» ) CHAPTER TI CRIMINAL PROSECUTION 1. Forpurposes of prosecuting violations of Section 68 of PD. “705asamendedby EO. No.277, Series of 1987, the title shall bbe the sume as those in ordinary eriminal complaint/ information butsballbedocketeds,towit: FOR VIOLATION OF SHCTION 68 OF P.D. 106.8 AMENDED BY E.0. 277, SERIES OF 1987. 2. Thocriminalcomplaint/informationshallbefled, preliminary investigated and prosecuted in accordance with the ‘Memorandum of Agreement, dated August 28, 1980, between. the Department ofBnvironmentand Natural Resources and ‘the Department of Justice. WHAT DOCUMENTS WARRANT CRIMINAL PROSECUTION OF OFFENSES DEFINED INSECTION 68 OF P.D. NO. 705, AS AMENDED BY E.0, NO. 277, SERIES OF 1987. 1, Documents common to Offense Nos. 1 & 2 (please refer to paragraph I-B, Chapter I of this Primer, pp. $4) Inthesbsence of any license, permit or special permit, it is presumed that the cutting, gathering, eallecting or removing of timber or ther forest products from any forest land or timber from private land or alienabie or disposable ‘public land ie illegal, 2, Documents for Offense No, $ (please refer to1-B, Chapter It this Primer, p. 4, In the absence of Cetifieate of Timber Origin (Incase oftimberor other forestproduete) and Cerificate cf Lumber Origin (in case of lumber) accompanying the transport, possession or shipment, itis pressumed that said timber, forest produet or lumber being transported, possessed ot shipped came from ilegal source. (BFD Cireular No. 8 (1980), DENK Adminisrative Order No, 34 (1988); DENR ‘Administrative Order No. 96 (1089) ©) PRINCIPLES INVOLVED IN CRIMINAL PROSECUTION In the prosecution of illegal logging cases, the flowing topics and principles must have tobe considered aa they are likely to be raised in oart hy the defense lawyer "The need to identify the offense covered; ‘The persons authorized to enforce the lw; Arrest and apprehension ofthe offenders; Search and seizures Preliminary investigation; and Prosecution of the offender in court. A. The need to identify the offense covered ‘egal logging case is likely to be dismissed or the accused acquitted beeause the investigator tasked to build-up the ease, or the prosecutor who will pursue the case in court is not familiar with the offense charged and its elements. ‘The offenses covered in an illegal logging case and the lements are ‘enumerated in paragraph I (S), Chapter of this Primer.Persons involved or authorized to enforce the law ‘The persons cuthorized to enforce the law (re: law on illegal ogging) are the DENK Secretary or his duly authorized representative, ind such other euthorized person and/or offers enumerated in Par (C), Chapter IV ofthis Primer. Arrest and apprehension Trcriminal cages, itis necessary tha the offender should be taker ntocustody in order that he maybe bound toanswer forthe commission fan offense. Asa general rule, any person who commits a crime is subject to rest Noviolenceorunnecessary force shall beused in makingthearrest ‘nd the person tobe arrested shall not be subjected to further restraint han is necessary for his detention. Ifthe offender resist, the arresting fficer may berequired under the circumstancesto overcomethe resistence. Generally, arrest and detention shall be made only by virtue of « carrant. However a peace officer ora private person may also arrest 8 jerson without warrant inthe following instancer: 1. Wheninhis presence, theperson tobe arrest haseommitied, Isactually committing orisattemptingto commit an offense; 2, When an offense is in fact being committed and he has knowledge ofthefactindcatingthet theperson tobearrested thas committed it; and 8, Whenthepersontobearrestodisaprisonerwhohas escaped froma penal establishment or place where he serving nal ilement ov temporarily being transferred from one ‘confinement to another. 