CRIMES AGAINST

THE
FUNDAMENTAL
LAWS OF THE
STATE (124-133)

. Arbitrary detention (Art. 124);

2. Delay in the delivery of detained persons to the proper judicial
authorities (Art. 125);
3. Delaying release (Art. 126);
4. Expulsion (Art. 127);
5. Violation of domicile (Art. 128);
6. Search warrants maliciously obtained and abuse in the service
of those legally obtained (Art. 129);
7. Searching domicile without witnesses (Art. 130);
8. Prohibition, interruption, and dissolution of peaceful meetings
(Art. 131);
9. Interruption of religious worship (Art. 132
10. Offending the religious feelings (Art. 133

Crimes under this title are those which violate

the Bill of Rights accorded to the citizens
under the Constitution. Under this title, the
offenders are public officers, except as to the
last crime offending the religious feelings
under Article 133, which refers to any person.
The public officers who may be held liable are
only those acting under supposed exercise of
official functions, albeit illegally.

In its counterpart in Title IX (Crimes Against Personal

Liberty and Security), the offenders are private
persons. But private persons may also be liable
under this title as when a private person conspires
with a public officer. What is required is that the
principal offender must be a public officer. Thus, if
a private person conspires with a public officer, or
becomes an accessory or accomplice, the private
person also becomes liable for the same crime. But
a private person acting alone cannot commit the
crimes under Article 124 to 132 of this title.

Arbitrary Detention
Elements
1. Offender is a public officer or employee;

2. He detains a person;

3. The detention is without legal grounds.

Meaning

of

absence

of

legal

grounds

1. No crime was committed by the detained;

2.There is no violent insanity of the detained
person; and
3. The person detained has no ailment which
requires compulsory confinement in a
hospital.

What are the legal grounds for detention of a

person:

1. Commission of a crime
2. Violent insanity or other ailment requiring
compulsory confinement of a patient in a
hospital.

A person is considered detained when he is

placed in confinement or where there is
restraint on his person. His detention is
without legal ground if he has not committed
any crime, or there is at least no reasonable
ground of suspicion that he has committed a
crime; or when he is not suffering from violent
insanity or any other ailment requiring his
compulsory confinement

Who are the public officers referred to here?

are those who are vested with authority to
detain or order the detention of persons
accused of a crime. example: policemen,
mayor, judges.

A, a distressed wife who calls the police by phone for

help. She tells the policeman that she has locked
herself inside the master's bedroom together with her
paramour because her husband caught them in
cohabitation and is now trying to force open the
locked door while holding a .45 caliber pistol. The wife
gives her name as Gigi Reyes and the husband as
Justo Enrile. The policeman immediately responded
and upon arrival at the house, he is met by a man
who introduces himself as Justo Enrile. Justo leads the
policeman to the master's bedroom where he finds
the lifeless bodies of Gigi and a male person.

Enrile continued
Both victims are found to have sustained gunshot
wounds in different parts of their bodies. The door
lock of the bedroom appears to have been forcibly
destroyed and a .45 caliber pistol is found on top of
the bed. When asked if he has knowledge of what
happened, Justo replied that both victims committed
suicide with the use of the .45 caliber pistol. Under
the facts given, the policeman is justified in placing
Justo under arrest because while he was not present
when the crime was committed, nonetheless, he has
personal knowledge of the facts indicating that the
person to be arrested has committed the crime.

Distinctions between Arbitrary Detention

and Illegal Detention
In arbitrary detention:
The principal offender must be a public
officer. Civilians can commit the crime
of arbitrary detention except when they
conspire with a public officer committing
this crime, or become an accomplice or
accessory to the crime committed by the
public officer; and
The offender who is a public officer has a
duty which carries with it the authority

Distinctions continued:
In illegal detention
The principal offender is a private person. But a public
officer can commit the crime of illegal detention when
he is acting in a private capacity or beyond the scope of
his official duty, or when he becomes an accomplice or
accessory to the crime committed by a private person.

The offender, even if he is a public officer, does not

include as his function the power to arrest and detain a
person, unless he conspires with a public officer
committing arbitrary detention.

