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A/HRC/WGAD/2022/14

Opinion No. 14/2022 concerning Teresita Naul (Philippines)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2022-04-08 · en UN

Opinion; Subjects: PHILIPPINES, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]

Volltext (verifizierbarer Originaltext)

GE.22-09190(E)

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its ninety-third session, 30 March–8 April 2022

Opinion No. 14/2022 concerning Teresita Naul (Philippines)

1.

The Working Group on Arbitrary Detention was established by resolution 1991/42 of

the Commission on Human Rights of the United Nations. In its resolution 1997/50, the

Commission extended and clarified the mandate of the Working Group. Pursuant to General

Assembly resolution 60/251 and Human Rights Council decision 1/102, the Council assumed

the mandate of the Commission. The Council most recently extended the mandate of the

Working Group for a three-year period in its resolution 42/22.

2.

In accordance with its methods of work,1 on 11 August 2021 the Working Group

transmitted to the Government of the Philippines a communication concerning Teresita Naul.

The Government replied to the communication on 6 September 2021. The State is party to

the International Covenant on Civil and Political Rights.

3.

The Working Group regards deprivation of liberty as arbitrary in the following cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or her

sentence or despite an amnesty law applicable to him or her) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,

26 and 27 of the Covenant (category II);

(c)

When the total or partial non-observance of the international norms relating to

the right to a fair trial, established in the Universal Declaration of Human Rights and in the

relevant international instruments accepted by the States concerned, is of such gravity as to

give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or remedy

(category IV);

(e)

When the deprivation of liberty constitutes a violation of international law on

the grounds of discrimination based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation, disability,

or any other status, that aims towards or can result in ignoring the equality of human beings

(category V).

1 A/HRC/36/38.

United Nations

A/HRC/WGAD/2022/14

General Assembly

Distr.: General

14 June 2022

Original: English

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Submissions

Communication from the source

4.

Teresita Naul is a national of the Philippines and was born on 16 August 1957. She

usually resides in the Municipality of Opol, Province of Misamis Oriental, the Philippines.

5.

The source reports that Ms. Naul is a member of the Secretariat of the Union of

Peoples’ Lawyers in Mindanao, Cagayan de Oro Chapter, and a member of the national

council of Karapatan. Her work largely involves providing aid to alleged political prisoners

and victims of human rights violations. After graduating from college, she moved to Cagayan

de Oro and worked for Task Force Detainees of the Philippines, a non-governmental

organization, where she organized calls for the release of alleged political detainees and of

persecuted members of marginalized sectors.

6.

According to the source, Ms. Naul was arrested on 15 March 2020, in the Province of

Lanao del Sur, on the southern island of Mindanao. She had reportedly left a family member’s

house in Barangay San Manuel, Lala, Lanao del Norte, while a warrant of arrest was being

served. Ms. Naul was then arrested in a nearby rice field by officials of the Fourth Infantry

Division and the Second Mechanized Infantry Brigade, Mechanized Infantry Division of the

Philippine Army, of the Criminal Investigation and Detection Group of the Philippine

National Police and of Police Regional Office 10. The officials shoed a warrant issued by

Regional Trial Court, Branch 7, in Bayugan City, Agusan del Sur.

7.

According to the information received, Ms. Naul was arrested on charges of

“destructive arson” (article No. 320 of the Revised Penal Code of the Philippines (criminal

case No. 6524)), “kidnapping and serious illegal detention” (article No. 267 of the Code

(criminal cases No. 6525 and No. 6527)) and “robbery with violence against or intimidation

of persons” (article No. 195 of the Code (criminal case No. 6526)), all with no fixed bail,

issued by the Regional Trial Court, Branch 7, Bayugan City, Agusan del Sur.

8.

The source submits that the charges were brought on the basis of a complaint lodged

by officials of the Municipal Police Station in Sibagat and another individual whose identity

remains uncertain, as no documentation was provided to Ms. Naul about the complaint. The

source notes that, according to credible sources, that individual is a relative of an alleged

victim of kidnapping and serious illegal detention (criminal case No. 6527), who is believed

to be a member of the Citizen Armed Force Geographical Unit. The source specifies that the

Unit is an irregular auxiliary force of the Armed Forces of the Philippines.

9.

The source explains that the charges were brought in May 2019 in connection with a

military offensive that was allegedly conducted by the New People’s Army, an armed rebel

group, against the Philippine Army. The incident took place at around 3 a.m. on 19 December

2018, at the patrol base located in New Tubigon, Sibagat, Agusan del Sur. Ms. Naul was

accused, along with other individuals, of allegedly having attacked and burned the patrol base

and of having abducted members of the Civilian Armed Forces Geographical Unit Active

Auxiliary.

10.

According to the source, the court order stated that all the accused had allegedly

deliberately, feloniously and forcibly entered the patrol base located in New Tubigon by

destroying the wooden perimeter fence, and that while inside, the suspects had pointed their

firearms of unknown calibre at the victims and threatened them and had unlawfully taken

government-issued firearms against the will of the victims. When all the victims, including

2 Philippine Army soldiers and 12 on-duty members of the Civilian Armed Forces

Geographical Unit Active Auxiliary, had been neutralized, they were taken as hostages.

Thereafter, all suspects intentionally burned the patrol base, which caused damage totalling

100,000 pesos. All the victims were then forcibly taken to the mountainous area of Agusan

del Sur.

11.

The source submits that the above-mentioned charges were fabricated and that

evidence is available demonstrating that on that day, Ms. Naul was in another part of the

country.

12.

The source reports that on the day of her arrest, Ms. Naul was transferred to Cagayan

de Oro City, where she was temporarily held in one of the detention cells of the Criminal

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Investigation and Detection Group, which is the primary investigative arm of the Philippine

National Police, at Camp Evangelista in Cagayan de Oro, where the Fourth Infantry Division

of the Philippine Army is stationed

13.

On 17 May 2020, Ms. Naul was transferred to the provincial detention and

rehabilitation centre of Agusan del Sur, which is located in the Municipality of Prosperidad,

where she remains detained. The forces holding the detainee in custody were reported to be

the Provincial Correctional and Security Management Office, Agusan del Sur.

14.

It is reported that Ms. Naul is being detained under the initial arrest warrant issued by

the Regional Trial Court; the Court, however, set no fixed bail. The source specifies that Ms.

Naul has not yet been brought before a court to answer criminal charges, and faces continued

detention until her arraignment.

15.

The source states that on 10 July 2020, an omnibus motion for reconsideration of the

judicial finding of probable cause, seeking to quash the warrant of arrest with urgent motion

to defer the implementation thereof, was filed on behalf of Ms. Naul before Regional Trial

Court, Branch 7, in Bayugan City, Agusan del Sur. The motion is still pending resolution.

16.

Subsequently, on 10 March 2021, a supplemental manifestation in support of the

previously filed omnibus motion was filed before the same court. The supplemental

manifestation contained as an attachment a report of the Commission on Human Rights of

the Philippines, in which, the source states, the Commission found that Ms. Naul’s right to

protection of her reputation and honour was violated by reason of her being “red-tagged” (the

practice of blacklisting individuals or organizations critical or not supportive of government

policy and actions).

