El acceso a la justicia y su relación con la pobreza

Who must prosecute the criminal action; who controls the prosecution (Bar 1990; 2000)

1. A criminal action is prosecuted under the direction and control of the public prosecutor. This is the general rule and this applies to a criminal action commenced either by a complaint or an information (Sec. 5, Rule 110, Rules of Court; Uy v. People, G.R. No. 174899, September 11,2008).

All criminal actions covered by a complaint or information shall be prosecuted under the direct supervision and control of the public prosecutor (Ricarze v. Court of Appeals, G.R. No. 160451, February 9, 2007; Adasa v.

Abalos, G.R. No. 168617 February 19, 2007). Even if there is a private prosecutor, the criminal action is still prosecuted under the direction and control of the public prosecutor.

2. The rationale for the rule that all criminal actions shall be prosecuted under the direction and control of a public

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prosecutor is that since a criminal offense is an outrage against the sovereignty of the State, it necessarily follows that a representative of the State shall direct and control the prosecution thereof (Chua v. Padillo, G.R. No. 163797, April 24,2007). The mandate that all criminal actions, either commenced by a complaint or information shall be prosecuted under the direction and control of a public prosecutor, is founded on the theory that a crime is a breach of the security and peace of the people at large, an outrage against the very sovereignty of the State (Baviera v. Paglinawan, G.R. No. 168380, February 8,2007).

Appearance of a private prosecutor

1. The appointment of a private prosecutor is done by the offended party and is the mode by which the latter intervenes in the prosecution of the offense. This intervention is however, only allowed where the civil action for the recovery of the civil liability is instituted in the criminal action pursuant to Rule 111 (Sec. 16, Rule 110, Rules of Court).

2. Hence, the offended party may not intervene in the prosecution of the offense through a private prosecutor if the offended party (a) waives the civil action, (b) reserves the right to institute it separately, or (c) institutes the civil action prior to the criminal action.

Effect of the filing of an independent civil action on the right of the offended party to intervene in the prosecution of the offense

1. The institution of an independent civil action does not deprive the offended party of the right to intervene in the civil action through a private prosecutor.

2. Under Sec. 1 of Rule 111 of the 2000 Rules of Criminal Procedure,

"When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action ..

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3. Note however, that pursuant to said provision, only the civil liability of the accused arising from the offense charged is deemed impliedly instituted in a criminal action, unless the offended party waives the civil action, reserves the right to institute it separately, or institutes it prior to the criminal action. Those not arising from the offense charged like the independent civil actions referred to in Arts. 32, 33, 34 and 2176 of the Civil Code are not deemed instituted with the criminal action. These actions, according to Sec. 3 of Rule 111 of the Rules of Court shall proceed independently of the criminal action.

Thus, the 2000 Rules of Criminal Procedure deleted the requirement of reserving independent civil actions and allowed these to proceed separately from criminal actions because they are separate, distinct and independent of any criminal prosecution even if based on the same act which also gave rise to the criminal action.

4. Thus, it was ruled that as one of the direct consequences of the independent character of actions brought under Arts. 32,33,34 and 2176 of the Civil Code, even if a civil action is filed separately, "the ex delicto civil liability in the criminal prosecution remains, and the offended party may — subject to the control of the prosecutor — still intervene in the criminal action, in order to protect the remaining civil interest therein" (Philippine Rabbit Bus Lines v.

People, G.R. No. 147703, April 14,2004).

Consequences of the rule that a criminal action is prosecuted under the direction and control of the public prosecutor

1. The public prosecutor, in the exercise of his functions, has the power and discretion to: (a) determine whether a prima facie case exists, (b) decide which of the conflicting testimonies should be believed free from the interference or control of the offended party, and (c) subject only to the right against self-incrimination, determine which witnesses to present in court.

(Chua v. Padillo, G.R. No. 163797, April 24, 2007). The public prosecutor may turn over the actual prosecution of the criminal case to the private prosecutor, in the exercise of his discretion, but he may at any time, takl*

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over the actual conduct of the trial (People v. Tan, G.R. No. 177566, March 26,2008).

