Pestano Vs RP

PESTAÑO VS THE PHILIPPINES
FACTS:
Phillip Pestaño was an Officer of the Philippine Navy serving as cargo officer of the ship “BRP
Bacolod City” during its Mindanao voyage in September 1995. On or about 25 September 1995,
the ship’s Commander permitted the loading of more than 14,000 board feet of logs onto the
BRP Bacolod City, without proper papers or authorization. Phillip vehemently objected to the
loading of such unauthorized cargoes. Phillip consequently suffered a mysterious death, to
which, the police ruled that he committed suicide – founding a note beside his body. His parents
were of the belief that there was foul play involved as Pestaño spoke of his perceived
irregularities in the shipment of BRP Bacolid City.
On 2 January 1996, Spouses Pestaño received a leaked copy of an intelligence report of the
Armed Forces, which stated that the BRP Bacolod City carried 1 billion pesos worth of shabu in
20 sacks of rice during its September 1995 trip. The report also indicated that this shipment had
been escorted by a Security Officer of the Navy Flag Officer in Command, and that upon
discovering the illegal cargo, Phillip had confronted his superior, and was killed afterwards, to
prevent him from revealing the criminal activities taking place on board the ship. This
confidential report also identified the chief security officer of the Navy Flag Officer in Command
as the most likely perpetrator of the crime.
Spouses Pestaño filed complaints against the Commanding Officer and certain crew members of
the BRP Bacolod City: (1) in September 1995 with the Philippine Navy; (2) in September 1995
with the Philippine National Police and the National Bureau of Investigation of the Department
of Justice. Both proceedings led to the conclusion that Phillip had committed suicide; (3) in
January 1998 with the Philippine Senate (Committees on Justice-Human Rights and Defense-
National Security); (4) in March 2000 with Ombudsman Aniano Desierto; (5) and in October
2005 with a new Ombudsman (Simeon Marcelo), who was replaced thereafter. No action was
taken on the case by the new Ombudsman, Merceditas Gutierrez, since she took office in
December 2005.
After filing their complaint with the Office of the Ombudsman on 27 October 2005, in December
2005, the Ombudsman found merit in the spouses’ petition, reopened the case, and requested
from the Commanding Officer of the BRP Bacolod City in September 1995, and from eight
senior and junior officers and enlisted personnel to submit counter-affidavits as respondents,
within ten days. However, only one week after reopening the spouses’ case, the Ombudsman
stepped down, and was replaced. Since then, the case was left uninvestigated in the Office of the
Ombudsman for military affairs.
On 25 January 1998, after eight Committee hearings, a visual inspection of Phillip’s stateroom in
the ship, and relying, inter alia, on expert evidence and witness testimonies, two Senate
Committees issued a Joint report on the Pestaño case, which contained the following findings: (i)
Phillip did not kill himself on the BRP Bacolod City on 27 September 1995; (ii) he was shot in
one place in the vessel different from the one where his body was found; (iii) after his death, his
body was moved and laid on the bed where it was found; (iv) he must have been shot on board
the BRP Bacolod City before the vessel reached the Navy Headquarters on 27 September 1995;
(v) there was a deliberate attempt to make it appear that Phillip killed himself inside his
stateroom; and (vi) such an attempt was so deliberate and elaborate that one person could not
have accomplished it by himself. The Senate Committees also recommended, inter alia, that an
independent investigation be conducted on the circumstances surrounding Phillip’s murder, so as
to bring the perpetrators to justice, and identify the other individuals who participated in the
deliberate attempt to portray a suicide.
ISSUE: Whether there was foul play in the death of Navy Officer Phillip Pestaño
HELD:
UNHRC’s findings
There was violation of Article 6 of the ICCPR
As regards the alleged violation by the Philippines of Article 6 of the ICCPR, the HRC stated –
referring to the ICCPR as the Covenant - that it:
“recalls that the right to life is the supreme right, from which no derogation is permitted. It
further recalls that States parties have a positive obligation to ensure the protection of individuals
against violations of Covenant rights, which may be committed not only by its agents, but also
by private persons or entities. The Committee also refers to its jurisprudence, according to which
both a criminal investigation and consequential prosecution are necessary remedies for violations
of human rights such as those protected by article 6. A violation of the Covenant may therefore
arise as a result of a State party’s failure to take appropriate measures to punish, investigate or
redress such a violation.”
“7.2 Despite the initial findings of the Philippine National Police and Department of Justice,
which both concluded in October 1995 that the victim had committed suicide, it now appears
undisputed that the death of Phillip Pestaño was a violent one, resulting from a homicide. The
Philippine Authorities’ submissions of 18 January and 8 May 2008, contending that Spouses
Pestaño’s case was “an ordinary criminal case”, at least concede this fact…”
Violation of Article 2, paragraph 3(a) of the ICCPR
The UNHRC states that “Under article 2, paragraph 3(a), of the Covenant, the Philippines is
under an obligation to provide Spouses Pestaño with an effective remedy in the form, inter alia,
of an impartial, effective and timely investigation into the circumstances of their son’s death,
prosecution of perpetrators, and adequate compensation. The Philippines is also under an
obligation to prevent similar violations in the future.”
In ending, the UNHRC relayed its wish “to receive from the Philippines, within 180 days,
information about the measures taken to give effect to the Committee's Views.”
Violation of Article 9, paragraph 1 of the ICCPR
In claiming violation of article 9 paragraph 1of the Covenant, the UNHRC stated that “Spouses
Pestaño claim that they received an anonymous call, informing them that their son’s life was in
danger, the day before he was found dead. However, there is no evidence that Spouses Pestaño
reported these threats against their son to Philippine authorities, and if so, that the Philippine
Authorities failed to take appropriate action for this protection. Nor is there any conclusive
evidence that the Philippine Authorities were involved in threatening Phillip Pestaño. In the
absence of any further arguments put forward by Spouses Pestaño on this issue, the Committee
considered that these claims are not sufficiently substantiated for the purposes of admissibility
and therefore inadmissible ...
Violation of Article 17, paragraph 1 of the ICCPR
The UNHRC ruled similarly regarding the alleged violation of Article 17 paragraph 1 of the
Covenant since Spouses Pestaño claim that “the Philippine Authorities’ attempt to make it
appear that Phillip Pestaño committed suicide, is to be construed as an unlawful attack against
his honour. The Committee considered that this claim was not sufficiently substantiated for the
purposes of admissibility, and is inadmissible …”

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Pestano Vs RP

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PESTAÑO VS THE PHILIPPINES

There was violation of Article 6 of the ICCPR

Violation of Article 2, paragraph 3(a) of the ICCPR

Violation of Article 17, paragraph 1 of the ICCPR

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