Guidelines for Decongesting Holding Jails by Enforcing the Rights of Accused Persons to Bail and to Speedy Trial

Section 1

A preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well founded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof and should be held for trial.[35] A preliminary investigation is essentially a judicial inquiry since there is the opportunity to be heard, the production and weighing of evidence, and a decision rendered on the basis of such evidence. In this sense, the investigating prosecutor is a quasi-judicial officer.[36]

Sec 2

A preliminary investigation is intended: 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;[37] and to protect the State from having to conduct useless and expensive trials.[38]

Sec 3

The conduct of a preliminary investigation is a substantive right which the accused may invoke prior to or at least at the time of plea, the deprivation of which would be a denial of his right to due process.

Sec 4

In case an information is amended, a new preliminary investigation shall be conducted if the amended charge is not related to the crime originally charged; if there is a change in the nature of the crime charged; or if the information on its face is null and void for lack of authority to file the same.

Sec 5

The right to a preliminary investigation may be invoked only in cases cognizable by the Regional Trial Court. The right is not available in cases triable by inferior courts.

Sec 6

The following may conduct a preliminary investigation;[39] Provincial or City Prosecutors and their assistants; Judges of Municipal Trial Courts and Municipal Circuit Trial Courts; National and Regional State Prosecutors; and Other officers as may be authorized by law.[40] Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper court in their respective territorial jurisdiction.[41]

Sec 7

A preliminary investigation proceeding is commenced: by the filing of a complaint by the offended party or any competent person[42] directly with the Office of the Investigating Prosecutor or Judge; by referral from or upon request of the law enforcement agency that investigated a criminal incident; upon request of a person arrested or detained pursuant to a warrantless arrest who executes a waiver of the provisions of Article 125 of the Revised Penal Code, as amended; by order or upon directive of the court or other competent authority; or for election offenses, upon the initiative of the Commission on Elections, or upon written complaint by any citizen, candidate, registered political party, coalition of registered parties or organizations under the party-list system or any accredited citizen arm of the Commission on Elections.[43]

Sec 8

For purposes of preliminary investigation, the complaint filed with the prosecutor's office shall, as far as practicable, be accompanied or covered by an Information Sheet and shall state, among others the full and complete names and exact home, office or postal addresses of the complainant and his witnesses; The full and complete name and exact home, office or postal address of the respondent; The offense charged and the place and exact date and time of its commission; and 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.

Sec 9

The complaint shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting proofs or documents, if any. The affidavits shall be sworn to before a Provincial, City or State Prosecutor, or other government official authorized to administer oaths or, in their absence or unavailability, a notary public, who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.[44] When the preliminary investigation is commenced by referral from or upon request of the law enforcement agency that investigated the incident, the affidavits of the complainant and his witnesses to be submitted by the said agency shall consist of the original or duplicate original or certified machine copies thereof.

Sec 10

The complaint and supporting affidavits shall be in such number of copies as there are respondents, plus four (4) copies for the court/official file. Where a complaint charges multiple offenses which cannot be the subject of one indictment 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.

Sec 11

If the offense charged is punishable by imprisonment not exceeding one (1) year or a fine not exceeding Five Thousand Pesos (5,000.00) and the parties to the case are all residents of the same city or municipality, the complaint shall be accompanied by the certification required under Section 412 (a) of R.A. Act No.7160, "The Local Government Code of 1991.[45]

Sec 12

The absence of a barangay certification shall not be a ground for the dismissal of the complaint. The Investigating Prosecutor shall, however, make the corresponding referral of the complaint to the proper Lupong Tagapamayapa for appropriate action pursuant to the provisions of Chapter 7, Book III of R.A. No.7160. In connection therewith, the complainant may be summoned for the purpose of delivering the referral to the Chairman of the appropriate barangay and to secure the necessary certification within thirty (30) days. In any of the following cases. the Investigating Prosecutor shall proceed to take cognizance of the complaint for purposes of preliminary investigation[46] even if there is no Barangay Certification: where the respondent is under detention; or where the respondent has been deprived of personal liberty calling for habeas corpus proceedings; or where the case may be barred by the Statute of Limitations.

Sec 13

Within ten (10) days after the filing of the complaint, the Investigating Prosecutor shall either dismiss the same if he finds no ground to continue with the inquiry, or issue a subpoena to the respondent, attaching thereto a copy of the complaint together with the affidavits of witnesses and other supporting documents. [47]

Sec 14

The following, among others, shall constitute sufficient basis for the outright dismissal of a complaint: that the offense charged in the complaint was committed outside the territorial jurisdiction of the Office of the Investigating Officer;[48] that, at the time of the filing of the complaint, the offense charged therein had already prescribed; that the complainant is not authorized under the provisions of pertinent laws to file the complaint; that the acts and/or omissions alleged in the complaint and/or the supporting affidavits do not sufficiently show that a criminal offense or violation of a penal law has been committed; or that the complaint and the supporting affidavits are unsigned and/or have not been duly subscribed and sworn to as prescribed under the Rules on Criminal Procedure.

