10 Basic Human Rights Standards

for Law Enforcement

In a democracy, the preservation and enhancement of the dignity and worth of the
human personality is the central core as well as the cardinal article of faith of our
civilization. The inviolable character of man as an individual must be "protected to
the largest possible extent in his thoughts and in his beliefs as the citadel of his
person." (PHILIPPINE BLOOMING MILLS EMPLOYMENT ORGANIZATION, et al. v.
PHILIPPINE BLOOMING MILLS CO., INC., G.R. No. L-31195, June 5, 1973)
What are human rights?

Human rights are universal legal guarantees protecting individuals and

groups against actions by Governments that interfere with fundamental freedoms
and human dignity. Human rights law obliges Governments to do some things and
prevents them from doing others. The following are some of the most frequently
cited characteristics of human rights:

• Internationally guaranteed
• Legally protected
• Focus on the dignity of the human being
• Protect individuals and groups
• Oblige States and State actors
• Cannot be waived or taken away
• Equal and interdependent
• Universal

Human rights norms and standards are derived from two principal types of
international source, “customary international law” and “treaty law”.

1. Customary international law (or simply “custom”) is international law that

develops through the general and consistent practice of States and is
followed because of a sense of legal obligation. In other words, if States
perform in a certain way over a period of time because they all believe that
they are required to do so, that behavior comes to be recognized as a
principle of international law, binding on States, even if it is not laid down in
a particular agreement.

Thus, while the Universal Declaration of Human Rights is not in itself a

binding treaty, provisions of the Declaration have been identified as having
the character of customary international law and States are therefore bound
to respect them.

2. Treaty law includes the law of human rights as set out in the many
international agreements (treaties, covenants, conventions) that have been
 collectively (either bilaterally or multilaterally) developed, signed and
ratified by States.

Do human rights undermine law and order?

They do not. The protection of human rights is fundamental to genuine and

lasting law and order. The Universal Declaration of Human Rights recognizes that
“it is essential, if man is not to be compelled to have recourse, as a last resort, to
rebellion against tyranny and oppression, that human rights should be protected
by the rule of law”.

Without the maintenance of the rule of law, violations of rights occur. And
where serious and systematic human rights violations occur, disrespect for the law
and public authorities grows and open conflict becomes more likely. Violating
human rights cannot contribute to the maintenance of public order and security
but can only undermine and destroy it.

There are internationally accepted limitations on the exercise of many

human rights for ensuring the requirements of maintaining public order in a
democratic society. These limitations, where they exist, are specified in the texts of
the various human rights treaties. In general, such limitations and restrictions are
those which are determined by law and are necessary:

• To ensure respect for the rights and freedoms of others; and

• To meet the just requirements of morality, public order and general welfare
in a democratic society.

It is therefore the duty of all citizens to respect the rights of others and to
observe the lawful and necessary requirements of maintaining public order in a
democratic society.

Doesn’t concern for human rights hinder effective police work?

It does not.

We have all heard the argument that respect for human rights is somehow
opposed to effective law enforcement, that in order to enforce the law, to capture
the criminal and to secure his or her conviction, it is necessary to “bend the rules”
a little. We have all seen the tendency to use overwhelming force in controlling
demonstrations, physical pressure to extract information from detainees or
excessive force to secure an arrest. According to this way of thinking, law
enforcement is a war against crime and human rights are merely obstacles thrown
in the path of the police by lawyers and NGOs.

In fact, violations of human rights by police only make the already

challenging task of law enforcement more difficult. When the law enforcer
becomes the lawbreaker, the result is an assault on human dignity, on the law itself
and on all institutions of public authority. The effects of police human rights
violations are manifold:

 They erode public confidence;

 They hamper effective prosecutions in court;
 They isolate the police from the community;
 They result in the guilty going free and the innocent being punished;
 They leave the victim of crime without justice for his or her suffering;
 They force police agencies to be reactive rather than preventive in their
approach to crime;
 They bring agents and institutions of public authority into disrepute; and
 They exacerbate civil unrest.

How can respecting human rights help the police?

Respect for human rights by law enforcement agencies enhances their

effectiveness. Where human rights are systematically respected, police officers
have developed professionalism in their approaches to solving and preventing
crime and maintaining public order. In this sense, respect for human rights by police
is, in addition to being a moral, legal and ethical imperative, a practical requirement
for law enforcement. When police are seen to respect, uphold and defend human
rights:

• Public confidence is built and community cooperation fostered;

• Legal prosecutions are successful in court;
• Police are seen as part of the community, performing a valuable social
function;
• The fair administration of justice and hence confidence in the system is
served;
• An example is set for respect for the law by others in society;
• Police are able to be closer to the community and therefore in a position to
prevent and solve crimes through proactive policing;
• Support is elicited from the media, from the international community and
from higher authorities; and
• A contribution is made to the peaceful resolution of conflicts and complaints.

An effective police service is one that serves as the first line of defense in the
protection of human rights. Its members carry out their work in a way that does
not rely on fear and raw power, but instead on regard for the law, honor and
professionalism.

BASIC STANDARD 1
Everyone is entitled to equal protection of the law, without discrimination on any
grounds, and especially against violence or threat. Be especially vigilant to protect
potentially vulnerable groups such as children, the elderly, women, refugees,
displaced persons and members of minority groups.

For the implementation of Basic Standard 1, it is of great importance that

police officers always fulfil the duty imposed on them by law, by serving the
community and protecting all persons against illegal acts, consistent with the high
degree of responsibility required by their profession. They must promote and
protect human dignity and maintain and uphold the human rights of all persons,
among which are the following:
• Everyone has the right to liberty and security of the person
• No one should be subjected to arbitrary arrest, detention or exile
• All persons deprived of their liberty have the right not to suffer torture or
cruel, inhuman or degrading treatment
• Everyone is entitled without any discrimination to equal protection of the
law
• Everyone has the right to a fair trial
• Everyone has the right to freedom of movement
• Everyone has the right to peaceful assembly
• Everyone has the right to freedom of expression

No law enforcement official may inflict, instigate or tolerate any act of

torture or other cruel, inhuman or degrading treatment or punishment, nor may
they invoke superior orders or exceptional circumstances such as a state of war or
threat of war, or political instability or other public emergency as a justification for
such acts. Special attention should be given to the protection of human rights of
members of potentially vulnerable groups, such as children, the elderly, women,
refugees, displaced persons and members of minority groups.

What internationally recognized standards are involved here?

• All human beings are born free and equal in dignity and rights.
• Human rights derive from the inherent dignity of the human person.
• Law enforcement officials shall at all times fulfil the duty imposed on them
by law, by serving the community and by protecting all persons against illegal
acts.
• Law enforcement officials shall respect and protect human dignity and
maintain and uphold the human rights of all persons.
• All persons are equal before the law, and are entitled, without
discrimination, to equal protection of the law.
• In protecting and serving the community, police shall not unlawfully
discriminate on the basis of race, gender, religion, language, color, political
opinion, national origin, property, birth or other status.
• It shall not be considered unlawfully discriminatory for the police to enforce
certain special measures designed to address the special status and needs of
 women (including pregnant women and new mothers), juveniles, the sick,
the elderly and others requiring special treatment in accordance with
international human rights standards.
• The recruitment, hiring, assignment and promotions policies of police
agencies shall be free from any form of unlawful discrimination.

What provisions of our domestic law are applicable?

1987 Constitution

Article III, Section 1

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

The term “person” includes both citizens and aliens, natural and juridical. It
may not encompass, however, the fetus, or the unborn child. As for life, liberty and
property, while all are protected, the extent of the care and importance they get
are not the same – some things are simply worth much more than others.

What is equal protection?

The guarantee of equal protection means that “no person or class of persons
shall be deprived of the same protection of the laws which is enjoyed by other
persons or other classes in the same place and in like circumstances.” It means that
“all persons or things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed.”

The guarantee, however, does not provide absolute equality of rights or

indiscriminate operation on persons. Persons or things that are differently situated
may thus be treated differently. Equality only applies among equals. What is
prohibited by the guarantee is the discriminatory legislation which treats
differently or favors others when both are similarly situated.

What is the purpose of equal protection?

The purpose of the guarantee is to prohibit hostile discrimination or undue

favor to anyone, or giving special privilege when it is not reasonable or justified. It
exists to prevent undue favor or privilege. It is intended to eliminate discrimination
and oppression based on inequality.

Do all classifications violate the guarantee?

