Draft copy of the Veloso petition to the ICJ


I gave this to Vice President Jejomar Binay so that the VP can get the concurrence of President Benigno Aquino. To date, there is no news if the VP has obtained PNoy’s concurrence.

INTERNATIONAL COURT OF JUSTICE

APPLICATION

INSTITUTING PROCEEDINGS

filed in the Registry of the Court on 28 April 2015

VELOSO CASE

(Republic of the Philippines v. Republic of Indonesia)

____________________________________

  1. THE AMBASSADOR OF THE REPUBLIC OF THE PHILIPPINES TO THE NETHERLANDS, FOR THE PRESIDENT OF THE INTERNATIONAL COURT OF JUSTICE

The Hague, 28 April 2015

Following instructions of my Government, I am most pleased to submit to the esteemed Court an Application as well as an Urgent Request for Provisional Measures of the Republic of the Philippines pursuant to Articles 40 and 41 of the Statute of the Court and Articles 73, 74 and 75 of the Rules of Court against the Republic of Indonesia for violations of the Vienna Convention on Consular Relations and the Convention on the Elimination of All Forms of Discrimination against Women.

The request for provisional measures is extremely urgent, as the execution of 30-year old Philippine national Ms. Mary Jane Fiesta Veloso, mother of two children, set to take place today on or around 1800 hours (Manila time) at Nusakambangan – known as Indonesia’s execution island – would deprive both this Court and the Republic of the Philippines of the opportunity to have the case decided on its merits.

(Sgd.) JAIME VICTOR B. LEDDA

Ambassador Extraordinary and Plenipontentiary

Republic of the Philippines

For: Mr. Philippe Couvreur

Registrar

International Court of Justice

Peace Palace, The Hague

The Netherlands

Sir:

On behalf of the Republic of the Philippines and pursuant to Article 40 (1) of the Statute of the International Court of Justice, and Article 38 of the Rules of Court of the ICJ, may I respectfully submit this Application instituting proceedings in the name of the Government of the Republic of the Philippines against the Government of the Republic of Indonesia for violations of the Vienna Convention on Consular Relations of 1963 (hereinafter the “Vienna Convention”) as well as of the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”).

