Informe provisional - Informe núm. 383, Octubre 2017

1. 538. The Committee last examined this case at its October 2016 meeting, when it presented an interim report to the Governing Body [see 380th Report, paras 811–858, approved by the Governing Body at its 328th Session (November 2016)].
2. 539. The Government forwarded additional observations in communications dated 3 April and 2 October 2017.
3. 540. The Philippines has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 541. At its November 2016 session, in the light of the Committee’s interim conclusions, the Governing Body approved the following recommendations:
   • (a) Noting the multiple efforts made by the Government in recent years to combat impunity, the Committee requests the Government to continue to keep it informed of steps taken and envisaged to ensure a climate of justice and security for trade unionists in the Philippines, and, more specifically, to provide information relating to the establishment of the Tripartite Validating Team for the present case, its functioning and the outcome of its work.
   • (b) Welcoming that the RTMB Region XI in Davao City was tasked to gather additional information, for a second review by the IAC, on the murders of the three trade union leaders Antonio “Dodong” Petalcorin, Emilio Rivera and Kagi Alimudin Lucman, the Committee trusts that its examination of this case will be made available to the IAC technical working group and requests the Government to keep it informed: (i) on the outcome of the second IAC review and, in case of a definitive exclusion from AO 35, on the precise reasons therefore; (ii) on the resolutions issued by the NTIPC concerning the three extrajudicial killings; and (iii) on the result of the tripartite verification of the murder of Mr Lucman.
   • (c) The Committee expects the Government to take all necessary measures so as to ensure that, regardless of the cooperation of the victims’ relatives, the investigation and judicial examination of the above acts of extrajudicial killings advance successfully and without delay so as to identify, bring to trial, punish and convict the guilty parties so as to prevent the repetition of such acts. It requests the Government to keep it informed in this respect.
   • (d) With regard to the murder attempts and threats against the trade union leader Carlos Cirilo, the Committee invites the Government and the complainants to provide any additional information at their disposal. The Committee requests the Government to ensure in future the respect of the principle enunciated in its conclusions and hopes that the Government will take measures to speed up the investigation and judicial inquiry of this case and keep it informed in this regard.
   • (e) The Committee draws the special attention of the Governing Body to the serious and urgent nature of the matters dealt with in this case.

