Beruflich Dokumente
Kultur Dokumente
I.
DEFINITION, NATURE AND PURPOSE
A. NATURE AND VIEWS
PCGG VS DESIERTO
Facts:
On October 8, 1992, then President Fidel V. Ramos
issued Administrative Order No. 13 creating the
Presidential Ad Hoc Fact-Finding Committee on Behest
Loans (Committee) which was tasked to inventory all
behest loans, determine the parties involved and
recommend whatever appropriate actions to be pursued
thereby.
On November 9, 1992, President Ramos issued
Memorandum Order No. 61 expanding the functions of
the Committee to include the inventory and review of all
non-performing loans, whether behest or non-behest.
The Memorandum set the following criteria to show the
earmarks of a "behest loan," to wit: "a) it is
undercollaterized; b) the borrower corporation is
undercapitalized; c) a direct or indirect endorsement by
high government officials like presence of marginal
notes; d) the stockholders, officers or agents of the
borrower corporation are identified as cronies; e) a
deviation of use of loan proceeds from the purpose
intended; f) the use of corporate layering; g) the nonfeasibility of the project for which financing is being
sought; and, h) the extraordinary speed in which the loan
release was made."
Among the accounts referred to the Committee's
Technical Working Group (TWG) were the loan
transactions between NOCOSII and PNB.
After it had examined and studied all the documents
relative to the said loan transactions, the Committee
classified the loans obtained by NOCOSII from PNB as
behest because of NOCOSII's insufficient capital and
inadequate collaterals. Specifically, the Committee's
investigation revealed that in 1975, NOCOSII obtained
loans by way of Stand-By Letters of Credit from the
PNB; that NOCOSII was able to get 155% loan value
from the offered collateral or an excess of 85% from the
required percentage limit; that the plant site offered as
one of the collaterals was a public land contrary to the
General Banking Act; that by virtue of the marginal note
of then President Marcos in the letter of Cajelo,
NOCOSII was allowed to use the public land as plant
site and to dispense with the mortgage requirement of
PNB; that NOCOSII's paid-up capital at the time of the
approval of the guaranty was only P2,500,000.00 or only
about 6% of its obligation.
Based on the Sworn Statement of PCGG consultant
Orlando Salvador, petitioner filed with the Office of the
Ombudsman
the
criminal
complaint
against
respondents. Petitioner alleges that respondents violated
b)
c)
d)
e)
b)
c)
d)
c)
b)
c)
d)
e)
b)
Service
of
subpoena
and
all
papers/documents required to be attached a
thereto shall be b'~- personal service by
regular process servers. In their
Absence, the cooperation of the Provincial
City/Municipal Station Commanders of the
Philippine National Police (PNP) may be
requested for the purpose.
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 subpoena and its attachments shall
be effected by registered mail with return
card at respondent's known home/office
address. On the face of the envelope shall be
indicated
I. the name and return
typewritten/printed
considered a counter-affidavit.
SEC. 19. Motion for dismissal of bill of particulars.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
counter-affidavits and other supporting documents.
All the grounds for the dismissal of the complaint, as
well as 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.
The Investigating Prosecutor may 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:
a)
the circumstances specified in subparagraphs (a), (b)9 (c) and (d) and (e) of
Section 14 of this Part;
b)
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
c)
the extinction of respondentts
criminal liability by reason of death, pardon,
amnesty, repeal of the law under which
prosecution is sought, or other legal causes.
SEC. 20. Consolidation.- The following cases shall,
as far as practicable, be consolidated for preliminary
investigation purposes and assigned to and jointly heard by
one Investigating Officer:
a)
charges and counter-charges;
b)
cases arising from one and the
same incident or transaction or series of
incident or transactions; and
c)
cases involving common parties
and founded on factual and/or legal issues of
the same or similar character.
SEC. 21. Extension of time. - 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 reasonable time or sufficient opportunity to:
a)
b)
c)
b)
c)
during the
proceedings.
preliminary
investigation
a)
b)
c)
a)
b)
d)
SEC. 51. Motion for reinvestigation, where filed. Before the arraignment of the accused, a motion for
reinvestigation of the case may be filed with the
City/Provincial Prosecutor, Provided, That when the case has
been appealed to the Regional State Prosecutor or the
Department of Justice, such motion may be filed, respectively,
with the said offices. After arraignment, said motion may only
be filed with the judge hearing the case.
SEC. 52. 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 Provincial/City Prosecutor
or his duly authorized assistant and approved for promulgation
and release to the parties.
Violation of the foregoing shall subject the
Investigating Prosecutor or the employee of the office
concerned to severe disciplinary action.
SEC.
53.