18 In the frst to instanoes, the person arrested without werrant, shall be surrendered or delivered to the nearest police station or jail and shall bo proceedod against inaccordancewith Rule 121, Section 7 of the new rules on eviminal procedures, Priortotheamendment, the law required only “reasonable ground tobelieve' on the part ofthe person affecting the arrect without warrant. ‘Now, the rule requires'personal knowlege’ by the person affecting the arrest without warrant Other instances where an offense is committed in the “presence” ofthe arrestingofficer or person without warrantare; 1. when the oicer fr person sees the acts constituting the offense although he is at a distance; 2. when the officer or person hears the disturbance and he proceeds at once tothe scone where the lack af ssing is made up for by hearing. It must also be considered that an officer or person has the ‘authority to break open the outer or other doors ef a delling cf person {in order to effect en arrest either by virtue ofa warrant ori lawfully ‘uthorized to make such arrest in instances without werrant, ifhe is refused admittance thereto after he has announced his authority urpose. Offenders and/or pereonsliable and subject to arrest with warrant ‘oF in instances without warrant, with respect to acts punishablo under ‘Scation 68 of P.D. 705, as amended by E.0.277, series of 1987, are: 1. the cutter; 2. the gatherer; 3. the cllecior; 4, the receiver; and '. the possessor or any persons who appear to be responsible to the ‘commission of the offence, In cate of partnerships, association, oF corporation, the oficer whe orders the extting,gnthering, collection, ot ‘Possession shall be subject to arrest 19Search and seizure ‘ThePhilippine Constitution guarantacsonsevightagainstarbitrery atrusion by persons into the privacy of one's home or his person. Section 2, Article ofthe Bill of Rights of the present Constitution rovides: “The right ofthe people tobe secured in theirpersons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest ‘shall iesue except upon probable cauee to be determined bersonally by the judge after examination under oath or faffrmarion of the complaint and the witnesses he may ‘produce. ac particularly describing the place tobe searched fand the persons and things to be seized.” Consequently, the general rules thatthe searsh and seizure shall nly be mate by virtue ofa valid warrant. Search warrant or warrant {arrest shall only be issued upon probable eause to be determined ersonally by the judge afcr examination under oath or affirmation of 10 complainant and the witnesses he may produce and particularly eseribing the place tobe searched and the porsoas or things tobe sized, Exceptions to the general rule wherein instances of warrantless rch case be lawfully made are 1. whenthe warrantless seareh isan incidenttoalawful arrest: earch of the premises where the arrests nade noner {ofind and seize things connected with orby which theerime | commitied, weapons and other things and/or prevent the lotfensers' escape fom custody, 20 2, warrantlesssearch for moving vebiclescontaining contraband; 8, warrantleas search for evidence of «crime in plan view of the sestching eficee; 4. seizure of goods in whieh the duties have not beem paid and 5. search and seizure conducted pursuant toa waiver ofsuch Fight by the person affected, Iemust be noted that with respeet to warrantless search of moving vehicles for contraband, there must be probable cause for the search, ‘otherwise it would be illegal, As regards to search and seizure conducted toa waiver ofthe right by the person affected, it must appear that: 1 the right exist 2, the ‘person involved has knowledge, actual or constructive, of the existence ‘fsuch erime;and 3 thesaid person hasthe actualintervionto rlinguiah the right. The fact thatthe aocused failed to object tothe entry into his hhouse does not amount to-a permission to make a search therein 5, Preliminary investigation Preliminary investigation is an ingui purpose of determining whether or not there: [ed in court, ‘or proceeding for the rim facie case to be In ilogal logging casos, the DOJ prosecutors cnemerated in the DENR-DOM doint Circolar, dated November 13, 10, can conduct preliminary investigation. A preliminary investigation is not a constitutional right but itis merely estatutory right that itmay bedenied by lawand therefore cannot be part of due process aHowever, ifthelaw providesfora preliminary investi aright toi exists ana denial ofthe mimes denial of due process, Preliminary investigation of crimes exgaizable by the regional tal courte isa matter of right. 