RULE 113 and witnesses. (Soliven v Makasiar G.R. Nos.
L82585, L-82827,
ARREST
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. (Section 1 Rule
113)
NOTE: Arrest is the act pf depriving a person of his liberty by legal authority.
How arrest is made (Section 2 Rule 113):
1. By the actual restraint of a person to be arrested; or
2. By his submission to the custody of the person making the arrest.
NOTE: There must be control over the person under custody and as a
consequence, a restraint on his liberty to the extent that he is not free to leave
on his own volition.
Requisites in the issuance of a warrant of arrest;
1. The judge personally evaluate the report and supporting documents
submitted by the prosecutor regarding the existence of probable cause,
and on the basis thereof, issue a warrant of arrest, or;
2. If on the basis thereof, he finds no probable cause, the judge may
disregard the prosecutor’s report and require the submission of
supporting affidavits of witnesses to aid him in arriving at a conclusion
as to the existence of probable cause.
Constitutional Basis
Sec. 2 of Article III (Bill of Rights) of the Constitution:
“…no search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination under oath
or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place be searched and the persons or things to be
seized.”
NOTES:
1. An arrest without probable cause is an unreasonable seizure of a
person and violates the privacy of persons which ought notto be
intruded by the State.
2. The Constitutional provision does not mandatorily require the judge to
personally examine the complainant and his witnesses. Instead, he
may: (a) opt to personally evaluate the report and supporting
documents submitted by the prosecutor; or (b) disregard the
prosecutor’s report and require the submission of supporting affidavits
November14, 1988).
3. In issuing the warrant of arrest, judges merely determine the
probability and not the certainty of guilt of the accused. (Webb v De
Leon 247 SCRA 653).
NO UNNECESSARY VIOLENCE OR FORCE SHOULD BE USED IN THE
ARREST.
An officer may use such degree of force which may be reasonably
necessary to arrest a criminal even to the extent of harming the latter. But he
is not allowed to use violence or unnecessary force to make an arrest.
NOTES:
1. In making the arrest, the arresting officer or person should use
discretion and caution in effecting it.
2. If the offender resists, the officer may employ force when necessary to
secure and detain the offender, prevent is escape, recapture him and
overcome the resistance even to the extent of taking his life, if
necessary.
3. The officer is never justified to use violence or force when no resistance
is offered nor is he justified to use violence or force which is
disproportionate to the degree of resistance offered.
Duty of Arresting Officer (Section 3, Rule 113)
After the accused has been arrested, the arresting officer shall deliver
him to the nearest police station or jail without delay unless there is justifiable
reason.
NOTE: if the arresting officer is delayed in delivering the detained person(s) to
the proper judicial authorities beyond the period provided by law, he will be
liable for violation of Article 125 of the Revised Penal Code.
Execution of Warrant (Section 4 Rule 113)
The warrant of arrest shall be executed within ten (1) days from receipt
by the head office to who it was delivered for execution. After the lapse of the
ten-day period, the concerned officer shall make a report to the issuing judge.
The officer shall explain the reason why the warrant was not executed if the
officer failed to effect the arrest.
NOTE: A warrant of arrest does not become stale or functus officio unlike a
search warrant which is valid only for ten (10) days.
In making the arrest by virtue of a warrant the officer shall:
a. Inform the person to be arrested of the cause of his arrest;
b. Inform him of the fact that a warrant of arrest has been issued.
This information need not be made when the person to be arrested (a) Flees;
(b) Forcibly resists; or (c) The giving of the information will imperil the arrest.
(Section 7 Rule 113)
NOTE: The officer need not have the warrant in his possession at the tie of
arrest. However, after the arrest, the warrant shall be shown to him as soon
as practicable if the person arrested so requires. (Section 7 Rule 113)
Time of making an arrest (Sec 6 Rule 113)
An arrest may be made on any day and at any time of the day.
Rights of a Person Arrested (R.A. 7438)
A. Rights of Person arrested, detained or under custodial investigation:
1. The right to be assisted by counsel at ALL TIMES;
2. The right to remain silent;
3. The right to be informed of the above rights; and
4. The right to be visited by the immediate family members, by his
counsel, or by non-governmental organization, national or
international.
B. The counsel must be one who is independent and competent. The
counsel must be allowed to confer with the person arrested, detained
or under custodial investigation. If such person cannot afford the
services of his own counsel, he must be provided by the investigating
officer with a competent and independent counsel.
C. In the absence of a lawyer, no custodial investigation shall be
conducted and the suspected person can only be detained by te
investigating officer in accordance with the provisions of Article 125 of
the Revised Penal Code.
NOTE: Any waiver of the provisions of Article 125 of the RPC shall be
(a) in writing (b) signed by the person arrested, detained or under
custodial investigation and (c) in the presence of his counsel. Otherwise
the waiver shall be null and bid and of no effect.
D. Any extrajudicial confession made shall be (a) in writing and signed by
the person detained or under custodial investigation (b) in the presence
of his counsel (c) if there is no counsel, upon a valid waiver in the
presence of his parents, older brother or sister, or his spouse,
municipal mayor, the municipal judge, district school supervisor, or
priest or minister of the gospel as chosen by him. Absent these
requisites, such extrajudicial confession hall be inadmissible as evidence
in any proceedings.
CUSTODIAL INVESTIGATION
This involves any questioning by law enforcement people after a person
is taken into custody or deprived of his freedom in any significant manner.
This includes 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.
NOTES:
1. If a person is taken into custody and the interrogation or questioning
tends to elicit incriminating statements, RA 7438 becomes operative.
2. Application of actual force or restraint is not necessary; intent to arrest
is sufficient as well as the intent of the detainee or arrested person to
submit while thinking that submission is necessary.
Penalties for Violation of R.A. 7438
1. If arresting officer fails to inform the arrested person or detainee of his
rights – 8-10 years of imprisonment or a fine or both;
2. If the arresting officer was previously convicted of a similar offense,
aside from the principal penalty, an accessory penalty of perpetual
absolute disqualification is applied;
3. Same penalty is applied if the detainee or arrested person cannot afford
the services of a counsel, and the arresting officer(s) did not provide a
counsel for him;
4. Obstruction of counsel or any immediate family member of a person
arrested, detained or under custodial investigation or those who under
the law is entitled to visit such person – penalty of imprisonment of not
less than 4 years but not more than 6 years and a fine.
Persons not subject to arrest:
1. A Senator or member of the House of Representative in all offenses
punishable by not more than 6 years imprisonment while Congress is
in session;
2. Under generally accepted principles of International Law, sovereigns
and other chiefs of states, ambassadors, ministers plenipotentiary,
ministers resident and charges d’affaires are immune from criminal
jurisdiction of the country and therefor immune from arrest;
3. Duly accredited ambassadors, public ministers of a foreign country,
their duly registered domestics, subject to the principle of reciprocity
(Sec 4 and 7 R.A. 75)