Published 21 July 2023, The Daily Tribune

It is well settled in Philippine law and jurisprudence that criminal complaints subject to preliminary investigation are assessed by the prosecutors to determine “probable cause,” or the existence of such facts that would excite the belief in a reasonable mind that the person committed the crime.

However, recent circulars of the Department of Justice or DOJ have imposed the additional stricter standard of “reasonable certainty of conviction” in certain cases before a complaint is filed or even when already pending in court, to de-clog and decongest court dockets.

In February 2023, the DOJ issued Circulars No. 008 s. 2023 and 008-A s. 2023 directing all public prosecutors handling criminal cases for offenses cognizable by the Municipal Trial Courts or MTCs, Municipal Trial Courts in Cities or MTCCs, and Metropolitan Trial Courts or MeTCs to determine if each has a reasonable certainty of conviction based on the evidence, witnesses, and continued interest of the private complainants, and to withdraw the information if there is none.

“Reasonable certainty of conviction” is expressly defined in DOJ Circular No. 016 s.2023 as follows:

Section 2. Reasonable Certainty of Conviction. There is reasonable certainty of conviction when a prima facie case exists based on the evidence at hand, including but not limited to, witnesses, documentary evidence, real evidence, and the like, and such evidence, that on its own and if left uncontroverted by the accused, shall be sufficient to establish all the elements of the crime or offense charged, and consequently warrant a conviction beyond reasonable doubt.

DOJ Circular No. 16 s. 2023 provides further specific guidelines on its applicability to cases falling under the Rules on Summary Procedure or those that are pending in the MTC, MTCC, or MeTC which (a) had no considerable movement over a period of three months or more; (b) where the complainant or his witnesses have repeatedly failed to appear without valid reason despite due notice; or (c) where the material evidence are not available or can no longer be produced despite earnest efforts by the complainant.

In such cases, the absence of reasonable certainty of conviction should prompt the prosecutor to move for withdrawal of the information and/or dismissal of the case/s.

On 31 March 2023,  the DOJ issued Circular No. 20 s. 2023 which imposed a preliminary evaluation of the complaint based on the same standard prior to its docketing for preliminary investigation or the conduct of inquest proceedings in cases involving heinous crimes, capital offenses, violations of Republic Act 9165, or the Comprehensive Dangerous Drugs Act, Republic Act 9160 or the Anti-Money Laundering Act of 2001, Republic Act 11479 or the Anti-Terrorism Act of 2020, and Republic Act 10168 or the Terrorism Financing Prevention and Suppression Act of 2012.

Heinous crimes include:

(1) Treason under Article 114 of the Revised Penal Code (RPC);

(2) Piracy and Qualified Piracy under Articles 122 and 123 of the RPC, respectively;

(3) Qualified Bribery under Article 211-A of the RPC;

(4) Parricide under Article 245 of the RPC;

(5) Murder under Article 248 of the RPC;

(6) Infanticide under Article 255 of the RPC;

(7) Kidnapping and Serious Illegal Detention under Article 267 of the RPC;

(8) Robbery with violence against and intimidation of persons under Article 294 of the RPC;

(9) Destructive Arson under Article 320 of the RPC;

(10) Rape under Article 335 of the RPC;

(11)  Plunder under Republic Act 7080; and

(12) Carnapping under Section 14 of Republic Act 6539.

Sections 5 and 6 of DOJ Circular No. 20 s. 2023 further requires criminal complaints to be evaluated before preliminary investigation or inquest proceedings to determine if they contain all the necessary evidence to prove the essential elements of the crime.

The investigating prosecutor would then issue a certification as to the existence of a prima facie case and a reasonable certainty of conviction based on the available documents, witnesses, and evidence.

If assessed in the negative, this would be referred to the private complainant, together with a report, advice on the lacking evidence, and a directive to secure such lacking evidence. If this is not possible, then the complaint would be terminated without prejudice to refiling.

It is worth noting that the Supreme Court has repeatedly held that a preliminary investigation is not the avenue for a full-blown display of evidence (PCGG v. Navarro-Gutierrez, GR No. 194159, 21 October 2015), and that probable cause does not require clear and convincing evidence establishing certainty of guilt (Galario v. Office of the Ombudsman, GR No. 166797, 10 July 2007).

However, it is also undisputed that the determination of probable cause in a preliminary investigation is an executive function, where the public prosecutor is given broad discretion to determine whether probable cause exists (People v. Castillo and Mejia, GR No. 171188,  19 June 2009).

We have yet to see the full implications and effects of the cited DOJ circulars, but it is certainly advisable to ensure the presence of sufficient evidence to support all elements of the crime charged before filing the complaint.

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