Professional Documents
Culture Documents
CrimPro Reviewer (Midterms)
CrimPro Reviewer (Midterms)
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cases falling within the exclusive original (Jurisdiction over the Person)
jurisdiction of Regional Trial Courts and of the
Sandiganbayan, the Metropolitan Trial Courts,
Section 14. Venue. Subject to the provisions of
Municipal Trial Courts, and Municipal Circuit
Section 15, Rule 110 of the Revised Rules of
Trial Courts shall exercise:
Criminal Procedure, any criminal or civil action
involving a juvenile in conflict with the law shall
(1) Exclusive original jurisdiction over
be instituted and tried in the Family Court of or
all violations of city or municipal
nearest the place where the offense was committed
ordinances committed within their
or where any of its essential elements occurred.
respective territorial jurisdiction; and
(c) Where an offense is committed on board a b) The full and complete name and exact
vessel in the course of its voyage, the criminal home, office or postal address of the
action shall be instituted and tried in the court of respondent;
the first port of entry or of any municipality or
territory where the vessel passed during such c) The offense charged and the place and
voyage, subject to the generally accepted principles exact date and time of its commission;
of international law. and
(d) Crimes committed outside the Philippines d) Whether or not there exists a related case
but punishable under Article 2 of the Revised and, if so, the docket number of said
Penal Code shall be cognizable by the court where
case and the name of the Investigating
the criminal action is first filed. (15a)
Prosecutor thereof.
-Rule 110, Sec. 15 ROC
-Part III, Sec. 8 DOJ -NPS Manual
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Section 5. Who must prosecute criminal actions. Form and Content
All criminal actions commenced by a complaint a. Procedural
or information shall be prosecuted under the i. Name of accused and offended party
direction and control of the prosecutor. In case of Section 7. Name of the accused. The
heavy work schedule of the public prosecutor or in complaint or information must state the
the event of lack of public prosecutors, the private name and surname of the accused or any
prosecutor may be authorized in writing by the appellation or nickname by which he has
Chief of the Prosecution Office or the Regional been or is known. If his name cannot be
State Prosecution to prosecute the case subject to ascertained, he must be described under a
the approval of the Court. Once so authorized to fictitious name with a statement that his
prosecute the criminal action, the private true name is unknown.
prosecutor shall continue to prosecute the case up
to the end of the trial even in the absence of a
public prosecutor, unless the authority is revoked Section 12. Name of the offended party.
or otherwise withdrawn. The complaint or information must
state the name and surname of the person
against whom or against whose property
The crimes of adultery and concubinage shall not the offense was committed, or any
be prosecuted except upon a complaint filed by the appellation or nickname by which such
offended spouse. The offended party cannot person has been or is known. If there is
institute criminal prosecution without including the no better way of identifying him, he must
guilty parties, if both alive, nor, in any case, if the be described under a fictitious name.
offended party has consented to the offense or
pardoned the offenders.
(a) In offenses against property, if the
name of the offended party is
The offenses of seduction, abduction and acts of unknown, the property must be
lasciviousness shall not be prosecuted except upon described with such particularity as to
a complaint filed by the offended party or her properly identify the offense charged.
parents, grandparents or guardian, nor, in any case,
if the offender has been expressly pardoned by any
of them. If the offended party dies or becomes (b) If the true name of the of the
incapacitated before she can file the complaint, and person against whom or against
she has no known parents, grandparents or whose properly the offense was
guardian, the State shall initiate the criminal action committed is thereafter disclosed or
in her behalf. ascertained, the court must cause the
true name to be inserted in the
complaint or information and the
The offended party, even if a minor, has the right to record.
initiate the prosecution of the offenses of seduction,
abduction and acts of lasciviousness independently
of her parents, grandparents, or guardian, unless (c) If the offended party is a juridical
she is incompetent or incapable of doing so. Where person, it is sufficient to state its
the offended party, who is a minor, fails to file the name, or any name or designation by
complaint, her parents, grandparents, or guardian which it is known or by which it may
may file the same. The right to file the action be identified, without need of
granted to parents, grandparents or guardian shall averring that it is a juridical person or
be exclusive of all other persons and shall be that it is organized in accordance with
exercised successively in the order herein provided, law. (12a)
except as stated in the preceding paragraph.
-Rule 110, Secs 7 and 12 ROC
No criminal action for defamation which consists
in the imputation of the offenses mentioned above ii. Designation of offense
shall be brought except at the instance of and upon -By the statute
complaint filed by the offended party. (5a) -By mentioning the provision violated
The prosecution for violation of special laws shall Section 8. Designation of the offense.
be governed by the provisions thereof. (n) The complaint or information shall state
the designation of the offense given by
Section 16. Intervention of the offended party in the statute, aver the acts or omissions
criminal action. Where the civil action for constituting the offense, and specify its
recovery of civil liability is instituted in the qualifying and aggravating
criminal action pursuant to Rule 111, the offended circumstances. If there is no designation
party may intervene by counsel in the prosecution of the offense, reference shall be made to
of the offense. (16a) the section or subsection of the statute
punishing it. (8a)
-Rule 110, Sec. 5 and 16 ROC
-Rule 110, Sec. 8 ROC
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SEC. 40. Designation of offense charged. ii. Cause of accusation
Section 9. Cause of the accusation.
- For offenses that are punishable under
The acts or omissions complained of as
the Revised Penal Code, the caption shall constituting the offense and the
set forth the denomination of the offense qualifying and aggravating circumstances
must be stated in ordinary and concise
and the specific article and paragraph of language and not necessarily in the
the statute violated. language used in the statute but in terms
sufficient to enable a person of common
-Part III, Sec. 40 DOJ-NPS Manual understanding to know what offense is
being charged as well as its qualifying
iii. Formal Amendment and aggravating circumstances and for
the court to pronounce judgment. (9a)
According to Atty. Canlas, before
arraignment, formal amendment can be -Rule 110, Sec. 9 ROC
done without leave of court. After
arraignment, formal amendment can be iii. Date, place and time of commission
done with leave of court. Section 10. Place of commission of the
offense. The complaint or information
Section 14. Amendment or substitution. is sufficient if it can be understood from
A complaint or information may be its allegations that the offense was
amended, in form or in substance, committed or some of the essential
without leave of court, at any time before ingredients occurred at some place within
the accused enters his plea. After the plea the jurisdiction of the court, unless the
and during the trial, a formal amendment particular place where it was committed
may only be made with leave of court constitutes an essential element of the
and when it can be done without causing offense or is necessary for its
prejudice to the rights of the accused. identification. (10a)
However, any amendment before plea, Section 11. Date of commission of the
which downgrades the nature of the offense. It is not necessary to state in
offense charged in or excludes any the complaint or information the precise
accused from the complaint or date the offense was committed except
information, can be made only upon when it is a material ingredient of the
motion by the prosecutor, with notice to offense. The offense may be alleged to
the offended party and with leave of have been committed on a date as near as
court. The court shall state its reasons in possible to the actual date of its
resolving the motion and copies of its commission. (11a)
order shall be furnished all parties,
especially the offended party. (n) -Rule 110, Secs. 10 and 11 ROC
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SEC. 23. Concept of prejudicial question.- A
Section 1. Time to move to quash. At any
prejudicial question is one the resolution of which
time before entering his plea, the accused may
is a logical antecedent of the issue involved in a move to quash the complaint or information.
case and the cognizance of which pertains to (1)
another tribunal. It is based on a fact distinct and
Section 2. Form and contents. The motion
separate from the crime charged but so intimately to quash shall be in writing, signed by the
connected with it that it determines the guilt or accused or his counsel and shall distinctly
innocence of the accused. To suspend the criminal specify its factual and legal grounds. The
court shall consider no ground other than
action, it must not only appear that said case those stated in the motion, except lack of
involves facts intimately related to those upon jurisdiction over the offense charged. (2a)
which the criminal prosecution would be based but
also that in the resolution of the issue or issues Section 3. Grounds. The accused may
move to quash the complaint or information
raised in the civil case, the guilt or innocence of the on any of the following grounds:
accused would necessarily be determined.
(a) That the facts charged do not
SEC. 24. Elements of prejudicial question. - The constitute an offense;
essential elements of a prejudicial question are:
(b) That the court trying the case has
no jurisdiction over the offense
a) the civil action involves an issue similar charged;
or intimately related to the issue raised in
the criminal action; (c) That the court trying the case has
no jurisdiction over the person of
b) the resolution of such issue determines
the accused;
whether or not the criminal action may
proceed ; and (d) That the officer who filed the
c) the cognizance of the said issue pertains information had no authority to do
so;
to another tribunal.
-Part III, Secs. 23 and 24 DOJ-NPS Manual (e) That it does not conform
substantially to the prescribed form;
Remedies Available
(f) That more than one offense is
a. Amendment/Substitution of Information charged except when a single
Section 14. Amendment or substitution. A punishment for various offenses is
complaint or information may be amended, in prescribed by law;
form or in substance, without leave of court, at
any time before the accused enters his plea.
After the plea and during the trial, a formal (g) That the criminal action or
amendment may only be made with leave of liability has been extinguished;
court and when it can be done without causing
prejudice to the rights of the accused. (h) That it contains averments
which, if true, would constitute a
-Rule 110, Sec. 14 ROC legal excuse or justification; and
b. Motion to Quash
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If it is based on the ground that the facts entered in the former complaint or
charged do not constitute an offense, the information; or
prosecution shall be given by the court an
opportunity to correct the defect by (c) the plea of guilty to the lesser
amendment. The motion shall be granted if the offense was made without the
prosecution fails to make the amendment, or consent of the prosecutor and of the
the complaint or information still suffers from offended party except as provided in
the same defect despite the amendment. (n) section 1 (f) of Rule 116.
