East Timor

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Constitution of East Timor ^[1]

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Introduction

Quick summary of the context¹

Timor-Leste, also known as East Timor, is a tropical, mountainous, country located in Southeastern Asia at the eastern end of the Indonesian archipelago, including the eastern half of Timor, the Oecussi, Pulau Atauro, and Pulau Jaco. The population of 1,506,909 people largely live in the western region near Dili. was founded in 1999 after a referendum of independence from Indonesia. In response, anti-independence Timorese organized, and with backing from the Indonesian military, killed 1,400 Timorese and displaced nearly 500,000. In 2002, Timor-Leste was internationally recognized as an independent state. Australia and the UN stepped in to facilitate peacekeeping operations for the 2007 parliamentary elections. After a 2008 attempted coup, Timor-Leste has made progress toward the development of democratic institutions and fair and free elections. Today, the primary ethnic groups in East Timor are Austronesian (Malayo-Polynesian), Melanesian-Papuan, and a small Chinese minority. The primary languages include Teturn Prasa, Mambai, Makasai, Tetun Terik, Baikenu, Kemak, Bunak, Tokodede, Fataluku, Waima'a, Galoli, Naueti, Idate, and Midiki. The majority of people (97.6%) are Roman Catholic with a small minority of Protestants (2%) and Muslims (2%). Timor-Leste is one of the poorest economies in the world, the country mainly relies on energy resources from the Timor Sea.

Type of system

Timor-Leste has a civil law system based on the Portuguese model.2

The legal aid situation in the country

State sponsored legal aid

Timor-Leste established a legal aid system in 2001 with United Nations Peacekeeping that includes both public and private legal aid providers.3 The legal aid service is composed of Legal Aid Offices in various districts in East Timor and the Office of the Public Defender providing assistance to those who cannot afford to retain a private lawyer.4

Existing NGOs providing pro bono legal aid

Organizations including JU,S Juridico Social, the International Center for Transitional Justice (ICTJ), and DLA Piper offer pro bono legal services in East Timor.

Number of lawyers

There are approximately more than one hud lawyers and more than 30 judges in East Timor.5

Sources of defendant's rights?

National sources of defendant's rights

National sources of defendant's rights in East Timor include the Constitution of the Democratic Republic of Timor-Leste (2002), the Penal Code (2009), and Criminal Procedure Code (2005).

International sources of defendant's rights

East Timor has ratified key international treaties to secure defendant's rights including the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture (CAT), the Convention on the Rights of the Child (CRC), and the Universal Declaration of Human Rights (UDHR).

Rights of the accused

Right against unlawful arrests, searches, and seizures

According to Article 37 of the Constitution, a person's home can only be searched if there is a search warrant and entry into a person's home at night against their will is expressly prohibited dauntless in case of serious threat to life or physical integrity of someone inside. Article 56 of the Criminal Procedure Code states that police can conduct checks and seizures without an order in the case of flagrante delicto in connection with a criminal offense that carries imprisonment or where there is strong suspicion that items relating to a criminal offense are being hidden and they may pose a danger.7

Right against unlawful detention

Article 32 of the Constitution outlaws the imprisonment, security measure, or detention of someone for an unlimited or indefinite duration. According to the Criminal Procedure Code, a person suspected of a crime can only be held in detention for 12 hours for identification purposes.

Right not to be tortured or ill-treated

According to Article 29 of the Constitution, no one shall be subject to torture or cruel, inhuman, or degrading treatment.

Right to medical care

Pursuant to Article 57 of the Constitution, everyone has the right to health and medical care, and has the responsibility to promote and protect their health."

Right to be informed of charges

Article 30 states that any individual whose freedom is being deprived of has the right to immediately be informed of their charges and ability to contact a lawyer. 12 Further, people can only be arrested or detained under the terms clearly provided for by the law. 13 Whenever someone is detained or arrested, pursuant to Article 30, the case should be presented for consideration by a competent judge within the legal time frame. 14

Right to presumption of innocence

According to Article 24 of the Constitution, everyone charged with an offense is presumed innocent until proven guilty. 15

Right against self-incrimination

Article 60 of the Criminal Procedure Code states that the defendant enjoys the right to remain silent, to make or not make statements at any stage of the investigation or trial with few exceptions. 16

