You are on page 1of 328

I

I
I
I
I
I
I
I
I
I
I
I
I
1
.1
I
I

Revised

MANUAL
PROSECUTORS
for

: KATHLEEN ROSARIO 0. DE LA CRUZ-ESPINOSA


Assistant City Prosecutor

Special Sections on Human Rights and Tax Cases


2008

ti..
~

f ..

,, ~ .

.~

I'

I
I
I
I
I
I
I
I
I
I
I
I
I.
I
I
I
I
I

-'

'

'

}.
Published by the National Prosecution Service, Department of Justice, Manila, Philippines with funding
support from the United States Agency for Interriational Develbpment through its Rule of Law Effectiveness
Project, The Asia Foundation, Millenium 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

......
i
~

i'

J.

.. . c .

.. ..
~

Revised.Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

CONTENTS
FOREWORD ................................................................................................ 19
ACKN'OWLEDGMENT ........................................................................ 21
PART I: PROSECUTION OF OFFENSES ............................................... 23
I. GENERAL PRINCIPLE .............................................. :......................... 23

II. DEFINITION OF TERMS ................................................................. 23


Ill. GENERAL RULES .............................................................. 26
A. COMPLAINT ...................~- 26
1. Form of the Complaint Filed Before the Prosecutor's Office ........ 26
2. Policy on Forms of Complaint Filed With the Prosecutor's Office...... 26
3. Persons Authorized to File Complaints .......................................... 27
4. Law Enforcement Officers/Public Officers Authorized !o File
Criminal Complaints ...................................................................... 29
5. Institution of Criminal Action; How and Where Commenced ..... 30
6. Place Where Criminal Action is to l>e Institu[ed ............................ 30
7. Who Prosecutes Criminal Actions ....... ....... ......... ....... .... ... ...... .... . 3 1

B. INFORMATION ............................................................................ 31
1. The Information Need Not be Under Oath; .Matter \Vhich a
Prosecutor Must Certify Under Oath in the Information ............... 32
2. Contents of the Caption of an !nformation .................................... 32
C. RULES COMMON TO BOTH A COMPLAINT
AND AN INFORMATION ...................................................... 32
1. Sufficiency of a Complaint or an Information ............................... 32
a. the name of the tlccused ........................................................... 32
b. the designation of the offenses committed .............................. 33
Examples of Conclusions of Law ............................................ 33
Examples of Averments of Ultimate Facts ............................... 34
c. the cause of the accusation ....................................................... 35
d. place where the offense was committed .................................. 35
e. date of the commission of the offense ..................................... 36
f. name of the o5fended party ....................................................... 36
2. Other Essential Matters to be Alleged in the Complaint
or Information ................................................................................ 36
3. Number of Offenses Charged ........................................................ 37

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

4. Title of the Complaint or Information ............................................ 37


5. Qualifying and Generic Aggravating Circumstances; To be
Alleged and Proved ........................................................................ 38
6. List of Prosecution Witnesses ........................................................ 38
7. Amendment of the Complaint or Information ............................... 38
a. before the accused pleads ..,. ..................................................... 38
b. after the accused pleads ........................................................... 38
c. during the::tfial. ......................................................................... 39
8. Amendment by Substitution ........................................................... 39
a. Requisites for the substitution of a defective information
with the correct one .................................................................. 39
9. Prescriptive Period; .How Computed and Interrupted .................... 40
a. for an offense penaiized under the .K.evised Penal Code .......... 40
b. for violation of a special law or ordinance .............................. 40
c. for cases falling within the jurisdiction of the Katarungan
Pambarangay ............................................................................ 41
IV. RELEVANT JURISPRUDENCE ......................................................... 41

PART II: INQUEST ..................................................................................... 44

I. GRNERAL RULES ................................................................................ 44


A. Concept: 44
B. Coverage .............................................................................................. 44
C. Designation of an Inquest Prosecutor ................................................. 44
D. Venue of Inquest Cases ....................................................................... 44
E. Date and Time of the Conduct of Inquest Proceedings ....................... 45
II. PROCEDURE ......................................................................................... 45
A. COMMENCEMENT OF THE INQUEST PROCEEDINGS ....... 45
I. When Commenced ......................................................................... 45
2. Documents Required in Specific Cases ........................................ 45
3. Incomplete Documents .................................................................. 48
4. Instances Where the Presence of the Detained Person is
Dispensed With ............................................................................. 48
5. Charges and Counter-charges ........................................................ 48
6. Determination of the Arrest by the Inquest Prosecutor Meaning
of Probable Cause in Inquest Cases ............................................... 48
7. Where Arrest of the Detained Person Was Not
Properly Effected............................................................................ 49
8. Where the Arrest of the Detained Person Was Prope::-ly
Effected .......................................................................................... 50

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

B. INQUEST PROPER .......................................................................... 50


I . Contents of the Information ........................................................... 51
2. Action to be Taken When There is an Absence of
Probable Cause ............................................................................... 51
3. Action to be Taken When the Arrested Person Executes a
Waiver of Article 125 of the Revised Penal Code ......................... 52
4. Posting of Bail by the Arrested/Detained Person ........................... 52
a. If offense is bailable ............................... ,................................. 52
b. If offense is non-bailable ......................................................... 52
5. Termination of Inquest Proceedings .............................................. 52
III. OTHER .l\iIATTERS .............................................................................. 53
A. Presence of the Inquest Prosecutor at the Crime Scene ................ ~ .... 53
B. Sandiganbayan Cases .......................................................................... 54
C. Absence or Unavailability of the Inquest Prosecutor .......................... 54
D. Recovered Articles .............................................................................. 54
1. Responsibility of the Inquest Prosecutor ....................................... 54
2. Deposit of Recovered Articles/Properties ...................................... 55
E. Release of Recovered Articles ........................................................... 55

IV. RELEVANT JURISPRUDENCE ..................................................... 55


V. HELPFUL HINTS ................................................................................. 5 7
TEMPLATES OF INQUEST FORMS ..................................................... 59
NPS Investigation Form No. 01, s. 2008 - lnve3tigation
Data Form .............................................................................. 60
NPS INQ Form No. 01, s. 2008 - Order to Submit
Additional Evidence/ Documents .......................................... 62
NPS INQ Form No. 02, s. 2008 - Release Order of
Detained/Arrested Person ...................................................... 64
NPS INQ Form No. 03, s. 2008- Subpoena to Respondents ........... 66
NPS INQ Form No. 04, s. 2008 - Request for Preliminary
Investigation and Waiver of Article.125,
Revised Penal Code ............................................................... 67
NPS INQ Form No. 05, s. 2008 - Certification ................................ 68
NPS INQ Form No. 06, s. 2008 - Release Order of
Recovered Articles ................................................................. 69
NPS INQ Form No. 07, s. 2008 - Request for Release
with Undertaking ................................................................... 71
FLOWCHART OF THE INQUEST PROCEEDINGS ............................ 73

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

PART III: SUMMARY INVESTIGATION ............................................. 74


I. GENERAL RULES .................................................................................. 74

..

A. Concepts and Principles ...................................................................... 74


B. Coverage ............................................................................................. 74

II. PROCEDURE- ......................................................................................... 76

PART IV: PRE-LIMINARY INVESTIGATION ...................................... 77

I. GENERAL RULES .................................................................................. 77


A. Concepts and Principles ..................................................................... 77
B. Nature of a Preliminary Investigation ................................................. 77
1. It is an Executive Function ..................................................... ~...... 77
2. It is Preliminary in Nature .............................................................. 77
3. It is a Summary and Inquisitorial Proceeding .................:.............. 77
4. It is a Judicial Inquiry or Proceeding ............................................. 78
C. Right to a P1eliminary Investigation ................................................... 78
1. It is Not a Constitutional Right .................. ~ 78
2. It is Merdy a Sta.tutor; Grant.. ................................................ 78
3. It is a Personal Right ................................................................ 78
4. It is a Substantive Right.. ........................................................ 79
D. Coverage ............................................................................................ 79
E. Quantum of Evidence Required ......................................................... 79
1. "Probable Cause" Defined ................................................... ;... 79
2. No Fixed Formula for Determining Probable Cause ............... 80
3. Sound Discretion of the Prosecutor ......................................... 80
F. Purposes of the Conduct of a Preliminary Investigation...................... 81
G. Officers Authorized to Conduct Preliminary Investigations ............... 81

II.. PROCEDURE - ......................................................}........... 83


A. Commencement of the Preliminary Investigation .............................. 83
a. Contents of the Complaint ............................................................. 84
b. Number of Copies of Affidavits; Other Requirements .................. 84
B. Initial Actjon by the Investigating Prosecutor on the
Complaint Filed .................................................................................. 85
C. Service of the Subpoena Together with the Complaint and
Supporting Affidavits and Other Documents to the Respori.dent/s ..... 86
1. To Prevent Loss of Documents ...................................................... 86
2. Service to a Respondent Residing in a Distant Place :: .............. :... 87

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

3. Where Respondent Cannot be Subpoenaed or if Subpoenaed


Does not Submit Counter-Affidavit ............................................... 87
4. Objects as Evidence ....................................................................... 87
5. Guidelines to be Observed in the Service of Subpoenas ............... 87
D. Submission of the Counter-affidavits by the Respondent/s ............... 88
1. Extension of Time Within Which to Submit
Respondent's Counter-Affidavit.. ................................................... 89
2. Filing of a Motion to Dismiss, Memorandum or Motion
in Lieu of a Counter-Affidavit.. ...................................................... 89
a. General Rule ............................................................................ 89
b. Exceptions ............................................................................... 90
3. Effect of the Filing of a Motion to Dismiss or a Motion for a
Bill of Particulars and Other Similar Pleadings ............................. 90
4. Action on Motions to Dismiss on the Basis of an Affidavit of
Desistance....................................................................................... 90
5. Suspension of Proceeding> Due to the Existence of a
Prejudicial Question ....................................................................... 91
a. Concept of a Prejudicial Question ........................................... 91
b. Elements of a Prejudicial Question ......................................... 91
c. Issuance of an Order Suspending the Proceedings Due
to the Existence of a Prejudicial Question; Written Approval
of the Head of Office Required ............................................... 91
E. \Vhen to Set Case for Clarificatory Questioning ................................ 92
i. No Right to Examine or Cross-Examine ....................................... 92
2. Records/Notes During the Clarificatory Hearing ........................... 92
3. No Right to Counsel.. ..................................................................... 92
F. Reply-Affidavits, Rejoinders and Memoranda;
When to Allow the Filing Thereof. ..................................................... 93
G. When Complaints May be Consolidated............................................ 93
H. Actions on Motions to Disqualify/Inhibit .......................................... 94
I. Submission of the Case for Resolution ............................ ,................... 94
J. Preparation of the Resolution .............................................................. 94
1. When 'fhere is Lack of Probable Cause ......................................... 94
2. When There is a Findi}ng of Probable Cause .................................. 94
3. Form of the Resolution and Number of Copies ............................. 95
a. Caption of Resolution .............................................................. 95
b. Names of Parties ...................................................................... 95
c. Case Number. ........................................................................... 96
d. Designation of Offense/s Charged ........................................... 97
e. Contents of the Body of the Resolution ................................... 97
f. Parts of a Resolution ................................................................ 97
g. Parties Who Need to be Furnished a Copy of the Resolution .... 98
h. Signatures and Initials of Investigating Prosecutor ................. 98
4. Period to Conduct the Preliminary Investigation ........................... 99

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

5. Written Approval Required in the Dismissal of a Complaint or


the Filing of an Infonnation in Court ............................................. 99
K. Transmittal of the Recommendatory Resolution and Information
Together with the Complete Record of the Case ................................ 99
1. Preparation of the Information (Ind its Contents ............................ 99
a. lack of a certification .............................................................. 100
b. designation of offense not binding upon the court ................ 100
2. Recommended Bail; How Written ......................................... :..... 101
3. Documents to be Attached to the Information ............................. 101
4. Confidentiality of Resolutions ............................ ~ ........................ 101
L. Action of the Chief State/Regional State/Provincial/City Prosecutor
on the Recommendator; Resolution ................................................. 101
M. Re-opening of the Preii:rninary Investigation ................................... 102
N. Promulgation of the Resolution; Modes of Service .......................... 102
0. Filing of the Information in Court; Rules to Follow ......................... 103
P. Action on a Motion for Reconsideration ........................................... 103
Q. Action on a Reinvestigation .............................................................. 103
1. Instances Where a Reinvestigation May be Conducted ............... 104
a. pursuant to a court order for cases already filed in court ....... 104
b. pursuant to an order or directive from the
Regional State Prosecutor or the Secretary of Justice ........... 104
III. RELEVANT JURISPRUDENCE ............................ ,...................... 105

TEMPLATES & SAMPLE FORMATS USED IN THE


CONDUCT OF THE PRELIMINARY INVESTIGATIONS ......... 107
NJ>S INV Form No. 01, s. 2008- Investigation Data Form ........... 108
NPS INV Form No. 02, s. 2008 - Resolution Dismissing
the Complaint ....................................................................... 110
NPS INV Form No. 03, s. 2008 - Subpoena to Complainant.. ....... 112
NPS INV Form No. 04, s. 2008 - Subpoena to Respondent/s ........ 113
NPS INV Form No. 05, s. 2008 - Subpoena to Respondent to
Obtain Copies of the Complaint
and Other Supporting Evidence .............. :............................ 114
NPS INV Form No. 06, s. 2008 - Order Suspending the
Preliminary Investigation Proceeding
Due to a Prejudicial Question ... ... ... ............. . ...... ............. ... . 115
NPS INV Form No. 07, s. 2008 - Subpoena for
Clarificatory Hearing ........................................................... 116
NPS INV Form No. 08, s. 2008 - Order of Consolidation ............. 117
NPS INV Form No. 09, s. 2008 - Regional Order Designating a
Prosecutor to Conduct the Preliminary Investigation .......... 118

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Sample Resolution ........................................................................... 119


Sample Information I ...................................................................... 123
Sample Information 2 ...................................................................... 125
Sample Information 3 ...................................................................... 127
Sample Information 4 ...................................................................... 129
NPS SAMPLE FORMAT "A", s. 2008 - Order for the
Submission of Memoranda .................................................. 131
NPS SAMPLE FORMAT "B", s. 2008 - Certification ................. 133
FLOWCHART OF THE PRELIMlNARY I~'VEST!GATION PROCESS
Flowchan 1 ............................................................................................ 134
Flowchart 2 ............................................................................................ 135.
Flowchart 3 ............................................................................................ 136
PART V: ARRAIGNMENT AND PLEA....................... 137
I. GENERA.L RULES ................................................................................ 137

A. Principles ........................................................................................... 137


B. Concepts ............................................................................................ 137
II. PROCEDURE ............................................................................... i37
A. Duties of the Trial Prosecutor .......................................................... 13 7
1. Before the Arraignment of the Accused ....................................... 13 7
2. During the Arraignment ............................................................... 138
~ 3. After the Arraignment .................................................................. 138
l-!!) Effect of the Filing of a Petition for Review .................................... 138
C. Applicable Rules in Cases Where the Accused Pleads Guilty
to a Lesser Offense ........................................................................... 139
D. When a Plea of Guilty to a Lesser Offense Not Allowed ................. 139
E. When Accused Pleads Guilty to a Capital Offense .......................... 139
III. RELEVANT JURISPRUDENCE ................ 139

PART VI: PRE-TRIAL.............................................................................. 140

I. CONCEPT~ 140

II. SUBJECT MATTERS OF A PRE-TRIAL CONFERENCE . 140


A. Plea Bargaining ................................................................................. 140
B. Stipulation of Facts ............................................................................ 140
C. Marking for Identification of Evidence of the Parties ....................... 141

Revised Manual for Prosecutors

I
I
I

I
I
I
I
I
I
I
I

I
I
I
I
I
I
I
I

D. Waiver of Objections to the Admissibility of Evidence .................... 141


E. Modification of the Order of Trial.. ................................................... 141
F. Such Other Matters ............................................................................ 141
III. NON-APPEARANCE AT THE PRE-TRIAL CONFERENCE ...... 141

rv. DUTIES OF THE PROSECUTOR AT THE


PRE-TRIAL CONFERENCE ........................................................... 141
A. Before the Pre-trial Conference ........................................................ 141
B. During the Pre-trial Conference ........................................................ 141
C. After the Pie-trial Conference ........................................................... 142

"7:. RELEVANT JURISPRUDENCE ......................................................... 142

PART- VII: BAIL


...................................................................................:.... 143
..
I. CONCEPTS .......................................................................... :................. 143
A: Purpose of Bail. .................................................................................
B. Nature of the Right to Bail ................................................................
C. Basis of Bail ................ :................................................ ~ ...................
D. When Bail Not Required ...................................................................

143
143
143
143

II. DUTIES OF THE PROSECUTOR ..................................................... 144


A.
B.
C.
D.

When Bail is a Matter of Right.. ...................................................... 144


When Bail is a Matter of Discretion .......................................... ,...... 145
Right to Notice, Mandatory ........................ ,..................................... 145
Right to Bail in Inque::;t Cases .......................................................... 146
E''. Guidelines in Recommending Bail.. ................................................. 146
F. Criteria in Recommending the Amount of Bail ................................ 146
G. Rules in Computing the ~ail to be Recommended .......................... 147
H. Hearing on Petition for Bail in Non-bailable Offenses .................... 149
I. Exception to the Rule on Non-bailable Offenses ..................
149
J. Right of the Prosecution to Present all Evidence During the
Bail Hearing .............................................. ,....................................... 149
K. Effect of a Denial of the Opportunity to Present Evidence for
Purposes of the Petition for Bail.. .................................................... 149
L. Petition for Bail in Continuous Trial ................................................ 149
M. Cancellation of the Bail Bond ... ... .. .. .. .... .... .. ... ..... .. ......... .... ........... .. 150

!..........

ID. OTHER MATTERS ................................................................... 150


A. Release on Recognizance; Guidelines ....................... :...........-.--..< 150
Requirements for the Grant of recognizance
Under R. A. No. 6036 ....................................................................... 150

B:

10

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I

I
I
I
I
I
I
I
I

IV. RELEVANT JURISPRUDENCE ....................................................... 151

Part VIII: ARREST ................................................................................... 152


I. Remedy of the Prosecutor When no Warrant of Arrest was
Issued by the Judge ............................................................................. 152
II. Request for a copy of the Return ........................ ~ 152
III. Relevant Jurisprudence ...................................................................... 152

PART IX:

@ ....................................................................................... 153

I. GENERA.L RULES ............................................................ ., ........

#'

153

A. Concept ............................................................................................ 153


B. Coverage ..................................... :...................................................... 153

II. TRIAL PREPARATION ...................................................................... 153


A. Preparation of the Trial Brief. ........................................................... 153
B. Order of Presentation of Witnesses ................................................... 153
C. Offer of Exhibits ............................................................................... 154
D. Defense Evidence .............................................................................. 154
E. Discharge of Accused to be State Witness ........................................ 154
F. Admission to the Witness Protection Program of an Accused
Who Has Been Discharged ............................................................... 155
G. Other Persons Who May Avail of the Witness Protection Program .... 155
H. Motions for Postponement by the Accused....................................... 156
I. Discontinuance of Proceedings .......................................................... 156
J. Presentation of Evidence .................................................................... 156
l
III. PROCEDURE.............................................. ~ ....................................... 157
A. Continuous Trial until Terminated ....................................................
B. Order of Trial. ....................................................................................
C. Presentation of Witnesses ..................................................................
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.. ...................

IV. RELEVANT JURISPRUDENCE .......................................................

Revised Manual for Prosecutors

157
157
158
159
159
159
159
159

/'-_

16~~~\

11

I
I
I

PART X: APPEAL/PETITION FOR REVIEW ..................................... 162


I. GENERAL RULES ................................................................................ 162

A. What May be Appealed .....................................................................


B. Venue for the Filing of the Appeal/Petition for Review ....................
C. Period to File the Appeal/Petition for Review ..................................
D. Form and Contents: ............................. :.............................................
E. Documentary Attachments ................................................................
F. Effect of Failure to Comply with the Requirements ..........................
G. When an Information has Been Filed in Court .................................
H. When Accused/Appellant is Arraigned During the
Pendency of the Appeal/ Petition for Review ...................................
I. Appellee's Comment. .........................................................................
J. Summary Action .................................................................................
K. Withdrawal of tne Appeal/Petition for Review .................................
L. Motion for Reinvestigation Pending Appeal .....................................
I. When an Information Has Not Yet Been Filed in Court ..............
2. When an Information Has Been Filed in Court ...........................
M. Disposition of the Appeal/Petition for Review .................................
N. Motion for Reconsideration ............................ :.................................
0. Effect of Filing the Appeal/Petition for Review .............. ~ ................

I
I
I
I
I
I
I
I
I
I
I
I
I
I

I
I

162
162
162
163
163
164
l64
164
164
164
164
165
165
165
165
166
166

II. RELEVANT JURISPRUDENCE ........................................................ 166

PART XI: MISCELLANEOUS MATTERS ............................... ,............ 168


I. HOLD DEPARTURE ORDERS AGAINST ACCUSED PERSONS ..-.168
II. CANCELLATION OF TRAVEL DOCUMENTS .................... 168

III. HANDLING OF CRIMJNAL(;OMPLAINTS FILED


AGAINST PUBLIC OFFICERS AND EMPLOYEES ................ 169
IV. NOTIF,CATION OF PROSECUTOR OF THE FILING OF
AN APPLICATION FOR PROBATION ........................................... 169
A. Comment on the Application for Probation ......................................
B. Release of Applicant for Probation ...................................................
C. Objection to the Grant of Probation ..................................................
D. Hearing for Revocation of Probation ................................................

169
170
170
171

V. PROCEDURE IN CASES INVOLVING CHILDREN.:: .......... ~-: .. :.... 171


A. Inquest Proceedings ...... ......... ... .. ......... .... .. .. .............. . .. . .... ....... .... .... 171
;.t

12

Revised.Manuel for Pm~ecutors

I
I
I
I
I
I
I
I
I
I

I
I

I. If the Child is the Complainant.. ..................................................


2. If the Child is the Suspect ...........................................................
3. Guidelines in the Conduct of all Inquest Proceedings Involving
a Child ..........................................................................................
B. Preliminary Investigations.................................................................
1. If the Child is the Victim ..............................................................
2. If the Child is the Respondent ......................................................
C. Protective Custody of the Child ........................................................
p. Termination of Inquest/Preliminary Investigation ............................

171
172
173
174
174
175
175
175

VI. PROCEDURE INVOLVING VICTIMS OF TRAFFICKING IN PERSONS


AND VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ...176
A. Preliminary Investigation .................................................................. 176
B. Evidence Gathered/Built-up by the Law Enforcer; Need to Check. .... 177
C. Prosecution Guidelines ...................................................................... 178
VII. PROCEDURE FOR THE FILING OF A PETITION FOR CERTIORARI
THROUGHTHEOFFICEOFTHE
CHIEF STATE PROSECUTOR. ..................................... 178
A. When to File Petition for Certiorari ..................................................
B. Coverage ..................................................... :.....................................
C. Period to File the Petitio::.i .................................................................
D. Action to be Taken by the Trial Prosecutor .......................................
E. Action of the Chief State Prosecutor .................................................

178
17R

178
179
180

VIII. HANDLING OF ENVIRONMENTAL CASES ............................ 180


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

I
I
I
I

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

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


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

I
I

B. TOXIC SUBSTANCES AND HAZARDOUS WASTE ACT


(R. A. No. 6969) ................................................................................ 183
1. Evidence Required ....................................................................... 183

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


1. Evidence Required ....................................................................... 183
2. Pointers .................................................................................... ~ ... 184

Revised Manual for Prosecutors

13

I
I
I
I
I
I
I
I
I
I

I
I
I
I
I
I
I
I
I

F. ECOLOGICAL SOLID WAS1E MANAGEMENT ACT (RA9003)-... 185


1. Pointer .......................................................................................... 185
G. WILDLIFE CONSERVATION AND PROTECTION ACT
(R.A No. 9147) .......................................................................... 185
1. Evidence Required ....................................................................... 185
H. CHAJNSAW ACT (R. A. No. 9175) .................~ 187
1. Evidence Required ....................................................................... 187
I.

CLEAi~ WATER ACT

(R. A. No. 9275) ............................. 187


1. Evidence Require4 ................... ,............................ :.................. :... 187
2. Pointer ................................................ .-......................................... 188

IX. PROSECUTION OF MONEY J_,AUNDERJNG CASES ...-~ 188


-

~-

A. General Rules ..................................................................................... 188


B. Duties of the Prosecutor ...... ;............................................................. 189

SPECIAL SECTION ON PROSECUTING HUMAN RIGHTS VIOLATIONS


AND PROVIDING AVAILABLE REMEDIES THEREFOR ..... 191
"

I. IN" GENERAL ........................................................................................... 192


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

A. Background ....................................................................................... 198


Definition ......................................................................................... 198
B. Dealing With Torture Under Substantive Law ................................. 199
1. Unconstitutionality ....... ,~.~ 199
2. Direct Crimi!lal Prosecution for Maltre&tment of Prisoners
(Article 235, Revised Penal Code).......................................... J ...... 199
3. Separate and Simultaneous Criminal Actions .............................. 200
4. Prosecution Under the Human Security Act (R. A. No.9372) ..... 206
5.'Resort to Generic Remedies for Human Rights Violations ......... 206
C. Dealing With Torture Under Procedural Law .................................. 207
1. Inadmissibility in Evidence Under the Constitution .................... 207
2. Detection of Torture at the Inquest Stage ..................................... 207
3. Treatment of Torture at the Trial Stage ........................................ 208
III. PROSECUTING CASES OF ENFORCED DISAPPEARANCE 209

.;..,.,

...

A. Background.:.; ... 209'

14

Revis~& Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

B. Remedies Available Under Ordinary Actions ................................... 210


1. Availment of Generic Remedies for Human Rights Violations ... 210
2. Criminal Actions .......................................................................... 210
C. Remedies Available for Information Gathering ................................ 211
1. Rationale ...................................................................................... 211
2. Right to Information; extent thereof. ........................................... 212
3. Right to Information; Limitations Thereto ................................... 213
4. Availing of the Rule on the Writ of Habeas Data .
(A.M. No. 08-1-16-SC, January 22, 2008) ................................... 214
D. Remedies Available for Compelling Offici~l Action or Response .... 218
1. Rationale ....................................................................................... 218
2. Availing of the Rule on the Writ of Habeas Corpus
(Rules of Court, Rule 102) ........................................................... 219
3. Availing of the Rule on the Writ of Amparo
(A. M. No. 07-9-12-SC, October 24, 2007) ................................. 222
.

,r'

IV. PROSECUTING CASES OF EXTRALEGAL KILLING ......... 227


A. Background ....................................................................................... 227
B. Availing of the Writ of Amparo as a Protective Measure ........... : ...... 228
C. Remedies Available for Information Gathering: 229
D. Availment of Generic Remedies for Human Rights Violations ........ 229
E. Prosecution under the Humsn Security Act.. ..................................... 230
F. Criminal Actions ................................................................................ 230
V. PROSECUTING CASES OF INVOLUNTARY DISPLACEMENT .... 231
A. Background ....................................................................................... 231
B. Guidelines in the Delimitation of the Right of Abode and Right
_
to Freedom of Movement, ................................................................. -232
C. Remedies Available for Violation ...................................................... 232
1. Action for Damages Under the Generic Remedies for
Human Rights Violations ............................................................. 232
2. Criminal Action for Expulsion (Art. 127, Revised Penal Code) .... 233
3. Criminal Action for Grave Coercion
(Art. 2S6, Revised Penal code) ................................................... 233
VI. GENERIC REMEDIES FOR HUMAN RIGHTS VIOLATIONS ... 233
A. Present Context ................................................................................. 233
B. Action for Damages under the Civil Code (Article 32) .................... 234
I. Nature and Quantum of Evidence Required ................................ 234
2. By Whom Filed ............................................................................ 234
3. Against Whom Filed .................................................................... 234
4. Grounds to be Alleged (Elements of Cause of Action) ................ 234
5. Relief That May be Granted ......................................................... 235

Revised Manual for Prosecutors

15

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

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

under the Victim Compensation Act (R. A. No. 7309) ..................... 236
1. Legal Basis ................................................................................... 236
By Whom Filed ......................................................................... 236
Procedure for Filing Claims ...................................................... 236
Procedure for Processing of Claims .......................................... 23 7
Time Period ............................................................................... 238
Relief That May be Granted ...................................................... 238

SPECIAL SECTION ON PROSECUTING VIOLATIONS OF 'i tIE NATIONAL


INTERNAL REVENUE CODE (NIRC) & RELATED LAWS ....... 239
I. POINTERS IN THE PROSECUTION OF TAX CASES ............... 240
II. JNSTITUTION OF CRIMIN)..L CASES........................ 241
A. Prosecution of Criminal Actions ....................................................... 241
B, Bail .................................................................................... ~ ............... 241
C. Pre-trial .............................................................................................. 241

III. COMMON TAX OFFENSES (UNDER THE NIRC) ........~ ............. 241
A. Sec. 251, Attempt to Evade or Defeat Tax ..................................... 241
1. Elements of Sec. 254 .................................................................... 241
2. Tax Evasion Connotes the Integration of Three Factors .............. 242
3. Documentary Evidenc~ Required ............................................... 242
B. Sec. 255. Failure to File return, Supply Correct and Accurate Information,
Pay Tax Withheld and Remit Tax and Refund Excess Taxes Withheld on
Compensation .............~..................................................................... 244
I. Elements of Sec. 255 .................................................................... 244
2. Documentary Evidence Required ................................................ 244
3. Expenditure Method/Net-Worth Method ..................................... 245
4. Revised Penal Code Provision on Malversation to Willful
Failure to Remit ............................................................................ 245
5. AI:t. 222 -Officers Included......................................................... 246
C. Sec. 257 (B)(8) - Knowingly U~e Fake Certificate Authorizing
Registration .......................~ ............................................................. 246
1. Elements of Sec. 257 (8)(8) ......................................................... 247
2. Documentary Evidence Required ................................................ 24 7
3. Revised Penal Code Provision on falsification in Relation to
Sec. 257(b)(8) of the NIRC .......................................................... 248

..

D. Sec. 258. Unlawful Pursuit of Business ................ .-.. ~ ...................... 249


1. Elements of Sec. 258 .................................................................... 249
2. Documentary Evidence Required ................................................ 249
16

Revised Manuul for Pro~ecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

E. Sec. 267. Declaration Under Penalties of Perjury ......................... 250


I. Elements of Sec. 267 .................................................................... 250
2. Documentary Evidence Required ................................................ 25Q
F. Sec. 236(J), last par. - Securing More Than One TIN ................... 251
1. Elements of Sec. 236(1) ........................................................ :...... 251
2. Documentary Evidence Required ................................................ 252
IV. RELEVANT JURISPRUDENCE IN ESTABLISHING INTENT AND
WILLFULNESS IN TAX CASES ................................................... 252
A. Intent/Willfu!ncss in Criminal Law ............................................... 252
B. Philippine Jurispri1dence 011 Inten.t/Willfulness in Tax Cases ..... 253
1. Supreme Court Decisions ............................................................ 253
2. Court of Tax Appeals Decisions ................................................... 257
3. Regional Trial Court (RTC) Decisions ........................................ 259
C. Challenges in Proving Intent and Willfulness in Tax Cases ..... 260
D. Proof of Willfulness in U. S. Jurisprudence ........... 261
1. Proof of Willfulness - Failure to Fil~ Returns ............................. 261
2. Proof of Willfulness - Attempt to Evade or Defeat Tax .............. 261
V. TEMPLATES OF TRIAL BRIEFS ................................. 267
A. Sec. 254. Ati:empt to Evade or Defeat Tax .. ;.................................... 2.67
B. Sec. 255. Failure to File Return, Supply Correct and Accurate
Information, Pay Tax Withheld and Remit Tax and Refund Excess
Taxes Withheld on Compensation.................................................... 272
C. Sec. 257 (B)(8) - Knowingly Use Fake Certificate Authorizing
Registration: ..................................................................................... 276
D. Sec. 258. Unlawful Pursuit.of Business ............................................ 281
E. Sec. 267. Declaration Under Penalties of Perjury ............................. 285
F. Sec. 236(J). Securing More Than One TIN ...................................... 289

SAMPLE FORMATS ................................................................................ 293


NPS Sample Format No. C - Motion for the Issuance of a
Hold-Departure Order) ......................................................... 294
NPS Sample Format No. D-1 - Memorandum for the Secretary of
Justice through the Chief State/Regional State/Provincial/City
Prosecutor for the Cancellation of Passportffravel Document
of an Accused Who Jumped Bail and Has Fled the Country) ... 296
NPS Sample Format No. D-2 - Letter to the Secretary of Foreign
Affairs for the Cancellation of Passportffravel Document of
an Accused Who Jumped Bail and has Fled the Country) ..... 297

Revised Manual for Prosecutors

17

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

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
Act of 2002) .......................................................................................... 303
Appendix "C" - D.O. No. 318, s. 1991 - Defining the Authority, Duties
and Responsibilities ofRegionai State Prosecutors .......................... 304
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
the Inve_stigation/Prosecution of a Particular Case : 308
Appendix "E" - D.C. No. 50, s. 2000 (Specifying Aggr2.vating and
Qualifying Circumstances in all Informations or
Complaints Filed In Court) ............................................................... 309
Appendix "F" -D.C. No. 47, s. 2300 (Preparation ofa Trial Guide) ... 311
Appendix "G" - D.C. No. 26, s. 2008 (Jurisdiction to Conduct Preliminary
Investigation of Cas~s Against Public Officers/Employees) ............ 313
Appendix "H" - Guide for Media Practitioners on the Reporting
and Coverage of Cases Involving Children ...................................... 316
Appendix "I" - Participants of the Validation Sessions ........................ 324

18

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

FOREWORD
It was in 1996 that the first Manual for Prosecutors of the Department of Justice was
issued as a unified guide for prosecutors in 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, th~ 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 unifit::d and
simplified manner.
I thank all those who have labored .-.nd partnered with the Depanment 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 Manua!. A lot of hard
work, time and resources went into it to make sure that it is comprehensive enough to cover
the peculi<trities 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 ~ountry.

t;;L
Secretary of Justice

Revised Manual for Pros.ecutors

19

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN
Department ofJustice
Manila
05 October 2007

DEPARTMENT ORDER NO. 844


SUBJECT: DESIGNATION OF PERSONNEL
In the interest of the service and pursuant to the provisions of existing laws, the following
prosecutors are hereby constituted as members of the Technical Working Group {TWG) in connection with the preparation of the: 1) Systems and Procedures Mwmal for the National Prosecution
Service and 2) Prosecutor's Manual, to wit:

.,

Chairperson
Co-Chaiiperson
Member
Member
Member
Member
Member

SSP PURITA MERCADO-DEYNATA RSP ANTONIO B. ARELLANO


. RSP NONNATUS CAESAR R. ROJAS CP JACINTO G. ANG
CPLORNAT. LEE
SSP ROSALINA P. AQUINO
SSP MA. EMILIA L. VICTORIO

The Techr1ical Working Group, which saall be under the direct supervision of Chief State
Prosecutor Joven~ito R. Zufio and assisted by ACSP Miguel F, Gudiu, Jr. and A CSP Richard Anthony
D. Fadullon, shall be charged with the review and assessment of existing policies; formulation and
development of policy recommendations; oversee the progress of th~ ma..'luals' preparation; and
conduct the evaiuation 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'followllig:

l .

Corazon S. Navarrete
Eleanor P. Singson
Imelda A. Ballesteros'
Evangeline C. Cruz

Dept. Legislative Liaison Specialist


Dept. Legislative Liaison Specialist
Dept. Legislative Liaison Specialist
Stenographic Reporter N

Support services, particularly the Administrative Service and the Finance and Management
Service shall extend the necessary ass!stance to the Technical Working Group.
This Department Order shall take effect immediately and shall remain in force until further
orders.

(Sgd.) AGNES VST DEVANADERA


Acting Secretary
Copy furnished:
All concerned.

20

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

ACKNOWLEDGMENT
There are so many to thank for their involvement in this project.
Foremost, the distinguished institutions and individuals who, by their support and
cooperation, have made the revision of the Manual for Prosecutors c:nd the drafting of
the Handbook on Administrative Case Management possible: the USAID represented
by Mr. Gerardo Porta, Senior Civic Participation Specialist; USAID-ROLE represented
by Atty. George V Carmona, Chief of Party, ROLE and Atty. Redentor Buban; The Asia
Foundation represented by Dr. Steven Rood, Country Representative, Atty. Carolyn A.
Mercado, Sr. Program Officer, Atty. Damcelle Torres-Cortes, Program Officer and Ms.
Michelle H. Domingo, Assistant Program Officer; MCA-PTP represented by Mr. Benjamin
Allen, Chief of Party and Atty. Noel del Prado; and the ADB represented by Mr. fa.seem
Ahmed, Director, Governance, Finance & Trade Division, Ms. Debra Kertzman, Mr. Joven
Z. Balbosa, Mr. Thatha Hla and Atty. Christine Lao.
Individuals whose efforts as consultant-writers have contributed to the success
of this undertaking: Atty. Gregorio A. Arizala, consultant for the Revised Manual for
Prosecutors; Atty. Nilo C. Mariano and Mr. Ruben Canlas Jr., consultants for the Handbook
on Administrative Case Management; Atty. Eric Joseph Mallonga, consultant for the special section on Prosecuting Human Rights Violations and Providing AvaihclP. Remedies
Therefor; Atty. Victor Mamalateo and Atty. Giovanni Vallente, consultants for the special
section on Prosecuting Violations of the National Internal Revenue Code and Related
Laws.
The professional guidance, ideas, enlightenment, encouragement and support given
by Secretary Raul M. Gonzalez, Chief State Prosecutor Jovencito R. Zufio, Assistant Chief
State Prosecutor Severino H. Gana, Jr., Assistant Chief State Prosecutor Mjguel F. Gudio,
Jr., Assistant Chief State Prosecutor Pedrito L. Rances and Assistant Chief State Prosecutor
Richard Anthony D. Fadullon should be acknowledged.
The critical job of reviewing, rationalizing and updating the old Manual and presenting the matrices during the validation sessions and the round table discussion were
diligently and skillfully done by a technical working group (TWG): Chairperson SSP
Purita Mercado-Deynata, Co-Chairperson RSP Antonio B. Arellano, and members RSP
Nonnatus Caesar R. Rojas, CP Jacinto G. Ang, CP Loma T. Lee, SSP Rosalina P. Aquino
and SSP Ma. Emilia Lucena-Victorio (please refer to D.O. No. 844, s. 2007 on the previous
page, andAppendix "/" onp. 322 of this Manual).
This Manual was initially made possible through the Organizational Development
Program for the National Prosecution Service (NPS) and its component project, the
Procedural Development Project administered by the Management Services Office headed
by Director Ma. Monica P. Pagunsan, assisted by its Planning Staff, Mr. Ryan C. Thomas,
Ms. Janet A. Covarrubias and Ms. Marjorie Tan-delos Santos. These people provided

Revised Manual for Prosecutors

21

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

valuable policy research, process analysis, documentation, technical writing and project
management.
Secretariat and other administrative work were effectively and efficiently carried
out by_ Ms. Eleanor P. Singson, Ms. Corazon S. Navarrete, Ms. Imelda A. Ballesteros and
Ms. Ev~geline C. Cruz. They are the staff of Assistant Secretary Teresita R. Domingo
whomostwillingly committed them for this endeavor.
NPS prosecutors, prosecution attorneys, administrative officers and representatives
of the vanous 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 dring the consultations and validation sessions. Special mention is however given
to Undersecretary Mary Ann Lucille L. Sering and Atty. Alton C. Durban of the Department
ofEnvironm.entand Natural Resources (DENR), who provided for specifics in the prosecution of envfroni:nental cases.
_ ~e Financial and Management Service and Administrative Service h~ve also beeu
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 suggestio~s during the round table di:::;cussion.

..

22

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

PART I. PROSECUTION OF OFFENSES

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. ~yea, 477 SCRA 409 [2005)).
2. The trial prosecutor may, at any time, in the exercise of his discretion, take over
from the private prosecu~or the actual conduct of the trial.
3. A prosecutor, by the very nature of ti.is 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, 461SCRA599 [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. HPshould 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.

II.

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. l 3,f2J, 1987 Constitution of the Philippines). An
arraignment is necessary in order to fix the idt:ntity 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

Revised Manual for Prosecutors

23

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

of corporate surety, property bond, cash deposit or recognizance (Sec. I, Rule


114, Revised Rules on Criminal Procedure).
4.

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, 21SCRA312).

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.

Continued/Continuous/Continuing Crime - is a single crime, consisting of a


series of acts but all arising from one criminal resolution (The Revised Penal
Code - Criminal Lav.~ Book One, 15th Ed, Luis B. Reyes, p. 676).

7.

Criminal action - A criminaJ action is one by which the State prosecutes a person
for an act or omission punishable by law (Sec. 3(b), Rule I, 1997 Rules of Civil
Procedure).

8.

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


subscriberl by the prosecutor and filed with the court (Sec. 4, Rule 110, supra.).

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
in court.

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 liab!e (Garcia v. CA, 266 SCRA 678 [1997]); the person
actuall~, injured and whose feeling is offended.
11. Personal Knowledge of Facts (in arrests without warrant) - must be based
upon probable cause which means an actual belief or reasonable grounds of
susp1c1on.
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 themselv.es to create the probable cause
of guilt of the person to be arrested. A reasoi:i.able suspicion therefore must be

24

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

founded on probable cause, "coupled with good faith on the part of the peace
o.fjicers 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 s Concise Law Dictionary, 15'h 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 1 ~tum
for a lighter sentence than that for the graver charge (Black's Law Dictionary, 5'h
Ed., p. 1037).
14. Preliminary Investigation - is an inquiry or proceeding to determine wh~ther
there is 3ufficient 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 ordjnary caution and prude.nee to believe, or entertain an honest or strong sc~pi(;ion,
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 cor..dition 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 (Biack's Law Dictionary, p. 1316).
19. Summary Investigation - refers to the investigation conducted by the prosecutor
to determine the existence or non-existence of probable cause in cases that do not
require preliminary investigation (Sec. 8, Rule 112, as amended, Revised Rules
on Criminal Procedure), namely those involving offenses in which the prescribed

Revised Manual for Prosecutors

25

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

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 of the 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,000.00).
21. Trial-:- is :i 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 (US v. Raymundo, 14 Phil.
416 [1909]).

!II. GENERAL RULES


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

A written complaint filed with the Office of J:he Prosecutor may come in
different forms, to wit:
a. a referral letter from the law enforcem~1~t agency;
b. an affidavit of the offended party or any othef person authorized by law
to file a criminal complaint;
c" a letter (sworn or not) from the offended party, or other persons authorized by law to file the complaint;
a committee of the Senate or House of
d. a referral letter----'from
,,-'
Representatives or any other government agency or institutipn; and

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


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

a. As a general rule, a complaint filed with the prosecutor must be sworn


to by the complainant, to discourage harassment charges. In which case,
the prosecutor shall warn the complainant that any false statement in the
complaint may give rise to a finding of a. prima facie case for perjury
before the same office.

.... .

26

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

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


government institutions need not be sworn to by the complainants.
c. Amere letter suffices to start an investigation, except if the offense charged
is one which cannot be prosecuted de oficio, or is private in nature, i.e.,
where the law requires that it be started by a complaint sworn to by the
offended party (People v, Sangi/, 4 SCRA 722). However, upon the start
of the investigation, the investigating officer should administer the oath to
the complainant.

This liberal policy is premised upon the fact that the complainant is
unschooled in law, (Grenen v. Consolacion, 4 SCRA 722 [1962)) and
it is the inherent power of the prosecutor to even initiate motu pmprio
a criminal investigation without waiting for a formal complaint to be
filed by the police agency o~ the aggrieved party. (Sec. 3, Rule 110,
supra.).

3. Persons Authorizerl to File Complaints

The following persons are authorized to file c: complai:it:


a. the ::>ffended party;

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).

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


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

A "complaint" filed with the prosecutor prior to judicial action may be


filed by any person (Salazar v. People, G.R. No. 149472, October 15,
2002)

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


Monetary Board, 20 SCRA 592).

Revised Manual for Prosecutors

27

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

In offenses which cannot be prosecuted de oficio, only the following persons may file the complaint:
1. In crimes of adultery and concubinage, only the offended spouse
has the right to file the complaint (Sec. 5, par. 2, Rule 110, supra);

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


offended party, even if a minor, may file the complaint independently of her parents, grandparents or guardian (Sec. 5, par. 3,
Rule 110, supra);

3. In case the offended party is incompetent or incapacitated, only the


following persons have the right to file the complaint, exclusive of
all other persons, aud may only exercise such right successively in
the following order of priority: parents, grandparents, and guardians. (Sec. 5, par. 4, Rule 110, supra);
4. If the offended party dies or is incapacitated before she could file
the complaint, bat has no known parents, grandparents or guardian, the State shall initiate the crimina! action in her behalf (Sec. 5,
par. 3,Rule 110, supra);

5. In cases of violations oftb.e Child Abuse Law, any one of the following may file the complaint (Sec. 27, R. A. No. 7610, as amended
by R. A. No. 9231 [Child Labor Law]):

the offended party;


the parents or guardian; '
ascendant or collateral relative within the third civil degree of
consanguinirf;
officer, social worker or representative of a licensed child-care
institution;
officer or social worker of the Department of Social Welfare
and Development;
Barangay Chairman of the place where the offense was committed; or of the place where the offended party actually resides, or where he/she works;
At least three (3) responsible citizens where the violation occurred.

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


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

28

Revised Manual for Prosecutors

_I.,

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

e. In cases of violation of RA 9208 (Anti-Trafficking in Persons Act), any


one of the following may file the complaint:
l.
2.
3.
4.
5.
6.
7.

trafficked person;
parents;
spouse;
siblings,
children,
legal guardian;
any person who has personal knowledge .cf the commission of the
offense.

4. Law Enforcement Officers/Publk Officers Authorized to File Criminal


C11mplaints
Except in offenses which cannot be prosecuted de o.ficio, 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 of RA 9165 (Comprehensive Dangerous Drugs Act of 2002);
d. officials of the Bureau of Internal Revenue (BIR:)-for violations of the
National Internal Revenue Code (NIRC);
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 of RA 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
of 1995);
1.

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

Revised Manual for Prosecutors

29.

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

J.

Other agencies specially tasked with the enforcement of certain special


laws.

5. Institution of Criminal Action; How and Where Commenced

a. For offenses that require preliminary investigation pursuant to


Rule 112 of the RevisecrR.Ules on Criminal Procedure-

Sec. l,

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


the complaint with the proper officer for the purpose of conducting the
requisite preliminary investigation (Sec. 1 (a), Rule 11 (!,supra.).

Criniinal 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 Q372).

b. For offenses that do not require preliminary i)lvestigationA criminal action may be commenced:
1. by filing the Complaint or Information directly with the Metropolitan
Trial Courts, Municipa! Trial Coarts and Municipal Circuit Trial
Courts; or,
2. by filing the complaint with the Otfice of the Prosecutor.
6. Place Where Criminal Action is to be Instituted

A criminal action should be instituted and tried in the province, city or


municipality where the offense was committed or any of its essential elements
took place.

The purpose of the aforementioned principle being that} a defendant


should not be compelled to move to, and appear in a different coun
from that of the province where the crime was committed, as it would
cause :him great inconvenience in looking for his witnesses and
other evidence in another place (Beltran v. Ramos, et al., 96 Phil. 149
[1954]).

a. Where the offense is committed on a railroad train, in an aircraft, or in any


other public or private vehicle while in the course of its trip The criminal action shall be instituted in the comt of any municipality
or territory where such train, aircraft or--other vehicle passed during such

30

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

trip, including the place of departure and arrival (Sec. 15 (b), Rule 11 O,
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
international law (Sec. J5(c) Rule 110, supra).

The place where the a~tion is to be instituted is subject to existing


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

c. Where the crimes are committed 01utside the Philippines but puni3hable
under Article 2 of the Revised Penal Code The commission of such 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 criminal 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.).

A case dismissed before arraignment may be refiled. (Marcelo v. Court


ofAppeals, 227 SCRA 827).

b. In Municipal Trial Courts or Municipal Circuit Trial Courts, when the


prosecutor assigned thereto or to the case is not available the following
may prosecute tile case (Sec. 5, par. I, Rule 110, supra.):
l
1. the offended party;
2. any peace officer; or
3. public officer charged with the enforcement of the law violated.
This authority shall cease upon actual intervention of the prosecutor
or upon elevation of the case to the Regional Trial Court.

Revised Manual for Prosecutors

31

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

B. INFORMATION
1. The Information Need Not Be under Oath; Matter Which a Prosecutor

Must Certify Under Oath in the Information


The Information need not be placed under oath by the prosecutor signing
the same. He must, however, certify under oath that:
a. he has examined the complainant and his witnesses;
b. there is reasonable ground to believe that a ~rime has been committed and
that the accused is probably guilty thereof;
c. the accused was informed of the complaint and of the evidence submitted
against him; an<:l
d. the accused was given an opportunity to submit controverting evidence
(Sec. 4, Rule 112, supra.).

