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Revised
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MANUAL for

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II PROSECUTORS
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Special Sections on Human Rights and Tax Cases
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2008

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II tl EP,i\RTMENT OF JUSTICE
FOil( GFEC~AL USE ONLY
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I Published by the National Prosecution Service, Department of Justice, Manila, Philippines with funding
support from the United States Agency for International Development through its Rule of Law Effectiveness

I Project, The Asia Foundation, Miilenium Challenge Account - Philippines Threshold Program, Technical
Assistance Project and the Asian Development Bank.

I Copyright © 2008 by DOJ-NPS. All rights reserved.

ISBN 978-971-561-753-6

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2 Revised Manual for Prosecutors
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CONTENTS
I
FOREWORD 19
I ACKNOWLEDGMENT 21

I PART I: PROSECUTION OF OFFENSES 23

I I. GENERAL PRINCIPLE 23

I II. DEFINITION OF TERMS 23

Ill. GENERAL RULES 26


I A. COMPLAINT 26
1. Form of the Complaint Filed Before the Prosecutor's Office 26
I 2. Policy on Forms of Complaint Filed With the Prosecutor's Office
3. Persons Authorized to File Compiaints
26
27
4. Law Enforcement Officers/Public Officers Authorized to File
I Criminal Complaints
5. Institution of Criminal Action; How and Where Commenced
29
30

I 6. Place Where Criminal Action is to be Instituted


7. Who Prosecutes Criminal Actions
30
31

I B. INFORMATION
1. The Information Need Not be Under Oath; Matter Which a
31

Prosecutor Must Certify Under Oath in the Information 32

I 2. Contents of the Caption of an Information 32

C. RULES COMMON TO BOTH A COMPLAINT


I AND AN INFORMATION
1. Sufficiency of a Complaint or an Information
32
32
a. the name of the accused 32
I b. the designation of the offenses committed
Examples of Conclusions of Law
33
33
Examples of Averments of Ultimate Facts 34
I c. the cause of the accusation
d. place where the offense was committed
35
35

I e. date of the commission of the offense


f. name of the offended party
36
36
2. Other Essential Matters to be Alleged in the Complaint

I or Information 36

, 3. Number of Offenses Charged

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I 4. Title of the Complaint or Information
5. Qualifying and Generic Aggravating Circumstances; To be
37

Alleged and Proved 38


I 6. List of Prosecution Witnesses
7. Amendment of the Complaint or Information
38
38
a. before the accused pleads 38
I b. after the accused pleads
c. during the trial...
38
39

I 8. Amendment by Substitution
a. Requisites for the substitution of a defective information
with the correct one
39

39
I I 9. Prescriptive Period; How Computed and Interrupted
a. for an offense penalized under the Revised Penal Code
40
40
b. for violation of a special law or ordinance 40

I c. for cases falling within the jurisdiction of the Katarungan


Pambarangay 41

I IV. RELEVANT JURISPRUDENCE 41

I PART II: INQUEST 44

1. GENERAL RULES ....•................•.........••....•....•..........•.........................•.. 44


I A. Concept 44
B. Coverage :·.: 44
I C. Designation of an Inquest Prosecutor
D. Venue ofInquest Cases
44
44
E. Date and Time of the Conduct ofInquest Proceedings 45
I n. PROCEDURE 45

I A. COMMENCEMENT OF THE INQUEST PROCEEDINGS ....•.. 45


I. When Commenced 45
2. Documents Required in Specific Cases 45
I 3. Incomplete Documents ,
4. Instances Where the Presence of the Detained Person is
48

Dispensed With 48
I 5. Charges and Counter-charges
6. Determination of the Arrest by the Inquest Prosecutor Meaning
48

'I of Probable Cause in Inquest Cases


7. Where Arrest of the Detained Person Was Not
Properly Effected
48

49

I 8. Where the Arrest of the Detained Person Was Properly


Effected ' 50

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B. INQUEST PROPER 50
I 1. Contents of the Information
2. Action to be Taken When There is an Absence of
51

I Probable Cause
3. Action to be Taken When the Arrested Person Executes a
Waiver of Article 125 of the Revised Penal Code
51

52

I 4. Posting of Bail by the ArrestedlDetained Person


a. If offense is bailable
52
52
b. If offense is non-bailable 52
I I 5. Termination of Inquest Proceedings 52

Ill. OTHER MATTERS 53

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


B. Sandiganbayan Cases
53
54

I C. Absence or Unavailability of the Inquest Prosecutor


D. Recovered Articles
1. Responsibility of the Inquest Prosecutor
54
54
54

I 2. Deposit of Recovered ArticleslProperties


E. Release of Recovered Articles
55
55

I
I rv RELEVA1'1T JURISPRUDENCE 55

I V. HELPFUL HINTS 57

TEMPLATES OF INQUEST FORMS 59


I NPS Investigation Form No. 01, s. 2008 - Investigation
Data Form 60
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I NPS INQ Form No. 01, s. 2008 - Order to Submit
Additional Evidence! Documents 62
NPS INQ Form No. 02, s. 2008 - Release Order of
I I Detained!Arrested Person
NPS INQ Form No. 03, s. 2008 - Subpoena to Respondents
64
66

I NPS INQ Form No. 04, s, 2008 - Request for Preliminary


Investigation and Waiver ofArticle 125,
Revised Penal Code 67

I NPS INQ Form No. 05, s. 2008 - Certification


NPS INQ Form No. 06, s, 2008 - Release Order of
68

Recovered Articles 69
I NPS INQ Form No. 07, s. 2008 - Request for Release
with Undertaking 71

I
, FLOWCHART OF THE INQUEST PROCEEDINGS

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73

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PART Ill: SUMMARY INVESTIGATION 74
I I. GENERAL RULES ..........................................................•....................... 74

I A. Concepts and Principles


B. Coverage
74
74

I II. PROCEDURE 76

I PART N: PRELIMINARY INVESTIGATION 77

II I. GENERAL RULES 77

A. Concepts and Principles ' 77

I B. Nature of a Preliminary Investigation


I. It is an Executive Function
77
77

II 2. It is Preliminary in Nature
3. It is a Summary and Inquisitorial Proceeding
77
77
4. It is a Judicial Inquiry or Proceeding 78
C. Right to a Preliminary Investigation ., 78

II 1. It is Not a Constitutional Right


2. It is Merely a Statutory Grant..
78
78
3. It is a Personal Right... 78
I 4. It is a Substantive Right
D. Coverage
79
79
E. Quantum of Evidence Required 79
\1 I. "Probable Cause" Defined
2. No Fixed Formula for Determining Probable Cause
79
80

I 3. Sound Discretion of the Prosecutor


F. Purposes of the Conduct of a Preliminary Investigation
80
81
G. Officers Authorized to Conduct Preliminary Investigations 81

II
I II. PROCEDURE 83

I A. Commencement of the Preliminary Investigation


a. Contents of the Complaint
83
84

\1 b. Number of Copies ofAffidavits; Other Requirements


B. Initial Action by the Investigating Prosecutor on the
Complaint Filed
84

85

I C. Service of the Subpoena Together with the Complaint and


Supporting Affidavits and Other Documents to the Respondentls 86
1. To Prevent Loss of Documents 86
I 2. Service to a Respondent Residing in a Distant Place 87

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3. Where Respondent Cannot be Subpoenaed or if Subpoenaed
I Does not Submit Counter-Affidavit
4. Objects as Evidence
87
87
5. Guidelines to be Observed in the Service of Subpoenas 87
I D. Submission of the Counter-affidavits by the Respondent/s
1. Extension of Time Within Which to Submit
88

Respondent's Counter-Affidavit... 89
I 2. Filing of a Motion to Dismiss, Memorandum or Motion
in Lieu of a Counter-Affidavit 89

I a. General Rule
b. Exceptions
3. Effect of the Filing of a Motion to Dismiss or a Motion for a
89
90

I Bill of Particulars and Other Similar Pleadings


4. Action on Motions to Dismiss on the Basis of an Affidavit of
90

Desistance 90
I 5. Suspension of Proceedings Due to the Existence of a
Prejudicial Question 91
a. Concept of a Prejudicial Question 91
I b. Elements of a Prejudicial Question
c. Issuance of an Order Suspending the Proceedings Due
91

to the Existence of a Prejudicial Question; Written Approval


I of the Head of Office Required
E. When to Set Case for Clariiicatory Questioning
91
92
1. No Right to Examine or Cross-Examine 92
I I 2. Records/Notes During the Clarificatory Hearing 92

I I 3. No Right to Counsel...
F. Reply-Affidavits, Rejoinders and Memoranda;
When to Allow the Filing Thereof..
92

93
G. When Complaints May be Consolidated 93
II H. Actions on Motions to Disqualify/Inhibit
1. Submission of the Case for Resolution
94
94

I I
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
iI a. Caption of Resolution
b. Names of Parties
95
95

II c. Case Number
d. Designation of Offense/s Charged
e. Contents of the Body of the Resolution
96
97
97

I f. Parts of a Resolution
g. Parties Who Need to be Furnished a Copy of the Resolution
97
98
h. Signatures and Initials of Investigating Prosecutor 98
I 4. Period to Conduct the Preliminary Investigation 99

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I 5. Written Approval Required in the Dismissal of a Complaint or
the Filing of an Information in Court 99

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K. Transmittal of the Recommendatory Resolution and Information
Together with the Complete Record of the Case ~
1. Preparation of the Information and its Contents
99
99
a. lack of a certification 100
I b. designation of offense not binding upon the court
2. Recommended Bail; How Written
100
101

I 3. Documents to be Attached to the Information


4. Confidentiality of Resolutions
101
101
1. Action of the Chief State/Regional State/Provincial/City Prosecutor
I on the Recommendatory Resolution
M. Re-opening of the Preliminary Investigation
101
102
N. Promulgation of the Resolution; Modes of Service 102
I O. Filing of the Information in Court; Rules to Follow
P. Action on a Motion for Reconsideration
103
103
Q. Action on a Reinvestigation 103
I I. Instances Where a Reinvestigation May be Conducted
a. pursuant to a court order for cases already filed in court
104
104

I b. pursuant to an order or directive from the


Regional State Prosecutor or the Secretary of Justice 104
III. RELEVANT JURISPRUDENCE 105
I
I TEMPLATES & SAMPLE FORMATS USED IN THE
CONDUCT OF THE PRELIMINARY INVESTIGATIONS 107

I NPS INV Form No. 01, s, 2008 - Investigation Data Form


NPS INV Form No. 02, s. 2008 - Resolution Dismissing
the Complaint...
108

110

I NPS INV Form No. 03, s. 2008 - Subpoena to Complainant


NPS INV Form No. 04, s, 2008 - SUbpoena to Respondent/s
112
113
NPS INV Form No. 05, s, 2008 - Subpoena to Respondent to
I Obtain Copies of the Complaint
and Other Supporting Evidence 114
NPS INV Form No. 06, s. 2008 - Order Suspending the
I Preliminary Investigation Proceeding
Due to a Prejudicial Question 115
NPS INV Form No. 07, s, 2008 - Subpoena for
I Clarificatory Hearing
NPS INV Form No. 08, s, 2008 - Order of Consolidation
116
117

I NPS INV Form No. 09, s. 2008 - Regional Order Designating a


Prosecutor to Conduct the Preliminary Investigation 118

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Sample Resolution...••.....•...............•.........•....•....•....•.•....••....•........•.119
I Sample Information I
Sample Information 2
123
125
Sample Information 3 , 127
I Sample Information 4 129

NPS SAl'\fPLE FORMAT "A", s. 2008 - Order for the


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

I FLOWCHART OF THE PRELIMINARY INVESTIGATION PROCESS


Flowchart 1 134

I Flowchart 2
Flowchart 3
'" 135
136

I PART V: ARRAIGNMENT AND PLEA. 137

I I. GENERAL RULES .•..•.•..•....•..•...•.•.••.•...............................•.............•..... 137

A. Principles 137

I B. Concepts............................................................................................ 137

n. PROCEDURE .....•.........•...........•.•............•...........................................• 137


I I A. Duties of the Trial Prosecutor ,
1. Before the Arraignment of the Accused
137
137
I I 2. During the Arraignment
3. After the Arraignment
138
138
B. Effect of the Filing of a Petition for Review 138

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I 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
I I Ill. RELEVANT JURISPRUDENCE 139
I I
PART VI: PRE-TRIAL...•...•.•..•..•.....•........•...•.•...••...•.....•....•......•.........•.... 140

I I I. CONCEPT 140

I n. SUBJECT MATTERS OF A PRE-TRIAL CONFERENCE 140

A. Plea Bargaining 140


I B. Stipulation of Facts 140

, C. Marking for Identification of Evidence of the Parties

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141

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I . D. Waiver ofObjeetions to the Admissibility of Evidence 141

I E. Modification of the Order of Trial


F. Such Other Matters
141
141

I III. NON-APPEARAt~CEAT THE PRE-TRIAL CONFERENCE ..•... 141

IV. DUTIES OF THE PROSECUTOR AT THE


I PRE-TRIAL CONFERENCE 141

A. Before the Pre-trial Conference 141

I B. During the Pre-trial Conference


C. After the Pre-trial Conference
141
142

I V. RELEVANT JURISPRUDENCE 142

I PART Vll: BAIL 143

I I. CONCEPTS

A. Purpose of Bail...
143

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

I II. DUTIES OF THE PROSECUTOR 144

A. When Bail is a Matter of Right 144


I B.
C.
When Bail is a Matter of Discretion
Right to Notice, Mandatory
145
145
D. Right to Bail in Inquest Cases 146
I E: Guidelines in Recommending Bail...
F. Criteria in Recommending the Amount of Bail
146
146
G. Rules in Computing the Bail to be Recommended 147
I H. Hearing on Petition for Bail in Non-bailable Offenses
1. Exception to the Rule on Non-bailable Offenses
149
149

I J. Right of the Prosecution to Present all Evidence During the


Bail Hearing
K. Effect of a Denial of the Opportunity to Present Evidence for
149

I Purposes of the Petition for Bail.;


L. Petition for Bail in Continuous Trial
149
149
M. Cancellation of the Bail Bond 150
I m. OTHER MATTERS 150

A. Release on Recognizance; Guidelines 150


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B. Requirements for the Grant of recognizance
Under R. A. No. 6036 150

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I IV. RELEVANT JURISPRUDENCE 151

I Part VITI: ARREST 152

I. Remedy of the Prosecutor When no Warrant ofArrest was


I Issued by the Judge 152

I II. Request for a copy of the Return 152

m. Relevant Jurisprudence 152


I
I PART IX: TRIAL 153

I. GENERAL RULES , 153


I A. Concept 153
B. Coverage 153

I 11.TRIAL PREPARATION 153

A. Preparation of the Trial Brief'.. 153


I B. Order of Presentation of Witnesses
C. Offer of Exhibits
153
154

I D. Defense Evidence
E. Discharge of Accused to be State Witness
F. Admission to the Witness Protection Program of an Accused
154
154

I Who Has Been Discharged


G. Other Persons Who May Avail of the Witness Protection Program
155
155
H. Motions for Postponement by the Accused 156
I 1. Discontinuance of Proceedings
J. Presentation of Evidence
156
156

I m. PROCEDURE
A. Continuous Trial until Terminated
157

157

I B. Order of TriaL..................................................................................
C. Presentation ofWitnesses
157
158
D. Conditional Examination of Witness for the Prosecution 159

I E. Cross-Examination of the defense Witness


F. Rebuttal Evidence
159
159
G. Request for Subpoena 159
I H. Custody of Physical and Real Evidence Pending Trial., 159

IV. RELEVANT JURISPRUDENCE 160

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PART X: APPEAL/PETITION FOR REVIEW 162
I I. GENERAL RULES 162

I A. What May be Appealed


B. Venue for the Filing of the AppealJPetition for Review
162
162

I C. Period to File the AppeallPetition for Review


D. Form and Contents
E. Documentary Attachments
162
163
163

I F. Effect ofFailure to Comply with the Requirements


G. When an Information has Been Filed in Court
164
164
H. When Accused!Appellant is Arraigned During the

I Pendency of the Appeal/ Petition for Review


1. Appellee's Comment
164
164
J. Summary Action 164
I K. Withdrawal of the AppeallPetition for Review
1. Motion for Reinvestigation Pending Appeal
164
165
1. When an Information Has Not Yet Been Filed in Court 165
I 2. When an Information Has Been Filed in Court
M. Disposition of the AppeallPetition for Review
165
165

I N. Motion for Reconsideration


O. Effect of Filing the AppealJPetition for Review
166
166

II. RELEVAt"1T JURISPRUDENCE 166


I
I PART Xl: MISCELLANEOUS MATTERS 168

L HOLD DEPARTURE ORDERS AGAINST ACCUSED PERSONS.......168


I II. CANCELLATION OF TRAVEL DOCUMENTS 168

I m. HANDLING OF CRIMINAL COMPLAINTS FILED


AGAINST PUBLIC OFFICERS AND EMPLOYEES 169
I IV. NOTIFICATION OF PROSECUTOR OF THE FILING OF
AN APPLICATION FOR PROBATION 169
I A. Comment on the Application for Probation 169
B. Release ofApplicant for Probation 170
I C. Objection to the Grant of Probation
D. Hearing for Revocation of Probation
170
171

I V. PROCEDURE IN CASES INVOLVING CHILDREN 171

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A. Inquest Proceedings , 171

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r 1. If the Child is the Complainant. 171


I 2. If the Child is the Suspect
3. Guidelines in the Conduct of all Inquest Proceedings Involving
172

I aChild :
B. Preliminary Investigations
173
174
1. If the Child is the Victim 174

I 2. If the Child is the Respondent...


C. Protective Custody of the Child
175
175
D. Termination of InquestJPreliminary Investigation 175
I
VI. PROCEDURE INVOLVING VICTIMS OF TRAFFICKING IN PERSONS

I AND VIOLENCE AGAINST WOMEN AND TIIEIR CHILDREN .._176

A. Preliminary Investigation 176

I B. Evidence Gathered/Built-up by the Law Enforcer; Need to Check.


C. Prosecution Guidelines
177
178

VII. PROCEDURE FOR TIIE FILING OF A PETITION FOR CERTIORARI


I THROUGH TIlE OFFICE OF THE
CHIEF STATE PROSECUTOR..•.................•.•.....•.••.............................. 178

I A. When to File Petition for Certiorari


B. Coverage
178
178
C. Period to File the Petition 178 .
I D. Action to be Taken by the Trial Prosecutor..
E. Action of the Chief State Prosecutor
179
180

I vm, HANDLING OF ENVIRONMENTAL CASES.............•.........•..•.. 180


A. REVISED FORESTRY CODE (PD 705) 180
I 1. Evidence Required
2. Pointers
180
182

I B. TOXIC SVBSTAJ~CESAJ~ HAZARDOUS WASTE ACT


(R. A. No. 6969) .•.•........••...••.......•..•......•.••.........•.......•••...•.•.........•.... 183
1. Evidence Required 183
I C. PEOPLE'S SMALL SCALE MINING ACT (R.A. No. 7076) 183

I 1. Evidence Required 183

D. PHILIPPINE MINING ACT (R. A. No. 7942) 183

I 1. Evidence Required
2. Pointers
183
184

I E. CLEAN AIR ACT (R.A. No. 8749) 184

, 1. Pointer.......................................................................................... 184

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I F. ECOLOGICAL SOLID WASlE MANAGEMENTACT (RA9003)_185

I 1. Pointer 185

G. WILDLIFE CONSERVATION AND PROTECTION ACT


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

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


1. Evidence Required
187
187

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


1. Evidence Required
187
187

I 2. Pointer

IX. PROSECUTION OF MONEY LAUNDERING CASES


188

188

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

I
SPECIAL SECTION ON PROSECUTING HUMAN RIGHTS VIOLATIONS

I AND PROVIDING AVAILABLE REMEDIES THEREFOR ..••••... 191

LIN GENERAL 192


I A. Structure 192
B. Summative Checklist... 192
I II. PROSECUTING CASES OF TORTURE 198

A. Background 198
I Definition
B. Dealing With Torture Under Substantive Law
198
199

I I. Unconstitutionality
2. Direct Criminal Prosecution for Maltreatment of Prisoners
199

(Article 235, Revised Penal Code) 199

I 3. Separate and Simultaneous Criminal Actions


4. Prosecution Under the Human Security Act (R. A. No.9372)
200
206
5. Resort to Generic Remedies for Human Rights Violations 206
I C. Dealing With Torture Under Procedural Law
I. Inadmissibility in Evidence Under the Constitution
207
207
2. Detection of Torture at the Inquest Stage 207
I 3. Treatment of Torture at the Trial Stage 208

m. PROSECUTING CASES OF ENFORCED DISAPPEARANCE... 209


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A. Background 209

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B. Remedies Available Under Ordinary Actions 210
1. Avaiiment of Generic Remedies for Human Rights Violations 210

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2. Criminal Actions 210
C. Remedies Available for Information Gathering 211
I _. I. Rationale 211
2. Right to Information; extent tbereof.. 212

I I 3. Right to Information; Limitations Thereto


4. Availing oftbe Rule on the Writ of Habeas Data
213

(A.M. No. 08-1-16-SC, January 22, 2008) 214


I D. Remedies Available for Compelling Official Action or Response
1. Rationale
218
218

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2. Availing of the Rule on the Writ of Habeas Corpus
(Rules of Court, Rule 102)
3. Availing of the Rule on the Writ ofAmparo
219

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


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I rv PROSECUTING CASES OF EXTRALEGAL Kll..LING.....•.•.•..... 227
!I A. Background
B. Availing of the Writ of Amparo as a Protective Measure
227
228
C. Remedies Available for Information Gathering 229
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D. Avaiiment of Generic Remedies for Human Rights Violations
E. Prosecution under the Human Security Act...
229
230
F. Criminal Actions 230

II V. PROSEClJTING CASES OFINVOLVNTARYDISPLACEMENT .... 231

!I A. Background
B. Guidelines in the Delimitation of the Right of Abode and Right
231

to Freedom of Movement.. 232

II
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C. Remedies Available for Violation
1. Action for Damages Under the Generic Remedies for
232

Human Rights Violations 232


I 2. Criminal Action for Expulsion (Art. 127, Revised Penal Code)
3. Criminal Action for Grave Coercion
233

I I (Art. 286, Revised Penal Code) 233

VI. GENERIC REMEDIES FOR HUMAN RIGHTS VIOLATIONS •.. 233

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

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I C. Filing a Claim Before the Boards of Claims of the Department of Justice

I under the Victim Compensation Act (R. A. No. 7309)


I. Legal Basis
236
236
By Whom Filed '" 236

I Procedure for Filing Claims


Procedure for Processing of Claims
236
237
Time Period 238
I Relief That May be Granted 238

I SPECIAL SECTION ON PROSECUTING VIOLATIONS OF THE NATIONAL


INTERNAL REVENUE CODE (NIRC) & RELATED LAWS 239

I I. POINTERS IN THE PROSECUTION OF TAX CASES ...•.....•.....••.. 240

I II. INSTITUTION OF CRIMINAL CASES.•...•.........................•.........•.. 241

A. Prosecution of Criminal Actions .., 241


B. Bail 241
I C. Pre-trial 241

III. COMMON TA."X OFFENSES (UNDER THE NIRC) 241


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

I B. Sec. 255. Failure to File return, Supply Correct and Accurate Information,
Pay Tax Withheld and Remit Tax and Refund Excess Taxes Withheld on
C ompensation 244
I 1. Elements of Sec. 255
2. Documentary Evidence Required
: 244
244

I 3. Expenditure MethodlNet Worth Method


4. Revised Penal Code Provision on Malversation to Willful
245

Failure to Remit 245

I 5. Art. 222 - Officers Included 246

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

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

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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
I 1. Elements of Sec. 267
2. Documentary Evidence Required
250
250

I F. Sec. 236(J), last par. - Securing More Than One TIN.••....•..•....•... 251
l. Elements of Sec. 236(J) 251

I 2. Documentary Evidence Required

rv RELEVANT JURISPRUDENCE IN ESTABLISHING INTENT AND


252

I WILLFULNESS IN TAX CASES

A. IntentIWillfulness in Criminal Law


252

252
B. Philippine Jurisprudence on IntentIWillfulness in Tax Cases 253
I l. Supreme Court Decisions
2. Court of Tax Appeals Decisions
253
257

I 3. Regional Trial Court (RTC) Decisions


C. Challenges in Proving Intent and Willfulness in Tax Cases
259
260
D. Proof of Willfulness in U. S. Jurisprudence ........•....•..•.•......•.....•.. 261

I l. Proof of Willfulness - Failure to File Returns .,


2. Proof ofWillfulriess - Attempt to Evade or Defeat Tax
261
261

I 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
I Information, Pav Tax Withheld and Remit Tax and Refund Excess
Taxes Withheld on Compensation 272

I C. Sec. 257 (B)(8) - Knowingly Use Fake Certificate Authorizing


Registration
D. Sec. 258. Unlawful Pursuit of Business
276
281

I E. Sec. 267. Declaration Under Penalties of Perjury


F. Sec. 236(J). Securing More Than One TIN
285
289

I SAMPLE FORMATS 293

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


I Hold-Departure Order)
NPS Sample Format No. D-l - Memorandum for the Secretary of
294

I Justice through the ChiefState/Regional State/ProvinciallCity


Prosecutor for the Cancellation of PassportfTravel Document
ofan Accused Who Jumped Bail and Has Fled the Country) ... 296

I NPS Sample Format No. D-2 - Letter to the Secretary ofForeign


Affairs for the Cancellation of Passport/Travel Document of
an Accused Who Jumped Bail and has Fled the Country) ..... 297

I.·:',·..··
Revised Manual for Prosecutors 17
I ". . f.~'.',:- '-.
'-'i-c'
;-~~:.
I
,I ' APPENDICES
I 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

I Otherwise Known as the "Juvenile Justice and Welfare Act


of 2006" 300

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


Cases Involving RA 9165 (Comprehensive Dangerous Drugs
Act of2002) 303
I Appendix "c" - D.O. No. 318, s. 1991 - Defining the Authority, Duties
and Responsibilities of Regional State Prosecutors 304
I Appendix "D" - D.O. No. 54, s. 1992 - Amending D.O. No. 318, s. 1991

I by Specifying the Instances Where a Regional State Prosecutor


can Designate an Acting City or Provincial Prosecutor to Handle
the InvestigatioIliProsecution of a Particular Case 308

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


Qualifying Circumstances in all Informations or
I Complaints Filed In Court) 309

Appendix "F" - D.C. No. 47, s. 2000 (Preparation ofa Trial Guide)... 311
I Appendix "G" - D.C. No. 26, s. 2008 (Jurisdiction to Conduct Preliminary
Investigation of Cases Against Public Officers/Employees) 313
I Appendix "H" - Guide for Media Practitioners on the Reporting
_ and Coverage of Cases Involving Children .., 316
I Appendix "I" - Participants of the Validation Sessions 324

I
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I, 18 Revised Manual for Prosecutors

I 1
8.;;1;""'" ~at
It was in 1996 the first Manualfor Prosecutors ofthe D.epartment ofJu~tice was
"'" ,. issued as a unified guide for prosecutors m their day-to-day services to the public. In the

I>
'C:' 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
I those involved in this project.

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

II I thank all those who have labored and partnered with the Department for the de-
velopment and production of this Manual. May you continue with such noble work for

I the Filipino people, and may more join you in efforts to strengthen the Department as an
institution and the justice system as a whole.

I To all DOJ prosecutors and prosecution attorneys, this is your Manual. A lot ofhard
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.
I 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.
I
I . GONZALEZ

I Secretary of Justice

I
I
I
I
,
, Revised Manual for Prosecutors 19
I
I'
Republika ng Pilipinas

I I KAGAWARAN NG KATARUNGAN
Department ofJustice
Manila

I 05 October 2007

I DEPARTMENT ORDER NO. 844


SUBJECT: DESIGNATION OF PERSONNEL

I 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 connec-
tion with the preparation of the: 1) Systems and Procedures Manual for the National Prosecution

I Service and 2) Prosecutor's Manual, to wit:

SSP PURITA MERCADO-DEYNATA - Chairperson

I RSP ANTONIO B. ARELLANO


RSP NONNATUS CAESAR R. ROJAS -
CP JAClNTO G. ANG
Co-Chairperson
Member
Member

I CP LORNA T. LEE
SSP ROSALINA P. AQUINO
SSPMA. EMlLIAL. VICTORIO
Member
Member
Member

I The Technical Working Group, which shall be under the direct supervision of Chief State
Prosecutor Jovencito R. ZUllo and assisted by ACSPMiguel F, Gudio, Jr. andACSPRJchardAnthony
D. Fadullon, shall be charged with the review and assessment of existing policies; formulation and
I 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).
I The Technical Working Group shall be assisted by a Secretariat. the members of which are
the following:
I Corazon S. Navarrete Dept. Legislative Liaison Specialist
Eleanor P. Singson Dept. Legislative Liaison Specialist

I Imelda A. Ballesteros
Evangeline C. Cruz
Dept. Legislative Liaison Specialist
Stenographic Reporter IV

I 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
I orders.

I (Sgd.) AGNES VST DEVANADERA


Acting Secretary
Copy furnished:
I All concerned.

I j 20 Revised Manual for Prosecutors

I j
ACKNOWLEDGMENT

.<-
~ .•....i.'.-.-.-....
;"'_

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

Foremost, the distinguished institutions and individuals who, by their support and
I 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
I 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.
I 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

I Ahmed, Director, Governance, Finance & Trade Division, Ms. Debra Kertzman, Mr. Joven
Z. Balbosa, Mr. Thatha Hla and Atty. Christine Lao.

I 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
I on Administrative Case Management; Atty. Eric Joseph Mallonga, consultant for the spe-
cial section on Prosecuting Human Rights Violations and Providing Available Remedies
Therefor; Atty. Victor Mamalateo and Atty. Giovanni Vallente, consultants for the special
I section on Prosecuting Violations of the National Internal Revenue Code and Related
Laws.

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


by Secretary Raul M. Gonzalez, Chief State Prosecutor Jovencito R. Zuiio, Assistant Chief

I State Prosecutor Severino H. Gafia, Jr., Assistant Chief State Prosecutor Miguel F. Gudio,
Jr., Assistant Chief State Prosecutor Pedrito L. Ranees and Assistant Chief State Prosecutor
Richard Anthony D. Fadullon should be acknowledged.

I The critical job of reviewing, rationalizing and updating the old Manual and pre-
senting the matrices during the validation sessions and the round table discussion were
I 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
I and SSP Ma. Emilia Lucena-Victorio (please refer to D.O. No. 844, s. 2007 on the previous
page, and Appendix 'T' on p. 322 ofthis Manual).

I This Manual was initially made possible through the Organizational Development
Program for the National Prosecution Service (NPS) and its component project, the

I 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

Revised Manual for Prosecutors 21


I
J
I;
I valuable policy research, process analysis, documentation, technical writing and project
management.

-I
Secretariat and other administrative work were effectively and efficiently carried
out by Ms. Eleanor P. Singson, Ms. Corazon S. Navarrete, Ms. ImeldaA. 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 too many of them, attached are the respective lists)
I 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 ofthe Department
II
,
ofEnvironment and Natural Resources (DENR), who provided for specifics in the prosecu-
tion of environmental cases.

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

I
I
I
I
I
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, 22 Revised Manual for Prosecutors

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PART I. PROSECUTION OF OFFENSES


I
I I. GENERAL PRINCIPLES

I 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

I termination of the case; otherwise, if he is absent, it cannot be gainsaid that the


trial is under his supervision and control (Pinote v. Ayco, 477 SCRA 409 [2005]).

I I 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.

I 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
I (Torres v. Aguinaldo, 461 SCRA 599 [2005 ).

I 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).

I 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
I 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.

I n. DEFINITION OF TERMS

1. Arraignment - is the formal mode and manner of implementing the con-


I stitutional right of the accused to be informed of the nature and cause of the
accusation against him (Sec. 13[2], 1987 Constitution of the Philippines). An

I 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).

I 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
I Criminal Procedure).

3. Bail - is the security given for the release of a person in custody of the law,
I 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

Revised Manual for Prosecutors 23

I
J
I of corporate surety, property bond, cash deposit or recognizance (Sec. 1, Rule
I 114, Revised Rules on Criminal Procedure).

4. Bail Bond - is an obligation given by the accused with one or more sureties, with
I 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).

I 5. Complaint - a sworn written statement charging a person with an offense, sub-


scribed by the offended party, any peace officer, or other public officer charged

I with the enforcement of the law violated (Sec. 3, Rule 110, Revised Rules on
Criminal Procedure).

I 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).
I 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
I Procedure).

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


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

I 9. Inquest - an informal and summary investigation conducted by a public prosecu-


tor 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

I or not said persons should remain under custody and correspondingly be charged
incoun.

I 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
\
I
I
in light of Article 100 of the Revised Penal Code that "every person criminally 1
I liable is also civilly liable (Garcia v. CA, 266 SCRA 678 [1997]); the person
actually injured and whose feeling is offended. 1j
I
I
11. Personal Knowledge of Facts (in arrests without warrant) - must be based
upon probable cause which means an actual belief or reasonable grounds of
1
I suspicion,

The grounds of suspicion are reasonable when, in the absence of actual


I 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
I of guilt of the person to be arrested. A reasonable suspicion therefore must be

I
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24 Revised Manual for Prosecutors

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IF fw
I,
founded on probable cause, "coupled with good faith on the part of the peace
I officers making the arrest." (Umil, et. al. vs. Ramos, 202 SCRA 251 [1991]).

12. Plea - is the reply of the accused to the charge. In criminal prosecution, the
I 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

I demurrer; or (3) by some plea in bar, either a general plea, "guilty" or "not guilty"
s
(Osborn Concise Law Dictionary, l i" Ed. John Burke, p. 254).

I 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
I Ed., p. 1037).

14. Preliminary Investigation - is an inquiry or proceeding to determine whether


I 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).
I 15. Probable Cause (for the purpose of filing an Information) - has been defined

I 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 ordi-
nary caution and prudence to believe, or entertain an honest or strong suspicion,

I that a thing is so.

16. Probable Cause (as a ground for warrantless arrest) - an actual belief or
I 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
I the presence or without the presence of the arresting officer.

17. Recognizance - is an obligation of record, entered into before some court or


I magistrate duly authorized 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

I trial (People v. Abner, 87 Phil. 566).

18. Release on Recognizance - the pre-trial release of an arrested person who prom-

I ises, usually in writing but without a surety or posting bond, to appear for trial at
a later date (Black's Law Dictionary, p. 1316).

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


to determine the existence or non-existence ofprobable cause in cases that do not
require preliminary investigation (Sec. 8, Rule 112, as amended, Revised Rules
I
,
on Criminal Procedure), namely those involving offenses in which the prescribed

, Revised Manual for Prosecutors 2S


fr
l.··.
"

penalty of imprisonment does not exceed four (4) years and two (2) months,
Ii regardless of the fine.

20. Summary Procedure (as distinguished from Summary Investigation) - refers


I to the court procedure in criminal cases covered by Rule 123 ofthe 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
I thousand pesos (Phpl,OOO.OO).

I 21. Trial-is ajudicial 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 pro-
nouncing either the guilt or innocence of the accused (US v. Raymundo, 14 Phil.

I 416 [1909]).

III. GENERAL RULES


I A. COMPLAINT

I 1. Form of the Complaint Filed Before the Prosecutor's Office

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

I a. a referral letter from the law enforcement agency;

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

I to file a criminal complaint;

c. a letter (sworn or not) from the offended party, or other persons autho-
I rized by law to file the complaint;

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


I Representatives or any other government agency or institution; and

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


I 2. Policy on Forms of Complaint Filed with the Prosecutor's Office

I 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,
,
i

I 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.
I
, 26 Revised Manual for Prosecutors

I
J
•It: c;.~ :
• •. .:...•-'
'~~y---
...
.;._.-- _-
"

b. However, referral letter-complaints from law enforcement agencies or


government institutions need not be sworn to by the complainants.

r c. A mere letter suffices to start an investigation, except ifthe offense charged


is one which cannot be prosecuted de oficio, or is private in nature, i.e.,
where the law requires that it be started by a complaint sworn to by the

I 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.
I • This liberal policy is premised upon the fact that the complainant is
unschooled in law, (Grenen v. Consolacion, 4 SCRA 722 [1962J) and
I 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 police agency or the aggrieved party. (Sec. 3, Rule 110,
I supra.).

I 3. Persons Authorized to File Complaints

I The following persons are authorized to file a complaint:

a. the offended party;


I • 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
I victims should be considered offended parties (Diel v. Martinez, 76 Phil.
273).

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

I c. any law enforcement officer charged with the enforcement of the law
violated.

I • 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)

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


Monetary Board, 20 SCRA 592).
I
I
, Revised Manual for Prosecutors 27

I
J.
I
m
l'
In offenses which cannot be prosecuted de oficio, only the follow-
I ing persons may file the complaint:

I. In crimes of adultery and concubinage, only the offended spouse


I has the right to file the complaint (Sec. 5, par. 2, Rule 110, su-
pra);

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


offended party, even if a minor, may file the complaint indepen-

I dently of her parents, grandparents or guardian (Sec. 5, par. 3,


Rule 110, supra);

I 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
I the following order of priority: parents, grandparents, and guard-
ians. (Sec. 5. par. 4, Rule 110, supra);

I 4. If the offended party dies or is incapacitated before she could file


the complaint, but has no known parents, grandparents or guard-

I ian, the State shall initiate the criminal action in her behalf (Sec.S,
par. 3,Rule 110, supra);

I 5. In cases of violations of the Child Abuse Law, anyone of the fol-


lowing may file the complaint (Sec. 27. R. A. No. 7610. as amended
by R. A. No. 9231 [Child Labor Law]):
I • the offended party;
• the parents or guardian;
I • ascendant or collateral relative within the third civil degree of
consanguinity;
• officer, social worker or representative of a licensed child-care
I •
institution;
officer or social worker of the Department of Social Welfare
and Development; ~
I • Barangay Chairman of the place where the offense was com-
mitted; or of the place where the offended party actually re-

I •
sides, or where he/she works;
At least three (3) responsible citizens where the violation oc-
curred.

I d. For violations of RA 9262 (Anti-Violence Against Women and their


Children Act of2004), any citizen having knowledge ofthe circumstances
I involving the commission of the crime may file the complaint.

-I
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28 Revised Manual for Prosecutors
e. In cases of violation of RA 9208 (Anti-Trafficking in Persons Act), any

r".' .;
'J~ ••.....
one of the following may file the complaint:

1. trafficked person;
2. parents;
3. spouse;

I 4.
5.
siblings,
children,
6. legal guardian;
I 7. any person who has personal knowledge of the commission of the
offense.

I 4. Law Enforcement OfficerslPublic Officers Authorized to File Criminal


Complaints

I 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

I following law enforcement officers or public officers or agencies may initiate


the criminal action or complaint:

I a. police officers;

b. NBI agents;
I c. officials of the Philippine Drug Enforcement Agency (PDEA) for viola-
tions ofRA 9165 (Comprehensive Dangerous Drugs Act of2002);
I d. officials of the Bureau of Internal Revenue (BlR) for violations of the
National Internal Revenue Code (NlRC);
I e. officials of the Bureau of Customs (BOC) for violations of the Tariff and
Customs Code;
I f. officials of the Bureau of Forestry Development (BFD) or other officials
of the Department of Environment and Natural Resources for violations

I of the Forestry Law;

g. officials of the Social Security System (SSS) for violations ofRA 1161, as
I amended by RA 8282 (SSS Law);

h. officials of the Philippine Overseas Employment Administration (POEA)


I for violations of RA 8042 (Migrant Workers and Overseas Filipinos Act
ofl995);

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

'I,
Revised Manual for Prosecutors 29
I
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I
I J. Other agencies specially tasked with the enforcement of certain special
laws.

5. Institution of Criminal Action; How and Where Commenced


I a. For offenses that require preliminary investigation pursuant to Sec. 1,

I Rule 112 of the Revised Rules on Criminal Procedure-

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

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

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

I b. For offenses that do not require preliminary investigation-

A criminal action may be commenced:

I 1. by filing the Complaint or Information directly with the Metropolitan


Trial Courts, Municipal Trial Courts and Municipal Circuit Trial
I Courts; or,

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


I 6. Place Where Criminal Action is to be Instituted

I 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.
I • The purpose of the aforementioned principle being that a defendant

I 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

I other evidence in another place (Beltran v. Ramos, et al., 96 Phil. 149


[1954J).

I 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 -

I The criminal action shail be instituted in the court of any municipality


or territory where such train, aircraft or other vehicle passed during such -';
j

I .~

,
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30 Revised Manual for Prosecutors
,,
-j
Ie; trip, including the place of departure and arrival (Sec. 15 (b), Rule 110,
supra.).

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

I 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
I intemationallaw (Sec. 15(c) Rule 110, supra).

• The place where the action is to be instituted is subject to existing


I laws such as offenses which fall under the exclusive jurisdiction ofthe
Sandiganbayan which is located at Quezon City.

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

I The commission ofsuch crimes shall be cognizable by the court where


the criminal action is first filed (Sec. 15 (d), Rule 110, supra.).
I 7. Who Prosecutes Criminal Actions

I a. All crinainal 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.).
I • A case dismissed before arraignment may be refiled. (Marcelo v. Court
ofAppeals, 227 SCRA 827).
I b. In Municipal Trial Courts or Municipal Circuit Trial Courts, when the

I prosecutor assigned thereto or to the case is not available the following


may prosecute the case (Sec. 5, par. 1, Rule 110, supra.):

I 1. the offended party;


2. any peace officer; or
3. public officer charged with the enforcement of the law violated.
I This authority shall cease upon actual intervention of the prosecutor
or upon elevation of the case to the Regional Trial Court.
I
I
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, Revised Manual for Prosecutors 31
I
B. INFORMATION
I 1. The Information Need Not Be under Oath; Matter Which a Prosecutor
Must Certify Under Oath in the Information
I The Information need not be placed under oath by the prosecutor signing

I the same. He must, however, certify under oath that:

a. he has examined the complainant and his witnesses;


I b. there is reasonable ground to believe that a crime has been committed and
that the accused is probably guilty thereof;
I c. the accused was informed of the complaint and of the evidence submitted
against him; and
I d. the accused was given an opportunity to submit controverting evidence

I (Sec. 4, Rule 112. supra.).

