TABLE OF CONTENTS

I.

UNDERSTANDING HUMAN RIGHTS

II.

LINKAGES AMONG CHR, DOJ AND LAW ENFORCEMENT AGENCIES

III.

INVESTIGATION OF ENFORCED DISAPPEARANCE CASES

IV.

INVESTIGATION OF TORTURE AND OTHER CRUEL, INHUMAN OR

DEGRADING TREATMENT OR PUNISHMENT

V.

INVESTIGATION OF EXTRAJUDICIAL KILLINGS

VI.

PROCEDURES IN THE CRIMINAL PROSECUTION OF ENFORCED

DISAPPEARANCE, TORTURE, AND EXTRAJUDICIAL KILLING

VII.

WITNESS PROTECTION AND SECURITY

VIII.

VICTIM COMPENSATION PROGRAM AND OTHER ASSISTANCE TO

VICTIMS

IX.

APPENDICES
a.
b.
c.
d.
e.

R.A. No. 10353

R.A. No. 9745
Administrative Order No. 181, S. 2007
Administrative Order No. 35
Operational Guidelines of A.O. No. 35

CHAPTER I
UNDERSTANDING HUMAN RIGHTS
Human rights defined
The concept of human rights acknowledges that by nature human
rights are innate in every individual from birth by reason of ones dignity and
worth as a human being.1
Peoples of the world have their own
understanding and appreciation of human rights, hence, the several
definitions, but nonetheless connoting a common essence, i.e. upholding
fundamental respect for the dignity and worth of every human being. One
definition states that human rights are those universal legal guarantees
protecting individuals and groups against actions by governments which
interfere with fundamental freedoms and human dignity. 2 Some lawyers
take it as a term of art, a summation of all accepted national and
international human rights law.3 On the other hand, the Commission on
Human Rights of the Philippines defines human rights as the supreme,
inherent and inalienable rights to life, to dignity and to self-development. It
is the essence of these rights that makes man human.4
Rights holders and duty bearers
Every individual and groups of persons are rights holders. Human
rights laws are purposely crafted to ensure the protection of every individual,
as well as community of persons, particularly the vulnerable, marginalized
and disadvantaged, against abuse of power and inactions of the States which
interfere and/or hinder the realization and enjoyment by every one of their
fundamental freedoms and human rights. On the other hand, duty bearers
refer primarily to the State. The primary obligations to respect, protect and
fulfil the rights of the people rest on the State Government authorities and
their agents.
The Human Rights Principles
Human rights are generally characterized as inherent, fundamental,
inalienable,
imprescriptible, indivisible, universal and interdependent.
1 Article II, Section 12 of The 1987 Constitution of the Philippines provides that
(T)he State recognizes the sanctity of family life x x x. It shall equally protect the
life of the mother and the life of the unborn from conception. Likewise Art. 3(1) of
P.D. 603, otherwise known as The Child and Youth Welfare Code, provides that
(E)very child is endowed with the dignity and worth of a human being from the
moment of conception, x x x and has, therefore, the right to be born well.
2 United Nations Training on Human Rights Monitoring, Professional Training Series
No. 7.
3 A. Clapham. Human Rights: A Very Short Introduction (Oxford: Oxford University
Press, 2007), p. 1.
4CHR Flyer; The Legal Bases of Human Rights Work in the Philippines: A ReferenceGuide for CHR Personnel Involved in the Investigation and Legal Services (2001), p.
3.
2

Inherent in the sense that they are not granted by any person or authority;
they do not need any event for their existence. Fundamental because
without them the life and the dignity of man will be meaningless. Inalienable
because they cannot be rightfully taken away from a free individual.
Imprescriptible because they cannot be lost even by a long passage of time.
Man does not lose his rights even if he fails to use, assert or claim them or
even if he had been arbitrarily detained by the authorities. Indivisible
because they are not capable of being divided, and cannot be denied even
when other rights have already been enjoyed. Human rights are also
universal to all human beings irrespective of their origin, status or condition
or place where they live; they can be enforced without national border.
Human rights are interdependent because the fulfilment or exercise of one
cannot be had without the realization of the other. The respect of human
rights necessarily includes the realization of mans dignity 5 under whatever
circumstances, be it in times of peace or in times of emergency and armed
conflict, whether of international or internal character.
The International Human Rights Mechanisms
Engraved in the history of the world are the holocaust and the effects
of World Wars I and II, which heavily impacted on the fundamental freedoms
and human rights, particularly the right to life and the dignity and worth of
the human race. These brought to fore the organization of nations known as
the United Nations (UN),6 primarily, to ensure universal peace and the
protection and promotion of fundamental freedoms and human rights of the
peoples of the world without distinction as to race, sex, language, or religion
as expressly provided for in the UN Charter. 7 The first human rights
document promulgated by the UN General Assembly is the Universal
Declaration of Human Rights (UDHR) which guarantees the protection and
promotion of civil, political, economic, social and cultural rights.8
Thus, the establishment of the international human rights mechanisms
based on the Charter and the various UN human rights treaties subsequently
adopted and the creation of the corresponding committees and subcommittees, working groups, complaint procedures, and special reporting
procedures, among others. The Charter based bodies include the General
Assembly with Subsidiary organs such as the Human Rights Council 9 which
is the principal intergovernmental body responsible for human rights.

5 Coquia, Jorge R., Human Rights: An Introductory Course (2000), pp. 4-6.
6The UN Charter was signed on June 26, 1945, in San Francisco, U.S.A., at the
conclusion of the UN Conference on International Organization, and came into force
n October 24, 1945. The Statute of the International Court of Justice is an integral
part of the Charter. (UN Charter and Statute of the ICC (New York: United Nations,
Department of Public Information).
7 UN Charter, Preamble, Articles 1, 13.1, 55, 56.
8 The UDHR was adopted on December 10, 1948 pursuant to UN General Assembly
Resolution 217A(III). Note: The UDHR, the ICCPR and the IESCR are the three (3)
international UN instruments which comprise the International Bill of Human Rights.
3

At present, the Philippines is a State Party to eight (8) core human

rights treaties: (1) International Covenant on Civil and Political Rights (ICCPR)
and the corresponding Protocols; (2) International Covenant on Economic,
Social and Cultural Rights (ICESCR); (3) Convention on the Elimination of All
Forms of Racial Discrimination (CERD); (4) Convention on the Elimination of
All Forms of Discrimination Against Women (CEDAW); (5) Convention on the
Rights of the Child (CRC); (6) Convention on the Protection of the Rights of All
Migrant Workers and Members of their Families; (7) Convention Against
Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment,
and the Optional Protocol thereto; and (8) Convention on the Rights of
Persons with Disabilities. These treaties have the force of law in the country.
The Philippines has yet to sign and ratify another principal treaty, the
Convention on the Protection of All Persons from Enforced Disappearance.
This notwithstanding, it has enacted Republic Act No. 10353, otherwise
known as The Anti-Enforced Disappearance Act of 2012, which defines and
penalizes enforced disappearance as a crime in this jurisdiction, and provides
for other protection measures, including rehabilitation and restitution.10
The obligations of States Parties to respect, protect and fulfil the
human rights of all persons within their respective territory and jurisdiction
are founded on the pertinent provisions of the UN Charter, the various
international human rights treaty, resolutions and issuances, such as that
issued by the UN General Assembly. Being parties thereto, States Parties,
such as the Philippines, have committed themselves to, among others,
incorporate human rights in their fundamental law, as well as adopt
legislations, statutes and measures in accordance with international human
rights principles, norms and standards.
Complaints Procedures before the UN bodies11
A complaint procedure has been established to address consistent patterns
of gross and reliably attested violations of all human rights and all
fundamental freedoms occurring in any part of the world and under any
circumstances.12
There are Committees corresponding to international
human rights treaties where victims of human rights violations or groups
concerned can course their complaints against a State Party: (1) Human
Rights Committee, which is responsible to examine communications
9 The Human Rights Council was established pursuant to General Assembly resolution
60/251.
It replaced and assumed most mandates, mechanisms, functions and
responsibilities previously entrusted to the UN Commission on Human Rights. (cited in the
Handbook for Civil Society Working with UN Human Rights Programme, published by the
UN Office of the High Commissioner for Human Rights, New York, Geneva, 2008, p. 75. The
Human Rights Council Advisory Committee functions as the think-tank for the Council. (UN
Human Rights Council: Institution-Building (Annex to Resolution 5/1 of 18 June 2007), III. HRC
Advisory Committee.

10 The Implementing Rules and Regulations of R.A. 10353 was approved in February
2012.
11 UN Human Rights Council: Institution-Building (Annex to Resolution 5/1 of 18
June 2007), IV. Complaint Procedure.
12 Ibid., III.A.85.
4

pertaining to violations of any of the provision of the Covenant on Civil and

Political Rights; (2) Committee on Economic, Social and Cultural Rights, for
violations of the rights under the Covenant on Economic, Social and Cultural
Rights;13 (3) Committee on Racial Discrimination, for violations of any of the
rights under the Convention on the Elimination of Racial Discrimination; 14 (4)
Convention on the Elimination of All Forms of Discrimination Against
Women;15 (5) Committee on Torture, for violations of any of the rights
guaranteed under the Anti-Torture Convention;16 (6) Committee on Rights of
Children, for violations of any of the rights under the Convention on the
Rights of the Child; (7) Committee on Rights of Persons with Disabilities; 17 (8)
Committee on the Rights of Migrant Workers, for violations of the rights
protected under the Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families;18 and (9) Committee on Enforced
Disappearance.19
Thus, as a rule, victims or group of persons can avail of the remedies
under the Complaint Procedures before the UN bodies concerned, after
exhaustion of all available domestic remedies in the State where their rights
were violated. Concerned groups who represent the victims should have the
latters consent or can reasonably justify its representation in behalf of the
victims. Exhaustion of domestic remedies may be dispensed with if such
remedy would be ineffective or unreasonably prolonged.
Further, to be
admissible before the Committee concerned, the written communication
does not involve the same matter already examined or being examined
under other procedures of international investigation and settlement; it is not
politically motivated; there is no abuse of the right of submission; it is not
anonymous; it is not incompatible with Convention which guarantees the
particular rights claimed by the victims or group of persons to have been
violated by a State Party.
Once the Committee concerned has admitted or took cognizance of
the written communication, it will bring such communication to the attention
of the State Party concerned, for example, the Philippines, and require said
State Party to submit to the Committee within six (6) months from receipt
thereof, a written explanation clarifying the matter, as well as the remedies
13Optional Protocol to the International Covenant on Economic, Social and Cultural
Rights, Art. 2.
14 CERD, Art. 14.
15 Optional Protocol to the Convention on the Elimination of All Forms of
Discrimination Against Women, Art. 2.
16 Convention Against Torture, Art. 22.
17 Optional Protocol to the Convention on the Rights of Persons with Disabilities,
Art. 1.
18 Convention on the Rights of Migrant Workers, Art. 77.
19 Convention on the Protection of All Persons from Enforced Disappearance, Art.
30.
5

