REMEDIAL LAW, XPN: BP. 22 cases, wherein the amount of the filing fees shall be equivalent to the amount of the check involved 2. Liquidated, moral, nominal, temperate or exemplary damages - The filing fee shall be based on the amount alleged in the complaint or information. (Sec. 14], Rule 111) NOTE: If the amount of the damages claimed is not specifically alleged in the complaint or information, but the court subsequently awards such, the filing fees based on the amount awarded shall constitute a first lien on the judgment. (Sec. 1[3], Rule 111) PRELIMINARY INVESTIGATION RULE 112 NATURE OF RIGHT Preliminary Investigation It is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof and should be held for trial, (Sec. 1, Rule 112) It is merely inquisitorial and a means of determining the persons who may be reasonably charged with a crime. (Herrera, 2007) It is not, therefore, a trial and so does not involve the examination of witnesses by way of direct or cross- examinations. Its purpose is not to declare the respondent guilty beyond reasonable doubt, but only to determine first, whether or not a crime has been committed and second, whether or not the respondent is “probably guilty” of the crime, The question to be answered in a preliminary investigation is not: "Is the respondent guilty or is he innocent?” More accurately, the question sought to be answered i “Is the respondent probably guilty and therefore, should go to trial?” (Riano, 2016) NOTE: It is not part of the trial of the criminal action in court. Nor is its record part of the records of the case in the RTC. The dismissal of the case by the investigator will not bar the filing of another complaint for the same offense, but if re-filed, the accused is entitled to investigation. (US v. Marfori, December 9, 1916) another preliminary GR. No. 10905, Right to a Preliminary Inves ‘The holding of a preliminary investigation is not required by the Constitution, The right thereto is of a statutory character and may be invoked only when specifically created by statute. (Marinas ¥. Siochi, .R. No. L-25707, May 14, 1981) While that right is statutory rather than constitutional in its fundament, since it has in fact been established by statute, it is a component part of due process in criminal justice. The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; itis a substantive right. The accused in a criminal trial is inevitably exposed to prolonged anxiety, aggravation, humiliation, not to speak of expense; the right to an opportunity to avoid a process painful to any one save, perhaps, to hardened criminals, is a valuable right. To deny petitioner's claim to a preliminary investigation would be to deprive him the full measure of his right to due process. (Go v. Court of Appeals, G.R. No. 101837 February 11, 1992) Waiver of the ri ¢ to preliminary investigation It shall be deemed waived by: 1. Express waiver or by silence (Herrera, 2007); 2. Failure to invoke it during arraignment (People v. De Asis, GR No. 105581, December 7, 1993); 3. Consenting to be arraigned and entering a plea of not guilty without invoking the right to preliminary investigation (People v, Bulosan, G.R. No. 58404, April 15, 1988); 4, Failure to request for it within 5 days from the time he learns of the filing of the complaint or information, in those instances where the accused is lawfully arrested without a warrant, (Sec. 6, Rule 112) NOTE: The waiver, whether express or implied, must be in a clear and unequivocal manner, (Herrera, 2007) When preliminary investigation is required UNIVERSITY OF SANTO TOMAS 2021 GoLneN Noss 420CRIMINAL PROCEDURE GR: Before the filing of a complaint or information for an offense where the penalty prescribed by law is imprisonment of at least 4 years, 2 months and 1 day without regard to the imposable fine. (Sec. 1, Rule 112) XPNs: Where an information or complaint is filed pursuant to Sec. 7, Rule 112, ce the complaint or information is filed directly in court (Ibid; or 2 For cases requiring preliminary investigation, when a person is lawfully arrested without a warrant provided that inquest was made in accordance with Rule 112. (See. 6 Rule 112) Rights_of the respondent in_a_preliminary investigation Preliminary investigation is not part of trial and is conducted only to establish whether probable cause exists, Consequently, it is not subject to the same due process requirements that must be present during trial. Thus, a person's rights during preliminary investigation are limited to those provided by procedural law. (Reyes v. Office of the Ombudsman, G.R. No. 208243, June 5, 2017, as penned by J. Leonen) 1. To examine the evidence submitted by the complainant at his own expense; NOTE: Object evidence need not to be furnished, but is available for examination, copying or photographing at the expense of the requesting party. (Sec. 3{b], Rule 112) While a respondent under preliminary investigation has the right to examine the evidence submitted by the complainant, he or she does not have a similar right over the evidence submitted by his or her co- respondents. (Reyes v. Office of the Ombudsman, Ibid.) 2. To submit a counter affidavit (Sec. 3{c}, Rule 112); and NOTE: The prosecutor is not mandated to require the submission of counter= affidavits, Probable cause may then be determined on the basis alone of the affidavits and supporting documents of the complainant, without infringing on the constitutional rights of the petitioners. (Borlongan, Jf. v. Pena, GR. No. 143591, November 23, 2007) 3. To be present during the clarificatory hearing, (Sec. 3[e), Rule 112); NOTE: While the parties can be present at the hearing, they are without the right to examine or cross-examine, They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned. PURPOSES OF PRELIMINARY INVESTIGATION 1. For the investigating prosecutor to determine if the crime has been committed; 2 To protect the accused _—_ from inconvenience, expense and burden of defending himself in a formal trial unless probability of his guilt is first ascertained by a competent officer; 3. To secure the innocent against hasty, ‘malicious, and oppressive prosecution and to protect him from an open and public accusation of a crime and anxiety of a public trial; 4. To protect the