Philippines
05.07.06
Urgent Interventions
Philippines: Extrajudicial Killing and Impunity
Case PHL 290306.1 - Follow up to case PHL 290306
Extrajudicial Killing / Impunity
Geneva, 5 July 2006
The International Secretariat of the World Organisation Against Torture (OMCT) has received new information on the following situation in the Philippines.
According to the information received, the honourable Judge Justino G. Aventurado issued an order on 20 March 2006 to the Prosecution Office to submit additional evidence. This order is in accordance with section 6 of Rule 112 of the Revised Rules of Court, which states that: “when [a] warrant of arrest may be issued”; “By the Regional Trial Court - within ten (10) days from the filing of the complaint or information, the Judge shall personally evaluate the resolution of the Prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest”. “In case of doubt on the existence of probable cause, the Judge may order the Prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within 30 days from the filing of the complaint or information”.
It is reported that on 25 April 2006, Mr. Talib Japalali, the brother of Mr. Bacar Japalali, received an order from the City Prosecutor’s Office which was sent on 4 April 2006 in which he was requested to submit additional evidence within five days. Following this order, Mr. Talib Japalali submitted additional evidence to both the Prosecutor’s Office and the Court on 28 April 2006.
It is reported that with regard to the death of Ms. Carmen Japalali, Sergeant Serafin Jerry Napoles alleges to have ordered his men to bring Ms. Carmen Japalali to the hospital as she was seriously injured. On the other hand it is stated by Mr. Ladia, an eyewitness, that the military had opened fire while he was trying to get Ms. Japalali to the hospital. Judge Aventurado decided on 11 May 2006 to let the affidavit of Sergeant Napoles prevail over the affidavit of Mr. Ladia, resulting in the order to the Ombudsman for the Military to change the charge from murder to homicide.
It is reported that although the family and support groups of late spouses Japalali persistently contacted the Regional Trial Court (RTC), Branch 2, during one week, to inquire if the arrest warrants for the allegedly involved military men were issued, no arrest warrant was issued. Court employees informed the family and support groups that should they be able to identify the accused military men, an arrest warrant might be issued, otherwise the case remained pending. Furthermore, the decision of Judge Aventurado to change the charges from murder to homicide raises serious doubts about his impartiality. Following this, the family and support groups of Bacar and Carmen Japalali demonstrated against Judge Aventurado on 30 May 2006 near the Hall of Justice Office, questioning his impartiality, his independence and his performance of his duty as a presiding Judge and member of the Judicary. Furthermore, it is alleged that Judge Aventurado is increasingly delaying the process by employing delaying tactics which is a violation of the Code of Judicial Conduct. Canon 1, Rule 1.02 and Canon 3, Rule 3.05 stipulates that a judge should administer justice impartially and should dispose of a court’s business promptly by deciding on a prescribed period of time for this to be done.
According to the information received, the motive for the killing was an intelligence report stating that Mr. Bacar Japalali and his spouse were lawless elements. Therefore, the military was tasked to conduct combat control patrol operation by their commanding officer.
It is reported that Mr. Talib Japalali, the brother of Mr. Bacar Japalali, filed murder charges on 10 September 2004 against Sgt. Napoles and his 31 men involved in the killing of the couple before the City Prosecutor in Tagum city. On 4 October 2004, TFDP initiated in filing a complaint at the office of the Omboudsman for the Military. On 25 October 2004, Mr. Rodolfo Baluyo, the father of Mrs. Carmen Japalali, executed an affidavit before the Commission on Human Rights in Davao City. On 17 December 2004, Prosecutor Francisco Rivero sent his resolution to the Office of the Ombudsman for Military for review and recommendation. He found the respondents Military personnel not liable for the death of the couple, as there is allegedly no sufficient proof that the soldiers committed abuse in the performance of their duty. Almost a year later, on 21 September 2005, Prosecutor Beda A. Epres, Graft Investigation and Prosecution Officer II, office of the Ombudsman for the Military, disapproved the resolution under consideration of the City Prosecution office of Tagum City. Prosecutor Epres found the following:
a. Perusal of the records show that the body of deceased Bacar Japalali was still in bed inside a mosquito net and per chemistry report no. C-026-2004 DN, carried out on 29 September 2004, the qualitative examination conducted on the pair of paraffin cast taken from both hands of the deceased yielded a negative result to the test for gunpowder nitrates. These facts would definitely belie the respondent's claim that there was a firefight.
