IRR of RA 10353 Anti-Enforced Disappearance

Policy, purpose, and interpretive rule

The State policy values the dignity of every human person and guarantees full respect for human rights by prioritizing measures that uphold the right to life, liberty and security and prevent enforced or involuntary disappearances.
The State policy prohibits the use and establishment of secret detention places, solitary confinement, incommunicado, or similar forms of detention.
The State policy provides penal and civil sanctions and restitution, compensation and rehabilitation for victims and their families, especially where torture, force, violence, threat, intimidation, or other means vitiate the free will of the abducted, arrested, detained, disappeared, or otherwise removed person.
The IRR directs strict adherence to constitutional and international human-rights principles condemning human rights violations, including instruments such as the UDHR, ICCPR, ICESCR, CAT, CRC, CEDAW, UN declarations on protection from enforced disappearance, and other relevant instruments to which the Philippines is a State Party.
The IRR is construed to achieve the objectives of the Act, and in case of doubt, interpretation is resolved in favor of victims of enforced or involuntary disappearance.

Core definitions and coverage

“Agents of the State” are persons who, by direct provision of law, popular election, or appointment by competent authority, perform public functions or public duties in government or any of its branches as an employee, agent, or subordinate official.
“Enforced or involuntary disappearance” is an offense with all elements: (1) arrest, detention, abduction, or any other form of deprivation of liberty; (2) commission by agents of the State or by persons acting with the authorization, support, or acquiescence of the State; and (3) refusal to acknowledge the deprivation of liberty or concealment of the fate or whereabouts of the disappeared person, placing the person outside the protection of the law.
“Order of Battle” is any military, police, or law-enforcement document listing perceived enemies of the State as legitimate targets (combatants) that it could deal with using means allowed by domestic laws and international law, including reference to R.A. No. 7438 and R.A. No. 9851.
“Victim” is the disappeared person and any individual harmed as a direct result of enforced or involuntary disappearance; for purposes of restitution under Section 26 of the Act, “victim” refers to the disappeared person who surfaced alive, found dead, or still missing; for purposes of compensation and rehabilitation under Sections 26 and 27 of the Act, “victim” may include the disappeared person’s immediate relatives within the fourth civil degree of consanguinity and affinity.
“Officially recognized and controlled places of detention or confinement” are facilities created by law, ordinances, department orders, administrative issuances, or judicial orders where persons deprived of liberty are held, confined, or detained.

Non-suspension, unlawfulness of orders

The right against enforced or involuntary disappearance and the safeguards for its prevention shall not be suspended under any circumstance, including political instability, threat of war, state of war, or other public emergencies (Section 5).
An “Order of Battle” or any similar order causing enforced or involuntary disappearance is unlawful and cannot be invoked as a justifying or exempting circumstance.
Any person receiving such an order has the right to disobey it (Section 6).

