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DEPARTMENT OF JUSTICE

Revised

MANUAL
for

PROSECUTORS
2
Revised Manual for Prosecutors
CONTENTS

FOREWORD........ 19

ACKNOWLEDGMENT.... 21

PART I: PROSECUTION OF OFFENSES...... 23

I. GENERAL PRINCIPLE 23

II. DEFINITION OF TERMS.... 23

III. GENERAL RULES.... 26

A. COMPLAINT.... 26

1. Form of the Complaint Filed Before the Prosecutors Office.. 26


2. Policy on Forms of Complaint Filed With the Prosecutors Office 26
3. Persons Authorized to File Complaints... 27
4. Law Enforcement Officers/Public Officers Authorized to File
Criminal Complaints.. 29
5. Institution of Criminal Action; How and Where Commenced 30
6. Place Where Criminal Action is to be Instituted. 30
7. Who Prosecutes Criminal Actions.. 31

B. INFORMATION. 31
1. The Information Need Not be Under Oath; Matter Which a
Prosecutor Must Certify Under Oath in the Information. 32
2. Contents of the Caption of an Information.. 32

C. RULES COMMON TO BOTH A COMPLAINT


AND AN INFORMATION.. 32

1. Sufficiency of a Complaint or an Information. 32


a. The name of the accused.. 32
b. The designation of the offenses committed.. 33
Examples of Conclusions of Law. 33
Examples of Averments of Ultimate Facts. 34
c. The cause of the accusation 35
d. Place where the offense was committed. 35
e. Date of the commission of the offense. 36
f. Name of the offended party. 36

2. Other Essential Matters to be Alleged in the Complaint


or Information 36
3. Number of Offenses Charged. 37

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4. Title of the Complainant or Information 37
5. Qualifying and Generic Aggravating Circumstances; To be
Alleged ad Proved. 38
6. List of Prosecution Witnesses.. 38
7. Amendment of the Complaint or Information 38
a. Before the accused pleads 38
b. After the accused pleads 38
c. During the trial. 39
8. Amendment by Substitution. 39
a. Requisites for the substitution of a defective information
with the correct one.. 39
9. Prescriptive Period; How Computed and Interrupted. 40
a. For an offense penalized under the Revised Penal Code. 40
b. For violation of a special law or ordinance. 40
c. For cases falling within the jurisdiction of the Katarungan
Pambarangay 41

IV. RELEVANT JURISPRUDENCE.. 41

PART II: INQUEST 44

I. GENERAL RULES. 44

A. Concept. 44
B. Coverage.. 44
C. Designation of an Inquest Prosecutor 44
D. Venue of Inquest Cases 44
E. Date and Time of the Conduct of Inquest Proceedings. 45

II. PROCEDURE.. 45

A. COMMENCEMENT OF THE INQUEST PROCEEDINGS.. 45


1. When Commenced. 45
2. Documents Required in Specific Cases 45
3. Incomplete Documents 48
4. Instances Where the Presence of the Detained Person is
Dispensed With. 48
5. Charges and Counter-charges.. 48
6. Determination of the Arrest by the Inquest Prosecutor Meaning
Of Probable Cause in Inquest Cases.. 48
7. Where Arrest of the Detained Person Was Not
Properly Effected... 49
8. Where the Arrest of the Detained Person Was Properly
Effected.. 50

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B. INQUEST PROPER 50
1. Contents of the Information.. 51
2. Action to be Taken When There is an Absence of
Probable Cause.. 51
3. Action to be Taken When the Arrested Person Executes a
Waiver of Article 125 of the Revised Penal Code. 52
4. Posting of Bail by the Arrested/Detained Person.. 52
a. If offense is bailable 52
b. If offense if non-bailable. 52
5. Termination of Inquest Proceedings 52

III. OTHER MATTERS.. 53

A. Presence of the Inquest Prosecutor at the Crime Scene.. 53


B. Sandiganbayan Cases.. 54
C. Absence or Unavailability of the Inquest Prosecutor 54
D. Recovered Articles 54
1. Responsibility of the Inquest Prosecutor 54
2. Deposit of Recovered Articles/Properties.. 55
E. Release of Recovered Articles 55

IV. RELEVANT JURISPRUDENCE.. 55

V. HELPFUL HINTS. 57

TEMPLATES OF INQUEST FORMS. 59

NPS Investigation Form No. 01, s. 2008- Investigation


Data Form 60
NPS INQ Form No. 01, s. 2008 Order to Submit
Additional Evidence/ Documents.. 62
NPS INQ Form No. 02, s. 2008 Release Order of
Detained/Arrested Person. 64
NPS INQ Form No. 03, s. 2008 Subpoena to Respondents.. 66
NPS INQ Form No. 04, s. 2008 Request for Preliminary
Investigation and Waiver of Article 125,
Revised Penal Code 67
NPS INQ Form No. 05, s. 2008 Certification 68
NPS INQ Form No. 06, s. 2008 Release Order of
Recovered Articles.. 69
NPS INQ Form No. 07, s. 2008 - Request for Release
with Undertaking 71

FLOWCHART OF THE INQUEST PROCEEDINGS.. 73

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PART III: SUMMARY INVESTIGATION 74

I. GENERAL RULES. 74

A. Concepts and Principles 74


B. Coverage 74

II. PROCEDURE. 76

PART IV: PRELIMINARY INVESTIGATION. 77

I. GENERAL RULES 77

A. Concepts and Principles. 77


B. Nature of a Preliminary Investigation 77
1. It is an Executive Function.. 77
2. It is Preliminary in Nature 77
3. It is a Summary and Inquisitorial Proceeding.. 77
4. It is a Judicial Inquiry or Proceeding. 78
C. Right to a Preliminary Investigation 78
1. It is Not a Constitutional Right.. 78
2. It is Merely a Statutory Grant. 78
3. It is a Personal Right 78
4. It is a Substantive Right.. 79
D. Coverage.. 79
E. Quantum of Evidence Required. 79
1. Probable Cause Defined. 79
2. No Fixed Formula for Detemining Probable Cause 80
3. Sound Discretion of the Prosecutor. 80
F. Purposes of the Conduct of a Preliminary Investigations 81
G. Officers Authorized to Conduct Preliminary Investigations.. 81

II. PROCEDURE 83

A. Commencement of the Preliminary Investigation.. 83


a. Contents of the Complaint.. 84
b. Number of Copies of Affidavits; Other Requirements. 84
B. Initial Action by the Investigating Prosecutor on the
Complaint Filed. 85
C. Service of the Subpoena Together with the Complaint and
Supporting Affidavits and Other Documents to the Respondent/s. 86
1. To Prevent Loss of Documents. 86
2. Service to a Respondent Residing in a Distant Place 87

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3. Where Respondent Cannot be Subpoenaed or if Subpoenaed
Does not Submit Counter-Affidavit... 87
4. Objects as Evidence 87
5. Guidelines to be Observed in the Service of Subpoenas. 87
D. Submission of the Counter-affidavits by the Respondent/s. 88
1. Extension of Time Within Which to Submit
Respondents Counter-Affidavit.. 89
2. Filing of a Motion to Dismiss, Memorandum or Motion
in Lieu of a Counter-Affidavit 89
a. General Rule.. 89
b. Exceptions.. 90
3. Effect of the Filing of a Motion to Dismiss or a Motion for a
Bill of Particulars and Other Similar Pleadings. 90
4. Action on Motions to Dismiss on the Basis of an Affidavit of
Desistance.. 90
5. Suspension of Proceedings Due to the Existence of a
Prejudicial Question. 91
a. Concept of a Prejudicial Question 91
b. Elements of a Prejudicial Question. 91
c. Issuance of an Order Suspending the Proceedings Due
To the Existence of a Prejudicial Question; Written Approval
Of the Head of Office Required 91
E. When to Set Case for Clarificatory Questioning.. 92
1. No right to Examine or Cross-Examine.. 92
2. Records/Notes During the Clarificatory Hearing.. 92
3. No Right to Counsel 92
F. Reply-Affidavits, Rejoinders and Memoranda;
When to Allow the Filing Thereof 93
G. When Complaints May be Consolidated. 93
H. Actions on Motions to Disqualify/Inhibit... 94
I. Submission of the Case for Resolution. 94
J. Preparation of the Resolution 94
1. When There is Lack of Probable Cause 94
2. When There is a Finding of Probable Cause. 94
3. Form of the Resolution and Number of Copies.. 95
a. Caption of Resolution 95
b. Names of Parties.. 95
c. Case Number.. 96
d. Designation of Offense/s Charged. 97
e. Contents of the Body of the Resolution.. 97
f. Parts of a Resolution. 97
g. Parties Who Need to be Furnished a Copy of the Resolution.. 98
h. Signatures and Initials of Investigating Prosecutor.. 98
4. Period to Conduct the Preliminary Investigation 99

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Revised Manual for Prosecutors
5. Written Approval Required in the Dismissal of a Complaint or
The Filing of an Information in Court.. 99
K. Transmittal of the recommendatory Resolution and Information
Together with the Complete Record of the Case. 99
1. Preparation of the Information and its Contents.. 99
a. Lack of Certification.. 100
b. Designation of offense not binding upon the court.. 100
2. Recommended Bail; How Written. 101
3. Documents to be Attached to the Information 101
L. Action of the Chief State/Regional State/Provincial/City Prosecutor
On the Recommendatory Resolution.. 101
M. Re-opening of the Preliminary Investigation.. 102
N. Promulgation of the Resolution;Modes of Service 102
O. Filing of the Information in Court;Rules to Follow.. 103
P. Action on a Motion for Reconsideration 103
Q. Action on a Reinvestigation.. 103
1. Instances Where a Reinvestigation May be Conducted 104
a. Pursuant to a court order for cases already filed in court 104
b. Pursuant to an order or directive from the
Regional State Prosecutor or the Secretary of Justice 104

III. RELEVANT JURISPRUDENCE 105

TEMPLATES & SAMPLE FORMATS USED IN THE


CONDUCT OF THE PRELIMINARY INVESTIGATIONS 107

NPS INV Form No. 01, s. 2008 Investigation Data Form.. 108
NPS INV Form No. 02, s. 2008 Resolution Dismissing
The Complaint 110
NPS INV Form No. 03, s. 2008 Subpoena to Complaint 112
NPS INV Form No. 04, s. 2008 Subpoena to Respondent/s 113
NPS INV Form No. 05, s. 2008 Subpoena to Respondent to
Obtain Copies of the Complaint
And Other Supporting Evidence 114
NPS INV Form No. 06, s. 2008 Order Suspending the
Preliminary Investigation Proceeding
Due to a Prejudicial Question. 115
NPS INV Form No. 07, s. 2008 Subpoena for
Clarificatory Hearing 116
NPS INV Form No. 08, s. 2008 Order of Consolidation 117
NPS INV Form No. 09, s. 2008 Regional Order Designating a
Prosecutor to Conduct the Preliminary Investigation.. 118

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Revised Manual for Prosecutors
Sample Resolution. 119
Sample Information 1. 123
Sample Information 2. 125
Sample Information 3. 127
Sample Information 4 129

NPS SAMPLE FORMAT A, s. 2008 - Order for the


Submission of Memoranda. 131
NPS SAMPLE FORMAT B, s. 2008 Certification 133

FLOWCHART OF THE PRELIMINARY INVESTIGATION PROCESS


Flowchart 1 134
Flowchart 2.. 135
Flowchart 3.. 136

PART V: ARRAIGNMENT AND PLEA 137

I. GENERAL RULES 137

A. Principles.. 137
B. Concepts 137

II. PROCEDURE 137

A. Duties and Trial Prosecutor 137


1. Before the Arraignment of the Accused.. 137
2. During the Arraignment . 138
3. After the Arraignment 138
B. Effect of the Filing of a Petition for Review 138
C. Applicable Rules in Cases Where the Accused Pleads Guilty
To a Lesser Offense. 139
D. When a Plea of Guilty to a Lesser Offense Not Allowed. 139
E. When Accused Pleads Guilty to a Capital Offense. 139

III. RELEVANT JURISPRUDENCE. 139

PART VI: PRE-TRIAL. 140

I. CONCEPT. 140

II. SUBJECT MATTERS OF A PRE-TRIAL CONFERENCE. 140

A. Plea Bargaining.. 140


B. Stipulation of Facts.. 140
C. Marking for identification of Evidence of the Parties 141

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Revised Manual for Prosecutors
D. Waiver of Objection to the Admissibility of Evidence.. 141
E. Modification of the Order of Trial 141
F. Such Other Matters. 141

III. NON-APPEARANCE AT THE PRE-TRIAL CONFERENCE. 141

IV. DUTIES OF THE PROSECUTOR AT THE


PRE-TRIAL CONFERENCE. 141

A. Before the Pre-trial Conference. 141


B. During the Pre-trial Conference.. 141
C. After the Pre-trial Conference. 142

V. RELEVANT JURISPRUDENCE 142

PART VII: BAIL. 143

I. CONCEPTS.. 143
A. Purpose of Bail 143
B. Nature of the Right to Bail.. 143
C. Basis of Bail.. 143
D. When Bail Not Required.. 143

II. DUTIES OF THE PROSECUTOR. 144


A. When Bail is a Matter of Right 144
B. When Bail is a Matter of Discretion 145
C. Right to Notice, Mandatory. 145
D. Right to Bail in Inquest Cases 146
E. Guidelines in Recommending Bail.. 146
F. Criteria in Recommending the Amount of Bail 146
G. Rules in Computing the Bail to be Recommended. 147
H. Hearing on Petition for Bail in Non-Bailable Offenses 149
I. Exception to the Rule on Non-Bailable Offenses 149
J. Right of the Prosecution to Present all Evidence During the
Bail Hearing. 149
K. Effect of a Denial of the Opportunity to Present Evidence for
Purposes of the Petition for Bail. 149
L. Petition for Bail in Continuous Trial. 149
M. Cancellation of the Bail Bond 150

III. OTHER MATTERS.. 150


A. Release on Recognizance; Guidelines.. 150
B. Requirements for the Grant of recognizance
Under R.A. No. 6036 150

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Revised Manual for Prosecutors
IV. RELEVANT JURISPRUDENCE. 151

PART VIII: ARREST 152

I. Remedy of the Prosecutor When no Warrant of Arrest was


Issued by the Judge.. 152

II. Request for a copy of the Return.. 152

III. Relevant Jurisprudence.. 152

PART IX: TRIAL 153

I. GENERAL RULES 153

A. Concept.. 153
B. Coverage. 153

II. TRIAL PREPARATION 153

A. Preparation of the Trial Brief. 153


B. Order of Presentation of Witnesses 153
C. Offer of Exhibits 154
D. Defense Evidence.. 154
E. Discharge of Accused to be State Witness.. 154
F. Admission to the Witness Protection Program of an Accused
Who Has Been Discharged.. 155
G. Other Persons Who May Avail of the Witness Protection Program.. 155
H. Motions for Postponement by the Accused. 156
I. Discontinuance of Proceedings. 156
J. Presentation of evidence.. 156

III. PROCEDURE... 157

A. Continuous Trial until Terminated.. 157


B. Order of Trial. 157
C. Presentation of Witnesses. 158
D. Conditional Examination of Witness for the Prosecution.. 159
E. Cross-Examination of the defense Witness 159
F. Rebuttal Evidence. 159
G. Request for Subpoena. 159
H. Custody of Physical and Real Evidence Pending Trial . 159

IV. RELEVANT JURISPRUDENCE.. 160

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Revised Manual for Prosecutors
PART X: APPEAL/PETITION FOR REVIEW. 162

I. GENERAL RULES 162

A. What May be Appealed.. 162


B. Venue for the Filing of the Appeal/Petition for Review... 162
C. Period to File the Appeal/Petition for Review.. 162
D. Form and Contents.. 163
E. Documentary Attachments.. 163
F. Effect of Failure to Comply with the Requirements.. 164
G. When an Information has Been Filed in Court 164
H. When Accused/Appellant is Arraigned During the
Pendency of the Appeal/Petition for Review. 164
I. Appellees Comment 164
J. Summary Action 164
K. Withdrawal of the Appeal/Petition for Review. 164
L. Motion for Reinvestigation Pending Appeal.. 165
1. When an Information Has Not Yet Been Filed in Court.. 165
2. When an Information Has Been Filed in Court 165
M. Disposition of the Appeal/Petition for Review. 165
N. Motion for Reconsideration. 166
O. Effect of Filing the Appeal/Petition for Review 166

II. RELEVANT JURISPRUDENCE.. 166

PART XI:MISCELLANEOUS MATTERS.. 168

I. HOLD DEPARTURE ORDERS AGAINST ACCUSED PERSONS.. 168

II. CANCELLATION OF TRAVEL DOCUMENTS.. 168

III. HANDLING OF CRIMINAL COMPLAINTS FILED


AGAINST PUBLIC OFFICERS AND EMPLOYEES. 169

IV. NOTIFICATION OF PROSECUTOR OF THE FILING OF


AN APPLICATION FOR PROBATION.. 169

A. Comment on the Application for Probation 169


B. Release of Applicant for Probation. 170
C. Objection to the Grant of Probation 170
D. Hearing for Revocation of Probation. 171

V. PROCEDURE IN CASES INVOLVING CHILDREN 171

A. Inquest Proceedings. 171

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Revised Manual for Prosecutors
1. If the Child is the Complainant. 171
2. If the Child is the Suspect. 172
3. Guidelines in the Conduct of all Inquest Proceedings Involving
A Child 173
B. Preliminary Investigations.. 174
1. If the Child is the Victim.. 174
2. If the Child is the Respondent.. 175
C. Protective Custody of the Child 175
D. Termination of Inquest/Preliminary Investigation 175

VI. PROCEDURE INVOLVING VICTIMS OF TRAFFICKING IN PERSONS


AND VIOLENCE AGAINST WOMEN AND THEIR CHILDREN 176
A. Preliminary Investigation.. 176
B. Evidence Gathered/Built-up by the Law Enforcer; Need to Check 177
C. Prosecution Guidelines.. 178

VII. PROCEDURE FOR THE FILING OF A PETITION FOR CERTIORARI


THROUGH THE OFFICE OF THE
CHIEF STATE PROSECUTOR 178
A. When to File Petition for Certiorari.. 178
B. Coverage.. 178
C. Period to File the Petition.. 178
D. Action to be Taken by the Trial Prosecutor. 179
E. Action of the Chief State Prosecutor. 180

VIII. HANDLING OF ENVIRONMENTAL CASES 180

A. REVISED FORESTRY CODE (PD 705). 180


1. Evidence Required. 180
2. Pointers 182

B. TOXIC SUBSTANCES AND HAZARDOUS WASTE ACT


(R.A. No. 6969). 183
1. Evidence Required. 183

C. PEOPLES SMALL SCALE MINING ACT (R.A. No. 7076)... 183


1. Evidence Required. 183

D. PHILIPPINE MINING ACT (R.A. N0. 7942).. 183


1. Evidence Required. 183
2. Pointers 184

E. CLEAN AIR ACT (R.A. 8749). 184


1. Pointer.. 184

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Revised Manual for Prosecutors
F. ECOLOGICAL SOLID WASTE MANAGEMENT ACT (RA 9003). 185
1. Pointer. 185

G. WILDLIFE CONSERVATION AND PROTECTION ACT


(R.A. No. 9147).. 185
1. Evidence Required.. 185

H. CHAINSAW ACT (R.A. No. 9175). 187


1. Evidence Required. 187

I. CLEAN WATER ACT (R.A. No. 9275). 187


1. Evidence Required.. 187
2. Pointer 188

IX. PROSECUTION OF MONEY LAUNDERING CASES 188


A. General Rules 188
B. Duties of the Prosecutor. 189

SPECIAL SECTION ON PROSECUTING HUMAN RIGHTS VIOLATIONS


AND PROVIDING AVAILABLE REMEDIES THEREFOR... 191

I. IN GENERAL 192

A. Structure.. 192
B. Summative Checklist. 192

II. PROSECUTING CASES OF TORTURE. 198

A. Background 198
Definition.. 198
B. Dealing with Torture Under Substantive Law 199
1. Unconstitutionality.. 199
2. Direct Criminal Prosecution for Maltreatment of Prisoners
(Article 235, Revised Penal Code). 199
3. Separate and Simultaneous Criminal Actions 200
4. Prosecution Under the Human Security Act (R.A. No. 9372) 206
5. Resort to Generic Remedies for Human Rights Violations 206
C. Dealing with Torture Under Procedural Law. 207
1. Inadmissibility in Evidence Under the Constitution. 207
2. Detection of Torture at the Inquest Stage 207
3. Treatment of Torture at the Trial Stage 208

III. PROSECUTING CASES OF ENFORCED DISAPPEARANCE.. 209

A. Background.. 209

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B. Remedies Available Under Ordinary Actions.. 210
1. Availment of Generic Remedies for Human Rights Violations. 210
2. Criminal Actions. 210
C. Remedies Available for Information Gathering.. 211
1. Rationale... 211
2. Right to Information; extent thereof. 212
3. Right to Information; Limitations Thereto 213
4. Availing of the Rule on the Writ of Habeas Data
(A.M. No. 08-1-16-SC, January 22, 2008). 214
D. Remedies Available for Compelling Official Action or Response.. 218
1. Rationale.. 218
2. Availing of the Rule on the Writ of Habeas Corpus
3. (Rules of Court, Rule 102).. 219

4. Availing of the Rule on the Writ of Amparo


(A.M. No. 07-9-12-SC, October 24, 2007).. 222

IV. PROSECUTING CASES OF EXTRA LEGAL KILLING.. 227


A. Background. 227
B. Availing of the Writ of Amparo as a Protective Measure 228
C. Remedies Available for Information Gathering. 229
D. Availment of Generic Remedies for Human Rights Violations.. 229
E. Prosecution under the Human Security Act. 230
F. Criminal Actions.. 230

V. PROSECUTING CASES OF INVOLUNTARY DISPLACEMENT. 231


A. Background. 231
B. Guidelines in the Delimitation of the Right of Abode and Right
To Freedom of Movement.. 232
C. Remedies Available for Violation 232
1. Action for Damages Under the Generic Remedies for
Human Rights Violations 232
2. Criminal Action for Expulsion (Art. 127, Revised Penal Code).. 233
3. Criminal Action for Grave Coercion
(Art. 286, Revised Penal Code) 233

VI. GENERIC REMEDIES FOR HUMAN RIGHTS VIOLATIONS.. 233


A. Present Context 233
B. Action for Damages under the Civil Code (Article 32) 234
1. Nature and Quantum of Evidence Required 234
2. By Whom Filed. 234
3. Against whom Filed.. 234
4. Grounds to be Alleged (Elements of Cause of Action)... 234
5. Relief That May be Granted.. 235

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C. Filing a Claim Before the Boards of Claims of the Department of Justice
Under the Victim Compensation Act (R.A. No. 7309). 236
1. Legal Basis 236
By Whom Filed. 236
Procedure for Filing Claims 236
Procedure for Processing of Claims 237
Time Period 238
Relief That May be Granted 238

SPECIAL SECTION ON PROSECUTING VIOLATIONS OF THE NATIONAL


INTERNAL REVENUE CODE (NIRC) & RELATED LAWS. 239

I. POINTERS IN THE PROSECUTION OF TAX CASES 240

II. INSTITUTION OF CRIMINAL CASES. 241


A. Prosecution of Criminal Actions.. 241
B. Bail 241
C. Pre-Trial. 241

III. COMMON TAX OFFENSES (UNDER THE NIRC).. 241


A. Sec. 254, Attempt to Evade or Defeat Tax 241
1. Elements of Sec. 254.. 241
2. Tax Evasion Connotes the Integration of Three Factors. 242
3. Documentary Evidence Required 242

B. Sec. 255. Failure to File return, Supply Correct and Accurate Information,
Pay Tax Withheld and Remit Tax and Refund Excess Taxes Withheld on
Compensation 244
1. Elements of Sec. 255. 244
2. Documentary Evidence Required. 244
3. Expenditure Method/Net Worth Method. 245
4. Revised Penal Code Provision on Malversation to Willful
Failure to Remit 245
5. Art. 222 Officers Included. 246

C. Sec. 257 (B) (8) Knowingly Use Face Certificate Authorizing


Registration. 246
1. Elements of Sec. 257 (B)(8).. 247
2. Documentary Evidence Required.. 247
3. Revised Penal Code Provision on falsification in Relation to
Sec. 257 (b)(8) of the NIRC 248

D. Sec. 258. Unlawful Pursuit of Business. 249


1. Elements of Sec. 258.. 249
2. Documentary Evidence Required 249

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E. Sec. 267. Declaration Under Penalties of Perjury 250
1. Elements of Sec. 267 250
2. Documentary Evidence Required.. 250

F. Sec. 236 (J), last par. Securing More Than One TIN.. 251
1. Elements of Sec. 236 (J) 251
2. Documentary Evidence Required 252

IV. RELEVANT JURISPRUDENCE IN ESTABLISHING INTENT AND


WILLFULNESS IN TAX CASES. 252

A. Intent/Willfulness in Criminal Law. 252


B. Philippine Jurisprudence on Intent/Willfulness in Tax Cases.. 253
1. Supreme Court Decisions.. 253
2. Court of Tax Appeals Decisions. 257
3. Regional Trial Court (RTC) Decisions 259
C. Challenges in Proving Intent and Willfulness in Tax Cases 260
D. Proof of Willfulness in U.S. Jurisprudence. 261
1. Proof of Willfulness Failure to File Returns 261
2. Proof of Willfulness Attempt to Evade or Defeat Tax 261

V. TEMPLATES OF TRIAL BRIEFS. 267

A. Sec. 254. Attempt to Evade or Defeat Tax. 267


B. Sec. 255. Failure to File Return, Supply Correct and Accurate
Information, Pay Tax Withheld and Remit Tax and Refund Excess
Taxes Withheld on Compensation 272
C. Sec. 257 (B)(8) knowingly Use Fake Certificate Authorizing
Registration.. 276
D. Sec. 258. Unlawful Pursuit of Business.. 281
E. Sec. 267. Declaration Under Penalties of Perjury 285
F. Sec. 236(J). securing More Than One TIN. 289

SAMPLE FORMATS.. 293

NPS Sample Format No. C Motion for the Issuance of a


Hold-Departure Order) 294
NPS Sample Format No. D-1 Memorandum for the Secretary of
Justice through the Chief State/Regional State/Provincial/City
Prosecutor for the Cancellation of Passport/Travel Document
Of an Accused Who Jumped Bail and Has Fled the Country).. 296
NPS Sample Format No. D-2 - Letter to the Secretary of Foreign
Affairs for the Cancellation of Passport/Travel Document of
An Accused Who Jumped Bail and has Fled the Country.. 297

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Revised Manual for Prosecutors
APPENDICES

Appendix A D.O. No. 39, s. 2007 Rules on Inquest with Respect


to Children in Conflict with the Law as Defined Under RA 9344
Otherwise Known as the Juvenile Justice and Welfare Act
of 2006 300

Appendix B D.C. No. 46, s. 2003 Automatic Review of Dismissed


Cases Involving RA 9165 (Comprehensive Dangerous Drugs
Act of 2002)... 303

Appendix C - D.O. No. 318, s. 1991 Defining the Authority, Duties


And Responsibilities of Regional State Prosecutors. 304

Appendix D D.O. No. 54, s. 1992 Amending D.O. No. 318, s. 1991
by Specifying the Instances Where a Regional State Prosecutor
can Designate an Acting City or Provincial Prosecutor to Handle
the Investigation/Prosecution of a Particular Case.. 308

Appendix E D.C. No. 50, s. 2000 (Specifying Aggravating and


Qualifying the Instances in all Informations or
Complaints Filed in Court). 309

Appendix F D.C. No. 47, s. 2000 (Preparation of a Trial Guide).. 311

Appendix G D.C. No. 26, s. 2008 (Jurisdiction to Conduct Preliminary


Investigation of Cases Against Public Officers/Employees.. 313

Appendix H Guide for Media Practitioners on the Reporting


And Coverage of Cases Involving Children. 316

Appendix I Participants of the Validation Sessions.. 324

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Revised Manual for Prosecutors
FOREWORD

It was in 1996 that the first Manual for Prosecutors of the Department of Justice was issued
as a unified guide for prosecutors in their day-to-day services to the public. In the ensuing years,
the Rules on Criminal Procedure had undergone revisions, several special Laws were enacted, and
various jurisprudence emerged, thus, affecting the work of the Prosecutors. Yet, the Manual
remained as it was in 1996. The need to revisit the Manual to keep it attuned to recent
developments in law and procedure is the prime consideration for those involved in this project.

This Manual will provide for the procedural guidelines that will standardize investigative
and prosecutorial work in the National Prosecution Service in a unified and simplified manner.

I thank all those who have labored and partnered with the Department for the
development and production of this Manual. May you continue with such noble work for the
Filipino people, and may more join you in efforts to strengthen the Department as an institution
and the justice system as a whole.

To all DOJ prosecutors and prosecution attorneys, this is your Manual. A lot of hard work,
time and resources went into it to make sure that it is comprehensive enough to cover the
peculiarities of your work, while being a user-friendly reference to you.

It is my hope that this would help you in the discharge of your sworn duty to the people
and ultimately improve the administration of justice in our country.

RAUL M. GONZALEZ
Secretary of Justice

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Revised Manual for Prosecutors
Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN
Department of Justice
Manila
05 October 2007
DEPARTMENT ORDER NO. 844
SUBJECT: DESIGNATION OF PERSONNEL

In the interest of the service and pursuant to the provisions of existing laws, the following
prosecutors are hereby constituted as members of the Technical Working Group (TWG) in
connection with the preparation of the: 1)Systems and Procedure Manual for the National
Prosecution Service and 2) Prosecutors Manual, to wit:

SSP PURITA MERCADO-DEYNATA - Chairperson


RSP ANTONIO B. ARELLANO - Co-Chairperson
RSP NONNATUS CAESAR R. ROJAS - Member
CP JACINTO G. ANG - Member
CP LORNA T. LEE - Member
SSP ROSALINA P. AQUINO - Member
SSP MA. EMILIA L. VICTORIO - Member

The Technical Working Group, which shall be under the direct supervision of Chief State
Prosecutor Jovencito R. Zuo and assisted by ACSP Miguel F. Gudio, Jr. and ACSP Richard
Anthony D. Fadullon, shall be charged with the review and assessment of existing policies;
formulation and development of policy recommendations; oversee the progress of the manuals
preparation; and conduct the evaluation and validation of said manuals nationwide in
coordination with the DOJ Management Services Office (MSO).

The Technical Working Group shall be assisted by a Secretariat, the members of which are
the following:

Corazon S. Navarrete - Dept. Legislative Liaison Specialist


Eleanor P. Singson - Dept. Legislative Liaison Specialist
Imelda A. Ballesteros - Dept. Legislative Liaison Specialist
Evangeline C. Cruz - Stenographic Reporter IV
Support services, particularly the Administrative Service and the Finance and
Management Service shall extend the necessary assistance to the Technical Working Group.

This Department Order shall take effect immediately and shall remain in force until
further orders.

(Sgd.) AGNES VST DEVANADERA


Acting Secretary
Copy furnished:
All concerned.

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Revised Manual for Prosecutors
ACKNOWLEDGMENT

There are so many to thank for their involvement in this project.

Foremost, the distinguished institutions and individuals who, by their support and
cooperation, have made the revision of the Manual for Prosecutors and the drafting of the
Handbook on Administrative Case Management possible: the USAID represented by Mr. Gerardo
Porta, Senior Civic Participation Specialist; USAID-ROLE represented by Atty. George V.
Carmona, Chief of Party, ROLE and Atty. Redentor Buban; The Asia Foundation represented by
Dr. Steven Rood, Country Representative, Atty. Carolyn A. Mercado, Sr. Program Officer, Atty.
Damcelle Torres-Cortes, Program Officer and Ms. Michelle H. Domingo, Assistant Program
Officer; MCA-PTP represented by Mr. Benjamin Allen, Chief of Party and Atty. Noel del Prado;
and the ADB represented by Mr. Jaseem Ahmed, Director, Governance, Finance & Trade Division,
Ms. Debra Kertzman, Mr. Joven Z. Balbosa, Mr. Thatha Hla and Atty. Christine Lao.

Individuals whose efforts as consultant-writers have contributed to the success of this


undertaking: Atty. Gregorio A. Arizala, consultant for the Revised Manual for Prosecutors; Atty.
Nilo C. Mariano and Mr. Ruben Canlas Jr., consultants for the Handbook on Administrative Case
Management; Atty. Eric Joseph Mallonga, consultant for the special section on Prosecuting
Human Rights Violation and Providing Available Remedies Therefor; Atty. Victor Mamalateo and
Atty. Giovanni Vallente, consultants for the special section on Prosecuting Violations of the
National Internal Revenue Code ad Related Laws.

The professional guidance, ideas, enlightenment, encouragement and support given by


Secretary Raul M. Gonzalez, Chief State Prosecutor Jovencito R. Zuo, Assistant Chief State
Prosecutor Severino H. Gaa, Jr., Assistant Chief State Prosecutor Miguel G. Gudio, Jr., Assistant
Chief State Prosecutor Pedrito L. Rances and Assistant Chief State Prosecutor Richard Anthony
D. Fadullon should be acknowledged.

The critical job of reviewing, rationalizing and updating the old Manual and presenting
the matrices during the validation sessions and the round table discussion were diligently and
skillfully done by a technical working group (TWG): Chairperson SSP Purita Mercado-Deynata,
Co-Chairperson RSP Antonio B. Arellano, and members RSP Nonnatus Caesar R. Rojas, CP
Jacinto G. Ang, CP Lorna T. Lee, SSP Rosalina P. Aquino and SSP Ma. Emilia Lucena-Victorio
(please refer to D.O. No. 844, s. 2007 on the previous page, and Appendix I on p. 322 of this
Manual).

This Manual was initially made possible through the Organizational Development
Program for the National Prosecution Service (NPS) and its component project, the Procedural
Development Project administered by the Management Services Office headed by Director Ma.
Monica P. Pagunsan, assisted by its Planning Staff, Mr. Ryan C. Thomas, Ms. Janet A. Covarrubias
and Ms. Marjorie Tan-delos Santos. These people provided valuable policy research, process
analysis, documentation, technical writing and project management.

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Revised Manual for Prosecutors
Secretariat and other administrative work were effectively and efficiently carried out by
Ms. Eleanor P. Singson, Ms. Corazon S. Navarrete, Ms. Imelda A. Ballesteros and Ms. Evangeline
C. Cruz. They are the staff of Assistant Secretary Teresita R. Domingo who most willingly
committed them for this endeavor.

NPS prosecutors, prosecution attorneys, administrative officers and representatives of the


various agencies (since there are to many of them, attached are the respective lists) have shown
their enthusiasm, attention to detail and correctness which provided valuable inputs during the
consultations and validation sessions. Special mention is however given to Undersecretary Mary
Ann Lucille L. Sering and Atty. Alton C. Durban of the Department of Environment and Natural
Resources (DENR), who provided for specifics in the prosecution of environmental cases.

The Financial and Management Service and Administrative Service have also been very
supportive of the project by providing the necessary funding and logistics.

Lastly, retired Justice Romeo J. Calleja, Sr., a great thinker who, with his expertise and
smart thinking, proffered relevant and distinct suggestions during the round table discussion.

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Revised Manual for Prosecutors
PART I. PROSECUTION OF OFFENSES

I. GENERAL PRINCIPLES

1. The prosecution of cases shall be under the direct control and supervision of the
prosecutor. While he may turnover the actual prosecution of the criminal case to a private
prosecutor, it is necessary that he be present at the trial until the final termination of the
case; otherwise, if he is absent, it cannot be gain said that the trial is under his supervision
and control (Pinote v. Ayco, 477 SCRA 409 [2005]).

2. The trial prosecutor may, at any time, in the exercise of his discretion, take over from the
private prosecutor the actual conduct of the trial.

3. A prosecutor, by the very nature of his office, is under no compulsion to file a particular
criminal Information where he is not convinced that he has evidence to support the
allegations thereof or he is not convinced of the merits of the case (Torres v. Aguinaldo,
461 SCRA 599 [2005]).

4. The prosecution office has no more control over cases filed in court; thus, a motion for
reinvestigation should be addressed to the trial judge (Baltazar v. Pantig, G.R. No. 149111,
August 9, 2005).

5. Once a case has already been filed in court, a trial prosecutor may be compelled to
prosecute the case notwithstanding his personal convictions or opinions. He should
present the case to the best of his ability and let the court decide the merits of the case on
the basis of the evidence adduced by both parties.

II. DEFINITION OF TERMS

1. Arraignment is the formal mode and manner of implementing the constitutional right
of the accused to be informed of the nature and cause of the accusation against him (Sec.
12 [2], 1987 Constitution of the Philippines). An arraignment is necessary in order to fix
the identity of the accused, to inform him of the charge and to give him an opportunity to
plead (14 Am. Jur., p. 939, G.V. Jacinto, Criminal Procedure).

2. Arrest the taking of a person into custody in order that he may be bound to answer for
the commission of an offense (Sec. 1, Rule 113, Revised Rules on Criminal Procedure).

3. Bail is the security given for the release of a person in custody of the law, furnished by
him or a bondsman, to guarantee his appearance before any court as required under the
conditions hereinafter specified. Bail may be given in the form of corporate surety,
property bond, cash deposit or recognizance (Sec. 1, rule 114, Revised Rules on Criminal
Procedure).

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4. Bail bond is an obligation given by the accused with one or more sureties, with the
condition to be void upon the performance by the accused of such acts as he may legally
be required to perform (Villasenor v. Abano, 21 SCRA 312).

5. Complaint a sworn written statement charging a person with an offense, subscribed


by the offended party, any peace officer, or other public officer charged with the
enforcement of the law violated (Sec. 3, Rule 110, Revised Rules on Criminal Procedure).

6. Continued/Continuous/Continuing Crime - is a single crime, consisting of a series


of acts but all arising from one criminal resolution (The Revised Penal Code Criminal
Law, Book One, 15th Ed., Luis B. Reyes, p. 676).

7. Criminal Action - A criminal action is one by which the State prosecutes a person for
an act or omission punishable by law (Sec. 3(b), Rule 1, 1997 Rules of Civil Procedure).

8. Information is a accusation in writing charging a person with an offense, subscribed


by the prosecutor and filed with the court (Sec. 4, Rule 110, supra.).

9. Inquest an informal and summary investigation conducted by a public prosecutor in


criminal cases involving persons arrested and detained without the benefit of a warrant of
arrest issued by the court for the purpose of determining whether or not said persons
should remain under custody and correspondingly be charged in court.

10. Offended Party is the person against whom or against whose property the crime was
committed (Sec. 3, Rule 110, supra) and to whom the offender is civilly liable in light of
Article 100 of the Revised Penal Code that every person criminally liable is also civilly
liable (Garcia v CA, 266 SCRA 678 [1997]); the person actually injured and whose feeling
is offended.

11. Personal Knowledge of Facts (in arrests without warrant)- must be based upon
probable cause which means an actual belief or reasonable grounds of suspicion.

The grounds of suspicion are reasonable when, in the absence of actual belief of
the arresting officers, the suspicion that the person to be arrested is probably guilty of
committing the offense is based on actual facts, i.e. supported by circumstances
sufficiently strong in themselves to create the probable cause of guilt of the person to be
arrested. A reasonable suspicion therefore must be founded on probable cause, coupled
with good faith on the part of the peace officers making the arrest. (Umil,et.al. vs
Ramos, 202 SCRA 251 [1991]).