Right to counsel and effective assistance

Pursuant to Article 60 of the Criminal Procedure Code, defendants have the right to a defender appointed by the court. 17

Right to a present a defense

Article 26 of the Constitution permits all people access to the courts for the defense of their legally protected rights and interests. 18

Right to due process

According to Article 34 of the Constitution, every individual is guaranteed the right of a hearing and defense in criminal proceedings. 19

Right to equal protection of the laws

Article 16 states that all citizens are equal before the law. 20

Right to bail

According to Article 187 of the Criminal Procedure Code, defendants may be granted bail if the criminal offense imputed to them is punishable with imprisonment. 21 The amount of the bail depends on the socioeconomic status of the defendant, damage caused, gravity of criminal conduct, and objectives of a preventative nature being pursued. 22 Bail is broken through the issuance of a court order where the defendant failed to comply with the procedural obligations of their bail 23

Right against ex post facto prosecution

According to Article 31, no one can be tried and convicted for an act that did not qualify as an offense the moment it was committed.24

Right against double jeopardy

Article 31 of the Constitution stipulates that a person can not be tried and convicted for the same criminal offense more than once.25

Right to a fair trial

Generally

Article 247 states that hearings shall have a public character, under the penalty of irreparable nullity, and Article 248 establishes that, except as otherwise stated by the law, the proceedings and the production of proofs at the hearing are conducted orally before the court. 26 Article 252 provides that the court shall order the production of every evidence essential for the disclosure of the truth and for a proper adjudication of the case, while observing the adversarial nature of the proceedings. 27

Right to a trial by jury

The Criminal Procedure Code does not guarantee the right to trial by jury.

Right to a speedy trial

According to Article 346 of the Criminal Procedure Code, the trial hearing shall be initiated within seventy-two hours following the defendant's arrest in cases of in flagrante delicto. 28 Article 250 states that a hearing proceeds without interruption, except in the case of adjournment or interruption provided by law, and Article 250 provides that any proofs produced lose validity where the resumption of the hearing is not feasible within 30 days. 29 Article 60 states that the defendant has the right, when under arrest, to be presented to the judge for the first questioning within seventy-two hours from the arrest. 30

Right to an impartial judge

According to Article 34, judges must be independent, impartial, and subject only to the Constitution and the law. 31

Right to language interpretation

Article 83 of the Criminal Procedure Code states that an interpreter is compulsory appointed when a person does not know or master the official language of East Timor. This also applied to translating documents and people who are hearing, speaking, or writing-impaired. 32

Right to habeas corpus

Article 33 of the Constitution states that any person who is deprived of freedom has the right to apply for habeas corpus. 33 An application should be made in accordance with the law, so by the detainee or any other person in the exercise of their civil rights.34 It is mandated that the court rule on the application within 8 days as a hearing where both parties are present. 35

Capital punishment

Article 29, the "Right to Life" section of the Constitution, outlaws the death penalty. 36

Right to appeal

Article 152 of the Constitution allows the Supreme Court to hear appeals against decisions (1) refusing to apply a legal rule on the grounds of unconstitutionality and (2) those applying a legal rule the constitutionality of which was challenged during proceedings.37

Rights of counsel

Right to provide representation

According to Article 34 of the Constitution, an accused person has the right to select, and be assisted by a lawyer at all states of the proceedings, and the state determines when having a lawyer is obligatory in the process. 38

Right of access to the client

Article 68 of the Criminal Procedure Code states that assistance by a defender is compulsory in the first questioning of a defendant held under arrest or detention, from the time the indictment is presented until such a time as a decision is rendered final, in filing claims, and in such other cases as stated in the law. 39

Right to information

Article 60 of the Criminal Procedure Code states that defendants have the right to provide evidence and request any action deemed necessary for their defense. 40

Right to confidential communication with the client

Pursuant to Article 60 of the Criminal Procedure Code, defendants have the right to freely communicate with the defender, even if under arrest or in detention. 41

Means of protecting or enforcing rights

Exclusionary rule

Pursuant to Article 34, 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 domicile, correspondence or other forms of communication. 42