  1. Preliminary Statement
  1. A national of the Republic of the Philippines was arrested, detained, tried and sentenced to die by musketry following criminal proceedings in the Republic of Indonesia involving alleged drug trafficking. The sentencing of the Philippine national was conducted in violation of Article 36 (1) (b) of the Vienna Convention, when the Indonesian authorities failed to notify the Philippine government of the arrest and detention of the latter’s national.
  1. Moreover, the death convict, Ms. Mary Jane Fiesta Veloso, a 30-year old Filipina mother of two children, was by any account, a victim of human trafficking; this however, was not taken into consideration by the courts of the Republic of Indonesia, despite its obligations under Article 6 of the CEDAW to ensure that victims of human trafficking, are not doubly victimized by being made to suffer as offenders when in truth and in fact, because of their vulnerable condition, they were merely tricked by others into committing the offense through false pretenses or false promises of economic gain.
  1. The Republic of Indonesia’s violation of the Vienna Convention prevented the Republic of the Philippines from exercising its rights and from accordingly performing its consular functions and duties to its distressed national pursuant to the Vienna Convention. The Republic of the Philippines suffered injuries both from that of its national, and on its own capacity.
  1. Moreover, the failure of the Republic of Indonesia to abide by its obligations under Article 6 of the CEDAW has deprived a national of the Republic of the Philippines of entitlements and protections under the same Convention.
  1. The Philippine national on death row is scheduled for execution just around midnight today at The Hague– a fact which makes this Application and Request for Provisional Measures all the more urgent. The Republic of the Philippines has requested for clemency, following repeated diplomatic representations by it and others – including the UN Secretary General Ban-Ki Moon –with the Indonesian government.
  1. In addition, just a few days ago – at the intervention of Philippine authorities and civil society groups – a second appeal was filed on behalf of Ms. Veloso, this time indicating mitigating circumstances, including her being a victim of human trafficking. Notwithstanding these efforts, authorities of the Republic of Indonesia have consistently refused to provide her remedy or relief.
  1. The Philippine government’s diplomatic protests deal for the most part with cases in which its nationals face capital punishment. This is due, in part, to Philippine’s strong interest in protecting the lives of its nationals and its belief that those countries that apply the death penalty must rigorously adhere to due process. In addition, as noted above, it is the Philippine’s experience that the involvement of consular officers can make the difference between life and death for a Filipino national facing capital offense charges.
  1. The Republic of the Philippines respectfully requests that the Court order provisionally, an injunction against the execution of Philippine national Ms. Mary Jane Fiesta Veloso, while this case is being heard by the Court.
  1. The Republic of the Philippines also respectfully requests that the Court order restitutio in integrum, or a “re-establishment of the situation which would, in all probability, have existed if the violations had not been committed” (Factory at Chorzów (Claim for Indemnity), Merits, Judgment of 13 September 1928, P.C.I.J., Series A, No. 17, p. 47).
  • Further, the Republic of the Philippines requests that the Court order prospective relief necessary and sufficient to ensure that the pattern and practice of violations of Article 36 of the Vienna Convention by the Republic of Indonesia ceases.
  1. Jurisdiction of the Court
  1. Under Article 36, paragraph 1, of the Statute of the Court provides that, “[t]he jurisdiction of the Court comprises . . . all matters specially provided for . . . in treaties and conventions in force”.
  • As Members of the United Nations, the Republic of the Philippines and the Republic of Indonesia are parties to the Statute. They are also parties to the Vienna Convention. The Republic of the Philippines is also a party to the Optional Protocol concerning the Compulsory Settlement of Disputes. Article I of the Optional Protocol provides: “Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol.”