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Revised Manual for Prosecutors
12. Plea is the reply of the accused to the charge. In criminal prosecution, the accused has
to plead to the indictment, which he may do (1) by pleading to the jurisdiction, that is,
alleging that the court has no jurisdiction to try him; (2) by a demurrer; or (3) by some
plea in bar, either a general plea, guilty or not guilty (Osborns Concise Law
Dictionary, 15th Ed. John Burke, p. 254).

13. Plea Bargaining the process where the accused usually pleads guilty to a lesser
offense, or to only one or some of the counts of a multi-count indictment in return for a
lighter sentence than that for the graver charge (Blacks Law Dictionary, 5th Ed., p. 1037).

14. 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 (Sec. 1, Rule 112,
Revised Rules on Criminal Procedure).

15. Probable Cause (for the purpose of filing an Information) - has been defined as
a reasonable grounds of presumption that a matter is or may be well-founded; such a state
of facts in the mind of the prosecutor as would lead a person of ordinary caution and
prudence to believe, or entertain an honest or strong suspicion, that a thing is so.

16. Probable Cause (as a ground for warrantless arrest) an actual belief or
reasonable grounds of suspicion (People vs. Tudtud, GR No. 144037, Sept. 26, 2003) that
the person to be arrested is about to commit or is attempting to commit a crime, or is in
the act of committing a crime, or has committed a crime, either in the presence or without
the presence of the arresting officer.

17. Recognizance is an obligation of record, entered into before some court or magistrate
duly authorize to take it, with the condition to do some particular act, the most usual
condition in criminal cases being the appearance of the accused for trial (People v. Abner,
87 Phil. 566).

18. Release on Recognizance - the pre-trial release of an arrested person who promises,
usually in writing but without a surety or posting bond, to appear for trial at a later date
(Blacks Law Dictionary, p. 1316).

19. Summary Investigation refers to the investigation conducted by the prosecutor to


determine the existence or non-existence of probable cause in cases that do not require
preliminary investigation (Sec. 8, Rule 112, as amended, Revised Rules on Criminal
Procedure), namely those involving offenses in which the prescribed penalty of
imprisonment does not exceed four (4) years and two (2) months regardless of the fine.

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Revised Manual for Prosecutors
20. Summary Procedure (as distinguished from Summary Investigation) refers
to the court procedure in criminal cases covered by Rule 123 of the Revised Rules on
Criminal Procedure, involving offenses in which the penalty of imprisonment prescribed
by law does not exceed six (6) months, or fine not exceeding one thousand pesos
(Php1,000.00.)

21. Trial is a judicial examination of the claims at issue in a case which is presented by the
prosecution and defense to enable the court to arrive at a judgment pronouncing either
the guilt or innocence of the accused (US v. Raymundo, 14 Phil. 416 [1909]).

III. GENERAL RULES

A. COMPLAINT

1. Form of the Complaint Filed Before the Prosecutors Office

A written complaint file with the Office of the Prosecutor may come in
different forms, to wit:

a. A referral letter from the law enforcement agency;

b. An affidavit of the offended party or any other person authorized by


law to file a criminal complaint;

c. A letter (sworn or not) from the offended party, or other persons


authorized by law to file the complaint;

d. A referral letter from a committee of the Senate or House of


Representatives or any other government agency or institution; and

e. A formal complaint similar in form to that filed in court.

2. Policy on Forms of Complaint Filed with the Prosecutors Office

a. As a general rule, a complaint filed with the prosecutor must be sworn to


by the complainant, to discourage harassment charges. In which case, the
prosecutor shall warn the complainant that any false statement in the
complaint may give rise to a finding of a prima facie case for perjury before
the same office.

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Revised Manual for Prosecutors
b. However, referral letter-complaints from law enforcement agencies or
government institutions need not be sworn to by the complainants.

c. A mere letter suffices to start an investigation, except if the offense charged


is one which cannot be prosecuted de officio, or is private in nature, i.e.,
where the law requires that it be started by a complaint sworn to by the
offended party (People v. Sangil, 4 SCRA 722). However, upon the start of
the investigation, the investigating officer should administer the oath to the
complainant.

This liberal policy is premised upon the fact that the complainant is
unschooled in law, (Grenen v. Consolacion, 4 SCRA 722 [1962]) and
it is the inherent power of the prosecutor to even initiate motu
proprio a criminal investigation without waiting for a formal
complaint to be filed by the agency or the aggrieved party. (Sec. 3,
Rule 110, supra).

3. Persons Authorized to File Complaints

The following persons are authorized to file a complaint:

a. The offended party;

Even if the names of the offended parties are not alleged, if the
offense belongs to the class of harmful ones (illegal practice of
medicine), the victims should be considered offended parties (Diel
v. Martinez, 76 Phil. 273).

b. Any other person or persons authorized by law to file a complaint;

c. Any law enforcement officer charged with the enforcement of the law violated.

A complaint filed with the prosecutor prior to judicial action may


be filed by any person (Salazar v. People, G.R. No. 149472, October
15, 2002)

Private persons may denounce a violation of banking laws (Perez v.


Monetary Board, 20 SCRA 592).

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Revised Manual for Prosecutors
In offenses which cannot be prosecuted de oficio, only the following persons may file the
complaint:

1. In crimes of adultery and concubinage, only the offeded spouse has the right to file
the complaint (Sec. 5, par. 2, Rule 110, supra);

2. In crimes of seduction, abduction and acts of lasciviousness, the offended party,


even if a minor, may file the complaint independently of her parents, grandparents
or guardian (Sec. 5, par. 3, Rule 110, supra);

3. In case the offended party is incompetent or incapacitated, only the following


persons have the right to file the complaint, exclusive of all other persons, and may
only exercise such right successively in the following order of priority: parents,
grandparents, and guardians. (Sec. 5, par. 4, Rule 110, supra);

4. If the offended party dies or is incapacitated before she could file the complaint,
but has no known parents, grandparents or guardian, the State shall initiate the
criminal action in her behalf. (Sec. 5, par. 3, Rule 110, supra);

5. In cases of violations of the Child Abuse Law, any one of the following may file the
complaint (Sec. 27, R.A. No. 9231 [Child Labor Law]):

The offended;

The parents or guardian

Ascendant or collateral relative within the third civil degree of


consanguinity

Officer, social worker or representative of a licensed child-care institution;

Officer or social worker of the Department of Social Welfare and


Development;

Barangay Chairman of the place where the offense was committed; or of


the place where the offended party actually resides, or where he/she works;

At least three (3) responsible citizens where the violation occurred.

d. For violations of RA 9262 (Anti-Violence Against Women and their Children Act
of 2004), any citizen having knowledge of the circumstances involving the
commission of the crime may file the complaint.

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Revised Manual for Prosecutors
e. In cases of violation of RA 9208 (Anti-Trafficking in Persons Act), any one of the
following may file the complaint:

1. Trafficked person;
2. Parents;
3. Spouse;
4. Siblings;
5. Children;
6. Legal guardian;
7. Any person who has personal knowledge of the commission of the offense.

4. Law Enforcement Officers/Public Officers Authorized to File Criminal


Complaints

Except in offenses which cannot be prosecuted de oficio, or where the law specifies
only certain persons as authorized to file the criminal complaint, the following law
enforcement officers or public officers or agencies may initiate the criminal action or
complaint:

a. Police officers;

b. NBI agents;

c. Officials of the Philippine Drug Enforcement Agency (PDEA) for violations of RA


9165 (Comprehensive Dangerous Drugs Act of 2002);

d. Officials of the Bureau of Internal Revenue (BIR) for violations of the National
Internal Revenue (NIRC);

e. Officials of the Bureau of Customs (BOC) for violations of the Tariff and Customs
Code;

f. Officials of the Bureau of Forestry Development (BFD) or other officials of the


Department of Environment and Natural Resources for violations of the Forestry
Law;

g. Officials of the Social Security Systems (SSS) for violation of RA 1161, as amended
by RA 8282 (SSS Law);

h. Officials of the Philippine Overseas Employment Administration (POEA) for


violations of RA 8042 (Migrant Workers and Overseas Filipinos Act of 1995);

i. Officials of the PAG-IBIG for violations of the PAG-IBIG Fund Law (PD 1752); and

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Revised Manual for Prosecutors
j. Other agencies specially tasked with the enforcement of certain special laws.

5. Institution of Criminal Action; How and Where Commenced

a. For offenses that require preliminary investigation pursuant to Sec. 1, Rule 112 of the
Revised Rules on Criminal Procedure-

A criminal action may be commenced or instituted by the filing of the complaint


with the proper officer for the purpose of conducting the requisite preliminary
investigation (Sec. 1 (a), Rule 110, supra.).

Criminal actions for violations of the civil and political rights of persons
suspected of or detained for the crime of terrorism or conspiracy to commit
terrorism may also be commenced by the filing of the complaint with the
Commission on Human Rights (Sec. 55, RA 9372).

b. For offenses that do not require preliminary investigation-

A criminal action may be commenced:

1. By filing the Complaint or Information directly with the Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial Courts; or,

2. By filing the complaint with the Office of the Prosecutor.

6. Place Where Criminal Action is to be Instituted

A criminal action should be instituted and tried in the province, city or municipality where
the offense was committed or any of its essential elements took place.

The purpose of the aforementioned principle being that a defendant should


not be compelled to move to, and appear in a different court from that of
the province where the crime was committed, as it would cause him great
inconvenience in looking for his witnesses and other evidence in another
place (Beltran v. Ramos,et.al., 96 Phil. 149 [1954]).

a. Where the offense is committed on a railroad train, in an aircraft, or in any other public or
private vehicle while in the course of its trip

The criminal action shall be instituted in the court of any municipality or territory
where such train, aircraft or other vehicle passed during such trip, including the
place of departure and arrival (Sec. 15 (b), Rule 110, supra.).

b. Where the offense is committed on board a vessel in the course of its voyage

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Revised Manual for Prosecutors
The criminal action shall be instituted in the proper court of its first port of entry
or of any municipality or territory through which the vessel passed during such
voyage subject to the generally accepted principles of international law (Sec. 15 (c)
Rule 110, supra. ).

The place where the action is to be instituted is subject to existing laws such
as offenses which fall under the exclusive jurisdiction of the Sandiganbayan
which is located at Quezon City.

c. Where the crimes are committed outside the Philippines but punishable under Article 2 of
the Revised Penal Code

The commission of such crimes shall be cognizable by the court where the criminal
action is first filed (Sec. 15 (d), Rule 110, supra.).

7. Who Prosecutes Criminal Actions

a. All criminal actions commenced by a Complaint or Information shall be prosecuted under


the direction and control of the prosecutor (Sec. 5, par. 1, Rule 110, supra.).

A case dismissed before arraignment may be refilled. (Marcelo v. Court of


Appeals, 227, SCRA 827).

b. In Municipal Trial Courts or Municipal Circuit Trial Courts, when the prosecutor assigned
thereto or to the case is not available the following may prosecute the case (Sec. 5, par. 1,
rule 110, supra.) :

1. The offended party;


2. Any peace officer; or
3. Public officer charged with the enforcement of the law violated.

This authority shall cease upon actual intervention of the prosecutor or upon elevation of
the case to the Regional Trial Court.

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B. INFORMATION

1. The Information Need Not Be under Oath; Matter Which a Prosecutor


Must Certify Under Oath in the Information

The Information need not be placed under oath by the prosecutor signing the same.
He must, however, certify under oath that:

a. He has examined the complainant and his witnesses;

b. There is reasonable ground to believe that a crime has been committed and that
the accused is probably guilty thereof;

c. The accused was informed of the complaint and of the evidence submitted against
him; and

d. The accused was given a opportunity to submit controverting evidence (Sec. 4, Rule
112, supra.).

2. Contents of the Caption of an Information

The caption of an Information shall, in addition to the name of the plaintiff,


indicate the following:

a. The complete names, i.e., given name, alias/es, maternal name, surname, and
addresses, of all the accused. In the case of accused minors, their age shall be
indicated in the caption;

b. The case number; and

c. The offense charged. (The denomination of the offense and the specific law and
provision violated shall be specified.)

C. RULES COMMON TO BOTH A COMPLAINT AND AN INFORMATION

1. Sufficiency of a Complaint or an Information

A Complaint or Information is sufficient if it states the following:

a. The name of the accused

The Complaint or Information must state the name and surname of the accused or
any appellation or nickname by which he has been or is known. If his name cannot be

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Revised Manual for Prosecutors
ascertained, he must described under a fictitious name with a statement that his true name is
unknown. (Sec. 7, par. 1, Rule 110, supra.).

If the true name of the accused is thereafter disclosed by him or appears in some
other manner to the court, such true name shall be inserted in the Complaint or Information and
record (Sec. 7, par. 2, Rule 110, supra.).

Where the accused has been sued as John Doe in an Information filed in due
form, and after due investigation by the prosecutor, his identity became known,
his true name may be inserted without further need of preliminary investigation
where one had already been properly conducted the nature of the crime is not
changed (San Diego v. Hernandez, 24, SCRA 110 [1968]).

In crimes against property, the designation of the name of the offended party is
not absolutely indispensable for as long as the criminal act charged in the
Complaint or Information can be properly identified (Sayson v. People, 166 SCRA
693).

b. the designation of the offense committed

To properly inform the accused of the nature and cause of the accusation against him, the
Complaint or Information shall state, whenever possible

1. The designation given to the offense by the statute;

2. The statement of the act or omission constituting the same, and if there is no such
designation, reference shall be made to the section or subsection of the law
punishing it (Sec. 8, Rule 110, supra) (People v. Gutierrez, 403 SCRA 178).

The Information or Complaint must avoid using conclusions of law, but


must allege ultimate facts - that is, specific averment of every fact or
element that constitutes the crime. Otherwise, the information is void for
being violative of the constitutional right of the accused to know the nature
of the offense charged against him.

Examples of Conclusions of law


The terms sexual abuse, rape or acts of lasciviousness are conclusions of law,
and not the ultimate facts constituting the acts punishable under Se. 5, RA 7610.
Thus, the allegation that the accused committed sexual abuse on his daughter,
either by raping her or committing acts of lasciviousness on her is not sufficient
to convict the accused as it does not state the acts or omissions constituting the
offense of child abuse (People v. De la Cruz, 383 SCRA 410 [2002]).

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Revised Manual for Prosecutors
The allegation that the accused sexually abused the complainant is not sufficient
to support a conviction for rape. The term sexual abused cannot be equated with
the allegation of carnal knowledge or sexual intercourse with the offended party
(People v. Flores, G.R. No. 128823, 24, December 27, 2002).

Neither is the term sexual abuse sufficient to convict the accused on child abuse
under RA 7610 because under Sec. 2 (g) of the Rules and Regulations of the
Reporting and Investigation of Child Abuse cases issued pursuant to Sec. 32 of RA
7610, sexual abuse is defined therein by inclusion as follows:

Sexual abuse includes:

1. Employment, use, persuasion, enticement, or coercion of a child to engage


in, or assist another person to engage in sexual intercourse or lascivious
conduct, or

2. The molestation, or

3. Prostitution, or

4. Incest with children.

From the foregoing broad, non-exclusive definition, the phrase sexually abused
does not comply with the requirement that the complaint must contain a specific
averment of every fact necessary to constitute the crime.

Examples of Averments of Ultimate Facts

The body of the information states that the accused embraced the complainant, held
her breasts and kissed her lips. Such allegations constitute specific averment of ultimate facts
constituting the offense of child abuse under Sec. 5 of RA 7610. This, despite the fact that the
caption and the preamble of the Information designated the offense charged as Violation of RA
7610. The omission to cite the specific section or subsection. of RA 7610 violated is not sufficient
to invalidate the Information since there is no doubt that the allegation of the ultimate facts of
embracing the victim, holding her breast and kissing her lips clearly refer to the ultimate
facts of the generic term acts of lasciviousness which is penalized under Sec. 5 of RA 7610.
Hence, the Information was valid (Olivarez c. CA G.R. No. 163866, July 29, 2005).

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Revised Manual for Prosecutors
In order for the court to impose the penalties under R.A. No. 9346 in rape cases, the
following attendant circumstances must be stated in the Information:

1. When the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the
third civil degree, or the common-law spouse of the parent of the victim;

2. When the victim is under the custody of the police or military authorities;

3. When the rape is committed in full view of the husband, parent, any of the children
or other relatives within the third degree of consanguinity;

4. When the victim is a religious or a child below seven (7) years old;

5. When the offender knows that he is afflicted with Acquired Immune Deficiency
Syndrome (AIDS) disease;

6. When the rape is committed by any member of the Armed Forces of the Philippines
or the Philippine National Police or any law enforcement agency;

7. When, by reason or on the occasion of the rape, the victim has suffered permanent
physical mutilation. (Sec. 11, RA 7659 [The Death Penalty Law]).

c. the cause of the accusation

The acts or omissions complained of as constituting the offense and the qualifying and
aggravating circumstances must be stated in ordinary and concise language and not necessarily
in the language used in the statute but in terms sufficient to enable a person of common
understanding to know what offense is being charged as well as its qualifying and aggravating
circumstances and for the court to pronounce judgment (Sec. 9, Rule 110, supra.).

d. place where the offense was committed

the Complaint or Information is sufficient if it can be understood from its allegations that
the offense was committed or some of its essential ingredients occurred at some place within the
jurisdiction of the court, unless the particular place where it was committed constitutes an
essential element of the offense charged or is necessary for its identification (Sec. 10, Rule 110,
supra.).

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Revised Manual for Prosecutors
A general allegation in the Complaint that the felony was committed within the
jurisdiction of the court is sufficient. The remedy is a motion for a bill of particulars under Rule
116, Sec. 6 (People v. Pinuela, 91 Phil. 53).

There are however, certain crimes where place is essential:

1. Violation of domicile (Art. 128, RPC);

2. Penalty on keeper, watchman and visitor of an opium den (Art. 199, RPC);

3. Trespass to dwelling (Art. 280, RPC);

4. Violation of the election law, e.g., 30-meter radius carrying of a deadly weapon prohibited
(Election Code)

e. date of the commission of the offense

The complaint must allege the specific time and place when and where the offense was
committed, but when the time so alleged is not of the essence of the offense, it need not be proved
as alleged, and the complaint will be sufficient if the evidence shows that the offense was
committed at anytime within the period of the statute of limitation and before the commencement
of the action (US v. Smith, 3 Phil 20 [1903]).

f. name of the offended party

The Complaint or Information must state the name and surname of the person against
whom or against whose property the offense was committed, or any appellation or nickname by
which such person has been or is known. If there is no better way of identifying him, he must be
described under a fictitious name (Sec. 12, Rule 110, supra.).

2. Other Essential Matters to be Alleged in the Complaint or Information

The following matters shall also be alleged in the Complaint or Information:

a. Every essential element of the offense;

b. The criminal intent of the accused and its relation to the act or omission
complained of;

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c. All qualifying and generic aggravating circumstances which are integral parts of
the offense;

d. All matters that are essential to the constitution of the offense, such as the
ownership and/or value of the property robbed or destroyed; the particular
knowledge to establish culpable intent; or the particular intention that
characterizes the offense;

e. Age of the minor accused, and whenever applicable, the fact that he/she acted with
the discernment; and,

f. Age of the minor complainant.

3. Number of Offenses Charged

A Complaint or Information must charge only one offense, EXCEPT when the law
prescribes a single punishment for various offenses (Sec. 13, Rule 110, supra.).

The charge is not defective for duplicity when one single crime is set forth in the different
modes prescribed by law for its commission, or the felony is set forth under different
counts specifying the way of its perpetuation, or the acts resulted from a single criminal
impulse. Neither is there duplicity when the other offense described is but an ingredient
or an essential element of the real offense charged nor when several acts are related in
describing the offense (People v. Montilla, 285 SCRA 703).

EXCEPTION: The rule on duplicity of offenses does not apply where the law
prescribes a single penalty for various offenses such as a complex crime under
Article 48 of the Revised Penal Code or special complex crime such as robbery with
homicide or with rape or rape with homicide.

4. Title of the Complaint or Information

The title of the Complaint or Information shall be in the name of the People of the
Philippines as plaintiff against all persons who appear to be responsible for the offense involved.

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5. Qualifying and Generic Aggravating Circumstances; To be Alleged and
Proved

a. The prosecutor must always consider and allege the applicable qualifying and/or generic
aggravating circumstances in any Complaint or Information that he prepares.

b. Any qualifying or generic aggravating circumstance not alleged in the Complaint or


Information may not be considered by the court even if proved during trial, except as a
ground for the grant of exemplary damages in the civil aspect of the criminal action where
applicable, pursuant to Article 2230 of the New Civil Code.

6. List of Prosecution Witnesses

The information shall contain the complete names and addresses of all identified
witnesses for the prosecution. In cases for violation of B.P. Blg. 22 and estafa cases, the
list of witnesses shall include the complainant, the bank representative with specific
reference to the check and account numbers involved and, in proper cases, the company
auditor.

In physical injuries cases, the Information shall indicate the name of the attending
physician with specific reference to the medical report and date of the incident.

7. Amendment of the Complaint or Information

A Complaint or Information may be amended, in form or in substance:

a. Before the accused pleads

This may be done without leave of court; however, any amendment before
plea, which downgrades the nature of the offense charged or excludes any
accused from the Complaint or Information, can be made only upon motion
by the prosecutor, with notice to the offended party and with leave of court
(Sec. 14, par. 2, Rule 110, supra.).

b. After the accused has pleaded

The amendment may be made only with leave of court and only as to
matters of form wherein the same can be done without prejudice to the
rights of the accused (Sec. 14, par 1, Rule 110, supra.).

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c. During the trial

An amendment may also be made but only with leave of court and also only as to
matters of form wherein the same can be done without prejudice to the rights of
the accused (Sec. 14, par. 1, Rule 110, supra.).

8. Amendment by Substitution

At any time before judgment, if there has been a mistake in charging the proper offense,
the court shall dismiss the original Complaint or Information upon the filing of a new one charging
the proper offense in accordance with Rule 119, Sec. 11, provided the accused would not be placed
thereby in double jeopardy. The court may also require the witnesses to give bail for their
appearance at the trial (Sec. 14, par. 3, Rule 110, supra.).

a. Requisites for the substitution of a defective information with the


correct one:

1. It involves a substantial change from the original charge;

2. The substitution of Information must be with leave of court as the original


Information has to be dismissed;

3. Another preliminary investigation must be conducted and the accused has


to plead anew to the new Information; and

4. Substitution presupposes that the new Information involves a different


offense which does not include or is not necessarily included in the original
charge.

NOTE: where the second Information involves the same offense, or an offense
which necessarily includes or is necessarily included in the first Information, an
amendment of the Information is sufficient; otherwise, where the new Information
charges an offense which is distinct and different from that initially charged, a
substitution is in order (Galvez v. Court of Appeals, 237 SCRA 695).

NOTE: when it becomes manifest at any time before judgment that a mistake has
been made in charging the proper offense and the accused cannot be convicted of
the offense charged or any other offense necessarily included therein, the accused
shall not be discharged if there appears good cause to detain him. In such case, the
court shall commit the accused the answer for the proper offense and dismiss the
original case upon the filing of the proper Information (Sec. 19, Rule 119, Revised
Rules on Criminal Procedure).

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9. Prescriptive Period; How Computed and Interrupted

a. For an offense penalized under the Revised Penal Code

The period of prescription commences to run from the day on which the crime was
discovered by the offended party, the authorities, or their agents, and shall be
interrupted:

1. By the filing of the complaint with the Office of the Provincial/City


Prosecutor (Sec. 1 (b), par. 2, Rule 110, supra.); or with the Office of the
Ombudsman (Llenes v. Dicdican, 260 SCRA 207 [1996] or

2. By the filing of the Complain/Information with the court even if the court
cannot try the case on its merits because of lack of jurisdiction (People v.
Enrile, 160 SCRA 700).

3. For an offense covered by the Revised Rules on Summary Procedure (which


is not a violation of a municipal ordinance or special law such as reckless
imprudence resulting in slight physical injuries), the period of prescription
is interrupted only by the filing of the Complaint or Information in the
prosecutors office (People v. Cuaresma, 172 SCRA 415 [1989]).

4. The prescription of an offense filed before the Prosecutor or Ombudsman


shall commence to run again when proceedings terminate; while the
prescription of an offense filed in court starts to run again when the
proceedings terminate without the accused being convicted or acquitted or
are injustifiably stopped for any reason not imputable to the accused (Art.
91, Revised Penal Code).

b. For violation of a special law or ordinance

The period of prescription shall commence to run from the day of the
commission of the violation, and if the same is not known at the time, from the
discovery and the institution of judicial proceedings for its investigation and
punishment. The prescription shall be interrupted only by the filing of the
Complaint or Information in court and shall begin to run again if the proceedings
are dismissed for reasons not constituting double jeopardy (Sec. 2, Act. No. 3326,
as amended).

Prescription shall not run when the offender is absent from the country
(Art. 91, par.2, Revised Penal Code).

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In cases where the imposable penalty is imprisonment and/or a fine, the greater penalty
shall be the basis for the computation of prescription.

c. For cases falling within the jurisdiction of the Katarungan


Pambarangay

The period of prescription is likewise interrupted by the filing of the


complaint with the punong barangay, but shall not resume to run again
upon receipt by the complainant of the certificate of repudiation or of the
certification to file action issued by the lupon or pangkat secretary;
Provided, however, That such interruption shall not exceed sixty (60) days
from the filing of the complaint with the punong barangay.

Prescription shall not run when the offender is absent from the
country.

IV. RELEVANT JURISPRUDENCE

1. A petition for a change of venue of the preliminary investigation should be addressed to


the Secretary of Justice who has control and supervision over the conduct of a preliminary
investigation which is a function of the Executive Department and not the Judiciary
(Larranaga v. C.A., 287 SCRA 581).

2. Where the crime for violation of PD 532 (Anti-Piracy and Anti-Highway Robbery Law of
1974) was committed aboard a jeepney, the criminal action may be instituted in the court
of any municipality or territory where the vehicle passed during the trip including the
place of departure and arrival (People v. Panlilio, 255 SCRA 503).

3. Where the transport of cigarettes commenced out of Clark Airbase and continued when
the goods pushed through Valenzuela, Bulacan until they were seized in Quezon City, the
courts in any of these places had jurisdiction over the offenses (Co Kiat v. C.A., 187 SCRA
5 [1990]).

4. The Supreme Court ruled in the case of People v. Esperanza, G.R. Nos. 139217-24, June
27, 2003, the allegation that Irma is Nelsons niece is not specific enough to satisfy the
special qualifying circumstances of relationship. If the offender is merely a relation not
a parent, ascendant, step-parent, guardian or common-law spouse of the mother of the
victim the specific relationship must be alleged in the Information, i.e., that he is a
relative by consanguinity or affinity [as the case may be] within the third civil degree.

5. In the preparation of the Information in case of qualified rape, the attendant


circumstances provided for under Sec. 11 of RA 7659 must be stated with particularity. Not
only the qualifying but also the aggravating circumstances must be specified in the
Information. The Rules now require aggravating circumstances must not only be proved

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but it must also be alleged; otherwise, it should not be considered. (Catiis v. C.A., GR No.
153979, February 09, 2006).

6. The exact age of the victim at the time of the commission of the offense must be stated in
the Information. (People v. Arillas, GR No. 130593, June 19, 2000.).

7. Where the Informations state that the offense was committed with the aggravating
circumstances of insult or in disregard of the respect due the offended party on account of
the fact that the accused is the father of the complainant, said Informations properly
pleaded the special circumstance of relationship of father and daughter that would enable
a person of sufficient understanding to know what offense is intended to be charged
(People v. Alarcon, 310 SCRA 729).

8. An aggravating circumstance, whether ordinary or qualifying, should entitle the offended


party to an award of exemplary damages within the context of Article 2230 of the New
Civil Code even if the Information or criminal Complaint has not alleged said
circumstances as required by the Rule (People v. Victor, G.R. No. 127904, December 05,
2002).

9. The court gave fair warning to prosecutors that they must prepare well-crafted
Informations that allege the circumstances qualifying and aggravating the crimes charged;
otherwise, the same will not be considered by the court in determining the proper penalty
(People v. Rodolfo Oling Madraga, January 20, 2003).

10. The words aggravating/qualifying, qualifying, qualified by, aggravating or


aggravated by need not be expressly stated as long as the particular attendant
circumstances are specified in the Information. (People v. Aquino, 386 SCRA 391 [2002]
and People v. Garin, 432 SCRA 394 [2004]).

11. When conspiracy is charged as a mode in the commission of a crime, the allegation in the
Information should allege, thus: a) by the use of the word conspire or its derivatives or
synonyms, such as confederate, connive, collude, etc. or b) by allegations of basic facts
constituting the conspiracy in a manner that a person of common understanding would
know what is intended, and with such precision as would enable the accused to
competently enter a plea to a subsequent indictment based on the same facts (Estrada v.
Sandiganbayan, GR No. 148965, February 26, 2002).

12. Allegations prevail over designation of the offense in the Information for conviction of the
accused who may therefore be convicted of a crime more serious than that named in the
title or preliminary part if such crime is covered by the facts alleged in the body of the
Information and its commission is established by the evidence (Buhat v. CA., 265 SCRA
701 [1996]).

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13. An Information for bigamy must state the time and place of the second wedding (People
v. Bustamante, 105 Phil. 64).

14. Time is irrelevant in rape (People v. Bugayong, 299 SCRA 128) and violations of the
Dangerous Drugs Law cases. (People v. Requiz, 318 SCRA 635).

15. Where murder or homicide results from the use of an unlicensed firearm, the crime is no
longer qualified illegal possession, but murder or homicide, as the case may be. The use of
the unlicensed firearm is not considered as a separate crime but shall be appreciated as
mere aggravating circumstance (People v. Lazaro, 317 SCRA 435).

16. An amendment after plea which changes the nature of the offense is prohibited (Ricers v.
C.A., GR No. 16041, February 09, 2007). The factor that characterizes the charge is the
actual recital of facts. The real nature of the criminal charge is determined not from the
caption or preamble of the Information nor from the specification of the provision of law
alleged to have been violated they being conclusions of law but by the actual recital of facts
in the Complaint or Information (Lacson v. Executive Secretary, 301 SCRA 298 [1999];
People vs Gutierrez, 403 SCRA 178).

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PART II. INQUEST

I. GENERAL RULES

A. CONCEPT

Inquest is an informal and summary investigation conducted by a public prosecutor in


criminal cases involving persons arrested and detained without the benefit of a warrant
of arrest issued by the court for the purpose of determining whether or not said persons
should remain under custody and correspondingly be charged in court.

B. COVERAGE

The conduct of inquest proceedings covers the following:

1. All offenses covered under the Revised Penal Code and special laws, rules and
regulations;

2. Where the respondent is a minor (below eighteen [18] years old), the inquest
investigation shall cover only offenses punishable by imprisonment of not less than
six (6) years and one (1) day, provided that no inquest investigation shall be
conducted unless the child-respondent

C. DESIGNATION OF AN INQUEST PROSECUTOR

The Chief State Prosecutor or the Provincial/City Prosecutor shall designate the
prosecutors assigned to inquest duties and shall furnish the Philippine National Police
(PNP) a list of their names and their schedule of assignments. If, however, there is only
one prosecutor in the area, all inquest cases shall be referred to him for appropriate
action.

D. VENUE OF INQUEST CASES

Unless otherwise directed by the Chief State Prosecutor or the Provincial/City


Prosecutor, those assigned to inquest duties shall discharge their functions during the
hours of their designated assignments and only at the police stations
headquarters of the PNP or at the office of the inquest prosecutor in order to
expedite and facilitate the disposition of inquest cases.

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E. DATE AND TIME OF THE CONDUCT OF INQUEST PROCEEDINGS

Inquest proceedings may be conducted at any time of the week. However,


where an inquest falls on a non-working day, Saturday, Sunday and Holiday, and a
prosecutor is not available, the inquest proceedings shall be conducted on the first office
day following the arrest (Medina vs Orozco, Jr., 18 SCRA 1168).

II. PROCEDURE

A. COMMENCEMENT OF THE INQUEST PROCEEDINGS

1. When Commenced

The inquest proceedings shall be considered commenced upon receipt by the


inquest prosecutor of the following documents:

a. The affidavit of arrest duly subscribed and sworn to before him by the arresting
officer;

b. The investigation report;

c. The sworn statements of the complainant/s and witness/es; and

d. Other supporting pieces of evidence gathered by the police in the course of the
latters investigation of the criminal incident involving the arrested or detained
person.

NOTE: The sworn complaint shall be accompanied by an accomplished


Preliminary Investigation Data Form (please refer to NPS Investigation Form No.
01, s. 2008 on p. 60 of this Manual.) and other supporting documents.

2. Documents Required in Specific Cases

The inquest prosecutor shall, as far as practicable, require the


submission/presentation of the documents listed below to wit:

a. Murder, Homicide and Parricide

Certified true/machine copy of the certificate of death of the victim;


Autopsy report and the certificate of post-mortem examination, if readily
available; and
Marriage certificate in parricide cases.

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b. Frustrated or Attempted Homicide, Murder, Parricide and Physical Injuries

Medical certificate of the complaining witness showing the nature or extent of


the injury and duration of healing;
Certification or statement as to duration of the treatment or medical
attendance;
Certificate or statement as to duration of incapacity for work; and
Marriage certificate in frustrated or attempted parricide cases.

c. Violation of the Dangerous Drugs Law/Comprehensive Dangerous Drugs Act of


2002 (RA 9165)

Chemistry report or certificate of laboratory examination duly signed by the


forensic chemist or other duly authorized officer, or if unavailable, the field test
results on the seized drug, as attested to by a PNP Narcotics Command operative
or other competent person, in which case, the inquest prosecutor shall direct
the arresting officer to immediately forward the seized drug to the crime
laboratory for expert testing and to submit the final forensic chemistry report to
the prosecutors office within five (5) from the date of inquest;
Machine copy or photograph of the buy-bust money, if available; and
Affidavit of the poseur-buyer, if any.

d. Theft and Robbery, Violation of the Anti-Piracy and Anti-Highway Robbery Law
(PD 532) and Violation of the Anti-Fencing Law (PD 1612)

A list/inventory of the articles and items subject of the offense; and


Statement of their respective values.

e. Rape, Seduction and Forcible Abduction with Rape

The medico-legal report (living case report), if the victim submitted herself for
medical of physical examination.

f. Violation of the Anti-Carnapping Law (RA 6539)

Machine copy of the certificate of motor vehicle registration;


Machine copy of the current official receipt of payment of the registration fees
of the subject motor vehicle;
Photograph of the vehicle, if readily available;
Certification from the Traffic Management Group / Land Transportation Office;
and
Other evidence of ownership

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g. Violation of the Anti-Cattle Rustling Law (PD 533)

Machine copy of the cattle certificate of registration; and


Photograph of the cattle, if readily available

h. Violation of Illegal Gambling Law (PD 1602)

Gambling paraphernalia
Photograph of the gambling paraphernalia, if any; and
Cash money, if any.

i. Illegal Possession of Firearms, Ammunitions and Explosives (P.D. 1866 as


amended by RA 8294)

Chemistry report duly signed by the forensic chemist; and


Photograph of the explosives, if readily available.
Ballistics report, if readily available.

j. Violation of the Fisheries Law (PD 704)

Photograph of the confiscated fish, if readily available;


Photograph of fishing paraphernalia, if any; and
Certification of Bureau of Fisheries and Aquatic Resources

k. Violation of RA 9262 (VAWC)

Marriage contract/certificate; or
Affidavit/evidence of dating relationship, if applicable; and
Barangay protection order (BPO), if any.

In case where the victim/offender is a minor, the inquest prosecutor shall


require the submission of the following:

Birth certificate; or
Dental chart accompanied by a certification from the dentist; or
Affidavits of any of the parent/disinterested parties;
Certificate of discernment from the LSWD in cases covered by RA 9344 (the
Juvenile Justice and Welfare Act).

Other pieces of evidence may also be submitted to establish the commission of


the foregoing offenses/crimes.

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3. Incomplete Documents

When the documents presented are not complete to establish probable


cause, the inquest prosecutor shall direct the law enforcement authorities to
submit in the proper form, the required evidence within the period prescribed
under the provisions of Article 125 of the Revised Penal Code, as amended (please
refer to NPS INQ Form No. 01, s. 2008 on p. 62 of this Manual). Failure to submit
the required evidence within the periods prescribed shall constrain the inquest
prosecutor to order the release of the detained person (please refer to NPS INQ
Form No. 02, s. 2008 on p. 64 of this Manual).

4. Instances Where the Presence of the Detained Person is Dispensed


With

The presence of the detained person who is under custody shall be ensured
during the proceedings. His presence may, however, be dispensed with in the
following cases:

If he is confined in a hospital; or
If he is detained in a place under maximum security;

The absence of the detained person for any of the foregoing reasons shall
be noted by the inquest prosecutor and reflected in the record of the case.

5. Charges and Counter-Charges

All charges and counter-charges arising from the same incident shall, as far
as practicable, be consolidated, and the conduct of the inquest proceedings shall
be held jointly to avoid contradictory or inconsistent dispositions.

6. Determination of the Arrest by the Inquest Prosecutor

The inquest prosecutor shall first determine if the arrest of the detained
person was made in accordance with paragraphs (a), (b) and (c) of Sec. 5, Rule 113
of the Revised Rules on Criminal Procedure which provide that arrests without a
warranty may be effected: (Go vs. Court of Appeals, 206 SCRA 138 [1992]; Umil,
et.al. vs. Ramos, 202 SCRA 251 [1991] and companion cases People vs. Mamstedt,
198 SCRA 401 and People vs Aminnudin, 163 SCRA 402 [1998]).

a. When, in the presence of the arresting officer, the person to be arrested has
committed, is actually committing, or is attempting to commit an offense; or

b. When an offense has in fact just been committed, and the arresting officer has
probable cause to believe, based on personal knowledge of facts or circumstances,
that the person to be arrested has committed it; and

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c. When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily
confined while his case is pending, or has escaped while being transferred from
one confinement to another.

For this purpose, the inquest prosecutor may summarily examine the arresting
officers on the circumstances surrounding the arrest or apprehension of the detained
person.

Meaning of Probable Cause in Inquest Cases

Probable cause means an actual belief or reasonable grounds of suspicion (People vs.
Tudtud, GR No. 144037, Sept. 26, 2003) that the person to be arrested is about to commit or is
attempting to commit a crime, or is in the act of committing a crime, or has committed a crime,
either in the presence or without the presence of the arresting officer.

7. Where Arrest of the Detained Person was Not Properly Effected

Should the inquest prosecutor find that the arrest was not made in accordance with the
aforesaid provisions of the Revised Rules on Criminal Procedure, he shall :

Recommend the release of the person arrested or detained;


Prepare a resolution indicating the reasons for the action taken; and
Forward the same, together with the record of the case, to the Chief State or
Provincial/City Prosecutor for appropriate action.

Where the recommendation for the release of the detained person is approved by the Chief
State Prosecutor or by the Provincial/City Prosecutor but the evidence on hand warrants the
conduct of a regular preliminary investigation, the inquest prosecutor shall:

Serve the order of release on the law enforcement officer having custody of said detainee
and (please see NPS INQ Form No. 01, s. 2008 on p. 64 of this Manual);
Direct the said officer to serve upon the detainee the subpoena or notice of preliminary
investigation, together with the copies of the charge sheet or complaint, affidavits or sworn
statements of the complainant and his witnesses and other supporting evidence (please
refer to NPS INQ Form No. 03, s. 2008 on p. 66 of this Manual).

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8. Where the Arrest of the Detained Person was Properly Effected

Should the inquest prosecutor find that the arrest was properly effected, the detained
person shall be asked if he desires to avail himself of a preliminary investigation and, if he does,
the consequences thereof must be explained to him adequately.