State from having to conduct useless and expensive trial; and 5. To determine the amount of bail, if the offense is bailable. (Herrera, 2007) WHO MAY CONDUCT DETERMINATION OF EXISTENCE OF PROBABLE CAUSE. Probable cause in preliminary investigation It is the existence of such facts and circumstances as would excite belief in a reasonable mind, acting, on the facts within the knowledge of the prosecutor, that the person charged was prosecuted. A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt. (Sps, Balangauan v. CA, GR. No, 174350, August 13, 2008) NOTE: The evidence needed is not based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt, and definitely not on evidence establishing absolute certainty of guilt. It needs only to rest on evidence showing that more likely than not a crime has been committed by the accused. (People vs Borje, G.R. No. 170046, December 10, 2014) Instances when established robable cause needs to be 421 UNIVERSITY OF SANTO TOMAS FAcuLty oF CiviL Law @REMEDIAL LAW, It is not only in preliminary investigation that probable cause needs to be determined. There are other instances provided under the rules where probable cause needs to be established: 1. When issuing a warrant of arrest or a commitment order (Secs. 5 and 8, Rule 112); 2. Apeace officer or a private person making a warrantless arrest when an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it (See 5{b], Rule 113); and 3. To determine whether a search warrant shall be issued. (Sec 4, Rule 126) Persons authorized to conduct a preliminary investigation 1. Provincial or city prosecutors and their assistants; 2. National and Regional State Prosecutors; and 3. Other officers as may be authorized by law, such as: a, Ombudsman; . COMELEC; PCGG, with the assistance of the OSG; and d And other government agencies, empowered to investigate, file and prosecute cases investigated by it. NOTE: Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper court in their respective territorial jurisdiction. (Sec. 2, Rule 112) Judges of first level courts are no longer authorized to conduct preliminary investigation. (A.M, No. 05- 8-26-SC, effective October 3, 2005) Court interference _in preliminary investigation GR: The courts cannot interfere in the conduct of preliminary investigations, leaving the investigatory officers sufficient discretion to determine probable cause. the conduct of XPN: When the acts of the officer are without or in excess of authority resulting from a grave abuse of discretion, (Sps. Balangauan v. CA, GR. No. 174350, August 13, 2008) Extent of authority of the Ombudsman in the conduct of preliminary investigation The Ombudsman has primary authority to investigate and exclusive authority to file and prosecute Sandiganbayan cases. (Ledesma v. CA, GR. No, 161629, July 29, 2005) ‘The Ombudsman is authorized to take over at any stage, from any investigatory agency of the government, the investigation of such cases. (Sec. 15, RA6770) NOTE: The power to investigate and to prosecute granted to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by the regular courts. (Office of the Ombudsman v. Breva, GR. No, 145938, February 10, 2006) ‘As an independent constitutional body, the Office of the Ombudsman is beholden to no one, acts as the champion of the people and is the preserver of the integrity of the public service. Thus, it has the sole power to determine whether there is probable cause to warrant the filing of a criminal case against an accused. This function is executive in nature, (Dichaves v. Ombudsman, G.R. No. 206310, December 7, 2016, as penned by J. Leonen) Generally, the Supreme Court will not interfere with the Office of the Ombudsman's determination of probable cause, unless there is a clear and convincing showing of grave abuse of discretion. (Binay v. Office of the Ombudsman, G.R. No. 213957- 58, August 07, 2019, as penned by J. Leonen) NOTE: This, however, does not include administrative cases of court personnel because the 1987 Constitution vests in the $C administrative supervision over all courts and court personnel. Preliminary investigation in election cases ‘The Commission on Elections is vested the power to conduct preliminary investigations; it may deputize other prosecuting arms of the government to conduct preliminary investigation and prosecute offenses. (People v. Basilla, GR. No. 83938-40, November 6, 1989) ‘The Commission on Elections has exclusive power to conduct preliminary investigation of all election offenses punishable under the election laws and to UNIVERSITY OF SANTO ToMAS 2021 GoLnEN Noes 422CRIMINAL PROCEDURE prosecute the same, except as may otherwise be provided by law. The Commission on Elections exercises constitutional authority to investigate and, where appropriate, prosecute cases for violation of election laws, including acts or ‘omissions constituting election frauds, offenses and malpractices, (Albatia v. Belo, GR. No. 158734, October 2, 2009) on Un en Caen ‘There are two kinds of determination of probable case: executive and judicial, ‘The executive determination of probable cause is one made during preliminary investigation, It is a function that properly pertains to the public prosecutor who is given a broad discretion to determine whether probable cause exists and to charge those whom he believes to have committed the crime as defined by law and thus should be held for trial, ‘The judicial determination of probable cause is one made by the judge to ascertain whether a warrant of arrest should be issued against the accused. The judge must satisfy himself that based on the evidence submitted, there is necessity for placing the accused under custody in order not to frustrate the ends of justice. If the judge finds no probable cause, the judge cannot be forced to issue the arrest warrant, (Reyes v, The Honorable Ombudsman, GR. Nos. 212593-94, March 15, 2016) If upon evaluation of the evidence, the prosecutor finds sufficient basis to find probable cause, he or she shall cause the filing of the information with the court. Once the information has been filed, the judge shall then “personally evaluate the resolution of the prosecutor and its supporting evidence” to determine whether there is probable cause to issue a warrant of arrest, The