Documente Academic
Documente Profesional
Documente Cultură
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Revised
MANUAL
for
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PROSECUTORS
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tl EP,i\RTMENT OF JUSTICE
FOil( GFEC~AL USE ONLY
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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
Project, The Asia Foundation, Miilenium Challenge Account - Philippines Threshold Program, Technical
Assistance Project and the Asian Development Bank.
Copyright 2008 by DOJ-NPS. All rights reserved.
ISBN 978-971-561-753-6
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CONTENTS
FOREWORD
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ACKNOWLEDGMENT
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I. GENERAL PRINCIPLE
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A. COMPLAINT
1. Form of the Complaint Filed Before the Prosecutor's Office
2. Policy on Forms of Complaint Filed With the Prosecutor's Office
3. Persons Authorized to File Compiaints
4. Law Enforcement Officers/Public Officers Authorized to File
Criminal Complaints
5. Institution of Criminal Action; How and Where Commenced
6. Place Where Criminal Action is to be Instituted
7. Who Prosecutes Criminal Actions
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B. INFORMATION
1. The Information Need Not be Under Oath; Matter Which a
Prosecutor Must Certify Under Oath in the Information
2. Contents of the Caption of an Information
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n. PROCEDURE
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B. INQUEST PROPER
1. Contents of the Information
2. Action to be Taken When There is an Absence of
Probable Cause
3. Action to be Taken When the Arrested Person Executes a
Waiver of Article 125 of the Revised Penal Code
4. Posting of Bail by the ArrestedlDetained Person
a. If offense is bailable
b. If offense is non-bailable
5. Termination of Inquest Proceedings
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rv RELEVA1'1T JURISPRUDENCE
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V. HELPFUL HINTS
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PART Ill: SUMMARY INVESTIGATION
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II. PROCEDURE
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I. GENERAL RULES
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II. PROCEDURE
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Sample Resolution..............................................................119
Sample Information I
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Sample Information 2
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Sample Information 3
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Sample Information 4
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A. Plea Bargaining
B. Stipulation of Facts
C. Marking for Identification of Evidence of the Parties
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NON-APPEARAt~CEAT
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V. RELEVANT JURISPRUDENCE
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I. CONCEPTS
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A. Purpose of Bail...
B. Nature of the Right to Bail
C. Basis of Bail
D. When Bail Not Required
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m. OTHER MATTERS
A. Release on Recognizance; Guidelines
B. Requirements for the Grant of recognizance
Under R. A. No. 6036
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m. Relevant Jurisprudence
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I. GENERAL RULES
A. Concept
B. Coverage
11.TRIAL PREPARATION
m. PROCEDURE
A. Continuous Trial until Terminated
B. Order of TriaL..................................................................................
C. Presentation ofWitnesses
D. Conditional Examination of Witness for the Prosecution
E. Cross-Examination of the defense Witness
F. Rebuttal Evidence
G. Request for Subpoena
H. Custody of Physical and Real Evidence Pending Trial.,
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I. GENERAL RULES
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B. Coverage
C. Period to File the Petition
D. Action to be Taken by the Trial Prosecutor..
E. Action of the Chief State Prosecutor
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E. CLEAN AIR ACT (R.A. No. 8749)
1. Pointer.......................................................................................... 184
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A. Structure
B. Summative Checklist...
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A. Background
Definition
B. Dealing With Torture Under Substantive Law
I. Unconstitutionality
2. Direct Criminal Prosecution for Maltreatment of Prisoners
(Article 235, Revised Penal Code)
3. Separate and Simultaneous Criminal Actions
4. Prosecution Under the Human Security Act (R. A. No.9372)
5. Resort to Generic Remedies for Human Rights Violations
C. Dealing With Torture Under Procedural Law
I. Inadmissibility in Evidence Under the Constitution
2. Detection of Torture at the Inquest Stage
3. Treatment of Torture at the Trial Stage
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A. Background
B. Guidelines in the Delimitation of the Right of Abode and Right
to Freedom of Movement..
C. Remedies Available for Violation
1. Action for Damages Under the Generic Remedies for
Human Rights Violations
2. Criminal Action for Expulsion (Art. 127, Revised Penal Code)
3. Criminal Action for Grave Coercion
(Art. 286, Revised Penal Code)
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A. Present Context
B. Action for Damages under the Civil Code (Article 32)
1. Nature and Quantum of Evidence Required
2. By Whom Filed
3. Against Whom Filed
4. Grounds to be Alleged (Elements of Cause ofAction)
5. Relief That May be Granted.
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C. Filing a Claim Before the Boards of Claims of the Department of Justice
under the Victim Compensation Act (R. A. No. 7309)
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I. Legal Basis
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By Whom Filed
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Procedure for Filing Claims
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Procedure for Processing of Claims
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Time Period
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Relief That May be Granted
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B. Sec. 255. Failure to File return, Supply Correct and Accurate Information,
Pay Tax Withheld and Remit Tax and Refund Excess Taxes Withheld on
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C ompensation
1. Elements of Sec. 255
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2. Documentary Evidence Required
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3. Expenditure MethodlNet Worth Method
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4. Revised Penal Code Provision on Malversation to Willful
Failure to Remit
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5. Art. 222 - Officers Included
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C. Sec. 257 (B)(8) - Knowingly Use Fake Certificate Authorizing
Registration
1. Elements of Sec. 257 (B)(8)
2. Documentary Evidence Required
3. Revised Penal Code Provision on falsification in Relation to
Sec. 257(b)(8) of the NIRC
D. Sec. 258. Unlawful Pursuit of Business
1. Elements of Sec. 258
2. Documentary Evidence Required
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E. Sec. 267. Declaration Under Penalties of Perjury..................250
1. Elements of Sec. 267
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2. Documentary Evidence Required
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F. Sec. 236(J), last par. - Securing More Than One TIN.............. 251
l. Elements of Sec. 236(J)
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2. Documentary Evidence Required
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APPENDICES
Appendix "A" - D.O. No. 39, s. 2007 - Rules on Inquest with Respect
to Children in Conflict with the Law as Defined Under RA 9344
Otherwise Known as the "Juvenile Justice and Welfare Act
of 2006"
300
Appendix "B" - D.C. No. 46, s. 2003 - Automatic Review of Dismissed
Cases Involving RA 9165 (Comprehensive Dangerous Drugs
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Act of2002)
Appendix "c" - D.O. No. 318, s. 1991 - Defining the Authority, Duties
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and Responsibilities of Regional State Prosecutors
Appendix "D" - D.O. No. 54, s. 1992 - Amending D.O. No. 318, s. 1991
by Specifying the Instances Where a Regional State Prosecutor
can Designate an Acting City or Provincial Prosecutor to Handle
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the InvestigatioIliProsecution of a Particular Case
Appendix "E" - D.C. No. 50, s. 2000 (Specifying Aggravating and
Qualifying Circumstances in all Informations or
Complaints Filed In Court)
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Appendix "F" - D.C. No. 47, s. 2000 (Preparation ofa Trial Guide)... 311
Appendix "G" - D.C. No. 26, s. 2008 (Jurisdiction to Conduct Preliminary
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Investigation of Cases Against Public Officers/Employees)
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~at
ofJu~tice
It was in 1996
the first Manualfor Prosecutors ofthe D.epartment
was
issued as a unified guide for prosecutors m their day-to-day services to the public. In the
ensuing years, the Rules on Criminal Procedure had undergone revisions, several special
laws were enacted, and various jurisprudence emerged, thus, affecting the work of the
prosecutors. Yet, the Manual remained as it was in 1996. The need to revisit the Manual to
keep it attuned to recent developments in law and procedure is the prime consideration for
those involved in this project.
This Manual will provide for the procedural guidelines that will standardize investigative and prosecutorial work in the National Prosecution Service in a unified and
simplified manner.
I thank all those who have labored and partnered with the Department for the development and production of this Manual. May you continue with such noble work for
the Filipino people, and may more join you in efforts to strengthen the Department as an
institution and the justice system as a whole.
To all DOJ prosecutors and prosecution attorneys, this is your Manual. A lot 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.
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.
. GONZALEZ
Secretary of Justice
,
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Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN
Department ofJustice
Manila
05 October 2007
Chairperson
Co-Chairperson
Member
Member
Member
Member
Member
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
development of policy recommendations; oversee the progress of the manuals' preparation; and
conduct the evaluation and validation of said manuals nationwide in coordination with the DOJ
Management Services Office (MSO).
The Technical Working Group shall be assisted by a Secretariat. the members of which are
the following:
Corazon S. Navarrete
Eleanor P. Singson
Imelda A. Ballesteros
Evangeline C. Cruz
Support services, particularly the Administrative Service and the Finance and Management
Service shall extend the necessary assistance to the Technical Working Group.
This Department Order shall take effect immediately and shall remain in force until further
orders.
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ACKNOWLEDGMENT
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valuable policy research, process analysis, documentation, technical writing and project
management.
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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)
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
ofEnvironment and Natural Resources (DENR), who provided for specifics in the prosecution of environmental cases.
The Financial and Management Service and Administrative Service have also been
very supportive of the project by providing the necessary funding and logistics.
Lastly, retired Justice Romeo J. Calleja, Sr., a great thinker who, with his expertise
and smart thinking, proffered relevant and distinct suggestions during the round table disCUSSIOn.
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I.
GENERAL PRINCIPLES
1. The prosecution of cases shall be under the direct control and supervision of the
prosecutor. While he may turnover the actual prosecution of the criminal case to
a private prosecutor, it is necessary that he be present at the trial until the final
termination of the case; otherwise, if he is absent, it cannot be gainsaid that the
trial is under his supervision and control (Pinote v. Ayco, 477 SCRA 409 [2005]).
2. The trial prosecutor may, at any time, in the exercise of his discretion, take over
from the private prosecutor the actual conduct of the trial.
3. A prosecutor, by the very nature of his office, is under no compulsion to file a
particular criminal Information where he is not convinced that he has evidence
to support the allegations thereof or he is not convinced of the merits of the case
(Torres v. Aguinaldo, 461 SCRA 599 [2005 ).
4. The prosecution office has no more control over cases filed in court; thus, a motion
for reinvestigation should be addressed to the trial judge (Baltazar v. Pantig, G. R.
No. 149111, August 9,2005).
5. Once a case has already been filed in court, a trial prosecutor may be compelled
to prosecute the case notwithstanding his personal convictions or opinions. He
should present the case to the best of his ability and let the court decide the merits
of the case on the basis of the evidence adduced by both parties.
n.
DEFINITION OF TERMS
1.
Arraignment - is the formal mode and manner of implementing the constitutional right of the accused to be informed of the nature and cause of the
accusation against him (Sec. 13[2], 1987 Constitution of the Philippines). An
arraignment is necessary in order to fix the identity of the accused, to inform him
of the charge and to give him an opportunity to plead (14 Am. Jur., p.939, G. V
Jacinto, Criminal Procedure).
2.
Arrest - the taking of a person into custody in order that he may be bound to
answer for the commission of an offense (Sec. 1, Rule 113, Revised Rules on
Criminal Procedure).
3.
Bail - is the security given for the release of a person in custody of the law,
furnished by him or a bondsman, to guarantee his appearance before any court as
required under the conditions hereinafter specified. Bail may be given in the form
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Bail Bond - is an obligation given by the accused with one or more sureties, with
the condition to be void upon the performance by the accused of such acts as he
may legally be required to perform (Villasenor v. Abano, 21 SCRA 312).
5.
Complaint - a sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer, or other public officer charged
with the enforcement of the law violated (Sec. 3, Rule 110, Revised Rules on
Criminal Procedure).
6.
7.
Criminal action - A criminal action is one by which the State prosecutes a person
for an act or omission punishable by law (Sec. 3(b), Rule 1,1997 Rules of Civil
Procedure).
8.
9.
Inquest - an informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit
of a warrant of arrest issued by the court for the purpose of determining whether
or not said persons should remain under custody and correspondingly be charged
incoun.
10. Offended Party - is the person against whom or against whose property the crime
was committed (Sec. 3, Rule 110, supra) and to whom the offender is civilly liable
in light of Article 100 of the Revised Penal Code that "every person criminally
liable is also civilly liable (Garcia v. CA, 266 SCRA 678 [1997]); the person
actually injured and whose feeling is offended.
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11. Personal Knowledge of Facts (in arrests without warrant) - must be based
upon probable cause which means an actual belief or reasonable grounds of
suspicion,
The grounds of suspicion are reasonable when, in the absence of actual
belief of the arresting officers, the suspicion that the person to be arrested is
probably guilty of committing the offense is based on actual facts, i.e. supported
by circumstances sufficiently strong in themselves to create the probable cause
of guilt of the person to be arrested. A reasonable suspicion therefore must be
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founded on probable cause, "coupled with good faith on the part of the peace
officers making the arrest." (Umil, et. al. vs. Ramos, 202 SCRA 251 [1991]).
12. Plea - is the reply of the accused to the charge. In criminal prosecution, the
accused has to plead to the indictment, which he may do (1) by pleading to the
jurisdiction, that is, alleging that the court has no jurisdiction to try him; (2) by a
demurrer; or (3) by some plea in bar, either a general plea, "guilty" or "not guilty"
(Osborn Concise Law Dictionary, l i" Ed. John Burke, p. 254).
13. Plea Bargaining - the process where the accused usually pleads guilty to a lesser
offense, or to only one or some of the counts of a multi-count indictment in return
for a lighter sentence than that for the graver charge (Blacks Law Dictionary, 5th
Ed., p. 1037).
14. Preliminary Investigation - is an inquiry or proceeding to determine whether
there is sufficient ground to engender a well-founded belief that a crime has been
committed and the respondent is probably guilty thereof, and should be held for
trial (Sec. 1, Rule 112, Revised Rules on Criminal Procedure).
15. Probable Cause (for the purpose of filing an Information) - has been defined
as a reasonable ground of presumption that a matter is or may be well-founded;
such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion,
that a thing is so.
16. Probable Cause (as a ground for warrantless arrest) - an actual belief or
reasonable grounds of suspicion (People vs. Tudtud, GR No. 144037, Sept. 26,
2003) that the person to be arrested is about to commit or is attempting to commit
a crime, or is in the act of committing a crime, or has committed a crime, either in
the presence or without the presence of the arresting officer.
17. Recognizance - is an obligation of record, entered into before some court or
magistrate duly 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
trial (People v. Abner, 87 Phil. 566).
18. Release on Recognizance - the pre-trial release of an arrested person who promises, usually in writing but without a surety or posting bond, to appear for trial at
a later date (Black's Law Dictionary, p. 1316).
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
on Criminal Procedure), namely those involving offenses in which the prescribed
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penalty of imprisonment does not exceed four (4) years and two (2) months,
regardless of the fine.
20. Summary Procedure (as distinguished from Summary Investigation) - refers
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
thousand pesos (Phpl,OOO.OO).
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 pronouncing either the guilt or innocence of the accused (US v. Raymundo, 14 Phil.
416 [1909]).
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This liberal policy is premised upon the fact that the complainant is
unschooled in law, (Grenen v. Consolacion, 4 SCRA 722 [1962J) and
it is the inherent power of the prosecutor to even initiate motu proprio
a criminal investigation without waiting for a formal complaint to be
filed by the police agency or the aggrieved party. (Sec. 3, Rule 110,
supra.).
Even if the names of the offended parties are not alleged, if the offense
belongs to the class of harmful ones (illegal practice of medicine), the
victims should be considered offended parties (Diel v. Martinez, 76 Phil.
273).
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In offenses which cannot be prosecuted de oficio, only the following persons may file the complaint:
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5. In cases of violations of the Child Abuse Law, anyone of the following may file the complaint (Sec. 27. R. A. No. 7610. as amended
by R. A. No. 9231 [Child Labor Law]):
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2.
3.
4.
5.
6.
7.
parents;
spouse;
siblings,
children,
legal guardian;
any person who has personal knowledge of the commission of the
offense.
Complaints
Except in offenses which cannot be prosecuted de oficio, or where the law
specifies only certain persons as authorized to file the criminal complaint, the
following law enforcement officers or public officers or agencies may initiate
the criminal action or complaint:
a. police officers;
b. NBI agents;
c. officials of the Philippine Drug Enforcement Agency (PDEA) for violations ofRA 9165 (Comprehensive Dangerous Drugs Act of2002);
d. officials of the Bureau of Internal Revenue (BlR) for violations of the
National Internal Revenue Code (NlRC);
e. officials of the Bureau of Customs (BOC) for violations of the Tariff and
Customs Code;
f. officials of the Bureau of Forestry Development (BFD) or other officials
of the Department of Environment and Natural Resources for violations
of the Forestry Law;
g. officials of the Social Security System (SSS) for violations ofRA 1161, as
amended by RA 8282 (SSS Law);
h. officials of the Philippine Overseas Employment Administration (POEA)
for violations of RA 8042 (Migrant Workers and Overseas Filipinos Act
ofl995);
I.
officials of the PAG-IBIG for violations of the PAG-IBIG Fund Law (PD
1752); and
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Sec. 1,
Criminal actions for violations of the civil and political rights of persons suspected of or detained for the crime of terrorism or conspiracy
to commit terrorism may also be commenced by the filing of the complaint with the Commission on Human Rights (Sec. 55, RA. 9372).
b. For offenses that do not require preliminary investigationA criminal action may be commenced:
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trip, including the place of departure and arrival (Sec. 15 (b), Rule 110,
supra.).
b. Where the' offense is committed on board a vessel in the course of its
voyage
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
intemationallaw (Sec. 15(c) Rule 110, supra).
c. Where the crimes are committed outside the Philippines but punishable
under Article 2 of the Revised Penal Code The commission ofsuch crimes shall be cognizable by the court where
the criminal action is first filed (Sec. 15 (d), Rule 110, supra.).
7. Who Prosecutes Criminal Actions
a. All 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.).
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B. INFORMATION
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The terms "sexual abuse", "rape" or "acts of lasciviousness" are conclusions 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]).
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In order for the court to impose the penalties under R. A. No. 9346 in
2. When the victim is under the custody of the police or military authorities;
3. When the rape is committed in full view ofthe husband, parent, any
of the children or other relatives within the third degree of consanguinity;
4. When the victim is a religious or a child below seven (7) years old;
5. When the offender knows that he is afflicted with Acquired Immune
Deficiency Syndrome (AIDS) disease;
6. When the rape is committed by any member of the Armed Forces of
the Philippines or the Philippine National Police or any law enforcement agency;
7. When, by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation. (Sec. 11, RA 7659 [The Death
Penalty Law)).
c. the cause of the accusation
The acts or omissions complained of as constituting the offense and
the qualifying and aggravating circumstances must be stated in ordinary
and concise language and not necessarily in the language used in the
statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and
aggravating circumstances and for the court to pronounce judgment (Sec.
9, Rule 11 0, supra.).
d. place where the offense was committed
The Complaint or Information is sufficient if it can be understood from
its allegations that the offense was committed or some of its essential
ingredients occurred at some place within the jurisdiction of the court,
unless the particular place where it was committed constitutes an essential
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The prosecutor must always consider and allege the applicable qualifying and/or generic aggravating circumstances in any Complaint or
Information that he prepares.
b.
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a. For an offense penalized under the Revised Penal Code The period of prescription commences to run from the day on which
the crime was discovered by the offended party, the authorities, or their
agents, and shall be interrupted:
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ticularity. Not only the qualifying but also the aggravating circumstances must be
specified in the Information. The Rules now require aggravating circumstances
must not only be proved but it must also be alleged; otherwise, it should not be
considered. (Catiis v. CA., GR No. 153979, February 09, 2006.).
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6. The exact age of the victim at the time of the commission of the offense must be
stated in the Information. (People v. Arillas, GR No. 130593, June 19, 2000.).
7. Where the Informations state that the offense was committed with the aggravating circumstances of insult or in disregard of the respect due the offended
party on account of the fact that the accused is the father ofthe complainant, said
Informations properly pleaded the special circumstance of relationship of father
and daughter that would enable a "person of sufficient understanding" to know
what offense is intended to be charged (People v. Alarcon, 310 SCRA 729).
8. An aggravating circumstance, whether ordinary or qualifying, should entitle the
offended party to an award of exemplary damages within the context of Article
2230 of the New Civil Code even if the Information or criminal Complaint has
not alleged said circumstances as required by the Rule (People v. Victor, G. R. No.
127904, December 05,2002).
9. The court gave fair warning to prosecutors that they must prepare well-crafted
Informations that allege the circumstances qualifying and aggravating the crimes
charged; otherwise, the same will not be considered by the court in determining
the proper penalty (People v. Rodolfo Oling Madraga, January 20, 2003).
