United Nations Office in Timor-Leste (UNOTIL)

REFERENCE GUIDE

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

UNOTIL HUMAN RIGHTS UNIT

FOREWORD FOREWORD
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 States 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-Lestes 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 CHAPTER I: A New Criminal Procedure for Timor-Leste 1. General Aspects of the Criminal Procedure Code 1.1 Actors in a Criminal Proceeding 1.2 Courts with Competence to Apply Criminal Law 2. Procedures under the Criminal Procedure Code of Timor-Leste 2.1 Ordinary Procedure 2.2 Expedited Procedure 2.3 Appeals 3. Relationship between the Criminal Procedure Code and other Legislation 3.1 Special Regulation for Cases of Terrorism, Violent and Highly Organised Criminality CHAPTER II: Human Rights Standards in Criminal Proceedings 1. Constitution of the Democratic Republic of Timor-Leste 2. International Human Rights Standards and Mechanisms CHAPTER III: Human Rights during Arrest and Preventive Detention 1. Arrest 1.1 Grounds and Procedure for Arrest in the Timorese Criminal Procedure Code 1.1.1 Arrest with a Warrant 1.1.2 Arrest without a Warrant 1.1.2.1 Arrest in Flagrante Delicto 1.1.2.2 Arrest outside Flagrante Delicto 1.2 The Right to be Promptly Informed of Reasons for Arrest and Charges 1.3 Right to Notification of Rights and Right to Access a Lawyer 1.4 The Right to be Promptly brought before a Judge 1.5 Immediate Release for Unlawful or Arbitrary Arrest 2. Preventive Detention 2.1 Exceptional Nature of Detention 2.1.1 Alternatives to Detention 2.2 Grounds for Preventive Detention 2.2.1 Imposition of Preventive Detention for Reasons of Mental Health 2.2.2 Imposition of Preventive Detention of Illegal Immigrants, Aslyum Seekers and for purposes of Deportation and Extradition 2.3 Legal Timeframe for Preventive Detention 2.3.1 Periodic Review 3. The Right to Challenge the Lawfulness of an Arrest or Detention before a Court 3.1 Habeas Corpus Application 3.2 Other Procedures 3.2.1 Appeal 3.2.2 Periodic Review 3.2.3 Request as per Article 197 of the Criminal Procedure Code 4. Compensation for Unlawful Deprivation of Liberty 1 2 2 3 5 5 5 6 8 8 9 10 10 11 17 17 18 18 19 19 20 22 24 24 26 27 28 28 29 31 31 31 33 34 35 37 37 37 37 39

CHAPTER IV: Human Rights during Criminal Investigations 1. The Right to Respect for ones Private Life, Home and Correspondence 1.1 Searches of Persons and Places 1.1.1 House Searches 1.1.2 Body Searches 1.2 Interference with Correspondence 1.3 Telephone Tapping 2. Guarantees during Interrogation 2.1 Interrogation in terms of the Timorese Criminal Procedure Code 2.2 The Right not to be forced to Testify against Oneself 2.2.1 Right to remain Silent 2.2.2 Right to Freedom from Torture 2.3 Records of Interrogation CHAPTER V: Human Rights Standards during the Trial 1. The Right to a Fair Hearing 1.1 The Right to Equality of Arms and Adversarial Proceedings 2. The Right to be tried by a Competent, Independent and Impartial Tribunal established by Law 2.1 Court Established by Law 2.2 The Right to be Heard by a Competent Tribunal 2.3 Impartiality of Judges 2.3.1 Disqualification of Judges 2.3.2 Challenging the Impartiality of Judges 3. The Right to be Presumed Innocent 3.1 Burden of Proof 3.2 Treatment of Accused by Authorities 3.3 Criminal History of an Accused 4. Right to a Public Hearing 4.1 Exclusion of the Public 4.2 The Right to a Public Judgement 5. The Right to be Tried without Undue Delay 5.1 Time Limits Established by the Criminal Procedure Code 5.2 Expedited Procedure 6. The Right to Defend oneself in Person or through a Lawyer of ones own choice 6.1 Compulsory Legal Assistance 6.2 The Right to Free Legal Assistance 6.3 The Right to Privileged Communications with ones Lawyer 6.4 Quality of Representation and Representation by non-Lawyers 7. The Right to an Adequate Time and Facilities to Prepare ones Defence 7.1 Access to Information 7.1.1 Information about the Charges 7.1.2 Information about the Prosecution Evidence 7.2 Time to Prepare for the Defence 7.2.1 Request for Adjournment or Postponement of Hearing 8. The Right to be Present at Ones Trial 8.1 Guaranteeing the Presence of the Accused 8.2 Trial in Absentia 8.3 Temporary Absence of accused during Hearings 9. The Right not to be Compelled to Testify against Oneself or to Confess Guilt 9.1 Right to Remain Silent

41 41 42 43 43 44 45 49 49 50 51 51 51 53 54 54 56 56 56 57 58 60 64 64 65 66 68 68 69 71 72 74 76 76 78 78 80 83 83 84 85 85 86 89 89 91 91 93 93

9.2 Prohibition on the Use of Evidence Obtained through Unlawful Means or Treatment 10. The Right to Call, Examine, or have Examined Witness 10.1 Right to Call Witness 10.1.1 Expert Witness 10.2 Examining Witness and Evidence 10.3 Detention of Witnesses 10.4 Limitations on the Examination of Prosecution Witnesses 11. The Right to Free Assistance of an Interpreter 12. The Right to a Reasoned Judgement 13. The Right of Appeal 13.1 The Right to Full Review 13.1.1 Limitations on the Right to Appeal 13.2 The Availability of a Judgement and Records of the Trial 13.3 Fair Trial Guarantees during Appeals 13.3.1 Hearings before the Court Hearing the Appeal 13.3.2 The Right to Legal Assistance 14. The Rights to Compensation in the Event of a Miscarriage of Justice CHAPTER VI: Protection and Redress for Victims of Crime 1. The Notion of Victim 2. Treatment of Victims in the Administration of Justice 2.1 The Victims and the Prosecution 2.1.1 Role of Victims during Investigation 2.2 Informing the Victims 2.3 Presence of Victims during the Hearings 2.4 Victims Right to Protection of their Private Life and Safety 3. Compensation and Assistance to Victims of Crime 3.2 Compensation 3.3 Assistance ANNEX: List of Web-based Resources

94 96 96 97 98 99 99 101 104 105 106 106 107 108 108 109 110 112 112 113 113 114 114 114 114 115 115 116 118

INTRODUCTION INTRODUCTION
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 order for it to be of most use to the readers, this Guide is to be read in conjunction with the Criminal Procedure Code and the relevant international human rights instruments. 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 OHCHRs 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.

CHAPTER I: CHAPTER I: A NEW CRIMINAL PROCEDURE FOR TIMOR-LESTE A NEW CRIMINAL PROCEDURE FOR TIMOR-LESTE
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 country1. 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.

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 procedure2. 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 Judges 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 Courts3. The prosecution service carries a duty to assist the Court in finding the truth and implementing correctly the law as established4. 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).

Article 47 of CPC. 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.
2 3

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 ones 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 accused8. 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 citizens9. 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)).
Article 67 of CPC. 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.
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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: 1st: 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 prosecutions office.
11

Article 7 of UNTAET Regulation 2000/11, as amended by Regulation 2001/25. 5

Chapter I A New Criminal Procedure for Timor-Leste

2nd: Open an Inquiry (investigation) (article 224) This process starts with the formal acceptance of information on the commission of a crime (Step 1). 3rd: 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. 4th: 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. 5th: 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. 6th: 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. 7th: 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. 8th: 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
CLOSURE OF TRIAL
AND DELIBERATION COURT

ARREST 1st INTERROGATION

ACCUSED

REVIEW ISSUE INDICTMENT COURT ACCEPTS TRIAL HEARING DETENTION INDICTMENT AND SCHEDULE CLOSURE HEARING INVESTIGATION

FINAL DECISION

Read during Hearing

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 Childrens 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)) Formal indictment replaced by the 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)) Notification of witnesses, 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 (article 348(3)) Judgement is written in a simplified manner (article 349(4)) Limited right to appeal; appeal 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 13

Preamble of CPC, para.6. 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. 7

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 TimorLeste 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 respondents 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 15

Decree Law X/2005 (not yet published, but already promulgated) Preamble. 9

CHAPTER II: CHAPTER II: HUMAN RIGHTS STANDARDS IN CRIMINAL PROCEEDINGS HUMAN RIGHTS STANDARDS IN CRIMINAL PROCEEDINGS
The ultimate aim of establishing a criminal procedure law is to build a balanced legal structure between the States 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 pretrial 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); Equality before the Law (article 16); Equality between Women and Men (article 17); Protection of Children (article 18);

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Chapter III Human Rights Standards in Criminal Proceedings

Prohibition of Torture (article 30(4)); Right to Honour and Privacy (article 36); Protection of Home and Correspondence (article 37); and Right to access to information (article 40) 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 Rights17, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment18, the Convention on Elimination of Discrimination against Women19 and the Convention on the Rights of the Child20. 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.

See Timor-Leste Court of Appeal, Constitutionality Control, Case No. 1/2005, 9 May 2005. 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.
16 17

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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 ones 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

12

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 39th Session on 20 July 1990 Example of a Treaty Committees 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

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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; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, 1988; United Nations Rules for the Protection 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 Punishment, 1982; The Code of Conduct for Law Enforcement Officials, 1979; United Nations Standard Minimum Rules for Non-custodial Measures, 1990 (called the Tokyo Rules); United Nations Guidelines for the Prevention of Juvenile Delinquency, 1990 (called the Riyadh Guidelines); Standard Minimum Rules for the Administration of Juvenile 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) 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; Basic Principles on the Independence of the Judiciary, 1985; Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, 1990; Basic Principles on the Role of Lawyers, 1990; and Guidelines on the Role 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.

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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.

15

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 nondisclosure 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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CHAPTER III: CHAPTER III: HUMAN RIGHTS DURING ARREST AND PREVENTIVE DETENTION HUMAN RIGHTS DURING ARREST AND PREVENTIVE DETENTION
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.

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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 persons 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 27

Human Rights Committee, General Comment No. 8, para. 1. Body of Principles, Use of Terms. 18

Chapter III Human Rights during Arrest and Preventive Detention

of arrest in others CPLP members, including Portugal28, Macau29 and Cape Verde30; 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.

Article 257(1). Article 240(1). 30 Article 268(1).

28 29

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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 officials 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 crimes31, 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 individuals 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 judges 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.

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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 persons 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 persons 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: 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.

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Chapter III Human Rights during Arrest and Preventive Detention

Police authorities; or Other agencies with similar status 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 Regulation33. 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 country34. 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.

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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 detention35. 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.

Human Rights Committee Communication No. 248/1987, G. Campbell v. Jamaica, 30 March 1992, para. 6.3. 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.
35 36

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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 ones 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 ones 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).

See also principle 11(1) of Body of Principles 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.
37 38

24

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 41

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

25

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.

26

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 persons 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 TimorLeste 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 TimorLeste 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

27

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 possible43. 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 persons 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 44

Human Rights Committee General Comment No. 8, para.3. 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. 28

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.

29

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 2) 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 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,
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.
45

30

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
Human Rights Committee General Comment No. 8, para.1. Human Rights Committee Communication No. 560/1993, A. v. Australia, 3 April 1997, paras. 9.3 and 9.4. 48 Ibid, para. 9.4
46 47

31

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 persons appearance for trial. The Human Rights Committee has held that what constitutes reasonable time is a matter of assessment for each particular case49. However, a lack of adequate budgetary appropriations for the administration of criminal justice does not justify unreasonable delays in the adjudication of criminal cases50. 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 Namibia52, Poland53 and Portugal54 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
Human Rights Committee Communication No. 336/1988, N. Fillastre v. Bolivia, 5 November 1991, para. 6.5. 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 Gmez v.Panama, 19 July 1995.
49 50

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 years 3 years 2 years 1 year 6 months
72hours

ARREST 1st
INTERROGATION ACCUSED

REVIEW DETENTION

PRESENTATION INDICTMENT REVIEW DETENTION

REVIEW DETENTION

REVIEW Court First Instance DETENTION REVIEW DETENTION

FINAL DECISION

DECISION ON APPEAL

DECISION ON APPEAL CONSTITUTIONALITY

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. 33

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 liberty59. 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,
Human Rights Committee Communication No. 560/1993, A. v. Australia, 3 April 1997, para. 9.5. 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.
57 58

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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 (article 205(1)) Application can be filed by the detained person or any other person (article 205(1)) Jurisdiction is exercised by the Supreme 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 detentions 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.

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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 Regulation61 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 habeas corpus application as regulated by the CPC can be decided within 7 days of the application if the requests for information to the authority having the custody of the detained person and for the public prosecution are issued at the same time. In interpreting article 206(1) it is difficult to clearly identify who is responsible for delivering the habeas corpus application to the authority having the custody of the

61

Article 47.4 Transitional Rules of Criminal Procedure.

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Chapter III Human Rights during Arrest and Preventive Detention

detained person. The Criminal Procedure Codes of Macau62 and that of Cape Verde63 are much clearer in this respect, since they clearly impose on the Court the duty to forward the application to the custodian authority. Requiring the applicant to forward the application to the custodian authority can be burdensome for him/her, and could render this procedure obsolete; the exact whereabouts of the detained person could be unknown, one could face serious transport and timing difficulties and the applicant might be fearful to address the authority for fear of intimidation. Article 206 refers only to the timeline for the delivery of the decision by the Court, not mentioning whether a hearing is to take place or not. However in light of the Constitution, it is clear that a hearing shall take place since article 33(3) lays down that habeas corpus application has to be decided through an adversarial hearing. In case the Supreme Court of Justice holds that an arrest or detention was unlawful, article 207 commands that this decision should be immediately communicated to the authority having the custody of the individual. The authorities have to immediately release the detained person, failure of which can result in criminal liability. 3.2 OTHER PROCEDURES 3.2.1 Appeal An appeal can be filed against the decision of a Judge to place the accused under preventive detention while awaiting his/her trial. Differently from an habeas corpus application, an appeal can only be filed in those cases where there is a decision from a Judge ordering the detention (article 287(1)). The CPC does not impose on the Supreme Court of Justice any timeframe for handing a decision on an appeal. Despite this, it is important to note that in virtue of the application of article 80 of the CPC an appeal which challenges the lawfulness of the detention should have a preferential status. 3.2.2 Periodic Review The issue of periodic review has already been dealt with in this Chapter under Section 2. Preventive Detention. A six-month periodic review is established by article 196 of the CPC. This review should take place within the legal established timeframes irrespective of a specific request from the detained person. 3.2.3 Request as per Article 197 of the Criminal Procedure Code Article 197 of the CPC states that At request or at his or her own initiative, the Judge overrides pre-trial detention and determines that the defendant be released where it is established that pre-trial detention has been imposed in cases and conditions other than those provided in the law or where the circumstances that led to pre-trial detention have ceased to exist.

62 63

Article 205(2). Article 17(2).

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This provision allows for an accused under preventive detention to request based on the grounds included in article 197 the discontinuance of his/her detention. This procedure is limited to cases of deprivation of liberty as a result of preventive detention, not being applicable for unlawful arrests. The second ground circumstances that led to pre-trial detention have ceased to exist can be of a considerable value for an accused, especially in between periods for the periodic reviews of the detention by the Judge. No specific procedure or time frame is provided in relation to request in term of article 197. The general requirement that any procedural step has to be made in writing probably applies here (article 84). Also, the general timeframe of 5 days for procedural steps, as laid down in article 79, arguably applies in processing a requirement in terms of article 197. While the lack of specific procedural guidelines brings vagueness to this procedure, it means that specific formalities are unnecessary in making a request under article 179.

Human Rights Standards Article 9(4) of the International Covenant on Civil and Political Rights Principle 22 of the Body of Principles Articles 9 and 10 of the Declaration against Enforced Disappearances Articles 26 and 33 of the Constitution of RDTL Relevant Provisions of CPC Articles 12(2), 80, 183, 194, 196, 197, 205, 206, 207, 220, 223 and 287

38

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4. COMPENSATION FOR UNLAWFUL DEPRIVATION OF LIBERTY Article 9(5) of the ICCPR provides that anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. The UDHR (article 8) and the Body of Principles (principle 35) also include this entitlement amongst its provisions. The Constitution of Timor-Leste fails to include the right to compensation in cases of unlawful detention amongst its provisions; solely making express reference to compensation in the case of miscarriage of justice (article 31(6)). However, the general entitlement of access to court for the defence of protected rights under article 26 and the direct application of international human rights law as per article 9 ensure that individuals in Timor-Leste are entitled to file an application to the Courts for compensation for unlawful deprivation of liberty. According to the Human Rights Committee, the right to reparation applies to people whose detention or arrest has violated national laws or procedures as well as international standards, or both.64 Further, any procedure in place should be timely and effective.65 Article 351 of the CPC regulates an individuals entitlement to compensation for unlawful deprivation of his/her liberty. Deprivation of liberty is unlawful when it does not comply with the requirements provided in the CPC or international treaties. A detention is presumed unlawful when the authority who has carried out or ordered fails to prepare a record, report or written order stating the legal basis for carrying out the arrest or detention (article 351(2)). According to article 351(1), a person who has been unlawfully arrested or placed under preventive detention may ask for compensation for the losses suffered as a result of such deprivation of liberty. There is no express mention in the CPC as to the procedure which should be followed when filing a request for compensation. Article 351 solely states that the person who was unlawfully deprived of his/her liberty has one year to file a request for compensation (article 351(3)). The UNTAET Transitional Rules of Criminal Procedure (article 52(2)) expressly stated that compensation for unlawful deprivation of liberty could be dealt with as part of the final disposition of the criminal case or by a separate civil claim, following the procedure for financial compensation for the victim of the crime. Explicit provision for the possibility of deciding a claim for compensation together with the final decision of the criminal case are only found in the CPC in relation to compensation claimable by the victim of an offence (article 72(2)(b) and 349(2)) (see Chapter VI, 3. Compensation and Assistance to Victims of Crime). The CPC provides the necessary legal basis for a Judge to decide a claim for compensation for unlawful detention together with the final decision of the criminal case despite the lack of an express provision on this issue. Article 9 provides that the
Human Rights Committee Communication No. 560/1993, A. v. Australia, 3 April 1997, para. 9.5. Human Rights Committee Concluding Observation, United States of America, ICCPR, A/50/40 vol. I (1995) 52, para. 299.
64 65

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Chapter III Human Rights during Arrest and Preventive Detention

criminal Court should be empowered to decide all questions which are related and which are of interest to the case, independently of the nature of the question (e.g. civil, criminal or administrative). In deciding on this compensation, the Court would probably not need to undertake lengthy enquiries since other provisions of the CPC guarantee that the Court would have access to documentation on the unlawfulness of the detention the written decision of habeas corpus, an appeal, an article 197 procedure or the record of the release of the accused as per article 223(2) -, therefore making the arbitration on the request for compensation for an unlawful detention fairly straightforward. Affording the possibility of dealing with this kind of request as part of the overall criminal proceeding is of considerable significance in allowing the Courts of TimorLeste to save their limited resources. Human Rights Standards Article 8 Universal Declaration of Human Rights Article 9(5) International Covenant on Civil and Political Rights Principle 35 of the Body of Principles Articles 9 and 26 Constitution RDTL Relevant Provisions of CPC Articles 72, 197, 223, 349 and 351

40

CHAPTER IV: CHAPTER IV: HUMAN RIGHTS DURING CRIMINAL INVESTIGATIONS HUMAN RIGHTS DURING CRIMINAL INVESTIGATIONS
The investigation phase is of great importance to the overall conduct of the trial, since it is during this phase that the prosecution services, with the assistance of the police, need to search for evidence in relation to the crime under investigation. In practice, the result of this phase will dictate whether a case will proceed to trial or not. In the course of a criminal investigation, the persons affected continue to enjoy their fundamental rights and freedoms, notwithstanding some limitations inherent in the deprivation of liberty for those detained. This section will not provide an exhaustive account of the rights guaranteed during criminal investigations, but will focus only on some of the basic rights which must be protected at this stage in relation to those which are regulated by the CPC of Timor-Leste. 1. THE RIGHT TO RESPECT FOR ONES PRIVATE LIFE, HOME AND CORRESPONDENCE The right to respect for ones privacy, family, home and correspondence is guaranteed by article 17 of the ICCPR: No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation This right is also included in the Constitution of Timor-Leste in articles 36 and 37. Limitations on the exercise of this right may be imposed in certain circumstances when necessary and proportional to the interest being protected as per application of article 24. The issues associated with the right to privacy are examined in relation to telephone tapping, house and body searches and interference with correspondence; measures which usually are resorted to at an early stage in the criminal investigation in order to collect evidence to prove the suspicion of a criminal offence. In contrast to other phases of the criminal proceedings to date there is no solid set of specific international human rights rules related to the phase of criminal investigation. The general requirements of necessity and proportionality are however always applicable since obtaining evidence through telephone tapping, interference with correspondence and body and house searches clearly has an impact on the enjoyment of the right to privacy and inviolability of the home and communications. The expression arbitrary interference used in article 17 of the ICCPR is relevant to understand the extent of the protection of the right to privacy, family, home or correspondence. The introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the ICCPR and should be, in any event, reasonable in the particular circumstances.66

66

Human Rights Committee General Comment No. 16, para. 4. 41

Chapter IV Human Rights during Criminal Investigation

1.1 SEARCHES OF PERSONS AND PLACES International human rights law provides no detailed rules about the lawfulness of searches of places and persons. Some guidelines have however been developed by the Human Rights Committee which considers that in order to comply with article 17 of the ICCPR, searches should be lawful, have its terms clearly established in law67 and the Courts should be given the competence to decide upon requests for and the legality of such activities.68 The right to privacy, which expressly includes the privacy of the person and the inviolability of the home is guaranteed by articles 36 and 37 of the Timorese Constitution. Searches of persons and places are regulated by articles 56, 168 to 171 and 226 of the Timorese CPC. The general rule applicable to both searches of persons or places is that they need to be authorized through a judicial order (article 169(1) and 226(1)(c)). The police organs or someone who has been appointed by the public prosecution services to undertake this task are responsible for executing the order of the Judge (article 169(2)). A copy of the warrant issued by the Judge shall be delivered to the person concerned prior to carrying out the search (article 169(5)). The search of persons and places can be conducted without an order from a Judge in three situations: When there is written consent from the person concerned (article 171(1)); In case of flagrante delicto in relation to an offence which carries imprisonment as a sentence (article 56(1)(a)); In urgent matters when strong suspicion exist that items relating to a criminal offence are hidden and a delay in securing permission to retrieve them might lead to the modification, removal or destruction of such items or pose a danger to the safety of persons and goods (article 56(1)(b) and article 169(6)) In case a search is conducted without a warrant of a Judge, a Judge needs to be informed immediately so he can evaluate the validity of the search (article 169(6) and 56(2), respectively). The police carrying out the search shall make a written record of the search (article 56(2) article 169(4)) and the person searched or being responsible for the place which was searched should sign the written report (article 169(4)), thereby requiring the police to compile the report promptly after the conclusion of the search. The police are however exempted from the reporting duty when no object is found during the search. The Special Regulation on Terrorism, Violent and Highly Organized Crimes establishes considerably different rules relating to searches of persons and home in relation to crimes of terrorism, violence and organized crimes; these will be described in the specific sections below.
Human Rights Committee Communication No. 778/1997, Coronel et al. v . Colombia, 24 October 2002, para. 9.7. Human Rights Committee Concluding Observations, Belarus, ICCPR, A/53/40 vol. I (1998) 26 at para. 151. See also Human Rights Committee Concluding Observations, Lithuania, ICCPR, A/53/40 vol. I (1998) 30 at para. 174.
67 68

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1.1.1 House Searches The Human Rights Committee provides that searches of a persons home should be restricted to search for necessary evidence and should not be allowed to amount to harassment.69 In relation to house search, article 37(2) of the Constitution states that a person's home shall not be entered against his will, except written order of a competent judicial authority and in the cases and manner prescribed by law. This provision also prohibits the entry into a person's home during evenings against his/her will, except in case of serious threat to life or physical integrity of somebody inside the house (article 37(3)). In conformity with the constitutional framework, article 170 of the CPC prohibits house searches during the evening. The CPC prohibits search of a house without an order from the competent judicial authority in all cases; article 56(4) expressly provides that a police search in cases of urgency is not applicable to house searches. As provided by the CPC, written consent from the person concerned relieves the police or the public prosecution services of the requirement to produce a judicial order in order to carry out a house search (article 171(1)). Consent can also be given to allow carrying out a house search during the evenings (article 171(2)). Prior written consent will also render the evidence collected valid as per application of article 111 of the CPC. Article 4 of the Special Regulation provides specific rules for house searches in relation to terrorism, violent and highly organized crimes, which are considerably different from rules provided in the CPC. In addition to the competence of a Judge to issue a warrant for house search, a public prosecutor is also empowered to issue such a warrant in terms of article 4(1). A prosecutor can order a house search when there is reasoned evidence of an imminent practice of one of the crimes which can be a threat to the life or integrity of any person. Any house searches conducted with a warrant from a public prosecutor has to, in accordance with article 4(2), be immediately communicated to a Judge who should assess the validity of the search. Failure to comply with this procedure renders the evidence collected invalid. The Special Regulation does not expressly state when a house search can be carried out. In order to harmonize the application of this article with the constitutional provision article 37(3) the search of a house during evenings should only be carried out when there is a threat to the life or integrity of a person present in the house. 1.1.2 Body Searches According to the Human Rights Committee, effective measures should ensure that body searches are carried out in a manner consistent with the dignity of the person being searched. Those being subjected to a body search by State officials should only be examined by persons of the same sex.70 The process for carrying out a body search has to be in compliance with the rules established in article 169 of the CPC as explained above.