Information/Complaint.The
information/complaint shall be personally and directly
prepared by the Investigating Prosecutor or such other
prosecutor designated for the purpose and signed by him or the
complainant, as the case may be. It shall state and contain, in
addition to the requirements of the Rules of Court on the
sufficiency of the allegations in an information or complaint,
the following:
a)
b)
c)
d)
e)
f)
g)
h)
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 address of the evidence
custodian; and
the bail recommended, if the charge is
bailable.
c)
personal service;
registered mail with return card to
complainant, and by ordinary mail to
respondent, if the resolution is for
dismissal of the complaint; or
registered mail with return card to
respondent, and by ordinary mail to
complainant, if the resolution is for
indictment of the respondent.
the
the
the
the
the
the
b)
c)
a)
photograph of the confiscated fish,
if readily available; and
b)
certification of the Bureau of
Fisheries and Aquatic Resources.
Violation of the Forestry Law (P.9. No.705)
Theft and Robbery, Violation of the Anti-Piracy and AntiHighway Robbery Law (P.D. No.532) and Violation of the
Anti-Fencing Law (P.D. No.1612)
a)
scale sheets containing the volume
and species of the forest products
confiscated, number of pieces and other
important details such as estimated value of
the products confiscated;
b)
certification of Department of
Environment
and
Natural
Resources/Bureau of Forest Management;
and
c)
seizure receipt.
if he is confined in a hospital;
if he is detained in a place under maximum
security;
if production of the detained person will
involve security risks; or
if the presence of the detained person is not
feasible by reason of age, health, sex and
other similar factors.
9
a)
b)
a)
b)
c)
d)
e)
f)
g)
h)
a)
b)
c)
d)
e)
1991.
Forthwith, the DOJ formed a panel of prosecutors
headed by Asst Chief State Prosecutor Jovencio
R. Zuno to conduct the preliminary investigation.
Petitioners: fault the DOJ Panel for its finding
of probable cause. They assail the credibility of
Jessica Alfaro as inherently weak and
uncorroborated due to her inconsistencies
between her April 28, 1995 and May 22, 1995
sown statements. They criticize the procedure
followed by the DOJ Panel when it did not
examine witnesses to clarify the alleged
inconsistencies.
charge that respondent Judge Raul de Leon
and respondent Judge Amelita Tolentino issued
warrants of arrest against them without
conducting the required preliminary examination.
Complain about the denial of their
constitutional right to due process and violation
of their right to an impartial investigation. They
also assail the prejudicial publicity that attended
their preliminary investigation.
ISSUES:
(1) Did the DOJ Panel gravely abuse its discretion
in holding that there is probable cause to charge
accused with crime of rape and homicide?
(2) Did respondent judges de Leon and Tolentino
gravely abuse their discretion when they failed to
conduct a preliminary examination before issuing
warrants of arrest against the accused?
(3) Did the DOJ Panel deny them their
constitutional right to due process during their
preliminary investigation?
(4) Did the DOJ Panel unlawfully intrude into
judicial prerogative when it failed to charge
Jessica Alfaro in the information as an accused?
HELD:
(1) NO. Valid determination -- A 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.
the following:
1) Ombudsman Investigators;
2) Special Prosecuting Officers;
3) Deputized Prosecutors;
4) Investigating Officials authorized by law to conduct
preliminary investigation;
5) Lawyers in the government service, so designated by
the Ombudsman. (Underscoring, supplied)
Neither can we discern any tenability in petitioners
reliance on Section 17 of P.D. 1630. Said law, which took
effect on July 18, 1979, was deemed abrogated by
Section 7, Article XI of the 1987 Philippine Constitution,
which reads:
The existing Tanodbayan shall hereafter be known as
the Office of the Special Prosecutor. It shall continue to
function and exercise its powers as now and hereafter
may be provided by law, except those conferred on the
Office of the Ombudsman created under this
Constitution.
(Underscoring supplied)
The powers, functions and duties of the Office of
the Ombudsman are clearly provided in Section 13,
Article XI of the 1987 Charter, as follows:
(1) [to] investigate on its own, or on complaint by any
person, any act or omission of any public official,
employee, office or agency, when such act or omission
appears to be illegal, unjust, improper, or inefficient.
(2) [to] direct, upon complaint or at its own instance, any
public official or employee of the Government, or any
subdivision, agency or instrumentality thereof, as well as
of any government-owned or controlled corporation with
original charter, to perform and expedite any act or duty
required by law, or to stop, prevent, and correct any
abuse or impropriety in the performance of duties.
xxx
In line with the aforestated constitutional
provisions, then President Corazon C. Aquino signed
Executive Order No. 24 limiting the Special Prosecutors
authority, thus:
Section 2 - The Office of the Special Prosecutor shall
exercise powers presently exercised by the Tanodbayan
except those conferred on the Office of the Ombudsman
under the Constitution. (Underscoring, supplied)
Then, too, while Section 17 of P.D. No. 1630
provides, that:
The Office of Tanodbayan (now, Office of the Special
Prosecutor) shall have the exclusive authority to conduct
preliminary investigation of all cases cognizable by the
Sandiganbayan...;
Section 11, subparagraph 4 (c) of R.A. No. 6770, states,
that:
The Office of the Special Prosecutor shall, under the
supervision and control and upon the authority of the
Ombudsman, have the following powers:
(a) To conduct preliminary investigation and prosecute
criminal cases within the jurisdiction of the
Sandiganbayan.
xxx
Unmistakably, the exclusive authority of the Office
of the Tanodbayan (now Office of the Special
Prosecutor) under P. D. No. 1630 to conduct preliminary
investigation was not included in Section 11,
of Nueva Vizcaya. On the same day, petitioners filed a motion for reinvestigation in the
Tanodbayan. The same was granted.