No. Well established is the rule that reasonable classification does not violate
the guarantee, provided that the classification has the following requisites:
(a) It must be based upon substantial distinctions;
 (b) It must be germane to the purpose of the law;
(c) It must not be limited to existing conditions only; and
(d) It must apply equally to all members of the class.

Recognizing the existence of real differences among men, the equal

protection clause does not demand absolute equality. It merely requires that all
persons shall be treated alike, under like circumstances and conditions both as to
the privileges conferred and liabilities enforced. Thus, the equal protection clause
does not absolutely forbid classifications, such as the one which exists in the instant
case.

Article III, Section 12

xxx

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

(3) Any confession or admission obtained in violation of this or Section 17 (self-

incrimination) hereof shall be inadmissible in evidence against him.

(4) The law shall provide for penal and civil sanctions for violations of this section
as well as compensation to and rehabilitation of victims of torture or similar
practices and their families.

Revised Penal Code

Republic Act No. 9745 ("Anti-Torture Act of 2009")

"Torture" refers to an act by which severe pain or suffering, whether physical or

mental, is intentionally inflicted on a person for such purposes as obtaining from
him/her or a third person information or a confession; punishing him/her for an act
he/she or a third person has committed or is suspected of having committed; or
intimidating or coercing him/her or a third person; or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a person in authority or agent
of a person in authority. It does not include pain or Buffering arising only from,
inherent in or incidental to lawful sanctions.

"Other cruel, inhuman and degrading treatment or punishment" refers to a

deliberate and aggravated treatment or punishment not enumerated under
Section 4 of this Act, inflicted by a person in authority or agent of a person in
authority against a person under his/her custody, which attains a level of severity
causing suffering, gross humiliation or debasement to the latter.
Section 4. Acts of Torture. - For purposes of this Act, torture shall include, but not
be limited to, the following:

(a) Physical torture is a form of treatment or punishment inflicted by a person in

authority or agent of a person in authority upon another in his/her custody that
causes severe pain, exhaustion, disability or dysfunction of one or more parts of
the body.

(b) "Mental/Psychological Torture" refers to acts committed by a person in

authority or agent of a person in authority which are calculated to affect or confuse
the mind and/or undermine a person's dignity and morale.

Section 8. Applicability of the Exclusionary Rule; Exception. - Any confession,

admission or statement obtained as a result of torture shall be inadmissible in
evidence in any proceedings, except if the same is used as evidence against a
person or persons accused of committing torture.

Section 9. Institutional Protection of Torture Victims and Other Persons Involved. -

A victim of torture shall have the following rights in the institution of a criminal
complaint for torture:

(a) To have a prompt and an impartial investigation by the CHR and by agencies of
government concerned such as the Department of Justice (DOJ), the Public
Attorney's Office (PAO), the PNP, the National Bureau of Investigation (NBI) and
the AFP. A prompt investigation shall mean a maximum period of sixty (60) working
days from the time a complaint for torture is filed within which an investigation
report and/or resolution shall be completed and made available. An appeal
whenever available shall be resolved within the same period prescribed herein,

(b) To have sufficient government protection against all forms of harassment;

threat and/or intimidation as a consequence of the filing of said complaint or the
presentation of evidence therefor. In which case, the State through its appropriate
agencies shall afford security in order to ensure his/her safety and all other persons
involved in the investigation and prosecution such as, but not limited to, his/her
lawyer, witnesses and relatives; and

(c) To be accorded sufficient protection in the manner by which he/she testifies and
presents evidence in any fora in order to avoid further trauma.

Section 13. Who are Criminally Liable. - Any person who actually participated Or
induced another in the commission of torture or other cruel, inhuman and
degrading treatment or punishment or who cooperated in the execution of the act
of torture or other cruel, inhuman and degrading treatment or punishment by
previous or simultaneous acts shall be liable as principal x x x
Any superior military, police or law enforcement officer or senior government
official who issued an order to any lower ranking personnel to commit torture for
whatever purpose shall be held equally liable as principals. The immediate
commanding officer of the unit concerned of the AFP or the immediate senior
public official of the PNP and other law enforcement agencies shall be held liable
as a principal to the crime of torture or other cruel or inhuman and degrading
treatment or punishment for any act or omission, or negligence committed by
him/her that shall have led, assisted, abetted or allowed, whether directly or
indirectly, the commission thereof by his/her subordinates.

BASIC STANDARD 2

Treat all victims of crime with compassion and respect, and in particular, protect
their safety and privacy.

Who are victims?

Victims are people who have suffered harm, including mental and physical
injury, emotional suffering, economic loss or substantial impairment of their
fundamental rights through acts or omissions that are in violation of criminal law.

Two types of victims:

1. Victims of crime
– Persons who, individually or collectively, have suffered harm, including physical
or mental injury, emotional suffering, economic loss or substantial impairment of
their fundamental rights through acts or omissions that are in violation of criminal
laws operative within the State, including laws proscribing criminal abuse of power.

2. Victims of human rights violations

– Persons who, individually or collectively, have suffered harm, including physical
or mental injury, emotional suffering, economic loss or substantial impairment of
their fundamental rights through acts or omissions that are in violation of
internationally recognized human rights norms.

For the implementation of Basic Standard 2, police officers must:

• Ensure that, if needed, measures are taken to ensure the protection and
safety of victims from intimidation and retaliation
• Inform victims without delay of the availability of health and social services
and other relevant assistance
• Provide without delay specialist care for women who have suffered violence
• Develop investigative techniques that do not further degrade women who
have been victims of violence.
 • Give particular attention to victims who have special needs because of the
nature of the harm inflicted on them or because of factors such as race, color,
gender, sexual orientation, age, language, religion, nationality, political or
other opinion, disability, ethnic or social origin, etc.

Special responsibility of police to protect victims of crime, abuse of power

and human rights violations, to treat them with respect, compassion and care, and
to act with due diligence in providing them with all available redress.

What internationally recognized standards are involved here?

• All victims of crime, abuse of power or human rights violations shall be

treated with compassion and respect.
• Victims shall have access to mechanisms of justice and to prompt redress.
• Redress procedures shall be expeditious, fair, inexpensive and accessible.
• Victims shall be informed of their rights in seeking redress and protection.
• Victims shall be informed of their role in formal proceedings, the scope,
timing and progress of proceedings, and the disposition of their cases.
• Victims shall be allowed to present their views and feelings on all matters
where their personal interests are affected.
• Victims shall receive all necessary legal, material, medical, psychological and
social assistance, and shall be informed of their availability.
• Inconvenience to victims shall be minimized in the handling of their cases.
• The privacy and safety of victims shall be protected.
• Unnecessary delay in the handling of victims’ cases shall be avoided.
• Offenders should, where appropriate, make restitution.
• Governments should make restitution where public officials are at fault.
• Financial compensation should be made available from the offender or, if not
available, from the State.
• Police should be trained in the needs of victims and provided with guidelines
to ensure proper and prompt aid.

What are police officials tasked to do?

• Inform all victims, in clear and understandable language, of available legal,

material, medical, psychological and social assistance, and, if they so desire,
put them directly in contact with such assistance.
• Keep a roster of contacts handy, with all information on available services for
assistance to victims.
• Carefully explain to victims their rights, their role in legal proceedings, the
scope, timing and progress of such proceedings, and the disposition of their
cases.
• Provide transportation to medical services and to the victim’s residence, and
offer to check the security of the premises and to patrol the area.
• Enroll in victim assistance training.
 • Keep records on victims secure and carefully protect their confidentiality.
Inform victims of measures that will be taken to these ends.
• Return any recovered property of the victim as soon as possible after
completing the necessary procedures.

What are command and supervisory officials tasked to do?

• Provide victim assistance training to all officials.

• Establish close cooperative procedures with medical, social, legal and other
victim assistance agencies and programs.
• Establish victim assistance units composed of police officials (male and
female), medical or paramedical professionals, social workers and
counsellors for rapid deployment.
• Establish official victim assistance guidelines, ensuring prompt, proper and
comprehensive attention to the legal, material, medical, psychological and
social assistance needs of victims.
• Review crime records in developing preventive strategies, with a focus on
preventing revictimization.
• Assign designated officers to follow and expedite victims’ cases aimed at
obtaining redress and justice.

BASIC STANDARD 3

Do not use force except when strictly necessary and to the minimum extent
required under the circumstances

The implementation of Basic Standard 3 requires, among other things, that

police officers, in carrying out their duty, should apply non-violent means as far as
possible before resorting to the use of force. They may use force only if other
means remain ineffective or without any promise of achieving the necessary result.