2. Contents ofthe Caption of an Information

I The caption of an Information shall, in addition to the name of the plain-


tiff, indicate the following:
I 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
I shall be indicated in the caption;

b. the case number; and


I c. the offense charged. (The denomination of the offense and the specific

I law and provision violated shall be specified.)

C. RULES COMMON TO BOTRA COMPLAINT AND AN INFORMATION

I 1. Sufficiency of a Complaint or an Information

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

a. the name ofthe accused


I The Complaint or Information must state the name and sumame of the
accused or any appellation or nickname by which he has been or is known. If
I his name cannot be ascertained, he must be described under a fictitious name

, with a statement that his true name is unknown. (Sec. 7, par. 1, Rule 110.
supra.).

, 32 Revised Manual for Prosecutors


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 prop-
erly conducted and the nature of the crime is not changed (San Diego
v. Hernandez, 24 SCRA 110 [1968]).

• In crimes against property, the designation ofthe name ofthe 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 ac-
cusation 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 oflaw

• The terms "sexual abuse", "rape" or "acts of lasciviousness" are conclu-


sions of law, and not the ultimate facts constituting the acts punishable
under Sec. 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]).

'R&vised:Manual for Prosecutors 33


-I • The allegation that the accused "sexually abused" the complainant is
not sufficient to support a conviction for rape. The term "sexual abuse"
cannot be equated with the allegation of carnal knowledge or sexual

I intercourse with the offended party (People v. Flores, G. R. No. 128823-


24, December 27, 2002).

I • Neither is the term "sexual abuse" sufficient to convict the accused of


child abuse under RA 7610 because under Sec. 2 (g) of the Rules and
Regulations of the Reporting and Investigation of Child Abuse cases,
I issued pursuant to Sec. 32 ofRA 7610, "sexual abuse" is defined therein
by inclusion as follows:

I "Sexual abuse includes:

I 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
I 2. the molestation, or

I 3. prostitution, or

4. incest with children."


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

I Example ofAverments of Ultimate Facts

I The body of the information states that the accused "embraced" the
complainant, "held her breasts and kissed her lips". Such allegations con-
stitute specific averment of ultimate facts constituting the offense of child
I abuse under Sec. 5 ofRA 761O. This, despite the fact that the caption and the
preamble of the Information designated the offense charged as "Violation
ofRA 7610". The omission to cite the specific section or subsection. ofRA
I 7610 violated is not sufficientto 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
I facts" of the generic term "acts of lasciviousness" which is penalized under
Sec. 5 of RA 7610. Hence, the Information was valid (Olivarez v. CA G. R.

I No. 163866, July 29, 2005).

~ 34
I Revised Manual for Prosecutors
·
1:-''- .
'
•••.

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

I 1. When the victim is under eighteen (18) years of age and the offender
is a parent, ascendant, step-parent, guardian, relative by .consan-

I guinity or affinity within the third civil degree, or the common-law


spouse of the parent of the victim;

I 2. When the victim is under the custody of the police or military au-
thorities;
i

l 3. When the rape is committed in full view ofthe husband, parent, any
of the children or other relatives within the third degree of consan-
guinity;
I 4. When the victim is a religious or a child below seven (7) years old;

I 5. When the offender knows that he is afflicted with Acquired Immune


Deficiency Syndrome (AIDS) disease;

I 6. When the rape is committed by any member of the Armed Forces of


the Philippines or the Philippine National Police or any law enforce-

I ment agency;

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

I c. the cause of the accusation

The acts or omissions complained of as constituting the offense and


I the qualifying and aggravating circumstances must be stated in ordinary
and concise language and not necessarily in the language used in the

I statute but in terms sufficient to enable a person of common understand-


ing to know what offense is being charged as well as its qualifying and
aggravating circumstances and for the court to pronounce judgment (Sec.

I 9, Rule 11 0, supra.).

d. place where the offense was committed


I The Complaint or Information is sufficient if it can be understood from
its allegations that the offense was committed or some of its essential
I ingredients occurred at some place within the jurisdiction of the court,
unless the particular place where it was committed constitutes an essential

J Revised Manual for Prosecutors 35

••
J
I element of the offense charged or is necessary for its identification (Sec.

I i 0, Rule 110, supra.).

A general allegation in the Complaint that the felony was committed


I 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, 9i Phil.
53).
I There are however, certain crimes where place is essential:

I I. violation of domicile (Art. i28, RPC);

I 2. penalty on keeper, watchman and visitor of an opium den (Art.


i99, RPC);

I 3. trespass to dwelling (Art. 280, RPC);

4. violation of the election law, e.g., 30-meter radius carrying of a


I deadly weapon prohibited (Election Code)

e. date of the commission of the offense


I 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
I 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

I at anytime within the period of the statute of limitation and before the
commencement of the action (US v. Smith, 3 Phil 20 ri903)).

I f. name of the offended party

The Complaint or Information must state the name and surname of the
I person against whom or against whose property the offense was commit-
ted, 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
I under a fictitious name (Sec. i2, Rule 110, supra.).

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


I The following matters shall also be alleged in the Complaint or

I Information:

a. every essential element of the offense;

I b. the criminal intent of the accused and its relation to the act or omission
complained of;
I, 36 Revised Manual for Prosecutors

I
j
• '
-""""",{/:::.:-.:.
",.oc_.
-,,-, ,

I c. all qualifying and generic aggravating circumstances which are integral


parts of the offense;

I 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 particu-
lar knowledge to establish culpable intent; or the particular intention that
I characterizes the offense;

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

I f. age of the minor complainant.

3. Number of Offenses Charged


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

The charge is not defective for duplicity when one single crime is set forth
I 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,

I or the acts resulted from a single criminal impulse. Neither is there duplic-
ity 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
I describing the offense (People v Mantilla, 285 SCRA 703).

EXCEPTION: The rule on duplicity of offenses does not apply


I 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
I rape with homicide.

4. Title of the Complaint or Information


I The title of the Complaint or Information shall be in the name of the

I "People of the Philippines" as plaintiff against all persons who appear to be


responsible for the offense involved.

I
I
-I
J
Revised Manual for Prosecutors 37
I
5. Qualifying and Generic Aggravating Circumstances; To be Alleged and
I Proved

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

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


Complaint or Information may not be considered by the court even if

I proved during trial, except as a ground for the grant of exemplary dam-
ages in the civil aspect of the criminal action where applicable, pursuant
to Article 2230 of the New Civil Code.
I 6. List of Prosecution Witnesses

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

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

I the incident.

7. Amendment ofthe Complaint or Information


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

I a. before the accused pleads

This may be done without leave of court; however, any amend-


I ment before plea, which downgrades the nature of the offense charged or
excludes any accused from the Complaint or Information, can be made

I only upon motion by the prosecutor, with notice to the offended party and
with leave of court (Sec. 14, par. 2. Rule 110, supra.).

I b. after the accused has pleaded

The amendment may be made only with leave of court and only as to

I matters of form wherein the same can be done without prejudice to the
rights of the accused (Sec. 14. par. 1, Rule 110, supra.).

I
,I
38 Revised Manual for Prosecutors

I
J
•....'.'.',
1<"
c. during the trial
I 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
I prejudice to the rights of the accused (Sec.14, par. 1, Rule 110, supra.).

I I 8. Amendment by SUbstitution

At any time before judgment, if there has been a mistake in charging the

I 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

I I jeopardy. The court may also require the witnesses to give bail for their ap-
pearance at the trial (Sec. 14, par. 3, Rule 110, supra.).

I a. Requisites for the substitution of a defective information with the cor-


rect ODe:

I 1. it involves a substantial change from the original charge;

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


original Information has to be dismissed;

I 3. another preliminary investigation must be conducted and the accused


has to plead anew to the new Information; and,

I 4. substitution presupposes that the new Information involves a different


offense which does not include or is not necessarily included in the
original charge.
I NOTE: Where the second Information involves the same offense, or
an offense which necessarily includes or is necessarily included in
I the first Information, an amendment of the Information is sufficient;
otherwise, where the new Information charges an offense which is
I. distinct and different from that initially charged, a substitution is in
order (Galvez v. Court ofAppeals, 237 SCRA 695).

I NOTE: When it becomes manifest at anytime before judgment that


a mistake has been made in charging the proper offense and the ac-
cused cannot be convicted of the offense charged or any other offense

II 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 to answer for the proper offense and dismiss the
I original case upon the filing of the proper Information (Sec. 19, Rule
119, Revised Rules on Criminal Procedure).

I
J
Revised Manual for Prosecutors 39

I
I
9. Prescriptive Period; How Computed and Interrupted
I a. For an offense penalized under the Revised Penal Code -

I The period of prescription commences to run from the day on which


the crime was discovered by the offended party, the authorities, or their

I agents, and shall be interrupted:

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


I Prosecutor (Sec. 1 (b), par. 2, Rule 110, supra.); or with the Office of
the Ombudsman (Llenes v. Dicdican, 260 SCRA 207 [19961 or

I 2. by the filing of the Complaint/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).
I 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
I as reckless imprudence resulting in slight physical injuries), the period
of prescription is interrupted only by the filing of the Complaint or

I Information in the prosecutor's office (People v. Cuaresma, 172 SCRA


415 [1989).

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


Ombudsman shall commence to run again when proceedings ter-
minate; while the prescription of an offense filed in court starts to
I I run again when the proceedings terminate without the accused being
convicted or acquitted or are unjustifiably stopped for any reason not
imputable to the accused (Art. 91, Revised Penal Code).
I b. For violation of a special law or ordinance - .

I 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 in-
I vestigation and punishment. The prescription shall be interrupted only by
the filing of the Complaint or Information in court and shall begin to run

I again if the proceedings are dismissed for reasons not constituting double
jeopardy (Sec. 2, Act. No. 3326, as amended).

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

I
,
, 40 Revised Manual for Prosecutors
IF"
--,-
• In cases where the imposable penalty is imprisonment andlor a
t fine, the greater penalty shall be the basis for the computation of
prescription.

I c. For cases falling within the jurisdiction of the Katarungan


Pambarangay -

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


complaint with the punong barangay, but shall not resume to run again
I 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)
I days from the filing of the complaint with the punong barangay.

Prescription shall not run when the offender is absent from the coun-
I try.

I IV. RELEVANT JURISPRUDENCE

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

I 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. CA .. 287 SCRA 581).
II 2. Where the crime for violation ofPD 532 (Anti-Piracy and Anti-Highway Robbery
Law of 1974) was committed aboard a jeepney, the criminal action may be insti-
I tuted in the court of any municipality or territory where the vehicle passed during
the trip including the place ofdeparture and arrival (People v. Panlilio, 255 SCRA
503).
II 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
I Quezon City, the courts in any of these places had jurisdiction over the offenses
(Co Kiat v. CA., 187 SCRA 5 [1990}).

I 4. The Supreme Court ruled in the case ofPeoplev. Esperanza, G.R.Nos.139217-24,


June 27, 2003, the allegation that "Irma is Nelson's niece" is not specific enough
I 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
I the Information, i.e., that he is a "relative by consanguinity or affinity [as the case
may be] within the third civil degree."

II 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 par-

, Revised Manual for Prosecutors 41


I
ticularity. Not only the qualifying but also the aggravating circumstances must be
I specified in the Information. The Rules now require aggravating circumstances
must not only be proved but it must also be alleged; otherwise, it should not be

I considered. (Catiis v. CA., GR No. 153979, February 09, 2006.).

6. The exact age of the victim at the time of the commission of the offense must be

I 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 aggra-
I vating circumstances of insult or in disregard of the respect due the offended
party on account of the fact that the accused is the father ofthe complainant, said
Informations properly pleaded the special circumstance of relationship of father
I 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).

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


offended party to an award of exemplary damages within the context of Article

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

I 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
I [20002J as reiterated in People v. Paulino, 386 SCRA391 [2002J and People v.
Garin, 432 SCRA 394 [2004J).

I 11. When conspiracy is charged as a mode in the commission of a crime, the allega-
tion in the Information should allege, thus: a) by the use of the word "conspire"

I 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
I 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).
I 12. Allegations prevail over designation of the offense in the Information for convic-
tion of the accused who may therefore be convicted of a crime more serious than
I
,
that named in the title or preliminary part if such crime is covered by the facts

, 42 Revised Manual for Prosecutors


alleged in the body of the Information and its commission is established by the
evidence (Buhat v. CA., 265 SCRA 701 [1996]).

f'~< 13. An Information for bigamy must state the time and place ofthe second wedding
(People'v. Bustamante, 105 Phil. 64).

I 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).

I 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
I case may be. The use of the unlicensed firearm is not considered as a separate
crime but shall be appreciated as a mere aggravating circumstance (People v.
Lazaro, 317 SCRA 435).
I 16. An amendment after plea which changes the nature of the offense is prohibited
,I (Ricers v. CA., 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
,I specification ofthe provision oflaw alleged to have been violated they being con-
clusions of law but by the actual recital of facts in the Complaint or Information
(Lacson v. Executive Secretary, 301 SeRA 298 [1999J; People vs. Gutierrez, 403

I SCRA 178).

I
I
I
I
I
I
I
IJ
Revised Manual for Prosecutors 43

I
I
PART II. INQUEST
I
I I. GENERAL RULES

A. CONCEPT

I Inquest is an informal and summary investigation conducted by a public prosecu-


tor in criminal cases involving persons arrested and detained without the benefit ofa
I 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.

I B. COVERAGE

I The conduct of inquest proceedings covers the following:

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

I and regulations;

2. Where the respondent is a minor (below eighteen [18] years old), the inquest
I 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 shall have first undergone the
I requisite proceedings before the Local Social Welfare Development Officer
pursuant to the Rules on Inquest With Respect to Children in Conflict With
the Law (CICL) (please refer to Department Circular No. 39, s. 2007 on
I 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

I Justice and Welfare Act of 2006" found in Appendix "A" on p. 300 of this
Manual).

I C. DESIGNATION OF AN INQUEST PROSECUTOR

The Chief State Prosecutor or the Provincial/City Prosecutor shall designate


I 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
I appropriate action.

D. VENUE OF INQUEST CASES


I Unless otherwise directed by the Chief State Prosecutor or the Provincial!

I City Prosecutor, those assigned to inquest duties shall discharge their functions

,
during the hours of their designated assignments and ouly at the police sta-

, 44 Revised Manual for Prosecutors


dons headquarters of the PNP or at the office of the inquest prosecutor in
order to expedite and facilitate the disposition of inquest cases.

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, Sundayand 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 SeRA 1168).
~u
,~ .';~-~,'-;'~-
I II. PROCEDURE

I jl A. COMMENCEMENT OF THE INQUEST PROCEEDINGS

1. When Commenced

I The inquest proceedings shall be considered commenced upon receipt by the


inquest prosecutor of the following documents:
II a. the affidavit of arrest duly subscribed and sworn to before him by the arrest-
ing officer;

I b. the investigation report;

I 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


I the latter's investigation of the criminal incident involving the arrested or
detained person.

II NOTE: The sworn complaint shall be accompanied by an accomplished


Preliminary Investigation Data Form (please refer to NPS Investigation Form

I No. 01, s. 2008 on p. 60 ofthis Manual.) and other supporting documents.

2. Documents Required in Specific Cases


I I The inquest prosecutor shall, as far as practicable, require the submission!

'.I
presentation of the documents listed below to wit:

a. Murder, Homicide and Parricide

,
I • cenified true/machine copy of the cenificate of death of the victim;

Revised Manual for Prosecutors 45

I
I
• autopsy report and the certificate of post-mortem examination, if readily
I •
available; and
marriage certificate in parricide cases.

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

I • medical certificate of the complaining witness showing the nature or ex-


tent of the injury and duration of healing;
• certification or statement as to duration of the treatment or medical at-
I •
tendance;
certificate or statement as to duration of incapacity for work; and
• marriage certificate in frustrated or attempted parricide cases.
I c. Violation of the Dangerous Drugs Law/Comprehensive Dangerous Drugs Act
of2002 (RA 9165)
I • chemistry report or certificate of laboratory examination dilly signed by
the forensic chemist or other dilly authorized officer, or if unavailable,
I 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

I 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 prosecutor's office within five (5)

I •
days from the date of the inquest;
machine copy or photograph of the buy-bust money, if available; and
• affidavit of the poseur-buyer, if any.
I 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)
I • a list/inventory of the articles and items subject of the offense; and
• statement of their respective values.
I e. Rape, Seduction and Forcible Abduction with Rape

I • the medico-legal report (living case report), if the victim submitted herself
for medical or physical examination.

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

I •

machine copy of the certificate of motor vehicle registration;
machine copy of the current official receipt of payment of the registration
fees ofthe subject motor vehicle;
I
,
• photograph of the vehicle, if readily available;

46 Revised Manual for Prosecutors

~
• certification from the Traffic Management Group / Land Transponation
Office; and
• other evidence of ownership,

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.

1. Illegal Possession of Firearms, Ammunitions and Explosives (PD, 1866 as


amended by RA 8294)

• chemistry report duly signed by the forensic chemist; and


"':s::::" • photograph of the explosives, if readily available.

I <;':

.~:::._,-
• ballistics report, if readily available.

J. Violation of the Fisheries Law (PD 704)

I • photograph of the confiscated fish, if readily available;


• photograph of fishing paraphernalia, if any; and
I • certification of the Bureau of Fisheries and Aquatic Resources.

k. Violation ofRA 9262 (VAWC)


,
I • marriage contract/certificate; or

I I •

affidavit/evidence of "dating relationship", if applicable; and
barangay protection order (BPO), if any.

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


require the submission of the following:

I •

birth certificate; or
dental chart accompanied by a certification from the dentist; or
• affidavits of any of the parent/disinterested parties;
I • certificate of discernment from the LSWD in cases covered by RA
9344 (the Juvenile Justice and Welfare Act).

I
,
Other pieces of evidence may also be submitted to establish the commis-
sion of the foregoing offenses/crimes.

Revised Manual for Prosecutors 47

,~~
'~
~~
I
I 3. Incomplete Documents

When the documents presented are not complete to establish probable cause,

I 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

I 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
I Form No. 02, s. 2008 on p. 64 ofthis Manual).

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


I 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
I following cases:

I •

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

I 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.

I 5. Charges and Counter-Charges

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

I 6. Determination of the Arrest by the Inquest Prosecutor

I The inquest prosecutor shall first determine ifthe arrest ofthe 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 war-

I rant may be effected: (Go vs. Court ofAppeals. 206 SCRA 138 [1992]; Umil, et.
al. vs. Ramos, 202 SCRA 251 [1991J and companion cases People vs. Malmstedt,
198 SCRA 401 and People vs. Aminnudin, 163 SCRA 402 [1998J).
I 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
I 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 circum-
I
,
stances, that the person to be arrested has committed it; and

48 Revised Manual for Prosecutors

~
._- ----

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
6#-. .•. . . .'"
I~f;;::·- from one confinement to another.

For this purpose, the inquest prosecutor may summarily examine the arrest-

I ing officers on the circumstances surrounding the arrest or apprehension of the


detained person.

I Meaning of'Probable Cause in Inquest Cases

Probable cause means an actual belief or reasonable grounds of suspicion


I (People vs. Tudtud, GR No. 144037, Sept. 26, 2003) that the person to be arrested
is about to commir or is attempting to commit a crime, or is in the act of com-

I mitting a crime, or has committed a crime, either in the presence or without the
presence of the arresting officer.

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

Should the inquest prosecutor find that the arrest was not made in accordance

I with the aforesaid provisions of the Revised Rules on Criminal Procedure, he


shall:

I •

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
I or Provincial/City Prosecutor for appropriate action.

Where the recommendation for the release of the detained person Is approved
I by the Chief State Prosecutor or by the Provincial/City Prosecutor but the evi-
dence on hand warrants the conduct of a regular preliminary investigation, the

I inquest prosecutor shall:

• serve the order of release on the law enforcement officer having custody

I of said detainee and (please see NPS INQ Form No. 02, s.2008 on p. 64
ofthis Manual);
• direct the said officer to serve upon the detainee the subpoena or notice
I 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
I No. 03, s. 2008 on p. 66 ofthis Manual).

I
I
j

ReVised Manual for Prosecutors 49


I
J
I
8. Where the Arrest of the Detained Person was Properly Effected
I 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
I investigation and, ifhe does, the consequences thereof must be explained to him
adequately.

I 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
I Penal Code, as amended. (please refer to NPS INQ Form No. 04, s. 2008 on p.
67 ofthis Manual).

I 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 ProvinciallCity Prosecutor, which investigation
I shall be terminated within fifteen (15) days from its inception.

I B. INQUEST PROPER

Where the detained person does not opt for a preliminary investigation or

I 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
I and the witnesses and other supporting evidence submitted.

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

I If the inquest prosecutor finds that probable cause exists, he shall forthwith
prepare the resolution with the corresponding Complaint/Information with the

I recommendation that the same be filed in court. The ComplaintlInformation shall


indicate the offense/s committed and the amount of bail recommended, if ap-
plicable. However, in inquest cases for crimes covered by the Rules on Summary

I 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.
I Thereafter, the record of the case, together with the resolution and the
ComplaintlInformation, shall be forwarded to the Chief State Prosecutor or the
I ProvinciallCity Prosecutor for approval and subsequent filing before the proper
Court.

I
, 50 Revised Manual for Prosecutors

~
:. ~.::.:
If "..•. ••

...---'~-;.-.---
...•...•....

1. Contents of the Information


I The ComplaintlInformation shall, among others, contain:

I a. a certification by the filing prosecutor that he is filing the same in accor-


dance with the provisions of Sec. 6, Rule 112, Revised Rules on Criminal

I Procedure in cases cognizable by the Regional Trial Court (please refer to


NPS INQ Form No. 05, s.2008 on p. 68 ofthis Manual);

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

c. unidentified accused personls designated as "John/Jane Does", ifhe/she is


I in conspiracy with the identified accused;

d. the address of the accused;


I e. the place where the accused is actually detained;

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

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

I h. the full name and address of the evidence custodian;

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

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

I 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!

-I detained person, he shall:

a. recommend the release of the arrested or detained person; (please re-


fer to NPS INQ Form No. 02, s. 2008 on release found on p. 64 of this
Manual);

I b. prepare a resolution of dismissal indicating therein the reasons for the


action taken; and

Revised Manual for Prosecutors 51


I c. forthwith forward the record of the case to the Chief State Prosecutor or
the Provincial/City Prosecutor for appropriate action.
;I When me Chief State Prosecutor or the Provincial/City Prosecutor sus-
II tains the recommendation of the inquest prosecutor 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

I be, for automatic review. (please refer to DOJ Circular No. 46, s. 2003 on
"Automatic Review ofDismissed Cases Involving RA 9165 [Comprehensive
Dangerous Drugs Act of 2002]" found in Appendix "B" on p. 303 of this

I Manual)

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

I 4. Posting of Bail by the Arrested/Detained Person

a. If offense is bailable

'I A person lawfuily arrested/detained under Sec. 6, Rule 112 of the


Revised Rules on Criminal Procedure may post bail before the filing
:1 of the Information without being deemed to have waived his right to a
preliminary investigation. For this purpose, the inquest prosecutor shall

II 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
I SCRA 557.)

I b. If offense is non-bailable

The inquest prosecutor must move for the suspension of the bail

I hearing until the fifteen (15)-day preliminary investigation of the inquest


proceeding is terminated and the resolution is promulgated.

I 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.

Revised Manual for Prosecutors

....-------- .- .-.-
1
1

I 1. forthwith proceed to the crime scene or place of discovery of the dead per-
son;

I 2. cause the immediate autopsy of the dead person to be conducted by the ap-
propriate medico-legal officer in the locality or the PNP medico legal division
or the NBI medico-legal office, as the case may be;
I 3. direct the police investigator to cause the taking of photographs of the crime

I scene or place of discovery of the dead body;

4. supervise the crime scene investigation to be conducted by the police authori-

I ties 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

I 5. submit a written report of his/her :findingto the Chief State Prosecutor or the
Provincial/City Prosecutor as the case may be for appropriate action.
I 11. SAt"ffiIGANBAYAt~ CASES

I 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
I before the Office of the Ombudsman or the Office of the Special Prosecutor
through any of the branch clerk of court in the locality.

I C. ABSENCE OR UNAVAILABILITY OF THE INQUEST PROSECUTOR

I The inquest prosecutor shall take appropriate remedial measures 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
I inquest prosecutor.

D. RECOVERED ARTICLES
I 1. Responsibility ofthe Inquest Prosecutor:

I The inquest prosecutor shall:

I 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;

-I
J
......
54 Revised Manual for Prosecutors
Ii"
r~": .
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

I:"" c. ensure that the items recovered are duly safeguarded by the law enforcer
and the chain of custody is properly recorded.

1 2. Deposit of Recovered ArticleslProperties:

The said articles shall be properly deposited by the police investigator


I with the police evidence custodian.

I E. RELEASE OF RECOVERED ARTICLES

The inquest prosecutor shall, with the prior approval of the Chief State

I Prosecutor or the Provincial/City Prosecutor or his duly authorized representa-


tive, 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
I the conditions that:

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

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

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

I 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;
I 5. the said articles are not the instruments, or tools in the commission of the
offense charged nor the proceeds thereof; and
I 6. photographs of said articles are first taken and duly certified to by the
police evidence custodian as accurately representing the evidence in his
I custody.

IV. RELEVANT JURISPRUDENCE


I 1. The permissible warrantless arrests are: (l) arrests in flagrante delicto; (2) arrests

I effected in hot pursuit; (3) arrests ofescaped prisoners (People vs. Macalaba, 395
SCRA 461).

I
J
Revised Manual for Prosecutors 55

il
I
2. After the filing of the Information in court without a preliminary investigation,
I the accused may, within five (5) days from the time he learns ofits filing, ask for
a preliminary investigation with the same right to adduce evidence in his defense

I 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]).

I 3. Reliable information alone, absent any overt act indicative of a felonious en-
terprise 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
I arrest (People vs. Molina, GR No. 133917, February 19, 2001, en bane; See also
People vs. Chua, 396 SCRA 657; People vs. Nuevas, G. R No. 170233, February
22,2007).
I 4. A warrantless arrest is not justified by the mere fact that a crime is being com-
mittedin one's presence. The arresting officer must have personal knowledge of
I such commission. The knowledge must precede the arrest. The arrest cannot be
justified by discovery thereafter that the person was committing a crime (People

I vs. Judge Laguio, GRNo. 128587, March 16, 2007).

5. Buy-bust operations are considered arrests inflagrante delicto. (people vs. Lacap,

I 368 SCRA 64.).

6. "Just been committed" connotes immediacy in point of time (the time interval
I 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])

I 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
I 701) were held to be unlawful. .

I 8. When a police officer sees the offense, although at a distance, or hears the distur-
bances 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

I or within his view (People vs. Sucro, 195 SCRA 388).

9. The "personal knowledge" of the fact ofrape which was supplied by the ra p e

I victim herself to the arresting officer falls within the purview of a warrantless
arrest (People vs. Alvario, 275 SCRA 529[1997]).

I 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
I an order of arrest (Sanchez, vs. Demetriou, 46 SCAD 152, 227 SCRA 627).

I
J 56 Revised Manual for Prosecutors

I
J
r· V. HELPFUL HINTS

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


of an affidavit of arrest.
I 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
I the same should be re-affirmed before the inquest prosecutor.

3. Inquest proceedings should always be conducted by prosecutors in proper at-


I tire.

I 4. Inquest proceedings should never be conducted in the prosecutor's residence.

5. During the conduct of inquest proceedings, the inquest prosecutor must keep

I calm and observe proper decorum.

I
I
I
I
I
I
I
I
I
I
I
I
Revised Manual for Prosecutors 57

I
)-~\--:­
dfs;;,.
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I .
I

-I
J
58 Revised Manual for Prosecutors
I~~C

I-
I
I
I TEMPLATES OF INQ1JEST FORMS

I I
I
I
I
I
I
I
i I
I
i I
I• Revised Manual for Prosecutors 59

I
J
I
NPS Investigation Form No. 01, s.2008

I Republic oftbe Philippines


Department of Justice

I National Prosecution Service

I INVESTIGATION DATA FORM

I To be accomplished by the Office

DATE RECEIVED: NPS DOCKET NO.: _


I (stamped and initialed):
TIme Received:
Assigned to:
Date Assigned: _
_

Receiving Staff: _

I
I To be accomplished by complainant/counsel/law enforcer
(Use back portion if space is not sufficient)

I COMPLAINANTIS: Name, Sex, Age &


Address
RESPONDENTIS: Name, Sex, Age &
Address

I
I LAW/S VIOLATED: WITNESSIES: Name & Address

I
I DATE & TIME of COMMISSION: PLACE of COMMISSION:

I
I 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'
I If yes, indicate details below.
3. Is this complaint related to another case before this office?" YES NO
If yes, indicate details below.
I LS. No.: -:::-_ _~
Handling Prosecutor:
~ __
_

I 60 Revised Manual for Prosecutors

I
I NPS INQ Form No. 01, s.2008
I
Republic of the Philippines
I Department of Justice
NATIONAL PROSECUTION SERVICE

I
I Complainant/s,
1.S. No. _

I -versus- For: -r--r- _

i
I Respondent/s.
x-----------------------------------------x
1
j

I i
ORDER
(To submit additional evidence/documents)
1
I
I I
I In connection with the investigation being conducted in the above-captioned case, you
are hereby directed to submit the following evidence/documents, to wit:

I 1. _

I 2.

,
_

I
j. - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

4. _

I 5. ---:.- _

I
I
~ 62 Revised Manual for Prosecutors

~
'It:.;, .-".:},..::~,:.,.,
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
preliinary investigation.

tIt:-
;... ,...
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _"Philippines
_ _ _ _ _ _ _ 20_ _

I Inquest Prosecutor
(Signature over printed name)

I
Received copy, this _ day of -----', 20 __
I
Copy received by:
I Investigating/Police Officer

I (Signature over printed name)

I
,I
I
I
I
I
I
~ Revised Manual for Prosecutors 63

I
;
I
NPS INQ Form No. 02, s. 2008
I Republic of the Philippines
Department of Justice
I NATIONAL PROSECUTION SERVICE

I
I Complainant,
1.S. No. _
- versus- For: _

I
Respondent.
I x- - - - - - - - - - - - - - - - - - - - - - - -x

I RELEASE ORDER
(Of Detained!Arrested Person)

I
I
I 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: *
I o respondent was not lawfully arrested pursuant to the provisions
of Section 5, Rule 113 of the Revised Rules on Criminal Procedure.
I o the documents required by the undersigned have not been
submitted by the police investigating officer.

I o there exists no probable cause on the basis of the evidence


presented.

I *Check appropriate boxlboxes and affix your initial.

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

I
I
)
64 Revised Manual for Prosecutors

I
_ _ _ _ _ _ _ _ _ _ _, Philippines.

,r
i 20 _

Inquest Prosecutor

I
: }::~ ~
(Signature over printed name)
,'-.,,-'.

I:" ~ APPROVED:

I' Chief State! Provincial/City Prosecutor


(Signature over printed name)
I
Received copy, this _ day of . 20
I
I Investigating/Police Officer

I (Signature over printed name)

I
I
II
I
I
i
I
I
I
,
, Revised Manual for Prosecutors 65
I
NPS INQ Form No. 03, s. 2008
I Republic of the Philippines
Department of Justice
I NATIONAL PROSECUTION SERVICE

I
I Complainant/s,
1.S. No.
For: _
_
-versus-

I
Respondent/s,
I x-----------------------------------------x

I SUBPOENA TO RESPONDENT/S

I TO:

I GREETINGS:

I 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 ofyour witness/es, if any, to be

I sworn to before me on , 200- at --.a.m.zp.m, Attached is a copy


of the complaint and other evidence submitted by the complainant.

I 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.
I WITNESS MY HAND this day of _ _ _ _ _ _ _ _, 200_ at

I _ _ _ _ _--', Philippines.

I
INVESTIGATING PROSECUTOR

I
~ 66 Revised Manual for Prosecutors

I
i NPS INQ Form No. 04, s, 2008

I Republic of the Philippines


Department of Justice

I NATIONAL PROSECUTION SERVICE

I
Complainant,
I -versus-
For:
LS. No. _
-------
I x-----------------------x
Respondent.

I REQUEST FOR PRELIMINARY INVESTIGATION


AJ.~ WAIVEROF ARTICLE 125, REVISED PENAL CODE
I (Where Arrest was Properly Effected)

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


I 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.
I _ _ _ _ _~--:-----'Philippines.

I (Place)

(Date)

I Respondent
(Signature over printed name)
I
I I Assisted By:

I Counsel
(Signature over printed name)

I
I
I,
II
' Revised Manual for Prosecutors 67

il~£~~:_'.
,- . .-

I I
NPS INQ Form No. 05, s.2008

I
I
CERTIFICATION
II (For Information in Inquest Cases)

I
I 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

I right to preliminary investigation and not having executed a waiver pursuant to Article 125 of the

,I Revised Penal Code. I further certify that this Information is being filed with the prior authority of
the Chief State Prosecutor/Provincial/City Prosecutor.

II Inquest Prosecutor
(Signature over printed name)
I
I I

I I

I
I I

I I,
I
I
I
I• 68 Revised Manual for Prosecutors

I
;; '" .•.
.•.

1---:;·
....

NPS INQ Form No. 06, s.2008

I Republic of the Philippines


Department of Justice
I NATIONAL PROSECUTION SERVICE

I
I Complainant,
1.S. No. _

I -versus- For:

I Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - - -x

I RELEASE ORDER
(Of Recovered Articles)
I
THE EVIDENCE CUSTODIAJ~
I
I On the basis of the request made by for the release to his

I custody of the articles/properties particularly described as follows:

I
I 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
I other lawful cause.

I _ _ _ _ _---'" Philippines, 20_ _

I Inquest Prosecutor
(Signature over printed name)
continued, nextpage> >

,I Revised Manual for Prosecutors 69

I
I
I
I APPROVED:

I I
Chief State! Provincial! City Prosecutor

I (Signature over printed name)

I Received copy, this _ day of , 20_ _

I
I Evidence Custodian
(Signature over printed name)

I
I
I
I
I
I
I
I
I
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J
70 Revised Manual for Prosecutors

I
J
NPS INQ Form No. 07, s.2008

I Republic ofthe Philippines


Department of Justice
I NATIONAL PROSECUTION SERVICE

I
I - versus-
Complainant,
1.S. No. _

I Respondent.
For:
------

I x-----------------------x
REQUEST FOR RELEASE
I with
lJNDERTAKING
I (Of Recovered Articles by Requesting Party)

I
I am respectfully requesting the release to my custody of certain articlesf properties, more
I particularly described as follows:

I
I which were recovered by the. police authorities and presently in the custody of
_ _ _ _ _ _ _ _ _ _ _"and in connection therewith, I declare under oath:

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


ies of which are hereto attached;
. cop-

I 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;
I 4. That I have caused the said articlesfproperties to be photographed/photocopied and certi-
fied by the police custodian as accurately representing the same;
5. That I affirm the affidavit/statement executed by me on before
I _----,---:-::_ _---,---_ _---,- and hereby bind myself under penalty of law to appear and
testify thereon in court when so required.
continued, nextpage> >

I··
I ..
Revised Manual for Prosecutors 71

I.~'.'..
I
I _ _ _ _ _ _, Philippines, 20 _

•I Requesting Party
(Signature over printed name)

SUBSCRIBEDAND SWORNTO before me this dayof _

•I 20 "at , Philippines.

Administering Officer

i'
(Signature over printed name)

•I RECOMMENDING APPROVAL:

Investigating Prosecutor
(Signature over printed name)

•I APPR OVED:

Chief State/CitylProvincial Prosecutor

•I
I
I
I
i I
I
d
72 Revised Manual for Prosecutors

I
"
-------------- - . . . ·• .: ·.· ... 1

~
It>
:So
~
It>
c, INQUEST PROCEDURE o
s: (12 hours for light; 18 hours for less grave offense; 36 hours for grave offenses) ~
'"C
:J ("')

~
'" FILING OF INFO IU
,0'
,-e RECOMMENO
I SUSTAIN ~ I
COURT
I
o
~
fll
WITH
PROBABLE
FILING OF
INFO IN
o
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n
C
~

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COIIRT
I REVERSE I~
DISMISSAL OF COMPLAINT &
>-3
~

I SUSTAIN 1-'" RELEASE OF RESPONDENT ;l


WIO
PROBABLE
RECOMMEND
RELEASE OF
Z
ARREST
rO
PROPERLY
EfFECTED
CAUSE RESPONDENT
I REVERSE ~
FlUNG OF INFO IN ~
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>-3
AFFIDAVIT OF
I
WI WAIVER
j-. I PRELIMINARY
INVESTIGATIOII PROPER
~
EE PROCEDURE
. OF P.I. BUT WITHIN '"d
~
ARREST 15 DAYS
+IR+S5+
OTHER DOC ("')

~ ~~-- PREUMINAAV INVESTIGATION


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~, I
~

REGULARP.1.
+ RELEAse
ARREST Z
NOT
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UJ

G<,
EFFECTED
RECOMMENDS CONTINUE WITilINQUEST
DISMISSAL OF
COMPLAINT +
RELEASE OF
RESPONDENT i
DISMISSAL OF COMPLAINT.
RELEASE OF RESPONDENT

...-..
I PART ill. SUMMARY INVESTIGATION
I
I. GENERAL RULES
I A. CONCEPTS AiW PRINCIPLES

I 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 Il2, as amended, Revised Rules on
I Criminal Procedure) namely those involving offenses in which the prescribed pen-
alty of imprisonment does not exceed four (4) years and two (2) months, regardless

I of the fine.

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

I court procedure in criminal cases covered by Supreme Court Resolution of 1991,


as amended, involving offeuses in which the penalty prescribed by law does not
exceed six (6) months of imprisonment, or fine not exceeding one thousand pesos
i I (Phpl,OOO.OO).

B. COVERAGE
I All offenses punishable by imprisonment ofless than four (4) years two (2) months
and one (l) day, viz:
I 1. Violations of Traffic Laws, Rules and Regulations;

I 2.
3.
4.
Violations of the Rental Law;
Violations of Municipal or City Ordinances;
All other criminal cases where the penalty prescribed by law for the offense charged

I is imprisonment not exceeding six months, or a fine not exceeding (pI,OOO.DO), 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

I property through criminal negligence, this rule shall govern where the imposable fine
does not exceed ten thousand pesos (P 10,000.00).

I Offenses with six (6) months imprisonment or fine ofPl,OOO.OO:

1) Art. 130 - Searching Domicile Without Witnesses


I 2) Art. 144 - Disturbance of Proceedings
3) Art. 151 - Resistance and Disobedience to a Person in Authority or the

I Agents of Such
4) Art. 153 - Tumults and Other Disturbances of Public Order
5) Art. 154 - Unlawful Use of Means of Publication and Unlawful

I Utterances
6) Art. IS5 - Alarms and Scandals
7) Art. 175 - Using False Certificates

I
J 74 Revised Manual for Prosecutors

I
j
~;
.;
8) Art. 178 - Using Fictitious Name and Concealing True Name
I' 9) Art. 179 -
10) Art. 200 -
Illegal Use of Uniforms and Insignia
Grave Scandal
11) An. 202 - Vagrants and Prostitutes (lst Offender)
I 12) Art. 217 - Abandonment of Minor by Person Entrusted With His
Custody
13) Art. 265 - Less Serious Physical Injuries
I 14) Art. 266 - Slight Physical Injuries
15) Art. 239 - Unlawful Arrest
16) Art. 275 - Abandonment of Helpless Person
I 17) Art. 276 - Abandoning a Minor (Paragraph 1)
18) Art. 281 - Other Forms of Trespass

I 19) Art. 282 - Grave Threats (par. 2 [Without Condition])


20) Art. 283 - Light Threats
21) Art. 285 - Other Light Threats

I 22) Art. 286 - Grave Coercion


23) Art. 287 - Light Coercion
24) Art. 288 - Other Similar Coercion
I 25) Art. 289 - Formation, Maintenance and Prohibition of Combination or
Capital or Labor thru Violence or Threats
26) Art. 290 - Discovery of Secrets thru Seizure of Correspondence (Par. 2)
I 27) Art. 291 - Revealing Secrets with Abuse of Office
28) Art. 308 - Theft if the amount involved does not exceed P50.00

i I 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
I I 32) Art. 318 - Other Deceits
33) Art. 329 - Other Mischief (Malicious Mischief)
34) Art. 338 - Simple Seduction

I 35) Art. 339 - Acts of Lasciviousness with the Consent of the Offended
Party
36) Art. 358 - Light Oral Defamation (2nd Par.)
I 37) Art. 363 - Incriminating Innocent Person
38) Art. 364 - Intriguing against Honor
39) Art. 389 - Light Slander by Deed (2nd Par.)
I 40) PD 1227 - Unlawful Entry to U.S. Naval Facilities
41) PD603 - Non-Support

I
I
I
I
I'
Revised Manual for Prosecutors 7S

II
I
II. PROCEDURE
I Within ten (10) days from assignment of the complaint, the investigating prosecutor shall

I initiate the following actions:

1. Act on the complaint based on the affidavits and other supporting documents submit-

I ted 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
I Prosecutor if he finds no probable cause;

3. Prepare a resolution and the corresponding Information for the approval of the Chief
I 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,
I 4. File the Information in court if the resolution is approved. The Information shall not

I contain a certification that a preliminary investigation has been conducted.

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

I procedure under Part IV of this Manual.

I
I
I
I
I
I
I
I
I
i
76 Revised Manual for Prosecutors

I
J
PART IV. PRELIMINARY INVESTIGATION

:;~c I. GENERAL RULES


(:-:-- -
':;'<,.~'
";.',:.:•'. A. CONCEPTS AND PRINCIPLES

Ie 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
It respondent is probably guilty thereof and should be held for trial (Sec. 1, Rule 112, Revised
Rules on Criminal Procedure).

I B. NATURE OF A PRELIMINARY INVESTIGATION

1. It is an Executive Function.

I A preliminary investigation is a non-judicial function. It is essentially executive


in nature (A.lvf. No. Ml;J-00-1256, December 15, 2000). It is a function of the Office
I ofthe National Prosecution Service which is under the control and supervision ofthe
Department of Justice within the executive branch of the government.

I 2. It is Preliminary in Nature.

The investigation is advisedly called preliminary, as it is yet to be followed by


I 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
I committed and that the accused is probably guilty thereof (Mayuga v. Maravilla, 18
SCRA 1115).
I I 3. It is a Summary and Inquisitorial Proceeding.

