IRR of Anti-Torture Act of 2009

Authority, legal basis, and relationship

These IRR are issued to implement Republic Act No. 9745 (the Anti-Torture Act of 2009) (Section 1).
These IRR define and operationalize duties and rights that prevent torture and other cruel, inhuman and degrading treatment or punishment and ensure the implementation of Republic Act No. 9745 (Section 2).
The Revised Penal Code provisions are suppletory insofar as applicable (Section 46).
The penalty rule in Section 46 provides that when a crime punishable under Title Eight and Title Nine of the Revised Penal Code is attended by acts constituting torture or other cruel, inhuman and degrading treatment or punishment, the penalty shall be imposed in its maximum period (Section 46).
The Revised Penal Code maximum-period rule applies without prejudice to other criminal liability for torture being treated as a separate crime (Section 30 and Section 46).

Policy, purpose, and constitutional commitment

The State must value the dignity of every human person and guarantee full respect for human rights (Section 3(a)).
Human rights of all persons in custody, including suspects, detainees, and prisoners, must be respected at all times; no person under investigation or in custody by any person in authority or agent of a person in authority may be subjected to physical, psychological, or mental harm, force, violence, threat, or intimidation, or any act that impairs free will or demeans or degrades human dignity (Section 3(b)).
Secret detention places, solitary confinement, incommunicado detention, and similar detention forms where torture may be carried out with impunity are prohibited (Section 3(c)).
The State adheres to the constitutional condemnation and prohibition of torture (Section 3(d)).
The State upholds inherent rights and dignity of persons guaranteed in international human rights instruments including ICCPR, CRC, CEDAW, CAT, and the Universal Declaration on Human Rights, and other relevant instruments to which the Philippines is a signatory (Section 3(e)).

Core definitions and key terms

“Torture” is an intentional act inflicting severe pain or suffering, physical or mental, for purposes including obtaining information or a confession; punishing for acts committed or suspected; intimidating or coercing; or any reason based on discrimination, when inflicted by or with the consent or acquiescence of a person in authority or agent of a person in authority. It excludes pain or suffering arising only from, inherent in, or incidental to lawful sanctions (Section 5).
“Other cruel, inhuman and degrading treatment or punishment” is a deliberate and aggravated treatment or punishment not enumerated under Section 4 of the Act, inflicted by a person in authority or agent of a person in authority against a person in custody, reaching a severity causing suffering, gross humiliation, or debasement (Section 5).
“Victim” means the person subjected to torture or other cruel, inhuman and degrading treatment or punishment, and any individual who has suffered harm as a result of any acts of torture or such treatment (Section 5).
“Order of Battle” refers to a document or determination listing names of persons and organizations perceived as enemies of the State and considered as legitimate targets/combatants that may be dealt with using means allowed by domestic and international law (Section 5).
“Person in authority” means any person directly vested with jurisdiction, whether individually or as a member of a court or government corporation, board, or commission (Section 5).
“Agent of a person in authority” includes persons charged with maintaining public order and protecting and securing life and property, including anyone who comes to the aid of persons in authority, by direct provision of law or election or appointment (Section 5).
“Custodial investigation” includes issuing an invitation to a person investigated in connection with an offense the person is suspected of having committed, without prejudice to the liability of the inviting officer for violations under R.A. No. 7438 (Section 5).
“Interrogation” is the process of questioning an arrested or detained person in relation to any violation of law (Section 5).
“Solitary confinement” is imprisonment where a prisoner(s) or detainee(s) is denied contact with any other persons except prison/detention staff, and includes cases where occasional access is subject to the jailer or prison/detention authority’s discretion (Section 5).
“Incommunicado” is a condition where a person under investigation or detention is deliberately prohibited, without valid reason, from communicating in any manner with any person other than the persons holding the person under custody (Section 5).
“Prohibited custody” is captivity or deprivation of liberty of an individual, static or mobile, without just cause (Section 5).
“Prohibited detention” is secret detention places, solitary confinement, incommunicado, or similar detention forms where torture may be carried out with impunity (Section 5).
“Right to own choice” is the right of all persons in custody to be informed, in oral or written form in a language or dialect understood by the alleged torture victim or the person concerned, of the right to demand a physical examination by a physician of the victim’s own choice (Section 5).
“Independent and competent doctor” is any physician freely chosen by the victim or the victim’s duly authorized representative(s); physicians belonging to agencies involved in arrest and detention are not included unless the victim specifically allowed the examination and circumstances so require (Section 5).
“Right to Physical Examination” is the right of every arrested, detained, or under custodial investigation person to a prompt and thorough physical examination to determine whether torture has been inflicted, including access without delay, before and after interrogation, and immediately before and after any transfer to detention places (Section 5).
“BHRAC” is the barangay institutional mechanism that receives and refers complaints of human rights violations, including torture (Section 5).

