THIRD DIVISION
|
AURELIO
M. SIERRA, Complainant, - versus - JHOSEP Y. LOPEZ, City
Prosecutor of Manila, EUFROCINO SULLA, 1st Assistant City Prosecutor
(ACP), ACP ALEXANDER T. YAP, ACP MARLO CAMPANILLA, and ACP ARMANDO VELASCO, Respondents. |
Adm.
Case No. 7549
Present: YNARES-SANTIAGO, J.,
Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO, NACHURA, and REYES, JJ. Promulgated: August
29, 2008 |
x------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:
The
instant controversy arose from a complaint for dereliction of duty and gross
ignorance of the law by Aurelio M. Sierra against City Prosecutor of Manila
Jhosep Y. Lopez, 1st Assistant City Prosecutor (ACP) Eufrocino
Sulla, Assistant City Prosecutors Alexander Yap, Marlo Campanilla and Armando
Velasco.
The
facts of the case are as follows:
On
These
cases were first assigned to ACP Alexander T. Yap. The principal respondents therein, namely:
Alfredo C. Ramos, Presentacion Ramos, George S.K. Ty, Atty. Emmanuel Leonardo,
and a certain Mr. Cayaban, did not appear during the scheduled hearing. However,
Alfredo and Presentacion Ramos appeared in the morning of that day ahead of the
complainant in which they submitted their respective counter-affidavits,
subscribed and sworn to before ACP Yap.
The respondents asked that they be allowed to submit their
counter-affidavits ahead of the scheduled hearing because they had an urgent
matter to attend to in the afternoon. In
the case of George S.K. Ty and Mr. Cayaban, their respective counter-affidavits
were submitted by their lawyers during the scheduled hearing in the afternoon,
already subscribed and sworn to before a Pasig Prosecutor. Atty. Leonardo did not submit any
counter-affidavit.
Because
of ACP Yap’s failure to require the presence of respondents in said cases
simultaneously with the complainant, Mr. Sierra asked for the prosecutor’s
inhibition. The cases were then re-raffled
to the respondent ACP Marlo Campanilla who likewise did not require the presence
of the respondents in the preliminary investigation. Because of this, he too
was asked to inhibit from the cases by complainant.
The
cases were then re-raffled to ACP Armando Velasco who also handled the cases in
the same manner as the two other prosecutors before him. City Prosecutor Jhosep Y. Lopez and 1st
ACP Eufrocino A. Sulla affirmed the correctness of the manner in which their
investigating prosecutors handled the cases.
On
In his complaint, Sierra raises the
following questions of law: (1) whether the parties must appear together before
the investigating prosecutor during preliminary investigation; (2) whether the
counter-affidavits of the respondents should be sworn to only before the
investigating prosecutor; and (3) whether the investigating prosecutor erred in
denying the request of the complainant for clarificatory questioning.
The
Supreme Court Third Division then issued a Resolution dated
In
compliance with the Honorable Court’s order, respondents filed their Comment
dated
We
find no merit in the complaint.
Rule
112, particularly Section 3 of the Rules of Court, lays down the basic
procedure in preliminary investigation, as follows:
Sec. 3. Procedure. – The preliminary investigation shall be conducted in the following manner:
(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public, each of whom must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents.
The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense.
Objects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing at the expense of the requesting party.
(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits, shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant.
(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or cross-examine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned.
The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or from the expiration of the period for their submission. It shall be terminated within five (5) days.
(f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial.
This
provision of the Rules does not require a confrontation between the
parties. Preliminary investigation is ordinarily
conducted through submission of affidavits and supporting documents, through
the exchange of pleadings.
In
Rodis, Sr. v. Sandiganbayan[1] we ruled that -
(the New Rules on Criminal Procedure) do not
require as a condition sine qua non to the validity of the proceedings ( in the
preliminary investigation) the presence of the accused for as long as efforts
to reach him were made, and an opportunity to controvert evidence of the
complainant is accorded him. The obvious
purpose of the rule is to block attempts of unscrupulous respondents to thwart
the prosecution of offenses by hiding themselves or by employing dilatory
tactics.
Since confrontation between the
parties is not imperative, it follows
that it is not necessary that the counter-affidavit of respondent be
sworn to before the investigating prosecutor himself. It can be sworn to before another prosecutor. In fact, this is specifically provided in paragraph
(c) of Sec. 3, which states that the “counter-affidavit shall be subscribed and
sworn to and certified as provided in paragraph (a) of this section x x x”; and
paragraph (a), provides:
the affidavits shall be subscribed and sworn to before any prosecutor or government official or in their absence or unavailability, before a notary public x x x.
Lastly,
we hold that the investigating prosecutors did not abuse their discretion when they
denied the request of the complainant for the conduct of clarificatory
questioning. Under paragraph (e) of Section
3 above, the conduct of clarificatory questioning is discretionary upon the
prosecutor. Indeed, we already held in Webb v. De Leon[2] that
the decision to call witnesses for clarificatory questions is addressed to the
sound discretion of the investigator, and the investigator alone.
WHEREFORE, premises considered, the complaint is DENIED for lack of merit.
SO ORDERED.
ANTONIO
EDUARDO B. NACHURA
Associate Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate
Justice
Chairperson
|
MA. ALICIA AUSTRIA-MARTINEZ Associate
Justice |
MINITA V. CHICO-NAZARIO Associate Justice |
RUBEN T. REYES
Associate
Justice