Preliminary Investigation

Rule 112 of the Rules of Court

1. PRELIMINARY INVESTIGATION RULE 112 OF THE RULES OF COURT BY: CHELDY SYGACO ELUMBA-PABLEO,MPA,LLB CRIMINAL PROCEDURE

2. PRELIMINARY INVESTIGATION (PI) DEFINED 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 respondent is probably guilty thereof, and should be held for trial. EXCEPT: (as provided in Sec. 7) PI is require to be conducted before filing a complaint or information for an offense where the penalty prescribed by law is at least 4 years, 2 months and 1 day without regard to the fine.

3. NATURE OF PRELIMINARY INVESTIGATION (PI) Is generally, INQUISITORIAL and it is often the only means of discovering the persons who may be reasonably charged with a crime, to enable the prosecutor to prepare his complaint or information. It is a function that belongs to the prosecutor.

4. NATURE OF PRELIMINARY INVESTIGATION (PI) It is an executive function, although the prosecutor, in the discharge of such function, is quasi-judicial authority tasked to determine whether or not a criminal case must be filed in court. Not part of the trial of the criminal action of the court nor its record be part of the record of the case in the Regional Trial Court.

5. NATURE OF PRELIMINARY INVESTIGATION (PI) It is a judicial inquiry, a judicial proceeding as it involves opportunity to be heard on the part of the complainant and the respondent, the production and weighing of evidence and decision thereon and as the prosecutor, in the discharge of this function, acts as a quasi-judicial officer. It is subject to the requirements of both substantive and procedural due process.

6. Purpose of preliminary investigation GENERALLY has a 3 fold-purpose: To inquire concerning the commission of crimes and the connection of accused with it, in order that he may be informed of the nature and character of the crime charged against him and if there is probable cause for believing him guilty, that the state may take the necessary steps to bring him to trial; To preserve the evidence and keep the witnesses within the control of the state; To determine the amount of bail, if the offense is bailable.

7. PRINCIPAL PURPOSE OF PI Is to determine whether a crime has been committed and whether there is PROBABLE CAUSE to believe that the accused is guilty thereof. It is to secure the innocent against hasty, malicious, and oppressive prosecution, and to protect him from an open and public accusation of the crime, from the trouble, expense, anxiety of a public trial and also to protect the state from useless and expensive trials. (Salonga vs Cruz Pano)

8. RIGHT TO PI The right of the accused to PI is not a constitutional right but merely a statutory right. Nonetheless, it is a component part of due process in criminal justice. It is not a mere formal or technical right but a substantive right that is indispensable element of the criminal justice system, which may not be treated lightly or ignored.

9. WAIVER OF RIGHT—WHEN IS THERE NO WAIVER The right of an accused to a Preliminary Investigation is a PERSONAL RIGHT and can be waived expressly or by implications. IF NOT WAIVED: absence of PI may amount to denial of due process. LACK OF PI: is not a ground to quash or dismiss a complaint or information, not does it affect the courts’ jurisdiction. NO PI: the court should hold in abeyance or suspend proceedings and remand the case to the office of the prosecutor for him to conduct a preliminary investigation. RULE: Preliminary Investigation is WAIVED when the accused fails to invoke it before or at the time of entering a plea of arraignment.

10. WAIVER OF RIGHT—WHEN IS THERE NO WAIVER Accused who posted BAIL before his trial has waived the same but he can always asked to have PI before the bail is approved. WARRANTLESS ARREST: if the accused allows to be arraigned without asking for PI, he is deemed to have waived the same. ANY OBJECTION FOR LACK OF PI: must be made BEFORE entry of the plea and the court must remand for PI. REFUSAL OF THE COURT FOR REMAND: can be controlled bob certiorari and prohibition to prevent trial.