2. Contents of the Caption of an Information


The caption of an Information shall, in acfdition to the name of the plaintiff~ indicate the following:
a. the complete names, i.e., given name, alias/es, maternal name, surname,
and addresses, of all \:he accused. In the case of accused minors, their age
shall be indicated in the caption;
b. the case number; and
c. the offense charged. (The denorr.lnation of the offense and the specific
law and provision violated shall be specified.)

}C. RULES COMMON TO BOTH A COMPLAINT AND AN INFORMATION


1. Sufficiency of a Complaint or an Information
A Complaint or Information is sufficient if it states the following:

a. the name of the accused


The Complaint or Information must state the name and surname of the
accused or any appellation or nickname by yvrhich he has been or is known. If
his name cannot be ascertained, he must be described under a fictitious name
with a statement that his true name is unknown. (Sec. 7, pm: 1, Rule 1J0,
supra.).
32

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

If the true name of the accused is thereafter disclosed by him or appears

in some other manner to the court, such true name shall be inserted in the
Complaint or Information and record (Sec. 7, par. 2, Rule I I 0, supra.).

Where the accused has been sued as "John Doe" in an Information


filed in due form, and after due investigation by the prosecutor, his
identity became known, his true name may be inserted without further
need of preliminary investigation when~ one had already been properly conducted and the nature of the crime is not changed (San Diego
v. Hernandez, 24 SCRA 110 {1968]).

In crimes against property, the designation of the name of the offended


party is not absolutely indisp~nsable for as long as the criminal act
charged in the Complaint or Information can be properly identified
(Sayson v. People, 166 SCRA 693).

b. the designation of the offense committed


To properly inform the accused of the nature and cause of the accusation against him, the Complaint or Information shall state, whenever
possible 1. the designation given to the offense by the statute;

2. the statement of the act or omission constituting the same, and if


there is no such designation, reference shall be made to the section or
subsection of the law punishing it (Sec. 8, Rule I I 0. supra) (People v.
Gutierrez, 403 SCRA I 78).

The Information or Complaint must avoid using conclusions of


law, but must allege ultimate facts - that is, specific averment of
every fact or element that constitutes the crime. Otherwise, the
information is void for being violative of the constitutional right
of the accused to know the nature of the offcnse charged against
him.

Examples of Conclusions of law

The terms "sexual abuse'', "rape" or "acts oflasciv1ousness" 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]).

Revised Manual for Prosecutors

33

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

The allegation that the accused "sexually abused" the complainant is


not sufficient to support a conviction for rape. The term "sexual abuse"
cannot be equated with the allegation of carnal knowledge or sexual
intercourse with the offended party (People v. Flores, G. R. No. 12882324, December 27, 2002).

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


child abuse under RA 7610 because under Sec. 2 (g) of the Rules and
Regulations of the Reporting and Investigation of Child Abuse cases,
issued pursuantto Sec. 32 of RA 7610, "sexual abuse" is defined thereinby inclusion as follows:
"Sexual abuse includes:
1. employment, use, persuasion, enticement, or coercion of a child to
engage in, or assist another person to engage in sexual inteicourse
or lascivious conduct, or
2. the molestation, or
3. prostitution, or
4. incest with children."
From the foregoing broad, non-~xclusive definiti0n, the phrase
"sexually abused" does not comply with the requirement that the
complaint must contain a specific averment of every fact necessary to
constitute the crime.

Example ofAverments of Ulamate Facts


The body ~f the information states that the accused "embraced" the
complainant, "held her breasts and kissed her lips". Such allegations constitute specific averment of ultimate facts constituting the offenlse of child
abuse under Sec. 5 ofRA 7610. This, despite the fact that the caption and the
preamble of the Information d~signated the offense charged as "Violation
of RA 7610". The omission to cite the specific section or subsection. of RA
7610 violated is not sufficient to invalidate the Information since there is
no doubt that the allegation of the ultimate facts of"embracing" the victim,
"holding her breast" and "kissing her. lips" clearly ref~r to the "ultimate
facts" of the generic term "acts oflasciviousness" which is penalized under
Sec. 5 of RA 7610. Hence, the Information was valid (Olivarez v. CA G. R.
No. 163866, July 29, 2005).

34

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I

I
I
I
I
I
I
I
I

In order for the court to impose the penalties under R. A. No. 9346 in
rape cases, the following attendant circumstances must be stated in the
Information:
1. When the victim is under eighteen ( 18) years of age and the offender
is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law
spouse of the parent of the victim;
2. When the victim is under the custody of the police or military authorities;
3. When the rape is committed in full view of the husband, parent, any
of the children or other relatives within the third degree of conscnguinity;
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 Im..'llune
Deficiency S)'ndrome (AIDS) disease;
6. When the rape is committed by any member of the Armed Forces of
the Fhilippines or the Philippine Nationa~ 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 noti 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 110, 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

Revised Manual for Prosecutors

35

I
I
I
I
I
I
I
I
I
I
I
I
I
I
1
I
I
I
I

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


JO, Rule 110, supra.).
A general allegation in the Complaint that the felony was committed
within the jurisdiction of the court is sufficient. The remedy is a motion
for a bill of particulars under Rule 116, Sec. 6 (People v. Pinuela, 91 Phil.
53).
There are however, certain crimes where place is essential:
1. violation of domicile (Art. 128, RPC);
2. penalty on keeper, watchman and visitor of an opium den (Art.
199, 'RPC);
3. trespass to dwelling (Art. 280, RPC);
4. violation of the eleetion law, e.g., 30..meter radius carrying of a
deadly weapon prohibited (Election Code)

e. date of the cqmmission of the offense


The complaini: mmt allege the specific time and pbce wbeP and where
the offense was committed, but when the time so alleged is not of the
essence of the offense, it need not be proved as alleged, and the complaint
will be sufficient if the evidence shows that the offense was committed
at anytime within the period of the statute of limitation and before the
commencement of the action (US v. Smith, 3 Phil 20 [1903]).
f.

name of the offended party


The Complaint or Information must state the name and surname of the
person against whom or against whose property the offense was committed, or any appellation or nickname by which such person has been or is
known. If there is no better way of identifying him, he must be described
under a fictitious name (Sec. 12, Rule 110, supra.).

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


The following matters shall also be alleged in the Complaint or
Information:
a. every essential element of the offense;
b. the criminal intent of the accused and
complained of;
36

Its relation to the act or omission


Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

c. all qualifying and generic aggravating circumstances which are integral


parts of the offense;
d. all matters that are essential to the constitution of the offense, such as the
ownership and/or value of the property robbed or destroyed; the particular knowledge to establish culpable intent; or the particular intention that
characterizes the offense;
e. age of the minor .;:ir.cused, and whenever applicable, the fact that he/she
acted with discernment; ar.d,
f.

age of the minor complainant.

3. Number of Offenses Charged


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

The charge is not defective for duplicity when one single crime is set forth
in the different modes prescribed by law for its commission, or the felony
is set forth under different counts specifying the way of its perpetuation,
or the acts resulted from a single criminal impulse. Neither is then.: duplicity when the other offense described is but an ingredient or an essential
element of the real offense charged nor when several acts are related in
describing the offense (People v. Montilla, 285 SCRA 703).

EXCEPTION: The rule on duplicity of offenses does not apply


where the law prescribes a single penalty for various offenses such
as a complex crime under Article 48 of the Revised Penal Code or
special complex crime such as robbery with homicide or with rape or
rape with homicide.
4. Title of the Complaint or Information
The title of the Complaint or Information shall be in the name of the
"People of the Philippines" as plaintiff against all persons who appear to be
responsible for the offense involved.

Revised Manual for Prosecutors

37

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

5. Qualifying and Generic Aggravating Circumstances; To be Alleged and


Proved

a.

The prosecutor must always consider aftd allege the applicable qualifying and/or generic aggravating circumstances in any Complaint or
Information that he prepares.

b.

Any qualifying or generic aggravating circumstance not alleged in th.e


Complaint or Information may not be considered by the court even if
proved during trial, except as a ground for the grant of exc~1plary damages in the civil aspect of the criminal action where applicable, pursuant
to Article 2230 of the New Civil Code.

6. List of Prosecution" Witnesses

The Information shall contain the complete names and addresses of aH


identified witnesses for the prosecution. In cases for violation of B.P. Blg.
22 and estafa cases, the list of witnesses shall include the complainant, the
bank representative with specific reference tc the check and account numbers
involved and, in proper cases, the company auditor.
In physical injuries cases, ihe lefom:ation shall indicate the name of the

attending physician with specific


the incident.

referenc~

to the medical report and date of

7. Amendment of the Complaint or Information

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


a. before the accused pleads

This may l)e-done without leave of court; however, any amendment before ple~ which downgrades the nature of the offense charged or
excludes any accused from the Complaint or Information, can be hiade
only upon motion by the prosecutor, with notice to the offended party and
with leave of court (Sec. !4, par. 2, Rule 110, supra.).
b. after the accused has pleaded

The amendment may be made only with leave of court and only as to
matters of form wherein the same can be done without prejudice to the
rights of the accused (Sec. 14, par. 1, Rule 110, supra.).

38

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

I
I
I
I

c. during the trial


An amendment may also be made but only with leave of court and
also only as to matters of form wherein the same can be done without
prejudice to the rights of the accused (Sec.14, par. 1, Rule 110, supra.).

8. Amendment by Substitution
At any time before judgment, if there has been a mistake in charging the
proper offense, the court shall dismiss the original Complaint or Information
upon the filing of a new one charging the proper offense in accordance with
Rule 119, Sec. 11, provided the accused would not be placed thereby in double
jeopardy. The court may also require the witnesses to give bail for their appearance at the trial (Sec.14, par. 3, Rule 110, supra.).

a. Requisites for the substitution of a c.'.~fective information witb the correct one:
1. it involves a substantial d1ange from the original charge;
2. the substitution of Information must be with leave of court as the
original Information has to be dismissed;
~-

another preliminary investigation must be conducted and the accused


has to plead anew to the new Information; and,

4. substitution presupposes that the new Information involves a different


offense which does not include or is not necessarily includ!!d in the
original charge.
NOTE: Where the second Information involves the same offense, or
an offense which necessarily includes or is necessarily included in
the first Information, an amendment of the Information is sufficient;
otherwise, where the new Infprmation charges an offense which is
distinct and different from that initially charged, a substitution is .in
order (Galvez v. <;ourt ofAppeals, 237 SCRA 695).
NOTE: When it becomes manifest at anytime before judgment that
a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense
necessarily included therein, the accused shall not be discharged if
there appears good cause to detain him. In such case, the court shall
commit the accused to answer for the proper offense and dismiss the
original case upon the filing of the proper Information (Sec. 19, Rule
1I9, Revised Rules on Criminal Procedure).

Revised Manual for Prosecutors

39

I
I

9. Prescriptive Period; How Computed and Interrupted


a. For an offense penalized under the Revised Penal Code -

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

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


the crime was discovered by the offended party, the authorities, or their
agents, and shall be interrupted:
1. by the filing of the complaint with the Office of the Provincial/City
Prosecutor (Sec. 1 (b), par. 2, Rule 110, supra.); or with the Office of
the Ombudsman (Llenes v. Dicdican, 260 SCRA .'207 [1996}' or
2. by the filing of the Complaint/Information with the court even if the
court cannot try the case on its ments because of lack of jurisdiction
(People v. Enrile, 160 SCRA 700).
3. For an offense covered by the Revised Rules on Summary Procedure
(which is not a violation of a municipal ordinance or special law such
as recldess imprudence resulting in slight physical injuries), the period
of prescription is interrupted only by the fi]ing of the Complaint or
Information in the prosecutor'~ office (People.v. Cuaresma, 172 SCRA
415 [1989 ).
4. The prescription of an offense filed before the Prosecutor or
Ombudsman shall commence to run again when proceedings terminate; while the prescript~on of an offense filed in cou!"t starts to
run again when the proceedings terminate without the accused being
convicted or acquitted or are unjustifiably stopped for any reason not
imputable to the accused (Art. 91, Revised Penal Code).

b. For violation of a special law or ordinance The period of prescription shall commence to run from the day of the
} commission of the violation, and if the same is not known at the time,
from the discovery and the institution of judicial proceedings for its investigation and punishment. The prescription shall be interrupted only by
the filing of the Complaint or Information in court and shall begin to run
again if the proceedings are dismissed for reasons not constituting double
jeopardy (Sec. 2, Act. No. 3326, as amended).
Prescription shall not run when the offender is absent from the country (Art. 91, par. 2, Revised Penal Code).

..

40

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

In cases where the imposable penalty is imprisonment and/or a


fine, the greater penalty shall be the basis for the computation of
prescription.

c. For cases falling within the jurisdiction of the Katarungan


Pambarangay The period of prescription is likewise interrupted by the filing of the
complaint with the punong barangay, but shall not resume to run again
upon receipt by the complainant of the certificate of repudiation or of
the certification to file action issued by the lupon or pangkat secretary;
Provided, however, That such interruption shall not exceed sixty (60)
days from th(; filing of the complaint with the punong barangay.
Prescription shall not run when the offender is absent from the country.

IV.

RELEVANT JURISPRUDENCE
1. A petition for a change of venue of the preliminary investigation should be
addressed to the Secretary of Justice who has control and supervision over the
conduct of a preliminary investigation .which is a function of the Executive
Department and not the Judiciar:, (Larranaga v. CA., 287 SCRA 581).
2. Where the crime for violation of PD 532 (Anti-Piracy and Anti-Highway Robbery
Law cf 1974) was committed aboard a jeepney, the criminal action may be instituted in the court of any municipality or territory where the vehicle passed during
the trip including the place of departure and arrival (People v. Panliiio. 2 5 5 SCRA
503).
3. Where the transport of cigarettes commenced out of Clark Airbase and continued
when the goods pushed through Valenzuela, Bulacan until they were seized in
Quezon City, the courts in any of these places had jurisdiction over the offenses
(Co Kiat v. CA., 187 SCRA 5 [1990}).
4. The f:iupreme Court ruled in the case ofPeople v. Esperanza, G.R. Nos. 139217-24,
June 27, 2003, the allegation that "Irma is Nelson's niece" is not specific enough
to satisfy the special qualifying circumstances of relationship. If the offender is
merely a relation - not a parent, ascendant, step-parent, guardian or common-law
spouse of the mother of the victim - the specific relationship must be alleged in
the Information, i.e., that he is a "relative by consanguinity or affinity [as the case
may be] within the third civil degree."
5. In the preparation of the Information in case of qualified rape, the attenciant
circumstances provided for under Sec. 11 of RA 7659 must be stated with par-

Revised Manual for Prosecutors

41

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

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.).
6. The exact age of the victim at the time of the commission of the offense must be
stated in the Information. (People v. Ari/las, 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 fa(;t that the accused is the father of the complainant, said
Informations properiy pleaded the special circumstance of relationship of father
and daughter that would enable a "person of sufficient understanding" to knDw
what offense is intended to be charged (People v. Alarcon, 310 SCRA 729).
8. An aggravating circumstance, whether ordinary or qualifying, should entitle tb.~
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 pr0secutors that they must prepare well-crafted
Infom1ations that allege the circumstances qualifying and aggravating the crimes
charged; otherwise, the same will not be considereu 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
[20002] as reiterated in People v. Paulino, 386 SCRA 391 [2002] and People v.
Garin, 432 SCRA 394 [2004]).
11. When conspiracy is charged as a mode in the commission ot 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. orb) 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 therefor~ 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

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

alleged in the body of the Information and its commission is established by the
evidence (Buhat v. CA .. 265 SCRA 701 [1996}).
13. An Information for bigamy must state the time and place of the 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 thai: characterizes
the charge is the actual recital of facts. The real nature cf the criminal charge is
determined not from the captiou or preamble of the Information nor from the
specification of the provision oflaw alleged to have been violated they being conclus1ons of law but by the actual recital of facts in the Cornpiaint or Information
(Lacson v..Executive Secretary, 301SCRA298 [1999]; People vs. Gl'tierrez, 403
SCRA 178).

Revised Manual for Prosecutors

43

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

PART II. INQUEST


I.

GENERAL RULES
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 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 in court.
B. COVERAGE

The conduct of inquest proceedings covers the following: .


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

2. Where the respondent is a minor (below eighteen [18] years old), the inquest
investigation shall cover only offenses punisl}able by imprisonment of not
less than six (6) years and one ( 1) day, provided that no inquest investigation
shall be conducted unless the child-respondent shall have first undergone the
requisite proceedings before the Local Social Welfare Development Officer
pursuant to the Rules on Inquest With Respect to Children in Conflict With
the Law (CICL) (please refer to' Department Circular No. 39, s. 2007 on
the "Rules on Inquest itlth Re:-.pect to Children in Conflict with the Law as
Defined Under Republic Act No. 9344, Otherwise Known as the "Juvenile
Justice and Welfare Act of 2006" found in Appendix "A" on p. 300 of this
Manual).
C.. DESIGNATION OF aN INQUEST PROSECUTOR
,"/

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


the prosecutors assigned to inquest duties and shall furnish the Philippine National
Police (PNP) a list of their names and their schedule. of assignments. If, however,
there is only one prosecutor in the area, all inquest cases shall be referred to him for
appropriate action.

D. VENUE OF INQUEST CASES


Unless otherwise directed by the Chief State Prosecutor or the Provincial/
City Prosecutor, those assigned to inquest duties shall_di,scharge their functions
during the hours of their designated assig~~ents and only at the police sta-

44

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

tions headquarters of the PNP or at the office of the inquest prosecutor in


order to expedite and facilitate the disposition of inquest cases.

E. DATE AND TIME OF THE CONDUCT OF INQUEST PROCEEDINGS


Inquest proceedings may be conducted at any time of the week. However,
where, an inquest falls on a non-working day, Saturday, Sunday and holiday, and a
prosecutor is not available, the inquest proceedings shall be conducted on the first
office day following the arrest (Medina vs. Orozco, Jr., 18 SCRA 1168).

II.

PROCEDURE
, ..

A. COMMENCEMENT OF THE INQUEST PROCEEDINGS


1. When Commenced
The inquest proceedings shall be considered commenced upon receipt by the
inquest prosecutor of the following documents:
a. the affidavit of arrest du!y subscribed and sworn to before him by the arresting officer;
b. the investigation report;
c. the sworn statements of the comp lair.antis and witness/es; and
d. other supporting pieces of evidence gathered by the police in the courst- of
the latter's investigation of the criminal incident involving the arrested or
detained person

NOTE: The sworn complair..t shall be accompanied by an accomplished


Preliminary Investigation Data Form (please refer to NPS Investigation Form
No. 01, s. 2008 on p. 60 of this Manual.) and other supporting documents.
2. Documents Required in Specific Cases
The inquest prosecutor shall, as far as practicable, require the submission/
presentation of the documents listed below to wit:
a. Murder, Homicide and Parricide

certified true/machine copy of the certificate of death of th~ victim;

Revised Manual for Prosecutors

45

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

autopsy report and the certificate of post-mortem examination, if readily


available; and
marriage certificate in parricide cases.

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

-~x:.

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.

c. Violation of the Dangertius Drugs Law/Comprehensive Dangerous Drugs Act


of2002 (RA 9165)

chemistry report or certificate of laboratory examination duly signed by


the forensic chemist or other duly authorized officer, or if unavailable,
the field test results on the seized drug, as attested to by a PNP Narcotics
Command operative or other competent person, in which case, the inquest
prosecutor shall direct the arresting officer to immediately forward the
seized drug to the crime laboratory for expert testing and to submit the
final forensic chemistry report to the pr~secutor's office within five (5)
days from the date of the inquest;
machine copy or photograph of the buy-bust money, if available; and
affidavit of the poseur-buyer, if any.

d. Theft and Robbery, Violation of the Anti-Piracy and Anti-Highway Robbery


Law (PD 532) and Violation of the Anti-Fencing Law (PD 1612)

a list/inventory of the articles and items


statement of their respective values.

subject of the offense; and

e. Rape, Seduction and Forcible Abduction with Rape

f.

Violation of the Anti-Carnapping Law (RA 6539)

46

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

machine copy of the certificate of motor vehicle registration;


machine copy of the current official receipt of payment of the registration
..
fees of the subject motor vehicle;
photograph of the vehicle, if readily ~vailable;

. Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

certification from the Traffic Management Group I Land Transportation


Office; and
other evidence of ownership.

g. Violation of the Anti-Cattle Rustling Law (PD 533)

machine copy of the cattle certificate of registration; and


photograph of the cattle, if readily available.

h. Violation of Illegal Gambling Law (PD 1602)

i.

Illegal Possession of Firearms, Ammunitions and Explosives (P.D. 1866 as


amended by RA 8294)
'

J.

gambling paraphernalia;
photograph of the gambling paraphernalia, if any; and
cash money, if any.

chemistry report duly signed by the forensic chemist; and


photograph of the explosives, if readily available.
ballistics report, if readily available.

Violation of tl:e Fisheries Law (PD 704)

photograph of the ~olliiscated fish, if readily available;


photograph of fishing paraphernalia, if any; and
certification of the Bureau 0f Fisheries and Aquatic Resources.

k. Violation of RA 9262 (VAWC)

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

In case where the victim/offender is a n\inor, the inquest prosecutor shall


require the submission of the following:

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.

Revised Manual for Prosecutors

47

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

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 JNQ Form No. OJ, 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 JNQ
Form No. 02, s. 2008 on p. 64 of this Manual).
4. Instances Where the Presence of the Detained Person is DispPnsctl With
The presence of the detained person who is under custody shall be ensured
during the proceedings. His presence may, however, be dispensed with in the

following cases:

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

The absence of fo~ 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 cont!adictory or inconsistent dispositions.
6. Determination of the Arrest by the Inquest Prosecutor
The inquest prosecutor shall first determine if the arrest of the detained person
was ~ade in accorrumce 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 maybe effected: (Go vs. Court ofAppeals, 206 SCRA 138 {1992); Umil, et.
al. vs. Ramos, 202 SCRA 251 {1991) and companion cases People vs. Malmstedt,
198 SCRA 401 and People vs. Aminnudin, 163 SCRA 402 [1998)).

,_'

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 committ~d, and the arresting officer has
probable cause to believe, based on persoual kno~l~dge of facts or circumstances, that the person to be arrested h~ _committed it; and

48

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

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 miiy summarily examine the arresting officers on the circumstances surrounding the arrest or apprehension of the
detained person.
Meaning ofProbable Cause in Inquest Cases
Probable cause means ;m actual belief or reasonable grour.ds of suspicion
(People vs. Tudtud, GR Ne. 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.

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


Should the inquest prosecutor find that the.arrest was not made in accordance
with the aforesaid provisions of the Revised Rules on Criminal Procedure, he
shall:

&

recommend the release of the person auested or detained;


prepare a resolution indicating the reasons for the action taken; and
forward the same, together with the record of the c2se, to the Chief State
or Provincial/City Prosecutor for appropriate action.

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 evi-
dence 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
of this 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 statement~ of the complainant and his
witnesses and other supporting evidence (please refer to NPS INQ Form
No. 03, s. 2008 on p. 66 of this Manual).

Revised Manual for Prosecutors

49

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

8. Where the Arrest of the Detained Person was Properly Effected


Should the inquest prosecutor find that the arrest was properly effected, the
detained person shall be asked if he desires to avail himself of a preliminary
investigation and, if he does, the consequences thereof must be explained to him
. adequately.
The detained person, with the assistance of a lawyer of his own choice, shall
then be made to execute a waiver of the provisions of Article 125 of the Revised
Fenal Code, as amended. (please refer to NFS INQ Form No. 04, s. 2008 on p.
67 of this Manual).
The preliminary investigation may be conducted by the inquest prosecutor
himself or by any other prosecutor to whom the case may be assigned by the
Chief State Prosecutor or the Provincial/City Prosecutor, which investigation
shall be terminated within fifteen (15) days from its inception.

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 procceGing, notwithstanding the absence
of a counsel, by examining the sworn statement.s/aftidavits of the complainant
and the witnesses and other supporting evidence submittt!d.
If necessary, the inquest prosecutor shall require the presence ~f the complaining witnesses and subject thern t::> an informal and summary investigation or
exann-.tion for purposes of determining the existence of probable cause.
If the inquest prosecutot f-.ds that probable cause exists, he shall forthwith
prepare the resolution with 1M <:orreSpQnding Complaint/Informatio:.1 with the
~ec~mmendation that th~_~ame be filed in court. The Complaint/Information shall
m~1cate the o:ffense/s-C~ommitted and the amount of bail recommended, if applicable. However, in inquest cases for crimes coveried by the Rules on s,,.n:unary }
Procedure and RA 6036 where !1'1 bail is required, the inque.;t prosecutor si1..:.!1
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
Complaint/Information, shall be forwarded to the Chief State Prosecutor or the
Provincial/City Prose~ rur approval and subsequent filing before the proper
court.

50

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

1. Contents of the Information

. The Complaint/Information shall, among others, contain:


a. a certification by the filing prosecutor that he is filing the same in accordance with the provisions of Sec. 6, Rule 112, Revised Rules on Criminal
Procedure in cases cognizable by the Regional Trial Court (please refer to
NPS INQ Form No. 05, s. 2008 on p. 68 of this Manual);
b. the full name and aliases, if any, of the _accused;
c. unidentified accused person/s designated as "John/Jane Does", if he/she is
in conspiracy with the identified accused;
d. the address of the accused;
e. the place where the accused is actually detained;
f.

the full names and addresses of the ~omplainant and witnesses;

g. description of the items subject matter of the complaint, if there are any;
h. the ful! 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;
k. attendance of aggravating and/or qualifying circumstances, if any.
2. Action to be Taken When There is an AbsJnce of Probable Cause
If the inquest prosecutor finds no probable cause to indict the arrested/
detained person, he shall:

a. recommend the release of the arrested or detained person; (please refer to NPS INQ Form No. 02, s. 2008 on release found on p. 64 of this
Manual);
b. prepare a resolution of dismissal indicating therein the reasons for the
action taken; and

Revised Manual for Prosecutors

51

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

c. forthwith forward the record of the case to the Chief State Prosecutor or
the Provincial/City Prosecutor for appropriate action.
When the 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 of Dismissed Cases Involving RA 9165 [Comprehensive
Dangerous Drugs Act of 2002] "found in Appendix "B" on p. 303 of this
ManuaV
Meanwhile, the arrested or detained person shall be released.
3. Action to be Taken When the Arrested Person Executes a Waiver of Article
125 of the Revised Penal Code
Should the arrested person execute a waiver, the inquest prosecutor shall
set the case for preliminary investigation which shall be terminated within
fifteen ( 15) days from the execution of the waiver.
4. Posting of Bail by the Arrested/Detained Person
a. If offensP, is bailable
A person lawfully arrested/detained under Sec. 6, Rule 112 of the
Revised Rules on Crimir..al Procedure may post bail before the filing
of the Information without being deemed to ~ve waived his right to a
preliminary investigation. For this purpose, the inquest prosecutor shall
simply prepare a certification that the person arrested is being charged for
an offense in an inquest proceeding and specifying the recommended bail
therefor. Applying for and posting bail does not result in the waiver of
the invalidity of an unjustified warrantless arrest (People vs. Barros, 231
sc'RA 557.J
b. If offense is non-bailable
The inquest .prosecutor must move for the suspension of the bail
hearing until the fifteen (15)-day preliminary investigation of the inquest
proceeding is terminated and the resolution is promulgated.
5. Termination of Inquest Proceedings

The inquest proceedings must be terminated within' the period prescribed


under the provisions of Article 125 of the Revised Penal Code, as amended.

52

Revised Manual for Prosecutors

.~

I
I
I
I
I
I

(12 hours for light offenses; 18 hours for less grave offenses; 36 hours for
grave offenses counted from the time of arrest).
However, the following factors are taken into consideration in determining whether or not Article 125 of the Revised Penal Code has been violated:
I. the means of communication
2. the hour of the arrest
3. other circumstances such as:
a. the time of surrender; and
b. the material possibility for the prosecution to make the investigation and file in time the correspondmg Information because of the
following reasons:

I
I
I
I
I
I
I
i
I
I
I
I
I
I

availability of the clerk of court to open the courthouse, docket


the case and have the order of commitment prepared; or
availability of the judge to act on the case; or
the fact that government offices open for business transactions
at 8:00 o'clock in the morning and close at 5:00 o'clock in tht
afternoon

The period pre:;cribed in Article 125 of the Revised Penal Code shall
not be applicable when the persons arrested/detained without the benefit of a warrant of arrest issued by the court are children defined un~er
Republic Act No. 9344, otherwise known as the "Juvenile Justice and
Welfare Act of 2006." (please refer to Department Circular No. 39
s. 2007 on the "Rules on Inquest With Respect to Children in Conflict
with the Law as de.fined Under Republic Act No. 9344, Otherwise
Known as the "Juvenile Justice and Welfare Act of 2006 "found in
Appendix "A" on p. 300 of this Afanual)

III. OTHER MATTERS


A. PRESENCE OF THE INQUEST PROSECUTOR AT THE CRIME
SCENE
Whenever a dead body is found by the law enforcement authorities and there
is reason to believe that the death of the person resulted in foul play, or from the
unlawful acts or omissions of other persons and such fact has been brought to his
attention, the inquest prosecutor shall:

Revised Manual for Prosecutors

53

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

I
I
I
I

1. forthwith proceed to the crime scene or place of discovery of the dead person;
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 talcing 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 finding to the Chief State Prosecutor or the
Provincial/City Prosecutor as the case may be for appropriate action.

B. SANDIGANBAYAN CASE~
Should any complaint cognizable by th~ Sandiganbayan be referred to an
inquest prosecutor for the conduct of inquest proceeding~, the latter shall refrain
from accepting the same and shall advise the law enforcer to file the complaint
before the Office of the Ombudsman or the Office of the Special Prosecutor
through any of the branch clerk of court in th~ locality.

C. ABSENCE OR UNAVAILABILITY OF THE INQUEST PROSECUTOR


The inquest prosecutor shall take appropriate remedial measures to correct
any defect in the complaint when the same has beeP.. filed directly before the court
by the police officer or _tf.i~offended party because of the unavailability of an
inquest prosecutor.

D. RECOVERED ARTICLES
1. Responsibility of the Inquest Prosecutor:

The inquest prosecutor shall:


a. see to it that all the articles recovered by the law enforcement authorities
at the time of the arrest or apprehension of the arrested/detained person
are physically inventoried, checked and ac"ounted for;
~

54

'..-4

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

b. make sure that the corresponding photographs of the recovered articles/


properties are taken and which photographs should be attached to the
record of the case; and
c. ensure that the items recovered are duly safeguarded by the law enforcer
and the chain of custody is properly recorded.
2. Deposit of Recovered Articles/Prope_rties:
The said articles shall be properly deposited by the police investigator
with the police evidence custodian.

E. RELEASE OF RECOVERED ARTICLES


The inquest prosecutor shall, with the prior approval of the Chief State
Prosecutor or the Provincial/City Prosecutor or his du1,y authorized represemative, order the release (please refer to NPS INQ Form No. 06, s. 2008 on p. 69 of
this Manual) of recovered articles to their lawful owner or possessor, subject to
the conditions that:
1. there is a written request for their release (please refer to NPS INQ Form
No. 07, s. 2008 on p. 71 of this Manual);

2. the person requesting the release of said articles is shown to be the lawful
owner or possessor thereof;
3. the requesting party undertakes under oath to produce said articles before
the court when so required;
4. the requesting party, if he is a material witness to the case, affirms or
reaffirms his statement concerning the case and undertakes under oath to
appear and testify before the court when so required;
5. the said articles are not the instruments, or ti)ols in the commission of the
offense charged nor the proceeds thereof; and
6. photographs of said articles are first taken and duly certified to by the
police evidence custodian as accurately representing the evidence in his
custody.

IV.

RELEVANT JURISPRUDENCE
1. The permissible warrantless arrests are: ( 1) arrests in jlagrante delicto; (2) arrests
effected in hot pursuit; (3) arrests of escaped prisoners (People vs. Macalaba, 395
SCRA 461).

Revised Manual for Prosecutors

SS

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

2. After the filing of the Information in court without a preliminary investigation,


the accused may, within five (5) days from the time he learns of its filing, ask for
a preliminary investigation with the same right to adduce evidence in his defense
as provided under Sec. 6, Rule 112 of the Rules on Criminal Procedure. This
five-day rule is mandatory (People vs. Figueroa, 27 SCRA 1239 {1969]).
3. Reliable information alone, absent any -Y~tl_a~! indicative of a felonious enterprise in the presence of and within the view of the arresting officers, are not
sufficient to constitute probable cause that would justify an in flagrante delicto
arrest (People vs. Molina, GR No. 133917, February 19, 2001, en bane; See a!so
People vs. Chua, 396 SCRA 657; People vs. Nuevas, G. R. No. 170233, February
22, 2007).

4. A warrantless arrest is not justified by the mere fact that a crime is being committed in one's p1~sence. The 3!festing 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, GR No. 128587, March 16, 2007).
5. Buy-bust operations are considered arrests infiagrante 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.

8. When a police officer seesthe offense, although at a distance, or hears the disturbances createi}l 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. Suero, 195 SCRA 388).
9. The "personal knowledge" of the fact of rape which was supplied by the r a p e
victim herself to the arresting officer falls within the purview of a warrantless
arrest (People vs. Alvario, 275 SCRA 529 [1997}).
I 0. 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

Revised.Manual for Prosecutors

.. <
f

I
I
I
I
I
I
I
I
I
I
I
I
I
i
I
I

I
I
I
I

V.

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

of an affidavit of arrest.
2. The affidavits of arrest and statements/affidavits of the complainant and his
witnesses may be subscribed before another prosecutor or a notary public but
the same should be re-affirmed before the inquest prosecutor.
3. Inquest proceedings should always be conducted by prosecutors in proper attire.
4. Inquest proceedings should never be conducted in the prosecutor's residence.
5. During the cond1ct of inquest proceedings, the inquest prosecutor must keep
calm and observe proper decorum.

Revised Manual for Prosecutors

57

I
I
I
I
I
I

I
I
I
I
I
I
I
I
I
I
I
I
I

i!

I
I'

58

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I

TEMPLATES OF INQUEST FORMS

I
I
I
I
I
I
I

Revised Manual for Prosecutors

59

I
I
I
I
I
I
I
I
I
I
I
I

NPS Investigation Form No. 01, s. 2008


Republic of the Philippines
Department of Justice
National Prosecution Service

INVESTIGATION DATA FORM

To be accomplished by the Office


NPS DOCKET NO.: _ _ _ _ _ __
DATE RECEIVED :
(stamped and initialed): _ _ _ _ _ _ _ _ _ _ __ Assigned t o : - - - - - - - - - Time Received:
- - - - - - - - - - - - - - - Date Assigned:_________
Receiving Sta.ff: _ _ _ _ _ _ _ _ _ , - - - - - -

To be accomplished by complainantlcounse//l,aw enforcer


(Use back portion if space is not sufficient)

I
I
I
I

I
I
I

COMPLAINANTIS: Name, Sex, Age &


Address

RESPONDENTIS: Name, Sex, Age &


Address

LAWIS VIOLATED:

WITNESS/ES: Name & Address

DATE & TIME of COMMISSION:

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.
I.S. N o . : - - - - ' - - ' ' - - - - - - - - - - - - -

Handling Prosecutor: _ _ _ _ _ _ _ _ _ _ __

60

Revfsed Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

C E R T I FI 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.

(Signature over printed name)

SUBSCRIBED AND SWORN TO before me this _ _ _ _day of _ _ _ _ _ _ _ _, 20 _ _, in

Prosecutor Administering Oath

*1, 2, 3 and Certification nee'1 not be accomplished for inquest cases

Revised Manual for Prosecutors

61

I
I
I
I
I
I
I
I
I
I
I
I
I

I
I
I
I
I
I

NPS INQ Form No. 01, s. 2008

Republic of the Philippines


Department of Justice

NATIONAL PROSECUTION SERVICE

Complainant's,
-versus-

Respondent/s.

x-----------------------------------------x

ORDER
(To submit additional evidence/documents)

In connection with the investigation being conducted ia the above-captioned case, you
are hereby directed to submit the following evidence/documents, to wit:

62

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

within
hours from receipt hereof (the period shall not exceed twelve [12] hours,
eighteen [18] hours or thirty-six [36] hours, as the case may be, from arrest); otherwise, the
undersigned shall order the release of the above-named respondent, and this case shall be set for
preliinary investigation.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _,Philippines
- - - - - - - - 20- - -

Inquest Prosecutor
(Signature over printed name)

Received copy, this_ day of _ _ _ _ _ _ _, 20

Copy received by:


Investigating/Pol ir.e Officer
(Signature over printea name)

Revised Manual for Prosecutors

63

I
I
I
I
I
I
I
I
I
I
I
I
I

NPS INQ Form No. 02, s. 2008

Republic of the Philippines


Department of Justice
NATIONAL PROSECUTION SERVICE

Complainant,
LS. 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:*

D
D

respondent was not lawfully arrested pursuant to the prov1s1ons


of Section 5, Rule 113 of the Revised Rules on Criminal Procedure.
the documents requirld by the undersigned have not been
submitted by the police investigating officer.
there exists no probable cause on the basis of the evidence
presented.

*Check appropriate box/boxes arid affix your initial.

I
I
I

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

64

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

_____________ ,Philippines.

Inquest Prosecutor
(Signature over printed name)

APPROVED:

Chief State/ Provincial/City Prosecutor


(Signature over printed name)

Received copy, this_ day of _ _ _ _ _ _ _, 20 __.

lff1e3tigating/Police Officer
(Signature over printed name)

Revised Manual for Prosecutors

65

I
I
I
I
I

NPS INQ Form No. 03, s. 2008


Republic of the Philippines
Department of Justice

Complainant/s,
LS. No.
For:

-versus-

--~-------

I
I
I
I
I
I
I
I
I
I

NATIONAL PROSECUTION SERVICE

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 of your witness/es, if any, to be
sworn to before me on
200_ at _ _ a.m./p.m. Attached is a copy
of the com;>laint and other evidence submitted by the complainant.
You are hereby WARNED that-failure on your part to comply with the subpoena shall
be consid~red 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

I
I
I
I

INVESTIGATING PROSECUTOR

66

Revis'ed Manual for Prosecutors

I
I
I
I
I

I
I
I
I
I
I
I
I
I
I

NPS INQ Form No. 04, s. 2008


Republic of the Philippines
Department of Justice
NATIONAL PROSECUTION SERVICE

Complainant,
-versus-

LS. No. - - - - - -

For: - - - - - - Respondent.

x-----------------------x
REQUEST FOR PRELIMINARY INVESTIGATION
AND WAIVER OF ARTICLE 125, REVISED PENAL CODE
(Where Arrest was Properly Effe~ted)
With the assistance of counsel of my choice, I wish to avail of my right to a preliminary
investigation, and for thi:; p:irpo;;e, 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)

I
I
I
I

Revi'.;ed Manual for Prosecutors

67

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

NPS INQ Form No. 05, s. 2008

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 hi~
right to preliminary investigation and not having executed a waiver pursuant ~o Article 125 of the
Revised Penal Code. I further certify that this Information is being ii.Jed with the prior authority of

the Chief State Prosecutor/Provincial/City Prosecutor.

Inquest Prosecutor
(Signature over printed name)

!
I

I
1
I
i

68

'

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

NPS INQ Form No. 06, s. 2008


Republic of the Philippines
Department of Justice
NATIONAL PROSECUTION SERVICE

Complainant,
I.S. No. _ _ _ _ _ _ __
For:

-versus-

---------

Respondent.

x---------------------------x
RELEASE ORDER
(Of Recove:red Articles)

THE EVIDENCE CUSTODIAN

On the basis of the request made by


- - - - - - - - - - - for the release to his
custody of the articles/properties particularly described as follows:

you are hereby directed to release to said


, the above-described
articles/properties which are presently under your custody. unless the same are being held for some
other lawful cause.
_ _ _ _ _ _ _ ,Philippines, _ _ _ _ _ 20_ __

Inquest Prosecutor
(Signature over printed name)
continued, next page>>

Revised Manual for Prosecutors

69

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

APPROVED:

Chief State I Provincial I City Prosecutor


(Signature over printed name)

Received copy, this_ day of _ _ _ _ _ _ _ _, 20_ _

Evidence Custodian
(Signature over printed name)

70

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

NPS INQ Form No. 07, s. 2008


Republic of the Philippines
Department of Justice
NATIONAL PROSECUTION SERVICE

Complainant,
- versus -

LS. No. - - - - For: - - - - - - -

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

REQUEST FOR RELEASE


with

UNDERTAKING
(Of Recovered Articles by Requesting Party)

I am respectfully requesting the release to my cmtody of certain articles/ properties, more


particularly described as follows:

which were recovered by the police authorities and presently in the custody of
, and in connection therewith, I declare lunder oath:

----------~

1. 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 articles/properties 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, next page > >
Revised Manual for Prosecutors

71

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

- - - - - -, Philippines, - - - - - 20 - - -

Requesting Party
(Signature over printed name)
SUBSCRIBEDANDSWORNTObeforemethis _ _ _ _ dayof_ _ _ _ _ __
20_ _ _ _, at _ _ _ _ _ _ _ _ _ _ _, Philippines.

Administering Officer
(Signature over printed name)

RECOMMENDING APPROVAL:

Investigating Prosecutor
(Sign'1ture over printed name)

APPROVED:

Chief State/City/Provincial Prosecutor

72

Revised Manual for Prosecutors

------------------......

::c
<

t1>
V\

""'l

...-~~~~~~~~~~~~~~~~~--~~~~~~~~~~~~-:.

t1>
0..

INQUEST PROCEDURE

(12 hours for tight; 18 hours for less grave offense; 36 hours for grave offenses)

0
~

OJ

(]

:::l

c:

OJ

....,

r::=:::-1~

0
...,
-0
...,

WITH
PROBABLE
CAUSE

V\

,..,
c:
,...
C'D

RECOMMEND
FILING OF
INFOIN
COURT

FILING OF INFO IN
COURT

DISMISSAL OF COMPLAINT &


RELEASE OF RESPONDENT

VI

SUSTAIN

W/O
PROBABLE
CAUSE

ARREST
PROPERLY
EFFECTED

AFFIDAVIT OF
ARREST
+IR+SS +
OTHER DOC

ARREST
NOT
PROPERLY
EFFECTED

RECOMMEND
RELEASE OF
RESPONDENT

ACTION f'Y
CP/PP/CSP
REVERSE

~
~

PRELIMINARY
INVESTIGATION PROPER

>.
~
0

r~veRsEJ~

0
...,

.....

"""

=
-z
~

iO
~

FILING OF INFO IN
COURT

I ~EE

PROCEDURE
..... OF P.l. BUT WITHIN
15 DAYS

r.ri

~
~

'

REGULAR P.I.
+RELEASE

....------. I

~ I PRELIMINARY INVESTIGATION

ACTION BY
CP/PP/CSP

RECOMMENDS
DISMISSAL OF
COMPLAINT+
RELEASE OF
RESPONDENT

(]

G<

,--

----- -

CONTINUE WITH INQUEST

~
~

DISlllSSALOFCOMPLAINT
RELEASE OF RESPONDENT

r.ri

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

I
I
I
I

PART III. SUMMARY INVESTIGATION


I.

GENERAL RULES
A. CONCEPTS AND PRINCIPLES
1. Summary Investigation - refers to the investigation conducted by the prosecutor
to determine the existence or non-existence of probable cause in cases that do not
require preliminary investigation, (Sec. 8, Rule 112, as amended, Revised Rules on
Criminal Procedure) namely those involving offenses in which the prescribed penalty of imprism:meut does not exceed four (4) years and two (2) months, regardless
of the fine.

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


court procedure in criminal cases covered by Supreme Court Resolution of 1991,
as amended, involving offenses in which the penalty prescribed by law does not
exceed six (6) months of imprisonment, or fine not exceeding one thousand pesos
(Php 1,000.00).

B. COVERAGE
All offenses punishable by imprisonment of less than four (4) years twc (2) months
and one (1) day, viz:
1.
2.
3.
4.

Violations cf Traffic Laws, Rules and Regulations;


Violations of the Rental Law;
Violations of Municipal or City Ordinances;
All other criminal cases where the penalty prescribed by law for the offense charged
is imprisonment not exceeding six months, or a fine r.ot exceeding (Pl,000.00), or
both, irrespective of other imposable penalties, accessory or otherwise, or of the civil
liability arising therefrom: provided, however, that in offenses involving damage to
property through criminalnegligence, this rule shall govern where the imposable fine
does not exceed ten thousand pesos (Pl0,000.00).
Offenses with six (6) months imprisonment or fine of Pl,000.00:
1) Art." 130 - Searching Domicile Without Witnesses
2) Art. 144 - Disturbance of Proceedings
3) Art. 151 - Resistance and Disobedience to a Person in Authority or the
Agents of Such
4) Art. 153 - Tumults and Other Disturbances of Public Order
5) Art.154- Unlawful Use of Means of Publication and Unlawful
Utterances
6) Art. 15 5 - Alarms and Scandals
7) Art. 175 - Using False Certificates
~

74

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

8) Art.
9) Art.
10) Art.
11) Art.
12) Art.

178 179 200 202 217 -

Using Fictitious Name and Concealing True Name


Illegal Use of Uniforms and Insignia
Grave Scandal
Vagrants and Prostitutes (1st Offender)
Abandonment of Minor by Person Entrusted With His
Custody
13) Art. 265 - Less Serious Physical Injuries
14) Art. 266 - Slight Physical Injuries
15)Art. 239 - Unlawful Arrest
16)Art. 275 - Abandonment of Helpless Person
17) Art. 276 - Abandoning a Minor (Paragraph 1)
18)Art. 281 - Other Forms of Trespass
19) Art. 282 - Grave Threats (Par. 2 [Without Condition])
20) Art. 283 - Light Threats
21) Art. 285 - Other Light Threats
22)Art. 286 - Grave Coercion
23)Art. 287 - Light Coercion
24) Art. 288 - Other Similar Coercion
25) Art. 289 - Formation, Maintenance and Prohibition of Combination or
Capital or Labor thru Violence or Threats
26) Art. 290 - Discovery of Secrets thru Seizure of Correspondence (Par. 2)
27) Art. 291 - Revealing Secrets with Abuse of Office
28) Art. 30~ - Theft if the amount involved does not exceed P50.00
29)Art. 312 - Occi1pation vfReal Property or Real Rights in Property
30) Art. 315 - Estafa involving P20Q.OO
3 1) Art. 31 7 - Swindling of Mi11or
32)Art. 318 - Other Deceits
33) Art. 329 - Other Mischief (Malicious Mischief)
34) Art. 338 - Simple Seduction
35) Art. 339 - Acts of Lasciviousness with the Consent of the Offended
Party
36)Art. 358 - Light Oral Defamation (2nd Par.)
3 7) Art. 363 - Incriminating Innocent Person
38) Art. 364 - Intriguing against Honor
39) Art. 389 - Light Slander by Deed (2nd Par.)
40) PD 1227 - Unlawful Entry to U.S. Naval Facilities
41) PD603 - Non-Support

I
I
I
I

Revised Manual tor Prosecutors

75

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

II.

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 ifhe 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 ifthe resolution is approved. The Information shall not
contain a certification that a preliminary investigation has been conducted.
Where the prosecut01 opts to conduct preliminary investigation, he/she shall follow the
procedure under Part IV of this Manual.

I
I
I
I

,.

76

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

PART IV. PRELIMINARY INVESTIGATION


I.

GENERAL RULES
A. CONCEPTS AND PRINCIPLES
A preliminary investigation is an inquiry or proceeding to determine whether there .is
sufficient ground to engender a well-founded belief that a crime has been committed and the
respondent is probah!y guilty thereof and should be held for trial (Sec. 1, Rule 112, Revised
Rules on Criminal Procedure).
B. NATURE

OF A PRELIMINARY INVESTIGATION

.1. It is an Executive Fune-don.


A preliminary investigation is a non-judicial function. It is essentially executive
in nature (A.M No. MI'J-00-1256, December 15, 2000). It is a function of the Office
of the National Prosecution Service which is under the control and supervision of the
Department of Justice within the executive branch of the government.
2. It is P 'eliminary in Nature.
.

..

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


.. the trial proper. The investigating officer acts upon probable cause and reasonable
belief, not proof beyond reasonable doubt. The occasion is for the presentation of
such evidence only as may engender a well founded belief that an offense has been
committed and that the accused is probably guilty thereof (Afayuga v. Maravilla, 18
SCRA 1115).
3. It is a Summary and Inquisitorial Proceeding.
A preliminary investigation is not a judicial trial or is any part thereof, it being
merely a more or less summary proceeding intended to discover the person/s who
may reasonably be charged with a crime so as to enable the prosecutor to prepare his
Complaint or Information (U.S. v. Yu Tuico, 34 Phil. 2009; U. S. v. Marfori, 35 Phil.
606).
While it is a summary proceeding, it is done in a scrupulous manner to prevent
material damage to a potential accused's constitutional right to liberty and the guarantees of freedom and fair play (Drilon v. CA., 258 SCRA 280 [1996]).
It is merely inquisitorial and it is often the only means of discovering the perso11s
who may be reasonably charged with a crime, to enable the prosecutor to prepare his
Complaint or Information (Tandoc v. Resultan, 175 SCRA 37 [1989]).

