Human Rights Law

Nina Sarah P. Pineda, JD 2-3

March 8, 2017

Mariano Pimentel, et. al vs. the Philippines

FACTS:
The authors of the communication are Mariano Pimentel, Ruben Resus
and Hilda Narcisco, all Philippine nationals. They claim to be victims of
violations by the Republic of the Philippines of their rights under article 2,
paragraph 3 (a), of the International Covenant on Civil and Political Rights.
The communication also raises issues under article 14, paragraph 1, of the
Covenant. The authors are represented by counsel; Mr. Robert Swift of
Philadelphia, Pennsylvania.

The authors obtained a final judgment in the United States for

compensation against the estate of the late Ferdinand E. Marcos for having
been subjected to torture during the regime of President Marcos. In 1972, the
first author was arrested by order of President Marcos two weeks after the
declaration of martial law. He was detained for a total of four years without
ever being charged. Upon return, he was kidnapped by soldiers, who beat
him with rifles, broke his teeth, his arm and leg, and dislocated his ribs. He
was buried up to his neck but was subsequently rescued. In 1974, the second
authors son was arrested by order of President Marcos and taken into
military custody. He was tortured during interrogation and kept in detention,
without ever being charged and disappeared in 1977. In 1983, the third
author was also arrested by order of President Marcos. She was tortured and
gang-raped during her interrogation. She was never charged with nor
convicted of any offence.

In 1986, the authors brought an action against the Marcos estate. In

1995, a jury at the United States District Court in Hawaii awarded a total of
US$ 1,964,005,859.90 to the victims (or their heirs) of torture, summary
execution and disappearance. In 1997 a complaint was filed against the
Marcos estate, in the Regional Trial Court of Makati City, with a view to
obtaining enforcement of the United States judgment. The defendants
counter filed a motion to dismiss, claiming that the filing fee was
insufficiently paid. For this reason, the Regional Trial Court dismissed the
complaint. The authors filed a motion for reconsideration before the same
Court, which was denied. The five class members filed a motion with the
Philippine Supreme Court, on their own behalf and on behalf of the class,
seeking a determination that the filing fee was PHP 400 rather than PHP 472
million. By the time of submission of the communication to the Committee,
the Supreme Court had not acted on this motion, despite a motion for early
resolution filed by the petitioners. Since then, the same Court entered
judgement for the State party against the Marcos Estate in a forfeiture action
and directed enforcement of that judgement for over US$ 650 million, even
though that appeal was filed over two years after the authors own petition.
The authors claim that their proceedings in the Philippines on the
enforcement of the US judgement have been unreasonably prolonged and
that the exorbitant filing fee amounts to a de facto denial of their right to an
effective remedy to obtain compensation for their injuries, under article 2 of
the Covenant. They argue that they are not required to exhaust domestic
remedies, as the proceedings before the Philippine courts have been
unreasonably prolonged.

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 Human Rights Law
Nina Sarah P. Pineda, JD 2-3
March 8, 2017

STATE PARTYS DEFENCE:

The State party submitted that the communication is inadmissible for

failure to exhaust domestic remedies. It states that the Supreme Court
handed down its decision affirming the authors claim that they should pay a
filing fee of PHP 410 rather than PHP 472 million with respect to their
complaint to enforce the judgment of the United States District Court in
Hawaii. The State party denies that the authors were not afforded an
effective remedy. The State party added that, following the Supreme Court
decision on the filing fee, the case was reinstated before the trial court.

VIEW OF THE COMMITTEE AND RIGHT(S) VIOLATED:

First, the Committee notes that the claim relating to the enforcement
of the United States District Court of Hawaiis judgement is currently pending
before the State partys Regional Trial Court. For this reason, the Committee
cannot conclude that the proceedings have been so unreasonably prolonged
that the delay would exempt the authors from exhausting them. Accordingly,
the Committee finds that this claim is inadmissible.

Second, the Committee observes that since the authors brought their
action before the Regional Trial Court in 1997, the same Court and the
Supreme Court considered the issue of the required filing fee arising from the
authors claim on three subsequent occasions and over a period of eight
years before reaching a conclusion in favour of the authors. The Committee
considers that the length of time taken to resolve this issue was
unreasonable, resulting in a violation of the authors rights under article 14,
paragraph 1, read in conjunction with article 2, paragraph 3, of the
Covenant. The Human Rights Committee is of the view that the authors are
entitled, under article 2, paragraph 3(a), of the Covenant, to an effective
remedy. The State party is under an obligation to ensure an adequate
remedy to the authors including, compensation and a prompt resolution of
their case on the enforcement of the US judgement in the State party.

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 Human Rights Law
Nina Sarah P. Pineda, JD 2-3
March 8, 2017

Messrs. Piandong, Morallos and Bulan vs the Philippines

FACTS:

The authors of the communication are Alexander Padilla and Ricardo III
Sunga. They present the communication as legal counsel to Mr. Dante
Piandiong, Mr. Jesus Morallos and Mr. Archie Bulan, whom they claim are
victims of violations of articles 6, 7 and 14 of the International Covenant on
Civil and Political Rights by the Philippines.