17.

The source also reports that prisons have become a hotspot for the coronavirus disease

(COVID-19), and that Ms. Naul remains detained in overcrowded and unsanitary conditions

that put her life at imminent risk. She suffers from asthma and has a heart condition.

18.

The source submits that the detention of Ms. Naul is arbitrary and falls into categories

I, II, III and V of the Working Group. It argues that her arrest and detention lacked sufficient

evidence, were a direct consequence of her work as a human rights defender and were

procedurally flawed.

19.

In relation to category I, the source specifies that there is no legal basis for the

detention of Ms. Naul. The charges under which she is detained stem from a military

offensive allegedly conducted by the New People’s Army, an armed rebel group, against the

Philippine Army. However, according to the source, the complaints failed to establish the

positive identities of Ms. Naul and 22 other individuals indicted in the same case as being the

perpetrators of, or participating in, the crimes committed at 3 a.m. on 19 December 2018.

20.

The source adds that Ms. Naul and the other 22 individuals indicted in the case

submitted proof of their respective activities and locations at the time of the crime. Records

show that on 19 December 2018, Ms. Naul was brought to St. Ignatius Hospital in Cagayan

de Oro City to undergo laboratory examinations to determine the causes of the bronchitis and

asthma that she was experiencing at the time. On 20 December 2018, Ms. Naul was brought

to Polymedic General Hospital for further medical testing. The source states that the

evidence, her hospital records, has been rejected by the prosecution.

21.

In relation to category II, the source argues that the current deprivation of liberty of

Ms. Naul results from the exercise of universally recognized human rights, in particular the

rights to freedom of opinion, expression and association.

22.

The source recalls that freedom of opinion and expression and of association are

fundamental human rights enshrined in articles 19 and 20 of the Universal Declaration of

Human Rights and articles 19 and 22 of the International Covenant on Civil and Political

Rights, to which the Philippines is a State party. The source submits that the Government

must respect, protect and fulfil the right to hold and express opinions, including those that

are not in accordance with its official policy, as well as to manifest personal convictions at

odds with its official ideology, under the jus cogens of customary international law.

23.

The source notes that the Human Rights Committee, in its general comment No. 34

(2011) on the freedoms of opinion and expression, stated that restrictive measures on freedom

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of expression must not be overbroad, and that they must conform to the principle of

proportionality; they must be appropriate to achieve their protective function; they must be

the least intrusive instrument among those which might achieve their protective function; and

they must be proportionate to the interest to be protected. The Committee notes that the value

placed by the Covenant upon uninhibited expression is particularly high in the circumstances

of public debate in a democratic society concerning figures in the public and political domain.

24.

The source submits that Ms. Naul has been deprived of her liberty as a result of

politically motivated charges brought against her. The charges clearly appear to be retaliation

for her human rights work, constituting a violation of her right to equality before the law.

The source reiterates that while the police claim that she is a member of the New People’s

Army and could, as such, have participated in the attack on the military in Agusan del Sur in

December 2018, there is evidence proving that she was in another part of the country on that

day.

25.

The source states that Ms. Naul is among numerous human rights defenders who have

been identified by the Government as part of a practice of red-tagging. In the case of Ms.

Naul, she was reportedly accused of being a member of a front group for the armed wing of

the Communist party.

26.

According to the source, the Government has not only failed in its duty to take the

measures necessary to prevent and halt discrimination against Ms. Naul on the basis of her

status as human rights defender, but has also actively participated in those arbitrary actions

by the misusing the criminal justice system through the practice of red-tagging.

27.

The source recalls that a number of government-controlled media outlets reported that

Ms. Naul was involved in a progressive human rights group believed to be a front

organization for the Communist Party of the Philippines. The source claims that the existence

of such reports further indicates that Ms. Naul’s arrest and subsequent detention form part of

a broader attack on independent civil society and human rights defenders in the Philippines,

and on Karapatan in particular. The source notes that, in response to similar accusations, the

organization was cited numerous times in the report of the Secretary-General on reprisals

dated 25 September 2020.2

28.

The source submits that Ms. Naul’s arrest and detention based on her status as a

member of Karapatan constitutes an unlawful restriction of freedom of association, in

violation of article 20 of the Universal Declaration of Human Rights and article 22 of the

Covenant.

29.

In relation to category III, the source submits that Ms. Naul has been denied her

fundamental right to a fair trial, which is guaranteed by article 10 of the Universal Declaration

of Human Rights and articles 14 and 16 of the Covenant.

30.

The source specifies that, in the present case, international norms relating to the right

to a fair trial have not been totally or partially observed. The source recalls that Ms. Naul was

not officially provided with copies of the complaints, as required by domestic law. She was

made aware of the cases brought against her only informally.

31.

Moreover, the source states that Ms. Naul and the 22 others indicted in the same case

were not named in the original complaint, but they were subpoenaed by the prosecutor despite

that omission. The name of Ms. Naul was later included in the supplemental complaints that

were filed by the alleged victims of kidnapping. Nonetheless, as with the original complaint,

Ms. Naul was not officially furnished a copy of the supplemental complaints. The source

submits that the failure to provide Ms. Naul with access to the relevant documentation was

contrary to national law.

32.

It is recalled by the source that the complaints failed to establish positive identification

of Ms. Naul and the other 22 individuals as being the perpetrators of, or participating in, the

crimes committed at 3 a.m. on 19 December 2018. The evidence that Ms. Naul has provided

– hospital records proving that on 19 December 2018, she was brought to St. Ignatius

Hospital in Cagayan de Oro City to undergo laboratory examinations and that on 20

2 A/HRC/45/36, annex II.

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December 2018, she was brought to Polymedic General Hospital for further medical testing

– has been rejected by the prosecution.

33.

In relation to category V, the source submits that while the deprivation of liberty of

Ms. Naul has resulted from the active violation of civil and political rights, there is a strong

presumption that it also constitutes a violation of international law on the grounds of

discrimination based on political or other views. The source submits that, in particular, Ms.

Naul is being discriminated against on the basis of her status as a human rights defender and

in violation of her rights to equality before the law and to equal protection of the law under

article 26 of the Covenant.

Response from the Government

34.

On 11 August 2021, the Working Group transmitted the allegations from the source

to the Government of the Philippines under its regular communications procedure. The

Working Group requested the Government to provide, by 12 October 2021, detailed

information about Teresita Naul and to clarify the legal provisions justifying her continued

detention, as well as its compatibility with the obligations of the Philippines under

international human rights law, and in particular with regard to the treaties ratified by the

State.

35.

On 6 September 2021, the Government submitted its response, in which it informed

the Working Group that, based on the information received on 16 August 2021, the trial court

had quashed the criminal information against Ms. Naul for its failure to establish her

participation in the crimes she allegedly committed. As a result, Ms. Naul had already been

released from detention, rendering moot the request and arguments of the Working Group.

