Dear PAO,
I was accused of a certain crime, and I surrendered to the police after learning that a warrant of arrest had already been issued by the court. I would like to invoke voluntary surrender as a mitigating circumstance, but the private complainant told me that the same will be disregarded, considering that a warrant of arrest was already issued when I surrendered to the authorities. Is the complainant correct?
Cardine
Dear Cardine,
Voluntary surrender is a mitigating circumstance specifically provided under Item 7 of Article 13 of the Revised Penal Code of the Philippines, as amended, which states that:
“The following are mitigating circumstances: xxx
“(7) That the offender had voluntarily surrendered himself to a person in authority or his agents, xxx” For a better understanding of this kind of mitigating circumstance, please be guided by the decision of the Supreme Court in the case of De Vera v. De Vera, GR 172832, April 7, 2009, penned by Associate Justice Antonio Eduardo Nachura, which stated that:
“For voluntary surrender to be appreciated, the following requisites should be present: 1) the offender has not been actually arrested; 2) the offender surrendered himself to a person in authority or the latter’s agent; and 3) the surrender was voluntary. The essence of voluntary surrender is spontaneity and the intent of the accused to give himself up and submit himself to the authorities either because he acknowledges his guilt or he wishes to save the authorities the trouble and expense that may be incurred for his search and capture.”
Hence, surrender to the authorities must be voluntary or spontaneous. Yet, it is not a requirement that the accused must surrender prior to the issuance of the warrant of arrest. This is reinforced by the pronouncement of the Supreme Court in Loza v. People of the Philippines, GR 258592, Aug. 12, 2025, penned by Associate Justice Samuel Gaerlan, citing an earlier case, as follows:
“xxx Upon the other hand, there is direct evidence that the accused voluntarily presented himself to the police on [March 31, 1967]. And the fact that it was effected sometime after the warrant of arrest had been issued does not in the least detract from the voluntary character of the surrender, in the absence of proof to the contrary. Thus, in one case, this Court considered voluntary surrender in favor of the accused, notwithstanding that he showed up 16 days after the order for his arrest was issued, on the ground that the law does not require that before the privilege may be availed of [, ] the surrender should take place prior to the issuance of the arrest order.”
Applying the above-quoted decision to your situation, in order for the mitigating circumstance of voluntary surrender to be appreciated in your favor, you must comply with the following requisites: first, you were not actually arrested; second, you surrendered to the police; and third, your surrender must be voluntary. That is to say, it must be spontaneous because you acknowledge your guilt or wishes to save the authorities the trouble or expense of capturing you. If all the requisites are present, you may still avail of the mitigating circumstance of voluntary surrender, even if a warrant of arrest was already issued against you, contrary to the opinion of the private complainant.
We hope that we were able to answer your queries. This advice was solely based on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Thank you for your continued trust and support.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net