11. WHO ARE NOT ENTITLED FOR PRELIMINARY INVESTIGATION GENERAL RULE: Penalty prescribed by law is at least 4 years, 2 months and 1 day is ENTITLED for PI before the complaint or information is filed against him in court. EXAMPLE: Libel case which penalty is 6 months, 1 day to 6 years (no need for PI) EXCEPTION: Persons being LAWFULLY ARRESTED (Sec. 7 of Rule 112)

12. OFFICERS AUTHORIZED TO CONDUCT PI Sec. 2 states: Provincial or city prosecutors and their assistants; Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts; National and Regional state prosecutors and; Other officers as may be authorized by law. (INCLUDE:

13. OFFICERS AUTHORIZED TO CONDUCT PI Legal Officer of the Commission on Election and those deputized—in connection with the election offense EXCEPTION: those with exclusive authority under COMELEC —prosecutors and municipal judges have the power to conduct PI. However, those that falls under the original jurisdiction of Sandiganbayan shall TRANSMIT the records for appropriate action. Moreover, prosecutors and judges cannot dismiss the complaint without prior written authority) Ombudsman, Special Prosecutor and Prosecutor DULY authorized by the Ombudsman——in connection with the offense cognizable by the Sandiganbayan) Their authority to conduct PI INCLUDES all crimes cognizable by the proper courts in their respective territorial jurisdiction.

14. OFFICERS AUTHORIZED TO CONDUCT PI RTC Judges have no power to conduct PI. They don’t have the authority to order specific assistant prosecutor to conduct the PI. COMELEC is vested with EXCLUSIVE authority to conduct PI on cases involving violations of election laws, including acts or omission constituting election frauds, offenses and malpractice. May designate a prosecutors its DEPUTY who is thus placed under his supervision and control.

15. AUTHORITY OF THE COMMISSION TO PROSECUTE COMELEC has the exclusive power to conduct preliminary investigation of ALL election offenses punishable under the election laws and to prosecute the same. The commission can appoint/designate deputies to conduct PI under their depict supervision and control.

16. INITIATION OF COMPLAINT Election offenses may be done MOTO PROPRIO by the: Commission, or upon written complaint by any citizen of the Philippines candidates registered political party coalition of political parties, or organizations under the party-list system or any accredited citizens arms of the Commission.

17. OFFICERS AUTHORIZED TO CONDUCT PI Other officers who can conduct PI in election offenses are the following: COMELEC Legal Officer Solicitor General (if he agrees with the action of the COMELEC) The Chief State Prosecutor All provincial prosecutors and their assistants All city prosecutors and their assistants May be directly filed with them or endorsed to them by the Commission or its duly authorized representatives and to prosecute the same.

18. FORM OF COMPLAINT —-WHERE TO FILE When not initiated Moto proprio by the Commission , the complaint must be verified and supported with affidavits and/or other evidences. Moto propio complaints may be signed by the Chairman of the Commission, or the Manager of the Law Department upon direction of the Chairman, and need not be verified. Can be filed in the Law Department or with the Office of the Registrars , Provincial Election Supervisors , Regional Election Directors , State Prosecutors, Provincial Fiscal or City Fiscals , investigation thereof can be delegated to their assistants.

19. CONDUCT OF PRELIMINARY INVESTIGATION NO GROUNDS: complaint, affidavits and the supporting evidence, the investigating officer shall RECOMMEND DISMISSAL following the procedure prescribed in Sec. 8 [c], otherwise, he shall issued a subpoena to the respondent attaching the complaint, affidavit and evidences GRANTING him 10 days from receipt to submit his counter-affidavit. IF CANNOT BE SUBPOENAED of FAILED to answer, the investigating officer shall base his resolution on the evidence presented by him by the respondent. PI must be terminated within 20 days after the receipt of counter-affidavit and the resolution shall be made within 5 days thereafter.

20. CONDUCT OF PRELIMINARY INVESTIGATION GENERAL INVESTIGATORY POWER OF THE OMBUDSMAN: The power was granted by the 1987 Constitution to investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office, or agency when such act APPEARS TO BE: Illegal Unjust Improper Inefficient Includes the authority to conduct PI of criminal complaints and to file in the Sandiganbayan the corresponding criminal information when the evidences so warrants.

