How to Appeal Decisions of Prosecutor
In the municipal level, the relationship of the Philippine National Police and the Office of the Prosecutor is of paramount importance. The PNP usually represented by the unit Investigator, has nobody to turn except to the Public Prosecutor when confronted with issues requiring legal expertise particularly with the filing of criminal cases. We must admit though, that in certain instances, a Prosecutor may not necessarily be convinced of the cases filed by a Police Investigator. It may result in the dismissal of cases even on the preliminary investigation or inquest stage.
Outcome of cases filed by the police is at the mercy of the Prosecutor because no office in the PNP handle appeals in connection with Resolutions of the Prosecutor. Dismissal of the case at the prosecutor’s level means the PNP has to let go of the suspect. This would further drain the resources of a police unit because after a warrant of arrest will be issued, police personnel will exert effort and spent financial resources again to capture the same person.
It is no arrogance to claim, especially to those who have the experience that the reason for the dismissal of the case is not really that the PNP has no case at all citing experience as a Police Investigator. The problem lies on relationship with the handling Prosecutor.
At the very start of the incident the Investigator knows the real-score on how to win the case. But sometime events turn otherwise when the prosecutor imposes his authority, suggests things, requires documents, gives demoralizing comments, etc. as to the merit of the case citing variables such as politics, blood relationships and previous experience with the PNP’s law enforcement activities, not to mention volume of his deadlines, and many factors that drives a prosecutor to have an attitude of resistance upon seeing a PNP member in his office.
Eto ang Abogado Nyo!
While looking for references in the library, I came across a criminal investigation Manual revised 2010 published by Directorate for Investigation and Detective Management (DIDM). The book laid down the procedures that Investigators need in performing their duty. Although the last part of the Manual has a form for notice of appeal, the appeal is premised on the outcome of the trial.
Absent in the manual is the discussion on how to appeal an adverse Resolution of the Public Prosecutor be it regular preliminary investigation, reinvestigation or those arising from an inquest proceeding found in DOJ Department Circular No. 70 (2000 NPS Rule on Appeal) which I believe should have been incorporated in the Manual.
There is no much problem in appealing Resolutions during Preliminary Investigations or Reinvestigation. The appeal procedure provides that:
1. The verified Petition for Review shall be brought to the Secretary of Justice within 15 days after receipt of the Resolution or within the same period after receipt of the denial of the Motion for Reconsideration if one has been filed.
2. The investigating/reviewing/approving prosecutor shall not be impleaded as party respondent in the petition. The PNP unit taking the appeal shall be referred to in the petition as "Complainant-Appellant".
3. The petition shall contain or state: (a) the names and addresses of the parties; (b) the Investigation Slip number (I.S. No.) and criminal case number, if any, and title of the case, including the offense charged in the complaint; (c) the venue of the preliminary investigation; (d) the specific material dates showing that it was filed on time; (e) a clear and concise statement of the facts, the assignment of errors, and the reasons or arguments relied upon for the allowance of the appeal; and (f) proof of service of a copy of the petition to the adverse party and the Prosecution Office concerned.
4. The petition shall be accompanied by legible duplicate original or certified true copy of the resolution appealed from together with legible true copies of the complaint, affidavits/sworn statements and other evidence submitted by the parties during the preliminary investigation/reinvestigation.
5. Failure to comply with the above requirements shall constitute sufficient ground for the dismissal of the petition.
Below is a suggested format;
Republic of the Philippines
DEPARTMENT OF JUSTICE
NATIONAL PROSECUTION SERVICE
Office of the Secretary
Padre Faura St., Ermita, Manila
- versus -
x - - - - - - - - - - - - - - - - - - - - - - - - -x
PETITION FOR REVIEW
COMES NOW, the undersigned petitioner, unto this Honorable Office respectfully avers:
1. That on _________ the undersigned Chief of Police of ____(state the unit and postal address)_______ upon complaint of the private offended party filed a case against _____(state the name and postal address of the respondent)_ for ___(designation of offense)__ docketed under IS No.____ before the Office of Honorable _________ located in ______ where the preliminary investigation took place;
2. That for the information of the Honorable Secretary this case started ___(give the concise facts of the case)
3. That on _____(date)___ the undersigned received the Resolution of the Honorable Prosecutor copy of which is attached as Annex “A” disposing the case as follows:
Note: Copy the dispositive portion of the resolution.
4. That the undersigned ______(pls give ur analysis how the Prosecutor disposed the case) ___.
5. That with due respect to the Honorable Prosecutor, the undersigned believed that he committed error on the following:
Note: Cite now the matters that adversely affect your case specifically pinpointing the law that supports your position
6. Attached as integral part of this petition are the following:
a) Proof of service of this Petition to the Honorable Prosecutor (Annex “B”)
b) Proof of service of this Petition to the Appealee
c) Other Records of the Case
WHEREFORE, the undersigned respectfully prays for the setting aside of the appealed resolution of Prosecutor __________ dated _____and that the honorable prosecutor be directed to file information (blah blah cite now the relief that you want if you have any)_____
Other reliefs just and equitable are likewise prayed for.
Chief of Police
The more bloody discussion is on appeal of Resolutions arising from Inquest Proceedings. During inquest, the prosecutor may recommend for the release of the respondent. However his recommendation is subject to approval by the head prosecutor who, in the natural course of events, acts on the recommendation only after the lapse of 3 days. Pending approval of the recommendation, does the respondent be released by the PNP so as to avoid arbitrary detention charges? The answer is NO. The officer having custody of the detainee must wait for the Order of Release served upon him.
Although we have a principle in law that interpretations of the law must tend to benefit the person in custody, in the case of LADLAD VS VELASCO et al (GR No. 172070-72 promulgated June 1, 2007), Section 9 of DOJ Circular No. 61 (new Rules on Inquest) in relation to section 7 of Rule 112 (Preliminary Investigation) was discussed and the Supreme Court seems to suggest that the PNP should not release the respondent pending approval of the recommendation by the Head Prosecutor. If the recommendation to release the respondent is approved because the arrest is not in accordance with the rules of warrantless arrest but the case itself is meritorious, the Order of Release shall be served on the officer having custody of the detainee; and, the Order to submit counter-affidavit will be served to the respondent so that the regular preliminary investigation will proceed. The Resolution in the regular preliminary investigation will be the subject of petition for review and not the resolution in Inquest Proceeding pursuant to the case of LEVISTE vs ALAMEDA GR No. 182677 promulgated Aug. 3, 2010.
If the Prosecutor dismisses the case subject of inquest, the course of action is not to appeal but to file again the case curing the defect of the complaint.
Hope, this write-up helps our frontliners.
About the Author:
PSI GARRY FRANCO CAÑETE PUASO is a member of the BAR who hails from San Isidro, Northern Samar. He was formerly assigned with the Northern Samar Police Provincial Office where he was designated as Special Operations Group team leader, Police Investigator and DOJ authorized Prosecutor for ten years. He studied law in University of Eastern Philippines, Catarman, Northern Samar and joined the PNP-Legal Service thru Lateral Entry after passing the 2008 Bar Examinations.
The above discussion is his insight on a common predicament faced by police front-line investigators.
He topped the Order of Merit for Papa Company during the PSOBC Class 2010-109, Class Dakila, conducted at Camp Vicente Lim, Canlubang, Calamba City, Laguna.
Currently, he oversees the LS Legal Advice 24/7 Office and the big brother behind the advisory messages sent to Investigators nationwide. He also supervises the PNP Legal Service Website.
Last Updated (Wednesday, 25 July 2012 02:25)