Custodial Investigation (RA 7438)

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, wardsand 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.)