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PROHIBITED ACTSRevised Forestry Code (PD 705)Chainsaw Act (RA 9175)Wildlife Act (RA 9147) Fisheries Code (RA 8550) BASIC CONCEPTS IN CRIMINAL LAWRules of Procedure on Environmental Cases (AM-09-6-8 SC)

ATTY. ISMAEL T. MANALIGODLEGAL DIVISION DENR REGION 02October 23, 2012 Aparri, Cagayan1FLOWCHARTCOURTTEPO (72hrs) NOT ENVT. CASECourt re-rafflesthe case and follow rules for ordinary civil action SUMMONSSUMMARY HEARING LIFT TEPOEXTEND (EPO)MOTION TO DISSOLVEDENYGRANTTEPO IS DISSOLVEDCERTIORARIRULE 65ANSWER PRE-TRIALMEDIATIONTRIAL (2 mos)CONSENT DECREE(Settlement Judgment)JUDGMENTAPPEALFILE COMPLAINTw/in 15 days40WRIT OF KALIKASAN TEST CASES

WEST TOWER VS. FPIC first Writ of KC by SC. Oil pipeline leak in Makati City

GLOBAL LEGAL ACTION ON CLIMATE CHANGE- Rainwater Collector petition (42,000) barangays nationwideAnislagan Bantay Kalikasan Task Force, Inc. (ABAKATAF) asked the RTC Surigao City to stop all exploration and extraction activities of the Manila Mining Corp., the Copper Gold Resources and Silangan Mindanao Mining Inc.

Manila Bay Case83What are the requirements of an Answer?It must be verified and filed within 15 days from receipt of the summonsAffidavits of witnesses, reports, studies of experts and all evidence must be attached2. What is the effect of failure to file Answer?Defendant shall be declared in default and upon motion of the plaintiff, court shall receive evidence ex parte and render judgment on such.3. How to plead SLAPP as an affirmative defense?The defense shall be stated in the answer and shall also be accompanied by documents and affidavits papers and other evidence. As counterclaim, pray for damages, attorrneys fees and costs of suit. A summary hearing shall be conducted and the plaintiff shall prove that the suit is not a SLAPPManila Bay Case811987 ConstitutionArticle XII Section 2All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forest or timber, wildlife, flora and fauna, and other natural resources are owned by the state Article II Section 16, 1987 ConstitutionIt is the policy of the state to protect and promote the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.

Oposa vs Factoran (July 30, 1993)- There is no need for an enabling law to enforce the above constitutional provision as the right to a healthy environment is at the level of human rights

SC-vested with the power to promulgate its own rules of procedure3rd Gen Rights- involves rights to life liberty and security which are above other rights such as political rights and civil libertiesNo need to have enabling statute to enforce the state policy5IntroductionFour Classifications of Environmental Laws

Terrestial - Forest and Biodiversity- 11Marine and Aquatic- Waters and Marine Life- 6Aerial-Air Pollution-1 Other Laws environment , waste management-5

11 other laws contain environment related provisionsCivil Code on abatement of Nuisance, easement and torts

SC-vested with the power to promulgate its own rules of procedure3rd Gen Rights- involves rights to life liberty and security which are above other rights such as political rights and civil libertiesNo need to have enabling statute to enforce the state policy6StakeholdersCitizensPrivate Enterprises and CorporationsNGOs and Pos ICCs and IpsGovernment Agencies LGUs-Communal Forests , Community watersheds (RA 7160)-Municipal waters (RA 8550 Sec. 15 and 4) - Prohibition/Limitation of Fishery Activities (Sec. 23)-Registration of Hatcheries, Breeding , Private FPs- Fishery Law Enforcement (Sec. 124)- Environmental Ordinances (S 16 RA 7160) Tano vs Socrates (1997)SC-vested with the power to promulgate its own rules of procedure3rd Gen Rights- involves rights to life liberty and security which are above other rights such as political rights and civil libertiesNo need to have enabling statute to enforce the state policy7