that it may have taken. The Committee shall consider communications in

the light of substantial written information provided by the individuals or
groups and the State Party regarding the matter. The Committees views
and recommendations shall thereafter be forwarded to the State Party and
the individual or group concerned.
In particular, a person or group of persons who claim that any of their
rights under the International Covenant on Civil and Political Rights (ICCPR)
was violated and who have exhausted all available domestic remedies may
submit a written communication to the Human Rights Committee (HRC)
which has jurisdiction over such communication. 20 Thus, complaint against
the Philippine Government for arbitrary deprivation of the right to life
(extrajudicial or extralegal killing) is within the competence of the UN-HRC as
the right to life is guaranteed under the ICCPR.
In cases of torture, the victims, after exhaustion of all domestic
remedies, can send a written communication to the Committee Against
Torture which has authority to examine such communication once admitted.21
As to cases involving violations of the right of the victims or group of
persons under Convention on the Protection of All Persons from Enforced
Disappearance, a request that a disappeared person should be sought and
found may be submitted to the Committee on Enforced Disappearance. The
Committee will consider the request as urgent if, among others, it is not
manifestly unfounded; does not constitute abuse of rights of request; it has
not yet been presented to the competent bodies of the State Party
concerned, such as those authorized to undertake investigations x x x; the
same matter is not yet being examined under another procedure of
international investigation or settlement of the same nature.22
The Philippine Human Rights Mechanism
The human rights mechanism in this jurisdiction is primarily comprised
of the laws, institution, other bodies and measure adopted, consistent with
international standards and the UN human rights system to ensure the
protection and promotion of rights of all persons. The establishment and
operationalization of the Commission on Human Rights as an independent
national human rights institution23 may serve as an effective means to
address human rights violations committed against inhabitants of the
country, as well as Filipinos abroad. 24 This is consistent with the Philippines
commitment under the treaties to incorporate human rights in the
20 Optional Protocol to the ICCPR, Art. 2.
21 Convention Against Torture, Art. 22(1)
22 Convention on the Protection of All Persons from Enforced Disappearance, Art.
30.
23 1987 Constitution of the Philippines, Article XIII, Section 17.
24 Ibid., Art. XIII, Sec. 18(1); UN Human Rights Council: Institution-Building (Annex
to Resolution 5/1 of 18 June 2007), IV. B. 88.
6

fundamental law,25 legislations and other policy and programme measures.

The Bill of Rights provision in the Constitution is considered a direct
translation of the International Covenant on Civil and Political Rights.
Human rights investigation goes beyond criminal investigation, as it also
looks into the aspect of Governments compliance or non-compliance with its
obligations to respect, to protect and to fulfil rights as embodied in the
applicable treaties to which the Philippines is a Party.
CHR Complaint Procedures
Pursuant to its Constitutional mandate, the CHR shall investigate, on its
own or on complaint of any person, all forms of human rights violations
involving civil and political rights.
It shall also pursue investigative
monitoring of the economic, social and cultural rights situations of
vulnerable, marginalized and disadvantaged sectors, in particular.
Thus, any person or group of persons who are victims of human rights
violations can file their complaint with the CHR thru its Regional Office or
Sub-Office within whose area of responsibility the violations occurred or are
taking place. Concerned individuals or groups, such as relatives of the
victims or non-government organization or any government entity can
institute a complaint on behalf of the victims or refer the matter to the CHR
for investigation.26 The CHR shall motu proprio investigate anonymous
complaints or reports received which, upon initial evaluation and verification
appears to be meritorious or has some factual basis.27
Complaints for human rights violations or request for assistance can
also be coursed thru the Barangay Human Rights Action Center (BHRAC).
The Barangay Human Rights Action Officer (BHRAO) shall immediately refer
the matter to the nearest CHR regional or sub-office for appropriate action.
Finally, identification of sectoral conditions for investigation and monitoring
or inquiry, which are generally initiated at the CHR regional level, based on
reported violations of sectoral rights, or in accordance with a sectoral
prioritization schedule prepared for the purpose, or when issues on
economic, social and cultural rights surfaced in the course of investigation of
cases involving civil and political rights.
All complaints, reports and requests for assistance shall be properly
docketed/recorded. Investigation proper shall ensue if the matter falls within
the jurisdiction of the CHR. If the matter is within the primary responsibility
of other agency, the same shall be indorsed or referred to the latter for
immediate appropriate action.
Cases or issues involving human rights shall be determined on the
merits based on the information/evidence provided by the complainant,
those gathered by the CHR Investigator in the course of fact-finding
investigation, and information/evidence submitted by the respondent, vis-a25 1987 Constitution, Article II, Section 2 (the doctrine of incorporation).
26 Guidelines and Procedures in the Investigation and Monitoring of Human Rights
Violations and Abuses, and the Provision of CHR Assistance, Rule 4, Section 2.
27 Ibid., Section 4.
7

vis applicable international human rights standards and jurisprudence, as

well as relevant domestic laws and jurisprudence. The findings of probable
cause for human rights violations based on substantial evidence shall be
contained in a Resolution prepared by a lawyer, and reviewed and duly
approved by the Regional Director. Dismissal of complaints or reports duly
investigated shall also be covered by a resolution. Any party aggrieved by
the decision of the CHR Regional Office may file a Motion for Reconsideration
(MR) with said regional office, within fifteen days from receipt of a copy
thereof. If the regional office denies/dismisses the Motion, the recourse of
the aggrieved party is to appeal his case before the Commission en Banc.
Findings of human rights violations shall be indorsed to competent
authorities
to file the corresponding criminal charges, institute
administrative sanctions, and civil action for damages against State
authorities/personnel involved in the violations; and for Government to
consider appropriate legislative, administrative and policy reforms.
To facilitate a more expeditious and comprehensive investigation and
ensure access to justice to victims and their families, the CHR has
established linkages with other government agencies, such as, the
Department of Justice, the law enforcement and security sectors, civil society
and non-government organizations working for the cause of human rights
and justice.
Other Principal Agencies Mandated to
Investigate Violations of Human Rights
Human rights concerns are not a monopoly of the CHR. All agencies of
the Government are imbued with the primary responsibility to ensure
Philippine Governments compliance with international treaty obligations to
respect, to protect and to fulfil rights of everyone in the country and of
Filipinos abroad.
Thus, anyone whose rights has been violated or in
imminent threat can seek assistance, including protection remedies from:
(1)The Department of Justice (DOJ), which is the principal agency of the
government responsible for the administration of the criminal justice system
in the country.
In light of serious human rights violations in the country, particularly
extrajudicial killings, torture and enforced disappearances, most of which
remain unresolved, the President issued Administrative Order No. 35, series
of 2012, aimed to institute mechanism to expeditiously prioritize the
investigation and prosecution of these serious human rights cases and
punish the perpetrators.
(2)Law Enforcement Agencies, i.e., the Philippine National Police has the
primary role to preserve the internal security, specifically the maintenance of
peace and order, thus, is reposed with the bounden duty to investigate
violations of rights.
Note that, the State has the duty to establish the proper environment
for people to enjoy their human rights. Patterns of human rights violations,
criminalities, and inactions or deficiencies of those in the service tasked to
ensure the protection and safety of the people hamper the realization of
rights.

(3)The Armed Forces of the Philippines plays a vital role in human rights
protection as it is the protector of the people and the defender of the
State.28

Role of Civil Society and Non-Governmental Organizations

The role of civil society and non-governmental organizations is indispensable
in the protection and promotion of human rights of the people in the country.
It is public knowledge that these organizations have been consistent, as well
as persistent, in the quest to bring justice to the victims of human rights
violations; particularly, those who were killed, tortured and disappeared in
the course of their strong opposition to the dictatorial regime. They monitor,
investigate and document human rights situations and violations; continue to
assist victims and their families search for justice; and provide sanctuaries to
victims, their families and witnesses as the situation requires.
Their actions and commitment to the cause of human rights are
founded on humanity and their sense of duty as citizens. It is basic that the
State encourages non-governmental, community-based, or sectoral
organizations that promote the welfare of the nation.29

28 1987 Constitution, Art. II, Sec. 3.

29 Ibid., Sec. 23.
9

CHAPTER II
LINKAGES AMONG THE CHR, DOJ, AND LAW ENFORCEMENT
AGENCIES
On April 16, 2012, the Commission on Human Rights (CHR) and the
Department of Justice (DOJ) entered into a Memorandum of Agreement
(MOA) to clarify ways through which the two institutions would work in
achieving a high level of operational capacity in the investigation and
prosecution of human rights cases. They agree that an efficient and effective
prosecution service and the protection of human rights are inextricably
linked, thus, evincing a firm commitment by the state to ensure
accountability in the face of human rights violations. The institutional
independence of the two institutions will be observed.
The forms of cooperation pertain to the following general framework:
capacity-build up; information sharing; and cooperative performance of
mandates.
Capacity Build-Up.-- The CHR and the DOJ shall ensure that
prosecutors at every operational level of the National Prosecution Service are
adequately trained and sufficiently capacitated to investigate and prosecute
human rights violation cases, including those referred to the latter by the
CHR. As such, there shall be a comprehensive and continuing program for
capacity build-up; and the development of a prosecutors guidebook on
human rights.30
Information-Sharing.-- Monitoring mechanisms shall be immediately
established. The MOA envisioned a Joint Monitoring Mechanism that shall be
composed of:
(a) The Secretary of Justice, or in his/her absence, a duly designated
Undersecretary;
(b)The Chairperson of the Commission on Human Rights or a duly
designated Commissioner;
(c) The Prosecutor-General of the National Prosecution Service, or a
duly designated Senior Deputy State Prosecutor, as his alternate;
(d)The Director of the CHR Legal and Investigation Office.
Both CHR and DOJ shall also set-up their internal monitoring
mechanisms to be directly supervised by the respective members of the joint
monitoring mechanism. The joint monitoring mechanism will provide an
avenue for regular information sharing and monitoring of human rights
cases. As such:
(a) The joint monitoring mechanism shall meet on a quarterly basis to
discuss issues of mutual concern;
(b)Agenda for each meeting will be agreed by the parties and finalized
one week before the date of the meeting, with any urgent matters
to be added by agreement thereafter. The assessment of the MOAs
implementation will be part of the agenda;
(c) Approved minutes of every meeting will be maintained.
30 The CHR and the DOJ, with the assistance of the University of the Philippines Law
Center Institute for the Administration of Justice (UP-IAJ), has developed this
Guidebook on the Investigation and Prosecution of Human Rights Violations.
10

