Dear PAO,

My brother went into hiding for quite some time to evade arrest and was cornered by the police when he paid a visit to my father. He only surrendered when my father informed him that his penalty will be mitigated if he gives up. The complainant is claiming that my brother did not surrender voluntarily. When do we consider voluntary surrender as a mitigating circumstance?

Tongsit

Dear Tongsit,

The mitigating circumstance of voluntary surrender is found under Article 13 (7) of the Revised Penal Code of the Philippines, as amended, which reads:

“That the offender had voluntarily surrendered himself to a person in authority or his agents, xxx”

In Canta vs. People of the Philippines, GR 140937, Feb. 28, 2001, the Supreme Court, through Associate Justice Vicente Mendoza, enumerated the elements of voluntary surrender which are as follows:

“(1) the offender has not actually been arrested.

“(2) the offender surrenders to a person in authority or to the latter’s agent.

“(3) the surrender is voluntary.”

In Loza vs. People of the Philippines, GR 258592, Aug. 12, 2025, which was penned by Associate Justice Samuel Gaerlan, the guiding principles to be followed in assessing voluntary surrender was laid down, to wit:

“Firstly, voluntariness and ultimately, spontaneity requires two intentions as spelled out in Sakam, which is either acknowledgment of guilt or a wish to save the authorities the trouble of searching for and arresting the accused.

“Secondly, the circumstances of voluntary surrender exist in tandem with, but also independent of, the fact of the issuance of an arrest warrant, meaning that the totality of the circumstances of the voluntary surrender trump the fact that an arrest warrant had been issued, but circumstances such as the knowledge of the accused of said arrest warrant and his continued evasion of justice can negate an intention of voluntariness and ultimately, of spontaneity. Xxx

“Thirdly, the amount of time an accused has utilized to evade the law is not the only criterion for totally negating spontaneity, but is only one among several factors to be considered in adjudging whether the accused is entitled to the benefit of the mitigating circumstance. It cannot be the sole consideration for denying the accused the said benefit, but depending on the other circumstances, it can weigh heavily in such ultimate consideration. For example, knowledge of the accused of the issuance of an arrest warrant against him or her many years ago can be negated by his or her submission to the nearest authority once he or she came by such knowledge. The reverse can also be true: the continued evasion by the accused of detection and arrest with the distinct knowledge that he or she is a wanted person can negate any notion of spontaneity entirely.

“Fourthly, the notion of imminence of arrest should be seen in conjunction with any indication of the flight and/or fugitive situation of the accused, and not in conjunction with the issuance of an arrest warrant, which has been explained to be an independent circumstance separate, but still related remotely to the act of voluntary surrender. And as also previously mentioned, imminence runs together with the lack of spontaneity due to the realization of the impossibility of evading the authorities for longer.

“Fifthly, the intention of the accused at the relevant tune should also be one among the other considerations when adjudging a claim of voluntary surrender. xxx

“And lastly, the Court is reminded of its ruling in People v. Banzales, where it categorically ruled that “[w]here the record does not clearly show that the accused voluntarily surrendered to the authorities, the doubt cannot be resolved in their favor.”

Applying the above-quoted decision in your situation, it is a requirement that surrender must be voluntary and spontaneous because the accused acknowledged his or her guilt or wishes to spare the government from trouble or expenses in capturing him or her. Voluntary surrender cannot be appreciated in favor of your brother because he has been hiding for quite some time. He only surrendered after he was cornered by the police and convinced by your father.

We hope that we were able to answer your queries. This advice is 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 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 [email protected].