Policy on Police Personnel under Restrictive Custody as a Preventive Measure and Providing Guidelines in the Implementation Thereof

March 15, 2017

PNP MEMORANDUM CIRCULAR NO. 2017-023

POLICY ON POLICE PERSONNEL UNDER RESTRICTIVE CUSTODY AS A PREVENTIVE MEASURE AND PROVIDING GUIDELINES IN THE IMPLEMENTATION THEREOF

1. REFERENCES:

a. Section 26 of Republic Act No. 6975;

b. Section 52 of Republic Act No. 8551;

c. Rules on Criminal Procedure, Rules of Court;

d. SPO2 Manalo vs. PNP Chief Calderon, et al., G.R. No. 179920, October 15, 2007 n ;

e. Ampatuan vs. Judge Macaraig n ,G.R. No. 182497, June 29, 2010;

f. NAPOLCOM Memorandum Circular (NMC) No. 2016-02; and

g. PNP Memorandum Circular No. 2009-016.

2. RATIONALE:

This Memorandum Circular (MC) aims to establish the guidelines and procedure that shall govern the placing of police personnel under restrictive custody as a form of preventive measure, during the pendency of a grave administrative case or even after the filing of a criminal complaint, grave in nature, against such police personnel.

3. PURPOSE:

This MC defines restrictive custody and relative terms, prescribes the procedure for its implementation and delineates the consequent duties of the persons under restrictive custody and the latter's custodian.

4. DEFINITION OF TERMS:

As provided for in this MC, the following terminologies are defined to be understood as follows:

a. Administrative Complaint — is a written sworn statement regarding a wrong, grievance or injury imputed against a police personnel, filed before the appropriate disciplinary authority or the Internal Affairs Service.

b. Area of Restriction (AOR) — refers to the place or area within which the Person under Restrictive Custody (PURC) is not allowed to go out without prior approval of the Custodian.

c. Chief or Head of Office — shall refer to the immediate superior of the PURC with respect to his/her unit assignment at the time the Restrictive Custody Order was issued. Such immediate superior shall be the Chiefs of Police for Police Stations (MPS/CPS),Provincial Directors for Police Provincial Offices (PPOs),Regional Directors for Police Regional Offices (PROs),Directors for National Support Units (NSUs),and the CPNP.

d. Criminal Complaint — is a sworn written statement charging a person of an offense, subscribed by the offended party, any peace officer, or other public officer charged with the enforcement of the law violated. CAIHTE

e. Custodian — the Chief or Head of Office or other Police Commissioned Officer (PCO) as determined by the CPNP in the Restrictive Custody Order tasked to monitor the movement of the police officer placed under restrictive custody.

f. De Facto Custodian — the Chief of Police of the City or Municipality where the PURC intends to stay or visit who will act as such during the approved leave of absence of the PURC.

g. Grave Administrative Offenses — offenses classified as such under Rule 21, Section 2 C of NAPOLCOM Memorandum Circular No. 2016-002 and Rule 10, Section 46A of Revised Rules on Administrative Cases in the Civil Service where the maximum imposable penalty is dismissal from the service.

h. Grave Criminal Offense — is an offense punishable by imprisonment of at least six years and one day as provided for under the Revised Penal Code or Special Laws.

i. Pending Administrative Case — shall be deemed as such upon the filing of an administrative complaint before the proper disciplinary authority and assignment of a docket number for the purpose of subjecting the police personnel concerned to summary hearing. The said case shall remain pending until after its final disposition or resolution.

j. Person under Restrictive Custody (PURC) — PNP uniformed personnel under restrictive custody by virtue of Restrictive Custody Order.

k. Restrictive Custody — is a non-disciplinary measure authorized under PNP law wherein the movements of the subject police personnel are monitored to assure the PNP authorities that the police officers concerned are always accounted for.

5. GUIDELINES:

Consistent with the existing laws, rules, and regulations, the following policies shall be strictly observed in placing the police personnel under restrictive custody:

a. General Principles:

1) Restrictive custody is a nominal restraint and beyond the ambit of the writ of habeas corpus;

2) The period within which the PURC is placed under restrictive custody shall not be considered part of the actual penalty to be imposed if found culpable of the grave administrative/criminal offense;

3) The CPNP shall have the authority to place police personnel under restrictive custody during the pendency of a grave administrative case filed against him/her or even after the filing of a criminal complaint, grave in nature, against such police personnel. The said authority may be delegated by him to the Regional Director or Director of NSU having jurisdiction over the subject police personnel;

4) The CPNP may also approve recommendations from the Regional Directors or Directors of NSUs to place concerned PNP personnel under restrictive custody;

5) The order placing the PNP personnel under restrictive custody is immediately executory;

6) The Chief or Head of Office as defined in this MC shall be designated by the CPNP as Custodian of the PURC. However, the CPNP, in his discretion, may designate any other PCO to act as Custodian of the PURC; and

7) The PURC may be subjected to the following conditions:

a) Restriction within the camp and proper accounting by the designated custodian;

b) When movement outside the camp is warranted, the PURC shall submit written request to the CPNP, Regional Director or Director of NSU as the case may be; and

c) A logbook should be maintained to record the accounting of their persons, activities, place or places of destinations, time of departure, time of arrival, name of escorts, and names of visitors allowed with passes duly approved.

b. Procedures

1) Issuance of an Order of Restrictive Custody

 Upon the filing of a grave administrative charge or criminal complaint against a police officer, the CPNP may place the said police officer under restrictive custody. The CPNP, in his discretion, may delegate to the Regional Director or Director of NSU having jurisdiction over the subject police personnel the authority to place the subject police officer under restrictive custody. The order of restrictive custody shall explicitly state the custodian and the place where the PURC will stay during the period of restriction. aScITE

 The Restrictive Custody Order shall be in writing indicating the name or names of the PNP personnel who shall be the subject of restrictive custody, the name and position of the designated Custodian, the duration, and the conditions imposed against the PURC.