Cooperative Performance of Mandates.In the performance of

their respective mandates, both the CHR and the DOJ shall work together to
ensure:
(a) an end to the climate of impunity;
(b)elimination of undue delays in disposition of human rights cases;
(c) close cooperation between investigating prosecutors and their CHR
counterparts in terms of case build-up and evidence gathering.
The MOA provides more specific commitments, to wit:
(1)Progressive increase of conviction efficiency rate for human rights
cases, particularly enforced disappearances, torture, and extrajudicial killings;
(2)Expedite processing by the DOJ of requests from the CHR for official
documents, information and other forms of assistance in relation to
investigative, assistance and visitorial activities of the CHR. The
corresponding guidelines shall be issued for this purpose.
(3)DOJ to establish a mechanism within its Witness Protection Program
(WPP) to expedite admission, resource prioritization and continuing
stay for victims, survivors and other persons referred to it by the
CHR. The corresponding guidelines to be developed shall include,
among others:
(a) the qualifications of witnesses who may be admitted, to justify
the prioritization scheme and expedited processing of admission
to WPP;
(b)the endorsing authority;
(c) acceptance and review procedures;
(d)terms and conditions for the witness to be retained in the
program;
(e) such other relevant matters.
Processes under Administrative Order No. 35 Structures
Administrative Order (A.O.) No. 181, s. 2007, issued by the President of
the Philippines defines the relationship between the Department of Justice
(DOJ) and law enforcement agencies with respect to the investigation and
prosecution of political and media killings - extra-judicial killings.
Pursuant thereto, the Philippine National Police and the National
Bureau of Investigation shall cooperate with the National Prosecution Service
(NPS) of the DOJ by consulting with the latter at all stages of the criminal
investigation and prosecution, including making available law enforcement
personnel to testify, gather and submit evidence as required.
On the other hand, the NPS shall assign a public prosecutor who shall
handle or assist, all throughout, in the criminal prosecution of cases involving
political killing, except in the conduct of the preliminary investigation
thereof.
The A.O. 35 Operational Guidelines proceeds from the Joint Department
Order No. 003-2012 which sets out the cooperative mechanisms between
11

prosecutors and law enforcers in cases of political and media killings. This
Joint Department Order was drafted and validated by prosecutors and law
enforcers through workshops across the country.
Cognizant that the A.O. 181, s. 2007, only pertain to media and
political killings, the DOJ is strategically identifying other possible modalities
within which to further institutionalize the marriage between investigation
and prosecution at the level of evidence-gathering. That is why the A.O. 35
Operational Guidelines expands the application of the composite team
approach to include crimes or offenses of extrajudicial killings, enforced
disappearance, torture and all forms of violations to the right to life, liberty
and security of persons.
For purposes of operationalization and implementation of A.O. 35, the
extralegal killings (ELK) or extrajudicial killings (EJK) shall refer to killings
wherein the victim was a member of, or affiliated with an organization, to
include political, environmental, agrarian, labor or similar causes or is an
advocate of above-named causes; and that the victim was targeted and
killed by state or non-state agents because of the actual or perceived
membership, advocacy, or profession. Moreover, A.O. 35 puts particular
attention to unsolved high profile cases under the past administration,
directing the Committee to prioritize these and assign special investigation
teams to conduct further investigation.
These Guidelines are also important tools in training the composite
teams of investigators and prosecutors all over the country to take a more
pro-active approach at the investigation level to ensure successful
prosecution and higher conviction rate on cases involving serious human
rights violations.
Salient features and investigative procedures of A.O. No. 35
Guidelines:
Investigation Stage.-- The investigation of A.O. No. 35 cases 31 by
Special Investigation Teams (SITs) will benefit from the Composite Team
Approach, which refers to the strategy or scheme mandated under said A.O.
where prosecutors and investigators collaborate, cooperate and coordinate in
the investigation and build-up of A.O. 35 cases.
Evaluation by Special Oversight Teams (SOT).-- A significant
feature of A.O. 35 is the provision on Special Oversight Teams (SOT) which
shall supervise and oversee the efforts of the Special Investigation Teams
(SITs). There shall be an SOT for unsolved cases, and another SOT for
new/existing cases.

31Cases under the ambit of A.O. No. 35 fall into three classifications, namely, unsolved
cases, new cases and existing or current cases. Unsolved cases are incidents that were
previously investigated by law enforcement agencies prior to the issuance of A.O. No. 35
but where no complaint for preliminary investigation was filed due to lack of sufficient
evidence. New Cases are incidents that occurred after its effectivity (on 22 November
2012). Existing or current cases refer to cases that are being investigated or re-investigated
by law enforcement officers per order of the court, undergoing preliminary investigation, or
is already pending in court (active or archived as of the effectivity of A.O. No. 35. The TWG
shall identify existing/current cases that may possibly fall within the ambit of A.O. No. 35.

12

Preliminary Investigation.-- Upon receipt of the complaint, the

Prosecutor General, or City or Provincial Prosecutor shall immediately assign
the complaint to an investigating prosecutor.32
There shall be a prescribed duration for Preliminary Investigation and
resolution thereof; and no reply or rejoinder shall be entertained, nor motions
for extensions be allowed.
Trial.-- Once the case is raffled to the proper court, the trial prosecutor
shall immediately coordinate with the SIT which investigated and built-up the
case.
As far as practicable, the Prosecutor General, City or Provincial
Prosecutor shall create a special panel of prosecutors composed of the A.O.
35 prosecutor, investigating prosecutor and trial prosecutor for the purpose
of handling the actual prosecution of the A.O. 35 Case.
The SOT (for New/Existing Cases) shall have the authority to supervise
the SIT (for new cases) in the handling and management of all A.O. 35 cases
on trial to include recommendation of trial strategies, review of court
pleadings, attendance in court trials, monitoring of case development and
conduct of case conferencing. The SOT shall also make a monthly report on
the status of all A.O. 35 cases to the IAC.
Other Relevant Provisions.-- The A.O. 35 Guidelines also provide for
the creation of Tracker Teams.
The Inter-Agency Committee (IAC) shall develop plans and programs as
well as support domestic and foreign programs in order to enhance and
strengthen relations of the IAC and its member-agencies with domestic and
international NGOs as well as other stakeholders. 33 It may seek and accept
the assistance of the NGOs, CSOs and other stakeholders in, among others,
obtaining relevant information, promoting grassroots advocacy and
strengthening the capacity of the A.O. 35 structures.34
The IAC, in the exercise of its oversight functions, may cause the
administrative investigation of the officers for alleged violations or
administrative offenses in connection with the implementation of these
Guidelines and pursuant to the Civil Service Rules and other pertinent
administrative discipline policies of concerned agencies.35
Finally, CHR and DOJ have also established linkages with the security sector
thru, among others, the AFP Human Rights Office

32 The prosecutor shall issue subpoena within two (2) days from his/her receipt of the assigned case and
require the respondent/s to submit their counter-affidavit within ten (10) days from receipt thereof.

33 Art. VII, Sec. 2 (g)

34 Art. IX, Sec. 3
35 Art. VIII
13

CHAPTER III
INVESTIGATIONOF ENFORCED DISAPPEARANCE CASES
The government is the chief duty holder in the protection and
promotion of human rights of the people, including the matter of order and
security. This prime duty carries with it the obligation to create the proper
environment for the realization of rights by everyone under Philippine
jurisdiction. The Constitutional guarantee of the rights to life, liberty and
security of person is rendered ineffective if government does not afford
protection to these rights especially when they are under threat. Protection
includes conducting effective investigations, organization of the government
apparatus to extend protection to victims of extralegal or enforced
disappearances (or threats thereof) and/or their families, and bringing
offenders to the bar of justice.36
The successful prosecution of an enforced disappearance case hinges
on the effective gathering of material evidence to pin down the perpetrators.
Unlike other crimes, however, disappearance cases present unique
evidentiary difficulties, mainly because of the fact that the State itself - the
party whose involvement is alleged - is the same party who investigates
enforced disappearances. Past experiences in other jurisdictions show that
these evidentiary difficulties are generally three-fold:
First, there may be a deliberate concealment of the identities of the
direct perpetrators. Experts note that abductors are usually well-organized,
armed and usually members of the military or police forces. In addition,
there are usually no witnesses to the crime; if there are, these witnesses are
afraid to speak out publicly or to testify on the disappearance out of fear for
their own lives.
Second, deliberate concealment of pertinent evidence of the
disappearance is a distinct possibility; the central piece of evidence in an
enforced disappearance - i.e. the corpus delicti or the victims body - is
usually concealed to effectively thwart the start of any investigation or the
progress of one that may have begun. The problem for the victims family is
the States virtual monopoly of access to pertinent evidence.
Third, is the element of denial; in many cases, the State authorities
intentionally deny that the enforced disappearance ever occurred.37
36Secretary of National Defense, et. al. v. Manalo, 568 SCRA 1, G.R. No. 180906, p. 57 (2008).
[Emphasis supplied]
14

Now, to guide the investigators in the gathering of evidence, and for

the prosecutors in determining probable cause of an enforced or involuntary
disappearance, it is helpful to consider the elements stated in the clear-cut
definition38 thereof under Section 4(b) of the Implementing Rules and
Regulations (IRR) of Republic Act No. 10353, also known as the AntiEnforced or Involuntary Disappearance Act of 2012 which states:
SECTION 4. Definitions. For purposes of this IRR, the
following terms shall be defined as:
xxxxxx

xxx

(b)
Enforced
or
involuntary
disappearance refers to an offense with the presence of
all the following elements:
1) the arrest, detention, abduction or any other form
of deprivation of liberty;
2) committed by agents of the State or by persons or
groups of persons acting with the authorization,
support or acquiescence of the State; and
3) followed by a refusal to acknowledge the
deprivation of liberty or by concealment of the
fate or whereabouts of the disappeared person,
which places such person outside the protection
of the law.
xxx

xxx

xxx

Elements of enforced disappearance; persons liable under R.A.

10353
Under this definition, the elements
disappearance are essentially four-fold:39

that

constitute

enforced

(a) arrest, detention, abduction or any form of deprivation of liberty;

37Razon v. Tagitis, 606 SCRA 598, G.R. No. 182498,pp. 686-688 (2009), citing IrumTaqi, Adjudicating
Disappearance Cases in Turkey, an Argument for Adopting the Inter-American Court of Human Rights
Approach, 24 Fordham Intl L.J. 940, 945-946 (2001).
38 R.A. 10353 has adopted the definition of enforced disappearance set forth under
the UN Declaration and the Convention on the Protection of All Persons Against
Enforced Disappearance which reads, thus: enforced disappearance is considered
to be the arrest, detention, abduction or any other form of deprivation of liberty by
agents of the State or by persons or groups of persons acting with the authorization,
support or acquiescence of the State, followed by a refusal to acknowledge the
deprivation of liberty or by concealment of the fate or whereabouts of the
disappeared person, which place such a person outside the protection of the law.
39Id. at 694, citing Susan McCrory, The International Convention for the Protection of All Persons from
Enforced Disappearance, 7 Hum. Rts. L. Rev. 545 (2007).
15

(b)carried out by agents of the State or persons or groups of persons

acting with the authorization, support or acquiescence of the State;
(c) followed by a refusal to acknowledge the detention, or a
concealment of the fate of the disappeared person; and
(d)placement of the disappeared person outside the protection of the
law.40
First, the offense of enforced disappearance starts with an arrest,
detention or abduction against the will of the victim. Note that the law does
not qualify whether the deprivation of liberty is legitimate or not, hence, the
protection of the victim from enforced disappearance must be effective upon
the act or moment of deprivation of liberty in whatever form it may take, and
is not limited to cases of illegitimate deprivations of liberty. 41 Also, the term
abduction should be construed in its generic sense and should not be
interpreted as the abduction described under Articles 342 and 343 of the
Revised Penal Code.42
Secondly, the definition of enforced disappearance under R.A. No.
10353 is State-centered, in the sense that it only admits State actors and
private individuals or groups of person who act with the authorization,
support or acquiescence of the State as probable perpetrators. Thus,
deprivations of liberty committed by private persons who act without the
States direct or indirect participation, and by terrorists and insurgents are
not covered by R.A. No. 10353.
This was illustrated in a recent Amparo case where the Supreme Court,
in finding for the petitioner security guards accused of abducting the
respondents husband, ruled that:
x xx for the protective writ of amparo [in relation
to enforced disappearance] to issue, allegation and
proof that the person subject thereof are missing are
not enough. It must also be shown and proved by
substantial evidence that the disappearance was
carried out by, or with the authorization, support or
acquiescence of, the State x xx followed by a refusal to
acknowledge the same or give information on the fate
or whereabouts of said missing person, with the
intention of removing them from the protection of the
40 But see para. 4, Document A/HRC/7/2, General Comment on the Definition of Enforced
Disappearance, where the UN Working Group concluded that any act of enforced disappearance has the
consequence of placing the persons subjected thereto outside the protection of the law and therefore
admitted cases of enforced disappearance without the need of demonstrating the perpetrators intention to
place the victim outside the protection of the law. Available athttp://www.ohchr.org. [accessed 27
November 2012]
41Id., para. 7.
42Article 342. Forcible abduction. The abduction of any woman against her will and with lewd designs shall be
punished by reclusion temporal. The same penalty shall be imposed in every case, if the female abducted be under
twelve years of age.
Article 343. Consented abduction. The abduction of a virgin over twelve and under eighteen years of age, carried
out with her consent and with lewd designs, shall be punished by the penalty of prisioncorreccional in its minimum
and medium periods.