- The Tanodbayan ordered to dismiss the case for lack of merit and to withdraw the
Information filed in Criminal Case No. 11414 as soon as possible in the interest of
justice.
- Tanodbayan filed with the Sandiganbayan a motion to withdraw the information
against petitioners. This was denied.
- BAlgos et al filed a motion to suspend proceedings in the criminal case against them
on the ground of the existence of a prejudicial question in Civil Case No. 5307. This
was likewise denied by the Sandiganbayan.
ISSUE
WON the denial by the Sandiganbayan of the motion to withdraw the information and
of another motion to suspend proceedings on the ground of a prejudicial question in a
pending civil action constitute a grave abuse of discretion.
HELD
NO.
- While the public prosecutor has the sole direction and control in the prosecution of
offenses, once the complaint or information is filed in court, the court thereby acquires
jurisdiction over the case and all subsequent actions that may be taken by the public
prosecutor in relation to the disposition of the case must be subject to the approval of
the said court. Before a re-investigation of the case may be conducted by the public
prosecutor, the permission or consent of the court must be secured. And if after such
reinvestigation the prosecution finds a cogent basis to withdraw the information or
otherwise cause the dismissal of the case, such proposed course of action must be
addressed to the sound discretion of the court. - The only instance when the appellate
court should stay the hand of the trial court in such cases is when it is shown that the
trial court acted without jurisdiction or in excess of its jurisdiction or otherwise
committed a grave abuse of discretion amounting to such lack or excess of jurisdiction.
- Petitioners are public officers charged with having violated Section 3(c) of RA 3019,
for evident bad faith and manifest partiality in enforcing the writ of execution in Civil
Case No. 4047 against a Mustang car registered in the name of Leticia Acosta-Ang
(complainant) who is not the judgment debtor thereby causing undue injury to said
complainant and giving unwarranted benefits to the judgment creditor in said case.
- Upon reinvestigation of the criminal case by the Tanodbayan, he found evidence
tending to show that the sale of said car to the complainant by Juanito Ang, the
judgment debtor, was a sham intended to defraud his creditors; that the deed of
absolute sale which ostensibly was executed before a notary public appeared to be
fictitious inasmuch as the entry of the document in the notarial register of said notary
public on said date referred to a catering contract of other parties; that the certificate of
registration of the car was issued to complainant only on June 13, 1984 which showed
that the document of sale was actually executed only on or about the same date, that
is, seven days after Juanito Ang received copy of the adverse decision in Civil Case
No. 4047; and that upon the execution of the judgment, the car was found in the
possession of Alvin, the son of Juanito Ang, who admitted that the car belonged to his
father by showing the receipt of its repair in the name of Juanito Ang. This is the basis
of the motion for withdrawal of the information of the Tanodbayan.
- The respondents are aware that the complainant is not a party to the civil case filed
by the creditor against spouses Juanito and Lydia Ang and that a writ of execution
cannot be implemented validly against one who is not a party to the action. All these,
coupled with the under haste in which the levy on the Mustang car was made without
first ascertaining the true owner thereof demonstrate quite convincingly the evident
bad faith and manifest partiality of the respondents, thereby giving unwarranted
benefits to the judgment creditor to the damage and prejudice of the complainant.
- Although at the reinvestigation, the Tanodbayan was persuaded that in fact the sale
of the car to Leticia Ang was fraudulent, this did not necessarily clear petitioners of the
aforesaid Anti-Graft charge against them. Still the burden is on the petitioners to
establish that they acted in good faith in proceeding with the execution on the car even
they were presented evidence tending to show it did not belong to Juanito Ang
anymore.
- The denial of the motion to suspend the criminal proceedings on the ground of the
pendency of a prejudicial question in Civil Case No. 5307 is well taken. The doctrine of
prejudicial question comes into play usually in a situation where a civil action and a
criminal action are both pending and there exists in the former an issue which must be
preemptively resolved before the criminal action may proceed, because whatsoever
the issue raised in the civil action is resolved would be determinative juris et jure of the
guilt or innocence of the accused in the criminal case.
- The pending civil case for the annulment of the sale of the car to Leticia Ang is not
determinative of the guilt or innocence of the petitioners for the acts allegedly
committed by them in seizing the car. Even if in the civil action it is ultimately resolved
that the sale was null and void, it does not necessarily follow that the seizure of the car
was rightfully undertaken. The car was registered in the name of Leticia Ang six
months before the seizure. Until the nullity of the sale is declared by the courts, the
same is presumptively valid. Thus, petitioners must demonstrate that the seizure was
not attended by manifest bad faith in order to clear themselves of the charge in the
criminal action.
