“10 Basic Rights of Accused Persons in Criminal Proceedings”

Drafted by Dr. Markus Englerth

1. Presumption of Innocence

Criminal proceedings which start from a presumption of guilt and put the onus to
prove one’s innocence on the accused are inherently unfair. It is not by accident that
virtually all enlightened judicial systems take the opposite approach, assuming that, in
Blackstone’s famous words, “it is better that ten guilty persons escape than that one
innocent suffer”. Today the presumption of innocence is explicitly recognized not only
by the Article 11 (1) of the Universal Declaration of Human Rights but also by most
constitutions and a plethora of international treaties. While its results may at times be
hard for the public to stomach any encroachment upon this fundamental principle must
be resisted.

2. Freedom from Self-Incrimination

In a fair judicial system no person must be forced to incriminate himself. This principle,
which is enshrined in many constitutions and human rights treaties, must be
understood broadly. Not only is
it impermissible to torture the accused to obtain a confession. Every kind of undue
pressure exercised to obtain a statement from an accused person who has expressed his
will to remain silent must be deemed illegal. The same holds true of other inacceptable
methods (e.g. administering of psychoactive substances) meant to induce the accused to
testify against himself. Law enforcement authorities should be obliged to inform the
accused of his right to remain silent upon first contact. It furthermore appears desirable
that this right be extended to close family of the accused, who should not be forced to
choose between their familial and their civic obligations.

3. Right to a Hearing and Effective Remedy

Whilst every accused person must enjoy a right to remain silent, some may want to
speak out and tell their part of the story. No fair judicial system will ignore this wish to
become an autonomous participant in the proceedings. In fact, a criminal case cannot be
concluded before the accused has been granted a chance to make himself heard. This is
why convictions in absentia are always problematic and, at least in cases where not
even a lawyer was able to speak on the accused’s behalf, incompatible with the rule of
law.

The accused should, furthermore, be allowed to ask for new and potentially exonerating
evidence to be taken and considered by the authorities. At least during the trial-stage of
a criminal proceeding this should correspond with the right to have this petition
evaluated by a judge. A refusal to take the evidence must be justified in a reasoned
manner.
The right to make oneself heard furthermore includes the right to raise objections to the
behavior of courts and law enforcement authorities. If the accused is convinced that his
rights have been violated, he must have an effective opportunity to voice his complaint.
If it is found valid the violation must be redressed in an appropriate manner.

4. Swiftness of Justice

Justice delayed is justice denied. While this statement holds true for most legal disputes
it is of particular relevance to criminal proceedings. Living under the Damocles sword
of a prison sentence takes a tremendous emotional toll of the accused. Every defense
lawyer can attest to the harmful effects which months or years of existential uncertainty
will have on clients. By the end of a lengthy trial the accused will often find herself out
of a job, with a marriage in tatters or a once flourishing business ruined. Many suffer
from depression or stress-related illnesses. Even an eventual acquittal can feel like a
Pyrrhus victory under such circumstances.

What is worse sometimes prosecutors will actively exploit these effects to force a deal.
They count on the fact that many individuals cannot withstand months of preliminary
detention or that their businesses will not survive an extended trial with their assets
“precautionally” frozen. If in this situation the accused is offered a speedy resolution in
exchange for an admission of guilt it will feel like extortion rather than a choice.
Practices of this kind can amount to duress and therefore need to be unequivocally
condemned as prosecutorial misconduct.

The state has a responsibility to ensure a speedy process and avoid undue delays. As
evidently swiftness of justice cannot come at the price of decreased thoroughness it
requires that law enforcement authorities be appropriately funded and well staffed.
Where delays are inevitable nonetheless appropriate mechanisms of compensation need
to be found. Never should criminal proceedings amount to a punishment in themselves.

5. Access to Counsel and Other Assistance

Every defendant must be allowed access to a lawyer of his choosing at every stage of a
criminal proceeding. Law enforcement failing to inform the accused of this right or
deliberately obstructing its exercise must face consequences while statements obtained
under such circumstances should be deemed inadmissible. If the accused cannot afford
to hire a lawyer legal aid must be granted to guarantee a fair representation of his
interests.

