FREEDOM FROM TORTURE

FREEDOM FROM TORTURE A Primer on the Anti-Torture Act of 2009 (Republic Act No. 9745)

Published by: Children’s Legal Rights and Development Center, Inc. In cooperation with: United Against Torture Coalition (UATC), Philippines. Copyright by Children’ Legal Rights and Development Center, Inc. December 2012, Quezon City, Philippines. Any portion of this primer may be reproduced provided proper acknowledgment is given to the publisher. Children’s Legal Rights and Development Center (CLRDC), Inc. is a nonprofit non-government organization committed to advancing and protecting children’s rights, interest and welfare against any form of violence. CLRDC holds office at Unit 401-B, CRM Building, No. 106 Kamias Road, Quezon City 1101, Philippines. Telephone No./ Fax No. (632) 4333199; Email [email protected] Cover Page Printing: Medical Action Group, Inc. Lay Out and design: Rowen Joseph Legaspi

Prepared by CLRDC Team Executive Director

: Rowena Legaspi

Associate Lawyer/Program Staff : Therese Xyza Gemelo Paralegal Coordinator

: Kristel June Igne

Training & Advocacy Staff

: Mai Victoria Pedrosa

Volunteer Lawyers Pool (VLP)

: Geepee Gonzales, , Maricris Tagle, Mirasol Dychingco

Admin and Finance Support 2

: Cristy Ramilla; Armie Baggayan

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About the Primer This primer essentially delves on the salient provisions of the Anti-Torture Act of 2009 - - from its definition, the acts constituting torture, penalties involved, the criminal liabilities of the perpetrators of the crime, as well as the legal remedies that may be availed of by the victims and survivors of torture. The text seeks to respond to issues and questions commonly asked in the law itself. It discusses to the readers the Anti-Torture Act of 2009 in a simple lingo that also attempts to fill the lacuna of the law itself. With this primer, the reader will be informed on how the AntiTorture Act of 2009 criminalizes all forms of torture - - from mental, psychological, to physical, which includes pharmacological torture (the latter is done through administering of substance or drugs); that the law also disallows any justification for torture and other cruel, inhuman and degrading treatment or punishment. Those who will be found violating this law will be penalized including the superiors in the military and also in the police force who ordered the torture.

The principle of non-

refoulement under international law has also been adopted.

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Table of Contents: Part 1: Introduction Part II: Salient Features of the Anti-Torture Act of 2009 Absolute Condemnation and Prohibition of Torture Torture defined Other Cruel, Inhuman and Degrading Treatment or Punishment defined Forms of Torture Persons Criminally Liable Principals by Command Responsibility Penalties for the Crimes of Torture Rights and Remedies under the Anti-Torture Act of 2009 Rights of a Person Arrested, Detained or under Custodial Investigation Part III: Flowchart of Legal Remedies Part 1V: Frequently Asked Questions (FAQ) on the Anti-Torture Act of 2009

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Part 1 Introduction There is no justification for torture. Under the UN Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”The prohibition on torture applies to all territories under a party's effective jurisdiction, and protects all people under its effective control, regardless of citizenship or how that control is exercised. Since the convention's entry into force, this absolute prohibition has become accepted as a principle of customary international law. ² Apart from UNCAT, other major international human rights treaties also have provisions that touched upon all aspects of torture, they are in the Universal Declaration of Human Rights (Article 26), the International Covenant on Economic, Social and Cultural Rights (Article 13), the Convention on the Rights of the Child (Article 29), the same treaties that the Philippines has ratified.

¹United Nations Convention Against Torture (UNCAT), Article 2 1.Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2.No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. 3.An order from a superior officer or a public authority may not be invoked as a justification of torture. ²CAT General Comment No. 2: Implementation of Article 2 by States Parties (http://www2.ohchr.org/english/bodies/cat/docs/CAT.C.GC.2.CRP.1.Rev.4_en.pdf) Committee against Torture.2007-11-23. pp. 2.Retrieved 2008-06-16.