I 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
I Complaint or Information (U'S. v. Yu Tuico, 34 Phil. 2009; U. S. v. Mar/on, 35 Phil.
606).

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


material damage to a potential accused's constitutional right to liberty and the guar-
antees of freedom and fair play (Drilon v. C.A., 258 SCRA 280 [1996J).
I It is merely inquisitorial and it is often the only means of discovering the persons

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

~ Revised Manual for Prosecutors 77

I
J
I 4. It is a Judicial Inquiry or Proceeding.

II 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 en-

I gender a well-founded beliefthat a crime has been committed and that the respondent
is probably guilty thereof, and should be held for trial" is, like court proceedings,
subject to the requirements of both substantive and procedural due process. This is
I 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
I SCRA 226 [1990J).

Hence, in a preliminary investigation, the prosecutor or investigating officer acts


I as a quasi-judicial officer (A.Ai No. MTJ-00-1256, December 15, 2000) although the
Department of Justice in itself is not considered a quasi-judicial body. (Cruz, Jr. v.

I People, 223 SCRA 439 [1994J)

C. RIGHT TO A PRELIMINARY INVESTIGATION

I 1. It is not a Constitutional Right.

I 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 counselor to remain silent which is
I expressly embodied under Sec. 12 ofArticle III of the Constitution.

2. It is Merely a Statutory Grant.


I 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
I is not unconstitutional (Lozada vs. Hernandez, 92 Phil. j051). For instance, Sec. 6
[formerly Sec. 7] of Rule 112 of the Revised Rules on Criminal Procedure provides

I for the filing of the Information in inquest cases, even without the conduct of a pre-
liminary investigation.

I 3. It is a Personal Right.

The right to a preliminary investigation is also a personal right, which can be


I 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
I I himselffor arraignment and go to trial (People v. Valencia, 214 SCRA 88; People v.
de Asis, 228 SCRA 267).

I In inquest cases, the accused impliedly waives his right to a preliminary inves-
tigation, if he fails to invoke the same within five (5) days from the time he learns

- 78 Revised Manual for Prosecutors


I

I , " ••

",i.:t
..~

of the filing of the Information. This five-day period for the filing of a motion for
I preliminary investigation after an Information has been filed in court against an ac-
cused who was arrested without a warrant, has been characterized as mandatory (Sec.
6, Rule 112, supra.).
I 4. It is a Substantive Right.

I 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).
I D. COVERAGE

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

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

All offenses committed by public officials or employees in connection with the per-
I fonnance of their official duties and functions.

E. QUAJ.'lTUM OF EVIDENCE REQUIRED


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

I 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. i, Rule 112, supra.).

I 1. "Probable Cause" Defined,

I 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 pros-
ecutor as would lead a person of ordinary caution and prudence to believe, or
I entertain an honest or strong suspicion, that a thing is so.

The term does not mean "actual and positive cause" nor does it import abso-
I lute 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

I
'.::.";
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 ofthe charge (Paredes,

I Jr., v. Sandiganbayan, G. R. No.108251, January 31, 1996).

