Presented by: AEJAY VILLARUZ BARIAS PCU College of Law Definition Under Rule 112, Sec 1 of the Rules of Court:
Preliminary investigation is “an inquiry or a
proceeding the purpose of which is to determine whether there is a sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial” “It is a statutory and substantive right accorded to the accused before trial. Denial thereof amounts to lack of due process”
(Villaflor vs Vibar, 349 SCRA 194)
Preliminary Investigation is required to be conducted BEFORE the filing of a complaint or information for an offense where the penalty prescribed by law is at least 4 years, 2 months and 1 day without regard to the fine. Specific Purpose Callo-Claridad vs Esteban, 694 SCRA 185,198-199, Mar. 30,2013 To determine whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof;
To preserve the evidence and keep the witnesses
within the control of the State.
To determine the amount of bail, if the offense is
bailable. Ledesma vs CA, 278 SCRA 656, 673-674 To free a respondent from the inconvenience, expense, ignominy and stress of defending himself in the course of a formal until the reasonable probability of his guilt has been passed upon in a more or less summary proceeding by a competent officer designated by law for that purpose. Nature of Preliminary Investigation Conduct of Preliminary Investigation is a function that belongs to the Public Prosecutor. The court cannot interfere with the determination of Probable cause in the absence of grave abuse of discretion. Right to have a Preliminary Investigation before trial is STATUTORY rather than CONSTITUTIONAL. Preliminary Investigation is a mere inquiry or a proceedings. Preliminary Investigation is not the occasion for the full & exhaustive display of parties’ evidence Preliminary Investigation: Personal Statutory Rights The right to preliminary investigation is a personal right covered by statute and may be waived expressly or by implication.
Absence of preliminary investigation does not
affect the jurisdiction of the court or invalidate the information if no objection was raised by the accused. Remedies of the accused if there was no Preliminary Investigation: Refuse to enter a plea upon arraignment and object to further proceedings upon such ground Insist on a preliminary investigation File a certiorari, if refused Raise lack of preliminary investigation as error on appeal File for prohibition Preliminary Investigation VS Preliminary Examination/ Inquiry Preliminary Investigation Preliminary Examination
Executive Department Judicial Department
Public Prosecutor Judge
Whether probable cause exist & to
charge to those believed to have To ascertain whether a warrant of committed the crime as defined by arrest should be issued against the the law & thus, should be held for accused trial Instances when probable cause needs to be established To determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial. (Secs.1 & 3, Rule 112) To determine whether a warrant of arrest or commitment order shall be issued and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice (Secs.5 & 8, Rule 112) By a peace officer or a private person making a warrantless arrest. (Sec.5b, Rule 113) By the Judge, to determine whether a search warrant shall be issued. ( Sec.4, Rule 126) Officers Authorized to conduct a Preliminary Investigation: Provincial or city fiscal and their assistants
National and regional state prosecutors
Such other officers as may be authorized by law such as: the COMELEC, Ombudsman and Presidential Commission on Good Governancev Filing of the complaint accompanied by the affidavits and supporting documents. Procedure Within 10 days after the filing, the investigating officer shall either dismiss or issue subpoena.
If subpoena is issued, respondent shall
submit a counter-affidavit and other supporting documents within 10 days from receipt thereof.
Hearing (optional). It shall be held within
10 days from submission of counter- affidavits or from the expiration of the period of their submission.
