Custodial Investigations

CUSTODIAL INVESTIGATIONS (1) The rights of an accused person under in-custody investigation are expressly enumerated in Sec. 12, Art. III of the Constitution, viz: (a)Any person under investigation for the commission of an offense shall have the right to be informed of his rights to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel; (b)No torture, force, violence, intimidation or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited; (c)Any confession or admission in violation of this or Sec. 17 (SelfIncrimination Clause) hereof shall be inadmissible in evidence against him; (d)The law shall provide for penal and civil sanctions for violation of this section as well as compensation to aid rehabilitation of victims of torture or similar practice, and their families. (2) Under RA 7834, the following are the rights of persons arrested, detained or under custodial investigation: (a)Any person arrested, detained or under custodial investigation shall at all times be assisted by counsel; (b)Any public officer or employee, or anyone acting under his order or in his place, who arrests, detains or investigates any person for the commission of an offense shall inform the latter, in a language known to and understood by him, of his right to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer privately with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided with a competent and independent counsel by the investigating officer; (c)The custodial investigation report shall be reduced to writing by investigating officer, provided that before such report is signed, or thumbmarked if the person arrested or detained does not know

how to read and write, it shall be read and adequately explained to him by his counsel or by the assisting counsel provided by the investigating officer in the language or dialect known to such arrested or detained person, otherwise, such investigation report shall be null and void and of no effect whatsoever; (d)Any extrajudicial confession made by a person arrested, detained or under custodial investigation shall be in writing and signed by such person in the presence of his counsel or in the latter‘s absence, upon a valid waiver, and in the presence of any of the parents, older brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any proceeding; (e)Any waiver by person arrested or detained under the provisions of Art. 125 of the Revised Penal Code or under custodial investigation, shall be in writing signed by such person in the presence of his counsel; otherwise such waiver shall be null and void and of no effect; (f)Any person arrested or detained or under custodial investigation shall be allowed visits by his or conferences with any member of his immediate family, or any medical doctor or priest or religious minister chosen by him or by his counsel, or by any national NGO duly accredited by the Office of the President. The person‘s ―immediate family‖ shall include his or her spouse, fiancé or fiancée, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece and guardian or ward. (3) Three rights are made available by Sec. 12(1): (a)The right to remain silent — Under the right against selfincrimination in Sec. 17, only an accused has the absolute right to remain silent. A person who is not an accused may assume the stance of silence only when asked an incriminatory question. Under Sec. 12, however, a person under investigation has the right to refuse to answer any question. His silence, moreover, may not be used against him (People vs. Alegre and Gordoncillo, 94 SCRA 109); (b)The right to counsel — Example of those who are not impartial counsel are (1) Special counsel, private or public prosecutor, counsel of the police, or a municipal attorney whose interest is

adverse to that of the accused; (2) a mayor, unless the accused approaches him as counselor or adviser; (3) a barangay captain; (4) any other whose interest may be adverse to that of the accused (People vs. Tomaquin, GR 133188, July 23, 2004); (c)The right to be informed o his rights — the right guaranteed here is more than what is shown in television shows where the police routinely reads out the rights from a note card; he must also explain their effects in practical terms (People vs. Rojas, 147 SCRA 169). Short of this, there is a denial of the right, as it cannot then truly be said that the person has been informed of his rights (People vs. Nicandro, 141 SCRA 289). (4) Custodial investigation involves any questioning initiated by law enforcement officers after a person has been taken into custody otherwise deprived of his freedom of action in any significant way. The right to custodial investigation begins only when the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements (Escobedo vs. Illinois, 378 US 478; People vs. Marra, 236 SCRA 565). It should be noted however, however, that although the scope of the constitutional right is limited to the situation in Escobedo and Marra, RA 7438 has extended the guarantee to situations in which an individual has not been formally arrested but has merely been ―invited‖ for questioning (People vs. Dumantay, GR 130612, May 11, 1999; People vs. Principe, GR 135862, May 2, 2002).

Custodial investigation involves any questioning by law enforcement people after a person is taken into custody or deprived of his freedom in any significant manner. That includes "inviting" a person to be investigated in connection of a crime of which he's suspect and without prejudice to the "inviting" officer for any violation of law. If a person is taken into custody and the interrogation/questioning tends to elicit incriminating statements, RA 7438 becomes operative (People vs. Tan, GR 117321, February 11, 1998.) Application of actual force or restraint isn't necessary; intent to arrest is sufficient as well as the intent of the detainee/arrested person to submit while thinking that submission is necessary. It will also apply if the "invitation" is given by the military and the designated interrogation site is a military outpost (Sanchez vs. Demetriou, GR 111771-77, November 9, 1993.) Once a person has been taken into police custody the rules of RA 7438 are to be applied. The rights of a person under custodial investigation are the following: 1.) To be assisted by counsel (and you can demand it!) 2.) To be informed by the arresting officer, in a language he can understand, of his right to remain silent and to counsel (and if he can't afford one, he'll be provided one) 3.) The custodial investigation report will be null and void if it hasn't been read and explained to him by counsel before he signed (or thumbmarked if he's illiterate) it 4.) Extrajudicial confessions must be put in writing and must be signed by him in the presence of counsel or, if there's a valid