b. There exists a unity of purpose and unity in the execution of the unlawful objective of all the enlisted personnel who participated in the combat operation, should be held liable for two counts of Murder for the death of spouses Bacar and Carmen Japalali as the killing was attended by treachery and with the aid of armed men.
On 24 January 2006, the case was docket as criminal case # 14958 and 14959, filed at the Regional Trial Court of Tagum City and raffled at RTC branch 2 under honourable Judge Justino G. Aventurado. It was only on 9 February 2006 that the case folder was handed to the honourable Judge Justino G. Aventurado for review and study. Almost one month later, on 3 March 2006, TFDP staff went together with Mr. Talib Japalali, the complainant, to the Judge office to inform if warrants of arrests were already issued against the accused, but the officer-in-charge said that the case folder was still at the office of the Judge for study. On 8 March 2006, TFDP handed a follow-up letter to the honourable Judge Aventurado to inquire again if arrest warrants were issued, but again they were informed that the case folder was still at the table of the Judge for study. On 15 March 2006, when TFDP staff called to the office of the honourable Judge to follow-up on the case, they received again the same answer as they had before on 3 and 8 March 2006.
i. Order a thorough and impartial investigation into these events, in order to identify all those responsible, bring them to trial and apply to them the civil, penal and/or administrative sanctions provided by law;
ii. Guarantee the respect of human rights and the fundamental freedoms throughout the country in accordance with national laws and international human rights standards.
Please also write to the embassies of the Philippines in your respective country.
***
Geneva, 5 July 2006
Kindly inform us of any action undertaken quoting the code of this appeal in your reply.
Extrajudicial Killing / Impunity
Geneva, 5 July 2006
The International Secretariat of the World Organisation Against Torture (OMCT) has received new information on the following situation in the Philippines.
New information
The International Secretariat of OMCT has received new information from the Task Force Detainees of the Philippines (TFDP), a member of the OMCT network, on the case of Mr. Bacar Japalali and Ms. Carmen Japalali.According to the information received, the honourable Judge Justino G. Aventurado issued an order on 20 March 2006 to the Prosecution Office to submit additional evidence. This order is in accordance with section 6 of Rule 112 of the Revised Rules of Court, which states that: “when [a] warrant of arrest may be issued”; “By the Regional Trial Court - within ten (10) days from the filing of the complaint or information, the Judge shall personally evaluate the resolution of the Prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest”. “In case of doubt on the existence of probable cause, the Judge may order the Prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within 30 days from the filing of the complaint or information”.
It is reported that on 25 April 2006, Mr. Talib Japalali, the brother of Mr. Bacar Japalali, received an order from the City Prosecutor’s Office which was sent on 4 April 2006 in which he was requested to submit additional evidence within five days. Following this order, Mr. Talib Japalali submitted additional evidence to both the Prosecutor’s Office and the Court on 28 April 2006.
It is reported that with regard to the death of Ms. Carmen Japalali, Sergeant Serafin Jerry Napoles alleges to have ordered his men to bring Ms. Carmen Japalali to the hospital as she was seriously injured. On the other hand it is stated by Mr. Ladia, an eyewitness, that the military had opened fire while he was trying to get Ms. Japalali to the hospital. Judge Aventurado decided on 11 May 2006 to let the affidavit of Sergeant Napoles prevail over the affidavit of Mr. Ladia, resulting in the order to the Ombudsman for the Military to change the charge from murder to homicide.