36.

The Government considers it important to address the points raised in the Working

Group’s communication, stressing in that regard that neither the Government of the

Philippines nor any of its organs violated Ms. Naul’s constitutional rights or the established

principles of international law.

37.

In its response to the communication from the source, the Government considered the

issues contained therein (see paras. 38−57 below) and summarized the points the source

raised in Ms. Naul’s case. In respect of the allegations regarding the legality of Ms. Naul’s

detention, the Government noted the following:

(a)

Her arrest and detention were allegedly based on insufficient evidence and

were a direct consequence of her work as a human right defender;

(b)

Several alleged procedural irregularities in the conduct of Ms Naul’s case were

cited as evidence that she was denied her fundamental right to a fair trial;

(c)

It is alleged that prisons have become a hotspot for COVID-19 and that Ms.

Naul remains detained in overcrowded and unsanitary conditions that put her life at imminent

risk, and it is noted that Ms. Naul has filed a request for entitlement to other custodial

remedies pending the resolution of her case.

38.

The Government emphasizes that Ms. Naul has been charged with the following non-

bailable offences: destructive arson (article 320 of the Revised Penal Code), kidnapping and

serious illegal detention (article 267 of the Code) and robbery with violence against or

intimidation of persons (article 195 of the Code). It submits that Ms. Naul’s plea for

provisional release should have been addressed to the court having jurisdiction of her case.

Under Philippine laws, the temporary release of an accused can be granted only through

either bail or recognizance. The Government refers to section 5 of the Recognizance Act of

2012 (Republic Act No. 10389).

39.

The Government refers to the right to bail provided under section 7, rule 114 of the

Rules of Court. which stipulates that a capital offence or an offence punishable by reclusion

perpetua, or life imprisonment, is not bailable, regardless of the state of the criminal

prosecution. Moreover, under article III (13) of the 1987 Constitution of the Philippines,

those charged with such offences, when evidence of guilt is strong, are not entitled to bail

before conviction. The Government explains that the determination of whether the evidence

of guilt is strong must, however, be made before the trial court where the information was

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filed. In addition, in the case of an offence punishable by reclusion perpetua, the granting of

bail is a matter of discretion on the part of the trial court, and cannot be allowed unless the

prosecution has been notified of the hearing. The Government further submits that the

indispensability of conducting a hearing with notice to the prosecution has been explained in

a number of cases decided by the Supreme Court.3

40.

In respect of Ms. Naul’s assertion that she has been denied her fundamental right to a

fair trial, the Government notes that there is a question of fact when doubt arises as to the

truth or falsity of the alleged facts.4 The Government submits that the question posed by Ms.

Naul should be addressed to the trial court having jurisdiction over her case, as it involves

assertions that raise questions of fact, which in practice are addressed to the sound discretion

of the court.

41.

On the current situation caused by the COVID-19 pandemic, the Government

highlights the lockdowns and physical closures of government agencies, including the courts,

making it difficult, if not impossible to address and dispose all of the courts’ docket with

dispatch. Nevertheless, since the start of the pandemic, the Supreme Court has adopted

measures not only to decongest detention facilities but also, in the light of the increasing

number of COVID-19 cases, to provide the necessary protection and safety to lawyers, judges

and litigants.

42.

The Government refers to several circulars on COVID-19-related matters, including

on the release of qualified persons deprived of liberty, on the electronic filing of criminal

complaints and information, and posting of bails, on the conduct of fully remote

videoconference hearings, on the online filing of complaints or information and posting of

bail due to the rising number of cases of COVID-19 infection and on creating a task force to

address the rising number of cases of COVID-19 infection.

43.

On the basis of the foregoing, the Government submits that it is clear that Ms. Naul

has not been left without any legal recourse in asserting her claims.

44.

In respect of Ms. Naul’s invocation that she be allowed to be released on the grounds

that the unsanitary conditions at jail facilities put her life at imminent risk, the Government

submits that such assertion violates the equal protection clause of the 1987 Constitution, as

Ms. Naul is attempting to set herself apart by making an unwarranted and impermissible

classification. In that regard, the Government refers to article III (1) of the Constitution,

which provides that no person shall be deprived of life, liberty or property without due

process of law, nor shall any person be denied the equal protection of the laws.

45.

In supporting its position, the Government likens Ms. Naul’s case to the recent case

entitled “In the Matter of the Urgent Petition for the Release of Prisoners on Humanitarian

Grounds in the Midst of the COVID-19 Pandemic” (Almonte et al. v. People of the

Philippines),5 wherein the Supreme Court directed the petitioners to file their respective

applications for bail in the courts where their criminal case was pending, after treating the

petitions as applications for bail or recognizance. Adopting the arguments raised by the

respondents therein, the Government argues that, in the present case, the equal protection

clause exists to prevent undue favour or privilege. Recognizing the existence of real

differences among individuals, the equal protection clause does not demand absolute

3 For example, in Enrica B. Aguirre and Nenita A. Dela Cruz v. Judge Candido R. Belmonte, the

Supreme Court of the Philippines held that it was an established legal principle that when an offence

was punishable by reclusion perpetua, the trial court must conduct a hearing in a summary

proceeding, to allow the prosecution an opportunity to present, within a reasonable time, all evidence

it might desire to produce to prove that the evidence of guilt against the accused was strong, before

resolving the issue of bail for the temporary release of the accused (Administrative Matters No. RTJ-

93-1052, Resolution, 27 October 1994).

4 Supreme Court of the Philippines, Far Eastern Surety and Insurance Co., Inc. v. People of the

Philippines, General Register No. 170618, Decision, 20 November 2013.

5 Supreme Court of the Philippines, General Register No. 252117, Decision, 28 July 2020.

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equality. It merely requires that all persons be treated alike, under like circumstances and

conditions, both as to the privileges conferred and liabilities enforced.6

46.

In Remman Enterprises, Inc. v. Professional Regulatory Board of Real Estate

Service,7 the Court, citing Ichong v. Hernandez and Sarmiento,8 explained the concept of

equal protection: the equal protection of the law clause is against undue favour and individual

or class privilege, as well as hostile discrimination or the oppression of inequality. It is not

intended to prohibit legislation that is limited either in the object to which it is directed or by

territory within which it is to operate. It does not demand absolute equality among residents;

it merely requires that all persons be treated alike, under like circumstances and conditions

both as to privileges conferred and liabilities enforced. The equal protection clause is not

infringed by legislation which applies only to those persons falling within such class, and

reasonable grounds exist for making a distinction between those who fall within such class

and those who do not.

47.

On the issue of equal protection, the Government concludes that the Constitution does

not require absolute equality. It is enough that all persons under like circumstances or

conditions are given the same privileges and required to meet the same obligations.9 The

Government reiterates that the equal protection of the law clause is against undue favour and

individual or class privilege, as well as hostile discrimination or the oppression of

inequality.10 To give preference to the petitioners, among all other prisoners languishing in

jail for their criminal infractions, is tantamount to giving them preferential treatment or undue

favour, and discriminating against all the other prisoners.