Distinction between Arbitrary Detention

and Unlawful Arrest (Article 269)
1) As to offender:
In arbitrary detention, the offender is a
public officer possessed with authority to
make arrests.
In unlawful arrest, the offender may be
any person.

Distinction continued
As to criminal intent
In arbitrary detention, the main reason for detaining
the offended party is to deny him of his liberty.
In unlawful arrest, the purpose is to accuse the
offended party of a crime he did not commit, to
deliver the person to the proper authority, and to
file the necessary charges in a way trying to
incriminate him

Elements of Art. 125-Delay in the delivery of detained person

1. Offender is a public officer or employee;

2. He detains a person for some legal ground;
3. He fails to deliver such person to the proper judicial
authorities within

-- 12 hour for light penalties;

-- 18 hours for correctional penalties; and
-- 36 hours for afflictive or capital penalties.

In this offense, the initial detention of the person is lawful

unlike the situation contemplated under Article 124,
wherein the detention of the person is unlawful from the
very beginning. The only reason why the offender under
Article 125 is punished for arbitrary detention is
because of his failure to deliver the offended party to
the proper judicial officer within the period prescribed
by law. (See Executive Order No. 272 which directs the
delivery of any person deprived of his liberty to judicial
officers within 12 hours if the crime committed is light;
18 hours if the crime committed is less grave and within
36 hours if the crime committed is grave.)

Article 125 covers situations wherein the person detained

has been arrested without a warrant but his arrest is
nonetheless lawful. It is a felony committed by omission
because of the failure of the offender to deliver the
detained person to the proper judicial authority within
12 hours, 18 hours and 36 hours as the case may be.
Under the law, when the person detained is charged
with a crime punishable by light penalties, he should be
referred to the proper judicial authorities within 12
hours; 18 hours if he is charged of an offense punishable
by correctional penalties; and 36 hours if he is charged
of an offense punishable by afflictive penalties.

DELIVERY OF DETAINED PERSON

Delivery of detained person consists in making charge
or filing a complaint against the prisoner with the
proper judicial authority. It does not involve the
physical delivery of the prisoner before the judge
(Sayo vs. Chief of Police, supra). --- It simply means
putting the arrested person under the jurisdiction of
the court. This is done by filing the necessary
complaint or information against the person arrested
in court within the period specified in Article 125.
The purpose of this is for the court to determine
whether the offense is bailable or not and if bailable,
to allow him the right to bail.

This article does not apply if the arrest is with a

warrant. The situation contemplated here is
an arrest without a warrant.

BQ: Within what period should a police officer

who has arrested a person under a warrant of
arrest turn over the arrested person to the
judicial authority?

A: There is no time limit specified except that

the return must be made within a reasonable
time. The period fixed by law under Article
125 does not apply because the arrest was
made by virtue of a warrant of arrest.

Problem:
The arrest of the suspect was done in Baguio
City. On the way to Manila, where the crime
was committed, there was a typhoon so the
suspect could not be brought to Manila until
three days later. Was there a violation of
Article 125?

Answer: There was a violation of Article 125.

The crime committed was arbitrary detention
in the form of delay in the delivery of arrested
person to the proper judicial authority. The
typhoon or flood is a matter of defense to be
proved by the accused, the arresting officer,
as to whether he is liable. In this situation, he
may be exempt under paragraph 7 of Article
12.

Before Article 125 may be applied, it is necessary

that initially, the detention of the arrested
person must be lawful because the arrest is
based on legal grounds. If the arrest is made
without a warrant, this constitutes an unlawful
arrest. Article 269, not Article 125, will apply. If
the arrest is not based on legal grounds, the
arrest is pure and simple arbitrary detention.
Article 125 contemplates a situation where the
arrest was made without warrant but based on
legal grounds. This is known as citizens arrest.

Q: What if the law violated is a special law? What

is the allowable period that the said person be
detained by the policemen?
A: In case the law violated is a special law, check
the penalty imposable by the special law and
determine if it is grave, less grave or light felony.
That is the basis for determining the period of
time during which an arresting officer can legally
hold on to the person arrested with legal ground
and without a warrant of arrest.