Section 5. Effect of sustaining the motion to In any of the foregoing cases, where the
quash. If the motion to quash is sustained, accused satisfies or serves in whole or in part
the court may order that another complaint or the judgment, he shall be credited with the
information be filed except as provided in same in the event of conviction for the graver
section 6 of this rule. If the order is made, the offense. (7a)
accused, if in custody, shall not be discharged
unless admitted to bail. If no order is made or
if having been made, no new information is Section 8. Provisional dismissal. A case
filed within the time specified in the order or shall not be provisionally dismissed except
within such further time as the court may with the express consent of the accused and
allow for good cause, the accused, if in with notice to the offended party.
custody, shall be discharged unless he is also
in custody for another charge. (5a) The provisional dismissal of offenses
punishable by imprisonment not exceeding six
Section 6. Order sustaining the motion to (6) years or a fine of any amount, or both,
quash not a bar to another shall become permanent one (1) year after
prosecution; exception. An order sustaining issuance of the order without the case having
the motion to quash is not a bar to another been revived. With respect to offenses
prosecution for the same offense unless the punishable by imprisonment of more than six
motion was based on the grounds specified in (6) years, their provisional dismissal shall
section 3 (g) and (i) of this Rule. (6a) become permanent two (2) years after
issuance of the order without the case having
been revived. (n)
Section 7. Former conviction or
acquittal; double jeopardy. When an
accused has been convicted or acquitted, or Section 9. Failure to move to quash or to
the case against him dismissed or otherwise allege any ground therefor. The failure of
terminated without his express consent by a the accused to assert any ground of a motion
court of competent jurisdiction, upon a valid to quash before he pleads to the complaint or
complaint or information or other formal information, either because he did not file a
charge sufficient in form and substance to motion to quash or failed to allege the same in
sustain a conviction and after the accused had said motion, shall be deemed a waiver of any
pleaded to the charge, the conviction or objections based on the grounds provided for
acquittal of the accused or the dismissal of the in paragraphs (a), (b), (g), and (i) of section 3
case shall be a bar to another prosecution for of this Rule. (8)
the offense charged, or for any attempt to
commit the same or frustration thereof, or for -Rule 117 ROC
any offense which necessarily includes or is
necessarily included in the offense charged in Section 19. When mistake has been made in
the former complaint or information. charging the proper offense. When it
becomes manifest at any time before judgment
However, the conviction of the accused shall that a mistake has been made in charging the
not be a bar to another prosecution for an proper offense and the accused cannot be
offense which necessarily includes the offense convicted of the offense charged or any other
charged in the former complaint or offense necessarily included therein, the
information under any of the following accused shall not be discharged if there
instances: appears good cause to detain him. In such
case, the court shall commit the accused to
(a) the graver offense developed due answer for the proper offense and dismiss the
to supervening facts arising from the original case upon the filing of the proper
same act or omission constituting information. (11a)
the former charge;
-Rule 119, Sec. 19 ROC
(b) the facts constituting the graver
charge became known or were c. Bill of Particulars
discovered only after a plea was -a plea to the court for the petitioner to be
more specific
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attached as security for the satisfaction of any
According to Atty. Canlas, this is rarely judgment that may be recovered in the
used in criminal proceedings. In fact, following cases:
lawyers will move for the dismissal of a case
if the information/ complaint is not specific. (a) In an action for the recovery of a
specified amount of money or
Section 9. Bill of particulars. The accused damages, other than moral and
may, before arraignment, move for a bill of exemplary, on a cause of action
particulars to enable him properly to plead and arising from law, contract, quasi-
to prepare for trial. The motion shall specify contract, delict or quasi-delict
the alleged defects of the complaint or against a party who is about to
information and the details desired. (10a) depart from the Philippines with
intent to defraud his creditors;
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equal to that fixed in the order, which may be the defendant is a resident of the Philippines
the amount sufficient to satisfy the applicant's temporarily absent therefrom, or the
demand or the value of the property to be defendant is a non-resident of the Philippines,
attached as stated by the applicant, exclusive or the action is one in rem or quasi in rem.
of costs. Several writs may be issued at the (5a)
same time to the sheriffs of the courts of
different judicial regions. (2a) Section 6. Sheriff's return. After enforcing
the writ, the sheriff must likewise without
Section 3. Affidavit and bond required. An delay make a return thereon to the court from
order of attachment shall be granted only which the writ issued, with a full statement of
when it appears by the affidavit of the his proceedings under the writ and a complete
applicant, or of some other person who inventory of the property attached, together
personally knows the facts, that a sufficient with any counter-bond given by the party
cause of action exists, that the case is one of against whom attachment is issued, and serve
those mentioned in section 1 hereof, that there copies thereof on the applicant. (6a)
is no other sufficient security for the claim
sought to be enforced by the action, and that Section 7. Attachment of real and personal
the amount due to the applicant, or the value property; recording thereof. Real and
of the property the possession of which he is personal property shall be attached by the
entitled to recover, is as much as the sum for sheriff executing the writ in the following
which the order is granted above all legal manner:
counterclaims. The affidavit, and the bond
required by the next succeeding section, must
be duly filed with the court before the order (a) Real property, or growing crops
issues. (3a) thereon, or any interest therein,
standing upon the record of the
registry of deeds of the province in
Section 4. Condition of applicant's bond. the name of the party against whom
The party applying for the order must attachment is issued, or not
thereafter give a bond executed to the adverse appearing at all upon such records,
party in the amount fixed by the court in its or belonging to the party against
order granting the issuance of the writ, whom attachment is issued and held
conditioned that the latter will pay all the by any other person, or standing on
costs which may be adjudged to the adverse the records of the registry of deeds
party and all damages which he may sustain in the name of any other person, by
by reason of the attachment, if the court shall filing with the registry of deeds a
finally adjudge that the applicant was not copy of the order, together with a
entitled thereto. (4a) description of the property attached,
and a notice that it is attached, or
Section 5. Manner of attaching property. that such real property and any
The sheriff enforcing the writ shall without interest therein held by or standing
delay and with all reasonable diligence attach, in the name of such other person are
to await judgment and execution in the action, attached, and by leaving a copy of
only so much of the property in the such order, description, and notice
Philippines of the party against whom the writ with the occupant of the property, if
is issued, not exempt from execution, as may any, or with such other person or his
be sufficient to satisfy the applicant's demand, agent if found within the province.
unless the former makes a deposit with the Where the property has been
court from which the writ is issued, or gives a brought under the operation of
counter-bond executed to the applicant, in an either the Land Registration Act or
amount equal to the bond fixed by the court in the Property Registration Decree,
the order of attachment or to the value of the the notice shall contain a reference
property to be attached, exclusive of costs. No to the number of the certificate of
levy on attachment pursuant to the writ issued title, the volume and page in the
under section 2 hereof shall be enforced registration book where the
unless it is preceded, or contemporaneously certificate is registered, and the
accompanied, by service of summons, registered owner or owners thereof.
together with a copy of the complaint, the
application for attachment the applicant's The registrar of deeds must index
affidavit and bond, and the order and writ of attachments filed under this section
attachment, on the defendant within the in the names of the applicant, the
Philippines. adverse party, or the person by
whom the property is held or in
The requirement of prior or contemporaneous whose name it stands in the records.
service of summons shall not apply where the If the attachment is not claimed on
summons could not be served personally or by the entire area of the land covered
substituted service despite diligent efforts, or by the certificate of title, a
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description sufficiently accurate for possession or under their control any credits
the identification of the land or or other similar personal property belonging
interest to be affected shall be to the party against whom attachment is
included in the registration of such issued, or owing any debts to him, at the time
attachment; of service upon them of the copy of the writ
of attachment and notice as provided in the
(b) Personal property capable of last preceding section, shall be liable to the
manual delivery, by taking and applicant for the amount of such credits, debts
safely keeping it in his custody, or other similar personal property, until the
after issuing the corresponding attachment is discharged, or any judgment
receipt therefor. recovered by him is satisfied, unless such
property is delivered or transferred, or such
debts are paid, to the clerk, sheriff, or other
(c) Stocks or shares, or an interest in proper officer of the court issuing the
stocks or shares, of any corporation attachment. (8a)
or company, by leaving with the
president or managing agent
thereof, a copy of the writ, and a Section 9. Effect of attachment of interests in
notice stating that the stock or property belonging to the estate of a decedent.
interest of the party against whom The attachment of the interest of an heir,
the attachment is issued is attached legatee, or devisee in the property belonging
in pursuance of such writ; to the estate of a decedent shall not impair the
powers of the executor, administrator, or other
personal representative of the decedent over
(d) Debts and credits, including such property for the purpose of
bank deposits, financial interest, administration. Such personal representative,
royalties, commissions and other however, shall report the attachment to the
personal property not capable of court when any petition for distribution is
manual delivery, by leaving with filed, and in the order made upon such
the person owing such debts, or petition, distribution may be awarded to such
having in his possession or under heir, legatee or devisee, but the property
his control, such credits or other attached shall be ordered delivered to the
personal property, or with his agent, sheriff making the levy, subject to the claim
a copy of the writ, and notice that of such heir, legatee, or devisee, or any person
the debts owing by him to the party claiming under him. (9a)
against whom attachment is issued,
and the credits and other personal
property in his possession, or under Section 10. Examination of party whose
his control, belonging to said party, property is attached and persons indebted to
are attached in pursuance of such him or controlling his property; delivery of
writ; property to sheriff. Any person owing
debts to the party whose property is attached
or having in his possession or under his
(e) The interest of the party against control any credit or other personal property
whom attachment is issued in belonging to such party, may be required to
property belonging to the estate of attend before the court in which the action is
the decedent, whether as heir, pending, or before a commissioner appointed
legatee, or devisee, by serving the by the court, and be examined on oath
executor or administrator or other respecting the same. The party whose
personal representative of the property is attached may also be required to
decedent with a copy of the writ and attend for the purpose of giving information
notice that said interest is attached. respecting his property, and may be examined
A copy of said writ of attachment on oath. The court may, after such
and of said notice shall also be filed examination, order personal property capable
in the office of the clerk of the court of manual delivery belonging to him, in the
in which said estate is being settled possession of the person so required to attend
and served upon the heir, legatee or before the court, to be delivered to the clerk of
devisee concerned. the court or sheriff on such terms as may be
just, having reference to any lien thereon or
If the property sought to be attached is claim against the same, to await the judgment
in custodia legis, a copy of the writ of in the action. (10a)
attachment shall be filed with the proper court
or quasi-judicial agency, and notice of the Section 11. When attached property may be
attachment served upon the custodian of such sold after levy on attachment and before entry
property. (7a) of judgment. Whenever it shall be made to
appear to the court in which the action is
Section 8. Effect of attachment of pending, upon hearing with notice to both
debts, credits and all other similar personal parties, that the property attached is
property. All persons having in their perishable, or that the interests of all the
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parties to the action will be subserved by the excessive, and the defect is not cured
sale thereof, the court may order such forthwith. (13a)
property to be sold at public auction in such
manner as it may direct, and the proceeds of Section 14. Proceedings where property
such sale to be deposited in court to abide the claimed by third person. If the property
judgment in the action. (11a) attached is claimed by any person other than
the party against whom attachment had been
Section 12. Discharge of attachment upon issued or his agent, and such person makes an
giving counter-bond. After a writ of affidavit of his title thereto, or right to the
attachment has been enforced, the party possession thereof, stating the grounds of such
whose property has been attached, or the right or title, and serves such affidavit upon
person appearing on his behalf, may move for the sheriff while the latter has possession of
the discharge of the attachment wholly or in the attached property, and a copy thereof upon
part on the security given. The court shall, the attaching party, the sheriff shall not be
after due notice and hearing, order the bound to keep the property under attachment,
discharge of the attachment if the movant unless the attaching party or his agent, on
makes a cash deposit, or files a counter-bond demand of the sheriff, shall file a bond
executed to the attaching party with the clerk approved by the court to indemnify the third-
of the court where the application is made, in party claimant in a sum not less than the value
an amount equal to that fixed by the court in of the property levied upon. In case of
the order of attachment, exclusive of costs. disagreement as to such value, the same shall
But if the attachment is sought to be be decided by the court issuing the writ of
discharged with respect to a particular attachment. No claim for damages for the
property, the counter-bond shall be equal to taking or keeping of the property may be
the value of that property as determined by enforced against the bond unless the action
the court. In either case, the cash deposit or therefor is filed within one hundred twenty
the counter-bond shall secure the payment of (120) days from the date of the filing of the
any judgment that the attaching party may bond.
