Communication No. 788/1997*
Submitted by: Messrs.
Geniuval M. Cagas, Wilson Butin and Julio Astillero (represented by Crusade
against Miscarriage of Justice, Inc.)
Alleged victims: The
authors
State party: The Philippines
Date of communication:
17 September 1996 (initial submission)
The Human Rights Committee,
established under article 28 of the International Covenant
on Civil and Political Rights,
Meeting on: 23 October
2001
Having concluded its
consideration of communication No. 788/1997, submitted to the Human Rights
Committee by Messrs. Geniuval M. Cagas, Wilson Butin and Julio Astillero
under the Optional Protocol to the International Covenant on Civil and
Political Rights,
Having taken into account
all written information made available to it by the authors of the communication,
and the State party,
Adopts the following:
Views under article 5, paragraph 4, of the Optional Protocol
1. The authors of the communication,
dated 17 September 1996, are Mr. Geniuval M. Cagas, Mr. Wilson Butin and
Mr. Julio Astillero, all citizens of the Philippines and currently detained
in Tinangis Jail and Penal Farm, Philippines. They claim to be victims
of a violation by the Philippines of article 14 (2) of the Covenant. They
are represented by Crusade against Miscarriage of Justice, Inc., a non-governmental
organization.
The facts as presented
by the authors
2.1 On 23 June 1992, the police
of Libmanan, Camarines Sur, Philippines, found the bodies of six women
in the house of Dr. Dolores Arevalo, one of the victims. Their hands had
been bound and their heads smashed.
2.2 Although there was no
eyewitness to the actual killings, a neighbour, Mr. Publio Rili, claims
to have seen four men entering the house of Dr. Arevalo during the evening
of 22 June 1992. Mr. Rili later identified the three authors as being
among the individuals he saw on the evening in question. Soon after the
four men entered the house, the same witness heard "thudding sounds"
emanating from the house of Dr. Arevalo. He then saw a car driving away
from the premises.
2.3 During the same night,
a policeman saw the car in question and wrote down its number plate. The
investigation later revealed that the number plate was that of a car owned
by Mr. Cagas. The two other co-accused and authors are Mr. Cagas' employees.
2.4 According to the investigation,
Mr. Cagas was a supplier of medicines in a hospital where Dr. Arevalo
was appointed Chief of Hospital sometime before the incident. It was also
reported that Dr. Arevalo refused to purchase medical supplies from Mr.
Cagas.
2.5 The prosecution submitted
to the Court a certified copy of a telegram that had allegedly been sent
by Mr. Cagas to Dr. Arevalo's husband, asking him to tell his wife, Dr.
Arevalo, not to ask for rebates in medical supplies any longer.
2.6 The authors were arrested
on 26, 29 and 30 June 1992, on suspicion of murder (the so-called Libmanan
massacre). They claim that they are innocent.
2.7 On 14 August 1992, the authors appeared in Court and were ordered
detained until the trial. On 11 November 1992, the authors filed a petition
for bail and on 1 December 1992, they filed a motion to quash the arrest
warrants. On 22 October 1993, the regional Trial Court refused to grant
bail. On 12 October 1994, the Court of Appeals in Manila confirmed the
Trial Court Order of 22 October 1993. A motion for reconsideration of
the Court of Appeals' decision was dismissed on 20 February 1995. On 21
August 1995, the Supreme Court dismissed the authors' appeal against the
Court of Appeals' decision.
2.8 On 5 June 1996, Mr. Cagas
sent a letter on behalf of the authors to the Court Administrator of the
Supreme Court, submitting additional facts in support of their claim that
their right to bail had been wrongly denied.
2.9 On 26 July 1996, the Court Administrator replied to the authors that
they were no longer entitled to raise issues that were not raised before
the Supreme Court.
2.10 In a further submission
of 29 May 19989, the authors allege that on 24 and 25 March 1997,
one of them, Mr. Julio Astillero had been subjected to "alcohol torture
or treatment" (1) by prison guards with the purpose to force
him to become a "State witness". The alleged ill-treatment had
been reported to Judge Martin Badong, the then presiding judge of the
regional trial court, but the latter took no action in this respect.
The complaint
3.1 The authors alleged a
violation of article 14 (2) of the Covenant. They claim that the order
for pre-trial detention is based solely on circumstantial evidence, which
is not sufficient to justify a denial of bail and that this order has
not been properly reviewed by higher courts, which have refused to reconsider
the facts as they were assessed by the trial judge.
3.2 The authors claim that,
by rejecting their claim on 26 July 1996, the Court Administrator relied
on a technicality rather than on the substance of the law, while the issue
was related to fundamental constitutional rights.
3.3 The authors note that
while the presumption of innocence is a principle embodied in the Philippine
Constitution, accused who are denied bail are denied their right to presumption
of innocence. They further contend that a denial of bail deprives them
of adequate time and facilities to prepare their defence properly, which
constitutes a breach of the principle of due process.