Q: What should be done by an arresting officer who

legally arrested a person without warrant of arrest.
A: Have the person arrested charged in court within
the proper period provided for under Art. 125 so
that he will not be liable for Arbitrary detention.
Filing of the appropriate case at the fiscal's office is
a sufficient compliance of the law. If he cannot file
the case for whatever reason, valid or not, he
should release the person arrested
from
detention.

Problem : A police officer arrested a person without warrant of

arrest with legal ground in a far flung place for the crime of
Attempted Homicide. In bringing the person arrested to the
municipality, they have to cross seven mountains, seven hills
and seven seas. Under the law, Attempted Homicide is
punishable with Prision correccional which has a legal duration
of 6 months and one day to 6 years. Since the penalty is a
correctional penalty, the arresting officer should file the case
within 18 hours from the time that he arrested the person.
What if for the reason given above, the arresting officer fails to
cause the filing of the case within the time provided for by
law, was there violation of Art. 125?

Ans: Yes, there was a violation of Art. 125 and

the arresting officer maybe charged criminally.

Q: If you were the counsel for the arresting officer

what is your defense?
Ans: If I were the counsel for the arresting officer, I
will
invoke
as
defense
the
exempting
circumstance of insuperable cause under
paragraph 7 of Art. 12 of the Revised Penal
Code. The arresting officer was prevented from
performing an act required by law by the
physical impossibility of bringing the person
arrested to the fold of law.

Republic Act No. 9372-Human

Security Act of 2007
SEC. 18. Period of Detention Without Judicial Warrant of Arrest. - The
provisions of Article 125 of the Revised Penal Code to the contrary
notwithstanding, any police or law enforcement personnel, who,
having been duly authorized in writing by the Anti-Terrorism Council
has taken custody of a person charged with or suspected of the crime
of terrorism or the crime of conspiracy to commit terrorism shall,
without incurring any criminal liability for delay in the delivery of
detained persons to the proper judicial authorities, deliver said
charged or suspected person to the proper judicial authority within a
period of three (3) days counted from the moment the said charged
or suspected person has been apprehended or arrested, detained,
and taken into custody by the said police, or law enforcement
personnel: Provided, That the arrest of those suspected of the crime
of terrorism or conspiracy to commit terrorism must result from the
surveillance under Section 7 and examination of bank deposits under
Section 27 of this Act.

SEC. 19 Period of Detention in the Event of an Actual or Imminent

Terrorist Attack. - In the event of an actual or imminent terrorist attack,
suspects may not be detained for more than three (3) days without the
written approval of a municipal, city, provincial or regional official of a
Human Rights Commission or judge of the municipal, regional trial court,
the Sandiganbayan or a justice of the Court of Appeals nearest the place
of the arrest. If the arrest is made during Saturdays, Sundays, holidays
or after office hours, the arresting police or law enforcement personnel
shall bring the person thus arrested to the residence of any of the
officials mentioned above that is nearest the place where the accused
was arrested. The approval in writing of any of the said officials shall be
secured by the police or law enforcement personnel concerned within
five (5) days after the date of the detention of the persons concerned:
Provided, however, That within three (3) days after the detention the
suspects, whose connection with the terror attack or threat is not
established, shall be released immediately.

SEC. 20. Penalty for Failure to Deliver Suspect to the

Proper Judicial Authority Within Three (3) Days. The penalty of ten (10) years and one day to twelve
(12) years of imprisonment shall be imposed upon
any police or law enforcement personnel who has
apprehended or arrested, detained and taken
custody of a person charged with or suspected of
the crime of terrorism or conspiracy to commit
terrorism and fails to deliver such charged or
suspected person to the proper judicial authority
within the period of three (3) days.

What are the liabilities of public officers under

the Human Security Act?
1. Failure to turn over detainee within three
(3) days to judicial authorities.
2. Infidelity in the custody of detainees.
3. Furnishing false evidence, forged
document or spurious evidence.