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Having acceded to the said treaties, the Philippines is mandated to comply with its obligations, one act of compliance is by crafting a domestic legislation that would address torture as a crime. Twenty three years after ratifying UNCAT, the Philippines has finally recognized torture as a crime by enacting the Anti-Torture Act of 2009. Prior to the passage of the Anti-Torture Act of 2009, the Philippines has since been replete with a reservoir of legal instruments that address “ordinary” crimes but not torture. The Revised Penal Code (RPC) is the prevailing legal instrument that governs crimes or acts that involve physical assault. Sadly though in the RPC, the grievous nature of the crime of torture against ones human rights is assigned as an ordinary crime. With the enactment of the Anti-Torture Act of 2009, the crime of torture can now be treated separately and distinctly with other crimes provided in the RPC. However, the effectiveness of the Anti-Torture Act of 2009 remains to be seen considering that widespread use of torture still abounds in the Philippines despite the recent passage of the said law as well as the existence of international human rights treaties and principles that decry torture. For the year 2012 alone, Task Force Detainees of the Philippines (TFDP) has documented thirteen (13) cases of torture. Currently, there are three test cases of Torture filed by Balay Rehabilitation Center and Medical Action Group (MAG), respectively. The two cases were dismissed at the Preliminary Investigation stage. the other case is pending at a regional trial court. Jurisprudential account on the said law yields nil results of complete execution, so to speak. The ironic thing is that, torture is an everyday phenomenon, but the alleged futile application of the said law constitutes a unique phenomenon in itself, especially so that the law is fraught with gaps in the appreciation of evidence.

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Hence, the advocacy for a meaningful appreciation of the Anti-Torture Act of 2009 must continue as this law is a challenge for the re-establishment of the rule of law considering the complexities of the approaches and interventions to be employed to prosecute the offender without also trampling on his/her rights in the same way that we protect the rights of the torture victim as an accused in a crime.

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Part II Salient Features of the Law R.A. No. 9745: ABSOLUTE CONDEMNATION AND PROHIBITION OF TORTURE Republic Act (R.A.) No. 9745 or the “Anti-Torture Act of 2009” was signed into law by then President Gloria M. Arroyo on 10 November 2009. It was enacted “to fully adhere to the principles and standards on the absolute condemnation and prohibition of torture as provided for in the 1987 Philippine Constitution and various international instruments to which the Philippines is a State party.” The law penalizes: (1) Torture, and (2) Other cruel, inhuman and degrading treatment or punishment. It also prohibits: secret detention places, solitary confinement, incommunicado or other similar forms of detention, where torture may be carried out with impunity.

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“Torture,” defined It is an act –

1. by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person except such pain or suffering arising from, inherent in or incidental to lawful sanctions;

2. by or at the instigation of or with the consent or acquiescence of a person in authority or agent of a person in authority; 3. for such purposes as: obtaining from him/her or a third person information or a confession; punishing him/her for an act he/she or a third person has committed or is suspected of having committed; or intimidating or coercing him/her or a third person; or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a person in authority or agent of a person in authority. (Section 3a)

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“Other cruel, inhuman and degrading treatment or punishment,” defined It is – 1. a deliberate and aggravated treatment or punishment not enumerated under Section 4 of the Act which attains a level of severity causing suffering, gross humiliation or debasement to the victim. 2. inflicted by a person in authority or agent of a person in authority against a person under his/her custody. (Section 3b) Forms of “torture” 1. Physical torture a form of treatment or punishment inflicted by a person in authority or agent of a person in authority upon another in his/her custody that causes severe pain, exhaustion, disability or dysfunction of one or more parts of the body. (Section 4a)

2. Mental/Psychological Torture acts committed by a person in authority or agent of a person in authority which are calculated to affect or confuse the mind and/or undermine a person's dignity and morale. (Section 4b)

