禁止酷刑委员会审议菲律宾的报告（部分翻译）

禁止酷刑委员会

2016年4月28日

禁止酷刑委员会今天下午结束审议菲律宾关于为落实《禁止酷刑公约》条款采取措施的第三次定期报告。

菲律宾内政部和地方政府副部长彼得·欧文·科尔韦拉（Peter Irving Corvera）在呈交报告时表示，菲律宾1986年走出独裁政权的阴影至今已达30年，其在同一年批准了《公约》。《反酷刑法》宣布酷刑行为有罪，菲律宾在2009年11月签署了该法，之后在2010发布了落实的规章制度。其创建了跨部门委员会，主动监督人权侵犯案例的状态，包括那些涉及酷刑的案例。人权委员会和/或监察员办公室归档的案例也受到委员会的监督。菲律宾批准了《公约》的《任择议定书》，但尚未建立国家防范机制。

在随后的互动对话中，委员会专家们询问了关于酷刑案例中缺乏指控的问题，并对获知的有罪不罚文化表达了担忧。他们想了解更多现有的调查机制和人权委员会的作用，以及关于暴力侵害妇女和儿童、流落街头的儿童、儿童士兵、刑事责任最小年龄和酷刑受害者康复方案的问题。提出了关于内湖省（Laguna）羁留中心事件和达里奥·埃万杰利斯塔（Dario Evangelista）死亡的具体问题。指挥责任、监狱过于拥挤、监狱内自杀、获取律师的途径、对菲律宾海外国民的虐待和保护、公民逮捕系统和军事司法等亦是专家们提出的问题。

科尔韦拉先生在总结发言中表示，代表团带着开放的精神而来，并已做好准备以建设性的方式与委员会互动。该缔约国承诺完全根除酷刑的蹂躏。该国禁止和憎恶一切形式的酷刑，完全符合《公约》的精神。人们相信，委员会感谢菲律宾政府对此作出的努力。这个国家将根据委员会提出的每一条建议展开适当的行动。

菲律宾代表团包括内政和地方政府部、总统人权委员会、总统立法联络处、司法部、国防部、和平进程总统顾问办公室、青少年司法福利委员会、外交部、健康部、监狱管理和刑罚局、社会福利和发展部、菲律宾国家警察、移民局、武装部队、国家调查局、惩戒局、反贪腐法庭桑迪干巴彦（Sandiganbayan）和菲律宾常驻联合国日内瓦办事处代表团的代表们。

委员会将在5月3日（周二）上午10点举行下一次公开会议，审议以色列的第五次定期报告（CAT/C/ISR/5）。

报告

菲律宾的第三次定期报告（CAT/C/PHL/3）可在此查看。

Presentation of the Report

PETER IRVING CORVERA, Undersecretary at the Department of the Interior and Local Government of the Philippines, said that it was 30 years since the Philippines had stepped out of the shadows of a dictatorial regime in 1986, the same year it had ratified the Convention. The Philippines’ efforts in advancing human rights in its part of the world had not gone unnoticed. The country had made its human rights campaign an inclusive effort, which encouraged and nurtured multi-stakeholder partnership. Nonetheless, the mission of rectifying the errors of the past remained a difficult challenge, but they were being confronted and addressed. Torture did not have a place in the current system of good governance and democracy in the Philippines.

The Philippines had achieved significant milestones during the reporting period starting in 2009 and extending beyond it. The Anti-Torture Law criminalizing acts of torture had been signed by the Philippines in November 2009, followed by the issuance of its implementing rules and regulations in December 2010. In 2009, the Philippines had also enacted the Philippine Act on crimes against international humanitarian law, genocide and other crimes against humanity. The State remained zealous of its obligation to promote and protect the right of vulnerable groups to be free from torture and ill-treatment. A Magna Carta of Women, a comprehensive women’s human rights law seeking to eliminate discrimination against women, had been enacted in 2009, while in 2013, a law amending the Juvenile Justice and Welfare Act had been passed, prohibiting the placement of children in jails.

