Preliminary
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.
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.
CONSTITUTIONALITY
The question now is not so much as to whether DOJ Circular No. 016 altered existing rules by requiring “reasonable certainty of conviction,” rather than the prior need of probable cause, as provided for in the Rules of Court and a long line of Supreme Court rulings. The more pressing question is – may the DOJ, in the first place, even alter the evidentiary standard of probable cause as required in preliminary investigations?
In this regard, our Supreme Court, time and again, has repeatedly stated that preliminary investigation is not the appropriate forum for the full and exhaustive presentation of the parties’ evidence. More importantly, preliminary investigation is not the appropriate place for determining a person’s guilt or innocence. However, a cursory reading of DOJ Circular No. 016 reveals that it tends to require a comprehensive presentation of evidence and may even be regarded as the prosecutor determining a person’s guilt or innocence. Remarkably, the term “probable cause” is not even mentioned in the said circular.
On another note, DOJ Circular No. 016 also tends to disarm the prosecutor of obtaining critical evidence by resort to judicial processes, such as subpoenas and the discharge of state witnesses, among others.
There is also that question of whether DOJ Circular No. 016 violates the equal protection guarantee, since the standard of “reasonable certainty of conviction” only applies to first-level courts and not to other courts, like the Regional Trial Courts, the Sandiganbayan, and the Court of Tax Appeals.
RELATED
RE: There is a legal obstacle to the DOJ changing the evidentiary standard to “reasonable certainty of conviction.”
Published by PROF. MANUEL R. RIGUERA
Photo courtesy of the Central Book Supply, Inc.
"While the determination of probable cause in preliminary investigation is a function within the exclusive sphere and competence of the executive department, this competence does not include the power to change the evidentiary standard itself of preliminary investigation which is laid down by law. The executive cannot substitute its evidentiary standard for that provided for by statute, no matter how worthy its intentions may be."
It is quite clear that “reasonable certainty of conviction” provides for a higher evidentiary threshold than “probable cause.” Under the new standard, probable guilt is not enough, the evidence must warrant a conviction beyond reasonable doubt. This standard skirts dangerously close to proof beyond reasonable doubt, which is the quantum of proof for conviction in a criminal trial.
There is a legal obstacle to the DOJ changing the evidentiary standard to “reasonable certainty of conviction.” The evidentiary standard of probable cause is anchored on a statute, R.A. No. 5180, the law on which the procedure for preliminary investigation under Rule 112 of the Rules of Criminal Procedure is principally based.
To change the evidentiary standard in preliminary investigation to a more demanding one would be to deprive the complainant of a substantive right granted to him by law. This cannot be done by the executive but only by the legislature.
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