Messrs Piandiong and Morallos were arrested in 1994, on suspicion of

having participated in the robbery of passengers of a jeepney during which
one of the passengers, a policeman, was killed. After arriving in the police
station, Messrs Piandiong and Morallos were hit in the stomach in order to
make them confess, but they refused. During a line up, the eyewitnesses
failed to recognize them as the robbers. The police then placed them in a
room by themselves, and directed the eyewitnesses to point them out. No
counsel was present to assist the accused. During the trial, Messrs.
Piandiong, Morallos and Bulan testified under oath, but the judge chose to
disregard their testimony because of lack of independent corroboration.
Accused were thereafter convicted of robbery with homicide and sentenced
to death by the Regional Trial Court. Counsel complains that the death
sentence was wrongly imposed because the judge considered that an
aggravating circumstance existed, as the crime was committed by more than
three armed persons, but this was not proven beyond reasonable doubt.
Moreover, the judge should have taken into account the mitigating
circumstance of voluntary surrender since Messrs. Piandiong, Morallos and
Bulan came with the police without resisting. They added that the
testimonies of the eyewitnesses deserved no credence because the
eyewitnesses were close friends of the deceased and their description of the
perpetrators did not coincide with the way Messrs. Piandiong, Morallos and
Bulan actually looked. Counsel also states that the judge erred when he did
not give credence to the alibi defence and alleged that the death penalty
was unconstitutional and should not have been imposed for anything but the
most heinous crime. The Supreme Court denied the appeal, and confirmed
both conviction and sentence. Further motions for reconsideration were
denied. After the execution had been scheduled, the Office of the President
granted a three month reprieve of execution. No clemency was however
granted and on 15 June 1999, counsel presented a communication to the
Committee.

The Committee transmitted the communication to the State party with

a request to provide information and observations in respect of both
admissibility and merits of the claims and the State party was also requested
not to carry out the death sentence against Messrs. Piandiong, Morallos and

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 Human Rights Law
Nina Sarah P. Pineda, JD 2-3
March 8, 2017

Bulan while their case was under consideration by the Committee. On July
1999, the Committee was informed by counsel that a warrant for execution
had been issued. The Committee was further informed that the executions
would go ahead as scheduled despite the Committee's request since the
State party was of the opinion that Messrs. Piandiong, Morallos and Bulan
had received a fair trial. Counsel for Messrs. Piandiong, Morallos and Bulan
filed a petition with the Supreme Court seeking an injunction, which was
refused by the Court. Counsel also met personally with the Government's
Justice Secretary and asked him not to carry out the death sentence in view
of the Committee's request. In the afternoon of 8 July 1999, however, Messrs.
Piandiong, Morallos and Bulan were executed by lethal injection. The
Committee requested from the State party clarifications of the circumstances
surrounding the executions.

STATE PARTYS DEFENCE:

The State party explains that domestic remedies were exhausted with
the Supreme Court's decision, rejecting the supplemental motions for
reconsideration. According to the State party, in submitting themselves to
the President's power, the convicts conceded to the decision of the Supreme
Court. The State party argues that, having done so, it is highly inappropriate
that they would then go back to the Human Rights Committee for redress.

The State party refers to the Supreme Court's judgement which found
that the shooting of the police officer in the jeepney, the subsequent robbery
of the shot policeman, and finally the second shooting of him while he was
pleading to be brought to hospital, revealed brutality and mercilessness, and
called for the imposition of the death penalty.

With regard to the claim of torture, the State party notes that it was
not included in the grounds of appeal to the Supreme Court, and thus the
Supreme Court did not look into the issue. Concerning the claim of lack of
legal assistance, the State party notes that the accused had legal assistance
throughout the trial proceedings and the appeal.

With respect to the right to life, the State party notes that the Supreme
Court has ruled on the constitutionality of the death penalty as well as the
methods of execution and found them to be constitutional.

In respect to counsel's request to the Committee for interim measures

of protection as a matter of urgency, the State party notes that counsel
found no need to address the Committee during the year that his clients
were on death row after all domestic remedies had been exhausted. Even
after the President granted a 90 day reprieve, counsel waited until the end of
that period to present a communication to the Committee. The State party
argues that in doing so counsel makes a mockery of the Philippine justice
system and of the constitutional process.

VIEW OF THE COMMITTEE AND RIGHT(S) VIOLATED:

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 Human Rights Law
Nina Sarah P. Pineda, JD 2-3
March 8, 2017

The Committee notes that the State party has not raised any
objections to the admissibility of the communication. Accordingly declares
the communication admissible and proceeds without delay with the
consideration of the merits.

The Human Rights Committee is of the view that it cannot make a

finding of a violation of any of the articles of the International Covenant on
Civil and Political Rights.