21. CONDUCT OF PRELIMINARY INVESTIGATION THE POWER OF THE OMBUDSMAN EXTENDS TO any illegal act or omission of any public official, whether or not the same is committed in relation to his office. (not exclusive nut shared to prosecutors) Shared with PCGG—for cases of i ll-gotten wealth and unexplained wealth under EO Nos. 1,2, 14 and 14-, and the state and city prosecutor.

22. CONDUCT OF Pi—ombudsman The Ombudsman can act on ANY COMPLAINT filed “in any form or manner”. This includes: unsigned or unverified complaint Testimony given at a fact-finding investigation and charges made in a pleading in a case in court.

23. CONDUCT OF Pi—ombudsman The complaint must act in good faith. It is clothed with power to prosecute all criminal charges within the jurisdiction of the Sandiganbayan but also those within the jurisdiction of the regular courts as well. (the Ombudsman may endorse the same to deputize the provincial/city prosecutor who has jurisdiction over the case for proper PI. If the offense is cognizable by the Sandiganbayan, PI will be conducted pursuant to Rule 11 of the Rules of Procedure to the Office of the Ombudsman.

24. Procedure in INVESTIGATION—ombudsman EVALUATION: officer shall recommend whether it may be Dismissed outright for want of palpable merit Referred to respondent for comment Endorsed to the proper government office or agency which has jurisdiction over the case Referred for administrative adjudication Subjected to a preliminary investigation

25. PERSONS WHO MAY CONDUCT PI—OMBUDSMAN The Preliminary Investigation may be conducted by the following: Ombudsman Investigators Special Prosecuting Officers Deputized Prosecutors Investigating Officials authorized by law to conduct PI Lawyers in the government service, so designated by the Ombudsman

26. Procedure in INVESTIGATION—ombudsman PROCEDURE: If the complaint is under oath or is based on official reports, the investigating officer shall require the complainant or supporting witnesses to execute affidavits to substantiate the complaint. No motion to dismiss is allowed EXCEPT for lack not jurisdiction. Neither may a motion for a bill of particulars be entertained. (if the respondent desires any matter in the complainants' affidavit to be clarified, the particularization thereof may be done at the time of questioning [Rule II (f) of the Ombudsman procedure]—“parties shall be afforded with the opportunity to present BUT WITHOUT THR RIGHT to examine or cross-examine the witness being questioned.” If in writing, it must be under oath and parties will be furnished thereof.

27. Procedure in INVESTIGATION—ombudsman Upon the termination of the PI, the investigating officer shall FORWARD the records of the case together with his resolution to the designated authorities for their appropriate action thereon. No information may be filed and no complaint may be dismissed without the written authority or approval of the Ombudsmanin the case falling under the jurisdiction of the Sandiganbayan or of the proper Deputy Ombudsman in all other cases. NO MOTION FOR RECONSIDERATION or REINVESTIGATION shall be entertained after the information shall have filed in court, EXCEPT upon order of the court wherein case was filed.

28. Procedure in INVESTIGATION—ombudsman RE-INVESTIGATION: after the Ombudsman or the prosecutor has filed the information in court, the accused may file a “petition for reinvestigation the court which the information is pending. (If granted, may conduct such re-investigation) It is like an appeal, it renders the entire case open for review. It is merely a repeat investigation of the case. New matters or evidence are NOT prerequisite for it, which is simply a chance for the prosecution or the Office of the Ombudsman to review and reevaluate its findings and the evidences already submitted. After concluding its re-investigation, the prosecutor submits his recommendation to the court, either to move to dismiss the case for insufficiency of evidence or to inform the court that he finds no reason to reverse his previous findings and the court now proceed to try the case.

29. RIGHT OF SPEEDY DISPOSITION—-OMBUDSMAN The inordinate delay in the conduct of PI infringed upon their constitutionally guaranteed right to a speedy disposition of their cases. (Duterte vs Sandiganbayan) Undue delay of close to 3 years in the termination of the PI in the light of the circumstances obtaining in that case warranted the dismissal of the car. (Tatad vs Sandiganbayan) Long delay of the termination of the PI is violative of the constitutional right of the accused to due process. (Angchangco Jr. )

30. REMEDY AGAINST OMBUDSMAN RESOLUTION The law is silent as to the remedy which an aggrieved party may avail against resolutions of the the Ombudsman in criminal or non-administrative case. Hence, appeal is not available as a remedy because the right to appeal is a statutory privilege and may be availed of ONLY if there is a statute to that effect. HOWEVER, an aggrieved party is not without remedy, as he can resort to the SPECIAL CIVIL ACTION of certiorari under Rule 65.

