Law On Truth and Clemency
After six months of internal debate and very little public consultation, Timor-Leste's Parliament passed a Law on "Truth and Measures of Clemency for Diverse Offenses" on 4 June 2007. It is currently pending President Jose Ramos-Horta's signature or veto.
The President referred the law to the Court of Appeals on 3 July, asking for an advisory opinion on constitutionality. On 5 July he promised La'o Hamutuk that he will not sign it regardless of the court's findings, and that it will be up to the new Parliament to decide whether to pass a new amnesty law.
On 16 August, the Court of Appeals, comprised of judges Claudio Ximenes, Jacinta Correia da Costa and Maria Natercia Gusmão Pereira, (English translation or Portuguese original text of opinion) declared Articles 1 and 7.1 of the law unconstitutional because the limited time period applicable for clemency violates the principle of equality in Article 16.1 of the Constitution of RDTL. The court also found that Articles 2, 8 and 14 of the law do not violate the Constitution.
An unofficial, annotated English translation of the law as passed by Parliament follows below. (Portuguese original, 500 kb PDF)
La'o Hamutuk's June 2007 Bulletin contains an editorial on this law, which we believe is bad for justice and for Timor-Leste. The Bulletin includes a table enumerating the 180 types of crimes which are eligible for amnesty.
The Judicial Systems Monitoring Programme (JSMP) has also analyzed the law from a legal perspective (English, Tetum, Bahasa Indonesia).
Earlier, in March, Parliament approved a draft of this law in committee and plenary (Portuguese, English), but extensive negative public reaction caused some revisions.
However, the law as passed is still full of errors. Green text in [square brackets] added below represents the translator/editor's effort to clarify the intentions of the law's drafters. The exact meaning of the words in the law, pink outside the brackets, is incorrect or unclear.
DEMOCRATIC REPUBLIC OF TIMOR-LESTE
Draft approved in National Parliament Plenary on 13 March 2007, in general.
On Truth and Measures of Clemency for Diverse Offences
[Unofficial translation; italics and bold as in original. Green text added by translator.]
On 30 August 1999 all the people of Timor-Leste went en masse to the polls to vote in a referendum. The overwhelming majority chose the path of independence. The latter having been recovered, a giant effort to build Peace and Stability was initiated as a pre-condition for the establishment of a Democratic State based on the Rule of Law. Also, conscious that national reconciliation was, and continues to be, the necessary and indispensable foundation for National Unity, several measures were taken with a view to guaranteeing it.
From October 1999 to April 2006 there was every indication that the country was following the irreversible path of peace, stability, and democracy. The year 2006 marked the seventh anniversary of that historical date (30 August 1999), as well as the 31st anniversary of the Proclamation of the Democratic Republic of Timor-Leste and the 4th anniversary of the restoration of independence. But it was also a year in which all of us experienced weeks of anxiety recalling us of the violence that we went through in December 1975 and September 1999. This new crisis drew our attention to a new need to insist on justice for searching the truth so as to educate all the Timorese to respect the Constitution and the laws. But it also made it clear that it demands from each of us the capacity to understand the phenomena and the magnanimity to forgive and to reconcile. Thus, the need arises to take political as well as legislative measures intended to define a legitimate framework of a number of acts and actions that will enable the investigation of certain cases in the search for the material truth, thereby meeting the deepest expectations of all the people and reinstating on solid bases the atmosphere of peace and stability in the spirit of each and every citizen and within the entire Timorese society.
At the time when society demands and the State takes on the responsibility to recognize and valorize all those who fought for National Independence, the search for truth is the highest value that the whole Nation expects to attain, a truth understood in the context in which the facts take place, valuing each and every act by placing it within a political state of affairs proper of the implosion of some institutions and of disintegration of other institutions in a State that is still under construction.
Once the truth is established, justice should be sought, based fundamentally on the values inherited from our ancestors as combined with those values resulting from the progress that our people chose to embrace and identify themselves with so that decisions are assumed by each and everybody in a conscientious manner.
Pursuant to articles 92 and 95.2, subparagraph g), of the Constitution, the National Parliament enacts the following:
Insofar as they have been committed between 20 April  and 30 of 30 April 2007, there shall be amnesty for the following offences:
a) Crimes for taking part in acts provided for and punishable in article 55 of the Criminal Code; [this refers to the Indonesian Penal Code, in effect in Timor-Leste because Timor-Leste has yet to adopt its own Penal Code. Bracketed phrases are summaries of some of the crimes covered by the referred-to sections. Article 55 refers to both carrying out crimes directly and inciting others to conduct criminal behavior.]
