Académique Documents
Professionnel Documents
Culture Documents
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Revised .~
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MANUAL for
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I PROSECUTORS
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: KATHLEEN ROSARIO 0. DE LA CRUZ-ESPINOSA
I Assistant City Prosecutor
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Special Sections on Human Rights and Tax Cases
.1 2008
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I Published by the National Prosecution Service, Department of Justice, Manila, Philippines with funding
support from the United States Agency for Interriational Develbpment through its Rule of Law Effectiveness
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I Project, The Asia Foundation, Millenium Challenge Account;- Philippines Threshold Program, Technical
Assistance Project and the Asian Development Bank. '
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I 2 Revised.Manual for Prosecutors
I CONTENTS
I FOREWORD ................................................................................................ 19
I ACKN'OWLEDGMENT ........••••..................•.............................................. 21
I A. COMPLAINT ...................~··········-···················································· 26
1. Form of the Complaint Filed Before the Prosecutor's Office ........ 26
2. Policy on Forms of Complaint Filed With the Prosecutor's Office...... 26
I 3. Persons Authorized to File Complaints .......................................... 27
4. Law Enforcement Officers/Public Officers Authorized !o File
B. INFORMATION .......•.......•.•.........•.................................................... 31
I 1. The Information Need Not be Under Oath; .Matter \Vhich a
Prosecutor Must Certify Under Oath in the Information ............... 32
2. Contents of the Caption of an !nformation .................................... 32
I C. RULES COMMON TO BOTH A COMPLAINT
I or Information ................................................................................ 36
3. Number of Offenses Charged ........................................................ 37
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Revised Manual for Prosecutors 3
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I 4. Title of the Complaint or Information ............................................ 37
5. Qualifying and Generic Aggravating Circumstances; To be
I Alleged and Proved ........................................................................ 38
6. List of Prosecution Witnesses ........................................................ 38
I Pambarangay ............................................................................ 41
I A. Concept············································:·················································· 44
B. Coverage .............................................................................................. 44
C. Designation of an Inquest Prosecutor ................................................. 44
I D. Venue of Inquest Cases ....................................................................... 44
E. Date and Time of the Conduct of Inquest Proceedings ....................... 45
I Effected .......................................................................................... 50
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I B. INQUEST PROPER .......................................................................... 50
I . Contents of the Information ........................................................... 51
I 2. Action to be Taken When There is an Absence of
Probable Cause ............................................................................... 51
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I PART III: SUMMARY INVESTIGATION ..........................................••... 74
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I 3. Where Respondent Cannot be Subpoenaed or if Subpoenaed
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I 5. Written Approval Required in the Dismissal of a Complaint or
the Filing of an Infonnation in Court ............................................. 99
I K. Transmittal of the Recommendatory Resolution and Information
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TEMPLATES & SAMPLE FORMATS USED IN THE
I CONDUCT OF THE PRELIMINARY INVESTIGATIONS .....•.... 107
NJ>S INV Form No. 01, s. 2008- Investigation Data Form ........... 108
I NPS INV Form No. 02, s. 2008 - Resolution Dismissing
the Complaint ....................................................................... 110
NPS INV Form No. 03, s. 2008 - Subpoena to Complainant.. ....... 112
I NPS INV Form No. 04, s. 2008 - Subpoena to Respondent/s ........ 113
NPS INV Form No. 05, s. 2008 - Subpoena to Respondent to
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Sample Resolution ........................................................................... 119
I Sample Information I ...................................................................... 123
Sample Information 2 ...................................................................... 125
Sample Information 3 ...................................................................... 127
I Sample Information 4 ...................................................................... 129
I M. Cancellation of the Bail Bond ... ... .. .. .. .... .... .. ... ..... .. ......... .... ........... .. 150
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PART IX: @ ....................................................................................... 153
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I. GENERA.L RULES ............................................................ ., ........ #' • • • • • • • • • • 153
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I I. If the Child is the Complainant.. .................................................. 171
173
I B. Preliminary Investigations.................................................................
1. If the Child is the Victim ..............................................................
174
174
2. If the Child is the Respondent ...................................................... 175
I C. Protective Custody of the Child ........................................................
p. Termination of Inquest/Preliminary Investigation ............................
175
175
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I F. ECOLOGICAL SOLID WAS1E MANAGEMENT ACT (RA9003)-... 185
1. Pointer .......................................................................................... 185
I G. WILDLIFE CONSERVATION AND PROTECTION ACT
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I B. Remedies Available Under Ordinary Actions ................................... 210
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IV. PROSECUTING CASES OF EXTRALEGAL KILLING •.•.••..•..•... 227
I 2. Criminal Action for Expulsion (Art. 127, Revised Penal Code) .... 233
3. Criminal Action for Grave Coercion
(Art. 2S6, Revised Penal code) ................................................... 233
I VI. GENERIC REMEDIES FOR HUMAN RIGHTS VIOLATIONS ... 233
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C. Filing a Claim Before the Boards of Claims of the Department of Justice
I under the Victim Compensation Act (R. A. No. 7309) ..................... 236
1. Legal Basis ................................................................................... 236
By Whom Filed ......................................................................... 236
I Procedure for Filing Claims ...................................................... 236
Procedure for Processing of Claims .......................................... 23 7
Time Period ............................................................................... 238
I Relief That May be Granted ...................................................... 238 ·
I B. Sec. 255. Failure to File return, Supply Correct and Accurate Information,
Pay Tax Withheld and Remit Tax and Refund Excess Taxes Withheld on
I Compensation .............~..................................................................... 244
I. Elements of Sec. 255 .................................................................... 244
2. Documentary Evidence Required ................................................ 244
I 3. Expenditure Method/Net-Worth Method ..................................... 245
4. Revised Penal Code Provision on Malversation to Willful
Failure to Remit ............................................................................ 245
I 5. AI:t. 222 -Officers Included......................................................... 246
I F. Sec. 236(J), last par. - Securing More Than One TIN ................... 251
1. Elements of Sec. 236(1) ........................................................ :...... 251
2. Documentary Evidence Required ................................................ 252
I IV. RELEVANT JURISPRUDENCE IN ESTABLISHING INTENT AND
WILLFULNESS IN TAX CASES ...............•.•.............•...................... 252
I A. Intent/Willfu!ncss in Criminal Law ............................................... 252
B. Philippine Jurispri1dence 011 Inten.t/Willfulness in Tax Cases ..... 253
I 1. Supreme Court Decisions ............................................................ 253
2. Court of Tax Appeals Decisions ................................................... 257
3. Regional Trial Court (RTC) Decisions ........................................ 259
I C. Challenges in Proving Intent and Willfulness in Tax Cases ..•.••.. 260
D. Proof of Willfulness in U. S. Jurisprudence •••••••••••..•••••••..•...••••.... 261
1. Proof of Willfulness - Failure to Fil~ Returns ............................. 261
I 2. Proof of Willfulness - Attempt to Evade or Defeat Tax .............. 261
Appendix "C" - D.O. No. 318, s. 1991 - Defining the Authority, Duties
I and Responsibilities ofRegionai State Prosecutors .......................... 304
Appendix "D" - D.O. No. 54, s. 1992 -Amending D.O. No. 318, s. 1991
I by Specifying the Instances Where a Regional State Prosecutor
can Designate· an Acting City or Provincial Prosecutor to Handle
the Inve_stigation/Prosecution of a Particular Case ············:·············· 308
I Appendix "E" - D.C. No. 50, s. 2000 (Specifying Aggr2.vating and
I Appendix "F" -D.C. No. 47, s. 2300 (Preparation ofa Trial Guide) ... 311
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I 18 Revised Manual for Prosecutors
I FOREWORD
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It was in 1996 that the first Manual for Prosecutors of the Department of Justice was
I issued as a unified guide for prosecutors in their day-to-day services to the public. In the
ensuing years, the Rules on Criminal Procedure had undergone revisions, several special
laws were enacted, and various jurisprudence emerged, thus, affecting the work of the
I prosecutors. Yet, th~ Manual remained as it was in 1996. The need to revisit the Manual to
keep it attuned to recent developments in law and procedure is the prime consideration for
those involved in this project.
I This Manual will provide for the procedural guidelines that will standardize in-
I vestigative and prosecutorial work in the National Prosecution Service in a unifit::d and
simplified manner.
I I thank all those who have labored .-.nd partnered with the Depanment for the de-
velopment and production of this Manual. May you continue with such noble work for
the Filipino people, and may more join you in efforts to strengthen the Department as an
I institution and the justice system as a whole.
To all DOJ prosecutors and prosecution attorneys, this is your Manua!. A lot of hard
I work, time and resources went into it to make sure that it is comprehensive enough to cover
the peculi<trities of your work, while being a user~friendly reference to you.
I It is my hope that this would help you in the discharge of your sworn duty to the
people and ultimately improve the administration of justice in our ~ountry.
I
I t;;LSecretary of Justice
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I Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN
I Department ofJustice
Manila
I 05 October 2007
I In the interest of the service and pursuant to the provisions of existing laws, the following
prosecutors are hereby constituted as members of the Technical Working Group {TWG) in connec-
tion with the preparation of the: 1) Systems and Procedures Mwmal for the National Prosecution
I Service and 2) Prosecutor's Manual, to wit:
Chairperson
SSP PURITA MERCADO-DEYNATA -
I CPLORNAT. LEE
SSP ROSALINA P. AQUINO
SSP MA. EMILIA L. VICTORIO
Member
Member
Member
I The Techr1ical Working Group, which saall be under the direct supervision of Chief State
Prosecutor Joven~ito R. Zufio and assisted by ACSP Miguel F, Gudiu, Jr. and A CSP Richard Anthony
D. Fadullon, shall be charged with the review and assessment of existing policies; formulation and
I development of policy recommendations; oversee the progress of th~ ma..'luals' preparation; and
conduct the evaiuation and validation of said manuals nationwide in coordination with the DOJ
Management Services Office (MSO).
I The Technical Working Group shall be assisted by a Secretariat, the members of which are
I the'followllig:
I Support services, particularly the Administrative Service and the Finance and Management
Service shall extend the necessary ass!stance to the Technical Working Group.
I orders.
This Department Order shall take effect immediately and shall remain in force until further
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ACKNOWLEDGMENT
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There are so many to thank for their involvement in this project.
I Foremost, the distinguished institutions and individuals who, by their support and
cooperation, have made the revision of the Manual for Prosecutors c:nd the drafting of
I the Handbook on Administrative Case Management possible: the USAID represented
by Mr. Gerardo Porta, Senior Civic Participation Specialist; USAID-ROLE represented
I by Atty. George V Carmona, Chief of Party, ROLE and Atty. Redentor Buban; The Asia
Foundation represented by Dr. Steven Rood, Country Representative, Atty. Carolyn A.
Mercado, Sr. Program Officer, Atty. Damcelle Torres-Cortes, Program Officer and Ms.
I on Administrative Case Management; Atty. Eric Joseph Mallonga, consultant for the spe-
cial section on Prosecuting Human Rights Violations and Providing AvaihclP. Remedies
Therefor; Atty. Victor Mamalateo and Atty. Giovanni Vallente, consultants for the special
I section on Prosecuting Violations of the National Internal Revenue Code and Related
Laws.
I The critical job of reviewing, rationalizing and updating the old Manual and pre-
senting the matrices during the validation sessions and the round table discussion were
I diligently and skillfully done by a technical working group (TWG): Chairperson SSP
Purita Mercado-Deynata, Co-Chairperson RSP Antonio B. Arellano, and members RSP
Nonnatus Caesar R. Rojas, CP Jacinto G. Ang, CP Loma T. Lee, SSP Rosalina P. Aquino
I and SSP Ma. Emilia Lucena-Victorio (please refer to D.O. No. 844, s. 2007 on the previous
page, andAppendix "/" onp. 322 of this Manual).
I This Manual was initially made possible through the Organizational Development
Program for the National Prosecution Service (NPS) and its component project, the
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valuable policy research, process analysis, documentation, technical writing and project
I management.
Secretariat and other administrative work were effectively and efficiently carried
I out by_ Ms. Eleanor P. Singson, Ms. Corazon S. Navarrete, Ms. Imelda A. Ballesteros and
Ms.· Ev~geline C. Cruz. They are the staff of Assistant Secretary Teresita R. Domingo
I very supportive of the project by providing the necessary funding and logistics.
Lastly, retired Justice Romeo J. Calleja, Sr., a great thinker who, with his expertise
I and smart thinking, proffered relevant and distinct suggestio~s during the round table di:::;-
cussion.
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I 22 Revised Manual for Prosecutors
I PART I. PROSECUTION OF OFFENSES
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I I. GENERAL PRINCIPLES
1. The prosecution of cases shall be under the direct control and supervision of the
I prosecutor. While he may turnover the actual prosecution of the criminal case to
a private prosecutor, it is necessary that he be present at the trial until the final
termination of the case; otherwise, if he is absent, it cannot be gainsaid that the
I trial is under his supervision and control (Pinote v. ~yea, 477 SCRA 409 [2005)).
I 2. The trial prosecutor may, at any time, in the exercise of his discretion, take over
from the private prosecu~or the actual conduct of the trial.
4. The prosecution office has no more control over cases.filed in court; thus, a motion
I for reinvestigation should be addressed-to the trial judge (Baltazar v. Pantig, G. R.
No. 149111, August 9, 2005).
I 5. Once a case has already been filed in court, a trial prosecutor may be compelled
to prosecute the case notwithstanding his personal convictions or opinions. HP-
I should present the case to the best of his ability and let the court decide the merits
of the case on the basis of the evidence adduced by both parties.
I arraignment is necessary in order to fix the idt:ntity of the accused, to inform him
of the charge and to give him an opportunity to plead (14 Am. Jur., p.939, G. V.
Jacinto, Criminal Procedure).
I 2. Arrest - the taking of a person into custody in order that he may be bound to
answer for the commission of an offense (Sec. 1, Rule 113, Revised Rules on
I Criminal Procedure).
3. Bail - is the security given for the release of a person in custody of the law,
I furnished by him or a bondsman, to guarantee his appearance before any court as
required under the conditions hereinafter specified. Bail may be given in the form
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I of corporate surety, property bond, cash deposit or recognizance (Sec. I, Rule
114, Revised Rules on Criminal Procedure).
I 4. Bail Bond - is an obligation given by the accused with one or more sureties, with
the condition to be void upon the performance by the accused of such acts as he
may legally be required to perform (Villasenor v. Abano, 21SCRA312).
I 5. Complaint - a sworn written statement charging a person with an offense, sub-
scribed by the offended party, any peace officer, or other public officer charged
I with the enforcement of the law violated (Sec. 3, Rule 110, Revised Rules on
Criminal Procedure).
I • Code - Criminal Lav.~ Book One, 15th Ed, Luis B. Reyes, p. 676).
7. Criminal action - A criminaJ action is one by which the State prosecutes a person
I for an act or omission punishable by law (Sec. 3(b), Rule I, 1997 Rules of Civil
Procedure).
I of a warrant of arrest issued by the court for the purpose of determining whether
or not said persons should remain under custody and correspondingly be charged
in court.
I 10. Offended Party- is the person against whom or against whose property the crime
was committed (Sec. 3, Rule 110, supra) and to whom the offender is civilly liable
I in light of Article 100 of-the Revised Penal Code that "every.person criminally
liable is also civilly liab!e (Garcia v. CA, 266 SCRA 678 [1997]); the person
actuall~, injured and whose feeling is offended.
I 11. Personal Knowledge of Facts (in arrests without warrant) - must be based
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founded on probable cause, "coupled with good faith on the part of the peace
I o.fjicers making the arrest." (Umil, et. al. vs. Ramos; 202 SCRA 251 [1991)).
12. Plea - is the reply of the accused to the charge. In criminal prosecution, the
I accused has to plead to the indictment, which he may do (1) by pleading to the
jurisdiction, that is, alleging that the court has no jurisdiction to try him; (2) by a
demurrer; or (3) by some plea in bar, either a general plea, "guilty" or "not guilty"
I (Osborn s Concise Law Dictionary, 15'h Ed. John Burke, p. 254).
I 13. Plea Bargaining - the process where the accused usually pleads guilty to a lesser
offense, or to only one or some of the counts of a multi-count indictment in 1 ~tum
for a lighter sentence than that for the graver charge (Black's Law Dictionary, 5'h
I Ed., p. 1037).
16. Probable Cause (as a ground for warrantless arrest) - an actual belief or
I reasonable grounds of suspicion (People vs. Tudtud, GR No. 144037, Sept. 26,
2003) that the person to be arrested is about to commit or is attempting to commit
a crime, or is in the act of committing a crime, or has committed a crime, either in
I the presence or without the presence of the arresting officer.
18. Release on Recognizance - the pre-trial release of an arrested person who prom-
I ises, usually in writing but without a surety or posting bond, to appear for trial at
a later date (Biack's Law Dictionary, p. 1316).
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penalty of imprisonment does not exceed four (4) years and two (2) months,
I regardless of the fine.
I prescribed by law does not exceed six (6) months, or fine not exceeding one
thousand pesos (Phpl,000.00).
I 21. Trial-:- is :i judicial examination of the claims at issue in a case which is presented
by the prosecution and defense to enable the court to arrive at a judgment pro-
nouncing either the guilt or innocence of the accused (US v. Raymundo, 14 Phil.
I 416 [1909]).
I A written complaint filed with the Office of J:he Prosecutor may come in
different forms, to wit:
I c" a letter (sworn or not) from the offended party, or other persons autho-
rized by law to file the complaint;
I d. a referral letter----'from
,,-'
a committee of the Senate or House of
Representatives or any other government agency or institutipn; and
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I b. However, referral letter-complaints from law enforcement agencies or
government institutions need not be sworn to by the complainants.
I filed by the police agency o~ the aggrieved party. (Sec. 3, Rule 110,
supra.).
I c. any law enforcement officer charged with the enforcement of the law
violated.
I 2002)
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In offenses which cannot be prosecuted de oficio, only the follow-
I ing persons may file the complaint:
I 5. In cases of violations oftb.e Child Abuse Law, any one of the fol-
lowing may file the complaint (Sec. 27, R. A. No. 7610, as amended
by R. A. No. 9231 [Child Labor Law]):
I • the offended party;
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the parents or guardian; '
ascendant or collateral relative within the third civil degree of
consanguinirf;
I • officer, social worker or representative of a licensed child-care
institution;
• officer or social worker of the Department of Social Welfare
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and Development;
Barangay Chairman of the place where the offense was com-
mitted; or of the place where the offended party actually re-
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sides, or where he/she works;
At least three (3) responsible citizens where the violation oc-
curred.
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d. For violations of RA 9262 (Anti-Violence Against Women and their
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e. In cases of violation of RA 9208 (Anti-Trafficking in Persons Act), any
l. trafficked person;
I 2.
3.
parents;
spouse;
4. siblings,
I 5.
6.
children,
legal guardian;
I 7. any person who has personal knowledge .cf the commission of the
offense.
I a. police officers;
b. NBI agents;
I 1. officials of the PAG-IBIG for violations of the PAG-IBIG Fund Law (PD
1752); and
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I J. Other agencies specially tasked with the enforcement of certain special
laws.
I 5. Institution of Criminal Action; How and Where Commenced
• Criniinal actions for violations of the civil and political rights of per-
I sons suspected of or detained for the crime of terrorism or conspiracy
to commit terrorism may also be commenced by the filing of the com-
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trip, including the place of departure and arrival (Sec. 15 (b), Rule 11 O,
I supra.).
The criminal action shall be instituted in the proper court of its first
I port of entry or of any municipality or territory through which the vessel
passed during such voyage subject to the generally accepted principles of
international law (Sec. J5(c) Rule 110, supra).
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• The place where the a~tion is to be instituted is subject to existing
I laws such as offenses which fall under the exclusive jurisdiction of the
Sandiganbayan which is located at Quezon City.
I c. Where the crimes are committed 01utside the Philippines but puni3hable
under Article 2 of the Revised Penal Code -
I b. there is reasonable ground to believe that a ~rime has been committed and
that the accused is probably guilty thereof;
I c. the accused was informed of the complaint and of the evidence submitted
against him; an<:l
I d. the accused was given an opportunity to submit controverting evidence
(Sec. 4, Rule 112, supra.).
I 2. Contents of the Caption of an Information
I a. the complete names, i.e., given name, alias/es, maternal name, surname,
and addresses, of all \:he accused. In the case of accused minors, their age
I shall be indicated in the caption;
I supra.).
I To properly inform the accused of the nature and cause of the ac-
cusation against him, the Complaint or Information shall state, whenever
I possible -
I 2. the molestation, or
I 3. prostitution, or
I The body ~f the information states that the accused "embraced" the
complainant, "held her breasts and kissed her lips". Such allegations con-
stitute specific averment of ultimate facts constituting the offenlse of child
I abuse under Sec. 5 ofRA 7610. This, despite the fact that the caption and the
preamble of the Information d~signated the offense charged as "Violation
of RA 7610". The omission to cite the specific section or subsection. of RA
I 7610 violated is not sufficient to invalidate the Information since there is
no doubt that the allegation of the ultimate facts of"embracing" the victim,
"holding her breast" and "kissing her. lips" clearly ref~r to the "ultimate
I facts" of the generic term "acts oflasciviousness" which is penalized under
Sec. 5 of RA 7610. Hence, the Information was valid (Olivarez v. CA G. R.
I No. 163866, July 29, 2005).
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• In order for the court to impose the penalties under R. A. No. 9346 in
I rape cases, the following attendant circumstances must be stated in the
Information:
I 1. When the victim is under eighteen ( 18) years of age and the offender
is a parent, ascendant, step-parent, guardian, relative by consan-
guinity or affinity within the third civil degree, or the common-law
I spouse of the parent of the victim;
I 2. When the victim is under the custody of the police or military au-
thorities;
I 3. When the rape is committed in full view of the husband, parent, any
of the children or other relatives within the third degree of conscn-
guinity;
I 4. When the victim is a religious or a child below seven (7) years old;
7. When, by reason or on the occasion of the rape, the victim has suf-
I fered permanent physical mutilation. (Sec. 11, RA 7659 [The Death
Penalty Law]).
I its allegations that the offense was committed or some of its essential
ingredients occurred at some place within the jurisdiction of the court,
unless the particular place where it was committed constitutes an essential
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element of the offense charged or is necessary for its identification (Sec.
I JO, Rule 110, supra.).
The complaini: mmt allege the specific time and pbce wbeP and where
I the offense was committed, but when the time so alleged is not of the
essence of the offense, it need not be proved as alleged, and the complaint
will be sufficient if the evidence shows that the offense was committed
I at anytime within the period of the statute of limitation and before the
commencement of the action (US v. Smith, 3 Phil 20 [1903]).
I The Complaint or Information must state the name and surname of the
person against whom or against whose property the offense was commit-
ted, or any appellation or nickname by which such person has been or is
b. the criminal intent of the accused and Its relation to the act or omission
I complained of;
I d. all matters that are essential to the constitution of the offense, such as the
ownership and/or value of the property robbed or destroyed; the particu-
lar knowledge to establish culpable intent; or the particular intention that
I characterizes the offense;
I e. age of the minor .;:ir.cused, and whenever applicable, the fact that he/she
acted with discernment; ar.d,
•
I The charge is not defective for duplicity when one single crime is set forth
in the different modes prescribed by law for its commission, or the felony
is set forth under different counts specifying the way of its perpetuation,
I or the acts resulted from a single criminal impulse. Neither is then.: duplic-
ity when the other offense described is but an ingredient or an essential
element of the real offense charged nor when several acts are related in
I describing the offense (People v. Montilla, 285 SCRA 703).
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5. Qualifying and Generic Aggravating Circumstances; To be Alleged and
I Proved
a. The prosecutor must always consider aftd allege the applicable quali-
I fying and/or generic aggravating circumstances in any Complaint or
Information that he prepares.
I 22 and estafa cases, the list of witnesses shall include the complainant, the
bank representative with specific reference tc the check and account numbers
involved and, in proper cases, the company auditor.
I In physical injuries cases, ihe lefom:ation shall indicate the name of the
attending physician with specific referenc~ to the medical report and date of
I the incident.
I The amendment may be made only with leave of court and only as to
matters of form wherein the same can be done without prejudice to the
rights of the accused (Sec. 14, par. 1, Rule 110, supra.).
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I 38 Revised Manual for Prosecutors
I c. during the trial
I An amendment may also be made but only with leave of court and
also only as to matters of form wherein the same can be done without
I prejudice to the rights of the accused (Sec.14, par. 1, Rule 110, supra.).
8. Amendment by Substitution
I At any time before judgment, if there has been a mistake in charging the
proper offense, the court shall dismiss the original Complaint or Information
I upon the filing of a new one charging the proper offense in accordance with
Rule 119, Sec. 11, provided the accused would not be placed thereby in double
I jeopardy. The court may also require the witnesses to give bail for their ap-
pearance at the trial (Sec.14, par. 3, Rule 110, supra.).
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I another preliminary investigation must be conducted and the accused
has to plead anew to the new Information; and,
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9. Prescriptive Period; How Computed and Interrupted
I a. For an offense penalized under the Revised Penal Code -
I Prosecutor (Sec. 1 (b), par. 2, Rule 110, supra.); or with the Office of
the Ombudsman (Llenes v. Dicdican, 260 SCRA .'207 [1996}' or
I The period of prescription shall commence to run from the day of the
} commission of the violation, and if the same is not known at the time,
I from the discovery and the institution of judicial proceedings for its in-
vestigation and punishment. The prescription shall be interrupted only by
the filing of the Complaint or Information in court and shall begin to run
I again if the proceedings are dismissed for reasons not constituting double
jeopardy (Sec. 2, Act. No. 3326, as amended).
I Prescription shall not run when the offender is absent from the coun-
try (Art. 91, par. 2, Revised Penal Code).
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• In cases where the imposable penalty is imprisonment and/or a
I fine, the greater penalty shall be the basis for the computation of
prescription.
Prescription shall not run when the offender is absent from the coun-
I try.
I addressed to the Secretary of Justice who has control and supervision over the
conduct of a preliminary investigation .which is a function of the Executive
Department and not the Judiciar:,· (Larranaga v. CA., 287 SCRA 581).
I 2. Where the crime for violation of PD 532 (Anti-Piracy and Anti-Highway Robbery
Law cf 1974) was committed aboard a jeepney, the criminal action may be insti-
I tuted in the court of any municipality or territory where the vehicle passed during
the trip including the place of departure and arrival (People v. Panliiio. 2 5 5 SCRA
I 503).
3. Where the transport of cigarettes commenced out of Clark Airbase and continued
I when the goods pushed through Valenzuela, Bulacan until they were seized in
Quezon City, the courts in any of these places had jurisdiction over the offenses
(Co Kiat v. CA., 187 SCRA 5 [1990}).
I 4. The f:iupreme Court ruled in the case ofPeople v. Esperanza, G.R. Nos. 139217-24,
June 27, 2003, the allegation that "Irma is Nelson's niece" is not specific enough
I to satisfy the special qualifying circumstances of relationship. If the offender is
merely a relation - not a parent, ascendant, step-parent, guardian or common-law
I spouse of the mother of the victim - the specific relationship must be alleged in
the Information, i.e., that he is a "relative by consanguinity or affinity [as the case
may be] within the third civil degree."
I 9. The court gave fair warning to pr0secutors that they must prepare well-crafted
Infom1ations that allege the circumstances qualifying and aggravating the crimes
I charged; otherwise, the same will not be considereu by the court in determining
the proper penalty (People v. Rodolfo Oling Madraga, January 20, 2003).
I 11. When conspiracy is charged as a mode in the commission ot a crime, the allega-
tion in the Information should allege, thus: a) by the use of the word "conspire"
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Revised Manual for Prosecutors
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alleged in the body of the Information and its commission is established by the
13. An Information for bigamy must state the time and place of the second wedding
I (People"v. Bustamante, 105 Phil. 64).
14. Time is irrelevant in rape (People v. Bugayong, 299 SCRA 128) and violations of
I the Dangerous Drugs Law cases. (People v. Requiz, 318 SCRA.635).
I 15. Where murder or homicide results from the use of an unlicensed firearm, the
crime is no longer qualified illegal possession, but murder or homicide, as the
I case may be. The use of the unlicensed firearm is not considered as a separate
crime but shall be appreciated as a mere aggravating circumstance (People v.
Lazaro, 317 SCRA 435).
I 16. An amendment after plea which changes the nature of the offense is prohibited
(Ricers v. CA., GR No. 16041, February 09, 2007). The factor thai: characterizes
I the charge is the actual recital of facts. The real nature cf the criminal charge is
determined not from the captiou or preamble of the Information nor from the
specification of the provision oflaw alleged to have been violated they being con-
I clus1ons of law but by the actual recital of facts in the Cornpiaint or Information
(Lacson v..Executive Secretary, 301SCRA298 [1999]; People vs. Gl'tierrez, 403
I SCRA 178).
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PART II. INQUEST
I
I.
I GENERAL RULES
A. CONCEPT
I Inquest is an informal and summary investigation conducted by a public prosecu-
tor in criminal cases involving persons arrested and detained without the benefit of a
I warrant of arrest issued by the court for the purpose of determining whether or not
said persons should remain under custody and correspondingly be charged in court.
I B. COVERAGE
I .
The conduct of inquest proceedings covers the following: .
1. All offenses covered under the Revised Penal Code and special laws, rules
I and regulations;
2. Where the respondent is a minor (below eighteen [18] years old), the inquest
I investigation shall cover only offenses punisl}able by imprisonment of not
less than six (6) years and one ( 1) day, provided that no inquest investigation
shall be conducted unless the child-respondent shall have first undergone the
I requisite proceedings before the Local Social Welfare Development Officer
pursuant to the Rules on Inquest With Respect to Children in Conflict With
the Law (CICL) (please refer to' Department Circular No. 39, s. 2007 on
I the "Rules on Inquest itlth Re:-.pect to Children in Conflict with the Law as
Defined Under Republic Act No. 9344, Otherwise Known as the "Juvenile
I Justice and Welfare Act of 2006" found in Appendix "A" on p. 300 of this
Manual).
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I 44 Revised Manual for Prosecutors
I
tions headquarters of the PNP or at the office of the inquest prosecutor in
I order to expedite and facilitate the disposition of inquest cases.
I office day following the arrest (Medina vs. Orozco, Jr., 18 SCRA 1168).
I II. PROCEDURE
, ..·
A. COMMENCEMENT OF THE INQUEST PROCEEDINGS
I 1. When Commenced
I a. the affidavit of arrest du!y subscribed and sworn to before him by the arrest-
ing officer;
I b. the investigation report;
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I Revised Manual for Prosecutors 45
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• autopsy report and the certificate of post-mortem examination, if readily
I •
available; and
marriage certificate in parricide cases.
•
tendance;
certificate or statement as to duration of incapacity for work; and
• marriage certificate in frustrated or attempted parricide cases.
I c. Violation of the Dangertius Drugs Law/Comprehensive Dangerous Drugs Act
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• certification from the Traffic Management Group I Land Transportation
I •
Office; and
other evidence of ownership.
• gambling paraphernalia;
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•
photograph of the gambling paraphernalia, if any; and
cash money, if any.
I •
•
chemistry report duly signed by the forensic chemist; and
photograph of the explosives, if readily available.
• ballistics report, if readily available.
I
J. Violation of tl:e Fisheries Law (PD 704)
I •
•
birth certificate; or
dental chart accompanied by a certification from the dentist; or
• affidavits of any of the parent/disinterested parties;
I • certificate of discernment from the LSWD in cases covered by RA
9344 (the Juvenile Justice and Welfare Act).
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Revised Manual for Prosecutors 47
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I
I 3. Incomplete Documents
When the documents presented are not complete to establish probable cause,
I the inquest prosecutor shall direct the law enforcement authorities to submit in
the proper form, the required evidence within the period prescribed under the
provisions of Article 125 of the Revised Penal Code, as amended (please refer
I to NPS JNQ Form No. OJ, s. 2008 on p. 62 of this Manual). Failure to submit
the required evidence within the periods prescribed shall constrain the inquest
prosecutor to order the release of the detained person (please refer to NPS JNQ
I Form No. 02, s. 2008 on p. 64 of this Manual).
The presence of the detained person who is under custody shall be ensured
I during the proceedings. His presence may, however, be dispensed with in the
•
following cases:
I •
•
if he is confined in a hospital; o!
if he is detained in a place under maximum security;
I The absence of fo~ detained person for any of.the foregoing reasons shall be
noted by the inquest prosecutor and reflected in the record of the case.
