MEMORIA DE CUENTAS ANUALES CONSOLIDADAS
(6) ACTIVOS INTANGIBLES
Section 1. Preliminary investigation defined; when required. – Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial. Except as provided in Section 7 of this Rule, a preliminary investigation is required to be conducted before the filing of a compliant or information for an offense where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to the fine.
What is preliminary investigation?
o Inquiry or proceeding to determine whether there is ground to form a belief that a crime has been committed and the respondent is probably guilty, and should be held for trial o Basically, the prosecutor determines if there is probable cause
Required for an offense where the penalty is at least 4 years, 2 months and 1 day WITHOUT
regard to the fine
As compared to an inquest: inquest is done when there was a valid warrantless arrest
o Determines whether person arrested without warrant should be detained or released for further PI
Remember: in PI, use “respondent”, not “accused.”
o The case only becomes a criminal one once the information is filed.
Sec. 2. Officers authorized to conduct preliminary investigations. – The following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants; (b) National and Regional State Prosecutors; and (c) Other officers as may be authorized by law.
Their authority to conduct preliminary investigations shall include all crimes cognizable by the proper court in their respective territorial jurisdictions. (As amended by AM 05-8-26-SC, October 3, 2005)
Who can conduct PI?
o City prosecutors and their assistants o Provincial prosecutors and their assistants o National and regional state prosecutors o OMB, and the SP (if authorized by the OMB) The NBI can NOT conduct a PI.
Sec. 3. Procedure.– The preliminary investigation shall be conducted in the following manner:
(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public, each of whom must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents.
The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense.
Objects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing at the expense of the requesting party.
(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by
him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating office shall resolve the complaint based on the evidence presented by the complainant.
(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or cross- examine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned.
The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or from the expiration of the period for their submission. It shall be terminated within five (5) days.
(f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial.
GR: The complaint-affidavit must be subscribed to before the prosecutor or government official where the case will be filed.
o Hence, do NOT file a notarized affidavit. You have to bring your client to the prosecutor’s office.
EXCEPTION:
When there is no prosecutor or government official available Special case of Sasot v People, where the complainant was abroad
o Remember: the jurisdiction of prosecutors are based on territory. So a prosecutor in Cagayan de Oro can not make an information and then forward it to Manila.
Use Rule 117, Sec 3 (d) to quash it.
For public crimes, the complaint can be initiated by any competent person with personal
knowledge of the acts committed by the offender. It need not be filed by the offended party. (compare to private crimes)
o “Any competent person” includes witnesses (Soriano v People, 2010, where the witnesses executed affidavits for a case of estafa)
When a letter or NBI-NCR report is transmitted, along with affidavits of witnesses as attachments, the requirements for initiation of PI is substantially complied with, since the affidavits are what initiate the PI, not the letters. (Soriano v People, where the affidavits were notarized and this was substantial compliance)
The absence of oath in the complaint does NOT necessarily render it invalid.
o Want of oath is a mere defect of form, which does not affect the substantial rights of the defendant on the merits. (Sasot v People, where the complaint-affidavit was notarized in the US. The copy on record was a mere photocopy but was still allowed because the counsel said that they would present the original in court)
For cases which do NOT need PI, only section 3(a) is needed since the prosecutor does not need the counter-affidavit from the respondent.
Procedure for PI:
o After receiving the affidavit-complaint, the prosecutor has 10 days to determine if there is probable cause
He can dismiss it outright
It’s actually raffled and assigned to the assistant prosecutor o The assistant prosecutor will issue a subpoena to the respondent o The respondent has 10 days to submit a counter-affidavit
If none given, the investigating officer can resolve based on the complaint In practice, there can also be a reply or rejoinder from the complainant o Optional clarificatory hearing
Within 10 days from submission of the counter-affidavits, or from the expiration of the period for submission
o Resolution
Usually prepared by the assistant prosecutor, and then approved by the city
prosecutor (see next section) Can you file an MR with the prosecutor?
o Yes! The rule in Ramiscal (filing of an MR to reverse the resolution will not bar the filing of the information) will also apply to local courts.