10. The words "aggravating/qualifying", "qualifying", "qualified by", "aggravating"
or "aggravated by" need not be expressly stated as long as the particular attendant
circumstances are specified in the Information. (People v. Aquino, 386 SCRA 391
[20002J as reiterated in People v. Paulino, 386 SCRA391 [2002J and People v.
Garin, 432 SCRA 394 [2004J).
11. When conspiracy is charged as a mode in the commission of a crime, the allegation in the Information should allege, thus: a) by the use of the word "conspire"
or its derivatives or synonyms, such as confederate, connive, collude, etc. or b) by
allegations of basic facts constituting the conspiracy in a manner that a person of
common understanding would know what is intended, and with such precision as
would enable the accused to competently enter a plea to a subsequent indictment
based on the same facts (Estrada v. Sandiganbayan, GR No. 148965, February
26,2002).
12. Allegations prevail over designation of the offense in the Information for conviction of the accused who may therefore be convicted of a crime more serious than
that named in the title or preliminary part if such crime is covered by the facts
42
alleged in the body of the Information and its commission is established by the
evidence (Buhat v. CA., 265 SCRA 701 [1996]).
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13. An Information for bigamy must state the time and place ofthe second wedding
(People'v. Bustamante, 105 Phil. 64).
14. Time is irrelevant in rape (People v. Bugayong, 299 SCRA 128) and violations of
the Dangerous Drugs Law cases. (People v. Requiz, 318 SCRA 635).
15. Where murder or homicide results from the use of an unlicensed firearm, the
crime is no longer qualified illegal possession, but murder or homicide, as the
case may be. The use of the unlicensed firearm is not considered as a separate
crime but shall be appreciated as a mere aggravating circumstance (People v.
Lazaro, 317 SCRA 435).
16. An amendment after plea which changes the nature of the offense is prohibited
(Ricers v. 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
specification ofthe provision oflaw alleged to have been violated they being conclusions of law but by the actual recital of facts in the Complaint or Information
(Lacson v. Executive Secretary, 301 SeRA 298 [1999J; People vs. Gutierrez, 403
SCRA 178).
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A. CONCEPT
Inquest is an informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit ofa
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.
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GENERAL RULES
B. COVERAGE
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II.
PROCEDURE
A. COMMENCEMENT OF THE INQUEST PROCEEDINGS
1. When Commenced
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medical certificate of the complaining witness showing the nature or extent of the injury and duration of healing;
certification or statement as to duration of the treatment or medical attendance;
certificate or statement as to duration of incapacity for work; and
marriage certificate in frustrated or attempted parricide cases.
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the medico-legal report (living case report), if the victim submitted herself
for medical or physical examination.
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gambling paraphernalia;
photograph of the gambling paraphernalia, if any; and
cash money, if any.
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marriage contract/certificate; or
affidavit/evidence of "dating relationship", if applicable; and
barangay protection order (BPO), if any.
birth certificate; or
dental chart accompanied by a certification from the dentist; or
affidavits of any of the parent/disinterested parties;
certificate of discernment from the LSWD in cases covered by RA
9344 (the Juvenile Justice and Welfare Act).
Other pieces of evidence may also be submitted to establish the commission of the foregoing offenses/crimes.
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3. Incomplete Documents
When the documents presented are not complete to establish probable cause,
the inquest prosecutor shall direct the law enforcement authorities to submit in
the proper form, the required evidence within the period prescribed under the
provisions of Article 125 of the Revised Penal Code, as amended (please refer
to NPS INQ Form No. 01. s. 2008 on p. 62 of this Manual). Failure to submit
the required evidence within the periods prescribed shall constrain the inquest
prosecutor to order the release of the detained person (please refer to NPS INQ
Form No. 02, s. 2008 on p. 64 ofthis Manual).
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The absence of the detained person for any of the foregoing reasons shall be
noted by the inquest prosecutor and reflected in the record of the case.
5. Charges and Counter-Charges
All charges and counter-charges arising from the same incident shall, as far as
practicable, be consolidated, and the conduct of the inquest proceedings shall be
held jointly to avoid contradictory or inconsistent dispositions.
6. Determination of the Arrest by the Inquest Prosecutor
The inquest prosecutor shall first determine 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 warrant 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).
a. when, in the presence of the arresting officer, the person to be arrested has
committed, is actually committing, or is attempting to commit an offense; or
b. when an offense has in fact just been committed, and the arresting officer has
probable cause to believe, based on personal knowledge of facts or circumstances, that the person to be arrested has committed it; and
,
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if he is confined in a hospital; or
if he is detained in a place under maximum security;
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----
c. when the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily
confined while his case is pending, or has escaped while being transferred
from one confinement to another.
For this purpose, the inquest prosecutor may summarily examine the arresting officers on the circumstances surrounding the arrest or apprehension of the
detained person.
Where the recommendation for the release of the detained person Is approved
by the Chief State Prosecutor or by the Provincial/City Prosecutor but the evidence on hand warrants the conduct of a regular preliminary investigation, the
inquest prosecutor shall:
serve the order of release on the law enforcement officer having custody
of said detainee and (please see NPS INQ Form No. 02, s.2008 on p. 64
ofthis Manual);
direct the said officer to serve upon the detainee the subpoena or notice
of preliminary investigation, together with the copies of the charge sheet
or complaint, affidavits or sworn statements of the complainant and his
witnesses and other supporting evidence (please refer to NPS INQ Form
No. 03, s. 2008 on p. 66 ofthis Manual).
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B. INQUEST PROPER
Where the detained person does not opt for a preliminary investigation or
otherwise refuses to execute the required waiver, the inquest prosecutor shall
proceed with the conduct of the inquest proceeding, notwithstanding the absence
of a counsel, by examining the sworn statements/affidavits of the complainant
and the witnesses and other supporting evidence submitted.
If necessary, the inquest prosecutor shall require the presence of the complaining witnesses and subject them to an informal and summary investigation or
examination for purposes of determining the existence of probable cause.
If the inquest prosecutor finds that probable cause exists, he shall forthwith
prepare the resolution with the corresponding Complaint/Information with the
recommendation that the same be filed in court. The ComplaintlInformation shall
indicate the offense/s committed and the amount of bail recommended, if applicable. However, in inquest cases for crimes covered by the Rules on Summary
Procedure and RA 6036 where no bail is required, the inquest prosecutor shall
recommend the release of the arrested person and prepare the Information for
filing with the court.
Thereafter, the record of the case, together with the resolution and the
ComplaintlInformation, shall be forwarded to the Chief State Prosecutor or the
ProvinciallCity Prosecutor for approval and subsequent filing before the proper
Court.
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g. description of the items subject matter of the complaint, if there are any;
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
age;
J.
the full names and addresses of the parents, custodians or guardians of the
minor complainant or accused, as the case may be;
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c. forthwith forward the record of the case to the Chief State Prosecutor or
the Provincial/City Prosecutor for appropriate action.
When me Chief State Prosecutor or the Provincial/City Prosecutor sustains 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
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
Manual)
Meanwhile, the arrested or detained person shall be released.
....--------
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1. forthwith proceed to the crime scene or place of discovery of the dead person;
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2. cause the immediate autopsy of the dead person to be conducted by the appropriate medico-legal officer in the locality or the PNP medico legal division
or the NBI medico-legal office, as the case may be;
3. direct the police investigator to cause the taking of photographs of the crime
scene or place of discovery of the dead body;
4. supervise the crime scene investigation to be conducted by the police authorities as well as the recovery of all articles and pieces of evidence found thereat;
to see to it that the same are safeguarded; and that the chain of the custody
thereof be properly recorded; and
5. submit a written report of his/her :findingto the Chief State Prosecutor or the
Provincial/City Prosecutor as the case may be for appropriate action.
11.
SAt"ffiIGANBAYAt~
CASES
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1. The permissible warrantless arrests are: (l) arrests in flagrante delicto; (2) arrests
effected in hot pursuit; (3) arrests ofescaped prisoners (People vs. Macalaba, 395
SCRA 461).
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4. A warrantless arrest is not justified by the mere fact that a crime is being committedin one's presence. The arresting officer must have personal knowledge of
such commission. The knowledge must precede the arrest. The arrest cannot be
justified by discovery thereafter that the person was committing a crime (People
vs. Judge Laguio, GRNo. 128587, March 16, 2007).
5. Buy-bust operations are considered arrests inflagrante delicto. (people vs. Lacap,
368 SCRA 64.).
6.
"Just been committed" connotes immediacy in point of time (the time interval
between the actual commission of the crime and the arrival of the arresting officer
must be brief). (People vs. Del Rosario, 305 SCRA 740 [1999])
7.
A warrantless arrest made three (3) days after the commission of the crime
(People vs. Monda, November 22. 1993, 48 SCAD 478, 228 SCRA 115) or 19
hours thereafter (People vs. Manlulu, April 22, 1994, 50 SCAD 71, 231 SCRA
701) were held to be unlawful.
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8. When a police officer sees the offense, although at a distance, or hears the disturbances created thereby, and proceeds at once to the scene thereof, he may effect
an arrest without a warrant since the offense is deemed committed in his presence
or within his view (People vs. Sucro, 195 SCRA 388).
9. The "personal knowledge" of the fact ofrape which was supplied by the ra p e
victim herself to the arresting officer falls within the purview of a warrantless
arrest (People vs. Alvario, 275 SCRA 529[1997]).
10. A letter invitation is equivalent to arrest. Where the invitation comes from a
powerful group composed predominantly of ranking military officers and the
designated interrogation site as a military camp, this is obviously a command or
an order of arrest (Sanchez, vs. Demetriou, 46 SCAD 152, 227 SCRA 627).
56
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V.
HELPFUL HINTS
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Receiving Staff:
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LAW/S VIOLATED:
PLACE of COMMISSION:
1. Has a similar complaint been filed before any other office? * YES _
NO_
2. Is this complaint in the nature of a counter-charge?" YES
NO'
If yes, indicate details below.
3. Is this complaint related to another case before this office?"
YES
NO
If yes, indicate details below.
LS. No.: -:::-_ _~
Handling Prosecutor:
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Complainant/s,
1.S. No.
For:
-versus-
_
-r--r-
Respondent/s.
x-----------------------------------------x
ORDER
(To submit additional evidence/documents)
In connection with the investigation being conducted in the above-captioned case, you
are hereby directed to submit the following evidence/documents, to wit:
1.
2.
,
j. - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
4.
5.
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within
tIt:-
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.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _"Philippines
_ _ _ _ _ _ _ 20_ _
;... ,...
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Inquest Prosecutor
(Signature over printed name)
day of
-----', 20 __
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Complainant,
1.S. No.
For:
- versus-
_
_
Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - -x
RELEASE ORDER
(Of Detained!Arrested Person)
Unless otherwise detained for some other legal cause, you are hereby directed to release
the person of
who is presently under your custody in
connection with the above-captioned case, it appearing that: *
o
o
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)
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_ _ _ _ _ _ _ _ _ _ _, Philippines.
,r
20
Inquest Prosecutor
(Signature over printed name)
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APPROVED:
day of
. 20
Investigating/Police Officer
(Signature over printed name)
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Department of Justice
NATIONAL PROSECUTION SERVICE
Complainant/s,
1.S. No.
For:
-versus-
_
_
Respondent/s,
x-----------------------------------------x
SUBPOENA TO RESPONDENT/S
TO:
GREETINGS:
Under and by virtue of the authority vested in me by law, you are hereby directed to submit
your counter-affidavit and other supporting documents or affidavits ofyour witness/es, if any, to be
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.
You are hereby WARNED that failure on your part to comply with the subpoena shall
be considered as a waiver of your right to present your defense and the case shall be considered
submitted for resolution based on the evidence on record.
WITNESS MY HAND this
_ _ _ _ _--', Philippines.
day of _ _ _ _ _ _ _ _, 200_ at
INVESTIGATING PROSECUTOR
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Complainant,
LS. No.
-versusFor:
-------
Respondent.
x-----------------------x
REQUEST FOR PRELIMINARY INVESTIGATION
AJ.~ WAIVEROF ARTICLE 125, REVISED PENAL CODE
(Where Arrest was Properly Effected)
With the assistance of counsel of my choice, I wish to avail of my right to a preliminary
investigation, and for this purpose, I hereby voluntarily waive my rights under the provisions of
Article 125 of the Revised Penal Code. Pending the completion of the preliminary investigation
proceedings, I agree to remain under police custody.
_ _ _ _ _~--:-----'Philippines.
(Place)
(Date)
Respondent
(Signature over printed name)
Assisted By:
Counsel
(Signature over printed name)
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CERTIFICATION
(For Information in Inquest Cases)
I hereby certify that the foregoing Information is filed pursuant to Sec. 6, Rule 112 of the
1985 Rules on Criminal Procedures, as amended, the accused not having opted to avail of his
right to preliminary investigation and not having executed a waiver pursuant to Article 125 of the
Revised Penal Code. I further certify that this Information is being filed with the prior authority of
the Chief State Prosecutor/Provincial/City Prosecutor.
Inquest Prosecutor
(Signature over printed name)
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Complainant,
1.S. No.
For:
-versus-
Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - - -x
RELEASE ORDER
(Of Recovered Articles)
THE EVIDENCE
CUSTODIAJ~
20_ _
Inquest Prosecutor
(Signature over printed name)
continued, nextpage> >
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APPROVED:
day of
, 20_ _
Evidence Custodian
(Signature over printed name)
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Complainant,
1.S. No.
For:
- versus-
------
Respondent.
x-----------------------x
REQUEST FOR RELEASE
with
lJNDERTAKING
(Of Recovered Articles by Requesting Party)
which were recovered by the. police authorities and presently in the custody of
_ _ _ _ _ _ _ _ _ _ _"and in connection therewith, I declare under oath:
I. That I am the lawful owner/possessor thereof, as evidenced by
. copies of which are hereto attached;
2. That said articles/properties are not instruments or tools in the commission of any offense
nor the proceeds thereof;
3. That I undertake to produce the same before your Office or the court when so required;
4. That I have caused the said articlesfproperties to be photographed/photocopied and certified by the police custodian as accurately representing the same;
5. That I affirm the affidavit/statement executed by me on
before
_----,---:-::_ _---,---_ _---,- and hereby bind myself under penalty of law to appear and
testify thereon in court when so required.
continued, nextpage> >
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_ _ _ _ _ _, Philippines,
20
Requesting Party
(Signature over printed name)
20
dayof
Administering Officer
(Signature over printed name)
RECOMMENDING APPROVAL:
Investigating Prosecutor
(Signature over printed name)
APPR OVED:
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--------------
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INQUEST PROCEDURE
s:
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(12 hours for light; 18 hours for less grave offense; 36 hours for grave offenses)
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WITH
PROBABLE
fll
CAliSE
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FILING OF
INFO IN
COIIRT
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CAUSE
ARREST
PROPERLY
EfFECTED
AFFIDAVIT OF
ARREST
WI WAIVER
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OTHER DOC
~
ARREST
NOT
PROPERLY
EFFECTED
RECOMMEND
RELEASE OF
RESPONDENT
PRELIMINARY
INVESTIGATIOII PROPER
+IR+S5+
REGULARP.1.
+ RELEAse
SUSTAIN
REVERSE
SUSTAIN
REVERSE
FILING OF INFO IU
COURT
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FlUNG OF INFO IN
COURT
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EE PROCEDURE
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15 DAYS
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RECOMMENDS
DISMISSAL OF
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RELEASE OF
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CONTINUE WITilINQUEST
DISMISSAL OF COMPLAINT.
RELEASE OF RESPONDENT
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GENERAL RULES
A. CONCEPTS AiW PRINCIPLES
B. COVERAGE
All offenses punishable by imprisonment ofless than four (4) years two (2) months
and one (l) day, viz:
1.
2.
3.
4.
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8) Art. 178 9) Art. 179 10) Art. 200 11) An. 202 12) Art. 217 -
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PROCEDURE
Within ten (10) days from assignment of the complaint, the investigating prosecutor shall
initiate the following actions:
1. Act on the complaint based on the affidavits and other supporting documents submitted by the complainant;
2. Prepare a brief resolution recommending the dismissal of the complaint for the
approval of the Chief State Prosecutor/Regional State Prosecutor, Provincial/City
Prosecutor if he finds no probable cause;
3. Prepare a resolution and the corresponding Information for the approval of the Chief
State Prosecutor/Regional State Prosecutor, Provincial! City Prosecutor if he finds
sufficient ground to engender a well- founded belief that a crime has been committed
and the respondent is probably guilty thereof and should be held for trial; and,
4. File the Information in court if the resolution is approved. The Information shall not
contain a certification that a preliminary investigation has been conducted.
Where the prosecutor opts to conduct preliminary investigation, he/she shall follow the
procedure under Part IV of this Manual.
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GENERAL RULES
A. CONCEPTS AND PRINCIPLES
It
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).
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1. It is an Executive Function.
It is merely inquisitorial and it is often the only means of discovering the persons
who may be reasonably charged with a crime, to enable the prosecutor to prepare his
Complaint or Information (Tandoc v. Resultan, 175 SCRA 37 [1989J).
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3. It is a Personal Right.
The right to a preliminary investigation is also a personal right, which can be
waived expressly or impliedly. There is an implied waiver when an accused refuses
to submit his counter-affidavit, or when he fails to invoke such right or to question the
irregularity of the preliminary investigation that was conducted, but instead submits
himselffor arraignment and go to trial (People v. Valencia, 214 SCRA 88; People v.
de Asis, 228 SCRA 267).
In inquest cases, the accused impliedly waives his right to a preliminary investigation, if he fails to invoke the same within five (5) days from the time he learns
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of the filing of the Information. This five-day period for the filing of a motion for
preliminary investigation after an Information has been filed in court against an accused who was arrested without a warrant, has been characterized as mandatory (Sec.
6, Rule 112, supra.).
4. It is a Substantive Right.
While the right to a preliminary investigation is merely statutory, nevertheless,
it is a substantive right and to withhold it would be to transgress constitutional due
process (Salonga v. Pano, 134 SCRA 438).
D. COVERAGE
All offenses where the penalty prescribed by law is at least four (4) years, two (2)
months and one (l) day, without regard to the fine (Sec. 1. par. 2, Rule 112, supra.).
All offenses punishable by imprisonment of less than four (4) years two (2) months
and one (l) day where the prosecutor believes that a preliminary investigation should be
conducted.
All offenses committed by public officials or employees in connection with the perfonnance of their official duties and functions.
E. QUAJ.'lTUM OF EVIDENCE REQUIRED
In preliminary investigations, the evidence required for purposes of filing a
Complaint or Information in court is merely such evidence as would engender a wellfounded 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.).
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c. A probable cause has been defined as the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the
acts within the knowledge ofthe prosecution, that the person charged was
guilty of the crime for which he was prosecuted (Cruz, Jr. v. People, 233
SCRA 439 [1994]).
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G.O~CERSAUTHOmzEDTOCONDUCTPRELIMINARY
INVESTIGATIONS
The following may conduct preliminary investigations (Sec. 2, par. 1, Rule
112, supra):
1. Provincial or City Prosecutors and their assistants;
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Providing jar the Functional and Structural Organization oj the Office
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
04,2007 and Chavez v. CA, G. R. No. 125813, February 06, 2007).
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NOTE: A prosecutor has a shared authority to investigate and prosecute Ombudsman cases not cognizable by the Sandiganbayan. With
respect to cases cognizable by the Sandiganbayan, the Ombudsman
has primary authority to investigate and exclusive authority to file and
prosecute Sandiganbayan cases (Uy v. Sandiganbayan, supra.).
Under DOJ Circular No. 26 dated July 3, 2008, a prosecutor
has legal authority to take cognizance of, and conduct preliminary
investigation/inquest proceedings on complaints filed before himlher
involving violations ofpenal laws, regardless ofwhether or not the respondents therein are public officials and/or employees; PROVIDED
That, for cases cognizable by the Sandiganbayan in the exercise of
its original jurisdiction under Sec. 4(a), (b), and (c) of RA 7975, as
amended, the Ombudsman may take over at any stage of the investigation, in line with its primary jurisdiction under the last sentence of
Sec. 15(1) oiRA 6770, conformably with the ruling in Honasan Il vs.
The Panel ofInvestigating Prosecutors ofthe DOJ (GR No. 159747,
April 13, 2004, 427 SCRA 46).
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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).
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PROCEDURE
A. COMMENCEMENT OF THE PRELIMINARY INVESTIGATION
A preliminary investigation proceeding is commenced:
1. by the filing of a complaint by the offended party or any competent person
(Ebarle v. Sucaldito, 156 SCRA 803 [1987J) directly with the office of the
investigating prosecutor;
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under Sec. 412 (a) ofRA 7160, "The Local Government Code of 1991."