I All charges and counter-charges arising from the same incident shall, as far as
practicable, be consolidated, and the conduct of the inquest proceedings shall be
held jointly to avoid cont!adictory or inconsistent dispositions.
I 6. Determination of the Arrest by the Inquest Prosecutor
I ,_' The inquest prosecutor shall first determine if the arrest of the detained person
was ~ade in accorrumce with paragraphs (a), (b) and (c) of Sec. 5, Rule 113 of the
Revised Rules on Criminal Procedure which provide that arrests without a war-
I rant maybe effected: (Go vs. Court ofAppeals, 206 SCRA 138 {1992); Umil, et.
al. vs. Ramos, 202 SCRA 251 {1991) and companion cases People vs. Malmstedt,
I 198 SCRA 401 and People vs. Aminnudin, 163 SCRA 402 [1998)).
a. when, in the presence of the arresting officer, the person to be arrested has
I committed, is actually committing, or is attempting to commit an offense; or
b. when an offense has in fact just been committ~d, and the arresting officer has
I probable cause to believe, based on persoual kno~l~dge of facts or circum-
stances, that the person to be arrested h~ _committed it; and
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I 48 Revised Manual for Prosecutors
I
c. when the person to be arrested is a prisoner who has escaped from a penal
I 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.
I For this purpose, the inquest prosecutor miiy summarily examine the arrest-
ing officers on the circumstances surrounding the arrest or apprehension of the
I detained person.
I •
•
recommend the release of the person auested or detained;
prepare a resolution indicating the reasons for the action taken; and
& forward the same, together with the record of the c2se, to the Chief State
I or Provincial/City Prosecutor for appropriate action.
Where the recommendation for the release of the detained person is approved
I 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
• serve the order of release on the law enforcement officer having custody
I 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
I of preliminary investigation, together with the copies of the charge sheet
or complaint, affidavits or sworn statement~ of the complainant and his
witnesses and other supporting evidence (please refer to NPS INQ Form
I No. 03, s. 2008 on p. 66 of this Manual).
I
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I Revised Manual for Prosecutors 49
I
8. Where the Arrest of the Detained Person was Properly Effected
I
Should the inquest prosecutor find that the arrest was properly effected, the
I B. INQUEST PROPER
Where the detained person does not opt for a preliminary investigation or
I otherwise refuses to execute the required waiver, the inquest prosecutor shall
proceed with the conduct of the inquest procceGing, notwithstanding the absence
of a counsel, by examining the sworn statement.s/aftidavits of the complainant
I and the witnesses and other supporting evidence submittt!d.
I If necessary, the inquest prosecutor shall require the presence ~f the com-
plaining witnesses and subject thern t::> an informal and summary investigation or
exann-.tion for purposes of determining the existence of probable ·cause.
I If the inquest prosecutot f-.ds that probable cause exists, he shall forthwith
prepare the resolution with 1M <:orreSpQnding Complaint/Informatio:.1 with the
I ~ec~mmendation that th~_~ame be filed in court. The Complaint/Information shall
m~1cate the o:ffense/s·-C~ommitted and the amount of bail recommended, if ap-
plicable. However, in inquest cases for crimes coveried by the Rules on s,,.n:unary }
I Procedure and RA 6036 where !1'1 bail is required, the inque.;t prosecutor si1..:.!1
recommend the release of the arrested person and prepare the Information for
filing with the court.
I
Thereafter, the record of the case, together with the resolution and the
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Revised Manual for Prosecutors
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1. Contents of the Information
I g. description of the items subject matter of the complaint, if there are any;
1. the age of the complainant or the accused, if below eighteen (18) years of
I age;
j. the. full names and addresses of the parents, custodians or guardians of the
I minor complainant or accused, as the case may be;
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I Revised Manual for Prosecutors 51
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c. forthwith forward the record of the case to the Chief State Prosecutor or
I the Provincial/City Prosecutor for appropriate action.
I the Secretary or the Office of the Regional State Prosecutor as the case may
be, for automatic review. (please refer to DOJ Circular No. 46, s. 2003 on
"Automatic Review of Dismissed Cases Involving RA 9165 [Comprehensive
i
I Dangerous Drugs Act of 2002] "found in Appendix "B" on p. 303 of this
ManuaV
I Should the arrested person execute a waiver, the inquest prosecutor shall
set the case for preliminary investigation which shall be terminated within
fifteen ( 15) days from the execution of the waiver.
I 4. Posting of Bail by the Arrested/Detained Person
I a. If offensP, is bailable
I The inquest .prosecutor must move for the suspension of the bail
hearing until the fifteen (15)-day preliminary investigation of the inquest
I •
•
availability of the judge to act on the case; or
the fact that government offices open for business transactions
at 8:00 o'clock in the morning and close at 5:00 o'clock in tht
I afternoon
• The period pre:;cribed in Article 125 of the Revised Penal Code shall
I not be applicable when the persons arrested/detained without the ben-
efit of a warrant of arrest issued by the court are children defined un~er
Republic Act No. 9344, otherwise known as the "Juvenile Justice and
I Welfare Act of 2006." (please refer to Department Circular No. 39
s. 2007 on the "Rules on Inquest With Respect to Children in Conflict
with the Law as de.fined Under Republic Act No. 9344, Otherwise
I Known as the "Juvenile Justice and Welfare Act of 2006 "found in
i Appendix "A" on p. 300 of this Afanual)
I
III. OTHER MATTERS
I A. PRESENCE OF THE INQUEST PROSECUTOR AT THE CRIME
SCENE
I Whenever a dead body is found by the law enforcement authorities and there
I is reason to believe that the death of the person resulted in foul play, or from the
unlawful acts or omissions of other persons and such fact has been brought to his
attention, the inquest prosecutor shall:
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I Revised Manual for Prosecutors 53
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I 1. forthwith proceed to the crime scene or place of discovery of the dead per-
son;
I 2. cause the immediate autopsy of the dead person to be conducted by the ap-
propriate medico-legal officer in the locality or the PNP medico legal division
I
3. direct the police investigator to cause the talcing of photographs of the crime
scene or place of discovery of the dead body; I
l
t
4. supervise the crime scene investigation to be conducted by the police authori-
I ties as well as the recovery of all articles and pieces of evidence found thereat;
to see to it that the same are safeguarded; and that the chain of the custody
thereof be properly recorded; and •
I 5. submit a written report of his/her finding to the Chief State Prosecutor or the
B. SANDIGANBAYAN CASE~
I Should any complaint cognizable by th~ Sandiganbayan be referred to an
inquest prosecutor for the conduct of inquest proceeding~, the latter shall refrain
I from accepting the same and shall advise the law enforcer to file the complaint
before the Office of the Ombudsman or the Office of the Special Prosecutor
through any of the branch clerk of court in th~ locality.
I C. ABSENCE OR UNAVAILABILITY OF THE INQUEST PROSECUTOR
I D. RECOVERED ARTICLES
I a. see to it that all the articles recovered by the law enforcement authorities
at the time of the arrest or apprehension of the arrested/detained person
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I 54 Revised Manual for Prosecutors
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b. make sure that the corresponding photographs of the recovered articles/
I properties are taken and which photographs should be attached to the
record of the case; and
I c. ensure that the items recovered are duly safeguarded by the law enforcer
and the chain of custody is properly recorded.
The inquest prosecutor shall, with the prior approval of the Chief State
I Prosecutor or the Provincial/City Prosecutor or his du1,y authorized represema-
tive, order the release (please refer to NPS INQ Form No. 06, s. 2008 on p. 69 of
this Manual) of recovered articles to their lawful owner or possessor, subject to
I the conditions that:
I 1. there is a written request for their release (please refer to NPS INQ Form
No. 07, s. 2008 on p. 71 of this Manual);
I 2. the person requesting the release of said articles is shown to be the lawful
owner or possessor thereof;
I 3. the requesting party undertakes under oath to produce said articles before
the court when so required;
6. photographs of said articles are first taken and duly certified to by the
I police evidence custodian as accurately representing the evidence in his
custody.
1. The permissible warrantless arrests are: ( 1) arrests in jlagrante delicto; (2) arrests
I effected in hot pursuit; (3) arrests of escaped prisoners (People vs. Macalaba, 395
SCRA 461).
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I 2. After the filing of the 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
I as provided under Sec. 6, Rule 112 of the Rules on Criminal Procedure. This
five-day rule is mandatory (People vs. Figueroa, 27 SCRA 1239 {1969]).
I
f·
22, 2007).
4. A warrantless arrest is not justified by the mere fact that a crime is being com-
I mitted in one's p1·~sence. The 3!festing officer must have personal knowledge of
such commission. The knowledge must precede the arrest. The arrest cannot be
justified by discovery thereafter that the person was committing a crime (People
I vs. Judge Laguio, GR No. 128587, March 16, 2007).
I 5. Buy-bust operations are considered arrests infiagrante delicto. (People vs. Lacap,
368 SCRA 64.).
I 6. "Just been committed" connotes immediacy in point of time (the time interval
between the actual commission of the crime and the arrival of the arresting officer
must be brief). (People vs. Del Rosario, 305 SCRA 740 [1999])
I 7. A warrantless arrest made three (3) days after the commission of the crime
(People vs. Monda, November 22, 1993, 48 SCAD 478, 228 SCRA 115) or 19
I hours thereafter (People vs. Manlulu, April 22, 1994, 50 SCAD 71, 231 SCRA
701) were held to be unlawful.
I 8. When a police officer seesthe offense, although at a distance, or hears the distur-
bances createi}l thereby, and proceeds at once to the scene thereof, he may effect
I an arrest without a warrant since the offense is deemed committed in his presence
or within his view (People vs. Suero, 195 SCRA 388).
I 9. The "personal knowledge" of the fact of rape which was supplied by the r a p e
victim herself to the arresting officer falls within the purview of a warrantless
arrest (People vs. Alvario, 275 SCRA 529 [1997}).
I I 0. A letter invitation is equivalent to arrest. Where the invitation comes from a
5. During the cond·1ct of inquest proceedings, the inquest prosecutor must keep
I calm and observe proper decorum.
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Revised Manual for Prosecutors
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I TEMPLATES OF INQUEST FORMS
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Revised Manual for Prosecutors 59
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NPS Investigation Form No. 01, s. 2008
I Republic of the Philippines
Department of Justice
I National Prosecution Service
I
INVESTIGATION DATA FORM
I To be accomplished by the Office
I
I LAWIS VIOLATED: WITNESS/ES: Name & Address
I
I DATE & TIME of COMMISSION:
l
PLACE of COMMISSION:
I
I
1. Has a similar complaint been filed before any other office? * YES _ NO _
I 2. Is this complaint in the nature of a counter-charge?* YES
If yes, indicate details below.
NO
I I CERTIFY, under oath, that all the information on this sheet are true and correct to the best of my
knowledge and belief, that I have not commenced any action or filed any claim involving the same issues
I in any court, tribunal, or quasi-judicial agency, and that if I should thereafter learn that a similar action
has been filed and/or is pending, I shall report that fact to this Honorable Office within five (5) days from
knowledge thereof.
I
I Prosecutor Administering Oath
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NPS INQ Form No. 01, s. 2008
I
Republic of the Philippines
I Department of Justice
NATIONAL PROSECUTION SERVICE
I
I Complainant's,
I -versus-
I Respondent/s.
x-----------------------------------------x
I ORDER
(To submit additional evidence/documents)
I
I
I In connection with the investigation being conducted ia the above-captioned case, you
are hereby directed to submit the following evidence/documents, to wit:
I
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62 Revised Manual for Prosecutors
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I within hours from receipt hereof (the period shall not exceed twelve [12] hours,
eighteen [18] hours or thirty-six [36] hours, as the case may be, from arrest); otherwise, the
I undersigned shall order the release of the above-named respondent, and this case shall be set for
preliinary investigation.
I _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _,Philippines
- - - - - - - - 20- - -
I
I Inquest Prosecutor
(Signature over printed name)
I
Received copy, this_ day of _ _ _ _ _ _ _, 20
I
I Copy received by:
I
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NPS INQ Form No. 02, s. 2008
I Republic of the Philippines
I Department of Justice
NATIONAL PROSECUTION SERVICE
I
I Complainant,
LS. No. - - - - - - - -
- versus - For:
I
Respondent.
I x- - - - - - - - - - - - - - - - - - - - - - - -x
I RELEASE ORDER
(Of Detained/Arrested Person)
I
I
I Unless otherwise detained for some other legal cause, you are hereby directed to release
the person of who is presently under your custody in
I connection with the above-captioned case, it appearing that:*
In this connection, you are hereby directed to serve upon the above-named respondent
the attached subpoena together with the copies of the charge sheet/complaint, affidavit and other
supporting documents/evidence.
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_____________ ,Philippines.
I
I Inquest Prosecutor
(Signature over printed name)
I
I APPROVED:
I
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NPS INQ Form No. 03, s. 2008
I Republic of the Philippines
Department of Justice r
I NATIONAL PROSECUTION SERVICE
i
I
I Complainant/s,
-versus-
LS. No.
For:
--~-------
l
I
Respondent/s.
I x-----------------------------------------:x
I SUBPOENA TO RESPONDENT/S
I TO:
I
GREETINGS:
I Under and by virtue of the authority vested in me by law, you are hereby directed to submit
your counter-affidavit and other supporting documents or affidavits of your witness/es, if any, to be
I sworn to before me on 200_ at _ _ a.m./p.m. Attached is a copy
of the com;>laint and other evidence submitted by the complainant.
I You are hereby WARNED that-failure on your part to comply with the subpoena shall
be consid~red as a waiver of your right to present your defense and the case shall be considered
I
INVESTIGATING PROSECUTOR
I
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I 66 Revis'ed Manual for Prosecutors
I NPS INQ Form No. 04, s. 2008
I
Complainant,
I -versus-
For: - - - - - - -
LS. No. - - - - - -
I Respondent.
x-----------------------x
I REQUEST FOR PRELIMINARY INVESTIGATION
AND WAIVER OF ARTICLE 125, REVISED PENAL CODE
I (Where Arrest was Properly Effe~ted)
_ _ _ _ _ _ _ _ _ _ _ _ _,Philippines.
I (Place)
(Date)
I Respondent
I Assisted By:
I Counsel
(Signature over printed name)
I
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Revi'.;ed Manual for Prosecutors 67
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NPS INQ Form No. 05, s. 2008
I
I CERTIFICATION
(For Information in Inquest Cases)
I
I I hereby certify that the foregoing Information is filed pursuant to Sec. 6, Rule 112 of the •
1985 Rules on Criminal Procedures, as amended, the accused not having opted to avail of hi~
I right to preliminary investigation and not having executed a waiver pursuant ~o Article 125 of the
Revised Penal Code. I further certify that this Information is being ii.Jed with the prior authority of
I •
the Chief State Prosecutor/Provincial/City Prosecutor.
!
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Inquest Prosecutor
1
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Revised ·Manual for Prosecutors
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I NPS INQ Form No. 06, s. 2008
I
I Complainant,
I.S. No. _ _ _ _ _ _ __
-versus- For:
I ---------
I x---------------------------x
Respondent.
I RELEASE ORDER
(Of Recove:red Articles)
I
THE EVIDENCE CUSTODIAN
I
I
On the basis of the request made by
- - - - - - - - - - - for the release to his
I custody of the articles/properties particularly described as follows:
I
I you are hereby directed to release to said , the above-described
I articles/properties which are presently under your custody. unless the same are being held for some
other lawful cause.
I _ _ _ _ _ _ _ ,Philippines, _ _ _ _ _ 20_ __
I Inquest Prosecutor
(Signature over printed name)
continued, next page>>
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Revised Manual for Prosecutors 69
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I APPROVED:
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I Evidence Custodian
(Signature over printed name)
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NPS INQ Form No. 07, s. 2008
I
I Complainant,
- versus - LS. No. - - - - -
I For: - - - - - - -
Respondent.
I x-----------------------x
I
I am respectfully requesting the release to my cmtody of certain articles/ properties, more
I particularly described as follows:
I
I which were recovered by the police authorities and presently in the custody of
, and in connection therewith, I declare lunder oath:
I ----------~
I 3. That I undertake to produce the same before your Office or the court when so required;
4. That I have caused the said articles/properties to be photographed/photocopied and certi-
fied by the police custodian as accurately representing the same;
I 5. That I affirm the affidavit/statement executed by me on
__________ and hereby bind myself under penalty of law to appear and
before
I Requesting Party
(Signature over printed name)
I SUBSCRIBEDANDSWORNTObeforemethis _ _ _ _ dayof_ _ _ _ _ __
I 20_ _ _ _, at _ _ _ _ _ _ _ _ _ _ _, Philippines.
I Administering Officer
(Signature over printed name)
I
I RECOMMENDING APPROVAL:
I Investigating Prosecutor
(Sign'1ture over printed name)
I
APPROVED:
I Chief State/City/Provincial Prosecutor
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I 72 Revised Manual for Prosecutors
------------------- ......
::c
t1> ""'l
<
V\ ...-~~~~~~~~~~~~~~~~~--~~~~~~~~~~~~-:. ~
t1>
0.. INQUEST PROCEDURE 0
~
OJ
(12 hours for tight; 18 hours for less grave offense; 36 hours for grave offenses) ~
(]
=
:::l
c:
OJ
....,
0
r::=:::-1~ I
FILING OF INFO IN
I >.
~
..., COURT
-0
...,
0 WITH
RECOMMEND ~
FILING OF
V\ PROBABLE 0
,..,
C'D
CAUSE
INFOIN
z
r~veRsEJ~
c:
,... COURT
...,
0 ~
VI
DISMISSAL OF COMPLAINT &
RELEASE OF RESPONDENT
=
-z
~
"""
SUSTAIN
W/O RECOMMEND
ACTION f'Y
PROBABLE RELEASE OF
ARREST
PROPERLY CAUSE RESPONDENT
CP/PP/CSP iO
EFFECTED REVERSE ~
·~
FILING OF INFO IN
COURT r.ri
AFFIDAVIT OF
~
~
I PRELIMINARY
INVESTIGATION PROPER
I ~EE PROCEDURE
..... · OF P.l. BUT WITHIN
~
~
ARREST 15 DAYS ~
+IR+SS + 0
OTHER DOC (]
~ I PRELIMINARY INVESTIGATION ~
ARREST
NOT
PROPERLY
/
REGULAR P.I.
+RELEASE
....------. I
ACTION BY
CP/PP/CSP
,-- -
~
0
z
~
r.ri
'
----- - - ~
EFFECTED
CONTINUE WITH INQUEST
G<
RECOMMENDS
DISMISSAL OF
COMPLAINT+
RELEASE OF
RESPONDENT
I DISlllSSALOFCOMPLAINT
RELEASE OF RESPONDENT
.....
w
I
PART III. SUMMARY INVESTIGATION
I
I I. GENERAL RULES
I B. COVERAGE
All offenses punishable by imprisonment of less than four (4) years twc (2) months
I and one (1) day, viz:
I 1.
2.
Violations cf Traffic Laws, Rules and Regulations;
Violations of the Rental Law;
3. Violations of Municipal or City Ordinances;
I 4. All other criminal cases where the penalty prescribed by law for the offense charged
is imprisonment not exceeding six months, or a fine r.ot exceeding (Pl,000.00), or
both, irrespective of other imposable penalties, accessory or otherwise, or of the civil
I liability arising therefrom: provided, however, that in offenses involving damage to
property through criminalnegligence, this rule shall govern where the imposable fine
does not exceed ten thousand pesos (Pl0,000.00).
I Offenses with six (6) months imprisonment or fine of Pl,000.00:
I 9) Art.
10) Art.
179 -
200 -
Illegal Use of Uniforms and Insignia
Grave Scandal
11) Art. 202 - Vagrants and Prostitutes (1st Offender)
I 12) Art. 217 - Abandonment of Minor by Person Entrusted With His
Custody
13) Art. 265 - Less Serious Physical Injuries
I 14) Art. 266 - Slight Physical Injuries
15)Art. 239 - Unlawful Arrest
I
contain a certification that a preliminary investigation has been conducted.
,.
Where the prosecut01 opts to conduct preliminary investigation, he/she shall follow the
procedure under Part IV of this Manual.
I
I
I •
I
I
I
I
I
I
I
76 Revised Manual for Prosecutors
I
I
I PART IV. PRELIMINARY INVESTIGATION
I I. GENERAL RULES
I sufficient ground to engender a well-founded belief that a crime has been committed and the
respondent is probah!y guilty thereof and should be held for trial (Sec. 1, Rule 112, Revised
Rules on Criminal Procedure).
2. It is P 'eliminary in Nature.
I . . ..
The investigation is advisedly called preliminary,· as· it is yet to be followed by
.. the trial proper. The investigating ·officer acts upon probable cause and reasonable
I belief, not proof beyond reasonable doubt. The occasion is for the presentation of
such evidence only as may engender a well founded belief that an offense has been
committed and that the accused is probably guilty thereof (Afayuga v. Maravilla, 18
I SCRA 1115).
I merely a more or less summary proceeding intended to discover the person/s who
may reasonably be charged with a crime so as to enable the prosecutor to prepare his
Complaint or Information (U.S. v. Yu Tuico, 34 Phil. 2009; U. S. v. Marfori, 35 Phil.
I 606).
I It is merely inquisitorial and it is often the only means of discovering the perso11s
who may be reasonably charged with a crime, to enable the prosecutor to prepare his
I proceeding for the purpose of determining 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 should be held for trial" is, like court proceedings,
I
I subject to the requirements of both substantive and procedural due process. This is
because a preliminary investigation is considered a judicial proceeding wherein the l
prosecutor or investigating officer; by the nature of his functions, acts as a quasi-
I judicial officer (Cruz v. People, 237 SCRA 439, reiterating Coju£:ngco v. PCGG, 190
SCRA 226(1990)).
t
1
I \
2. It is Merely a Statutory Grant.
3. It is a Personal Right.
In inquest cases, the accused impliedly waive"s his right to a preliminary inves-
I tigation, if he fails to invoke the same within five (5) days from the time he learns
4. It is a Substantive Right.
I While the right to a preliminary investigation is merely statutory, nevertheless,
it is a substantive right and to withhold it would be to transgress constitutional due
I process (Salonga v. Pano, 134 SCRA 438).
I D. COVERAGE
All offenses where the pen3:lty prescribed by law is at least four (4) years, two (2)
I months and one (1) day, without regard to the fine (Sec. 1, par. 2, Rule 1.12, supra.).
All offenses punishable by imprisonment of less than four (4) years two (2) months
I and one ( 1) day where the prosecutor believes that a preliminary investigation should be
conducted.
I All offenses committed by public officials or employees in connection with the per-
formance of their official Juties an<l functions.
I .
E. 'QUANTUM OF EVIDENCE REQUIRED
I The term does not mean "actual and positive cause" nor does it import abso-
lute certainty. It is merely based on- opinion and reasonable belief. Thus, a finding
I of probable cause does not require an inquiry into whether there is sufficient
evidence to procure a· conviction. It is enough that it is believed that an act or
omission complained of constitutes the offense charged. Precisely, there is a trial
I for the reception of evidence of the prosecution in support of the charge (Paredes,
Jr., v. Sandiganbayan, G. R. No.108251, January 31, 1996).
I
I Revised Manual for Prosecutors 79
I
I b. A finding of probable cause needs only to rest on evidence showing that
more likely than not a crime has been committed and was committed by
the suspects. Probable cause need not be based on clear and convincing
I evidence of guilt, neither on evidence es.tablishing guilt beyond reason-
able doubt and definitely, not on evidence establishing absolute certainty
of guilt. As well put in Brinegar vs. U.S., while probable cause demands
I more than ••bare suspicion" it requires "less than evidence which would
justify" conviction. A finding of probable cause merely binds over the
I c. A probable cause has been defined as the existence of such facts and cir-
cumstances as would excite the belief, in a reasonable mind, acting on the
acts within the knowledge of the prosecution, that the person charged was
I guilty of the crime for whic·~ he was prosecutec! (Cruz, Jr. l-: People, 233
SCRA 439 [1994]).
I
I
I 80 Revised Manual for Prosecutors
I
I F. PURPOSES OF TRE CONDUCT OF A PRELIMINARY
INVESTIGATION
I 2. to _protect the State from having to conduct useless and expensive trials
(Tandoc v. Resultan, 175 SCRA 37 [1989)).
1· . G. OFFICERS AUTHORIZED TO CONDUCT PRELIMINARY
INVESTIGATIONS
I The following may conduct preliminary investigations (Sec. 2, par. 1, Rule
112, supra):
I 1. Provincial or City Prosecutors and their assistants;
I Sandiganbayan, (Sec. 15 (1) and Sec. 11 (4) of R. A. No. 6770 [An Act
I
Ombudsman pertains to any act or omission of any public officer or em-
ployee when such act or omission appears to be ill~gal, unjust, improper
or inefficient.
I of the Office of the Solicitor General and other gov~mment agencies was
empowered under Executive Order No. 14, series of 1986, to file and
prosecute before the Sandiganbayan: all cases investigated by it under
I
I 82 Revised Manual for Prosecutors
I
Executive Order No. 1, dated February 28, 1986 and Executive Order No.
I 2 dated March 12, 1986, as may be warranted by its findings. The cases
referred to under E.O. No. 1 and E.O. No. 2 were the ill-gotten cases of
former President Ferdinand Marcos.
I NOTE: The authority to investigate includes the authority to conduct
I II. PROCEDURE
I investigating p;secutor;
I enforcement agency that investigated the complaint, the latter shall sub-
mit the original or duplicate original or certified machine copies of the
affi.davit/s of the complainant/sand his/their witness/es.
I
I Revised Manual fo1 Prosecut9rs 83
I
I 3. upon request of a person arrested or detained pursuant to an arrest without
warrant who executes a waiver in accordance with the provisions of Article
125 of the Revised Penal Code, as amended;
I the respondent/s;
3. the offense/s charged and the place and exact date and time of its/their
I commission; and,
4. whether or not there exists a related case and, if so~ the docket number
I of said case and the name of the investigating prosecutor thereof.
I Within ten (10) days from receipt of the complaint by the prosecutor, he/she
shall:
I ecutor.
2. dismiss the same if he finds no ground to continue with the inquiry (please·
I refer to NPS INV Form No. 02, s. 2008 on p. 110 of this Manual.):
I a. that the offense charged in the complaint was committed outside the
territorial jurisdiction of the office of the investigating prosecutor;
I b. that at the time of the filing of the complaint, the offense/s charged
therein had already prescribed;
I
I Revised Manual for Prosecutors 85
I
I d. that the complainant failed to submit a barangay certification for of-
fenses covered by the Katarungang Pambarangay Law.
3. Where the respondent is a child and he is above :fifteen ( 15) years of age
I but below eighteen (18);the prosecutor shall determine whether or not the
child acted with discernment.
I
• i •· ·:e ~" .'
RESPONDENTIS
I examine all other evidence submitted by the complainant and to obtain cop-
The investigating prosecutor shall issue and send the subpoena, together
I with copies of the complaint, supporting affidavit/s and other documents, by
registered/special delivery mail with return card to a respondent who resides
in a distant place.
I 3. Where Respondent Canon\ bf' S11bpoenaed or if Subpoenaed Does Not
Submit Counter-Affidavit
I '''J;;
4. Objects as Evidence
I Objects as evidence need not be furnished either party but shall be made
accessible for examination, copying or photographing at the expen}>e of the
I requesting party (Sec. 3, par. (b), Rule 112, supra.).
I
I Revised Manual for Prosecutors. 87
I
I City/Municipal Station Commanders of the Philippine National Police
(PNP) maybe requested for the purpose.
I
shall be indicated:
L the name and return address of the sender, and the typewritten/
printed phrase "First Notice Made on ",thus instructing
I
I
Ii
the postmaster/postal, employee of th~ necessity of informing the
sender of the date that the first notice was made on the addressee;
and
I 2. the typewritten/printed request: "If not claimed within five (5)
I
days from the first notice, please return to sender."
'
c. Within ten (10) days from receipt of the unclaimed/returned envelope,
the investigating prosecutor may proceed to resolve the complaint on
I the basis of the evidence presented by the complainant (Sec. 3(d), Rule
112, supra; DOJ Memorandum Circular No. 25 dated 02 October
I 1989).
I Within ten (I 0) days from receipt bf the subpoena together with the com-
plaint and supporting affidavit/s and document/s, the respondent shall submit
I his counter-affidavit and that of his witness/es and other supporting documents
which shall be subscribed and sworn to and certified based on the NPS Sample
Format "A" s. 2008 on p. 131 of this Manual. Copies of the counter-affidavit/s
I and supporting documents, if any, shall be furnished the complainant/s by the
respondents.
I
I
I 88 Revised Manual for Prosecutors
I
1. Extension of Time within which to Submit Respondent's Counter·-
I Affidavit
a. engage the services of counsel in order to assist him during the preliminary
I investigation proceedings;
I a. General Rule
I
I
I Revised Manual for Prosecutors 89
I
I However, if such memorandum, manifestation or motion to dismiss
is verified by the respondent himself, the same may be considered as his
counter-affidavit.
I All thegrc:iunds for the dismissal of the complaint, as well as objec-
tions to the sufficiency. thereof, shall be alleged or incorporated in the
counter-affidavit and shall be resolved by the investigating prosecutor
I jointly on the merits of the case.
I b. Exceptions
2. the fact that the complaint, or one similar thereto or identical there-
I with, has previously been filed with the· Office and has been fully
adjudicated upon on the merits after due preliminary investigation
I proceedings; or
I 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 l
I the submission of the counter-affidavit/sand other supporting documents.
I
4. Action on Motions tO Dismiss on the Basis of an Affidavit of Desistance
I
other circumstances which, when coupled with the desistance, creates doubt as
to respondent's criminal liability. If there is none, .then the complaint may be
dismissed for lack or insufficient evidence and not on the ha.Sis of an affidavit of
desistance.
I
I
I •
3. the cognizance of the said issue pertains to another tribunal (Cf kas v.
I Rasul, supra; Quiambao v. Osorio, supra).
I
I Revised Manual for Prosecutors 91
I
I Upon approval and issuance of the order, the complaint is considered
archived.
I clarificatory questions to the parties or their witnesses if he believes that there are
matters which need to be inquired into personally by him. (please refer to NPS
INV Form No. 07, s. 2008 on p. 116 of this Manual)
I In said hearing, the parties shall be itfforded Lhe opportunity to l:>e 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
I such questions to the parties 0r witnesses concerned (Sec. 3(e), Rule 112,
supra).
I The investigating prosecutor may record the facts and issues clarified and/
or the questions asked and answer/s given during the clarificatory question-
ing which shall be signed by the parties concerned and/or their respective
I counsels. Said notes shall form part of the official record of the case.
Parties who desire to file an appeal or petition for review of the investigat-
I ing prosecutor's resolution may, at their option, cite specific portions of the
oral testimony of any of the parties/witnesses by referring to the notes taken
by the investigating prosecutor.
I 3. · No Right to Counsel
I It has been held that there is nothing in the rules which render a prelimi-
nary investigation invalid without the assistance of counsel. (People v. Narca,
I 275 SCRA 696)
I inception.
I The investigating prosecutor shall not require or allow the filing or submis-
sion of reply-affidavits and/or rejoinders except:
I 1. where new issues of fact or questions of law which are material and sub-
stantial in nature are raised or invoked in the counter-affidavit or subsequent
pleadings; and,
I 2. when there exists a need for said issues or questions to be controverted or
I In sueJi a case, the period for the submission of reply affidavits or rej0inders
shall in no case exceed five (5) days unless a longer period is authorized by the
Chief State Prosecutor/Regional State Prosecutor/ Provincial or City Prosecutor
I concerned.
Neither shall the investigating prosecutor require nor allow the filing or
I submission by the parties of raemoranda unless the case involves difficult or
complicated questior:s of law or of fact. In any event, the filing of memoranda by
I the parties shall be done simultaneously and the period therefor shall not exceed
ten (10) days, unless a longer period is authorized by the Chief State Prosecutor/
Regional State Prosecutor/Provincial or City Prosecutor concerned (please refer'
2. when the complaints arose from one and the same incident or transaction or
I series of incidents or transactions; and
3. cases involving common parties and founded on factual and/or legal issu~s of
I the same or similar character.
I
I Revised Manual for Prosecutors 93
I
H. ACTIONS ON MOTIONS TO DISQUALIFY /INHIBIT
I l. If a motion to disqualify/inhibit the investigating prosecutor is filed by any
I of the parties at any stage of the preliminary investigation, the same shall
be forwarded to the head of office who may designate another investigating
prosecutor to handle the said preliminary investigation.
