26 January 2021
As we continue our series on criminal procedure, we now discuss the process of preliminary investigation.
Despite what the term connotes, it is not to be confused with an initial “investigation” or evidence gathering conducted by law enforcement authorities, such as the police or the National Bureau of Investigation, concerning an offense.
Preliminary investigation, as part of criminal due process, is under the purview of the public prosecutor.
It is an inquiry, or a proceeding, 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.
As settled by case law, the prosecutor does not determine the guilt or innocence of the respondent.
Preliminary investigation is merely inquisitorial and is often the only means of discovering the persons who may be reasonably charged with a crime and to enable the fiscal to prepare his complaint or information.
It is merely based on opinion, reasonable belief and common sense.
Except for cases of warrantless arrest as discussed in our previous articles, a preliminary investigation is required to be conducted before the filing of a complaint or information in court for an offense where the penalty prescribed by law is at least four years, two months and one day without regard to the fine.
How is preliminary investigation commenced? The procedure starts when a complaint is filed by a complainant who may be a private citizen who is a victim of the offense, or a law enforcement officer such as the police.
The complaint must be in the form of an affidavit that is subscribed and sworn to before the public prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public.
Within 10 days after the filing of the complaint, the investigating officer may dismiss it if he finds no ground to continue with the investigation.
Otherwise, a subpoena with a copy of the complaint and its supporting affidavits and documents will be issued to the respondent. The latter must appear before the investigating officer on a certain date and time to submit his counter-affidavit and that of his witnesses and other supporting documents.
The counter-affidavits shall be subscribed and sworn to and certified just as the complaint. A motion to dismiss is not allowed in lieu of a counter-affidavit.
Do not assume that if a respondent fails to answer, the complaint will be dismissed. In contrast, the Revised Rules of Criminal Procedure provides that if the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the 10-day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant (Rule 112, Section 3, Revised Rules of Criminal Procedure).
A formal-type hearing does not usually take place during a preliminary investigation.
But if the investigating officer deems that there are facts and issues to be clarified from a party or a witness, a clarificatory hearing may be called. The parties can be present at the hearing but without the right to examine or cross-examine.
Within 10 days after the investigation, the investigating officer shall issue a Resolution determining whether the complaint will be dismissed, or whether there is probable cause to hold the respondent for trial. In the latter case, the public prosecutor recommends the filing of an Information in court.
The Resolution must be approved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy (Rule 112, Section 4, Revised Rules of Criminal Procedure).
The court has reminded time and again that while a preliminary investigation is not a trial and is not intended to usurp the function of the trial court, it is not a casual affair.
It serves the noble purpose of securing the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expense and anxiety of a public trial (Ang-Abaya vs Ang, GR 178511, 4 December 2008).
Our next article will cover the parties’ remedies after preliminary investigation.
First published on The Daily Tribune.
For further information, please contact:
Nilo T. Divina, Managing Partner, DivinaLaw
nilo.divina@divinalaw.com