  • Moreover, both the Republic of the Philippines and the Republic of Indonesia are parties to the CEDAW. In this connection, the Republic of Indonesia itself has made a declaration in respect of the provisions of the CEDAW that it “does not consider itself bound by the provisions of article 29, paragraph 1 of this Convention and takes the position that any dispute relating to the interpretation or application of the Convention may only be submitted to arbitration or to the International Court of Justice with the agreement of all the parties to the dispute.”
  • Upon the filing of the present application, the matters in dispute between the Republic of the Philippines and the Republic of Indonesia concerning the Vienna Convention and the CEDAW therefore lie within the compulsory jurisdiction of the Court.
  • Facts of the Case
  • Veloso was born to a poor family in Nueva Ecija, a province some 200 kilometers northeast of Manila. The youngest of five children, she barely had an education, making it only to first year high school. She married at the age of 17 and had two children by her husband. Her marriage however did not last long.
  • Wanting to help her family rise from abject poverty, she decided to work abroad as a domestic helper on a promise of assistance by an acquaintance, a certain Ma. Kristina Sergio. Ms. Sergio’s partner, Mr. Julius Lacanilao, is said to be friend to Ms. Veloso’s family.
  1. In April 2010, Ms. Sergio and Mr. Juliano promised Ms. Veloso a job as a domestic helper in Malaysia in exchange for her payment of a tricycle, a mobile phone and 7,000 Philippine pesos.
  • That same month, Ms. Sergio and Ms. Veloso flew to Kuala Lumpur. There, they met a certain Ike, an African of a yet unidentified nationality and an acquaintance of Ms. Sergio’s partner.
  1. Sergio and Ike asked Ms. Veloso to make a side trip to Indonesia to meet with someone, with a promise that she will get her job as a domestic helper upon her return to Kuala Lumpur.
  1. On 24 April 2010, she and Ms. Sergio met with Ike, who handed Ms. Veloso a traveling bag. When Ms. Veloso remarked that the bag, though empty, appeared to be heavy, Ms. Sergio told her it was merely because the bag was new.
  • Sergio also gave her 500 US dollars and a number to call upon arriving in Indonesia.
  1. On 25 April 2015, Ms. Veloso flew to Yogyakarta’s Adisucipto airport. At a security check at the airport, she was arrested by Indonesian airport police after 2.6 kilograms of heroin were found in her luggage. At the time of her arrest, Ms. Veloso was 25 years old.
  1. During initial interrogation by the police, Ms. Veloso was identified to be a Filipino citizen. Despite this clear indication of foreign nationality, competent authorities failed to inform her of her rights to consular assistance under Article 36, subparagraph 1 (b), of the Vienna Convention. Not having been apprised of these rights, Ms. Veloso could not and did not exercise them before his trial and sentencing.
  1. During the trial from April 25, 2010 to October 2010, Ms. Veloso was denied her right to due process and a fair trial.
  1. First, during her interrogation conducted by Indonesian police in Bahasa Indonesia, a language she neither spoke nor understood at that time, she was not afforded a lawyer or a translator. She was left to her own devices to understand and answer the questions propounded to her by Indonesian police investigators.
  1. Second, at trial, the court-provided interpreter – only a student at a foreign language school in Yogyakarta who was not licensed by the Association of Indonesian Translators – translated the proceedings from Bahasa Indonesia to English, a language with which Ms. Veloso was not conversant.
  1. Third, because of the failure of Indonesian authorities to inform Philippine consular authorities of her situation, Ms. Veloso did not have access to a Philippine-nominated lawyer who could give her proper legal advice in regard to her case. All that she had to defend her was a public defender provided by the police, who failed to raise any Convention-based arguments in direct appeal and state post-judgment proceedings on her behalf.
  1. On October 2010, after only six months of trial, Ms. Veloso was convicted and sentenced to die by firing squad. Ms. Veloso’s appeals of the conviction and sentence were denied.
  1. Having been uninformed until that time of Ms. Veloso’s situation, the Republic of the Philippines was unable to exercise its right to provide consular assistance to her at the trial and direct appeal levels. However, upon belatedly learning of his situation, Filipino consular authorities began rendering assistance, legal and otherwise, to Ms. Veloso.
  1. Efforts of the Republic of the Philippines to Prevent the Carrying Out of the Death     Sentence on Ms. Veloso