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Specific Acts of Physical Torture 1. Systematic beating, head-banging, punching, kicking, striking with truncheon or rifle butt or other similar objects, and jumping on the stomach; 2. Food deprivation or forcible feeding with spoiled food, animal or human excreta and other stuff or substances not normally eaten; 3. Electric shock; 4. Cigarette burning; burning by electrically heated rods, hot oil or acid, or by the rubbing of pepper or other chemical substances on mucous membranes, or acids or spices directly on the wound(s); 5. The submersion of the head in water or water polluted with excrement, urine, vomit and/or blood until the brink of suffocation; 6. Being tied or forced to assume fixed and stressful bodily position; 7. Rape and sexual abuse, including the insertion of foreign objects into the sex organ or rectum, or electrical torture of the genitals; 8. Mutilation or amputation of the essential parts of the body such as the genitalia, ear, tongue, etc.; 9. Dental torture or the forced extraction of the teeth; 10.Pulling out of fingernails; 11.Harmful exposure to the elements such as sunlight and extreme cold; 12.The use of plastic bag and other materials placed over the head to the point of asphyxiation; 13.The use of psychoactive drugs to change the perception, memory. alertness or will of a person, such as: a. The administration or drugs to induce confession and/ or reduce mental competency; or b. The use of drugs to induce extreme pain or certain symptoms of a disease; and 14.Other analogous acts of physical torture. (Section 4 a)

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Specific Acts of Mental/Psychological Torture: 1. Blindfolding; 2. Threatening a person(s) or his/her relative(s) with bodily harm, execution or other wrongful acts; 3. Confinement in solitary cells or secret detention places; 4. Prolonged interrogation; 5. Preparing a prisoner for a “show trial,” public display or public humiliation of a detainee or prisoner; 6. Causing unscheduled transfer of a person deprived of liberty from one place to another, creating the belief that he/she will be summarily executed; 7. Maltreating a member/s of a person's family; 8. Causing the torture sessions to be witnessed by the person’s family, relatives or any third party; 9. Denial of sleep/rest; 10.Shame infliction such as stripping the person naked, parading him/her in public places, shaving the victim’s head or putting marks on his/her body against his/her will; 11.Deliberately prohibiting the victim to communicate with any member of his/her family; and 12.Other analogous acts of mental/psychological torture. (Section 4b)

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Persons Criminally Liable The law attaches criminal liability to principals, accomplices and accessories to the crimes of “torture” and “other cruel, inhuman and degrading treatment or punishment.” PRINCIPAL 1. By actual participation; 2. By inducement; 3. By indispensable cooperation; 4. For issuing an order to a lower ranking military, police or law enforcement personnel to commit torture for whatever purpose; and 5. By the application of the doctrine of command responsibility (Please see succeeding section) ACCOMPLICE One who did not perform any of the acts of the principal but cooperated in the execution of the crime by previous or simultaneous acts. ACCESSORY A public officer or employee who has knowledge that a crime (as defined under the Anti-Torture Act of 2009) is being committed and without having participated in its commission, either as principal or accomplice takes part subsequent to its commissiona. By profiting from or assisting the offender to profit from the effects of the crime; or b. By concealing the act of torture or other cruel, inhuman and degrading treatment or punishment and/or destroying the effects or instruments of torture in order to prevent its discovery; or c. By protecting, hiding or assisting in the escape of the principal/s in the act of torture or other cruel, inhuman and degrading treatment or punishment, Provided, that the accessory acts are done with the abuse of the official’s public functions. 15

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Principals by Command Responsibility Who may be held criminally liable as principal under this doctrine? The immediate commanding officer of the unit concerned of the AFP or the immediate senior public official of the PNP and other law enforcement agencies. When may the commanding officer or immediate senior public official be held liable as principal under this doctrine? He or she is liable as principal when - his/her act or omission, or negligence shall have led, assisted, abetted or allowed, whether directly or indirectly, the commission of the crime by his/her subordinates;

-

he/she has knowledge of or, owing to the circumstances at the time, should have known that acts of torture or other cruel, inhuman and degrading treatment or punishment shall be committed, is being committed, or has been committed by his/her subordinates or by others within his/her area of responsibility and, - despite such knowledge, he/she did not take preventive or corrective action either before, during or immediately after its commission, when he/she has the authority to prevent or investigate allegations of torture or other cruel, inhuman and degrading treatment or punishment but failed to prevent or investigate allegations of such act, whether deliberately or due to negligence. (Section 13 par. 3)

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Penalties for the Crime of Torture Any person who commits an act of torture under the following circumstances present: a. Torture resulting in the death of any person; b. Torture resulting in mutilation;

Reclusion Perpetua (20 years and 1 day to 40 years of imprisonment)

c. Torture with rape; d.

e.