16

law x xx. Simply put, the petitioner in an amparo case

has the burden of proving by substantial evidence the
indispensable element of government participation. x x
x This hallmark of State participation differentiates an
enforced disappearance case from an ordinary case of a
missing person.43
Third, the element of "deniability" is central to the policy of enforced
disappearances, as the absence of any proof of the disappearance makes it
easier to escape the application of legal standards which protect the victims
human rights. Experience shows that government officials typically respond
to requests for information about desaparecidos by saying that they are
either not aware of any disappearance, that the missing people may have
fled the country, or that their names have merely been invented.44
The element of denial can be proven by obtaining a copy of the written
Certification on the negative results of an inquiry into a reported disappeared
persons whereabouts as required under Section 8 of R.A. No. 10353 45 which
requires, among others, the response to the inquiry, specifically stating
whether or not the person disappeared is within any of the above-named
facility or the immediate premises thereof and that in the event that such
named person will later be brought into such facility or the immediate
premises thereof after an inquiry and response have been made, the
inquiring party shall be immediately notified through the most expedient
means of communication available.
Under the law, the authorities are required to either affirm or deny the
presence of the reported disappeared person within his or her facility or the
immediate premises thereof. Once the certifying officer gives a negative
response, i.e., when he or she disavows the presence of the reported
disappeared person, the element of denial immediately attaches. It should
also be noted that the certification is continuing as it includes an undertaking
from the same officer to inform the inquiring party should the reported
disappeared person is subsequently brought to the formers facility or
immediate premises thereof.
Finally, the law is very clear that the victim of enforced disappearance
is placed outside the protection of the law because his/her whereabouts
cannot be ascertained.
Guideposts for Investigators and Prosecutors
There are also some fundamental principles that the investigators and
prosecutors should be mindful of when dealing with cases of enforced
disappearance. These principles, which are found in various sections of R.A.
No. 10353, serve as guideposts for the prosecutor and to make sure that the
unique crime of enforced disappearance will be understood in the proper
context. The principles are as follows:
43Edgardo Naviaet. al. v. Virginia Pardico, G.R. No. 184467, 19 June 2012. (Emphasis supplied)
44Supra note 3 at 686, citing Juan E. Mendez & Jose Miguel Vivanco, Disappearances and the InterAmerican Court: Reflections on a Litigation Experience, 13 Hamline L. Rev. 507 (1990).
45Section 9, Implementing Rules and Regulations, R.A. No. 10353.
17

(1)The right against enforced disappearance is non-derogable.

This means that the right cannot be lawfully denied to any
person under any circumstance, not even by a state of war.46
(2)An Order of Battle is unlawful and can neither be used as a
justifying nor as an exempting circumstance. In fact, any
person receiving such an Order has the right to disobey it.47
(3)Any person deprived of liberty has the absolute right to
communicate with any person or organization of his choice to
make his or her condition and whereabouts known.48
(4)R.A. No. 10353
responsibility.49

recognizes

the

doctrine

of

command

(5)Liability under R.A. No. 10353 is separate and distinct from

the liability under R.A. No. 7438, 50 R.A. No. 974551 and the
Revised Penal Code provisions on Arbitrary Detention,
Kidnapping and Serious Illegal Detention.52
(6)The principle of double jeopardy under international law does
not apply in enforced disappearance cases.53
(7)The crime of enforced disappearance is a continuing offense. 54
(8)As a rule, the crime of enforced disappearance is an
imprescriptible offense.55
46Section 4, R.A. No. 10353; IRR, Section 5.
47Id., Section 5; IRR, Section 6.
48Id., Section 6; IRR, Section 7.
49Id., Section 14; IRR, Section 15.
50 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.
51Anti-Torture Act of 2009.
52Section 18, R.A. No. 10353; IRR, Section 19.
53Id. Section 19; IRR, Section 20.
54Id., Section 21: IRR, Section 22. For a more detailed discussion on this matter, see Report of the Working Group
on Enforced or Involuntary Disappearances, Document A/HRC/16/48 (2010) available at www.ohchr.org.
[Accessed on 27 November 2012]

55Section 22, R.A. No. 10353; IRR, Section 23.

18

(9)Persons who are charged with and/or guilty of the act of

enforced or involuntary disappearance cannot benefit from
any special amnesty law or other similar executive measures
that shall exempt them from any penal proceedings or
sanctions.56
(10) The principle of non-refouler applies. This mean that 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 enforced or
involuntary disappearance.57
Finally, there are instances when victims of enforced disappearance
are belatedly charged before the prosecutors with fabricated offenses in
order to justify their arrests. Because of this insidious practice, the antienforced disappearance law incorporates a special duty for prosecutors to
verify the nature of the arrests of persons presented for inquest or
preliminary investigation. The law states:
Any inquest or investigating public prosecutor, or
any judicial or quasi-judicial official or employee who learns
that the person delivered for inquest or preliminary
investigation or for any other judicial process is a victim of
enforced or involuntary disappearance shall have the duty
to immediately disclose the victims whereabouts to his or
her immediate family, relatives, lawyer/s or to a human
rights organization by the most expedient means.58
For this purpose, the inquest or investigating prosecutor is required to
ascertain from the respondent or the latters companion other than the
arresting officers, whether or not the respondent has already communicated
the fact of his or arrest and/or detention with his or her family or relatives,
lawyer, the CHR or any human rights organization and if so, the details of
such communication. If the prosecutor finds that the respondent is actually
a probable victim of enforced disappearance, the prosecutor is duty-bound to
so inform the respondents family, relatives, the CHR or any human rights
organization and disclose the respondents present whereabouts by
telephone call, text messaging or electronic mail.
These facts and details of the inquiry shall be included in the minutes
of proceedings of the prosecutor which shall then be signed by the
respondent, his or her companion and the arresting officer. 59 Note that failure
to comply with this requirement exposes the prosecutor to possible penal
liability.60
56Id., Section 23; IRR, Section 24.
57Id., Section 25; IRR, Section 26.
58Id. at Sec. 9.
59Section 10, IRR on R.A. No. 10353.
60Under Section 15(e), R.A. No. 10353.
19

International Standards on investigation and prosecution

of Enforced Disappearance cases
The Philippines has yet to sign and ratify the Convention on the Protection of
All Persons from Enforced Disappearance. Be that as it may, Government has
enacted R.A. 10353 which defines and penalizes enforced disappearance as
crime in this jurisdiction and adopted the international definition of enforced
disappearance under the UN Declaration, as well as the Convention on the
Protection of All Persons from Enforced Disappearance. Likewise, under the
doctrine of incorporation embodied in the fundamental law, the Philippines
has adopted the general principles of international law as part of the law of
the land. In this vein, in the investigation and prosecution of enforced
disappearance cases, human rights standards set forth in the Universal
Declaration of Human Rights and the International Covenant on Civil and
Political Rights should be considered.

20

CHAPTER IV
INVESTIGATION OF TORTURE AND OTHER CRUEL, INHUMAN OR
DEGRADING TREATMENT OR PUNISHMENT
There are three domestic laws which define and penalize torture as
crime in the Philippines: Republic Act No. 9372 also known as the Human
Security Act of 2007; Republic Act No. 9745, 61 otherwise known as the AntiTorture Act of 2009; and, Republic Act No. 9851, otherwise known as the
Philippine Act on Crimes Against International Humanitarian Law, Genocide,
and Other Crimes Against Humanity. The definition of torture under R.A. No.
9745 is based on the United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT).
On the
other hand, the definition of torture under R.A. No. 9851 is apparently lifted
from the Rome Statute of the International Criminal Court; while that
definition under R.A. No. 9372 is not clearly defined as that in R.A. 9745 and
9851.
Definition of torture under R.A. No. 9745
R.A. No. 9745 or the Anti-Torture Act of 2009 provides, thus, 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 suffering arising only from, inherent in or incidental
to lawful sanctions.62 This is also the definition of torture under the
UNCAT.63
In determining the existence of torture under R.A. No. 9745, the
following guideposts should be considered:
(1)The criminal acts involved.-- The law enumerated specific examples
of both physical torture and mental/psychological torture, by which
61 See: Annex B.
62 Sec. 3(a), R.A. No. 9745
63 UNCAT, Article 1(1): torture means any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person for such purposes
as obtaining from him or a third person information or confession, punishing him for
an act he or a third person has committed or is suspected of having committed, or
intimidating or coercing him 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 public official or other person
acting in an official capacity. It does not include pain or suffering arising only from,
inherent in or incidental to lawful sanctions. The Philippines ratified UN Convention Against
Torture (UNCAT) on June 18, 1986, and the Optional Protocol to the Convention against Torture on April
17, 2012.

21

severe pain or suffering is intentionally inflicted on the victim. The

infliction may also be by omission, such as food deprivation.
Physical torture is 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.
Mental/Psychological Torture refers to 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.
Investigators and prosecutors must bear in mind that torture
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.
Should the prosecutor finds probable cause to also prosecute
the respondent for other crimes as may be warranted by the
evidence he/she gathered during the investigation, appropriate
charges therefore should also be instituted against the respondent.
It must be noted that torture is a continuing offense, just like
rebellion, such that there are series of acts involved over a certain
period, and may be committed at different locations; and is also
considered a crime against all mankind. 64 Note, the principle of
universal jurisdiction embodied under Article 5 of the UNCAT.65
(2)Purpose of Torture.-- The acts of torture are done for the following
reasons:
(a) To obtain from the actual victim or a third person, other than the
actual victim, information or a confession;
64 Unlike most other unlawful conduct committed within a state which is left to each state to
prosecute, a person who is alleged to have committed torture can be prosecuted anywhere in the
world where he or she is found. The prohibition against torture therefore gives rise to what is called
universal jurisdiction. Torture is an international crime, and if an alleged perpetrator of torture in
one country is found in a second country, the authorities in the second country can prosecute such a
person even if the accused is not alleged to have tortured anyone outside of the first country. Universal
jurisdiction helps to enforce the absolute prohibition: because the ban is so important, it gives rise to
an exception to the usual rule of territorial jurisdiction whereby each state has the exclusive right to
deal with what has happened within its borders. This special rule, therefore, is that an alleged torturer
can be prosecuted wherever he/she is found unless such a person is extradited to face prosecution for
the torture in another country either where it took place or in a country more closely connected to
the event. A famous example is that of former dictator General Pinochet, arrested in Britain for torture
in Chile; he faced extradition to Spain for prosecution there as some of his victims were Spanish
citizens. A more recent case of the exercise of universal jurisdiction was the prosecution, conviction
and imprisonment in Britain of an Afghan warlord, Faryadi Zardad, for torture committed in
Afghanistan. He was resident in Britain, and no country had sought his extradition. [Ending Torture: A
Handbook for Public Officials, published by REDRESS, 2006]

65 UNCAT, Article 5, par. 2 provides that: Each State Party shall likewise take such
measures as may be necessary to establish its jurisdiction over such offenses in
cases where the alleged offender is present in any territory under its jurisdiction and
it does not extradite him pursuant to article 8 to any of the States mentioned in
paragraph I of this article.
22

(b)To punish the victim for an act he/she or a third person has
committed or is suspected of having committed; or
(c) To intimidate or coerce him/her or a third person; or
(d)For any reason based on discrimination of any kind.
This is an instance when the law specifically makes motive an
element of the crime. There must be probable cause that the
respondent harbored such reason/s in committing torture. The
criminal motives naturally manifest themselves in the acts of
torture.
In view of the disjunctive or, the four motives can be
considered separately from each other in the course of investigation
by the prosecutor.
The third and fourth motives of torture are broader in scope
than the first and the second, which apply to specific situations. The
first motive is clear that it applies in the case where the victim is
tortured because an information or confession is sought by the
torturer. The second motive shows that the victim is being punished
for an act, but not necessarily a criminal act. However, the third
motive speaks of intimidation or coercion in general, while the
fourth motive refers to discrimination of any kind without the law
defining the term discrimination.66
(3)Participation of Person in Authority or Agent of a Person in
Authority.-- 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.