Sec 15

Personal service of documents by investigating prosecutor. -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 respondent shall have the right to examine all other evidence submitted by the complainant. 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 or forfeiture of respondent’s right to be furnished copies of the complaint, supporting affidavits and other documents, as well as to examine all other evidence submitted by the complainant. For the purposes specified in the first paragraph hereof, the Investigating Prosecutor shall not require the appearance before him of the respondent or other parties who are residing in distant places. In such cases, the Investigating Prosecutor shall issue and send the subpoena, together with copies of the complaint, supporting affidavit and other documents, by registered special delivery mail with return card.

Sec 16

To expedite the conduct of a preliminary investigation, the following guidelines shall be observed in the service of subpoenas Service of subpoena and all papers/documents required to be attached thereto shall be b'~- personal service by regular process servers. In their absence, the cooperation of the Provincial City/Municipal Station Commanders of the Philippine National Police (PNP) may be requested for the purpose. 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 the name and return address of the sender and the Typewritten/printed phrase "First Notice Made on______________", thus instructing the postmaster/postal employee of the necessity of informing the sender of the date the first notice was made on the addressee; and the typewritten/printed request: "If not claimed within five (5) days from first notice, please return to sender." Upon receipt of the unclaimed/returned envelope, the Investigating Prosecutor may then proceed to resolve the complaint on the basis of the evidence presented by the complainant.[49]

Sec 17

If a respondent cannot be subpoenaed, as, for instance, he transferred residence without leaving any forwarding address, the Investigating Prosecutor shall base his resolution on the evidence presented by the complainant.

Sec 18

In cases where the respondent is subpoenaed, he shall within ten (10) days from receipt of the complaint and other documents, submit his counter-affidavit and other supporting documents which shall be sworn to and certified as prescribed in the second sentence of par. 1 of Section 9 this Part, copies of which shall be furnished by the respondent to the complainant.[50] Only a counter-affidavit subscribed and sworn to by the respondent before the Public Prosecutor can dispute or put at issue the allegations in the complaint. A memorandum, manifestation or motion to dismiss signed by the counsel cannot take the place of a counter-affidavit. Thus, a respondent relying on the manifestation, memorandum or motion to dismiss of his counsel is deemed to have not controverted complainant's evidence. [51] However, if such memorandum, manifestation or motion to dismiss is verified by the respondent himself, the same may be considered a counter-affidavit.

Sec 19

Motion for dismissal of bill of particulars.-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 counter-affidavits and other supporting documents. All the grounds 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. The Investigating Prosecutor may 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: the circumstances specified in sub-paragraphs (a), (b)9 (c) and (d) and (e) of Section 14 of this Part; the fact that the complaint, or one similar thereto or identical therewith, has previously been filed with the Office and has been fully adjudicated upon on the merits after due preliminary investigation proceedings; or the extinction of respondents criminal liability by reason of death, pardon, amnesty, repeal of the law under which prosecution is sought, or other legal causes.

Sec 20

The following cases shall, as far as practicable, be consolidated for preliminary investigation purposes and assigned to and jointly heard by one Investigating Officer: charges and counter-charges; cases arising from one and the same incident or transaction or series of incident or transactions; and cases involving common parties and founded on factual and/or legal issues of the same or similar character.

Sec 21

No motion or request for extension of time to submit counter-affidavits shall be allowed or granted by the Investigating Prosecutor except when the interest of justice demands that the respondent be given reasonable time or sufficient opportunity to: engage the services of counsel to assist him in the preliminary investigation proceedings; examine or verify the existence, authenticity or accuracy of voluminous records, files, accounts or other papers or documents presented or submitted in support of the complaint; or 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 Provincial/City Prosecutor concerned.

Sec 22

Upon motion of a party, or when raised in a counter-affidavit, the Investigating Prosecutor may suspend the preliminary investigation proceedings if the existence of a prejudicial question is satisfactorily established.[52] The existence of a prejudicial question shall, however, not be a ground for the dismissal of the complaint.

Sec 23

A prejudicial question is one the resolution of which is a logical antecedent of the issue involved in a case and the cognizance of which pertains to another tribunal.[53] 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.[54]

Sec 24

The essential elements of a prejudicial question are: the civil action involves an issue similar or intimately related to the issue raised in the criminal action; the resolution of such issue determines whether or not the criminal action may proceed ;[55] and the cognizance of the said issue pertains to another tribunal.[56]

Sec 25

No resolution or order suspending the preliminary investigation based on the existence of a prejudicial question shall be issued by the Investigating Prosecutor without the written approval of the Provincial/City Prosecutor concerned or his duly designated assistant.