I 2. · The Secretary of Justice, the Chief State Prosecutor or the Regional State
Prosecutor shall designate a prosecutor from another province or city within
I the region or a state prosecutor in the Regional State Prosecution Office, as
Acting City or Provincial Prosecutor, to investigate and prosecute a case in
instance<; where patties question the partiality or bias of prosecutors of a
I particular provincial or city prosecution office (par. 11, DOJ Order No. 318
dated 28 August 1991 [found in Appendix "C" on p. 304 of this Manual], as
I The investigating prosecutor shall consider the case submitted for resolu-
ti on: ..
I 1. when the respondent carmot be subpoenaed or, if subpoenaed, does not sub-
mit his counter-affidavit within the reglementary period. In such a case, the
I If the investigating prosecutor does not find sufficient basis for the pros-
ecution of the respondent, he shall prepare the resolution recommending the
I a. Caption of resolution
I 5. the date of the assignment of the case to or receipt of the case record
by the investigating pwsecutor; and
b. Names of parties
I The complete names of all the complainants and respondents in the
I 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.
I Thename/softhevictim/sorinjuredparty/ies,nottheirrepresentative/s,
shall appear in the caption. In cases referred to the prosecution by the law
enforcement agency where there is no identified victim, as in prohibited
I drugs cases, the complainant shall be the police station involved, followed
by the name and designation of the police officer representing the police
station.
I
I Revised Manual for Prosecutors 95
I
I 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)".
I c. Case Number
I • Sequential codes:
I o five (5) digit number - series number for an entire calendar year
• Ulustrati ve examples:
I o I-01-INV-08A-00001
•I Region I
I • 01
•INV
ORSP
regular PI or summary investigation case
• 08 year 2008
I •A
• 00001 -
month of January
first regular PI/summary investigation case fo:.: year
I 2008
o l-05a-INQ::.08A-00010 l
I •I
• 05
Region I
OPP La Union
•a Agoo Sub-Station
I • INQ
• 08
inquest case
year 2008
•A month of January
I • 00010 - l Qth inquest case for year 2008
I o XV-01-INV-08L-01000
•XV National Capital Region
• 01 OCP Antipolo
o XVI-INV-08L-03000
I •XVI
• INV
OCSP
regular PI or summary investigation
• 08 year 2008
I •L
• 03000
month of December
3,0001h PI/summary investigation case
I prosecutor.
All material details that should be found in the information prepared
by the Investigating Prosecutor shall be stated in the resolution.
I £ Parts of a Resolution
I 1. Part 1 shall state the nature of the case as disclosed in the evidence
presented by the complainant such as his affidavit-complaint, the
I 3. Part 3 shall allege the respondent's version of the incident. This must
also be concise: ,
I 4. Part 4 shall contain the discussion, analysis and evaluation by the
prosecutor of the evidence presented by the complainant and the
I respondent, without relying on the weakness of the defense of the
respondent. It shall also contain the conclusion of the prosecutor. The
I The complete names and addresses of the complainant and the re-
spondent shall be set out at the end of the resolution after the signature
I
I 98 Revised Manual for Prosecutors
I
4. Period to Conduct the Preliminary Investigation
I The preliminary investigation of complaints shall be terminated and re-
I solved within a period of sixty (60) days from the date of assignment to the
investigating prosecutor, with a maximum of two (2) 15-day extensions in the
following cases:
I a. capitill offenses
b. complex issues
I c.
d.
with counter-charges
consoiidation of related complaints
e. reassignment
I f. other urgent/valid reasons
I
I Revised Manual for Prosecutors 99
I
I • the full name and aliases, if any, and address of the accused;
• the age and date of birth of the complainant or the accused, if eighteen
I ( 18) years of age or below;
• the full names and addresses of the parents, custodian or guardian of the
I minor complainant or accused, as the case may be;
I •
,.
the bail recommended, ifthe charge is bailable.
I a. Lack of a Certification
The designation of the offense is not binding upon the Court (Cinco
I 1. approving the resolution and directing the transmittal of a copy thereof to the
parties; or,
I 2. disapproving the resolution and returning the same to the investigating pros-
ecutor for further appropriate action; or
I 3. reversing the recommendation of the investigating prosecutor, in which case,
the Chief State/Regional State/Provincial or City Prosecutor
I
I Revised Manual for Prosecutors 101
I
I a. may file the corresponding Information in court (except the Regional State
Prosecutor); or
I b. direct any other state prosecutor or assistant prosecutor, as the case may
be, to do so. .
I In both instances, there is no more need for the head of office concef'led to
conduct another preliminary investigation (Sec. 4, par. 3, Rule 112, supra.). t
I M. REOPENING OF THE PRELIMINARY INVESTIGATION
I
I
I After a ca5e under preliminary investigation has been submitted for resolu-
tion under the provisions of the preceding section but before the approval and
promulgation of said resolution, the preliminary investigation may, upon motion
I of a party, be reopened for the purpose of receiving newly discovered evidence
and/or in cases where respondent has not been notified of the complaint. The re-
I opening should be with the prior authorization of the Chief State/Regional State/
I
Provincial or City Prosecutor concerned. The preliminary investigation shall be
reopened subject to the following conditions:
1. the motion is verified and a c~py thereof furnished the opposing party;
I
I
I
I 2. the motion is accompanied with the newly discovered evidence and/or re-
spondent's counter-affidavit; and,
I 3. the motion sufficiently and satisfactorily shows valid and justifiable reason
for the failure of the movant to submit the newly.discovered evidence or the
I .
I
I 102 Revised Manual for Prosecutors
I
0. FILING OF THE INFORMATION IN COURT; RULES TO FOLLOW
I 1. An Information filed in court shall be supported by the affidavits and counter-
I affidavits of the parties and their witnesses, together with other supporting
evidence and the resolution on the case (Sec. 7(a), Rule 112, supra.).
A motion for reconsideration filed within fifteen ( 15) days from receipt of the
I resolution shall be acted upon within thirty (30) days from receipt of the motion
by the assigned prosecutor. The motion must be verified and accompanied by
I proof of service to the opposing party. It must state clearly and distinctly the
grounds relied upon in support of the motion.
I Where the Information has already been filed in court, the Chief State/
Provincial/City Prosecutor may not give due course to the motion for reconsid-
eration until there is a showing that the movant has filed a motion with the court
I for the suspension of the proceedings, and the court has granted such motion to
~uspend proceedings.
I The Office of the Chief State/Provincial/City Prosecutor sha1J r~solve the mo-
tion for recon~ideration within the period fixed by the court.
I Once the motion for reconsideration has been resolved, a motion should be
filed in court by the Chief State/Provincial/City Prosecutor or his/her authorized
I assistant, attaching thereto the resolution on the motion· for reconsideration, in-
forming.the court of the action taken thereon and asking it either to proceed with
the case, or withdraw the Information or cause such other measures to be done as
I may be warranted.
./""""".
bCTION ON A REINVESTIGATION
I Before the filing of an information in court, a motion for reinvestigation of the
I After the trial court has acquired jurisdiction over the case, any motion for
reinvestigation shall be addressed to the court and not to the public prosecutor or
I Secretary of Justice. It is the trial judge who has sole authority to rant or deny
the motion for reinvestigation (Crespo v. ogu , 151 SCRA 469; Velasquez v.
Tuquero, 182 :SCRA 38-8).
I
I Revised Manual for Prosecutors 103
I
I A reinvestigation is proper only if the accused's substantial rights would be
impaired (Antiporda, Jr. v. Garchitorena, 321 SCRA 551).
I 1. The prosecutor is not bound by the qualification of the crime but by the evidence
presented during the preliminary investigation (Orq11inaza v. People, G. R. No.
I 165596, November 17, 2005).
2. If, after preliminary investigation, a case is filed in the Court of· First Instance
I (now the Regional Trial Court), the prosecutor cannot file another Information
charging a different offense based on the same preliminary im~estigation. He must
conduct another preliminary investigation (Luciano v. Mariano, et. al., 40 SCRA
I 187).
6. It is a fundamental principle that when on its face, the Information is null and
I void for lack of authority to file the same, it cannot be cured nor resurrected by an
.amendment. Another preliminary investigation must be undertaken and thereaf-
ter, based on the evidence adduced, a new Information should be filed (Cruz, Sr.,
I v. Sandiganbayan, 194 SCRA 474).
}
8. The principle is not, however, applicable where the delay in the termination of the
I preliminary investigation cannot be imputed solely to the prosecution but because
of incidents which are attributable to the accused and his counsel (Gonzales v.
I
I Revised Manual for Prosecutors 105
I
I Sandiganbayan, 199 SCRA 298; Defensor-Santiago v. Garchitorena, 228 SCRA
214).
I 9. In Dee vs. Court of Appeals (November 21, 1994, 56 SCAD 684, 238 SCRA 254),
the Supreme Court reiterated its pronouncement in Crespo vs. Mogul (I 5 I SCRA
462), that the Secretary of Justice, as far as practicable, should refrain from en-
I tertaining a petition for review or appeal from the action of the prosecutor when
the Co:E1plaint or Information has been filed in court. The matter should he left
entirely for the determination of the Co'.lrt.
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I 106 Revised Manual for Prosecutors
I
I
I
I
I
TEMPLATES & SAMPLE FORMS
I USED IN THE CONDUCT OF THE
PRELIMINARY INVESTIGATIONS
I
I
I
I
I
I
I
INVESTIGATION DATA FORM
I To be accomplished by the Office
I
I LAWIS VIOLATED: WITNESS/ES: Name & Address
I
I DATE & TIME of COMMISSION: PLACE of COMMISSION:
l
I
1·
1. Has a similar complaint been filed before any other office? * YES _ NO _
I 2. Is this complaint in the nature of a counter-charge?* YES
If yes, indicate details below.
NO
I I CERTIFY, under oath, that all the information on this sheet are true and correct to the best of my
knowledge and belief, that I have not commenced any action or filed any claim involving the same issues
I in any court, tribunal, or quasi-judicial agency, and that if I should thereafter learn that a similar action
has been filed and/or is pending, I shall report that fact to this Honorable Office within five (5) days from
knowledge thereof.
I
I Prosecutor Administering Oath
I
I
I
I
I
I
I
I
I
I Revised Manual for Prosecutors 109
I
NPS Investigation Form No. 02, s. 2008
I
I Republic of the Philippines
Department of Justice
NATIONAL PROSECUTION SERVICE
I
I
Complainant,
I I.S. No.
For:
~--------~
~~~~----~~--
I versus -
I Respond'!nt.
x.-------------------------------------------------------------------------------------------------------------------
-----x
I
RESOLUTION
I This refers to the above-entitled complaint for _ _ _ _ filed bv _ _ _ _ against
I respondent ~~--~---
Section 3(b), Rule 112 of the Revised Rules on Criminal Procedure, provides that the
I investigating officer shall either dismiss the complaint if he finds no ground to continue with the
investigation or issue a subpoena to the respondent.
I In this connection, we are constrained to dismiss the complaint for the following
reason(s):
I [The investigating prosecutor may choose any of the reasons for dismissing the com-
plaint]
(__) the offense charged in the complaint was committed outside the territorial jurisdic-
tion of this Office; (Brief explanation)
I (__) at the time of the filing of the complaint, the offense charged therein had already
prescribed; (Brief explanation)
I ~
(__) the complainant is not authorized under the provisions of pertinent laws to file the
complaint; (Brief explanation)
I
I 110 Revis~d Manual for Prosecutors
I
WHEREFORE, the undersigned investigating prosecutor respectfully recommends that
I the above-entitled complaint be DISMISSED.
I _ _ _ _ _ _ (place), _ _ _ _ _ (date).
I
INVESTIGATING PROSECUTOR
I APPROVED:
I
(Head of Office)
I Copy Furnished:
I
I
I
•
I Department of Justice
NATIONAL PROSECUTION SERVICE
I
I Complainant/s,
I -versus-
I Respondent/s.
x-----------------------------------------x
I
SUBPOENA TO COMPLAINANT
I (optional but not necessary)
I TO:
I GREETINGS:
I Under and by virtue of the authority vested in me by law, you are hereby required to
appear before me at , on
___________, 200_ at_ a.m./p.m. ir1 the preliminary investigation of the above-
I entitled complaint to be held at the time and place-above-specified.
I
INVESTIGATING PROSECUTOR
I
I
I
I 112 Revfsed Manual for Prosecutors
I NPS INV Form No. 04, s. 2008
I -versus-
LS. No.
For:
~~~~~----
----------
I Respondent/s.
x-----------------------------------------x
I
SUBPOENA TO RESPONDENT/S
I TO:
I
I GREETINGS:
Under and by virtue of the authority vested in me by law, you are hereby directed to submit
I your counter-affidavit and other supporting documents or ~ffi.davits of your witness/es, if any, l:o be
sworn to before me on , 200_ at __ a.m./p.m. Attached is a copy
of the complaint and other evidence submitted by the complainant.
I You are hereby WARNED that failure on your part to comply with the subpoena shall
I be considered as a waiver of your right to present your defense and the case shall be considered
submitted for resolution based on the evidence on record.
l
I WITNESS MY HAND this
_ _ _ _ _ _ , Philippines.
200 at
I
I INVESTIGATING PROSECUTOR
I
I
Revised Manual for Prosecutors 113
I
I
NPS INV Form No. 05, s. 2008
I
Republic of the Philippines
I Department of Justice
NATIONAL PROSECUTION SERVICE
I
I Complainant/s,
LS. No.
---------~
I -versus- For:
I Respondent/s.
){------------------------------------------x.
I SUBPOENA TO RESPONDENT
TO:
I
I GREETINGS:
In connection with the above-entitled complaint, and by virtue of the authority vested in
I me by law, you are hereby directed to obtain, personally or through your representative, copies of
the complaint, supporting affidavits and other evidence submitted by the complainant at _ __
_ _ _ _ _ _ _ _ _ _ _ _ __,on 200_ at __ a.m./p.m.
You or your representative are/is likewise entitled to ex.amine all other evidence submitted by
complainant on the date and time herein specified.
You are hereby WARNED that failure on your part to comply with the subpoena shall be
considered as a waiver of your right to be furnished copies of the complaint, 8upporting affidavits
and other documents, as well as to ex.ami?e all other evidence submitted by the complainant.
I
INVESTIGATING PROSECUTOR
I
I 114 Revised Manual for Prosecutors
I NPS INV Form No. 06, s. 2008
I
Republic of the Philippines
I Department of Justice
NATIONAL PROSECUTION SERVICE
I
I
I Complainant,
LS. No. ~~~~~~~~~~
- versus - For:
I
Respondent.
I x-----------------------------------------x
I ORDER
I Considering the difficult and/or complicated questions of fact and of law involved in the
instant case, the parties are hereby required to simultaneously submit their respective memoranda
within ten (10) days from receipt hereof. After the lapse of the said period, this case shall be
I deemed submitted for resolution.
SO ORDERED.
I _____ _, Date.
I
I INVESTIGATING PROSECUTOR
I
I
I
I
Revised Manual for Prosecutors 115
I
I NPS INV Form No. 07, s. 2008
I
I
Complainant/s,
I -versu~-
I Respondent/s.
I :x------------------------------------------x
I
I TO: (Respondent/s and Counsel)
I
TO: (Witness)
I
I GREETINGS:
l
Pursuant to Sec. 3(e), Rule 112 of the Revised Rules on Criminal Procedure, and by virtue
I of the authority vested in me by law, you are hereby required to appear before me at _ _ _ __
, 200_ at __ a.m./p.m., for the
- - - - - - - - - - ·, on
I conduct of clarificatory questioning where only the undersigned can ask questions. You are hereby
informed of your right to be represented by counsel in the said hearing. If you so desire, you may
submit written questions to the undersigned that may be asked of the party/ies and/or witness/es.
I WITNESS MY HAND this day of 200 at
_ _ _ _ _ _,Philippines.
I
INVESTIGATING PROSECUTOR
I
116 Revised ·Manual for Prosecutors
I
I NPS INV Form No. 08, s. 2008
I Respondent.
x--·------------------------------------------x
I Complainant,
LS. N o . - - - - - - - - - - -
I - versus - For:
I Respondent.
x---------------------------------------------x
I ORDER OF CONSOLIDATION
I L__) arose from one and the same incident or transaction or series of incidents or transactions;
L__) involve common parties and are founJed on factual and/or legal .issues of the same or
I similar character,
the same are hereby ordered conso\idated and th~ joint preliminary investigation thereof shall be handled by
I Asst. City Prosecutor/Asst. Provincial Prosecutor/State Prosecutor to whom
the complaint with the lowest docket number has been raffied/assigneJ or at the discretion of the head of
office. He/she shall terminate the proceedings within the prescribed period of sixty (60) days from receipt
I of the assignment.
SO ORDERED.
I _ _ _ _ (Place)_ _ __ _ _ _ (Date) _ _ __
I
CITY/PROVINCIAL/CHIEF STATE PROSECUTOR
I
Revised Manual for Prosecutors 117
I
I
I NPS INV Form No. 09, s. 2008
I (Date)
I RE DESIGNATION OF PERSONNEL
I In the interest of the service, and pursuant to existing laws, rules and regulations, and by
reason of the inhibition of the Office of the , which is
I • hereby approved, ASST. CITY PROSECUTOR I ASST. PROVINCIAL PROSECUTOR I STATE
PROSECUTOR of the Office of the City/Provincial
Prosecutor of is hereby designated as Acting City/Provincial Prosecutor
I of
entitled "
to conduct the preliminary investigation in I.S. No. _ _ _ _ __
", for , and, if warranted by
the evidence, to file the corresponding Information/s in court.
I
T~is Orde1 shall take effect immediately and shall remain in full force until revoked or
I superseded.
I
Copy furnished:
I All Concerned.
I
I
I
I
I
I 118 Revised Manual for Prosecutors
I ·Samplt.• H.t.•solution .
I
Republic of the Philippines
I Department of Justice
NATIONAL PROSECUTION SERVICE
I
I Complainant,
LS. No. _ _ _ _ _ _ __
I - versus - For:
I Respondent.
X-------------------------------------------X
I
RESOLUTION
I
I This resolves the above-entitled complaint for violation of Sec. 19(b), paragraphs (1) and
(2), of RA 8239, otherwise known as the "Philippine Passport Act of 1996", filed by the Department
of Foreign Affairs against a.k.a. _ _ _ _ _ __
I birth certificate, pursuant to which she was issued a passport in the name of a.k.a.. She .did so in
order for her to be able to again work in Taiwan after her employment contract in the said country
had expired in 1999. Using the said passport, she got employed in Taiwan in 2001 and finished
I the said contract in 2004. She was hired by another company in Taiwan in 2004, which contract
she finished in March this year. Meanwhile, she met a Taiwanese boyfriend who knew about her
change of name. As they decided to get married, they applied for legal capacity from the Taipei
I Economic and Cultural Office (TECO). In the course thereof, she was asked to get a clearance
from the DFA regarding her change of name.
I . Complainant, thus, accuses respondent for assumption of identity and use of passports
issued under an assumed name, under Sec. I 9(b ), pars. I & 2, of RA 8239. He claims that re-
I spondent personally applied for Passport Nos. HHI6090l and MM86045l under the name a.k.a.,
I
I
I which passport issuances were confirmed by the DFA computer database. She also used the said
passports in going to and from Taiwan as a contract worker. The Department's computer database
also revealed the following issuances in the name of , born on December 2, 1972
I in Cebu City, to wit:
I Passport No.
Date & Place ofJ ssue:
VV0166339
30 April 2007/Manila
I To substantiate his claim, complainant submitted the application record of Passport Nos.
MM860451 and VV0166339, as well as the photopage avd pertinent pages of Passport Nos.
HH160901 and MM860451 showing the visas and Bureau of Immigration departure and arrival
I stamps.
Finally, complainant claims that based on the application records of Passport Nos.
I MM86045landVV0166339,itclearlyappearsthatthephotographsofa.k.a.and _ _ _ _ __
belong to one and the same person. Hence, this complaint.
I In exculpation, respondent argues that she could not be held liable under Sec. 19(b) of
RA 8239 as she did not make any falsity in the procurement of Pissport Nos. MM860451 and
I HH160901. The fact that her photograph appears on beth passports does not mean that she au-
thored any kind of falsity, the truth being that sh~ m~rely paid an old woman "fixer" the amount
of P8,0CJO.OO, who also assured her that she would be able to leave for and work in Taiwan for the
I second time. The said old woman "fixer" who was only known to her as "Manay" might have
confederated with smne DfA employees since after only five (5) days, she gave her the passport
bearing the name a.k.a.
I She was compelled to use the subject passports in going to Taiwan out of sheer necessity as
she was rendered jobless after her employment contract in Taiwan had expired. Returning to work
I as a factory worker in Taiwan was the only means for her to improve her family's living conditions,
she being the sole breadwinner. Then, she met a Taiwanese boyfriend who expressed interest to
I marry het. Together, they went to the TECO to secure legal capacity tolmarry, whereupon she was
told to clear with the DFA.the matter of her having used the subject passports in the name of a.k.a
At the DFA, she voluntarily surrendered the subject passports and prepared a written explanation
I on how they were issued, as advised by complainant. She did so in all honesty and good faith,
hoping that it would solve her problem. She never expected that her having sought the help of the
DFA would result in her being charged criminally.
I Finally, she denies any criminal intent, imploring the kind understanding of authorities, as
she had been merely forced by circumstances beyond her control, like the lack of job opportunities
I in the country. She argues that even the Supreme Court in the case of P~ople versus Librero, GR
No. 132311, September 28, 2000, recognizes the difficult timt:_s_ we are in and realizes that hopes
I Sec. 19(b)(l) of RA 8239 penalizes any person who willfuily and knowingly "makes any
false statement in any application for passport with the intent to induce or secure the issuance of
I a passport under the authority of the Philippine Government, either for his own use or the use of
another xx x". Given the above factual backdrop, there is no gains:iying that respondent has
committed a false statement or misrepresentation in the appljcation for Passport No. MM860451
I when she stated therein that she is a. l•. a, born in Marikina on February 21, 197 8 when, in truth and
in fact, she is not.
I Respondent's claim of good faith and lack of criminal intent is unavailing in the instant
case. Firstly, RA 8239 is a special law which does not require criminal intent; the offense being
I ma/um prohibitum and the mere commission of the prohibited act is punishable. Moreover, being
ma/um prohibitum, good faith is not a valid defense. Secondly, evidence adduced ::;hows that
Passport No. MM860451 is a renewal of Passport No. HE 160901. Thus, it appears that respondent
I has assmoed the identity of a.k.a not only once but twice, in 2001 and 2004, which is anathema
to any claim of good faith and/or lack of criminal intent. Thirdly, record shows that the respective
applications for Passport Nos. HH160901 and MM86045 i were personally filed by respondent
I applicant. Necessarily, respondent who posed to be a.k a personally appeared and processed the
subject passport applications. She has, therefore, knowingly participated in the commission of the
prohibited act. Even assuming gratia argumenti that somebody else has instigated the commission
I of the prohibited act, respondent is still criminally liable for her own acts. In fact, she knowingly
acceded to the scheme allegedly proposed by a fixer named "Manay", even paying the latter a
I sizeable amount.
However, considering th.it the application record of Passport No. HH160901 had already
I been disposed of, respondent could no longer be prosecuted for assumption of identity in· relation
to the said passport for lack of documentary evidence to prove the violation. As regards Passport
No. MM86045 l which is amply supported by the passport application record, probable cause
I exists against respondent for violation of Sec. l 9(b)( 1) of RA 8239.
Evidence adduced likewise sufficiently shows that after securing Passport No. MM86045 l
I in violation of Sec. l 9(b)( 1) of RA 8239, respondent used the said passport on three (3) separate
instances, to wit: (I) on October 7, 2004 when she applied for a visa to Taipei at the TECO; (2)
I on October 13, 2004 when she left the Philippines for Taipei; and (3) on March 27, 2007 when she
arrived in and entered the Philippines from Taipei. All these acts fall under the second paragraph
of Sec. l 9(b), RA 8239, which penalizes any use or attempt to use a passport that has been secured
I and issued by means of any false statement. Again, inasmuch as RA 8239 is ma/um prohibitum,
While we agree that Filipino migrant workers have greatly contributed to our economy, that
I a better future for Filipinos lie in overseas employment, we cannot bargain away faithful observance
of our laws and legal processes in the name of economic prosperity. Trite as it may sound, ours is a
government of laws and not of men. For government stability and good governance, our laws must
I be fully enforced,· especially those relating to the issuance and use of Philippine passports which
carry the seal of our Republic and embody a request for other governments to allow the bearer
I to pass safely and freely. In that sense, a Philippine passport is not only a public document but a
representation of our government. To protect its integrity, tinkering with the said document must
be dealt with severely.
I WHEREFORE, premises consid"red, undersigned respectfully recommends that upon
~pproval of this resolution, the attacheci informations for violation of Sec. 19(b) of RA 8239, one
I (1) c<Junt under paragraph 1 and three (3) counts under paragraph 2, be filed against respondent
I Investigating Prosecutor
I RECOMMENDING APPROVAL:
I APP R 0 VE D:
I
I Copy Furnished:
DlRECTOR ~~~~~~~~~-
I Passport Division
DEPARTMENT OF FOREIGN AFFAIRS
Roxas Blvd., Pasay City
I
Secretariat, Inter-Agency Committee
INFORMATION
I The undersig~1ed State/Assistant Provincial/Assistant City Prosecutor, hereby accuses
_ _ _ _ _ _ _ a.k.a with violation of Sec. 19(b), paragraph 1, of RA
I 8239, otherwise known as "The Philippine Passport Act of 1996", committed as follows:
I criminally make a false statement in the application for Passport No. MM860451,
by stating therein that she is a.k.a., born on February 21, 1978 in Marikina, and
attaching her own photograph to the said passport application, thereby assuming
I the identity of the said a.k.a., with the intent to induce or secure the issuance of a
passport under the authority of the Philippine Government, as she has in fact secured
the issuance of Passport No. MM860451 for her own use and benefit, in violation of
I RA 8239 as well as the rules and regulations prescribed in relation thereto.
I CONTRARY TO LAW.
I
Invest!gating Prosecutor
I
continued, next page >
I
'
I portunity t() submit controverting evidence. I further certify that the filing of this Information is
with the prior authority and approval of the Chief State/Provincial/City Prosecutu1~
I Investigating Prosecutoi-
•
I 1.
----------~
c/o Secretariat, Inter-Agency Committee
I 3. AND OTHERS
Enclosures:
I Approved Resolution dated December 7, 2007
Complaint-Affidavit of with attachments
I Counter-affidavit of dated September l l, 2007
I - versus -
CRIM. CASE NO.
~--------
(I. S. No. _ _ _ _ _ _ __ )
For: Violation of Sec. 19(b)(2)
I ofRA8239
a.k.a.
------
I -At-Large-
(c/o address)
----~
Accused.
I x---~------------------------------------------x
I INFORMATION
I That on October 13, 2004 or thereabout, in Pasay City, Metro Manila, and
within the jurisdiction of this Honorable Court, the above-named accused did then
and there knowingly, unlawfully and criminally use or attempt to use, in her de-
I parture to Taipei, Passport No. MM860451 in the name of a.k.a, born on February
21, 1978 in Marikina, which passport was secured by the said accused by means of
I CONTRARY TO LAW.
I
continued, next page >
I
I Revised Manual for Prosecutors 125
I
I CERTIFICATION
I
I HEREBY CERTIFY that I have conducted a preliminary investigation in this case in
I accordance with law; that the complainant was personally examined and that on the basis of the
sworn-statements and other evidence presented, there is reasonable ground to believe that the
crime charged has been committed and that the accused is probably guilty thereof; that the accused
I was informed of the complaint and of the evidence presented againsl: her and was given the op-
portunity to submit controverting evidence. I further certify that the filing of this Information is
with the prior authority and approval of the Chief State/Provir...:;ial/City Prosecutor.
I City of Manila, Philippines, December 7, 2007
I Investigating Prosecutor
I 1.
------~---
c/o Secretariat, Inter-Agency Committee
I Against Passport Irregularities
Department of Foreign Affairs
Roxas Blvd., Pasay City
I 2. THE RECORDS CUSTODIAN
(or his duly authorized representative)
I Consular Records Division
De1~artment of Foreign Affairs
I 3. AND OTHERS
I Enclosures:
Approved Resolution dated December 7, 2007
Complaint-Affidavit of with attachments
I Counter-affidavit of dated September 11, 2007
I
People of the Philippines,
I Plaintiff,
- Vfrsus - (I. S. No
~~~~~~~~-~--
)
For: Violation of Sec. 19(b)(2)
ofRA8239
I a.k.a.
-At-Large-
I (c/o address),
Accused.
I x---~-------------------------------x
INFORMATION
I
The undersigned State/Assistant Provincial/Assistant City hosecutor, hereby accuses _
I - - -a.k.a. with violation of Sec. 19(b),
paragraph 2, of RA 8239, otherwise known as "The Philippine Pas~port Act of 1996", committed
I as follows:
That on March 27, 2007 or thereabout, in Pasay City, Metro Manila, and
I within the jurisdiction of this Honorable Court, the above-named accused did then
and there knowingly, unlawfully and criminally use or attempt to use, in her arrival
in, and entry to, the Philippines from Taipei, Passport No. MM86045 l in the name
I of a.k.a., born on February 21, 1978 in Marikina, which passport was secured by
the said accused by means of false statements in the application for passport, it;i
violation of RA 8239 as well as the rules and regulations prescribed in relation
I thereto.
I CONTRARY TO LAW.
I sworn-statements and other evidence presented, there is reasonable ground to believe that the
crime charged has been committed and that the accused is probably guilty thereof; that the accused
was informed of the complaint and of the evidence presented against her and was given the op-
I portunity to submit controverting evidence. I further certify t!:at the filing of this Information is
with the prior authority and approval of the Chief State/Provincial/City Prosecutor.
I Investigating Prc.1ecutor
2~
I THE RECORDS CUSTODIAN
(or his duly authorized representative)
Consular Records Division
3. AND OTHERS
I
BAIL RECOMMENDED: THIRTY THOUSAND (P30,000.00) PESOS
I Enclosures:
I - versus -
CRIM. CASE NO. - - - - - -
(1.S. No. )
For: Violation of Se~. 19(b)(2)
I ofRA8239
_____a.k.a. _ _ _ _ __
I -At-Large-
(c/o address),
Accused.
I x---------------- x
I INFORMATION
I and there knowingly, unlawfully and criminally use or attempt to use Passport No.
MM860451 in the name of a.k.a., born on February 21, 1978 in Marikina, in her ap-
plication for visa to Taipei, which Passport No. MM860451 was secured by the said
I accused by means of false statements in the application for passport, in violation of
RA 8239 as well as the rules and regulations prescribed in relation thereto.
I CONTRARY TO LAW.
I Investigating Prosecutor
I Investigating Prosecutor
I 1. ---~-~-~
c/o Secretariat, Inter-Agency Committee
Against Passport Irregularities
I Department of Foreign Affairs
Roxas Blvd., Pasay City
I 3. AND OTHERS
Enclosures:
I Approved Resolution dated December 7, 2007
Complaint-Affidavit of with attachments
I Counter-affidavit of dated September 11, 2007
I
I Complainant,
LS. No.
---------
- versus - For:
I
I Respondent.
x-------------------------------------------------------x
I ORDER
This treats of the motion to suspend proceedings filed Ly respondent based on the existence
I of a prejudicial question.
I
Complainant counters that .....
I
The issues having been joined, we now resolve.
I
I (Brief discussion)
Considering the pender.cy of a civil case which involves facts intimately related to those
I upon which the instant complaint for is based, and that in the resolution of the issue
or issues raised in the said civil case, the guilt or innocence of the accused would necessarily be
determined, undersigned finds the existence of a prejudicial question, thus, warranting the suspen-
I sion of this preliminary investigation.
I SO ORDERED.
_ _ _ _ _ _, Date.
I
I RECOMMENDING APPROVAL:
I
I APPROVED:
I
I CERTIFICATION
I I HEREBY CERTIFY that I have personally examined the aftiant and I am fully convinced
I that that he/she has voluntarily executed his affidavit/sworn-statement and understood.the contents
thereof.
I
Inve!'ltigath1g Prosecutor
I
I
I
I
I
I
I
I
I
I
I
I
• Revised Manual for Prosecutors 133
I
FLOWCHART 1: PRELIMINARY INVESTIGATION
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I 134 Revised Manual for Prosecutors
---------------------
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COURT
•
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2. Before, during and after the arraignment, the trial prosecutor has well- defined duties to
I perform.