22 CHAPTER IV L ‘Timber A) Judicial Confiscation: ‘The gourt shall further order the eonfieation in favor of the government ofthe timbor or any forest products eut, gathered, colletei, removed or possessed, as well as the machinery, equipment implementa fa tools illegally used inthe area where the Himber or forest products fare found (2nd par. See. 68 of P.D. 75 as amended), ‘Judicial confseation presupposes that an illegal logging ease has ‘been filed in court and confiseation has heen ordered as part of the Judgement or decision of the court. B) Administrative Authority of the DENK Secretary ‘Exceutive Order No. 277, Sores of 1977 provides: “section 2. Presidential Decree No, 705, os ‘amended is hereby further amended by adding Section 5A and 68-8 which reads as fell "Section 68-4, nt Head or ati to order Confiscation. In all eases of violation of this ‘ode oF other forest laws, rules and tegulations, the DEPARTMENT HEAD or his duly authorized representative may order the confiscatin of any forest _productsillegaly cu, gathered, removed, or possessed or° abandonedandallconveyancesusedeitherbyland, water ‘or air in the commission ofthe offense and to dispose of the same in accordance with pertinent laws, regulation ‘or policies on the matter” Other Persons Authorized to Confiseate/Setze LD) Forest Officer or Employee ofthe Boreas (refers tothe Forest Management Buresn) Section 80 of PD. 705 as amended by B.D, 1775; 2) Personnel ofPhilippine Constabulary/Integrated National Police (See. 80, P.D. 705 as amended by PD. 8) Any agency, berangay or barrio oficial or any ‘qualified persontobedeputized by theDepartment Head (par.d, Soe 80,P-D. 705s amendesl by ?.D. 1718); 4) BpesialForceofthe ArmedForcesofthePhilippines organized in every rogicn to enfore forest laws under the MOA by Secretaries of DND & DENR (Gee. 80A. PLD. 705, PD. 1550); 5) DENROfficersand etherauthorized personnel of DENR suject however, that thelr authority is ‘within their respective jurisdiction. (DENR) Administrative Ornler Nas. 20 (1988), 36 1988) ‘and 88 (1990). 6) Such othor porsons and officors thet may be designated by the Department esd inthe exercise of is administrative authori. 4 D) » ‘SUBJECT OF ADMINISTRATIVE CONFISCATION/ SEIZURE: 1) Megally cut, gathered, collected, removed or poreeseed timber or other forest productos, 2) Alleonvayencen either by land, water or air, used in the commission of the offense (Section 58-4, P.D. 705, asamonded by B.0.277, Series of 1987, ‘The term conveyance includes any type orclass af vehicle, craft, whether motorized oF not, used either in land, water, or air, or a combination ‘hereof orsny modeof transportation eed in the ‘movement of any forest products including all its Implenients anil accessories (Seetion 1, DENK Administretive Order No. 59, Series of 1990 8) Alltools and equipments used in committing the ‘fens shallbeconfiscatad and seizedandforfeited in vor of the government. GENERAL GUIDELINES IN ADMINISTRATIVE CONFISCATION/SEIZURE OF ILLEGALLY CUT TIMBER OR FOREST " PRODUCTS. ‘CONVEYANCES, TOOLS AND IMPLEMENTS AND. ‘CRIMINAL PROSECUTION OF THE VIOLATION OF SECTION 68 OF P.D. NO. 105 AS AMENDED BY EO, NO. 277 SERIES OF 1987: 1) Immediatly after seizure ofthe forest products togetherwiththetools,eonveyancesan inserament used in the commission of the offense, the Aanprehendingforestoffice shall execute his sworn Statement/affdavc surrounding the fais of the 25» a ‘ase, Heshallaleotakethe affidavitsor statements of witnesses. [Forms of Affidavits are attached as ‘Appendices“A’ and"B*in DENR Adm. Order No 36 (1988), ‘The sealing or measurement of the seized forest products shall be conducted immediately and the Assessment thereof shall he based on the gross volume without benefit of deduction for natural Aefests, after which the corresponding seinure raceipt shall be issued by the signing DENR offers. Alllogs confiscated snd are to be sold shall be marked With the marking hatchet at both ends, In cases Where the apprehension are made by the PC/INP, BIB, Coast Guard andother government la enforoementagencies, Useapprehendingagency shall notify thenearest DENR offcoend turn over the seized fores products tothe CENRO/PENRO/ RED as the case may befor proper investigation niidsposidon. Inthesamemanner, forest products seized confiscated by the DENK