Otherwise, the prosecutor shall not take cognizance of the case.
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d. that the complainant failed to submit a barangay certification for offenses covered by the Katarungang Pambarangay Law.
e. that no clearance from the Department of Labor and Employment or
from any regional office thereof is attached to the complaint where the
complainant is an employer and the respondent is his/her employee.
(Ministry Circulars Nos. 8 and 15 dated 1982 and 1985 respectively)
3. Where the respondent is a child and he is above fifteen (15) years of age
but below eighteen (18), the prosecutor shall determine whether or not the
child acted with discernment.
lfhe/she acted with discernment, the prosecutor shall:
a. refer the case to the concerned Lupong Tagapamayapa for the
diversion proceedings, if the case falls within the jurisdiction of
the Lupon; or
b. conduct the requisite diversion proceedings if the penalty for the
offense charged is beyond the jurisdiction of the Lupon but does
not exceed six (6) years of imprisonment; or
c. proceed with the preliminary investigation if the penalty for the
offense charged is imprisonment of more than six (6) years, applying the rules and procedure on the conduct of the preliminary
investigation as herein provided.
4. issue a subpoena to the respondent, attaching thereto a copy of the complaint together with the affidavits of witnesses and other supporting documents (Sec. 3 rbi, Rule 112, supra.). (please refer toNPS INVForms Nos.
03, 04, and 05, s. 2008 on pp. 112, 113and 114 ofthis Manual)
C. SERVICE OF THE SUBPOENA TOGETHER WITH THE COMPLAINT
AND SUPPORTING AFFIDAVITS AND OTHER DOCUMENTS TO THE
RESPONDENT/S
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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
at his expense (Sec. 3 (b), par. 2., Rule 112, supra.; Commissioner ofInternal
Revenue v. Court ofAppeals, 257 SCRA 200).
Failure on the part of the respondent or his counsel/representative
to appear before the investigating prosecutor to obtain copies of the complaint, supporting affidavits and other documents despite receipt of notice or
subpoena shall be considered a waiver of respondent's right to be furnished
copies ofthe complaint, supporting affidavits and other documents, as well as
to examine all other pieces of evidence submitted by the complainant.
4. Objects as Evidence
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.).
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City/Municipal Station Commanders ofthe Philippine National Police
(pNP) maybe requested for the purpose.
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b. Under other circumstances, where personal service cannot be effected but the respondent cannot be considered as incapable of being
subpoenaed, as when he continues to reside at his known address
but the return states that he "has left his residence and his return is
uncertain" or words of similar import, service of subpoena and its
attachments shall be effected by registered mail with return card at
respondent's known home/office address. On the face of the envelope
shall be indicated:
1. the name and return address of the sender, and the typewritten!
printed phrase "First Notice Made on
", thus instructing
the postmaster/postal employee of the necessity of informing the
sender of the date that the first notice was made on the addressee;
and
2. the typewritten/printed request: "If not claimed within five (5)
days from the first notice, please return to sender."
c. Within ten (10) days from receipt 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
112, supra; DOJ Memorandum Circular No. 25 dated 02 October
1989).
d. If the envelope remained unclaimed or is not returned within 20 days
from mailing, the investigating prosecutor may proceed to resolve the
complaint on thebasis of the evidence presented by the complainant.
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Affidavit
a. engage the services of counsel in order to assist him during the preliminary
investigation proceedings;
b. examine or verify the existence, authenticity or accuracy of voluminous
records, files, accounts or other papers or documents presented or submitted in support of the complaint; or
c. undertake studies or research on novel, complicated or technical questions
or issues of law and of facts attendant to the case under investigation.
Extensions of time to submit a counter-affidavit for any of the reasons
stated above shall not exceed ten (10) days. Additional extensions maybe authorized by the Chief State Prosecutor/Regional State Prosecutor/ Provincial
or City Prosecutor concerned.
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the fact that the complaint, or one similar thereto or identical therewith, has previously been filed with the Office and has been fully
adjudicated upon on the merits after due preliminary investigation
proceedings; or
The filing of a motion for the dismissal of the complaint or for the submission
of a bill of particulars shall not suspend or interrupt the running of the period for
the submission of the counter-affidavitfs and other supporting documents.
4. Action on Motions to Dismiss on the Basis of an Affidavit of Desistance
An affidavit of desistance is viewed with suspicion and reservation and regarded as exceedingly unreliable. It is merely an additional ground to buttress the
defense of the respondent. The investigating prosecutor must be able to discern
other circumstances which, when coupled' with the desistance, creates doubt as
to 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
desistance.
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Upon marion of a party or when raised in a counter-affidavit, the investigating prosecutor shall suspend preliminary investigation proceedings if the
existence of a prejudicial question is satisfactorily established.
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A prejudicial question is one, the resolution of which is a logical antecedent of the issue involved in a case and the cognizance of which pertains
to another tribunal (Ras v. Rasul, 100 SCRA 125 [1980J; Quiambao v. Osorio,
G. R. No.48157, March 16, 1988.).
It is based on a fact distinct and separate from the crime charged but so
intimately connected with it that it determines the guilt or innocence of the
accused. To suspend the criminal action, it must not only appear that said
case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues
raised in the civil case, the guilt or innocence of the accused would necessarily be determined. (Donato v. Luna, G. R. No.53642, April 15, 1988; Prado
v. People, 133 SCRA 602 [1984J; and Librodo v. Coscolluela, Jr., 116 SCRA
303 [1982})
b. Elements of a Prejudicial Question.
3: the cognizance ofthe said issue pertains to another tribunal (C! Ras v.
Rasul, supra; Quiambao v. Osorio, supra).
c. Issuance ofan Order Suspending the Proceedings Due to the Existence ofa
Prejudicial Question; Written Approval of the Head of Office Required
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The investigating prosecutor may record the facts and issues clarified and/
or the questions asked and answer/s given during the clarificatory questioning which shall be signed by the parties concerned and/or their respective
counsels. Said notes shall form part of the official record of the case.
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Parties who desire to file an appeal or petition for review of the investigating prosecutor's resolution may, at their option, cite specific portions of the
oral testimony of any of the parties/witnesses by referring to the notes taken
by the investigating prosecutor.
3. No Right to Counsel
It has been held that there is nothing in the rules which render a preliminary investigation invalid without the assistance of counsel (People v. Narca,
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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
complaint with the lowest docket number or to another prosecutor at the discretion of tlie head of office and the consolidated complaints shall be jointly heard
by said investigating prosecutor:
1. when there are charges and counter-charges;
2. when the complaints arose from one and the same incident or transaction or
series of incidents or transactions; and
3. cases involving common parties and founded on factual and/or legal issues of
the same or similar character.
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a. Caption of resolution
The caption of the resolution shall indicate the:
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b. Names of parties
The complete names of all the complainants and respondents in the
case shall be set out in the caption of the resolution. It is not proper to use
the phrase "et, al." to refer to other complainants and respondents.
Thenamels ofthevictimJs orinjuredpartylies, nottheirrepresentativels,
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
by the name and designation of the police officer representing the police
station.
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c. Case Number
The number of a case shall be based on the following system of sequential codes:
Sequential codes:
o roman numeral - NPS region and OCSP number
o two (2)-digit number - city/provincial office
o small letter - provincial substation
o PI or INQ - "PI" for regular preliminary investigation or summary
investigation case; "INQ" for inquest case
o two (2)-digit number -last two (2) digits of the year
o capital letter - month ("A" to "L" for January to December, respectively)
o five (5) digit number - series number for an entire calendar year
lllustrative examples:
o I-OI-INV-08A-OOOOI
Region I
I
ORSP
01
regular
PI or summary investigation case
INV
year 2008
08
month of January
'A
first regular PI/summary investigation case for year
00001
2008
o I-05a-INQ-08A-OOOI0
I
05
a
INQ
08
A
00010 -
Region I
OPP La Union
Agoo Sub-Station
inquest case
year 2008
month of January
lOth inquest case for year 2008
o XV-OI-INV-08L-OI000
XV
National Capital Region
01
OCP Antipolo
regular PI or summary investigation
INV
case
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08
'L
01000 -
year 2008
month of December
1,000th PI/summary investigation case
for year 2008
o XVI-INV-08L-03000
XVI
INV
08
L
03000
OCSP
regular PI or summary investigation
year 2008
month of December
3,000th PI/summary investigation case
for year 2008
For offenses that are punishable under the Revised Penal Code, the
caption shall set forth the denomination of the offense and the specific
article and paragraph of the statute violated.
Where there is another charge or countercharge in the same case .having one case number or in case of a consolidated resolution involving
two or more criminal cases with two or more docket numbers, the caption
shall also contain said information.
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
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The preliminary investigation of complaints shall be terminated and resolved within a period of sixty (60) days from the date of assignment to the
investigating prosecutor, with a maximum of two (2) IS-day extensions in the
following cases:
a.
b.
c.
d
e.
f.
capital offenses
complex issues
with counter-charges
consolidation of related complaints
reassigmnent
otherurgentlvalid reasons
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the full name and aliases, if any, and address of the accused;
the age and date of birth of the complainant or the accused, if eighteen
(18) years of age or below;
the full names and addresses of the parents, custodian or guardian of the
minor complainant or accused, as the case may be;
a. Lack of a Certification
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
information, as a preliminary investigation is not an essential part of
the Information.
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An Information that is filed in court shall, as far as practicable, be accompanied by a copy of the resolution of the investigating prosecutor, the
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
SCRA 192 [1994]).
4. Confidentiality of Resolutions
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parties; or,
2. disapproving the resolution and returning the same to the investigating prosecutor for further appropriate action; or
3. reversing the recommendation of the investigating prosecutor, in which case,
the Chief State/Regional State/Provincial or City Prosecutor
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a. may tile the corresponding Information in court (except the Regional State
Prosecutor); or
b. direct any other state prosecutor or assistant prosecutor, as the case may
be, to do so.
In both instances, there is no more need for the head of office concerned to
conduct another preliminary investigation (Sec. 4, par. 3, Rule 112, supra.).
M. REOPENING OF THE PRELIMINARY INVESTIGATION
After a case under preliminary investigation has been submitted for resolution under the provisions of the preceding section but before the approval and
promulgation of said resolution, the preliminary investigation may, upon motion
of a party, be reopened for the purpose of receiving newly discovered evidence
and/or in cases where respondent has not been notified of the complaint The reopening should be with the prior authorization of the Chief StatelRegional State/
Provincial or City Prosecutor concerned. The preliminary investigation shall be
reopened subject to the following conditions:
1. the motion is verified and a copy thereof furnished the opposing party;
2. the motion is accompanied with the newly discovered evidence and/or respondent's counter-affidavit; and,
3. the motion sufficiently and satisfactorily shows valid and justifiable reason
for the failure of the movant to submit the newly discovered evidence or the
counter-affidavit during the preliminary investigation.
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1. An Information filed in court shall be supported by the affidavits and counteraffidavits of the parties and their witnesses, together with other supporting
evidence and the resolution on the case (Sec. 7(a), Rule 112, supra.).
2. The record of the preliminary investigation conducted by a prosecutor shall
not form part of the record of the case (Sec. 7(b), Rule 112, supra.).
103
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RELEVANT JURISPRUDENCE
1. The prosecutor is not bound by the qualification of the crime but by the evidence
presented during the preliminary investigation (Orquinaza v. People, G. R. No.
165596, November 17.2005).
2. If, after preliminary investigation, a case is filed in the Court of First Instance
(now the Regional Trial Court), the prosecutor cannot file another Information
charging a different offense based on the same preliminary investigation. He must
conduct another preliminary investigation (Luciano v. Mariano, et. al., 40 SCRA
187).
3. A new preliminary investigation is not, however, necessary after the amendment
of the Information, where there has been no change in the nature of the crime
charged which is rebellion, and moreover, petitioner, who was already in custody
when the amended Information was filed, should have asked, but did not, for a
re-investigation of said case within the period offive (5) days from the time he
leamed of the amended Information (Lava v. Gonzales, 11 SCRA 650 [1964J).
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
to infringement of trademarks (Sy Lim v. CA, 113 SCRA 334).
5. Where only a formal amendment was involved - such as frustrated murder to
consummated murder where the death of the victim supervened, a preliminary
investigation is unnecessary and cannot be demanded by the accused (Teehankee,
Jr. v. Madayag, 207 SCRA 134).
6. It is a fundamental principle that when on its face, the Information is null and
void for lack of authority to file the same, it cannot be cured nor resurrected by an
.amendment. Another preliminary investigation must be undertaken and thereafter, based on the evidence adduced, a new Information should be filed (Cruz, Sr.,
v. Sandiganbayan, 194 SCRA 474).
7. Substantial adherence to the requirements of the law governing the conduct of
preliminary investigations, including substantial compliance with the time limitation prescribed by the law for the resolution of the case by the prosecutor, is part
ofthe procedural due process constitutionally guaranteed by the fundamental law.
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
SCRA 70).
8. The principle is not, however, applicable where the delay in the termination of the
preliminary investigation cannot be imputed solely to the prosecution but because
of incidents which are attributable to the accused and his counsel (Gonzales v.
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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
462), that the Secretary of Justice, as far as practicable, should refrain from entertaining a petition for review or appeal from the action of the prosecutor when
the Complaint or Information has been filed in court. The matter should be left
entirely for the determination of the Court.
106
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DATE RECEIVED:
(stamped and initialed):
TIme Received:
Receiving Staff:
~-
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LAW/S VIOLATED:
PLACE of COMMISSION:
1. Has a similar complaint been filed before any other office? ' YES _ NO_
2. Is this complaint in the nature of a counter-charge?" YES
NO
Ifyes, indicate details below.
3. Is this complaint related to another case before this office?'
YES
NO
If yes, indicate details below.
I.S. No.:
Handling Prosecutor:
-=-
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C E R T I F1 CAT I 0 N*
I CERTIFY, under oath, that all the information on this sheet are true and correct to the best of my
knowledge and belief, that I have not commenced any action or filed any claim involving the same issues
in any court, tribunal, or quasi-judicial agency, and that if I should thereafter learn that a similar action
has been filed and/or is pending, I shall report that fact to this Honorable Office within five (5) days from
knowledge thereof,
day of
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Complainant,
I.S. No.
For:
versus -
Respondent.
x----------------------------------------------------------------------------------------------------------------------ox
RESOLUTION
This refers to the above-entitled complaint for
respondent
_
filed by
against
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 complaint}
110
the offense charged in the complaint was committed outside the territorial jurisdiction of this Office; (Brief explanation)
at the time of the filing of the complaint, the offense charged therein had already
prescribed; (Brief explanation)
the complainant is not authorized under the provisions ofpertinent laws to file the
complaint; (Brief explanation)
_ _ _ _ _ _ _ (place),
lNVESTIGATING PROSECUTOR
APPROVED:
IP
(date) .
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(Head of Office)
Copy Furnished:
All Parties and/or their counsel
Address
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111
-_._--
Complamant/s,
1.S. No.
For:
-versus-
_
_
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 aboveentitled complaint to be held at the time and place-above-specified
,
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,
INVESTIGATING PROSECUTOR
112
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Complainant/s,
1.S, No.
For:
-versus-
Respondent's.
x-----------------------------------------x
. SUBPOENA TO RESPONDENT/S
TO:
GREETINGS:
Under and by virtue of the authority vested in me by law, you are hereby directed to submit
your counter-affidavit and other supporting documents or affidavits ofyour witness/es, if any, to be
sworn to before me on
, 200_ at _ _ a.mzp.m, Attached is a copy
of the complaint and other evidence submitted by the complainant.
You are hereby WARNED that failure on your part to comply with the subpoena shall
be considered as a waiver of your right to present your defense and the case shall be considered
submitted for resolution based on the evidence on record.
WITNESS MY HAND this
_ _ _ _ _ _, Philippines.
day of
200
at
INVESTIGATING PROSECUTOR
,
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Complainant/s,
LS. No.
For:
-versus-
_
_
Respondent/s.
x------------------------------------------x
SUBPOENA TO RESPONDENT
(To obtain copies of the complaint and other supporting evidence)
TO:
GREETINGS:
In connection with the above-entitled complaint, and by virtue of the authority vested in
me by law, you are hereby directed to obtain, personally or through your representative, copies of
the complaint, supporting affidavits and other evidence submitted by the complainant at
_
_ _ _ _ _ _ _ _ _ _ _ _-', on
,200_ at _ _ a.mzp.m.
You or your representative are/is likewise entitled to examine all other evidence submitted by
complainant on the date and time herein specified.
You are hereby WARNED that failure on your part to comply with the subpoena shall be
considered as a waiver of 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.
WITNESS MY HAND this
_ _ _ _ _ _ _ _, Philippines.
day of
200_ at
INVESTIGATING PROSECUTOR
114
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For:
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Respondent.
x------------------------------"----------x
ORDER
Considering the difficult and/or complicated questions of fact and of law involved in the
instant case, the parties are hereby required to simultaneously submit their respective memoranda
within ten (10) days from receipt hereof. After the lapse of the said period, this case shall be
deemed submitted for resolution.
SO ORDERED.
_______, Date.
INVESTIGATING PROSECUTOR
l1S
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Complainant/s,
1.S. No.
For:
-versus-
_
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Respondent/s.
)[------------------------------------------x
SUBPOENA FOR CLARIFICATORY HEARING
TO:
TO:
TO:
(Witness)
GREETINGS:
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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
_
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; 200_ at _ _
. a.mJp.m., for the
conduct of clarificatory questioning where only the undersigned can ask questions. You are hereby
informed of your right to be represented by counsel in the said hearing. If you so desire, you may
submit written questions to the undersigned that may be asked of the party/ies and/or witness/es.
WITNESS MY HAND this
_ _ _ _ _ _., Philippines.
day of
, 200
at
INVESTIGATING PROSECUTOR
116
Complainant,
LS, No,
- versus -
For:
Respondent,
x-------------------------------------- X
Complainant,
1,S, No,
- versus -
For:
Respondent,
x---------------------------------x
ORDER OF CONSOLIDATION
_ _ _ (Date)
117
(Date)
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.
Copy furnished:
All Concerned.
HI.!i '
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For:
- versus -
Respondent.
x-------------------------------------------x
RESOLUTION
This resolves the above-entitled complaint for violation of Sec. 19(b), paragraphs (I) and
(2), ofRA 8239, otherwise known as the "Philippine Passport Act of 1996", filed by the Department
of Foreign Affairs against
a.k.a.
_
Record shows that on April 4, 2007, respondent
went to the Inter-Agency
Committee Against Passport Irregularities (rCP!) Secretariat and voluntarily surrendered Passport
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
admitted having bought the birth certificate of one a.k.a. somewhere in Libertad, Pasay City for
P8,000.00, sometime in 2001. She, then, went to the DFA to apply for a passport using the said
birth certificate, pursuant to which she was issued a passport in the name of a.k.a.. She did so in
order for her to be able to again work in Taiwan after her employment contract in the said country
had expired in 1999. Using the said passport, she got employed in Taiwan in 2001 and finished
the said contract in 2004. She was hired by another company in Taiwan in 2004, which contract
she finished in March this year. Meanwhile, she met a Taiwanese boyfriend who knew about her
change of name. As they decided to get married, they applied for legal capacity from the Taipei
Economic and Cultural Office (TEeO). In the course thereof, she was asked to get a clearance
from the DFAregarding her change of name.
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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 respondent personally applied for Passport Nos. HHI6090 1 and MM860451 under the name a.k.a.,
Revised Manuai for Prosecutors
119
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.
Date & Place ofIssue:
BB846749
25 January 1997/Manila
Passport No.
Date & Place ofIssue:
VV0166339
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 authored 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.
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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
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
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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
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.
, 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
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
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.
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
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
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
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
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.
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
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.
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We now resolve.
Evidence adduced likewise sufficiently shows that after securing Passport No. MM86045l
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
arrived in and entered the Philippines from Taipei. All these acts fall under the second paragraph
of Sec. 19(b), RA 8239, which penalizes any use or attempt to use a passport that has been secured
and issued by means of any false statement. Again, inasmuch as RA 8239 is malum prohibitum,
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the offender is criminally liable for every single violation of the law. In this case, respondent is
liable for three (3) counts of violation of Sec. 19(b)(2) 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
Investigating Prosecutor
RECOMMENDING APPROVAL:
A P PRO VE D:
Copy Furnished:
DIRECTOR
Passport Division
1Jt'
Sample Information 1
Republic of the Philippines
REGIONAL TRIAL COURT
National Capital Judicial Region
Branch
. Pasay City
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(1.S. No.
