16 December 2011

In a resolution released yesterday, 15 December 2011, the Panel of National Prosecution Service ("NPS") Prosecutors (created by virtue of Department of Justice ["DOJ"] Order No. 457, s. 2011) found probable cause to charge M/Gen. JOVITO S. PALPARAN,JR. (ret), Lt. Col. FELIPE G. ANOTADO, M/Sgt. RIZAL C. HILARIO and S/Sgt. EDGARDO L. OSORIO with two (2) counts of Kidnapping and Serious Illegal Detention in connection with the abduction of still-missing University of the Philippines students Sherlyn T. Cadapan ("Sherlyn") and Karen E. Empefio ("Karen") in the province of Bulacan in 2006.

The mothers of the missing students, Erlinda T. Cadapan and Concepcion E. Empefio ("Complainants"), jointly filed with, the DOJ a complaint for Rape, Serious Physical Injuries, Arbitrary Detention, Maltreatment of Prisoners, Grave Threats, Grave Coercion, Violation of Republic Act No. 7438 (An Act Defining Certain Rights of Persons Arrested, Detained or Under Custodial Investigation, etc.), Violation of the International Covenant on Civil and Political Rights ("ICCPR"), and Violation of Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT") against Palparan, Anotado, Hilario, Osorio and several others.

While the four named respondents were indicted for Kidnapping and Serious Illegal Detention, the other charges against them were dismissed, along with all the charges against the rest of the respondents.

As to the charge of Rape, the same was dismissed because the only evidence presented to support it is the testimony of Raymond Manalo stating that Sherlyn confided in him that respondent Donald Caigas had raped her while they were detained at Camp Tecson. Although the testimony of Manalo was previously found by the Supreme Court to be a candid and forthright narrative of his and his brother's abduction, his testimony as to the alleged rape of Sherlyn unfortunately amount to mere hearsay evidence. Under the Rules of Court, witnesses can only testify only to those facts which he knows of his personal knowledge. In the absence of such testimony, Sherlyn still missing up to now and respondent Caigas having died since (based on the death certificate submitted by the Armed Forces of the Philippines), or of any evidence to support the charge of rape, no probable cause was found to charge the other respondents.

As to the charge of Serious Physical Injuries, the Panel noted that such a crime is penalized based on the gravity of the injury inflicted without the intent to kill. Since the victims are still missing, they were unable to testify or submit a record of their medical or physical examination to establish the degree of injury inflicted upon them. Furthermore, liability could not be assigned to the named respondents for the alleged physical injuries committed against Sherlyn and Karen as the victims could not point out which of the respondents were responsible.

For similar reasons, the charges of Grave Coercion and Grave Threats were dismissed for "[o]nly Sherlyn and Karen can prove the actual threats and coercions that they allegedly endured from the respondents before and during their detention." As the records stand, the only evidence to support such charges are the hearsay testimony of complainants' witnesses.

As to the charge of violation of the ICCPR and CAT, such international conventions are not themselves penal statutes, hence, cannot be the bases for a criminal charge. It was not until 2009 that the law defining and punishing crimes against humanity and the law on torture were enacted by the Philippine Government. The acts alleged by the complainants and their witnesses having been committed before such enactment (from 2006 to 2007), the later laws cannot be the basis of a criminal charge against respondents, following the principle of nonretroactive effect of penal statutes unless "they favor the persons guilty of a felony" (Article 22 of the Revised Penal Code).

In dismissing the charge of violation of R.A. No. 7438 against all respondents, the Panel exposited that an indictment under Section 4 of said penal statute presupposes two (2) facts: (1) that the offended party has been arrested, detained or under any custodial investigation; and (2) that the offender is any arresting public officer or employee. In this case, based on the testimony of the complainants' witnesses who have personal knowledge of the circumstances under which Sherlyn and Karen were taken on June 26, 2006, the victims were not arrested, detained or placed under custodial investigation, as contemplated by R.A. 7438. The incident, as described particularly by witness Wilfreda Ramos, does not amount to an arrest because there was no indication that the armed men were police officers or law enforcement agents with the authority to, and the purpose of arresting Sherlyn and Karen for some offense, and their act of forcibly takirig the two women was without an iota or semblance of legality.

