Part II: Regular Preliminary Investigation

In the previous article, we introduced Department Circular 015 (DC 15), the 2024 DoJ-NPS Rules on Preliminary Investigations and Inquest Proceedings, issued by the Department of Justice (DoJ).

Here, we focus on Regular Preliminary Investigations designed to ensure that only cases with strong evidence proceed to court, reducing unnecessary congestion.

Under the DoJ-NPS rules, a Preliminary Investigation is a streamlined procedure to determine if there is sufficient basis to bring charges against a person in court. The goal is to establish a “reasonable certainty of conviction” by gathering and evaluating all available evidence as part of the case build-up, as specified in DC 20. This step ensures that only well-supported cases go forward, reducing the likelihood of weak cases proceeding to trial.

The investigation process is streamlined by generally limiting submissions to: complaint-affidavit, counter-affidavit, reply-affidavit, and rejoinder-affidavit. Each document should include supporting witness affidavits and relevant evidence.

Regular Preliminary Investigation Procedure (Sec. 10)

1. Filing of Complaint-Affidavit

• The complainant files the original complaint and copies for each respondent, with a completed NPS Investigation Data Form (IDF).

• The complaint-affidavit must specify the parties, details of the alleged crime, and supporting evidence, including witness affidavits, to meet the standard of prima facie evidence with reasonable certainty of conviction.

2. Review by Prosecution Office Head

•Before docketing, the head of the prosecution office shall ensure sufficiency in the form of the complaint-affidavit and the completeness of evidence.

• The head of the prosecution office may require submission of additional evidence.

3. Special Rule for Minors

• When the respondent is a Child in Conflict with the Law (CICL) the investigation follows the provisions under the Juvenile Justice and Welfare Act (RA No. 9344, as amended by RA No. 106350).

4. Investigation Timeline and Subpoena Issuance

• Within five days of receiving the complete file, the investigating prosecutor reviews the complaint.

• If grounds exist, the prosecutor issues a subpoena to the respondent, setting a preliminary investigation hearing within 30 days from receiving the case records.

• The subpoena includes the complaint-affidavit and sets a date for the respondent to submit a counter-affidavit, with a minimum of 10 days from receipt.

5. Submission of Counter-Affidavit

• General Rule: The respondent must submit a sworn counter-affidavit with supporting evidence in person.

• Exception: Respondent’s personal appearance may be waived if the counter-affidavit is notarized.

• A motion to dismiss cannot replace a counter-affidavit unless verified and containing defenses.

• If respondent does not appear, the prosecutor may request proof that the respondent’s last known address was used.

• If the respondent still fails to respond, the case may proceed to resolution.

6. Clarificatory Hearing

• During the hearing, the investigating prosecutor may:

a. Ask clarificatory questions;

b. Submit case for resolution; or

c. Require the filing of a reply-affidavit and/or a rejoinder-affidavit.

7. Reply- and Rejoinder-Affidavits

• If new issues arise, the complainant may file a reply-affidavit, followed by a rejoinder from the respondent.

• These affidavits must be filed within 10 days.

• The rejoinder-affidavit shall be the last pleading allowed.

8. Subpoena for Additional Evidence

• If more evidence is needed, the prosecutor may issue a subpoena duces tecum (for documents) or ad testificandum (for testimony).

9. Reopening of Preliminary Investigation

• The investigation may be reopened if new evidence is discovered or if either party missed the subpoena due to delayed or non-receipt. Reopening is subject to the prosecutor’s discretion.

The DoJ-NPS rules enforce a 60-day deadline for resolving preliminary investigations, with a 30-day extension allowed for complex cases or capital offenses. The investigating prosecutor must submit their resolution to the office head within five days, who then has 10 days to review and approve it.

Once approved, the resolution is promulgated within five days. This structured timeline ensures that cases are handled promptly, supporting the delivery of faster justice.

For more of Dean Nilo Divina’s legal tidbits, please visit www.divinalaw.com. For comments and questions, please send an email to cad@divinalaw.com.