P.M.R.

Gairanod

Criminal Law 2

Prof. J. Batongbacal

2. CRIMES AGAINST THE FUNDAMENTAL LAWS OF THE STATE - 10 crimes against the fundamental laws of the State in the RPC: ADDEV SS PidIO 1. Arbitrary detention (A124) 2. Delay in the delivery of detained persons to the proper judicial authority (A125) 3. Delaying release (A126) 4. Expulsion (A127) 5. Violation of domicile (A128) 6. Search warrants maliciously obtained or abuse in the service of those legally obtained (A129) 7. Searching domicile without witnesses (A130) 8. Prohibition, interruption and dissolution of peaceful meetings (A131) 9. Interruption of religious worship (A132) 10. Offending religious feelings (A133) -They are called crimes against the fundamental laws of the State because they violate certain provisions of the Bill of Rights (Article III of the 1987 Constitution). - Section 1: Right to personal liberty - Articles 124-126 of the RPC punishes any public ofcer or employee in those cases where an individual is unlawfully deprived of liberty. - Section 6: Right to liberty of abode - Article 127 of the RPC punishes any public ofcer or employee who shall unlawfully expel a person from the Philippines or compel a person to change his residence.

- Section 2: Right to be secure against unreasonable searches and seizures and warrantless arrest - Articles 128-130 of the RPC punishes any public ofcer or employee who violates such rights. - Section 4: Right to freedom of expression, peaceful assemblies and petition the Government for the redress of grievances - Article 131 of the RPC punishes any public ofcer or employee who violates such rights. - Section 5: Right to the free exercise of religion - Articles 132-133 of the RPC punishes any public ofcer or employee who violates such rights.

A. Arbitrary detention
Art. 124. Arbitrary detention. Any public ofcer 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 fteen days; 3. The penalty of prision mayor, if the detention has continued for more than fteen days but not more than six months; and 4. That of reclusion temporal, if the detention shall have exceeded six months. The commission of a crime, or violent insanity or any other ailment requiring the compulsory connement of the patient in 1 of 17 a hospital, shall be considered legal grounds for the detention of any person.

P.M.R. Gairanod

Criminal Law 2

Prof. J. Batongbacal

Rule 112, Sec. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within ten (10) days from the ling of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he nds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was led pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within ve (5) days from notice and the issue must be resolved by the court within thirty (30) days from the ling of the complaint of information. (b) By the Municipal Trial Court. When required pursuant to the second paragraph of section of this Rule, the preliminary investigation of cases falling under the original jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court may be conducted by either the judge or the prosecutor. When conducted by the prosecutor, the procedure for the issuance of a warrant of arrest by the judge shall be governed by paragraph (a) of this section. When the investigation is conducted by the judge himself, he shall follow the procedure provided in section 3 of this Rule. If his ndings and recommendations are afrmed by the provincial or city prosecutor, or by the Ombudsman or his deputy, and the corresponding information is led, he shall issue a warrant of arrest. However, without waiting for the conclusion of the investigation, the judge may issue a warrant of arrest if he nds after an examination in writing and under oath of the complainant and his witnesses in the form of searching questions and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice. (c) When warrant of arrest not necessary. A warrant of arrest shall not issue if the accused is already under detention pursuant to a warrant issued by the municipal trial court in accordance with paragraph (b) of this section, or if the complaint or information was led pursuant to section 7 of this Rule or is for an offense penalized by ne

Rule 113, Sec. 5. Arrest without warrant; when lawful. A peace ofcer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving nal judgment or is temporarily conned while his case is pending, or has escaped while being transferred from one connement to another. In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112.

~ Elements: 1. That the offender is a public ofcer or employee - They must be vested with the authority to detain or order the detention of persons accused of a crime but when they detain the person, they have no legal grounds therefore. Ex. policemen, other agents of the law, judges or mayors - If other public ofcers or a private individual does it, the crime is illegal detention because they are acting in their private capacity. (Article 267/268) - BUT private individuals who conspired with public ofcers in detaining certain policemen are guilty of arbitrary detention.
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Criminal Law 2

Prof. J. Batongbacal

2. That he detains a person - Detention - actual connement of a person in an enclosure or in any manner detaining and depriving him of his liberty - Restraint resulting from fear is a form of detention.