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I

I
I
I
1
I
I
I
I
I

4. It is a Judicial Inquiry or Proceeding.

The conduct of a preliminary investigation, which is defined as "an inquiry or


proceeding for the purpose of determining whether there is sufficient ground to engender a well-founded belief that a crime has been committed and that the respondent
is probably guilty thereof, and should be held for trial" is, like court proceedings,
subject to the requirements of both substantive and procedural due process. This is
because a preliminary investigation is considered a judicial proceeding wherein the
prosecutor or investigating officer; by the nature of his functions, acts as a quasijudicial officer (Cruz v. People, 237 SCRA 439, reiterating Coju:ngco v. PCGG, 190
SCRA 226(1990)).

'

l
t

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


as a quasi-judicial officer (A.M No. MI'J-00-1256, December 15, 2000) although the
Department of Justice in itself is not considered a quasi-judicial body. (Cruz, Jr. v.
People, 223 SCRA 439 [1994))
C. RIGHT TO A PRELIMINARY INVESTIGATION

1. It is not a Constitutional Right.


The right to a prd.iminary investigation is not a constitutional right, r.1eaning, it
is not expressly provided for in the Constitution. It is not therefore gt>.aranteed b~r the
Constitution unlike for instance, th~ right to counsel or to remain siient which is
expressly embodied unde:r Sec. 12 of Article ill of the Constitution.

2.

It is Merely a Statutory Grant.

Rather, the right to a preliminary investigation is a statutory grant (Salonga vs.


Pano, 134 SCRA 277). Hence, a law denying the right to a preliminary investigation
is not unconstitutional (Lozada vs. Hernandez, 92 Phil. 1051). For instance, Sec. 6
[formerly Sec. 7] of Rule 112.ofthe
Revised Rules on Criminal Procedure provides
../
for the filing of the lnfom1ation in inquest cases, even without the conduct of a pre. liminary investigation.

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
himself for arraignment and go to trial (People v. Valencia, 214 SCRA 88; People i-:
de Asis, 228 SCRA 267).
In inquest cases, the accused impliedly waive"s his right to a preliminary investigation, if he fails to invoke the same within five (5) days from the time he learns
78

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

I
I
I
I

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 pen3:lty prescribed by law is at least four (4) years, two (2)
months and one (1) day, without regard to the fine (Sec. 1, par. 2, Rule 1.12, supra.).
All offenses punishable by imprisonment of less than four (4) years two (2) months
and one ( 1) day where the prosecutor believes that a preliminary investigation should be
conducted.
All offenses committed by public officials or employees in connection with the performance of their official Juties an<l functions.
.

E. 'QUANTUM OF EVIDENCE REQUIRED


In preliminary investigations, the evidence required for purposes of filing a
Complaint or Inf01ma!ion in court is merely such evidence as would engender a wellfounded belief that a crime has been committed and the respondent is probably guilt<}
thereof, and should be held for trial (Sec. 1, par. 1, Rule 112, supra.).

1. "Probable Cause" Defined.


a. "Probable cause" has been defined as a reasonable grounc-t of presumption that
a matter is or inay 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.
The term does not mean "actual and positive cause" nor does it import absolute certainty. It is merely based on- opinion and reasonable belief. Thus, a finding
of probable cause does not require an inquiry into whether there is sufficient
evidence to procure a conviction. It is enough that it is believed that an act or
omission complained of constitutes the offense charged. Precisely, there is a trial
for the reception of evidence of the prosecution in support of the charge (Paredes,
Jr., v. Sandiganbayan, G. R. No.108251, January 31, 1996).

Revised Manual for Prosecutors

79

I
I
I
I
I
I
I
I
I
I

b. A finding of probable cause needs only to rest on evidence showing that


more likely than not a crime has been committed and was committed by
the suspects. Probable cause need not be based on clear and convincing
evidence of guilt, neither on evidence es.tablishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty
of guilt. As well put in Brinegar vs. U.S., while probable cause demands
more than bare suspicion" it requires "less than evidence which would
justify" conviction. A finding of probable cause merely binds over the
suspect to stand trial. It is not a pronouncement of guilt (Webb v. De Leon,
247 SCRA 652 [1995)).
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 of the prosecution, that the person charged was
guilty of the crime for whic~ he was prosecutec! (Cruz, Jr. l-: People, 233
SCRA 439 [1994]).

2. No Fixed Formula for Determining Probable Cause.


There is no general formula or fixed rule for the determination of probable
cause, since the same must be decided in light of conditions obtaining in
given situations and its existence depends to a farge degree upon the finding or opinion of the investigating prosecutor conducting the investigation.
However, such a finding should not disregard the facts before the investigating prosecutor nor run counter to the clear dictates vf reason (Fernande v.
Sandiganbayan, G. R. No. 96182, Aug. 19, 1992).

I
I
I
I
I
I
I
I
I

3. Sound Discretion of the Prosecutor.


The institution of a criminal action depends upon the souna discretion of
the prosecutor. He may or may not file the complaint or information, follow
or not follow that pres_ented by the offended party, according to whether the
evidence; in his opiliion, hi sufficient or not to establish the guilt of the accused beyond reasonable doubt.
The approach of the courts to the quashing of criminal charges necessarily
differs from the way a prosecutor would handle exactly the same question - a
court faced with a fifty-fifty proposition of guilt or innocence always decides
in favor of innocence, while a prosecutor, conscious that he represents the
offended party, may decide to leave the problem to the discretion of the court
(Venus vs. Desierto, 198 SCRA 196 [1998]).

80

Revised Manual for Prosecutors

I
I
I
I
I
I

1
I

I
I
I
I
I
I
I
I
I
I
I

F. PURPOSES OF TRE CONDUCT OF A PRELIMINARY


INVESTIGATION
A preliminary investigation is intended:
1. to secure the innocent against hasty, malicious and oppressive prosecution
and to protect him from an open and public accusation of a crime and from
the trouble, expense and anxiety of a public trial; (People v. Pocu/an, 167
SCRA 176 [1988)); Rodis v. Sandiganbayan, 166 SCRA 618 [1998]; Salonga
v. Pano, 134 SCRA 438 [1985}; Trocio v. Manta 118 SCRA 2411982]; Sausi
v.Querubin, 62 SCRA 155 [1975]; and .
2. to _protect the State from having to conduct useless and expensive trials
(Tandoc v. Resultan, 175 SCRA 37 [1989)).
. G. OFFICERS AUTHORIZED TO CONDUCT PRELIMINARY
INVESTIGATIONS
The following may conduct preliminary investigations (Sec. 2, par. 1, Rule
112, supra):
1. Provincial or City Prosecutors and their assistants;
The prosecutor's -~~thority to conduct preliminary investigation shall
include-all crimes cognizabl~ by the proper court in their respective temtorial
jurisdiction, including those committed by government officials in relation to
their office.
2. National and Regional State Prosecutors and their assistants; and,
3. Other officers as may be authorized by law:
a. The COMELEC is mandated under the 198? Constitution, not only to
investigate but also to prosecute cases of violation of election offenses
(People v. Inting, 187 SCRA 788).
If the prosecutor files an information charging an election offense or
prosecutes a violation of the election law, it is because he has been deputized by the COMELEC. He does not do so under the sole authority of his
office (People v. Basilla, 179 SCRA 87).

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


investigations and to prosecute all criminal cases involving public
officers and employees, not only those within the jurisdiction of the
Sandiganbayan, (Sec. 15 (1) and Sec. 11 (4) of R. A. No. 6770 [An Act

Revised Manual for Prosecutors

81

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Providing for the Functional and Structural Organization of the Office


of the Ombudsman, and for Other Purpu::es]) 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).

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


Ombudsman pertains to any act or omission of any public officer or employee when such act or omission appears to be ill~gal, unjust, improper
or inefficient.
NOTE: A prosecutor has a shared authority to investigate and pros-

ecute Ombudsman cases not cognizable by the Sandiganbayan. With


respect to cases cognizable by the Sandiganbayan, the Ombudsman
has primary authority to investigate and exclusive authonty to file anc1
. prosecute Sandiganbayan cases (Uy v. Sandiganbayan, supra.).
Under DOJ Circular No. 26 dated July 3, 2008, a prosecutor
has legal authority to take cogni:zanc~ of, and conduct preliminary
investigation/inquest proceedings on complaints filed before him/her
involving violations of penal laws, regardless of whether or not the respondents therein are public officials andfor 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 s'tage of the IDVt;Siigation, ia line with its primary jurisdiction under the last sentence of
Sec. 15(1) of RA 6770, conformably with the ruling in Honasan II vs.
The Panel of Investigating Prosecutors of the DOJ (GR No. 159747,
April 13, 2004, 427 SCRA 46).
.

In other words, resolutions in cases involving government officials


falling within the jurisdiction of the Regional Trial Courts (RTCs),
Municipal Trial Courts (MTCs) or Metropolitan Trial Courts (MeTCs)
need not~ forwarded to the Office of the Ombudsman for review or
approval.

However, resolutions of cases falling witl:n the jurisdiction of the


Sandiganbayan shall be forwarded by the Chief State/Provincial/City
Prosecut()r to the Office of the Ombudsman for review pursuant to its
primary jurisdiction.
c. The Presidential Commission on Good Government with the assistance
of the Office of the Solicitor General and other gov~mment agencies was
empowered under Executive Order No. 14, series of 1986, to file and
prosecute before the Sandiganbayan: all cases investigated by it under

82

Revised Manual for Prosecutors

I
I

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

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. No. 1 and E.O. No. 2 were the ill-gotten cases of
former President Ferdinand Marcos.
NOTE: The authority to investigate includes the authority to conduct

a preliminary investigation (Zaldivar v Sandiganbayan, 160 SCRA


843 [1988]; Cojuangco v. PCGG, 190 SCRA 226 [1990]; Virata v.
Sandiganbayan, 2(J2 SCRA 680 [1991]).
NOTE: For other violations of the Anti-Graft and CoIT'..Ipt Practices

Act not otherwise falling under E.O. No. 1 and E.O. No. 2. as aforementioned, the jurisdiction is vested in the Ombudsman and other
duly authorized agencies such as the National Prosecution Service
of the Department of Justice, unless authorized by the President in
accordance with Sec. 2(b) ofE.O. No. 1 (Republic of the Philippines
v. Migrinio, 189 SCRA 289 [1990]).
The authority of the aforementioned officers/ government agencies to
' conduct preliminary investigations shall include al~ crimes cognizable by
the proper court in their respective territorial. jurisdiction (Sec. 2, par. 2,
Rule 112, supra.).

II.

PROCEDURE
A. COMMENCEMENT OF TFE 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 [J 987}) directly with the office of the
investigating p;secutor;

C;.. -&.e sworn complaint shall be accompanied by an ac.yomplished


~ary Investigation Data Form (please refer to NPS Investigation

Form No. OJ, s. 2008 on p. 108 of this Manual) and other supporting
documents.
2. by referral from or upon request of the law enforcement
gated a criminal incident;

agen~y

that investi-

NOTE: When the referral came from or is upon the request of a law

enforcement agency that investigated the complaint, the latter shall submit the original or duplicate original or certified machine copies of the
affi.davit/s of the complainant/sand his/their witness/es.

Revised Manual fo1 Prosecut9rs

83

I
I
I
I
I
I

3. upon request of a person arrested or detained pursuant to an arrest without


warrant who executes a waiver in accordance with the provisions of Article
125 of the Revised Penal Code, as amended;
4. by an Order or upon the directive of the court or other competent authority;
or
5. upon the initiative of the Commission on Elections, or upon a written
complaint by any citizen, a candidate, a registered political party, a coalition
of registered parties or an organization under the party-list system or any
. accredited citizen arm of the Commission on Elections in cases of election
offenses; (Secs. 3 and 5, Rule 34 of the COMELEC Rules ofProcedure).

a. Contents of the Complaint

I<

.- .

I
I
I
I
I
I
I
I

1. the full and complete names and exact home, office or postal addresses
of the oomplainant/s and his/their witness/es;
2. the full and complete name and exac~ hom'e, office or postal address of
the respondent/s;
3. the offense/s charged and the place and exact date and time of its/their
commission; and,
4. whether or not there exists a related case and, if so~ the docket number
of said case and the name of the investigating prosecutor thereof.

b. Number of Copies of Affidavits; Other Requirements


The complaint/and s1wporting affidavits shall be iri such number of
copies as .there are respondents, plus five (5) copies for the court/office
file.
Where a complaint charges multiple offenses which cannot be the
subject of one inci_dent or information, the complainant may be required to
submit such additional copies of the complaint and supporting affidavits
as there are offenses charged in the complaint.

I
I
I
I

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


shall state, among others:

If the offense charged is punishable by imprisonment not exceeding


one (1) year or a fine not exceeding Five Thousand Pesos (Php5,000.00)
and the parties to the case are all residents of the' same city or municipality, the complaint shall be accompanied by the certification required

84

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I

I
I
I
I
I
I
I
I

under Sec 412 (a) of RA 7160, "The Local Government Code of 1991."
Otherwise, the prosecutor shall not take cognizance of the case.
The affidavits shall be subscribed and sworn to before any prosecutor
or government official authorized to administer oath, or, in their absence
or unavailability, before a notary public, each of whom must certify that
he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits (Sec. 3, par. (a), Rule
112, supra.).

B. INITIAL ACTION BY THE INVESTIGATING PROSECUTOR ON THE


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

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


whereina. he or his wife or child is interested as heir, legatee, creditor or otherw1s~~ or
b. he is related to either party within the 6th degree .of consanguinity or
affinity or to counsel within the 4th degree; or
c. he has been named executor, administrator, guardian, trustee or
counsel.

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


inve~tigation shall be re-assigned to another investigating prosecutor.
2. dismiss the same if he finds no ground to continue with the inquiry (please
refer to NPS INV Form No. 02, s. 2008 on p. 110 of this Manual.):
a. that the offense charged in the complaint was committed outside the
territorial jurisdiction of the office of the investigating prosecutor;
b. that at the time of the filing of the complaint, the offense/s charged
therein had already prescribed;
c. that the complainant is not authorized under the provisions of pertinent
laws to file the complaint; and

Revised Manual for Prosecutors

85

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

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 ~hereof is attached to the complaint where the
complainant is an employer and the- regpondent 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.

:e

~"

.'

If he/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) y~m;, applying the rules and procedure on the conduct of the prelimmary
investigation as herell! provided.
4. issue a subpoena to the respondent, attaching thereto a copy of the complaint together with the affidavits of witnesses anc! otht;r supporting documents (Sec. 3 {b), Rule 112, supra.). (please refer to NPS INV Forms Nos.
03, 04, and 05, s. 2008 on pp. 112, 113 and 114 of this Manual)

SERVICE OF THE SUBPOENA TOGETHER WITH THE COI\-IPLAINT


AND SUPPORTING AFFIDAVITS
AND OTHER DOCUMENTS TO THE
.. .
RESPONDENTIS
~~

1. To Prev2nt Loss of Documents:


. Whenever circumstances warrant and to prevent the loss of documents
in the course of the service of a subpoena through ordinary modes, the investigating prosecutor may require the respondent or other parties to appear
before him on a designated date, time and place and then and there personally
furnish them with copies of the complaint, supporting affidavits and other
documents.

.
At the said or any other setting, the responden(shall have the right to
examine all other evidence submitted by the complainant and to obtain cop-

86

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

ies thereof at his expense. l f 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), pm: 2., Rule 112, supra.; Commissioner of Internal
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 of the complaint, supporting affidavits and other documents, as well as
to examine all other pieces of evidence submitted by the complainant.

2. Service to a Respondent Residing in a Distant Place


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

3. Where Respondent Canon\ bf' S11bpoenaed or if Subpoenaed Does Not


Submit Counter-Affidavit
'''J;;

If 1 respondent cannot be subpoenaed, as. for instance, he transferred


residence without leaving any forwarding address, or if subpoenaed, does not
submit his/her counter-affidavit, the investigating prosecutor shall resolve the
complaint based on the evidence presented by the complainant (Sec. 3, par.
(d), Rule 112, supra.).

4. Objects as Evidence
Objects as evidence need not be furnished either party but shall be made
accessible for examination, copying or photographing at the expen}>e of the
requesting party (Sec. 3, par. (b), Rule 112, supra.).

5. Guidelines to be Observed in the Service of Subpoenas


To expedite the conduct of a preliminary investigation, the foll0wing
guidelines shall be observed in the service of subpoenas:
a. Service of subpoena and all papers/ documents required to be attached
thereto, shall be by personal service to be performed by the regular
process servers. In their absence, the cooperation of the Provincial/

Revised Manual for Prosecutors.

87

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

City/Municipal Station Commanders of the Philippine National Police


(PNP) maybe requested for the purpose.
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:
L the name and return address of the sender, and the typewritten/
",thus instructing
printed phrase "First Notice Made on
the postmaster/postal, employee of th~ 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 of the unclaimed/returned envelope,
the investigating prosecutor may proceed to resolve the complaint on
the basis of the 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 returne<l within 20 days
from mailing, the investigating prosecutor may proceed to resolve the
complaint on the basis of the evidence presented by the c::>mplainant.
D. SUBMISSION OF TQE COUNTER-AFFIDAVITIS BY THE
RESPONDENT/S _,,-'
Within ten (I 0) days from receipt bf the subpoena together with the complaint and supporting affidavit/s and document/s, the respondent shall submit
his counter-affidavit and that of his witness/es and other supporting documents
which shall be subscribed and sworn to and certified based on the NPS Sample
Format "A" s. 2008 on p. 131 of this Manual. Copies of the counter-affidavit/s
and supporting documents, if any, shall be furnished the complainant/s by the
respondents.

88

Revised Manual for Prosecutors

Ii
'

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

1. Extension of Time within which to Submit Respondent's CounterAffidavit

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


shall be allowed or granted by the investigating prosecutor except \vhen the
interest of justice demands that the respondent be given a reasonable time or
sufficient opportunity to:
a. engage the services of counsel in order to assist him during the preliminary
investigation proceedings;
b. examine or verify the existence, authenticity or accu1w.;y of voluminous
records, files, accounts or other papers or documents presented or submitted in support of the complaint; 'Jr
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 may be authorized by the Chief St:ite Prosecutor/Reg1onal State Prosecutor/ Provincial
or City Proser:utor concerned.
2. Filing of a Motion to Dismiss, l\tlemorandum or Motion in Lieu of a
Counter-Aftidavit
a. General Rule

A memorandum, manifestation or motion to dismiss signed by counsel


of the respondent and filed before the prosecution office is a prohibitive
pleading (Commissioner of Internal Revenue v. Court ofAppeals, supra)
and cannot take the place of a counter-affidavit. It should be ignored.
Only a counter-affidavit subscribed and sworn to by the respondent before
the pu"blic prosecutor can dispute or put at issue the allegations in the
complaint.
Thus, a respondent relying on the manifestation, memorandum or motion to dismiss filed by his counsel is deemed to have not controverted
complainant's evidence. (DOJ Resolution No. 109, Series of 1990, 1. S.
No. 89-243 re the case of 'Bulacan Garden Corporations v. Filomena",
OPP, Bulacan.)

Revised Manual for Prosecutors

89

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

However, if such memorandum, manifestation or motion to dismiss


is verified by the respondent himself, the same may be considered as his
counter-affidavit.
All thegrc:iunds for the dismissal of the complaint, as well as objections to the sufficiency. thereof, shall be alleged or incorporated in the
counter-affidavit and shall be resolved by the investigating prosecutor
jointly on the merits of the case.
b. Exceptions
The investigating prosecutor may, however, grant a motion to dismiss
filed by a respondent who is yet to file or has not filed his counter-affidavit
if the said motion is verified and satisfactorily establishes, among others:
1. the circumstances specified in II B (2) of this Part;
2. 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
3. the extinction of respondent's criminal 1iability by ieason of death,
pardon, amnesty, repeal of the law under which prosecution i:::; sought,
or any other legal causes.

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


and Other Similar Pleadings
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-affidavit/sand 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 ha.Sis of an affidavit of
desistance.

90

Revis"ed Manual for Prosecutors

I
1

I
I
I
I
I
I
I
.1

I
I
I
I
I
I
I
I
I
I
I

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

Upon motion 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.
a. Concept of a Prejudicial Question.
A prejudicial question is one, the resolution of which is a logical antecedent of the issue involved in"' r,ase and the cognizance of which pertains
to another tribunal (Ras v. Rasul, 100 SCRA 125 [1980]; 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 [1984}; and Librodo v. Coscolluela, Jr., 116 SCRA
303 [1982))
b. Elements of a Prejudicial Question.

The essential elements of a prejudicial question are:


1. the civil action involve~ an issue similar or intimately related to the
issue raised in the criminal action;
2. the resolution of such issue determines whether or not the criminal
action may proceed; (Sec. 5, Rule 111, supra/ and
3. the cognizance of the said issue pertains to another tribunal (Cf kas v.
Rasul, supra; Quiambao v. Osorio, supra).
c. Issuance of an Order Suspending the Proceedings Due to the Existence of a
Prejudicial Question; Written Approval of the Head of Office Required

All orders suspending the preliminary investigation based on the existence


of a prejudicial question issued by the investigating prosecutor shall have
the written approval of the Chief State Prosecutor/Regional State Prosecutor/
Provincial/City Prosecutor concerned or his duly designated assistant. (please
refer to NPS !NV Form No. 06, s. 2008 on p. 115 of this Manual)

Revised Manual for Prosecutors

91

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Upon approval and issuance of the order, the complaint is considered


archived.
E. WHEN TO SET CASE FOR CLARIFICATORY QUESTIONING
The investigating prosecutor may set a hearing for clarificatory questioning
within ten (10) days from the submission of the counter-affidavit/s and other
documents or from the expiration of the period of their submission, to propound
clarificatory questions to the parties or their witnesses if he believes that there are
matters which need to be inquired into personally by him. (please refer to NPS
INV Form No. 07, s. 2008 on p. 116 of this Manual)
1. No Right to Examine 01 Cross-iExamine

In said hearing, the parties shall be itfforded Lhe opportunity to l:>e present
but without the right to examine or cross-examine. If they so desire, they may
submit written questions to the Investigating Prosecutor who may propound
such questions to the parties 0r witnesses concerned (Sec. 3(e), Rule 112,
supra).
2. Record/Notes During the Clarificatory Hearing

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.
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,
275 SCRA 696)

NOTE: A confession obtained however, during the preliminary investigation without the assistance of counsel is inadmissible (People v. Abano,
145 SCRA 555; People v. Ayson, 175 SCRA 216; People v. Escoridal, G.
R. Nos., 138934-35, January 06, 2002).

I
I
I
I

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

92

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

F. REPLY-AFFIDAVITS, REJOINDERS AND MEMORANDA; WHEN TO


ALLOW THE FILING THEREOF
The investigating prosecutor shall not require or allow the filing or submission of reply-affidavits and/or rejoinders except:
1. where new issues of fact or questions of law which are material and substantial in nature are raised or invoked in the counter-affidavit or subsequent
pleadings; and,
2. when there exists a need for said issues or questions to be controverted or
rebutted, clarified or explained to enable the investigating prosecutor to arrive
at a fair and judicious resolution of the c2se.
In sueJi a case, the period for the submission of reply affidavits or rej0inders

shall in no case exceed five (5) days unless a longer period is authorized by the
Chief State Prosecutor/Regional State Prosecutor/ Provincial or City Prosecutor
concerned.
Neither shall the investigating prosecutor require nor allow the filing or
submission by the parties of raemoranda unless the case involves difficult or
complicated questior:s of law or of fact. In any event, the filing of memoranda by
the parties shall be done simultaneously and the period therefor shall not exceed
ten (10) days, unless a longer period is authorized by the Chief State Prosecutor/
Regional State Prosecutor/Provincial or City Prosecutor concerned (please refer'
to NPS Sample Format "A", s. 2008 on p. 131 of this Manual).

G. WHEN COMPLAINTS MAY BE CONSOLIDATED


The following complaints shall, as far as practicable, be consolidated for preliminary investigation purposes, (please refer to NPS INV Form 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 prosP-cutor 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 issu~s of
the same or similar character.

Revised Manual for Prosecutors

93

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

H. ACTIONS ON MOTIONS TO DISQUALIFY /INHIBIT


l. If a motion to disqualify/inhibit the investigating prosecutor is filed by any

of the parties at any stage of the preliminary investigation, the same shall
be forwarded to the head of office who may designate another investigating
prosecutor to handle the said preliminary investigation.
2. The Secretary of Justice, the Chief State Prosecutor or the Regional State
Prosecutor shall designate a prosecutor from another province or city within
the region or a state prosecutor in the Regional State Prosecution Office, as
Acting City or Provincial Prosecutor, to investigate and prosecute a case in
instance<; where patties question the partiality or bias of prosecutors of a
particular provincial or city prosecution office (par. 11, DOJ Order No. 318
dated 28 August 1991 [found in Appendix "C" on p. 304 of this Manual], as
amended by DOJ Order No. 54 dated 20February 1992[Appendix "D" on
p. 308)). (please refer to NPS INV Form No. 09, s. 2008 on p. 118 of this
Manual).
I. SUBMISSION OF THE CASE FOR RESOLUTION
The investigating prosecutor shall consider the case submitted for resoluti on:

..

1. when the respondent carmot be subpoenaed or, if subpoenaed, does not submit his counter-affidavit within the reglementary period. In such a case, the
investigating prosecutor shall base his resolution on the evidence presented
by the complainant (Sec. 3 (d), Rule 112, supra); or

2. upon submission by the parties of their respective affidavits and supporting


proof or documents, in which event, he shall, upon the evidence thus adduced,
determine whether or not there is sufficient ground to hold the respondent for
trial (Sec. 3(/), Rule 112, supra).

J. PREPARATION OF THE RESOLUTION


1. When There is Lack of Probable Cause
If the investigating prosecutor does not find sufficient basis for the prosecution of the respondent, he shall prepare the resolution recommending the
dismissal of the complaint.

2. When There is a Finding of Probable Cause


If the investigating prosecutor finds that probable cause exists, he shall
prepare the resolution and the corresponding Information or Complaint in
appropriate cases.
94

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Where the respondent is a public officer or employee or a member of


the Philippine National Police (PNP), the investigating prosecutor shall also
detennine whether or not the offense with which he is charged was committed
in relation to his office and, if so committed, such fact should be alleged in
the lnfonnation to be filed with the Sandiganbayan through the Office of the
Ombudsman. (Republic v. Maximiano Asuncion, G. R. No. L-108208, March
1994)

3. Form of the Resolution and Number of Copies


The resolution shall be written in the official language, personally and
directly prepared and signed by the investigating prosecutor (please re/a to a
Sample Resolution on p. 119 of this Manual). It shall be prepared in as many
copies as there are parties, plus five (5) additior1al copies.

a. Caption of resolution
The caption of the resolution shall indicate the:

1. names of all the complainants and all of the respondents;


2. Case Number/s, otherwise known as the Investigation Slip Number/s
(LS. No);

'3. the cffense/s charged;


4. the date of the filing of the complaint with the office;
5. the date of the assignment of the case to or receipt of the case record
by the investigating pwsecutor; and
6. the date that the case was submitted for resolution.

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.
Thename/softhevictim/sorinjuredparty/ies,nottheirrepresentative/s,
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.

Revised Manual for Prosecutors

95

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

In the case of a corporation or judicial entity, its corporate name


or identity shall be indicated and written as follows, " 'X' Corporation,
represented by its (position title), (name of corporate officer)".

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 p;-eliminary investigation er sammary
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
Ulustrati ve examples:
o I-01-INV-08A-00001
Region I
I
01
ORSP
INV
regular PI or summary investigation case
08
year 2008
A
month of January
00001 first regular PI/summary investigation case fo:.: year
2008

l
Region I
OPP La Union
Agoo Sub-Station
inquest case
year 2008
month of January
l Qth inquest case for year 2008

o l-05a-INQ::.08A-00010

I
05
a
INQ
08

A
00010 -

o XV-01-INV-08L-01000
XV
National Capital Region
01
OCP Antipolo
regular PI or summary investigation
INV
case
96

Revised Manual for Prosecutors

I
I
I
I
I
I

08
L
01000 -

o XVI-INV-08L-03000

XVI
INV
08
L
03000

OCSP
regular PI or summary investigation
year 2008
month of December
3,0001h PI/summary investigation case
for year 2008

d. Designation of Offense/s Charged

For offenses that are punishable under the Revised Penal Code, the
caption shall set forth the denommation of the offense and the specific
article and paragraph of the statute violated.

I
I
I
I
I
I
I
I
I
I
I
I

year 2008
month of December
l ,0001h Pl/summary investigation case
for year 2008

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.
e.

Contents of the Body of the Resolutioli


In general, the body of resolution should contain:
1. a brief summary of the facts of the case;
2. a concise statement of the issues involved;
3. applicable laws and jurisprudence; and
1
4. the findings, including an enumeration of all the documentary evidence
submitted by the parties and recommendations of the investigating
prosecutor.
All material details that should be found in the information prepared
by the Investigating Prosecutor shall be stated in the resolution.

Parts of a Resolution
As a rule, the body of a resolution is made up of four parts, namely:
1. Part 1 shall state the nature of the case as disclosed in the evidence
presented by the complainant such as his affidavit-complaint, the

Revised Manual for Prosecutors

97

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

affidavit of witnesses and documentary and physical evidence. The


affidavits shall be numbered in the order of the presentation of the
prosecution witnesses as disclosed in the list of witnesses appearing
in the information. As for the documentary evidence, they shall be
alphabetically marked as they would be marked during the pre-trial
and trial stages of the case.
2. Part 2 shall contain the version of complainant of the incident. The
presentation of the complainant's case should be concise and shall not
be cluttered with details that are not !1ecessr.ry to show the elements of
th~ offonse.
3. Part 3 shall allege the respondent's version of the incident. This must
also be concise: ,
4. Part 4 shall contain the discussion, analysis and evaluation by the
prosecutor of the evidence presented by the complainant and the
respondent, without relying on the weakness of the defense of the
respondent. It shall also contain the conclusion of the prosecutor. The
complainant's and respondent's versions of the incident need not be
repeated in this part except to point out excerpts relating to the existence or absence of the elements of tlie crime. Citation& of pertirient
laws and jurisprudence should support the conclusions reached; Where
numerical values are important, the number shall be written in words
and figures.

g. Parties Who Need to be Furnished with a Copy of the Resolution


The complete names and addresses of the complainant and the respondent shall be set out at the end of the resolution after the signature
of the investigating prosecutor and the head of the Prosecutor's Office
concerned under the phrase: "Copy furnished:".
If the parties are represented by counsel and the latter's appearance is
entered formally in the record, the counsel, not the party, shall be given a
copy of the resolution. (Sec. 4, par. 1, Rule 112, supra)

h. Signatures and Initials of Investigating Prosecutor


The investigating prosecutor shall sign the resolution and if the
resolution consists of two or more pages, the prosecutor shall initial all of
said pages, excluding the signature page.

98

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

4. Period to Conduct the Preliminary Investigation


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) 15-day extensions in the
following cases:
a.
b.
c.
d.
e.
f.

capitill offenses
complex issues
with counter-charges
consoiidation of related complaints
reassignment
other urgent/valid reasons
NOTE: Pursuant to Sec. 90 of RA 9165, otherwise known as the
Comprehensive Dangerous Drugs Act of 2004, the preliminary investigation of illegal drugs cases shall be terminated within thirty (30) days from
the date of filing.

5. Written Approval Required in the Dismissal of a Complaint or the Filing


of an Information in Court
No Complaint/Information may be filed or dismissed by an investigating
prosecutor without the prior written authority or approval of the Provincial,
City o'r Chief State Prosecutor or the Ombudsman or ~1is Deputy (Sec. 4, par.
3, Rule 112, supra).
K. TRANSMITTAL OF THE RECOMMENDATORY RESOLUTION AND
INFORMATION TOGETHER WITH THE COMPLETE RECORD OF
THE CASE
The investigating prosecutor shall forward his recommendat0ry (please refer
to a Sample Resolution on p. 119 of this Manual) and Information, together witf_
the complete records of the case, to the Chief State/Regional State/Provincial/
City Prosecutor concerned within five (5) days from the date of his resolution.
(Sec. 4, par. 2, Rule 112, supra.)
1. Preparation of the Information and its Contents
The Information shall be personally and directly prepared by the investigating prosecutor or such other prosecutor designated for the purpose and
signed by him. It shall state and contain, in addition to the requirements of
the Rules of Court on the sufficiency of the allegations in an Information, the
following:

Revised Manual for Prosecutors

99

I
I
I
I
I
I
I
I
I
I
I
I
I

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;

the place where the accused is actually detained;

the full names and addresses of the complainant and witnesses;

a detailed description of the recovered items, if any;

the full name and address of the evid~nce custodian;

specify aggravating and qualifying circumstances, if any (please refer to


Department Circular No. 50, s. 2000 found in Appendix "E" on p. 309 of
this Manual); and

the bail recommended, ifthe charge is bailable.

,.

The investigating prosecutor shall certify under oath that he or she, as


shown by the record, as an authorized officer, had personally examined the
complainant and his witnesses; that there is reasonable ground t0 believe that
a crime has been committed and that the accused is probably guilty thereof;
that the accused was informed of the complaint and of the evidence submitted
against him and that he was given an opportunity to submit contrcverting
evidence; and that he is filing the Information with the prior authority and
approval of the Chief State/Provincial/City Prosecutor concerned (Sec. 4, par.
1, Rule 112, supra.). (please refer to Sample Information Format on pp. 123129 of this Manual)
a. Lack of a Certification
If the preliminary investigation was actually conducted by the
prosecutor, the absence of a certification (please refer to NPS Sample
Format "B '.', 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.

I
I
I
I
I

b. Designation of Offense Not Binding Upon the Court


~

The designation of the offense is not binding upon the Court (Cinco
v. Sandiganbayan, 96 SCRA 86).

. 100

Revised Manual for Prosecutors

I
I
I
I
I
I

I
I
I

I
I
I

I
I
I
I
I
I

2. Recommended Bail; How Written

The bail recommended in the resolution shall be stated in the Information,


written in words and figures, and initialed by the investigating prosecutor.
3. Documents to be Attached to the Information

An Information that is filed in court shall, as far as practicable, be accompanied by a copy of the resolution of the investigating prosecutor, the
complainant's affidavit, the sworn statements of the prosecution's witnesses,
the respondent's counter-affidavit and the sworn statements of his witnesses
and such other evidence as may have been taken intc 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]; Al/ado v. Diokno, 232
SCRA 192 [1994}) .

4. Confidentiality of Resolutions

All resolutions prepared by an investigating prosecutor after preliminary


investigation, whether his recommendati0n be for the filing or dismissal of
the case, shall be held in strict confidence and shall not be made known to the
parties, their counsel and/or to any unauthorized person u:itil the same shall
have been finally ackd upon oy t.lie Chief State/Regional State/Provincial/
City Prosecutor or his duly authorized assistant and approved for promulgatior:. and release to the parties.
Any violation of the foregoing shall subject the investigating prosecutor
or the employee of the office concerned to severe disciplinary action.
L. ACTION OF THE CHIEF STATE/REGIONAL STATE/ PROVINCIAL OR
CITY PROSECUTOR ON THE RECOMMENDATORY RESOLUTION

The Chief State/Regional State/Provincial or City Prosecutor concerned shall


act on all lresolutions within a period of thirty (30) days from receipt thereof,
extendible for another thirty (30) days in cases involving complex issues and/or
heavy workload of the head of office, by either:
1. approving the resolution and directing the transmittal of a copy thereof to the
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

Revised Manual for Prosecutors

101

I
I

a. may file the corresponding Information in court (except the Regional State
Prosecutor); or

I
I
I

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 concef'led to
conduct another preliminary investigation (Sec. 4, par. 3, Rule 112, supra.).

M. REOPENING OF THE PRELIMINARY INVESTIGATION

I
I
I
I
I
I
I
I
I
I
I

After a ca5e 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 State/Regional State/
Provincial or City Prosecutor concerned. The preliminary investigation shall be
reopened subject to the following conditions:

I
I

1. the motion is verified and a c~py 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.

No second motion to reopen shall be entertained.


N. PROMULGATION OFTHE RESOLUTION; MODES OF SERVICE
The resolution shall be promulgated by furnishing the parties or their counsel
a copy thereof by:
1. personal service by process servers, law enforcement or barangay personnel;
or
2. registered mail with return card to the parties

I
I
I

102

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

0. FILING OF THE INFORMATION IN COURT; RULES TO FOLLOW


1. An Information filed in court shall be supported by the affidavits and counter-

affidavits 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.).

ACTION ON A MOTION FOR RECONSIDERATION

A motion for reconsideration filed within fifteen ( 15) days from receipt of the
resolution shall be acted upon within thirty (30) days from receipt of the motion
by the assigned prosecutor. The motion must be verified and accompanied by
proof of service to the opposing party. It must state clearly and distinctly the
grounds relied upon in support of the motion.
Where the Information has already been filed in court, the Chief State/
Provincial/City Prosecutor may not give due course to the motion for reconsideration until there is a showing that the movant has filed a motion with the court
for the suspension of the proceedings, and the court has granted such motion to
~uspend proceedings.

The Office of the Chief State/Provincial/City Prosecutor sha1J r~solve the motion for recon~ideration within the period fixed by the court.
Once the motion for reconsideration has been resolved, a motion should be
filed in court by the Chief State/Provincial/City Prosecutor or his/her authorized
assistant, attaching thereto the resolution on the motion for reconsideration, informing.the court of the action taken thereon and asking it either to proceed with
the case, or withdraw the Information or cause such other measures to be done as
may be warranted.

./""""".

bCTION ON A REINVESTIGATION

Before the filing of an information in court, a motion for reinvestigation of the


case may be filed with the Chief State/Regional State/City/Provincial Prosecutor,
provided that when the case has been appealed to the Secretary of Justice or the
Regional State Prosecutor, such motion may be filed with the said offices.
After the trial court has acquired jurisdiction over the case, any motion for
reinvestigation shall be addressed to the court and not to the public prosecutor or
Secretary of Justice. It is the trial judge who has sole authority to rant or deny
the motion for reinvestigation (Crespo v. ogu , 151 SCRA 469; Velasquez v.
Tuquero, 182 :SCRA 38-8).

Revised Manual for Prosecutors

103

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

A reinvestigation is proper only if the accused's substantial rights would be


impaired (Antiporda, Jr. v. Garchitorena, 321 SCRA 551).
/"" 1. Instances Where a Reinvestigation May be Conducted

Based on newly discovered evidence, reinvestigation may be conducted


in the following instances:

a. Pursuant to a Court Order for Cases Already Filed in Court


Where the court orders the reinvestigation of a case; it cannot at the
same tinie choose the prosecutor who will conduct the reinvestigation
(Abugol v. Tiro, etc., et. Al, L-40552, August 30, 1975). The head of office
shall have discretion to assign the reinvestigation of the case to a specific
prosecutor, and not the judge issuing the ~ourt order.
The reinvestigating prosecutor shall conduct the proceedings within
the period prescribed in the court order. T-he review and approval of
the resolution after reinyestigation shall also be done within the period
prescribed in the order. After promulgation of the resolution, the office
concerned shall immediately take appropriate action to either amend or
withciniw the Information or proceed with die trial, :is the case may be.

b. Pursuant to an Order or Directive from the Regional State Prosecutor


or the Secretary of Justice
The Regional State Prosecutor or Secretary of Justice may order the
reinvestigation of a case upon motion filed by the interes~ed party or upon
appeal or petition for review of the resolution of the Chief State/City/
Provincial Prosecutor.
The head of _offie;e shall assign the reinvestigation of the case to a
prosecutor, who shall assist the mov:fnt in filing a motion to suspend proceedings in court upon receipt of the order/directive for reinvestigation.
Thereafter, he/she shall immediately conduct and resolve the case within
the period prescribed in the order.

104

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Ill. RELEVANT JURISPRUDENCE


1. The prosecutor is not bound by the qualification of the crime but by the evidence
presented during the preliminary investigation (Orq11inaza 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 im~estigation. He must
conduct another preliminary investigation (Luciano v. Mariano, et. al., 40 SCRA
187).
3. A new preliminary investigation is not, however, necessa1y after the amendment
of the Information, where there has been no charn~e in the nature of the crime
charged which is rebellion, and moreover, petitioner, who was already in custody
when the amenc1~d Information .vas fiied, should have asked, but did not, for a
re-investigation of said case within the period of five (5) days from the time he
learned of the amended Information (Lava v. Gonzales, 11 SCRA 650 [1964]).
4. A new preliminary investigation is not called for when the court orders the filing
of the 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
of the 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.

Revised Manual for Prosecutors

105

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Sandiganbayan, 199 SCRA 298; Defensor-Santiago v. Garchitorena, 228 SCRA


214).

9. In Dee vs. Court of Appeals (November 21, 1994, 56 SCAD 684, 238 SCRA 254),
the Supreme Court reiterated its pronouncement in Crespo vs. Mogul (I 5 I 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 Co:E1plaint or Information has been filed in court. The matter should he left
entirely for the determination of the Co'.lrt.

106

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I

TEMPLATES & SAMPLE FORMS


USED IN THE CONDUCT OF THE
PRELIMINARY INVESTIGATIONS

Revised Manual for Prosecutors

107

I
I
I
I
I
I
I
I
I
I
I
I
I
I

NPS Investigation Form No. 01, s. 2008


Republic of the Philippines
Department of Justice
National Prosecution Service

INVESTIGATION DATA FORM

To be accomplished by the Office


DATE RECEIVED:
NPS DOCKET NO.:- - - - - - (stamped and i n i t i a l e d ) : - - - - - - - - - - - Assigned t o : - - - - - - - - Time R e c e i v e d : - - - - - - - - - - - - - - Date Assigned:
-------Receiving Staff: _ _ _ _ _ _ _ _ _ _ _ _ __

To be accomplished by complainantlcounse/Aaw enforcer


(Use back portion if space is not sufficient)
COMPLAINANT/S: Name, Sex, Age &
Address

RESPONDENT/$: Name, Sex, Age &


Address

LAWIS VIOLATED:

WITNESS/ES: Name & Address

DATE & TIME of COMMISSION:

PLACE of COMMISSION:

I
I
I
I

1. Has a similar complaint been filed before any other office? * YES _
NO _
2. Is this complaint in the nature of a counter-charge?* YES
NO
If yes, indicate details below.
YES
NO
3. Is this complaint related to another case before this office?*
If yes, indicate details below.
LS. No.: ---~
Handling Prosecutor: _ _ _ _ _ _ _ _ _ _ __

1G8

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

C E RT I FI 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.

(Signature over printed name)

SUBSCRIBED AND SWORN TO before me this _ _ _ _day of _ _ _ _ _ _ _ _ , 20 _ _ , in

Prosecutor Administering Oath

*1, 2, 3 and Certification need not be accomplished for inquest cases

Revised Manual for Prosecutors

109

I
I
I
I
I
I
I
I
I
I
I
I
I

I
I
I
I
I

NPS Investigation Form No. 02, s. 2008

Republic of the Philippines


Department of Justice
NATIONAL PROSECUTION SERVICE

Complainant,
I.S. No.
For:

~--------~

~~~~----~~--

versus -

Respond'!nt.

x.-------------------------------------------------------------------------------------------------------------------

-----x

RESOLUTION
This refers to the above-entitled complaint for _ _ _ _ filed bv
respondent

_ _ _ _ against

~~--~---

Section 3(b), Rule 112 of the Revised Rules 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]
(__) 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 of pertinent laws to file the
complaint; (Brief explanation)

110

Revis~d

Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I

WHEREFORE, the undersigned investigating prosecutor respectfully recommends that


the above-entitled complaint be DISMISSED.
_ _ _ _ _ _ (place), _ _ _ _ _ (date).

INVESTIGATING PROSECUTOR
APPROVED:

(Head of Office)
Copy Furnished:
All Parties and/or their counsel
Address

Revised Manual for Prosecutors

111

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

NPS INV Form No. 03, s. 2008


Republic of the Philippines
Department of Justice
NATIONAL PROSECUTION SERVICE

Complainant/s,
-versus-

Respondent/s.

x-----------------------------------------x

SUBPOENA TO COMPLAINANT
(optional but not necessary)
TO:

GREETINGS:
Under and by virtue of the authority vested in me by law, you are hereby required to
appear before me at
, on
___________, 200_ at_ a.m./p.m. ir1 the preliminary investigation of the aboveentitled complaint to be held at the time and place-above-specified.
WITNESS MY HAND this _ _ day of ______
} _, 200_ at _ _ _ _ __
Philippines.

INVESTIGATING PROSECUTOR

112

Revfsed Manual for Prosecutors

I
I
I

NPS INV Form No. 04, s. 2008


Republic of the Philippines
Department of Justice

NATIONAL PROSECUTION SERVICE

.I

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Complainant/s,
LS. 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 ~ffi.davits of your witness/es, if any, l:o be
sworn to before me on
, 200_ at __ a.m./p.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.

l
WITNESS MY HAND this
_ _ _ _ _ _ , Philippines.

200

at

INVESTIGATING PROSECUTOR

Revised Manual for Prosecutors

113

I
I
I
I
I
I
I
I
I
I
I
I

NPS INV Form No. 05, s. 2008


Republic of the Philippines
Department of Justice
NATIONAL PROSECUTION SERVICE

Complainant/s,
LS. No.
For:

-versus-

---------~

Respondent/s.
){------------------------------------------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.m./p.m.
You or your representative are/is likewise entitled to ex.amine 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, 8upporting affidavits
and other documents, as well as to ex.ami?e all other evidence submitted by the complainant.
WITNESS MY HAND this
_ _ _ _ _ _ _ __,Philippines.

I
I
I

day of

200

at

INVESTIGATING PROSECUTOR

114

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

NPS INV Form No. 06, s. 2008

Republic of the Philippines


Department of Justice
NATIONAL PROSECUTION SERVICE

Complainant,
LS. No.
For:

- versus -

~~~~~~~~~~

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

Revised Manual for Prosecutors

115

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

NPS INV Form No. 07, s. 2008


Republic of the Philippines
Department of Justice

NATIONAL PROSECUTION SERVICE

Complainant/s,
-versu~-

Respondent/s.

:x------------------------------------------x
SUBPOENA FOR CLARIFICATORY HEARING

TO:

(Complainant/sand Counsel)

TO:

(Respondent/s and Counsel)

TO:

(Witness)

GREETINGS:

l
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 _ _ _ __
, 200_ at __ a.m./p.m., for the
- - - - - - - - - - , on
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

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

NPS INV Form No. 08, s. 2008


Republic of the Philippines
Department of Justice

NATIONAL PROSECUTION SERVICE

Complainant,
LS. No. _ _ _ _ _ _ _ _ _ __
For:

- versus -

Respondent.

x--------------------------------------------x
Complainant,
LS. N o . - - - - - - - - - - For:

- versus -

Respondent.

x---------------------------------------------x
ORDER OF CONSOLIDATION
It appearinp; that the above-entitled complaints -

L__) are charges and counter-charges;


L__) arose from one and the same incident or transaction or series of incidents or transactions;
L__) involve common parties and are founJed on factual and/or legal .issues of the same or
similar character,

the same are hereby ordered conso\idated and th~ joint preliminary investigation thereof shall be handled by
to whom
Asst. City Prosecutor/Asst. Provincial Prosecutor/State Prosecutor
the complaint with the lowest docket number has been raffied/assigneJ or at the discretion of the head of
office. He/she shall terminate the proceedings within the prescribed period of sixty (60) days from receipt
of the assignment.
SO ORDERED.
_ _ _ _ (Place)_ _ __

_ _ _ (Date) _ _ __

CITY/PROVINCIAL/CHIEF STATE PROSECUTOR

Revised Manual for Prosecutors

117

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

NPS INV Form No. 09, s. 2008

(Date)

REGIONAL ORDER NO.


RE

DESIGNATION OF PERSONNEL

In the interest of the service, and pursuant to existing laws, rules and regulations, and by
reason of the inhibition of the Office of the
, which is
hereby approved, ASST. CITY PROSECUTOR I ASST. PROVINCIAL PROSECUTOR I STATE
PROSECUTOR
of the Office of the City/Provincial
Prosecutor of
is hereby designated as Acting City/Provincial Prosecutor
of
to conduct the preliminary investigation in I.S. No. _ _ _ _ __
entitled "
", for
, and, if warranted by
the evidence, to file the corresponding Information/s in court.
T~is

Orde1 shall take effect immediately and shall remain in full force until revoked or

superseded.

REGIONAL STATE PROSECUTOR

Copy furnished:
All Concerned.

I
I
I
I

118

Revised Manual for Prosecutors

I
I
I

Samplt. H.t.solution .

Republic of the Philippines


Department of Justice
NATIONAL PROSECUTION SERVICE

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Complainant,
LS. No. _ _ _ _ _ _ __
For:

- versus -

Respondent.