I,
·I..·'.
~~~,~:~-

.-
:~·····
"e>-'·-._
Revised Manual for Prosecutors 79

-f_
II
I .
b. A finding of probable cause needs only to rest on evidence showing that

I 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 reason-
II able 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
'I
I
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]).
I c. A probable cause has been defined as the existence of such facts and cir-

I cumstances as would excite the belief, in a reasonable mind, acting on the


acts within the knowledge ofthe prosecution, that the person charged was
guilty of the crime for which he was prosecuted (Cruz, Jr. v. People, 233

I SCRA 439 [1994]).

2. No Fixed Formula for Determining Probable Cause.


I 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
II given situations and its existence depends to a large degree upou the find-
ing or opinion of the investigating prosecutor conducting the investigation.
However, such a finding should not disregard the facts before the investigat-
I ing prosecutor nor run counter to the clear dictates of reason (Fernando v.
Sandiganbayan, G. R No. 96182. Aug. 19, 1992).

I 3. Sound Discretion of the Prosecutor.

I The institution of a criminal action depends upon the sound discretion of


the prosecutor. He mayor may not IDe the complaint or information, follow
or not follow that presented by the offended party, according to whether the

I evidence, in his opinion, is sufficient or not to establish the guilt of the ac-
cused beyond reasonable doubt.

I I
The approach ofthe 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
I'I
in favor of innocence, while a prosecutor, conscious that he represents the
offended party, may decide to leave the problem to the discretion ofthe court

I I
(Venus vs. Desierto, 198 SCRA 196 [1998}).

Ii

'I
I J
80 Revised Manual for Prosecutors

I
.iF,,,'PURPOSES OF THE CONDUCT OF A PRELIMINARY
,~ii;·1NVESTIGATION

Apreliminary 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.Querobin,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.O~CERSAUTHOmzEDTOCONDUCTPRELIMINARY
::.~;~~~7::-: __ . INVESTIGATIONS

11~r
:{c;"--' -

~~:~f;::'
The following may conduct preliminary investigations (Sec. 2, par. 1, Rule
112, supra):
,T 1. Provincial or City Prosecutors and their assistants;

The prosecutor's authority to conduct preliminary investigation shall


I include all crimes cognizable by the proper court in their respective territorial
jurisdiction, including those committed by government officials in relation to

I their office.

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

I 3. Other officers as may be authorized by law:

I a. The CO.MELEC 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).
I If the prosecutor files an information charging an election offense or
prosecutes a violation of the election law, it is because he has been depu-
I tized by the COMELEC. He does not do so under the sole authority ofhis
office (People v. Basil/a, 179 SCRA 87).

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


investigations and to prosecute all criminal cases involving public

I 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

'I
I
Revised Manual for Prosecutors 81

I
I
, Providing jar the Functional and Structural Organization oj the Office

I of the Ombudsman, and jor Other Purposesj) 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 No. 14996, February
I 04,2007 and Chavez v. CA, G. R. No. 125813, February 06, 2007).

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


I Ombudsman pertains to any act or omission of any public officer or em-
ployee when such .act or omission appears to be illegal, unjust, improper
or inefficient.
I NOTE: A prosecutor has a shared authority to investigate and pros-

I ecute 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

I prosecute Sandiganbayan cases (Uy v. Sandiganbayan, supra.).

Under DOJ Circular No. 26 dated July 3, 2008, a prosecutor


I has legal authority to take cognizance of, and conduct preliminary
investigation/inquest proceedings on complaints filed before himlher
involving violations ofpenal laws, regardless ofwhether or not the re-
I spondents 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
I amended, the Ombudsman may take over at any stage of the investi-
gation, in line with its primary jurisdiction under the last sentence of
Sec. 15(1) oiRA 6770, conformably with the ruling in Honasan Il vs.
I The Panel ofInvestigating Prosecutors ofthe DOJ (GR No. 159747,
April 13, 2004, 427 SCRA 46).

I In other words, resolutions in cases involving government officials


falling within the jurisdiction of the Regional Trial Courts (RTCs),
I Municipal Trial Courts (MTCs) or Metropolitan Trial Courts (MeTCs)
need not be forwarded to the Office of the Ombudsman for review or
approval.
I However, resolutions of cases falling within the jurisdiction of the
Sandiganbayan shall be forwarded by the Chief StatelProvincialiCity
I Prosecutor to the Office of the Ombudsman for review pursuant to its
primary jurisdiction.

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


of the Office of the Solicitor General and other government agencies was

I empowered under Executive Order No. 14, series of 1986, to file and
prosecute before the Sandiganbayan, all cas~s investigated by it under

I
j
82 Revised Manual for Prosecutors

Ii'i:i47',rit",
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. 010. 1 and E.O. No.2 were the ill-gotten cases of
former PresidentFerdinand Marcos.

NOTE: The authority to investigate includes the authority to conduct


a preliminary investigation (Zaldivar v Sandiganbayan, 160 SCRA
843 [1988J; Cojuangco v. PCGG, 190 SCRA 226 [1990J; Virata v.
Sandiganbayan, 202 SCRA 680 [1991J).

I· . ·'.~;.'· .· .,·
.)::2_;E~ 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 afore-
I···:·,.·i . ..... '
mentioned, the jurisdiction is vested in the Ombudsman and other
duly authorized agencies such as the National Prosecution Service
of the Department of Justice, uuless authorized by the President in
I accordance with Sec. 2(b) ofE.a. No.1 (Republic ofthe Philippines
v. Migrinio, 189 SCRA 289 [1990]).

I The authority of the aforementioned officers/ government agencies to


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

I II. PROCEDURE

A. COMMENCEMENT OF THE PRELIMINARY INVESTIGATION


II A preliminary investigation proceeding is commenced:

I 1. by the filing of a complaint by the offended party or any competent person


(Ebarle v. Sucaldito, 156 SCRA 803 [1987J) directly with the office of the
investigating prosecutor;
II NOTE: The sworn complaint shall be accompanied by an accomplished

,I Preliminary Investigation Data Form (please refer to NPS Investigation


Form No. 01, s. 2008 on p. 108 of this Manual) and other supporting
documents.

I 2. by referral from or upon request of the law enforcement agency that investi-
gated a criminal incident;

I NOTE: When the referral came from or is upon the request of a law
enforcement agency that investigated the complaint, the latter shall sub-

II mit the original or duplicate original or certified machine copies of the


affidavitls of the complainantls and his/their witness/es.

I !
Revised Manual for Prosecutors 83

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

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


or

I 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

I 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; (Sees. 3 and 5, Rule 34 a/the COMELEC Rules a/Procedure).

I a. Contents ofthe Complaint

I The complaint filed by the complainant with the prosecutor's office


shall state, among others:

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

I 2. the full and complete name and exact home, office or postal address of
the respondentJs;

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

I 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.
I b. Number of Copies of Affidavits; Other Requirements

I 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.
I Where a complaint charges multiple offenses which cannot be the

I 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.

I If the offense charged is punishable by imprisonment not exceeding


one (1) year or a fine not exceeding Five Thousand Pesos (php5,OOO.OO)
I and. the parties to the case are all residents of the same city or munici-
pality, the complaint shall be accompanied by the certification required

,
il
84 Revised Manual for Prosecutors

I
under Sec. 412 (a) ofRA 7160, "The Local Government Code of 1991."
Otherwise, the prosecutor shall not take cognizance of the case.

rt ee

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

I..· .'
he personally examined the affiants and that he is satisfied that they vol-
-.' untarily executed and understood their affidavits (Sec. 3, par. (a), Rule
112, supra.).

1 B. INITIAL ACTION BY THE INVESTIGATING PROSECUTOR ON THE

I COMPLAINT FILED

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

1. inhibit himself from conducting a preliminary investigation in a case


I wherein->

a. he or his wife or child is interested as heir, legatee, creditor or other-


I wise; or

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


I affinity or to counsel within the 4th degree; or

I c. he has been named executor, administrator, guardian, trustee or


counsel.

I NOTE: In this particular instance, the conduct of the preliminary


investigation shall be re-assigned to another investigating pros-
ecutor.
I 2. dismiss the same ifhe finds no ground to continue with the inquiry (please
refer to NPS INV Form No. 02, s. 2008 on p. 110 ofthis Manual.):
I a. that the offense charged in the complaint was committed outside the
territorial jurisdiction of the office of the investigating prosecutor;
I b. that at the time of the filing of the complaint, the offense/s charged

I therein had already prescribed;

c. that the complainant is not authorized under the provisions ofpertinent

I laws to file the complaint; and

:1
;
Revised Manual for Prosecutors 85

'.1
I
d. that the complainant failed to submit a barangay certification for of-
I fenses covered by the Katarungang Pambarangay Law.

e. that no clearance from the Department of Labor and Employment or


I 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)
I 3. Where the respondent is a child and he is above fifteen (15) years of age

I but below eighteen (18), the prosecutor shall determine whether or not the
child acted with discernment.

I lfhe/she acted with discernment, the prosecutor shall:

a. refer the case to the concerned Lupong Tagapamayapa for the


I diversion proceedings, if the case falls within the jurisdiction of
the Lupon; or
b. conduct the requisite diversion proceedings if the penalty for the
I 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
I offense charged is imprisonment of more than six (6) years, ap-
plying the rules and procedure on the conduct of the preliminary

I investigation as herein provided.

4. issue a subpoena to the respondent, attaching thereto a copy of the com-

I plaint together with the affidavits of witnesses and other supporting docu-
ments (Sec. 3 rbi, Rule 112, supra.). (please refer toNPS INVForms Nos.
03, 04, and 05, s. 2008 on pp. 112, 113and 114 ofthis Manual)
I C. SERVICE OF THE SUBPOENA TOGETHER WITH THE COMPLAINT
AND SUPPORTING AFFIDAVITS AND OTHER DOCUMENTS TO THE
I RESPONDENT/S

1. To Prevent Loss of Documents:


I Whenever circumstances warrant and to prevent the loss of documents

I in the course of the service of a subpoena through ordinary modes, the in-
vestigating prosecutor may require the respondent or other parties to appear
before him on a designated date, time and place and then and there personally

I furnish them with copies of the complaint, supporting affidavits and other
documents.

I At the said or any other setting, the respondent shall have the right to
examine all other evidence submitted by the cotp-plainant and to obtain cop-

11
86 Revised Manual for Prosecutors

II
"I' ies 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
I' at his expense (Sec. 3 (b), par. 2., Rule 112, supra.; Commissioner ofInternal
Revenue v. Court ofAppeals, 257 SCRA 200).

I Failure on the part of the respondent or his counsel/representative


to appear before the investigating prosecutor to obtain copies of the com-
plaint, supporting affidavits and other documents despite receipt of notice or
I subpoena shall be considered a waiver of respondent's right to be furnished
copies ofthe complaint, supporting affidavits and other documents, as well as

I to examine all other pieces of evidence submitted by the complainant.

2. Service to a Respondent Residing in a Distant Place

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

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


Submit Counter-Affidavit

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


residence without leaving any forwarding address, or if subpoenaed, does not

I 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.).

I 4. Objects as Evidence

I Objects as evidence need not be furnished either party but shall be made
accessible for exanaination, copying or photographing at the expense of the
requesting party (Sec. 3, par. (b), Rule 112, supra.).
I 5. Guidelines to be Observed in the Service of Subpoenas

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


guidelines shall be observed in the service of subpoenas:

I a. Service ofsubpoena and all papers! docunaents required to be attached


thereto, shall be by personal service to be performed by the regular

I process servers. In their absence, the cooperation of the Provincial!

:1
i
Revised Manual for Prosecutors 87

:1
Ie
:f;,~~_
I
City/Municipal Station Commanders ofthe Philippine National Police
I (pNP) maybe requested for the purpose.

b. Under other circumstances, where personal service cannot be ef-


I fected 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
I uncertain" or words of similar import, service of subpoena and its
attachments shall be effected by registered mail with return card at

I respondent's known home/office address. On the face of the envelope


shall be indicated:

I 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
I sender of the date that the first notice was made on the addressee;
and

I 2. the typewritten/printed request: "If not claimed within five (5)


days from the first notice, please return to sender."

I c. Within ten (10) days from receipt ofthe unclaimed/returned envelope,


the investigating prosecutor may proceed to resolve the complaint on
the basis ofthe evidence presented by the complainant (Sec. 3(d), Rule
I 112, supra; DOJ Memorandum Circular No. 25 dated 02 October
1989).

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


from mailing, the investigating prosecutor may proceed to resolve the

I complaint on thebasis of the evidence presented by the complainant.

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


I RESPONDENT/S

Within ten (10) days from receipt of the subpoena together with the com-
I plaint 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
I Format "A" s. 2008 on p. 131 ofthis Manual. Copies of the counter-affidavit/s
and supporting documents, if any, shall be furnished the complainant/s by the

I respondents.

I
~ 88 Revised Manual for Prosecutors

I
J
f 1. Extension of Time within which to Submit Respondent's Counter-

I' Affidavit

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


1 shall be allowed or granted by the investigating prosecutor except when the
interest ofjustice demands that the respondent be given a reasonable time or
sufficient opportunity to:
1 a. engage the services of counsel in order to assist him during the preliminary
investigation proceedings;
II b. examine or verify the existence, authenticity or accuracy of voluminous

I records, files, accounts or other papers or documents presented or submit-


ted in support of the complaint; or

I c. undertake studies or research on novel, complicated or technical questions


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

1 Extensions of time to submit a counter-affidavit for any of the reasons


stated above shall not exceed ten (10) days. Additional extensions maybe au-
thorized by the Chief State Prosecutor/Regional State Prosecutor/ Provincial
I or City Prosecutor concerned.

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


II Counter-Affidavit

a. General Rule
I Arnemorandum, manifestation or motion to dismiss signed by counsel

I of the respondent and filed before the prosecution office is a prohibitive


pleading (Commissioner ofInternal Revenue v. Court ofAppeals. supra)
and cannot take the place of a counter-affidavit. It should be ignored.

I Only a counter-affidavit subscribed and sworn to by the respondent before


. the public prosecutor can dispute or put at issue the allegations in the
complaint.
I Thus, a respondent relying on the manifestation, memorandum or mo-
tion to dismiss filed by his counsel is deemed to have not controverted
I complainant's evidence. (DOJ Resolution No. 109, Series of 1990,1. S.
No. 89-243 re the case of "Bulacan Garden Corporations v. Filomena",
OPF, Bulacan.)
I
I
L
I Revised Manual for Prosecutors 89

.\:;
-~,.
" "'.
..

I~~
I
However, if such memorandum, manifestation or motion to dismiss

I 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 as objec-
I tions 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.
I b. Exceptions

I 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

I if the said motion is verified and satisfactorily establishes, among others:

1. the circumstances specified in 11 B (2) of this Part;


I ~ the fact that the complaint, or one similar thereto or identical there-
with, has previously been filed with the Office and has been fully
I adjudicated upon on the merits after due preliminary investigation
proceedings; or

I 3. the extinction of respondent's criminal liability by reason of death,


pardon, amnesty, repeal of the law under which prosecution is sought,

I or any other legal causes.

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

I and Other Similar Pleadings

The filing of a motion for the dismissal of the complaint or for the submission

I of a bill of particulars shall not suspend or interrupt the running of the period for
the submission of the counter-affidavitfs and other supporting documents.

I 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 re-


I garded 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
I to respondent's criminal liability. If there is none, then the complaint may be
dismissed for lack or insufficient evidence and not on the basis of an affidavit of

I desistance.

I
I
j
90 Revised Manual for Prosecutors

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

c."';'::-'
Upon marion of a party or when raised in a counter-affidavit, the inves-
i~~C2 tigating prosecutor shall suspend preliminary investigation proceedings if the
existence of a prejudicial question is satisfactorily established.

I~~ a. Concept of a Prejudicial Question.

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

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

I 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
I accused. To suspend the criminal action, it must not only appear that said
case involves facts intimately related to those upon which the criminal pros-
ecution would be based but also that in the resolution of the issue or issues
I raised in the civil case, the guilt or innocence of the accused would necessar-
ily be determined. (Donato v. Luna, G. R. No.53642, April 15, 1988; Prado
v. People, 133 SCRA 602 [1984J; and Librodo v. Coscolluela, Jr., 116 SCRA
I 303 [1982})

b. Elements of a Prejudicial Question.


I The essential elements of a prejudicial question are:

I 1. the civil action involves an issue similar or intimately related to the


issue raised in the criminal action;

I 2. the resolution of such issue determines whether or not the criminal


action may proceed; (Sec. 5, Rule 111, supra); and
I 3: the cognizance ofthe said issue pertains to another tribunal (C! Ras v.
Rasul, supra; Quiambao v. Osorio, supra).
I c. Issuance ofan Order Suspending the Proceedings Due to the Existence ofa
Prejudicial Question; Written Approval of the Head of Office Required
I All orders suspending the preliminary investigation based on the existence

I of a prejudicial question issued by the investigating prosecutor shall have


the written approval of the Chief State ProsecutorlRegional State Prosecutor/
Provincial/City Prosecutor concerned or his duly designated assistant. (please

I refer to NPS lNVForm No. 06, s. 2008 on p. 115 ofthis Manual)

I II
Revised Manual for Prosecutors 91
I ~I
'J;&>
I Upon approval and issuance of the order, the complaint is considered

I archived.

E. WHEN TO SET CASE FOR CLARIFICATORY QUESTIONING

I The investigating prosecutor may set a hearing for clarificatory questioning


within ten (10) days from the submission of the counter-affidavit/s and other
I documents or from the expiration of the period of their submission, to propound
clariiicatory questions to the parties or their witnesses ifhe believes that there are
matters which need to be inquired into personally by him. (please refer to NPS
I INVForm No. 07, s. 2008 on p. 116 ofthis Manual)

II I 1. No Right to Examine or Cress-Examine

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

I 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,
I I supra).
I
2. RecordINotes During the Clarificatory Hearing
II The investigating prosecutor may record the facts and issues clarified and/
or the questions asked and answer/s given during the clarificatory question-
I ing 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.

I Parties who desire to file an appeal or petition for review of the investigat-
ing prosecutor's resolution may, at their option, cite specific portions of the

I oral testimony of any of the parties/witnesses by referring to the notes taken


by the investigating prosecutor.

I I 3. No Right to Counsel
I
It has been held that there is nothing in the rules which render a prelimi-
I nary investigation invalid without the assistance of counsel (People v. Narca,
275 SCRA 696)

I NOTE: A confession obtained however, during the preliminary investi-


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

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

~ 92 Revised Manual for Prosecutors

I il
--_.--

"
,~-,.,
I
I C<·
F. REPLY-AFFIDAVITS, REJOINDERS AND MEMORANDA; WHEN TO
ALLOW THE FILING THEREOF

The investigating prosecutor shall not require or allow the filing or submis-
I ~:,-' .
sion of reply-affidavits and/or rejoinders except:

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

I 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

I at a fair and judicious resolution of the case.

In such a case, the period for the submission of reply affidavits or rejoinders
I shall in no case exceed five (5) days unless a longer period is authorized by the
Chief Stare Prosecutor/Regional State Prosecutor/ Provincial or City Prosecutor
concerned.
I Neither shall the investigating prosecutor require nor allow the filing or
submission by the parties of memoranda unless the case involves difficult or
I 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

I ten (l0) 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 ofthis Manual).

I G. WHEN COMPLAINTS MAY BE CONSOLIDATED

I The following complaints shall, as far as practicable, be consolidated for pre-


liminary investigation purposes, (please refer to NPS 1NVForm No. 08, s. 2008
on p. 117 of this Manual) and shall be assigned to the prosecutor handling the
I complaint with the lowest docket number or to another prosecutor at the discre-
tion of tlie head of office and the consolidated complaints shall be jointly heard
by said investigating prosecutor:
I 1. when there are charges and counter-charges;

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

I 3. cases involving common parties and founded on factual and/or legal issues of
the same or similar character.
I
;
I
f'
93
Revtsed Manual for Prosecutors

I
I H. ACTIONS ON MOTIONS TO DISQUALIFY!INHIBIT

I 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
I be forwarded to the head of office who may designate another investigating
prosecutor to handle the said preliminary investigation.

I 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
I Acting City or Provincial Prosecutor, to investigate and prosecute a case in
instances where parties question the partiality or bias of prosecutors of a

I particular provincial or city prosecution office (par. 11, DOJ Order No. 318
dated 28 August 1991 [found in Appendix "C" on p. 304 ofthis Manual), as
amended by DOJ Order No. 54 dated 20 February 1992[Appendix "D" on

I p. 308}). (please refer to NPS INV Form No. 09, s. 2008 on p. 118 of this
Manuals.

I I. SUBMISSION OF THE CASE FOR RESOLUTION

The investigating prosecutor shall consider the case submitted for resolu-
I tion:

1. when the respondent cannot be subpoenaed or, if subpoenaed, does not sub-
I mit his counter-affidavit within the reglementary period. In such a case, the
investigating prosecutor shall base his resolution on the evidence presented

I by the complainant (Sec. 3 (d), Rule 112, supra).. or

2. upon submission by the parties of their respective affidavits and supporting

I 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(j), Rule 112, supra).
I J. PREPARATION OF THE RESOLUTION

I 1. When There is Lack of Probable Cause

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

I 2. When There is a Finding of Probable Cause

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


prepare the resolution and the corresponding Information or Complaint in
appropriate cases.
I, 94 Revised Manual for Prosecutors

I
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 IDS 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. Maximiano 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
I~;~·· Sample Resolution on p. 119 ofthis Manual). It shall be prepared in as many
copies as there are parties, plus five (5) additional copies.

It;,.. .
:'~:j~·;:·· . . .-
a. Caption of resolution

I
·~' The caption of the resolution shall indicate the:
,",L:
:~:".--_."" -

I. names of all the complainants and all of the respondents;

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


(1.3. No);

I 3. the offense/s charged;

I 4. the date of the filing of the complaint with the office:

5. the date of the assignment of the case to or receipt of the case record

I by the investigating prosecutor; and

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


I b. Names of parties

I 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.
I Thenamels ofthevictimJs orinjuredpartylies, nottheirrepresentativels,

I 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 involved, followed
I by the name and designation of the police officer representing the police
station.

I
I
Revised Manual for Prosecutors 95

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

I c. Case Number

The number of a case shall be based on the following system of se-


I quential codes:

I • Sequential codes:

o roman numeral - NPS region and OCSP number


I o two (2)-digit number - city/provincial office
o small letter - provincial substation
o PI or INQ - "PI" for regular preliminary investigation or summary
I 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, respec-
I tively)
o five (5) digit number - series number for an entire calendar year

I • lllustrative examples:

I o I-OI-INV-08A-OOOOI
•I Region I
ORSP
• 01
I • INV
• 08
regular
year 2008
PI or summary investigation case

'A month of January


i I • 00001 first regular PI/summary investigation case for year
2008

I o I-05a-INQ-08A-OOOI0
•I Region I
• 05 OPP La Union
I •a
• INQ
Agoo Sub-Station
inquest case

I • 08
• A
• 00010 -
year 2008
month of January
lOth inquest case for year 2008

I o XV-OI-INV-08L-OI000
• XV National Capital Region
I • 01
• INV
OCP Antipolo
regular PI or summary investigation
case
I
j
96 Revised Manual for Prosecutors

I
• 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 .hav-


ing 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; 1

3. applicable laws and jurisprudence; and ~

4. the findings, including an enumeration ofall 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:

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

Revised Manual for Prosecutors 97


I
affidavit of witnesses and documentary and physical evidence. The
I 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
I alphabetically marked as they would be marked during the pre-trial
and trial stages of the case.

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


presentation of the complainant's case should be concise and shall not

I be cluttered with details that are not necessary to show the elements of
the offense.

I 3. Part 3 shall allege the respondent's version of the incident. This must
also be concise.

I 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
I respondent. It shall also contain the conclusion ofthe prosecutor. The
complainant's and respondent's versions of the incident need not be
repeated in this part except to point out excerpts relating to the exis-
I tence or absence of the elements of the crime. Citations of pertinent
laws and jurisprudence should support the conclusionsreached. Where

I numerical values are important, the number shall be written in words


and figures.

I g. Parties Who Need to be Furnished with a Copy ofthe Resolution

The complete names and addresses of the complainant and the re-
I spondent shall be set out at the end of the resolution-after the signature
of the investigating prosecutor and the head of the Prosecutor's Office
concerned under the phrase: "Copy furnished:".
I If the parties are represented by counsel and the latter's appearance is
entered formally in the record, the counsel; not the party, shall be given a
I -copy of the resolution. (Sec. 4, par. I, Rule 112, supra)

I h. Signatures and Initials of Investigating Prosecutor

The investigating prosecutor shall sign the resolution and if the

I resolution consists of two or more pages, the prosecutor shall initial all of
said pages, excluding the signature page.

I
I
J
98 Revised Manual for Prosecutors

I
4. Period to Conduct the Preliminary Investigation

The preliminary investigation of complaints shall be terminated and re-


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

a. capital offenses

I
I.< b.
c.
d
e.
f.
complex issues
with counter-charges
consolidation of related complaints
reassigmnent
otherurgentlvalid reasons
_.:.<~:';-

·'·
.;,.-'
NOTE: Pursuant to Sec. 90 of RA 9165, otherwise known as the
I ::-- Comprehensive Dangerous Drugs Act of 2004, the preliminary investiga-
tion of illegal drugs cases shall be terminated within thirty (30) days frOID
the date offiling.
I e. Written Approval Required in the Dismissal of a Complaint or the Filing

II ,
of an Information in Court

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

I 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).

I K. TRANSMITTAL OF THE RECOMMENDATORY RESOLUTION AJ.~


INFORMATION TOGETHER WITH THE COMPLETE RECORD OF

I THE CASE

I The investigating prosecutor shall forward his recommendatory (please refer


to a Sample Resolution on p. 119 ofthis Manual) and Information, together with
the complete records of the case, to the Chief Stale/Regional State/Provincial/

i City Prosecutor concerned within five (5) days from the date of his resolution.
(Sec. 4, par. 2, Rule 112, supra.)

1. Preparation ofthe Information and its Contents

,* The Information shall be personally and directly prepared by the inves-


tigating 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:

Revised Manuai for Prosecutors 99


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

I • the age and date of birth of the complainant or the accused, if eighteen
(18) years of age or below;
I • the full names and addresses of the parents, custodian or guardian of the
minor complainant or accused, as the case may be;
I • the place where the accused is actually detained;

II • the full names and addresses of the complainant and witnesses;

I • a detailed description of the recovered items, if any;

• the full name and address of the evidence custodian;


I • specify aggravating and qualifying circumstances, if any (please refer to
Department Circular No. 50, s. 2000found in Appendix "En on p. 309 of
I this Manual); and

• the bail recommended, if the charge is bailable.


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

I shown by the record, as an authorized officer, had personally examined the


complainant and his wirnesses; that there is reasonable ground to believe that
a crime has been committed and that the accused is probably guilty thereof;

I that the accused was informed ofthe 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
I approval of the Chief StatelProvinciallCity Prosecutor concerned (Sec. 4, par.
1, Rule 112. supra.). (please refer to Sample Information Format on pp. 123-
,129 ofthis Manual)
I a. Lack of a Certification

I If the preliminary investigation was actua11y conducted by the


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

I b. Designation of Offense Not Binding Upon the Court

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

I
J
100 Revised Manual for Prosecutors

I
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 ac-


companied by a copy of the resolution of the investigating prosecutor, the
complainant's aflidavit, the sworn statements of the prosecution's witnesses,
the respondent's counter-aflidavit 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

l~!"
SCRA 192 [1994]).

1 0

: ' :
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
I 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 promulga-
I tion and release to the parties.

Any violation of the foregoing shall subject the investigating prosecutor


I or the employee of the office concerned to severe disciplinary action.

I L. ACTION OF THE CHIEF STATEIREGIONAL STATEI PROVINCIAL OR


CITY PROSECUTOR ON THE RECOMMENDATORY RESOLUTION

I 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
I heavy workload of the head of office, by either:

1. approving the resolution and directing the transmittal of a copy thereof to the
I parties; or,

•'. 2. disapproving the resolution and returning the same to the investigating pros-
ecutor 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

Revised Manual for Prosecutors 101

I~
I
I a. may tile the corresponding Information in court (except the Regional State
Prosecutor); or

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

I 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.).

I M. REOPENING OF THE PRELIMINARY INVESTIGATION

I After a case under preliminary investigation has been submitted for resolu-
tion under the provisions of the preceding section but before the approval and
promulgation of said resolution, the preliminary investigation may, upon motion

II 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 re-
opening should be with the prior authorization of the Chief StatelRegional State/
I Provincial or City Prosecutor concerned. The preliminary investigation shall be
reopened subject to the following conditions:

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

I 2. the motion is accompanied with the newly discovered evidence and/or re-
spondent's counter-affidavit; and,

II 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.

I No second motion to reopen shall be entertained.

I N. PROMULGATION OF THE RESOLUTION; MODES OF SERVICE

The resolution shall be promulgated by furnishing the parties or their counsel


I a copy thereof by:

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


I or

I 2. registered mail with return card to the parties

I
I
J
102 Revised Manual for Prosecutors

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

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


1:#i:': '
1 -:~'<-":.-.
affidavits of the parties and their witnesses, together with other supporting
evidence and the resolution on the case (Sec. 7(a), Rule 112, supra.).
,";
I., ".' 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.).

I" P. ACTION ON A MOTION FOR RECONSIDERATION

Amotion for reconsideration filed within fifteen (15) days from receipt of the
I 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
proof of service to the opposing party, It must state clearly and distinctly the
I grounds relied upon in support of the motion.

I Where the Information has already been filed in court, the Chief State!
Provincial/City Prosecutor may not give due course to the motion for reconsid-
eration until there is a showing that the movant has filed a motion with the court

I for the suspension of the proceedings, and the court has granted such motion to
suspend proceedings.

I The Office ofthe ChiefState/Provincial/City Prosecutor shall resolve the mo-


tion for reconsideration within the period fixed by the court.

I 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, in-
I forming.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.
I Q. ACTION ON A REINVESTIGATION

I Before the filing of an information in court, a motion for reinvestigation ofthe


case may be filed with the Chief State/Regional State/City/Provincial Prosecutor,

I 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.

I 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
I the motion for reinvestigation (Crespo v. Mogul, 151 SCRA 469; Velasquez v.
Tuquero, 182 SCRA 388).

I'~;
f:"'::\'/,<'
Revised Manual for Prosecutors 103
'I'~;
, .l;
--_. __ ..

I A reinvestigation is proper only if the accused's substantial rights would be

I impaired (Antiporda, Jr. v. Garchitorena, 321 SeRA 551).

1. Instances Where a Reinvestigation May be Conducted


I Based on newly discovered evidence, reinvestigation may be conducted
in the following instances:"
I a. Pursuant to a Court Order for Cases Already Filed in Court

I Where the court orders the reinvestigation of a case, it cannot at the


same time choose the prosecutor who will conduct the reinvestigation

I (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.

I The reinvestigating prosecutor shall conduct the proceedings within


the period prescribed in the court order. The review and approval of
I 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
I 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


I or the Secretary of Justice

The Regional State Prosecutor or Secretary of Justice may order the


I 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/

I Provincial Prosecutor.

The head of office shall assign the reinvestigation of the case to a

I prosecutor, who shall assist the movant in filing a motion to suspend pro-
ceedings in court upon receipt of the order/directive for reinvestigation.
Thereafter, he/she shall immediately conduct and resolve the case Within
I the period prescribed in the order.

I
I
I
I
,
il 104 Revised Manual for Prosecutors

I '.
,----- - - - -

m. RELEVANT JURISPRUDENCE

1. The prosecutor is not bound by the qualification of the crime but by the evidence

I~#;?'
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
I ··c···'·- (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
1 187).

I 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

I when the amended Information was filed, should have asked, but did not, for a
re-investigation of said case within the period offive (5) days from the time he
leamed of the amended Information (Lava v. Gonzales, 11 SCRA 650 [1964J).
I 4. A new preliminary investigation is not called for when the court orders the filing
ofthe correct Information involving a cognate offense, such as unfair competition
I to infringement of trademarks (Sy Lim v. CA, 113 SCRA 334).

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


I 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).
I 6. It is a fundamental principle that when on its face, the Information is null and

I 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 thereaf-
ter, based on the evidence adduced, a new Information should be filed (Cruz, Sr.,

I
l
v. Sandiganbayan, 194 SCRA 474).

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


I
,
preliminary investigations, including substantial compliance with the time limita-
tion prescribed by the law for the resolution of the case by the prosecutor, is part
ofthe procedural due process constitutionally guaranteed by the fundamental law.
I A delay of 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

I SCRA 70).

8. The principle is not, however, applicable where the delay in the termination of the

I preliminary investigation cannot be imputed solely to the prosecution but because

;
of incidents which are attributable to the accused and his counsel (Gonzales v.

r•
Revised Manual for Prosecutors 105

~--w.c,,:
I Sandiganbayan, 199 SCRA 298; Defensor-Santiago v. Garchitorena, 228 SCRA
214).
I 9. In Dee vs. Court ofAppeals (November 21, 1994,56 SCAD 684, 238 SCRA 254),
the Supreme Court reiterated its pronouncement in Crespo vs. Mogul (151 SCRA
I 462), that the Secretary of Justice, as far as practicable, should refrain from en-
tertaining a petition for review or appeal from the action of the prosecutor when

I the Complaint or Information has been filed in court. The matter should be left
entirely for the determination of the Court.

I I
i I
I
I
I
I
I
I
I
I
I
I
I
i I
J 106 Revised Manual for Prosecutors

I
I'
I
I

I
TEMPLATES&SN~LEFORMS
I USED IN THE CONDUCT OF THE
PRELIMINARY INVESTIGATIONS
I
I
I
I
I
I
I
I "·:'" ,

I,'·~,; "
".. .:
I ~"~.,;:

-~i:,:' --.
;

Revised Manual for Prosecutors 107


I NPS Investigation Form No. 01, s.2008

-I Republic of the Philippines


Department of Justice
Nadonal Prosecution Service

I INVESTIGATION DATA FORM

I To he accomplished by the Office

DATE RECEIVED: NPS DOCKET NO.: ~-

I (stamped and initialed):


TIme Received:
Receiving Staff:
_
_
_
Assigned to:
Date Assigned: _
_

I
I To he accomplished hy complainant/counsel/law enforcer
(Use hack portion if space is not sufficient)

COMPLAINANTIS: Name, Sex, Age & RESPONDENTIS: Name, Sex, Age &
I Address Address

I
I LAW/S VIOLATED: WITNESSIES: Name & Address

I
I DATE & TIME of COMMISSION: PLACE of COMMISSION:

I
I 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

I Ifyes, indicate details below.


3. Is this complaint related to another case before this office?' YES NO
If yes, indicate details below.
-=- _
I I.S. No.:
Handling Prosecutor: _

~ 108 Revised Manual for Prosecutors

,
L
. . --- ..... - _.-...
I
I
C E R T I F1 CAT I 0 N*

I 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

I 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,

I (Signature over printed name)

I SUBSCRIBED AND SWORN TO before me this day of ~, 20 __, in

I
I Prosecutor Administering Oath

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


I
I
I
I
I
t:',0,
zf,

;A~eviseQ Manual for Prosecutors 109


fc

i-,.

':11
I
NPS Investigation Form No. 02, s. 2008

Republic of the Philippines


DepartrneniofJustice
NATIONAL PROSECUTION SERVICE

Complainant,
I.S. No. _
For:
versus -

Respondent.
x-------------------------------------------------------------------------------------------------------------------
----ox

RESOLUTION

This refers to the above-entitled complaint for filed by against


respondent _

Section 3(b), Rille 112 of the Revised Rilles 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 complaint for the following
reason(s):

[The investigating prosecutor may choose any of the reasons for dismissing the com-
plaint}

U the offense charged in the complaint was committed outside the territorial jurisdic-
tion of this Office; (Brief explanation)

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

U the complainant is not authorized under the provisions ofpertinent laws to file the
complaint; (Brief explanation)

110 Revised Manual for Prosecutors


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

_ _ _ _ _ _ _ (place), (date) .

lNVESTIGATING PROSECUTOR
APPROVED:

IP ;
.tr-
.,-.,,;
Copy Furnished:
(Head of Office)

I ,-_.
All Parties and/or their counsel
,. .. Address

ii-
II
II
I .

I
I I
I
I I
I
I
Revised Manual for Prosecutors 111
-_._--

NPS INV Form No. 03, s. 2008

Republic of the Philippines


Department of Justice
NATIONAL PROSECUTION SERVICE

Complamant/s,
1.S. No. _
-versus- For: _

Respondent/s.
;(-----------------------------------------)[

SUBPOENA TO COMPLAINANT
(optional but not necessary)

TO:

GREETINGS:

Under and by virtue of the authority vested in me by law, you ate 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
,
! Ii WITNESS MY HAND this _ _ day of , 200_ at _
;1 J
Philippines.

,
INVESTIGATING PROSECUTOR

112 Revised Manual for Prosecutors


"

"I ;',
~(

':6t'r;:'
!::~21;;: NPS INV Form No. 04, s.2008
.-.'.-,
Republic of the Philippines
Department of Justice
I" NATIONAL PROSECUTION SERVICE.

I
Complainant/s,
I -versus-
1.S, No.
For:
_
_

I Respondent's.

I x-----------------------------------------x

I . SUBPOENA TO RESPONDENT/S

TO:
I
I GREETINGS:

Under and by virtue of the authority vested in me by law, you are hereby directed to submit
I your counter-affidavit and other supporting documents or affidavits ofyour witness/es, if any, to be
sworn to before me on , 200_ at _ _ a.mzp.m, Attached is a copy

I 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

I 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.

I WITNESS MY HAND this


_ _ _ _ _ _, Philippines.
day of 200 at

I
INVESTIGATING PROSECUTOR
I
I
, '; < ';.,
Revised Manual for Prosecutors 113

1;..~ ss-
I
,I NPS INV Form Nil. 05, s.2008

Republic of the Philippines

I Department of Justice
NATIONAL PROSECUTION SERVICE

I
I Complainant/s,
LS. No. _
-versus- For: _
I
I Respondent/s.
x------------------------------------------x

I SUBPOENA TO RESPONDENT
(To obtain copies of the complaint and other supporting evidence)

I TO:

I
GREETINGS:
I 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
I the complaint, supporting affidavits and other evidence submitted by the complainant at
_ _ _ _ _ _ _ _ _ _ _ _-', on ,200_ at _ _ a.mzp.m.
_

I You or your representative are/is likewise entitled to examine all other evidence submitted by
complainant on the date and time herein specified.

I You are hereby WARNED that failure on your part to comply with the subpoena shall be
considered as a waiver of your 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.
I WITNESS MY HAND this day of 200_ at
_ _ _ _ _ _ _ _, Philippines.
I
I INVESTIGATING PROSECUTOR

I, 114 Revised Manual for Prosecutors

'.
NPS INV Form No. 06, s. 2008

f;~~ Republic of the Philippines


Department of Justice


, ,c···,.

':;'"
;:;;,'-··-.':0

:":
NATIONAL PROSECUTION SERVICE

~ .
•'
" ,,:,'
.)~\t:
- versus -
Complainant,
1.S. No.
For:
_

I :.-'::

Respondent.
I x------------------------------"----------x

I ORDER

I 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

I deemed submitted for resolution.

SO ORDERED.

I _______, Date.

I
I INVESTIGATING PROSECUTOR

I
I
I
I
F-_-o
Revised Manual for Prosecutors l1S

It
Ii
- -----------

NPS INV Form No. 07, s.2008


Republic of the Philippines
Department of Justice
NATIONAL PROSECUTION SERVICE

Complainant/s,
1.S. No. _
-versus- For: _

Respondent/s.
)[------------------------------------------x
SUBPOENA FOR CLARIFICATORY HEARING

TO: (Complainant/a 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.mJp.m., for the
conduct of clarificatory questioning where only the undersigned can ask questions. You are hereby
I informed of your right to be represented by counsel in the said hearing. If you so desire, you may
,., I
I 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


II _ _ _ _ _ _., Philippines.

INVESTIGATING PROSECUTOR

116 Revised Manual for Prosecutors


NPS INV Form No. 08, s.2008
Republic of the Philippines
Department of Justice
'NATIONAL PROSECUTION SERVICE

Complainant,
LS, No, _
- versus - For:

Respondent,
x-------------------------------------- X

Complainant,
1,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 ProsecutorlAsst. Provincial Prosecutor/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 the prescribed period of sixty (60) days from receipt
of the assignment,

SO ORDERED,

_ _ _ _ (Place), _ _ _ _ (Date) _

CITYiPROVINCIAL/CHIEF STATE PROSECUTOR

Revised Manual for Prosecutors 117


NPS !NY 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 PROSECLJTOR / ASST. PROVINCIAL PROSECUTOR / STATE
PROSECUTOR of the Office of the CitylProvincial
Prosecutor of is hereby designated as Acting CitylProvincial Prosecutor
of to conduct the preliminary investigation in 1.S. No.----c --,--,,-
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.

HI.!i '

~ ;

"

118 Revised Manual for Prosecutors


-~-- ---

r
1+:.,:
Sample Resolution

I
~c ~
:-~- -

Republic of the Philippines


I Departmentof Justice
NATIONAL PROSECUTION SERVICE

I: .. ':"

,
I ."

Complainant,
1.S. No. _
I - versus - For:

I Respondent.
x-------------------------------------------x
I
RESOLUTION
I I
This resolves the above-entitled complaint for violation of Sec. 19(b), paragraphs (I) and
I (2), ofRA 8239, otherwise known as the "Philippine Passport Act of 1996", filed by the Department
of Foreign Affairs against a.k.a. _

I
1 ~~
Record shows that on April 4, 2007, respondent went to the Inter-Agency
Committee Against Passport Irregularities (rCP!) Secretariat and voluntarily surrendered Passport

I Nos. MM860451 andHH160901, both issued in Manila and in the name of a.k.a. on 19April 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
I: 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
!I 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
I 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

I- Economic and Cultural Office (TEeO). In the course thereof, she was asked to get a clearance
from the DFAregarding her change of name.
"'·
e -;;

I -:,
~;~~:'.-
....".", -
Complainant, thus, accuses respondent for assumption of identity and use of passports
issued under an assumed name, under Sec. 19(b), pars. I & 2, ofRA 8239. He claims that re-
spondent personally applied for Passport Nos. HHI6090 1 and MM860451 under the name a.k.a.,
~ >~:.
Is..
' --..

f~;J~
I
Revised Manuai for Prosecutors 119

; 't:
;'~..
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 Department's computer 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 ofIssue: 25 January 1997/Manila

Passport No. VV0166339


Date & Place ofIssue: 30 Apri12007/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 MM8604S1 showing the visas and Bureau of Immigration departure and anival
stamps.

Finally, complainant claims that based on the application records of Passport Nos.
iV1M86045l andVVO 166339, itclearly 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. MM86045land
HH16090 1. The fact that her photograph appears on both passports does not mean that she au-
thored any kind of falsity, the truth being that she merely paid an old woman "fixer" the amount
ofP8,000.OO, 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 family's living conditions,
she being the sole breadwinner. Then, she met a Taiwanese boyfriend who expressed interest to
marry her. Together, they went to the TEca to secure legal capacity to marry, whereupon she was
told to clear with the DFA the matter of her having used the subject passports in the name of a.k.a
At 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.
j
: ·r
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 ofjob opportunities
, I 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.

120 Revised Manual for Prosecutors


_._--- -- - ---------------

II~?: !f;f\:;:r;~

::~[~:j-ri~
..
." We now resolve.

ITJ~
i
...

ii- Attached to the record are copies of the application records of Passport No. MM86045l
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

I ··,":"--
passport application, thereby making it appear that she is a.k.a, the person named in Passport
No. MM86045l, respondent has assumed the identity of a.k.a in the said passport application, in
violation of Sec. 19(b)(l) ofRA 8239.

I ·~ _,J -- , Sec. 19(b)(l) ofRA 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

I -:":
,- "
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. MM86045l

I 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.

I I Respondent's 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
I malum prohibitum, good faith is not a valid defense. Secondly, evidence adduced shows that
Passport No, :MM:86045I is a renewal of Passport No. HHl60901. Thus, it appears that respondent
has assumed the identity of a.k.a not only once but twice, in 2001 and 2004, which is anathema
I to any claim of good faith and/or lack of criminai 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
I subject passport applications. She has, therefore, knowingly participated in the commission of the
prohibited act. Even assuming gratia argumenti that somebody else has instigated the commission

I 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 latter a
sizeable amount.

I However, considering that the application record of Passport No. HHl6090l had already
been disposed of, respondent could no longer be prosecuted for assumption of identity in relation
I to the said passport for lack of documentary evidence to prove the violation. As regards Passport
No. MM86045l which is amply supported by the passport application record, probable cause
exists against respondent for violation of Sec. 19(b)(l) ofRA 8239.
I Evidence adduced likewise sufficiently shows that after securing Passport No. MM86045l

'I in violation of Sec. 19(b)(I) ofRA 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

I'0::<
",-'
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,
,~c
',·
~-::~"." - Revised Manual for Prosecutors 121

I ~,'''(;;~:
-
"" ',.-:~,-
.
.'i.--
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) ofRA 8239.

While we agree tliat 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 oflaws 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) ofRA 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:

A P PRO VE D:

Copy Furnished:
DIRECTOR _
Passport Division
DEPARTMENT OF FOREIGN AFFAIRS
Roxas Blvd., Pasay City

Secretariat, Inter-Agency Committee


Against Passport Irregularities (JCPI)
DEPARTMENT OF FOREIIGN AFFAIRS
Roxas Blvd., Pasay City

Respondent
(Address)

122 Revised Manual for Prosecutors


Sample Information 1

I 1Jt' Republic of the Philippines


REGIONAL TRIAL COURT
, i~~: National Capital Judicial Region
Branch . Pasay City

I I~,: People of the Philippines,


Plaintiff,
, i"-·_·-·_ CRlM. CASE NO. _
I .",
(1.S. No. )
'?-'-~
'- versus • For: Violation of Sec. 19(b)(1)
,-
-:-;c:-
ofRA8239
I::c- _ _ _a.k.a. --'
-At-Large-
I. (c/o address),
Accused.
:I-------
I INFORMATION
I~ The undersigned State/Assistant Provincial!Assistant City Prosecutor, hereby accuses
_ _ _ _ _ _ _ a.k.a with violation of Sec. 19(b), paragraph 1, of RA

I 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 ofthis 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 ofthe Philippine Government, as she has in fact secured
the issuance ofPassport No. MM860451 for her own use and benefit, 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>

Revised Manual for Prosecutors 123


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 op-
portunity to submit controverting evidence. I further certify that the filing of this Information is
with the prior authority and approval of the Chief StatelProvinciallCity Prosecutor.

~.'

I
.u '
City of Manila, Philippines, December 7,2007

Investigating Prosecutor

SUBSCRlBED AND SWORN to before me on this day of


_ _ _ _ _ _ _ _ _ _ _ in the City of Manila, Philippines.
I

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 ofPassport No. MM860451 in the
name of a.k.a. and Passport No. VV0166339 in the name of )

3. AND OTHERS

BAIL RECOMMENDED: TlllRTY THOUSAi"ID (P30,OOO.OO) PESOS

Enclosures:

Approved Resolution dated December 7, 2007


Complaint·Affidavit of with attachments
Counter-affidavit of dated September 11, 2007

124 Revised Manual for Prosecutors


Sample Information 2

,' ,~;'.
Republic of the Philippines
REGIONAL TRIAL COURT

I'-'" , -'~~},r
;./;-)';
National Capital Judicial Region
Branch , Pasay City

I',.':, '
:~;_.:~::-'
,' • .1'.'.
'c'·', People of the Philippines,
Plaintiff,

i:",",' :.... ,~'/'..-

-.~-{ . - versus -
CRIM. CASE NO.
(I.S, No.
For: Violation of Sec. 19(b)(2)
-:-
)

I' ':D/
:;~;;:-'
'1--:::'~-'

,c" _ _ _ _ _ _a.k.a. _
ofRA8239

k ;{':."'::
~.J,,"...~ -At-Large-

Il' (c/ 0 address)

x
Accused.
,"------x

'I INFORMATION

,I The undersigned State/Assistant Provincial/Assistant City Prosecutor, hereby accuses


_ _ _ _ _ _ _ a.k.a with violation of Sec. 19(b), paragraph 2, ofRA 8239, otherwise known
as "The Philippine Passport Act of 1996", committed as follows:

I 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 de-
'I parture 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

,I false statements in the application for passport, in violation ofRA 8239 as well as
the rules and regulations prescribed in relation thereto.

CONTRARY TO LAW.

"
I
City of Manila for Pasay City, December 7,2007,

I Investigating Prosecutor

, I" continued, next page>

". Revised Manual for Prosecutors 125

l
''' ' ~i
.~
'''':-
~'_.:'''-''
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 op-
portunity to submit controverting evidence. I further certify that the filing of this Information is

-
" .: with the prior authority and approval of the Chief StatelProvincial/City Prosecutor.
" ",
• City of Manila, Philippines, December 7, 2007
U,i,!

~ Investigating Prosecutor

U
,,: SUBSCRIBED AND SWORN to before me on this day of
'I <I _ _ _ _ _ _ _ _ _ _ _ in the City ofManila, Philippines.

"
~ ,~!~ ':
WITNESSES:

1. _
c/o Secretariat, Inter-Agency Committee
Against Passport Irregularities
Departmentof Foreign Affairs
Roxas Blvd., Pasay City

2. THE RECORDS CUSTODIAN


(or his dilly authorized representative)
Consular Records Division
Department of Foreign Affairs
Roxas Blvd., Pasay City
(To bring application records and supporting documents ofPassport No. MM860451 in the
name of a.k:a and Passport No. VV0166339 in the name of )

3. AND OTHERS
1 !'
I
BAIL RECOMMENDED: THIRTY THOUSAND (P30,OOO.OO) PESOS

Enclosures:
Approved Resolution dated December 7, 2007
Complaint-Affidavit of with attachments
Counter-affidavit of dated September 11, 2007

126 Revised Manual for Prosecutors


Sample Information 3

Republic of the Philippines


REGIONAL TRIAL COURT
National Capital Judicial Region
Branch , Pasay City

I.:~~
_z,2?:;L People of the Philippines,
'1"':,·

,
Plaintiff,
:;'J~'i;-~-_
... ':."j-,:
....•.. CRIM. CASE NO. _
-"(st· - versus - (I.S. No )
}/<'c'
For: Violation of Sec. 19(b)(2)

I'" ofRA8239

a.k.a.
-At-Large-
II (c/o address),
Accused.
x------------x
I
INFORMATION
I
The undersigned State!Assistant Provincial/Assistant City Prosecutor, hereby accuses _
I I ---=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:
III
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
I 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

I 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

I thereto.

CONTRARY TO LAW.
1 City of Manila for Pasay City, December 7, 2007.

I
, Investigating Prosecutor
continued, next page>

127

i'"
Revised Manual for Prosecutors

e:
:~:<
-----------

I
~
I
CERTlFICATION

,I I HEREBY CERTIFY that r 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

'I 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 op-

I portunity to submit controverting evidence. I further certify that the filing of this Information is
with the prior authority and approval ofthe Chief State/Provincial/City Prosecutor.

I
I
City of Manila, Philippines, December 7, 2007.

'I Investigating Prosecutor

I SUBSCRIBED Al'ID SWORN to before me on


_ _ _ _ _ _ _ _ _ _ _ in the City of Manila, Philippines.
this day of

I WITNESSES:
1. _

I cio Secretariat, Inter-Agency Committee


Against Passport Irregularities
Deparnnent of Foreign Affairs
I Roxas Blvd., Pasay City

2. THE RECORDS CUSTODIAl'!


I (or his duly authorized representative)
Consular Records Division
Department of Foreign Affairs
I Roxas Blvd., Pasay City
(To bring application records and supporting documents ofPassport No. MM860451 in the
name of a.k.a. and Passport No. VV0166339 in the name of )
I 3. AND OTHERS

I BAll.. RECOMMENDED: THIRTY THOUSAND (p30,OOO.OO) PESOS


-

I Enclosures:

iI Approved Resolution dated December 7, 2007


Complaint-Affidavit of with attachments
Counter-affidavit of dated September 11, 2007

i', I
J
128 Revised Manual for Prosecutors
I
~~ ~

kc;
F,:
.. ::~:!':
,It ..-'-
Sample Information 4
Republic of the Philippines
REGIONAL TRIAL COURT

'., I:
~-~;-."'. -
National Capital Judicial Region
Branch , Makati City

People of the Philippines,


Plaintiff,
CRlM. CASE NO. _
I I - versus - (1.S. No.
For: Violation of Sec. 19(b)(2)
)

Ie ofRA8239

_ _ _ _a.k.a. _

I: -At-Large-
(c/o address),
Accused.
I x- -x

I INFORMATION

I The undersigned StatelAssistant Provincial!Assistant City Prosecutor, hereby accuses _


______________ a.k.a. with violation of Sec. 19(b),
paragraph 2, ofRA 8239, otherwise known as "The Philippine Passport Act of 1996", committed
I as follows:

I 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.

I MM860451 in the name of a.k.a., born on February 21,1978 in Marikina, in her ap-
plication 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
I RA 8239 as well as the rules and regulations prescribed in relation thereto.

CONTRARY TO LAW.
I City of Manila for Pasay City, December 7,2007,

I
I Investigating Prosecutor

J~.,~.:~
continued, next page>

i :
·
:i'-',_",

.,.,.,;:....

'it_
Revised Manual for Prosecutors 129
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 op-
portunity to submit controverting evidence. I further certify that the filing of this Information is
with the prior authority and approval of the Chief State/ProvincialJCity Prosecutor.

City of Manila, Philippines, December 7, 2007

Investigating Prosecutor

SUBSCRIBED 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

BAILRECOMMENDED: TIllRTY THOUSAND (p30,OOO.OO) PESOS

Enclosures:

Approved Resolution dated December 7, 2007


Complaint-Affidavit of with attachments
Counter-affidavit of dated September 11, 2007

130 Revised Manual for Prosecutors


NPS SAMPLE FORMAT "A", s.2008

Republic of the Philippines


Department of Justice
NATIONAL PROSECUTION SERVICE

Complainant,
1.8. 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 ofthe issue
or issues raised in the said civil case, the guilt or innocence of the accused would necessarily be
determined, undersigned finds the existence of a prejudicial question, thus, warranting the suspen-
sion ofthis preliminary investigation.

Accordingly, the preliminary investigation III the above-entitled case IS hereby


SUSPENDED.

SO ORDERED.
_ _ _ _ _ _"Date.
continued, next page>

Revised Manual for Prosecutors 131


I
I Investigating Prosecutor

I
I 1
RECOMMENDING APPROVAL:

I
I APPROVED:

CITY/PROVINCIAL;CHIEF STATE PROSECUTOR


I
I
I
I
I ,

I
-I
j

I
'I
il
:.
~

,
;~1
,
,I
132 Revised Manual for Prosecutors
NPS SAMPLE FORMAT "B", s.2008

CERTIFICATION

I HEREBY CERTIFYthat I have personally examined the affiantand I am fully convinced


thatthat he/she has voluntarily executedhis affidavit/sworn-statement andunderstood the contents
thereof.

Investigating Prosecutor

Revised Manual for Prosecutors 133


~j,'

PRELIMINARY INVESTIGATION
(within 60 to 90 days)

"0

~
~
1+ SUBPOENA
....... RESPONDENT
....... CLARIFICATORY
.......
II
W/GROUNO RESOLUTION

~
RESPONDENT COUNTEIlS QUESTIONING

~, ,;11 ~
til
>-3
REPLY/REJOINDER I ....
~
COMPLAINT-
AFFIDAVIT I I I ~
....
0
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co

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\. NO GROUND I....... I RESOLUTION
DISMISSAL

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~

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~

._. . .... ~____ ~. __.__ ___ ~~._. __ ,.~~~_~.~ __ .


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PRELIMINARY INVESTIGATION

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(within 60 to 90 days)
'cw"
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~ FILING OF INFO N
"0 IN COURT

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FILING OF ..

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PETITION FOR

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L . ,
WI PROBABLE

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<If ~
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' WIO PROBABLE ,
CAUSE

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..,IVESI "- r - - - ,_ _,

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/E sz

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RECOMMEND ACTION BY REVIEW
DISMISSAL OF CPIPPICSP
COMPLAINT

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FILING OF INfO
!

IN COURT

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~~- --------- --- ------------- -- .--.. -- ------------------------- - ~~


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PRELIMINARY INVESTIGATION
(within 60 to 90 days)
• .J f"'-!.
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"d
~
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~
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PURSUE FILING
OF INFO IN
• I
- .... f BAil I ' " I
I I ARRAIGNMENT
I . I I
I I 11 COURT' I I - I I I I
FOR FILING
OFINFO IN
COURT
~
~

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I I~_--,
I REVERSE I. DISMISSAL OF
COMPLAINT
I_ M .... !PETITION FOR CERTIORARI (COURT OFAPPEALS) ~
r:/).

MRiAPPEAL d
C)
PETITION
FOR REVIEW
~
,...
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YES - 'PETITION FOR CERTIORARI (COURT OFAPPEALS)
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DISMISSAL
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COURT
I......
B I
BAIL I . . . f
I
ARRAIGNMENT
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. , . ,I; -:,"(~:"'.:~':i'~<;i.
f "
; - ",~::-

PART V. ARRAIGNMENT AND PLEA


I
I. GENERAL RULES'
I A. PRINCIPLES

I 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.
I 2_ Before, during and after the arraignment, the trial prosecutor has well- defined duties to

I perform.

3. The filing of a petition for review affects the arraignment of the accused in court.
I B.CONCEPTS

I
• 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.
l3{2], 1987 Constitution ofthe 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 opportnnity to
plead (14 Am. JUT., p.939, G_ V Jacinto, Criminal Procedure).
,I 2. Plea - is the reply ofthe 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,

I
• •

n.
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 (Osborn s Concise Law Dictionary, 15th
Ed John Burke, p. 254).

PROCEDURE

I I A. DUTIES OF THE TRIAL PROSECUTOR

'.,. 1. Before the Arraignment of the Accused

The trial prosecutor shall examine the Information vis-a-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.

'. 1-
He shall ensure that the private offended party appears at the arraignment for
purposes of plea bargaining, determination of civil liability and other matters requir-
ing his presence (Sec.I (j), Rule 116, Revised Rules on criminal procedure).

,I
/(.'::
-\
,,,,
;, ..
}}:{i:
• Republic Act No. 4908, which requires that in criminal cases where the com-
plainant is about to depart from the Philippines with no de:finite date ofreturn,

I
Revised Manual for Prosecutors 137
*I the accused should be arraigned without 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

I accused or other grounds beyond the control of the court.

2. During the Arraignment

I I 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

I
I duty of the trial prosecutor to be present during the arraignment. He must be atten-
tive at all times 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

I
I
ascertained and the Information being read to the accused is the same Information as
filed.

I
,
3. After the Arraignment

The trial prosecutor shall prepare his witnesses for trial. Government witnesses,

I 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 ofthe technical aspects to be proved.
I I R. EFFECT OF THE FILING OF A PETITION FOR REVIEW

I 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 ofthe arraignment

I I 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.

I C. APPLICABLE RULES IN CASES WHERE THE ACCUSED PLEADS GUILTY


TO A LESSER OFFENSE

I 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 of-
fense, when applicable. This will enable the trial prosecutor to confer with the private
I
,.
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.
I I 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 impos-
I I able therefor is prision correccional (maximum of six [6] years) or less or a fine not
exceeding Php12,OOO.OO.

,J
J
138 Revised Manual for Prosecutors

I
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 PhpI2,000.OO, the trial
prosecutor shall first submit his comment/recommendation to the Provincial or City

IL·'·. .·
'....'_'e".'·...
·'::if-:i:.
;,c,.;";:.
,,-..;;.,
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 a plea of guilty to a lesser offense. For this purpose,

',I.:.
I .:\i: .• :- .:
':'~:-.,
'~';
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.

S. 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

,
I" .. "
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

I"
~
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 NOTALLOWED


I" However, the plea of guilty to a lesser offense may not be allowed where it so con-
travenes logic and common sense as to be unconscionable, thereby resulting in injus-
I tice. 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
I necessarily produces death, while frustrated or attempted homicide does not (Amatan v.
Aujero, 248 SCRA 511 [1995J)'

I E. WHEN ACCUSED PLEADS GUILTY TO A CAPITAL OFFENSE


When the accused pleads guilty to a capital offense, the trial prosecutor must pres-
I· ent 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.
I m. RELEVANT JURISPRUDENCE

I 1. In criminal cases, it is the duty of the accused, in addition to the other pleas authorized
by law, to plead whether he is guilty or not ofthe crime charged. In that way, and in that
way only, can an issue be created upon which the trial shall proceed (Golez vs. CA. 237

I SCRA 685).

2. The period of suspension shall not exceed sixty (60) days counted from the filing of the

I 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 (Luman law v. Judge Eduardo Peralta, Jr; G. R. No. 164953, February 13,2006).
I

:i'"
Revised Manual for Prosecutors 139

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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 (Black's Law
Dictionary, 5" Ed.• 1979. p.1 037).

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.).

n. SUBJECT MATTERS OFA 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 (Black's Law Dictionary, 5" Ed.
1979, p. 1037).

Plea bargaining is not allowed under the Dangerous Drugs Act where the
itnposable 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 admitted, 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 cer-
tain documentary evidence, e.g., medical or death certificate, autopsy report,

140 Revised Manual for Prosecutors


forensic chemistry report, ballistic report, Philippine Overseas and Employment
Administration (POEA) certification, a certification from the Firearm and
Explosive Unit (FEU) of 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.

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 sub-


mitted during the preliminary investigation may be resorted to or availed of to
demonstrate or establish the defense's theory:

C. MARKING FOR IDENTIFICATION OF EVIDENCE OF THE


PARTffiS;

D. WAIVER OF OBJECTIONS TO THE ADMISSffiILITY 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.).

m, NON-APPEARAi~CEAT 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 ac-
complished by interviewing the complainant and other witnesses and after a thor-
ough 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.

Revised Manual for Prosecutors 141


------- _. - - - -

I

B. DURING THE PRE-TRIAL PROCESS

The prosecutor shall bear in mind that in the course of the trial, any stipula-
tions/admissions entered into during the pre-trial will help him prove his case
'I beyond reasonable doubt and that every act or incident should be proved by the

I. testimony of qualified and competent witnesses.

C. AFTER THE PRE-TRIAL CONFERENCE

II The trial prosecutor 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.

•I
I
V. RELEVAJ"IT 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
(pule v. Court ofAppeals, 162 SCRA 446).
I
iI
2. A proffer ofevidence 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
I, of due process (People v. Judge Santiago, 174 SCRA 143).

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'J 142 Revised Manual for Prosecutors

~
PART VII. BAIL
I. CONCEPTS

A. PURPOSE OF BAIL

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The purpose ofbail is to entitle the accused to provisional liberty pending trial
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(Bravo, Jr. v, Borja, 134 SCRA 466 [1985]).

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B. NATURE OF THE RIGHT TO BAIL

The right to bail is guaranteed by the Constitution. It is the duty of the pros-
ecutor to recommend such amount ofbail to the courts ofjustice as, in his opinion,
would ensure the appearance of an accused person when so required by the court.

I
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C. BASIS OF BAlL

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

•I
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attendant circumstances. (Bravo v. Borja, supra.)

2. To allow bail on the basis of the penalty actually imposed would require a
consideration not only ofthe evidence ofthe commission of the crime but also
I
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

I to render a decision in the case. Such procedure would defeat the purpose
of bail, which is to entitle the accused to provisional liberty pending trial.

I 1_. (Ibid.)

D. ~NBAlLISNOTREQummD

'I Bail shall not be required of 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
I I
thousand pesos (p2,OOO.OO), or both, where said person has established to the
satisfaction of the court or any other appropriate authority hearing his case that he

•I 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

I extracted through force or intimidation;

, Revised Manual for Prosecutors 143

l'iii" ,
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3, when he is found to have previously escaped from legal confinement, evaded
sentence, or jumped bail;

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 previ-


ously 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 violations of municipal or city ordinance for at least two times.
(Sec. 1, R. A. No, 6036)

No bail shall also be 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 sen-
tenced, he shall be released immediately without prejudice to the continuation of
I
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
I1 (30) days of preventive imprisonment.

! .. I
i A person in custody for a period equal to or more than the minimum of the
".'1•,•
I :
principal penalty prescribed for the offense charged without application of the
Indeterminate Sentence Law or any modifying circumstance, shall be released on
[,
d, a reduced bail or on his own recognizance, at the discretion ofthe 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.

144 Revised Manual for Prosecutors


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The following are the instances when bail is a matter of right:

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1. Before or after conviction by the Metropolitan Trial Court, Municipal Trial

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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.)

I,,1~:::::
..,,:;;2-
B. WHEN BAILIS A MATTER OF DISCRETION


• • •• • 1. Before conviction, bail is a matter of discretion when the offense charged is
--~:.~: punishable by death, reclusion perpetua or life imprisonment.

2. Upon conviction by the Regional Trial Court of an offense not punishable by


I~ death, reclusion perpetua or life imprisonment, admission to bail is discre-
tionary. The Regional Trial Court may grant or deny bail depending on the

I I existence or non-existence of any of the circumstances below:

".';.,
a. That he is a recidivist, quasi-recidivist or habitual delinquent or has com-

I mitted the crime aggravated by the circumstance of reiteracion;

b. That he has previously escaped from legal confinement, evaded sentence

I '":
or violated the conditions of his bail without valid justification;

c. That he committed the offense while under probation, parole or condi-


I tional pardon;

d. That the circumstances of his case indicate the probability of flight if


I released on bail; or

e. That there is undue risk that he may commit another crime during the
I pendency of the appeal.

3. Ifupon conviction, the Regional Trial Court imposes the penalty of imprisonment
I in excess of six (6) years, but not exceeding twenty (20) years, the accused shall
be denied bailor his bail shall be cancelled, upon a showing by the prosecution,

I with notice to the accused, of any of the foregoing circumstances.

4. Ifnone of the circumstances enumerated above exists, the grant of bail becomes
I a matter of right. (Sec. 5, Rule 114, supra.)

C. RIGHT TO NOTICE, MANDATORY


I 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.
I 129670, Feb. 1,2000)

I
;· Revised Manual for Prosecutors 145

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When bail is a matter of discretion, it is the right of the prosecutor to be noti-
fied so he could present evidence to prove that the evidence of guilt ofthe accused
is strong. Denial of such notice deprives the State of its right to be heard, thereby
making the bail proceedings void.
,I D. RlGHT TO BAIL IN INQUEST CASES

'I 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 applica-
tion for bail or release on recognizance.
I
,I E. GUIDELINES IN RECOMMENDING BAIL

, II
L When the bail is a matter of right, the prosecutor shall use the DOl Bail Bond

'I ',',j
Guide as his primary guide in recommending bail.

2. However, where justice demands reduction or increase of the amount of bail


I I 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

'.'I
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by the trial prosecutor for the reduction or increase of the amount of bail
shall be with the prior approval of the Chief StatelProvincialJCity Prosecutor
concerned.
u
3. The prosecutor should be able to refute, among others, the following factors
during the hearing on the application for bail:

I a. nature and circumstances of the crime;

I I b. character and reputation of the accused;

c. the weight of the evidence against him;

I ,
d. the probability of the accused appearing at the trial,

I e. whether or not the accused is a fugitive from justice

I ,
i
f. whether or not the accused is under bond in other cases. (People v.
Dacudao, 170SCRA 489).

F. CRlTERIA IN RECOMMENDING THE AMOUNT OF BAIL


I In recommending the amount ofbail to be granted by the court, the prosecutor
I
II'
shall take into consideration the following standards and criteria:

146 Revised Manual for Prosecutors


1. financial ability of the respondent/accused to post bail

2. nature and circumstances of the offense;

I , ~: ,."
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3. penalty for the offense charged;

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4. age, state of health, character and reputation of the respondent/accused under
detention;
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5. weight of the evidence against the respondent/accused under detention;

6. forfeiture ofother bonds and pendency ofother cases wherein the respondent/

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accused under detention is under bond;

7. the fact that respondent/accused under detention was a fugitive from justice
when apprehended; and
I:·
8. other factors affecting the probability of the accused appearing at the trial.
I (Sec. 6. Rule n 4, RevisedRules on Criminal Procedure; DOJ Circular No.4,
series of1996)

I G. RULES IN COMPUTING THE BAIL TO BE RECOMMENDED

To achieve uniformity in the amount ofbaii to be recommended, the follow-


I ing rules shall be observed:

I: ."".- .
1. Where the penalty is reclusion perpetua, life imprisomnent, reclusion per-
petua to death Dr death, bail is not a matter of right; hence, it shall not be
recommended.
1/ -r.
2. Where bail is a matter ofright and the imposable penalty is imprisonment and!
or fine, the bail shall be computed on the basis of the penalty ofimprisomnent
1';, applying the following rules:

a. where the penalty is reclusion temporal (regardless of period) to reclu-


t sion perpetua, bail shall be computed based on the maximum of reclusion
temporal.

I I b. where the imposable penalty is correccional or afflictive, bail shall be


based on the maximum of the penalty, multiplied by Php2,OOO.OO. A frac-

I tion of a year shall be rounded-off to one year.

c. For crimes covered by the Rules on Summary Procedure and Republic


I: 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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Revised Manual for Prosecutors 747
d. For crimes of reckless imprudence resulting in homicide arising from
violation of the Land Transportation and Traffic Code, bail shall be
,Php30,OOO.OO per deceased person.

e. For violation ofBatas Pambansa Blg.22, bail shall be fifty per cent
(50%) of the amount of checks but should not be less than Php2,OOO.OO
nor more than Php30,OOO.OO.

3. Where the imposable penalty is only a fine, bail shall be computed as fol-
lows:

a. fine not exceeding Php2,000.OO, bail is not required.

b. Fine of more than Php2,000.00, bail shall be 50% of the fine but should
not exceed Php30,OOO.OO.

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 exceed-
ing Php30,OOO.00 except when covered by the Rules on Summary
Procedure.

4. Bail based on the maximum penalty, multiplied by PhplO,OOO.OO shall be


applied to the following offenses under the following laws:

a. Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of2002);

b. Republic Act No. 6539 (Anti-Camapping Act), as amended by RA 7659;

c. Republic Act No. 7659 (for other crimes covered by it);

d. Presidential Decree No. 1866 (lliegalPossession ofFirearms, 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)

148 Revised Manual for Prosecutors


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 prosecution's 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
I
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penalty is death, reclusion perpetua or life imprisonment (Tabao v. Espino. 257
SCRA 298 [1996]). He must therefore be prepared for such a hearing.

I; •...
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I. EXCEPTION TO THE RULE ON NON-BAILABLE OFFENSES

I~
An exception to the rule on non-bailability of offenses punishable by reclu-
sion 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

I, ~:-:"
penalty one degree lower than that prescribed by law (Bravo v. Borja, 134 SCRA
466 [l985J), aside from the fact that RA9344, otherwise known as the Juveniie
Justice and Welfare Act of 2006, provides that every child in conflict with the law

r (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 baii.

I J. RIGHT OF THE PROSECUTION TO PRESENT ALL EVIDENCE


DURING THE BAIL HEARING

I~ 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
I 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

I,: (People v. San Diego, 26 SCRA 522 [1968J).

K. EFFECT OF A DENIAL OF THE OPPORTUNITY TO PRESENT


I EVIDENCE FOR PURPOSES OF THE PETITION FOR BAIL

• .'
-',- -
Should the prosecution be denied ofthe 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 for bail is filed by the accused and the court orders a con-
I tinuous 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

I petition to bail, the trial prosecutor shall, before the presentation of his first wit-
ness, manifest in open court that the evidence to be presented in the hearing of

J
':;: Revised Manual for Prosecutors 149

l 'j~,~
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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.

M. CAJ.'lCELLATION OF THE BAlL BOND

Upon application filed with the court and after due notice to the prosecutor,
the bail bond may be canceled upon surrender of the accused or presentation of
proof ofhis death.

The bail bond shall be deemed automatically canceled upon acquittal of the
accused or dismissal of the case or execution of the final judgment of convic-
tion.

In all instances, the cancellation shall be without prejudice to any liability on


the bond.

Ill. OTHER MATTERS

A. RELEASE ON RECOGNIZANCE; GUIDELINES

1. Whenever allowed pursuant to law or the Rules ofCourt, 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., AMNo. 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. I ofRA 6036 and RA 9344
(Juvenile Justice and Welfare Act) ;

2. The accused shall sign, in the presence of two (2) witnesses ofgood standing
in the community, a sworn statement binding himself, pending final dec i -
sion of his case, to report to the Clerk of Court hearing his case periodically
every two (2) weeks;

150 Revised Manual for Prosecutors


3. In case the Court opts to place the accused under the custody of the respon-
sible person in the community, the prosecutor should see to it that:

i\;':i~:~~: a. such person under whose custody the accused is placed, shall execute his
I~ own affidavit stating his willingness to accept custody of the accused;
and
f "c;

-~- b. the accused shall also include in his own affidavit mentioned above, a
statement that he binds himself to accept the responsibility of the
I::
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citizen so appointed by the court as his custodian.

-.< IV. RELEVANT JURISPRUDENCE


I~~~ 1. The Court should not even allow a motion for bail to be set for hearing unless it
tOe; has acquired jurisdiction over the person of the accused and the case by its filing
in Court. (Dinapol v. Baldonado, 225 SCRA 110)
,
L',-T"C';
2. In order that a person can invoke his right to bail, it is not necessary that he
I-~ 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 ofthe Bill of Rights, and this right he retains unless and until
1 ":
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he is charged with a capital offense and evidence of his guilt is strong. ( Herras
Teehankee v. Rovira, 75 Phil. 634)

I
c"
- 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

I.
-'.;,"--
entitled to be released on bail as a matter of right pending the preliminary investi-
gation. 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

I the trial court for cancellation of the bail. (Vide Tolentino v. Caano, Jn, 322 SCRA

•.--
559)

;,- 4. If the prosecution is denied the opportunity to present, within a reasonable time,
0,'._

;'~ 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

1 ::'/--:'-- which, the court's 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 Ru1es on Summary Procedure
(Martinez vs. Paguio, 394 SCRA 287 [2002]).

I
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Revised Manual for Prosecutors 151
I~ PART VIII. ARREST
I 1. REMEDY, OF THE PROSECUTOR WHEN NO WARRAt'lT OF ARREST

I!I
WAS ISSUED BY THE JUDGE

If the investigating judge is satisfied that there is probable cause but did not issue

I 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

II
immediately file the Information so that the Regional Trial Court judge may issue
the warrant for the arrest of the accused. (Samulde v. Salvani, Jn, 165 SCRA 724
[1988])

IJ II. REQUEST FOR A COPY OF THE RETURN

If a warrant of arrest has been issued, the prosecutor may request the warrant
I officer that he be furnished with the officer's return relative thereto. The prosecu-
lor shall, as far as practicable, coordinate with the witnesses from time to time to

~I
ascertain the whereabouts of the accused pending the latter's arrest.

ill. RELEVANT JURISPRUDENCE

I 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 cir-
cumstances sufficiently strong in themselves to create the probable cause of guilt

I 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
1. Appeals, 287 SCRA 589)
I 3. A letter-invitation is equivalent to arrest. Where the invitation comes from
·1 a powerful group composed predominantly of ranking military officers and the
designated interrogation site as a military camp, this is obviously a command or

I
an order of arrest. (Sanchez v. Demetriou, 227 SCRA 627 [1993].

4. A police officer is not justified in using unnecessary force in effecting arrest or

I.~ 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. CFL 189 SeRA 217)

152 Revised Manual for Prosecutors


PART IX. TRlAL

I. GENERAL RULES

A. CONCEPT

A trial is a judicial examination of the claims at issue in a case which is pre-


sented 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
causes 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.

n. TRIALPREPARATION

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
prosecution's 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 ofthis
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.

Revised Manual for Prosecutors 153


I
, 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.

I
, As far as practicable, crucial witnesses shall be summoned by the trial pros-
ecutor 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

I 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 ex-

I hibits, identifying each by letter or number, describing it briefly, and stating its
specific purpose or purposes.

I 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.

I
j
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
I the accused, among other things, to enable him to have a clear view of the
defense of the accused.

I E. DISCHARGE OF ACCUSED TO BE STATE WITNESS

I
i
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
I for the State. The motion shall indicate that:

1. There is absolute necessity for the testimony ofthe accused whose discharge
I is requested (Sec. 17(a), Rule 119, Rules on Criminal Procedure).

2. There is no other direct evidence available for the proper prosecution ofthe
I offense committed, except the testimony of said accused, (Sec. i7[b], Rule
119, supra) as when he alone has knowledge of the crime, and not when his

I testimony would simply corroborate or otherwise strengthen the evidence


in the hands of the prosecution (people v. Borja, et. al.i06 Phil.i88).

I 3. The testimony ofsaid accused can be substantially corroborated in material

, 154
points.

Revised Manual for Prosecutors

IJ
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.

~·.
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


I,.~,~,:~.'.~ 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

I ::,.:\ 6981, otherwise known as "The Witness Protection, Security and Benefit Act"
if he complies with the other requirements of said Act.
', ,
·
I.>.' G. OTHER PERSONS WHO MAY AVAIL OF THE WITNESS PROTECTION
PROGRAM

1-,
::~,".

":' The trial prosecutor shall recommend the admission to the Witness Protection
Program of the following persons:

I' 1. Any person who has witnessed or has knowledge of or information on the
commission of a crime and has testified or is testifying or is about to testify
before any judicial or quasi-judicial body, or before any investigating au-
I'" -',-" thority, Provided, that:

I • 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;

I -.;
• his testimony can be substantially corroborated on its material points;

• he or any member of his family within the second civil degree of con-

•• sanguinity 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
1-· or corrupted to prevent him from testifying, or to testify falsely or eva-
sively, because or on account of his testimony; and

I • he is not a law enforcement officer, even ifhe would be testifying against


other law enforcement officers. In such a case, only the immediate

1 members of his family may avail themselves of the protection provided


for under the Act.

I
J",:,
,.---;«
Revised Manual for Prosecutors 155

I -t~(::-
".C.'_
,;;
,-
I ,
I

I
,

;
I 2. Any person who has participated in the commission of a crime and desires

I to be a witness for the State, whenever the following circumstances are


present:

I • 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;
I • there is absolute necessity for his testimony;

I • there is no other direct evidence available for the proper prosecution of


the offense committed;

I, • his testimony can be substantially corroborated on its material points;

I • he does not appear to be the most guilty; and

• he has not at any time been convicted of any crime involving moral
I turpitude.

H. MOTIONS FOR POSTPONEMENT BY THE ACCUSED


I The trial prosecutor shall vigorously oppose any motion for postponement
initiated by the accused, unless for valid and compelling reasons. He should
I make of record his objections thereto, leaving to the court's discretion the dis-
position of the subject motions (People v. Borja, supra).

I 1. DISCONTINUANCE OF PROCEEDINGS

During the presentation of the prosecution's evidence, the trial prosecutor


I shall not cause or allow the discontinuance of the proceedings except for other
similarly compelling reasons not attributable to him (Ibid.).

I J. PRESENTATION OF EVIDENCE

I The trial prosecutor is bound to complete the presentation of his evidence


within the trial dates assigned to him. After the lapse ofsaid dates, he is deemed
to have completed his evidence presentation. However, based on serious rea-
I sons, he may file a verified motion to allow him additional trial dates at the
discretion of the court.

I
I
J 156 Revised Manual for Prosecutors

I
,
ill. 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 oftime for good cause
(Sec. 2, par. 1, Rule 119, supra.).

The time limitation is not applicable to:

1. Criminal cases covered by the Rille on Summary Procedure or where the


penalty prescribed by law does not exceed six (6) months imprisonment,
or a fine of one thousand pesos (Pl,OOO.OO) or both, irrespective of other
imposable penalties, is governed by Rille 123.

2. RA 4908 (An 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 ofR. A. No. 7610, otherwise known as "the Child Abuse Act").

4. Violations of the Comprehensive Dangerous Drugs Act of2002 (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 terrirorial jurisdiction of the courts shall

Revised Manual for Prosecutors 157


- - - - -

undergo mandatory continuous trial and shall be terminated within sixty

,
(60) days from commencement of the trial.

B. ORDER OF TRIAL

Trial shall proceed in the following order pursuant to Sec. 11, Rule119 of

I the Revised Rules on Criminal Procedure:

1. The prosecution shall present evidence to prove the charge and, in the proper

I:, 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.

Ii 3. The panies may then respectively present rebutting evidence only, unless

a; the COlin, in furtherance of justice, permits them to present additional evi-


dence bearing upon the main issue.

I
IH
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.
I 5. However, when the accused admits the act or omission charged in the

-I
Complaint or Information but interposes a lawful defense, the order of trial
may be modified accordingly.
J
C. PRESENTATION OF WITNESSES

The order in the presentation of witnesses shall, as far as practicable, con-

I
!
form to the logical sequence of events obtaining in the case on trial in order to
present a clear, organized and coherent picture to the coun of the prosecution's
evidence.

I For example, in the case ofprosecution under the Comprehensive Dangerous


I 1 Drugs Act of 2002, the trial prosecutor should present the forensic chemist who
I examined the dangerous drug ahead ofthe other witnesses in order that the court
may at once have a view of the real evidence (either the prohibited or regulated

Ii
drug subject of the case) and so that such evidence may be immediately identi-
fied by the other witnesses thus avoiding the recall of witnesses later on.

'I
I
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.

I
I ,

I 158 Revised Manual for Prosecutors

I
D. CONDITIONAL EXAl\fiNATION OF WITNESS FOR THE
PROSECUTION

The trial prosecutor shall move for the conditional examination of a pros-
ecution 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
'ie: a waiver (Sec. 15, Rule 119, Supra.).

i
~F~
E. CROSS-EXAlmNATION OF THE DEFENSE WITNESSES

The prosecutor shall endeavor to secure well in advance all available in-
formation 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.

I
" ';;~
;.'r;,":<
R REBUTTAL EVIDENCE

The presentation and nature of rebuttal evidence will depend on the effect
which the defense evidence may have caused on the prosecution's 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

I.;'
.';'.. :-..-".
refute, rebuttal evidence is unnecessary.

G. REQUEST FOR SUBPOENA


I···· In all cases requiring the appearance in coun of a witness for the purpose
;;;:"" .
. of testifying upon a report (e.g. medico-legal, autopsy, chemistry, ballistics,

I· 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.

I
:
I'.
. . :.:.- -:»
H. CUSTODY OF PHYSICAL AND REAL EVIDENCE PENDING TRIAL

,I ',"
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 narure, the trial prosecutor shall ensure that measures are taken to
il provide for secondary evidence consisting of photographs, or pictures of the
physical and real evidence, which evidence shall be attached to the records of

f the case.

, " ..
.
~"-'-'
Revised Manuai for Prosecutors 159
III. RELEVANT JURISPRUDENCE

1. The general rule is that motions for postponement are granted only upon meritori-
ous ground and no party has the right to assume that his motion will be granted.
(De Guia v. Guerrero, Jr., 234 SCRA 625 [1994J);

2. Under Sec. 9, Rule 119 ofthe Revised Rules on Criminal Procedure, the petition-
ers have the burden of proving the factual basis of their motions for the dismissal
of the Informations on the ground of a denial of their right to a speedy trial and to
a speedy disposition of the cases against them. They were burdened to prove that
such delay caused by the prosecutor was vexatious, capricious or whimsical. On
.lj' the other hand, the prosecutor was burdened to present evidence to establish that

t the delay in the submission of his report on reinvestigation of the cases was rea-
sonably attributed to the ordinary process ofjustice, and that the accused suffered
no serious prejudice beyond that which ensued after an inevitable and ordinary
to delay. (Corpuz v. The Sandiganbayan, 442 SCRA 294 [2004J; Lumanlaw v. Judge
::ot' Edgardo Peralta, Jr; G. R. No. 164953, February 13, 2006);

I 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

I accomplice and accessory are distinct from each other. As long as the commis-
sion 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.);

*I
'j :
I!
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,

I
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 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 had the opportunity to cross-examine the witnesses for the
prosecution who had testified, (people v. Carpio, 68 Phil. 490);
i
II' 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:
I
i : a. when an offense is committed by more than one person, it is he duty of the

I
~ i

I'
prosecutor to include all of them in the Complaint or Information (Sec., Rule
110, Rules ofCourt);

I 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

160 Revised Manual for Prosecutors


one of them after complying with the conditions prescribed by law. (Sec.
9, Rule 119);

c. there is nothing in the rule from which it can be inferred that before a person
can be presented as a government witness, hat he be first included as a co-
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 per-
son, himselfparticeps 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. Einsol, 100 Phil. 713.);

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 SeRA 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 oth-
ers 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).

Revised Manual for Prosecutors 161


I
I
I PART X. APPEAL / PETITION FOR REVIEW
I
I. GENERAL RULES
I A. WHAT MAY BE APPEALED

I The resolutions of the Chief State ProsecutoriRegional State Prosecutorl


Provincial or City Prosecutor in criminal cases may be the subject of a petition

I for review or appeal.

B. VENUE FOR THE FILING OF THE APPEALI

I PETITION FOR REVIEW

1. Appeals from/petitions for review of the resolution of the Provincial/City


I Prosecutors in cases which fall under the jurisdiction of the Regional Trial
. Court shall be filed with the Office of the Secretary of Justice.

I 2. Appeals from/petitions for review of the resolutions of the Provincial/City


Prosecutors in cases cognizable by the Metropolitan Trial Courts, Municipal
Trial Courts and Municipal Circuit Trial Courts shall be filed with the Office of
I
,
,
the Regional State Prosecutor. The resolution ofthe Regional State Prosecutor
is final.

I,
,
3. In the National Capital Region, the appeals/petitions for review of the City
Prosecutors in cases falling under the jurisdiction of the Metropolitan Trial

I Courts, Municipal Trial Courts and Municipal Circuit Trial Courts shall be
filed with the Office of the Chief State Prosecutor. The resolution ofthe Chief

I State Prosecutor is final.

The provisions of the preceding paragraphs on the finality of the resolu-

I tion of the Chief State Prosecutor and the Regional State Prosecutor notwith-
standing, 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
I of the Chief State Prosecutor and the Regional State Prosecutors in the cases
appealed to the them.

I C. PERIOD TO FILE THE APPEALI


PETITION FOR REVIEW

I The appeal/petition for review must be filed within fifteen (15) days from
receipt of the questioned resolution by the party or his counselor if a motion
I for reconsideration has been filed, within fifteen (15) days from receipt of the

,
, 162 Revised Manuai for Prosecutors

J
resolution denying the motion for reconsideration. Only one (1) motion for re-
consideration shall be entertained.

D. FORMAl"ID 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;
"'5"
1
';?·:"',
",\-
~r-:'- 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;

I
::.:;~~,
:""
',,.;>
7. proof of payment of the appeal fee
-
,

I
',,~c",-:
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".

I E. DOCUMENTARY ATTACHMENTS

I The appellant/petitioner shall append to his appeal/petition a legible duplicate


original or certified true copy of the resolution appealed from together with leg-
ible copies of the complaint, affidavits/sworn statements (including their transla-
I tions, 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 submit-
I ted, 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.
I
I

,
,, Revised Manual for Prosecutors 163

1-:'
I
F. EFFECT OF FAILURE TO COMPLY WITH THE REQUIREMENTS

I 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
I for the dismissal of the appeal.

I G. WHEN Ai~ INFORMATION HAS BEEN FILED IN COURT

In appeals :filedbefore the Secretary ofJustice/ChiefState Prosecutor/ Regional


I State Prosecutor and when an information has already been :filedin court, it is the
duty of the appellant to immediately inform the concerned appellate authority

I 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
revrew,

I
H. WHEN ACCUSEDIAPPELLAi~TIS ARRAIGNED DURING PENDENCY
I OF APPEALIPETITION FOR REVIEW

When the accused is arraigned during the pendency ofthe appeal, the prosecu-
I tor concerned shall likewise immediately inform the Secretary of Justice/Chief
State Prosecutor/Regional State Prosecutor of such an arraignment.

I 1. APPELLEE'S COMMENT

I Within a non-extendible period of fifteen (IS) 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

I 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.

I J. SUMMARY ACTION

The Secretary of Justice/Chief State Prosecutor/Regional State Prosecutor


I may dismiss the appeal outright for being patently without merit or manifestly in-
tended 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
I review shall not be given due course if the accused has already been arraigned.

I K. WITHDRAWAL OF THE APPEAL / PETITION FOR REVIEW

The appeal/petition for review may be withdrawn at any time before it is

I finally resolved, in which case the questioned resolution shall stand as if no ap-
peal/petition has been taken.

-J 164 Revised Manual for Prosecutors


1- -- --

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.

I
·; ::.~~~· 2. When an Information Has Been Filed in Court
s->:
·'t:,t·',-
If the case is pending appeal and an Information has been filed in court,

II~;~;~i?::
the appellant shall inform the court of the filing of a motion for reinvesti-
gation with the Office of the Secretary/Regional State Prosecutor and shall
ask the court to defer proceedings. The reinvestigation of the case shall be

I
·~ · conducted by the prosecution office from which the appeal was taken. (see
-'~;:~-.i;
Marcelo vs. CA., 235 SCRA 39 [1994]; Roberts vs, CA., 254 SCRA 207
I 1"-.: [1996]; Dimatulac vs. Vilon, 297 SCRA 679 [1998]; Solar Entertainment vs.
How, 338 SCRA 511 [2000]; Community Rural Bank ofGuimba vs. Talavera,
~.:-
,''-J,
o
.- ,.:.~. 455 SCRA 34 [2005])

I' The Office of the Secretary or the Office of the Regional State Prosecutor,
as the case may be, shall then issue a resolution directing the reinvestigation
of the case, if stiillegally feasible. When reinvestigation is granted, it shall
I

I
I take place in the Office of the Prosecutor from which the petition was taken.

M. DISPOSITlON OF THE APPEALIPETTION FOR REVIEW


I,
1- ~-
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:
Ii 1<
1. that the petition was filed beyond the period prescribed in Sec. C hereof;

II
I
2. that the offense has prescribed;

3. that there is no showing of any reversible error;

I I
4. that the procedure or requirements herein prescribed have not been complied
with;
I
I
. I' .
Revised Manual for Prosecutors 165

!I
-
I 5. that the questioned resolution is interlocutory in nature, except when it sus-

I pends the proceedings based on the alleged existence of prejudicial question;

6. that the accused had already been arraigned when the appeal/petition for re-

I view was taken, or was arraigned during the pendency of the appeal/petition;
or,

I 7. that other legal or factual grounds exist to warrant a dismissal.

I N. MOTION FOR RECONSIDERATION

The aggrieved party may file with the offices concerned, a motion for recon-
I sideration within a non-extendible period of fifteen (15) days from receipt of the
resolution on the petition/appeal.

I He/She shall:

I I. furnish the adverse party or his counsel and the prosecution offices concerned
with copies thereof;

I 2. submit proof of such service; and

3. pay the corresponding legal feels.


I Only one (I) motion for reconsideration shall be entertained.

I O. EFFECT OF FILING THE APPEAL/


PETITION FOR REVIEW

I 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

I Prosecutor as the case may be, directs otherwise.

Pending the resolution of the appeal/petition for review, the accused may

I 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.

I II. RELEVANT JURISPRUDENCE

1. Sec. 79 of the Revised Administrative Code defines the extent of a department


I I Secretary's 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 of-

I ficer had done in the performance ofhis duties and to substitute the judgment of the
former for that of the latter. The power of control implies the right of the President

I 166 Revised Manual for Prosecutors

J
"
f
Ji-
ii!'
#:t
c_'Y
(and naturally of his/her alter ego) to interfere in the exercise of such discretion as

I
'~';:
::~~; may be vested by law in the officers of the national government, as well as act in
:--~~ : lieu of such officers (Noblejas v. Sales, 67 SCRA 47).

I 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
I 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
I: 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,
I should be believed (Vda. De Jacob v. Puna, 131 SCRA 148 [1984]).

I 3. The DOJ Order allows the filing of an Information in court after the consumma-
tion of the preliminary investigation even if the accused can still exercise the right
to seek review of the prosecutor's recommendation with the Secretary of Justice

I (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
I from taking cognizance of an appeal, by way of a petition for review, by an ac-
cused 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
I petition for review or appeal from the action of the prosecutor, when the Complaint
or Information has already been filed in Court (Marcelo v. Court ofAppeals, 235
SCRA 39 [1994J). Reiterated in the case of Community Rural Bank of Guimba v,
I Talavera, 455 SCRA 34 [2005}).

5. Petitioners were not barred from appealing from the resolution holding that only
I homicide was committed, considering that their complaint was for murder. By
holding that only homicide was committed, the Provincial prosecutor's Office of

I Pampanga effectively "dismissed" the complaint for murder. To rule otherwise


would be to forever bar redress of a valid grievance, especially where the investi-
'" gating prosecutor demonstrated what unquestionably appeared to be unmitigated

I - ~"
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


I be filed before the Secretary of Justice rules on an appeal from a resolution in a
preliminary investigation ( Community Rural bank of Guimba v. Talavera, supra.)

I 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

I. (de Ocampo v. Secretary ofJustice, G. R. No. 147932, Jan. 25, 2006 citing Memo.

'"':;-
i:ti,~:
Circular No. 58, citing Dee v. CA, 238 SCRA 254).

1·"·' ~i\.· Revised Manual for Prosecutors 167

I
- ~~~_:
;L'~'_ -
-
I PART XI. MISCELLA1~OUS MATTERS