recover in the action. A notice of the deposit
shall forthwith be served on the attaching The sheriff shall not be liable for damages for
party. Upon the discharge of an attachment in the taking or keeping of such property to any
accordance with the provisions of this section, such third-party claimant, if such bond shall
the property attached, or the proceeds of any be filed. Nothing herein contained shall
sale thereof, shall be delivered to the party prevent such claimant or any third person
making the deposit or giving the counter- from vindicating his claim to the property, or
bond, or to the person appearing on his behalf, prevent the attaching party from claiming
the deposit or counter-bond aforesaid standing damages against a third-party claimant who
in place of the property so released. Should filed a frivolous or plainly spurious claim, in
such counter-bond for any reason be found to the same or a separate action.
be or become insufficient, and the party
furnishing the same fail to file an additional
counter-bond, the attaching party may apply When the writ of attachment is issued in favor
for a new order of attachment. (12a) of the Republic of the Philippines, or any
officer duly representing it, the filing of such
bond shall not be required, and in case the
Section 13. Discharge of attachment on other sheriff is sued for damages as a result of the
grounds. The party whose property has attachment, he shall be represented by the
been ordered attached may file a motion with Solicitor General, and if held liable therefor,
the court in which he action is pending, before the actual damages adjudged by the court
or after levy or even after the release of the shall be paid by the National Treasurer out of
attached property, for an order to set aside or the funds to be appropriated for the purpose.
discharge the attachment on the ground that (14a)
the same was improperly or irregularly issued
or enforced, or that the bond is insufficient. If
the attachment is excessive, the discharge Section 15. Satisfaction of judgment out of
shall be limited to the excess. If the motion be property attached, return of sheriff. If
made on affidavits on the part of the movant judgment be recovered by the attaching party
but not otherwise, the attaching party may and execution issue thereon, the sheriff may
oppose the motion by counter-affidavits or cause the judgment to be satisfied out of the
other evidence in addition to that on which the property attached, if it be sufficient for that
attachment was made. After due notice and purpose in the following manner:
hearing, the court shall order the setting aside
or the corresponding discharge of the (a) By paying to the judgment
attachment if it appears that it was improperly obligee the proceeds of all sales of
or irregularly issued or enforced, or that the perishable or other property sold in
bond is insufficient, or that the attachment is pursuance of the order of the court,
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or so much as shall be necessary to favor of the party against whom attachment
satisfy the judgment; was issued, the whole sum deposited must be
refunded to him or his assignee. (18a)
(b) If any balance remains due, by
selling so much of the property, real Section 19. Disposition of attached property
or personal, as may be necessary to where judgment is for party against whom
satisfy the balance, if enough for attachment was issued. If judgment be
that purpose remain in the sheriff's rendered against the attaching party, all the
hands, or in those the clerk of the proceeds of sales and money collected or
court; received by the sheriff, under the order of
attachment, and all property attached
(c) By collecting from all persons remaining in any such officer's hands, shall be
having in their possession credits delivered to the party against whom
belonging to the judgment obligor, attachment was issued, and the order of
or owing debts to the latter at the attachment discharged. (19a)
time of the attachment of such
credits or debts, the amount of such Section 20. Claim for damages on account of
credits and debts as determined by improper, irregular or excessive attachment.
the court in the action, and stated in An application for damages on account of
the judgment, and paying the improper, irregular or excessive attachment
proceeds of such collection over to must be filed before the trial or before appeal
the judgment obligee. is perfected or before the judgment becomes
executory, with due notice to the attaching
The sheriff shall forthwith make a return in party and his surety or sureties setting forth
writing to the court of his proceedings under the facts showing his right to damages and the
this section and furnish the parties with copies amount thereof. Such damages may be
thereof. (15a) awarded only after proper hearing and shall be
included in the judgment on the main case.
Section 16. Balance due collected upon an
execution; excess delivered to judgment If the judgment of the appellate court be
obligor. If after realizing upon all the favorable to the party against whom the
property attached, including the proceeds of attachment was issued he must claim damages
any debts or credits collected, and applying sustained during the pendency of the appeal
the proceeds to the satisfaction of the by filing an application in the appellate court,
judgment less the expenses of proceedings with notice to the party in whose favor the
upon the judgment any balance shall remain attachment was issued or his surety or
due, the sheriff must proceed to collect such sureties, before the judgment of the appellate
balance as upon ordinary execution. court becomes executory. The appellate court
Whenever the judgment shall have been paid, may allow the application to be heard and
the sheriff, upon reasonable demand, must decided by the trial court.
return to the judgment obligor the attached
property remaining in his hands, and any Nothing herein contained shall prevent the
proceeds of the sale of the property attached party against whom the attachment was issued
not applied to the judgment. (16a) from recovering in the same action the
damages awarded to him from any property of
Section 17. Recovery upon the counter-bond. the attaching party not exempt from execution
When the judgment has become executory, should the bond or deposit given by the latter
the surety or sureties on any counter-bond be insufficient or fail to fully satisfy the
given pursuant to the provisions of this Rule award. (20a)
to secure the payment of the judgment shall
become charged on such counter-bond and
bound to pay the judgment obligee upon
demand the amount due under the judgment, RULE 58
which amount may be recovered from such
surety or sureties after notice and summary
hearing in the same action. (17a) Preliminary Injunction
11
known as a preliminary mandatory injunction. of the requisite bond, a writ of
(1a) preliminary injunction shall be
issued. (4a)
Section 2. Who may grant preliminary
injunction. A preliminary injunction may (c) When an application for a writ
be granted by the court where the action or of preliminary injunction or a
proceeding is pending. If the action or temporary restraining order is
proceeding is pending in the Court of Appeals included in a complaint or any
or in the Supreme Court, it may be issued by initiatory pleading, the case, if filed
said court or any member thereof. (2a) in a multiple-sala court, shall be
raffled only after notice to and in
Section 3. Grounds for issuance of the presence of the adverse party or
preliminary injunction. A preliminary the person to be enjoined. In any
injunction may be granted when it is event, such notice shall be preceded,
established: or contemporaneously
accompanied, by service of
summons, together with a copy of
(a) That the applicant is entitled to the complaint or initiatory pleading
the relief demanded, and the whole and the applicant's affidavit and
or part of such relief consists in bond, upon the adverse party in the
restraining the commission or Philippines.
continuance of the act or acts
complained of, or in requiring the
performance of an act or acts either However, where the summons could
for a limited period or perpetually; not be served personally or by
substituted service despite diligent
efforts, or the adverse party is a
(b) That the commission, resident of the Philippines
continuance or non-performance of temporarily absent therefrom or is a
the act or acts complained of during nonresident thereof, the requirement
the litigation would probably work of prior or contemporaneous service
injustice to the applicant; or of summons shall not apply.
(c) That a party, court, agency or a (d) The application for a temporary
person is doing, threatening, or is restraining order shall thereafter be
attempting to do, or is procuring or acted upon only after all parties are
suffering to be done some act or heard in a summary hearing which
acts probably in violation of the shall be conducted within twenty-
rights of the applicant respecting the four (24) hours after the sheriff's
subject of the action or proceeding, return of service and/or the records
and tending to render the judgment are received by the branch selected
ineffectual. (3a) by raffle and to which the records
shall be transmitted immediately.
Section 4. Verified application and bond for
preliminary injunction or temporary Section 5. Preliminary injunction not granted
restraining order. A preliminary injunction without notice; exception. No preliminary
or temporary restraining order may be granted injunction shall be granted without hearing
only when: and prior notice to the party or person sought
to be enjoined. If it shall appear from facts
(a) The application in the action or shown by affidavits or by the verified
proceeding is verified, and shows application that great or irreparable injury
facts entitling the applicant to the would result to the applicant before the matter
relief demanded; and can be heard on notice, the court to which the
application for preliminary injunction was
(b) Unless exempted by the court made, may issue a temporary restraining order
the applicant files with the court to be effective only for a period of twenty (20)
where the action or proceeding is days from service on the party or person
pending, a bond executed to the sought to be enjoined, except as herein
party or person enjoined, in an provided. Within the said twenty-day period,
amount to be fixed by the court, to the court must order said party or person to
the effect that the applicant will pay show cause, at a specified time and place,
to such party or person all damages why the injunction should not be granted,
which he may sustain by reason of determine within the same period whether or
the injunction or temporary not the preliminary injunction shall be
restraining order if the court should granted, and accordingly issue the
finally decide that the applicant was
not entitled thereto. Upon approval
12
corresponding order. (Bar Matter No. 803, 17 suffer by the denial or the dissolution of the
February 1998) injunction or restraining order. If it appears
that the extent of the preliminary injunction or
However, and subject to the provisions of the restraining order granted is too great, it may
preceding sections, if the matter is of extreme be modified. (6a)
urgency and the applicant will suffer grave
injustice and irreparable injury, the executive Section 7. Service of copies of bonds; effect of
judge of a multiple-sala court or the presiding disapproval of same. The party filing a
judge of a single sala court may issue ex bond in accordance with the provisions of this
parte a temporary restraining order effective Rule shall forthwith serve a copy of such
for only seventy-two (72) hours from issuance bond on the other party, who may except to
but he shall immediately comply with the the sufficiency of the bond, or of the surety or
provisions of the next preceding section as to sureties thereon. If the applicant's bond is
service of summons and the documents to be found to be insufficient in amount, or if the
served therewith. Thereafter, within the surety or sureties thereon fail to justify, and a
aforesaid seventy-two (72) hours, the judge bond sufficient in amount with sufficient
before whom the case is pending shall sureties approved after justification is not
conduct a summary hearing to determine filed forthwith the injunction shall be
whether the temporary restraining order shall dissolved. If the bond of the adverse party is
be extended until the application for found to be insufficient in amount, or the
preliminary injunction can be heard. In no surety or sureties thereon fail to justify a bond
case shall the total period of effectivity of the sufficient in amount with sufficient sureties
temporary restraining order exceed twenty approved after justification is not filed
(20) days, including the original seventy-two forthwith, the injunction shall be granted or
hours provided herein. restored, as the case may be. (8a)
In the event that the application for Section 8. Judgment to include damages
preliminary injunction is denied or not against party and sureties. At the trial, the
resolved within the said period, the temporary amount of damages to be awarded to either
restraining order is deemed, automatically party, upon the bond of the adverse party,
vacated. The effectivity of a temporary shall be claimed, ascertained, and awarded
restraining order is not extendible without under the same procedure prescribed in
need of any judicial declaration to that effect section 20 of Rule 57. (9a)
and no court shall have authority to extend or
renew the same on the same ground for which Section 9. When final injunction granted.
