The Asian Human Rights Commission (AHRC) has obtained a copy of an Investigation Report released by the Commission on Human Rights (CHR) regional office III, exonerating soldiers who were accused of illegally arresting, detaining and torturing five indigenous people in Barangay (village) Dikapinisan, San Luis, Aurora province in December 2009. The AHRC questions the logic, merit and legality of the report’s findings.
The report was authored by CHR special investigators Valente Rigor, Luzviminda Venasquez and Joel Boanjares Ocampo. They were tasked to investigate the victims’ complaint against the soldiers and village officials who are accused of violating the laws on Rights of Persons Arrested, Detained or under Custodial Investigation (RA 7438), Rule 113 of the Revised Rules of Criminal Procedure and the Anti-Torture Act of 2009. But the argument of the CHR investigators in exonerating the accused was based mainly on the changes made by a third party about the location of the place of incident.
The facts narrated below are based on the information from the victims obtained by the AHRC (through the Task Force Detainees of the Philippines (TFDP)) and the testimonies of the witnesses, village officials and the soldiers used by the CHR investigators in their Investigation Report.
FACTS OF THE CASE
In the evening of December 1, 2009, soldiers had taken into their custody five indigenous people, Rolan Corpuz, 20; Jun Jun Acleto, 17; Ricky Torres, 21; Lolit Agbayani; and Edwin Buryo, 30; from a house where they were staying in Barangay (village) Dikapinisan, San Luis, Aurora province. They were taken for questioning for a simple reason that one of them had asked a local villager where the detachment of the military is located. The five victims were taken by soldiers attached to the 48th Infantry Battalion (IB), Philippine Army, to question them at their detachment.
The five victims had been granted permission by Edgardo “Jun” Friginal, to stay in his house overnight. He is one of the local villagers whom the group had met earlier that day when they were hunting bird’s nest. Friginal was with a woman. In one of their conversations, Edwin Buryo, asked Friginal about “the location of the camp of the military (there were no reasons given about why and on what purpose Buryo asked the question)”.
But it was an unknown villager who reported to Carlito Amaba, village chief of Dikapinisan of the same municipality about the presence of the five victims at Friginal’s house. This report had “alarmed” Amaba prompting him to “seek the assistance of the soldiers at the detachment requesting them to invite (for him) the strangers” for questioning. The soldiers posted at the detachment in the same village acted on Amaba’s request.
None of the witnesses and soldiers that the CHR investigators had interviewed could explain by giving reasonable grounds as to why the victims had to be deprived of liberty and be taken for questioning. None of the victims were in the act of committing, had not committed or were about to commit a crime that could justify having them arrested without warrant; or, them being taken into custody of the soldiers at that time.
One of the soldiers, 2nd Lt Dennis Moreno, platoon leader of Reconnaissance Platoon, did not deny the fact that they indeed took the victims in their custody at the detachment but denied torturing them. Moreno used the sworn statement of Amaba to support his defence.
Colonel Escarcha and Lt. Jerson Igloria of the 48th IB also did not deny having in custody three of the victims– Jun Jun Acleto, 17; Ricky Torres, 21; and Edwin Buryo, 30–for a “few days” and that “they can be fetched from the (military) camp anytime” from December 1 to 4. They informed Ederlito Cumilang, village chief of Ibona, Dingalan municipality, who had asked them to verify the report made to him by Rolan Corpuz on December 2 at 2pm “that a fellow Dumagat (name of the tribe) fell into a ravine at Barangay Dikapinisan, San Luis.”
The soldiers also did not challenge the fact that Rolan Cruz and Lolit Agbayani were in soldiers’ custody on December 2, the day that “the soldiers brought them to the place where they (victim) said their firearms were hidden; and on December 3, when “Lolit jumped into a ravine; and “Cruz was instructed to go down the ravine and look for Lolit”. Agbayani and Cruz’s have resolved in jumping into a ravine and not to rejoin with the soldiers in their foot patrol respectively to escape.
It was also after Cruz’ escape that Cumilang, village chief of Ibona, had received the report regarding the supposed falling of Agbayani into a ravine on December 2 (the date he had claimed Cruz made the report conflicts to the date Cruz mentioned that he had escaped on December 3); however, the fact that Cruz at the early stage reported the falling of Agbayani had already affirmed the existence of the fact that they have been in the custody of the soldiers.
It was only on December 4 that the three victims who remain with the soldiers, Jun Jun Acleto, 17; Ricky Torres, 21; and Edwin Buryo, 30; “were able to return to the camp”; and on December 5, they “were released by the military”. No reasons were given to them as to why they were questioned and held in custody.