b) Crimes of voluntary bodily offences, where there are sequels or circumstances provided for in articles 351 to 361 of the Criminal Code; [assault, maltreatment, negligent homicide, torture, including resulting in death]
c) Crimes of larceny and trickery provided for in articles 362 to 395 of the Criminal Code [theft, extortion, robbery, burglary, embezzlement, fraud], where there is ex parte pardon;
d) Crimes against the security of the State provided for in article 104 to 129 of the Criminal Code; [sedition, attempted murder of head of state, treason, subversion, rebellion, conspiracy to any of these, collusion with or aiding the enemy, importing weapons to support revolution, espionage]
e) Crimes against public order provided for in articles 154 to 177 [expressing hostility against the government, violating national symbols, inciting ethnic hatred, incitement to violence or disobedience, conspiracy to do any of the above, trespass, breaking and entering, criminal association, riot, menacing, disturbing the peace, ridiculing a religious service] and crimes against public authority provided for in articles 207 to 241 [insulting public authority, bribery, threatening a public official, coercion, rebelliousness, disobeying an official order, false reporting of a crime, harboring a fugitive, assisting in a prison escape, disobedience of a court request, violating a court order, impersonation] of the Criminal Code, save where such crimes have been committed through the media;
f) Crimes of defamation provided for in articles 310 to 321 of the Criminal Code [defamation, slander, libel], save where such crimes have been committed by the media;
g) Crimes provided for in articles 4 to 12 of the UNTAET Regulation No. 2001/12 (Code of Military Discipline); [ill-treatment of FDTL member, disorderly behavior, insubordination, disobeying an order, AWOL]
h) Crimes of use, carry and possession of firearm provided for in articles 1 to 7 and punishable by the provisions of UNTAET Regulation No. 2001/05 of April 2001, as long as the holder surrenders the firearm to police or military authorities in the 30 days subsequent to the entry into force of the present law; [possession, importing, manufacturing, use, purchase, or sale of unlicensed firearms, ammunition or explosives. PNTL and FDTL members are already exempt from these laws when acting in the course of their duties and in accord with their command policies and instructions]
i) Crimes against the general security of people and property provided for in articles 187 to 206 of the Criminal Code [arson, possession of explosives, preventing a fire from being controlled; damaging or sabotaging water works, electrical systems, ships, buildings or roads], where the qualification of such crimes does not result in material, personal and direct authorship of homicide punishable pursuant to articles 338 and subsequent articles of the Criminal Code [intentional or premeditated murder], or where the total value of the stolen or embezzled items, or of the property damages caused, or of the illicit benefits, in the attempted or accomplished form, is less than 10,000 dollars;
j) Crimes of disobedience provided for in article 155 of the Criminal Code [expressing hatred to the government] and other legal statutes;
k) All crimes committed by negligence or dolus eventualis which have not been provided for in this law.
l) Crimes committed by negligence, even where such crimes are punishable with imprisonment penalty of more than one year, with or without a fine, where the victim is an ascendant, descendent, sibling or spouse of the defendant or somebody the defendant lives with in analogous conditions, or where there is ex parte pardon.
m) Breaches of the Road Traffic Code provided for in Decree Law No. 6/2002 [6/2003, including traffic infractions, moving violations, drunk driving] and in other regulations relating to road traffic, parking and road transports, including the measures of security and accessory penalties resulting from such contraventions;
n) Breaches punishable with a fine penalty the maximum limit of which does not exceed 500 dollars and countermandings punishable with a fine penalty up to 2,000 dollars, with the exception of those contraventions of a fiscal, customs, financial and banking nature and the ones provided for in the subsequent subparagraphs;
o) Disciplinary offences punishable by Disciplinary Statutes approved by Decrees and Decree-Laws of the Democratic Republic of Timor-Leste directly or by specific statutes, where the applicable or applied penalty is not higher than suspension, as well as offences committed by functionaries or agents having a special status resulting from such Statutes, save where the imputed facts comprise criminal offences or where the offender has already been punished previously by censure or by a more serious penalty;
p) Military and police disciplinary offences where such offences are punishable with a penalty not higher than disciplinary imprisonment.
1. Amnesty decreed in subparagraphs a) and c) of article 3  shall be granted on suspensive condition of prior reparation to the victim even where no claim for compensation has been filed, save where there is ex parte pardon or desistence of the complaint.
2. The condition referred to in item 1 above shall be met within the 90 days immediately following notification served to the defendant for such purposes or, where this is not possible, within the 90 days of his or her notification for trial, where the defendant has not been notified before, regardless of notification.
3. The condition referred to in item 1 above shall be deemed to have been met when the aggrieved party or aggrieved parties declare themselves to have been the object of reparation or when they renounce the reparation.