It is reported that although the family and support groups of late spouses Japalali persistently contacted the Regional Trial Court (RTC), Branch 2, during one week, to inquire if the arrest warrants for the allegedly involved military men were issued, no arrest warrant was issued. Court employees informed the family and support groups that should they be able to identify the accused military men, an arrest warrant might be issued, otherwise the case remained pending. Furthermore, the decision of Judge Aventurado to change the charges from murder to homicide raises serious doubts about his impartiality. Following this, the family and support groups of Bacar and Carmen Japalali demonstrated against Judge Aventurado on 30 May 2006 near the Hall of Justice Office, questioning his impartiality, his independence and his performance of his duty as a presiding Judge and member of the Judicary. Furthermore, it is alleged that Judge Aventurado is increasingly delaying the process by employing delaying tactics which is a violation of the Code of Judicial Conduct. Canon 1, Rule 1.02 and Canon 3, Rule 3.05 stipulates that a judge should administer justice impartially and should dispose of a court’s business promptly by deciding on a prescribed period of time for this to be done.
Reminder of the situation
According to the information received, Mr. Bacar Japalali (37) and his wife Mrs. Carmen Japalali (19) were extrajudicial executed by Sgt. Serafin Jerry Napoles and 31 other members of the 404th Infantry Battalion, Philippine Army, on 8 September 2004 at Barangay Bincungan, Tagum City, island of Mindanao. On the morning of 8 September 2004, Mr. Bacar Japalali and his wife Carmen were sleeping inside their house. When one of their neighbours went outside to urinate, he saw several soldiers in a firing position, carrying firearms and surrounding them as well as the house of Mr. Bacar Japalali and his spouse Carmen. The neighbour rushed back into the house and he and his wife dropped to the floor for safety as the military opened fire on the two houses. According to the neighbours, the gunfire lasted for about ten minutes. Mr. Bacar Japalali died on the spot due to fatal gunshot wounds. His wife Carmen managed to get out of the house and shouted for help. She was then again shot by a soldier and fell to the ground. Her neighbour brought her to the Mission hospital in Tagum City where she died while undergoing treatment. She was 3-months pregnant at that time.According to the information received, the motive for the killing was an intelligence report stating that Mr. Bacar Japalali and his spouse were lawless elements. Therefore, the military was tasked to conduct combat control patrol operation by their commanding officer.
It is reported that Mr. Talib Japalali, the brother of Mr. Bacar Japalali, filed murder charges on 10 September 2004 against Sgt. Napoles and his 31 men involved in the killing of the couple before the City Prosecutor in Tagum city. On 4 October 2004, TFDP initiated in filing a complaint at the office of the Omboudsman for the Military. On 25 October 2004, Mr. Rodolfo Baluyo, the father of Mrs. Carmen Japalali, executed an affidavit before the Commission on Human Rights in Davao City. On 17 December 2004, Prosecutor Francisco Rivero sent his resolution to the Office of the Ombudsman for Military for review and recommendation. He found the respondents Military personnel not liable for the death of the couple, as there is allegedly no sufficient proof that the soldiers committed abuse in the performance of their duty. Almost a year later, on 21 September 2005, Prosecutor Beda A. Epres, Graft Investigation and Prosecution Officer II, office of the Ombudsman for the Military, disapproved the resolution under consideration of the City Prosecution office of Tagum City. Prosecutor Epres found the following:
a. Perusal of the records show that the body of deceased Bacar Japalali was still in bed inside a mosquito net and per chemistry report no. C-026-2004 DN, carried out on 29 September 2004, the qualitative examination conducted on the pair of paraffin cast taken from both hands of the deceased yielded a negative result to the test for gunpowder nitrates. These facts would definitely belie the respondent's claim that there was a firefight.
b. There exists a unity of purpose and unity in the execution of the unlawful objective of all the enlisted personnel who participated in the combat operation, should be held liable for two counts of Murder for the death of spouses Bacar and Carmen Japalali as the killing was attended by treachery and with the aid of armed men.