Torture with other forms of sexual abuse and, in consequence of torture, the victim becomes insane, imbecile, impotent, blind or maimed for life; and Torture committed against children.

If a person commits any act of mental/ psychological torture resulting in: - insanity - complete or partial amnesia - fear of becoming insane or suicidal tendencies of the victim due to guilt, worthlessness or shame.

Reclusion Temporal (12 years & 1 day to 20 years of imprisonment)

If a person commits any act in consequence of torture where the victim: - loses the power of speech or the power to hear or to smell; or - loses an eye, a hand, a foot, an arm or a leg; or - loses the use of any such member; or - shall become permanently incapacitated for labor.

Prision Mayor medium and maximum periods (8 years & 1 day to 10 years to 10 years & 1 day to 12 years of imprisonment)

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Any act in consequence of torture where the victim: - becomes deformed; or - loses any part of his/her body other than those cited above; - loses the use thereof, or becomes ill or incapacitated for labor for a period of more than ninety (90) days.

Prision Mayor minimum and medium periods (6 years & 1 day to 8 years to 8 years & 1 day to 10 years of imprisonment)

If a person commits any act of torture: - resulting in psychological, mental and emotional harm other than torture; - resulting in insanity, complete or partial amnesia, fear of becoming insane or suicidal tendencies of the victim due to guilt, worthlessness or shame. Any person who establishes, operates and maintains secret detention places and/or effect or cause to effect solitary confinement, incommunicado or other similar forms of prohibited detention.

Prision Correctional (6 months, & 1 day to 6 years)

If a person who commits any act as a result of torture where the victim becomes ill or incapacitated for labor for more than thirty (30) days but not more than ninety (90) days.

Prision Correctional in its maximum period to prision mayor in its minimum period (4 years, 2 months & 1 day to 6 years to 6 years & 1 day to 8 years)

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If a person commits any act as a result of torture where the victim shall have been ill or incapacitated for labor for thirty (30) days or less.

Prision Correctional in its minimum and medium period (6 months, & 1 day to 2 years & 4 months to 2 years, 4 months & 1 day to 4 years & 2 months)

If responsible officers or personnel of the AFP, the PNP and other law enforcement agencies fail to perform his/her duty to maintain, submit or make available to the public an updated list of detention centers and facilities with the corresponding data on the prisoners or detainees incarcerated or detained therein, pursuant to Section 7 of the AntiTorture Act of 2009.

Arresto Mayor (1 month & 1 day to 6 months)

If the crime committed falls under “other cruel, inhuman or degrading treatment or punishment”

Arresto Mayor

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Rights and Remedies Under The Anti-Torture Act of 2009 Notwithstanding all other applicable laws, the following rights and remedies shall be afforded to victims of torture:

1. Legal assistance The Commission on Human Rights and the Public Attorney's Office shall render legal assistance in the investigation and monitoring and/or filing of the complaint. 2. Right to Physical, Medical and Psychological Examination a. Right to be informed of the right to demand physical examination by an independent and competent doctor of his/her own choice b. Demand to be provided by the State if he cannot afford the services of a private doctor. No cost shall accrue to the victim when the medical examination is provided by the State (§19 of the IRR); c. Request for psychological evaluation, if available d. Access proper and adequate medical treatment to document possible allegations of torture (§12 of RA 9745 viz. §19 of the IRR) and have his/her physical examination and/or psychological evaluation be contained in a medical report, duly signed by the attending physician and detailing the victim’s medical history and the physician’s findings, including the nature and probable cause of the his/her injury, pain, disease and/or trauma, and the approximate time and date when it/they was/were sustained. The report is to be attached to the custodial investigation report and considered a public document.