On February 2, 2010, the CHR investigators interviewed the victims at the CHR Central Office and recorded their testimony. The victims had clearly pointed out that the incident took place in the village of Dikapinisan, San Luis, Aurora; however, a month later, Fr. Pete Montellana, a priest who is helping the victims; called the CHR’s office telling them to change the location of incident to Barangay Dikapinikian, Dingalan, Aurora.
The CHR investigators resolved in their report (dated April 6, 2010 but only made available recently), based solely on the change of the location of the place of the incident. The changes were made by Fr. Montellana, not by the victims who filed the complaint. The investigators also did not mention whether the changes were with the full knowledge of the victims; or, whether it was made official by writing with the signature (or thumb marks) of the victims. The investigators rather resolved: “a month after (changes to place of incident) the sworn statements of the victims were signed is, to say the least totally astonishing, because it totally changed the landscape of the case”.
The report further say that: “Dikapinisan and Dikapanikaan are two barangays located in two different municipalities, San Luis and Dingalan respectively. It would be inconceivable that the incident happened simultaneously in two different municipalities, separated by mountains and the only means of transportation is by boat.”
The CHR’s resolve not to pursue prosecution against the soldiers and the barangay officials involved for simple reason that the location of the incident had been changed by somebody else is illogical, unintelligible and disregards due process. They have either failed terribly or refused to intelligibly assess the facts they already have on hand as to the probability of the existence of the crime as ground for their ’cause of action’. They have ignored and trivialized the facts illustrating lucidly how the Rights of Persons Arrested, Detained or under Custodial Investigation (RA 7438), the Rule 113 of the Revised Rules of Criminal Procedure and the Anti-Torture Act of 2009 have been violated.
Arrest and detention was illegal
The taking of the five victims to the military camp from where they were staying for the simple reason that one of whom asked “where is the military detachment located” to the military camp for questioning was patently illegal. Asking such question is not a crime; thus, it does not qualify justification to implement “warrantless arrest” or “citizen’s arrest” on them. The soldiers and the barangay officials have abused their authority by detaining them at the camp, questioning them in absence of their lawyer, for not informing their respective families about their whereabouts and explaining to them the reason why they are being held. The victims belong to an ethnic minority that should have been afforded further legal protection by the soldiers and the village officials.
The claim of Carlito Amaba, village chief of Dikapinisan, that “no torture, harm and threats were made by the soldier” and that the victims “even volunteered to guard them and suggested to send message to their family” could not be trusted. By testing the credibility of this person’s testimony, it lacks impartiality and truthfulness because he himself was involved in having the victims illegally arrested and detained. It was him who requested the soldiers to take the victims for questioning. He himself took part in questioning them.
The escape of Rolan Cruz and Lolit Agbayani from the soldiers’ custody also put into question Amaba’s claim that the victims have “volunteered to guard them” after supposedly admitting to them that they were New Peoples’ Army (NPA) rebels. Section 8 of the Anti-Torture Act of 2009 clearly prohibits any use of confession obtained “as a result of torture.” Thus, Amaba’s claim about the victims having admitted to being rebels could not be used against them. Their escape also illustrates that their joining with the soldiers in their foot patrol on December 2 could not have been voluntary.
Only police can arrest, detain and question; not soldiers
Investigating crime is the utmost responsibility of the police, not of the soldiers or barangay (village) officials. The victims should have been handed over immediately to the local police who would have to investigate whether or not the victims committed a crime. But the soldiers and the barangay officials rather deliberately conspired in not reporting the arrest and the keeping of the victims in their custody at the camp to the police.
The statements of P/Supt Dexter Thompson, officer-in-charge of the Dingalan Municipal Police Station (DMPS) and Zenaida Padiernos, town mayor of Dingalan, regarding the absence of a report about the victims having been tortured can be expected. But this does not mean that no such incident has ever taken place. When a case is not reported to the police authorities or to the local government, the reason could be either the victims are too frightened or unwilling to make a complaint; or, those responsible had conspired to cover-up the incident to suppress it from being exposed.
In this case, no report was made to the police and the local authorities for simple reasons: firstly, the soldiers and the barangay officials did not report it to the police and did not inform them that they were keeping the victims in their custody; secondly, both P/Supt Thompson and Mayor Padiernos could not possibly receive any report because they have no jurisdiction in the place where the incident happened. Thus, neither the policeman’s nor this town mayor’s testimony is material to the case.
Witnesses are not credible
There are witnesses and individuals that the CHR investigators had interviewed who are lacking credibility. Two of the interviewees mentioned below took part in illegally arresting, detaining and questioning the victims.
Carlito Amaba, village chief of Dikapinisan of San Luis, Aurora: He is the person who requested the soldiers to arrest, detain, and question the victims at the military detachment. At the military camp, he was also the one “asking their names and asked them to show any identification papers.” He was also present “after a series of questioning by the military” that the victims had supposedly “voluntarily admitted being members of the NPA.”