Furthermore, some accused persons are at a natural disadvantage when it comes to

asserting their interests and adequately defending themselves. A blind person cannot
read the charges against him, a foreigner may not be able to communicate with the
authorities and a mentally disabled person will require extra help to understand what is
happening during a criminal trial.
In these circumstances law enforcement authorities and courts have a duty to assist the
accused person in any way possible to restore his autonomy regardless of financial
means. Thus, a foreigner has a right to an interpreter and a hearing-impaired person
must be equipped with a hearing aid or a sign language interpreter.

This is a necessary precondition for a fair trial which does not condemn the accused to
the role of a passive observer unable to fend for himself.

6. Equal Fighting Chances

Even when the accused is assisted by counsel she will nearly always be in a weaker
position than the public prosecutor, who not only has at his disposal an entire police
force but is vested with far reaching official powers. To mitigate this asymmetry
between the state and the accused individual procedural rules must, at the very least,
strive to level the playing field in some respects.

Most importantly, the accused cannot be convicted on charges she was never informed
of. Likewise she cannot be found guilty on the basis of evidence she does not know and
did not have a chance to examine for herself.

Closely connected to the aforementioned principle is the right to confront witnesses.

The accused is entitled to know who is accusing her. She must also be given a chance to
confront the accuser and challenge his account. An accuser who remains in the shadows
and can only be questioned by the prosecution is dubious and his statements can never
be the basis for a criminal conviction.

Moreover, law enforcement authorities need to document every investigative step they
undertake. While hidden surveillance and other secretive measures may sometimes be
deemed necessary, they too need to be recorded. Once the accused is indicted, she has a
right to access this record and to learn what evidence the prosecution intends to rely on
and how it was obtained.

Even considerations of national security cannot justify a deviation from these principles.
A criminal trial with unknown charges and secret evidence would constitute nothing
short of a kafkaesk nightmare.

7. Transparency

Criminals may hold their meetings behind closely guarded doors; a criminal court may
not. In camera trials are incompatible with a liberal idea of justice. Some degree of
transparency and public scrutiny is vital to insure that the rule of law is not perverted.
The public and the media, while often driven by other other motives, play an important
role as watchdogs over the judicial system. They should be granted access to the
courtroom and allowed to report freely and critically on the workings of the judicial
machinery.
Restrictions concerning media access and coverage will sometimes be necessary lest the
trial become a spectacle. Their purpose, however, cannot be to shield the judiciary from
the critical gaze of outsiders but only to allow the accused a modicum of privacy.

8. Proportionality of means

Not everything that can be done to convict a criminal must be done. 24/7 video
surveillance of an individual’s living quarters only to catch a shoplifter is evidently
excessive. So is pretrial detention without proper cause. Such disproportionate use of
the state’s capabilities will inevitably prove corrosive to a free society. Liberals, in
particular, should be wary of ever widening government surveillance and an
increasingly reckless exploitation of the investigative toolkit in minor cases.

9. Impartiality and Non-Discrimination

Whether the accused is the Pope or a homeless person must not matter to the judicial
system. Both should be prosecuted and tried according to the same rules and with the
same degree of diligence. Whether a judge or police officer agrees with the lifestyle or
political and religious convictions of an accused person likewise cannot influence their
behavior. Any kind of discrimination on the basis of age, caste, ethnicity, gender,
religion, nationality, employment or sexual orientation must be avoided.

Least of all should personal connections influence the way an accused is treated. A
judge or juror with a personal stake in the matter before her should have to recuse
herself.

Furthermore, to ensure the impartiality of criminal proceedings all decision-makers

involved should be shielded from undue outside influence. Judges in particular must
enjoy a largely independent position and should not take order from politicians.

Economic factors too play an important role. If police or judges earn too little to support
their family they will be very tempted to accept bribes and carry favors for the wealthy.
Underpaid officials are the number one cause for widespread corruption.

Finally, if the accused has reason to fear that inappropriate motives are influencing the
course of the investigation he needs to be given a chance to voice his concerns and have
an independent body make a determination as to their substance.