3. That the detention is without legal grounds - A detention of a person is without legal ground when: 1.He has not committed any crime or, at least, there is no reasonable ground for suspicion that he has committed a crime 2.He is not suffering from violent insanity or any other ailment requiring compulsory connement in a hospital. - Legal grounds for the detention of any person: 1.The commission of a crime 2.Violent insanity or any other ailment requiring the compulsory connement of the patient in a hospital.

~ Arrest without warrant is usually the cause of arbitrary detention because a warrant properly issued justies an arrest. - When a peace ofcer or private person may arrest a person without a warrant: 1. When the person to be arrested committed, is committing or is attempting to commit an offense in his presence - Applies even if the offense was only seen being committed at a distance - Applies even if the person only heard the disturbance created then proceeds to the scene where the offense is continuing or has been consummated 2. When an offense has in fact 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 - Personal knowledge of facts based on probable cause - actual belief or reasonable grounds of suspicion - Probable cause - facts and circumstances which could lead a reasonable, discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in in the place sought to be searched 3. When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving nal judgment or temporarily conned while his case is pending, or has escaped while being transferred from one connement to another - Basis: The person was committing a continuous crime--evading the service of his sentence. - There is no reasonable ground for a warrantless arrest if the ofcer only wanted to know whether or not a person has committed a crime.

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Criminal Law 2

Prof. J. Batongbacal

~ Arbitrary detention through imprudence - ex. rearrest without verifying an order of release ~ The law does not x any minimum period of detention. Cases: UMIL V RAMOS July 9, 1990 Per curiam Facts: - Eight petitions for habeas corpus, with respondents asserting that the petitioners have been legally arrested and are detained by virtue of valid informations led in court. Umil v Ramos - February 1, 1988, the Regional Intelligence Operations Unit of the Capital Command received condential information about a member of the NPA Sparrow Unit (liquidation squad) being treated for a gunshot wound at the St. Agnes Hospital in Roosevelt Ave., Quezon City. The wounded person listed as Ronnie Javelon in hospital records is actually Rolando Dural, a member of the NPA SU responsible for killing 2 CAPCOM soldiers the day before in Bagong Barrio, Caloocan City. -He was transferred to the Regional Medical Services of CAPCOM for security reasons, was positively identied by witnesses as the gunman who went atop the hood of the CAPCOM mobile patrol car and red at the 2 CAPCOM soldiers in the car (Pabon and Manligot). - An information was led with the RTC of Caloocan charging him with the crime of "double murder with assault upon agents of persons in authority" Ruling: Rationale: - Criminal charges have been led in the proper courts against the petitioners. - The rule is, that if a person alleged to be restrained of his liberty is in custody of an ofcer under process issued by a court or judge with jurisdiction, or if the person is charged before any court, the writ of habeas corpus will not be allowed. --> afrmed by Section 4, Rule 102 of the Rules of Court - On petitioners' plea for the Court to abandon its pronouncement in Ilagan v. Enrile that a writ of habeas corpus is no longer available after an information is led against the person detained and a warrant of arrest or an order of commitment is issued by the court where the information is led: - Their main arguments: The ruling was handed down during a dictatorial regime and has no place under the present democratic dispensation. The doctrine makes possible the arrest and detention of innocent persons despite lack of evidence against them and, often, military authorities le the information in court only after a petition for the habeas corpus is led. - No compelling reason to abandon the doctrine: - Re-appraisal is not the answer. The answer would be : In all petitions for habeas corpus, the court must inquire into every phase and aspect of petitioner's detention--from the moment petitioner was taken into custody up to the moment the court passes upon the merits of the petition to satisfy the due process clause.**

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PEOPLE v BURGOS September 4, 1986 J. Guttierez, Jr.