The Committee states that a State party commits grave breaches of its
obligations under the Optional Protocol if it acts to prevent or frustrate
consideration by the Committee of a communication alleging a violation of
the Covenant, or to render examination by the Committee moot and the
expression of its Views nugatory and futile. In respect of the present
communication, the authors allege that the alleged victims were denied
rights under Articles 6 and 14 of the Covenant. Having been notified of the
communication, the State party breaches its obligations under the Protocol, if
it proceeds to execute the alleged victims before the Committee concludes
its consideration and examination, and the formulation and communication
of its Views. It is particularly inexcusable for the State to do so after the
Committee has acted under its rule 86 to request that the State party refrain
from doing so.

The Committee cannot accept the State party's argument that it was
inappropriate for counsel to submit a communication to the Human Rights
Committee after they had applied for Presidential clemency and this
application had been rejected. There is nothing in the Optional Protocol that
restricts the right of an alleged victim of a violation of his or her rights under
the Covenant from submitting a communication after a request for clemency
or pardon has been rejected, and the State party may not unilaterally impose
such a condition that limits both the competence of the Committee and the
right of alleged victims to submit communications. Furthermore, the State
party has not shown that by acceding to the Committee's request for interim
measures the course of justice would have been obstructed.

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 Human Rights Law
Nina Sarah P. Pineda, JD 2-3
March 8, 2017

Alfredo Baroy vs the Philippines

FACTS:

On 2 March 1998, a woman was raped three times. The author and an
(adult) co-accused were thereafter charged with three counts of rape with
use of a deadly weapon contrary to article 266A(1),1 in conjunction with
article 266B(2), 2 of the Revised Penal Code. It is alleged that on the date of
the offence, the author would have been 14 years, 1 month and 14 days old,
by virtue of being born on 19 January 1984. At trial, the defense introduced
the issue of minority through the author, who claimed to have been born in
1982. The trial court instructed the appropriate government agencies to
submit evidence on his true age. Three documents were submitted: (1) A
Certificate of Live Birth listed the date as 19 January 1984, (2) a Certificate of
Late Registration of Birth showed the date as 19 January 1981, and (3) an
Elementary School permanent record as 19 January 1980. The trial court
considered, in the light of the author's physical appearance, that the author's
true date of birth was 19 January 1980, thus making him over 18 years of
age at the time the offence was committed.

On 20 January 1999, the author and his (adult) co-accused were each
convicted of three counts of rape with a deadly weapon and sentenced to
death by lethal injection. In imposing the maximum penalty available, the
Court considered that there were the aggravating circumstances of night
time and confederation, and no mitigating circumstances. On 4 January
2002, the communication was submitted to the Committee. On 9 January
2002, the Committee requested the State party not to carry out the death
sentence against the author, while his case was under consideration by the
Committee. The Special Rapporteur on New Communications further
requested the State party speedily to determine the age of the author and

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 Human Rights Law
Nina Sarah P. Pineda, JD 2-3
March 8, 2017

meanwhile to treat him as a minor, in accordance with the provisions of the

Covenant.

On 9 May 2002, the Supreme Court, on automatic review, affirmed the

conviction but reduced the penalty from death to reclusion perpetua, on the
basis that no aggravating circumstances had been sufficiently alleged and
proven to exist. As to the issue of minority, the Court considered that the
record showed that the author had been coached by his mother to lie about
it, and thus, having been "obviously fabricated", minority had not been made
out. The author subsequently filed a partial motion for reconsideration of the
9 May 2002 judgment, reiterating his claim of minority as a privileged
mitigating circumstance.

The author claims to have been a victim of a violation of article 6,

paragraph 2, both alone and in conjunction with paragraph 6. The author
explains that following the constitutional abolition of capital punishment in
1987, the Congress in 1994 reintroduced the death penalty by electrocution
through the Republic Act 7659. The author argues that article 6, paragraph
2, in conjunction with paragraph 6, prohibits the re-imposition of the death
penalty, once abolished. In addition, the offence for which the author was
convicted was not a "most serious crime", as required by article 6, paragraph
2, of the Covenant. The author claims a violation of article 10, paragraph 3,
as after his conviction he was detained on death row with other convicts
sentenced to death, regardless of his age; he was not accorded a separate
procedure that would protect his rights considering his legal status as a
minor; no preliminary determination was made as to his minority, with the
trial court simply placing the burden of proof on the defence. The author
finally claims a violation of article 26, in that his age was arbitrarily
determined to be 18, despite evidence of his birth being either in 1981 or
1984.

STATE PARTYS DEFENCE:

The State party contested the admissibility of the communication. It

argues that, as the author's appeal was pending before the Supreme Court at
the time of submission of the communication, his complaints were "by and
large speculative and premature" and the communication was inadmissible
for failure to exhaust domestic remedies. The Court, for reasons other than
alleged minority, reduced the sentence to reclusion perpetua. For that
reason, the claims with respect to the validity of the death penalty law
should be deemed moot. It also rejected the claim of minority, finding it
"obviously fabricated" as a result of his mother's coaching.