The executive department of the government is accountable for the prosecution of crimes. The right to prosecute vests the prosecutor with a wide range of discretion, the discretion of whether, what and whom to charge, the exercise of which depends on factors which are best appreciated by prosecutors (Gonzalez v. Hongkong & Shanghai Banking Corporation, G.R.

No. 164904, October 19,2007).

2. The power to prosecute includes the initial discretion to determine who should be utilized by the government as a state witness (People v.

Fajardo, 512 SCRA 360, January 23, 2007).

3. The prosecution is also entitled to conduct its own case and to decide what witnesses to call to support its charges. The non-presentation of a witness by the prosecution cannot be construed as suppression of evidence where the testimony is merely corroborative (Ritualo v. People, G.R. No.

178337, June 25, 2009).

4. Not even the Supreme Court can order the prosecution of a person against whom the prosecutor does not find sufficient evidence to support at least a prima facie case — the only possible exception to the rule is where there is an unmistakable showing of grave abuse of discretion on the part of the prosecutor (Chua v. Padillo, G.R. No. 163797, April 24,2007).

5. In one case, three informations were filed against the petitioner before the Regional Trial Court (RTC) of Pasig City.

One information pertains to allegations that petitioner employed manipulative devises in the purchase of Best World Resources Corporation (BW) shares. The other informations involve the alleged failure of petitioner to file with the Securities and Exchange Commission (SEC) a sworn statement of his beneficial ownership of BW shares.

d.- Petitioner was arraigned and pleaded not guilty to the charges.

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Subsequently, the trial court ruled that the delays which attended the proceedings of one of the petitioner's cases were vexatious, capricious and oppressive, resulting in violation of the petitioner's right to speedy trial and hence, ordered its dismissal. The dismissal was later on reversed by the Court of Appeals and reinstated the. case previously dismissed.

Petitioner moved for a reconsideration of the decision of the Court of Appeals and filed a motion for inhibition of the Justices who decided the case but both motions were denied.

The petitioner hence, filed a petition for review on certiorari, raising among others the issue that the certificate of non- forum shopping attached to the People's petition for certiorari before the Court of Appeals should have been signed by the Chairman of the SEC as complainant in the cases instead of Acting DOJ Secretary Merceditas N. Gutierrez.

The Court found the petitioner's argument futile holding that the Court of Appeals was correct in sustaining the authority of Acting DOJ Secretary Merceditas Gutierrez to sign the certification. The Court went on to say that it must be stressed that the certification against forum shopping is required to be executed by the plaintiff. Although the complaint-affidavit was signed by the Prosecution and Enforcement Department of the SEC, the petition before the Court of Appeals originated from Criminal Case No. 119830, where the plaintiff or the party instituting the case was the People of the Philippines. Section 2, Rule 110 of the Rules of Court leaves no room for doubt and establishes that criminal cases are prosecuted in the name of the People of the Philippines, the offended party in criminal cases. Moreover, pursuant to Section 3, paragraph (2) of the Revised Administrative Code, the DOJ is the. executive arm of the government mandated to investigate the commission of crimes, prosecute offenders and administer the probation and correction system. It is the DOJ, through its prosecutors, which is authorized to prosecute criminal cases on behalf of the People of the Philippines. Prosecutors control and direct the prosecution of criminal offenses, including the conduct of preliminary investigation, subject to

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review by the Secretary of Justice. Since it is the DOJ which is the government agency tasked to prosecute criminal cases before the trial court, the DOJ is best suited to attest whether a similar or related case has been filed or is pending in another court or tribunal. Acting DOJ Secretary Merceditas N. Gutierrez, being the head of the DOJ, therefore, had the authority to sign the certificate of non-forum shopping for the criminal case which was filed on behalf of the People of the Philippines (Tan v. People, G.R. No. 173637, April 21, 2009).

6. In a case, the accused argues that he can no longer be charged because he was left alone after either the death or acquittal or the failure to charge his co-conspirators. The accused likewise argues that his prosecution, to the exclusion of others, constitutes unfair discrimination and violates his constitutional right to equal protection of the law. He says that the dismissal of the case against his co-accused was not appealed by the prosecution and some who should be accused were not charged.

The Court considered the argument erroneous. A conspiracy is in its nature a joint offense. One person cannot conspire alone. The crime depends upon the joint act or intent of two or more persons. Yet, it does not follow that one person cannot be convicted of conspiracy. As long as the acquittal or death of a co-conspirator does not remove the basis of a charge of conspiracy, one defendant may be found guilty of the offense.

The Court also held that the accused was not unfairly discriminated against and his constitutional right to equal protection violated. The Court explained that the manner in which the prosecution of the case is handled is within the sound discretion of the prosecutor, and the non-inclusion of other guilty persons is irrelevant to the case against the accused. A discriminatory purpose is never presumed. The facts show that it was not solely the respondent who was charged, but also five others. Further, the fact that the dismissal of the dase against his co-accused was not appealed is not sufficient to cry discrimination. This is likewise true for the non-

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inclusion of the two persons. Mere speculation, unsupported by convincing evidence, cannot establish discrimination on the part of the prosecution and the denial to respondent of the equal protection of the laws (People v.

Dumlao, G.R. No. 168918, March 2, 2009).

7. Another case lucidly illustrates the consequences of the rule that the prosecution of a crime is under the direction and control of the public prosecutor.

Thus, in the case of Pinote v. Ayco, A.M. No-RTJ-05-1944, December 13, 2005, the trial judge allowed the defense to present evidence consisting of the testimony of two witnesses, even in the absence of the prosecutor charged with prosecuting the case. The prosecutor at the time was undergoing medical treatment at the Philippine Heart Center in Quezon City.

Maintaining that the proceedings conducted in his absence were void, the prosecutor, on the subsequent hearings of the case, refused to cross-examine the two defense witnesses, despite being ordered by the judge.

After manifesting to the court the reason for his absence, a reason earlier relayed to the court on the day of the hearing in question, he reiterated his position that the act of the judge of allowing the defense to present evidence in his absence was erroneous and highly irregular. He thus prayed that he should not be "coerced" to cross-examine those two defense witnesses and that their testimonies be stricken off the record. The judge, nevertheless considered the prosecution to have waived its right to cross- examine the two defense witnesses. An administrative complaint was then lodged by the prosecutor against the judge for "gross ignorance of the law, grave abuse of authority and serious misconduct."

On evaluation of the case, the Office of the Court Administrator (OCA), citing Section 5, Rule 110 of the Revised Rule on Criminal Procedure, found respondent judge to have breached said rule and accordingly recommended that he be reprimanded, with a warning that a repetition of the same 05 similar act shall be dealt with more severely.

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Adopting the findings of the Office of the Court Administrator, the Court ruled that a violation of criminal laws is an affront to the People of the Philippines as a whole and not merely to the person directly prejudiced, he being merely the complaining witness. It is on this account, held the Court, that the presence of a public prosecutor in the trial of criminal cases is necessary to protect vital state interests, foremost of which is its interest to vindicate the rule of law, the bedrock of peace of the people. The act of allowing the presentation of the defense witnesses in the absence of complainant public prosecutor or a private prosecutor designated for the purpose is a clear transgression of the Rules which could not be rectified by subsequently giving the prosecution a chance to cross-examine the witnesses.

Added the Court:

"Respondent's intention to uphold the right of the accused to a speedy disposition of the case, no matter how noble it may be, cannot justify a breach of the Rules. If the accused is entitled to due process, so is the State."

Prosecution of a criminal action in the Municipal Trial Court or Municipal Circuit Trial Court

A criminal action in a Municipal Trial Court or in a Municipal Circuit Trial Court shall also be prosecuted under the direction and control of the prosecutor (Sec. 5, Rule 110, Rules of Court). However, when the prosecutor assigned is not available, the action may be prosecuted by (a) the offended party, (b) any peace officer, (c) or public officer charged with the enforcement of the law violated (OCA Circular No. 39- 2002, August 21,2002).

Prosecution for violation of special laws

Where the offense is a violation of a special law, the same shall be prosecuted pursuant to the provisions of said law (Sec. 5, Rule 110, Rules of Court).

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III. INTERVENTION OF THE OFFENDED PARTY IN THE PROSECUTION