3.4 Although not expressly
invoked by the authors, the facts as submitted raise issues under articles
9 (3) and 14 (3) of the Covenant in relation to the time that the authors
have spent in pre-trial detention, and under articles 7 and 10 of the
Covenant in relation to the alleged ill-treatment to which Mr. Julio Astillero
was allegedly subjected on 24 and 25 March 1997.
Observations by the
State party
4.1 In a submission dated
16 March 1998, the State party transmitted its observations on the merits
of the case.
4.2 Emphasizing that the right
to due process of law is the cornerstone of criminal prosecution in its
jurisdiction, the State party considers that this principle is complied
with as long as an accused has been heard by a competent court, prosecuted
under the orderly process of law, and punished only after a judgement
has been handed down in conformity with constitutional law.
4.3 The State party also points
out that the right to bail can be denied whenever the charges are related
to an offence punishable by "perpetual reclusion" and when the
evidence is strong, an assessment that is left to the judge's discretion.
4.4 In the present case, the State party is of the opinion that the authors,
although they were denied bail, have not been denied the right to be presumed
innocent, because only a full trial on the merits would allow to declare
them guilty beyond reasonable doubt.
4.5 Moreover, the State party
considers that, although pre-trial detention is a situation in which the
authors might lack adequate time and facilities to prepare their defence,
the principle of such a detention does not detract from the essence of
due process of law as long as the elements of due process referred to
in paragraph 4.2 are present.
4.6 The State party emphasizes
that Mr. Cagas had admitted in his letter of 5 June 1996 to the Court
Administrator that "the defect noted in the Order of [22 October
1993] was never raised in the certiorari that reached the Court of Appeals
and the Supreme Court" and that Mr. Cagas admitted to have directly
addressed his grievance to the Court Administrator. The State party notes
in this respect that the Office of the Court Administrator is under the
authority of the Supreme Court and is not in any manner involved in the
adjudication of cases; it therefore lacks the competence to review decisions
taken by the Supreme Court. The State party further indicates that the
authors were duly represented by a prominent human rights attorney.
Comments by the authors
5.1 In a letter dated 29 May
1998, the authors submitted their comments on the observations of the
State party.
5.2 The authors reiterate
their claim that when bail is denied, the constitutional right of an accused
to be presumed innocent is substantially impaired. Moreover, when an accused
is detained before the trial, he lacks adequate time and facilities for
the preparation of his defence, which eventually leads to the loss of
substantive due process.
5.3 As a general rule, bail
may be granted in all criminal proceedings. The only exception to this
rule is when an accused is charged with a capital offence carrying a severe
penalty and, most importantly, when the evidence against the accused is
strong. This also requires that any exception to the right to bail must
be adequately justified in the decision.
5.4 In the present case, the
authors are of the opinion that the justification for the denial of bail
is absent from the Order of the Trial Court of 22 October 1993. Moreover,
they suggest that the requirement of strong evidence was not satisfied.
In this regard, the authors note that the prosecution merely showed that
they were suspects who might have committed the crime, basing their findings
on circumstantial evidence. The authors consider that, in the absence
of an eyewitness who saw the actual murders, circumstantial evidence presented
in the case is not sufficient to prove that the authors were the perpetrators
of the crime.
5.5 The authors also note
that both the Court of Appeals and the Supreme Court have limited their
consideration on a procedural aspect of the case, considering that the
assessment of facts was at the trial judge's discretion, and have not
addressed the issue of the right to bail by assessing the constitutional
requirement of strong evidence to deny bail. The authors have thereafter
raised this issue with the Court Administrator, claiming that the latter
has the power and duty to call the attention of trial judges when a travesty
of justice is manifestly occurring within his jurisdiction.
5.6 In order to enable the
Committee to take its decision in the light of all appropriate information,
the authors also draw the attention of the Committee on the following
latest developments:
- A motion for reinvestigation was denied on 20 May 1998.
- The original telegram
allegedly sent by Mr. Cagas to Mrs. Arevalo's husband and primarily
used by the prosecution to establish the motive for the crime was never
produced and is apparently lost. The authors provide certificates according
to which the original of this document cannot be found.
Further observations
by the State party
6. The preceding comments
were submitted to the State party on 30 October 1998. On 20 September
2000, another letter was sent to the State party inviting it to submit
its observations on the merits of the case. By a note verbale of 2 October
2000, the State party informed the Committee that it did not wish to make
any further comments on the case and referred to its previous submission
of 16 March 1998.
Issues and proceedings
before the Committee
7.1 Before considering any
claim contained in a communication, the Human Rights Committee must, in
accordance with rule 87 of its Rules of Procedure, decide whether or not
the complaint is admissible under the Optional Protocol to the Covenant.
