In brief
On 16 July 2024, the Department of Justice (DOJ) issued Department Circular No. 015 or the “2024 DOJ-NPS Rules on Preliminary Investigations and Inquest Proceedings” (“Rules“). The Rules mark a significant change to the conduct of criminal proceedings in the Philippines, as they supersede the rules on preliminary investigations previously found in the Rules of Court. The Rules cover the procedure for case build-up, preliminary investigation, inquest proceedings (in situations involving warrantless arrests) and appeals. They introduce several innovations, such as enhanced prosecutorial roles in case build-up, e-filings, and virtual hearings for both preliminary investigations and inquests. The Rules further detail the new “reasonable certainty of conviction” standard previously adopted in several DOJ circulars.
The Rules take effect on 31 July 2024, 15 days after being published.
Why this is relevant to you
Philippine criminal proceedings generally go through a two-stage process, with the first stage being under the DOJ and consisting of a preliminary investigation or inquest, where applicable. If the DOJ determines that formal charges should be filed in court, the second stage proceeds, with a trial court judge presiding over the trial.
The new Rules modify the entire first stage of this process. Thus, the changes brought about by the Rules are relevant to clients with ongoing criminal cases or those planning to initiate one.
Salient Points
A copy of the Rules can be found here. Below are 10 things worth noting under these new Rules.
1. There have been some changes of the general flow of the proceedings for preliminary investigations and inquests.
The general flow of preliminary investigations under the new Rules is as follows (those with ** are new):
- Filing of a complaint: The complaint-affidavit is filed with a relevant prosecution office. It is to be accompanied by an investigation data form and other supporting evidence and should establish prima facie evidence with a reasonable certainty of conviction.
- Assessment of a complaint/case build-up: The head of the prosecution office will assess the complaint for sufficiency in form and completeness of evidence before the complaint is docketed. If the evidence is insufficient, the head of the prosecution office will require the complainant to submit the lacking evidence. The complaint will only be docketed and sent to an investigating prosecutor if the head of the prosecution office determines that the complaint is sufficient in form and the evidence is complete.
- Second assessment of a complaint/outright dismissal:** Upon receiving the records, the investigating prosecutor has five days to determine whether to recommend dismissing the complaint or to issue a subpoena to the parties to appear for a preliminary investigation hearing. A dismissal can be recommended if the investigating prosecutor “finds no ground to continue with the investigation.”
- Submission of a counter-affidavit: During the preliminary investigation hearing, the respondent will file its counter-affidavit. The respondent need not appear in person ** if the counter-affidavit was sworn to before any prosecutor, any government official authorized to administer an oath or, in their absence, a notary public.
- Case submitted for resolution: The case can be considered submitted for resolution upon receipt of the counter-affidavit and confirmation that the counter-affidavit has been received by the complainant. Outside of this scenario, there are some procedures that the investigating prosecutor can opt for:
- Clarificatory hearing: If there are matters to be clarified after the counter-affidavit has been filed, the investigating prosecutor can set a physical or virtual** clarificatory hearing. If this hearing is set, the complainant and respondent must attend** — whether in person or virtually.
- Reply-affidavit and rejoinder-affidavit: It appears that a reply-affidavit and rejoinder-affidavit may now only be required if they are found to be necessary after a clarificatory hearing.**
- Discovery:** The investigating prosecutor may issue subpoena duces tecum/ad tes tificandum to require parties, witnesses or third parties to produce evidence or execute sworn statements material to the investigation.
Meanwhile, the general flow of an inquest under the new Rules is as follows (those with ** are new):
- Filing of a referral letter: The referral letter should be filed by law enforcement agents within the 12/18/36-hour periods under Article 125 of the revised Penal Code.
- ii. Provisional determination of validity of a warrantless arrest: The head of the prosecution office/designated prosecutor will provisionally determine the validity of the warrantless arrest before the referral is docketed and assigned to an inquest prosecutor.** From here, the following outcomes are possible:
- Release: The arrested person will be ordered to be released if a warrantless arrest is invalid or if the required evidence is not submitted within the relevant periods under Article 125 of the Revised Penal Code.**
- Docketed for inquest: The referral will only be docketed and assigned to an inquest prosecutor if it is determined to be complete in terms of the required evidence that establishes the elements of the crime, and if the periods under Article 125 of the Revised Penal Code were shown to have been observed.**
- Inquest proper: The respondent may opt for a preliminary investigation to be conducted, in which case it is required to sign a waiver of the provisions of Article 125 of the Revised Penal Code. Despite this waiver, the respondent may apply for bail, and the investigation should be terminated within 15 days.**
- Resolution: Inquest referrals must be resolved within the same day and transmitted to the head of office for approval on the next working day.**
2. Quantum of evidence: “prima facie evidence with reasonable certainty of conviction”
The Rules reflect the latest DOJ circulars transitioning the standard for preliminary investigations to a “reasonable certainty of conviction” (as opposed to the traditional “probable cause” standard). The Rules go a step further by clarifying that this determination can be arrived at upon prima facie evidence. How this will be applied remains to be seen because, while the Rules characterize it as “prima facie evidence,” Rule II, Section 5 also says that the quantum of evidence is met when the prosecutor is convinced that the entirety of the evidence presented by the parties is admissible, credible and capable of being preserved and presented. For context, the rule has been as follows:
[A] preliminary investigation is not the occasion for the full and exhaustive display of the parties’ evidence; it is for the presentation of such evidence only as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof.
Consequently, “the determination of probable cause does not depend on the… admissibility or veracity of testimonies presented” (see Estrada v. Ombudsman, GR Nos. 212140-41, 21 January 2015). Evidentiary matters are traditionally thrashed out during a court trial.
