2. (1) Art. 124: Arbitrary Detention
(2) Art. 125: Delay in the Delivery Of Detained Persons to the Proper
Judicial Authorities
(3) Art. 126: Delaying Release
(4) Art. 127: Expulsion
(5) Art. 128: Violation of Domicile
(6) Art.129: Search Warrants Maliciously Obtained and Abuse in the
Service of those Legally Obtained
(7) Art. 130: Searching Domicile Without Witnesses
(8) Art. 131: Prohibition, Interruption and Dissolution of Peaceful
Meetings
(9) Art. 132: Interruption of Religious Worship
(10) Art. 133: Offending the Religious Feelings
3. Crimes under this title are those that violate certain provisions of the
Bill of Rights.
All offenses under this title can only be committed by public officers
except offending the religious feelings
4. The primary offender in ARTICLES 124-132 is a public officer acting
under supposed exercise of official functions, albeit illegally.
A private person may be liable under these articles ONLY WHEN
he:
(1)Conspires with a public officer; OR
(2)He becomes an accomplice or accessory to said crimes
ARTICLE 133 can be committed by EITHER a public officer OR a
private person.
5. ARTICLE 124 - ARBITRARY DETENTION
Elements:
(1)That the offender is a public officer or employee
(2)That he detains a person
(3)That the detention is without a legal ground.
6. The Crime of Arbitrary Detention assumes several
forms:
(1) Detaining a person without legal grounds (Article 124);
(2) Having arrested the offended party for legal grounds but
without warrant of arrest, and the public officer does not deliver
the arrested person to the proper judicial authority within the
period of 12, 18, or 36 hours, as the case may be (Article 125);
or
(3) Delaying release by competent authority with the same period
mentioned in number 2 (Article 126).
7. The detention of a person is without legal ground: (1) when he has not
committed any crime or, at least, there is no reasonable ground for suspicion
that he has committed a crime, or (2) when he is not suffering from violent
insanity or any other ailment requiring compulsory confinement in a hospital.
A public officer is deemed such when he is acting within the bounds of his
official authority or function. A police officer who employs force in excess of
what is necessary is acting outside the bounds of his duties and is considered
acting in his private capacity.[Boado, Comprehensive Reviewer in Criminal Law]
In the crime of arbitrary detention, although the offender is a public officer, not
any public officer can commit this crime. Only those public officers whose
official duties carry with it the authority to make an arrest and detain persons
can be guilty of this crime.
8. In a case decided by the Supreme Court a Barangay Chairman who
unlawfully detains another was held to be guilty of the crime of arbitrary
detention. This is because he is a person in authority vested with jurisdiction
to maintain peace and order within his barangay. [Milo v. Salanga (1987)]
There must be an actual restraint of liberty of the offended party.
The crime committed is only grave or light threats if the offended party may
still go to the place where he wants to go, even though there have been
warnings. If the offender falsely imputes a crime against a person to be able
to arrest him and appear not determined to file a charge against him, the
crime is arbitrary detention through unlawful arrest. [Boado, Comprehensive
Reviewer in Criminal Law]
9. A case where a DENR team was invited to Mayor Astorga’s house
from 5:30pm to 2:30am for dinner and drinks, does not fall under
Arbitrary Detention. Absent any physical restraint, an element of the
said crime is fear. No record on evidence showed that the mayor
instilled fear into the minds of the DENR team while they were in the
Mayor’s house.[Astorga v. People (2004)]
Arrest without warrant is the usual cause of arbitrary detention.
10. ARTICLE 125 - DELAY IN THE DELIVERY OF DETAINED PERSONS
TO THE PROPER JUDICIAL AUTHORITIES
Elements:
(1)Offender is a public officer or employee
(2)He detains a person for some legal ground
(3)He fails to deliver such person to the proper judicial authorities
within –
(a)12 hours for light penalties
(b)18 hours for correctional penalties
(c)36 hours for afflictive or capital penalties
11. This is applicable only when the arrest is without a warrant. But the arrest must
be lawful. At the beginning, the detention is legal since it is in the pursuance of
a lawful arrest. Detention becomes arbitrary when the:
(1)Applicable period lapses
(2)Without the arresting officer filing a formal charge with the proper court.
