JULIUS C.

RAMA
HUMAN RIGHTS LAW
JD 2-3 WEDNESDAY 5:00 7:00 PM

1. Piandiong v. The Philippines, Case No. 869/1999

Facts:

On 7 November 1994, Piandiong, Morallos and Bulan were convicted of robbery

with homicide and sentenced to death by the Regional Trial Court of Caloocan
City. The Supreme Court denied the appeal, and confirmed both conviction and
sentence by judgement of 19 February 1997.

Counsel complains now 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. Also that the death penalty
was unconstitutional and should not have been imposed for anything but the
most heinous crime.

Counsel further states 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 Piandiong,
Morallos and Bulan actually looked.

Defense:

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.

The State party also comment that, the author in submitting himself to the
President's power to grant pardon, the convicts conceded to the decision of the
Supreme Court. By having done so, it is highly inappropriate that they would
then go back to the Human Rights Committee for redress.

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.

View

Authors claimed that the identification during the police line-up was irregular,
since the first time around none of the eyewitnesses recognized them. The Court
rejected their claim in this respect, as it was uncorroborated by any disinterested
and reliable witness. Moreover, the Court considered that the accused were
identified in Court by the eyewitnesses and that this identification was sufficient.
The Committee recalls its jurisprudence that it is generally for the courts of
States parties, and not for the Committee, to evaluate the facts and evidence in
a particular case. The Committee finds there is no basis for holding that the in-
court identification of the accused was incompatible with their rights under
article 14 of the Covenant.

Rights Violated:

The rights violated are right to due process of law, the right to life, liberty and
property and the right to be presumed innocent. The author made point on the
irregularity of the identification parade. It made allegation on the reliability of the
 fairness of the procedure relative to such. The state party should have been
prudent in the execution of the judgment so that due process as the top of
defense of an accused will not be violated. Granting arguendo that the author
has been identified in the trial by the witness himself, it cannot be gain said that
there is no defects on the police line-up. By considering the details and facts
before it, the state party should have been vigilant in the trial especially in
imposing death penalty upon the author.
JULIUS C. RAMA
HUMAN RIGHTS LAW
JD 2-3 WEDNESDAY 5:00 7:00 PM

2. Larraaga v. The Philippines, Case No. 1421/2005

Facts:

On 5 May 1999, the author, along with six co-defendants, was found guilty of
kidnapping and serious illegal detention of Jacqueline Chiong by the Special
Heinous Crimes Court in Cebu City and was sentenced to reclusion perpetua. On
3 February 2004, the Supreme Court of the Philippines found the author also
guilty of kidnapping and serious illegal detention with homicide and rape of
Marijoy Chiong and sentenced him to death. He was also sentenced to reclusion
perpetua for the simple kidnapping and serious illegal detention of Jacqueline
Chiong.

The author alleges a violation of article 6 on the ground that the Supreme Court
automatically sentenced him to capital punishment under article 267 of the
Revised Penal Code. Therefore, it did not take into account any possible
mitigating circumstances which may have benefited him, such as the age at the
time of the commission of the offense.

In addition, the author argues that there was no equality to call and examine
witnesses in violation of article 14, paragraph 3(e). The trial judge refused to
hear several defense witnesses and effectively withheld evidence indicating that
another person or persons may have committed the crimes of which the author
was accused.

The author also 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, especially the Chinese-Filipino
community, of which the victims are members and which argued for the
execution of the defendants.

Finally, the author alleges violations of articles 9(3), 14(3) and 14(5), because
there were undue delays in the proceedings. The proceedings as a whole were
conducted with undue delay. Therefore, the delay between charge and final
decision was seven years and ten months. For the author, such delay is
inexcusable since there was little investigation required, and the evidence
consisted merely of direct eyewitness testimony and forensic evidence.

Defense:

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. The Supreme Court established conspiracy in this case.

With regard to the allegation that there was no equality of arms to call and
examine witnesses, the State party recalls that it is the responsibility of the trial
judge to ensure that there is an orderly and expeditious presentation of
witnesses and that time was not wasted.
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 judgment demonstrates that there was clear evidence of homicide and
rape. 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 of undue delay, the State party argues that the
initial delay was due to the fact that the author sought to annul the charges filed
against him. It explains that each defendant filed a separate appeal and that the
Supreme Court had to first dispose of all collateral issues which had been raised
by the author and his co-defendants before it could finally rule on their appeal. It
submits that, given the complexity of the case and the fact that the author
availed himself of all the remedies available, the courts have acted with all due
dispatch.

