PHILIPPINES: Supreme Court fails to review death sentences of five torture victims seven years on

Dear friends,

The Asian Human Rights Commission (AHRC) writes with deep concern regarding the continued failure of the Supreme Court (SC) to review the case of five men, known as the “Abadilla 5”, who were sentenced to death by a local court eight years ago. The five men were sentenced for the murder of an influential police colonel, Rolando Abadilla, but have since protested their innocence of the charges against them. The court convicted them without giving them opportunity to submit further evidence that could have proved their innocence. An open admission by a rebel group claiming responsibility for the murder exonerating the five men was also not given due consideration in the trial. The Philippines has abolished capital punishment; therefore these five men might spend the remainder of their lives in prison should the Supreme Court uphold their sentences.

CASE DETAILS:

On August 1999, the accused Lenido Lumanog, Augusto Santos, Senior Police Officer 2 (SPO2) Cesar Fortuna, Rameses de Jesus and Joel de Jesus, were sentenced to death by the Regional Trial Court (RTC) in Quezon City for the murder of an influential police colonel, Rolado Abadilla. Abadilla was the chief of the now defunct Philippine Constabulary (PC) in Metro Command (Metrocom) during the Marcos regime. There were seven persons accused of Abadilla’s murder but the court acquitted two of them. RTC Judge Jaime Salazar Jr. convicted the five men based on the testimony of a lone alleged witness who claimed to have identified them as the gunmen that killed Abadilla on 13 June 1996 along Katipunan Avenue, in Quezon City.

The court’s decision convicting them has since been repeatedly challenged by the accused and their legal counsels. However, the court denied the accused’ motion to reconsider its decision and to conduct a new trial in order to allow them to present evidence that could proved their innocence. The evidence would also prove that it was a rebel group, the Alex Boncayao Brigade (ABB), who were responsible for Abadilla’s murder. None of the Abadilla 5 were ABB or had any links to the ABB. In February 2000, the case was transferred to the Supreme Court for mandatory review as required by the rules of criminal procedure involving death sentences. Regrettably, for the five years that the case had been pending before them for review it has failed to carry out its responsibilities.

Even though it has yet to conclude the mandatory review of the case, the Supreme Court in January 2005 transferred it to its subordinate court, the Court of Appeals (CA), for it to conduct the review. The case is presently under review at the CA’s 15th Division under Justice Marlene Gonzalez-Sison. The Supreme Court ruled that the appeals court had been given an authority based on its 7 July 2004 ruling involving another case entitled “The People of the Philippines vs. Efren Mateo y Garcia” or the Mateo ruling. The new ruling gives authority to the appeals court to conduct an intermediate review of cases involving death sentences. Once again, the case has been pending before the appeals court for two years but has not progressed.

There were also serious concerns regarding the undue transfer of the case to the appeals court from the Supreme Court. The accused’ legal counsels argued that the appeals court would have to begin from the start and get familiar with the case. It would eventually result in further delays of the review and undue suffering by the accused in jail as has happened in the past. Despite the repeated motions by the legal counsels for the Supreme Court to defer the transfer, the latter rejected their petitions and proceeded. Had the Supreme Court concluded the review promptly they could have done it but they have refused to do so.

Not only are there concerns of undue transfer and delays of the concluding review, there is also unequal treatment of cases involving capital punishment. While the motions of the five accused before the Supreme Court asking them not to transfer their case to the appeals court and for them to give early decision on the case subject for their review had been denied, in another case the situation was otherwise. In a case of “People vs. Francisco Larranaga, et al.” which was resolved on 21 September 2004 and 11 January 2005, the Supreme Court denied the accused’ motion to refer their case to the appeals court even though the Mateo ruling was already in effect. This Supreme Court’s ruling implied that it had the authority to decide full jurisdiction on cases subject to their review even without making transfers to the appeals court.

Had the Supreme Court proceeded with the mandatory review of this case, it would have given the five accused opportunities to present further evidence. In fact, the SC has already denied this opportunity twice when Lumanog in particular petitioned and then later motioioned for it. It could have ordered to transfer the case back to the local court for new trial where the accused would have been able to present evidence to prove their innocence. Should the case have been transferred to the local court so that the accused were able to present evidence, including the vital information that was not considered by the previous court hearing, this could have helped in the speedy resolution of their case.