48.

In Remman Enterprises, Inc. v. Professional Regulatory Board of Real Estate Service,

the Government maintained that there was no substantial difference which set the petitioners

(who likewise claimed themselves as political prisoners) apart from all other persons detained

in jail. The petitioners were not a unique class that should be treated differently. The

petitioners should be treated like all the other prisoners in the entire country, regardless of

age, health and status. Like other prisoners, they were under detention because they had

violated the law. To give preference to the petitioners’ release over the release of all other

similarly situated prisoners would give them undue favour and would result in inequality and

discrimination.

49.

The Government addresses the allegations that Ms. Naul’s arrest and detention formed

part of a broader attack on independent civil society and human rights defenders in the

Philippines, or red-tagging, and on Karapatan in particular, as well as the numerous

references contained in the report of the Secretary-General on reprisals.11 In regard to red-

tagging and the alleged reprisals against Karapatan, the Government cites extensively the

responses provided to the Secretary-General in its report, The Philippine Human Rights

Situationer.12 The Government submits that it has exhaustively addressed allegations in

respect of Karapatan in its response to draft reports of the Secretary-General on reprisals as

well as in the Situationer. The Government refers to the Supreme Court verdict dismissing

allegations of extrajudicial killings, reprisals, intimidation, threats and red-tagging in the

highly publicized case filed by Karapatan, Gabriela National Alliance of Women and the

Rural Missionaries of the Philippines.13 In that case, the petitioners alleged that officials of

the National Task Force to End Local Communist Armed Conflict had viciously red-tagged

them as front organizations for the Communist Party of the Philippines-New People’s Army-

6 Supreme Court of the Philippines, Himagan v. People of the Philippines, General Register No.

113811, Decision, 7 October 1994.

7 Supreme Court of the Philippines, General Register No. 197676, Decision, 4 February 2014.

8 Supreme Court of the Philippines, General Register No. L-7995, Decision, 31 May 1957.

9 Supreme Court of the Philippines, Conrado L. Tiu et al., v. Court of Appeals et al., General Register

No.127410, Decision, 20 January 1999.

10 Ichong v. Hernandez and Sarmiento.

11 A/HRC/42/30, annex II, paras. 79−86. See also A/HRC/39/41, paras. 61–62, and annex I, paras. 84–

85.

12 See https://www.officialgazette.gov.ph/downloads/2020/06jun/20200609-PH-Human-Rights-

Situationer.pdf.

13 Court of Appeals, Fourteenth Division, Manila, Karapatan, et al. v. H.E. Rodrigo Roa Duterte, Court

of Appeals General Register, Special Cases Section No. 00067, Decision, 28 June 2019.

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National Democratic Front, which put their life, liberty and security at risk, and the

petitioners filed for writs of amparo and data. The Court ruled that there was no substantial

evidence to establish the petitioners’ allegations.

50.

The Government submits that Karapatan presents an emblematic case for the merits

of enhancing due diligence among entities of the United Nations when assessing allegations

from sources and expecting civil society to observe reasonable standards of accountability

for the claims they present before United Nations human rights mechanisms.

51.

The Government submits that contrary to allegations of shrinking civic space,

Philippine civic space has been expanding with the Government’s steadfast advocacy for the

empowerment and greater participation of a multiplicity of civil society actors, especially the

less-resourced grassroots community-based organizations, rights holders and human rights

defenders, to include indigenous peoples, rebel returnees, parents of children recruited into

armed combat, rescued child combatants, and the victims of Communist Party of the

Philippines-New People’s Army-National Democratic Front atrocities and their families.

52.

In its note to the Secretary-General dated June 2019, the Government of the

Philippines stated that Karapatan was one of the non-governmental organizations that were

unlawfully operating in the country, with data from the Securities and Exchange Commission

of the Philippines showing that as at 15 April 2019 its corporate existence and registration

had been ordered revoked more than 10 years prior to that date, on 25 October 2005, for non-

filing of reports.

53.

The Government also stated that across different political administrations, including

the current one, Karapatan had a long track record of peddling questionable facts and bloated

figures concerning cases of deaths and human rights violations in the Philippines.

54.

The Government referred to a case in 2006 in which Karapatan called international

attention to and raised concerns about an alleged total of 724 extrajudicial killings from the

period 2001 to 2006 during the administration of former President Gloria M. Arroyo, where

official sources indicated a figure of only 111. An independent domestic body, the Melo

Commission, was created to investigate the allegations, verify the cases and establish the

facts. The Government submits that Karapatan failed to substantiate its figures and present

evidence for its claims before that body, which was duly constituted to take action on such

alarming claims. The Melo Commission Report of 22 January 2007 deplored the refusal of

Karapatan and its allied groups to come forward and cooperate.

55.

The Government further submits it has no policy of red-tagging. It has repeatedly

drawn attention to the pattern, by certain sources, of allegations of reprisals, especially before

the United Nations, and highlighted the need to take into account the country’s political

context relating to the activities of the Communist Party of the Philippines-New People’s

Army-National Democratic Front in examining such allegations.

56.

The issue of red-tagging or “red-baiting” was the subject of extensive public hearings

conducted by the Committee on National Defense and Security, Peace, Unification and

Reconciliation of the Senate of the Philippines on 3 and 24 November and 1 December 2020.

The hearings were based on Senate resolution No. 559, dated 28 October 2020, directing an

inquiry into the alleged red-tagging or red-baiting of certain celebrities, personalities,

institutions and organizations by military officials.

57.

The Senate inquiry provided an opportunity for all sides, including the security sector,

incumbent and former members of the Makabayan bloc of the House of Representatives, and

civil society actors, such as former rebels, to present their information, evidence and accounts

and to be heard objectively by the public. The hearings resulted in the adoption, on 10 March

2021, of the 77-page report No. 186 of the Committee on National Defense and Security,

Peace, Unification and Reconciliation, in which the Committee comprehensively examined

the issue of red-tagging and made recommendations to address it. 14 In the report, the

Committee determined that, for the supposed aggrieved parties seeking to avail themselves

of remedies to wrongful claims of being associated with the Communist Party of the

Philippines-New People’s Army-National Democratic Front, sufficient legal remedies were

14 See https://legacy.senate.gov.ph/lisdata/3455831378!.pdf.

A/HRC/WGAD/2022/14

9

already in place. In addition, the Government highlighted judicial remedies to persons whose

constitutional rights, particularly the right to liberty, had been violated by State agents. The

Government refers to instances in which parties have availed themselves of those remedies.15

Further submissions from the source

58.

On 30 September 2021, the Government’s response was transmitted to the source for

its further comments. In its reply dated 16 October 2021, the source submits that in June

2021, Regional Trial Court, Branch 7 in Bayugan City, Agusan del Sur quashed the criminal

information against Ms. Naul in three16 out of the four criminal cases filed against her. The

decision stated that the warrant issued for her arrest suffered constitutional defects, not to

mention that the same facts and circumstances had led the Court to reasonably believe that

the accused had not committed the offence alleged in the three cases. The fourth case –

criminal case No. 6527 for kidnapping and serious illegal detention,17 wherein Ms. Naul is

one of the accused – is still pending resolution before the same Regional Trial Court, Branch

7, in Bayugan City.