On 24 January 2006, the case was docket as criminal case # 14958 and 14959, filed at the Regional Trial Court of Tagum City and raffled at RTC branch 2 under honourable Judge Justino G. Aventurado. It was only on 9 February 2006 that the case folder was handed to the honourable Judge Justino G. Aventurado for review and study. Almost one month later, on 3 March 2006, TFDP staff went together with Mr. Talib Japalali, the complainant, to the Judge office to inform if warrants of arrests were already issued against the accused, but the officer-in-charge said that the case folder was still at the office of the Judge for study. On 8 March 2006, TFDP handed a follow-up letter to the honourable Judge Aventurado to inquire again if arrest warrants were issued, but again they were informed that the case folder was still at the table of the Judge for study. On 15 March 2006, when TFDP staff called to the office of the honourable Judge to follow-up on the case, they received again the same answer as they had before on 3 and 8 March 2006.
Action requested
Please write to the authorities in the Philippines urging them to:i. Order a thorough and impartial investigation into these events, in order to identify all those responsible, bring them to trial and apply to them the civil, penal and/or administrative sanctions provided by law;
ii. Guarantee the respect of human rights and the fundamental freedoms throughout the country in accordance with national laws and international human rights standards.
Addresses
- Mrs. Gloria Macapagal-Arroyo, President of the Republic of the Philippines, New Executive Building, Malacañang Palace Compound, J.P. Laurel St., San Miguel, Manila, Philippines, Fax: +632 735 6192; +632 736 1010; Email: opnet@ops.gov.ph; corres@op.gov.ph
- Secretary Avelino Cruz Jr., Department of National Defense, 3rd Floor, DND Building, Camp Aguinaldo, EDSA, Quezon City, Philippines, Fax: +632 911 6213, Email: sndcruz@dnd.gov.ph; ajcruz@dnd.gov.ph
- Hon. Raul M. Gonzalez, Secretary, Department of Justice, Padre Faura Street, 1004, Manila, Philippines, Telefax: +632 521-1614, Email: sad@doj.gov.ph
- Hon. Purificacion Valera Quisumbing, Chairperson, The Commission on Human Rights, SAAC Building, Commonwealth Avenue, U.P. Complex, Diliman, Quezon City, Philippines, Fax: +632 929-0102, Email: drpvq@chr.gov.ph
- Arturo C. Lomibao, Police Director General, Chief, Philippine National Police, National Headquarters, PNP Camp Crame, Quezon City, Philippines, Tel: +632 726-4361/726-4366/726-4329 Fax: +632 724-8763
- Hon. Loretta Ann Rosales, Chairperson of the Committee on Human Rights, House of Representatives, Batasan Hills, Quezon City, Philippines, Telefax: +632 931 6288, Email: conglapr@nsclub.net
- Hon. Francis Pangilinan, Senator, The Senate, Rm. 526 GSIS Bldg., Financial Center, Roxas Blvd., Pasay City, Philippines, Fax: +632 552-6747, Email: kilosko2004@yahoo.com
- Hon. Justino Aventurado, Presiding Judge, Regional Trial Court, branch 2, Tagum City, Philippines, Tel: +63 84 218 14 30
- Ambassador Enrique A. Manalo, Permanent Mission of the Philippines to the United Nations in Geneva, Avenue Blanc 47, 1202 Geneva, Switzerland, Fax: +41 (0)22 716 19 32, Email: mission.philippines@ties.itu.in
- Philippine Embassy in Brussels, Avenue Moliere / Molierelaan 297, 1050 Brussels, Belgium, Tel; +32 (0)2 340 33 77 / (0)2 340 33 78, Fax: +32 (0)2 345 64 25.
Please also write to the embassies of the Philippines in your respective country.
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Geneva, 5 July 2006
Kindly inform us of any action undertaken quoting the code of this appeal in your reply.