The periods stated are counted only when the prosecutor’s office is ready to
receive the complaint or information. Nighttime is not included in the period.
“Delivery” means the filing of correct information with the proper court (or
constructive delivery -- turning over the person arrested to the jurisdiction of
the court). The purpose is to determine whether the offense is bailable or not.
(Upon delivery, judge or court acquires jurisdiction to issue an order of release
or of commitment of prisoner.) [Sayo v. Chief of Police (1948)]
12. The elements of custodial investigation are:
(1)The suspect is deprived of liberty in any significant manner;
(2)The interrogation is initiated by law enforcement authorities;
(3)The interrogation is inculpatory in character. [People v. Tan
(1998)]
13. Where the invitation comes from a powerful group composed predominantly of
ranking military officers and the designated interrogation site is a military
camp, the same can be easily taken NOT as a strictly voluntary invitation. It is
an authoritative command that one can only defy at one’s peril. [Sanchez v.
Demetriou (1993)]
Detained person should be released when a judge is not available. [Albior vs.
Aguis (2003)]
Waiver of the provisions of Article 125 Before the complaint or information is
filed, the person arrested may ask for a preliminary investigation in
accordance with Rule 112 of the Revised Rules of Criminal Procedure, but he
must sign a waiver of the provisions of Article 125 of the Revised Penal Code
in the presence of his counsel. Notwithstanding the waiver, he may apply for
bail and the investigation must be terminated within fifteen days from its
inception. (Section 7,par. 2, Rule 112 of the Revised Rules of Criminal
Procedure)
14. ARTICLE 126 - DELAYING RELEASE
Elements:
(1)Offender is a public officer or employee
(2) There is a:
(a) Judicial or executive order for the release of a prisoner or detention
prisoner, OR
(b) A proceeding upon a petition for the liberation of such person
(3) Offender without good reason delays –
(a) The service of the notice of such order to the prisoner
(b) The performance of such judicial or executive order for the release of the
prisoner; OR
(c) The proceedings upon a petition for the release of such person
15. ARTICLE 127 – EXPULSION
Elements:
(1)Offender is a public officer or employee
(2)He either –
(a)Expels any person from the Philippines; OR
(b)Compels a person to change residence
(c)Offender is not authorized to do so by law.
The city mayor of Manila committed the crime of expulsion when he ordered
certain prostitutes to be transferred to Davao WITHOUT observing due
process since they have not been charged with any crime. [Villavicencio v.
Lukban (1919)]
16. The right to return to one’s country is not among the rights specifically
guaranteed in the Bill of Rights, which treats only of the Liberty of Abode
and the right to travel. However, it is a well-settled view that the right to
return may be considered as a generally accepted principle of
international law and, under the Constitution, forms part of the law of the
land. However, it is distinct and separate from the right to travel.
The constitutional guarantees invoked by the Marcoses are neither
absolute nor inflexible for the exercise of such freedoms has limits and
must adjust to the concerns which involve the public interest.[Marcos v.
Manglapus (1989)]
17. ARTICLE 128 - VIOLATION OF DOMICILE
Acts punished:
(1)Entering any dwelling against the will of the owner thereof
(2)Searching papers or other effects found therein without the previous
consent of such owner, OR
(3)Refusing to leave the premises, after having surreptitiously entered said
dwelling and after having been required to leave the same
18. Elements COMMON to the three acts:
(1)Offender is a public officer or employee
(2)He is not authorized by judicial order –
(a)To enter the dwelling;
(b)To make a search therein for papers or other effects; or
(c)He refuses to leave, after having surreptitiously entered such dwelling and
been required to leave the same
Qualifying circumstances:
(1)Night time
(2)Papers or effects not constituting evidence of a crime are not returned
immediately after the search made by the offender.
