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HOW TO APPEAL DECISIONS OF THE PROSECUTOR

By Garry Puaso (Tuesday, 31 May 2011)


In the municipal level, the relationship of the Philippine National Police
and the Office of the Prosecutor is of paramount importance. The PNP usually
represented by the unit Investigator, has nobody to turn except to the Public
Prosecutor when confronted with issues requiring legal expertise particularly
with the filing of criminal cases. We must admit though, that in certain
instances, a Prosecutor may not necessarily be convinced of the cases filed by a
Police Investigator. It may result in the dismissal of cases even on the
preliminary investigation or inquest stage.
Outcome of cases filed by the police is at the mercy of the Prosecutor
because no office in the PNP handle appeals in connection with Resolutions of
the Prosecutor. Dismissal of the case at the prosecutors level means the PNP
has to let go of the suspect. This would further drain the resources of a police
unit because after a warrant of arrest will be issued, police personnel will exert
effort and spent financial resources again to capture the same person.
It is no arrogance to claim, especially to those who have the experience
that the reason for the dismissal of the case is not really that the PNP has no
case at all citing experience as a Police Investigator. The problem lies on
relationship with the handling Prosecutor.
At the very start of the incident the Investigator knows the real-score on
how to win the case. But sometime events turn otherwise when the prosecutor
imposes his authority, suggests things, requires documents, gives demoralizing
comments, etc. as to the merit of the case citing variables such as politics,
blood relationships and previous experience with the PNPs law enforcement
activities, not to mention volume of his deadlines, and many factors that drives
a prosecutor to have an attitude of resistance upon seeing a PNP member in his
office.

Eto ang Abogado Nyo!


While looking for references in the library, I came across a criminal
investigation Manual revised 2010 published by Directorate for Investigation
and Detective Management (DIDM). The book laid down the procedures that
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Investigators need in performing their duty. Although the last part of the
Manual has a form for notice of appeal, the appeal is premised on the outcome
of the trial.

Absent in the manual is the discussion on how to appeal an adverse


Resolution of the Public Prosecutor be it regular preliminary investigation,
reinvestigation or those arising from an inquest proceeding found in DOJ
Department Circular No. 70 (2000 NPS Rule on Appeal) which I believe should
have been incorporated in the Manual.
There is no much problem in appealing Resolutions during Preliminary
Investigations or Reinvestigation. The appeal procedure provides that:
1. The verified Petition for Review shall be brought to the Secretary of
Justice within 15 days after receipt of the Resolution or within the same period
after receipt of the denial of the Motion for Reconsideration if one has been
filed.
2. The investigating/reviewing/approving prosecutor shall not be
impleaded as party respondent in the petition. The PNP unit taking the
appeal shall be referred to in the petition as "Complainant-Appellant".
3. 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.
4. 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.
5. Failure to comply with the above requirements shall constitute sufficient
ground for the dismissal of the petition.

Below is a suggested format;

Republic of the Philippines


DEPARTMENT OF JUSTICE
NATIONAL PROSECUTION SERVICE
Office of the Secretary
Padre Faura St., Ermita, Manila

________________,
Complainant-Appellant,
- versus For: ______________
________________,
Respondent-Appellee.
x - - - - - - - - - - - - - - - - - - - - - - - - -x

PETITION FOR REVIEW

COMES NOW, the undersigned petitioner, unto this Honorable Office


respectfully avers:
1. That on _________ the undersigned Chief of Police of ____(state the
unit and postal address)_______ upon complaint of the private offended party
filed a case against _____(state the name and postal address of the respondent)_
for ___(designation of offense)__ docketed under IS No.____before the Office of
Honorable _________ located in ______ where the preliminary investigation took
place;
2. That for the information of the Honorable Secretary this case
started ___(give the concise facts of the case)
3. That on _____(date)___ the undersigned received the Resolution of
the Honorable Prosecutor copy of which is attached as Annex A disposing the
case as follows:
Note: Copy the dispositive portion of the resolution.
4. That the undersigned ______(pls give ur analysis how the Prosecutor
disposed the case) ___.
5. That with due respect to the Honorable Prosecutor, the undersigned
believed that he committed error on the following:
Note: Cite now the matters that adversely affect your case
specifically pinpointing the law that supports your position

6. Attached as integral part of this petition are the following:


a) Proof of service of this Petition to the Honorable Prosecutor (Annex B)
b) Proof of service of this Petition to the Appellee
c) Other Records of the Case
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WHEREFORE, the undersigned respectfully prays for the setting


aside of the appealed resolution of Prosecutor __________ dated _____and that
the honorable prosecutor be directed to file information (blah blah cite now the
relief that you want if you have any)_____

Other reliefs just and equitable are likewise prayed for.


____Place________. ____Date_____.
______________________
Chief of Police

VERIFICATION

JURAT

Copy furnished:
- Prosecutor
- Respondent

The more bloody discussion is on appeal of Resolutions arising from


Inquest Proceedings. During inquest, the prosecutor may recommend for the
release of the respondent. However his recommendation is subject to approval
by the head prosecutor who, in the natural course of events, acts on the
recommendation only after the lapse of 3 days. Pending approval of the
recommendation, does the respondent be released by the PNP so as to avoid
arbitrary detention charges? The answer is NO. The officer having custody of
the detainee must wait for the Order of Release served upon him.

Although we have a principle in law that interpretations of the law must


tend to benefit the person in custody, in the case of LADLAD VS VELASCO et al
(GR No. 172070-72 promulgated June 1, 2007), Section 9 of DOJ Circular No.
61 (new Rules on Inquest) in relation to section 7 of Rule 112 (Preliminary
Investigation) was discussed and the Supreme Court seems to suggest that the
PNP should not release the respondent pending approval of the
recommendation by the Head Prosecutor. If the recommendation to release the
respondent is approved because the arrest is not in accordance with the rules
of warrantless arrest but the case itself is meritorious, the Order of Release
shall be served on the officer having custody of the detainee; and, the Order to
submit counter-affidavit will be served to the respondent so that the regular
preliminary investigation will proceed. The Resolution in the regular
preliminary investigation will be the subject of petition for review and not the
resolution in Inquest Proceeding pursuant to the case of LEVISTE vs ALAMEDA
GR No. 182677 promulgated Aug. 3, 2010.
If the Prosecutor dismisses the case subject of inquest, the course of
action is not to appeal but to file again the case curing the defect of the
complaint.
Hope, this write-up helps our front liners.

About the Author:


PSI GARRY FRANCO CAETE PUASO is a member of the BAR who hails from
San Isidro, Northern Samar. He was formerly assigned with the Northern Samar
Police Provincial Office where he was designated as Special Operations Group
team leader, Police Investigator and DOJ authorized Prosecutor for ten years. He
studied law in University of Eastern Philippines, Catarman, Northern Samar and
joined the PNP-Legal Service thru Lateral Entry after passing the 2008 Bar
Examinations.
The above discussion is his insight on a common predicament faced by police
front-line investigators.
He topped the Order of Merit for Papa Company during the PSOBC Class 2010109, Class Dakila, conducted at Camp Vicente Lim, Canlubang, Calamba City,
Laguna.
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Currently, he oversees the LS Legal Advice 24/7 Office and the big brother
behind the advisory messages sent to Investigators nationwide. He also
supervises the PNP Legal Service Website.

Last Updated (Wednesday, 25 July 2012 02:25)