 

  1. Thus in August 2011, Philippine President Benigno S. Aquino III submitted an appeal for clemency on behalf of Ms. Veloso to then Indonesian President Susilo Bambang Yudhoyono. At the time however, as Indonesia had a moratorium on executions, the clemency request was not acted upon.
  • In October 2014, a new Indonesian president, Jokowi Widodo, was sworn into office. President Widodo however, was not inclined to grant requests for clemency for drug traffickers on death row, noting the serious illegal drug situation in Indonesia.
  1. In January 2015, President Widodo rejected a new round of clemency appeals including that made for Ms. Veloso.
  1. Last Friday, 24 April 2015, a second appeal was filed with the Sieman District Court in the Republic of Indonesia, arguing that Ms. Veloso was a victim of human trafficking who should not have been prosecuted for a crime she knew nothing about.
  1. The second appeal pointed to evidence recently provided by the Philippine Drug Enforcement Agency that Ms. Veloso had fallen victim to an international criminal drug syndicate, unwittingly becoming a “drug mule”.
  1. Yesterday, 27 April 2015, the Sieman District Court rejected the second appeal.
  1. Also yesterday morning, President Aquino met for a few minutes with President Widodo on the sidelines of the 26th Association of Southeast Asian Nations in Kuala Lumpur to discuss Ms. Veloso’s case. Media reports said the Indonesian President promised his Philippine counterpart that he will look again into Ms. Veloso’s case.
  1. However, time is running out on Ms. Veloso, with little or no hope that President Widodo will grant her clemency.
  1. The Republic of the Philippines does not seek to bar the Republic of Indonesia from enforcing its criminal law. However, it contends that the competent authorities of the Republic of Indonesia must enforce its criminal law by means that comport with the obligations it has undertaken to fulfill in the Vienna Convention and in the CEDAW.
  1. Convention Violations by Indonesia
  1. The Vienna Convention requires authorities of the receiving State to inform any foreign national of the sending State “in prison, custody or detention” (Vienna Convention, Art. 36 (1) (c)), “without delay of his rights” to contact his consulate (ibid., Art. 36 (1) (b)). Then, if the detained foreign national so requests, the Vienna Convention requires the competent authorities of the receiving State to inform the national’s consulate without delay (ibid.). By arresting, detaining, trying, convicting, and sentencing Ms. Veloso without advising her of her Article 36 rights, Indonesia has violated its obligations under the Vienna Convention.
  1. The Vienna Convention mandates that the laws of each State party enable “full effect to be given to the purposes for which” the rights set forth in Article 36 of the Vienna Convention “are intended” (Vienna Convention, Art. 36 (2)). By failing to “enable full effect to be given” to the Philippine’s rights and those of its nationals under Article 36 of the Vienna Convention and by refusing to provide a meaningful mechanism for review and reconsideration as well as a meaningful remedy at law of the convictions and sentences imposed on Filipino nationals in proceedings that failed to respect those rights, Indonesia has violated, and continues to violate, its obligations under the Vienna Convention.
  • The Vienna Convention on the Law of Treaties (done on 23 May 1963), which codifies the customary international law of treaties, sets forth two axiomatic principles: First, “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith” (ibid., Art. 26). Second, “[a] party may not invoke the provisions of its internal law as justification for its failure to perform a treaty” (ibid., Art. 27). The Republic of Indonesia, by failing to perform its obligations under Article 36 of the Vienna Convention, and by invoking the provisions of its internal law to defeat rights granted to the Republic of the Philippines and its nationals by the Vienna Convention, has violated, and continues to violate, both of these principles.
  1. Competent authorities of Indonesia failed timely to notify Ms. Veloso of her right to consular assistance under the Vienna Convention. This failure deprived a Philippine national of her rights and precluded the Philippines from exercising its rights and performing its consular functions pursuant to Articles5 and 36, respectively, of the Convention. As emphasized, consular assistance almost invariably affects the result of criminal proceedings brought against its nationals, particularly in cases in which prosecutors seek to impose a sentence of death. By violating Article 36 of the Vienna Convention, the Republic of Indonesia prevented the Republic of the Philippines from rendering consular assistance that could have prevented the convictions and death sentences.
  1. Restitutio in integrum requires the Republic of Indonesia to immediately re-establish the situation which existed before the violations to Article 36 of the Vienna Convention were committed. The Republic of the Philippines believes that restitutio in integrum in these cases is materially possible and does not involve a burden out of all proportion to Indonesia, taking into account the fundamental importance of human life.
  1. Moreover, Article 6 of the CEDAW provides that:

States Parties shall take all appropriate measures, including legislation,    to suppress all forms of traffic in women and exploitation of    prostitution of women.