However, this seemed unlikely to take place. The further failure by both the Supreme Court and appeals court to review this case promptly is cause for serious concern. Since the Supreme Court rejected the accused’ petition to defer the transfer and now that the case is with the appeals court for review, the accused and their legal counsels had already lost domestic remedies to challenge the Supreme Court’s undue transfer. Thus, the accused and their legal counsel will have to wait until the appeals court conclude its intermediate review before it is once again sent back to the Supreme Court for final review. This procedure would take years. However, if the appeals court reserses the trial court’s verdict and acquit the Abadilla 5, the case is finally concluded. Now the Abadilla 5 hopes that the appeals court takes action toward this direction.

BACKGROUND INFORMATION:

On 19 to 26 June 1996, days after Colonel Abadilla was murdered, the “Task Force Rolly”, a special police unit the government created to solve Abadilla’s murder, have started arresting several persons at random in Fairview in Quezon City. It is strongly believed that the arrest of each persons and their subsequent brutal torture in police secret detention have resulted to the false claims and pointing of innocent persons as the supposed accomplices to murder.

It was the Department of Interior and Local Government (DILG), which was headed by then Secretary Robert Barbers, who created the task force. It is composed of police officers namely Police Chief Superintendent Hercules Cataluna, Police Senior Superintendents Romulo Sales and Bartolome Baluyot, and several of their police officers. About six policeman who are among the respondents in the complaints of torture and human rights violations the five victims have filed have already died. Cataluna was the principal respondent.

On June 24 of the same year, most of the seven accused were presented to the media supposedly as the killers of Abadilla. It was theorize that since all of them are residents of Fairview, the supposed motive of the killing could have been masterminded by Abadilla’s political rival who also resides in the said area. But this theory was never proven in the court trial. The five men were accused of conspiring each other despite the fact that have no mastermind, no motive, price or reward or whatsoever that could have motivated them to commit the murder.

The five accused have likewise claimed being brutally tortured. While in police custody, they were electrocuted, suffocated with plastic bags, brutally beaten and assaulted, amongst others, forcing them to admit responsibility to the murder and to disclose their supposed accomplices. The medical records of the accused were also falsified by the police who conducted the medical examination to make it appear that they were not tortured. They declared the wounds were “self-inflicted” and “no evidence of any external physical injury” was seen from their bodies.

There are also serious doubts on the physical evidence that were recovered from the crime scene that reinforced the accused innocence. It is reported that the supposed murder handguns were never recovered. The ballistics examinations of the empty shells recovered likewise did not match to the handguns belonging to some of the accused.  The fingerprints taken from the car the gunmen had use for escape did not match to any of the five persons accused.

After the court ordered the conviction, one of the accused, Lenido Lumanog, filed a Motion for Reconsideration and then a Supplement that strongly argued as their defense reiterating the ABB’s involvement into the murder.  The motion to present additional evidence and motions for reconsideration and new trial, were however denied by Judge Salazar in his order on 25 January 2000.

Lumanog is a kidney transplant patient who had to face serious health risk inside his detention center while waiting for the review of their case to be concluded and to proved their innocence should there be new trial. His ailment is believed to have been the result of the harsh conditions in jail and the brutal torture he had suffered for days under police’ secret detention after his arrest in June 1996. Lumanog presently suffers lack of medical supplies and attention due to jail poor condition and lack of jail resources. There are serious concerns his condition could get worst if this is not adequately addressed.

There are various circumstances where the accused’ could have proved their innocence and upheld the ABB involvement but this were not given attention by the court. They argued that the ABB admission into Abadilla’s murder had been reinforced by the ballistics recovered from the crime scene that shows a match between the group’s previous acknowledge urban killings. The ABB also admitted and reiterated this matter in public in several occasions. Also in January 2000, an unidentified ABB personality turned over to Fr. Roberto Reyes an Omega watch taken from Abadilla’s body when he was shot four years after the murder in an effort to absolve the five accused and to reiterate the ABB’s responsibility to the murder. In separate affidavits and statements by a ranking ABB operative as mentioned in 27 May 1999 resolution of the National Amnesty Commission it also mentioned the plot to kill Abadilla. The court during the trial however did not consider all these.