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e. Knowingly and voluntarily waive these rights in writing, executed in the presence and assistance of his/her counsel. 3. Institutional Protection Prompt and an impartial investigation Within sixty (60) working days from the lodging of the complaint, the concerned government agency such as the CHR, DOJ, PAO, NBI and the PNP shall complete and make available its investigation report and/or resolution, including appeals thereon, on the allegation of torture or other cruel, inhumane and degrading treatment or punishment (§9 of RA 9745)

Sufficient government protection against all forms of harassment; threat and/or intimidation as a consequence of the filing of complaint or the presentation of evidence Avail of the benefits of Republic Act No. 6981 or the “Witness Protection, Security and Benefit Act” Place the alleged perpetrator under preventive suspension during the period of administrative investigation; Transfer of the detainee to a safe place (§16 of the IRR) Sufficient protection to avoid further trauma in presentation of evidence: 4. Expeditious disposition of Writs of Habeas Corpus, Amparo and Habeas Data Proceedings filed by Torture Victims (Section 10)

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5. Applicability of Refouler A person in danger of being subjected to torture shall not be expelled, returned or extradited to another State where there are substantial grounds to believe that such person shall be in danger of being subjected to torture. 6. Right to Compensation A victim has the right to claim compensation as provided for under Republic Act No. 7309 for an amount not lower than Ten Thousand Pesos (P10,000.00). He may also avail of other financial relief programs. These claims are nonexclusive; the victims may avail of both. 7. Rehabilitation The Department of Social Welfare and Development (DSWD), Department of Justice (DOJ) and Department of Health (DOH), together with human rights nongovernment organizations duly recognized by the government, are mandated to formulate a comprehensive rehabilitation program for the physical, mental, social, psychological healing and development of victims of torture and their families.

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Republic Act 7309 is “ An Act Creating A Board Of Claims under the Department Of Justice for victims of Unjust Imprisonment or Detention and Victims of Violent Crimes and for Other Purposes. ” This was passed into law on March 30, 1992.

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Rights of a person arrested, detained or under custodial investigation

Under Section 2 of R.A. 7438, any person arrested, detained or under custodial investigation shall: a. At all times be assisted by counsel; b. Be informed, in a language known to and understood by him/her, of his/her rights to remain silent and to have competent and independent counsel, preferably of his/her own choice, who shall at all times be allowed to confer privately with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided with a competent and independent counsel by the investigating officer; c. Have the custodial investigation report be reduced to writing by the investigating officer, provided that before such report is signed, or thumb marked if he/she does not know how to read and write, it shall be read and adequately explained to him/her by his/her counsel or by the assisting counsel provided by the investigating officer in the language or dialect known to him/her, otherwise, such investigation report shall be null and void and of no effect whatsoever; d. Have any extrajudicial confession made by him/ her be in writing and signed by him/her in the presence of his/her counsel or in the latter's absence, upon a valid waiver, and in the presence of any of the parents, elder brothers and sisters, his/her spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him/her; otherwise, such extrajudicial confession shall be inadmissible as evidence in any proceeding;

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e. Have any waiver by him/her under the provisions of Article 125 of the Revised Penal Code, or under custodial investigation, be in writing and signed by him/her in the presence of his/her counsel; otherwise the waiver shall be null and void and of no effect; f. Be allowed visits by or conferences with any member of his/her immediate family, or any medical doctor or priest or religious minister chosen by him/her or by any member of his/her immediate family or by his/her counsel, or by any national non-governmental organization duly accredited by the Commission on Human Rights or by any international non-governmental organization duly accredited by the Office of the President. The person's "immediate family" shall include his or her spouse, fiancé or fiancée, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward.

Republic Act No. 7438 is An Act Defining Certain Rights Of Person Arrested, Detained Or Under Custodial Investigation As Well As The Duties Of The Arresting, Detaining And Investigating Officers, And Providing Penalties For Violations Thereof .

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Frequently Asked Questions (FAQ'S) 1.

What is the constitutional basis of the Anti-Torture Act of 2009? The 1987 Constitution of the Philippines provides the basis for the enactment of the law on torture, Section 12 of Article III, Bill of Rights provides: “(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. Xxx (4) The law shall provide for penal and civil sanctions for violations of this Section as well as compensation to the rehabilitation of victims of torture or similar practices, and their families.”