I I. HOLD DEPARTURE ORDERS AGAINST ACCUSED PERSONS

I To ensure that those accused of criminal offenses will not evade prosecution and
punishment by leaving abroad during the pendency of criminal proceedings, trial

I 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" onp. 294 ofthis Manual) against the accused and for the
I I Bureau of Immigration to implement the same in the following cases;

1. Violation ofPD 1866, as amended by RA 8294, codifying the laws on illegalJun-


I lawful possession, manufacture, dealing in, acquisition or disposition of firearms,
ammunition and explosives;

I 2. Crimes against public order (e.g. rebellion, sedition, etc.) defined and penalized
in the Revised Penal Code;

I I 3. Violations ofRANo. 6435, "The Dangerous Drugs Law", as amended (now RA


9165 otherwise known as the Comprehensive Dangerous Act of 2002);

I 4. Violation ofRA No. 6539, "The Anti-Carnapping Law";

I 5. Violations of Sees, 3601 to 3603, inclusive, and Secs. 3605 to 3610, inclusive of
the Tariff and Customs;

II 6. Bank frauds and frauds against public treasury and other crimes involving eco-
nomic sabotage.

I II. CAN'CELLATION OF TRAVEL DOCUMENTS

In cases where the accused has jumped bail and fled to another country, the trial
I prosecutor shall immediately report (please refer to NPS Sample Format "D-l " on
p. 296 this Manual) to the Chief State ProsecutorlRegional State/Provincial/City

I Prosecutor who shall, with the approval of the Secretary of Justice (please refer to
NPS Sample Format "D-2" on p. 297 ofthis Manual), make appropriate representa-
tions with the Department of Foreign Affairs for the cancellation of the accused's

I 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.
I
I
J 168 Revised Manual for Prosecutors

J
-

m. HANDLING OF CRIMINAL COMPLAINTS FILED AGAINST PUBLIC


OFFICERS Al~ EMPLOYEES

In addition to DOl Circular No. 26 dated July 3, 2008 (please refer to Appendix
"G" on p. 313 ofthis Manual), the following guidelines shall also be observed in the
investigation and prosecution of cases against public officers and employees pursuant

I
' X~ to OMB-DOJ Circular No. 95-001, series of 1995, to wit:
.':','":

It
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.


I -":~'
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 regu-
lar courts shall be investigated and prosecuted by the Office of the Provincial/City
Prosecutor which shall rule thereon with finality.

I: 3. The preparation of the Information shall be the responsibility of the Investigating


Prosecutor who conducted the preliminary investigation. The resolution recom-

I mending prosecution, together with the duly accomplished Information, shall be


forwarded to the appropriate approving authority.

I, 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
I' of all complaints filed with their respective offices against public officers and
employees.

I rv NOTIFICATION OF PROSECUTOR OFTHE FILING OF Al'lAPPLICATION


FOR PROBATION

I 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

I service of sentence (Sec. 4, PD 968, as amended by PD 1527).

A. COMMENT ON APPLICATION FOR PROBATION


I The trial prosecutor shall submit his comment to the application for proba-
tion within ten (10) days from receipt of the notification of the filing of said
I application (Sec, 4, PD 968, as amended, supra.).

I
J Revised Manual for Prosecutors 169

I',: e-
----
I B. RELEASE OF APPLICANT FOR PROBATION

I Pending resolution of the application for probation, the accused may be re-
leased on temporary liberty under his bail filed in the criminal case. In case no

I bail was filed or if the defendant is not capable of:filingone, 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

I (Sec. 5, ibid.).

C. OBJECTION TO GRANT OF PROBATION f


I The trial prosecutor shall object to the application for the grant of probation
I
I

I
in the following instances:
r
I
1. ifthe defendant fails to comply with any of the following criteria for the grant
of probation: I
}
a. the offender is in need of correctional treatment that can be provided most l
i
I effectively by his commitment to an institution; or

b. there is undue risk that during the period of probation, the offender will

I commit another crime; or

c. probation will depreciate the seriousness ofthe offense committed (Sec. 8,

I PD 968).

2. if there is no post-sentence investigation conducted by a probation officer


I (Sec. 5, ibid.);

3. if the application is filed after an appeal from the conviction is perfected (Sec.
I 4, ibid.) or,

4. if the applicant is one -


I a. sentenced to more than six (6) years and one (1) day;

I b. convicted of an offense against the security of the state under the Revised
Penal Code, to wit:

I 1. Art. 114 (Treason);

I 2. Art. 115 (Conspiracy and proposal to commit treason);

3. Art. 116. (Misprision of treason);


I
J
, 170 Revised Manual for Prosecutors
-
4. Art. 117 (Espionage);