Criminal Law 2

Prof. J. Batongbacal

Facts: - Appeal from a decision of the RTC of Davao del Sur convicting Ruben Burgos of illegal possession of rearms in furtherance of subversion - May 13, 1982 in the afternoon, Digos: Burgos, with intent to possess and without a license, was in possession of 1 homemade revolver, a caliber .38 Smith and Wesson. It was issued to hi, by one Alias Commander Pol for the NPA. Supposedly, Burgos used it in the performance of subversive tasks such as the recruitment of new members and collection of contributions from present members. - Cesar Masamlok told authorities that at 9 AM on May 12, Ruben Burgos forcibly recruited him as an NPA member with the use of the rearm and was asked to contribute one chopa of rice and one peso a month. - The next day, 15 PC-INP members were dispatched to arrest Ruben Burgos and questioned about his rearm. He initially denied possession of the rearm but his wife pointed to a place below their house where a gun was buried in the ground. Burgos then pointed to the authorities subversive documents he kept in a stock pile of cogon three meters from his house. - To prove Burgos' subversive activities, Masamlok, a former NPA convert, declared that on March 7, 1972, Burgos, accompanied by Landrino Burgos, Oscar Gomez and Antonio Burgos went to his house at 5PM to ask for rice and a 1PhP contribution. Otherwise, they would kill his family if he didn't comply as well as attend a seminar scheduled on April 19. He identied the gun that Burgos pulled out from his waistline as the one the authorities recovered. - On April 19, Masamlok, with his father and two others, went to Burgos' house to attend the seminar. The rst speaker was Burgos who said distinctly that he was in the NPA, he was encouraged all present to overthrow the government and threatened them not to report to the authorities. - Assistant Provincial Fiscal Panlo Lovitos was presented to prove that on May 19, 1982, he administered the subscription of the extra-judicial confession of Burgos who appeared voluntarily in his ofce. When Lovitos realized that he had no lawyer, he requested the services of Atty. Anyog to assist Burgos. Anyog assisted Burgos in reading his confession from English to Bisaya. Lovitos explained his constitutional rights to him. Burgos signed the confession without the presence of military authorities who were sent outside the cubicle of Lovitos. Tp prove illegal possession, Sgt. Comabig presented the lists of rearm holders in Davao del Sur and the lists of license applicants and testied that Burgos wasn't in those lists. - Burgos' version of events: Military personnel he couldn't recognize brought hi, from his farm to the PC barracks in Digos and they arrived there at 3PM. At 8 PM, he was questioned soldiers wearing civilian attire. He denied ownership of the rearm but he was mauled and hit till he was unconscious. After he recovered consciousness, he still refused to admit to owning the rearm so he was tortured. His eyes were covered with wet black cloth. He was undressed, pungent water was poured on his body, making his body irritating with pain. These things were done to him repeatedly from May 13-14. On May 15, he was told that if he still refused to accept ownership of the fun, he will be salvaged. So he admitted to owning the gun. He was then made to sign the afdavit for the prosecution.

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Criminal Law 2

Prof. J. Batongbacal

- To support his denial of involvement in subversive activities, Honorata Arellano appeared in court to say that items in the extra-judicial confession stating that on April 28, NPA members were in her house for treatment were not true. The Barangay Captain of Tiguman appeared as well and declared that he was not personally aware of any subversive activities on the part of the accused and could attest to his good character. He said that a lot of arrests were made in his barrio but none were formally charged because they took their oath of allegiance with the government publicly. - Burgos' wife, Urbana, testied that the rearm in their house was left by Masamlok and one Pedipol, saying that they will claim it at a later date. They buried it. Burgos wasn't home at the time and she did not inform him or the authorities of the rearm out of fear. - Burgos contends that: 1.His warrantless arrest was not lawful. 2.The authorities' warrantless search of his house was not lawful 3.He is not guilty. Ruling: Judgment reversed. Rationale: - We cannot liberally construe the rule on arrests without warrant or extend its application beyond the cases specically provided by law. To do so would infringe upon personal liberty and set back a basic right so often violated and deserving of full protection. Trial court erred. - TC: The arrest could be made without a warrant, as in Rule 113, Section 6's exceptions, because the authorities received an urgent report of Burgos' involvement from a reliable source. If the arrest is valid, the consequent search and seizure are too and would be incident to the lawful arrest = WRONG - Under Section 6(a), the ofcer arresting a person who has just committed, is committing or is about to commit an offense must have personal knowledge of that fact. The offense also but be committed in his presence or within his view. NO personal knowledge in this case! - Basis was Masamlok's testimony! Firearm was pointed out to them by Burgos' wife! - At the time of his arrest, Burgos wasn't in possession of a rearm or any subversive document or committing any subversive act. He was plowing his eld! - SG erred too: The arrest is still lawful under Section 6(b) using the test of reasonableness. The information given by Masamlok was sufcient to induce reasonable ground that a crime has been committed and that the accused is guilty. - Under Section 6(b) however, it is enough that there is reasonable ground to believe that the person committed a crime. A crime must in fact or actually have been committed rst. The fact of the commission of the crime must be undisputed. - The test of reasonable ground applies only to the identity of the perpetrator. - In this case, Burgos was arrested on the verbal report of Masamlok who led authorities to believe Burgos had committed a crime. Police was still shing for evidence. IF AN ARREST WITHOUT WARRANT IS UNLAWFUL AT THE MOMENT IT IS MADE, GENERALLY NOTHING THAT HAPPENED OR IS DISCOVERED AFTERWARDS CAN MAKE IT LAWFUL, even if they did nd a rearm.