Communication, reporting, and certification duties

Any person deprived of liberty has the absolute right to immediate access to any form or means of effective communication to inform family, relative, friend, lawyer, Commission on Human Rights (CHR), or any human rights organization of the person’s whereabouts and condition (Section 7).
In warrantless arrest situations, the right attaches upon actual deprivation of liberty, covering taking, transit, and detention (Section 7).
Enforcement of this right is without prejudice to rights during custodial investigation under R.A. No. 7438 (Section 7).
Any person who is not a principal, accomplice, or accessory and who learns of an incident or case of enforced or involuntary disappearance, or that a person is a victim, must immediately report in writing the circumstances and whereabouts to any of the following: (a) victim’s family/relative/lawyer if known; (b) any human rights organization; (c) CHR main office or Regional/sub-office/desk office concerned; (d) DOJ, National Prosecution Service (NPS), or nearest prosecution office; (e) NBI or its local-level office nearest the incident or reported location; (f) DILG office; (g) DND office; (h) PNP office/detachment/division; or (i) any AFP unit (Section 8).
The report must be based on the reporter’s personal knowledge and be in writing through sworn statement, signed letter, signed incident report/blotter/memorandum, SMS, e-mail, or social media.
Reports made through SMS, e-mail, or social media must be followed by a written statement duly signed and filed within a reasonable period of time (Section 8).
When a family member/relative/lawyer/CHR or human rights organization representative, or a media member inquires about the presence or whereabouts of a reported disappeared person at police/military detention centers, government agencies, hospitals, or morgues, the concerned officials must immediately issue a written certification stating the date and time of inquiry, details, and response in clear and unequivocal manner (Section 9).
Within 30 days from effectivity, DILG, DOJ, DND, DOH, PDEA, and NAPOLCOM must adopt mechanisms to ensure an officer is available to issue the certifications at any time of day or night (Section 9).
The certification must contain: (a) identity of inquirer; (b) date/time of inquiry; (c) details enabling identity (including physical features); (d) purpose of inquiry; (e) response on presence within the facility or immediate premises; (f) prior detention/transfer/release records if available; and (g) a promise to notify immediately if the person is later brought into the facility via the most expedient means (Section 9).
Certification response times are mandatory by facility/inquiry level: (a) PNP certifications must be issued immediately but not beyond four (4) hours when inquired directly before the head of the detention facility; (b) BJMP and local government jails similarly must be issued immediately but not beyond four (4) hours; (c) provincial PNP/BJMP inquiries must be certified within five (5) calendar days, regional and national headquarters within seven (7) calendar days; (d) AFP certifications must be issued immediately within twenty-four (24) hours by the AFP Commanding Officer for the unit being inquired with, and for headquarters/camp/command post within prescribed unit-type periods (including within two (2) calendar days for PA/PAF/PN battalions-equivalent, three (3) for brigades-equivalent, four (4) for divisions-equivalent, five (5) for unified commands, seven (7) for AFP General Headquarters and major services, and three (3) for other AFP commands not defined); and (e) hospital/clinic/morgue inquiries must be certified immediately but not beyond four (4) hours (Section 9).
For other detention facilities not listed, certifications must be issued immediately, and where inquiry is at the provincial/regional/national levels, the same number of days as the PNP/BJMP provincial-to-national periods applies (Section 9).

Prosecutorial duties and up-to-date detention register

When an inquest or investigating public prosecutor, or any judicial or quasi-judicial official or employee learns that a person delivered for inquest or preliminary investigation or any judicial/quasi-judicial process is a victim of enforced or involuntary disappearance, the official must immediately disclose the probable victim’s whereabouts to the immediate family, relatives, lawyers, CHR, or human rights organizations (including FIND and Desaparecidos) through the most expedient means using telephone, SMS, or e-mail (Section 10).
The prosecutor/official must inquire whether the respondent’s immediate family/relatives/lawyer/CHR/human rights organization have been informed of the respondent’s arrest and/or detention, including details of who was contacted, contact details, and the time of communication (Section 10).
If the respondent is accompanied by family/relatives/lawyer/other persons, the prosecutor/official must verify the communication time and particulars with the companion(s) (Section 10).
If the prosecutor/official finds the respondent is a probable victim, disclosure must be made immediately to the immediate family, relatives, lawyer/s, CHR, or human rights organization (including FIND and Desaparecidos), again through telephone, SMS, or e-mail (Section 10).
The prosecutor/official must include in minutes of proceedings the facts and details of communication to the respondent’s family/relatives/CHR/other organizations and require the respondent, companion(s), and arresting officers to sign the minutes (Section 10).
The Judiciary, Ombudsman, DOJ, and other agencies exercising quasi-judicial functions must ensure updated CHR office contacts and organization contacts for FIND, Desaparecidos, and other human rights organizations are available to prosecutors and judicial/quasi-judicial officials within jurisdiction at all times (Section 10).
All persons detained or confined must be placed solely in officially recognized and controlled places of detention or confinement where an official up-to-date register is maintained (Section 11).
Family members, relatives, lawyers, judges, official bodies, CHR, human rights organizations, and all persons with legitimate interest must have free access to the register (Section 11).
The register must record, among others: (a) identity/name/description/address of the person deprived of liberty; (b) date/time/location of deprivation and identity of the person causing it; (c) authority deciding deprivation and reasons/crime or offense; (d) controlling authority; (e) place and admission details and responsible authority; (f) records of physical/mental/psychological condition before/during/after and the examining physician; (g) release/transfer date/time, destination, and responsible authority; (h) every removal from cell, reason/purpose, and return time; (i) physical/mental/medical findings summary after each interrogation; (j) names/addresses of visitors and visit/departure date/time; (k) death during deprivation including identity, circumstances, cause of death, and destination of remains; and (l) all other important events and relevant details on treatment (Section 11).
Details under the register for items (a) to (f) must be entered immediately upon arrest and/or detention (Section 11).
All information in the register must be regularly reported to CHR Regional Offices within the first five (5) working days of the month on a bimonthly basis, consolidated by the CHR Main Office through its Assistance and Visitorial Office (AVO), and the registry must be made available to the public (Section 11).
The custodian of the registry must determine whether the inquirer has legitimate interest (Section 11).
The absence and non-maintenance of the registry makes the person with immediate authority and jurisdiction over the detention facility liable under Section 11, and the immediate custodian or one who accomplishes entries may be administratively liable (Section 11).

