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RIGHTS OF THE ACCUSED UNDER CUSTODIAL INVESTIGATION IN THE PHILIPPINES

(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 (Self-


Incrimination 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 thumb
marked 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 latters 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 persons immediate family shall include his or her spouse,
fianc or fiance, 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 self-incrimination 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 of 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).

Republic of the Philippines


Congress of the Philippines
Metro Manila

Eighth Congress

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.lawphi1

(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 non-governmental 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, fianc or fiance, 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;lawphi1alf

(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.