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Criminal Law 2

Prof. J. Batongbacal

- There is no compelling reason for the haste with which the ofcers arrested Burgos. - No reason why they didn't obtain a warrant rst, if they had reasonable ground to believe he committed a crime. - He wasn't on the verge of ight or escape. Neither was there showing that his whereabouts were unknown. - The arrest, being unlawful, the search and seizure afterwards could not be deemed legal as being mere incidents to a valid arrest. The questioned rearm and the subversive documents were obtained in violation of Burgos' constitutional rights against unreasonable searches and seizures, so they're inadmissible as evidence. - It cannot be presumed that there was a waiver or that consent was given because there was no objection. To constitute a waiver, it must appear that: 1.The right exists. 2.The person had knowledge, actual or constructive, of that right. 3.The person had actual intention to relinquish the right. - Rule: Courts indulge every reasonable presumption against waiver of fundamental constitutional rights not presume acquiescence in the loss of fundamental rights. - The accused was not informed of any of his constitutional rights at the time of his arrest, according to the records. - When Burgos allegedly admitted ownership of the gun and pointed to the location of the subversive documents after questioning, the admissions were obtained in violation of the constitutional right to self-incrimination. - Remember: He was never apprised of his rights. - He was not accorded his constitutional right to be assisted by counsel during the custodial interrogation. Securing the assistance of Atty. Anyog was too late already. -Only evidence left is Masamlok's testimony which is inadequate to convict Burgos. SC is not bound by the credibility trial courts attach to a particular witness. - His testimony was uncorroborated. Trade-off: no subversion charges MILO v SALANGA July 20, 1987 J. Gayangco Facts: -October 12, 1972: An information for arbitrary detention was led against Juan Tuvera, Sr., Tomas Mendoza and Rodolfo Mangsat in the CFI of Pangasinan. - On April 4, 1973, at 10 PM, in Manaoag, Pangasinan, Juan Tuvera, Sr., a barrio captain, together with some private persons, maltreated Armando Valdez by hitting him with the butts of their guns and punching him. Immediately thereafter, Valdez was detained for eleven hours in the municipal jail, as Tuvera Sr. conspired with members of the police force. - April 4, 19873: Tuvera Sr. led a motion to quash the information and Judge Salanga granted the motion upon discovering that Tuvera Sr. isn't a public ofcer. Tuvera contended that the facts in the information do not constitute the elements of arbitrary detention as he isn't one of the public ofcers contemplated by the law.

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Ruling:

Criminal Law 2

Prof. J. Batongbacal

Rationale: - Barrio captains are persons in authority. - Long before PD 299 was signed into law, barrio lieutenants, later named barrio captains and now barangay captains, were recognized as persons in authority. - US v Braganza: Martin Salibio, a barrio lieutenant, and Hilario Braganza, a municipal councilor, were convicted of arbitrary detention for arresting Father Feliciano Gomez who did not commit any crime. - US v Gellada: Geronimo Gellada, a barrio lieutenant, bound and tied his houseboy with a rope then delivered him to a justice of the peace. As the houseboy committed no crime, Gellada was convicted of arbitrary detention. - RA 3590 or The Revised Barrio Charter: The powers and duties of a barrio captain were to include looking after the order situation in the barrior in assistance of the municipal mayor. - Prof. Jose Aruego on Barrio Government Law and Administration: Barrio captain may subject people to the full force of law as he is a person in authority. Thus, he may arrest and detain persons within legal limits.

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Criminal Law 2

Prof. J. Batongbacal

B. Delay in the delivery of detained persons

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 ofcer 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 afictive 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. (As amended by E.O. Nos. 59 and 272, Nov. 7, 1986 and July 25, 1987, respectively).

