Response from the Government of the Philippines dated 26 February 2008 The Government referred to an initial reply to these cases that was sent to the Special Representative on the situation of human rights defenders on 8 November 2007, in response to an urgent appeal sent by the latter. The Government stated it would submit any new information it would receive with regard to these allegations from the authorities to the Office.
Response from the Government that was sent to the Special Representative on the situation of human rights defenders on 8 November 2007 The letter stated that, according to a witness who refused to be identified, the Ms Sherlyn Cadapan, Ms Karen Empeño and Mr Manuel Merino were abducted by six unidentified men, believed to be military agents. A complaint had not been lodged and the alleged perpetrators had not been identified. An investigation conducted by Hagonoy, Bulacan Police Station revealed that on 26 June 2006 at about 3.25pm, members of the Hagonoy, Bulacan Police Station accompanied Ms Paulino Purok 6, Barangay San Miguel, Hagonoy, Bulacan, to verify her report of the abduction.
The following day, at around 9.20pm, Mr Mon L. Mangaran of Malolos, Bulacan, and Mr Antonio S. Idanan of Meycauayan, Bulacan, reported to the Hagonoy, Bulacan Police Station that while they were conducting a fact-finding mission at the place of the abduction, four unidentified males were allegedly seen spying on them, however, a certification dated 29 June 2006 issued by Barangay San Miguel Chairman Guillermo L. Fajardo, stated that there was no recorded incident regarding the abduction of the three.
On 3 July 2006, verification at the UP Los Banos revealed that Sherlyn and Karen were not students at said university. However, a letter from the President of UP Diliman, confirmed that Karen was a BA Sociologist there and Manuel was a respondent to the thesis allegedly being completed by Karen. A certificate also stated that Sherlyn was a student under the B.Sports Science program in 1994-1995 and 2000-2001. It was also stated most of the potential witnesses were allegedly staying at the Refugee Centre in Bulacan where letters had been sent but remained unanswered.
A petition for habeas corpus was filed before the Supreme Court on 17 July 2006 by the relatives of Sherlyn and Karen requesting that a Writ of Habeas Corpus be issued directing the respondents: Maj. Gen. Romeo Tolentino, Maj. Gen. Jovito Palparan, Lt. Col. Rogelio Boac, Lt. Francis Samson and Arnel Enriquez to bring the bodies of the three before the court.
However, on 29 May 2007, the petition was dismissed, there being no strong evidence that the missing persons were in the custody of the respondents. The Provincial Intelligence and Investigation Branch of Bulacan Police Provincial Office were later able to contact Mrs Erlinda Cadapan, mother of Sherlyn. She agreed to grant an appointment later but all attempts to contact her had failed. Mr Ceferino Manzano, Barangay Councilor and neighbour, told the investigators that Mrs Paulino, Sherlyn’s mother-in-law was still in Los Banos, Laguna, and stated that he had not seen Sherlyn since her abduction.On 25 September 2007, a case conference was conducted at the Task Force Usig Secretariat and directed the investigators to exert more effort in gathering relevant information from potential witnesses in the investigation.
Russian Federation: Execution of Adam Israilov, Aslanbek Israilov, Mr. Turpal Israilov and Aslanbek Dzhabrailov Violation alleged: Deaths due to attacks or killings by security forces; Impunity
Subject(s) of appeal: 4 males
Character of reply: Largely satisfactory response
Observations of the Special Rapporteur The Special Rapporteur appreciates the information provided by the Government of the Russian Federation. The SR would request that the Government of the Russian Federation keep him informed of the progress of the investigative and criminal proceedings.
Allegation letter dated 25 January 2007 I would like to draw your Excellency’s attention to the lack of progress in the investigation of the deaths of Mr. Adam Israilov, Mr. Aslanbek Israilov, Mr. Turpal Israilov and Mr. Aslanbek Dzhabrailov who were reportedly killed by Russian federal forces in the village of Gekhi-Tshu, Urus-Martanovskyj district, in the Chechen Republic on 7 February 2000 in the aftermath of a military operation.
According to the information received:
The four men who had hidden in a basement were reportedly arrested by Russian soldiers who brought them to a courtyard located in Shkolnaya Street no. 74. There, the soldiers checked if they belonged to the troops opposed to the Federal forces and if they were bearing weapons. Ten minutes later, shots were reportedly heard in the courtyard. The dead bodies of the four men were found in that same courtyard. They all had been shot while Aslambek Dzhabrailov and Aslanbek Israilov had also received a knive wound in the heart.
On 8 February 2000, members of the Temporary Internal Affairs office and of the Prosecutor’s office of Urus-Martanovskij district went to the village of Gekhi-Tshu to interrogate victims and to draw a plan of the incident. A week later, an investigator of the prosecutor’s office, Mr. A.A. Malyuk, informed the victim’s relatives that criminal proceedings had been initiated. However, it is reported that the opening of a criminal case (under no 24037) only took place much later on 14 July 2000 and that the investigation was suspended shortly afterward on 4 December 2000 as the persons responsible could not be identified.