Dispositive The petition is DENIED for lack of merit and the restraining order dated
D. SCOPE
PADERANGGA VS DRILON
PROCEDURE
IN
CASE
WHERE
PRELIMINARY
INVESTIGATION
REQUIRED
A. IN CASE COGNIZIBLE BY RTC
1. CONDUCTED BY PROSECUTOR
RULE 112
ALLADO VS DIOKNO
FACTS
- Petitioners Diosdado Jose Allado and Roberto L. Mendoza, alumni of the College of
Law, University of the Philippines, are partners of the Law Firm of Salonga, Hernandez
and Allado. In the practice of their profession, and on the basis of an alleged
extrajudicial confession of a security guard (Umbal), they have been accused of the
heinous crime of kidnapping with murder of a German national named Van Twest by
the Presidential Anti-Crime Commission (PACC) and ordered arrested without bail by
respondent judge.
- Petitioners filed this petition and principally contended that respondent judge acted
with grave abuse of discretion and in excess of jurisdiction in "whimsically holding that
there is probable cause against petitioners without determining the admissibility of the
evidence against petitioners and without even stating the basis of his findings," and in
"relying on the Resolution of the Panel and their certification that probable cause exists
when the certification is flawed." Petitioners maintain that the records of the
preliminary investigation which respondent judge solely relied upon failed to establish
probable cause against them to justify the issuance of the warrant of arrest. Petitioners
likewise assail the prosecutors' "clear sign of bias and partiality."
- On the other hand, the Office of the Solicitor General argues that the determination of
probable cause is a function of the judge who is merely required to personally
appreciate certain facts to convince him that the accused probably committed the
crime charged.
ISSUE
WON the respondent judge committed grave abuse of discretion in the preliminary
inquiry which determines probable cause for the issuance of a warrant of arrest
HELD
- In the Order of respondent judge, it is expressly stated that "[t]his court after careful
evaluation of the evidence on record, believes and rules that probable cause exists;
and therefore, a warrant of arrest should be issued." However, we are unable to see
how respondent judge arrived at such ruling. We have painstakingly examined the
records and we cannot find any support for his conclusion. On the contrary, we discern
a number of reasons why we consider the evidence submitted to be insufficient for a
finding of probable cause against petitioners.
- The PACC relies heavily on the sworn statement of Security Guard Umbal who
supposedly confessed his participation in the alleged kidnapping and murder of Van
Twest. For one, there is serious doubt on Van Twest's reported death since the corpus
delicti has not been established, nor have his remains been recovered. Umbal claims
that Van Twest was completely burned into ashes with the use of gasoline and rubber
tires from around ten o'clock in the evening to six o'clock the next morning. This is
highly improbable, if not ridiculous. A human body cannot be pulverized into ashes by
simply burning it with the use of gasoline and rubber tires in an open field. Even
crematoria use entirely closed incinerators where the corpse is subjected to intense
heat. Thereafter, the remains undergo a process where the bones are completely
ground to dust.
- Strangely, if not awkwardly, after Van Twest's reported abduction which culminated in
his decimation by cremation, his counsel continued to represent him before judicial
and quasi-judicial proceedings. Hence, even Asst. Solicitor General Estoesta believes
that counsel of Van Twest doubted the latter's death.
- Verily, respondent judge committed grave abuse of discretion in issuing the warrant
for the arrest of petitioners it appearing that he did not personally examine the
evidence nor did he call for the complainant and his witnesses in the face of their
incredible accounts. Instead, he merely relied on the certification of the prosecutors
that probable cause existed. For, otherwise, he would have found out that the
evidence thus far presented was utterly insufficient to warrant the arrest of petitioners.
- In Soliven v. Makasiar, we said that the judge (a) shall personally evaluate the report
and the supporting documents submitted by the fiscal regarding the existence of
probable cause and, on the basis thereof, issue a warrant of arrest; or, (b) if on the
basis thereof he finds no probable cause, may disregard the fiscal's report and require
the submission of supporting affidavits of witnesses to aid him in arriving at a
conclusion on the existence of probable cause.
- In People v. Inting, we emphasized the important features of the constitutional
mandate: (a) The determination of probable cause is a function of the judge; it is not
for the provincial fiscal or prosecutor to ascertain. Only the judge and the judge alone
makes this determination; (b) The preliminary inquiry made by a prosecutor does not
bind the judge. It merely assists him in making the determination of probable cause.
The judge does not have to follow what the prosecutor presents to him. By itself, the
prosecutor's certification of probable cause is ineffectual. It is the report, the affidavits,
the transcript of stenographic notes (if any), and all other supporting documents
behind the prosecutor's certification which are material in assisting the judge in his
determination of probable cause; and, (c) Judges and prosecutors alike should
distinguish the preliminary inquiry which determines probable cause for the issuance
of a warrant of arrest from the preliminary investigation proper which ascertains
whether the offender should be held for trial or released. Even if the two inquiries be
conducted in the course of one and the same proceeding, there should be no
confusion about their objectives. The determination of probable cause for the warrant
is made by the judge. The preliminary investigation proper whether or not there is
reasonable ground to believe that the accused is guilty of the offense charged and
therefore, whether or not he should be subjected to the expense, rigors and
embarrassment of trial is a function of the prosecutor.