VIEW OF THE COMMITTEE AND RIGHT(S) VIOLATED:

The Committee considers that the issues raised by the author

concerning the alleged violations of article 6 of the Covenant through
imposition of the death penalty in his case have become moot. With respect
to the claims under article 6, the Committee observes that sentencing a
person to death and placing him or her on death row in circumstances where
his or her minority has not been finally determined raises serious issues
under articles 10 and 14, as well as potentially under article 7, of the

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Covenant. The Committee observes, however, with respect to the exhaustion

of domestic remedies, that the author has filed a "partial motion for
reconsideration" currently pending before the Supreme Court, requesting the
Court to reconsider its treatment of his minority in its judgment of 9 May
2002. The Committee considers that the questions of the authors' age and
the means by which it was determined by the courts are, by the author's own
action, currently before a judicial forum with authority to resolve definitively
these particular claims. It follows that issues arising under articles 10 and 14
and, potentially, article 7 from the author's age and the manner in which the
courts sought to determine this question are inadmissible, for failure to
exhaust domestic remedies.

Lenido Lumanog and Augusto Santos vs the Philippines

FACTS:

The authors and three other individuals were sentenced to death for
the murder of former Colonel Rolando Abadilla by judgment of the Regional
Trial Court. They have been in detention since June 1996. After their motions
for reconsideration and new trial were rejected by the RTC, the case was
transmitted to the Supreme Court in February 2000 for automatic review
(appeal) of the death penalty. Soon after the last appeal brief, on 6 July 2004,
the authors filed a Consolidated Motion for Early Decisions. On 10
December 2004, they filed a Motion for Early Decision, which was
responded to by Supreme Court. In the latter resolution, the Supreme Court
transferred the case to the Court of Appeals for appropriate action and
disposition, in conformity with its new jurisprudence pursuant to the
judgment in Mateo where it enunciated that in criminal convictions by
regional trial courts imposing the death penalty, reclusion perpetua and life
imprisonment, the Court now deems it wise and compelling to provide in
these cases a review by the Court of Appeals before the case is elevated to

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Nina Sarah P. Pineda, JD 2-3
March 8, 2017

the Supreme Court. As a result, the authors filed an Urgent Motion for
Reconsideration of Transfer to the Court of Appeals stressing that the
jurisprudence in Mateo should not be applied automatically to each death
penalty case, but rather take into account the specific circumstances of each
case. The Supreme Court rejected the Motion for lack of merits. The review of
the case has been pending before the Court of Appeals since January 2005.
Having lost the possibility of an earlier decision before the Supreme Court,
the authors filed a Joint Motion for Early Decision. By Resolution of the
Court of Appeals, the case was remitted for decision. On 11 January 2007,
due to internal organizational matters of the Court of Appeals, the criminal
case concerning the authors was transferred to a newly appointed judge in
the Court.

With respect to Mr. Lumanog only, it is submitted that he was denied

interlocutory relief while the case was pending before the Supreme Court. In
a subsequent resolution dated 9 November 2004, the Supreme Court denied
another motion filed by Mr. Lumanog, who had become a kidney transplant
patient in 2003 and asked the Court to be returned to the specialist kidney
hospital where he was treated as a patient in 2002 instead of being placed in
the prisons general hospital.

The authors indicate that their complaint is limited to the alleged

violations of the Covenant caused by the transfer of their case from the
Supreme Court to the Court of Appeals. The authors claim that the decision
of the Supreme Court not to review their case and transfer it to the Court of
Appeals violates article 14, paragraph 5 of the Covenant insofar as it violates
their right to have their conviction and sentence reviewed by a higher
tribunal. They argue that the right to appeal involves a right to an effective
appeal. A review of a case which has been pending for five years before the
Supreme Court and then is transferred to the Court of Appeals which has no
knowledge of the case and should start to study the files anew, makes the
right to review ineffective. The authors claim that the same issue constitutes
a violation of article 14, paragraph 3(c) of the Covenant, since their case had
been pending for five years before the Supreme Court and was ready for a
decision when it was transferred to the Court of Appeals, thereby unduly
delaying the hearing. Furthermore, with respect to Mr. Lumanog, it is
submitted that the denial of his motions for a new trial and for return to a
specialist hospital as a kidney transplant patient was discriminatory. The
authors assert that all constitutes a violation of article 14, paragraph 1,
especially of the right to a fair hearing by an impartial tribunal. The authors
allege a violation of article 6, paragraph 1 and article 9, paragraph 1, since
the alleged violations of article 14 occurred in the context of a death penalty
case with prolonged detention which had very detrimental effect on the
authors, and notably for Mr. Lumanog. According to the authors, the transfer
of the case to a newly appointed judge in the Court of Appeals will create a
further delay in the review of the case because the new judge will have to
study the file anew. These developments are accompanied by the further
aggravation of the medical conditions of Mr. Lumanog.