5. Art. ·118 (Inciting to war and disloyalty in cases of war;


I
IfC -").,
6. Art. 119 (Violation of neutrality;

~~~
7. Art. 120 (Corresponding with hostile country);

8. Art. 121 (Flight to enemy's country);

I:~·./';"
:~0~!
9. Art. 122 (Piracy in general and mutiny on the high seas);

I I·
:;,~{~;.i

",·'c
..
ije,-,-
:~,,,,. ,~
10. Art. 123 (Qualified piracy)

11. RA 9165 when applicable

If
: ...' ':.-
c. who has been previously convicted by final judgment of an offense pun,
ishable by imprisonment of not less than one (1) month and one (1) day
I··" and/or a fine of not more than Two Hundred Pesos (php200.00);

d. who has once been on probation under Presidential Decree No. 968 (Sec.
I I'-. _:.~
,'-',''>
9, PD 968).

D. HEARING FOR THE REVOCATION OF PROBATION


I'~ In case one who is placed on probation is arrested for a serious violation ofthe
·I·· ':"
conditions of probation and brought before the court for a hearing ofthe violation
charged, the prosecutor shall represent the State in said hearing if the revocation
is contested. (Sec. 15. ibid.).

1 The defendant may be admitted to bail pending such hearing. In such a case,
the provisions regarding release on bail of persons charged with a crime shall be

I· V.
applicable to the defendant (Sec 15, ibid., as amended by PD 1257)

PROCEDURE IN CASES INVOLVING CHILDREN

I A. INQUEST PROCEEDINGS

1 1. If the Child is the Complainant

The presence of the child during the inquest proceedings shall not be re-
I quired unless his statement is found wanting in material or substantial details
and it is considered necessary to have him further examined, in which event
the inquest prosecutor shall:
I
I Revised Manual for Prosecutors 171

1
-
,* a. give the case first priority;

, b.'

c.
have the proceedings conducted as far as practicable in the Provincial/
City Prosecutor's Office during regular office hours;

conduct the examination of the child in the presence and with the as-

I sistance ofhis/her parents, guardian, custodian and/or authorized repre-


sentative;

~
d. ensure against undue and sensationalized publicity, especially where the
charge involves a crime against chastity (please refer to Appendix "H"
on Guidefor Media Practitioners on the Reportage ofChildren s Cases
on p. 316 ofthis Manual);
I I
I• 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
I offender is the child's parents, guardian, custodian, or one who has of-

I
ficial, moral, sociai 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 child's parents, guardian or custodian,

I· and reflect the same in the record of the case/proceedings; and

I
;
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 latter's parent/s, guardian, custodian or au-

I
I
thorized representative. In case of conflict, the child's wish or decision
shall prevail.
I
I
2. If the Child is the Suspect
I The inquest prosecutor shall determine the age of the child on the basis
of:
I a. documentary proof such as, but not limited to, birth certificates, baptismal

I certificates, school record, dental chan, etc;

b. testimony of parent/guardian if not controverted; or,

I c. physical appearance of the child.

I If the child is fifteen (15) years of age or under, the complaint shall be
dismissed immediately.

I
J 172 Revised Manual for Prosecutors

J
~::,
Ifct
"~
''':.-

I
::~-~·~'
;,,~,
If the child is over fifteen (15) 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 ifhe finds that the chiid

ti. did not act With discernment, he shall:

1. immediately prepare a written report of his findings, recommending


I, "
I""
-~-

therein the dismissal of the case and the immediate release of the child
from custody;

1:.,- 2. submit the same to the Provincial/City Prosecutor or the Chief of the
I:~::'-: Inquest Division, as the case may be, for aopropriate action; and,
r'·:'
[ -.
I
~:,:;..- ,
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;

I Ifthe inquest prosecutor finds that the child acted with discernment,
he shall proceed in accordance with the rules and procedure established

I by RA 9344, otherwise known as "the Juvenile Justice and Welfare Act


of2006".

I 3. Guidelines in the Conduct of All Inquest Proceedings Involving a Child:

The inquest prosecutor shall:

I- a. as far as practicable, conductthe proceedings in the Office ofthe Provincial!


,..-.}:'
City Prosecutor during regular office hours;

b. see to it that the child is accompanied and assisted by the parents, guard-
I:
,<y~
ian, custodian and/or authorized representative;

c. ensure that the child is provided with competent legal assistance;


1'- d. make sure that the child is not co-mingled with adult detainees in one and
the same detention cell;

I e. take care that the child is not subjected to any form ofcoercion, harassment
or undue influence from any party wielding parental, custodial, official,
I moral, social or financial ascendancy over the child;

f. in no case employ any form of deceit or false promises during the investi-
I gation process; and,

it> g. ensure the case/proceedings against undue and sensationalized publicity.

Revised Man ual for Prosecutors 173


-
I The inquest prosecutor shall reflect in the record of the case/proceedings the
r
I name, identity and address, age and date of birth, of the child as well as the name
and address of the parentis, guardian, custodian and/or authorized representa-
i
tive.

I B. PRELlMINARY INVESTIGATIONS

I The prosecutor shall conduct a preliminary investigation only in the follow-


ing instances:

I I • When the child does not qualify for diversion;

• When the child, the parent or guardian does not agree to diversion;
I • When diversion is not appropriate for the child, after considering the .assess-

I •
ment and recommendation of the social worker; and

When the child fails to comply with the terms and conditions of the contract

I of diversion. (Sec. 26, chapter 2, RA 9344)

Upon serving the subpoena and the affidavit of complaint, the prosecutor
I shall notify the Public Attorneys Office (PAO) of such service as well as personal
information and place of detention of the child (Sec. 33, chapter 3. RA 9344).

I 1. If the child is the victim

The presence of the child during the preliminary investigation shall


I not be required. Where it is considered necessary that the child be sum-
moned for clarifi.catory questioning, the investigating prosecutor shall:

I a. conduct the examination of the child in the presence and with the
assistance of his/her parentis, guardian, custodian and/or authorized

I representative or social worker:

b. ensure the case and/or the proceedings against sensationalism and


I undue publicity, especially where the charge involves the commis-
sion of a crime against chastity;

I 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 of-
fender is the parentis guardian, or custodian, or one who has official,
I I moral, social or financial ascendancy over the child; and,

I d. make sure that the name, address, age and date of birth of the child,
as well as the name and address of the parentis, guardian or custo-
dian are dilly reflected in the record of the case.

- 174 Revised Manual for Prosecutors


1---

2. If the child is the respondent

In the course of the preliminary investigation, all summons, subpoe-


nas and notices shall be served on or sent to the child through the parent/s,
guardian, custodian, or authorized representative.

The presence/attendance ofthe child during the preliminary investiga-


tion 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 pub-


licity.

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 custo-
dian 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 INQUESTIPRELIMINARY 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.

Revised Man ual for Prosecutors 175


- - - - --

I
VI. PROCEDURE INVOLVING VICTIMS OF TRAFFICKING IN PERSONS
I AND VIOLENCE AGAINST WOMEN Al'!D THEIR CHILDREN

The procedures for conducting the inquest proceedings and preliminary inves-
I tigations prescribed in this Manual shall be applied in cases involving trafficking
in persons and violence against women and their children. In addition, the follow-
ing performance standards for prosecution services developed by the DOJ and the
I NCRFW shall be observed:

I A. PRELIMINARY INVESTIGATION

The prosecutor shall make sure that the complainant is informed of the

I rights under RA 9208 and RA 9262, the legal procedures on preliminary in-
vestigation, the crimes charged and the benefits under the witness protection
program for trafficking cases and victims' compensation program.
I
GUIDELJNES:
I 1. The complainant is informed that she can request for a female pros-
ecutor or a prosecutor she is comfortable with and if so requested, the
I complainant is provided with one.

I 2. The complainant is interviewed in a gender-sensitive manner and the


terms to be used should be gender-neutral.

I 3. Examination of the victim is conducted in a gender-sensitive manner.


Prosecutors should have the following attitudes:
• accepting and non-judgmental
I • sincere
• patient and understanding
• empathic
I • committed to observing and
safeguarding confidentiality

I 4. The prosecutor should be open and encouraging in asking questions.

I 5. The interview shall be done behind closed doors in a private environ-


ment where confidentiality is assured and the complainant's level of
comfort is considered.

I 6. The prosecutor shall refer the complainant for medical and neuro-
psychological examination for possible health problems (e.g. malnu-
I trition, STD, signs of rape, bruising, broken bones, critical illness,

, 176
post-traumatic stress disorders).

Revised Manual for Prosecutors

J-
7. All case-related documentation are properly obtained, reviewed and
keptconiidential.

-t;
li~;,
8. The facilities used during the interview should be safe to ensure con-
fidentiality:

a. A specific room is assigned for interviewing complainants and


witnesses.

i~
~~,_0r::
b.

c.
The interview rooms are secured, i.e. locked to ensure privacy.

The room contains gender-neutral furnishings, comfortable

I"X'
"~:· chairs, a table, and documentation equipment such as a com-
,~(~'
puter, a recorder or a typewriter.
"-,,-

~I'
'::{'-
9, The prosecutor shall not allow the media to gain access to any infor-
mation regarding the victim/ survivor. (An adult victim, however,

I
~~ ~~~·~ : ~ 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
I ~.I>' -
might compromise their privacy.

I: 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.
I, 11. The prosecutor should be capable of determining whether or not the
complainant needs other support services for the investigation or liti-

I gation of the case.

12. A trained counselor/social worker should be present during the inter-


views, if available, to support the victim/survivor.

"
I
13. The preliminary investigation should be terminated and resolved in
the earliest possible time.

14. The complainant should be notified of the results ofthe case.


I B. EVIDENCE GATHEREDIBUILT-UP BY THE LAW ENFORCER; NEED

I TO CHECK

The prosecutor, as far as practicable, should check the conduct of the sur-

I veillance needed to support the filing of a case (police/Nlsl agencies/investiga-

, tors conduct the necessary surveillance for sex trafficking cases. e.g. in massage
parlors, bar strips, modeling studios, escort services).

Revised Manual for Prosecutors 177

l.~
~ ·· ,~,· : ·
.>'.•

-'~t--:
..
C. PROSECUTION GUIDELINES:

}. The "Speedy Trial Act" should be strictly observed.

2. The Rules on Examination of Child Witnesses should be applied in han-


dling 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 coun-


selor/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 ofjurisdiction or with


grave abuse of discretion amounting to lack or excess ofjurisdiction.

2. There is no appeal or any plain speedy or adequate remedy in the ordinary


course oflaw.

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 PETffiON

The petition shall be filed with the Supreme Court or the Court ofAppeals 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.

178 Revised Manual for Prosecutors


D. ACTION TO BE TAKEN BY THE TRIAL PROSECUTOR

;'-' '' I. Draft a petition clearly stating the facts of the case, and the law and juris-

1'~~~:.-,,-

I"
{iii}::':

~,
prudence applicable in support thereof. 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.
I_.t":.'
'~
..,~,,>-h

Legible duplicate original or certified true copy of the decision, judgment


I~~~ or resolution or order subject of the petition for certiorari must be attached to
the draft.

'-'
I ,,'. "

1 .;'~i<
c·· ...." -
The certified true copy must be accompanied by a certification accom-
plished by the proper clerk of court or by his duly authorized representative

1:/ 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
I -,\:-'
)"-:-
---,',.' .
.other person shall not be allowed.

NOTE: Photocopies, not originally certified, of the alleged certified true


I copies of the decision of the trial court are not sufficient compli-
ance.

I "
,
: ::.'t(

,''','' 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 ofAppeals, or any
I other tribunal or agency.

As far as practicable, a copy ofthe transcript of stenographic notes (TSN),


" case record, trial brief outlining proceedings of case, documentary evidence
''''
certified copies of decision to be elevated.
'7."
, ',-'"., 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
I ,.'"
order/judgment, with a request that the same be endorsed to the Office of the
Solicitor General.

I E. ACTION OFTHE CHIEF STATE PROSECUTOR

1. If the Chief State Prosecutor finds no merit in the request to file a petition for
I certiorari, he denies the request and informs the head of office of the request-
ing trial prosecutor of such denial.
I:
I,,,,; Revised Manual for Prosecutors 179

I
"
'~ ::'~'-:,
. (fj;-
~_:;;,

-~: ..
I
2. If he finds merit in the petition, he shall endorse the draft petition together
I with the attachments within ten (10) days from receipt of the draft petition, to
the Office of the Solicitor General for appropriate action.

I VIII.HANDLING OF ENVIRONMENTAL CASES

I A. REVISED FORESTRY CODE (pD 705)

1. EVIDENCE REQUIRED
I 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 fol-
I lowing pieces of evidence are crucial:

• Affidavit of the apprehending officer;


I • Proof that the accused failed to show cutting license or permit when

I apprehended and asked to present the authority to cut;

I I • 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);
I I • The logs, timber, flitches or lumber that were apprehended;

I • Conveyance, equipment, machineries, implements or tools, if any;

• Identity and affidavit of apprehended violators.


I b. For violation of Sec. 78 (Unlawful occupation or destruction offorest

I lands and grazing lands):

• Proof of failure to present license agreement, lease, license or permit

I to enter and occupy forest land or grazing lands when accosted;

• Affidavit of the investigating forest officer;


I • Survey maps of area occupied and destroyed using Land Classification
map or reference to prove that the area is inside forest land or grazing
I land;

• Inventory and tally sheet, stand and stock table of timber or forest
I products destroyed and the corresponding forest charges to be used as
basis in imposing penalty;

J
180 Revised Manual for Prosecutors

J
• Damaged forest land due to indiscriminate setting on fire of forest
land' by the violator;

• Damaged grazing land due to indiscriminate cutting of trees and other


vegetation by the violator;

• Damaged forest land due to indiscriminate setting on fire of grazing


land by the violator;

The following documents are likewise useful:


?i&~~::';'. -
• 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;
- "' '~;':'-'
k
_
,:g~~?-~ : • Possession by the violator at the time of the apprehension of instru-

I
ments, equipment and tools such as power saws, hand saws, bolos and
digging tools such as shovels, grub hoes, rakes, etc.;

• Fallen trees, logs, lumber, flitches and other woody parts of damaged

1
"'~1:';~ vegetation; and
~,{:";'-
7/::-::
-'i~;'\;~~-:

It • Construction of shelter of light materials within the area or site of


occupation or kaingin,

I;
:I~F "f e- ,: .
c. For violation of Sec. 80 (Pasturing livestock), the following are required:

• Investigation report of the forest officer showing failure ofthe accused


to present authority to graze livestock;
. ~:.:~:,{
• Survey map of the area utilized for unauthorized grazing;

• Inventory of livestock grazed.

d. For violation of Sec. 82 (Survey by unauthorizedpersons), the following


are important:

'-
1 Z':'::: .
~-;- --
• Implements and instruments used in the survey of the area involved;

"lifi5,'~'. • Survey report and sketch plan of the surveyed area by the investigat-
ing officer;
.~?'~-

ReVised Manual for Prosecutors 181


I
• Land Classification Map showing that the area is classified as

I forest land

e. For violation ofSec. 88 (Sale 01WoodProducts), the following are impor-


I tant:

• The logs, lumber or forest products subject of the sale;


I •

Scale Report;
Sales Invoice

I 2. POINTERS

I It is suggested that the confiscated forest/wood products under court litiga-


tion 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

I the confiscated forest/wood products be sold as soon as their presentation as


evidence is completed. The proceeds thereofwill be depositedlheld in escrow
for collection by the prevailing party.
I The prosecutor should, before the confiscated forest/wood products are
sold, cause the photographing of the same. Photographs should be certified
I at the back thereof by the DENR officer and appended to the record of the
case.

,I For repeat violators ofSec. 77 (Cutting, gathering and/or collecting timber


or other forest products without license), such fact should be alleged as an ag-

I gravating 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

I ruling of the Supreme Court in PP vs. Martin S. Simon (OR No. 93028, July
29, 1994; 234 SCRA 555), such circumstance of recidivism or reiteracion
should be alleged.
I The prosecutor should also consider the outcome of the administrative
adjudication proceedings for violation of Sec. 77 in determining probable
I cause. The prosecutor may request for additional evidence obtained during
administrative adjudication proceedings.

I
I
I
, 182 Revised Manuai for Prosecutors

J
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. PEOPLE'S SMALL SCALE MINING ACT (RA 7076)

1. EVIDENCE REQUIRED

• Technical or office generated reports, testimonial evidence of the con-


cerned 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 officer (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 of-
fense; and
• Other supporting papers/evidences as the court may require.

Revised Manual for Prosecutors 183


I
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, particuiarly
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. II 0 (Other
Violations) instead of Sec. 103 (Theft ofMinerals) 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 responden! 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 regu-
larity.

1. Sees, 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: Sees. 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 Secs. 172 and 179, refer to the penal provisions of the Mining
Act.

E. CLEAN AIR 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.

184 Revised Manual for Prosecutors


F. ECOLOGICAL SOLID WASTE MANAGEMENT ACT (RA 9003)

1. POINTER'

F
;,;:~ ·
:}:~'- The applicable procedures in criminal prosecution for violation of RA

j~"
9003 is Rule XIX (Administrative and Enforcement Procedures) ofDAO No.
2001-34 (IRR ofRA 9003).

1"<~­
G. WILDLIFE CONSERVATION AND PROTECTION ACT (RA9147)

1. EVIDENCE REQUIRED
-:-"F;~:'

I,·
--_.~(-
a. Useful pieces of evidence in the prosecution of violators of Sec. 27, par-
ticularly the killing of wildlife:

I
·~~-
'--~
• Certificate from the DENR or Protected Areas and Wildlife Bureau
(PAWB) that the animal is a wildlife; and

I- • Necropsy report from a veterinarian.

b. On inflicting injury:

I- • Certification from the DENR or PAWB that the animal is a wildlife;


.,'.C""
and

I • Certification from a licensed veterinarian that the concerned wildlife,


after the infliction of the injury, is no longer capable to utilize its re-
productive system.
i I c. Dumping of waste products detrimental to wildlife:

I • Certification from a licensed veterinarian that the dumped waste prod-


ucts are detrimental to the life of the wildlife found or living in the
area; and
I • Certification from the DENR that the place where the wastes were
dumped is a critical habitat in accordance with the NIPAS Act, or
I: designated as such in accordance with Sec. 25 ofRA9147.

d. Trading of wildlife:

I • Certification from the DENR as to the classification of the concerned


wildlife; and
I • Certification from the DENR that no permit was given to violator for
the concerned activity.

I
_
--
:'-.>!;
e. Transporting of wildlife:

_
1
-

c'::,' Revised Manual for Prosecutors 185

1 a-.

", t/"'

?;.-
----

I
• Certification from the DENR as to the classification of the concerned
I •
wildlife; and
Certification from the DENR that no corresponding permit was given
to the violator for the concerned activity.
I f. Maltreating and/or inflicting other injuries not covered by the preceding
paragraph:
I • Certification from the DENR as to the classification of the concerned

I •
wildlife; and
Affidavit of a witness who saw the act of maltreatment or in:llicting
injury to the wildlife.

I ". Squatting or otherwise occupying any portion or the critical habitat:


(J

I • Certification from the DENR or PAWB that the place where the con-
cerned 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.
I 23 ofRA 9147.

h. Mineral exploration and/or extraction, burning, logging, and quarrying:


I • Certification from the DENR or PAWB that the place where the con-

I cerned 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 ofRA 9147.

I 1. Introduction, re-introduction, or re-stocking of wildlife resources:

I • Certification from the DENR that no permit was given to the violator
for the concerned activity.

I J. Collecting, hunting, or possessing wildlife, their by-products and deriva-


tives:

I • Certification from the DENR as to the classification of the concerned


wildlife; and

I Certification from DENR that no permit was given to the violator for
the concerned activity.

I k. Gathering or destroying of active nests, nest trees, host plants, and the
like:

I • Certification from DENR as to the classification of the concerned


wildlife; and -

I
;
186 Revised Manual for Prosecutors

I
;
• Certification from the DENR that no permit was given to the violator
for the concerned activity.

H. CHAlNSAWACT (RA9175)

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 ofunlawful importation or manufacturing ofchain


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.

1. CLEAN WATER ACT (RA9275)

1. EVIDENCE REQUIRED

a. Results of laboratory analysis of samples coilected (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 com-
plained of;

Revised Manual for Prosecutors 187


~------------------------

I
-

.
·W

• Proof of service of Notices of Violation (NOVs) andlor Invitations


I '.
for Technical Conference; and
Photographs and other documents that would establish the accuracy
and veracity of the statements made in the report
I 2. POINTERS

I 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

I b. Results of sampling (Laboratory Analyses) must be signed by chem-


ists from the DENR-EMB or DENR-accredited laboratories.

I c. There must also be a report on the inspection and monitoring of prem-


ises prepared by the proper authorities (EMB-Regional Office, signed
I by the Regional Director).

d. RA 9275 lacks provisions on the issuance of seizure receipts, par-


I ticularly 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 facil-
I ity for the said wastes and other pollutants while in custodial legis.

IX. PROSECUTION OF MONEY LAUNDERING CASES


I
A. GENERAL RULES
I 1. Any proceeding relaring to money laundering and the unlawful activity shall
be given precedence over the prosecution of an offense or violation under the
I Anti-Money Laundering Act (AL\1LA) (RA 9160, as amended by RA 9194)
without prejudice to the application ex-parte by the Anti-Money Laundering
Council (AMLC) to the Court ofAppeals for a freeze order with respect to the
I monetary instrument or property involved therein and resort to other remedies
provided under the AMLA, the Rules of Court and other pertinent laws and
Rules.
I 2. Trial for the money laundering offense shall proceed in accordance with the

I Revised Rules on Criminal Procedure.

3. Knowledge of the offender that any monetary instrument or property repre-


I sents, 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.
I
J 188 Revised Manual for Prosecutors

J
B. DUTIES OF THE PROSECUTOR

1. Upon receipt of the complaint filed by the Avll.C 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

IR~:::~
· · ' ·~ that a money laundering offense has been committed, recommend for the fil-
ing of an Information before the Regional Trial Coun;
?~"--

f~t 3. Once the filing of an Information in court has been approved by the head of
Ijt:.~ L

!~:,:;:.-.
office, prepare for the trial for the money laundering offense in close coordi-
nation with the AMLC official who file the complaint.

11- ?~-
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,

It including the element of knowledge that the monetary instrument or prop-


erty represents, involves or relates to the proceeds of any unlawful activity.
';'·
"-X-"::;
(Rule 6.6. ofthe Revised Implementing Rules and Regulations ofRA 9160 as
I
;:)'i":;"
7':-~ amended by RA 9194).

No element of the unlawful activity, however, including the identity of the


I" -~::: ..
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
I ::
~:-::<
of the felony or offense constituting the unlawful activity. (Rule 6.7, ibid).
" ,c.
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Revised Manual for Prosecutors 189

',~

' ..
- - - - - - - - -

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J 190 Revised Manual for Prosecutors

J
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--~

Special Section on
II Prosecuting Human Rights Violations

II and Providing Available Remedies Therefor

I
I
II
II
II
I
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I,
¥f Revised Manual for Prosecutors 191

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I
Special Section on
I Prosecuting Human Rights Violations
and Providing.Available Remedies Therefor
I
1. IN GENERAL
I A. STRUCTURE

I This special section on human rights will start by presenting a summative


checklist to guide a public prosecutor in dealing with cases ofhuman rights viola-
tions - what the requisites are for their successful prosecution and the alternative
I or cumulative legal remedies that can be availed of.

I 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.

I 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

I redress to human rights violations. However, since these provisions are few and
perform only a largely compensatory function, we have to tum to the larger field
of substantive and procedural criminal law to be able to fully address the conse-
I quences of the violation and provide the victim with the full coterie of remedies
designed to vindicate the rights violated.

I B. SUMMATIVE CHECKLIST

1. STEP ONE. How do you know that a human rights violation has been com-
I mitted?

I a. LOOK AT THE LEGAL BASES. The enumeration ofcivil and po-


litical rights and liberties can be found in the Constitution's Bill of Rights
and the Civil Code's Article 32.

I • 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
I the exercise of governmental powers and prerogatives.

• For private parties violating human rights, Article 32 will be more


I appropriate.

I 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

, 192 Revised Manuai for Prosecutors


human person; as such, anyone can also readily recognize when a viola-
tion thereofhas been committed. Some of the defining character ofhuman
rights violations are:

• They involve a wanton violation ofthe integrity ofthe human person :s-
body.

For example, physical injuries inflicted on a person are undoubtedly


on a lower plane compared to acts oftorture 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
I~o 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

i~~ totally subdue the will of another.

• They involve an infliction ofintense psychological anguish, emotional


suffering, and moral helplessness.
I1E
),z;·;'..~ For example, families of victims of enforced disappearance had to

It
--:~~r"~:;_-
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
I;{: what would otherwise be a plain case ofdeprivation oflife and liberty.
Deliberately withholding information regarding the whereabouts of
a person invoiuntarily disappeared makes the loss of a loved one as-
I~, sume an entirely different dimension.
.
',:,
~;

• They deviate from universally-accepted minimum standards oftreat-


I ,-;-
>:"'- ment ofevery human person.

I:
.~'"

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
·"""c.::

relatives of the dead should have the opportunity to bury their dead
I with dignity. When a wrongful act deprives a human person of what is

I':· due him! her according to the minimum standards inherently ingrained
in everyone's sense of humanity, then there is an assault against fun-
.. :,' damental human rights.

I
I···
,
1 ~1.'
Revised Manual for Prosecutors 193

, .<."

~<
,l
I
2. STEP TWO. How do you prove that there has been a human rights viola-
tion?

• 'Medico-legal reports (for physical trauma)


• Autopsy reports (for causes of death and internal! external injuries

*I
l
sustained immediately prior to, or contemporaneous with, the point of
death)
• Psychiatric and psychological evaluations (for mental, emotional, and
i psychological trauma on the part of the victim and his! her relatives)
• Affidavits of witnesses (focusing on the circumstances that would qualify
I an act as a human rights violation, as discussed above)

I, 3. STEP THREE. What do you do about it? Determine whether -

a. THE HUMAJ'f RIGHTS VIOLATION IS CONTINUALLY BEING

I PERPETRATED. For example:

• in the case of a person involuntarily disappeared and whose fate and


I •
whereabouts are still unknown; or
in the case of a person whose life or liberty is under threat by reason
of his! her political beliefs; or
I • in the case of a person currently under the custody of State authorities
under circumstances that would warrant a well-engendered fear ofhis!
her being subjected to torture or other forms of suffering
I
, In these cases, the urgent need is to gather information regarding the

I condition or whereabouts of the person, so that the appropriate remedy can


be availed of:

I • 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
I •
addressed through this means.
utilize inquest proceedings so that violations of human rights can
already be disclosed early on.
I • 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 posi-
I tive duty to "proceed with caution" during trial whenever allegations
of violations of the fundamental rights of the accused are brought to

I •
their attention.
gather information through the usual channels of inquiry, taking into
account whether or not information being sought is:
i

i
'I
I~
,
~.
194 Revised Manual for Prosecutors
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
one's life or liberty has been clearly determined, then an aggrieved
parry can:

• Comp-el 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
• . the State to extend such .protection as mav be adequate to
Comnel ~

safeguard his! her rights through a Writ ofAmparo

b. THE HUMAt'l 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 subse-
quently 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 spe-
cifically tackle and address human rights violations, they are nonethe-
less 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 result-
ing damages arising from the violation. These are:

Revised Manual for Prosecutors 195


I
1. Action for damages under Article 32 of the Civil Code
I 2. Claims under the Victim Compensation Act
3. In cases a/torture or death ofa suspected terrorist, an action for
criminal liability of a State official having custody over the sus-
I pected terrorist under Sec. 25 of the Human Security Act

I • REMEDIES THAT INDIRECUY RECOGNIZE HUMAN RIGHTS


VIOLATIONS. These are ordinary criminal actions involving felonies
that may be considered the closest equivalents of the human rights

I violations discussed in this Manual. These human rights violations


- torture, enforced disappearances, extralegal killings, and involun-
tary displacement - are yet to be legislated as felonies or crimes in

I 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
I are obtaining.

I For example:

I 1. The component felonies that may be equated to torture like mal-


treatment of prisoners, serious physical injuries, administration
of injurious substance, mutilation, etc.

I ~ Equivalent felonies to enforced disappearance like arbitrary


detention and kidnapping
..J. Felonies parallel to involuntary displacement like grave coercion

I and expulsion

4. STEP FOUR. Is there a way forward?


I a. MAKE HUIvlAN RIGHTS VIOLATIONS AK1N TO AGGRAVATING
CIRCUMSTAt'JCES. The perpetration of felonies in a manner that quali-
I fies 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 in-
I dividuals. However, penal laws do not operate in that manner. Laws must
be enacted to punish particular crimes, impose heavier penalties, or add

I 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 pros-

I ecutors and where human rights violations are recognized at the outset,
acknowledged accordingly in the Information, and equated when possible
to existing aggravating circumstances.
I
, 196 Revised Manuai for Prosecutors
For example:

• Nocturnal abductions (during which impunity is more or less see


:~:].;~. cure) preparatory to enforced disappearances can be considered
.~.", aggravated by "nocturnity".
~: • Involuntary displacements undertaken during the height of armed

I
"~~: conflict or hostilities can be considered aggravated when "commit-
:fl'",
~~ . ";:., ted on the occasion of a calamity or misfortune".

I,-,
;~M • "Liquidations" and other "salvagings" on account of political perse-
cution, which often lead to extralegal killings, should be considered
.:.:~i-:-_' clearly as products of "evident premeditation" because the plan
-~."d&~:."- and mode of such attacks are almost always contemplated ahead of

1 _t~_'::
f,,'
""~'--": •
time.
If torture is conducted with the victim's hands and feet tied (or
'·,:~: where the victim is physically restrained in any manner), or where

I ~t
":i~~
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 "salvagings" conducted in a swift manner,
under circumstances where the victim will be caught unaware and
unable to defend him! herself, is evidentiary of "alevosia".
,f~J_~_)_ • Murder involving physical and psychological torture (e.g., forcing

I : ,~ the victim to ingest human excreta, torturing the victim while naked,
-.~-~, .. electrocution of the genitalia) can rightfully be classified as aggra-

'-"
'."::.o.
vated by "ignominy" and! or "cruelty".

J - ,ie,
.~.' -
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

I;;:· ,.::'
':",-"
Penal Code. However, while such proposition still awalts legislative adop-
tion, 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

I: -?:. felony and the gravity of the imposable penalty.

1\ 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
1 t that usually seen in such processes. It is a vindication ofhuman rights vio-
lations where they are acknowledged and recognized in the Information,

I 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.

1-

"I
'"
'-',' ~
"":
Revised Manual for Prosecutors 197
--------- - -

I
, Consider the following:

I "That onor about the 8th day ofApril, 2008, in the Municipality
of Donsol, Sorsogon, Philippines, and within the jurisdic-

I tion of this Honorable Court, the said defendants, JOSEFO


:MERCADO and DETh10S PERICLES, and CRISPULO
mAN DE DIOS, conspiring, confederating and mutually
I 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
I head, electrocution of the genitals, tearing off of the finger-
nails, and drowning, with treachery, known premeditation,
abuse of superior strength, and means employed to weaken
I the defense, and as a result thereof, said VICENTE TONGOL
slowly suffered intense physical and psychological trauma

I until his death.

"CONTRARY TO LAW.
iI "Donsol, Sorsogon, Philippines, April 8, 2008."

,I 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

II 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 treat-
ment. In those cases where the judge is given enough latitude to pronounce

II 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.

I II. PROSECUTING CASES OF TORTURE

I A. BACKGROUND

,I Definition

Torture is defined in Black's Law Dictionary as the "infliction of intense pain


iI to body or mind for purposes ofpunishment, or to extract a confession or informa-
tion, or for sadistic pleasure." Torture, when committed, represents a direct and
blatant violation of a person's human right not to be subjected to cruel, inhuman,
I 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.

I III, Sec. 12, pars. 2. 3 and 4; Art. III, Sec. 19, pars. 1 and 2).

-, 198 Revised Manual for Prosecutors


B. DEALING WITH TORTURE UNDER SUBSTANTIVE LAW

1. Unconstitutionality

The first thing that a prosecutor must bear in mind is that torture is un-
constitutional. Article ill, 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 ill, Sec. 19, of the 1987 Constitution provides that "the
employment ofphysical, 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 compel-


ling signiiicance 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 pre-
scribed 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 ofthe felony.

s. Offender is a public officer or employee


2. He has under his charge a prisoner or detention prisoner

Revised Manual for Prosecutors 199


-I 3. He maltreats such prisoner in either of the following manners:

• By overdoing himself in the correction of a prisoner or detention

I •
prisoner under his charge, or

By overdoing himself in the handling of a prisoner or detention

I
i
prisoner under his charge, through:

o the imposition of punishment not authorized by the regula-

I tions;

o the infliction of punishments authorized by the regulations in a

I
I
cruel and humiliating manner;

o the maltreatment of such prisoners to extort a confession or to

I obtain some information from the prisoner.

3. Separate and simultaneous criminal actions.


I If the victim of torture is not a prisoner or where the alleged perpetra-
tors are unidentified (in which case their status as public officials cannot be
I 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,
I torture oftentimes involves the infliction of physical and psychological suf-
fering on the victim through various acts designed to break the victim's will
and spirit so that hel she would accede to the demands of the torturers. As
I such, torture can be prosecuted by filing any or all of the following actions,
provided the following requisite elements have concurred:

I a Mutilation (Art. 262, Revised Penal Code)

I 1. Intentionally mutilating another by depriving him, either totally or


partially, of some essential organ for reproduction; i.e.,:

I • 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 de-
I prive the offended party ofsome essential organ for reproduction;
or

I 2. Intentionally making other mutilation, that is, by lopping or clipping


off any part of the body ofthe offended party, other than the essential

I organ for reproduction, to deprive him of that part of his body.

J
, 200 Revised Manual for Prosecutors
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 admin-


istering 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 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 ill or incapacitated for the
performance of the work in which he was habirual1y 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 ofthe physical
injuries inflicted.

2. Less Serious Physical Injuries.

• Committed by wounding; by beating; by assaulting; or by admin-


istering 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 admin-


istering 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;

Revised Manual for Prosecutors 201


o ill-treatment of another by deed without causing any injury.

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 sub-
stance 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 circum-
stances:

o By using force or intimidation;


o When the woman is deprived of reason or otherwise uncon-
scious;
o By means of fraudulent machination or grave abuse of author-
ity; 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 person's 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 follow-


ing circumstances:

o By using force or intimidation; or


o When the victim is deprived of reason or otherwise uncon-
scious; or

202 Revised Manual for Prosecutors


o By means of fraudulent machination or grave abuse of author-
ity; or
o When the victim is under 12 years of age or demented.

e. Acts ofLasciviousness (Art. 336. Revised Penal Code)

1. That the offender commits any act of lasciviousness or lewdness.


2. That the act oflasciviousness 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 un-
COnsClOUS;
• By means of fraudulent machination or grave abuse of authority;
or
• 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 circum-
stances 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;

Revised Manual for Prosecutors ~03


I I
• He kidnaps or detains another, or in any other manner deprives

I •
him of his liberty;
The act of kidnapping or detention is illegal;
• The crime is committed without the attendance of any of the
I circumstances enumerated under Kidnapping and Serious illegal
Detention.

I g. Grave Threats (Art. 282. Revised Penal Code)

1. 1breatening another with the infliction upon his person, honor or


I property, or that of his family, of any wrong amounting to a crime and
demanding money or imposing any other condition, even though not

I 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

I property, or that ofhis family, of any wrong amounting to a crime, the


threat not being subject to a condition.

I h. Grave Coercion (Art. 286, Revised Penal Code)

1. A person prevented another from doing something not prohibited by


I 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 in-
I timidation; and
3. The person that restrained the wiil and liberty of another had not the

I authority of law or the right to do so, or in other words, that the re-
straint shall not be made under authority of law or in the exercise of
any lawful right.

I i. Attempted or Frustrated Murder or Homicide (Art. 250. Revised Penal


Code)
I 1. If torture was committed through acts that clearly evince the perpetra-
tor's intent to ultimately kill the victim (albeit in a protracted manner
I 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:
I • An attempt to kill a person;

'I • Offender attempted to kill him without any justifying circum-


stances;
• Offender had the intention to kill;
I • The killing was not attended by any ofthe qualifying circumstances

, 204
ofmurder, or by that of parricide or infanticide.

Revised Manual for Prosecutors

J
.,,' j. Murder (Art. 248, Revised Penal Code) or Homicide (Art. 249, Revised
d '" Penal Code)

I 'N-

_~i:?" 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

I
;~~ heirs of the deceased assisted by the Prosecutors or Public Attorneys,
:',ict alleging the following elements:

f1-·:;- *:.::'.-.
::;;:;



A person was killed;
Accused killed him;
The killing was attended by any of the following qualifying cir-
cumstances:


't -,

;:';: o With treachery, taking advantage of superior strength, with the


~~--o
..;;. aid or armed men, or employing means to waken the defense, or
",..i
_£:~\f-':' of means or persons to insure or afford impunity;

I~
o In consideration of a price, reward or promise;
o By means of inundation, fire, poison, explosion, shipwreck,
-"'':,'',;.
":,':'."-
srranding of a vessel, derailment or assault upon a railroad, fall
0 ,, - of an airship, by means ofmotorvehicies, or with the use of any
1 ::,'::-,'
":A-,-
-c.•
'!'.;.
o
other means involving great waste and ruin;
On occasion ofany ofthe calamities enumerated in the preceding
"C paragraph, or of an earthquake, eruption of a volcano, destruc-
I -"-.
-.;"

o
tive cyclone, epidemic, or any other public calamity;
With evident premeditation;

I ,.-~ .
o With cruelty, by deliberately and inhumanly augmenting the
suffering of the victim, or outraging or scoffing at his person or
corpse.

I • The killing is not parricide or infanticide.

1'
, ."
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
f 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
I 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

I without pursuing administrative and criminal cases in relation to the perpetration


of torture on the accused).

I
,I ~\\r:.
-,..... Revised Manual for Prosecutors 205

I.
'~

I
I 4. Prosecution under the Human Security Act (RA 9372)

I Under the Human Security Act, the following acts shall not be employed dur-
ing the investigation/ interrogation of a person detained for the crime ofterrorism
I or conspiracy to commit terrorism:

• Threat
I •

Intimidation
Coercion
• Acts which wI71 inflict any form ofphysical pain or torment, or mental,
I moral, or psychological pressure, or which shall vitiate the detained
person's free-will

I 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

I from such inflicted physical pain or torment, or mental, moral, or psychological


pressure, shall be, in its entirety, absolutely not admissible and usable as evidence
in any judicial, quasi-judicial, legislative, or administrative investigation, inquiry,
I I proceeding, or hearing.

I I 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:

I I a. Any person or persons who use threat, intimidation, or coercion, or who


inflict physical pain or torment, or mental, moral, or psychological pres-
sure, which shall vitiate the free-will of a charged or suspected person
under investigation and interrogation for the crime of terrorism or the
I 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

I imprisonment.

b. When death or serious permanent disability ofsaid detained person occurs

I 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
I psychological pressure, the penalty shall be twelve years and one day to
twenty years of imprisonment.

I 5. Resort to the generic remedies for human rights violations

Since the act of torture, as discussed above, may take the form or include
I punishable acts like illegal or arbitrary detention; unjust imprisonment or deten-
tion; or the infliction of various physical, emotional, or psychological injuries,

I then torture as a consequence can be made a ground for a claim under the Victim
Compensation Act (RA 7309), as well as an independent action for damages

J 206 Revised Manual for Prosecutors

J
under Article 32 of the Civil Code, 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 con-
fidence 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 -eIiminated with certainty, Oftentimes, the case of the prosecu-
tion can rise and fall with the admission into evidence of the defendant's
admission or confession, It is therefore imperative that torture be ruled out in
such cases to avoid a miscarriage ofjustice,
,,~,,~~~~'

2. Detection 0/ torture at the inquest stage


Letter ofInstruction 621 (series of 1977) provides for a procedural mecha-
nism by which torture can be prevented very early in the prosecution process.
Sec. 6 (e) thereofpronounces that one ofthe functions ofthe 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


,

I :.: ....
,.."-:,-
'-,.-,-.,<
, i...,:
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 investiga-
tion (which commences immediately at the point of arrest) is not vitiated by
l ~'--:
.'7'-

;~~"
acts oftorture and other forms ofmaltreatment. The Prosecutor must ascertain
this by posing questions to the accused under such circumstances as to render
"r:·
"f/p
the query effective; it cannot be undertaken in a manner that would defeat the
I intention of the law (e.g, in the presence of arresting officers from which an
accused claiming torture can reasonably fear retaliation).

I 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
1- it, then the Prosecutor acting as inquest officer can immediately abort the

, prosecution process, or overrule the plea for continued detention, or make a

Revised Manual for Prosecutors 207

I~,-':
recommendation tinding lack of probable cause, on the ground that a confes-
sion extracted through torture or acts tantamount to it is inadmissible in evi-
dence. This is without prejudice to the institution ofproper actions to proceed
against the perpetrators of torture.

3. Treatment oftorture at the trial stage

a. Administrative Matter No. MlJ 90-4001 (JuZv 1{ 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 oftorture at the point oftrial is still primarily the responsi-


bility ofthe 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 judge's 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 admis-
sion or confession is introduced in evidence, the judge should personally
satisfy himselfthat 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 im-
posed 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.

The judge is enjoined to assume an active role in the detection of


torture, so much so that hel she is expected not only to address allegations

208 Revised Manual for Prosecutors


of torture, or ascertain the absence thereof whenever a confession or ad-
mission 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 unlikely to volunteer information of torture or maltreatment.

It is therefore the duty of the judge to examine the candor of the ac-
cused and look for tell-tale signs of torture even if no allegation of such
was made. In addition, the judge must not confine himlherselfwith mere
physical manifestations evidencing or indicating the possibility of tor-
ture.

3. People v. Chaw Yaw Shun G.R. L-19590, Apri125, 1968

In Chaw Yaw Shun, the Supreme Court acknowledged that the mere
absence of external injury in the confessor's body does not destroy or
rule out any claim of maltreatment bv the use of other scientific modes or
forms of torture. Vigilance, therefore, should be exercised by the judge in
ascertaining that torture was notcommitted, whether or not such commis-
sion resuited in physical injuries that are easily detected.

m. PROSECUTING CASES OF ENFORCED DISAPPEARANCE

A. BACKGROUND

On the occasion of the Supreme Court's promuigation 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 ac-
quiescence of the government;
2. the refusal of the State to disclose the fate or whereabouts of the person con-
cerned;
3. or a refusal to acknowledge the deprivation of liberty which places such per-
sons outside the protection of the law (Declaration on the Protection ofAll
Persons Against Enforced Disappearance. UN GAOR 47/133, 18 December
1992, Third Preambular Clause).

Revised Manual for Prosecutors 209


,*
i 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
M mechanisms of redress provided in law to deal with an extraordinary case like

I enforced disappearance?

B. REMEDIES AVAILABLE UNDER ORDINARY ACTIONS

'I
Ii
1. Availment ofgeneric remedies for human rights violations

I a. Cases of enforced disappearance represent a violation of a person's:

1. right to liberty and security,


I 2. right not to be subjected to enforced disappearance, a right recognized
by internationalbuman rights instruments, and

I b.
~. right not to be subjected to unlawful or arbitrary detention.

As such, the generic remedies for human rights violations as discussed


earlier in this manual can be availed of Victims of enforced disappear-
I ance can seek compensation against perpetrators by way of an action for
damages under Article 32 ofthe Civil Code and from the Board of Claims
,I of the Department of Justice under the Victim Compensation Act.

I 2. Criminal actions

,I a. Actions under the Revised Penal Code can be brought against persons
responsible for enforced disappearances. Depending on the satisfaction

I 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
I the enforced disappearance

1. Arbitrary Detention (Art. 124, Revised Penal Code)


I, a. Offender is a public officer or employee;
b. He detains a person;
I c. The detention is without legal grounds. For this purpose, "without
legal ground" means either:

I 1. No crime was committed by the detained; or


11. There is no violent insanity of the detained person; or

I iii. The person detained has no ailment which requires compulsory


confinement in a hospital.

210 Revised Manual for Prosecutors


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 circum-
stances 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
rv, The person kidnapped or detained is a minor, female, or a
public officer.

e. In addition, when the following qualifying circumstances are pres-


-ent when the felony is committed, the highest imposabie penalty
shall be imposed:

1. Purpose is to extort ransom;


11. When the victim is killed or dies as a consequence of the de-
tention;
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 person's 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 ofhisl her abductors (through
removal of identifying nameplatesl 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.

Revised Manual for Prosecutors 211


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 which lays down certain threshold information at the outset as a precondi-
tion to the availment thereof- issues ofterritorial 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 victim's family or loved ones can institute

I the necessary action and avail of the necessary remedy more effectively.

2. Right to information; extent thereof

i 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

I 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" (UN. GAOR 217 A (IIl), 10 December

I 1948, Art. 19).

I
The Constitution also provides: "The right ofthe 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,

I 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. lII, Sec. 7).

I 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 primar-
I ily predicated on the inherent entitlement of the people to be vanguards of
governance, to be cognizant ofmatters that their elected leaders are undertak-
ing. The democratic institutions ofthe country would be rendered infirm ifthe
I people cannot be given the power to hold their leaders accountable through
mechanisms of transparency put in place by the laws.

I 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

I official abuse. Pertinent to cases ofenforced 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 disap-
I peared. This can include access to offieial 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
I 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,

I and any limitation thereto can only be imposed by direct legal prescription.

"

212 Revised Manual for Prosecutors

J
3. Right to information; limitations thereto

The Implementing Rules and Regulations of the Code of Conduct and


Ethical Standards for Public Officials and Employees (RA 6713 and its 1RR)
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 pub-
lic access would result in detrimental consequences to national security, the
protection of the rights ofpersons, and foreign affairs. In the following cases,
access to information is restricted, as provided in Rule Iv, Sec. 3 of The
Implementing Rules ofRA 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;

b. 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, ex-
ecutive sessions of Congress, deliberations of the Supreme Court, trade,
secrets, and the like);

c. such information, record or document comprises drafts of decisions, or-


ders, rulings, policy decisions, memoranda, etc.;

d. it would disclose information of a personal nature where disclosure


would constitute a clearly unwarranted invasion of personal privacy (e.g.,
patient-physician privilege);

e. 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

Revised Manual for Prosecutors 213


---------~ _. - _.~ --~

I
I 5. it would disclose information the premature disclosure of which

I would:

I
!i
• in the case of a department, office or agency which regulates cur-
rencies, securities, commodities, or financial institutions, be likely
to lead to significant financial speculation in currencies, securities,
or commodities, or significantly endanger the stability of any
I financial institution; or

• in the case of any department, office or agency, be likely or sig-


I,. nificantly to frustrate implementation of a proposed official action,
except that subparagraph (f) (ii) shall not apply in any instance

I i
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
i I disclosure on its own initiative prior to taking final official action
on such proposal.

I -Notice that under letter (a) (i) in the quoted portion of the Implementing
Rules above, the invocation of national defense and security can be used to
defeat the right to information. Experience has it that this ground has been
I used to deny access to official police and military records that could have
been helpful in the location of disappeared persons.

I However, despite recourse to this ground provided by law, there exists a


relatively new remedy under procedural law that would temper the invocation

-I of national defense and security to give primacy to the right to information


in cases where violation of the right to life, liberty, and security are being
brought to fore.

4. Availing ofthe Rule on the WritofHaiJeasData (A•.ill. No. 08-1-16-SC,January


22,2008)
I 1. Definition and Purpose

I According to the rule itself, the writ of habeas data is a remedy avail-
able to any person whose right to privacy in life, liberty or security is
violated or threatened by an unlawful act or omission of a public official
I or employee, or of a private individual or entity engaged in the gathering,
collecting or storing of data or information regarding the person, family,

I home and correspondence of the aggrieved party.

As a new prerogative writ, Habeas Data became available as a result

I of the Supreme Court-convened National Consultative Summit. Habeas


Data seeks to complement all the other remedies available under the law

~
, 214 Revised Manual for Prosecutors
to protect the rights ofpersons. What, in general terms, is the utility of the
writ of habeas data?

Habeas Data is useful because it delineates the limitations to the


limitation on the right to information, i.e., it mandates the disclosure of
official records and information that could have been validly withheld
from the public by a simple invocation of "national defense and security
