Case Digest: Estrada vs. Ombudsman, G.R. No. 212140-41, January 21, 2015
Rule 112 Preliminary Investigation, Procedure | Criminal Procedure
Facts:
In November 2013, the Ombudsman served upon Sen. Jinggoy Estrada a copy of the complaint, filed by the NBI and Atty. Baligod, that criminal proceedings for Plunder as defined in RA No. 7080 be conducted against Sen. Estrada. Sen. Estrada filed his counter-affidavit.
In December 2013, the Ombudsman served upon Sen. Estrada a copy of the complaint filed by the FIO of the Ombudsman, that criminal proceedings for Plunder, as defined in RA No. 7080, and for violation of Section 3(e) of RA No. 3019, be conducted against Sen. Estrada. Sen. Estrada filed his counter affidavit.
Eighteen of Sen. Estrada’s co-respondents in the two complaints filed their counter-affidavits between December 2013 and March 2014.
In March 2014, Sen. Estrada filed his Request to be Furnished with Copies of Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other Filings (Request) in the first complaint. Sen. Estrada’s request was made "pursuant to the right of a respondent ‘to examine the evidence submitted by the complainant which he may not have been furnished’ (Section 3[b], Rule 112 of the Rules of Court) and to ‘have access to the evidence on record’ (Section 4[c], Rule II of the Rules of Procedure of the Office of the Ombudsman)."
The Ombudsman denied Sen. Estrada’s Request to be Furnished with Copies of Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other Filings. Sen. Estrada filed the petition for Certiorari under Rule 65 and sought to annul and set aside the Order.
The Ombudsman issued a Joint Resolution which found probable cause to indict Sen. Estrada and his co-respondents with one count of plunder and 11 counts of violation of Section 3(e) of RA No. 3019. Sen. Estrada filed a Motion for Reconsideration and prayed for the issuance of a new resolution dismissing the charges against him.
Issue:
WoN the denial of Sen. Estrada's Request for the counter affidavits of his co-respondents violates his constitutional right to due process.
Held:
The denial did not violate Sen. Estrada’s constitutional right to due process.
First. There is no law or rule which requires the Ombudsman to furnish a respondent with copies of the counter-affidavits of his co-respondents.
en.
Estrada fails to specify a law or rule which states that it is a compulsory requirement of due process in a preliminary investigation that the Ombudsman furnish a respondent with the counter-affidavits of his co-respondents.
Neither Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure nor Section 4(c), Rule II of the Rules of Procedure of the Office of the Ombudsman supports Sen. Estrada’s claim.
What the Rules of Procedure of the Office of the Ombudsman require is for the Ombudsman to furnish the respondent with a copy of the complaint and the supporting affidavits and documents at the time the order to submit the counter-affidavit is issued to the respondent.
This is clear from Section 4(b), Rule II of the Rules of Procedure of the Office of the Ombudsman when it states, "[a]fter such affidavits [of the complainant and his witnesses] have been secured, the investigating officer shall issue an order, attaching thereto a copy of the affidavits and other supporting documents, directing the respondent to submit, within ten (10) days from receipt thereof, his counter-affidavits x x x." At this point, there is still no counter-affidavit submitted by any respondent. Clearly, what Section 4(b) refers to are affidavits of the complainant and his witnesses, not the affidavits of the co-respondents. Obviously, the counter-affidavits of the co-respondents are not part of the supporting affidavits of the complainant. No grave abuse of discretion can thus be attributed to the Ombudsman for the issuance of the Order which denied Sen. Estrada’s Request.
Although Section 4(c), Rule II of the Rules of Procedure of the Office of the Ombudsman provides that a respondent "shall have access to the evidence on record," this provision should be construed in relation to Section 4(a) and (b) of the same Rule, as well as to the Rules of Criminal Procedure.
First, Section 4(a) states that "the investigating officer shall require the complainant or supporting witnesses to execute affidavits to substantiate the complaint." The "supporting witnesses" are the witnesses of the complainant, and do not refer to the co-respondents.
Second, Section 4(b) states that "the investigating officer shall issue an order attaching thereto a copy of the affidavits and all other supporting documents, directing the respondent" to submit his counter-affidavit. The affidavits referred to in Section 4(b) are the affidavits mentioned in Section 4(a). Clearly, the affidavits to be furnished to the respondent are the affidavits of the complainant and his supporting witnesses.
The provision in the immediately succeeding Section 4(c) of the same Rule II that a respondent shall have "access to the evidence on record" does not stand alone, but should be read in relation to the provisions of Section 4(a and b) of the same Rule II requiring the investigating officer to furnish the respondent with the "affidavits and other supporting documents" submitted by "the complainant or supporting witnesses." Thus, a respondent’s "access to evidence on record" in Section 4(c), Rule II of the Ombudsman’s Rules of Procedure refers to the affidavits and supporting documents of "the complainant or supporting witnesses" in Section 4(a) of the same Rule II.
Third, Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure provides that "[t]he 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." A respondent’s right to examine refers only to "the evidence submitted by the complainant."
Thus, whether under Rule 112 of the Revised Rules of Criminal Procedure or under Rule II of the Ombudsman’s Rules of Procedure, there is no requirement whatsoever that the affidavits executed by the co-respondents should be furnished to a respondent.
Sen. Estrada’s Petition, in contrast, involves the preliminary investigation stage in a criminal case. Rule II on the Procedure in Criminal Cases of the Rules of Procedure of the Office of the Ombudsman applies in Sen. Estrada’s Petition. In both cases, the Rules of Court apply in a suppletory character or by analogy.