4. Whenever the aggrieved party is unknown, or has not been found, or another justified reason has occurred, and where the reparation consists in the payment of a certain amount, the condition referred to in item 1 above shall be considered to have been met if the respective amount is deposited with the Banco Nacional Ultramarino/Caixa Geral de Depósitos in the name and to the order of the aggrieved party within a maximum period of 30 days from the date of entry into force of the present law.
5. Where the value of the compensation for repair has not been exactly determined, the judge, following a petition of the Public Prosecution or of the defendant to be submitted within the deadline referred to in item 2, shall establish such amount equitably through unappealable award.
6. In the cases provided for in item 5 above, or where the economic status of the defendant and the absence of criminal antecedents so justify, the judge, either officiously or upon petition, shall grant a new delay of 90 days to allow the defendant meet the condition referred to in item 1 above.
1. For the purposes of the present law, ex parte pardon shall mean the declaration of the aggrieved party, to be made directly in the records or by petition until the date of publication of the first-instance judgment, stating that he of she does not want the law suit to be filed or to pursue.
2. Pardon granted to one of the co-participants in the crime shall be extensive to the remaining co-participants.
3. Where there is a plurality of aggrieved parties or holders of the right to pardon, pardon shall only be effective where it is granted by all the aggrieved parties or holders of the right to pardon.
4. Where the aggrieved party has died or is disabled, the right to pardon shall pertain to the respective spouse and adult descendants or the legal representative and, in the absence of the latter, to the ascendants, siblings and descendants.
Objects used or intended to be used for the commitment of an offence for which amnesty has been granted pursuant to article 3 , or objects produced by such objects, shall forfeit to the State whenever, by their own nature or by the circumstances of the case, they pose a serious risk of being used in the commitment of new offences.
1. Regardless of the immediate application of the present amnesty, defendants who committed offences provided for in article 3  may, within 10 days from the date of the entry into force of the present law, file a petition requesting that the present amnesty do not be applied to them, in which case the order decreeing the amnesty shall be declared null and void.
2. The declaration made by the defendant referred to in item 1 above shall be irretractable.
3. Declarations of pardon, reparation, renunciation of reparation and withdrawal of reparation claim may be made in the records, before the Chief of suco or lian nain or before the public defender or attorney.
1. Amnesty provided for in article 3  shall not invalidate civil liability arising from facts object of amnesty.
2. Private prosecutors, victims or aggrieved parties who, at the time of the entry into force of the present law, have been notified and are in time to file claim for civil compensation attached to a criminal suit extinguished by the present amnesty may do so by providing evidence pursuant to the summary declaratory proceeding.
3. Aggrieved parties not constituting themselves in private prosecutors and private prosecutors not yet notified to file civil claims shall become so in order to be able to file their civil claims in 10 days, pursuant to item 2 above, under pain of having do to it in separate in a civil jurisdiction.
4. Whoever has already filed such claim may, within 10 consecutive days from the date of the notification that may be served on him or her for such purpose, request that the law suit proceeds, for the sole purpose of examining the same claim, and implicit use shall be made of the evidence provided for criminal purposes.
5. In case of proceedings containing order of indictment or setting a date for trial, where the criminal procedure is declared to be extinct by virtue of the present law, the aggrieved party may, within 10 consecutive days from the final sentence, request that law suit proceeds, for the sole purpose of determining the value of the civil liability, and implicit use shall be made of the evidence provided for criminal purposes.
6. Following the application of the present law, any of the parties or thirty parties intervening in suits for civil liability may, until eight days before the discussion and trial hearing, request the annexation of the proceeding in which amnesty has been decreed or, until the discussion and trial hearing is closed, request the annexation of certificate of the part of the proceeding deemed relevant for the civil claim.
1. As regards offences committed between 20 April  and 30 April 2007, there shall be amnesty on the following offences:
a) All penalties of fine cumulatively applied with penalty of imprisonment for the commitment of the same offence;
b) 180 days of the penalties of fine applied effectively or in substitution of penalties of imprisonment;
c) One year in all penalties of imprisonment or one sixth of the penalties of imprisonment up to eight years, or one eighth or one year and six months of the penalties of imprisonment of eight years or more, whichever is more favorable to the convict.
2. The contents of subparagraph d) of item 1 above shall be applicable to penalties of major imprisonment, military imprisonment, and military prison, where they exist.
3. The pardon referred to in item 1, subparagraphs b) and c) of article 9  above shall cover alternative imprisonment in the respective proportion.
4. In case of accumulation of penalties, pardon shall fall on the single penalty and shall be materially additionable to prior pardons, without prejudice to the provisions of article 10  of the present law.
