Comments on the reply of the Philippine Governments reply

RE : FOUR MINORS IN DETENTION IN ANGELES DISTRICT JAIL
MANUEL FLORES,
FELIX CUSIPAG,
HADJI SALIK CAMARODING,
MICHAEL GUEVARRA Y GARCIA

INTRODUCTION:

Manuel Flores, Felix Cusipag, and Hadji Salik Camaroding, have all been released or transferred to the custody of juvenile centers since our initial communication to the UN Working Group on Arbitrary Detention on 27th June 2002. Michael Guevarra y Garcia remains in Angeles District Jail, Pampanga Province, Philippines.

Despite the three minor’s release we strongly urge the Working Group to exercise it’s discretion under Paragraph 17 (a) of the Working Group’s revised methods of work which reserves the right of the Working Group to render an opinion, on a case-by case basis, as to whether or not the deprivation of liberty was arbitrary, notwithstanding the release of the persons concerned.

Due to the following circumstances we believe the cases of the three minors already released should not be filed and the one remaining prisoner’s case should also be investigated;

The three detainees released are confirmed to be minors, two of them thirteen years old or younger, while the one remaining prisoner claims to be a minor. The Philippine Government’s reply to our communication sent through the UN confirms that all four minors were detained for weeks, if not months in a prison for convicted adult prisoners, in unsanitary conditions.
Our attached evidence, and the Philippine Government’s reply, shows that three of the minors had been ordered released by the Angeles Regional Trial Court many days before their actual release. The attached court documents also show that fundamental legal norms of International Law in relation to minors in detention were ignored in these cases. In such circumstances we strongly urge the Working Group to underline the legal and moral imperative in protecting children from illegal detention by continuing to study the facts of this case and to render an opinion as to whether their detention was arbitrary and illegal.
From our interviews with the said minor’s in Angeles Jail on the 24th June 2002, it is clear that all four detainees came from a deeply impoverished background. Three of the four children had been abandoned by their parents. All four youths had little or no knowledge about their legal cases, including the three whose cases had already been dismissed by the court. The right not to be arbitrarily and illegally detained must also involve a right to be compensated and rehabilitated for such illegal detention. Such a right of redress should exist practically, rather than just on paper. Minor’s as young as thirteen cannot be expected to be the protector’s of their own legal rights. These minor’s are completely dependent on the Working Group to vindicate their rights.
We would recommend the Angeles District Public Attorney Antonio G. Yao who was appointed to act on their behalf in securing their release should also be facilitated and helped to investigate the legality of their detention and inform the children of their right to seek compensation under Philippine and International Law. The human rights of the children not to be arbitrarily or illegally detained were, and still are being breached for so long as the state fails to provide them with even the knowledge that their rights have been breached and that they have a practical right of redress. If the Working Group decides that these minors have been illegally detained, we hope the Philippines Government may act now to protect other children from similar abuse in the future.
We would like to remind the Working Group in our belief that thousands of minors are being held under similar circumstances throughout the Philippines with little regard paid to their human rights under national or international law. We attached a Newsweek International article in our earlier communication which alleged over 20,000 minors may be detained in similar circumstances throughout the Philippines. Our Jail visits confirm that the problem is large and not isolated to Angeles City.

We would also like to express our gratitude to the Philippine Government for replying so promptly to our allegations.

GENERAL COMMENTS:

We believe that all three minors released were detained arbitrarily and illegally. We also have serious doubts as to the legality of the one remaining prisoner’s detention. Since our initial communications to the United Nations Working Group on Arbitrary Detention we have been able to gain access to and copies of the official court documents relating to the cases of all four detainees. In response to the Philippine Government’s reply we have attached copies of the relevant court documents to confirm our allegations that the detention of the four minor’s may have been arbitrary and illegal, and also to refute many of the Philippines Governments excuses for their detention.

CATEGORY I ARBITRARY DETENTION:

The official court documents annexed to this communication and the Philippines government reply confirm that all three minors now released were detained in Angeles District Jail after the court had ordered their release or transfer. Such comes under Category I, of the Working Group’s definition of Arbitrary detention where it is clearly impossible to invoke any legal basis justifying the deprivation of liberty. The Philippines Government has attempted in their reply to justify the prolonged arbitrary detention of the three minors. For reasons outlined below, we do not believe that there is any possible legal justification for their detention.