Detention-facility inventory and special detention rules

Within six (6) months from the effectivity of the Act, and within the first five (5) days of every month thereafter at the minimum or as requested by CHR, all concerned government agencies must submit an updated inventory/list of all officially recognized and controlled detention or confinement facilities and the list of detainees/persons deprived of liberty under their respective jurisdictions to the CHR (Section 12).
Detention facilities covered include jails, correctional, lock-up cells, holding areas, safehouses, hospitals/clinics, and similar facilities including those maintained by the military or law enforcement agencies (Section 12).
DSWD-supervised centers are subject to rules on confidentiality (Section 12).
Safehouses under DOJ’s Witness Protection Program (WPP) are exempt from the application of Section 11 of the Act (Section 12).

Habeas corpus, amparo, and habeas data compliance

Proceedings for issuance of writs of habeas corpus, amparo, and habeas data must be expeditiously resolved following the Rules of Court on habeas corpus and the Supreme Court Rules on amparo and habeas data, and courts and concerned government agencies must give priority (Section 13).
Any order issued or promulgated pursuant to these writs or their proceedings must be executed and complied with immediately (Section 13).

CHR visitation and inspection powers

The CHR or its duly authorized representatives are mandated and authorized to conduct regular, independent, unannounced, and unrestricted visits or inspections of all places of detention or confinement (Section 14).
“Places of detention or confinement” include any physical space/area/structure—moving or stationary, permanent or temporary—where deprivation of liberty is carried out and whose establishment, operation, and maintenance is punishable under Section 14(i) of R.A. No. 9745 (Anti-Torture Act of 2009) (Section 14).
CHR visits conducted through authorized officers and personnel must be covered by a Mission Order and Identification Card (Section 14).
In CHR Quick Reaction Teams (QRT), Rapid Assessment Teams (RAST), or similar missions where there is absence of Mission Order, CHR officials need only to present official IDs (Section 14).

Command responsibility, crimes, and penalties

The immediate commanding officer of the AFP unit concerned, or the immediate senior official of the PNP and other law enforcement agencies, is held liable as a principal for acts by subordinates that led, assisted, abetted, or allowed enforced or involuntary disappearance (Section 15).
If the commanding officer/senior official had knowledge or should have known of an enforced or involuntary disappearance committed by subordinates or others within the area of responsibility and did not take preventive or coercive action before, during, or immediately after commission, despite authority to prevent or investigate allegations, liability as principal also attaches whether deliberately or due to negligence (Section 15).
The penalty of reclusion perpetua and its accessory penalties are imposed on: (1) those who directly committed; (2) those who forced, instigated, encouraged, or induced; (3) those who cooperated by committing another act without which the disappearance would not have been consummated; (4) officials who allowed or abetted consummation when within power to stop or uncover; and (5) those who cooperated through previous or simultaneous acts (Section 16(a)).
The penalty of reclusion temporal and its accessory penalties apply to those who commit the act in the attempted stage as defined under Article 6 of the Revised Penal Code (Section 16(b)).
The penalty of reclusion temporal and accessory penalties also apply to persons with knowledge who took part after commission (without participation as principals or accomplices) by profiting or assisting the offender to profit; concealing the act and/or destroying effects or instruments to prevent discovery; or harboring/concealing/assisting the principal’s escape, provided the accessory acts are done with abuse of official functions (Section 16(c)).
The penalty of prision correctional and accessory penalties apply to persons who defy, ignore, or unduly delay compliance with any order duly issued or promulgated pursuant to writs of habeas corpus, amparo, and habeas data, or their respective proceedings (Section 16(d)).
The penalty of arresto mayor and accessory penalties apply to any person who violates Sections 7, 8, 9, 10, and 11 of this IRR (Section 16(e)).