Sec 26

The Investigating Prosecutor shall not require or allow the filing or submission of reply-affidavits and/or rejoinders, except 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 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 case. In such a case, the period for the submission of reply affidavits or rejoinders shall in no case exceed five (5) days unless a longer period is authorized by the Provincial/City Prosecutor concerned.

Sec 27

The Investigating Prosecutor may set a hearing 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. In said hearing, the parties shall be afforded the opportunity to be 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 or witnesses concerned.[57] The Investigating Prosecutor shall make a record of the questions asked and answers given during the clarificatory questioning which shall be signed by the parties concerned and/or their respective counsel. Said notes shall form part of the official records of the case. Parties who desire to file a petition for review of the Investigating Officer's resolution may, at their option, cite specific portions of the oral testimony by reference to the transcript of stenographic notes. Said notes shall only be transcribed in cases of appeal and shall be obtained at the expense of the interested party.

Sec 28

The Investigating Prosecutor shall case submitted for resolution: when the respondent cannot 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;[58] or 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 [59]

Sec 29

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.

Sec 30

If the Investigating Prosecutor finds that probable cause exists, he shall prepare the resolution and the corresponding information or complaint in the appropriate cases. Where the respondent is a public officer or employee or a member of the Philippine National Police (PNP), the Investigating Prosecutor shall also determine whether or not the offense with which he is charged was committed in relation to his office and, if so committed, such fact should be alleged in the information to be filed with the Sandiganbayan through the Ombudsman [60]

Sec 31

After a case under preliminary investigation has been submitted for resolution under the provisions of the preceding Section but before promulgation of the resolution, the preliminary investigation may be reopened for the purpose of receiving new and/or additional evidence upon the prior authorization given by the Provincial/City Prosecutor concerned or upon motion of the interested party, Provided, That in the latter case, it shall be subject to the following conditions: the motion is verified and a copy thereof furnished the opposing party; the motion is accompanied with the new and/or additional evidence; and the motion sufficiently and satisfactorily shows valid and justifiable reason for the failure of the movant to submit the new and/or additional evidence during the preliminary investigation proceedings.

Sec 32

Upon receipt of the records of the case from the Municipal Trial Court or Municipal Circuit Trial Court which conducted the Preliminary Investigation, the Prosecution Office shall review the case based on the existing records, without requesting the parties to submit memorandum of authorities,[61] and may affirm, modify or reverse the finding of the Municipal Trial Court judge. However, if the interest of justice so requires, the prosecutor may conduct a full blown reinvestigation giving the parties the opportunity to submit additional evidence, and thereafter, resolve the case on the basis of the totality of the evidence thus adduced.

Sec 33

The Investigating Prosecutor shall not require nor allow the filing or submission by the parties of memoranda unless the case involves difficult or complicated questions of law or of fact. In any event, the filing of memoranda by the parties shall be done simultaneously and the period therefore shall not exceed ten (10) days, unless a longer period is authorized by the Provincial/City Prosecutor concerned.

Sec 34

The Investigating Prosecutor shall resolve the case within ten (10) days from the time the case is deemed submitted for resolution,[62] unless otherwise provided herein or a longer period is authorized by the Provincial/City Prosecutor concerned.

Sec 35

The resolution shall be written in the official language, personally and directly prepared and signed by the Investigating Prosecutor. It shall be prepared in as many copies as there are parties, plus three (3) additional copies.

Sec 36

A resolution shall contain a caption and a body.

Sec 37

The caption of the resolution shall indicate the: names of all the complainants and all of the respondents; Case Number, otherwise known as the Investigation Slip Number or 1.8. No.; the offense charged; the date of the filing of the complaint with the office; the date of the assignment of the case to or receipt of the case record by the Investigating Officer; and the date the case was submitted for resolution.

Sec 38

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. The name of the victim or injured party, not their representative, shall appear in the caption. In cases referred to the prosecution by the police 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. In homicide or murder cases, the name of the victim or of the complainant shall be in the caption. The heirs or relatives of the slain victim shall be indicated as "Legal heirs of deceased (name or person killed)", represented by "(either the surviving spouse, father or mother)". 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)".

Sec 39

The number of a case shall indicate the year and month; it was filed and its entry number in the log book of the office, e.g. 97 (year)A(month)-024(entry number).

Sec 40

For offenses that are punishable under the Revised Penal Code, the caption shall set forth the denomination of the offense and the specific article and paragraph of the statute violated. Where there is another charge or countercharge in the same case having one case number or in case of a consolidated resolution involving two or more criminal cases with two or more docket numbers, the caption shall also contain said information.

Sec 41

In general, the body of resolution should contain: a brief summary of the facts of the case; a concise statement of the issues involved; and the findings 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.

Sec 42

As a rule, the body of a resolution is made up of four parts, namely: