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Friday, August 11, 2006
Only court can order release of detainee: rules
By Karlon N. Rama
Sun.Star Staff Reporter
Can a lawyer take custody of his client who has been arrested and save the client from detention?
Not by a long shot, says the Rules on Criminal Procedure. Only the court can order a detainee released either through bail or on recognizance to his lawyer or some other respectable citizen who the court can deputize. That person will be duty-bound to bring the detainee to court when required.
In fact, even if the detainee is a minor, he cannot be released unless the court orders it. The Supreme Court set the rule in a February 2002 resolution.
“A policeman who turns over a lawfully arrested detainee to any person other than the court has committed infidelity in the custody of prisoners,” said Regional State Prosecutor Antonio Arellano in an interview.
Section 3 of Rule 113 states: “It shall be the duty of the officer executing the warrant to arrest the accused and deliver him to the nearest police station or jail without unnecessary delay.”
The issue of policemen releasing detainees to lawyers—or lawyers requiring policemen to release detained clients to their recognizance— surfaced after Cebu City Councilor Gerardo Carillo asked the Criminal Investigation and Detection Group (CIDG) to put three men under his custody.
The men were arrested after the CIDG 7 enforced a court-issued warrant on six shops allegedly selling counterfeit beauty cream.
Carillo has denied doing this. He said he did not intervene in the enforcement of the warrant and that he only explained to the clients what the warrant meant.
The CIDG, meanwhile, has given contrasting narrations on what transpired. First they said the three were arrested but, later on, an agency official said they were only “invited” for questioning.
The Office of the Ombudsman-Visayas and the Integrated Bar of the Philippines Cebu City chapter are now looking into the matter.
The rules, Arellano explained, are very specific. The police first detains the arrested person and, within a given timeframe, prepares and files the necessary charges before the government prosecutor.
The prosecutor reviews the charges through a proceeding called inquest or preliminary investigation and takes account of two things—is there basis to continue the detention and is there probable cause to upgrade the charge into a formal criminal case.
In ruling on the detention, the prosecutor simply determines if the police filed the charge within the given period and, therefore, did not commit arbitrary detention.
If the police failed to meet the deadline, the detainee is released and the complaint is processed under preliminary investigation. The detainee is only told to wait for summons or a subpoena and to answer the charges through a counter-affidavit.
If the deadline was met, the detainee is placed under inquest and the prosecutor is left to determine if the was probable cause to upgrade the charge to court.
If the prosecutor rules to upgrade the charge, a case is filed and the detainee is sent to a penal facility.
“The only point of contention there is was the arrest lawful and valid under the lawful warrant-less arrest rule,” Arellano stressed.
The Rules on Criminal Procedure allow the police to perform warrant-less arrests when, among other conditions, the person to be arrested “has committed, is actually committing, or is attempting to commit an offense.”
In fact, even if the crime had already been committed, a warrant-less arrest is still valid if the arresting policeman “has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it.”
In both cases, the police are still required have the detainee “forthwith delivered to the nearest police station or jail” to be processed against in accordance with the rules on preliminary investigation and inquest.
For Bisaya stories from Cebu. Click here. (August 11, 2006 issue)
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