- ALLADO DOCTRINE: If upon the filing of the information in court, the trial judge, after
reviewing the information and the document attached thereto, finds that no probable
cause exists, he must either call for the complainant and the witnesses themselves or
simply dismiss the case. There is no reason to hold the accused for trial and further
expose him to an open and public accusation of the crime when no probable cause
exists.
Dispositive Petition granted
The
preliminary investigation shall be conducted in
the following manner:
(a) The complaint shall state the address of the
respondent and shall be accompanied by the
affidavits of the complainant and his witnesses,
as well as other supporting documents to
establish probable cause. They shall be in such
number of copies as there are respondents,
plus two (2) copies for the official file. The
affidavits shall be subscribed and sworn to
witness concerned.
The hearing shall be held within ten (10) days
from submission of the counter-affidavits and
other documents or from the expiration of the
period for their submission. It shall be
terminated within five (5) days.
(f) Within ten (10) days after the investigation,
the investigating officer shall determine
whether or not there is sufficient ground to hold
the respondent for trial.
Section 5. Resolution of investigating judge
and its review. Within ten (10) days after the
preliminary investigation, the investigating
judge shall transmit the resolution of the case
to the provincial or city prosecutor, or to the
Ombudsman or his deputy in cases of offenses
cognizable by the Sandiganbayan in the
exercise of its original jurisdiction, for
appropriate action. The resolution shall state
the findings of facts and the law supporting his
action, together with the record of the case
which shall include: (a) the warrant, if the arrest
is by virtue of a warrant; (b) the affidavits,
counter-affidavits
and
other
supporting
evidence of the parties; (c) the undertaking or
bail of the accused and the order for his
release; (d) the transcripts of the proceedings
during the preliminary investigation; and (e) the
order of cancellation of his bail bond, if the
resolution is for the dismissal of the complaint.
Within thirty (30) days from receipt of the
records, the provincial or city prosecutor, or the
Ombudsman or his deputy, as the case may
be, shall review the resolution of the
investigating judge on the existence of
probable cause. Their ruling shall expressly
and clearly state the facts and the law on which
it is based and the parties shall be furnished
with copies thereof. They shall order the
release of an accused who is detained if no
probable cause is found against him. (5a)
Section 6. When warrant of arrest may issue.
(a) By the Regional Trial Court. Within ten
(10) days from the filing of the complaint or
information, the judge shall personally evaluate
the resolution of the prosecutor and its
supporting evidence. He may immediately
dismiss the case if the evidence on record
clearly fails to establish probable cause. If he
finds probable cause, he shall issue a warrant
of arrest, or a commitment order if the accused
has already been arrested pursuant to a
following manner:
(a) The complaint shall state the address of the
respondent and shall be accompanied by the
affidavits of the complainant and his witnesses,
as well as other supporting documents to
establish probable cause. They shall be in such
number of copies as there are respondents,
plus two (2) copies for the official file. The
affidavits shall be subscribed and sworn to
before any prosecutor or government official
authorized to administer oath, or, in their
absence or unavailability, before a notary
public, each of who must certify that he
personally examined the affiants and that he is
satisfied that they voluntarily executed and
understood their affidavits.
(b) Within ten (10) days after the filing of the
complaint, the investigating officer shall either
dismiss it if he finds no ground to continue with
the investigation, or issue a subpoena to the
respondent attaching to it a copy of the
complaint and its supporting affidavits and
documents.
The respondent shall have the right to examine
the evidence submitted by the complainant
which he may not have been furnished and to
copy them at his expense. If the evidence is
voluminous, the complainant may be required
to specify those which he intends to present
against the respondent, and these shall be
made available for examination or copying by
the respondent at his expense.
Objects as evidence need not be furnished a
party but shall be made available for
examination, copying, or photographing at the
expense of the requesting party.
(c) Within ten (10) days from receipt of the
subpoena with the complaint and supporting
affidavits and documents, the respondent shall
submit his counter-affidavit and that of his
witnesses and other supporting documents
relied upon for his defense. The counteraffidavits shall be subscribed and sworn to and
certified as provided in paragraph (a) of this
section, with copies thereof furnished by him to
the complainant. The respondent shall not be
allowed to file a motion to dismiss in lieu of a
counter-affidavit.
(d) If the respondent cannot be subpoenaed, or
if subpoenaed, does not submit counteraffidavits within the ten (10) day period, the
investigating officer shall resolve the complaint
complaint.
Within five (5) days from his resolution,
he shall forward the record of the case
to the provincial or city prosecutor or
chief state prosecutor, or to the
Ombudsman or his deputy in cases of
offenses
cognizable
by
the
Sandiganbayan in the exercise of its
original jurisdiction. They shall act on the
resolution within ten (10) days from their
receipt thereof and shall immediately
inform the parties of such action.