X-------------------------------------------X

RESOLUTION
This resolves the above-entitled complaint for violation of Sec. 19(b), paragraphs (1) and
(2), of RA 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 (ICPI) Secretariat and voluntarily surrendered Passport
Nos. MM860451 and HH 160901; both issued in Manila and in the name of a.k.a. on 19 April 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 (TECO). In the course thereof, she was asked to get a clearance
from the DFA regarding her change of name.
.
Complainant, thus, accuses respondent for assumption of identity and use of passports
issued under an assumed name, under Sec. I 9(b ), pars. I & 2, of RA 8239. He claims that respondent personally applied for Passport Nos. HHI6090l and MM86045l under the name a.k.a.,
Revised Manual for Prosecutors

119

I
I
I

I
I
I
I
I
I
I
I
I
I
I

I
I
I

I
I

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
, born on December 2, 1972
also revealed the following issuances in the name of
in Cebu City, to wit:
Passport No.
Date & Place of Issue:

BB846749
25 January 1997/Manila

Passport No.
Date & Place ofJ ssue:

VV0166339
30 April 2007/Manila

To substantiate his claim, complainant submitted the application record of Passport Nos.
MM860451 and VV0166339, as well as the photopage avd pertinent pages of Passport Nos.
HH160901 and MM860451 showing the visas and Bureau of Immigration departure and arrival
stamps.
Finally, complainant claims that based on the application records of Passport Nos.
MM86045landVV0166339,itclearlyappearsthatthephotographsofa.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 Pissport Nos. MM860451 and
HH160901. The fact that her photograph appears on beth passports does not mean that she authored any kind of falsity, the truth being that sh~ m~rely paid an old woman "fixer" the amount
of P8,0CJO.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 smne 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 het. Together, they went to the TECO to secure legal capacity tolmarry, 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.
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 of job opportunities
in the country. She argues that even the Supreme Court in the case of P~ople versus Librero, GR
No. 132311, September 28, 2000, recognizes the difficult timt:_s_ we are in and realizes that hopes
for a better future for many Filipinos lie in overseas employment.

120

Revised Manual for Prosecutors

I
I
I
I
I

I
I
I
I
I
I
I
I
I
I

I
I
I
I

We now resolve.
Attached to the record are copies of the application records of Passport No. MM860451
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. MM860451, respondent has assumed the identity of a.k.a in the said passport application, in
violation of Sec. 19(b)(l) of RA 8239.
Sec. 19(b)(l) of RA 8239 penalizes any person who willfuily 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 xx x". Given the above factual backdrop, there is no gains:iying that respondent has
committed a false statement or misrepresentation in the appljcation for Passport No. MM860451
when she stated therein that she is a. l. a, born in Marikina on February 21, 197 8 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
ma/um prohibitum and the mere commission of the prohibited act is punishable. Moreover, being
ma/um prohibitum, good faith is not a valid defense. Secondly, evidence adduced ::;hows that
Passport No. MM860451 is a renewal of Passport No. HE 160901. Thus, it appears that respondent
has assmoed 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 criminal intent. Thirdly, record shows that the respective
applications for Passport Nos. HH160901 and MM86045 i 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 th.it the application record of Passport No. HH160901 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. MM86045 l which is amply supported by the passport application record, probable cause
exists against respondent for violation of Sec. l 9(b)( 1) of RA 8239.
Evidence adduced likewise sufficiently shows that after securing Passport No. MM86045 l
in violation of Sec. l 9(b)( 1) of RA 8239, respondent used the said passport on three (3) separate
instances, to wit: (I) 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. l 9(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 ma/um prohibitum,
Revised Manual for Prosecutors

121

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

the offender is criminally liable for every single violation of the law. In this case, respondent is
liable for three (3) counts of violation of Sec. 19(b)(2) of RA 8239.
While we agree that 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 of laws 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 consid"red, undersigned respectfully recommends that upon


~pproval of this resolution, the attacheci informations for violation of Sec. 19(b) of RA 8239, one
(1) c<Junt under paragraph 1 and three (3) counts under paragraph 2, be filed against respondent

City of Manila, December 7, 2007.

Investigating Prosecutor

RECOMMENDING APPROVAL:

APP R 0 VE D:

Copy Furnished:

DlRECTOR
Passport Division
DEPARTMENT OF FOREIGN AFFAIRS
Roxas Blvd., Pasay City
~~~~~~~~~-

Secretariat, Inter-Agency Committee


Against Passport Irregularities (ICPI)
DEPARTMENT OF FOREIIGN AFFAIRS
Roxas Blvd., Pasay City
Respondent
(Address)
122

Revised Manual fo; Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Sample Information 1
Republic of the Philippines
REGIONAL TRIAL COURT
National Capital Judicial Region
Branch
, Pasay City

People of the Philippines,


Plaintiff,

- Yersus -

_ _ _a.k.a. _ _ _ _ _ __
-At-Large(c/o address),
Accused.

x----------

INFORMATION
The undersig~1ed 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 un April 19, 2004 or thereabout, at the Department of Foreign Affairs,
Roxas Blvd., Pasay City, Metro Manila, and within the Jurisdiction of this 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 of the Philippine Government, as she has in fact secured
the issuance of Passport No. MM860451 for her own use and benefit, in violation of
RA 8239 as well as the rules and regulations prescribed in relation thereto.
CONTRARY TO LAW.
City of Manila for Pasay City, December 7, 2007,

Invest!gating Prosecutor

continued, next page >

'

CRIM. CASE NO.


-------~
(LS. No. _ _ _ _ _ _ _ _ _ _ J
For: Violation of Sec. 19(b)(1)
ofRA8239

Revised Manual for Prosecutors

123

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

CERTIFICATION
I HEREBY CERTIFY that I have conducted a preliminary investigation in this case in
accordance with law; that the complainant was personally examined and that on the basis of the
sworn-statements and other evidence presented, there is reasonable ground to believe that the
crime charged has been committed and that the accused is probably guilty thereof; that the accused
was informed of the complaint and of the evidence presented against her and was given the opportunity t() submit controverting evidence. I further certify that the filing of this Information is
with the prior authority and approval of the Chief State/Provincial/City Prosecutu1~
City of Manila, Philippines, December 7, 2007

Investigating Prosecutoi
SUBSCRIBED AND SWORN to before me en
- - - - - - - - - - - - i n the City of Manila, Philippines.

this

day

of

WITNESSES:

1.

----------~

c/o Secretariat, Inter-Agency Committee


Against Passport Irregularities
Department of Foreign Aff:iirs
Roxas Blvd., Pasay City
2. THE RECORDS CUSTODIAN
(or his duly authorized repr~sentative)
Consular Records Division
Department of Foreign Affairs
Roxas Blvd.~ Pasay City
}
(To bring application records and supporting documents of Passport No. MM86045 l in the
_,.
name of a.k.a. and Passport No. VV0166339 in the name of

_______

3. AND OTHERS
BAIL RECOMMENDED: THIRTY THOUSAND (P30,000.00) PESOS
Enclosures:
Approved Resolution dated December 7, 2007
Complaint-Affidavit of
with attachments
Counter-affidavit of
dated September l l, 2007
124

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Sample Information 2

Republic of the Philippines


REGIONAL TRIAL COURT
National Capital Judicial Region
Branch
, Pasay City

People of the Philippines,


Plaintiff,
CRIM. CASE NO.
~-------(I. S. No. _ _ _ _ _ _ __
)
For: Violation of Sec. 19(b)(2)
ofRA8239

- versus -

a.k.a.
------At-Large-

----~

(c/o address)
Accused.
x---~------------------------------------------x

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", comrn1tted 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 of RA 8239 as well as
the rules and regulations prescribed in relation thereto.
}

CONTRARY TO LAW.
City of Manila for Pasay City, December 7, 2007,

Investigating Prosecutor

continued, next page >

Revised Manual for Prosecutors

125

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

CERTIFICATION

I HEREBY CERTIFY that I have conducted a preliminary investigation in this case in


accordance with law; that the complainant was personally examined and that on the basis of the
sworn-statements and other evidence presented, there is reasonable ground to believe that the
crime charged has been committed and that the accused is probably guilty thereof; that the accused
was informed of the complaint and of the evidence presented againsl: 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/Provir...:;ial/City Prosecutor.
City of Manila, Philippines, December 7, 2007

Investigating Prosecutor
SUBSCRIBED AND SWORN to before me on
_ _ _ _ _ _ _ _ _ _ _ _ in th~ City of Manila, Philippines.

this

day

of

WITNESSES:

1.

------~---

c/o Secretariat, Inter-Agency Committee


Against Passport Irregularities
Department of Foreign Affairs
Roxas Blvd., Pasay City
2. THE RECORDS CUSTODIAN
(or his duly authorized representative)
Consular Records Division
De1~artment of Foreign Affairs
Roxas Blvd., Pasay City
(To bring application records and supporting documents of Passport No. MM860451 in the
____,
name of a.k.a and Passport No. VV0166339 in the name of

_______

3. AND OTHERS

BAIL RECOMMENDED: THIRTY THOUSAND (P30,000.00) PESOS


Enclosures:
Approved Resolution dated December 7, 2007
Complaint-Affidavit of
with attachments
dated September 11, 2007
Counter-affidavit of
126

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Sample Information 3
Republic of the Philippines
REGIONAL TRIAL COURT
National Capital Judicial Region
Branch
, Pasay City

People of the Philippines,


Plaintiff,
CRIM. CASE NO.
(I. S. No
For: Violation of Sec. 19(b)(2)
ofRA8239

