Group 4: Siao, Ma.

Karla Sibi, Summer, Valendez, Mikko Gabriel Veloso, Sweet Aurestelle Yap, Jessica

You can judge a society by how well it treats its prisoners -Fyodor Dostoevsky

Definition
(a) "Torture" refers to an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person 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. It does not include pain or Buffering arising only from, inherent in or incidental to lawful sanctions. (b) "Other cruel, inhuman and degrading treatment or punishment" refers to a deliberate and aggravated treatment or punishment not enumerated under Section 4 of this Act, inflicted by a person in authority or agent of a person in authority against a person under his/her custody, which attains a level of severity causing suffering, gross humiliation or debasement to the latter.

 (c) "Victim" refers to the person subjected to torture or other cruel, inhuman and degrading treatment or punishment as defined above and any individual who has suffered harm as a result of any act(s) of torture, or other cruel, inhuman and degrading treatment or punishment. (d) "Order of Battle" 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.

TORTURE:
Severe pain or suffering whether physical or mental Intentionally inflicted Act is by or at the instigation of or with consent of a person in authority or his agent

Purposes:
- obtain information or confession (victim or third person) - Punish the victim for what he or third person has or is suspected of doing - Intimidate or coerce (victim or third person) - -discrimination of any kind

SEC 04
ACTS PUNISHABLE

A. Physical Torture
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, such as:
(1) Systematic beating, headbanging, 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, acid; 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: (i) The administration or drugs to induce confession and/or reduce mental competency; or (ii) The use of drugs to induce extreme pain or certain symptoms of a disease; and (14) Other analogous acts of physical torture

B. 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, such as:
(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 shall 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 5. Other Cruel, Inhuman and Degrading Treatment or Punishment.

Other cruel, inhuman or degrading treatment or punishment refers to a deliberate and aggravated treatment or punishment not enumerated under Section 4 of this Act, inflicted by a person in authority or agent of a person in authority against another person in custody, which attains a level of severity sufficient to cause suffering, gross humiliation or debasement to the latter. The assessment of the level of severity shall depend on all the circumstances of the case, including the duration of the treatment or punishment, its physical and mental effects and, in some cases, the sex, religion, age and state of health of the victim.

Significance of the level of severity

According to case laws, cruel and inhuman treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, including the duration of the treatment, its physical and mental effects and, in some cases, the sex, religion, age and state of health of the victim. However, the treatment need not be intended to cause suffering. On the other hand, degrading treatment requires treatment of sufficient severity which involves some form of gross humiliation or debasement. However, it is not necessary that the treatment have this particular purpose. The difference between cruel and inhuman treatment and degrading treatment on the one hand and torture on the other relates more to the purpose of the perpetrator rather than any gradation in suffering.

Why of the Inclusion of Sec.5?

For an act to be prohibited as torture, it must involve severe pain and suffering, it must be intentionally inflicted, and it must be inflicted for a purpose referred to in the definition in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). While the requirement that the perpetrator be a public official or a person acting in an official capacity is contained in CAT, it is not contained in the ICCPR. Conduct not meeting the threshold of torture may be regarded as cruel, inhuman or degrading treatment or punishment ('ill treatment').

Section 6 An Absolute Right.

Torture and other cruel, inhuman and degrading treatment or punishment as criminal acts shall apply to all circumstances. A state of war or a threat of war, internal political instability, or any other public emergency, or a document or any determination comprising an "order of battle" shall not and can never be invoked as a justification for torture and other cruel, inhuman and degrading treatment or punishment.

Section 8. Applicability of the Exclusionary Rule; Exception

Any confession, admission or statement obtained as a result of torture shall be inadmissible in evidence in any proceedings, except if the same is used as evidence against a person or persons accused of committing torture.

 (a) To have a prompt and an impartial investigation by the CHR and by agencies of government concerned such as the Department of Justice (DOJ), the Public Attorney's Office (PAO), the PNP, the National Bureau of Investigation (NBI) and the AFP. A prompt investigation shall mean a maximum period of sixty (60) working days from the time a complaint for torture is filed within which an investigation report and/or resolution shall be completed and made available. An appeal whenever available shall be resolved within the same period prescribed herein, .