Prohibited acts and absolute prohibition

Torture includes, but is not limited to, physical torture committed by a person in authority or agent of a person in authority upon another in the person’s custody causing severe pain, exhaustion, disability, or dysfunction—such as systematic beating; food deprivation or forcible feeding with spoiled food/excreta and other substances; electric shock; cigarette burning; burning with electrically heated rods, hot oil, acid; rubbing pepper or chemical substances on mucous membranes; acids or spices on wounds; submersion of the head in water or polluted water until near suffocation; forced stressful bodily positions; rape and sexual abuse including insertion of foreign objects or electrical torture of genitals; mutilation or amputation of essential body parts; dental torture; forced extraction of teeth; pulling out fingernails; harmful exposure to elements; use of plastic bag/material over the head to the point of asphyxiation; administration of psychoactive drugs to change perception/memory/alertness/will (including drugs to induce confession and/or reduce mental competency, or drugs to induce extreme pain or disease symptoms); and other analogous acts (Section 6(a)).
Torture includes mental/psychological torture, such as blindfolding; threatening the person or relative with bodily harm/execution or wrongful acts; confinement in solitary cells or secret detention; prolonged interrogation; preparing a prisoner for show trial/public display/public humiliation; causing unscheduled transfer creating belief of summary execution; maltreating family members; causing torture sessions to be witnessed by family/relatives/third parties; denial of sleep/rest; shame infliction like stripping naked/parading in public, shaving head, or putting marks on the body against the victim’s will; deliberately prohibiting communication with family; and other analogous acts (Section 6(b)).
Other cruel, inhuman and degrading treatment or punishment refers to deliberate and aggravated treatment or punishment not enumerated under Section 4 of the Act, inflicted by a person in authority or agent of such person against a person in custody, reaching severity sufficient to cause suffering, gross humiliation, or debasement, with severity assessed considering duration, physical/mental effects, and in some cases sex, religion, age, and state of health of the victim (Section 7).
Torture and other cruel, inhuman and degrading treatment or punishment are absolute rights and apply to all circumstances (Section 8).
War, threat of war, internal political instability, other public emergency, and a document or determination comprising an order of battle are never valid justification for torture or other cruel, inhuman and degrading treatment or punishment (Section 8).

Handling detention and secret detention rules

No individual—whether arrested, detained, or under custodial investigation, or restricted or deprived of liberty for any reason—may be kept in secret detention, solitary confinement, held incommunicado, prohibited custody, or other similar forms of detention (Section 10).
No detention centers for secret detention may be allowed; if found, use as a secret detention center must be discontinued immediately (Section 10).
The CHR exercises visitorial powers at any time over jails, prisons, and detention facilities and has unrestricted access to detention facilities inside military camps, police lock-up cells, jails, prisons, youth homes, and other detention/rehabilitation/confinement and similar facilities (Section 11).
Custodial authorities must validate or verify the identity and authority of the CHR visitation team without delay (Section 11).

Detention center lists and public access

The PNP, AFP, NBI, BJMP, BuCor, PDEA, all other law enforcement agencies, and local chief executives having jurisdiction over provincial jails must make an updated list of all detention centers and facilities under their jurisdictions with data on persons detained/incarcerated such as names, dates of arrest and incarceration, and the crime or offense charged (Section 12).
Lists must be periodically updated by the agencies and local chief executives within the first five (5) days of every month at the minimum (Section 12).
Within 60 days from adoption of the IRR, the CHR must prescribe a standard format and guidelines for reporting the detention lists at national, regional, and local levels and must prescribe the contents of the register of detention centers and facilities (Section 12).
Updated lists must be made available to the public at all times, with copies available at the respective national headquarters or offices of the concerned agencies (Section 12).
Records of children or persons involved in sexual violence cases must not be accessible to the public pursuant to R.A. No. 7610, R.A. No. 8353, R.A. No. 9344, and other related laws (Section 12).
Regional offices of the agencies must maintain similar lists and the up-to-date register, make these available to the public at all times at their regional headquarters, and submit copies updated in the same manner to the respective regional offices of the CHR (Section 13).