Basic Standard 3 must be implemented in accordance with Basic Standard 4

(use of force in non-violent assemblies) and 5 (use of lethal force). Whenever the
lawful use of force is unavoidable, police officers must:

• Exercise restraint in such use and act in proportion to the seriousness of the
offence and the legitimate objective to be achieved
• Minimize damage and injury, and respect and preserve human life
• Ensure that all possible assistance and medical aid are rendered to any
injured or affected persons at the earliest possible moment
• Ensure that relatives or close friends of the injured or affected person are
notified at the earliest possible moment
• Where injury or death is caused by the use of force by police officers, they
shall report the incident promptly to their superiors, who should ensure that
proper investigations of all such incidents are carried out.
What internationally recognized standards are involved here?

• Everyone has the right to life, security of person, and freedom from torture
and cruel, inhuman or degrading treatment or punishment.
• Non-violent means are to be attempted first.
• Force is to be used only when strictly necessary.
• Force is to be used only for lawful law enforcement purposes.
• No exceptions or excuses shall be allowed for unlawful use of force.
• Use of force shall always be proportional to lawful objectives.
• Restraint is to be exercised in the use of force.
• Damage and injury are to be minimized.
• A range of means for differentiated use of force is to be made available.
• All officers are to be trained in the use of the various means for differentiated
use of force.
• All officers are to be trained in the use of non-violent means.

Police responsibilities:
1. Enforce the law and maintain order
2. Exercise police powers lawfully and effectively

The use of force may violate the most basic of human rights:
1. Respect for the inherent dignity of the human person
2. Rights to life, liberty and security of person

The use of force is therefore to be strictly regulated by law, controlled by

superiors and subject to clear guidelines and basic principles.

What are the accountabilities for the use of force and firearms?

• All incidents of the use of force or firearms shall be followed by reporting and
review by superior officials.
• Superior officials shall be held responsible for the actions of police under
their command if the superior official knew or should have known of abuses
but failed to take concrete action.
• Officials who refuse unlawful superior orders shall be given immunity.
• Officials who commit abuses of these rules shall not be excused on the
grounds that they were following superior orders.

What are permissible circumstances for the use of firearms?

• Firearms are to be used only in extreme circumstances.

• Firearms are to be used only in self-defense or in defense of others against
the imminent threat of death or serious injury.
-or-
To prevent a particularly serious crime that involves a grave threat to life.
-or-
 To arrest or prevent the escape of a person posing such a threat and who is
resisting
efforts to stop the threat.
-and-
In every case, only when less extreme measures are insufficient.
• Intentional lethal use of force and firearms shall be permitted only when
strictly unavoidable in order to protect human life.

What are the procedures for the use of firearms?

• The officer is to identify himself/herself as a police official.

-and-
• The officer is to give a clear warning.
-and-
• The officer is to allow adequate time for the warning to be obeyed.
-but-
• This shall not be required if the delay would result in death or serious injury
to the officer or others.
-or-
• It is clearly pointless or inappropriate in the circumstances to do so.

What should be done after the use of firearms?

• Medical aid is to be rendered to all injured persons.

• The relatives or friends of those affected are to be notified.
• Investigations are to be conducted where requested or required.
• A full and detailed report of the incident is to be provided.

In practice, all police officials should:

• Enroll in training programmes to improve your skills in first aid; self-defense;

the use of defensive equipment; the use of non-lethal instruments; the use
of firearms; crowd behavior; conflict resolution and personal stress
management.
• Acquire and practice the use of shields, defensive vests, helmets and non-
lethal instruments.
• Acquire, practice and use a range of means for the differentiated use of
force, including non-lethal incapacitating weapons.
• Participate in stress counselling activities.
• Carefully store and secure all firearms issued to you.
• Assume that every firearm is loaded.
• Study and employ techniques for persuasion, mediation and negotiation.
• Plan in advance for the gradual progressive use of force, beginning with non-
violent means.
 • Be alert to the physical and mental state of your colleagues and intervene
where necessary to see that they receive appropriate care, counselling or
training.

In practice, command and supervisory officials should:

• Establish and enforce clear standing orders on the use of force and firearms.
• Provide regular training in first aid; self-defense; the use of defensive
equipment; the use of non-lethal weapons; the use of firearms; crowd
behavior; conflict resolution; stress management; persuasion, mediation and
negotiation.
• Acquire and issue defensive equipment, including helmets, shields, bullet-
proof vests, gas masks and bullet-proof vehicles.
• Acquire and issue non-lethal incapacitating and crowd dispersal instruments.
• Acquire the broadest possible range of means for the differentiated use of
force.
• Provide for periodic assessments of officers to gauge on a continuous basis
their mental and physical health and suitability to judge the need for and use
of force and firearms.
• Provide stress counselling for all officers involved in the use of force.
• Establish clear reporting guidelines for every incidence of the use of force
and firearms.
• Strictly regulate the control, storage and issue of firearms, including
procedures for ensuring that officers are accountable for arms and
ammunition issued to them.
• Prohibit the use of weapons and ammunition that cause unwarranted injury,
damage or risk.
• Periodically check to ensure that only officially issued weapons and
ammunition are being carried by officers. Provide for appropriate sanctions
against any officer found in possession of non-official issue materials
(especially such items as fragmentation, hollow-point or dum-dum bullets).
• Develop strategies to reduce the risk of officers being forced to use firearms.

BASIC STANDARD 4

Avoid using force when policing unlawful but nonviolent assemblies. When
dispersing violent assemblies, use force only to the minimum extent necessary.

Everyone is allowed to participate in peaceful assemblies, whether political

or non-political, subject only to very limited restrictions imposed in conformity with
the law and which are necessary in a democratic society to protect such interests
as public order and public health. The police must not interfere with lawful and
peaceful assemblies, otherwise than for the protection of persons participating in
such an assembly or others.

The implementation of Basic Standard 4 involves, among other things:

 • In the policing of assemblies that are unlawful but non-violent, police officers
must avoid the use of force. If force is indispensable, for example to secure
the safety of others, they must restrict such force to the minimum extent
necessary and in compliance with the other provisions in Basic Standard 3
• Firearms shall not be used in the policing of nonviolent assemblies. The use
of firearms is strictly limited to the objectives mentioned in Basic Standard 5
• In the dispersal of violent assemblies police officers may use force only if
other means remain ineffective or without any promise of achieving the
intended result. When using force police officers must comply with the
provisions in Basic Standard 3
• In the dispersal of violent assemblies police officers may use firearms only
when less dangerous means are not practicable and only to the minimum
extent necessary to achieve one of the objectives mentioned in Basic
Standard 5 and in accordance with the provisions in Basic Standard 3 and
Basic Standard 5.

International Covenant on Civil and Political Rights, Article 21

“The right of peaceful assembly shall be recognized. No restrictions may be placed

on the exercise of this right other than those imposed in conformity with the law
and which are necessary in a democratic society in the interests of national security
or public safety, public order, the protection of public health or morals or the
protection of the rights and freedoms of others.”

Within this legal framework, law enforcement officials will be called upon to
handle public assemblies in a way that complies with the principles of legality,
necessity, proportionality and accountability. Any restrictions imposed on
assemblies should be based on provisions of domestic law and should not go
beyond what is necessary to ensure peace and order. Moreover, they should not
disproportionately affect the rights of those involved in the assembly. Respect for
and protection of the right to life, liberty and security of person is of particular
importance in this regard. This includes the duty to protect peaceful assemblies
against violent acts committed by others, e.g. in the course of violent counter-
demonstrations. Furthermore, where assemblies are considered unlawful but are
taking place in a peaceful manner, law enforcement officials should refrain from
actions, e.g. dispersal of the assemblies, if such actions are likely to lead to an
unnecessary escalation of the situation, which may involve a high risk of injury, loss
of life and damage to property.

In any case, communication, negotiation and de-escalation are all methods

that should be given priority in public order situations. For that purpose, law
enforcement officials should be trained in appropriate communication with
organizers and demonstrators, have adequate communication equipment and
know how to use it.
 The right choices in terms of equipment and weapons are equally crucial in
that respect. The physical appearance of law enforcement officials should not be
threatening or otherwise contribute to an atmosphere of hostility. This also applies
to the use of firearms in situations of violence. In most situations their use will not
contribute to re-establishing peace and order but run the risk of worsening an
already chaotic situation. Firearms should therefore not be considered as a tactical
tool for public order situations but remain the exceptional, ultimate resort in
response to individual situations which threaten to cause death or serious injury,
and are to be used only where all other means have failed.