interests", In short, it becomes a potent tool for the resolution of cases
of enforced disappearances because it recognizes that, above national
defense and security interests, the State places a greater premium on the
protection of life, liberty and security of people. The family and loved
ones of disappeared persons cannot be derailed in their search by official
refusal to open public records because of the Writ of Habeas Data

2. By whom filed

The petition for a Writ of Habeas Data can both be a preventive and a
curative remedy:

a. As a preventive remedy, it can be filed by:

• any person whose life, liberty, or security is being threatened, or

• who is being subjected to political harassment

o Such persons can compel the disclosure of official records so


that any misinformation regarding his or her person can be
corrected or expunged.

o For example, a person may file a petition so that political


harassments and threats to his or her life, liberty, or security
on the basis of alleged information regarding affiliation with
a terrorist group can be averred. In such a case, any arrest ef-
fected against him or her will no longer have any legal basis
because the courts have already ordered rectification of his or
her records which are in the custody of officials of the State.

b. As a curative remedy, however, like in cases, where a person has al-


ready been abducted and involuntarily disappeared, the petition may
be rued by:

• his or her immediate family, or

• collateral relatives, or

Revised Manual for Prosecutors 215


------------ --- -- ------------ -

I
• any member of the community (in this particular order)
I o Such persons can seek information regarding the status of the
disappeared person, where he or she may have been detained,
I or information about him or her in the official records that may
shed light on the reason for the abduction and eventual disap-
pearance.
I o For purposes of filing a petition for issuance of the Writ of

I Habeas Data, no docket fees shall be required to be paid by


any petitioner.

I 3. Allegations in the petition

I The petition for a Writ of Habeas Data should contain the following
allegations and jurisdictional information:

I a: The personal circumstances of the petitioner and the respondent;


b. The manner the right to privacy is violated or threatened and how it
affects the right to life, liberty or security of the aggrieved party;
I c. The actions and recourses taken by the petitioner to secure the data or
information;

I d. The location of the files, registers or databases, the government office,


and the person in charge, in possession or in control of the data or
information, if known;

I e. The reliefs prayed for, which may include the updating, rectification,
suppression or destruction of the database or information or files kept
by the respondent. In case of threats, the relief may include a prayer

I for an order enjoining the act complained of; and


f. Such other relevant reliefs as are just and equitable.

I 4. Filing ofthe return

The power of the Writ to aid in the quest of families and loved ones
I in searching for disappeared persons can be seen when it is ordered to be
answered.

I Once the writ is ordered served, it can be enforceable anywhere in the


Philippines against the person or persons named in the summons. Such

I person or persons will then be compelled to file a verified return within


5 days from service of the writ, on pain of being cited for contempt of i,-'

court. ~-

I
,
, 216 Revised Manual for Prosecutors
The filing of the return represents an opportunity for the family and
loved ones of a disappeared person to scrutinize public records in the
custody 'of State officials that may lead to the surfacing of the victim or
the disclosure of the probable reason for the disappearance (invariably,
such reason may relate to confidential information regarding membership
in a terrorist group, involvement in seditious or rebellious activities, or
identification with groups who have committed past crimes or atrocities).

To this end, the return cannot simply contain a general denial of the
allegations in the petition. It shall state:

• The lawful defenses such as national security, state secrets, privi-


leged communications, confidentiality of the source of informa-
tion of media and others

o if this defense is claimed, hearings in chambers may be con-


ducted at the discretion of the court to examine the validity of
its invocation

• In case of respondent in charge, in possession or in control of the


data or information subject of the petition:

o a disclosure of the data or information about the petitioner,


the nature of such data or information, and the purpose for its
collection;

o the steps or actions taken by the respondent to ensure the secu-


rity and confidentiality of the data or information;

o the currency and accuracy of the data or information held;


and,

o Other allegations relevant to the resolution of the proceeding.

To emphasize the urgency with which the Writ of Habeas Data should
be granted in meritorious cases, the rules provide that dilatory motions
shall be prohibited and that the nature of the hearing on the petition shall
be summary.

5. Reliefthat may be granted

Once submitted for decision after hearing, judgment on the petition


should be rendered within 10 days. Note that even before submission of
the case for resolution by the courts, Habeas Data has already been able to
serve one of its functions right from the time the State official/s concerned

Revised Manual for Prosecutors 217


I
I filed their return. Information that could not have been obtained upon in-
vocation of the "national security" defense has already been disclosed to
. aid in locating a disappeared person.

I
,

However, when such information as disclosed has been established


by substantial evidence to be deleterious to the interest of the petitioner

I in protecting his or her right to life, liberty, and security, or that of his or
her loved ones, then the court shall render judgment granting any of the
following reliefs:

I o enjoinment of an act complained of

I o deletion, destruction, or rectification of erroneous data or informa-


tion

I o other equitable reliefs as may be warranted by each case.

How can this kind of judgment be treated as a human rights remedy?


I To illustrate, a disappeared person who, as disclosed by official records
surfaced during the hearings for the petition, is suspected ofbeing a mem-
ber of a terrorist group, can be released with greater facility from the mo-
I I ment the whereabouts of his or her detention is discovered because there
will be no more basis for detaining him! her or withholding information
regarding hislher tactical interrogation in case such is being conducted.
I D. REMEDIES AVAILABLE FOR COMPELLING OFFICIAL ACTION OR

I RESPONSE

1. Rationale

I More often than not, however, the gathering of information is not the
final step in the long and arduous process of locating a loved one who has
I been disappeared involuntarily. It would be an ideal situation where resort to
the right to information under the plenary grant of constitutional entitlement
would already yield positive results that would lead to the reunification of a
I disappeared person with his or her family.

When a valid defense is invoked by officials that led to the stonewalling


I of the search for the missing victim, it would also be an ideal situation where
a Writ of Habeas Data can assist in the disclosure of information leading

I to the location of the disappeared person and! or the rectiiication of his or


her dossier in the custody of the police and the military that would erase the
justification for his or her being subjected to surveillance, investigation, or

I outright harassment.

, 218 Revised Manual for Prosecutors

I
.J'
However, in cases where such information-gathering mechanisms pro-
vided by law failed to assist in the achievement of the ultimate objective of
the ongoing 'Search, more drastic measures should be employed. For example,
information may have been disclosed by the officials concerned, but such
information wiil remain just that if official response or action cannot be had
on the basis thereof. The location ofthe detention facility where a disappeared
person is being held may have been disclosed via Habeas Data, but such in-
formation will remain useless if officials concerned will continue to refuse to
release the victim on some ground.

In these cases, official action or response needs to be compelled. Under


the legal firmament of the Philippines, such can be done through employment
of two procedural rules directly mandating the production of the body of a
disappeared person, or compelling State officials to undertake measures to
actively determine his or her whereabouts.

2. Availing of the Rule on the Writ ofHabeas Corpus (Rules of Court, Rule
102)

(1) Nature and Purpose

The Rules of Court provide fora special proceeding known as the Writ
of Habeas Corpus. Habeas Corpus is a high prerogative writ, a remedy
which seeks not so much to obtain an adverse adjudication against another
as to ask the courts to initiate an inquisition on behalf of the State.

The sole and paramount objective of a petition for a Writ of Habeas


Corpus is to seek the intervention of the courts in compelling State of-
ficials exercising custody over a person to produce that person's body and
justify his or her continued confinement.

Relative to cases of enforced disappearances, habeas corpus could


operate to facilitate the location of a disappeared person when it has been
ascertained that he or she is being kept under confinement on some illegal
ground as to amount to an uulawful deprivation of his or her liberty.

(2) Allegations in the petition

1. Application for the writ shall be by petition signed and verified either
by the party for whose relief it is intended, or by some person on his
behalf, and shall set forth:

a. That the person in whose behalf the application is made is impris-


oned or restrained ofhis liberty;

Revised Manual for Prosecutors 219


--- ----------- - ---

I
b. The officer or name of the person by whom he is so imprisoned

I or restrained; or, if both are unknown or uncertain, such officer


or person may be described by an assumed appellation, and the
person who is served with the writ shall be deemed the person _
I intended;
c. The place where he is so imprisoned or restrained, ifknown;
d. A copy of the commitment or cause of detention of such person, if
I it can be procured without impairing the efficiency of the remedy;
or, if the imprisonment or restraint is without any legal authority,

I such fact shall appear.

(3) "When writ denied; when granted.

I 1. After the hearing on the petition, the court shall order the immediate
release from coniinement of the person subject of the writ if it was
I determined that the ground for the deprivation of his or her liberty is
not meritorious.

I On the other hand, if it appears:

a. that the person alleged to be restrained of his liberty is in the cus-


I tody of an officer under process issued by a court or judge, or
a. by virtue of a judgment or order of a court of record, and
b. that the court or judge had jurisdiction to issue the process, render
I the judgment, or make the order,

I the writ shall not be allowed; or if the jurisdiction appears after the
writ is allowed, the person shall not be discharged by reason of any
informality or defect in the process, judgment,.or order.

I (4) Limitations ofthe Writ

I The petition for a Writ of Habeas Corpus is an effective remedy to


compel official action in the form of the production ofthe body of a disap- I
peared person and the justification before a court of law of the legality of
I
I
the person's continued coniinement.

However, this presupposes that the family and loved ones of the
I disappeared person have already pinpointed the disappeared person's
whereabouts, whether serendipitously, by asking around, or by availing

I of the mechanisms of information-gathering as discussed in the previous


section. In cases where the information is still a bit sketchy, or not sup-
ported by enough admissible evidence, a petition for a Writ of Habeas

I Corpus may nonetheless be filed out of the desperate need to locate the

J 220 Revised Manual for Prosecutors

I
~
disappeared person, and on the faint hope that compelling State officials
to explain themselves before the courts would yield some positive result.

However, as experience would have it, habeas corpus petitions are


often stonewalled and derailed by the simple expedient of denial on the
part of the respondent-State officials, especially if the evidence that they
have the disappeared person in custody is not overwhelming enough. This
is not surprising considering that under Rule 102 of the Rules of Court,
the respondent official suspected to have under custody the disappeared
person need only to state the foilowing matters in his or her return to the
court:

1. Whether he has or has not the party in his custody or power, or


under restraint;

2. If he has the party in his custody or power, or under restraint, the


authority and the true and whole cause thereof, set forth at large,
with a copy of the writ, order, execution, or other process, if any,
uporr which the party is held;

a. If the party is in his custody or power or is restrained by him,


and Is not produced, particularly the nature and gravity of
the sickness or infirmity of such party by reason of which he
cannot, without danger, be brought before the court or judge;

b. If he has had the party in his custody or power, or under


restraint, and has transferred such custody or restraint to
another, particularly to whom, at what time, for what cause,
and by what authority such transfer was made.

Note that the premise of all the above-mentioned allegations in the


return is that the official being accused of detaining a disappeared person
actually has such person under his or her custody. If this fact is already
controverted by the allegations in the return, then the hearing for the peti-
tion for a Writ of Habeas Corpus comes to a virtual standstill. There is no
other remedy available for the complainant under the Rules of Court that
could override the denial of the State official; no mechanism by which
such denial may be required to be substantiated; no way for the official to
be compelled to do anything besides.

This is why, during the National Consultative Summit sponsored by


the Supreme Court, one of the resounding recommendations to address
the spate of enforced disappearances in the country is to fortify the habeas
corpus writ to compel State officials to go beyond a mere denial and to
undertake positive measures to aid in the location of a disappeared person.

Revised Manual for Prosecutors 221


- --------------_._-

I
The next section is dedicated to this new remedy to complement the Writ

I of Habeas Corpus.

3. Availing ofthe Rule on the Writ of'Amparo (A.il1. No. 07-9-12-SC, October
I 24,2007)

(1) Nature and Purpose


I According to the rule promulgating it, the petition for a Writ ofAmparo
is a remedy available to:
I I a. any person whose right to life, liberty and security is' violated or
I I threatened with violation by an unlawful act or omission of:

1. a public official or employee, or

I 11. a private individual or entity.

b. It shall cover extra-legal killings and enforced disappearances or


I threats thereof.

I I As a relatively new remedy, Amparo has been viewed as a proce-


dural rule that directly seeks to remedy cases of enforced disappear-
ances and extra-legal killings. Its ultimate objective is much broader
than that of habeas corpus. Whereas habeas corpus merely seeks to
I have the body of a disappeared person produced before the court or .
his or her continued deprivation of liberty justified, Amparo vests

!I the court with an almost plenary power to grant whatever remedy


is available and equitable under the law with a view to protecting a
person from actual or threatened violation of the right to life, liberty,

I or security.

(2) By whom filed


I The petition for a Writ of Amparo may be filed by the aggrieved party
or by any qualified person or entity in the following order:
II a. Any member of the immediate family, namely: the spouse, children

,I and parents of the aggrieved party;

b. Any ascendant, descendant or collateral relative of the aggrieved party

I within the fourth civil degree of consanguinity or affinity, in default of


those mentioned in the preceding paragraph; or

I c. Any concerned citizen, organization, association or institution, if


there is no known member of the immediate family or relative of the
aggrieved party;
'I" 222 Revised Manual for Prosecutors

J
d. Provided in all cases that the filing of a petition by the aggrieved party
suspends the right of all other authorized parties to file similar peti-
tions. '

Likewise, the filing of the petition by an authorized party on behalf of


the aggrieved party suspends the right of all others, observing the order
established herein. For purposes of filing the petition and in recognition
of the paramount importance of the rights being protected by the writ, no
docket fees need be paid in court.

(2) Allegations in the petition


Jtl:~" "';\:'
'....
tA';: ,~-
The petition shall be signed and verified and shall allege the follow-
t. ing:

I I~ 1;;:;:
a, , The personal circumstances of the petitioner;

i!, b. The name and personal circumstances of the respondent responsible


I

I~~¥
~?-_ for the threat, act or omission, or, if the name is unknown or uncertain,
the respondent may be described by an assumed appellation;

I I"~i c. The right to life, liberty and security of the aggrieved party violated
_.;"
or threatened with violation by an unlawful act or omission of the
I I"~.'i' respondent, and how such threat or violation is committed with the
attendant circumstances detailed in supporting affidavits;
·~,"·i

'1";\.,-:, d. The investigation conducted, if any, specifying the names, personal


circumstances, and addresses ofthe investigating authority or individ-
":0"::
uals, as well as the manner and conduct of the investigation, together
with any report;
I' e. The actions and recourses taken by the petitioner to determine the fate

I or whereabouts of the aggrieved party and the identity of the person


responsible for the threat, act or omission; and

I f. The relief prayed for. The petition may include a general prayer for
other just and equitable reliefs.

I (4) Filing ofa return

Compared to the return required to be filed in answer to a petition for a


I Writ of Habeas Corpus, the return of the respondent (which must be filed
within 72 hours from service) is required to contain allegations that are much

I I broader in scope.

,
"

Revised Manual for Prosecutors 223

es-
.it:..
I
~
In sum, the respondent in an amparo proceeding is given a heavier burden
not only to justify the continued detention of a disappeared person under cus-
tody if such were the case, but also to undertake positive measures to locate
the Whereabouts ofthe victim in case the respondent does not have him or her
I under custody.

I
i
In short, the respondent cannot simply deny that he or she has the disap-
peared person under custody; he or she also has to prove to the satisfaction
of the court that all reasonable means have been employed to ascertain that

•I
"
the victim is indeed not under custody not only by the particular unit or outfit
to which he or she is attached, but also by others to which inquiry may be
addressed using usual channels and networks of communication.

Under the rule, the return to be filed in response to a petition for a Writ of
Amparo must state the following:

I a. The lawful defenses to show that the respondent did not violate or

'.
threaten with violation the right to life, liberty and security of the ag-
grieved party, through any act or omission;

b. The steps or actions taken by the respondent to determine the fate or


'I whereabouts of the aggrieved party and the person or persons respon-
sible for the threat, act or omission;

•I c. All relevant information in the possession ofthe respondent pertaining


to the threat, act or omission against the aggrieved party; and

d. If the respondent is a public official or employee, the return shall fur-


ther state the actions that have been or will still be taken:

I 1. to verify the identity of the aggrieved party;

•I
u. to recover and preserve evidence related to the death or disappear-
ance of the person identified in the petition which may aid in the
prosecution of the person or persons responsible;
iii. to identify witnesses and obtain statements from them concerning
the death or disappearance;
1'1. to determine the cause, manner, location and time of death or
disappearance as well as any pattern or practice that may have
I brought about the death or disappearance;
v. to identify and apprehend the person or persons involved in the

I death or disappearance; and


vi. to bring the suspected offenders before a competent court.
e. The return shall also state other matters relevant to the investigation,

I its resolution and the prosecution of the case.

-~ 224 Revised Manual for Prosecutors


f. A general denial of the allegations in the petition shall not be al-
lowed.

(5) Interim reliefs that may be granted

Also, unlike in the case of habeas corpus, a petitioner under amparo


may avail of certain remedies even during the course of hearing the peti-
tion, and these interim reliefs themselves partake of protective measures
that may already achieve the purposes of the writ even before judgment
has been ordered. The following are the interim reliefs provided in the
rule:

1. Temporary Protection Order

The court, justice or judge, upon motion or motu proprio, may order
that the petitioner or the aggrieved party and any member of the im-
mediate family be protected in:

(l) a government agency

(2) an accredited person

(3) a private institution capable of keeping and securing their safety.

• With regard to these "sanctuaries" that shall harbor persons


to be protected in the interim, the Supreme Court shall ac-
credit the persons and private institutions that shall extend
temporary protection to the petitioner or the aggrieved party
and any member of the immediate family, in accordance with
guidelines which it shall issue. The accredited persons and
private institutions shall comply with the rules and conditions
that may be imposed by the court, justice or judge.

1. Inspection Order

a. The court, justice or judge, upon verified motion and after due
hearing, may order any person in possession or control of a desig-
nated land or other property, to permit entry for the purpose of:

1. inspecting,
11. measunng,
1l1. surveying, or
iv. photographing the property or any relevant object or operation
thereon.

Revised Manual for Prosecutors 225


I
b. The motion shall state in detail the place or places to be
I inspected.

c. It shall be supported by affidavits or testimonies of witnesses hav-


I ing personal knowledge of the enforced disappearance or where-
abouts of the aggrieved party.

I 1. If the motion is opposed on the ground of national security or


of the privileged nature of the information, the court, justice

I or judge may conduct a hearing in chambers to determine the


merit of the opposition.
11. The movant must show that the inspection order is neces-

I sary to establish the right of the aggrieved party alleged to be


threatened or violated.
111. The inspection order shall specify:
I (l) the person or persons authorized to make the inspection.
(2) the time, place and manner of making the inspection and
I (3) may prescribe other conditions to protect the constitutional
rights of all parties.

I IV. The order shall expire five (5) days after the date of its issu-
ance, unless extended for justifiable reasons.
II 2. Production Order

I a. The court, justice or judge, upon verified motion and after due
hearing, may order any person in possession, custody or control
of any designated documents, papers, books, accounts, letters,
I photographs, objects or tangible things, or objects in digitized or
electronic form, which constitute or contain evidence relevant to
the petition or the return, to:
I I. produce and
11. permit their inspection, copying or photographing by or on
I behalf of the movant.

I b. The motion may be opposed on the ground of national security or


ofthe privileged nature of the information, in which case the court,
justice or judge may conduct a hearing in chambers to determine

I the merit of the opposition.

c. The court, justice or judge shall prescribe other conditions to pro-


I tect the constitutional rights of all the parties.

I 226 Revised Manual for Prosecutors

I
"
4. Witness Protection Order

a. The court, justice or judge, upon motion or motu proprio, may


refer the witnesses to the Department of Justice for admission to
the Witness Protection Program (RA 6981)

b. The court, justice or judge may also refer the witnesses to:

i. other government agencies,


ii. accredited persons,
iii. or private institutions capable of keeping and securing their
safety.

I
'~
''z
1/t
.'4<,-
IV. PROSECUTING CASES OF EXTRA-LEGAL KILLING

lr :~'"
:,!-,~
A. BACKGROUND

I:,
"{
Perhaps the most abhorrent crime is that which places in jeopardy the most
sacred thing thar a person values - his or her life. There are enough bodies of
laws under criminal law that deal with such crimes. However, there is a need
to recognize that another species of killings occupy a niche of their own. These
are killings induced by the victim's political affiliations or political beliefs and
):
actuations, and involve the employment of summary or arbitrary methods of
·~f~
execution.
I:·
E'
'.', ..-.';'"
-,.-. In the Philippines, the problem was first given full recognition and assumed
the full gravity that it deserves during the National Consultative Summit organized
I
.'-'. -.
by the Supreme Court last 2007. It was later on highlighted in the Report made by
United Nations Special Rapporteur in Enforced Disappearances and Extra-legal

I; Killings Philip Alston. Prof. Alston paid a personal visit to the Philippines last
2007 and conducted investigations and inquiries personally to later on present a
report before the United Nations on the existence of an alarming number of cases

I: of extra-legal killings and enforced disappearances.

The National Consultative Summit itself was impelled by the recent spate of
I widespread killings and summary executions ofmembers ofprogressive political
groups, mostly in the countryside, and journalists widely identified as being criti-
cal of incumbent national and local officials.
I These killings are distinct in that they are committed with violation of various
human rights - they muzzle political opposition, and thereby violate a person's
I right to free speech and free expression; they are committed in a summary and
arbitrary manner, thereby violating a person's right to be accorded due process

I of law prior to imposition of any punishment; and they represent a punishment

I
,~ .. '
Revised Manual for Prosecutors 227
or treatment that is neither commensurate to whatever transgression has been
committed nor sanctioned by the criminal justice system of the country.

The defining characteristic of extra-legal killings is the fact that they are
committed in a summary, arbitrary, and sometime surreptitious manner to en-
sure impunity. Oftentimes, cases of extra-legal killings arise out of prior cases
of enforced disappearances - the persons abducted and from whom nothing was
ever heard again turn up in some lonely lot, lifeless and bearing signs of physical
maltreatment and abuse. It is therefore not easy to deal with such cases, because
there are instances where the fact of extra-legal killing will be recognized too late
and only after the ghastly murder has been committed. How, then; can the Public
Prosecutor be in the best position to confront an issue as complex as extra-legal
killing?

B. AVAILJNG OF THE WRIT OF Ai'\1PARO AS A PROTECTIVE


MEASURE

The remedy of the Writ ofAmparo is broad and encompasses not only the
compulsion of State officials to divulge information leading to the surfacing of a
disappeared person as discussed in the preceding section, but also the provision
of whatever protective remedy may be warranted, available, and equitable under
the law. Indeed, the literal meaning of the origin of the word "amparo" (i.e.,
amparar in Spanish, meaning "to protect") evinces its central function in the legal
scheme of procedural law - the protection of persons whose right to life, liberty,
or security is violated or threatened with violation.

The availment ofthe remedy ofthe Writ ofAmparo under the case of enforced
disappearance. would focus more on compelling State officials to divulge what-
ever information is within their power to acquire pertinent to the whereabouts of
the disappeared person. Under the case of extra-legal killing, however, amparo
may be availed of as a protective remedy.

Remember that amparo may be availed of even if the violation of the right to
life, liberty, or security, is only a threat. The procedural requirements for filing
the petition for the writ are the same as the one discussed in the previous section.
However, as a protective remedy, amparo can be used to compel a State official
or private individual to defend him/herself from the allegation that he or she is
committing acts constituting a threat to the right to life, liberty, or security of the
petitioner. During the hearing of the petition, the respondent can be compelled to
divulge whether the petitioner is being subjected to surveillance or investigation,
in which case the ground therefor can be scrutinized by the court for legality
and validity. Another scenario would be that the respondent can be compelled
to declare for the record that there exists no legal ground for the petitioner to be
subjected to any kind of apprehension, arrest, or interrogation because he or she
does not appear upon official records to be suspected of any wrongdoing.

228 Revised Manual for Prosecutors


Also, and perhaps more importantly, the Writ ofAmparo can be used not only
to obtain official assurance against threats to life, liberty or security under the
aegis of a court 'of justice. The Writ of Amparo, with its built-in interim reliefs
as discussed in the preceding section, can provide the petitioner with protective
remedies that would ensure that his or her life, liberty, or security will not be
compromised even while the petition is being heard. This provision in the rule
represents an acknowledgment that the pronouncements of State officials before
the court cannot be taken at their face value; that even while they give assurances
against threats to life, liberty, or security, it does not mean that the petitioner
becomes less insecure and less vulnerable to sudden violations.

Rather than be complacent, the court shall be proactive in according protec-


tion to the petitioner in such manner as to avert the occurrence of extra-legal kill-
ing. Truly, there exists a remedy under procedural law that may be availed, at the
outset, avert the possibility of one being subjected to extra-legal killing. As such,
every person, especially those operating within sensitive political arenas, should
be vigilant in securing the aid of counsel for the filing of a petition for a Writ of
Amparo at the first signs or information of threats to life, liberty, or security.

C. REMEDIES AVAILABLE FOR JNFORMATION-GATHERING

The remedies discussed above should be employed immediately after a person


has been abducted, arrested under questionable circumstances, or has disappeared
without warning. Following the procedures as outlined in the preceding part on
Enforced Disappearance, the family and loved ones of a person who has suddenly
,,;1; disappeared should avail of all available information-gathering mechanisms like
resort to requests for information from official agencies, or resort to the petition
1r for a Writ ofHabeas Data. This information-gathering stage is necessary to ascer-

i;
_~J':.
-,_~::l:;o
tain the condition and whereabouts of a disappeared person. In the process, one of
the unfortunate information that may be unearthed is the fact that the disappeared
>;-;-
person has been the victim of extra-legal killing.

I:
.-:/ D. AVAILMENT OFGENERIC REMEDIES FORHUMANRIGHTSVIOLA-
TIONS
I When the extra-legal killing has been attended by violation of any of the civil
and political rights and liberties enumerated in Article 32 of the Civil Code (e.g.,
I the right not to be subjected to illegal or arbitrary detention, or cruel and unusual
punishment), an action for damages may be maintained. As explained in Part II of
this Manual, this is without prejudice to the claiming of damages of the kind that
I is deemed instituted with every criminal action, supposing the act complained of
also amounts to a punishable felony (which extra-legal killing undoubtedly is).

I In addition, since the Victim Compensation Act expressly recognizes the right
of compensation should a violent crime be committed which resulted in death,

I Revised Manual for Prosecutors 229

Ii~-
- --~--------

then the heirs ofthe victim can also file a claim before the Board of Claims of the
Department of Justice.

I ;
E. PROSECUTION UNDER THE HlJMAJ.~ SECURITY ACT

The Human Security Act, as already explained eariier, provides that, "any
person or persons who use threat, intimidation, or coercion, or who in:tlictphysi-
cal 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 (12)
years and one day to twenty (20) years of imprisonment. 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 in:tliction on
him of such physical pain or torment, or as a consequence ofthe infliction on him
of such mental, moral, or psychological pressure, the penalty shall be twelve (12)
years and one day to twenty (20) years of imprisonment."

This is relevant when the victim is arrested for being a suspected terrorist
or co-conspirator in a terrorist plot and then subjected to physical maltreatment
which resulted in death. A killing under these circumstances also qualifies as an
extra-legal killing because there is a political dimension to the prior arrest of the
person, but the person was later on subjected to a death that was not sanctioned by
the law, thereby qualifying the killing as extra-legal. Whoever is responsible for
the physical maltreatment thatresuited in the extra-legal killing may be prosecuted
directly under the Human Security Act provisions, with the penalties imposable
as quoted above,

F. ClUMINALACTIONS

Extra-legal killings are given a niche of their own because of their human
rights dimensions. However, in the eyes of criminal law, extra-legal killings,
despite their political underpinnings, despite their summary and arbitrary uature,
and despite the perceived involvement of State officials and agencies by way of
direct commission or indirect acquiescence by silence, are still takings of the life
of another. Under the Revised Penal Code, extra-legal killings qualify as either
murder or homicide (Article 248 and 249, respectively), and the circumstances
under which the killing was effected may warrant the contemplation ofthe aggra-
vatingcircumstances of taking advantage ofpublic position, lack ofprovocation,
noctumity, being committed by a band, evident premeditation, taking advantage
of superior strength, or treachery! aievosia.

230 Revised Manual for Prosecutors


V. PROSECUTING CASES OF INVOLUNTARY DISPLACEMENT

A. BACKGROUND
'..

"I .. ~.
The liberty of abode and of freedom of movement is one- of the fundamental
"':.-
,":c'tI rights guaranteed by the Constitution. It is provided therein that "the liberty of
·~; abode and of changing the same within the limits prescribed by law shall not be
_L
·-t'.- impaired except upon lawful order of the court. Neither shall the right to travel be
~-- impaired except in the interest ofnational security, public safety, or public health,

I ·· ,. as may be provided by law." (Article ill. Sec. 6)


I ~~
i't
~-;,;...,
'4""r.-- These rights spring from the inherent entitlement of every person to establish

f a domicile in a place that he or she finds necessary, convenient, or beneficial, ow-


ing to personal needs and circumstances and considerations oflivelihood, culture, •

I
and physiology.

Concomitant to this right to settle down, however, is also the freedom to

I change the same voluntarily. In the constitutional provision just quoted, the only
restriction to every person's constitutionally protected liberty of movement are
issues of national security, public safety, or public health; and even then, such

i restrictions must be laid down explicitly by legislation.

These two intertwining rights to abode and movement is inherent in one's


I I: right to liberty. The rights and privileges accorded to a citizen will be seriously
impaired if he/ she is prevented from choosing a permanent place of residence
in which one, in his/her personal opinion, is in the best position to exercise such
rights and fulfill their corresponding duties. .
I It also violates the constitutional protection of one's property for the State

I to arbitrarily order the transfer of its citizens from one place to another without
regard of resulting economic consequences like the loss of a job, occupation, or
real property. Lastly, a person's life and culture is almost always inextricably

I tied to one's place of residence. Therefore, any act of the State which arbitrarily
impairs the right of abode and movement can result in unduly uprooting a citizen
from the place to which he/ she has cultural ties.

I How can certain acts violate the right of abode and freedom of movement?
The practice of "harnletting", or the saturation of a local village or area by State

'I officials for strategic military or police objectives and the forcible evacuation of
its people to other locations is one such act violative of the right of abode and
freedom of movement. As these rights are infused with a heavy public policy
I dimension, caution should be taken in the commission of acts that may impinge
on them; and if violations have been committed against them, they should be
proceededagainstaccordingl~
I
'I Revised Manual for Prosecutors 231

,J
!.
I I
B. GUIDELINES IN THE DELIMITATION OF THE RIGHT OF ABODE

I AND RIGHT TO FREEDOM OF MOVEMENT

In the' celebrated case of Villavicencio v. Lukban, 39 Phil. 778 (1919), women


I arrested in the City of Manila by Mayor Lukban for being employed in houses of
ill repute were deported against their will to Davao. In doing so, Mayor Lukban
justified his act using the police power prerogatives of local government officials.
I In striking down the act as unconstitutional for being violative of the right of
abode and freedom of movement, the Supreme Court had occasion to lay down

I I the paramount guideline in the conduct of any official act that would have the
effect of delimiting the people's right to abode and freedom of movement: that
there must be a law authorizing the same. The Court asseverated in this wise:

I "Alien prostitutes can be expelled from the Philippine Islands in


conformity with an Act of Congress. The Governor-General can order

I the eviction of undesirable aliens after a hearing from the Islands. Act
No. 519 of the Philippine Commission and Sec. 733 of the Revised
Ordinances of the City of Manila provide for the conviction and pun-
I ishment by a court ofjustice ofany person who is a common prostitute.
Act No. 899 authorizes the return of any citizen ofthe United States,
who may have been convicted ofvagrancy, to the homeland. New York
I and other States have statutes providing for the commitment to the
House of Refuge of women convicted of being common prostitutes.
Always a law! Even when the health authorities compel vaccination,
I or establish a quarantine, or place a leprous person in the Culion leper
colony, it is done pursuant to some law or order. But one can search

I in vain for any law, order, or regulation, which even hints at the right
of the Mayor of the City of Manila or the chief of police of that city
to force citizens of the Philippine Islands - and these women despite

I their being in a sense lepers of society are nevertheless not chattels but
Philippine citizens protected by the same constitutional guaranties as
are other citizens - to change their domicile from Manila to another

I locality. On the contrary, Philippine penal law specifically punishes


any public officer who, not being expressly authorized by law or regu-
lation, compels any person to change his residence."
I As such, unless the forcible evacuation and relocation of people could be
justified without cavil of doubt by exigencies of national security, public safety,
I or public health, these acts cannot be undertaken without express support in law.

C. REMEDIES AVAILABLE FOR VIOLATION


I 1. Action for damages under the generic remedies for human rights

I violations

I 232 Revised Manual for Prosecutors

I
(1) Article 32 of the Civil Code, as discussed earlier in this manual, expressly
recognizes that the violation of the right to abode and freedom of move-
ment is an act that would warrant compensation by way of moral and
exemplary 'damages.

(2) This is without prejudice to whatever civil action for damages may be
maintained as a consequence of the criminal act to which the violation
would amount.
,Y;·',
I
~'<'

'}:".
:.1i:
2. Criminal action for Expulsion (Art. 127, Revised Penal Code)

I
·, ~'t;~;'" a. The felony of expulsion as punished in the Revised Penal Code has the
~:,

~r
following elements:
\;-.

i
1. Offender is a public officer or employee;
2. He either expels any person from the Philippines; or compels a person
to change residence;
3. Offender is not authorized to do so by law.
f 3. Criminal action for Grave Coercion (Art. 286, Revised Penal Code)

I (1) When the perpetrator of an act violative of the right of abode and freedom
of movement is not a public officer, such act would qualify as grave co-
ercion punishable by the Revised Penal Code. The elements of the felony
I are:

I L 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;

I 2. The prevention or compulsion be effected by violence, threats or in-


timidation; and
3. The person that restrained the will and liberty of another had not the

I authority of law or the right to do so, or in other words, that the re-
straint shall not be made under authority of law or in the exercise of
any lawful right.
I VI. GENERIC REMEDIES FOR HUMAN RIGHTS VIOLATIONS

I A. PRESENT CONTEXT

I Currently, human rights violations are not given particular and direct treat-
ment under the law. As it were, the multifarious ways by which a person's human
rights may be violated are addressed by way of distinct criminal actions that may

I be instituted whenever particular acts fall within the ambit of the law punishing
such. Their generic character means that these remedies may be availed of in

J
,'~
~-
Revised Manual for Prosecutors 233
- -- ---
,

I
I almost all acts amounting to a violation of human rights, including the particular

,
cases of human rights violations given treatment in this. However, two remedies,
one under the general civil law on damages and the other as provided in special
law, stand out as among the instances where the violation of human rights is
treated as a wrongful act warranting redress.

~
B. ACTION FOR DAMAGES UNDER THE CIVIL CODE (ARTICLE 32)

1. Nature and quantum ofevidence required.

I Under Article 32 of the Civil Code, an independent action for damages


may be maintained for the violation of a person's civil and political rights.

I It being an independent action, it can be instituted separately from, and

I without prejudice to the filing of, a criminal action in cases where the viola-
tion would also qualify as a criminally punishable act.

I Further, it being a civil action, the quantum of evidence required for it to


be granted by the courts is mere preponderance of evidence.

~
2. By whom filed.

Any person whose civil and political rights and liberties as enumerated

I in paragraph (4) below have been directly or indirectly obstructed, defeated,


violated, or in any manner impeded or impaired.

I 3. Against whom filed.

I
Any public officer or employee or any private individual.

4. Grounds to be alleged (elements ofcause ofaction).

I- • That the person bringing suit has the right to enjoy, under the law, civil

I-
and! or political rights and! or liberties.

• That the person being sued has a duty under the law to respect the exercise

I- •
of such civil and! or political rights and! or liberties.

That, despite this duty, the person being sued directly or indirectly ob-
structed, defeated, violated, or in any manner of impeded or impaired

I such civil and! or political rights and! or liberties.

I
• That the civil and! or political rights and! or liberties obstructed, defeated,
violated, or in any manner impeded or impaired falls under the enumera-

,
I 234
tion in Article 32 of the Civil Code:

Revised Manual for Prosecutors


o Freedom of religion
o Freedom ofspeech
o Freedom to write for the press or to maintain a periodical publication
o Freedom from arbitrary or illegal detention
a Freedom of suffrage
o The right against deprivation of property without due process oflaw
o The right to just compensation when property is taken for public use
o The right to equal protection of the laws
o The right to be secure in one's person, house, papers and effects against
unreasonable searches and seizures
a The liberty of abode and of changing the same
a The right to privacy of communication and correspondence
o The right to become a member of associations and societies for pur-
poses not contrary to law
o The right to take part in a peaceable assembly and petition the govern-
ment for redress of grievances
o The right to be free from involuntary servitude in any form
o The right of the accused against excessive bail
o The right of the accused to be heard by himself and counsel, to be
informed of the nature and cause of the accusation against him, to
have a speedy and public trial, to meet the witnesses face to face, to
have compulsory process to secure the attendance of witnesses on his
behaif;
a Freedom from being compelled to be a witness against one's self, or
from being forced to confess his guilt, or from being induced by a
promise of immunity or reward to make such confession, except when
the person confessing becomes a State witness.
o Freedom from excessive fines, or cruel and unusual punishment,
unless the same is imposed or inflicted in accordance with a statute
which has not been judicially declared unconstitutional;
a Freedom of access to the courts

• That as a consequence of such obstruction, defeat, violation, impediment


or impairment, the person bringing suit has sustained actual and moral
injuries, provided, that if such obstruction, defeat, violation, impediment
or impairment was done in a wanton, reckless, and malicious manner,
exemplary damages may rightfully be claimed and awarded.

5. Reliefthat may be granted.

The victim filing the complaint may be indemnified at the discretion of


the courts by way of moral damages and, in cases warranting it, exemplary
damages.

Revised Manual for Prosecutors 235


I C. FILING A CLAIM BEFORE THE BOARD OF CLAIMS OF THE

-~ DEPARTMENT OF JUSTICE UNDER THE VICTIM COMPENSATION


ACT eRA 7309)

1. Legal basis

~I a. A claim to be filed before the Board of Claims ofthe Department of Justice


is a right given by law under the Victim Compensation Act enacted in
1992.

I b. The funds to be used for the satisfaction of awards brought under this law
shall be sourced from whatever amount may be appropriated by Congress
from the funds ofthe National Treasury, the amount of five pesos set aside
I I from each filing fee in every civil case filed in court, 1% ofnet earnings of
PAGCOR and 1% oftb.e proceeds of the sale of military camps in Metro
Manila. (Title L Sec. 1 (e), IRR ofRA 7309).

I • By whom filed;

I '0 any person who was unjustly accused, convicted and imprisoned but
subsequently released by virtue of a judgment of acquittal;

I I o any person who was unjustly detained and released without being
charged;

I o any victim of arbitrary or illegal detention by the authorities as defined


in the Revised Penal Code under a final judgment of the court; and

I o any person who is a victim of violent crimes such "violent crimes"


being defined by the law as including:

I o rape; or
o offenses committed with malice which resulted in death or serious
I physical and/or psychological injuries, permanent incapacity or
disability, insanity, abortion, serious trauma; or
C committed with torture, cruelty or barbarity.
I o The heir of a person entitled to any award under this Act who died or
was incapacitated.
I • Procedure for filing claims (Title III, Sec. 2, IRR ofRA 7309)

I
I
o In case of a person who was unjustly accused, convicted and impris-
oned but subsequently released by virtue of a judgment of acquittal,
he must provide the following:
II
!

J 236 Revised Manual for Prosecutors

,J
? a certified true copy ofthe judgment of acquittal;
? certified true copies of the commitment order and release from
confinement by the jail warden or prison authority concerned.

o In case of a person who was unjustly detained and released without t-


,

being charged, he must provide the following:

? any proof to show that he was unjustly detained without being


charged.

o In case of a victim of arbitrary or illegal detention by authorities as


defined in the Revised Penal Code under a final judgment of the court,
he must provide the following:

I
~;'
? certified true copy of the final judgment.

o In case of a person who is a victim of violent crimes, he must provide

I~
the following:

.• ? any evidence that would prove that he is a victim ofviolent crimes

I' including but not limited to the certified true copy of the report to
the police or a doctor's/psychiatrist's certificate, if necessary.

i,:--~

'O~~
'.
o If claimant is an heir, he shall also submit the following:

? Death certificate of the person entitled to an award or government

I
.-.;--
?
»
doctor's certificate of incapacity;
Marriage certificate if claimant is the spouse;
Birth certificate/s if claimant is a child/children; or,

I ? Proof of relationship that he/she is a parent, brother or sister.

• Procedure for processing ofclaims (Title Ill, Sec 3, IRR ofRA 7309)
I o After the claim has been docketed and given a claim number, it shall

I be assigned to an Evaluator who shall evaluate the merits of the claim.


Should there be a need to verify the authenticity of the evidence pre-
sented, he shall direct an investigation thereof;

I o The investigator shall submit his report to the Evaluator within five
days from assignment. The Evaluator shall submit his recommenda-

I tion to the Board within ten days from the submission of the investi-
gator's report;

I o The Board shall resolve the claim within thirty working days after the

, filing of the application; and,

, Revised Manual for Prosecutors 237


o Within fifteen days from receipt of the resolution of the Board, an
aggrieved claimant may appeal to the Secretary ofJustice whose deci-
sion shall be final and executory.

• Time period(Title HI, Sec. 1,lRR of1U 7309)

o A claim under the Victim Compensation Act should be brought within


6 months from being released from imprisonment or detention, or

o Within 6 months from the date the victim suffered damage or injury.

• Reliefthat may be granted

o Victims of unjust imprisonment or detention may be compeusated


based on the number of months of imprisonment or detention and
every fraction thereof shall be considered one month.

o Any compeusation in such cases, however cannot exceed the amount


of P I,000 pesos per month.

o For all other cases, the maximum amount of compensation that may be
granted by the Board of Claims shall not exceed PlO,OOO.OO pesos or
the amount necessary to reimburse the claimant the expeuses incurred
for hospitalization, medical treatment, loss of wage, loss of support or
other expenses directly related to injury, whichever is lower.

o The availment of compensation under RA 7309 is without prejudice


to the right of the claimant to seek other remedies under existing laws
(therefore, the claimant can still claim damages or file any other action
when justified under law).

238 Revised Manual for Prosecutors


1
I

Special Section on
Prosecuting Violations of the
National Internal Revenue Code (NIRC)
and Related Laws

Revised Manual for Prosecutors 239


I
Special Section on Prosecuting Violations of the National Internal
I Revenue Code (NIRC) and Related Laws

I I
i
I. POINTERS IN THE PROSECUTION OF TAX CASES
I!
1. The prosecutor shall interview tax investigators and witnesses to gain an overall
understanding ofthe nature ofthe dispute, the facts giving rise to and surrounding
I the dispute.

2. The prosecutor shall acquire additional information from witnesses which may
I not have been related to him by the investigator. (Goldstein, Trial Technique, p.
226)

I, 3. The prosecutor shall find out whether the witness (informant, asset, etc.) has any
interest on the outcome of the action; and

I 4. The prosecutor shall endeavor to find out other circumstances that may affect the

~
competency and credibility of the witnesses. (Elliot, The Work of the Advocate,
p.6.)
J
5. The prosecutor shall determine, as far as practicable, what laws and jurisprudence
II
are applicable in the case and how they are applicable to the set of facts as relayed
by the investigator and witnesses.

I 6. The prosecutor shall create a theory of the case which is defined as the framework
for the presentation of the facts and law, (Trial Preparation, David Broad, p.

I 2) or a comprehensive and orderly mental arrangement of principles and facts,


conceived and constructed for the purpose of securing a judgment or decree of a
court in favor of a litigant. (Elliot, 1 General Practice, Sec. 39)

I 7. In the preparation of the witnesses, it is improper for prosecutors to "coach" a


witness respecting the evidence which he or she will give. However, it is impor-
I tant that prosecutors understand and appreciate fully the nature of the evidence in
tax cases which the witness will give on the issues.

I 8. The prosecutor shall prepare the trial brief pursuant to DOJ Department Circular
No. 47, s. 2000.

I 9. In organizing the exhibits, the prosecutor shall, if possible, put them in a clear
book. The original should be on one side and the photocopy on the other.

I
J
I 240 Revised Manual for Prosecutors

I J
II. INSTITUTION OF CRIMINAL CASES

The initiation ora criminal action involving violations of the National Internal
Revenue Code (NIRC) and other laws enforced by the Bureau of Internal Revenue
(BIR) must bear the authority/approval of the Commissioner of Internal Revenue.
~i~':
,~~,

I"
All criminal actions wherein the amount of taxes and fees involved is One Million
-~-~ pesos (Php I ,000,000.00) or more shall be filed before the Court ofTax Appeals (CTA)

If in the exercise of its original jurisdiction.

A; Prosecution of Criminal Actions

i
, j';
The prosecution of violations of the National Internal Revenue Code (NIRC)
or related laws may be conducted by the duly deputized legal officers of the BIR.
under the direct control and supervision of the public prosecutor,
I
7.0' B.Bail

t The recommended bail shall be in accordance with the DOJ Bail Bond
Guide.

I C. Pre-trial

I I The parties may not be allowed to compromise the criminal liability or submit
the case to mediation, arbitration or other mode of alternative dispute resolution.

I m. COMMON TAX OFFENSES (UNDER THE NIRC)

A. Sec. 254. Attempt to Evade or Defeat Tax. - Any person who willfully attempts
I in any manner to evade or defeat any tax imposed under this Code or the pay-
ment thereof shall, in addition to other penalties provided by law, upon conviction
thereof, be punished by a fine not less than Thirty thousand pesos (p30,OOO) but
I not more than One hundred thousand pesos (plOO,OOO) and suffer imprisonment
of not less than two (2) years but not more four (4) years: Provided, that the

I conviction or acquittal obtained under this section shall not be a bar to the filing
of a civil suit for the collection of taxes.

I 1. Elements of Sec. 254:

a. A tax imposed under the Tax Code;


I b. A person, natural or juridical, is liable to that tax; and
c. Such person willfully attempts in any manner to evade or defeat any tax
imposed under the NIRC or the payment thereof
I
, Revised Manual for Prosecutors 241

Ik:
i_
I Ti
2. Tax evasion connotes the integration of three factors:

I a. The end to be achieved, i.e., the payment ofless than that known by the
taxpayer to be legally due, or the non-payment of tax when it is shown

I that a tax is due;

b. An accompanying state of mind which is described as being "evil," in


I "bad faith," "willful," or "deliberate and not accidental;" and a course of
action or failure of action which is unlawful. (Commissioner of Internal
Revenue vs. Estate of Benigno Toda, Jr. (GR No. 147188. September 14,
I 2004)

3. Documentary Evidence Required:


I a. Securities and Exchange Commission (SEC) Certiiicate of Registration,

I Articles of Incorporation & By-Laws or Articles of Partnership (in case


of a corporation)
b. Corporate documents showing signature! participation in the conduct of

I business
c. General Information Sheet showing the identity of the corporate officers
as enumerated in Sec. 253 (d):
I c.l. partner
c.2. president
c.3. general manager
I cA. branch manager
c.5. treasurer
c.6. officer-in-charge
I c.7. employees responsible for the violation
d. Tax Return of the taxpayer
e. BIR registration (Integrated Tax System [ITS]/RDO certiiication) to show
I that the person is a registered taxpayer
f. Deeds of Conveyance & Certificate Authorizing Registration (in case of

I One-Time Transaction [ONEITJ)


g. Contracts
h. Mayor's Permit

I 1. Department of Trade and Industry (DTI) registration (if sole proprietor-


ship)
J. Proof of income received or documents to show source of income
I k. Any other documents showing participation! involvement ofother persons
in the commission of the offense
1. Third Party Certification (original or if unavailable, certiiied true copy)
I m. Certification from the district, region or ITS showing existence or non-
existence of return

I n. Fraudulent Scheme:
n.l. In case of ONETT, 2 or more Deeds of Conveyance
l
J 242 Revised Manual for Prosecutors

J I

-L
n.Z, Using dummy/ies
nJ. Using fake Certificate Authorizing Registration (CAR) to commit
taxevasion
o. Badges ofFraud:
0.1. intentional and substantial understatement of taxable income as
shown in the returns, financial statements, balance sheet, or deeds
of conveyance showing receipt of income (underdeclaration of in-
come);
0.2. intentional and substantial overstatement (over-claiming) of deduc-
tions or exemptions as shown in returns, financial statements, bal-
ance sheets, invoices;

I
·'"~·· 0.3. any act or recurrence of the foregoing or similar circumstances
'7:' (Vztug, citing Collector vs. Reyes)
:_1~