In Sen. Estrada’s Petition, the denial of his Request happened during the preliminary investigation where the only issue is the existence of probable cause for the purpose of determining whether an information should be filed, and does not prevent Sen. Estrada from requesting a copy of the counter-affidavits of his co-respondents during the pre-trial or even during the trial.
It is a fundamental principle that the accused in a preliminary investigation has no right to cross-examine the witnesses which the complainant may present. Section 3, Rule 112 of the Rules of Court expressly provides that the respondent shall only have the right to submit a counter-affidavit, to examine all other evidence submitted by the complainant and, where the fiscal sets a hearing to propound clarificatory questions to the parties or their witnesses, to be afforded an opportunity to be present but without the right to examine or cross-examine.
Petitioner cannot assert any legal right to cross-examine them at the preliminary investigation precisely because such right was never available to him. The admissibility or inadmissibility of said testimonies should be ventilated before the trial court during the trial proper and not in the preliminary investigation.
The technical rules on evidence are not binding on the fiscal who has jurisdiction and control over the conduct of a preliminary investigation. Considering that under Section 8, Rule 112 of the Rules of Court, the record of the preliminary investigation does not form part of the record of the case in the Regional Trial Court, then the testimonies of Galarion and Hanopol may not be admitted by the trial court if not presented in evidence by the prosecuting fiscal.
The sufficiency of the evidence put forward by the Ombudsman against Sen. Estrada to establish its finding of probable cause was judicially confirmed by the Sandiganbayan, when it examined the evidence, found probable cause, and issued a warrant of arrest against Sen. Estrada.
Probable cause can be established with hearsay evidence, as long as there is substantial basis for crediting the hearsay. Hearsay evidence is admissible in determining probable cause in a preliminary investigation because such investigation is merely preliminary, and does not finally adjudicate rights and obligations of parties. To require the application of Ang Tibay, as amplified in GSIS, in preliminary investigations will change the quantum of evidence required in determining probable cause from evidence of likelihood or probability of guilt to substantial evidence of guilt.
Principle:
Rule 112 (3) (a) & (c) of the Rules of Court provides :
(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 …
x x x x x x x x x
(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.
Section 4 of Rule II of Administrative Order No. 07 issued on April 10, 1990:
a) If the complaint is not under oath or is based only on official reports, the investigating officer shall require the complainant or supporting witnesses to execute affidavits to substantiate the complaints.
b) After such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a copy of the affidavits and other supporting documents, directing the respondents to submit, within ten (10) days from receipt thereof, his counter-affidavits and controverting evidence with proof of service thereof on the complainant. The complainant may file reply affidavits within ten (10) days after service of the counter-affidavits.
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In the Philippines, there are four instances in the Revised Rules of Criminal Procedure where probable cause is needed to be established:
(1) In Sections 1 and 3 of Rule 112: By the investigating officer, 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. A preliminary investigation is required before the filing of a complaint or information for an offense where the penalty prescribed by law is at least four years, two months and one day without regard to the fine;
(2) In Sections 6 and 9 of Rule 112: By the judge, to determine whether a warrant of arrest or a commitment order, if the accused has already been arrested, shall be issued and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice;
(3) In Section 5(b) of Rule 113: By a peace officer or a private person making a warrantless arrest when an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and
(4) In Section 4 of Rule 126: By the judge, to determine whether a search warrant shall be issued, and only upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines.
In all these instances, the evidence necessary to establish probable cause is based only on the likelihood, or probability, of guilt.
Recit VersionFacts:In 2013, complaints were filed against Senator Jinggoy Estrada for Plunder and violations of RA No. 3019. Sen. Estrada and his co-respondents filed their counter-affidavits between December 2013 and March 2014. In March 2014, Sen. Estrada filed a request to be furnished with copies of counter-affidavits of the other respondents and other filings. However, the Ombudsman denied his request.
Sen. Estrada filed a petition for Certiorari seeking to annul and set aside the order. The Ombudsman later issued a Joint Resolution finding probable cause to indict Sen. Estrada and his co-respondents.
Issue:WoN the denial of Sen. Estrada's Request for the counter affidavits of his co-respondents violates his constitutional right to due process.Held:The Ombudsman fully complied with the Rules of Criminal Procedure and the Rules of Procedure of the Office of the Ombudsman by providing Senator Estrada with copies of the complaint and supporting affidavits and documents. These rules require the investigating officer to furnish the respondent with copies of the complainant's affidavits and supporting witnesses but not the affidavits of co-respondents. The respondent's right is only "to examine the evidence submitted by the complainant." The Ombudsman went beyond legal duty by providing Senator Estrada with copies of the counter-affidavits of his co-respondents and accommodating him beyond what the rules required. Therefore, the Ombudsman could not be accused of grave abuse of discretion. As a result, the Petition for Certiorari under Rule 65 failed.
The constitutional due process requirements prescribed in Ang Tibay and GSIS are not applicable to preliminary investigations, which are created by statutory law and give rise to mere statutory rights. Applying Ang Tibay and GSIS to preliminary investigations will change the quantum of evidence required to establish probable cause and will render all past and present preliminary investigations invalid for violation of constitutional due process.
In preliminary investigations, the respondent has no right to an actual hearing or to cross-examine witnesses. Also, the same public officer may be the investigator and hearing officer at the same time, or the fact-finder, investigator, and hearing officer may be under the control and supervision of the same public officer, like the Ombudsman or Secretary of Justice.