Evidentiary and complaint-related rules

Any confession, admission, or statement obtained as a result of torture is inadmissible in evidence in any proceeding, except when used as evidence against a person or persons accused of committing torture (Section 14).
Any person with personal knowledge of the circumstances involving commission of the crime may file a complaint for acts punishable under Sections 6 and 7 of the IRR (Section 9).
A victim of torture has a right to a prompt and impartial fact-finding investigation within 60 days by the CHR, PNP, DOJ/NBI, AFP, and other concerned government agencies where the complaint is lodged (Section 15(a)).
When the case is referred to the DOJ or the Ombudsman for preliminary investigation, the 60-day period is reckoned from filing of the complaint before those agencies (Section 15(a)).
The PAO must assist victims in preparation of affidavits and other legal documents (Section 15(a)).
A child must always be accompanied by a social worker from the LSWDO; the LSWDO must ensure that medical examination is conducted, preferably with the presence of the parent or legal guardian, and must ensure filing of a complaint to the appropriate agencies (Section 15(b)).

Government protection and witness safeguards

Upon filing of the complaint, during trial, and until final disposition, the victim and other persons involved in investigation and prosecution must be provided sufficient government protection, including preventive suspension during administrative investigation, and filing a motion in court to transfer the detainee to a safe place, and other remedies provided by law (Section 16).
Factors for granting protection include the power/position of perpetrators; capacity and resources of the accused; history of retaliatory action; economic/social status and gender of victim and other involved persons; degree of severity of the complained act; and geographical distance between victim/other involved persons and accused (Section 16).
Torture victims and witnesses to torture may avail of R.A. No. 6981 (Witness Protection, Security and Benefit Act) and other applicable laws (Section 16).
Torture victims and witnesses must be accorded sufficient protection in the manner they testify and present evidence to avoid further trauma, and appropriate government agencies may coordinate with concerned civil society organizations (Section 17).
Closed circuit television testimony and one-way mirrors and similar devices must be utilized whenever necessary to prevent direct interaction between the victim(s) and accused (Section 17).
Psychiatrists or psychologists, especially trauma experts, must provide in-court assistance when necessary in accordance with the Rules of Court; child psychologist/child psychiatrist or CASA/GAL must be provided to children in accordance with the existing rules on examination of a child witness (Section 17).

Legal assistance and barangay mechanisms

The CHR and PAO must render legal assistance in investigation and monitoring and/or filing of the complaint for a person who suffers torture or other cruel, inhuman and degrading treatment or punishment, and for any interested party, regardless of indigency of the complainant (Section 18).
The victim or interested party may seek legal assistance from the IBP and human rights NGOs, among others (Section 18).
BHRACs, through BHRAOs, must conduct information education campaigns on the law and refer torture victims to the CHR or other appropriate agency for investigation or legal assistance (Section 18).
The DILG and CHR must conduct information dissemination at the grassroots level to ensure citizens use BHRACs in filing complaints (Section 18).

Medical examination rights and procedures

Every arrested, detained, or under custodial investigation person has the right to be informed of the right to demand a physical examination by an independent and competent doctor of the person’s own choice, before and after interrogation (Section 19).
Implementation of the right must ensure access for documenting possible allegations of torture or other ill-treatment (Section 19).
If a person cannot afford the services of the person’s own doctor, the State must provide a competent and independent doctor for physical examination (Section 19).
The State must provide psychological evaluation if available under the circumstances (Section 19).
The medical examination must be conducted at no cost to the victim, and the victim must not be required to pay for laboratory fees, testing fees, x-rays, or any and all other expenses; inability to prove incapacity to pay cannot be a ground to deny physical examination (Section 19).
Funds for further consultations may be provided by other agencies providing financial assistance, such as PCSO and PAGCOR (Section 19).
In DOH settings, each CHD must ensure victims are referred to appropriate health facilities; LGUs may assist through local health units; the social worker conducting intake interview may recommend to LGUs the grant of financial/medical assistance (Section 19).
Immediate access to proper and adequate physical, medical, and psychological examination for treatment is an inherent right exercisable immediately upon demand by the victim, without any need for a court order or any legal process (Section 20).
Female detainees must be attended to by a female doctor; if female doctors are unavailable, male doctors are allowed only with written or oral consent of the person, and the examination is conducted with a family member (preferably female) of sufficient age and discretion, or a representative of any authorized organization (Section 21).
Facilities for female victims/detainees must be exclusive and separate from facilities for male victims/detainees (Section 21).
For victims of sexual torture, utmost care and sensitivity must be observed; if specialized care is necessary, the victim must be referred to appropriate specialists (Section 21).
Medical examiners must conduct diligent and complete examinations; any violation through conduct or omission must be referred to relevant authorities and medical associations for further investigation; all medical reports must be duly signed by the examining physician (Section 22).
Medical reports are public documents for persons with legal interest; medical reports involving children and victims of sexual violence must be kept confidential pursuant to existing laws (Section 23).