Executive Order (s1987) No. 272 FURTHER AMENDING ARTICLE 125 OF THE REVISED PENAL CODE, AS AMENDED WHEREAS, in the interest of public safety and order, it is imperative that a reasonable and sufcient period be given within which to conduct adequate and thorough investigation of persons detained for some legal grounds. NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, do hereby order: Section 1. Article one hundred twenty-ve of Act Numbered Three Thousand Eight Hundred Fifteen (Act No. 3815) otherwise known as the Revised Penal Code, as amended, is hereby further amended to read as follows: 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 ofcer 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 afictive 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. Sec. 2. All laws, orders, issuances, rules and regulations or parts thereof inconsistent with this Executive Order are hereby repealed or modied accordingly. Sec. 3. This Executive Order shall take effect thirty (30) days following its publication in the Ofcial Gazette. DONE in the City of Manila, this 25th day of July, in the year of Our Lord, nineteen hundred and eighty-seven.

Rule 112, Sec. 7. When accused lawfully arrested without warrant. When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or information may be led by a prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing rules. In the absence or unavailability of an inquest prosecutor, the complaint may be led by the offended party or a peace ofcer directly with the proper court on the basis of the afdavit of the offended party or arresting ofcer or person. Before the complaint or information is led, the person arrested may ask for a preliminary investigation in accordance with this Rule, but he must sign a waiver of the provision of Article 125 of the Revised Penal Code, as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fteen (15) days from its inception. After the ling of the complaint or information in court without a preliminary investigation, the accused may, within ve (5) days from the time he learns of its ling, ask for a preliminary investigation with the same right to adduce evidence in his defense as provided in this Rule.

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Criminal Law 2

Prof. J. Batongbacal

Republic Act No. 7438 AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES OF THE ARRESTING, DETAINING AND INVESTIGATING OFFICERS, AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: Section 1. Statement of Policy. It is the policy of the Senate to value the dignity of every human being and guarantee full respect for human rights. Sec. 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Ofcers. (a) Any person arrested detained or under custodial investigation shall at all times be assisted by counsel. (b) Any public ofcer 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 ofcer. (c) The custodial investigation report shall be reduced to writing by the investigating ofcer, 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 ofcer 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 Ofce of the President. The person's "immediate family" shall include his or her spouse, anc or ance, 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" ofcer for any violation of law. Section 3. Assisting Counsel. Assisting counsel is any lawyer, except those directly affected by the case, those charged with conducting preliminary investigation or those charged with the prosecution of crimes. The assisting counsel other than the government lawyers shall be entitled to the following fees; (a) The amount of One hundred fty pesos (P150.00) if the suspected person is chargeable with light felonies;

(b) The amount of Two hundred fty pesos (P250.00) if the suspected person is chargeable with less grave or grave felonies; (c) The amount of Three hundred fty pesos (P350.00) if the suspected person is chargeable with a capital offense.

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Criminal Law 2

Prof. J. Batongbacal

The fee for the assisting counsel shall be paid by the city or municipality where the custodial investigation is conducted, provided that if the municipality of city cannot pay such fee, the province comprising such municipality or city shall pay the fee: Provided, That the Municipal or City Treasurer must certify that no funds are available to pay the fees of assisting counsel before the province pays said fees. In the absence of any lawyer, no custodial investigation shall be conducted and the suspected person can only be detained by the investigating ofcer in accordance with the provisions of Article 125 of the Revised Penal Code. Sec. 4. Penalty Clause. (a) Any arresting public ofcer or employee, or any investigating ofcer, 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 ne 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 disqualication shall also be imposed upon the investigating ofcer who has been previously convicted of a similar offense. The same penalties shall be imposed upon a public ofcer or employee, or anyone acting upon orders of such investigating ofcer 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. (b) Any person who obstructs, prevents or prohibits any lawyer, any member of the immediate family of a person arrested, detained or under custodial investigation, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, from visiting and conferring privately with him, or from examining and treating him, or from ministering to his spiritual needs, at any hour of the day or, in urgent cases, of the night shall suffer the penalty of imprisonment of not less than four (4) years nor more than six (6) years, and a ne of four thousand pesos (P4,000.00). The provisions of the above Sec. notwithstanding, any security ofcer with custodial responsibility over any detainee or prisoner may undertake such reasonable measures as may be necessary to secure his safety and prevent his escape. Sec. 5. Repealing Clause. Republic Act No. No. 857, as amended, is hereby repealed. Other laws, presidential decrees, executive orders or rules and regulations, or parts thereof inconsistent with the provisions of this Act are repealed or modied accordingly. Sec. 6. Effectivity. This Act shall take effect fteen (15) days following its publication in the Ofcial Gazette or in any daily newspapers of general circulation in the Philippines.

