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Rights of persons under Custodial Investigation in the Philippines

(1) The rights of an accused person under in-custody investigation are expressly enumerated in Sec.
12, Art. III of the Constitution, viz:

(a)Any person under investigation for the commission of an offense shall have the right to be informed
of his rights to remain silent and to have competent and independent counsel preferably of his own
choice. If the person cannot afford the services of counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence of counsel;

(b)No torture, force, violence, intimidation or any other means which vitiate the free will shall be used
against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are
prohibited;

(c)Any confession or admission in violation of this or Sec. 17 (Self-Incrimination Clause) hereof shall be
inadmissible in evidence against him;

(d)The law shall provide for penal and civil sanctions for violation of this section as well as compensation
to aid rehabilitation of victims of torture or similar practice, and their families.

(2) Under RA 7834, the following are the rights of persons arrested, detained or under custodial
investigation:

(a)Any person arrested, detained or under custodial investigation shall at all times be assisted by
counsel;

(b)Any public officer or employee, or anyone acting under his order or in his place, who arrests, detains
or investigates any person for the commission of an offense shall inform the latter, in a language known
to and understood by him, of his right to remain silent and to have competent and independent counsel,
preferably of his own choice, who shall at all times be allowed to confer privately with the person
arrested, detained or under custodial investigation. If such person cannot afford the services of his own
counsel, he must be provided with a competent and independent counsel by the investigating officer;

(c)The custodial investigation report shall be reduced to writing by investigating officer, provided that
before such report is signed, or thumbmarked if the person arrested or detained does not know how to
read and write, it shall be read and adequately explained to him by his counsel or by the assisting
counsel provided by the investigating officer in the language or dialect known to such arrested or
detained person, otherwise, such investigation report shall be null and void and of no effect
whatsoever;
(d)Any extrajudicial confession made by a person arrested, detained or under custodial investigation
shall be in writing and signed by such person in the presence of his counsel or in the latter‘s absence,
upon a valid waiver, and in the presence of any of the parents, older brothers and sisters, his spouse,
the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel
as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any
proceeding;

(e)Any waiver by person arrested or detained under the provisions of Art. 125 of the Revised Penal Code
or under custodial investigation, shall be in writing signed by such person in the presence of his counsel;
otherwise such waiver shall be null and void and of no effect;

(f)Any person arrested or detained or under custodial investigation shall be allowed visits by his or
conferences with any member of his immediate family, or any medical doctor or priest or religious
minister chosen by him or by his counsel, or by any national NGO duly accredited by the Office of the
President. The person‘s ―immediate family‖ shall include his or her spouse, fiancé or fiancée, parent or
child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece and guardian or ward.

(3) Three rights are made available by Sec. 12(1):

(a)The right to remain silent — Under the right against self-incrimination in Sec. 17, only an accused has
the absolute right to remain silent. A person who is not an accused may assume the stance of silence
only when asked an incriminatory question. Under Sec. 12, however, a person under investigation has
the right to refuse to answer any question. His silence, moreover, may not be used against him (People
vs. Alegre and Gordoncillo, 94 SCRA 109);

(b)The right to counsel — Example of those who are not impartial counsel are (1) Special counsel,
private or public prosecutor, counsel of the police, or a municipal attorney whose interest is adverse to
that of the accused; (2) a mayor, unless the accused approaches him as counselor or adviser; (3) a
barangay captain; (4) any other whose interest may be adverse to that of the accused (People vs.
Tomaquin, GR 133188, July 23, 2004);

(c)The right to be informed o his rights — the right guaranteed here is more than what is shown in
television shows where the police routinely reads out the rights from a note card; he must also explain
their effects in practical terms (People vs. Rojas, 147 SCRA 169). Short of this, there is a denial of the
right, as it cannot then truly be said that the person has been informed of his rights (People vs.
Nicandro, 141 SCRA 289).

(4) Custodial investigation involves

- any questioning initiated by law enforcement officers after a person has been taken into
custody otherwise deprived of his freedom of action in any significant way. The right to custodial
investigation begins only when the investigation is no longer a general inquiry into an unsolved crime
but has begun to focus on a particular suspect, the suspect has been taken into police custody, the
police carry out a process of interrogations that lends itself to eliciting incriminating statements
(Escobedo vs. Illinois, 378 US 478; People vs. Marra, 236 SCRA 565). It should be noted however,
however, that although the scope of the constitutional right is limited to the situation in Escobedo and
Marra, RA 7438 has extended the guarantee to situations in which an individual has not been formally
arrested but has merely been ―invited‖ for questioning (People vs. Dumantay, GR 130612, May 11,
1999; People vs. Principe, GR 135862, May 2, 2002).

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