Human Rights of Persons Deprived of Liberty (Atty. Jose Manuel i. Diokno)

8/3/2019 Human Rights of Persons Deprived of Liberty (Atty. Jose Manuel i. Diokno)

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HUMAN RIGHTS OFPERSONS DEPRIVED

OF LIBERTY

Dean Jose Manuel I. Diokno

16 November 2010


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The human rights of persons deprived of

liberty are protected by:

The Bill of Rights of the1987 Constitution;

Domestic laws; and

International humanrights instruments.


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The Bill of Rights:

Section 1. No person shall

be deprived of life, liberty,

or property w ithout due

process of law, nor shallany person be denied the

equal protection of the

laws.


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Article III, Section 12: Persons under investigation for an

offense have the follow ing rights: To remain silent;

To competent and independent

counsel; To be provided w ith counsel if they

cannot afford one;

Against waiving these rights exceptin writing and in the presence ofcounsel; and

To be informed of these rights;


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Persons under investigation for an offense also

have the following rights:

Not to be tortured, forced, threatened,

intimidated, or subjected to any otherm ean s w h i ch v i t i a t e t h e f r e e w i l l ;

Not t o be kep t i n secr e t de t en t ion p laces,

so l i t a r y , in com m un icado, o r o t he r s im i l ar f o r m s o f d et en t i on .

Any con fession o r adm ission obtained

in violation of this section shall be

i nadm issib le in ev idence aga inst h im .


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Rights of persons deprived of liberty:

1. The right to bail, except for offenses

punishable by r eclusion pe rpe t ua , w hen ev idence o f g u i l t i s st r ong , and even

w h en t h e p r iv i leg e o f t h e w r i t o f h ab eas

co r pu s i s suspended . 2. The right to avail of the privilege of

the writ ofhabeas co r pu s to secure ones

liberty, except when it is validlysuspended.


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Rights of persons deprived of liberty:

3. Not to be detained solely by

reason of ones political beliefs.

4. Not to be subjected toinvoluntary servitude (except as

punishment for a crime whereone has been duly convicted).


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Rights of persons in all criminal

prosecutions:

1. To due process of law;

2. To be presumed innocent until thecontrary is proved;

3. To be heard by himself and

counsel; 4. To be informed of the nature and

cause of the accusation against him;

5. To have a speedy, impartial, andpublic trial;


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Rights of persons in all criminal prosecutions:

6. To meet the w itnesses face to

face; and

7. To have compulsory process to

secure the attendance ofw itnesses and production of

evidence in his behalf.


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8. Not to be a w itness

against himself:

Any confession or

admission obtained inviolation of this sectionshall be i n adm issib le i n

ev iden ce aga inst h im.


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9. To a speedy d isposi t ion o f t he i r cases

before all judicial, quasi-judicial, oradministrative bodies;

10. Not to be subjected to c rue l ,

d eg r a d in g o r i n h u m an p u n ish m en t ;

11. Not to be meted out the dea th

pena l t y unless, for compe l l i ng

r easons i nv o l v i ng h e inou s cr im es , the

Congress hereafter provides for it.


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Domestic Laws Protecting the Human

Rights of Persons Deprived of Liberty:

R.A. 7438, Code ofCustodial Investigation;

R.A. 9745, Anti-Torture

Law;

Article 32, Civil Code;

Among others.


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R.A. 7438, Code of Custodial Investigation:

Sec. 2(c):

The cus tod ia l i n vest i gat i on r epo r t shall be r ed u ced t o w r i t i n g by the

investigating officer [B]efore [it] is

signed or thumbmarked i t sha l l be r ead and adequ a te l y exp la ined t o

h im by h i s coun se lin t he l ang uage

or d ia lect known to [him/ her],o t he rw i se such i nvest i gat i on repo r t

sha l l be nu l l and vo id and o f no

ef f ect w ha t soeve r .


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R.A. 7438, Sec. 2(e):

An y w aiv er by a person arrested or

detained under the provisions o fAr t i cle 12 5 o f t h e Rev ised Pena l Cod e,

or under custodial investigation, sha l l

b e in w r i t i n g a n d si g n ed b y su ch

pe r son in t h e p r esence o f h i s cou n se l ;

o t h e r w i se t h e w ai v er s h al l b e n u l l an d

vo id and o f n o ef f ect .


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The Anti-Torture Law

R.A. 9745


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R.A. 9745

Torture as a crime sh a l l no t abso rb o r sha l l no t be abso rbed by any o t he r cr i m e

o r f e lony com m i t t ed as a con sequ ence, o r as a m eans in t he condu ct o r com m ission

thereof.


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R.A. 9745

Torture shall be treated as asepar a t e and i nd epen den t

cr im ina l act w hose pena l t i es

sha l l be im posab le w i t h ou t p r ej ud i ce t o any o t he r cr i m i nal

l i ab i l i t y provided for by domesticand international laws.


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I n o r d er n o t t o d ep r ecia t e t h e cr i m e

o f t o r t u r e, p er s on s w h o h a v e

co m m i t t ed an y act o f t o r t u r e sh a l l n o t

benef i t f r om any special am nest y l aw

o r si m i lar m easu r es t h a t w i l l h a v e t h e

ef f ect o f ex e m p t i n g t h em f r o m an y

cr im ina l p roceed ings and sanc t i ons . Sec. 16, R.A. 9745


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Section 7.Prohibited Detention:

Secret detention places, solitary

confinement, incommunicado orother similar forms of

detention, where torture may

be carried out w ith impunity,

are hereby prohibited.


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List of Detention Centers and Data on

Prisoners:

The PNP , AFP and other law

enforcement agencies shall make anup da ted l i st o f a l l det en t i on cen t er s and f aci l i t i es un de r t he i r r espect i ve

j u r i sd i ct i ons w i t h t he co r r espond in g da t a on t he p r i sone rs or de ta inees i nca rcer a ted o r de ta ined t he re in

su ch as , among others, nam es, da te o f a r r est and i nca rcer a t i on , and t he cr i m e o r o f f en se co m m i t t ed .


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Th is l i st sh a l l be m ade ava i lab le t o

t h e p u b l ic a t a l l t i m es , w i t h a co p y o f

t he com p let e l ist avai lab le at t he

r espect i ve na t i ona l headqu ar t e rs o f

t h e PNP an d AFP.


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A copy of the complete list w ill also

be submitted by the PNP , AFP and allother law enforcement agencies to

the CHR [to be periodically updated

w ithin the first 5 days of every month

at the minimum].


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Every regional office of the PNP

also maintain a similar list far alldetainees and detention facilitiesw ithin their respective areas, and

shall make the same available to thepublic at all times at their respectiveregional headquarters, and submit acopy, updated in the same manner, tothe respective CHR regional offices.


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Section 12.Right to Physical, Medical and

Psychological Examination:

Befo r e an d af t er i n t er r o g at i on ,

every person arrested, detainedor under custodial investigationshall have the r i gh t t o b e

in f o r m ed of h is/ h er r i gh t t o d em an d p h y si ca l ex am i n at i on b y an i n d e p en d e n t an d co m p et en t d o ct o r o f h is/ h er o w n ch o ice .


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I f such person can n o t a f f o r d t h e

ser v i ces o f h is/ h er o w n d o ct o r ,h e / sh e sh a l l h e p r o v i d ed b y t h e S ta te with a competent and

independent doctor to conductphysical examination.


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The State shall en d e av o r t o

p r o v id e t h e v ict im w i t h psych o log ica l eva lua t ion i f avai lab le und er t he

c i r cums tances . I f t h e p er so n a r r est ed i s a fem a le, sh e sh a l l b e a t t en d e d t o p r efe rab l y b y a f em a le doct o r .


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Any person arrested, detained or

under custodial investigation,including his/ her immediatefamily, shall have the r i g h t t o

im m ed iat e access t o p r oper and ad eq u a t e m ed i ca l t r eat m en t .


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The physical examination and/ or

psychological evaluation of the victimshall be contained in a m ed ica l r epo r t ,duly signed by the attendingphysician, which shall include in

detail his/ her medical history andfindings, and w h ich sha l l he at t ached t o t he cus tod ia l i n vest i gat i on repo r t .

Such report shall be con side r ed a pub l ic docum en t .


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Any person who does not wish to avail of

the rights under this provision m ayk n o w i n g l y an d v o l u n t ar i l y w ai v e su ch

r i g h t s i n w r i t i n g , ex e cu t ed in t h e

p r esence and assi st ance o f h i s/ he r counse l .


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Article 32, Civil Code


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Any public officer or employee, or

any private individual who directly orindirectly obstructs, defeats, violates or inany manner impedes or impairs any of thefollowing rights and liberties of another

person shall be liable to the latter fordamages: (1) Freedom of religion;

(2) Freedom of speech;

(3) Freedom to write for the press or tomaintain a periodical publication;

(4) Freedom from arbitrary or illegaldetention;

Article 32, Civil Code:


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(5) Freedom of suffrage;

(6) The right against deprivation of propertywithout due process of law ;

(7) The right to ajust compensation whenprivate property is taken for public use;

(8) The right to the equal protection of thelaws;

(9) The right to be secure in ones person, house,

papers and effects against unreasonablesearches and seizures;

(10) The liberty of abode and of changing thesame;


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(11) The privacy of communication andcorrespondence;

(12) The right to become a member ofassociations or societies for purposes notcontrary to law ;

(13) The right to take part in a peaceableassembly to petition the Government forredress of grievances;

(14) The right to be free from involuntaryservitude in any form;

(15) The right of the accused against excessivebail;


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(16) The right of the accused to be

heard by himself and counsel, to beinformed of the nature and cause ofthe accusation against him, to have a

speedy and public trial, to meet thew itnesses face to face, and to havecompulsory process to secure theattendance of w itnesses in his behalf;


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(17) Freedom from being compelled

to be a w itness against ones self, orfrom being forced to confess guilt, or

from being induced by a promise of

immunity or reward to make such

confession, except when the person

confessing becomes a State w itness;


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(18) Freedom from excessive fines, or

cruel and unusual punishment, unlessthe same is imposed or inflicted in

accordance with a statute which has not

been judicially declared unconstitutional;

(19) Freedom of access to the courts.


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Article 32 also provides that: The aggrieved party has a right to commence

an entirely separate and distinct civil action for

damages and other relief.

The civil action will proceed independently ofany criminal prosecution and is proved by a

preponderance of evidence. The indemnity will include moral damages.

Exemplary damages may also be adjudicated.

The responsibility herein set forth is notdemandable from a judge unless his act oromission constitutes a violation of the PenalCode or other penal statute.


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Article 32 fundamental to democracy

and a fundamental innovation

The framers of the Civil Code describedArticle 32 as o n e o f t h e f u n d a m en t a l a r t i cles i n t r oduced in t he New Civ i l Code to im p lem en t dem ocracy .

The Supreme Court in one case declared

that Article 32 was clearly intended tocreate a distinct cause of action forviolations of constitutional rights,regardless of the defendants motive or

intent. Th is is a fun dam en t a l inn ova t ion in t he Civ i l Code xxx


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Article 32 and human rightsArticle 32 is most appropriate for human

rights cases because it was i n t ended

p reci se ly t o p ro t ect i nd i v i dua l r i gh t s . It isalso the m o st ad v a n t ag eo u s because--

Article 32 does not recognize the defense of

good faith or lack of malice; and Article 32 imposes liability not only on persons

d i rec t l y responsible for violating anothersbasic rights but also on anyone who

i nd i rec t l y obstructs, defeats, violates or inany manner impedes or impairssuch rights.


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Good faith not a defense.

Public officials in the past have

abused their powers on the pretext of

justifiable motives or good faith in the

performance of their duties. Precisely,

the object of the Article is to put an end

to official abuse by the plea of good

faith.


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Persons indirectly responsible also liable.

Article 32 imposes liability on

anyone who directly or

i nd i r ec t l y obstructs, defeats,

violates or in any manner impedesor impairs the enumerated rights.

This is where the concept of

command responsibility comes in.


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Aberca v. Ver, G.R. No. L-69866, 15 April 1988:

[Under] Article 32 [of the Civil

Code]it is not the actor alonewho must

answer for damages[but also]the

person indirectly responsibleBy t h i s

p r ov i sion , t he p r i nc ip le o f accoun t ab i l i t y o f

pu b l i c o f f i c ia ls und e r t he Cons t i t u t i on acqu i res added m ean in g and a l a rge r

d im ension . No l onger m ay a supe r i o r

o f f i cia l r e lax h is v ig i l ance o r abd icat e h is

du t y t o sup e rv i se h i s sub o r d ina t es, secu r e

i n t h e t h o u g h t t h a t h e d oes n o t h a v e t o

answ e r f o r t he i r t r ansg ressions


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Obra v. CA, G.R. No. 120852 October 28,

1999:

Pet i t i o n er Du m p i t cl ai m s that

unlike the superior officers in Aberca, h eh a d n o k n o w l ed g e of t h e act s o f h i s subo rd i na tes since they did not file an"after-incident report" which was thestandard procedure in these cases. Heclaims that a l l he d id w as t o endo r se t he request t o Maj o r Densen , theIntelligence Officer of RUC-1, tocoordinate with the BMGS and implementthe order accordingly.


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These contentions have no merit. It was

sufficiently provedthat t he se izu r e o f t he

t r u ck w as e f f ect ed upon t he o rde rs o f

pe t i t i oner Dum p i t , act i ng on t he request

o f pe t i t i oner Ob r a . Private respondents'

witnesses testified that when they asked themilitary men who stopped them upon their

entry to the "Mamakar" mining site, the

soldiers told them that they were acting uponthe orders of "the general in Camp Dangwa."

Sgt. Morales even issued a certification that

the truck was seized "as per orders." XXX


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It was clear from petitioner Obra's

letter to petitioner Dumpit thatassistance was sought for the seizure ofprivate respondents' truck. Thus, w h e n p et i t io n er Du m p i t en d o r sed t h e r equest t o h i s subo r d i na t es f o r p r oper act i on , t he re cou ld no t have been any o t he r fo r eseeab le

consequence bu t t he even t ua l se izu r e of t he t r u ck .


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Domestic Remedies that Protect the Human

Rights of Persons Deprived of Liberty:

Writ ofh abeas co r pu s ;

Writ of injunction;

Writ ofa m p a r o ;

Writ ofh abeas da t a .


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International human rights instruments: Universal Declaration of Human Rights (1948); International Covenant on Economic, Social andCultural Rights (1976); International Covenant on Civil and Political

Rights (1976); Declaration and Action Programme on theEstablishment of a New International Economic

Order (1974); Economic Rights and Duties of States (1974).


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The Universal Declaration of Human Rights

Not a treaty but a proclamation of

basic rights and fundamentalfreedoms.

The basi c i n t ern a t i ona l st at em en t o f t he ina l i enab le and inv io lab le r i gh t s o f a l l m em b er s o f t h e h u m an f a m i ly .

Th e co m m o n st an d a r d o f a ch iev em en t fo r a l l peop les in a l l na t ions .

U.N. Human Rights Fact Sheet No. 7


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The Universal Declaration of Human Rights

First time that all the Statesagreed, in a single document, ona comprehensive catalogue ofthe rights of the human person.

I n t h e Un i t ed N at io n s, t h e Declara t i on h as an au t ho r i t y su r passed on l y by t he [ U.N .] Char te r . "

The International Covenant on Economic, Social and


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,

Cultural Rights (ICESCR) and the International

Covenant on Civil and Political Rights (ICCPR)

Treaties -- binding on the States that

have ratified them. Adopted by General Assembly in 1966;

entered into force in 1976.

The Philippines signed both Covenants in1966; ratified the ICESCR on 1974 andthe ICCPR on 1986, both without

reservations.


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Together w ith the Universal

Declaration of Human Rights,the ICESCR, ICCPR and itsOptional Protocols form the

International Bill of HumanRights.


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International Covenant on Economic, Social and

Cultural Rights (1966)

Recognizes the follow ing rights:

To work, to free choice ofemployment and to fair wages;

To form and join unions;

To social security and toadequate standards of living;

To freedom from hunger and to

health; and To education.


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International Covenant on Civil and Political Rights

(1966)

Recognizes the following rights:

To life, liberty and security of person,

including immunity from arbitrary

arrest and retroactive sentences;

To privacy;

To be free from cruel, inhuman or

degrading treatment and from torture

and slavery;

To a fair trial;

To recognition as a person before the

law;


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To freedom of thought, conscience

and religion; To freedom of opinion and

expression;

To liberty of movement, includingthe right to emigrate;

To peaceful assembly and freedom

of association.

I di id l fil l i t d th Fi t


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Individuals may file complaints under the First

Optional Protocol of the ICCPR:

Individuals may file, under the

First Optional Protocol,complaints of human rights

violations against States that

have ratified the ICCPR.

Complaints are filed w ith the

Human Rights Committee.


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The Philippines acceded to

the First Optional Protocol

in 1989.

I t entered into force in

November of that year.

The Second Optional Protocol to the


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T e Seco d p o a o oco o e

ICCPR:

Aim is to abolish the death

penalty.Only one reservation allowed:

Tim e o f w ar p u r su an t t o a conv i ct i on f o r a m ost ser i ous cr i m e o f a m i l i t ar y n a t u r e

com m i t t ed in w ar t i m e .Right to life is non-derogable.


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Before I end


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(S)tates have an obligationto organize their whole apparatusso that human rights may beadequately protected.

Supreme Court annotation onthe Writ ofAmparo, citingdecisions of the Inter-American

Court of Human Rights

Human Rights of Persons Deprived of Liberty (Atty. Jose Manuel i. Diokno)

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