~~~~~~~-

- Vfrsus -

~~~~~~~~-~--

a.k.a.
-At-Large(c/o address),

Accused.
x---~-------------------------------x

INFORMATION
The undersigned State/Assistant Provincial/Assistant City hosecutor, hereby accuses _
with violation of Sec. 19(b),
- - -a.k.a.
paragraph 2, of RA 8239, otherwise known as "The Philippine Pas~port Act of 1996", committed
as follows:
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
and there knowingly, unlawfully and criminally use or attempt to use, in her arrival
in, and entry to, the Philippines from Taipei, Passport No. MM86045 l 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, it;i
violation of RA 8239 as well as the rules and regulations prescribed in relation
thereto.
CONTRARY TO LAW.
City of Manila for Pasay City, December 7, 2007.

Investigating Prosecutor
continued, next page >

Revised Manual for Prosecutors

127

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

I
I
I
I

CERTIFICATION
I HEREBY CERTIFY that I have conducted a preliminary investigation in this case in
accordance with law; that the complainant was personally examined and that on the basis of the
sworn-statements and other evidence presented, there is reasonable ground to believe that the
crime charged has been committed and that the accused is probably guilty thereof; that the accused
was informed of the complaint and of the evidence presented against her and was given the opportunity to submit controverting evidence. I further certify t!:at the filing of this Information is
with the prior authority and approval of the Chief State/Provincial/City Prosecutor.
City of Manila, Philippines, December 7, 2007
Investigating Prc.1ecutor
SUBSCRIBED AND SWORN to before me on
- - - - - - - - - - - - i n the City of Manila, Philippines.

this

day

of

WITNESSES:
1.
c/o Secretariat, Inter-Agency Committee

------------

Against Passport Irregularities


Department of Foreign Affairs
Roxas Blvd., Pasay City
2~

THE RECORDS CUSTODIAN


(or his duly authorized representative)
Consular Records Division
Department of Foreign Affairs
Roxas Blvd., Pas~y City
(To bring.application records and supporting documents of Passport No. MMl86045 l in the
name of a.k.a. and Passport No. VVO 166339 in the name of _ _ _ _ _ __,
3. AND OTHERS
BAIL RECOMMENDED: THIRTY THOUSAND (P30,000.00) PESOS
Enclosures:
Approved Resolution dated December 7, 2007
Complaint-Affidavit of
with attachments
..
Counter-affidavit of
dated September 11, 2007

128

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Sample Information 4

Republic of the Philippines


REGIONAL TRIAL COURT
National Capital Judicial Region
Branch
, Makati City

People of the Philippines,


Plaintiff,
CRIM. CASE NO. - - - - - (1.S. No.
)
For: Violation of Se~. 19(b)(2)
ofRA8239

- versus -

_____a.k.a. _ _ _ _ __
-At-Large(c/o address),
Accused.

x----------------

x
INFORMATION

The undersigned State/Assistant Provincial/Assistant City Prosecutor, hereby accuses _


with violation of Sec. l 9(b ),
- - -a.k.a.
paragraph 2, of RA 8239, otherwise known as "The Philippine Passport Act of 1996", committed
as follows:
That on October 7, 2004, or thereabout, in Makati City, Met:o 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
continued. next page >

Revised Manual for Prosecutors

129

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

CERTIFICATION
I HEREBY CERTIFY that I have conducted a preliminary investigation in this case in
accordance with law; that the complainant was personally examined and that on the basis of the
sworn-statements and other evidence presented, there is reasonable ground to believe that the
crime_ charged has been committed and that the accused is probably guilty thereof; that the accused
was informed of the complaint and of the evidence presented against her and was given the 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/ProvinciaVCity Prosecutor.
City of Manila, Philippines, December 7, 2007

Investigating Prosecutor
SUBSCRIBED AND SWORN to before me on
- - - - - - - - - - - - i n the City of Manila, Philippines.

this

day

of

WITNESSES:
1.
c/o Secretariat, Inter-Agency Committee
Against Passport Irregularities
Department of Foreign Affairs
Roxas Blvd., Pasay City
---~-~-~

2. THE RECORDS CUSTODIAN


(or his duly authorized representative)
Consular Records Division
Department of Foreign Affairs
Roxru} Blvd, Pasay City
(To bring application records and supporting documents of Passport No. MM860451 in the
name of a.k.a. and Passport No. VV0166339 in the name of
-~~-~~~~~

3. AND OTHERS

BAIL RECOMMENDED: THIRTY THOUSAND (P30,000.00) PESOS


Enclosures:
Approved Resolution dated December 7, 2007
Complaint-Affidavit of
with attachments
Counter-affidavit of
dated September 11, 2007
130

Revis.ed Mar.ual for P;osecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

I
I
I
I

NPS SAMPLE FORMAT "A", s. 2008


Republic of the Philippines
Department of Justice
NATIONAL PROSECUTION SERVICE

Complainant,
LS. No.
--------For:

- versus -

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

ORDER
This treats of the motion to suspend proceedings filed Ly respondent based on the existence
of a prejudicial question.
In support of the instant motion, respondent claims ....

Complainant counters that .....

The issues having been joined, we now resolve.

(Brief discussion)
Considering the pender.cy of a civil case which involves facts intimately related to those
upon which the instant complaint for
is based, and that in the resolution of the 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 of this preliminary investigation.
Accordingly, the preliminary investigation m the above-entitled case . is hereby
SUSPENDED.
SO ORDERED.
_ _ _ _ _ _, Date.
continued, next page >

Revised Manual for Prosecutors

131

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Investigating Prosecutor

RECOMMENDING APPROVAL:

APPROVED:

CITY/PROVINCIAL/CHIEF STATE PROSECUTOR

132

Revis.ed Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

NPS SAMPLE FORMAT "B", s. 2008

CERTIFICATION
I HEREBY CERTIFY that I have personally examined the aftiant and I am fully convinced
that that he/she has voluntarily executed his affidavit/sworn-statement and understood.the contents
thereof.

Inve!'ltigath1g Prosecutor

I
I
I

Revised Manual for Prosecutors

133

I
I
I
I
I
I
I
I

I
I
I
I
I
I
I
I
I
I
I

FLOWCHART 1: PRELIMINARY INVESTIGATION

t=:

::>
0
...I

UJ

w
a:

'i CJ
oz
!c(z

'

oQ
~t;
a: w
c ::>
;jO

ti-

CJ ~
- "C
a:s
....
UJO

w C1>

-->
zo

>O

a: co
<(

z:C
:E -~
1w

a:

CL

a:
w
0

z
0..,
w

;.J

a.

w
a:

IZUJ

w a:
0 ll'
z Ioz
Cl. ::>
cno
~o

:.:::
~Q

I-

<z
zw
WO
oz
a..o
m a..
::> UJ

en ::>
i-

UJ

-...a

::E 0

"'UJ

-w
oa:

UJW

a:

::>
0

::>
0

CJ

CJ
0

a:

a:

"'134

i<C !::?(

...IQ
a.11.

::E
0

11.

oc

Revised Manual for Prosecutors

--------------------:::0
Ill

'Tl

Ill

t"-

<

Ill
Q.

s::

("')

PRELIMINARY INVESTIGATION
(within so to 90 days)

:J

c:

=
>

....,

"'O

.....

IYEsl

Ill
I"\

c:
....

0
.....

Ill

1(
~

1(
RESOLUTION

'

CAUSE

MR/APPEAL/
PETITION FOR
REVIEW

I'

"'
DISMISSAL OF
COMPLAINT

#
WIO PROBABLE
CAUSE

'

RECOMMEND
DISMISSAL OF
COMPLAINT

I YES

ACTiON BY
CP/PP/CSP

~ -....

I'
I FILING OF INFO

I'

'

IORSP I

-t"-

>
~

OSEC

-z
-<

00
~

C"1

'

IN COURT

....

""O

'

RECOMMEND . . ACTION BY
FILING OF
p
INFORMATION
CP/PP/CS

W/PROBABLE

Ill

UI

..

FILING OF INFO
IN COURT

.....

MR/A!lPEALJ
PETITION FOR
REVIEW

11'

'

ORSP

IOSEC I

-z~
0

------------------_.
w

t"'i
0

Cl\

-1

PRELIMINARY INVESTIGATION
(within 60 to 90 days)

-------------

(j

=
>

..

(jJ

----. 1f .

SUSTAIN

I I

PURSUE FILING
OF INFO IN
COURT

FOR FILING
OF INFO IN
COURT

1f

BAIL

ARRAIGNMENT

TRIAL

lr--R-EVE-RS__,E

DISMISSAL OF
COMPLAINT

<

rt>
0.

r.

3:
Cl>

'

)loom(

<

I ....... IPETITION FOR CERTIORARI (COURT OF APPEALS)

\J).

,- YES
FOR
1
DISMISSAL
OF

DISMISSAL OF
COMPLAINT

...,,

If
#
#

,__I-N-o--.I

....
-0
....
0
VI
rt>

I"\

.-+

0
....
VI

--

------A---~---

., ,_____ ---

PURSUE FILING
OF INFO IN
COURT

~
0
z
)loom(

I ...... IPETITION FOR CERTIORARI (COURT OF APPEALS)

COMPLAINT'--~ ..

::l

)loom(

)loom(

VI

rt>

)loom(

MR/APPEAL
PETITION
FOR REVIEW

::0

>
~

-----~

11

B
BAIL

______

..._

ARRAIGNMENT

__.

TRIAL

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

PART V. ARRAIGNMENT AND PLEA


I.

GENERAL RULES
A. PRINCIPLES
1. Arraignment, being a mandatory requirement, necessitates the presen~e 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 accu~ed in court.
B.CONCEPTS
1. Arraignment - is the fonnal 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 th~ charge and to give him an opportunity to
pi~ad (14 Am. Jur., p.939. G. V Jacinto, Criminal Procedure).
2. 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 or a specific plea (Osborn s Concise Law Dictionary, 151h
Ed. John Burke, p. 254).
II.

PROCEDURE
A. DUTIES OF THE TRIAL PROSECUTOR
i
1. Before the Arraignment of the Accused
The trial prosecutor shall examine the Information vis-a-vis the resolution of the
investigating prosecutor in order to make the necessary corrections or revisions and
to ensure that the Information is sufficient in form and substance.
He shall ensure that the private offended party appears at the arraignment for
purposes of plea bargaining, determination of civil liability and other matters requiring his presence (Sec. I(/), Rule 116, Revised Rules on criminal procedure).

Republic Act No. 4908, which requires that in criminal cases where the complainant is about to depart from the Philippines with no definite date ofretum,

Revised Manual for Prosecutors

137

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

the accused should be arraigned without delay and his trial should commence
within three (3) days from arraignment and that no postponement of the initial
hearing should be granted except on the ground of illness on the part of the
accused or other grounds beyond the control of the court.

2. During the Arraignment


lturing the arraignment, the prosecutor seeks to give the accused the opportunity
at the first instance to know why a case has been filed against him. It is the solemn
duty of the trial prosecutor to be present during the arraignment. He must be atten~e at all times during the arraignment so that he can ~nsure, among others, thhlthe
requirements of a valid arraignment are duly observed, the identity of the accused is
ascertained and the Information being read to the accused is the same Information as
filed.

3.

Aft~r

the Arraignment

The trial prosecutor shall prepare his witnesses for tdal. Government witnesses,
e.g. medico-legal officers, chemist:::, forensic experts, examiners etc. should, as
much as practicable, be presented in accordance with the logical and chronological
sequence of thie technical aspects to be proved.

B. EFFECT OF THE FILING OF A PETITION FOR REVIEW


When an aggrieved party manifests in ccurt that he has a pending petition for review
with the Department of Justice and moves for a deferment/~ms ension of the arrai nment
pending resolution of his p~tition, the' trial prosecutor ma confo thereto once proof of
said petition has been presented by the petitioner to his satisfaction.

-=--==-

C. APPLICABLE RULES IN CASES WHERE THE ACCUSED PLEADS GUILTY


TO A LESSER OFFENSE
1. The trial prosecutor shall inimediately move for the<@spensioi;Dof the proceedings
l.vhenever the accused manifests his intention in court to plead guilty to a lesser offense, when applicable. This will enable the trial prosecutor to confer with the private
complainant and evaluate the implications of the offer of the plea bargain.
2. The trial prosecutor may dispense with the presentation of evidence when the accused
pleads guilty to a lesser offense which is not a capital offense~ 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 mo tu 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 Phpl2,000.00.

138

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

4. When the penalty imposable for the offense charged is prision mayor (at least six
[6] years and one (1] day or higher) or a fine exceeding Phpl2,000.00, 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.
5. In an cases, the penalty for the lesser offense to which the accused may be allowed to
piead guilty spali not be more than two (2) degrees lower than the imposable penalty
fo!" the crime charged, notwithstanding the presence of mitigating circumstances.
\\~Th.e l~ser offense shall also be one that i nece
re ated o the offens.:__ charged srv~
\' or the offense must belon to the ame clas die
der the Revised Penal
Code or the relevant spec_ial la~~ (DOJ Circular No. 55, dated 31July1990).
D. WHEN A PLEA OF GUILTY TO A LESSER OFFENSE IS NOT ALLOWED
Howeve:, the plea of guilty to a lesser offense may net be allowed where it so ~
travenes logic and common sense as to be unconscionable, thereby resulting in injustice. Thus, where the offense charged is homicide, a plea of guilty ~o a lesser offense
of frustrated or attempted homicide may not be allowed, since the fact oi de:i.th cannot
be reconciled with the plea of guilty to frustrated or attempteci homicide. Homicide
necessarily produces death, while frustrated or attempted homicide does not (Amatan v.
Aujero, 248 SCRA 511 [1995]).
E. WHEN ACCUSED PLEADS GUILTY TO A CAPITAL OFFENSE
When the accused pleads guilty to a capital offense, the trial prosecutor must present evidence to prove the guilt of the ac_cused and the precise degree of his culpability,
notwithstanding the waiver made by the accused during the pre-trial conference. This is
mandatory.
III. 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 of the 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 s~ension shall not exceed sixty ((jQ) days counted from the fil~g ()f the
petiti~n with the r~ing 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/aw v. Judge Eduardo Peralta, Jr., G. R. No. 164953, February 13, 2006).

Revised Manual for Prosecutors

139

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

PART VI. PRE-TRIAL


I.

CONCEPT
.A pre-trial is a process whereby the accused and the prosecutors in a criminal case
work out, usually at the arraignment stage, a naturally satisfactory disposition of a
case subject to court approval in order to expedite the trial of the case (Blacks Law
Dictionary, 51h Ed., 1979, p.1037).
The conduct of a pre-trial conference is mandato!)' 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,
-less a shorter period is provided for in special l~s or .irculars of the :;upreme
Court, order a pre-tnal 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.).

II.

SUBJECT MATTERS OF A PRE-TRIAI. CONFERENCE


The pre-trial conference shall consider the foEowing:

A. PLEA BARGAINING;
This is a process where the accu:;ed 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, 511r Ed.
1979, p. 1037).

Plea bargaining is not allowed under the R@gerous Q_mg$..1kt where the
imposable penalty for the offense charged is reclusion perpetua to death.

B. STIPULATION OF FACTS;
This refers to the agreement of the parties on some facts admitted, some facts
covered by judicial notice (Sec. 1, Rule 129, supra.), judicial admissions (Sec. 2,
Rule 129, supra.), or on matters not otherwise disputed by them.
In cases requiring the presentation of govepm_!ent witnesses or evidence,
the trial prosecutor should exert every effort to secure the admissibility of certain documentary evidence, e.g., medical or death certificate, autopsy report,

140

Revised Manual for Prosecutors

I
1

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

I
I
I
I

forensic chemistry report, ballistic report, Philippine Overseas and Employment


Administration (POEA) certification, a certification from the Firearm and
Explosive Unit (FEU) of the PNP that accused was not a licensee of a firearm of
any kind or caliber, and the like, for expediency of the court proceedings.
The list of witnesses should be qualified by the following statement: "that
other witnesses may be presented in the course of the trial."
~-Whenever necessary, the counter-affidavit of the accused which was submitted during the preliminary investigation rn1y be resorted to or availed of to
demonstrate or establish the defense's theory:
C. MARKING FOR IDENTIFICATION OF
PARTIES;

EVIDENCE

OF

THE

D. WAIVER OF OBJECTIONS TO THE ADMISSIBILITY OF EVIDENCE;


E. MODIFICATION OF THE ORDER OF TRIAL if the accused adrr.its
the charge but interposes a lawful defense; and
F. SUCH OTHER MATTERS as will promote a fair and expeditious Ji.al of
the criminal and civil aspects of the case (Sec. 1, R'Ule 118, supra.).
III. NON-APPEARANCE AT THE PRE-TRIAL CONFERENCE
The trial prosecutor shall make sure that he appears at the pre-trial conference to
avoid being sanctioned by the court. (Sec. 3, Rule 118, supra.)
IV.

DUTIES OF THE PROSECUTOR AT PRE-TRIAL CONFERENCES


A. BEFORE THE PRE-TRIAL CONFERENCE
The prosecutor should know every [~ct_Cl!\4 detail of the case. This can be accomplished by interviewi_~g the complainant and other witnesses and after a thor~xamination of the available documentary and othe~_p_!iy~~E~~vid~_nce.
The prosecutor should also place importance on the testimony of the expert
witness. The knowledge that the prosecutor will gain from said witness will help
him determine the procedures undertaken in the examination of a subject or thing;
the scientific or technical terms applied, and the reason/s in arriving at a certain
conclusion.

Revised Manual for Prosecutors

141

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

B. DURING THE PRE-TRIAL PROCESS


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.

C. AFTER THE PRE-TRIAL CONFERENCE


The trial prosecutor shall e!1sure that all agreements or admis.s.i.Q!l.s made or
entered during the pre-trial conference are reduced in writing and ~gned by the
accused and counsel and approved by the court.

V.

RELEVANT JURISPRUDENCE
1. The omission of the signature of the accused and his counsel, as mandatorily
required by the Rules, rendef3 the Stipulation of Facts inadmissible in evidence
(Fule v. Court ofAppeals, 162 SCRA 446).
2. A proffer of evidence on the basis of the evidence exhibited by the accused during
the pre-trial is not sufficient. His acquittal on the basts thereof is a nullity for want
of due pro-:ess (People v. Judge Santiago, 174 SCRA J.d 3).

142

Revised Manual for Prosecutors

.I

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

PART VII. BAIL


I.

CONCEPTS
A. PURPOSE OF BAIL
The purpose of bail is to entitle the accused to provisional liberty pending trial
(Bravo, Jr. v. Borja, 134 SCRA 466 [1985]).

B. NATURE OF THE RIGHT TO BAIL


The right tc bail is guaranteed by the Constitution. It is the duty of the prosecutor to re(;ommend such amount ofhc:.il to the courts ofjustice as, in his opinion,
would er1sure the appearance of an accused person when so required by the court.
(DOJ Circular No. 6, series of 198!)

C. BASIS OF BAIL
1. The basis for determining bail is the p~nalty prescribed by_~~ for the offtnse
charged and not the penalty actually imposed for the accused in view of the
attendant circumstances. (Bravo v. Borja, supra.}
2. To allow bail on the basis of the penalty actually imposed would require a
consideration not only of the evidence of the 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 1bout ready
to render a decision in the case. Such procedure woukl d~feat the purpose
of bail, which is to entitle the accused to provisional liberty pending trial.
(Ibid.)

D. WHEN BAIL IS NOT REQUIRED


Bail shall not be required of a person charged with violation of a municipal
or city ordinance, a light felony and/or a criminal offense the prescribed Eenalty
for which is ~t higher than six (6) months imprisonment and/or a fine of Two
thousand pesos (P2,000.00), or both, where said person has established to the
satisfaction of the court or any other appropriate authority hearing his case that he
is unable to post the required cash or bail bond, except in the following cases:
l . when he is caught committing the offense in flagrante;
2. when he confesses to the commission of the offense unless the confession is
later repudiated by him in a sworn statement or in open court as having been
extracted through force or intimidation;

Revised Manual for Prosecutors

143

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

3. when he is found to have previously escaped from legal confinement, evaded


sentence, or jumped bail;
4. when he is found to have previously violated the provisions of Sec. 2 of RA
6036;
5. when he is found to be a recidivist or a habitual delinquent or has been 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;
znd
7. when the accused has previously been pardoned by the municipal or city
mayor for violations of municipal or city ordinance for at least twl. times.
(Sec. 1, R. A. No. 6036)
No bail shall also be required wheIJ. the !aw or the Rules issued by the Supreme
Court so provide.
When a person has b~er. in c11sto<ly 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 witho11t 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.

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 of the court. (Sec. 16,
Rule 114, supra.)

II.

DUTIES OF THE PROSECUTOR


A. WHEN BAIL IS A MATTER OF RIGHT
When bail is a matter of right, it is the duty of the prosecutor to recommend
such amount of bail to the courts of justice as, in his opinion, would ensure the
appearance of an accused person when so required by the court.

144

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

The following are the instances when bail is a matter of right:


1. Before or after conviction by the Metropolitan Trial Court, Municipal Trial
Court, Municipal Trial Court in Cities or Municipal Circuit Trial Court; and
2. Before conviction by the Regional Trial Court of an offense not punishable by
death, reclusion perpetua or life imprisonment. (Sec. 4, Rule 114, supra.)

B. WHEN BAIL IS A MATTER OF DISCRETION


1. Before conviction, bail i~ a matter of discretion when the offense charged is
punishable by death, reclusion perpetua or life imprisonment.
2. Upon conviction by the Regional Trial Court of an offense not punishable by
death, reclusion perpetua or life imprisonment, admission to bail is di3cretionary. The Regional Trial Court may grant or deny bail depending on the
existence or non-existence of any of !be circumstances below:
a. That he is a recidivist, quasi-recidivist or habitual delinquent or has committed the crime aggravai:ed by the circumstance of reiteracion;
b. That he has previously escaped from legal confinement, evaded ~entence
or violated the conditions of his bail without valid justification;
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. If upon conviction, the Regional Trial Court imposes the penalty of imprisonment
in excess of six (6) years, but not exqeeding twenty (20) years, the accused shall
be denied bail or his bail shall be cancelled, upon a showing by the prosecution,
with notice to the accused~ of any of the foregoing circumstances.
4. If none 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.
129670, Feb. 1, 2000)

Revised Manual for Prosecutors

145

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

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 of the accused
is strong. Denial of such notice deprives the State of its right to be heard, thereby
making the bail proceedings void.

D. RIGHT TO BAIL IN INQUEST CASES


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.

E. GUIDELINES IN RECOMMENDING BAIL


1. When the bail is a matte: of right, the prosecutor shall use the DOJ Bail Bond
"Guide as his primary guide in recommending bail.
2. However, where justice demands reduction or increase of the amount of bail
as indicated in the Bail Bond G:iide, the trial prosecutor shall apply the criteria
set forth in Sub-title F hereof; provided, however, that any recommendation
by the trial prosecutor for the reduction or increase of the amount of bail
shall be with the prior approval of the Chief Stzte/Provincial/City Prosecutor
concerned.
3. The prosecutor should be able to refute, among others, the following factors
during the hearing on the application for bail:

nature and circumstances of the crime;

b. character and reputation of the accused;


c. the weight of the evidence against him;
d. the probability of the accused appearing at the trial,
e. whether or not the accused is a fugitive from justice
f.

whether or not the accused is under bond in other cases. (People v.


Dacudao, 170 SCRA 489).

F. CRITERIA IN RECOMMENDING THE AMOUNT OF BAIL


In recommending the amount of bail to be graQ.ted by the court, the prosecutor
shall take into consideration the following standards and cnteria:

146

Revised Manual for Pro:;ecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

1. financial ability of the respondent/accused to post bail

2. nature and circumstances of the offense;


3. penalty for the offense charged;
4. age, state of health, character and reputation of the respondent/accused under
detention;
5. weight of the evidence against the respondent/accused under detention;
6. forfeiture of other bonds and pendency of other cases wherein the respondent/
accused under detention is under bond;
7. ihe fact that respondent/accused under detention was a fugitive from justice
when apprehended; and
8. other factors affecting the probability of the accused appearing at the trial.
(Sec. 6, Rule 114, Revised Rules on Criminal Procedure; DOJ Circular No. 4,
series of 1996)
G. RULES IN COMPUTING THE BAIL TO BE RECOMMENDED
To achieve uniformity in the amount of bail to be recommended, the following rules shall be observed:
1. Where the penalty is reclusio.'l perpetua, life imprisonment, reclusion perpetua to death or death, bail is not a matter of right; hence, 1t shall not be
recommended.
2. Where b:iil is a matter of right and the imposable penalty is imprisonment &.nd/
or fine, the bail shall be computed on the basis of the penalty of imprisonment
applying the following rules:
a. where the penalty is reclusion temporal (regardless of period) to reclusion perpetua, bail shall be computed based on the maximum of reclusion
temporal.
b. where the imposable penalty is correccional or afflictive, bail shall be
based on the maximum of the penalty, multiplied by Php2,000.00. A fraction of a year shall be rounded-off to one year.
c. For crimes covered by the Rules on Summary Procedure and Republic
Act No. 6036, bail is not required except when respondent/accused is
under arrest, in which case, bail shall be computed in accordance with this
guideline.
Revised Manual for Prosecutors

147

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

d. For crimes of reckless imprudence resulting in homicide arising from


violation of the Land Transportation and Traffic Code, bail shall be
Php30,000.00 per deceased person.
e. For violation of Batas Pambansa Blg. 22, bail shall be fifty per cent
(50%) of the amount of checks but should not be less than Php2,000.00
nor more than Php30,000.00.
3. Where the imposable penalty is only a fine, bail shall be computed as follows:
a. fine not exceeding Php2,000.00, bail is not required.
b. Fine of more than Php2,000.00, bail shall be 50% of the fine but should
not exceed Php30,000.00.
c. In case of reckless imprudence resulting to damage to property, bail
shall be three-eights (3/8) of the value of the damage but not exceeding Php30,000.00 except when covered by the Rules on Summary
Procedure.
4. Bail based on the maxirmau pf':nalty, multiplied by Phpl0,000.00 shall be
applied to the following offenses under tte following laws:
a. Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of2002);
b. Republic Act No. 6S39 (Anti-CamappingAct), as amended by RA 7659;
c. Republic Act No. 7659 (for other crimes covered by it);
d. Presidential Decree No. 1866 (Illegal Possession of Firearms, Ammunition
or Explosives), as amended by RA 8294;
e. Republic Act No. 193 7 (Tariff and Customs Code), as amended; Jr
f.

Rebellion, insurrection or coup d'etat as amended by Republic Act No.


6968.

g. Republic Act No. 7610, as amended (Special Protection of Children


Against Child Abuse, Exploitation and Discrimination Act)
h. Republic Act No. 9208 (Anti-Trafficking in Persons Act of 2003)

148

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

H. HEARING ON PETITION FOR BAIL IS REQUIRED IN NON-BAILABLE


OFFENSES
The prosecutor shall ensure that a hearing on the petition for bail is conducted
by the judge as it is absolutely indispensable for the latter to properly determine
whether the prosecution's evidence is weak or strong on the issue of whether or
not to grant bail to an accused charged with a heinous crime where the imposable
penalty is death, reclusion perpetua or life imprisonment. (Tabao v. Espina, 257
SCRA 298 {1996}). He must therefore be prepared for such a hearing.
I. EXCEPTION TO THE RULE ON NON-BAILABLE OFFENSES

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 sin<..:e
minority is a special mitigating circumstance that allows the imposition of the
penalty one degree lower than that prescribc.d by law (Bravo v. Borja, 134 SCRA
466 [1985]), aside from the fact that RA9344, otherwise kno'vn as the Juvenile
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 bail.
.J. RIGHT OF THE PROSECUTION TO PRESENT ALL EVIDENCE

DURING THE BAIL HEARING


Whether the motion for bail of a defendant who is in custody for an offense
nunishable by reclusion perpetua, life imprisonment or death be resolved in a
summary proceeding or in the course of a regular trial, the pwsecution 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 [1968]).

K. EFFECT OF A DENIAL OF THE OPPORTUNITY TO PRESENT


EVIDENCE FOR PURPOSES OF THE PETITION FOR BAIL
l
Should the prosecution be denied of the opportunity to present all the evidence
it may desire to introduce, there would be a violation of procedural due process
and the order of the court granting bail should be considered void.
L. PETITION FOR BAIL IN CONTINUOUS TRIAL
In case a petition for bail is filed by the accused and the court orders a 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

Revised Manual for Prosecutors

149

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

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. CANCELLATION OF THE BAIL 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
JID>Of Qf.his~.
The bail bond shall be deemed automatically cancele<i. upon acquittal of the
accused or dismissal of the case or execution of the final judgment of conviction.
In all instances, the cancellation shall be without prejudice to any liability on
the bond.

III. OTHER MATTERS


A. RELEASE ON RECOGNIZANCE; GUIDELINES
1. Whenever allowed pursuant to law or the Rules of Court, the court may release
a person in custody on his own recognizance or that of a responsible person.
2. A hearing on the petition for the custody of the accused for purposes of his/
her release OTl recognizance is mandatory (Loyola v. Gaba, Jr., AM No. RTJ00-15-24, Jan. 26, 2000)
3. The prosecutor should see to it that hearing is conducted to ensure that the
requirements of Sec. 1 and 2 of R. A. No. 6036 are complied with. (Ibid.)

B. REQUIREMENTS FOR THE GRANT OF RECOGNIZANCE UNDER RA


NO. 6036
,,.

l The trial prosecutor should, during the hearing on recognizance, see to it


that:
1. The accused comes within the coverage of Sec. 1 of RA 6036 and RA 9344
(Juvenile Justice and Welfare Act);
2. The accused shall \ sign, in the presence of two (2) witnesses of good standing
in the community, a sworn statement binding himself, pending final d e c i sion of his case, to report to the Clerk of Court hearing his case peiiodically
every two (2) weeks;
.

150

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

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:
a. such person under whose custody the accused is placed, shall execute his
own affidavit stating his willingness to accept custody of the accused;
and
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.
IY.

RELEVANT JURISPRUDENCE

1. The Court should not even allow a motion for bail to be set for hearing unless it
has acquirediurisdiction over the person of the accuse_Q_~Q,-.th~--~~~~--h,yjt~~U!~g
in Court. (Dinapol v. Baldonado, 225 SCRA 110)
2. In order that a person ca::11 invoke his right to bail, it is not necessary that he
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 of the Bill of Rights, and this right he retains unless and until
he is chargec:l with a capital offense and evidence of his guilt is strong.( Herras
Teehankee v. Rovira, 75 Phil. 634)

3. Where the accused was charged for murder without the benefit of a preliminary
investigation anci trial had already began over his objections, the accused remains
~ntitled 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, Jr., 322 SCRA
559)
4. If the prosecution is denied the opportunity to present, within a reasonable time,
all the evidence that it may want to introduce before the court may resolve the
application for bail, there would be a denial of due process, as a consequence of
which, the court's order in respect of the motion or petition is void. (Carpio, et.
al. v. Maglalang, etc., et al. 196 SCRA 41).

75. There is no need of bai n cases covered by the Rules on Summary Pr?~ed~~
(Martinez vs. aguio, 94 SCRA 287 {2002]).

Revised Manual for Prosecutors

151

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

PART VIII. ARREST


I.

REMEDY OF THE PROSECUTOR WHEN NO WARRANT OF ARREST


WA.S ISSUED BY THE JUDGE

_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. (Samu/de v. Salvani, Jr., 165 SCRA 724
[1988])
II.

REQUEST FOR A COPY OF THE RETURN

If a warrant of arrest has been issued, the prosecutor may request the warrant
officer that he be furnished with the officer's return relative thereto. The prosec'tItor shall, as far as practicable, coordinate with the witnesses from time to time to
ascertain the whereabouts of the accused pending the latter's arrest.
III. RELEVANT JURISPRUDENCE

1. The grounds of suspicion are r~asor:abI~ when, in the absence of actual belief
of the arresting officers, the suspicion that the pP.rson to be arrested is probably
guilty of committing the offense, is based on actual fact5, i. e. supported by circumstances sufficiently strong in themselves to create the probable cau5e of guilt
of the person to be arrested. A reasonable suspicion therefore must be founded on
probable cause, coupled "witil good faith on the part of the peace officers making
the arrest." (People v. Doria, 301 SCRA 668)
2. An arrest signifies restraint on person, depriving one of his own will and liberty,
binding him to become obedient to the will of the law. (Larranaga v. Court of
Appeals, 287 SCRA 58~)
.. /

3. A letter-invitation is equivalent to arrest. Where the invitation comes froml


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}.
4. A police officer is not justified in using unnecessary force in effecting arrest or
in treating with wanton violence the arrested person or in resorting to dangerous
means when the arrest could be effected otherwise. (Galang v. People, G. R. No.
128536, January 31, 2000)
A

'

5. A warrant of arrest does not become stale or functus oficio unlike a search warrant
which is valid only for ten days. A warrant o(arrest remains valid until arrest is
effected or the warrant lifted. (Managan v. CF!, 189 SCRA 217)
152

Revis.ed Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

.PART IX. TRIAL


I.

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 <ind
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 postponemer.t of the trial or other proceedings of a criminal case
shall be initiated or caused by the trial prosecutor except in instances where the
ostponement 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.

II.

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 of this
Manual).

B. ORDER OF PRESENTATION OF WITNESSES


The order in the presentation of witnesses will be left to the discretion of
the trial prosecutor. However, the prosecutor should take into consideration the
order of events as established by the evidence of the prosecution.

Revised Manual for Prosecutors

153

I
I
I
I
I
I
I
I
I
I
I
I
I
I

Witnesses who will testify for the first time shall be afforded the opportunity
to o~~~!\T~ -~:r:_imina_l R_~oc~eding_~j!l court to help them overcome their anxiety,
excitement and tension.
As far as practicable, crucial witnesses shall be summoned by the trial pros~ 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
The trial prosecutor shall safely keep his documentary and other physical
evidence and prepare a@ereof in the order they have bPen marked as exhibits, identifying each by letter or number, describing it briefly, and stating its
specific purpose or purposes.

D. DEFE~SE EVII>ENCE
1. Before reception of evidence for the defense stans, 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 witnes5es, their
moral character, background, reascns for testifying and relationship with
the accused, among other things, to enable him to have a clear view of the
defense of the accused.

E. DISCHARGE OF ACCUSED TO BE STATE WITNESS


When two or more persons are jointly charged with the commission of any
offense, the trial prosecutor, before resting his case, shall move for the discharge
of one or more of the accused with their consent so that they may be witnesses
for the State. The motion shall indicate that:
l
1. There is absolute necessity for the testimony of the 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 of the
offense committed, except the testimony of said accused, (Sec. 17[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.106 Phil.188).

,
I

3. The testimony of said accused can be substa~tially eorroborated in material


points .

154

Revis.ed Manual for Prosecutors

I
I
I
I
I
I
I
I

I
I
I
I
I
I
I
I

4. Said accused does not appear to be the most guilty (Lugtu v. Court of
Appeals, 183 SCRA 388).
5. Said accused has not, at any time been convicted of any offense involving
moral turpitude.
F. ADMISSION TO THE WITNESS PROTECTION PROGRAM OF AN

ACCUSED WHO HAS BEEN DISCHARGED


An accused who is discharged from an information or criminal complaint in
order that he may be a state witness as provided ia the preceding s~ction may,
upon his petition, be admitted to the 'Vitness Protection Program under RA
6981, otherwise known as "The Witness Protection, Security and Benefit Act"
if he complies with the other requirements of said Act.

G. OTHER PERSONS WHO MAYAVAlLOFTHE WITNESS PROTECTION


PROGRAM
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 thP.
commission of a crime ana has testified or is testifying or is about to testify
before any judicial or quasi-judicial body, or before any investigating authority, Provided, that:

the offense in which his testimony will be used is a grave felony as


defined under the Revised Penal Code or its equivalent under special
laws;

his testil!lony can be substantially corroborated on its material points;

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

he is not a law enforcement officer, even if he would be testifying against


other law enforcement officers. In such a case, only the immediate
members of his family may avail themselves of the protection provided
for under the Act.

I
I
I

Revised Manual for Prosecutors

155

I
I
I
I
I
I
I
I
I
I

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:
the offense in which his testimony will be used is a grave felony as
defined under the Revised Penal Code or its equivalent under special
laws;

there is absolute necessity for his testimony;

there is no other direct evidence available for the proper prosecution of


th\! offense committed;

his testimony can be substantially corroborated on its material points;

he does not appear to be the most guilty; and

he has not at any time been convicted of any crime involving moral
turpitude.

'I: H. MOTIONS FOR POSTPONEMENT BY THE ACCUSED


"{ll11wl9

I
I

The trial prosecutor shall vigorously oppo.e any motion for postponement
initiated by the accused, unless for valid and compelling reasons. He should
make of record his o~jections thereto, leaving to the court's discretion the disposition of the subject motions (Peopfa v. Borja, supra).

I. DISCONTINUANCE OF PROCEEDINGS
During the presentation of the prosecution's evidence, the trial prosecutor
shall not cause or allow the discontinuance of the proceedings except for other
similarly compelling reasons not attributable to him (Ibid.) .

I
I

I
I
I
I
I

./--~__..""'

J. PRESENTATION OF EVIDENCE
The trial prosecutor is bound to complete the presentation of his evidence
within the trial dates assigned to him. After the lapse of said dates, he is deemed
to have completed his evidence presentation. However, based on serious reasons, he may file a verified motion to allow him a~~!!,QDal trial dates at the
discretion of the court.

156

Revised-Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I

I
I
I
I
I
I
I
I
I

III. 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 of time for guud..c.a.~se
.
(Sec. 2, par. 1, Rule ti 9, supra.).

The time limitation is not applicable to:


1. Criminal cases covered by the Rule on Sunu:nazy Procedure or where the
penalty prescribed by law does not exceed six (6) .months imprisonment,
or a fine of one thousand pesos (Pl,000.00 or both, irrespective of other
imposable penalties, is governed b ule D3.
2. RA 4908 (An Act Requiring Judges of Courts to Speedily Try Criminal
Cases Wherein the Offended Party is a Person about to Depart from the
Philippines with No Definite Date of return) requires such cases to take
precedence over all other cases before our courts except election and habeas
COf?US cases. The trial in these cases shall commenr-e within three days
from the elate the accused is arraigned and no postponement of the initial
hearing shall be- granted except on the ground of illness on the part of the
accused or other grounds beyond the control of the accused.
3. Speedy Trial of Child Abuse cases - The trial of child abuse cases shall take
precedence over all other cases before the courts, except election and habeas
corpus cases. The trial in said cases shall commence within three (3) days
from the date the accused is arraigned and no postponement of the initial
hearing shall be granted except on account of the illness of the accused or
other grounds beyond his control (Sec. 21, Rules and Regulations on the
Reporting and Investigation of Child Abuse Cases issued pursuant to Sec.
32 of R. A. No. 7610, otherwise known i'y.s "the Child Abuse Act").
4. Violations of the Comprehensive Dangerous Drugs Act of 2002 (RA 9165)
-Trial of these cases shall be finished by the court not later than ninety (90)
days from the date of the filing of the Information.
5. Under Administrative Code No. 104-96 of the Supreme Court, the cases
of kidnapping and/or kidnapping for ransom, robbery in band, robbery
committed against a banking or financial institution, violation of the AntiCarnapping Act of 1972 as amended, and Other Heinous Crimes (RA 7659)
committed within the respective territorial jurisdiction of the courts shall

Revised Manual for Prosecutors

157

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

undergo mandatory continuous trial and shall be terminated within sixty


(60) days from commencement of the trial.
B. ORDER OF TRIAL
Trial shall proceed in the following order pursuant to Sec. 11, Rule119 of
the Revised Rules on Criminal Procedure:
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, ?n<l damages, if
any, arising from the issuance of any pro.risional remedy in the case.
3. The parties may then respectively IJresent rebutting evidence only, wiless
the court, in furtherance of justice, permits them to present additional evidence bearing upon the main issue.
4. Upon admission of the evidence, the case shall be deemed submitted for
decision wiless the court directs the parties to argue orally or to submit
memoranda.
5. However, when the accused admits the act or omission charged in the
Comp!aint or Information but interposes a lawful defense, the order of trial
may be modified accordingly.
C. PRESENTATION OF WITNESSES
The order in the presentation of witnesses shall, as far as practicable, conform to the lo
uence of events obtaining in the case on trial in order to
present a clear, organized and coherent picture to the co
e prosecution's
evidence.
I} or example, in the case of prosecution wider the Comprehensive Dangerous
Drugs Act of 2002, the trial prosecutor should present the forensic chemist who
examined the dangerous drug ahead of the other witnesses in order that the court
may at once have a view of the real evidence (either the prohibited or regulated
drug subject of the case) and so that such evidence may be immediately identified by the other witnesses thus avoiding the recall of witnesses later on.
The rule of logical sequencing notwithstanding, a witness whose testimony
is vital to the case and whose life is in danger or who may be sick/injured and
may possibly die should be made to testify as early as practicable.
~

158

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

D. CONDITIONAL EXAMINATION OF WITNESS FOR THE


PROSECUTION
The trial prosecutor shall move for the conditional examination of a prosecution witness who is too sick or infirm to appear at the trial or has to leave the
Philippines with no definite date of returning. Such examination shall be done
in the presence of the accused or in his absence after reasonable notice to attend
the examination has been served on him, shall be conducted in the same manp.er
as an examination at the trial. Failure or refusal on the part of the accused to
attend the examination after notice herein before provided shall be considered
a waiver (Sec. 15, Rule 119, Supra.).

E. CROSS-EXAMlNATION OF THE DEFENSE WITNESSES


The prosecutor shall endeavor to secure well in advance all available infom1ativn 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.
F. REBUTTAL EVIDENCE

The presentacion and nature of rebuttal evidence will depend on the effect
which the defcriSe evidence may have caused on the prosec~ti~~-,; 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
refote, rebuttal evidence is unnecessary.

G. REQUEST FOR SUBPOENA


In all cases requiring the appearance in court of a witness for the purpose
of testifying upon a report (e.g. medico-legal, autopsy, qhemistry, ballistics,
statement of accounts, etc.) prepared by him or by his office, the trial prosecut?r
shall indicate the reference number of the report in the request for subpoena.

H. CUSTODY OF PHYSICAL AND REAL EVIDENCE PENDING TRIAL


In keeping with the professional resp_on~ib_i!i!Y-9i 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 Pt?!ishable nature, the trial prosecutor shall ensure that measures are taken to
providefor-~~.onda.ry_e_yi.Q~nce consisting of p_l:i9_to~~p_hs, or pictures of the
physical and real evidence, which evidence shall be attached to the records of
the case.

Revised Manual for Prosecutors

159

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

III. RELEVANT JURISPRUDENCE


1. The general rule is that motions for postponement are granted only upon meritori-

ous ground and no party has the right to assume that his motion will be granted.
(De Guia v. Guerrero, Jr., 234 SCRA 625 [1994]);

"X- 2. Under Sec. 9, Rule 119 of the Revised Rules on Criminal Procedure, the petitioners have the burden of proving the factual basis of their motions for the dismissal
of the Informations on the ground of a denial of their right to a speedy trial and to
a speedy disposition of the cases against them. They were burdened to prove that
such delay caused by the p:osecutor was vexatious, capricious or whimsical. On
the other hand, the prosecutor was burdened to present evidence to establish that
the delay in the submission of his report on reinvestigation of the cases was rea
sonably attributed to the ordinary process of justice, and that the accused suffered
no serious prejudice beyond that which ensued after an inevitable an
ary
delay. orpuz v. The San zgan ayan, 442 SCRA 29 2 4 ; Lumanlaw v. Judge
&Jgardo Peralta, Jr., G. R. No. 164953, February 13, 2006);
3. The trial of an accessory can proceed without awaiting the result of the separate
charge against the principal. The corresponding responsibiliti~s of the principal
accomplice and accessory are distinct from each other. As long as the SQmmission of the offense can be duly estzblisbed in evidence, the determination of the
lIB"bility of the accomplice or accessory can proceed independently of that of the
principal. (Vino v. People, 178 SCRA 626.);

..

4. The right of two or more accused iL a criminal case, to be tried separately is


essential and cannot be denied by the court (Sec. 33 of General Orders No. 58
(U. S. v. Torres, 62 Phil. 942). When a separate trial is demanded and granted,
it is the duty o~rosecution to repeat and produce all its evidence- at each
and every trial, ~s it had been agreed by the parties that the evidence for the
prosecution would not have to be repeated at the second trial and all the accused
had been present during the presentation of the evidence for the prosecution and
their attorneys had had the <!EJ?Ortuni!Y to cross-examine the witnesses for the
l
prosecution who had testified. (People v. Carpio, 68 Phil. 490);

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: .
a. when an offense is committed by more than one person, it is he duty of the
prosecutor to jnclu all of them in the Complaint or Information (Sec., Rule
110, Rules of Court);
b. if the prosecutor desires to utilize one or" those Charged with the offense
as a government witness, the prosecutor may ask the court to discharge

160

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

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 (US. v.
Enriquez, 40 Phil. 603);
d. the failure to follow the requirements of the rule relative to the use of a person, himself particeps 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. Binsol, JOO 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 ofilie Information to the time tl1e
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, bt: Jiscarde~ 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
ur.punished; 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 SCRA 169 [1987));
9. This is an indispensable requirement because iit 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 gimg. (People v. Mandagan, 52
Phil. 62 [1928]);
10. Meaning of "not the most guilty" is "not the least guilty" (People v. Court of
Appeals, 131SCRA107 [1984)). The rule does not require that he be the "least
guilty" but only that he not be "the most guilty". (People v. Faltado, 84 Phil.
89).

Revised Manual for Prosecutors

161

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

PART X. APPEAL I PETITION FOR REVIEW


I.

GENERAL RULES
A. WHAT MAY BE APPEALED
The resolutions of the Chief State Prosecutor/Regional State Prosecutor/
Provincial or City Prosecutor in criminal cases may be the subject of a petition
for review or appeal.

B. VENUE FOR THE FILING OF THE APPEAL/


PETITION FOR REVIEW
1. Appeals from/petitions for review of the resolution of the Provincial/City
Prosecuto'rs in cases which fall under the jurisdiction of the Regional Trial
Court shall be filed with the Office of the Secretary of Justice.

2. Appeals from/petitions for review of th~ resolutions of the Provincial/City


Prosecutors in cases cognizable by the rAetropolitan Trial Courts, Municipal
Trial Courts and Municipal Circuit Trial Courts shall be filed with the Office of
the Regional State Prosecutor. The resolution of ihe Regional State Prosecutor
is final.

3. In the National Capital Region, the appeals/p~titions 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 of the Chief
State Prosecutor is final.

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 hisl 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.

C. PERIOD TO FILE THE APPEAL/


PETITION FOR REVIEW
The appeal/petition for review must be filed wit!tin fifteen (15) days from
receipt of the questioned resolution by the party or his counsel or if a motion
for reconsideration has been filed, within fifteen ( 15) days from receipt of the

l.

162

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

resolution denying the motion for reconsideration. Only one ( 1) motion for reconsideration shall be entertained.
D. FORM AND CONTENTS
The appeal/petition for review shall be verified by the appellant/s/petitioner/s
and shall contain the following:
1. names and addresses of the parties;

2. the Investigation Slip Number ( I S. No.) and/er Criminal Case Number (


C.C. No .. ), if any and the title of the case including the offense charged in the
compJaint or information;

3. the venue of the preliminary investigation;

...

4. the specific material dates showing that it was filed on time;


5. a clear and concise statement of the facts, the assignment of errors, and the
legal basis of the appeal/petition for review;
6. proof of service of a cop~'/ies of the appeal/petition for review to the adverse
party/ies or counsel and the prosecution office concerned;
7. proof of payment of the appeal fee
The investigating/reviewing/approving prosecutor shall not be impicaded as
appellee. The party taking the appeal shall be referred to in the appeal as either
"complainant-appellant" or "respondent-appellant".
E. DOCUMENTARY ATTACHMENTS
/

a~o

The appellant/petitioner shall


his appeal/petitioxfi legible duplicate
ori,ginal or certified true copy of the resolution appealed from together with .ltgi,Ple copies of the comglaint, affidav1ts/swom statements (incl~ding their translations, if any, duly certified by the provincial/city prosecutor) and other evidence
submitted by both parties in the preliminary investigation or re-investigation.
-for the first time on appeal
- shall not be admitted. If submitEvidence submitted
ted, the reviewing prosecutor shall disregard it. A copy of the motion to defer
proceedings shall likewise be attached to the appeal/pet1tmn when an information
hasatready been filed in court.
'

Revised Manual for Prosecutors

- .

163

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

F. EFFECT OF FAILURE TO COMPLY WITH THE REQUIREMENTS


The failure of the appellant/petitioner to comply with any of the requirements
in the provisions under sub-titles B, C, D, and E shall constitute sufficient ground
for the dismissal of the appeal.

In appeals filed before the Secretary ofJustice/ChiefState Prosecutor/ Regional


State Prosecutor and when an informaf
already been filed in court, it is the
du of the appellant to immediately info
the concerned appellate authority
of the action o t e court on t e motion o e er procee mgs.
ai ure o the
appellant to inform shall be a ground for the dismissal or the appeal/petition for
re

H. WHEN ACCUSED/APPELLANr IS ARRAIGNED DURING PEND ENCY


OF APPEAL/PETITION FOR REVIEW
When the accused is arraigned during th~dency of the appeal, the prosecutor concerned shall likewise immediateiy ~fc~he Secretary of Justice/Chief
State Prosecutor/Regional State Prosecutor orSuCh ai1 l:lrraignment

I. APPELLEE'S COMMENT
Within a non-extendible period of fifteen ( 15) 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 appelbnt. 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 there.in 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. WITHDRAWALOFTHEAPPEAL/PETITION FORREVIEW

I
I
I

WHEN AN INFORMATION HAS BEEN FILED IN COURT

The appeal/petition for review may be wit}J.d.rawn }t_ any time before it is
finally resolved, in which case the questioned_ resolution shall stand as if no appeal/petition has been taken.

164

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

I
I

L. MOTION FOR REINVESTIGATION PENDING APPEAL


1. When an Information Has Not Yet Been Filed in Court

At any time after the filing of the appeal/petition and before its resolution,
the appellant/petitioner may file a motion for reinvestigation before the Office
of the Secretary of Justice/ Office of the Chief State Prosecutor/ Office of the
Regional State Prosecutor on the ground that new and material evidence has
been newly discovered which appellant/petitioner could not, with reasonable
diligence, have discovered during the preliminary investigation and which, if
produced and admitted, would probably change the resolution.

2. When an Information Has Been Filed in Court


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. C.A., 235 SCRA 39 [1994}; Roberts vs. C.A., 254 SCRA 207
[1996}; Dimatulac vs. Vilon, 297 SCRA 679 [1998]; Solar Entertainment vs.
How, 338 SCRA 511 [2000]; Community Rural Bank of Guimba 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 <sol~ directing the reinvestigu.tion
of the case, if still legally feasible. Wh-en reinvestigation is granted, it shall
take place in the Qffi=c-:e~o.....f=th=e:.....:P:....:r..::os::.:e:.:c=utor from which the petition was taken.
M. DISPOSITION OF THE APPEAL/PETTION FOR REVIEW

The Secretary of Justice/Chief State Prosecutor/Regional State Prosecutor


may reverse, affirm or modify tJ:ie appealed resolution. They may, motu proprio
or on motion of the appellee, dismiss outright tht} appeal/petition on any of the
following grounds:
1. that the petition was filed beyond the period prescribed in Sec. C hereof;
2. that the offense has prescribed;
3. that there is no showing of any reversible error;
4. that the procedure or requirements herein prescrib~d have not been complied
with;

Revised Manual for Prosecutors

165

I
I
I
I
I
I
I
I
I
I
I
I
I
I
1
I
I
I
I

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.

N. MOTION FOR RECONSIDERATION


The aggrieved party may file with the offices conc~med, a motion for reconsideration within a non-extendible period of fifteen (15) days from receipt of the
resolution on the petition/appeal.

He/She shall:
1. furnish the adverse party or his counsel and the prosecution offices concerned
with copies thereof;
2. submit proof of such :service; and
3. pay the corresponding legal feels.
Only one ( 1) motion for reconsideration shall be entertained.

0. EFFECT OF FILING THE APPEAL/


PETITION FOR REVIEW
The appeal/petition for review shall not prevent the filing of the Information
in court unless the Secr~tary of Justice/ Chief State Prosecutor/Regional State
Prosecutor as the case,tnay be, directs otherwise.
i
Pending the resolution of the appeal/petition for review, the accused may
move before the court for the suspension of the proceedings, to hold in abeyance
the issuance of a warrant of arrest and the deferment of his arraignment.

II.

RELEVANT JURISPRUDENCE
1. Sec. 79 of the Revised Administrative Code defines the extent of a department
Secretary's power. The power of control therein contemplated means (the power of
the department head) to alter, modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substittite the judgment of the
former for that of the latter. The power of control implies the right of the President

166

Revised Manual for Prosecutors

I
I
I
I
I
I

1.
I
I
I
I
I
I

I
I

I
I
I
I

(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).
2. While it is the duty of the prosecutor to prosecute persons who, according to
evidence received from the complainant, are shown to be guilty of a crime, the
Secretary of Justice is likewise bound by his oath of office to protect innocent
persons from groundless, false or serious prosec1:1tion. He would be committing
a serious dereliction of duty if he orders or sanctions the filing of an Information
based upon a complaint where he is no_t convinced that the evidence would warrant
the filing of the action in court. As he has the power of supervision and control
over prosecuting officers, the Secretary of Justice has the ultimate power to decide
which, as between two co!1flicting theories of the complainant and the respondents,
should be believed (Vda. De Jacob v. Puno, 131SCRA148 {1984]).
3. The DOJ Order aliows the filing of an Information in court after the consummation of the preliminary investigation even ifthe accused can still exercise the right
to seek review of the pr::>secutor's recommendation with the Secretary of Justice
(Solar Entertainment, Inc. v. How, 338 SCRA 511 {2000]).
4. There is nothing ia Crespo v. Mogul, 151 SCRA 462 [1987] which bars the DOJ
from taking cognizance of an appeal, by way of a petition for review , by an accused in a criminal case from an unfavorable ruling of the investigating prosecutor.
It merely advised the DOJ to, "as far as practicable, refrain from entertaining a
petition for review or appeal from the action of the prosecutor, when the Complaint
or Information has already been filed in Court (Marcelo v. Court of Appeals, 235
SCRA 39 {1994]). Reiterated in the case of Community Rural Bank of Guimha v.
Talavera, 455 SCRA 34 [2005]).
5. Petitioners were not barred from appealing from the resolution holding that only
homicide was committed, considering that their complaint was for murder. By
holding that only homicide was committed, the Provincial prosecutor's Office of
Pampanga effectively "dismissed" the complaint for murder. To rule otherwise
would be to forever bar redress of a valid grievance, especially where the investigating prosecutor demonstrated what unquestionably appeared to be unmitigated
bias in favor of the accused (Dimatulac v. Villon, 297 SCRA 679).
6. A motion for reinvestigation on the ground of newly discovered evidence must
be filed before the Secretary of Justice rules on an appeal from a resolution in a
preliminary investigation ( Community Rural bank of Guimba v. Talavera, supra.)
7. The Resolution of the DOJ Secretary is appealable administratively to the Office
of the President where the offense charged is punishable by Reclusion Perpetua
(de Ocampo v. Secretary ofJustice, G. R. No. 147932, Jan. 25, 2006 citing Memo.
Circular No. 58, citing Dee v. CA, 238 SCRA 254).

Revised Manual for Prosecutors

167

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

PART XI. MISCELLANEOUS MATTERS


I.

HOLD DEPARTURE ORDERS AGAINST ACCUSED PERSONS


.To ensure that those accused of criminal offenses will not evade prosecution and
punishment by leaving abroad during the penciency of criminal proceedings, trial
prosecutors are directed, pursuant to DOJ Circular No. 38 dated 15 August 1990, to
move for the issuance by the court of a Hold Departure Order (HDO) (please refer to
NPS Sample Format "C" onp. 294 of this Manual) against the accused and for the
Bureau of Immigration to implement the same in the following cases:
1. Violation of PD 1866, as amended by RA 8294, codifying the laws on illegal/unlawful possession, manufacture, dealing in, acquisitio~ 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 of RA No. 6435, "The Dangerous Drugs Law", as amended (now RA
9165 otherwise known as the Comprehensive Dangerous Act of 2002);

4. Violation of RA No. 6539, "The Anti-Camapping Law";


5. Violations of Secs. 3601to3603, inclusive, and Secs. 3605 to
the Tariff and Customs ;

~610,

inclusive of

6. Bank frauds and frauds against public treasury and other crimes involving economic sabotage.
II.

CANCELLATION OF TRAVEL DOCUMENTS


In cases where the accils~d has jumped bail and fled to another country, the trial
prosecutor shall immediately report (please refer to NPS Sample Format "D-1" on
p. 296 this Manual) to the Chief State Prosecutor/Regional State/Provincial/City
Prosecutor who shall, with the approval of the Secretary of Justice (please refer to
NPS Sample Format "D-2" on p. 297 of this Manual), make appropriate representations with the Department of Foreign Affairs for the cancellation of the accused's
passport and other travel documents so as to make the accused an undocumented alien
in the host country and thereby made subject to deportation and is being considered
as a fugitive from justice.

168

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

III. HANDLING OF CRIMINAL COMPLAINTS FILED AGAINST PUBLIC


OFFICERS AND EMPLOYEES
In addition to DOJ Circular No. 26 dated July 3, 2008 (please refer to Appendix
"G" onp. 313 of this Manual), the following guidelines shall also be observed in the
investigation and prosecution of cases against public officers and employees pursuant
to OMB-DOJ Circular No. 95-001, series of 1995, to wit:
1. Preliminary investigation and prosecution of offenses committed by public
officers and employees in relation to their office, whether cognizable by the
Sandiganbayan or the regular courts and whether filed with the Office of the
Ombudsman or with the office of the ProvinciaVCity Prosecutor shall be under
the control and supervision of the Office of the Ombudsman.
2. Unless the Ombudsman, under its constitutional mandate, finds reason to believe
otherwise, offenses which are not in relation to office anC: cognizable by the rngular courts shall be investigated and prosecuted by the Office of the Provincia1/City
Prosecutor which shall rule thereon with finality.
3. The preparation of the Information shall be the responsibility of the Investigating
Prosecutor who conducted the preliminary investigation. The resolution recommending prosecution, together with the duly acc~mplished Informc;.tion, shall be
forwarded to the appropriate approving authority.
4. Towards the effective monitoring of all investigations and prosecution of criminal
offenses against the public officers and employees, the Offices of the Provincial/
City Prosecutor shall submit to the Office of the Ombudsman a monthly report
of all complaints filed with their respective offices against public officers and
employees.

IV.

NOTIFICATIONOFPROSECUTOROFTHEFILINGOFANAPPLICATION
FOR PROBATION
The court shall notify the trial prosecutor of the filihg of an application for the
grant of probation filed by a defendant after conviction and sentencing but before
service of sentence (Sec. 4, PD 968, as amended by PD 1527).

A. COMMENT ON APPLICATION FOR PROBATION


The trial prosecutor shall submit his comment to the application for probation within ten ( 10) days from receipt of the notification of the filing of said
application (Sec. 4, PD 968, as amended, supra.).

Revised Manual for Prosecutors

169

I
I
I
I
I
I
I
I

I
I
I
I
I
I
I
I
I
I
I

B. RELEASE OF APPLICANT FOR PROBATION


Pending resolution of the application for probation, the accused may be released on temporary liberty under his bail filed in the criminal case. In case no
bail was filed or if the defendant is not capable of filing one, the court may release
the:_defendant on recognizance to the custody of a responsible member of the
community who shall guarantee his appearance whenever required by the court
(Sec. 5, ibid.).

C. OBJECTION TO GRANT OF PROBATION


The trial prosecutor shall object to the application for the grant of :;Jrobation
in the following instances:

1. if the defendi111t fails to comply with any of tii~ following criteria for the grant
of probation:
a. the offender is in need of correctional treatment that can be provided most
effectively by his commitment to an institution; or
b. there is undue risk that during the period _?f probation, the offender will
commit another crime; or
c .. probation will depreciate the seriousness of the offense committed (Sec. 8,
PD 968).
2. if there is no post-sentence investigation conducted .by a probation officer
(Sec. 5, ibid);
3. if the application is filed after an appeal from the conviction is perfected (Sec.
4, ibid.) or,

4. if the ar}plicant is one a. sentenced to more than six (6) years and one (1) day;
b. convicted of an offense against the security of the state under the Revised
Penal Code, to wit:
1. Art. 114 (Treason);

2. Art. 115 (Conspiracy and proposal to commit treason);


3. Art. 116. (Misprision of treason)_;

170

Revised Manual for Prosecutors

I
I
I
I
I

4. Art. 117 (Espionage);


5. Art. 118 (Inciting to war and disloyalty in cases of war;
6. Art. 119 (Violation of neutrality;
7. Art. 120 (Corresponding with hostile country);
8. Art. 121 (Flight to enemy's country);
9. Art. 122 (Piracy in genera] and mutiny on the high seas);

I
I
I
I
I
I
I
I
i
I
I
I
I
I

10. Art. 123 (Qualified piracy)


11. RA 9165 when applicable
c. who has been previously convicted by final judgment of an offense punishable by imprisonment of not less than one (1) month and one (1) day
and/or a fine of not more than Two Hundred Pesos (Php200.00);
d. who has once been on probation under Presidential Decree No. 968 (Sec.
9, PD 968).

D. HEARING FOR THE REVOCATION OF PROBATION


In ca.se one who is placed on probation is arrested for a serious violation of the
conditions of probation and brought before the court for a hearing of the violation
charged, the prosecutor shall represent the State in said hearing if the revocation
is contested(Sec. 15, ibid).

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.

PROCEDURE IN CASES INVOLVING CHILDREN


A. INQUEST PROCEEDINGS
1. If the Child is the Complainant

The presence of the child during the inquest proceedings shall not be required unless his statement is found wanting in material or substantial details
and it is considered necessary to have him further examined, in which event
the inquest prosecutor shall:

Revised Manual for Prosecutors

171

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

a.

give the case first priority;

b.

have the proceedings conducted as far as practicable in the Provincial/


City Prosecutor's Office during regular office hours;

c.

conduct the examination of the child in the presence and with the assistance of his/her parents, guardian, custodian and/or authorized representative;

d.

~nsure

against undue and sensationalized publicity, ~specially where the


charge involves a crime ag1:i.nst chastity (please refer to Appendix "H"
on Guide for Media Practitioners on the Reportage of Children s Cases
on p. 316 of !his Manual);

e.

see to it that the child is not subjected to any form of harassment or


undue influence from any party, particularly in cases where the alleged
offender is the child's parents; guardian, custodian, or one who has official, moral, social or financial ascendancy over the child;

f.

take down the name, address, age and date of birth of the child, as well
as the name and address of the child's parents, guardian or custodian,
and reflect the same in the record of t!Je caS'e/proceedings; and

g.

not to countenance the withdrawal/dismissal of the case in the course


of the inquest proceedings unless made with the express conformity or
consent of the child and the latter's parent/s, guardian, custodian or authorized representative. In case of conflict, the child's wish or decision
shall prevail.

2. If the Child is the Suspect


of:

The inquest prosecutor shall determine the age of the child on the basis
/.-

a. documentary proof such as, but not limited to, birth certificates, baptismal
certificates, school record, dental chart, 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.

172

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

If the child is over fifteen (15) but under eighteen (18) years of age,
the inquest prosecutor shall determine whether or not the former acted with
discernment in committing the act complained of and ifhe finds that the child
did not act with discernment, he shall:
1. immediately prepare a written report of his findings, recommending
therein the dismissal of the case and the immediate release of the child
from custody;

2. submit the same to the Provincial/City Prosecutor or the Chief of the


Inquest Division, as the case may be, for appropriate action; and,
3. pending approval/disapproval of his recommendation, cause the child
to be placed under the custody of the DSWD or other authorized person
or entity;
If the inquest prosecutor finds that the child acted with discernment,
he shall proceed in accordance with the rules and procedure established
by RA 9344, otherwise known as "the Juvenile Justice and Welfare Act
of 2006".

3. Guidelines in thP, Conduct of All Inquest Proceedings Involving a Child:


The inquest prosecutor shall:
a. as far as practicable, conduct the pr0ceedings in the Office of the Provincial/
City Prosecutor during regular office hours;
b. see to it that the child is accompanied and assisted by the parents, guardian, custodian and/or authorized representative;
c. ensure that the child is provided with competent legal assistance;
d. make sure that the child is not co-mingled with Adult detainees in one and
the same detention cell;
e. take care that the child is not subjected to any form of coercion, harassment
or undue influence from any party wielding parental, custodial, official,
moral, social or financial ascendancy over the chil<l;
f.

in no case employ any form of deceit or false promises during the investigation process; and,

g. ensure the case/proceedings against undue and sensationalized publicity.

Revised Manual for Prosecutors

173

I
I
I
I
I
I
I
I
I
I
I
1.
I
I
I
I
I
I
I

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 parent/s, guardian, custodian and/or authorized representative.
B. PRELIMINARY INVESTIGATIONS
The prosecutor shall conduct a preliminary investigation only in the following instances:

When the child does not qualify for diversion;

When the child, the parent or guardian does not agree to diversion;

When diversion is not ap!_Jropriate for the child, after considering the assessment and recominendation of the s0cial 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

The presence of the child during the prelimin~ry investigation shall


not be required. Where it is considered necessary that the child be summoned for clarificatory questioning, the investigating prosecutor shall:
a.

conduct the examination of the chilci in the presence and with the
assistance_9fhis/her parent/s, guardian, custodian and/or authorized
reqresentative or social worker;

b.

ensure the case and/or the proceedings against sensationalism and


undue publicity, especially where the charge involves the commission of a crime against chastity;

c.

see to it that the child is not subjected to any form of harassment or


undue influence from any party, particularly in cases where the offender is the parent/s guardian, or custodian, or one who has official,
moral, social or financial ascendancy over the child; and,

d.

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.

174

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

'

2. If the child is the respondent

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 of the child during the preliminary investigation p:rpceedings shall not be required unless it is considered necessary
for clarificatory questioning, in which case, the Investigating Prosecutor
shall:
a.

conduct the examination of the child in the presence of the parent/s,


guardian, custodian and/or authorized representative or Local Social
Welfare Development Officer (LSWDO), and with the assistance of
a competent legal counsel;

b.

see to it that the fundamental rights of the child are fully protected
and safeguarded;

c.

take care that any party wielding parental, custodial, official, morai,
social or financial ascendancy over the child does not subject the
latter to any fon.n of coercion, harassment or undue influence;

d.

ensure the case/proceedings against undue and sensationalized publicity.

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 a11 records should always be maintained.

C. PROTECTIVE CUSTODY OF THE CHILD

The child shall be placed under the protective custody of the Social Welfare
and Development or other accredired NGOs pending inquest and/or preliminary
investigation proceedings.
D. TERMINATION OF INQUEST/PRELIMINARY INVESTIGATION

Upon the termination of the inquest/preliminary investigation proceedings,


notice of the action taken on the case by the inquest/preliminary investigating
officer shall be given to the child victim, the child in conflict with the law and
their parent/s, guardian, custodian or authorized representative.

I
i

I
'

Revised Manual for Prosecutors

175

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

VI. PROCEDURE INVOLVING VICTIMS OF TRAFFICKING IN PERSONS


AND VIOLENCE AGAINST WOMEN AND THEIR CHILDREN
The procedures for conducting the inquest proceedings and preliminary investigations prescribed in this Manual shall be applied in cases involving trafficking
in persons and violence against women and their children. In addition, the following performance standards for prosecution services developed by the DOJ and the
NCRFW shall be observed:

A. PRELIMINARY INVESTIGATION
The prosecutor shall make sure that the complainant is informed of the
rights under RA 9208 and RA 9262, the legal procedures on preliminary investigation, the crimes charged and the benefits under the witness protection
program for trafficking cases and victims' compensation program.

GUIDELINES:
1. The complainant is informed that she can request for a female pr0secutor or a prosecutor she is comfortable with and if so requested, the
complainant is provided with one.
2. The complainant is interviewed in a gender-sensitive
terms to be used should be gender-neutral.

r~lanner

and the

3. Examination of the victim is .:onducted in a gender-sensitive manner.


Prosecutors should have the following attitudes:
accepting and non-judgmental
smcere
patient and understanding
empathic
committed to observing and
safeguarding confidentiality
4. The prosecutor should be open and encouraging in asking questions.
5. The interview shall be done behind closed doors in a private environment where confidentiality is assured and the complainant's level of
comfort is considered.
6. The prosecutor shall refer the complainant for medical and neuropsychological examination for possible health problems (e.g. malnutrition, STD, signs of rape, bruising; broken' bones, critical illness,
post-traumatic stress disorders).

176

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

I
I
I

7. All case-related documentation are properly obtained, reviewed and


kept confidential.
8. The facilities used during the interview should be safe to ensure confidentiality:
a.

A specific room is assigned for interviewing complainants and


witnesses.

b.

The interview rooms are secured, i.e. locked to ensure privacy.

c.

The room contains gender-neutral furnishings, comfortable


chairs, a table, and documentation equipment such as a computer, a recorder or a typewriter.

9. The prosecutor shall not allow the media to gain ac::ess 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 disdose the name and personal
drcumstances of both parties or any other information that might
reyeal their identity to the media or the public, or take any action that
mig!:it compromise their privacy.
l 0. The prosecmor shall coaduct the interview in a language understood
by the complainant, with sensitivity to the ordeal she is facing, and
employ creative tools for investigation.
11. The prosecutor should be capable of determining whether or not the
complainant needs oti1ier support services for the investigation or litigation of the case.
12. A trained counselor/social worker should be present during the interviews, if available, to support the victim/survivor.

l
13. The preliminary investigation should be terminated and resolved in
the earliest possible time.
14. The complainant should be notified of the results of the case.
B. EVIDENCE GATHERED/BUILT-UP BY. THE LAW ENFORCER; NEED
TO CHECK
The prosecutor, as far as practicable, should check the conduct of the surveillance needed to support the filing of a case (police/NB I 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

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

C. PROSECUTION GUIDELINES:
1. 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 n.e<;;essary.

VII~

PROCEDURE FOR THE FILING OF A PETITION FOR CERTIORARI