Mr. Corvera stated that in 2012, an inter-agency committee had been created to proactively monitor the status of cases of human rights violations, including those that involved torture. Cases filed in the Commission on Human Rights and/or the Office of the Ombudsman were also monitored by the committee, which was particularly mindful of the 60-day period for case action under the anti-torture law that had to be observed by institutions involved in each of the phases in case resolution. Human rights desks had been established in every jail, under the jurisdiction of the Bureau of Jail Management and Penology, with a view of immediately acting on complaints of torture by inmates and providing deterrence to such violations in jails. In 2013, a memorandum had been effected banning the use of sticks, paddles, belts and similar devices in jails which were reportedly used to impose corporal punishment on inmates. The State’s police organization had an internal mechanism to monitor its ranks. Random inspections had led to the discovery of one detainee who had been tortured by a prison official who had since been dismissed from service.

A set of guidelines for continuous trial demanded strict observance of timelines in the rules of procedure. The Supreme Court had started linking up with other government agencies to speed up the processing of cases, establishing, inter alia, an e-subpoena system, an automated notification system. Assisting courts had been formed to help overburdened courts in nearby jurisdictions with their caseloads. The Philippine Human Rights Plan for 2012-2017 pursued not only the establishment and full institutionalization of preventive and protective mechanisms on torture, but also the heightening of awareness of and respect for human rights among State agents and the general public. The State was focused on capacity-building and inter-agency and multi-sector cooperation in advancing the anti-torture campaign. Education and training were provided for law enforcement personnel, medical personnel, public officials, and other persons dealing with those detained or imprisoned.

The Philippines had ratified the Optional Protocol to the Convention, but the national preventive mechanism was not yet established. The Subcommittee on Prevention of Torture had visited the Philippines in 2015 and reported that the majority of detainees interviewed were unaware of incidents of torture in their places of detention. The Philippines saw every opportunity to evaluate its human rights record as an opportunity for improvement, and considered interactive dialogues with United Nations treaty bodies as being very valuable. The current report had gone through a validation process with various stakeholders prior to its submission to the Committee.

Questions by Experts

SAPANA PRADHAN-MALLA, Committee Expert and Co-Rapporteur for the Philippines, said that alternative reports had indicated a number of extrajudicial killings. What was shocking was the seeming long-lasting impunity, especially when it came to the military.

Laws created accountability, and the Philippines was committed to the total prohibition of torture. The question was whether torture was indeed prohibited de facto as well. There were reports that the Human Rights Commission had difficulties visiting places of detention, due to its limited budget. Was monitoring also done in juvenile detention centres, Ms. Pradhan-Malla asked. How was the access of civil society ensured?

The national preventive mechanism was foreseen to be established as a part of the Human Rights Commission. Could more details be provided in that regard?

The Expert wanted to hear why there were no prosecutions under the Anti-Torture Law. She wanted to hear about the case of children arrested in November 2015 during the Asia-Pacific Economic Cooperation Summit. The Committee was particularly concerned that there were still beatings of children in conflict with the law, who had committed minor crimes. What was the status of investigations in those cases?

Regarding the investigation mechanism, a question was asked on whether there had been any investigations based on the new complaint mechanism by prisoners. In a context with an overwhelming number of torture cases implicating police officers, how was the independence and neutrality of the investigation mechanism assured?

Fundamental legal safeguards were reportedly not always followed in practice, said the Expert. Could the delegation clarify? The fear of reprisals also seemed to be inhibiting reporting.

Some detainees had reportedly been blindfolded and had not been informed where they were being taken, while others had been paraded in their communities as criminals and subsequently kept incommunicado. Other victims had reportedly not been allowed to see doctors until their bruises and injuries started to heal. Clarifications were asked on all those allegations.

Secret detention places where torture was taking place were a matter of concern. Their existence was in clear contravention to the Convention, so the delegation was asked to provide information in that regard.

What efforts were being made to ensure access to justice for women and children under the new, praiseworthy legislation?

Concerns about trafficking in human beings, particularly the sale of children, were also brought up. The Committee would appreciate receiving data on the number of investigations.

More information was sought on the system of diplomatic assurances and the grounds for acceptance or denial of asylum applications.

The Expert also raised the issue of reproductive health and expressed concern that abortion was still banned without exception, which led to hundreds of thousands of unsafe abortions.

A question was asked on the seemingly unlimited duration of detention of terrorist suspects.