View:

The Committee recalls its jurisprudence that the automatic and mandatory
imposition of the death penalty constitutes an arbitrary deprivation of life, in
violation of article 6, paragraph 1, of the Covenant, in circumstances where the
death penalty is imposed without and possibility of trading 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.

Concerning the authors claim that there was no equality of arms because his
right to cross-examine prosecution witnesses was restricted, the Committee
reaffirms that it is for the national courts to evaluate facts and evidence in a
particular case. However, bearing in mind the seriousness of the charges
involved and based on the circumstances presented before it there was in fact a
violation of article 14, paragraph 3 (e), of the Covenant.

As to the authors claim that his rights were violated under article 14, paragraphs
1, because the trial court and the Supreme Court were not independent and
impartial tribunals, clouding their judgments based on outside pressure from
powerful social groups. The committee finds that there is no impartiality on the
trial and appeal proceeding.

Nevertheless, in this case, the committee finds that the delay was caused by the
authorities and that no substantial delay can be attributable to the author. In any
case, the fact that the author appealed cannot be held against him. Article 14,
paragraph 3(c), requires that all accused shall be entitled to be tried without
undue delay, and the requirement applies equally to the right of review of
conviction and sentence guaranteed by article 14, paragraph 5.

Rights Violated:

The rights violated are right to speedy disposition of cases, the right to due
process of law, the right to life, liberty and security of persons, the right to
effective judicial remedy and right to be presumed innocent. In the case, the
undue delay of judgment not imputable against the author is a violation of right
to be tried without delay and the right to speedy disposition of cases. Also, the
court in disregarding other witnesses that the author have produced for the
reason that it will only further delay the trial and that the testimony of other who
were not considered will only be the same as to that of the others made clear to
the violation of the authors right to due process.
JULIUS C. RAMA
HUMAN RIGHTS LAW
JD 2-3 WEDNESDAY 5:00 7:00 PM

3. Baroy v. The Philippines, Case No. 1045/2002

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), in conjunction with article 266B (2), 2 of the
Revised Penal Code. It is alleged that on the date of the offense, the author
would have been 14 years, 1 month and 14 days old, by virtue of being born on
19 January 1984.

However, 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 nighttime and
confederation, and no mitigating circumstances.

4 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.

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 special treatment as a minor and was detained
with adult criminals.

The author further claims a violation of article 14, in particular paragraph 4. 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 defense.

Defense:

The claim of minority was rejected, finding it "obviously fabricated" as a result of

his mother's coaching. The State party points out that as 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 claim continues to be pending and should be dismissed for
non-exhaustion of domestic remedies.

View:

The Committee recalls that its position in relation to issues of exhaustion of

domestic remedies is that, absent exceptional circumstances, this aspect of a
registered communication is to be assessed at the time of its consideration of
the case. In the present case, accordingly, 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.

Rights Violated:

There has been a violation of the authors right to due process by not
thoroughly considering the age of the author at the time of the commission of
the offense which is a special mitigating circumstances that would lower the
amount of penalty to be impose by the Court.

JULIUS C. RAMA
HUMAN RIGHTS LAW
JD 2-3 WEDNESDAY 5:00 7:00 PM

4. Pimentel v. The Philippines, Case No. 1320/2004

Facts:

In September 1972, the first author was arrested by order of President Marcos
two weeks after the declaration of martial law in the Philippines and found buried
up to his neck in a remote sugar cane field and abandoned, but was
subsequently rescued. Also, in 1974, the second authors son was arrested by
order of President Marcos and taken into military custody who was tortured
during interrogation and kept in detention, without ever being charged.

In April 1986, the authors, together with other class members, brought an action
against the Marcos estate. On 3 February 1995, a jury at the United States
District Court in Hawaii awarded a total of US$ 1,964,005,859.90 to the 9,539
victims (or their heirs) of torture, summary execution and disappearance. The
jurors found a consistent pattern and practice of human rights violations in the
Philippines during the regime of President Marcos

The authors now 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. The communication also appears to raise issues under article 14,
paragraph 1, of the Covenant.

Defense:

On 12 May 2005, the State party submitted that the communication is

inadmissible for failure to exhaust domestic remedies. It submits that, on 14
 April 2005, the Supreme Court handed down its decision in Mijares et al. v. Hon.
Ranada et al., 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.

View:

The committee noted that the Regional Trial Court and Supreme Court spent
eight years and three hearings considering this subsidiary issue and that the
State party has provided no reasons to explain why it took so long to consider a
matter of minor complexity. For this reason, 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 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. The State party is under an obligation to ensure
that similar violations do not occur in the future.