3. The filing of a petition for review affects the arraignment of the accu~ed in court.
I B.CONCEPTS
I 1. Arraignment - is the fonnal mode and manner of implementing the constitutional right
of the accused to be informed of the nature and cause of the accusation against him (Sec.
I 2. Plea - is the reply of the accused to the charge. In criminal prosecution, the accused has
to plead to the indictment, which he may do (1) by pleading to the jurisdiction, that is,
I alleging that the court has no jurisdiction to try him; (2) by a demurrer; or (3) by some
plea in bar, either a general plea or a specific plea (Osborn s Concise Law Dictionary, 151h
Ed. John Burke, p. 254).
I II. PROCEDURE
The trial prosecutor shall examine the Information vis-a-vis the resolution of the
I investigating prosecutor in order to make the necessary corrections or revisions and
to ensure that the Information is sufficient in form and substance.
I He shall ensure that the private offended party appears at the arraignment for
purposes of plea bargaining, determination of civil liability and other matters requir-
I ing his presence (Sec. I(/), Rule 116, Revised Rules on criminal procedure).
• Republic Act No. 4908, which requires that in criminal cases where the com-
I plainant is about to depart from the Philippines with no definite date ofretum,
I lturing the arraignment, the prosecutor seeks to give the accused the opportunity
at the first instance to know why a case has been filed against him. It is the solemn
I duty of the trial prosecutor to be present during the arraignment. He must be atten-
~e at all times during the arraignment so that he can ~nsure, among others, thhlthe
requirements of a valid arraignment are duly observed, the identity of the accused is
I ascertained and the Information being read to the accused is the same Information as
filed.
I The trial prosecutor shall prepare his witnesses for tdal. Government witnesses,
e.g. medico-legal officers, chemist:::, forensic experts, examiners etc. should, as
much as practicable, be presented in accordance with the logical and chronological
I sequence of thie technical aspects to be proved.
I 2. The trial prosecutor may dispense with the presentation of evidence when the accused
pleads guilty to a lesser offense which is not a capital offense~ the court directs
him to do so for purposes of determining the penalty to be imposed.
I
3. The trial prosecutor, with the consent of the offended party, may mo tu proprio agree
I to the offer of the accused to plead guilty to a lesser,. offense if the penalty impos-
able therefor is prision correccional (maximum of six [6) years) or less or a fine not
exceeding Phpl2,000.00. "
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I 138 Revised Manual for Prosecutors
I
4. When the penalty imposable for the offense charged is prision mayor (at least six
I [6] years and one (1] day or higher) or a fine exceeding Phpl2,000.00, the trial
prosecutor shall first submit his comment/recommendation to the Provincial or City
Prosecutor or to the Chief State Prosecutor, as the case may be, for approval. If the
I recommendation is approved in writing, the trial prosecutor, may, with the consent
of the offended party, agree to a plea of guilty to a lesser offense. For this purpose,
.the Chief State Prosecutor or the Provincial or City Prosecutor concerned shall act on
I the recommendation of the trial prosecutor within forty-eight (48) hours from receipt
thereof. In no case shall the subject plea to a lesser offense be allowed without the
written approval of the above respective heads of office.
I 5. In an cases, the penalty for the lesser offense to which the accused may be allowed to
piead guilty spali not be more than two (2) degrees lower than the imposable penalty
I fo!" the crime charged, notwithstanding the presence of mitigating circumstances.
\\~Th.e l~ser offense shall also be one that i nece · re ated o the offens.:__ charged srv~
I \' or the offense must belon to the ame clas die · der the Revised Penal
Code or the relevant spec_ial la~~ (DOJ Circular No. 55, dated 31July1990).
Howeve:, the plea of guilty to a lesser offense may net be allowed where it so ~
travenes logic and common sense as to be unconscionable, thereby resulting in injus-
I tice. Thus, where the offense charged is homicide, a plea of guilty ~o a lesser offense
of frustrated or attempted homicide may not be allowed, since the fact oi de:i.th cannot
I When the accused pleads guilty to a capital offense, the trial prosecutor must pres-
ent evidence to prove the guilt of the ac_cused and the precise degree of his culpability,
notwithstanding the waiver made by the accused during the pre-trial conference. This is
I mandatory.
I 1. In criminal cases, it is the duty of the accused, in addition to the other pleas authorized
by law, to plead whether he is guilty or not of the crime charged. In that way, and in that
I way only, can an issue be created upon which the trial shall proceed (Golez vs. CA. 237
SCRA 685).
2. The period of s~ension shall not exceed sixty ((jQ) days counted from the fil~g ()f the
I petiti~n with the r~ing office. (Sec. 11, par.(c), Rule 116, Rev. Rules on criminal
procedure). However, the court may still suspend the trial pending final resolution by the
I DOJ (Luman/aw v. Judge Eduardo Peralta, Jr., G. R. No. 164953, February 13, 2006).
I
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I Revised Manual for Prosecutors
I
PART VI. PRE-TRIAL
I
I I. CONCEPT
.A pre-trial is a process whereby the accused and the prosecutors in a criminal case
I work out, usually at the arraignment stage, a naturally satisfactory disposition of a
case subject to court approval in order to expedite the trial of the case (Blacks Law
I
Dictionary, 51h Ed., 1979, p.1037).
I The conduct of a pre-trial conference is mandato!)' in all criminal cases (Sec. 1,
1
par. 1, Rule 118, Revised Rules on Criminal Procedure; SC Circular No. 38-98).
I The pre-trial conference is scheduled after arraignment and within thirty (30)
I days from the date the court acquires jurisdiction over the person of the accused,
¥-less a shorter period is provided for in special l~s or «.irculars of the :;upreme
Court, order a pre-tnal conference (Sec. 1, par. 1, Rule 118, supra.).
I The pre-trial order binds the parties, limits the trial to matters not disposed of, and
controls the course of the action taken during the trial, unless modified by the court
I to prevent manifest injustice (Sec. 4, Rule 118, supra.).
I A. PLEA BARGAINING;
I This is a process where the accu:;ed usually pleads guilty to a lesser offense
or to only one or some of the counts of a multi-count indictment in return for a
lighter sentence than that for the graver charge (Blacks Law Dictionary, 511r Ed.
I 1979, p. 1037).
• Plea bargaining is not allowed under the R@gerous Q_mg$..1kt where the
I imposable penalty for the offense charged is reclusion perpetua to death.
I B. STIPULATION OF FACTS;
This refers to the agreement of the parties on some facts admitted, some facts
I covered by judicial notice (Sec. 1, Rule 129, supra.), judicial admissions (Sec. 2,
Rule 129, supra.), or on matters not otherwise disputed by them.
The trial prosecutor shall make sure that he appears at the pre-trial conference to
I avoid being sanctioned by the court. (Sec. 3, Rule 118, supra.)
I The prosecutor should know every [~ct_Cl!\4 detail of the case. This can be ac-
complished by interviewi_~g the complainant and other witnesses and after a thor-
The prosecutor should also place importance on the testimony of the expert
I witness. The knowledge that the prosecutor will gain from said witness will help
him determine the procedures undertaken in the examination of a subject or thing;
the scientific or technical terms applied, and the reason/s in arriving at a certain
I conclusion.
I
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Revised Manual for Prosecutors 141
I
I
I B. DURING THE PRE-TRIAL PROCESS
The prosecutor shall bear in mind that in the course of the trial, any stipula-
I tions/admissions entered into during the pre-trial will help him prove his case
beyond reasonable doubt and that every act or incident should be proved by the
testimony of qualified and competent witnesses.
I C. AFTER THE PRE-TRIAL CONFERENCE
I The trial prosecutor shall e!1sure that all agreements or admis.s.i.Q!l.s made or
entered during the pre-trial conference are reduced in writing and ~gned by the
I accused and counsel and approved by the court.
V. RELEVANT JURISPRUDENCE
I 1. The omission of the signature of the accused and his counsel, as mandatorily
required by the Rules, rendef3 the Stipulation of Facts inadmissible in evidence
I (Fule v. Court ofAppeals, 162 SCRA 446).
I 2. A proffer of evidence on the basis of the evidence exhibited by the accused during
the pre-trial is not sufficient. His acquittal on the basts thereof is a nullity for want
of due pro-:ess (People v. Judge Santiago, 174 SCRA J.d 3).
I
I
I
I
I
I
I
I
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I 142 Revised Manual for Prosecutors
.I PART VII. BAIL
I I. CONCEPTS
I A. PURPOSE OF BAIL
The purpose of bail is to entitle the accused to provisional liberty pending trial
I (Bravo, Jr. v. Borja, 134 SCRA 466 [1985]).
I ecutor to re(;ommend such amount ofhc:.il to the courts ofjustice as, in his opinion,
would er1sure the appearance of an accused person when so required by the court.
(DOJ Circular No. 6, series of 198!)
I C. BASIS OF BAIL
I 1. The basis for determining bail is the p~nalty prescribed by_~~ for the offtnse
charged and not the penalty actually imposed for the accused in view of the
attendant circumstances. (Bravo v. Borja, supra.} -
I 2. To allow bail on the basis of the penalty actually imposed would require a
I consideration not only of the evidence of the commission of the crime but also
evidence of the aggravating and mitigating circumstances. There would then
be a need for a complete trial, after which the judge would be just 1bout ready
I to render a decision in the case. Such procedure woukl d~feat the purpose
of bail, which is to entitle the accused to provisional liberty pending trial.
(Ibid.)
I D. WHEN BAIL IS NOT REQUIRED
I is unable to post the required cash or bail bond, except in the following cases:
I penalty;
7. when the accused has previously been pardoned by the municipal or city
I mayor for violations of municipal or city ordinance for at least twl.• times.
(Sec. 1, R. A. No. 6036)
I No bail shall also be required wheIJ. the !aw or the Rules issued by the Supreme
Court so provide.
I When a person has b~er. in c11sto<ly for a period equal to or more than the
possible maximum imprisonment of the offense charged to which he may be sen-
I tenced, he shall be released immediately witho11t prejudice to the continuation of
the trial thereof or the proceedings on appeal. In case the maximum penalty to
which the accused may be sentenced is destierro, he shall be released after thirty
I (30) days of preventive imprisonment.
A person in custody for a period equal to or more than the minimum of the
I principal penalty prescribed for the offense charged without application of the
Indeterminate Sentence Law or any modifying circumstance, shall be released on
I a reduced bail or on his own recognizance, at the discretion of the court. (Sec. 16,
Rule 114, supra.)
I
I
I 144 Revised Manual for Prosecutors
I The following are the instances when bail is a matter of right:
I e. That there is undue risk that he may commit another crime during the
pendency of the appeal.
I 3. If upon conviction, the Regional Trial Court imposes the penalty of imprisonment
in excess of six (6) years, but not exqeeding twenty (20) years, the accused shall
be denied bail or his bail shall be cancelled, upon a showing by the prosecution,
I with notice to the accused~ of any of the foregoing circumstances.
I 4. If none of the circumstances enumerated above exists, the grant of bail becomes
a matter of right. (Sec. 5, Rule 114, supra.)
The duty of the prosecutor to recommend bail entitles him to a notice every
I time bail is applied for, even if bail is a matter of right. (Lavides v. CA, GR No.
129670, Feb. 1, 2000)
I
Revised Manual for Prosecutors 145
I
I
When bail is a matter of discretion, it is the right of the prosecutor to be noti-
I fied so he could present evidence to prove that the evidence of guilt of the accused
is strong. Denial of such notice deprives the State of its right to be heard, thereby
making the bail proceedings void.
I
D. RIGHT TO BAIL IN INQUEST CASES
I A person lawfully arrested and detained but who has not yet been formally
charged in court can seek his provisional release through the filing of an applica-
I tion for bail or release on recognizance.
1. When the bail is a matte: of right, the prosecutor shall use the DOJ Bail Bond
I "Guide as his primary guide in recommending bail.
I
I 146 Revised Manual for Pro:;ecutors
I
1. financial ability of the respondent/accused to post bail
6. forfeiture of other bonds and pendency of other cases wherein the respondent/
7. ihe fact that respondent/accused under detention was a fugitive from justice
I when apprehended; and
8. other factors affecting the probability of the accused appearing at the trial.
I (Sec. 6, Rule 114, Revised Rules on Criminal Procedure; DOJ Circular No. 4,
series of 1996)·
I guideline.
147
I Revised Manual for Prosecutors
I
d. For crimes of reckless imprudence resulting in homicide arising from
I violation of the Land Transportation and Traffic Code, bail shall be
Php30,000.00 per deceased person.
I e. For violation of Batas Pambansa Blg. 22, bail shall be fifty per cent
(50%) of the amount of checks but should not be less than Php2,000.00
3. Where the imposable penalty is only a fine, bail shall be computed as fol-
I lows:
I 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.
I 4. Bail based on the maxirmau pf':nalty, multiplied by Phpl0,000.00 shall be
applied to the following offenses under tte following laws:
I a. Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of2002);
The prosecutor shall ensure that a hearing on the petition for bail is conducted
I by the judge as it is absolutely indispensable for the latter to properly determine
whether the prosecution's evidence is weak or strong on the issue of whether or
not to grant bail to an accused charged with a heinous crime where the imposable
I penalty is death, reclusion perpetua or life imprisonment. (Tabao v. Espina, 257
SCRA 298 {1996}). He must therefore be prepared for such a hearing.
I Whether the motion for bail of a defendant who is in custody for an offense
nunishable by reclusion perpetua, life imprisonment or death be resolved in a
I summary proceeding or in the course of a regular trial, the pwsecution must be
given an opportunity to present, within a reasonable time, all the evidence that_
it may desire to introduce before the court should resolve the motion for bail
I (People v. San Diego, 26 SCRA 522 [1968]).
I In case a petition for bail is filed by the accused and the court orders a con-
tinuous trial of the case, the public prosecutor shall be prepared to present his
I principal witnesses. Where there are several accused and one or two filed a
petition to bail, the trial prosecutor shall, before the presentation of his first wit-
ness, manifest in open court that the evidence to be presented in the hearing of
I
I Revised Manual for Prosecutors 149
I
the petition for bail shall be adopted as its evidence-in-chief, with a reservation
I The bail bond shall be deemed automatically cancele<i. upon acquittal of the
accused or dismissal of the case or execution of the final judgment of convic-
tion.
1. Whenever allowed pursuant to law or the Rules of Court, the court may release
I a person in custody on his own recognizance or that of a responsible person.
I 2. A hearing on the petition for the custody of the accused for purposes of his/
her release OTl recognizance is mandatory (Loyola v. Gaba, Jr., AM No. RTJ-
00-15-24, Jan. 26, 2000)
I 3. The prosecutor should see to it that hearing is conducted to ensure that the
requirements of Sec. 1 and 2 of R. A. No. 6036 are complied with. (Ibid.)
I B. REQUIREMENTS FOR THE GRANT OF RECOGNIZANCE UNDER RA
NO. 6036
I ,,.···
I that:
1. The accused comes within the coverage of Sec. 1 of RA 6036 and RA 9344
I (Juvenile Justice and Welfare Act);
2. The accused shall \ sign, in the presence of two (2) witnesses of good standing
I in the community, a sworn statement binding himself, pending final d e c i -
sion of his case, to report to the Clerk of Court hearing his case peiiodically
every two (2) weeks;
I .
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I 150 Revised Manual for Prosecutors
I
3. In case the Court opts to place the accused under the custody of the respon-
I sible person in the community, the prosecutor should see to it that:
a. such person under whose custody the accused is placed, shall execute his
I own affidavit stating his willingness to accept custody of the accused;
and
I b. the accused shall also include in his own affidavit mentioned above, a
statement that he binds himself to accept the responsibility of the
I 1. The Court should not even allow a motion for bail to be set for hearing unless it
has acquirediurisdiction over the person of the accuse_Q_~Q,-.th~--~~~~--h,yjt~~U!~g
I in Court. (Dinapol v. Baldonado, 225 SCRA 110)
2. In order that a person ca::11 invoke his right to bail, it is not necessary that he
I should wait until an Information is filed against him. From the moment that he
is placed under arrest, detention or restraint by the officers of the law, he can
I claim this guarantee of the Bill of Rights, and this right he retains unless and until
he is chargec:l with a capital offense and evidence of his guilt is strong.( Herras
Teehankee v. Rovira, 75 Phil. 634)
I
-
3. Where the accused was charged for murder without the benefit of a preliminary
investigation anci trial had already began over his objections, the accused remains
I ~ntitled to be released on bail as a matter of right pending the preliminary investi-
gation. Should the evidence already of record concerning the guilt of the accused
be, in the reasonable belief of the prosecutor, strong, the prosecutor may move in
I the trial court for cancellation of the bail. (Vide Tolentino v. Caano, Jr., 322 SCRA
559)
_If the investigating judge is satisfied that there is probable cause but did not issue
I the warrant of arrest contrary to the prosecutor/s belief that there is a need to place
the accused under custody, the speedy and adequate remedy of the prosecutor is to
immediately file the Information so that the Regional Trial Court judge may issue
I the warrant for the arrest of the accused. (Samu/de v. Salvani, Jr., 165 SCRA 724
[1988])
I If a warrant of arrest has been issued, the prosecutor may request the warrant
officer that he be furnished with the officer's return relative thereto. The prosec'tI-
tor shall, as far as practicable, coordinate with the witnesses from time to time to
I ascertain the whereabouts of the accused pending the latter's arrest.
5. A warrant of arrest does not become stale or functus oficio unlike a search warrant
which is valid only for ten days. A warrant o(arrest remains valid until arrest is
I effected or the warrant lifted. (Managan v. CF!, 189 SCRA 217)
I The object of a trial is to mete out justice, and to convict the guilty <ind
protect the innocent. Thus, the trial should be a search for the truth and not
a contest over technicalities and must be conducted under such rules as will
I protect the innocent (23 C. J. S. 274).
I shall be initiated or caused by the trial prosecutor except in instances where the
µostponement is occasioned by the absence of material witnesses or for other
causes beyond his control or not attributable to him.
I B. COVERAGE
I All criminal cases brought for trial before the Regional Trial Courts,
Metropolitan Trial Courts, Municipal Circuit Trial Courts, and Municipal Trial
Courts except those cases that are subject to the Rules on Summary Procedure.
I II. TRIALPREPARATION
I The prosecutor assigned to prosecute the case shall prepare the trial
guide. The trial guide, as accomplished, shall be made a permanent part of the
prosecution's records of the case. Its preparation shall be in accordance with
I DOJ Circular No. 47, s. 2000 (please refer to Appendix "F" on p. 311 of this
Manual).
C. OFFER OF EXHIBITS
I The trial prosecutor shall safely keep his documentary and other physical
evidence and prepare a@ereof in the order they have bPen marked as ex-
I hibits, identifying each by letter or number, describing it briefly, and stating its
specific purpose or purposes.
I D. DEFE~SE EVII>ENCE
I 1. Before reception of evidence for the defense stans, the trial prosecutor shall
ask from the adverse counsel the number of witnesses he intends to present
and the nature of their testimony.
I 2. If the names of the defense witnesses are disclosed, the trial prosecutor
shall elicit from reliable sources the whereabouts of these witnes5es, their
I moral character, background, reascns for testifying and relationship with
the accused, among other things, to enable him to have a clear view of the
defense of the accused.
I E. DISCHARGE OF ACCUSED TO BE STATE WITNESS
I When two or more persons are jointly charged with the commission of any
offense, the trial prosecutor, before resting his case, shall move for the discharge
I of one or more of the accused with their consent so that they may be witnesses
for the State. The motion shall indicate that:
l
I 1. There is absolute necessity for the testimony of the accused whose discharge
is requested (Sec. 17(a), Rule 119, Rules on Criminal Procedure).
1· 2. There is no other direct evidence available for the proper prosecution of the
offense committed, except the testimony of said accused, (Sec. 17[b], Rule
I 119, supra) as when he alone has knowledge of the crime, and not when his
testimony would simply corroborate or otherwise strengthen the evidence
in the hands of the prosecution (People v. Borja, et. al.106 Phil.188).
,
I
.
3. The testimony of said accused can be substa~tially eorroborated in material
points .
5. Said accused has not, at any time been convicted of any offense involving
I moral turpitude.
I 6981, otherwise known as "The Witness Protection, Security and Benefit Act"
if he complies with the other requirements of said Act.
I The trial prosecutor shall recommend the admission to the Witness Protection
Program of the following persons:
I • he or any member of his family within the second civil degree of con-
sanguinity or affinity is subjected to threats to his life or bodily injury or
I
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I Revised Manual for Prosecutors 155
I
2. Any person who has participated in the commission of a crime and desires
I to be a witness for the State, whenever the following circumstances are
present:
I laws;
I • he has not at any time been convicted of any crime involving moral
turpitude.
"{ll11wl9 The trial prosecutor shall vigorously oppo§.e any motion for postponement
I initiated by the accused, unless for valid and compelling reasons. He should
make of record his o~jections thereto, leaving to the court's discretion the dis-
position of the subject motions (Peopfa v. Borja, supra).
I I. DISCONTINUANCE OF PROCEEDINGS
J. PRESENTATION OF EVIDENCE
I The trial prosecutor is bound to complete the presentation of his evidence
within the trial dates assigned to him. After the lapse of said dates, he is deemed
I to have completed his evidence presentation. However, based on serious rea-
sons, he may file a verified motion to allow him a~~!!,QDal trial dates at the
discretion of the court. ·
I
I
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I 156 Revised-Manual for Prosecutors
I
III. PROCEDURE
I Upon receipt of the notice of trial, the prosecutor shall review the record
of the case for trial and complete his preparation therefor bearing in mind that
trial, once commenced, may continue from day to day until terminated. He may,
I -
however, move for postponement for a reasonable period of time for guud..c.a.~se
(Sec. 2, par. 1, Rule ti 9, supra.).
.
I hearing shall be- granted except on the ground of illness on the part of the
accused or other grounds beyond the control of the accused.
I 3. Speedy Trial of Child Abuse cases - The trial of child abuse cases shall take
precedence over all other cases before the courts, except election and habeas
corpus cases. The trial in said cases shall commence within three (3) days
I from the date the accused is arraigned and no postponement of the initial
hearing shall be granted except on account of the illness of the accused or
other grounds beyond his control (Sec. 21, Rules and Regulations on the
I Reporting and Investigation of Child Abuse Cases issued pursuant to Sec.
32 of R. A. No. 7610, otherwise known i'y.s "the Child Abuse Act").
5. Under Administrative Code No. 104-96 of the Supreme Court, the cases
I of kidnapping and/or kidnapping for ransom, robbery in band, robbery
committed against a banking or financial institution, violation of the Anti-
Carnapping Act of 1972 as amended, and Other Heinous Crimes (RA 7659)
I committed within the respective territorial jurisdiction of the courts shall
I
Revised Manual for Prosecutors 157
I
I
undergo mandatory continuous trial and shall be terminated within sixty
I (60) days from commencement of the trial.
B. ORDER OF TRIAL
I
Trial shall proceed in the following order pursuant to Sec. 11, Rule119 of
1. The prosecution shall present evidence to prove the charge and, in the proper
I case, the civil -liability.
2. The accused may present evidence to prove his defense, ?n<l damages, if
I any, arising from the issuance of any pro·.risional remedy in the case.
3. The parties may then respectively IJresent rebutting evidence only, wiless
I the court, in furtherance of justice, permits them to present additional evi-
dence bearing upon the main issue.
I 4. Upon admission of the evidence, the case shall be deemed submitted for
decision wiless the court directs the parties to argue orally or to submit
I memoranda.
5. However, when the accused admits the act or omission charged in the
I Comp!aint or Information but interposes a lawful defense, the order of trial
may be modified accordingly.
I C. PRESENTATION OF WITNESSES
I
I 158 Revised Manual for Prosecutors
I
D. CONDITIONAL EXAMINATION OF WITNESS FOR THE
I PROSECUTION
The trial prosecutor shall move for the conditional examination of a pros-
I ecution witness who is too sick or infirm to appear at the trial or has to leave the
Philippines with no definite date of returning. Such examination shall be done
in the presence of the accused or in his absence after reasonable notice to attend
I the examination has been served on him, shall be conducted in the same manp.er
as an examination at the trial. Failure or refusal on the part of the accused to
I attend the examination after notice herein before provided shall be considered
a waiver (Sec. 15, Rule 119, Supra.).
The prosecutor shall endeavor to secure well in advance all available in-
·I fom1ativn about a defense witness in order to prepare for an effective cross-
examination. Where the testimony of a defense witness bears no effect on the
evidence of the prosecution, a cross-examination need not be conducted.
I F. REBUTTAL EVIDENCE
I The presentacion and nature of rebuttal evidence will depend on the effect
which the defcriSe evidence may have caused on the prosec~ti~~-,; evidence-in-
I chief. The recall-of a witness who already testified during the evidence-in-chief
presentation merely to refute what a defense witness may have stated during his
defense testimony is not generally rebuttal evidence. Where there is nothing to
I refote, rebuttal evidence is unnecessary.
I physical and real evidence, which evidence shall be attached to the records of
the case.
I
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I Revised Manual for Prosecutors 159
I
III. RELEVANT JURISPRUDENCE
I 1. The general rule is that motions for postponement are granted only upon meritori-
I ous ground and no party has the right to assume that his motion will be granted.
(De Guia v. Guerrero, Jr., 234 SCRA 625 [1994]);
I "X- 2. Under Sec. 9, Rule 119 of the Revised Rules on Criminal Procedure, the petition-
ers have the burden of proving the factual basis of their motions for the dismissal
of the Informations on the ground of a denial of their right to a speedy trial and to
I a speedy disposition of the cases against them. They were burdened to prove that
such delay caused by the p:osecutor was vexatious, capricious or whimsical. On
the other hand, the prosecutor was burdened to present evidence to establish that
I the delay in the submission of his report on reinvestigation of the cases was rea··
sonably attributed to the ordinary process of justice, and that the accused suffered
no serious prejudice beyond that which ensued after an inevitable an · ary
I delay. orpuz v. The San zgan ayan, 442 SCRA 29 2 4 ; Lumanlaw v. Judge •
&Jgardo Peralta, Jr., G. R. No. 164953, February 13, 2006);
I 3. The trial of an accessory can proceed without awaiting the result of the separate
charge against the principal. The corresponding responsibiliti~s of the principal
I accomplice and accessory are distinct from each other. As long as the SQmmis-
sion of the offense can be duly estzblisbed in evidence, the determination of the
lIB"bility of the accomplice or accessory can proceed independently of that of the
I principal. (Vino v. People, 178 SCRA 626.);
I it is the duty o~rosecution to repeat and produce all its evidence- at each
and every trial, ~s it had been agreed by the parties that the evidence for the
prosecution would not have to be repeated at the second trial and all the accused
I had been present during the presentation of the evidence for the prosecution and
their attorneys had had the <!EJ?Ortuni!Y to cross-examine the witnesses for the
prosecution who had testified. (People v. Carpio, 68 Phil. 490); l
I 5. The rule therefore, relative to the right of the government prosecutor to utilize
a person who has participated in the commission of a crime as a witness for the
I prosecution is as follows: .·
I 9, Rule 119);
c. there is nothing in the rule from which it can be inferred that before a person
d. the failure to follow the requirements of the rule relative to the use of a per-
I son, himself particeps criminis, as a government witness does not violate the
due process clause of the constitution, nor render his testimony ineffectual if
otherwise competent and admissible. (People v. Binsol, JOO Phil. 713.);
I
6. The discharge contemplated by the rule is one effected or which can be effected
I at any stage of the proceedings, from the filing ofilie Information to the time tl1e
defense starts to offer any evidence. (People v. Aninon, 158 SCRA 701);
I 7. The mere fact that the witness sought to be discharged had pleaded guilty to the
crime charged does not violate the rule that the discharged defendant must not
"appear to be the most guilty". And even if the witness should lack some of the
I qualifications enumerated by Sec. 17, Rule 119, his testimony will not, for that
reason alone, bt: Jiscarde~ or disregarded. (People v. De Leon, et. al. 108 Phil.
800 [1960];
I
8. The ground underlying the rule is not to let a crime that has been committed go
I ur.punished; so an accused who is not the most guilty is allowed to testify against
the most guilty, in order to achieve the greater purpose of securing the conviction
of the more or most guilty and the greatest number among the accused permitted
I to be convicted for the offense committed. (People v.Bayona, et. al., 108 Phil.
104 [1960)). All the perpetrators of the offense bound in conspiracy are equally
guilty. (People v. Borja. 147 SCRA 169 [1987));
I 9. This is an indispensable requirement because iit is a notorious fact in human
nature that a culprit who confesses to a crime, is likely to put the blame on oth-
I ers rather than himself. Thus, even though a court may get the statement of a
discharged accused that other persons were engaged in the crime it is unsafe to
I
i
I l.
I compJaint or information;
,
3. the venue of the preliminary investigation;
I 4. the specific material dates showing that it was filed on time; ...
I 5. a clear and concise statement of the facts, the assignment of errors, and the
legal basis of the appeal/petition for review;
I Evidence submitted -· - .
submitted by both parties in the preliminary investigation or re-investigation.
- - shall not be admitted. If submit-
-for the first time on appeal
ted, the reviewing prosecutor shall disregard it. A copy of the motion to defer
proceedings shall likewise be attached to the appeal/pet1tmn when an information
I hasatready been filed in court. '
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I When the accused is arraigned during th~dency of the appeal, the prosecu-
tor concerned shall likewise immediateiy ~fc~he Secretary of Justice/Chief
State Prosecutor/Regional State Prosecutor orSuCh ai1 l:lrraignment
I I. APPELLEE'S COMMENT
I tended for delay, or when the issues raised there.in are too unsubstantial to require
consideration. If an Information has been filed in court, the appeal/petition for
review shall not be given due course if the accused has already been arraigned.
I K. WITHDRAWALOFTHEAPPEAL/PETITION FORREVIEW
I The appeal/petition for review may be wit}J.d.rawn }t_ any time before it is
finally resolved, in which case the questioned_ resolution shall stand as if no ap-
peal/petition has been taken.
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I 164 Revised Manual for Prosecutors
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L. MOTION FOR REINVESTIGATION PENDING APPEAL
I At any time after the filing of the appeal/petition and before its resolution,
the appellant/petitioner may file a motion for reinvestigation before the Office
of the Secretary of Justice/ Office of the Chief State Prosecutor/ Office of the
I Regional State Prosecutor on the ground that new and material evidence has
been newly discovered which appellant/petitioner could not, with reasonable
If the case is pending appeal and an Information has been filed in court,
I the appellant shall inform the court of the filing .of a motion for reinvesti-
gation with the Office of the Secretary/Regional State Prosecutor and shall
ask the court to defer proceedings. The reinvestigation of the case shall be
I conducted by the prosecution office from which the appeal was taken. (see
Marcelo vs. C.A., 235 SCRA 39 [1994}; Roberts vs. C.A., 254 SCRA 207
[1996}; Dimatulac vs. Vilon, 297 SCRA 679 [1998]; Solar Entertainment vs.
I How, 338 SCRA 511 [2000]; Community Rural Bank of Guimba vs. Talavera,
455 SCRA 34 [2005})
I The Office of the Secretary or the Office of the Regional State Prosecutor,
as the case may be, shall then issue €<sol~ directing the reinvestigu.tion
I of the case, if still legally feasible. Wh-en reinvestigation is granted, it shall
take place in the Qffi=c-:e~o.....f=th=e:.....:P:....:r..::os::.:e:.:c=utor from which the petition was taken.
I following grounds:
1. that the petition was filed beyond the period prescribed in Sec. C hereof;
I 2. that the offense has prescribed;
4. that the procedure or requirements herein prescrib~d have not been complied
I with;
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Revised Manual for Prosecutors 165
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5. that the questioned resolution is interlocutory in nature, except when it sus-
I pends the proceedings based on the alleged existence of prejudicial question;
I 6. that the accused had already been arraigned when the appeal/petition for re-
view was taken, or was arraigned during the pendency of the appeal/petition;
or,
I The aggrieved party may file with the offices conc~med, a motion for recon-
sideration within a non-extendible period of fifteen (15) days from receipt of the
I 1. furnish the adverse party or his counsel and the prosecution offices concerned
with copies thereof;
I 2. submit proof of such :service; and
The· appeal/petition for review shall not prevent the filing of the Information
I in court unless the Secr~tary of Justice/ Chief State Prosecutor/Regional State
Prosecutor as the case,tnay be, directs otherwise.
i
I Pending the resolution of the appeal/petition for review, the accused may
move before the court for the suspension of the proceedings, to hold in abeyance
I based upon a complaint where he is no_t convinced that the evidence would warrant
the filing of the action in court. As he has the power of supervision and control
over prosecuting officers, the Secretary of Justice has the ultimate power to decide
I which, as between two co!1flicting theories of the complainant and the respondents,
should be believed (Vda. De Jacob v. Puno, 131SCRA148 {1984]).
