Saturday, 19 May 2012

Extradition from Indonesia to East Timor and the Serious Crimes Processin East Timor (1999 – 2005)

2006 ETLJ 2 Extradition from Indonesia to East Timor and the Serious Crimes Process in East Timor (1999 – 2005) Dr Anton Girginov Ph D [1]

1. The extradition from Indonesia of indictees of serious crimes committed in East Timor has been the main problem of the serious crimes process ever since its start in 1999. Indonesia refused to consider requests for their arrest and extradition to East Timor, as they were its nationals (e.g. Eurico Guterres, General Wiranto), and was often blamed for unjustified lack of co-operation.[2]

It is noteworthy, however, that such blames (correct or not) do not proceed from the legal provisions which are applicable to possible extradition relations between East Timor and Indonesia. On the contrary, the legal provisions that govern extradition from Indonesia to East Timor (Active Extradition), in particular, might actually substantiate some criticism of East Timor and its lawmakers.

2. East Timor and Indonesia are two neighboring civil law countries.[3] Moreover, under Section 165 (Previous Law) of the East Timorese Constitution in conjunction with S. 3.1 of UNTAET Regulation No. 1999/1, the Indonesian Law on Extradition of 1979 [ILE] is the law, which governs extradition in East Timor as well. Pursuant to Article 2 ILE, the two countries can extradite not only under an international treaty but also under the conditions of reciprocity as well.

However, due to the East Timorese Constitution, the extradition laws of East Timor and Indonesia are not fully compatible now. By introducing two innovations, this Constitution unilaterally hindered the extradition relations between the two countries. Both innovations are in its Section 35 (Extradition and Expulsion), Paragraph 4, which reads: “An East Timorese national shall not be expelled or expatriated from the national territory.” If this means that s/he shall not be expelled or extradited (which is most likely because expulsion and extradition are the subject of the whole Section), then the said Section includes an absolute Constitutional prohibition to extradite East Timorese nationals.

3. Thus, the first innovation of the Constitution concerns the possibility to extradite own nationals to the country where the crime was committed. ILE provides for such a possibility; pursuant to its Article 7 (2) an own national may be extradited for trial to the country where the crime was committed, “if in view of the circumstances it would be better if the person concerned be tried at the place of commission of the crime”.

However, Section 35 (4) of the Constitution does not prescribe any such exception to the prohibition to extradite own nationals, including to the country where the crime was committed. Hence, if East Timor needs to obtain extradition from Indonesia of an Indonesian national, the East Timorese authorities will not be in the position to promise reciprocity, which would inevitably be required. Virtually, the extradition would never be granted because of the East Timorese law.

4. The second innovation of the Constitution concerns the legal power of the prohibition to extradite own nationals. In contrast to Indonesia where this prohibition is a matter of ordinary law [Article 7 (1) ILE], in East Timor it is a Constitutional prohibition. It follows that under East Timorese law the said prohibition may not be derogated by any international treaty. Hence, unlike Indonesia, East Timor cannot sign a treaty, under which the requested party may extradite its nationals, in particular, for crimes committed in the territory of the other (requesting) party.

5. Lastly, another innovation of the East Timorese Constitution deserves elaboration. Under Section 35.3 of the Constitution, “extradition in respect of offences punishable, under the law of the requesting State by death penalty …, shall not be permitted”. This Constitutional provision does not reproduce in any way the exception in Article 13 ILE that extradition may be granted, if “the requesting country sufficiently guarantees that the death penalty will not be carried out”.[4]

The problem is that countries with the death penalty in their criminal laws usually have reliable legal mechanisms to convert it to a less severe punishment in case they obtain extradition.[5] Thus, on the one hand, it does not make any sense to refuse extradition to such a country where virtually, the extraditee would not be in danger of any death penalty. On the other hand, if there is no such a danger for extraditees in respect of their gravest crimes (actually, they are the crimes, which merit death penalty) but East Timor still refuses extradition without any reasonable justification, this country is likely to become an attractive destination for most serious offenders.

1. Ph D in Criminal Law. Former UN Prosecutor with the Serious Crimes Unit, currently, Head International Trainer with the UNMIK’s Department of Justice – the Kosovo Special Prosecutor’s Office, Pristina.

2.  “The Commission of Experts finds that the lack of access to evidence and suspects in Indonesia is a critical challenge impeding the progress of the serious crimes processes in Timor-Leste. It notes that at present, there is no extradition agreement between Indonesia and Timor-Leste or any other form of effective mutual legal assistance framework to enable the arrest and transfer of indictees now at large. [Summary of the report to the Secretary-General of the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (then East Timor) in 1999].

3. Generally, such countries do not extradite own nationals. There are two alternative national approaches on the issue of nationality. While traditionally it is common law countries that do not restrict the extradition of their nationals (in part on the grounds that they are not always prepared to exercise jurisdiction over such nationals for offences committed outside their respective territories), other countries of the civil law tradition have adopted a different view by asserting extraterritorial jurisdiction over nationals, so if nationals are not to be extradited (because of constitutional or policy prohibitions) they may be tried for extraterritorial offences.

4. Also, under Section 12 (Death Penalty) of the 2004 Model Law on Extradition {UNODC}, “If the offence for which extradition is requested carries the death penalty under the law of the requesting State and is not punishable under the law of [country adopting the law], extradition [shall not be granted] [may be refused], unless the competent authorities of the requesting State give assurances considered sufficient that the death penalty will not be imposed or, if imposed, will not be carried out“.

5. For example, Article 38 (3) of the Bulgarian Criminal Code [repealed after the abolition of the capital punishment there in 1998] postulated that “capital punishment shall not be imposed, and if already imposed shall not be put into effect with regard to a person extradited by a foreign country under such condition. The capital punishment stipulated in law or imposed shall be replaced by 20 years imprisonment.”

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