0.4, recurrence of failure to perform legal obligation, i.e., obligation to

f file return, pay tax, withhold tax, remit tax, supply correct and ac-
curate information, refund excess taxes withheld on compensation
0.5. making it appear that one has filed a return or actually filing a return
and subsequently withdraws the same after securing the official

1-
,~\};'
receiving seal or stamp
0.6. securing or use of multiple or different TINs

I, -,.:;
0.7. in case ofONETT, price/consideration in the deed inconsistent with
return or the CAR, use of falsified CAR to transfer property
~' ,-< 0.8. other schemes to prove intent to evade tax

I"'~
0.9. Computation showing substantial under-declaration or substantial
overstatement as stated in:

I' Sec. 248. Civil Penalties. - (B) In case of willful neglect to file
the return within the period prescribed by this Code or by rules and
;':::.
regulations, or in case a false or fraudulent return is willfully made,

I the penalty to be imposed shall be fifty percent (50%) ofthe tax or of


the deficiency tax, in case any payment has been made on the basis
of such return before the discovery of the falsity or fraud: Provided,
I that a substantial underdeclaration of taxable sales, receipts or in-
come, or a substantial overstatement or deductions, as determined
by the Commissioner pursuant to the rules and regulations to be
I promulgated by the Secretary of Finance, shall constitute prima fa-
cie evidence of a false or fraudulent return: Provided. further; That

I failure to report sales, receipts or income in an amount exceeding


thirty percent (30%) ofthat declared per return, and a claim ofde-
ductions in an amount exceeding (30%) of actual deductions. shall

I render the taxpayer liable for substantial underdeclaration ofsales,


receipts or income or for overstatement ofdeductions, as mentioned
herein.
I
,,. Revised Manual for Prosecutors 243

~{
i
I
B. Sec. 255. Failure to FiIeReturn, SupplyCorrect andAccurateInformation,
Pay Tax Withheld and Remit Tax and Refund Excess Taxes Withheld on
Compensation. - Any person required under this Code or by rules and regulations

I promulgated thereunder to pay any tax make a return, keep any record, or supply
correct and accurate information, who willfully fails to pay such tax, make such
return, keep such record, or supply correct and accurate information, or withhold

a or remit taxes withheld, or refund excess taxes withheld on compensation, at the


time or times required by law or rules and regulations shall, in addition to other
penalties provided by law, upon conviction thereof, be punished by a fine of not

I less than Ten thousand pesos (PIO,OOO) and suffer imprisonment of not less than
one (l) year but not more than ten (10) years.

-I Any person who attempts to make it appear for any reason that he or another
has in fact filed a return or statement, or actually files a return or statement and
subsequently withdraws the same return or statement after securing the official
receiving seal or stamp of receipt of internal revenue office wherein the same
was actually filed shall, upon conviction thereof, be punished by a fine of not less

I than Ten thousand pesos (PIO,OOO) but not more than Twenty thousand pesos
(P20,OOO) and suffer imprisonment ofnot less than one (1) year but not more than
three (3) years.

I 1. Elements of Sec. 255:

I a. A person is required under the Tax Code, or by rules and regulations,


to pay any tax, make a return, keep any record, or supply correct and
accurate information;

I b. At the time or times required by law or rules and regulations;


c. Such person willfully fails to make such return, keep such record, or
supply such correct and accurate information, or withhold or remit taxes

I withheld, or refund excess taxes withheld on compensation; and


d. Asa result, such person failed to pay the correct tax.

I 2. Documentary Evidence Required:

a. SEC Certificate of Registration, Articles of Incorporation & By-Laws or


I Articles of Partnership (in case of a corporation)
b. Corporate documents showing signature/participation in the conduct of
business
I c. General Information Sheet showing the identity of the corporate officers
as enumerated in Sec. 253 (d):
c.l , partner
I c.2. president
c.3. general manager
I cA. branch manager

, 244
c.S. treasurer

Revised Manual for Prosecutors

J
c.6. officer-in-charge
c.7. employees responsible for the violate
d. Tax Return of the taxpayer
e. BIR registration (Integrated Tax System [ITS]/RDO certification) to show
that the person is a registered taxpayer
f. Deeds ofconveyance & Certificate ofAuthorizing Registration (in case of
One-Time Transaction [ONETT])
g. Contracts
h. Mayor's permit to show that business is in operation
1. DTI registration (if sole proprietorship)
]. DT! or SEC records to show existence of business operation
"Or; k. Proof of income received or documents to show source of income

I '~'-
~-.
~;;-
1. Any other documents showing participation! involvement ofother persons
in the commission of the offense
:Z"i m. Notice of Informal Conference

1 _~,-
[1"
n.
o.
Preliminary Assessment Notice (PAN)
Formal Letter of Demand & Final Assessment Notice (FAN)

I.:~-
'~~, p. Pro-forma Protest, if there's any
,
q. Certification from Collection and Enforcement Division (CED) of no

i; ."
r.
s.
payment
Tax Return
Third Party Information (certification) to show income
1. Other proof that income is received

i u.

v.
First! Second! Final request for presentation of books of accounts i ac-
counting records
RDO Certification of no return filed

I
>:-'_c
w.
x,
Certificate of creditable withholding tax
Certification from government agencies and/or private entities to show
mcome

I y.
z.
Financial statements
Alpha List from district, Withholding Tax Division or Large Taxpayer
Service
I aa. Computation of tax liability

'.I 3. Expenditure MethodlNet Worth Method - requirement of opening net


worth

• Revenue Audit Memorandum Order No. 1-2000

4. Revised Penal Code Provision on Malversation in relation to WilHul

•I Failure to Remit

"Art. 217. Malversation of public funds or property. - Presumption of


Malversation. - Any public officer who, by reason of the duties of his office,

, is accountable for public funds or property, shall appropriate the same or shall

Revised Manual for Prosecutors 245

I
I I
take or misappropriate or shall consent, through abandonment or negligence,
I I shall permit any other person to take such public funds, or property, wholly or
parrially, or shall otherwise be guilty of the misappropriation or malversation
of such funds or property xxx xxx xxx"
I a. The provisions of Art. 217 shall apply to:

I a.l. Private individuals who, in any capacity whatsoever, have charge of


national, provincial or municipal funds, revenues or property; and

I a.2. Any administrator or depository of funds or property attached, sized


or deposited by public authority.

I b. Elements of Art. 217:

b.l. Offender is an accountable public officer;


I b.2 That he had the custody or control of funds or property by reason of
the duties of his office;
b.3. That those funds or property were public funds or declared by law
I with public character; and
b.4. That he appropriated, took, misappropriated or consented or, through
abandonment or negligence, permitted another person to take them.
I 5. Art. 222. Officers included in the preceding provisions. - The provisions of
this chapter shall apply to private individuals who in any capacity whatever,
I have charge of any insular (now national), provincial, or municipal funds,
revenues, or property or to any administrator or depository of funds or prop-

I erty attached, seized, or deposited by public authority, even if such property


belongs to a private individual

I • Tax Code Provisions on Willful Failure to Remit in relation to RPC


Provision on Malversation

I o Sees. 58 and 81

C. Sec. 257 (B)(8) - Knowingly Uses Fake Certificate Authorizing Registration


I Sec. 257. Penal Liability for Making False Entries, Records or Reports, or
f
I Using Falsified or Fake Accountable Forms.
1
,
(B) Any person who: I
I I xxx
I

I (8) Willfully attempts in any manner to evade or defeat any tax im-
posed under this Code, or knowingly uses fake or falsified revenue official

I I
246 Revised Manual for Prosecutors

I :1
receipts, Letters ofAuthority, certificates authorizing registration, Tax Credit
Certificates. Tax Debit Memoranda and other accountable farms shall, upon
conviction for each act or omission, be punished by a fine not less than Fifty
thousand pesos (p50,000) but not more than One hundred thousand pesos
(plOO,OOO) and suffer imprisonment of not less than two (2) years but not
· "

"I
B:'
more than six (6) years.

1. Elements of Sec. 257 (B)(8):


~','
I
!'·~

~, a. Any person, natural or juridical; and


~-l.
~.,."
b. He knowingly uses fake or falsified revenue official receipts, Letters of
-s,l~
':0-;;. Authority, certificates authorizing registration, Tax Credit Certificates,

1 ""'. Tax Debit Memoranda and other accountable forms.

i 2. Documentary Evidence Required:

a. SEC Certificate of Registration, Articles of Incorporation & By-Laws or

~,
Articles of Partnership (in case of a corporation)
b. Corporate documents showing signature/participation in the conduct of
:.~;;E{;
business
c. General Information Sheet showing the identity of the corporate officers
I -~~:
.;y
: .-~~,.
as enumerated in Sec. 253 (d):
~.1. partner
c.2. president

"
,'
I.,',""
\'
c.3. general manager
cA. branch manager
c.S. treasurer manager
c.6. officer-in-charge
c.7. employees responsible for the violation
,~ d. Tax Return of the taxpayer
e. BIR registration (Integrated Tax System (ITS) iRDO certification) to show
-~"'~-
that the person isa registered taxpayer

I ,"r._
f Deeds of Conveyance & Certificate Authorizing Registration (in case of
One-Time Transaction [ONETT])
g. Contracts
I h. Mayor's permit to show that business is in operation
1. DTI registration (if single proprietorship)
J. DTI or SEC records to show existence of business / operation
I k. Proof of income received or documents to show sources of income
1. Any other documents showing participation! involvement ofother persons

I in the commission of the offense (conspirators)


m. Revenue official receipts
n. Letter ofAuthority

I o. Certificate Authorizing Registration

, p. Tax credit Certificates

,.
~>
Revised Manual for Prosecutors 247
---- - - - - - - - - -- ----------------- - - -

I
q. Tax Debit Memoranda and other accountable forms
I r, Certification from district, region, ITS as to authenticity of tax forms
s. Register of Deeds documents
t, Deeds of Conveyance
I u. Contracts
v, Other documents to show that there was a fraudulent scheme adopted to
produce or use a falsified CAR or other forms.
I 3. Revised Penal C ode Provtsion on Falsification in relation to Sec. 257 (B)

I (8) of the NIRC

Art.I72. Falsification by private individuals and use of falsified doeu-

I ments.- The penalty ofprision correctional in its medium and maximum peri-
ods and a fine of not more than 5,000 pesos shall be imposed upon:

I 1. Any private individual who shall commit any of the falsifications


enumerated in the next proceeding article in any public or official docu-
ment of letter of exchange or any other kind of commercial document;
I arid

xxx xxx .xxx


I Any person who shall knowingly introduce in evidence in any judicial

I proceeding or to the damage of another or who, with the intent to cause


such damage, shall use any of the false documents in the next preced-
ing article or in any of the foregoing subdivisions of this article, shall be

I punished by the penalty next lower in degree.

a. Elements of Paragraph 1 (Falsification of public, official or commer-

I cial document by a private individual):

a.l. That the offender is a private individual or a public officer or em-


I ployee who did not take advantages of his official position;
a.2. That he committed any of the acts of falsifications enumerated in "r
I- Art.l71; and
a.3. That the falsification was committed in a public or official or com-
1
?1
mercial document. i
J,
I b. Elements of the Last Paragraph (Use of Falsified Document): 1I
'~
I
I b.l. That the offender knew that a document was falsified by another
person;
j
j
I
b.2. That the false document is embraced in Art. 171 or in any of the
i
I subdivision No.1 or 2 ofArt. 172;
b.3. That he used such document (not in judicial proceedings); and

"

248 Revised Manual for Prosecutors


"
b.4. That the use of the false document caused damage to another or
least, it was with intent to cause such damage.

• Note (p. 247, Revised Penal Code by Luis B. Reyes):

Ifthe one who used the falsified document is the same person
who falsified it, the crime is only falsification and the use of the
same is not a separate crime.

The user of the falsified document is deemed the author of


the falsification, if (I) the use was so connected in time with the
falsification, and (2) the user had the capacity of falsifying the
document

D. Sec. 258. Unlawful Pursuit of Business. - Any person who carries on any busi-
ness for which an annual registration fee is imposed without paying the tax (fee)
as required by law shall, upon conviction for each act or oruission, be punished by
a fine of not less than Five thousand pesos (PS,OOO.OO) but not more than Twenty
thousand pesos (p20,OOO) and suffer imprisonment ofnot less than six (6) months
but not more than two (2) years; Provided, that in the case of a person engaged in
the business of distilling, rectifying, repacking, compounding or manufacturing
any article subject to excise tax, he shall, upon conviction for each act or oruission,
be punished by confinement of not less than Thirty thousand pesos (P30,OOO) but
not more than Fifty thousand pesos (P50,OOO) and suffer imprisonment ofnot less
than two (2) years but not more than four (4) years.

1. Elements of Sec. 258:

a. A person, natural or juridical, carries on any business for which an annual


registration fee is imposed; and
b. Such person did not pay the required annual registration fee

2. Documentary Evidence Required:

a. SEC Certificate of Registration, Articles of Incorporation & By-Laws or


Articles of Partnership (in case of a corporation)
b. Corporate documents showing signature/participation in the conduct of
business
c. General Information Sheet showing the identity" of the corporate officers
as enumerated in Sec. 253 (d):
c.I. partner
c.Z. president
c.3. general manager
cA. treasurer
c.S. branch manager

Revised Manual for Prosecutors 249


--- - --

I c.6. treasurer
'1
:'~
"1J.
;;
,,c"
,::.:

I c.7. officer-in-charge
c.8. employees responsible for the violation
d. Deeds of Conveyance & Certification Authorizing Registration (in case of
-"\
·i'

;"
-~

I One Time Transaction [ONETT])


e. Contracts
f. Mayor's permit to show that business is in operation
I g. DTI registration (if sole proprietorship)
h. DTI or SEC records to show existence ofbusiness!operation
I. Proof of income received or documents to show source of income
I J. Any other documents showing participation! involvement ofother persons
in the commission of the offense
k. Certification form district, region, ITS that person conducting business is
I not a registered taxpayer or that no payment of annual registration fee has
been made

I l. Third Party Information


m. Proof of conduct of business
n. Ocular Inspection

I o. Certification from Collection and Enforcement Division


p. No official receipt registered with the BIR
6. Related Tax Code Provision: Sec: 236

I E. Sec. 267. Declaration under Penalties of Perjury. - Any declaration, return and
other statement required under this Code, shall in lieu of an oath, contain a writ-
I ten statement that they are made under the penalties of perjury. Any person who
willfully files a declaration, return or statement containing information which is
not true and correct as to every material matter shall, upon conviction, be subject
I to the penalties prescribed for perjury under the Revised Penal Code.

1. Elements of Sec. 267:


I a There is a declaration, return and other statement required under this

I Code, which, in lieu of an oath, contains a written statement that they are
made under the penalties of perjury;
b. Any person, natural or juridical, willfully files a declaration, return or
I statement containing information which is not true and correct; and
c. Such untrue or incorrect statement!s is!are a material matter/s

I 2. Documentary Evidence Required:

a. SEC Certificate of Registration, Articles of Incorporation & By-laws or


I Articles of Partnership (in case of a corporation)
b. General Information Sheet showing the identity of the corporate officers

I as enumerated in Sec. 253 (d):


b.I. partner

I, 250 Revised Manual for Prosecutors

- --
j
b.2. president
bJ. general manager
bA. treasurer

I
s.s, branch manager
b.6. treasurer
b.7. officer-in-charge

I
·~<.·· b.8. employees responsible for the violation
.-d;'
~.", c. Deeds of Conveyance & Certi:ficationAuthorizing Registration (in case of
..."
One Time Transaction [ONETT])
I I;~ d. Contracts
~~( e. DTI registration (if sole proprietorship)
,,·
»rr
~,;:.g~ f.
o
Tax Return

I..•"'-.
~-: ".
h.
I-
Proof of income
Certificate from district, region, ITS
Financial Statements

I. J. Third party Information

It r:
F. Sec. 236 (J), last pan- Securing More Than One TIN

Sec. 236.ll.egistrationRequirements. (J) Supplyinga 'TaxpayerIdentification


Number (TIN).- Any person required under the authority of this Code to make,
I render or file a return, statement or other document shall be supplied with or
assigned a Taxpayer Identification Number (TIN) which he shall indicate in such
return, statement or document filed with the Bureau of Internal Revenue for his
I proper identification for tax purposes, and which he shall indicate in certain docu-
ments, xxx

I xxx xxx xxx

Only one Taxpayer Identification Number (TIN) shall be assigned to a


I taxpayer. Any person who shall secure more than one Taxpayer Identification
Number shall be criminally liable under the provision of Sec. 275 on Violation of

I Other Provisions of this Code or Regulations in General.

Sec. 275. Violation ofOther Provisions a/this Code or Rules andRegulations


I in General. - Any person who violates any provision of this Code or any rule
or regulation promulgated by the Department of Finance, for which no specific
penalty is provided by law shall, upon conviction for each act or omission, be
I punished by a fine of not more than One thousand pesos (Pl ,000) or suffer im-
prisonment of not more than six (6) months, or both.

I 1. Elements of Sec. 236 (J):

I a. Any person, natural or juridical, is a registered taxpayer;

, b. Such person was assigned a TIN; and


c. Such person secured another TIN.

Revised Manual for Prosecutors 251

J
Ji,,":",
I
-::;;Jl
1
I
·~ b. Sec. 255. Failure to File Return, Supply Correct and Accurate
c.
~,~:
Information, Pay Tax, Withhold and Remit Tax and Refund Excess
Taxes Withheld on Compensation. - "Any person required under this
ii!' Code or by rules and regulations promulgated thereunder to pay any tax,
( :;':: make a return, keep any record, or supply correct and accurate informa-
tion, who willfully fails to pay such tax, make a such return, keep such

i record, or supply such correct and accurate informarion, or withhold or


remit taxes withheld, or refund excess taxes withheld on compensation;
at the time or times required by law or rules and regulations, shall xxx be

I.::.-
punished xxx"

c. Sec. 257. Penal Liability for Making False Entries, Records or

I ",,-.. -
Reports, or Using Falsified or Fake Accountable Forms

c.l. Willfully falsifies any report or statement bearing on any examina-


I tion or audit xxx

c.2. Willfully attempts in any manner to evade or defeat any tax imposed
I xxx'

B. Philippine Jurisprudence on Intent'Willfulness in Tax Cases


I 1. Supreme Court Decisions

I a. Aznar vs. eTA (GR No. L-20569, 23 August 1974,58 SCRA 519)

I a.1. While this is not a criminal case, the Supreme Court (SC) had an
opportunity to discuss what constitutes fraudulent intent. The
petitioner was questioning the assessment of deficiency tax and

I imposition of surcharge. There was a substantial difference found


between the amounts of net income on the face of the returns as
filed by petitioner in the years 1946 to 1951 and the net income as
I determined by the inventory method utilized by respondents for the
same years.

I a.2. The SC ruled:

"Such a basis [inventory method] for determining the existence


I offraud (intent to evade payment of tax) suffers from an inherent
flaw when applied to this case. x x x [I]t was not only Mr. Matias H.

I Aznar who committed mistakes in his report of his income but also
the respondent Commissioner of Internal Revenue who committed
mistakes in his use of the inventory method to determine the peti-
I tioner's tax liability. The mistakes committed by the Commissioner

,"-'-.' -.
of Internal Revenue which also involve very substantial amounts

Revised Manual for Prosecutors 253

I
~ - - -

,
------_._-

'
l
~,
I were also repeated yearly, and yet we cannot presume therefrom the
q.

,I existence of any taint of official fraud. I


From the above exposition of facts, we cannot but emphatically
!I reiterate the well established doctrine that fraud cannot be presumed
but must be proven. As a corollary thereto, we can also state that
fraudulent intent could not be deduced from mistakes however
II frequent they may be, especially if such mistakes emanate from
erroneous entries or erroneous classification of items in account-

I I
ing methods utilized for determination of tax liabilities. The pre-
decessor of the petitioner undoubtedly filed his income tax returns
I
I I
for the years 1946 to 1951 and those tax returns were prepared for
him by his accountant and employees. It also appears that petitioner I:
in his lifetime and during the investigation ofhis tax liabilities coop-
erated readily with the B.I.R. and there is no indication in the record
I I of any act of bad faith committed by him.

,I The lower court's conclusionregarding the existence offraudulent


intent to evade payment oftaxes was based merely on a presumption
and not on evidence establishing a willful filing of false and fraudu-

,I lent returns so as to warrant the imposition of the fraud penalty. The


fraud contemplated by law is actual and not constructive. It must be
intentional fraud, consisting of deception willfully and deliberately

I I
done or resoned to in order to induce another to give up some legal
right. Negligence, whether slight or gross, is not equivalent to the
fraud with intent to evade the tax contemplated by the law. It
must amount to intentional wrong-doing with the sole object of
I avoiding the tax. It necessarily follows that a mere mistake can-
not be considered as fraudulent intent, and if both petitioner and

I respondent Commissioner of Internal Revenue committed mistakes


in making entries in the returns and in the assessment, respectively,
under the inventory method of determining tax liability, it would
I I be unfair
. to treat the mistakes of the petitioner as tainted with fraud .
and those of the respondent as made in good faith." (Emphasis and

I I
underscoring supplied.)

b. Ungab vs. Cusi (GR No. L-41919-24, 30 May 1980)

I I
b.1. This is a criminal case for filing a fraudulent tax return, failure to
render a true and complete return and engaging in business without
first paying the annual fixed or privilege tax. However, the case did
I not discuss the guilt or innocence of the accused, but tackled the
authority of the prosecutor and the jurisdiction of the court.

II
I I
J
254 Revised Manual for Prosecutors

II J
L
b.2. The following are the relevant pronouncements of the SC on intent
and willfulness:

"The contention is made, and is here rejected, that an assessment


of the deficiency tax due is necessary before the taxpayer can be
prosecuted criminally for the charges preferred. The crime is com-
plete when the violator has, as in this case, knowingly and willfully

a filed fraudulent returns with intent to evade and defeat a part or all of
the tax." An assessment ofa deficiency is not necessary to a criminal
prosecution for willful attempt to defeat and evade the income tax.
'i A crime is complete when the violator has knowingly and willfully
filed a fraudulent return with intent to evade and defeat the tax. The
perpetration of the crime is grounded upon knowledge on the
I part of the taxpayer that he has made an inaccurate return, and
the government's failure to discover the error and promptly to as-
sess has no connections with the commission of the crime." (Citing
I
" ....
Merten's Law ofFederal Income Taxation, Vol. ll), Sec. 55A.05, p.
21. [Underscoring and emphasis suppliedj)

I c. CIR vs. Javier (GR No. 78953, 31 July 1991, 199 SCRA 824)

I c.I. Again, this is not acriminal case. The controversy basically revolves
around the assessment of deficiency tax and imposition ofsurcharge.
The taxpayer was the recipient of some money from abroad which
I he presumed to be a gift but the amount was actually erroneously
remirted to his account. In his income tax return, the taxpayer put
a footnote stating the above and the fact that the amount is now
I subject to litigation.

c.2. The SC cited the ruling in the Aznar case as regards fraud and
I held: "In the case at bar, there was no actual and intentional fraud
through willful and deliberate misleading of the government agency

! I concerned, the Bureau of Internal Revenue, headed by the herein


petitioner. The government was not induced to give up some legal
right and place itself at a disadvantage so as to prevent irs lawful

I agents from proper assessment of tax liabilities because Javier did


not conceal anything. Error or mistake of law is not fraud. The pe-
titioner's zealousness to collect taxes from the unearned windfall

I to Javier is highly commendable. Unfortunately, the imposition


of the fraud penalty in this case is not justified by the extant facts.

!I Javier may be guilty of swindling charges, perhaps even for greed


by spending most of the money he received, but the records lack a
clear showing of fraud committed because he did not conceal the
fact that he had received an amount of money although it was a
I "subject of litigation." (Emphasis and underscoring supplied.)

It: Revised Manual for Prosecutors 255

I
I d. CIR vs. CA (GR No. 119322,04 June 1996,257 SeRA 200)

I -d.l. A criminal case was filed against Fortune Tobacco ("Fortune") for
alleged fraudulent tax evasion for supposed non-payment of the cor-
rect amount of income tax, ad valorem tax and value-added tax for
I the year 1992. The fraudulent scheme allegedly adopted by Fortune
consisted ofmaking fictitious and simulated sales of Fortune's ciga-

I rette products to non-existing individuals and to entities incorporated


and existing only for the purpose ofsuch fictitious sales by declaring
registered wholesale prices with theBIR lower than Fortune's actual

I wholesale prices, which are required for determination of Fortune's


correct income and tax liabilities. Fortune sought the injunction of
the preliminary investigation.
I d.2. The SC held:

I "Willful" means "pre-meditated; malicious; done with


intent, or with bad motive or purpose, or with indifference to
the natural consequence x x x.' "Fraud" in its general sense, "is
I deemed to comprise anything calculated to deceive, including all
acts, omissions, and concealment involving a breach of legal or

I equitable duty, trust or confidence justly reposed, resulting in the


damage to another, or by which undue and unconscionable advan-
tage taken of another.

I Fraud cannot be presumed. If there was fraud or willful attempt


to evade payment ofad valorem taxes by private respondents through

I the manipulation of the registered wholesale price of cigarettes, it


must have been with the connivance of cooperation of certain BIR
officials and employees who supervised and monitored Fortune's
I production activities to see to it that the correct taxes were paid.
But there is no allegation, much less evidence, of BIR personnel's
malfeasance." (Emphasis supplied.)
I d.3. The SC further clarified the ruling in Ungab vs. Cusi, to wit:

I "In plain words, for criminal prosecution to proceed before as-


sessment, there must be a prima facie showing of a willful attempt

I to evade taxes. There was" a willful attempt to evade tax in Ungab


because ofthe taxpayer sfailure to declare in his income tax return
his income derived from banana saplings. In the mind of the trial
I court and the Court of Appeals, Fortune's situation is quite apart
factually since the registered wholesale price of the goods, ap-
proved by the BIR, is presumed to be the actual wholesale price,
I therefore, not fraudulent and unless and until the BIR has made a

I
; 256 Revised Manual for Prosecutors

I
final determination of what is supposed to be the correct taxes, the
taxpayer should not be placed in the crucible of criminal prosecu-
tion:" (Underscoring and emphasis supplied.)

2. Court of Tax Appeals (CTA) Decisions

a Pascual and Dragon vs. CIR (C.I.A. Case No. 3045, 29 December
1986)

a.l , The case focuses on the propriety of the assessment of deficiency


taxes and the imposition of surcharge and is not actually a criminal
case. Nonetheless, the CTAhad the opportunity to discuss what con-
stitutes willful neglect in the filing of returns and payment of taxes,
as follows:

"To our mind, there was willful neglect to file the corporate in-
come tax returns required by law on the part of petitioners because,
as borne out by the records, both petitioners Mariano P. Pascual and
Renato P. Dragon did not file separate individual income tax returns
for 1968 reporting their respective share of the profits realized by
them in said year from their real estate transactions. (p. 28, Bureau
of Internal Revenue records.) If petitioners did not even bother to
report their share of the profits derived by them from their buying
and selling transactions, why should they take the trouble of filing
corporate income tax return for their partnership? But assuming that
for the year 1968 petitioners were not yet aware that they are taxable
as an unregistered partnership subject to corporate income tax, they
could at least have filed their separate individual income tax returns
for this year. Ii seems clear therefore that there was intentional
wrongdoing with the object of avoiding the tax on the part of
petitioners." (Emphasis and underscoring supplied.)

b. Sevilla, Son. Ruben Tzu, Ben Tzu and Jerry Tzu vs. CIR (C.I.A. Case No.
6211,04 October 2004)

b.l. This is likewise not a criminal case and is actually a suit questioning
the assessment of deficiency capital gains tax. Deeds ofAssignment
of shares were compared with capital gains tax returns.

b.2. The CTA ruled:

"Clearly from the foregoing, there was an overstatement of the


acquisition cost in the sum ofP53,685,000.00 for which the capital
gains tax due thereon was not paid by the petitioners. Because ofthe
deliberate overstatement of the cost of acquisition of the subject

Revised Manual for Prosecutors 257


I shares of stocks by the petitioners, the tax base was lessened which

I ultimately led to a lower capital gains tax due. In other words, when
petitioners intentionally overstated the cost of acquisition of
the said shares in their capitai gains tax returns, they willfully

I evaded the payment ofcorrect taxes thereby denying or depriv-


ing the government the right to collect the exact taxes due from
petitioners' stock transactions. Furthermore, it is noteworthy that
I except for the objection that the Deeds ofAssignment were not best
evidence nor secondary evidence, petitioners failed to rebut the al-
I I legation of overstatement of the cost of acquisition in the capital
gains tax return. Petitioners during the investigation and during the
trial of the case did not present evidence to justify their declaration

I of the cost of acquisition in the capital gains tax returns filed with
the Bureau ofIntemal Revenue." (Emphasis and underscoring sup-
plied.)

I c. People vs. Mallari (C.T.A. Crim. Case Nos. A-I & A-2, 04 September
2006)
I c.l. This is a criminal case for failure to pay deficiency income tax and
value added tax.
I c.2. According to the CTA:

I "The Supreme Court had ruled that the word willful in a stat-
ute means 'not merely voluntary but with a bad purpose; in other
words, corruptly' and that a voluntary act is a free, intelligent, and
I intentional act.

I Having as premises the knowledge of the accused-appellant


that there are assessment notices issued against him (the existence
of which was admitted by the accused during the hearing held on

I December 7, 2000 32) which were proven to have been sent by reg-
istered mail (Exhibit "Y'); that he received the Warrant of Distraint
and Levy (Exhibit "K") and the Demand Letter (Exhibit "D") de-
I manding payment of the deficiency taxes stated in the assessment
notices; and the fact that he admitted that he ignored the demand
for payment ofthe deficiency taxes, there is no other conclusion that
I can be drawn except that the accused-appellant willfully did not
pay his deficiency tax liabilities. Furthermore, accused-appellant's

I admission that he paid P50,000 to two BIR Regional District Office


employees to settle his tax liabilities without asking for any receipt
reveals a conscious effort to evade his 1993 tax liabilities. The act

I of bribing the BIR employees constitutes an overt act on the


part of accused-appellant that showed his deliberate and willful

.I 258 Revised Manual for Prosecutors

I
refusal to pay his deficiency tax liabilities to the government. He
resorted to bribery instead of fulfilling his legal obligation of paying

.1:. '
his deficiency taxes." (Emphasis and underscoring supplied.)

3. Regional Trial Court (RTC) Decision

I
~; a. People vs. Imelda Marcos (Crim. Case Nos. Q-91-24382-83, 91-24388-
'<
89, and 91-24392, 20 April 2007)

f
' ' -:
a.I. Several criminal cases were filed against respondent for:

• Failure to pay income tax;

I~
• Failure to give a written notice of death:
• Failure to pay estate taxes;

I
• Failure to file income and estate tax returns

a.2. The court took judicial notice of the fact that the Marcoses were
forcibly evicted from the country and brought to Hawaii in 1986,
I' leaving most of their personal and real properties under the posses-
sion and control of the government.
',
I ->
,'-.:-.-
a.3.The RTC held:

"As the defense contended, the Marcoses were totally isolated


I- from the rest of the world. They were not afforded means of com-
munication and transportation and were not allowed to receive visi-
tors. Thus, it was really impossiblefor the accused to have complied
I with the requirement offiling and paying any ofher tax obligations.

.'I
Likewise, even though she wanted to do so, their sudden departure
from the country prevented the accused from bringing her personal
record and documents with which she could assess or determine
her income for the year 1985 to prepare her income tax rerum...
Consequently, failing on the part of the prosecution to substanti-
ate through competent evidence that accused Mrs. Imelda Marcos
willfully, unlawfully and feloniously neglected to file and pay [an]
I income tax return for [the] year 1985, she could not be held crimi-
nally liable.

I The Court finds merit in the argument that the failure on the part
of the accused to file the estate tax return and to pay the estate tax
is not willful. Although accused may have failed to comply with
I what is required by law, accused should be exempted from criminal
liability as she was prevented to do so due to an insuperable cause

I
,:
made by no less than the government, i.e., as early as February 1986,
accused and her family were forcibly placed on exile in Honolulu,

,'0- Revised Manual for Prosecutors 259

I
~::
-------------------------- . ----

I
Hawaii until November 1991, when they returned to the country; the

I properties of President Marcos were sequestered and placed under


the control and possession of the government after which forfeiture
proceedings were filed before the Sandiganbayan Court.
I True, as pointed out by the defense, why would the government
require accused to comply with her obligations when it had taken
I away the very means by which she could comply with the require-
ments of the law? Logically, a legal heir who does not possess a
knowledge or information regarding the total value of the estate of
I the decedent would not dare execute a return "under oath" under
pain of criminal liability. In the same manner, it is error to expect

I that accused would pay the tax due on the estate of her late husband
during the alleged time under which she was made to pay when she
had no records in her possession and control with which she could

I assess the gross value of the late president at the time of his death
and the deductions allowed from the gross estate to determine the
estate tax liability.
I On the whole, underscoring the finding ofthe Court that accused's
failure to comply with her tax obligation was due to causes beyond
I her control, there is no doubt that the element of "willfulness" for
crimes involving the violation of the National Internal Revenue
Code, as alleged in the Information in these five (5) criminal com-
I plaints, is lacking. In short, the prosecution's evidence did not pass
the test of moral certainty that there was "willful disobedience" on
f
I
I

I the part of the accused with the intention to evade and defeat the
tax." (Underscoring supplied.) I
f
I C. Challenges in Proving Intent and Willfulness in Tax Cases

1. Willfulness is a state of mind

I 2. Willfulness is determined by a subjective standard

I 3. "The element of willfulness is often the most difficult element to prove in an


evasion case. Absent an admission or confession, which is seldom available,
or accomplice testimony, willfulness is rarely subject to direct proof and
I must generally be inferred from the defendant's acts or conduct." [U.S.
Criminal Tax Manual 8.06[2]]

I
I
I 260 Revised Manual for Prosecutors

!I
;
D. Proof of Willfulness in U.S. Jurisprudence
1,
1. Proof of Willfulness - Failure to File Returns [US Criminal Tax Manual
10.04{5] {aJ]'

a. Willfulness is suggested by a pattern of failing to file for consecutive years


in which returns should have been filed. United States v. Greenlee, 517
F2d 899,903 (3d Cir: 1975). This may include years prior or subsequent
to the prosecution period. United States v. Upton, 799 F2d 432, 433 (8th
Cir. 1986); United States v. Farris, 517 F2d 226,229 (7th Cir. 1975).

b. Willfulness may be shown by disregarding IRS warning letters, and filing


contradictory forms. United States v. Shivers, 788 F2d 1046, 1048 (5th
Cir. 1986)

c. There is also an element of common sense in establishing willfulness in a


failure to file case.

d. Thus, willfulness can be shown by such factors as: the background of the
defendant; the filing of returns in prior years, United States v. Briscoe,
65 F3d 576, 588 (7th Cir. 1995); United States v. Hauert, 40 F3d 197,
199 (7th Cir: 1994); United States v. Birkenstock, 823 F2d 1026, 1028
(7th Cir: 1987); United States v. Bohrer. 807 F2d 159, 161 (10th Cir.
1986) United States v. Shivers, 788 F2d 1046, 1048 (5th Cir. 1986); that
the defendant was a college graduate with accounting knowledge; that
the defendant was familiar with books and records and operated a busi-
ness, United States v. Segal, 867 F2d 1173, 1179 (8th Cir. 1989); that the
defendant earned a large gross income, Bohrer. 807 F2d at 161. See also
United States v. Macl.eod, 436 F2d947, 949 (8th Cir: 1971) United States
v. Ostendorff, 371 F2d 729, 731 (4th Cir: 1967).

e. Evidence that a defendant had filed returns in other years when he claimed
refunds while there was a substantial tax due for the years he failed to
file is relevant evidence and more than enough to establish willfulness.
Garguilo, 554 F2d at 62.

2. Proof of Willfulness - Attempt to Evade or Defeat Tax [US Criminal Tax


ManuaI8.06[2}}

a. In the leading case of Spies v. United States, 317 Us. 492, 499 (1943), the
Supreme Court, "by way of illustration and not by way oflimitation," set
forth the following as examples of conduct from which willfulness may
be inferred:

Revised Manual for Prosecutors 261


I "[K]eeping a double set of books, making false entries or alterations,
or false invoices or documents, destruction of books or records, conceal-
I ment of assets or covering up sources of income, handling of one's affairs
to avoid making the records usual in transactions of the kind, and any
conduct, the likely effect of which would be to mislead or to conceal."
I b. Examples of Proof ofWillfulness - Attempt to Evade or Defeat Tax

I b.l. Willfulness may be inferred from evidence of a consistent pattern of


underreporring large amounts of income.

I United States v. Kim, 884 F2d 189, 192 (5th Cir. 1989) (evi-
dence of willfulness was sufficient where taxpayer failed to report
I
"

$182,601 of income over three years); United States v. Kryzske,


836 F2d 1013, 1019·20 (6th Cir. 1988) (willfulness found where
taxpayer failed to file complete tax returns over a four-year period
I and underreportedhis income by $940.50 for one of those years);
United States v. Guidry, 199 F3d 1150,1157 (10th Cir: 1999); see
also United States v. Klausner, 80 F3d 55,63 (2d Cir: 1996); United
I States v. Skalicky, 615 F2d 1117 (5th Or. 1980); United States v.
Larson, 612 F2d 1301 (8th Cir. 1980); United States v. Gardner,

I 611 F2d 770 (9th Or. 1980)

b.Z, Failure to supply an accountant with accurate and complete infor-

I mation.

United States v. Samara, 643 F2d 701, 703 (lOth Cir. 1981)
I (taxpayer kept receipt books for cash received but did not supply
them to accountant, thus concealing cash receipts); see also United
States v. Guidry, 199 F3d 1150,1157 (10thCir.l999); United States
I v. Brimberry, 961 F2d 1286, 1290 (7th Cir 1992); United States
v. Chesson, 933 F2d 298, 305 (5th Cir: 1991); United States v.
Michaud, 860 F2d 495,500 (I st Cir. 1988); United States v. Meyer,
I 808 F2d 1304, 1306 (8th Cir. 1987); United States v. Ashfield, 735
F2d 101, 107 (3d Cir. 1984); United States v. Conforte, 624 F2d
869 (9th Cir 1980); United States v. Scher, 476 F2d 319 (7th Cir.
I 1973).

I b.3. Taxpayer who relies on others to keep his records and prepare his
tax returns may not withhold information from those persons rela-
tive to taxable events and then escape criminal responsibility for the

I resulting false returns.

I
II 262

I
i Revised Manual for Prosecutors

il
I
UnitedStatesv. Simonelli, 237 F3d 19,30 (lstCir. 2001); United
States v. O'Keefe, 825 F2d 314, 318 (11th Cir. 1987); United States
v. Garavaglia, 566 F2d 1056 (6th Cir: 1977).

bA. False statements to agents; false exculpatory statements, whether


made by a defendant or instigated by him.

United States v. Chesson, 933 F2d 298, 304 (5th Cin 1991);
United States v. Frederickson, 846 F2d 517, 520-21 (8th Cir: 1988)
(taxpayer falsely stated that she did not receive income from other
employees who worked in her massage parlor and that she deposited
i{ most of her income in the bank); United States v. Walsh, 627 F2d

t 88 (7th Cir: 1980); United States ". Tager, 481 F2d 97, 100 (lOth
Cir. 1973); United States v. Callanan; 450 F2d 145, 150 (4th Cir.

i: 1971); United States v. Jett, 352 F2d 179, 182 (6th Cir. 1965); see
also United States v. Klausner, 80 F3d 55, 63 (2dCir. 1996); United
States v. Pistante, 453 F2d 412 (9th Cir. 1971); United States v.

f Adonis, 221 F2d 717,719 (3d Cir: 1955).

b.5. Keeping a double set of books. United States v. Daniels, 617 F2d

i 146 (5th Cir: 1980).

b.6. Hiding, destroying, throwing away, or "losing" books and records.

i
»
United States v. Walker, 896 F2d 295, 300 (8th Cir: 1990) (tax-
payers hid records and assets in an attempt to conceal them from

I ,~.
the IRS). See United States v. Chesson, 933 F2d 298, 304-05 (5th
Cir: 1991) (taxpayer altered and destroyed invoices after undergoing
a civil audit for underreporting income); United States v. Pistante,
j 453 F2d 412 (9th Cir. 1971); United Stares v. Holovachka. 314 F2d
345, 357 (7th Cir. 1963); Gariepy v. United States, 189 F2d 459,
463 (6th Cir. 1951).
I
-r
b.7. Making or using false documents, false entries in books and records,
false invoices, and the like.
I UnitedStatesv. Wilson, 118F3d 228,236 (4th Cir. 1997); United
States v. Chesson, 933 F2d 298, 304 (5th Cir. 1991); United States
I v. Walker, 896 F2d 295, 298 (8th Cir: 1990) (defendants submitted
false invoices to their family company so that the company would

I treat their personal expenses as business expenses).

I
II
:
Revised Manual for Prosecutors 263

I
b.S. Destruction of invoices to customers. United States v. Garavaglia, 566 F2d
1056, 1059 (6th Cir. 1977).

b.9. Nominees - Placing property or a business in the name of another.

United States v. Daniel, 956 F2d 540 (6th Cir. 1992); United States v.
Peterson, 338 F2d 595,597 (7th Cir. 1964); United States v. Woodner; 317
F2d 649,651 (2d Cir. 1963); Banks v. United States, 204 F2d 666,672 (8th
Cir. 1953), vacated and remanded, 348 u.s.
905 (1955), reaff''d, 223 F2d
884 (8th Cir. 1955).

b.1O. Extensive use of currency or cashier's checks.

I
I
United States v. Daniel, 956 F2d 540 (6th Cir. 1992) (defendant used
cash extensively, immediately converted checks to cash, and paid employ-

a
I
ees and insurance policies in cash); United States v. Holovachka, 314 F2d
345,358 (7th Cir. 1963); Schuermann v. United States, 174F2d 397, 398
(8th Cir. 1949).

I b.ll. Spending large amounts of cash which could not be reconciled with the
amount of income reported.

I United States v. Simonelli, 237 F3d 19,30 (1st Cir. 2001); United States
v. Olbres, 61 F3d 967,971 (1st Cir. 1995); United States v. Kim, 884 F2d

I 189, 192 (5th Cir. 1989); or engaging in surreptitious cash transactions,


United States v. Skalicky, 615 F2d 1117 (5th Cir. 1980). See also United
States v. Holladay, 566 F2d 1018, 1020 (5th Cir. 1978) United States v.
I Mortimer; 343 F2d 500, 503 (7th Cir. 1965) (money orders and cashier's
checks).

I b.12. Use of bank accounts held under fictitious names. United States v. Ratner,
464 F2d 101, 105 (9th Cir. 1972); Elwert v. United States, 231 F2d 928
(9th Cir. 1956); cf United States v. White, 417 F2d 89,92 (2d Cir. 1969).
I b.l S, Checks cashed and the currency deposited in an out-of-town bank account.

I United States v. White, 417 F2d 89,92 (2d Cir. 1969).

b.14. Unorthodox accounting practices with deceptive results. United States v.

I Slutsky, 487 F2d 832. 834 (2d Cir: 1973); United States v. Waller, 468 F2d
327,329 (5th Cir. 1972).

'I
I
I 264 Revised Manual for Prosecutors

II
b.15. Repetitious omissions ofitems of income, e.g., income from various sources
not reported.

United States v. Walker, 896 F2d 295,299 (8th Cir. 1990) (over a two-
year period taxpayer failed to report interest· income totaling $20,476);
UnitedStatesv. Tager: 479 F2d 120,122 (10th Cir. 1973); Sherwin v. United
- States, 320 F2d 137, 141 (9th Cir. 1963).
I
-"r' b.16. Prior and subseauent similar acts reasonably close to the prosecution
years.
I United States v. Middleton, 246 F3d 825, 836-837 (6th Cir. 2001);
Matthews v. United States, 407 F2d 1371, 1381 (5th Cir. 1969); United
I States v. Johnson, 386 F2d 630 (3d Cir. 1967); United States v. Magnus,
365 F2d 1007 (2d Cir. 1966); United States v. Alker, 260 F2d 135 (3d Cir.

I 1958); cf Fed. R. Evid. Rule 404(b).

b.17. Alias used on gambling trip -- relevant to an intent to evade taxes. United

I States v. Catalano, 491 F2d 268,273 (2d Cir. 1974).

b.18. The defendant's attitude toward the reporting and payment of taxes gener-
I ally.

United States v. Hogan, 861 F2d 312 (1st Cir: 1988); United States v.
I Stein, 437 F2d 775 (7th Cir. 1971); United States v. O'Connor, 433 F2d
752,754 (lst Cir: 1970); United States v. Taylor: 305 F2d 183,185 (4th Cir.
1962);
I b.l9. Background and experience of defendant. General educational background

I and experience of defendant can be considered as bearing on defendant's


ability to form willful intent.

I United States v. Guidry, 199 F3d 1150, 1157-1158 (10th Cir.1999)


(willfulness inferred from defendant's expertise in accounting via her busi-
ness degree and her work experience as comptroller of a company); United
I States v. Klausner: 80F3d 55, 63 (2d Cir. 1996) (defendant's background as
a CPA, and extensive business experience including that as a professional
tax preparer); United States v. Smith, 890 F2d 711, 715 (5th Cir. 1989) (de-
I fendant's background as an entrepreneur probative of willfulness); United
States v. Segal, 867 F2d 1173, 1179 (8th Cir. 1989) (defendant was a suc-
cessful and sophisticated businessman); United States v. Rischard, 471 F2d
I 105,108 (8th Cir. 1973);. See United Statesv. Diamond, 788 F2d 1025 (4th
Cir: 1986); United States v. MacKenzie, 777 F2d 811, 818 (2d Cir. 1985)

I (willfulness inferred from the fact that each defendant had a college degree,
one in economics and the other in business).

I Revised Manual for Prosecutors 265

I
-r..:.
I b.20. Offer to bribe government agent. Barcott v. United States, 169 F2d 929,

I 931-32 (9th Cir. 1948) (attempt to bribe revenue agent).

b.21. Use 'of false names and surreptitious reliance on the use of cash. United

I States v. Walsh, 627 F2d 88, 92 (7th Cir: 1980); United States v. Holladay,
566F2d 1018.1020 (5th Cir. 1978).

I b.22. Backdating documents, such as receipts, contracts, and the like, to gain a
tax advantage. United States v. Drape, 668 F2d 22 (lst Cir. 1982); United
States v. Crum, 529 F2d 1380 (9th Clr. 1976); United States v. 0 'Keefe, 825
I F2d 314 (lith Cir. 1987).

b.23. Illegal sources of income. United States v. Palmer, 809 F2d 1504,1505-06
I (lith Cir: 1987) (sale of narcotics).

I
I
I
I
I
I
I
. ,,
I
I
I
I ,
'i

I 266 Revised Manual for Prosecutors

:1
V. TEMPLATES OF TRIAL BRIEFS

A. SEC. 254. ATTEMPT TO EVADE OR DEFEAT TA,"'(

[ ] Caption

[] Information Sheet (names, addresses and telephone numbers of the investigators, parties,
court)

[] Theory of the Case for the Prosecution

[ ] Theory of the Case for the Defense

[] Issues

[] Stipulations

[J Admissions

[] Elements

[ ] A tax imposed under the Tax Code

[] Evidence:

Revised Manual for Prosecutors 267


I [ ] Source of evidence: _

I [] A person, natural or juridical, is liable to that tax

I [] Evidence:

I [] Source of evidence:

II [ ] Such person willfully attempts in any manner to evade or defeat any tax imposed
under the NIRC or the payment thereof
,I [ ] Evidence:

I [] Source of evidence:

I [ ] Probable proof of opponent

[ ] Facts to be proven:
I [] Evidence:

I [] Source of evidence:

[ ] Facts to be proven:
I [] Evidence:

I [] Source of evidence:

I I [] Facts to be proven:

[] Evidence:
I [] Source of evidence:

I [] Witnesses

[] Witness name:
I I
I
I
;
268 Revised Manual for Prosecutors

I
,
[] Personal background: _

j.
I~ [] Outline of testimony:

I
~
,

i [] Comment:

I [] Witness name:

I
~
[] Personal background: ~_ _

I [J Outline of testimony: _

I
I [J Comment: _

I [] Witness name: _

I [] Personal background: _

[ ] Outline of testimony: _

I
I
[] Comment: _
I
I
I
-II
r
Revised Manual for Prosecutors 269
---- ---- --- ----

f
I
[ ] Documentary exhibits
I [ ] SEC Certificate ofRegistration, Articles of Incorporation & By-Laws or Articles of
Partnership (in case of a corporation)
I [] Corporate documents showing signature/participation in the conduct of business

I [] General Information sheet showing the identity ofthe corporate officers as enumer-
ated in Sec. 253 (d)

I [] Tax Return of the taxpayer

I [] BIR registration (Integrated Tax System [ITS]/RDO certification) to show that the
person is a registered taxpayer

I [] Deeds of Conveyance & Certificate Authorizing Registration (in case of One-Time


Transaction [ONETT])
[ ] Contracts
I [] Mayor's Permit

I [ ] DTI registration (if sole proprietorship)

[]
I []
Proof of income received or documents to show source of income

Any other documents showing participation/involvement of other persons in the

I commission of the offense

[] Third Party Certification (original or if unavailable, certified true copy)


I [ ] Certification from the district, region or ITS showing existence or non-existence of
return
I [] Fraudulent Scheme:

I [] In case of ONEIT, 2 or more Deeds of Conveyance

[ ] Using a dummy/ies
I [] Using fake Certificate Authorizing Registration (CAR) to commit Tax

I Evasion

I
~ 270 Revised Manual for Prosecutors

I
I
I [] Badges ofFraud:

[ ] intentional and substantial understatement of taxable income as shown in


the returns, financial statements, balance sheet, or deeds of conveyance

I
B'_
[ ]
showing receipt of income (underdeclaration of income);

intentional and substantial overstatement (over-claiming) of deductions or


I exemptions as shown in returns, financial statements, balance sheets, in-
voices;

I [ ] any act or recurrence of the foregoing or similar circumstances (Vitug, cit-


ing Collector vs. Reyes);

I [ ] recurrence offailure to perform legal obligation, i.e., obligation to file return,


pay tax, withhold tax, remit tax, supply correct and accurate information,

I refund excess taxes withheld on compensation;

making it appear that one has filed a return or actually filing a return and
I subsequently withdraws the same after securing the official receiving seal
or stamp;

I [] securing or use of multiple or different TIN;

[ ] in case of ONET, price/consideration in the deed inconsistent with returnor


I the CAR, use of falsified CAR to transfer property;

[ ] other schemes to prove intent to evade tax;


I [ ] computation showing substantial under-declaration or substantial overstate-

I ment;

[ ] Applicable laws and jurisprudence

I
I
I
I
I
,I
J Revised Manual for Prosecutors 271

I
I- ],,
[ ] Other important points to consider:

I
I
I
I B. SEC. 255. FAILURE TO FILE RETURN, SUPPLY CORRECT AND
ACCURATE INFORMATION, PAY TAXWITHHOLD AND REMIT TAX
I

I Aj~D REFUND EXCESS TA,XES WITHHELD ON COMPENSATION

[ ] Caption
I
[ ] Information Sheet (names, addresses and telephone numbers of the investigators, parties,
I court)

I
I [ ] Theory of the Case for the Prosecution

I
[ ] Theory of the Case for the Defense

I
I [ ] Issues

I -j
I
[] Stipulations ,i

I J

I 1
1

I i
j
1
,
~J

I
~j

j
272 Revised Manual for Prosecutors

,
J
I
[] Admissions

-';"'
Ii [J Elements

I :'.
" [] A person is required under the Tax Code, or by rules and regulations, to pay any tax,
make a return, keep any record, or supply correct and accurate information

i .[] Evidence: _

l' [ ]

[ ]
Source of evidence:

At the time or times required by law or rules and regulations


_

i
,,""

[ ] Evidence:
------------------------

•I
~ [ ]

[ ]
Source of evidence:

Such person willfully fails to make such return, keep such record, or supply such
correct and accurate information, or withhold or remit taxes withheld, or refund
excess taxes withheld on compensation
_

I [ ] Evidence: _

[ ] Source of evidence:
---------------------
I [ ] As a result, such person failed to pay the correct tax

I [ ] Evidence: _

I [ ] Source of evidence: _

[] Probable proof of opponent


I [] Facts to be proven:

I [] Evidence:

[] Source of evidence:
I [ ] Facts to be proven:

I [] Evidence:

-il
r- Revised Manual for Prosecutors 273
I-
I
[ ] Source of evidence:
"
•.
.~~~":
i,,
p
',~

u
.:':10
[] Facts to be proven:
J
I [ ] Evidence: >j
:tf

[] Source of evidence:
I [ ] Witnesses
':'
~'

"

I [] Witness name:
j
I [] Personal background:

[] Outline of testimony:

I
I
I
I [] Comment:

I [ ] Witness name:

[]
I Personal background:

[ ] Outline of testimony:

I
I
I [] Comment:

[] Witness name:
I [ ] Personal background:

I [] Outline of testimony:

I
I,
I
274 Revised Manual for Prosecutors

11
I
- I'

i []
[] Comment:

Documentary exhibits
-'--------------------

I [ ] SEC Certificate of Registration, Articles of Incorporation & By-Laws or Articles of


Partnership (in case of a corporation)

I [ ] Corporate documents showing signature/participation in the conduct of business

I [] General Information sheet showing the identity ofthe corporate officers as enumer-
ated in Sec. 253 (d)

I [] Tax Return of the taxpayer

[1 BIR regisrration (Integrated Tax System [ITS]/RDO certification) to show that the

I person is a registered taxpayer

[] Deeds of Conveyance & Certificate Authorizing Registration (in case of One-Time


I Transaction [ONETT])

[J Contracts
I c 1
l " Mayor's Permit

I [] DTI registration (if sole proprietorship)

[]
I Proof of income received or documents to show source of income

[J Any other documents showing participation/involvement of other persons in the

I commission of the offense

[] Notice of Informal Conference


I [ ] PAN

I [] Formal Letter of Demand & FAN

[] Pro-forma Protest, if there's any


I [] Certification from Collection and Enforcement Division (CED) of no payment

I [] Tax Return

I [] Third Party Information (certification) to show income

[ ] Other proof that income is received


Ii
Revised Manual for Prosecutors 275

:1
I
[J First/Second / Final Request for Presentation of books of accounts / accounting
I records

[J RDO Certriic~tion of no return filed


II [J Certificate of creditable withholding tax

I [J Certification from Government Agencies and/or private entities to show income

I [J Financial Statements

Alpha List from district, Withholding Tax Division or Large Taxpayer Service

I [J Computation of Tax Liability

I [ ] Applicable laws and jurisprudence

I
I [] Other important points to consider:

I
I
I C. SEC. 257 (B)(8) - KNOWINGLY USES FAKE CERTIFICATE AUTHORIZING
REGISTRATION
I [] Caption

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[] Information Sheet (names, addresses and telephone numbers of the investigators, parties,
I court)

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[ ] Theory of the Case for the Prosecution
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i
276 Revised Manual for Prosecutors

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[]
Theory of the Case for the Defense

Issues
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Ii [ ] Stipulations

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I [] Admissions

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i [J Elements

[J Any person, natural or juridical

I [J Evidence:

I [ ] Source of evidence:

I
I [ ] He knowingly uses fake or falsified revenue official receipts, Letters ofAuthority,
certificates authorizing registration, Tax Credit Certificates, Tax Debit Memoranda
I and other accountable forms

[] Evidence:
I
[ ] Source of evidence:
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I [J Probable proof of opponent

[J Facts to be proven: _

I [ ] Evidence:

I ~
Revised Manual for Prosecutors 277

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[] Source of evidence:
I ,
[] Facts to be proven:
I
I [] Evidence:

I [] Source of evidence:

I [] Facts to be proven:

I [] Evidence:

I [ ] Source of evidence:

I [] Witnesses

I [] Witness name:

I [] Personal background:

I [ ] Outline of testimony:

I
I [ ] Comment:

I [ ] Witness name:

I [ ] Personal background:

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