1. 3. The DOJ Order aliows the filing of an Information in court after the consumma-
tion of the preliminary investigation even ifthe accused can still exercise the right
I 4. There is nothing ia Crespo v. Mogul, 151 SCRA 462 [1987] which bars the DOJ
from taking cognizance of an appeal, by way of a petition for review , by an ac-
cused in a criminal case from an unfavorable ruling of the investigating prosecutor.
I It merely advised the DOJ to, "as far as practicable, refrain from entertaining a
petition for review or appeal from the action of the prosecutor, when the Complaint
or Information has already been filed in Court (Marcelo v. Court of Appeals, 235
I SCRA 39 {1994]). Reiterated in the case of Community Rural Bank of Guimha v.
Talavera, 455 SCRA 34 [2005]).
I 5. Petitioners were not barred from appealing from the resolution holding that only
homicide was committed, considering that their complaint was for murder. By
I holding that only homicide was committed, the Provincial prosecutor's Office of
Pampanga effectively "dismissed" the complaint for murder. To rule otherwise
I
would be to forever bar redress of a valid grievance, especially where the investi-
gating prosecutor demonstrated what unquestionably appeared to be unmitigated
bias in favor of the accused (Dimatulac v. Villon, 297 SCRA 679).
.To ensure that those accused of criminal offenses will not evade prosecution and
I punishment by leaving abroad during the penciency of criminal proceedings, trial
prosecutors are directed, pursuant to DOJ Circular No. 38 dated 15 August 1990, to
move for the issuance by the court of a Hold Departure Order (HDO) (please refer to
I NPS Sample Format "C" onp. 294 of this Manual) against the accused and for the
Bureau of Immigration to implement the same in the following cases:
2. Crimes against public order (e.g. rebellion, sedition, etc) defined and penalized
I in the Revised Penal Code;
6. Bank frauds and frauds against public treasury and other crimes involving eco-
I nomic sabotage.
I NPS Sample Format "D-2" on p. 297 of this Manual), make appropriate representa-
tions with the Department of Foreign Affairs for the cancellation of the accused's
passport and other travel documents so as to make the accused an undocumented alien
I in the host country and thereby made subject to deportation and is being considered
as a fugitive from justice.
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III. HANDLING OF CRIMINAL COMPLAINTS FILED AGAINST PUBLIC
I OFFICERS AND EMPLOYEES
In addition to DOJ Circular No. 26 dated July 3, 2008 (please refer to Appendix
I "G" onp. 313 of this Manual), the following guidelines shall also be observed in the
investigation and prosecution of cases against public officers and employees pursuant
to OMB-DOJ Circular No. 95-001, series of 1995, to wit:
I 1. Preliminary investigation and prosecution of offenses committed by public
2. Unless the Ombudsman, under its constitutional mandate, finds reason to believe
I otherwise, offenses which are not in relation to office anC: cognizable by the rngu-
lar courts shall be investigated and prosecuted by the Office of the Provincia1/City
Prosecutor which shall rule thereon with finality.
I 3. The preparation of the Information shall be the responsibility of the Investigating
I FOR PROBATION
The court shall notify the trial prosecutor of the filihg of an application for the
I grant of probation filed by a defendant after conviction and sentencing but before
service of sentence (Sec. 4, PD 968, as amended by PD 1527).
The trial prosecutor shall submit his comment to the application for proba-
I tion within ten ( 10) days from receipt of the notification of the filing of said
application (Sec. 4, PD 968, as amended, supra.).
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I B. RELEASE OF APPLICANT FOR PROBATION
Pending resolution of the application for probation, the accused may be re-
I leased on temporary liberty under his bail filed in the criminal case. In case no
bail was filed or if the defendant is not capable of filing one, the court may release
· the:_defendant on recognizance to the custody of a responsible member of the
I community who shall guarantee his appearance whenever ·required by the court
(Sec. 5, ibid.).
I The trial prosecutor shall object to the application for the grant of :;Jrobation
in the following instances:
I 1. if the defendi111t fails to comply with any of tii~ following criteria for the grant
of probation:
I b. there is undue risk that during the period _?f probation, the offender will
commit another crime; or
I a. sentenced to more than six (6) years and one (1) day;
I b. convicted of an offense against the security of the state under the Revised
Penal Code, to wit:
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I 170 Revised Manual for Prosecutors
I 4. Art. 117 (Espionage);
d. who has once been on probation under Presidential Decree No. 968 (Sec.
I 9, PD 968).
In ca.se one who is placed on probation is arrested for a serious violation of the
I conditions of probation and brought before the court for a hearing of the violation
charged, the prosecutor shall represent the State in said hearing if the revocation
is contested(Sec. 15, ibid).
I The defendant may be admitted to bail pending such hearing. In such a case,
the provisions regarding release on bail of persons charged with a crime shall be
I applicable to the defendant (Sec 15, ibid, as amended by PD 1257)
i
I V. PROCEDURE IN CASES INVOLVING CHILDREN
A. INQUEST PROCEEDINGS
I 1. If the Child is the Complainant
I The presence of the child during the inquest proceedings shall not be re-
quired unless his statement is found wanting in material or substantial details
and it is considered necessary to have him further examined, in which event
I the inquest prosecutor shall:
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~ Revised Manual for Prosecutors 171
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a. give the case first priority;
I b. have the proceedings conducted as far as practicable in the Provincial/
City Prosecutor's Office during regular office hours;
I c. conduct the examination of the child in the presence and with the as-
sistance of his/her parents, guardian, custodian and/or authorized repre-
I sentative;
I of:
The inquest prosecutor shall determine the age of the child on the basis
/.-·
I a. documentary proof such as, but not limited to, birth certificates, baptismal
certificates, school record, dental chart, etc;
I dismissed immediately.
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I 172 Revised Manual for Prosecutors
I
If the child is over fifteen (15) but under eighteen (18) years of age,
I the inquest prosecutor shall determine whether or not the former acted with
discernment in committing the act complained of and ifhe finds that the child
did not act with discernment, he shall:
I 1. immediately prepare a written report of his findings, recommending
I therein the dismissal of the case and the immediate release of the child
from custody;
b. see to it that the child is accompanied and assisted by the parents, guard-
I ian, custodian and/or authorized representative;
d. make sure that the child is not co-mingled with Adult detainees in one and
I the same detention cell;
e. take care that the child is not subjected to any form of coercion, harassment
I or undue influence from any party wielding parental, custodial, official,
moral, social or financial ascendancy over the chil<l;
I f. in no case employ any form of deceit or false promis·es during the investi-
gation process; and,
-
I
g. ensure the case/proceedings against undue and sensationalized publicity.
I tive.
B. PRELIMINARY INVESTIGATIONS
I The prosecutor shall conduct a preliminary investigation only in the follow-
ing instances:
I • When the child does not qualify for diversion;
.
I • When the child, the parent or guardian does not agree to diversion;
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• When diversion is not ap!_Jropriate for the child, after considering the assess-
I ment and recominendation of the s0cial worker; and
I • When the child fails to comply with the terms and conditions of the contract
of diversion. (Sec. 26, chapter 2, RA 9344)
I Upon serving the subpoena and the affidavit of complaint, the prosecutor
shall notify the Public Attorneys Office (PAO) of such service as well as personal
information and place of detention of the child (Sec. 33, chapter 3, RA 9344).
I 1. If the child is the victim
a. conduct the examination of the chilci in the presence and with the
I assistance_9fhis/her parent/s, guardian, custodian and/or authorized
reqresentative or social worker;
I undue influence from any party, particularly in cases where the of-
fender is the parent/s guardian, or custodian, or one who has official,
moral, social or financial ascendancy over the child; and,
I d.
~
make sure that the name, address, age and date of birth of the child,
as well as the name and address of the parent/s, guardian or custo-
I dian are duly reflected in the record of the case.
I shall:
I social or financial ascendancy over the child does not subject the
latter to any fon.n of coercion, harassment or undue influence;
I e. make sure that the name, address, age and date of birth of the child,
as well as the name and address of the parent/s, guardian or custo-
dian are duly reflected in the record of the case.
I Confidentiality of a11 records should always be maintained.
I The child shall be placed under the protective custody of the Social Welfare
and Development or other accredired NGOs pending inquest and/or preliminary
investigation proceedings.
I D. TERMINATION OF INQUEST/PRELIMINARY INVESTIGATION
'
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their parent/s, guardian, custodian or authorized representative.
The procedures for conducting the inquest proceedings and preliminary inves-
I tigations prescribed in this Manual shall be applied in cases involving trafficking
in persons and violence against women and their children. In addition, the follow-
I ing performance standards for prosecution services developed by the DOJ and the
NCRFW shall be observed:
I A. PRELIMINARY INVESTIGATION
The prosecutor shall make sure that the complainant is informed of the
I rights under RA 9208 and RA 9262, the legal procedures on preliminary in-
vestigation, the crimes charged and the benefits under the witness protection
program for trafficking cases and victims' compensation program.
I
I GUIDELINES:
1. The complainant is informed that she can request for a female pr0s-
I • empathic
• committed to observing and
safeguarding confidentiality
I 4. The prosecutor should be open and encouraging in asking questions.
8. The facilities used during the interview should be safe to ensure con-
I fidentiality:
I 9. The prosecutor shall not allow the media to gain ac•::ess to any infor-
mation regarding the victim/ survivor. (An adult victim, however,
may choose to speak with the media, preferably with the assistance of
I her counsel.) The prosecutor does not disdose the name and personal
drcumstances of both parties or any other information that might
I reyeal their identity to the media or the public, or take any action that
mig!:it compromise their privacy.
I The prosecutor, as far as practicable, should check the conduct of the sur-
veillance needed to support the filing of a case (police/NB I agencies/investiga-
tors conduct the necessary surveillance for sex trafficking cases. e.g. in massage
I parlors, bar strips, modeling studios, escort services).
3. As far as practicable, the trial of the case should be handled by one and
B. COVERAGE
I Only petitions for certiorari under Rule 65 of the Revised Rules of Court
I which are to be filed before the Supreme Court or the Court of Appeals may be
acted upon by the Office of the Chief State Prosecutor.
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I C. PERIOD TO :FILE THE PETITION
The petition shall be filed with the Supreme Court or the Court of Appeals not
I later than sixty (60) day~ from notice of the judgment order/resolution. In case
a motion for reconsidaation or new trial is timely filed, whether such motion
is required or not, the sixty (60) day period shall be counted from notice of the
I denial of said motions.
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I 178 Revis~d Manual for Prosecutors
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D. ACTION TO BE TAKEN BY THE TRIAL PROSECUTOR
I 1. Draft a petition clearly stating the facts of the case, and the law and juris-
prudence applicable in support thereof. The petition shall contain a verified
I statement of the date when notice of the judgment, order or resolution subject
thereof was received, when a motion for reconsideration, if any, was filed and ·
2. Forward the draft petition to the Office of the Chief State Prosecutor for
I evaluation within fifteen (15} days from receipt of the assailed decision or
order/judgment, with a request that the same be endorsed to the Office of the
Solicitor General.
I E. ACTION OF THE CHIEF STATE PROSECUTOR
I 1. If the Chief State Prosecutor finds no merit in the request to file a petition for
certiorari, he denies the request and informs the head of office of the request-
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I Revised Manual for Prosecutors 179
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2. If he finds merit in the petition, he shall endorse the draft petition together
I with the attachments within ten (10) days from receipt of the draft petition, to
the Office of the Solicitor General for appropriate action.
1. EVIDENCE REQUIRED
I a. For the first and second modes ofviolat\on of Sec. 77 (Cutting, gathering •.
!
and/or collecting timber or other forest products without license), the fol-
I lowing pieces of evidence are ·crucial:
I map or reference to prove that the area is inside forest land or grazing
land;
I • Inventory and tally sheet, stand and stock table of timber or forest
products destroyed and the correspo~ding forest charges to be used as
basis in imposing penalty; ··
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I 180 Revised Manual for Prosecutors
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I • Damaged forest land due to indiscriminate setting on fire of forest
land by the violator;
• Fallen trees, log~, ~umber, f.itches and other woody parts of dar11aged
I vegetation; ar-'d
I • Survey report and sketch plan of the surveyed area by the investigat-
ing officer;
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I Revised Manual for Prosecutors 181
I
• Land Classification Map showing that the area is classified as
I forest land
e. For violation of Sec. 88 (Sale of Wood Products), the following are impor-
I tant:
I •
•
The logs, lumber or forest products subject of the sale;
Scale Report;
• Sales Invoice
I 2. POINTERS
I Penal Code. Thus, applymg Article 10 of the Revised Penal Code and the
ruling of the Supreme Court in PP vs. Martin S. Simon (GR No. 93028, July
29, 1994; 234 SCRA 555), such circumstance of recidivism or reiteracion
I should be alleged.
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I 1. EVIDENCE REQUIRED
I 1. EVIDENCE REQUIRED
I •
the tools, equipment and conveyance used in the commission of the of-
fense; and
Other supporting papers/evidences as the court may require.
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Revised Manual for Prosecutors 183
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I.
2. POINTERS
I a. For violation of Sec. 102 (Illegal Exploration), it should be made clear
I in a single occasion, Sec. 105 should absorb the acts described in the two
other Sections.
1. POINTER
I •
area; and
Certification from the DENR that the place where the wastes were
dumped is a critical habitat in accordance with tlke NIPAS Act, or
I designated as such in accordance with Sec. 25 of RA 914 7.
d. Trading of wildlife:
I • Certification from the DENR as to the classification of the concerned
wildlife; and
I • Certification from the DENR that no permit was given to violator for
the concerned activity.
I e. Transporting of wildlife:
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I Revised Marual for Prosecutors 185
I
• Certification from the DENR as to the classification of the concerned
I •
wildlife; and
Certification from the DENR that no corresponding permit was given
to the violator for the concerned activity.
I
f. Maltreating and/or inflicting other injuries not covered by the preceding
I paragraph:
I • Certification froin the DENR or PAWB that the place where the con-
cerned act is done is within a critical habitat in accordance with RA
• Certification from the DENR or PAWB foat the place where the con-
I cerned act is done is within a critical habitat in a~cordance with RA
7586 or the NIPAS Act or designated as such in accordance with Sec.
23 of RA 9147.
I L Introduction, re-introduction, or re-stocking of wildlife resources:
I • Certification from the DENR that no permit was given to the violator
for the concerned activity.
I J. Collecting, hunting, or possessing wildlife, their by-products and deriva-
tives: }
I • Certification from the DENR as to the classification of the concerned
wildlife; and
I • Certification from DENR that no permit was given to the violator for
the concerned activity.
I k. Gathering or destroying of active nests, nest trees, host plants, and the
like:
I •
•
Chain saw;
Deed of Sale, Sales Invoice, Official Receipt, Deed of Assignment,
I •
and other pertinent documents;
Invalid or expired Ce1 ti£.cate of Registration;
• Affidavit of the apprehending/investigating officer.
I b. To establish the offense of unlawful importation or manufacturing of chain
saw:
I • Chain saw;
• Import documents;
I ., Certification from the DENR Registering Office that the importer or
manufacturer has no permit;
I •
•
Affidavit of apprehending/investigating officer.
Prosecutors should be made aware that there is also an administrative
adjudication aspect, followi:::ig DAO No. 97-32.
I I. CLEAN WATERACT (RA9275)
I 1. EVIDENCE REQUIRED
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Revised Manual for Prosecutors 187
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• Proof of service of Notices of Violation (NOVs) and/or Invitations
I •
for Technical Conference; and
Photographs and other documents that would establish the accuracy
and veracity of the statements made in the report.
I 2. POINTERS
A. GENER.\L RULES
I 1. Any proceeding relating to money laundering and the unlawful activity shall
2. Trial for the money laundering offense shall proceed in accordance with the
I Revised Rules on Criminal Procedure.
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I 188 Revised Manual for Prosecutors
I
B. DUTIES OF THE PROSECUTOR
I 1. Upon receipt of the complaint filed by the AMLC pursuant to Sec. 7 (4) of the
AMLA, the prosecutor shall conduct the requisite preliminary investigation;
I 2. When there is a finding of probable cause to engender a well-founded belief
that a money laundering offense has been committed, recommend for the fil-
I ing of an Information before the Regional Trial Court;
I 3. Once the filing of an Information in court has been approved by the head of
office, prepare for the trial for the money laundering offense in close coordi-
nation with the AMLC official who file the complaint.
I 4. During the trial of the case, prove by evidence beyond reasonable doubt all
elements of every money laundering offense under Sec. 4 of the AMLA,
I including the element of knowledge that the monetary instrum~nt or prop-
erty represents, involves or relates to the proceeds of any unlawful activity.
(Rule 6.6. of the Revised Implementing Rules and Regulations of RA 9160 as
I amended by RA 9194).
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I Revi~ed Manual for Prosecutors 189
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Revised Manual for Prosecutors
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Special Section on
I Prosecuting Human Rights Violations
and Providing Available Remedies Therefor
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I Revised Manual for Prosecutors 191
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Special Section on
I Prosecuting Human Rights Violations
and Providing Available Remedies Therefor.
I
I. IN GENERAL
I A. STRUCTURE
I The first part of this section will identify the particular human rights violation
in focus, then proceed to outline how the Public Prosecutor can deal with it using
available remedies in substantive and procedural criminal law.
I The second part of this section will identify generic remedies available under
substantive law that may be resorted to and employed in the process of seeking
I redress to human rights violations. However, since Jhese provisions are few and
perform only a !argely compensatory function, we have to tum to ~r..e larger fi~ld
of substantive and procedural criminal law to be able to folly address the c:onse-
I quences of the violation and provide the victim with the full coterie of remedie3
designed to vindicate the rights violated.
I B. SUMMATIVE CHECKLIST
I J. STEP ONE. How do you know that a human rights violation has beeti com-.
mitted?
I tion thereof has been committed. Some of the defining character of human
rights violations are:
I person who merely intends to injure and a person who takes advantage
of the fragility and limits of what the human body can take in order to
totally subdue the will of another~
I •
•
They involve an infliction ofintense psychological anguish, emotional
suffering, and moral helplessness.
I For example, families of victims of enforr,ed disappearance had to
contend with the lifelong agony of not knowing what became of their
I loved ones, and not even having the opportunity to give them a decent
burial. This ;Gnd of suffering adcs an entirely new layer of evil to
'• penalty in the criminal justice system, !Jut everyone will agree that
nobody deserves to die in an excruciatingly painful tlk1nner; and the
relatives of the dead should have the opportunity to bury their dead
with dignity. When a wrongful act deprives a human person of what is
due him/ her according to the minimum standards inherently ingrained
in everyone's sense of humanity, then there is an assault against fun-
damental human rights.
I •
death)
Psychiatric and psychological evaluations (for mental, emotional, and
psychological trauma on the part of the victim and his/ her relatives)
I • Affidavits of witnesses (focusing on the circumstances that would qualify
an act as a human rights violation, as discussed above)
I • avail of the right of visitation of, and conference with, counsel that
is granted to every detainee or person under custodial investigation.
I Torture or o!her forms of persecution can speedily be discovered and
addressed through this means. ·
• utilize inquest lproceedings so that violations of human rights can
I •
already be disclosed early on.
bring to the attention of the court actual knowledge, or well-founded
suspicion of torture or other forms of human rights violations. The
I courts, under Administrative Matter No. MTJ 90-4001 have the posi-
tive duty to "proc~ed with caution" during trial whenever allegations
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I 194 Revised Manual for Prosecutors
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1. open to public access, or
I 2. privileged, or
3. withheld from the public by reason of national security, etc.
I 1. proper parties,
2. required allegations, and
3. remedies prayed for
I If information-gathering discloses the whereabouts of a person, or if
such is already known at the outset, or if the source of the threat to
I one's iife or liberty has been clearly determined, then an aggrieved
party can:
I •
can be justified through a Writ of Habeas Corpus
Compel the State to extend ::iuch prote1,tion as may be adequate to
5afeguard his/ her rights through a Writ of Amparo
I b. THE HUMAN RIGHTS VIOLATION HAS ALREADY BEEN
PERPETRATED.
I For example:
I •
~ in the case of a person who has already been subjected to torture; or
in the case of a person who was involuntarily disappeared and subse-
I •
quently found to have been killed through "salvaging"; or
in the case of persons who were forced to leave their homes en masse
through intimidation and violence
I
I
In these cases, the paramount remedy is to seek redress for the violation
that has already been committed. This can be done through:
I For example:
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I 196 Revised Manual for Prosecutors
I For example:
I •
time.
If torture is conducted with the victim's hands and feet tied (or
where the victim is physically restrained in any manner), or where
I the victim was forcibly drugged, and if such torture is condu!;ted by
numerous people in succession or simultaneously, would aggravate
the felony by "taking advantage of superior strength" and "with
I •
means employed to weaken the defense".
The prevalent practice of"salvagings" conducted in a swift manner,
under circumstances where the victim will be caught unaware and
I •
unable to defen<l him/ herself, is evidentiary of "alevosia".
Murder involving physicai and psychological torture (e.g., forcing
I the victim to ingest human excreta, torturing the victim while naked,
electrocution of the genitalia) can rightfully be classified as aggra-
vated by "ignom1ny" and/ or "cruelty".
I The ideal, of course, is for "violation of human rights" to somehow find
its way to the exclusive list of aggravating circumstances in the Revised
I Penal Code. However, while such proposition still awaits legislative adop-
tion, it has been shown that there are ways by which the prosecutor can
interject human rights violations in the consideration of the nature of the
I felony and the gravity of the imposable penalty.
}
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Revised Manual for Prosecutors 197
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Consider the following:
I "Thatonoraboutthe 8th day ofApril, 2008, in the Municipality
of Donsol, Sorsogon, Philippines, and within the jurisdic-
I tion of this Honorable Court, the said defendants, JOSEFO
MERCADO and DEIMOS PERICLES, and CRISPULO
WAN DE DIOS, conspiring, confederating and mutually
I aiding each other, did then and there willfully, unlawfully
and feloniously tortured and killed VICENTE TONGOL
"CONTRARY TO LAW.
I "Donsol, Sorsogon, Philippines, April 8, 2008."
I While the above Infonnation recites all the ess~ntial elements of murder, it
also went further to allege other facts that clearly paint the accurate picture
I 0£ the felony - that is, through the violation of the fundamental human right
not to be subjected to t0rture and other cm.el, inhuman, and degrading treat-
ment. In thos~ cases where the judge is given enough latitude to pronounce
I the proper penalty to be imposed (as in the case of the application of the
Indeterminate Sentence Law), these facts can and should be given adequate
consideration.
I
I II. PROSECUTING CASES OF TORTURE
A. BACKGROUND
I Definition
/IL Sec. 12, pars. 2, 3 and 4; Art. III, Sec. 19, pars. 1 and£):
I
I 198 ReviseCl Manual for Prosecutors
I
B. DEALING WITH TORTURE UNDER SUBSTANTIVE LAW
I 1. Unconstitutionality
I The first thing that a prosecutor must bear in mind is that torture is un-
constitutional. Article III, Sec. 12 (2), of the 1987 Constitution provides that
"no torture, force, violence, threat, intimidation, or any other means, which
I Yitiate the free will shall be used against [a person under investigation]. Secret
detention places, solitary, incommunicado, or other similar forms of detention
I are prohibited.
Also, Article III, Sec. 19, of the 1987 Constitution provides that "the
I employment of physical, psychologii:al, or degrading punishment against any
prisoner or detainee or the use of 3ubstandard or inadequate penal facilities
under subhuman conditions shall be dealt with by law."
I It being unconstitutional, cases of torture are of overriding and compel-
ling significance and the State, acting through its agents, more particularly the
I prosecutor, has an interest in se~ing to it that allegations of torture are verified
as early as possible.
I a. Legal hasis.
I Under the Revised Penal Code, the prosecutor may proceed against
perpetrators of torture directly. The most parallel provision related to =,,_
torture is Maltreatment of Prisoners. A victim, if tortured while under
I custody of public officers as a prisoner, can file a criminal action under
Article 235, which punish~s a publir, officer who maltreats a prisoner
either for the purpose of extracting a confession or who oversteps the
I bounds of his/her authority over a prisoner on his/her custody either by
inflicting punishments not prescribed by regulations or by inflicting pre-
I
I
I Revised Manual for Prosecutors 199
_1
3. He maltreats such prisoner in either of the following manners:
I • By overdoing himself in the correction of a prisoner or detention
prisoner under his charge, or
I • · By. overdoing himself in the handling of a prisoner or detention
I or
I
I 200 Revised Manual for Prosecutors
I
b. Serious, Less Serious, or Slight Physical Injuries (Art. 263, 265, and 266,
I Revised Penal Code)
I inflicted;
o becomes ill or incapacitated for labor for more th~n 30 days
(but must not be more than 90 days), as a result of the physical
I injuries inflicted.
I •
period of time;
The physical injuries must not be the same as those suffered under
Serious Physical Injuries l
I o
days, or required medical attendance during the same period;
any injury that is not serious enough to prevent the offended
party from engaging in his habitual work or require medical
I assistance;
I •
•
Offender is a man~·
Offender had carnal knowledge of a woman;
I o
o
By using force or intimid:ition;
When the woman is deprived of reason or otherwise uncon-
sc10us;
I o By means of fraudulent machination or grave ab11se of author-
ity; or
o When the woman is under 12 years of age or demented.
I 0
2. Object rape
I •
.•
Offender commits an act of sexual assault;
Th~ act of sexual assault is committed by any of the foll0wing
I meany-·
.· ·;.:
o By'-inserthlg his penis into another person's mouth or anal
I orifice; or
o By inserting any instrument or object into the genital or anal
orifice of another person;
I • The act of sexual assault is accomplished under any of the follow-
ing circumstances:
I o By using force or intimidation; or
I o When .
. the victim is deprived of,...;.reason
sc10us; or
. or otherwise uncon-
,I
~ Revised Manual for Prosecutors
202
I o By means of fraudulent machination or grave abuse of author-
I o
ity; or
When the victim is under 12 years of age or demented.
I •
•
By using force or intimidation; or
When the offended party is deprived of reason or otherwise un-
conscious;
I • Hy means cf fraudulent machination or grave abuse of authority;
or
• When the offended party is under 12 years of age or demented.
I f Kidnapping and Illegal Detention
I •
latter of his liberty:
The act of detention or kidnapping must be illegal;
• In the commission of the offense, any of the following circum-
I stances is present:
I o
kidnapped or detained or threats to kill him are made; or
The person kidnapped or detained is a minor, female, or a
public officer.
I
I
Revised Manual for Prosecutors 203
I
I.
• He kidnaps or detains another, or in any other manner deprives
I him of his liberty;
• The act of kidnapping or detention is illegal;
• The crime is committed without the attendance of any of the
I circumstances enumerated under Kidnapping and Serious Illegal
Detention. . '.""···-
I
:"'
1. If torture was committed through acts that clearly evince the perpetra-
I tor's intent to ultimately kill the victim (albeit in a protracted manner
as to first extract useful or incriminating information), although the
victim did not die as a result, then an action for frustrated or attempted
I murder or homicide may be filed, alleging the following elements:
I •
•
An attempt to kill a person;
Offender attempted to kill him without any justifying circum-
stances;
I •
•
Offender had the intention to kill;
The killing was not attended by any ofthe qualifying circumstances
of murder, or by that of parritide or infanticide.
I
I 204 Revised Manual for Prosecutors
I
I J. Murder (Art. 248, Revised Penal Code) or Homicide (Art. 249, Revised
Penal Code)
I cumstances:
I In all these cases, however, the prosecution of torture takes a more circuitous
route, not to mention the fact that it would be harder to meet the quanturi}.l of
I
I
I Revised Manual for Prosecutors 205
I
4. Prosecution under the Human Security Act (RA 9372)
I Under the Human Security Act, the following acts shall not be employed dur-
I ing the investigation/ interrogation of a person detained for the crime of terrorism
or conspiracy to commit terrorism:
I' •
•
Threat
Intimidation __ ,..,,._
• Coercion
,.
I • Acts which will inflict any forni ofphysical pain or torment,_or mentf11,
· moral, or psychological press~re, or which shall vitiate the detained
person's free-will .. - r· . :;:,G-2.:,-~ -
If the above acts were shown to have been committed, the evidence obtained
I from said detained person resulting from such threat, intimidation, or coercion, or
from such inflicted physical pain or 'torment, or mental, moral, or psychological
pressure, shall be, in its entirety, absolutely not admissible and usable as evidence
I More importantly, the person or persons pr0ven t:o have committed the above
acts will be penalized under Sec. 25 of the Hunian Security Act in this wise:
I shall suffer the penalty of twelve years and one day to twenty years of
imprisonment.
I · Since the act of torture, as discussed above, may take the form or include
punishable acts like illegal or arbitrary detention; unjust imprisonment or de!en-
I freedom against cruel and unusual punishment and the freedom from arbitrary or
illegal detention.
I The prosecutor must be prudent enough to confer with the client in con-
fidence and in a manner and within an atmosphere that would inspire trust so
that the possibility of such confession or admission being obtained through
I torture can be eliminated with certaint-y. Oftentimes, the case of the prosecu-
tion can rise and fall with the admission into evidence of the defendant's
admission or confession. It is therefore imperative that torture be ruled out in
I such cases to avoid a miscarriage of justice.
I nism by which torture caa be prevented very early in the prosecution process.
Sec. 6 (e) thereof pronounces that one of the functions ofthe inquest procedure
is to determine if maltreatment or other forms of torture have been committed
I on the person arrested and to institute the necessary charges if any.
I
Revised Manual for Prosecutors 207
I
I
recommendation finding lack of probable cause, on the ground that a confes-
I sion extracted through torture or acts tantamount to it is inadmissible in evi-
dence. This is without prejudice to the institution of proper actions to proceed
I '·)~--
against the perpetrators of torture.
. . .. .:. . . . ·;..•· .,..,...;.. ,,,1,.<:°'<""" ... ' . •,,
3. Treatment oft0,rlilr¢ atth'! trial stage
I.
..
· .·. . ...._~.·- .··~2~~~f";'~;,~~/t'~~: . :r.
a. Administrative Mattef No.·MI'J 90-4001(July14, 1995)
. ·- . - '~
I::. What.if torture, up until the point where the case goes to trial, remains
undetected?. Or if torture has been resorted to only at that point most
proximate t~ the trial date. where the accused is set to testify and must
I therefore 1:>6 intimi~ted? :· ·
I What does "extra caution" entail? This would entail the judge's taking
an active role in the ascertainment of the veracity of the claim of torture
I or in the assurance that statements given in open court were not the result
of torture, even if no claim to that effect was raised. Whenever an admis-
sion or confession is introduced in evidence, the judge should personally
I satisfy hims~lf that such were voluntarily given and not extracted through
force or intimidation.
In the 1964 criminal case of People v. Castro, the Supreme Court im-
I
.•i
posed upon judges and prosecutors, to whom persons accused are brought
for swearing to the truth of their statements, the obligation to adopt the
I
practice of having confessants physically and thoroughly examined by
independent and qualified doctors before administering the oath, even if it
is not requested by the accused.
. .
It is therefore the duty of the judge to examine the candor of the ac-
I cused and look for tell-tale signs of torture even if no allegation of such
was made. In addition, the judge must not confine him/herself with mere
In Chaw Yaw Shun, the Supreme Court acknowledged that the mere
I absence of external injury in the confossor's body does not destroy or
rule out any claim of maltreatment by the use of other scientific modes or
forms of torture. Vigilance, therefore,.should be exercised by the judge in
I ascertaining that torture was not committed, whether or not such commis-
sion resulted in physical injuries.that ar~ ~asily de:ected.
I A. BACKGROUND
I
Revised Manual for Prosecutors 209
I
I
Enforced disappearances, however, are per se unfamiliar creatures in the legal
I terrain of the Philippine criminal justice system. There is no such crime found
in our statute books. Does it mean to say, then, that prosecutors faced with such
a case are left with no resort in law to vindicate the rights of the victims? How
I does an agent of the criminal justice system go about employing the ordinary
mechanisms of redress provided in law to deal with an extraordinary case like
· enforced disappearance?