Resolution of investigating prosecutor
(Sec. 4 & 5). Ways of initiating criminal action for cases not requiring preliminary investigation (crimes with penalty of imprisonment of less than 4 years, 2 months & 1day)
By filing the complaint directly with the
prosecutor By filing the complaint or information with the Municipal Trial Court There is NO right of preliminary investigation under Section 6, Rule 112 when a person is LAWFULLY arrested unless there is a waiver of the provisions of Article 125 of the Revised Penal Code. HOWEVER, the accused can ask for Preliminary Investigation in the following cases: If a person is arrested, he can ask for preliminary investigation BEFORE the filing of the complaint/information BUT he must sign a waiver in accordance with Article 125, RPC. AFTER the filing of the information/complaint, the accused may, within 5 days from the time he learns of its filing ask for preliminary investigation. Inquest Proceedings Proper only when the accused has been lawfully arrested without a warrant Inquest Proceedings is a summary investigation and which does not follow the procedures set forth in Sec.3, Rule 112 of Rules of Court The inquest proceedings shall be deemed commenced from the time the Inquest Officer receives the complaint & referral documents from the law enforcement authorities Documents include: Affidavit of Arrest Investigation Report Statement of complainant and witnesses Other supporting evidence gathered
Detained person should be present during the
Inquest Proceedings unless reasons exist that would dispense with his presence like confinement in hospital, detention in places requiring maximum security or his presence is not feasible. Action to be taken if the respondent does not submit his counter-affidavit
If despite the subpoena, the respondent does not
submit his counter affidavit within 10-day period ,the investigating officer shall resolve the complaint based on the evidence presented by the complainant. Clarificatory Hearing A hearing may be set by the Investigating officer within 10 days from the submission of counter- affidavit or from the expiration of the period for their submission, if there are facts or issues to be clarified either from a party or witness. If parties have question to ask, they shall submit the questions to the Investigating officer who shall ask the question to the parties or witness The hearing shall be terminated within 5 days Rights of Respondent in a Preliminary Investigation To submit counter-affidavits
To examine evidence submitted by the
complainant
To be present in the clarificatory hearing.
Resolution of Investigating Prosecutor If the prosecutor does not find probable cause, he shall recommend the dismissal of the complaint If the prosecutor finds cause to hold the respondent for trial, he shall prepare both the resolution and information The information shall contain a certification by the investigating officer under oath in which he shall certify the following: That h or as shown in the record, an authorized officer, has personally examined the complainant and his witnesses That there is reasonable ground to believe that a crime has been committed That the accused probably guilty thereof That the accused was informed of the complaint and of the evidence submitted against him , and That he was given an opportunity to submit controverting evidence Absence of a certification in the information as to the holding of preliminary investigation does NOT affect the validity of the information for the reason that such certification is not an essential part of the information itself and its absence cannot vitiate it as such.
*What is not allowed is the filling of information without
a preliminary investigation having been previously conducted Within 5 days from his resolution, the Investigating prosecutor shall forward the record to the Provincial or City Prosecutor or Chief state prosecutor or to the Ombudsman or his deputies (in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction)
They shall act on the resolution within 10
days from their receipt thereof and shall immediately inform the parties of such action Rule when recommendation for dismissal is disapproved When the recommendation for dismissal of the Investigating prosecutor is disapproved by the Provincial or City prosecutor or Chief state prosecutor or the Ombudsman or his Deputy on the ground that a probable exists, the latter, may by himself, file the information against the respondent, or direct another assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation. Motion for reconsideration Aggrieved party may file a motion for recommendation within 15 days from receipt of the assailed resolution. If the motion is denied, the aggrieved party may appeal within 15 days from the denial of the motion for recommendation. Appeals to the Secretary of Justice The action of Provincial or City prosecutor or of the State prosecutor is not the final say in the case. The prosecutor’s ruling is reviewable by the Secretary of Justice. The Secretary of Justice has the power to modify, reverse or affirm the prosecutor’s determination. When warrant of arrest may issue If the judge finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested and hold him for trial. If the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of warrant of arrest. The RTC judge need NOT personally examine the complaint and witnesses in the determination of probable cause for the issuance of the warrant of arrest. He is only required to: Personally evaluate the report and the supporting documents submitted during the preliminary investigation by the fiscal; and On the basis thereof he may: Dismiss; Issue warrant; or Require further affidavits. Instances when warrant of arrest is not necessary If the accused is already under detention; If the complaint or information was filed after the accused was lawfully arrested without warrant; If the offense is punishable by fine only. Withdrawal of information already filed in court Once a criminal complaint or information is filed in court, any disposition of the case or dismissal or acquittal or conviction of the accused rests within the exclusive jurisdiction, competence and discretion of the trial court (Bar 1990,1991,2011,2012) Records Records of the preliminary investigation shall NOT automatically form part of the records of the case. Courts are not compelled to take judicial notice thereof. It must be introduced as an evidence. Procedure to be followed in cases which do not require Preliminary Investigation Evaluate the evidence presented