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UPDATE (Philippines): A man is continuously held for six years without trial

November 3, 2008

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal Update: AHRC-UAU-064-2008

3 November 2008

[RE: UA-66-2005: PHILIPPINES: A person detained over 2 years without trial due to prosecutor's misconduct]
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PHILIPPINES: A man is continuously held for six years without trial

ISSUES: Right to liberty and security; arbitrary arrest and detention; administration of justice
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Dear friends,

The Asian Human Rights Commission (AHRC) has been informed that a detainee whom we reported previously to have been detained for over two years without charges filed in court has continue to suffer prolonged detention. It was only in October 2005, three years after his arrest and subsequent detention, that he was charged in court. However, after being arraigned, he has never faced trial due to frequent postponements of the court hearings.

UPDATED INFORMATION: (According to information from the Task Force Detainees of the Philippines – Mindanao (TFDP))

In our previous appeal (UA-66-2005), we reported that it was the negligence of the prosecutor and his failure to resolve the charges filed against Pegie Boquecosa. For over two years, Alfredo Barcelona Jr., a prosecutor attached with the Office of the Provincial Prosecutor in Alabel, Sarangani, has failed to conclude a resolution as to whether or not there is a probable cause to charge Boquecosa in court.

Boquecosa, who is accused of being a member of an illegal armed group, the New People's Army (NPA), was arrested on 11 September 2002 for charges of Robbery with Violence, Robbery, Multiple Frustrated Murder and Triple Murder. His continued detention at the Provincial Jail in Sarangani after his arrest, despite the lack of formal charges filed in court, was due to the prosecutor's repeated request to extend the deadline in the conclusion of his resolution.

Prosecutor Barcelona then claimed he has yet to gather further evidence and to obtain testimonies from other witnesses in resolving the case, which was contrary to the Rules of Court, Rule 112, section 3 (f) that states prosecutors must resolve the complaints within ten days after the preliminary investigation is completed. It must resolve whether or not if charges are to be filed in court.

Barcelona did not resolve the complaint for several months despite the completion of preliminary investigation.

Despite repeated orders from Jovencito Zuno, Chief State Prosecutor of the Department of Justice (DOJ) in Manila, for Barcelona to take immediate action and to resolve Boquecosa's case, he did not take any action. In May and August 2004, the chief state prosecutor and his assistant have written separate letters respectively to Barcelona ordering him resolve the case, but he remains unable to comply.

The complaint the TFDP-Mindanao filed against Barcelona at the Department of Justice (DoJ), who has oversight over the National Prosecution Service (NPS), was not acted upon either. Instead, Barcelona was transferred to another new assignment.

It was only on 20 September 2005 that the complaint against Boquecosa was resolved before the prosecutor's level in a joint order. It was in compliance of the 17 August 2005 letter from Raul M. Gonzales, DoJ secretary, directing Prosecutor Ringcar B. Pinote, officer-in-charge (OIC) at the Office of the Provincial Prosecutor, to resolve the case within five days from receipt without further delay. It was not Barcelona but another prosecutor who concluded the resolution.

After resolving the case, on 10 October 2005, four separate cases were filed at the Regional Trial Court (RTC) Branch 38 in Alabel, Sarangani against Boquecosa. These are criminal case no. 1934-05, for Frustrated Murder; criminal case no. 1935-05 for Frustrated Murder, criminal case no. 1936-05, for Frustrated Murder; and criminal case no. 1937-05, for Robbery with Violence against and/or intimidation of persons. The judge hearing the case is Jaime I. Infante.

On 10 January 2006, Boquecosa was arraigned for the charges filed on him. But since his arraignment he has never faced tried in court due to the frequent postponement of the scheduled hearings.

On 14 March 2006, the hearing was postponed because the judge hearing the case and court personnel were having a seminar. On July 4 of the same year, it was again postponed for lack of time to hear the case due to the absence of the prosecution witness. But on 19 April 2007 and 16 August 2007, despite the presence of the prosecution witness, it was again postponed for lack of time.

On 8 March of this year, the preliminary conference for the case of Frustrated Murder was conducted. In this case, the delay of the trial was due to the arrest of Boquecosa's co-accused. On August 13 and 27 of this year, the hearings were postponed due to the absence of the prosecution witness once again.

On September 17 of this year, the hearing was again postponed because the Judge and Prosecutor hearing the case had to attend a seminar. The court has scheduled to resume the hearing of the case for 17 November 2008.


SUGGESTED ACTION:
Please write letters to the concerned government agencies below urging them to ensure that Pegie Boquecosa's case is heard in court without further delay. An inquiry should also be conducted regarding the frequent postponement of the trial, and if it is proven that there have neglected their duties, they should be held to account.

The intervention from the Office of the Court Administrator (OCA), who has oversight regarding the pending cases filed in courts and the manners court judges are dispensing their duties, should also be sought in this case.
 
The AHRC is also writing to the Special Rapporteur on the independence of judges and lawyers and Working Group on arbitrary detention.