10. Dignity

All aforementioned principles serve to protect the dignity of the accused as a human
being. He must never be reduced to a mere object whose fate is being negotiated but
retain the chance to be an active participant in the proceedings.
Regardless of the charges in question, the accused individual’s dignity places
insurmountable restrictions on what law enforcement and the courts may do. Any form
of torture, abuse and cruelty as a measure of interrogation is absolutely impermissible.
The accused is to be treated with respect by all agents of the state and protected from
unnecessary humiliation and degradation. Shaming, applied in some states as a
penalty, can never be justified as part of the investigative process. Humiliating public
confessions, whether as a result of coercion or subtle pressure, have no place in a liberal
judicial system. Using one accused person as a means to deter others or to “make
a statement” is incompatible with all acceptable notions of dignity and equality.

The dignity of the individual is non-negotiable regardless of the circumstances. Failure

to recognize it disqualifies a person from serving in law enforcement and should itself
be deemed a criminal offence. There can be no impunity for those who violate essential
human rights in the name of law enforcement or justice. https://liberal-
international.org/what-we-do/events/executive-committee-meetings/marrakech-
2016/10-basic-rights-accused-persons-criminal-proceedings-marrakech-2016/

THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES – ARTICLE

III

ARTICLE III

BILL OF RIGHTS

Section 1. No person shall be deprived of life, liberty, or property without due process
of law, nor shall any person be denied the equal protection of the laws.

Section 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.

Section 3. (1) The privacy of communication and correspondence shall be inviolable

except upon lawful order of the court, or when public safety or order requires
otherwise, as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.
Section 4. No law shall be passed abridging the freedom of speech, of expression, or of
the press, or the right of the people peaceably to assemble and petition the government
for redress of grievances.

Section 5. No law shall be made respecting an establishment of religion, or prohibiting

the free exercise thereof. The free exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall forever be allowed. No religious
test shall be required for the exercise of civil or political rights.

Section 6. The liberty of abode and of changing the same within the limits prescribed by
law shall not be impaired except upon lawful order of the court. Neither shall the right
to travel be impaired except in the interest of national security, public safety, or public
health, as may be provided by law.

Section 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents and papers pertaining to
official acts, transactions, or decisions, as well as to government research data used as
basis for policy development, shall be afforded the citizen, subject to such limitations as
may be provided by law.

Section 8. The right of the people, including those employed in the public and private
sectors, to form unions, associations, or societies for purposes not contrary to law shall
not be abridged.

Section 9. Private property shall not be taken for public use without just compensation.

Section 10. No law impairing the obligation of contracts shall be passed.

Section 11. Free access to the courts and quasi-judicial bodies and adequate legal
assistance shall not be denied to any person by reason of poverty.

Section 12. (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 and rehabilitation of victims of torture or similar practices, and
their families.

Section 13. All persons, except those charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall, before conviction, be bailable by
sufficient sureties, or be released on recognizance as may be provided by law. The right
to bail shall not be impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required.

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.

Section 15. The privilege of the writ of habeas corpus shall not be suspended except in
cases of invasion or rebellion when the public safety requires it.

Section 16. All persons shall have the right to a speedy disposition of their cases before
all judicial, quasi-judicial, or administrative bodies.

Section 17. No person shall be compelled to be a witness against himself.

Section 18. (1) No person shall be detained solely by reason of his political beliefs and
aspirations.

(2) No involuntary servitude in any form shall exist except as a punishment for a crime
whereof the party shall have been duly convicted.

Section 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall the death penalty be imposed, unless, for
compelling reasons involving heinous crimes, the Congress hereafter provides for it.
Any death penalty already imposed shall be reduced to reclusion perpetua.

(2) The employment of physical, psychological, or degrading punishment against any

prisoner or detainee or the use of substandard or inadequate penal facilities under
subhuman conditions shall be dealt with by law.
Section 20. No person shall be imprisoned for debt or non-payment of a poll tax.

Section 21. No person shall be twice put in jeopardy of punishment for the same
offense. If an act is punished by a law and an ordinance, conviction or acquittal under
either shall constitute a bar to another prosecution for the same act.

Section 22. No ex post facto law or bill of attainder shall be enacted.

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.

Sec. 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)
(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.

(c) The custodial investigation report shall be reduced to writing by the

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 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.