2.

Does the Anti-Torture Act of 2009 penalize all forms of torture committed by any person? No. The law limits its coverage to torture “by or at the instigation of or with the consent or acquiescence of a person in authority or agent of a person in authority” and excludes from its coverage that committed by non-state actors.

3.

How shall “torture” prosecuted?

by

non-state

actors

be

It shall be prosecuted under the Revised Penal Code or other applicable penal laws.

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4.

a. b. c. d. e. f. 5.

Who is a person in authority? A person who is directly vested with jurisdiction, whether as an individual or a member of a court, government corporation, board or commission such as but not limited to: All elected officials; Members of the Armed Forces of the Philippines (AFP), Philippine National Police (PNP), and National Bureau of Investigation (NBI); Members of the Bureau of Jail Management and Penology Members of the Cabinet; Members of the Constitutional Commissions; and Justices and judges of the Judiciary Who is an agent of a person in authority?

Any person who is lawfully elected or appointed by a competent authority to maintain public order and the protection and security of life and property. This includes but is not limited to: a. Barangay Tanod; and b. Those who come to the aid of persons in authority 6.

Is a security guard a person in authority? No. A security guard is not a person in authority. An act of torture committed by a security guard may not be prosecuted under the Anti-Torture Act of 2009 but will be pursued under the applicable penal laws such as the Revised Penal Code.

7.

An important element of the crime of torture is that the victim is placed under the custody of the perpetrator. What is custodial investigation? Custodial investigation involves any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his/her

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freedom of action in any significant way. It is only after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that lend itself to eliciting incriminating statements that the rule begins to operate. (People vs. Marra et al., G.R. No. 108494 September 20, 1994 citing Escobedo vs. Illinois, 378 U.S. 473 [1964]) 8.

When a person is merely “invited” to be investigated in connection with an offense he suspected to have committed, is he considered to have been under custodial investigation? Yes. Custodial investigation shall include the practice of issuing an invitation to a person who is investigated in connection with an offense he/she is suspected to have committed.

9.

Who may be a victim of torture? Any person who was deprived of his/her liberty, detained, or put under custody or arrest, or under custodial investigation may be a victim of torture.

10. How about torture?

children,

may

they

be

victims

of

Yes. The law recognizes the vulnerability of children as potential victims of torture. Thus, torture committed against children has a higher penalty, i.e. reclusion perpertua, than that when the victim of torture is an adult. The same penalty is given when torture resulted in mutilation or the death of any person; when it is committed with rape, or with other forms of sexual abuse and, in consequence of such torture, the victim shall have become insane, imbecile, impotent, blind or maimed for life.

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11. How shall children victims of torture be dealt with? They shall be at all times be accompanied by a social worker from the local social welfare and development office in the filing of the complaint. The LSWDO shall also ensure that medical examination of the child be conducted preferably with the presence of the parent or legal guardian. (Section 15(b) of the IRR) Moreover, child psychologists, child psychiatrists or court -appointed special advocate/ guardian ad litem shall be provided to them in accordance with the rules on the examination of a child witness. (Section 17 par. 3 of the IRR) The medical report involving a child victim shall also be kept confidential despite the fact that a medical report is given the character of a public document. 12. How about children accused of torture, how shall they be handled and treated? They shall be handled and treated in accordance with Republic Act Nos. 7160 (Local Government Code of 1991) and 9344 (Juvenile Justice and Welfare Act of 2006) and other related laws. Any doubtful provision of the law, its rules and regulations, shall be liberally construed in favor of the child involved in torture acts, i.e., consistent with the best interest of the child, the declared state policy, the rights and principles of restorative justice. (Section 28 of the IRR) 13. What does the law provide with respect treatment of women as victims of torture?