it was issued. If after the trial of the action it appears that
the applicant is entitled to have the act or acts
However, if issued by the Court of Appeals or complained of permanently enjoined the court
a member thereof, the temporary restraining shall grant a final injunction perpetually
order shall be effective for sixty (60) days restraining the party or person enjoined from
from service on the party or person sought to the commission or continuance of the act or
be enjoined. A restraining, order issued by the acts of confirming the preliminary mandatory
Supreme Court or a member thereof shall be injunction. (10a)
effective until further orders. (5a)
-Rule 57 and 58 ROC
Section 6. Grounds for objection to, or for
motion of dissolution of, injunction or B. Civil Aspect
restraining order. The application for
injunction or restraining order may be denied,
upon a showing of its insufficiency. The Generally
injunction or restraining order may also be Section 1. Institution of criminal and civil
denied, or, if granted, may be dissolved, on actions. (a) When a criminal action is instituted,
other grounds upon affidavits of the party or the civil action for the recovery of civil liability
person enjoined, which may be opposed by arising from the offense charged shall be deemed
the applicant also by affidavits. It may further instituted with the criminal action unless the
be denied, or if granted, may be dissolved, if offended party waives the civil action, reserves the
it appears after hearing that although the right to institute it separately or institutes the civil
applicant is entitled to the injunction or action prior to the criminal action.
restraining order, the issuance or continuance
thereof, as the case may be, would cause The reservation of the right to institute separately
irreparable damage to the party or person the civil action shall be made before the
enjoined while the applicant can be fully prosecution starts presenting its evidence and
compensated for such damages as he may under circumstances affording the offended party a
suffer, and the former files a bond in an reasonable opportunity to make such reservation.
amount fixed by the court conditioned that he
will pay all damages which the applicant may
13
When the offended party seeks to enforce civil the separate civil action arising therefrom cannot be
liability against the accused by way of moral, instituted until final judgment has been entered in
nominal, temperate, or exemplary damages without the criminal action.
specifying the amount thereof in the complaint or
information, the filing fees thereof shall constitute If the criminal action is filed after the said civil
a first lien on the judgment awarding such action has already been instituted, the latter shall be
damages. suspended in whatever stage it may be found
before judgment on the merits. The suspension
Where the amount of damages, other than actual, is shall last until final judgment is rendered in the
specified in the complaint or information, the criminal action. Nevertheless, before judgment on
corresponding filing fees shall be paid by the the merits is rendered in the civil action, the same
offended party upon the filing thereof in court. may, upon motion of the offended party, be
consolidated with the criminal action in the court
Except as otherwise provided in these Rules, no trying the criminal action. In case of consolidation,
filing fees shall be required for actual damages. the evidence already adduced in the civil action
shall be deemed automatically reproduced in the
criminal action without prejudice to the right of the
No counterclaim, cross-claim or third-party prosecution to cross-examine the witnesses
complaint may be filed by the accused in the presented by the offended party in the criminal case
criminal case, but any cause of action which could and of the parties to present additional evidence.
have been the subject thereof may be litigated in a The consolidated criminal and civil actions shall be
separate civil action. (1a) tried and decided jointly.
(b) The criminal action for violation of Batas During the pendency of the criminal action, the
Pambansa Blg. 22 shall be deemed to include the running of the period of prescription of the civil
corresponding civil action. No reservation to file action which cannot be instituted separately or
such civil action separately shall be allowed. whose proceeding has been suspended shall be
tolled. (n)
Upon filing of the aforesaid joint criminal and civil
actions, the offended party shall pay in full the The extinction of the penal action does not carry
filing fees based on the amount of the check with it extinction of the civil action. However, the
involved, which shall be considered as the actual civil action based on delict shall be deemed
damages claimed. Where the complaint or extinguished if there is a finding in a final
information also seeks to recover liquidated, moral, judgment in the criminal action that the act or
nominal, temperate or exemplary damages, the omission from which the civil liability may arise
offended party shall pay additional filing fees did not exist. (2a)
based on the amounts alleged therein. If the
amounts are not so alleged but any of these
damages are subsequently awarded by the court, -Rule 111, Sec. 2
the filing fees based on the amount awarded shall
constitute a first lien on the judgment. Cf. Suspension by reason of prejudicial question
Where the civil action has been filed separately Section 6. Suspension by reason of prejudicial
and trial thereof has not yet commenced, it may be question. A petition for suspension of the
consolidated with the criminal action upon criminal action based upon the pendency of a
application with the court trying the latter case. If prejudicial question in a civil action may be filed in
the application is granted, the trial of both actions the office of the prosecutor or the court conducting
shall proceed in accordance with section 2 of this the preliminary investigation. When the criminal
Rule governing consolidation of the civil and action has been filed in court for trial, the petition
criminal actions. (cir. 57-97) to suspend shall be filed in the same criminal
action at any time before the prosecution rests. (6a)
-Rule 111, Sec. 1 ROC Section 7. Elements of prejudicial question. The
elements of a prejudicial question are: (a) the
Section 12. Prosecution of Civil Action. When a previously instituted civil action involves an issue
criminal action is instituted against a juvenile in similar or intimately related to the issue raised in
conflict with the law, the action for recovery of the subsequent criminal action, and (b) the
civil liability arising from the offense charged shall resolution of such issue determines whether or not
be governed by Rule 111 of the Revised Rules of the criminal action may proceed. (5a)
Criminal Procedure.
-Rule 111, Secs. 6 and 7 ROC
-Sec. 12 RJCL
Independent Civil Actions
Suspension of Separate Civil Action Section 3. When civil action may proceeded
independently. In the cases provided for in
Section 2. When separate civil action is suspended.
Articles 32, 33, 34 and 2176 of the Civil Code of
After the criminal action has been commenced,
the Philippines, the independent civil action may be
14
brought by the offended party. It shall proceed the Philippines, signed by a judge and directed to a
independently of the criminal action and shall peace officer, commanding him to search for personal
require only a preponderance of evidence. In no property described therein and bring it before the court.
case, however, may the offended party recover (1)
damages twice for the same act or omission
charged in the criminal action. (3a) Section 13. Search incident to lawful arrest. A
person lawfully arrested may be searched for dangerous
-Rule 111, Sec. 3 ROC weapons or anything which may have been used or
constitute proof in the commission of an offense without
Effect of death on civil actions a search warrant. (12a)
Section 4. Effect of death on civil actions. The
death of the accused after arraignment and during -Rule 126, Sec. 1 and 13ROC
the pendency of the criminal action shall extinguish
the civil liability arising from the delict. However,
the independent civil action instituted under section
b. Constitutional and Statutory Boundaries;
3 of this Rule or which thereafter is instituted to limitations on State action
enforce liability arising from other sources of
obligation may be continued against the estate or 1. Nature of right protected; waiver of protected
legal representative of the accused after proper right
substitution or against said estate, as the case may SECTION 2. The right of the people to be secure in
be. The heirs of the accused may be substituted for their persons, houses, papers, and effects against
the deceased without requiring the appointment of unreasonable searches and seizures of whatever
an executor or administrator and the court may nature and for any purpose shall be inviolable, and
appoint a guardian ad litem for the minor heirs. no search warrant or warrant of arrest shall issue
except upon probable cause to be determined
The court shall forthwith order said legal personally by the judge after examination under
representative or representatives to appear and be oath or affirmation of the complainant and the
substituted within a period of thirty (30) days from witnesses he may produce, and particularly
notice. describing the place to be searched and the persons
or things to be seized.
A final judgment entered in favor of the offended -Art. III, Sec. 2 Constitution
party shall be enforced in the manner especially
provided in these rules for prosecuting claims
Section 13. Search incident to lawful arrest. A
against the estate of the deceased.
person lawfully arrested may be searched for
dangerous weapons or anything which may have
If the accused dies before arraignment, the case been used or constitute proof in the commission of
shall be dismissed without prejudice to any civil an offense without a search warrant. (12a)
action the offended party may file against the estate
of the deceased. (n)
-Rule 126, Sec. 13 ROC
-Rule 111, Sec. 4 ROC
2. Scope of Protection
SECTION 3. (1) The privacy of communication
Effect of judgment in civil action on criminal and correspondence shall be inviolable except upon
action lawful order of the court, or when public safety or
Section 5. Judgment in civil action not a bar. A order requires otherwise as prescribed by law.
final judgment rendered in a civil action absolving
the defendant from civil liability is not a bar to a -Art. III, Sec. 3(1) Constitution
criminal action against the defendant for the same
act or omission subject of the civil action. (4a)
c. Types
-Rule 111, Sec. 5 ROC 1. Through search warrant
See also: Arts. 100-113 (RPC)
Generally
Arts. 29, 32, 33, 34, 2176 (NCC)
Section 1. Search warrant defined. A search
warrant is an order in writing issued in the name of
the People of the Philippines, signed by a judge and
directed to a peace officer, commanding him to
PART TWO SEARCH AND SEIZURE search for personal property described therein and
bring it before the court. (1)
Nature, Scope and Definition
-Rule 126, Sec. 1 ROC
a. Definition
Section 1. Search warrant defined. A search warrant Requisites of a valid search warrant
is an order in writing issued in the name of the People of
15
a. There is probable cause Force (REACT-TF) with the Regional Trial Courts
b. Examination under oath or affirmation of the
complainant and the witnesses he may of Manila and Quezon City.
produce
c. Particular description of the place to be The applications shall be personally endorsed by the
searched
Heads of the said agencies, for the search of places
d. Particular description of the persons or
things to be seized to be particularly described therein, and the seizure
of property or things as prescribed in the Rules of
Venue of application/ Jurisdiction of court
Court, and to issue the warrants, if justified, which
Section 2. Court where application for search
warrant shall be filed.* An application for may be served in places outside the territorial
search warrant shall be filed with the following: jurisdiction of said courts.
16
4. The warrant must specially describe the place which reasonably interfere with a persons
to be searched and the things to be seized right to privacy.
which may be anywhere in the Philippines.
iv. Description of place to be searched
i. Concept of probable cause in search
warrants It must make reasonably clear what place is
to be searched. According to Atty. Canlas, it
Probable cause for search warrant means is described with particularity to limit the
such facts and circumstances which would discretion of officers.
lead a reasonably discreet and prudent man
to believe that an offense has been The long standing rule is that a description
committed and that the objects sought in of the place to be searched is sufficient if the
connection with the offense are in the place officer with the warrant can, with reasonable
to be searched. effort, ascertain and identify the place
intended and distinguish it from other places
ii. Determining probable cause in the community.
a. Person responsible
SECTION 2. The right of the people to be Property to be seized
secure in their persons, houses, papers, and Section 3. Personal property to be seized. A
effects against unreasonable searches and search warrant may be issued for the search and
seizures of whatever nature and for any seizure of personal property:
purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except
(a) Subject of the offense;
upon probable cause to be determined
personally by the judge after examination
under oath or affirmation of the complainant (b) Stolen or embezzled and other
and the witnesses he may produce, and proceeds, or fruits of the offense; or
particularly describing the place to be
searched and the persons or things to be (c) Used or intended to be used as the
seized. means of committing an offense. (2a)
17
not later than the start of the trial of the case.