Acts punished for DELAYING RELEASE (Art. 126)

1. Delaying the performance of a judicial or

executive order for the release of a prisoner;

2. Unduly delaying the service of the notice of

such order to said prisoner;

3. Unduly delaying the proceedings upon any

petition for the liberation of such person.

Article 127. Expulsion

Elements

1. Offender is a public officer or employee;

2. He either
a. expels any person from the Philippines; or

b. compels a person to change residence;

3. Offender is not authorized to do so by law.

The essence of this crime is coercion but the

specific crime is expulsion when committed
by a public officer. If committed by a private
person, the crime is grave coercion.

Only the President of the Philippines can expel a

person (power of deportation) thru the
Commission of Immigration overstaying
aliens. The power of the President to deport
aliens is an ACT OF THE STATE where the SC
has no power to interfere with or to control the
action of the President. The discretionary
power to deport undesirable aliens whose
continued presence in the country is a menace
to the peace and safety of the community is an
act of the State.

Article 128. Violation of Domicile

Elements:

1. Offender is a public officer or employee;

2. He is not authorized by judicial order to enter the dwelling or

to make a search therein for papers or other effects.
Circumstances qualifying the offense

1. If committed at nighttime; or

2. If any papers or effects not constituting evidence of a crime

are not returned immediately after the search made by offender.

The primary object of the law is to preserve the

privacy of abode of the offended party. Hence,
if the privacy is already lost, as when the
offender has been allowed by the owner to
enter the dwelling together with other
persons, any subsequent change of attitude
will not restore the privacy which was already
lost. When privacy is waived, trespass to
dwelling or violation of domicile cannot be
committed.

Rule: In order to commit this

crime, the entry must be
against the will of the owner. If
the entry is only without the
consent of the owner, the
crime of violation of domicile
is not committed.

The prohibition may be express or implied. If

the signs "Do not enter" and "Strangers keep
out" are posted in front of the house or
dwelling, then the prohibition is express. If the
door is locked, or even if it is open but there
are barriers to indicate the manifest intention
of the owner to bar strangers from entering,
there is implied prohibition.

Take Note: Article 128 is limited to public officers.

The public officers who may be liable for crimes
against the fundamental laws are those who are
possessed of the authority to execute search
warrants and warrants of arrests.

Under Rule 113 of the Revised Rules of Court, when

a person to be arrested enters a premise and
closes it thereafter, the public officer, after giving
notice of an arrest, can break into the premise.
He shall not be liable for violation of domicile.

There are only three recognized instances when search without a

warrant is considered valid, and, therefore, the seizure of any
evidence done is also valid. Outside of these, search would be
invalid and the objects seized would not be admissible in
evidence.

(1) Search made incidental to a valid arrest;

(2) Where the search was made on a moving vehicle or vessel
such that the exigency of he situation prevents the searching
officer from securing a search warrant;

(3) When the article seized is within plain view of the officer
making the seizure without making a search therefore.

3 Ways of committing Violation of

Domicile
1) By entering a dwelling against the will of the
owner;
2) Searching papers or other effects without
the previous consent of the owner;
3) Refusing to leave the premises after having
surreptitious entered said dwelling and after
having been required to leave.

Problem: PO2 Tan surreptitiously entered the

house of Mario. When Mario arrived, he saw
PO2 Tan sitting in comfort sipping iced tea in
his kitchen. Mario directed PO2 Tan to leave
his home. PO2 Tan followed the order and left.
Is PO2 Tan liable for Violation of Domicile?

Ans: No, PO2 Tan is not liable for Violation of

Domicile because he left the house of Mario
upon being directed to do so. In this instance,
the act punishable is not the entry but the
refusal to leave upon being required by the
owner of the house

Q: It was raining heavily. A policeman took

shelter in one persons house. The owner
obliged and had his daughter served the
policeman some coffee. The policeman made
a pass at the daughter. The owner of the
house asked him to leave. Does this fall
under Article 128?
A: No. It was the owner of the house who let
the policeman in. The entering is not
surreptitious.

Q: A person surreptitiously enters the dwelling

of another. What crime or crimes were
possibly committed?
A: The crimes committed are (1) qualified
trespass to dwelling under Article 280, if there
was an express or implied prohibition against
entering. This is tantamount to entering
against the will of the owner; and (2) violation
of domicile in the third form if he refuses to
leave after being told to.