1987 Constitution, Article III, Section 4

No law shall be passed abridging the freedom of speech, of expression, or of the

press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.

Freedom of assembly is the right of the people to meet peaceably for

consultation and discussion of matters of public concern.

BASIC STANDARD 5

Lethal force should not be used except when strictly unavoidable in order to
protect your life or the lives of others

The use of firearms is an extreme measure which must be strictly regulated,

because of the risk of death or serious injury involved. The implementation of Basic
Standard 5 requires, among other things, that police officers must not use firearms
except for the following objectives and only when less extreme means are
insufficient to achieve these objectives:

• In self-defense or in defense of others against the imminent threat of death

or serious injury
• To prevent the perpetration of a particularly serious crime involving grave
threat to life
• To arrest a person presenting such a danger and resisting the police officer’s
authority, or to prevent his or her escape In any event, intentional lethal use
of firearms may only be made when strictly unavoidable in order to protect
life.

Police officers must identify themselves as such and give a clear warning of
their intent to use firearms, with sufficient time for the warning to be observed,
unless to do so would unduly place the officers at risk or would create a risk of
death or serious harm to other persons, or would be clearly inappropriate or
pointless in the circumstances of the incident. Rules and regulations on the use of
firearms by police officers must include guidelines that:
 • Specify the circumstances under which police officers are authorized to carry
firearms and prescribe the types of firearms and ammunition permitted
• Ensure that firearms are used only in appropriate circumstances and in a
manner likely to decrease the risk of unnecessary harm
• Prohibit the use of any firearms or ammunition that cause unnecessary injury
or present an unnecessary risk
• Regulate the control, storage and issuing of firearms and ammunition,
including procedures for ensuring that police officers are accountable for
firearms and ammunition issued to them
• Provide for warnings to be given, if appropriate, when firearms are to be
discharged
• Provide for a system of reporting and investigation whenever police officers
use firearms in the performance of their duty.

Basic Principles on the Use of Force and Firearms by Law Enforcement Officials,
No. 9

“Law enforcement officials shall not use firearms against persons except in self-
defense or defense of others against the imminent threat of death or serious injury,
to prevent the perpetration of a particularly serious crime involving grave threat to
life, to arrest a person presenting such a danger and resisting their authority, or to
prevent his or her escape, and only when less extreme means are insufficient to
achieve these objectives. In any event, intentional lethal use of firearms may only
be made when strictly unavoidable in order to protect life.”

Specific provisions apply to the use of firearms, which have, after all, been
specifically designed to kill. Those provisions cover the following points:

• As a firearm is potentially lethal, its use can – in a logical application of the

principle of proportionality – only be acceptable if the intention is to protect
against the threat of death or serious injury. Domestic legislation, as well as
the established procedures of the law enforcement agency, should be
formulated so as to ensure that firearms are used only as a last resort and in
such situations.
• Law enforcement officials are required to identify themselves as such and to
issue a warning before resorting to the use of firearms, unless such warning
would create too high a risk, be inappropriate or pointless. The addressee
should be given sufficient time to respond to the warning.
• Regulations with regard to the control of weapons and ammunition as well
as clear reporting rules for the use of firearms should ensure full
accountability for any use of firearms by a law enforcement official.
• Education and training of law enforcement officials on the use of firearms
must meet the highest possible standards, enabling them to give appropriate
responses even in stressful and dangerous situations.
 • Responsibility for the lawful and appropriate use of firearms extends to
commanding officers, who have to take all possible precautions to ensure
that firearms are used in accordance with the legal framework and with
utmost consideration of the right to life. This refers to the immediate
operational control of complex situations as well as to the formulation of
appropriate procedures and training instructions. There is no simple
response to the difficult situations faced by law enforcement officials in the
course of their regular duties and operational procedures. Instructions and
training should therefore seek to address the full complexity of the
challenges faced by law enforcement.

A firearm is not an appropriate tool for dispersing a crowd and under no

circumstances should law enforcement officials fire indiscriminately into a crowd.

In public assemblies, the use of force must follow the same principles as in
all other situations. Priority must be given to preventing violence and to allowing
for negotiation, persuasion and de-escalation before resorting to the use of force.
Where an assembly that does not comply with certain domestic provisions remains
entirely peaceful, the use of force should be avoided, albeit without prejudice to
the subsequent prosecution of the organizers and participants for taking part in an
unlawful assembly.

Furthermore, isolated incidents should not lead to a decision to disperse an

otherwise peaceful and lawful assembly. In such situations, the law enforcement
agency should seek to deal with the violent individuals and continue to facilitate
the remainder of the assembly. Protective equipment should be available in order
to restrict the need to resort to the use of force and – where the use of force
becomes unavoidable – appropriate less lethal weapons should allow for a
graduated and proportionate response which minimizes damage and protects
uninvolved people.

BASIC STANDARD 6

Arrest no person unless there are legal grounds to do so, and the arrest is carried
out in accordance with lawful arrest procedures

To make sure that an arrest is lawful and not arbitrary, it is important that
the reasons for the arrest and the powers and identity of arresting officers are
known. Therefore, the implementation of Basic Standard 6 involves, among other
things:

• Arrest or detention shall only be carried out strictly in accordance with the
provisions of the law and by competent officials or persons authorized for
that purpose
• Police or other authorities which arrest a person shall exercise only the
powers granted to them under the law
 • Anyone arrested must be informed at the time of arrest of the reasons for
the arrest
• The time of the arrest, the reasons for the arrest, precise information
identifying the place of custody, and the identity of the law enforcement
officials concerned must be recorded; in addition, the records must be
communicated to the detained person or to his or her lawyer
• Officials carrying out an arrest should identify themselves to the person
arrested and, on demand, to others witnessing the event
• Police officers and other officials who make arrests should wear name tags
or numbers so that they can be clearly identified. Other identifying markings
such as the insignia of soldiers battalions or detachments should also be
visible
• Police and military vehicles should be clearly identified as such. They should
carry number plates at all times.
• A person should not be kept in detention without being given an effective
opportunity to be heard promptly by a judicial or other officer authorized by
law to exercise judicial power, and be entitled to a trial within a reasonable
time, or to release. It should not be the general rule that persons awaiting
trial are detained in custody, but release may be subject to guarantees to
appear for trial.
• All detainees should only be kept in recognized places of detention. Such
places of detention should be visited regularly by qualified and experienced
persons appointed by, and responsible to, a competent authority distinct
from the authority directly in charge of the administration of the place of
detention.

Arrest and detention

The right to liberty and security of person is enshrined in numerous universal

and regional human rights documents and is one of the oldest basic human rights
in existence. Strict procedures need to be followed and fundamental judicial
guarantees must be upheld if States restrict this right. Furthermore, any such
restriction must be subject to judicial control. In this regard it is important to bear
in mind that deprivation of liberty affects the rights of an individual beyond
personal liberty and freedom of movement. The power to arrest and detain a
person therefore needs to be carefully regulated by law and exercised in full
conformity with the applicable international laws and standards.

The power to arrest is usually a discretionary power, according to which law

enforcement officials may arrest a person under certain circumstances. It is only as
an exception that the law establishes an obligation for a law enforcement official
to carry out an arrest. The discretion afforded to law enforcement officials must be
exercised in compliance with the overarching principles governing all law
enforcement actions: legality, necessity, proportionality and accountability.
 Domestic laws usually contain the following grounds for arrest: conviction,
to ensure compliance with court orders or other legal obligations, and to bring a
person before the competent legal authority if he or she is suspected of having
committed an offence. Additional grounds may be established (e.g. to protect
individuals from harming themselves or for deportation purposes). However, such
provisions need to be justified by legitimate public order or security concerns and
may not be discriminatory. The arrest also has to comply with the procedures
established by law, e.g. if an arrest warrant is required before an arrest can be
made.

Where a law enforcement official has established that there might be

grounds for an arrest, the actual need to carry out the arrest still has to be assessed.
Preference must always be given to less restrictive means of achieving the objective
of the law enforcement action. For instance, the timely collection of evidence can
prevent a suspect’s attempt to destroy evidence and withdrawing someone’s
passport can prevent him or her from fleeing the country. The principle of necessity
also governs how, when and where an arrest is carried out, e.g. limiting damage to
the person’s reputation by not carrying out the arrest at his or her workplace or
under full public gaze – provided, of course, that there are suitable alternatives.