To my knowledge, the investigation was never re-opened despite the repeated
complaints lodged by the victim’s relatives since February 2000.
While I do not wish to prejudge the accuracy of these allegations, I urge your Excellency’s Government to take effective measure to reopen those investigations and to identify and bring to justice those responsible.
In this respect, I would like to recall that, as reiterated in Commission on Human Rights Resolution 2005/34 on “Extrajudicial, summary or arbitrary executions” (OP 4), all States have “the obligation (…) to conduct exhaustive and impartial investigations into all suspected cases of extrajudicial, summary or arbitrary executions, to identify and bring to justice those responsible, (…) and to adopt all necessary measures, including legal and judicial measures, in order to bring an end to impunity and to prevent the recurrence of such executions”. This obligation, affirmed also in the jurisprudence of the Human Rights Committee (see, e.g. the Committee’s views in Arhuacos v. Colombia, Communication no. 612/1995, § 8.8.), is indeed part and parcel of the obligation to respect and protect the right to life enshrined in Article 3 of the Universal Declaration of Human Rights and Article 6 of the International Covenant on Civil and Political Rights.
It is my responsibility under the mandate provided to me by the Commission on Human Rights and extended by the Human Rights Council, to seek to clarify all cases brought to our attention. Since I am expected to report on these cases, we would be grateful for your cooperation and your observations on the following matters:
1. Are the facts alleged above and in the annexed table accurate?
2. Please provide the details, and where available the results, of any investigation, medical examinations, or other inquiries which may have been carried out in relation to these cases. If no inquiries have taken place, or if they have been inconclusive, please explain why.
3. In the event that the alleged perpetrators have been identified, please provide the full details of any prosecutions which have been undertaken; have penal, disciplinary or administrative sanctions been imposed on the perpetrators?
4. Please indicate whether compensation has been provided to the families of the victims.
Response from the Government of the Russian Federation dated 15 March 2007 According to the information provided by the Office of the Procurator-General of the Russian Federation, on 7 February 2000, in the village of Gekhi-Chu in Urus-Martan district of the Chechen Republic soldiers of the federal forces conducted a special operation to identify the participants in illegal armed formations. During the operation, there were hostilities between members of an illegal armed formation, who had sought shelter in a housing estate, and soldiers of the federal forces; as a result, one soldier died. In the return fire, members of the illegal armed formation were killed. Four inhabitants of the village of Gekhi-Chu, the brothers Adam, Aslanbek and Turpal Israilov and Aslanbek Dzhabrailov, also received fatal gunshot wounds.
On 14 July 2000, the Urus-Martan district procurator’s office opened a criminal case (under No. 24037) on the basis of evidence of an offence contrary to article 105, paragraph 2 (a), of the Criminal Code of the Russian Federation (Murder of two or more persons). The case is currently being handled by the investigator of the Urus-Martan district procurator’s office, grade 2 lawyer B.K. Madaev.
The information contained in Mr. Alston’s letter concerning the termination of the criminal case is incorrect.
The pretrial investigation in the case in question was not terminated but was repeatedly suspended on the basis of article 208, paragraph 1 (1), of the Code of Criminal Procedure of the Russian Federation (Failure to identify persons liable to charges). The last suspension decision was taken on 24 September 2006.
On 1 February 2007, the decision to suspend the investigation was overturned, and instructions were given to conduct investigative actions and inquiries in the criminal case.
The investigation of the criminal case is being monitored by the procurator’s office of the Chechen Republic.
Saudi Arabia: Death Sentence of Sufun Muhammed Ali Ahmed al-Zafifi Violation alleged: Non-respect of international standards relating to the imposition of capital punishment
Subject(s) of appeal: 1 male
Character of reply: No response
Observations of the Special Rapporteur The Special Rapporteur regrets that the Government of Saudi Arabia has failed to cooperate with the mandate that he has been given by the General Assembly and the Human Rights Council.
Urgent appeal dated 24 January 2007sent with the Special Rapporteur on the independence of judges and lawyers and Special Rapporteur on the question of torture
We would like to draw the attention of your Excellency’s Government to the case of Sufun Muhammed Ali Ahmed al-Zafifi, a Yemeni national who is reportedly at risk of imminent execution. According to the information received:
He was arrested on 25 April 2006 and allegedly confessed to the abduction and rape of a boy. He was convicted and sentenced to death on 11 July 2006 and his sentence was upheld on appeal. We received reports alleging that his confession was extracted under duress, that the trial took place behind closed doors and that he was not afforded defense counsel. Our understanding is that the only remaining option for Mr al-Zahifi is to seek a pardon from His Majesty, the King.
