Felicity Gerry QC and Jeswynn YogaratnamCharles Darwin University School of Law

TIMOR-LESTE: ACCESS TO JUSTICE, JUST OUTCOMES AND THE FUTURE FOR DOMESTIC

VIOLENCE SURVIVORS…

The 2010 public law on domestic violence in Timor-Leste (LADV) was expected to achieve equality for women.Has it been effective?What about customary practices?Is Timor Leste ready to sign the 2014 Istanbul Convention (legally binding standards which are meant to improve prevention of violence, protection of victims and prosecution of perpetrators)?

The Democratic Republic of Timor-Leste became an independent nation in 2002, after decades of political upheaval, and a devastating conflict in 1999 which displaced almost 75% of the population and destroyed 70% of the infrastructure. It has a population of 1,210,233 expected to rise to 3,025,073 in 2050. UN figures have put the share of women in formal wage employment at 35%. In one recent count, the proportion of women who had experienced domestic violence in a 12 month period was 29%. Life expectancy for women is a little over that for men at 69 years. Maternal mortality ratio (per 100,000 live births) is 300.

2009 alternative CEDAW report “presented the real life of women in Timor-Leste” & identified the crucial issues in which Timor-Leste women faced extreme discrimination:

• failure to achieve female electoral representation;• failure to give recognition to widows who helped during the fight for

independence, civilians who suffered human rights abuses, or women survivors of sexual violence.

• Failure to promote human rights in schools • Impunity for perpetrators including an amnesty given to 94

prisoners thus Intimidation of victims in the judicial process.• Ineffective gender mainstreaming policy.• Inadequate literacy and HIV/AIDS programmes, especially in rural

areas• A lack of access to justice for women because laws were written in

Portuguese, not disseminated properly, lack of awareness and discouragement due to family pride

 

In order to fully implement women’s right to equal justice as set out in Article 15 of the Constitution, the alternative NGO report emphasised a real need to develop the justice sector by approving the draft Domestic Violence Law, improving awareness of how to bring a case to court together with transportation and financial support significantly because, whilst traditional justice was more accessible, cases were resolved by men who made decisions through a family approach which did not consider women’s feelings as victims. The women were never asked their opinions or involved in the decision making process. In 2009/10 nearly 40% of women responded affirmatively to experiencing physical violence since the age of 15. Clearly the priority was to put some public protection in place.

Health Professionals and Lawyers Understandings of Domestic Violence and the Domestic Violence Law: the 2011 Judicial System Monitoring Program survey by Suzanne Belton Senior Lecturer, Menzies School of Health Research, Darwin, Australia: < http://www.menzies.edu.au/page/Our_People/Researchers/Suzanne_Belton/> 

The Timor Leste Law Against Domestic Violence which came into force in 2010 (LADV) was part of a package of reforms which brought an expectation in Timor-Leste that the new legislative framework would not just enable the courts to deal with perpetrators but would be part of a landscape of improvement in awareness and quality of life for women and children. Law No. 7/2010 in force 7th July 2010

The objectives of LADV can only be achieved if the responsible parties - police, public prosecution services, legal aid service providers, health care and social services, community leaders and the judiciary recognize and tackle the issues, ensure the effective implementation of relevant legislation and provide adequate resourcing. To avoid impunity for perpetrators, to protect survivors and to bring about attitudinal change the system envisaged by LADV needs to function effectively.

…linked to the Penal Code but also deals with the requirement for assistance and places of safety for victims.

TERMS OF LADV

LADV contains 42 articles, many of which are designed to interact with the Penal Code provisions and cover not just coercive responses to acts of violence but also requirements to raise awareness, provide education, support study and research, create and allow integrated policy, coordination and monitoring, provision of support centres, hotlines, specialised services, assistance by police officers and lawyers, and rights to maintenance as well as support for offenders and measures for reintegration. It is a comprehensive document and implementation was followed by an innovative programme “to provide professional development to increase knowledge of health professionals and lawyers of the new Penal Code (2009) and Domestic Violence Law (2010); to build the capacity of participants to understand and fulfil their responsibilities under the new laws; and to improve access to justice and medical treatment to victims of domestic violence via JSMP, a Timorese nongovernment organisation that observes and comments on the legal system, as well as offering some legal services, such as a Victim Support Unit (Judicial System Monitoring Programme 2010)”. Health Professionals and Lawyers Understandings of Domestic Violence and the Domestic Violence Law: the 2011 Judicial System Monitoring Program survey by Suzanne Belton Senior Lecturer, Menzies School of Health Research, Darwin, Australia: < http://www.menzies.edu.au/page/Our_People/Researchers/Suzanne_Belton/>