to

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the presence of a family member, preferably female, of sufficient age and discretion, or a representative of any organization authorized by the victim. (Section 21 of the IRR) 14. In the event that the Philippines is under a state of war or a threat of war, internal political instability, or any other public emergency, may torture be resorted through an order of battle? No. Torture can never be justified even if there is an “order of battle” which refers to any document or determination made by the military, police, or any law enforcement agency of the government, listing the names of persons and organizations that it perceives to be enemies of the State and that it considers as legitimate targets as combatants that it could deal with, through the use of means allowed by domestic and international law. 15. Where shall one seek help if he/she becomes a victim of torture? He/she may report the torture to the Barangay Human Rights Action Center (BHRAC). 16. What is BHRAC? It is the barangay institutional mechanism which receives and refers complaints of human rights violations, including torture. 17. What should one do if there is no BHRAC in the locality? One may seek the assistance of human rights organization or the local chapter of the Integrated Bar of the Philippines. He/she may also seek the assistance of the Commission on Human Rights or the Public 31

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Attorneys’ Office (PAO). The PAO shall help the victim in the preparation of affidavits and other legal documents. 18. Blindfolding was enumerated as one of the acts of mental/psychological torture. When a victim was blindfolded all throughout the interrogation and was not able to identify the police officer responsible for the torture suffered, may the case still proceed absent such identification? Yes. By the nature of the act committed, identification of the perpetrators would be difficult if not totally impossible. However, circumstantial evidence may be presented to support the allegation of torture. Moreover, the immediate commanding officer may be held criminally liable applying the doctrine of command responsibility. 19. Upon filing of the complaint for torture, when may one expect that the investigation on his allegation be concluded? Within 60 working days from the time that the complaint was filed, the investigating officer shall determine whether an information for torture shall be filed against the alleged perpetrator. An appeal from the resolution shall likewise be resolved within the same period. 20. What are the remedies if a complaint for torture is dismissed? If the complaint was dismissed by the Office of the Prosecutor, a motion for reconsideration may be filed and if the same is denied, a petition for review before the Department of Justice may be resorted to.

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21. What happens to the main case filed against the victim upon filing a complaint for torture? The main case shall proceed independently from the torture case. A conviction or acquittal in the former shall have no bearing on the latter and vice versa. 22. May torture stand as a separate crime even if committed in the event of or with ordinary or common crimes? Torture as a crime will not absorb or will not be absorbed by any other crime or felony committed as a consequence, or as a means in the conduct or commission, of such torture. Torture will be treated as a separate and independent criminal act, the penalties for which will be imposed without prejudice to any other criminal liability under domestic and international laws. 23. May the perpetrator of torture be granted amnesty? No. The perpetrator shall not benefit from any special amnesty law or similar measures that will have the effect of exempting him/her from any criminal proceedings and sanctions. 24. Does the crime of torture prescribe? No. The statute of limitation or prescription shall not apply to torture case. (Section 45 of the IRR).

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25. If after being tortured, one confessed to a crime he did not commit, may his/her confession be used to convict him/her? No. Any confession, admission or statement obtained as a result of torture is inadmissible in evidence in any proceeding. 26. May the confession under torture be used as evidence against the perpetrator of torture Yes. The confession, admission or statement of a tortured victim may be used as evidence against the perpetrator. 27. Is it necessary that a torture case has been initiated and concluded before one may avail of a financial relief program? No. A victim of torture may directly seek financial relief from concerned government agencies such as the CHR even before a case of torture is successfully prosecuted. Take note, however, that there must be a finding that torture was committed before one may file a claim for Php10,000 before the Board of Claims of the Department of Justice in accordance with R.A. No. 7309. 28. What other remedies may be availed of on behalf of a victim of torture? A petition for the issuance of a writ of habeas corpus, writ of amparo, and/or writ of habeas data may be filed on behalf of the victim. Proceedings pertaining thereto shall be disposed of expeditiously and any order of release by virtue thereof, or other appropriate order of a court relative thereto, shall be executed or complied with immediately. 34

Children's Legal Rights and Development Center (CLRDC), Inc. Copyright December 2012