59.

Criminal case No. 6527 was filed against Ms. Naul and 544 other individuals on the

basis of a separate complaint; however, it contains allegations that are intertwined with those

in criminal cases No. 6524, No. 6525 and No. 6526. Case No. 6527 was filed at about the

same time as cases No. 6524, No. 6525 and No. 6526 and was also assigned by raffle to

Regional Trial Court, Branch 7. The source submits that Ms. Naul, through her lawyers in

the Union of Peoples’ Lawyers in Mindanao, moved to quash the complaint in both the Office

of the Provincial Prosecutor in Agusan del Sur and in Regional Trial Court, Branch 7, even

though Ms. Naul was not officially furnished copies of the complaint and other supporting

evidence, as required by the Rules on Criminal Procedure.

60.

In resolving the motion in May 2020, Regional Trial Court, Branch 7, remanded case

No. 6527 to the Office of the Provincial Prosecutor for reinvestigation.18 On 16 July 2020,

Ms. Naul, by counsel, submitted her counter-affidavit and supporting documents to the Office

of the Prosecutor, and on the same date, furnished a copy to the Court to refute the charges

against her. To date, no result of the reinvestigation from the Office of the Prosecutor has

been made available.

61.

In July 2020, Ms. Naul, by counsel, filed with Regional Trial Court, Branch 7, a

motion to dismiss the case on grounds of violation of the right to due process and right to

speedy disposition of cases.19 The motion has not yet been resolved. According to the source,

she remains detained at the provincial detention and rehabilitation centre in the Municipality

of Prosperidad, Agusan del Sur.

62.

In respect of Ms. Naul’s detention, allegedly based on red-tagging and imposed as a

consequence of her work as a human rights defender, the source recalls the reports of the

Secretary-General on reprisals.20 The United Nations High Commissioner for Human Rights

noted that multiple United Nations actors had addressed concerns about red-tagging, or

labelling as communists or terrorists, as a tactic used by State and non-State actors to vilify,

including in forums of the United Nations, individuals and groups who cooperated with

entities of the United Nations system. 21 Special procedure mandate holders and the

spokesperson for the High Commissioner have expressed serious concerns about the red-

tagging of civil society and human rights defenders, including members of the Commission

on Human Rights of the Philippines.

15 Ibid.

16 Criminal cases No. 6524, No. 6525 and No. 6526 (for details, see para. 7 above).

17 In criminal case No. 6527, according to information filed with Regional Trial Court, Branch 7, it is

alleged that on 19 December 2018, in the Municipality of Sibagat, Agusan del Sur, Ms. Naul and her

544 co-accused, “being armed with high-powered firearms” and “by means of force and

intimidation”, kidnapped and detained Bernabe Baiwasan Salahay, thus depriving him of his liberty.

18 Regional Trial Court, Branch 7, order dated 21 May 2020.

19 Dated 28 July 2020 and sent to Regional Trial Court, Branch 7, via registered mail on 4 August 2020.

20 See A/HRC/42/30, A/HRC/44/22 and A/HRC/45/36.

21 A/HRC/45/36, annex I, para. 98.

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10

63.

The Commission on Human Rights of the Philippines has also denounced the practice

as a counter-insurgency policy of the State that targets critics, journalists and union workers,

including members of the National Union of Peoples’ Lawyers, the Union of Peoples’

Lawyers in Mindanao22 and Karapatan.23

64.

In its human rights bulletin issued on 11 June 2019, the Commission on Human Rights

in Northern Mindanao declared that the practice of red-tagging or red-baiting was a serious

human rights concern.

65.

Insofar as Ms. Naul is concerned, on 28 December 2020, the Commission on Human

Rights in Northern Mindanao adopted resolution No. CHR-XIII-2020-014713 on the red-

tagging of Ms. Naul in violation of the right to protection of honour and reputation. In the

resolution, the Commission found that the pleadings filed in court simply enumerated the

names of all the accused, Ms. Naul being one of them, without any substantial evidence that

the accused were responsible in the attack. There is something untoward in identifying those

500 individuals and generalizing them all as members of the New People’s Army absent

proof of their participation during the attack. This is a case of red-tagging.

66.

The source submits, citing several procedural irregularities in the conduct of her case,

that Ms. Naul has allegedly been denied her fundamental right to a fair trial.

67.

The mere imputation of a non-bailable offence to a person without probable cause and

without opportunity to be heard is already a violation of the right to due process enshrined in

the 1987 Constitution, which states that no person shall be deprived of life, liberty, or

property without due process of law, nor shall any person be denied the equal protection of

the laws (article III (1)).

68.

In its resolution remanding criminal case No. 6527 to the Office of the Prosecutor,

Regional Trial Court, Branch 7, noted that Ms. Naul did not receive the subpoena with the

attached affidavits of the complainant and those of his witnesses, which would have required

her to submit counter-evidence during the preliminary investigation. The non-receipt of the

subpoena translated into the absence of an opportunity on the part of Ms. Naul to rebut the

accusation against her. In the same resolution, the Court stated that the opportunity to be

heard meant that the accused would have the chance to present evidence and arguments

before the prosecution that resolved and/or determined whether probable cause existed to

engender a well-founded belief that the accused were probably guilty of the offence charged.

An opportunity to be heard is indispensable and essential to the administration of due process

of law, knowing that it is one of the hallmarks of the due process clause under the

Constitution.

69.

Finding that Ms. Naul was not afforded her right to due process, the Court remanded

the case to the Office of the Provincial Prosecutor for reinvestigation. As noted above, there

has as yet been no result of the reinvestigation from the Office.

70.

In regard to Ms. Naul’s right to a fair and speedy trial,24 the source submits that in

criminal case No. 6527, the lapse of more than one year without so much as any comment or

resolution of any tenor on the part of the Provincial Prosecutor, despite the presence of the

records at his disposal, and in utter disregard of the prescriptive periods allowed under

pertinent rules,25 and the lapse of more than two years from the time when the case was first

lodged before the Court, amount to an inordinate delay of the proceedings, which thus

constitutes a violation of Ms. Naul’s constitutional right to a speedy disposition of the case.

71.

The source submits that, considering the numerous pleadings filed before the Court

and the Office of the Provincial Prosecutor for the dismissal of the charges against Ms. Naul

on constitutional grounds, her case could have been dismissed earlier. Ms. Naul could have

22 See https://chr.gov.ph/statement-of-chr-spokesperson-atty-jacqueline-ann-de-guia-on-the-harassment-

of-some-members-of-the-uplm-and-nupl/.

23 See https://www.hrw.org/news/2020/08/25/philippine-rights-group-under-attack.

24 Article III (16), of the 1987 Constitution states that all persons shall have the right to a speedy

disposition of their cases before all judicial, quasi-judicial or administrative bodies.