69 70

Human Rights Committee General Comment No.16, para. 8. Human Rights Committee General Comment No. 16, para. 8. 43

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In relation to crimes falling under the realm of the Special Regulation a considerably different procedure is established. The prosecution and the police authorities have the power to order body searches when there is reasoned evidence of the imminent practice of one of the crimes listed in article 1 and there is a threat to the life or integrity of any person (article 5(1)). The police can also carry out a body search without the previous authorization of the prosecutor or the police authorities if faced with the same circumstances of imminent danger (article 5(2)).71 Any body search conducted as per article 5(1) or (2) shall be immediately communicated to a Judge who should assess the validity of the search; failure of which renders the evidence collected invalid (article 5(3)). It is important to highlight that in all circumstances and in relation to all crimes those undertaking a body search are specifically obliged to conduct it with due respect for the dignity and sense of decency of the person being searched (article 169(3)). 1.2 INTERFERENCE WITH CORRESPONDENCE International human rights mechanisms have already developed a considerable number of guidelines relating to the interference with correspondence of those deprived of their liberty, such as in relation to a prisons authority control of correspondence of detained persons.72 The CPC regulates the interference of correspondence solely as a mechanism for obtaining evidence in criminal proceedings, therefore the issue of interference with correspondence which goes beyond the investigative aim is not dealt with in this Guide. The Timorese Constitution provides in article 37(1) that correspondence is inviolable, except in cases provided for by law as a result of criminal proceedings. The same principles identified by the Human Rights Committee as being applicable to telephone tapping as highlighted above are also applicable to interference of correspondence, including the need to have the grounds for the interference clearly established by law (article 37(1)) and the need to provide for an independent supervisory mechanism.73 The Timorese CPC does not include any provisions specifically regulating the process for the apprehension of correspondence during investigation, but provides only for a general procedure for the apprehension of any objects (article 172 and 173). The only reference to interference with correspondence is made under article 226 which defines the role of a Judge during the investigation phase. Article 226(1)(e) stipulates that it is the exclusive competence of a Judge to authorize the seizure of correspondence and become acquainted with its contents before any other entity does. In practice both articles 172 and 226 must be read in conjunction in order to identify the procedure applicable in seizing a persons correspondence. Where the provision under article 172 dealing with the general procedure is not in accordance with article

Article 5 uses the terms police authorities and police organ in different context; while the police authorities can order the body search as per article 5(1), the police organ carries out the body search, with or without prior order from the police authorities (article 5(2)). 72 See for example Human Rights Committee Communication No. 702/1996, Clifford McLawrence v. Jamaica, 18 July 1997; Communication No. R.7.27, Pinkney v. Canada, 29 October 1981, paras. 31-34; Communication No. Albert Berry v. Jamaica, 7 April 1994 and Communication No. 74/1980, Estrella v. Uruguay, 29 March 1983, paras. 1.13, 8.5 and 9.2. 73 Human Rights Committee Concluding Observations, Lesotho, ICCPR, A/54/40 vol. I (1999) 51 at para. 267.
71

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226, article 226 is to take precedence since it applies specifically to the seizure of correspondence. In accordance with article 172, the seizure of any object should generally be preceded by a Judges order, except in case of emergency, where the police is empowered to seize an object without the warrant of a Judge (article 172(2)). In relation to the seizure of correspondence, article 226 excludes the possibility of apprehending correspondence without a warrant from a Judge. Articles 172 and 226 fail to identify any specific ground which the Judge has to consider in order to issue an order to seize an object.74 Article 172 regulates seizure of objects in general, and does not provide for a monitoring role of the Judge after the apprehension of the object. Article 226(1)(a) however provides an opportunity to have the apprehension of correspondence subjected to a certain level of monitoring. Article 226(1)(a) requires that the Judge should be the first to become familiar with the content of the correspondence, which should in practice mean that the correspondence should reach a Judges hands still closed. The Special Regulation on Terrorism, Violent and Highly Organized Criminality does not refer specifically to seizure of correspondence but provides for a general provision on the apprehension of objects in article 6. Consequently, the provisions under the CPC providing for the exclusive competence of a Judge and requiring the Judge to be the first to become familiar with the contents of a correspondence are also applicable to terrorism, violent and highly organized crimes. According to the Constitution (article 30(4)) together with article 111 of the CPC, a piece of evidence collected as a result of an abusive interference of the correspondence shall be invalid. 1.3 TELEPHONE TAPPING At the international level, few specific guidelines have been drawn up in relation to the use of telephone tapping as a means for gathering information for the investigation of a crime. Through the analysis of opinions expressed by the Human Rights Committee in various instances, it is possible to identify the following guidelines in relation to the use of telephone tapping. First, the procedure and the basis for carrying out telephone tapping must be clearly established by law.75 In view of the need to provide predictability, requirements cannot be vaguely established, and individuals need to be aware of circumstances in which, and the conditions under which, public authorities are empowered to resort to this means for gathering evidence.76 Telephone tapping must be authorized by a Judge and a Judges role should extend to the monitoring of its use.77 Telephone tapping can only be carried out under strict control to minimize the interference with a persons right to privacy.78

This is in contrast of the use of the ground necessity for conducting telephone tapping in terms of article 177. Human Rights Committee Concluding Observations, Russian Federation, ICCPR, A/50/40 vol. I (1995) 65 at paras. 380 and 399. 76 Human Rights Committee Concluding Observations, Argentina, CCPR/C/79/Add.46; A/50/40,paras.144-165, 5 April 1995, para. 157. 77 Human Rights Committee Concluding Observations, Poland, U.N. Doc. CCPR/C/79/Add.110 (1999), para. 22; Slovakia, ICCPR, A/52/40 vol. I (1997) 58 at para. 384; Lesotho, ICCPR, A/54/40 vol. I (1999) 51 at para. 267. 78 Human Rights Committee Concluding Observations, Italy, CCPR/C/79/Add.94, 18 August 1998, para. 22
74 75

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The Constitution of Timor-Leste in article 37(1) states that every private means of communication is inviolable, except in cases provided for by law as a result of criminal proceedings. Articles 177 to 179 of the CPC regulate the use of telephone tapping in criminal proceedings. Article 7 of the Special Regulation on Terrorism, Violent and Highly Organized Criminality is also applicable to telephone tapping. According to law, the Judge has the exclusive competence to order the interception of telephone conversations (article 226(1)(d) of CPC). The basis on which a Judge can authorize recording of oral communications is provided by article 177 of the CPC. The criteria established by this provision are: 1) necessity for the disclosure of truth in connection with a criminal offence (article 177(1)); and 2) be related to an offence which either can carry a prison sentence of more than three years (or to crimes which preventive detention can be imposed) (article 177(1)(a)), or is one of the crimes listed in article 177, which includes libel, threat, duress, intrusion into ones private life, disruption of peace and tranquility, when committed on the telephone (article 177(1)(b)), or relate to the crimes of terrorism, violent and organized crimes as identified under article 1 of the Special Regulation (by virtue of application of article 7 of the Special Regulation). The imposition of the criteria of necessity is in line with the principles applicable to the limitation of an individuals fundamental right as per article 24 of the Timorese Constitution. This entails that the telephone tapping has to be exclusively aimed at obtaining the truth related to the criminal facts; telephone tapping is therefore considered to be of a subsidiary nature or a means of last resort in that it can only be employed when there are no other mechanisms which result in lesser interference with a persons rights which could reach this same objective. Reference is made to the ground of great interest in relation to the types of crimes identified in article 177(1)(b), which includes crimes of injury and threat. The reference to this different ground creates uncertainty as to how general interest relates to the ground of necessity under article 177(1), since in practice they require considerably different kinds of assessment. The crimes listed in article 177(1)(b) are all specific crimes under the Draft Criminal Code, except the crime of disruption of peace and tranquility which is not an offence per se under the Draft Criminal Code. No guidance is provided as to the period allowed to impose telephone tapping. Despite this, the ground of necessity and the procedural safeguards established under article 178 have the potential, in practice, to prevent that telephone tapping is continued over excessive periods of time. Article 178 establishes certain steps which provide some degree of monitoring of the use of telephone tapping. According to this provision, once a tapping is made a report should be compiled on the circumstances of the recording and be forwarded together with the actual recorded materials to the Judge who authorized the tapping (article 178(1)). The Judge is then required to analyze the contents of the telephone recording in order to assess as to whether the information collected is relevant as evidence, ordering in such cases its inclusion in the case file. In case the information

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collected through the telephone tapping is considered irrelevant, the recordings should be destroyed (article 178(2)). Article 188(1) of the Portuguese CPC, which regulates the procedure for telephone tapping, and uses similar wording as article 187 of the Timorese CPC has been subjected to constitutional interpretation by the Constitutional Court of Portugal.79 While the jurisprudence of this Court is of course not binding in Timor-Leste, it can possibly help in interpreting newly developed laws which bear a resemblance to Portuguese law. The Constitutional Court was of the opinion that article 188 should be interpreted in such a manner so as not to be in conflict with the right to privacy. According to the Court, article 188(1) of the Portuguese CPC needed to be interpreted to include: a) an immediate recording and immediate forwarding of the tapping to the relevant Judge80; and b) the imposition on the Judge of the duty to regularly and promptly assess whether the order for the recording of conversation needs to be maintained or changed before deciding to include further recordings in the case file. In 2000 an amendment was made to the Portuguese CPC, and amongst its changes it incorporated the word immediate to article 188(1). The fact that telephone tapping aims at the discovery of the truth, together with the reference that the recordings are to be attached to the case file, means that telephone tapping can only be ordered in relation to proceedings already existent, not allowing the use of telephone tapping to identify the commission of a crime, but only to search for information in relation to those crimes which have already come to the knowledge of the police or the public prosecution services. Article 178(4) allows the accused or anyone who had his/her conversation recorded to have access to the recordings once the investigation phase has been completed. This is an important mechanism to assist the accused to adequately prepare for his defence as well as to allow the accused to challenge this kind of evidence collected against him/her (see, respectively, Chapter V, 7. The Right to an Adequate Time and Facilities to Prepare Ones Defence and 10. The Right to Call, Examine, or have Examined, Witnesses). Despite the absence of an express provision in the CPC requiring the accused to be notified of the telephone tapping, the effective enjoyment of this entitlement invariably means that the accused needs to be informed that conversations have been recorded and that s/he may consult the files. Article 177(3) allows the prosecutor to request the transcription of the oral recordings when this is in of interest for the good development of the process. Once a recording is transcribed the chance that other persons will get knowledge of the content of someones communication increases and therefore increases the potential of further interference with an individuals right to privacy. Article 177(2) exempts the conversation of a lawyer and the accused from being intercepted. Telephone tapping in terms of this provision is only allowed in cases where there is strong indication of the involvement of the lawyer in a crime. Article 34(4) of the Constitution of Timor-Leste provides that any proof which is obtained through the abusive interference with a persons private life shall be invalid. Article 177(3) of the CPC categorically provides for the invalidation of any evidence obtained in violation of the requirements of article 177, reinforcing therefore the rule
79 80

Constitutional Court of Portugal, Decision No.407/97, 21 May 1997. Emphasis added. 47

Chapter IV Human Rights during Criminal Investigation

provided in article 111 which deals with the inadmissibility of evidence obtained with the interference of an individuals right to privacy.

Human Rights Standards Article 17 International Covenant on Civil and Political Rights Articles 34, 36 and 37 Constitution RDTL Relevant Provisions of CPC Articles 56, 111, 168, 169, 170, 171, 172, 173, 177, 178, 179 and 226 Articles 4, 5, 6 and 7 Special Regulation on Terrorism, Violent and Highly Organized Criminality

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2. GUARANTEES DURING INTERROGATION One of the mechanisms to collect evidence about a crime is the questioning or interrogation of suspected and accused persons. It is important to ensure that interrogation is undertaken without inappropriate interference with an individuals rights. People suspected of or charged with criminal offences are vulnerable to human rights violations, including torture and other cruel, inhuman or degrading treatment, during the investigatory stages of criminal proceedings. Those held in detention for questioning by law enforcement officials are particularly at risk. There are several guarantees which aim to safeguard a persons rights during investigation of an offence. They include the presumption of innocence, prohibition against torture and cruel, inhuman and degrading treatment, prohibition against compelling a person to confess guilt or testify against herself, right to remain silent and the right of access to counsel. 2.1 INTERROGATION IN TERMS OF THE TIMORESE CRIMINAL PROCEDURE CODE Articles 62 to 64 of the new CPC for Timor-Leste are the main provisions regulating the interrogation of accused persons. Article 62 provides for a general framework for the conduct of interrogation, establishing clear base rules applicable to every interrogation, irrespective as to whether the accused is detained or not. The main aspects of every interrogation to be carried out in Timor-Leste are: Prohibition of: use restraints (article 62(1)) use methods or techniques which can have the potential to interfere with the free will or memory of the accused (article 62(2)) negative presumption against the accused if s/he chooses to remain silent (article 63(4)) Provision of Information or Explanation on: the entitlements and duties of the accused (article 62(3)) the facts surrounding the allegation and, if possible, the evidence which exists against him/her (article 62(4)) The authorities in charge of conducting an interrogation of an accused are identified in articles 63 and 64. In general terms it can be said that the judicial authorities Judges and public prosecutors are the authorities who are empowered to interrogate an accused (article 64(1)). Public prosecutors can however delegate their power to the police or judicial staff as provided in article 57(2). The separation of responsibilities between the Judge and the prosecutor (or the police) in relation to the interrogation of an accused is dependant on the phase of the process in which the interrogation is conducted. If interrogation is made during the investigation phase, the general rule is that interrogation is conducted under the auspices of the public prosecution services (or the police); if interrogation takes place during the trial phase, a Judge is the authority empowered to interrogate the accused. There is an important exception to this rule; the first interrogation of a the the the the

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detained accused is under the exclusive competence of the Judge (article 63(2) and 226(1)(a)). During the first interrogation of a detained accused, the defence counsel and the public prosecutor should be present; the presence of other persons such as the court clerk and, when needed, an interpreter and person in charge of the security is also envisaged by law (article 63(3)). The CPC is silent as to who should be present in the other interrogations of the detained accused or the interrogation of an accused who is not under detention. However, since an accused has the right to be assisted by a defence counsel when there is a request to this end (article 60(d)), the presence of a defence counsel during any stage of interrogation appears to be guaranteed. 2.2 THE RIGHT NOT TO BE FORCED TO TESTIFY AGAINST ONESELF No one who is charged with a criminal offence may be compelled to confess guilt or testify against themselves. Article 14(3)(g) of the ICCPR and Principle 21(2) of the Body of Principles are the main international provisions providing for this guarantee. This right is often also explained as saying that it means in practice that an accused has the right to remain silent. The right not to be forced to testify against oneself is not explicitly included in the Timorese Constitution. It is generally understood that the right not to be forced to testify against oneself is closely linked with the right to be presumed innocent. Article 34(1) of the Constitution provides for the right to be presumed innocent (see Chapter V, 9. The Right not to be Compelled to Testify against Oneself or to Confess Guilt). This right is applicable at both the pre-trial and trial stages. The express prohibition of compelling an accused to confess the crime in the ICCPR is understood to entail that authorities are forbidden from engaging in any form of coercion, whether direct or indirect, physical or psychological. This includes the guarantee that investigating authorities do not apply any direct or indirect physical or psychological pressure on the accused, with a view to obtaining information or a confession of guilt.81 An accused can waive his/her right not to testify and can decide to give a declaration and therefore be subjected to interrogation. It is the assessment as to whether the waiving of this right was made through the free will of the accused which needs to be considered when analyzing the right not to be compelled to testify or confess guilt. This assessment might not be difficult in situations where, for example, physical force has been used; however in other circumstances it might be more difficult to assess the lawfulness of the compulsion to which an accused person has been subjected.

81

Human Rights Committee Communication No. 253/1987, Kelly v. Jamaica, 8 April 1991, para. 5.5. 50

Chapter IV Human Rights during Criminal Investigation

2.2.1 Right to Remain Silent The right of an accused to remain silent during the investigation phase and at trial is inherent in the presumption of innocence and an important safeguard of the right not to be compelled to confess guilt or testify against oneself. According to article 60(c) an accused has the right to decide freely as to whether she wants to make declarations or not. Article 62(2) of the CPC lays down that the authority carrying out an interrogation is under the duty to inform the accused about his/her rights; including the right under article 60(c). In addition to requiring the authority to explain the right to remain silent, the CPC also imposes an obligation on the authority to explain the consequences of the exercise of the right to remain silent: that no negative presumption will be made if this entitlement is exercised (article 62(4)). The explanation of the right to remain silent is required in all interrogations, whether conducted by a Judge, police or public prosecutor, as well as whether the accused is in detention or not. Where an accused is interrogated more than once, article 62 is still applicable, therefore requiring the explanation of the right to remain silent during each interrogation. 2.2.2 Right to Freedom from Torture Persons arrested, detained, or otherwise in the hands of police or prosecuting authorities for purposes of questioning or interrogation into alleged criminal activities, either as suspects or as witnesses, have the right always to be treated with humanity and without being subjected to any psychological or physical violence, duress or intimidation. Prohibition of torture and other cruel, inhuman or degrading treatment is stipulated in the UDHR (article 5), ICCPR (article 7) as well as CAT (article 2). The Timorese Constitution uses unequivocal wording in determining its prohibition under article 30(4). As already highlighted above, article 62 of the CPC particularly forbids the use of any methods or techniques which can have the potential to interfere with the free will or memory of the accused (article 62(2)). The wording of article 62 of the CPC resembles the wording used by principle 21.2 of the Body of Principles. The express mention in both in the Constitution (article 34(4)) and the CPC (article 110(1)) that evidence obtained through use of torture or other inhuman or degrading treatment cannot be accepted in the proceedings is an important measure to combat torture and other coercive methods. This issue is further discussed in Chapter V of this Guide. 2.3 RECORDS OF INTERROGATION The recording of interrogations is of great importance for the overall criminal proceeding. It is of course important to record information so that it can be used in the proceedings. In addition, keeping records of interrogation can also serve as an important tool to prevent coercive extraction of information.

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Principle 23 of the Body of Principles states that the recording of interrogation of any detained or imprisoned person is required.82 The Body of Principles spells out some of the information which should be recorded, including the duration of each interrogation, the intervals between interrogations and the identities of the officials conducting the interrogation as well as those of other persons present during interrogation (principle 23.1 Body of Principles). Subsection 2 of the same principle further provides that the defence counsel or the detained person has the right to have access to the interrogation recordings. The Human Rights Committee has clarified that the duty to record interrogation applies to all interrogations; it does not apply only to those detained but also in relation to the interrogation of any person who is not under detention.83 The CPC of Timor-Leste does not include any specific rule or provision in relation to recording of interrogations. Article 84 establishes the general rule of the need to record every procedural step of a criminal proceeding. The actions of the police are, under article 84(2)(c) to be recorded in writing. The information which should be included in the written records of every procedural act is identified in article 87. According to this article, the written recordings shall include: 1. information on timing and place as to when and where the procedural act took place; 2. identification of the persons taking part in the act; 3. specific description of the actions taken, including the role of the different participants, any declarations taken and the manner and circumstances under which they were taken, documents presented or received aiming at providing a genuine description of the act. Article 88 requires the participants to sign the recording; specifically requiring that those providing declarations should also sign the written records.

Human Rights Standards Article 5 Universal Declaration of Human Rights Articles 7 and 14(3)(g) International Covenant on Civil and Political Rights Article 2 Convention against Torture Principles 21 and 23 of the Body of Principles Articles 30 and 34 Constitution of RDTL Relevant Provisions of CPC Articles 60, 62, 63, 64, 84, 87, 110 and 226

82 83

Principle 23 of the Body of Principles Human Rights Committee General Comment No. 20, para 11. 52

CHAPTER V: CHAPTER V: HUMAN RIGHTS STANDARDS DURING THE TRIAL HUMAN RIGHTS STANDARDS DURING THE TRIAL
A number of guarantees must be respected in order to consider a trial to be fair. Article 14(3) of the ICCPR provide for a list of minimum guarantees which must be complied with in order to ensure the fairness of a criminal proceeding, such as the right to be tried without delay, the right to call and examine witnesses, the right to a public judgement.

