1. REPUBLIC ACT NO. 7438
AN ACT DEFINING CERTAIN RIGHTS OF
PERSON ARRESTED, DETAINED OR
UNDER CUSTODIAL INVESTIGATION
2. STATEMENT OF POLICY:
IT IS THE POLICY OF THE SENATE TO VALUE
THE DIGNITY OF EVERY HUMAN BEING AND
GUARANTEE FULL RESPECT FOR HUMAN
RIGHTS.
3. RIGHTS OF PERSONS ARRESTED, DETAINED OR
UNDER CUSTODIAL INVESTIGATION
1. ANY PERSON ARRESTED DETAINED OR UNDER
CUSTODIAL INVESTIGATION SHALL AT ALL
TIMES BE ASSISTED BY COUNSEL.
- "CUSTODIAL INVESTIGATION" SHALL INCLUDE
THE PRACTICE OF ISSUING AN "INVITATION"
TO A PERSON WHO IS INVESTIGATED IN
CONNECTION WITH AN OFFENSE HE IS
SUSPECTED TO HAVE COMMITTED, WITHOUT
PREJUDICE TO THE LIABILITY OF THE
"INVITING" OFFICER FOR ANY VIOLATION OF
LAW
4. WHEN DOES CUSTODIAL INVESTIGATION
START?
- COMMENCES WHEN A PERSON IS TAKEN
INTO CUSTODY AND IS SINGLED OUT AS A
SUSPECT IN THE COMMISSION OF A CRIME
UNDER INVESTIGATION AND THE POLICE
OFFICERS BEGIN TO ASK QUESTIONS ON
THE SUSPECT'S PARTICIPATION THEREIN
AND WHICH TEND TO ELICIT AN ADMISSION
5. IS POLICE LINE-UP PART OF CUSTODIAL
INVESTIGATION?
NO. POLICE LINE-UP IS NOT YET A PART OF
CUSTODIAL INVESTIGATION.
- THE STAGE OF THE INVESTIGATION WHEREIN
A PERSON IS ASKED TO STAND IN A POLICE
LINE-UP IS OUTSIDE THE MANTLE OF
PROTECTION OF THE RIGHT TO COUNSEL
BECAUSE IT INVOLVES A GENERAL INQUIRY
INTO AN UNSOLVED CRIME AND IS PURELY
INVESTIGATORY IN NATURE.
6. 2. RIGHT TO BE INFORMED, IN A LANGUAGE
KNOWN TO AND UNDERSTOOD BY HIM, OF
HIS RIGHTS TO REMAIN SILENT AND TO
HAVE COMPETENT AND INDEPENDENT
COUNSEL, PREFERABLY OF HIS OWN
CHOICE, WHO SHALL AT ALL TIMES BE
ALLOWED TO CONFER PRIVATELY WITH THE
PERSON ARRESTED, DETAINED OR UNDER
CUSTODIAL INVESTIGATION.
IF SUCH PERSON CANNOT AFFORD THE
SERVICES OF HIS OWN COUNSEL, HE MUST
BE PROVIDED WITH A COMPETENT AND
INDEPENDENT COUNSEL BY THE
INVESTIGATING OFFICER.
7. 3. THE CUSTODIAL INVESTIGATION REPORT
SHALL BE REDUCED TO WRITING BY THE
INVESTIGATING OFFICER AND TO BE READ
AND ADEQUATELY EXPLAINED TO THE
ARRESTED AND DETAINED PERSON BY HIS
COUNSEL OR BY THE ASSISTING COUNSEL
PROVIDED BY THE INVESTIGATING OFFICER
IN THE LANGUAGE OR DIALECT KNOWN TO
SUCH ARRESTED OR DETAINED PERSON
BEFORE IT IS SIGNED BY HIM.
OTHERWISE, SUCH INVESTIGATION REPORT
SHALL BE NULL AND VOID AND OF NO
EFFECT WHATSOEVER.
8. 4. EXTRAJUDICIAL CONFESSION MADE SHALL
BE:
IN WRITING, AND
SIGNED BY SUCH PERSON IN THE PRESENCE
OF HIS COUNSEL OR IN THE LATTER'S
ABSENCE, UPON A VALID WAIVER, AND IN THE
PRESENCE OF ANY OF THE PARENTS, ELDER
BROTHERS AND SISTERS, HIS SPOUSE, THE
MUNICIPAL MAYOR, THE MUNICIPAL JUDGE,
DISTRICT SCHOOL SUPERVISOR, OR PRIEST
OR MINISTER OF THE GOSPEL AS CHOSEN BY
HIM.