The detained person, with the assistance of a lawyer of his own choice, shall then be made
to execute a waiver of the provisions of Article 125 of the Revised Penal Code, as amended (please
refer to NPS INQ Form No. 04, s. 2008 on p. 67 of this Manual).

The preliminary investigation may be conducted by the inquest prosecutor himself or by


any other prosecutor to whom the case may be assigned by the Chief State Prosecutor or the
Provincial/City Prosecutor, which investigation shall be terminated within fifteen (15)
days from its inception.

B. INQUEST PROPER

Where the detained person does not opt for a preliminary investigation or otherwise
refuses to execute the required waiver, the inquest prosecutor shall proceed with the conduct of
the inquest proceeding, notwithstanding the absence of a counsel, by examining the sworn
statements/affidavits of the complainant and the witnesses and other supporting evidence
submitted.

If necessary, the inquest prosecutor shall require the presence of the complaining
witnesses and subject them to an informal and summary investigation or examination for
purposes of determining the existence of probable cause.

If the inquest prosecutor finds that probable cause exists, he shall forthwith prepare the
resolution with the corresponding Complaint/Information with the recommendation that the
same be filed in court. The Complaint/Information shall indicate the offense/s committed and
the amount of bail recommended, if applicable. However, in inquest cases for crimes covered by
the Rules on Summary Procedure and RA 6036 where no bail is required, the inquest prosecutor
shall recommend the release of the arrested person and prepare the Information for filing with
the court.

Thereafter, the record of the case, together with the resolution and the
Complaint/Information, shall be forwarded to the Chief State Prosecutor or the Provincial/City
Prosecutor for approval and subsequent filing before the proper Court.

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1. Contents of the Information

The Complaint/Information shall, among others, contain:

a. A certification by the filing prosecutor that he is filing the same in accordance with the
provision of Sec. 6, Rule 112, Revised Rules on Criminal Procedure in cases cognizable by
the Regional Trial Court (please refer to NPS INQ Form No. 05, s. 2008 on p. 68 of this
Manual);

b. The full name and aliases, if any, of the accused;

c. Unidentified accused person/s designated as John/Jane Does, if he/she is in conspiracy


with the identified accused;

d. The address of the accused;

e. The place where the accused is actually detained;

f. The full names and addresses of the complainant and witnesses;

g. Description of the items subject matter of the complaint, if there are any;

h. The full name and addresses of the evidence custodian;

i. The age of the complainant or the accused, if below eighteen (18) years of age;

j. The full names and addresses of the parents, custodians or guardians of the minor
complainant or accused, as the case may be;

k. Attendance of aggravating and/or qualifying circumstances, if any.

2. Action to be Taken When There is an Absence of Probable Cause

if the inquest prosecutor finds no probable cause to indict the arrested/detained


person, he shall:

a. Recommend the release of the arrested or detained person; (please refer to NPS INQ
Form No. 02, s. 2008 on release found on p. 64 of this Manual);

b. Prepare a resolution of dismissal indicating therein the reasons for the action taken; and

c. Fortwith forward the record of the case to the Chief State Prosecutor or the
Provincial/City Prosecutor for appropriate action.

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When the Chief State Prosecutor or the Provincial/City Prosecutor sustains the
recommendation of the inquest for the dismissal of the complaint, the record of the case
shall forthwith be forwarded to the Office of the Secretary or the Office of the Regional
State Prosecutor as the case may be, for automatic review. (please refer to DOJ Circular
No. 46, s. 2003 on Automatic Review of Dismissed Cases Involving RA 9165
[Comprehensive Dangerous Drugs Act of 2002] found in Appendix B on p. 303 of this
Manual)

Meanwhile, the arrested or detained person shall be released.

3. Action to be Taken When the Arrested Person Executes a Waiver of Article 125
of the Revised Penal Code

Should the arrested person execute a waiver, the inquest prosecutor shall set the case for
preliminary investigation which shall be terminated within fifteen (15) days from the
execution of the waiver.

4. Posting of Bail by the Arrested/Detained Person

a. If offense is bailable

A person lawfully arrested/detained under Sec. 6, Rule 112 of the Revised Rules on
Criminal Procedure may post bail before the filing of the Information without being
deemed to have waived his right to a preliminary investigation. For this purpose, the
inquest prosecutor shall simply prepare a certification that the person arrested is
being charged for an offense in an inquest proceeding and specifying the
recommended bail therefor. Applying for and posting bail does not result in the
waiver of the invalidity of an unjustified warrantless arrest (People vs. Barros, 231
SCRA 557.)

b. If offense is non-bailable

The inquest prosecutor must move for the suspension of the bail hearing until the fifteen
(15)-day preliminary investigation of the inquest proceeding is terminated and the
resolution is promulgated.

5. Termination of Inquest Proceedings

The Inquest proceedings must be terminated within the period prescribed under
the provisions of Article 125 of the Revised Penal Code, as amended. (12 hours for light
offenses; 18 hours for less grave offenses; 36 hours for grave offenses counted from the
time of arrest).

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However, the following factors are taken into consideration in determining
whether or not Article 125 of the Revised Penal Code has been violated:

1. The means of communication

2. The hour of the arrest

3. Other circumstances such as:

a. The time of surrender; and

b. The material possibility for the prosecution to make the investigation and
file in time the corresponding Information because of the following
reasons:

Availability of the clerk of court to open the courthouse, docket the


case and have the order of commitment prepared; or
Availability of the judge to act on the case; or
The fact that government offices open for business transactions at
8:00 oclock in the morning and close at 5:00 oclock in the
afternoon

The period prescribed in Article 125 of the Revised Penal Code shall not be
applicable when the persons arrested/detained without the benefit of a
warrant of arrest issued by the court are children defined under Republic
Act No. 9344, otherwise known as the Juvenile Justice and Welfare Act of
2006. (please refer to Department Circular No. 39 s. 2007 on the Rules
on Inquest With Respect to Children in Conflict with the Law as defined
Under Republic Act No. 9344, Otherwise Known as the Juvenile Justice
and Welfare Act of 2006 found in Appendix A on p. 300 of this Manual)

III. OTHER MATTERS

A. PRESENCE OF THE INQUEST PROSECUTOR AT THE CRIME SCENE

Whenever a dead body is found by the law enforcement authorities and there is
reason to believe that the death of the person resulted in foul play, or from the unlawful
acts or omissions of other persons and such fact has been brought to his attention, the
inquest prosecutor shall:

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Revised Manual for Prosecutors
1. Forthwith proceed to the crime scene or place of discovery of the dead person;

2. Cause the immediate autopsy of the dead person to be conducted by the appropriate
medico-legal officer in the locality or the PNP medico legal division or the NBI medico-
legal office, as the dead body;

3. Direct the police investigator to cause the taking of photographs of the crime scene or place
of discovery of the dead body;

4. Supervise the crime scene investigation to be conducted by the police authorities as well
as the recovery of all articles and pieces of evidence found thereat; to see to it that the same
are safeguarded; and that the chain of the custody thereof be properly recorded; and

5. Submit a written report of his/her finding to the Chief State Prosecutor or the
Provincial/City Prosecutor as the case may be for appropriate action.

B. SANDIGANBAYAN CASES

Should any complaint cognizable by the Sandiganbayan be referred to an inquest


prosecutor for the conduct of inquest proceedings, the latter shall refrain from accepting
the same and shall advise the law enforcer to file the complaint before the Office of the
Ombudsman or the Office of the Special Prosecutor through any of the branch clerk of
court in the locality.

C. ABSENCE OR UNAVAILABILITY OF THE INQUEST PROSECUTOR

The inquest prosecutor shall take appropriate remedial measure to correct any defect in
the complaint when the same has been filed directly before the court by the police officer
or the offended party because of the unavailability of an inquest prosecutor.

D. RECOVERED ARTICLES

1. Responsibility of the Inquest Prosecutor:

The inquest prosecutor shall:


a. See to it that all the articles recovered by the law enforcement authorities at the time of
the arrest or apprehension of the arrested/detained person are physically inventoried,
checked and accounted for;

b. Make sure that the corresponding photographs of the recovered articles/ properties are
taken and which photographs should be attached to the record of the case; and

c. Ensure the items recovered are duly safeguarded by the law enforcer and the chain of
custody is properly recorded.
2. Deposit of Recovered Articles/Properties

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Revised Manual for Prosecutors
The said articles shall be properly deposited by the police investigator with the
police evidence custodian.

E. RELEASE OF RECOVERED ARTICLES

The inquest prosecutor shall, with the prior approval of the Chief State Prosecutor or the
Provincial/City Prosecutor or his duly authorized representative, order the release (please
refer to NPS INQ Form No. 06, s. 2008 on p.69 of this manual) of recovered articles to
their lawful owner or possessor, subject to the conditions that:

1. There is a written request for their release (please refer to NPS INQ Form No. 07,
s. 2008 on p. 71 of this Manual);

2. The person requesting the release of said articles is shown to be the lawful owner
or possessor thereof;

3. The requesting party undertakes under oath to produce said articles before the
court when so required;

4. The requesting party, if he is a material witness to the case, affirms or reaffirms his
statement concerning the case and undertakes under oath to appear and testify
before the court when so required;

5. The said articles are not instruments, or tools in the commission of the offense
charged nor the proceeds thereof; and

6. Photographs of said articles are first taken and duly certified to by the police
evidence custodian as accurately representing the evidence in his custody.

IV. RELEVANT JURISPRUDENCE

1. The permissible warrantless arrests are: (1) arrests in flagrante delicto; (2) arrests effected
in hot pursuit; (3) arrests of escaped prisoners (People vs. Macalaba, 395 SCRA 461).

2. After the filing of the Information in court without a preliminary investigation, the accused
may, within five (5) days from the time he learns of its filing, ask for a preliminary
investigation with the same right to adduce evidence in his defense as provided under Sec.
6, Rule 112 of the Rules on Criminal Procedure. This five-day rule is mandatory (People vs
Figueroa, 27 SCRA 1239 [1969]).

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Revised Manual for Prosecutors
3. Reliable information alone, absent any overt act indicative of a felonious enterprise in the
presence of and within the view of the arresting officers, are not sufficient to constitute
probable cause that would justify an in flagrante delicto arrest (People vs. Molina, GR
No. 133917, February 19, 2001, en banc; see also People vs Chua, 396 SCRA 657; People
vs Nuevas, G.R. No. 170233, February 22, 2007).

4. A warrantless arrest is not justified by the mere fact that a crime is being committed in
ones presence. The arresting officer must have personal knowledge of such commission.
The knowledge must precede the arrest. The arrest cannot be justified by discovery
thereafter that the person was committing a crime (People vs Judge Laguio, GR NO.
128587, March 16, 2007).

5. Buy-bust operations are considered arrests in flagrante delicto. (People vs Lacap, 368
SCRA 64).

6. Just been committed connotes immediacy in point of time (the time interval between
the actual commission of the crime and the arrival of the arresting officer must be brief).
(People vs Del Rosario, 305 SCRA 740 [1999]).

7. A warrantless arrest made three (3) days after the commission of the crime (People vs
Monda, November 22, 1993, 48 SCAD 478, 228 SCRA 115) or 19 hours thereafter (People
vs Manlulu, April 22, 1994, 50 SCAD 71, 231 SCRA 701) were held to be unlawful.

8. When a police officer sees the offense, although at a distance, or hears the disturbances
created thereby, and proceeds at once to the scene thereof, he may effect an arrest without
a warrant since the offense is deemed committed in his presence or within his view (People
vs Sucro, 195 SCRA 388).

9. The personal knowledge of the fact of rape which was supplied by the rape victim herself
to the arresting officer falls within the purview of a warrantless arrest (People vs Alvario,
275 SCRA 529 [1997]).

10. A letter invitation is equivalent to arrest. Where the invitation comes from a powerful
group composed predominantly of ranking military officers and the designated
interrogation site as a military camp, this is obviously a command or an order of arrest
(Sanchez vs Demetriou, 46 SCAD 152, 227 SCRA 627).

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Revised Manual for Prosecutors
V. HELPFUL HINTS

1. The conduct of an inquest proceeding should never be initiated in the absence of an


affidavit of arrest.

2. The affidavits of arrest and statements/affidavits of the complainant and his witnesses
may be subscribed before another prosecutor or a notary public but the same should be
re-affirmed before the inquest prosecutor.

3. Inquest proceedings should always be conducted by the prosecutors in proper attire.

4. Inquest proceedings should never be conducted in the prosecutors residence.

5. During the conduct of inquest proceedings, the inquest prosecutor must keep calm and
observe proper decorum.

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TEMPLATES OF INQUEST FORMS

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Revised Manual for Prosecutors
NPS Investigation Form No. 01, s. 2008

Republic of the Philippines


Department of Justice
National Prosecution Service
_____________________
_____________________

INVESTIGATION DATA FORM

To be accomplished by the Office

DATE RECEIVED: NPS DOCKET NO:__________


(stamped and initialed):____________________ Assigned to:________________
Time Received:__________________________ Date Assigned:______________
Receiving Staff:__________________________

To be accomplished by complainant/counsel/law enforcer


(Use back portion if space is not sufficient)

COMPLAINANT/S: Name, Sex, Age & RESPONDENT/S: Name, Sex, Age &
Address Address
___________________________ __________________________
___________________________ __________________________
___________________________ __________________________
___________________________ __________________________
___________________________ __________________________

LAW/S VIOLATED: WITNESS/ES: Name & Address


___________________________ __________________________
___________________________ __________________________
___________________________ __________________________
___________________________ __________________________
__________________________

DATE & TIME of COMMISSION: PLACE of COMMISSION:


___________________________ __________________________
___________________________ __________________________
___________________________ __________________________
___________________________ __________________________
___________________________ __________________________

1. Has a similar complaint been filed before any other office? * YES___ NO___
2. Is this complaint in the nature of a counter-charge? *YES____ NO___
If yes, indicate details below.
3. Is this complaint related to another case before this office? *YES___ NO___
If yes, indicate details below.
I.S. No.:___________________________
Handling Prosecutor:__________________

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Revised Manual for Prosecutors
CERTIFICATION

I CERTIFY, under oath, that all the information on this sheet are true and correct to the best of my
knowledge and belief, that I have not commenced any action or filed any claim involving the same issues in
any court, tribunal, or quasi-judicial agency, and that if I should thereafter learn that a similar action has
been filed and/or is pending, I shall report that fact to this Honorable Office within five (5) days from
knowledge thereof.

_______________________
(Signature over printed name)

SUBSCRIBE AND SWORN TO before me this ___day of ______________, 20__, in


_____________________.

_______________________
Prosecutor Administering Oath

*1,2,3 and Certification need not be accomplished for inquest cases

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Revised Manual for Prosecutors
NPS INQ Form No. 01, s. 2008

Republic of the Philippines


Department of Justice
NATIONAL PROSECUTION SERVICE
__________________________
__________________________

________________________,
Complainant/s,
I.S. No. ___________________
-versus- For:______________________

________________________,
Respondent/s.
x-----------------------------------------x

ORDER
(to submit additional evidence/documents)

_____________________________
_____________________________
_____________________________

In connection with the investigation being conducted in the above-captioned case, you
are hereby directed to submit the following evidence/documents, to wit:

1. _______________________________________________

2. _______________________________________________

3. _______________________________________________

4. _______________________________________________

5. _______________________________________________

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Revised Manual for Prosecutors
within ________ hours from receipt hereof (the period shall not exceed twelve (12) hours,
eighteen (18) hours or thirty-six (36) hours, as the case may be, from arrest); otherwise, the
undersigned shall order the release of the above-named respondent, and this case shall be set for
preliminary investigation.

______________________________, Philippines
________________, 20__.

_____________________
Inquest Prosecutor
(Signature over printed name)

Received copy, this ___day of _____________, 20___.

Copy received by:

_______________________
Investigating/Police Officer
(Signature over printed name)

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Revised Manual for Prosecutors
NPS INQ Form No. 02, s. 2008

Republic of the Philippines


Department of Justice
NATIONAL PROSECUTION SERVICE
__________________________
__________________________

________________________,
Complainant/s,
I.S. No. ___________________
-versus- For:______________________

________________________,
Respondent/s.
x-----------------------------------------x

RELEASE ORDER
(of detained/Arrested Person)

_____________________________
_____________________________
_____________________________

Unless otherwise detained for some other legal cause, you are hereby directed to release
the person of ____________________________ who is presently under your custody in
connection with the above-captioned case, it appearing that: *

respondent was not lawfully arrested pursuant to the provisions


of section 5, Rule 113 of the Revised Rules on Criminal Procedure.

the documents required by the undersigned have not been


submitted by the police investigating officer.

there exists no probable cause on the basis of the evidence


presented.

*check appropriate box/boxes and affix your initial.

In this connection, you are hereby directed to serve upon the above-named respondent the
attached subpoena together with the copies of the charge sheet/complaint, affidavit and other
supporting documents/evidence.

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Revised Manual for Prosecutors
________________________, Philippines.

___________, 20___.

_____________________
Investigating/Police Officer
(signature over printed name)

APPROVED:

_________________________
Chief State/Provincial/City Prosecutor
(signature over printed name)

Received copy, this __day of _________________, 20___.

_______________________
Investigating/Police Officer
(Signature over printed name)

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Revised Manual for Prosecutors
NPS INQ Form No. 03, s. 2008

Republic of the Philippines


Department of Justice
NATIONAL PROSECUTION SERVICE
__________________________
__________________________

________________________,
Complainant/s,
I.S. No. ___________________
-versus- For:______________________

________________________,
Respondent/s.
x-----------------------------------------x

SUBPOENA TO RESPONDENT/S

TO: _____________________________
_____________________________
_____________________________

GREETINGS:

Under by virtue of the authority vested in me by law, you are hereby directed to submit
your counter-affidavit and other supporting documents or affidavits of your witness/es, if any,
to be sworn to before me on __________________, 200__ at ___ a.m./p.m. Attached
is a copy of the complaint and other evidence submitted by the complainant.

You are hereby WARNED that failure on your part to comply with the subpoena shall be
considered as a waiver of your right to present your defense and the case shall be considered
submitted for resolution based on the evidence on record.

WITNESS MY HAND this ___day of _________________, 200__ at


______________, Philippines.

_______________________
INVESTIGATING PROSECUTOR

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Revised Manual for Prosecutors
NPS INQ Form No. 04, s. 2008

Republic of the Philippines


Department of Justice
NATIONAL PROSECUTION SERVICE
__________________________
__________________________

________________________,
Complainant/s,
I.S. No. ___________________
-versus- For:______________________

________________________,
Respondent/s.
x-----------------------------------------x

REQUEST FOR PRELIMINARY INVESTIGATION


AND WAIVER OF ARTICLE 125, REVISED PENAL CODE
(Where Arrest was Properly Effected)

With the assistance of counsel of my choice, I wish to avail of my right to a preliminary


investigation, and for this purpose, I hereby voluntarily waive my rights under the provisions of
Article 125 of the Revised Penal Code. Pending the completion of the preliminary investigation
proceedings, I agree to remain under police custody.

_____________________, Philippines
(Place)
_____________________.
(Date)

_____________________
Respondent
(Signature over printed name)

Assisted By:

_____________________
Counsel
(Signature over printed name)

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Revised Manual for Prosecutors
NPS INQ Form No. 05, s. 2008

CERTIFICATION
(for Information in Inquest Cases)

I hereby certify that the foregoing Information is filed pursuant to Sec. 6, Rule 112 of the
1985 Rules on Criminal Procedures, as amended, the accused not having opted to avail of his right
to preliminary investigation and not having executed a waiver pursuant to Article 125 of the
Revised Penal Code. I further certify that this Information is being filed with the prior authority
of the Chief State Prosecutor/City Prosecutor.

___________________
Inquest Prosecutor
(Signature over printed name)

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Revised Manual for Prosecutors
NPS INQ Form No. 06, s. 2008

Republic of the Philippines


Department of Justice
NATIONAL PROSECUTION SERVICE
__________________________
__________________________

________________________,
Complainant/s,
I.S. No. ___________________
-versus- For:______________________

________________________,
Respondent/s.
x-----------------------------------------x

RELEASE ORDER
(of Recovered Articles)

THE EVIDENCE CUSTODIAN

_____________________________
_____________________________
_____________________________

On the basis of the request made by ___________________ for the release to his
custody of the articles/properties particularly described as follows:

You are hereby directed to release to said ________________, the above-described


articles/properties which are presently under your custody, unless the same are being held for
some other lawful cause.

______________, Philippines, ______________, 20__.

____________________
Inquest Prosecutor
(Signature over printed name)
continued, next page >>

69
Revised Manual for Prosecutors
A P P R O V E D:

_______________________
Chief State/Provincial/City Prosecutor
(signature over printed name)

Received copy, this ___ day of _____________, 20__.

_______________________
Evidence Custodian
(signature over printed name)

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Revised Manual for Prosecutors
NPS INQ Form No. 07, s. 2008

Republic of the Philippines


Department of Justice
NATIONAL PROSECUTION SERVICE
__________________________
__________________________

________________________,
Complainant/s,
I.S. No. ___________________
-versus- For:______________________

________________________,
Respondent/s.
x-----------------------------------------x

REQUEST FOR RELEASE


with
UNDERTAKING
(of Recovered Articles by requesting Party)
_____________________________
_____________________________
_____________________________

I am respectfully requesting the release to my custody of certain articles/properties,


more particularly described as follows:

Which were recovered by the police authorities and presently in the custody of
______________, and in connection therewith, I declare under oath:

1. That I am the lawful owner/possessor thereof, as evidenced by ________________,


copies of which are hereto attached;
2. That said articles/properties are not instruments or tools in the commission of any
offense nor the proceeds thereof;
3. That I undertake to produce the same before your Office or the court when so required;
4. That I have caused the said articles/properties to be photographed/photocopied and
certified by the police custodian as accurately representing the same;
5. That I affirm the affidavit/statement executed by me on _____________ before
________________ and hereby bind myself under penalty of law to appear and
testify thereon in court when so required.
Continued, next page >>

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Revised Manual for Prosecutors
_______________, Philippines, _____________, 20__.

___________________
Requesting Officer
(signature over printed name)

SUBSCRIBED AND SWORN TO before me this _____ day of _________________,


20__, at ______________________, Philippines.

_______________________
Administering Officer
(signature over printed name)

RECOMMENDING APPROVAL:
__________________________
Investigating Prosecutor
(signature over printed name)

APPROVED:

__________________________
Chief State/City/Provincial Prosecutor

72
Revised Manual for Prosecutors
FLOWCHART ON THE INQUEST PROCEEDINGS

INQUEST PROCEDURE
(12 hours for light; 18 hours for less grave offense; 36 hours for grave offenses)

SUSTA FILING OF INFO


RECOMME IN IN
WITH ACTION
ND BY COURT
PROBA FILING OF
BLE CP/PP/C
INFO IN REVER
CAUSE COURT DISMISSAL OF
SE
NO COMPLAINT &
WAIVER SUSTA RELEASE OF
W/O RECOMME ACTION
PROBA ND IN
BY
ARREST BLE RELEASE CP/PP/C
PROPER CAUSE OF REVER FILING OF INFO
LY SE IN COURT
EFFECTE
PRELIMINARY
W/ INVESTIGATION SEE
AFFIDAV WAIVER PROPER PROCEDURE
IT OF OF P.I. BUT
ARREST WITHINN 15
+ IR + SS
REGULAR
P.I
ARREST + RELEASE YES PRELIMINARY
NOT INVESTIGATION
ACTION BY
PROPER
RECOMME CP/PP/CSP
LY CONTINUE WITH INQUEST
EFFECTE NDS
NO
DISMISSAL
OF
COMPLAIN DISMISSAL OF
T+ COMPLAINT
RELEASE OF RESPONDENT

73
Revised Manual for Prosecutors
I. GENERAL RULES

A. CONCEPTS AND PRINCIPLES

1. Summary Investigation refers to the investigation conducted by the


prosecutor to determine the existence or non-existence of probable cause in cases
that do not require preliminary investigation, (Sec. 8, Rule 112, as amended,
Revised Rules on Criminal Procedure) namely those involving offenses in which
the prescribed penalty of imprisonment does not exceed four (4) years and two (2)
months, regardless of the fine.

2. Summary Procedure (as distinguished from summary investigation) refers


to the court procedure in criminal cases covered by Supreme Court Resolution of
1991 as amended, involving offenses in which the penalty prescribed by law does
not exceed six (6) months of imprisonment, or fine not exceeding one thousand
pesos (Php1,000.00).

B. COVERAGE

All offenses punishable by imprisonment of less than four (4) years two (2) months and
one (1) day, viz:

1. Violations of Traffic Laws, Rules and Regulations;


2. Violations of the Rental Law;
3. Violations of Municipal or City Ordinances
4. All other criminal cases where the penalty prescribed by law for the offense charged
is imprisonment not exceeding six months, or a fine not exceeding (P1,000.00), or
both, irrespective of other imposable penalties, accessory or otherwise, or of the
civil liability arising therefrom: provided, however, that in offenses involving
damage to property through criminal negligence, this rule shall govern where the
imposable fine does not exceed ten thousand pesos (P10,000.00).

Offenses with six (6) months imprisonment or fine of P1,000.00:

1. Art. 130 Searching Domicile Without Witnesses


2. Art. 144 Disturbance of Proceedings
3. Art. 151 Resistance and Disobedience to a Person in Authority or the Agents of
Such
4. Art. 153 Tumults and Other Disturbances of Public Order
5. Art. 154 Unlawful Use of Means of Publication and Unlawful Utterances
6. Art. 155 Alarms and Scandals
7. Art. 175 Using False Certificates

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Revised Manual for Prosecutors
8. Art. 178 Using Fictitious Name and Concealing True Name
9. Art. 179 Illegal Use of Uniforms and Insignia
10. Art. 200 Grave Scandal
11. Art. 202 Vagrants and Prostitutes (1st Offender)
12. Art. 217 Abandonment of Minor by Person Entrusted With His Custody
13. Art. 265 Less Serious Physical Injuries
14. Art. 266 Slight Physical Injuries
15. Art. 239 Unlawful Arrest
16. Art. 275 Abandonment of Helpless Person
17. Art. 276 Abandoning a Minor (Paragraph 1)
18. Art. 281 Other Forms of Trespass
19. Art. 282 Grave Threats (Par. 2 [Without Condition])
20. Art. 283 Light Threats
21. Art.285 Other Light Threats
22. Art. 286 Grave Coercion
23. Art. 287 Light Coercion
24. Art. 288 Other Similar Coercion
25. Art. 289 Formation, Maintenance and Prohibition of Combination or
Capital or Labor thru Violence of Threats
26. Art. 290 Discovery of Secrets thru Seizure of Correspondence (Par. 2)
27. Art. 291 Revealing Secrets with Abuse of Office
28. Art. 308 Theft if the amount involved does not exceed P50,000.00
29. Art. 312 Occupation of Real Property or Real Rights in Property
30. Art. 315 Estafa involving P200.00
31. Art. 317 Swindling of Minor
32. Art. 318 Other Deceits
33. Art. 329 Other Mischief (Malicious Mischief)
34. Art. 338 Simple Seduction
35. Art. 339 Acts of Lasciviousness with the Consent of the Offended Party
36. Art. 358 Light Oral Defamation (2nd Par.)
37. Art. 363 Incriminating Innocent Person
38. Art. 364 Intriguing against Honor
39. Art. 389 Light Slander by Deed (2nd Par.)
40. PD 1227 Unlawful Entry to U.S. Naval Facilities
41. PD 603 Non-Support

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Revised Manual for Prosecutors
II. PROCEDURE

Within ten (10) days from assignment of the complaint, the investigating prosecutor shall
initiate the following actions:

1. Act on the complaint based on the affidavits and other supporting documents submitted
by the complainant;

2. Prepare a brief resolution recommending the dismissal of the complaint for the approval
of the Chief State Prosecutor/Regional State Prosecutor, Provincial/ City Prosecutor if he
finds no probable cause;

3. Prepare a resolution and the corresponding Information for the approval of the Chief State
Prosecutor/Regional State Prosecutor, Provincial/City Prosecutor if he finds 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; and

4. File the Information in court if the resolution is approved. The Information shall not
contain a certification that a preliminary investigation has been conducted.

Where the prosecutor opts to conduct preliminary investigation, he/she shall


follow the procedure under Part IV of this Manual.

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Revised Manual for Prosecutors
PART IV. PRELIMINARY INVESTIGATION

I. GENERAL RULES

A. CONCEPTS AND PRINCIPLES

A 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 (Sec. 1, Rule 112,
Revised Rules on Criminal Procedure).

B. NATURE OF A PRELIMINARY INVESTIGATION

1. It is an Executive Function
A preliminary investigation is a non-judicial function. It is essentially
executive in nature (A.M. No. MTJ-00-1256, December 15, 2000). It is a function
of the Office of the National Prosecution Service which is under the control and
supervision of the Department of Justice within the executive branch of the
government.

2. It is Preliminary in Nature
The investigation is advisedly called preliminary, as it is yet to be followed
by the trial proper. The investigating officer acts upon probable cause and
reasonable belief, not proof beyond reasonable doubt. The occasion is for the
presentation of such evidence only as may engender a well founded belief that an
offense has been committed and that the accused is probably guilty thereof
(Mayuga v. Maravilla, 18, SCRA 1115).

3. It is a Summary and Inquisitorial Proceeding.


A preliminary investigation is not a judicial trial or is any part thereof, it
being merely a more or less summary proceeding intended to discover the person/s
who may reasonably be charged with a crime so as to enable the prosecutor to
prepare his Complaint or Information (U.S. v. Yu Tuico, 34 Phil. 2009; U.S. v.
Marfori, 35 Phil. 606).

While it is a summary proceeding, it is done in a scrupulous manner to


prevent material damage to a potential accuseds constitutional right to liberty and
the guaranteed of freedom and fair play (Drilon v. C.A., 258 SCRA 280 [1996]).

It is merely inquisitorial and it is often the only means of discovering the


persons who may be reasonably charged with a crime, to enable the prosecutor to
prepare his Complaint or Information (Tandoc v. Resultan, 175 SCRA 37 [1989]).

4. It is a Judicial Inquiry or Proceeding.

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Revised Manual for Prosecutors
The conduct of a preliminary investigation, which is defined as an inquiry
or proceeding for the purpose of determining whether there is sufficient
ground to engender a well-founded belief that a crime has been committed
and that the respondent is probably guilty thereof, and should be held for
trial is, like court proceedings, because a preliminary investigation is
considered a judicial proceeding wherein the prosecutor or investigating
officer, by the nature of his functions, acts as a quasi judicial officer (Cruz
v. People, 237 SCRA 439, reiterating Cojuangco v. PCGG, 190 SCRA 226
[1990]).

Hence, in a preliminary investigation, the prosecutor or investigating


officer acts as a quasi-judicial officer (A.M. No. MTJ-00-1256, December
15, 2000) although the Department of Justice in itself is not considered a
quasi-judicial body. (Cruz, Jr. v. People, 223 SCRA 439 [1994])

C. RIGHT TO A PRELIMINARY INVESTIGATION

1. It is not a Constitutional Right.


The right to a preliminary investigation is not a constitutional right,
meaning, it is not expressly provided for in the Constitution. It is not therefore
guaranteed by the Constitution unlike for instance, the right to counsel or to
remain silent which is expressly embodied under Sec. 12 of Article III of the
Constitution.

2. It is Merely a Statutory Grant


Rather, the right to a preliminary investigation is a statutory grant
(Salonga vs. Pano, 134 SCRA 277). Hence, a law denying the right to a preliminary
investigation is not unconstitutional (Lozada vs. Hernandez, 92 Phil. 105l). For
instance, Sec. 6 [formerly Sec. 7] of Rule 112 of the Revised Rules on Criminal
Procedure provides for the filing of the Information in inquest cases, even without
the conduct of a preliminary investigation.

3. It is a Personal Right
The right to a preliminary investigation is also a personal right, which can
be waived expressly or impliedly. There is an implied waiver when an accused
refuses to submit his counter-affidavit, or when he fails to invoke such right or to
question the irregularity of the preliminary investigation that was conducted, but
instead submits himself for arraignment and go to trial (People v. Valencia, 214
SCRA 88; People v. de Asis, 228 SCRA 267).

In inquest cases, the accused impliedly waives his right to a preliminary


investigation, if he fails to invoke the same within five (5) days from the time he
learns of the filing of the Information. This five-day period for the filing of a motion
for preliminary investigation after an Information has been filed in court against an

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Revised Manual for Prosecutors
accused who was arrested without a warrant, has been characterized as mandatory
(Sec. 6, Rule 112, supra).

4. It is a Substantive Right

While the right to a preliminary investigation is merely statutory,


nevertheless, it is a substantive right and to withhold it would be to
transgress constitutional due process (Salonga v. Pano, 134 SCRA 438)

D. COVERAGE
All offenses where the penalty prescribed by law is at least four (4) years, two (2)
months and one (1) day, without regard to the fine (Sec. 1, par. 2, Rule 112, supra.).

All offenses punishable by imprisonment of less than four (4) years two (2) months
and one (1) day where the prosecutor believes that a preliminary investigation should be
conducted.

All offenses committed by public officials or employees in connection with the


performance of their official duties and functions.

E. QUANTUM OF EVIDENCE REQUIRED

In preliminary investigations, the evidence required for purposes of filing a


Complaint or Information in court is merely such evidence as would engender a
well founded belief that a crime has been committed and the respondent is
probably guilty thereof, and should be held for trial (Sec. 1, par. 1, Rule 112,
supra.).

1. Probable Cause Defined.


a. Probable cause has been defined as a reasonable ground of
presumption that a matter is or may be well-founded; such a state of facts
in the mind of the prosecutor as would lead a person of ordinary caution
and prudence to believe, or entertain an honest or strong suspicion, that a
thing is so.

The term does not mean actual and positive cause nor does it
import absolute certainty. It is merely based on opinion and reasonable
belief. Thus, a finding of probable cause does not require an inquiry into
whether there is sufficient evidence to procure a conviction. It is enough
that it is believed that an act or omission complained of constitutes the
offense charged. Precisely, there is a trial for the reception of evidence of
the prosecution in support of the charge (Paredes, Jr. v. Sandiganbayan,
G.R. No. 108251, January 31, 1996).

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b. a finding of probable cause needs only to rest on evidence showing that
more likely than not a crime has been committed and was committed by
the suspects. Probable cause need not be based on clear and convincing
evidence of guilt, neither on evidence establishing guilt beyond reasonable
doubt and definitely, not on evidence establishing absolute certainty of
guilt. As well put in Brinegar vs. U.S., while probable cause demands more
than bare suspicion it requires less than evidence which would justify
conviction. A finding of probable cause merely binds over the suspect to
stand trial. It is not a pronouncement of guilt (Webb v. De Leon 247 SCRA
652 [1995]).

c. A probable cause has been defined as the existence of such facts and
circumstances as would excite the belief, in a reasonable mind, acting on
the acts within the knowledge of the prosecution, that the person charged
was guilty of the crime for which he was prosecuted (Cruz, Jr. v. People,
233 SCRA 439 [1994]).

2. No Fixed Formula for Determining Probable Cause.


There is no general formula or fixed rule for the determination of probable
cause, since the same must be decided in light of conditions obtaining in given
situations and its existence depends to a large degree upon the finding or opinion
of the investigating prosecutor conducting the investigation. However, such a
finding should not disregard the facts before the investigating prosecutor nor run
counter to the clear dictates of reason (Fernando v. Sandiganbayan, G.R. No.
96182, Aug. 19, 1992).

3. Sound Discretion of the Prosecutor.


The institution of a criminal action depends upon the sound discretion of
the prosecutor. He may or may not file the complaint or information, follow or not
follow that presented by the offended party, according to whether the evidence, in
his opinion, is sufficient or not to establish the guilt of the accused beyond
reasonable doubt.

The approach of the courts to the quashing of criminal charges necessarily


differs from the way a prosecutor would handle exactly the same question a court
faced with a fifty-fifty proposition of guilt or innocence always decides in favor of
innocence, while a prosecutor, conscious that he represents the offended party, may
decide to leave the problem to the discretion of the court (Venus vs. Desierto, 198
SCRA 196 [1998]).

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F. PURPOSES OF THE CONDUCT OF A PRELIMINARY INVESTIGATION

A preliminary investigation is intended:

1. To secure the innocent against hasty, malicious and oppressive prosecution and to
protect him from an open and public accusation of a crime and from the trouble,
expense and anxiety of a public trial; (People v. Poculan, 167 SCRA 176 [1988]);
Rodis v. Sandiganbayan, 166 SCRA 618 [1998]; Salonga v. Pano, 134 SCRA 438
[1985]; Trocio v. Manta 118 SCRA 241 [1982]; Sausi v. Querubin, 62 SCRA 155
[1975]; and

2. To protect the State from having to conduct useless and expensive trials (Tandoc
v. Resultan, 175 SCRA 37 [1989]).

G. OFFICERS AUTHORIZED TO CONDUCT PRELIMINARY INVESTIGATIONS

The following may conduct preliminary investigations (Sec. 2, par.1, Rule 112,
supra):
1. Provincial or City Prosecutors and their assistants;

The prosecutors authority to conduct preliminary investigation shall include all


crimes cognizable by the proper court in their respective territorial jurisdiction, including
those committed by government officials in relation to their office.

2. National and Regional State Prosecutors and their assistants; and,

3. Other officers as may be authorized by law:

a. The COMELEC is mandated under the 1987 Constitution, not only to investigate
but also to prosecute cases of violation of election offenses (People v. Inting, 187
SCRA 788).

If the prosecutor files an information charging an election offense or


prosecutes a violation of the election law, it is because he has been deputized by
the COMELEC. He does not do so under the sole authority of his office (People v.
Basilla, 179 SCRA 87).

b. The Ombudsman is clothed with the authority to conduct preliminary


investigations and to prosecute all criminal cases involving public officers and
employees, not only those within the jurisdiction of the Sandiganbayan, (Sec. 15
(1) and Sec. 11 (4) of R.A. No. 6770 [An Act providing for the Functional and
Structural Organization of the Office of the Ombudsman, and for other
purposes]) but also those within the jurisdiction of the regular courts (Uy v.
Sandiganbayan, 354 SCRA 651, 657-659 [2001]; Reiterated in Decin v. Tayco, GR

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No. 14996, February 04, 2007 and Chavez v. C.A G.R. No. 125813, February 06,
2007).

The power to investigate and prosecute cases granted by law to the


Ombudsman pertains to any act or omission of any public officer or employee
when such act or omission appears to be illegal, unjust, improper or inefficient.

NOTE: A prosecutor has a shared authority to investigate and prosecute


Ombudsman cases not cognizable by the Sandiganbayan. With respect
to cases cognizable by the Sandiganbayan, the Ombudsman has primary
authority to investigate and exclusive authority to file and prosecute
Sandiganbayan cases (Uy v. Sandiganbayan, supra.).

Under DOJ Circular No. 26 dated July 3, 2008, a prosecutor has legal
authority to take cognizance of, and conduct preliminary
investigation/inquest proceedings on complaints filed before him/her
involving violations of penal laws, regardless of whether or not the
respondents therein are public officials and/or employees; PROVIDED that,
for cases cognizable by the Sandiganbayan in the exercise of its original
jurisdiction under Sec. 4(a), (b), and (c) of RA 7975, as amended, the
Ombusman may take over at any stage of the investigation, in line with its
primary jurisdiction under the last sentence of Sec. 15(1) of RA 6770,
conformably with the ruling in Honasan II vs. The Panel of Investigating
Prosecutors of the DOJ (GR No. 159747, April 13, 2004, 427 SCRA 46).