7.2 Noting that the State
party has not raised any objections to the admissibility of the communication,
that the authors have exhausted all available domestic remedies and that
the same matter is not being examined under another procedure of international
investigation or settlement, the Committee declares the communication
admissible.
7.3 With regard to the allegation
of violation of article 14 (2), on account of the denial of bail, the
Committee finds that this denial did not a priori affect the right of
the authors to be presumed innocent. Nevertheless, the Committee is of
the opinion that the excessive period of preventive detention, exceeding
nine years, does affect the right to be presumed innocent and therefore
reveals a violation of article 14 (2).
7.4 With regard to the issues
raised under articles 9 (3) and 14 (3) of the Covenant, the Committee
notes that, at the time of the submission of the communication, the authors
had been detained for a period of more than four years, and had not yet
been tried. The Committee further notes that, at the time of the adoption
of the Committee's Views, the authors appear to have been detained without
trial for a period in excess of nine years, which would seriously affect
the fairness of the trial. Recalling its General Comment 8 according to
which "pre-trial detention should be an exception and as short as
possible, and noting that the State party has not provided any explanation
justifying such a long delay, the Committee considers that the period
of pre-trial detention constitutes in the present case an unreasonable
delay. The Committee therefore concludes that the facts before it reveal
a violation of articles 9 (3) of the Covenant. Furthermore, recalling
the State party's obligation to ensure that an accused person be tried
without undue delay, the Committee finds that the facts before it also
reveal a violation of article 14 (3) (c) of the Covenant.
7.5 With regard to the allegations
of ill-treatment suffered by Mr. Julio Astillero, the Committee notes
that the allegations are very general in nature, and fail to describe
the nature of the acts which were allegedly carried out. Thus, while the
State party did not respond to the Committee's invitation to comment on
the authors' submission of 29 May 1998, the Committee is of the opinion
that the authors have not sufficiently substantiated that the rights of
Mr. Astillero under articles 7 and 10 of the Covenant were violated.
8. 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 disclose a violation of articles 9 (3), 14 (2) and 14 (3) (c)
of the Covenant.
9. In accordance with article
2, paragraph 3 (a), of the Covenant, the State party is under an obligation
to provide the authors with an effective remedy, which shall entail adequate
compensation for the time they have spent unlawfully in detention. The
State party is also under an obligation to ensure that the authors be
tried promptly with all the guarantees set forth in article 14 or, if
this is not possible, released.
10. Bearing in mind that,
by becoming a State party to the Optional Protocol, the State party has
recognized the competence of the Committee to determine whether there
has been a violation of the Covenant or not and that, pursuant to article
2 of the Covenant, the State party has undertaken to ensure to all individuals
within its territory and subject to its jurisdiction the rights recognized
in the Covenant to provide an effective and enforceable remedy in case
a violation has been established, the Committee wishes to receive from
the State party, within 90 days, information about the measures taken
to give effect to its Views.
_________________
* The following members of the Committee participated in the examination
of the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Ms.
Christine Chanet, Mr. Louis Henkin, Mr. Ahmed Tawfik Khalil, Mr. Eckart
Klein, Mr. David Kretzmer, Ms. Cecilia Medina Quiroga, Mr. Rafael Rivas
Posada, Sir Nigel Rodley, Mr. Martin Scheinin, Mr. Ivan Shearer, Mr. Hipólito
Solari Yrigoyen and Mr. Maxwell Yalden.
The text of two individual
opinions signed by three Committee members: Ms. Cecilia Medina Quiroga,
Mr. Rafael Rivas Posada and Mr. Hipólito Solari Yrigoyen, are appended
to the present document.
[Adopted in English, French
and Spanish, the English text being the original version. Subsequently
to be issued in Arabic, Chinese and Russian as part of the Committee's
annual report to the General Assembly.]
Appendices
Individual opinion by Committee members Ms. Cecilia Medina Quiroga
and Mr. Rafael Rivas Posada
(dissenting)
In this case, the Committee
has decided that the Philippines violated, to the detriment of Mr. Cagas,
Mr. Butin and Mr. Astillero, articles 9 (3), 14 (2) and 14 (3) of the
International Covenant on Civil and Political Rights. In this respect
I concur with the majority vote, but I dissent from that vote in that
I believe that the Committee should also have found that the State had
violated article 14 (1) of the Covenant. I explain my reasons below:
(a) In the file before the
Committee there is no indication that the three authors of the communication
have been tried and have been convicted and sentenced to a custodial penalty.
