RIGHTS OF A PERSON UNDER
CUSTODIAL INVESTIGATION vis-à-vis
RA 7438
RIGHTS OF A PERSON UNDER
CUSTODIAL INVESTIGATION
 Section 12, ART. III, 1987 CONST
1. Any person under investigation for
the commission of an offense shall
have the right to be informed of his
right 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.
2. No torture, force, violence, threat,
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.
3. Any confession or admission
obtained in violation of this or
Section 17 hereof shall be
inadmissible in evidence against
him.
4. The law shall provide for penal and
civil sanctions for violations of this
Section as well as compensation to
the rehabilitation of victims of torture
or similar practices, and their
families.
Coverage
 Right to remain silent
 Right to counsel
 Right to be informed of such rights
PURPOSE
The objective is to prohibit incommunicado
interrogation of individuals in a police-
dominated atmosphere, resulting in self-
incriminating statement without full warnings
of constitutional rights. (People v. Rapeza,
G.R. No. 169431, April 3, 2007)
AVAILABILITY
After a person has been taken into custody
1. When a person is deprived of his
freedom of action in any significant
way
2. When a person is issued an
invitation for an investigation in
connection with an offense he is
suspected to have committed
3. When a person voluntarily
surrenders to the police
4. The investigation is being conducted
by the government with respect to a
criminal offense (police, DOJ, NBI)
NON-AVAILABILITY
1. During a police lineup [Exception:
Once there is a move among the
investigators to elicit admissions or
confessions from the suspect]
2. During administrative investigations
3. Confessions made by an accused at
the time he voluntarily surrendered
to the police or outside the context of
a formal investigation
4. Statements made to a private
person
5. Signing of arrest reports and
booking sheets

RIGHT TO REMAIN SILENT
RA 7438, Section 2. Rights of Persons
Arrested, Detained or Under Custodial
Investigation; Duties of Public Officers. –
x..x…x
(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 xxxx
SILENCE NOT AN IMPLIED ADMISSION
OF GUILT
A person under investigation has the right to
refuse to answer any question. His silence,
moreover, may not be used against him.
(Bernas, The 1987 Constitution of the
Republic of the Philippines, 2009)
MUST INCLUDE AN EXPLANATION
THAT ANYTHING SAID CAN AND WILL
BE USED AGAINST HIM
The warning of the right to remain silent
must be accompanied by the explanation
that anything said can and will be used
against the individual in court. This warning
is needed in order to make him aware not
only of the privilege, but also of the
consequences of the foregoing. (Miranda v.
Arizona, 384 U.S. 436, June 13, 1966)
RIGHT TO COMPETENT AND
INDEPENDENT COUNSEL
RA 7438
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. X x x
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.
XXXX
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.
PURPOSE
The right to counsel at all times is intended
to preclude the slightest coercion as would
lead the accused to admit something false.
The lawyer, however, should never prevent
an accused from freely and voluntarily
telling the truth. (People v. Mojello, G.R. No.
145566, March 9, 2004)
COUNSEL OF CHOICE NOT EXCLUSIVE
The phrase "preferably of his own choice"
does not convey the message that the
choice of a lawyer by a person under
investigation is exclusive as to preclude
other equally competent and independent
attorneys from handling the defense;
otherwise the tempo of custodial
investigation will be solely in the hands of
the accused who can impede, nay, obstruct
the progress of the interrogation by simply
selecting a lawyer who, for one reason or
another, is not available to protect his
interest. (People v. Mojello, G.R. No.
145566, March 9, 2004)
COMPETENT COUNSEL: EFFECTIVE such rights is an ineffective and inadequate
AND VIGILANT compliance with the mandates of the
constitution. Any confession obtained under
A competent counsel is an effective and
these circumstances is flawed and cannot
vigilant counsel. An "effective and vigilant
be used as evidence not only against the
counsel" necessarily and logically requires
declarant but also against his co-accused.
that the lawyer be present and able to
(People v. Verano, G.R. No. 181474, July
advise and assist his client from the time the
26, 2017)
confessant answers the first question asked
by the investigating officer until the signing
of the extrajudicial confession. (People v.