~ Elements: 1.That the offender is a public ofcer or employee - If the offender is a private individual, the crime is illegal detention, but he needs to comply with the requirements in A125 in terms of time periods. 2.That he has detained a person for some legal ground - The detention is legal in the beginning because the person detained was arrested under any of the circumstances where arrest without warrant is authorized by law. The detention becomes illegal after a certain period of time because the person was not delivered to the proper judicial authority. - If detention of a person is not for some legal ground, it will be arbitrary detention. - A 125 does not apply if the arrest is made with a warrant. It applies only if the arrest is made without a warrant, but lawfully. If the arrest is made with a warrant, the arrested person can be detained indenitely until his case is decided by the court or he posts a bail for his temporary release. This is

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Criminal Law 2

Prof. J. Batongbacal

because there is already a complaint or information led against him with the court which issued the order or warrant, so it's unnecessary to bring him to that court. 3. That he fails to deliver the person to the proper judicial authorities within: a. 12 hours, for crimes or offenses punishable by light penalties or their equivalent b. 18 hours, for crimes or offenses punishable by correctional penalties or their equivalent c. 36 hours, for crimes or offenses punishable by afictive or capital penalties or their equivalent - Delivery does not consist in physical delivery but in making an accusation or charge or ling an information against the person arrested with the corresponding court or judge who acquires jurisdiction to issue an order of release or commitment. - Proper judicial authorities - courts of justice or judges of said courts with the judicial power to order temporary detention or connement of a person, do not include scal - Detained person should be released when a judge is not available if the maximum hours of detention has already expired. ~ Considerations in determining the liability of ofcers detaining a person beyond the legal period: 1.The means of communication 2.The hour of arrest 3.Other circumstances such as the time of surrender and the material possibility for the scal to make the investigation and le in time the necessary information ~ A violation of A125 is not considered a ground on which one can predicate a motion to quash the information. It does not affect the legality of connement. At the same time, the illegality of detention is not cured by the ling of the information in court. ~ Remedy where warrant is improperly issued: Set aside the warrant of arrest, discharge the person without enjoining the municipal judge from conducting a preliminary examination and issuing a new warrant of arrest after. ~ Rights of the detained person: 1.He shall be informed of the cause of his detention 2.He shall be allowed, upon his request,to communicate and confer at anytime with his attorney or counsel ~ Reason for A125: To prevent abuse resulting from the connement of a person without informing him of his offense and without permitting him to go on bail. ~ A 125 v A 124: In arbitrary detention, the detention is illegal from the beginning. In A125, the detention is legal in the beginning but the illegality of the detention starts from the expiration of any of the periods of time specied without the detainee being delivered to the proper judicial authority. ~ Detention under RA 9372

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Criminal Law 2

Prof. J. Batongbacal

- Time of delivery for suspected terrorists = not the same as time for detainees in A125. For them, it's three days from arrest. BUT arrest must result from surveillance and examination of bank deposits. - A judge must be notied before a suspected terrorist is detained. The judge can be notied in his home or in his ofce. Duty of the judge: ascertain identity of the police ofcer, inquire about the reasons behind person's arrest, determine whether the person was subjected to torture. The judge shall submit within three days a report if what he had observed when the subject was brought before him.

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Criminal Law 2

Prof. J. Batongbacal

C. Search warrants maliciously obtained

Art. 129. Search warrants maliciously obtained and abuse in the service of those legally obtained. In addition to the liability attaching to the offender for the commission of any other offense, the penalty of arresto mayor in its maximum period to prision correccional in its minimum period and a ne not exceeding P1,000 pesos shall be imposed upon any public ofcer or employee who shall procure a search warrant without just cause, or, having legally procured the same, shall exceed his authority or use unnecessary severity in executing the same.