REVISED FORESTRY CODE (PD 705)CRIMINAL OFFENSES AND PENALTIESSECTION 77-86

77 Cutting, gathering and/or collecting timber or other products without license.78 Unlawful occupation or destruction of forest lands. 79 Pasturing Livestock80 Illegal occupation of national parks system and recreation areas and vandalism therein

881 Destruction of wildlife resources82 Survey by unauthorized person83 Misclassification and survey by government official or employee84 Tax declaration on real property85 Coercion and influence86 Unlawful possession of implements and devices used by forest officers87 Payment, collection and remittance of forest charges88 Sale of wood products

guilty of qualified theft as defined and punished under Articles 309 and 310 of the Revised Penal Code; Provided, That in the case of partnership, association or corporation, the officers who ordered the cutting, gathering or collecting shall be liable, and if such officers are aliens, they shall, in addition to the penalty, be deported without further proceedings on the part of the Commission on Immigration and Deportation.person who enters and occupies or possesses of forest land without authority ---P500.00 nor more than 20,000 and imprisoned for not less than six (6) months nor more than two (2) years for each such offense, and be liable to the payment of ten (10) times the rental fees and other charges which would have been accrued had the occupation and use of the land been authorized under a license agreement, lease, license or permit: Provided, That in the case of an offender found guilty of making kaingin, the penalty shall be imprisoned for not less than two (2) nor more than (4) years and a fine equal to eight (8) times the regular forest charges due on the forest products destroyed, without prejudice to the payment of the full cost of restoration of the occupied area as determined by the Bureau.six (6) months nor more than two (2) years and a fine equal to ten (10) times the regular rentals due, in addition to the confiscation of such livestock and all improvement introduced in the area in favor of the government, (forest lands, grazing lands and alienable and disposable lands which have not as yet been disposed of in accordance with the Public Land Act)occupy for any length of time any portion of the national parks system or shall, in any manner, cut, destroy, damage or remove timber or any species of vegetation or forest cover and other natural resources found therein, or shall mutilate, deface or destroy objects of natural beauty or of scenic value within areas in the national parks system, shall be fined not less than two hundred (P200.00) pesos or more than five hundred (P500.00) pesos exclusive of the value of the thing damaged. without proper permit shall hunt, capture or kill any kind of bird, fish or wild animal life within any area in the national parks system shall be subject to the same penalty; rehabilitation or restoration plus ejection See section 55. fined not less than one hundred (P100.00) pesos for each such violation and in addition shall be denied a permit for a period of three (3) years from the date of the violation.two (2) nor more than four (4) years, in addition to the confiscation of the implements used in the violation of this section including the cancellation of the license, if any, shall be imposed upon any person who shall, without permit to survey from the Director, enter any forest lands, whether covered by a license agreement, lease, license, or permit, or not, and conduct or undertake a survey for whatever purpose.knowingly surveys, classifies, or recommends the release of forest lands as alienable and disposable lands contrary to the criteria and standards established in this Code, or the rules and regulations promulgated hereunder, shall, after an appropriate administrative proceeding, be dismissed from the service with prejudice to re-employment, and upon conviction by a court of competent jurisdiction, suffer an imprisonment of not less than one (1) year and a fine of not less than one thousand, (P1,000.00) pesos. The survey, classification or release of forest lands shall be null and void. two (2) nor more than four (4) years and perpetual disqualification from holding an elective or appointive office, shall be imposed upon any public officer or employee who shall issue a tax declaration on real property without a certification from the Director of Forest Development and the Director of Lands or their duly designated representatives that the area declared for taxation is alienable and disposable lands, unless the property is titled or has been occupied and possessed by members of the national cultural minorities prior to July 4, 1955.imprisonment of not less than one (1) year and pay a fine of five hundred (P500.00) pesos for every hectare or a fraction thereof so improperly surveyed, classified or released.Imprisonment for a period of not less than (2) nor more than four (4) years and a fine of not less than one thousand pesos (P1,000.00), nor more than ten thousand (P10,000.00) pesos in addition to the confiscation of such implements and devices, and the automatic cancellation of the license agreement, lease, license or permit, if the offender is a holder thereof, shall be imposed upon any person who shall, without authority from the Director or his authorized representative, make, manufacture, or has in his possession any government marking, hatchet or other marking implement, or any marker, poster, or other devices officially used by officers of the Bureau for the marking or identification of timber or other products, or any duplicate, counterfeit, or imitation thereof, or make or apply a government mark on timber or any other forest products by means of any authentic or counterfeit device, or alter, deface, or remove government marks or signs, from trees, logs, stumps, firewoods or other forest products, or destroy, deface, remove or disfigure any such mark, sign, poster or warning notices set by the Bureau to designate the boundaries of cutting areas, municipal or city forest or pasture, classified timber land, forest reserve, and areas under the national park system or to make any false mark or imitation of any mark or sign herein indicated;