Chapter V of this Guide is sub-divided in 14 Sections:

1. THE RIGHT TO A FAIR HEARING 2. THE RIGHT TO BE TRIED BY A COMPETENT, INDEPENDENT AND IMPARTIAL TRIBUNAL ESTABLISHED BY LAW 3. THE RIGHT TO BE PRESUMED INNOCENT 4. THE RIGHT TO A PUBLIC HEARING 5. THE RIGHT TO BE TRIED WITHOUT UNDUE DELAY 6. THE RIGHT TO DEFEND ONESELF IN PERSON OR THROUGH A LAWYER OF ONES OWN CHOICE 7. THE RIGHT TO AN ADEQUATE TIME AND FACILITIES TO PREPARE ONES DEFENCE 8. THE RIGHT TO BE PRESENT AT ONES TRIAL 9. THE RIGHT NOT TO BE COMPELLED TO TESTIFY AGAINST ONESELF OR TO CONFESS GUILT 10. THE RIGHT TO CALL, EXAMINE, OR HAVE EXAMINED, WITNESSES 11. THE RIGHT TO FREE ASSISTANCE OF AN INTERPRETER 12. THE RIGHT TO A REASONED JUDGEMENT

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1. THE RIGHT TO A FAIR HEARING Article 14(1) of ICCPR provides that everyone is entitled to a fair hearing. The right to a fair hearing lies at the heart of the concept of a fair trial. This guarantee is of a complex nature and is implemented through the application of a number of different safeguards. The right to a fair hearing in criminal trials is specified by a number of concrete rights, such as the right to be presumed innocent, the right to be tried without undue delay, the right to prepare a defence, the right to defend oneself in person or through counsel, the right to call and examine witnesses and the right to protection from retroactive criminal laws. However, the international standards governing the conduct of trials make clear that the rights specifically enumerated are minimum guarantees. The observance of each of these guarantees does not, in all cases and circumstances ensure that a hearing has been fair. The right to a fair trial is broader than the sum of the individual guarantees, and depends on the entire conduct of the trial.84 The assessment of the fairness of a hearing has to be evaluated on a case-bycase basis. The reality is that the different safeguards composing the right to a fair hearing are inter-related and inter-dependent, following the general nature of human rights. Article 34 of the Constitution of Timor-Leste enumerates some of the guarantees which should be applied in a criminal proceeding. In accordance with the Preamble of the Timorese CPC, the Code aims at consolidating the guarantees for a criminal procedure and other fundamental rights enshrined in the Timorese Constitution. 1.1 THE RIGHT TO EQUALITY OF ARMS AND ADVERSARIAL PROCEEDINGS A direct consequence of the application of the right to equality before the law provided in article 16 of the Timorese Constitution and in various international treaties85 is the need to guarantee the principle of equality of arms in criminal proceedings. The Human Rights Committee has already expressed its view that the concept of fair trial in article 14(1) of the International Covenant on Civil and Political Rights is to be interpreted as to include a number of guarantees, including equality of arms and respect for the principle of adversary proceedings.86 The notion of equality of arms is an essential feature of a fair trial, and is an expression of the balance that must exist between the prosecution and the defence.87 In criminal trials, where the prosecution has the machinery of the State behind it, the principle of equality of arms is an integral part of the right to defence. The
Human Rights Committee General Comment No. 13, para.5 2(1), 3 and 26 of the ICCPR, Articles 2 and 15 CEDAW, Articles 2, 5 and 7 of the International Convention for the Elimination of all Forms of Racial Discrimination well as Articles 7 and 10 of the Universal Declaration. 86 Human Rights Committee Communication No. 289/1988, D. Wolf v. Panama, 26 March 1992, para. 6.6; and Communication No. 207/1986, Morael v. France, , 28 July 1989. 87 Human Rights Committee Communication No. 307/1988, J. Campbell v. Jamaica, 24 March 1993, para. 6.4.
84 85Articles

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principle of equality of arms ensures that the defence has a reasonable opportunity to prepare and present its case on a footing equal to that of the prosecution. When analyzing the Timorese CPC it is not possible to identify a specific provision which encompasses the principle of equality of arms. The CPC needs to be interpreted globally and it is therefore necessary to identify areas in which the prosecution and the defence are given similar opportunities, and other areas where an imbalance could exist. The application of the following articles have the potential to ensure equality of arms during the hearings: accuseds entitlement to request taking of statements (article 230) and telephonic recordings (article 179), notification of indictment to the accused (article 237), opportunity to make oral closing allegations (article 276), amongst other provisions. The adversarial nature of the proceedings is assured in various provisions in the Criminal Procedure Code. According to article 246 the Court has a duty to ensure that the proceedings are of an adversarial nature. This rule applies in relation to decisions on incidental matters and examination of evidence (article 240). The entire proceedings during the trial should always be consistent with the adversarial nature as provided by this article. Other acts which are based on an adversarial procedure are the judicial review of arrests (article 63(2)) and the provision of documentary evidence (article 133).

Human Rights Standards Article 7 and 10 Universal Declaration of Human Rights Articles 2(1), 3, 14(1) and 26 International Covenant on Civil and Political Rights Article 2 Convention on the Elimination of All Forms of Discrimination against Women Articles 2, 5 and 7 International Convention for the Elimination of all Forms of Racial Discrimination Articles 16 and 34 Constitution RDTL Relevant Provisions of CPC Articles 63, 133, 179, 230, 237, 240, 246 and 276

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ESTABLISHED BY

2. THE RIGHT TO BE TRIED BY A COMPETENT, INDEPENDENT AND IMPARTIAL TRIBUNAL LAW

The primary institutional guarantee of a fair trial is that decisions will not be made by political institutions but by competent and independent Courts provided in the law. Article 14(1) of ICCPR expressly identifies four conditions for guaranteeing a Courts ability to deliver a fair trial: competence, independence, impartiality and establishment by law. The Timorese Constitution provides a solid framework for the implementation of these conditions. Article 119 of the Constitution provides for the independence of the Courts. Since the Courts independence is not regulated by the CPC, this guarantee will not be subject to detailed discussion in this Guide.88 2.1 COURT ESTABLISHED BY LAW The objective of requiring a Court to be established by law is to ensure that trials are not conducted by tribunals set up to decide a particular individual case at issue.89 No one shall be subject to trial except in accordance with the law. This prohibition is categorically imposed by article 31(1) of the Constitution of Timor-Leste. Further, article 121(1) states that jurisdiction lies exclusively with the judges nominated in accordance with the law. Article 123 of the Constitution regulates the categories of Courts which compose the countrys judiciary. Subsection 2 of this provision expressly prohibits the creation of courts of exception, reinforcing the right of equality before the law. The composition and competencies of these courts are subject to regulation by legislation on the organization of the judiciary.90 Article 7 of the CPC adopts the international and Constitutional guarantees of legality of the Courts. Accordingly, only those Courts provided by the law on the judicial organization are competent to render criminal justice. 2.2 THE RIGHT TO BE HEARD BY A COMPETENT TRIBUNAL The right to a trial before a competent tribunal requires the Court to have jurisdiction to hear the cases before it. In many countries jurisdiction depends on the type of crime (e.g. violent and non-violent referring to the punishable imprisonment sentence), the place where crime took place (territorial jurisdiction) as well as the place of residence of the accused. The CPC regulates fairly extensively the issue of jurisdiction of the Courts. Title II of Part I of the Code is entirely devoted to establishing clear guidelines on the competencies of the different courts91. Articles 27 and 35 regulate the proceeding by which one of the parties, including the accused, can challenge the jurisdiction of the Court. The assurance that a trial will only be heard by a competent court is further promoted by a declaration of invalidity
88 The Judicial Magistrates Law 8/2002, as amended by Law 11/2004, provides for some of the aspects of an independent judiciary. 89 See Principle 5 of the Basic Principles on the Independence of the Judiciary. 90 Currently the organization of the Judiciary is still governed by UNTAET Regulation 2000/11 in so far as its provisions are not in conflict with the provisions of the Criminal Procedure Code. See article 2(2) Decree Law 13/2005. 91 Article 7 to 36.

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for the procedural acts undertaken by the Court lacking the competence as provided in law (article 103(1)(e)). 2.3 IMPARTIALITY OF JUDGES The notion of impartiality of the judiciary is an essential aspect of the right to a fair trial. It means that all judges involved in the case must act objectively and base their decisions on the relevant facts and applicable law, without personal bias or preconceived ideas on the matter and persons involved and without promoting the interests of any one of the parties. In summary, each of the decision-makers in a trial shall be unbiased92. The Human Rights Committee has unambiguously held that the right to be tried by an independent and impartial tribunal is an absolute right that may suffer no exception93. Actual impartiality and the appearance of impartiality are both fundamental to maintaining respect for the administration of justice. The right to an impartial tribunal requires that judges have no interest or stake in a particular case and do not have pre-formed opinions about it. The assessment of impartiality of a Judge has been translated in practice to entail an objective and subjective test. The objective test examines whether the judge provided sufficient procedural guarantees to exclude any legitimate doubt of partiality. The subjective test assesses the existence or absence of a Judges personal bias. States should establish in their national law clear grounds for disqualification. Where the grounds for disqualification of a judge are laid down by law, it is incumbent upon the court to consider ex officio (at his/her own initiative) these grounds and to replace members of the court falling under the disqualification criteria. A trial flawed by the participation of a Judge who, under domestic law, should have been disqualified cannot normally be considered to be fair or impartial within the meaning of article 14 of the International Covenant on Civil and Political Rights.94 In addition to a Courts duty to consider ex officio the disqualification of Judges, the accused shall be entitled to raise any doubts as to the lack of impartiality of a Judge in order to remedy any threat or violation to due process guarantees. It is legitimate, however, to consider that there is a general assumption that a judge is personally impartial unless one of the parties raises proof to the contrary, usually in the course of proceedings. Challenges to the impartiality of a Court have been raised for various reasons, including when a Judge has taken part in other parts of the proceedings in another capacity95 and when judges have had a personal stake in the proceedings or some relationship with one of the parties. In the CPC of Timor-Leste, the impartiality of Judges is a mandatory requirement by application of article 38. Article 38 demands the withdrawal of a Judge if there are any grounds for disqualification or suspicion of bias.
Human Rights Committee Communication No. 387/1989, Arvo O. Karttunen v. Finland , 23 October 1992, para. 7.2. Human Rights Committee Communication No. 263/1987, M. Gonzalez del Ro v. Peru , 28 October 1992, para. 5.2. 94 Human Rights Committee Communication No. 387/1989, Arvo O. Karttunen v. Finland, 23 October 1992, para. 7.3. 95 See for example Human Rights Committee Concluding Observations, Uruguay, ICCPR, A/53/40 vol. I (1998) 38 at para. 242.
92 93

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The grounds for the disqualification of Judges are laid down in article 39, which establishes objective grounds, such as family relationship between a Judge and one of the parties. The basis for alleging suspicion of bias on the part of a Judge is found in article 40. Suspicion is considered to exist when there are strong reasons which can shake the trust in the Judges impartiality. This same provision assists the interpretation of this broad concept by exemplifying it as a ground for suspicion when a Judge has expressed opinions which reveal a pre-judgment of the case. The procedure to be followed in raising the existence of the grounds under articles 39 and 40 is described in article 42 of the CPC. 2.3.1 Disqualification of Judges The principle of disqualification under article 39 is based on the prohibition of a Judges participation in a case due to the existence of a relation between the Judge and the parties or the case before him/her. As per application of article 39 there are three types of disqualification grounds: a) relationship with the accused or victim in the case (article 39(a)) b) relationship with other participants in the process (article 39(c)) c) relationship with the process itself (article 39(c) and (d)) The process for questioning the existence of disqualifying grounds is dealt with by article 41. Prior Intervention of the Trial Judge In relation to Judges disqualification, one issue needing attention is the participation of the trial Judge during the investigation of the case; there is the need to analyze whether this previous involvement is a threat to the impartiality of the Judge during the trial. The CPC of Timor-Leste does not prohibit at any level the involvement of a Judge who participated in the investigation phase e.g. by ordering preventive detention of the accused or search of a house to be involved in the trial of the same accused. The Human Rights Committee has already called attention that an assessment of the impartiality of Judges may require the consideration of the role of a Judge in the different stages of the procedure96. The successive exercise of functions of investigating Judge and trial Judge can justifiably raise concerns in relation to the Judges impartiality since a judge who has already acquired a particularly detailed knowledge of the case during the investigation phase could already have a preformed opinion of the its outcome. International human rights jurisprudence does not establish a general rule that different Judges should have responsibilities for the investigation and trial phases of the same case. Where the judge has been involved in the investigation procedure or decision on the preventive detention of the accused, the nature of the involvement and the requirements of the relevant legislation will determine whether there are legitimate grounds for fearing that a Judge has already formed her opinion on the case.
96

See Human Rights Committee Concluding Observations , Uruguay, U.N. Doc. CCPR/C/79/Add.90 (1998).

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From its jurisprudence it is clear that the European Court of Human Rights in dealing with this issue has focused on the level of involvement by the Judge during the investigation phase; by assessing the scope and nature of the measures taken by the Judge before the trial. It has distinguished two situations; firstly where the Judge evaluated the existence of a prima facie case97 and secondly where the Judge has been consistently and directly involved in an investigation of an inquisitorial nature.98 Portuguese constitutional jurisprudence can provide considerable assistance, since the Constitutional Court has developed solid guidelines in this area. The Constitutional Court of Portugal declared in 1996 the unconstitutionality of an article in its Criminal Procedure Code which failed to prohibit a Judge who had ordered and reviewed preventive detention of an accused to take part in the subsequent trial of the same accused. The declaration of unconstitutionality was based on the view that this kind of previous involvement violated the constitutional guarantee of impartiality of the judiciary.99 The Portuguese criminal procedure code was then amended so as to provide an express prohibition following this decision of the Constitutional Court. In taking its decision, the Constitutional Court of Portugal applied the assessment which was previously developed by the European Court of Human Rights: analysis of the nature of a Judges involvement in the case before the trial and its potential to infringe upon the impartiality of judges. The Portuguese Constitutional Court made a distinction between a Judges decision in imposing a preventive detention to the accused and a Judges decision to issue a search warrant for a search or seizure; holding the position that the latter did not constitute an intrusion on the impartiality of a Judge.100 In a number of countries following the civil law tradition, including Portugal, Belgium and Austria, their respective criminal procedure codes provide for a separation of functions between Judges responsible for the investigation phase and those responsible for the trial. The United Nations Transitional Administration in East Timor followed this system.101 Since the Timorese CPC does not expressly prohibit a Judge who had been previously involved in the case from also conducting the trial, it is important to assess the role of the Judge during investigation on the new criminal procedure code so as to review a possible impact, if any, on the impartiality of the Court. According to the CPC, a Judge has the following responsibilities during the investigation phase: first interrogation of the accused issue warrants for arrests, searches and seizures assess the need to impose preventive detention and review its continuation authorize telephone tapping and seizure of correspondence take statements for future use
European Court of Human Rights, Saraiva Carvalho v. Portugal, 23 November 1993. European Court of Human Rights, De Cubber v. Belgium, 29 October 1984. 99 Constitutional Court of Portugal, Case No. 935/96 of 10 July 1996. The decision was further upheld by the same court in 1997, Case No. 706/97 of 3rd December 1997. 100 Constitutional Court of Portugal, Case No. 114/95 of 23 February 1995. 101 See UNTAET Regulation on the Organization of the Courts (2000/11), article 13.
97 98

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The role of the Judge to assess the need for preventive detention is of specific interest for the issue of impartiality (article 194 together with 183)(see Chapter III, 2. Preventive Detention). According to article 194, preventive detention can be imposed when there are strong indications that a crime punishable with imprisonment exceeding three years has been committed [by the accused] (italics added). In comparison, the Transitional Rules of Criminal Procedure established as a criteria for the imposition of preventive detention when there was evidence to support a reasonable belief that the suspect was the perpetrator (article 20(7)(b)) (italics added). In comparison the ground for assessing a prima facie case in terms of the Timorese CPC is enough indications that a crime has been committed by the accused (article 236); therefore requiring a less strict test than the one imposed by article 194. It should be recognized that the fact that the criteria for the imposition of preventive detention in the new CPC are stricter than under the previous applicable law, representing in practice a means to reinforce the principle of exceptionality of detention (see Chapter III, 2. Preventive Detention). In other CPLP members, especially Portugal and Macau, the criteria for ordering an accused to be under pre-trial detention is also strong indications. However, in both criminal procedure codes there is an express provision prohibiting a Judge who decided on the imposition and review of the preventive detention to be involved in the trial against the same accused.102 The grounds provided in the CPC of Timor-Leste for the different decision-making stages in the criminal proceedings need to be assessed in order to identify whether there is a possible threat to appearance of impartiality when the Judge ruling and reviewing the preventive detention is the same Judge conducting the trial. 2.3.2 CHALLENGING THE IMPARTIALITY OF JUDGES The Criminal Procedure Code requires a Judge to declare ex officio (at his/her own initiative) the existence of reasons for disqualification or suspicion of bias (article 41(1)). This provision is in line with the jurisprudence of the Human Rights Committee on this issue103. A recognized right can only be genuinely implemented when mechanisms are in place to challenge its violation. Article 41(2) of the CPC of Timor-Leste recognizes this principle by entitling the parties in a case, including the victim, the right to raise allegations of suspicious of bias by a Judge. The procedure to challenge the lack of impartiality of Judges is contained in articles 41 and 42. The short period for dealing with the process as established under article 42 recognizes the urgency of this matter for the overall conduct of a trial. According to this provision, it should take a maximum of 8 days for the competent Court to decide on a challenge to the lack of impartiality of a Judge. This process is of an adversarial nature, allowing the other participants in the proceedings an opportunity to reply to a Judges request to be excused or an allegation of suspicion (article 42).

102 103

Article 29 Criminal Procedure Code of Macau; article 40 Criminal Procedure Code of Portugal. Human Rights Committee Communication No. 387/1989, Arvo O. Karttunen v. Finland, 23 October 1992, para. 7.3.

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The Court competent to decide on this matter is the higher court to the Court where the Judge exercises her functions (article 41(3)). Applying this principle to the current Court structure in Timor-Leste means that the Supreme Court of Justice (SCJ) is the court with competence to decide this issue. The box below summarizes this procedure.

The procedure for challenging the impartiality of a Judge in terms of the CPC can be represented in a 5 step process: Step 1: Requirement for the disqualification of the Judge (timeframe: 8 days from the time aware of challenge against impartiality) Step 2: Reply from relevant Judge (timeframe: 8 days from request) Step 3: Forward Request to Supreme Court of Justice Step 4: Decision on the request (timeframe: 3 days) Step 5: In case Court of Justice decides for the disqualification of the Judge, nomination of new Judge

According to the CPC, the SCJ is required to decide on whether it sees fit that the Judge continues in the case both when the Judge himself/herself requests to be excused from the case and when the issue of lack of impartiality is raised by one of the parties. Care must be given if deciding to reject a Judges own request to be excused in a case. The parties on the case, and in particular the accused, might feel in most uncomfortable position by knowing that the Judge has already expressed his/her views that s/he is not capable of judging the case impartially, but his/her request to be removed from the case was rejected by the SCJ.104 In case the SCJ declares a Judge to be unsuitable to continue participating in a case, a new Judge will be appointed following the applicable rules of appointment (article 44 of CPC). The consequences of a decision to remove a Judge because of the existence of disqualification or suspicion grounds are provided by article 43. According to article 43(1), all acts carried out before challenging the lack of impartiality of a Judge are valid unless it is shown that their validity can result in disadvantage to the fairness of the decision. In order to understand this issue it is useful to take a comparative law approach. In the criminal procedure codes of Cape Verde, Macau and Portugal, the consequences of a Judges removal as to the validity or invalidity of prior acts depend on the reasons for the removal. In these three jurisdictions, there is a presumption of invalidity of prior acts when a Judge is removed on disqualification grounds.105 There is however a presumption of validity if removal from the case was the result of existence of bias on the part of the Judge.106 The CPC of Timor-Leste does not make any distinction similar to the one highlighted above; it provides for a presumption of validity irrespective of the ground for a Judges removal (article 43(1)).
104 See for example European Court of Human Rights, Saraiva Carvalho v. Portugal, 23 march 1994 (paras. 33 to 35) dealing with the principle that a fear of impartiality needs to be objectively justified and that even appearances may have an impact on the impartiality of a Judge. 105 See for example article 51(4) CPC Cape Verde. 106 See for example article 32(4) CPC Macau.

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The consideration of a presumption of validity of acts committed prior to disqualifying a Judge, for example because of his/her family relationship with the victim as provided by article 39 of CPC of Timor-Leste, could result in imposing on the accused the need to show that the acts of the Judge could cause unfairness to the proceeding. This situation would run counter to the interpretation of the Human Rights Committee which considers that the mere participation of a Judge in a case in which s/he should have been disqualified cannot normally be considered to be fair or impartial within the meaning of article 14 of the International Covenant on Civil and Political Rights107. National laws need to establish timeframes in order to guarantee the smooth running of the procedure. The imposition of clear timeframes in criminal proceedings is an important measure in attempting to guarantee that the trial will take place within a reasonable time. (see Chapter V, 5. The Right to be Tried Without undue Delay) According to article 45 any complaint on the lack of impartiality of a Judge brought to the attention of the Supreme Court of Justice can be denied on two grounds: expiration of the established timeframe for filing the complaint or the existence of a clearly unfounded allegation. A request for the removal of a Judge has to be filed within 8 days from the moment knowledge was acquired of the fact which could give reason to the removal of a Judge on the grounds provided by law (article 41(2)). As per interpretation of article 45(1) it is clear that this period cannot be further extended; in case the request is filed after the expiry of this timeframe the complaint will be automatically rejected. According to the CPC, filing a complaint requesting the removal of a Judge outside the legal timeframe has more profound consequences than only the rejection of the request; it results in considering the complainant a bad faith litigant, being liable to pay a fine108 (article 45(1) and (3)). The same amounts to an untimely request to remove a Judge on the basis that it amounts to a clearly unfounded allegation (article 45(2)). The CPC does not provide for similar consequences when any other timeframe is not respected or when the request is refused on the basis of clear unfounded allegation.109 The manner in which the SCJ will interpret the term clear unfounded allegation will be of utmost importance to identify any possible negative implications of article 45(2) for the overall guarantee of impartiality. The consequences of filing a request for the removal of a Judge whether outside the legal framework or whether having a clearly unfounded basis - seems, taking into account the urgent nature of this procedure as per article 42, not to have a serious negative effect on the overall proceedings, therefore creating doubts as to the need to impose a fine in these circumstances.

107 Human Rights Committee Communication No. No. 387/1989, Arvo O. Karttunen v. Finland, 23 October 1992, para. 7.3. 108 Article 23 of Decree Law 15/2003 of October 2003 establishes that this fine to be of a value between 5 and 100 American dollars. 109 The term clear unfounded allegation is also used in the CPC in article 239(b).

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The imposition of financial measures on someone who unsuccessfully raises doubts as to the impartiality of a Judge can unduly discourage participants, mainly the accused, from raising her concerns as to the bias of the Judge(s) involved in her trial issue for fear of financial liability. An appeal can be filed against the decision of the SCJ not to grant the request to remove a Judge (article 43(1)). An appeal would be heard by the full bench of the SCJ as per its competencies regulated by article 12(1)(b) of the CPC.