2nd Lt. Dennis Moreno, platoon leader of the Reconnaissance Platoon of the 48th Infantry Battalion: His simple denial that the victims “were never tortured during their stay at the detachment” and “cited that barangay officials and other residents could attest on this matter” also lacks credibility. None of the soldiers, who had been accused of committing torture, in the AHRC’s years of experience in documenting torture cases, have ever admitted the allegations made on them by torture victims. Thus, this soldier’s testimony is ordinary and common defence that cannot be taken seriously. It is no different to excuses by other soldiers who have been accused of torture in the past. But if the CHR so decides to take this defence, they should have applied numerous tests comparing it to the circumstantial evidences they already have on hand rather than depending heavily on the testimonies of the witnesses and persons they had interviewed.
Moreno’s argument of using Amaba’s sworn statement for his defence out rightly lacks credibility. By simple logic and reason, when two persons are accused of conspiracy to cover-up allegations of violations in the performance of their duty–for Amaba’s part, as a village official and for Moreno, as a military officer–they would certainly defend each other. Both Amaba and Moreno’s testimony have no semblance of credibility. The CHR should apply multiple tests, for example the credibility of person, impartiality of the testimony, and many others being this process an elementary principle to weigh the probability of the existence of the crime.
Victims and their testimony weigh heavy to prove torture
To investigate allegations of torture it must also involve expert knowledge. Torture leaves physical and psychological traces to victims that can now be detected by modern medical and psychological knowledge. To determine whether the victims had been tortured or not must also include opinions of the experts in this discipline. The existence or absence of torture must not solely be based on testimonies of third party persons; documents (like certifications, testimonies) that could be easily fabricated, tampered with or twist their facts.
The CHR should take note that when Dr. Ben Molina, a medical expert, examined torture victims Rolan Cruz and Jun Jun Acleto after the incident, the torture marks and bruises in their bodies were still visible, particularly in their arms. Rolan had difficulty breathing due to his injuries. All these are indicators of trauma that torture victims had suffered. Molina’s opinion weighs far more credible than the simple denial of the soldiers and the village officials. The CHR should have also considered including his findings in their investigation.
Ocular inspection is irrelevant to torture
The CHR’s evaluation after they conducted ocular inspection at the camp is not material to this case. But CHR investigators rather resolved to exonerate soldiers because: “(The detachment) is surrounded by houses of the residents and a nearby elementary school. The gates and the fences of the camp are too low and not totally covered where the passersby and neighbours can visibly see and easily hear any activity and commotion inside.”
When the CHR conducted its ocular inspection in March 2010, it was already more than three months from the time the incident happened. Thus it cannot be absolutely ascertained that the positioning of the camp and the villagers presently occupying the houses close to the camp were exactly the same when the torture happened. Also, the fact that it was never denied that the victims had been taken inside the camp for questioning, the investigators should have not bothered at: “the passersby and neighbours can visibly see and easily hear any activity and commotion inside.”
Also, apart from being held inside the camp, the victims were also taken somewhere else outside the camp where they had been used as ‘guides’ by the military. Therefore, the probability that they could have been tortured outside the camp premises is also plausible. Torture does not only happen inside the military camps nor does it ends when victims are taken outside. Also, the Anti-Torture Act of 2009 defines torture as an infliction of physical and mental suffering; meaning, these are acts not necessarily visible to ‘onlookers and by passers’.
The fact that the soldiers and the barangay officials did not contact the family members of the victims they have already committed “Mental/Psychological” form of torture violating Section 4 (b) of the Anti-Torture Act. The CHR investigators’ assessment during their ocular inspection is irrelevant in proving the existence of torture. The keeping of custody of the victims without the knowledge of their family members itself allowed torture.
Probability of the existence of crime
The role of the CHR in investigating complaints is to test that probability as to whether or not the crime has been committed. It is by application of simple logic and reason; however, the investigators’ judgement in this case lacks any sense of logic, merit and legality. The investigation had rather become a means to make a defence for soldiers and barangay officials than to establish the probability that they have committed the crime. They have deliberately ignored violations the soldiers and the barangay officials have committed on the laws on Rights of the Detainees under Custodial Investigation, the Rules on Criminal Procedure and the Anti-Torture Act of 2009.
The AHRC strongly urges the CHR to conduct a thorough review on this case. By not taking immediate action to the points mentioned above–which should already been a ground for ’cause of action’–the CHR’s credibility to investigate cases of torture would be put to a serious question. The CHR must not allow its Constitutional to be duties undermined by the incompetence and ignorance of its investigators to the law.