Central Office ‘personnel shall likewise be turned over to the CENRO/PENRO/RED concerned for further investigation and proper dispostionin accordance “with the procedure herein provide, {In cases whore the apprehension is made by the field DENR officer, the forest products and the conveyance usd shall be deposited tothe nearest CENRO/PENRO/RED office, asthe care may be, forsafekeeping wherever itis mosteonvenient. If the transfer of the seized forest produets to the bore placesisnotimmediately feasible, the same 26 5 ® shall be placed under the custody of any licensed Sawmill operator orthenearest local public afcal such as the Barangay Captain, Municipal/C ‘Mayor, Provinial Governor or the PC/INP; at the Aiseretion of the confiscating officer taking into account thesafety ofthe confiscated forest products All TLA holders sball, upon request, provide ‘uansportaton facilities for the transfer of the confiseatoi/seized forest products from the place of apprehension tothe place of eustody. In any ‘ase, tho custody ef the forest procs shall be duly acknowledged and receipted by the oficil taking custody there. All expenses incurred by the CENRO/PENRO/ [RED in the hauling and transportation of the forest produets from the plae of apprehension to the depository ares as mentioned above shall be ‘oimbursod by the office in theamount equivalent {onot more than ten (10) percent ofthe proceeds of tales through public bidding ofthe confiseated {rest products as administrative costs Filing of Complaint. ‘The forest officer shall forthwath flethe complaint withthe iscl’s Office inthoform prescribed bys offic orifthe Office of the Fiscal is too far from the place where the offenseiseommitted, the eriminaleomplaint shall be filed with the Municipal Trial Court of the locality in the form attached as Appendix "C” under DENR Adm. Order No. 4 (1988), against any and al person who appear to be reeponible forthe commission of the oftense penalized under Section 88 of PD, 705, as amended by Executive 2OrderNo.277. incase ofpartnerships sssocations, orcorporations,thecomplaint shall filed against the officers who ordered the cutting, gathering, collection or possession ofthe forest products 1) Referral of Complaint. - Immediately after the complaint i filed, the forest officer shall transit copy of complaint end all supporting documents to the Regional Office for proper handling and Aispesition, copy furnished the Assistant Secretary for Legal Affi. 8) Prosecution of Offenses. - The prosecution of cases fled under these regulations shall be the primary responsibility of the Regional Office ‘concerned suject tothe supervision and control of the Assistant Secretary for Legal Airs DISPOSITION OF ADMINISTRATIVELY CONFISCATED/SEIZED FOREST PRODUCTS/ CONVEYANCE, TOOLS AND EQUIPMENTS: 1) CONFISCATED/SEIZED FOREST PRODUCTS: 4) Gonorali, the Rgional Executive Director (RED), Community Environment and Natural Ressurees Office (CENRO} othe Provincial Environment and Natural Resourses Office (PENRO), ax te case maybe, shall without delay, sel t public auction ané/or dispose all confiscated products in secoranee with esting aws, ‘ulesand regulation partiularly paragraph No.5to120fDENK Administrative Order No.6, Sariesof 1988; DENR Memerandut 6 Order No, 12, Series of 1990 and DENR Memorandum Circular No, 19, Series of 1990) 1») Exception: Confiseated/Soized Forest Products that can notbe disposed and/or soldat public suction: = ‘Those that are subject of judieial proceedings until proper authonty is tbtained for their disposition from court ‘where thecaseispeading representations hall be made with the proper courLor the Immediate disposition thereof through public auetion to avoid loss of economic Wale during pondoney of the ease. ‘Th proceeds ofthe sale shall be deposived a the court direets and the same shall be awarded bythe latter to whocver shall be tntitled thereto based on the final eourt Aecision. (paragraph B-b (i, DENR ‘Administrative Ornler No, 36, seties of 1888] = thoseetrmarked for donationtoother ‘agencies or charitable and. similar instittion those determined by the DENR for its ow infeastractare needs [paragraph ea (ei). 