19. RULE 113 OF THE REVISED RULES OF COURT: a public officer,
who breaks into the premises, incurs no liability WHEN a person to be
arrested enters said premises and closes it thereafter, provided that
the officer first gives a notice of arrest.
The public officer should have first given notice of an
arrest.
20. According to People vs. Doria (1999) and People vs. Elamparo (2000), the
following are the accepted exceptions to the warrant requirement:
(1)Search incidental to an arrest;
(2)Search of moving vehicles;
(3)Evidence in plain view;
(4)Stop and frisk;
(5)Customs searches; AND
(6)Consented warrantless search.
[M]ere suspicion or a hunch will not validate a "stop and frisk."
A genuine reason must exist, in light of the police officer's experience and
surrounding conditions, to warrant the belief that the person detained has
weapons concealed about him.
21. Finally, a "stop-and-frisk" serves a two-fold interest:
(1)The general interest of effective crime prevention and detection, which
underlies the recognition that a police officer may, under appropriate
circumstances and in an appropriate manner, approach a person for
purposes of investigating possible criminal behavior even without
probable cause; and
(2)The more pressing interest of safety and self preservation which permit
the police officer to take steps to assure himself that the person with
whom he deals is not armed with a deadly weapon that could
unexpectedly and fatally be used against the police officer. [Malacat v. CA
(1997)]
22. “Against the will” means that the offender ignored the prohibition of
the owner which may be express or implied as when the door is
closed even though not locked. [Boado, Comprehensive Reviewer in
Criminal Law]
The offender must be a public officer or employee. If the offender is a
private individual then the crime is trespass to dwelling under Article
280.
23. ARTICLE 129 - SEARCH WARRANTS MALICIOUSLY OBTAINED, AND
ABUSE IN THE SERVICE OF THOSE LEGALLY OBTAINED
Elements of procuring a search warrant without just cause:
(1)Offender is a public officer or employee
(2)He procures a search warrant
(3)There is no just cause
Elements of exceeding authority or using unnecessary severity in
executing a search warrant legally procured:
(1)Offender is a public officer or employee
(2)He has legally procured a search warrant
(3)He exceeds his authority or uses unnecessary severity in executing the
same.
24. ARTICLE 130 - SEARCHING DOMICILE WITHOUT WITNESSES
Elements:
(1)Offender is a public officer or employee
(2)He is armed with search warrant legally procured
(3)He searches the domicile, papers or other belongings of any person
(4)The owner, or any members of his family, or two witnesses residing in the
same locality are not present.
25. RULE 116: SEARCH AND SEIZURE
A search warrant is an order in writing -
(1)Signed by a judge
(2)Directed to a peace officer, commanding him to search for personal
property described therein and bring it before the court
Requisites for issuing a search warrant:
(1)Probable cause, in connection with one specific offense, to be
determined personally by the judge AFTER examination under oath or
affirmation of the complainant and the witness he may produce
(2) Particular description of:
(a)Place to be searched; AND
(b)Things to be seized which may be anywhere in the Philippines
26. An officer may break open any outer or inner door or window of a house or
any part of a house or anything therein WHEN these circumstances
concur:
(1)He is refused admittance to the place of directed search;
(2)His purpose is to execute the warrant to liberate himself or any person
lawfully aiding him when unlawfully detained therein; and
(3)He has given notice of his purpose and authority.
27. The warrant must direct that it be served in the daytime. HOWEVER, it
can be served at any time of the day or night WHEN the affidavit asserts
that the property is on the person or in the place ordered to be searched.
A search warrant shall be valid for ten (10) days from its date.
Thereafter, it shall be void.
The officer 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.
28. In the absence of such occupant, the officer must:
(1) leave a receipt in the place in which he found the seized property;
(2) In the presence of at least two witnesses of sufficient age and discretion
residing in the same locality.