For: Violation of Sec. 19(b)(1)
ofRA8239
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-At-Large(c/o address),
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Accused.
INFORMATION
The undersigned State/Assistant Provincial!Assistant City Prosecutor, hereby accuses
_ _ _ _ _ _ _ a.k.a
with violation of Sec. 19(b), paragraph 1, of RA
8239, otherwise known as "The Philippine Passport Act of 1996", committed as follows:
That on April 19, 2004 or thereabout, at the Department of Foreign Affairs,
Roxas Blvd., Pasay City, Metro Manila, and within the jurisdiction 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.
Investigating Prosecutor
123
CERTIFICATION
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Investigating Prosecutor
this
day
of
WITNESSES:
1.
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-At-Large(c/ 0 address)
Accused.
,"------x
INFORMATION
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:
That on October 13, 2004 or thereabout, in Pasay City, Metro Manila, and
within the jurisdiction of this Honorable Court, the above-named accused did then
and there knowingly, unlawfully and criminally use or attempt to use, in her departure to Taipei, Passport No. MM860451 in the name of a.k.a, born on February
21, 1978 in Marikina, which passport was secured by the said accused by means of
false statements in the application for passport, in violation ofRA 8239 as well as
the rules and regulations prescribed in relation thereto.
CONTRARY TO LAW.
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125
CERTIFICATION
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Investigating Prosecutor
SUBSCRIBED
AND
SWORN
to
before
me
on
this
day
of
WITNESSES:
1.
1 !'
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Enclosures:
Approved Resolution dated December 7, 2007
with attachments
Complaint-Affidavit of
dated September 11, 2007
Counter-affidavit of
126
Sample Information 3
Republic of the Philippines
REGIONAL TRIAL COURT
National Capital Judicial Region
Branch
, Pasay City
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a.k.a.
-At-Large(c/o address),
II
Accused.
x------------x
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INFORMATION
The undersigned State!Assistant Provincial/Assistant City Prosecutor, hereby accuses _
a.k.a.
with violation of Sec. 19(b),
paragraph 2, of RA 8239, otherwise known as "The Philippine Passport Act of 1996", committed
as follows:
---=
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
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and there knowingly, unlawfully and criminally use or attempt to use, in her arrival
in, and entry to, the Philippines from Taipei, Passport No. MM860451 in the name
of a.k.a., born on February 21, 1978 in Marikina, which passport was secured by
the said accused by means of false statements in the application for passport, in
violation of RA 8239 as well as the rules and regulations prescribed in relation
thereto.
CONTRARY TO LAW.
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continued, next page>
127
-----------
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CERTlFICATION
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Investigating Prosecutor
SUBSCRIBED Al'ID SWORN to before me on
_ _ _ _ _ _ _ _ _ _ _ in the City of Manila, Philippines.
this
day
of
WITNESSES:
1.
_
cio Secretariat, Inter-Agency Committee
Against Passport Irregularities
Deparnnent of Foreign Affairs
Roxas Blvd., Pasay City
2. THE RECORDS CUSTODIAl'!
(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
-
128
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Sample Information 4
Republic of the Philippines
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_ _ _ _a.k.a.
-At-Large(c/o address),
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Accused.
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x-
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INFORMATION
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
as follows:
That on October 7, 2004, or thereabout, in Makati City, Metro Manila, and
within the jurisdiction of this Honorable Court, the above-named accused did then
and there knowingly, unlawfully and criminally use or attempt to use Passport No.
MM860451 in the name of a.k.a., born on February 21,1978 in Marikina, in her application for visa to Taipei, which Passport No. MM860451 was secured by the said
accused by means of false statements in the application for passport, in violation of
RA 8239 as well as the rules and regulations prescribed in relation thereto.
CONTRARY TO LAW.
City of Manila for Pasay City, December 7,2007,
Investigating Prosecutor
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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 opportunity to submit controverting evidence. I further certify that the filing of this Information is
with the prior authority and approval of the Chief State/ProvincialJCity Prosecutor.
Investigating Prosecutor
SUBSCRIBED AND SWORN to before me on
_ _ _ _ _ _ _ _ _ _ _ in the City of Manila, Philippines.
this
day
of
WITNESSES:
1.
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
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.
(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 suspension ofthis preliminary investigation.
Accordingly, the preliminary investigation
III
IS
hereby
SUSPENDED.
SO ORDERED.
_ _ _ _ _ _"Date.
continued, next page>
131
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RECOMMENDING APPROVAL:
APPROVED:
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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
133
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PRELIMINARY INVESTIGATION
(within 60 to 90 days)
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A. PRINCIPLES
1. Arraignment, being a mandatory requirement, necessitates the presence of the accused
in court who should personally enter his plea after the reading of the Information in a
language or dialect understandable to him.
2_ Before, during and after the arraignment, the trial prosecutor has well- defined duties to
perform.
3. The filing of a petition for review affects the arraignment of the accused in court.
B.CONCEPTS
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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).
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,
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).
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PROCEDURE
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Republic Act No. 4908, which requires that in criminal cases where the complainant is about to depart from the Philippines with no de:finite date ofreturn,
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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
accused or other grounds beyond the control of the court.
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The trial prosecutor shall prepare his witnesses for trial. Government witnesses,
e.g. medico-legal officers, chemists, forensic experts, examiners etc. should, as
much as practicable, be presented in accordance with the logical and chronological
sequence ofthe technical aspects to be proved.
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2. The trial prosecutor may dispense with the presentation of evidence when the accused
pleads guilty to a lesser offense which is not a capital offense unless the court directs
him to do so for purposes of determining the penalty to be imposed.
3. The trial prosecutor, with the consent of the offended party, may motu proprio agree
to the offer of the accused to plead guilty to a lesser offense if the penalty imposable therefor is prision correccional (maximum of six [6] years) or less or a fine not
exceeding Php12,OOO.OO.
138
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However, the plea of guilty to a lesser offense may not be allowed where it so contravenes logic and common sense as to be unconscionable, thereby resulting in injustice. Thus, where the offense charged is homicide, a plea of guilty to a lesser offense
of frustrated or attempted homicide may not be allowed, since the fact of death cannot
be reconciled with the plea of guilty to frustrated or attempted homicide. Homicide
necessarily produces death, while frustrated or attempted homicide does not (Amatan v.
Aujero, 248 SCRA 511 [1995J)'
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m. RELEVANT JURISPRUDENCE
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
SCRA 685).
2. The period of suspension shall not exceed sixty (60) days counted from the filing of the
petition with the reviewing office. (Sec. 11, par.(c), Rule 116, Rev. Rules on criminal
procedure). However, the court may still suspend the trial pending final resolution by the
DOJ (Luman law v. Judge Eduardo Peralta, Jr; G. R. No. 164953, February 13,2006).
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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
for the crime charged, notwithstanding the presence of mitigating circumstances.
The lesser offense shall also be one that is necessarily related to the offense charged
or the offense must belong to the same classification or title under the Revised Penal
Code or the relevant special laws (DOJ Circular No. 55, dated 31 July 1990).
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4. When the penalty imposable for the offense charged is prision mayor (at least six
[6] years and one [1] day or higher) or a fine exceeding PhpI2,000.OO, the trial
prosecutor shall first submit his comment/recommendation to the Provincial or City
Prosecutor or'to the Chief State Prosecutor, as the case may be, for approval. If the
recommendation is approved in writing, the trial prosecutor, may, with the consent
of the offended party, agree to a plea of guilty to a lesser offense. For this purpose,
the Chief State Prosecutor or the Provincial or City Prosecutor concerned shall act on
the recommendation of the trial prosecutor within forty-eight (48) hours from receipt
thereof. In no case shall the subject plea to a lesser offense be allowed without the
written approval of the above respective heads of office.
.."
139
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.
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.
140
EVIDENCE
OF
THE
m,
NON-APPEARAi~CEAT
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.)
141
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The prosecutor shall bear in mind that in the course of the trial, any stipulations/admissions entered into during the pre-trial will help him prove his case
beyond reasonable doubt and that every act or incident should be proved by the
testimony of qualified and competent witnesses.
I.
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.
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).
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
of due process (People v. Judge Santiago, 174 SCRA 143).
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CONCEPTS
A. PURPOSE OF BAIL
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The purpose ofbail is to entitle the accused to provisional liberty pending trial
(Bravo, Jr. v, Borja, 134 SCRA 466 [1985]).
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1. The basis for determining bail is the penalty prescribed by law for the offense
charged and not the penalty actually imposed for the accused in view of the
attendant circumstances. (Bravo v. Borja, supra.)
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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
evidence of the aggravating and mitigating circumstances. There would then
be a need for a complete triaL after which the judge would be just about ready
to render a decision in the case. Such procedure would defeat the purpose
of bail, which is to entitle the accused to provisional liberty pending trial.
(Ibid.)
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143
5, when he is found to be a recidivist or a habitual delinquent or has been previously convicted for an offense to which the law or ordinance attaches an equal
or greater penalty or for two or more offense to which it attaches a lighter
penalty;
6. when he commits the offense while on parole or under conditional pardon;
and
7. when the accused has previously been pardoned by the municipal or city
mayor for 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 sentenced, he shall be released immediately without prejudice to the continuation of
the trial thereof or the proceedings on appeal. In case the maximum penalty to
which the accused may be sentenced is destierro, he shall be released after thirty
(30) days of preventive imprisonment.
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A person in custody for a period equal to or more than the minimum of the
principal penalty prescribed for the offense charged without application of the
Indeterminate Sentence Law or any modifying circumstance, shall be released on
a reduced bail or on his own recognizance, at the discretion ofthe court. (Sec. 16,
Rule 114; supra.)
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c. That he committed the offense while under probation, parole or conditional pardon;
d. That the circumstances of his case indicate the probability of flight if
released on bail; or
e. That there is undue risk that he may commit another crime during the
pendency of the appeal.
3. Ifupon conviction, the Regional Trial Court imposes the penalty of imprisonment
in excess of six (6) years, but not exceeding twenty (20) years, the accused shall
be denied bailor his bail shall be cancelled, upon a showing by the prosecution,
with notice to the accused, of any of the foregoing circumstances.
4. Ifnone of the circumstances enumerated above exists, the grant of bail becomes
a matter of right. (Sec. 5, Rule 114, supra.)
C. RIGHT TO NOTICE, MANDATORY
The duty of the prosecutor to recommend bail entitles him to a notice every
time bail is applied for, even if bail is a matter of right. (Lavides v. CA, GR No.
;
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When bail is a matter of discretion, it is the right of the prosecutor to be notified so he could present evidence to prove that the evidence of guilt ofthe accused
is strong. Denial of such notice deprives the State of its right to be heard, thereby
making the bail proceedings void.
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A person lawfully arrested and detained but who has not yet been formally
charged in court can seek his provisional release through the filing of an application for bail or release on recognizance.
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Guide as his primary guide in recommending bail.
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during the hearing on the application for bail:
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7. the fact that respondent/accused under detention was a fugitive from justice
when apprehended; and
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8. other factors affecting the probability of the accused appearing at the trial.
(Sec. 6. Rule n 4, RevisedRules on Criminal Procedure; DOJ Circular No.4,
series of1996)
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To achieve uniformity in the amount ofbaii to be recommended, the following rules shall be observed:
1. Where the penalty is reclusion perpetua, life imprisomnent, reclusion perpetua to death Dr death, bail is not a matter of right; hence, it shall not be
recommended.
1/
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
applying the following rules:
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6. forfeiture ofother bonds and pendency ofother cases wherein the respondent/
accused under detention is under bond;
a. where the penalty is reclusion temporal (regardless of period) to reclusion perpetua, bail shall be computed based on the maximum of reclusion
temporal.
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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
penalty is death, reclusion perpetua or life imprisonment (Tabao v. Espino. 257
SCRA 298 [1996]). He must therefore be prepared for such a hearing.
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An exception to the rule on non-bailability of offenses punishable by reclusion perpetua, life imprisonment or death is when the accused is a minor since
minority is a special mitigating circumstance that allows the imposition of the
penalty one degree lower than that prescribed by law (Bravo v. Borja, 134 SCRA
466 [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
(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.
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Whether the motion for bail of a defendant who is in custody for an offense
punishable by reclusion perpetua, life imprisonment or death be resolved in a
summary proceeding or in the course of a regular trial, the prosecution must be
given an opportunity to present, within a reasonable time, all the evidence that
it may desire to introduce before the court should resolve the motion for bail
(People v. San Diego, 26 SCRA 522 [1968J).
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In case a petition for bail is filed by the accused and the court orders a continuous trial of the case, the public prosecutor shall be prepared to present his
principal witnesses. Where there are several accused and one or two filed a
petition to bail, the trial prosecutor shall, before the presentation of his first witness, manifest in open court that the evidence to be presented in the hearing of
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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 conviction.
150
3. In case the Court opts to place the accused under the custody of the responsible person in the community, the prosecutor should see to it that:
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a. such person under whose custody the accused is placed, shall execute his
own affidavit stating his willingness to accept custody of the accused;
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b. the accused shall also include in his own affidavit mentioned above, a
statement that
he binds himself to accept the responsibility of the
citizen so appointed by the court as his custodian.
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1. The Court should not even allow a motion for bail to be set for hearing unless it
has acquired jurisdiction over the person of the accused and the case by its filing
in Court. (Dinapol v. Baldonado, 225 SCRA 110)
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2. In order that a person can invoke his right to bail, it is not necessary that he
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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
he is charged with a capital offense and evidence of his guilt is strong. ( Herras
Teehankee v. Rovira, 75 Phil. 634)
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3. Where the accused was charged for murder without the benefit of a preliminary
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investigation and trial had already began over his objections, the accused remains
entitled to be released on bail as a matter of right pending the preliminary investigation. Should the evidence already of record concerning the guilt of the accused
be, in the reasonable belief of the prosecutor, strong, the prosecutor may move in
the trial court for cancellation of the bail. (Vide Tolentino v. Caano, Jn, 322 SCRA
559)
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If the investigating judge is satisfied that there is probable cause but did not issue
the warrant of arrest contrary to the prosecutor/s belief that there is a need to place
the accused under custody, the speedy and adequate remedy of the prosecutor is to
immediately file the Information so that the Regional Trial Court judge may issue
the warrant for the arrest of the accused. (Samulde v. Salvani, Jn, 165 SCRA 724
[1988])
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II.
1. The grounds of suspicion are reasonable when, in the absence of actual belief
of the arresting officers, the suspicion that the person to be arrested is probably
guilty of committing the offense, is based on actual facts, i. e. supported by circumstances sufficiently strong in themselves to create the probable cause of guilt
of the person to be arrested. A reasonable suspicion therefore must be founded on
probable cause, coupled "with good faith on the part of the peace officers making
the arrest." (People v. Doria, 301 SCRA 668)
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2. An arrest signifies restraint on person, depriving one of his own will and liberty,
binding him to become obedient to the will of the law. (Larranaga v. Court of
Appeals, 287 SCRA 589)
3. A letter-invitation is equivalent to arrest. Where the invitation comes from
a powerful group composed predominantly of ranking military officers and the
designated interrogation site as a military camp, this is obviously a command or
an order of arrest. (Sanchez v. Demetriou, 227 SCRA 627 [1993].
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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)
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GENERAL RULES
A. CONCEPT
A trial is a judicial examination of the claims at issue in a case which is presented by the prosecution and defense to enable the court to arrive at a judgment
pronouncing either the guilt or innocence of the accused (U.S. v. Raymundo, 14
Phil. 416 [1909])
The object of a trial is to mete out justice, and to convict the guilty and
protect the innocent. Thus, the trial should be a search for the truth and not
a contest over technicalities and must be conducted under such rules as will
protect the innocent (23 C. J S. 274).
The trial prosecutor shall always be prepared to conduct the prosecution
with his witnesses who shall be subpoenaed well in advance of the scheduled
trial dates. No postponement of the trial or other proceedings of a criminal case
shall be initiated or caused by the trial prosecutor except in instances where the
postponement is occasioned by the absence of material witnesses or for other
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.
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Witnesses who will testify for the first time shall be afforded the opportunity
to observe criminal proceedings in court to help them overcome their anxiety,
excitement and tension.
As far as practicable, crucial witnesses shall be summoned by the trial prosecutor before the actual trial dates for briefing on their testimony and demeanor
during the trial for orderly and efficient presentation in court.
C. OFFER OF EXHIBITS
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The trial prosecutor shall safely keep his documentary and other physical
evidence and prepare a list thereof in the order they have been marked as exhibits, identifying each by letter or number, describing it briefly, and stating its
specific purpose or purposes.
D. DEFENSE EVIDENCE
1. Before reception of evidence for the defense starts, the trial prosecutor shall
ask from the adverse counsel the number of witnesses he intends to present
and the nature of their testimony.
2. If the names of the defense witnesses are disclosed, the trial prosecutor
shall elicit from reliable sources the whereabouts of these witnesses, their
moral character, background, reasons for testifying and relationship with
the accused, among other things, to enable him to have a clear view of the
defense of the accused.
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1. There is absolute necessity for the testimony ofthe accused whose discharge
is requested (Sec. 17(a), Rule 119, Rules on Criminal Procedure).
2. There is no other direct evidence available for the proper prosecution ofthe
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
testimony would simply corroborate or otherwise strengthen the evidence
in the hands of the prosecution (people v. Borja, et. al.i06 Phil.i88).
3. The testimony ofsaid accused can be substantially corroborated in material
points.
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4. Said accused does not appear to be the most guilty (Lugtu v. Court of
Appeals, 183 SCRA 388),
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moral turpitude.
F. ADMISSION TO THE WITNESS PROTECTION PROGRAM OF AN
ACCUSED WHO HAS BEEN DISCHARGED
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The trial prosecutor shall recommend the admission to the Witness Protection
Program of the following persons:
1. Any person who has witnessed or has knowledge of or information on the
commission of a crime and has testified or is testifying or is about to testify
before any judicial or quasi-judicial body, or before any investigating authority, Provided, that:
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he or any member of his family within the second civil degree of consanguinity or affinity is subjected to threats to his life or bodily injury or
there is a likelihood that he will be killed, forced, intimidated, harassed
or corrupted to prevent him from testifying, or to testify falsely or evasively, because or on account of his testimony; and
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2. Any person who has participated in the commission of a crime and desires
to be a witness for the State, whenever the following circumstances are
present:
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he has not at any time been convicted of any crime involving moral
turpitude.
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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.
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B. ORDER OF TRIAL
Trial shall proceed in the following order pursuant to Sec. 11, Rule119 of
the Revised Rules on Criminal Procedure:
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1. The prosecution shall present evidence to prove the charge and, in the proper
case, the civil liability.
2. The accused may present evidence to prove his defense, and damages, if
any, arising from the issuance of any provisional remedy in the case.
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3. The panies may then respectively present rebutting evidence only, unless
the COlin, in furtherance of justice, permits them to present additional evidence bearing upon the main issue.
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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.
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5. However, when the accused admits the act or omission charged in the
Complaint or Information but interposes a lawful defense, the order of trial
may be modified accordingly.
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C. PRESENTATION OF WITNESSES
The order in the presentation of witnesses shall, as far as practicable, conform to the logical sequence of events obtaining in the case on trial in order to
present a clear, organized and coherent picture to the coun of the prosecution's
evidence.
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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-inchief. The recall of a witness who already testified during the evidence-in-chief
presentation merely to refute what a defense witness may have stated during his
defense testimony is not generally rebuttal evidence. Where there is nothing to
refute, rebuttal evidence is unnecessary.
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The prosecutor shall endeavor to secure well in advance all available information about a defense witness in order to prepare for an effective crossexamination. Where the testimony of a defense witness bears no effect on the
evidence of the prosecution, a cross-examination need not be conducted.
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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
provide for secondary evidence consisting of photographs, or pictures of the
physical and real evidence, which evidence shall be attached to the records of
the case.
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3. The trial of an accessory can proceed without awaiting the result of the separate
charge against the principal. The corresponding responsibilities of the principal
accomplice and accessory are distinct from each other. As long as the commission of the offense can be duly established in evidence, the determination of the
liability of the accomplice or accessory can proceed independently of that of the
principal. (Vino v. People, 178 SCRA 626.);
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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:
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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
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 coaccused in the Information, for the prosecutor is free to produce as a witness
anyone whom he believes can testify to the truth of the crime charged (U.s. v.