Note: there is no need for the service of subpoena (and receipt thereof) for the OP to obtain jd over the respondent.
o There’s no case against him yet, just an investigation.
o Even if he doesn’t submit a counter-affidavit, there can still be a resolution against him. Preliminary investigation is not the occasion for full and exhaustive display of evidence.
o Hence, the admissibility of a fax message can NOT be determined during a PI. It is better ventilated in a full-blown trial. (Lee v KBC Bank, 2011)
Sec. 4. Resolution of investigating prosecutor and its review. – If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of such action.
No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by himself, file the information against the respondent, or direct another assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation.
If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu propio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting anther preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman.
The resolution made by the investigating officer shall be forwarded (along with the records) to the city (or provincial or chief state) prosecutor or OMB.
o No complaint or information may be filed or dismissed by the investigating officer without the prior written authority or approval of the city prosecutor (or provincial or chief state). o If the resolution of the investigating prosecutor is for dismissal but is disapproved by his
boss, the boss can either:
File the information himself, or Direct another prosecutor to do it
WITHOUT need of a new PI
Either party can petition to the Secretary of Justice (or he can do it motu propio) and
reverse/modify the resolution of the provincial, city or chief state prosec o The DOJ Sec can direct the prosec to
File the corresponding info without need of another PI, or Dismiss the information
How do you appeal the resolution? 23
o Within 15 days, file with the Office of the Secretary of Justice a VERIFIED Petition for Review.24
The period can NOT be extended. If the DOJ Decision is adverse:
Use Rule 43 to the CA
23 See DOJ Circular No. 70 (2000)
24 SECTION 2. Where to appeal. An appeal may be brought to the Secretary of Justice within the period and in the manner herein provided.
SECTION 3. Period to appeal. The appeal shall be taken within fifteen (15) days from receipt of the resolution, or of the denial of the motion for reconsideration/reinvestigation if one has been filed within fifteen (15) days from receipt of the assailed resolution. Only one motion for reconsideration shall be allowed.
SECTION 4. How appeal taken. An aggrieved party may appeal by filing a verified petition for review with the Office of the Secretary, Department of Justice, and by furnishing copies thereof to the adverse party and the Prosecution Office issuing the appealed resolution.
Or Office of the President if punishable by RP or higher But if based on GADALEJ, Rule 65 to the CA
o Compare: if GADALEJ of OMB, you go straight to SC
o The DOJ can only review resolutions of offenses requiring a PI or those which have gone through reinvestigation.25
If no PI, then DOJ can NOT review. Reinvestigation: applies when:
There was already a PI, or
There was supposed to be a PI but it was not done,
o Filed with the City/Prov Prosec or the court itself (if with court, with motion to lift warrant)
In Community Rural Bank v Talavera, the SC did not allow the trial court judge to allow the reinvestigation because the DOJ Secretary had already ruled on the matter beforehand. Allowing the trial court judge to order the prosecutor to reinvestigate will, in effect, make the lowly prosecutor review the decision of the DOJ Secretary. That can’t be allowed.
So, usually, if the DOJ Sec already rules on the matter, you can’t ask the judge for a reinvestigation anymore. Umakyat na sa DOJ Sec
eh.
o What is the effect of the appeal to the DOJ?
It will NOT hold the filing of information, unless the DOJ Secretary says otherwise. Although Atty. Tranquil said it will usually defer the proceedings.
But the appellant and the prosecutor will see to it that the proceedings are held in abeyance.26
If information has already been filed, the appeal to the DOJ will defer arraignment for 60 days.27
o What if the information was already filed in court?
A copy of the motion to defer proceedings must accompany the petition.28
o What if the accused was arraigned after the filing of the petition with DOJ?