29. ARTICLE 131 - PROHIBITION, INTERRUPTION AND DISSOLUTION OF
PEACEFUL MEETINGS
Elements:
(1)Offender is a public officer or employee
(2)He performs any of the following acts:
(a)Prohibiting or interrupting, without legal ground, the holding of a
peaceful meeting, or by dissolving the same
(b)Hindering any person from joining any lawful association, or from
attending any of its meetings
(c)Prohibiting or hindering any person from addressing, either alone or
together with others, any petition to the authorities for the correction of
abuses or redress of grievances
30. The government has a right to require a permit before any gathering can be
made. HOWEVER, the government only has regulatory, NOT
PROHIBITORY, powers with regard to such requirement.
The permit should state the day, time, and place of the gathering.
If the permit is denied arbitrarily, OR the officer dictates the place where the
meeting is to be held, this article is VIOLATED.
If in the course of the assembly, which started out peacefully, the participants
committed illegal acts like oral defamation or inciting to sedition, a public
officer or law enforcer can stop or dissolve the meeting.
31. Two criteria to determine whether this article would be violated:
(1)Dangerous tendency rule – applied during times of national unrest
such as to prevent coup d’etat.
(2)Clear and present danger rule – applied during times of peace. Stricter
rule.
32. ARTICLE 132 - INTERRUPTION OF RELIGIOUS WORSHIP
Elements:
(1)Offender is a public officer or employee
(2)Religious ceremonies or manifestations of any religion are about to take
place or are going on
(3)Offender prevents or disturbs the same
Circumstances qualifying the offense: if the crime is committed with
violence or threats.
33. ARTICLE 133 - OFFENDING THE RELIGIOUS FEELINGS
Elements:
(1)Acts complained of were performed in a place devoted to religious worship,
OR during the celebration of any religious ceremony
(2)The acts must be notoriously offensive to the feelings of the faithful.
In the phrase “in a place devoted to religious worship,” it is not necessary that
there is a religious ceremony going on when the offender performs acts
notoriously offensive to the feelings of the faithful.
The phrase “during the celebration” is separated by the word “or” from the
phrase “place devoted to religious worship,” which indicates that the “religious
ceremony” need not be celebrated in a place of worship. [Reyes (2008)]
34. Jurisprudence:
A Catholic priest complained against a group that passed by the churchyard as
they were holding the funeral rites of a Church of Christ member.
An act is NOTORIOUSLY OFFENSIVE to the religious feelings when a person:
(1)Ridicules or makes light of anything constituting religious dogma
(2)Works or scoffs at anything devoted to religious ceremonies
(3)Plays with or damages or destroys any object of veneration of the faithful
WON an act is offensive to the religious feelings, is a question of fact which
must be adjudged only according to the feelings of the Catholics and not those
of other faithful ones. [People v. Baes (1939)]
35. Laurel Dissent: The determination should NOT be made to depend upon
a more or less broad or narrow conception of any given religion. Facts
and circumstances should be viewed through an unbiased judicial
criterion. (Note: This later became the majority decision in People v.
Tengson)
The crime is only UNJUST VEXATION when the act is NOT directed at
the religious belief itself and there is no intention of causing so serious a
disturbance as to interrupt a religious ceremony. [People v. Nanoy]
36. RA 9372 : HUMAN SECURITY ACT
PERIOD OF DETENTION
SEC. 18. Period of Detention Without Judicial Warrant of Arrest. “ The provisions of
Article 125 of the Revised Penal Code to the contrary notwithstanding, any police or
law enforcement personnel, who, having been duly authorized in writing by the Anti-
Terrorism Council has taken custody of a person charged with or suspected of the
crime of terrorism or the crime of conspiracy to commit terrorism shall, without
incurring any criminal liability for delay in the delivery of detained persons to the
proper judicial authorities, deliver said charged or suspected person to the proper
judicial authority within a period of three (3) days counted from the moment the said
charged or suspected person has been apprehended or arrested, detained, and
taken into custody by the said police, or law enforcement personnel: Provided, That
the arrest of those suspected of the crime of terrorism or conspiracy to commit
terrorism must result from the surveillance under Section 7 and examination of bank
deposits under Section 27 of this Act.