WAIVER
Tomaquin, G.R. No. 133188, July 23, 2004)
The rights of persons under custodial
investigation cannot be waived except:
RIGHT TO BE INFORMED
1. In writing;
An accused's right to be informed of the
2. In the presence of counsel. (PHIL.
right to remain silent and to counsel
CONST., art. III, § 12[1]) R.A. 7438
contemplates the transmission of
Extrajudicial Confession (Sec. 2)
meaningful information rather than just the
ceremonial and perfunctory recitation of an
abstract constitutional principle. (People v.
Januario, G.R. No. 98252, Feb. 7, 1997) EXTRAJUDICIAL CONFESSION

An accused's right to be informed of the Any extrajudicial confession made by a

right to remain silent and to counsel
contemplates the transmission of
meaningful information rather than just the
ceremonial and perfunctory recitation of an
abstract constitutional principle. (People v.
Januario, G.R. No. 98252, Feb. 7, 1997)
person arrested, detained or under custodial
investigation:
1. Shall be in writing; and
2. Signed by such person in the presence of
his counsel or in the latter's absence:

The right of a person under custodial a. Upon a valid waiver, and

investigation to be informed of his rights to
b. In the presence of any of the
remain silent and to counsel implies a
following as chosen by him/her:
correlative obligation on the part of the
police investigator to explain and to • Parents
contemplate an effective communication
that results in an understanding of what is • Elder brothers and sisters
conveyed. Short of this, there is a denial of • Spouse
the right, as it cannot then truly be said that
the person has been truly ‘informed’ of his • Municipal mayor
rights. (People v. Januario, G.R. No. 98252,
• Municipal judge
Feb. 7, 1997)
• District school supervisor
When accused was merely told of his
constitutional rights but was never asked • Priest or minister of the gospel.
whether he understood what he was told or
whether he wanted to exercise or avail of

RIGHT AGAINST TORTURE
No torture, force, violence, threat,
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. (Sec. 12 (3) ART.
3, 1987 CONST)
Section 12, REPUBLIC ACT N0. 9745
("Anti-Torture Act of 2009")
Right to' Physical, Medical and
Psychological Examination. - Before and
after interrogation, every person arrested,
detained or under custodial investigation
shall have the right to he informed of his/her
right to demand physical examination by an
independent and competent doctor of
his/her own choice. If such person cannot
afford the services of his/her own doctor,
he/she shall he provided by the State with a
competent and independent doctor to
conduct physical examination. The State
shall endeavor to provide the victim with
psychological evaluation if available under
the circumstances. If the person arrested is
a female, she shall be attended to
preferably by a female doctor. Furthermore,
any person arrested, detained or under
custodial investigation, including his/her
immediate family, shall have the right to
immediate access to proper and adequate
medical treatment. The physical
examination and/or psychological evaluation
of the victim shall be contained in a medical
report, duly signed by the attending
physician, which shall include in detail
his/her medical history and findings, and
which shall he attached to the custodial
investigation report. Such report shall be
considered a public document.
Section 3, REPUBLIC ACT N0. 9745
("Anti-Torture Act of 2009")
Torture" refers to an act by which severe
pain or suffering, whether physical or
mental, is intentionally inflicted on a person
for such purposes as obtaining from him/her
or a third person information or a
confession; punishing him/her for an act
he/she or a third person has committed or is
suspected of having committed; or
intimidating or coercing him/her or a third
person; or for any reason based on
discrimination of any kind, when such pain
or suffering is inflicted by or at the
instigation of or with the consent or
acquiescence of a person in authority or
agent of a person in authority. It does not
include pain or Buffering arising only from,
inherent in or incidental to lawful sanctions.