31. REMEDY AGAINST PROSECUTOR’S REFUSAL TO INDICT Where the prosecutor UNREASONABLY refuses to file an information or to include a person as an accused therein despite the fact that the evidence clearly warrants such action, the offended party has the following remedies: In case of grave abuse of discretion, —-he may file “mandamus” to compel the prosecutor to file such information. He may lodge a new complaint against the offenders and have a new examination conducted as required by law. He may institute administrative charges against the erring prosecutor, or criminal complaint under Art. 27, of the Civil Code He may secure the appointment of another prosecutor, He may institute another criminal action no double jeopardy involved; Appeal the ruling of the prosecutor to the Secretary of Justice.

32. APPEAL TO THE SECRETARY OF JUSTICE (POWER OF CONTROL) An aggrieved party may appeal by filing a verified petition for review with the Office of the Secretary, Department of Justice, and by furnishing copies thereof to the adverse party and the Prosecution Office issuing the appealed resolution. The petition shall be accompanied by legible duplicate original or certified true copy of the resolution appealed from together with legible true copies of the complaint, affidavits/sworn statements and other evidence submitted by the parties during the preliminary investigation/ reinvestigation.

33. APPEAL TO THE SECRETARY OF JUSTICE (POWER OF CONTROL) The Secretary of Justice may dismiss the petition outright if he finds the same to be patently without merit or manifestly intended for delay, or when the issues raised therein are too unsubstantial to require consideration. If an information has been filed in court pursuant to the appealed resolution, the petition shall not be given due course if the accused had already been arraigned. Any arraignment made after the filing of the petition shall not bar the Secretary of Justice from exercising his power of review.

34. WAIVER OF THE PI GENERAL RULE: The right to PI is waived when the accused fails to invoke it before or at the time of entering a plea or arraignment. This rule DOES NOT APPLY when the accused has actively and consistently demanded a regular PI even before he was charged in court and where during arraignment, hen refuse to enter a plea because he has a previous pending case with the appellate court regarding his right to avail of a regular preliminary investigation. A WAIVER whether express or implied, must be made in a clear and unequivocal manner.

35. REMEDY WHERE NO PROBABLE CAUSE-COURT File a motion to dismiss on such ground or for determination of probable cause (the judge AFTER review may either call for complainant and the witness themselves or simply dismiss the case for lack of probable cause) Or if the warrant of arrest has been issued by the trial judge, the accused may file a ground of lack of probable cause .

36. COURT HAS CONTROL OF CASES ONCE INFORMATION IS FILED RULE: once the criminal complaint or information is filed in court, any disposition thereof such as dismissal or conviction or acquittal of the accused, rest in the sound discretion and control of the court. While the prosecutor retains the discretion and control of the prosecution of the case, he cannot impose his opinion on the court. The court has the best and sole discretion on what to do with the case. If trial courts denies the motion of the prosecutor, even when the latter acted upon the instruction of the Secretary of Justice to dismiss the case for lack of probable cause, the prosecutor has no choice but to proceed to trial. (if he refuses, he can be compelled to do so)

37. WHEN ACCUSED LAWFULLY ARRESTED WITHOUT WARRANT If arrested without a warrant involving an offense which requires a PI, the complaint or information may be filed by prosecutor without need of such investigation PROVIDED an inquest has been conducted in accordance with the existing rules. In ABSENCE OR UNAVAILABILITY OF INQUEST, complainant may be filed by the offended party or a peace officer 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 PI in accordance with this rule (Rule 112) 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. (Delay in the delivery of detained persons to the proper judicial authorities.)

38. Thank you for reading! Cheldhaye