THROUGH THE OFFICE OF THE CHIEF STATE PROSECUTOR
A. WHEN TO FILE A PETITION FOR CERTIORARI
1. The court issued an adverse ruling without or in excess of jurisdiction or with
grave abuse of discretion amounting to lack or excess of jurisdiction.
2. There is no appeal or any plain speedy or adequate remedy in the ordinary
course oflaw.
B. COVERAGE
Only petitions for certiorari under Rule 65 of the Revised Rules of Court
which are to be filed before the Supreme Court or the Court of Appeals may be
acted upon by the Office of the Chief State Prosecutor.
l
C. PERIOD TO :FILE THE PETITION
The petition shall be filed with the Supreme Court or the Court of Appeals not
later than sixty (60) day~ from notice of the judgment order/resolution. In case
a motion for reconsidaation or new trial is timely filed, whether such motion
is required or not, the sixty (60) day period shall be counted from notice of the
denial of said motions.

178

Revis~d

Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

D. ACTION TO BE TAKEN BY THE TRIAL PROSECUTOR


1. 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.
Legible duplicate original or certified true copy of the decision, judgment
or resolution or order subject of the petition for certiorari must be attached to
the draft.
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 offir..er of the court, tribunal, board commission or office
involved, or by his duly authorized representative.

NOTE: Certification by the parties themselves, their counsel, or any


other rerson shall not be allowed.
NOTE: Photocopies, not originally certified, of the alleged certified true
copies of the decision ofthe trial court are not sufficient compliance.
Certification under oath must be appended to the draft petition stating that
the requesting prosecutor has not commenced any other action or proceeding
involvic.g the same issued in the Supreme Court, the Court of Appeals, or any
other tribunal or agency.
As far as practicable, a copy of the transcript of stenographic notes {TSN),
case record, trial brief outlining proceedings of case, documentary evidence
certified copies of decision to be elevated.
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.

E. ACTION OF THE CHIEF STATE PROSECUTOR


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.

Revised Manual for Prosecutors

179

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

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.
VIII.HANDLING OF ENVIRONMENTAL CASES
A. REVISED FORESTRY CODE (PD 705)
1. EVIDENCE REQUIRED
a. For the first and second modes ofviolat\on of Sec. 77 (Cutting, gathering
and/or collecting timber or other forest products without license), the following pieces of evidence are crucial:

Affidavit of the apprehending officer;

Proof that the accused failed to show cutting license or permit when
apprehended and asked to present the authority to cut;

Survey of area using Land Classification maps as reference to show


whether the prohibited act was done inside forest land, alienable or
disposable land or private land (Cluserravc-rse duly conducted by a
CE1'TRO Survey Officer);

The logs, timber, flitches or lumber that were apprehended;

Conveyance, equipment, machineries, implements or tools, if any;

Identity and affidavit of apprehended violators.

b. For violation of Sec. 78 (Unlawful occupation or destruction of forest


lands and grazing lands):

180

Proof of failure to present license agreement, lease, license or permit


to enter and occupy forest land or grazing lands when accosted;

Affidavit of the investigating forest officer;

Survey maps of area occupied and destroyed using Land Classification


map or reference to prove that the area is inside forest land or grazing
land;

Inventory and tally sheet, stand and stock table of timber or forest
products destroyed and the correspo~ding forest charges to be used as

basis in imposing penalty;

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Damaged forest land due to indiscriminate setting on fire of forest


land by the violator;

Damaged grazing land due to indiscriminate cutting of trees and other


vegetation by the violator;

Damaged forest land due to indiscriminate setting on fire of grazing


land by the violator;

The following documents are likewise useful:

Proof of failure to present license agreement, lease, license or permit


to occupy grazing land when apprehended;

Proof that the violator introduced within occupiec. areas domesti(;


plants other than natural vegetation or trees or other vegetation;

Possession by th~ violator at the time of the apprehension 0f instruments, equipment and tools such as power saws, hand saws, bolos and
digging tools such as shovels, grub hoes, rakes, etc.;

Fallen trees, log~,


vegetation; ar-'d

Construction of shelter of light materials within the area or site of


occupation or kaingin.

~umber,

f.itches and other woody parts of dar11aged

c. For violation of Sec. 80 (Pasturing livestock), the following are required:

Investigation report of the forest officer showing failure of the accused


to present authority to graze livestock;

Survey map of the area utilize~ for unauthorized igrazing;

Inventory of livestock grazed.

d. For violation of Sec. 82 (Survey by unauthorized persons), the following


are important:

Implements and instruments used in the survey of the area involved;

Survey report and sketch plan of the surveyed area by the investigating officer;

Revised Manual for Prosecutors

181

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Land Classification Map showing that the area is classified as


forest land

e. For violation of Sec. 88 (Sale of Wood Products), the following are important:

The logs, lumber or forest products subject of the sale;


Scale Report;
Sales Invoice

2. POINTERS
It is suggested that the confiscated forest/wood products under court litiga-

tion should be allowed for disposal to save their economic value. Conformably,
a motion should be made with the court for an appropriate ruling such that
the confiscated forest'wood products be sold as soon as their presentation as
evidence is completed. The proceeds tht:reof will be deposited/held 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 of Sec. 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, applymg Article 10 of the Revised Penal Code and the
ruling of the Supreme Court in PP vs. Martin S. Simon (GR No. 93028, July
29, 1994; 234 SCRA 555), such circumstance of recidivism or reiteracion
should be alleged.
The prosecut<hr 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

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

I
I
I

B. TOXIC SUBSTANCES AND HAZARDOUS WASTE ACT (RA 6969)


1. EVIDENCE REQUIRED

a. Important piece of evidence - Waste Transport Record (DAO No. 200436) with:

Generator information (includes the classification and quantity of


each hazardous waste, methods of treating hazardous waste, methods
of treating hazardous waste, special instruction)

Transporter information (information about the common carrier)

Results of sampling (Laboratory Analyses) signed by chemists from


the DENR-EMB or DENR-accredited laboratories.

Report on the inspection and monitoring of premises prepared by the


proper authorities (EMB-Regiona! Office and signed by the Regional
Director).

C. PEOPLE'S SMALL SCALE MINING ACT (RA 7076)


1. EVIDENCE REQUIRED

Technical or office g~nerated 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.

D. PHILIPPINE MINING ACT (RA 7942)


1. EVIDENCE REQUIRED
a. For violation of Sec. 103 (Theft of Minerals), the following documents
should be attacb.ed to the complaint:

Sworn statement of the apprehending/arresting officer (MGB Form No.


12-2);
Affidavits of witnesses, if any (MGB Form No. 12-3);
Copy of the seizure receipt;
Photographs showing the minerals/mineral products seized including
the tools, equipment and conveyance used in the commission of the offense; and
Other supporting papers/evidences as the court may require.

Revised Manual for Prosecutors

183

I.
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

2. POINTERS
a. For violation of Sec. 102 (Illegal Exploration), it should be made clear
that the "consent" of officials of the local government unit, particularly
the barangay captains and mayors, and tribal chieftains is not a defense.
b. Claim owners or MPSA holders found to have ~xtracted minerals outside
their mining areas should be charged with violation of. Sec. 110 (Other
Violations) instead of Sec. 103 (Theft of Minerals) since they should not
be treated similarly with those who have no c8ntract or permit at all.
c. Dc.::uments purpori:ing to be business permits attached as annexes to
counter-affidavits should not be given any weight in the determination of
whether or not the respondent 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. Secs. 104 (Destruction of Mining Structures), 105 (Mines Arson) and
106 (Willful Damage to a Mine) would be applicable if the motive for
the rommission of the prohibited acts is plain extortion. If perpetrated by
insurgent groups in furtht:rance of their goal to overthro\V 0r destabilize
the government, then rebellion or sedition, as the case maybe, would be
the more appropriate charge. Also, if all the three offenses are committed
in a single occasion, Sec. 105 should absorb the acts described in the two
other Sections.
2. Sec. 110 (Other Violations) should include violations of the following
provisions of the Mining Act: Secs. 54 (Mineral Trading Registration);
55 (Mineral Processing Permit), 64 (Mine Labor); 65 (Mine Supervision);
and 74 (Right to Possess Explosives). Additionally, violations of certain
provisions of the IRR of the Mining Act (DAO No. 96-40, as amer.ded),
particularly Secs. 172 and 179, refer to the penal provisions of the Mining
Act.
E. CLEAN AIR ACT (RA 8749)

1. POINTER
It should be noted that an order from the Pollution Adjudication Board

{PAB) directing tht" filing of a criminal case is a condition precedent.

184

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

F. ECOLOGICAL SOLID WASTE MANAGEMENT ACT (RA 9003)


1. POINTER

The applicable procedures in criminal prosecution for violation of RA


9003 is Rule XIX (Administrative and Enforcement Procedures) of DAO No.
2001-34 (IRR ofRA 9003).
G. WILDLIFE CONSERVATION AND PROTECTION ACT (RA 9147)
1. .E \'ID ENCE REQUIRED

a. Useful pieces of evidence in the prosecution of violators of Sec. 27, particularly the killing of wildlife:

Certificate from the DENR or Protected Areas and \\ 0Jdlife Bureau


(PAWB) that the animal is a wildlife; and
Necropsy report from a veterinarian.

b. On inflicting injury:

Certific1ti0n from the DENR or PAWB that the animal is a wild!ite;


and
Certification from a licensed veterinarian that the concerned wildlife,
after the infliction of the injury, is no longer capable to utilize its reproductive ~ystem.

c. Dumping of waste products detrimental to wildlife:

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 tlke NIPAS Act, or
designated as such in accordance with Sec. 25 of RA 914 7.

d. Trading of wildlife:

Certification from the DENR as to the classification of the concerned


wildlife; and
Certification from the DENR that no permit was given to violator for
the concerned activity.

e. Transporting of wildlife:

Revised Marual for Prosecutors

185

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

f.

Certification from the DENR as to the classification of the concerned


wildlife; and
Certification from the DENR that no corresponding permit was given
to the violator for the concerned activity.

Maltreating and/or inflicting other injuries not covered by the preceding


paragraph:

Certification from the DENR as to the classification of the concerned


wildlife; and
Affidavit of a witness who saw the act of maltreatment or inflicting
injury to the wildlife.

g. Squatting or otherwise occupying any portion of the critical habitat:

Certification froin 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 accorciance with Sec.
23 of RA 9147.

h. Mineral exploration and/or ext-action, burning, logging, and quarrying:

Introduction, re-introduction, or re-stocking of wildlife resources:

J.

Certification from the DENR or PAWB foat the place where the concerned act is done is within a critical habitat in a~cordance with RA
7586 or the NIPAS Act or designated as such in accordance with Sec.
23 of RA 9147.

Certification from the DENR that no permit was given to the violator
for the concerned activity.

Collecting, hunting, or possessing wildlife, their by-products and derivatives:


}

Certification from the DENR as to the classification of the concerned


wildlife; and
Certification from 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 DENR as to the ~classification of the concerned


wildlife; and

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Certification from the DENR that no permit was given to the violator
for the concerned activity.

H. CHAINSAW ACT (RA 9175)


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 Ce1 ti.cate of Registration;
Affidavit of the apprehending/investigating officer.

b. To establish the offense of unlawful importation or manufacturing of chain


saw:

.,

Chain saw;
Import documents;
Certification from the DENR Registering Office that the importer or
manufacturer has no permit;
Affidavit of apprehending/investigating officer.
Prosecutors should be made aware that there is also an administrative
adjudication aspect, followi:::ig DAO No. 97-32.

I. CLEAN WATERACT (RA9275)


1. EVIDENCE REQUIRED

a. Results of laboratory analysis of samples collected (a) analyzed within


the period described in order to protect the integrity of the findings; and
(b) duly signed by the analyst and the head of the laboratory division.
b. In cases involving the commission of other prohibited acts under Sec.
27, the complaint-affidavit should be accompanied by the following
documents:

Affidavit of witnesses as to the commission of the prohibited act;


Affidavit containing the admission made, if any, by the person complained of;

Revised Manual for Prosecutors

187

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Proof of service of Notices of Violation (NOVs) and/or Invitations


for Technical Conference; and
Photographs and other documents that would establish the accuracy
and veracity of the statements made in the report.

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 (Laboratcry Anaiyses) 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 fiagrante delicto and in the
normal course of procedure. Also, there is no particular storage facility for the said wastes and other pollutants whik in cvstodial legis.

IX. PROSECUTION OF MONEY LAUNDERING CASES


A. GENER.\L RULES
1. Any proceeding relating to money laundering and the unlawful activity shall
be given precedence over the prosecution of an offense or violation under the
Anti-Money Laundering Act (AMLA) (RA 9160, as amended by RA 9194)
without prejudice to the application ex-parte by the Anti-Money Laundering
Council (AMLC) to_ the Court ofAppeals for a freeze order with respect to the
monetary instrument or property involved therein and resort to other remedies
provided under the AMLA, the Rules of Court and other pertinent laws and
Rules.
2. Trial for the money laundering offense shall proceed in accordance with the
Revised Rules on Criminal Procedure.
3. Knowledge of the offender that any monetary instrument or property represents, involves or relates to the proceeds of an unlawful activity or that any
monetary instrument or property is required and may be established by direct
evidence or inferred from the attendant circ_!.imstances.

188

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

B. DUTIES OF THE PROSECUTOR

1. Upon receipt of the complaint filed by the AMLC pursuant to Sec. 7 (4) of the
AMLA, the prosecutor shall conduct the requisite preliminary investigation;
2. When there is a finding of probable cause to engender a well-founded belief
that a money laundering offense has been committed, recommend for the filing of an Information before the Regional Trial Court;
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.
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 instrum~nt or property represents, involves or relates to the proceeds of any unlawful activity.
(Rule 6.6. of the Revised Implementing Rules and Regulations of RA 9160 as
amended by RA 9194).
. No element of the unlawful activity, however, including the identity of the
perpetrators and Lhe details of the actual commission of the unlawful activitf,
need be established by proof beyond reasonable doubt since the elements cf
the offense of money laundering ar~ ~eparate and distinct from th~ elements
of the felony or offense constituting thP, unlawful activity (Rule 6.7, ibid.).

Revi~ed

Manual for Prosecutors

189

I
I
I

'

j
i;

I.
I

I
I
I
I
I
I
I
I
I
I
I
I
I
I

190

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Special Section on
Prosecuting Human Rights Violations
and Providing Available Remedies Therefor

Revised Manual for Prosecutors

191

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Special Section on
Prosecuting Human Rights Violations
and Providing Available Remedies Therefor.
I.

IN GENERAL
A. STRUCTURE
This special section on human rights will start by presenting a summative
checklist to guide a public prosecutor in dealing wiih cases of human 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 Jhese provisions are few and
perform only a !argely compensatory function, we have to tum to ~r..e larger fi~ld
of substantive and procedural criminal law to be able to folly address the c:onsequences of the violation and provide the victim with the full coterie of remedie3
designed to vindicate the rights violated.

B. SUMMATIVE CHECKLIST
J. STEP ONE. How do you know that a human rights violation has beeti com-.
mitted?

a.

LOOK AT THE LEGAL BASES. The enumeration of civil 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.

For private parties violating human rights, Article 32 will be more


appropriate.

b. LOOK AT THE CIRCUMSTANCES OR THE CASE. One of the more


basic characteristics of human rights is that they are of such fundamental
character that anyone can readily acknowledge their inherence in every

192

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I

'
I

human person; as such, anyone can also readily recognize when a violation thereof has been committed. Some of the defining character of human
rights violations are:

They involve a wanton violation of the integrity of the human person s


body.

For example, physical injuries inflicted on a person are undoubtedly


on a lower place compared to acts of torture 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~

They involve an infliction ofintense psychological anguish, emotional


suffering, and moral helplessness.

For example, families of victims of enforr,ed disappearance had to


contend with the lifelong agony of not knowing what became of their
loved ones, and not even having the opportunity to give them a decent
burial. This ;Gnd of suffering adcs an entirely new layer of evil to
what would otherwise be a piai~ case of deprivation of life and liberty.
Deliberately withholding information regarding the whereabouts of
a person involuntarily disappeared makes the loss of a loved one assume an entirely different dimension.

They deviate from universally-accepted minimum standards of treatment ofevery human person.

Society may be divided in the issue of the imposition of the death


penalty in the criminal justice system, !Jut everyone will agree that
nobody deserves to die in an excruciatingly painful tlk1nner; and the
relatives of the dead should have the opportunity to bury their dead
with dignity. When a wrongful act deprives a human person of what is
due him/ her according to the minimum standards inherently ingrained
in everyone's sense of humanity, then there is an assault against fundamental human rights.

Revised Mar.l!al for Prosecutors

193

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

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)

3. STEP THREE. What do you do about it? Determine whether a. THE HUMAN RIGHTS VIOLATION IS CONTINUALLY BEING
PERPETRATED. For lxample:

in the case of a person involuntarily disappeared and whose fate and


whereabouts are still unknown; or
in the case of a person whose life or liberty is under threat by reason
of his/ her political beliefs; or
in the case of a person currently under the custody of State authoritie8
under circumstances that woulj warrani: a well-engendered fear of his/
her being subjected to torture or other forms of suffering

In these cases, the urgent need is to gather information regarding the


condition or whereabouts of the person, so that the appropriate remedy can
be availed of:

avail of the right of visitation of, and conference with, counsel that
is granted to every detainee or person under custodial investigation.
Torture or o!her forms of persecution can speedily be discovered and

addressed through this means.


utilize inquest lproceedings 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 "proc~ed 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 ~eing sought is:
,...:.;.

194

.r

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I

1. open to public access, or


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 iife or liberty has been clearly determined, then an aggrieved
party can:

'

Compel officials having custody of the person to bring such person to


court so that his/ her condition can be examined and his/ her detention
can be justified through a Writ of Habeas Corpus
Compel the State to extend ::iuch prote1,tion as may be adequate to
5afeguard his/ her rights through a Writ of Amparo

b. THE HUMAN RIGHTS VIOLATION HAS ALREADY BEEN


PERPETRATED.
For example:
~

in the case of a person who has already been subjected to torture; or


in the case of a person who was involuntarily disappeared and subsequently found to have been killed through "salvaging"; or
in the case of persons who were forced to leave their homes en masse
through intimidation and violence
In these cases, the paramount remedy is to seek redress for the violation
that has already been committed. This can be done through:

if this fails, or if information leading to the location of a person or


ascertainment of his/ her condition is privileged or classified, then
avail of the Writ of Habeas Data, mindful of the satisfaction of the
i::equisites regarding:

REMEDIES THAT EXPRESSLY RECOGNIZE HUMAN RIGHTS


VIOLATIONS. Although there are only few legal remedies that specifically tackle and address human rights violations, they are nonetheless effective because they directly acknowledge the existence of a
wrongful act that may be classified as a human rights violation. The
primary objective of these measures is indemnification for the resulting damages arising from the violation. These are:

Revised Manual for Prosecutors

195

I
I
I
I
I
I
I
I
I
I
I
I
I
I

1. Action for damages under Article 32 of the Civil Code


2. Claims under the Victim Compensation Act
3. In cases of torture or death of a suspected terrorist, an action for
criminal liability of a State official having custody over the suspected terrorist under Sec. 25 of the Human Security Act

For example:
1. The component felonies that may be equated to torture Eke maltreatment of prisoners, serious physical injuri%, administration
of injurious substance, mutilation, etc.
2. Equivalent felonies to enforced disappearance like artitrary
detention and kidnapping
3. Felonies parallel to involuntary displacemeut like grave coercion
and expulsion

4. STEP FOUR. Is there a way forward?


a. MAKE HUMAN RIGHTS VIOLATIONS AKIN TO AGGRAVATING
CIRCUMSTA~CES. The perpetration of felonies in a manner that qualifies them to human rights violations is an act that deserves condemnation.
The proposition that perpetrators of such acts must be subjected to graver
penalties finds intuitive validity in the consciousness of well-meaning individuals. However, penal laws do not operate in that manner. Laws must
be enacted to punish particular crimes, impose heavier penalties, or add
to the exclusive list of aggravating circumstances in the Revised Penal
Code; without them, there will be a violation of due process. This will
not preclude, however, the commencement of the practice among prosecutors and where human rights violations are recognized at the outset,
acknowledged accordingly in the Information, and equated when possible
to existing aggravating circumstances. ..

I
I
I
I

REMEDIES THAT INDIRECTLY RECOGNIZE HUMAN RIGHTS


VIOLATIONS. These are ordinary criminal actions involving felonies
that may be considered the closest equivalents of the human rights
violations discussed in this Manual. These human rights violations
- torture, enforced disappearances, extralegal killings, and involuntary displacement - are yet to be legislated as felonies or crimes in
themselves. However, this does not mean that these violations cannot
be prosecuted; they can and should be prosecuted, only they have to
be couched in existing criminal law terms, provided all their elements
are obtaining.

196

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

I
I
I
I

For example:

Nocturnal abductions (during which impunity is more or less secure) preparatory to enforced disappearances can be considered
aggravated by "noctumity".
Involuntary displacements undertaken during the height of armed
conflict or hostilities can be considered aggravated when "committed on the occasion of a calamity or misfortune".
"Liquidations" and other "salvagings" on account of political persecution, which often lead to extralegal killings, should be considered
clearly as products of "evident premeditation" because the plan
and mode of such attacks are almost always contemplated ahead of
time.
If torture is conducted with the victim's hands and feet tied (or
where the victim is physically restrained in any manner), or where
the victim was forcibly drugged, and if such torture is condu!;ted by
numerous people in succession or simultaneously, would aggravate
the felony by "taking advantage of superior strength" and "with
means employed to weaken the defense".
The prevalent practice of"salvagings" conducted in a swift manner,
under circumstances where the victim will be caught unaware and
unable to defen<l him/ herself, is evidentiary of "alevosia".
Murder involving physicai and psychological torture (e.g., forcing
the victim to ingest human excreta, torturing the victim while naked,
electrocution of the genitalia) can rightfully be classified as aggravated by "ignom1ny" and/ or "cruelty".

The ideal, of course, is for "violation of human rights" to somehow find


its way to the exclusive list of aggravating circumstances in the Revised
Penal Code. However, while such proposition still awaits legislative adoption, it has been shown that there are ways by which the prosecutor can
interject human rights violations in the consideration of the nature of the
felony and the gravity of the imposable penalty.
}

b. THE FACT THAT HUMAN RIGHTS VIOLATIONS HAVE BEEN


COMMITTED SHOULD BE REFLECTED IN THE INFORMATION.
An Information that is complete and correct in substance and in form will
not be invalidated simply because it supplied other information apart from
that usually seen in such processes. It is a vindication of human rights violations where they are acknowledged and recognized in the Information,
for then the courts can be better apprised of the exact quality of evil that
attended the commission of the felony, beyond its essential elements.

Revised Manual for Prosecutors

197

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Consider the following:


"Thatonoraboutthe 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 DEIMOS PERICLES, and CRISPULO
WAN 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.
"Donsol, Sorsogon, Philippines, April 8, 2008."
While the above Infonnation recites all the ess~ntial elements of murder, it
also went further to allege other facts that clearly paint the accurate picture
0 the felony - that is, through the violation of the fundamental human right
not to be subjected to t0rture and other cm.el, inhuman, and degrading treatment. In thos~ 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.

II.

PROSECUTING CASES OF TORTURE


A. BACKGROUND
Definition
Torture is defined in Black's Law Dictionary as the "infliction of intense pain
to body or mind for purposes of punishment, or to extract a confession or information, or for sadistic pleasure." Torture, when committed, represents a direct and
blatant violation of a person's human right not to be subjected to cruel, inhuman,
or degrading punishment, as well as to any physical or psychological means that
vitiate the free will. These human rights are enshrined
. in the Bill of Rights (Art.
/IL Sec. 12, pars. 2, 3 and 4; Art. III, Sec. 19, pars. 1 and):
.

198

ReviseCl Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

B. DEALING WITH TORTURE UNDER SUBSTANTIVE LAW


1. Unconstitutionality

The first thing that a prosecutor must bear in mind is that torture is unconstitutional. Article III, Sec. 12 (2), of the 1987 Constitution provides that
"no torture, force, violence, threat, intimidation, or any other means, which
Yitiate 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 III, Sec. 19, of the 1987 Constitution provides that "the
employment of physical, psychologii:al, or degrading punishment against any
prisoner or detainee or the use of 3ubstandard or inadequate penal facilities
under subhuman conditions shall be dealt with by law."
It being unconstitutional, cases of torture are of overriding and compelling significance and the State, acting through its agents, more particularly the
prosecutor, has an interest in se~ing to it that allegations of torture are verified
as early as possible.
2. Direct criminal prosecution for Maltreatment of Prisoners (Article 235,
Revised Pe."tal Code)
a. Legal hasis.

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 punish~s a publir, 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.
b. Elements of the felony.
l. Offender is a public officer or employee
2. He has under his charge a prisoner or detention prisoner

Revised Manual for Prosecutors

199

_1

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

3. He maltreats such prisoner in either of the following manners:

By overdoing himself in the correction of a prisoner or detention


prisoner under his charge, or

By. overdoing himself in the handling of a prisoner or detention


prison~r under his charge, through:" ,,
.,

. ;:

o the imposition of punishment not authorized by the regulations;


'.) the infliction of punishments authorized by the regulations in a
cruel and humiliating manner;
o the maltreatment of such prisoners to extort a confession or to
obtain some information from the prisoner.

3. Separate and simultaneous criminal acti.ons.


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 011 a piecemeal basis. All
the acts constituting torture and all acts committed in the course 0: the act
of torture can be prosecuted simultaneously. Based on common experi~nce,
torture oftentimes involves the infliction of physical and psychological sPffering on the victim through various acts designed to break the victim's will
and spirit so that he/ 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:

Mutilation (Art. 262, Revised Penal Code)

I. lntentiOnally mutilating another by depriving him, either totally or


partially, of some essential organ for reproduction; i.e.,:

There be a castration of organs necessary for generation, such as


the penis or ovarium; and
The mutilation is caused purposely and deliberately, that is, to deprive the offended party of some essential organ for reproduction;
or

2. Intentionally making other mutilation, that is, by lopping or clipping


off any part of the body of the offended party, other than the essential
organ for reproduction, to deprive him o.f that part of his body.

200

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

b. Serious, Less Serious, or Slight Physical Injuries (Art. 263, 265, and 266,
Revised Penal Code)

1. Serious Physical Injuries.

Committed by wounding; by beating; by assaulting; or by administering injurious substance.


The injured person suffered any of the following:
o

becomes insane, imbecile, impotent or blind in consequence


of the physical injuries inflicted;
o loses the use of speech or the power to hear or te smell, or
loses an eye, a hand, a foot, an arm, or a leg; loses the use of
any such member; or becomes incapacitated for the work in
which he was theretofore habitually engaged, in consequence
of the physical injuries inflicted;
o becomes deformed; or loses any other member of his body;
loses the use thereof; or becomes ill or incapacitated for the
performance of the work in which he was habitually engaged
for more than 90 days in consequence of the physical injuries
inflicted;
o becomes ill or incapacitated for labor for more th~n 30 days
(but must not be more than 90 days), as a result of the physical
injuries inflicted.
2. Less Serious Physical lnjuries.

Committed by wounding; by beating; by assa!llting; or by administering injurious substance.


Offended party is incapacitated for labor for 10 days or more (but
not more than 30 days), or needs medical attendance for the same
period of time;
The physical injuries must not be the same as those suffered under
l
Serious Physical Injuries

3. Slight Physical Injuries

Committed by wounding; by beating; by assaulting; or by administering injurious substance


Suffered any of the following:
o
o

incapacitated the offended party for labor from one to nine


days, or required medical attendance during the same period;
any injury that is not serious enough to prevent the offended
party from engaging in his habitual work or require medical
assistance;

Revised Manual for Prosecutors

201

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
,I

ill-treatment of another by deed without causing any injury.

c. Administering Injurious Substances or Beverages (Art. 264, Revised


Penal Code)
1.. Offender inflicted upon: another any serious physical injury;

2. It was done by knowingly administering to him any injurious substance or beverages or by


advantage of his weakness of mind
or credulity;
3. He had no intent to kill.

taking

Rape (Art. 266, Revised Penal Code)


1. Rape by carnal knowledge

Offender is a man~
Offender had carnal knowledge of a woman;
Stich act is accomplished under- any of the following circumstances:

o
o
o

o
0

By using force or intimid:ition;


When the woman is deprived of reason or otherwise unconsc10us;
By means of fraudulent machination or grave ab11se of authority; or
When the woman is under 12 years of age or demented.

2. Object rape

Offender commits an act of sexual assault;


Th~ act of sexual assault is committed by any of the foll0wing
meany-
.

;.:
o By'-inserthlg his penis into another person's mouth or anal
orifice; or
o By inserting any instrument or object into the genital or anal
orifice of another person;

The act of sexual assault is accomplished under any of the following circumstances:
By using force or intimidation; or
o When
or otherwise uncon. the victim is deprived of,...;.reason
.
sc10us; or
o

202

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

o
o

By means of fraudulent machination or grave abuse of authority; or


When the victim is under 12 years of age or demented.

e. Acts ofLasciviousness (Art. 336, Revised Penal Code)


1. That the offender commits any act of lasciviousness or lewdness.
2. That the act of lasciviousness is committed against a person of either
sex;
3. That it is done under any of the following circumstances:

By using force or intimidation; or


When the offended party is deprived of reason or otherwise unconscious;
Hy means cf fraudulent machination or grave abuse of authority;
or
When the offended party is under 12 years of age or demented.

Kidnapping and Illegal Detention


1. Kidnapping and Serious Illegal
Code)

D~iention

(Art. 267, Revised Penal

Offender is a private individual;


He kidnaps or detains another, or in any other manner deprives the
latter of his liberty:
The act of detention or kidnapping must be illegal;
In the commission of the offense, any of the following circumstances is present:
o
o
o
o

The kidnapping lasts for more than 3 days;


It is committed simulating public authority;
Any serious physical injuries are inflicted upon the person
kidnapped or detained or threats to kill him are made; or
The person kidnapped or detained is a minor, female, or a
public officer.

2. Kidnapping and Slight Illegal Detention (Art. 268, Revised Penal


Code)

Offender is a private individual;

Revised Manual for Prosecutors

203

I.
He kidnaps or detains another, or in any other manner deprives

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

him of his liberty;

The act of kidnapping or detention is illegal;


The crime is committed without the attendance of any of the
circumstances enumerated under Kidnapping and Serious Illegal
Detention.
.
'.""-

:"'

g. Grave Threats (Art. 282, Revised_ Penal Code)


1. Threatening another with_ the infliction upon his person, honor or
property, or that of his family, of any wrong amounting to a crime and
demanding money or imposing any other condition, even though not
unlawful, and the offender attained his purpose; OR
2. Making such threat without the offender attaining his purpose; OR
3. Threatening another with the infliction upon his person, honor or
property, or that of his family, of any wrong amounting to a crime, the
threat not being subject to a condition.

h. Grave Coercion (Art. 286, Revised Penal Code)


1. A person prevented another from doing something not prohibited by

law, or that he compelled him to do something ag&inst his will; be it


right or wrong;
2. The prevention or compulsion be effected by violence, threats or 1ntimidation; and
3. The person that restrained the will and liberty of ar:other had not the
authority of law or the right to do so, or in .other words, that the restraint shall not be made under authority of law or in the exercise of
any lawful right.

i.

Attempted or Frustrated Murder or Homicide (Art. 250, Revised Penal


Code)
_,,,.
1. If torture was committed through acts that clearly evince the perpetrator's intent to ultimately kill the victim (albeit in a protracted manner
as to first extract useful or incriminating information), although the
victim did not die as a result, then an action for frustrated or attempted
murder or homicide may be filed, alleging the following elements:

204

An attempt to kill a person;


Offender attempted to kill him without any justifying circumstances;
Offender had the intention to kill;
The killing was not attended by any ofthe qualifying circumstances
of murder, or by that of parritide or infanticide.

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I

I
I
I
I
I
I
I
I
I

J.

Murder (Art. 248, Revised Penal Code) or Homicide (Art. 249, Revised
Penal Code)

1. If the victim actually dies as a result of the torture, then an action


for murder or for homicide may be brought before the courts by the
heirs of the deceased assisted by the Prosecutors or Public Attorneys,
alleging the following elements:

A person was killed;


Accused killed him;
The killing was attended by any of the following qualifying circumstances:
o With treachery, taking advantage of superior strength, with the
aid or armed men, or employing means to waken the defense, or.
of means or persons to insure or afford impunity;
o In consideration of a price, reward or promise;
o By means of inundation, fire, poison, explosion, shipwreck,
stranding of a vessel, derailment or assault upon a railroad, fall
of an airship, by means of motor vehicles, or with the use of any
other means involving great waste and ruin;
o On occasion of any of the caiarnities enumerated in the preceding
paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic, or any other public calamity;
o With evident premeditation;
o With cruelty, by deliberately and inhumanly augmenting the
suffering of the victim, or outraging or scoffing at_ ~is person or
corpse.

The killing is not parricide or infanticide.

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 quanturi}.l 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 defens~
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).

Revised Manual for Prosecutors

205

I
I
I

4. Prosecution under the Human Security Act (RA 9372)


Under the Human Security Act, the following acts shall not be employed during the investigation/ interrogation of a person detained for the crime of terrorism
or conspiracy to commit terrorism:

I'

,.
I

__ ,..,,._

If the above acts were shown to have been committed, the evidence obtained
from said detained person resulting from such threat, intimidation, or coercion, or
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,
proce~ding, or hearing.

I
I
I
I
I
I
I

More importantly, the person or persons pr0ven t:o have committed the above
acts will be penalized under Sec. 25 of the Hunian Security Act in this wise:
a. Any person or persons who ~e threat, intimidation, or coercion, or who
inflict physical pain 0r torment, or mer.tal, moral, or psychologic:il pressure, which shal! 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 comm.it terrorism shall be guilty of an offense and
shall suffer the penalty of twelve years and one day to twenty years of
imprisonment.
b. .Wh_en death~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 infliction on him of such physical pain or torment,
. .or. as a consequence of the infliction on him of such mental, moral, or
psychological pressure, the penalty shall be twelve years and one day to
twenty years of imprisonment.

I
I
I
I
I

Threat
Intimidation
Coercion
Acts which will inflict any forni ofphysical pain or torment,_or mentf11,
moral, or psychological press~re, or which shall vitiate the detained
person's free-will .. - r . :;:,G-2.:,-~ -

~-

'.

5. Resort to the generic remedies for human rights violations


Since the act of torture, as discussed above, may take the form or include
punishable acts like illegal or arbitrary detention; unjust imprisonment or de!ention; or the infliction of various physical, emotional, or psychological injuries,
then torture as a consequence can be made a ~oundror a claim under the Victim
Compensation Act (RA 7309), as well as an independent action for damages

206

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

under Article 32 of the Civil Code, particularly on the ground of violation of the
freedom against cruel and unusual punishment and the freedom from arbitrary or
illegal detention.
C. DEALING WITH TORTURE UNDER PROCEDURAL LAW
1. Inadmissibility in evidence under the Constitution
Under the 1987 Constitution (Article III, Sec. I 2 (3)), one of the most
paramount procedural rule that the prosecutor should remember is that any
confession or admission obtained from a person under investigation through
torture shall be inadmissible in evidence against hi..-n. This principle of the
Constitution partakes of a Rule of Exclusion that, in contemplation of the
Rules of Court (particularly the Rules on Evidence).
The prosecutor must be prudent enough to confer with the client in 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 eliminated with certaint-y. 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 of justice.
2. Detection of torture at the inquest stage
Letter ofInstruction 621 (series of 1977) provides for a procedural mechanism by which torture caa be prevented very early in the prosecution process.
Sec. 6 (e) thereof pronounces that one of the functions ofthe inquest procedure
is to determine if maltreatment or other forms of torture have been committed
on the person arrested and to institute the necessary charges if any.
Clearly, the Prosecutor tasked to determine the legality of a warrantless
arrest and the propriety of keeping an accused under detention also has the
re~}ponsibility of seeing to it that the process of arrest and custodial investigation (which commences immediately at the point of arrest) is not vitiated by
acts of torture and other forms of maltreatment. The Prosecutor must ascertain
this by posing questions to the accused under such circumstances as to render
the query effective; it cannot be undertaken in a manner that would defeat the
intention of the law (e.g., in the presence of arresting officers from which an
accused claiming tortUfe can reasonably fear retaliation).
If torture is already detected at this stage, and supposing probable cause
for the legality of the arrest rests solely upon a confession extracted through
it, then the Prosecutor acting as inquest officer can immediately abort the
prosecution process, or overrule the plea for continued detention, or make a

Revised Manual for Prosecutors

207

I
I
I

I.

recommendation finding 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 of proper actions to proceed
against the perpetrators of torture.
. . .. .:. . .

')~--

. ;.. .,..,...;.. ,,,1,.<:'<""" ... '

. ,,

3. Treatment oft0,rlilr atth'! trial stage


.. . ...._~.- .~2~~~f";'~;,~~/t'~~: .

:r.

..

a. Administrative Mattef No.MI'J 90-4001(July14, 1995)


. - . -

I::.

'~

What.if torture, up until the point where the case goes to trial, remains
undetected?. Or if torture has been resorted to only at that point most
proximate t~ the trial date. where the accused is set to testify and must
therefore 1:>6 intimi~ted? :

I
I
I
I
I
I
I
I
I
I

Allegations of torture at the point of trial is still primarily the responsibility ofthe lawyertoyerifyand act upon accordingly. The continuation of
the trial of the ca.Se for which the person stands accused is not a bar to the
institution of administrative or criminal .actions against persons guilty of
perpetrating torture. However, if allegations of torture have beeit brought
to fore during the trial stage or~ indeed, in open court at the trial itself, an
obligation is also imposed on the judge to proceed with the trial with extra
caution to "prevent the constitutional guarantees [ag!linst t'1rturP-, force,
violence, threat, intimidation, or any other means which vitiate the free
will] from being reduced to futile platitudes". This much is mandated by
Adniinistrative Matter No. MTJ 90-4001 (July 14, 1995).
What does "extra caution" entail? This would entail the judge's taking
an active role in the ascertainment of the veracity of the claim of torture
or in the assurance that statements given in open court were not the result
of torture, even if no claim to that effect was raised. Whenever an admission or confession is introduced in evidence, the judge should personally
satisfy hims~lf that such were voluntarily given and not extracted through
force or intimidation.
2. People v. Castro (GR No. L-17465, August 31, 1964)
In the 1964 criminal case of People v. Castro, the Supreme Court 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.

.i
I

The judge is enjoined to assume an active role in the detection of


torture, so much so that he/ she is expected not only to address allegations

208

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

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 him/herself with mere
physical manifestations evidencing or indicating the possibility of torture.

3. People v. Chaw Yaw Shun G.R. L-19590, April 25, 1968


In Chaw Yaw Shun, the Supreme Court acknowledged that the mere
absence of external injury in the confossor's body does not destroy or
rule out any claim of maltreatment by the use of other scientific modes or
forms of torture. Vigilance, therefore,.should be exercised by the judge in
ascertaining that torture was not committed, whether or not such commission resulted in physical injuries.that ar~ ~asily de:ected.

III. PROSECUTING CASES OF ENFORCED DISAPPEARANCE


A. BACKGROUND

On the occasion of the Supreme Court's promulgation of the historic Rule


on the Writ of Amparo, the High Court had opportunity to expound on what
"enforced disappearances" mean. According to the Court, adopting the definition
advanced by the Declaration on the Protection of All Persons Agamst Enforced
Disappearance, there is a case of enforced disappearance wh~n the following
characteristics concur:
1. an arrest, detention or abduction of a person by a government official or
organized groups or private individuals acting with the direct or indirect acquiescence of the government;
2. the refusal of the State to disclose the fate or whereabouts of the person concerned;
3. or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of the law (Declaration on the Protection of All
Persons Against Enforced Disappearance. UN GAOR 471133, 18 December
1992, Third Preambular Clause).

Revised Manual for Prosecutors

209

I
I
I
I
I
I
I
I
I

Enforced disappearances, however, are per se unfamiliar creatures in the legal


terrain of the Philippine criminal justice system. There is no such crime found
in our statute books. Does it mean to say, then, that prosecutors faced with such
a case are left with no resort in law to vindicate the rights of the victims? How
does an agent of the criminal justice system go about employing the ordinary
mechanisms of redress provided in law to deal with an extraordinary case like
enforced disappearance?
B. REMEDIES AVAILABLE UNDER ORDINARY ACTIONS
1. Availment ofgeneric remedies for .human rights violations

a. Cases of enforced disappearance represent a violation of a person's:


l. right to liberty and security,
2. right not to be subjected tc enforced disappearance, a right recognized
by international human rights instruments, and
3. right not to be subjected to unlawful or arbitrary detention.
b.

2. Criminal actions

I
I

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 enforceddisappearance

.
l
1. Arbitrary Detention (Art. 124, Revised Penal Code)

~,

I
I
I
I
I
I

As such, the generic remedies for human rights violations as discussed


earlier in this manual can be availed of. Victims of enforced disappearance can seek compensation against perpetrators by way of an action for
damages under Article 32 of the Civil Co<le and from the Board of Claims
of the Department of Justice under the Victim Compensation Act.

a. Offender is a public officer or employee;


b. He detains a person;
c. The detention is without legal grounds. For tllls purpose, "without
legal ground" means either:
i. No crime was committed by the detained; or
ii. Th~e is no violent insanity of the detained person; or
iii. The person detained has no ailmehrwhich requires compulsory
confinement in a hospital.

210

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

2. Kidnapping and Serious Illegal Detention (Art. 267, Revised Penal

Code)

a. Offender is a private individual;


b. He kidnaps or detains another, or in any other manner deprives
the iatter of his liberty;
c. The act of detention or kidnapping must be illegal;
d. In the commission of the offense, any of the following circumstances is present:
i. The kidnapping lasts for more than 3 days;
ii. It is committed simulating public authority;
iii. Any serious physical injuries are inflicted upon the person
kidnapped or detained or threats to kill him are made; or
iv. The person kidnapped or detained is a minor, female, or a
public officer.
e. In addition, when the following qualifying circumstances are present when the felony is colllI!litted, the highest imposable penalty
shall be imposed:
Purpose is to extort ransom;
u. When the victim is killed or dies as a consequence of the detention;
iii. When the victim is raped;
iv. When victim is subject~d to torture of dehumanizing acts.
1.

C. REMEDIES AVAILABLE FOR INFORMATION GATHERING


1. Rationale
The first and most pragmatic step in dealing with a case of enforced
disap}pearance is information-gathering. A defining characteristic of enforced
disappearance is the sudden abduction of a person (either under the guise
of an ostensibly lawful arrest or through machinations designed to carry out
the abduction without witnesses and with impunity) under circumstances that
would incapacitate that person's family or loved ones from knowing where to
look for him/ her afterwards. The incapacity can be brought about by factors
such as the deliberate assumption of anonymity of his/ her abductors (through
removal of identifying nameplates/ insignias of home units, etc.), deliberate
non-disclosure of his/ her detention place, or the cutting off of alf means of
communication to and from the abducted person.

Revised Manual for Prosecutors

211

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

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 of territorial jurisdiction, to whom court
processes will be served, etc. The first step is therefore to gather as much
illformationasone ca.llso that the victim's family or loved ones can institute
.. ,. . the necess.ey action''and avail of the necessary remedy more effectively.

. . , ,._:;.-:_'.

. 2. Right to information; extent thereof


The right to information is a right recognized by the Universal Declaration
of Human Rights when it provides: "Everyone has the right to freedom of
opinion and expression; this right includes freedom to hold opinions without
interference and to seek, receive and impart information and ideas through
any media and regardless of frontiers" (U.N. GAOR 217 A (III), I 0 December
1948, Art. 19).
The Constitution also provides: "The right of the people to information on
matters of public concern shall be recognized. Access to official records and
to documents and papers pertaining to official acts, transactions, or decisions,
as well as to government research data used as basis for policy development,
shall be afforded the citizen, subject to such limitations as may be provided
by law" (Art. III, Sec. 7).
The incorporation of the right to information in legal instruments and
documents only goes to prove that it is infused with a public policy dimension
and enjoys the full recognition and protection oftqe law. The right is primarily predicated on the inherent entitlement of the people to be vanguards of
governance, to be cogniz.ant of matters that their elected leaders are undertaking. The democratic institutions of the country would be rtndered infirm if the
people cannot be given the power to hold their leaders accountable through
transparency put in place by the laws..
mechanisms of
/
./

On a smaller scale, however, the right to information can also be invoked


not only for purposes of political governance but also as a safeguard against
official abuse. Pertinent to cases of enforced disappearance, the almost plenary
right to information can be employed to compel access to and disclosure of
official data that can be helpful in the location of a person involuntarily disappeared. This can include access to official police blotters and military records,
as well as records of commitment of persons to detention facilities. Owing to
the broad and sweeping language of the constitutional provision guaranteeing
the right to information, access to official records, especially those that would
aid in the resolution of cases of enforc~d disappearance, is the general rule,
and any limitation thereto can only be imposedby direct legal prescription.

212

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

3. Right to information; limitations thereto

The Implementing Rules and Regulations of the Code of Conduct and


Ethical Standards for Public Officials and Employees (RA 6713 and its IRR)
states the limitations provided by law with regard to access to official records,
data, and information. In a gist, the limitations provided in the law all pertain
largely to already-established areas of governance where wide and open public access would. result in detrimental consequences to national security, the
protection of the rights of persons, and foreign affairs. In the following cases,
acce~s to information is restricted, as provided in Rule IV, Sec. 3 of The
Implementing Rules of RA 6713:
a. such information, record or document must be kept secret in the interest
of national defense or security or the conduct of foreign affairs;
b. such disclosure would put the life and safety of an individual in imminent
danger;
b. the information, record or document sought falls within the concepi:s of
established privilege 0r recognized exceptions as may be provided by law
or settled policy or jurisprudence (e.g., closed door cabinet sessions, executive sessions of Congress, deliberations of the Supreme Court, trade,
secrets, and the like);
c. such information, record or document comprises drafts of decisions, orders, rulings, policy decisions, memoranda, etc.;
d. it would disclose information of a personal nature where disclos,ure
would constitute a clearly unwarranted invasion of personal privacy (e.g.,
patient-physician privilege):
e. it would disclose investigatory records complied for law enforcement
purposes, or information which if written would be contained in such
records, but only to the extent that the production of such records OI}
information would:
1. interfere with enforcement proceedings;
2. deprive a person of a right to a fair I.rial or an impartial adjudication;
3. disclose the identity of a confidential source and, in the case of a record
compiled by a criminal law enforcement authority in the course of a
criminal investigation, or by an agency conducting a lawful national
security intelligence investigation, confidential information furnished
only by the confidential source; or
4. unjustifiably disclose investigative techniques and procedures; or

Revised Manual for Prosecutors

213

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

5. it would disclose information the premature disclosure of which


would:
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 institutio.n; 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 (t) (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 mak~ such
disclosure on its own initi<!tive prior to takmg :final official action
on such proposal.

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
bee~ 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 iuvocation
of national defense and security to give primacy to the !ight to information
in cases where violation of the right to life, liberty, and security are being
brought to fore.

4. Availing ofthe Rule on the Writ ofHabeas Data (A. M. No. 08-1-16-SC, .Tanuary
22, 2008)

1. Definition and Purpose


Accorciing to the rule itself, the writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is
violated or threatened by an unlawful act or omission of a public official
or employee, or of a private individual or entity engaged in the gathering,
collecting or storing of data or information regarding the person, family,
home and correspondence of the aggrieved party.

I
I

As a new prerogative writ, Habeas Data became available as a result


of the Supreme Court-convened National Consultative Summit. Habeas
Data seeks to complement all the other remedies available under the law

214

Revised Manual for Prosecutors

I
I
I
I

to protect the rights of persons. 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 famiJy and loved
ones of disappeared persons cannot be derailed i11 their search by official
refusal to open public records because of the Writ of Habeas Data

I'
I
I
I
I
I
I
I
I
I
I
I
I
I
I

2.

By whom.filed
The petition for a Writ of Habeas Data can both be a preventive and a
curative remedy:
a. As a preventive remedy, it can be filed by:

any person whose life, liberty, or security is being threatened, or

who is being subjected to political harassment

Such persons can compel the disclosure of official recoids so


that any misiuformati0n regarding his or her person can be
corrected or expunged.

For example, a person may file a petition so that political


harassments and threats to his or her life, liberty, or security
on the basis of alleged information regarding affiliation with
a terrorist group can be averted. In such a case, any arrest effected against him or her will no longer have any legal basis
because the courts have already ordered rectification of his or
her records which are in the custody of officials ofthe State.

b. As a curative remedy, however, like in cases, where a person has alre2dy been abducted and involuntarily disappeared, the petition may
be filed by:

his or her immediate family, or

collateral relatives, or

Revised Manual for Prosecutors

215

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

any member of the community (in this particular order)


o

Such persons can seek information regarding the status of the


disappeared person, where he or she may have been detained,
or information about him or her in the official records that may
shed light on the reason for the abduction and eventual disappearance.

For purposes of filing a petition for issuance of the Writ of


Habeas Data, no docket fees shall be required to be paid by
any petitioner.

3. Allegations in the petition


The petition for a Writ of Habeas Data should contain the following
allegations and jurisdictional information:
a. The personal circumstances of the petitioner and the respondent;
b. The manner the right to privacy is violated or threatened and how it
affects the right to life, liberty or security of the aggrieved party;
c. The actions and recourses taken by the petitioner to secure the deit.a or
information;
d. The location of the files, registers or databases, the government office,
and the person in charge, in possession or in control of the data or
information, if known;
e. The reliefs prayed for, which may include the updating, rectification,
--'- suppression or destruction of the database or information or files kept
by the respondent. In case of threats, the relief may include a prayer
for an order enjoining the act complained of; and
f. Such other ~elevant reliefs as are just and equitable.
/'

4. Filing of the- return

The power of the Writ to aid in the quest of families and loved ones
in searching for disappeared persons can be seen when it is ordered to be
answered.
Once the writ is ordered served, it can be enforceable anywhere in the
Philippines against the person or persons named in the summons. Such
person or persons will then be compelled to file a verified return within
5 days from service of the writ, on pain of being cited for contempt of
court.
....
.:. '

216

:.

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

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 haw~ 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

In case of respondent in charge, in possession or in control of the


data or information subject of the petition:
o

a disclosure of the data or informat1on about the petitioner,


the nature of such data or information, anc:I the purpose for its
collection;

o the steps or actio!ls taken by the respondent to ensure the security and confidentiality of the data or information;
o

the currency and accuracy of the data or information held;


and,

Other allegations relevant to the resolution of the proceeding.

To emphasize the urgency with which the Writ of Habeas Data should
be granted in meritorious cases, the rules provide that dilatory motions
shall be prohibited and that the nature of the hearing on the petition shall
be summary.

5. Relief that may be granted


Once submitted for decision after hearing, judgment on the petition
should be rendered within I 0 days. Note that even before submission of
the case for resolution by the courts, Habeas Data has already been able to
serve one of its functions right from the time the State official/s concerned

Revised Manual for Prosecutors

217

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

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.
However, when such information as disclosed has been established
.by. substantial evidence to be deleterious to the interest of the petitioner
: ill protecting-his or her right to life~ liberty, and security, or that of his or
her loved ones, then the court shall render judgment granting any of the
following reliefs:
o enjoinment of an act complained of
o deletion, destruction, or rectification of erroneous data or information
6

other equitable reliefs as may"be warranted by each case.

How can this kind of judgment be treated as a human rights remedy?


To illustrate, a disappeared person who, as disclosed by official records
surfaced during the hearings for the petition, is suspected of being a !Ilember of a terrorist group, can be released with greater facility from the mom~nt the whereabouts of his or her detention is discovered because there
wili ~e no more b"sis for detaining him/ her or withholciing information
regardii::g his/her tactical interrogation in case such is being conducted.

D. iIBMEDIES AVAILABLE FOR COMPELLING OFFICIAL ACTION OR


RESPONSE

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 pl~nary 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 informatfon leading
to the location of the disappeared person and/ or the rectification of his or
her dossier in the custody of the police and the military that would erase the
justification for his or her being subjectfd to surveillance, investigation, or
outright harassment.
... '

218

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

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 will remain just that if official response or action cannot be had
on the basis thereof. The location of the detention facility where a disappeared
person is being held may have been disclosed via Habeas Data, but such information will remain useless if offici~ls concerned will continue to refuse to
release the victim on some ground.
In these cases, official action or response needs to be compelled. Under
the legal firmament of the Philippines, such can be done through em!lloyment
of two procedural rules directly mandating the produc6on of the body of a
disappeared person, or compelling State officials to undertake measures to
actively determine his or her whereabouts.

2. Availing of the Rule on the Writ of Habeas Corpus (Rules of Court, Rule
102)
(1) Nature and Purpose
The Rules of Court provide for a special proceeding kt!own 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
ascert}lined that he or she is being kept under confinement on some illegal
ground as to amount to an unlawful 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 of his liberty;

Revised Manual for Prosecutors

219

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

b. The officer or name of the person by whom he is so imprisoned


or restrained; or, if both are unknown or uncertain, such officer
or person may be described by an assumed appellation, and the
person who is served with the writ shall be deemed the person
intended;
c. The place where he is so imprisoned or restrained, if known;
d. A copy of the commitment or cause of detention of such pe!son, if
it can be procured without impairing the efficiency of the remedy;
or, if the imprisonment or restraint is without any legal authority,
such fact shall appear.
(3) When writ denied; wh'.m granted.

1. After the hearing on the petition, the court shall order the immediate
release from confinement 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.
On the other hand, if it appears:

a. that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judgP;, or
a. by virtue of a judgment or order of a court of record, and
b. that the court or judge had jurisdiction to issue the process, render
the judgment, or make the order,
the writ shall not be allowed; or if the juristj.iction appe'1.rs after the
writ is allowed, the person shall not be discharged by reason of any
informality or defect in the process, judgment, or order.
(4) Limitatians of the Writ
The petition for a Writ of Habeas Corpus is an effective remedy to
compel official action in the form of the production of the body of a disappeared person and the justification before a court of law of the legality of
the person's continued confinement.
However, this presupposes that the family and loved ones of the
disappeared person have already pinpointed the disappeared person's
whereabouts, whether serendipitously, by asking around, or by availing
of the mechanisms of information-gathering as discussed in the previous
section. In cases where the information is still a bit sketchy, or not supported by enough admissible evidence, a petition for a Writ of Habeas
Corpus may nonetheless be filed out ~f the cfesperate need to locate the

I
I
I
I

220

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

disappeared person, and on the faint hope that compelling State officials
to explain themselves before the courts would yield some positive result.
However, as experience would have it, habeas corpus petitions are
often stonewalled and derailed by the simple expedient of denial on the
part of the respondent-State officials, especially if the evidence that they
have the disappeared person in custody is not overwhelming enough. This
is not surprising considering that under Rule l 02 of the Rules of Court,
the respondent official suspected to have under custody th~ disappeared
person need only to state the following matters in his or her return to the
court:

1. Whether he has or has not the party in his custody or power, or


under restraint;
2. If he has the party in his custody or power, or under restraint, the
authority and the true and whole cause thereof, set forth at large,
with a copy of the writ, order, execution, or other process, if any,
upon which the party is held;
a. If the party is in his custody or power or is restrained by him,
and is not produced, partkularly the nature and gravity of
the sickness or infirmity of such party hy reason of which he
cannot, without danger, be brougilt before tbe court or judge;
b. If he has had the party in his custody or power, or under
restraint, and has trausferred such custody or restraint to
another, particularly .fo whom, at what time, for what cause,
and by what authority such transfer was made.
Note that the premise of all the above-mentioned allegations in the
return is that the official being accused of detaining a disappeared person
actually has such person under his or her custody. If this fact is already
controverted by the allegations in the return, then the hearing for the petition for a Writ of Habeas Corpus comes to a virtual standstill. There is no
other remedy available for the complainant under the Rules of Court that
could override the denial of the State official; no mechanism by which
such denial may be r~quired to be substantiated; no way for the official to
be compelled to do anything besides.
This is why, during the National Consultative Summit sponsored by
the Supreme Court, one of the resounding recommendations to address
the spate of enforced disappearances in the country is to fortify the habeas
corpus writ to compel State officials to go beyond a mere denial and to
undertake positive measures to aid in the location of a disappeared person.

Revised Manual for Prosec:.Jtors

221

I
I
I
I
I
I
I
I
I
I
I
I
I
I
1

I
I
I
I

The next section is dedicated to this new remedy to complement the Writ
of Habeas Corpus.

3. Availing of the Rule on the Writ ofAmparo (A.M. 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.

11.

a public official or employee, or


a private individual or entity.

b. It shall cover extra-legal killings and enforced disappearances or


threats thereof.
As a relatively new remedy, Amparo has been viewP;d as a procedt'..Tal rule that directly seeks to remedy cases of ei1forced disappearances a.11d extra-legal killings. Its ultimate objective is much broader
than that o~ habe~s corpus. Whereas hab~as corpus merely seeks to
have the body of a disappeared person produced before the court or
his or her continued Cleprivation of liberty justified, Amparo vests
the court with an almost plenary power to grant whatev~r rem.edy
is available and equitable under the law with a view to protecting a
perscn from actual or threatened violation of the right to life, liberty,
or security.
(2) By whom filed
The petition for a Writ of Amparo mlay be filed by the aggrieved party
or by any qualified person or entity in the following order:
a. Any member of the immediate family, namely: the spouse, children
and parents of the aggrieved party;

b. Any ascendant, descendant or collateral relative of the aggrieved party


within the fourth civil degree of consanguinity or affinity, in default of
those mentioned in the preceding paragraph; or
11-

.,,:.;.

,._

c. Any concerned citizen, organization, association or institution, if


there is no known member of the immediate family or relative of the
aggrieved party;
222

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
1
I
I
I
I
I
I
I
I

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 paramoun~ importance of the rights being protected by the writ, no
docket fees need be paid in court.
(2) Allegations in the petition

The petition shall be signed and verified and shall allege the following:
a. The peronal circumstances of the petitioner;
b. The name and personal circumstances of the respondent responsible
for the threat, act or omission, or, if the name is unknown or uncertain,
the respondent may be described by an assumed appellation;
c. The right to life, liberty and security of the aggrieved party violated
or threatened with violatioP 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;
d. The investigation conducted, if any, specifying the names, personal
circumstances, and addresses of the investigating authority or individuals, as well as the manner a.nd conduct of the investigation, together
with any report;
e. The actions and recourses taken by the petitioner to determine the fate
or whereabouts of the aggrieved party and the identity of the person
resppnsible for the threat, act or omission; and
f.

The relief prayed for. The petition may include a general prayer for
other just and equitable reliefs.

(4) Filing of a return

Compared to the return required to be filed in answer to a petition for a


Writ of Habeas Corpus, the return of the respondent (which must be filed
within 72 hours from service) is required to contain allegations that are much
broader in scope.

Revised Manual for Prosecutors

223

I
I
I
I
I
I
I
I
I
I
I
I
I
l
I
I
I
I
I
I

In sum, the respondent in an amparo proceeding is given a heavier burden


not only tojustify the continued detention of a disappeared person under custody if such were the case, but also to undertake positive measures to locate
the whereabouts of the victim in case the respondent does not have him or her
under custody.
In short, the respondent cannot simply deny that he or she has the disap-

peared person under custody; he or she also has to prove: to the satisfaction
of the court that all reasonable means have been employed to ascertain that
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 rr~ust 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;
b. The steps or actions taken by the respondent to determine the fate or
whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission;
c. All relevant information in the possession of the respondent pertaining
to the threat, act or omission against the aggrieved party; and
d. If the respondent is a public official or employee, the return shall further state the actions that have been or will still be taken:
to verify the identity of the aggrieved party;
11. to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the
prosecution of the person or persons respo11$ible;
iii. to identify witnesses and obtain statements from them concerning
the death or disappearance;
1v. to determine the cause, manner, location and time of death or
disappearance as well as any pattern or practice that may have
brought about the death or disappearance;
v. to identify and apprehend the person or persons involved in the
death or disappearance; and
vi. to bring the suspected offenders before a competent court.
e. The return shall also state other matters relevant to the investigation,
its resolution and the prosecutio~ of the case.
i.

224

Revised Manual for Prosecutors

I
I
I
I
I
I
I

I:

f.

A general denial of the allegations in the petition shall not be allowed.

(5) Interim reliefs that may be granted


Also, unlike in the case of habeas corpus, a petitioner under amparo
may avail of certain remedies even during the course of hearing the petition, and these interim reliefs themsebes partake of protective measures
that may already achieve the purposes of the writ even before judgment
has been ordered. The following are the interim reliefs provided in the
rule:
1. Temporary Protection Order
The court, justice or judge, upon motion or motu proprio, may order
that the petitioner or the aggrieved party and any member of the immediate family be protected in:
(1) a government agency
(2) an accredited person
(3) a private institution capable of keeping

I
I
I

a~d

securing their safety.

With regard to these "sanctuaries" that shall harbor persons


to bf: protected in the interim, the Supreme Court shall accredit the persons and pfr;ate institutions that shall extend
temporary protection to the petitioner or the aggrieved party
and any member of the immediate family, in accordance with
guidelines which it .shall issue. The accredited persons and
private institutions shall comply with the rules and conditions
that may be imposed by the court, justice or judge.

1. Inspection Order
a. The court, justice or judge, upon verified motion and after due
hearing, may order any person in possession or control of a designated land or other property, to permit entry for the purpose of:
inspecting,
11. measunng,
111. surveymg, or
1v. photographing the property or any relevant object or operation
thereon.
i.

I
I
I
I

Revised Manual for Prosecutors

225

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

b. The motion shall state in detail the place or places to be


inspected.
c. It shall be supported by affidavits or testimonies of witnesses having personal knowledge of the enforced disappearance or where. . .
abouts of the aggrieved party.
.

....

..

,.

If the motion is opposed on the ground of national security or


of the privileged nature of the information, the court, justice
or judge may conduct a hearing in chambers to determine the
merit of the opposition.
11. The movant must show that the inspection order is necessary to establish the right of the aggrieved party alleged to be
threatened or violated.
. m. The inspection order shall specify:
1.

.. ;

(I) the person or persons authorized to make the inspection,


(2) the time, place and manner of making the inspection and
(3) may prescribe other con<litions to protect the constitutional
rights of all parties.
iv. The order shall expire five (5) days ~fter the date of its issuance, nnless 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, cilstody 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:
1.
11.

produce and
l
permit their inspection, copying or photographing by or on
behalf of the movant.

b. The motion may be opposed on the ground of national security or


of the privileged nature of the infomiation, in which case the court,
ju8tice or judge may conduct a hearing in chambers to determine
the merit of the opposition.
c. The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties . .:. '

:;

226

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I

4. Witness Protection Order


a. The court, justice or judge, upon motion or motu proprio, may
refer the witnesses to the Department of Justice for admission to
the Witness Protection Program (RA 6981)