Section 4, REPUBLIC ACT N0. 9745
("Anti-Torture Act of 2009")
Acts of Torture -- (a) Physical torture is a
form of treatment or punishment inflicted by
a person in authority or agent of a person in
authority upon another in his/her custody
that causes severe pain, exhaustion,
disability or dysfunction of one or more parts
of the body x x x.
(b)"Mental/Psychological Torture" refers to
acts committed by a person in authority or
agent of a person in authority which are
calculated to affect or confuse the mind
and/or undermine a person's dignity and
morale x x x.
Section 5, REPUBLIC ACT N0. 9745
("Anti-Torture Act of 2009")
Other cruel, inhuman or degrading
treatment or punishment refers to a
deliberate and aggravated treatment or
punishment not enumerated under Section
4 of this Act, inflicted by a person in
authority or agent of a person in authority
against another person in custody, which
attains a level of severity sufficient to cause
suffering, gross humiliation or debasement
to the latter
Section 13. Who are Criminally Liable. -
Any person who actually participated Or
induced another in the commission of
torture or other cruel, inhuman and
degrading treatment or punishment or who
cooperated in the execution of the act of
torture or other cruel, inhuman and
degrading treatment or punishment by
previous or simultaneous acts shall be liable
as principal
Any superior military, police or law
enforcement officer or senior government
official who issued an order to any lower
ranking personnel to commit torture for
whatever purpose shall be held equally
liable as principals.
The immediate commanding officer of the
unit concerned of the AFP or the immediate
senior public official of the PNP and other
law enforcement agencies shall be held
liable as a principal to the crime of torture or
other cruel or inhuman and degrading
treatment or punishment for any act or
omission, or negligence committed by
him/her that shall have led, assisted,
abetted or allowed, whether directly or
indirectly, the commission thereof by his/her
subordinates. If he/she has knowledge of or,
owing to the circumstances at the time,
should have known that acts of torture or
other cruel, inhuman and degrading
treatment or punishment shall be
committed, is being committed, or has been
committed by his/her subordinates or by
others within his/her area of responsibility
and, despite such knowledge, did not take
preventive or corrective action either before,
during or immediately after its commission,
when he/she has the authority to prevent or
investigate allegations of torture or other
cruel, inhuman and degrading treatment or
punishment but failed to prevent or
investigate allegations of such act, whether
deliberately or due to negligence shall also
be liable as principals.
Any public officer or employee shall be
liable as an accessory if he/she has
knowledge that torture or other cruel,
inhuman and degrading treatment or
punishment is being committed and without
having participated therein, either as
principal or accomplice, takes part
subsequent to its commission in any of the
following manner:
(a) By themselves profiting from or assisting
the offender to profit from the effects of the
act of torture or other cruel, inhuman and
degrading treatment or punishment;
(b) By concealing the act of torture or other
cruel, inhuman and degrading treatment or
punishment and/or destroying the effects or
instruments thereof in order to prevent its
discovery; or(c) By harboring, concealing or
assisting m the escape of the principal/s in
the act of torture or other cruel, inhuman
and degrading treatment or punishment:
Provided, That the accessory acts are done
with the abuse of the official's public
functions.
Any public officer or employee shall be
liable as an accessory if he/she has
knowledge that torture or other cruel,
inhuman and degrading treatment or
punishment is being committed and without
having participated therein, either as
principal or accomplice, takes part
subsequent to its commission in any of the
following manner:
(a) By themselves profiting from or assisting
the offender to profit from the effects of the
act of torture or other cruel, inhuman and
degrading treatment or punishment;
(b) By concealing the act of torture or other
cruel, inhuman and degrading treatment or
punishment and/or destroying the effects or
instruments thereof in order to prevent its
discovery; or(c) By harboring, concealing or
assisting m the escape of the principal/s in
the act of torture or other cruel, inhuman
and degrading treatment or punishment:
Provided, That the accessory acts are done
with the abuse of the official's public
functions.
RIGHTS OF PDLs
Section 14.
 (1)No person shall be held to
answer for a criminal offense
without due process of law.