B. The Government’s reply

1. 542. In its communications dated 3 April and 2 October 2017, the Government provides general information on steps taken and updated information concerning the cases at hand.
2. 543. As regards Antonio Petalcorin, the Government indicates in its communication dated 3 April 2017 that the alleged perpetrator has already been identified as Jay-Jay Gascon Vallesteros (sworn statement executed by Mr Capistrano III on 28 August 2013). The Philippine National Police (PNP) coordinated with the family of the victim, specifically with his wife and daughter, for the filing of a case against the suspect. Despite the efforts exerted to convince them, said family members still refused to cooperate. The reason for the lack of interest is unknown. Moreover, the family of Antonio Petalcorin is always out of the country. The PNP continued to exert efforts in investigating the case, and investigation and further follow-up investigations were conducted. However, the said investigations were adversely affected by the non-cooperation of the family of the victims and resulted in difficulty in case build-up. As an out-of-the-box solution, the Regional Tripartite Monitoring Body in Region XI (RTMB-XI) recommended that selected RTMB-XI members personally talk to the family of Mr Petalcorin as soon as they are back in the country and available. RTMB-XI further recommends that follow-up investigations continue and that the PNP periodically update the RTMB-XI on the said case. In its communication dated 2 October 2017, the Government then announces that a case for murder has been filed on 8 March 2017 against the suspects identified as Jay-Jay Gascon and Armie Zerudo Escandor with NPS Docket No. XI-02-INV-17-b-0258.
3. 544. According to the update on the murder of Antonio Petalcorin provided by the Government in February 2017, the Office of the Ombudsman for Mindanao advised on 16 January 2017 that the complaint for grave misconduct filed by Mr Petalcorin against LTFRB Director Benjamin Go, Mr Carlos Cirilo and Ms Annie Cirilo, was dismissed on 19 November 2013 for lack of probable cause and thus lack of substantial evidence.
4. 545. With respect to Emilio Rivera, the Government indicates that a case was already filed against the accused, Baltazar “Bobby” Namoc Mantica, who has a standing arrest warrant. However, the accused remains at large to date. Further intelligence gathering for possible location of the whereabouts of the accused is being pursued. RTMB-XI recommended that further intelligence gathering to this end be continued, and that the PNP periodically update the RTMB-XI on the case.
5. 546. According to the update provided by the Government in February 2017, the PNP exerted efforts in investigating the murder of Mr Rivera. As a matter of fact, the accused was already identified. The same suspect was indicted for the crime of murder with criminal case number 74,993-13-13, now archived at Regional Trial Court, 11th Judicial Region, Branch 6 Davao City.
6. 547. Concerning Kagi Lucman, the Government refers to a prior report from the PNP which stated that close dialogue with the victim’s family and possible witness had been initiated to obtain updates/information that might be helpful in the investigation, but the same remained futile. Reportedly, they migrated to an undisclosed place. Follow-up investigation confirmed that the wife of the victim was in Riyadh, Saudi Arabia, while another victim and possible witness, Mohmaden Ayunan Aloy, could not be located.
7. 548. As to Carlos Cirilo, the Government states that follow-up investigation was conducted to locate possible witnesses who might have knowledge of the grenade-throwing incident at the victim’s residence. However, there were still no witnesses who could provide information. Furthermore, Mr Cirilo had transferred to another residence after the said incident. The PNP continued to exert efforts in investigating the case, and investigation and further follow-up investigations were conducted. However, the said investigations were adversely affected because no witness could be found who could provide information on the incident, which resulted in difficulty in case build-up. RTMB-XI recommended that follow up investigations be continued and that the PNP periodically update the RTMB-XI on the said case.
8. 549. The Government adds that the PNP clarified that Mr Cirilo was not refused police escort. The police committed to check its records to determine whether there was a request for escort filed by Mr Cirilo. If there is a request, the police will verify reasons for the disapproval thereof in compliance with the guidelines in providing police protection; if there is none, this may be the reason why he was not provided with police escort.
9. 550. The Government reiterates that all of the aforesaid cases are currently being handled and investigated through the regular process of criminal investigation and prosecution. Hence, the availability of reports relies heavily on police investigations and regular court proceedings, the progress of which may be affected by lack of material witnesses. According to the update provided by the Government in February 2017, the PNP states that the investigations of the above cases are adversely affected by the non-cooperation of the family of the victims. Despite the difficulty in case build-up, the PNP is earnestly conducting follow-up investigations of the said cases.
10. 551. Lastly, the Government indicates, in its communication dated 2 October 2017, that the Department of Labor and Employment, together with the ILO Country Office for the Philippines and with the support of the EU Generalized Schemes of Preferences Plus, has embarked on a two-year technical cooperation project on freedom of association and collective bargaining, which aims to further improve the environment as well as the capacity of the tripartite partners towards better implementation and application of the right to freedom of association and collective bargaining in the Philippines, guided by specific strategic objectives. A one-day Tripartite Project Launch was held on 13 September 2017 in Manila, bringing together around 100 tripartite and social partners, especially the concerned government agencies, to discuss and agree on strategies to improve application of freedom of association principles and right to collective bargaining based on key Conventions ratified by the Philippines (i.e. ILO Conventions Nos 87 and 98). Part of the activity was the ceremonial signing by the tripartite partners of a Tripartite Manifesto of Commitment and Collective Effort to Sustain Observance and Further Improvement in the Application of the Principles of Freedom of Association and Collective Bargaining, which commits the tripartite partners to promote and protect workers’ rights at all times pursuant to the fundamental principles of freedom of association and collective bargaining by, among others, aligning national law and practice to these principles; to formulate and adopt a National Action Plan with identified key result areas and strategies to further improve the application of these principles in the Philippines; and to collaborate and actively work towards the implementation of the National Action Plan, and endeavour to efficiently and effectively attain the targets identified therein.