Under these new Rules, dismissals may be justified on account of admissibility and credibility issues, even prior to a court trial.
3. The case build-up and assessment process has been integrated in the Rules.
DOJ circulars in 2023 introduced the case build-up process, where a complaint undergoes a preliminary assessment prior to docketing, with the prosecutor having the option of requiring further evidence or dismissing the complaint at the outset where a “reasonable certainty of conviction” is not present. This process remains and has been further clarified under the Rules, as discussed in Item 1 above. Parties initiating criminal cases should keep this in mind, owing to the higher thresholds and the extra leeway for dismissal given to prosecutors.
4. The jurisdiction of state prosecutors has been clarified.
The Rules clarify that the jurisdiction of prosecutors assigned to the Office of the Secretary of Justice Prosecution Staff ( i.e., state prosecutors) is over criminal cases where: (1) national security is involved; (2) task forces have been created; (3) venues were transferred to avoid a miscarriage of justice; and (4) the secretary of justice directed state prosecutors to take over, as public interest may require. This provides guidance as to when cases can be referred to state prosecutors, instead of to the prosecutor’s office of the relevant venue.
5. A “complainant” is the “offended party”.
The jurisprudential rule concerning who the proper complainants are in a preliminary investigation is, “unless the offense subject thereof is one that cannot be prosecuted de oficio, the same may be filed, for preliminary investigation purposes, by any competent person” and “a complaint for purposes of preliminary investigation by the fiscal need not be filed by the ‘offended party'” (see Francisco, Jr. v. People, G.R. No. 177720, 18 February 2009).
The new Rules, on the other hand, define a complainant as:
The offended party (which may be a natural or juridical person), a person authorized… to file the complaint-affidavit on behalf of the offended party, a law enforcement agency, or any other public entity charged with the enforcement of the law violated.
How this rule will be applied remains to be seen, but it potentially limits who can initiate criminal complaints in the Philippines.
6. Proof of the respondent’s last known address is required.
If the respondent does not appear during the preliminary investigation hearing, the Rules require the investigating prosecutor to require proof from the complainant that the address indicated in the complaint-affidavit or in the NPS investigation data form is the respondent’s last known address. This is a new mechanism that is meant to address due process issues that typically arise when a prosecutor considers a criminal complaint submitted for resolution without the respondent’s participation.
7. Prosecutors may now avail of discovery measures during preliminary investigations.
Under the Rules, an investigating prosecutor may issue a subpoena duces tecum or a subpoena ad testificandum to require either of the parties or any of the witnesses, including third parties, to produce books, records, documents or evidence, or to execute sworn statements that are material to the investigation. This may be done upon motion or motu proprio, at any time during the preliminary investigation, before the case is submitted for resolution. Noncompliance gives the investigating prosecutor reason to initiate a criminal case for resistance and disobedience to a person in authority, and obstruction of justice.
8. A motion to reopen a preliminary investigation is allowed when “justified by the circumstances.”
Earlier issuances by the DOJ (i.e., the 2018 Manual for Prosecutors) expressly limit the grounds for a motion to reopen an investigation to (1) when newly discovered evidence has been submitted and (2) when the respondent has not been notified of the complaint. Under the Rules, a motion to reopen may be allowed when “justified by the circumstances.” The submission of newly discovered evidence and a party’s failure to participate are only provided as examples.
9. E-filing of submissions other than the complaint-affidavit is now possible, along with virtual preliminary investigations and inquest proceedings.
The Rules allow virtual preliminary investigation hearings subsequent to the initial hearing, which should be conducted in person. The Rules allow the investigating prosecutor to decide during this initial hearing if a continuation of the proceedings through videoconferencing is warranted, i.e., it will be beneficial to the fair, speedy and efficient administration of justi ce and when information and communications technology (ICT) is available to both the prosecution office and the parties.
The Rules also allow a counter-affidavit to be electronically filed if a respondent fails to submit its counter-affidavit during the initial hearing and an extension for filing the counter-affidavit is granted. Reply-affidavits and rejoinder-affidavits (where allowed) may also be filed electronically.
Such e-filings must be made electronically via email in PDF and should be accompanied by a verified declaration that the electronically filed affidavit and accompanying documents, if any, are complete and true copies of the hard copies filed with the prosecution office. Consequently, however, the hard copy of the original affidavit must still be submitted to the prosecution office either personally or by an accredited courier on or before the date set in the order issued by the prosecutor.
Inquest proceedings may be conducted virtually if the inquest prosecutor opts to do so, provided that both the prosecution office and the parties have access to ICT. If conducted virtually, the referral letter and all evidence must be filed via the official email address of the prosecution office.
10. The Rules consolidate DOJ circulars governing the appeals process.
Under the Rules, an aggrieved party can file a motion for reconsideration of the resolution within 15 days of receiving the resolution.
Cases cognizable by first-level courts within Metro Manila can be appealed to the prosecutor general, and those outside Metro Manila can be appealed to the regional prosecutor. The prosecutor general and the regional prosecutor’s resolutions in these appeals will be final and no longer appealable to the Office of the Secretary of Justice. Cases cognizable by second-level courts within or outside Metro Manila can be appealed to the secretary of justice. The secretary of justice’s resolution will be final, executory and no longer appealable, except for cases involving offenses punishable by reclusion perpetua or death, which can still be further appealed to the Office of the President.
*Authored by Quisumbing Torres, a member firm of Baker & McKenzie International, a Swiss Verein. Please contact QTInfoDesk@quisumbingtorres.com for inquiries.