37. The police or law enforcement personnel concerned shall, before detaining
the person suspected of the crime of terrorism, present him or her before any
judge at the latter’s residence or office nearest the place where the arrest
took place at any time of the day or night. It shall be the duty of the judge,
among other things, to ascertain the identity of the police or law enforcement
personnel and the person or persons they have arrested and presented
before him or her, to inquire of them the reasons why they have arrested the
person and determine by questioning and personal observation whether or
not the suspect has been subjected to any physical, moral or psychological
torture by whom and why. The judge shall then submit a written report of what
he/she had observed when the subject was brought before him to the proper
court that has jurisdiction over the case of the person thus arrested. the judge
shall forthwith submit his/her report within three (3) calendar days from the
time the suspect was brought to his/her residence or office.
38. Immediately after taking custody of a person charged with or suspected of the
crime of terrorism or conspiracy to commit terrorism, the police or law
enforcement personnel shall notify in writing the judge of the court nearest the
place of apprehension or arrest: Provided, That where the arrest is made
during Saturdays, Sundays, holidays or after office hours, the written notice
shall be served at the residence of the judge nearest the place where the
accused was arrested.
The penalty of ten (10) years and one day to twelve (12) years of
imprisonment shall be imposed upon the police or law enforcement personnel
who fails to notify any judge as provided in the preceding paragraph.
39. SEC. 19. Period of Detention in the Event of an Actual or Imminent Terrorist
Attack. In the event of an actual or imminent terrorist attack, suspects may not
be detained for more than three (3) days without the written approval of a
municipal, city, provincial or regional official of a Human Rights Commission or
judge of the municipal, regional trial court, the Sandiganbayan or a justice of
the Court of Appeals nearest the place of the arrest. If the arrest is made during
Saturdays, Sundays, holidays or after office hours, the arresting police or law
enforcement personnel shall bring the person thus arrested to the residence of
any of the officials mentioned above that is nearest the place where the
accused was arrested. The approval in writing of any of the said officials shall
be secured by the police or law enforcement personnel concerned within five
(5) days after the date of the detention of the persons concerned: Provided,
however, That within three (3) days after the detention the suspects, whose
connection with the terror attack or threat is not established, shall be released
immediately.
40. RA 9745: ANTI-TORTURE ACT
PUNISHABLE ACTS
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, such as:
(1)Systematic beating, headbanging, punching, kicking, striking with
truncheon or rifle butt or other similar objects, and jumping on the stomach;
(2)Food deprivation or forcible feeding with spoiled food, animal or human
excreta and other stuff or substances not normally eaten;
(3)Electric shock;
(4)Cigarette burning; burning by electrically heated rods, hot oil, acid; by the
rubbing of pepper or other chemical substances on mucous membranes, or
acids or spices directly on the wound(s);
41. (5) The submersion of the head in water or water polluted with excrement, urine,
vomit and/or blood until the brink of suffocation;
(6) Being tied or forced to assume fixed and stressful bodily position;
(7) Rape and sexual abuse, including the insertion of foreign objects into the sex
organ or rectum, or electrical torture of the genitals;
(8) Mutilation or amputation of the essential parts of the body such as the
genitalia, ear, tongue, etc.;
(9) Dental torture or the forced extraction of the teeth;
(10) Pulling out of fingernails;
(11) Harmful exposure to the elements such as sunlight and extreme cold;
(12) The use of plastic bag and other materials placed over the head to the point
of asphyxiation;
(i) The administration or drugs to induce confession and/or reduce mental
competency; or
(ii) The use of drugs to induce extreme pain or certain symptoms of a disease;
and
42. (14) Other analogous acts of physical torture; and
(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, such as:
(1)Blindfolding;
(2)Threatening a person(s) or his/her relative(s) with bodily harm, execution
or other wrongful acts;
(3)Confinement in solitary cells or secret detention places;
(4)Prolonged interrogation;
(5)Preparing a prisoner for a "show trial", public display or public
humiliation of a detainee or prisoner;
(6)Causing unscheduled transfer of a person deprived of liberty from one
place to another, creating the belief that he/she shall be summarily
executed;
43. (7) Maltreating a member/s of a person's family;
(8) Causing the torture sessions to be witnessed by the person's family,
relatives or any third party;
(9) Denial of sleep/rest;
(10) Shame infliction such as stripping the person naked, parading him/her in
public places, shaving the victim's head or putting marks on his/her body
against his/her will;
(11) Deliberately prohibiting the victim to communicate with any member of
his/her family; and
(12) Other analogous acts of mental/psychological torture.
