DOJ-NPS Manual for Prosecutors 2008

Revised

MANUAL PROSECUTORS for

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Special Sections on Human Rights and Tax Cases 2008 D EPARYMF.NT Of JU§illGE

FOR OfF t:ueuAl USIE ONI. Y

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 Coun1er-affidavlt� by the Rcspond,1111/s .............. , St: I. Extension ofTimc: Within WJ-1ich to Suhmi1 Respondent'� C,iunlcr-A lfolavi1 ................................................... 89 2. Filing or 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 FHing of a Motion to Dismiss or a Motion fbr a Bill of Pa11iculars and Other Similar Pleadings ............................. 90 4. Action on Motions to Dismiss on the Basis of an Affidavit of Desistance .................. '..................................................................... 90 5. Suspension of Proceedings Due to the Existence ofu. Prejudicial Question ....................................................................... 91 a. Concept of a Prejudicial QU(!Stion ......................................... 91 b. Elements of a Pre:judicial Question ......................................... 9 I 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. When to Set Case for Clarifluatory Questioning ..................: .............. 92 L No Righi to Elrnminc or Cross-Hxamine ...................................... 92 2. RecordsiNotes During the Clmifieatory Hearing ........................... 92 3. No Right to Counsel................;...................................................... 92 F. Reply-Affidavits, Rejoinders and Memornnda; When to Allow the Filing Thereof .............................. " ...................... 93 G. When Co111plaints May he Consolid:itcd ............................................ 93 I I. Actions 011 Motions lo Disqnalil'y/lnhibit ......................................... 94 I. Submission of the Case for Rusol11li1111 ............................................... 94 .I. Preparation of the Rcmilulio11 .......................................... :.... ............ ,.. 94 I. When There is Lack of l'rnbahle Cnnse ........................................ 94 2. When There is a Finding of Probable Cause .... ............................ 94 3. Form of the Resolution and Number of Copies .......... '. .................. 95 a. Caption of Resolution ...........................................: .................. 95 b. Names of Parlie$ ...................................................................... 9 5 e. 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 he Furnished a Copy of the Resolution .... 98 h. Signatures uml Initial8 of Investigating Prosecutor ................. 98 4. Period lo Conduct the Prcliminmy Investigation ........ :................ ;. 99

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c. when the person to be arrested is a prisoner who has esrnped from a penal establishment or place where. he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. For this purpose, the inquest prosecutor may summarily examine the arrest­ ing officers on the circumstances surrounding the arrest or apprehension of the detained person. Meaning ofProbable Cause in Inquest Cases Probable cause means an actual belief or reasonable grounds of suspicion (People vs. Tudtud, GR No. 14403 7, Sept. 26, 2003) that the person to be arrested is about to commit or i.s attempting to commit a crime, or is in the act of com­ mitting 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 arrested or detained; prepare a resolution indicating the reasons for. the action taken; and forward the same, together with the record 0£ the case, 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 statements of the complainant and his will1esses and other supporting evidence (ple,ase refer to NPS INQ Form No. 03, s. 2008 on p. 66 of this Manual).

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4. It is a Judicial Inqniry or Proceeding. The conduct of a preliminary investigation, which is defined as "an inquiry or proceeding for the purpose of detennining whether there is sufficient ground to en­ gender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof, and shonld 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 quasi­ judicial officer (Cruz v. People, 23 7 SCRA 439, reiterating Cojuangco v. PCGG, 190 SCRA 226 [1990)). 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. (Cntz, Jr. v. People, 223 SCRA 439 [1994]) C. RIGHT TO A PRELIMINARY INVESTIGATION 1. It is not a Constitutional Right. The right to a preliminary investigation is not a constitutional right, meaning, it is not expressly provided for in the Constitution. It is not therefore guaranteed by the Constitution unlike for instance, the right to counsel or to remain silent which is expressly embodied under Sec. 12 of Article III of the Constitution. 2.