C. The Committee’s conclusions

1. 552. The Committee notes that, in the present case, the complainants allege the extrajudicial killings of three trade union leaders and denounce the failure of the Government to adequately investigate these cases and bring the perpetrators to justice. The complainants further allege the use of threats and murder attempts against a fourth trade union leader and his family, who have been forced into hiding, and denounces the Government’s failure to adequately investigate this case and protect the victims. According to the complainants, the failure to investigate and prosecute in these cases would have reinforced the climate of impunity, violence and insecurity with its damaging effect on the exercise of trade union rights.
2. 553. The Committee notes the updated information submitted by the Government concerning the cases at hand.
3. 554. The Committee observes in particular that a detailed and intricate framework of monitoring and investigative mechanisms, at both national and regional levels, continues to actively work on the cases of killings of trade unionists and other violence brought before the ILO supervisory bodies. The Committee also notes with interest the recent tripartite event for the purpose of launching a two-year technical cooperation project on freedom of association and collective bargaining, at which the tripartite partners signed the Tripartite Manifesto of Commitment and Collective Effort to Sustain Observance and Further Improvement in the Application of the Principles of Freedom of Association and Collective Bargaining. The Committee requests the Government to continue to keep it informed of further efforts made or envisaged to ensure a climate of justice and security for trade unionists in the Philippines. More specifically, the Committee asks the Government to provide information relating to the previously evoked Tripartite Validating Team established for the present case, its functioning and the outcome of its work.
4. 555. The Committee recalls that the three murders under examination, like the vast majority of extrajudicial killings before the Inter-Agency Committee (IAC) on Extrajudicial Killings, Enforced Disappearances, Torture and Other Grave Violations of the Right to Life, Liberty and Security of Persons was created pursuant to Administrative Order No. 35 (AO 35), were found not to meet the criteria of AO 35, in particular as regards the condition that the victim was targeted and killed because of the actual or perceived membership, advocacy or profession. The Committee reiterates its previous view that the ultimate determination of the motivation for the killing can only be made by a court of law, whereas the threshold for setting out a possible motive related to the deceased’s activism should not require more than a prima facie linking; and that, in the absence of evidence precluding any connection of the crime with the exercise of trade union activities, membership or office, and, to the contrary, in the specific context of the exercise of a legitimate trade union activity (e.g. the filing of a complaint), the killings of trade union leaders should be able to benefit from the resources and powers of the high-level IAC [see 380th Report, para. 854].
5. 556. In light of the above, the Committee considers that the Government should ensure that, with respect to the working of the non-judicial monitoring bodies such as the IAC or the RTMBs, the criteria used for screening cases for its consideration should be broader than the judicial criteria used by the courts, so as to not unduly exclude possible freedom of association cases and to ensure that labour activity or trade union function, even though other factors may be being considered, give rise to an in-depth review of the possible motivation. The Committee trusts that its above considerations will be made available to the IAC technical working group and requests the Government to keep it informed: (i) on the outcome of the renewed review by the IAC of the murders of the three trade union leaders Antonio “Dodong” Petalcorin, Emilio Rivera and Kagi Alimudin Lucman and, in case of a definitive exclusion from AO 35, on the precise reasons therefore; and (ii) on any resolutions issued by the NTIPC-MB concerning the three extrajudicial killings.
6. 557. The Committee notes that the Government reiterates that the aforesaid cases of three murders and one attempted murder of trade union leaders are currently being handled and investigated through the regular processes of criminal investigation and prosecution, the progress of which is adversely affected by the non-cooperation of the family of the victims or the lack of material witnesses. The Committee reiterates once again that such crimes should, due to their seriousness, be investigated and, where evidence (not necessarily in the form of witnesses) exists, prosecuted ex officio without delay, regardless of desistance or disinterest of the parties to pursue the case, i.e. even in the absence of a formal criminal complaint being lodged by a victim or an injured party [see Case No. 2528: 359th Report, para. 1112; 364th Report, para. 949; and 370th Report, para. 81]. In this context, the Committee is pleased to note the most recent information that progress has been made in relation to the killing of Antonio Petalcorin with the identified suspects charged with murder on 8 March 2017. The Committee expects that the perpetrators will be brought to trial and convicted without further delay, and requests the Government to keep it informed of the progress made in this regard and to provide a copy of the relevant judgments as soon as they are handed down.
7. 558. In view of the obstacles invoked by the Government to the investigation and prosecution of the remaining killings of trade unionists, the Committee generally requests the Government to take measures, if necessary of legislative nature, to ensure that crimes of such serious nature are investigated and (where evidence exists) prosecuted motu proprio, i.e. regardless of the desistance, disinterest or non-cooperation of the victim’s family or other parties to pursue the case, and even in the absence of a formal criminal complaint being lodged by the injured party. Furthermore, the Committee trusts that the national criminal system will be assisted to increase the capacity to collect forensic evidence and move away from the de facto excessive reliance on testimonial evidence, so that the lack or retraction of witnesses no longer impedes progress in the investigation and prosecution of cases. More specifically, the Committee recalls that the Government has the duty to defend a social climate where respect for the law reigns as the only way of guaranteeing respect for and protection of individuals, and that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 34 and 44)]. The Committee expects the Government to take all necessary measures so as to ensure that the investigation and judicial examination of the three alleged acts of extrajudicial killings, even if not committed by state actors, advance successfully and without delay so as to identify, bring to trial and convict the perpetrators so as to prevent the repetition of such acts. It requests the Government to keep it informed in this respect.
8. 559. With regard to the murder attempt and threats against trade union leader Carlos Cirilo who went into hiding with his family and the alleged failure of the Government to provide adequate protection, the Committee observes that the PNP is still in the process of verifying whether a request for police escort had been filed. Recalling that facts imputable to individuals bring into play the State’s responsibility owing to the State’s obligation to prevent violations of human rights, and that, consequently, governments should endeavour to meet their obligations regarding the respect of individual rights and freedoms, as well as their obligation to guarantee the right to life of trade unionists [see Digest, op. cit., para. 47], the Committee generally requests the Government to take further measures to fully ensure the respect of this principle by effectively protecting potential victims, whether through formal or less formal avenues.