- EXTRAJUDICIAL CONFESSION WHICH IS NOT IN
ACCORDANCE WITH THE FOREGOING SHALL
BE INADMISSIBLE AS EVIDENCE IN ANY
PROCEEDING.
9. 5. ANY WAIVER BY A PERSON ARRESTED OR
DETAINED UNDER THE PROVISIONS OF
ARTICLE 125 OF THE REVISED PENAL CODE,
OR UNDER CUSTODIAL INVESTIGATION,
SHALL BE IN WRITING AND SIGNED BY SUCH
PERSON IN THE PRESENCE OF HIS
COUNSEL;
- OTHERWISE, THE WAIVER SHALL BE
NULL AND VOID AND OF NO EFFECT.
10. 6. RIGHT TO BE VISITED BY OR HAVE CONFERENCE WITH:
- ANY MEMBER OF HIS IMMEDIATE FAMILY
- ANY MEDICAL DOCTOR
- PRIEST OR RELIGIOUS MINISTER CHOSEN BY HIM OR BY ANY
MEMBER OF HIS IMMEDIATE FAMILY
- BY HIS COUNSEL
- BY ANY NATIONAL NON-GOVERNMENTAL ORGANIZATION DULY
ACCREDITED BY THE COMMISSION ON HUMAN RIGHTS OF BY
ANY INTERNATIONAL NON-GOVERNMENTAL ORGANIZATION DULY
ACCREDITED BY THE OFFICE OF THE PRESIDENT.
THE PERSON'S "IMMEDIATE FAMILY" SHALL INCLUDE HIS OR HER
SPOUSE, FIANCEE OR FIANCE, PARENT OR CHILD, BROTHER OR
SISTER, GRANDPARENT OR GRANDCHILD, UNCLE OR AUNT,
NEPHEW OR NIECE, AND GUARDIAN OR WARD.
11. UNLAWFUL ACTS
1. VIOLATION OF THE RIGHTS OF PERSONS
ARRESTED, DETAINED OR UNDER CUSTODIAL
INVESTIGATION.
PENALTY:
- IMPRISONMENT OF NOT LESS THAN 8
YEARS BUT NOT MORE THAN TEN (10) YEARS,
OR A FINE OF SIX THOUSAND PESOS
(P6,000.00) OR BOTH. THE PENALTY OF
PERPETUAL ABSOLUTE DISQUALIFICATION
SHALL ALSO BE IMPOSED UPON THE
INVESTIGATING OFFICER WHO HAS BEEN
PREVIOUSLY CONVICTED OF A SIMILAR
OFFENSE.
12. 2. OBSTRUCTING, PREVENTING OR
PROHIBITING ANY LAWYER, MEMBER OF
THE IMMEDIATE FAMILY, ANY MEDICAL
DOCTOR OR PRIEST OR RELIGIOUS
MINISTER FROM VISITING AND CONFERRING
PRIVATELY WITH THE ARRESTED, DETAINED
OR UNDER CUSTODIAL EXAMINATION.
PENALTY:
- IMPRISONMENT OF NOT LESS THAN 4
YEARS NOR MORE THAN 6 YEARS AND A
FINE OF FOUR THOUSAND PESOS
(P4,000.00).
14. PRELIMINARY INVESTIGATION
• PRELIMINARY INVESTIGATION IS AN INQUIRY OR
PROCEEDING TO DETERMINE WHETHER THERE IS
SUFFICIENT GROUND TO ENGENDER A WELL-
FOUNDED BELIEF THAT A CRIME HAS BEEN
COMMITTED AND THE RESPONDENT IS
PROBABLY GUILTY THEREOF AND SHOULD BE
HELD FOR TRIAL (SEC. 1, RULE 112, REVISED
RULES ON CRIMINAL PROCEDURE)
16. WHAT IS A COMPLAINT?
• A SWORN WRITTEN STATEMENT;
• CHARGING A PERSON WITH AN
OFFENSE;
• SUBSCRIBED BY THE OFFENDED
PARTY, ANY PEACE OFFICER OR
PUBLIC OFFICER CHARGED WITH THE
ENFORCEMENT OF THE LAW
VIOLATED.
17. WHAT IS AN INFORMATION?
• AN ACCUSATION IN WRITING;
• CHARGING A PERSON WITH AN
OFFENSE;
• SUBSCRIBED BY THE PROSECUTOR
AND FILED WITH THE COURT.