STATE PARTYS DEFENCE:

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 Human Rights Law
Nina Sarah P. Pineda, JD 2-3
March 8, 2017

The State party challenges the admissibility of the communication for

non-exhaustion of domestic remedies. It states that the transfer of the
authors case to the Court of Appeals was made pursuant to an amendment
to the Revised Rules of Court on Criminal Procedure. The State party notes
that the authors never challenged the modification of the Revised Rules of
Court on Criminal Procedure in the States party courts and thus did not duly
exhaust domestic remedies.

On the alleged violation of article 14, paragraph 5 of the Covenant, the

State party asserts that this claim has no merits, since the authors appealed
against the decision of the trial court in conformity with the right of review of
conviction by a higher tribunal under article 14, paragraph 5, of the
Covenant.

With regard to the alleged violation of article 14, paragraph 3(c), the
State party argues that only in case of delays in proceedings which are
caused by vexatious, capricious and oppressive delays such a violation
may occur.

With respect to the alleged discriminatory treatment which Mr.

Lumanog suffered because of the Supreme Courts denial of his motion for
new trial, the State party submits that the author has failed to prove the
existence of all the elements necessary for a re-trial.

VIEW OF THE COMMITTEE AND RIGHT(S) VIOLATED:

The Committee considers that domestic remedies have been

exhausted insofar as the authors did challenge the transfer of their appeal
from the Supreme Court to the Court of Appeals by filing two motions in the
Supreme Court, both of which were rejected.

The Committee decides that the communication is admissible only

insofar as it raises issues under article 6, paragraph 1, and article 14,
paragraph 3(c), of the Covenant.

With respect to a possible violation of article 6, paragraph 1, the

Committee considers that this claim has been rendered moot after the
abolition by the Philippine Congress of the death penalty.

In relation to the authors claim under article 14, paragraph 3 (c), it

may be noted that the right of the accused to be tried without undue delay
relates not only to the time between the formal charging of the accused and
the time by which a trial should commence, but also the time until the final
judgment on appeal. All stages whether at first instance or on appeal, must
be completed without undue delay. The Committee notes that the authors
are in continuous detention since 1996 and their conviction, dated 30 July
1999, had been pending for review before the Supreme Court for 5 years
before being transferred to the Court of Appeals. To date, more than three
years have elapsed since the transfer to the Court of Appeals and still the
authors case has not been heard. The Committee considers that the
establishment of an additional layer of jurisdiction to review death penalty
cases is a positive step in the interest of the accused person. However, State
parties have an obligation to organize their system of administration of

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justice in such a manner as to ensure an effective and expeditious disposal

of the cases.

In the Committees view, the State party has failed to take into
consideration the consequences, in terms of undue delay of the proceedings,
that the change in its criminal procedure caused in this case, where the
review of a criminal conviction was pending for many years before the
Supreme Court and was likely to be heard soon after the change in the
procedural rules.

The Committee is of the view that, under the aforesaid circumstances,

there is no justification for the delay in the disposal of the appeal, more than
eight years having passed without the authors conviction and sentence
been reviewed by a higher tribunal. Accordingly, the Committee finds that
the authors rights under article 14, paragraph 3 (c) of the Covenant, have
been violated.

Orly Marcellana and Daniel Gumanoy vs the Philippines

FACTS:

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 Human Rights Law
Nina Sarah P. Pineda, JD 2-3
March 8, 2017

Ms. Marcellana was the former Secretary General of Karapatan-

Southern Tagalog nd Mr. Eddie Gumanoy was the former chairperson of
Kasama Tk. From 19 April 2003 to 21 April 2003, they were leading a fact-
finding mission in the province of Mindoro Oriental, to enquire about the
abduction of three individuals in Gloria town allegedly committed by
elements of the 204th infantry brigade, under the command of one Col.
Jovito Palparan, and the killing and disappearance of civilians and burning of
properties by the military in the town of Pinamalayan.
The authors claim that Ms. Marcellana was threatened several times by the
military for her advocacy work. In addition, while conducting their work,
mission members were under the impression that they were under constant
surveillance.

On 21 April 2003, the victims decided to conclude the mission and

leave Pinamalayan for Calapan City. On the same day, at around 7.00 pm,
the victims were travelling on the highway about 5.5 kilometres from the
204th infantry brigade headquarters, when their van was stopped by ten
armed men. The assailants specifically asked for Ms. Marcellana, who was
forced to reveal her identity. At some point, the victims were ordered to step
out of the vehicle while the other members of the fact-finding mission stayed
inside the vehicle and were later dropped along the roadside in different
parts of Bongagbong municipality. The dead bodies of Ms. Marcellana and Mr.
Eddie Gumanoy were found the following day. Forensic reports and the death
certificates indicate that their death was caused by gun-shot wounds. The
authors filed a complaint for kidnapping and murder before the Department
of Justice but the DOJ dismissed the complaint and the charges against one
of the alleged perpetrators on the ground of insufficient evidence. The
authors filed a Petition for Review which was dismissed. the authors
appealed the DOJs decisions before the Office of the President of the
Republic. The appeal requested that the DOJ decision be reversed and that
charges be filed against Aniano Silver Flores and Richard Waway Falla.
That appeal is still pending. A complaint was also filed with the Commission
on Human Rights of the Philippines. This complaint was later withdrawn, due
to the authors assessment that they would not obtain justice from this body.
Complaints were also filed with the House of Representatives of the
Philippines, the Senate, and under the Comprehensive Agreement on respect
for Human Rights and International Humanitarian Law, but no action was
taken. The authors add that, in spite of widespread and public opposition,
one of the principal suspected perpetrators, Col. Palparan, was later
promoted to Major General by the President. The authors recognize that
domestic remedies have not been exhausted, but state that in the present
case, remedies have been unreasonably prolonged and are ineffective, as
they are unlikely to result in substantial justice and effective redress and do
not constitute a remedy for the authors. The authors claim a violation by the
State party of article 2, paragraphs 1 and 3; article 6, paragraph 1; article 7;
article 9, paragraph 1; article 10, paragraph 1; article 17; and article 26 of
the Covenant.