If these allegations are correct there would be grounds for serious concern. We would therefore be grateful if your Excellency’s Government could provide us with information indicating whether or not the defendant in this case was given the right to formal representation by a lawyer, and providing details of any such access. In addition, we wish to establish whether the proceedings were open to observers including representatives of the Government of Yemen. Finally, we would like to receive information as to the nature of any right to an effective appeal which was exercised in this case. Please also provide the details, and where available the results, of any investigation, medical examinations, and judicial or other inquiries carried out in relation to the allegations that the defendant was subjected to torture or ill-treatment while in pre-trial detention. If no enquiries have taken place, or if they have been inconclusive, please explain why.
Although the death penalty is not prohibited under international law, it has long been regarded as an extreme exception to the fundamental right to life, and must as such be interpreted in the most restrictive manner. The Commission on Human Rights has consistently requested the Special Rapporteur on extrajudicial, summary or arbitrary executions to monitor the implementation of all standards relating to the imposition of capital punishment. Those standards include, in particular, the following:
1) the “sentence of death may be imposed only for the most serious crimes” (Article 6(2) ICCPR), it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences (Paragraph 1 of the Safeguards guaranteeing protection of the rights of those facing the death penalty, Economic and Social Council resolution 1984/50 of 25 May 1984).
2) “in capital punishment cases, the obligation of States parties to observe rigorously all the guarantees for a fair trial set out in Article 14 of the [ICCPR] admits of no exception” (Little v. Jamaica, communication no. 283/1988, Views of the Human Rights Committee of 19 November 1991, para. 10); these guarantees include the right to have access to a defense counsel of one’s own choosing, or if the person does not have legal assistance to have a defense counsel assigned to him, and the right to be tried publicly.
3) “anyone sentenced to death shall have the right to seek pardon or commutation of the sentence.” (Article 6(4) ICCPR).
In addition, transparency is one of the fundamental due process safeguards contributing towards efforts to prevent the arbitrary deprivation of life (see my recent report Transparency and the Imposition of the Death Penalty, E/CN.4/2006/53/Add.3). In order to enable us to carry out the mandate entrusted to us, we would be grateful if you would provide us with the following information:
(a) For which offences does the law currently provide for the imposition of the death penalty?
(b) Which courts can impose the death sentence? What appeals and extraordinary remedies are available to a person sentenced to death?
(c) Please provide a complete list of the persons currently in detention under a death sentence, with the dates of their sentence, the offences of which they were found guilty, and the remedies exhausted by them as well as those still available to them.
(d)What proportion of those executed were foreigners?
Furthermore, we would like to stress that each Government has the obligation to protect the right to physical and mental integrity of all persons. This right is set forth inter alia in the Universal Declaration of Human Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Saudi Arabia: Death Sentences of Ranjith de Silva, Victor Corea, Sanath PushpakumaraandSharmila Sangeeth Kumara Violation alleged: Non-respect of international standards relating to the imposition of capital punishment
Subject(s) of appeal: 4 males (foreign nationals)
Character of reply: Cooperative but incomplete response
Observations of the Special Rapporteur The Special Rapporteur appreciates the information provided by the Government of Saudi Arabia regarding the executions of Ranjith de Silva, Victor Corea, Sanath Pushpakumara and Sharmila Sangeeth Kumara. The SR would note, however, that the information provided in no way refutes allegations that the persons executed were tried without legal representation and sentenced to death for offences not among those internationally recognized as the “most serious crimes” for which a death sentence might be imposed.
The SR would also note that he would continue to appreciate information on what percentage of those sentenced to death and executed are foreigners.
Allegation letter dated 5 April 2007 sent with the Special Rapporteur on the independence of judges and lawyers We would like to draw the attention of your Government to information we have received regarding the execution on 19 February 2007 of four Sri Lankan citizens, Messrs. Ranjith de Silva, Victor Corea, Sanath Pushpakumara and Sharmila Sangeeth Kumara. The Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special rapporteur on the human rights of migrants had previously raised their concerns about this case in a communication to your Government of 13 April 2005, which unfortunately has remained without reply.
In the previous communication we explained that, according to the information received, three Sri Lankan migrant workers – Mr. Victor Corea, Mr. Ranjith de Silva and Mr. Sanath Pushpakumara – had been involved in a series of armed robberies and had been arrested by the Riyadh police on 10 March 2004. In October 2004 they were sentenced to death on charges of possession of illegal firearms and attempted robbery by the Saudi Arabian High Court. Their sentences were reportedly upheld in March 2005 and an appeal for mercy was at the time pending before His Excellency, the King of Saudi Arabia.