29. What is the role of the CHR in the implementation of the law? The Commission on Human Rights (CHR) shall: exercise visitorial powers at any time over jails, prisons and detention facilities. have unrestricted access to any detention facility inside military camps, police lock-up cells, jails, prisons, youth homes, and any detention, rehabilitation, confinement and other similar facilities. conduct a fact-finding investigation upon the filling of a complaint of torture. Render legal assistance in the investigation and monitoring and/or filing of the complaint for a person who suffers torture and other cruel , inhuman and degrading treatment or punishment regardless of whether the complainant is indigent or not. Render financial assistance to victims of torture. Ensure the integration of human rights, anti-torture act of 2009 and other related laws in all primary, secondary and tertiary level academic institutions nationwide. 30. What other government agencies have been given specific roles under the law? The following are mandated under the law to perform specific duties: Local chief executives, PNP, AFP, NBI, BJMP, BuCor, PDEA, and other law enforcement agencies - Required to update monthly the list of all detention centers and facilities under their jurisdiction. The register of detainees shall include the names, dates of arrest and incarceration, and the nature of the crime or offense charged.

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Center for Health Development, DOH - Ensure that victims are referred to the appropriate health facilities within their jurisdiction Barangay Human Rights Action Officer Conduct an information campaign on the law DFA and the Secretary of Justice Determine whether there are substantial grounds to believe that a person shall be in danger of being subjected to torture and therefore should not be expelled, returned or extradited to another State. CHR, DOJ, the Department of National Defense (DND), the Department of the Interior and Local Government (DILG) Ensure that education and information regarding prohibition against torture and other cruel, inhuman and degrading treatment or punishment shall be fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment. Department of Education - Ensure the integration of human rights education courses in all primary, secondary and tertiary level academic institutions nationwide 31. What is the role of the implementation of the law?

CSOs/NGOs

in

the

NGOs/CSOs should actively participate in the implementation of the law. In their exercise of oversight functions, they may request to conduct inquiries, consultations, and/or ocular inspections regarding documented violations of the law. 36

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Directory of organizations against Torture United Against Torture Coalition (UATC) - Philippines 18-A Marunong St., Brgy. Central, Quezon City, Philippines Telephone/Fax: (+632) 927-60-08 E-mail Address: [email protected] Commission on Human Rights (CHR) SAAC Bldg., UP Complex, Commonwealth Avenue Diliman, Quezon City, Philippines Telephone: 926-61-88 / 928-08-48 Fax: (+632)929-01-02 Amnesty International-Philippines (AIP) 18-A Marunong St., Brgy. Central, Quezon City, Philippines Telephone/Fax: (+632) 927-60-08 E-mail Address: [email protected] Balay Rehabilitation Center Inc. (BALAY) 25 Maalindog Street UP Village, Diliman, Quezon City, Philippines Telephone/Fax: (+632) 921-63-01 E-mail Address: [email protected] Children’s Legal Rights and Development Center, Inc. (CLRDC) Unit 401-B, CRM Bldg. No. 106 Kamias Road, East Kamias, Quezon City, Philippines Telephone/Fax: (+632) 433-31-99 E-mail Address: [email protected] Legal Aid Center for Human Rights, Inc. (LACHR) 152-E2 Maginhawa Street, Sikatuna Village, Quezon City, Philippines Telephone/Fax: (+632) 433-08-62 E-mail Address: [email protected] Medical Action Group (MAG) 129-D Matatag Street, Brgy. Central, Diliman Quezon City, Philippines Telephone/Fax: (+632) 433-15-94 E-mail Address: [email protected] Philippine Alliance of Human Rights Advocates (PAHRA) 53-B Maliksi Street, Barangay Pinyahan, Quezon City, Philippines Telephone/Fax: (+632) 436-26-33 E-mail Address: [email protected] Task Force Detainees of the Philippines (TFDP) 45 St. Mary Street, Cubao, Quezon City, Philippines Telephone: (+632) 437-80-54 Fax: (+632) 995-02-46 E-mail Address: [email protected] 37

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Children’s Legal Rights and Development Center, Inc. (CLRDC) Unit 401-B, CRM Bldg. No. 106 Kamias Road, East Kamias, Quezon City, Philippines Telephone/Fax: (+632)433-31-99 E-mail Address: [email protected] Blogsite: http://clrdc.wordpress.com

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Children's Legal Rights and Development Center (CLRDC), Inc. Copyright December 2012