HUMAN RIGHTS COUNCIL
Nineteenth session, Agenda Item 3, Interactive Dialogue with the Special Rapporteur on torture
A written statement submitted by the Asian Legal Resource Centre (ALRC), a non-governmental organisation with general consultative status
The Asian Legal Resource Centre (ALRC) wishes to inform and seek the intervention of the Human Rights Council and the Special Rapporteur on torture concerning the frequent dismissals of complaints of torture, which speak to a system of legal and procedural obstacles and systemic institutional failings that are ensuring that perpetrators of torture typically enjoy impunity in the Philippines.
Torture remains widespread in the Philippines, not only concerning counter-terrorism and counter-insurgency operations, but also by the police concerning a large number of petty criminal cases. Despite having acceded to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in June 1986, over 25 years later, the practice remains endemic and victims have no truly effective avenues to seek redress, while the perpetrators go free. This climate of impunity only engenders the further use of torture.
As the members of the Human Rights Council negotiate a resolution on torture during the body’s upcoming 19th session, it is imperative that such obstacles and the resultant impunity they confer on perpetrators of torture be included as an area of focus, in order to enable the more effective application of the Convention at the national level around the world. While this statement concentrates on the situation in the Philippines, similar obstacles and systems enabling deeply-entrenched impunity for torture are witnessed across Asia. The international system has thus far proven ineffective at addressing situations comprising endemic and widespread torture as a component of regular police investigations.
The ALRC documents numerous case of torture in the Philippines each year, and is gravely concerned by the range of systemic failings and actions by prosecutors, the police and the country’s courts, that are leading to dismissals of cases in which victims of torture are seeking justice and reparation. Several key case examples are presented below, in order to illustrate various facets of the phenomenon of case dismissals.
Complaint dismissals often result from the failure to adequately record medical evidence concerning the use of torture, despite provisions in the 2009 Anti-torture Act and the Implementing Rules and Regulations of the Anti-torture Act, which contain specific instructions concerning the right to physical, medical and psychological examinations prior to and following interrogation, and the specific information that must be recorded by doctors conducting such examinations. The rejection of torture complaints that were lodged by detained Muslim victims Jedil Esmael Mestiri and Rahman Totoh, who were allegedly respectively tortured by the 32nd Infantry Battalion (IB) of the Philippine Army (PA) on June 26, 2011, and the Basilan Police’s Special Action Force (SAF) on July 28, 2011, speak to this problem.
In Mestiri’s case, the military took him to the Isabela City General hospital, but the doctor who examined him ignored his chest pains and injuries. In Rahman’s case, although the Basilan General Hospital doctor who examined him did record his injuries, he failed to give adequate medical explanations, as required by Anti-torture Act, to explain the cause of the injuries. In a letter dated January 6, 2012, Police Director Nicanor Bartolome, rejected both Mestiri and Rahman’s allegations of torture against the perpetrators, citing a lack of medical evidence. Placing the burden of proof upon victims is unacceptable, and the doctors’ failures in conducting forensic examinations are violations in their own right and must be independently investigated and dealt with as such, but the authorities typically fail to take such action.
In another case, State prosecutors dismissed a torture complaint against the police on July 21, 2011, on the basis that the victim, who was blindfolded during torture, could not positively identify those responsible. On August 3, 2010, Lenin Salas and three others were arrested the San Fernando City Police and the Provincial Public Safety Office under Superintendent Madzgani Mukaram in relation to their alleged involvement with the Marxist Leninist Party of the Philippines (MLPP-RHB), an illegal armed group. During arrest, Lenin Salas was reportedly assaulted and beaten with a stick. Inside the police headquarters he was blindfolded and beaten with a gun, burnt on the body and neck with lit cigarettes, suffocated with cellophane, kicked in the genitals, and subjected to mock execution. The other three men were also reportedly tortured. This treatment lasted until they were taken to the Provincial Prosecutor’s Office (PPO) in San Fernando, Pampanga Province, where they were charged with Illegal Possession of Firearms, Ammunitions and Explosives.
The case of Misuari Kamid, who was arbitrarily arrested on April 30, 2010, and tortured in order to force him to confess to selling illegal drugs, also shows the unwillingness of the authorities to prosecute state officials for torture. Following his being severely beaten, Misuari was framed by the police, with two plastic sachets containing illegal drugs and a 500 peso bill being placed on the ground and his being forced through beatings to kneel beside them in order for photos to be taken. He was paraded before the media on May 1 along with the planted evidence. The injuries that he suffered were confirmed in a medical certificate issued on May 18, 2010. Misuari remains detained in the General Santos City Reformatory Center. According to information received recently, the prosecutor has downgraded the case from one concerning torture to physical injury. It is thought that this is a compromise position to allow the case to go forwards rather than dropping it altogether, due to pressure from civil society groups. However, this remains indicative of the in-built resistance by the authorities to ever proceed with cases specifically relating to torture.