difference is clear: the executive determination of probable cause concerns itself with whether there is enough evidence to support an Information being filed. The judicial determination of probable cause, on the other hand, determines whether a warrant of arrest should be issued, (Mendoza v, People, G.R. No. 197293, April 21, 2014, as penned by J. Leonen) Probable min hi Prosecutor vs. Probable cause as determined by the Judge Oo on Ctr Cor a a) BY THE Para icd Presse Purpose | For the filing of | For the issuance an information in | of warrant to court by | determine determining whether there is whether there is | a necessity for reasonable placing the ground to believe | accused under that the accused | immediate is guilly of the | custody in order offense charged | not to frustrate and should be| the ends of held for trial. justice. (P/Supt Cruz v. Judge Areola, AM, No. RI-01-1642, March 6, 2002, Function | Executive Judicial function function Basis Reasonable The report and ground to believe | the supporting that a crime has | documents been committed. | submitted by the fiscal during the preliminary investigation and the — supporting affidavits that may be required to be submitted, NOTE: If the complaint or information is filed with the Municipal Trial Court or Municipal Circuit Trial Court for an offense not requiring a preliminary investigation nor covered by the Rule on Summary Procedure, the judge is required to determine probable cause not only for the issuance of a warrant of arrest, but also for the issuance a commitment order if the accused had already been arrested, and hold him for trial, (Sec. 8[bJ, 4M. No. 05-8-26-SC, effective August 30, 2005) RESOLUTION OF INVESTIGATING PROSECUTOR Initial steps in Preliminary Investigation It is the filing of the complaint with the investigating prosecutor that starts the preliminary investigation process, (Riano, 2011) Document mnying the complaint 1. The affidavits of the complainant; 2. The affidavits of his witnesses; and 423 vw UNIVERSITY OF SANTO TOMAS FAcuLty oF CiviL LawREMEDIAL LAW, 3. Other supporting documents that would establish probable cause. (Sec. 3[a], Rule 112) NOTE: The affidavits of the complainant shall be subscribed and sworn to before: 1. Any prosecutor; 2. Any government official authorized to administer oaths; or 3. In the absence or unavailability of the above mentioned, a notary public. ‘The officer or notary public before whom the affidavits were subscribed and sworn to must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. (Sec. 3[a], Rule 112) Duty of the Investigating Officer From the filing of the complaint, the investigating officer has 10 days within which to decide on which of the following options to take: 1. To dismiss the complaint if he finds no ground to conduct the investigation; or 2. To issue a subpoena in case he finds the need to continue with the investigation, in which case the subpoena shall be accompanied with the complaint and its supporting affidavits and documents. (Sec. 3[bj, Rule 112) NOTE: Within 10 days from receipt of subpoena, the respondent is required to submit his counter- affidavit, the affidavits of his witnesses and the supporting documents relied upon for his defense. (See. 3c], Rule 112) Despite the subpoena, if the respondent does not submit his counter-affidavit within the ten-day period granted him, the investigating officer shall resolve the complaint based on the evidence presented by the complainant. The same rule shall apply in case the respondent cannot be subpoenaed. (Sec. 3{d), Rule 112) Eiling of motion to dismiss during preliminary. investigation GR: In preliminary investigation, a motion to dismiss is not an accepted pleading for it merely alleges the innocence of the respondent without rebutting or repudiating the evidence of the complainant, XPN: When it contains countervailing evidence or defenses and evidence which rebuts or repudiates the charges; in which case it will be treated as a counter-affidavit. NOTE: If one files a motion to dismiss and he only asserts that the case should be dismissed, then the motion to dismiss is a mere scrap of paper. If the respondent does not later on submit a counter- affidavit, it will constitute a waiver on his part to file a counter-affidavit. Clarificatory Hearing Clarificatory hearing is not mandatory. A hearing may be set by the investigating officer only when there are facts and issues to be clarified either from a party or a witness, which shall be conducted within ten days from the submission of the counter-affidavit, other affidavits and documents filed by the respondent. NOTE: A waiver, whether express or implied, must be made in clear and unequivocal manner. Mere failure of the accused and his counsel to appear before the prosecutor for the clarificatory hearing or when summoned when such right was vigorously invoked at the start of the proceeding, is not a waiver to the right to preliminary investigation. (Larranga v. CA, GR. No. 130644, March 13, 1998) NOTE: The parties do not have the right to examine or cross-examine each other or the witnesses. If they have questions to ask, they shall submit the questions to the investigating officer who shall ask the questions. (Sec. 3{e], Rule 112) Records supporting the Information or Complaint An information or complaint filed in court shall be supported by the following: 1. Affidavits and counter-affidavits of the parties and their witnesses; and 2. Other supporting evidence and the resolution on the case. (Sec. 7/a), Rule 112) Record of the preliminary investigation GR: Record of the preliminary investigation shall not form part of the case. XPNs: 1. When the court considers it necessary in the resolution of the case or any incident therein; or 2._When itis introduced as an evidence in the UNIVERSITY OF SANTO ToMAS 2021 GoLnEN Noes 424CRIMINAL PROCEDURE case by the requesting party. (Sec. 7[bJ, Rule 112) Resolution of the Investigating Prosecutor Within 10 days from the termination of the investigation, the investigating prosecutor shall determine whether or not there is sufficient ground to hold the respondent for trial. (Sec. 3{f] Rule 112) Afterwards, if the investigating officer finds cause to hold the respondent for trial, he shall prepare the