Ons, %, : Ld Ni REPUBLIC OF THE PHILIPPINES aero Department of Justice Department of the Interior and Local Government Joint Department Order No. 003-2012 OPERATIONAL GUIDELINES FOR PROSECUTORS AND LAW ENFORCEMENT INVESTIGATORS IN EVIDENCE-GATHERING; INVESTIGATION AND CASE BUILD-UP; INQUEST AND PRELIMINARY INVESTIGATION; AND TRIAL OF CASES OF POLITICAL-ACTIVIST AND MEDIA KILLINGS. WHEREAS, Administrative Order No. 181, s. 2007, directs the cooperation and coordination between the National Prosecution Service (NPS) and other concerned agencies of government for the successful investigation and prosecution of political and media killings; WHEREAS, as per said Administrative Order, in order to ensure that political activist and media killings are effectively investigated and successfully prosecuted, there is a need for the law enforcement and prosecution arms of the government to cooperate and coordinate during all phases of the criminal proceedings; WHEREAS, said Administrative Order directs the Secretary of Justice and the Secretary of the Interior and Local Government to jointly formulate and issue an implementing rules and regulations necessary for carrying out the Administrative Order; NOW THEREFORE, in order to carry out the implementation of Administrative Order 181, the following operational guidelines are hereby prescribed and promulgated: Article I Definition of Terms Section 1. Basic Terms. For purposes of these Rules, the following definitions shall be observed: (a) “Political Activist” — refers to a person who is a legitimate and known member, or suspected to be a member, of an activist or militant organization in the Philippines; Page 1 of a1(b) “Political Activist Killing” — cases where the victim is targeted because of his political beliefs and affiliations, whether these beliefs or affiliations are real or merely suspected, and where there are reports or indications that state actors or agents are involved. In consonance with Supreme Court Administrative Order 25-2007, in determining whether the crime is a “political killing” the following factors, among others, shall be considered: i. Political affiliation of the victim; ii, Method of attack; and iii, Reports that state agents are involved in the commission of the crime or have acquiesced in them; (c) “Political affiliation” — the ideological affiliation, real or assumed by the perpetrators; (d) “Method of attack” — manner of killing is through the use of devices which conceal the identity of the assailants, or use of a means to flee the scene of the attack; use of treachery or means which tend directly and specially to insure the killing, without risk to the assailant, arising from the defense which the intended victim may raise. Legitimate military or police operations observing rules of engagement that result in casualties are excluded; (e) “State agents” — military, police, Citizen Armed Forces Geographical Unit, other law enforcement personnel; (f) “Media killings” — the killings of media practitioners ie. those who are engaged in media practice, including print, internet, radio broadcast or commentaries and television, that espouse critical or political issues against a particular party group or individual, and targeted by reason of his media work. Article II Investigation and Case Build-up Section 1. Initial Assessment and Reporting. When a killing occurs (or is attempted to be committed), the local law enforcement concerned (e.g., members of the local Philippine National Police [PNP] unit or National Bureau of Investigation [NBI] office), shall make an initial assessment within forty-eight (48) hours from deployment, Page 2 of 11whether or not the incident may be treated as a possible political-activist or media killing, based on the parameters defined under Administrative Order No. 181, s. 2007 (hereinafter referred to as A.O. No. 181). When the Chief Investigator of the local law enforcement agency, after making a preliminary assessment that the killing is neither a political- activist or media killing, shall prepare a report and submit the same to the Chief of Police, Provincial Director or Regional Director, furnishing a copy of the said report to the Regional Prosecutor having jurisdiction over the case. If, on the other hand, the local law enforcement agency finds that the incident is a possible political-activist or media killing, it shall prepare and give a report to the Chief of Police, Provincial Director or Regional Director and, thereafter, inform the designated prosecutor of the City/ Province/Region of said fact, for them to convene and continue with the investigation. Section 2. Designation of Prosecutors. The Regional Prosecutor