Continuing detention

In a situation where the respondent in a criminal case is under an inquest proceeding

and the inquest prosecutor dismisses the criminal complaint for lack of probable cause,
may the detention of the respondent be continued on the ground that the complainant
has filed a motion for reconsideration before the Office of the Prosecutor or a petition for
review before the Department of Justice or on the ground that the case is subject to
automatic review pursuant to a department order of the Secretary of Justice?

This is the main legal and procedural issue in the controversial case of the Alabang Boys
which is now raging in the Philippine mass media.

When a respondent is arrested under Rule 13 (valid warrantless arrest), he is

immediately subjected to an inquest proceeding (that is, within 36 hours at the most,
counted from the arrest of the respondent, if he does not waive his right against illegal
detention under Article 125 of the Revised Penal Code).

If the inquest prosecutor is satisfied with the proofs of probable cause submitted by the
complainant and the arresting police officers, he will file the appropriate information in
court, subject to review and approval by the chief city or provincial prosecutor, within
the maximum period allowed by Article 125.

If the respondent waives his Article 125 rights, he continues to be detained and the
criminal case is subjected to regular preliminary investigation, which must be completed
by the investigating prosecutor within 15 days (from the expiration of the maximum
time allowed by Article 125). In a regular preliminary investigation, the respondent may
file his counter-affidavit, the affidavits of his witnesses, and his supporting evidence.

If the investigating prosecutor dismisses the complaint for lack of probable cause, and
the complainant or the arresting police officers file a motion for
reconsideration/reinvestigation or appeal the dismissal via petition for review to the
Department of Justice or if the resolution is subjected to automatic review by the
Secretary of Justice pursuant to a department order, should the respondent be released
pending such proceedings to avoid a violation of Article 125?

I believe so. The respondent must be released pending such proceedings.

The spirit of Article 125 of the Revised Penal Code and the Rules of Criminal Procedure
favors the theory that the respondent, in the above scenario, must be immediately
released. Otherwise, his continuing detention would stifle his constitutional and human
rights to due process of law, equal protection of the law, and presumption of innocence,
as enshrined in Article III of the 1987 Constitution.

A DOJ department order imposing the procedure of automatic review for big and
controversial criminal cases may be allowed because it is discretionary on the part of the
Secretary of Justice, he being in control of the national prosecution arm of the State, but
he must release a respondent from detention when the investigating prosecutor, with the
approval of the chief city or provincial prosecutor, has dismissed a case for lack of
probable cause, notwithstanding the pendency of appellate proceedings before the DOJ.
Otherwise, there is sufficient basis to initiate a criminal complaint against the guilty DOJ
and police officials for violation of Article 125 of the Revised Penal Code.

Holes in DOJ
(excerpts from the editorial)
Jan. 8, 2009
Philippine Daily Inquirer

THE JURY IS STILL OUT ON THE CASE OF THE alleged bribery involving the Alabang
Boys, but already it seems clear that the Department of Justice has some housekeeping
to do.

X x x.

It was, of course, no such thing. Chief State Prosecutor Jovencio Zuo, who signed the
original DOJ resolution on Dec. 2 already incorporating the release order for the three
young men, called Veranos maneuver not normal. Verano himself explained it in terms
anyone dealing with a corrupt organization would find familiar: I am just facilitating the
order. Maybe I was a little bit overzealous.

X x x.

The justice department also seems to have tolerated a culture of confusion. The answers
of DOJ lawyers to questions raised at the House committee hearings about the
procedures involved in the release of suspected illegal drug users and pushers have been
less than illuminating. Under the Manual Prosecutors, the chief state prosecutor has the
authority to conclude the resolution of a case. Gonzalez, however, had issued a
department order requiring his personal approval of the resolution of important cases,
especially those involving drugs and smuggling cases. In Gonzalezs own words: If it is
a drug or smuggling case, if the punishment is more than five years, and you dismiss a
case of that nature, you must get my imprimatur.

Under questioning, however, state prosecutors like John Resado described a work culture
where the justice secretarys circular providing for automatic review was either honored
in the breach or interpreted laxly.

This confusing state of affairs allows a state prosecutor to act on the assumption that a
resolution signed by the chief state prosecutor is effective immediately even while it is
pending automatic review.

None of this is to say that the Philippine Drug Enforcement Agencys performance is
flawless, and that therefore every single arrest it makes must end in conviction. But the
many loopholes in DOJ processes help explain why the burden of responsibility, in this
high-profile case, rests largely on the Department of Justice.