No complaint or information may be filed
or dismissed by an investigating
prosecutor without the prior written
authority or approval of the provincial or
city prosecutor or chief state prosecutor
or the Ombudsman or his deputy.
Where the investigating prosecutor
recommends the dismissal of the
complaint but his recommendation is
disapproved by the provincial or city
prosecutor or chief state prosecutor or
the Ombudsman or his deputy on the
ground that a probable cause exists, the
latter may, by himself, file the
information against the respondent, or
direct any other assistant prosecutor or
state prosecutor to do so without
conducting
another
preliminary
investigation.
If upon petition by a proper party under
such rules as the Department of Justice
may prescribe or motu proprio, the
Secretary of Justice reverses or
modifies the resolution of the provincial
or city prosecutor or chief state
prosecutor, he
shall
direct
the
prosecutor concerned either to file the
corresponding
information
without
conducting
another
preliminary
investigation, or to dismiss or move for
dismissal of the complaint or information
with notice to the parties. The same rule
shall apply in preliminary investigations
conducted by the officers of the Office of
the Ombudsman. (4a)
Section 5. Resolution of investigating
judge and its review. Within ten (10)
days after the preliminary investigation,
the investigating judge shall transmit the
resolution of the case to the provincial or
2.
CONDUCTED
OMBUDSMAN/
BY
RA 6770
SPECIAL
PROSECUTOR
RULE II
PROCEDURE IN CRIMINAL CASES
SECTION 1. GROUNDS. A criminal
complaint may be brought for an offense in
violation of R.A. 3019, as amended, R.A. 1379,
as amended, R.A. 6713, Title VII Chapter II,
Section 2 of the Revised Penal Code, and for
such other offenses committed by public
officers and employees in relation to office.
Sec. 2. EVALUATION. Upon evaluating the
complaint, the investigating officer shall
recommend whether it may be:
a) dismissed outright for want of palpable merit;
b) referred to respondent for comment;
c) indorsed to the proper government office or
agency which has jurisdiction over the case;
d) forwarded to the appropriate office or official
for fact-finding investigation;
e) referred for administrative adjudication; or
f) subjected to a preliminary investigation.
Sec. 3. PRELIMINARY INVESTIGATION;
WHO MAY CONDUCT. Preliminary
investigation may be conducted by any of the
following:
1) Ombudsman Investigators;
2) Special Prosecuting Officers;
3) Deputized Prosecutors;
4) Investigating Officials authorized by law to
conduct preliminary investigations; or
5) Lawyers in the government service, so
designated by the Ombudsman.
Sec. 4. PROCEDURE. Preliminary
investigation of cases falling under the
jurisdiction of the Sandiganbayan and Regional
Trial Courts shall be conducted in the manner
prescribed in Section 3, Rule 112 of the Rules
of Court, subject to the following provisions:
a) If the complaint is not under oath or is based
only on official reports, the investigating officer
shall require the complainant or supporting
witnesses to execute affidavits to substantiate
the complaints.
b) After such affidavits have been secured, the
investigating officer shall issue an order,
attaching thereto a copy of the affidavits and
other supporting documents, directing the
respondent to submit, within ten (10) days from
receipt thereof, his counter-affidavits and
controverting evidence with proof of service
thereof on the complainant. The complainant
may file reply affidavits within ten (10) days
after service of the counter-affidavits.
c) If the respondent does not file a counteraffidavit, the investigating officer may consider
the comment filed by him, if any, as his answer
to the complaint. In any event, the respondent
shall have access to the evidence on record.
d) No motion to dismiss shall be allowed
except for lack of jurisdiction. Neither may be
motion for a bill of particulars be entertained. If
respondent desires any matter in the
complainants affidavit to be clarified, the
particularization thereof may be done at the
time of clarificatory questioning in the manner
provided in paragraph (f) of this section.
e) If the respondent cannot be served with the
order mentioned in paragraph 6 hereof, or
having been served, does not comply
therewith, the complaint shall be deemed
submitted for resolution on the basis of the
evidence on record.
f) If, after the filing of the requisite affidavits and
their supporting evidences, there are facts
material to the case which the investigating
officer may need to be clarified on, he may
conduct a clarificatory hearing during which the
PROCEDURE IN
REQUIRING
INVESTIGATION
CASES NOT
PRELIMINARY
hours,
for
crimes
or
offenses
punishable
by
correctional penalties, or
their equivalent and thirtysix (36) hours, for crimes,
or offenses punishable by
afflictive
or
capital
penalties,
or
their
equivalent.
In every case, the person
detained shall be informed
of
the
cause
of
his
detention and shall be
allowed upon his request,
to communicate and confer
at any time with his
attorney or counsel.
chanrobles virtual law library
RJCL
REMEDIES
FOR
INVESTIGATION
A. APPEAL
PRELIMINARY
DIMATULAC V VILLON
Facts:
SP03 Virgilio Dimatulac was shot dead at his
residence in Pampanga. A complaint for
murder was filed in the MTC and after
preliminary investigation, Judge Designate
David issued warrants of arrest against the
accused.