Even though the Commission on Human Rights (CHR) had proven in their investigation that the accused were brutally tortured and recommended for the filing of criminal charges against the policemen involved in June 1996, the Office of the Chief State Prosecutor (OCSP) have failed to act on their recommendation promptly. The prosecutor assigned to handle the case, State Prosecutor Marilyn Campomanes, has failed to resolve the preliminary investigation of the complaint for a period of five years. Campomanes was supposed to establish probable cause to hold the policemen for trial. But when the OCSP resolve the complaint on 21 August 2001, it ordered to dismiss the complaint under the ground of “sub judice rule”.

The OCSP resolution argued that since the accused’ murder case is still pending for review by Supreme Court they find it appropriate not to “unduly influence or bend the mind of the Supreme Court on deciding the murder case”. It in effect resolved to refrain from conducting the preliminary investigation of the victim’s complaint of torture and human rights violations against the policemen. It took the OCSP five years to decide that the preliminary investigation of the case could not be acted upon.

But on 8 January 2003, the preliminary investigation of the complaint was ordered to be reopened by former acting Justice Department Secretary Ma. Merceditas Gutierrez. The offences mentioned that could be charged against the policemen involved however did not include allegations of torture. The said charges include only for violations of Articles 263, 286, 124 and 125 of the Revised Penal Code (RPC) and the Republic Act RA 7438. These articles constitute violations for grave coercion, physical injuries, arbitrary detention, delay in the delivery of detained persons, rights of persons arrested and detained under custodial investigation.

When the accused legal counsel filed a motion before the Department of Justice urging them to look into allegations of torture and to also file appropriate charges, no response have so far been received on this matter. Later it was found out that the case was already turned over to one of the offices of the Office of the Ombudsman. Since the complaints were transferred to the Ombudsman, there has not been substantial progress known. The policemen involved have so far not been charged yet in court despite the complaint filed and pending for nearly eleven years.

Not only the OCSP and DoJ has caused enormous delays on acting the accused complaint or torture and human rights violations, the State Prosecutor in charged in handling the case, Campomanes, has likewise showed negligence and lack of competence to resolved the case promptly. Campomanes’ improper handling of the case’ documents likewise resulted to the loss of some of its files.

Campomanes have been charged with administrative case because of her negligence and lack of competence. It is reported that Campomanes in some occasion took the case’ records to her home which is illegal. Although the charges, which includes undue delay in the resolution of the preliminary investigation, for violating the complainants’ right to speedy disposition of their cases and for mishandling and missing records of the case, have been filed against her these complaints did not show any progress.

In March 2006, a complaint was filed before the United Nation’s Human Rights Committee under the Optional Protocol complaint procedure regarding the Supreme Court’s undue transfer of the review of the case to the Court of Appeals that resulted to the further delay. In their complaint, they clearly pointed out that the high court’s undue transfer of the case to its subordinate court, even though it could have conclude the review of the case, demonstrates the lack of domestic judicial remedies to challenge the high court’s decision. This could have at least prevented further court delays. The complaint was about the undue transfer of a death penalty review case and not about the death penalty decision.

SUGGESTED ACTION:
Please write letters to the authorities below requesting their intervention to ensure that the review of this case is concluded promptly. The Court of Appeals under the 15th Division, where this case is pending for review, should consider this as a priority. The Supreme Court must be urged to consider reviewing their rules regarding review of cases and procedures on transfers to appeals court to prevent further delays. It must implement rules and procedures equally to all cases pending before them.

The Office of the Ombudsman and the Department of Justice (DoJ) must also ensure the immediate filing of appropriate criminal charges against the policemen involved, in particular the allegations of torture and violations of human rights without delay. The administrative complaint against the State Prosecutor Marilyn Campomanes for negligence and failure to resolve this case must also be acted upon. Appropriate charges must be filed against her in court and sanctions imposed.

The condition and welfare of these five persons, in particular Lenido Lumanog, who is a kidney transplant patient, presently detained at the New Bilibid Prison, Muntinlupa City, Metro Manila, must be ensured that they get proper treatment while in detention. Adequate medicines and medical attention must be afforded to him without delay. Should there be a need to transfer him to proper health care agencies to maintain his health and prevent worsening of his health condition it must be done so.

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