2) CONFISCATED/SEIZED TOOLS AND EQUIPMENTS: 9» Supplies and equlpments acquired by the Departmentthrovgh confiscation forfeiture areconsidered government propertiesand henceforth must be entered in the books of accounts (paragraph I, DENR Memorandum OnlerNo.12,Seriesof 1990) 3) CONFISCATED/SEIZED CONVEYANCES: » » Al seized/confiscated conveyances shall be declared forfeited in favor of the Governmentin accordance with Sec. 63-A of PID. No, 705 a2 amended by B.0. No, 271, series of 1987 which can be used st the discretion of the DENR in forest protection and developmentactivities or be Alisposed through public bidding by the Secretary ot the Regional Offices as the case maybe (See. 8, DENR Administrative (Order No. 58, series of 1990.) However, for purposes of complying with due process, the Secretary, RED/ PENRO/CENRO or their duly authorized ropresontatives shall give the ownar or his representatives a WRITTEN NOTICE of the seizure by requiring said owner or zapresontativetorubmit worn statements for affidavits within three (3) days from receipt of such written notice (DENK ‘Administrative Order No.75, series 1900.) ‘Temporary releas of conveyances can be mmadeafter one (1) month fromeonfiscat and the ease has notbeen resolved, upon application tobe filed with the Secretary ‘withthe following requirements Posting of cash bond_eaual to the value of the conveyance or a GSIS ‘Surety Bond double the value ofthe ‘onvayanceasdeterminedytheCOA; Guarantee froma responsible public ‘fii that the conveyance will be produced whenever required by the DENR during the pendency of the case (Sec, 10, DENR Administrative (Order No, 58, series of 1990.) © STRICTLY NO temporary release of ‘conveyance on theflloing circumstances: ‘The transport of forest products is not covered by transport agreement (orif such document purported to be ‘transport agreementis ftitious or Invalid), Exception: Inthe ease ‘of owner of conveyance is the same owner of forest products to be transported or where a Certifiation bythe CENROi only required under DENR Administrative Order No. 69- A, series of 1990, "The owner or his duly authorized reprecentatebasprevious derogatory ‘record invlving the same oF similar Snvogularity in the DENR; ‘The regularity iso patent than an ordinary prudent man exeresingdue {ligence could not have detected the ‘same(See, 0, DENR Administrative (Orer No. 58, series of 1990.) 3Note: 8) The confiscation of conveyance is without rejitice to any exlminal ection tobe filed Jagainst the owner thereof or any person ‘whottsed theeonveyaneeinthe commission af the offense DENK Administrativeorder No.4, series of 1991, amended DAO No. 98, series of 1990, and it provides: “1, As provided for in the Section 4 of DENR ‘Administrative Order No. 89, ertesof 1890, forest officers and/or natural resources officers, or deputized officers ofthe DENR. reauthorizeonlytosezeconvesancesubject to pertinent policies and guideines "2, Only he Seoretary ean confiscae/forfeit or release said conveyances, subject fothesame guidelines "3. Whenever a seizure is made under these rules theforestoffcersor natural resources ffficers concerned shall submit a report thereof within three (9) days tothe Office of the Assistant Director, Forest Management ‘Bursa for evaluation, instead of directly tubitting the same to the Secretary a8 provided for in Section Gof DAO 59, series of 1900 a2 Acknowledgemente are herewith given Hon, Hon, Hon, Hon Secretary Fulgencto 8, Factoran, Jr Secretary Pranklin M. Dron - Undersecretary Silvestre H. Bello Il Assistant Secretary Romulo D.San Juan Provineial Prosezutor Dennis Villa Ignacio Dire fe stor dose Antonio C. Elm their inspiration and encouragement; ‘The other menbers of the DENR-DOM Special Task Force Director Lope D. Reyes uty. Vieont Rabies ‘Mr. Marcial Amaro State Prosecutor Claro A. Arevalo State Prosecutor alvin C. Go State Prosecutor Ramon Garcia And the members ofthe Central Committe Secreteriat: for the ass Atty. Romulo A. Redula ‘Atty. Artur P. Castillo Mr. Alberto P. Mondragen Mr. Osorio G. Flores Mr. Redanter T. Gun Ms. Myma C. Balatayo Ms. Noetni Mf. Bugau Ms, Rowena M, Rosales Ms, Rosario A. Cruz sistance and cooperation they have given in the ‘preparation and compilation ofthis Prr.er on Tegal Logging hand Legtl Opinion Division Logs Serieo Member, Peayh-DOS Central Committe Seertarit