1. Unless otherwise stated, reincidents shall benefit from the amnesty and pardon granted pursuant to the present law.
2. The following shall not benefit from the amnesty or pardon granted pursuant to the present law:
a) Habitual delinquents or habitual alcoholics and their equivalent as determined by judicial decision;
b) Members of the defence, police and security forces or functionaries and guards of prison services as regards the practice, in the exercise of their functions, of crimes of genocide, crimes against humanity, crimes of homicide with direct intent.
c) Transgressors of the road traffic code, where they have committed the offence under influence of alcohol, or have abandoned the victim, regardless of the penalty;
3. The following shall not benefit from the pardon provided for in article 9 above:
a) Individuals sentenced for having committed crimes against the economy or fiscal, larceny, or embezzlement, where such crimes have been committed through falsification of documents;
b) Individuals sentenced by a penalty of imprisonment for having committed sexual crimes where the victims have less than 14 years of age or for other type of sexual violation;
c) Individuals sentenced by a penalty of imprisonment of more than 10 years for having committed crimes against people and whose penalty of imprisonment has already been reduced by virtue of a prior pardon;
d) Individuals sentenced by a penalty of imprisonment for having committed crimes of drug trafficking.
4. Exclusion of pardon provided for in items 1 and 2 above shall not infringe on the application of pardon provided for in article 9 in relation to other committed crimes and the appropriate accumulation of penalties shall apply.
As regards offences committed until 30 April 2007, penalties of imprisonment of less than three years applied to delinquents with less that 18 years of age at the time of the commitment of the crime, or to delinquents with 60 years of age or more as of 30 April 2007, shall always be substituted with a penalty of fine, save where they are reincidents or where they are found to be in one of the situations provided for in the following article.
Amnesty and pardon provided for in the present law shall be granted on condition that the beneficiary is not to commit another malicious offence in the succeeding three years from the date of entry into force of the present law, in which case the penalty applied to the supervenient offence shall be added by the penalty or part of the penalty of the pardoned offence.
As regards convictions resulting in a suspended sentence, pardon provided for in the present law and the provision contained in article 10 shall only apply where suspension is to be revoked.
As regards proceedings relating to facts which occurred until 31 July 2006: [probably intended as 30 April 2007]
1) Not yet submitted for trial and which, notwithstanding the amnesty granted in article 1, have to proceed for the examination of crimes susceptible of desistence of complain, the court, before commencing the discussion and trial hearing, shall make an attempt to compose the parties.
2) Within the 5 days immediately after the entry into force of the present law, a re-examination of the prerequisites of the coercive measures or preventive measures shall be undertaken at the request of the Public Prosecution or officiously by the interested parties, depending on the stage of the proceedings.
3) Revocation of coercion measures provided for in articles 186, 187, 188, 191, 192, and 193 of the Penal Procedural Code shall be mandatory as long as it is officially requested by the interested parties or their representatives within five days of the entry into force of the present law.
Without prejudice to the norms of Criminal Record, all the records relating to transgressions, contraventions and contra-ordinations for violation of norms of the Traffic Code and complementary legislation committed until 31 July 2006: [probably intended as 30 April 2007] shall be cancelled.
1. So long as there is a criminal proceeding on trial hearing at a first instance court or on appeal against any party interested in applying the measures of clemency and amnesty provided for in the present law, the legal timeframe for the request of the application of such measures shall be extended up to ten days after the final decision becomes final.
2. The criminal procedure of each and every proceeding under investigation by the police or the public prosecution relating with the matter of fact and matter of law dealt with in the present law shall be extinct.
4. Where a proceeding is in the phase of investigation, or in the phase of accusation by the public prosecution, or in trial phase, amnesty can only be requested by any defendant within 20 days after the reading out of the sentence or ten days after the sentence became final.
5. For the purposes of the present law, beginning of investigation process shall refer to cases under criminal investigation which have not yet been the object of a decision by the public prosecution or the competent court.
6. From the moment amnesty is requested, the execution of the applied penalty shall be suspended.
7. Whether or not there is accumulation of penalties, no single penalty higher than six years of imprisonment or ten thousand dollars of fine shall be applied to any of the crimes committed as a consequence of the crisis occurred between 20 April 2006 and 30 April 2007 and to those provided for in articles 324 to 361 of the Criminal Code in force or to the crimes provided for in UNTAET Regulation No. 5/2001 of 23 April.
8. Where strong mitigating factors exist, the penalty may be further reduced to one- half and its execution suspended up to the same number of years.
9. Participation in the National Liberation Struggle, as well as inexistence of previously committed crimes and good civic and social behaviour shall constitute mitigating factors, to be considered on an individual basis.
The present law shall enter into force on the day after its publication.
Dili, 13 March 2007. [ 4 June 2007]
The Timor-Leste Institute for Development Monitoring and Analysis (La’o Hamutuk)