Further inconsistencies in the way torture complaints are dealt with by the authorities are illustrated by the case of Darius Evangelista, who was allegedly tortured on March 5, 2010, in Tondo by policemen attached to Police Stations 2 & 11 of the Manila Police District, having been arrested on allegations of robbery. Three detainees witnessed him being taken upstairs to a room inside Police Station 11 where he was interrogated and tortured. The torture resulted in him being badly injured, with visible blunt trauma to his face and swollen eyes, according to one of the witnesses. The police denied having Darius in detention to his family members. He was seen being taken away from the police station on March 6 by one of the detainees and has not been seen alive since. His family reported his disappearance to the police, who filed a “Missing Person Alarm Report” that omitted any reference to his having been detained. Subsequently, in late March, a severed human head thought to be Darius’ was found by scavengers, although forensic identification has still not been completed. His father and three witnesses signed sworn statements regarding Darius’ arrest, torture and disappearance which have been provided to the Commission on Human Rights, which has failed to conclude an investigation as mandated under the 2009 the Anti-Torture Act.
However, on August 17, video footage of Darius’ torture at the hands of the police surfaced, and was broadcast by national television station ABS-CBN. In the video, the victim is seen having his penis pulled by a string tied around it as he is lying on the floor naked. He is beaten every time he folds his body as he tries to reach his genitals in pain. Several policemen from the police station are visible in the video footage. The policeman shown torturing the victim is the chief of the police station, SI Joselito Binayug. After the video was aired, the police were under pressure to create a team to investigate the case, which they called Task Force Asuncion. They again interviewed the three witnesses. On August 23, 2010, the Criminal Investigation and Detection Group filed charges for violation of the Anti-Torture Act with the Department of Justice (DoJ) against the accused policemen. Section 9(a) of the Act requires the DoJ to resolve whether the policemen have a case to answer within 60 days; and if there is an appeal, it must still be “within the same time period prescribed”. However, it was only one year later, on August 22, 2011, that DoJ prosecutors recommended the filing of charges for Torture Resulting in the Death of any Person, under the 2009 Anti-torture Act.
While the ALRC welcomes this landmark prosecution, which it believes is the first known case in which members of the security forces will be tried for violations of the 2009 Anti-Torture Act, the delays witnessed in this process, despite overwhelming evidence, remain a serious concern. The ALRC recalls that in cases of torture, the Anti-Torture Act provides for victims’ right to prompt and impartial investigations, however, the absence of a mechanism to deal with prosecutors and investigators who fail to comply with the law has resulted in cases remaining pending for years. In less high-profile cases, such delays often result in victims abandoning complaints, in particular due to the threats and lack of protection that they face during these extended periods. The ALRC therefore urges the government of the Philippines, in particular the Department of Justice, as well as the Commission on Human Rights, which are the two agencies that have the primary obligation to implement the Anti-Torture Act, to ensure the prompt establishment an effective mechanism to prevent needless delays in investigating and prosecuting torture cases.
Despite documenting and following numerous cases of torture in the Philippines, the ALRC is unaware of any related torture complaints that have resulted in the successful prosecution of those alleged to have committed these acts. The ALRC calls on the government to provide detailed information to the Human Rights Council, the Special Rapporteur on torture and in particular in its upcoming reporting to the Universal Periodic Review, concerning the number of successful prosecutions of persons accused of perpetrating torture it has recorded to date, the punishments they received, and statistical and analytical data concerning successful and dismissed torture complaints, including the reasons for dismissals. This data should include sufficient information to enable case by case verification of the claims made.
Additionally, the ALRC recalls that as part of the Philippines initial UPR process, a number of states and observers made recommendations concerning the need for the government to address the issue of torture, which the government accepted. The Holy See called for the complete elimination of torture and extra-judicial killings. Mexico, the Netherlands, Slovenia (as EU President) and the United Kingdom called for the government to sign and ratify the Optional Protocol to the Convention against Torture (OPCAT). The government has failed to take the required action concerning these accepted recommendations. In a related matter that is relevant here, Switzerland called on the government to “Intensify its efforts to carry out investigations and prosecutions on extrajudicial killings and punish those responsible.” The problem of a lack of effective investigations and prosecutions concerning extra-judicial killings mirrors that found concerning torture, and the ALRC therefore urges the afore-mentioned states and other members of the UPR Working Group to make further recommendations concerning the issue of torture, including the need to eliminate its use, to sign the OPCAT, but also to ensure the prompt investigation and prosecution of complaints of torture through the systematic recording of medical evidence, the elimination of delays and obstacles to prosecutions, the effective protection to victims and witnesses, and the effective punishment of perpetrators of torture, in line with the 2009 Anti-torture Act. Furthermore, the government must be urged to establish legal provisions and an effective oversight mechanism to ensure the punishment of all officials who participate in the obstruction of justice concerning the prosecution of torture complaints.