Human Rights Standards Article 10 Universal Declaration of Human Rights Article 14(1) International Covenant on Civil and Political Rights Principles 2, 5, 6 and 8 Basic Principles of the Independence of the Judiciary Articles 31, 119 and 123 Constitution RDTL. Relevant Provision of CPC Articles 7, 27, 35, 39, 41, 42, 44, 45, 46, 103, 121, 183 and 194

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3. THE RIGHT TO BE PRESUMED INNOCENT The right to be presumed innocent until proved guilty is an underlying principle for the treatment an accused person. It is applicable throughout the period of criminal investigations and trial proceedings, up to and including the conclusion of a final appeal. This right to be presumed innocent is guaranteed by article 34(1) of the Constitution of Timor-Leste as well as by article 14(2) of ICCPR. Article 11(1) of UDHR also recognizes the presumption of innocence as a fundamental entitlement of any person accused of having committed a criminal offence. The right to be presumed innocent relates to several other guarantees for a fair trial; its violation can result in the violation of other guarantees and vice-versa. This is clearly evidenced in the relationship between the right to an impartial Court and the presumption of innocence (Chapter V, 2.3 Impartiality of Judges). The right to remain silent and the prohibition of compelling an accused to testify against him/herself are derived from the principle of presumption of innocence (Chapter V, 9. The Right not to be Compelled to Testify against Oneself or to Confess Guilt) The Human Rights Committee has already considered that prolonged pre-trial detention potentially violates the right to be presumed innocent.110 It has also considered that one of the consequences of the principle of presumption of innocence is the prohibition for mandatory preventive detention.111 (Chapter III, 2. Preventive Detention) The guarantee of a prompt trial in criminal proceedings is also tied to the presumption of innocence.112 Delay in concluding a criminal trial can have the negative impact of portraying the guilt of the accused before the community. (Chapter V, 5. The Right to be Tried Without undue Delay) Overall, the CPC of Timor-Leste includes various aspects directly related to the application of the presumption of innocence in criminal proceedings. Some of these are discussed below. 3.1 Burden of Proof As noted by the Human Rights Committee in its General Comment on article 14 of the ICCPR, the principle of presumption of innocence means that the burden of proof of the charge is on the prosecution and the accused has the benefit of doubt. No guilt can be presumed until the charge has been proved beyond reasonable doubt.113 The standard of proof beyond reasonable doubt means in practice that a Court cannot convict an accused if there are reasonable doubts that the accused might not have committed the crime. As per article 114 of the CPC, the accused can never carry the burden of proof in a criminal proceeding. The express mention of a prohibition of burden of proof on the
110 See for example Human Rights Committee Concluding Observations, Argentina, ICCPR, A/50/40 vol. I (1995) 35 at para. 163. 111 See for example Human Rights Committee Concluding Observations, Uruguay, U.N. Doc. CCPR/C/79/Add.90 (1998). 112 See for example Human Rights Committee Concluding Observations, Italy, ICCPR, A/53/40 vol. I (1998) 50 at paras. 342, 343 and 345. 113 Human Rights Committee General Comment 13, para. 7.

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accused is an aspect found in the criminal procedure codes of other countries following the civil law tradition, including Portugal and Guinea-Bissau. The direct consequence of this principle is the need for the prosecution to present evidence which can support the allegation of a commission of a crime by the accused. The CPC provides that the responsibility of the burden of proof is on the prosecution, however it does not expressly provide that the standard of proof needed to a Court to convict an accused is one of beyond reasonable doubt.114 Despite a lack of an express provision establishing the standard of proof as one of beyond reasonable doubt, the factors listed in article 278 as the factors which the Judge(s) need to consider in deciding theverdict of the case implies a consideration of the criteria of proof beyond reasonable doubt as required under international human rights law. As a direct consequence of the burden of proof of the prosecution, the prosecution has to present its evidence first to then be followed by the presentation of evidence by the defence (article 265). Article 265(3) gives the Court the possibility to decide to change the order of presentation of the evidence if this change would be convenient for the discovery of the truth.115 A Judge should be entitled to order change to the order of the roll of witnesses for the prosecution or the defence if it is important for the smooth running of the proceedings, including for timing reasons (e.g. when one of the witness is not yet present at the hearing); this power is provided by article 245 of the CPC. Article 265(3) clearly goes further than article 245 by allowing a change to the order of the presentation of the case for the prosecution and for the defence. Under Portuguese law, a Judge has the power to decide to change the order of presentation of evidence (article 323(a) of criminal procedure code of Portugal). The Courts of Portugal, including at appeal levels, have consistently interpreted that in order not to violate the presumption of innocence a Judge can only instruct to change the order of the presentation of the evidence only when the accused expressly consents to this change.116 3.2 Treatment of Accused by Authorities The manner in which the authorities treat an accused can also have an impact on his/her sense of being presumed innocent117. It is important to treat every accused with the most diligent care in order to prevent any appearances that violate ones right to be presumed innocent. Rule 33 of the Standard Minimum Rules for example, lays down the need to remove instruments of restraints when a detainee or prisoner appears before a judicial or other authority. The CPC of Timor-Leste, when referring to measures used to maintain order, to guarantee the security and the prevention of flight of the accused, requires a condition of necessity to use such measures (article 73). The CPC provides for different levels of necessity; strictly necessary is the standard applicable to allow the use of measures during the interrogation of an accused as per article 62(1),
The Criminal Procedure Code of Peru, for example, expressly mentions the criteria of beyond reasonable doubt. Article 11(1) of Decree Law 957, 29 July 2004. See also article 7 of the Colombian Criminal Procedure Code (Law 906/2004), 31 August 2004. 115 Similar power is also given under other CPLP members national jurisdiction, for example by the Criminal Procedure Codes of Guine Bissau (article 241), Cape Verde (article 374(2)), Macau (article 304) and Portugal (article 323). 116 See for example Lisbon Appeal Court, Case No. 10148/05, 9th Session, 26 January 2006. 117 See Human Rights Committee General Comment 13, para. 7.
114

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while necessary and adequate is the criteria applicable during the trial as in article 245(1). In relation to the use of restraints instrument during interrogation, the CPC article 62(1) - is consistent with the Standard Minimum Rules as it requires categorically that restraints be removed during interrogation. Other aspects related to the treatment of accused by authorities are regulated by prison services and police regulations. 3.3 Criminal History of an Accused According to the Timorese CPC, information on the criminal history of an accused can be requested during his/her interrogation by a Judge (articles 61(a) and 62(3)) and in the declaration of the accused during trial (articles 61(a) and 268), as well as once the indictment is accepted by the Court (article 240). Article 61(a) states that an accused has the duty to answer truthfully questions about his/her criminal history. According to article 62, the non-compliance with this duty can give rise to criminal liability. Article 267(2) of the Draft Criminal Code imposes a penalty of up to 4 years imprisonment on an accused who refuses to answer or provides a false response to questions related to his/her criminal history. A Judges decision to accept the prosecutions indictment and schedule the hearing for trial contains a request for a copy of the criminal record of the accused to be incorporated to the case file (article 240 CPC). According to the wording used by article 240, the criminal record of the accused is automatically attached to the case file. The provisions described above are of relevance to both the right to remain silent and the right to be presumed innocent. The knowledge of a Judge about previous criminal convictions of an accused can also be of significance when considering Judges impartiality (Chapter V, 2.3 Impartiality of Judges). To date, international human rights mechanisms, including the Human Rights Committee, have not yet developed any jurisprudence in the area of access to the criminal history of an accused person. On this matter, the position of the Constitutional Court of Portugal can be of assistance. The Constitutional Court of Portugal declared the imposition of a duty on the accused to provide information on his criminal history to be unconstitutional, finding that this requirement violated the right to remain silent.118 It also expressed the opinion that the consideration of other issues which are not of relevance to decide on the guilt of an accused has the potential of contravening the right to be presumed innocent.119 The courts access to the criminal history of an accused is unquestionably important for the sentencing stage of a trial since punishment is aimed at the re-integration of the person in the society and therefore it is legitimate to the Court to identify whether an accused has previously been convicted of another criminal offence in identifying the best suitable punishment for an accused. According to the Draft

118 119

Constitutional Court of Portugal, Case No. 695/95, 24 April 1996. Ibid. 66

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Criminal Code, the issue of repeated offence by the accused is one of the factors which need to be taken into account in determining the applicable sentence.120

Human Rights Standards Article 14(2) International Covenant on Civil and Political Rights Article 11(1) Universal Declaration of Human Rights Rule 33 Standard Minimum Rules Article 34 Constitution RDTL Relevant Provision of CPC Articles 60, 61, 62, 73, 114, 240, 245, 265 and 278

120

See article 54 of the Draft Criminal Code. 67

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4. THE RIGHT TO A PUBLIC HEARING The right to a public hearing is an essential safeguard for the fairness and independence of the judicial process, and a means to promote public confidence in the justice system. The publicity of hearings reflects the interest of the individual as well as that of society at large.121 Public access to the hearings also allows for an important degree of scrutiny of the judiciary by the public with a view to ensuring the right to a fair trial. As a minimum, every person charged with a criminal offence has the right to public proceedings in the Court of first instance and at all levels of appeal proceedings if the appeal concerns an assessment of both facts and law including the question of guilt (see Chapter V,13. The Right of Appeal). The right to a public hearing in criminal 14(1) of the ICCPR and article 131 of provisions acknowledge that all or some established grounds, be excluded from the cases is expressly guaranteed by article the Constitution of Timor-Leste. These members of the public may, on certain hearings.

The general rule of publicity of a trial is provided in articles 75 and 247 of the CPC of Timor-Leste. According to article 75, the publicity of the proceedings entails the right of the media and the general public to attend the proceedings, to report in a detailed account the content of the proceedings as well as to consult and copy documents contained in the court files122. Audio or video recordings of the proceedings require prior authorization from the court (article 75(5)); such a requirement aims at protecting the rights of the victim and the accused, including the presumption of innocence of an accused (Chapter V, 3. The Right to be Presumed Innocent). In relation to the public character of the proceedings as upheld by article 75 above, it should be observed that the process is public only after the presentation of the indictment (article 75(1)). In practice, this means that every step taken before the presentation of the indictment investigation, collection of evidence as well as the first interrogation of the detained accused - is conducted without publicity. The rationale for this is the need to guarantee an effective investigation while reducing the risk of interference. 4.1 EXCLUSION OF THE PUBLIC Public access to hearings may be restricted in certain narrowly defined circumstances. The rationale for not allowing access to the public in defined circumstances is to guarantee recognized interests, including the presumption of innocence of an accused and the dignity of the victims (see Chapter V, 3. The Right to be Presumed Innocent). The grounds on which the public and the press may be excluded from all or part of the hearings are established in article 14(1) of the ICCPR.

121 122

Human Rights Committee General Comment No. 13, para.6 The right to obtain access to court files is further regulated under article 77(1).

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Article 14(1) of the International Covenant on Civil and Political Rights identifies 5 grounds for the exclusion of the public: Morals (for example, hearings involving sexual offences) Public order (primarily relating to order within the courtroom) National security in a democratic society Interests of juveniles or the private lives of the parties requires Special circumstances where publicity would prejudice the interests of justice, only to the extent strictly necessary in the opinion of the Court The Human Rights Committee has stated that the grounds under article 14(1) are exhaustive and exceptional; it further considers that in general a hearing must be open to the public, including members of the press, and must not, for instance, be limited only to a particular category of persons.123 Article 76(1) of the CPC of Timor-Leste is the regulatory provision for the nonpublicity of hearings. It states: Exceptionally, the court may, in whole or in part, restrict the public character of a proceeding, provided that the specific circumstances surrounding the case so advise, as a way of preserving other values, notably public morals and human dignity. The overall justification for the non-publicity of the proceeding is the intention to protect other values, such as public morals and human dignity. Differently from article 14(1) of the ICCPR the wording used in article 76(1) does not provide for an exhaustive list to restrict access to the public to hearing, but provides only two examples of values needing protection. Subsection 5 of article 76 establishes that hearings related to sexual criminal offences where the victim is a child - less than 18 years - are closed to the public. It does not provide for any other ground to justify the restriction of the public character of a hearing, but is one of the circumstances which would fall within the ground of public morals and privacy of the victim provided by article 14(1) of the ICCPR. Because of the higher position held by international human rights treaties in comparison to national laws in Timor-Leste124, the grounds established by article 76(1) of the CPC need to be applied within the limits identified by article 14(1) of the ICCPR . 4.2 THE RIGHT TO A PUBLIC JUDGEMENT Despite the non-publicity of the trial hearings, the judgement must, with certain strictly defined exceptions, be made public (article 14(1) ICCPR).125 The publicity of judgements related to trials held in closed session aims at guaranteeing some decree of scrutiny by the public. Article 76(2) of the CPC regulates this issue by providing that the limitation on the public character of a proceeding shall never cover the reading of a sentence or the
Human Rights Committee, General Comment No. 13, para. 6. Article 9 of the Constitution of RDTL. 125 See for example Human Rights Committee Communication No. 28/1978, Weinberger v. Uruguay, 29 October 1980, paras. 12 and 16 and Communication No. 32/1978, Tourn v. Uruguay, 31 March 1981,paras. 8, 11 and 12.
123 124

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decision. This principle is put in practice by application of article 279(3) which requires the final decision of the trial to be read during a public hearing. In order to be meaningful, the publicity of a judgement has to extend to the public character of its written judgment. Individuals who want to attend the hearing where the final decision is read aloud do not need to show a specific interest in order to be present. The same principle shall apply in relation to access to the written judgment of a decision which has already been rendered public in terms of the applicable procedure. A different position would render the guarantee of public judgment obsolete in many circumstances.

Human Rights Standards Article 10 Universal Declaration of Human Rights Article 14(1) International Convention on Civil and Political Rights Article 131 Constitution of Timor-Leste Relevant Provisions of CPC Articles 75, 76, 247 and 279

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5. THE RIGHT TO BE TRIED WITHOUT UNDUE DELAY The right to be tried without undue delay is applicable to all trials in relation to every person who is charged with a criminal offence (Article 14(3)(c) ICCPR). Application of this standard to detainees results in the need to release the detained person in case s/he is not brought to trial within a reasonable time (article 9(3) ICCPR and principle 38 of Body of Principles)(see Chapter III, 2. Preventive Detention). The main purpose of this guarantee is to ensure that those awaiting trial on criminal charges do not suffer unduly prolonged restriction on their human rights and freedoms, and that the defence of the accused is not undermined by the passage of unwarranted amounts of time, during which witnesses memories may fade or become distorted, witnesses may become unavailable, and other evidence may be destroyed or disappear. The right to be tried promptly encapsulates the phrase that justice delayed is justice denied. In guaranteeing that a proceeding takes place within a reasonable time a balance must be struck between the right of the accused to adequate time and facilities to prepare the defence and the need to guarantee that proceedings will start and be concluded without undue delay (see Chapter V, 6. The Right to Defend oneself in Person or through a Lawyer of ones own Choice). From an institutional perspective, it is important to observe that the prolonged length of judicial proceedings can result in an unacceptable backlog of cases, including of cases of human rights abuses.126 The Human Rights Committee has stressed that the right to be tried without undue delay is a guarantee that relates not only to the time by which a trial should commence, but also the time by which it should end and judgement be rendered; all stages must take place without undue delay. To make this right effective, a procedure must be available in order to ensure that the trial will proceed without undue delay, both in first instance and on appeal127. This view has been further emphasized in the Committees jurisprudence, according to which articles 14(3)(c) and 14(5) (on appeal) must be read together so that the review of a conviction and sentence must be conducted without delay.128 What is to be considered as undue delay or unreasonable time depends on the circumstances of each individual case. Elements to be considered include: national legislation, whether the accused is in custody, the complexity of the case, the conduct of the accused and the conduct of the authorities.129 With respect to the factor of complexity of a case and its impact on the assessment as to whether the trial has been completed within reasonable time, aspects such as the number of charges faced by the accused, the nature of the investigation required, the number of people allegedly involved in the crime and the number of witnesses could also be taken into account.

Human Rights Committee Concluding Observations, Colombia, CCPR/C/79/Add.76, 5 May 1997, para. 20. Human Rights Committee General Comment 13, para. 10. 128 Human Rights Committee Communications Nos. 210/1986 and 225/1987, E. Pratt and I. Morgan v. Jamaica, 6 April 1989, para. 13.3. See also Communication No. 27/1978, Pinkney v. Canada, 29 October 1981, para. 22. 129 Human Rights Committee Communication No. 390/1990, B. Lubuto v. Zambia, 31 October 1995, para. 7.3.
126 127

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The accused is, of course, not obliged to renounce any of her procedural rights in order to assist the conduct of a speedy trial. However, if the accused attempts to abscond or fails to cooperate (for example by failing to choose counsel or to appear at hearings) consequent delays will not be taken into account to review whether the trial has been conducted promptly. The authorities have a duty to expedite the proceedings. If they fail to advance the proceeding due to neglect, allow the investigation and proceeding to stagnate or if they take an unreasonable time to complete specific measures, they might be responsible for violating the right to be tried without undue delay. For anyone charged with a criminal offence and held in preventive detention, the obligation on the authorities to expedite the trial is even more pressing. International standards require that a person charged with a criminal offence be released from detention pending trial if the time considered reasonable in the circumstances is exceeded.130 (see Chapter III, 2. Preventive Detention). A countrys difficult economic situation is not considered as justification for not complying with the ICCPR.131 In view of the fact that the assessment as to whether a proceeding has been completed within a reasonable time is done on a case-by-case basis, this section of the guide only addresses the provisions of the Timorese CPC which gives the Court guidance to hold a trial without undue delay. 5.1 TIME LIMITS ESTABLISHED BY THE CRIMINAL PROCEDURE CODE The imposition of time limits in national laws is an important mechanism in implementing a trial without undue delay. As stated in its Preamble, one of the aims of the new Timorese CPC is to establish a pattern of procedural steps as simplified as possible, aiming at establishing procedural expeditiousness as a tool capable of ensuring greater effectiveness in preventing crime132. The new CPC of Timor-Leste encompasses a number of provisions establishing timeframes to address the problem of undue delays which have hampered the effective functioning of the Timorese judicial system for the past 4 to 5 years. Some of the provisions which have the potential to guide the conduct of the criminal proceedings within a reasonable time are: Establishment of a general timeframe for procedural acts (article 79) Provision for the separation of proceedings in cases with multiple accused (article 25) Provision for undertaking urgent acts while waiting for a decision on the competence of the Court or the prosecutor (article 30) Possibility of separating the decision on the victims compensation from the criminal proceedings in order to prevent delays (article 72(4))
See for example Human Rights Committee Communication No. 473/1991, del Cid Gmez v. Panama, 19 July 1995, para. 46. 131 Human Rights Committee Communication No. 390/1990, B. Lubuto v. Zambia, 31 October 1995, para. 7.3. 132 Preamble Criminal Procedure Code, para. 6.
130

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Provision of strict conditions for the postponement and adjournment of hearings (articles 250 and 255) Establishment of rules for the replacement of absent prosecutors and defence lawyers (article 260) Possibility to change the order for the presentation of evidence, including witnesses, so as prevent delays (article 271(1)) Established timeframes for the trial Court to issue and pronounce the decision and sentence of a case (article 279) Further, the CPC expressly considers that the trials related to accused under preventive detention are of priority (article 80). Article 80 also stipulates that in relation to these cases the general timeframe for the completion of the procedural acts as regulated by article 79 is not suspended during Court recession. The establishment of set timeframes for the conduct of the investigation is also of importance. The identification of a date for an investigation to be completed has the potential to bring some sense of security and predictability to the accused; it also assists the victim in her attempt to follow up closely the development of the case. The Committee against Torture has already expressed its view that a reasonable time limit should be set for preliminary investigations.133 According to the aims in the Preamble, the CPC attempts to identify timeframes for conducting an inquiry, particularly where defendants have been placed under preventive detention or in particularly complex cases which are adequate to the Timorese judicial reality.134 Article 232(1) determines a period of 6 months for concluding investigation in cases where the accused is under preventive detention; in cases of great complexity this period can be extended for further 6 months by an order of the public prosecutor (article 232(2)). Regard should be given to the fact that the timeframes for the review of preventive detention (article 196) and that for the investigation as per article 232 are the same: 6 months (see Chapter III, 2. Preventive Detention). With this corresponding timeframe, the decision of the Judge in reviewing the need for the continuation of the detention can provide guidance to the public prosecutor in her evaluation as to whether the investigation time needs to be extended. For a non-detained accused, the investigation can take up to 2 years; an initial one year with the possibility of extension for the same period (article 232(2)). The CPC lacks clarity as to the consequences, if any, of the expiration of the timeframes for the conclusion of the investigation. It would clearly not result in invalidation of the act since no express reference is made to this in article 102. The expiration of these time limits does not seem to demand the closure of the investigation as the expiration of the investigation timeframe is not a listed ground under article 235. The expiration of the prescribed timeframe could nonetheless be considered as an irregularity as provided in article 107, and steps could be taken to correct it. Consideration should be given to the fact that the identification of a maximum timeframe does not necessarily mean that every investigation conducted within the
133 134

Committee against Torture, Concluding Observations, Argentina, CAT, A/53/44 (1998) 8, para. 68. Preamble Criminal Procedure Code, para. 7. 73

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legally established timeframe would be considered to have been conducted within a reasonable time in terms of international human rights standards. As the vast jurisprudence of the Human Rights Committee on this issue points out, the assessment of reasonableness needs to be assessed on a case-by-case basis. The Timorese CPC fails to identify a timeframe for the scheduling of the trial; article 240 provides no guidance of any timelines which should be followed in relation to the scheduled hearing and the date the indictment is accepted by the Court. It should be noted that this is different various criminal procedure codes of countries following the civil law tradition, including CPLP members. The time frame in Cape Verde is of 45 days (article 339); Montenegro (article 291), Serbia (article 283), Macau (article 294) and Portugal (article 312) provide for the possibility of a lapse of a 2 months period between the acceptance of an indictment and the commencement of the trial. The CPC also fails to identify a timeframe for the hearing or handing down of a decision on appeal. 5.2 Expedited Procedure An expedited procedure, as its denomination already points out, aims primarily at providing the opportunity to deal quickly with a case before the Courts. The Timorese CPC provides for an expedited procedure in relation to offences which carry less than 5 years imprisonment when the accused has been arrested in flagrante delicto (article 346)(see Chapter I,2. Procedures under the Criminal Procedure Code of Timor-Leste). The reality in these cases, there may be an opportunity to reduce the time for investigation because the accused was caught in flagrante delicto and the evidence needed to file an indictment is already available. An expedited procedure as regulated in the CPC of Timor-Leste is intended to start within 72 hours from the time of the arrest of the accused caught in flagrante delicto (article 346(2)). Regard should be given that an attempt to hear a trial as expeditiously as possible can ensure its conclusion within a reasonable time as well as it can assist in the overall efficiency in the administration of justice; however an expedited trial should not have adverse consequences to defence guarantees, including the right to have adequate time to prepare a defence (see Chapter V, 7. The Right to an Adequate Time and Facilities to Prepare Ones Defence). In conducting a trial through expedited procedure, the CPC of Timor-Leste does not identify any timeframe between the date of the arrest and the trial, for those cases in which the hearing could not take place within the envisaged 72-hour period (article 346(3)). Article 346(3) provides that irrespective of being impossible to conduct the trial within the 72 hours, the proceeding will maintain its expedited nature until its conclusion. Equivalent laws in Macau, Cape Verde and Portugal do identify a deadline; an expedited trial has to start within a maximum of 30 days between the date of the arrest and the date of the trial.135. To allow an expedited trial to take place within an indeterminate period of time has the potential to go against the rationale of an expedited trial. The expedited procedure included in the CPC of Timor-Leste provides for certain procedures which are directly related to fair trial guarantees, including the right to
135

See for example article 417(3) of the Criminal Procedure Code of Cabo Verde.

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defence (limitation as to the number of witnesses, article 348(3)) and the right of appeal (limiting the appeal against the final decision or the decision to use the expedited procedure, article 350). International jurisprudence on the administration of justice and fair trial standards has not voiced any extensive opinion on the use of expedited procedures or trials. Irrespective of the specificities of the procedures to be followed in any kind of trial, all minimum fair trial guarantees must be complied with.

Human Rights Standards Article 9(3) and 14(3)(c) International Convention on Civil and Political Rights Principle 38 of the Body of Principles Relevant Provisions of CPC Articles 25, 30, 72, 79, 80, 232, 240, 250, 255, 260, 271, 279, 346, 348 and 350

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6. THE RIGHT CHOICE

TO

DEFEND

ONESELF IN

PERSON

OR THROUGH A

LAWYER

OF ONES OWN

Article 14(3)(d) of the ICCPR guarantees the right of anyone charged with a criminal offence to defend herself in person or through legal assistance of her own choice.136 The Constitution of Timor-Leste provides in its article 34(2) that 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 in which the presence of the lawyer is mandatory. In addition, article 26(2) provides that justice shall not be denied on the ground that an accused does not have sufficient economic means. For the right of defence to be meaningful, the accused must also enjoy the right to be present at trial (Chapter V,8. The Right to be Present at Ones Trial) and to defend herself in person. An accused also has the right to be assisted in her defence by a counsel; a right which includes the right to choose a counsel or, in cases where the interest of justice so requires, to be assigned counsel, free of charge. The accused and her counsel, if any, must be given adequate time and facilities to prepare the defence (Chapter V, 7. The Right to an Adequate Time and Facilities to Prepare Ones Defence). Further, the accused must be given opportunities equal to that of the prosecution to present her case (Chapter V), including the right to call and examine witnesses (Chapter V, 10. The Right to Call, Examine, or have Examined, Witnesses). The right to be defended by counsel includes the right to notification of the right to counsel, the right of access to and confidential communications with counsel and the right to assistance by a counsel of choice or by a qualified appointed counsel. Because of the importance of trust and confidence between the accused and her lawyer, the accused may generally freely choose a lawyer to represent her before the Court (Principle 1 of the Basic Principles on the Role of Lawyers).137 An accused, however, is not entitled to an unrestricted right to choose assigned counsel, if the State is paying the costs of the lawyers services. The right of access to legal counsel starts from the moment an individual is deprived of her freedom (Chapter III: Human Rights during Arrest and Preventive Detention). Article 60(d) of the Timorese CPC provides the general framework for the right to be represented by a lawyer. It entitles an accused to be assisted by a lawyer when she so desires and when the law considers it to be compulsory. 6.1 COMPULSORY LEGAL ASSISTANCE According to article 68 of the CPC, legal assistance is compulsory in all hearings, during the first interrogation of a detained accused, as well as from the filing of an indictment up to the appeal. This same provision also considers legal representation compulsory for the presentation of complaints on behalf of the accused (article 68(c)). The application of this provision means that a trial in Timorese Courts should not take place when the accused is not represented.
See Human Rights Committee General Comments No. 13, para.11. Human Rights Committee Communication No. 74/1980, Estrella v. Uruguay, 29 March 1983, para. 95. 138 Human Rights Committee, Concluding Observations, Senegal, ICCPR, A/48/40 vol. I (1993) 23 at para. 104.
136 137

138

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Article 68 Compulsory Assistance Assistance by a defender is compulsory: (a) in the first questioning of a defendant held under arrest or detention; (b) from the time the indictment is presented until such a time as a decision is rendered final, particularly in lodging an appeal; (c) in filing claims; (d) in such other cases as stated in the law.

One of the consequences of the compulsory nature of assistance is that in cases where an accused has not appointed her legal representative, one will have to be nominated by the judicial authority responsible for the phase of the proceeding in question (articles 66(2) and 240(1)(a)). An accused can also be legally represented in other phases of the process in addition to those listed under article 68, since every accused can request freely the assistance of a lawyer as per article 60(d) of the CPC and article 34 of the Constitution. 139 (see Chapter IV, 2. Guarantees during Interrogation)

The compulsory nature of the legal assistance in certain phases of the proceedings means that the proceeding will not be able to take place when the counsels presence cannot be guaranteed. It should be recognized that the protection afforded by the Timorese CPC is considerably more extensive then the minimum standard required by the ICCPR. However it should be noted that the CPC, in article 68, does not include the review of security measures imposed in case of incapacity due to mental illness140 as one of the proceedings which demand legal assistance to the convict person. The compulsory nature of legal representation of a convicted person in the procedures for the review of security measure for mental illness is not clearly provided in the Timorese CPC. According to article 344(2) of the CPC, a Court shall review the grounds for the imposition of a security measure on a yearly basis, this review procedure has to be preceded by a hearing of the public prosecution and of the convicted person or her legal representative. The European Court of Human Rights has decided that those under detention on account of mental illness should unless there are exceptional circumstances always receive legal assistance during the proceedings to review the continuation, suspension or termination of the detention. The importance of what is at stake for the person under detention personal liberty taken together with the very nature of her affliction diminished mental capacity were the main factors considered by the Court to conclude on the necessity of guaranteeing legal representation during the review procedures for the imposition of psychiatric security measures before Portuguese Courts.141 In addition to having the possibility to get legal representation, an accused should also be given the opportunity to choose not to be represented and conduct her
See for example the deep distinctions between the regulation of CPC Timor-Leste and Uruguay during the 70s where persons did not actually have the right to have legal assistance before an indictment was filed; Human Rights Committee Communication No. 6/1977, Miguel A. Millan Sequeira v. Uruguay, 29 July 1980. 140 In Timor-Leste sentence of this nature is to be regulated by articles 93 to 96 of the Draft Criminal Code. 141 European Court of Human Rights, Magalhes Pereira v. Portugal, Application no. 44872/98, 26/05/2002, para. 57.
139

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defence on her own or to take steps within the proceedings without the assistance of a lawyer. 6.2 THE RIGHT TO FREE LEGAL ASSISTANCE In accordance with international human rights standards, counsel free of charge should be provided to an accused when the accused has no financial means to pay for the legal services and when the interest of justice demands this assistance (article 14(3)(d) of the ICCPR and Principle 6 of the Basic Principles on the Role of Lawyers). Since the CPC of Timor-Leste provides for the compulsory presence of a lawyer in a number of instances as described above, in practice the main assessment in determining whether an accused is entitled to receive free legal assistance will be based on the determination of the financial means of the accused. According to principle 3 of the Basic Principles on the Role of Lawyers, [g]overnments shall ensure the provision of sufficient funding and other resources for legal services to the poor and, as necessary, to other disadvantaged persons. Professional associations of lawyers shall cooperate in the organization and provision of services, facilities and other resources. In Timor-Leste the Office of the Public Defenders provides assistance free of charge to those without the financial condition to pay for counsels services. This Office is structurally placed under the Ministry of Justice and therefore is financed through the government budget. (see Chapter I, 1. General Aspects of the Criminal Procedure Code). The Timorese CPC does not make any clear reference whatsoever to the right of an accused to receive free legal assistance during the criminal proceedings. Article 66 however specifically mentions the role of a public defender as the legal representative of an accused, meaning in practice that an accused can be represented free of charge through the services offered by the Public Defenders Office. The right to free legal assistance should not only relate to first instance proceedings, but should be extended to assistance at appeal levels.142 Article 68(b) of the CPC explicitly mentions that legal representation is compulsory during appeals; the application of articles 66 and 68 would mean in practice that every accused can avail him/herself of free legal services in relation to proceedings before the Supreme Court of Justice of Timor-Leste. 6.3 THE RIGHT TO PRIVILEGED COMMUNICATIONS WITH ONES LAWYER Article 14(3)(b) of the ICCPR considers as part of the minimum guarantees for a fair trial the need to ensure that an accused can freely communicate with her counsel. The Human Rights Committee has explained that this provision requires counsel to communicate with the accused in conditions giving full respect for the confidentiality of their communications.143 Confidentiality of the communication between a lawyer
Human Rights Committee Communication. No. 707/1996, P. Taylor v. Jamaica, 14 July 1997, para. 8.2. See also Human Rights Committee, Concluding Observations, Mauritius, ICCPR, A/51/40 vol. I (1996) 24 at para. 161. 143 Human Rights Committee General Comment No. 13, para. 9.
142

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and her client needs to be particularly respected in those cases where the accused is detained and therefore under the custody of State authorities (principle 18 of the Body of Principles). The State is under the obligation to ensure that its authorities will not unlawfully interfere with communications between a lawyer and her client (principle 22 Basic Principles on the Role of Lawyers). Article 136(2) of Timor-Lestes Constitution recognizes that lawyers should be entitled to communicate personally and confidentially with their clients. Subsection 1 of article 136 further recognizes the inviolability of documents related to the exercise of a lawyers profession, requiring that any search, seizure or other judicial measures can only be carried out in the presence of a competent Judge. The right of an accused to have confidential communication with her lawyer is closely related to the right of privacy provided by article 36 of the Timorese Constitution and article 17 of the ICCPR. Communications between an accused and her lawyer should not be admitted as evidence unless they are connected with a continuing or contemplated crime (principle 18 Body of Principles). In virtue of the confidential nature of this relationship, information exchanged between a lawyer and her clients is considered as a professional secret. A person who is requested to provide information or to testify in Court can claim her duties towards professional secrecy as a legitimate ground to refuse to testify or otherwise provide information. Article 126 of the CPC provides that a lawyer may refuse to testify in relation to facts which are protected by her duties of confidentiality (article 126(1)). If the Court has reasoned suspicion to doubt the reliance on the professional secrecy it can undertake necessary enquiries in order to determine whether legitimate grounds exists for relying on professional secrecy in the specific case before the Court. In case the Court concludes that there is no client-lawyer confidentiality issue involved, the Judge will order the lawyer to testify in the proceedings (article 126(2)). In case the professional secrecy is confirmed, the secrecy can nonetheless be broken by an order of the Supreme Court of Justice if the latter considers it to be justifiable in the face of the applicable norms and principles of the criminal law, particularly in view of the principle of prevalence of the predominant interest (article 126(3)). In determining whether the break of a client-lawyer relationship should be ordered, the SCJ is under the duty to hear the organ representing the lawyers profession (article 126(5)). The Human Rights Committee in its consideration of the third periodic report of Portugal to the ICCPR in 2002 expressed concern that lawyers may be required to give evidence, despite their duty of confidentiality, in cases which are described in very broad terms by the Code of Criminal Procedure. In accordance with the Portuguese CPC, a superior court can break the professional secrecy of a lawyer when there are justifications in the face of the applicable norms and principles of the criminal law, particularly in view of the principle of prevalence of the predominant interest.144 The Human Rights Committee further recommended the Portuguese authorities amend their legislation so that it specifies the precise

144

Article 135(3) of the Portuguese Criminal Procedure Code. 79

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circumstances in which limitations on the professional privilege of lawyers can be imposed.145 The issue of the secrecy of communication between a lawyer and a client is also taken into account by the CPC in relation to the use of telephone tapping and search on a lawyers office. According to article 177(2) of the CPC it is prohibited to have a communication between the accused and her lawyer recorded unless there is strong evidence of the involvement of the lawyer in a criminal offence (see Chapter IV, 1. The Right to Respect for Ones Private Life, Home and Correspondence). The CPC, following the Constitutional framework in this regard, requires a written authorization for the search of a lawyers office and also requires the presence of the competent Judge at the time the search is being carried out by the police or public prosecution services (article 226(1)(e)). The principle of professional secret is aimed at affording protection to the client; therefore where the client has expressly waived his/her right to confidentiality of communication with his/her lawyer professional secrecy needs no longer to be maintained and information or evidence collected can lawfully be used in Court.146 6.4 Quality of Representation and Representation by Non-Lawyers Defence lawyers must act freely and diligently in accordance with the law, recognized standards and ethics of the legal profession. They must advise their clients of their legal rights and obligations, and inform them about the legal system. Further, they must provide assistance to their clients in every appropriate way, taking such action as is necessary to protect their clients rights and interests, and assist their clients before the courts (principle 13 Basic Principles on the Role of Lawyers).147 The assignment of a legal counsel does not in itself ensure that an accused will receive effective assistance. According to the Human Rights Committee, authorities have a special duty to take measures to ensure that the accused is effectively represented during criminal proceedings.148 When a judicial authority nominates a counsel to represent the accused, the authorities must ensure that the lawyer assigned has the experience and competence commensurate with the nature of the offence of which her client is accused (principle 6 of the Basic Principles on the Role of Lawyers). Despite this, the Human Rights Committee has consistently expressed its view that a State cannot be held responsible for the conduct of a defence lawyer, unless it was or should have been manifest to the Judge that the lawyer's behavior was

Human Rights Committee, Concluding Observations, Portugal, CCPR/CO/78?PRT, 5 July 2003, para.18. U.N. Doc. CCPR/CO/78/PRT (2003), para. 18. 146 Human Rights Committee Communication No. 305/1988, Hugo van Alphen v. The Netherlands, 23 July 1990, para. 5.7. 147 See also Human Rights Committee General Comment No. 13, para. 9 148 Human Rights Committee Communication No. 253/1987, Kelly v. Jamaica, 8 April 1991, para. 5.10]. See also Human Rights Committee Concluding Observation, United States of America, UN Doc. CCPR/C/79/Add.50, 7 April 1995, para.23.
145

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incompatible with the interest of justice.149 Measures which could be taken by a Judge in this sphere range from calling the attention of the lawyer to suggesting to an accused to have her lawyer substituted. The CPC in its article 66(4) provides that a lawyer can be substituted following a request of the accused or the lawyer herself when there are justified reasons for the change of legal representative; no explicit mention is made to a Judges role in promoting or suggesting that a lawyer be replaced in view of the inability to provide a defence of quality. Despite no express mention, this kind of measure could be taken by a Judge within a Judges general power to direct the proceedings as provided by article 245 of the CPC. Article 260 of the CPC of Timor-Leste provides for the substitution of an appointed lawyer in case that she fails to attend a hearing. Article 260(2) provides that: The () defender [will be substituted] by a competent person, preferably a lawyer or law graduate, under the penalty of irreparable nullity. In practice the application of article 260 would allow for the delay of holding a hearing so as to give the Court the opportunity to identify a replacement of a counsel who is not in attendance. The CPC Timor-Leste states that the replacement should preferably, but not necessarily, have a legal background. This same rule is applied in the Courts of Guinea-Bissau150, while the criminal procedure codes of Portugal151 and Cape Verde152 expressly require that with the replacement should be a lawyer or a trainee lawyer. In 2002 the European Court of Human Rights expressed its disagreement with the decision of the Portuguese Constitutional Court which considered that the appointment of a non-lawyer was valid and did not run counter the right to defence as guaranteed by the Portuguese Constitution.153 In the case of Magalhes Pereira, the European Court of Human Rights considered that even though the appointment [of a prison official] appeared to be valid under domestic law and consistent with the case-law of the Constitutional Court, it cannot, in the Court's view, be regarded as adequate representation for the applicant.154 Regarding replacement of a defence lawyer who fails to appear at the scheduled hearing, the non mandatory requirement of a legal background, article 260(2) of the CPC requires that only a person with competence can be appointed as a substitute to a legal counsel not in attendance; in case the substitute person shows not to have the skills necessary to effectively represent the accused, the continuation of the hearing would be rendered invalid (article 260(2)). In 1983 the Human Rights Committee expressed its view in the communication of Vasilskis that the appointment of a Colonel as a defence counsel violated the right of defence safeguarded by article 14(3)(d) of the ICCPR.155 It is important to observe
149 Human Rights Committee Communication No. 580/1994, Ashby v. Trinidad and Tobago, 21 March 2002, paras. 4.2 and 10.4. See also European Court of Human Rights, Daud v. Portugal, para. 38. 150 Article 236(2). 151 Article 330(1). 152 Article 361(1). 153 See Constitutional Court of Portugal, Decision No. 59/99, 2 February 1999. 154 European Court of Human Rights, Magalhes Pereira v. Portugal, Application no. 44872/98, 26/05/2002, para. 61. 155 Human Rights Committee Communication No. 80/1980, Vasilskis v. Uruguay, 31 March 1983, paras. 9.2, 9.3 and 11.

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that the assessment made by the Committee in coming to this position was based on the analysis as to whether, in that case, the accused had been provided with an adequate defence. The overall criteria in assessing the quality of the defence is one of adequacy of the defence in a specific case; whether a persons right to an adequate defence has been respected would have to be assessed on a case-by-case basis.

Human Rights Standards Articles 11 and 12 Universal Declaration of Human Rights Articles 14(3)(b), 14(3)(d) and 17 International Covenant on Civil and Political Rights Principles 18 and 23 of the Body of Principles Principles 3 and 6 Basic Principles on the Role of Lawyers Articles 34, 36 and 136 Constitution of RDTL Relevant Provisions of CPC Articles 60, 68, 126, 177, 240, 260 and 344

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7. THE RIGHT TO AN ADEQUATE TIME AND FACILITIES TO PREPARE ONES DEFENCE Access to time and facilities in order to prepare ones defence is an important element of the overall guarantee of a fair trial and a corollary of the principle of equality of arms.156 Article 14(3)(b) of the ICCPR provides that in the determination of any criminal charge, everyone shall be entitled to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing.157 This guarantee is not expressly included in the Constitution of Timor-Leste; article 34(3) provides in general for the right to defence. However, in view of the application of article 9 of the Constitution which incorporates international law into the national jurisdiction every accused before the Courts in Timor-Leste shall be afforded the time and facilities necessary to prepare his defence. Similar to the Constitution, the CPC does not explicitly mention the right to an adequate time to prepare for the defence; instead it provides for a general entitlement of presentation of evidence (article 60(h)). Whether the time to prepare a defence is considered adequate depends on the nature of the proceedings (for example whether they are preliminary proceedings, trial or appeal) and the factual circumstances of each case.158 Among the factors to be considered are included the complexity of a case, access to evidence by an accused and to his lawyer, and time limits prescribed by national law.159 It is the view of the Human Rights Committee that facilities in this context includes access to documents and other evidence which an accused requires to prepare his/her case, as well as the opportunity to engage and communicate with counsel.160 The right to adequate time and facilities to prepare the defence applies both to the accused and his/her lawyer at all stages of the proceedings: before the trial, during the trial as well as during any appeals. Since the preparation of the defence should start before the trial begins, this issue is dealt with in this Chapter. The issue of access and contact with a lawyer during detention is not discussed in this Guide since this area is regulated by legislation specifically applicable to the prison services. 7. 1 ACCESS TO INFORMATION As already stressed above, the right to adequate facilities to prepare a defence includes the right to have access to information. The possibility of a lawyer to provide a quality defence relates directly to the information which s/he will have access to in preparation for the trial. According to principle 21 of the Basic Principles on the Role of Lawyers, it is the duty of the competent authorities to ensure lawyers access to appropriate information, files
Human Rights Committee Communication No. 283/1988, Little v. Jamaica, 1 November 1991, paras. 8.3; Communication No 702/1996, McLawrence v. Jamaica, 18 July 1997, para. 5.10; and Communication No. 349/1989, C. Wright v. Jamaica, 27 July 1992, para. 8.4. 157 See also article 11(1) of UDHR. 158 Human Rights Committee Communication No. 283/1988, Little v. Jamaica, 1 November 1991, paras. 8.3 and 8.4. 159 Human Rights Committee General Comment No. 13, para. 9. 160 Ibid.
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and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients. 7.1.1 Information about the Charges The right of the accused to receive prompt notice of the charges against him/her is the first piece of information which is needed in order to prepare a defence. The right to receive information on the charges has already been dealt with to some extent in this Guide in relation to the provision of information of the charges at the time of an individuals detention. However, all persons charged with a criminal offence, whether or not held under detention, have the right to be promptly informed of any charges against them; a guarantee provided under article 14(3)(a) of the ICCPR. According to the Human Rights Committee the duty to inform the accused under article 14(3)(a) [of the ICCPR] is more precise than that for arrested persons under article 9(2) [of the ICCPR].161 (see Chapter III, 1.2. The right to be Promptly informed of Reasons for Arrest and Charges) The notification of the charges must be in detail and must include information about the nature and cause of the charges against the accused. The Human Rights Committee has stated that the information to be given to a person charged with a criminal offence must indicate both the law and the alleged facts on which the charge is based.162 In interpreting Article 14(3)(a) of the ICCPR, the Human Rights Committee has further explained that the information should be given as soon as the charge is first made by the competent authority. This same provision requires that information is provided in a language which the accused understands. Article 60(b) of the CPC states that an accused is entitled to receive information about the facts imputed to him when requested to make declarations. This provision specifically mentions only the provision of information about the facts. Information on the legal basis of the charge will eventually be made available to the accused when the indictment is prepared by the prosecution once the investigation phase has been concluded (article 237(1)) as well as when the trial hearing is scheduled (article 240(2)). According to article 236(3) an indictment should include an account of the facts which constitute the crime and an indication of the applicable substantive legal provisions. In case these elements are not properly included, the indictment is invalid (article 236(3)). In relation to trials conducted using the expedited procedure (articles 346 to 350 CPC), the indictment can be substituted by the written records on the notification of the crime (article 347(2)).163 The information which should be included in this
Human Rights Committee Communication No. 702/1996, McLawrence v. Jamaica, 29 September 1997, para. 5.9 Human Rights Committee General Comment 13, para. 8. 163 Article 347(2) refers to a document entitled auto de notcia; reference to a document with this title is not found in other provisions of the CPC. It appears that the intention of the legislator was to refer to the document provided under article 212 (auto de participao). This suggested position derives from the regulations found in other criminal procedure
161 162

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document is listed in article 212(1): (a) elements for the identification of the accused and the victim; (b) the facts constituting the offence; (c) the date, time, place and the circumstances surrounding the commission of the offence; (d) the elements of proof already identified; (e) in certain cases, information as to how the person writing the record has obtained notification of the crime; and (e) the date and the signature of the person writing the record. Article 212(1) does not require the inclusion of an indication of the applicable substantive legal provisions in the written records of the notification of the crime. 3.1.2 Information about the Prosecution Evidence With regard to access to documents by the accused and/or his/her legal counsel, the Human Committee has specified that article 14(3)(b) of the ICCPR imposes a requirement to provide the defence with access only to those materials which are relevant to the case164. This entitlement is not extended to require that the defence be given copies of the documents; it only prescribes that the defence needs to be provided with the means to enjoy access to the necessary information.165 There are three specific regulations in the CPC of Timor-Leste which relate directly to this guarantee. First, together with the indictment the prosecution should include a list of witnesses which it intends to call as well as other evidence to present during the trial (article 236(5)). The second provision in the CPC relates to access to the case file. According to article 77(1) of the CPC an accused can have free access to the case file and obtain copies of the documents included. Subsection 2 of this article provides that when the exercise of this right cannot be attended from a legal perspective there is the need to be a prior authorization from the judicial authority directing the relevant procedural phase (i.e. if during investigation authorization to be given by the public prosecutor, if during the trial phase by the Judge). The third provision is applicable specifically in relation to the collection of evidence through telephone tapping. According to article 178(4), an accused can have access to the recordings of intercepted conversation after the inquiry has been closed (see Chapter IV, 1.1 Telephone Tapping). 7.2 TIME TO PREPARE FOR THE DEFENCE As highlighted above, the identification as to what is an adequate time for the preparation of the defence needs to be assessed on a case-by-case basis. It is undeniable that during the investigation phase, the defence lawyer has sufficient time to start the preparation of the defence, including interviews with clients and prospective witnesses. However, since the defence will generally only have access to detailed information regarding the charge once formally notified of the indictment, time should also be provided for the preparation of the defence at this stage of the proceedings.

codes which served as model to the Timorese Code. See for example articles 226 and 370(3) of the Criminal Procedure Code of Macau and articles 243 and 389(3) of the Criminal Procedure Code of Portugal. 164 Human Rights Committee, Concluding Observations, Japan, ICCPR, A/54/40 vol. I (1999) 36 at para. 168. 165 Human Rights Committee Communication No. 158/1983, O. F. v. Norway, 26 October 1984, para. 5.5. 85

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When analyzing the Timorese CPC, it is possible to identify four specific points in the criminal proceedings which directly relate to the time to prepare a defence: 1) time between the indictment and the defence rebuttal (article 241); 2) time for the preparation of the defence by a substitute counsel (article 260(3)); 3) postponement of the hearing to provide further time where the indictment has been amendment (article 273, 274 and 275); and 4) time to file an appeal submission or to file an appeal reply (article 300 and 302(2)). Article 241 of the CPC provides that the accused has 15 days from the date of the notification of the scheduled trial to provide his/her rebuttal to the indictment. Together with a written reply, the defence includes the list of witnesses and other evidence to be presented on behalf of the accused during the trial. Whether fifteen days gives adequate time to prepare for the defence will depend on the circumstances of each case. Regard should be given to cases where a defence lawyer has only been nominated by the Court through the order scheduling the trial hearing (article 240(1)(a)). The complexity of the case should be taken into account mainly when relating to crimes included under the Special Regulation. Fifteen days is the time provided by law for an accused to file an appeal against a decision of a Judge (article 300); the same timeframe is also stipulated as the time available to reply to an appeal made by the prosecutor (article 302(2)). No specific timeframe is provided for the preparation of a defence in cases where the defence counsel has been substituted or when further time is needed in view of amendments to the indictment. In relation to the former, the wording and the circumstances surrounding the relevant provision (article 260(3)) seems to imply that a period of some few hours is provided for the preparation of the defence. With respect to the time necessary to prepare a defence where the indictment is amended (articles 273 to 275), no guidance is given as to any possibly extension of the time for further preparation of the defence. The time given until the next scheduled hearing invariably depends on the specific request of the defence and the circumstances of the case. The issue of adequate time for the preparation of the defence also needs to be considered in relation to cases where the expedited procedure is used (articles 346 to 350) (see Chapter I, 2. Procedures under the Criminal Procedure Code of TimorLeste). Article 346(2) provides that in expedited procedures the trial hearing should start within 72 hours from the arrest of the accused. Subsection 3 of this provision, however, recognizes that there will be circumstances in which it will not be possible to respect this timeframe. In cases where no obstacles are present for holding the trial hearing within the 72 hours, seventy-two hours would represent the maximum available time for an accused and his/her counsel to prepare the defence. This time would probably be considerably shorter in cases where a lawyer is only appointed once the accused is presented in Court. 7.2.1 Request for Adjournment or Postponement of Hearing The Human Rights Committee has voiced that in case an accused feels that s/he has not had enough time to prepare for his/her defence, s/he has to request to the Court specifically for additional time; if the request is denied without justification, article 14(3)(b) of the ICCPR might be violated. In case the accused does not complain about the insufficiency of time to the competent Court, the Human Rights Committee is of the opinion that the right under article 14(3)(b) of the ICCPR has not been
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violated.166 This Committee has further considered that an accused may be deemed to have waived his/her right to adequate time to prepare the defence if s/he does not ask for an adjournment when, for example, a previously undisclosed witness statement is introduced at trial.167 It is of course important that the laws of a country allow for the defence to request the adjournment or postponing of the hearing in order to have further time to prepare for the defence when that is required under the prevailing circumstances. It is not being implied here that the Court should always accept this type of request; it is within the discretion of a Judge to accept or deny such a request. The CPC expresses in clear terms the possibility of an adjournment or postponement of a hearing in two circumstances only: where there has been an amendment to the indictment (articles 273 to 275) or when the defence counsel is substituted on the date of the scheduled hearing due to the absence of the originally appointed counsel (article 260(3)). The grounds for the postponement of the hearing are straightforward as laid down in article 251. There are three grounds for a Judge to postpone a hearing: inability to establish the Court (due to absence of a Judge, for example), or failure to comply with the rules under article 244 (rogatory letter168) or absence of the accused, witness or victim under certain specific circumstances (articles 256 and 261). In general hearings have a continuous character (article 250(1)). Adjournments can take place under three circumstances (article 250(4)): (a) failure to appear or inability to maintain the presence of an essential person throughout the hearing ; (b) need to present supervening evidence; and (c) as required by any prejudicial or incidental matter, the settlement of which is essential for a satisfactory adjudication of the case and that renders the continuation of the hearing highly inconvenient before that matter is settled. A request by the defence for an adjournment because of the need to further prepare the defence could fall under the third category identified above, given that in some circumstances, the continuation of a hearing when the defence is clearly not prepared to proceed can be of great inconvenience to the overall fairness of the proceeding. All rules identified above are also applicable in relation to an expedited trial, with the sole difference that in case a defences request for an adjournment is not granted by the Judge, the accused is not entitled to challenge this decision on appeal (article 350). Depending on the circumstances of the case, the additional time requested by the defence (and granted by the Judge) will not be considered in the assessment as to whether the trial has been conducted within a reasonable time (see Chapter V, 5. The Right to be Tried Without undue Delay).
166 Human Rights Committee Communication No. 352/1989, Douglas, Gentles and Kerr v. Jamaica, 19 October 1993; Communication No. 226/1987 and 256/1987, Sawyers and McLean v. Jamaica, 11 April 1991; and Communication No. 702/1996, McLawrence v. Jamaica, 18 July 1997. 167 See Human Rights Committee Communication No. 607/1994, Adams v. Jamaica, 30 October 1996. 168 Rogatory letters in practice means the written statement of a witness which was taken down by another Court not the one having the jurisdiction to hear the case because the witness resides outside the jurisdiction of the Court hearing the case and s/he has serious difficulties to come before the Court.

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Human Rights Standards Article 11 Universal Declaration of Human Rights Articles 9(2), 14(3)(a) and 14(3)(b) International Covenant on Civil and Political Rights Principles 21 Basic Principle on the Role of Lawyers Articles 34 Constitution of RDTL Relevant Provisions of CPC Articles 60, 77, 91, 92, 178, 236, 237, 240, 241, 250, 251, 256, 260, 261, 273, 274, 275, 300, 302, 346, 347, 348, 349 and 350

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8. THE RIGHT TO BE PRESENT AT ONES TRIAL For the right of defence to be meaningful, the accused must also enjoy the right to be present at trial and to defend him or herself in person. This guarantee is found in article 14(3)(d) of the ICCPR. A narrow interpretation of this guarantee would entail the inadmissibility of proceedings without the presence of the accused trials in absentia. However, the Human Rights Committee holds that, in exceptional circumstances, it may be permissible to try a person in absentia, when it is in the interest of the proper administration of justice.169 The effective exercise of the rights under article 14 of the ICCPR presupposes that necessary steps should be taken to inform the accused beforehand about the proceedings against him. Therefore, the right to be present at trial imposes duties on the authorities to notify the accused (and defence counsel) of the date and location of the proceedings within a sufficient timeframe, to request the presence of the accused and not to improperly exclude the accused from the trial170. It is further incumbent on the court to verify that the accused has been informed of the pending case before proceeding to hold the trial in her absence.171 The Constitution of Timor-Leste includes the right of hearing is included in article 34(3); presupposing the presence of the accused during the hearings for its effective application. At the same time it is acknowledged that there must be certain limits to the efforts which can be duly expected of the responsible authorities for establishing contact with the accused and guaranteeing the accuseds presence. 8.1 GUARANTEEING THE PRESENCE OF THE ACCUSED The exceptional nature of holding a hearing in absentia, as delineated in the international jurisprudence, finds resonance in the CPC of Timor-Leste which lays down that the accuseds presence at the hearings compulsory, except as otherwise stated in the law (article 253(1)). The CPC lays down specific rules for the notification of an accused: requirement of hand delivery to the accused of notifications on the schedule of the trial hearing, including notification to those detained (article 92(2) and (5) respectively), invalidity of notice if fails to include essential information, such as date and place of hearing (article 93(a)), and the use of public notice within established procedures when it is impossible to locate the accused (article 257). According to the procedure established by the CPC the authorities not only need to notify the accused, but need to provide a copy of the notification in hands to the accused, and when unable to find the accused, they need to take steps to establish his/her whereabouts172, and if still unsuccessful, to provide notification through public notice.

Human Rights Committee, General Comment No. 13, para. 11. Human Rights Committee Communication No. 16/1977, Mbenge v. Zaire, 5 March 1983, para. 78. 171 Human Rights Committee Communication No. 699/1996, A. Maleki v. Italy, 15 July 1999, paras. 9.2-9.3. 172 A Judge can request police authorities to undertake investigations to identify the whereabouts of an accused, article 259.
169 170

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Article 256(1) provides a mandatory postponement of the hearing in case an accused fails to appear. The postponement as per this provision is to take place before evidence is presented. Thus, the Court may hold the hearing in order to deal with preliminary and incidental matters of procedure, including the scheduling of a new date for the hearing, but the provision of evidence may only take place in the presence of the accused. According to the CPC, the absence of an accused in one of the scheduled hearings have two different consequences, depending on whether the accused has provided a justification for his/her absence within the prescribed limits. The failure of the accused in providing a justification for his/her absence within 5 days of the hearing s/he did not attend will result in financial liability and the issuing of an arrest warrant against him/her (article 256(2)).173 Having the accused under detention, the Court will have the guarantee of his/her presence on the date of the re-scheduled hearing. In case the accused is arrested as a result of the application of article 256(2), the Judge still has to determine if there is a need to order preventive detention in terms of the grounds provided by articles 183 and 194. (see Chapter III,1. Arrest) Where the accused has provided a justification for his/her absence, s/he will be notified of the re-scheduled date. Failure to appear in the re-scheduled hearing will result in the trial being held without her presence (article 256(3)). In relation to the rule established in article 256(3) of the CPC, two issues are worth of noting. Firstly, no clarification is provided to the circumstances which can justify absence of the accused. It would have been important to identify certain circumstances which could undoubtedly justify absence so as to guarantee that the accused would not be held liable to pay fine or to be arrested due to arbitrary application of the understanding of justification in this case. Secondly, the application of article 256(3) is of a mandatory nature, providing no exceptions. According to this provision, accused are given one chance only. In case the accused is not present on the re-scheduled date, the Court is not required to assess the reason for the absence, but to carry out the hearings irrespective of the presence of the accused. The rule established by article 256(3) of the Timorese CPC is also laid down in the criminal procedure code of Guinea Bissau.174 The criminal procedure codes currently applicable in other CPLP members, including Mozambique, Cape Verde, Portugal and Macau, do not include this rule. The Constitutional Court of Portugal has already taken a decision in relation to a rule similar to the one found in article 256(3) which was present in the 1929 Criminal Procedure Code. According to the Court, the automatic holding of a hearing without the presence of the accused who missed the previous hearing the one chance rule was unconstitutional in that it excessively limited the right to defence and to be present at trial. The Constitutional Court was of the opinion that the Courts needed
One of the objectives for a detention as per article 217(1)(b) is the need to guarantee the presence of a person for the criminal proceedings. 174 Article 232(3) Decree Law 4/93, 13 October 2003.
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to analyze even if in case of a second absence of the accused whether there were justifying grounds for the absence, for example health condition. The application of a blanket rule which did neither consider justification grounds nor the fact that the accused had expressed willingness to be present during the trial was found unconstitutional.175 8.2 TRIAL IN ABSENTIA The impossibility of holding a trial without the presence of the accused may paralyze the conduct of criminal proceedings, in that it may lead, for example, to the loss of the evidence, expiry of the time-limit for prosecution or a miscarriage of justice. However, at the same time, the importance of the presence of the accused during the hearings demands that the Court be satisfied that there is the need to conduct the proceedings without the presence of the accused. As per the Timorese CPC, trials can take place in absentia when a notified accused fails to appear for a second time (article 256(3)) or when an accused chooses not to attend the trial because of grounds such as sickness and residence outside TimorLeste (article 258). When in exceptional cases trials in absentia are held, the Human Rights Committee is of the opinion that the strict observance of the rights of the defence is all the more necessary.176 These rights include the right to counsel, even if the accused has chosen not to attend the trial. Article 256(3) of the CPC lays down that the accused who is not present during a hearing should be represented by a lawyer. This requirement together with article 68 should be interpreted as requiring representation for an accused not present in every hearing. This position accords with the standing found at the international human rights level. 8.3 TEMPORARY ABSENCE OF ACCUSED DURING HEARINGS The general rule is that the accused should be present and has the right to be present during the entirety of the hearings. The right of an accused to be present at trial may be temporarily restricted if the accused disrupts the court proceedings to such extent that the court deems it impractical for the trial to continue in his or her presence. Article 253 of the CPC establishes two grounds on which the accused can be ordered to leave the hearing: repeated breaches of disciplinary rules (article 253(3)) and her presence can contribute to inhibit or intimidate witnesses (article 253(4)). The security of witnesses as well as victims is a valid concern - for the overall administration of justice and can justify the temporarily exclusion of an accused from his/her trial. The application of article 253(4) would result in limiting the right of the accused to be present at the hearing as well as to conduct cross-examination of evidence presented against him/her (see Chapter V, 10. The Right to Call, Examine, or have Examined, Witnesses). With a conflict between recognized fundamental guarantees of the accused and the witnesses it is necessary to assess the application of the principle of limitation of rights as per article 24 of the

175 176

See for example, Constitutional Court of Portugal, Case No. 339/97, 23 April 1997 and 212/93, 16 March 2003. Human Rights Committee General Comment 13, para.11. 91

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Constitution, which imposes the criteria of necessity and proportionality for justifiably limiting a human right. The grounds provided by article 253(4) are contributing to inhibit or intimidate witnesses. This term is broad in its scope and could be interpreted in variety of ways.177 It is also important to guarantee that the Judges decision to request the temporary absence of the accused justified by either disciplinary concerns or concern for witnesses, is one which lasts only as long as necessary in the circumstances of the case. In order to minimize the damage which can be caused by the absence of an accused on the right to defence, the CPC of Portugal, Macau and Cape Verde impose on the Judge of the case a duty to explain to the accused a summary of what happened in the hearing during his/her absence.178 Irrespective of the absence of a provision of a similar nature in the Timorese CPC it is expected that the Judges, in accordance with their power to direct the procedure and impose discipline during the hearings (article 245) will follow this practice when article 253 is applied. At all times, a balance needs to be struck between the interests of the accused and those of the victims and witnesses. The establishment of alternative mechanisms, such as a protection service to witnesses, could be of assistance in limiting the application of this provision, guarantee the right to security of witnesses and the safeguarding of important guarantees of a fair trial.

Human Rights Standards Article 14(3)(d) International Covenant on Civil and Political Rights Articles 34 Constitution of RDTL Relevant Provisions of CPC Articles 91, 92, 93, 94, 253, 256, 257, 259

By comparison, the CPC of Macau (article 333) establishes more restrictive grounds: inhibit the witness to tell the truth or serious threat to the physical integrity. 178 See respectively articles 332(7), 364(3) and 313(5).
177

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9. THE RIGHT NOT TO BE COMPELLED TO TESTIFY AGAINST ONESELF OR TO CONFESS GUILT The right not to be compelled to testify against oneself should be respected throughout the judicial proceedings, and is not limited to the investigation or pretrial stage of the proceedings (see Chapter IV, 2. Guarantees during Interrogation). Article 14(3)(g) of the ICCPR provides that in the determination of any criminal charge against him, every person has the right not to be compelled to testify against himself or to confess guilt. This guarantee is directly related to the right to be presumed innocent (see Chapter V, 3. The Right to be Presumed Innocent). As the burden of proof is on the prosecution, an accused should not be forced to assist the prosecution to prove its case against him. Duties are imposed on Judges and prosecutors to be attentive to any sign of unlawful compulsion related to confessions. Prosecutors should have the ethical principle of not invoking any confessions obtained through any coercive means against an accused (guideline 16 of the Guidelines on the Role of Prosecutors). The CPC of Timor-Leste has been successful in including constitutional and international guarantees related to the right not to be compelled to testify in the criminal proceedings through the following provisions: Article 60(c): right of an accused to decide freely to make any statements Article 62(4) and 268(7): the prohibition of adverse inference from the exercise of the right to remain silent Article 62(2): prohibition of using methods or techniques capable of limiting the free will of the accused Article 110: absolute prohibition to admit evidence obtained through torture, duress or offence against the physical or moral integrity of a person Article 111: relative prohibition of admission of evidence obtained through unlawful interference with the private life, home, correspondence or other means of communication Article 268(1): obligation imposed on the Court to caution the accused of his right to remain silent during the trial Article 268(4): duty of the Court to verify that any confession by the accused was made freely Article 268(7): right of the accused to legitimately refuse to answer any questions made to him 9.1 RIGHT TO REMAIN SILENT As previously highlighted under Chapter IV a persons right not to be compelled to testify against him or to confess guilt entails, in practice, a right to remain silent. The Human Rights Committee has recognized the need for the State to provide in its national legislation a prohibition of adverse inference with the choice of the accused to remain silent.179

179 Human Rights Committee, Concluding Observations, United Kingdom of Great Britain and Northern Ireland, ICCPR, A/57/40 vol. I (2002) 36 at para. 75(17).

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Articles 60(c), 62(4), 268(1) as well as 268(7) of the CPC have the potential of guaranteeing that an accused has his right to remain silent respected during the proceedings before the Courts. The obligation of the accused to inform the Court about his criminal history must, as interpreted by the Portuguese Constitutional Court, be seen in light of the right to remain silent (see Chapter V, 3. The Right to be Presumed Innocent). 9.2 PROHIBITION ON THE USE OF EVIDENCE OBTAINED THROUGH UNLAWFUL MEANS OR TREATMENT Evidence obtained by means of torture, cruel, inhuman or degrading treatment, or other forms of coercion must not be accepted by the Court as evidence; except in proceedings brought against the alleged perpetrators of torture, ill-treatment or coercion (article 15 CAT). In numerous instances the Human Rights Committee and the Committee against Torture have expressed the need to have this prohibition clearly included in national legislation.180 The Committee against Torture has expressed that the acceptance as evidence of confessions or statements made under torture has the potential of rendering efforts to put an end to the practice of torture ineffective.181 As it relates to the extraction of confessions using coercive measures, the position of the Human Rights Committee is that it is a duty of the Court to satisfy itself that a confession made by an accused was obtained through his free will. The burden to show that the confession was extracted using improper means shall not be on the accused; it is the prosecution who should show that a confession or admission made by an accused was freely obtained.182 The prohibition of admitting evidence obtained through torture is one of the guarantees enshrined in the Constitution of Timor-Leste. Article 34(4) provides: 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. As already mentioned in this section, article 110(1) of the CPC provides for an absolute prohibition to admit evidence obtained through torture, duress or through acts offensive of the physical or moral integrity of a person. The intended meaning of offensive to physical or moral integrity of a person is clarified in subsection 2 of this same provision, which includes the use of force outside the legal parameters (article 110(2)(c)) and promise of an advantage which is not provided by law (article 110(2)(e)). Obtaining evidence through wrongful interference with private life, the home, correspondence or other forms of communication is also a ground for the exclusion
See for example Committee against Torture, Conclusions and Recommendations, Brazil, CAT, A/56/44 (2001) 49, paras. 119 and 120; Sweden, CAT, A/57/44 (2002) 51 at paras. 107 and 108; Iceland, CAT, A/58/44 (2003) 43 at paras. 107 and 109; and Belgium, CAT, A/58/44 (2003) 49 at paras. 129 and 131. 181 Committee against Torture Conclusions and Recommendations, Mexico, CAT, A/52/44 (1997) 26 at para. 163. 182 Human Rights Committee, Concluding Observations, Mexico, ICCPR, A/54/40 vol. I (1999) 61 at para. 319 and Philippines, ICCPR, A/59/40 vol. I (2003) 15 at para. 63(12).
180

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of such evidence (article111). However, the prohibition is a qualified one in that it allows for the possibility of obtaining prior consent of the person concerned as a basis for admitting the evidence despite the fact that it was obtained through interference with a persons home, for example. To prevent torture, authorities are required to undertake a prompt and impartial examination into any allegation of torture. According to articles 13 and 16 of the CAT, all allegations of use of torture or other cruel, inhuman or degrading treatment to obtain a confession or declaration must be promptly and impartially examined by the competent authorities. The Human Rights Committee has expressed its view that in case an accused alleges, during the course of proceedings, that he has been compelled to make a statement or to confess guilt, the Judge should have the authority to consider the veracity of such an allegation at any stage of the proceeding.183 The CPC does not expressly state that the Judge or the public prosecutor needs to assess or investigate allegations of torture which come to their knowledge during criminal proceedings. However, according to article 9 of the CPC all incidental matters which are relevant to the decision before the Court should be dealt with during the criminal proceedings; an allegation that evidence was obtained through torture is without a question an issue relevant to the decision. Article 211 of the CPC provides that all police agents, public servant staff as well as other public authorities are under a duty to record any offence which comes to their knowledge; the same obligation rests with a prosecutor. Regardless of there being no specific provision on this matter, the application of articles 9 and 211 might provide the necessary legal basis for taking the first steps in dealing promptly with an allegation of torture which was brought to the Courts attention during the proceedings.

Human Rights Standards Article 5 Universal Declaration of Human Rights Article 14(3)(g) International Covenant on Civil and Political Rights Articles 13, 15 and 16 Convention against Torture Guideline 16 Guidelines on the Role of Prosecutors Article 34 Constitution RDTL Relevant Provision of CPC Articles 9, 60, 62, 63, 110, 111, 211, 226, 268,

183

Human Rights Committee, General Comment No. 13, para.15. 95

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10. THE RIGHT TO CALL, EXAMINE, OR HAVE EXAMINED, WITNESSES Article 14(3)(e) of the ICCPR provides that as part of ones right to defence, an accused is entitled to examine, or have examined, the witnesses against her and to guarantee the attendance during the hearing and examination of witnesses on her behalf under the same conditions as witnesses against her. This right is designed to guarantee to the accused the same legal powers of compelling the attendance of witnesses and of examining or cross examining any witnesses as are available to the prosecution.184 The Timorese Constitution provides in broad terms that every accused has the right to a defence in criminal proceedings (article 34(3)); no specific mention is made of the right to call and examine witnesses. As a consequence of the direct application of international human rights law by virtue of article 9 of the Constitution, article 34(3) of the Constitution needs to be read in conjunction with the provision of international human rights law on the right to defence. Thus, the right to call and examine witnesses is considered an intrinsic component of the right to defence in TimorLeste. The right to call and examine witness has a direct connection with the entitlement to have adequate time to prepare a defence; Courts must afford to the accused and her lawyer adequate time to prepare for the questioning of witnesses who will be brought by the prosecution. Access to information about the witness(es) which the prosecution intends to bring to Court is also essential to effectively guarantee this right. (see Chapter V,7. The Right to an Adequate Time and Facilities to Prepare Ones Defence) A direct relationship can be identified between the right of an accused to examine witnesses of the prosecution and the requirement of an adversarial procedure. The Timorese Criminal Procedure Code expressly recognizes the adversarial nature of criminal proceedings in article 246 (see Chapter V, 1.1 The Right to Equality of Arms and Adversarial Proceedings). 1. The Right to a Fair Hearing Article 60(h) of the CPC states that an accused is entitled to present evidence as well as to request that actions deemed necessary to assist developing his/her defence be taken, thereby guaranteeing that national jurisdiction incorporates guarantees in article 14(3)(e) of the ICCPR. 10.1 RIGHT TO CALL WITNESS According to article 241 of the CPC, the accused can provide the Court with a list of the witnesses which she intends to call in support of her defence. No limitations are imposed on the number of witnesses which an accused can call to testify during a trial taking the form of an ordinary procedure; however, in relation to expedited proceedings, an accused is only allowed to call a maximum of three witnesses (article 348(3)). The right to call witnesses however does not necessarily mean that an unlimited number of witnesses can be called. In order to guarantee a proper administration of justice, the Court shall limit to accept only those witnesses which are likely to be
184

Human Rights Committee General Comment No. 13, para. 12. 96

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relevant to the case.185 In criminal proceedings before the Timorese Courts, relevance is the general criteria for determining what evidence can be presented during trial (article 109). This means that a Judge, within her powers to direct the trial (article 245), can decide not to accept witnesses for the defence if she considers that they are of no relevance to the case. Where a Judge decides not to accept witnesses proposed by the defence, the accused can, if in disagreement with the decision, submit an appeal. (see Chapter V, 13. The Right of Appeal) It is important to consider the issue of access to interpretation facilities for witnesses testifying in Court. If the accused or the defence witnesses have difficulty in understanding or in expressing themselves in the court language, the services of an interpreter should be made available.186 (see Chapter V, 11. The Right to Free Assistance of an Interpreter) In order to give effect to the right of an accused to call witnesses in order to provide evidence during the trial, steps need to be taken to secure the presence of witnesses before the Court.187 A request for the presence of any person as a witness in criminal proceedings is made through a formal notification issued by the competent Court (articles 91 and 92). Any person formally notified to serve as a witness in a proceeding is under the obligation to come to Court on the time and date indicated in the notification (article 123). Failure to appear can result in the imposition of a fine or detention (articles 90 and 217(2)). The absence of a witness either for the defence or the prosecution does not necessarily require a postponement of the hearing. A hearing may be postponed only when the presence of the witness is considered by the Court essential for the discovery of the truth (article 261(1)). The Human Rights Committee considered that article 14(3)(e) of the ICCPR was violated in case in which a hearing was not postponed when a witness for the defence who was willing to testify but was unable to be present in Court because she did not have a means of transport. The Committee in this case considered that the witnesss failure to appear was attributable to the authorities, who could have adjourned the proceedings or provided her with transportation.188 The Human Rights Committee also takes the position that it is within the duties of the Courts to control the atmosphere in a courtroom and prevent it from becoming hostile or to avert pressure which could be created by the public in the court room and which could negatively affect the defence counsels cross-examination of witnesses and/or presentation of her defence.189 10.1.1 Expert Witness The principle of equality of arms requires defence is allowed to call expert witnesses to the criminal proceedings on the same footing as the prosecution.

See Human Rights Committee Communication No. 237/1987, D. Gordon v. Jamaica, 5 November 1992, para. 6.3. Human Rights Committee Communication No. 219/1986, Dominique Guesdon v. France, 25 July 1990. 187 Human Rights Committee Communication 702/1996, McLawrence v. Jamaica, 18 July 1997, para. 5.8 188 Human Rights Committee Communication 353/1988, Grant v. Jamaica, 31 March 1994. 189 Human Rights Committee Communication 770/1997, Gridin v. Russian Federation, 20 July 2000, para. 8.2.
185 186

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The right of an accused to call witnesses for the defence extends to include the right to call expert witness in certain circumstances. The Human Rights Committee pronounced in 1996 that where the request of an accused for an expert witness was unreasonably refused by the Court, when that expert testimony would be of crucial importance for the case, the right of an accused to call witnesses as per article 14(3)(e) of the ICCPR was violated.190 The use of expert examination or expert witness is regulated by articles 149 to 162 of the CPC of Timor-Leste. The right of an accused to request expert examination is not provided in clear and direct terms in the Timorese CPC. Despite this omission, through the interpretation of articles 151(2)(b) and 155(2) together with the general entitlement of an accused as per article 60(h), an accused is entitled to request the Court to make use of expert examination. During the investigation phase, the accused has to make a request for expert examination to the public prosecution (article 150(2)). The party requesting expert examination has the possibility, according to article 155(2), to formulate questions to be considered by the expert carrying out the examination. Article 266(1) deals with the result of the expert examination, for example a written report. As a general rule, the result should be presented during a hearing so that it can be examined by all participants. 10.2 EXAMINING WITNESS AND EVIDENCE As highlighted above, it is necessary to guarantee the adversarial nature of the proceeding in order to provide an effective opportunity for an accused to challenge evidence presented against him/her. The right to examine or have witnesses examined against the accused means in practice that all evidence must normally be produced in the presence of the accused at a public hearing, so that the evidence and the reliability and credibility of the witness can be challenged. While exceptions are allowed to this rule, these must not infringe on the overall right of defence. Article 266(1) of the CPC sets the general framework for the right of an accused to challenge evidence against her. According to this provision evidence should, as a general rule, be produced or examined during the hearings; evidence not produced in an adversarial hearing is generally not admissible evidence for the trial. Article 266 allows for exceptions. This article stipulates a list of evidence which can be admitted by the Court without needing to be presented during the hearings, including documents included in the case file during the investigation phase. The direct consequence of the application of article 266(2) is that some evidence can be admitted irrespective of the fact that the accused has not had the chance to challenge it. This provision expressly excludes the admission of statements of the accused, witnesses and victims.191
190 191

Human Rights Committee Communication No. 480/1991, J. L. Garca Fuenzalida v. Ecuador, 12 July 1996, para. 9.5. Regard should be given to the fact that article 266(2)(b) appears to have an orthographical mistake by missing the word no. This provision should be read as to exclude the declarations from the accused, victim and witness which could have 98

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The Human Rights Committee is of the opinion that an accused has waived the right to examine a witness if no objections are raised during the trial or appeals against the introduction of evidence, which the defence has not had an opportunity to challenge,. It stated that Article 14 (3)(e) of the ICCPR protects the equality of arms between the prosecution and the defence in the examination of witnesses, but does not prevent the defence from waiving or not exercising its entitlement to crossexamine a prosecution witness during the trial hearing..192 10.3 DETENTION OF WITNESSES For the Human Rights Committee, the detention of a witness is believed to be a serious issue, as it considers that the detention of witnesses in view of obtaining their testimony is an exceptional measure, which must be regulated by strict criteria in law and in practice .193 According to article 217(2) of the Timorese CPC, a Judge may use an order to detain any procedural participant as a means of ensuring the immediate presence of that person before the procedural act from which she has been absent without justification. Legal practitioners, Judges, public prosecutors or public defenders can however never be detained for this reason. 10.4 LIMITATIONS ON THE EXAMINATION OF PROSECUTION WITNESSES Under international human rights law, the right of the accused to examine or have witnesses examined against him/her may be limited on the basis of the conduct of the accused (for example, if the accused absconds), or if the witness becomes unavailable (having moved country or moved residence leaving no forwarding address), or when the witness reasonably fears reprisal. In relation to the issue of witnesses becoming unavailable, the Timorese CPC provides significant safeguards. In an attempt to deal with a situation in which a witness might become unavailable, article 230 establishes a procedure for taking statements of witnesses which might be at risk of becoming unavailable when the trial takes place, for example if the person will leave the country. The procedure instituted by this provision is of an adversarial nature, where the accused (and her defence lawyer) can be present during the proceedings and pose questions to the witness whose statement is being taken. According to article 226 this proceeding has to be conducted by a Judge. This is an important safeguard since it has the potential of minimizing the impact that the absence of prosecution witness during a hearing could have on the right of defence. If the person who had previously provided a statement through the procedure established by article 230 is available to take part in the trial hearing, the statement would not be used as evidence but could still be used as an instrument to refresh the memory of the witness as regulated by article 85(2). The rights of victims and other witnesses to be protected from reprisals and from unnecessary anguish have to be balanced against the right of the accused to a fair trial. In balancing these rights, measures taken by courts include providing victims and witnesses with information and assistance throughout the proceedings, closing all or part of the proceedings to the public in the interest of justice and allowing the
been taken during the investigation phase. The non inclusion of the word no would in fact render the subsection (d) irrelevant. 192 Human Rights Committee Communication 375/1989, Compass v. Jamaica, 19 October 1993. 193 Human Rights Committee Communication No. 307/1988, J. Campbell v. Jamaica, 24 March 1993, para. 2.3. 99

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presentation of evidence by electronic or other special means. (see Chapter VI, 2.4 Victims Right to Protection of their Private Life and Safety) Despite the presence of the counsel for the defence, an accused is, to certain extent limited, from exercising his/her right to examine evidence for the prosecution where s/he is temporarily absent from a hearing. This situation is regulated by article 253 of the CPC which allows the Judge to order the accused to leave a hearing if her presence can contribute to inhibit or intimidate witnesses (article 253(4)) (see Chapter V, 8. The Right to be Present at Ones Trial).

Human Rights Standards Articles 14(1) and 14(3)(e) International Covenant on Civil and Political Rights Article 34 Constitution of RDTL Relevant Provisions of CPC Articles 60, 85, 90, 91, 92, 109, 123, 149, 151, 155, 159, 160, 161, 162, 217, 226, 241, 245, 253, 261, 266 and 348

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11. THE RIGHT TO FREE ASSISTANCE OF AN INTERPRETER Everyone charged with a criminal offence has the right to the assistance of an interpreter, free of charge, if they do not understand or speak the language used in court (article 14(3)(f) ICCPR). If an accused has difficulty speaking, understanding or reading the language used by the courts, the right to interpretation and translation is crucial to ensure the fairness of the proceedings. Without such assistance an accused may not be able to understand and participate fully and effectively in the preparation of his defence and at trial. The possibility of an accused (or witness) being questioned during trial about the contents of a document makes the right to translation a necessary prerequisite of the right to a fair trial. The Human Rights Committee believes that it is of great importance to guarantee that the obligation established in article 14(3)(f) of the ICCPR to provide an interpreter for everyone charged with a criminal offence if he cannot understand or speak the language used in court be clearly reflected in the criminal legislation of the States.194 The Human Rights Committee has stated that this right is of basic importance in cases in which ignorance of the language used by a court or difficulty in understanding may constitute a major obstacle to the right of defence.195 The right to an interpreter applies to all stages of criminal proceedings, including during police questioning and preliminary examinations or inquiries. The persons entitled to this right are only those who neither speak nor understand the language used by the Court. However, if the accused is otherwise capable of expressing himself adequately in the official language of the court, but prefers to speak another language, there is no obligation on the authorities to provide the accused with the free assistance of an interpreter.196 For this right to be exercised meaningfully, the interpretation must be accurate and of high quality. As it relates to challenging the incompetence of an interpreter, the Human Rights Committee has placed on the accused the duty to call attention to the limitations on the quality of the interpretation during the trial.197 In view of the Committee, in an instance of poor quality of interpretation, waiting for the conclusion of the trial and then file an appeal has been seen to be an improper position since the accused had the chance to request the Court to remedy the situation.

Human Rights Committee Concluding Observations Switzerland, ICCPR, A/52/40 vol. I (1997) 19 at para. 101 Human Rights Committee General Comment No. 13, para. 13. 196 Human Rights Committee Communication No. 219/1986, Guesdon v. France, 25 July 1990, para. 10.2-10.4 and 11; and Communication No. 623,624,626 and 627, Domukovsky, Tsiklauri, Gelbakhiani and Dokvadze v. Georgia, 6 April 1998, para.18.7. 197 Human Rights Committee Communication No. 493/1992, Griffin v. Spain, 4 April 1995, paras. 9.2, 9.5 and 9.7.
194 195

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There are no clear cut obligations on the State to do written translations. Resource limitations can mean that oral translations of documents e.g. a written statement are sufficient to guarantee this right in certain circumstances.198 The Human Rights Committee had previously recommended that when the majority of the population speaks one of the official languages used in a activity, the State should take serious efforts to guarantee, as soon as possible, the use of the language spoken by the majority in the courts at all levels and particularly in regard to court documents and decisions.199 In the CPC of Timor-Leste, the issue of interpretation is dealt with in different areas: impartiality of an interpreter (article 46); compulsory interpretation during first interrogation accused (article 63(3)); obligation to use interpreter in declarations (article 83); compulsory need of interpreter to translate documents that are not written in the official language (article 83(2)(a)); compulsory use of interpreter when certain hearing and speaking impaired (article 83(2)(b)); and use of interpreter in proceedings related to execution of criminal sentences of a foreign country in Timor-Leste (article 354(1)(d)). Article 60 lists the main rights of an accused. However, the right to have assistance of an interpreter free of charge when the accused does not understand the language used in the proceeding has not been included in this article. An accused has the right to be assisted by an interpreter during his first interrogation when he does not know or is unable to express him/herself adequately as per article 63. Article 83 is the main provision applicable during the trial hearings, since article 63 limits the right to interpretation only to the first interrogation of an accused under detention. When interpreting article 83, it appears to provide certain conditions for the use of interpreter: when the person does not know or is not fluent enough in the language used and when the person has to provide a statement or receive a statement. This article therefore does not extend only to the right of the accused but also seems to make the use of an interpreter compulsory to use an interpreter when the Judge has language limitations in relation to the language used by, for example, a witness. As the right to defence is intrinsically related to the right to be able to understand the information in court, it is of extreme importance that in practice the Courts ensure that an accused who cannot understand the language used in court has the right to be assisted by an interpreter during the entire trial process and not only when the accused is to make declarations him/herself. It is important that the interpretation of article 83 is one which affords better protection to the accuseds fundamental guarantees, and therefore is in compliance with international standards.

198 199

Human Rights Committee Communication No. 451/1991, Harward v. Norway, 15 July 1994. Human Rights Concluding Observation, Portugal (Macau), CCPR/C/79/Add.77 (5 May 1997), paras. 11 and 17. 102

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Even though the CPC is unclear as to whether an interpreter is to be provided by request of an accused or on the Courts initiative, the compulsory nature of the use of interpreters as per article 60 and 83 means that there is a duty on the Judge to enquire whether the accused is in need of interpretation or not. In case the Court fails to fulfill this obligation, the relevant act can be declared invalid if the lack of interpreter is raised by the person concerned before the act has been concluded (article 104(1)(c) together with 105). No provision of free assistance of an interpreter can be found in the CPC.200 Nevertheless the application of the ICCPR as per article 9 of the Constitution of Timor-Leste imposes a prohibition to charge the accused for the fees of a translator or interpreter when such assistance is compulsory. Therefore, even if the accused is found to be responsible to pay the costs partially or wholly of the proceedings as regulated by article 358, the costs of the use of the services of an interpreter cannot be included. As highlighted above, the accuracy of the translation is of great importance for the meaningful implementation of this aspect of a fair trial. The Timorese CPC rightly provides for the chance of the accused to challenge the impartiality of the interpreter (article 46). Further, another measure to guarantee the quality of the interpretation is the provision of a criminal offence for malicious wrong translation under the Draft Criminal Code (article 267(1)).

Human Rights Standards Articles 14(3)(f) International Covenant on Civil and Political Rights Relevant Provisions of CPC Articles 46, 60, 63, 83, 104, 105 and 354

200

See for example by comparison article article 118(4) of the CPC of Cabo Verde. 103

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12. THE RIGHT TO A REASONED JUDGEMENT Although not expressly mentioned in the four main human rights treaties, the right to a reasoned judgement is inherent in the provisions regarding a fair trial, including the right to a public judgement (see Chapter V, 4.2 The Right to a Public Judgement). The Human Rights Committee has examined numerous complaints concerning the failure of courts to issue a reasoned judgement. These complaints have been examined under article 14(3)(c) trial without undue delay - and article 14(5) right to an appeal - of the ICCPR. According to the Committees case-law under article 14(5), a convicted person is entitled to have, within reasonable time, access to written judgements, duly reasoned in order to enjoy the effective exercise of the right to have conviction and sentence reviewed by a higher tribunal according to law.201 It is considered, therefore, that the right to a reasoned judgement is an indispensable element for the enjoyment of the right of appeal (see Chapter V, 13. The Right of Appeal). The requirement that Courts should provide a reasoned judgment is a principle directly linked to the proper administration of justice; Court judgments should adequately state the reasons on which they are based. This should not, however, be understood as requiring a detailed answer to every argument or every fact dealt with during the trial. Article 281 of the Timorese CPC enumerates a list of various points which must be included in a written judgements, ranging from the information of the identify of the accused and the charges against her to the inclusion of the legal and factual grounds for the decision (article 281(2)). In addition, when a Court renders a convicting judgement, it has to provide reasons as to the choice and length of the sentence imposed on the accused (article 282). Complying with the requirements laid down in article 281 is considered to be essential in case there is a complete lack of factual and legal reasoning on which the Court based its decision the judgement is invalid (article 286(a)). A conviction for facts which were not included in the initial or amended indictment also results in the invalidation of the sentence (article 286(b)). In other circumstances, a failure to abide by article 281 will have to be repaired by a correction of the written judgement as per article 285. Article 349(4) provides that the judgement issued in an expedited proceeding is of a simplified nature. Human Rights Standards Articles 14(3)(c) and 14(5) International Covenant on Civil and Political Rights Relevant Provisions of CPC Articles 281, 282, 285 and 286

201

Human Rights Committee Communication No. 320/1988, V. Francis v. Jamaica, 24 March 1993, para. 12.2. 104

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13. THE RIGHT OF APPEAL International human rights law guarantees the right of appeal against a conviction. Article 14(5) of the ICCPR provides that everyone convicted of a crime shall have the right to have his/her conviction and sentence reviewed by a higher tribunal according to law. The right of appeal is a right guaranteed by the Covenant itself and its existence is thus not dependent on domestic law; the reference to according to law refers here exclusively to the modalities by which the review by a higher tribunal is to be carried out.202 The right to have a conviction and sentence reviewed by a higher tribunal is applicable to everyone convicted of any criminal offence, regardless of its seriousness. The Human Rights Committee has already stated that the guarantee is not confined to only the most serious offences.203 The appeal proceedings must provide a full review of the facts and the law in order to be in compliance with article 14(5) of the ICCPR. The Human Rights Committee has also expressed that Article 14(5) of the ICCPR does not necessarily require States to provide more than one instance of appeal.204 The right of appeal is not stipulated in clear terms in the Constitution of Timor-Leste. Irrespective of this omission, by virtue of the application of article 9 of the Constitution, the guarantee of an appeal as provided by the International Covenant on Civil and Political Rights shall directly be applicable in TimorLeste and should be guaranteed in Timor-Leste. The main aspects of the Right of Appeal in terms of international human rights law are: Appeal must be allowed for appeals on facts and law Appeal should be allowed to every case, irrespective of its seriousness States are not required to provide more than one level of appeal Accused should have access to written judgement and, when needed, to transcripts Accused has the right to free legal assistance Hearing in the presence of the accused should take place when appeal relates to question of facts Appeal should be heard and decided within reasonable time

Article 60(i) of the CPC expressly provides that any accused has the right of appeal against any decision that is unfavorable to him or her. The CPC of Timor-Leste devotes more than 40 articles to regulate the appeal (both ordinary and extraordinary) against decisions during criminal proceedings.205 The general rule as provided by article 287 is the maximum admissibility principle: appeals can be made against the orders of a judge, sentences and court decisions. Other information on the appeal procedures under the Timorese Criminal Procedure Code is included provided in Chapter II, 2. Procedures under the Criminal Procedure Code of Timor-Leste.

Human Rights Committee Communication No. R.15/64, C. Salgar de Montejo v. Colombia, 24 March 1982, para. 10.4. Human Rights Committee General Comment 13, para. 17. See also Concluding Observations Committee on the Rights of the Child, Greece, CRC, CRC/C/114 (2002) 25, paras. 170 and 171. 204 Human Rights Committee Communication No. 230/1987, Henry v. Jamaica, 1 November 1991, para 8.4 205 Articles 287 to 323.
202 203

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The calculation whether the duration of the criminal proceedings is reasonable needs also to consider the length proceedings at appeal level. (see Chapter V, 5. The Right to be Tried Without undue Delay) 13.1 THE RIGHT TO FULL REVIEW The Human Rights Committee has expressed clearly that the review under article 14(5) must relate to both the legal and factual aspects of a persons conviction and sentence. In other words, in addition to pure questions of law, the review must entail a full evaluation of the evidence and the conduct of the trial.206 The review by a higher court must be a genuine review of the issues in the case; appeals must be more than formal verifications of procedural requirements. The Human Rights Committee observes that article 14(5) does not require that a Court of a second instance proceeds to a factual retrial and seeks to obtain new factual evidence; an evaluation of the evidences presented at the trial and of the conduct of the trial can be sufficient in many circumstances.207 According to article 287(2) of the CPC, an appeal can deal with issues of facts and law. The Code further provides that even if an appeal has been made in relation to issues of law only, the Court can on its own initiative decide to consider some factual issues in the lower Courts decision (article 299(2)). The right to have a full review of the decision of the first instance Court will only take place when the Court deciding on the appeal has formally accepted the request for an appeal. According to article 304(2) of the CPC the Court can deny the request of an appeal on the basis of lack of reasoning as required by law (article 301). Comparing law in other countries can be of assistance in considering this issue. The Constitutional Court of Portugal decided in 2000 that an article of the Portuguese Criminal Procedure Code which includes a similar rule to the one found in article 304(2) of the Timorese CPC was unconstitutional if interpreted so as to allow the outright dismissal of an appeal, on account of the lack of substantiation of the appeal pleading as required by law. The Court hearing the appeal should in these circumstances give first an opportunity to the appellant to rectify his/her appeal submissions before rejecting the appeal.208 This position was supported by the European Court of Human Rights in a decision handed down in 2003.209 13.1.1 Limitations on the Right to Appeal The CPC of Timor-Leste considers in article 288 that certain decisions cannot be subjected to appeal; these are routine orders, decisions ordering the execution of acts that depend on the courts discretion and the civil compensation part of a sentence (where the amount of the compensation request falls within the jurisdictional limit of the court of first instance and the decision ordered compensation of less than one half of that limit). Further, article 288(c) provides for

Human Rights Committee Communication Nos. 623, 624, 626, 627/1995, V. P. Domukovsky et al. v. Georgia, 6 April 1998, para. 18.11. See also Communication No. 701/1996, Gmez v. Spain, 20 July 2000, para. 11.1; Communication No. 842/1998, Romanov v. Ukraine, 30 October 2003, paras. 3.1 and 6.5. See also Report of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, 7 December 1993, UN Doc: E/CN.4/1994/7, at paras 113 and 404. 207 Human Rights Committee Communication No. 536/1993, Perera v. Australia, para. 6.4. 208 Constitutional Court of Portugal, Decision No. 337/2000, 27 June 2000. 209 See also European Court of Human Rights, Czekalla v. Portugal, Application No. 38830/97,10 January 2003.
206

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the possibility of other limitations to the right of appeal when expressly provided by other provisions of this Code. Express limitations to the right of appeal are found in articles 41(3) and 350. Article 41(3) considers that in relation to challenge of impartiality of a Judge only a Court decision which does not order the dismissal of the Judge can be challenged on appeal.210 The right of appeal has also limitations in relation to expedited procedures. Article 350 provides that in an expedited proceeding, an appeal can only be filed against the final sentence or the order to use the expedited procedure in the case. 13.2 THE AVAILABILITY OF A JUDGEMENT AND RECORDS OF THE TRIAL An effective exercise of the right of appeal requires, as a minimum, access within a reasonable time to the written judgement of the first instance court. It may also require the transcript of the trial, access to evidence, and the provision of free legal aid. The Human Rights Committee has already considered that failure to ensure the availability of the written judgement of the court of first instance is a violation of article 14(5) of the ICCPR.211 According to article 279 of the CPC a written judgement of a decision related to a case decided within the ordinary procedure shall be read in a hearing within 15 days from the conclusion of the trial. In relation to cases which were dealt with an expedited procedure, article 349(4) determines a maximum of five days to provide the written decision. The proper application of these provisions invariably means that access to the written decision is given within a timeframe that is in compliance with international standards. The right of appeal can be adversely affected by delays in producing the transcripts of the trial hearing(s). Because of this kind of delay, in the Pinkney212 communication, the authors appeal was not heard until 34 months after his application for have his appeal heard; a delay that was incompatible with the right to be tried without undue delay and considered to be contrary to article 14(3)(c) and (5) of the ICCPR. Article 249 of the CPC regulates the recording of trial hearings. This article provides for a detailed list of issues which are required to be included in the written records of the hearings, notably oral motions and decisions of the Court. The requirement to record through video, audio or written forms transcribing of the statements made during the hearing (article 249(2)) is guarantee for an appeal. The need to have access to court recordings and the manner thereof - will depend on the nature of the appeal as well as on the extent of information included in the written decision (in case of an appeal against a final decision). Where an appeal is of an interlocutory nature and should be decided while the proceedings are continuing (article 296), an accused may need to have access to transcripts of the hearings in order to effectively implement her right of appeal.

For further information on challenges to the impartiality of Judges, see Chapter V, 2.3 Impartiality of Judges. Human Rights Committee Communication No. 320/1988, V. Francis v. Jamaica, 24 March 1993, para. 12.2. 212 Human Rights Committee Communication No. R.7/27, L. J. Pinkney v. Canada, 29 October 1981.
210 211

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The CPC is silent as to access to court records; this issue is nevertheless still regulated by article 26 of UNTAET Regulation 2000/11213 (as amended by UNTAET Regulation 2001/25) which provides that the Court shall ensure that written or recorded notes of the proceedings are made available, on request, to all parties to the proceedings, including the legal counsel of accused. The interpretation given in the Portuguese judicial system in relation to this issue can be of guidance. According to the Court of Appeal of Coimbra (Tribunal de Relao de Coimbra) when a person is willing to file an appeal challenging the facts as decided by the lower court, access to transcripts are necessary not only to identify the basis for the appeal, but also to determine clearly whether the appeal should be filed or not.214 This same Court considered that because of this need, the legal timeframe for filing an appeal 15 days in terms of article 411(1) of criminal procedure code of Portugal should only start once access to transcripts of the hearings is afforded to the appellant. 13.3 FAIR TRIAL GUARANTEES DURING APPEALS The right to a fair and public trial must also be observed during appeal proceedings.215 The guarantees of adequate time and facilities to prepare the appeal, legal counsel, equality of arms (including the right to be notified of the opposing partys submissions), hearing before a competent, independent and impartial tribunal established by law within a reasonable time and a public and reasoned judgment within a reasonable time, are equally applicable during the appeal process as to the proceedings at first instance Court. 13.3.1 Hearings before the Court hearing the Appeal According to the provisions of the CPC on the appeal process, in an appeal hearing will be held when: a) there is the renewal of evidence (article 307(3)); or b) when the Court considers it to be necessary (article 306(2)). In the remaining cases, the Supreme Court of Justice will discuss the appeal in a conference with all the Judges participating in the case but without the presence of the accused and his/her counsel as well as the public prosecutor. The possibility of deciding an appeal without holding a hearing is also found in criminal proceedings before the Cape Verdian, Macau and Portuguese courts; their respective codes provide for a number of the circumstances where an appeal can be decided through a conference of the Judges (articles 461, 409 and 419 respectively). According to international standards for a fair trial, the right to be present during appeal proceedings in not absolute; its implementation depends on the nature of the proceedings. In particular, it depends on whether the appeal court examines issues of fact as well as of law, and on the manner in which the appellants interests are presented and protected. If a court dealing with an appeal has jurisdiction to decide on both issues of law and fact, the right to a fair trial generally requires the presence of the accused. The Human Rights Committee has considered that the necessity of holding an appeal hearing will depend on the case in question. For example in Karttunen216 the Human
UNTAET Regulation 2000/11 on the Organization of the Courts in East Timor. Tribunal de Relao de Coimbra, Case No. 114/05, 23 February 2005. 215 See Human Rights Committee General Comment No. 13, para. 17. 216 Human Rights Committee Communication No. 387/1989, Karttunen v. Finland, paras. 7.1-7.3.
213 214

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Rights Committee was of the opinion that an appeal in relation to a decision not to disqualify a lay judge required oral proceedings before the Court of Appeal. In another communication, the Committee considered that the absence of an oral hearing in the presence of the accused in an appeal requesting the reduction of the sentence did not impact on the fairness of the review before the Court of Appeal and therefore article 14(5) was not violated.217 The European Court of Human Rights has provided clearer directions on this matter. If the court dealing with the appeal is only addressing issues of law, the European Court ruled that the appellant does not necessarily have the right to be present and there is no requirement to hold a hearing. The Court has consistently held that provided that there has been a public hearing at first instance, the absence of public hearings at a second or third instance may be justified by the special features of the proceedings at issue. Thus, proceedings [to request the authorization to submit an appeal] or proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements [of fair trial] even when the appellant was not given an opportunity of being heard in person by the appeal or cassation court.218 13.3.2 The Right to Legal Assistance There is a need to also guarantee access to legal representation in appeal proceedings. The lack of availability of legal assistance which prevents an accused from filing an appeal is considered to be in violation of article 14(5) as well as 14(3)(d) of the ICCPR.219 The Human Rights Committee has expressed that similar standards as to those applied to the entitlement for free legal assistance in first instance proceedings should be extended to proceedings at appeal level. 220 (see Chapter V, 6. The Right to Defend oneself in Person or through a Lawyer of ones own Choice) The Timorese CPC fully complies with this standard in that it lays down in article 68(b) that legal representation is compulsory up to the appeal level. When considering legal representation at the appeal level, the period of time between conviction and the filing or hearing of an appeal should always be sufficient for the defense to prepare its appeal.221 Human Rights Standards Articles 14(3)(c), 14(3)(d) and 14(5) International Covenant on Civil and Political Rights Relevant Provisions of CPC Articles 41, 60, 249, 279, 287, 288, 296, 299, 301, 304, 306, 307 and 350

Human Rights Committee Communication No. 789/1997, Bryhn v. Norway, 29 October 1999, para. 7.2. European Court of Human Rights, Bulut v. Austria, 22 February 1996, para. 40. 219 Human Rights Committee Communication No 526/1993, Hill v. Spain, 2 April 1997, para. 14.3. 220 See Human Rights Committee Communication No 554/1993, R. LaVende v. Trinidad and Tobago, 29 October 1997, para. 5.8. 221 Human Rights Committee Communication No 813/1998, Chadee et al. v. Trinidad and Tobago, 29 July 1998, para. 10.2.
217 218

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14. THE RIGHT TO COMPENSATION IN THE EVENT OF A MISCARRIAGE OF JUSTICE Article 14(6) of the ICCPR entitles a convicted person to receive compensation in cases of miscarriage of justice. According to this provision, compensation is payable when the following criteria are met: (a) A final conviction for a criminal offence has been made; (b) The person suffered punishment as a result of such conviction (e.g. a fine or imprisonment); and (c) The conviction has been subsequently reversed or pardon has been granted based on new or newly discovered fact, wholly or partly not attributable to him These standards do not require a State to pay compensation if a charge has been dismissed or an accused person has been acquitted by a higher court on appeal. However, some national systems allow for the payment of compensation in such circumstances as a means to remedy the loss or damage suffered as a result of the conviction. The Constitution of Timor-Leste provides that anyone who has been unjustly convicted has the right to fair compensation in accordance with the law (article 31(6)) Article 320 of the Timorese Criminal Procedure Code regulates compensation in certain circumstances which can be broadly considered as a miscarriage of justice. According to subsection 1 of article 320, the requirements for being entitled to receive compensation are: a) a convicting decision; and b) a subsequent acquittal by the review Court. In order to fully understand when compensation is payable under Timorese criminal law article 320 needs to be read together with article 315. Article 315 of the CPC establishes the grounds for a review of a criminal sentence. Newly disclosed facts or elements of proof that raise doubts as to the fairness of the conviction of the accused is one of the grounds for a review of a criminal sentence (article 315(1)(d)); reviews are therefore of a different scope than an appeal since an appeal can be filed when one of the parties do not agree with the decision of the Judge without needing any further requirement to be complied with. In comparing the national law with the standard set at international level, it can be seen that the Timorese CPC provides for a wider protection than that accorded under the ICCPR. Article 320 of the CPC also regulates the framework for the determination of the compensation payable in cases of miscarriage of justice. A person who has the right to receive compensation as per application of article 315 is entitled to obtain compensation for the damage that he has suffered (article 320(1)). The damage as referred to in this provision can be interpreted as to include both pecuniary and nonpecuniary damages. It can also include the return of the value of any fines, tax costs and court costs paid by the accused during the proceedings. The wording used in article 320 is one which imposes a duty on the Court reversing a conviction to decide on the compensation, independent of any specific request by the accused. While article 14(6) of the ICCPR deals also with compensation when a pardon has been granted, this matter is not regulated by the CPC.

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Human Rights Standards Article 14(6) International Covenant on Civil and Political Rights Article 31 Constitution of RDTL Relevant Provisions of CPC Articles 315 and 320

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CHAPTER VI: CHAPTER VI: PROTECTION AND REDRESS FOR VICTIMS OF CRIME PROTECTION AND REDRESS FOR VICTIMS OF CRIME
It is undeniable that there has been more development in the area of the protection of the rights of accused than that of victims. This was the direct consequence of the fact that when a person is tried he is in the hands of the State apparatus, therefore deserving a certain degree of attention in order to guarantee that his rights are not violated. The international community is now working towards the development of instruments which specifically deal with the issue of protection and redress for victims of crime. While there is no specific convention dealing with the rights of victims of conventional crimes, the United Nations General Assembly adopted, in 1985, the Declaration on the Basic Principles of Justice for Victims of Crime and Abuse of Power (Victims Declaration). A guide to assist in the application of this Declaration was developed in 1990 by the United Nations Congress on the Prevention of Crime and the Treatment of Offenders.222 This has no binding character in Timor-Leste however can assist in identifying the needs of victims of crime in Timor-Leste with the development of a new criminal process. The United Nations Convention against Transnational Organized Crime contains specific provisions concerning assistance to and protection of victims. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing this Convention, contains even more detailed rules regarding this issue specifically within the realm of human trafficking. At the time this Guide was written, Timor-Leste had not yet ratified these instruments. The Constitution of Timor-Leste affords protection to victims of crime by laying down a victims right to access to Courts as enshrined under article 26. 1. THE NOTION OF VICTIM According to article 1 of the Victims Declaration, the term victims means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws, including those laws proscribing criminal abuse of power. This definition covers many categories of harm sustained by people as a consequence of criminal conduct, including physical and psychological injury and financial or other forms of damage, irrespective of whether the injury or damage concerned was the result of an act or a failure to act. Whether someone can be considered to be a victim is not dependant on the identification of the perpetrator; a person can still be considered as a victim even though the perpetrator has not been identified, apprehended or prosecuted (article 2 Victims Declaration). The non-identification of an alleged perpetrator will invariably mean that there will be difficulties to proceed with the case to trial though. The Victims Declaration also expressly provides that a familial relationship between the perpetrator and the victim does not preclude the recognition of the status of the victim.

222

UN doc. A/CONF.144/20. 112

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A general overview of the notion of a victim within the Timorese is dealt with in the Guide under Chapter I, 1. General Aspects of the Criminal Procedure Code. According to articles 71 and 214 of the CPC, the immediate family members of a deceased victim would replace the victim before the Courts in that the entitlements of the deceased victim are transferred to the family representative. This is not the case in relation to the death of an accused since criminal responsibility cannot be transmitted to anyone, including to family members of the accused.223 The role of the victim within the criminal proceeding is substantially delineated in the CPC now applicable in Timor-Leste in terms of its articles 71 and 72. According to article 72(1), a victim is procedurally positioned as the assistant of the public prosecutor. A victim of a criminal offence is entitled to play a limited active role in the proceedings. For example, article 41(2) entitles a victim to challenge the impartiality of a Judge or a prosecutor; article 235(4) states that a victim can request that a decision of the prosecution to close the investigation and not proceed with an indictment be reassessed by the prosecutors immediate supervisor. The victim is also entitled to request financial compensation for the damages incurred as a consequence of the criminal act against him (article 72(2)). 2. TREATMENT OF VICTIMS IN THE ADMINISTRATION OF JUSTICE Current attempts at the international level to strengthen the position of victims in the administration of justice reflect an admission of the fact that national justice systems have often focused on the offender and her relationship with the State, to the exclusion of the rights, needs and interests of victims. The capacity of a Court to effectively respond to a crime is, in many circumstances, largely based on the actions taken by the victims of crimes. Many crimes are brought to the knowledge of the police or prosecution through information from victims. In relation to semi-public cases, a victims formal complaint is the determining factor as to whether the crime will be dealt by the criminal system. Consequently, the way that the administration of justice treats victims can have an impact on the overall efficiency of the justice system in combating criminality. 2.1 THE VICTIMS AND THE PROSECUTION The relationship between the victim and the prosecutor is regulated mainly by article 72 of the CPC. According to this provision, the victim is solely an assistant to the prosecutor. The victims position is one of subordination to the prosecutor. The CPC of Timor-Leste chose not to adopt the system applied in other CPLP members, including Portugal, Macau, Cape Verde and Guinea Bissau, which allows the victim to have a more active role in the proceeding including through the power of filing an independent indictment and providing evidence to the case. The relationship of victim-prosecution is always the same independent from the nature of the crime (article 72(1)). Irrespective of this subordinate and auxiliary position, the CPC identifies some specific instances where the victim is given a prominent role in the proceedings.

223

See article 13(1) Draft Criminal Code. 113

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2.1.1 Role of Victims during Investigation In addition to the formal relationship with the prosecutor as explained above, a victim will often the most important source of information for the prosecution, and therefore will frequently play an important role during the investigations. Three specific provisions in the CPC can be highlighted in relation to a victims involvement during the investigation phase: 1) the victims right to participate in the examination of the crime scene (article 145), 2) victims right to request that a declaration is taken for future use and to participate in the relevant hearing (article 230(2) and (3)); and 3) victims right to request a re-assessment of the decision not to proceed with the indictment at the closure of the investigation phase (article 235(4)). The victim might also play an important role in identifying the suspect as per application of article 163 of the CPC. 2.2 INFORMING THE VICTIMS In order for victims to take part in the criminal proceedings effectively, they should be informed about the time and scope of the proceedings and the role they are expected to play (article 6 Victims Declaration). The need for a victim to receive information is paramount to the criminal justice system.224 The CPC of Timor-Leste includes specific steps on the provision of information to the victims about the development of the proceedings. The CPC of Timor-Leste imposes on the Court the duty to inform through notification -the victim of the filing of the indictment (article 237) and the day of the scheduled hearing (article 240). According to article 77 the victim can consult the case file and obtain copies of documents on the same footing as the accused and her defence counsel. 2.3 PRESENCE OF VICTIMS DURING THE HEARINGS The presence of victims during the hearings always carries great importance. The position taken by the CPC is that for the smooth administration of justice it is necessary to distinguish between a necessary as opposed to desirable presence of the victim in the hearings. Article 261(1) provides that if a victim is absent from a hearing the hearing can be postponed in case the Court believes that her presence is essential for the discovery of the truth, and that the presence of the victim can be secured in the next scheduled date. The postponement can only be made once, and consequently in case that the victim also fails to appear in the re-scheduled date, the hearing will be take place irrespective of the victims absence. 2.4 VICTIMS RIGHT TO PROTECTION OF THEIR PRIVATE LIFE AND SAFETY States should take measures to protect the safety and private life of victims. This is clear since victims are also entitled to all fundamental guarantees, including the right to personal integrity (article 9 of ICCPR and article 30 Constitution of Timor-Leste), the right to privacy (article 17 of ICCPR and article 36 of Constitution of Timor-Leste)

224

Guide to the Victims Declaration, para. 51. 114

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and the right not to be subject to torture or cruel, inhuman or degrading treatment (article 7 of ICCPR, article 2 CAT and article 30(4) Constitution of Timor-Leste). The Victims Declaration expressly provides that judicial and administrative steps should be taken in order to guarantee the safety of victims and to minimize inconvenience to victims (article 6(d) Victims Declaration). One area which is directly related to a victims right to protection of her private life is the possibility of excluding public participation in the hearings. According to article 76(1) of the CPC the need to safeguard the dignity of the victim is a legitimate ground for closing a hearing to the public. (see Chapter V, 4. The Right to a Public Hearing) The CPC does not regulate in substantial terms the issue of safety of the victims; this area is in many countries, regulated in different legislation. In the CPC one of the two main references to this issue is the power which the Court has to order the accused to be temporarily absent from a hearing when the presence of the accused can contribute to inhibit or intimidate any persons who are to testify in Court (article 253(4)) (see Chapter V, 8. The Right to be Present at Ones Trial). A victim is also afforded some level of protection through the application of article 163(4) which establishes the possibility of the victim to identify a suspect without being seen by the suspect in cases where there is possibility that the victim would be intimidated. According to article 8 of the Special Regulation on Terrorism, Violent and Highly Organized Criminality the protection of witnesses and other participants against threats, pressure or intimidation is to be regulated by special legislation. 3. COMPENSATION AND ASSISTANCE TO VICTIMS OF CRIME 3.2 Compensation Financial compensation by the offender for physical or psychological injuries or other harm inflicted in connection with crime is important for the victim. Payment of compensation is, many instances, seen to be recognition of the hurt done to the victim by the offender. When an order for compensation is made by the Court, it is also a symbol of the States concern for the victim.225 This kind of recognition may have an important healing effect on the victim and may also increase his confidence in the criminal justice system. The issue of victims civil compensation is dealt with quite extensively in the new CPC. The CPC provides for specific directions on how the right of a victim to request for financial compensation is to be implemented in practice. The CPC imposes the financial responsibility for compensation of the victim is imposed on the accused. The determination as to whether the accused is liable to pay compensation is automatically assessed in the course of the criminal proceedings. A civil compensation is not considered together with such proceedings only when the victim expressly states to the Court his willingness to separate the civil claim within 8 days of receiving information about the right to claim compensation (article 72(2)).

225

Guide to the Victims Declaration, para. 83. 115

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The Court has the power to decide on the separation of the civil compensation from the criminal proceeding when non-separation could, for example, result in considerable delay in the proceeding (article 72(4) and 284(2)). The written judgment of the Court has to include information on the civil compensation awarded to the victim (article 281(3)(b)). In an expedited trial, civil compensation for a victim is decided in the criminal proceeding. Article 349(2) instructs the Court to hear the victim with regard to any suffered losses when possible. In relation to civil compensation, article 72(2)(c) of the CPC provides that a victim is represented by the public prosecutor. It is therefore the duty of the prosecution to collect information which can be useful for determining the compensation payable to the victim (article 225). Compensation is evidently dependant on the identification of the victim(s). Based on this, article 72(3) allows for the inclusion of information on the compensation at a later stage in the proceeding once the victim is identified. It is worth noting that the CPC requires that the victim must be informed about his right to compensation for damages suffered as a result of an offence (article 72(2)). The CPC of Timor-Leste allows for the Court to request an accused to provide a monetary deposit in cases where it fears that the economic situation of the accused might deteriorate (article 208). Amongst the reasons identified for requiring this deposit is the possible financial responsibility of the accused for the payment of compensation to the victim. This procedure has the potential to provide a certain degree of assurance that the compensation will be paid by the accused. The implementation of this procedure however has to be in accordance with the economic reality of Timor-Leste. When compensation is not fully available from the offender or other sources, the Victims Declaration suggests that States should attempt to provide financial compensation in certain serious cases, such as those resulting in significant bodily injury or death or serious impairment to the victim (article 12). With a view to implementing this principle States are encouraged to establish, strengthen and expand national funds for compensation to victims. 3.3 Assistance In addition to various financial needs, victims of violent crimes may also require immediate or even long-term medical care as well as other forms of assistance (article 14 Victims Declaration). This can be, amongst other things, material, medical, psychological or social assistance. The issue of assistance to victims of crimes is not included in the CPC. The draft Domestic Violence Law for Timor-Leste appears to include, within its scope, some provisions on the assistance for victims of crimes of domestic violence.

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Human Rights Standards Articles 7, 9 and 17 International Covenant on Civil and Political Rights Article 2 Convention against Torture Articles 1, 2, 6, 12 and 14 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power Articles 30 and 36 Constitution of RDTL Relevant Provisions of CPC Articles 26, 41, 71, 72, 76, 145, 163, 208, 214, 225, 230, 235, 237, 253, 261, 281, 284 and 349

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ANNEX: ANNEX: LIST OF WEB-BASED RESOURCES LIST OF WEB-BASED RESOURCES

1. ACCESS TO UNITED NATIONS INTERNATIONAL HUMAN RIGHTS TREATIES Office of the High Commissioner for Human Rights (OHCHR) http://www.ohchr.org/english/law/index.htm 2. ACCESS TO DOCUMENTS FROM THE HUMAN RIGHTS COMMITTEE General Website of Human Rights Committee http://www.ohchr.org/english/bodies/hrc/index.htm OHCHR Database http://www.unhchr.ch/tbs/doc.nsf Includes documents by country University of Minnesota Human Rights Library http://www1.umn.edu/humanrts/undocs/allundocs.html Links to all Human Rights Committee Communications http://www1.umn.edu/humanrts/gencomm/hrcomms.htm Link to all Human Rights Committee General Comments Office of Comparative Law of the Office of General Public Prosecutor http://www.gddc.pt/direitos-humanos/textos-internacionais-dh/universais.html Link to human rights international and regional instruments and other materials in Portuguese 2. SEARCH ENGINES ON UN HUMAN RIGHTS DOCUMENTS Netherlands Institute of Human Rights http://sim.law.uu.nl/sim/Dochome.nsf University of Minnesota Human Rights Library http://www1.umn.edu/humanrts/google/localsearch.htm 3. JURISPRUDENCE OF EUROPEAN COURT OF HUMAN RIGHTS European Court of Human Rights Website http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en 3. WEB BASED LEGAL RESOURCES OF SOME CPLP MEMBERS Supreme Court of Justice Cape Verde http://www.stj.cv/ Official Macau Legal Web http://www.macaolaw.gov.mo/pt/index2.asp Links to laws and jurisprudence of courts Website Legis-Palop http://www.legis-palop.org/ Link to legislation of African Portuguese Speaking Countries Constitutional Court of Portugal Official Website http://www.tribunalconstitucional.pt/tc/home.html Search Engine http://www.dgsi.pt/atco1.nsf/Pesquisa+Termos?OpenForm Supreme Court of Justice Portugal http://www.stj.pt

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Court of Appeal of Coimbra Tribunal da Relao de Coimbra http://trc.pt Court of Appeal of vora Tribunal da Relao de vora http://tre.pt Court of Appeal of Lisboa Tribunal da Relao de Lisboa http://www.trl.pt Court of Appeal of Porto Tribunal da Relao de Porto http://www.trp.pt Court of Appeal of Guimares Tribunal da Relao de Guimares http://www.trg.mj.pt Public Prosecution Services of Lisboa http://www.pgdlisboa.pt/pgdl/ Link to legislation and jurisprudence of Portugal, includes search engine

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