Section 9. Institutional Protection of Torture Victims and Other Persons Involved

Section 10. Disposition of Writs of Habeas Corpus, Amparo and Habeas Data Proceedings and Compliance with a Judicial 0rder.
A writ of habeas corpus or writ of amparo or writ of habeas data proceeding, if any, filed on behalf of the victim of torture or other cruel, degrading and inhuman treatment or punishment 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.

 (b) To have sufficient government protection against all forms of harassment; threat and/or intimidation as a consequence of the filing of said complaint or the presentation of evidence therefor. In which case, the State through its appropriate agencies shall afford security in order to ensure his/her safety and all other persons involved in the investigation and prosecution such as, but not limited to, his/her lawyer, witnesses and relatives; and (c) To be accorded sufficient protection in the manner by which he/she testifies and presents evidence in any fora in order to avoid further trauma

Section 11. Assistance in Filing a Complaint.

The CHR and the PAO shall 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, or for any interested party thereto. The victim or interested party may also seek legal assistance from the Barangay Human Rights Action Center (BRRAC) nearest him/her as well as from human rights nongovernment organizations (NGOs).

Who are Criminally Liable? (Sec.13)

The following are deemed as principals: 1. Direct participator, inducer and indispensable cooperator (Sec.13, par.1) 2. Superior military, police, or law enforcement officer or senior government official who ordered any lower ranking personnel to commit torture for whatever purpose (Sec.13, par.2)

3. Immediate commanding officer of the unit of AFP; immediate senior public official of the PNP and other law enforcement agencies for any act, omission or negligence committed by him that led, assisted, abetted or allowed, directly or indirectly, the commission thereof; (Sec. 13, par.3) 4. Commanding officer or senior public official who has knowledge of or should have been committed by his subordinates or others within his area of responsibility and, despite such knowledge, did not take preventive or corrective action before, during or immediately after its commission, when he ahs the authority to prevent or investigate allegations thereof but failed to do so, whether deliberately or due to negligence. (Sec.13, par.4)

The following are accessories: Any public officer or employee who has knowledge that torture or other cruel, inhuman and degrading treatment or punishment is being committed and without having participated therein, either as principal or accomplice, takes part subsequent to its commission in any of the following manner: (a) By themselves profiting from or assisting the offender to profit from the effects of the act of torture or other cruel, inhuman and degrading treatment or punishment; (b) By concealing the act of torture or other cruel, inhuman and degrading treatment or punishment and/or destroying the effects or instruments thereof in order to prevent its discovery; or (c) By harboring, concealing 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 officials public functions.

Penalties
Sec.14 defines the following special complex or composite crimes (except torture against children) The penalty is higher by one or two degrees than those in Art.263 and 265 on serious and less serious physical injuries inflicted by wounding, beating assaulting or employing injuries substance on the victim.

Sec.14 Punishable Acts Par.(a) (1) Torture resulting in the death of any person (torture with homicide) (2) Torture resulting in mutilation; (3) Torture with rape; (4) Torture with other forms of sexual abuse and, in consequence of torture, the victim shall have become insane, imbecile, impotent, blind or maimed for life; and (5) Torture committed against children.

Penalties RP

- For other penalties, refer to Sec. 14(b) to (j)

Torture as a Separate and Independent Crime

Sec. 15 provides that Torture as a crime shall not absorb or shall not be absorbed by any other crime or felony committed as a consequence, or as a means in the conduct or commission thereof. In which case, torture shall be treated as a separate and independent criminal act whose penalties shall be imposable without prejudice to any other criminal liability provided for by domestic and international laws

Is there Double Jeopardy?

No. The punishable acts committed under the RPC and this Act are two distinct and different offenses. Hence, the offender will not be tried for the same offense.

Applicability of the RPC

Sec. 22 states that provisions of the Revised Penal Code insofar as they are applicable shall be suppletory to this Act. Moreover, if the commission of any crime punishable under Title Eight (Crimes Against Persons) and Title Nine (Crimes Against Personal Liberty and Security) of the Revised Penal Code is attended by any of the acts constituting torture and other cruel, inhuman and degrading treatment or punishment as defined herein, the penalty to be imposed shall be in its maximum period.

Exclusion from the Coverage of Special Amnesty Law

Under Sec.16, the persons who have committed any act of torture shall not benefit from any special amnesty law or similar measures that will have the effect of exempting them from any criminal proceedings and sanctions.