In the same vein, the charge of maltreatment of prisoners was also dismissed for the reason that "for one to be held liable for maltreatment, the offended party must have been in actual confinement in a penal establishment. Moreover, the public officer who is the offender should have the authority to detain and have custody over the offended party." The Panel pointed out that, although the respondents are members of the AFP and are public officers, they could not be considered as "custodians" because, among others, such officers have "no statutory authority to detain civilians." Neither can Sherlyn and Karen be considered as having been confined in a penal establishment because, as previously explained, they were not formally arrested, charged or convicted.

The same reasoning was applied in dismissing the charge of Arbitrary Detention, which , according to the Panel, requires that the public officers liable be vested with authority to detain or order the detention of persons accused of crime. The respondents, being army officers, had no authority to arrest or detain Sherlyn and Karen for violation of criminal laws, as they
were both civilians.

The Panel, however, concluded that "[t]hus, a public officer who has no legal duty to detain a person may be prosecuted [not for arbitrary detention, but] for illegal detention and kidnapping." According to the Panel, "the facts are clear that some of the respondents are liable for kidnapping and serious illegal detention under Article 267 of the Revised Penal Code, as amended by Republic Act No. 7659... [as the] complainants' witnesses were able to establish that Sherlyn and Karen, both female, were kidnapped on 26 June 2006 and were last seen by Raymond Manalo detained up to around June 2007, a period of one (1) year." Hence, respondents Palparan, Osorio, Anotado and Hilario were charged, not for arresting and detaining the victims, but for taking the two women.

The Panel concluded that the kidnapping and serious illegal detention of Sherlyn and Karen were done by Philippine Army officers, enlisted personnel and other unindicted co-conspirators, who committed the acts not in relation to their office but in violation of "their sacred duty of protecting the People" and by acting "outside their oaths of office, thereby acting as if they are private individuals."

Based on Raymond Manalo's proven positive testimony that he was visited and threatened by Palparan at the barangay hall of Sapang, San Miguel Bulacan on or about August 2006, along with his subsequent sharing of detention places with the two victims and the fact that these detention places are facilitiesjsafehouses of men belonging to units of the 7th Infrantry Division, the commanding General of which is none other than respondent Palparan, the Panel found probable cause to conclude "that Palparan had a direct hand in the detention of SherlYll and Karen and that through his men, he had knowledge and control of the places where the women were held."

Raymond Manalo also positively narrated that Lt. Col. Felipe Anotado (who was the battalion commander of the 24th Infantry Batallion at the time he, Sherlyn and Karen were detained at its military camp in Limay, Bataan) visited them at said camp and even conversed with the two women for about an hour. Thus, although his presence during the abduction of the women is not clearly shown, his knowledge of their continued illegal detention and his acquiescence thereto is established by his visit to Limay, Bataan and his conversation with the victims.

M/Sgt. Rizal C. Hilario, having been positively identified by Raymond Manalo as the person who brought him to Camp Tecson, has also been physically placed in the scene of Sherlyn's and Karen's detention, thus laying the basis for charging him as a co-conspirator in the kidnapping of the two women.

Staff Sergeant Edgardo L. Osorio was identified during the preliminary investigation hearing on 19 June 2011 by witness Wilfredo Ramos as one of the armed men who took Sherlyn and Karen on 26 June 2006. Although Osorio presented documentary evidence of his assignment to the Army Personnel Management Center during the period that includes the day of the kidnapping incident, the Panel stated that such is but an alibi that cannot prevail over his positive identification by witness Wilfredo. Although it is proof of his assignment, it is not necessarily proof that he was at a place far away from the area of Barangay San Miguel, Hagonoy, Bulacan at about 2:00 o'clock in the morning of 26 June 2006.

The charges against the other respondents were dismissed for, among others, absence of clear individual criminal liabilities attributable to them.

The information to charge the indicted respondents for the crime of Kidnapping and Serious Illegal Detention, which is non-bailable, is due to be filed today, 16 December 2011.

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