Nullity of procedure

Article 102 establishes the principle of legality, that defects in procedural acts breaching any criminal procedure law provisions shall be considered null and void. 43 Article 93 of the Criminal Procedure Code states that a notice is null and void where the notice is incomplete, fails to indicate the case, court, person, or any other necessary element, a public notice is used, or the person notified fails to sign. 44 If the notice is public it must be posted in public places or published. 45

Motions

Article 206 outlines the procedural steps to handling an incident. A motion regarding unlawful arrest or detention is reviewed within 24 hours by the Supreme Court of Justice. 46 Upon receiving the motion, the President of the Supreme Court shall order their opinion to the Public Prosecution Service within 48 hours and appoint a defender for the person under arrest or detention if the latter has not retained counsel.47 A decision shall be pronounced on the motion within 5 days and it is incumbent upon the President of the Supreme Court of Justice to hand down the decision. 48

Contempt

According to Article 245 of the Criminal Procedure Code, the conduct and order of business of a hearing are the responsibility of the judge, meaning they may adopt measures deemed appropriate for a smooth hearing. 49

Civil actions

According to Article 28 of the Constitution, all citizens have the right to disobey and resist illegal orders or those that violate fundamental rights. 5º Article 40 ensures the freedom of expression and information while Article 41 ensures freedom of the press and means of social communication for the expression of different opinions. Article 42 enshrines the freedom of peaceful and unarmed assembly and manifestation.52 Article 43 ensures the freedom of association. Article 44 ensures the freedom of movement, or immigration. Article 45 ensures the freedom of conscience, religion, and worship. 54 Article 46 stipulates that every person has the right to participate in the political life and in public affairs of the county.55 Article 47 gives every person over the age of 17 the right to vote and to be elected.56 Article 48 gives every citizen the right to petition to protect their fundamental rights. 57

Pre-trial procedures

Police procedures

Complaint/information

Article 147 of the Constitution states that the police force is non-partisan, prevents crime with due respect for human rights, and the law is the source of their rules and regulations. 58

Arrest, search, and seizure laws

Stops and frisks

According to Article 53 of the Criminal Procedure Code, police officers may request the identification of any person where there is suspicion of a criminal offense. 59 According to Article 172, except as otherwise stated in the law, the seizure of an item relating to a criminal offense or evidence must be authorized by a judge. 60 If there's a case of urgency or danger posed by delay of seizure, police may carry out seizure without authorization of a judge. 61

Arrests

In the case of flagrante delicto, or a crime that is in the process of being or was just committed, any police may carry out an arrest. 62 In any other case, an arrest can only be carried out with the permission of a warrant. In order for an arrest or detention to be unlawful, it must be carried out by an invalid entity, motivated by a fact in which regard arrest or detention is not permitted by law, expiry of the time limits for the duration of the first judicial questioning, or the person is kept on premises other than the ones permitted by the law. 64

Pre-trial detention

The imposition of pre-trial detention depends on strong indications that a crime punishable with imprisonment exceeding three years has been committed and inadequacy or insufficiency of any other restrictive measure provided in the law. 65 Pre-trial detention must be preceded or allowed by hearing the defendant. 66 Pre-trial detention may not exceed one year without the presentation of an indictment, two years without a first-instance conviction, or three years without a final conviction except that an appeal is filed over. 67

Searches

According to Article 37 of the Constitution, a person's home can only be searched if there is a search warrant and entry into a person's home at night against their will is expressly prohibited dauntless in case of serious threat to life or physical integrity of someone inside. 68 Article 168 of the Criminal Procedure Code states that body searches may be carried out where there is a need to seize any items related to a crime, and when done in a reserved/ private places, the items must be seized and any person is to be arrested. 69 In terms of formalities, the search must be authorized by warrant, the Public Prosecution Service can appoint persons for search, the dignity and decency of the person shall be respected, the person must sign a report required during the search, duplicates ought to be provided to the search, and in case of danger police may conduct a search without a warrant. 7º However, the abovementioned limits are increased by six months if the case is complex and if the defendant needs to stay in prison for another case. 71

Enforcing the rules (exclusionary rule, nullity and other procedures to protect against illegal police procedures)