In other words, resolution in cases involving government officials falling


within the jurisdiction of the Regional Trail Courts (RTCs), Municipal Trial
Courts (MTCs) or Metropolitan Trial Courts (MeTCs) need not be forwarded
to the Office of the Ombudsman for review or approval.

However, resolutions of cases falling within the jurisdiction of the


Sandiganbayan shall be forwarded by the Chief State/Provincial/City
Prosecutor to the Office of the Ombudsman for review pursuant to its primary
jurisdiction.

c. The Presidential Commission on Good Government with the assistance of the


Office of the Solicitor General and other government agencies was empowered
under Executive Order No. 14, series of 1986, to file and prosecute before the
Sandiganbayan, all cases investigated by it under Executive Order No. 1, dated
February 28, 1986 and Executive Order No. 2 dated march 12, 1986, as may be
warranted by its findings. The cases referred to under E.O. No. 1 and E.O. No. 2
were the ill-gotten cases of former President Ferdinand Marcos.

NOTE: the authority to investigate includes the authority to conduct a


preliminary investigation (Zaldivar v. SAndiganbayan, 160 SCRA 843

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[1988]; Cojuangco v. PCGG, 190 SCRA 226 [1990]; Virata v.
Sandiganbayan, 202 SCRA 680 [1991]).

NOTE: for other violations of the Anti-Graft and Corrupt Practices Act not
otherwise falling under E.O. No. 1 and E.O. No. 2 as aforementioned, the
jurisdiction is vested in the Ombudsman and other duly authorized
agencies such as the National Prosecution Service of the Department of
Justice, unless authorized by the President in accordance with Sec. 2(b) of
E.O. No. 1 (Republic of the Philippines v. Migrinio, 189 SCRA 289 [1990]).

The authority of the aforementioned officer/s government agencies to


conduct preliminary investigations shall include all crimes cognizable by the
proper court in their respective territorial jurisdiction (Sec. 2, par. 2, Rule 112,
supra).

II. PROCEDURE

A. COMMENCEMENT OF THE PRELIMINARY INVESTIGATION

A preliminary investigation proceeding is commenced:

1. By the filing of a complaint by the offended party or any competent person (Ebarle v.
Sucaldito, 156 SCRA 803 [1987]) directly with the office of the investigating prosecutor;

NOTE: The sworn complaint shall be accompanied by an accomplished


Preliminary Investigation Data Form (please refer to NPS Investigation Form No.
01, s. 2008 on p. 108 of this Manual) and other supporting

2. By referral from or upon request of the law enforcement agency that investigated a
criminal incident;

NOTE: when the referral came from or is upon the request of a law enforcement
agency that investigated the complaint, the latter shall submit the original
or duplicate original or certified machine copies of the affidavit/s of the
complainant/s and his/their witness/es.

3. Upon request of a person arrested or detained pursuant to an arrest without warrant who
executes a waiver in accordance with the provisions of Article 125 of the Revised Penal
Code, as amended;

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4. By an Order or upon the directive of the court or other competent authority; or

5. Upon the initiative of the Commission on Elections, or upon a written complaint by any
citizen, a candidate, a registered political party, a coalition of registered parties or an
organization under the party-list system or any accredited citizen arm of the Commission
on Elections in cases of election offenses; (Sec. 3 and 5, Rule 34 of the COMELEC Rules of
Procedure).

a. Contents of the Complaint

The complaint filed by the complainant with the prosecutors office shall state,
among others:

1. The full and complete names and exact home, office or postal addresses of
the complainant/s and his/their witness/es;

2. The full and complete name and exact home, office or postal address of the
respondent/s;

3. The offense/s charged and the place and exact date and time of its/their
commission; and,

4. Whether or not there exists a related case and, if so, the docket number of
said case and the name of the investigating prosecutor thereof.

b. Number of Copies of Affidavits; Other Requirements

The complaint and supporting affidavits shall be in such number of copies


as there are respondents, plus five (5) copies for the court/office file.

Where a complaint charges multiple offenses which cannot be the subject


of one incident or information, the complainant may be required to submit such
additional copies of the complaint and supporting affidavits as there are offenses
charged in the complaint.

If the offense charged is punishable by imprisonment not exceeding one (1)


year or a fine not exceeding Five Thousand Pesos (Php5,000.00) and the parties
to the case are all residents of the same city or municipality, the complaint shall be
accompanied by the certification required under Sec. 412 (a) of RA 7160, The
Local Government Code of 1991. Otherwise, the prosecutor shall not take
cognizance of the case.

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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 (Sec. 3, par. (a), Rule 112, supra.).

B. INITIAL ACTION BY THE INVESTIGATING PROSECUTOR ON THE COMPLAINT


FILED

Within ten (10) days from receipt of the complaint by the prosecutor, he/she shall:

1. Inhibit himself from conducting a preliminary investigation in a case wherein

a. He or his wife or child is interested as heir, legatee, creditor or otherwise;

b. He is related to either party within the 6th degree of consanguinity or affinity or to


counsel within the 4th degree; or

c. He has been named executor, administrator, guardian, trustee or counsel.

NOTE: in this particular instance, the conduct of the preliminary investigation


shall be re-assigned to another investigating prosecutor.

2. Dismiss the same if he finds no ground to continue with the inquiry (please refer to NPS
INV Form No. 02, s.2008 on p.110 of this Manual.):

a. That the offense charged in the complaint was committed outside the territorial
jurisdiction of the office of the investigating prosecutor;

b. That at the time of the filing of the complaint, the offense/s charged therein had
already prescribed;

c. That the complainant is not authorized under the provisions of pertinent laws to
file the complaint; and

d. That the complainant failed to submit a barangay certification for offenses covered
by the Katarungang Pambarangay Law.

e. That no clearance from the Department of Labor and Employment or from any
regional office thereof is attached to the complaint where the complainant is an
employer and the respondent is his/her employee. (Ministry Circulars Nos. 8 and
15 dated 1982 and 1985 respectively)

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3. Where the respondent is a child and he is above fifteen (15) years of age but below eighteen
(18), the prosecutor shall determine whether or not the child acted with discernment.

If he/she acted with discernment, the prosecutor shall:

a. Refer the case to the concerned Lupong Tagapamayapa for the diversion
proceedings, if the case falls within the jurisdiction of the Lupon; or

b. Conduct the requisite diversion proceedings if the penalty for the offense charged
is beyond the jurisdiction of the Lupon but does not exceed six (6) years of
imprisonment; or

c. Proceed with the preliminary investigation if the penalty for the offense charged is
imprisonment of more than six (6) years, applying the rules and procedure on the
conduct of the preliminary investigation as herein provided.

4. Issue a subpoena to the respondent, attaching thereto a copy of the complaint together
with the affidavits of witnesses and other supporting documents (Sec. 3 [b], Rule 112,
supra.). (please refer to a NPS INV Forms Nos. 03, 04 and 05, s. 2008 on pp.112, 113 and
114 of this Manual)

C. SERVICE OF THE SUBPOENA TOGETHER WITH THE COMPLAINT AND


SUPPORTING AFFIDAVITS AND OTHER DOCUMENTS TO THE RESPONDENT/S

1. To Prevent Loss of Documents:

Whenever circumstances warrant and to prevent the loss of documents in the


course of the service of a subpoena through ordinary modes, the investigating
prosecutor may require the respondent or other parties to appear before him on a
designated date, time and place and then and there personally furnish them with copies
of the complaint, supporting affidavits and other documents.

At the said or any other setting, the respondent shall have the right to examine all
other evidence submitted by the complainant and to obtain copies thereof at his
expense. If such records are voluminous, the complainant may be required to specify
and identify those which he intends to present against the respondent to support the
charge against the latter and these shall be made available for examination, copying or
photographing by respondent at his expense (Sec. 3(b), par. 2, Rule 112, supra;
Commissioner of Internal Revenue vs Court of Appeals, 257 SCRA 200).

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Failure on the part of the respondent or his counsel/representative to appear
before the investigating prosecutor to obtain copies of the complaint, supporting
affidavits and other documents despite receipt of notice or subpoena shall be
considered a waiver of respondents right to be furnished copies of the complaint,
supporting affidavits and other documents, as well as to examine all other pieces of
evidence submitted by the complainant.

2. Service to a Respondent Residing in a Distant Place

The investigating prosecutor shall issue and sent the subpoena, together with
copies of the complaint, supporting affidavit/s and other documents, by
registered/special delivery mail with return card to a respondent who resides in a
distant place.

3. Where Respondent Cannot be Subpoenaed or if Subpoenaed Does Not


Submit Counter-Affidavit

If a respondent cannot be subpoenaed, as, for instance, he transferred residence


without leaving any forwarding address, or if subpoenaed, does not submit his/her
counter-affidavit, the investigating prosecutor shall resolve the complaint based on
the evidence presented by the complainant (Sec. 3, par. (d), Rule 112, supra.).

4. Objects as Evidence

Objects as evidence need not be furnished either party but shall be made accessible
for examination, copying or photographing at the expense of the requesting party
(Sec. 3, par (b), Rule 112, supra.).

5. Guidelines to be Observed in the Service of Subpoenas

To expedite the conduct of a preliminary investigation, the following guidelines


shall be observed in the service of subpoenas:

a. Service of subpoena and all papers/documents required to be attached thereto,


shall be by personal service to be performed by the regular process servers. In their
absence, the cooperation of the Provincial/City/Municipal Station Commanders of
the Philippine National Police (PNP) maybe requested for the purpose.

b. Under other circumstances, where personal service cannot be effected but the
respondent cannot be considered as incapable of being subpoenaed, as when he
continues to reside at his known address but the return states that he has left his
residence and his return is uncertain or words of similar import, service of

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subpoena and its attachments shall be effected by registered mail with return card
at respondents known home/office address. On the face of the envelope shall be
indicated:

1. The name and return address of the sender, and the typewritten/printed
phrase First Notice Made on ________, thus instructing the
postmaster/postal employee of the necessity of informing the sender of the
date that the first notice was made on the addressee; and

2. The typewritten/printed request: If not claimed within five (5) days from
the first notice, please return to sender.

c. Within ten (10) days from receipt of the unclaimed/returned envelope the
investigating prosecutor may proceed to resolve the complaint on the basis of the
evidence presented by the Complainant (Sec. 3 (d), Rule 112, supra; DOJ
Memorandum Circular No. 25 dated 02 October 1989).

d. If the envelope remained unclaimed or is not returned within 20 days from


mailing, the investigating prosecutor may proceed to resolve the complaint on the
basis of the evidence presented by the complainant.

D. SUBMISSION OF THE COUNTER-AFFIDAVIT/S BY THE RESPONDENT/S

Within ten (10) days from receipt of the subpoena together with the complaint and
supporting affidavit/s and document/s, the respondent shall submit his counter-affidavit and that
of his witness/es and other supporting documents which shall be subscribed and sworn to and
certified based on the NPS Sample Format A s. 2008 on p. 131 of this Manual. Copies of the
counter-affidavit/s and supporting documents, if any, shall be furnished the complainant/s by the
respondents.

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1. Extension of Time within which to Submit Respondents Counter-Affidavit

No motion or request for extension of time to submit counter-affidavits shall be


allowed or granted by the investigating prosecutor except when the interest of justice
demands that the respondent be given a reasonable time or sufficient opportunity to:

a. Engage the service of counsel in order to assist him during the preliminary
investigation proceedings;

b. Examine or verify the existence, authenticity or accuracy of voluminous


records, files, accounts or other papers or documents presented or
submitted in support of the complaint; or

c. Undertake studies or research on novel, complicated or technical questions


or issues of law and of facts attendant to the case under investigation.

Extension of time to submit counter-affidavit for any of the reasons stated above
shall not exceed ten (10) days. Additional extensions may be authorized by the Chief
State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor concerned.

2. Filing of a Motion to Dismiss, Memorandum or Motion in Lieu of a Counter-


Affidavit

a. General rule

A memorandum, manifestation or motion to dismiss signed by counsel of


the respondent and filed before the prosecution office is a prohibitive pleading
(Commissioner of Internal Revenue v. Court of Appeals, supra) and cannot take
the place of a counter-affidavit. It should be ignored. Only a counter-affidavit
subscribed and sworn to by respondent before the public prosecutor can dispute
or put at issue the allegations in the complaint.

Thus, a respondent relying on the manifestation, memorandum or motion


to dismiss filed by his counsel is deemed to have not controverted complainants
evidence. (DOJ Resolution No. 109, Series of 1990, I.S. No. 89-243 re the case of
Bulacan Garden Corporation v. Filomena, OPP, Bulacan.)

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However, if such memorandum, manifestation or motion to dismiss is
verified by the respondent himself, the same may be considered as his counter-
affidavit.

All the grounds for the dismissal of the complaint, as well s objections to
the sufficiency thereof, shall be alleged or incorporated in the counter-affidavit and
shall be resolved by the investigating prosecutor jointly on the merits of the case.

b. Exceptions

The investigating prosecutor may, however, grant a motion to dismiss filed by a


respondent who is yet to file or has not filed his counter-affidavit if the said motion
is verified and satisfactorily establishes, among others:

1. The circumstances specified in II B (2) of this Part;

2. The fact that the complaint, or one similar thereto or identical therewith,
has previously been filed with the Office and has been fully adjudicated
upon on the merits after due preliminary investigation proceedings; or

3. The extinction of respondents criminal liability by reason of death,


pardon, amnesty, repeal of the law under which prosecution is sought, or
any other legal causes.

3. Effect of the filing of a Motion to Dismiss or a Motion for a Bill of


Particulars and Other Similar Pleadings

The filing of a motion for the dismissal of the complaint or for the submission of a
bill of particulars shall not suspend or interrupt the running of the period for the
submission of the counter-affidavit/s and other supporting documents.

4. Action on Motions to Dismiss on the Basis of an Affidavit of Desistance

An affidavit of desistance is viewed with suspicion and reservation and regarded as


exceedingly unreliable. It is merely an additional ground to buttress the defense of the
respondent. The investigating prosecutor must be able to discern other circumstances
which, when coupled with the desistance, creates doubt as to respondents criminal
liability. If there is none, then the complaint may be dismissed for lack of insufficient
evidence and not on the basis of an affidavit of desistance.

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5. Suspension of Proceedings Due to the Existence of a Prejudicial Question

Upon motion of a party or when raised in a counter-affidavit, the


investigating prosecutor shall suspend preliminary investigation proceedings if the
existence of a prejudicial question is satisfactorily established.

a. Concept of a Prejudicial Question

A prejudicial question is one, the resolution of which is a logical


antecedent of the issue involved in a case and the cognizance of which pertains to
another tribunal (Ras v. Rasul, 100 SCRA 125 [1980]; Quiambao v. Osorio, G.R.
No. 48157, March 16, 1988.).

It is based on a fact distinct and separate from the crime charged but so
intimately connected with it that it determines the guilt or innocence of the
accused. To suspend the criminal action, it must not only appear that said case
involves facts immediately related to those upon which the criminal prosecution
would be based but also that in the resolution of the issue or issues raised in the
civil case, the guilt or innocence of the accused would necessarily be determined.
(Donato v. Luna, G.R. No. 53642, April 15, 1988; Prado v. People, 133 SCRA 602
[1984]; and Librodo v. Coscolluela, Jr., 116 SCRA 303 [1982])

b. Elements of a Prejudicial Question

The essential elements of a prejudicial question are:

1. The civil action involves an issue similar or intimately related to the issued
raised in the criminal action;

2. The resolution of such issue determines whether or not the criminal action
may proceed; (Sec. 5, Rule 111, supra); and

3. The cognizance of the said issue pertains to another tribunal (Cf. Ras v.
Rasul, supra; Quiambao v. Osorio, supra).

c. Issuance of an Order Suspending the Proceedings Due to the Existence


of a Prejudicial Question; Written Approval of the Head of Office
Required

All orders suspending the preliminary investigation based on the


existence of a prejudicial question issued by the investigating prosecutor
shall have the written approval of the Chief State Prosecutor/Regional State
Prosecutor/Provincial/City Prosecutor concerned or his duly designated
assistant. (please refer to NPS INV Form N0. 06, s. 2008 on p. 115 of this
Manual)

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Upon approval and issuance of the order, the complaint is
considered archived.

E. WHEN TO SET CASE FOR CLARIFICATORY QUESTIONING

The investigating prosecutor may set a hearing for clarificatory questioning within ten
(10) days from the submission of the counter-affidavit/s and other documents or from the
expiration of the period of their submission, to propound clarificatory questions to the parties or
their witnesses if he believes that there are matters which need to be inquired into personally by
him. (please refer to NPS INV Form No. 07, s. 2008 on p. 116 of this Manual)

1. No Right to Examine or Cross-Examine

In said hearing, the parties shall be afforded the opportunity to be present


but without the right to examine or cross-examine. If they so desire, they may
submit written questions to the Investigating Prosecutor who may propound such
questions to the parties or witnesses concerned (Sec. 3 (e), Rule 112, supra).

2. Record/Notes During the Clarificatory Hearing

The investigating prosecutor may record the facts and issues clarified
and/or the questions asked and answer/s given during the clarificatory
questioning which shall be signed by the parties concerned and/or their respective
counsels. Said notes shall form part of the official record of the case.

Parties who desire to file an appeal or petition for review of the


investigating prosecutors resolution may, at their option, cite specific portions of
the oral testimony of any of the parties/witnesses by referring to the notes taken
by the investigating prosecutor.

3. No Right to Counsel

It has been held that there is nothing in the rules which render a
preliminary investigation invalid without the assistance of counsel. (People v.
Narca, 275 SCRA 696)

NOTE: A confession obtained however, during the preliminary investigation


without the assistance of counsel is inadmissible (People v. Abano, 145 SCRA 555;
People v. Ayson, 175 SCRA 216; People v. Ecoridal, G. R. Nos., 138934-35,
January 06, 2002).

The clarificatory questioning shall be terminated within five (5) days from
its inception.

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F. REPLY-AFFIDAVITS, REJOINDERS AND MEMORANDA; WHEN TO ALLOW
THE FILING THEREOF

The investigating prosecutor shall not require or allow the filing or submission of reply-
affidavits and/or rejoinders except:

1. Where new issues of fact or questions of law which are material and substantial in nature
are raised or invoked in the counter-affidavit or subsequent pleadings; and,

2. When there exists a need for said issues or questions to be controverted or rebutted,
clarified or explained to enable the investigating prosecutor to arrive at a fair and
judicious resolution of the case.

In such a case, the period for the submission of reply affidavits or rejoinders shall
in no case exceed five (5) days unless a longer period is authorized by the Chief State
Prosecutor/Regional State Prosecutor/ Provincial or City Prosecutor concerned.

Neither shall the investigating prosecutor require nor allow the filing or
submission by the parties of memoranda unless the case involves difficult or complicated
questions of law or of fact. In any event, the filing of memoranda by the parties shall be
done simultaneously and the period therefor shall not exceed ten (10) days, unless a longer
period is authorized by the Chief State Prosecutor/ Regional State Prosecutor/ Provincial
or City Prosecutor concerned (please refer to NPS Sample Format A, s. 2008 on p. 131
of this Manual).

G. WHEN COMPLAINTS MAY BE CONSOLIDATED

The following complaints shall, as far as practicable, be consolidated for preliminary


investigation purposes, (please refer to NPS INV Form No. 08, s. 2008 on p. 117 of this Manual)
and shall be assigned to the prosecutor handling the complaint with the lowest docket number or
to another prosecutor at the discretion of the head of office and the consolidated complaints shall
be jointly heard by said investigating prosecutor:

1. When there are charges and counter-charges;

2. When the complaints arose from one and the same incident or transaction or series of
incidents or transactions; and

3. Cases involving common parties and founded on factual and/or legal issues of the same or
similar character.

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H. ACTIONS ON MOTIONS TO DISQUALIFY/INHIBIT

1. If a motion to disqualify/inhibit the investigating prosecutor is filed by any of the


parties at any stage of the preliminary investigation, the same shall be forwarded
to the head of office who may designate another investigating prosecutor to handle
the said preliminary investigation.

2. The Secretary of Justice, the Chief State Prosecutor or the Regional State
Prosecutor shall designate a prosecutor from another province or city within the
region or a state prosecutor in the Regional State Prosecution Office, as Acting City
or Provincial Prosecutor, to investigate and prosecute a case in particular
provincial or city prosecution office (par.11, DOJ Order No. 318 dated 28 August
1991 [found in Appendix C on p. 304 of this Manual], as amended by DOJ Order
No. 54 dated 20 February 1992 [Appendix D on p. 308]). (please refer to NPS
INV Form No. 09, s. 2008 on p. 118 of this Manual).

I. SUBMISSION OF THE CASE FOR RESOLUTION

The investigating prosecutor shall consider the case submitted for resolution:

1. When the respondent cannot be subpoenaed or, if subpoenaed, does not submit his
counter-affidavit within the reglementary period. In such a case, the investigating
prosecutor shall base his resolution on the evidence presented by the complainant (Sec. 3
(d), Rule 112, supra); or

2. Upon submission by the parties of their respective affidavits and supporting proof or
documents, in which event, he shall, upon the evidence thus adduced, determine whether
or not there is sufficient ground to hold the respondent for trial (Sec. 3(f), Rule 112, supra).

J. PREPARATION OF THE RESOLUTION

1. When There is Lack of Probable Cause

If the investigating prosecutor does not find sufficient basis for the
prosecution of the respondent, he shall prepare the resolution recommending the
dismissal of the complaint.

2. When There is a Finding of Probable Cause

If the investigating prosecutor finds that probable cause exists, he shall


prepare the resolution and the corresponding Information or Complaint in
appropriate cases.

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Where the respondent is a public officer or employee or a member of the
Philippine National Police (PNP), the investigating prosecutor shall also
determine whether or not the offense with which he is charged was committed in
relation to his office and, if so committed, such fact should be alleged in the
Information to be filed with the Sandiganbayan through the Office of the
Ombudsman. (Republic v. Maximianao Asuncion, G.R. No. L-108208, March
1994)

3. Form of the Resolution and Number of Copies

The resolution shall be written in the official language, personally and


directly prepared and signed by the investigating prosecutor (please refer to a
Sample Resolution on p. 119 of this Manual). It shall be prepared in as many copies
as there are parties, plus five (5) additional copies.

a. Caption of resolution

The caption of the resolution shall indicate the:

1. Names of all the complainants and all of the respondents;

2. Case Number/s, otherwise known as the Investigation Slip Number/s (I.S.


No.);

3. The offense/s charged;

4. The date of the filing of the complain with the office;

5. The date of the assignment of the case to or receipt of the case record by the
investigating prosecutor; and

6. The date that the case was submitted for resolution.

b. Names of parties

The complete names of all the complainants and respondents in the case
shall be set out in the caption of the resolution. It is not proper to use the phrase
et.al. to refer to other complainants and respondents.

The name/s of the victim/s or injured party/ies, not their representative/s, shall
appear in the caption. In cases referred to the prosecution by the law enforcement
agency where there is no identified victim, as in prohibited drugs cases, the
complainant shall be the police station involve, followed by the name and
designation of the police officer representing the police station.

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In the case of a corporation or judicial entity, its corporate name or identity
shall be indicated and written as follows, X Corporation, represented by its
(position title), (name of corporate officer).

c. Case Number

The number of a case shall be based on the following system of sequential codes:

Sequential codes:

o Roman numeral NPS region and OCSP number


o Two (2) digit number city/provincial office
o Small letter - provincial substation
o PI or INQ PI for regular preliminary investigation or summary
investigation case; INQ for inquest case
o Two (2)-digit number last two (2) digits of the year
o Capital letter month (A to L for January to December,
respectively)
o Five (5) digit number series number for an entire calendar year

Illustrative examples:

o I-01-INV-08A-00001
I - Region I
01 - ORSP
INV - regular PI or summary investigation case
08 - year 2008
A - month of January
00001 - first regular PI/summary investigation case
for year 2008

o I-05a-INQ-08A-00010
I - Region I
05 - OPP La Union
a - Agoo Sub-Station
INQ - inquest case
08 - year 2008
A - month of January
00010 - 10th inquest case of year 2008

o XV-01-INV-08L-01000
XV - National Capital Region
01 - OCP Antipolo
INV - regular PI or summary investigation case

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08 - year 2008
L - month of December
01000 - 1,000th PI/summary investigation case for
year 2008

o XVI-INV-08L-03000
XVI - OCSP
INV - regular PI or summary investigation
08 - year 2008
L - month of December
03000 - 3,000th PI/summary investigation case for
year 2008

d. Designation of Offense/s Charged

For offenses that are punishable under the Revised Penal Code, the caption
shall set forth the denomination of the offense and the specific article and
paragraph of the statute violated.

Where there is another charge or countercharge in the same case having


one case number or in case of a consolidated resolution involving two or more
criminal cases with two or more docket numbers, the caption shall also contain
said information.

e. Contents of the Body of the Resolution

In general, the body of resolution should contain:

1. A brief summary of the facts of the case;

2. A concise statement of the issues involved;

3. Applicable laws and jurisprudence; and

4. The findings, including an enumeration of all the documentary evidence


submitted by the parties and recommendations of the investigating
prosecutor.

All material details that should be found in the information prepared by the
Investigating Prosecutor shall be stated in the resolution.

f. Parts of a Resolution

As a rule, the body of a resolution is made up of four parts, namely:

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1. Part 1 shall state the nature of the case as disclosed in the evidence presented
by the complainant such as his affidavit-complaint, the affidavit of witnesses
and documentary and physical evidence. The affidavits shall be numbered
in the order of the presentation of the prosecution witnesses as disclosed in
the list of witnesses appearing in the information. As for the documentary
evidence, they shall be alphabetically marked as they would be marked
during the pre-trial and trial stages of the case.

2. Part 2 shall contain the version of complainant of the incident. The


presentation of the complainants case should be concise and shall not be
cluttered with details that are not necessary to show the elements of the
offense.

3. Part 3 shall allege the respondents version of the incident. This must also
be concise.

4. Part 4 shall contain the discussion, analysis and evaluation by the


prosecutor of the evidence presented by the complainant and the
respondent, without relying on the weakness of the defense of the
respondent. It shall also contain the conclusion of the prosecutor. The
complainants and respondents versions of the incident need not be
repeated in this part except to point out excerpts relating to the existence or
absence of the elements of the crime. Citations of pertinent laws and
jurisprudence should support the conclusions reached. Where numerical
values are important, the number shall be written in words and figures.

g. Parties Who Need to be Furnished with a Copy of the Resolution

The complete names and addresses of the complainant and the respondent
shall be set out at the end of the resolution after the signature of the investigating
prosecutor and the head of the Prosecutors Office concerned under the phrase:
Copy furnished;.

If the parties are represented by counsel and the latters appearance is


entered formally in the record, the counsel, not the party, shall be given a copy of
the resolution. (Sec. 4, par. 1, Rule 112, supra)

h. Signatures and Initials of Investigating Prosecutor

The investigating prosecutor shall sign the resolution and if the resolution
consists of two or more pages, the prosecutor shall initial all of said pages,
excluding the signature page.

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4. Period to Conduct the Preliminary Investigation

The preliminary investigation of complaints shall be terminated and resolved


within a period of sixty (60) days from the date of assignment to the investigating
prosecutor, with a maximum of two (2) 15-day extensions in the following cases:

a. Capital offenses
b. Complex issues
c. With counter-charges
d. Consolidation of related complaints
e. Reassignment
f. Other urgent/valid reasons

NOTE: Pursuant to Sec. 90 of RA 9165, otherwise known as the Comprehensive


Dangerous Drugs Acts of 2004, the preliminary investigation of illegal drugs cases
shall be terminated within thirty (30) days from the date of filing.

5. Written Approval Required in the Dismissal of a Complaint or the Filing of


an Information in Court

No Complaint/Information may be filed or dismissed by an investigating


prosecutor without the prior written authority or approval of the Provincial, City or Chief
State Prosecutor or the Ombudsman or his Deputy (Sec. 4, par. 3, Rule 112, supra).

K. TRANSMITTAL OF THE RECOMMENDATORY RESOLUTION AND


INFORMATION TOGETHER WITH THE COMPLETE RECORD OF THE CASE

The investigating prosecutor shall forward his recommendatory (please refer to a Sample
Resolution on p. 119 of this Manual) and Information, together with the complete records of the
case, to the Chief State/Regional State/Provincial/City Prosecutor concerned within five (5) days
from the date of his resolution. (Sec. 4, par. 2, Rule 112, supra.)

1. Preparation of the Information and its Contents

The Information shall be personally and directly prepared by the investigating


prosecutor or such other prosecutor designated for the purpose and signed by him. It shall
state and contain, in addition to the requirements of the Rules of Court on the sufficiency
of the allegations in an Information, the following:

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The full name and aliases, if any, and address of the accused;

The age and date of birth of the complainant or the accused, if eighteen (18)
years of age or below

The full names and addresses of the parents, custodian or guardian of the minor
complainant or accused, as the case may be;

The place where the accused is actually detained;

The full names and addresses of the complainant and witnesses;

A detailed description of the recovered items, if any;

The full name and addresses of the evidence custodian;

Specify aggravating and qualifying circumstances, if any (please refer to


Department Circular No. 50, s. 2000 found in Appendix E on p. 309 of this
Manual); and

The bail recommended, if the charge is bailable.

The investigating prosecutor shall certify under oath that he or she, as


shown by the record, as an authorized officer, had 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; and that he is filing the Information with the prior authority and
approval of the Chief State/Provincial/City Prosecutor concerned (Sec. 4, par.
1, Rule 112, supra). (please refer to Sample Information Format on pp. 123-129
of this Manual)

a. Lack of a Certification

If the preliminary investigation was actually conducted by the prosecutor,


the absence of a certification (please refer to NPS Sample Format B, s. 2008 on
p. 133 of this Manual) does not vitiate the information, as a preliminary
investigation is not an essential part of the Information.

b. Designation of Offense Not Binding Upon the Court

The designation of the offense is not binding upon the Court (Cinco v.
Sandiganbayan, 96 SCRA 86).

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2. Recommended Bail; How Written

The bail recommended in the resolution shall be stated in the Information, written
in words and figures, and initialed by the investigating prosecutor.

3. Documents to be Attached to the Information

An Information that is filed in court shall, as far as practicable, be


accompanied by a copy of the resolution of the investigating prosecutor, the
complainants affidavit, the sworn statements of the prosecutions witnesses, the
respondents counter-affidavit and the sworn statements of his witnesses and such
other evidence as may have been taken into account in arriving at a determination
of the existence of probable cause (Lim v. Felix, G.R. No. 94054-57; Fernandez v.
Felix, 194 SCRA 292 [1991]; Allado v. Diokno, 232 SCRA 192 [1994]).

4. Confidentiality of Resolutions

All resolutions prepared by an investigating prosecutor after preliminary


investigation, whether his recommendation be for the filing or dismissal of the
case, shall be held in strict confidence and shall not be made known to the parties,
their counsel and/or to any unauthorized person until the same shall have been
finally acted upon by the Chief State/Regional State/Provincial/City Prosecutor or
his duly authorized assistant and approved for promulgation and release to the
parties.

Any violation of the foregoing shall subject the investigating prosecutor or


the employee of the office concerned to severe disciplinary action.

L. ACTION OF THE CHIEF STATE/REGIONAL STATE/PROVINCIAL OR CITY


PROSECUTOR ON THE RECOMMENDATORY RESOLUTION

The Chief State/Regional State/Provincial or City Prosecutor concerned shall act on all
resolutions within a period of thirty (30) days from receipt thereof, extendible for another thirty
(30) days in cases involving complex issues and/or heavy workload of the head of office, by either:

1. Approving the resolution and directing the transmittal of a copy thereof to the parties; or,
2. Disapproving the resolution and returning the same to the investigating prosecutor for
further appropriate action; or
3. Reversing the recommendation of the investigating prosecutor, in which case, the Chief
State/Regional State/Provincial or City Prosecutor

a. May file the corresponding Information in court (except the Regional State
Prosecutor); or

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b. Direct any other state prosecutor or assistant prosecutor, as the case may be, to do
so.

In both instances, there is no more need for the head of office concerned to conduct
another preliminary investigation (Sec. 4, par. 3 Rule 112, supra.).

M. REOPENING OF THE PRELIMINARY INVESTIGATION

After a case under preliminary investigation has been submitted for resolution under the
provisions of the preceding section but before the approval and promulgation of said resolution,
the preliminary investigation may, upon motion of a party, be reopened for the purpose of
receiving newly discovered evidence and/or in cases where respondent has not been notified of
the complaint. The reopening should be with the prior authorization of the Chief State/Regional
State/Provincial or City Prosecutor concerned. The preliminary investigation shall be reopened
subject to the following conditions:

1. The motion is verified and a copy thereof furnished the opposing party;

2. The motion is accompanied with the newly discovered evidence and/or respondents
counter-affidavit; and,

3. The motion sufficiently and satisfactorily shows valid and justifiable reason for the failure
of the Movant to submit the newly discovered evidence or the counter-affidavit during the
preliminary investigation.

N. PROMULGATION OF THE RESOLUTION; MODES OF SERVICE

The resolution shall be promulgated by furnishing the parties or their counsel a copy
thereof by:

1. Personal service by process servers, law enforcement or barangay personnel; or

2. Registered mail with return card to the parties

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O. FILING OF THE INFORMATION IN COURT; RULES TO FOLLOW

1. An Information filed in court shall be supported by the affidavits and counter-affidavits of


the parties and their witnesses, together with other supporting evidence and the resolution
on the case (Sec. 7(a), Rule 112, supra.).

2. The record of the preliminary investigation conducted by a prosecutor shall not form part
of the record of the case (Sec. 7 (b), Rule 112, supra. ).

P. ACTION ON A MOTION FOR RECONSIDERATION

A motion for reconsideration filed within fifteen (15) days from receipt of the resolution
shall be acted upon within thirty (30) days from receipt of the motion by the assigned prosecutor.
The motion must be verified and accompanied by the proof of service to the opposing party. It
must state clearly and distinctly the grounds relied upon in support of the motion.

Where the Information has already been filed in court, the Chief State/Provincial/City
Prosecutor may not give due course to the motion for reconsideration until there is a showing that
the Movant has filed a motion with the court for the suspension of the proceedings, and the court
has granted such motion to suspend proceedings.

The Office of the Chief State/Provincial/City Prosecutor shall resolve the motion for
reconsideration within the period fixed by the court.

Once the motion for reconsideration has been resolved, a motion should be filed in court
by the Chief State/Provincial/City Prosecutor or his/her authorized assistant, attaching thereto
the resolution on the motion for reconsideration, informing the court of the action taken thereon
and asking it either to proceed with the case, or withdraw the Information or cause such other
measures to be done as may be warranted.

Q. ACTION ON A REINVESTIGATION

Before the filing of an information in court, a motion for reinvestigation of the case may
be filed with the Chief State/Regional State/City/Provincial Prosecutor, provided that when the
case has been appealed to the Secretary of Justice or the Regional State Prosecutor, such motion
may be filed with the said offices.

After the trial court has acquired jurisdiction over the case, any motion for reinvestigation
shall be addressed to the court and not to the public prosecutor or Secretary of Justice. It is the
trial judge who has sole authority to grant or deny the motion for reinvestigation (Crespo v.
Mogul, 151 SCRA 469; Velasquez v. Tuquero, 182 SCRA 388).

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A reinvestigation is proper only if the accuseds substantial rights would be impaired
(Antiporda, Jr. v. Garchitorena, 321 SCRA 551).

1. Instances Where a Reinvestigation May be Conducted

Based on newly discovered evidence, reinvestigation may be conducted in the following


instances:

a. Pursuant to a Court Order for Cases Already Filed in Court

Where the court orders the reinvestigation of a case, it cannot at the same time
choose the prosecutor who will conduct the reinvestigation (Abugol v. Tiro, etc., et.al., L-
40552, August 30, 1975). The head of office shall have discretion to assign the
reinvestigation of the case to a specific prosecutor, and not the judge issuing the court
order.

The reinvestigation prosecutor shall conduct the proceedings within the period
prescribed in the court order. The review and approval of the resolution after
reinvestigation shall also be done within the period prescribed in the order. After
promulgation of the resolution, the office concerned shall immediately take appropriate
action to either amend or withdraw the Information or proceed with the trial, as the case
may be.

b. Pursuant to an Order or Directive from the Regional State Prosecutor or the


Secretary of Justice

The Regional State Prosecutor or Secretary of Justice may order the reinvestigation
of a case upon motion filed by the interested party or upon appeal or petition for review of
the resolution of the Chief State/City/Provincial Prosecutor.

The head of office shall assign the reinvestigation of the case to a prosecutor, who
shall assist the Movant in filing a motion to suspend proceedings in court upon receipt of
the order/directive for reinvestigation. Thereafter, he/she shall immediately conduct and
resolve the case within the period prescribed in the order.

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III. RELEVANT JURISPRUDENCE

1. The prosecutor is not bound by the qualification of the crime but the evidence presented
during the preliminary investigation (Orquinaza v. People, G.R. No. 165596, November
17, 2005).

2. If, after preliminary investigation, a case is filed in the Court of First Instance (now the
Regional Trial Court), the prosecutor cannot file another Information charging a different
offense based on the same preliminary investigation. He must conduct another
preliminary investigation (Luciano v. Mariano,et.al. 40 SCRA 187).

3. A new preliminary investigation is not, however, necessary after the amendment of the
Information, where there has been no change in the nature of the crime charged which is
rebellion, and moreover, petitioner, who was already in custody when the amended
Information was filed, should have asked, but did not, for a re-investigation of said case
within the period of five (5) days from the time he learned of the amended Information
(Lava v. Gonzales, 11 SCRA 650 [1964]).

4. A new preliminary investigation is not called for when the court order the filing of the
correct Information involving a cognate offense, such as unfair competition to
infringement of trademarks (Sy Lim v. CA, 113 SCRA 334).

5. Where only a formal amendment was involved such as frustrated murder to


consummated murder where the death of the victim supervened, a preliminary
investigation is unnecessary and cannot be demanded by the accused (Teehankee, Jr. v.
Madayag, 207 SCRA 134).

6. It is a fundamental principle that when on its face, the Information is null and void for
lack of authority to file the same, it cannot be cured nor resurrected by an amendment.
Another preliminary investigation must be undertaken and thereafter, based on the
evidence adduced, a new Information should be filed (Cruz, Sr., v. Sandiganbayan, 194
SCRA 474).

7. Substantial adherence to the requirements of the law governing the conduct of


preliminary investigations, including substantial compliance with the time limitation
prescribed by the law for the resolution of the case by the prosecutor, is part of the
procedural due process constitutionally guaranteed by the fundamental law. A delay to
close to three (3) years cannot be deemed reasonable or justifiable in the light of the
circumstance obtaining in the case (Tatad v. Sandiganbayan, 159 SCRA 70).

8. The principle is not, however, applicable where the delay in the termination of the
preliminary investigation cannot be imputed solely to the prosecution but because of
incidents which are attributable to the accused and his counsel (Gonzales v.
Sandiganbayan, 199 SCRA 298; Defensor-Santiago v. Garchitorena, 228 SCRA 214).

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9. In Dee vs. Court of Appeals (November 21, 1994, 56 SCAD 684, 238 SCRA 254), the
Supreme Court reiterated its pronouncement in Crespo vs. Mogul (151 SCRA 462), that
the Secretary of Justice, as far as practicable, should refrain from entertaining a petition
for review or appeal from the action of the prosecutor when the Complaint or Information
has been filed in court. The matter should be left entirely for the determination of the
Court.