Search incident to lawful arrest (n)
Section 13. Search incident to lawful arrest. A
person lawfully arrested may be searched for -Rule 114, Sec. 26 ROC
dangerous weapons or anything which may have
been used or constitute proof in the commission of
Stop and frisk, automobile roadblocks, and
an offense without a search warrant. (12a)
other less intrusive searches
-Rule 126, Sec. 13 ROC Also called Terry Searches based on the Terry
v. Ohio Case.
Consented Search
This is usually based on the experience and
It must be voluntary, unequivocal, specific and training of the person (police officer) doing the
intelligently given, uncontaminated by any warrantless arrest.
duress or coercion. Consent to a search must be
shown by clear and convincing evidence. Moving vehicles/ Hot pursuit
To constitute waiver, it must first appear that: Highly regulated by the government, the
-the right exists vehicles inherent mobility reduces the
-the person involved had knowledge expectation of privacy especially when its transit
-the said person had an actual intention to in public thoroughfares furnishes a highly
relinquish the right reasonable suspicion amounting to probable
cause that the occupant committed a criminal
i. Peaceful submission and consent to search activity.
Peaceful submission to a search or seizure is In Plain sight
not consent or an invitation thereto, but is
merely a demonstration of regard for the Under this doctrine, the officer is permitted,
supremacy of the law. while lawfully engaged in an activity and
lawfully present in a particular place, to seize an
ii. Effect of voluntary surrender apparent illicit object without first obtaining a
iii. Effect of posting bail warrant authorizing him to do so.
Section 14. Motion to quash a search warrant
or to suppress evidence; where to file. A
motion to quash a search warrant and/or to
Requisites:
suppress evidence obtained thereby may be a. The law enforcement officer in search of
filed in and acted upon only by the court the evidence has a prior justification for
where the action has been instituted. If no an intrusion or is in a position from which
criminal action has been instituted, the motion he can view a particular area;
may be filed in and resolved by the court that b. The discovery of the evidence in plain
issued the search warrant. However, if such view is inadvertent;
court failed to resolve the motion and a c. It is immediately apparent to the officer
criminal case is subsequent filed in another
that the item he observes may be evidence
court, the motion shall be resolved by the
latter court. (n)
of a crime, contraband or otherwise
subject to seizure.
-Rule 126, Sec. 14 ROC
Private Searches
Cf:
Extraordinary circumstances
Section 26. Bail not a bar to objections on
illegal arrest, lack of or irregular preliminary Well-recognized instances where searches and
investigation. An application for or seizures are allowed even without a valid warrant:
admission to bail shall not bar the accused
from challenging the validity of his arrest or 1. Warrantless search incidental to arrest
the legality of the warrant issued therefor, or 2. Seizure of evidence in plain view
from assailing the regularity or questioning 3. Search of a moving vehicle
the absence of a preliminary investigation of 4. Consented warrantless search
the charge against him, provided that he raises
5. Customs search
them before entering his plea. The court shall
resolve the matter as early as practicable but 6. Stop and Frisk or Terry searches
7. Exigent and emergency circumstances
8. Search of vessels and aircraft
18
9. Inspection of buildings and other (a) The officer must forthwith deliver the
premises for the enforcement of fire, property seized to the judge who issued the
sanitary and building regulations. warrant, together with a true inventory thereof duly
verified under oath.
-Criminal Procedure by Riano (pp. 261-262)
(b) Ten (10) days after issuance of the search
warrant, the issuing judge shall ascertain if the
Procedure for service of warrant; post-service procedure
return has been made, and if none, shall summon
the person to whom the warrant was issued and
e. Service of warrant require him to explain why no return was made.
If the return has been made, the judge shall
1. Time of search ascertain whether section 11 of this Rule has
Section 9. Time of making search. The warrant been complained with and shall require that the
must direct that it be served in the day time, unless property seized be delivered to him. The judge
the affidavit asserts that the property is on the shall see to it that subsection (a) hereof has been
person or in the place ordered to be searched, in complied with.
which case a direction may be inserted that it be
served at any time of the day or night. (8) (c) The return on the search warrant shall be
filed and kept by the custodian of the log book
-Rule 126, Sec. 9 ROC on search warrants who shall enter therein the
date of the return, the result, and other actions of
2. Two-witness rule the judge.
Section 8. Search of house, room, or premise to be
made in presence of two witnesses. No search of A violation of this section shall constitute contempt
a house, room, or any other premise shall be made of court.(11a)
except in the presence of the lawful occupant
thereof or any member of his family or in the
-Rule 126, Sec. 12 ROC
absence of the latter, two witnesses of sufficient
age and discretion residing in the same locality.
(7a) Remedies against unreasonable search and seizure
2. Delivery of property and inventory; return and (d) Waiver of objections to admissibility of
proceedings on the return evidence; and
Section 12. Delivery of property and inventory
thereof to court; return and proceedings thereon.
19
(e) Such other matters as will promote a fair just cause, or, having legally procured the same, shall
and expeditious trial. exceed his authority or use unnecessary severity in
executing the same.
-RA 8493, Sec. 2(d)
Article 130. Searching domicile without witnesses. -
Section 1. Pre-trial; mandatory in criminal cases. In The penalty of arresto mayor in its medium and
all criminal cases cognizable by the Sandiganbayan, maximum periods shall be imposed upon a public
Regional Trial Court, Metropolitan Trial Court, officer or employee who, in cases where a search is
Municipal Trial Court in Cities, Municipal Trial Court proper, shall search the domicile, papers or other
and Municipal Circuit Trial Court, the court shall after belongings of any person, in the absence of the latter,
arraignment and within thirty (30) days from the date any member of his family, or in their default, without
the court acquires jurisdiction over the person of the the presence of two witnesses residing in the same
accused, unless a shorter period is provided for in locality.
special laws or circulars of the Supreme Court, order a
pre-trial conference to consider the following: Article 206. Unjust interlocutory order. - Any judge
who shall knowingly render an unjust interlocutory
(a) plea bargaining; order or decree shall suffer the penalty of arresto
mayor in its minimum period and suspension; but if he
shall have acted by reason of inexcusable negligence or
(b) stipulation of facts;
ignorance and the interlocutory order or decree be
manifestly unjust, the penalty shall be suspension.
(c) marking for identification of evidence of
the parties; -Arts. 128, 129, 130 and 206 RPC
(d) waiver of objections to admissibility of The aggrieved have the right to seek damages, if the
evidence; circumstances warranted, by separate civil action for
the wrong inflicted on them by an improperly
(e) modification of the order of trial if the obtained or enforced search warrants.
accused admits the charge but interposes a
lawful defense; and
PART THREE ARREST
(f) such other matters as will promote a fair
and expeditious trial of the criminal and civil -the taking of the person into custody in order that he
aspects of the case. (secs. 2 and 3, cir. 38-98) may be bound to answer for the commission of an
offense.
-Rule 118, Sec. 1(d) ROC
Nature and Definition
b. Return of property illegally seized
(See digests of cases) a. Definition
Section 1. Definition of arrest. Arrest is the taking of
c. Criminal Liability and Civil Damages a person into custody in order that he may be bound to
Article 128. Violation of domicile. - The penalty of answer for the commission of an offense. (1)
prision correccional in its minimum period shall be
imposed upon any public officer or employee who, not
Section 2. Arrest; how made. An arrest is made by an
being authorized by judicial order, shall enter any
actual restraint of a person to be arrested, or by his
dwelling against the will of the owner thereof, search
submission to the custody of the person making the
papers or other effects found therein without the
arrest.
previous consent of such owner, or having
surreptitiously entered said dwelling, and being required
to leave the premises, shall refuse to do so. No violence or unnecessary force shall be used in
making an arrest. The person arrested shall not be
subject to a greater restraint than is necessary for his
If the offense be committed in the night-time, or if any
detention. (2a)
papers or effects not constituting evidence of a crime be
not returned immediately after the search made by the
offender, the penalty shall be prision correccional in its -Rule 113, Secs. 1 and 2 ROC
medium and maximum periods.
Cf: Diplomatic and parliamentary immunities
Article 129. Search warrants maliciously obtained and from arrest
abuse in the service of those legally obtained. - In
addition to the liability attaching to the offender for the SECTION 11. A Senator or Member of the House of
commission of any other offense, the penalty of arresto Representatives shall, in all offenses punishable by not
mayor in its maximum period to prision correccional in more than six years imprisonment, be privileged from
its minimum period and a fine not exceeding P1,000 arrest while the Congress is in session. No Member shall
pesos shall be imposed upon any public officer or be questioned nor be held liable in any other place for
employee who shall procure a search warrant without
20
any speech or debate in the Congress or in any receiving State, enjoy the privileges and immunities
committee thereof. specified in Articles 29 to 35, except that the immunity
from civil and administrative jurisdiction of the
-Art. VI, Sec. 11 Constitution receiving State specified in paragraph 1 of Article 31
shall not extend to acts performed outside the course of
Article 145. Violation of parliamentary immunity. - The their duties. They shall also enjoy the privileges
penalty of prision mayor shall be imposed upon any specified in Article 36, paragraph 1, in respect of articles
person who shall use force, intimidation, threats, or imported at the time of first installation.
fraud to prevent any member of the National Assembly
(Congress of the Philippines) from attending the 3. Members of the service staff of the mission who are
meetings of the Assembly (Congress) or of any of its not nationals of or permanently resident in the receiving
committees or subcommittees, constitutional State shall enjoy immunity in respect of acts performed
commissions or committees or divisions thereof, from in the course of their duties, exemption from dues and
expressing his opinions or casting his vote; and the taxes on the emoluments they receive by reason of their
penalty of prision correccional shall be imposed upon employment and the exemption contained in Article 33.
any public officer or employee who shall, while the
Assembly (Congress) is in regular or special session, 4. Private servants of members of the mission shall, if
arrest or search any member thereof, except in case such they are not nationals of or permanently resident in the
member has committed a crime punishable under this receiving State, be exempt from dues and taxes on the
Code by a penalty higher than prision mayor. emoluments they receive by reason of their
employment. In other respects, they may enjoy
-Art. 145 RPC privileges and immunities only to the extent admitted by
the receiving State. However, the receiving State must
Article 31 exercise its jurisdiction over those persons in such a
1. A diplomatic agent shall enjoy immunity from the manner as not to interfere unduly with the performance
criminal jurisdiction of the receiving State. He shall also of the functions of the mission.