The arrest must be proportionate to the objective, i.e. the reason for the
arrest. Proportionality is often already ensured through provisions in domestic law
that allow arrest only for offences of a certain gravity.

Judicial control is necessary to ensure that law enforcement officials are

accountable for any arrest carried out. Law enforcement officials are obliged to
present the arrested person promptly to a judicial authority to determine the
lawfulness of the arrest (habeas corpus). The period allowed is usually established
in domestic legislation (often between 24 or 48 hours) but should in any case not
exceed a few days (CCPR, General Comment No. 8 on ICCPR, Article 9).

Full respect of these governing principles prevents arbitrary arrest. The

prohibition of arbitrary arrest (ICCPR, Article 9(1)) should be interpreted broadly in
the light of the circumstances of the specific case, including aspects such as
injustice, unpredictability, unreasonableness, capriciousness, disproportionality or
discrimination. It is for that reason that the Body of Principles for the Protection of
All Persons under Any Form of Detention or Imprisonment (Body of Principles)
states in its Principle No. 2 that “arrest, detention or imprisonment shall only be
carried out strictly in accordance with the provisions of the law and by competent
officials or persons authorized for that purpose,” thus requiring that those
empowered to arrest a person also have the necessary professional skills to make
an objective and adequate assessment of the situation leading to the correct
choices. When carrying out an arrest, law enforcement officials must respect the
fundamental rights of the arrested person, which includes informing him or her of
the reasons for the arrest and of his or her rights as a result of the arrest, presenting
the person to the judicial authority, ensuring access to legal counsel, notifying the
family, treating the person with humanity, etc.

Where law enforcement officials encounter resistance from the person

whom they are attempting to arrest, they have to decide whether and how to
resort to the use of force or even firearms. The use of firearms, in particular, needs
to be carefully assessed and is only justified if the person to be arrested presents a
danger to the life of others (including that of the law enforcement official; see
BPUFF No. 9). Where the possible damage and harm caused by the use of force
outweigh the legitimate interest of the arrest, law enforcement officials should
refrain from carrying out the arrest.

Such situations often occur unexpectedly and thorough and regular training
of law enforcement officials based on realistic scenarios is required to enable them
to take instantaneous, almost instinctive, decisions in line with those standards. In
case of planned arrests, careful preparation is required, based on sound
intelligence (with regard to the location, possible risks for others, etc.) and with all
possible precautions being taken to protect uninvolved people, the law
enforcement officials themselves and, not least, the person to be arrested.

An arrested person must be interrogated in full compliance with, in

particular, the presumption of innocence, the right not to be compelled to testify
against oneself or to confess guilt, the prohibition of torture or other forms of ill-
treatment.

One safeguard is the proper recording of all relevant details of the

interrogation (duration, intervals, identity of all those present).

Revised Rules on Criminal Procedure, Rule 113

Arrest

Section 1. Definition of arrest. — Arrest is the taking of a person into custody in

order that he may be bound to answer for the commission of an offense. (1)

Section 2. Arrest; how made. — An arrest is made by an actual restraint of a

person to be arrested, or by his submission to the custody of the person making
the arrest.

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
detention. (2a)

Section 3. Duty of arresting officer. — It shall be the duty of the officer executing
the warrant to arrest the accused and to deliver him to the nearest police station
or jail without unnecessary delay. (3a)
Section 4. Execution of warrant. — The head of the office to whom the warrant of
arrest was delivered for execution shall cause the warrant to be executed within
ten (10) days from its receipt. Within ten (10) days after the expiration of the
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 the warrant,
he shall state the reasons therefor. (4a)

Section 7. Method of arrest by officer by virtue of warrant. — When making an

arrest by virtue of a warrant, the officer shall inform the person to be arrested of
the cause of the arrest and of the fact that a warrant has been issued for his arrest,
except when he flees or forcibly resists before the officer has opportunity to so
inform him, or when the giving of such information will imperil the arrest. The
officer need not have the warrant in his possession at the time of the arrest but
after the arrest, if the person arrested so requires, the warrant shall be shown to
him as soon as practicable. (7a)

Section 8. Method of arrest by officer without warrant. — When making an arrest

without a warrant, the officer shall inform the person to be arrested of his authority
and the cause of the arrest, unless the latter is either engaged in the commission
of an offense, is pursued immediately after its commission, has escaped, flees or
forcibly resists before the officer has opportunity so to inform him, or when the
giving of such information will imperil the arrest. (8a)

WARRANTLESS ARRESTS

In warrantless arrests, the general principles are basically the same with
warrantless searches. Meaning, all warrantless arrests are illegal. One can be
subjected to criminal prosecution for doing warrantless arrests. However, there are
also exceptions to make warrantless arrests valid.

As a general rule, arrests may only be done if the arresting officer has a
warrant of arrest. The exceptions are:

1. When in his presence, the person to be arrested has committed, is actually

committing, or is attempting to commit an offense;
2. When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts and circumstances that the
person to be arrested has committed it; and
3. When the person to be arrested is a prisoner who has escaped from penal
establishment or place where he is serving final judgment or temporarily
confined while his case is pending, or has escaped while being transferred
from one confinement to another.

Personal knowledge/Probable cause

Personal knowledge of probable cause can be made up of two:
1. That there were reasonable grounds of suspicion based on actual facts.
Basis:
a. There was a confidential information which led to the arrest of the
accused
b. There was actually a crime that happened
c. There was actually a wounded person, who happened to be the
accused, being treated in the hospital
2. That the police must be acting in good faith when conducting the arrest.
There is always a presumption that the police are performing their duties
regularly.

Republic Act No. 7438

Section 2. Rights of Persons Arrested, Detained or Under Custodial Investigation;

Duties of Public Officers. –

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

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

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

investigating officer, provided that before such report is signed, or 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, elder brothers and sisters, his spouse, the municipal mayor, the
municipal judge, district school supervisor, or priest or minister of the gospel as
chosen by him; otherwise, such extrajudicial confession shall be inadmissible as
evidence in any proceeding.
(e) Any waiver by a person arrested or detained under the provisions of Article 125
of the Revised Penal Code, or under custodial investigation, shall be in writing and
signed by such person in the presence of his counsel; otherwise the waiver shall be
null and void and of no effect.

(f) Any person arrested or detained or under custodial investigation shall be

allowed visits by or conferences with any member of his immediate family, or any
medical doctor or priest or religious minister chosen by him or by any member of
his immediate family or by his counsel, or 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, fiancé
or fiancée, parent or child, brother or sister, grandparent or grandchild, uncle or
aunt, nephew or niece, and guardian or ward.

As used in this Act, "custodial investigation" shall include the practice of issuing an
"invitation" to a person who is investigated in connection with an offense he is
suspected to have committed, without prejudice to the liability of the "inviting"
officer for any violation of law.

Section 4. Penalty Clause. – (a) Any arresting public officer or employee, or any
investigating officer, who fails to inform any person arrested, detained or under
custodial investigation of his right to remain silent and to have competent and
independent counsel preferably of his own choice, shall suffer a fine of Six thousand
pesos (P6,000.00) or a penalty of imprisonment of not less than eight (8) years but
not more than ten (10) years, 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.

The same penalties shall be imposed upon a public officer or employee, or anyone
acting upon orders of such investigating officer or in his place, who fails to provide
a competent and independent counsel to a person arrested, detained or under
custodial investigation for the commission of an offense if the latter cannot afford
the services of his own counsel. x x x

BASIC STANDARD 7

Ensure all detainees have access promptly after arrest to their family and legal
representative and to any necessary medical assistance.

People who have been deprived of their freedom are in a situation of

extreme vulnerability. It is therefore of particular importance to safeguard the
human rights of those who are held in any form of detention or imprisonment.
Ultimately, respect for those rights is also indispensable to their subsequent
rehabilitation.
 People who have been deprived of their freedom may be held in a variety of
places, such as police stations, ordinary prisons or specific remand prisons. Police
stations are usually used for short periods of detention and are not designed to
detain large numbers of people for longer periods. If that nonetheless occurs,
conditions of detention tend to deteriorate quickly, leading to overcrowding, poor
hygiene and lack of water, food and adequate health care. Speedy decisions about
release on bail or transfer to a remand prison can prevent such problems.