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TEMPLATES & SAMPLE FORMS
USED IN THE CONDUCT OF THE
PRELIMINARY INVESTIGATIONS

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Revised Manual for Prosecutors
NPS Investigation Form No. 01, s. 2008

Republic of the Philippines


Department of Justice
National Prosecution Service
_____________________
_____________________

INVESTIGATION DATA FORM

To be accomplished bu the Office

DATE RECEIVED: NPS DOCKET NO.:___________


(stamped and initialed): ________________________ Assigned to: __________________
Time Received:_______________________________ Date Assigned:________________
Receiving Staff: ______________________________

To be accomplished by complainant/counsel/law enforcer


(Use back portion if space is not sufficient)

COMPLAINANT/S: Name, Sex, Age & RESPONDENT/S: Name, Sex, Age &
Address Address
____________________________ __________________________
____________________________ __________________________
____________________________ __________________________
____________________________ __________________________
____________________________

LAW/S VIOLATED: WITNESS/ES: Name & Address


____________________________ __________________________
____________________________ __________________________
____________________________ __________________________
____________________________ __________________________
__________________________

DATE & TIME OF COMMISSION: PLACE of COMMISSION:


____________________________ __________________________
____________________________ __________________________
____________________________ __________________________
____________________________ __________________________
____________________________ __________________________

1. Has a similar complaint been filed before any other office? *YES___ NO___
2. Is this complaint in the nature of a counter-charge?* YES___ NO___
If yes, indicate details below.
3. Is this complaint related to another case before this office?* YES___ NO___
If yes, indicate details below
I.S NO.:___________________________
Handling Prosecutor:__________________

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Revised Manual for Prosecutors
C E R T I F I C A T I O N*

I CERTIFY, under oath, that all the information on this sheet are true and correct to the best of my
knowledge and belief, that I have not commenced any action or filed any claim involving the same issues in
any court, tribunal, or quasi-judicial agency, and that if I should thereafter learn that a similar action has
been filed and/or is pending, is shall report that fact to this Honorable Office within five (5) days from
knowledge thereof.

__________________________
(Signature over printed name)

SUBSCRIBED AND SWORN TO before me this _____day of ________________, 20___, in


______________________.

_________________________
Prosecutor Administering Oath

*1, 2, 3 and Certification need not be accomplished for inquest cases

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Revised Manual for Prosecutors
NPS Investigation Form No. 02, s. 2008

Republic of the Philippines


Department of Justice
NATIONAL PROSECUTION SERVICE
___________________________
___________________________

________________________,
Complainant,
I.S. No.___________________
- versus - For:_____________________

________________________,
Respondent.
x--------------------------------------------------------------------------------------------------------------------------x

RESOLUTION

this refers to the above-entitled complaint for _______ filed by ____________against


respondent________________.

Section 3(b), Rule 112 of the Revised Rules on Criminal Procedure, provides that the
investigating officer shall either dismiss the complaint if he finds no ground to continue with the
investigation or issue a subpoena to the respondent.

In this connection, we are constrained to dismiss the compliant for the following
reason(s):

[the investigating prosecutor may choose any of the reasons for dismissing the
complaint]

(__) the offense charged in the complaint was committed outside the territorial
jurisdiction of this Office; (Brief explanation)

(__) at the time of the filing of the complaint, the offense charged therein had already
prescribed; (Brief explanation)

(__) the complainant is not authorized under the provisions of pertinent laws to file the
complaint; (Brief explanation)

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WHEREFORE, the undersigned investigating prosecutor respectfully recommends that the above-
entitled complaint be DISMISSED.

_______________(place),________________(date)

___________________________
INVESTIGATING PROSECUTOR

A P P R O V E D:

_______________________
(Head of Office)

Copy Furnished:

All Parties and/or their counsel


Address

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Revised Manual for Prosecutors
NPS INV Form No. 03, s. 2008
Republic of the Philippines
Department of Justice
NATIONAL PROSECUTION SERVICE
___________________________
___________________________

________________________,
Complainant,
I.S. No.___________________
- versus - For:_____________________

________________________,
Respondent.
x---------------------------------------------x

SUBPOENA TO COMPLAINANT
(optional but not necessary)

TO: ________________________
________________________
________________________

GREETINGS:

Under and by virtue of the authority vested in me by law, you are hereby required to appear before
me at ____________________________________________, on __________________,
200_ at ___a.m./p.m. in the preliminary investigation of the above-entitled complaint to be held at the
time and place-above-specified.

WITNESS MY HAND this ___day of ____________, 200__ at _______________,


Philippines.

___________________________
INVESTIGATING PROSECUTOR

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Revised Manual for Prosecutors
NPS INV Form No. 04, 2. 2008

Republic of the Philippines


Department of Justice
NATIONAL PROSECUTION SERVICE
___________________________
___________________________

________________________,
Complainant,
I.S. No.___________________
- versus - For:_____________________

________________________,
Respondent.
x---------------------------------------------x

SUBPOENA TO RESPONDENT/S

TO: ________________________
________________________
________________________

GREETINGS:

Under and by virtue of the authority vested in me by law, you are hereby directed to submit your
counter-affidavit and other supporting documents or affidavits of your witness/es, if any, to be sworn to
before me on ___________________, 200__ at ____a.m./p.m. Attached is a copy of the complaint
and other evidence submitted by the complainant.

you are hereby WARNED that failure on your part to comply with the subpoena shall be considered
as a waiver of your right to present your defense and the case shall be considered submitted for resolution
based on the evidence on record.

WITNESS MY HAND this ____ day of ______________200__ at ______________,


Philippines.

___________________________
INVESTIGATING PROSECUTOR

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Revised Manual for Prosecutors
NPS INV Form No. 05, s. 2008

Republic of the Philippines


Department of Justice
NATIONAL PROSECUTION SERVICE
___________________________
___________________________

________________________,
Complainant,
I.S. No.___________________
- versus - For:_____________________

________________________,
Respondent.
x---------------------------------------------x

SUBPOENA TO RESPONDENT
(to obtain copies of the complaint and other supporting evidence)

TO: ________________________
________________________
________________________

GREETINGS:

In connection with the above-entitled complaint, and by virtue of the authority vested in me by law,
you are hereby directed to obtain, personally or through your representative, copies of the complaint,
supporting affidavits and other evidence submitted by the complainant
at_________________________________, on _________________, 200__ at.
___a.m./p.m. You or your representative are/is likewise entitled to examine all other evidence submitted
by complainant on the date and time herein specified.

You are hereby WARNED that failure on your part to comply with the subpoena shall be considered
as a waiver of you right to be furnished copies of the complaint, supporting affidavits and other documents,
as well as to examine all other evidence submitted by the complainant.

WITNESS MY HAND this ____ day of ______________200__ at ______________, Philippines.

___________________________
INVESTIGATING PROSECUTOR

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Revised Manual for Prosecutors
NPS INV Form No. 06, s. 2008

Republic of the Philippines


Department of Justice
NATIONAL PROSECUTION SERVICE
___________________________
___________________________

________________________,
Complainant,
I.S. No.___________________
- versus - For:_____________________

________________________,
Respondent.
x---------------------------------------------x

ORDER

Considering the difficult and/or complicated questions of fact and of law involved in the instant
case, the parties are hereby required to simultaneously submit their respective memoranda within ten
(10) days from receipt hereof. After the lapse of the said period, this case shall be deemed submitted for
resolution.

SO ORDERED

___________, Date.

___________________________
INVESTIGATING PROSECUTOR

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Revised Manual for Prosecutors
NPS INV Form No. 07, s. 2008

Republic of the Philippines


Department of Justice
NATIONAL PROSECUTION SERVICE
___________________________
___________________________

________________________,
Complainant,
I.S. No.___________________
- versus - For:_____________________

________________________,
Respondent.
x---------------------------------------------x
SUBPOENA FOR CLARIFICTORY HEARING

TO: (Complainant/s and Counsel)


_____________________
_____________________

TO: (Respondent/s and Counsel)


_____________________
_____________________

TO: (Witness)
_____________________
_____________________

GREETINGS:

Pursuant to Sec. 3(e), Rule 112 of the Revised Rules on Criminal Procedure, and by virtue of the
authority vested in me by law, you are hereby required to appear before me at ___________________
________________, on __________________, 200__ at ___a.m./p.m., for the conduct of
clarificatory questioning where only the undersigned can ask questions. You are hereby informed of your
right to be represented by counsel in the said hearing. If you so desire, you may submit written questions
to the undersigned that may be asked of the party/ies and/or witness/es.

WITNESS MY HAND this ___ day of _________________, 200__ at ______________,


Philippines.

________________________
INVESTIGATING PROSECUTOR

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Revised Manual for Prosecutors
NPS INV Form No. 08, s. 2008
Republic of the Philippines
Department of Justice
NATIONAL PROSECUTION SERVICE
___________________________
___________________________

________________________,
Complainant,
I.S. No.___________________
- versus - For:_____________________

________________________,
Respondent.
x---------------------------------------------x

________________________,
Complainant,
I.S. No.___________________
- versus - For:_____________________

________________________,
Respondent.
x---------------------------------------------x

ORDER OF CONSOLIDATION

It appearing that the above-entitled complaints

(___) are charges and counter-charges;

(___) arose from one and the same incident or transaction or series of incidents or transactions;

(___) involve common parties and are founded on factual and/or legal issues of the same or
similar character,

the same are hereby ordered consolidated and the joint preliminary investigation thereof shall be handled
by Asst. City Prosecutor/Asst. Provincial/State Prosecutor ____________________ to whom the
complaint with the lowest docket number has been raffled/assigned or at the discretion of the head of office.
He/she shall terminate the proceedings within prescribed period of sixty (60) days from receipt of the
assignment.

SO ORDERED
________(Place)___________, _______, Date__________.

___________________________________
CITY/PROVINCIAL/CHIEF STATE PROSECUTOR

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Revised Manual for Prosecutors
NPS INV Form No. 09, s. 2008

_______________
(Date)

REGIONAL ORDER NO. ____

RE : DESIGNATION OF PERSONNEL

In the interest of the service, and pursuant to existing laws, rules and regulations, and by reason of
the inhibition of the Office of the ________________________, which is hereby approved, ASST. CITY
PROSECUTOR/ASST. PROVINCIAL / STATE PROSECUTOR ________________________ of the
Office of the City/Provincial Prosecutor____________________________ is hereby designated as
Acting City/Provincial Prosecutor of ____________________ to conduct the preliminary investigation
in I.S. No. __________________, entitled ______________________________, for
________________, and, if warranted by the evidence, to file the corresponding Information/s in court.

This Order shall take effect immediately and shall remain in full force until revoked or superseded.

__________________________
REGIONAL STATE PROSECUTOR

Copy furnished:

All concerned.

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Revised Manual for Prosecutors
Sample Resolution

Republic of the Philippines


Department of Justice
NATIONAL PROSECUTION SERVICE
___________________________
___________________________

________________________,
Complainant,
I.S. No.___________________
- versus - For:_____________________

________________________,
Respondent.
x---------------------------------------------x

RESOLUTION

This resolves the above-entitled complaint for violation of Sec. 19(b), paragraphs (1) and
(2), of RA 8239, otherwise known as the Philippine Passport Act of 1996, filed by the
Department of Foreign Affairs against ________________ a.k.a____________________.

Record shows that on April 4, 2007, respondent _______ went to the Inter-Agency
Committee Against Passport Irregularities (ICPI) Secretariat and voluntarily surrendered
Passport Nos. MM860451 and HH160901, both issued in Manila and in the name of a.k.a on 19
April 2004 and 07 May 2001, respectively. The photograph attached to both passports indubitably
belongs to respondent_________. In her affidavit of explanation submitted to the DFA,
respondent admitted having bought the birth certificate of one a.k.a somewhere in Libertad,
Pasay City for P8,000.00, sometime in 2001. She, then, went to the DFA to apply for a passport
using the said birth certificate, pursuant to which she was issued a passport in the name of a.k.a..
She did so in order for her to be able to again work in Taiwan after her employment contract in
the said country had expired in 1999. Using the said passport, she got employed in Taiwan in 2001
and finished the said contract in 2004. She was hired by another company in Taiwan in 2004,
which contract she finished in March this year. Meanwhile, she met a Taiwanese boyfriend who
knew about her change of name. As they decided to get married, they applied for legal capacity
from the Taipei Economic and Cultural Office (TECO). In the course thereof, she was asked to get
a clearance from the DFA regarding her change of name.

Complainant, thus, accuses respondent for assumption of identity and use of passports
issued under an assumed name, under Sec. 19(b), pars. 1 & 2, of RA 8239. He claims that
respondent personally applied for Passport Nos. HH160901 and MM860451 under the name
a.k.a., which passport issuances were confirmed by the DFA computer database. She also used
the said passports in going to and from Taiwan as a contract worker. The Departments computer

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Revised Manual for Prosecutors
database also revealed the following issuances in the name of _____________, born on
December 2, 1972 in Cebu City, to wit:

Passport No. : BB846749


Date & Place of Issue : 25 January 1997/Manila

Passport No. : VV0166339


Date & Place of Issue: 30 April 2007/Manila

To substantiate his claim, complainant submitted the application record of Passport Nos.
MM860451 and VV0166339, as well as the photopage and pertinent pages of Passport Nos.
HH160901 and MM860451 showing the visas and the Bureau of Immigration departure and
arrival stamps.

Finally, complainant claims that based on the application records of Passport Nos.
MM860451 and VV0166339, it clearly appears that the photographs of a.k.a and ___________
belong to one and the same person. Hence, this complaint.

In exculpation, respondent argues that she could not be held liable under Sec. 19(b) of RA
8239 as she did not make any falsity in the procurement of Passport Nos. MM860451 and
HH160901. The fact that her photograph appears on both passports does not mean that she
authored any kind of falsity, the truth being that she merely paid an old woman fixer the amount
of P8,000.00, who also assured her that she would be able to leave for and work in Taiwan for the
second time. The said old woman fixer who was only known to her as Manay might have
confederated with some DFA employees since after only five (5) days, she gave her the passport
bearing the name a.k.a

She was compelled to use the subject passports in going to Taiwan out of sheer necessity
as she was rendered jobless after her employment contract in Taiwan had expired. Returning to
work as a factory worker in Taiwan was the only means for her to improve her familys living
conditions, she being the sole breadwinner. Then, she met a Taiwanese boyfriend who expressed
interest to marry her. Together, they went to the TECO to secure legal capacity to marry,
whereupon she was told to clear with the DFA, she voluntarily surrendered the subject passports
and prepared a written explanation on how they were issued, as advised by complainant. She
did so in all honesty and good faith, hoping that it would solve her problem. She never expected
that her having sought the help of the DFA would result in her being charged criminally.

Finally, she denies any criminal intent, imploring the kind understanding of authorities,
as she had been merely forced by circumstances beyond her control, like the lack of job
opportunities in the country. She argues that even the Supreme Court in the case of People versus
Librero, GR No. 132311, September 28, 2000, recognizes the difficult times we are in and realizes
that hopes for a better future for many Filipinos lie in overseas employment.

We now resolve.

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Attached to the record are copies of the application of Passport No. MM860451 in the
name of a.k.a and Passport No. VV0166339 in the name of respondent _________, both bearing
photographs belonging to one and the same person. It is not disputed that the photograph
attached to both passport applications belongs to respondent. By attaching her photograph to the
passport application, thereby making it appear that she a.k.a the person named in Passport No.
MM860451, respondent has assumed the identity of a.k.a in the said passport application, in
violation of Sec. 19(b)(1) of RA 8239.

Sec. 19(b)(1) of RA 8239 penalizes any person who willfully and knowingly makes any
false statement in any application for passport with the intent to induce or secure the issuance of
a passport under the authority of the Philippine Government, either for his own use or the use of
another x x x. Given the above factual backdrop, there is no gainsaying that respondent has
committed a false statement or misrepresentation in the application for Passport No. MM860451
when she stated therein that she is a.k.a, born in Marikina on February 21, 1978 when, in truth
and in fact, she is not.

Respondents claim of good faith and lack of criminal intent is unavailing in the instant
case. Firstly, RA 8239 is a special law which does not require criminal intent; the offense being
malum prohibitum and the mere commission of the prohibited act is punishable. Moreover,
being malum prohibitum, good faith is not a valid defense. Secondly, evidence adduced shows
that Passport No. MM860451 is a renewal of Passport No. HH160901. Thus, it appears that
respondent has assumed the identity of a.k.a not only one but twice, in 2001 and 2004, which is
anathema to any claim of good faith and/or lack of criminal intent. Thirdly, record shows that the
respective applications for Passport Nos. HH160901 and MM860451 were personally filed by
respondent applicant. Necessarily, respondent who posed to be a.k.a personally appeared and
processed the subject passport applications. She, has, therefore, knowingly participated in the
commission of the prohibited act, respondent is still criminally liable for her own acts. In fact, she
knowingly acceded to the scheme allegedly proposed by a fixer named Manay, even paying the
latte a sizeable amount.

However, considering that the application record of Passport No. HH160901 had already
been disposed of, respondent could no longer be prosecuted for assumption of identity in relation
to the said passport for lack of documentary evidence to prove the violation. As regards Passport
No. MM860451 which is amply supported by the passport application record, probable cause
exists against respondent for violation of Sec. 19(b)(1) of RA 8239.

Evidence adduced likewise sufficiently shows that after securing Passport No. MM860451
in violation of Sec. 19(b)(1) of RA 8239, respondent used the said passport on three (3) separate
instances, to wit: (1) on October 7, 2004 when she applied for a visa to Taipei at the TECO; (2) on
October 13, 2004 when she left the Philippines for Taipei; and (3) on March 27, 2007 when she
arrived in and entered the Philippines from Taipei. All these acts fall under the second paragraph
of Sec. 19(b), RA 8239, which penalizes any use or attempt to use a passport that has been secured
and issued by means of any false statement. Again, inasmuch as RA 8239 is malum prohibitum,

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the offender is criminally liable for every single violation of the law. In this case, respondent is
liable for three (3) counts of violation of Sec. 19(b)(2) of RA 8239.

While we agree that Filipino migrant workers have greatly contributed to our economy,
that a better future for Filipinos lie in overseas employment, we cannot bargain away faithful
observance of our laws and legal processes in the name of economic prosperity. Trite as it may
sound, ours is a government of laws and not of men. For government stability and good
governance, our laws must be fully enforced, especially those relating to the issuance and use of
Philippine passports which carry the seal of our Republic and embody a request for other
governments to allow the bearer to pass safely and freely. In that sense, a Philippine passport is
not only a public document but a representation of our government. To protect its integrity,
tinkering with the said document must be dealt with severely.

WHEREFORE, premises considered, undersigned respectfully recommends that upon


approval of this resolution, the attached informations for violation of Sec. 19(b) of RA 8239, one
(1) count under paragraph 1 and three (3) counts under paragraph 2, be filed against respondent
_______________.

City of Manila, December 7, 2007.

______________________
Investigating Prosecutor

RECOMMENDING APPROVAL
_______________________

APPROVED:
_______________________

Copy Furnished:

DIRECTOR_____________
Passport Division
DEPARTMENT OF FOREIGN AFFAIRS
Roxas Blvd., Pasay City

________________________
Secretariat, Inter-Agency Committee
Against Passport Irregularities (ICPI)
DEPARTMENT OF FOREIGN AFFAIRS
Roxas Blvd., Pasay City

________________________
Respondent
(Address)

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Revised Manual for Prosecutors
Sample Information 1

Republic of the Philippines


REGIONAL TRIAL COURT
National Capital Judicial Region
Branch ____, Pasay City

People of the Philippines,


Plaintiff,
CRIM. CASE NO. _________
(I.S. No. __________________)
For: Violation of Sec. 19(b)(1)
-versus - of RA 8239

____________________
_____a.k.a_____________,
-At-Large-
(c/o address),
Accused.
x----------------------------------------x

INFORMATION

The undersigned State/Assitant Provincial/Assistant City Prosecutor, hereby accuses


_______________ a.k.a _______________ with violation of Sec. 19(b), paragraph 1, of RA 8239,
otherwise known as The Philippine Passport Act of 1996, committed as follows:

That on April 19, 2004 or thereabout, at the Department of Foreign Affairs,


Roxas Blvd., Pasay City, Metro Manila, and within the jurisdiction of this Honorable
Court, the above- named accused did then and there knowingly, unlawfully and
criminally make a false statement in the application for Passport No. MM860451, by
stating therein that she is a.k.a, born on February 21, 1978 in Marikina, and attaching
her own photograph to the said passport application, thereby assuming the identity
of the said a.k.a, with the intent to induce or secure the issuance of a passport under
the authority of the Philippine Government, as she has in fact secured the issuance of
Passport No. MM860451 for her own use and benefit, in violation of RA 239 as well
as the rules and regulations prescribed in relation thereto.

CONTRARY TO LAW.

City of Manila for Pasay City, December 7, 2007,

__________________________
Investigating Prosecutor

Continued, next page >


CERTIFICATION

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Revised Manual for Prosecutors
I HEREBY CERTIFY that I have conducted a preliminary investigation in this case in accordance
with law; that the complainant was personally examined and that on the basis of the sworn statements and
other evidence presented, there is reasonable ground to believe that the crime charged has been committed
and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the
evidence presented against her and was given the opportunity to submit controverting evidence. I further
certify that the filing of this Information is with the prior authority and approval of the Chief
State/Provincial/City Prosecutor.

City of Manila, Philippines, December 7, 2007.

__________________________
Investigating Prosecutor

SUBSCRIBE AND SWORN to before me on this ___day of ___________ in the City of Manila,
Philippines.

WITNESSES:

1._________________
c/o Secretariat, Inter-Agency Committee
Against Passport Irregularities
Department of Foreign Affairs
Roxas Blvd., Pasay City

2. THE RECORDS CUSTODIAN


(or his duly authorized representative)
Consular Records Division
Department of Foreign Affairs
Roxas Blvd., Pasay City
(to bring application records and supporting documents of Passport No. MM860451 in the
Name of a.k.a and Passport No. VV0166339 in the name of _______________)

3. AND OTHERS

BAIL RECOMMENDED: THIRTY THOUSAND (P30,000.00) PESOS

Enclosures:

Approved Resolution dated December 7, 2007


Complaint-Affidavit of ___________with attachments
Counter-affidavit of ____________ dated September 11, 2007

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Revised Manual for Prosecutors
Sample Information 2

Republic of the Philippines


REGIONAL TRIAL COURT
National Capital Judicial Region
Branch ____, Pasay City

People of the Philippines,


Plaintiff,
CRIM. CASE NO. _________
(I.S. No. __________________)
For: Violation of Sec. 19(b)(1)
-versus - of RA 8239

____________________
_____a.k.a_____________,
-At-Large-
(c/o address),
Accused.
x----------------------------------------x

INFORMATION

The undersigned State/Assistant Provincial/Assistant City Prosecutor, hereby accuses


____________a.k.a with violation of Sec. 19 (b), paragraph 2, of RA 8239, otherwise known as The
Philippine Passport Act of 1996, committed as follows:

That on October 13, 2004 or thereabout, in Pasay City, Metro Manila, and
within the jurisdiction of this Honorable Court, the above-named accused did then and
there knowingly, unlawfully and criminally use or attempt to use, in her departure to
Taipei, Passport No. MM860451 in the name of a.k.a, born on February 21, 1978 in
Marikina, which passport was secured by the said accused by means of false statements in
the application for passport, in violation of RA 8239 as well as the rules and regulations
prescribed in relation thereto.

CONTRARY TO LAW.

City of Manila for Pasay City, December 7, 2007,

__________________________
Investigating Prosecutor

Continued, next page >

125
Revised Manual for Prosecutors
CERTIFICATION

I HEREBY CERTIFY that I have conducted a preliminary investigation in this case in accordance
with law; that the complainant was personally examined and that on the basis of the sworn statements and
other evidence presented, there is reasonable ground to believe that the crime charged has been committed
and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the
evidence presented against her and was given the opportunity to submit controverting evidence. I further
certify that the filing of this Information is with the prior authority and approval of the Chief
State/Provincial/City Prosecutor.

City of Manila, Philippines, December 7, 2007.

__________________________
Investigating Prosecutor

SUBSCRIBE AND SWORN to before me on this ___day of ___________ in the City of Manila,
Philippines.

WITNESSES:

1._________________
c/o Secretariat, Inter-Agency Committee
Against Passport Irregularities
Department of Foreign Affairs
Roxas Blvd., Pasay City

2. THE RECORDS CUSTODIAN


(or his duly authorized representative)
Consular Records Division
Department of Foreign Affairs
Roxas Blvd., Pasay City
(to bring application records and supporting documents of Passport No. MM860451 in the
Name of a.k.a and Passport No. VV0166339 in the name of _______________)

3. AND OTHERS

BAIL RECOMMENDED: THIRTY THOUSAND (P30,000.00) PESOS

Enclosures:

Approved Resolution dated December 7, 2007


Complaint-Affidavit of ___________with attachments
Counter-affidavit of ____________ dated September 11, 2007

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Revised Manual for Prosecutors
Sample Information 3

Republic of the Philippines


REGIONAL TRIAL COURT
National Capital Judicial Region
Branch ____, Pasay City

People of the Philippines,


Plaintiff,
CRIM. CASE NO. _________
(I.S. No. __________________)
For: Violation of Sec. 19(b)(1)
-versus - of RA 8239

____________________
_____a.k.a_____________,
-At-Large-
(c/o address),
Accused.
x----------------------------------------x

INFORMATION

The undersigned State/Assistant Provincial/Assistant City Prosecutor, hereby


accuses_________________________ a.k.a ____________ with violation of Sec. 19(b), paragraph
2, of RA 8239, otherwise known as The Philippine Passport Act of 1996, committed as follows:

That on March 27, 2007 or thereabout, in Pasay City, Metro Manila, and within the
jurisdiction of this Honorable Court, the above-named accused did then and there
knowingly, unlawfully and criminally use or attempt to use, in her arrival in, and entry
to, the Philippines from Taipei, Passport No. MM860451 in the name of a.k.a , born on
February 21, 1978 in Marikina, which passport was secured by the said accused by means
of false statements in the application for passport, in violation of RA 8239 as well as the
rules and regulations prescribed in relation thereto.

CONTRARY TO LAW.

City of Manila for Pasay City, December 7, 2007,

__________________________
Investigating Prosecutor

Continued, next page >

127
Revised Manual for Prosecutors
CERTIFICATION

I HEREBY CERTIFY that I have conducted a preliminary investigation in this case in accordance
with law; that the complainant was personally examined and that on the basis of the sworn statements and
other evidence presented, there is reasonable ground to believe that the crime charged has been committed
and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the
evidence presented against her and was given the opportunity to submit controverting evidence. I further
certify that the filing of this Information is with the prior authority and approval of the Chief
State/Provincial/City Prosecutor.

City of Manila, Philippines, December 7, 2007.

__________________________
Investigating Prosecutor

SUBSCRIBE AND SWORN to before me on this ___day of ___________ in the City of Manila,
Philippines.

WITNESSES:

1._________________
c/o Secretariat, Inter-Agency Committee
Against Passport Irregularities
Department of Foreign Affairs
Roxas Blvd., Pasay City

2. THE RECORDS CUSTODIAN


(or his duly authorized representative)
Consular Records Division
Department of Foreign Affairs
Roxas Blvd., Pasay City
(to bring application records and supporting documents of Passport No. MM860451 in the
Name of a.k.a and Passport No. VV0166339 in the name of _______________)

3. AND OTHERS

BAIL RECOMMENDED: THIRTY THOUSAND (P30,000.00) PESOS

Enclosures:

Approved Resolution dated December 7, 2007


Complaint-Affidavit of ___________with attachments
Counter-affidavit of ____________ dated September 11, 2007

128
Revised Manual for Prosecutors
Sample Information 4

Republic of the Philippines


REGIONAL TRIAL COURT
National Capital Judicial Region
Branch ____, Pasay City

People of the Philippines,


Plaintiff,
CRIM. CASE NO. _________
(I.S. No. __________________)
For: Violation of Sec. 19(b)(1)
-versus - of RA 8239

____________________
_____a.k.a_____________,
-At-Large-
(c/o address),
Accused.
x----------------------------------------x

INFORMATION

The undersigned State/Assistant Provincial/Assistant City Prosecutor, hereby


accuses_________________________ a.k.a ____________ with violation of Sec. 19(b), paragraph
2, of RA 8239, otherwise known as The Philippine Passport Act of 1996, committed as follows:

That on October 7, 2004, or thereabout, in Makati City, Metro Manila, and within
the jurisdiction of this Honorable Court, the above-named accused did then and there
knowingly, unlawfully and criminally use or attempt to use Passport No. MM860451 in
the name of a.k.a, born on February 21, 1978 in Marikina, in her application for visa to
Taipei, which Passport No. MM860451 was secured by the said accused by means of
false statements in the application for passport, in violation of RA 8239 as well as the
rules and regulations prescribed in relation thereto.

CONTRARY TO LAW.

City of Manila for Pasay City, December 7, 2007,

__________________________
Investigating Prosecutor

Continued, next page >

129
Revised Manual for Prosecutors
CERTIFICATION

I HEREBY CERTIFY that I have conducted a preliminary investigation in this case in accordance
with law; that the complainant was personally examined and that on the basis of the sworn statements and
other evidence presented, there is reasonable ground to believe that the crime charged has been committed
and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the
evidence presented against her and was given the opportunity to submit controverting evidence. I further
certify that the filing of this Information is with the prior authority and approval of the Chief
State/Provincial/City Prosecutor.

City of Manila, Philippines, December 7, 2007.

__________________________
Investigating Prosecutor

SUBSCRIBE AND SWORN to before me on this ___day of ___________ in the City of Manila,
Philippines.

WITNESSES:

1._________________
c/o Secretariat, Inter-Agency Committee
Against Passport Irregularities
Department of Foreign Affairs
Roxas Blvd., Pasay City

2. THE RECORDS CUSTODIAN


(or his duly authorized representative)
Consular Records Division
Department of Foreign Affairs
Roxas Blvd., Pasay City
(to bring application records and supporting documents of Passport No. MM860451 in the
Name of a.k.a and Passport No. VV0166339 in the name of _______________)

3. AND OTHERS

BAIL RECOMMENDED: THIRTY THOUSAND (P30,000.00) PESOS

Enclosures:

Approved Resolution dated December 7, 2007


Complaint-Affidavit of ___________with attachments
Counter-affidavit of ____________ dated September 11, 2007

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Revised Manual for Prosecutors
NPS SAMPLE FORMAT A, S. 2008

Republic of the Philippines


Department of Justice
NATIONAL PROSECUTION SERVICE
___________________________
____________________________

_________________________,
Complainant,
I.S. No. __________________
- versus - For:_____________________

_________________________,
Respondent.
x---------------------------------------------x

ORDER

This treats of the motion to suspend proceedings filed by respondent based on the existence of a
prejudicial question.

In support of the instant motion, respondent claims

Complainant counters that ..

The issues having been joined, we now resolve.

(Brief discussion)

Considering the pendency of a civil case which involves facts intimately related to those upon which
the instant complaint for __________ is based, and that in the resolution of the issue or issues raised in
the civil case, the guilt or innocence of the accused would necessarily be determined, undersigned finds the
existence of a prejudicial question, thus, warranting the suspension of this preliminary investigation.

Accordingly, the preliminary investigation in the above-entitled case is hereby SUSPENDED.

SO ORDERED.

____________, Date.

Continued, next page >

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Revised Manual for Prosecutors
_______________________
Investigating Prosecutor

RECOMMENDING APPROVAL:

____________________________

APPROVED:

______________________________
CITY/PROVINCIAL/CHIEF STATE PROSECUTOR

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Revised Manual for Prosecutors
NPS SAMPLE FORMAT B, s. 2008

CERTIFICATION

I HEREBY CERTIFY that I have personally examined the affiant and I am fully convinced that
he/she voluntarily executed his affidavit/sworn-statement and understood the contents thereof.

_______________________________
Investigating Prosecutor

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Revised Manual for Prosecutors
FLOWCHART 1: PRELIMINARY INVESTIGATION

PRELIMINARY INVESTIGATION
(within 60 to 90 days)

W/ SUBPOEN RESPOND CLARIFICAT RESOLUTI


GROUND A ENT ORY
ON
RESPOND COUNTE QUESTIONI
NG

COMPLAI REPLY/REJOI
NT- NDER
AFFIDAVI
T

NO DISMISSA
GROUND L
RESOLUTI

134
Revised Manual for Prosecutors
FLOWCHART 2: PRELIMINARY INVESTIGATION

PRELIMINARY INVESTIGATION
(within 60 to 90 days)

FILING
INFO
IN OR
SP
YE
RECOMM S MR/APPEAL
ACTION
END /
BY PETITION
FILING OF
W/ FOR
N
PROBABLE OS
O
EC
RESOLUT DISMISS
ION AL OF
COMPLA
OR
W/O
YE SP
PROBABLE MR/APPEAL
CAUSE S
/
RECOM PETITION
ACTION
MEND FOR
BY
DISMISS
OS
N
EC
O FILING
INFO
IN

135
Revised Manual for Prosecutors
FLOWCHART 3: PRELIMINARY INVESTIGATION

PRELIMINARY INVESTIGATION
(within 60 to 90 days)

PURSUE
FILING BAI ARRAIGNMENT TRI
SUSTAI
OF INFO L AL
N
IN
FILING
INFO
IN
COURT
REVERS DISMISSA PETITION FOR CERTIORARI (COURT OF
MR/APPE E L OF APPEALS)
AL/
PETITION
FOR
YE DISMISSA PETITION FOR CERTIORARI (COURT OF
S L OF APPEALS)
DISMISSA
L OF
COMPLAI
NT PURSUE
NO FILING BAI TRI
ARRAIGNMENT
OF INFO L AL
IN

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Revised Manual for Prosecutors
PART V. ARRAIGNMENT AND PLEA

I. GENERAL RULES

A. PRINCIPLES

1. Arraignment, being a mandatory requirement, necessitates the presence of the accused in court
who should personally enter his plea after the reading of the Information in a language or dialect
understandable to him.

2. Before, during and after the arraignment, the trial prosecutor has well-defined duties to perform.

3. The filing of a petition for review affects the arraignment of the accused in court.

B. CONCEPTS

1. Arraignment is the formal mode and manner of implementing the constitutional right of the
accused to be informed of the nature and cause of the accusation against him (Sec. 12 [2], 1987
Constitution of the Philippines). An arraignment is necessary in order to fix the identity of the
accused, to inform him of the charge and to give him an opportunity to plead (14 Am. Jur., p. 939,
G.V. Jacinto, Criminal Procedure).

2. Plea is the reply of the accused to the charge. In criminal prosecution, the accused has to plead
to the indictment, which he may do (1) by pleading to the jurisdiction, that is, alleging that the court
has no jurisdiction to try him; (2) by a demurrer; or (3) by some plea in bar, either a general plea
or a specific plea (Osborns Concise Law Dictionary, 15 th Ed. John Burke, p. 254).

II. PROCEDURE

A. DUTIES OF THE TRIAL PROSECUTOR

1. Before the Arraignment of the Accused

The trial prosecutor shall examine the Information vis--vis the resolution of the
investigating prosecutor in order to make the necessary corrections or revisions and to ensure that
the Information is sufficient in form and substance.

He shall ensure that the private offended party appears at the arraignment for purposes of
plea bargaining, determination of civil liability and other matters requiring his presence (Sec. 1(f),
Rule 116, Revised Rules on Criminal procedure).

Republic Act No. 4908, which requires that in criminal cases where the complainant is
about to depart from the Philippines with no definite date of return, the accused should
be arraigned delay and his trial should commence within three (3) days from
arraignment and that no postponement of the initial hearing should be granted except
on the ground of illness on the part of the accused or other grounds beyond control of
the court.

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Revised Manual for Prosecutors
2. During the Arraignment

During the arraignment, the prosecutor seeks to give the accused the opportunity at the
first instance to know why a case has been filed against him. It is the solemn duty of the trial
prosecutor to be present during the arraignment so that he can ensure, among others, that the
requirements of a valid arraignment are duly observed, the identity of the accused is ascertained
and the Information being read to the accused is the same Information as filed.

3. After the Arraignment

The trial prosecutor shall prepare his witnesses for trial. Government witnesses, e.g.
medico-legal officers, chemists, forensic experts, examiners etc. should, as much as practicable, be
presented in accordance with the logical and chronological sequence of the technical aspects to be
proved.

B. EFFECT OF THE FILING OF A PETITION FOR REVIEW

When an aggrieved party manifests in court that he has a pending petition for review with the
Department of Justice and moves for a deferment/suspension of the arraignment pending resolution of his
petition, the trial prosecutor may conform thereto once proof of said petition has been presented by the
petitioner to his satisfaction.

C. APPLICABLE RULES IN CASES WHERE THE ACCUSED PLEADS GUILTY TO A LESSER


OFFENSE

1. The trial prosecutor shall immediately move for the suspension of the proceedings whenever the
accused manifests his intention in court to plead guilty to a lesser offense, when applicable. This
will enable the trial prosecutor to confer with the private complainant and evaluate the implications
of the offer of the plea bargain.

2. The trial prosecutor may dispense with the presentation of evidence when the accused pleads guilty
to a lesser offense which is not a capital offense unless the court directs him to do so for purposes
of determining the penalty to be imposed.

3. The trial prosecutor, with the consent of the offended party, may motu proprio agree to the offer of
the accused to plead guilty to a lesser offense if the penalty imposable therefor is prision
correccional (maximum of six [6] years) or less or a fine not exceeding Php12,000.00.

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4. When the penalty imposable for the offense charged is prision mayor (at least six [6] years and one
[1] day or higher) or a fine exceeding Php12,000.00, the trial prosecutor shall first submit his
comment/recommendation to the Provincial or City Prosecutor or to the Chief State Prosecutor, as
the case may be, for approval. If the recommendation is approved in writing, the trial prosecutor,
may with the consent of the offended party, agree to plea of guilty to a lesser offense. For this
purpose, the Chief State Prosecutor or the Provincial or City Prosecutor concerned shall act on the
recommendation of the trial prosecutor within forty-eight (48) hours from receipt thereof. In no
case shall the subject plea to a lesser offense be allowed without the written approval of the above
respective heads of office.

5. In all cases, the penalty for the lesser offense to which the accused may be allowed to plead guilty
shall not be more than two (2) degrees lower than the imposable penalty for the crime charged,
notwithstanding the presence of mitigating circumstances. The lesser offense shall also be one that
is necessarily related to the offense charged or the offense must belong to the same classification
or title under the Revised Penal Code or the relevant special laws (DOJ Circular No. 55, dated 31
July 1990).

D. WHEN A PLEA OF GUILTY TO A LESSER OFFENSE IS NOT ALLOWED

However, the plea of guilty to a lesser offense may not be allowed where it so contravenes logic and
common sense as to be unconscionable, thereby resulting in injustice. Thus, where the offense charged is
homicide, a plea of guilty to a lesser offense of frustrated or attempted homicide may not be allowed, since
the fact of death cannot be reconciled with the plea of guilty to frustrated or attempted homicide. Homicide
necessarily produces death, while frustrated or attempted homicide does not (Amatan v. Aujero, 248 SCRA
511 [1995]).

E. WHEN ACCUSED PLEADS GUILTY TO A CAPITAL OFFENSE

When the accused pleads guilty to a capital offense, the trial prosecutor must present evidence to
prove the guilt of the accused and the precise degree of his culpability, notwithstanding the waiver made by
the accused during the pre-trial conference. This is mandatory.

III. RELEVANT JURISPRUDENCE

1. In criminal cases, it is the study of the accused, in addition to the other pleas authorized by law, to
plead whether he is guilty or not of the crime charged. In that way, and in that way only, can an
issue be created upon which the trial shall proceed (Golez vs. C.A. 237 SCRA 685).