9Punishable acts under Sec. 77-

1. Cutting, gathering, collecting of forest products without the necessary documents.

2. Possession of forest products without permit.

10Section 77-A Administrative authority of the DENR to confiscate illegal forest products (DAO 1997-32)

Section 77-B- reward to informers- 20% of the net proceeds of the forest products11Selling, Purchasing, Re-selling, Transferring, Distributing or possessing a chainsaw without a permit

Imprisonment 4 yrs., 2 mos. And 1 day to 6 yrs or Fine Not less than P15,000.00 but not more than P30,000.00

Department of Environment and Natural ResourcesRA 9175 Prohibited Acts (Section 12)Unlawful importation or manufacturing of chainsawImprisonment 1 month to 6 months or Fine Not less than P1,000.00 but not more than P4,000.00

12Tampering of Engine Serial NumberDepartment of Environment and Natural ResourcesImprisonment 1 month to 6 months or Fine Not less than P1,000.00 but not more than P4,000.00

Actual unlawful use of chainsawImprisonment 6 years 1 day to 8 years or Fine Not less than P30,000.00 but not more than P50,000.00

RA 9147 JurisdictionDENRBFARTERRESTIAL AND PLANT SPECIESTURTLES AND TORTOISESWETLAND SPECIES (CROCODILES, WATERBIRDS, ALL AMPHIBIANS AND DUGONGDECLARED AQUATIC CRITICAL HABITATSALL AQUATIC RESOURCES INCLUDING BUT NOT LIMITED TO FISHES, AQUATIC PLANTS, INVERTEBRATES, ALL MARINE MAMMALS EXC. DUGONG

Scope of application: All wildlifeWILDLIFEwild forms and varieties of flora and fauna, in all developmental stages, including those which are in captivity or are being bred or propagated.

Section 27 Illegal ActsKilling and destroying wildlife species, except:For religious ritualsDue to communicable diseaseTo end misery of the wildlifePrevent imminent dangerAuthorized research or experiment

2. Inflicting injury which cripples and/or impair the reproductive system of the wildlifeIllegal Acts

3. Effecting any of the following acts in critical habitatDumping of waste productsSquatting or occupying portions of the habitatMineral exploration and/or extractionBurningloggingIllegal Acts