25 National Prosecution Service, Revised Manual for Prosecutors (Manila, Department of Justice of the

Philippines, 2008).

A/HRC/WGAD/2022/14

11

been released earlier, making space in the highly congested detention facility in Agusan del

Sur and thereby contributing to the efforts to prevent the spread of COVID-19 in detention

centres.

72.

On 8 March 2022, the source informed the Working Group that Ms. Naul had been

released on 28 October 2021. The court reportedly held that the affidavits of the complainants

were inadequate and that the facts and circumstances led it to believe that the accused had

not committed the offences charged.

Discussion

73.

The Working Group thanks the source and the Government of the Philippines for their

submissions.

74.

The Government of the Philippines states that based on the response received on 16

August 2021 from government authorities, the trial court has quashed the criminal

information against Ms. Naul due to the Court’s failure to establish her participation in the

crimes she allegedly committed. As Ms. Naul has already been released from detention, the

Government submits that the request and arguments of the Working Group are rendered

moot. On that matter, on 8 March 2022, the source reported that Ms. Naul was released on

28 October 2021, pursuant to a court decision on cases No. 6524, No. 6525 and No. 6526, as

the facts and circumstances led the Court to believe that the accused had not committed the

offences charged. A fourth court case against her is still pending, indicating that Ms. Naul

could be subject to further arrest and detention.

75.

As a preliminary matter, the Working Group observes that the release of Ms. Naul

does not prevent the Working Group from adopting an opinion, as there is no provision in its

methods of work that precludes consideration of a case in such circumstances. Indeed, the

Working Group considers it necessary to render an opinion given that the allegations relating

to Ms. Naul’s deprivation of liberty in the Philippines are serious and warrant further

attention,26 and that the case concerns the peaceful exercise of fundamental rights in the

Philippines.

76.

In determining whether the deprivation of liberty of Ms. Naul is arbitrary, the Working

Group has regard to the principles established in its jurisprudence to deal with evidentiary

issues. If the source has presented a prima facie case for breach of the international law

constituting arbitrary detention, the burden of proof should be understood to rest upon the

Government if it wishes to refute the allegations. Mere assertions by the Government that

lawful procedures have been followed are not sufficient to rebut the source’s allegations.27

Category I

77.

The Working Group will first determine whether it is impossible to invoke any legal

basis to justify Ms. Naul’s arrest and detention from 15 March 2020 until the time of her

release that would render her detention arbitrary under category I.

78.

As at the date of the source’s submission of 7 July 2021, Ms. Naul had not been

brought before a judge. The Government does not rebut that submission. The Working Group

recalls that legal safeguards against arbitrary deprivation of liberty as encapsulated in article

9 of the Universal Declaration of Human Rights and article 8 of the Covenant require anyone

arrested or detained on a criminal charge to be brought promptly before a judge authorized

by law to exercise judicial power. As the Working Group has reiterated in its jurisprudence,

and the Human Rights Committee has specified, 48 hours is ordinarily sufficient to satisfy

the requirement of bringing a detainee “promptly” before a judge or other officer authorized

by law following his or her arrest; any longer delay must remain absolutely exceptional and

be justified under the circumstances.28 Accordingly, the Working Group finds that Ms. Naul’s

pretrial detention was undertaken in the absence of judicial review of its legality and in

26 See opinions No. 50/2017, para. 53 (c); and No. 55/2018, para. 59.

27 A/HRC/19/57, para. 68.

28 See, for example, opinions No. 6/2017, No. 30/2017, No. 49/2019 and No. 66/2020. See also Human

Rights Committee, general comment No. 35 (2014), para. 33.

A/HRC/WGAD/2022/14

12

violation of her right to be brought promptly before a judicial authority under article 9 (3) of

the Covenant.29

79.

The source submits that the charges upon which Ms. Naul was arrested have no fixed

bail. The Working Group understands this to mean Ms. Naul was arrested and charged on the

basis of non-bailable offences. The Government confirms that Ms. Naul was charged under

non-bailable offences and refers to relevant domestic laws in that regard.

80.

The Working Group recalls that it has repeatedly stated in its jurisprudence that, even

when the detention of a person is carried out in conformity with national legislation, the

Working Group must ensure that the detention is also consistent with the relevant provisions

of international law.30 The Working Group, which has previously noted that Philippine law

– should it be determined that the charges involve a non-bailable offence – precludes

consideration, or reconsideration on a periodic basis, of a detainee’s individual

circumstances, reiterates its view that automatic rejection of the applicant’s applications for

bail, devoid of any judicial control of the particular circumstances of the person’s detention,

is incompatible with the guarantees of article 9 (3) of the Covenant.31

81.

In accordance with article 9 (3) of the Covenant, pretrial detention should be the

exception, rather than the norm, and should be ordered for the shortest period of time

possible. Liberty is recognized under article 9 (3) of the Covenant as the core consideration,

with detention as an exception thereto. Ms. Naul’s detention – bearing in mind that pretrial

detention should be the exception rather than the rule – lacked a legal basis, as it was not

based on an individualized determination that it was reasonable and necessary, taking into

account all the circumstances, for such purposes specified in law as to prevent flight,

interference with evidence or the recurrence of crime, accompanied by consideration of

alternatives, such as bail, electronic bracelets or other conditions.32 Moreover, international

standards require that non-custodial measures be prioritized for women.33

82.

The Human Rights Committee has found that the State party must demonstrate that

there were no less invasive means available of achieving the same ends of detention – that is,

mitigating the risk of flight, interference with evidence or reoffending – that might arise from

release on bail, for example, by the imposition of reporting obligations, sureties or other

conditions.34

83.

In the light of the above, the Working Group finds that non-bailable offences, which

include automatic pretrial detention regimes for certain offences, are inconsistent with the

need for individualized assessment, as they preclude consideration of the detainee’s

individual circumstances.35 The Working Group thus concludes that Ms. Naul’s pretrial

detention was in violation of article 9 of the Universal Declaration of Human Rights and

article 9 (1) and (3) of the Covenant.

84.

Moreover, the source submits that on 10 June 2021, the arrest warrant for Ms. Naul

was quashed for being null and void by a court. However, the Working Group notes with

concern that according to the update provided by the source, Ms. Naul was released from

detention only on 28 October 2021, more than four months after that determination by the

court. The Working Group is unable to reconcile why Ms. Naul continued to be detained after

29 Opinion No. 81/2020, para. 56.

30 See, for example, opinions No. 46/2011, No. 42/2012, No. 50/2017, No. 79/2017, No. 1/2018, No.

20/2018, No. 37/2018 and No. 50/2018.

31 Opinions No. 24/2015, paras. 35−39; and No. 61/2018, paras. 47−48.

32 A/HRC/19/57, paras. 48–58.

33 Rules 57−66 of the United Nations Rules for the Treatment of Women Prisoners and Non-custodial

Measures for Women Offenders (the Bangkok Rules). See also deliberation No. 12 (A/HRC/48/55,

annex), paras. 7–9.

34 Baban v. Australia (CCPR/C/78/D/1014/2001), para. 7.2. See also general comment No. 35 (2014),

para. 38, in which the Human Rights Committee stated that courts must examine whether alternatives

to pretrial detention, such as bail, electronic bracelets or other conditions, would render detention

unnecessary in the particular case.

35 Opinion 61/2018, paras. 47−48.

A/HRC/WGAD/2022/14

13

the legal basis for her detention as submitted by the authorities, that is, the arrest warrant,

was quashed.

85.

Given the discrepancy between the time of the release of Ms. Naul provided by the

Government and that provided by the source, and the lack of clarity as to when the charges

against her were quashed, the Working Group does not have sufficient information to make

a finding on the matter. However, it takes the opportunity to reiterate that maintaining a

person in detention after release has been ordered by a court competent to exercise control

over the legality of detention is a manifest violation of article 9 of the Universal Declaration

of Human Rights and article 9 of the Covenant and renders the detention arbitrary, because

it lacks legal basis.36

86.

For the reasons outlined above, the Working Group concludes that Ms. Naul’s pretrial

detention lacks a legal basis and falls under category I.

Category II

87.

The source submits that Ms. Naul was deprived of her liberty for exercising her right

to freedom of opinion, expression and association. As the source does not substantiate the

allegations as to how Ms. Naul was deprived of her liberty for exercising her right to freedom

of opinion and expression, the Working Group is unable to address any violations relating to

those freedoms.

88.

In relation to her right to freedom of association, the source submits that Ms. Naul’s

arrest and detention based on her status as a member of the national council of Karapatan

constitutes an unlawful restriction of freedom of association. The Government, while

providing substantial information on its engagement with Karapatan, does not rebut this

allegation directly.

89.

According to the Declaration on the Right and Responsibility of Individuals, Groups

and Organs of Society to Promote and Protect Universally Recognized Human Rights and

Fundamental Freedoms (Declaration on Human Rights Defenders), everyone has the right,

individually and in association with others, to promote and to strive for the protection and

realization of human rights, and to draw public attention to the observance of human rights.

As the Working Group has observed, belonging to a human rights organization is simply the

legitimate exercise of, among other rights, the right to association.37 Accordingly, it has found

arbitrary detention, based on the exercise of freedom of association based on membership in

a range of human rights organizations.38 Under article 22 (2) of the Covenant, no restrictions

may be placed on freedom of association other than those which are prescribed by law and

which are necessary in a democratic society in the interests, of national security or public

safety, public order, public health or morals, or the protection of the rights and freedoms of

others. There is no indication that those restrictions apply in Ms. Naul’s case.

90.

The Human Rights Council has specifically called for States to fully respect and

protect the rights of all individuals to associate freely, especially for persons espousing

minority or dissenting views and human rights defenders. 39 In addition, in its general

comment No. 25 (1996), the Human Rights Committee noted that the right to freedom of

association, including the right to form and join organizations and associations concerned

with political and public affairs, was an essential adjunct to the rights protected by article 25

of the Covenant, which sets out the right to participate in public affairs.

91.

For the above-mentioned reasons, the Working Group finds that Ms. Naul’s rights to

freedom of association under article 20 of the Universal Declaration of Human Rights and

article 22 of the Covenant as well as her rights under article 7 of the Universal Declaration

36 Opinions No. 3/2010, para. 6; No. 3/2011, para. 20; No. 7/2011, paras. 15–17; No. 9/2011, para. 38;

and No. 8/2020, para. 53.

37 Opinion No. 10/1993, para. 5 (h).

38 See, for example, decisions No. 26/1992, para. 6 (h); and No. 10/1993, para. 5 (h); and opinion No.

15/2010, para. 26.

39 Human Rights Council resolution 15/21.

A/HRC/WGAD/2022/14

14

of Human Rights and article 26 of the Covenant have been violated. The Working Group

thus considers that Ms. Naul’s deprivation of liberty is arbitrary under category II.

Category III

92.

The source reported various instances of violations of Ms. Naul’s fundamental fair

trial rights. The Government responded that those allegations should be addressed to the trial

court having jurisdiction over her case, as they involved assertions that raised questions of

fact which were practically addressed to the sound discretion of the court. The Working

Group does not consider that response to be sufficient, in view of the allegations raised by

the source.

93.

The source notes the following fair trial violations:

(a)

Ms. Naul was not officially provided copies of the complaint against her as

required by domestic law but was made aware only informally;

(b)

Ms. Naul and the 22 other individuals indicted were not named in the original

complaint but were nonetheless subpoenaed by the prosecutor and included in the

supplemental complaint filed by the alleged victim of kidnapping;

(c)

Moreover, Ms. Naul was not provided with the supplemental complaint, which

again violated domestic law.

94.

The source also submits that the above-mentioned complaints failed to establish the

positive identities of Ms. Naul and the 22 others indicted in the same case as perpetrators of

the crimes committed on 19 December 2018 against the Philippine Army. Ms. Naul’s hospital

records, which were submitted as proof of her alibi, were rejected by the prosecution.

According to the source, that evidence would have proved that she was in another part of the

country on the day the crimes occurred. On that basis, the source submits that the charges

against Ms. Naul are fabricated. The Government has not addressed the issue of alibi directly.

95.

In the light of the foregoing, the Working Group find that the violations set out above

breach Ms. Naul’s due process and fair trial rights under article 10 of the Universal

Declaration of Human Rights and article 14 of the Covenant.

96.

The Working Group concludes that the violations of Ms. Naul’s rights to a fair trial

are of such gravity as to render her deprivation of liberty arbitrary, falling within category

III. The Working Group refers the present case to the Special Rapporteur on the independence

of judges and lawyers.

Category V

97.

The source submits that Ms. Naul has been deprived of her liberty as a result of

politically motivated charges brought against her that are in retaliation for her human rights

work and that she is being discriminated against based on her status as a human rights

defender. The source states that Ms. Naul is among numerous human rights defenders who

have been identified by the Government as part of a practice of red-tagging.

98.

The Government denies the allegation that Ms. Naul’s arrest and detention formed

part of a broader attack on independent civil society and human rights defenders in the

Philippines, or red-tagging, and on Karapatan in particular. Additionally, it submits that

contrary to allegations of shrinking civic space, Philippine civic space has been expanding

with the Government’s steadfast advocacy for the empowerment and greater participation of

a multiplicity of civil society actors.

99.

The Working Group reiterates that it applies a heightened standard of review in cases

in which the rights to freedom of movement and residence, freedom of asylum, freedom of

thought, conscience and religion, freedom of opinion and expression, peaceful assembly and

association, participation in political and public affairs, equality and non-discrimination, and

protection of persons belonging to ethnic, religious or linguistic minorities are restricted or

A/HRC/WGAD/2022/14

15

in which human rights defenders are involved.40 Ms. Naul’s role as a human rights defender

in the Philippines requires the Working Group to undertake this kind of intense and strict

scrutiny. Human rights defenders, in particular, have the right to study, discuss, form and

hold opinions on the observance, both in law and in practice, of all human rights and

fundamental freedoms and, through these and other appropriate means, to draw public

attention to those matters.41

100.