2. The period of suspension shall not exceed sixty (60) days counted from the filing of the petition
with the reviewing office. (Sec. 11, par.(c), Rule 116, Rev. Rules on criminal procedure). However,
the court may still suspend the trial pending final resolution by the DOJ (lumanlaw v. Judge
Eduardo Peralta, Jr., G.R. No. 164953, February 13, 2006).

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PART VI. PRE-TRIAL

I. CONCEPT

A pre-trial is a process whereby the accused and the prosecutors in a criminal case work out, usually
at the arraignment stage, a naturally satisfactory disposition of a case subject to court approval in order to
expedite the trial of the case (Blacks Law Dictionary, 5th Ed., 1979, p. 1037).

The conduct of a pre-trial conference is mandatory in all criminal cases (Sec. 1, par. 1, Rule 118,
Revised Rules on Criminal Procedure; SC Circular No. 38-98).

The pre-trial conference is scheduled after arraignment and within thirty (30) days from the date
the court acquires jurisdiction over the person of the accused, unless a shorter period is provided for in
special laws or circulars of the Supreme Court, order a pre-trial conference (Sec. 1, par 1, Rule 118, supra.).

The pre-trial order binds the parties, limits the trial to matters not disposed of, and controls the
course of the action taken during the trial, unless modified by the court to prevent manifest injustice (Sec.
4, Rule 118, supra.).

II. SUBJECT MATTERS OF A PRE-TRIAL CONFERENCE

The pre-trial conference shall consider the following:

A. PLEA BARGAINING

This is a process where the accused usually pleads guilty to a lesser offense or to only one or some
of the counts of a multi-count indictment in return for a lighter sentence than that for the graver charge
(Blacks Law Dictionary, 5th Ed. 1979, p. 1037).

Plea bargaining is not allowed under the Dangerous Drugs Act where the
imposable penalty for the offense charged is reclusion perpetua to death.

B. STIPULATION OF FACTS;

This refers to the agreement of the parties on some facts covered by judicial notice (Sec. 1, Rule 129,
supra), judicial admissions (Sec. 2, Rule 129, supra.), or on matters not otherwise disputed by them.

In cases requiring the presentation of government witnesses or evidence, the trial prosecutor
should exert every effort to secure the admissibility of certain documentary evidence, e.g., medical or death
certificate, autopsy report, forensic chemistry report, ballistic report, Philippine Overseas and Employment
Administration (POEA) certification, a certification from the Firearm and ExplosiveUnit (FEU) on the PNP
that accused was not a licensee of a firearm of any kind or caliber, and the like, for expediency of the court
proceedings.

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The list of witnesses should be qualified by the following statement: that other witnesses may be
presented in the course of the trial.

Whenever necessary, the counter-affidavit of the accused which was admitted during the
preliminary investigation may be resorted to or availed of to demonstrate or establish the defenses theory:

C. MARKING FOR IDENTIFICATION OF EVIDENCE OF THE PARTIES;

D. WAIVER OF OBJECTION TO THE ADMISSIBILITY OF EVIDENCE;

E. MODIFICATION OF THE ORDER OF TRIAL if the accused admits the charge but interposes a
lawful defense; and

F. SUCH OTHER MATTERS as will promote a fair and expeditious trial of the criminal and civil aspects
of the case (Sec. 1, Rule 118, supra.) .

III. NON-APPEARANCE AT THE PRE-TRIAL CONFERENCE

The trial prosecutor shall make sure that he appears at the pre-trial conference to avoid being
sanctioned by the court. (Sec. 3, Rule 118, supra.).

IV. DUTIES OF THE PROSECUTOR AT PRE-TRIAL CONFERENCES

A. BEFORE THE PRE-TRIAL CONFERENCE

The prosecutor should know every fact and detail of the case. This can be accomplished by
interviewing the complainant and other witnesses and after a thorough examination of the
available documentary and other physical evidence.

The prosecutor should also place importance on the testimony of the expert witness. The
knowledge that the prosecutor will gain from said witness will help him determine the
procedures undertaken in the examination of a subject or thing; the scientific or technical terms
applied, and the reason/s in arriving at a certain conclusion.

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B. DURING THE PRE-TRIAL PROCESS

The prosecutor shall bear in mind that in the course of the trial, any
stipulations/admissions entered into during the pre-trial will help him prove his case beyond
reasonable doubt and that every act or incident should be proved by the testimony of qualified
and competent witnesses.

C. AFTER THE PRE-TRIAL CONFERENCE

The trial conference shall ensure that all agreements or admissions made or entered during
the pre-trial conference are reduced in writing and signed by the accused and counsel and
approved by the court.

V. RELEVANT JURISPRUDENCE

1. The omission of the signature of the accused and his counsel, as mandatorily required by the Rules,
renders the Stipulation of Facts inadmissible in evidence (Fule v. Court of Appeals, 162 SCRA 446).

2. A proffer of evidence on the basis of the evidence exhibited by the accused during the pre-trial is
not sufficient. His acquittal on the basis thereof is a nullity for want of due process (People v. Judge
Santiago, 174 SCRA 143).

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PART VII. BAIL

I. CONCEPTS

A. PURPOSE OF BAIL

The purpose of bail is to entitle the accused to provisional liberty pending trial (Bravo, Jr.
v. Borja, 134 SCRA 466 [1985]).

B. NATURE OF THE RIGHT TO BAIL

The right to bail is guaranteed by the Constitution. It is the duty of the prosecutor to
recommend such amount of bail to the courts of justice as, in his opinion, would ensure the
appearance of an accused person when so required by the court. (DOJ Circular No. 6, series of
1981)

C. BASIS OF BAIL

1. The basis for determining bail is the penalty prescribed by law for the offense charged and
not the penalty actually imposed for the accused in view of the attendant circumstances.
(Bravo v. Borja, supra.)

2. To allow bail on the basis of the penalty actually imposed would require a consideration
not only of the evidence of the commission of the crime but also evidence of the aggravating
and mitigating circumstances. There would then be a need for a complete trial, after which
the judge would be just about ready to render a decision in the case. Such procedure defeat
the purpose of bail, which is to entitle the accused to provisional liberty pending trial.

D. WHEN BAIL IS NOT REQUIRED

Bail shall not required for a person charged with violation of a municipal or city ordinance,
a light felony and/or a criminal offense the prescribed penalty for which is not higher than six (6)
months imprisonment and/or a fine of Two Thousand Pesos (P2,000.00), or both, where said
person has established to the satisfaction of the court or any other appropriate authority hearing
his case that he is unable to post the required cash or bail bond, except in the following cases:

1. When he is caught committing the offense in flagrante;

2. When he confesses to the commission of the offense unless the confession is later
repudiated by him in a sworn statement or in open court as having been extracted through
force or intimidation;

3. When he is found to have previously escaped from legal confinement, evaded sentence, or
jumped bail;

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4. When he is found to have previously violated the provisions of Sec. 2 of RA 6036;

5. When he is found to be a recidivist or a habitual delinquent or has been previously


convicted for an offense to which the law or ordinance attaches an equal or greater penalty
or for two or more offense to which it attaches a lighter penalty;

6. When he commits the offense while on parole or under conditional pardon; and

7. When the accused has previously been pardoned by the municipal or city mayor for
violation of municipal or city ordinance for at least two times. (Sec. 1, R.A. No. 6036)

No bail shall also required when the law or the Rules issued by the Supreme Court so
provide.

When a person has been in custody for a period equal to or more than the possible
maximum imprisonment of the offense charged to which he may be sentenced, he shall be
released immediately without prejudice to the continuation of the trial thereof or the
proceedings on appeal. In case the maximum penalty to which the accused may be sentenced
is destierro, he shall be released after thirty (30) days of preventive imprisonment.

A person in custody for a period equal to or more than the minimum of the principal
penalty prescribed for the offense charged without application of the Indeterminate Sentence
Law or any modifying circumstance, shall be released on a reduced bail or on his own
recognizance, at the discretion of the court. (Sec. 16, Rule 114, supra.)

II. DUTIES OF THE PROSECUTOR

A. WHEN BAIL IS A MATTER OF RIGHT

When bail is a matter of right, it is the duty of the prosecutor to recommend such amount
of bail to the courts of justice as, in his opinion, would ensure the appearance of an accused person when so
required by the court.

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The following are the instances when bail is a matter of right:

1. Before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial
Court in Cities or Municipal Circuit Trial Court; and

2. Before conviction by the Regional Trial Court of an offense not punishable by death, reclusion
perpetua or life imprisonment. (Sec. 4, Rule 114, supra.)

B. WHEN BAIL IS A MATTER OF DISCRETION

1. Before conviction, bail is a matter of discretion when the offense charged is punishable by
death, reclusion perpetua of life imprisonment.

2. Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion
perpetua or life imprisonment, admission to bail is discretionary. The Regional Trial Court may
grant or deny bail depending on the existence or non-existence of any of the circumstances
below:

a. That he is a recidivist, quasi-recidivist or habitual delinquent or has committed the


crime aggravated by the circumstance of reiteration;

b. That he has previously escaped from legal confinement, evaded sentence or violated the
conditions of his bail without valid justification;

c. That he committed the offense while under probation, parole or conditional pardon;

d. That the circumstances of his case indicate the probability of flight if released on bail;
or

e. That there is undue risk that he may commit another crime during the pendency of the
appeal.

3. If upon conviction, the Regional Trial Court imposes the penalty of imprisonment in excess of
six (6) years, but not exceeding twenty (20) years, the accused shall be denied bail or his bail
shall be cancelled, upon a showing by the prosecution, with notice to the accused, of any of the
foregoing circumstances.

4. If none of the circumstances enumerated above exists, the grant of bail becomes a matter of
right. (Sec. 5, Rule 114, supra.)

C. RIGHT TO NOTICE, MANDATORY

The duty of the prosecutor to recommend bail entitles him to a notice every time bail is applied for,
even if bail is a matter of right. (Lavides v. CA, GR No. 129670, Feb. 1, 2000)

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When bail is a matter of discretion, it is the right of the prosecutor to be notified so he could present
evidence to prove that the evidence of guilt of the accused is strong. Denial of such notice deprives the State
of its right to be heard, thereby making the bail proceedings void.

D. RIGHT TO BAIL IN INQUEST CASES

A person lawfully arrested and detained but who has not yet been formally charged in court can
seek his provisional release through the filing of an application of bail or release on recognizance.

E. GUIDELINES IN RECOMMENDING BAIL

1. When the bail is a matter of right, the prosecutor shall use the DOJ Bail Bond Guide as his primary
guide in recommending bail.

2. However, where justice demands reduction or increase of the amount of bail as indicated in the Bail
Bond Guide, the trial prosecutor shall apply the criteria set forth in Sub-title F hereof; provided,
however, that any recommendation by the trial prosecutor for the reduction or increase of the
amount of bail shall be with the prior approval of the Chief State/Provincial/City Prosecutor
concerned.

3. The prosecutor should be able to refute, among others, the following factors during the hearing on
the application for bail:

a. Nature and circumstances of the crime;

b. Character and reputation of the accused;

c. The weight of the evidence against him;

d. The probability of the accused appearing at the trial,

e. Whether or not the accused is a fugitive from justice

f. Whether or not the accused is under bond in other cases. (People v. Dacudo, 170 SCRA
489).

F. CRITERIA IN RECOMMENDING THE AMOUNT OF BAIL

In recommending the amount of bail to be granted by the court, the prosecutor shall take into
consideration the following standards and criteria:

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1. Financial ability of the respondent/accused to post bail

2. Nature and circumstances of the offense;

3. Penalty for the offense charged;

4. Age, state of health, character and reputation of the respondent/accused under detention;

5. Weight of the evidence against the respondent/accused under detention;

6. Forfeiture of other bonds and pendency of other cases wherein the respondent/accused under
detention is under bond;

7. The fact that respondent/accused under detention was a fugitive from justice when apprehended;
and

8. Other factors affecting the probability of the accused appearing at the trial. (Sec. 6, Rule 114,
Revised Rules on Criminal Procedure; DOJ Circular No. 4, series of 1996)

G. RULES IN COMPUTING THE BAIL TO BE RECOMMENDED

To achieve uniformity in the amount of bail to be recommended, the following rules shall be
observed:

1. Where the penalty is reclusion perpetua, life imprisonment, reclusion perpetua to death
or death, bail is not a matter of right; hence, it shall not be recommended.

2. Where bail is a matter of right and the imposable penalty is imprisonment and/or fine, the
bail shall be computed on the basis of the penalty of imprisonment applying the following
rules:

a. Where the penalty is reclusion temporal (regardless of period) to reclusion


perpetua, bail shall be computed based on the maximum of reclusion temporal.

b. Where the imposable penalty is correccional or afflictive, bail shall be based on the
maximum of the penalty, multiplied by Php2,000.00. A fraction of a year shall be
rounded-off to one year.

c. For crimes covered by the Rules on Summary Procedure and Republic Act No.
6036, bail is not required except when respondent/accused is under arrest, in
which case, bail shall be computed in accordance with this guideline.

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d. For crimes of reckless imprudence resulting in homicide arising from violation of
the Land Transportation and Traffic Code, bail shall be Php30,000.00 per
deceased person.

e. For violation of Batas Pambansa Blg. 22, bail shall be fifty per cent (50%) of the
amount of checks but should not be less than Php2,000.00 nor more tha
Php30,000.00.

3. Where the imposable penalty is only a fine, bail shall be computed as follows:

a. Fine not exceeding Php2,000.00, bail is not required.

b. Fine or more than Php2,000.00, bail shall be 50% of the fine but should not exceed
Php30,000.00

c. In case of reckless imprudence resulting to damage to property, bail shall be three-


eights (3/8) of the value of the damage but not exceeding Php30,000.00 except
when covered by the Rules on Summary Procedure.
4. Bail based on the maximum penalty, multiplied by Php10,000.00 shall be applied to the
following offenses under the following laws:

a. Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of 2002);

b. Republic Act No. 6539 (Anti-Carnapping Act), as amended by RA 7659;

c. Republic Act No. 7659 (for other crimes covered by it);

d. Presidential Decree No. 1866 (Illegal Possession of Firearms, Ammunition or


Explosives), as amended by RA 8294;

e. Republic Act No. 1937 (Tariff and Customs Code), as amended; or

f. Rebellion, insurrection or coup d etat as amended by Republic Act No. 6968.

g. Republic Act No. 7610, as amended (Special Protection of Children Against Child
Abuse, Exploitation and Discrimination Act)

h. Republic Act No. 9208 (Anti-Trafficking in Persons Act of 2003)

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H. HEARING ON PETITION FOR BAIL IS REQUIRED IN NON-BAILABLE OFFENSES

The prosecutor shall ensure that a hearing on the petition for bail is conducted by the judge as it is
absolutely indispensable for the latter to properly determine whether the prosecutions evidence is weak or
strong on the issue of whether or not to grant bail to an accused charged with a heinous crime where the
imposable penalty is death, reclusion perpetua or life imprisonment. (Tabao v. Espina, 257 SCRA 298
[1996]). He must therefore be prepared for such a hearing.

I. EXCEPTION TO THE RULE ON NON-BAILABLE OFFENSES

An exception to the rule on non-bailability of offenses punishable by reclusion perpetua, life


imprisonment or death is when the accused is a minor since minority is a special mitigating circumstance
that allows the imposition of the penalty one degree lower than that prescribed by law (Bravo v. Borja, 134
SCRA 466 [1985]), aside from the fact that RA9344, otherwise known as the Juvenile Justice and Welfare
Act of 2006, provides that every child in conflict with the law (CICL) shall be entitled to bail and that the
mitigating circumstance of minority should be taken into consideration in the hearing for the petition for
bail.

J. RIGHT OF THE PROSECUTION TO PRESENT ALL EVIDENCE DURING THE BAIL


HEARING

Whether the motion for bail of a defendant who is in custody for an offense punishable by reclusion
perpetua, life imprisonment or death be resolved in a summary proceeding or in the course of a regular
trial, the prosecution must be given an opportunity to present, within a reasonable time, all the evidence
that it may desire to introduce before the court should resolve the motion for bail (People v. San Diego, 26
SCRA 522 [1968]).

K. EFFECT OF A DENIAL OF THE OPPORTUNITY TO PRESENT EVIDENCE FOR PURPOSES


OF THE PETITION FOR BAIL

Should the prosecution be denied of the opportunity to present all the evidence it may desire to
introduce, there would be a violation of procedural due process and the order of the court granting bail
should be considered void.

L. PETITION FOR BAIL IN CONTINUOUS TRIAL

In case a petition is filed by the accused and the court orders a continuous trial of the case, the
public prosecutor shall be prepared to present his principal witnesses. Where there are several accused and
one or two filed a petition to bail, the trial prosecutor shall, before the presentation of his first witness,
manifest in open court that the evidence to be presented in the hearing of the petition for bail shall be
adopted as its evidence-in-chief, with a reservation to present additional evidence during the trial proper
when necessary.

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M. CANCELLATION OF THE BAIL BOND

Upon application filed with the court and after due notice to the prosecutor, the bail bond may be
cancelled upon surrender of the accused or presentation of proof of his death.

The bail bond shall be deemed automatically cancelled upon acquittal of the accused or dismissal
of the case or execution of the final judgment of conviction.

In all instances, the cancellation shall be without prejudice to any liability on the bond.

III. OTHER MATTERS

A. RELEASE ON RECOGNIANCE; GUIDELINES

1. Whenever allowed pursuant to law or the Rules of Court, the court may release a person in
custody on his own recognizance or that of a responsible person.

2. A hearing on the petition for the custody of the accused for purposes of his/her release on
recognizance is mandatory (Loyola v. Gabo, Jr., AM No. RTJ-00-15-24, Jan. 26, 2000)

3. The prosecutor should see to it that hearing is conducted to ensure that the requirements
of Sec. 1 and 2 of R.A. No. 6036 are complied with. (Ibid.)

B. REQUIREMENTS FOR THE GRANT OF RECOGNIZANCE UNDER RA NO. 6036

The trial prosecutor should, during the hearing on recognizance, see to it that:

1. The accused comes within the coverage of Sec. 1 of RA 6036 and RA 9344 (Juvenile Justice
and Welfare Act);

2. The accused shall sign, in the presence of two (2) witnesses of good standing in the
community, a sworn statement binding himself, pending final decision of his case, to report
to the Clerk of Court hearing his case periodically every two (2) weeks;

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3. In case the Court opts to place the accused under the custody of the responsible person in
the community, the prosecutor should see to it that:

a. Such person under whose custody the accused is placed, shall execute his own
affidavit stating his willingness to accept custody of the accused; and

b. The accused shall also include in his own affidavit mentioned above, a statement
that he binds himself to accept the responsibility of the citizen so appointed by the
court as his custodian.

IV. RELEVANT JURISPRUDENCE

1. The Court should not even allow a motion for bail to be set for hearing unless it has acquired
jurisdiction over the person of the accused and the case by its filing in Court. (Dinapol v.
Baldonado, 225 SCRA 110)

2. In order that a person can invoke his right to bail, it is not necessary that he should wait until an
Information is filed against him. From the moment that he is placed under arrest, detention or
restraint by the officers of the law, he can claim this guarantee of the Bill of Rights, and this right
he retains unless and until he is charged with a capital offense and evidence of his guilt is strong.
(Herreras Teehankee v. Rovira, 75 Phil. 634)

3. Where the accused was charged for murder without the benefit of a preliminary investigation and
trial had already began over his objections, the accused remains entitled to be released on bail as a
matter of right pending the preliminary investigation. Should the evidence already of record
concerning the guilt of the accused be, in the reasonable belief of the prosecutor, strong, the
prosecutor may move in the trial court for cancellation of the bail. (Vide Tolentino v. Caano, Jr.,
322 SCRA 559)

4. If the prosecution is denied the opportunity to present, within a reasonable time, all the evidence
that it may want to introduce before the court may resolve the application for bail, there would be
a denial of due process, as a consequence of which, the courts order in respect of the motion or
petition is void. (Carpio,et.al. v. Maglalang, etc., et.al. 196 SCRA 41).

5. There is no need of bail in cases covered by the Rules on Summary Procedure (Martinez vs. Paguio,
394 SCRA 287 [2002]).

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PART. VIII. ARREST

I. REMEDY OF THE PROSECUTOR WHEN NO WARRANT OF ARREST WAS ISSUED BY


THE JUDGE

If the investigating judge is satisfied that there is probable cause but did not issue the warrant of
arrest contrary to the prosecutor/s belief that there is a need to place the accused under custody, the speedy
and adequate remedy of the prosecutor is to immediately file the Information so that the Regional Trial
Court judge may issue the warrant for the arrest of the accused. (Samulde v. Salvani, Jr., 165 SCRA 724
[1988])

II. REQUEST FOR A COPY OF THE RETURN

If the warrant of arrest has been issued, the prosecutor may request the warrant officer that he be
furnished with the officers return relative thereto. The prosecutor shall, as far as practicable, coordinate
with the witnesses from time to time to ascertain the whereabouts of the accused pending the latters arrest.

III. RELEVANT JURISPRUDENCE

1. The grounds of suspicion are reasonable when, in the absence of actual belief of the
arresting officers, the suspicion that the person to be arrested is probably guilty of
committing the offense, is based on actual facts, i.e. supported by circumstances
sufficiently strong in themselves to create the probable cause of guilt of the person to be
arrested. A reasonable suspicion therefore must be founded on probable cause, coupled
with good faith on the part of the peace officers making the arrest. (People v. Doria, 301
SCRA 668)

2. An arrest signifies restraint on person, depriving one of his own will and liberty, binding
him to become obedient to the will of the law. (Larranaga v. Court of Appeals, 287 SCRA
589)

3. A letter-invitation is equivalent to arrest. Where the invitation comes from a powerful


group composed predominantly of ranking military officers and the designated
interrogation site as a military camp, this is obviously a command or an order of arrest.
(Sanchez v. Demetriu, 227 SCRA 627 [1993]).

4. A police officer is not justified in using unnecessary force in effecting arrest or in treating
with wanton violence the arrested person or in resorting to dangerous means when the
arrest could be effected otherwise. (Galang v. People, G.R. No. 128536, January 31, 2000)

5. A warrant of arrest does not become stale or functus oficio unlike a search warrant which
is valid only for ten days. A warrant of arrest remains valid until arrest is effected or the
warrant lifted. (Managan v. CFI, 189 SCRA 217)

PART IX. TRIAL

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I. GENERAL RULES

A. CONCEPT

A trial is a judicial examination of the claims at issue in a case which is presented by the
prosecution and defense to enable the court to arrive at a judgment pronouncing either the guilt or
innocence of the accused (U.S. v. Raymundo, 14 Phil. 416 [1909]).

The object of a trial is to mete out justice, and to convict the guilty and protect the innocent.
Thus, the trial should be a search for the truth and not a contest over technicalities and must be
conducted under such rules as will protect the innocent (23 C.J. S. 274).

The trial prosecutor shall always be prepared to conduct the prosecution with his witnesses
who shall be subpoenaed well in advance of the scheduled trial dates. No postponement of the trial
or other proceedings of a criminal case shall be initiated or caused by the trial prosecutor except in
instances where the postponement is occasioned by the absence of material witnesses or for other
cause beyond his control or not attributable to him.

B. COVERAGE

All criminal cases brought for trial before the Regional Trial Courts, Metropolitan Trial
Courts, Municipal Circuit Trial Courts, and Municipal Trial Courts except those cases that are
subject to the Rules on Summary Procedure.

III. TRIAL PREPARATION

A. PREPARATION OF TRIAL BRIEF

The prosecutor assigned to prosecute the case shall prepare the trial guide. The trial guide,
as accomplished, shall be made a permanent part of the prosecutions records of the case. Its
preparation shall be in accordance with DOJ Circular No. 47, s. 2000 (please refer to Appendix F
on p. 311 of this Manual).

B. ORDER OF PRESENTATION OF WITNESSES

The order in the presentation of witnesses will be left to the discretion of the trial
prosecutor. However, the prosecutor should take into consideration the order of events as
established by the evidence of the prosecution.

Witnesses who will testify for the first time shall be afforded the opportunity to observe
criminal proceedings in court to help them overcome their anxiety, excitement and tension.

As far as practicable, crucial witnesses shall be summoned by the trial prosecutor before
the actual trial dates for briefing on their testimony and demeanor during the trial for orderly and
efficient presentation in court.

C. OFFER OF EXHIBITS

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The trial prosecutor shall safely keep his documentary and other physical evidence and
prepare a list thereof in the order they have been marked as exhibits, identifying each by letter or
number, describing it briefly, and stating its specific purpose or purposes.

D. DEFENSE EVIDENCE

1. Before reception of evidence for the defense starts, the trial prosecutor shall ask from the
adverse counsel the number of witnesses he intends to present and the nature of their
testimony.

2. if the names of the defense witnesses are disclosed, the trial prosecutor shall elicit from
reliable sources the whereabouts of these witnesses, their moral character, background,
reasons for testifying and relationship with the accused, among other things, to enable him
to have a clear view of the defense of the accused.

E. DISCHARGE OF ACCUSED TO BE STATE WITNESS

When two or more persons are jointly charged with the commission of any offense, the trial
prosecutor, before resting his case, shall move for the discharge of one or more of the accused with
their consent so that they may be witnesses for the State. The motion shall indicate that:

1. there is absolute necessity for the testimony of the accused whose discharge is requested
(Sec. 17(a), Rule 119, Rules on Criminal Procedure).

2. There is no other direct evidence available for the proper prosecution of the offense
committed, except the testimony of said accused, (Sec. 17[b], Rule 119, supra.) as when he
alone has knowledge of the crime, and not when his testimony would simply corroborate
or otherwise strengthen the evidence in the hands of the prosecution (People v. Borja,et.al.
106 Phil. 188).

3. The testimony of said accused can be substantially corroborated in material points

4. Said accused does not appear to be the most guilty (Lugtu v. Court of Appeals, 183 SCRA
388).

5. Said accused has not, at any time been convicted of any offense involving moral turpitude.

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F. ADMISSION TO THE WITNESS PROTECTION PROGRAM OF AN ACCUSED WHO HAS
BEEN DISCHARGED

An accused who is discharged from an Information or criminal complaint in order that he may be
a state witness as provided in the preceding section may, upon his petition, be admitted to the Witness
Protection Program under RA 6981, otherwise known as The Witness Protection, Security and Benefit Act
if he complies with the other requirements of said Act.

G. OTHER PERSONS WHO MAY AVAIL OF THE WITNESS PROTECTION PROGRAM

The trial prosecutor shall recommend the admission to the Witness Protection Program of the
following persons:

1. Any person who has witnessed or has knowledge of or information on the commission of a crime
and has testified or its testifying or is about to testify before any judicial or quasi-judicial body, or
before any investigating authority, provided that:

The offense in which his testimony will be used is a grave felony as defined under the
Revised Penal Code or its equivalent under special laws;

His testimony can be substantially corroborated on its material points;

He or any member of his family within the second civil degree of consanguinity or affinity
is subjected to threats to his life or bodily injury or there is a likelihood that he will be killed,
forced, intimidated, harassed or corrupted to prevent him from testifying, or to testify
falsely or evasively, because or on account of his testimony; and

He is not a law enforcement officer, even if he would be testifying against other law
enforcement officers. In such a case, only the immediate members of his family may avail
themselves of the protection provided for under the Act.

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2. Any person who has participated in the commission of a crime and desires to be a witness for the
State, whenever the following circumstances are present:

The offense in which his testimony will be used is a grave felony as defined under the
Revised Penal Code or its equivalent under special laws;

There is absolute necessity for his testimony;

There is no other direct evidence available for the proper prosecution of the offense
committed;

His testimony can be substantially corroborated on its material points;

He does not appear to be the most guilty; and

He has not at any time been convicted of any crime involving moral turpitude.

H. MOTIONS FOR POSTPONEMENT BY THE ACCUSED

The trial prosecutor shall vigorously oppose any motion for postponement initiated by the accused,
unless for valid and compelling reasons. He should make of record his objections thereto, leaving to the
courts discretion the disposition of the subject motions (People v. Borja, supra.).

I. DISCONTINUANCE OF PROCEEDINGS

During the presentation of the prosecutions evidence, the trial prosecutor shall not cause or allow
the discontinuance of the proceedings except for other similarly compelling reasons not attributable to him
(Ibid.).

J. PRESENTATION OF EVIDENCE

The trial prosecutor is bound to complete the presentation of his evidence within the trial dates
assigned to him. After the lapse of said dates, he is deemed to have completed his evidence presentation.
However, based on serious reasons, he may file a verified motion to allow him additional trial dates at the
discretion of the court.

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III. PROCEDURE

A. CONTINUOUS TRIAL UNTIL TERMINATED

Upon receipt of the notice of trial, the prosecutor shall review the record of the case for trial and
complete his preparation therefor bearing in mind that trial, once commenced, may continue from day to
day until terminated. He may, however, move for postponement for a reasonable period of time for good
cause (Sec. 2, par. 1, Rule 119, supra.).

The time limitation is not applicable to :

1. Criminal cases covered by the Rule on Summary Procedure or where the penalty prescribed by law
does not exceed six (6) months imprisonment, or a fine of one thousand pesos (P1,000.00) or both,
irrespective of other imposable penalties, is governed by Rule 123.

2. RA 4908 (A Act Requiring Judges of Courts to Speedily Try Criminal Cases Wherein the Offended
Party is a Person about to Depart from the Philippines with No Definite Date of return) requires
such cases to take precedence over all other cases before our courts except election and habeas
corpus cases. The trial in these cases shall commence within three days from the date the accused
is arraigned and no postponement of the initial hearing shall be granted except on the ground of
illness on the part of the accused or other grounds beyond the control of the accused.

3. Speedy Trial of Child Abuse cases the trial of child abuse cases shall take precedence over all other
cases before the courts, except election and habeas corpus cases. The trial in said cases shall
commence within three (3) days from the date the accused is arraigned and no postponement of
the initial hearing shall be granted except on account of the illness of the accused or other grounds
beyond his control (Sec. 21, Rules and Regulations on the Reporting and Investigation of Child
Abuse Cases issued pursuant to Sec. 32 of R.A. No. 7610, otherwise known as the Child Abuse
Act).

4. Violations of the Comprehensive Dangerous Drugs Act of 2002 (RA 9165) trial of these cases shall
be finished by the court not later than ninety (90) days from the date of the filing of the Information.

5. Under Administrative Code No. 104-96 of the Supreme Court, the cases of kidnapping and/or
kidnapping for ransom, robbery in band, robbery committed against a banking or financial
institution, violation of the Anti-Carnapping Act of 1972 as amended, and Other Heinous Crimes
(RA 7659) committed within the respective territorial jurisdiction of the courts shall undergo
mandatory continuous trial and shall be terminated within sixty (60) days from commencement of
the trial.

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B. ORDER OF TRIAL

Trial shall proceed in the following order pursuant to Sec. 11, Rule 119 of the Revised Rules on
Criminal Procedure:

1. The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability.

2. The accused may present evidence to prove his defense, and damages, if any, arising from the
issuance of any provisional remedy in the case.

3. The parties may then respectively present rebutting evidence only, unless the court, in furtherance
of justice, permits them to present additional evidence bearing upon the main issue.

4. Upon admission of the evidence, the case shall be deemed submitted for decision unless the court
directs the parties to argue orally or to submit memoranda.

5. However, when the accused admits the act or omission charged in the Complaint or Information
but interposes a lawful defense, the order of trial may be modified accordingly.

C. PRESENTATION OF WITNESSES

The order in the presentation of witnesses shall, as far as practicable, conform to the logical
sequence of events obtaining in the case on trial in order to present a clear, organized and coherent picture
to the court of the prosecutions evidence.

For example, in the case of prosecution under the Comprehensive Dangerous Drugs Act of 2002,
the trial prosecutor should present the forensic chemist who examined the dangerous drug ahead of the
other witnesses in order that the court may at once have a view of the real evidence (either the prohibited
or regulated drug subject of the case) and so that such evidence may be immediately identified by the other
witnesses thus avoiding the recall of witnesses later on.

The rule of logical sequencing notwithstanding, a witness whose testimony is vital to the case and
whose life is in danger or who may be sick/injured and may possibly die should be made to testify as early
as practicable.

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D. CONDITIONAL EXAMINATION OF WITNESS FOR THE PROSECUTION

The trial prosecutor shall move for the conditional examination of a prosecution witness who is too
sick or infirm to appear at the trial or has to leave the Philippines with no definite date of returning. Such
examination shall be done in the presence of the accused or in his absence after reasonable notice to attend
the examination has been served on him, shall be conducted in the same manner as an examination at the
trial. Failure or refusal on the part of the accused to attend the examination after notice herein before
provided shall be considered a waiver (Sec. 15, Rule 119, supra.).

E. CROSS-EXAMINATION OF THE DEFENSE WITNESSES

The prosecutor shall endeavor to secure well in advance all available information about a defense
witness in order to prepare for an effective cross-examination. Where the testimony of a defense witness
bears no effect on the evidence of the prosecution, a cross-examination need not be conducted.

F. REBUTTAL EVIDENCE

The presentation and nature of rebuttal evidence will depend on the effect which the defense
evidence may have caused on the prosecutions evidence-in-chief. The recall of a witness who already
testified during the evidence-in-chief presentation merely to refute what a defense witness may have stated
during his defense testimony is not generally rebuttal evidence. Where there is nothing to refute, rebuttal
evidence is unnecessary.

G. REQUEST FOR SUBPOENA

In all cases requiring the appearance in court of a witness for the purpose of testifying upon a report
(e.g. medico-legal, autopsy, chemistry, ballistics, statement of accounts, etc.) prepared by him or by his
office, the trial prosecutor shall indicate the reference number of the report in the request for subpoena.

H. CUSTODY OF PHYSICAL AND REAL EVIDENCE PENDING TRIAL

In keeping with the professional responsibility of the trial prosecutor, all the physical and real
evidence shall remain in custody with the police authorities or other law enforcement officers. In those
instances when the evidence is of a perishable nature, the trial prosecutor shall ensure that measures are
taken to provide for secondary evidence consisting of photographs, or pictures of the physical and real
evidence, which evidence shall be attached to the records of the case.

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III. RELEVANT JURISPRUDENCE

1. The general rule is that motions for postponement are granted only upon meritorious
ground and no party has the right to assume that his motion will be granted. (De Guia v.
Guerrero, Jr. 234 SCRA 625 [1994]);

2. Under Sec. 9, Rule 119 of the Revised Rules on Criminal Procedure, the petitioners have
the burden of proving the factual basis of their motions for the dismissal of the
Information on the ground of a denial

3. The trial of an accessory can proceed without awaiting the result of the separate charge
against the principal. The corresponding responsibilities of the principal accomplice and
accessory are distinct from each other. As long as the commission of the offense can be
duly established in evidence, the determination of the liability of the accomplice or
accessory can proceed independently of that of the principal. (Vino v. People, 178 SCRA
626);

4. The right of two or more accused in a criminal case, to be tried separately is essential and
cannot be denied by the court (Sec. 33 of General Orders No. 58 (U.S. v. Torres, 62 Phil.
942). When a separate trial is demanded and granted, it is the duty of the prosecution to
repeat and produce all its evidence at each and every trial, unless it had been agreed by the
parties that the evidence at each and every trial, unless it had been agreed by the parties
that the evidence for the prosecution would not have to be repeated at the second trial
and all the accused had been present during the presentation of the evidence for the
prosecution and their attorneys had the opportunity to cross-examine the witnesses for
the prosecution who had testified. (People v. CArpio, 68 Phil. 490);

5. The rule therefore, relative to the right of the government prosecutor to utilize a person
who has participated in the commission of a crime as a witness for the prosecution is as
follows:

a. When an offense is committed by more than one person, it is he duty of the


prosecutor to include all of them in the Complaint or Information (Sec. Rule 110,
Rules of Court);

b. If the prosecutor desires to utilize one of those charged with the offense as a
government witness, the prosecutor may ask the court to discharge one of them
after complying with the conditions prescribed by law. (Sec. 9,. Rule 119);

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c. There is nothing in the rule from which it can be inferred that before a person can
be presented as a government witness, that he be first included as a accused in the
Information, for the prosecutor is free to produce as a witness anyone whom he
believes can testify to the truth of the crime charged (U.S. v. Enriquez, 40 Phil.
603);

d. The failure to follow the requirements of the rule relative to the use of a person,
himself particeps criminis, as a government witness does not violate the due
process clause of the constitution, nor render his testimony ineffectual if otherwise
competent and admissible. (People v. Aninon, 158 SCRA 701);

6. The discharge contemplated by the rule is one effected or which can be effected at any
stage of the proceedings, from the filing of the Information to the time the defense starts
to offer any evidence. (People v. Aninon, 158 SCRA 701);

7. The mere fact that the witness sought to be discharged had pleaded guilty to the crime
charged does not violate the rule that the discharged defendant must not appear to be the
most guilty. And even if the witness should lack some of the qualifications enumerated
by Sec. 17, Rule 119, his testimony will not, for that reason alone, be discarded or
disregarded. (People v. De Leon,et.al. 108 Phil. 800 [1960]);

8. The ground underlying the rule is not to let a crime that has been committed go
unpunished; so an accused who is not the most guilty is allowed to testify against the most
guilty, in order to achieve the greater purpose of securing the conviction of the more or
most guilty and the greatest number among the accused permitted to be convicted for the
offense committed. (People v., Bayona, et.al., 108 Phil. 104 [1960]). All the perpetrators
of the offense bound in conspiracy are equally guilty. (People v./ Borja, 147 SCRA 169
[1987]);

9. This is an indispensable requirement because it is a notorious fact in human nature that a


culprit who confesses to a crime, is likely to put the blame on others rather than himself.
Thus, even though a court may get the statement of a discharged accused that other
persons were engaged in the crime it is unsafe to accept, without corroborating evidence,
his statements concerning the relative blame to be attached to different members of his
gang. (People v. Mandagan, 52 Phil. 62 [1928]);

10. Meaning of not the most guilty is not the least guilty (People v. Court of Appeals, 131
SCRA 107 [1984]. The rule does not require that he be the least guilty but only that he
not be the most guilty. (People v. Faltado, 84 Phil. 89).

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PART X. APPEAL/ PETITION FOR REVIEW

I. GENERAL RULES

A. WHAT MAY BE APPEALED

The resolutions of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City


Prosecutor in criminal cases may be the subject of a petition for review or appeal.

B. VENUE FOR THE FILING OF THE APPEAL/


PETITION FOR REVIEW

1. Appeals from/petitions for review of the resolution of the Provincial/City


Prosecutors in cases which fall under the jurisdiction of the Regional Trial Court
shall be filed with the Office of the Secretary of Justice.

2. Appeals from/petitions for review of the resolutions of the Provincial/City


Prosecutors in cases cognizable by the Metropolitan Trial Courts, Municipal Trial
Court, Municipal Circuit Trial Courts shall be filed with the Office of the Regional
State Prosecutor. The resolution of the Regional State Prosecutor is final.

3. In the National Capital Region, the appeals/petitions for review of the City
Prosecutors in cases filing under the jurisdiction of the Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial Courts shall be filed with the
Office of the Chief State Prosecutor. The resolution of the Chief State Prosecutor
is final.

The provisions of the preceding paragraphs on the finality of the resolution


of the Chief State Prosecutor and the Regional State Prosecutor notwithstanding,
the Secretary of Justice may, in the interest of justice and pursuant to his residual
authority of supervision and control over the prosecutors of the Department of
Justice, order the review by his office of the resolutions of the Chief State Prosecutor
and the Regional State Prosecutors in the cases appealed to them.