waiver, any one of his parents, older siblings, spouse, municipal mayor, municipal judge, district school supervisor or a priest or religious minister chosen by him 5.) The waiver of a person under custodial investigation or detained under Art. 125 of the Revised Penal Code (delay in delivering detained persons to the proper judicial authority) must be put in writing and signed by the detainee in the presence of counsel or it will be null and void 6.) To be visited by, or have conferences with, members of his immediate family, counsel, doctor, priest or religious minister or any national NGO duly accredited by the CHR or international NGO duly accredited by the office of the President The immediate family includes the following: spouse, parents, children, siblings, grandparents, grandchildren, uncles, aunts, nephews, nieces, guardians, wards and girlfriends and boyfriends. If counsel is absent, a custodial investigation can't proceed and the detainee must be treated in accordance with Art. 125 of the Revised Penal Code. Penalties If the arresting officer fails to inform the detainee or arrested person of his rights, he will be sentenced to 8 to 10 years' imprisonment and/or a fine of Php6,000. And if he was previously convicted for a similar offense, he gets perpetual absolute disqualification as well. The same penalty will also apply if the detainee or arrested person can't afford counsel's services and the arresting officers/authorities don't provide counsel. Obstructing counsel, immediate family members, doctors, priests or religious ministers from visiting or conferring with the detainee at any time of the day (or night in urgent cases, like when the detainee needs to have the sacrament of anointing the sick administered to him) will be penalized by 4 to 6 years' imprisonment and a fine of Php4,000.

Republic Act No. 7438

April 27, 1992

AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES OF THE ARRESTING, DETAINING AND INVESTIGATING OFFICERS, AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:: Section 1. Statement of Policy. – It is the policy of the Senate to value the dignity of every human being and guarantee full respect for human rights. Section 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers. – (a) Any person arrested detained or under custodial investigation shall at all times be assisted by counsel. (b) Any public officer or employee, or anyone acting under his order or his place, who arrests, detains or investigates any person for the commission of an offense shall inform the latter, in a

language known to and understood by him, of his rights to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer privately with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided with a competent and independent counsel by the investigating officer.lawphi1Ÿ (c) The custodial investigation report shall be reduced to writing by the investigating officer, provided that before such report is signed, or thumbmarked if the person arrested or detained does not know how to read and write, it shall be read and adequately explained to him by his counsel or by the assisting counsel provided by the investigating officer in the language or dialect known to such arrested or detained person, otherwise, such investigation report shall be null and void and of no effect whatsoever. (d) Any extrajudicial confession made by a person arrested, detained or under custodial investigation shall be in writing and signed by such person in the presence of his counsel or in the latter's absence, upon a valid waiver, and in the presence of any of the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any proceeding. (e) Any waiver by a person arrested or detained under the provisions of Article 125 of the Revised Penal Code, or under custodial investigation, shall be in writing and signed by such person in the presence of his counsel; otherwise the waiver shall be null and void and of no effect. (f) Any person arrested or detained or under custodial investigation shall be allowed visits by or conferences with any member of his immediate family, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, or by any national nongovernmental organization duly accredited by the Commission on Human Rights of by any international non-governmental organization duly accredited by the Office of the President. The

person's "immediate family" shall include his or her spouse, fiancé or fiancée, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward. As used in this Act, "custodial investigation" shall include the practice of issuing an "invitation" to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the "inviting" officer for any violation of law. Section 3. Assisting Counsel. – Assisting counsel is any lawyer, except those directly affected by the case, those charged with conducting preliminary investigation or those charged with the prosecution of crimes. The assisting counsel other than the government lawyers shall be entitled to the following fees; (a) The amount of One hundred fifty pesos (P150.00) if the suspected person is chargeable with light felonies;lawphi1©alf (b) The amount of Two hundred fifty pesos (P250.00) if the suspected person is chargeable with less grave or grave felonies; (c) The amount of Three hundred fifty pesos (P350.00) if the suspected person is chargeable with a capital offense. The fee for the assisting counsel shall be paid by the city or municipality where the custodial investigation is conducted, provided that if the municipality of city cannot pay such fee, the province comprising such municipality or city shall pay the fee: Provided, That the Municipal or City Treasurer must certify that no funds are available to pay the fees of assisting counsel before the province pays said fees. In the absence of any lawyer, no custodial investigation shall be conducted and the suspected person can only be detained by the investigating officer in accordance with the provisions of Article 125 of the Revised Penal Code. Section 4. Penalty Clause. – (a) Any arresting public officer or employee, or any investigating officer, who fails to inform any

person arrested, detained or under custodial investigation of his right to remain silent and to have competent and independent counsel preferably of his own choice, shall suffer a fine of Six thousand pesos (P6,000.00) or a penalty of imprisonment of not less than eight (8) years but not more than ten (10) years, or both. The penalty of perpetual absolute disqualification shall also be imposed upon the investigating officer who has been previously convicted of a similar offense. The same penalties shall be imposed upon a public officer or employee, or anyone acting upon orders of such investigating officer or in his place, who fails to provide a competent and independent counsel to a person arrested, detained or under custodial investigation for the commission of an offense if the latter cannot afford the services of his own counsel. (b) Any person who obstructs, prevents or prohibits any lawyer, any member of the immediate family of a person arrested, detained or under custodial investigation, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, from visiting and conferring privately with him, or from examining and treating him, or from ministering to his spiritual needs, at any hour of the day or, in urgent cases, of the night shall suffer the penalty of imprisonment of not less than four (4) years nor more than six (6) years, and a fine of four thousand pesos (P4,000.00).lawphi1© The provisions of the above Section notwithstanding, any security officer with custodial responsibility over any detainee or prisoner may undertake such reasonable measures as may be necessary to secure his safety and prevent his escape. Section 5. Repealing Clause. – Republic Act No. No. 857, as amended, is hereby repealed. Other laws, presidential decrees, executive orders or rules and regulations, or parts thereof inconsistent with the provisions of this Act are repealed or modified accordingly. Section 6. Effectivity. – This Act shall take effect fifteen (15) days following its publication in the Official Gazette or in any daily newspapers of general circulation in the Philippines.

Approved: April 27, 1992.