Article 129. Search Warrants Maliciously

Obtained, and Abuse in the Service of
Those Legally Obtained
Acts punished
1.Procuring a search warrant without just
cause
2. Exceeding his authority or by using
unnecessary severity in executing a search
warrant legally procured

Example: SP02 Martinez led a team of policemen that

implemented a search warrant in the house of Mary
Ann. While they were conducting the search,
Martinez destroyed the dividing walls and employed
violence upon Mary Ann and the members of her
household inflicting physical injuries upon them.
What crime or crimes can SP02 Martinez be charged
with?
Ans: SPO2 Martinez can be charged with Violation of
Art. 129 and separate crimes of Physical Injuries.
There is no complex crime. The two felonies have
different elements

Article 130. Searching domicile

without witnesses
Q: Who must be present when a valid search is
conducted on a domicile?
Ans: (1) The house owner; (2) In his absence,
any member of his family; (3) In the absence
of the two, at least 2 witnesses residing in the
same community
The obvious reason behind this requirement is
to avoid incriminatory machination or planting
of evidence.

ANTI-TORTURE ACT-RA
9745
"Torture" refers to an act by which severe pain or
suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from
him/her or a third person information or a confession;
punishing him/her for an act he/she or a third person has
committed or is suspected of having committed; or
intimidating or coercing him/her or a third person; or for
any reason based on discrimination of any kind, when
such pain or suffering is inflicted by or at the instigation
of or with the consent or acquiescence of a person in
authority or agent of a person in authority. It does not
include pain or Buffering arising only from, inherent in or
incidental to lawful sanctions.

Passed into law on November 10, 2009

"Other

cruel, inhuman and degrading

treatment or punishment" refers to a
deliberate and aggravated treatment or
punishment not enumerated under Section
4 of this Act, inflicted by a person in
authority or agent of a person in authority
against a person under his/her custody,
which attains a level of severity causing
suffering, gross humiliation or debasement
to the latter.

"Victim" refers to the person subjected to

torture or other cruel, inhuman and degrading
treatment or punishment as defined above
and any individual who has suffered harm as a
result of any act(s) of torture, or other cruel,
inhuman and degrading treatment or
punishment.

"Order of Battle" refers to any

document or determination made by
the military, police or any law
enforcement
agency
of
the
government, listing the names of
persons and organizations that it
perceives to be enemies of the State
and that it considers as legitimate
targets as combatants that it could
deal with, through the use of means

Section 4. Acts of Torture. - For purposes of

this Act, torture shall include, but not be
limited to, the following:
(a) Physical torture is a form of treatment or
punishment inflicted by a person in authority
or agent of a person in authority upon another
in his/her custody that causes severe pain,
exhaustion, disability or dysfunction of one or
more parts of the body, such as:

(1) Systematic beating, headbanging, punching,

kicking, striking with truncheon or rifle butt or
other similar objects, and jumping on the stomach;
(2) Food deprivation or forcible feeding with spoiled
food, animal or human excreta and other stuff or
substances not normally eaten;
(3) Electric shock;
(4) Cigarette burning; burning by electrically heated
rods, hot oil, acid; by the rubbing of pepper or
other chemical substances on mucous membranes,
or acids or spices directly on the wound(s);

Section 4 continued
5) The submersion of the head in water or water
polluted with excrement, urine, vomit and/or blood
until the brink of suffocation;
(6) Being tied or forced to assume fixed and stressful
bodily position;
(7) Rape and sexual abuse, including the insertion of
foreign objects into the sex organ or rectum, or
electrical torture of the genitals;
(8) Mutilation or amputation of the essential parts of
the body such as the genitalia, ear, tongue, etc.;
(9) Dental torture or the forced extraction of the teeth;

10) Pulling out of fingernails;

(11) Harmful exposure to the elements such as
sunlight and extreme cold;
(12) The use of plastic bag and other materials
placed over the head to the point of
asphyxiation;
(13) The use of psychoactive drugs to change
the perception, memory. alertness or will of a
person, such as:

(i) The administration or drugs to induce

confession and/or reduce mental competency;
or
(ii) The use of drugs to induce extreme pain or
certain symptoms of a disease; and
(14) Other analogous acts of physical torture;
and

"Mental/Psychological Torture" refers to

acts committed by a person in authority or
agent of a person in authority which are
calculated to affect or confuse the mind
and/or undermine a person's dignity and
morale, such as:
(1) Blindfolding;

(2) Threatening a person(s) or his/fher

relative(s) with bodily harm, execution or
other wrongful acts;
(3) Confinement in solitary cells or secret
detention places;
(4) Prolonged interrogation;
(5) Preparing a prisoner for a "show trial", public
display or public humiliation of a detainee or
prisoner;

(6) Causing unscheduled transfer of a person

deprived of liberty from one place to another,
creating the belief that he/she shall be
summarily executed;
(7) Maltreating a member/s of a person's family;
(8) Causing the torture sessions to be witnessed
by the person's family, relatives or any third
party;
(9) Denial of sleep/rest;

10) Shame infliction such as stripping the

person naked, parading him/her in public
places, shaving the victim's head or putting
marks on his/her body against his/her will;
(11) Deliberately prohibiting the victim to
communicate with any member of his/her
family; and
(12)
Other
analogous
acts
of
mental/psychological torture.

Section 7. Prohibited Detention. - Secret

detention places, solitary confinement,
incommunicado or other similar forms of
detention, where torture may be carried out
with impunity. Are hereby prohibited.

Section 8. Applicability of the Exclusionary

Rule; Exception. - Any confession, admission
or statement obtained as a result of torture
shall be inadmissible in evidence in any
proceedings, except if the same is used as
evidence against a person or persons accused
of committing torture.

Section 13. Who are Criminally Liable. - Any

person who actually participated Or induced
another in the commission of torture or other
cruel, inhuman and degrading treatment or
punishment or who cooperated in the
execution of the act of torture or other cruel,
inhuman and degrading treatment or
punishment by previous or simultaneous acts
shall be liable as principal

Any superior military, police or law enforcement

officer or senior government official who
issued an order to any lower ranking
personnel to commit torture for whatever
purpose shall be held equally liable as
principals.

The immediate commanding officer of the unit

concerned of the AFP or the immediate senior
public official of the PNP and other law
enforcement agencies shall be held liable as a
principal to the crime of torture or other cruel
or inhuman and degrading treatment or
punishment for any act or omission, or
negligence committed by him/her that shall
have led, assisted, abetted or allowed, whether
directly or indirectly, the commission thereof
by his/her subordinates.

If he/she has knowledge of or, owing to the circumstances

at the time, should have known that acts of torture or
other cruel, inhuman and degrading treatment or
punishment shall be committed, is being committed, or
has been committed by his/her subordinates or by others
within his/her area of responsibility and, despite such
knowledge, did not take preventive or corrective action
either before, during or immediately after its commission,
when he/she has the authority to prevent or investigate
allegations of torture or other cruel, inhuman and
degrading treatment or punishment but failed to prevent
or investigate allegations of such act, whether deliberately
or due to negligence shall also be liable as principals.

Any public officer or employee shall be liable as an

accessory if he/she has knowledge that torture or
other cruel, inhuman and degrading treatment or
punishment is being committed and without
having participated therein, either as principal or
accomplice, takes part subsequent to its
commission in any of the following manner:
(a) By themselves profiting from or assisting the
offender to profit from the effects of the act of
torture or other cruel, inhuman and degrading
treatment or punishment;

b) By concealing the act of torture or other

cruel, inhuman and degrading treatment or
punishment and/or destroying the effects or
instruments thereof in order to prevent its
discovery; or(c) By harboring, concealing or
assisting m the escape of the principal/s in the
act of torture or other cruel, inhuman and
degrading treatment or punishment: Provided,
That the accessory acts are done with the
abuse of the official's public functions.