66 It is worth mentioning that in interpreting or construing R.A. No. 9745, the principles
and standards as set forth in international conventions, one of which is the UNCAT, proves
useful. In fact, the United Nations Committee Against Torture, in General Comment No. 2:
Implementation of Article 2 by States Parties, 24 January 2008, CAT/C/GC/2, provides a clear
insight on what is within the scope of the term discrimination. It provides: The Committee
emphasizes that the discriminatory use of mental or physical violence or abuse is an
important factor in determining whether an act constitutes torture.The protection
of certain minority or marginalized individuals or populations especially at risk of torture is a
part of the obligation to prevent torture or ill-treatment. States parties must ensure that,
insofar as the obligations arising under the Convention are concerned, their laws are in
practice applied to all persons, regardless of race, colour, ethnicity, age, religious belief or
affiliation, political or other opinion, national or social origin, gender, sexual orientation,
transgender identity, mental or other disability, health status, economic or indigenous
status, reason for which the person is detained, including persons accused of political
offences or terrorist acts, asylum-seekers, refugees or others under international protection,
or any other status or adverse distinction. States parties should, therefore, ensure the
protection of members of groups especially at risk of being tortured, by fully prosecuting and
punishing all acts of violence and abuse against these individuals and ensuring
implementation of other positive measures of prevention and protection, including but not
limited to those outlined above. (Emphasis supplied)

23

In the third guidepost, the prosecutor should inquire on who

are the perpetrators of torture, who may be principals, accomplices,
or accessories.
R.A. No. 9745 is clear on the point that conspiracy can be
considered in its application. Torture can be committed by a private
person upon the instigation of or with the consent or acquiescence
of a person in authority or agent of a person in authority, provided
all other elements are present.
In the case of physical torture, the victim may not be under
the actual custody of the person in authority or the agent of a
person in authority for the latter to be charged with torture. A
private person in conspiracy with a person in authority or agent of a
person in authority can be the one having actual custody of the
victim.
R.A. No. 9745 does not qualify as to what kind of custody is
prescribed, hence, custody can be either actual or constructive.
(4)The Negative Element: Non-Existence of Lawful Sanctions.-- The
pain or suffering must not arise from, inherent in, or incidental to
lawful sanctions.
Stated otherwise, the elements of torture, based on R.A. No. 9745,
are as follows:
First, the commission of acts by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person. On the
basis of the first element, there are two main types of torture: physical
torture and mental/psychological torture.
Note, torture is mala in se
committed by dolo.
Second, the purpose of inflicting severe pain or suffering may be any
or all of the following:
(a) To obtain from the actual victim or a third person,
other than the actual victim, information or a
confession;
(b)To punish the victim for an act he/she or a third
person has committed or is suspected of having
committed; or
(c) To intimidate or coerce him/her or a third person;
or
(d)For any reason based on discrimination of any
kind.
Third, 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.
Fourth, it does not include pain or suffering arising only from, inherent
in or incidental to lawful sanctions.
24

Persons Criminally Liable for Torture and their

Degree of Criminal Participation
Under R.A. No. 9745, perpetrators of torture are categorized as Principals,
Accomplices, and Accessories:
(1)Principals may be by direct participation, by inducement, or
by indispensable cooperation. R.A. No. 9745 particularly
describes two classes of principals, to wit:
(a) A superior military, police or law enforcement officer or senior
government official who issued an order to commit torture for
whatever purpose;
(b)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 shall be liable, for any act or omission,
or negligence committed by him/her that shall have led,
assisted, abetted or allowed, whether directly or indirectly, the
commission thereof by his/her subordinates, if the following
elements are present:
i. 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 has knowledge of or, owing to the
circumstances at the time, should have known that
the act 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;
ii. Despite
such
knowledge,
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 did not take
preventive or corrective action either before, during
or immediately after its commission;
iii. 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 has the authority to prevent or investigate
allegations of torture or other cruel, inhuman and
degrading treatment or punishment
iv. The failure to prevent or investigate allegations of
such act, whether deliberately or due to negligence
of 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

25

(2)Accomplice Any person who, not being included within the

description in number 1 above, cooperate in the execution of
torture by previous or simultaneous acts.
(3)Accessories Any public officer or employee who has knowledge
that torture 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:
i. By themselves profiting from or assisting the offender to profit
from the effects of the act of torture;
ii. By concealing the act of torture and/or destroying the effects or
instruments thereof in order to prevent its discovery; or
iii. By harboring, concealing or assisting in the escape of the
principal/s in the act of torture; provided that the accessory acts
are done with the abuse of the officials public functions.
Other Acts Penalized under the Anti-Torture Act of 2009
There are three other criminal acts penalized under R.A. No. 9745, to
wit:
(1)Other cruel, inhuman and degrading treatment or punishment, also
known as ILL-TREATMENT;
(2)Establishing, operating, and maintaining secret detention places
and/or effect or cause to effect solitary confinement,
incommunicado or other similar forms of prohibited detention as
provided in Section 7 of this Act where torture may be carried out
with impunity; and
(3)Responsible officers or personnel of the AFP, the PNP and other law
enforcement agencies shall be criminally liable for failure 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 R.A. No. 9745.
Acts of Ill-treatment
The elements of Other Cruel, Inhuman and Degrading Treatment or
Punishment (or ILL-TREATMENT67) are:
67 The Manual entitled Monitoring And Investigating Torture, Cruel, Inhuman, Or Degrading
Treatment And Prison Conditions, published in 2000 by Amnesty International and Council for
the Development of Social Science Research in Africa, provides examples of ill-treatment
which can serve as guide for investigators and prosecutors, to wit: (1) deliberate measures
to cause suffering, such as confinement in a dark punishment cell; (2) punishments which
damage the mental or physical health of the prisoner; (3) the use of chains or irons either as
punishment or as a means of restraint; (4) the use of handcuffs, shackles, leg-irons and
straitjackets as a punishment; (5) solitary confinement for prolonged periods; (6) painful
measures in which suffering may not be the object, such as the use of manacles as a
restraint; (7) bad prison conditions, such as overcrowded cells, lack of water, poor hygiene
and sanitary conditions, etc. (8) neglectful treatment, such as denial of food or denial of
medical treatment; and (9) all forms of corporal punishment.

26

First, deliberate and aggravated treatment or punishment NOT

enumerated under Section 4 of R.A No. 9745.
Second, treatment or punishment is inflicted by a person in authority
or agent of a person in authority against another person in custody. Under
this situation, the offender in ill-treatment may also be a private person in
conspiracy with a person in authority or an agent of a person in authority.
Further, just like in torture, custody under ill-treatment is either actual or
constructive.
Third, the treatment or punishment attains a level of severity sufficient
to cause suffering, gross humiliation or debasement to the victim. Under this
element, 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.
Torture distinguished from ill-treatment
Torture can be distinguished from other cruel, inhuman and degrading
treatment or punishment as follows:
As regards modus, both torture and ill-treatment cannot be committed
by culpa.
As to stage of execution, both torture and ill-treatment are formal
crimes. Both cannot be committed in the attempted or frustrated stage. The
law penalizes the consequence and not the stage of execution. The gravity of
the torture or ill-treatment can only be ascertained when it is consummated.
As to acts involved, R.A. No. 9745 provides specific acts of torture in
Section 4 thereof, albeit not exclusive. Ill-treatment must not fall under any
of the specific acts in Section 4.
As to purpose or result of the offense, the torturer intends to obtain
from the victim or a third person information or a confession; to punish the
victim for an act he/she or a third person has committed or is suspected of
having committed; or to intimidate or coerce him/her or a third person; or for
any reason based on discrimination of any kind. On the other hand, there is
ill-treatment if the level of severity results to suffering, gross humiliation, or
debasement of the victim. Where none of the four purposes of torture were
proven, the crime would be ill-treatment.
As to degree of the offense, ill-treatment is not as severe or
aggravated as that of torture. However, the law requires that ill-treatment
pertains to treatment or punishment that attains a level of severity sufficient
to cause suffering, gross humiliation or debasement to the victim.
As to the proper offense to charge, in case the victim shall have been
ill or incapacitated for labor for thirty (30) days or less, the respondent will
be charged for torture. If the victim never became ill or incapacitated for
labor, the proper charge will be ill-treatment.

27

As to penalties imposable, R.A. No. 9745 made a fine distinction

between torture and ill-treatment by providing different sets of penalties
therefor. Torture is punishable based on the severity of the effects on the
individual and such penalties range from prision correccional, minimum
period, to reclusion perpetua. Ill-treatment is punishable by arresto mayor (1
month, 1 day to 6 months).
In practice, the definitional threshold between ill-treatment and torture
is often not clear. Experience demonstrates that the conditions that give rise
to ill-treatment frequently facilitate torture and therefore the measures
required to prevent torture must be applied to prevent ill-treatment. Thus,
the prohibition of ill-treatment is considered to be likewise non-derogable
under the UNCAT and its prevention to be an effective and non-derogable
measure. 68
Underlying Principles Recognized
in the Anti-Torture Act of 2009
It is the policy of the State to ensure that the human rights of all
persons, including suspects, detainees and prisoners are respected at all
times; and that no person placed under investigation or held in custody of
any person in authority or, agent of a person authority shall be subjected to
physical, psychological or mental harm, force, violence, threat or intimidation
or any act that impairs his/her free will or in any manner demeans or
degrades human dignity.69
Thus, in the course of the investigation and prosecution, it is important
that to incorporate specific principles on torture derived from international
standards, more particularly the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (UNCAT), which are now
enshrined in R.A. No. 9745, as follows:
(a) The crime of torture is always a separate and independent
crime.70
(b)The crime of torture is an imprescriptible offense.71
Note that, the Implementing Rules and Regulations of R.A. No. 9745
state that the statute of limitation or prescription period shall not
apply to torture cases. R.A. No. 9745 makes no mention of a similar
provision.
(c) Applicability of the Exclusionary Rule72. -- Any confession,
admission or statement obtained as a result of torture shall be
68UNCAT General Comment No. 2. states that
69 R.A. 9745, Sec. 2 (b).
70R.A. 9745, Sec. 15; Implementing Rules and Regulations, Sec. 30.
71 R.A. 9745, Implementing Rules and Regulations, Sec. 45.
72 R.A. 9745, Sec. 8; IRR, Sec. 14.
28

inadmissible in evidence in any proceedings, except if the same

is used as evidence against a person or persons accused of
committing torture.
(d)Absolute freedom from being subjected to torture and illtreatment.73 -- Torture and ill-treatment as criminal acts shall
apply to all circumstances. The right to be free from torture and
ill-treatment is non-derogable. The following situations cannot
serve as excuses/justifications for torture and ill-treatment, to
wit:
i.
ii.
iii.
iv.