Rights Violated:

The rights violated is the right to speedy disposition of cases. As correctly

provided by the committee, spending eight years to rule on a subsidiary issue on
the payment of filing fee and without including in the judgment the
enforceability of the judgment in foreign country is a clear violation of the right
to try the case without undue delay. The length of time and providing any reason
thereto is unreasonable.

JULIUS C. RAMA
HUMAN RIGHTS LAW
JD 2-3 WEDNESDAY 5:00 7:00 PM

5. Marcellana and Gumanoy, Case No. 1560/2007

Facts:

Ms. Marcellana was the former Secretary General of Karapatan-Southern Tagalog

(a human rights organisation) and Mr. Eddie Gumanoy was the former
chairperson of Kasama Tk (an organization of farmers). 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, armed men tied them up and they were taken into a vehicle.
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 (DOJ). By resolution of 17 December 2004, the DOJ dismissed the
complaint and the charges against one of the alleged perpetrators on the ground
of insufficient evidence.

The authors commented that the requirement of exhaustion of domestic

remedies does not apply when remedies are unreasonably prolonged or
ineffective.

Defense:

The State party claims that the authors have not exhausted all available
domestic remedies. It states that, although the DOJ complaint was dismissed in
December 2004, it could have been appealed to the Secretary of Justice. Should
the Secretary of Justice act on the basis of grave abuse of discretion, this
decision could be challenged by way of certiorari under Rule 65 of the 1997
Rules of Civil Procedure.

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.

Furthermore, the State party contends that the communication fails to establish
how the State party has violated the Covenant. The establishment of the
independent Melo Commission to investigate extrajudicial killings shows the
State partys resolve to respond to the problem.

View:

In the present case, though over five years have elapsed since the killings took
place, the State partys authorities have not indicted, prosecuted or brought to
justice anyone in connection with these events. 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 has not been provided with any
information, other than about initiatives at the policy level, as to whether any
investigations were carried out to ascertain the responsibility of the other
members of the armed group identified by the witnesses.

In addition, 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, 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.

Rights Violated:

The rights violated are the right to life, liberty and security of person, the right to
due process of law and the right to effective judicial remedy. In the case, the
idea that the authors are constantly being watched by someone without action
of the state party to prevent such, proves that they failed on their obligation to
ensure that the citizens right to security is always upheld. Also, by dismissing
the case due to insufficiency of evidence against the military personnel involved
even if the authors in fact testified against them violates the right to due
process. The author must have been given the benefit of the doubt surrounding
the issue considering that they are in a place swarming with military personnel
 and the only possible conclusion to the matter is that such personnel are
somewhat involved in the kidnapping and murder of the author herein.

JULIUS C. RAMA
HUMAN RIGHTS LAW
JD 2-3 WEDNESDAY 5:00 7:00 PM

6. Lumango and Santos, Case No. 1466/2006

Facts:

The authors and three other individuals were sentenced to death for the murder
of former Colonel Rolando Abadilla, occurred on 13 June 1996, by judgment of
the Regional Trial Court (RTC) of Quezon City, Branch 103. After their motions for
reconsideration and new trial were rejected by the RTC in January 2000, the case
was transmitted to the Supreme Court in February 2000 for automatic review
(appeal) of the death penalty.

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.
The authors indicate that their complaint does not concern the judgment of the
RTC of Quezon City or any other deliberations on the merits of their conviction.
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.

Defense:

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 (Sections 3
and 10 of Rule 122), providing that when the death penalty is imposed, the case
must be considered by the Court of Appeals for Review. This amendment was
prompted by the judgment in People of the Philippines v. Mateo of 7 July 2004,
after which all death penalty cases which had not yet been decided by the
Supreme Court were automatically transferred to the Court of Appeals for review
and consideration.

On the authors claim that their right to equal protection before the law was
violated, because in a similar case (The People of Philippines v. Francisco
Larraaga), the Supreme Court denied Larraagas motion to refer his case to
the Court of Appeals and decided the case itself, the State party notes that
People v. Larraaga was decided by the Supreme Court on 3 February 2004,
i.e. five months before the Mateo ruling.

View:

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 on
18 January 2005. 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 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.

Rights Violated:

The rights violated are the right to the speedy disposition of cases without undue
delay, right to due process law and the right to effective judicial remedy. The
transfer of the case from the Supreme Court to the Court of Appeals added an
additional period of time to dispose the case when it can do so by the higher
court since it has the power to review cases adjudged by the lower courts. There
should be effective appeal and the fact the their case was already pending
before the Supreme Court for five years and to transfer it to the Court of Appeals
would render such appeal as ineffective.