CATEGORY III ARBITRARY DETENTION:

We also believe that the annexed official court documents provide strong evidence that the Philippine State totally or partially failed to observe the international norms relating to the right to a fair trial of the three minors released and also to the one remaining prisoner Michael Guevarra y Garcia. We believe the official court documents attached show that all four minors were detained long after the statutory maximum time limits (see next paragraph for Article 125 of Philippines Revised Penal Code), and the internationally recognized general time limits (for example: Article 9.3 International Convention on Civil and Political Rights- “promptly”) for being brought before the proper judicial authorities allow, rendering their detention manifestly illegal and arbitrary.

“ART. 125 Revised Penal Code of the Philippines. Delay in the delivery of detained persons.

-The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of: twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours for crimes or offences punishable by correcional penalties, or their equivalent; and thirty-six (36) hours, for crimes or offences punishable by afflictive or capital penalties, or their equivalent.”

We would like the Working Group to note that in the Philippines Government’s reply it is claimed that all of the minors were initially detained after an Inquest Investigation, or Information filed by the State Prosecutor. Such procedure does not require the presence of the accused or his counsel (and in none of the four cases was counsel for the accused present- a basic human right for any minor in detention), and so the accused cannot be said to have been brought before the “proper judicial authorities” within the exact time limits set down by the said Article 125 or the general time limits under International law, by such a procedure. All four detainees met legal counsel for the first time at their arraignment during their first appearance before the proper judicial authorities which took place a minimum of 12 days after their initial detention in Angeles adult jail.

Article 9.3 of the International Convention on Civil and Political Rights similarly demands that anyone arrested or detained on a criminal charge be ‘promptly’ brought before a judge or other officer authorized by law to exercise judicial power. The attached official court documents show that the earliest any of the four detainees was brought before the proper judicial authorities was after twelve days in an adult prison. We do not believe that 12 days can be regarded as “prompt”. We believe that minors must be given greater protection than this under International Human Rights Law.

From our interviews with the minors we also have grave doubts as to whether the detainees rights under the “Beijing Rules” (UN GA 40/33 1985- Minimum Standards for the Administration of Juvenile Justice), and also the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (GA 45/113 1990) as well as the Universal Declaration of Human Rights, the Convention on the Rights of the Child, and the International Convention on Civil and Political Rights were respected. We feel that detention of all four minors amongst convicted adult prisoners for long after the statutory time limits (when suitable juvenile detention facilities exist in the area), denial of any mental or physical stimuli, and lack of legal assistance amongst other abuses may be of such gravity as to give the deprivation of liberty an arbitrary character (as per Category III of Working Group’s previous definitions of arbitrary detention).

1.CASES OF MANUEL FLORES (Age 13-10)

2.& FELIX CUSIPAG (Age 12):

The Philippines government reports that Manuel Flores is in fact 13 years of age and not 10 as we reported. We regret that Preda Foundation were unable to locate said minor’s birth certificate, to confirm his age. Irrespective of whether Manuel is 13 or not, he is still a very young minor deserving the highest legal protection.

The Philippines government confirms that Manuel and Felix were arrested on the 31st May 2002, and also that they were detained at Angeles District Jail, Pampanga Province, Philippines. All four minors were detained in a small cell within a block, admitted by the Philippines Government as, overcrowded with adults convicted of serious offenses.

We can confirm with court document marked “A” copy annexed hereto that Manuel and Felix were not arraigned until the 14th June 2002. Therefore, both minors spent fifteen days in an adult jail before being brought before the proper judicial authorities. On our visit to the jail on 24th June 2002, neither Manuel nor Felix could remember ever having been in a courtroom, nor of any meeting with a lawyer.

Basic International Human Rights Law requires that minors in detention be promptly informed in a language that they understand of the charges against them, and also be provided with competent legal counsel.

At the arraignment on the 14th June 2002 both minors pleaded guilty to the offense of vagrancy. Judge Ofelia Tuazon Pinto of Regional Trial Court Branch 60, ordered both minors to be immediately released to the custody of their respective parents or if their parents were unavailable the City Jail Warden was directed to release them to the Bahay Bata juvenile center (See court order document marked “A” attached herewith). The Philippines government reply confirms this.

However, the Philippines government reply claims that both minors were only detained after June 14th because of failure to locate said minor’s parents. We believe the court order demanded their placement within Bahay Bata juvenile center immediately after the court order was made, if their parents were unavailable to take custody of them immediately. We feel that there can be no legal justification for their continued detention in an adult jail, rather than a juvenile center after this court order was made. We do not feel the Philippine Government reply blaming the parents of these minors is a legally acceptable excuse.