A state of war or a threat of war;

internal political instability;
any other public emergency;
a document or any determination comprising an "order
of battle"

Of significance, the protection applies to persons or

organizations whose names appear in an order of battle and
considered enemies of the state, which the security forces deem
as legitimate combatants. R.A. No. 9745 mandates that even if an
individual is considered or alleged as an enemy of the state, he/she
should not be subjected to torture.
(e) Persons who committed torture cannot avail Amnesty Law. 74 -Torture as a crime must not be depreciated. International Law
treats torture as a crime against humanity and the torturer an
enemy of mankind. Thus, torturers 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.
(f) Applicability of Refouler.75 -- The CHR, DOJ, and the DFA are the
main agencies tasked under R.A. No. 9745 to ensure that no
person shall be expelled, returned or extradited to another state
if there are substantial grounds to believe that such person shall
be in danger of being subjected to torture. These line agencies
must take into account all relevant considerations including the
existence in the requesting state of consistent pattern of gross,
flagrant or mass violations of human rights.
Torture under R.A. No. 9851, or the
Philippine
Act
on
Crimes
Against
International
Humanitarian
Law,
Genocide, and Other Crimes Against
Humanity
R.A. No. 9851 applies in the following situations:

73R.A. 9745, Sec. 6; IRR, Sec. 8.

74Id., Sec. 16, IRR, Sec. 31.
75R.A. 9745, Sec. 17; IRR, Sec. 32.
29

(1) During armed conflict, which may either be international

(i.e., at least two states are involved, including belligerent
occupation) or non-international in character (i.e., restricted
to the territory of a single State, involving either regular
armed forces fighting groups of armed dissidents, or armed
groups fighting each other). This situation gives rise to war
crimes;
(2)

In cases of genocide; and

(3)During a widespread or systematic attack directed against

any civilian population, which gives rise to crimes against
humanity. Here, there is a state or organizational (non-state)
policy to conduct multiple commissions of acts against
civilian population, regardless of an armed conflict.
It is on the bases of the above circumstances whereby torture is
penalized under R.A. No. 9851. Pursuant to said law, torture is categorized
both as war crime and other crimes against humanity, and is defined as
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.
Torture under R.A. No. 9851 differs from the torture penalized under
R.A. No. 9745 because: first, R.A. No. 9851 does not provide for purposes of
the torture, so as to limit the application of the term to those expressly
stated; and second, the instigation, the consent or the acquiescence of a
person in authority or agent of a person in authority is not an element,
hence, non-state actors can be charged as perpetrators, regardless of state
authoritys instigation, consent or acquiescence.
Torture under R.A. No. 9372,
or the Human Security Act
of 2007
R.A. No. 9372 penalizes torture pursuant to Sections 24 and 25, which
provide:
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.
Coercion,

25. Penalty
or Torture

for
Threat,
Intimidation,
in the Investigation and
30

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.
Role of the Prosecutors in Combating Torture
Both international and domestic procedural rules have placed
prosecutors at a strategically important situation to combat torture, more
particularly during the conduct of inquest and/or preliminary investigation.
The prosecutor must ensure that a criminal suspect has not been subjected
to torture or ill treatment in the first instance.
Complementary to local standards is the Guidelines on the Role of
Prosecutors adopted in the Eight United Nations Congress on the Prevention
of Crime and Treatment of Offenders, which was held at Havana, Cuba from
August 27 to September 7, 1990, which provides, among others, that:
Guideline No. 15. Prosecutors shall give due attention
to the prosecution of crimes committed by public
officials, particularly corruption, abuse of power,
grave violations of human rights and other crimes
recognized by international law and, where authorized
by law or consistent with local practice, the investigation of
such offences.
Guideline No. 16. When prosecutors come into possession
of evidence against suspects that they know or believe on
reasonable grounds was obtained through recourse to
unlawful methods, which constitute a grave violation of
the suspect's human rights, especially involving
torture or cruel, inhuman or degrading treatment or
punishment, or other abuses of human rights, they
shall refuse to use such evidence against anyone other
than those who used such methods, or inform the Court
accordingly, and shall take all necessary steps to ensure
that those responsible for using such methods are brought
to justice. (Emphasis supplied)

31

Also, the Istanbul Protocol76 prescribes guides as to the areas which

must be investigated in relation to torture cases, to wit:
(a) the circumstances leading up to the torture;
(b)the approximate dates and times when the torture occurred;
(c) detailed physical descriptions about the people involved in
the arrest, detention and torture;
(d)the contents of what was asked of or told to the victim;
(e) a description of the usual routine in the place of detention;
(f) details about the methods of torture and/or ill-treatment
used;
(g)any instances of sexual assault;
(h)resulting physical injuries;
(i) weapons or physical objects used; and
(j) the identity of any witnesses.
Finally, it is advisable that prosecutors also ensure that international
best practices in the proper conduct of interrogation of criminal
suspects/detainees are observed.77

76 Manual on the Effective Investigation and Documentation of Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, which the United Nations General
Assembly and the UN Human Rights Council endorsed to states to reflect upon as useful tool
in addressing torture, since 1999.
77 As expounded by the European Committee on the Prevention of Torture, CPT/Inf/E(2002)
1, pp. 10-16, pars. 33-50; and the Special Rapporteur on Torture (UN Doc.A 56/156, July
2001, par. 39., summarized as follows: (1) Interrogation should take place only at official
centers and any evidence obtained from a detainee in an unofficial place of detention and
not confirmed by the detainee during interrogation at official locations should not be
admitted as evidence in court against the detainee; (2) The detainee should have the right
to have a lawyer present during any interrogation; (3) At the outset of each interrogation,
the detainee should be informed of the identity (name and/or serial number) of all persons
present; (4) The identity of all persons present should be noted in a permanent record which
details the time at which interrogations start and end and any request made by the detainee
during the interrogation; (5) The detainee should be informed of the permissible length of an
interrogation; the procedure for rest periods between interviews and breaks during an
interrogation, places in which interrogations may take place; and whether the detainee may
be required to stand while being questioned. All such procedures should be laid down by law
or regulation and be strictly adhered to;
(6) Blindfolding or hooding should be forbidden as
they can render the subject vulnerable, involve sensory deprivation and may themselves
amount to torture or ill-treatment. They may also make prosecutions virtually impossible as
it will be more difficult to identify the perpetrators; (7) All interrogation sessions should be
recorded or transcribed and the detainee or, when provided by law, his or her counsel should
have access to these records; (8) The authorities should have and should regularly review
procedures governing the questioning of persons who are under the influence of drugs,
alcohol or medicine or who are in a state of shock; (9) The situation of particularly vulnerable
persons (for example, women, juveniles and people with mental health problems) should be
the subject of specific safeguards.

32

CHAPTER V
INVESTIGATION OF EXTRAJUDICIAL KILLINGS
The right to life is inherent in every human being from birth. It is a supreme
right from which no derogation is permitted even in times of public
emergency which threatens the life of the nation, 78 thus, State Parties to
international instruments upholding the right to life of a person must ensure
that appropriate measures are in place in its jurisdiction to prevent and
punish arbitrary deprivation of life or so-called extra-judicial or extralegal
killings committed by government authorities, such as, members of the
security and law enforcement forces and even by non-state actors. The
deprivation of life by the authorities of the State is a matter of the utmost
gravity;79 and everyone has the right to an effective remedy by the
competent national tribunals for acts violating the fundamental rights
granted him by the constitution or by law.80
There is no law yet in the Philippines which defines and penalizes the act of
extrajudicial or extra-legal killing as a criminal offense in this jurisdiction,
notwithstanding that this is a serious form of human rights violation under
international standards to which the Philippines is a State Party.81 Be that as
it may, for purposes of punishment of the perpetrator of the act of
deprivation of life or extrajudicial/extra-legal killing, the provision on
murder82 and homicide83 under the Revised Penal Code may be applied.
Arbitrary deprivation of life or extra-judicial killings
The
international
law definition
of
extra-judicial
execution
encompasses any killing by Government forces as well as killings by any
other groups or individuals which the Government fails to investigate,
prosecute and punish when it is in a position to do so.84

78 Para. 1, General Comment No. 6, Article 6, ICCPR: The right to life, 1982.
79 Para. 3, Ibid.
80 Ibid, Art. 8.
81 UDHR, Art. 3; ICCPR, Art. 6(1) provides that: Every human being has the inherent right to
life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

82 Revised Penal Code, Art. 248.

83 Ibid., Art.249.
33

Extra-judicial killing is also defined as a deliberated killing not

authorized by a previous judgment pronounced by a regularly constituted
court affording all the judicial guarantees, which are recognized as
indispensable by civilized peoples.85
Extra-Judicial killing is an arbitrary deprivation of life. It constitutes
violations of human rights and humanitarian law:
1. When they are murders directly committed by or condoned
by the State authorities, i.e., when they have the following
characteristics:
a. killings take place at the order of or with the complicity or
acquiescence of the authorities;
b. killings are deliberate;
c. killings are unlawful
2. When parties to a conflict violated the laws of war
prohibiting killing of unarmed individuals or prisoners of war:
a. deliberate killing of prisoners of war; or
b. deliberate or indiscriminate killing of civilians
3. When committed by armed opposition groups in violation of
international norms prohibiting the arbitrary deprivation of
life:
a.
killings are deliberate;
b. they contravene even minimum standards of human behavior
applicable to governments and armed opposition alike;
c. committed on the authority of a political entity or with its
acquiescence.
As such, the elements of extra-judicial killing, as culled from human
rights literatures, are:
1. The victims right to life is violated, through the taking of
the victims life;
2. The absence of due process in the taking of the victims
life; and
3.

State actors participation, whether aggressive or passive

(tolerance).

Forms of Extra-Judicial Killings

84 Philip Alston. Report of the Special Rapporteur on extra-judicial, summary or
arbitrary executions, A/64/187, United Nations Human Rights Council available at
http://www.extra-judicialexecutions.org.
85 United States Torture Victim Protection Act of 1991 provides the definition and was cited
in a case decided by the U.S. Supreme Court in 2009 -- Sinaltrainal v. Coca-Cola Co., 578
F.3d 1252 (11th Cir. Fla. 2009).

34

The following are among the known forms of extra-judicial killings:

1.

Political assassinations;

2.

Deaths resulting from torture or ill-treatment in prison or

detention;

3.

Death resulting from enforced "disappearances";

4.

Deaths resulting from the excessive use of force by lawenforcement personnel;

5.

Executions without due process;

6.

Acts of genocide;86

7.

Violations of the right to life during armed conflict,

especially of the civilian population and other noncombatants, contrary to International Humanitarian Law;

8.

Deaths due to attacks or killings by security forces of the

State, or paramilitary troops, death squads, or other
private forces cooperating with or tolerated by the State;

9.

Deaths due to the use of force by law enforcement

officials or persons acting in direct or indirect compliance
with the State, when the use of force is inconsistent with
the criteria of absolute necessity and proportionality;

10.

Deaths in detention/custody owing to torture, neglect or

use of force or life-threatening conditions of detention;

11.

Deaths due to acts or omission on the part of authorities,

including mob killings;

12.

Violations of the right to life in connection with the death

penalty;

13.

Deaths due to excessive use of force by the law

enforcement or the military, inconsistent with the criteria
of absolute necessity and proportionality; and

14.

The absence of investigation, prosecution and/or

punishment in cases of death in suspicious circumstances.