Section 15. Torture as a Separate and

Independent Crime. - Torture as a crime shall
not absorb or shall not be absorbed by any
other crime or felony committed as a
consequence, or as a means in the conduct or
commission thereof. In which case, torture
shall be treated as a separate and independent
criminal act whose penalties shall be
imposable without prejudice to any other
criminal liability provided for by domestic and
international laws.

Q: Is freedom from torture & other cruel,

inhuman and degrading treatment or
punishment an absolute right?
A: Yes. Torture & other cruel, inhuman and
degrading treatment or punishment as
criminal acts shall apply to all circumstances.

Q: May a state of war or a threat be used to

justify in certain cases the commission of said
acts?
A: No. Section 6 is clear. A state of war or a
threat of war, internal political instability, or
any public emergency, or a document or any
determination comprising an order of battle
shall not and can never be invoked as a
justification for torture & other cruel, inhuman
& degrading treatment or punishment.

WHO ARE LIABLE AS PRINCIPALS?

1) Any person who actually participated or
induced another in the commission of torture
or other cruel, inhuman and degrading
treatment or punishment or who cooperated
in the execution of the act of torture or other
cruel, inhuman and degrading treatment or
punishment by previous or simultaneous acts
shall be liable as principal.

Principals continued
2) Any superior military, police or law
enforcement officer or senior government
official who issued an order to any lower
ranking personnel to commit torture for
whatever purpose shall be held equally liable
as principals

Principals continued
3) The immediate commanding officer of the
unit concerned of the AFP or the immediate
senior public official of the PNP and other law
enforcement agencies shall be held liable as a
principal to the crime of torture or other cruel
or inhuman and degrading treatment or
punishment for any act or omission, or
negligence committed by him/her that shall
have led, assisted, abetted or allowed, whether
directly or indirectly, the commission thereof
by his/her subordinates.

Requisites:
1)

If he/she has knowledge of or,

owing to the circumstances at the
time should have known that acts of
torture or other cruel, inhuman and
degrading treatment or punishment
shall
be
committed,
is
being
committed, or has been committed by
his/her subordinates or by others
within his/her area of responsibility;

Requisites continued.
2) Despite such knowledge, did not take
preventive or corrective action either before,
during or immediately after its commission,
when he/she has the authority to prevent or
investigate allegations of torture or other
cruel, inhuman and degrading treatment or
punishment and,

c)Failed to prevent or investigate allegations of

such act, whether deliberately or due to
negligence shall also be liable as principal.

BAR Q. (2011)
Problem: X, a police officer, placed a hood on the
head of W, a suspected drug pusher, and watched as Y and Z,
police trainees, beat up and tortured W to get his confession.
X is liable as

a)as accomplice in violation of the Anti-Torture Act.

b) a principal in violation of the Anti-Torture Act.
c) a principal in violation of the Anti-Hazing Law.
d) an accomplice in violation of the Anti-Hazing
Law.

Who are liable as Accomplices?

Ans: Any person who, not being included in
Section 26 hereof, cooperate in the execution
of torture or other cruel, inhuman and
degrading treatment or punishment by
previous or simultaneous acts is an
accomplice. (Section 27, IRR)

Who are liable as Accessories?

Any public officer or employee shall be liable as
an accessory if he/she has knowledge that
torture or other cruel, inhuman and degrading
treatment or punishment is being committed
and without having participated therein, either
as principal or accomplice, takes part
subsequent to its commission in any of the
following manner:

a) By themselves profiting from or assisting the

offender to profit from the effects of the act of
torture or other cruel, inhuman and degrading
treatment or punishment;
b) By concealing the act of torture or other
cruel, inhuman and degrading treatment or
punishment and/or destroying the effects or
instruments thereof in order to prevent its
discovery; or

(c) By harboring, concealing or assisting in the

escape of the principal/s in the act of torture
or other cruel, inhuman and degrading
treatment or punishment: Provided, That the
accessory acts are done with the abuse of the
official's public functions

CAN TORTURE AS A CRIME ABSORB OR BE

ABSORBED BY ANY OTHER CRIME?
No. Torture should be treated as a separate and
independent crime under the law.