STATE PARTYS DEFENCE:

The State party claims that the authors have not exhausted all
available domestic remedies. The State party argues that the authors have
chosen not to pursue available domestic remedies due to impatience and

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mistrust in the local government. Therefore, it contends that it is premature

for the authors to conclude that domestic remedies are ineffective. In
addition, the State party argues that the communication is inadmissible
under article 5, paragraph 2 (a) of the Optional Protocol as the same matter
is being examined by the Special Rapporteur on extrajudicial, summary or
arbitrary executions, who visited the country from 12- 21 February 2007.

VIEW OF THE COMMITTEE AND RIGHT(S) VIOLATED:

The Committee notes the State party's challenge to the admissibility of

the communication on the ground of failure to exhaust domestic remedies.
The authors have conceded non-exhaustion of domestic remedies but claim
that remedies have been ineffective and unreasonably prolonged. The
Committee refers to its case law, to the effect that, for the purposes of article
5, paragraph 2 (b), of the Optional Protocol, domestic remedies must both be
effective and available, and must not be unduly prolonged. The victims
bodies were found in April 2003, and complaints were filed with the
legislative bodies and the DOJ soon thereafter.7 Proceedings at the DOJ were
finally closed in April 2007. To date, an appeal filed in May 2007 before the
Office of the President has not been resolved and remains pending. The
Committee considers that, in the circumstances of the present case,
domestic remedies have been unreasonably prolonged. The Committee
accordingly finds that article 5, paragraph 2 (b), does not preclude it.

The Committee also notes the State partys contention that the case is
inadmissible because the subject matter of the communication is being or
was examined by the United Nations Special Rapporteur on extrajudicial,
summary or arbitrary executions, who visited the country in February 2007.
However, the Committee observes that fact-finding country visits by a
Special Rapporteur do not constitute a procedure of international
investigation or settlement within the meaning of article 5, paragraph 2(a),
of the Optional Protocol. The Committee further recalls that from considering
the complaint. the study of human rights problems in a country by a Special
Rapporteur, although it might refer to or draw on information concerning
individuals, could not be regarded as being the same matter as the
examination of individual cases within the meaning of article 5, paragraph 2
(a), of the Optional Protocol. Accordingly, the Committee considers that the
2007 country visit by the UN Special Rapporteur on extrajudicial, summary or
arbitrary executions, does not render the communication inadmissible under
article 5, paragraph 2 (a), of the Optional Protocol. The Committee notes
that the State partys prosecutorial authorities have, after a preliminary
investigation, decided not to initiate criminal proceedings against one of the
suspects due to lack of sufficient evidence. The Committee concludes that
the absence of investigations to establish responsibility for the kidnapping
and murder of the victims amounted to a denial of justice. The State party
must accordingly be held to be in breach of its obligation, under article 6, in
conjunction with article 2, paragraph 3, properly to investigate the death of
the victims and take appropriate action against those found guilty. The
Committee observes that, given that the victims were human rights workers
and that at least one of them had been threatened in the past, there
appeared to have been an objective need for them to be afforded protective
measures to guarantee their security by the State. However, there is no
indication that such protection was provided at any time. On the contrary,

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the authors claimed that the military was the source of the threats received
by Ms. Marcellana, and that the fact-finding team was under constant
surveillance during its mission. In these circumstances, the Committee
concludes that the State party has failed to take appropriate measures to
ensure the victims right to security of person, protected by article 9,
paragraph 1, of the Covenant. The Human Rights Committee, acting under
article 5, paragraph 4, of the Optional Protocol to the International Covenant
on Civil and Political Rights, is of the view that the facts as found by the
Committee reveal a violations by the Philippines of article 2, paragraph 3;
article 6, paragraph 1; and article 9, paragraph 1, of the Covenant.
Francisco Juan Llaranaga vs. the Philippines

FACTS:

According to the author, he travelled from Cebu City to Quezon City to

pursue a Diploma at the Centre for culinary arts in Quezon City. On 16 July
1997, he was taking examinations during the entire day and then went to a
restaurant in the evening. He stayed with friends until the next morning. On
17 July 1992, he took another examination before taking a plane back to
Cebu City at 5pm. The police tried to arrest the author without a warrant and
the authors counsel made a request to the prosecutor that the author be
given a preliminary investigation and that he be granted a period of twenty
days to file the defence affidavit. The prosecutor denied this request.
Authors counsel appealed to the Court of Appeals to prevent the filing of
criminal information against the author. However, criminal charges had
already been filed with the RTC of Cebu City. Counsel filed a petition with the
Court of Appeals requesting that the Regional Trial Court of Cebu City
prevent the authors arrest. Nevertheless, he was arrested on that day with a
warrant issued by that court. He remains incarcerated ever since.

Another petition was filed in the Court of Appeals against his arrest but
was dismissed. This decision was appealed to the Supreme Court. Despite
this pending appeal, the author was brought before a Judge on 14 October
1997. He did not enter a plea and the judge thus entered a plea of not guilty
to two counts of kidnapping with serious illegal detention. The trial began
and the prosecution presented its first and main witness, the defendant
Davidson Valiente Rusia, who was promised immunity from prosecution if he
told the truth. The prosecution witness was induced by the judge to testify
against the author and his co-defendants. During the hearings, the witness
admitted for the first time that he had raped Marijoy Chiong. However, on
the second day, the cross-examination was cut short just after the witness
admitted that he lied about his previous convictions, which should have
disentitled him from immunity, and claimed to feel dizzy.

Authors counsel refused to participate in the trial and asked the trial
Judge to recuse himself but he was summarily found guilty of contempt of
court, arrested and imprisoned. The author gave written consent to the
withdrawal of his counsel and requested three weeks to hire a new counsel.
The court refused to adjourn the trial any further. The trial resumed and the
court appointed three attorneys of the Public Attorneys Office as defence
counsel for all the defendants who were without legal counsel, including the
author. The author reiterated that he wanted to choose his own counsel.

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Twenty-five prosecution witnesses testified while the author was

represented by counsel from the Public Attorneys Office. The authors newly
appointed counsel appeared in the proceedings and asked that the
prosecution witnesses be re-examined. The court refused. It also refused to
grant the authors new counsel an adjournment of either twenty or thirty
days to acquaint himself with the case file and effectively conduct the cross-
examination of the witnesses. Instead, the court ordered that the cross-
examination would start on 30 September 1998, because the trial should be
terminated within sixty days. Authors counsel cross-examined again the
main prosecution witness Rusia. However, in response to a motion from the
prosecution, he was discharged as a witness and was granted immunity from
prosecution. By Order, the trial court had given the new counsel only four
days to decide whether to cross-examine the prosecution witnesses who had
testified while the author was assisted by a counsel from the Public
Attorneys Office. Counsel refused, in protest, to cross-examine these
prosecution witnesses. The trial court decided that all the defendants had
waived their right to cross-examine prosecution witnesses. Fourteen
witnesses testified in favour of the author and confirmed that he was in
Quezon City immediately before, during and after the alleged crime
committed in Cebu City. Several pieces of evidence were presented to the
court to the same effect. The trial judge refused to hear other witnesses on
the ground that their testimony would be substantially the same as the
authors other witnesses and refused to hear evidence from other defence
witnesses on the ground that the evidence was irrelevant and immaterial.

The Special Heinous Crimes Court found the author guilty of the
kidnapping and serious illegal detention of Jacqueline Chiong and sentenced
him to reclusion Perpetua. It decided that there was insufficient evidence to
find him guilty of the kidnapping and serious illegal detention with homicide
and rape of Marijoy Chiong. The author appealed to the Supreme Court. It
found the author guilty not only of the kidnapping and serious illegal
detention of Jacqueline Chiong but also of the complex crime of kidnapping
and serious illegal detention with homicide and rape of Marijoy Chiong. The
author was sentenced to death by lethal injection. A motion for
reconsideration was lodged with the Supreme Court but was rejected.

The author alleges a violation of article 6 of the Covenant because the

State party reintroduced the death penalty after abolishing it. The author
argues that mandatory death penalty violates his right not to be arbitrarily
deprived of his life. The author alleges a violation of article 14, paragraph 2,
and that the evaluation of facts and evidence by the Special Heinous Crimes
Court and the Supreme Court were manifestly arbitrary and amounted to a
denial of justice, in violation of his right to be presumed innocent until proved
guilty. The author further alleges violations of article 14 because the
convictions and sentences imposed were premised on serious procedural
irregularities which either individually or cumulatively constitute violations of
this provision. Firstly, he was prevented from testifying at his own trial in
violation of article 14, paragraphs 1, 3(d) and 3(e). Secondly, the author
alleges a violation of article 14, paragraph 1, and article 14, paragraph 2
because both the trial court and the Supreme Court were subject to outside
pressure from powerful social groups. The author argues that bearing in mind
the irreversible nature of the death penalty and the ineffectiveness of court-
appointed lawyers in these cases, his counsel did not have sufficient time to

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prepare the defence, in violation of article 14, paragraph 3(b) and that he
could not choose an effective counsel, in violation of article 14, paragraph
3(d). Thirdly, the author argues that there was no equality to call and
examine witnesses in violation of article 14, paragraph 3 (e). The author
argues that he was not tried by an independent and impartial tribunal in
violation of article 14, paragraph 1.