18. CONTENTS OF AN INFORMATION OR A
COMPLAINT
• NAME OF ACCUSED
• THE LAW VIOLATED
• ACTS OR OMISSIONS COMPLAINED OF AS
CONSTITUTING THE OFFENSE
• QUALIFYING AND AGGRAVATING
CIRCUMSTANCES
• NAME OF OFFENDED PARTY
• APPROXIMATE DATE OF COMMISSION OF THE
OFFENSE
• PLACE WHERE OFFENSE WAS COMMITTED
19. ATTACHMENTS TO THE COMPLAINT
• SWORN STATEMENTS OF
COMPLAINANT AND WITNESSES
• MEDICO-LEGAL REPORT
• INVESTIGATION REPORT OF THE
DSWD OR LAW ENFORCEMENT
AGENCY (FOR A CHILD ABUSE CASE)
20. OTHER REQUIREMENTS FOR
PRELIMINARY INVESTIGATION
• complete name and address of offender in
the preliminary investigation sheet
• sworn statements subscribed and sworn to
before the prosecutor, or a government
official authorized to administer oath, or in
their absence, any notary public .
• the certification of the subscribing officer
that he personally examined the affiant and
is satisfied that he voluntarily executed and
understood his statements
21. PURPOSE OF PRELIMINARY
INVESTIGATION
• TO SECURE THE INNOCENT AGAINST HASTY,
MALICIOUS AND OPPRESSIVE PROSECUTION AND TO
PROTECT HIM FROM AN OPEN AND PUBLIC
ACCUSATION OF A CRIME AND FROM THE TROUBLE,
EXPENSE AND ANXIETY OF A PUBLIC TRIAL (PP VS.
POCULAN, 176 SCRA 176).
• TO PROTECT THE STATE FROM HAVING TO CONDUCT
USELESS AND EXPENSIVE TRIALS (TANDOC VS.
RESULTAN, 175 SCRA 37).
22. OFFICERS AUTHORIZED TO CONDUCT
PRELIMINARY INVESTIGATION
• PROVINCIAL OR CITY PROSECUTORS
AND THEIR ASSISTANTS
• NATIONAL AND REGIONAL STATE
PROSECUTORS AND THEIR
ASSISTANTS
• OTHER OFFICERS AS MAY BE
AUTHORIZED BY LAW
(AM NO. 05-8-26-SC DATED
AUGUST 30, 2005)
24. INQUEST
CONCEPT
AN INFORMAL AND SUMMARY INVESTIGATION
CONDUCTED BY A PUBLIC PROSECUTOR IN
CRIMINAL CASES INVOLVING PERSONS ARRESTED
AND DETAINED WITHOUT THE BENEFIT OF A
WARRANT OF ARREST ISSUED BY THE COURT FOR
THE PURPOSE OF DETERMINING WHETHER OR NOT
SAID PERSONS SHOULD REMAIN UNDER CUSTODY
AND CORRESPONDINGLY BE CHARGED IN COURT
(2008 REVISED MANUAL FOR PROSECUTORS)
25. COVERAGE
1. ALL OFFENSES UNDER THE RPC
2. SPECIAL LAWS
N.B. FOR CICLS, ONLY OFFENSES PUNISHABLE BY
IMPRISONMENT OF NOT LESS THAN 6 YEARS AND
ONE DAY; NO INQUEST IF CICL NOT YET BROUGHT
BEFORE THE LSWDO PURSUANT TO RULES ON
INQUEST WITH RESPECT TO CICL
26. WHEN COMMENCED
• UPON RECEIPT BY PROSECUTOR OF THE
FOLLOWING:
• ACCOMPLISHED INVESTIGATION DATA FORM
• AFFIDAVIT OF ARREST DULY SUBSCRIBED AND SWORN
TO BEFORE THE PROSECUTOR BY THE ARRESTING
OFFICER/S
• INVESTIGATION REPORT
• SWORN STATEMENTS OF COMPLAINANT/S &
WITNESS/ES
• OTHER SUPPORTING EVIDENCE GATHERED (E.G.