There are various kinds of detaining authorities across the world, although
those in charge of a detention facility are usually a special prison service or the
police. However, international standards regarding deprivation of liberty are
applicable whatever the detaining authority. The State is responsible for the well-
being of all those in its custody. That includes responsibility for the whereabouts of
those people and consequently for measures to prevent enforced disappearances.

Detainee: Person deprived of his/her personal liberty pending trial

(unconvicted)

Prisoner: Person deprived of his/her personal liberty as a result of conviction

for an offence (convicted)

How should detainees be treated?

• Presumption of innocence
• Treatment which is humane and respects the inherent dignity of the human
person
• Absolute prohibition of torture and cruel, inhuman or degrading treatment
or punishment
• Prohibition of violence or threats
• Respect for religious and moral beliefs
• Respect for the special status and rights of women
• Respect for the special status and rights of juveniles
• Prohibition on taking advantage of a detainee’s situation to force confession
or self-incrimination
• Requirement that measures for discipline and order be set out in law and
regulations, and
• Limitation of measures for discipline and order to those necessary for safe
custody

What are basic detention facilities?

• Officially recognized places of detention only

• Humane
• Healthy
• Adequate food
 • Adequate water
• Adequate shelter
• Adequate clothing
• Adequate medical services
• Adequate exercise facilities and opportunities
• Adequate items and facilities for personal
• Hygiene

May detainees be visited or contacted?

Yes. Visits and communications may be had from:

• Legal representatives
• Family
• Prison inspectors (national commissions and agencies, icrc, un, others)
• Medical personnel
• A judge
• Religious authorities

Experience worldwide has shown that it is often in the first hours or days of
detention that detainees are at greatest risk of being ill-treated, tortured, made to
“disappear,” or killed. Unconvicted detainees must be presumed innocent and
treated as such. The implementation of Basic Standard 7 requires, among other
things, that:

• Detainees should be promptly told of their rights, including the right to lodge
complaints about their treatment.
• A detainee who does not understand or speak the language used by the
authorities responsible for his or her arrest is entitled to receive information
and have the assistance, free of charge if necessary, of an interpreter in
connection with the legal proceedings subsequent to his or her arrest.
• A detainee who is a foreigner should be promptly informed of his or her right
to communicate with the relevant consular post or diplomatic mission.
• All detained refugees and asylum seekers should be allowed access to the
local representative of the UNHCR and to refugee assistance organizations,
regardless of why they are being detained. If a detainee identifies himself /
herself as a refugee or an asylum seeker, or otherwise indicates their fear at
being returned to their country, it is incumbent on the detaining officials to
facilitate contact with these organizations.
• Police officers or other competent authorities must ensure that all detainees
are fully able in practice to avail themselves of the right to notify family
members or others immediately of their whereabouts. All detainees should
be informed of this right. If they do not have the financial or technical means
to send word to their relatives, the officers must be ready to communicate
the Police officers or other competent authorities must ensure that accurate
information on the arrest, place of detention, transfer and release of
detainees is available promptly in a place where relatives and others
 concerned are not obstructed from obtaining this information, and that they
know or are able to find out where the information can be obtained.
• Relatives and others should be able to visit a detainee as soon as possible
after he or she is taken into custody. Relatives and others should be able to
correspond with the detainee and make further visits regularly to verify the
detainee’s continued wellbeing.
• Every detainee must be informed promptly after arrest of his or her right to
a legal counsel and be helped by the authorities to exercise this right.
Moreover, every detainee must be able to communicate regularly and
confidentially with their lawyer, including having meetings with their lawyer
within sight but not within hearing of a guard or police officer, in order to
help prepare the detainee’s defense and to exercise his or her rights.
• An independent doctor should promptly conduct a proper medical
examination of the detainee after taken into custody in order to ascertain
that the detainee is healthy and not suffering from torture or ill-treatment,
including rape and sexual abuse. Thereafter, medical care and treatment
shall be provided whenever necessary. Every detainee or his or her legal
counsel has the right to request a second medical examination or opinion.
Detainees, even with their consent, must never be subjected to medical or
scientific experimentation which may be detrimental to their health.
• Female detainees should be entitled to medical examination by a female
doctor. They should be provided with all necessary pre-natal and post-natal
care and treatment. Restraints should only be used on pregnant women as a
last resort and should never put the safety of a woman or fetus at risk.
Women should never be restrained during labor.

What internationally recognized standards are involved here?

• Pre-trial detention shall be the exception rather than the rule.

• All persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person.
• Everyone charged with a penal offence shall be presumed innocent until
proved guilty in a fair trial.
• No detainee shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment, or to any form of violence or threats.
• Detained persons shall be held only in officially recognized places of
detention, and their family and legal representatives are to receive full
information.
• Juveniles are to be separated from adults, women from men, and
unconvicted persons from convicted persons.
• Decisions about the duration and legality of detention are to be made by a
judicial or equivalent authority.
• The detainee shall have the right to be informed of the reason for detention
and any charges against him.
 • Detainees have the right to contact with the outside world, to visits from
family members, and to communicate privately and in person with a legal
representative.
• Detainees shall be kept in humane facilities, designed to preserve health, and
shall be provided with adequate food, water, shelter, clothing, medical
services, exercise and items of personal hygiene.
• The religious and moral beliefs of detainees shall be respected.
• Every detainee shall have the right to appear before a judicial authority, and
to have the legality of his detention reviewed.
• The rights and special status of women and juvenile detainees are to be
respected.
• No one shall take advantage of the situation of a detained person to compel
him to confess or to otherwise incriminate himself or another person.
• Measures for discipline and order shall only be those set out in law and
regulations, shall not exceed those necessary for safe custody, and shall not
be inhumane.

Art. 124. Arbitrary detention. — Any public officer or employee who, without legal
grounds, detains a person, shall suffer;
1. The penalty of arresto mayor in its maximum period to prision
correccional in its minimum period, if the detention has not exceeded three
days;

2. The penalty of prision correccional in its medium and maximum periods,

if the detention has continued more than three but not more than fifteen
days;

3. The penalty of prision mayor, if the detention has continued for more
than fifteen days but not more than six months; and

4. That of reclusion temporal, if the detention shall have exceeded six

months.

Art. 125. Delay in the delivery of detained persons to the proper judicial
authorities. — The penalties provided in the next preceding article shall be
imposed upon the public officer or employee who shall detain any person for
some legal ground and shall fail to deliver such person to the proper judicial
authorities within the period of; twelve (12) hours, for crimes or offenses
punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes
or offenses punishable by correctional penalties, or their equivalent and thirty-
six (36) hours, for crimes, or offenses punishable by afflictive or capital penalties,
or their equivalent.

In every case, the person detained shall be informed of the cause of his detention
and shall be allowed upon his request, to communicate and confer at any time
with his attorney or counsel.
Art. 126. Delaying release. — The penalties provided for in Article 124 shall be
imposed upon any public officer or employee who delays for the period of time
specified therein the performance of any judicial or executive order for the
release of a prisoner or detention prisoner, or unduly delays the service of the
notice of such order to said prisoner or the proceedings upon any petition for the
liberation of such person.chanrobles virtual law library

Art. 208. Prosecution of offenses; negligence and tolerance. — The penalty of

prision correccional in its minimum period and suspension shall be imposed upon
any public officer, or officer of the law, who, in dereliction of the duties of his office,
shall maliciously refrain from instituting prosecution for the punishment of
violators of the law, or shall tolerate the commission of offenses.

Art. 235. Maltreatment of prisoners. — The penalty of arresto mayor in its medium
period to prision correccional in its minimum period, in addition to his liability for
the physical injuries or damage caused, shall be imposed upon any public officer or
employee who shall overdo himself in the correction or handling of a prisoner or
detention prisoner under his charge, by the imposition of punishment not
authorized by the regulations, or by inflicting such punishment in a cruel and
humiliating manner.

If the purpose of the maltreatment is to extort a confession, or to obtain some

information from the prisoner, the offender shall be punished by prision
correccional in its minimum period, temporary special disqualification and a fine
not exceeding 500 pesos, in addition to his liability for the physical injuries or
damage caused.

Republic Act No. 9745, Section 12

Right to Physical, Medical and Psychological Examination.