 (2) In all criminal prosecutions, the
accused shall be presumed innocent
until the contrary is proved, and shall
enjoy the right to be heard by
himself and counsel, to be informed
of the nature and cause of the
accusation against him, to have a
speedy, impartial, and public trial, to
meet the witnesses face to face, and
to have compulsory process to
secure the attendance of witnesses
and the production of evidence in his
behalf. However, after arraignment,
trial may proceed notwithstanding
the absence of the accused provided
that he has been duly notified and
his failure to appear is unjustifiable.
The United Nations Standard Minimum
Rules for the Treatment of Prisoners (the
Nelson Mandela Rules)
RA 10575
“ THE BUREAU OF CORRECTIONS ACT
OF 2013” ADOPTED THE PROVISIONS
AND RULES OF THE UNSMRTP.
Preliminary observation 1
The following rules are not intended to
describe in detail a model system of penal
institutions. They seek only, on the basis of
the general consensus of contemporary
thought and the essential elements of the
most adequate systems of today, to set out
what is generally accepted as being good
principles and practice in the treatment of
prisoners and prison management
Preliminary observation 2
1. In view of the great variety of legal,
social, economic and geographical
conditions in the world, it is evident
that not all of the rules are capable
of application in all places and at all
times. They should, however, serve
to stimulate a constant endeavour to
overcome practical difficulties in the
way of their application, in the
knowledge that they represent, as a
whole, the minimum conditions
which are accepted as suitable by
the United Nations.
2. On the other hand, the rules cover a
field in which thought is constantly
developing. They are not intended to
preclude experiment and practices,
provided these are in harmony with
the principles and seek to further the
purposes which derive from the text
of the rules as a whole. It will always
be justifiable for the central prison
administration to authorize
departures from the rules in this
spirit
Preliminary observation 3
1. Part I of the rules covers the general
management of prisons, and is
applicable to all categories of
 prisoners, criminal or civil, untried or
convicted, including prisoners
subject to “security measures” or
corrective measures ordered by the
judge.
2. Part II contains rules applicable only
to the special categories dealt with in
each section. Nevertheless, the
rules under section A, applicable to
prisoners under sentence, shall be
equally applicable to categories of
prisoners dealt with in sections B, C
and D, provided they do not conflict
with the rules governing those
categories and are for their benefit
Preliminary observation 4
1. The rules do not seek to regulate the
management of institutions set aside
for young persons such as juvenile
detention facilities or correctional
schools, but in general part I would
be equally applicable in such
institutions.
2. The category of young prisoners
should include at least all young
persons who come within the
jurisdiction of juvenile courts. As a
rule, such young persons should not
be sentenced to imprisonment
The United Nations Standard Minimum
Rules for the Treatment of Prisoners (the
Nelson Mandela Rules)
PART 1
 Rule 1 All prisoners shall be treated
with the respect due to their inherent
dignity and value as human beings.
No prisoner shall be subjected to,
and all prisoners shall be protected
from, torture and other cruel,
inhuman or degrading treatment or
punishment, for which no
circumstances whatsoever may be
invoked as a justification. The safety
and security of prisoners, staff,
service providers and visitors shall
be ensured at all times.
 Rule 2 1. The present rules shall be
applied impartially. There shall be no
discrimination on the grounds of
race, colour, sex, language, religion,
political or other opinion, national or
social origin, property, birth or any
other status. The religious beliefs
and moral precepts of prisoners
shall be respected.
 2. In order for the principle of non-
discrimination to be put into practice,
prison administrations shall take
account of the individual needs of
prisoners, in particular the most
vulnerable categories in prison
settings. Measures to protect and
promote the rights of prisoners with
special needs are required and shall
not be regarded as discriminatory
 Rule 3 Imprisonment and other
measures that result in cutting off
persons from the outside world are
afflictive by the very fact of taking
from these persons the right of self-
determination by depriving them of
their liberty. Therefore the prison
system shall not, except as
incidental to justifiable separation or
the maintenance of discipline,
aggravate the suffering inherent in
such a situation.