Enriquez, 40 Phil. 603);
d. the failure to follow the requirements of the rule relative to the use of a person, 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 others rather than himself. Thus, even though a court may get the statement of a
discharged accused that other persons were engaged in the crime it is unsafe to
accept, without corroborating evidence, his statements concerning the relative
blame to be attached to different members of his gang. (People v. Mandagan, 52
Phil. 62 [1928});
10. Meaning of "not the most guilty" is "not the least guilty" (People v. Court of
Appeals, 131 SCRA 107 [1984}). The rule does not require that he be the "least
guilty" but only that he not be "the most guilty". (People v. Faltado, 84 Phil.
89).
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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
Courts, Municipal Trial Courts and Municipal Circuit Trial Courts shall be
filed with the Office of the Chief State Prosecutor. The resolution ofthe Chief
State Prosecutor is final.
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The provisions of the preceding paragraphs on the finality of the resolution of the Chief State Prosecutor and the Regional State Prosecutor notwithstanding, the Secretary of Justice may, in the interest of justice and pursuant
to his residual authority of supervision and control over the prosecutors of
the Department of Justice, order the review by his office of the resolutions
of the Chief State Prosecutor and the Regional State Prosecutors in the cases
appealed to the them.
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GENERAL RULES
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resolution denying the motion for reconsideration. Only one (1) motion for reconsideration shall be entertained.
D. FORMAl"ID CONTENTS
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5. a clear and concise statement of the facts, the assignment of errors, and the
legal basis of the appeal/petition for review;
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1. APPELLEE'S COMMENT
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
proof of service of the comment to the appellant. If no comment is filed, the case
shall be resolved on the basis of the appeal/petition.
J. SUMMARY ACTION
The Secretary of Justice/Chief State Prosecutor/Regional State Prosecutor
may dismiss the appeal outright for being patently without merit or manifestly intended for delay, or when the issues raised therein are too unsubstantial to require
consideration. If an Information has been filed in court, the appeal/petition for
review shall not be given due course if the accused has already been arraigned.
K. WITHDRAWAL OF THE APPEAL / PETITION FOR REVIEW
The appeal/petition for review may be withdrawn at any time before it is
finally resolved, in which case the questioned resolution shall stand as if no appeal/petition has been taken.
164
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If the case is pending appeal and an Information has been filed in court,
the appellant shall inform the court of the filing of a motion for reinvestigation with the Office of the Secretary/Regional State Prosecutor and shall
ask the court to defer proceedings. The reinvestigation of the case shall be
conducted by the prosecution office from which the appeal was taken. (see
Marcelo vs. CA., 235 SCRA 39 [1994]; Roberts vs, CA., 254 SCRA 207
[1996]; Dimatulac vs. Vilon, 297 SCRA 679 [1998]; Solar Entertainment vs.
How, 338 SCRA 511 [2000]; Community Rural Bank ofGuimba vs. Talavera,
455 SCRA 34 [2005])
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
take place in the Office of the Prosecutor from which the petition was taken.
M. DISPOSITlON OF THE APPEALIPETTION FOR REVIEW
The Secretary of Justice!Chief State Prosecutor/Regional State Prosecutor
may reverse, affirm or modify the appealed resolution. They may, motu proprio
or on motion of the appellee, dismiss outright the appeal/petition on any of the
following grounds:
1. that the petition was filed beyond the period prescribed in Sec. C hereof;
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4. that the procedure or requirements herein prescribed have not been complied
with;
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5. that the questioned resolution is interlocutory in nature, except when it suspends the proceedings based on the alleged existence of prejudicial question;
6. that the accused had already been arraigned when the appeal/petition for review was taken, or was arraigned during the pendency of the appeal/petition;
or,
7. that other legal or factual grounds exist to warrant a dismissal.
II.
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RELEVANT JURISPRUDENCE
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(and naturally of his/her alter ego) to interfere in the exercise of such discretion as
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).
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PART XI.
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MATTERS
1. Violation ofPD 1866, as amended by RA 8294, codifying the laws on illegalJunlawful possession, manufacture, dealing in, acquisition or disposition of firearms,
ammunition and explosives;
2. Crimes against public order (e.g. rebellion, sedition, etc.) defined and penalized
in the Revised Penal Code;
3. Violations ofRANo. 6435, "The Dangerous Drugs Law", as amended (now RA
9165 otherwise known as the Comprehensive Dangerous Act of 2002);
4. Violation ofRA No. 6539, "The Anti-Carnapping Law";
5. Violations of Sees, 3601 to 3603, inclusive, and Secs. 3605 to 3610, inclusive of
the Tariff and Customs;
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MISCELLA1~OUS
6. Bank frauds and frauds against public treasury and other crimes involving economic sabotage.
II.
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2. Unless the Ombudsman, under its constitutional mandate, finds reason to believe
otherwise, offenses which are not in relation to office and cognizable by the regular courts shall be investigated and prosecuted by the Office of the Provincial/City
Prosecutor which shall rule thereon with finality.
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offenses against the public officers and employees, the Offices of the Provincial/
City Prosecutor shall submit to the Office of the Ombudsman a monthly report
of all complaints filed with their respective offices against public officers and
employees.
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d. who has once been on probation under Presidential Decree No. 968 (Sec.
9, PD 968).
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In case one who is placed on probation is arrested for a serious violation ofthe
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.).
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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
applicable to the defendant (Sec 15, ibid., as amended by PD 1257)
V.
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a.
b.'
c.
conduct the examination of the child in the presence and with the assistance ofhis/her parents, guardian, custodian and/or authorized representative;
d.
e.
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,
and reflect the same in the record of the case/proceedings; and
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The inquest prosecutor shall determine the age of the child on the basis
of:
a. documentary proof such as, but not limited to, birth certificates, baptismal
certificates, school record, dental chan, etc;
b. testimony of parent/guardian if not controverted; or,
c. physical appearance of the child.
If the child is fifteen (15) years of age or under, the complaint shall be
dismissed immediately.
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If the child is over fifteen (15) 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
did not act With discernment, he shall:
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The inquest prosecutor shall reflect in the record of the case/proceedings the
name, identity and address, age and date of birth, of the child as well as the name
and address of the parentis, guardian, custodian and/or authorized representative.
B. PRELlMINARY INVESTIGATIONS
The prosecutor shall conduct a preliminary investigation only in the following instances:
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When the child, the parent or guardian does not agree to diversion;
When diversion is not appropriate for the child, after considering the .assessment and recommendation of the social worker; and
When the child fails to comply with the terms and conditions of the contract
of diversion. (Sec. 26, chapter 2, RA 9344)
Upon serving the subpoena and the affidavit of complaint, the prosecutor
shall notify the Public Attorneys Office (PAO) of such service as well as personal
information and place of detention of the child (Sec. 33, chapter 3. RA 9344).
1. If the child is the victim
174
a.
conduct the examination of the child in the presence and with the
assistance of his/her parentis, guardian, custodian and/or authorized
representative or social worker:
b.
c.
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 custodian are dilly reflected in the record of the case.
Revised Manual for Prosecutors
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In the course of the preliminary investigation, all summons, subpoenas and notices shall be served on or sent to the child through the parent/s,
guardian, custodian, or authorized representative.
The presence/attendance ofthe child during the preliminary investigation proceedings shall not be required unless it is considered necessary
for clarificatory questioning, in which case, the Investigating Prosecutor
shall:
a.
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.
e.
make sure that the name, address, age and date of birth of the child,
as well as the name and address of the parent/s, guardian or custodian are duly reflected in the record of the case.
Confidentiality of all records should always be maintained.
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
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GUIDELJNES:
1. The complainant is informed that she can request for a female prosecutor or a prosecutor she is comfortable with and if so requested, the
complainant is provided with one.
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8. The facilities used during the interview should be safe to ensure confidentiality:
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9, The prosecutor shall not allow the media to gain access to any information regarding the victim/ survivor. (An adult victim, however,
may choose to speak with the media, preferably with the assistance of
her counsel.) The prosecutor does not disclose the name and personal
circumstances of both parties or any other information that might
reveal their identity to the media or the public, or take any action that
might compromise their privacy.
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12. A trained counselor/social worker should be present during the interviews, if available, to support the victim/survivor.
13. The preliminary investigation should be terminated and resolved in
the earliest possible time.
14. The complainant should be notified of the results ofthe case.
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The prosecutor, as far as practicable, should check the conduct of the surveillance needed to support the filing of a case (police/Nlsl agencies/investigators conduct the necessary surveillance for sex trafficking cases. e.g. in massage
parlors, bar strips, modeling studios, escort services).
Revised Manual for Prosecutors
177
C. PROSECUTION GUIDELINES:
}. The "Speedy Trial Act" should be strictly observed.
2. The Rules on Examination of Child Witnesses should be applied in handling VAWC and trafficking cases involving children. (please refer to the
Manual for Prosecutors on Handling Child-Related Cases)
3. As far as practicable, the trial of the case should be handled by one and
the same prosecutor.
4. Confidentiality of the trial should be maintained.
5. The complainant should be accompanied by or referred to a trained counselor/social worker in the course of the trial, if necessary.
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.
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I. Draft a petition clearly stating the facts of the case, and the law and jurisprudence 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.
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The certified true copy must be accompanied by a certification accomplished by the proper clerk of court or by his duly authorized representative
or by the proper officer of the court, tribunal, board commission or office
involved, or by his duly authorized representative.
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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
other tribunal or agency.
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1. If the Chief State Prosecutor finds no merit in the request to file a petition for
certiorari, he denies the request and informs the head of office of the requesting trial prosecutor of such denial.
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2. Forward the draft petition to the Office of the Chief State Prosecutor for
evaluation within fifteen (15) days from receipt of the assailed decision or
order/judgment, with a request that the same be endorsed to the Office of the
Solicitor General.
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2. If he finds merit in the petition, he shall endorse the draft petition together
with the attachments within ten (10) days from receipt of the draft petition, to
the Office of the Solicitor General for appropriate action.
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For the first and second modes of violation of Sec. 77 (Cutting, gathering
and/or collecting timber or other forest products without license), the following pieces of evidence are crucial:
Proof that the accused failed to show cutting license or permit when
apprehended and asked to present the authority to cut;
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Inventory and tally sheet, stand and stock table of timber or forest
products destroyed and the corresponding forest charges to be used as
basis in imposing penalty;
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Possession by the violator at the time of the apprehension of instruments, equipment and tools such as power saws, hand saws, bolos and
digging tools such as shovels, grub hoes, rakes, etc.;
Fallen trees, logs, lumber, flitches and other woody parts of damaged
vegetation; and
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Survey report and sketch plan of the surveyed area by the investigating officer;
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2. POINTERS
It is suggested that the confiscated forest/wood products under court litigation should be allowed for disposal to save their economic value. Conformably,
a motion should be made with the court for an appropriate ruling such that
the confiscated forest/wood products be sold as soon as their presentation as
evidence is completed. The proceeds thereofwill be depositedlheld in escrow
for collection by the prevailing party.
The prosecutor should, before the confiscated forest/wood products are
sold, cause the photographing of the same. Photographs should be certified
at the back thereof by the DENR officer and appended to the record of the
case.
For repeat violators ofSec. 77 (Cutting, gathering and/or collecting timber
or other forest products without license), such fact should be alleged as an aggravating circumstance in the information considering that penalties for such
violation are those provided for under Articles 309 and 310 of the Revised
Penal Code. Thus, applying Article 10 of the Revised Penal Code and the
ruling of the Supreme Court in PP vs. Martin S. Simon (OR No. 93028, July
29, 1994; 234 SCRA 555), such circumstance of recidivism or reiteracion
should be alleged.
The prosecutor should also consider the outcome of the administrative
adjudication proceedings for violation of Sec. 77 in determining probable
cause. The prosecutor may request for additional evidence obtained during
administrative adjudication proceedings.
182
1. EVIDENCE REQUIRED
a. Important piece of evidence - Waste Transport Record (DAO No. 200436) with:
Technical or office generated reports, testimonial evidence of the concerned office personnel, and pertinent testimonies of other persons in the
community, as sufficient bases for the finding of probable cause for the
purpose of filing and prosecuting the case even in the absence (usually
intentional) of the accused..
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2. POINTERS
a: For violation of Sec. 102 (Illegal Exploration), it should be made clear
. that the "consent" of officials of the local government unit, 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 regularity.
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
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1. EVIDENCE REQUIRED
a. Useful pieces of evidence in the prosecution of violators of Sec. 27, particularly the killing of wildlife:
b. On inflicting injury:
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Certification from a licensed veterinarian that the dumped waste products are detrimental to the life of the wildlife found or living in the
area; and
Certification from the DENR that the place where the wastes were
dumped is a critical habitat in accordance with the NIPAS Act, or
designated as such in accordance with Sec. 25 ofRA9147.
d. Trading of wildlife:
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Certification from the DENR or PAWB that the place where the concerned act is done is within a critical habitat in accordance with RA
7586 or the NIPAS Act or designated as such in accordance with Sec.
23 ofRA 9147.
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Certification from the DENR or PAWB that the place where the concerned act is done is within a critical habitat in accordance with RA
7586 or the NIPAS Act or designated as such in accordance with Sec.
23 ofRA 9147.
Certification from the DENR that no permit was given to the violator
for the concerned activity.
k. Gathering or destroying of active nests, nest trees, host plants, and the
like:
186
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.
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. 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:
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2. POINTERS
a, It should be noted that an order from the Pollution Adjudication Board
(pAB) directing the filing of a criminal case is a condition precedent
b. Results of sampling (Laboratory Analyses) must be signed by chemists from the DENR-EMB or DENR-accredited laboratories.
c. There must also be a report on the inspection and monitoring of premises prepared by the proper authorities (EMB-Regional Office, signed
by the Regional Director).
d. RA 9275 lacks provisions on the issuance of seizure receipts, particularly on subject vessels containing hazardous/industrial wastes
and other pollutants, which are caught in flagrante delicto and in the
normal course of procedure. Also, there is no particular storage facility for the said wastes and other pollutants while in custodial legis.
188
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3. Once the filing of an Information in court has been approved by the head of
office, prepare for the trial for the money laundering offense in close coordination with the AMLC official who file the complaint.
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4. During the trial of the case, prove by evidence beyond reasonable doubt all
elements of every money laundering offense under Sec. 4 of the AMLA,
including the element of knowledge that the monetary instrument or property represents, involves or relates to the proceeds of any unlawful activity.
(Rule 6.6. ofthe Revised Implementing Rules and Regulations ofRA 9160 as
amended by RA 9194).
No element of the unlawful activity, however, including the identity of the
perpetrators and the details of the actual commission of the unlawful activity,
need be established by proof beyond reasonable doubt since the elements of
the offense of money laundering are separate and distinct from the elements
of the felony or offense constituting the unlawful activity. (Rule 6.7, ibid).
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Special Section on
Prosecuting Human Rights Violations
and Providing Available Remedies Therefor
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Special Section on
Prosecuting Human Rights Violations
and Providing.Available Remedies Therefor
1.
IN GENERAL
A. STRUCTURE
This special section on human rights will start by presenting a summative
checklist to guide a public prosecutor in dealing with cases ofhuman rights violations - what the requisites are for their successful prosecution and the alternative
or cumulative legal remedies that can be availed of.
The first part of this section will identify the particular human rights violation
in focus, then proceed to outline how the Public Prosecutor can deal with it using
available remedies in substantive and procedural criminal law.
The second part of this section will identify generic remedies available under
substantive law that may be resorted to and employed in the process 'of seeking
redress to human rights violations. However, since these provisions are few and
perform only a largely compensatory function, we have to tum to the larger field
of substantive and procedural criminal law to be able to fully address the consequences of the violation and provide the victim with the full coterie of remedies
designed to vindicate the rights violated.
B. SUMMATIVE CHECKLIST
1. STEP ONE. How do you know that a human rights violation has been committed?
a.
LOOK AT THE LEGAL BASES. The enumeration ofcivil and political rights and liberties can be found in the Constitution's Bill of Rights
and the Civil Code's Article 32.
If the violator is an agent of the State, then the Bill of Rights is more
applicable, because the limitations set forth therein are addressed to
the exercise of governmental powers and prerogatives.
192
human person; as such, anyone can also readily recognize when a violation 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
person who merely intends to injure and a person who takes advantage
of the fragility and limits of what the human body can take in order to
totally subdue the will of another.
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2. STEP TWO. How do you prove that there has been a human rights violation?
'Medico-legal reports (for physical trauma)
Autopsy reports (for causes of death and internal! external injuries
sustained immediately prior to, or contemporaneous with, the point of
death)
Psychiatric and psychological evaluations (for mental, emotional, and
psychological trauma on the part of the victim and his! her relatives)
Affidavits of witnesses (focusing on the circumstances that would qualify
an act as a human rights violation, as discussed above)
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3. STEP THREE. What do you do about it? Determine whether a. THE HUMAJ'f RIGHTS VIOLATION IS CONTINUALLY BEING
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avail of the right of visitation of, and conference with, counsel that
is granted to every detainee or person under. custodial investigation.
Torture or other forms of persecution can speedily be discovered and
addressed through this means.
utilize inquest proceedings so that violations of human rights can
already be disclosed early on.
bring to the attention of the court actual knowledge, or well-founded
suspicion of torture or other forms of human rights violations. The
courts, under Administrative Matter No. MTJ 90-4001 have the positive duty to "proceed with caution" during trial whenever allegations
of violations of the fundamental rights of the accused are brought to
their attention.
gather information through the usual channels of inquiry, taking into
account whether or not information being sought is:
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2. privileged, or
3. withheld from the public by reason of national security, etc.
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:
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For example:
1. The component felonies that may be equated to torture like maltreatment of prisoners, serious physical injuries, administration
of injurious substance, mutilation, etc.
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Equivalent felonies to enforced disappearance like arbitrary
detention and kidnapping
..J. Felonies parallel to involuntary displacement like grave coercion
and expulsion
4. STEP FOUR. Is there a way forward?
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196
For example:
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"That onor about the 8th day ofApril, 2008, in the Municipality
of Donsol, Sorsogon, Philippines, and within the jurisdiction of this Honorable Court, the said defendants, JOSEFO
:MERCADO and DETh10S PERICLES, and CRISPULO
mAN DE DIOS, conspiring, confederating and mutually
aiding each other, did then and there willfully, unlawfully
and feloniously tortured and killed VICENTE TONGOL
through infliction of severe blows by a blunt object to the
head, electrocution of the genitals, tearing off of the fingernails, and drowning, with treachery, known premeditation,
abuse of superior strength, and means employed to weaken
the defense, and as a result thereof, said VICENTE TONGOL
slowly suffered intense physical and psychological trauma
until his death.
"CONTRARY TO LAW.
While the above Information recites all the essential elements of murder, it
also went further to allege other facts that clearly paint the accurate picture
of the felony - that is, through the violation of the fundamental human right
not to be subjected to torture and other cruel, inhuman, and degrading treatment. In those cases where the judge is given enough latitude to pronounce
the proper penalty to be imposed (as in the case of the application of the
Indeterminate Sentence Law), these facts can and should be given adequate
consideration.
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II.
A. BACKGROUND
Definition
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The first thing that a prosecutor must bear in mind is that torture is unconstitutional. 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 compelling 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 prescribed punishments but in a cruel or humiliating manner. For cases of
torture committed against persons under investigation, this is the most
direct remedy.
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If the victim of torture is not a prisoner or where the alleged perpetrators are unidentified (in which case their status as public officials cannot be
established), then torture can be proceeded against on a piecemeal basis. All
the acts constituting torture and all acts committed in the course of the act
of torture can be prosecuted simultaneously. Based on common experience,
torture oftentimes involves the infliction of physical and psychological suffering on the victim through various acts designed to break the victim's will
and spirit so that hel she would accede to the demands of the torturers. As
such, torture can be prosecuted by filing any or all of the following actions,
provided the following requisite elements have concurred:
200
b. Serious. Less Serious, or Slight Physical Injuries (Art. 263, 265, and 266,
Revised Penal Code)
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Offender is a man:
Offender had carnal knowledge of a woman;
Such act is accomplished under any of the following circumstances:
following
The act of sexual assault is accomplished under any of the following circumstances:
o By using force or intimidation; or
o When the victim is deprived of reason or otherwise unconscious; or
202
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Murder (Art. 248, Revised Penal Code) or Homicide (Art. 249, Revised
Penal Code)
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In all these cases, however, the prosecution of torture takes a more circuitous
route, not to mention the fact that it would be harder to meet the quantum of
evidence required to sustain a conviction on all grounds taken individually. It
would, however, be better to institute these actions in vindication of the rights
of the victim rather than allow the act of torture to go unpunished and not to
pursue it in lieu of the "main" action in the case (e.g., the victim is charged with
the crime of theft but was tortured while in detention - chances are the defense
will just concentrate on proving Innocence of the accused in the crime of theft
without pursuing administrative and criminal cases in relation to the perpetration
of torture on the accused).