Before and after interrogation, every person arrested, detained or under custodial
investigation shall have the right to he informed of his/her right to demand physical
examination by an independent and competent doctor of his/her own choice. If
such person cannot afford the services of his/her own doctor, he/she shall he
provided by the State with a competent and independent doctor to conduct
physical examination. The State shall endeavor to provide the victim with
psychological evaluation if available under the circumstances. If the person
arrested is a female, she shall be attended to preferably by a female doctor.
Furthermore, any person arrested, detained or under custodial investigation,
including his/her immediate family, shall have the right to immediate access to
proper and adequate medical treatment. The physical examination and/or
psychological evaluation of the victim shall be contained in a medical report, duly
signed by the attending physician, which shall include in detail his/her medical
history and findings, and which shall he attached to the custodial investigation
report. Such report shall be considered a public document. x x x

BASIC STANDARD 8

All detainees must be treated humanely. Do not inflict, instigate or tolerate any
act of torture or ill treatment, in any circumstances, and refuse to obey any order
to do so.

Detainees are inherently vulnerable because they are under the control of
law enforcement officials who therefore have a duty to protect detainees from any
violation of their rights by strictly observing procedures designed to respect the
inherent dignity of the human person. Accurate record-keeping is an essential
element of the proper administration of places of detention. The existence of
official records which are open for consultation helps to protect detainees from ill
treatment including torture. The implementation of Basic Standard 8 requires,
among other things, that:

• No person under any form of detention may be subjected to torture, or to

cruel, inhuman or degrading treatment or punishment, and law enforcement
officers have a right and a duty to disobey orders to carry out such acts. No
law enforcement official may inflict, instigate or tolerate any act of torture
or other cruel, inhuman or degrading treatment or punishment, nor may
they invoke superior orders or exceptional circumstances such as a state of
war or threat of war, or political instability or other public emergency as a
justification for such acts.
• Law enforcement officials should be instructed that rape of women in their
custody constitutes an act of torture that will not be tolerated. Similarly, they
should be instructed that any other forms of sexual abuse may constitute
torture or cruel, inhuman or degrading treatment and that offenders will be
brought to justice.
• The term ‘’cruel, inhuman or degrading treatment or punishment’’ should be
interpreted so as to extend the widest possible protection against abuses,
whether physical or mental, including holding a detainee in conditions which
deprive him or her, even temporarily, of the use of any of his or her natural
senses, such as sight or hearing, of his or her awareness of place or passing
of time. Compliance with the other basic standards for law enforcement are
also essential safeguards against torture and ill treatment.
• A detainee may not be compelled to confess, to otherwise incriminate
himself or herself or to testify against any other person. While being
interrogated, no detainee may be subject to violent threats or methods
which impair his or her capacity of decision or judgement. Female guards
should be present during the interrogation of female detainees and should
be solely responsible for carrying out any body searches of female detainees.
• Children should be detained only as a last resort and for the shortest possible
time. They should be given immediate access to relatives, legal counsel and
 medical assistance and relatives or guardians should be informed
immediately of their whereabouts. Juvenile detainees should be kept
separate from adults and detained in separate institutions. They should be
protected from torture and ill-treatment, including rape and sexual abuse,
whether by officials or other detainees.
• Refugees and asylum seekers detained for noncriminal reasons should never
be detained together with common law prisoners. Conditions and treatment
should be humane, and appropriate to their status as refugees.
• Detainees should be kept separate from imprisoned persons and, if
requested, be kept reasonably near their usual place of residence. All
detainees should if possible wear their own clothing if it is clean and suitable,
sleep singly in separate rooms, be fed properly and be allowed to buy or
receive books, newspapers, writing materials and other means of occupation
as are compatible with the interests of justice.
• Registers of detainees should be kept in all places of detention including
police stations and military bases. The register should consist of a bound
book with numbered pages which cannot be tampered with.

Other measures that can contribute to the proper treatment of detainees

are:

• Police officers and other competent authorities should allow representatives

of the local or national bar and medical associations, as well as local or
national members of parliament, appropriate international bodies and
officials, to visit any police station and facilities, including detention centers,
without restriction for the purpose of inspection.
• These bodies and officials must be able to make unannounced visits
• These bodies and officials must have access to all parts of each place of
detention and all detainees and be able to interview them freely and without
witnesses
• These bodies and officials must be able to make return visits whenever they
wish
• These bodies and officials must be able to make recommendations to the
authorities concerning the treatment of detainees
• The treatment of detainees should conform as a minimum to the standards
laid down in the UN Standard Minimum Rules and the Body of Principles.

International Covenant on Civil and Political Rights, Article 10(1)

“All persons deprived of their liberty shall be treated with humanity and with respect
for the inherent dignity of the human person.”

Humane treatment of detainees includes the prohibition of corporal

punishment and adequate conditions of detention that do not amount to torture,
cruel, inhuman or degrading treatment. In general, the basic conditions of
detention must ensure that a person’s health is not affected merely by being
deprived of liberty. The detention regime should distinguish between different
types of detainees: unconvicted detainees and those awaiting trial are to be
segregated from convicted detainees and subject to a different.

On the basis of the presumption of innocence, unconvicted detainees should

be subject to no more restrictions than are necessary to ensure the purpose of the
detention and to safeguard the security and good order of the place of detention.
For convicted prisoners the detention regime should be in accordance with the
basic concept underlying deprivation of liberty, i.e. to protect society against crime.
This can only be achieved if the period of imprisonment is used to ensure that the
convicted person adopts law-abiding behavior in the future (SMR No. 58). That is
dependent, at least in part, on the prisoner being given fair, humane treatment
during the period in detention.

Disciplinary and punitive measures must follow clear, pre-established rules

and regulations; the measures and their application in the specific situation must
be subject to control and may not be inhumane or degrading. The use of force in
detention facilities should be limited to situations of self-defense, escape and
resistance to lawful orders and is then subject to the general principles governing
the use of force.

Standard Minimum Rules for the Treatment of Prisoners, No. 8(a)

“Men and women shall so far as possible be detained in separate institutions; in an

institution which receives both men and women the whole of the premises allocated
to women shall be entirely separate.”

Women deprived of liberty may not be subjected to discriminatory

treatment; they must be kept separate from male detainees (SMR No. 8) and
supervised by female officials; protection against sexual violence must be ensured.
Juveniles should be detained as a last resort and with specific care for the needs
and vulnerabilities of young persons. Article 40 of the CRC and the Beijing Rules
emphasize the need to respect the basic rights of any person deprived of freedom,
to involve parents and guardians in the process, to detain juveniles separately from
adults, and to promote the juvenile’s overall well-being. Anyone who has been
subjected to unlawful arrest or detention has an enforceable right to
compensation.

BASIC STANDARD 9

Do not carry out, order or cover up extrajudicial executions or ‘’disappearances,’’

and refuse to obey any order to do so

No one should be arbitrarily or indiscriminately deprived of life. An

extrajudicial execution is an unlawful and deliberate killing carried out by, or on the
order of, someone at some level of government, whether national, state or local,
or with their acquiescence. There are several important elements in the concept of
an extrajudicial execution:

• It is deliberate, not accidental

• It violates national laws such as those which prohibit murder, and/or
international standards forbidding the arbitrary deprivation of life. Its
unlawfulness distinguishes an extrajudicial execution from:
- A justifiable killing in self-defense
- A death resulting from the use of force by law enforcement officials
which is nevertheless consistent with international standards
- A killing in an armed conflict situation which is not prohibited by
international humanitarian law in an armed conflict, even if not an
international armed conflict, armed officers and soldiers of the
government, as well as combatants of armed political groups, are
prohibited from carrying out arbitrary and summary executions.

These acts would constitute breaches of Common Article 3 of the Geneva

Conventions (which also prohibits mutilation, torture or cruel, inhuman or
degrading treatment, hostage taking and other gross abuses).

The ‘’disappeared’’ are people who have been taken into custody by agents
of the state, yet whose whereabouts and fate are concealed. It is a grave violation
of human rights to carry out disappearances.

No order or instruction of any public authority, civilian, military or other, may

be invoked to justify an extrajudicial execution or a ‘’disappearance’’. Any person
receiving such an order or instruction has a duty to disobey it. All police officers and
all other law enforcement personnel should be aware of their right and duty to
disobey orders the implementation of which might result in serious human rights
violations.

