EDEN MARCELLANA AND MR. EDDIE GUMANOY VS.

PHILIPPNES
1560/2007

FACTUAL BACKGROUND

Ms. Marcellana was the former Secretary General of Karapatan-Southern Tagalog (a human
rights organisation) and Mr. Eddie Gumanoy was the former chairperson of Kasama Tk (an
organization of farmers). They were leading a factfinding mission in the province of Mindoro
Oriental, to enquire about the abduction of three individuals in Gloria town allegedly committed
by elements of the 204th infantry brigade, under the command of one Col. Jovito Palparan, and
the killing and disappearance of civilians and burning of properties by the military in the town of
Pinamalayan. Ms. Marcellana was threatened several times by the military for her advocacy
work. In addition, while conducting their work, mission members were under the impression that
they were under constant surveillance. At some point, when trying to see the detainees inside the
204th infantry brigade, members of the mission were photographed against their will.

The victims were travelling on the highway from the 204th infantry brigade headquarters, when
their van was stopped by ten armed men. The assailants specifically asked for Ms. Marcellana,
who was forced to reveal her identity. All the belongings of the members of the fact-finding
mission were then seized. The armed men were not all hooded and some of them could be
identified as being Aniano "Silver" Flores and Richard "Waway" Falla, former rebels and
currently associated with the military. The dead bodies of Ms. Marcellana and Mr. Eddie
Gumanoy were found the following day. Forensic reports and the death certificates indicate that
their death was caused by gun-shot wounds.

The authors filed a complaint for kidnapping and murder before the Department of Justice
(DOJ). The DOJ dismissed the complaint and the charges against one of the alleged perpetrators
on the ground of insufficient evidence. The authors appealed the DOJ's decisions before the
Office of the President of the Republic. The appeal requested that the DOJ decision be reversed
and that charges be filed against Aniano "Silver" Flores and Richard "Waway" Falla. That appeal
is still pending.

A complaint was also filed with the Commission on Human Rights of the Philippines. This
complaint was later withdrawn, due to the authors' assessment that they would not obtain justice
from this body. Complaints were also filed with the House of Representatives of the Philippines,
the Senate, and under the Comprehensive Agreement on respect for Human Rights and
International Humanitarian Law, but no action was taken. The authors add that, in spite of
widespread and public opposition, one of the principal suspected perpetrators, Col. Palparan, was
later promoted to Major General by the President.
ISSUE: Whether the state party violated petitioner’s right under article 2 paragraph 3, article 6
paragraph 1, article 9 paragraph 1 of the International Covenant on Civil and Political Rights.
HELD: As to the claim under article 6, paragraph 1, the Committee observes that it is an
established fact, as recognized in the decision of the DOJ of 17 December 2004, that Ms.
Marcellana and Mr. Gumanoy were kidnapped, robbed and killed by an armed group. In this
regard, the Committee recalls its jurisprudence that criminal investigation and consequential
prosecution are necessary remedies for violations of human rights such as those protected by
article 6. The Committee further recalls its General Comment which lays down that where
investigations reveal violations of certain Covenant rights, States parties must ensure that those
responsible are brought to justice.

In the present case, though over five years have elapsed since the killings took place, the State
party's authorities have not indicted, prosecuted or brought to justice anyone in connection with
these events. The Committee notes that the State party's prosecutorial authorities have, after a
preliminary investigation, decided not to initiate criminal proceedings against one of the suspects
due to lack of sufficient evidence. The Committee has not been provided with any information,
other than about initiatives at the policy level, as to whether any investigations were carried out
to ascertain the responsibility of the other members of the armed group identified by the
witnesses.

In the present case, the Committee observes that, given that the victims were human rights
workers and that at least one of them had been threatened in the past, there appeared to have
been an objective need for them to be afforded protective measures to guarantee their security by
the State. However, there is no indication that such protection was provided at any time. On the
contrary, the authors claimed that the military was the source of the threats received by Ms.
Marcellana, and that the fact-finding team was under constant surveillance during its mission. In
these circumstances, the Committee concludes that the State party has failed to take appropriate
measures to ensure the victims' right to security of person, protected by article 9, paragraph 1, of
the Covenant.

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an
obligation to provide the authors with an effective remedy, including initiation and pursuit of
criminal proceedings to establish responsibility for the kidnapping and death of the victims, and
payment of appropriate compensation. The State party should also take measures to ensure that
such violations do not recur in the future.

Bearing in mind that, by becoming a party to the Optional Protocol, the State party has
recognized the competence of the Committee to determine whether there has been a violation of
the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has
undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights
recognized in the Covenant, and to provide an effective and enforceable remedy in case a
violation has been established, the Committee wishes to receive from the State party, within 180
days, information about the measures taken to give effect to the Committee's Views. The State
party is also requested to publish the Committee's Views.