On the basis of the information in our possession, we expressed the concern that “the three men were sentenced to death after trials that appear[ed] to have fallen short of international fair trial standards. It is reported that they did not have any legal representation during their trials, although a translator was provided. The translation of proceedings is no substitute for adequate legal representation as required by international standards. In addition, it is alleged that after their trial, the three men were asked to sign a document in Arabic, stating their acceptance of the death sentence which only Mr. Silva reportedly refused to sign.”
More detailed reports we have recently received have added the name of a fourth defendant in the same case, Sharmila Sangeeth Kumara, state that the execution took place on 19 February 2007, and confirmed the concerns raised two years ago with regard to the lack of due process. It is reported that:
Around nine months after their arrest in March 2004, an official in al-Ha’ir prison where the four men were held informed them that they had a court hearing. The hearing lasted around three hours. The judge interrogated the four men, who were allowed only to speak in reply to his questions. The judge also asked whether they had suffered beatings during interrogation, to which they replied that they had. Minutes were taken and proceedings were interpreted, but no prosecutor was present and the defendants did not have legal or consular assistance. At no time were the defendants told that they might face the death penalty, nor were they ever informed that they had a right to a lawyer or a right not to incriminate themselves.
Several months after the first hearing, prison officials brought the four defendants to court a second time, again without prior notice. At this second hearing, two judges conferred for 20 minutes, then sentenced all four to death.
In response to a query from the court, all four defendants refused to accept the verdict, and the court sent the case for review to the Court of Cassation. The four men were unaware how to conduct an appeal and were not invited to make any submissions to the Court of Cassation or informed whether there would be any hearing. Three months later, the men were advised by a judge in a third trial session that the cassation court had upheld the verdict. No copy of the judgment was given to the four defendants.
The four defendants managed to contact the Sri Lankan embassy from prison after the trial. The Sri Lankan diplomats informed them that it was too late to appoint a lawyer and that instead they would issue an appeal for clemency.
On 19 February 2007, however, a royal order affirmed the death sentence. Ranjith de Silva, Victor Corea, Sanath Pushpakumara and Sharmila Sangeeth Kumara were executed on the same day.
While we do not wish to prejudge the accuracy of the allegations reported above, we respectfully remind your Excellency that in capital punishment cases the obligation to provide criminal defendants “a fair and public hearing before an independent and impartial tribunal” (Article 10 of the Universal Declaration on Human Rights) allows no derogation. A central element of the right to a fair hearing is the right to be assisted by legal counsel. In this respect, we would also like to refer Your Excellency's Government to the Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, in particular Principle 1, which reads: “All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings” and principle 5; “Governments shall ensure that all persons are immediately informed by the competent authority of their right to be assisted by a lawyer of their own choice upon arrest or detention or when charged with a criminal offence.”
The right to a fair hearing also requires that defendants be given information on the proceedings in which their culpability and sentence will be determined, that they be given adequate notice of hearings, and that they be given adequate time and facilities to prepare their defense.
International law further requires that the death penalty be imposed only for the most serious crimes. We certainly do not underestimate the seriousness of the crime of armed robbery. However, according to the information received, only one of the four defendants, Mr. Corea, has in fact caused bodily harm in the course of a robbery. The two persons shot by Mr. Corea have reportedly recovered from their wounds, and one of the victims, an Indian man named Muhi al-Din, reportedly told the judge in a civil suit that he did not seek any damages and asked for clemency for the four Sri Lankan men after learning that they had been sentenced to death. If this information was confirmed, doubts could be raised as to whether the offences committed by the four defendants actually attained the seriousness required by international law for the imposition of the death penalty.
It is our responsibility under the mandate provided to us by the Commission on Human Rights and reinforced by the appropriate resolutions of the General Assembly, to seek to clarify all cases brought to our attention. Since we are expected to report on these cases to the Human Rights Council, we would be grateful for your cooperation and your observations on the following matters:
1. Are the facts alleged in the above summary of the case accurate? In particular, is it accurate that the defendants were not assisted by lawyers at any stage of the proceedings? Is it accurate that the defendants learned that they were charged with offences potentially carrying the death sentence only when that sentence was in fact imposed? Is it accurate that the defendants were not given written copies of the judgments?
2. As stated in our communication of 13 April 2005, we would appreciate knowing if the proceedings were open to observers, including particularly representatives of the Government of Sri Lanka.
3. Were the proceedings in this case in accordance with the laws of the Kingdom of Saudi Arabia?
4. We would finally like to reiterate the request by the Special Rapporteur on extrajudicial, summary or arbitrary executions and Special Rapporteur on the independence of judges and lawyers in a communication to your Excellency’s Government of 24 January 2007 for clarification of which offences carry the death penalty in the Kingdom of Saudi Arabia, which courts can impose it, and what percentage of those sentenced to death and executed are foreigners. The latter question is particularly relevant in the light of the reports concerning the present case of execution of four migrant workers.