PHILIPPINES: Prosecutor’s inaction to file murder charges against military officers who killed two people 

Dear friends,

The Asian Human Rights Commission (AHRC) has received information from the Task Force Detainees of the Philippines (TFDP) that the City Prosecutor in Tagum City, Mindanao, who investigated the alleged killing of a couple by military on 8 September 2004, has not filed murder charges in court, despite concluding his resolution to the case. The prosecutor instead forwarded the case to the Office of Ombudsman for Military for review, recommendation and approval to his findings. The Ombudsman has no authority to intervene the affairs of the Court.

As stipulated in the Philippine Rules of Court, Rule 112, Section 4, records of the case can only be forwarded to the Provincial, City fiscal and Chief State Prosecutor, for them to act as to whether or not a case should be filed. The prosecutor’s inaction is an apparent attempt to delay the judicial process. He has also refused to provide the complainants a copy of his resolution, which he should have done. By not doing so, he has deprived the complainants of their right regarding access to documents pertaining to official decisions as provided in Bill of Rights, of the 1987 Constitution.

The Commission on Human Rights in Davao City, also failed to conduct an investigation in the area following the filing of a complaint before their office by the complainant on October 2004. It is the Commission’s duty to investigate complaints and make necessary recommendation following this.

We urge your immediate intervention in this case. Please call for the attention of the Office of the State Prosecutor of the Department of Justice (DOJ) to intervene into the prosecutor’s inaction to file murders charges against the perpetrators. Also please ask for an inquiry into the prosecutor’s irregularities in dealing with the case, and his conduct displayed towards the complainants. Please visit also our previous appeals regarding conduct of prosecutors in dealing cases (UA-66-2005, UA-69-2005)

Further please ask the Commission on Human Rights to take immediate steps to investigate this case, resolve it without delay and recommend the filing of criminal charges in Court and administrative charges to the Ombudsman of Military.

Urgent Appeals Desk
Asian Human Rights Commission (AHRC)
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DETAILED INFORMATION:

Name of victims: Bacar Japalali and his wife Carmen (3 months pregnant at the time of her death)
Name of complainant: Talib Japalali, brother of the victim
Date and place of incident: 8 September 2004, Barangay Bincungan, Tagum City
Alleged perpetrators: Sergeant Serafin Jerry Napoles, and 31 other members of the 404th Infantry Battalion, Philippine Army
Name of the prosecutor: Francisco Rivero, Office of the City Prosecutor
Status of the case: No murder charges have been filed in Court against the perpetrators. The prosecutor did not act independently to initiate the filing. He instead sought the opinion from Ombudsman for Military on his resolution.

Based on the testimony of two witnesses:

On the morning of 8 September 2004, victims Bacar Japalali and his wife Carmen were inside their house in Barangay Bincungan, Tagum City sleeping while their neighbor, Ladia and Padama, were in an adjacent house. When Ladia went outside to urinate, he saw several soldiers, in a firing position, carrying firearms and surrounding them as well as the house of Bacar.

Ladia rushed inside the house. He and Rosalim immediately dropped to the floor for safety. The military opened fire on the two houses. According to Ladia and Padama the gunfire lasted for ten minutes. It resulted in the death of Bacar and his wife Carmen, who was 3-months pregnant at the time.

Bacar died on the spot due to fatal gunshot wounds while his wife, Carmen, managed to get out of the house and seek for help. Ladia rushed Carmen to the Mission hospital in Tagum City, but died while being treated.

On 10 September 2004, the victim’s brother Talib, filed charges against Sgt. Napoles and his 31 men involved in the massacre before the City Prosecutor in Tagum City. On September 29, the Provincial Crime Laboratory office released the result of its paraffin test, which stated that the victim, Bacar, was negative of gunpowder burns.

Complainants Talib and Rodolfo Baluyo, the father of Carmen, executed an affidavit before the Commission on Human Rights in Davao City in October 2004. They filed a complaint and submitted the relevant documents of the case. However, after six months the Commission has not taken any action and no investigation has been conducted in the area.

On 17 December 2004, Prosecutor Francisco Rivero sent to the office of Deputy Ombudsman for Military his resolution and records of the case for review, recommendation and approval. Only a copy of the endorsement was given to the complainant. Talib was refused a copy of the resolution.

Another complaint was also filed with the Office of the Ombudsman for Military. On 3 January 2005, Hon. Harry G. Ravelo, Officer-on-case, has acknowledged receipt of the letter-complaint sent to them earlier.

Requested action:

Kindly write to the relevant authorities in the Philippines asking their immediate intervention in this case.

 

 

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