C. PERIOD TO FILE THE APPEAL/PETITION FOR REVIEW

The appeal/petition for review must be filed within fifteen (15) days from receipt of the
questioned resolution by the party or his counsel or if a motion for reconsideration has been filed,
within fifteen (15) days from receipt of the resolution denying the motion for reconsideration.
Only one (1) motion for reconsideration shall be entertained.

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D. FORM AND CONTENTS

The appeal/petition for review shall be verified by the appellant/s/petitioner/s and


shall contain the following:

1. Names and addresses of the parties;

2. The Investigation Slip Number (I.S. No.) and/or Criminal Case Number (C.C. No.), if any
and the title of the case including the offense charged in the complaint or information;

3. The venue of the preliminary investigation;

4. The specific material dates showing that it was filed on time;

5. A clear and concise statement of the facts, the assignment of errors, and the legal basis of
the appeal/petition for review;

6. Proof of service of a copy/ies of the appeal/petition for review to the adverse party/ies or
counsel and the prosecution office concerned;

7. Proof of payment of the appeal fee

The investigating/reviewing/approving prosecutor shall not be impleaded as


appellee. The party taking the appeal shall be referred to in the appeal as either
complainant-appellant or respondent-appellant.

E. DOCUMENTARY ATTACHMENTS

The appellant/petitioner shall append to his appeal/petition a legible duplicate


original or certified true copy of the resolution appealed from together with legible copies of the
complaint, affidavits/sworn statements (including their translations, if any, duly certified by the
provincial/city prosecutor) and other evidence submitted by both parties in the preliminary
investigation or re-investigation. Evidence submitted for the first time on appeal shall not be
admitted. If submitted, the reviewing prosecutor shall disregard it. A copy of the motion to defer
proceedings shall likewise be attached to the appeal/petition when an information has already
been filed in court.

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F. EFFECT OF FAILURE TO COMPLY WITH THE REQUIREMENTS

The failure of the appellant/petitioner to comply with any of the requirements in


the provisions under sub-titles B, C, D, and E shall constitute sufficient ground for the
dismissal of the appeal.

G. WHEN AN INFORMATION HAS BEEN FILED IN COURT

In appeals filed before the Secretary of Justice/Chief State Prosecutor/Regional


State Prosecutor and when an information has already been filed in court, it is the duty of
the appellant to immediately inform the concerned appellate authority of the action of the
court on the motion to defer proceedings. Failure of the appellant to inform shall be a
ground for the dismissal of the appeal/petition for review.

H. WHEN ACCUSED/APPELLANT IS ARRAIGNED DURING PENDENCY OF


APPEAL/PETITION FOR REVIEW

When the accused is arraigned during the pendency of the appeal, the prosecutor
concerned shall likewise immediately inform the Secretary of Justice/Chief State
Prosecutor/Regional State Prosecutor of such arraignment.

I. APPELLEES COMMENT

Within a non-extendible period of fifteen (15) days from receipt of a copy of the
appeal/petition for review, the appellee may file a verified answer/comment indicating
therein the date that the copy of the appeal/petition was received with proof of service of
the comment to the appellant. If no comment is filed, the case shall be resolved on the
basis of the appeal/petition.

J. SUMMARY ACTION

The Secretary of Justice/Chief State Prosecutor/Regional State Prosecutor may


dismiss the appeal outright for being patently without merit or manifestly intended for
delay, or when the issues raised therein are too unsubstantial to require consideration. If
an Information has been filed in court, the appeal/petition for review shall not be given
due course if the accused has already been arraigned.

K. WITHDRAWAL OF THE APPEAL/PETITION FOR REVIEW

The appeal/petition for review may be withdrawn at any time before it is finally
resolved, in which case the questioned resolution shall stand as if no appeal/petition has
been taken.

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L. MOTION FOR REINVESTIGATION PENDING APPEAL

1. When an Information Has Not Yet Been Filed in Court

At any time after the filing of the appeal/petition and before its resolution,
the appellant/petitioner may file a motion for reinvestigation before the Office of
the Secretary of Justice/Office of the Chief State Prosecutor/Office of the Regional
State Prosecutor on the ground that new and material evidence has been newly
discovered which appellant/petitioner could not, with reasonable diligence, have
discovered during the preliminary investigation and which, if produced and
admitted, would probably change the resolution.

2. When an Information Has Been Filed in Court

If the case is pending appeal and an Information has been filed in court,
the appellant shall inform the court of the filing of a motion for reinvestigation with
the Office of the Secretary/Regional State Prosecutor and shall ask the court to
defer proceedings. The reinvestigation of the case shall be conducted by the
prosecution office from which the appeal was taken. (see Marcelo vs. C.A., 235
SCRA 39 [1994]; Roberts vs. C.A., 254 SCRA 207 [1996]; Dimatulac vs Vilon, 297
SCRA [1998]; Solar Entertainment vs. How, 338 SCRA 511 [2000]; Community
Rural Bank of Guimba vs. Talavera, 255 SCRA 34 [2005])

M. DISPOSITION OF THE APPEAL/PETITION FOR REVIEW

The Secretary of Justice/Chief State Prosecutor/Regional State Prosecutor may


reverse, affirm or modify the appealed resolution. They may, motu proprio or on motion
of the appellee, dismiss outright the appeal/petition on any of the following grounds:

1. That the petition was filed beyond the period prescribed in Sec. C hereof;

2. That the offense has prescribed;

3. That there is no showing of any reversible error;

4. That the procedure or requirements herein prescribed have not been complied
with;

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5. That the questioned resolution is interlocutory in nature, except when it suspends
the proceedings based on the alleged existence of prejudicial question;

6. That the accused had already been arraigned when the appeal/petition for review
was taken, or was arraigned during the pendency of the appeal/petition; or,

7. That other legal or factual grounds exist to warrant a dismissal.

N. MOTION FOR RECONSIDERATION

The aggrieved party may file with the offices concerned, a motion for
reconsideration within a non-extendible period of fifteen (15) days from receipt of the
resolution on the petition/appeal.

He/She shall:

1. Furnish the adverse party or his counsel and the prosecution offices concerned
with copies thereof;

2. Submit proof of such service; and

3. Pay the corresponding legal fee/s.

Only one (1) motion for reconsideration shall be entertained.

O. EFFECT OF FILING THE APPEAL/ PETITION FOR REVIEW

The appeal/petition for review shall not prevent the filing of the Information in
court unless the Secretary of Justice/Chief State Prosecutor/Regional State Prosecutor as
the case may be, directs otherwise.

Pending the resolution of the appeal/petition for review, the accused may move
before the court for the suspension of the proceedings, to hold in abeyance the issuance of
a warrant of arrest and the deferment of his arraignment.

II. RELEVANT JURISPRUDENCE

1. Sec. 79 of the Revised Administrative Code defines the extent of a department Secretarys
power. The power of control therein contemplated means (the power of the department
head) to alter, modify or nullify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former for that of the
latter. The power of control implies the right of the President (and naturally of his/her
alter ego) to interfere in the exercise of such discretion as may be vested by law in the

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officers of the national government, as well as act in lieu of such officers (Noblejas v. Sales,
67 SCRA 47).

2. While it is the duty of the prosecutor to prosecute persons who, according to evidence
received from the complainant, are shown to be guilty of a crime, the Secretary of Justice
is likewise bound by his oath of office to protect innocent persons from groundless, false
or serious prosecution. He would be committing a serious dereliction of duty if he orders
or sanctions the filing of an Information based upon a complaint where he is not convinced
that the evidence would warrant the filing of the action in court. As he has the power of
supervision and control over prosecuting officers, the Secretary of Justice has the ultimate
power to decide which, as between two conflicting theories of the complainant and the
respondents, should be believed (Vda. De Jacob v. Puno, 131 SCRA 148 [1984]).

3. The DOJ Order allows the filing of an Information in court after the consummation of the
preliminary investigation even if the accused can still exercise the right to seek review of
the prosecutors recommendation with the Secretary of Justice (Solar Entertainment, Inc.
v. How, 338 SCRA 511 [2000]).

4. There is nothing in Crespo v. Mogul, 151 SCRA 462 [1987] which bars the DOJ from taking
cognizance of an appeal, by way of a petition for review, by an accused in a criminal case
from an unfavorable ruling of the investigating prosecutor. It merely advised the DOJ to,
as far as practicable, refrain from entertaining a petition for review or appeal form the
action of the prosecutor, when the Complaint or Information has already been filed in
Court (Marcelo v. Court of Appeals, 235 SCRA 39 [1994]). Reiterated in the case of
Community Rural Bank of Guimba v. Talavera, 455 SCRA 34 [2005]).

5. Petitioners were not barred from appealing from the resolution holding that only homicide
was committed, considering that their complaint was for murder. By holding that only
homicide was committed, the Provincial prosecutors Office of Pampanga effectively
dismissed the complaint for murder. To rule otherwise would be to forever bar redress
of a valid grievance, especially where the investigating prosecutor demonstrated what
unquestionably appeared to be unmitigated bias in favor of the accused (Dimatulac v.
Villon, 297 SCRA 679).

6. A motion for reinvestigation on the ground of newly discovered evidence must be filed
before the Secretary of Justice rules on an appeal form a resolution in a preliminary
investigation (Community Rural Bank of Guimba v. Talavera, supra. )

7. The Resolution of the DOJ Secretary is appealable administratively to the Office of the
President where the offense charged is punishable by Reclusion Perpetua (de Ocampo v.
Secretary of Justice, G.R. No. 147932, Jan. 25, 2006 citing Memo. Circular No. 58, citing
Dee v. CA, 238 SCRA 254).

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PART XI. MISCELLANEOUS MATTERS

I. HOLD DEPARTURE ORDER AGAINST ACCUSED PERSONS

To ensure that those accused of criminal offenses will not evade prosecution and
punishment by leaving abroad during the pendency of criminal proceedings, trial prosecutors
are directed, pursuant to DOJ Circular No. 38 dated 15 August 1990, to move for the issuance
by the court of a Hold Departure Order (HDO) (please refer to NPS Sample Format C on p.
294 of this Manual) against the accused and for the Bureau of Immigration to implement the
same in the following cases:

1. Violation of PD 1866, as amended by RA 8294, codifying the laws on illegal/unlawful


possession, manufacture, dealing in, acquisition or disposition of firearms,
ammunition and explosives;

2. Crimes against public order (e.g. rebellion, sedition, etc.) defined and penalized in the
Revised Penal Code

3. Violations of RA No. 6435, The Dangerous Drugs Law, as amended (now RA 9165
otherwise known as the Comprehensive Dangerous Act of 2002);

4. Violation of RA No. 6539, The Anti-Carnapping Law;

5. Violations of Secs. 3601 to 3603, inclusive, and Secs. 3605 to 3610, inclusive of the
Tariff and Customs;

6. Bank frauds against public treasury and other crimes involving economic sabotage.

II. CANCELLATION OF TRAVEL DOCUMENTS

In cases where the accused has jumped bail and filed to another country, the trial
prosecutor shall immediately report (please refer to NPS Sample Format D-1 on p. 296 this
Manual) to the Chief State Prosecutor/Regional State /Provincial/City Prosecutor who shall,
with the approval of the Secretary of Justice (please refer to NPS Sample Format D-2 on p.
297 of this Manual), make appropriate representations with the Department of Foreign
Affairs for the cancellation of the accuseds passport and other travel documents so as to make
the accused an undocumented alien in the host country and thereby made subject to
deportation and is being considered as a fugitive from justice.

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III. HANDLING OF CRIMINAL COMPLAINTS FILED AGAINST PUBLIC
OFFICERS AND EMPLOYEES

In addition to DOJ Circular No. 26 dated July 3, 2008 (please refer to Appendix
G on p. 313 of this Manual), the following guidelines shall also be observed in the
investigation and prosecution of cases against public officers and employees pursuant to
OMB-DOJ Circular No. 95-001, series of 1995, to wit:

1. Preliminary investigation and prosecution of offenses committed by public officers


and employees in relation to their office, whether cognizable by the Sandiganbayan or
the regular courts and whether filed with the Office of the Ombudsman or with the
office of the Provincial/City Prosecutor shall be under the control and supervision of
the Office of the Ombudsman.

2. Unless the Ombudsman, under its constitutional mandate, finds reason to believe
otherwise, offenses which are not in relation to office and cognizable by the regular
courts shall be investigated and prosecuted by the Office of the Provincial/City
Prosecutor which shall rule thereon with finality.

3. The preparation of the Information shall be the responsibility of the Investigating


Prosecutor who conducted the preliminary investigation. The resolution
recommending prosecution, together with the duly accomplished Information, shall
be forwarded to the appropriate approving authority.

4. Towards the effective monitoring of all investigations and prosecution of criminal


offenses against the public officers and employees, the Offices of the Provincial/City
Prosecutor shall submit to the Office of the Ombudsman a monthly report of all
complaints filed with their respective offices against public officers and employees.

IV. NOTIFICATION OF PROSECUTOR OF THE FILING OF AN APPLICATION


FOR PROBATION

The court shall notify the trial prosecutor of the filing of an application for the grant
of probation filed by a defendant after conviction and sentencing but before service of
sentence (Sec. 4, PD 968, as amended by PD 1527).

A. COMMENT ON APPLICATION FOR PROBATION

The trial prosecutor shall submit his comment to the application for
probation within ten (10) days from receipt of the notification of the filing of
said application (Sec. 4, PD, as amended, supra.).

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B. RELEASE OF APPLICANT FOR PROBATION

Pending resolution of the application for probation, the accused may be


released on temporary liberty under his bail in the criminal case. In case no
bail was filed or if the defendant is not capable of filing one, the court may
release the defendant on recognizance to the custody of a responsible member
of the community who shall guarantee his appearance whenever required by
the court (Sec. 5, ibid.).

C. OBJECTION TO GRANT OF PROBATION

The trial prosecutor shall object to the application for the grant of probation
in the following instances:

1. If the defendant fails to comply with any of the following criteria for the
grant of probation:

a. The offender is in need of correctional treatment that can be


provided most effectively by his commitment to an institution; or

b. There is undue risk that during the period of probation, the offender
will commit another crime; or

c. Probation will depreciate the seriousness of the offense committed


(Sec. 8, PD 968).

2. If there is no post-sentence investigation conducted by a probation officer


(Sec. 5, ibid.);

3. If the application is filed after an appeal from the conviction is


perfected(Sec. 4, ibid.) or,

4. If the applicant is one

a. Sentenced to more than six (6) years and one (1) day;

b. Convicted of an offense against the security of the state under the


Revised Penal Code, to wit:

1. Art. 114 (Treason);

2. Art. 115 (Conspiracy and proposal to commit treason);

3. Art. 116 (Misprision of treason);

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4. Art. 117 (Espionage);

5. Art. 118 (Inciting to war and disloyalty in cases of war;

6. Art. 119 (Violation of neutrality;

7. Art. 120 (Corresponding with hostile country);

8. Art. 121 (Flight to enemys country);

9. Art. 122 (Piracy in general and mutiny on the high seas);

10. Art. 123 (Qualified piracy)

11. RA 9165 when applicable

c. Who has been previously convicted by final judgment of an offense


punishable by imprisonment of not less than one (1) month and one
(1) day and/or a fine of not more than Two Hundred Pesos
(Php200.00);

d. Who has once been probation under Presidential Decree No. 968
(Sec. 9, PD 968).

D. HEARING FOR THE REVOCATION OF PROBATION

In case one who is placed on probation is arrested for a serious


violation of the conditions of probation and brought before the court for a
hearing of the violation charged, the prosecutor shall represent the State in
said hearing if the revocation is contested. (Sec. 15, ibid.).

The defendant may be admitted to bail pending such hearing. In


such a case, the provision regarding release on bail of persons charged with a
crime shall be applicable to the defendant (Sec. 15, ibid., as amended by PD
1257)

V. PROCEDURE IN CASES INVOLVING CHILDREN

A. INQUEST PROCEEDINGS

1. If the Child is the Complainant

The presence of the child during the inquest proceedings shall not be
required unless his statement is found wanting in material or substantial details

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and it is considered necessary to have him further examined, in which event the
inquest prosecutor shall:

a. Give the case first priority;

b. Have the proceedings conducted as far as practicable in the Provincial/City


Prosecutors Office during regular office hours;

c. Conduct the examination of the child in the presence and with the
assistance of his/her parents, guardian, custodian and/or authorized
representative;

d. Ensure against undue and sensationalized publicity, especially where the


charge involves a crime against chastity (please refer to Appendix H on
Guide for Media Practitioners on the Reportage of Childrens Cases on p.
316 of this Manual);

e. See to it that the child is not subjected to any form of harassment or undue
influence from any party, particularly in cases where the alleged offender
is the childs parents, guardian, custodian, or one who has official, moral,
social or financial ascendancy over the child;

f. Take down the name, address, age and date of birth of the child, as well as
the name and address of the childs parents, guardian or custodian, and
reflect the same in the record of the case/proceedings; and

g. Not to countenance the withdrawal/dismissal of the case in the course of


the inquest proceedings unless made with the express conformity or
consent of the child and the latters parent/s, guardian, custodian or
authorized representative. In case of conflict, the childs wish or decision
shall prevail.

2. If the Child is the Suspect

The inquest prosecutor shall determine the age of the child on the basis of:

a. Documentary proof such as, but not limited to, birth certificates, baptismal
certificates, school record, dental chart, etc.;

b. Testimony of parent/guardian if not controverted; or,

c. Physical appearance of the child.

If the child is fifteen (15) years of age or under, the complaint shall be
dismissed immediately.

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If the child is over fifteen (15) years but under eighteen (18) years of
age, the inquest prosecutor shall determine whether or not the former acted with
discernment in committing the act complained of and if he finds that the child did
not act with discernment, he shall:

1. Immediately prepare a written report of his findings, recommending therein the


dismissal of the case and the immediate release of the child from custody;

2. Submit the same to the Provincial/City Prosecutor or the Chief of the Inquest
Division, as the case may be, for appropriate action; and

3. Pending approval/disapproval of his recommendation, cause the child to be placed


under the custody of the DSWD or other authorized person or entity;

If the inquest prosecutor finds that the child acted with discernment, he
shall proceed in accordance with the rules and procedure established by RA 9344,
otherwise known as the Juvenile Justice and Welfare Act of 2006.

3. Guidelines in the Conduct of All Inquest Proceedings Involving a Child:

The inquest prosecutor shall:

a. As far as practicable, conduct the proceedings and assisted by the parents,


guardian, custodian and/or authorized representative;

b. See to it that the child is accompanied and assisted by the parents, guardian,
custodian and/or authorized representative;

c. Ensure that the child is provided with competent legal assistance;

d. Make sure that the child is not co-mingled with adult detainees in one and the same
detention cell;

e. Take care that the child is not subjected to any form of coercion, harassment or
undue influence from any party wielding parental, custodial, official, moral, social
or financial ascendancy over the child;

f. In no case employ any form of deceit or false promises during the investigation
process; and,

g. Ensure the case/proceedings against undue and sensationalized publicity.

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The inquest prosecutor shall reflect in the record of the case/proceedings the name,
identity and address, age and date of birth, of the child as well as the name and address
of the parent/s, guardian, custodian and/or authorized representative.

B. PRELIMINARY INVESTIGATIONs

The prosecutor shall conduct a preliminary investigation only in the following


instances:

When the child does not qualify for diversion;

When the child, the parent or guardian does not agree to diversion;

When diversion is not appropriate for the child, after considering the assessment and
recommendation of the social worker; and

When the child fails to comply with the terms and conditions of the contract of diversion.
(Sec. 26, chapter 2, RA 9344)

Upon serving the subpoena and the affidavit of complaint, the prosecutor shall
notify the Public Attorneys Office (PAO) of such services as well as personal
information and place of detention of the child (Sec. 33, chapter 3, RA 9344).

1. If the child is the victim

The presence of the child during the preliminary investigation shall not be
required. Where it is considered necessary that the child be summoned for
clarificatory questioning, the investigating prosecutor shall:

a. Conduct the examination of the child in the presence and with the assistance of
his/her parent/s, guardian, custodian and/or authorized representative or social
worker;

b. Ensure the case and/or the proceedings against sensationalism and undue
publicity, especially where the charge involves the commission of a crime against
chastity;

c. See to it that the child is not subjected to any form of harassment or undue
influence from any party, particularly in cases where the offender is the parent/s
guardian, or custodian, or one who has official, moral, social or financial
ascendancy over the child; and,

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d. Make sure that the name, address, age and date of birth of the child, as well as the
name and address of the parent/s, guardian or custodian are duly reflected in the
record of the case.

2. If the child is the respondent

In the course of the preliminary investigation, all summons, subpoenas and


notices shall be served on or sent to the child through the parent/s, guardian,
custodians, or authorized representative.

The presence/attendance of the child during the preliminary investigation


proceedings shall not be required unless it is considered necessary for clarificatory
questioning, in which case, the Investigating Prosecutor shall:

a. Conduct the examination of the child in the presence of the parent/s, guardian,
custodian and/or authorized representative or Local Social Welfare Development
Officer (LSWDO), and with the assistance of a competent legal counsel;

b. See to it that the fundamental rights of the child are fully protected and
safeguarded;

c. Take care that any party wielding parental, custodial, official, moral, social or
financial ascendancy over the child does not subject the latter to any form of
coercion, harassment or undue influence

d. Ensure the case/proceedings against undue and sensationalized publicity.

e. Make sure that the name, address, age and date of birth of the child, as well as the
name and address of the parent/s, guardian or custodian are duly reflected in the
record of the case.

Confidentiality of all records should always be maintained.

C. PROTECTIVE CUSTODY OF THE CHILD

The child shall be placed under the protective custody of the Social Welfare and
Development or other accredited NGOs pending inquest and/or preliminary investigation
proceedings.

D. TERMINATION OF INQUEST/PRELIMINARY INVESTIGATION

Upon the termination of the inquest/preliminary investigation proceedings, notice


of the action taken on the case by the inquest/preliminary investigating officer shall be
given to the child victim, the child in conflict with the law and their parent/s guardian,
custodian or authorized representative.

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VI. PROCEDURE INVOLVING VICTIMS OF TRAFFICKING IN PERSONS AND
VIOLENCE AGAINST WOMEN AND THEIR CHILDREN

The procedures for conducting the inquest proceedings and preliminary investigations
prescribed in this Manual shall be applied in cases involving trafficking in persons and violence
against women and their children. In addition, the following performance standards for
prosecution services developed by the DOJ and the NCRFW shall be observed:

A. PRELIMINARY INVESTIGATION

The prosecutor shall make sure that the complaint is informed of the rights under
RA 9208 and RA 9262, the legal procedures on preliminary investigation, the crimes charged and
the benefits under the witness protection program for trafficking cases and victims compensation
program.

GUIDELINES:

1. The complainant is informed that she can request for a female prosecutor or a prosecutor
she is comfortable with and if so requested, the complainant is provided with one.

2. The complainant is interviewed in a gender-sensitive manner and the terms to be used


should be gender-neutral.

3. Examination of the victim is conducted in a gender-sensitive manner.


Prosecutors should have the following attitudes:
Accepting and non-judgmental
Sincere
Patient and understanding
Emphathic
Committed to observing and
Safeguarding confidentiality

4. The prosecutor should be open and encouraging in asking questions.

5. The interview shall be done behind closed doors in a private environment where
confidentiality is assured and the complainants level of comfort is considered.

6. The prosecutor shall refer the complainant for medical and neuropsychological
examination for possible health problems (e.g. malnutrition, STD, signs of rape, bruising,
broken bones, critical illness, post-traumatic stress disorders).

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7. All case-related documentation are properly obtained, reviewed and kept confidential.

8. The facilities used during the interview should be safe to ensure confidentiality:

a. A specific room is assigned for interviewing complainants and witnesses.

b. The interview rooms are secured, i.e. locked to ensure privacy.

c. The room contains gender-neutral furnishings, comfortable chairs, a table, and


documentation equipment such as a computer, a recorder or a typewriter.

9. The prosecutor shall not allow the media to again access to any information regarding the
victim/survivor. (An adult victim, however, may choose to speak with the media,
preferably with the assistance of her counsel.) the prosecutor does not disclose the name
and personal circumstances of both parties or any other information that might reveal
their identity to the media or the public, or take any action that might compromise their
privacy.

10. The prosecutor shall conduct the interview in a language understood by the complainant,
with sensitivity to the ordeal she is facing, and employ creative tools for investigation.

11. The prosecutor should be capable of determining whether or not the complainant needs
other support services for the investigation or litigation of the case.

12. A trained counsel or/social worker should be present during the interviews, if available, to
support the victim/survivor.

13. The preliminary investigation should be terminated and resolved in the earliest possible
time.

14. The complainant should be notified of the results of the case.

B. EVIDENCE GATHERED/BUILT-UP BY THE LAW ENFORCER; NEED TO CHECK

The prosecutor, as far as practicable, should check the conduct of the surveillance needed
to support the filing of a case (police/NBI agencies/investigators conduct the necessary
surveillance for sex trafficking cases. e.g. in massage parlors, bar strips, modeling studios, escort
services).

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C. PROSECUTION GUIDELINES:

1. The Speedy Trial Act should be strictly observed.

2. The Rules on Examination of Child Witnesses should be applied in handling VAWC and
trafficking cases involving children. (please refer to the Manual for Prosecutors on
Handling Child-Related Cases)

3. As far as practicable, the trial of the case should be handled by one and the same
prosecutor.

4. Confidentiality of the trial should be maintained.

5. The complainant should be accompanied by or referred to a trained counselor/social


worker in the course of the trial, if necessary.

VII. PROCEDURE FOR THE FILING OF A PETITION FOR CERTIORARI THROUGH


THE OFFICE OF THE CHIEF STATE PROSECUTOR

A. WHEN TO FILE A PETITION FOR CERTIORARI

1. The court issued an adverse ruling without or in excess of jurisdiction or with grave
abuse of discretion amounting to lack or excess of jurisdiction.

2. There is no appeals or any plain speedy or adequate remedy in the ordinary course
of law.

B. COVERAGE

Only petitions for certiorari under Rule 65 of the Revised Rules of Court which are
to be filed before the Supreme Court or the Court of Appeals may be acted upon by the
Office of the Chief State Prosecutor.

C. PERIOD TO FILE THE PETITION

The petition shall be filed with the Supreme Court of the Court of Appeals not later
than sixty (60) days from notice of the judgment order/resolution. In case a motion for
reconsideration or new trial is timely filed, whether such motion is required or not, the
sixty (60) day period shall be counted from notice of the denial of said motions.

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D. ACTION TO BE TAKEN BY THE TRIAL PROSECUTOR

1. Draft petition clearly stating the facts of the case, and the law and jurisprudence applicable
in support hereof. The petition shall contain a verified statement of the date when notice
of the judgment, order or resolution subject thereof was received, when a motion for
reconsideration, if any, was filed and when notice of the denial thereof was received.

Legible duplicate original or certified true copy of the decision, judgment or


resolution or order subject of the petition for certiorari must be attached to the draft.

The certified true copy must be accompanied by a certification accomplished by


the proper clerk of court or by his duly authorized representative or by the proper officer
of the court, tribunal, board commission or office involved, or by his duly authorized
representative.

NOTE: Certification by the parties themselves, their counsel, or any other person
shall not be allowed.

NOTE: Photocopies, not originally certified, of the alleged certified true copies of
the decision of the trial court are not sufficient compliance.

Certification under oath must be appended to the draft petition stating that the
requesting prosecutor has not commenced any other action or proceeding involving the
same issued in the Supreme Court, the Court of Appeals, or any other tribunal or agency.

As far as practicable, a copy of the transcript of stenographic notes (TSN), case


record, trial brief outlining proceedings of case, documentary evidence certified copies of
decision to be elevated.

2. Forward the draft petition to the Office of the Chief State Prosecutor for evaluation within
fifteen (15) days from receipt of the assailed decision or order/judgment, with a request
that the same be endorsed to the Office of the Solicitor General.

E. ACTION OF THE CHIEF STATE PROSECUTOR

1. If the Chief State Prosecutor finds no merit in the request to file a petition for certiorari,
he denies the request and informs the head of office of the requesting trial prosecutor of
such denial.

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2. If he finds merit in the petition, he shall endorse the draft petition together with the
attachment within ten (10) days from receipt of the draft petition, to the Office of the
Solicitor General for appropriate action.

VIII. HANDLING OF ENVIRONMENTAL CASES

A. REVISED FORESTRY CODE (PD 705)

1. EVIDENCE REQUIRED

a. For the first and second modes of violation of Sec. 77 (Cutting, gathering
and/or collecting timber or other forest products without license), the
following pieces of evidence are crucial:

Affidavit of the apprehending officer;

Proof that the accused failed to show cutting license or permit when
apprehended and asked to present the authority to cut;

Survey of area using Land Classification maps as reference to show whether


the prohibited act was done inside forest land, alienable or disposable land
or private land (Close traverse duly conducted by a CENRO Survey Officer);

The logs, timber, flitches or lumber that were apprehended;

Conveyance, equipment, machineries, implements or tools, if any;

Identity and affidavit of apprehended violators.

b. For violation of Sec. 78 (Unlawful occupation or destruction of forest lands


and grazing lands):

Proof of failure to present license agreement, lease, license or permit to enter


and occupy forest land or grazing lands when accosted;

Affidavit of the investigating forest officer;

Survey maps or area occupied and destroyed using Land Classification map
or reference to prove that the area is inside forest land or grazing land;

Inventory and tally sheet, stand and stock table of timber or forest products
destroyed and the corresponding forest charges to be used as basis in
imposing penalty;

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Damaged forest land due to indiscriminate setting on fire of forest land by
the violator;

Damaged grazing land due to indiscriminate setting on fire of grazing land


by the violator;

The following documents are likewise useful:

Proof of failure to present license agreement, lease, license or permit to


occupy grazing land when apprehended;

Proof that the violator introduced within occupied areas domestic plants
other than natural vegetation or trees or other vegetation;

Possession by the violator at the time of the apprehension of instruments,


equipment and tools such as power saws, hand saws, bolos and digging tools
such as shovels, grub shoes, rakes, etc.;

Fallen trees, logs, lumber, flitches and other woody parts of damaged
vegetation; and

Construction of shelter of light materials within the area or site of


occupation or kaingin.

c. For violation of Sec. 80 (Pasturing livestock), the following are required:

Investigation report of the forest officer showing failure of the accused to


present authority to graze livestock;

Survey map of the area ulitized for unauthorized grazing;

Inventory of livestock grazed

d. For violation of Sec. 82 (Survey by unauthorized persons), the following are


important:
Implements and instruments used in the survey of the area involved;
Survey report and sketch plan of the surveyed area by the investigating
officer;
Land Classification Map showing that the area is classified as forest land

e. For violation of Sec. 88 (Sale of Wood Products), the following are important:

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The logs, lumber or forest products subject of the sale;
Scale report;
Sales Invoice

2. POINTERS

it is suggested that the confiscated forest/wood products under court litigation


should be allowed for disposal to save their economic value. Conformably, a motion should
be made with the court for an appropriate ruling such that the confiscated forest/wood
products be sold as soon as their presentation as evidence is completed. The proceeds
thereof will be deposited/held in escrow for collection by the prevailing party.

The prosecutor should, before the confiscated forest/wood products are sold, cause
the photographing of the same. Photographs of the same. Photographs should be certified
at the back thereof by the DENR officer and appended to the record of the case.

For repeat violators of Sec. 77 (Cutting, gathering and/or collecting timber or other
forest products without license), such fact should be alleged as an aggravating
circumstance in the information considering that penalties for such violation are those
provided for under Articles 309 and 310 of the Revised Penal Code. Thus, applying Article
10 of the Revised Penal Code and the ruling of the Supreme Court in PP vs Martin S. Simon
(GR No. 93028, July 29, 1994; 234 SCRA 555), such circumstance of recidivism or
reiteracion should be alleged.

The prosecutor should also consider the outcome of the administrative


adjudication proceedings for violation of Sec. 77 in determining probable cause. The
prosecutor may request for additional evidence obtained during administrative
adjudication proceedings.

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B. TOXIC SUBSTANCES AND HAZARDOUS WASTE ACT (RA 6969)

1. EVIDENCE REQUIRED

a. Important piece of evidence Waste Transport Record (DAO No. 2004-36) with:

Generator information (includes the classification and quantity of each hazardous


waste, methods of treating hazardous waste, methods of treating hazardous waste,
special instruction)

Transporter information (information about the common carrier)

Results of sampling (Laboratory Analyses) signed by chemists from the DENR-EMB


or DENR-accredited laboratories.

Report on the inspection and monitoring of premises prepared by the proper


authorities (EMB-Regional Office and signed by the Regional Director).

C. PEOPLES SMALL SCALE MINING ACT (RA 7076)

1. EVIDENCE REQUIRED

Technical or office generated reports, testimonial evidence of the concerned office


personnel, and pertinent testimonies of other persons in the community, as sufficient
bases for the finding of probable cause for the purpose of filing and prosecuting the
case even in the absence (usually intentional) of the accused.

D. PHILIPPINE MINING ACT (RA 7942)

1. EVIDENCE REQUIRED

a. for violation of Sec. 103 (Theft of Minerals), the following documents should be
attached to the complaint:

Sworn statement of the apprehending/arresting office (MGB Form No. 12-2);


Affidavits of witnesses, if any (MGB Form No. 12-3)
Copy of the seizure receipt;
Photographs showing the minerals/mineral products seized including the tools,
equipment and conveyance used in the commission of the offense; and
Other supporting papers/evidence as the court may require.

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2. POINTERS

a. For violation of Sec. 102 (Illegal Exploration), it should be made clear that the
consent of officials of the local government unit, particularly the barangay captains
and mayors, and tribal chieftains is not a defense.

b. Claim owners or MPSA holders found to have extracted minerals outside their mining
areas should be charged with violation of Sec. 110 (Other Violations) instead of Sec. 103
(Theft of Minerals) since they should not be treated similarly with those who have no
contract or permit at all.

c. Documents purporting to be business permits attached as annexes to counter-affidavits


should not be given any weight in the determination of whether or not the respondent
has valid mining permits.

d. Investigation reports prepared by the Regional Office of the MGB should be accorded
greater significance as these enjoy the presumption of regularity.

1. Secs. 104 (Destruction of Mining Structures), 105 (Mines Arson) and 106 (Willful
Damage to a Mine) would be applicable if the motive for the commission of the prohibited
acts is plain extortion. If perpetrated by insurgent groups in furtherance of their goal to
overthrow or destabilize the government, then rebellion or sedition, as the case maybe,
would be the more appropriate charge. Also, if all the three offenses are committed in a
single occasion, Sec. 105 should absorb the acts described in the two other Sections.

2. Sec. 110 (Other Violations) should include violations of the following provisions of the
Mining Act: Secs. 54 (Mineral Trading Registration); 55 (Mineral Processing Permit),
64 (Mine Labor); 65 (Mine Supervision); and 74 (Right to Possess Explosives).
Additionally, violations of certain provisions of the IRR of the Mining Act (DAO No. 96-
40, as amended), particularly Sec.s 172 and 179, refer to the penal provisions of the Mining
Act.

E. CLEAN ARI ACT (RA 8749)

1. POINTER

It should be noted that an order from the Pollution Adjudication Board (PAB) directing
the filing of a criminal case is a condition precedent.

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F. ECOLOGICAL SOLID WASTE MANAGEMENT ACT (RA 9003)

1. POINTER

The applicable procedures in criminal prosecution for violation of RA 9003 is Rule


XIX (Administrative and Enforcement Procedures) of DAO No. 2001-34 (IRR of RA 9003).

G. WILDLIFE CONSERVATION AND PROTECTION ACT (RA 9147)

1. EVIDENCE REQUIRED

a. Useful pieces of evidence in the prosecution of violators of Sec. 27, particularly the killing
of wildlife:

Certificate from the DENR or Protected Areas and Wildlife Bureau (PAWB) that
the animal is a wildlife; and
Necropsy report from a veterinarian

b. On inflicting injury:

Certification from the DENR or PAWB that the animal is a wildlife; and
Certification from a licensed veterinarian that the concerned wildlife, after the
infliction of the injury, is no longer capable to utilize its reproductive system.

c. Dumping of waste products detrimental to wildlife:

Certification from a licensed veterinarian that the dumped waste products are
detrimental to the life of the wildlife found or living in the area; and
Certification from the DENR that the place where the wastes were dumped is a
critical habitat in accordance with the NIPAS Act, or designated as such in
accordance with Sec. of RA 9147.

d. Trading of wildlife:

Certification form the DENR as to the classification of the concerned wildlife; and
Certification from the DENR that no permit was given to violator for the concerned
activity.

e. Transporting of wildlife:

Certification from the DENR as to the classification of the concerned wildlife; and
Certification from the DENR that no corresponding permit was given to the
violator for the concerned activity.

f. Maltreating and/or inflicting other injuries not covered by the preceding paragraph:

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Certification from the DENR as to the classification of the concerned wildlife; and
Affidavit of a witness who saw the act of maltreatment or inflicting injury to the
wildlife.

g. Squatting or otherwise occupying any portion of the critical habitat:

Certification from the DENR or PAWB that the place where the concerned act is
done is within a critical habitat in accordance with RA 7586 or the NIPAS Act or
designated as such in accordance with Sec. 23 of RA 9147.

h. Mineral exploration and/or extraction, burning, logging, and quarrying:

Certification from the DENR or PAWB that the place where the concerned act is
done is within a critical habitat in accordance with RA 7586 or the NIPAS Act or
designated as such in accordance with Sec. 23 of RA 9147.

i. Introduction, re-introduction, or re-stocking of wildlife resources:

Certification from the DENR that no permit was given to the violator for the
concerned activity.

j. Collecting, hunting, or possessing wildlife, their by-products and derivatives:

Certification from the DENR as to the classification of the concerned wildlife; and
Certification from DENR that no permit was given to the violator for the concerned
activity.

k. Gathering or destroying of active nests, nest trees, host plants, and the like:

Certification from DENR as to the classification of the concerned wildlife; and


Certification from the DENR that no permit was given to the violator for the
concerned activity.

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H. CHAINSAW ACT (RA 9175)

1. EVIDENCE REQUIRED

a. To establish the offense of selling, purchasing, re-selling, transferring, distributing or


possessing a chain saw without a proper permit:

Chain saw;
Deed of Sale, Sales Invoice, Official Receipt, Deed of Assignment, and other
pertinent documents;
Invalid or expired Certificate of Registration;
Affidavit of the apprehending/investigating officer.

b. To establish the offense of unlawful importation or manufacturing of chain saw:

Chain saw;
Import documents;
Certification from the DENR Registering Office that the importer or manufacturer
has no permit;
Affidavit of apprehending/investigating officer.
Prosecutors should be made aware that there is also an administrative adjudication
aspect, following DAO No. 97-32.

I. CLEAN WATER ACT (RA 9275)

1. EVIDENCE REQUIRED

a. Results of laboratory analysis of samples collected (a) analyzed within the period
described in order to protect the integrity of the findings; and (b) duly signed by the analyst
and the head of the laboratory division.

b. In cases involving the commission of other prohibited acts under Sec. 27, the complaint-
affidavit should be accompanied by the following documents:

Affidavit of witnesses as to the commission of the prohibited act;


Affidavit containing the admission made, if any, by the person complained of;
Proof of service of Notices of Violation (NOVs) and/or Invitations for Technical
Conference; and
Photographs and other documents that would establish the accuracy and veracity
of the statements made in the report.