CERTIFICATIONS, PHOTOS, OBJECT OR REAL EVIDENCE)
27. IN ADDITION, FOR VIOLATION OF R.A. 9165
1. CHEMISTRY REPORT OR CERTIFICATE OF
LABORATORY EXAMINATION DULY SIGNED
BY THE FORENSIC CHEMIST OR OTHER DULY
AUTHORIZED OFFICER, OR IF UNAVAILABLE,
THE FIELD TEST RESULTS ON THE SEIZED
DRUG, AS ATTESTED TO BY A PNP
NARCOTICS COMMAND OPERATIVE OR
OTHER COMPETENT PERSON, IN WHICH
CASE, THE INQUEST PROSECUTOR SHALL
DIRECT THE ARRESTING OFFICER TO
IMMEDIATELY FORWARD THE SEIZED DRUG
TO THE CRIME LABORATORY FOR EXPERT
TESTING AND TO SUBMIT THE FINAL
FORENSIC CHEMISTRY REPORT TO THE
PROSECUTOR’S OFFICE WITHIN FIVE (5) DAYS
FROM INQUEST DATE;
28. 2. PHOTOCOPY OR PHOTOGRAPH OF THE
BUY-BUST MONEY, IF AVAILABLE
3. AFFIDAVIT OF POSEUR-BUYER, IF ANY
4. OTHER EVIDENCE AVAILABLE ( THAT
WHICH WILL ESTABLISH THE IDENTITY OF
THE BUYER AND THE SELLER, THE
OBJECT OF THE SALE AND THE
CONSIDERATION, THE DELIVERY OF THE
THING SOLD AND ITS PAYMENT ETC.)
29. 5. SWORN STATEMENTS OF THE POLICE OFFICERS,
REPORT OF THE CHEMICAL ANALYST, AND THE
OBJECT EVIDENCE SHOWING COMPLIANCE
WITH THE RULES GOVERNING BUY-BUST
OPERATIONS, I.E, CHAIN OF CUSTODY OF THE
OBJECT EVIDENCE, SECTION 21 OF R.A. NO.
9165 (PEOPLE VS. LUIS PAJARIN Y DE LA CRUZ
AND EFREN PALLAYA Y TUVIERA, GR NO.
190640, JANUARY 12, 2011)
30. WHERE OFFENDER IS A MINOR, SUBMIT THE
FOLLOWING ALSO:
1. BIRTH CERTIFICATE
2. DENTAL CHART ACCOMPANIED BY A
CERTIFICATION FROM THE DENTIST, OR:
3. AFFIDAVIT OF PARENT/S DISINTERESTED
PARTIES
4. CERTIFICATE OF DISCERNMENT FROM
LSWD IN CASES COVERED BY R.A. 9344
31. PRESENCE OF THE DETAINED PERSON WHO IS UNDER
CUSTODY IS REQUIRED DURING THE PROCEEDINGS.
HOWEVER, THE PRODUCTION OF THE DETAINED PERSON
BEFORE THE INQUEST OFFICER MAY BE DISPENSED WITH:
• IF HE IS CONFINED IN A HOSPITAL
• IF HE IS DETAINED UNDER MAXIMUM SECURITY
• IF PRODUCTION OF THE DETAINED PERSON WILL INVOLVE
SECURITY RISK
• IF THE PRESENCE OF THE DETAINED PERSON IS NOT
FEASIBLE BY REASON OF HIS AGE, HEALTH, SEX AND OTHER
SIMILAR FACTOR
32. DETERMINATION OF ARREST PURSUANT TO
RULE 113, REVISED RULES ON CRIMINAL
PROCEDURE
a) WHEN, IN THE PRESENCE OF THE
ARRESTING OFFICER, THE PERSON TO BE
ARRESTED HAS COMMITTED, IS
ACTUALLY COMMITTING, OR IS
ATTEMPTING TO COMMIT AN OFFENSE;
b) WHEN AN OFFENSE HAS IN FACT JUST
BEEN COMMITTED, AND THE ARRESTING
OFFICER HAS PROBABLE CAUSE TO
BELIEVE, BASED ON PERSONAL
KNOWLEDGE OF FACTS OR
CIRCUMSTANCES, THAT THE PERSON TO
33. c) WHEN THE PERSON TO BE ARRESTED IS A
PRISONER WHO HAS ESCAPED FROM A
PENAL ESTABLISHMENT OR PLACE WHERE
HE IS SERVING FINAL JUDGMENT OR IS
TEMPORARILY CONFINED WHILE HIS
CASE IS PENDING OR HAS ESCAPED
WHILE BEING TRANSFERRED FROM ONE
CONFINEMENT TO ANOTHER.
SUMMARY EXAMINATION OF THE ARRESTING
OFFICERS ON CIRCUMSTANCES SURROUNDING
THE ARREST OR APPREHENSION OF THE
DETAINED PERSON
BUY-BUST OPERATIONS ARE CONSIDERED
ARRESTS IN FLAGRANTE DELICTO (PEOPLE VS.
