I'm Giancarlo Enrico S. Pozon, a Wushu instructor, investor and Barrister... That's right, Barrister; I graduated from law school and took the Bar Exams, now I'm waiting for the results. I created this blog to make Philippine Law easy to understand for the average person. It's all about free legal advice. There are many law blogs. But the problem is that many of them are written for lawyers and law students. They use words that can't be understood by ordinary people.
Many lawyers, judges and law students consider themselves as superior to most human beings because of their knowledge of the law. It bothers me since the law is supposed to serve society. Since the law is meant to serve society as a whole, it is important that is must be understood by everybody.
This does not mean that we should all become lawyers. It means that although law is a highly specialized profession, the first duty of everybody in this profession is to make the law understandable to all; that's why all these articles are free legal advice.
Like I said, this blog is about law -but it's for the ordinary people, not the lawyers. It's for the ordinary folk so they will know what is good and bad for them, and that making them aware of the law will help us all improve society as a whole. This is free legal advice for everybody!
This is different from preliminary investigation but it serves the same purpose: to protect the rights of a detained person.
Custodial investigation involves any questioning by law enforcement people after a person is taken into custody or deprived of his freedom in any significant manner. That includes "inviting" a person to be investigated in connection of a crime of which he's suspect and without prejudice to the "inviting" officer for any violation of law. If a person is taken into custody and the interrogation/questioning tends to elicit incriminating statements, RA 7438 becomes operative (People vs. Tan, GR 117321, February 11, 1998.) Application of actual force or restraint isn't necessary; intent to arrest is sufficient as well as the intent of the detainee/arrested person to submit while thinking that submission is necessary. It will also apply if the "invitation" is given by the military and the designated interrogation site is a military outpost (Sanchez vs. Demetriou, GR 111771-77, November 9, 1993.)
Once a person has been taken into police custody the rules of RA 7438 are to be applied. The rights of a person under custodial investigation are the following:
1.) To be assisted by counsel (and you can demand it!)
2.) To be informed by the arresting officer, in a language he can understand, of his right to remain silent and to counsel (and if he can't afford one, he'll be provided one)
3.) The custodial investigation report will be null and void if it hasn't been read and explained to him by counsel before he signed (or thumbmarked if he's illiterate) it
4.) Extrajudicial confessions must be put in writing and must be signed by him in the presence of counsel or, if there's a valid waiver, any one of his parents, older siblings, spouse, municipal mayor, municipal judge, district school supervisor or a priest or religious minister chosen by him
5.) The waiver of a person under custodial investigation or detained under Art. 125 of the Revised Penal Code (delay in delivering detained persons to the proper judicial authority) must be put in writing and signed by the detainee in the presence of counsel or it will be null and void
6.) To be visited by, or have conferences with, members of his immediate family, counsel, doctor, priest or religious minister or any national NGO duly accredited by the CHR or international NGO duly accredited by the office of the President
The immediate family includes the following: spouse, parents, children, siblings, grandparents, grandchildren, uncles, aunts, nephews, nieces, guardians, wards and girlfriends and boyfriends.
If the assisting counsel is a private practitioner, he is entitled to the following amounts for his services in the custodial investigation:
1.) Php150 if the crime in question is a light felony
2.) Php250 if it's a grave or less grave felony
3.) Php350 if it's a capital offense
This will be paid by the city or municipal government where the custodial investigation is performed and payable by the province in question if the city/municipality can't pay -and the municipal/city treasurer must certify that there is no money first.
If counsel is absent, a custodial investigation can't proceed and the detainee must be treated in accordance with Art. 125 of the Revised Penal Code.
Penalties
If the arresting officer fails to inform the detainee or arrested person of his rights, he will be sentenced to 8 to 10 years' imprisonment and/or a fine of Php6,000. And if he was previously convicted for a similar offense, he gets perpetual absolute disqualification as well.
The same penalty will also apply if the detainee or arrested person can't afford counsel's services and the arresting officers/authorities don't provide counsel.
Obstructing counsel, immediate family members, doctors, priests or religious ministers from visiting or conferring with the detainee at any time of the day (or night in urgent cases, like when the detainee needs to have the sacrament of anointing the sick administered to him) will be penalized by 4 to 6 years' imprisonment and a fine of Php4,000.
A person under a normal audit investigation is not considered to be under custodial investigation since a COA audit examiner isn't considered an arresting officer under RA 7438 (Navallo vs. Sandiganbayan, 234 SCRA 175.)
1 comments:
Tanong ko lang po... Sa bawat pag huli pala dapat automatic may kaagapay agad na lawyer yong suspek... Kawawa naman ang mga huhuli at masasayang lng ang efforts, buti kung antimano anjan agad ang lawyer.
Post a Comment