According to Article 62 of the Criminal Procedure Code, methods and techniques which might restrict or impair the freedom of will or of decision, or the ability to recall and reason, shall not be employed, even with the consent of the defendant. 72 Article 59 states that omission or breach of the provisions on declaring a person a defendant implies that the statements made by such person in such capacity shall not be used as evidence against him or her. 73 Article 56 provides that where a search, check or seizure is conducted without prior judicial authorization due to urgency, the competent judicial authority shall assess the validity of the act. 74 Article 110 prohibits proof obtained through torture or duress, as well as by means that impair free will, memory, or reasoning capacity, and Article 110 extends this prohibition regardless of the origin of the evidence. 75 Article 111 prohibits proof obtained through intrusion into private life, domicile, mail, or telecommunications, except as permitted by law or with express consent. 76 Article 112 declares that proof obtained in breach of these provisions is invalid from a procedural standpoint, and Article 112 requires the removal of such prohibited proof from the records under penalty of irreparable nullity.7" Article 108(1) states that only the judge or the public prosecutor may declare the nullity or irregularity of a procedural act, and Article 108(3) provides that such declaration results not only in the invalidity of the defective act but also of any subsequent acts dependent on it. 78

Lineups and other identification procedures

Lineups

Article 163 of the Criminal Procedure Code suggests that if a person fails to identify a person by describing their characteristics, physical identification, likely a lineup, should be done.79 Should there be more than one person identified, the procedure of physical identification and using them as a means of evidence will be applied to them. If identification in a lineup cannot be done at a hearing due to intimidation or harassment, it will be done at another time without the identifier being seen by the suspect.81 According to Article 170, searches of inhabited houses/ outbuildings can only be carried out between 6:00pm and 8:00pm.82 Consent is also relevant to the carrying out of the search.83

Other identification procedures

According to Article 53 of the Criminal Procedure Code, a suspect may be subject to tests to establish full identification such as fingerprint, picture-taking, or body check.84 Article 61 states that defendants must provide identification, criminal background, and proof of identity and residence.85

Interrogation

Before formal charge in court

According to Article 62 of the Criminal Procedure Code, questioning of a defendant must be conducted without methods or techniques that impair freedom of will, decision-making, or recall, even with the defendant’s consent.86 The process begins with a reading and explanation of the defendant’s rights and duties, followed by clear communication of the acts imputed to them, and advising that silence shall not be detrimental.87 Article 63 provides that the judge has exclusive competence to conduct the first questioning of an arrested defendant within seventy-two hours of arrest, in the presence of the public prosecutor, defender, interpreter, and a record keeper.88 Article 64 states that further questioning during the enquiry is conducted by the competent authority for that procedural phase or a delegated person.89

After defendant is formally charged

According to Article 117, statements by the defendant are admissible only if, after being advised of the right to remain silent, the defendant voluntarily chooses to speak.90 The defendant may refuse to answer any questions without justification, and Articles 62 to 64 apply to questioning at all procedural stages.91 Article 268 states that at the trial hearing, questioning begins with confirming the defendant’s identity and proceeds under the same safeguards outlined in Article 62.92 Article 265 places the defendant’s statement as the first step in the order of producing proof at trial, while Article 267 limits the reading of prior statements from the enquiry phase to cases of contradiction or clarification.93

Enforcing the rules (procedures to protect against illegal interrogation)

According to Article 60, defendants have the right to be informed of the charges, decide freely whether to make statements, and to be assisted by counsel.94 Article 68 makes legal assistance compulsory during the first questioning of a detained defendant and at other key stages.95 Article 59 states that omission or breach of procedures for declaring someone a defendant invalidates their statements as evidence.96 Article 110 absolutely prohibits evidence obtained through torture, coercion, or methods impairing free will, decision-making, or memory, and Article 112 renders such evidence procedurally invalid and subject to removal from the record.97 Article 267 affirms that statements obtained in breach of procedural rules are invalid as proof.98

Court procedures

Pre-trial

Initial court appearance

Detention is carried out for the purpose of within 73 hours, bringing the arrested under detention to court in an expedited proceeding or presenting them for their first judicial questioning or ensuring that person is immediately brought before judicial authority.99

Charging instrument

According to Article 236, the Public Prosecution Service shall issue a writ of indictment within 15 days when sufficient evidence has been gathered; the writ, under the penalty of nullity, shall contain identification of the defendant, the account of the facts, applicable provisions, and date/signature.100