Only David, Mandap, Magat, and Yambao were
ROBERTS VS CA
FACTS
- Several thousand holders of 349 Pepsi crowns in connection with the Number
Fever Promotion filed with the Office of the City Prosecutor of Quezon City complaints
against the petitioner officials of PEPSI.
- The petitioners filed with the Office of the City Prosecutor a motion for the
reconsideration of the Joint Resolution and with the DOJ a Petition for Review. The
petitioners also Motions to Suspend Proceedings and to hold in Abeyance Issuance of
Warrants of Arrest on the ground that they had filed the aforesaid Petition for Review.
- Respondent Judge Asuncion issued the challenged order (1) denying the petitioners
Motion to Suspend Proceedings and to Hold In Abeyance Issuance of Warrants of
Arrest and the public prosecutors Motion to Defer Arraignment and (2) directing the
issuance of the warrants of arrest after and setting the arraignment on 28 June 1993.
- The petitioners filed with the Court of Appeals a special civil action for certiorari and
prohibition with application for a temporary restraining order. They contended therein
that respondent Judge Asuncion had acted without or in excess of jurisdiction or with
grave abuse of discretion in issuing the aforementioned order.
- The Court of Appeals then issued a resolution denying the application for a writ of
preliminary injunction.
ISSUE
WON public respondent Judge Asuncion committed grave abuse of discretion
in ordering the issuance of warrants of arrest without examining the records of
the preliminary investigation.
HELD
YES.
- Section 2, Article III of the present Constitution provides that no search warrant or
warrant of arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce.
- The determination of probable cause is a function of the Judge. It is not for the
Provincial Fiscal or Prosecutor nor the Election Supervisor to ascertain. Only the
Judge and the Judge alone makes this determination.
- The preliminary inquiry made by a Prosecutor does not bind the Judge. It merely
assists him to make the determination of probable cause. The Judge does not have to
follow what the Prosecutor presents to him. By itself, the Prosecutors certification of
probable cause is ineffectual. It is the report, the affidavits, the transcripts of
stenographic notes (if any), and all other supporting documents behind the
Prosecutors certification which are material in assisting the Judge to make his
determination.
- The teachings of the cases of Soliven4, Inting5, Lim6, Allado, and Webb reject the
proposition that the investigating prosecutors certification in an information or his
resolution which is made the basis for the filing of the information, or both, would
suffice in the judicial determination of probable cause for the issuance of a warrant of
arrest.
- In the present case, nothing accompanied the information upon its filing with the trial
court. Clearly, when respondent Judge Asuncion issued the assailed order directing,
among other things, the issuance of warrants of arrest, he had only the information,
amended information, and Joint Resolution as bases thereof. He did not have the
records or evidence supporting the prosecutors finding of probable cause. And
strangely enough, he made no specific finding of probable cause; he merely directed
the issuance of warrants of arrest. It may, however, be argued that the directive
presupposes a finding of probable cause. But then compliance with a constitutional
requirement for the protection of individual liberty cannot be left to presupposition,
conjecture, or even convincing logic.
DUNGOG V CA
The Case
This petition for review on
certiorari
assails the
Decision
dated 14 May
1999 of the Court of Appeals in CAG.R. SP No. 48788, as well as the
Resolution dated 24 August 1999
denying the motion for
reconsideration. The Court of
Appeals dismissed outright the
petition for certiorari, prohibition
and mandamus filed by petitioner
Felipe Sy Dungog (Felipe) against
[if !supportFootnotes][1][endif]
[if !supportFootnotes][2][endif]
4 The Judge does not have to personally examine the complainant and his witnesses. The Prosecutor can
perform the same functions as a commissioner for the taking of the evidence. However, there should be a report
and necessary documents supporting the Fiscals bare certification. All of these should be before the Judge.
5 The supporting documents may consist of, viz., the affidavits, the transcripts of stenographic notes (if any), and
all other supporting documents behind the Prosecutors certification which are material in assisting the Judge to
make his determination of probable cause
6 The issuance of the warrants of arrest by a judge solely on the basis of the prosecutors certification in the
information that there existed probable cause, without having before him any other basis for his personal
determination of the existence of a probable cause, is null and void.
[if !supportFootnotes]
[4][endif]
[if !supportFootnotes][5][endif]
supportFootnotes][8][endif]
workedtotheprejudiceofplaintiffand
willcertainlyjeopardizethe
developmentworkinthedelivered
properties.Elementaryjusticeandthe
spiritoffairplaythusdictatethatthe
statusquoante,whichisthesituation
beforetheclosurewhenplaintiffs
representativeswereabletopass
throughLot1031F,berestored.
Insofarasdefendantsthreatened
cancellationofthecontracttosell,the
Courthasseenthatoutofthetotalarea
of131,040.95squaremeterscovered
bythecontract,plaintiffhadalready
paidfor102,496.69squaremeters,and
thatithaddepositedP4,048,950.00to
payforsomeoftheundelivered
parcels.Itisbutfairthatsuchamove
be,inthemeantime,disallowed.
