Week 1 - Arrest

Question 1

What is the definition of an arrest?

Answer 1

Under Rule 113 Sec. 1, an arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense.

Question 2

How is an arrest made?

Answer 2

Under Rule 113 Sec. 2. An arrest is made by: (1) an actual restraint of a person to be arrested; or (2) by his submission to the custody of the person making the arrest.

Question 3

What are the limits upon an arresting officer when making an arrest?

Answer 3

Under Rule 113 sec. 2 par. 2. No violence or unnecessary force shall be used in making an arrest. The person arrested shall not be subjected to a greater restraint than is necessary for his detention.

Question 4

What is the level of restraint used in making an arrest?

Answer 4

Under Rule 113 Sec. 2. par. 2. the level of restraint shall not be greater than what is necessary for the detention of the person to be arrested.

Question 5

Is the application of an actual force necessary in order for the act of an officer to be deemed as an arrest?

Answer 5

No. In Sanchez v. Demetriou, application of actual force, manual touching of the body, physical restraint or a formal declaration of arrest is not required. It is enough that there be an intent on the part of one of the parties to arrest the other and an intent on the part of the other to submit, under the belief and impression that submission is necessary.

Question 6

People v. Sequino GR 117397, 1996

Answer 6

An arrest “is the taking of a person into custody in order that he may be bound to answer for the commission of an offense,” and it is made “by an actual restraint of the person to be arrested, or by his submission to the custody of the person making the arrest.”

Question 7

Defensor-Santiago v. Vasquez GR 99289-90 , 1992

Answer 7

It is a long-standing doctrine that writs of injunction or prohibition will not lie to restrain a criminal prosecution for the reason that public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society, except in specified cases among which are to prevent the use of the strong arm of the law in an oppressive and vindictive manner, and to afford adequate protection to constitutional rights.

Question 8

Cojuangco v. Sandiganbayan GR 134307 , 1998

Answer 8

The rule is well-settled that the giving or posting of bail by the accused is tantamount to submission of his person to the jurisdiction of the court.

Question 9

When is the right to speedy trial violated? (Cojuangco v. Sandiganbayan 1998)

Answer 9

The right to a speedy disposition of a case, like the right to speedy trial, is deemed violated only when the proceeding is attended by vexatious, capricious, and oppressive delays. It should be emphasized that the factors that must be taken into account in determining whether this constitutional rights has been violated are as follows: (1) the length of delay; (2) the reason for such delay; and (3) the assertion or failure to assert such right by the accused, and (4) the prejudice caused by the delay.

Question 10

What is the immunity granted to members of the legislative branch?

Answer 10

CONST. Art. VI. Sec. 11. A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be priviliged from arrest while the Congress is in session. No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof.

Question 11

Who are granted legislative immunity by the Constitution?

Answer 11

CONST. Art. VI Sec. 11. grants immunity to Senators and Members of the House of Representatives.

Question 12

What offenses are covered by legislative immunity?

Answer 12

Under Art VI Sec 11 of CONST, legislative immunity covers: (1) offenses punishable by not more than six years impriosnment (only applies when Congress is in session); and (2) any speech or debate in Congress or in any committee thereof.

Question 13

Whe will legislative immunity apply?

Answer 13

Under Art VI Sec 11 CONST, legislative immunity applies when Congress is in session.

Question 14

What is the general rule under Vienna Convention on Diplomatic Relations Art. 31?

Answer 14

The general rule under the Vienna Convention on Diplomatic Relations. Art. 31. - A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction.

Question 15

What is the exception to the general rule of the Art. 31 Vienna Convention on Diplomatic Relations?

Answer 15

Art. 31 Vienna Conv. on Dip. Rel. - A diplomatic agent shall enjoy […] immunity from its civil administrative jurisdiction EXCEPT in case of: (1) A real action relating to private immovable property situated in the territory of the receiving State, UNLESS he holds it on behalf of the sending State for the purposes of the mission; (2) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and NOT on behalf of the sending State; (3) An action relating to any professional commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

Question 16

Is a diplomatic agent obliged to give evidence as a witness?

Answer 16

No. Under Art. 31 of the Vienna Convention on Diplomatic Relations, a diplomatic agent is not obliged to give evidence as a witness.

Question 17

Is a diplomatic agent exempted from the jurisdiction of the sending State?

Answer 17

No. Under Art. 31 of the Vienna Conv. on Dip. Rel., the immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State.

Question 18

CONST. Art. III. Sec. 2.

Answer 18

T R O T P T B S I N T P, H, P, A E A U S A S O W N A F A P S B I, A N S W O W O A S I E U P C T B D P B T J A E U O O A O T C A T W H M P A P D T P T B S A T P O T T B S.