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Under the Human Security Act, the following acts shall not be employed during the investigation/ interrogation of a person detained for the crime ofterrorism
or conspiracy to commit terrorism:
If the above acts were shown to have been committed, the evidence obtained
from said detained person resulting from such threat, intimidation, or coercion, or
from such inflicted physical pain or torment, or mental, moral, or psychological
pressure, shall be, in its entirety, absolutely not admissible and usable as evidence
in any judicial, quasi-judicial, legislative, or administrative investigation, inquiry,
proceeding, or hearing.
More importantly, the person or persons proven to have committed the above
acts will be penalized under Sec. 25 of the Human Security Act in this wise:
a. Any person or persons who use threat, intimidation, or coercion, or who
inflict physical pain or torment, or mental, moral, or psychological pressure, which shall vitiate the free-will of a charged or suspected person
under investigation and interrogation for the crime of terrorism or the
crime of conspiracy to commit terrorism shall be guilty of an offense and
shall suffer the penalty of twelve years and one day to twenty years of
imprisonment.
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Threat
Intimidation
Coercion
Acts which wI71 inflict any form ofphysical pain or torment, or mental,
moral, or psychological pressure, or which shall vitiate the detained
person's free-will
206
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
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The prosecutor must be prudent enough to confer with the client in confidence and in a manner and within an atmosphere that would inspire trust so
that the possibility of such confession or admission being obtained through
torture can be -eIiminated with certainty, Oftentimes, the case of the prosecution 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
Letter ofInstruction 621 (series of 1977) provides for a procedural mechanism 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.
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recommendation tinding lack of probable cause, on the ground that a confession extracted through torture or acts tantamount to it is inadmissible in evidence. This is without prejudice to the institution ofproper actions to proceed
against the perpetrators of torture.
In the 1964 criminal case of People v. Castro, the Supreme Court imposed upon judges and prosecutors, to whom persons accused are brought
for swearing to the truth of their statements, the obligation to adopt the
practice of having confessants physically and thoroughly examined by
independent and qualified doctors before administering the oath, even if it
is not requested by the accused.
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
of torture, or ascertain the absence thereof whenever a confession or admission is introduced in evidence. The judge, in general terms, is enjoined
to make findings of fact regarding the presence or absence of previous
acts of torture perpetrated upon the accused through overt and searching
inquiry. In doing so, the judge must take into account the fact that an
accused who goes to court for trial and who expects to be returned to the
same detention place under the custody of the same detention officers is
very unlikely to volunteer information of torture or maltreatment.
It is therefore the duty of the judge to examine the candor of the accused and look for tell-tale signs of torture even if no allegation of such
was made. In addition, the judge must not confine himlherselfwith mere
physical manifestations evidencing or indicating the possibility of torture.
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2. Criminal actions
a. Actions under the Revised Penal Code can be brought against persons
responsible for enforced disappearances. Depending on the satisfaction
of the requisite elements constituting each felony, the following actions
(with the following elements) may be filed against the responsible person
or persons for acts that they have committed directly or on the occasion of
the enforced disappearance
1. Arbitrary Detention (Art. 124, Revised Penal Code)
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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 precondition 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
the necessary action and avail of the necessary remedy more effectively.
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in the case of a department, office or agency which regulates currencies, securities, commodities, or financial institutions, be likely
to lead to significant financial speculation in currencies, securities,
or commodities, or significantly endanger the stability of any
financial institution; or
in the case of any department, office or agency, be likely or significantly to frustrate implementation of a proposed official action,
except that subparagraph (f) (ii) shall not apply in any instance
where the department, office or agency has already disclosed to
the public the content or nature of its proposed action, or where
the department, office or agency is required by law to make such
disclosure on its own initiative prior to taking final official action
on such proposal.
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-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
used to deny access to official police and military records that could have
been helpful in the location of disappeared persons.
However, despite recourse to this ground provided by law, there exists a
relatively new remedy under procedural law that would temper the invocation
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.
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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:
b. As a curative remedy, however, like in cases, where a person has already been abducted and involuntarily disappeared, the petition may
be rued by:
collateral relatives, or
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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, privileged communications, confidentiality of the source of information of media and others
o
if this defense is claimed, hearings in chambers may be conducted at the discretion of the court to examine the validity of
its invocation
the steps or actions taken by the respondent to ensure the security and confidentiality of the data or information;
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
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filed their return. Information that could not have been obtained upon invocation of the "national security" defense has already been disclosed to
. aid in locating a disappeared person.
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1. Rationale
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
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
disappeared person with his or her family.
When a valid defense is invoked by officials that led to the stonewalling
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
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
outright harassment.
218
However, in cases where such information-gathering mechanisms provided 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 information will remain useless if officials concerned will continue to refuse to
release the victim on some ground.
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 officials 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 imprisoned or restrained ofhis liberty;
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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
determined that the ground for the deprivation of his or her liberty is
not meritorious.
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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:
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The next section is dedicated to this new remedy to complement the Writ
of Habeas Corpus.
3. Availing ofthe Rule on the Writ of'Amparo (A.il1. No. 07-9-12-SC, October
24,2007)
(1) Nature and Purpose
According to the rule promulgating it, the petition for a Writ ofAmparo
is a remedy available to:
a. any person whose right to life, liberty and security is' violated or
threatened with violation by an unlawful act or omission of:
1.
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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 petitions. '
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.
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The petition shall be signed and verified and shall allege the following:
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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
respondent, and how such threat or violation is committed with the
attendant circumstances detailed in supporting affidavits;
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not only to justify the continued detention of a disappeared person under custody 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
under custody.
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In short, the respondent cannot simply deny that he or she has the disappeared 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
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:
"
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 aggrieved party, through any act or omission;
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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 designated land or other property, to permit entry for the purpose of:
inspecting,
measunng,
1l1. surveying, or
iv. photographing the property or any relevant object or operation
thereon.
1.
11.
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11.
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(2) the time, place and manner of making the inspection and
(3) may prescribe other conditions to protect the constitutional
rights of all parties.
IV.
The order shall expire five (5) days after the date of its issuance, unless extended for justifiable reasons.
2. Production Order
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,
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.
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produce and
permit their inspection, copying or photographing by or on
behalf of the movant.
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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
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
of law prior to imposition of any punishment; and they represent a punishment
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In the Philippines, the problem was first given full recognition and assumed
the full gravity that it deserves during the National Consultative Summit organized
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
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
of extra-legal killings and enforced disappearances.
The National Consultative Summit itself was impelled by the recent spate of
widespread killings and summary executions ofmembers ofprogressive political
groups, mostly in the countryside, and journalists widely identified as being critical of incumbent national and local officials.
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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
execution.
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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 whatever 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.
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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 protection to the petitioner in such manner as to avert the occurrence of extra-legal killing. 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
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then the heirs ofthe victim can also file a claim before the Board of Claims of the
Department of Justice.
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The Human Security Act, as already explained eariier, provides that, "any
person or persons who use threat, intimidation, or coercion, or who in:tlictphysical 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 aggravatingcircumstances of taking advantage ofpublic position, lack ofprovocation,
noctumity, being committed by a band, evident premeditation, taking advantage
of superior strength, or treachery! aievosia.
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These rights spring from the inherent entitlement of every person to establish
a domicile in a place that he or she finds necessary, convenient, or beneficial, owing to personal needs and circumstances and considerations oflivelihood, culture,
and physiology.
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It also violates the constitutional protection of one's property for the State
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
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.
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
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
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~
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B. GUIDELINES IN THE DELIMITATION OF THE RIGHT OF ABODE
AND RIGHT TO FREEDOM OF MOVEMENT
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(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 movement is an act that would warrant compensation by way of moral and
exemplary 'damages.
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(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.
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a. The felony of expulsion as punished in the Revised Penal Code has the
following elements:
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3. Criminal action for Grave Coercion (Art. 286, Revised Penal Code)
(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 coercion punishable by the Revised Penal Code. The elements of the felony
are:
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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.
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2. By whom filed.
Any person whose civil and political rights and liberties as enumerated
in paragraph (4) below have been directly or indirectly obstructed, defeated,
violated, or in any manner impeded or impaired.
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That the person bringing suit has the right to enjoy, under the law, civil
and! or political rights and! or liberties.
That the person being sued has a duty under the law to respect the exercise
of such civil and! or political rights and! or liberties.
That, despite this duty, the person being sued directly or indirectly obstructed, defeated, violated, or in any manner of impeded or impaired
such civil and! or political rights and! or liberties.
That the civil and! or political rights and! or liberties obstructed, defeated,
violated, or in any manner impeded or impaired falls under the enumeration in Article 32 of the Civil Code:
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Freedom of religion
Freedom ofspeech
Freedom to write for the press or to maintain a periodical publication
Freedom from arbitrary or illegal detention
Freedom of suffrage
The right against deprivation of property without due process oflaw
The right to just compensation when property is taken for public use
The right to equal protection of the laws
The right to be secure in one's person, house, papers and effects against
unreasonable searches and seizures
The liberty of abode and of changing the same
The right to privacy of communication and correspondence
The right to become a member of associations and societies for purposes not contrary to law
The right to take part in a peaceable assembly and petition the government for redress of grievances
The right to be free from involuntary servitude in any form
The right of the accused against excessive bail
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;
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.
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;
Freedom of access to the courts
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C. FILING A CLAIM BEFORE THE BOARD OF CLAIMS OF THE
DEPARTMENT OF JUSTICE UNDER THE VICTIM COMPENSATION
ACT eRA 7309)
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1. Legal basis
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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
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).
By whom filed;
'0
any person who was unjustly accused, convicted and imprisoned but
subsequently released by virtue of a judgment of acquittal;
any person who was unjustly detained and released without being
charged;
o
o
rape; or
offenses committed with malice which resulted in death or serious
physical and/or psychological injuries, permanent incapacity or
disability, insanity, abortion, serious trauma; or
C committed with torture, cruelty or barbarity.
o The heir of a person entitled to any award under this Act who died or
was incapacitated.
Procedure for filing claims (Title III, Sec. 2, IRR ofRA 7309)
o In case of a person who was unjustly accused, convicted and imprisoned but subsequently released by virtue of a judgment of acquittal,
he must provide the following:
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including but not limited to the certified true copy of the report to
the police or a doctor's/psychiatrist's certificate, if necessary.
o If claimant is an heir, he shall also submit the following:
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Procedure for processing ofclaims (Title Ill, Sec 3, IRR ofRA 7309)
o After the claim has been docketed and given a claim number, it shall
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 presented, he shall direct an investigation thereof;
o
The investigator shall submit his report to the Evaluator within five
days from assignment. The Evaluator shall submit his recommendation to the Board within ten days from the submission of the investigator's report;
The Board shall resolve the claim within thirty working days after the
filing of the application; and,
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Within 6 months from the date the victim suffered damage or injury.
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Special Section on
Prosecuting Violations of the
National Internal Revenue Code (NIRC)
and Related Laws
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2. The prosecutor shall acquire additional information from witnesses which may
not have been related to him by the investigator. (Goldstein, Trial Technique, p.
226)
3. The prosecutor shall find out whether the witness (informant, asset, etc.) has any
interest on the outcome of the action; and
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.)
5. The prosecutor shall determine, as far as practicable, what laws and jurisprudence
are applicable in the case and how they are applicable to the set of facts as relayed
by the investigator and witnesses.
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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.
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)
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 important that prosecutors understand and appreciate fully the nature of the evidence in
tax cases which the witness will give on the issues.
8. The prosecutor shall prepare the trial brief pursuant to DOJ Department Circular
No. 47, s. 2000.
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.
240
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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)
in the exercise of its original jurisdiction.
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The recommended bail shall be in accordance with the DOJ Bail Bond
Guide.
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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.
m.
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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
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
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
less than Ten thousand pesos (PIO,OOO) and suffer imprisonment of not less than
one (l) year but not more than ten (10) years.
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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
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.
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c.6. officer-in-charge
c.7. employees responsible for the violate
Tax Return of the taxpayer
BIR registration (Integrated Tax System [ITS]/RDO certification) to show
that the person is a registered taxpayer
Deeds ofconveyance & Certificate ofAuthorizing Registration (in case of
One-Time Transaction [ONETT])
Contracts
Mayor's permit to show that business is in operation
DTI registration (if sole proprietorship)
DT! or SEC records to show existence of business operation
Proof of income received or documents to show source of income
Any other documents showing participation! involvement ofother persons
in the commission of the offense
Notice of Informal Conference
Preliminary Assessment Notice (PAN)
Formal Letter of Demand & Final Assessment Notice (FAN)
Pro-forma Protest, if there's any
Certification from Collection and Enforcement Division (CED) of no
payment
Tax Return
Third Party Information (certification) to show income
Other proof that income is received
First! Second! Final request for presentation of books of accounts i accounting records
RDO Certification of no return filed
Certificate of creditable withholding tax
Certification from government agencies and/or private entities to show
mcome
Financial statements
Alpha List from district, Withholding Tax Division or Large Taxpayer
Service
Computation of tax liability
245
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(8) Willfully attempts in any manner to evade or defeat any tax imposed under this Code, or knowingly uses fake or falsified revenue official
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b.l. That the offender knew that a document was falsified by another
person;
b.2. That the false document is embraced in Art. 171 or in any of the
subdivision No.1 or 2 ofArt. 172;
b.3. That he used such document (not in judicial proceedings); and
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b.4. That the use of the false document caused damage to another or
least, it was with intent to cause such damage.
D. Sec. 258. Unlawful Pursuit of Business. - Any person who carries on any business 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
249
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c.6. treasurer
c.7. officer-in-charge
c.8. employees responsible for the violation
d. Deeds of Conveyance & Certification Authorizing Registration (in case of
One Time Transaction [ONETT])
e. Contracts
f. Mayor's permit to show that business is in operation
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
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
not a registered taxpayer or that no payment of annual registration fee has
been made
l. Third Party Information
m. Proof of conduct of business
n. Ocular Inspection
o. Certification from Collection and Enforcement Division
p. No official receipt registered with the BIR
6. Related Tax Code Provision: Sec: 236
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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 written 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
to the penalties prescribed for perjury under the Revised Penal Code.
250
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b.6. treasurer
b.7. officer-in-charge
b.8. employees responsible for the violation
Deeds of Conveyance & Certi:ficationAuthorizing Registration (in case of
One Time Transaction [ONETT])
Contracts
DTI registration (if sole proprietorship)
Tax Return
Proof of income
Certificate from district, region, ITS
Financial Statements
Third party Information
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,
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
proper identification for tax purposes, and which he shall indicate in certain documents, xxx
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a. Aznar vs. eTA (GR No. L-20569, 23 August 1974,58 SCRA 519)
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
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
determined by the inventory method utilized by respondents for the
same years.
a.2. The SC ruled:
"Such a basis [inventory method] for determining the existence
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.
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 petitioner's tax liability. The mistakes committed by the Commissioner
of Internal Revenue which also involve very substantial amounts
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were also repeated yearly, and yet we cannot presume therefrom the
existence of any taint of official fraud.
From the above exposition of facts, we cannot but emphatically
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
frequent they may be, especially if such mistakes emanate from
erroneous entries or erroneous classification of items in accounting methods utilized for determination of tax liabilities. The predecessor of the petitioner undoubtedly filed his income tax returns
for the years 1946 to 1951 and those tax returns were prepared for
him by his accountant and employees. It also appears that petitioner
in his lifetime and during the investigation ofhis tax liabilities cooperated readily with the B.I.R. and there is no indication in the record
of any act of bad faith committed by him.
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-d.l. A criminal case was filed against Fortune Tobacco ("Fortune") for
alleged fraudulent tax evasion for supposed non-payment of the correct amount of income tax, ad valorem tax and value-added tax for
the year 1992. The fraudulent scheme allegedly adopted by Fortune
consisted ofmaking fictitious and simulated sales of Fortune's cigarette 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
wholesale prices, which are required for determination of Fortune's
correct income and tax liabilities. Fortune sought the injunction of
the preliminary investigation.
d.2. The SC held:
"In plain words, for criminal prosecution to proceed before assessment, there must be a prima facie showing of a willful attempt
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
court and the Court of Appeals, Fortune's situation is quite apart
factually since the registered wholesale price of the goods, approved by the BIR, is presumed to be the actual wholesale price,
therefore, not fraudulent and unless and until the BIR has made a
256
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
257
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shares of stocks by the petitioners, the tax base was lessened which
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
evaded the payment ofcorrect taxes thereby denying or depriving the government the right to collect the exact taxes due from
petitioners' stock transactions. Furthermore, it is noteworthy that
except for the objection that the Deeds ofAssignment were not best
evidence nor secondary evidence, petitioners failed to rebut the allegation 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
of the cost of acquisition in the capital gains tax returns filed with
the Bureau ofIntemal Revenue." (Emphasis and underscoring supplied.)
c. People vs. Mallari (C.T.A. Crim. Case Nos. A-I & A-2, 04 September
2006)
c.l. This is a criminal case for failure to pay deficiency income tax and
value added tax.
c.2. According to the CTA:
"The Supreme Court had ruled that the word willful in a statute means 'not merely voluntary but with a bad purpose; in other
words, corruptly' and that a voluntary act is a free, intelligent, and
intentional act.
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
December 7, 2000 32) which were proven to have been sent by registered mail (Exhibit "Y'); that he received the Warrant of Distraint
and Levy (Exhibit "K") and the Demand Letter (Exhibit "D") demanding 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
can be drawn except that the accused-appellant willfully did not
pay his deficiency tax liabilities. Furthermore, accused-appellant's
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
of bribing the BIR employees constitutes an overt act on the
part of accused-appellant that showed his deliberate and willful
258
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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,
leaving most of their personal and real properties under the possession and control of the government.
a.3.The RTC held:
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Hawaii until November 1991, when they returned to the country; the
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.
True, as pointed out by the defense, why would the government
require accused to comply with her obligations when it had taken
away the very means by which she could comply with the requirements of the law? Logically, a legal heir who does not possess a
knowledge or information regarding the total value of the estate of
the decedent would not dare execute a return "under oath" under
pain of criminal liability. In the same manner, it is error to expect
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
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.
On the whole, underscoring the finding ofthe Court that accused's
failure to comply with her tax obligation was due to causes beyond
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 complaints, is lacking. In short, the prosecution's evidence did not pass
the test of moral certainty that there was "willful disobedience" on
the part of the accused with the intention to evade and defeat the
tax." (Underscoring supplied.)
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United States v. Kim, 884 F2d 189, 192 (5th Cir. 1989) (evidence of willfulness was sufficient where taxpayer failed to report
$182,601 of income over three years); United States v. Kryzske,
836 F2d 1013, 101920 (6th Cir. 1988) (willfulness found where
taxpayer failed to file complete tax returns over a four-year period
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
States v. Skalicky, 615 F2d 1117 (5th Or. 1980); United States v.
Larson, 612 F2d 1301 (8th Cir. 1980); United States v. Gardner,
"
mation.
United States v. Samara, 643 F2d 701, 703 (lOth Cir. 1981)
(taxpayer kept receipt books for cash received but did not supply
them to accountant, thus concealing cash receipts); see also United
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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
most of her income in the bank); United States v. Walsh, 627 F2d
88 (7th Cir: 1980); United States ". Tager, 481 F2d 97, 100 (lOth
Cir. 1973); United States v. Callanan; 450 F2d 145, 150 (4th Cir.
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.
Adonis, 221 F2d 717,719 (3d Cir: 1955).
b.5. Keeping a double set of books. United States v. Daniels, 617 F2d
146 (5th Cir: 1980).
b.6. Hiding, destroying, throwing away, or "losing" books and records.
United States v. Walker, 896 F2d 295, 300 (8th Cir: 1990) (taxpayers hid records and assets in an attempt to conceal them from
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,
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).
b.7. Making or using false documents, false entries in books and records,
false invoices, and the like.
UnitedStatesv. Wilson, 118F3d 228,236 (4th Cir. 1997); United
States v. Chesson, 933 F2d 298, 304 (5th Cir. 1991); United States
v. Walker, 896 F2d 295, 298 (8th Cir: 1990) (defendants submitted
false invoices to their family company so that the company would
treat their personal expenses as business expenses).
263
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United States v. Daniel, 956 F2d 540 (6th Cir. 1992) (defendant used
cash extensively, immediately converted checks to cash, and paid employees 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).
b.ll. Spending large amounts of cash which could not be reconciled with the
amount of income reported.