Torture as a crime shall not absorb or shall

not be absorbed by any other crime or
felony committed as a consequence, or as
a means in the conduct or commission
thereof. In which case, torture shall be
treated as a separate and independent
criminal act whose penalties shall be
imposable without prejudice to any other
criminal liability provided for by domestic
and international laws. (Section 15)

WHAT IS THE PENALTY IF ANY OF THE CRIMES AGAINST

PERSONS OR AGAINST PERSONAL LIBER TY AND
SECURITY IS ATTENDED BY TORTURE AND SIMILAR
ACTS?
If the commission of any crime punishable under Title
Eight (Crimes Against Persons) and/or Title Nine (Crimes
Against Personal Liberty and Security) of the Revised
Penal Code is attended by any of the acts constituting
torture and other cruel, inhuman and degrading
treatment or punishment as defined herein, the penalty
to be imposed shall be in its maximum period.

MAY A PERSON WHO IS FOUND TO HAVE

COMMITTED THE CRIME OF TORTURE BE
BENEFITED FROM ANY SUBSEQUENT SPECIAL
AMNESTY LAW?
No. They are excluded from the coverage of
special amnesty law.

Section 16 expressly provides that in order not

to depreciate the crime of torture, persons
who have committed any act of torture shall
not benefit from any special amnesty law or
similar measures that will have the effect of
exempting them from any criminal
proceedings and sanctions.

CAN A PERSON BE EXTRADITED EVEN IF HE IS IN

DANGER OF BEING SUBJECTED TO TORTURE ?
No. Section 17 is clear. No person shall be
expelled, returned or extradited to another
State where there are substantial grounds
to believe that such person shall be in
danger of being subjected to torture.

WHAT IS THE NON-REFOULEMENT

RULE?
No person shall be expelled, returned or extradited to
another State where there are substantial grounds to
believe that such person shall be in danger of being
subjected to torture. For the purposes of determining
whether such grounds exist, the Secretary of the
Department of Foreign Affairs (DFA) and the
Secretary of the DOJ, in coordination with the
Chairperson of the CHR, shall take into account all
relevant considerations including, where applicable
and not limited to, the existence in the requesting
State of a consistent pattern of gross, flagrant or
mass violations of human rights (Sec. 17)

HOW MUST THE STATE DETERMINE WHETHER

SUCH GROUND EXISTS?
For the purposes of determining whether such grounds
exist, the Secretary of the Department of Foreign
Affairs (DFA) and the Secretary of the DOJ, in
coordination with the Chairperson of the CHR, shall
take into account all relevant considerations including,
where applicable and not limited to, the existence in
the requesting State of a consistent pattern of gross,
flagrant or mass violations of human rights. (Section
17, R.A. 9745).

IS A VICTIM OF TORTURE ENTITLED TO A CLAIM FOR

COMPENSATION?
Yes, the law provides compensation to victims of torture.
Under Section 18, any person who has suffered torture shall have
the right to claim for compensation as provided for under R.A.
7309: Provided, That in no case shall compensation be any lower
than Ten thousand pesos (P10,000.00).
Victims of torture shall also have the right to claim for
compensation from such other financial relief programs that may
be made available to him/her under existing law and rules and
regulations.

NON-PRESCRIPTIBLE OFFENSE
WHAT IS THE PRESCRIPTIVE PERIOD OF
THE CRIME OF TORTURE?
It has no prescriptive period. Under
Section 45 of the Implementing Rules
and Regulations, torture is a nonprescriptible offense. The statute of
limitation or prescription period shall
not apply to torture cases.

In order not to depreciate the crime of torture,

persons who have committed any act of
torture shall not benefit from any special
amnesty law or similar measures that will
have the effect of exempting them from any
criminal proceedings and sanctions. (Section
16)

Philippines: Five years later, no

convictions under landmark anti-torture
law
Philippines' Anti-Torture Act was passed on 10
November 2009.

Five years without a single torture survivor

obtaining justice shows that this law, which
could make a genuine difference towards
ending torture in the Philippines, risks
becoming nothing but a piece of paper. The
government must step up to its commitment
to stamp out torture once and for all. Salil
Shetty, Amnesty Internationals Secretary
General.