STATE PARTYS DEFENCE:

With regard to the reintroduction of the death penalty, it argues that

the death penalty was never abolished by the 1987 Constitution.

With regard to the allegation that the imposition of death penalty on

the author was mandatory, by operation of law, without regard to possible
mitigating circumstances, the State party recalls that the Revised Penal Code
provides that a person may be convicted for the criminal act of another
where, between them, there has been conspiracy or unity of purpose and
intention in the commission of the crime.

With regard to the allegation that the evaluation of facts was

manifestly arbitrary and constituted a denial of justice, the State party
argues that the Supreme Court judgement demonstrates that there was clear
evidence of homicide and rape.

With regard to the allegation that the prosecution was based on

evidence from an accomplice charged with the same crime, the State party
recalls that the trial court chose to give credence to his testimony.

On the alleged incorrect standard and burden of proof, the State party
argues that while it is the duty of the prosecution to prove the allegations in
the indictment regarding the elements of the crime, it is the duty of the
defence to prove the existence of an alibi, or of justifying or exempting
circumstances.

With regard to the alleged outside pressure on specific judges, the

State party notes that the decision of the Supreme Court was rendered by
the court as a whole, rather than by specific Justices.

With regard to the allegation that fair hearing violations invalidate the
decision of the Special Heinous Crimes Court, the State party argues that the
author was not prevented from testifying, since the prosecution and the
defence agreed to dispense with his testimony, as mentioned in the authors
own submission to the Committee.

With regard to the allegation that counsel did not have sufficient time
to prepare the defence and that the authors right to choose effective
counsel was violated, the State party recalls that the authors counsel was
found guilty of direct contempt of court and hence imprisoned.

VIEW OF THE COMMITTEE AND RIGHT(S) VIOLATED:

The Committee recalls its jurisprudence that the automatic and

mandatory imposition of the death penalty constitutes an arbitrary

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deprivation of life, in violation of article 6, paragraph 1, of the Covenant, in

circumstances where the death penalty is imposed without any possibility of
taking into account the defendants personal circumstances or the
circumstances of the particular offence. It follows that his rights under article
6, paragraph 1, of the Covenant were violated.

The Committee notes that the trial judge did not show sufficient
latitude in permitting the defendant to prove his defence, and in particular,
excluded several witnesses offered in the alibi defence. The Committee
concludes that the authors trial did not respect the principle of presumption
of innocence, in violation of article 14, paragraph 2.

The Committee further notes that the information before it reveals that
the authors appointed counsel requested the court to allow him an
adjournment, because he was unprepared to defend his client. The judge
refused to grant the requests allegedly because the trial had to be
terminated within sixty days. The Committee considers that in a capital case,
when counsel for the defendant requests an adjournment because he was
not given enough time to acquaint himself with the case, the court must
ensure that the defendant is given an opportunity to prepare his defence. In
the instant case, both the authors appointed and chosen counsel should
have been granted an adjournment. In the circumstances, the Committee
finds a violation of article 14, paragraph 3(b) and (d) of the Covenant.

As to the authors representation before the trial court, the Committee

states that the trial court should have accepted the authors request for a
different counsel, even if this entailed an adjournment of the proceedings. To
the extent that the author was denied effective representation by counsel of
his own choosing and that this issue was raised before the Supreme Court
which failed to correct it, the requirements of article 14, paragraph 3(d),
have not been met.

Concerning the authors claim that there was no equality of arms

because his right to cross-examine prosecution witnesses was restricted, the
Committee considers that the trial courts denial to hear the remaining
defence witnesses without any further justification other than that the
evidence was irrelevant and immaterial and the time constraints, while, at
the same time, the number of witnesses for the prosecution was not similarly
restricted, does not meet the requirements of article 14. In the above
circumstances, the Committee concludes that there was a violation of article
14, paragraph 3(e), of the Covenant.

It has also been noted by the Committee that the Supreme Court found
the author guilty of rape and homicide after he had been acquitted of the
same crime at first instance. As a result, the author had no possibility to
have the death sentence reviewed by a higher tribunal according to law, as
required by article 14, paragraph 5. The Committee concludes that the facts
before it disclose a violation of article 14, paragraphs 1 and 5, of the
Covenant.

The Human Rights Committee, acting under article 5, paragraph 4, of

the Optional Protocol to the International Covenant on Civil and Political
Rights, is of the View that the facts before it reveal violations by the State

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party of article 6, paragraph 1; article 7; and article 14, paragraphs 1, 2,

3(b), (c), (d), (e), 5, of the Covenant.

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