b. The court, justice or judge may also refer the witnesses to:
i. other government agencies,
ii. accredited persons,
iii. or private institutions capable of keeping and secufing their
safety.

IV.

PROSECUTING CASES OF EXTRA-LEGAL KILLING


A. BACKGROUND

Perhaps the most abhorrent crime is that which places in jeopardy the most
sacred thing that 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 employmec.t of summary or arbitrary methocis of
execution.
In the Philippines, the problem was fir::;t give& 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 EnforcedDisappearances 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.

l
The National Consultative Summit itself was impelled by the recent spate of
widespread killings and summary executions of members of progressive political
groups, mostly in the countryside, and journalists widely identified as being critical of incumbent national and local officials.

~
~

II

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

Revised Manual for Prosecutors

227

I
I

or treatment that is neither commensurate to whatever transgression has been


committed nor sanctioned by the criminal justice system of the country.
The defining characteristic of extra-legal killings is the fact that they are
committed in a summary, arbitrary, and sometime surreptitious manner to ensure impunity. Oftentimes, cases of extra-legal killings arise out of prior cases
of enforced disappearances - the persons abducted and from whom nothing was
ever heard again turn up in s0me lonely lot, lifeless and bearing signs of physical
maltreatment and abuse. It is therefore not easy to deal with such cases, because
there are instance;:; where the fact of extra-legal killing will be recognized too late
and only after the ghastly murder has been committed. How, then, can the Public
Prosecutor be in the best position to corfront an issue as complex as extra-legal
killing?

I
I
I
I
I
I
I
I
I
I
I
I

B. AVAILING OF THE WRIT OF AMPARO AS A PROTECTIVE


MEASURE
The remedy of the Writ of Amparo is broad and encompasses not only the
compulsion of State officials to divulge information leading to the surfacing of a
disappeared per:;on as discussed in the preceding section, but also the provision
cf whatever protective remedy may be warranted, available, and equitable under
the law. Indeed, the literal mear1ing of the origin of"the word "amparo" (i.e.,
amparar in Spanish, meaning "to protect") evince~ 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 avaiiment of the remedy of the W'rit of Amparo under t4e 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 uf 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 sce!lario would be that the respondent can be compelled
to declare for the record that there exists no legal gi:ound for the petitioner to be
subjected to any kind of apprehension, arrest, or interrogatfori because he or she
does not appear upon official records to be suspected of any wrongdoing.

I
I
I
I

228

Revised Manual for Prosecutors

I
I
I
I
I
I
I

I
I

Also, and perhaps more importantly, the Writ of Amparo 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 INFORMATION-GATHERING
The remedies discussed above should be employed immediately after a person
has been abducted, arrested under questionable circumstances, or has disappeared
without warning. Following the procedures as outlined in the preceding part on
Enforced Disappearance, the family and loved ones of a person who iias suddenly
disappeared should avail of all available information-gathering mechanisms like
resort to requests for information from official agencies, or resort to the petition
for a Writ of Habeas Data. This information-gathering stage is necessary to ascertain the condition and whereabouts of a disappeared person. In the process, one of
the unfortunate information that may be unearthed is the fact that the disappeared
person has been the victim of extra-legal killing.

D. AVAILMENT OF GENERIC REMEDIES FOR HUMAN RIGHTS VIOLATIONS

~
i

When the extra-legal killing has been attended by violation of any of the civil
and political rights and liberties enumerated in Article 32 of the Civil Code (e.g.,
the right not to be subjected to illegal or arbitrary detention, or cruel and unusual
punishment), an action for damages may be maintained. As explained in Part II of
this Manual, this is without prejudice to the claiming of damages of the kind that
is deemed instituted with every criminal action, supposing the act complained of
also amounts to a punishable felony (which extra-legal killing undoubtedly is).
In addition, since the Victim Compensation Act expressly recognizes the right
of compensation should a violent crime be committed which resulted in death,

Revised Manual for Prosecutors

229

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

then the heirs of the victim can also file a claim before the Board of Claims of the
Department of Justice.

E. PROSECUTION UNDER THE HUMAN SECURITY ACT


The Human Security Act, as already explained earlier, provides that, "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 ( 12)
years and one day to twenty (20) years ofimprisonment. 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 infliction on
him of such physical pain or torment, or as a consequence of the infliction on him
of such mental, moral, or psychological pressure, the pena1ty shall be twelve ( i 2)
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 qnalifi~s as an
extra-legal killirig Lcrause there is a political dimension to the prior arrest of the
person, but tb.e person was later on subjected to a death that was not sc.nctioned by
the law, thereby qualifying the !ci!ling as extra-legal. Whoever is responsible for
the physical maltreatment that resulted in the extra-legal killing may be prosecuted
directly under the Human Security Act provisions, with the penalties imposable
as quoted above.
F. CRIMINALACTIONS

Extra-legal kiliings 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 nature,
and despite the perceived involvement of State offi.dals 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 of the aggravating circumstances of taking advantage of public position, lack of provocation,
nocturnity, being committed by a band, evident premeditation, taking advantage
ofsuperior strength; or treachery/ alevosia

I
I
I
I

230

Revis.ed Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

V.

PROSECUTING CASES OF INVOLUNTARY DISPLACEMENT


A. BACKGROUND

The liberty of abode and of freedom of movement is one of the fundamental


rights guaranteed by the Constitution. It is provided therein that "the liberty of
abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public safety, or public health,
as may be provided by law." (Article III, Sec. 6)
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 of livelihood, culture,
and physiology.
Concomitant to this right to settle dcwn, however, is also the freedom to
change the same voluntarily. In the constitutional provision just quoted, the only
restriction to every person's co11stitutionally protected liberty of movement are
issues of national security, public safety, or public health; and even then, such
restrictions must be laid down explicitly by legislation.
These two intertwining rights !o abode and movement is inherent in one's
right to liberty. The rights and privileges accorded to a citizen will be seriously
impaired if he/ she is prevented from choosing a permanent place of residence
in which one, in his/her personal opinion, is in the best position to exercise such
rights and fulfill their corresponding duties.
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 :llbode 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 "hamletting", or the saturation of a local village or area by State
officials for strategic rr.ilitary 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
proceeded against accordingly.

Revised Manual for Prosecutors

231

I
I
I
I
I
I
I
I
I
I
I
I
I
I

B. GUIDELINES. IN THE DELIMITATION OF THE RIGHT OF ABODE


AND RIGHT TO FREEDOM OF MOVEMENT
In the celebrated case of Villavicencio v. Lukban, 39 Phil. 778 (1919), women
arrested in the City of Manila by Mayor Lukban for being employed in houses of
. il_l repute were deported against their will to Davao. In doing so, Mayor Lukban
justified his act using the police power prerogatives oflocal government officials.
In striking down the act as unconstitutional for being violative of the right of
abode and freedom of movement, the Supreme Court had occasion to lay down
the paramount guideline in the conduct of any official act that would have the
effect of delimiting the people's right to abode and freedom of movement: th~.t
. there must be a law authorizing the same. '!'he Court asseverated in this wise:
"Alien prostitutes can be expelled from the Philippine Islands in
confof!Ility wiih an Act of Congress. The Governor-General can order
the eviction of undesirable aliens after a hearing from the Islands. Act
No. 519 of the Philippine Commission and Sec. 733 of the Revised
Ordinances of the City of Manila provide for the conviction and punishment by a court ofjustice of any person who is a common prostitute.
Act No. 899 authorizes the return of any citizen of the United States,
who may have been convicted of vagrancy, to the homeland. New York
and other States have statutes providin~ for the commitment to the
House of Refuge of women convicted of being common prostitutes.
Always a law! Even when the health authorities compel vaccination,
or establish a quarantine, or place a leprous person in the Culion leper
colony, it is done pllrsuant to some law or order. But one can search
in vain for any law, order, or regulation, which even hints.at the right
of the Mayor of the City of Manila or the chief of police of that city
to force citizens of the Philippine Islands - and these women despite
their being in a SP-nse lepers of society are nevertheless not chattels but
Philippine citizens protected by the same constitutional guaranties as
are other citizens - to change their domicile from Manila t~ another
locality. On the contrary, Philippine penal law specifically punishes
any public officer who, not being expressly authorized by law or regulation, compels any person to change his residence."

I
I
I
I

As such, unless the forcible evacuation and relocation of people could be


justified without cavil of doubt by exigencies of national security, public safety,
or public health, these acts cannot be undertaken without express support in law.

C. REMEDIES AVAILABLE FOR VIOLATION

1. Action for damages under the generic


violations

232

rt:medie~

.(or human rights

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

(1) Article 32 of the Civil Code, as discussed earlier in this manual, expressly

recognizes that the violation of the right to abode and freedom of movement is an act that would warrant compensation by way of moral and
exemplary damages.
(2) This is without prejudice to whatever civil action for damages may be
maintained as a consequence of the criminal act to which the violation
would amount.

2. Criminal action/or Expul.<o:ion (Art. 127, Revised Penal Code)


a. The felony of expulsion as punished in the Revised Penal Code has the
following elements:
1. Offender is a public officer or employee;
2. He either expels any person from the Philippines; or compels a person
to change residence;
3. Offender is not authorized to do so by law.

3. Criminal action for Grave Coercion (Art. 286, Revised Penal Code)
( 1) When the perpetrator of an act violative of thF: right of abode and freedom

ot movement is not a public officer, such act would qu<"lify as grave coercion punishable by the Revised Penal Code. The elements of the felony
are:
1. A person prevented another from doing something not prohibited by
law, or that he compelled him to do something against his will; be it
right or wrong;
2. The prevention or compulsion be effected by violence, threats or intimidation; and
3. The person that restrained the will and liberty of another had not the
authority of law or the right to do so, or in other words, that the restraint shall not be made under authority of law or in the exercise of
any lawful right.

VI. GENERIC REMEDIES FOR HUMAN RIGHTS VIOLATIONS


A. PRESENT CONTEXT
Currently, human rights violations are not given particular and direct treatment under the law. As it were, the multifarious ways by which a person's human
rights may be violated are addressed by way of distinct ~riminal actions that may
be instituted whenever particular acts fall within the ambit of the law punishing
such. Their generic character means that these remedies may be availed of in

Revised Manual for Prosecutors

233

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

almost all acts amounting to a violation of human rights, including the particular
cases of human rights violations given treatment in this. However, two remedies,
one under the general civil law on damages and the other as provided in special
law, stand out as among the instances where the violation of human rights is
treated as a wrongful act warranting redress.

B. ACTION FOR DAMAGES UNDER THE CIVIL CODE (ARTICLE 32)


1. Nature and quantum of evidence required.

Under Article 32 of the Civil Code, an independent action for damages


may be maintained for the violation of a person's civil and political rights.
It being an independent action, it can be instituted separately from, and

without prejudice to the filing of, a criminal action in cases where the violation would also qualify as a criminally punishable act."
Further, it being a civil action, the quantum of evidence required for it to
b~ granted by the courts is mere preponderance of evidence.

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 i~npeded or impaired.

3. Again:it whom filed.


Any public officer or employee or any private individual.

4. Grounds to be alleged (elements of ccuse of action).

234

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:

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
'

o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o

Freedom of religion
Freedom of speech
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 of law
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 scc.:ieties for pmposes not contrary to law
The right to take part in a peaceable assembly and petition the government for redress of griev~mces
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 hir.:iself 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
behalf;
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

That as a consequence of such obstruction, defeat, violation, impediment


or impairment, the person bringing suit has sustained actual and moral
injuries, provided, that if such obstruction, defeat, violation, impediment
or impairment was done in a wanton, reckless, and malicious manner,
exemplary damages may rightfully be claimed and awarded.

5. Reliefthat may be granted.


The victim filing the complaint may be indemnified at the discretion of
the courts by way of moral damages and, in cases warranting it, exemplary
damages.

Revised Manual for Prosecutors

235

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

C. FILING A CLAIM BEFORE THE BOARD OF CLAIMS OF THE

DEPARTMENT OF JUSTICE UNDER THE VICTIM COMPENSATION


ACT (RA 7309)

1. Legal basis
a. A claim to be filed before the Board of Claims of the Department of Justice
is a right given by law under the Victim Compensation Act enacted in
1992.
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 of the National Treasurj, the amount of :five pesos set aside
from each filing fee in every civil case filed in court, 1% of net earnings of
PAGCOR and 1% of the proceeds of the sale of military camps in Metro
Mmila. (Title L Sec. 1 (e), IRR of RA 7309).

By whom filed.
o

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
1.:harged;

any victim of arbitrary or illegal detention by the authorities as defined


in the Revised Penal Code :mder a final judgment of the court; and

any person who is a victim of violent crimes such "violent crimes"


being defined by the law as including:
rape; or
0 offenses committed with malice which resulted in death or serious
physical and/or psychological injuries, permanent incapacity or
disability, insanity, abortion, serious trauma; or
D committed with torture, cruelty or barbarity.
0

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:
- '
~

236

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

-I
I

In case of a person who was unjustly detained and released without


being charged, he must provide the following:
~

a certified true copy of the judgment of acquittal;


certified true copies of the commitment order and release from
confinement by the jail warden or prison authority concerned.

any proof to show that he was unjustly detained without being


charged.

In case of a victim of arbitrary or illegal detention by authorities as


defined in the Revised Penal Code under a final judgment of the court,
he must provide the following:
~

certified true copy of the final judgment.

o In case of a person who is a victim of violent crimes, he must provide


the following:
~

any evidence that would prove that he is a victim of violent crimes


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 fo11owing:


~

~
~
~

Death certificate of the person entitled to an award or gov(.,rnment


doctor's certificate of incapacity;
Marriage certificate if claimant is the spouse;
Birth certificate/s if claimant is a child/children; or,
Proof of relationship that he/she is a parent, brother or sister.

Procedure for processing of claims (Title III, Sec 3, IRR of RA 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;

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;

o The Board shall resolve the claim within thirty working days after the
filing of the application; and,

Revised Manual for Prosecutors

237

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Within fifteen days from receipt of the resolution of the Board, an


aggrieved claimant may appeal to the Secretary of Justice whose decision shall be final and executory.

Time period(Title Ill, Sec. 1, IRR of RA 7309)


o

A claim under the Victim Compensation Act should be brought within


6 months from being !eleased.from imprisonment or detention, or

o Within 6 months

fr~m

the date the victim suffered damage or injury.

Relief that may be granted


o Victims of unjust imprisonment or detention may be compensated
based on the number of months of imprisonment or detention and
every fraction thereof shall be considered one !nonth.
o Any compensation in such cases, however cannot exceed the amount
of P 1,000 pesos per month.
o

For all other cases, the maximum amount of compensation that may be
g:.:anted by !he Board of Claims shall not exceed PI0,000.00 pesos or
the amount rre~essary to reimburse the claimant the expenses incurred
for hospitalizatiori, medical treatment, loss of wage, loss of support or
other expenses directly related to injurv, whichever is lower.

o The availment of compensation under RA 7309 is without prejudice


to the right of the claimant to seek other remedies under existing laws
(therefore, the claimant can still claim damages or file any other action
when justified under law).

2.38

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Special Section on
Prosecuting Viol~tfons of the
National Internal Revenue Code (NIRC)
and Related Laws

I
~

I
I

Revised Manual for Prosecutors

239

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Special Section on Prosecuting Violations of the National Internal


Revenue Code (NIRC) and Related Laws

I.

POINTERS IN THE PROSECUTION OF TAX CASES


1. The prosecutor shall interview tax investigators and witnesses to gain an overall
understanding of the nature of the dispute, the facts giving rise to and surrounding
the dispute.
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 t}Je
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 appiicable to the set of facts as relayed
by the investigat~r and witnes:>es.
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

Revised Mar11.Aal for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

II.

INSTITUTION OF CRIMINAL CASES


The initiation of a criminal action involving violations of the National Internal
Revenue Code (NIRC) and other laws enforced by the Bureau of Internal Revenue
(BIR) must bear the authority/approval of the Commissioner of Internal Revenue.
All criminal actions wherein the amount of taxes and fees involved is One Million
pesos (Phpl,000,000.00) or more shall be filed before the Court ofTaxAppeals (CTA)
in the exercise of its original jurisdiction.
A. Prosecution of Criminal Actions
The prosecution of violations of the National Internal Revenue Code (NIRC)
or related laws may be conducted by the duly deputized legal officers of the BIR
under the direct control and supervision of the public prosecutor.

B.Bail
The recommended bail shall be in accordance with the DOJ Bail Bond
Guide.
C. Pre-trial
The parties may not be allowed to compromise the criminal liability or suhmit
the case to mediation, arbitration or other mode of alternative dispute resolution.
Ill. COMMON TAX OFFENSES (UNDER THE NIRC)
A. Sec. 254. Attempt to Evade or Defeat Tax. -Any person who willfully attempts
in any man.11er to evade or defeat any tax imposed under this Code or the payment thereof shall, in addition to other penalties provided by law, upon conviction
thereof, be punished by a fine not less than Thirty thousand pesos (P30,000) but
not more than One hundred thousand pesos (P 100,000) and suffer imprisonment
of not less than two (2) years but not more four (4) years: Provided, that the
conviction or acquittal obtained under this section shall not be a bar to the filing
of a civil suit for the collection of taxes.
1. Elements of Sec. 254:
a. A tax imposed under the Tax Code;
b. A person, natural or juridical, is liable to that tax; and
c. Such person willfu!ly attempts in any manner to evade or defeat any tax
imposed under the NIRC or the payment thereof

Revised Manual for Prosecutors

241

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

2. Tax evasion connotes the integration of three factors:


a. The end to be achieved, i.e., the payment of less than that known by the
taxpayer to be legally due, or the non-payment of tax when it is shown
that a tax is due;
b. An accompanying state of mind which is described as being "evil," in
"bad faith," "willful," or "delib~rate and not accidental;" and a course of
action ur failure of action which is unlawful. (Commissioner of Internal
Revenue vs. Estate of Benigno Toda, Jr. (GR No. 147188. September 14,
2004)
3. Documentary Evidence Required:
a. Securities and Exchange Commission (SEC) Certificate of Registration,
Articles of Incorporation & By-Laws or Articles of.Partnership (in case
of a corporation)
b. Corporate documents showing signature/ participation in the conduct of
business
~- General Information Sheet showing the identity of the corporate officers
as enumerated in Sec. 253 (d):
c. l. partner
c.2. president
c.3. general manager
c.4. branch manager
c.5. treasurer
c.6. officer-in-charge
c. 7. employees responsible for the violation
d. Tax Retwn of the taxpayer
e. BIR registration (Integrated Tax System [ITS]/RDO certification) to show
that the person is a registered taxpayer
f. Deeds of Conveyance & Certificate Authorizing Registration (in case of
One-Time Transaction [ONETT])
g. Contracts
}
h. Mayor's Permit
1.
Department of Trade and Industry (DTI) registration (if sole proprietorship)
J. Proof of income received or documents to show source of income
k. Any other documents showing participation/ involvement of other persons
in the commission of the offense
1. Third Party Certification (original or if unavailable, certified true copy)
m. Certification from the district, region or ITS showing existence or nonexistence ~f return
n. Fraudulent Scheme:
n. l. In case of ONETT, 2 or more Deeds of Conveyance

242

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

n.2. Using dumrny/ies


n.3. Using fake Certificate Authorizing Registration (CAR) to commit
tax evasion
o. Badges of Fraud:
o.1. intentional and substantial understatement of taxable income as
shown in the returns, financial statements, balance sheet, or deeds
of conveyance showing receipt of income (underdeclaration of income);
o.2. intentional and substantial overstatement (over-claiming) of deductions or exemptions as shown in returns, financial statements, balance sheets, invoices;
o.3. any act or recurrence of the foregoing or similar circuI!lsta.nces
(Vitug, citing Collector vs. Reyes)
o.4. recurrence of failure to perform legal obligation, i.e., obligation to
file return, pay tax, withhold tax, remit tax, supply correct and accurate information, refund excess taxes withheld on compensation
o.5. 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
o.6. securing or use of multiple or different TINs
o.7. in case ofONETT, price/consideration in the deed inconsistent with
return or the CAR, use of falsified CAR to transfer property
o.8. other schemes to prove intent tu evade tax
o.9 Computation showing substantial under-declaration or substantial
overstateme11t as stated in:

Sec. 248. Civil Penalties. - (B) In case of willful neglect to file


the return within the period prescribed by this Code or by rules and
regulations, or in case a false or fraudulent return is willfully made,
the penalty to be imposed shall be fifty percent (50%) of the tax or of
the deficiency tax, in case any payment has been made on the basis
of such return before the discovery of the falsity or fraud: Provided,
that a substantial underdeclaration of taxable sales, receipts or income, or a subJtantial overstatement or deductions, as determined
by the Commissioner pursuant to the rules and regulations to be
promulgated by the Secretary of Finance, shall ccnstitute prima facie evidence of a false or fraudulent return: Provided, further, That
failure to report sales, receipts or income in an amount exceeding
thirty percent (30%) of that declared per return, and a claim of deductions in an amount exceeding (30%) of actual deductions, shall
render the taxpayer liable for substantial underdeclaration ofsales,
receipts or income or for overstatement ofdeductions, as mentioned
herein.

Revised Manual for Prosecutors

243

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

B. Sec. 255.
Failure to File Return, Supply Correct and Accurate Information.,
Pay Tax Withheld and Remit Tax and Refund Excess Taxes Withheld on
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 (Pl0,000) and suffer imprisonment of not less than
one (I) year but not more than ten (10) years.

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 fil~s 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 (Pl0,000) but not more than Twenty thousand pesos
(P20,000) and suffer imprisonment of not less than one (1) year but not more than
three (3) years.
1. Elements of Sec. 255:
a. A person is required under the Tax Code, or by rules and regulations,
to pay any tax, make a return, keep any record, or supply correct and
accurate information;
b. At the tiPle or times required by law or rules and regulations;
c. Such person willfully fails to make such return, keep such record, or
supply such correct and accurate information, or withhold or remit taxes
withheld, or refund excess taxes withheld on compensation; and
d. As a result, such person failed to pay the correct tax.

2. Documentary Evidence Required:


a. SEC Certificate of Registration, Articles of Incorporation & By-Laws or
Articles of Partnership (in case of a corporation)
b. Corporate documents showing signature/participation in the conduct of
business
c. General Information Sheet showing the identity of the corporate officers
as enumerated in Sec. 253 (d):
c. l. partner
c.2. president
c.3. general manager
c.4. branch manager
c.5. treasurer

244

Revised Manual

fo~

Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

d.
e.
(
g.
h.
i.

J.
k.
1.

m.
n.
o.
p.
q.
r.
s.
t.

u.

v.
w.
x.
y.
z.
aa.

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 of conveyance & Certificate of Authorizing Registration (in case of
One-Time Transaction [ONETT])
Contracts
Mayor's permit to show that business is in operation
DTI registration (if sole proprietorship)
DTI or SEC records to show existence of business operation
Proof of income received or document" to show source of income
Any other documents showing participation/ involvement of other 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 pro0f that income is received
First I Second I 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 and1or private entities to show
mcome
Financial statements
Alpha List from district, Withholding Tax Division or Large Taxpayer
Service
Computation of tax liability

3. Expenditure Method/Net Worth Method - requirement of opening net


w01th

Revenue Audit Memorandum Order No. 1-2000

4. Revised Penal Code Provision on Malversation in relation to Willful


Failure to Remit
"Art. 217. Malversation of public funds or property. - Presumption of
Malversation. -Any public officer who, by reason of the duties of his office,
is accountable for public funds or property, shall appropriate the same or shall

Revised Manual for Prosecutors

245

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

take or misappropriate or shall consent, through abandonment or negligence,


shall permit any other person to take such public funds, or property, wholly or
partially, or shall otherwise be guilty of the misappropriation or malversation
of such funds or property xxx xxx xxx"
a. The provisions of Art. 217 shall apply to:
a. I. Private individuals who,.in any capacity whatsoever, have charge of
nat.ional, provincial or municipal funds, revenues or property; and
a.2. Any administrator or depository of funds or property attached, sized
or deposited by public authority.
b. Elements of Art. 217:
b. l. Offender is an accountable public officer;
b.2 That he had the custody or control of funds or p:operty by reason of
the duties of his office;
b.3. That those funds or property were public funds or declared by law
with public character; and
b. 4. That he appropriated, took, misappropriated or consented or, through
abandonment or negligence, permitted another person to take them.
5. Art. 222. Officers inclnded in the preceding provisions. - The provisions of
this chapter shall apply to private individuals who in any capacity whatever,
have charge of any insular (now national), provincial, or municipal funds,
revenues, or _!1roperty or to any administrator or depository of funds or property :ittached, seized, or deposited by public authority, even if such property
belongs to a private individual

Tax Code Provisiorls on Willful Failure to Remit in relation to RPC


Provision on Malversation
o

c.

Secs. 58 and 81

l
Sec. 257 (B)(S) - Knowingly Uses Fake Certifi.cati! Authorizing Registration
Sec. 257. Penal Liability for Making False Entries, Records or Reports, or
Using Falsified or Fake Accountable Forms.
(B)

Any person who:

xxx
(8) Willfully attempts in any manner to evade or defeat any tax imposed under this Code, or knowingly uses fake or falsified revenue official

246

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I

receipts, Letters ofAuthority, certificates authorizing registration, Tax Credit


Certificates, Tax Debit Memoranda and other accountable forms shall, upon
conviction for each act or omission, be punished by a fine not less than Fifty
thousand pesos (P50,000) but not more than One hundred thousand pesos
(Pl00,000) and suffer imprisonment of not less than two (2) years but not
more than six (6) years.
1. Elements of Sec. 257 (8)(8):
a. Any person, natural or juridical; and
b. He knowingly uses fake or falsified revenue official receipts, Letters of
Authority, certificates authorizing registration, Tax Credit Certificates,
Tax Debit Memoranda and other accountable forms.

2. Documentary Evidence Required:


a. SEC Certificate of Registration, Articles of Incorporation & By-Laws or
Articles of Partnership (in case of a corporation)
b. Corporate documents showing signature/participation in the conduct of
business
c. General Information Sheet showing the identity of the CO!:porate officers
as enumerated in Sec. 253 (d):
c. l. partner
c.2. president
c.3. general manager
c.4. branch manager
c.5. treasurer manager
c.6. officer-in-charge
c. 7. employees responsible for the violation
d. Tax Return of the taxpayer
e. BIR registration (Integrated Tax System (ITS) /RDO certification) to show
that the person is a registered taxpayer
f. Deeds of Conveyance & Certificate Authorizing Registration (in case of
One-Time Transaction}[ONETT])
g. Contracts
h. Mayor's permit to show that business is in operation
1. DTI registration (if single proprietorship)
J. DTI or SEC records to show existence of business I operation
k. Proof of income received or documents to show sources of income
I. Any other documents showing participation/ involvement of other persons
in the commission of the offense (conspirators)
m. Revenue official receipts
n. Letter of Authority
o. Certificate Authorizing Registration
p. Tax credit Certificates

Revised Manual for Prosecutors

247

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

I
I
I
I

q.
r.
s.
t.
u.
v.

Tax Debit Memoranda and other accountable forms


Certification from district, region, ITS as to authenticity of tax forms
Register of Deeds documents
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.

3. Revised Penal Code Provision on Falsification in relation to Sec. 257 (B)


(8) of the NIRC
Art.172. Falsification by private individuals and use of falsified documents.- The penalty of prision correctional in its medium and maximum periods and a fine of not mere than 5,000 pesos shall be imposed upon:
! . Any private individual who shall commit any of the falsifications

. enumerated in the next proceeding article in any public or official document of letter of exchange or any other kind of commercial document;
and
xxx

xxx

xxx

Any person who shall knowingly introduce in evidence in any judicial


proceeding or to the damage of another or who, with the intent to cause
such damage, shall use any of the false documents in the next preceding article or in any of the foregoing subdivisions of this article, shall be
punished by the penalty next lower in degree.
a. Elements of Paragraph 1 (Falsification of public, official or commercial document by a private individual):
a. I. That the offender is a private individual or a public officer or employee who did not take advantages of his official position;
a.2. That he committed any of the acts of falsifications enumerated in
Art. I 71; and
a.3. That the falsification was committed in a public or official or commercial document.
b. Elements of the Last Paragraph (Use of Falsified Document):
b. 1. 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 of Art. 172;
b.3. That he used such document (not in judicial proceedings); and

248

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

I
J

I
I

b.4. That the use of the false document caused damage to another or
least, it was with intent to cause such damage.

Note (p. 247, Revised Penal Code by Luis B. Reyes):


If the one who used the falsified document is the same person
who falsified it, the crime is only falsification and the use of the
same is not a separate crime.

The user of the falsified document is deemed the author of


the faisification, if ( 1) the use was so connected in time with the
falsification, and (2) the user had the capacity of falsifying the
document
D. Sec. 258. Unlawful Pursuit of Business. -Any person who carries on any 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 omission, be punished by
a fine of not less than Five thousand pesos (P5,000.00) but not more than Twenty
thousand pesos (P20,000) and suffer imprisonment of not less than six (6) months
but not more than two (2) years; Provided, that in the c&se of a person engaged in
the business of distilling, rectifying, repacking, compounding or manufacturing
any article "ubject to excise tax, he shall, upon conviction for ~a~h act or emission,
be punished by confinement of not less than Thirty thousand pesos (P30,C'OO) but
not more than Fifty thousand pesos (P50,000) and suffer imprisonment of not l~ss
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 ~.n annual
registration fee is imposed; and
b. Such person did not pay the required annual registration fee
2. Documentary Evidence Required:
a. SEC Certificate of Registration, Articles of Incorporation & By-Laws or
Articles of Partnership (in case of a corporation)
b. Corporate documents showing signature/participation in the conduct of
business
c. General Information Sheet showing the identity of the corporate officers
as enumerated in Sec. 253 (d):
c. l. partner
c.2. president
c.3. general manager
c.4. treasurer
c.5. branch manager

Revised Manual for Prosecutors

249'

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

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 of business/operation
1. Proof of income received or documents to show source of income
j. Auy other documents showing participation/ involvement of other 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 an..'lual registration fee has
been made
1. 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 RiR
6. Related Tax Code Provision: Sec: 236

E. Sec. 267. Declaration under Penalties of Perjury. -Any declaration, return and
other statement required under thi~ Code, shall in lieu of an oath, contain a written statement that they are made und~r the penalties of perjury. Any perscm 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.
1. Elements of Sec. 267:
a. There is a declaration, return and other statement required under this
Code, which, in lieu of an oath, ~ontains a written statement that they are
made under the penalties of perjury;
}
b. Any person, natural or juridical, willfully files a declaration, return or
statement containing information which is not true and correct; and
c. Such untrue or incorrect statement/s is/are a material matter/s

2. Documentary Evidence Required:


a. SEC Certificate of Registration, Articles of Incorporation & By-laws or
Articles of Partnership (in case of a corporation)
b. General Information Sheet showing the identity of the corporate officers
as enumerated in Sec. 253 (d):
b.1. partner

250

Revised Manual for Prosecutors

I'"
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

c.
d.
e.
f.
g.
b.
1.

J.

b.2. president
b.3. general manager
b.4. treasurer
b.5. branch manager
b.6. treasurer
b.7. officer-in-charge
b.8. employees responsible for the violation
Deeds of Conveyance & Certification Authorizing 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 par.- Securing More Than One TIN
Sec. 236.RegistrationRequirements. (J) Supplying a 'Taxpayer Identification
Number (TIN).- Any person required under the authority of this Code to make,
render or file a return, statement or other document shail be supplied wiih 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
xxx

xxx

xxx

Only one Taxpayer Identification Number (TIN) shall be assigned to a


taxpayer. Any person who shall secure more than one Taxpayer Identification
Number shall be criminally liable under the provision of Sec. 275 on Violation of
Other Provisions of this Code or Regulations in General.
l
Sec. 275. Violation ofOther Provisions of this Code or Rules and Regulations
in General. - Any person who violates any provision of this Code or any rule
or regulation promulgated by the Department of Finance, for which no specific
penalty is provided by law shall, upon conviction for each act or omission, be
punished by a fine of not more thaP.. One thousand pesos (Pl,000) or suffer imprisonment of not more than six (6) months, or both.
1. Elements of Sec. 236 (J):
a. Any person, natural or juridical, is a registered taxpayer;
b. Such person was assigned a TIN; and
c. Such person secured another TIN.
Revised Manual for Prosecutors

251

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

2. Documentary Evidence Required:


a. RDO Certification to show that taxpayer is registered with the BIR with
the TIN assigned
b. Certification from ITS of the TIN being used/assigned
c. Certification from ITS of another TIN secured
d. Documents to show other TIN/s secured
IV.

RELEVANT JURISPRUDENCE IN ESTABLISHING INTENT AND


WILLFULNESS IN TAX CASES
A. Intent/Willfulness in Criminal Law
1. Mens Rea. - Mental element of the offense that accompanies the criminal act.
2. Actus non facit reum nisi mens sit rea - "the act does not make a person guilty
unless the mind is also guilty."

3. Intent/willfulness is generally equated with malice, especially as regards


crimes under the Revised Penal Code (RPC).
a. It has been said that while the word "willful" sometimes means little more
than mtentionally or designedly, yet it is more frequently understood to
extend a little furth~r and approximate the idea of the milder kind of legal
malice; that is, it signifies an evil intent without justifiable excuse. In
one case it was said to mean, as employed in ;i statute in contemplation,
"wantonly'" or "causelessly;" in another, "without reasonable grounds to
believe the thing lawful." And Shaw, C. J., once said that ordinarily in a
statute it means "not merely "voluntarily' but with a bad purpose; in other
words, corruptly." In English and the American statutes defining crimes
"malice," "malicious," "maliciously," and "malice aforethought" are
words indicating intent, more purely technical than "willful" or willfully,"
but "the difference between them is not great;" the word "malice" not
often being understood to require general malevolence toward a particular
individual, and signifying rather the intent from our legal justification.
[U.S. vs. Ah Chong, GR No. L-5272, 19 March 1910 (15 Phil. 488)
b. Generally, malice or intent is deemed irrelevant in special penal laws as
the latter are considered ma/a prohibita. Nevertheless, if specific intent is
required, the same must be proved.
4. Intent/Willfulness as an element of certain violations of the NIRC.
a. Sec. 254. Attempt to Evade or Defeat Tax. - "Any person who willfully
attempts in any manner to evade or defeat any tax imposed under this
Code or the payment thereof shall xxx be punished xxx"

252

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

I
I
I

b. Sec. 255. Failure to File Return, Supply Correct and Accurate


Information, Pay Tax, Withhold 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 a 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,
at the time or times required by law or rules and regulations, shall xxx be
punished xxx" .
c. Sec. 257. Penal Liability for Making False Entries, Records or
Reports, or Using Falsified or Fake Accountable Forms
c. l. Willfully falsifies any report or statement bearing on any examination or audit xxx
c.2. Willfully attempts in any manner to evade or defeat any tax imposed
xxx

B. Philippine Jurisprudence on Intent/Willfulness in Tax Cases


1. Supreme Court lJecisions

a. Aznar vs. CTA (GR No. L-20569, 23 August 1974, 58 SCRA 519)
a. l. 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

Revised Manual for Prosecutors

253

I
I
I
I
I

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 undoubtediy 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 of his 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.

I
I
I
I
I
I
I
I
I

The lower court's conclusion regarding the existence offraudulent


intent to evade payment of taxes was based merely on a presumption
and not on evidence establishing a willful filing of false and fraudulent returns so as to warrant the imposition of the fraud penalty. The
frauc! <:cntemplated by law is actual and not constructive. It mu:>t be
intentional fraud, co11sisting of deception willfully and deliberately
done or resorted to in on.l~r to induce another to give up some legal
right. Negligence, whether slight or gross, is not equivalent tll the
fraud w!th intent to evade the tax contemplated by the law. It
must amount to intentional wrong-doing with the sole object of
avoiding the tax. It necessarily follows that a mere mistake cannot be considered as fraudulent intent, and if both petition'!r and
respondent Commissioner of Internal Revenue committed mistakes
in making entries in the returns and in the assessment, respectively,
under the inventory method of determining tax liability, it would
be unfair to treat the mistakes of the petitioner as tainted with fraud
and those of the.respondent as made in good fai1h." (Emphasis and
underscoring supplied.)
b. Ungab vs. Cusi (GR No. L-41919-24, 30 May 1980)

I
I
I
I
I

b.1. This is a criminal case for filing a fraudulent tax return, failure to
render a true and complete return and engaging in business without
first paying the annual fixed or privilege tax. However, the case did
not discuss the guilt or innocence of the accused, but tackled the
authority of the prosecutor and the jurisdiction of the court.

2S4

Revised Manual for Prosecutors

I
I
I

b.2. The following are the relevant pronouncements of the SC on intent


and willfulness:
"The contention is made, and is here rejected, that an assessment
of the deficiency tax due is necessary before the taxpayer can be
prosecuted criminally for the charges preferred. The crime is complete when the violator has, as in this case, knowingly and willfully
filed fraudulent returns with intent to evade and dvfeat a part or all of
the tax." An assessment ofa deficiency is not necessary to a criminal
prosecution for willful attempt to defeat and evade the income tax.
A crime is complete when the violator has knowingly and willfully
filed a fraudulent return with intent to evade and defeat the tax. The
perpetration of the crime is grounded upon knowledge orr the
part of the taxpayer that he has made an inaccurate return, and
the government's failure to discover the error ancl. promptly to assess has no connections wlth the commission of the crime." (Citing
Mertens Law of Federal Income Taxation, Vol. JO, Sec. 55A.05, p.
21. [Underscoring and emphasis supplied})

I
I
I
I
I
I
I
I
I
I
I

I
I
I
I
I

c.

CIR vs. Javier (GR No. 78953, 31July1991, 199 SCRA 824)

c. l. Again, this is not a criminal case. The controversy basically revolves


around the assessment of deficiency tax and imposition of surcharge.
The taxpayer was the recipient of some money from abroa<l which
he presumed to be a gift but the amount was actually erroneously
remitted to his account. In his income tax return, the taxpayer put
a footnote stating the above and the fact th:it the :i!llount is now
subject to litigation.
c.2. The SC cited the ruling in the Aznar case as regards fraud and
held: "In the case at bar, there was no actual and intentional fraud
through willful and deliberate misleading of the government agency
concerned, the Bureau of Internal Revenue, headed by the herein
petitioner. The govern}nent was not induced to give up some legal
right and place itself at a disadvantage so as to prevent its lawful
agents from proper assessment of tax liabilities because Javier did
not conceal anything. Error or mistake of law is not fraud. The petitioner's zealousness to collect taxes from the unearned windfall
to Javier is highly commendable. Unfortunately, the imposition
of the fraud penalty in this case is not justified by the extant facts.
Javier may be guilty of swindling charges, perhaps even for greed
by spending most of the money he received, but the records lack a
clear showing of fraud committed because he did not conceal the
fact that he had received an amount of money although it was a
"subject of litigation." (Emphasis and underscoring supplied.)

Revised Manual for Prosecutors

255

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

d. CIR vs. CA (GR No. 119322, 04 June 1996, 257 SCRA 200)

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 of making fictitious and simulated sales of Fortune's cigarette products to non-existing individuals and to entities incorporated
and existing only for the purpose of such fictitious sales by declaring
registered wholesale prices with the BIR lower than Fortune's actual
wholesale prices, which are required for determination of Fortune's
correct income and tax lia.bilities. Fortune sought the injunction of
the preliminary investigation.
d .2. The SC held:

"Willful" means ''pre-meditated; malicious; done with


intent, or with bad motive or purpose, or with indifference to
the natural consequence x x x." "Fraud" in its general sense, "is
deemed to comprise anythi!lg calculated to deceive, including all
acts, omissions, and concealment involving a breach of legal or
equitable duty, trust or confidence justly reposed, resulting in the
illimage to another, or by which undue and unconscionable advantage taken of another.
Praud cannot be presumed. If there was fraud or willful attempt
to evade payment of ad valorem taxes by private respondents through
the manipulation of the registered wholesale price of cigarettes, it
must have been with the connivance of cooperation of certain BIR
officials and employees who supervised and monitored Fortune's
production activities to see to it that the correct taxes were paid
But there is no allegation, much less evidence, of BIR personnel's
malfeasance." (Emphasis supplied.)
d.3. The SC further clarified the ruling in Ungab vs. Cusi, to wit:
"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 of the taxpayers failure 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

Revised Manual for P.-osecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

final detennination of what is supposed to be the correct taxes, the


taxpayer should not be placed in the crucible of criminal prosecution." (Underscoring and emphasis supplied.)
2. Court of Tax Appeals (CTA) Decisions
a

Pascual and Dragon vs. CIR (C.T.A. Case No. 3045, 29 December
1986)
a.1. The case focuses on the propriety of the assessment of deficiency
taxes and the imposition of surcharge and is not actually a criminal
case. Nonetheless, the CTA had the opportunity to discuss what constitutes willful neglect in the filing of returns and payment of taxes,
as follows:
"To our mind, there was willful neglect to file the corporate income tax returns required by law on the part of petitioners because,
as borne out by the records, both petitioners Mariano P. Pascual and
Renato P. Dragon did not file separate individual income tax ret..uns
for 1968 reporting their respective share of the profits realized by
them in said year from their real estate transactions. (p. 28, Bureau
of Internal Revenue records.) If petitioners did not even bother to
report their share of the profits derived by them from their buyin"
and selling transactions, why should they take the trouble of filing
corporate income tax return for their partnership? But assuming that
for the year l 96S petitioners were not yet aware that they are taxable
as an unregistered partnership subject to corporate income tax, they
could at least have filed their separate individual income tax returns
for this year. It seems clear therefore that there was intentional
wrongdoing with the object of avoiding the tax on the part of
petitioners." (Emphasis and underscoring supplied.)

b. Sevilla, Son, Ruben Tiu, Ben Tiu and Jerry Tiu vs. CIR (C.T.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 of Assignment
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 of P53,685,000.00 for which the capital
gains tax due thereon was not paid by the petitioners. Because of the
deliberate overstatement of the cost of acquisition of the subject

Revised Manual for Prosecutors

257

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

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 capital gains tax returns, they willfully
evaded the payment of correct 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 of Assignment 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 of Internal Revenue." (Emphasis and underscoring supplied.)
c. People vs. Mallari (C.T.A. Crim. Case Nos. A-1 & 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 a.ct.
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 "J"); that he received the Warrarjt 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 of the deficiency taxes, there is no other conclusion that
can be drawn except that the accused-appellant willful!y 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

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

refusal to pay his deficiency tax liabilities to the government. He


resorted to bribery instead of fulfilling his legal obligation of paying
his deficiency taxes." (Emphasis and underscoring supplied.)
3. Regional Trial Court (RTC) Decision

a. People vs. Imelda Marcos (Crim. Case Nos. Q-91-24382-83, 91-2438889, and 91-24392, 20 April 2007)

a. l. Several criminal cases were filed qgainst respondent for:

Failure to pay income tax;


Failure to give a written notice of death;
Failure to pay estate taxes;
Failure to file income and estate tax returns

a.2. The court took judicial notice of the fact that the Marcoses were
forcibly evicted from the country and brought to Hawaii in 1986,
leaving most of their personal and real properties under the possession and control of the government.
a.3.The RTC held:
"As the defense contended, the Marcoses were totally isolated
fwm the rest of the world. They were not afforded means of communication and transportation and were not allowed to receive visitors. Thus, it was really impossible for the accused to have complied
with the requirement of.filing and paying any of her tax obligations.
Likewise, even though she wanted to do so, their sudden departure
from the country prevented the accused from bringing her personal
record and documents with which she could assess or d~termine
her income for the year 1985 to prepare her income tax return ...
Com;equently, failing on the part of the prosecution to substantiate through competent clvidence that accused Mrs. Imelda Marcos
willfully, unlawfully and feloniously neglected to file and pay [an]
income tax return for [the] year 1985, she could not be hdd criminally liable.
The Court finds merit in the argument that the failure on the part
of the accused to file the estate tax return and to pay the estate tax
is not willful. Although accused may have failed to comply with
what is required by law, accused should be exempted from criminal
liability as she was prevented to do so due to an insuperable cause
made by no less than the government, i.e., as early as February 1986,
accused and her family were forcibly placed on exile in Honolulu,

Revised Manual for Prosecutors

259

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Hawaii unti I 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
asses~ 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 who le, 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 iuvolving 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 o!:' the accused with the intention to evade and defeat the
tax." (Underscoring supplied.)

c.

Challenges in Proving Intent and Willfulness in Tax Cases


1. Willfulness is a state of mind
2. Willfulness is determined by a subjective standard
3. "The element of willfulness is often the most difficult element to prove in an
evasion case. Absent an admission or confession, which is seldom available,
or accomplice testimony, willfulness is rarely subject to direct proof and
must generally be inferred from the defendant's acts or conduct." [U.S.
Criminal Tax Manual 8.06[2]]

260

Revised Manual for Prosec.1tors

I_

I
I
I
I
I
I

I;
I;
11

I
'

IiI

I
i

~
I
I
I
I

D. Proof of Willfulness in U.S. Jurisprude.nce

L Proof of Willfulness - Failure to File Returns [US Criminal Tax Manual


10.04[5] [a}]
a. Willfulness is suggested by a pattern of failing to file for consecutive years
in which returns should have been filed. United States v. Greenlee, 517
F2d 899, 903 (3d Cir. 1975). This may include years prior or subsequent
to the prosecution period. United States v. Upton, 799 F.2d 432, 433 (8th
Cir. 1986); United States v. Farris, 517 F.2d 226, 229 (7th Cir. 1975).
b. Willfulness may be shown by disregarding IRS warning letters, and filing
contradictory forms. United States v. Shivers, 788 F.2d 1046, 1048 (5th
Cir. 1986)
c. There is also an element of common sense in establishing willfulness in a
failure to file case.
d. Thus, willfulness can be shown by such factors as: the background of the
defendant; the filing of returns in prior years, United States v. Briscoe,
65 F.3d 576, 588 (7th Cir. 1995); United States v. Hauert, 40 F.3d 197,
199 (7th Cir. 1994); United States v. Birkenstock, 823 F.2d 1026, 1028
(7th Cir. 1987); united States v. Bohre1; 807 F.2d 159, 161 (10th Cil:
1986) United States v. Shivers, 788 F.2d 1046, 1048 (5th Cir. 1986); that
the defendant was a college graduate with accounting knowledge; that
the defendant was familiar with books and records and operated a business, United States v. Segal, 867 F.2d 1173, 1179 (8th Cir. 1989); that the
defendant earned a large gross income, Bohrer, 807 F.2d at 161. See also
United States v. MacLeod, 436 F.2d 947, 949 (8th Cir. 1971) United States
v. Ostendorff, 371F.2d729, 731 (4th Cir. 1967).
e. Evidence that a defendant had filed returns in other years when he ~laimed
refunds while there was a substantial tax due for the years he failed to
file is relevant evidence and more than enough to establish willfulness.
Garguilo, 554 F.2d at 62.
2. Proof of Willfulness - Attempt to Evade or Defeat Tax [US Criminal Tax
Manual 8.06[2]]
a. In the leading case of Spies v. United States, 317 US. 492, 499 (1943), the
Supreme Court, "by way of illustration and not by way of limitation," set
forth the following as examples of conduct from which willfulness may
be inferred:

Revised Manual for Prosecutors

261

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

"[K]eeping a double set of books, making false entries or alterations,


or false invoices or documents, destruction of books or records, concealment of assets or covering up sources of income, handling of one's affairs
to avoid making the records usual in transactions of the kind, and any
conduct, the likely effect of which would be to mislead or to conceal."
b. Examples of Proof of Willfulness - Attempt to Evade or Defeat Tax
b. l. Willfulness raay be inferred from evidence of a consistent pattern of
underreporting large amounts of income.

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, 1019-20 (6th Cir. 1988) (willfulness found where
taxpayer failed to fiie complete tax returns over a four-y-:ar period
and underreported his 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 Cir. 1980); United States v.
Larson, 612 F2d 1301 (8th Cir. 1980); United States v. Gardner,
611 F2d 770 (9th Cil: 1980)
b.2. Failure to supply c.n accountant with accurate and.complete information.

United States v. Samara, 643 F2d 701, 703 (/0th Cir. 1981)
(taxpayer kept receipt books for cash received but did not supply
them to accountant, thus concealing cash receipts); see also_ United
States v. Guidry, 199 F.3d 1150, 1157 (10th Cir.1999); United States
v. Brimberry, 961 F2d 1286, 1290 (7th Cir. 1992); United States
v. Chesson, 933 F2d 298, 305 (5th Cir. 1991); United States v.
Michaud, 860 F2d 495, 500 (1st Cir. 1988); United States v. Meyer,
808 F2d 1304, 1306 (8th Cir. 1987); United States v.iAshfield, 735
F2d 101, 107' (3d Cir. 1984); United States v. Conforte, 624 F2d
869 (9th Cir. 1980); United States v. Scher, 476 F2d 319 (7th Cir.
1973).
b.3. Taxpayer who relies on others to keep his records and prepare his
tax returns may not withhold information from those persons relative to taxable events and then escape criminal responsibility for the
resulting false returns.

262

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I'

Ii
1:
Ii
I
I
!'

United States v. Simonelli, 237F.3d19, 30 (1st Cir. 2001); United


States v. O'Keefe, 825 F.2d 314, 318 (11th Cir. 1987); United States
v. Garavaglia, 566 F.2d 1056 (6th Cir. 1977).

b.4. False statements to agents; false exculpatory statements, whether


made by a defendant or instigated by him.
United Strites v. Chesson, 933 F.2d 298, 304 (5th Cir. 1991);
United States v. FrederJckson, 846 F.2d 517, 520-21 (8th Cir. 1988)
(tBxpayer 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 F.2d
88 (7th Cir. 1980); United States v. Tager, 481 F.2d 97, JOO (10th
Cir: 1973); United States v. Callanan, 450 F.2d 145, 150 (4th Cir.
1971); United States v. Jett, 352 F.2d 179, 182 (6th Cir. 1965); see
also United States v. Klausner., 80 F.3d 55, 63 (2d Cir: 1996); United
States v. Pistante, 453 F.2d 412 (9th Cir. 1971); United States v.
Adonis, 221F.2d717, 719 (3d Cir. 1955).

b.5. Keeping a double set of books. United States v. Daniels, 617 F.2d
146 (5th Cir. 1980).
b 6. Hiding, destroying, throwing away, or "~osing" books and records.
United States v. Walker, 896 F.2d 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 F..?d 298, 304-05 (5th
Cir. 1991) (taxpayer altered and destroyed invoices after undergoing
a civil audit for underreporting income); United States v. Pistante,
453 F.2d 412 (9th Cir. 1971); United States v. Holovachka, 314 F.2d
345, 357 (7th Cir. 1963); Gariepy v. United States, 189 F.2d 459,
463 (6th Cir. 1951).

b. 7. Making or using false do~uments, false entries in books and records,


false invoices, and the like.
United States v. Wilson, 118 F.3d 228, 236 (4th Cir. 1997); United
States v. Chesson, 933 F.2d 298, 304 (5th Cir. 1991); United States
v. Walker, 896 F.2d 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).

Revised Manual for Prosecutors

263

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

b.8. Destruction of invoices to customers. United States v. Garavaglia, 566 F2d


1056, 1059 (6th Cir. 1977).
b.9. Nominees - Placing property or a business in the name of another.
United States v. Daniel, 956 F2d 540 (6th Cir. 1992); United States v.
Peterson, 338 F2d 595, 597 (7th Cir. 1964); United States v. Woodner, 317
F2d 649, 651 (2d Cir. 1963); Banks v. United States, 204 F2d 666, 672 (8th
Cir. 1953), vacated and remanded, 348 US. 905 (1955), reaff'd, 223 F2d
884 (8th Cir. 1955).

b.10. Extensive use of currency or cashier's checks.


United States v. Daniel, }'56 F.2d 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, 174 F2d 397, 398
(8th Cir. 1949) . .

b.11. Spending large amounts of cash which could not be reconciled with the
amount of income reportec.
United States v. Simonelli, 237 F3d 19, 30 (1st Cir. 2001); United States
v. Olbres, 61F3d967, 971 (1st Cir. 1995); United States v. Kim, 884 F2d
189, 192 (5th Cir. 1989); or engaging in surreptitious cash transactions,
United States v. 3kalick_y, 615 F.2d 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).

b.12. Use of bank accounts held under fictitious names. United States v. Ratner,
464 F2d IOI, 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.13. Checks cashed and the currency deposited in an out-of-town bank account.
United States v. White, 417 F.2d 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).

264

Revised Manual for Prosecutor~

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
l

~
l

I
I

b.15. Repetitious omissions of items of income, e.g., income from various sources
not repo11ed.

United States v. Walker, 896 F.2d 295, 299 (8th Cir. 1990) (over a twoyear period taxpayer failed to report interest income totaling $20,476);
United States v. Tager, 479F.2d120, 122 (10th Cir. 1973); Sherwin v. United
States, 320 F.2d 137, 141 (9th Cir. 1963).
b.16. Prior and subsequent similar acts reasonably close to the prosecution
years.

United States v. Middleton, 246 F.3d 825, 836-837 (6th Cir. 2001);
Matthews v. United States, 407 F2d 1371, 1381 (5th Cir. 1969); United
States v. Johnson, 386 F.2d 630 (3d Cir. 1967); United States v. Magnus,
365 F.2d 1007 (2d Cir. 1966); United States v. Alker, 260 F.2d 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, 491F.2d268, 273 (2d Cir. 1974).
b.18. The defendant's attitude toward the reporting and payment of taxes generally.

United States v. Hogan, 861 F.2d 312 (1st Cir. 1988); Unized States v.
Stein, 437 F.2d 775 (7th Cir. 1971); United States v. O'Connor, 433 F.2d
752, 754 (/st Cir. 1970); United States v. Taylor, 305 F.2d 183, 185 (4th Cir.
1962);
b.19. Background and experience of defendant. General educational background
and experience of defendant can be considered as bearing oa defendant's
:ibility to form willful intent.

United States v. Guidry, 199 F.3d 1150, 1157-l158 (10th Cir.1999)


(willfulness inferred from defendant's expertise in accounting via her business degree and her work experience as comptroller of a company); United
States v. Klausner, 80 F.3d 55, 63 (2d Cir. 1996) (defendant's background as
a CPA, and extensive business experience including that as a professional
tax preparer); United States v. Smith, 890F.2d711, 715 (5th Cir. 1989) (defendant's background as an entrepreneur probative of willfulness); United
States v. Segal, 867 F.2d 1173, 1J 79 (8th Cir. 1989) (defendant was a successful and sophisticated businessman); United States v. Rischard, 471 F2d
105, 108 (8th Cir. 1973);. See United States v. Diamond, 788 F.2d 1025 (4th
Cir. 1986); United States v. MacKenzie, 777 F.2d 81J, 818 (2d Cir. 1985)
(willfulness inferred from the fact that each defendant had a college degree,
one in econ,omics and the other in business).

Revised Manual for Prosecutors

265

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

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,
566 F2d 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 (1st Cir. 1982), United
States v. Crum, 529 F2d 1380 (9th Cir. 1976); United States v. 0 'Keefe, 825
F2d 3!4 (llth c;r. 1987).
b.23. Illegal sources of income. United States v. Palmer, 809 F2d 1504, 1505-06
(llth Cir. 1987) (sale of narcotics).

266

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

V.

TEMPLATES OF TRIAL BRIEFS


A. SEC. 254.

ATTEMPT TO EVADE OR DEFEAT TAX

[ ]

Caption

[ ]

Information Sheet (names, addresses and telephone numbers of the investigators, parties,
court)

[ ]

Theory of the Case for the Prosecution

[ ]

Theory of the Case for the Defense

[ ]

Issues

[ ]

Stipulations

[ ]

Admissions

[ ]

Elements
[ ]

A tax imposed under the Tax Code

[ ]

Evidence:

Revised Manual for Prosecutors

267

I
I
I
I
I
I
I
I
I
I

[]

[]

I
I
I
I
I
I
I

[]

A person, natural or juridical, is liable to that tax

[]

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:

Probable proof of opponent

[]

Facts to be proven:---~

[]

Evidence:

[]

Source of evidence:

[]

Facts to be proven:

[]

Evidence:

[]

Source of evidence:

[]

Facts to be proven:
}

[]

[]

Evidence:

[]

Source of evidence:

Witnesses

[]

268

Witness name:

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

[ ]

Personal background:

[ ]

Outline of testimony:

[ ]

Comment:

[ ]

Witn~ss

[ ]

Personal background:

[]

Outline of testimony:

[]

Comment:

[]

Witness name:

[]

Personal background:

[]

Outline of testimony:

[]

name:

Comment:

Revised Manual for Prosecutors

269

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

[]

270

Documentary exhibits

[]

SEC Certificate of Registration, Articles of Incorporation & By-Laws or Articles ()f


Partnership (in case of a corporation)

[]

Corporate documents showing signature/participation in the conduct of business

[]

General Information sheet showing the identity of the corporate officers as enumerated in Sec. 253 (d)

[]

Tax Return of the taxpayer

[]

BIR registration (Integrated Tax System [ITS]/RDO certification) to show that the
person is a registered taxpayer

[]
[]

Deeds of Conveyance & Certificate Authorizing Registration (in case of One-'l'ime


Transaction [ONETT])
Contracts

[]

Mayor's Permit

[ ]

DTI registration (if sole proprietcrshi)

[]

Proof of income received or documents to show source of income

[]

Any other documents showing participation/involvement of other persons in the


commission of the offens~

[]

Third Party Certification (original or if unavailable, certified true copy)

[]

Certification from the district, region or ITS showing existence or non-existence of


return

[]

Fraudulent Scheme:

[]

In case of ONETT, 2 or more Deeds of Conveyance

[]

Using a dummy/ies

[]

Using fake Certificate Authorizing Registration (CAR) to commit Tax


Evasion

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

[]

[]

Badges of Fraud:
[ ]

intentional and substantial understatement of taxable income as shown in


the returns, financial statements, balance sheet, or deeds of conveyance
showing receipt of income (underdeclaration of income);

[]

intentional and substantial overstatement (over-claiming) of deductions or


exemptions as shown in returns, financial statements, balance sheets, inv01ces;

[]

any act or recurrence of the foregoing or similar circumstances (Vitug, citing Collector vs. Reyes);

[]

recurrence of failure to perform legal obligation, i.e., obligation to file return,


pay tax, withhold tax, remit tax, supply correct and accurate information,
refund excess taxes withheld on cor.1.pensation;

[]

making it appear that one has filed a return or actua!ly filing a return and
subsequently withdraws the same after securing the official receiving seal
or stamp;

[]

securing or use of multiple or different TIN;

[]

in case of ONET, price/consideration in the deed inconsistent with return or


the CAR, use of falsified CAR to transfer property;

[]

other schemes to prove intent to evade tax;

[]

computation showing substantial under-declaration or substantial overstatement;

Applicable laws and jurisprudence

Revised Manual for Prosecutors

271

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

[]

Other important points to consider:

B. SEC. 255. FAILURE TO FILE RETURN, SUPPLY CORRECT AND


ACCURATE INFORMATION, PAY TAX WITHHOLD AND REMIT TAX
AND REFUND EXCESS TAXES WITHHELD ON COMPENSATION

[]

Caption

[]

Information Sheet (names, addresses and telephone numbers of the investigators, parties,
court)

[]

Theory of the Case for the Prosecution

[ ]

Theory of the Case for the Defense

[ ]

Issues

[ ]_

Stipulations

272

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I

-I
~t

[ ]

Admissions

[ ]

Elements
[ ]

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 infom1ation

[ l

At the time or times required by law or rules and regulations

[]
[]

Such person w!llfully 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

[]
[]

Source of evidence:

[]

As a result, such person failed to pay the correct tax

[]
[]
[]

Source of evidence:

Probable proof of opponent

[]

Facts to be proven:

[]

Evidence:

[]

Source of evidence:

[]

Facts to be proven:

[]

Evidence:

Revised Manual for Prosecutors

273

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

First/Second I 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 income

[]

Financial Statements
Alpha Li3t from district, Withholding Tax Division or Large Taxpayer Service

[ ]

Computation of Tax Liability

[]

Applicable laws and jurisprudence

[]

Other important points to consider:

C. SEC. 257 {B)(S) - KNOWINGLY USES FAKE CERTIFICATE AUTHORIZING


REGISTRATION

[]

Caption

[]

Information Sheet (names, addresses and telephone numbers of the investigators, parties,
court)

[]

Theory of the Case for the Prosecution

276

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

[ ]

Theory of the Case for the Defense

[ ]

Issues

[J

Stipulations

[]

Admissions

[]

Elements

[]

[]

Any person, natural or juridical

[]

Evidence:

l )

Source of evidence:

[]

He knowingly uses fake or falsified revenue official receipts, Letters of Authority,


certificates authorizing registration, Tax Credit Certificates, Tax Debit Memoranda
and other accountable forms

[ ]

Evidence:

[ ]

Source of evidence:

Probable proof of opponent

[]

Facts to be p r o v e n : - - - - - - - - - - - - - - - - - - - - - -

[ ]

Evidence:

Revised Manual for Prosecutors

277

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

[ ]

278

[]

Source of evidence:

[]

Facts to be proven:

[]

Evidence:

[]

Source of evidence:

[]

Facts to be proven:

[]

Evidence:

[]

Source of evidence.

Witnesses

[]

Witness name:

[ ]

Personal background:

[]

Outline of testimony:

[]

Comment:

[ ]

Witness name:

[]

Personal background:

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

[]

Outline of testimony:

[]

Com111ent:

[]

Witness name:

[]

Personal background:

[ ]

Outline of testimony:

_ _ _ _ _ _ _ _ _ _ __c.__ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

[ ]

[ ]

Comment:

Docllll'.entary exhibits

[]

SEC Certificate of Registration, Articles oflncorporation & By-Laws or Articles of


Partnership (in case of a corporation)

[]

Corporate documents showing signature/participation in the conduct of business

[]

General Information sheet showing the identity of the corporate officers as enumerated in Sec. 253 ( d)

[]

Tax Return of the taxpayer

[]

BIR registration (Integrated Tax System [ITS]/RDO certification) to show that the
person is a registered taxpayer

[]

Deeds of Conveyance & Certificate Authorizing Registration (in case of One-Time


Transaction [ONETT])

Revised Manual for Prosecutors

279

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

[]

280

[ ]

Contracts

[ ]

Mayor's Permit

[]

DTI registration (if sole proprietorship)

[]

DTI or SEC records to show existence of business I operation

[ ]

Proof of income received or documents to show source of income

[]

Any other documents sho'Ning participation/involvement of other persons in the


commission of the offense

[]

Revenue official receipts

[]

Letter of Authority

[]

Certificate Authorizing Registration

[ ]

Tax Credit Certificates

[]

Tax Debit Memoranda and other acconr.tablc forms

[]

Certification from district, region, ITS as to authenticity of Tax forms

[l

Register of Deeds documents

[ ]

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

Applicable laws and jurisprudence

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

I
I
I
I

[ ]

Other important points to consider:

D. SEC. 258. UNLAWFUL PURSUIT OF BUSINESS

[ ]

Caption

[ ]

Information Sheet (names, addresses and telephone numbers of the investigators, parties,
court)

[ ]

Theory of the Case for the Prosecution

[ ]

Theory of the Case

[ ]

Issues

[ ]

Stipulations

[ ]

Admissions

fo~

Revised Manual for Prosecutors

the Defense

281

I
I
I
I
I
I
I
I
I
I

[ ]

[]

I
I
I
I
I

I
I
I
I

282

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:

Probable proof of opponent

[ ]

Facts to be proven:

[]

Evidence:

[ ]

Source of evidence:

[ ]

Facts to be proven:

[]

Evidence:

[]

Source of evidence:

[]

Facts to be proven:

[]

Evidence:

[]

Source of evidence:

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
i
I
I
I
I
I
I

[]

Witnesses

[]

Witness name:

[]

Personal background:

[]

Outline of testimony:

[]

Comment:

(]

Witness name:

[]

Personal background:

[]

Outline of testirnony:

[]

Comment:

[]

Witness name:

[]

Personal background:

[]

Outline of testimony:

Revised Manual for Prosecutors

283

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

[ ]

[]

284

Comment:

Documentary exhibits
[ ]

SEC Certificate of Registration, Articles oflncorporation & By-Laws or Articles of


Partnership (in case of a corporation)

[ ]

Corporate documents showing signature/participation in the conduct of business

[ ]

Generai Information sheet showing the identity of the corporate officers as enumer'ated in Sec. 253 (d)

[ ]

Deeds of Conveyance & Certificate Authorizing Registration (in case of One-Time


Transaction [ONETT])

[ ]

Contracts

[ ]

Mayor's Permit

[]

DTI registration (if sole proprietorship;

[]

DTI or SEC records to show existence of business I operat;.on

[]

Proof of income received or documents to '>how source of income

[]

Any other documents showing participation/involvement of other persons in the


commission of the offense

[]

Certification form district, region, ITS that person conducting business is not a
registered taxpayer or that n.o payment of annual registration fee has been made

[]

Third Party Information

[]

Proof of conduct of business

[]

Ocular Inspection

[]

Certification from Collection and Enforcement Division

[ ]

No official receipt registered with the BIR

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
ll

[ ]

Applicable laws and jurisprudence

[ ]

Other important points to consider:

E. SEC. 267. DECLARATION UNDER PENALTIES OF PERJURY


[ ]

Caption

[ ]

information Sheet (names, addresses and telephone numbers of the investigators, parties,
court)

[ ]

Theory of the Case for the Prosecution

[ ]

Theory of the Case for the Defense

[ ]

Issues

[ ]

Stipulations

I
Revised Manual for Prosecutors

285

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

rJ

288

[ ]

Outline of testimony:

[]

Comment:

[]

Witness mime:

[]

Personal background:

[]

Outline of testin:Jny:

[]

Comment:

Documentary exhibits
[ ]

SEC Certificate of Registration, Articles of Incorporation & By-Laws or Articles of


Partnership (in case of a corporation)

[]

General Information sheet showing the identity of the corporate officers as enumerated in Sec. 253 (d)

[]

Deeds of Conveyance & Certificate Authorizing 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

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

[ ]

Applicable laws and jurisprudence

[ ]

Other important points to consider:

F. SEC. 236 (J) - SECURING MORE THAN ONE TIN


[ ]

Caption

[ ]

lnfom1atio11 Sheet (names, addresses and telephone numbers of the investigators, parties,
court)

[ ]

Theory of the Case for the Prosecution

[ ]

Theory of the Case for the Defense

[ ]

Issues

'
I

Revised Manual for Prosecutors

289

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

[]

Stipulations

[]

Admissions

[]

Elements

[]

290

[]

Any person, natural or juridical, is a registered taxpayer

[]

Evidence:

[]

Source of evidence:

[ ]

Such person was assigned a TIN

[]

Evidence:

[]

Source of evidence:

[]

Such person secured another TIN

[]

Evidence:

[]

Source of evidence:

Probable proof of opponent

[]

Facts to be proven:

[]

Evidence:

[]

Source of evidence:
Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

[]

[]

Facts to be proven:

[]

Evidence:

[]

Source of evidence:

[]

Facts to be proven:

[]

Evidenct:

l ]

Source of evidence:

Witnesses

[]

Witness name:

[]

Personal background:

[]

Outline of testimony:

---

[]

Comm~nt:

[]

Witness name:

[]

Personal background:

[]

Outline of testimony:

[]

Comment:

Revised Manual for Prosecutors

291

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

[]

[ ]

Witness name:

[ ]

Personal background:

Outline of testimony:

[ ]

[]

Comment:

Documentary exhibits
[ ]

RDO Certification to show that taxpayer is a registered with the BIR with the TIN
assigned

[ ]

Certification from ITS of the TIN being used/assigned

[ ]

Certification from ITS of another TIN secured

[ ]

Documents to show other TIN/s secured

[]

Applicable laws and jurisprudence

[]

Other important points to consider:

292

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

SAMPLE FORMATS

Revised Manual for Prosecutors

293

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

NPS Sample Format "C", s. 2008


Republic of the Philippines
REGIONAL TRIAL COURT
National Capital Judicial Region
BRANCH - - MANILA

Peopl~

of the Philippines,
Plaintiff,
- versus -

Crim. Ca:ie No.


For: Violation of Sec. 3601
of the Tariff and Customs Code
~~~~~~~~-

