Ambassador Kamalesh Sharma
Special Representative for the Secretary-General
Dili, East Timor
Ana Maria Pessoa Pereira da Silva Pinto
Minister of Justice
Dili, East Timor
Dr. Domingos Maria Sarmento
Vice-Minister of Justice
Dili, East Timor
We have been following with great interest the trials occurring at the Special Panels for Serious Crimes established in the Dili District Court. We have some concerns and recommendations we hope you will consider.
The trials occurring before the Special Panels are crucial both to bring justice to the victims of past violence, and to strengthen accountability and the rule of law. As you know, the UN's International Commission of Inquiry recommended in January 2000 that an international tribunal be created for East Timor. No such tribunal was created -- largely due to strong resistance from the Indonesian government -- and the Special Panels and the Ad Hoc Human Rights Court in Jakarta must try to fill that void. The Special Panels also have many of the features of a mixed national-international tribunal due to UNTAET's extensive role in their creation and administration, and the presence of international judges and prosecutors. We are concerned about the perception in East Timor and in the international community that justice is not being done.
We are aware of the devastated condition of East Timor's justice system when UNTAET and the transitional governing structures began their work. We also realize that efforts have been made to improve the Serious Crimes Unit in particular and to improve administration and the defense bar through new positions. In addition, the UN and the Justice Ministry share responsibility for the Special Panels. But there are some long-standing concerns that have yet to be resolved. We hope that the Ministry of Justice will work with the UN to achieve progress in these areas as soon as possible:
Ensure adequate defense: We understand that three international Public Defenders positions have been created (with two still vacant), following a period of inadequate defense and reliance on lawyers seconded by international NGOs. We urge that the remaining two posts be filled as quickly as possible with well-qualified lawyers, that adequate resources be provided to these posts, and that the pool of public defenders be expanded as necessary to meet defendants' needs.
Address the problem of empty seats on the Court of Appeal: Two out of three chairs are empty after the contracts of the sitting judges ended. There is now a backlog as nearly all Serious Crimes cases have been appealed.
Address the problem of empty seats on the Special Panels: One of the Special Panels is short an international judge, and we understand a Timorese judge is on maternity leave. This means that one panel must borrow a judge from the other, and the two panels are unable to sit concurrently.
When recruiting judges, ensure appropriate experience: International judges should have sufficient grounding in international human rights and humanitarian law. To ensure the appointment of judges with considerable trial experience, the job level for judges should be raised from its current P-3 level.
Ensure adequate trial transcription or, at a minimum, effective audio recording: There are no written trial transcripts. Audio recordings on CD-ROMS are now being used, but 3-5 languages are used in any given trial. According to one source, on at least one recording, all languages were recorded together on a single, unintelligible track. The lack of a tracking mechanism for the CD-ROMS makes it very difficult to locate particular testimony. We understand that as a result the recordings are rarely used and much time is devoted to disputes about prior testimony.
Address the lack of qualified interpreters: Proceedings are often delayed while an interpreter is located, or interrupted to check or protest the quality of translations, in those cases where a Timorese judge or a Malaysian case manager can catch the translation problems.
Institute a trial calendar: The absence of a trial calendar for the court means that days of trial are lost because people do not know when their case is on the calendar and do not attend.
Provide judges with necessary support staff: The judges lack law clerks and secretaries, hampering their ability to conduct legal research.
We understand a position has been filled at the beginning of July to help coordinate court administration. This may be an opportunity to address longstanding recommendations relating to court administration.
Adequate funding is necessary to ensure the Special Panels can deliver justice to all parties. The UN, the Timorese government, and bilateral donors share responsibility in this area. However, some basic administrative and staffing changes will not require significant new funding and should be implemented immediately.
Please do not hesitate to contact us if you have any questions or we can be of assistance.
International Justice Program
Acting Executive Director