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DEPARTMENT OF JUSTICE
Office of the City Prosecutor
__________________________
,
Complainant,
FOR: ADULTERY
-versusRespondents.
since
the
conduct
of
preliminary
WHEREFORE,
finding
probable
cause,
the
2.
and Trial of Criminal Cases, specifically, Part III, Section 56 thereof, Respondent is
given 10 days from the receipt of the Resolution, or until __________________ to file a
Motion for Reconsideration;
3.
4.
5.
Office of the City Prosecutor is SOLELY based on the Affidavit Complaint and the
Judicial Affidavits of the witnesses that were submitted to the aforesaid Honorable
Office;
6.
I.
Complaint
Affidavits
and
of
the
Witnesses
supporting
must
be
and
self-serving,
thus,
inadmissible in evidence.
7.
the Judicial Affidavits of the Witnesses should not have been entertained and
considered as evidence by the Honorable Prosecutor for the reason that it was not
subscribed and sworn to before an authorized officer or even before a
public prosecutor as mandated by the Revised Rules of Criminal Procedure,
hence a mere scrap of paper;
8.
Section 3.
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. They shall be in such number of copies as there
are respondents, plus two (2) copies for the official file. The
affidavits shall be subscribed and sworn to before any
prosecutor
or
government
official
authorized
to
executed
and
understood
their
affidavits.
9.
10.
foregoing officials that such affidavits may be certified before a notary public;
11.
Complainant has not even alleged the unavailability of the prosecutor or any other
government official who is authorized to administer oath to excuse the fact that only
an Acknowledgment was made in his Affidavit Complaint;
12.
the Affidavit Complaint were likewise not subscribed and sworn to before any
prosecutor or government official authorized to administer oath;
13.
Witnesses were only attested to before a notary public, the Complainant once again
offered no proof or allegation regarding the unavailability of the prosecutor or any
other government official who is authorized to administer oath to justify the noncompliance with the mandate of the Rules;
14.
Revised
Rules
of
Criminal
Procedure
is
15.
Court has clearly held that such UNSWORN STATEMENTS in both the Judicial
Affidavits accompanying the Affidavit Complaint including the Judicial Affidavit of
the Complainant himself are all self-serving and are not admissible in evidence as
proof of the facts asserted. Thus, all the foregoing Judicial Affidavits deserve no
probative value and should be treated as mere scraps of paper;
16.
and giving weight to the Judicial Affidavits of the Complainant, as well as the
Judicial Affidavits of his witnesses since all of their Judicial Affidavits were not
subscribed and sworn to before any prosecutor or government official authorized to
administer oath;
II.
The
affidavits
Rules
must
require
be
that
the
subscribed
and
17.
19.
Affidavit Complaint merely states that the Complainant is the same person who
executed the annexed document which is the Affidavit-Complaint executed on the
14th day of October by the Complainant. Further, the said Acknowledgement states
that For the contents of the annexed document, the Embassy assumes no
responsibility;
20.
21.
22.
on the document was voluntarily affixed by the person executing the document for
the purposes stated in the document, and that he declares that he has executed the
document as his free and voluntary act and deed;
23.
compliance with the requirements of Rule 112, Section 3 of the Revised Rules of
Criminal Procedure, which is the declaration under oath as to the truthfulness of
the statements embodied in the Affidavit Complaint before a competent officer.
24.
25.
III.
subscribed
prescribed
have
and
under
not
Criminal Procedure
been
sworn
the
to
Rules
duly
as
on
26.
The Manual for Prosecutors Part III, Section 14, paragraph (e) clearly
provide that if the Complaint and the supporting Affidavits are not properly
subscribed and sworn to as prescribed under the Rules on Criminal Procedure, the
same shall cause its outright dismissal. To wit:
SEC. 14. Dismissal of complaint. - The following, among others, shall
constitute sufficient basis for the outright dismissal of a complaint:
a)
c)
d)
e)
that the complaint and the supporting affidavits
are unsigned and/or have not been duly subscribed
and sworn to as prescribed under the Rules on
Criminal Procedure.
27.
28.
Judicial Affidavit Rule, but instead by the Rule 112, Section 3, Paragraph (a) of the
Revised Rules of Criminal Procedure to accept and give weight only to those
affidavits that are properly subscribed and sworn to before any prosecutor or
government official authorized to administer oath;
29.
Besides, the issue in this case is not only with regard to the compliance
of the Complaint and the supporting affidavits with the Judicial Affidavit Rule
alone, but importantly with its conformity with the requirements of the Rules of
Criminal Procedure;
30.
The
Honorable
Prosecutor
is
thus
gently
reminded
of
his
31.
that they may properly fulfill their assigned role in the administration of justice. It
should be realized, however, that when a man is hailed to court on a criminal
charge, it brings in its wake problems not only for the accused but for his family as
well. Therefore, it behooves a prosecutor to weigh the evidence carefully and to
deliberate thereon to determine the existence of a prima facie case before filing the
information in court. Anything less would be a dereliction of duty3.
32.
With all due respect to the Honorable Prosecutor, It is not only the
technical issues that herein respondent focused on. The rules laid down under Rule
112, section 3 of the 1997 Rules of Court were not merely guide for the prosecutors
to follow or not but are mandatory in nature;
33.
34.
has accorded them broad prosecutorial powers, such an authority is not unfettered
because public prosecutors are constrained to adhere to the time-honored principle
that a finding of probable cause requires substantial evidence. And substantial
evidence is that which a reasonable mind might accept as adequate to support a
conclusion ;
Sales v. Sandiganbayan, G.R. No. 143802, 16 November 2001, 369 SCRA 293, 305 citing Bernardo v. Mendoza,
G.R. No. L-37876, 25 May 1979, 90 SCRA 214, 220; Vda. De Jacob v. Puno, G.R. Nos. L-61554-55, 31 July 1984,
131 SCRA 144, 149.
35.
In this case, for probable cause to exist, it is thus imperative that the
36.
Under the same vein, it is likewise worthy to state that Prosecutors are
38.
should have necessarily been disregarded by the Office of the City Prosecutor for
being hearsay and self-serving; thus, are inadmissible in evidence;
39.
the crimes have been committed and that the Respondent is probably guilty when
there was NO evidence to support the complainants claim? In fact, the complaint
was not even based on personal knowledge worse, it was unsubscribed and unsworn;
40.
Prosecutor has derived its findings from were not even duly established by
competent evidence, what then will be the basis in finding a probable cause for the
crime of adultery?
PRAYER
IN VIEW OF THE FOREGOING, it is respectfully prayed of this Honorable
Office that the Resolution, dated __________________, recommending for the filing of
NOTICE OF SUBMISSION
Administrative Officer
City Prosecution Office
__________________________
Please take notice that we are submitting the foregoing Motion for the kind
consideration of this Honorable Office immediately upon receipt hereof sans
appearances and without further arguments.
Thank you.
Copy furnished:
VERIFICATION
)S.S.
x-------------------------------------------x
AFFIDAVIT OF SERVICE
I,
______________,
of
legal
age,
and
with
office
address
at
WITNESS
WHEREOF,
have
hereunto
set
my
hand
_________________________________
___________________
Affiant
SUBSCRIBED AND SWORN to before me this ______________________ at Davao
City, Philippines; Affiant exhibiting to me _______________________________.