enjoy immunity from its civil and administrative
jurisdiction, except in the case of: -Arts. 31 and 37 Vienna Convention on Diplomatic
Relations
(a) a real action relating to private immovable property
situated in the territory of the receiving State, unless he Article VII
holds it on behalf of the sending State for the purposes
of the mission; Importation and Exportation
(b) an action relating to succession in which the 1. United States Government equipment, materials,
diplomatic agent is involved as executor, administrator, supplies, and other property imported into or acquired in
heir or legatee as a private person and not on behalf of the Philippines by or on behalf of the United States
the sending State; armed forces in connection with activities to which this
agreement applies, shall be free of all Philippine duties,
(c) an action relating to any professional or commercial taxes and other similar charges. Title to such property
activity exercised by the diplomatic agent in the shall remain with the United States, which may remove
receiving State outside his official functions. such property from the Philippines at any time, free
from export duties, taxes, and other similar charges. The
2. A diplomatic agent is not obliged to give evidence as exemptions provided in this paragraph shall also extend
a witness. to any duty, tax, or other similar charges which would
otherwise be assessed upon such property after
3. No measures of execution may be taken in respect of importation into, or acquisition within, the Philippines.
a diplomatic agent except in the cases coming under Such property may be removed from the Philippines, or
sub-paragraphs (a), (b) and (c) of paragraph 1 of this disposed of therein, provided that disposition of such
Article, and provided that the measures concerned can property in the Philippines to persons or entities not
be taken without infringing the inviolability of his entitled to exemption from applicable taxes and duties
person or of his residence. shall be subject to payment of such taxes, and duties and
prior approval of the Philippine Government.
4. The immunity of a diplomatic agent from the
jurisdiction of the receiving State does not exempt him 2. Reasonable quantities of personal baggage, personal
from the jurisdiction of the sending State. effects, and other property for the personal use of United
States personnel may be imported into and used in the
Article 37 Philippines free of all duties, taxes and other similar
1. The members of the family of a diplomatic agent charges during the period of their temporary stay in the
forming part of his household shall, if they are not Philippines. Transfers to persons or entities in the
nationals of the receiving State, enjoy the privileges and Philippines not entitled to import privileges may only be
immunities specified in Articles 29 to 36. made upon prior approval of the appropriate Philippine
authorities including payment by the recipient of
2. Members of the administrative and technical staff of applicable duties and taxes imposed in accordance with
the mission, together with members of their families the laws of the Philippines. The exportation of such
forming part of their respective households, shall, if they property and of property acquired in the Philippines by
are not nationals of or permanently resident in the
21
United States personnel shall be free of all Philippine Section 4. Execution of warrant. The head of
duties, taxes, and other similar charges. the office to whom the warrant of arrest was
delivered for execution shall cause the warrant to
-Art. 7 Visiting Forces Agreement be executed within ten (10) days from its receipt.
Within ten (10) days after the expiration of the
b. Types period, the officer to whom it was assigned for
execution shall make a report to the judge who
issued the warrant. In case of his failure to execute
1. With warrant of arrest
the warrant, he shall state the reasons therefor. (4a)
22
(a) When, in his presence, the person to 2. He must be warned that he has a right to remain
be arrested has committed, is actually silent and that anystatement he makes may be
committing, or is attempting to commit used as evidence against him;
an offense; 3. He must be informed that he has the right to be
assisted at all times and have the presence of an
(b) When an offense has just been independent and competent lawyer, preferably
committed, and he has probable cause to of his own choice;
believe based on personal knowledge of 4. He must be informed that if he has no lawyer
facts or circumstances that the person to or cannot afford the services of a lawyer, one
be arrested has committed it; and will be provided for him; and that a lawyer may
also be engaged by any person in his behalf, or
may be appointed by the court upon petition of
(c) When the person to be arrested is a the person arrested or one acting in his behalf;
prisoner who has escaped from a penal 5. That whether or not the person arrested has a
establishment or place where he is lawyer, he must be informed that no custodial
serving final judgment or is temporarily investigation in any form shall be conducted
confined while his case is pending, or has except in the presence of his counsel or after a
escaped while being transferred from one valid waiver has been made;
confinement to another. 6. The person arrested must be informed that, at
any time, he has the right to communicate or
In cases falling under paragraph (a) and (b) above, confer by the most expedient means -
the person arrested without a warrant shall be telephone, radio, letter or messenger - with his
forthwith delivered to the nearest police station or lawyer (either retained or appointed), any
jail and shall be proceeded against in accordance member of his immediate family, or any
with section 7 of Rule 112. (5a) medical doctor, priest or minister chosen by
him or by any one from his immediate family
or by his counsel, or be visited by/confer with
-Rule 113, Sec. 5 ROC
duly accredited national or international non-
government organization. It shall be the
From the above provision, it can be summarized responsibility of the officer to ensure that this
as follows: is accomplished;
1. In flagrante delicto 7. He must be informed that he has the right to
2. Hot pursuit waive any of said rights provided it is made
3. Escapee voluntarily, knowingly and intelligently and
ensure that he understood the same;
According to people v. Tudtud, in instances 8. In addition, if the person arrested waives his
right to a lawyer, he must be informed that it
where the arrest is only made based on a reliable must be done in writing AND in the presence
source, the following must be present: of counsel, otherwise, he must be warned that
1. Reliable Tip the waiver is void even if he insist on his waiver
2. Overt Act and chooses to speak;
9. That the person arrested must be informed that
Method of arrest by officer he may indicate in any manner at any time or
Section 8. Method of arrest by officer without stage of the process that he does not wish to be
warrant. When making an arrest without a questioned with warning that once he makes
warrant, the officer shall inform the person to be such indication, the police may not interrogate
arrested of his authority and the cause of the arrest, him if the same had not yet commenced, or the
unless the latter is either engaged in the interrogation must ceased if it has already
commission of an offense, is pursued immediately begun;
after its commission, has escaped, flees or forcibly 10. The person arrested must be informed that his
resists before the officer has opportunity so to initial waiver of his right to remain silent, the
inform him, or when the giving of such right to counsel or any of his rights does not bar
information will imperil the arrest. (8a) him from invoking it at any time during the
process, regardless of whether he may have
answered some questions or volunteered some
-Rule 113, Sec. 8 ROC statements;
11. He must also be informed that any statement or
Cf: Guidelines laid out in People v. Mahinay evidence, as the case may be, obtained in
1. The person arrested, detained, invited or under violation of any of the foregoing, whether
custodial investigation must be informed in a inculpatory or exculpatory, in whole or in part,
language known to and understood by him of shall be inadmissible in evidence.
the reason for the arrest and he must be shown
the warrant of arrest, if any; Every other -People v. Mahinay 302 SCRA 455
warnings, information or communication must
be in a language known to and understood by
said person;
Method of arrest by private person
23
Section 9. Method of arrest by private person. absolutely necessary and only after all
When making an arrest, a private person shall other methods of control have been
inform the person to be arrested of the intention to exhausted and have failed;
arrest him and cause of the arrest, unless the latter
is either engaged in the commission of an offense, (e) Refrain from subjecting the juvenile
is pursued immediately after its commission, or has to greater restraint than is necessary for
escaped, flees, or forcibly resists before the person his apprehension;
making the arrest has opportunity to so inform him,
or when the giving of such information will imperil
the arrest. (9a) (f) Avoid violence or unnecessary force;
-Rule 113, Sec. 9 ROC (g) Notify the parents of the juvenile or
his nearest relative or guardian, if any,
and the local social welfare officer as
Post-arrest procedure soon as the apprehension is made;
Section 7. When accused lawfully arrested without
warrant. When a person is lawfully arrested
(h) Take the juvenile immediately to an
without a warrant involving an offense which
available government medical or health
requires a preliminary investigation, the complaint
officer for a physical and mental
or information may be filed by a prosecutor
examination. The examination results
without need of such investigation provided an
shall be kept confidential unless
inquest has been conducted in accordance with
otherwise ordered by the Family Court.
existing rules. In the absence or unavailability of an
Whenever treatment for any physical or
inquest prosecutor, the complaint may be filed by
mental defect is necessary, steps shall be
the offended party or a peace office directly with
immediately taken by the said officer to
the proper court on the basis of the affidavit of the
offended party or arresting officer or person. provide the juvenile with the necessary
and proper treatment; and
Special Rule for Juveniles in Conflict with Law 3. John Doe warrants
Section 6. Procedure in Taking a Juvenile into Insofar as the warrant is issued against 50 "John
Custody. Any person taking into custody a Does" not one of whom the witnesses to the
juvenile in conflict with the law shall: complaint could or would identify, it is of the
nature of a general warrant, one of a class of writs
long proscribed as unconstitutional and once
(a) Identify himself and present proper
anathematized as "totally subversive of the liberty
identification to the juvenile;
of the subject."
(b) Inform the juvenile of the reason for -DOJ Circular No. 50, Oct. 29, 1990
such custody and advise him of his -Pangandaman v. Casar
constitutional rights in a language or
dialect understood by him; Republic of the Philippines
Congress of the Philippines
(c) Refrain from using vulgar or profane Metro Manila
words and from sexually harassing or
abusing, or making sexual advances on Eighth Congress
the juvenile;
24
presence of any of the parents, elder
Republic Act No. 7438 April 27, 1992 brothers and sisters, his spouse, the
municipal mayor, the municipal judge,
district school supervisor, or priest or
AN ACT DEFINING CERTAIN RIGHTS OF minister of the gospel as chosen by him;
PERSON ARRESTED, DETAINED OR otherwise, such extrajudicial confession
UNDER CUSTODIAL INVESTIGATION AS shall be inadmissible as evidence in any
WELL AS THE DUTIES OF THE proceeding.
ARRESTING, DETAINING AND
INVESTIGATING OFFICERS, AND
PROVIDING PENALTIES FOR (e) Any waiver by a person arrested or
VIOLATIONS THEREOF detained under the provisions of Article
125 of the Revised Penal Code, or under
custodial investigation, shall be in
Be it enacted by the Senate and House of writing and signed by such person in the
Representatives of the Philippines in Congress presence of his counsel; otherwise the
assembled:: waiver shall be null and void and of no
effect.