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2. POINTERS

a. It should be noted that an order from the Pollution Adjudication Board (PAB) directing
the filing of a criminal case is a condition precedent.

b. Results of sampling (Laboratory Anaylses) must be signed by the chemists from the
DENR-EMB or DENR-accredited laboratories.

c. There must also be a report on the inspection and monitoring of premises prepared by the
proper authorities (EMB- Regional Office, signed by the Regional Director).

d. RA 9275 lacks provisions on the issuance of seizure receipts, particularly on subject vessels
containing hazardous/industrial wastes and other pollutants, which are caught in
Flagrante delicto and in the normal course of procedure. Also, there is no particular
storage facility fo rhte said wastes and other pollutants while in custodial legis.

IX. PROSECUTION OF MONEY LAUNDERING CASES

A. GENERAL RULES

1. Any proceedings relating to money laundering and the unlawful activity shall be given
precedence over the prosecution of an offense or violation under the Anti-Money
Laundering Act (AMLA) (RA 9160, as amended by RA 9194) without prejudice to the
application ex-parte by the Anti-Money Laundering Council (AMLC) to the Court of
Appeals for a freeze order with respect to the monetary instrument of property involved
therein and resort to other remedies provided under the AMLA, the Rules of Court and
other pertinent laws and Rules.

2. Trial for the money laundering offense shall proceed in accordance with the Revised Rules
on Criminal Procedure.

3. Knowledge of the offender that any monetary instrument or property represents, involves
or relates to the proceeds of an unlawful activity or that any monetary instrument or
property is required and may be established by direct evidence or inferred from the
attendant circumstances.

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B. DUTIES OF THE PROSECUTOR

1. Upon receipt of the complaint filed by the AMLC pursuant to Sec. 7 (4) of the AMLA, the
prosecutor shall conduct the requisite preliminary investigation;

2. When there is a finding of probable cause to engender a well-founded belief that a money
laundering offense has been committed recommend for the filing of an Information before
the Regional Trial Court;

3. Once the filing of an Information in court has been approved by the head of office, prepare
for the trial for the money laundering offense in close coordination with the AMLC official
who file the complaint.

4. During the trial of the case, prove by evidence beyond reasonable doubt all elements of
every money laundering offense under Sec. 4 of the AMLA, including the element of
knowledge that the monetary instrument or property represents, involves or relates to the
proceeds of any unlawful activity. (Rule 6.6. of the Revised Implementing Rules and
Regulations of RA 9160 as amended by RA 9194).

No element of the unlawful activity, however, including the identity of the


perpetrators and the details of the actual commission of the unlawful activity, need be
established by proof beyond reasonable doubt since the elements of the offense of money
laundering are separate and distinct from the elements of the felony or offense
constituting the unlawful activity. (Rule 6.7., ibid.).

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Special Section on
Prosecuting Human Rights Violations
and Providing Available Remedies Therefor

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Special Section on
Prosecuting Human Rights Violations
and Providing Available Remedies Therefor

I. IN GENERAL

A. STRUCTURE

This special section on human rights will start by presenting a summative checklist
to guide a public prosecutor in dealing with cases of human rights violations - what the
requisites are for their successful prosecution and the alternative or cumulative legal
remedies that can be availed of.

The first part of this section will identify the particular human rights violation in
focus, then proceed to outline how the Public Prosecutor can deal with it using available
remedies in substantive and procedural criminal law.

The second part of this section will identify generic remedies available under
substantive law that may be resorted to and employed in the process of seeking redress to
human rights violations. However, since these provisions are few and perform only a
largely compensatory function, we have to turn to the larger field of substantive and
procedural criminal law to be able to fully address the consequences of the violation and
provide the victim with the full coterie of remedies designed to vindicate the rights
violated.

B. SUMMATIVE CHECKLIST

1. STEP ONE. How do you know that a human rights violation has been
committed?

a. LOOK AT THE LEGAL BASES. The enumeration of civil and political rights
and liberties can be found in the Constitutions Bill of Rights and the Civil
Codes Article 32.

If the violator is an agent of the State, then the Bill of Rights is more
applicable, because the limitations set forth therein are addressed to
the exercise of governmental powers and prerogatives.

For private parties violating human rights, Article 32 will be more


appropriate.

b. LOOK AT THE CIRCUMSTANCES OF THE CASE. One of the more basic


characteristics of human rights is that they are of such fundamental
character that anyone can readily acknowledge their inherence in every

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human person; as such, anyone can also readily recognize when a violation
thereof has been committed. Some of the defining character of human
rights violations are:

They involve a wanton violation of the integrity of the human


persons body.

For example, physical injuries inflicted on a person are undoubtedly on


a lower plane compared to acts of torture where the intent to inflict pain
is supplanted by the intent to cause intense physical suffering, trauma,
and agony beyond the limits of human tolerance. Anyone can readily
recognize the difference in the quality of evil that impels a person who
merely intends to injure and a person who takes advantage of the
fragility and limits of what the human body can take in order to totally
subdue the will of another.

They involve an infliction of intense psychological anguish,


emotional suffering, and moral helplessness.

For example, families of victims of enforced disappreance had to


contend with the lifelong agony of not knowing what became of their
loved ones, and not even having the opportunity to give them a decent
burial. This kind of suffering adds an entirely new layer of evil to what
would otherwise be a plain case of deprivation of life and liberty.
Deliberately withholding information regarding the whereabouts of a
person involuntarily disappeared makes the loss of a loved one assume
an entirely different dimension.

They deviate from universally-accepted minimum standards of


treatment of every human person.

Society may be divided in the issue of the imposition of the death


penalty in the criminal justice system, but everyone will agree that
nobody deserves to die in an excruciatingly painful manner; and the
relatives of the dead should have the opportunity to bury their dead
with dignity. When a wrongful act deprives a human person of what is
due him/her according to the minimum standards inherently ingrained
in everyones sense of humanity, then there is an assault against
fundamental human rights.

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2. STEP TWO. How do you prove that there has been human rights
violation?

Medico-legal reports (for physical trauma)


Autopsy reports (for causes of death and internal/external injuries sustained
immediately prior to, or contemporaneous with, the point of death)
Psychiatric and psychological evaluations (for mental, emotional, and
psychological trauma on the part of the victim and his/her relatives)
Affidavits of witnesses (focusing on the circumstances that would qualify an act
as a human rights violation, as discussed above)

3. STEP THREE. What do you do about it? Determine whether

a. THE HUMAN RIGHTS VIOLATION IS CONTINUALLY BEING


PERPETRATED. For example:

In the case of a person involuntarily disappeared and whose fate and


whereabouts are still unknown; or
In the case of a person whose life and liberty is under threat by reason of
his/her political beliefs; or
In the case of a person currently under the custody of State authorities
under circumstances that would warrant a well-endangered fear of
his/her being subjected to torture or other forms of suffering

In these cases, the urgent need is to gather information regarding the


condition or whereabouts of the person, so that the appropriate remedy can be
availed of:

Avail of the right of visitation of, and conference with, counsel that is
granted to every detainee or person under custodial investigation.
Torture or other forms of persecution can speedily be discovered and
addressed through this means.
Utilize inquest proceedings so that violations of human rights can
already be disclosed early on.
Bring to the attention of the court actual knowledge, or well-founded
suspicion of torture or other forms of human rights violations. The
courts, under Administrative Matter No. MTJ 90-4001 have the positive
duty to proceed with caution during trial whenever allegations of
violations of the fundamental rights of the accused are brought to their
attention.
Gather information through the usual channels of inquiry, taking into
account whether or not information being sought is:

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1. Open to public access, or
2. Privileged, or
3. Withheld from the public by reason of national security, etc.

If this fails, or if information leading to the location of a person or


ascertainment of his/her condition is privileged or classified, then avail
of the Writ of Habeas Data, mindful of the satisfaction of the requisites
regarding:

1. Proper parties,
2. Required allegations, and
3. Remedies prayed for

If information-gathering discloses the whereabouts of a person, or if


such is already known at the outset, or if the source of the threat to ones
life or liberty has been clearly determined, then an aggrieved party can:

Compel officials having custody of the person to bring such person to


court so that his/her condition can be examined and his/her detention
can be justified through a Writ of Habeas Corpus
Compel the State to extend such protection as may be adequate to
safeguard his/her rights through a Writ of Amparo

b. THE HUMAN RIGHTS VIOLATION HAS ALREADY BEEN


PERPETRATED.

For example:

In the case of a person who has already been subjected to torture; or


In the case of a person who was involuntarily disappeared and
subsequently found to have been killed through salvaging; or
In the case of persons who were forced to leave their homes en masse
through intimidation and violence

In these cases, the paramount remedy is to seek redress for the violation
that has already been committed. This can be done through:

REMEDIES THAT EXPRESSLY RECOGNIZE HUMAN RIGHTS


VIOLATIONS. Although there are only few legal remedies that
specifically tackle an address human rights violations, they are
nonetheless effective because they directly acknowledge the existence
of a wrongful act that may be classified as a human rights violation. The
primary objective of these measures is indemnification for the resulting
damages arising from the violation. These are:

1. Action for damages under Article 32 of the Civil Code

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2. Claims under the Victim Compensation Act
3. In cases of torture or death of a suspected terrorist, an action for
criminal liability of a State official having custody over the suspected
terrorist under Sec. 25 of the Human Security Act

REMEDIES THAT INDIRECTLY RECOGNIZE HUMAN RIGHTS


VIOLATIONS. These are ordinary criminal actions involving felonies
that may be considered the closest equivalents of the human rights
violations discussed in this Manual. These human rights violation
torture, enforced disappearances, extralegal killings, and involuntary
displacement are yet to be legislated as felonies or crimes in
themselves. However, this does not mean that these violations cannot
be prosecuted; they can and should be prosecuted, only they have to be
couched in existing criminal law terms, provided all their elements are
obtaining.

For example:

1. The component felonies that may be equated to torture like


maltreatment of prisoners, serious physical injuries,
administration of injurious substance, mutilation, etc.
2. Equivalent felonies to enforced disappearance like arbitrary
detention and kidnapping
3. Felonies parallel to involuntary displacement like grave
coercion and expulsion

4. STEP FOUR. Is there a way forward?

a. MAKE HUMAN RIGHTS VIOLATIONS AKIN TO AGGRAVATING


CIRCUMSTANCES. The perpetration of felonies in a manner that qualifies
them to human rights violations is an act that deserves condemnation. The
proposition that perpetrators of such acts must be subjected to graver
penalties finds intuitive validity in the consciousness of well-meaning
individuals. However, penal laws do not operate in that manner. Laws must
be enacted to punish particular crimes, impose heavier penalties, or add to
the exclusive list of aggravating circumstances in the Revised Penal Code;
without them, there will be a violation of due process. This will not preclude,
however, the commencement of the practice among prosecutors and where
human rights violations are recognized at the outset, acknowledged
accordingly in the Information, and equated when possible to existing
aggravating circumstances.

For example:

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Nocturnal abductions (during which impunity is more or less secure)
preparatory to enforced disappearances can be considered aggravated by
nocturnity.
Involuntary displacements undertaken during the height of armed conflict or
hostilities can be considered aggravated when committed on the occasion of
a calamity or misfortune.
Liquidations and other salvagings on account of political persecution,
which often lead to extralegal killings, should be considered clearly as
products of evident premeditation because the plan and mode of such
attacks are almost always contemplated ahead of time.
If torture is conducted with the victims hands and feet tied (or where the
victim is physically restrained in any manner), or where the victim was
forcibly drugged, and if such torture is conducted by numerous people in
succession or simultaneously, would aggravate the felony by taking
advantage of superior strength and with means employed to weaken the
defense.
The prevalent practice of salvaging conducted in a swift manner, under
circumstances where the victim will be caught unaware and unable to defend
him/herself, is evidentiary of alevosia.
Murder involving physical and psychological torture (e.g. forcing the victim to
ingest human excreta, torturing the victim while naked, electrocution of the
genitalia) can rightfully be classified as aggravated by ignominy and/or
cruelty.

The ideal, of course, is for violation of human rights to somehow find its way to the
exclusive list of aggravating circumstances in the Revised Penal Code. However, while
such proposition still awaits legislative adoption, it has been shown that there are ways by
which the prosecutor can interject human rights violations in the consideration of the
nature of the felony and the gravity of the imposable penalty.

b. THE FACT THAT HUMAN RIGHTS VIOLATIONS HAVE BEEN


COMMITTED SHOULD BE REFLECTED IN THE INFORMATION.
An Information that is complete and correct in substance and in form will
not be invalidated simply because it supplied other information apart from
that usually seen in such processes. It is a vindication of human rights
violations where they are acknowledged and recognized in the Information,
for then the courts can be better apprised of the exact quality of evil that
attended the commission of the felony, beyond its essential elements.

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Consider the following:

That on or about the 8th day of April 2008, in the Municipality of Donsol,
Sorsogon, Philippines, and within the jurisdiction of this Honorable
Court, the said defendants, JOSEFO MERCADO and DEIMOS PERICLES,
and CRISPULO JUAN DE DIOS, conspiring, confederating and mutually
aiding each other, did then and there willfully, unlawfully and feloniously
tortured and killed VICENTE TONGOL through infliction of severe blows
by a blunt object to the head, electrocution of the genitals, tearing off of
the fingernails, and drowning, with treachery, known premeditation,
abuse of superior strength, and means employed to weaken the defense,
and as a result thereof, said VICENTE TONGOL slowly suffered intense
physical and psychological trauma until his death.

CONTRARY TO LAW.

Donsol, Sorsogon, Philippines, April 8, 2008.

While the above Information recites all the essential elements of murder, it also went
further to allege other facts that clearly paint the accurate picture of the felony that is,
through the violation of the fundamental human right not to be subjected to torture and
other cruel, inhuman, and degrading treatment. In those cases where the judge is given
enough latitude to pronounce the proper penalty to be imposed (as in the case of the
application of the Indeterminate Sentence Law), these facts can and should be given
adequate consideration.

II. PROSECUTING CASES OF TORTURE

A. BACKGROUND

Definition

Torture is defined in Blacks Law Dictionary as the infliction of intense pain to


body or mind for purposes of punishment, or to extract a confession or information, or for sadistic
pleasure. Torture, when committed, represents a direct and blatant violation of a persons human
right not to be subjected to cruel, inhuman, or degrading punishment, as well as to any physical
or psychological means that vitiate the free will. These human rights are enshrined in the Bill of
Rights (Art. III, Sec. 12, pars. 2, 3 and 4; Art. III, Sec. 19 pars. 1 and 2).

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B. DEALING WITH TORTURE UNDER SUBSTANTIVE LAW

1. Unconstitutionality

The first thing that a prosecutor must bear in mind is that torture is
unconstitutional. Article III, Sec. 12 (2), of the 1987 Constitution provides that no torture,
force, violence, threat, intimidation, or any other means, which vitiate the free will shall
be used against [a person under investigation]. Secret detention places, solitary,
incommunicado, or other similar forms of detention are prohibited.

Also, Article III, Sec. 19, of the 1987 Constitution provides that the employment
of physical, psychological, or degrading punishment against any prisoner or detainee or
the use of substandard or inadequate penal facilities under subhuman conditions shall be
dealt with by law.

It being unconstitutional, cases of torture are of overriding and compelling


significance and the State, acting through its agents, more particularly the prosecutor, has
an interest in seeing to it that allegations of torture are verified as early as possible.

2. Direct criminal prosecution for Maltreatment of Prisoners (Article 235,


Revised Penal Code)

a. Legal basis.

Under the Revised Penal Code, the prosecutor may proceed against perpetrators
of torture directly. The most parallel provision related to torture is Maltreatment
of Prisoners. A victim, if tortured while under custody of public officers as a
prisoner, can file a criminal action under Article 235, which punishes a public
officer who maltreats a prisoner either for the purpose of extracting a confession
or who oversteps the bounds of his/her authority over a prisoner on his/her
custody either by inflicting punishments not prescribed by regulations or by
inflicting prescribed punishments not prescribed by regulations or by inflicting
prescribed punishments but in a cruel or humiliating manner. For cases of torture
committed against persons under investigation, this is the most direct remedy.

b. Elements of the felony

1. Offender is a public officer or employee


2. He has under his charge a prisoner or detention prisoner

3. He maltreats such prisoner in either of the following manners:

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By overdoing himself in the correction of a prisoner or detention prisoner
under his charge, or

By overdoing himself in the handling of a prisoner or detention prisoner


under his charge, through:

o The imposition of punishment not authorized by the regulations;

o The infliction of punishments authorized by the regulations in a cruel


and humiliating manner;

o The maltreatment of such prisoners to extort a confession or to obtain


some information from the prisoner.

3. Separate and simultaneous criminal actions.

If the victim of torture is not a prisoner or where the alleged perpetrators are
unidentified (in which case their status as public officials cannot be established), then
torture can be proceeded against on a piecemeal basis. All the acts constituting torture
and all acts committed in the course of the act of torture can be prosecuted simultaneously.
Based on common experience, torture oftentimes involves the infliction of physical and
psychological suffering on the victim through various acts designed to break the victims
will and spirit so that he/she would accede to the demands of the torturers. As such,
torture can be prosecuted by filing any or all of the following actions, provided the
following requisite elements have concurred:

a. Mutilation (Art. 262, Revised Penal Code)

1. Intentionally mutilating another by depriving him, either totally or partially, of


some essential organ for reproduction; i.e.,:

There be a castration of organs necessary for generation, such as the penis or


ovarium; and
The mutilation is caused purposely and deliberately, that is, to deprive the
offended party of some essential organ for reproduction; or

2. Intentionally making other mutilation, that is, by lopping or clipping off any part
of the offended party, other than the essential organ for reproduction, to deprive
him of that part of his body.

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b. Serious, Less Serious, or Slight Physical Injuries (Art. 263, 265, and 266, Revised
Penal Code)

1. Serious Physical Injuries.

Committed by wounding; by beating; by assaulting; or by administering


injurious substance.
The injured person suffered any of the following:

o Becomes insane, imbecile, impotent or blind in consequence of the


physical injuries inflicted;
o Loses of the use of speech or the power to hear or to smell, or loses an eye,
a hand, a foot, an arm, or a leg; loses the use of any such member; or
becomes incapacitated for the work in which he was theretofore habitually
engaged, in consequence of the physical injuries inflicted;
o Becomes deformed; or loses any other member of his body; loses the use
thereof; or becomes incapacitated for the performance of the work in
which he was habitually engaged for more than 90 days in consequence of
the physical injuries inflicted;
o Becomes ill or incapacitated for labor for more than 30 days (but must not
be more than 90 days), as a result of the physical injuries inflicted.

2. Less serious Physical Injuries.

Committed by wounding; by beating; by assaulting; or by administering


injurious substance.
Offended party is incapacitated for labor for 10 days or more (but not more
than 30 days), or needs medical attendance for the same period of time;
The physical injuries must not be the same as those suffered under Serious
Physical Injuries

3. Slight Physical Injuries

Committed by wounding; by beating; by assaulting; or by administering


injurious substance
Suffered any of the following:

o Incapacitated the offended party for labor from one to nine days, or
required medical attendance during the same period;
o Any injury that is not serious enough to prevent the offended party
from engaging in his habitual work or require medical assistance;
o Ill-treatment of another by deed without causing any injury.

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c. Administering Injurious Substances or Beverages (Art. 264, Revised Penal Code)

1. Offender inflicted upon another any serious physical injury;


2. It was done by knowingly administering to him any injurious substance or
beverages or by taking advantage of his weakness of mind or credulity;
3. He had no intent to kill.

d. Rape (Art. 266, Revised Penal Code)

1. Rape by carnal knowledge

Offender is a man;
Offender had carnal knowledge of a woman;
Such act is accomplished under any of the following circumstances:

o By using force or intimidation


o When the woman is deprived of reason or otherwise unconscious;
o By means of fraudulent machination or grave abuse of authority; or
o When the woman is under 12 years of age or demented.

2. Object rape

Offender commits an act of sexual assault;


The act of sexual assault is committed by any of the following means:

o By inserting his penis into another persons mouth or anal orifice; or


o By inserting any instrument or object into the genital or anal orifice
of another person;
The act of sexual assault is accomplished under any of the following
circumstances:

o By using force or intimidation; or


o When the victim is deprived of reason or otherwise unconscious; or
o By means of fraudulent machination or grave abuse of authority; or
o When the victim is under 12 years of age or demented.

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e. Acts of Lasciviousness (Art. 336, Revised Penal Code)

1. That the offender commits any act of lasciviousness or lewdness.


2. That the act of lasciviousness is committed against a person of either sex;
3. That it is done under any of the following circumstances:

By using force or intimidation; or


When the offended party is deprived of reason or otherwise unconscious;
When the offended party is under 12 years of age or demented.

f. Kidnapping and Illegal Detention

1. Kidnapping and Serious Illegal Detention (Art. 267, Revised Penal Code)

Offender is a private individual;


He kidnaps or detains another, or in any other manner deprives the latter of
his liberty;
The act of detention or kidnapping must be illegal;
In the commission of the offense, any of the following circumstances is
present:

o The kidnapping lasts for more than 3 days;


o It is committed simulating public authority;
o Any serious physical injuries are inflicted upon the person
kidnapped or detained or threats to kill him are made; or
o The person kidnapped or detained is a minor, female, or a public
officer.

2. Kidnapping and Slight Illegal Detention (Art. 268, Revised Penal Code)

Offender is a private individual;


He kidnaps or detains another, or in any other manner deprives him of
his liberty;
The act of kidnapping or detention is illegal;
The crime is committed without the attendance of any of the
circumstances enumerated under Kidnapping and Serious Illegal
Detention.

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g. Grave Threats (Art. 282, Revised Penal Code)

1. Threatening another with the infliction upon his person, honor or property, or
that of his family, of any wrong amounting to a crime and demanding money or
imposing any other condition, even though not unlawful, and the offender
attained his purpose; OR
2. Making such threat without the offender attaining his purpose; OR
3. Threatening another with the infliction upon his person, honor or property, or
that of his family, of any wrong amounting to a crime, the threat not being
subject to a condition.

h. Grave Coercion (Art. 286, Revised Penal Code)

1. A person prevented another from doing something not prohibited by law, or


that he compelled him to do something against his will; be it right or wrong;
2. The prevention or compulsion be effected by violence, threats or intimidation;
and
3. The person that restrained the will and liberty of another had not the authority
of law or the right to do so, or in other words, that the restraint shall not be made
under authority of law or in the exercise of any lawful right.

i. Attempted or Frustrated Murder or Homicide (Art. 250, Revised Penal Code)

1. If torture was committed through acts that clearly evince the perpetrators
intent to ultimately kill the victim (albeit in a protracted manner as to first
extract useful or incriminating information), although the victim did not die as
a result, then an action for frustrated or attempted murder or homicide may be
filed, alleging the following elements:

An attempt to kill a person;


Offender attempted to kill him without any justifying circumstances;
Offender had the intention to kill;
The killing was not attended by any of the qualifying circumstances of
murder, or by that of parricide or infanticide.

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j. Murder (Art. 248, Revised Penal Code) or Homicide (Art. 249, Revised Penal Code)

1. If the victim actually dies as a result of the torture, then an action for murder or
for homicide may be brought before the courts by the heirs of the deceased
assisted by the Prosecutors or Public Attorneys, alleging the following elements:

A person was killed;


Accused killed him;
The killing was attended by any of the following qualifying
circumstances:

o With treachery, taking advantage of superior strength, with the


aid or armed men, or employing means to waken the defense, or
of means or persons to insure or afford impunity;
o In consideration of a price, reward or promise;
o By means of inundation, fire, poison, explosion, shipwreck,
stranding of a vessel, derailment or assault upon a railroad, fall
of an airship, by means of motor vehicles, or with the use of any
other means involving great waste and ruin;
o On occasion of any of the calamities enumerated in the preceding
paragraph, or of an earthquake, eruption of a volcano,
destructive cyclone, epidemic, or any other public calamity;
o With evident premeditation;
o With cruelty, by deliberately and inhumanly augmenting the
suffering of the victim, or outraging or scoffing at his person or
corpse.

The killing is not parricide or infanticide.

In all these cases, however, the prosecution of torture takes a more circuitous
route, not to mention the fact that it would be harder to meet the quantum of evidence
required to sustain a conviction on all grounds taken individually. It would, however, be
better to institute these actions in vindication of the rights of the victim rather than allow
the act of torture to go unpunished and not to pursue it in lieu of the main action in the
case (e.g, the victim is charged with the crime of theft but was tortured while in detention
chances are the defense will just concentrate on proving innocence of the accused in the
crime of theft without pursuing administrative and criminal cases in relation to the
perpetration of torture on the accused).

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4. Prosecution under the Human Security Act (RA 9372)

Under the Human Security Act, the following acts shall not be employed during
the investigation/interrogation of a person detained for the crime of terrorism or
conspiracy to commit terrorism:

Threat
Intimidation
Coercion
Acts which will inflict any form of physical pain or torment, or mental,
moral, or psychological pressure, or which shall vitiate the detained
persons free-will

If the above acts were shown to have been committed, the evidence obtained from said
detained person resulting from such threat, intimidation, or coercion, or from such
inflicted physical pain or torment, or mental, moral, or psychological pressure, shall be, in
its entirely, absolutely not admissible and usable as evidence in any judicial, quasi-judicial,
legislative, or administrative investigation, inquiry, proceeding, or hearing.

More importantly, the person or persons proven to have committed the above acts will
be penalized under Sec. 25 of the Human Security Act in this wise:

a. Any person or persons who use threat, intimidation, or coercion, or who


inflict physical pain or torment, or mental, moral, or psychological
pressure, which shall vitiate the free-will of a charged or suspected person
under investigation and interrogation for the crime of terrorism or the
crime of conspiracy to commit terrorism shall be guilty of an offense and
shall suffer the penalty of twelve years and one day to twenty years of
imprisonment.

b. When death or serious permanent disability of said detained person occurs


as a consequence of the use of such threat, intimidation, or coercion, or as
a consequence of the infliction on him of such physical pain or torment, or
as a consequence of the infliction on him of such mental, moral or
psychological pressure, the penalty shall be twelve years and one day to
twenty years of imprisonment.

5. Resort to the generic remedies for human rights violations

Since the act of torture, as discussed above, may take the form or include
punishable acts like illegal or arbitrary detention; unjust imprisonment or detention; or
the infliction of various physical, emotional, or psychological injuries, then torture as a
consequences can be made a ground for a claim under the Victim Compensation Act (RA
7309), as well as an independent action for damages under Article 32 of the Civil Code,

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particularly on the ground of violation of the freedom against cruel and unusual
punishment and the freedom from arbitrary or illegal detention.

C. DEALING WITH TORTURE UNDER PROCEDURAL LAW

1. Inadmissibility in evidence under the Constitution

Under the 1987 Constitution (Article III, Sec. 12 (3)), one of the most
paramount procedural rule that the prosecutor should remember is that any
confession or admission obtained from a person under investigation through
torture shall be inadmissible in evidence against him. This principle of the
Constitution partakes of a Rule of Exclusion that, in contemplation of the Rules of
Court (particularly the Rules on Evidence).

The prosecutor must be prudent enough to confer with the client in


confidence and in a manner and within an atmosphere that would inspire trust so
that the possibility of such confession or admission being obtained through torture
can be eliminated with certainty. Oftentimes, the case of the prosecution can rise
and fall with the admission into evidence of the defendants admission or
confession. It is therefore imperative that torture be ruled out in such cases to
avoid a miscarriage of justice.

2. Detection of torture at the inquest stage

Letter of Instruction 621 (series of 1977) provides for a procedural


mechanism by which torture can be prevented very early in the prosecution
process. Sec.6 (e) thereof pronounces that one of the functions of the inquest
procedure is to determine if maltreatment or other forms of torture have been
committed on the person arrested and to institute the necessary charges if any.

Clearly, the Prosecutor tasked to determine the legality of a warrantless


arrest and the propriety of keeping an accused under detention also has the
responsibility of seeing to it that the process of arrest and custodial investigation
(which commences immediately at the point of arrest) is not vitiated by acts of
torture and other forms of maltreatment. The Prosecutor must ascertain this by
posing questions to the accused under such circumstances as to render the query
effective; it cannot be undertaken in a manner that would defeat the intention of
the law (e.g., in the presence of arresting officers from which an accused claiming
torture can reasonably fear retaliation).

If torture is already detected at this stage, and supposing probable cause


for the legality of the arrest rests solely upon a confession extracted through it, then
the Prosecutor acting as inquest officer can immediately abort the prosecution

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process, or overrule the plea for continued detention, or make a recommendation
finding lack of probable cause, on the ground that a confession extracted through
torture or acts tantamount to it is inadmissible in evidence. This is without
prejudice to the institution of proper actions to proceed against the perpetrators of
torture.

3. Treatment of torture at the trial stage

a. Administrative Matter No. MTJ 90-4001 (July 14, 1995)

What if torture, up until the point where the case goes to trial, remains
undetected? Or if torture has been resorted to only at that point most
proximate to the trial date where the accused is set to testify and must therefore
be intimidated?

Allegations of torture at the point of trial is still primarily the responsibility


of the lawyer to verify and act upon accordingly. The continuation of the trial
of the case for which the person stands accused is not a bar to the institution of
administrative or criminal actions against persons guilty of perpetrating
torture. However, if allegations of torture have been brought to fore during the
trial stage or, indeed, in open court at the trial itself, an obligation is also
imposed on the judge to proceed with the trial with extra caution to prevent
the constitutional guarantees [against torture, force, violence, threat,
intimidation, or any other means which vitiate the free will] from being
reduced to futile platitudes. This much is mandated by Administrative Matter
No. MTJ 90-4001 (July 14, 1995).

What does extra caution entail? This would entail the judges taking an
active role in the ascertainment of the veracity of the claim of torture or in the
assurance that statements given in open court were not the result of torture,
even if no claim to that effect was raised. Whenever an admission or confession
is introduced in evidence, the judge should personally satisfy himself that such
were voluntarily given and not extracted through force or intimidation.

2. People v. Castro (GR No. L-17465, August 31, 1964)

In the 1964 criminal case of People v. Castro, the Supreme Court imposed
upon judges and prosecutors, to whom persons accused are brought for
swearing to the truth of their statements, the obligation to adopt the practice
of having confessants physically and thoroughly examined by independent and
qualified doctors before administering the oath, even if it is not requested by
the accused.

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The judge is enjoined to assume an active role in the detection of torture,
so much so that he/she is expected not only to address allegations of torture,
or ascertain the absence thereof whenever a confession or admission is
introduced in evidence. The judge, in general terms, is enjoined to make
findings of fact regarding the presence or absence of previous acts of torture
perpetrated upon the accused through overt and searching inquiry. In doing
so, the judge must take into account the fact that an accused who goes to court
for trial and who expects to be returned to the same detention place under the
custody of the same detention officers is very likely to volunteer information of
torture or maltreatment.

It is therefore the duty of the judge to examine the candor of the accused
and look for tell-tale signs of torture even if no allegation of such was made. In
addition, the judge must not confine him/herself with mere physical
manifestations evidencing or indicating the possibility of torture.

3. People v. Chaw Yaw Shun G.R. L-19590, April 25, 1968

In Chaw Yaw Shun, the Supreme Court acknowledged that the mere
absence of external injury in the confessors body does not destroy or rule out any
claim of maltreatment by the use of other scientific modes or forms of torture.
Vigilance, therefore, should be exercised by the judge in ascertaining that torture
was not committed, whether or not such commission resulted in physical injuries
that are easily detected.

III. PROSECUTING CASES OF ENFORCED DISAPPEARANCE

A. BACKGROUND

On the occasion of the Supreme Courts promulgation of the historic Rule on the
Writ of Amparo, the High Court had opportunity to expound on what enforced
disappearances mean. According to the Court, adopting the definition advanced
by the Declaration on the Protection of All Persons Against Enforced
Disappearance, there is a case of enforced disappearance when the following
characteristics concur:

1. An arrest, detention or abduction of a person by a government official or


organized groups or private individuals acting with the direct or indirect
acquiescence of the government;
2. The refusal of the State to disclose the fate or whereabouts of the person
concerned;
3. Or a refusal to acknowledge the deprivation of liberty which places such persons
outside the protection of the law (Declaration on the Protection of All Persons

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Against Enforced Disappearance. UN GAOR 47/133, 18 December 1992, Third
Preambular Clause).

Enforced disappearances, however, are per se unfamiliar creatures in the


legal terrain of the Philippine criminal justice system. There is no such crime found
in our statute books. Does it mean to say, then, that prosecutors faced with such a
case are left with no resort in law to vindicate the rights of the victims? How does
an agent of the criminal justice system go about employing the ordinary
mechanisms or redress provided in law to deal with an extraordinary case like
enforced disappearance?

B. REMEDIES AVAILABLE UNDER ORDINARY ACTIONS

1. Availment of generic remedies for human rights violations

a. Cases of enforced disappearance represent a violation of a persons:

1. Right to liberty and security


a. Right not to be subjected to enforced disappearance, a right recognized by
international human rights instruments, and
2. Right not to be subjected to unlawful or arbitrary detention.

b. As such, the generic remedies for human rights violations as discussed earlier
in this manual can be availed of Victims of enforced disappearance can seek
compensation against perpetrators by way of an action for damages under
Article 32 of the Civil Code and from the Board of Claims of the Department of
Justice under the Victim Compensation Act.

2. Criminal actions

a. Actions under the Revised Penal Code can be brought against persons
responsible for enforced disappearances. Depending on the satisfaction of the
requisite elements constituting each felony, the following actions (with the
following elements) may be filed against the responsible person or persons for
acts that they have committed directly or on the occasion of the enforced
disappearance

1. Arbitarary Detention (Art. 124, Revised Penal Code)

a. Offender is a public officer or employee;


b. He detains a person;
c. The detention is without legal grounds. For this purpose, without legal
ground means either:
i. No crime was committed by the detained; or
ii. There is no violent insanity of the detained person; or

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iii.
The person detained has no ailment which requires compulsory
confinement in a hospital.
2. Kidnapping and Serious Illegal Detention (Art. 267, Revised Penal Code)

a. Offender is a private individual;


b. He kidnaps or detains another, or in any other manner deprives the
latter of his liberty;
c. The act of detention or kidnapping must be illegal;
d. In the commission of the offense, any of the following circumstances is
present:

i. The kidnapping lasts for more than 3 days;


ii. It is committed simulating public authority;
iii. Any serious physical injuries are inflicted upon the person
kidnapped or detained or threats to kill him are made; or
iv. The person kidnapped or detained is a minor, female, or a
public officer.

e. In addition, when the following qualifying circumstances are present


when the felony is committed, the highest imposable penalty shall be
imposed:

i. Purpose is to extort ransom;


ii. When the victim is killed or dies as a consequences of the
detention;
iii. When the victim is raped;
iv. When victim is subjected to torture of dehumanizing acts.

C. REMEDIES AVAILABLE FOR INFORMATION GATHERING

1. Rationale
The first and most pragmatic step in dealing with a case of enforced
disappearance is information-gathering. A defining characteristic of enforced
disappearance is the sudden abduction of a person (either under the guise of an
ostensibly lawful arrest or through machinations designed to carry out the
abduction without witnesses and with impunity) under circumstances that would
incapacitate that persons family or loved ones from knowing where to look for
him/her afterwards. The incapacity can be brought about by factors such as the
deliberate assumption of anonymity of his/her abductors (through removal of
identifying nameplates/insignias of home units, etc.), deliberate non-disclosure
of his/her detention place, or the cutting off of all means of communication to and
from the abducted person.

Since the family or loved ones of the disappeared person would not know
where to look, it becomes a challenge to avail of the usual remedies under the law

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which lays down certain threshold information at the outset as a precondition to
the availment thereof-issues of territorial jurisdiction, to whom court processes
will be served, etc. The first step is therefore to gather as much information as one
can so that the victims family or loved ones can institute the necessary action and
avail of the necessary remedy more effectively.

2. Right to information; extent thereof

The right to information is a right recognized by the Universal Declaration


of Human Rights when it provides: Everyone has the right to freedom of opinion
and expression; this right includes freedom to hold opinions without interference
and to seek, receive and impart information and ideas through any media and
regardless of frontiers (U.N. GAOR 217 A (III), 10 December 1948, Art. 19).

The Constitution also provides: The right of the people to information on


matters of public concern shall be recognized. Access to official records and to
documents and papers pertaining to official acts, transactions, or decisions, as
well as to government research data used as basis for policy development, shall be
afforded the citizen, subject to such limitations as may be provided by law (Art.
III, Sec. 7).

The incorporation of the right to information in legal instruments and


documents only goes to prove that it is infused with a public policy dimension and
enjoys the full recognition and protection of the law. The right is primarily
predicated on the inherent entitlement of the people to be vanguards of
governance, to be cognizant of matters that their elected leaders are undertaking.
The democratic institutions of the country would be rendered infirm if the people
cannot given the power to hold their leaders accountable through mechanisms of
transparency put in place by the laws.

On a smaller scale, however, the right to information can also be invoked


not only for purposes of political governance but also as a safeguard against
official abuse. Pertinent to cases of enforced disappearance, the almost plenary
right to information can be employed to compel access to and disclosure of official
data that can be helpful in the location of a person involuntarily disappeared. This
can include access to official police blotters and military records, as well as records
of commitment of persons to detention facilities. Owing to the broad and
sweeping language of the constitutional provision guaranteeing the right to
information, access to official records, especially those that would aid in the
resolution of cases of enforced disappearance, is the general rule, and any
limitation thereto can only be imposed by direct legal prescription.

3. Right to information; limitations thereto

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The Implementing Rules and Regulations of the Code of Conduct and
Ethical Standards for Public Officials and Employees (RA 6713 and its IRR) states
the limitations provided by law with regard to access to official records, data, and
information. In a gist, the limitations provided in the law all pertain largely to
already-established areas of governance where wide and open public access would
result in detrimental consequences to national security, the protection of the
rights of persons, and foreign affairs. In the following cases, access to information
is restricted, as provided in Rule IV, Sec. 3 of the Implementing Rules of RA 6713:

a. Such information, record or document must be kept secret in the interest


of national defense or security or the conduct of foreign affairs;

b. Such disclosure would put the life and safety of an individual in imminent
danger;

c. The information, record or document sought falls within the concepts of


established privilege or recognized exceptions as may be provided by law or
settled policy or jurisprudence (e.g. closed door cabinet sessions, executive
sessions of congress, deliberations of the Supreme Court, trade, secrets, and the
like);

d. Such information, record or document comprises drafts of decisions,


orders, rulings, policy decisions, memoranda, etc.;

e. It would disclose information of a personal nature where disclosure would


constitute a clearly unwarranted invasion of personal privacy (e.g., patient-
physician privilege);

f. It would disclose investigatory records complied for law enforcement


purposes, or information which if written would be contained in such records, but
only to the extent that the production of such records or information would:

1. Interfere with enforcement proceedings;


2. Deprive a person of a right to a fair trial or an impartial adjudication;
3. Disclose the identity of a confidential source and, in the case of a record
compiled by a criminal law enforcement authority in the course of a
criminal investigation, or by an agency conducting a lawful national
security intelligence investigation, confidential information furnished only
by the confidential source; or
4. Unjustifiably disclose investigative techniques and procedures; or
5. It would disclose information the premature disclosure of which would:

In the case of a department, office or agency which regulates currencies,


securities, commodities, or financial institutions, be likely to lead to
significant financial speculation in currencies, securities, or

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commodities, or significantly endanger the stability of any financial
institution; or

In the case of any department, office or agency, be likely or significantly


to frustrate implementation of a proposed official action, except that
subparagraph (f) (ii) shall not apply in any instance where the
department, office or agency has already disclosed to the public the
content or nature of its proposed action, or where the department,
office or agency is required by law to make such disclosure on its own
initiative prior to taking final official action on such proposal.

6.

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