86 Minnesota Protocol.
35

Common Patterns Observed in Extra-Judicial Killing

There exist common patterns in the conduct preparatory, during and
after an extra-judicial killing, such as:
1. Surveillance and threats to the victims
presumptively by officers;
2. Finding their names in an Order of Battle
by military commanders;
3. Victim has an affiliation with lawful activist
or leftist movements and political parties
(including
labor,
journalism,
women,
peasants, environmental and other sectors);
4. Assassination (often in front of the families
and friends) by hooded persons often
driving motorbikes or unlicensed vehicles;
5. Scant investigation;
6. Witness intimidation and sometimes witness
murder.87
7. Victims
critical
stance
against
government and/or its officials;

the

8. Death threats directed, in particular, against

persons who played key roles in defending
human rights and achieving social and
criminal justice;
Investigation of EJK Cases within
the Philippine Context
As mentioned earlier, in the absence of law in the Philippines defining
and penalizing human rights violations involving extralegal or extra-judicial
killings, the relevant provisions of the Revised Penal Code on the common
crime for murder and homicide shall be applied for purposes of criminal
liability; and the pertinent provision of the Civil Code, for purposes of civil
liability for damages.
Article 248 of the Revised Penal Code provides that murder is the
unlawful killing of any person which is not parricide or infanticide, committed
with any of the following circumstances:
1. With treachery, taking advantage of superior strength, with the
aid of armed men, or employing means to weaken the defense
or of means or persons to insure or afford impunity;
87 Thoughts on Extra-Judicial Killings and Unexplained Disappearances, PJ Ruben T.
Reyes and J. Mariano C. Del Castillo, available at
http://ca.judiciary.gov.ph/index.php?action=mnuactual_contents&ap=j5050
36

2. In consideration of a price, reward or promise;

3. By means of inundation, fire, poison, explosion, shipwreck,
stranding of a vessel, derailment of or assault upon a street car
or locomotive, fall of an airship, by means of motor vehicles, or
with the use of any other means involving great waste or ruin;
4. On occasion of any of the calamities enumerated in the
preceding paragraph, or of an earthquake, eruption of a
volcano, destructive cyclone, epidemic, or any other public
calamity;
5. With evident premeditation;
6. With cruelty, by deliberately and inhumanly augmenting the
suffering of the victim, or outraging or scoffing at his person or
corpse.
The following are the elements of murder:
1. A person was killed.
2. The accused killed him.
3. The killing was attended by any of the qualifying
circumstances provided under Article 248.
4. The killing is neither parricide nor infanticide.
On the other hand, homicide, which is penalized under Article 249,
refers to the unlawful killing of any person, which is neither parricide, murder
nor infanticide.
The following are the elements of homicide:
1. A person was killed.
2. The
accused
circumstances.

killed

him

without

any

justifying

3. The accused had the intention to kill, which is presumed.

4. The killing was not attended by any of the qualifying
circumstances of murder, of by that of parricide or
infanticide.

Definition of Extra-Legal Killings (ELK) or

Extra-Judicial Killings (EJK) pursuant to the Inter-Agency
Guidelines on the Implementation of A.O. No. 35
37

Administrative Order No. 35 provides the criteria 88 to identify cases of

ELK/EJK, to wit:
(a) The victim was:
i. a member of, or affiliated with an organization, to include
political, environmental, agrarian, labor, or similar causes; or
ii. an advocate of above-named causes; or
iii. a media practitioner or
iv. person(s) apparently mistaken or identified to be so.
(b)The victim was targeted and killed because of the actual or
perceived membership, advocacy, or profession;
(c) The person/s responsible for the killing is a state agent or non-state
agent;
(d)The method and circumstances of attack reveal a deliberate intent
to kill;
It must be noted that Article III, Section 10 of the Operational
Guidelines of A.O. No. 35 provides that during the initial assessment of a
case of killing (which is deemed to include an attempted and frustrated
killing), the local law enforcement agency, office or unit concerned must be
able to identify the presence of any two of the elements mentioned in Article
I (1) of the same operational guidelines.
Evidence Needed to Prove Murder or Homicide:
1. Affidavit of complainant and witnesses (focusing on the
circumstances that would qualify the act as a human rights
violation);
2. Police/investigation report;
3. Certified true/machine copy of the certificate of death of the
victim;
4. Necropsy report and certificate of post-mortem examination
(for causes of death and internal/external injuries sustained
immediately prior to, or contemporaneous with, the point of
death);
5. Object evidence such as photos, DNA, ballistics, bones, blood
splatters.
Principles on the Effective Investigation
of Extra-legal, arbitrary and summary
executions89

88 Article I (Definition of Terms), No. 1

89 Annex to the Economic and Social Council resolution 1989/65 of the United
Nations General Assembly, cited in the Fundamentals in Human Rights Investigation
Work in the Philippines: A Handbook for CHR Special Investigators produced by the
Commission on Human Rights with the support of the British Embassy-Manila, 2001,
pp. 60 63.
38

1.

There shall be a thorough, prompt and impartial investigation of all

suspected cases of extra-legal, arbitrary and summary executions,
including cases where complaints by relatives or other reliable reports
suggest unnatural death in the above circumstances. Governments
shall maintain investigative offices and procedures to undertake such
inquiries. The purpose of the investigation shall be to determine the
cause, manner and time of death, the person responsible, and any
adequate autopsy, collection and analysis of all physical and
documentary evidence, and statements from witnesses.
The
investigation shall distinguish between natural death, accidental death,
suicide and homicide.

2. The investigative authority shall have the power to obtain all the
information necessary to the inquiry. Those persons conducting the
investigation shall have at their disposal all the necessary budgetary
and technical resources for effective investigation. Hey shall also have
the authority to oblige officials allegedly involved in any such
executions to appear and testify. The same shall apply to any witness.
To this end, they shall be entitled to issue summons to witnesses,
including the officials allegedly involved, and to demand the production
of evidence.
3. The body of the deceased person shall not be disposed of until
adequate autopsy is conducted by a physician, who shall, if possible,
be an expert in forensic pathology. Those conducting the autopsy shall
have the right to access to all investigative data, to the place where
the body was discovered, and to the place where the death is thought
to have occurred. If the body has been buried and it later appears that
an investigation is required, the body shall be promptly and
competently exhumed for an autopsy.
If skeletal remains are
discovered, they should be carefully exhumed and studied according to
systematic anthropological techniques.
4. The body of the deceased shall be available to those conducting the
autopsy for a sufficient amount of time to enable a thorough
investigation to be carried out. The autopsy shall, at a minimum,
attempt to establish the identity of the deceased and the cause and
manner of death.
The time and place of death shall also be
determined to the extent possible. Detailed color photographs of the
deceased shall be included in the autopsy report in order to document
and support the findings of the investigation. The autopsy report must
describe any and all injuries to the deceased including any evidence of
torture.
5. In order to ensure objective results, those conducting the autopsy must
be able to function impartially and independently of any potentially
implicated persons or organizations or entities.
6. Complainants, witnesses, those conducting the investigation and their
families shall be protected from violence, threats of violence, or any
other form of intimidation. Those potentially implicated in extra-legal,
arbitrary or summary executions shall be removed from any position of
control or power, whether direct or indirect, over complainants,
witnesses and their families, as well as over those conducting
investigation.

39

7. Families of the deceased and their representatives shall be informed of,

and have access to, any hearing as well as to all information relevant
to the investigation, and shall be entitled to present other evidence.
The family of the deceased shall have the right to insist that a medical
or other qualified representative be present at the autopsy. When the
identity of a deceased person has been determined, a notification of
death shall be posed, and the family or relatives of the deceased
immediately informed. The body of the deceased shall be returned to
them upon completion of the investigation.
8. A written report shall be made within a reasonable period of time on
the methods and findings of such investigations. The report shall be
made public immediately and shall include the scope of the inquiry,
procedures and methods used to evaluate evidence as well as
conclusions and recommendations based on findings of fact and on
applicable law. The report shall also describe in detail specific events
that were found to have occurred, and the evidence upon which such
findings were based, and list the names of witnesses who testified,
with the exception of those whose identities have been withheld or
their own protection. The Government shall, within a reasonable
period of time, either reply to the report of the investigation or indicate
steps to be taken in response to it.

40

CHAPTER VI
PROCEDURES IN THE CRIMINAL PROSECUTION OF ENFORCED
DISAPPEARANCE, TORTURE, AND EXTRAJUDICIAL KILLING
Preliminary Investigation
Preliminary investigation is an inquiry or proceeding to determine
whether there is sufficient ground to engender a well-founded belief that a
crime has been committed and the respondent is probably guilty thereof,
and should be held for trial (Sec. 1, Rule 112, Revised Rules on Criminal
Procedure). It is required where the penalty is at least 4 years 2 months and
1 day without regard to fine.
Quantum of Evidence Required
In preliminary investigations, the evidence required for purposes of filing a
complaint is merely such evidence as would engender a well-founded belief
that a crime has been committed and the respondent is probable guilty
thereof, and should be held for trial (Section 1, paragraph 1, Rule 112,
Revised Rules on Criminal Procedure).
Officers Authorized
Investigations

to

Conduct

Preliminary

The following officers are authorized under the law to conduct

preliminary investigation:
(a) Provincial or City Prosecutors and their
assistants;
(b)National and Regional State Prosecutors and
their assistants; and
(c) Other officers as may be authorized by law
Preliminary investigation begins with the filing of a complaint, which is
a sworn written statement charging a person with an offense, subscribed by
the offended party, any peace officer, or other public officer charged with the
enforcement of the law violated (Section 3, Rule 110, Revised Rules on
Criminal Procedure).
The complaint comes in the following forms:
(a) referral letter from the law enforcement agency;

41

(b)an affidavit of the offended party, or any person authorized by law

to
file a criminal complaint;
(c) a letter from the offended party; letter referral
from a committee of the Senate or House of
Representatives, or any government agency or
institution.
During preliminary investigation, complainant and respondent shall
submit their respective affidavits and supporting proof of documents. After
which, the investigating prosecutor shall determine whether there is
sufficient ground to hold respondent for trial.
If the respondent cannot be subpoenaed or, if subpoenaed, does not
submit his counter-affidavit within the prescribed period, the investigating
prosecutor shall base his resolution on the evidence presented by the
complainant.
The investigating prosecutor shall forward his recommendation and
Information, together with the complete records of the case, to the
Prosecutor General/Regional/Provincial/City Prosecutor concerned for
approval.
Under operational guidelines of AO No. 35, the preliminary
investigation shall be terminated within thirty (30) days from receipt of the
complaint, and the filing of reply, rejoinder or motion for extension shall not
be allowed.
The investigating prosecutor shall submit the resolution for approval of
the Prosecutor General, City or Provincial Prosecutor within five (5) days from
the time the case is submitted for resolution. The Prosecutor General, City or
Provincial Prosecutor shall act on the recommendation of the investigating
prosecutor within two (2) days from receipt of the same.
Once the corresponding Information is filed in court, the transmittal of
the entire records to the appropriate Office of the Clerk of Court shall
indicate that the case involves extra-legal killing, enforced or voluntary
disappearance, torture or other grave human rights violation.
Inquest
Inquest is an informal and summary investigation conducted by a
public prosecutor in criminal cases involving persons arrested and detained
without the benefit of a warrant of arrest issued by the court for the purpose
of determining whether said persons should remain under custody and
correspondingly be charged in court.
All offenses covered under the Revised Penal Code and special laws,
rules and regulations are subject to inquest proceedings.
The inquest proceedings shall be considered commenced upon receipt
by the inquest prosecutor of the following documents:
(a) Affidavit of arrest
(b)Investigation report
(c) Sworn statement of
witnesses
42

