 72 hours period for police custody has expired the person should be released (article 223(1)(b)). In case of continued detention, recourse can be taken to file an habeas corpus application. The consideration of detaining a person in a place not authorized by law as a ground for an habeas corpus application (article 205(2)(d)) represents an important step to prevent disappearances as provided by article 10 of the Declaration against Enforced Disappearances.

Simplicity and few formalities should be qualities of an habeas corpus application so as to be effective as possible. Clear guidelines should be written so as to allow any person to bring an application on behalf of someone held in detention.

The procedure for an habeas corpus application is laid down in article 206. It involves the exchange of information between the applicant, the authority who has the detained person, the public prosecution services and the Supreme Court of Justice. Specific timelines are imposed; the authority having custody of the detained has 24 hours to reply to the habeas corpus application (article 206(1)); 48 hours is the time available for the public prosecutor to submit to the Court any information which s/s/he might possess (article 206(2)). After this exchange of information is completed, the Supreme Court of Justice, presided over by its President, has to deliver the decision within 5 days (article 206(3) and (4)).

In comparing the rules in the new CPC with the Transitional Rules of Criminal Procedure, it can be seen that the timeframe for handing down a decision on an habeas corpus application has increased from 24 hours under UNTAET Regulation 61 to a 5 days period in the CPC. Irrespective of the change of the timeframe, the timeframe established by the CPC is within the 8 day period required by the Constitution (article 33(3)). An