It may therefore be presumed that they have been deprived of their liberty
for a period of nine years without a trial and without a conviction, since
it was the responsibility of the State to inform the Committee about this
matter, and this has not so far been done. This is a clear violation of
articles 9 (3) and 14 (3) of the Covenant. It should be noted that such
a lengthy deprivation of liberty can only be considered as equivalent
to the serving of a sentence, in this case without a conviction to back
it up. This, in my opinion, calls into question the State party's compliance
with the provisions of article 9 (1) of the Covenant, which prohibits
arbitrary detention.
(b) The fact that for so many
years no trial has been held, apart from constituting a violation of article
14 (3), inevitably jeopardizes the production of evidence. This vitiates
any trial of the authors that may possibly be held. Thus, for example,
the possibility that the judgement may be based on statements by witnesses,
made many years after the events occurred, places the accused in a situation
of defencelessness, contrary to the guarantees granted by the Covenant.
It is not possible for a trial for homicide or murder, whichever the case
may be, held nine or more years after the events to be a "fair trial"
in the terms established by article 14 (1).
(c) Lastly, through having
allowed time to pass without providing the accused with due process as
laid down by the Covenant, the State has not only violated article 14
(1) by omission, but has placed itself in a position where it will be
impossible for it to comply with the Covenant in the future. Consequently,
and in addition, I cannot agree with paragraph 9 of the Views of the majority.
I consider that, in the present case, it is incumbent on the State to
release the detainees immediately. Obviously, there is a State interest
in criminal prosecution, but this prosecution can be carried out only
within the limits permitted by international law. If the organs of criminal
justice in a State are ineffective, the State must solve the problem in
a manner other than that of infringing the guarantees of the accused.
(Signed): Cecilia Medina
Quiroga
(Signed): Rafael Rivas
Posada
Individual opinion of Committee member Mr. Hipólito Solari Yrigoyen
(dissenting)
I base my dissenting vote,
rejecting the majority vote concerning the violation of Covenant articles
7 and 10 suffered by the author Mr. Julio Astillero, on the following
considerations:
In a communication of 29 May
1998, the authors stated that one of their number, Julio Astillero, had
been subjected to torture on two occasions, on 24 and 25 March 1997. They
called the kind of torture which he suffered "alcohol treatment"
and named the principal perpetrator of this treatment as Marlon Argarin,
who at that time was working as a prison guard at Tinangis Jail - Penal
Farm in Pili, Camarines Sur region (Philippines), where they were being
held. They further stated that the guard Argarin later became Chief of
Security of the Operations Service and that in the practice of torture
he enjoyed the complicity of other guards in the same prison where the
events in question occurred. They also complained that the purpose of
the torture inflicted on prisoner Astillero was to force him to become
a "State witness".
In addition, the authors stated
that a complaint concerning all these events was made before Judge Martín
Badong, the President of the Court of First Instance, Branch 33, Pili,
Camarines Sur region, who, according to them, took no action to investigate
the complaint.
Although the authors did not
explain what the so-called "alcohol treatment" consisted of,
there is no doubt, in view of the complaint's terminology, which is consistent
with the text of article 7 of the Covenant, that what was involved was
torture or cruel, inhuman or degrading treatment or punishment, to which
no one may be subjected. Since prisoner Astillero was deprived of his
liberty and subjected to torture, he was not treated humanely or with
the respect inherently due to the human individual.
The complaint about violation
of articles 7 and 10 of the Covenant was fully substantiated by the following
details:
(a) Dates on which the torture occurred;
(b) Place in which torture
was perpetrated;
(c) Name of the alleged
torturer;
(d) His job at the time
of the torture;
(e) The post he later occupied;
(f) Existence of other accomplices;
(g) Jobs of the alleged
accomplices;
(h) Specific reference to
the complaint lodged about the torture;
(i) Name of the judge who
received the complaint;
(j) Title of the judge;
(k) Precise identification
of the court with which the complaint was lodged.
All these comments by the
authors, linked to the complaint of torture, together with other types
of comments, were brought to the attention of the State party on 30 October
1998. The State party remained silent in the face of these comments, a
fact which, as the Committee has declared on other occasions, constitutes
a lack of cooperation through non-compliance with its obligation under
article 4 (2) of the Optional Protocol to submit to the Committee written
explanations or statements clarifying the matter and the remedy, if any,
that may have been taken by that State.
The State party's lack of
cooperation was, moreover, repeated when, in reply to a further request
by the Committee of 20 September 2000, in a note verbale it again stated
that it wished to make no further comment on the question, referring to
its initial communication of 16 March 1998. The observations made by the
State party in that communication in no way clarify the acts of torture
complained of, since these acts were notified to the Committee after the
submission of the State's observations.
Consequently, the Committee
should take the authors' complaints into account and, on the basis of
all the elements before it, consider that there has been a violation of
articles 7 and 10 of the Covenant to the detriment of the prisoner Julio
Astillero.
(Signed): Hipólito
Solari Yrigoyen
Notes
1. 1 The authors do not explain
in their communication what such a treatment entails.