Medical report contents and certifications

The physician must prepare and sign the report and include extensive case information, background information, victims’ allegations, physical symptoms and disabilities, physical examination details, photographs, diagnostic test results, interpretation of findings, conclusions and recommendations, consultations, physician certifications, signatures, dates/places, and relevant annexes, including curriculum vitae and supporting materials such as photographs and consultations (Section 24).
The report must include physician certifications that the physician was allowed to work freely and independently, permitted to speak with and examine the subject in private without restriction or reservation and without coercion by detaining authorities; certifications must include restrictions when restrictions were imposed (Section 24).
The report format requires full documentation of whether informed consent was given and if not, the reasons, as well as details on restraint and restrictions, consultation and transfer information, and whether medical evaluation/investigation was conducted without restriction for persons in custody (Section 24).
The report must also include psychological history/examination sections and psychological conclusions and recommendations, including correlation of psychological findings with allegations, assessment of expected or typical reactions to extreme stress within the cultural/social context, and conclusions about consistency and recommendations for further care and rehabilitation if necessary (Section 24).

Waiver and medical consent rules

Any person who does not wish to avail of physical, medical, and psychological examination rights may waive them knowingly and voluntarily in writing, executed in the presence and assistance of counsel of the person’s own choice and in a language the person understands (Section 25).

Criminal liability structure: principals, accomplices, accessories

A person is a principal when the person directly participated, forced or induced another to commit torture or other cruel, inhuman and degrading treatment or punishment, or cooperated in execution by acts without which the offense would not have been accomplished, or cooperated by previous or simultaneous acts (Section 26(a)).
A superior military, police, or law enforcement officer or senior government official who issued an order to lower ranking personnel to commit torture for any purpose is liable equally as a principal (Section 26(b)).
An AFP immediate commanding officer or PNP and other law enforcement immediate senior public official is liable as a principal for acts or omissions, or negligence that led, assisted, abetted, or allowed torture or other cruel, inhuman and degrading treatment or punishment by subordinates, whether directly or indirectly; liability attaches when the officer knew or should have known such acts were being committed or had been committed in the officer’s area of responsibility and failed to take preventive or corrective action before, during, or immediately after commission, where the officer had authority to prevent or investigate allegations (Section 26(c)).
An accomplice is any person who cooperates in the execution of torture or other cruel, inhuman and degrading treatment or punishment by previous or simultaneous acts, but who is not included as a principal under Section 26 (Section 27).
A public officer or employee is an accessory if the person has knowledge that torture or other cruel, inhuman and degrading treatment or punishment is being committed, and—without participating as principal or accomplice—participates subsequent to commission by profiting from or assisting the offender to profit from effects; concealing the act and/or destroying effects or instruments to prevent discovery; or harboring, concealing, or assisting the escape of principal(s), provided accessory acts are done with abuse of official functions (Section 28).
If a child is involved, handling and treatment of the child must follow R.A. No. 7610, R.A. No. 9344 (Juvenile Justice and Welfare Act), and other related laws; if doubt exists, interpretation must be construed liberally in favor of the child consistent with best interests of the child, the declared state policy, the rights of the child, and principles of restorative justice (Section 28).