  1. These measures, with respect to the Republic of Indonesia, include ensuring that victims of human trafficking are protected and are not doubly victimized through prosecution as offenders, and affording judicial protection to women who, while in a position of vulnerability, are recruited by fraud or deception, with promises of payments or benefits, for the purpose of exploitation. Finally, these also include an enabling environment for trafficking victims to comfortably access assistance and services, and where trafficking victims are treated with respect and dignity and are provided with the services they require.
  1. The Republic of Indonesia violated Article 6 of the CEDAW in its treatment of Ms. Veloso’s case, by treating her as an offender rather than as a victim of human trafficking , and failing to afford her the judicial, legislative and executive protections she is entitled to under the CEDAW.
  1. The Claims of the Philippine Government
  1. In accordance with Article 36, subparagraph 1 (b), of the Vienna Convention, the Republic of Indonesia is under the international legal obligation to the Republic of the Philippinesto inform “without delay” any Filipino national who is “arrested or committed to prison or to custody pending trial or is detained in any other manner” of his rights under that subparagraph (La Grand, Judgment of 27 June 2001, para. 77). These rights include:
  • The right, if the national arrested or detained so requests, to have the competent authorities of the receiving State inform the local consular post of the sending State that that State’s national has been so arrested or committed to prison or to custody pending trial or detained in any other manner;
  • The right to have the competent authorities of the receiving State forward any communication “addressed to the consular post from the person arrested, in prison, custody or detention . . . without delay”.
  1. The Republic of Indonesia has violated these obligations with respect to Ms. Veloso who is currently on death row.
  1. Pursuant to Article 36 of the Vienna Convention, the Republic of Indonesia is under an international legal obligation to ensure that the Republic of the Philippines can communicate with and assist an arrested national prior to trial. By failing to notify Ms. Veloso of her rights under Article36, subparagraph 1 (b), of the Vienna Convention, Indonesia has prevented the Philippines from exercising its right to carry out consular functions pursuant to Articles 5 and 36 of the Convention. Indonesia therefore has violated this obligation.
  1. Pursuant to Article 36, paragraph 2, of the Vienna Convention and Article 26 of the Vienna Convention on the Law of Treaties (done on 23 May 1969), which codifies customary international law, the Republic of Indonesia is under an international legal obligation to ensure that its municipal law and regulations enable “full effect [to be given] to the purposes for which the rights accorded under [Article 36] are intended”. (See also Draft Articles on Responsibility of States for Internationally Wrongful Acts, Art. 4.)
  • Pursuant to Article 6 of the CEDAW, the Republic of Indonesia is under an international legal obligation to ensure that Ms. Veloso, as a victim of human trafficking is given effective protection and assistance through the necessary judicial, legislative and executive mechanisms, so that she suffers no further victimization.
  1. For the reasons set forth in this Application, the municipal law of the Republic of Indonesia fails to give full effect to the rights afforded by Article 36 of the Vienna Convention and precludes the Republic of the Philippines and its nationals from vindicating those rights by law in any meaningful way, as well as to the rights afforded by Article 6 of the CEDAW. The Republic of Indonesia therefore has violated, and continues to violate, the above-mentioned international legal obligations it owed to the Republic of the Philippines.

VII.  Judgment Requested

  1. The Government of the Republic of the Philippines therefore asks the Court to adjudge and declare:
  • That the Republic of Indonesia, in arresting, detaining, trying, convicting, and sentencing Ms. Veloso to death row described in this Application, violated its international legal obligations to the Republic of the Philippines, in its own right and in the exercise of its right of consular protection of its nationals, as provided by Articles 5 and 36, respectively of the Vienna Convention;
  • that the Republic of the Philippines is therefore entitled to restitutio in integrum and to reparations for the breach by the Republic of Indonesia of its obligations under international law;
  • that the Republic of Indonesia is under an international legal obligation not to apply the doctrine of procedural default, or any other doctrine of its municipal law, to preclude the exercise of the rights afforded by Article 36 of the Vienna Convention;
  • that the Republic of Indonesia is under an international legal obligation not to carry out the sentence of death by musketry on Ms. Veloso, pursuant to Article 6 of the CEDAW, which provides judicial protection to a victim of human trafficking from further victimization through criminal prosecution, and to annul and reverse her conviction, and to forthwith cause her repatriation to the Republic of the Philippines;
  • that the Republic of Indonesia is under an international legal obligation not to carry out, in conformity with the foregoing international legal obligations, any future detention of or criminal proceedings against Ms. Veloso on death row or any other Philippine national in its territory, whether by a constituent, legislative, executive, judicial or other power, whether that power holds a superior or a subordinate position in the organization of the Republic of Indonesia, and whether that power’s functions are international or internal in character;
  • That the right to consular notification under the Vienna Convention is a human right;