To support this appeal, please click here:

SAMPLE LETTER:

Dear ________,

PHILIPPINES: A man is continuously held for six years without trial

Name of the detainee: Pegie Boquecosa, 27 years old, he is accused of being a member of the New People's Army (NPA).
Place and date of his arrest: Barangay (village) Colon, Maasim, Sarangani in 11 September 2002. He is presently detained at the Provincial Jail in Alabel in the same province.
Status of the case: The cases are pending before Judge Jaime I. Infante of the Regional Trial Court (RTC), Branch 38 in Alabel, Sarangani. After his arraignment in 10 January 2006, the trial of his case have been repeatedly postponed due to the prosecution witnesses failing to appear in court, seminars of judges, prosecutors and the court personnel, amongst others.

I am writing to express my serious concern of the plight of the detainee, Pegie Boquecosa, who has been held for six years without trial. Boquecosa's prolonged detention is a result of failure on the part of prosecutors and judges hearing his case.

Firstly, Boquecosa was first arrested on murder charges on 11 September 2002 and subsequently detained at the provincial jail. However, it was only three years after that the complaint of murder was resolved before the prosecutor's level. It was only in 10 October 2005 also that the prosecutor's office has concluded and endorsed the filing of charges against him in court.

But even before it was filed in court, Boquecosa has already been needlessly detained without any formal charges. Also, the prosecutor who has failed to resolve his case, Alfredo Barcelona Jr. of the Office of the Provincial Prosecutor (OPP), has not been held to account for his failure and negligence. Even the complaint that was filed against him before the Department of Justice (DoJ), who has oversight over the functioning of the prosecution service, has not been acted upon.

And, in fact, despite the repeated orders and the notices upon Barcelona from the Office of the Chief State Prosecutor to resolve the case in 2004, he failed to do so. Prosecutor Barcelona was instead reassigned to another post leaving the case he was handling unfinished.

The case was resolve at the prosecutor's level only after the Officer-in-Charge of the Provincial Prosecutor's Office (PPO), Ringcar B. Pinote, acted on concluding the complaint after having receive a letter from Raul M. Gonzales, DoJ secretary, on 17 August 2005, directing him to resolve the case in five days.

It is disappointing that it took over three years before it was concluded before the prosecutor's office. And given this previous failure and negligence, the prosecutor's office once again failed in dispensing duties expected from them. Two years after Boquecosa's arraignment in court, his case was never tried due to frequent postponements of the scheduled trial.

On 14 March 2006, the hearing was postponed due to absence of the judge hearing his case and the court personnel because they had to attend a seminar during that time. For several occasions, the scheduled hearings has also postponed due to lack of time, the failure of the prosecution witness to appear in court, absence of the hearing judge, amongst others.

The actions the prosecutor's office and the judge hearing this case are doing are completely unacceptable. The frequent postponement of Boquecosa's trial, after enduring six years of detention without charges, should have not allowed and it should have not been tolerated. To postpone a trial due to the prosecutor's failure to ensure that their prosecution witnesses appears in court, for attending seminars and for lack of time to hear the case, cannot be justifiable at all.

The accused persons and detainees suffering needless should have been given relief or remedies to their plight; however, it is extremely disappointing that the failure of the prosecutors and judges of performing their duties, this detainee is the one suffering from it instead of having them held to account.

I trust that you will take immediate action on this case.

Yours sincerely,

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PLEASE SEND YOUR LETTERS TO:

1. Mrs. Gloria Macapagal-Arroyo
President
Republic of the Philippines
Malacanang Palace
JP Laurel Street, San Miguel
Manila 1005
PHILIPPINES
Fax: +63 2 736 1010
Tel: +63 2 735 6201 / 564 1451 to 80
E-mail: corres@op.gov.ph

2. Mr. Raul Gonzalez
Secretary
Department of Justice (DoJ)
DOJ Bldg., Padre Faura
1004 Manila
PHILIPPINES
Fax: +63 2 521 1614
E-mail: raulgonzalez_doj@yahoo.com

3. Justice Reynato S. Puno
Chief Justice
Supreme Court of the Philippines
New Supreme Court Building Annex Padre Faura St., Ermita,
1000 Manila
PHILIPPINES

4. Hon. Presbitero Velasco, Jr. Court Administrator 3rd Floor, new Supreme Court of the Philippines
Annex, Padre Faura St., Ermita,
1000 Manila
PHILIPPINES
Email: pio@supremecourt.gov.ph

5. Ms. Leila De Lima
Commissioner
Commission on Human Rights
SAAC Bldg., Commonwealth Avenue
U.P. Complex, Diliman
Quezon City
PHILIPPINES
Fax: +63 2 929 0102
Tel: +63 2 928 5655 / 926 6188
E-mail: chr.delima@yahoo.com or mtm_rodulfo@yahoo.com

Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrchk.org)

Document Type :
Urgent Appeal Update
Document ID :
AHRC-UAU-064-2008
Countries :
Issues :
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.