X x x.
http://attylaserna.blogspot.com/2009/01/continuing-detention.html
Sec. 6. When accused lawfully arrested without warrant. When a person is lawfully
arrested without a warrant involving an offense which requires a preliminary
investigation, the complaint or information may be filed by a prosecutor without need of
such investigation provided an inquest has been conducted in accordance with existing
rules. In the absence or unavailability of an inquest prosecutor, the complaint may be
filed by the offended party or a peace officer directly with the proper court on the basis
of the affidavit of the offended party or arresting officer or person.

Before the complaint or information is filed, the person arrested may ask for a
preliminary investigation in accordance with this Rule, but he must sign a waiver of the
provision of Article 125 of the Revised Penal Code, as amended, in the presence of his
counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be
terminated within fifteen (15) days from its inception.

After the filing of the complaint or 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
as provided in this Rule.

NOTES:

Section 6 is called INQUEST PROCEEDINGS, related to Rule 113, Section 5 [a] and [b]
on warrantless arrest. Inquests proceedings follow in cases where persons are
arrested without the benefit of an arrest order or warrant, or are caught in the act of
committing a criminal offense.

Only offenses that would require preliminary investigation will have to go through
inquest. Those not requiring preliminary investigation need not go through an inquest
proceeding.

Here, there is no need for preliminary investigation because there is a deadline for the
accused to be detained. Otherwise the peace officer will be guilty of arbitrary detention
delay in the delivery.

The purpose of the inquest proceedings in these cases is that while the state
acknowledges the law enforcers authority to arrest and detain persons without a
warrant, the state must also ensure that these persons are not unlawfully detained, and
that they are not denied due process. The inquest establishes whether the evidence is
sufficient enough to seek court approval to keep the person in detention.

Prosecutors have a heavy burden to oversee police investigations in cases involving

inquest proceedings (DOJ Circular 61 on New Rules on Inquest). Each police station or
headquarters should in principle also have designated inquest prosecutors to process
inquest procedures with a schedule of assignments for their regular inquest duties.
The inquest requires the prosecutors to resolve the complaint the police filed in a
prescribed period, which varies depending on the gravity of the offense. Cases
punishable with light penalties must be resolved in 12 hours; those punishable with
correctional penalties within 18 hours; and those punishable by afflictive or capital
penalties, within 36 hours. If the inquest prosecutor fails to complete the proceedings in
the prescribed period then the person must be released. - http://www.article2.org

How should the complaint or information be filed when the accused is lawfully
arrested without warrant?

The complaint or information may be filed by a prosecutor without need for a

preliminary investigation provided an inquest proceeding has been conducted in
accordance with existing rules. (Sec. 6, Rule 112, Rules of Court)

Suppose there is no inquest prosecutor? Or there is an inquest prosecutor but

he is not available, what will happen now to the case?

In the absence of an inquest prosecutor, the offended party or any peace officer may file
the complaint directly in court on the basis of the affidavit of the offended party or peace
officer. (Sec. 6, Rule 112, Rules of Court)

What is an inquest?

An inquest is an informal and summary investigation conducted by a public prosecutor in

a criminal case involving persons arrested and detained without the benefit of a warrant
of arrest issued by the court for the purpose of determining whether said persons should
remain under custody and correspondingly charged in court. (Section 1, DOJ Circular
No. 61)

What is the remedy of the person arrested without warrant if he wants a

preliminary investigation?

BEFORE the complaint or information is filed, he may ask for one provided that he signs
a waiver of his rights under Article 125 of the Revised Penal Code in the PRESENCE of
his counsel. He may still apply for bail in spite of the waiver. The investigation must be
terminated within 15 days.

Correlate this with Section 2 [e] of RA 7438 Law Protecting Rights of Persons under
custody i.e. he must be assisted by his counsel. Otherwise the waiver is not valid.

AFTER the complaint of information is filed but before arraignment, the accused may,
within 5 days from the time he learns of its filing, ask for a preliminary
investigation. (Sec. 6, Rule 112, Rules of Court)

The request for preliminary investigation should be made before plea, otherwise the
right to ask for a preliminary investigation shall be deemed waived.
 The period for filing a motion for preliminary investigation after an information has
been filed against an accused who was arrested without a warrant has been
characterized as mandatory by the court. In People vs Figueroa, the Supreme Court held
that as the accused in that case did not exercise his right within the five-day period, his
motion for reinvestigation was denied.

What are the guidelines to safeguard the rights of an accused who has been
arrested without a warrant?

1. The arresting officer must bring the arrestee before the inquest prosecutor to
determine whether the person should remain in custody and charged in court or if he
should be released for lack of evidence or for further investigation.

2. The custodial investigation report shall be reduced to writing, and before such report
is signed or thumbmarked if the person arrested or detained does not know how to read
and write, it shall be read and adequately explained to him by his counsel or by the
assisting counsel provided by the investigating officer in the language or dialect known
to him, otherwise, such investigation report shall be null and void and of no effect
whatsoever. (DOJ Circular No. 61)