resolution and information. Otherwise, he shall recommend the dismissal of the complaint, (Sec. 4, Rule 112) ‘The information shall contain a certification by the investigating officer under oath in which he shall certify the following: That he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; 2. That there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; That the accused was informed of the complaint and of the evidence submitted against him; and 4. That he was given an opportunity to submit controverting evidence. (Sec. 4, Rule 112) Within 5 days from the issuance of his resolution, the investigating prosecutor shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy by the Sandiganbayan in the exercise of its original jurisdiction, They shall act on the resolution within ten days from their receipt thereof and shall immediately inform the parties of such action. (Sec. 4, Rule 112) NOTE: The resolution of the prosecutor is merely recommendatory. investigating No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy. (Sec 4, Rule 112) Effect when there is no prior written authority or approval of the provincial, or city prosecutor or the ombudsman or his deputy Complaints or information filed before the courts without the prior written authority or approval of the foregoing authorized officers renders the same defective and, therefore, subject to quashal pursuant to Section 3(d), Rule 117. (Quisay vs. People, G.R. No, 216920, January 13, 2016) ‘The filing of an Information by an officer without the requisite authority to file the same constitutes a jurisdictional infirmity which cannot be cured by silence, waiver, acquiescence, or even by express consent. Hence, such ground may be raised at any stage of the proceedings. Ibid.) Q: The Office of the City Prosecutor issued a Resolution finding probable cause against the petitioner for the violation of R.A. No. 7610. Later on, an Information was filed before the RTC charging the petitioner of the said crime. ‘The Resolution was penned by an Assistant City Prosecutor approved by a Senior Assistant City Prosecutor. The Information was penned by ACP De La Cruz, but without approval from any. higher authority. However, there was a Certification claiming that ACP De La Cruz has prior written authority or approval from the City Prosecutor in filing the said Information. The petitioner moved for the quashal of the Information against her on the ground of lack of authority of the person who filed the same before the RTC. The RTC denied the motion to quash for lack of merit. Is the RTC correct in denying the motion to quash for lack of merit? A: NO, Section 4, Rule 112 of the Revised Rules on Criminal Procedure states that the filing of a complaint or information requires a prior written authority or approval of the named officers therein before a complaint or information may be filed before the courts. As a general rule, complaints or informations filed before the courts without the prior written authority or approval of the foregoing authorized officers renders the same defective and, therefore, subject to quashal pursuant to Section 3 (d), Rule 117 of the same Rules. Thus, the Resolution finding probable cause to indict petitioner of the crime charged, was validly made as it bore the approval of one of the designated review prosecutors for OCP-Makati, SACP Hirang, as evidenced by his signature therein. However, the same could not be said of the Information filed before the RTC, as there was no showing that it was approved by either the City Prosecutor of Makati or any of the OCP- Makati’s division chiefs or review prosecutors. (Quisay v. People of the Philippines GR. No. 216920, January 13, 2016) 425 UNIVERSITY OF SANTO TOMAS FAcuLty oF CiviL Law @REMEDIAL LAW, Different findings between the investigating prosecutor and superior prosecutor When the Investigating Prosecutor recommends the dismissal of the complaint, but his findings are reversed by the “Superior” Prosecutor or Ombudsman on the ground that probable cause exists, the “superior” prosecutor or Ombudsman may by himself, file the information against the respondent, or direct another assistant prosecutor to do so without conducting another preliminary investigation. (Sec. 4, Rule 112) Remedy of the aggrieved party from the resolution of the Investigating Prosecutor as approved by his superior The aggrieved party is not precluded from filing a motion for reconsideration from receipt of the assailed resolution, Only one motion for reconsideration shall be allowed. (Sec. 3, 2000 NPS Rule on Appeal, DOJ Department Circular No. 70) ‘An aggrieved party may appeal by filing a verified petition for review with the Secretary of Justice and by furnishing copies thereof to the adverse party and prosecution office issuing the appealed resolution. The appeal shall be taken within 15 days from receipt of the resolution or of the denial of the motion for reconsideration or reinvestigation if one has been filed within 15 days from receipt of the assailed resolution. Only one motion for reconsideration shall be allowed. Unless the Secretary directs otherwise, the appeal shall not stay the filing of the corresponding information in court on the basis of the finding of probable cause in the assailed decision. ‘The decision of the prosecutor may be reviewed by the courts when he acts with grave abuse of discretion amounting to lack of jurisdiction, (Herrera, 2007) @ May a prosecutor be compelled by mandamus to file a complaint regarding a complaint filed which he previously dismissed for lack of merit after preliminary investigation? (1999 BAR) A: NO, This is because the determination of probable cause is within the discretion of the prosecutor. The remedy is an appeal to the Secretary of Justice, Reversal or modification of the Resolution of 2 ‘al ax Olly P ‘The Secretary of Justice may motu proprio reverse or modify the resolution of provincial or city prosecutor or chief state prosecutor. The Secretary of Justice may review resolutions of his subordinates in criminal cases despite the information being filed in court. (Community Rural Bank of Guimba v. Talavera, A.M, No, RTJ-05-1909, April 6, 2005) ‘The Secretary of Justice exercises the power of direct control and supervision over