I B. REMEDIES AVAILABLE UNDER ORDINARY ACTIONS
2. Criminal actions
I a. Actions under the Revised Penal Code can be brought against persons
responsible for enforced disappearances. Depending on the satisfaction
I of the requisite elements constituting each felony, the following actions
(with the following elements) may be filed against the responsible person
~, or persons for. acts that they have committed directly or on the occasion of
. the enforceddisappearance · · .
l
I 1. Arbitrary Detention (Art. 124, Revised Penal Code)
I The first and most pragmatic step in dealing with a case of enforced
disap}pearance is information-gathering. A defining characteristic of enforced
I disappearance is the sudden abduction of a person (either under the guise
of an ostensibly lawful arrest or through machinations designed to carry out
the abduction without witnesses and with impunity) under circumstances that
I would incapacitate that person's family or loved ones from knowing where to
look for him/ her afterwards. The incapacity can be brought about by factors
such as the deliberate assumption of anonymity of his/ her abductors (through
I removal of identifying nameplates/ insignias of home units, etc.), deliberate
non-disclosure of his/ her detention place, or the cutting off of alf means of
I
I Revised Manual for Prosecutors 211
I
Since the family or loved ones of the disappeared person would not know
I where to look, it becomes a challenge to avail of the usual remedies under the
law which lays down certain threshold information at the outset as a precondi-
I any media and regardless of frontiers" (U.N. GAOR 217 A (III), I 0 December
1948, · Art. 19).
I
l
I
as well as records of commitment of persons to detention facilities. Owing to
the broad and sweeping language of the constitutional provision guaranteeing
the right to information, access to official records, especially those that would
aid in the resolution of cases of enforc~d disappearance, is the general rule,
and any limitation thereto can only be imposedby direct legal prescription.
I b. such disclosure would put the life and safety of an individual in imminent
danger;
I information would:
I
Revised Manual for Prosecutors 213
I
I
5. it would disclose information the premature disclosure of which
I would:
I Notice that under letter (a) (i) in the quoted portion of the Implementing
Rules above, the invocation of national defense and security can be used to
I defeat the right to information. Experience has it that this ground has been
used to deny access to official police and-military records that could have
bee~ helpful in the location of disappeared persons.
I' defense and security interests, the State places a greater premium on the
protection of life, liberty and security of people. The famiJy and loved
ones of disappeared persons cannot be derailed i11 their search by official
2. By whom.filed
I The petition for a Writ of Habeas Data can both be a preventive and a
curative remedy:
I a. As a preventive remedy, it can be filed by:
I • collateral relatives, or
I
Revised Manual for Prosecutors
I
215
I
• any member of the community (in this particular order)
I o Such persons can seek information regarding the status of the
disappeared person, where he or she may have been detained,
I or information about him or her in the official records that may
shed light on the reason for the abduction and eventual disap-
I pearance.
I The petition for a Writ of Habeas Data should contain the following
allegations and jurisdictional information:
I /'
4. Filing of the- return
I The power of the Writ to aid in the quest of families and loved ones
in searching for disappeared persons can be seen when it is ordered to be ·
answered.
I Once the writ is ordered served, it can be enforceable anywhere in the
I court.
~·
....
:·.
.:. '
I
I 216 Revised Manual for Prosecutors
I
The filing of the return represents an opportunity for the family and
I loved ones of a disappeared person to scrutinize public records in the
custody of State officials that may lead to the surfacing of the victim or
the disclosure of the probable reason for the disappearance (invariably,
I such reason may relate to confidential information regarding membership
in a terrorist group, involvement in seditious or rebellious activities, or
identification with groups who haw~ committed past crimes or atrocities).
I To this end, the return cannot simply contain a general denial of the
I the nature of such data or information, anc:I the purpose for its
collection;
I To emphasize the urgency with which the Writ of Habeas Data should
be granted in meritorious cases, the rules provide that dilatory motions
shall be prohibited and that the nature of the hearing on the petition shall
I be summary.
I
I Revised Manual for Prosecutors 217
I
filed their return. Information that could not have been obtained upon in-
I vocation of the "national security" defense has already been disclosed to
aid in locating a disappeared person.
I ··: · ill protecting-his or her right to life~ liberty, and security, or that of his or
her loved ones, then the court shall render judgment granting any of the
following reliefs:
I o enjoinment of an act complained of
I 1. Rationale
More often than not, however, the gathering of information is not the
I final step in the_ long and arduous process of locating a loved one who has
been disappeared involuntarily. It would be an ideal situation where resort to
the right to information under the pl~nary grant of constitutional entitlement
I would already yield positive results that would lead to the reunification of a
disappeared person with his or her family.
I
I 218 Revised Manual for Prosecutors
I
However, in cases where such information-gathering mechanisms pro-
I The Rules of Court provide for a special proceeding kt!own as the Writ
of Habeas Corpus. Habeas Corpus is a high prerogative writ, a remedy
I
Revised Manual for Prosecutors 219
I
I
b. The officer or name of the person by whom he is so imprisoned
I or restrained; or, if both are unknown or uncertain, such officer
or person may be described by an assumed appellation, and the
I person who is served with the writ shall be deemed the person
intended;
c. The place where he is so imprisoned or restrained, if known;
I the writ shall not be allowed; or if the juristj.iction appe'1.rs after the
writ is allowed, the person shall not be discharged by reason of any
l
I The petition for a Writ of Habeas Corpus is an effective remedy to
compel official action in the form of the production of the body of a disap-
I peared person and the justification before a court of law of the legality of
the person's continued confinement.
I However, this presupposes that the family and loved ones of the
disappeared person have already pinpointed the disappeared person's
I
I 220 Revised Manual for Prosecutors
I
disappeared person, and on the faint hope that compelling State officials
I to explain themselves before the courts would yield some positive result.
I person need only to state the following matters in his or her return to the
court:
3. Availing of the Rule on the Writ ofAmparo (A.M. No. 07-9-12-SC, October
I 24, 2007)
.......
I . ,_ (1) Nature and Purpose .. ·~
According to the rule promulgating it, the petition for a Writ ofAmparo
I is a remedy available to:
a. any person whose right to life, liberty and security is violated or·
I threatened with violation by an unlawful act or omission of:
The petition for a Writ of Amparo mlay be filed by the aggrieved party
I or by any qualified person or entity in the following order:
I ing:
The petition shall be signed and verified and shall allege the follow-
I c. The right to life, liberty and security of the aggrieved party violated
or threatened with violatioP by an unlawful act or omission of the
I respondent, and how such threat or violation is committed with the
attendant circumstances detailed in supporting affidavits;
I e. The actions and recourses taken by the petitioner to determine the fate
or whereabouts of the aggrieved party and the identity of the person
resppnsible for the threat, act or omission; and
I f. The relief prayed for. The petition may include a general prayer for
other just and equitable reliefs.
I (4) Filing of a return
I
I Revised Manual for Prosecutors 223
I In sum, the respondent in an amparo proceeding is given a heavier burden
not only tojustify the continued detention of a disappeared person under cus-
I tody if such were the case, but also to undertake positive measures to locate
the whereabouts of the victim in case the respondent does not have him or her
under custody.
I In short, the respondent cannot simply deny that he or she has the disap-
I peared person under custody; he or she also has to prove: to the satisfaction
of the court that all reasonable means have been employed to ascertain that
the victim is indeed not under custody not only by the particular unit or outfit
I to which he or she is attached, but also by others to which inquiry may be
addressed using usual channels and networks of communication.
I Under the rule, the return to be filed in response to a petition for a Writ of
Amparo rr~ust state the following:
I a. The lawful defenses to show that the respondent did not violate or
threaten with violation the right to life, liberty and security of the ag-
I ance of the person identified in the petition which may aid in the
prosecution of the person or persons respo11$ible;
l iii. to identify witnesses and obtain statements from them concerning
I the death or disappearance;
1v. to determine the cause, manner, location and time of death or
disappearance as well as any pattern or practice that may have
I brought about the death or disappearance;
v. to identify and apprehend the person or persons involved in the
I
224 Revised Manual for Prosecutors
I
I f. A general denial of the allegations in the petition shall not be al-
lowed.
I (5) Interim reliefs that may be granted
I that the petitioner or the aggrieved party and any member of the im-
mediate family be protected in:
~
(1) a government agency
I a. The court, justice or judge, upon verified motion and after due
hearing, may order any person in possession or control of a desig-
I nated land or other property, to permit entry for the purpose of:
i. inspecting,
I 11. measunng,
111. surveymg, or
1v. photographing the property or any relevant object or operation
I thereon.
I
Revised Manual for Prosecutors 225
I
I
b. The motion shall state in detail the place or places to be
I inspected.
I
,.
If the motion is opposed on the ground of national security or
1•.
of the privileged nature of the information, the court, justice
.. ; or judge may conduct a hearing in chambers to determine the
I merit of the opposition.
11. The movant must show that the inspection order is neces-
I iv. The order shall expire five (5) days ~fter the date of its issu-
ance, nnless extended for justifiable reasons.
I 2. Production Order
I a. The court, justice or judge, upon verified motion and after due
/ hearing, may order any person in possession, cilstody or control
of any designated documents, papers, books, accounts, letters,
I photographs, objects or tangible things, or objects in digitized or
electronic form, which· constitute or contain evidence relevant to
the petition or the return, to:
I 1. produce and l
I :;
226 Revised Manual for Prosecutors
I
I
4. Witness Protection Order
I a. The court, justice or judge, upon motion or motu proprio, may
refer the witnesses to the Department of Justice for admission to
I the Witness Protection Program (RA 6981)
b. The court, justice or judge may also refer the witnesses to:
I i. other government agencies,
I I
A. BACKGROUND •
Perhaps the most abhorrent crime is that which places in jeopardy the most
I sacred thing that a person values - his or her life. There are enough bodies of
laws under criminal law that deal with such crimes. However, there is a need
to recognize that another species of killings occupy a niche of their own. These
I are killings induced by the victim's political affiliations or political beliefs and
actuations, and involve the employmec.t of summary or arbitrary methocis of
I execution.
In the Philippines, the problem was fir::;t give& full recognition and assumed
the full gravity that it deserves during the National Consultative Summit organized
by the Supreme Court last 2007. It was later on highlighted in the Report made by
United Nations Special Rapporteur in EnforcedDisappearances and Extra-legal
Killings Philip Alston. Prof. Alston paid a personal visit to the Philippines last
2007 and conducted investigations and inquiries personally to later on present a
report before the United Nations on the existence of an alarming number of cases
of extra-legal killings and enforced disappearances.
l
The National Consultative Summit itself was impelled by the recent spate of
widespread killings and summary executions of members of progressive political
groups, mostly in the countryside, and journalists widely identified as being criti-
cal of incumbent national and local officials.
These killings are distinct in that they are committed with violation of various
human rights - they muzzle political opposition, and thereby violate a person's
right to free speech and free expression; they are committed in a summary and
~
arbitrary manner, thereby violating a person's right to be accorded due process
of law prior to imposition of any punishment; and they represent a punishment
~
II Revised Manual for Prosecutors 227
I
or treatment that is neither commensurate to whatever transgression has been
I committed nor sanctioned by the criminal justice system of the country.
The defining characteristic of extra-legal killings is the fact that they are
committed in a summary, arbitrary, and sometime surreptitious manner to en-
sure impunity. Oftentimes, cases of extra-legal killings arise out of prior cases
I of enforced disappearances - the persons abducted and· from whom nothing was
ever heard again turn up in s0me lonely lot, lifeless and bearing signs of physical
maltreatment and abuse. It is therefore not easy to deal with such cases, because
I there are instance;:; where the fact of extra-legal killing will be recognized too late
and only after the ghastly murder has been committed. How, then, can the Public
Prosecutor be in the best position to corfront an issue as complex as extra-legal
I killing?
I The remedy of the Writ of Amparo is broad and encompasses not only the
compulsion of State officials to divulge information leading to the surfacing of a
disappeared per:;on as discussed in the preceding section, but also the provision
I cf whatever protective remedy may be warranted, available, and equitable under
the law. Indeed, the literal mear1ing of the origin of"the word "amparo" (i.e.,
amparar in Spanish, meaning "to protect") evince~ its central function in the legal
I scheme of procedural law - the protection of persons whose right to life, liberty,
or security is violated or threatened with violation.
I The avaiiment of the remedy of the W'rit of Amparo under t4e case of enforced
disappearance would focus more on compelling State officials to divulge what-
I to obtain official assurance against threats to life, liberty or security under the
aegis of a court of justice. The Writ of Amparo, with its built-in interim reliefs
as discussed in the preceding section, can provide the petitioner with protective
I remedies that would ensure that his or her life, liberty, or security will not be
compromised even while the petition is being heard. This provision in the rule
represents an acknowledgment that the pronouncements of State officials before
I the court cannot be taken at their face value; that even while they give assurances
against threats to life, liberty, or security, it does not mean that the petitioner
becomes less insecure and less vulnerable to sudden violations.
I Rather than be complacent, the court shall be proactive in according protec-
I tion to the petitioner in such manner as to avert the occurrence of extra-legal kill-
ing. Truly, there exists a remedy under procedural law that may be availed, at the
outset, avert the possibility of one being subjected to extra-legal killing. As such,
I every person, especially those operating within sensitive political arenas, should
be vigilant in securing the aid of counsel for the filing of a petition for a Writ of
Amparo at the first signs or information of threats to life, liberty, or security.
I C. REMEDIES AVAILABLE FOR INFORMATION-GATHERING
When the extra-legal killing has been attended by violation of any of the civil
and political rights and liberties enumerated in Article 32 of the Civil Code (e.g.,
the right not to be subjected to illegal or arbitrary detention, or cruel and unusual
punishment), an action for damages may be maintained. As explained in Part II of
this Manual, this is without prejudice to the claiming of damages of the kind that
is deemed instituted with every criminal action, supposing the act complained of
also amounts to a punishable felony (which extra-legal killing undoubtedly is).
In addition, since the Victim Compensation Act expressly recognizes the right
of compensation should a violent crime be committed which resulted in death,
~
i
Revised Manual for Prosecutors 229
I
I then the heirs of the victim can also file a claim before the Board of Claims of the
Department of Justice.
The Human Security Act, as already explained earlier, provides that, "any
I person or persons who use threat, intimidation, or coercion, or who inflict physi-
cal pain or torment, or mental, moral, or psychological pressure, which shall
vitiate the free-will of a charged or suspected person under investigation and
I interrogation for the crime of terrorism or the crime of conspiracy to commit
terrorism shall be guilty of an offense and shall suffer the penalty of twelve ( 12)
I years and one day to twenty (20) years ofimprisonment. When death or serious
permanent disability of said detained person occurs as a consequence of the use
of such threat, intimidation, or coercion, or as a consequence of the infliction on
I person, but tb.e person was later on subjected to a death that was not sc.nctioned by
the law, thereby qualifying the !ci!ling as extra-legal. Whoever is responsible for
the physical maltreatment that resulted in the extra-legal killing may be prosecuted
I directly under the Human Security Act provisions, with the penalties imposable
as quoted above.
I
I
F. CRIMINALACTIONS
Extra-legal kiliings are given a niche of their own because of their human
rights dimensions. However, in the eyes of criminal law, extra-legal killings,
I
despite their political underpinnings, despite their summary and arbitrary nature,
I and despite the perceived involvement of State offi.dals and agencies by way of
direct commission or indirect acquiescence by silence, are still takings of the life
of another. Under the Revised Penal Code, extra-legal killings qualify as either
I murder or homicide {Article 248 and 249, respectively), and the circumstances
under which the killing was effected may warrant the contemplation of the aggra-
vating circumstances of taking advantage of public position, lack of provocation,
I nocturnity, being committed by a band, evident premeditation, taking advantage
ofsuperior strength; or treachery/ alevosia
I .
I
I 230 Revis.ed Manual for Prosecutors
I
V. PROSECUTING CASES OF INVOLUNTARY DISPLACEMENT
I A. BACKGROUND
These rights spring from the inherent entitlement of every person to establish
I a domicile in a place that he or she finds necessary, convenient, or beneficial, ow-
ing to personal needs and circumstances and considerations of livelihood, culture,
and physiology.
I Concomitant to this right to settle dcwn, however, is also the freedom to
change the same voluntarily. In the constitutional provision just quoted, the only
I restriction to every person's co11stitutionally protected liberty of movement are
issues of national security, public safety, or public health; and even then, such
I right to liberty. The rights and privileges accorded to a citizen will be seriously
impaired if he/ she is prevented from choosing a permanent place of residence
in which one, in his/her personal opinion, is in the best position to exercise such
I rights and fulfill their corresponding duties.
It also violates the constitutional protection of one's property for the State
I to arbitrarily order the transfer of its citizens from one place to another without
regard of resulting economic consequences like the loss of a job, occupation, or
I real property. Lastly, a person's life and culture is almost always inextricably
tied to one's place of residence. Therefore, any act of the State which arbitrarily
impairs the right of :llbode and movement can result in unduly uprooting a citizen
How can certain acts violate the right of abode and freedom of movement?
I The practice of "hamletting", or the saturation of a local village or area by State
officials for strategic rr.ilitary or police objectives and the forcible evacuation of
its people to other locations is one such act violative of the right of abode and
I freedom of movement. As these rights are infused with a heavy public policy
dimension, caution should be taken in the commission of acts that may impinge
I on them; and if violations have been committed against them, they should be
proceeded against accordingly.
I
I
I justified his act using the police power prerogatives oflocal government officials.
· In striking down the act as unconstitutional for being violative of the right of
abode and freedom of movement, the Supreme Court had occasion to lay down
I the paramount guideline in the conduct of any official act that would have the
effect of delimiting the people's right to abode and freedom of movement: th~.t
. ·there must be a law authorizing the same. '!'he Court asseverated in this wise:
I "Alien prostitutes can be expelled from the Philippine Islands in
I Ordinances of the City of Manila provide for the conviction and pun-
ishment by a court ofjustice of any person who is a common prostitute.
Act No. 899 authorizes the return of any citizen of the United States,
I who may have been convicted of vagrancy, to the homeland. New York
and other States have statutes providin~ for the commitment to the
House of Refuge of women convicted of being common prostitutes.
I Always a law! Even when the health authorities compel vaccination,
or establish a quarantine, or place a leprous person in the Culion leper
colony, it is done pllrsuant to some law or order. But one can search
I in vain for any law, order, or regulation, which even hints.at the right
of the Mayor of the City of Manila or the chief of police of that city
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(1) Article 32 of the Civil Code, as discussed earlier in this manual, expressly
I recognizes that the violation of the right to abode and freedom of move-
ment is an act that would warrant compensation by way of moral and
exemplary damages.
I (2) This is without prejudice to whatever civil action for damages may be
maintained as a consequence of the criminal act to which the violation
I would amount.
a. The felony of expulsion as punished in the Revised Penal Code has the
I following elements:
I ( 1) When the perpetrator of an act violative of thF: right of abode and freedom
ot movement is not a public officer, such act would qu<"lify as grave co-
I ercion punishable by the Revised Penal Code. The elements of the felony
are:
I Currently, human rights violations are not given particular and direct treat-
ment under the law. As it were, the multifarious ways by which a person's human
rights may be violated are addressed by way of distinct ~riminal actions that may
I be instituted whenever particular acts fall within the ambit of the law punishing
such. Their generic character means that these remedies may be availed of in
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almost all acts amounting to a violation of human rights, including the particular
I cases of human rights violations given treatment in this. However, two remedies,
one under the general civil law on damages and the other as provided in special
I law, stand out as among the instances where the violation of human rights is
treated as a wrongful act warranting redress.
I without prejudice to the filing of, a criminal action in cases where the viola-
tion would also qualify as a criminally punishable act."
I 2. By whom filed.
Any person whose civil and political rights and liberties as enumerated
I in paragraph (4) below have been directly or indirectly obstructed, defeated,
violated, or in any manner i~npeded or impaired.
• That, despite this duty, the person being sued directly or indirectly ob-
I structed, defeated, violated, or in any manner of impeded or impaired
such civil and/ or political rights and/ or liberties.
I • That the civil and/ or political rights and/.. or liberties obstructed, defeated,
violated, or in any manner impeded or impaired~falls under the enumera-
tion in Article 32 of the Civil Code:
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I 234 Revised Manual for Prosecutors
I o Freedom of religion
o Freedom of speech
I o
o
Freedom to write for the press or to maintain a periodical publication
Freedom from arbitrary or illegal detention
I o
o
Freedom of suffrage
The right against deprivation of property without due process of law
o The right to just compensation when property is taken for public use
I o
o
The right to equal protection of the laws
The right to be secure in one's person, house, papers and effects against
unreasonable searches and seizures
I o
o
The liberty of abode and of changing the same
The right to privacy of communication and correspondence
o The right to become a member of associations and scc.:ieties for pm-
I o
poses not contrary to law
The right to take part in a peaceable assembly and petition the govern-
I o
ment for redress of griev~mces
The right to be free from involuntary servitude in any form
o The right of the accused against excessive bail
I o The right of the accused to be heard by hir.:iself and counsel, to be
informed of the nature and cause of the accusation against him, to
have a speedy and public trial, to meet the witnesses face to face, to
I have compulsory process to secure the attendance of witnesses on his
behalf;
c Freedom from being compelled to be a witness against one's self, or
I from being forced to confess his guilt, or from being induced by a
promise of immunity or reward to make such confession, except when
I o
the person confessing becomes a State witness.
Freedom from excessive fines, or cruel and unusual punishment,
unless the same is imposed or inflicted in accordance with a statute
I o
which has not been judicially declared unconstitutional;
Freedom of access to the courts
I
'
The victim filing the complaint may be indemnified at the discretion of
the courts by way of moral damages and, in cases warranting it, exemplary
damages.
I
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Revised Manual for Prosecutors 235
I
C. FILING A CLAIM BEFORE THE BOARD OF CLAIMS OF THE
I DEPARTMENT OF JUSTICE UNDER THE VICTIM COMPENSATION
ACT (RA 7309)
I 1. Legal basis
• By whom filed.
I o any person who was unjustly accused, convicted and imprisoned but
subsequently released by virtue of a judgment of acquittal;
I o any person who was unjustly detained and released without being
1.:harged;
I o any victim of arbitrary or illegal detention by the authorities as defined
I o
in the Revised Penal Code :mder a final judgment of the court; and
0 rape; or
I 0 offenses committed with malice which resulted in death or serious
physical and/or psychological injuries, permanent incapacity or
disability, insanity, abortion, serious trauma; or
I D committed with torture, cruelty or barbarity.
I o The heir of a person entitled to any award under this Act who died or
was incapacitated.
I • Procedure for filing claims (Title III, Sec. 2, IRR ofRA 7309)
- '
.
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~ a certified true copy of the judgment of acquittal;
I including but not limited to the certified true copy of the report to
the police or a doctor's/psychiatrist's certificate, if necessary.
-I o The Board shall resolve the claim within thirty working days after the
filing of the application; and,
I o Within 6 months fr~m the date the victim suffered damage or injury.
I o For all other cases, the maximum amount of compensation that may be
g:.:anted by !he Board of Claims shall not exceed PI0,000.00 pesos or
the amount rre~essary to reimburse the claimant the expenses incurred
I for hospitalizatiori, medical treatment, loss of wage, loss of support or
other expenses directly related to injurv, whichever is lower.
I (therefore, the claimant can still claim damages or file any other action
when justified under law).
I
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I Special Section on
I Prosecuting Viol~tfons of the
National Internal Revenue Code (NIRC)
and Related Laws
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Special Section on Prosecuting Violations of the National Internal
I Revenue Code (NIRC) and Related Laws
I
I. POINTERS IN THE PROSECUTION OF TAX CASES
I 1. The prosecutor shall interview tax investigators and witnesses to gain an overall
understanding of the nature of the dispute, the facts giving rise to and surrounding
I the dispute.
I 2. The prosecutor shall acquire additional information from witnesses which may
not have been related to him by the investigator. (Goldstein, Trial Technique, p.
226)
I 3. The prosecutor shall find out whether the witness (informant, asset, etc.) has any
interest on the outcome of the action; and
I 4. The prosecutor shall endeavor to find out other circumstances that may affect t}Je
competency and credibility of the witnesses. (Elliot, The Work of the Advocate,
I p. 6.)
I 5. The prosecutor shall determine, as far as practicable, what laws and jurisprudence
are applicable in the case and how they are appiicable to the set of facts as relayed
by the investigat~r and witnes:>es.
I 6. The prosecutor shall create a theory of the case which is defined as the framework
for the presentation of the facts and law, (Trial Preparation, David Broad, p.
I 2) or a comprehensive and orderly mental arrangement of principles and facts,
conceived and constructed for the purpose of securing a judgment or decree of a
court in favor of a litigant. (Elliot, 1 General Practice, Sec. 39)
I 7. In the preparation of the witnesses, it is improper for prosecutors to "coach" a
I witness respecting the evidence which he or she will give. However, it is impor-
tant that prosecutors understand and appreciate fully the nature of the evidence in
tax cases which the witness will give on the issues.
I 8. The prosecutor shall prepare the trial brief pursuant to DOJ Department Circular
No. 47, s. 2000.
I 9. In organizing the exhibits, the prosecutor shall, if possible, put them in a clear
I book. The original should be on one side and the photocopy on the other.
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I 240 Revised Mar11.Aal for Prosecutors
I II. INSTITUTION OF CRIMINAL CASES
All criminal actions wherein the amount of taxes and fees involved is One Million
I pesos (Phpl,000,000.00) or more shall be filed before the Court ofTaxAppeals (CTA)
in the exercise of its original jurisdiction.
I The recommended bail shall be in accordance with the DOJ Bail Bond
Guide.
I C. Pre-trial
I The parties may not be allowed to compromise the criminal liability or suhmit
the case to mediation, arbitration or other mode of alternative dispute resolution.
I A. Sec. 254. Attempt to Evade or Defeat Tax. -Any person who willfully attempts
in any man.11er to evade or defeat any tax imposed under this Code or the pay-
ment thereof shall, in addition to other penalties provided by law, upon conviction
I thereof, be punished by a fine not less than Thirty thousand pesos (P30,000) but
not more than One hundred thousand pesos (P 100,000) and suffer imprisonment
of not less than two (2) years but not more four (4) years: Provided, that the
I conviction or acquittal obtained under this section shall not be a bar to the filing
of a civil suit for the collection of taxes.
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Revised Manual for Prosecutors 241
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I
2. Tax evasion connotes the integration of three factors:
I a. The end to be achieved, i.e., the payment of less than that known by the
taxpayer to be legally due, or the non-payment of tax when it is shown
I that a tax is due;
I Revenue vs. Estate of Benigno Toda, Jr. (GR No. 147188. September 14,
2004)
I h. Mayor's Permit
1. Department of Trade and Industry (DTI) registration (if sole proprietor-
ship)
I J. Proof of income received or documents to show source of income
k. Any other documents showing participation/ involvement of other persons
in the commission of the offense
I 1. Third Party Certification (original or if unavailable, certified true copy)
m. Certification from the district, region or ITS showing existence or non-
existence ~f return
I n. Fraudulent Scheme:
n. l. In case of ONETT, 2 or more Deeds of Conveyance
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I 242 Revised Manual for Prosecutors
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n.2. Using dumrny/ies
I n.3. Using fake Certificate Authorizing Registration (CAR) to commit
tax evasion
o. Badges of Fraud:
I o.1. intentional and substantial understatement of taxable income as
shown in the returns, financial statements, balance sheet, or deeds
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I Revised Manual for Prosecutors 243
I
B. Sec. 255. Failure to File Return, Supply Correct and Accurate Information.,
I Pay Tax Withheld and Remit Tax and Refund Excess Taxes Withheld on
Compensation. -Any person required under this Code or by rules and regulations
promulgated thereunder to pay any tax make a return, keep any record, or supply
I correct and accurate information, who willfully fails to pay such tax, make such
return, keep such record, or supply correct and accurate information, or withhold
or remit taxes withheld, or refund excess taxes withheld on compensation, at the
I time or times required by law or rules and regulations shall, in addition to other
penalties provided by law, upon conviction thereof, be punished by a fine of not
I less than Ten thousand pesos (Pl0,000) and suffer imprisonment of not less than
one (I) year but not more than ten (10) years.
I Any person who attempts to make it appear for any reason that he or another
has in fact filed a return or statement, or actually fil~s a return or statement and
subsequently withdraws the same return or statement after securing the official
I receiving seal or stamp of receipt of internal revenue office wherein the same
was actually filed shall, upon conviction thereof, be punished by a fine of not less
than Ten thousand pesos (Pl0,000) but not more than Twenty thousand pesos
I (P20,000) and suffer imprisonment of not less than one (1) year but not more than
three (3) years.
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I 244 Revised Manual Prosecutors
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c.6. officer-in-charge
I d.
c. 7. employees responsible for the violate
Tax Return of the taxpayer
e. BIR registration (Integrated Tax System [ITS]/RDO certification) to show
I (
that the person is a registered taxpayer
Deeds of conveyance & Certificate of Authorizing Registration (in case of
One-Time Transaction [ONETT])
I g.
h.
Contracts
Mayor's permit to show that business is in operation
DTI registration (if sole proprietorship)
I
i.
J. DTI or SEC records to show existence of business operation
k. Proof of income received or document" to show source of income
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Revised Manual for Prosecutors 245
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I
take or misappropriate or shall consent, through abandonment or negligence,
I shall permit any other person to take such public funds, or property, wholly or
partially, or shall otherwise be guilty of the misappropriation or malversation
of such funds or property xxx xxx xxx"
I a. The provisions of Art. 217 shall apply to:
I this chapter shall apply to private individuals who in any capacity whatever,
have charge of any insular (now national), provincial, or municipal funds,
revenues, or _!1roperty or to any administrator or depository of funds or prop-
I erty :ittached, seized, or deposited by public authority, even if such property
belongs to a private individual
I o Secs. 58 and 81
l
c.
I Sec. 257 (B)(S) - Knowingly Uses Fake Certifi.cati! Authorizing Registration
Sec. 257. Penal Liability for Making False Entries, Records or Reports, or
I Using Falsified or Fake Accountable Forms.
I (8) Willfully attempts in any manner to evade or defeat any tax im-
posed under this Code, or knowingly uses fake or falsified revenue official
I
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246 Revised Manual for Prosecutors
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receipts, Letters ofAuthority, certificates authorizing registration, Tax Credit
I Certificates, Tax Debit Memoranda and other accountable forms shall, upon
conviction for each act or omission, be punished by a fine not less than Fifty
thousand pesos (P50,000) but not more than One hundred thousand pesos
I (Pl00,000) and suffer imprisonment of not less than two (2) years but not
more than six (6) years.
I c.2. president
c.3. general manager
c.4. branch manager
I c.5. treasurer manager
c.6. officer-in-charge
c. 7. employees responsible for the violation
I d. Tax Return of the taxpayer
e. BIR registration (Integrated Tax System (ITS) /RDO certification) to show
that the person is a registered taxpayer
I f. Deeds of Conveyance & Certificate Authorizing Registration (in case of
One-Time Transaction}[ONETT])
I g. Contracts
h. Mayor's permit to show that business is in operation
1. DTI registration (if single proprietorship)
~
J. DTI or SEC records to show existence of business I operation
k. Proof of income received or documents to show sources of income
I. Any other documents showing participation/ involvement of other persons
in the commission of the offense (conspirators)
m. Revenue official receipts
n. Letter of Authority
o. Certificate Authorizing Registration
p. Tax credit Certificates
I r.
s.
Certification from district, region, ITS as to authenticity of tax forms
Register of Deeds documents
t. Deeds of Conveyance
I u.
v.
Contracts
Other documents to show that there was a fraudulent scheme adopted to
produce or use a falsified CAR or other forms.
I 3. Revised Penal Code Provision on Falsification in relation to Sec. 257 (B)
I ments.- The penalty of prision correctional in its medium and maximum peri-
ods and a fine of not mere than 5,000 pesos shall be imposed upon:
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b.4. That the use of the false document caused damage to another or
I least, it was with intent to cause such damage.