44. Section 5. Other Cruel, Inhuman and Degrading Treatment or Punishment. -
Other cruel, inhuman or 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 another person in custody, which attains a level of severity
sufficient to cause suffering, gross humiliation or debasement to the latter.
The assessment of the level of severity shall depend on all the circumstances
of the case, including the duration of the treatment or punishment, its physical
and mental effects and, in some cases, the sex, religion, age and state of
health of the victim.
45. Section 6. Freedom from Torture and Other Cruel, Inhuman and Degrading
Treatment or Punishment, An Absolute Bight. - Torture and other cruel,
inhuman and degrading treatment or punishment as criminal acts shall apply
to all circumstances. A state of war or a threat of war, internal political
instability, or any other public emergency, or a document or any
determination comprising an "order of battle" shall not and can never be
invoked as a justification for torture and other cruel, inhuman and degrading
treatment or punishment.
46. Section 7. Prohibited Detention. - Secret detention places, solitary confinement,
incommunicado or other similar forms of detention, where torture may be carried out with
impunity. Are hereby prohibited. In which case, the Philippine National Police (PNP), the
Armed Forces of the Philippines (AFP) and other law enforcement. agencies concerned shall
make an updated list of all detention centers and facilities under their respective jurisdictions
with the corresponding data on the prisoners or detainees incarcerated or detained therein
such as, among others, names, date of arrest and incarceration, and the crime or offense
committed. This list shall be made available to the public at all times, with a copy of the
complete list available at the respective national headquarters of the PNP and AFP. A copy of
the complete list shall likewise be submitted by the PNP, AFP and all other law enforcement
agencies to the Commission on Human Rights (CHR), such list to be periodically updated, by
the same agencies, within the first five (5) days of every month at the minimum. Every
regional office of the PNP, AFP and other law enforcement agencies shall also maintain
similar list far all detainees and detention facilities within their respective areas, and shall
make the same available to the public at all times at their respective regional headquarters,
and submit a copy. updated in the same manner provided above, to the respective regional
offices of the CHR.
47. WHO ARE LIABLE
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
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. If he/she has knowledge of or, owing to the
circumstances at the time, should have known that acts of torture or other cruel, inhuman and degrading
treatment or punishment shall be committed, is being committed, or has been committed by his/her
subordinates or by others within his/her area of responsibility and, despite such knowledge, did not take
preventive or corrective action either before, during or immediately after its commission, when he/she has
the authority to prevent or investigate allegations of torture or other cruel, inhuman and degrading treatment
or punishment but failed to prevent or investigate allegations of such act, whether deliberately or due to
negligence shall also be liable as principals.
48. Any public officer or employee shall be liable as an accessory if he/she has
knowledge that torture or other cruel, inhuman and degrading treatment or
punishment is being committed and without having participated therein, either
as principal or accomplice, takes part subsequent to its commission in any of
the following manner:
(a)By themselves profiting from or assisting the offender to profit from the
effects of the act of torture or other cruel, inhuman and degrading treatment
or punishment;
(b)By concealing the act of torture or other cruel, inhuman and degrading
treatment or punishment and/or destroying the effects or instruments thereof
in order to prevent its discovery; or(c) By harboring, concealing or assisting
m the escape of the principal/s in the act of torture or other cruel,] inhuman
and degrading treatment or punishment: Provided, That the accessory acts
are done with the abuse of the official's public functions.
