Philippines - Remedies After Preliminary Investigation.

Updated: Feb 12











We discussed in our previous article that preliminary investigation results in either the dismissal of the complaint for want of probable cause, or the filing of Information in court. In either scenario, one might be wondering if the outcome is fait accompli, or if parties still have remedies available to them. The remedy of a motion for reconsideration is available to any of the parties. Such motion is considered part of due process in the preliminary investigation; however, only one motion for reconsideration shall be allowed. If notwithstanding the motion for reconsideration, the investigating prosecutor upholds the adverse resolution, the parties may file an appeal with the Secretary of the Department of Justice (DOJ) under DOJ Circular 70 of 2000 or the NPS Rule on Appeal. Under this Rule, appeals from resolutions of the Chief State Prosecutor, Regional State Prosecutors and Provincial/City Prosecutors in cases subject of preliminary investigation or reinvestigation may be brought to the Secretary of Justice within 15 days from receipt of the resolution, or of the denial of the motion for reconsideration/reinvestigation. The review rests on the discretion of the Secretary of Justice. The latter may dismiss the petition outright if there is failure to comply with the requirements set out in the Rule, or if the petition is patently without merit or manifestly intended for delay, or when the issues raised therein are too unsubstantial to require consideration. Unless the Secretary of Justice directs otherwise, the appeal shall not hold the filing of the corresponding information in court but the appellant and the trial prosecutor shall see to it that, pending resolution of the appeal, the proceedings in court are held in abeyance (Section 9, NPS Rule on Appeal). In case the information has already been filed in court, a copy of the motion to defer proceedings filed in court must also accompany the petition. If the accused had already been arraigned, the petition for review shall not be given due course by the Secretary of Justice (Section 7, NPS Rule on Appeal). One may be wondering, what effect does the filing of the petition for review have on the criminal case, assuming the accused has not yet been arraigned prior to its filing? Section 11 (c), Rule 116 of the Revised Rules of Criminal Procedure provides that upon motion by the proper party, the arraignment shall be suspended if a petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or the Office of the President; provided, that the period of suspension shall not exceed 60 days counted from the filing of the petition with the reviewing office. The Supreme Court has explained that while the pendency of a petition for review with the Secretary of Justice is a ground for suspension of the arraignment, the deferment of the arraignment is limited to a period of 60 days as provided in Rule 116. It follows, therefore, that after the expiration of said period, the trial court is bound to arraign the accused or to deny the motion to defer arraignment (Samson vs Judge Daway, GR 160054-55, 21 July 2004). The petition for review does not warrant an indefinite suspension of the proceedings in the trial court. As ruled in the case of Ledesma vs Court of Appeals (GR 113216, 5 September 1997), such deferment or suspension, however, does not signify that the trial court is ipso facto bound by the resolution of the Secretary of Justice. Jurisdiction, once acquired by the trial court, is not lost despite a resolution by the Secretary of Justice to withdraw the information or to dismiss the case. As held in the landmark case of Crespo vs Mogul (GR L-53373, 30 June 1987), once an Information has been filed in court, the court is the best and sole judge on how to dispose of the criminal case. Whether the accused had been arraigned or not and whether there is a review by the Secretary of Justice resulting in a motion to dismiss filed with the Court, the Court may either grant the motion or proceed with the criminal case. The Court is the best and sole judge on what to do with the case before it. First published on The Daily Tribune.


For further information, please contact: Nilo T. Divina, Managing Partner, DivinaLaw nilo.divina@divinalaw.com


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