I document
D. Sec. 258. Unlawful Pursuit of Business. -Any person who carries on any busi-
I ness for which an annual registration fee is imposed without paying the tax (fee)
as required by law shall, upon conviction for each act or omission, be punished by
a fine of not less than Five thousand pesos (P5,000.00) but not more than Twenty
I thousand pesos (P20,000) and suffer imprisonment of not less than six (6) months
but not more than two (2) years; Provided, that in the c&se of a person engaged in
I not more than Fifty thousand pesos (P50,000) and suffer imprisonment of not l~ss
than two (2) years but not more than four (4) years.
a. A person, natural or juridical, carries on any business for which ~.n annual
I registration fee is imposed; and
b. Such person did not pay the required annual registration fee
~ c. l. partner
c.2. president
I
J
c.3. general manager
c.4. treasurer
c.5. branch manager
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I Revised Manual for Prosecutors 249'
I
c.6. treasurer
I c.7. officer-in-charge
c.8. employees responsible for the violation
d. Deeds of Conveyance & Certification Authorizing Registration (in case of
I One Time Transaction [ONETT])
e. Contracts
I n. Ocular Inspection
o. Certification from Collection and Enforcement Division
p. No official receipt registered with the RiR
E. Sec. 267. Declaration under Penalties of Perjury. -Any declaration, return and
I other statement required under thi~ Code, shall in lieu of an oath, contain a writ-
ten statement that they are made und~r the penalties of perjury. Any perscm who
willfully files a declaration, return or statement containing information which is
I not true and correct as to every material matter shall, upon conviction, be subject
to the penalties prescribed for perjury under the Revised Penal Code.
I d.
e.
Contracts
DTI registration (if sole proprietorship)
f. Tax Return
I g.
b.
Proof of income
Certificate from district, region, ITS
1. Financial Statements
I J. Third Party Information
F. Sec. 236 (J), last par.- Securing More Than One TIN
I Sec. 236.RegistrationRequirements. (J) Supplying a 'Taxpayer Identification
Number (TIN).- Any person required under the authority of this Code to make,
I render or file a return, statement or other document shail be supplied wiih or
assigned a Taxpayer Identification Number (TIN) which he shall indicate in such
I return, statement or document filed with the Bureau of Internal Revenue for his
proper identification for tax purposes, and which he shall indicate in certain docu-
ments, xxx
I xxx xxx xxx
I 2. Actus non facit reum nisi mens sit rea - "the act does not make a person guilty
unless the mind is also guilty."
I statute it means "not merely "voluntarily' but with a bad purpose; in other
words, corruptly." In English and the American statutes defining crimes
"malice," "malicious," "maliciously," and "malice aforethought" are
I a. Sec. 254. Attempt to Evade or Defeat Tax. - "Any person who willfully
attempts in any manner to evade or defeat any tax imposed under this
Code or the payment thereof shall xxx be punished xxx"
I
I 252 Revised Manual for Prosecutors
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b. Sec. 255. Failure to File Return, Supply Correct and Accurate
I Information, Pay Tax, Withhold and Remit Tax and Refund Excess
Taxes Withheld on Compensation. - "Any person required under this
Code or by rules and regulations promulgated thereunder to pay any tax,
I make a return, keep any record, or supply correct and accurate informa-
tion, who willfully fails to pay such tax, make a such return, keep such
record, or supply such correct and accurate information, or withhold or
I remit taxes withheld, or refund excess taxes withheld on compensation,
at the time or times required by law or rules and regulations, shall xxx be
I punished xxx" .
c.2. Willfully attempts in any manner to evade or defeat any tax imposed
I xxx
I a. Aznar vs. CTA (GR No. L-20569, 23 August 1974, 58 SCRA 519)
I a. l. While this is not a criminal case, the Supreme Court (SC) had an
opportunity to discuss what constitutes fraudulent intent. The
petitioner was questioning the assessment of deficiency tax and
I imposition of surcharge. There was a substantial difference .found
between the amounts of net income on the face of the returns as
I filed by petitioner in the years 1946 to 1951 and the net income as
determined by the inventory method utilized by respondents for the
same years.
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I Revised Manual for Prosecutors 253
I
were also repeated yearly, and yet we cannot presume therefrom the
I existence of any taint of official fraud.
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I 2S4 Revised Manual for Prosecutors
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b.2. The following are the relevant pronouncements of the SC on intent
I and willfulness:
I The taxpayer was the recipient of some money from abroa<l which
he presumed to be a gift but the amount was actually erroneously
remitted to his account. In his income tax return, the taxpayer put
I a footnote stating the above and the fact th:it the :i!llount is now
subject to litigation.
I c.2. The SC cited the ruling in the Aznar case as regards fraud and
held: "In the case at bar, there was no actual and intentional fraud
through willful and deliberate misleading of the government agency
I concerned, the Bureau of Internal Revenue, headed by the herein
petitioner. The govern}nent was not induced to give up some legal
I
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I d. CIR vs. CA (GR No. 119322, 04 June 1996, 257 SCRA 200)
I d.3. The SC further clarified the ruling in Ungab vs. Cusi, to wit:
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256 Revised Manual for P.-osecutors
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I
final detennination of what is supposed to be the correct taxes, the
I taxpayer should not be placed in the crucible of criminal prosecu-
tion." (Underscoring and emphasis supplied.)
a Pascual and Dragon vs. CIR (C.T.A. Case No. 3045, 29 December
I 1986)
I "To our mind, there was willful neglect to file the corporate in-
come tax returns required by law on the part of petitioners because,
as borne out by the records, both petitioners Mariano P. Pascual and
I Renato P. Dragon did not file separate individual income tax ret..uns
for 1968 reporting their respective share of the profits realized by
I them in said year from their real estate transactions. (p. 28, Bureau
of Internal Revenue records.) If petitioners did not even bother to
report their share of the profits derived by them from their buyin£"
I and selling transactions, why should they take the trouble of filing
corporate income tax return for their partnership? But assuming that
for the year l 96S petitioners were not yet aware that they are taxable
I as an unregistered partnership subject to corporate income tax, they
could at least have filed their separate individual income tax returns
for this year. It seems clear therefore that there was intentional
I wrongdoing with the object of avoiding the tax on the part of
petitioners." (Emphasis and underscoring supplied.)
I b. Sevilla, Son, Ruben Tiu, Ben Tiu and Jerry Tiu vs. CIR (C.T.A. Case No.
6211, 04 October 2004)
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I Revised Manual for Prosecutors 257
I
shares of stocks by the petitioners, the tax base was lessened which
I ultimately led to a lower capital gains tax due. In other words, when
petitioners intentionally overstated the cost of acquisition of
the said shares in their capital gains tax returns, they willfully
I evaded the payment of correct taxes thereby denying or depriv-
ing the government the right to collect the exact taxes due from
petitioners' stock transactions. Furthermore, it is noteworthy that
I except for the objection that the Deeds of Assignment were not best
evidence nor secondary evidence, petitioners failed to rebut the al-
legation of overstatement of the cost of acquisition in the capital
I gains tax return. Petitioners during the investigation and during the
trial of the case did not present evidence to justify their declaration
I of the cost of acquisition in the capital gains tax returns filed with
the Bureau of Internal Revenue." (Emphasis and underscoring sup-
plied.)
I c. People vs. Mallari (C.T.A. Crim. Case Nos. A-1 & A-2, 04 September
2006)
I c. l. This is a criminal case for failure to pay deficiency income tax and
value added tax.
I c.2. According to the CTA:
I "The Supreme Court had ruled that the word willful in a stat-
ute means 'not merely voluntary but with a bad purpose; in other
I words, corruptly' and that a voluntary act is a free, intelligent, and
intentional a.ct.
I and Levy (Exhibit "K") and the Demand Letter (Exhibit "D") de-
manding payment of the deficiency taxes stated in the assessment
notices; and the fact that he admitted that he ignored the demand
I for payment of the deficiency taxes, there is no other conclusion that
can be drawn except that the accused-appellant willful!y did not
pay his deficiency tax liabilities. Furthermore, accused-appellant's
I admission that he paid P50,000 to two BIR Regional District Office
employees to settle his tax liabilities without asking for any receipt
reveals a conscious effort to evade his 1993 tax liabilities. The act
I of bribing the BIR employees constitutes an overt act on the
part of accused-appellant that showed his deliberate and willful
I
258 Revised Manual for Prosecutors
I
I
refusal to pay his deficiency tax liabilities to the government. He
I resorted to bribery instead of fulfilling his legal obligation of paying
his deficiency taxes." (Emphasis and underscoring supplied.)
I her income for the year 1985 to prepare her income tax return ...
Com;equently, failing on the part of the prosecution to substanti-
ate through competent clvidence that accused Mrs. Imelda Marcos
I willfully, unlawfully and feloniously neglected to file and pay [an]
income tax return for [the] year 1985, she could not be hdd crimi-
nally liable.
I The Court finds merit in the argument that the failure on the part
of the accused to file the estate tax return and to pay the estate tax
I is not willful. Although accused may have failed to comply with
what is required by law, accused should be exempted from criminal
On the who le, underscoring the finding ofthe Court that accused's
I failure to comply with her tax obligation was due to causes beyond
her control, there is no doubt that the element of "willfulness" for
crimes iuvolving the violation of the National Internal Revenue
I Code, as alleged in the Information in these five (5) criminal com-
plaints, is lacking. In short, the prosecution's evidence did not pass
the test of moral certainty that there was "willful disobedience" on
I the part o!:' the accused with the intention to evade and defeat the
tax." (Underscoring supplied.)
I Cir. 1986); United States v. Farris, 517 F.2d 226, 229 (7th Cir. 1975).
I contradictory forms. United States v. Shivers, 788 F.2d 1046, 1048 (5th
Cir. 1986)
I; d. Thus, willfulness can be shown by such factors as: the background of the
defendant; the filing of returns in prior years, United States v. Briscoe,
I; 65 F.3d 576, 588 (7th Cir. 1995); United States v. Hauert, 40 F.3d 197,
199 (7th Cir. 1994); United States v. Birkenstock, 823 F.2d 1026, 1028
(7th Cir. 1987); united States v. Bohre1; 807 F.2d 159, 161 (10th Cil:
11 1986) United States v. Shivers, 788 F.2d 1046, 1048 (5th Cir. 1986); that
the defendant was a college graduate with accounting knowledge; that
the defendant was familiar with books and records and operated a busi-
I I
'
ness, United States v. Segal, 867 F.2d 1173, 1179 (8th Cir. 1989); that the
defendant earned a large gross income, Bohrer, 807 F.2d at 161. See also
United States v. MacLeod, 436 F.2d 947, 949 (8th Cir. 1971) United States
IiI v. Ostendorff, 371F.2d729, 731 (4th Cir. 1967).
e. Evidence that a defendant had filed returns in other years when he ~laimed
~ refunds while there was a substantial tax due for the years he failed to
file is relevant evidence and more than enough to establish willfulness.
I i
Garguilo, 554 F.2d at 62. ·
~ Manual 8.06[2]]
I a. In the leading case of Spies v. United States, 317 US. 492, 499 (1943), the
Supreme Court, "by way of illustration and not by way of limitation," set
forth the following as examples of conduct from which willfulness may
I be inferred:
I
I Revised Manual for Prosecutors 261
I
"[K]eeping a double set of books, making false entries or alterations,
I or false invoices or documents, destruction of books or records, conceal-
ment of assets or covering up sources of income, handling of one's affairs
to avoid making the records usual in transactions of the kind, and any
I conduct, the likely effect of which would be to mislead or to conceal."
United States v. Kim, 884 F2d 189, 192 (5th Cir. 1989) (evi-
I dence of willfulness was sufficient where taxpayer failed to report
$182,601 of income over three years); United States v. Kryzske,
836 F2d 1013, 1019-20 (6th Cir. 1988) (willfulness found where
I taxpayer failed to fiie complete tax returns over a four-y-:ar period
and underreported his income by $940.50 for one of those years);
United States v. Guidry, 199 F3d 1150, 1157 (10th Cir. 1999); see
I also United States v. Klausner, 80 F3d 55, 63 (2d Cir. 1996); United
States v. Skalicky, 615 F2d 1117 (5th Cir. 1980); United States v.
Larson, 612 F2d 1301 (8th Cir. 1980); United States v. Gardner,
I 611 F2d 770 (9th Cil: 1980)
I United States v. Samara, 643 F2d 701, 703 (/0th Cir. 1981)
(taxpayer kept receipt books for cash received but did not supply
them to accountant, thus concealing cash receipts); see also_ United
I States v. Guidry, 199 F.3d 1150, 1157 (10th Cir.1999); United States
v. Brimberry, 961 F2d 1286, 1290 (7th Cir. 1992); United States
v. Chesson, 933 F2d 298, 305 (5th Cir. 1991); United States v.
I Michaud, 860 F2d 495, 500 (1st Cir. 1988); United States v. Meyer,
808 F2d 1304, 1306 (8th Cir. 1987); United States v.iAshfield, 735
I F2d 101, 107' (3d Cir. 1984); United States v. Conforte, 624 F2d
869 (9th Cir. 1980); United States v. Scher, 476 F2d 319 (7th Cir.
1973).
I b.3. Taxpayer who relies on others to keep his records and prepare his
tax returns may not withhold information from those persons rela-
I tive to taxable events and then escape criminal responsibility for the
resulting false returns.
I
I
262
I Revised Manual for Prosecutors
I
United States v. Simonelli, 237F.3d19, 30 (1st Cir. 2001); United
I States v. O'Keefe, 825 F.2d 314, 318 (11th Cir. 1987); United States
v. Garavaglia, 566 F.2d 1056 (6th Cir. 1977).
I United Strites v. Chesson, 933 F.2d 298, 304 (5th Cir. 1991);
United States v. FrederJckson, 846 F.2d 517, 520-21 (8th Cir. 1988)
I (tBxpayer falsely stated that she did not receive income from other
employees who worked in her massage parlor and that she deposited
most of her income in the bank); United States v. Walsh, 627 F.2d
I 88 (7th Cir. 1980); United States v. Tager, 481 F.2d 97, JOO (10th
Cir: 1973); United States v. Callanan, 450 F.2d 145, 150 (4th Cir.
1971); United States v. Jett, 352 F.2d 179, 182 (6th Cir. 1965); see
I also United States v. Klausner., 80 F.3d 55, 63 (2d Cir: 1996); United
States v. Pistante, 453 F.2d 412 (9th Cir. 1971); United States v.
b.5. Keeping a double set of books. United States v. Daniels, 617 F.2d
United States v. Wilson, 118 F.3d 228, 236 (4th Cir. 1997); United
Ii
!'
States v. Chesson, 933 F.2d 298, 304 (5th Cir. 1991); United States
v. Walker, 896 F.2d 295, 298 (8th Cir. 1990) (defendants submitted
Ii
I
I Revised Manual for Prosecutors 263
I
b.8. Destruction of invoices to customers. United States v. Garavaglia, 566 F2d
I United States v. Daniel, }'56 F.2d 540 (6th Cir. 1992) (defendant used
cash extensively, immediately converted checks to cash, and paid employ-
I ees and insurance policies in cash); United States v. Holovachka, 314 F2d
345, 358 (7th Cir. 1963); Schuermann v. United States, 174 F2d 397, 398
(8th Cir. 1949) . .
I b.11. Spending large amounts of cash which could not be reconciled with the
amount of income reportec.
I United States v. Simonelli, 237 F3d 19, 30 (1st Cir. 2001); United States
I v. Olbres, 61F3d967, 971 (1st Cir. 1995); United States v. Kim, 884 F2d
189, 192 (5th Cir. 1989); or engaging in surreptitious cash transactions,
United States v. 3kalick_y, 615 F.2d 1117 (5th Cir. 1980). See also United
I States v. Holladay, 566 F2d 1018, 1020 (5th Cir. 1978) United States v.
Mortimer, 343 F2d 500, 503 (7th Cir. 1965) (money orders and cashier's
checks).
I b.12. Use of bank accounts held under fictitious names. United States v. Ratner,
464 F2d IOI, 105 (9th Cir. 1972); Elwert v. United States, 231 F2d 928
I (9th Cir. 1956); cf United States v. White, 417 F2d 89, 92 (2d Cir. 1969).
I b.13. Checks cashed and the currency deposited in an out-of-town bank account.
United States v. White, 417 F.2d 89, 92 (2d Cir. 1969).
United States v. Walker, 896 F.2d 295, 299 (8th Cir. 1990) (over a two-
I year period taxpayer failed to report interest income totaling $20,476);
United States v. Tager, 479F.2d120, 122 (10th Cir. 1973); Sherwin v. United
b.16. Prior and subsequent similar acts reasonably close to the prosecution
I years.
United States v. Middleton, 246 F.3d 825, 836-837 (6th Cir. 2001);
I Matthews v. United States, 407 F2d 1371, 1381 (5th Cir. 1969); United
States v. Johnson, 386 F.2d 630 (3d Cir. 1967); United States v. Magnus,
365 F.2d 1007 (2d Cir. 1966); United States v. Alker, 260 F.2d 135 (3d Cir.
I 1958); cf Fed. R. Evid. Rule 404(b).
b.17. Alias used on gambling trip -- relevant to an intent to evade taxes. United
I States v. Catalano, 491F.2d268, 273 (2d Cir. 1974).
I b.18. The defendant's attitude toward the reporting and payment of taxes gener-
ally.
I United States v. Hogan, 861 F.2d 312 (1st Cir. 1988); Unized States v.
Stein, 437 F.2d 775 (7th Cir. 1971); United States v. O'Connor, 433 F.2d
752, 754 (/st Cir. 1970); United States v. Taylor, 305 F.2d 183, 185 (4th Cir.
I 1962);
~
Cir. 1986); United States v. MacKenzie, 777 F.2d 81J, 818 (2d Cir. 1985)
(willfulness inferred from the fact that each defendant had a college degree,
l
one in econ,omics and the other in business).
I
I Revised Manual for Prosecutors 265
I
b.20. Offer to bribe government agent. Barcott v. United States, 169 F2d 929,
I 931-32 (9th Cir. 1948) (attempt to bribe revenue agent).
b.21. Use of false names and surreptitious reliance on the use of cash. United
I States v. Walsh, 627 F2d 88, 92 (7th Cir. 1980); United States v. Holladay,
566 F2d 1018, 1020 (5th Cir. 1978).
I b.22. Backdating documents, such as receipts, contracts, and the like, to gain a
tax advantage. United States v. Drape, 668 F2d 22 (1st Cir. 1982),· United
I States v. Crum, 529 F2d 1380 (9th Cir. 1976); United States v. 0 'Keefe, 825
F2d 3!4 (llth c;r. 1987).
I b.23. Illegal sources of income. United States v. Palmer, 809 F2d 1504, 1505-06
(llth Cir. 1987) (sale of narcotics).
I
I
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I 266 Revised Manual for Prosecutors
I V. TEMPLATES OF TRIAL BRIEFS
I [ ] Caption
I
[ ] Information Sheet (names, addresses and telephone numbers of the investigators, parties,
I court)
I
I [ ] Theory of the Case for the Prosecution
I
[ ] Theory of the Case for the Defense
I
I [ ] Issues
I
I [ ] Stipulations
I
I [ ] Admissions
I
I [ ] Elements
[ ] Evidence:
I
Revised Manual for Prosecutors 267
I
I
[]
I [] A person, natural or juridical, is liable to that tax
I [] Evidence:
I [] Source of evidence:
I [] Such person willfully attempts in any manner to evade or defeat any tax imposed
under the NIRC or the payment thereof
I [] Evidence:
I [] Source of evidence:
I [] Facts to be proven:---~
[] Evidence:
I [] Source of evidence:
I [] Facts to be proven:
[] Evidence:
I [] Source of evidence:
I [] Facts to be proven:
}
I [] Evidence:
[] Source of evidence:
I [] Witnesses
I [] Witness name:
I
I [ ] Comment:
I [ ] Witn~ss name:
I [ ] Personal background:
I [] Outline of testimony:
I
I
[] Comment:
I [] Witness name:
I [] Personal background:
[]
I Outline of testimony:
I
I [] ~ Comment:
I
I
I
I Revised Manual for Prosecutors 269
I
[] Documentary exhibits
I [] SEC Certificate of Registration, Articles of Incorporation & By-Laws or Articles ()f
Partnership (in case of a corporation)
I [] Corporate documents showing signature/participation in the conduct of business
I [] General Information sheet showing the identity of the corporate officers as enumer-
ated in Sec. 253 (d)
I [] BIR registration (Integrated Tax System [ITS]/RDO certification) to show that the
person is a registered taxpayer
I return
[] Fraudulent Scheme: i
I [] In case of ONETT, 2 or more Deeds of Conveyance
I [] Using a dummy/ies
I
I
I 270 Revised Manual for Prosecutors
I
[] Badges of Fraud:
I [ ] intentional and substantial understatement of taxable income as shown in
the returns, financial statements, balance sheet, or deeds of conveyance
I showing receipt of income (underdeclaration of income);
[] making it appear that one has filed a return or actua!ly filing a return and
I subsequently withdraws the same after securing the official receiving seal
or stamp;
[] Caption
I
[] Information Sheet (names, addresses and telephone numbers of the investigators, parties,
I court)
I
I [] Theory of the Case for the Prosecution
I
[ ] Theory of the Case for the Defense
I
I [ ] Issues
I
I [ ]_ Stipulations
I
I
I
I 272 Revised Manual for Prosecutors
[ ] Admissions
I
I [ ] Elements
I [ ] A person is required under the Tax Code, or by rules and regulations, to pay any tax,
make a return, keep any record, or supply correct and accurate infom1ation
I
I
[ l At the time or times required by law or rules and regulations
I []
I [] Such person w!llfully fails to make such return, keep such record, or supply such
correct and accurate information, or withhold or remit taxes withheld, or refund
excess taxes withheld on compensation
I []
I [] Source of evidence:
[] Facts to be proven:
I [] Evidence:
I [] Source of evidence:
-I []
[]
Facts to be proven:
Evidence:
~t
Revised Manual for Prosecutors 273
[ ] First/Second I Final Request for Presentation of books of accounts I accounting
I records
I [] Financial Statements
Alpha Li3t from district, Withholding Tax Division or Large Taxpayer Service
I [ ] Computation of Tax Liability
I
I
[] Other important points to consider:
I
I
I
C. SEC. 257 {B)(S) - KNOWINGLY USES FAKE CERTIFICATE AUTHORIZING
I REGISTRATION
[] Caption
I
I [] Information Sheet (names, addresses and telephone numbers of the investigators, parties,
court)
I
I [] Theory of the Case for the Prosecution
I
~·
276 Revised Manual for Prosecutors
I
I [ ] Theory of the Case for the Defense
I [ ] Issues
I
I [J Stipulations
I
I [] Admissions
I
I [] Elements
I l ) Source of evidence:
I [ ] Evidence:
I [ ] Source of evidence:
I [] Facts to be p r o v e n : - - - - - - - - - - - - - - - - - - - - - -
[ ] Evidence:
I
I Revised Manual for Prosecutors 277
I
[] Source of evidence:
I
[] Facts to be proven:
I
[] Evidence:
I
I [] Source of evidence:
I [] Facts to be proven:
I [] Evidence: •
I [] Source of evidence.
I [ ] Witnesses
I [] Witness name:
I [ ] Personal background:
I [] Outline of testimony:
I
I [] Comment:
I [ ] Witness name:
I [] Personal background:
I
I
I 278 Revised Manual for Prosecutors
I
[] Outline of testimony:
I
I
I [] Com111ent:
I [] Witness name:
I [] Personal background:
I [ ] Outline of testimony:
I
I _ _ _ _ _ _ _ _ _ _ __c.__ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
I [ ] Comment:
I [ ] Docllll'.entary exhibits
[] General Information sheet showing the identity of the corporate officers as enumer-
I ated in Sec. 253 ( d)
I Transaction [ONETT])
I
I Revised Manual for Prosecutors 279
I
[ ] Contracts
I [ ] Mayor's Permit
I [] Letter of Authority
I [ ] Contracts
I [ ] Other documents to show that there was a fraudulent scheme adopted to produce or
use a falsified CAR or other forms
I
I
I
I
I 280 Revised Manual for Prosecutors
I
[ ] Other important points to consider:
I
I
I D. SEC. 258. UNLAWFUL PURSUIT OF BUSINESS
I [ ] Caption
I [ ] Information Sheet (names, addresses and telephone numbers of the investigators, parties,
court)
I
I [ ] Theory of the Case for the Prosecution
I
[ ] Theory of the Case fo~ the Defense
I
I [ ] Issues
I
I [ ] Stipulations
I
I [ ] Admissions
I
I
I
I Revised Manual for Prosecutors 281
I
[ ] Elements
I [] A person, natural or juridical, carries on any business for which annual registration
fee is imposed
I [] Evidence:
I [] Source of evidence:
I
[] Such person did not pay the required annual registration fee
I [ ] Evidence:
I [] Source of evidence:
I [ ] Facts to be proven:
I [] Evidence:
[ ] Source of evidence:
I [ ] Facts to be proven:
I [] Evidence:
[]
I Source of evidence:
I [] Facts to be proven:
[] Evidence:
I [] Source of evidence:
I
I
I
I 282 Revised Manual for Prosecutors
I
[] Witnesses
I [] Witness name:
I [] Personal background:
[] Outline of testimony:
I
I
I [] Comment:
I • (] Witness name:
I [] Personal background:
I [] Outline of testirnony:
I
I
[] Comment:
I
I [] Witness name:
i
I [] Personal background:
I [] Outline of testimony:
I
I
I
I Revised Manual for Prosecutors 283
I
[ ] Comment:
I
I [] .
Documentary exhibits
[ ] Generai Information sheet showing the identity of the corporate officers as enumer-
I 'ated in Sec. 253 (d)
[ ] Contracts
I [ ] Mayor's Permit
I registered taxpayer or that n.o payment of annual registration fee has been made
I [] Ocular Inspection
I
I
I 284 Revised Manual for Prosecutors
I
[ ] Applicable laws and jurisprudence
I
I
I [ ] Other important points to consider:
I
I
E. SEC. 267. DECLARATION UNDER PENALTIES OF PERJURY
I [ ] Caption
I [ ] information Sheet (names, addresses and telephone numbers of the investigators, parties,
I court)
I
ll• [ ] Theory of the Case for the Prosecution
[ ] Issues
[ ] Stipulations
I
I
[] Comment:
I
[] Witness mime:
I
I [] Personal background:
I [] Outline of testin:•Jny:
I [] Comment:
I
rJ Documentary exhibits
I [] Tax Return
[] Proof of income
I [] Certificate from district, region, ITS
I [] Financial Statements
I
I
I
F. SEC. 236 (J) - SECURING MORE THAN ONE TIN
I
[ ] Caption
I
[ ] lnfom1atio11 Sheet (names, addresses and telephone numbers of the investigators, parties,
I court)
I
[ ] Theory of the Case for the Prosecution
I
I }
[ ] Theory of the Case for the Defense
I
[ ] Issues
I
I
I
I'
I
I
I
[] Elements
I [] Any person, natural or juridical, is a registered taxpayer
I [] Evidence:
I [] Source of evidence:
I
[ ] Such person was assigned a TIN
I [] Evidence:
I [] Source of evidence:
I [] Evidence:
I [] Source of evidence:
I [] Facts to be proven:
I [] Evidence:
I [] Source of evidence:
I [] Source of evidence:
[]
I []
Facts to be proven:
Evidenct:
I l ] Source of evidence:
I [] Witnesses
[] Witness name:
I [] Personal background:
I
I [] Outline of testimony:
---
I
I [] Comm~nt:
I [] Witness name:
I
[] Personal background:
I
[] Outline of testimony:
I
I
I [] Comment:
I
I Revised Manual for Prosecutors 291
I [ ] Witness name:
I
[ ] Personal background:
I
[] Outline of testimony:
I
I
I [ ] Comment:
I [] Documentary exhibits
I [ ] RDO Certification to show that taxpayer is a registered with the BIR with the TIN
assigned
I
I
[] Other important points to consider:
I
I
I
I
292 Revised Manual for Prosecutors
I
I
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I
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I
SAMPLE FORMATS
I
I .
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I
I
I
Revised Manual for Prosecutors 293
I
I
NPS Sample Format "C", s. 2008
I Republic of the Philippines
REGIONAL TRIAL COURT
I National Capital Judicial Region
BRANCH - - -
MANILA
I
I Peopl~ of the Philippines,
Plaintiff, Crim. Ca:ie No. ~~~~~~~~-
I Accused.
x--------------------------------~----x
I
MOTION FOR THE ISSUANCE OF
I A HOLD-DEPARTURE ORDER
2. In order not to frustrate the ends of justice, as when the accused seeks refuge in another
I country to escape prosecution and there enjoy the fruits of his crime, it is imperative
that a hold-departure order be issued directing the Commissioner of the Bureau of
I Immigration to prevent the former from leaving the country during the pendency of the
instant case.
3. The instant motion is filed pursuant to Department of Justice Circular No. 38 dated
I August 15, 1990 which directs prosecutors to move for the issuance of a hold-departure
order in specific cases, including violations of the Tariff and Customs Code. It is not
I intended to delay the proceedings or infringe upon the accused's right to travel but for
the reasons stated above.
I
I
I 294 Revised Manual for Prosecutors
I
I WHEREFORE, it is respectfully prayed of this Honorable Court that the instant motion
be granted and that a hold-departure order be issued in the above-entitled case directing the
Commissioner of the Bureau of Immigration to prevent the accused, , from leav-
I ing the country during the pendency of the instant case.
I (Place/Date)
I (Address)
Private Prosecutor
I RTC Branch - - -
I GREETINGS:
I EXPLANATION
I Due to the distance and lack of personnel to effect personal service, the foregoing Motion
is being served upon the adverse parties via registered mail.
I
State/Asst. Provincial/Asst. City Prosecutor
I
I
I Revised Manual for Prosecutors 295
I
NPS Sample Format "D-1", s. 2008
I Republic of the Philippines
Department of Justice
I NATIONAL PROSECUTION SERVICE
I MEMORANDUM
I People versus - - - - - - -
Criminal Case No. - - - - -, RTC - - -
For:
---------~
I Date:
Attached is a copy of the Court Order dated _ _ _ _ _ and the corresponding letter to
I the Secretary of Foreign Affairs.
RECOMMEDING APPROVAL:
I Chief State/Regional State/Provincial/City Prosecutor
I APPROVED:
I Secretary
Encls.: As stated.
I
I 296 Revised Manual for Prosecutors
NPS Sample Format "D-2", s. 2008
I
I · (Date)
I Dear Secretary _ _ _ __
I
Very truly yours,
I
I Chief State/Regional State/
Provincial/City Prosecut::>r
I I
Attachment: As stated
~
I
I Revised Manual for Prosecutors 297
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..
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I 298
Revised Manual for Prosecutors
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I
I APPENDICES
I
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I
Revised Manual for Prosecutors 299
I
I Appendix "A"
I Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN
Department ofJustice
I Manila
In the interest of the service and pursuant to existing laws, Sec. 3 of the New Rules on
I Inquest, which provides for the termination of inquest proceedings within the period prescribed
in Article 125 of the Revised Penal Code, as amended, shall not be applicable when the persons
arrested without the benefit of a warrant of arrest issued by the court are r,hildren, as defined under
I Republic Act No. 9344, otherwise known as the "Juvenile Justice and Welfare Act of 2006" who
shali Le treated as follows:
I 1. In cases of warrantless arrest involving a child in conflict with the law (CICL) who is
above fifteen ( 15) but below eighteen ( 18) years of age, and within eight (8) hours from
I such arrest, the law enforcement officer concerned shall tum over custody of the child
to the Local Social Welfare Development Officer (LSWDO) for the determination by
the latter of the presence or absence of discernment of tht: child (Rule 25,lst Par., !RR
I ofRA 9344).
2. The policy behind the juvenile justice system is, as much as possible, to prevent the
I CICL from being brought within the ambit of the judicial system; a fact which is entirely
opposite to the policy un•iJerlying Article 125 of the Revised Penal Code, as amended.
I 2.1. Hence, the turning over of the custody of the child to the LSWDO and the latter's
custody of the child, shall not be considered a detention; for which reason, in all
I cases of warrantless arrest involving CICL, Article 125 of the Revised Penal Code
shall not be applicable.
I 3. Cases erroneously filed by the law enforcement officer directly with the prosecution
for inquest investigation shall be dismissed without prejudice to the refilling of the
same, if so warranted:
I a. Where the offense charged is punishable by imprisonment of not more than sis
I (6) years, the prosecutor shall direct the law enforcement officer to tum over the
a. I .Pending diversion proceedings, the LSWDO shall release the child to his/her
I parents, or in the latter's absence, to the persons or agencies authorized by the
law to take custody of the child.
I parents, the c.omplaint maybe refiled, but shall undergo the regular preliminary
investigation.