The effective implementation of anti-torture measures meant that ensuring command responsibility was pursued. Were there any such examples in practice?

ESSADIA BELMIR, Committee Expert and Co-Rapporteur for the Philippines, raised the issue of training. To what extent after the ratification of the Convention were people dealing with its implementation properly prepared for their tasks? The Committee in its previous concluding observations had focused on that issue, particularly vis-à-vis behaviour towards detainees.

While a monitoring mechanism had been established, not much seemed to have changed, as persons deprived of their liberty were systematically exposed to various forms of torture. There were forms of torture applied to many parts of the body and they should be called atrocities. Generally speaking, the system of training did not work, stressed Ms. Belmir. The judicial and penitentiary services were not given proper conditions to conduct their work and properly implement the Convention.

Subjects in prisons seemed to be exposed to mental anguish so that confessions could be obtained from them. Such confessions should not be accepted as evidence in courts.

Access to lawyers was also limited, said Ms. Belmir, and proceedings in courts were slow. People were starting to lose faith in the justice system as it was slow and perceived as corrupt.

The National Human Rights Commission was an important institution, but it did not have access to all places of detention, particularly those held by the military. Its power ought to be strengthened.

Ms. Belmir raised the case of the Laguna secret detention facility, where the police were reported to have tortured detainees for fun. The Human Rights Commission had helped shed light on the case. More information was needed. Another case was that of the alleged torture of three persons persecuted by the military regiment 730. The Expert also brought up the issue of Dario Evangelista, who had been tortured and whose body had been found in a river. How did the State party ensure that justice was carried out in such cases, and how did the forensic labs help in that regard?

The Philippines had not yet set up a proper clarification process for crimes before 1987. Truth had to be established first so that people could be rehabilitated.

The Magna Carta for women’s rights was a very welcome development. However, women could not exercise their crucial rights to abortion and family planning. The State party was urged to provide for exceptions under the current law.

It would be good if the age of criminal responsibility was raised from 15 to 18. Detained children went through experiences which were not acceptable, stressed Ms. Belmir. The issue of children in militias was also brought up.

A question was asked about the therapeutic community programme, aimed at changing the behaviour of detainees.

The Expert inquired whether someone convicted of the crime of torture could be released from prison if he admitted his offence. Was that really viable?

What protection measures were there for human rights defenders in the State party?

Another Expert raised the issue of violence against women and asked for clarifications on the figures provided in the State party’s report. Were there indeed more cases of violence against women now, or was it rather that the law was now better known and applied?

Detention conditions for women were not addressed the same way that they were addressed for men, the Expert said. There were different sets of rules, for example, when it came to conjugal visits to male and female prisoners.

Was the State party determined to convict perpetrators of torture, enforced disappearances and extrajudicial killings? Had trained prosecutors indeed been sent to all parts of the country?

An Expert asked the delegation about making public reports on victims of torture. Did that require a victim’s consent? He also wanted to know whether monitoring visits to prisons could be unannounced.

A question was raised about the 2012 act defining enforced disappearances, which was a very positive step.

A major problem in the Philippines was overcrowding in the country’s prisons, which had exceeded 300 per cent, the highest in Asia. The bad living conditions in those prisons could only be imagined. Measures applied by the Government were apparently not sufficient. The Subcommittee on Prevention of Torture had publicly urged the authorities to urgently address the chronic issue of overcrowding.

Suicide was not listed as one of the leading causes of death among detainees, noted the Expert. Was that indeed the case?

Blindfolding of suspects during custodial investigations was proscribed under police rules and regulations, but in at least one case, a judge had overlooked those circumstances when issuing a verdict.

The Expert also wanted to hear about practical results of the programme for the rehabilitation of torture victims.

Despite the growing number of complaints on torture, not one person was known to have been convicted, noted another Expert and asked about the major reason for such a contradictory phenomenon.

The age of the minimal criminal responsibility was brought up by an Expert, who said that the recommendation by the Committee on the Rights of the Child had been not to have that age lowered. Could the delegation provide information on implementing the recommendation?

Concerning children involved in armed conflict, a question was asked about their reintegration in society. What measures had been taken to implement that earlier recommendation, asked the Expert.

The delegation was asked to provide more precise information regarding enforced disappearances.

Could private persons indeed arrest other private persons without any warrant, as was reported? What was the State party doing to prevent such unlawful arrests?

The Expert asked about the funding and independence of the future national preventive mechanism, which should, at least, be a separate department within the Human Rights Commission.

In the aftermath of the conflict in the Philippines, what measures had been taken to integrate various communities in the national police forces?

Another Expert praised the Philippines for adopting anti-torture legislation and acknowledging the contributions by non-governmental organizations.

How often had various tools, such as sticks and belts, been used as means of torture in prisons before being banned, and were there any reports of their usage after the ban?

Despite the great legislative progress made by the Philippines, in practice there seemed to be troubling evidence of translating legislation into practice. How come there had been no prosecutions of cases of torture? What further measures could be taken in that regard to ensure the practical impact of the existing legislation?

The Expert also raised cases of Dario Evangelista and the secret detention centre in Laguna and asked whether anyone would be held to account in either case.

The Army should be doing more to fight against torture and bring those suspected of torture to justice. Some examples, however, indicated that this was not the case.

What kind of government aid was provided to women who suffered abuse abroad, the Expert asked?

The delegation was asked about measures taken to prevent sexual violence in prisons. What monitoring measures were in place? Was it possible that there had been only one case of a sexually abused male prisoner?

Were there any exceptions allowing for abortions in cases of rape or incest?

Medical doctors were reportedly intimidated by the police and afraid to document cases of torture in a safe way. What could be done to strengthen the evidence and could medical doctors be better protected? Perhaps a statement was needed from a very high level on the need to wholeheartedly combat torture.

There was a need for an overhaul of the prison system to ensure that detainees would not spend years imprisoned without convictions?

The Expert inquired whether there were plans to expand the access of non-governmental organizations to prison monitoring. The good intention was undoubtedly there, but more ought to be done on the implementation.

Replies by the Delegation

The delegation said that the Government was steadfast in protecting rights and promoting interests, especially of the most vulnerable part of the society. The Government was committed to promoting, protecting and fulfilling human rights. It deeply valued human rights.

There was no culture of impunity in the Philippines; policies and laws were in place to ensure that violators were punished, and mechanisms were in place to deter would-be violators. The justice system was functional, an example of which was the fact that the Chief Justice of the Supreme Court had been impeached. The system was not perfect, but it was definitely not dysfunctional either.

It was stressed that good governance was a centrepiece of the current State administration. Torture had no place in a democratic and civilized society and should be eradicated.

Regarding the effectiveness of mechanisms, the delegation stated that the Ombudsman and the Commission of Human Rights were both independent observers. The inter-agency committee was an effective mechanism leading to improvement and important policy changes. It had looked into numerous reported incidents of torture and enforced disappearance. Prosecutors did not participate in the case build up. Composite teams of prosecutors and investigators were created accordingly; 68 special investigation teams had been formed. Workshops were held to strengthen links between prosecutors and investigators. Synergy and cooperation were promoted between security agencies and non-governmental organizations, all with the view of resolving all outstanding cases of enforced disappearance and ill-treatment.

The delegation informed that just recently the Anti-Torture Act had been applied in the case of a police officer.

It was explained that the Philippines was primarily a source country for trafficking and forced labour. Efforts were being made to hold Government officials criminally accountable for trafficking offences, while shelters and protection resources would be further increased. The Philippines’ efforts were acknowledged and seen as a good model for enhancing the protection of citizens outside of national boundaries.

The Department of Justice was the central authority dealing with extradition and was in charge of diplomatic assurances that those extradited would not be subjected to torture.

On the lack of access to adequate medical examination, it was explained that the Department of Health, together with a non-governmental partner, had commenced training of medical personnel on the application of the Anti-Torture Law. So far, hundreds of medical staff had been trained. The next step would be the review of the training syllabus on mainstreaming human rights. Victims themselves, the next of kin, their lawyers and suspected perpetrators could have access to the medical records.

The delegation explained that in 2014, a tripartite agreement had been signed on the rehabilitation of victims. The participation of the civil sector could facilitate the inter-agency process. Service fees for medical examinations, rehabilitation and treatment were covered by the authorities and were free of charge, as required by the Anti-Torture Law.

The fear of reprisal against medical examiners was dealt with by providing privacy, documentation, proper facilities and recording to medical examiners, explained the delegation.

Normally, mental patients would preferably be treated without confinement. However, if necessary, patients would not be restrained for more than four to six hours; if that period was to be extended, a doctor would need to sign the order. Patients could be restrained only on beds. In the first few days of confinement, patients were kept in closed wards and then gradually transferred to more open ones. The newly rehabilitated pavilions had higher ceilings, bigger windows and better ventilation.

The Philippines was the first Asian country to have acceded to the 1951 Refugee Convention. It had its own refugee and stateless persons mechanism. The majority of asylum applications were accepted. The refugee determination procedure ordered the release of the asylum applicant from detention once his request was positively resolved. The Government strictly abided by the principle of non-refoulement.

From 2010 to 2015, 18 complaints of human rights violations in jails had been recorded. Human rights desk officers ensured the security and safety of complainants; they also initiated advocacy measures to increase awareness among penitentiary staff. Twelve of the 18 cases had been already resolved, six of which had led to convictions and penalties.

On jail overcrowding, it was explained that the State party’s tougher policies in certain areas had led to the increase of the prison population. Along with other reform measures, the authorities had embarked on a jail decongestion programme, which included constructing new facilities and considering alternatives to imprisonment.

Family visits for inmates of the two sexes were not treated the same way, which was being discussed with the view of having a balanced approach. The number of psychologists in prisons was not satisfactory, and efforts were being made to increase it.

In 2015, there had been 456 prison deaths due to illness, while there had been less than a dozen violent deaths, some of which had been suicides. In all those cases, persons on duty had been investigated to establish their liability.

No violence or unnecessary force should be used when making an arrest, said the delegation. Only judges were authorized to issue arrest warrants, but that was not needed if the person was already in detention. All police personnel had to inform arrested persons of their rights, including the right to counsel and physical and mental examination. Detainees could be visited by all accredited institutions and non-governmental organizations, as well as their immediate family members. Inquest officers had to take into consideration all evidence collected by the police, and if the arrest was found to be unlawful, the detainee should be released. Persons could be arrested without warrant if they were committing, about to commit or had just committed an offence, or had escaped from a penitentiary institution. The system of citizen’s arrest also existed in the Philippines.

The delegation explained that the principle of command responsibility was instituted in the Philippines. Commanders were fully investigated, and possible cover-ups were always looked into. A police chief inspector had been held accountable for the case of Laguna. If subordinates were involved in three incidents without being disciplined, the commanding officer would be dismissed.

Any confession obtained under torture was deemed inadmissible in courts. A mere claim of torture would not suffice; evidence was needed if the confession was to be rejected. All acts of torture – physical or mental – were classified as criminal offences, stressed the delegation. The Government believed that the prosecutors should be trained to use circumstantial evidence, because direct evidence was not the only matrix from which trail the court could draw its conclusions.

There were provisions for compensation provided to the victims of torture, which amounted to 10,000 pesos. An amendment was needed in order to make that sum more flexible. Strict time limits were in place for delivering the detained person to the place of detention.

With regard to the questions on awareness-raising and alleged knowledge gaps of detainees, a delegate said that detainees were given a thorough orientation on their rights as soon as they arrived to a facility.

The authorities had an elaborate network of receiving reports of violence against women. The notable increase of reported incidents was attributed to the establishment of more than 1,000 women and children protection desks in police stations; a continuous information campaign; and the establishment of a referral system in local government units. Various types of assistance were provided to abused women.

The Philippine Congress had enacted a law on a national policy on reproductive health in 2012; all persons could now choose and make decisions for themselves in line with their beliefs. Universal access was provided to quality non-abortive medical services. Modern contraception services and supplies were also provided, the use of which had increased. Women were informed about possible side effects of each method. Abortion was illegal, but all women needing care for post-abortion complications should be treated in a humane, non-judgmental and compassionate manner. When the life of a woman was at risk, an abortion could be performed.

The Department of Foreign Affairs was in charge of the protection of the rights and promotion of the interests of Filipinos overseas. A global network of more than 80 diplomatic missions with more than 1,000 staff was at the service of the Filipino diaspora. Abused Filipina women abroad were put in protective shelters managed by Philippines embassies or consulates. The legal assistance fund provided by the Congress was used to cover legal expenses of Filipino nationals in other countries. Training on how to deal with victims of trafficking was regularly conducted for Filipino Foreign Service personnel.

Turning to children’s rights, the delegation explained that the monitoring capacities of the monitoring council had been strengthened. When identified, minor prisoners were transferred from prisons to juvenile centres. The anti-rape law prohibited sexual violence against male persons as well. It was illegal to arrest street children, who were considered to be children at risk and a vulnerable group. Street families were taken to various government-managed facilities. Former child combatants were provided a chance to reintegrate into society, through social welfare and development offices. The recruitment of children by armed rebel groups remained a matter of concern.

Lowering the minimum age of criminal responsibility from 15 was opposed by the Juvenile Welfare Council, which was now working with the Congress in that regard.

Follow-up Questions

SAPANA PRADHAN-MALLA, Committee Expert and Co-Rapporteur for the Philippines, said that it could not be expected from a person who was a victim to provide evidence of torture. Details were demanded for cases when commanding officers had been held accountable.

What steps were taken to ensure the immediate implementation of administrative order 35? What were the criteria for releasing prisoners, asked the Expert.

A question was asked on a lead agency in rehabilitation programmes.

The Expert also wanted to know about the possibility of the decriminalization of abortion.
Conditions in several homes hosting children in conflict with the law were worrisome and they should be closed.

Had the Laguna centre been closed, asked Ms. Pradhan-Malla. Another Expert inquired whether it was true that none of the officers involved had been prosecuted. Was demotion considered a proportionate sanction for command responsibility?

ESSADIA BELMIR, Committee Expert and Co-Rapporteur for the Philippines, raised the question of distinction between citizens and non-citizens when arrests were made.
The existence of training programmes was commendable, but results of those trainings also needed to be demonstrated. The judicial system seemed not to be functioning efficiently enough. Fair trial began at the moment of arrest, she stressed. Arrested persons ought to be provided with critical information a priori so that they could avail themselves of their rights from the beginning.

More details were asked about the conditions of the application of military justice and the burden of proof when claiming that one had been subjected to torture.

The issue of blindfolded torture victims was brought up by another Expert.

An Expert asked about the guarantees against arbitrariness of the system of citizen’s arrests.

The national preventive mechanism was an international treaty obligation and it requested dedicated staff. A specific budget and immunities for its staff within the Human Rights Commission were recommended.

A question was also asked about building trust between the police and local communities.

An Expert came back to the issue of impunity. How many investigations had been opened and how many people had been held responsible?

Who was monitoring and checking up on the use of restraints on the mentally sick?

Overcrowding in prisons could lead to a rise in diseases, said another Expert. Was general mortality in penitentiary institutions monitored? How were the causes of deaths in custody determined?

Replies by the Delegation

The delegation explained that the Philippines was firm regarding the prohibition of corporal punishment. A common thread among several currently proposed laws was caring for children. An information campaign in that regard was underway.

A bill to criminalize extrajudicial killings had not moved forward over the previous months and was unlikely to go ahead under the current Congress. In any case, it would be introduced in the next Congress. A bill on prison rape had been introduced in the previous Congress, and was being currently expanded and the work would continue under the next Congress.

The State fully supported the establishment of the national preventive mechanism, stated the delegation.

The secret detention facility in Laguna no longer existed, the delegation emphasized. If the Committee could provide information on other alleged secret detention facilities, such claims would be immediately investigated.

The application of the system of citizen’s arrest was extremely rare.

The search of various items which could cause harm was thoroughly performed, and, if found, such items were confiscated by the authorities.

Concluding Remarks

PETER IRVING CORVERA, Undersecretary at the Department of the Interior and Local Government of the Philippines, thanked the Committee for the fruitful exchange. The delegation had learned a lot from the Experts. The delegation had come in an open spirit, ready to engage with the Committee in a constructive manner. The State party was committed to eradicating the scourge of torture. The Philippines could not be a worldwide champion of torture if its own record was considered to be suboptimal. All forms of torture were prohibited and abhorred, all within the spirit of the Convention. It was believed that the Committee appreciated the efforts made by the Philippines in that regard. The State would properly act on each of the Committee’s recommendations.

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