Dear friends,
The Asian Human Rights Commission (AHRC) writes to inform you that the local police have concluded that it will not prosecute policemen accused of torture because the victims’ testimonies are hearsay. They will not take action unless they are “formalized as complaint”. We earlier asked for an investigation on the victims allegations that they were tortured in June 2005. No investigation was conducted until we made our appeal. But when the police did investigate they blamed the torture victims for not filing a complaint and placed the burden on them to provide evidence for their allegations.
UPDATED INFORMATION:
On October 8, 2012, we issued an appeal asking for the allegations of torture victims Hamsa Pedro and Alex Salipada, whom the police in General Santos City illegally arrested, detained, tortured and falsely charged in June 2005, to be thoroughly investigated. We also asked for the prompt conclusion of the trial of the fabricated charges on them in court. For details, see: AHRC-UAC-178-2012.
In a letter dated March 19, 2013, Police Chief Superintendent Francisco Don C. Montenegro, acting director for Investigation and Detective Management (DIDM) of the Philippine National Police (PNP), has informed that:
“…the Acting Regional Director of the Police Regional Office 12 (PRO 12) had already conducted an investigation relative to the said cases. Accordingly, after investigation, their Office is of the view that they cannot institute administrative complaints against the unidentified personnel in the absence of testimonial or documentary evidence to support the alleged imputation.”
P/Chief Supt. Montenegro relied on the investigation report by P/Supt. Emmanuel Peralta, writing on behalf of the PRO 12 Acting director. In concluding his report, P/Supt. Peralta wrote strongly that:
“…this Office will not and cannot institute administrative complaints against unidentified PNP personnel in absence of a testimonial or documentary evidence to support the alleged imputations. (para 8)”
P/Supt. Peralta’s decision not to initiate action against the policemen is purely grounded on technical and procedural reasons. They declared the victims’ testimonies as hearsay to justify the absence of testimonial evidence and documents; and they blamed the victims for their unwillingness to pursue their complaints, for not putting them in writing and for not filing a complaint earlier. He concluded that:
“…when they were asked whether they had formalized their complaint and filed it at proper government agency after the alleged torture in 2005, they both replied negatively, and when asked whether they are both willing to execute an affidavit of complaint against those perpetrated the alleged acts of torture, they said that they are not willing to execute and to pursue any action as they did not identify and recognize the perpetrators. Thus, in the absence of proof and sworn testimonies of complaints and their witnesses, the allegations of torture against them remained hearsay. (para 5)”
AHRC’s comments and observation:
Confessional evidence and documents are not absent
The claim of police investigators on the absence of testimonial or documentary evidence is incorrect. In their own report, the police have also confirmed: “Both of them replied affirmatively and confirmed what were written and reported,” which means nothing in the content of the appeal were denied or rejected, when they asked the victims of its accuracy as it is written and reported. Unless the victims denies or rejects the content of the appeal, as a documentation based on the first hand interview of the victims reduced in writing, it in effect could serve as testimonial evidence.
In torture cases the victim’s person is itself body of evidence of the commission of torture inflicted on him. It explains why forensic evidence, indicating physical of torture; and psychological assessment, evaluating the psychological impact on torture victim, should have been collected promptly and made available to torture victims to have the possibility of torture cases to progress in court.
In Pedro and Salipada’s case, to expect them to produce medical certificates to support their allegations could not be reasonable. It is because the police themselves deliberately suppressed the evidence from coming out. In their testimony, Pedro revealed the doctor did not even examine his body, and while the doctor checked Salipada, he did not even get the result of his medical examination.
See Pedro’s interview, “Under torture, I thought I was dead” here; and Salipada’s interview, “They tortured me by water boarding“, here.
Torture is not an ordinary crime; thus, in affording effective remedy the procedural requirements must not impede or obstruct the victims’ right to obtain an effective remedy, and for the perpetrators to be held accountable (See UN Doc. CAT/C/GC/3, General Comment No. 3 of the Committee against Torture, 19 November 2012, at para. 38-39).
Policemen were identified, not unidentified
The perpetrators have, in fact, been identified. One of them was Sr. Supt. Alfredo Toroctocon, former director of General Santos City Police Office (GSCPO), and the rest were policemen acting under his command. But despite identifying them, P/Supt. Peralta ignored this by insisting the perpetrators were “unidentified PNP personnel”. Also, in P/Supt. Peralta’s investigation report nothing was mentioned that they had Sr. Supt. Toroctocon and his men also investigated over the allegations.
Rather, they put the blame on the victims for ‘not recognizing the perpetrators’ to exonerate the policemen and to reject any prosecution of them. To expect the victims to identify the perpetrators is not also reasonable because: first, the police did not introduce themselves when they illegally arrested and detained them; second, they were kept in solitary confinement and blindfolded in police custody.
The AHRC is not surprised by the result of this investigation and the bias it manifests. Under the PNP’s organizational structure, the GSCPO is under the direct supervision and command responsibility of the PRO 12; and in practice operations like arresting suspects of bombing, both units worked together. We have documented cases in the past where both the GSCPO and PRO 12 committed acts of torture.
For cases of torture in GSCPO, please see here: Article 2, “Special Report: Torture in the Philippines & the unfulfilled promise of the 1987 Constitution” at pp. 37-38; 83-84.
Without protecting the complainant, no effective complaint can be filed
P/Supt. Peralta’s understanding of what is a complaint and a complainant is misplaced. Complaint is documentary evidence for police and prosecution to cause action. The complainant meanwhile is a victim or a person making the complaint.
In this case, the absence of a complaint by the victim does not mean the absence of a complainant as well. In fact, for these victims not to file a complaint is rather a question on part of the investigating authorities–here the police–as to why the victims are not filing or are unwilling to file a complaint for prosecution.
Certainly, section 9 (c) of the Anti-Torture Act of 2009, it places the responsibility on the government in ensuring that when victims testifies or complaints of torture, there must be a protection made available to them. However, in this case, it is clear the police investigator neither offered nor afforded protection to the victims. It explains why the torture victims are not encouraged to file complaint.
To expect from torture victims, who are still jail, to file complaint of torture, is also not reasonable unless they are given protection and out from risk and threat.
Thank you.
Urgent Appeals Desk
Asian Human Rights Commission (AHRC) (ua@ahrc.asia)