I b.1. The case may b revived for inquest proceeding should the child be found to
have acted with discernment
I 4. Wi~hin twenty four (24) hours from receipt of the LSWDO's finding of discernment,
the law enfo:cement officer concerned shall bring the child to the prosecutor for inquest
I proceedings. The LSWDO shall accompany the child to provide the needed assistance
to him/her.
I 5. The CICL ~ubject of the inquest proceedings may avail of his right to Formal prelimi-
nary investigation, duly assisted by counselor in the latter's absence, by his/ her parent,
or guardian or the LSWDO or representative form the Barangay Council for the protec-
I tion of the children, or any other government agency or non-government organization
having custody of the child for and in behalf of the LSWDO.
I 6. Where the child acted without discernment, the LSWDO shall notify the law enforce-
ment officer and the offended party or the complainant (in case of victimless crimes), of
I such finding. The LSWDO shall release or cause the release of the child from custody,
if within five (5) days from such notice, the offended party or the complainant does
not contest the finding of absence of discernment of the child. Upon the filing by the
I offended party or complainant with the LSWDO of the notice to contest the latter's
finding, the child shall continue to be under the custody of the LSWDO or any other
authorized agency in whose custody the child has been delivered.
I 7. Within fifteen (15) days from receipt of the finding of absence of discernment, the of-
fended party or complainant may file an action or appeal with the prosecutor question-
I ing the finding of the LSWDO. However, in cases punishable by reclusion perpetua,
life imprisonment or death, the finding by the LSWDO of lack of discernment shall be
I the subject of an automatic appeal to the investigating prosecutor and it shall be the
I 8. In cases where automatic appeal does not apply, and the LSWDO's finding of absence
of discernment is not contested within the fifteen (15) day period, the law enforcement
officer shall dismiss the case, and the LSWDO shall release or cause the release of the
i..
I child from custody, but shall subject the child to an intervention program.
l.
9. Upon receipt of the offended party's or the complainant's appeal from the LSWDO's J
I finding of absence of discernment of the child, th~ prosecutor shall conduct his/her own
assessment on the child's discernment or absence, thereof.
I 9 .1 For purposes of such assessment, the prosecutor shall require the law enforcement
officer to forward the records of the case to him/her; and conduct ;::larificatory
I and to aid him/her in his/her assessment, require the LSWDO to forward to him/
her a copy of the case study on the child, if any or the records of the LSWDO's
examination on the child, supporting its finding of absence of discernment of the
I child.
9.3 If the child acted without discernment, the prosecutor shall dismiss the case and
I order the release of the child and the conduct of the intervention by tile LSWDO.
9.4. If the child acted with discernment, the prosecutor shall conduct the inquest pro-
I ceedings without prejudice to the child's right to a p!"e!iminary jnvestigation.
I
I
I
I
I ·302 Revised Manual for Prosecutors
I
Appendix "B"
I Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN
Department ofJustice
I Manila
I 26 June 2003
I In the interest of public service and pursuant to existing laws, effective upon issuance
I hereof and until otherwise ordered, the dismissal of all cases, whether on inquest/preliminary
investigation or on appeal, filed for violation of RA 9165 and involving the maximum penalty of
life imprisonment to death, shall be subj(,ct to automatic review, as follows:
I 1. For cases dismissed by City and Provincial Prosecutors, by the Regional State Prosecutor
having jurisdiction over the Prosecution Office concerned; and
I 2. For cases dismissed by the Chief State Prosecutor, Regional State Prosecutors and City
Prosecutors of cities in Metropolitan Manila, by the Secretary of Justice.
I The entire record of the case shall be elevated to the reviewing authority concerned within
three (3) days from issuance of the resolution dismissing the complaint or appeal, as applicable.
I The automatic review shall be summary in naturt:: and shall be completed within thirty (30)
days from receipt of the case record.
I This Department Circular shall apply to covered cases which have been dismissed prior to
the issuance hereof if such dismissal has not yet attained finality as of the date of this Circular.
I This Department Circular amends or modifies all prior issuances inconsistent herewith.
,,.,
I
(Sgd.) SIMEON A. DATUMANONG
I Secretary
I 28 August 1991
I In the interest of public service and for the efficient delivery of prosecutorial services, the
I following appointed Regional State Prosecutors:
I Tacloban City
I
I 3Q4 Revised Manual for Prosecutors
I
REGION IX WILFRIDO M. YU
I Zamboanga City
I 2. Exercise immediate administrative supervision over all provincial and city prosecutors
and other prosecuting officers of provinces and cities within the region;
I 3. Investigate and/or prosecute, upon the directive of the Secretary of Justice, specific
criminal cases filed within the region.
I 4. Appoint personnel to positions in the first level and casual and seasonal employees as
may be necessary; and exercise disciplinary actions over them in accordance with the
Civil Service Law; and approve transfer of subordinate personnel within the region
I (E.0.292, s. 87; P.D. 1275);
I 5. Approve requests for sick, vacation and maternity leaves of absence with or without
pay, for a period not exceeding one year; for overtime services; for permission to teach,
exercise their profession or to engage in business outside of office hours in accordance
I with standards and guidelines of the Civil Service Commission; for official travel
within the region for periods not exceeding thirty days; and for claims for benefits
under existing law (P.D. 1275 and E.O. 292);
I 6. Approve anendance of personnel in conference, seminars and non degree training and
programs "vithin the region (E.O. 292);
I 7. Prepare the budget for the approval of the Secretary of Justice and administer the same
I (P.D. 1275 a:
I
I Revised Manual for Pre secutors 305
I
8. Approve requisition for supplies, materials and equipments as well as books and
I periodicals, and other items for the region, in accordance with the approved supply
procurement programs (E.O. 292);
I 9. Negotiate and conclude contracts for services or for furnishing supplies, materials and
equipment for amounts not exceeding P50,000.00 for each quarter (P.D. 1275);
I 10. Monitor the submission of all reports required by the Department of Justice in rela-
tion to the operations and field activities of the prosecution offices within the region
I (Deplirtment Order No. 150, s. l739);
l 1. De5ignate a prosec:itor from another provi:::ice or city within the region to investigate
I and prosecute a case in instances where parties may question the partiality or bias of
prosecutors of a particular provincial or city prosecution office;
I 12. Recommend to the Secretary of Justice the appointment and/or promotion of any pro-
vincial or city prosecutor or their assistants within the region;
I 13. Resolve with finality appeals from resolutions of dismissal of provincial/city pros-
ecutors and their assistants within the region, provided that the case is one where the
I offense charged falls within the jurisdiction of Metropolitan Trial Courts, Municipal
Trial Courts, and Municipal Circuit Trial Courts or is punisliabk with imprisonment of
not exceeding four (4) yea!"s :md two (2) months, or a fine not more than four thousand
I pesos, or both such fine and imprisonment;
Justice who shall, after review thereof, submit the appropriate recommendation to the
I Office of the Presi<fent: Provided, that where the Secretary of Justice finds insufficient
grounds for the filing of charges he may render a decisior. of dismissal thereof. (P.D.
1275);
I 15. Investigate administrative complaints against subordinate personnel of the region
and submit his recommendations thereon to the Secretary of Justice who shall have the
I authority to render decision thereon;
I 16. Coordinate with the regional offices of the other departments and bureaus/agencies
under the Department of Justice and with local governments, the police and military
units in the region (P.D. 1275); and
I 17. Perform such other duties and functions as may be provided by law or further delegated
head of agency or other proper authorities concerned (E.O. 292).
I In the meantime that the Office of the Regional State Prosec~tor is without a complement
of support staff personnel, the Regional State Prosecutor is hereby authorized to detail with his
I office such number of personnel that may be needed from adjacent Provincial/City Prosecution
I
(Sgd.) SILVESTRE H. BELLO III
I Acting Secretar; of Justice
I Copy furnished:
All concerned.
I
I
I
I
I
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I
I
I
I
I
I Revised Manual for Prosecutors 307
I
Appendix "D"
I Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN
I Department ofJustice
Manila
I
February 20, 1992
I
DEPARTMENT ORDER NO. 54
I SUBJECT: Amending Department Order No. 318, Series of 1991, by specifying the instances
where a Regional State Prosecutor can designate an Acting City or Prov ir.cial Prosecutor
I to handle the investigation/prosecutio1i of a particular case.
I -
In the interest of public service for the efficient delivery ofprosecutori~l services and pur-
suant to existing laws, paragraph 11 of Department Order No. 318, Series 1991 i~ hereby amended
I to read as follows:
I of consanguinity or affi.nity."
This Order takes effect immediately and shall remain in force until further orders.
I
I (Sgd.) EDUARDO G. MONTENEGRO
Acting Secretary
I Copy furnished:
I All concerned.
I
I
I 308 Revised Manual for Prosecutors
I
Appendix "E"
I Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN.
I Department ofJustice
Manila
It has come to the attention of this Office that decision in several cases wherein the penalty
I of death had been imposed by the trial court were modifi~d by the Supreme Court and lowered to
reclusion perpetui..i due to the failure of the prosecutors to allege in the informations or complaints
Thus, in the case of People vs. Ramos, 296 SCRA 559, where the prosecutor failed to allege
I in the information the relationship of the victim under 18 years of age with the offender who was
her father, the Supreme Court "call (ed) the attention of the members of the prosecution service
and peace officers charged with the preparation of informations and complaints, that the attendant
I circumstances provided by Republic Act No. 9659 must be specifically alleged in an information
for rape in order that they may properly qualify the crime to the penalty specially prescribed by
the law." See also the cases of People vs. Gallo, G.R. 124736, Sept. 29, 1999, citing People vs.
I Garcia, 281 SCRA 463.
i
I It has also been observed that prosecutors have been negligent in failing not only
to cite qualifying circumstances but also to prove aggravating circumstances attendant to
the case, thus, instead of securing penalties in the maximum period, only the minimum or
I medium periods are imposed by the courts. There is a need to cite aggravating circumstances
in the information or complaint even if they can be proved in court, if not alleged, for the
following reasons: First. if the accused pleads guilty during arraignment, there is no need for
I the prosecution to present evidence in support thereof. Second. the trial prosecutor may not
be the same prosecutor who conducted the preliminary investigation and therefore, he may
not be aware of the aggravating circumstances established in said investigation. The allega-
I tion of the aggravating circumstances in the information or complaint will therefore serve as
a reminder to the trial prosecutor in his presentation of evidence.
I Copy furnished:
All concerned.
I
I
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I
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I
310 Revised Manual for Prosecutors
I
I.,
Appendix "F"
I Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN
I Department ofJustice
Manila
I May 3, 2000
I
DEPARTMENT CIRCULAR NO. 47
I SUBJECT: PREPARATION OF A TPJAL GUIDE
I In the interest of the service and for the purpose of promoting efficient and effective admin-
istration of justice, the preparation of a trialg_~id~ is henceforth required in the prosecution of all
I cases involving heinous and grave felonies or offenses.
I The prosecutor assigned to prosecute the case shall prepare the trial guide. The trial guide,
as accomplished, shall be made 1 perr.1anent part of the prosecution's records of the case. Its
r>reparation shall be in accordance with the attached matrix.
I Regional, Provincial and City Prosecutors, and their assistants, and the State Prosecutors in
the Office of the Chief State Prosecutor are enjoined to strictly comply with this Circular.
I This Circular takes effect immediately and shall remain in force until revoked.
I
I (Sgd.) ARTEMIO G. TUQUERO
Secrel:ary
I
I
I
I
I
I Revised Manual for Prosecutors 311
I
TRIAL GUIDE
I
A. The Case
I I. A brief statement of the facts of the case.
I. The names of prosecution witnesses and the synopsis of the facts to be testified by each.
I II. A list of exhibits to be presented and marked in court.
I III. A list of aggravating, mitigating, qualifying or other circumstances that are present in the
case.
II. The names of probable defense. Witnesses and synopsis of the facts to be testified by each.
I III. A list of probable exhibits for the defense.·
I
I
I
I
I
I 312 Revised· Manual for Prosecutors
I
Appendix "G"
I
Republika ng Pilipinas
I KAGAWARANNGKATARUNGAN
Department ofJustice
I Manila
I 1. The DOJ is not precluded from conducting any investigation of cases involving
violations of penal laws, even if the same involves public officers and/or employ-
ees. - Sec. 13 Article XI of the con.stitution, Sec. 15 of the Ombudsman Act of 1989
I and Sec. 4 of the Sandiganbayan Law, as amended, do not grant to the Honorable
Ombudsman exclusive jurisdiction to investigate offenses committed by the public of-
I involving violations of penal laws under Sec. 1 of P.D. 1275-which authorities are fur-
ther confirmed by Secs. 2 and 4 Rule 112 of the Revised Rules on Criminal Procedure.
Hence, the power to investigate or conduct preliminary investigation on charges against
I
I Revised Manual for Prosecutors 313
I
public officers or employees may be exercised by provincial or city prosecutors or their
I assistants, either in their regular capacities or as deputized Ombudsman prosecutors.
I 3. The authority to investigate charges of illegal acts or omissions on the part of pub-
lic officials is a shared or concurrent authority on the part of the Ombudsman and
th~s Department.- The authority of the Ombudsman to investigate any illegal act or
I omission of any public official is not an exclusive authority but rather a shared or con-
current authority in respect of the offense charged. The case of Sanchez V. Demetriou,
227 SCRA 627, citing Aguinaldo v. Domagas, GR No. 98452, September 26, 1991
I and Delosa v. Domingo, 191 SCRA 545 (1990), even held that the "non- involvement
of the office of the Ombudsman [in the present case] dces not have any adverse legal
consequences upott the authority of the [panel of] prosecutors to file and prosecute the
I information and amended information".
I 5. The Ombudsman may, in the exercise of its primary jurisdiction, take over at ~my
stage only in cases falling within the exclusive jurisdiction of the Sandiganbayan.-
I The Ombudsman, in the exercise of its primary jurisdiction over cases cognizable by
the Sandiganbayan, may take over, at any stage, from any investigating agency of the
government, the investigation such cases.
I For proper guidance of all concerned, and in order to prevent any undue delay caused
by issues of jurisdiction between this Department and the Ombudsman, it is thereby clarified
I pursuant to existing jurisprudence, laws, rules and regulations, that all prosecutors have legal
authority -to take cognizance of, and conduct preliminary investigation/inquest proceedings on,
all complaints filed before them involving violations of penal laws, regardless of whether or
I not the respondents therein are public officials and/or employees; PROVIDED That, for cases
cognizable by the Sandiganbayan in the exercise of its original jurisdiction Sec. 4 (a), (b), and
I (c) of RA 7975, as amended, the ombudsman may take over at any stage of the investigation, in
line with its primary jurisdiction under the last sentence Sec. 15 (1) ofRA 6670 conformably with
ruling in Honasan vs. Department of Justice (DOJ) Panel of Investigating Prosecutors.
I In Accordance with Sec. 4, Rule 112 of the Revised Rules on Criminal Procedure, all resolu-
tions on preliminary investigation for cases involving offenses cognizable by the Sandiganbayan
I in the exercise of its original jurisdiction, shall within five (5) days from the issuance thereof,
be forwarded together with the case records to the Ombudsman or his deputy. In such cases, no
I
I 314 Revised Manual for Prosecutors
I
complaint or information maybe filed or dismissed by an investigating prosecutor without
Existing guidelines, procedure and issuance intended to preserve and enhance the joint and
I mutual coordination between the office of the Ombudsman and the Department of Justice shall
remain effective and consistent with this Circular and applicable jurisprudence, laws, rules and
regulations.
I This Circular takes effect immediately, and shall remain in full force until further orders.
I
I (Sgd.) RAUL M. GONZALEZ
Secretary
I Copy furnished:
All ·concerned.
I
I
I
I
I
I
I
I
I
I
I
Revised Manua~ for Prosecutors 315
I
I
Appendix "H"
I GUIDE FOR MEDIA PRACTITIONERS ON THE REPORTING AND
I COVERAGE OF CASES INVOLVING CHILDREN
Rationale
I One of the landmarks of a democratic society is the access to information on matters of
public concern. Thus, Article III, Section 7 of the Philippine Constitution provides: "The right
I of the people to information on matters of public concern shall be recognized. Access to official
records, and to documents, and papers pertaining to official acts, transactions or decisions, as well
I as to government research data used as basis for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law".
I As a cornerstone in a democratic society, i\1edia provides the means for a free market
of ideas. Access by media to information is given wide latitude most especially when it comes
to matters of governance, public and political affairs. However, it must be noted that the very
I · Constitutional provision recognizing the righ! to access to information likewise stat~s that the right
is not without limitations. Access to information is "subject to limitations as may be provided by
law". One such limitation is the access to information, and the publication thereof, on matters
I pertaining to children.
The challenge tc media practitioners is to carry out their duty of informing the public ef-
I fectively and at the same time being aware of the need to protect and enhance the rights of the child
without in any way compromising the freedom of expression or undermining their independence
I as journalists. They are in the position to assess the efforts along this line and challenge everyone
to comply with domestic laws and international commitments on the rights of the child.
I This guide is intended to rais.e media awareness on issues concerning the rights of the child
and at the same time reinforce journalistic standards, through self- regulation, and contribute.to
the protection and promotion of these rights. Existing laws passed protecting the child provides
I for confidentiality. The confidentiality clauses are meant to protect the child's right to privacy and
to p~e:ent the child from tra~a, social stigma, land further suffering arising from inappropriate
pubhc1ty or approaches to media coverage.
I
With the passage of new laws relating to children, the Special Committee for the
I Protection of Children saw the need to update the guidelines it formulated in 2000, consistent
with the provisions provided in the laws.
The 1987 Constitution declares that the State recognizes the sanctity of family life and shall
I protect and strengthen the family as a basic institution. The natural and prj~ary right and duty of
parents in the rearing of the youth for civic efficiency and the development of moral character shall
receive the support of the Government.
I
I , 316 Revised Manual for Prosecutors
I
The State recognizes the vital role of the youth in nation-building and shall promote and
I protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the
youth patriotism, nationalism, and encourage involvement in public and civil affairs.
I The State, in the exercise of parens patriae, has the inherent duty to defend and care for
its citizens, children included, considering the special care they need vis-ii-vis the right to press
freedom and the right to expression.
I Children need special safeguards and care due to their size, vulnerability and young age.
I Every effort must be exerted to ensure that children are accorded special protection to enable them
to grow and develop in an atmosphere of peace, dignity, tolerance, freedom, equality and solidar-
ity. The best interest of the child shall be the primordial and paramount concern of everyone.
I The United Nations has recognized that children need special care and protection. The
Convention on the Rights of the Child, to which the Philippines is a state party, recognizes that
I a child's rif,{1ts need to be protected and enhanced, among these, the right to privacy, honor and
reputation either as a victim or in conflict with the law.
I There are groups of children who need special protection. Children as victims of abuse and
those who are in conflict with the law need to be shielded from inappropriate media coverage and
I unwarranted publicity. Reporting of their cases should be done in a manner that would promote
thei: best interest.
I Legal Basis
•' Presidential Decree No. 603 (Child and Youth Welfare Code) pri:wides for the destruction
I of the records of the case such as files of the National Bureau of Investigation, any police
department and any other government agency, after the charges have been dropped.
I • Republic Act No. 7610 (Special Protection of Children Against Child Abuse, Exploitation
and Discrimination Act) requires "stnct confidentiality" on the identity of child abuse vic-
tims and to all records pertaining to the case.
I
• Republic Act No. 8369 (Family Courts Act of 1997) provides that all hearings and concili-
I ation of the child and family cases shall be treated in a manner consistent with the promotion
of the child's and family's dignity and worth, and shall respect their privacy at all stages of the
proceedings. It further provides for the confidentiality of all records of cases and the identity
I •
of the parties involved therein unless necessary and with court authority.
• Republic Act 9165 (Comprehensive Drugs Act of 2002) provides for the confidentiality of
I records of children under both the voluntary and compulsory submission program or those
of children discharged after compliance with conditions of suspended sentence. It further
I
I Revised Manual for Prosecutors 317
I
• Republic Act No. 9208 (Anti-Trafficking in Persons Act of 2003) provides for confidential-
I 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.
I • Republic Act No~ 9262 (Anti-Violence Against Women and Their Children Act of 2004)
provides that all records pertaining to cases of violence against women and their children shall
I be c.onfideritiaL. and the right to privacy of the victim shall be respected. \\'hoeverpublishes
·or ca~ses 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
I member, without the latter's consent shall be liable to the contempt power of the court.
• Republic Act No. 9344 (Juven:le Justice and \VelfareAct of 2006) mandates that all records
I and proceedi.ngs involving children in conflict with the law from initial contact until final
disposition of the case shall be considered privileged and confidential.
I The said laws/rule provides for penal sanctions for any violation of the abovementioned
confidentiality provisions.
This guide is primarily intended for media practitioners in the reporting and coverage of rns~s
I involving cbilc!ren.
A. For purposes of this guide, the term "media practitioners" refer to all persons who are
I 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
I hosts, program content producers and directors and film content producers and directors.
B. The child refers to a person below eighteen (18) years of age or one who is eighteen ( 18)
I years of age or over but is unable 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 the following:
I a. Child Victim - is a child who suffered from abuse, exploitation, neglect and discrimination
(e.g. sexual, physical, emotional, verbal, psychological, economic). The term includes
I Children Involved in Armed Conflict (CIAC).
b. Child in Conflict with the Law (CICL) - refers to a child who is alleged as, accused of, or
adjudged as, having committed an offense under Philippine laws ·
I c. Child Witness - is any person who at the time of giving testimony is below the age of
eighteen ( 18) years
I ·...4 "
I
I 318 Revised Manual for Prosecutors
I Principles and Gulde
I Principle 1
I Children have an absolute right to privacy. The highest ethical and professional stan-
dards in reporting and covering cases of children must be observed such that in all pub-
licity concerning children, the best interests of the child shall be the primary concern.
I Guide
I 1. In the best interest of the child, the identity of a child victim of abuse, child witness, CIAC or
a CICL shall not be disclosed whether directly or indirectly. No informatioP. that would lead
I to the identity of the child or any member of his/her family shall be published or broadcast.
2. Photographs, images, or video footage of the face or any distinguishing feature or informa-
I tion of a child victim. of abuse, child witness, CIAC or a child in conflict with the law
including his or her family members shall not be taken, published, or shown to the public in
any manner.
I 3. Exception to this are missing children, children looking for their _parents or relatives or any
other similar cases where revealing the identify, is for the best interest of the child.
I 4. The disclosure of any private or graphic detail of the case, including the medico-legal find-
5. The access, use or dissemination as well as the provision of records of a child shall be
I subject to sanctions under existir.g laws. Records, materials and other evidence recovered or
confiscated during rescue operations of child victims are considered confidential when they
form part of police, prosecution or court records.
I 6. In the best interest of the child, interview(!;) of a child victim. of abuse, child witness, child
involved in armed conflict and a child in conflict with the law should be conducted only
I when the child interviewee is assisted by a psychologist or a social worker known to her or
him.. In this case, the media practitioner should take into consideration the lev~l of com.fort
I of the child when asking questions and the length of time spent in the interview. This is to
prevent the child from. further traum.atisation or victimization.
I 7. In reporting or covering cases on abuse and exploitation involving children, media practi-
tioners are encouraged to discuss the issues surrounding the case rather than the personal
circumstances of the victim..
I
I
I
Revised Manual for Prosecutors 319
I
I
Principle 2
I The child's dignity must be respected at all times.
I Guide
I 1. The _use of sexualized images of children is a violation of the child's rights. Obscene or
pomographic materials, videos, photographs and other related media should not be subjects
of circulation, publication or broadcast as it is a violation of the right of the child to dignity
I and self-worth.
2. Crimes of violence by or against children must be reported factually and seriously without
I passing judgment, stereotyping, or sensationalism.
3. There should be a conscious effort to avoid sensationalism and exploitation of ~he child in
I need of any assistance. The release of the child's identity to elicit financial support or aid for
the child's medical care is strongly discouraged.
I 4. The personal circumstance of the child which will tend to sensationalize the case must be
avoided. The child's life should not be treated as a movie.
I
Principle 3
I Children have the r!ght to be heard. Access to medfa by children should be encour-
aged.
I Guide
I 1. Whenever possible, give children access to media for them to be able to express their own
opinions without inducement of any kind, in any manner or procedure affecting them.
I 2. When the child is the source of crime-related news or information, his/her jdentity should be
protected at all times. }
I
Principle 4
I The mass media is a partner in the promotion of child rights and the prevention of
out with sensitivity and appreciation of the vulnerable situatfon of children, so that
children are not re-victimized or re-traumatized.
I
I . 320 Revfsed Manual for Prosecutors
I Guide
I 1. On media coverage of specific cases, the present as well as the long-term implications for
the child's recovery, rehabilitation and reintegration shall be taken into consideration by all
I those involved in deciding on and implementing the said approaches to media coverage.
2. It is the responsibility of the media to verify the status of an organization which purports to
I speak or represent the child, before any airing, broadcasting or publication in behalf of the
child. The organization must be duly accredited, registered or licensed by the Department of
Social Welfare and Development (DSWD) or by any appropriate government agency.
I 3. Media is urged to undertake investigative journalism and to report on violations of children's
I rights, and other issues relating to children's safety, privacy, security, education, health and
social welfare and all forms of exploitation ar.d discrimination.
I 4. There are :!;OVernment agendes responsible for the care of children such as the Department
of Social Welfare and Development (DSWD), or the local social welfare offices, Department
of Labor and Employment (DOLE), Movie and Television Review and Classification Board
I (MTRCB), including private organizations or institutions which have adopted and are
implementing guidelines on dealing with child sensitive coverage, reportage, and access to
media. Media organizations are urged to develop their own internal policies and procedures
I aligned and consistent with these guidelines, including monitoring systems and protection
mechanisms on the erigagement of children in any media program to ensure that children are
I free from physical and psychological risks and that they are not exploited for commercial
purposes.
I REFERENCES:
l
I RA No. 8369, Sec. 12; RA No. 9165; RA No. 9208, Sec. 7; RA No. 9262, Sec. 44; RA No.
9344, Sec. 23; Supreme Court Rule on the Examination of Child Witnesses and the UN
Convention on the Rights of the Child.
I
I
I
I
Revised Manual for Prosecutors 321
I
I ADDITIONAL REFERENCE
I International Federation of Journalists' Draft Guidelines and Principles for Reporting on Issues
Involving Children (Adopted at Recife, Brazil, 2nd May 1998)
I All journalists and media professionals have a duty to maintain the highest ethical and pro-
fessional standar~ and should promote within the industry the widest possible dissemina-
I tion of information about the International Convention on the Rights of the Child and its
implications for the exercise of independent journalism.
I Media organizations should regard violaticns of the rights of children and issues related to
children's safety, priva.cy, security, their education, health and social welfare and all forms
of exploitation as important questions for investigation and public debate. Children have an
I absolute right t0 privacy, the only exceptions being those explicitly set out in these guide-
lines. .
I Journalistic activity which touches on the lives and welfare of children should always be
carried out with appreciation of the vulnerable situation of children. Journalists and media
I organizations shall strive to maintain the highest standards of ethical conduct in reporting
children's affairs and, in particular, they shall:
I • Strive for standards of excellence in terms of accuracy and .sensitivity when reporting on
issues involving children;
I • Avoid programming and publication of images which intrude upon the media space for
children with information which is damaging to them;
I • Avoid the use of stereotypes and sensational presentation to promote journalistic material
involving children;
I
322 Revis.E;?a Manual for Prosecutors
I
I
• Use fair, open and straight forward methods for obtaining pictures and whenever possible,
I obtain them with the knowledge and consent of children or a responsible adult, guardian
or care giver;
I • Verify the credentials of any organization purporting to speak for or represent the interest
of children;
I • Not make payment to children for material involving the welfare of children or to parents
or guardians of children unless it is demonstrably in the interest of the child;
I Journalists should put to critical examination the reports submitted and the claims made by
I Media should not consider and report the conditions of children only as events bM should
continuously report the process likely to lead or leading to the occurrences of these events.
I
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Revised Manual for Pro~ecutors 323
I
I
Appendix "I"
I
VALIDATION SESSION PARTICIPANTS
I t•t VALIDATION SESSION
City Garden Suites, Mabini, Manila
I 6-7 March 2008
Region 1
I 1. ARSP- Zenaida M. Ferrer - ORSP
I 2.
3.
CP Myra Sheila M. Nalupta-Bama-OCP Batac City
CP Emmylou Rubang-Mangasar- OCP Candon City
4. Admin Officer V Elisa A. Daodao-OPP Benguet
I 5. AdminAide IV Jemalyn D. Palateo-ORSP
II
Region
I 6. SP II Ronnel B. Nicolas - ORS?, Tuguegarao City
7. PP Amador T. Arao - OPP Cagayan
I 8. 2nd A.PP Dinahlyn S. Gelacio - OPP Isahela
9. lst ACP Mercedes P. Bafiez - OCP Tuguegarao City
I III
Region
Region IV
I 22. PP Josephine Caranzo-Olivar- OPP Mindoro Oriental
23. CP Miguel Noel T. Ocampo - OCP Calamba City
I 24. CP Alfredo P. Juarez, Jr. - -OCP Tayabas City
25. Admin Officer V Efoisa 8. Briones - ORSP
I 26. Admin Officer V Rizalina R. Espina - OCP Batangas City
Region V
I 29. RSP Mary May B. De Leoz-ORSP
30. SP II Maria Visia 0. Maldo - ORSP
I 31. SP II Joyce 0. Guerrero - ORSP
32. PP Regina Coeli F. Gabito-OPP Sorsogon
I
315
I Revised Manual for Prosecutors
I
Region VIII
I 19. RSP Francisco Q. Aurillo, Jr. - ORSP
20. ARSP Bibiano C. Reforzado - ORSP
I 21. PP Cesar M. Merin - OPP Leyte
22. APP Agustin M. Avafon - OPP, Western Samar
I 12 June 2008
I
I . 326 Revised Manual for Prosecutors
I
OCP Makati City
OCPManila
I 23. 2nd ACP Antonio R. Rebagay
24. 2nd ACP Joselito D.R. Obejas
I 25. Ms. Estela N. Dela Cruz
OCPRizal
I 41. PP Edgardo C. Bautista
42. APP Gloria M: De Guzman
I 43. Ms. Emily R. Trajano
OCPSanJuan
I 46. CP Tomas T. Ricalde
47. ACP Myrna B. Binalay
I 48. Ms. Noemi G. Reyes
I
I 4th VALIDATION SESSIONS
Dnvao Waterfront Hotel, Davao City
26-27 June 2008
I Region IX
I 1.
2.
RSP Wilfrido M. Yu - ORSP
CP Roselyn M. Mamon - OCP Zamboanga City
3. CP Jaime M. Machutes- OCP Isabela City, Basilan
I 4. PP Jeric S. Kagaoan - OPP Ipil, Zamboanga Sibugay
328 Revised Manual for Prosecutors
I
I
Region X
I I 0.
11.
PP Ruben L. Pasamonte - OPP Davao del Norte
PP _.<\rtemio A. Tajon - OPP Davao del Sur
I 12.
13.
CP Raul B. Bendigo - OCP Davao City
CP Janet Grace D. Fabrero -OCP Panabo City
14. CP Noel P. Palma - OCP Tagum City
Region XII
I 16. RSP Maranao C. Danganan - ORSP
17. PP Emmanuel S. De Peralta - OPP Sultan Kudarat
I 18. ACP Renato P. Consehit - OCP 1acurong City
19. CP Al P. Calica - OCF Kidapawan City
20. 1st APP Felipe Vicente A. Velasco - OPP Sarangani Province
I Region XIII
I
I
I
Revised Manual for Prosecutors 329
I
I
INTERAGENCY ROUNDTABLE DISCUSSIONS
I Camp Crame, Quezon City
20 June 2008
I Supreme Court
I Ombudsman
I
Office of the Special Prosecutor
I 5. Pros. Ma. Hazelina T. Militante
6. Atty. Joetferson B. Toribio
I
Office of the Solicitor General
I 7. Sr. State Solicitor Luis F. Simon
8. Atty. Gloria Victoria Taruc
I
I Commission on Elections
I
I
Philippine National Police
•!
,~
Philippine Drug Enforcement Agency
II
Bureau of Customs
I i~ 24. Dep. Comm. Reynaldo V. Umali
25. Dir, Balmyrson M. Valdez
I 26. Atty. Tristan Langcay
27. Atty. Erwin Mendoza
I
I
Commission on Human Rights
I ..
I
Bureau of Internal Revenue
I 36. Atty. Rosario M. Padilla
I Department of Justice
I
I
I
I
I
I.
I
I
I
I 332
Revised Manual for Prosecutors
I
'".