PPESMMMD
Parents,
Priest,
Elder brothers and sisters,
Spouse,
Municipal mayor,
Municipal judge
Minister of the gospel
District school supervisor,

(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 (MM PHIN)
Member of his immediate family
Medical doctor

Priest or religious minister

His counsel,
International non-governmental organization duly accredited by the Office of the
President.
National non-governmental organization duly accredited by the Commission on
Human Rights

The person's "immediate family" shall include (SPC BF GGGUN)

Spouse,
Parent
Child,

Brother or sister,
Fiancé or fiancée

Grandparent or
Grandchild,
Guardian or ward.
Uncle or aunt,
 Nephew or niece,

As used 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.

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.

Due Process Clause, which protects you from suffering certain consequences
without due process of law. As the judicial interpretation of the Due Process
Clause has evolved, it has been subdivided into two guarantees: substantive due
process and procedural due process. Substantive due process refers to specific
rights, such as rights related to free speech, voting, and association. Procedural
due process ensures that the adjudication process, the way you are tried for a
crime, is fair and impartial.

The Miranda Warnings

1966 ruling in Miranda v. Arizona, that anyone taken into custody be

provided with notice of the following: (RARI)

 Right to remain silent;

 Anything they say can and will be used against them in a court of law;
 Right to be represented by counsel; and
 If they cannot afford an attorney, one will be appointed for them.

FIRST: What is Police Custodial Investigation?

Our Supreme Court consistently defines custodial investigation as the stage

where an investigation is no longer a general inquiry into an unsolved crime
but has begun to focus on a particular suspect taken into custody by the
police or other law enforcement agents who carry out a process of
interrogation that lends itself to elicit incriminating statements. It involves
questioning initiated by law enforcement officers after a person has been
taken into custody or deprived of freedom of action in any significant way .
However, Republic Act No. 7438, or the Act Defining Certain Rights of
Person Arrested, Detained or Under Custodial Investigation , has expanded
the definition of custodial investigation. Specifically, the law provides that
said 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.

Given this, it is incorrect to conclude that custodial investigation is always

the consequence of an arrest. Someone can be considered to be under
custodial investigation when invited for questioning by law enforcement
officers, even though the person has not been formally arrested.

SECOND: What are the Rights Guaranteed to a Person under Custodial

Investigation?

After knowing what’s custodial investigation, the next crucial matter to

discuss is the rights of persons subjected thereto.

1. Miranda Rights

Article III, Section 12 (1) of the Constitution provides that any person under
investigation for the commission of an offense is guaranteed the following
rights

a. The right to remain silent – A person under custodial investigation has

the right to refuse answering any question. If he indeed refuses, this may not
be used against him.

b. The right to competent and independent counsel, preferably of his own

choice. If the person cannot afford services of counsel, he must be
provided with one – In People v. Rapeza (G.R. No. 169431) , the Supreme
Court held that the purpose of providing counsel to a person under custodial
investigation is to curb the police-state practice of extracting a confession
that leads suspects to make self-incriminating statements. In order to comply
with the constitutional mandate, there should be meaningful communication
to, and understanding of rights by the suspect, as opposed to a routine,
peremptory and meaningless recital thereof.

Not only does a person under custodial investigation have the right to
counsel, but the provision states that said counsel must be an independent
and competent one, preferably of his own choice. Jurisprudence explains that
the lawyer called to be present during the investigation should be as far as
reasonably possible the choice of the individual undergoing questioning. If
the lawyer were one furnished in the person’s behalf, he should be present
and able to advise and assist his client from the time the latter answers the
first question asked by the investigating officer until the signing of the
extrajudicial confession, if any. The lawyer should ascertain that the
confession is made voluntarily and the person under investigation fully
understands the nature and consequences of his confession in relation to his
constitutional rights.

c. The right to be informed of such rights – In affording this right to a

person under custodial investigation, it is not sufficient that the
investigating officer reads out the rights, or merely repeats what is stated in
the constitutional provision. The officer is duty-bound to also explain the
effects of these rights and ensure the person’s understanding thereof, in a
language known to and understood by him.

