Blog Lecture No. 60: Preliminary Investigation

This is a milestone for me in two ways:

First, this is my 60th Blog Lecture. I never dreamed I already have 60 of these.

Second, this is my first Blog Lecture in this new blog. I will put a link to this in the Corner Blog, but I will put the content here.

Just bear me out on this experiment and hope it works…

What are the prevailing rules regarding preliminary investigation?

The pertinent rules on preliminary investigation can be found on Rule 112 of the Revised Rules of Criminal Procedure:

RULE 112

Preliminary Investigation

Section 1. Preliminary investigation defined; when required. — Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.

Except as provided in section 7 of this Rule, a preliminary investigation is required to be conducted before the filing of a complaint or information for an offense where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to the fine. (1a)

Section 2. Officers authorized to conduct preliminary investigations. —

The following may conduct preliminary investigations:

(a) Provincial or City Prosecutors and their assistants;

(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;

(c) National and Regional State Prosecutors; and

(d) Other officers as may be authorized by law.

Their authority to conduct preliminary investigations shall include all crimes cognizable by the proper court in their respective territorial jurisdictions. (2a)

Section 3. Procedure. — The preliminary investigation shall be conducted in the following manner:

(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. 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 who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents.

The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense.

Objects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing at the expense of the requesting party.

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant.

(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or cross-examine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned.

The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or from the expiration of the period for their submission. It shall be terminated within five (5) days.

(f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial. (3a)

Section 4. Resolution of investigating prosecutor and its review. — If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint.

Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of such action.

No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy.

Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by himself, file the information against the respondent, or direct any other assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation.

If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman. (4a)

Section 5. Resolution of investigating judge and its review. — Within ten (10) days after the preliminary investigation, the investigating judge shall transmit the resolution of the case to the provincial or city prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction, for appropriate action. The resolution shall state the findings of facts and the law supporting his action, together with the record of the case which shall include: (a) the warrant, if the arrest is by virtue of a warrant; (b) the affidavits, counter-affidavits and other supporting evidence of the parties; (c) the undertaking or bail of the accused and the order for his release; (d) the transcripts of the proceedings during the preliminary investigation; and (e) the order of cancellation of his bail bond, if the resolution is for the dismissal of the complaint.

Within thirty (30) days from receipt of the records, the provincial or city prosecutor, or the Ombudsman or his deputy, as the case may be, shall review the resolution of the investigating judge on the existence of probable cause. Their ruling shall expressly and clearly state the facts and the law on which it is based and the parties shall be furnished with copies thereof. They shall order the release of an accused who is detained if no probable cause is found against him. (5a)

Section 6. When warrant of arrest may issue. — (a) By the Regional Trial Court. — Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information.

(b) By the Municipal Trial Court. — When required pursuant to the second paragraph of section 1 of this Rule, the preliminary investigation of cases falling under the original jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court may be conducted by either the judge or the prosecutor. When conducted by the prosecutor, the procedure for the issuance of a warrant or arrest by the judge shall be governed by paragraph (a) of this section. When the investigation is conducted by the judge himself, he shall follow the procedure provided in section 3 of this Rule. If the findings and recommendations are affirmed by the provincial or city prosecutor, or by the Ombudsman or his deputy, and the corresponding information is filed, he shall issue a warrant of arrest. However, without waiting for the conclusion of the investigation, the judge may issue a warrant of arrest if he finds after an examination in writing and under oath of the complainant and his witnesses in the form of searching question and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice.

(c) When warrant of arrest not necessary. — A warrant of arrest shall not issue if the accused is already under detention pursuant to a warrant issued by the municipal trial court in accordance with paragraph (b) of this section, or if the complaint or information was filed pursuant to section 7 of this Rule or is for an offense penalized by fine only. The court shall then proceed in the exercise of its original jurisdiction. (6a)

Section 7. When accused lawfully arrested without warrant. — When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a peace office directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person.

Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen (15) days from its inception.

After the filing of the complaint or 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 in this Rule. (7a; sec. 2, R.A. No. 7438)

Section 8. Records. — (a) Records supporting the information or complaint. — An information or complaint filed in court shall be supported by the affidavits and counter-affidavits of the parties and their witnesses, together with the other supporting evidence and the resolution on the case.

(b) Record of preliminary investigation. — The record of the preliminary investigation, whether conducted by a judge or a fiscal, shall not form part of the record of the case. However, the court, on its own initiative or on motion of any party, may order the production of the record or any its part when necessary in the resolution of the case or any incident therein, or when it is to be introduced as an evidence in the case by the requesting party. (8a)

Section 9. Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure. —

(a) If filed with the prosecutor. — If the complaint is filed directly with the prosecutor involving an offense punishable by imprisonment of less four (4) years, two (2) months and one (1) day, the procedure outlined in section 3(a) of this Rule shall be observed. The prosecutor shall act on the complaint based on the affidavits and other supporting documents submitted by the complainant within ten (10) days from its filing.