It will not prevent the DOJ from acting on the appeal. (Serag v CA, 473 SCRA 590, where the SC said there was undue haste on the RTC when it arraigned the accused knowing that there was still an appeal and pending MR of the DOJ decision. It should have waited for the final resolution of the DOJ before doing so. Interesting because the accused were arraigned for homicide, but the SC disallowed the arraignment because the final DOJ resolution stated it should have been murder. NO double jeopardy! However, Sir said that in practice)
But if the arraignment happened before the appeal to the DOJ, the petition will not be given due course.29 (Adasa v Abalos, 2007)
25 SECTION 1. Scope. - This Rule shall apply to appeals from resolutions of the Chief State Prosecutor, Regional State Prosecutors and
Provincial/City Prosecutors in cases subject of preliminary investigation/ reinvestigation.
26 SECTION 9. Effect of the appeal. Unless the Secretary of Justice directs otherwise, the appeal shall not hold the filing of the corresponding
information in court on the basis of the finding of probable cause in the appealed resolution.
27Rule 116 l Sec. 11. Suspension of arraignment. – Upon motion by the proper party, the arraignment shall be suspended in the following cases:
xxx
(c) A petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or the Office of the President; provided, that the period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the reviewing office.
28 SECTION 5. Contents of petition. - The petition shall contain or state: (a) the names and addresses of the parties; (b) the Investigation Slip
number (I.S. No.) and criminal case number, if any, and title of the case, including the offense charged in the complaint; (c) the venue of the preliminary investigation; (d) the specific material dates showing that it was filed on time; (e) a clear and concise statement of the facts, the assignment of errors, and the reasons or arguments relied upon for the allowance of the appeal; and (f) proof of service of a copy of the petition to the adverse party and the Prosecution Office concerned.
The petition shall be accompanied by legible duplicate original or certified true copy of the resolution appealed from together with legible true copies of the complaint, affidavits/sworn statements and other evidence submitted by the parties during the preliminary investigation/ reinvestigation.
If an information has been filed in court pursuant to the appealed resolution, a copy of the motion to defer proceedings filed in court must also accompany the petition. The investigating/reviewing/approving prosecutor shall not be impleaded as party respondent in the petition. The party taking the appeal shall be referred to in the petition as either "Complainant-Appellant" or "Respondent- Appellant".
Comments of the Tranquilizer: In practice, the court can’t wait forever for the DOJ to act on the petition for review. And whatever findings the DOJ has, it’s merely recommendatory as the court already has jurisdiction over the case. If the accused had already been arraigned, then the petition for review will really be useless. o Can you file an MR to the decision of the DOJ?
Yes, period is 10 days. This is what was filed in Serag v CA.
Does the posting of bail bar the accused from questioning the conduct (or absence) of PI or the legality of the arrest?
o No, it does not. Accused can still question. (Okabe v Gutierrez, 2004 where the arrest and the conduct of the PI were both questioned)
Sec. 5. When warrant of arrest may issue. –
(a) By the Regional Trial Court. – Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information.
(b) By the Municipal Trial Court. – When required pursuant to the second paragraph of section of this Rule, the preliminary investigation of cases falling under the original jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court shall be conducted by the prosecutor. The procedure for the issuance of a warrant of arrest by the judge shall be governed by paragraph (a) of this section.
(c) When warrant of arrest not necessary. – A warrant of arrest shall not issue if the accused is already under detention pursuant to a warrant issued by the municipal trial court in accordance with paragraph (b) of this section, or if the complaint or information was filed pursuant to section 6 of this Rule or is for an offense penalized by fine only. The court shall them proceed in the exercise of its original jurisdiction.
There is executive determination and judicial determination of probable cause o Executive by the prosecutor, for information
o Judicial by the judge, for the warrant of arrest
Judge should not rely solely on prosecutor’s resolution. The prosecutor must
forward the documents to the judge. (Okabe v Gutierrez)