View Adopted: 2019.03.28
The author is a national of the Philippines who claimed on his own behalf and on behalf of his deceased brother and his brothers wife, that the state party violated their rights under article 6, and that he himself was a victim of a violation of article 2(3), read in conjunction with article 14 (1) of the Covenant.
On the morning of 8 September 2004, the author's deceased brother and his wide were repeatedly shot with rifles by eight members of the Philippine army while they were sleeping in their home. The "operation" lasted 10 minutes, whereby 32 soldiers conducted a strike on the house. As the victims were allegedly being carried to safety, the soldiers continued to shoot. The author's brother died in the attack, and his sister in law died shortly after.
The Office of the City Prosecutor later charged the eight soldiers with two counts of homicide. While the court found that those accused had caused the deaths, the court considered they had acted in compliance with a lawful order issue by a supervisor. The court found it mystifying why the soldiers would have continued to shoot at the victims as they were being tended to, however could not establish their guilt beyond reasonable doubt.
The author claimed that there is no right of appeal under Philippine law, based on the prohibition of double jeopardy in the constitution.
The Committee noted the authors claim under article 14(1), however found that the author was not a party to the national criminal proceedings against those responsible for the death of his brother and sister and law. The Committee therefore found this part of the communication inadmissible.
The Committee recalled that the right to life is the supreme right from which no derogation is permitted, even in situations of armed conflict and other public emergencies which threaten the life of the nation.
The Committee further recalled that the Covenant prohibits the arbitrary deprivation of life, that is, deprivation that is broadly speaking, inconsistent with international or national law. In this manner, the Committee reiterated the principles of the use of force in law enforcement, noting that arbitrary must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law as well as elements of reasonableness, necessity, and proportionality. The use of potentially lethal force in law enforcement is an extreme measure, which should be resorted to only when strictly necessary to protect life or prevent serious injury from an imminent threat.
In this manner, the Committee found that the killing was not strictly necessary for protecting life, and in this light the state party had violated the victims (Bakar Japalali and Carmen Baloyo-Japalali) of their lives in violation of article 6, paragraph 1, of the Covenant.
On the question of a violation of article 2(3), the Committee noted that the state party had not provided any indication that sufficient measures were undertaken to establish whether legal force used in an area of civilian residence, was absolutely necessary, nor had they established that an effective investigation was undertaken into the killings in order to determine their legality.
In light of the above, the Committee found that the state party violated the author’s rights to an effective remedy.
The Committee noted that the state party is under an obligation to provide the authors with an effective remedy, including making full reparation to individuals whose Covenant rights have been violated. This includes an obligation to:
Notwithstanding the terms of article III, Section 21 of the Philippine Constitution, the State party should ensure that it does not restrict enjoyment of the right to an effective remedy for serious human rights violations such as extrajudicial executions.
Individual opinion by Mr. Gentian Zyberi (concurring)
The Committee requested the state party provide a follow up information on measures taken within 180 days (of before 28 September 2019).