(b) If filed with the Municipal Trial Court. — If the complaint or information is filed directly with the Municipal Trial Court or Municipal Circuit Trial Court for an offense covered by this section, the procedure in section 3(a) of this Rule shall be observed. If within ten (10) days after the filing of the complaint or information, the judge finds no probable cause after personally evaluating the evidence, or after personally examining in writing and under oath the complainant and his witnesses in the form of searching question and answers, he shall dismiss the same. He may, however, require the submission of additional evidence, within ten (10) days from notice, to determine further the existence of probable cause. If the judge still finds no probable cause despite the additional evidence, he shall, within ten (10) days from its submission or expiration of said period, dismiss the case. When he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested, and hold him for trial. However, if the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of a warrant of arrest. (9a)

What is a preliminary investigation?

Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.

What is that again in English?

A preliminary investigation is a proceeding to determine whether or not someone should be accused (indicted) and tried for a crime.

Who conducts a preliminary investigation?

The following may conduct preliminary investigations:

(a) Provincial or City Prosecutors and their assistants;

(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;

(c) National and Regional State Prosecutors; and

(d) Other officers as may be authorized by law.

In the simplest terms, what is the procedure in a preliminary investigation?

1. Filing of the Complaint
2. Subpoena to respondent (or dismissal if totally baseless)
3. Filing of the Counter-Affidavit (by respondent)
4. Filing of the Reply-Affidavit (by complainant; although not in the rules)
5. Filing of the Rejoinder-Affidavit (by respondent; likewise not in the rules)
6. Clarificatory hearings
7. Resolution (whether to indict/file a case against respondent)

What is the aim of preliminary investigation?

It is instituted to determine if probable cause exists to indict/file a case against someone for a crime?

What is probable cause?

It is such sufficient ground to engender a well-founded belief that:

(a) a crime has been committed;

(b) the respondent is probably guilty thereof, and

(c) should be held for trial

Hence, if the preliminary investigation fails to establish any of the three (a crime, probably guilt, necessity for trial), the complaint must be dismissed.

Give examples where any of the three above are lacking.

Sure.

1) The allegations in the complaint failed to allege or established (assuming the allegations are true) a crime.

ex. The allegations did not establish estafa but merely established the respondent owes complainant money. That is only ground to file a civil case and hence, no crime.

2) The complaint failed to establish the probable guilt of the accused.

ex. The complainant failed to identify the respondent.

3) The respondent should not stand trial

ex. While the crime and probable guilt of the respondent has been established, he has a valid defense (such as self-defense, which exonerates his from the crime).

See you next time. Meeting someone important.

About these ads

8 Comments

Filed under Uncategorized

8 responses to “Blog Lecture No. 60: Preliminary Investigation

  1. very nice,thanks for the information

  2. dominique

    i would like to ask for the difference of initial and preliminary investigations… thanks

    • From a legal standpoint, an initial investigation is done by law enforcement agencies to work up a case with evidence and other documents for filing with a prosecutor for preliminary investigation. From a legal (judicial) standpoint, only a preliminary investigation commences the case. There is no initial investigation in the rules of criminal procedure.

      Preliminary investigation is the formal proceeding with a public prosecutor to determine probable cause and whether a case is worth pursuing in court.

  3. armi

    Can an adverse party re-file a complaint after having been dismissed by the prosecutor?

    What is DOJ CIRCULAR No. 46?

    Is this the latest legal update on sec 4 rule 112 on the Revised Rules on Criminal Procedure?

  4. gio

    what are the requirements or conditions for a case that can be directly filed to prosecutors office.

  5. ian

    can a person say that he’s already been charged even if he was just subpoenaed to present himself to the prosecutor’s office for preliminary investigation? i am so confused about when to say or not to say that a person is being charged of something. what if the outcome of the preliminary investigation is the dismissal of the case due to lack of evidences? please give me more information about this to clear my mind on that point.

  6. JAMES HUNNINGS

    Can they drug test you?????

  7. Tara

    Dear Atty.
    If a foreigner bigamist left this country with second spouse and the first spouse sued him for bigamy, will the court postpone the prosecution process until the defendant re-enter Philippine or will the court continue the prosecution process without the presence of the defendant? The jurisdiction of the crime is in this country both marriage certificates are in hands.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s