prosecutors, and may thus affirm, nullify, reverse or modify their rulings. In reviewing resolutions of state prosecutors, the Secretary of Justice is not precluded from considering errors, although unassigned, for the purpose of determining whether there is probable cause for filing cases in court, NOTE: If the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct, the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. (Sec. 4, Rule 112) Once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court, he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation, (Crespo vs. Mogul, GR. No, L~ 53373, June 30, 1987) Remedy of an aggrieved party against_a Resolution of the Secretary of Justice ‘The party aggrieved by the Secretary of Justice may file a Motion for Reconsideration within a non- extendible period of ten (10) days from receipt of the resolution on appeal, ‘The resolution of the Secretary of Justice is appealable administratively before the Office of the President, and the decision of the latter may be UNIVERSITY OF SANTO ToMAS 2021 GoLnEN Noes 426CRIMINAL PROCEDURE appealed before the CA pursuant to Rule 43. (De Ocampo v. Secretary of Justice, GR. No. 147392, January 25, 2006) However, if there is grave abuse of discretion resulting to lack or excess of jurisdiction, a petition for certiorari under Rule 65 may be filed, (Ching v. Secretary of Justice, GR. No. 164317, February 6, 2006) NOTE: Memorandum Circular No. 58 dated January 30, 1993, provides that appeals from or petition for review of decisions/orders/resolutions of the Secretary of Justice on preliminary investigations of criminal cases are entertained by the Office of the President under the following jurisdictional facts: ‘The offense involved is punishable by reclusion perpetua to death; 2. New and material issues are raised which were not previously presented before the Department of Justice and were not ruled upon; 3. The prescription of the offense is not due to lapse within six (6) months from notice of the questioned resolution; and 4, The appeal or petition for review is filed within thirty (30) days from notice, Henceforth, ifan appeal or petition for review does not clearly fall within the jurisdiction of the Office of the President, as set forth in the immediately preceding paragraph, it shall be dismissed outright and no order shall be issued requiring the payment of the appeal fee, the submission of appeal brief/memorandum or the elevation of the records to the Office of the President from the Department of Justice. Remedy of _an_aggrieved_party against the Resolution of the Ombudsman ‘he resolution of the Ombudsman in administrative cases may be subject of petition for review via Rule 43 before the CA (Sec. 7, Rule Ill of the Rules of Procedure of the Office of the Ombudsman) or a special civil action for certiorari via Rule 65 before the SC in criminal cases. (Mendoza-Arce v. Ombudsman, G.R. No. 149148, April 5, 2002) NOTE: Consistent with its independence as protector of the people and as prosecutor to ensure accountability of public officers, the Ombudsman is not and should not be limited in its review by the action or inaction of complainants. On the other hand, it is clear from Section 15 of RA. 6770 that the Ombudsman may motu proprio conduct a reinvestigation to assure that the guilty do not go unpunished. (Roxas v. Vasquez, GR. No, 114944 June 19, 2001) The Ombudsman is not precluded from ordering another review of a complaint, for he or she may revoke, repeal or abrogate the acts or previous rulings of a predecessor in office. (Alvarez v. People, GR. No. 192591; June 29, 2011) Should the information be already filed in court but the accused filed a petition for review of the findings of the prosecutors with the DOJ, the court is bound to suspend the arraignment of the accused for a period not exceeding 60 days. (Sec. 11, Rule 116) NOTE: The suspension shall be made upon motion ofthe proper party. Ibid.) Q: Does the SC and CA have the power to review the findings of prosecutors in preliminary investigation? A: YES. The SC and CA have the power to review the findings of prosecutors in preliminary investigations, Courts should never shirk from exercising their power, when the circumstances warrant, to determine whether the prosecutor's findings are supported by the facts, or by the law. In so doing, courts do not act as prosecutors but as organs of the judiciary, exercising their mandate under the Constitution, relevant statutes, and remedial rules to settle cases and controversies. The exercise of this Court's review power ensures that, on the one hand, probable criminals are prosecuted and, on the other hand, the innocent are spared from baseless prosecution. (Social Security System v, DOJ, G.R. No. 158131, August 8, 2007) NOTE: Even the RTCs can also make its own determination, upon proper motion, whether probable cause exists to hold the accused for trial (Ladlad v. Velasco, GR. Nos. 172070-72, June 1, 2007) WHEN WARRANT OF ARREST MAY ISSUE Determination of probable cause Within 10 days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor, In conducting the evaluation of the resolution, the judge shall look into supporting evidence. (See. 5, Rule 112) 427 UNIVERSITY OF SANTO TOMAS FAcuLty oF CiviL Law 9REMEDIAL LAW, Options of the judge upon the filing of Inform: 1. Dismiss the case if the evidence on record clearly failed to establish probable cause; 2. fhe or she finds probable cause, issue a warrant of arrest or issue a commitment order of the accused has already been arrested pursuant to a warrant of arrest or awfully arrested without warrant; or 3. In case of doubt as to the existence of probable cause, order the prosecutor to present additional evidence within five days from notice, the issue to be resolved by the court within thirty days from the filing of the information, NOTE: It bears stressing that the judge is required to personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. (Ong v. Genio, GR. No, 182336, December 23, 2009) Q: The NBI Director requested the prosecution of Janet Lim Napoles for serious illegal detention, The assistant state prosecutor recommended the dismissal of the complaint. However, in a Review Resolution, the senior deputy state prosecutor reversed the same and recommended the filing of the information. An Information for serious illegal detention before the RTC and Judge Alameda issued a warrant for her arrest. Aggrieved, Napoles filed before the CA a Petition for Certiorari imputing grave abuse of discretion on the part of the senior deputy state prosecutor. She contended that there was no probable cause to charge her with serious illegal detention, and that the RTC Judge Alameda erred in issuing the arrest. Is she correct? A: NO. Even before the filing of the Petition questioning the Review Resolution, an Information for serious illegal detention has been filed against Napoles. Therefore, with the filing of the Information before the trial court, this Petition has become moot and academic, The trial court has then acquired exclusive jurisdiction over the case, and the determination of the accused’s guilt or innocence rests within the sole and sound discretion of the trial court, That Judge Alameda issued the arrest warrant within the day he received the records of the case from the prosecutor does not mean that the warrant was hastily issued. Judge Alameda was under no obligation to review the entire case record as Napoles insists. All that is required is that a judge personally evaluates the evidence and decides, independent of the finding of the prosecutor, that probable cause exists so as to justify the issuance of an arrest warrant. (Napoles v, Hon. Sec. De Lima, GR. No. 213529, July 13, 2016, as penned by J. Leonen) Complaint filed pursuant to Jawful warrantless arrest The court shall issue a commitment order instead of a warrant of arrest. In case the judge doubts the existence of probable cause, the judge may order the prosecution to submit additional evidence within § days from notice. The issue must be resolved by the court within 30 days from the filing of the complaint or information. (Sec. 5, Rule 122, Rules of Court as amended by A.M. 05-08-26-SC, August 30, 2005) Instances_when_no_warrant_of arrest necessary 1. If the accused is already under detention pursuant to a warrant of arrest issued by the municipal trial court pursuant to its power to conduct preliminary investigation; 2. If the accused is lawfully arrested without awarrant; or NOTE: If the offense by which the person was arrested requires a preliminary investigation, an inquest proceeding shal be conducted. 3. If the offense is penalized by fine only. (Sec. 6{¢], Rule 112) 4. When there was no need for prior preliminary investigation and the case is not governed by the Rules on Summary Procedure, the judge may issue summons instead of a warrant of arrest, except when he fails to appear whenever required; and 5. When the case is subject to the Rules on Summary Procedure, except when he fails to appear whenever required, CASES NOT REQUIRING A PRELIMINARY INVESTIGATION Cases not requiring a preliminary investigation A preliminary investigation shall not be required under the following: 1. When the penalty prescribed by law for the offense involves an imprisonment of less than 4 years, 2 months and 1 day; and UNIVERSITY OF SANTO ToMAS 2021 GoLnEN Noes 428CRIMINAL PROCEDURE 2. Ifa person is arrested lawfully without a warrant involving an offense which requires preliminary investigation, an information or complaint may be filed against him without need for a preliminary investigation provided an inquest has been conducted in accordance with existing rules. (Sec. 6 Rule 112 as amended by A.M. No. 05-08-26-SC, August 30, 2005) ‘Thus, if a person is arrested by a police officer in flagrante delicto while robbing the victim, the arrest is a lawful one and 2 preliminary investigation is not required even if the penalty for robbery is more than 4 years, 2 months and 1 day. (Riano, 2011) Furthermore, if he has been arrested in a place where an inquest prosecutor is available, an inquest will be conducted instead of a preliminary investigation. In the absence or unavailability of an inquest prosecutor, an inquest may be dispensed with, The rule, hence allows the filing of the complaint directly with the proper court by the offended party or peace officer on the basis of the affidavit of the offended party or arresting officer. (Riano, 2016) In cases where preliminary investigation is not required, it may be instituted: By filing the complaint directly with the prosecutor; or NOTE: The prosecutor shall act on the complaint based on the affidavits and other supporting documents submitted by the complainant within 10 days from its filing. (Sec. 8[a], Rule 112) 2. By filing the complaint or information with the MTC. Instances when amendment of an information does _NOT warrant anew _ preliminary investigation 1. Amendment to information is not substantial (Villaflor v. Vivar, GR. No. 134744, January 16, 2001); ‘The court orders the filing of correct information involving a cognate offense (Sy Lim v. CA, GR. No. 1-37494, March 30,1982); and. 3. Ifthe crime originally charged is related to the amended charge such that an inquiry into one would elicit substantially the same facts that an inquiry to another would reveal. (Orquinaza v. People, G.R. No. 165596, November 15, 2005; Ilerrera, 2007) Instances when amendment of an information warrants anew preliminary investigation 1. If the amendment of the information changes the nature of the crime charged (Luciano v. Mariano, GR. No. 1-32950, July 30, 1971); or 2. When on its face the information is null and void for lack of authority to file the same and cannot be cured or revived by an amendment. (Cruz, Sr. v. Sandiganbayan, GR. No, 94595, February 26, 1995) the_right_to_submit_counter-affidavits and evidence A new preliminary investigation is required in order to accord the accused the right to submit counter-affidavits and evidence only in the following instances: 1. Where the original witnesses of the prosecution or some of them may have recanted their testimonies or may have died or may no longer be available and new witnesses for the state have emerged; 2. Where aside from the original accused, other persons are charged under a new criminal complaint for the same offense or necessarily included therein; 3. If under a new criminal complaint, the original charge has been upgraded; or 4, If under a new criminal complaint, the criminal liability of the accused is upgraded from being an accessory to that of a principal. (Ciron v, Gutierrez, GR. Nos. 194339-41, April 20, 2015) REMEDIES OF ACCUSED IF THERE WAS NO PRELIMINARY INVESTIGATION. ‘The accused must question the lack of preliminary investigation before he enters his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial, ‘An application for or admission of the accused to bail does not bar him from raising such question, (Sec. 26, Rule 114) Pailure to invoke the right before entering a plea will amount to a waiver. 429 UNIVERSITY OF SANTO TOMAS FAcuLty oF CiviL Law @REMEDIAL LAW, Remedies available to the accused if there was no__preliminary investigation conducted pursuant to a lawful warrantless arrest 1. Before the complaint or information is filed, the person arrested may ask for a preliminary investigation but he must sign a waiver of the provisions of Art. 125 of the RPC, as amended, in the presence of his counsel; NOTE: Art. 125 of the RPC deals with the period of delay in the delivery of detained persons to the proper judicial authorities, Accused may file a petition for certiorari if preliminary investigation is refused; The waiver by the person lawfully arrested of the provisions of Art. 125 of the RPC does not preclude him from applying for bail; 2. After the filing of the complaint or information in court without a preliminary investigation, the accused may, within 5 days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence as provided in the Rule (Sec. 6, Rule 112); 3. Refuse to enter a plea upon arraignment and object to further proceedings upon such ground; 4, Raise lack of preliminary investigation as error on appeal (US v. Banzuela, GR. No. 10172, October 1, 1915) and; 5, File for prohibition (Conde v. CFI, GR. No. 21236, October 1, 1923). Absence of a preliminary investigation; effects 1. It does not become a ground for a motion to quash the complaint or information as it does not impair the validity of the information or render it defective or affect the jurisdiction of the court (Sec. 3, Rule 117; People v. Buluran, GR. No. 113940, February 15,2000); 2. It does not affect the court's jurisdiction but merely the regularity of the proceedings (People v. De Asis, GR. No. 4105581, December 7, 1993); 3. It does not impair the validity of the information or render it defective; and 4, Itjustifies the release of the respondent or nullifies the warrant of arrest against him. (Larranaga v. CA, GR. No. 130644, March 13, 1998) NOTE: If the accused raises the issue of lack of preliminary investigation before entering a plea, the court, instead of dismissing the information, should remand the case to the prosecutor so that the investigation may be conducted. (Ibid.) ‘The right to preliminary investigation cannot be raised for the first time on appeal. (Pilapil v. Sandiganbayan, G.R. No. 101978, April 7, 1993) If lack of preliminary investigation is raised in a proceeding pending before the Sandiganbayan, the proceeding will be held in abeyance and case should be remanded to the Office of the Ombudsman or the Special Prosecutor to conduct the preliminary investigation. (Ong v. Sandiganbayan, GR. No. 126858, September 26, 2005) Q: The police officers arrived at the scene of the crime less than one hour after the alleged altercation and they saw Atty. Generoso badly beaten. Atty. Generoso pointed to the petitioners as those who mauled him, which Prompted the police officers to “invite” the petitioners for investigation. Consequently, the petitioners were indicted for attempted murder. The petitioners filed an Urgent Motion for Regular Preliminary Investigation on the ground that they had not been lawfully arrested as there was no valid warrantless arrest since the police officers had no personal knowledge that they were perpetrators of the crime. Were the petitioners validly arrested without a warrant? A: YES. The records show that soon after the report of the incident, SPO2 Javier was immediately dispatched to render personal assistance to the victim. This alone negates the petitioners’ argument that the police officers did not have personal knowledge that a crime had been committed. Personal knowledge of a crime just committed does not require actual presence at the scene while the crime was being committed; it is enough that evidence of the recent commission of the crime is patent and the police officer has probable cause to believe based on personal knowledge of facts and circumstances, that the person to be arrested has recently committed the crime. (Pestilos, et.al v. Generoso and People, GR. ‘No, 182601, November 10, 2014) INQUEST, Inquest Proceeding It is an informal and summary investigation conducted by a public prosecutor in criminal cases UNIVERSITY OF SANTO ToMAS 2021 GoLnEN Noes 430CRIMINAL PROCEDURE involving persons arrested and detained without the benefit of a warrant of arrest. Itis informal and summary and is issued by the court for the purpose of determining whether or not said persons should remain under custody and correspondingly be charged in court. (Sec. 1, DOJ Circular No. 61) Duties of an inquest officer ‘The initial duty of the inquest officer is to determine if the arrest of the detained person was valid and in accordance with Sec. 5 (a) and (b) of Rule 113 of the Rules of Court; should the inquest officer find that the arrest was not made in accordance with the Rules, he shall: 1. Recommend the release of the person arrested or detained; 2. Note down the disposition on the referral document; Prepare a brief memorandum indicating the reasons for the action taken; and 4. Forward the same, together with the record of the case, to the City or Provincial Prosecutor for appropriate action, (Sec. 9, DOJ Circular No. 61) NOTE: Where the recommendation is approved by the City or Provincial Prosecutor but the evidence on hand warrant the conduct of a regular preliminary investigation, the order of release shall be served on the officer having custody of said detainee and shall direct the said officer to serve upon the detainee the subpoena or notice of preliminary investigation, together with the copies of the charge sheet or complaint, affidavit or sworn statements of the complainant and his witnesses and other supporting evidence. Should it be found that the arrest was properly effected, the officer shall: 1. Ask the detained person if he desires to avail himself of a _ preliminary investigation; and 2. If he does, he shall be made to execute a waiver of the provision of Art, 125 of RPC with the assistance of a lawyer, (Sec. 10, Part I, Manual for Prosecutors) Person to conduct preliminary investigation ‘The preliminary investigation may be conducted by the inquest officer himself or by any other assistant prosecutor to whom the case may be assigned by the city or provincial prosecutor, which investigation shall be terminated within 15 days from its inception. (Sec. 10, Part Il, Manual for Prosecutors) Einding of probable cause 1. If the inquest officer finds that probable cause exists - he or she shall forthwith prepare the corresponding complaint or information with the recommendation that the same be filed in court, (Sec. 13 Part IT ‘Manual for Prosecutors) 2. If the inquest officer finds no probable cause - he or she shall recommend the release of the arrested or detained person. (Sec. 15 Part Il Manual for Prosecutors) Matters included ina referral document 1. Affidavit of arrest; ._ Investigation report; 3. The statement of the complainant and witnesses; and 4, Other supporting evidence gathered by the police in the course of the latter's investigation of the criminal incident involving the arrested or detained person, NOTE: The inquest officer shall, as far as practicable, cause the affidavit of arrest and statements or affidavits of the complainant and the witnesses to be subscribed and sworn to before him by the arresting officer and the affiants. (Sec: 3, Part Il, Manual for Prosecutors) Preliminary investigation vs, _Inquest proceeding ony Sr Irs Conducted to determine | To determine whether the should remain under custody and be charged in court, accused probable cause. Instances when production of a detained person before the inquest officer is dispensed with 1. Ifheis confined in a hospital; Ihe is detained in a place under maximum security; 3. If production of the detained person will involve security risks; or 4, If the presence of the detained person is not feasible by reason of age, health, sex and other similar factors. (Sec. 6, Part Il, ‘Manual for Prosecutors) 431 UNIVERSITY OF SANTO TOMAS FAcuLty oF CiviL Law @REMEDIAL LAW, Q Leo was arrested without a warrant following the issuance by PGMA of PD 1017. On the eve of his arrest, Leo was subjected to an inquest at the Quezon City Hall of Justice for Inciting to Sedition (Art. 142, RPC) based on a speech he allegedly gave during a rally. The inquest was based on a joint affidavit of Leo's arresting officers who claimed to have been present at the rally. The inquest prosecutor filed the corresponding Information with the MeTC. Several days after the first inquest, he was again subjected to a second inquest but this time for rebellion allegedly committed based on the letters of CIDG investigators claiming that Leo was the leader/ promoter of an alleged plot to overthrow the Arroyo government. The panel of prosecutors from the DOJ which conducted the second inquest subsequently issued a resolution finding probable cause to indict Leo as leader/ promoter of alleged rebellion, The panel filed an Information with the RTC of Makati, The court sustained the finding of probable cause against Leo. Leo filed a Petition to set aside the orders finding probable cause and the denial of the MR to enjoin his prosecution. Was the second inquest A: NO. Inquest proceedings are proper only when the accused has been lawfully arrested without warrant. Sec. 5, Rule 113 of the Revised Rules of Criminal Procedure provides the instances when such warrantless arrest may be effected The joint affidavit of Leo's arresting officers states that the officers arrested Leo, without a warrant, for Inciting to sedition, and not for rebellion. Thus, the inquest prosecutor could only have conducted ~ as he did conduct ~ an inquest for Inciting to Sedition and no other. Consequently, when another group of prosecutors subjected Leo to a second inquest proceeding for rebellion, they overstepped their authority rendering the second inquest void (Crispin Beltran v. People and Secretary Gonzales, GR. No. 175013, June 1, 2007) ARREST RULE 113 It is the taking of a person into custody in order 1. A senator or member of the House of Representatives shall, in all offenses punishable by not more than 6 years of imprisonment, be privileged from arrest while Congress is in session (Sec. 11, Art V1, 1987 Constitution); NOTE: The privilege of a senator or congressman will not apply when the offense is: a. Punishable by imprisonment of more than 6 years even if Congress is in session (People v. Jalosjos, GR. No. 132875-76, February 3, 2000); or b. If the offense is punishable by imprisonment of not more than 6 years if Congress is not in session. 2. Under the generally accepted principles of international law, sovereign and other chiefs of state, ambassadors, ministers plenipotentiary, ministers resident, and charges d'affaires are immune from the criminal jurisdiction of the country of their assignment and are therefore immune from arrest; and 3. Duly accredited ambassadors, public ministers of a foreign country, their duly registered domestics, subject to the principle of reciprocity. (Secs. 4 and 7, RA 75) ARREST, HOW MADE 1. By an actual restraint of a person to be arrested; or 2. By his submission to the custody of the person making the arrest. (Sec. 2 Rule 113) NOTE: Arrest may be made on any day, at any time of the day or night, (Sec.6, Rule 113) ‘The head of the office to which the warrant was delivered must cause it to be executed within 10 days from its receipt, and the officer to whom it is assigned must make a report to the judge who issued the warrant within 10 days from the expiration of the period. If he fails to execute it, he should state the reasons therefore, (Sec. 4, Rule that he may be bound to answer for the 113) commission of an offense, (Sec. 1, Rule 113) ARREST WITHOUT WARRANT, WHEN LAWFUL Persons who are NOT subject to arrest Instances when warrant of arrest is NOT necessary ga) UNIVERSITY oF SANTO TOMAS 432 (2 2021 GoLpex Notes