Section 1. Statement of Policy. It is the policy of
the Senate to value the dignity of every human (f) Any person arrested or detained or
being and guarantee full respect for human rights. under custodial investigation shall be
allowed visits by or conferences with any
Section 2. Rights of Persons Arrested, Detained member of his immediate family, or any
or Under Custodial Investigation; Duties of medical doctor or priest or religious
Public Officers. minister chosen by him or by any
member of his immediate family or by
(a) Any person arrested detained or under his counsel, or by any national non-
custodial investigation shall at all times governmental organization duly
be assisted by counsel. accredited by the Commission on Human
Rights of by any international non-
governmental organization duly
(b) Any public officer or employee, or accredited by the Office of the President.
anyone acting under his order or his The person's "immediate family" shall
place, who arrests, detains or investigates include his or her spouse, fianc or
any person for the commission of an fiance, parent or child, brother or sister,
offense shall inform the latter, in a grandparent or grandchild, uncle or aunt,
language known to and understood by nephew or niece, and guardian or ward.
him, of his rights to remain silent and to
have competent and independent counsel,
preferably of his own choice, who shall As used in this Act, "custodial investigation" shall
at all times be allowed to confer privately include the practice of issuing an "invitation" to a
with the person arrested, detained or person who is investigated in connection with an
under custodial investigation. If such offense he is suspected to have committed, without
person cannot afford the services of his prejudice to the liability of the "inviting" officer for
own counsel, he must be provided with a any violation of law.
competent and independent counsel by
the investigating officer.lawphi1 Section 3. Assisting Counsel. Assisting counsel
is any lawyer, except those directly affected by the
(c) The custodial investigation report case, those charged with conducting preliminary
shall be reduced to writing by the investigation or those charged with the prosecution
investigating officer, provided that before of crimes.
such report is signed, or thumbmarked if
the person arrested or detained does not The assisting counsel other than the government
know how to read and write, it shall be lawyers shall be entitled to the following fees;
read and adequately explained to him by
his counsel or by the assisting counsel (a) The amount of One hundred fifty
provided by the investigating officer in pesos (P150.00) if the suspected person
the language or dialect known to such is chargeable with light
arrested or detained person, otherwise, felonies;lawphi1alf
such investigation report shall be null and
void and of no effect whatsoever.
(b) The amount of Two hundred fifty
pesos (P250.00) if the suspected person
(d) Any extrajudicial confession made by is chargeable with less grave or grave
a person arrested, detained or under felonies;
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
25
(c) The amount of Three hundred fifty The provisions of the above Section
pesos (P350.00) if the suspected person notwithstanding, any security officer with custodial
is chargeable with a capital offense. responsibility over any detainee or prisoner may
undertake such reasonable measures as may be
The fee for the assisting counsel shall be necessary to secure his safety and prevent his
paid by the city or municipality where escape.
the custodial investigation is conducted,
provided that if the municipality of city Section 5. Repealing Clause. Republic Act No.
cannot pay such fee, the province No. 857, as amended, is hereby repealed. Other
comprising such municipality or city laws, presidential decrees, executive orders or rules
shall pay the fee: Provided, That the and regulations, or parts thereof inconsistent with
Municipal or City Treasurer must certify the provisions of this Act are repealed or modified
that no funds are available to pay the fees accordingly.
of assisting counsel before the province
pays said fees. Section 6. Effectivity. This Act shall take effect
fifteen (15) days following its publication in the
In the absence of any lawyer, no custodial Official Gazette or in any daily newspapers of
investigation shall be conducted and the suspected general circulation in the Philippines.
person can only be detained by the investigating
officer in accordance with the provisions of Article Approved: April 27, 1992.
125 of the Revised Penal Code.
Custodial Investigation
Section 4. Penalty Clause. (a) Any arresting
public officer or employee, or any investigating
-is the stage where the police investigation is no longer a
officer, who fails to inform any person arrested,
detained or under custodial investigation of his general inquiry into an unsolved crime but has begun to
right to remain silent and to have competent and focus on a particular suspect taken into custody by the
independent counsel preferably of his own choice, police who carry out a process of interrogation that lends
shall suffer a fine of Six thousand pesos itself to elicit incriminating statements.
(P6,000.00) or a penalty of imprisonment of not
less than eight (8) years but not more than ten (10) a. Source, Definition, Scope and Procedure
years, or both. The penalty of perpetual absolute
disqualification shall also be imposed upon the Definition
investigating officer who has been previously
Section 2. Rights of Persons Arrested, Detained
convicted of a similar offense.
or Under Custodial Investigation; Duties of
Public Officers.
The same penalties shall be imposed
upon a public officer or employee, or
(f) Any person arrested or detained or under
anyone acting upon orders of such
custodial investigation shall be allowed visits by or
investigating officer or in his place, who
conferences with any member of his immediate
fails to provide a competent and
family, or any medical doctor or priest or religious
independent counsel to a person arrested,
minister chosen by him or by any member of his
detained or under custodial investigation
immediate family or by his counsel, or by any
for the commission of an offense if the
national non-governmental organization duly
latter cannot afford the services of his
accredited by the Commission on Human Rights of
own counsel.
by any international non-governmental
organization duly accredited by the Office of the
(b) Any person who obstructs, prevents President. The person's "immediate family" shall
or prohibits any lawyer, any member of include his or her spouse, fianc or fiance, parent
the immediate family of a person or child, brother or sister, grandparent or
arrested, detained or under custodial grandchild, uncle or aunt, nephew or niece, and
investigation, or any medical doctor or guardian or ward.
priest or religious minister chosen by him
or by any member of his immediate
As used in this Act, "custodial investigation"
family or by his counsel, from visiting
shall include the practice of issuing an
and conferring privately with him, or
"invitation" to a person who is investigated in
from examining and treating him, or
connection with an offense he is suspected to
from ministering to his spiritual needs, at
have committed, without prejudice to the
any hour of the day or, in urgent cases, of
liability of the "inviting" officer for any
the night shall suffer the penalty of
violation of law.
imprisonment of not less than four (4)
years nor more than six (6) years, and a
fine of four thousand pesos -Sec. 2(f) RA 7438
(P4,000.00).lawphi1
When does it start? Ans: When enforces zero-in
on the person. (as a probable suspect)
26
(a) Any person arrested detained or under
When you extend an invitation to a person custodial investigation shall at all times
pursuant to the last paragraph of Sec. 2 of RA be assisted by counsel.
7438, the right to counsel immediately attaches.
(b) Any public officer or employee, or
Duty of police during custodial investigation; anyone acting under his order or his
procedure place, who arrests, detains or investigates
any person for the commission of an
SECTION 12. (1) Any person under investigation
offense shall inform the latter, in a
for the commission of an offense shall have the
language known to and understood by
right to be informed of his right to remain silent
him, of his rights to remain silent and to
and to have competent and independent counsel
have competent and independent counsel,
preferably of his own choice. If the person cannot
preferably of his own choice, who shall
afford the services of counsel, he must be provided
at all times be allowed to confer privately
with one. These rights cannot be waived except in
with the person arrested, detained or
writing and in the presence of counsel.
under custodial investigation. If such
person cannot afford the services of his
(2) No torture, force, violence, threat, intimidation, own counsel, he must be provided with a
or any other means which vitiate the free will shall competent and independent counsel by
be used against him. Secret detention places, the investigating officer.lawphi1
solitary, incommunicado, or other similar forms of
detention are prohibited.
(c) The custodial investigation report
shall be reduced to writing by the
(3) Any confession or admission obtained in investigating officer, provided that before
violation of this or Section 17 hereof shall be such report is signed, or thumbmarked if
inadmissible in evidence against him. the person arrested or detained does not
know how to read and write, it shall be
(4) The law shall provide for penal and civil read and adequately explained to him by
sanctions for violations of this section as well as his counsel or by the assisting counsel
compensation to and rehabilitation of victims of provided by the investigating officer in
torture or similar practices, and their families. the language or dialect known to such
arrested or detained person, otherwise,
such investigation report shall be null and
-Art. III, Sec. 12 Constitution
void and of no effect whatsoever.
27
his counsel, or by any national non- the night shall suffer the penalty of
governmental organization duly imprisonment of not less than four (4)
accredited by the Commission on Human years nor more than six (6) years, and a
Rights of by any international non- fine of four thousand pesos
governmental organization duly (P4,000.00).lawphi1
accredited by the Office of the President.
The person's "immediate family" shall The provisions of the above Section
include his or her spouse, fianc or notwithstanding, any security officer with custodial
fiance, parent or child, brother or sister, responsibility over any detainee or prisoner may
grandparent or grandchild, uncle or aunt, undertake such reasonable measures as may be
nephew or niece, and guardian or ward. necessary to secure his safety and prevent his
escape.
As used in this Act, "custodial investigation" shall
include the practice of issuing an "invitation" to a -Sec. 4 RA 7438
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 c. Specific requirements in case law
any violation of law.
Waiver of right to counsel
-Sec. 2(a)(b)(c)(d)(e)(f) RA 7438 The right to counsel may be waived as long as such
waiver is made intelligently and voluntarily, with
full understanding of its consequence.
Consequences of violation
SECTION 12. -People v. Caguioa 141 SCRA 289
(3) Any confession or admission obtained in
violation of this or Section 17 hereof shall be
The right to counsel may be waived but to insure
inadmissible in evidence against him.
that the waiver is voluntary and intelligent, the
-Art. III, Sec. 12(1) Constitution waiver must be in writing and in the presence
of the counsel of the accused. (People v. Del
Section 4. Penalty Clause. (a) Any arresting Castillo, 439 SCRA 601)
public officer or employee, or any investigating
officer, who fails to inform any person arrested, Counsel of choice during custodial investigation
detained or under custodial investigation of his Thus, the lawyer called to be present during such
right to remain silent and to have competent and investigation should be as far as possible, the
independent counsel preferably of his own choice, choice of the individual undergoing questioning. If
shall suffer a fine of Six thousand pesos the lawyer were one furnished in the accuseds
(P6,000.00) or a penalty of imprisonment of not behalf, it is important that he should be
less than eight (8) years but not more than ten (10) competent and independent, i.e., that he is
years, or both. The penalty of perpetual absolute willing to fully safeguard the constitutional rights
disqualification shall also be imposed upon the of the accused, as distinguished from one who
investigating officer who has been previously would merely be giving a routine, peremptory and
convicted of a similar offense. meaningless recital of the individuals constitutional
rights.