Rule 126 SEARCH AND SEIZURE Section 1. Search warrant dened. A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace ofcer, commanding him to search for personal property described therein and bring it before the court. Sec. 2. Court where application for search warrant shall be led. An application for search warrant shall be led with the following: (a) Any court within whose territorial jurisdiction a crime was committed. (b) For compelling reasons stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced. However, if the criminal action has already been led, the application shall only be made in the court where the criminal action is pending. Sec. 3. Personal property to be seized. A search warrant may be issued for the search and seizure of personal property: (a) Subject of the offense; (b) Stolen or embezzled and other proceeds, or fruits of the offense; or (c) Used or intended to be used as the means of committing an offense. Sec. 4. Requisites for issuing search warrant. A search warrant shall not issue except upon probable cause in connection with one specic offense to be determined personally by the judge after examination under oath or afrmation of the complainant and the witness he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines. Sec. 5. Examination of complainant; record. The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the afdavits submitted. Sec. 6. Issuance and form of search warrant. If the judge is satised of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules. Sec. 7. Right to break door or window to effect search. The ofcer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant to liberate himself or any person lawfully

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Criminal Law 2

Prof. J. Batongbacal

aiding him when unlawfully detained therein. Sec. 8. Search of house, room, or premises to be made in presence of two witnesses. No search of a house, room, or any other premises shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufcient age and discretion residing in the same locality. Sec. 9. Time of making search. The warrant must direct that it be served in the day time, unless the afdavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night. Sec. 10. Validity of search warrant. A search warrant shall be valid for ten (10) days from its date. Thereafter, it shall be void. Sec. 11. Receipt for the property seized. The ofcer seizing the property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made, or in the absence of such occupant, must, in the presence of at least two witnesses of sufcient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property. Sec. 12. Delivery of property and inventory thereof to court; return and proceedings thereon. (a) The ofcer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly veried under oath. (b) Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made. If the return has been made, the judge shall ascertain whether section 11 of this Rule has been complied with and shall require that the property seized be delivered to him. The judge shall see to it that subsection (a) hereof has been complied with. (c) The return on the search warrant shall be led and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge. A violation of this section shall constitute contempt of court. Sec. 13. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant. Sec. 14. Motion to quash a search warrant or to suppress evidence; where to le. A motion to quash a search warrant and/or to suppress evidence obtained thereby may be led in and acted upon only by the court where the action has been instituted. If no criminal action has been instituted, the motion may be led in and resolved by the court that issued search warrant. However, if such court failed to resolve the motion and a criminal case is subsequently led in another court, the motion shall be resolved by the latter court

~ Acts punishable in connection with search warrants: 1.Procuring a search warrant without just cause - Elements: 1.That the offender is a public ofcer or employee 2.That he procures a search warrant - Search warrant - an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace ofcer, commanding him to search for personal property described therein and bringing it before the court.

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Criminal Law 2

Prof. J. Batongbacal

- A search warrant may be issued for the search and seizure of the following property: 1.Subject of the offense 2.Stolen or embezzled items and other proceeds or fruits of the offense 3.Used or intended to be used items as the means of committing an offense - Requisites for issuing search warrants: Upon probable cause in connection with 1 specic offense to be determined personally by the judge after examination under oath or afrmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines - Probable cause - facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and the object sought in connection with the offense are in the place sought to be searched. - If refused admittance, the ofcer may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant or liberate himself or any person aiding him. - Searches of homes, rooms, etc have to be made in the presence of the lawful occupant, any member of his family or, in their absence, two witnesses of sufcient age and discretion living in the same locality. - Search warrants are valid for ten days from its date. - Ofcers seizing property under warrant must give a detailed receipt for the property to the lawful occupant of the premises or, in his absence, in the presence of two witnesses of legal age and discretion residing in the same locality, leave a receipt in the place where he found the property. 3.That there is no just cause - A search warrant is procured without just cause when it appears on the face of the afdavits led in support of the application or through other evidence that the applicant had every reason to believe that the search warrant sought for was unjustied. - Test of lack of just cause: WON the afdavit led in support of the application for search warrant has been drawn in such a manner that perjury could be charged against the afant. - The oath required must refer to the truth of the facts within the personal knowledge of the applicant for search warrant or his witnesses, not the facts of a "reliable person". 2.Exceeding one's authority or by using unnecessary severity in executing a legally procured search warrant - Elements:
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Criminal Law 2

Prof. J. Batongbacal

1.That the offender is a public ofcer or employee 2.That he has legally procured a search warrant 3.That he exceeds his authority or uses unnecessary severity in executing the same - Example of exceeding authority: Public ofcer seized books, etc having no connection with opium (The search warrant was for opium), even if he believed or suspected that they had some relation with opium. Contraband , however, can be seized without a writ. - Example of using unnecessary severity in executing search warrant: Public ofcer destroys furniture without any justication at all in searching the house.

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