shall issue a Regional Order designating prosecutor/s, as far as practicable, from the City/Province/Regional offices who will be the point persons tasked to assist in the case build-up and evidence gathering, and ensure that the said Order shall be furnished the law enforcement agencies concerned, in order to facilitate coordination. Section 3. Convening of Group. Upon receipt of the official report by all concerned entities that the incident is a possible political activist or media killing, one may call for a meeting and all shall agree to immediately convene and continue with the investigation. Other government agencies may be invited to provide assistance as may be deemed necessary. Section 4. Task and Duties of Group. The group of prosecutor/s and law enforcement investigators shall identify the witnesses, assist in the preparation of their affidavits, evaluate the Scene of the Crime Report and the other physical or object evidence necessary in the filing of the case with the prosecution office concerned. The group of prosecutor/s and law enforcement investigators shall designate which law enforcement agency shall act as evidence custodian. Page 3 of 11The group of prosecutor/s and law enforcement investigators shall submit periodic written reports of the progress of their investigation to the PNP Regional Director, NBI Regional Director, the Regional Prosecutor and Task Force 211 or its successor. Section 5. Official Pronouncements. For purposes of releasing official pronouncement to the media in relation to the case, the local police unit or local NBI unit spokesperson shall be designated as the official spokesperson to the exclusion of all other spokespersons. Any information released to the media shall be with the prior approval of the Chairman of Task Force 211 or its successor. Section 6. Withdrawal of Assisting Prosecutor. If, after evaluation of the attendant circumstances and available evidence, the group of prosecutor/s and law enforcement investigators determines that the killing is neither a political-activist nor media killing, a report shall be prepared and submitted to the PNP Regional Director, NBI Director, the Regional Prosecutor and the Chairman of Task Force 211 or its successor. Thereafter, the assisting prosecutor/s shall immediately withdraw from the case, even as the investigation shall continue and proceed. Section 7. Filing and Indorsement of Case. If the case investigated by the group of prosecutor/s and law enforcement investigators falls under the parameters defined in A.0. No. 181, the group shall, after the termination of the investigation, file the proper complaint before the City/Provincial Prosecutors office. It shall contain an indorsement signed by the law enforcement investigator concerned, indicating that the investigation was handled by the joint group of prosecutor/s and law enforcement investigators, pursuant to A.0. No. 181, as a probable case of political activist or media killing. Notwithstanding the referral of the case with the appropriate prosecution office, the group shall continue to convene for the purpose of evaluating and gathering additional evidence necessary to further strengthen the case. Page 4 of 11Section 8, Terminal Report. Immediately after the filing of the case with the appropriate prosecution office, a Terminal Report containing the findings of the group of prosecutor/s and law enforcement investigators shall be submitted to the Prosecutor General who shall, within a period of two (2) days from receipt of said report, inform the Chairman of Task Force 211 or its successor. The police/NBI investigator, on the other hand, shall furnish a copy of the said terminal report within the same period to the PNP Regional Director and to the Director of the NBI In the event of any pressures exerted on the Assisting Prosecutor/s or on the police/NBI investigators, they shall immediately report said fact to their superiors, as enumerated above, in order that the appropriate action may be taken, as the circumstances demand. Section 9. Financial and Logistical Support. Financial and other logistical support shall be made available to the group of prosecutor/s and law enforcement investigators in the course of their investigation. The law enforcement agency concerned shall likewise provide security to the prosecutor designated to assist in the investigation. Section 10. Recommendation to Witness Protection Program. The group of prosecutor/s and law enforcement investigators may recommend the immediate or conditional admission of witnesses into the Witness Protection, Security and Benefit Program (WPSBP) in order to ensure their safety and security. The WPSBP