Evangeline Hernandez v The Philippines, UN Doc CCPR/C/99/D/1559/2007 (20 August 2010)
The Human Rights Committee has held the Philippines breached its obligations under the International Covenant on Civil and Political Rights following the arbitrary killing of a human rights activist by members of the State’s military. The Committee found that the State party failed to take effective measures both to protect the right to life and to ensure the complete and expeditious prosecution of those responsible for the killing, in violation of arts 6(1) and 2(3) of the Covenant.
Ms Benjaline Hernandez, a human rights advocate, was conducting research on the impact of the peace process in Mindanao, in April 2002. On 5 April 2002, Ms Hernandez and three local people were inside a hut which was strafed (attacked by machinegun fire from a low-flying aircraft) by six paramilitaries from the Citizens Armed Force Geographical Unit, led by 7th Battalion Master Sergeant ‘T’. All four pleaded for mercy, but were shot dead. The autopsy on Ms Hernandez revealed that she had been shot twice at close range, while lying on her back.
Representatives of Ms Hernandez’s mother filed a complaint against the security forces for breaching the peace agreement signed by the Philippines government and the National Democratic Front of the Philippines. The case is yet to be heard by the Joint Monitoring Committee under the peace agreement. At some length, the Department of Justice filed criminal proceedings, which were still ongoing eight years after the deaths.
Ms Hernandez’s mother submitted a communication to the Human Rights Committee, claiming violations of arts 2(1), 2(3), 6(1), 7, 9(1), 10(1), 17 and 26 of the Covenant.
The State party disputed the admissibility of the communication on a number of grounds, all of which were rejected by the Committee.
First, the State party pointed out that domestic remedies had not been exhausted prior to submitting the communication, as required by art 5(2)(b) of the Optional Protocol to the Covenant. Proceedings before the Philippine Commission on Human Rights and the Regional Trial Court were still pending. The Committee found that, consistent with previous case law, domestic remedies must both be effective and available, and must not be unreasonably prolonged. In the circumstances, eight years after the killings, criminal proceedings were still incomplete. Moreover, the State party had provided no explanation for the delay and cited no complicating factors that had contributed to it. The Committee therefore held that domestic remedies had been unreasonably prolonged, and that it was not precluded from hearing the case on the basis that they had not been exhausted.
The State party also maintained the case was inadmissible as it was being investigated by ‘another procedure of international investigation or settlement’ under art 5(2)(a) of the Optional Protocol, namely the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, who visited the State party in 2007. The Committee held that fact-finding visits by special rapporteurs do not fall within the meaning of art 5(2)(a). Accordingly, the communication was not inadmissible on this ground.
Nevertheless, the Committee found that the author’s claims in regard to arts 2(1), 7, 9(1), 10(1), 17 and 26 of the Covenant were inadmissible. The author had failed to explain, for the purposes of admissibility under art 2 of the Optional Protocol, how those rights had been violated by the State party. Only claims in relation to arts 6(1) and 2(3) had been substantiated sufficiently to be considered admissible.
Article 6(1): Right to Life
Article 6(1) of the Covenant enshrines the right to life, which must be protected by law and cannot be arbitrarily deprived.
It was not disputed that Ms Hernandez died as a result of being shot in the paramilitary attack. In the absence of convincing evidence that 7th Battalion Master Sergeant T was acting in a wholly individual capacity when the killing took place, the Committee found that his actions were attributable to the State’s military organisation, and that the State party was responsible for the death of Ms Hernandez. Moreover, the State party had not advanced convincing evidence of measures it had taken to protect the right to life or prevent arbitrary killings, as it was obliged to do under art 6. The Committee thus concluded that a violation of art 6(1) had occurred.
Article 2(3): Provision of Effective Remedies
Under art 2(3), each State party undertakes to provide and enforce effective remedies for victims of rights violations. In its decision, the Committee emphasised that:
[T]he State party is under an obligation to take effective measures to ensure that the criminal proceedings are expeditiously completed, that all perpetrators are prosecuted, and that the author is granted full reparation, including adequate compensation. The State party should also take measures to ensure that such violations do not recur in the future.
The Committee found that, while the State party had provided information about some general initiatives that had been adopted to deal with cases of extrajudicial killing, it had failed to provide information about the provision of a remedy in this particular case. The State party had not explained how the State’s general initiatives would bring about a remedy for the violation, or why a remedy had been delayed in the first place. The Committee noted that the State party had only managed to initiate one prosecution in relation to the incident, which was, in any case, unreasonably prolonged. Therefore, the Committee found that the State party had violated art 2(3), read in conjunction with art 6.
Relevance to the Victorian Charter
The right to life is protected under s 9 of the Victorian Charter. This decision reinforces that the right to life includes a right to the effective, expeditious investigation and prosecution of arbitrary killings. Excessive and unreasonable delay on the State’s part in this regard will itself constitute a failure to respect and protect the right to life.
The decision is at www2.ohchr.org/tbru/ccpr/CCPR-C-99-D-1559-2007.pdf.
Sarah Lenthall is a volunteer with the Human Rights Law Resource Centre