Question 19

What is the constitutional requirement for the issuance of a warrant of arrest?

Answer 19

Probable cause. CONST. Art. III. Sec. 2 requires that no warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination upon oath or affirmation of the complainant and the witness he may produce.

Question 20

What is the meaning of probable cause for the issuance of a warrant of arrest?

Answer 20

Probable cause for the issuance of a warrant of arrest has been defined as “such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested.” (Riano citing Ocampo v Abando GR 176830)

Question 21

Does the Constitution require that the judge personally examine the witnesses?

Answer 21

No, citing the case of Soliven v Makasiar, the Court in AAA v Carbonell explained that his constitutional provision does not mandatorily require the judge to personally examine the complainant and his wintesses. Instead, he may opt to personally evaluate the report and supporting documents submitted by the prosecutor or he may disregard the prosecutor’s report and require the submission of supporting affidavits of witnesses. (Riano)

Question 22

What are the options of the judge in making an examination for the issuance of warrant of arrest?

Answer 22

The options of the judge are: (1) personally examine the complainant and the witness under oath or affirmation; (2) personally evaluate the report and supporting documents submitted by the prosecutor; or (3) disregard the prosecutor’s report and require the submission of suppoting affidavits of witnesses. (Riano citing AAA v Carbonell)

Question 23

Rule 113 Sec 2. Arrest; how made.

Answer 23

A A I M B A A R O A P T B A O B H S T T C O T P M T A // N V O U F S B U I M A A. T P A S N B S T A G R T I N F H D

Question 24

How is an arrest made?

Answer 24

An arrest is made by: (1) an actual restraint of a person to be arrsted; or (2) by his submission to the custody of the person making the arrest.(Rule 113 Sec 2)

Question 25

What are prohibited when making an arrest?

Answer 25

Violence or unnecessry force are prohibited when making an arrest (Rule 113 Sec 2)

Question 26

What are the duties of the arresting officer?

Answer 26

Under Sec 3 Rule 113, the duties of the arresting officer are: (1) arrest the accused; and (2) deliver him to the nearest police station or jail without unnecessary delay.

Question 27

How many days should the warrant of arrest be executed from date delivery to the office of the person in authority?

Answer 27

10 days. Under Sec 4 Rule 113, the head of the office to whom the warrant of arrest was delivered for execution shall cause the warrant to be executed within ten (10) days from its receipt.

Question 28

What is the duty of the officer after the execution of the warrant?

Answer 28

Make a report to the judge who issued the warrant within ten (10) days after the expiration of the period, and in case of his failure to execute the warrant, he shall state the reasons therefore. (Rule 113 Sec 4).

Question 29

What is the reckoning point for the duty to write a report to the judge who issued the warrant?

Answer 29

The reckoning point is the expiration of the period of execution of warrant. Within 10 days after the expiration of the execution period of the warrant, the officer to whom it was assigned for execution shall make a report to the judge who issued the warrant.

Question 30

Sec. 6. Rule 113 of the ROC. Time of making arrest.

Answer 30

Sec. 6. .Time of making arrest. – An arrest may be made on any day and at any time of the day or night.

Question 31

What is the proper procedure in making an arrest by virtue of a warrant?

Answer 31

Rule 113 Sec. 7. Method of arrest by officer by virtue of warrant prescribes that when making an arrest by virtue of a warrant, the officer shall INFORM the person to be arrested of: (1) the cause of the arrest; and (2) the fact that a warrant has been issued for his arrest.

Question 32

When may the officer disregard the requirement of informing the person to be arrested of the cause and the fact of issuance of warrant?

Answer 32

Rule 113 Sec. 7. provides an exception to the duty of informing the person to be arrested: except when he (1) flees or forcibly resists BEFORE the officer has the opportunity to so inform him, or (2) when the giving of such information will imperil the arrest.

Question 33

Is the officer required to have the warrant in his possession at the time of the arrest?

Answer 33

No, under Rule 113 sec. 7, the officer need not have the warrant in his possession at the time of the arrest but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable.

Question 34

People v Lumayok (rights of the person being arrested)

Answer 34

At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he msut be shown the warrant of arrest,… He shall bei nformed of his constitutional rights to remain silent adn to counsel and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means – by telephone if possible – or by letter or messenger. It shall be the responsibility of hte arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right of the accused to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. ANy statement obtained in violation of hte procedure herein laid down, whether execulpatory or inculpatory in whole or in part shall be inadmissible in evidence. (citing Francisco v Galit)