We can confirm that Felix Cusipag was released by the jail to the custody of his mother, hours after our first visit to the jail on the 24th June 2002. We feel therefore that Felix was arbitrarily detained for at least ten days after the court ordered his release or transfer.

The Philippine Government reply does not state when Manuel Flores was released. We can confirm with copy of court document marked “B” annexed hereto that Judge Ofelia Pinto of Branch 60 Regional Trial Court, Angeles City, after receiving a letter from Preda Foundation, ordered on the 5th July 2002 the City Jail Warden to explain within five days why Manuel Flores was still detained in Jail despite her court order releasing him on June 14th 2002. With copy of court document marked “C”, annexed hereto, the City Jail Warden replied that pursuant to her further order, Manuel had been transferred to Bahay Bata Center. No excuse for Manuel’s prolonged detention was given by the City Jail Warden, and no mention was made of a failed search for Manuel’s parents. We therefore feel that Manuel was arbitrarily detained in Angeles Jail for twenty-two days after the court ordered his release or transfer.

We feel that Judge Pinto’s letter (annex B) is clear evidence that both Manuel, and Felix were arbitrarily detained from the 14th June 2002. This is in addition to and without prejudice to our assertion that their initial pre-trial detention of fifteen days may have been illegal and arbitrary.

3. CASE OF HADJI SALIK CAMARODING (Aged 17):

The Philippine Government reply confirms that Camaroding was detained at Angeles District Jail on 15th March 2002. With copy of court order document marked “D” annexed hereto we can confirm that Camaroding was arraigned, and sentenced on the 3rd April 2002. We feel that the documents attached confirm that Camaroding was not brought before the proper judicial authorities for twenty days after his initial arrest. Similar to the cases of Manuel Flores and Felix Cusipag we feel that this period of detention in an adult Jail before being given the opportunity to assert his legal rights is a breach of Article 125 of the Philippine Legal Code and also International Human Rights Law (Article 9.3 International Convention on Civil and Political Rights, U.N “Beijing Rules”, and other International Human Rights Instruments).

As Camaroding was a youthful offender the sentence was suspended, and he was ordered to be transferred to the Central Luzon Drug Rehabilitation Clinic (see attached court order).

His transfer seems to have been delayed because of an application made by Camaroding on May 3rd 2002 to be transferred to a rehabilitation clinic in the south of the country, Mansawi Drug Rehabilitation Center, closer to his grandparents who wished to take care of him. On May 6th 2002 Judge Pinto of Regional Trial Court, Branch 60, Angeles City, ordered his transfer to said rehabilitation center. However the Jail Warden by motion dated 9th May 2002 opposed the transfer due to lack of resources to facilitate the transfer. This application was accepted on May 17th 2002. On that date Judge Pinto ordered the Jail Warden to immediately transfer Camaroding to Central Luzon Drug Rehabilitation Center.

Please find copy of said court document marked “E” annexed hereto. We feel that from May 17th 2002 there is no legal justification possible, or given by the Philippine Government, for Camaroding’s continued detention in an adult Jail.

The Government reply categorically states that Camaroding’s transfer to Central Luzon Drug Clinic was delayed because the parent’s of Camaroding failed to show up at the jail until July 5th 2002 when they finally appeared and accompanied the minor to the clinic. The Government reply also states that the consent of the minor’s relatives was needed as part of the requirements for admission to the drug center. We can confirm with document marked “B” annexed hereto that on July 5th 2002, after receiving a letter from Preda Foundation on the same day, Judge Pinto of the Regional Trial Court, Branch 60, had ordered the City Jail Warden to immediately account for Camaroding’s continued detention within Angeles District Jail.

With document marked “F” annexed hereto we can confirm that pursuant to such letter from the judge, on the 5th July 2002 the City Jail Warden immediately transferred Camaroding to the drug clinic, without offering Judge Pinto any excuse for Camaroding’s prolonged detention.

We can also confirm that the Central Luzon Drug Rehabilitation Center’s Memorandum of Acceptance of Camaroding reports that he was accompanied only by the Philippine National Police and not his parents. Unfortunately we have not been able to secure a copy of this document. Furthermore, document marked “G” annexed hereto contradicts the governments assertion that the parent’s consent was needed before he could be committed to the dug clinic. The document summarizing the drug center’s rules of procedure makes it clear that once there is a court order, the parent’s consent is not required for a minor to be accepted for rehabilitation.