The LADV has been drafted to provide a broader meaning to domestic violence which includes physical violence, sexual violence, psychological violence and economic intimidation

In 2011, JSMP launched three reports: ‘An Overview of the Justice Sector in Timor-Leste 2010’, ‘A Critical Analysis of the Legal Framework’, relating to the protection of victims of Gender Based Crimes in Timor-Leste, and ‘Legal Protection for Victims of Gender Based Violence: Laws Do Not Yet Deliver Justice'

On 12 December 2013 the Judicial System Monitoring Programme (JSMP) launched a thematic report entitled ‘The Law Against Domestic Violence: Obstacles implementation three years on' . This report was aimed at reviewing the implementation of the Law Against Domestic Violence in Timor-Leste during the last three years, specifically relating to indictments, sentences and execution of sentences in cases involving domestic violence • Ongoing language barriers for Tetum speakers in the Timor Leste

justice system• Prosecutors incorrectly charging accused with offences carrying

lighter penalties• Courts ordering suspended sentences and fines where terms of

imprisonment would be more appropriate• The way cases involving domestic violence were prosecuted often

did not reflect the nature and seriousness of the crimes that were committed.

• Powers to order compensation to the victim not being used• Failure to make use of protection orders removing perpetrators

from the family home2014 report due soon.

JSMP recommendations - prosecutors 

– The Public Prosecution Service should develop legal guidelines on charging in domestic violence cases.

– The use of weapons should always be considered an aggravating factor

– The Public Prosecution Service should always conduct a risk-assessment in all domestic violence cases in order to determine whether a protection order under article 37 of the LADV is required to protect the victim during the investigation and trial process. The public prosecutor should at the same time apply for a court order requiring the defendant to provide provisional alimony under article 32 of the LADV, if the victim requires financial support.

 

JSMP recommendations - courts: 

– Courts should develop sentencing guidelines – The courts should make an order on civil

compensation for the victim in all domestic violence cases & prioritised over the issuing of a fine.

JSMP recommendations - Government: 

– The government should allocate sufficient resources to the Public Prosecution Service and the Timor-Leste National Police (Polísia Nasionál Timor-Leste) (PNTL) to ensure that all court sentences in domestic violence cases are effectively executed and monitored.

– The government should give funding to agencies and NGOs to provide intervention programmes to perpetrators

– The government should establish a social reintegration service to monitor convicted persons during the term of the suspension of a prison sentence and facilitate community service orders and participation in intervention programmes

JSMP's Overview of the Justice Sector (OJS) 2013 (http://jsmp.tl/wp-content/uploads/2012/05/Final-draft-of-OJS-2013-28-April-2014.pdf

JSMP's VSS unit has now become an independent organisation called ALFeLa (Asisténsia Legál ba Feto no Labarik – Women and Children’s Legal Aid). There's background information about how this came about on their website: http://www.alfela.tl.

Inter-familial abuse/incest: JSMP's report 'Incest in Timor-Leste: An Unrecognised Crime' (http://jsmp.tl/wp-content/uploads/2012/05/Incest-in-Timor-Leste-August-2012.pdf). 

In October 2014, TL Government Resolutions effectively removed 8 international judges in the context of a corruption investigation against politicians and others. JSMP’s concerns have been indicated as follows:

– Loss of confidence in the system – Pressure on remaining judges – Damage to public perception of judicial

independence – Loss of engagement with the justice system – An impact on the independence of judiciary

and other affected bodies – Loss of confidence in the ability of these

institutions to operate independently and effectively.

 JSMP press release for Baucau District Court dated 2 December 2014 noted the impact of the Resolutions on the progress of trials at all of the courts including the adjourning of a trial of aggravated rape (incest) because the court had not allocated this case to a new judge after the international judge who was previously handling the case had to leave.

ADAT V RESTORATIVE JUSTICESENTENCING ISSUES

LADV V CONSTITUTIONAL PROTECTION

Timor Leste was leading the way in an holistic legislative approach to combatting domestic violence. The people are being let down by poor implementation and the interference with the judicial process. The risk is a return to adat rather than progress to restoration. Government commitment to tackling domestic violence could be demonstrated by funding, training and engagement with Istanbul Convention mechanisms.