Accused.
x--------------------------------~----x

MOTION FOR THE ISSUANCE OF


A HOLD-DEPARTURE ORDER
Undersigned State/Assistant Provincial/Assistant City Prosecutor, mto this Honorable
Court most respectfully moves for the issuance of a hold-departure order (HDO) in the aboveentitled case, further stating that:
1. Accused stands charged of an offense Uiat is of paramount importance to the government in view of its far-reaching deleterious effect on the national economy.
2. In order not to frustrate the ends of justice, as when the accused seeks refuge in another
country to escape prosecution and there enjoy the fruits of his crime, it is imperative
that a hold-departure order be issued directing the Commissioner of the Bureau of
Immigration to prevent the former from leaving the country during the pendency of the
instant case.
3. The instant motion is filed 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

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

WHEREFORE, it is respectfully prayed of this Honorable Court that the instant motion
be granted and that a hold-departure order be issued in the above-entitled case directing the
Commissioner of the Bureau of Immigration to prevent the accused,
, from leaving the country during the pendency of the instant case.
(Place/Date)

State/Asst. CityI Asst. ProvinciaV Prosecutor

NOTICE AND COPY FURNISHED:


Counsel for the Accused
(Address)
Private Prosecutor
(Address)

THE BRANCH CLERK


RTC Branch - - -

GREETINGS:
Please take notice that on
at
a.m. or soon thereafter, undersigned
Prosecutor shall submit the foregoing motion for the consideratfon of this Honorable Court.
StatP,/Asst. Provincial/Asst. City Prosecutor

EXPLANATION

Due to the distance and lack of personnel to effect personal service, the foregoing Motion
is being served upon the adverse parties via registered mail.

I
I
I
I

State/Asst. Provincial/Asst. City Prosecutor

Revised Manual for Prosecutors

295

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

NPS Sample Format "D-1", s. 2008


Republic of the Philippines
Department of Justice
NATIONAL PROSECUTION SERVICE

MEMORANDUM
For: The Secretary of Justice
Thro: The Chief State/Regional State/Provincial/City Prosecutor

Re:

Cancellation of Passportffra1el Document


People versus - - - - - - Criminal Case No. - - - - -, RTC - - For:
---------~

Date:
l'lease be informed that accused
in the above-entitled case has jumped
bail and is reported to have fled the country. Persuant to Department Circ11lar 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 _ _ _ _ _ and the corresponding letter to
the Secretary of Foreign Affairs.
For consideration and approval.
State/Asst. Provincial/Asst. City Prosecutor

RECOMMEDING APPROVAL:
Chief State/Regional State/Provincial/City Prosecutor

APPROVED:
Secretary
Encls.: As stated.

296

Revised Manual for Prosecutors

NPS Sample Format "D-2", s. 2008

I
I
I
I
I
I
I
I
I
I
I
I
I

I
~
I

I
I

Republic of the Philippines


Department of Justice
NATIONAL PROSECUTION SERVICE

(Date)

The Honorable Secretary


DEPARTMENT OF FOREIGN AFFAIRS
Roxas Blvd., Pz.say City

Dear Secretary _ _ _ __
Our Office is presently prosecuting (complete name of accused) for violation of
, before the RTC
. In the
- - - - - - - m Criminal Case No.
course ot the criminal proceedings, the said accused t.as jumped bail and is reported to have ft~d
the country. For this reason and to better serve the ends of justice, we hereby request for the cancellation of the passport/travel document of the said accused so as to make him an undocumented
alien in the host country and, therefore, is subject to deportation.
Thl.s request is with the approval of the Secretary of Justice, as per attached
Memorandum.
Thank you for your usual prompt action on this request.

Very truly yours,

Chief State/Regional State/


Provincial/City Prosecut::>r

Attachment: As stated

Revised Manual for Prosecutors

297

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

..

298

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I

APPENDICES

I
I
I
I
I
I
I
I

I
I
I

Revised Manual for Prosecutors

299

I
I
I
I
I
I
I
I
I
I
I
I
I

Appendix "A"

Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN

Department ofJustice
Manila
DEPARTMENT CIRCULAR NO. 39
TO:

RULES ON INQUEST WITH RESPECT TO CHILDREN IN CONFLICT


WITH THE LAW AS DEFINED UNDER REPUBLIC ACT NO. 9344,
OTHERWISE KNOWN AS THE "JUVENILE JUSTICE AND WELFARE ACT
OF 2006"

SUBJECT:

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 r,hildren, as defined under
Republic Act No. 9344, otherwise known as the "Juvenile Justice and Welfare Act of 2006" who
shali Le 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 tum 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 tht: child (Rule 25,lst Par., !RR
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 uniJerlying Article 125 of the Revised Penal Code, as amended.

I
I

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 tum over the

I
I

ALL PROSECUTORS IN THE NATIONAL PROSECUTION SERVICE

300

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

custody of the CICL to the LSWDO for the required diversion of or intervention
proceeding as the case maybe.
a. I .Pending diversion proceedings, the LSWDO shall release the child to his/her
parents, or in the latter's absence, to the persons or agencies authorized by the
law to take custody of the child.
a.2. However, where diversipn is inappropriate, or no diversion agreed is agreed
upon , or where there is a violation of such contract by the child or by his/her
parents, the c.omplaint maybe refiled, but shall undergo the regular preliminary
investigation.
b.

Where the offense charged is punishable by imprisonment of more than six


(6) years, but the records ofi:he case do not show any document from the LSWDO
certifying that the child acted with discernment, the prosecutor shall direct the law
enforcement officer to turn over custody of the CICL to the LSWDO for the latter
to determine whether or not the CICL acted with discernment.
b.1. The case may b revived for inquest proceeding should the child be found to
have acted with discernment

4.

Wi~hin

twenty four (24) hours from receipt of the LSWDO's finding of discernment,
the law enfo:cement officer concerned shall bring the child to the prosecutor for inquest
proceedings. The LSWDO shall accompany the child to provide the needed assistance
to him/her.

5. The CICL ~ubject 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 of victimless crimes), of
such finding. The LSWDO 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 (15) 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

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

duty of the law enforcers to forward/transmit the records of the case to the investigating
prosecutor.
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 of the child, th~ prosecutor shall conduct his/her 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 ;::larificatory
hearing so the latter could personally examine the CICL.
9 .2

If the prosecutor deems it necessary, he/she may, at his/her own discretion,

and to aid him/her in his/her assessment, require the LSWDO to forward to him/
her a copy of the case study on the child, if any or the records of the LSWDO's
examination on the child, supporting its finding of absence of discernment of the
child.
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 p!"e!iminary jnvestigation.
This circular takes ef{ect immediately.
For strict compliance.

(Sgd.) RAUL M. GONZALEZ


Secretary

302

Revised Manual for Prosecutors

i..

l.
J

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Appendix "B"
Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN
Department ofJustice
Manila

26 June 2003

DEPARTMENT CIRCULAR NO. 46


SUBJECT: AUTOMATIC REVIEW OF DISMISSED CASES INVOLVING RA 9165
(COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002)
TO:

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 of RA 9165 and involving the maximum penalty of
life imprisonment to death, shall be subj(,ct 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 naturt:: 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.
,,.,

I
I
I
I

CIDEF STATE PROSECUTOR I REGIONAL STATE PRQSECUTORS I CITY


AND PROVINCIAL PROSECUTORS

For strict compliance.

(Sgd.) SIMEON A. DATUMANONG


Secretary
R~vised

Miinual for Prosecutors

303

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Appendix "C"
Republika ng Pilipinas
KAGAWA RAN NG KATARUNGAN
Department ofJustice
Manila
28 August 1991

DEPARTMENT ORDER NO. 318


SUBJECT:
DEFINING THE AUTHORITY, DUTIES AND RESPONSIBILITIES OF
REGIONAL STATE PROSECUTORS

In the interest of public service and for the efficient delivery of prosecutorial services, the
following appointed Regional State Prosecutors:

REGION I

APOLINARIO G. EXEVEA
San Fernando, La Union

REGION IT

RODOLFO B. CADELINA
Tuguegarao, Cagayan

REGION III

MELCHOR Q. C. SADANG
San Femado, Pampanga

REGION IV

CLARO A. ARELLANO
San Pablo City

REGIONV

SANTIAGO M. TURINGAN
Legaspi City l

REGION VI

VICENTE E. ARAGONA
Iloilo City

REGION VII

REGION VIII

3Q4

JOSE M. EZPELETA
Cebu City
FRANCISCO Q. AURILLO, JR.
Tacloban City

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

REGION IX

WILFRIDO M. YU
Zamboanga City

REGIONX

JESUS A. ZOZOBRADO
Cagayan de Oro City

REGION XI

EMANUEL D. GALICIA
Davao City

REGION XII

SALJC B. DUMARPA
Iligan City

shall exercise the following authority. duties and responsibilities:


1. Implement withi!l the region policies, plans, programs, memoranda, orders, circulars,
rules and regulations of the De!)artment of justice relative to the National Prosecution
Service (P.D. 1275);
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, specific
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 anendance of personnel in conference, seminars and non degree training and
programs "vithin the region (E.O. 292);
7. Prepare the budget for the approval of the Secretary of Justice and administer the same
(P.D. 1275 a:

Revised Manual for Pre secutors

305

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

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
(Deplirtment Order No. 150, s. l739);

l 1. De5ignate a prosec:itor from another provi:::ice 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 punisliabk with imprisonment of
not exceeding four (4) yea!"s :md two (2) months, or a fine not more than four thousand
pesos, or both such fine and imprisonment;

14.

Investigate administrative complaints against fiscals and otl:er prosecuting


officers within the region and submit his recommendation thereon ~o the Secretary of
Justice who shall, after review thereof, submit the appropriate recommendation to the
Office of the Presi<fent: Provided, that where the Secretary of Justice finds insufficient
grounds for the filing of charges he may render a decisior. of dismissal thereof. (P.D.
1275);

15.

Investigate administrative complaints against subordinate personnel of the region


and submit his recommendations thereon to the Secretary of Justice who shall have the
authority to render decision thereon;

16. Coordinate with the regional 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 Prosec~tor 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
306

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

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.
All issuances inconsistent herewith are hereby superseded and revoked.

(Sgd.) SILVESTRE H. BELLO III


Acting Secretar; of Justice

Copy furnished:
All concerned.

Revised Manual for Prosecutors

307

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

I
I
I
I

Appendix "D"
Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN
Department ofJustice
Manila

February 20, 1992

DEPARTMENT ORDER NO. 54


SUBJECT: Amending Department Order No. 318, Series of 1991, by specifying the instances
where a Regional State Prosecutor can designate an Acting City or Prov ir.cial Prosecutor
to handle the investigation/prosecutio1i of a particular case.

In the interest of public service for the efficient delivery ofprosecutori~l services and pursuant to existing laws, paragraph 11 of Department Order No. 318, Series 1991 i~ hereby amended
to read as follows:
"Designate a prosecutor from another province or city within the region
or a state proser:utor 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 of provincial prosecutor voluai'ar#y inhibits
himself by reason of relationship to any of the parties within the sixth civil degree
of consanguinity or affi.nity."
This Order takes effect immediately and shall remain in force until further orders.

(Sgd.) EDUARDO G. MONTENEGRO


Acting Secretary

Copy furnished:
All concerned.

308

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Appendix "E"
Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN.
Department ofJustice
Manila

May 11, 2000

DEPARTMENT CIRCULAR NO. 50


TO:

All Regional State Prosecut0rs/Provincial/City Prosecutors and their Assistants,


State Prosecutors and Prosecution Attorneys in the National Prosecution
Service.

SUBJECT: Specifying Aggravating and Qualifying Circumstances in all Information or


complaints Filed in court
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 modifi~d by the Supreme Court and lowered to
reclusion perpetui..i 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 of People vs. Ramos, 296 SCRA 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, 281 SCRA 463.

i
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 >

Revised Manual for Prosecutors

309

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

For strict compliance.

(Sgd.) ARTEMIO G. TUQUERO


Secretary
Copy furnished:
All concerned.

310

Revised Manual for Prosecutors

I.,
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Appendix "F"
Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN
Department ofJustice
Manila

May 3, 2000

DEPARTMENT CIRCULAR NO. 47


SUBJECT:

PREPARATION OF A TPJAL GUIDE

In the interest of the service and for the purpose of promoting efficient and effective admin-

istration of justice, the preparation of a trialg_~id~ 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,
1 perr.1anent part of the prosecution's records of the case. Its
r>reparation shall be in accordance with the attached matrix.
as accomplished, shall be made

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.

(Sgd.) ARTEMIO G. TUQUERO


Secrel:ary

Revised Manual for Prosecutors

311

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

TRIAL GUIDE

A. The Case
I.

A brief statement of the facts of the case.

II. The prosecution's theory of the case.


III. Applicable laws and jurisprudence.

B. Evidence for the Prosecution

I. The names of prosecution witnesses and the synopsis of the facts to be testified by each.
II. A list of exhibits to be presented and marked in court.
III. A list of aggravating, mitigating, qualifying or other circumstances that are present in the
case.
IV. The facts or points to be proved during the trial.

C. Evidence for the Defense

I.

The defense theory.

II. The names of probable defense. Witnesses and synopsis of the facts to be testified by each.
III. A list of probable exhibits for the defense.
IV. The facts expected to be proved by tll;defense.
l

312

Revised Manual for Prosecutors

I
I
I
I
I

I
I
I
I
I
I
I
I
I
I

I
I
I
I

Appendix "G"

Republika ng Pilipinas
KAGAWARANNGKATARUNGAN
Department ofJustice
Manila

July 03, 2008

DEPARTMENT CIRCULAR NO. 26


TO:

ALL PROSECUTORS

JURISDICTION TO CONDUCT PRELIMINARY INVESTIGATION OF


SUBJECT:
CASES AGAINST PUBLIC OFFICERS/EMPLOYEES

In the Interest of the Service, and the pursuant to the Supreme Court's ruling in Honasan II
vs. Department of Justice (DOJ) Panel oflnvestigative Prosecutors G.R No. 15974 7, 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 con.stitution, 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 1, Title Ill, Book IV of the 1987 Administrative
Code, as well as its responsibility for the investigation and prosecution of all cases
involving violations of penal laws under Sec. 1 of P.D. 1275-which authorities are further confirmed by Secs. 2 and 4 Rule 112 of the Revised Rules on Criminal Procedure.
Hence, the power to investigate or conduct preliminary investigation on charges against

Revised Manual for Prosecutors

313

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

public officers or employees may be exercised by provincial or city prosecutors or their


assistants, either in their regular capacities or as deputized Ombudsman prosecutors.
3. The authority to investigate charges of illegal acts or omissions on the part of public officials is a shared or concurrent authority on the part of the Ombudsman and
th~s Department.- The authority of the Ombudsman to investigate any illegal act or
omission of any public official is not an exclusive authority but rather a shared or concurrent authority in respect of the offense charged. The case of Sanchez V. Demetriou,
227 SCRA 627, citing Aguinaldo v. Domagas, GR No. 98452, September 26, 1991
and Delosa v. Domingo, 191 SCRA 545 (1990), even held that the "non- involvement
of the office of the Ombudsman [in the present case] dces not have any adverse legal
consequences upott the authority of the [panel of] prosecutors to file and prosecute the
information and amended information".
4. DOJ-OMB Joint Circufar No. 95-001 is merely an internal agreement between
the Ombudsman and this Department.- Considering that the Department's authority
is based on Chapter L Title !IL Book IV of the 1987 Administrative Code, Sec. 1 of
PD 1275, as confirmed by Secs. 2 and 4, Rule 112 of the Revised Rules on Criminal
Procedure, there is not even a need to delegate the c0nduct of the preliminary investigation to this Department considering that it has the jurisdiction to do so in the first
place. The fact that all prosecutors are in effect deputized Ombudsman prosecutors
tinder OMB-DOJ Joint-Circular No. 95-001 is a mere superfi11.ity.
5. The Ombudsman may, in the exercise of its primary jurisdiction, take over at ~my
stage only in cases falling within the exclusive jurisdiction of the Sandiganbayan.The Ombudsman, in the exercise of its primary jurisdiction over cases cognizable by
the Sandiganbayan, may take over, at any stage, from any investigating agency of the
government, the investigation such cases.
For proper guidance of all concerned, and in order to prevent any undue delay caused
by issues of jurisdiction between this Department and the Ombudsman, it is thereby clarified
pursuant to existing jurisprudence, laws, rules and regulations, that all prosecutors have legal
authority -to take cognizance of, and conduct preliminary investigation/inquest proceedings on,
all complaints filed before them involving violations of penal laws, regardless of whether 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 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 Sec. 15 (1) ofRA 6670 conformably with
ruling in Honasan vs. Department of Justice (DOJ) Panel of Investigating Prosecutors.
In Accordance with Sec. 4, Rule 112 of the Revised Rules on Criminal Procedure, all resolutions on preliminary investigation for cases involving offenses cognizable by the Sandiganbayan
in the exercise of its original jurisdiction, shall within five (5) days from the issuance thereof,
be forwarded together with the case records to the Ombudsman or his deputy. In such cases, no

314

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

complaint or information maybe filed or dismissed by an investigating prosecutor without


the prior written authority or approval of the Ombudsman or his deputy.

Existing guidelines, procedure and issuance intended to preserve and enhance the joint and
mutual coordination between the office of the Ombudsman and the Department of Justice shall
remain effective and consistent with this Circular and applicable jurisprudence, laws, rules and
regulations.
This Circular takes effect immediately, and shall remain in full force until further orders.

(Sgd.) RAUL M. GONZALEZ


Secretary
Copy furnished:
All concerned.

Revised Manua~ for Prosecutors

315

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Appendix "H"

GUIDE FOR MEDIA PRACTITIONERS ON THE REPORTING AND


COVERAGE OF CASES INVOLVING CHILDREN
Rationale
One of the landmarks of a democratic society is the access to information on matters of
public concern. Thus, Article III, Section 7 of the Philippine Constitution provides: "The right
of the people to information on matters of public concern shall be recognized. Access to official
records, and to documents, and papers pertaining to official acts, transactions or decisions, as well
as to government research data used as basis for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law".
As a cornerstone in a democratic society, i\1edia 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 righ! to access to information likewise stat~s 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 tc media practitioners is to carry out their duty of informing the public effectively and at the same time being aware of the need to protect and enhance the rights of the 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 rais.e 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 p~e:ent the child from tra~a, social stigma, land further suffering arising from inappropriate
pubhc1ty 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.

D,eclaration 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 prj~ary right and duty of
parents in the rearing of the youth for civic efficiency and the development of moral character shall
receive the support of the Government.

, 316

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

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-ii-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 rif,{1ts 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
thei: best interest.
Legal Basis
' Presidential Decree No. 603 (Child and Youth Welfare Code) pri:wides 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 "stnct 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
of the 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.

Revised Manual for Prosecutors

317

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Republic Act No. 9208 (Anti-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 of violence against women and their children shall
be c.onfideritiaL. and the right to privacy of the victim shall be respected. \\'hoeverpublishes
or ca~ses 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 (Juven:le Justice and \VelfareAct of 2006) mandates that all records
and proceedi.ngs involving children in conflict with the law from initial contact until final
disposition of the case shall be considered privileged and confidential.
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 primarily intended for media practitioners in the reporting and coverage of rns~s
involving cbilc!ren.
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 (CIAC).
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
...4

318

"

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Principles and Gulde


Principle 1
Children have an absolute right to privacy. The highest ethical and professional standards in reporting and covering cases of children must be observed such that in all publicity concerning children, the best interests of the child shall be the primary concern.
Guide
1.

In the best interest of the child, the identity of a child victim of abuse, child witness, CIAC or
a CICL shall not be disclosed whether directly or indirectly. No informatioP. 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 confiuentiaiity 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 existir.g 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(!;) of a 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 lev~l of com.fort
of the child when asking questions and the length of time spent in the interview. This is to
prevent the child from. further traum.atisation 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..

Revised Manual for Prosecutors

319

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

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
pomographic 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 ~he 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 r!ght to be heard. Access to medfa 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 jdentity 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 situatfon of children, so that
children are not re-victimized or re-traumatized.
.

320

Revfsed Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

I
I
I
I

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.
3. Media is urged to undertake investigative journalism and to report on violations of children's
rights, and other issues relating to children's safety, privacy, security, education, health and
social welfare and all forms of exploitation ar.d discrimination.
4. There are :!;OVernment agendes responsible for the care of children such as the Department
of Social Welfare and Development (DSWD), or the local social welfare offices, Department
of Labor and Employment (DOLE), Movie and Television Review and Classification Board
(MTRCB), including private organizations or institutions which have adopted and are
implementing guidelines on dealing with child sensitive coverage, reportage, and access to
media. Media organizations are urged to develop their own internal policies and procedures
aligned and consistent with these guidelines, including monitoring systems and protection
mechanisms on the erigagement of children in any media program to ensure that children are
free from physical and psychological risks and that they are not exploited for commercial
purposes.
5. Media organizations are encouraged to exercise self-regulation through responsibility in
programming, publication or posting of any information affecting the physical, social, emotional, mental and moral development of the child. :rhe publication of images or broadcast
of programs containing information detrimental to child development should be shown or
aired outside of the time slots allotted for children.

REFERENCES:
l
RA No. 8369, Sec. 12; RA No. 9165; RA No. 9208, Sec. 7; RA No. 9262, Sec. 44; RA No.
9344, Sec. 23; Supreme Court Rule on the Examination of Child Witnesses and the UN
Convention on the Rights of the Child.

Revised Manual for Prosecutors

321

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

ADDITIONAL REFERENCE
International Federation of 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 standar~ 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 violaticns of the rights of children and issues related to
children's safety, priva.cy, 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 t0 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:
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 chil<lren;
...;..

322

Revis.E;?a Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

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 giver;
Verify the credentials of any organization purporting to speak for or represent the interest
of children;
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 bM should
continuously report the process likely to lead or leading to the occurrences of these events.

Revised Manual for

Pro~ecutors

323

I
I
VALIDATION SESSION PARTICIPANTS
I tt
I
I
I
I
II
I
I
I
I
III
I
I
I
I
I
I
I
I
Appendix "I"

VALIDATION SESSION
City Garden Suites, Mabini, Manila
6-7 March 2008

Region 1
1.
2.
3.
4.
5.

ARSP- Zenaida M. Ferrer - ORSP


CP Myra Sheila M. Nalupta-Bama-OCP Batac City
CP Emmylou Rubang-Mangasar- OCP Candon City
Admin Officer V Elisa A. Daodao-OPP Benguet
AdminAide IV Jemalyn D. Palateo-ORSP

Region

6. SP II Ronnel B. Nicolas - ORS?, Tuguegarao City


7. PP Amador T. Arao - OPP Cagayan
8. 2nd A.PP Dinahlyn S. Gelacio - OPP Isahela
9. lst ACP Mercedes P. Bafiez - OCP Tuguegarao City
10. ACP Cht:rry Marie A. Madrid - OCP Santiago City
11. Admin Asst. II Jonalyn D. Tallod - ORSP
12. Admin Officer V Calixto P. Danao - OPP Cagayan
13. Admin Officer V Ernesto T. Paguirigan - OPP Isabela
14. Admin Officer V Conrado S. Gaffuy - OPP Nueva Viscaya

Region

15. CP Eufracio S. Marquez - OCP Meycauayan City


16. lstAPPFloro F. Florendo -OPPNueva Ecija
17. 2nd ACP Oliver S. Garcia-OCP Angeles Cily
18. Admin Officer V Elvin G. Simon-OPP Pampanga
19. Admin Officer V Aristotle B. Mercado -OCP Angeles City
20. Admin Officer IV Ma. Theresa A. Maclang - OPP Bulacan
21. Admin Officer III Jaime P. Navarro - OCP Olongapo City

Region IV

22. PP Josephine Caranzo-Olivar- OPP Mindoro Oriental


23. CP Miguel Noel T. Ocampo - OCP Calamba City
24. CP Alfredo P. Juarez, Jr. - -OCP Tayabas City
25. Admin Officer V Efoisa 8. Briones - ORSP
26. Admin Officer V Rizalina R. Espina - OCP Batangas City

324

Revised Manual for Prosecutors

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

27. Admin Officer V Josephine A. Desembrana - OCP Lucena City


28. Admin Officer V Eva B. Fule - OCP San Pablo City

Region V
29. RSP Mary May B. De Leoz-ORSP
30. SP II Maria Visia 0. Maldo - ORSP
31. SP II Joyce 0. Guerrero - ORSP
32. PP Regina Coeli F. Gabito-OPP Sorsogon
33. CP Edmundo 0. Legaspi- OCP Masbate City
34. lst APP Annalie T. Velarde - OPP Camarines Norte
35. Admin Officer V Fidelia T. Villaver - OCP Naga Ci1';
36. Admin Officer V Esther R. Mendoza - OPP Masbate
37. Admin Officer Leonardo C. Carido- OPP
38. Sr. Adm Asst. I Maria Rosario E. Sempuego-OPP Camarines Sur

2d VALIDATION SESSIONS
Cebu Waterfront Hotel, Lahug, Cebu City
3-4 April 2008

Region VI
1.
2.
3.
4.
5.
6.
7.
8.

SP II Kenneth John N. Amamanglon-ORSP


41h ACP Peter D. Baliao - OIC-OCP Iloilo
PP Daniel M. Villaflor- OPP Negros Occidental
Admin Asst. II Remedios A. Jamelo - ORSP
Admin Officer V Consolacion E. Pacificar- OPP Iloilo
Admin Officer IV Henry P. Dela Cruz - OCP Iloilo
Admin Officer V Virgilio L. Leeping - OPP Negros Occidental
Admin Officer III Myrna S. Venegas - OCP Bacolod City

Region Vlll
9. RSP Fernando K. Gubalane - ORSP
10. SP II Llena G. !pong-Avila- ORSP
11. CP Nicolas C. Sellon - OCP Cebu City
12. CP Aida A. Sanchez - OCP, Naga City
13. lstAPP Macario I. Delusa- OPP Bohol
14. PP Diosdado D. Hermosa- OPP Oriental Negros
15. AdminAsst. II Jasmine 0. Miro-ORSP
16. Admin Officer IV Letecia A. Lacsican - OCP Dumaguete City
17. Admin Officer V Milagros B. Oncog-OCP Tagbilaran
18. Admin Officer V Cecil B. Gadrinab - OPP Cebu

Revised Manual for Prosecutors

315

I
I
I

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

Region VIII
19. RSP Francisco Q. Aurillo, Jr. - ORSP
20. ARSP Bibiano C. Reforzado - ORSP
21. PP Cesar M. Merin - OPP Leyte
22. APP Agustin M. Avafon - OPP, Western Samar
23. istAPP,Carlos R: Daiz, Jr.'- OIC-OCP, Catbalogan, Samar
24. Admin OfficerV Alma R. Ballete - ORSP
25. Admin Officer V Alfredo A. Bardaje - OPP Wester Samar
26. Admin Officer V Norma I. Carbonilla - OPP Southern Leyte
27. Admin Officer V Cesaria N. Cazon - OCP Calbayog City
28 .. Admin Officer III Elias U. Viver0, Jr. - ORSP

3n1 VALIDATION SESSION

Cherry Blossoms Hotel, Manila


12 June 2008
Office of the Chief State Prosecutor
1.
2.
3.
4.
5.

CSP Jovencito R. Zufio


ACSP Severino H. Gafia, Jr.
ACSP Migcel F. Gudio, Jr.
ACSP Richard Anthony D. Fadullon
Ms. Evelyn B. Magsumbol

OCP Antipolo City


6. 1st ACP Emmanuel U. Pascual
7. ACP Gerardo P. Ba:ot
8. Ms. Marita P. Clutario
OC~

Caloocan City

9. CP Ramon E. Rodrigo
10. 1st ACP Alvin A. Almora
11. Ms. Luzviminda D. Toledo

OCP Las Piiias


12. CP Marilyn Cynthia Fatima M. Luang
l3. Pros. II Benthom Paul C. Azares
14. Ms. Flordeliza B. Rivera

. 326

Revised Manual for Prosecutors

I
I
I
I
I
I

I
I
I
I
I
I
I
I
I
I
I
I
I

OCP Makati City


15. CP Feliciano A. Aspi
16. lstACP Romulo I. Nafiola
17. Ms. Isabelita V. Mejia
OCP Malabon & Navotas City
18. 4th ACP Lemuel B. Nobleza
19. Mr. Arvin Z. Manapat
OCP Mandaluyong City
20. 2nd ACP Flordeliza M. Silao
21. ASPRO II Jenalin R. Cudillo
22. Ms. Elizabeth M. Santos
OCPManila
23. 2nd ACP Antonio R. Rebagay
24. 2nd ACP Joselito D.R. Obejas
25. Ms. Estela N. Dela Cruz
OCP Marikina City
26. CP Jason A. Amante
27. lstACPNestorV. Gapuzan
28. Ms. Lorena F. Panopio
OCP Muntinlupa City
29. CP Edward M. Togonon
30. 1st ACP Florecita V. Baiza-Bilbes
31. Ms. Zenaida D.J. Europa
OCP Paraiiaque City
32. CP Joaquin T. Escobar
33. ACP Sheila L. Baes
34. Ms. Anita R. Cruz
OCP Pasay City
35. 1st ACP Manuel A. Ortega
36. znd ACP Orlando G. Mariano
37. Mr. Eustaquio b. Bufiag
Revised Manual for Pro~ecutors

327

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

OCP Pasig City


38. lstACP Amerhassan C. Paudac
39. 2nd ACP Ma. Anunciacion M. Hipol
40. Ms. Mary Alma Y. Afalla

OCPRizal
41. PP Edgardo C. Bautista
42. APP Gloria M: De Guzman
43. Ms. Emily R. Trajano

OCP Quezon City


44. 2d ACP Dindo G. Venturanza
45. Ms. Oliva 0. Tugonon

OCPSanJuan
46. CP Tomas T. Ricalde
47. ACP Myrna B. Binalay
48. Ms. Noemi G. Reyes

OCP Taguig City


49. CP Archimedes V. Manabat
50. 41h ACP Patrick Noel P. De Dios
51. Ms. Oliva D. Pabalan

OCP Valenzuela City


52. CP Hilda F. lbuyan
53. ACP Eriberto A. Aricheta
54. Ms. Thelma P Encarnacion

4th VALIDATION SESSIONS


Dnvao Waterfront Hotel, Davao City
26-27 June 2008
Region IX
1.
2.
3.
4.
328

RSP Wilfrido M. Yu - ORSP


CP Roselyn M. Mamon - OCP Zamboanga City
CP Jaime M. Machutes- OCP Isabela City, Basilan
PP Jeric S. Kagaoan - OPP Ipil, Zamboanga Sibugay
Revised Manual for Prosecutors

I
Region X

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

5.
6.
7.
8.
9.

RSP Jaime L. Umpa-ORSP


CP Ma. Corazon B. Gaite-Llanderal - El Salvador City, Misamis Oriental
SP II Merlynn B. Uy- ORSP
CP Carlos M. Rubin - Tangub City
CP Fidel A. Macauyag - Cagayan de Oro City

Region XI
I 0.
11.
12.
13.
14.
15.

PP Ruben L. Pasamonte - OPP Davao del Norte


PP _.<\rtemio A. Tajon - OPP Davao del Sur
CP Raul B. Bendigo - OCP Davao City
CP Janet Grace D. Fabrero -OCP Panabo City
CP Noel P. Palma - OCP Tagum City
CP Barbar::. Mae P. Flores - QCP Davao City

Region XII
16. RSP Maranao C. Danganan - ORSP
17. PP Emmanuel S. De Peralta - OPP Sultan Kudarat
18. ACP Renato P. Consehit - OCP 1acurong City
19. CP Al P. Calica - OCF Kidapawan City
20. 1st APP Felipe Vicente A. Velasco - OPP Sarangani Province

Region XIII
21.
22.
23.
24.
25.

RSP Horacio C. Gonzaga-ORSP


PP Marigel S. Dagani-Hugo - OPP Agusan del Norte
1st APP Fiorito G. Cuartero - OPP Surigao del Sur
PP Danny C. Serrano - OPP Cabadbaran City
CP Manuel N. Tesioma, 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. Bait- OPP Shariff Kabunsuan
30. ACP Ramy Guiling - OCP Marawi City

Revised Manual for Prosecutors

329

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

INTERAGENCY ROUNDTABLE DISCUSSIONS


Camp Crame, Quezon City
20 June 2008

Supreme Court
1. Justice Romeo J. Callejo, Sr.
2. ACA Edwin A. Villasor

Ombudsman
3. Atty. Elvira C. Chua
4. Dir. Mothalfo Onos

Office of the Special Prosecutor


5. Pros. Ma. Hazelina T. Militante
6. Atty. Joetferson B. Toribio

Office of the Solicitor General


7. Sr. State Solicitor Luis F. Simon
8. Atty. Gloria Victoria Taruc

Commission on Elections
9. Dir. Ferdinand T. Rafanan
10. Dir. Josllyn P. Demesa

Department of Environment and Natural Resources


11. Atty. Alton C. Durban

Department of Social Welfare and Development


12. Ms. Maricel C. Deloria
13. Maria Cristina Nava

330

Revised Manual for Prosecutors

I
I
I
I
I
I
I

Philippine National Police


14. P/Sr. Supt. Lyndon G. Cubos
15. P/Sr. Insp. Roque A. Merdegia, Jr.
16. Atty. Virgilio T. Pablico

Juvenile Justice Welfare Council


17. Atty. Ma. Victoria V. Cardona

Dangerous Drugs Board


~

l
~,

!
,~

II
I i~
I
I
I
I
I
I
I
I

18. Atty. Julieto A. Roxas


19. Atty. Cesar G. Posada

Philippine Drug Enforcement Agency


20. Sr. Usec Dionisio Santiago
21. Maj. Roy Anthony Derilo
22. Atty. Peter Tyrone V. Chan
23. A tty. Alvaro Lazaro

Bureau of Customs
24. Dep. Comm. Reynaldo V. Umali
25. Dir, Balmyrson M. Valdez
26. Atty. Tristan Langcay
27. Atty. Erwin Mendoza

Integrat~d

Bar of the Philippines

28. Atty. Danilo Cortina


29. Atty. Jose Amor Amorado
30. Atty. Aileen L. Duremdes

Anti-Money Launderign Council


31. Atty. Vicente S. Aquino
32. Atty. Julia C. Bacay-Abad

Revised Manual for Prosecutors

331

I
I
I
I
I
I
I
I

Commission on Human Rights


..

33. Atty. Flora Atilano


34. Atty. Gilbert D. Boiser

Public Attorneys' Office


35. Dep. Chief Pub. Atty. Macapangcat Mama

Bureau of Internal Revenue


36. Atty. Rosario M. Padilla

Department of Justice
37. CSP Jovencito R. Zuno

I
I
I
I
I
I.
I
I
I
I
I

Revised Manual for Prosecutors

332

'".