and that, pursuant to the foregoing international legal obligations,

  • The Republic of Indonesia must restore the status quo ante, that is, re-establish the situation that existed before the detention of, proceedings against, and convictions and sentences of, Ms. Veloso in violation of the its international legal obligations;
  • The Republic of Indonesia must take the steps necessary and sufficient to ensure that the provisions of its municipal law enable full effect to be given to the purposes for which the rights afforded by Article 36 are intended;
  • The Republic of Indonesia must take the steps necessary and sufficient to establish a meaningful remedy at law for violations of the rights afforded to the Philippines and its nationals by Article 36 of the Vienna Convention, including by barring the imposition, as a matter of municipal law, of any procedural penalty for the failure to timely raise a claim or defense based on the Vienna Convention where competent authorities of the Indonesia breached their obligation to advise the national of his or her rights under the Convention; and
  • The Republic of Indonesia must take the steps necessary and sufficient to afford all the protections that Ms. Mary Jane Fiesa Veloso is entitled to under Article 6 of the CEDAW, including, but not limited to, her immediate release from prison and the annulment of her conviction for drug trafficking, as well as her repatriation to the Republic of the Philippines.
  • The Republic of Indonesia in light of the pattern and practice of violations set forth in this Application, must provide the Republic of the Philippines with satisfaction by way of a full guarantee of the non-repetition of the illegal acts mentioned.

VIII. The Appointment of a Judge Ad Hoc

  1. In accordance with the provisions of Article 31 (2), of the Statute and Article 35, paragraph 1, of the Rules, the Government of the Republic of the Philippines declares its intention to exercise its right to choose a judge ad hoc.
  1. Reservation of Rights

 

  1. The Government of the Republic of the Philippines reserves the right to modify and extend the terms of this Application and Request, as well as the grounds invoked.

 

  1. Provisional Measures
  1. The Government of the Republic of the Philippines requests that the Court indicate interim measures of protection, such as an injunction against the execution of Ms. Mary Jane F. Veloso.
  1. At the heart of any claim to human rights is the centrality and sanctity of an individual human life; indeed, every human being has the inherent right to life and this right shall be protected by law, as Article 6 of the International Covenant on Civil and Political Rights provides. All other rights proceed from this core human right.
  1. The grave and exceptional circumstances of this case, and given the paramount interest of the Republic of the Philippines in the life and liberty of its nationals, provisional measures are urgently needed to protect the life of Filipino national, Ms. Mary Jane Fiesta Veloso as well as the ability of this esteemed Court to order the relief to which the Republic of the Philippines is entitled to, in particular, the restoration of the status quo ante.
  1. Without the provisional measures requested, the Republic of Indonesia will execute Ms. Veloso before this Court can consider the merits of the claims propounded by the Republic of the Philippines; if the execution of the Death Sentence pronounced upon Ms. Veloso by the Republic of Indonesia is not stayed, the Republic of the Philippines will be forever deprived of the opportunity to have the status quo ante restored in the event of a judgment in its favor.
  1. On behalf of the Government of the Republic of the Philippines, I therefore respectfully request that, pending final judgment in this case, the Court indicate that:

The Republic of Indonesia shall take all measures at its disposal to              ensure that Ms. Mary Jane Fiesta Veloso is not executed pending               the final decision in these proceedings, and should inform the Court of           all the      measures which it has taken in implementation of that Order.

  • Given the extreme gravity and immediacy of the threat that authorities in the Republic of Indonesia will execute a Filipino citizen in violation of obligations it owes to the Republic of the Philippines, the Republic of the Philippines respectfully asks the Court to treat this request as a matter of the greatest urgency.
  1. The Government of the Republic of the Philippines has authorized the undersigned to appear before the Court in any proceedings or hearings relating to this Application and Request that the Court may convene in accordance with the Rules of the Court, with reservations to appoint co-agents and co-counsels as may soon be practicable under the circumstances.

The Hague, 28 April 2015.

                              Sgd.) JAIME VICTOR B. LEDDA

Ambassador Extraordinary and Plenipontentiary

Republic of the Philippines

For the soft copy, please click Application.PHvIndonesiav2

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3 comments on “Draft copy of the Veloso petition to the ICJ

  1. chito lozada says:

    Hi Harry just a quick question, what would be the desired outcome of the ICJ petition, can the international court stop Indonesia from carrying out Veloso’s execution?

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