Preliminary hearing

Before trial, the court assesses the indictment and sets a trial date, according to Article 239, once the records are received the judge shall assess the jurisdiction, legitimacy, nullities and other exceptions or any prior issues, may reject a blatantly groundless indictment, or admit the indictment and set a trial date.101 Article 240 specifies what the order admitting the indictment and setting a trial date must contain (appointment of defender if needed, measures, criminal record request) and that it is notified with a copy of the indictment.102

Pre-trial motions

According to Article 239, once the records are received the judge shall assess the jurisdiction, legitimacy, nullities and other exceptions or any prior issues that are likely to impede an immediate assessment of the grounds of action.103

Discovery

According to Article 77, the public prosecutor, the suspect, the defendant and the aggrieved person may have access to the records and obtain a certificate or copy therefrom, subject to authorization rules in paragraphs.104

Trial

Nature of the trial

According to Article 245 of the Criminal Procedure Code, the conduct of the hearing and the order of business are the responsibility of the judge, who shall adopt such measures as deemed appropriate and necessary for the smooth running of the hearing, provided they are not inconsistent with any expressed law.105 Article 246 states that the court shall ensure the observance of the adversarial nature of the proceeding, namely before a decision on incidental matters is made and in relation to the presentation or examination of any proof at the hearing, under the penalty of nullity.106 Article 247 provides that hearings shall have a public character, under the penalty of irreparable nullity, and Article 248 establishes that, except as otherwise stated by the law, the proceedings and the production of proofs at the hearing are conducted orally before the court.107

Defendant

According to Article 253 of the Criminal Procedure Code, the presence of the defendant at the hearing is compulsory, except as otherwise stated in the law, and the judge shall take the appropriate and necessary action to prevent the defendant from leaving before the hearing concludes.108 Once questioned about identification, the defendant may be removed from the courtroom for repeated breaches of conduct or when their presence may contribute to inhibiting or intimidating a person who is to make statements.109 Even if removed, the defendant must hear the reading of the sentence.110

Lawyers

Article 249 specifies that the minutes of the hearing must include the identification of the defendant and his or her counsel or defender, along with other procedural participants.111

Expert witnesses

Expert witnesses (religious ministers, lawyers, medical doctors, journalists, and other members of credit institutions) must maintain professional secrecy and may refuse to give a deposition on facts covered by that secrecy.112 The court is allowed to be accompanied by an expert witness per Article 146 of the Criminal Procedure Code, in order to explain the inspection and interpret the facts.113 Experts are appointed in the decision ordering the inspection and shall attend the trial.114 Section VIII describes the procedure for designating experts and the object.115

Judges

According to Article 108 of the Criminal Procedure Code, only the judge or the public prosecutor may declare the nullity or irregularity of a procedural act, and the judge may order such acts to be performed again where necessary.116 Articles 239 assign the judge the responsibility to receive the indictment, verify jurisdiction, rule on nullities or exceptions, and issue the order admitting the indictment and setting the trial date.117 Under Article 250, the judge determines adjournments for rest or refreshment, and may interrupt the hearing if indispensable participants are absent, essential evidence is unavailable, or incidental matters arise.118 Article 253 further requires the judge to prevent the defendant from leaving before the hearing ends and allows the judge to remove the defendant for repeated breaches of conduct or for intimidating witnesses.119 Article 249 requires that hearing minutes include the name and signature of the judge, confirming judicial oversight of the record.120 Finally, Article 278 establishes that the sentence is read at the hearing by the presiding judge after deliberation and voting, and Article 280 requires the judge to explain the sentence to the defendant orally in terms the defendant can understand.121

Victims

According to Article 59 of the Criminal Procedure Code, victims are recognized through the right of the injured party to file a complaint.122 Article 215 further establishes that the right to complain lapses six months from the date of the crime, if the victim dies, or from the date the victim becomes legally competent to.123

Sentencing

Article 281 establishes that once deliberations are complete, the judge drafts the sentence in line with the prevailing opinion. The sentence must be signed by the judge and assistant judges, who may issue separate opinions. It must then be publicly read and explained in court within fifteen days, with the reading serving as official notification to those present.124