Sec. 17. Applicability of Refouler

No person shall 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. For the purposes of determining whether such grounds exist, the Secretary of the Department of Foreign Affairs (DFA) and the Secretary of the DOJ, in coordination with the Chairperson of the CHR, shall take into account all relevant considerations including, where applicable and not limited to, the existence in the requesting State of a consistent pattern of gross, flagrant or mass violations of human rights.

Refoulement means the expulsion of persons who have the right to be recognised as refugees. The principle of non-refoulement has first been laid out in 1954 in the UN-Convention relating to the Status of Refugees, which, in Article 33(1) provides that:

"No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."
It is important to note, that the principle of non-refoulement does not only forbid the expulsion of refugees to their country of origin but to any country in which they might be subject to persecution. The only possible exception provided for by the UN Convention is the case that the person to be expelled constitutes a danger to national security (Art 33(2)).1 Although the principle of non-refoulement is universally accepted, problems with refoulement frequently arise through the fact, that its application requires a recognised refugee status. However, not all countries are members to the UN Convention relating to the Status of Refugees or may not have established formal procedures for determining refugee status.

Refouler
General Rule: Refouler - No person shall 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 Exception: the person to be expelled constitutes a danger to national security, then extradite him. Exception to the Exception (GR): If foreign national has already served sentence for AntiTorture and a country has a request for extradition, and there is ground to believe that he may be tortured, apply refouler.

Notable sections in the IRR

Section 9. Nature of the Offense. Any person having personal knowledge of the circumstances involving the commission of a crime may file a complaint under the punishable acts

Notable sections in the IRR

Section 11. Inspection by the CHR of Detention, Rehabilitation, Confinement and other Similar Facilities The Commission of Human Rights (CHR) shall exercise its visitorial powers at any time over jails, prisons and detention facilities and it shall 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. The custodial authorities shall validate or verify the identity and authority of the CHR visitation team without delay.

Section 35. Who may file. The victim, a relative of the victim within the fourth degree of consanguinity, or an authorized human rights NGO may assist the victims in filing a claim.

Section 45. Torture as a Non-Prescriptible offense. The statute of limitation or prescription period shall not apply to torture cases.

Relevant Laws: 1. Constitution

1987 Constitution of the Republic of the Philippines (Prohibition on Torture) Section 12. Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. 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. Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. 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. Revised Penal Code

1. Art. 235. Maltreatment of Prisoners. - The penalty of arresto mayor in its medium period to prision correccional in its minimum period, in addition to his liability for the physical injuries or damage caused, shall be imposed upon any public officer or employee who shall overdo himself in the correction or handling of a prisoner or detention prisoner under his charge, by the imposition of punishment not authorized by the regulations, or by inflicting such punishment in a cruel and humiliating manner.
If the purpose of the maltreatment is to extort a confession, or to obtain some information from the prisoner, the offender shall be punished by prision correccional in its minimum period, temporary special disqualification and a fine not exceeding 500 pesos, in addition to his liability for the physical injuries or damage caused.

2. Revised Penal Code

Title Eight Crimes Against Persons Title Nine Crimes Against Personal Liberty and Security RECALL:
Section 15. Torture as a Separate and Independent Crime. Section 22. Applicability of the Revised Penal Code penalty to be imposed in the maximum

3. Human Security Act of 2007 (RA 9372)

- Purpose of terrorism: to sow and create a condition of widespread and extraordinary fear and panic among the populace in order to coerce the government to give in to an unlawful demand. - Torture of detainees suspected of acts of terrorism or conspiracy to commit terrorism is one of the punishable acts - Penalty for Torture - Prosecution under RA 9372 shall be a bar to another prosecution under the Revised Penal Code or any Special Penal Laws

3. Human Security Act of 2007 (RA 9372)

SEC. 24. No Torture or Coercion in Investigation and Interrogation. - No threat, intimidation, or coercion, and no act which will inflict any form of physical pain or torment, or mental, moral, or psychological pressure, on the detained person, which shall vitiate his freewill, shall be employed in his investigation and interrogation for the crime of terrorism or the crime of conspiracy to commit terrorism; otherwise, the evidence obtained from said detained person resulting from such threat, intimidation, or coercion, or from such inflicted physical pain or torment, or mental, moral, or psychological pressure, shall be, in its entirety, absolutely not admissible and usable as evidence in any judicial, quasijudicial, legislative, or administrative investigation, inquiry, proceeding, or hearing.