Preventive suspension, civil liability, and independence of liability

Government officials and personnel found as perpetrators or participants through preliminary investigation for enforced or involuntary disappearance must be preventively suspended or summarily dismissed, depending on the strength of evidence, or as recommended by the investigating authority (Section 17).
The investigating prosecutor must furnish the respondent’s agency/office and the Office of the Ombudsman copies of the resolution not later than five (5) calendar days from release (Section 17).
Upon receipt, the Office of the Ombudsman or the concerned agency may use the resolution for administrative proceedings (Section 17).
The IRR does not preclude the victim or the victim’s family from initiating, or the Ombudsman or concerned agency from conducting, a separate and independent administrative disciplinary proceeding (Section 17).
Enforced or involuntary disappearance renders perpetrators and State agencies that organized, acquiesced in, or tolerated such disappearance liable under civil law (Section 18).
Criminal liability under the Act is independent of, or without prejudice to, prosecution and conviction for any violation of R.A. No. 7438, R.A. No. 9745, and applicable provisions of the Revised Penal Code (Section 19).
Any investigation, trial, and decision in Philippine courts or bodies for violation of the Act must be without prejudice to processes before any appropriate international court or agency under applicable international human-rights and humanitarian law (Section 20).

Exemption, continuing offense, limitation rules, amnesty

An offender who volunteers information that leads to the discovery of the victim, or leads to prosecution without the victim being found, is exempt from criminal and/or civil liability under the Act, provided the offender does not appear to be the most guilty (Section 21).
The offender must execute a sworn statement narrating: knowledge/participation; responsible persons and their participation, names, and offices connected with; whereabouts of the victim; circumstances on how knowledge was gained; and an undertaking to cooperate in investigation and prosecution (Section 21).
If no case or complaint has yet been filed, the sworn statement must be submitted to any law enforcement agency, CHR, or any human rights organization for filing with prosecutors or the Ombudsman (Section 21).
The investigating prosecutor must exempt the offender from charges upon determination that the offender is not the most guilty (Section 21).
The offender may avail of benefits or coverage under DOJ’s WPP (Section 21).
If a case is already pending in court, prosecution must move for discharge from the Information to allow testimony for the State, or withdraw the Information against the offender, or amend the Information if arraignment has not yet occurred (Section 21).
Enforced or involuntary disappearance is a continuing offense as long as perpetrators continue concealing the fate and whereabouts and such circumstances have not been determined with certainty (Section 22).
Prosecution for persons responsible shall not prescribe unless the victim surfaces alive; if the victim surfaces alive, the prescriptive period is twenty-five (25) years from the date of reappearance (Section 23).
“Reappearance” includes discovery/finding in jail or other detention place, or hospital by family/CHR/human rights organizations; or the day the victim reunites with family or relatives, or reports discovery or reappearance to CHR or other human rights organizations, with an effective cessation of deprivation of liberty (Section 23).
Persons charged with and/or guilty of enforced or involuntary disappearance shall not benefit from any special amnesty law or similar executive measures that exempt them from penal proceedings or sanctions (Section 24).