Since those violations are unlawful, police officers and others must not
participate in them. The need to disobey an unlawful order should be seen as a
duty, taking precedence over the normal duty to obey orders. The duty to disobey
an unlawful order entails the right to disobey it. The right and duty to disobey an
order to participate in ‘’disappearances’’ and extrajudicial killings are incorporated
in the UN Declaration on Disappearances (Article 6) and in the UN Principles on
Extra-Legal, Arbitrary and Summary Executions (Principle 3). The UN Basic
Principles on the Use of Force and Firearms by Law Enforcement Officials protect
the right to disobey by stating that no criminal or disciplinary sanction should be
imposed on law enforcement officials who, in compliance with these Basic
Principles and the UN Code of Conduct for Law Enforcement Officials, refuse to
carry out an order to use force and firearms or who report such use by other
officials.
 To implement Basic Standard 9, it is important that the use of force and
firearms by the police strictly complies with all the provisions in Basic Standard 3,
Basic Standard 4 and Basic Standard 5.

What is an enforced or involuntary disappearance?

It is an arrest, detention, abduction or other deprivation of liberty, by

Government or with its complicity, tolerance or acquiescence, where the
Government fails to disclose the fate or whereabouts of the victim or to confirm
custody.

Enforced disappearance and extrajudicial killings are among the most serious
crimes and when they are committed, ordered or tolerated by State agents, they
undermine the very foundation of the rule of law and of society. Every effort must
be made to ensure the effective prevention of those crimes, which can only be
achieved if the law enforcement agency is fully transparent and accountable.

What are the remedies for enforced disappearances?

Writ of Amparo

A.M. No. 07-9-12-SC or The Rule on the Writ of Amparo was promulgated to
arrest the rampant extralegal killings and enforced disappearances in the country.
Its purpose is to provide an expeditious and effective relief to any person whose
right to life, liberty and security is violated or threatened with violation by an
unlawful act or omission of a public official or employee, or of a private individual
or entity.

Definition of enforced disappearances in Philippine jurisprudence

The Court in that case applied the generally accepted principles of

international law and adopted the International Convention for the Protection of
All Persons from Enforced Disappearances definition of enforced disappearances,
as the arrest, detention, abduction or any other form of deprivation of liberty by
agents of the State or by persons or groups of persons acting with the authorization,
support or acquiescence of the State, followed by a refusal to acknowledge the
deprivation of liberty or by concealment of the fate or whereabouts of the
disappeared person, which place such a person outside the protection of the law.
(Razon, Jr. v. Tagitis, G.R. No. 182498, December 3, 2009)

What are the elements of enforced disappearance (under RA No. 9851)?

a. That there be an arrest, detention, abduction or any form of deprivation of

liberty;
b. That it be carried out by, or with the authorization, support or acquiescence
of, the state or a political organization;
 c. That it be followed by the state or political organizations refusal to
acknowledge or give information on the fate or whereabouts of the person
subject of the amparo petition; and,
d. That the intention for such refusal is to remove subject person from the
protection of the law for a prolonged period of time.

Writ of habeas data

Like the writ of amparo, habeas data was conceived as a response, given the
lack of effective and available remedies, to address the extraordinary rise in the
number of killings and enforced disappearances. Section 1 of the Rule on the Writ
of Habeas Data provides:

Section 1. Habeas Data. The writ of habeas data is a remedy available

to any person whose right to privacy in life, liberty or security is
violated or threatened by an unlawful act or omission of a public
official or employee or of a private individual or entity engaged in the
gathering, collecting or storing of data or information regarding the
person, family, home and correspondence of the aggrieved party.
(emphasis and underscoring supplied)

The habeas data rule, in general, is designed to protect by means of judicial

complaint the image, privacy, honor, information, and freedom of information of
an individual. It is meant to provide a forum to enforce ones right to the truth and
to informational privacy, thus safeguarding the constitutional guarantees of a
person’s right to life, liberty and security against abuse in this age of information
technology.

BASIC STANDARD 10

Report all breaches of these Basic Standards to your senior officer and to the
office of the public prosecutor. Do everything within your power to ensure steps
are taken to investigate these breaches.

All violations of human rights by the police or other law enforcement

personnel, including any breaches of these Basic Standards, should be investigated
fully, promptly and independently, for instance by the office of the public
prosecutor. The main objective of these investigations is to establish the facts and
to bring to justice those responsible:

• Has a violation of human rights or a breach of principles or of national law

been perpetrated? If so, by whom?
• If a public official has committed a crime or breach of regulations, was he or
she acting under orders or with the acquiescence of other officials?
• Has the office of the prosecutor opened a criminal investigation and, if there
is sufficient admissible evidence, sought to prosecute?
Why should these breaches be reported?

Breaches of the law by law enforcement officials have a devastating effect

on law enforcement work and ultimately on society as a whole.

It is all too easy for “the end justifies the means” attitudes to be adopted in
an environment in which serious crimes have been committed and where the
difficulties of working in such an environment contribute to the development of
group ethics and individual sets of standards. The leadership of law enforcement
agencies therefore needs to be aware of the inherent risk of such group ethics
fostering “grey policing” that may not always comply fully with the law.

Commanding officers have to ensure that institutional ethics are formulated,

promulgated and constantly upheld, thus clearly establishing full respect for the
law as the fundamental standard to be met at all times.

What internationally recognized standards are involved here?

• Law enforcement officials shall at all times fulfil the duty imposed on them
by law, by serving the community and by protecting all persons against illegal
acts, consistent with the high degree of responsibility required by their
profession.
• Law enforcement officials shall not commit any act of corruption. They shall
rigorously oppose and combat all such acts.
• Law enforcement officials shall respect and protect human dignity and
maintain and uphold the human rights of all persons.
• Every law enforcement agency shall be representative of and responsive and
accountable to the community as a whole.
• The recruitment, hiring, assignment and promotions policies of police
agencies shall be free from any form of unlawful discrimination.
• Clear, complete and accurate records shall be maintained on investigations,
arrests, detention, the use of force and firearms, victim assistance, and all
matters relating to police activity.
• Training and clear guidelines shall be made available on all aspects of police
activity affecting human rights.
• Police agencies shall make available a range of means for the differentiated
use of force and shall train officers in their use.
• All incidents of the use of force or firearms shall be followed by reporting and
review by superior officials. if the superior knew or should have known of
abuses but failed to take action.
• Officials who refuse unlawful superior orders shall be given immunity.
• Confidential information is to be handled in a secure manner.
• All police candidates shall be of appropriate mental and physical character.
• All police are to be subject to continuous and effective reporting and review
procedures.
 • Police shall develop strategies for law enforcement which are effective,
lawful and respectful of human rights.

What are command and supervisory officials tasked to do under this basic
standard?

• Develop a voluntary ethical code of conduct for law enforcement officials.

• Issue clear and binding standing orders on respect for human rights in all
areas of police work.
• Provide entry-level and continuous in-service training for all officials,
emphasizing the human rights aspects of police work contained in this Guide.
• Develop careful screening processes for new recruits and procedures for
periodic assessment of all officers to determine appropriateness of character
for law enforcement duties.
• Develop community policing strategies.
• Establish and enforce strict guidelines for record-keeping and reporting.
• Establish an accessible mechanism for receipt of complaints by members of
the community, and fully investigate and redress all such complaints.
• Develop a plan to ensure that the composition of the police agency is
representative of the entire community, including fair and non-
discriminatory recruitment and management policies.
• Solicit technical assistance from international and bilateral programs to
develop techniques and technical policing skills and capacities for proper and
effective law enforcement.
• Establish and announce an appropriate range of penalties for police
violations, from suspension, pay docking and termination to criminal
penalties for serious violations.
• Strictly regulate the control, storage and issue of weapons and ammunition.
• Carry out periodic unannounced spot checks on detention facilities, police
stations and sub-stations, and inspect weapons and ammunition carried by
police to ensure they comply with official regulations.
• Establish close cooperative relations with other law enforcement agencies,
judges and prosecutors, medical facilities, social service agencies, emergency
services, the media and community organizations.
• Develop specialized units to professionalize police attention to, for example,
juveniles, victims, crowd situations, women’s detention facilities and border
control.

Sources:

 International Police Standards, 10 Basic Human Rights Standards for Law

Enforcement Officials, Amnesty International, Geneva Centre for the
Democratic Control of Armed Forces (DCAF)
 Human Rights and Law Enforcement, A Trainer’s Guide on Human Rights for
the Police, OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR
HUMAN RIGHTS, UNITED NATIONS, New York and Geneva, 2002

 INTERNATIONAL RULES AND STANDARDS FOR POLICING, International

Committee of the Red Cross, June 2015

 Political Law Bar Reviewer from the lecture notes of Dean Dela Banda, 2014