shall give priority to the processing and admission of the witnesses concerned. Article III Inquest Section 1. When Commenced. The inquest proceedings shall be deemed to have commenced upon receipt by the Inquest Prosecutor of the: a) affidavit of arrest duly subscribed and sworn to before him by the arresting officer/s; Page 5 of 11b) the investigation report; c) sworn statements of the complainant/s and their witnesses; and d) other supporting pieces of evidence gathered by the police in the course of the latter's investigation of the criminal incident involving the arrested person. Section 2. Additional Documents Required. The inquest prosecutor shall, as far as practicable, in addition to the above-enumerated documents, require the submission/presentation of the documents listed below, to wit: © Certified true/ machine copy of the certificate of death of the victim; and * Autopsy report and the certificate of post-mortem examination, if available. Section 3. Inquest Proper. Determination of Propriety of Arrest During the inquest proceedings, the Inquest Prosecutor shall first determine if the arrest of the detained person/s was made in accordance with the provisions of Sections 5, sub-paragraphs (a) and (b) of Rule 113 of the Revised Rules on Criminal Procedure. 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/s arrested or detained; * prepare a resolution indicating the reason for the action taken; and * forward the same, together with the records of the case to the Prosecutor General, City/Provincial Prosecutor for appropriate action. When the recommendation for the release of the arrested/detained person is approved by the Prosecutor General, City or Provincial Page 6 of 11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 concerned having custody of the arrested/ detained person; * serve upon the arrested/detained person, the subpoena or notice of preliminary investigation, together with the copies of the charge sheet or complaint, affidavit or sworn statements of his witnesses and other supporting evidence. If, on the other hand, the Inquest Prosecutor finds that the arrest was done in accordance with the provisions of Section 5, sub-paragraphs (a) and (b) of the Revised Rules on Criminal Procedure, he shall ask the arrested/detained person if he desires to avail himself of a preliminary investigation. If he does, the consequences thereof must be adequately explained to him in a language or dialect known to him. Section 4. Waiver of Provisions of Article 125 of RPC. The arrested/detained person, with the assistance of counsel of his own choice, shall then be made to execute a waiver of the provisions of Article 125 of the Revised Penal Code (RPC). In the event that the arrested/detained person does not have a counsel to assist him/her, then the Inquest Prosecutor shall exert efforts to coordinate with the Public Attorney's Office in his area to ensure that the rights of the arrested/detained person are amply protected. If the arrested/detained person refuses to execute a waiver of the provisions of Article 125 of the RPC, the inquest Prosecutor shall immediately proceed to resolve the case on the basis of the evidence presented by the complainant. If, on the other hand, the arrested /detained person executes a waiver of the provisions of Article 125 of the RPC, the preliminary investigation shall continue and be terminated within fifteen (15) days from its inception. Section 5. Counter-Affidavit. The arrested/detained person/s shall be required to file his/her/their counter-affidavit and the affidavit of his/her/their witnesses within a period of ten (10) days from receipt of the complaint sheet and its attachments from the Inquest Prosecutor. Immediately thereafter, the Inquest Prosecutor shall proceed to resolve the case. No Reply or Rejoinder Page 7 of 11shall be allowed and neither shall motions for extension of time to file Counter-Affidavit or Affidavits of witnesses be entertained. Section 6. Discussion of Nature of Case. In preparing the resolution, the Inquest Prosecutor shall state that the case involves a political-activist/media killing, and provide the appropriate discussions therefor. The recommendation of the Inquest Prosecutor shall be submitted to the Prosecutor General, City or Provincial Prosecutor within three (3) days from the time it was submitted for resolution. If the Inquest Prosecutor finds that probable cause exists, he shall, in addition to the preparation of the resolution, also prepare the corresponding information and submit the same to the Prosecutor General, City or Provincial Prosecutor for his/her approval. Article IV Regular Preliminary Investigation Section 