State protection, refoulement, and remedies

The State must ensure safety of all persons involved in the search, investigation, and prosecution of enforced or involuntary disappearance, including victims, families, complainants, witnesses, legal counsel, and human-rights-organization representatives, CHR, NPS, and media, and must protect them from intimidation or reprisal (Section 25).
AFP, NBI, PNP, and other law enforcement agencies must likewise ensure safety of investigators, prosecutors, media, and persons involved in search, exhumation, and investigation/prosecution (Section 25).
Upon filing of a complaint through final disposition, sufficient government protection must be provided to the victim and persons involved in investigation and prosecution (Section 25).
Protection requests must consider factors including: power and position of alleged perpetrators; accused resources capacity/access; history of retaliatory action; age/gender/economic/social/political/cultural status; degree of severity; and geographical distance between victim/other involved persons and alleged perpetrators (Section 25).
Victims of enforced disappearance, their families, and witnesses may avail of benefits under R.A. No. 6981 (Witness Protection, Security and Benefit Act) and other applicable laws (Section 25).
Refoulement is prohibited: no person shall be expelled, returned, or extradited to another State where there are substantial grounds to believe the person will be in danger of enforced or involuntary disappearance; the Secretary of Foreign Affairs and the Secretary of Justice, in coordination with the CHR Chairperson, must consider all relevant considerations including where applicable and among others the existence in the requesting State of a consistent pattern of gross, flagrant, or mass violations of human rights (Section 26).
Victims who surface alive are entitled to monetary compensation, rehabilitation, and restitution of honor and reputation (Section 27).
Restitution of honor and reputation includes immediate expunging or rectification of derogatory records, information, and public declarations/statements regarding the victim’s person, personal circumstances, status, and/or organizational affiliation by appropriate government or private agencies (Section 27).
“Victims” for this section include those who surface alive as well as those who continue to be disappeared or are found dead after passage of the Act (Section 27).
Immediate relatives within the fourth civil degree of consanguinity or affinity may claim remedies, including compensation under R.A. No. 7309 and other government relief programs (Section 27).
A victim and his or her immediate family within the fourth civil degree are entitled to compensation (Section 27).
While the victim continues to be disappeared or is found dead after effectivity, the family may file a claim under the order in Section 6 of R.A. No. 7309 as supplemented by the order of succession under the New Civil Code (Section 27).
A family’s prior claim does not bar the victim from filing a personal claim once the victim reappears (Section 27).
After reappearance, if the family has not yet filed, both the victim and the family in the order provided may file a claim for compensation under R.A. No. 7309 (Section 27).
Compensation granted must not be less than Ten Thousand Pesos (Php 10,000.00) (Section 27).
For compensation claims under R.A. No. 7309, proof records of enforced disappearance include: (a) NPS Resolution; (b) CHR Resolution; (c) records of the National Historical Institute (NHI) or Bantayog ng mga Bayani Memorial Center; (d) Writ of Amparo, Habeas Corpus, and Habeas Data, or court order; and (e) roll of victims of enforced or involuntary disappearance officially issued subsequently by government (Section 27).
The six-month period to file a claim under R.A. No. 7309 does not apply because enforced or involuntary disappearance is continuing; for victims who surfaced alive, the six-month period is reckoned from the date of re-appearance as defined in Sec. 23 of the IRR (Section 27).
Victims and their immediate families may claim compensation from other financial relief programs and mechanisms available under law, including applying for financial assistance from CHR and other government agencies (Section 27).

Rehabilitation, implementation, and legal effects

The State, through CHR in coordination with DOH and DSWD, in partnership with concerned NGOs, must provide medical care and rehabilitation free of charge to victims who surfaced alive and/or their immediate relatives within the fourth civil degree to reintegrate them into society (Section 28).
CHR must convene DSWD, DOH, and NGOs to formulate a comprehensive rehabilitation program including psychosocial, medical care, and livelihood services (Section 28).
The comprehensive rehabilitation program must be developed within six (6) months from the effectivity of the IRR (Section 28).
Rehabilitation services must be gender-responsive, rights-based, and culturally-sensitive for victims of enforced disappearance and their immediate families (Section 28).
A parallel restorative-justice rehabilitation program for offenders who committed enforced or involuntary disappearance must also be implemented without cost to the offenders (Section 28).
Upon effectivity, DOJ, DSWD, CHR, FIND, and Desaparecidos must ensure full dissemination of the Act and the IRR to concerned agencies and the public (Section 29).
The Revised Penal Code applies suppletorily insofar as consistent with the Act (Section 30).
If any section or provision of the Act is declared unconstitutional or invalid, the remaining sections or provisions not affected remain in full force (Section 31).
All laws, decrees, executive orders, rules and regulations, and other issuances or parts inconsistent with the Act are repealed, amended, or modified accordingly (Section 32).