The same penalties shall be imposed
upon a public officer or employee, or -People v. Labtan 320 SCRA 140
anyone acting upon orders of such
investigating officer or in his place, who Compliance with requirement to inform person
fails to provide a competent and detained of rights
independent counsel to a person arrested, When the Constitution requires a person under
detained or under custodial investigation investigation "to be informed" of his right to
for the commission of an offense if the remain silent and to counsel, it must be presumed
latter cannot afford the services of his to contemplate the transmission of meaningful
own counsel. information rather than just the ceremonial and
perfunctory recitation of an abstract constitutional
(b) Any person who obstructs, prevents principle. As a rule, therefore, it would not be
or prohibits any lawyer, any member of sufficient for a police officer just to repeat to the
the immediate family of a person person under investigation the provisions of
arrested, detained or under custodial Section 20, Article IV of the Constitution. He is not
investigation, or any medical doctor or only duty-bound to tell the person the rights to
priest or religious minister chosen by which the latter is entitled; he must also explain
him or by any member of his immediate their effects in practical terms, e.g., what the person
family or by his counsel, from visiting under interrogation may or may not do, and in a
and conferring privately with him, or language the subject fairly understands.
from examining and treating him, or
from ministering to his spiritual needs, at -People v. Nicandro 141 SCRA 289
any hour of the day or, in urgent cases, of
28
Police line-up any confession made outside police officers, say
Since petitioner in the course of his Identification news reporters, can be used against the accused.
in the police line-up had not yet been held to
answer for a criminal offense, he was, therefore, Rights and Remedies
not deprived of his right to be assisted by counsel
because the accusatory process had not yet set in. a. Rights of persons under arrest
The police could not have violated petitioner's right
SECTION 12. (1) Any person under investigation for
to counsel and due process as the confrontation
the commission of an offense shall have the right to be
between the State and him had not begun. In fact,
informed of his right to remain silent and to have
when he was Identified in the police line-up by
competent and independent counsel preferably of his
complainant he did not give any statement to the
own choice. If the person cannot afford the services of
police. He was, therefore, not interrogated at all as
counsel, he must be provided with one. These rights
he was not facing a criminal charge. Far from what
cannot be waived except in writing and in the presence
he professes, the police did not, at that stage, exact
of counsel.
a confession to be used against him. For it was not
he but the complainant who was being investigated
at that time. He "was ordered to sit down in front of (2) No torture, force, violence, threat, intimidation, or
the complainant while the latter was being any other means which vitiate the free will shall be used
investigated" against him. Secret detention places, solitary,
incommunicado, or other similar forms of detention are
-Gamboa v. Cruz GR No. L-56291 prohibited.
Police line-up is not part of the custodial inquest, (3) Any confession or admission obtained in violation of
hence, the person is not yet entitled, at such this or Section 17 hereof shall be inadmissible in
stage, to counsel. He is not yet held to answer for evidence against him.
a criminal offense.
(4) The law shall provide for penal and civil sanctions
Proof of voluntariness of confession; burden on for violations of this section as well as compensation to
and rehabilitation of victims of torture or similar
prosecution
practices, and their families.
Whenever a protection given by the Constitution is
waived by the person entitled to that protection, the
presumption is always against the waiver. -Art. III, Sec. 12 Constitution
Consequently, the prosecution must prove with
strongly convincing evidence to the satisfaction of Section 14. Right of attorney or relative to visit person
this Court that indeed the accused willingly and arrested. Any member of the Philippine Bar shall, at
voluntarily submitted his confession and the request of the person arrested or of another acting in
knowingly and deliberately manifested that he was his behalf, have the right to visit and confer privately
not interested in having a lawyer assist him during with such person in the jail or any other place of custody
the taking of that confession. That proof is missing at any hour of the day or night. Subject to reasonable
in this case. regulations, a relative of the person arrested can also
exercise the same right. (14a)
-People v. Jara 144 SCRA 516
-Rule 113, Sec. 14 ROC
Exceptional cases of uncounseled confessions
not held to be excluded Section 2. Rights of Persons Arrested, Detained or
The rights under Section 12 are guaranteed to Under Custodial Investigation; Duties of Public
preclude the slightest use of coercion by the state as Officers.
would lead the accused to admit something false,
not to prevent him from freely and voluntarily
telling the truth. (a) Any person arrested detained or under
custodial investigation shall at all times be
We rule that appellant's verbal confessions to the assisted by counsel.
newsmen are not covered by Section 12 (1) and (3)
of Article III of the Constitution. The Bill of (b) Any public officer or employee, or anyone
acting under his order or his place, who
Rights does not concern itself with the relation
arrests, detains or investigates any person for
between a private individual and another the commission of an offense shall inform the
individual. It governs the relationship between latter, in a language known to and understood
the individual and the State. by him, of his rights to remain silent and to
have competent and independent counsel,
-People v. Andan 269 SCRA 95 preferably of his own choice, who shall at all
times be allowed to confer privately with the
person arrested, detained or under custodial
The Bill of Rights does not apply to seek
investigation. If such person cannot afford the
protection against private persons. Therefore, services of his own counsel, he must be
29
provided with a competent and independent
counsel by the investigating officer.lawphi1 -is the security given for the release of a person
in custody of the law, furnished by him or a
(c) The custodial investigation report shall be bondsman, to guarantee his appearance before
reduced to writing by the investigating officer, any court as required under the conditions
provided that before such report is signed, or hereinafter specified. Bail may be given in the
thumbmarked if the person arrested or form of corporate surety, property bond, cash
detained does not know how to read and write,
deposit, or recognizance. (Rule 126, Sec.1 ROC)
it shall be read and adequately explained to
him by his counsel or by the assisting counsel
provided by the investigating officer in the SECTION 14. (1) No person shall be held to
language or dialect known to such arrested or answer for a criminal offense without due process
detained person, otherwise, such investigation of law.
report shall be null and void and of no effect
whatsoever. (2) In all criminal prosecutions, the accused shall
be presumed innocent until the contrary is proved,
(d) Any extrajudicial confession made by a and shall enjoy the right to be heard by himself and
person arrested, detained or under custodial counsel, to be informed of the nature and cause of
investigation shall be in writing and signed by the accusation against him, to have a speedy,
such person in the presence of his counsel or impartial, and public trial, to meet the witnesses
in the latter's absence, upon a valid waiver, face to face, and to have compulsory process to
and in the presence of any of the parents, elder secure the attendance of witnesses and the
brothers and sisters, his spouse, the municipal production of evidence in his behalf. However,
mayor, the municipal judge, district school after arraignment, trial may proceed
supervisor, or priest or minister of the gospel notwithstanding the absence of the accused
as chosen by him; otherwise, such provided that he has been duly notified and his
extrajudicial confession shall be inadmissible failure to appear is unjustifiable.
as evidence in any proceeding.
-Art. 3, Sec. 14 Constitution
(e) Any waiver by a person arrested or
detained under the provisions of Article 125 Section 15. Recognizance. Before final
of the Revised Penal Code, or under custodial conviction, all juveniles charged with offenses
investigation, shall be in writing and signed by falling under the Revised Rule on Summary
such person in the presence of his counsel; Procedure shall be released on recognizance to the
otherwise the waiver shall be null and void custody of their parents or other suitable person
and of no effect. who shall be responsible for the juveniles
appearance in court whenever required.
(f) Any person arrested or detained or under
custodial investigation shall be allowed visits Section 16. When Bail a Matter of Right. All
by or conferences with any member of his juveniles in conflict with the law shall be admitted
immediate family, or any medical doctor or to bail as a matter of right before final conviction
priest or religious minister chosen by him or of an offense not punishable by death, reclusion
by any member of his immediate family or by perpetua or life imprisonment.
his counsel, or by any national non-
governmental organization duly accredited by In the event the juvenile cannot post bail for lack of
the Commission on Human Rights of by any financial resources, the Family Court shall commit
international non-governmental organization the juvenile pursuant to Section 18 of this Rule.
duly accredited by the Office of the President.
The person's "immediate family" shall include
However, where the juvenile does not pose a threat
his or her spouse, fianc or fiance, parent or
to public safety, the Family Court may, motu
child, brother or sister, grandparent or
proprio or upon motion and recommendation of the
grandchild, uncle or aunt, nephew or niece,
and guardian or ward. DSWD, release the juvenile on recognizance to the
custody of his parents or other responsible person.
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bail shall not bar the accused from challenging the
validity of his arrest or the legality of the warrant -People v. Alojado 305 SCRA 236
issued therefor, or from assailing the regularity or
questioning the absence of a preliminary
investigation of the charge against him, provided
It is hornbook knowledge that any irregularity
that he raises them before entering his plea. The
attending the arrest of an accused is deemed
court shall resolve the matter as early as practicable
waived when, instead of quashing the information
but not later than the start of the trial of the case.
for lack of jurisdiction over his person, the accused
(n)
voluntarily submits himself to the court by entering
a plea of guilty or not guilty during the arraignment
-Rule 114, Sec. 26 ROC and participating in the proceedings.
The warrant of arrest with no recommendation for -People v. Rondero 320 SCRA 383
bail that was issued by respondent Judge is a
downright violation of Paradas constitutional right
to bail. The rule is clear that unless charged with
Motion to quash information; preliminary
offenses punishable by reclusion perpetua and the investigation/ reinvestigation
evidence of guilt is strong, all persons detained, Section 1. Time to move to quash. At any time
arrested or otherwise under the custody of the law before entering his plea, the accused may move to
are entitled to bail as a matter of right. It should be quash the complaint or information. (1)
noted that the crime with which Parada was
charged is estafa which is undoubtedly a bailable Section 3. Grounds. The accused may move to
offense. This circumstance could not have escaped quash the complaint or information on any of the
the attention of the respondent judge when he following grounds:
issued on June 3, 1994 the order of arrest of Parada
with no recommendation for his bail. In so doing, (a) That the facts charged do not
respondent judge exhibited that degree of constitute an offense;
ignorance so gross which the Court can not
countenance.
(b) That the court trying the case has no
-Parada v. Veneracion 269 SCRA 371 jurisdiction over the offense charged;
Habeas Corpus (c) That the court trying the case has no
jurisdiction over the person of the
-is a writ requiring a person under arrest to be accused;
brought before a judge or into court, especially to
secure the person's release unless lawful grounds (d) That the officer who filed the
are shown for their detention. information had no authority to do so;
The function of the special proceeding of habeas (e) That it does not conform substantially
corpus is to inquire into the legality of one's to the prescribed form;
detention. Now that the detained attorneys'
incarceration is by virtue of a judicial order in (f) That more than one offense is charged
relation to criminal cases subsequently filed against except when a single punishment for
them before the Regional Trial Court Davao City, various offenses is prescribed by law;
the remedy of habeas corpus no longer lies. The
Writ had served its purpose.
(g) That the criminal action or liability
has been extinguished;
-Ilagan v. Enrile 139 SCRA 349
But cf: Effects of plea on objections to legality of (h) That it contains averments which, if
true, would constitute a legal excuse or
arrest justification; and
Anent the validity of his arrest, Alojado maintains
that he was illegally arrested. This
argument, however, comes too late in the day, (i) That the accused has been previously
because appellant failed to allege it prior to his convicted or acquitted of the offense
arraignment. The Court has previously charged, or the case against him was
emphasized that an objection to the legality of dismissed or otherwise terminated
an arrest must be submitted to the trial court without his express consent. (3a)
before the accused enters his plea.
-Rule 117, Secs. 1 and 3 ROC
Any defect concerning his arrest was cured by
his voluntary, submission to the jurisdiction of
the trial court when he entered his plea during
Criminal liability for unlawful arrest
his arraignment, and when he actively
participated in the trial thereafter.
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Article 124. Arbitrary detention. - Any public (2) Any evidence obtained in violation of this or
officer or employee who, without legal grounds, the preceding section shall be inadmissible for any
detains a person, shall suffer; purpose in any proceeding.
32