Appeals

The Code establishes the principle of maximum admissibility of appeals in Article 287, allowing appeals against court orders, sentences, and decisions unless explicitly prohibited by law, and permitting challenges on both fact and law.125 Article 288 specifies exceptions, such as routine orders, discretionary decisions, minor civil compensation cases, and other situations defined by law.126 Article 289 identifies those eligible to appeal: the public prosecutor, the defendant, and any person fined or whose rights are affected.127 Article 290 provides that an appeal generally covers the entire decision, though in cases of co-defendants it also extends to them unless strictly personal grounds apply.128 Appeals proceed in degrees: Article 291 states that district court decisions go to the Supreme Court of Justice, while decisions from the Supreme Court’s criminal section are reviewed by its full bench, with both fact and law subject to review.129 The scope of appeal may be limited under Article 292 to distinct parts of a decision, such as separating criminal from civil issues or culpability from penalty, but only if they can be adjudicated independently.130 Article 293 protects defendants by prohibiting reformatio in pejus, meaning penalties cannot be increased when only the defendant appeals.131 Articles 294 and 295 allow for waiving or withdrawing an appeal, and provide that certain appeals, particularly those closing a case, must be remitted to the higher court.132 Article 296 lists appeals that must be remitted immediately, such as challenges to restrictive measures, disqualification rulings, or rejected indictments, while Article 297 requires other appeals to be remitted together with the appeal of the final decision.133 Finally, Article 298 explains the effects of appeals: an appeal against a conviction suspends the decision, while others may suspend enforcement if conditions (such as deposits) are met, but most are merely devolutive, passing the case for review without halting enforcement.134

Right to counsel

Pursuant to Article 60 of the Criminal Procedure Code, defendants have the right to a defender appointed by the court.135

Ineffective assistance of counsel

The Criminal Procedure Code does not explicitly mention “ineffective assistance of counsel.” However, Articles 301 provides that appeals may be based on errors of fact or law as well as nullity of procedure, which offers grounds to challenge inadequate representation within the broader framework of procedural errors.136

Collateral remedies (habeas etc…)

Article 103 of the Criminal Procedure Code describes a variety of irreparable nullities while Article 104 describes reparable nullities.137 Immunities and prerogatives established by the law in respect of the duty to witness and the manner and place where a deposition is to be given are applicable in relation to a criminal proceeding.138 Article 205 of the Criminal Procedure Code states that any person who finds themself under unlawful arrest or detention may request the Supreme Court of Justice to grant them a writ of habeas corpus.139

Rights in prison

Right to humane conditions of confinement

There are no references to humane conditions of confinement in the Criminal Procedure Code.

Immigrant’s rights in detention

Pre-trial detention may be imposed on someone who unlawfully entered or remains on national territory or against whom an extradition or expulsion process has been initiated.140

Right to medical care in prison

Although there is no explicit mention to the right of medical care in prison, pursuant to Article 57 of the Constitution, everyone has the right to health and medical care, and has the responsibility to promote and protect their health.141

Right to mental health care

Article 32 of the Constitution states that in case of danger a result of mental illness, security measures may be successively extended by judicial decision.142

Restriction of rights

Although the code provides for detention order, preventative detention, and security measures, it does not directly list which rights may be restricted in prison.

Rights of special populations

Women

There are no references to women in the Criminal Procedure Code.

LGBTQ+ prisoners

There are no references to LGBTQ+ prisoners in the Criminal Procedure Code.

Mentally ill prisoners

According to Article 194 of the Criminal Procedure Code, a person with a mental health disorder, where requirements for pre-trial are met and as long as the disorder persists, be preventatively admitted to a psychiatric hospital or other appropriate establishment.143

Juveniles

According to Article 18 of the Constitution, children are entitled to special protections by the family, community, and state, particularly against abandonment, discrimination, violence, oppression, sexual abuse, and exploitation.144 The Constitution clarifies that this applied to rights enshrined in law and international conventions and children born out of wedlock.145 The Constitution also states that youth initiatives toward national unity, reconstruction, defense, and development will be promoted by the state along with education, health, and vocational training for the youth.146

Footnotes

↑ https://timor-leste.gov.tl/wp-content/uploads/2010/03/Constitution_RDTL_ENG.pdf

[1] ttps://timor-leste.gov.tl/wp-content/uploads/2010/03/Constitution_RDTL_ENG.pdf

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