Penalties for torture and related acts

Reclusion perpetua is imposed for perpetrators of acts including: torture resulting in the death of any person; torture resulting in mutilation; torture with rape; torture with other forms of sexual abuse with consequences where the victim became insane, imbecile, impotent, blind or maimed for life; and torture committed against children (Section 29(a)).
Reclusion temporal is imposed for mental/psychological torture resulting in insanity, complete or partial amnesia, fear of becoming insane, or suicidal tendencies of the victim due to guilt, worthlessness, or shame (Section 29(b)).
Prision correccional is imposed for acts of torture resulting in psychological, mental, and emotional harm other than those described in Section 29(b) (Section 29(c)).
Prision mayor medium and maximum periods are imposed when, as a consequence of torture, the victim lost the power of speech or hearing or smelling; or lost an eye, hand, foot, arm, or leg; or lost the use of any such member; or became permanently incapacitated for labor (Section 29(d)).
Prision mayor minimum and medium periods are imposed when, as a consequence of torture, the victim became deformed or lost any part of the body other than those cited; or lost the use thereof; or was ill or incapacitated for labor for more than 90 days (Section 29(e)).
Prision correccional maximum period to prision mayor minimum period is imposed when the victim was ill or incapacitated for labor for more than 30 days but not more than 90 days (Section 29(f)).
Prision correccional minimum and medium periods are imposed when the victim was ill or incapacitated for labor for 30 days or less (Section 29(g)).
Arresto mayor is imposed for acts constituting cruel, inhuman, or degrading treatment or punishment as defined in Section 5 of the Act (Section 29(h)).
Prision correccional is imposed on those who establish, operate, and maintain secret detention places and/or effect or cause solitary confinement, incommunicado, or other similar forms of prohibited detention where torture may be carried out with impunity, as provided in Section 7 of the Act (Section 29(i)).
Arresto mayor is imposed on responsible AFP, PNP, and other law enforcement officers or personnel for failure to maintain, submit, or make available to the public an updated list of detention centers and facilities with data on prisoners/detainees as required in Section 7 of the Act (Section 29(j)).
Penalties for duties under R.A. No. 7438 remain without prejudice to the provisions stated in Section 29(j) (Section 29(j)).

Separate crime rule and immunity limits

Torture is treated as a separate and independent criminal act and does not absorb, nor is absorbed by, any other crime or felony committed as a consequence, or as a means in the conduct or commission of that other crime; torture penalties are imposable without prejudice to other criminal liability under domestic and international laws (Section 30).
Amnesty is inapplicable: persons who have committed any act of torture do not benefit from any special amnesty law or similar measures that exempt them from criminal proceedings and sanctions (Section 31).

Extradition/refoulement protection

No person shall be expelled, returned, or extradited to another State when there are substantial grounds to believe the person shall be in danger of being subjected to torture (Section 32).
To determine whether grounds exist, the Secretary of the Department of Foreign Affairs and the Secretary of the DOJ, in coordination with the Chairperson of the CHR, must consider all relevant considerations, including the existence (where applicable and not limited to) of a consistent pattern of gross, flagrant, or mass violations of human rights in the requesting State (Section 32).

Compensation and claims

Any person who has suffered torture as defined in the Act, or in the victim’s absence or incapacity the victim’s immediate family, has the right to claim compensation under existing laws, rules, and regulations (Section 33).
If the victim dies, compensation accrues as part of the victim’s estate (Section 33).
Claims must be filed with the Board of Claims under the DOJ as provided for in R.A. No. 7309; financial assistance may also be sought from the CHR (Section 34).
A claim may be filed by the victim, a relative within the fourth degree of consanguinity, or an authorized human rights NGO that assists the victim in filing (Section 35).
Where there is a finding torture was committed, compensation under R.A. No. 7309 must not be less than PhP10,000.00 (Section 36).
Victims also have the right to claim compensation from other financial relief programs that may be made available under existing laws, including applying for financial assistance from the CHR (Section 36).

Rehabilitation programs and funding

Rehabilitation toward restorative justice must be provided for physical, psychological, and social healing and development of torture victims and their families (Section 37).
Torture victims and their families are entitled to rehabilitation based on the examining physician’s recommendation in the Medical and Psychological Report (Section 37).
A parallel rehabilitation program must be provided for persons convicted by final judgment of torture and other cruel, inhuman and degrading punishment (Section 37).
The rehabilitation program must be formulated within one (1) year from the effectivity of the Act by DSWD, DOH, DOJ, DILG, CHR, CWC, AFP, BuCor, BJMP, PNP, NBI, PDEA, and participating duly recognized government-callable human rights NGOs (Section 38).
The formulation must consider survivors’ role by inviting female and male survivors to represent their collective feelings and opinions (Section 38).
Rehabilitation programs must cover comprehensive physical, mental, social, psychological healing, and development for victims and their families, and reintegration for perpetrators convicted by final judgment through their parallel program (Section 39).
Agencies mandated to provide rehabilitation services must provide necessary budget for implementation (Section 40).

Oversight, NGO participation, and training

An **Oversight