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
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.
Mortimer; 343 F2d 500, 503 (7th Cir. 1965) (money orders and cashier's
checks).
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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).
b.l S, Checks cashed and the currency deposited in an out-of-town bank account.
United States v. White, 417 F2d 89,92 (2d Cir. 1969).
b.14. Unorthodox accounting practices with deceptive results. United States v.
Slutsky, 487 F2d 832. 834 (2d Cir: 1973); United States v. Waller, 468 F2d
327,329 (5th Cir. 1972).
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b.15. Repetitious omissions ofitems of income, e.g., income from various sources
not reported.
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United States v. Walker, 896 F2d 295,299 (8th Cir. 1990) (over a twoyear 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).
b.16. Prior and subseauent similar acts reasonably close to the prosecution
years.
United States v. Middleton, 246 F3d 825, 836-837 (6th Cir. 2001);
Matthews v. United States, 407 F2d 1371, 1381 (5th Cir. 1969); United
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.
1958); cf Fed. R. Evid. Rule 404(b).
b.17. Alias used on gambling trip -- relevant to an intent to evade taxes. United
States v. Catalano, 491 F2d 268,273 (2d Cir. 1974).
b.18. The defendant's attitude toward the reporting and payment of taxes generally.
United States v. Hogan, 861 F2d 312 (1st Cir: 1988); United States v.
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);
b.l9. Background and experience of defendant. General educational background
and experience of defendant can be considered as bearing on defendant's
ability to form willful intent.
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b.20. Offer to bribe government agent. Barcott v. United States, 169 F2d 929,
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
States v. Walsh, 627 F2d 88, 92 (7th Cir: 1980); United States v. Holladay,
566F2d 1018.1020 (5th Cir. 1978).
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
F2d 314 (lith Cir. 1987).
b.23. Illegal sources of income. United States v. Palmer, 809 F2d 1504,1505-06
(lith Cir: 1987) (sale of narcotics).
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V.
[ ]
Caption
[]
Information Sheet (names, addresses and telephone numbers of the investigators, parties,
court)
[]
[ ]
[]
Issues
[]
Stipulations
[J
Admissions
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Elements
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[]
Evidence:
267
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[ ]
Source of evidence:
[]
[]
Evidence:
[]
Source of evidence:
[ ]
Such person willfully attempts in any manner to evade or defeat any tax imposed
under the NIRC or the payment thereof
[ ]
Evidence:
[]
Source of evidence:
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;
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[]
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[]
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[]
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[ ]
Facts to be proven:
[]
Evidence:
[]
Source of evidence:
[]
Facts to be proven:
[]
Evidence:
[]
Source of evidence:
Witnesses
[]
268
Witness name:
,
[]
Personal background:
[]
Outline of testimony:
[]
Comment:
[]
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[]
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[ ]
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[]
Comment:
269
----
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---
----
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270
Documentary exhibits
[ ]
[]
[]
General Information sheet showing the identity ofthe corporate officers as enumerated in Sec. 253 (d)
[]
[]
BIR registration (Integrated Tax System [ITS]/RDO certification) to show that the
person is a registered taxpayer
[]
[ ]
[]
Mayor's Permit
[ ]
[]
[]
[]
[ ]
[]
Fraudulent Scheme:
[]
[ ]
Using a dummy/ies
[]
[]
Badges ofFraud:
[ ]
[ ]
[ ]
any act or recurrence of the foregoing or similar circumstances (Vitug, citing Collector vs. Reyes);
[ ]
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making it appear that one has filed a return or actually filing a return and
subsequently withdraws the same after securing the official receiving seal
or stamp;
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[]
[ ]
[ ]
[ ]
271
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[ ]
Caption
[ ]
Information Sheet (names, addresses and telephone numbers of the investigators, parties,
court)
[ ]
[ ]
[ ]
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[ ]
[ ]
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[ ]
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
[ ]
Evidence:
[ ]
Source of evidence:
[ ]
[ ]
Evidence:
[ ]
Source of evidence:
.[]
l'
[]
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
-----------------------_
--------------------_
_
[]
Facts to be proven:
[]
Evidence:
[]
Source of evidence:
[ ]
Facts to be proven:
[]
Evidence:
273
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[]
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[]
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[]
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[ ]
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[]
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[ ]
Outline of testimony:
[]
Comment:
[]
Witness name:
[ ]
Personal background:
[]
Outline of testimony:
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[]
Comment:
-'--------------------
Documentary exhibits
[ ]
[ ]
[]
General Information sheet showing the identity ofthe corporate officers as enumerated in Sec. 253 (d)
[]
[1
BIR regisrration (Integrated Tax System [ITS]/RDO certification) to show that the
person is a registered taxpayer
[]
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Contracts
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Mayor's Permit
[]
[]
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[]
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PAN
[]
[]
[]
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Tax Return
[]
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Financial Statements
Alpha List from district, Withholding Tax Division or Large Taxpayer Service
[J
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[]
[]
Caption
[]
Information Sheet (names, addresses and telephone numbers of the investigators, parties,
court)
[ ]
276
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[ ]
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[ ]
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[]
278
Witnesses
[]
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[]
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[ ]
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[ ]
Comment:
[ ]
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[ ]
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[]
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Documentary exhibits
[ ]
[ ]
[ ]
General Information sheet showing the identity of the corporate officers as enumerated in Sec. 253 (d)
[ ]
[ ]
BIR registration (Integrated Tax System [ITS]/RDO certification) to show that the
person is a registered taxpayer
[J
279
----
----
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[]
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[ ]
( ]
[]
[]
Letter ofAuthority
[]
[]
[]
[]
[ ]
[]
(]
-Deeds of Conveyance
[]
Contracts
[]
Other documents to show that there was a fraudulent scheme adopted to produce or
use a falsified CAR or other forms
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280
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Information Sheet (names, addresses and telephone numbers of the investigators, parties,
court)
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[ ]
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[ ]
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[]
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Elements
[ ]
A person, natural or juridical, carries on any business for which annual registration
fee is imposed
[]
Evidence:
[ ]
Source of evidence:
[ ]
Such person did not pay the required annual registration fee
[]
Evidence:
[ ]
Source of evidence:
[ ]
Facts to be proven:
[]
Evidence:
[]
Source of evidence:
[ ]
Facts to be proven:
[ ]
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[ ]
Source of evidence:
[ ]
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[]
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[ ]
Source of evidence:
282
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[]
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[]
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[ ]
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court)
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[]
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288
[]
Comment:
[]
Witness name:
[]
Personal background:
[]
Outline of testimony:
[]
Comment:
Documentary exhibits
[]
[]
General Information sheet showing the identity of the corporate officers as enumerated in Sec. 253 (d)
[]
[]
Contracts
[ ]
[ ]
TaxRetnrn
[ ]
Proof of income
[ ]
[]
Financial Statements
[ ]
[]
[ ]
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[ ]
lnformation Sheet (names, addresses and telephone numbers of the investigators, parties,
court)
[]
[ ]
[ ]
Issues
289
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[ ]
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290
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[ ]
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[ ]
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[]
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[ ]
Evidence:
{ ]
Source of evidence:
Witnesses
[]
Witness name:
[ ]
Personal background:
[]
Outline of testimony:
[ ]
Comment:
[]
Witness name:
[ ]
Personal background:
[]
Outline of testimony:
[]
Comment:
291
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Witness name:
[)
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Outline of testimony:
[ )
[ ]
Comment:
Documentary exhibits
[]
RDO Certification to show that taxpayer is a registered with the BIR with the TIN
assigned
[ ]
[ )
[]
[]
[ ]
292
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SAMPLE FORMATS
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Accused.
x------------------------------------x
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3. The instant motion is tiled pursuant to Department of Justice Circular No. 38 dated
August 15, 1990 which directs prosecutors to move for the issuance of a hold-departure
order in specific cases, including violations of the Tariff and Customs Code. It is not
intended to delay the proceedings or infringe upon the accused's right to travel but for
the reasons stated above.
294
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WHEREFORE, it is respectfully prayed of this Honorable Court that the instant motion
be granted and that a ho1d-departure order be issued in the above-entitled case directing the
, from leavCommissioner of the Bureau of Immigration toprevent the accused,
ing the country during the pendency ofthe instant case.
(place/Date)
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Private Prosecutor
(Address)
GREETINGS:
Please take notice that on
at
a.m, or soon thereafter, undersigned
Prosecutor shall submit the foregoing motion for the consideration of this Honorable Court.
State/Asst. Provincial/Asst. City Prosecutor
EXPLAi~ATION
Due to the distance and lack of persounel to effect personal service, the foregoing Motion
is being served upon the adverse parties via registered mail.
II
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295
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,
MEMORANDUM
Re:
For:
_
, RTC
Date:
Please be informed that accused
in the above-entitled case has jumped
bail and is reported to have fled the country. Pursuant to Department Circular No. 38 dated August
15, 1990, the passport/travel document of the said accused should be cancelled as to make him an
undocumented alien in the host country and should, therefore, be subject to deportation.
Attached is a copy of the Court Order dated
the Secretary of Foreign Affairs.
RECOMMEDING APPROVAL:
Chief State/Regional StatelProvinciallCity Prosecutor
APPROVED:
Secretary
Encls.: As stated.
296
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(Date)
e.
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Dear Secretary
Our Office
This request is with the approvai of the Secretary of Justice, as per attached
Memorandum.
Thank you for your usual prompt action on this request.
Attachment: As stated.
297
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298
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APPENDICES
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Appendix "A"
Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN
Department ofJustice
Manila
DEPARTMENT CmCULARNO. 39
TO:
SUBJECT:
RULES ON lNQUEST WITH RESPECT TO CHILDREN IN CONFLICT
WITH THE LAW AS DEFINED UNDER REPUBLIC ACT NO. 9344,
OTHERWISE Ki~OWN AS THE "JUVENILE JUSTICE AND WELFARE ACT
OF 2006"
DATE:
15 August 2007
In the interest of the service and pursuant to existing laws, Sec. 3 of the New Rules on
Inquest, which provides for the termination of inquest proceedings within the period prescribed
in Article 125 of the Revised Penal Code, as amended, shall not be applicable when the persons
arrested without the benefit of a warrant of arrest issued by the court are children, as defined under
Republic Act No. 9344, otherwise known as the "Juvenile Justice and Welfare Act of 2006" who
shall be treated as follows:
1. In cases of warrantless arrest involving a child in conflict with the law (CICL) who is
above fifteen (15) but below eighteen (18) years of age, and within eight (8) hours from
such arrest, the law enforcement officer concerned shall turn over custody of the child
to the Local Social Welfare Development Officer (LSWDO) for the determination by
the latter of the presence or absence of discernment of the child (Rule 25. 1st Pan, IRR
ofRA 9344).
2. The policy behind the juvenile justice system is, as much as possible, to prevent the
CICL from being brought within the ambit of the judicial system; a fact which is entirely
opposite to the policy underlying Article 125 of the Revised Penal Code, as amended.
2.1. Hence, the turning over of the custody of the child to the LSWDO and the latter's
custody of the child, shall not be considered a detention; for which reason, in all
cases of warrantless arrest involving CICL, Article 125 of the Revised Penal Code
shall not be applicable.
3. Cases erroneously filed by the law enforcement officer directly with the prosecution
for inquest investigation shall be dismissed without prejudice to the refilling of the
same, if so warranted:
a. Where the offense charged is punishable by imprisonment of not more than sis
(6) years, the prosecutor shall direct the law enforcement officer to turn over the
300
custody of the CICL to the LSWDO for the required diversion of or intervention
proceeding as the case maybe.
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b.l , The case may b revived for inquest proceeding should the child be found to
have acted with discernment
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b.
4. Within twenty four (24) hours from receipt of the LSWDO's finding of discernment,
the law enforcement officer concerned shall bring the child to the prosecutor for inquest
proceedings. The LSWDO shall accompany the child to provide the needed assistance
to himlher.
5. The CICL subject of the inquest proceedings may avail of his right to Formal preliminary investigation, duly assisted by counselor in the latter's absence, by his! her parent,
or guardian or the LSWDO or representative form the Barangay Council for the protection of the children, or any other government agency or non-government organization
having custody of the child for and in behalf of the LSWDO.
6. Where the child acted without discernment, the LSWDO shall notify the law enforcement officer and the offended party or the complainant (in case ofvictirnless crimes), of
such finding. TheLSWDO shall release or cause the release of the child from custody,
if within five (5) days from such notice, the offended party or the complainant does
not contest the finding of absence of discernment of the child. Upon the filing by the
offended party or complainant with the LSWDO of the notice to contest the latter's
finding, the child shall continue to be under the custody of the LSWDO or any other
authorized agency in whose custody the child has been delivered.
7. Within fifteen (IS) days from receipt of the finding of absence of discernment, the offended party or complainant may file an action or appeal with the prosecutor questioning the finding of the LSWDO. However, in cases punishable by reclusion perpetua,
life imprisonment or death, the finding by the LSWDO of lack of discernment shall be
the subject of an automatic appeal to the investigating prosecutor and it shall be the
Revised Manual for Prosecutors
301
II
duty of the law enforcers to forward/transmit the records ofthe case to the investigating
prosecutor.
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8. In cases where automatic appeal does not apply, and the LSWDO's finding of absence
of discernment is not contested within the fifteen (15) day period, the law enforcement
officer shall dismiss the case, and the LSWDO shall release or cause the release of the
child from custody, but shall subject the child to an intervention program.
9. Upon receipt of the offended party's or the complainant's appeal from the LSWDO's
finding of absence of discernment ofthe child, the prosecutor shall conduct hislher own
assessment on the child's discernment or absence, thereof.
9.1 For purposes of such assessment, the prosecutor shall require the law enforcement
officer to forward the records of the case to him/her; and conduct cl arificatory
hearing so the latter could personally examine the CICL.
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9.3 If the child acted without discernment, the prosecutor shall dismiss the case and
order the release of the child and the conduct of the intervention by tile LSWDO.
9.4. If the child acted with discernment, the prosecutor shall conduct the inquest proceedings without prejudice to the child's right to a preliminary investigation.
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Appendix "R"
Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN
Department ofJustice
Manila
I'i"',
26 June 2003
TO:
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In the interest of public service and pursuant to existing laws, effective upon issuance
hereof and until otherwise ordered, the dismissal of all cases, whether on inquest/preliminary
investigation or on appeal, filed for violation ofRA 9165 and involving the maximum penalty of
life imprisonment to death, shall be subject to automatic review, as follows:
1. For cases dismissed by City and Provincial Prosecutors, by the Regional State Prosecutor
having jurisdiction over the Prosecution Office concerned; and
2. For cases dismissed by the Chief State Prosecutor, Regional State Prosecutors and City
Prosecutors of cities in Metropolitan Manila, by the Secretary of Justice.
The entire record of the case shall be elevated to the reviewing authority concerned within
three (3) days from issuance of the resolution dismissing the complaint or appeal, as applicable.
The automatic review shall be summary in nature and shall be completed within thirty (30)
days from receipt of the case record.
This Department Circular shall apply to covered cases which have been dismissed prior to
the issuance hereof if such dismissal has not yet attained finality as of the date of this Circular.
This Department Circular amends or modifies all prior issuances inconsistent herewith.
For strict compliance.
303
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Appendix "C"
Republika ng Pilipinas
'KAGAWA RAN NG KATARUNGAN
Department ofJustice
Manila
28 August 1991
In the interest of public service and for the efficient delivery of prosecutorial services, the
following appointed Regional State Prosecutors:
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304
REGION I
APOLINARlO G.EXEVEA
San Fernando, La Union
REGIONil
RODOLFO B. CADELINA
Tuguegarao,Cagayan
REGION ill
MELCHOR Q. C. SADANG
San Femado, Parnpanga
REGION IV
CLARO A. ARELLANO
San Pablo City
REGION V
SANTIAGO M. TURlNGAN
Legaspi City
REGION VI
VICENTE E. ARAGONA
iloilo City
REGION VII
JOSE M. EZPELETA
CebuCity
REGIONVill
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REGION IX
WILFRIDO M. YU
Zamboanga City
REGION X
JESUS A. ZOZOBRADO
Cagayan de Oro City
REGION XI
EMANUEL D. GALICIA
Davao City
{.
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.REGION XII
SALIC B. DUMARPA
lligan City
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1. Implement within the region policies, plans, programs, memoranda, orders, circulars,
rules and regulations of the Department of justice relative to the National Prosecution
Service (p.D. 1175);
2. Exercise immediate administrative supervision over all provincial and city prosecutors
and other prosecuting officers of provinces and cities within the region;
3. Investigate and/or prosecute, upon the directive of the Secretary of Justice, speci:fic
criminal cases filed within the region.
4. Appoint personnel to positions in the first level and casual and seasonal employees as
may be necessary; and exercise disciplinary actions over them in accordance with the
Civil Service Law; and approve transfer of subordinate personnel within the region
(E.0.292, s. 87; P.D. 1275);
5. Approve requests for sick, vacation and maternity leaves of absence with or without
pay, for a period not exceeding one year; for overtime services; for permission to teach,
exercise their profession or to engage in business outside of office hours in accordance
with standards and guidelines of the Civil Service Commission; for official travel
within the region for periods not exceeding thirty days; and for claims for benefits
under existing law (p.D. 1275 and E.O. 292);
6. Approve attendance of personnel in conference, seminars and non degree training and
programs within the region (E.O. 292);
7. Prepare the budget for the approval of the Secretary of Justice and administer the same
(p.D. 1275);
305
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8. Approve requisition for supplies, materials and equipments as well as books and
periodicals, and other items for the region, in accordance with the approved supply
procurement programs (E.O. 292);
9. Negotiate and conclude contracts for services or for furnishing supplies, materials and
equipment for amounts not exceeding P50,000.00 for each quarter (p.D. 1275);
10.
Monitor the submission of all reports required by the Department of Justice in relation to the operations and field activities of the prosecution offices within the region
(Department Order No. 150, s.1989);
11. Designate a prosecutor from another province or city within the region to investigate
and prosecute a case in instances where parties may question the partiality or bias of
prosecutors of a particular provincial or city prosecution office;
12. Recommend to the Secretary of Justice the appointment and/or promotion of any provincial or city prosecutor or their assistants within the region;
13.
Resolve with finality appeals from resolutions of dismissal of provincial/city prosecutors and their assistants within the region, provided that the case is one where the
offense charged falls within the jurisdiction of Metropolitan Trial Courts, Municipal
Trial Courts, and Municipal Circuit Trial Courts or is punishable with imprisonment of
not exceeding four (4) years and two (2) months, or a fine not more than four thousand
pesos, or both such fine and imprisonment;
14.
15.
16. Coordinate with the regionai offices of the other departments and bureaus/agencies
under the Department of Justice and with local governments, the police and military
units in the region (p.D. 1275); and
17. Perform such other duties and functions as may be provided by law or further delegated
head of agency or other proper authorities concerned (E.O. 292).
In the meantime that the Office of the Regional State Prosecutor is without a complement
of support staff personnel, the Regional State Prosecutor is hereby authorized to detail with his
office such number of personnel that may be needed from adjacent Provincial/City Prosecution
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Offices so that it may be able to deliver and perform its functions as herein provided in this Order.
Likewise, until it shall have a budget of its own, the office supplies and equipment requirements
of the Regional State Prosecution Office shall be provided for by the central office upon proper
requisition of the Regional State Prosecutor.
This Order takes effect immediately and shall remain in force until further orders.
Copy furnished:
All concerned.
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Appendix "D"
Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN
Department ofJustice
Manila
In the interest of public service for the efficient delivery of prosecutorial services and pursuant to existing laws, paragraph 11 ofDepartment Order No. 318, Series 1991 is hereby amended
to read as follows:
"Designate a prosecutor from another province or city within the region
or a state prosecutor in the Regional State Prosecution Office, as Acting City or
Provincial Prosecutor, to investigate and prosecute a case in instances where parties
may question the partiality or bias of prosecutors of a particular provincial or city
prosecution office or where the city ofprovincial prosecutor voluntarily inhibits
himself by reason ofrelationship to any of the parties within the sixth civil degree
of consanguinity or affinity."
This Order takes effect immediately and shall remain in force until further orders.
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Copy furnished:
All concerned.
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Appendix "E"
Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN.
Department ofJustice
Manila
May 11,2000
It has come to the attention of this Office that decision in several cases wherein the penalty
of death had been imposed by the trial court were modified by the Supreme Court and lowered to
reclusion perpetua due to the failure of the prosecutors to allege in the informations or complaints
the attendance of special and other qualifying circumstances.