We believe therefore that Camaroding suffered from two periods of arbitrary detention; for twenty days after his initial detention and for a further twenty days after the court gave the final, unconditional order for him to be transferred to Central Luzon Drug Rehabilitation Center.

4. THE CASE OF MICHAEL GUEVARRA (AGE UNCONFIRMED, POSSIBLY BETWEEN 17-19):

The Philippines government reply disputes that Michael is in fact a minor. They claim that court records show him to be eighteen years of age and so they have treated him as an adult in criminal proceedings. The court documents do not contain a birth-certificate for Michael. Staff from Preda carried out an exhaustive search in the civil registry and at Michael’s given address for his birth-certificate but were unable to locate any proof of his age.

Nevertheless, Michael has always maintained that he was born November 9th 1984, making him 17 years of age and a minor. We believe that the Burden of Proof in showing that Michael is not a minor lies firmly on the state. In such circumstances where doubt exists, Michael should be treated as a minor until the state furnishes evidence to prove otherwise or until the proper judicial authorities have made a decision on such.

In that situation Michael should have been ordered transferred to a juvenile center upon his initial Preliminary Investigation or Arraignment, to await trial. He should have been treated as having the same rights under Philippine Law and International Human Rights Law as all other Filipino minors.

Irrespective of whether Michael is determined to be a minor, we believe that he has also been arbitrarily detained. Copy of official court document marked “H” annexed hereto confirm that Michael was arrested and detained on the 21st April 2002. However, Michael was not arraigned until May 2nd 2002 as is shown by copy of court document marked “I” annexed hereto. That document shows that by May 2nd 2002, twelve days after his initial detention, Michael still had no legal representation appointed to him, and similar to the three other minors had not been brought before the proper judicial authorities “promptly’ or within the required statutory time limits. Fundamental International Human Rights Law provides for much greater protection than this for all prisoners in detention.

We also believe that Michael’s treatment as an adult breaches Article 3.3 of the United Nations “Beijing Rules” on the Administration of Juvenile Justice which demands that young adults in detention be given the same rights as minors.

We regret that in our latest update to the United Nations Working Group on Arbitrary Detention, sent by E-mail on the 25th July 2002 we claimed that Michael had been released after pleading guilty to participating in illegal lotteries and fined the equivalent of 6 US Dollars. This was the information that we received from the Chief Public Attorney’s Office here in the Philippines, and appears to have related to a separate charge that Michael faced. We have confirmed that Michael is still in detention. We apologize for any confusion caused.

OUR REPLY TO PHILIPPINE GOVERNMENT’S GENERAL COMMENTS

From our visits to the jail we can confirm that all four minors shared the same small cell in a block full of adults convicted of the most serious offenses. The cell was three meters by six, with an open toilet in the corner. The children slept on the concrete floor. The cell was unventilated, and there was no mental stimuli provided to the children whatsoever. We had to provide the children with clothes, sandals and basic sanitary items. We regret that the Philippines Government feels that we exaggerated the conditions of the children detention, as we felt we had minimized them. We have also just been informed of a Hepatitis and T.B epidemic in the prison block where Michael Guevarra y Garcia continues to be detained.
The Philippine Government asserts that the minors were allowed recreational activities and at least five hours sunning time in open space every day. The children informed us that a maximum of one hour a day was permitted outside the cell for games. The other four hours the Government referred to was time when the minors were allowed to freely mingle throughout the prison block amongst the convicted adult prisoners. Such is a breach of fundamental International Human Rights Law.
The Philippines Government claims that social workers from the Department of Social Welfare and Development visited the minors in jail and conducted social studies. We have confirmed that only one visit from a Department of Social Welfare and Development social worker took place.
The Philippine Government claims we were incorrect in saying that all the minors were arrested without an arrest warrant. However, they say that no arrest warrants were obtained as the minors were all caught in flagrante delicto. We do not dispute that all the children were received at Angeles District Jail by virtue of the result of proper Inquests/Preliminary Investigations carried out by the Prosecutor.
We do however question his authority under national and international law to place children in adult detention facilities, when more suitable juvenile facilities exist. We also question the failure to bring the minors before the proper judicial authorities within required time limits and to release them after judicial orders to do so.

We support the ongoing work of the Council for the Administration of Justice in Angeles City. However, while the Philippines government can very easily point to adequate legal protection and safeguards provided by it’s laws and Constitution for the protection of children’s rights, we feel that the Philippines Government should instead be made to account for what we feel is the very wide discrepancy between the laws as they exist, and the laws as they are practiced.
THE END