PHILIPPINES: Torture case analysis--investigation report exonerating soldiers is questionable
November 22, 2010
The Asian Human Rights Commission (AHRC) has obtained a copy of an
Investigation Report
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.
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About AHRC: The Asian Human Rights Commission is a regional
non-governmental organisation monitoring and lobbying human rights
issues in Asia. The Hong Kong-based group was founded in 1984.