the

complainant

and

(d)Other supporting documents, such as certified

true/machine copy of the certificate of death of
the victim and necropsy report and certificate of
post-mortem examination (for causes of death
and
internal/external
injuries
sustained
immediately prior to, or contemporaneous with,
the point of death).
The duty of the inquest prosecutor is to first determine if the arrest was
made in accordance with Section 5, Rule 113. Should the inquest prosecutor
find that the arrest was properly effected, he shall be asked whether he
wants to avail himself of a regular preliminary investigation. Otherwise, the
inquest prosecutor shall proceed with the conduct of the inquest proceedings
and file the corresponding information in court.
The inquest proceedings must be terminated within the period
prescribed under the provisions of Article 125 of the Revised Penal Code, as
amended.
Upon a finding or probable cause against respondent, the investigating
prosecutor shall prepare the resolution with the corresponding Information,
with the recommendation that the same be filed in court. The Information
shall indicate the offense committed and amount of bail recommended.
Thereafter, the record of the case, together with the resolution and
information,
shall
be
forwarded
to
the
Prosecutor
General/Regional/Provincial/City Prosecutor for approval and subsequent
filing before the proper court.
Additional Duty of the Inquest/Investigating Prosecutor
when the Person delivered is a victim of enforced disappearance:
When the inquest or investigating prosecutor learns that the
respondent in an inquest or preliminary investigation is a victim or probable
victim of enforced or involuntary disappearance, he shall immediately
disclose the probable victims whereabouts to his or her immediate family,
relatives, lawyer/s or the Commission on Human Rights (CHR) or any human
rights organization.
The inquest or investigating prosecutor shall inquire from the person
presented for inquest or preliminary investigation whether or not the
respondents immediate family or relatives, lawyer, CHR or any human rights
organization, have been informed of the respondents arrest/detention,
including his or her whereabouts; and if do, the details or particulars of such
communication as regards the name/s of person/s communicated to, their
contact details, and time of communication.
If respondent is accompanied by his or her family or relatives, lawyer,
or other persons, other than the arresting officers, the prosecutor shall
likewise verify from said companion/s the time or particulars of the
communication with respondent.
The prosecutor shall include in the minutes of proceedings the facts
and details of communication to respondents family, relatives, CHR or other
human rights organizations, and require respondent, as well as his or her
companion and arresting officer to sign the same.

43

The inquest prosecutor shall include in his or her resolution that it is an

AO35 case. The Prosecutor General, City or Provincial Prosecutor shall act on
the recommendation within two (2) days from receipt.
Once the corresponding Information is filed in court, the transmittal of
the entire records to the appropriate Office of the Clerk of Court shall
indicate that the case involves extra-legal killing, enforced or voluntary
disappearance, torture or other grave human rights violation.
Pre-Trial
The following are subject matter of pre-trial conference:
1.
2.
3.
4.
5.
6.

Plea bargaining;
Stipulation of facts;
Marking for identification of evidence of the parties;
Waiver of objections to the admissibility of evidence;
Modification of the order of trial;
Such other matters as will promote fair and expeditious trial of the
criminal and civil aspects of the case.

Trial
Upon receipt of the notice of trial, the prosecutor shall review the
record of the case for trial and complete his preparation therefor, bearing in
mind that trial, once commenced, may continue from day to day until
terminated. He may, however, move for postponement for a reasonable
period of time for good cause.90
Upon the raffle to the proper court of a case involving extra-legal killing,
enforced or involuntary disappearance, torture or grave human rights
violation, the trial prosecutor shall immediately coordinate with the Special
Investigation Team, which investigated and built-up the case, and submit a
report of the fact of raffle to the IAC Secretariat, copy furnished the City or
Provincial Prosecutor.
As far as practicable, the Prosecutor General, City or Provincial
prosecutor shall create a special panel of prosecutors composed of AO35
prosecutor, investigating prosecutor and trail prosecutor for the purpose of
handling the actual prosecution of the case.
Discharge of Accused to be State Witness
When two or more persons are jointly charged with the commission of
any offense, the trial prosecutor before resting his case, shall move for the
discharge of one or more of the accused with their consent so that they may
be witnesses of the state.
Admission to the Witness Protection Program of
an Accused Who has been Discharged

90 Revised Manual for Prosecutors, p. 157.

44

An accused who is discharged from an information or criminal

complaint in order that he may be a state witness as provided in the
preceding section may, upon his petition, be admitted to the Witness
Protection Program under R.A. No. 6981, otherwise known as The Witness
Protection, Security and Benefit Act, if he complies with the other
requirements of said Act.
Appeal/Petition for Review
The resolutions of the Prosecutor General/Regional/Provincial/City
Prosecutor in criminal cases may be the subject of a petition for review or
appeal.
The Secretary of Justice or the Prosecutor General may dismiss the
appeal/petition for review outright for being patently without merit or
manifestly intended for delay, or when the issues raised therein are too
unsubstantial to require consideration. If an Information has been filed in
court, the appeal/petition for review shall not be given due course if the
accused has already been arraigned.

CHAPTER VII
WITNESS PROTECTION AND SECURITY
Department of Justice Witness Protection Program
Among the protections available to victims and witnesses of human
rights violations is the Witness Protection Program (WPP) of the Department
of Justice.
It is a program established under Republic Act No. 6981, "The Witness
Protection, Security and Benefit Act", which seeks to encourage a person
who has witnessed or has knowledge of the commission of a crime to testify
before a court or quasi-judicial body, or before an investigating authority, by
protecting him from reprisals and from economic dislocation.91
Persons Who May Be Admitted into the DOJ
Witness Protection Program
The following persons may be admitted into the Witness Protection
Program (WPP) of the DOJ:
1. Any person who has knowledge of or information on the commission
of a crime and has testified or is testifying or is willing to testify;

91 Department of Justice, Witness Protection, Security and Benefit Program.

45

2. A
witness
in
a
congressional
investigation,
upon
the
recommendation of the legislative committee where his testimony is
needed and with the approval of the Senate President or the
Speaker of the House of Representatives, as the case may be;
3. A witness who participated in the commission of a crime and who
desires to be a State witness;
4. An accused who is discharged from an information or criminal
complaint by the court in order that he may be a State witness.92
In the context of human rights violations, the victims, witnesses to the
criminal offenses, including those who participated in extra-judicial killings,
torture or enforced or involuntary disappearances but qualifying as a state
witness may be protected under the WPP.
As criminal offenses arising from human rights violations are grave
felonies, public prosecutors must provide immediate assistance to persons
wishing to be placed under the WPP.
The person in danger or his or her family may get an application form
from the Secretariat, Witness Protection Security and Benefit Program,
Department of Justice Building, Padre Faura, Manila. The applicant may also
get the form at the nearest office of Regional State Prosecutor.
The proceedings involving the application for admission, the action
taken thereon and the information or documents submitted in support of the
application are confidential. They cannot be released without the written
order of the Department of Justice or the proper court.93
The benefits of the WPP include:
a. Security protection and escort services;
b. Immunity from criminal prosecution and not to be subjected to any
penalty or forfeiture for any transaction, matter or thing concerning
his compelled testimony or books, documents or writings produced,
if qualifying as a state witness;
c. Secure housing facility;
d. Assistance in obtaining a means of livelihood;
e. Reasonable travelling expenses and subsistence allowance while
acting as a witness;
f. Free medical treatment, hospitalization and medicine for any injury
or illness incurred or suffered while acting as a witness;
g. Burial benefits of not less than Ten Thousand pesos (P10,000.00) if
the witness is killed because of his participation in the Program;
h. Free education from primary to college level for the minor or
dependent children of a witness who dies or is permanently
incapacitated;
i. Non-removal or demotion in work because of absences due to his
being a witness and payment of full salary or wage while acting as
witness.
CHR Witness Protection Assistance
92 Ibid.
93 Ibid.
46

As the circumstances warrant, the CHR, in coordination with

appropriate agencies or organizations, shall ensure adequate security and
protection measures to the surviving victims and their families, as well as
vital witnesses at all stages of the investigation until the final disposition of
the case, and even thereafter.
The provision of witness protection assistance, 94 including provision of
temporary shelter, shall be approved by the Chairperson and, in her
absence, any Commissioner. Thus, the CHR Regional Offices shall work in
close coordination with the Assistance and Visitorial Office and the Legal and
Investigation whenever the situation necessitate the provision of immediate
witness protection assistance to surviving victims and their family, as well as
vital witnesses. Upon evaluation and recommendation of the Director of the
Legal and Investigation Office that the witness should be turned over to the
DOJ-WPP, the Chairperson shall approve and endorse the witness to the
Witness Protection Program of the DOJ, pursuant to the Memorandum of
Agreement between the CHR and the DOJ.
As the circumstances may also require, the CHR on its own, or with the
assistance of lawyers association or private law practitioner/s, shall provide
to the surviving victims, the victims families and witnesses the necessary
legal assistance,95 to include immediate access to special legal remedies, to
ensure their protection from further violations or threats thereof from the
perpetrators/respondents.
The case investigator/s shall, therefore:
(1)Ascertain the security situation of the victims, their families and
witnesses;
(2)Immediately inform and consult with the CHR Regional Director and
closely work in coordination with CHR lawyer at the regional level
for purposes of determining the necessity for immediate courses of
action, such as assisting them in seeking immediate special legal
remedies for their protection; and
(3)Whenever necessary, should seek the support/assistance of the
Legal Division or the Investigation division for the prompt
preparation of the required pleadings and other appropriate
documents, and/or appropriate legal representation.96

94 CHR Guidelines and Procedures, Rule 19.

95 Ibid., Rule 20.
96 CHR Manual on Investigation and Case Management Process, 2012 ed.
47

CHAPTER VIII
VICTIM COMPENSATION PROGRAM
AND OTHER ASSISTANCE TO VICTIMS
Under R.A 7309 (Board of Claims, DOJ)
Without prejudice to the other remedies available to human rights victims
and their families to exact damages from the perpetrators of grave human
rights violations, Republic Act No. 7309 created the Board of Claims under
the Department of Justice to grant compensation for victims of violent crimes
which include rape and offenses committed with malice which resulted in
death or serious physical and/or psychological injuries, permanent incapacity
or disability, insanity, abortion, serious trauma, or committed with torture,
cruelty or barbarity.97
As torture, enforced or involuntary disappearances, and murder or homicide
(extralegal or extra-judicial killings) are offenses which may result in the
occurrences mentioned above, victims and their families are rightful
claimants under R.A. No. 7309.

97 Department of Justice, Victims Compensation Program.

48

The claim should be filed with the Board by the person entitled to
compensation under this Act within six (6) months from the date he suffered
damage or injury; otherwise he is deemed to have waived his claim.98
In case of death or incapacity of any person entitled to any award
under this Act, the claim may be filed by his heirs, in the following order: by
his surviving spouse, children, natural parents, brother and/or sister. 99
The maximum amount that may be claimed shall not exceed Ten
Thousand Pesos (P10,000.00) or the amount necessary to reimburse the
claimant the expenses incurred for hospitalization, medical treatment, loss of
wage, loss of support or other expenses directly related to the injury,
whichever is lower.100
The Anti-Enforced or Involuntary Disappearance Act of 2012
particularly grants the right of immediate relatives of a victim of enforced or
involuntary disappearance, within the fourth civil degree of consanguinity or
affinity, to claim for compensation as provided for under Republic Act No.
7309, without prejudice to other relief programs of the government and other
legal remedies available.101
Other CHR Assistance
The victims of human rights violations, including victims of enforced
disappearance, extrajudicial killing, and torture can qualify for other
assistance, such as financial in a minimal amount as provided under the CHR
rules.102

98 Ibid.
99 R.A. No. 7309.
100 Department of Justice, Victims Compensation Program.
101 Supra note 30, Sec. 26.
102 CHR Guidelines and Procedures, Rule 21.
49