1, Subpoena and Counter-Affidavit. Upon receipt of the complaint, the Prosecutor General, City or Provincial Prosecutor shall immediately assign the complaint to an Investigating Prosecutor, who shall issue subpoena within two (2) days from receipt of the assigned case and require the respondent/s to submit counter-affidavit within ten (10) days from receipt thereof. To obviate any requests for extension of time to file Counter-Affidavit, the Investigating Prosecutor shall, in addition to the subpoena, include all attachments and have the same personally served by the process server or by the law enforcement unit that handled the investigation. Section 2. Duration of Preliminary Investigation. The Investigating Prosecutor shall terminate the preliminary investigation within thirty (30) days from receipt of the complaint. No Reply/Rejoinder shall be entertained. No motions for extension of time shall be allowed. Page 8 of 11Section 3. Submission of Resolution and Information. The Investigating Prosecutor shall submit the resolution for the approval of the Prosecutor General, City or Provincial Prosecutor within five (5) days from the time the case is submitted for resolution. If the resolution contains a finding of probable cause, then the Investigating Prosecutor shall likewise prepare the corresponding information and submit the same to the Prosecutor General, City or Provincial Prosecutor for approval. The Prosecutor General, City or Provincial Prosecutor shall act on the recommendation of the Investigating Prosecutor within two (2) days from receipt of the same. Section 4. Transmittal of Information to Court. In case where probable cause exists, once the resolution has been approved by the Prosecutor General, City or Provincial Prosecutor, the transmittal to the appropriate Office of the Clerk of Court shall state that the case is either a political-activist or media killing, as provided under Supreme Court Administrative Order No. 25-2007, and, therefore, should be raffled to any of the designated special courts. Article V Trial Proper Section 1. Coordination among Trial Prosecutor, and Assisting Prosecutor and Law Enforcement Investigator. Once the case has been raffled off to the proper court, the Trial Prosecutor shall immediately coordinate with the Assisting Prosecutor and the law-enforcement investigator (from the PNP/NBI). He shall also submit a report of the fact of raffle to the Prosecutor General, City or Provincial Prosecutor, as well as to the Chairman of Task Force 211 or its successor. Periodic reports shall also be submitted to the above-named officials informing them of the status and progress of the case. Sec 2. Creation of Panel of Prosecutors. As far as practicable, the Prosecutor General, City or Provincial Prosecutor shall create a panel of prosecutors composed of the Assisting Prosecutor, Investigating Prosecutor and the Trial Prosecutor for the Page 9 of 11purpose of handling the actual prosecution of the political-activist/media killing case. Section 3. Pre Trial and Trial. In the course of the pre-trial and trial, the panel of prosecutors shall ensure that: * they prepare a pre-trial brief containing a brief summary of the facts, the applicable laws and jurisprudence, proposals for stipulation and request for admissions of facts, the list of witnesses and a synopsis of their testimonies, a list of the exhibits that will be marked and a proposed schedule for the presentation of the prosecution's witnesses; © case conferences are set with the Assisting Prosecutor, the law enforcement investigator and the witnesses for the prosecution at least three (3) days before the scheduled trial date; and * at least two (2) witnesses for the prosecution are available every scheduled hearing date. Section 4. Plea Bargaining. No plea bargaining shall be allowed without the prior written consent of the Prosecutor General, City or Provincial Prosecutor. Section 5. Duration of Trial. The presentation of evidence for both the prosecution and the defense shall, as far as practicable be terminated within sixty (60) days. Article VI Separability Clause and Effectivity Section 1. Separability. If any section or part of these Operational Guidelines is held invalid or unconstitutional, the remainder not otherwise affected shall remain valid and subsisting. Page 10 of 11Section 2. Effectivity. These Guidelines shall take effect immediately. The internal rules of procedures of PNP and the NBI shall be supplemental to this Operational Guidelines. ORDERED. 5 November 2012. LEILA M. DE Hu MAR ROXA: c Secretary Secretary Department of Justice Department of Interior and Local Government are wiiaaicvm @® ADM Page 11 of 11