 The DPRM or its equivalent office in the PROs shall, upon issuance of Restrictive Custody Order, immediately furnish the Custodian a copy of the said order.

2) Duties and Responsibilities

a) The Chief or Head of Office shall notify/inform the PURC of the order immediately upon receipt of the Order of Restrictive Custody. Acting as Custodian, he/she shall also have the following duties and responsibilities:

a.1) Shall be responsible for the implementation of the provisions of the Restrictive Custody Order;

a.2) Schedule the specific time of the periodic accounting to be conducted at least three times a day and seven days a week. The time of accounting shall be scheduled not earlier than 0600H and not later than 2200H with at least 6 hours in between accounting. The schedule shall be communicated to the PURC on the day the latter submitted himself/herself before the Custodian for the purpose of complying with the Restrictive Custody Order;

a.3) Conduct periodic accounting of the PURC based on the schedule prescribed by the former;

a.4) Ensure that the PURC is physically present during the periodic accounting;

a.5) Shall monitor through any legal means the activities and the exact location of the PURC. He/She may also monitor the PURC by communicating with the latter through any means;

a.6) Record the activities of the PURC on the official logbook designated for the purpose which shall include but not limited to periodic accounting, activities, and the place or places visited by the PURC;

a.7) Ensure the faithful compliance by the PURC to the restrictions/conditions imposed in the Order of Restrictive Custody;

a.8) Shall maintain a logbook containing the record of periodic accounting, activities, places where the PURC stayed or visited, and other relevant information;

a.9) Shall submit periodic report regarding the status of PURC through TDPRM to the CPNP or to the designated RD, PRO or Director, NSU;

a.10) May direct the PURC to perform administrative duties;

a.11) Should the PURC submit his or her request to leave outside the AOR, the Custodian shall forward the same to the CPNP, Regional Director, or Director NSU as the case may be for approval;

a.12) Shall notify the Chief of Police of the City or Municipality where the PURC intends to stay or visit during the period of the latter's approved leave of absence for the purpose of acting as a De Facto Custodian during the said period; and

a.13) Shall furnish the De Facto Custodian a copy of the Restrictive Custody Order and other pertinent documents including the prescribed manner and time of accounting.

b) The De Facto Custodian shall have the following duties and responsibilities:

b.1) Shall perform the duties and responsibilities herein prescribed to the Custodian;

b.2) Shall regularly coordinate with the Custodian concerning the status of the PURC; and

b.3) Shall submit a report to the Custodian containing the activities of the PURC during the period of the latter's approved leave of absence.

c) The PURC shall have the following duties and responsibilities:

c. 1) Upon receipt of Restrictive Custody Order, shall immediately submit himself/herself to the Custodian specified in the said Order;

c.2) Attend the periodic accounting as scheduled by the Custodian and when required, notify the custodian of his/her whereabouts during the period of restrictive custody;

c.3) Shall wear the uniform prescribed by the Custodian during the periodic accounting and during the performance of administrative duties if there is any; HEITAD

c.4) If, during a working weekday, there is a necessity for the PURC to move outside the AOR and due to such necessity, he/she will be unable to attend the periodic accounting, he/she shall file a duly accomplished leave form before the Custodian in accordance with the regular procedure in applying for leave of absence. If such necessity occurs during a weekend or a holiday, a written request will be sufficient. However, in case of urgent situations, the PURC shall immediately inform the Custodian through any means of communication with a commitment to file the application for leave or request as soon as possible. In such cases, application for leave or request shall state the place or places where the PURC intends to stay or visit;

c.5) Should the application for leave or request be granted, it shall be the duty of the PURC to report and be accounted before the Chief of Police of the City or Municipality where he/she intends to stay or visit in accordance with the schedule and manner prescribed by the CPNP, Regional Director, or Director NSU as the case may be; and

c.6) Shall perform administrative duties as directed by the Custodian.

6. TERMINATION OF RESTRICTIVE CUSTODY:

The order of restrictive custody shall be terminated when the CPNP or RD, PRO as the case may be, issues an order terminating the same.

7. PENALTY CLAUSE:

The PURC's failure to comply with any of the conditions prescribed in the Restrictive Custody Order is tantamount to Gross Insubordination and shall be considered a Grave Offense under NAPOLCOM Memorandum Circular No. 2016-002.

The Custodian's or De Facto Custodian's failure to comply with any of his/her duties prescribed in this MC shall be tantamount to Serious Neglect of Duty as provided for under NAPOLCOM Memorandum Circular No. 2016-002.

Any violation of this MC shall be dealt with pursuant to NAPOLCOM Memorandum Circular No. 2016-002.

8. RESCISSION:

All existing PNP directives and other issuances which are contrary to or inconsistent with the provisions of this MC are hereby rescinded or modified accordingly.

9. SEPARABILITY CLAUSE:

Any portion of this MC inconsistent with the organic law or declared unconstitutional shall not affect the validity of other provisions.

10. EFFECTIVITY:

This MC shall take effect upon approval of NAPOLCOM and the Civil Service Commission and 15 days after the filing of a copy thereof at the University of the Philippines Law Center, in consonance with Sections 3 and 4, Chapter 2, Book VII of Executive Order No. 292, otherwise known as the "Revised Administrative Code of 1987," as amended.

(SGD.) RONALD M. DELA ROSAPolice Director GeneralChief, PNP

n   Note from the Publisher: Written as "G.R. No. 179920, October 15, 2007" in the original document.

n   Note from the Publisher: Written as “Macaraeg” in the original document.