[if!
supportFootnotes][9][endif]
[10][endif]
The Issue
In his Memorandum, Felipe
narrows the inquiry to -
MAYPETITIONERBEDEPRIVED
OFHISPROPERTYWITHOUTDUE
PROCESSOFLAWAND
PAYMENTOFJUST
COMPENSATIONFORTHE
BENEFITOFPRIVATE
RESPONDENT?
Felipe laments that the dismissal of
his petition resulted in the outright
confiscation of his property for the
private use of Gothong Lines,
without due process of law and just
compensation. Felipe claims that in
dismissing his petition, the Court of
Appeals effectively sustained the
trial courts Order divesting him of
his rights over Lot 1031-F.
The question of whether Gothong
Lines may demand the turn over of
the parcels of land listed in Annex
A of the Contract is not our concern
here. The issue in this petition is
whether the Court of Appeals erred
in dismissing Felipes petition.
The Courts Ruling
The petition is bereft of merit.
Dismissal by the Court of
Appeals of
Felipes petition was proper.
Felipe committed a procedural
blunder in filing a special civil
action for certiorari to assail the
Order and the Writ. Felipe was not
a party in Civil Case No. 5020-L.
He could not, therefore, assail the
writ of preliminary injunction
through a petition for certiorari
before the Court of Appeals. As
[if!supportFootnotes][11][endif]
respondentcourtinitsDecisionof
August20,1992recognizedthe
standingofMagdiwangtoassailinthe
appellatecourttheCompromise
Agreement.Again,thisruling
constitutesgraveabuseofdiscretion
forMagdiwangwasnotapartyin
interestinCivilCaseNo.Q35393.
The wisdom of this ruling is all too
apparent. If a person not a party to
an action is allowed to file a
certiorari petition assailing an
interlocutory order of the trial court,
such as an injunctive order and
writ, proceedings will become
unnecessarily complicated,
expensive and interminable.
Eventually, this will defeat the
policy of our remedial laws to
secure party-litigants a speedy and
inexpensive disposition of every
action.
Felipe could have simply
intervened
in the trial
court proceedings to enable him to
protect or preserve a right or
interest which may be affected by
such proceedings. A motion to
intervene may be filed at any time
before rendition of judgment by the
trial court.
The purpose
of intervention is not to obstruct or
unnecessarily delay the placid
operation of the machinery of trial.
The purpose is merely to afford
one, not an original party but
possessing a certain right or
interest in the pending case, the
[if !supportFootnotes][13][endif]
[if !supportFootnotes][14][endif]
[if !
supportFootnotes][16][endif]
[if
!supportFootnotes][18][endif]
[if !supportFootnotes][19]
[endif]
[endif]
[if !supportFootnotes][21][endif]
PEOPLE VS BERIALES
Facts:
On February 8, 1965, Primicia was
driving his car within the jurisdiction of
Urdaneta when he was found
violating Municipal Order 3, Series of
1964 for overtaking a truck. The
Courts of First Instance decided that
from the action initiated by Primicias,
the Municipal Order was null and void
and had been repealed by Republic
Act 4136, the Land Transportation
and Traffic Code
Issues:
1. Whether or not Municipal Order 3
of Urdaneta is null and void
2. Whether or not the Municipal Order
is not definite in its terms or
ambiguous.
Held:
1. Municipal Order 3 is null and void
as there is an explicit repeal in RA
4136 and as per general rule, the
later law prevails over an earlier law
and any conflict between a municipal
order and a national law must be
ruled in favor of the statute.
2. Yes, the terms of Municipal Order 3
was ambiguous and not definite.
Vehicular Traffic is not defined and
no distinctions were made between
cars, trucks, buses, etc.
HERNANDEZ VS ALBANO
SHORT VERSION:
Hernandez sought to enjoin the fiscals
ISSUE:
could the Manila fiscal be restrained
from proceeding with the investigation
of the charges against Hernandez?
REASONING:
By statute, the prosecuting officer of
the City of Manila and his assistants
are empowered to investigate crimes
committed within the city's territorial
jurisdiction. Not a mere privilege, it is
the sworn duty of a Fiscal to conduct
an investigation of a criminal charge
filed with his office. The power to
investigate postulates the other
obligation on the part of the Fiscal to
investigate promptly and file the case
of as speedily.
o A rule was formulated that
ordinarily criminal prosecution
may not be blocked by court
prohibition or injunction.
o However, in extreme cases, a
relief in equity could be availed
of to stop a purported
enforcement of a criminal law
where it was necessary: (a) for
the orderly administration of
justice; (b) to prevent the use of
the strong arm of the law in an
oppressive and vindictive
manner; (c) to avoid multiplicity
of actions; (d) to afford
adequate protection to
constitutional rights; and (e) in
proper cases, because the
statute relied upon is
unconstitutional, or was "held
invalid."
Commonwealth Act 626 provides the
penal sanction for a violation of
Constitution Art VII sec. 11(2): a fine of
not than P5000 or imprisonment of not
more than 2 years, or both.