SEC. 25. Penalty for Threat, Intimidation, Coercion, or Torture in the Investigation and Interrogation of a Detained Person. - Any person or persons who use threat, intimidation, or coercion, or who inflict physical pain or torment, or mental, moral, or psychological pressure, which shall vitiate the free-will of a charged or suspected person under investigation and interrogation for the crime of terrorism or the crime of conspiracy to commit terrorism shall be guilty of an offense and shall suffer the penalty of twelve (12) years and one day to twenty (20) years of imprisonment. When death or serious permanent disability of said detained person occurs as a consequence of the use of such threat, intimidation, or coercion, or as a consequence of the infliction on him of such physical pain or torment, or as a consequence of the infliction on him of such mental, moral, or psychological pressure, the penalty shall be twelve (12) years and one day to twenty (20) years of imprisonment.

3. Human Security Act of 2007 (RA 9372)

SEC. 49. Prosecution Under This Act Shall be a Bar to Another Prosecution under the Revised Penal Code or any Special Penal Laws. - When a person has been prosecuted under a provision of this Act, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for any offense or felony which is necessarily included in the offense charged under this Act.

4. Juvenile Justice and Welfare Act of 2006 (Republic Act No. 9344):
Notes: - RA 9344 also prohibits Torture against children (Section 5a) - Penalty in Anti-Torture is higher than RA 9344, so penalty in anti-torture will be imposed. - SEC. 5. Rights of the Child in Conflict with the Law. - Every child in conflict with the law shall have the following rights, including but not limited to: (a) the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment;

4. Juvenile Justice and Welfare Act of 2006 (Republic Act No. 9344):
SEC. 62. Violation of the Provisions of this Act or Rules or Regulations in General. - Any person who violates any provision of this Act or any rule or regulation promulgated in accordance thereof shall, upon conviction for each act or omission, be punished by a fine of not less than Twenty thousand pesos (P20,000.00) but not more than Fifty thousand pesos (P50,000.00) or suffer imprisonment of not less than eight (8) years but not more than ten (10) years, or both such fine and imprisonment at the discretion of the court, unless a higher penalty is provided for in the Revised Penal Code or special laws. If the offender is a public officer or employee, he/she shall, in addition to such fine and/or imprisonment, be held administratively liable and shall suffer the penalty of perpetual absolute disqualification.

5. R.A. 9851 Crimes against International Humanitarian Law, Genocide and other crimes against Humanity
Torture is punishable in RA 9851:
Section 4. War Crimes
In international armed conflict torture or inhuman treatment including biological experiments In non-international armed conflict violence to another person, in particular willful killings, mutilation, cruel treatment and torture

Section 6. Other Crimes Against Humanity

RA 9745; Anti-Torture
Definition an act by which severe pain or suffering, of Torture whether physical or mental, is intentionally inflicted on a person 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. It does not include pain or Buffering arising only from, inherent in or incidental to lawful sanctions.

RA 9851: Crimes against Humanity

the intentional infliction of severe pain or suffering, whether physical, mental, or psychological, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.

Source of definition

UN Convention against Torture (UNCAT)

1998 Rome Statute of the ICC

RA 9745; Anti-Torture
Purpose of the torture 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

RA 9851: Crimes against Humanity

No qualification as to the purpose of the torture but Torture must be part of a widespread or systematic attack directed against any civilian population

Perpetrator

State agent: Person in authority or agent of a person in authority

Non-state agents: an individual

Other notes:

Not just a criminal law but an international criminal, humanitarian and human rights law

Section 7. Penalties: Reclusion temporal in its medium to maximum period and a fine ranging from One hundred thousand pesos (Php 100,000.00) to Five hundred thousand pesos (Php 500,000.00).

When justified by the extreme gravity of the crime, especially where the commission of any of the crimes specified herein results in death or serious physical injury, or constitutes rape, and considering the individual circumstances of the accused, the penalty of reclusion perpetua and a fine ranging from Five hundred thousand pesos (Php 500,000.00) to One million pesos (Php 1,000,000.00) shall be imposed.