LACAP, 368 SCRA 64)
34. ARREST NOT PROPERLY EFFECTED
• RECOMMEND RELEASE
• PREPARE RESOLUTION INDICATING REASONS
FOR ACTION TAKEN
• FORWARD CASE TO CSP/PP/CP
IF, EVIDENCE ON HAND WARRANTS THE
CONDUCT OF REGULAR PRELIMINARY
INVESTIGATION
• DIRECT RELEASE OF ARRESTED PERSON
• SET FOR PRELIMINARY INVESTIGATION
35. ARREST PROPERLY EFFECTED
• ASK DETAINED/ARRESTED PERSON IF HE
DESIRES TO AVAIL OF PRELIMINARY
INVESTIGATION
• IF PRELIMINARY INVESTIGATION IS AVAILED,
EXECUTE WAIVER OF ART. 125 OF RPC
• IF PRELIMINARY INVESTIGATION NOT
AVAILED, PROCEED WITH INQUEST
PROCEEDINGS
36. INQUEST
EXAMINE THE AFFIDAVITS/SWORN STATEMENT OF
THE COMPLAINANT AND HIS WITNESSES AS WELL
AS OTHER SUPPORTING EVIDENCE TO DETERMINE:
-IF ARREST IS LEGAL
-IF PROBABLE CAUSE EXIST
WCPC
37. PROBABLE CAUSE (IN INQUEST CASES)
• AN ACTUAL BELIEF OR REASONABLE
GROUNDS OF SUSPICION (PEOPLE VS.
TUDTUD, G.R. NO. 144037, SEPTEMBER 26,
2003) THAT THE PERSON TO BE ARRESTED IS
ABOUT TO COMMIT, OR IS ATTEMPTING TO
COMMIT A CRIME, OR IS IN THE ACT OF
COMMITTING A CRIME, OR HAS COMMITTED
A CRIME, EITHER IN THE PRESENCE OR
WITHOUT THE PRESENCE OF THE ARRESTING
OFFICER.
38. - PREPARATION OF THE RESOLUTION WHICH
SHALL BE FORWARDED TO THE CSP/PP/CP
FOR APPROVAL
- WITH PROBABLE CAUSE: FILE
INFORMATION IN COURT
- ABSENCE OF PROBABLE CAUSE:
RESOLUTION FOR DISMISSAL OF
COMPLAINT
39. FOR VIOLATION OF R.A. 9165
• RECOMMENDATION OF DISMISSAL SHALL BE
FORWARDED TO THE DOJ SEC OR RSP FOR
AUTOMATIC REVIEW (DOJ DC NO. 46 DATED
JUNE 26, 2003)
• DOJ SEC WILL FORWARD CASES TO OP (AO NO.
253 DATED JANUARY 29, 2009; DOJ DC NO.
11 DATED FEBRUARY 19, 2009)
40. RECOVERED ARTICLES
• INQUEST PROSECUTOR SHALL:
1. SEE TO IT THAT ALL THE ARTICLES
RECOVERED BY THE LAW
ENFORCEMENT AUTHORITIES AT
THE TIME OF THE ARREST ARE
PHYSICALLY INVENTORIED,
CHECKED AND ACCOUNTED FOR
2. MAKE SURE PHOTOGRAPHS OF
RECOVERED ARTICLES TAKEN AND
ATTACHED TO THE RECORD
41. RECOVERED ARTICLES
• INQUEST PROSECUTOR SHALL:
• ENSURE ITEMS RECOVERED
ARE DULY SAFEGUARDED BY
THE LAW ENFORCER.
• THE CHAIN OF CUSTODY IS
PROPERLY RECORDED.
42. INQUEST PROCEDURE
(12 hours for LIGHT PENALTIES; 18 hours for CORRECTIONAL
PENALTIES; 36 hours for AFFLICTIVE/CAPITAL PENALTIES)
A. When arrest properly effected
ARREST
NO
WAIVER
W/
WAIVER
W/
PROBABLE
CAUSE
W/O
PROBABLE
CAUSE
P.I.
REC
FILING
IN COURT
REC
DISMISSAL
& RELEASE
ACTION
BY
CP/PP/CSP
SUST.
REV.
SUST.
REV.
FILE
INFO
DISM./
RELEASE
DISM./
RELEAS
E
FILE
INFO
WCPC
43. B. When arrest not properly effected
ARREST
REG. PI;
RELEASE
REC. DISM. OF
COMPLAINT;
RELEASE OF
RESPONDENT
ACTION BY
CP/PP/CSP
SUSTAIN
REVERSE
P.I.
PROCEED
WITH
INQUEST
WCPC