Moreover, as established above in respect of category II (see paras. 87−91), Ms.

Naul’s detention resulted from the peaceful exercise of her fundamental right to association

under international law. When detention has resulted from the active exercise of civil and

political rights, there is a strong presumption that the detention constitutes a violation of

international law on the grounds of discrimination based on political or other views.42 The

Working Group recalls the source’s submission that Ms. Naul’s work largely involved

providing aid to alleged political prisoners and victims of human rights violations, where she

organized calls for the release of alleged political detainees and persecuted members of

marginalized sectors.43

101.

In respect of human rights defenders, the Working Group has recognized the necessity

to subject interventions against individuals who may qualify as human rights defenders to

particularly intense review.44 This heightened standard of review by international bodies is

especially appropriate where there is a pattern of harassment by national authorities targeting

such individuals.45 In the case of Ms. Naul, who was 62 years old at the time of her arrest, it

is unclear as to why several units of the police and the army were reportedly involved in her

arrest. In that regard, the Working Group recalls that on 15 April 2020, special procedure

mandate holders addressed concerns to the Government about alleged killings of two

members of Karapatan, raids on offices, arbitrary detention and legal cases against Karapatan

secretariat members and staff from May 2019 to March 2020. The mandate holders described

a pattern of targeting multiple organizations and individuals, stating that it was believed that

all incidents were reprisals for the advocacy work conducted by Karapatan, the Rural

Missionaries of the Philippines and Gabriela National Alliance of Women at the national and

international levels, including for their work before the Human Rights Council. 46 The

Working Group notes with concern the chilling effects of judicial prosecutions on society,

which is furthered by a climate of intimidation that appears to surround the enforcement of

those laws.

102.

The Working Group thus considers that Ms. Naul’s deprivation of liberty constitutes

a violation of articles 2 and 7 of the Universal Declaration of Human Rights and articles 2, 3

and 26 of the Covenant on the grounds of discrimination based on political or other opinion,

as well as on her status as a human rights defender.

103.

For the reasons set out above, the Working Group finds that Ms. Naul’s deprivation

of her liberty was arbitrary according to category V.47 The Working Group refers the present

case to the Special Rapporteur on the situation of human rights defenders and the Special

Rapporteur on the rights to freedom of peaceful assembly and of association.

Concluding remarks

104.

The Working Group noted with concern the source’s submission that Ms. Naul, who

was 62 years of age at the time of her arrest, suffers from asthma and has a heart condition.

Considering Ms. Naul’s personal condition as well as the general risks posed by COVID-19

to detainees in detention facilities, the Working Group expresses regret that Ms. Naul was

40 See, for example, opinions No. 57/2017, para. 46; No. 94/2017, para. 49; No. 3/2018, para. 40; and

No. 13/2018, para. 22. See also Declaration on Human Rights Defenders, art. 9 (3).

41 See Declaration on Human Rights Defenders; and opinion No. 8/2009, para. 18.

42 Opinions No. 88/2017, para. 43; No. 13/2018, para. 34; and No. 59/2019, para. 79.

43 See communication PHL 1/2020, https://spcommreports.ohchr.org/Tmsearch/TMDocuments.

44 Opinion No. 62/2012, para. 39.

45 Opinion No. 39/2012, para. 43.

46 See communication PHL 1/2020, https://spcommreports.ohchr.org/Tmsearch/TMDocuments.

47 See opinions No. 75/2017, No. 79/2017, No. 35/2018, No. 36/2018, No. 45/2018, No. 46/2018, No.

9/2019, No. 44/2019 and No. 45/2019.

A/HRC/WGAD/2022/14

16

held in overcrowded and unsanitary conditions that put her life at imminent risk. In

accordance with article 10 (1) of the Covenant, all persons deprived of their liberty must be

treated with humanity and dignity, which would include receiving appropriate medical care.48

States should treat detainees over 60 years of age and those with underlying health conditions

as vulnerable to COVID-19, refraining from holding them in facilities where the risk to their

life is heightened and implementing early release schemes whenever possible.49 The Working

Group refers the present case to the Independent Expert on the enjoyment of all human rights

by older persons.

Disposition

105.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Teresita Naul, being in contravention of articles 2, 7, 9,

10 and 20 of the Universal Declaration of Human Rights and articles 2, 3, 9, 14, 22

and 26 of the International Covenant on Civil and Political Rights, is arbitrary and

falls within categories I, II, III and V.

106.

The Working Group urges the Government of the Philippines to ensure a full and

independent investigation of the circumstances surrounding the arbitrary deprivation of

liberty of Ms. Naul and to take appropriate measures against those responsible for the

violation of her rights.

107.

The Working Group requests the Government to bring its laws into conformity with

the recommendations made in the present opinion and with the commitments made by the

Philippines under international human rights law.

108.

In accordance with paragraph 33 (a) of its methods of work, the Working Group refers

the present case to the Special Rapporteur on the rights to freedom of peaceful assembly and

of association, the Special Rapporteur on the independence of judges and lawyers, the Special

Rapporteur on the situation of human rights defenders and the Independent Expert on the

enjoyment of all human rights by older persons, for appropriate action.

109.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

110.

In accordance with paragraph 20 of its methods of work, the Working Group requests

the source and the Government to provide it with information on action taken in follow-up

to the recommendations made in the present opinion, including:

(a)

Whether compensation or other reparations have been made to Ms. Naul;

(b)

Whether an investigation has been conducted into the violation of Ms. Naul’s

rights and, if so, the outcome of the investigation;

(c)

Whether any legislative amendments or changes in practice have been made to

harmonize the laws and practices of the Philippines with its international obligations in line

with the present opinion;

(d)

Whether any other action has been taken to implement the present opinion.

111.

The Government is invited to inform the Working Group of any difficulties it may

have encountered in implementing the recommendations made in the present opinion and

whether further technical assistance is required, for example through a visit by the Working

Group.

112.

The Working Group requests the source and the Government to provide the above-

mentioned information within six months of the date of transmission of the present opinion.

However, the Working Group reserves the right to take its own action in follow-up to the

opinion if new concerns in relation to the case are brought to its attention. Such action would

48 Opinion No. 26/2017, para. 66.

49 Deliberation No. 11 (A/HRC/45/16, annex II), paras. 15−16.

A/HRC/WGAD/2022/14

17

enable the Working Group to inform the Human Rights Council of progress made in

implementing its recommendations, as well as any failure to take action.

113.

The Working Group recalls that the Human Rights Council has encouraged all States

to cooperate with the Working Group and has requested them to take account of its views

and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily

deprived of their liberty, and to inform the Working Group of the steps they have taken.50

[Adopted on 1 April 2022]

50 See Human Rights Council resolution 42/22, paras. 3 and 7.