It is Merely a Statutory Grant. I

Rather, the right to a preliminary investigation is a statutory grant (Salonga vs. Pano, 134 SCRA 277). Hence, a law denying the right to a preliminary investigation is not unconstitutional (Lozada vs. Hernandez, 92 Phil. 1051). For instance, Sec. 6 [fom1erly Sec. 7] of Rule 112 of the Revised Rules op Criminal Procedure provides for the filing of the Infonnation 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 i1Tegularity of the preliminary investigation that was conducted, but instead submits himself for arraignment and go to trial (People v. Valencia, 214 SCRA 88; People v. de Asis, 228 SCRA 267). In inquest cases, the accused impliedly waives his right to a preliminary inves­ tigation, if he fails to invoke the same within five (5) days from the time he learns 78

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d. For crimes of reckless imprndence resulting in homicide arising from vio\ation of the Land Transportation and Traffic Code, bail shall be Php30,000.00 per deceased person. e. For violation of Batas Pambansa Big. 22, bail shall be fifty per c.ent (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 fol- , lows: a. fine not exceeding Php2,000.00, bail is notrequired. b. Fine of more than Php2,000.00, bail shall be 50% of the fine but should,,. not exceed Php30,000.00. c. ln case of reckless imprndence resulting to damage to property, bail". shall be three-eights (3/8) of the value of the damage but not exceed\ ing Php30,000.00 except when covered by the Rules on Summary' Procedure.

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4. Bail based on the maximum penalty, multiplied by Phpl0,000.00 shall b applied to the following offenses under the following laws: a. Republic Act No. 9165 (Comprehensive Dangerous Drngs Act of 2002);' b. Republic Act No. 6539 (Anti-Carnapping Act), as amended by RA 7659;,

c. Republic Act No. 7659 (for other crimes covered by it); d. Presidential Decree No. 1866 (Illegal Possession ofFireanns,Ammunitio or Explosives), as amended by RA 8294;

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e. Republic Act No. 1937 (Tariff and Customs Code), as amended; or

f. Rebellion, insurrection or coup d'etat as amended by Republic Act N 6968. g. Republic Act No. 7610, as atnended (Special -Protection of Childr Against Child Abuse, Exploitation and Discrimination Act) h. Republic Act No. 9208 (Anti-Trafficking !n Persons Act of 2003)

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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 family and loved ones of disappeared persons cannot be derailed in their search by official refusal to open public records because of the Writ of Habeas Data 2.

By whom.filed ·

The petition for a Writ of Habeas Data can both be a preventive and a curative remedy: a. As a preventive remedy, it qm be filed by: •

any person whose life, liberty, or security is being threatened, or

• who is being subjected to political harassment o Such persons can compel the disclosure of official records so that any misinformation regarding his or her person can be corrected or expunged. o For example, a person may file a petition so that political harassments and threats to his or her life, liberty, or security on the basis of alleged information regarding affiliation with a terrorist group can be averted. In such a case, any arrest ef­ fected against him or her will no longer have any legal basis because the courts have already ordered rectification of his or her records which are in the custody of officials of the State. b. As a curative remedy, however, like in cases, where a person has al­ r:eady been abducted and involuntarily disappeared, the petition may be filed by: • his or her immediate family, or •

collateral relatives, or

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• Republic Act No. 9208 (Anti"Trafficking in Persons Act of 2003) provides for confidential­ ity 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 Wonien and Their Children Act of 2004) provides that all records pertaining to cases of violence against women and their children shall be confidential. .. and the right to privacy of the victim shall be respected. Whoever publishes or causes to be published, in any format, the name, address, telephone number, school, busi­ ness 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. I

• Republic Act No. 9344 (Juv11nile Justice and WelfareAct of2006) mandates that all records and proceedings involving children in conflict with the law from initial contact until final 1 disposition of the case shall be considered privileged and confidential. • Rule on Examination of Child Witnesses as promulgated by the Supreme Court I I

The said laws/rule provid�s for penal sanctions for any. violation of the above�entioned confidentiality provisions. Coverage and Definitions. This guide is primarily intended for media practitioners in the reporting and coverage of cases involving children. !

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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, pub­ lishers, 'reporters, columnists, writers, photo journalists, cameramen, announcers, program hosts, program content producers and directors and film content producers and directors. I

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 uhable 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 µie following: a. Child Victim - is a child '1¥ho suffered from abuse, exploitation, neglect and discrimination (e.g. sexual, physical, e1ilotional, verbal, psychological, economic). The term includes Children Involved in Artiled Conflict (CIAC). b. Child in Conflict with th� Law (CICL)-refers to a child who is alleged as, accused of, or adjudged as, having conimitted an offense .under Philippine Jaws c. Child Witness - is any person who at the time of giving testimony is below the age of eighteen (18) years

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