Thus, in the case ofPeople vs. Ramos, 296 seRA 559, where the prosecutor failed to allege
in the information the relationship of the victim under 18 years of age with the offender who was
her father, the Supreme Court "call (ed) the attention of the members of the prosecution service
and peace officers charged with the preparation of informations and complaints, that the attendant
circumstances provided by Republic Act No. 9659 must be specifically alleged in an information
for rape in order that they may properly qualify the crime to the penalty specially prescribed by
the law." See also the cases of People vs. Gallo, G.R. 124736, Sept. 29, 1999, citing People vs,
Garcia, 28lSCRA 463.
It has also been observed that prosecutors have been negligent in failing not only
to cite qualifying circumstances but also to prove aggravating circumstances attendant to
the case, thus, instead of securing penalties in the maximum period, only the minimum or
medium periods are imposed by the courts. There is a need to cite aggravating circumstances
in the information or complaint even if they can be proved in court, if not alleged, for the
following reasons: First. if the accused pleads guilty during arraignment, there is no need for
the prosecution to present evidence in support thereof Second. the trial prosecutor may not
be the same prosecutor who conducted the preliminary investigation and therefore, he may
not be aware of the aggravating circumstances established in said investigation. The allegation of the aggravating circumstances in the information or complaint will therefore serve as
a reminder to the trial prosecutor in his presentation of evidence.
continued, next page >
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Appendix "F"
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II.
Republika ng Pilipinas
KAGAWARAJ.'l NG KATARUNGAN
Department ofJustice
Manila
May 3, 2000
In the interest of the service and for the purpose ofpromoting efficient and effective administration ofjustice, the preparation of a trial guide is henceforth required in the prosecution of all
cases involving heinous and grave felonies or offenses.
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 the attached matrix.
Regional, Provincial and City Prosecutors, and their assistants, and the State Prosecutors in
the Office of the Chief State Prosecutor are enjoined to strictly comply with this Circular.
This Circular takes effect immediately and shall remain in force until revoked.
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11
TRIAL GUIDE
A. The Case
I.
The names of prosecution witnesses and the synopsis of the facts to be testified by each.
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Appendix "G"
Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN .
Department ofJustice
Manila
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TO:
ALL PROSECUTORS
SUBJECT:
JURlSDICTION TO CONDUCT PRELIMINARY INVESTIGATION OF
CASESAGAlNST PUBLIC OFFICERSIEMPLOYEES
In the Interest of the Service, and the pursuant to the Supreme Court's ruling in Honasan II
vs. Department ofJustice (DOl) Panel ofInvestigative Prosecutors G.R No. 159747, April 13, 2004
this Office hereby makes the following observation relative to the exercise of this Department's
jurisdiction to conduct preliminary investigation proceedings of cases involving public officers
and/or employees:
1. The DOJ is not precluded from conducting any investigation of cases involving
violations of penal laws, even if the same involves public officers and/or employees. - Sec. 13 Article XI of the constitution, Sec. 15 of the Ombudsman Act of 1989
and Sec. 4 of the Sandiganbayan Law, as amended, do not grant to the Honorable
Ombudsman exclusive jurisdiction to investigate offenses committed by the public officers or employees. The authority of the Ombudsman to investigate offenses involving
public officers or employees is concurrent with other government investigating agencies such as provincial, city and state prosecutors.
2. The DOJ need not be authorized or deputized by the Ombudsman to conduct
the preliminary investigation for complaints against any person, including public
officers and employees, filed before it. The Department's jurisdiction is based on
its authority as the government's principal law agency and prosecution arm tasked to
administer the criminal justice system, to investigate the commission of crimes, and
to prosecute offenders under Chapter I, Title Ill, Book IV ofthe 1987 Administrative
Code, as well as its responsibility for the investigation and prosecution of all cases
involving violations of penal laws under Sec. 1 ofPD. I27S-which authorities are further confirmed by Sees. 2 and 4 Rule 112 ofthe Revised Rules on Criminal Procedure.
Hence, the power to investigate or conduct preliminary investigation on charges against
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Appendix "H"
As a cornerstone in a democratic society, Media provides the means for a free market
of ideas. Access by media to information is given wide latitude most especially when it comes
to matters of governance, public and political affairs. However, it must be noted that the very
Constitutional provision recognizing the right to access to information likewise states that the right
is not without limitations. Access to information is "subject to limitations as may be provided by
law". One such limitation is the access to information, and the publication thereof; on matters
pertaining to children.
The challenge to media practitioners is to carry out their duty of informing the public effectively and at the same time being aware ofthe need to protect and enhance the rights ofthe child
without in any way compromising the freedom of expression or undermining their independence
as journalists. They are in the position to assess the efforts along this line and challenge everyone
to comply with domestic laws and international commitments on the rights of the child.
:
!
This guide is intended to raise media awareness on issues concerning the rights of the child
.and at the same time reinforce journalistic standards, through self- regulation, and contribute to
the protection and promotion of these rights. Existing laws passed protecting the child provides
for confidentiality. The confidentiality clauses are meant to protect the child's right to privacy and
to prevent the child from trauma, social stigma, and further suffering arising from inappropriate
publicity or approaches to media coverage:
With the passage of new laws relating to children, the Special Committee for the
Protection of Children saw the need to update the guidelines it formulated in 2000, consistent
with the provisions provided in the laws.
Declaration of State Policy
The 1987 Constitution declares that the State recognizes the sanctity of family life and shall
protect and strengthen the family as a basic institution. The natural and primary right and duty of
parents in the rearing of the youth for civic efficiency and the development ofmoral character shall
receive the support of the Government.
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The State recognizes the vital role of the youth in nation-building and shall promote and
protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the
youth patriotism, nationalism, and encourage involvement in public and civil affairs.
The State, in the exercise of parens patriae, has the inherent duty to defend and care for
its citizens, children included, considering the special care they need vis-a-vis the right to press
freedom and the right to expression.
Children need special safeguards and care due to their size, vulnerability and young age.
Every effort must be exerted to ensure that children are accorded special protection to enable them
to grow and develop in an atmosphere of peace, dignity, tolerance, freedom, equality and solidarity. The best interest of the child shall be the primordial and paramount concern of everyone.
The United Nations has recognized that children need special care and protection. The
Convention on the Rights of the Child, to which the Philippines is a state party, recognizes that
a child's rights need to be protected and enhanced, among these, the right to privacy, honor and
reputation either as a victim or in conflict with the law.
There are groups of children who need special protection. Children as victims of abuse and
those who are in conflict with the law need to be shielded from inappropriate media coverage and
unwarranted publicity. Reporting of their cases should be done in a manner that would promote
their best interest.
Legal Basis
Presidential Decree No. 603 (Child and Youth Welfare Code) provides for the destruction
of the records of the case such as files of the National Bureau of Investigation, any police
department and any other government agency, after the charges have been dropped.
Republic Act No. 7610 (Special Protection of Children Against Child Abuse, Exploitation
and Discrimination Act) requires "strict confidentiality" on the identity of child abuse victims and to all records pertaining to the case.
Republic Act No. 8369 (Family Courts Act of 1997) provides that all hearings and.conciliation of the child and family cases shall be treated in a manner consistent with the promotion
ofthe child's and family's dignity and worth, and shall respect their privacy at all stages of the
proceedings. It further provides for the confidentiality of all records of cases and the identity
of the parties involved therein unless necessary and with court authority.
Republic Act 9165 (Comprehensive Drugs Act of 2002) provides for the confidentiality .of
records of children under both the voluntary and compulsory submission program or those
of children discharged after compliance with conditions of suspended sentence. It further
providerecords of probation and community service of the child.
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Republic Act No, 9208 (Auti-Trafficking in Persons Act of 2003) provides for confidentiality of proceedings at any stage of the investigation. It shall be unlawful to cause publicity of
any case of trafficked persons when prosecution or trial is conducted behind closed-doors.
Republic Act No. 9262 (Anti-Violence Against Women and Their Children Act of 2004)
provides that all records pertaining to cases ofviolence against women and their children shall
be confidential ... and the right to privacy of the victim shall be respected. Whoever publishes
or causes to be published, in any format, the name, address, telephone number, school, business address, employer, or other identifying information of a victim or an immediate family
member, without the latter's consent shall be liable to the contempt power of the court.
Republic Act No. 9344 (Juvenile Justice and Welfare Act of2006) mandates that all records
and proceedings involving children in conflict with the law from initial contact until final
disposition of the case shall be considered privileged and coniidential.
Rule on Examination of Child Witnesses as promulgated by the Supreme Court
The said laws/rule provides for penal sanctions for any violation of the abovementioned
confidentiality provisions. .
Coverage and Definitions
This guide is primariiy intended for media practitioners in the reporting and coverage of cases
involving children.
A. For purposes of this guide, the term "media practitioners" refer to all persons who are
involved in any form of mass media, including internet, and are not limited to editors, publishers, reporters, columnists, writers, photo journalists, cameramen, announcers, program
hosts, program content producers and directors and film content producers and directors.
B. The child refers to a person below eighteen (18) years of age or one who is eighteen (18)
years of age or over but is unable to fully take care of or protect himself/herself from abuse,
neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or
condition. In particular are the following:
a. Child Victim - is a child who suffered from abuse, exploitation, neglect and discrimination
(e.g. sexual, physical, emotional, verbal, psychological, economic). The term includes
Children Involved in Armed Conflict (ClAC).
b. Child in Conflict with the Law (CICL) - refers to a child who is alleged as, accused of, or
adjudged as, having committed an offense under Philippine laws
c. Child Witness - is any person who at the time of giving testimony is below the age of
eighteen (18) years
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1. In the best interest ofthe child, the identity ofa child victim of abuse, child witness, CIAC or
a CICL shall not be disclosed whether directly or indirectly. No information that would lead
to the identity of the child or any member of his/her family shall be published or broadcast.
2. Photographs, images, or video footage of the face or any distinguishing feature or information of a child victim of abuse, child witness, CIAC or a child in conflict with the law
including his or her family members shall not be taken, published, or shown to the public in
any manner.
3. Exception to this are missing children, children looking for their parents or relatives or any
other similar cases where revealing the identify, is for the best interest of the child.
4. The disclosure of any private or graphic detail of the case, including the medico-legal findings, in public, is a violation of confidentiality provisions under the law.
5. The access. use or dissemination as well as the provision of records of a child shall be
subject to sanctions under existing laws. Records, materials and other evidence recovered or
confiscated during rescue operations of child victims are considered confidential when they
form part of police, prosecution or court records.
6. In the best interest of the child, interview(s) ofa child victim of abuse, child witness, child
involved in armed conflict and a child in conflict with the law should be conducted only
when the child interviewee is assisted by a psychologist or a social worker known to her or
him. In this case, the media practitioner should take into consideration the level of comfort
of the child when asking questions and the length of time spent in the interview. This is to
prevent the child from further traumatisation or victimization.
7. In reporting or covering cases on abuse and exploitation involving children, media practitioners are encouraged to discuss the issues surrounding the case rather than the personal
circumstances of the victim.
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Principle 2
The child's dignity must be respected at all times.
Guide
1. The use of sexualized images of children is a violation of the child's rights. Obscene or
pornographic materials, videos, photographs and other related media should not be subjects
of circulation, publication or broadcast as it is a violation of the right of the child to dignity
and self-worth.
2. Crimes of violence by or against children must be reported factually and seriously without
passing judgment, stereotyping, or sensationalism.
3. There should be a conscious effort to avoid sensationalism and exploitation of the child in
need of any assistance. The release of the child's identity to elicit financial support or aid for
the child's medical care is strongly discouraged.
4. The personal circumstance of the child which will tend to sensationalize the case must be
avoided. The child's life should not be treated as a movie.
Principle 3
Children have the right to be heard. Access to media by children should be encouraged.
Guide
1. Whenever possible, give children access to media for them to be able to express their own
opinions without inducement of any kind, in any manner or procedure affecting them.
2. When the child is the source of crime-related news or information, his/her identity should be
protected at all times.
Principle 4
The mass media is a partner in the promotion of child rights and the prevention of
child delinquency, and is encouraged to relay consistent messages through a balanced
approach.
Journalistic activity which touches on the lives and welfare of children must be carried
out with sensitivity and appreciation of the vulnerable situation of children, so that
children are not re-victimized or re-traumatized.
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Guide
1. On media coverage 'of specific cases, the present as well as the long-term implications for
the child's recovery, rehabilitation and reintegration shall be taken into consideration by all
those involved in deciding on and implementing the said approaches to media coverage.
2. It is the responsibility of the media to verify the status of an organization which purports to
speak or represent the child, before any airing, broadcasting or publication in behalf of the
child. The organization must be duly accredited, registered or licensed by the Department of
Social Welfare and Development (DSWD) or by any appropriate government agency.
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International Federation bf Journalists' Draft Guidelines and Principles for Reporting on Issues
Involving Children (Adopted at Recife, Brazil, 2nd May 1998)
All journalists and media professionals have a duty to maintain the highest ethical and professional standards and should promote within the industry the widest possible dissemination of information about the International Convention on the Rights of the Child and its
implications for the exercise of independent journalism.
Media organizations should regard violations of the rights of children and issues related to
children's safety, privacy, security, their education, health and social welfare and all forms
of exploitation as important questions for investigation and public debate. Children have an
absolute right to privacy, the only exceptions being those explicitly set out in these guidelines.
Journalistic activity which touches on the lives and welfare of children should always be
carried out with appreciation of the vulnerable situation of children. Journalists and media
organizations shall strive to maintain the highest standards of ethical conduct in reporting
children's affairs and, in particular, they shall:
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ADDITIONAL REFERENCE
Strive for standards of excellence in terms of accuracy and sensitivity when reporting on
issues involving children:
Avoid programming and publication of images which intrude upon the media space for
children with information which is damaging to them;
Avoid the use of stereotypes and sensational presentation to promote journalistic material
involving children;
Consider carefully the consequences of publication of any material concerning children
and shall minimize harm to children;
Guard against visually or otherwise identifying children unless it is demonstrably in the
public interest;
Give children, when possible, the right of access to media to express their own opinions
without inducement of any kind;
Ensure independent verification of information provided by children and take special care
to enschild informants at risk;
Avoid the use of sexualized images of children;
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Use fair, open and straight forward methods for obtaining pictures and whenever possible,
obtain them with the knowledge and consent of children or a responsible adult, guardian
or care grver;
Verify the credentials of any organization purporting to speak for or represent the interest
of children;
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Not make payment to children for material involving the welfare of children or to parents
or guardians of children unless it is demonstrably in the interest of the child;
Journalists should put to critical examination the reports submitted and the claims made by
Governments on implementation of the UN Convention on the Rights of the Child in their
respective countries.
Media should not consider and report the conditions of children only as events but should
continuously report the process likely to lead or leading to the occurrences of these events.
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Appendix "1"
Region II
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Region ill
15. CP Eufracio S. Marquez - OCP Meycauayan City
16. lstAPP Floro F. Florendo - OPPNueva Ecija
17. 2nd ACP Oliver S. Garcia - OCP Angeles City
18. Admin Officer V Elvin G. Simon - OPP Pampanga
19. Admin Officer V Aristotle B. Mercado - OCP Angeles City
20. Admin Officer N Ma. Theresa A. Maclang - OPP Bulacan
21. Admin Officer ill Jaime P. Navarro - OCP Olongapo City
Region IV
22. PP Josephine Caranzo-Olivar - OPP Mindoro Oriental
23. CP Miguel Noel T. Ocampo - OCP Calarnba City
24. CP Alfredo P. Juarez, Jr. - -OCP Tayabas City
25. Admin Officer V Eloisa B. Briones - ORSP
26. Admin Officer V Rizalina R. Espina - OCP Batangas City
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Region V
Region VI
1. SP II Kenneth John N. Amamanglon - ORSP
2. 4 th ACP Peter D. Baliao - OIC-OCP iloilo
3. PP Daniel M. Villaflor - OPP Negros Occidental
4. Admin Asst. II Remedios A. Jamelo - ORSP
5. Admin Officer V Consolacion E. Paciiicar - OPP iloilo
6. Admin Officer IV Henry P. Dela Cruz - OCP Iloilo
7. Admin Officer V VIrgilio 1. Leeping - OP~ Negros Occidental
8. Admin Officer ill Myrna S. Venegas - OCP Bacolod City
Region vn
9. RSP Fernando K. Gubalane - ORSP
10. SP II Llena G. Ipong-Avila- ORSP
11. CP Nicolas C. Sellon - OCP Cebu City
12. CP Aida A. Sanchez - OCP, Naga City
I3.1stAPP Macario 1. Delnsa- OPP Bohol
14. PP Diosdado D. Hermosa - OPP Oriental Negros
15. Admin Asst. II Jasmine O. Miro - ORSP
16. Admin Officer IV LeteciaA. Lacsican - OCP Dumaguete City
17. Admin Officer V Milagros B. Oncog - OCP Tagbilaran
18. Admin Officer V Cecil B. Gadrinab - OPP Cebu
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RegionVIll
19. RSP Francisco Q. Aurillo, Jr. - ORSP
20. ARSP Bibiano C Reforzado - ORSP
21. PP Cesar M. Merin - OPP Leyte
22. APP Agustin M. Avalon - OPP, Western Samar
23. 1stAPP Carlos R. Daiz, Jr. - orc-ocp, Catbalogan, Samar
24. Admin Officer V Alma R. Ballete - ORSP
25. Admin Officer V Alfredo A. Bardaje - OPP Wester Samar
26. Admin Officer V Norma 1. Carbonilla - OPP Southern Leyte
27. Admin Officer V Cesaria N. Cazon - OCP Calbayog City
28. Admin Officer III Elias U. Vivero, Jr. - ORSP
9. CP Ramon E. Rodrigo
10. IstACP AlvinA. Almora
11. Ms. Luzviminda D. Toledo
OCP Las Piiias
12. CP Marilyn Cynthia Fatima M. Luang
13. Pros. II Benthom Paul C. Azares
14. Ms. Flordeliza B. Rivera
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OCPRizal
41. PP Edgardo C. Bautista
42. APP Gloria M. De Guzman
43. Ms. Emily R. Trajano
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Region X
5.
6.
7.
8.
9.
Region XI
10: PP Ruben 1. Pasamonte - OPP Davao del Norte
II. PP Artemio A. Tajon - OPP Davao del Sur
12. CP Raul B. Bendigo - OCP Davao City
13. CP Janet Grace D. Fabrero - OCP Panabo City
14. CPNoelP. Palma-OCPTagumCity
15. CP Barbara Mae P. Flores - OCP Davao City
Region XII
16. RSP Maranao C. Danganan - ORSP
17. PP Emmanuel S. De Peralta - OPP Sultan Kudarat
18. ACP Renato P. Consebit - OCP Tacurong City
19. CP AI P. Calica - OCP Kidapawan City
20. Ist APP Felipe Vicente A. Velasco - OPP Sarangani Province
Region XIII
21. RSP Horacio C. Gonzaga - ORSP
22. PP Marigel S. Dagani-Hugo - OPP Agusan del None
23. IstAPP FIorito G. Cuartero - OPP Surigao del Sur
24. PP Danny C. Serrano - OPP Cabadbaran City
25. CP Manuel N. Tesiorna, Jr. - OCP Surigao City
Region XIV
26. RSP Abubakar C. Barambangan - ORSP
27. CP Elias R. Yusoph - OCP Marawi City
28. PP Paca-ambung C. Macabando - OPP Lanao del Sur
29. PP Akilali P. Balt - OPP SharifIKabunsuan
3D. ACP Ramy Guiling - OCP Marawi City
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Supreme Court
Ombudsman
~. Atty. Elvira C. Chua
4. Dir. Mothalib Onos
Commission on Elections
9. Dir. Ferdinand T. Rafanan
10. Dir, Josllyn P. Demesa
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Department of Justice
37. CSP Jovencito R. Ziliio
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user-friendly guide and a "how-to" manual for those who are pressed for time in preparing
the various pleadings and communications required of prosecutors. it was written to
ensure that the administration of justice is equitably served.
Republic of the Philippines
National Prosecution Service
Departmeflt of Justice
P. Faura. E'mita, Manila
Tel. No, 5238481
Website:http://www.doj.gov.ph
ISBN 978-971-56 j -753-6
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This Revised Manual for Prosecutors with Special Sections on Human Rights and Tax Cases
was made possible with support provided by The Asia Foundation, Millennium Challenge
Corporation, U,S, Aqency for International Development, and the Asian Development
Bank, The opinions expressed here are those of the authorts) and do not necessarily reflect
the views ofThe Asia Foundation, the Millennium Challenge Corporation, the U.S. Agency
for international Development, or the Asian Development Bank.