These three rights, widely known as the “Miranda rights”, were adopted by
Philippine jurisprudence and later on included in the drafting of the 1987
Philippine Constitution, following the 1966 decision of the United States
Supreme Court in the landmark case of Miranda v. Arizona (384 U.S. 436) .
Here, the defendants made confessions or admissions without any evidence
of them being apprised of their constitutional rights during the interrogation
process. The US Supreme Court held that no statements stemming from
questioning initiated by law enforcement officers may be used by the
prosecution, unless it demonstrates the use of procedural safeguards
effective to secure the constitutional rights of a person under custodial
interrogation.

These rights may not be waived unless made in writing and in the presence
and assistance of counsel.

But note that not all types of investigatory situations are classified as
custodial investigations where these rights may be invoked.

In People v. Gamboa (G.R. No. 91374) , the Supreme Court held that
subjection to paraffin test does not require that the right to have competent
and independent counsel be afforded as this is necessary only in testimonial
compulsions, not when it is the body of the accused which is proposed to be
examined. Another example would be People v. Rueras (G.R. 174471) , where
the Supreme Court reiterated the view that police lineups are not part of
custodial investigation; therefore, the right to counsel cannot be invoked at
this stage.

2. Right against Torture, Force, Violence, Threat, Intimidation

Article III, Section 12 of the Constitution further provides that no torture,
violence threat, intimidation, or any other means which vitiate the freewill
shall be used against a person under investigation for the commission of an
offense. It further states that the use of secret detention places, solitary,
incommunicado or other similar forms of detention are prohibited.

3. Right to Visits and Conferences

In addition to the constitutional rights, Republic Act No. 7438 provides that a
person under custodial investigation shall be allowed visits by or
conferences with any member of his immediate family (spouse, fiancé or
fiancée, parent or child, sibling, grandparent or grandchild, aunt or uncle,
niece or nephew, guardian or ward), or by counsel, or by any national non-
governmental organization duly accredited by the Commission on Human
Rights, or by any international non-governmental organization duly
accredited by the Office of the President.

(To know more about a person’s rights during inquest proceedings, see
Senior Partner Sig Fortun’s quick guide .)

THIRD: What are the Effects of, and Sanctions for, Violation of these Rights?

Article III, Section 12(3) of the Constitution states that any confession or
admission in violation of the above rights shall be inadmissible in evidence.
This is called the exclusionary rule. A confession or admission should be
given voluntarily, free from any suspicious circumstances tending to cast
doubt upon the integrity thereof. Otherwise, the same cannot be used as
evidence in any proceeding against the source of confession or admission.

Confessions or admissions covered by this provision need not be explicit, as

long as they are part of evidence communicative in nature. In People v.
Jungco (G.R. No. 78531) , the Supreme Court applied this rule to participation
of the accused in a re-enactment of the crime scene. In People v. Enriquez
(G.R. No. 90738) , the High Court held that the marijuana cigarettes where the
accused wrote his name without the assistance of counsel is inadmissible as
evidence.

If the constitutional rights of a person under custodial investigation are

violated, there are corresponding penal and civil sanctions, as well as
compensation to and rehabilitation of victims of torture or similar practices,
and their families. These sanctions are provided for in different statutes, i.e.,
civil sanctions, in the form of damages, covered by Article 32 of the New
Civil Code , and penal sanctions covered by the penal clause of Republic Act
No. 7438 , where a fine, penalty, or both, may be imposed upon an erring
officer.
FOURTH: When do these Rights Cease to be Available?

Custodial investigation does not include quasi-judicial or judicial

investigations conducted by the fiscal or the judge. Thus, in People v. Ayson
(G.R. No. 85215) , Justice Andres Narvasa discussed that the rights of a
person under custodial interrogation do not apply or extend to persons
under preliminary investigation, or those already charged in court for a
crime.

Having said all these, you might be thinking that custodial investigation is
probably (read: definitely) not a situation you would imagine or choose
yourself to be in.

However, preparedness is always key.

(Belinda Grace G. Gervasio joined the Firm in 2018 and assists Founding
Partner Sig Fortun in handling criminal law cases primarily defending
accused individuals. Sig’s email is psafortun@fnslaw.com.ph while Bel may
be reached at bggervasio@fnslaw.com.ph .)

This is different from preliminary investigation but it serves the same purpose: to
protect the rights of a detained person.