I'm Giancarlo Enrico S. Pozon, a Wushu instructor, investor and Barrister... That's right, Barrister; I graduated from law school and took the Bar Exams, now I'm waiting for the results. I created this blog to make Philippine Law easy to understand for the average person. It's all about free legal advice. There are many law blogs. But the problem is that many of them are written for lawyers and law students. They use words that can't be understood by ordinary people.
Many lawyers, judges and law students consider themselves as superior to most human beings because of their knowledge of the law. It bothers me since the law is supposed to serve society. Since the law is meant to serve society as a whole, it is important that is must be understood by everybody.
This does not mean that we should all become lawyers. It means that although law is a highly specialized profession, the first duty of everybody in this profession is to make the law understandable to all; that's why all these articles are free legal advice.
Like I said, this blog is about law -but it's for the ordinary people, not the lawyers. It's for the ordinary folk so they will know what is good and bad for them, and that making them aware of the law will help us all improve society as a whole. This is free legal advice for everybody!
We've already taken up the basis of preliminary investigation. Now, we're in the procedural part.
1.) The complaint must contain the respondent's (accused's) address and the following are to accompany it:
a.) Complainant's affidavit
b.) Witnesses' affidavits
c.) Other supporting documents to establish probable cause
There must be as many copies of the complaint as there are respondents and an additional 2 copies for the official file. The affidavits must be subscribed and and sworn to before any prosecutor of government official authorized to administer oath. In case they're unavailable, the subscription can be done before a notary public. The notary public has to examine the affiants personally and must be satisfied that they voluntarily executed the affidavits and understood them.
2.) After the complaint is filed, the investigating officer has 10 days to either dismiss the complaint or subpoena the respondent/s if he finds ground to proceed with the investigation. The subpoena is to be accompanied by a copy of the complaint and its supporting affidavits and documents.
The respondent has the right to examine the evidence and he can copy it (at his expense, though.) If there's a lot of evidence, he can specify which ones he wants to copy. The specified evidence must be made available to him for copying. This is with regard to documentary evidence. Object evidence, on the other hand doesn't need to be furnished but the respondent is allowed to examine and take pictures of it.
3.) After the respondent receives the subpoena, he has 10 days to submit his counter-affidavit, as well as those of his witnesses and supporting documents he will need for his defense. The counter-affidavits must be certified and sworn to in the same way as in #1. The respondent can't file a motion to dismiss if he won't file a counter-affidavit.
If the respondent doesn't submit his counter-affidavits within the 10-day period in #3 (or if he can't be subpoenaed) the investigating officer must resolve the the complaint based on the evidence submitted by the complainant.
4.) If the counter-affidavits have been submitted, the investigating officer has 10 days to set a hearing if there are facts and issues that any party or witness must clarify. The parties can be present at the hearing but they can't examine and cross-examine each other. They can, however, submit their questions to the investigating officer, who will then bring them to the examined party. The hearing will be terminated within 5 days.
5.) Within 10 days after the investigation, the investigation officer has to determine whether or not there is sufficient ground to hold the respondent for trial. There is, therefore, a total of 40 days before the filing of the information. (the 5 days for hearing aren't included -that's the investigation itself.) If there is sufficient ground, the information will be filed.
The right to counsel during the preliminary investigation is necessary if there is a confession that is obtained. It's not admissible without counsel's assistance (People vs. Albano, 145 SCRA 555.)
The degree of proof isn't reasonable doubt. What is required is probable cause. First level court judges can't conduct preliminary investigations.
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