4. Introduction, reintroduction or restocking of wildlife5. Trading of wildlife6. Collecting, hunting or possessing wildlife, their by-products and derivatives7. Gathering or destroying of active nests, nest trees, host plants and the like8. Maltreating and/or inflicting injury9. Transporting of wildlifeIllegal ActsFines and PenaltiesVIOLATIONWILDLIFE SPECIESCRITICALENDANGEREDVULNERABLETHREATENEDOTHERSa. Killing/ destroying wildlife6 years & 1 day to 12 years imprisonment and/or 100T to 1M fine4 years & 1 day to 6 years imprison-ment and/or 50T to 500T fine2 years & 1 day to 4 years impri-sonment and/or 30T to 300T fine1 year & 1 day to 2 yrs imprison-ment and/or 20T to 200T fine6 mos. & 1 day to 1 yr impri-sonment and/or 10T to 100T fineb. Inflicting injury which cripples and/or impairs reproductive system4 years & 1 day to 6 years imprisonment and/or 50T to 500T fine2 years & 1 day to 4 years imprison-ment and/or 30T to 200T fine1 year & 1 day to 2 years impri-sonment and/or 20T to 200T fine6 mos. & 1 day to 1 yr imprison-ment and/or 10T to 50T fine1 mo. & 1 day to 6 mos. imprison-ment and/or 5T to 20T fineFines and PenaltiesVIOLATIONWILDLIFE SPECIESCRITICALENDANGEREDVULNERABLETHREATENEDOTHERSc. Dumping wastes, squatting, mineral exploration, extracting, burning, logging, quarrying1 month to 8 years imprisonment and/or 5T to 5M fined. Introduction, reintroduction or restocking of wildlife1 month to 8 years imprisonment and/or 5T to 5M fineFines and PenaltiesVIOLATIONWILDLIFE SPECIESCRITICALENDANGEREDVULNERABLETHREATENEDOTHERSg. Gathering or destroying of active nests, nest trees and host plants2 years & 1 day to 4 years imprisonment and/or 30T to 300T fine1 year & 1 day to 2 yrs imprison-ment and/or 20T to 200T fine6 mos. & 1 day to 1 year imprison-ment and/or 10T to 100T fine1 mo. & 1 day to 6 mos. impri-sonment and/or 5T to 50T fine10 days to 1 mo. impri-sonment and/or 1T to 5T fineh. Maltreating and/or inflicting injuries

6 mos. & 1 day to 1 year imprisonment and/or 50T to 100T fine3 mos. & 1 day to 6 mos. impri-sonment and/or 20T to 50T fine1 mo. & 1 day to 3 mos. impri-sonment and/or 5T to 20T fine10 days to mo. to 1 mo. impri-sonment and/or 1T to 5T fine5 days to 10 days impri-sonment and/or 200 to 1TFines and PenaltiesVIOLATIONWILDLIFE SPECIESCRITICALENDANGEREDVULNERABLETHREATENEDOTHERSi. Transporting wildlife

6 mos. & 1 day to 1 year imprisonment and/or 50T to 100T fine3 mos. & 1 day to 6 mos. impri-sonment and/or 20T to 50T fine1 mo. & 1 day to 3 mos. impri-sonment and/or 5T to 20T fine10 days to mo. to 1 mo. impri-sonment and/or 1T to 5T fine5 days to 10 days impri-sonment and/or 200 to 1TFines and PenaltiesVIOLATIONWILDLIFE SPECIESCRITICALENDANGEREDVULNERABLETHREATENEDOTHERSe. Trading of wildlife2 years & 1 day to 4 years imprisonment and/or 5T to 300T fine1 year & 1 day to 2 years imprison-ment and/or 2T to 200T fine6 mos. & 1 day to 1 year imprison-ment and/or 1T to 100T fine1 mo. & 1 day to 6 mos. impri-sonment and/or 500 to 5T fine10 days to 1 mo. impri-sonment and/or 200 to 20T finef. Collecting, hunting or possessing wildlife and/or by-products & derivatives2 years & 1 day to 4 years imprisonment and/or 30T to 300T fine1 year & 1 day to 2 years imprison-ment and/or 20T to 200T fine6 mos. & 1 day to 1 year imprison-ment and/or 10T to 100T fine1 mo. & 1 day to 6 mos. impri-sonment and/or 5T to 50T fine10 days to 1 mo. impri-sonment and/or 1T to 5T fineSEC. 86. Unauthorized Fishing or Engaging in Other Unauthorized Fisheries Activities..SEC. 87. Poaching in Philippine Waters. - .entry of foreign fishing vessel:prima facie evidenceSEC. 88. Fishing with Explosives, Noxious Substance, Electricity. (possession, use, dealing)SEC. 89. Use of Fine Mesh Net. Department of Environment and Natural ResourcesRA 8550 Prohibited ActsSEC. 90. Use of Active Gear in the MunicipalWaters and Bays and Other Management Areas.SEC. 91. Corral gathering, possessing, sell orExportingSEC. 92. Ban on Muro-Ami,Other Methods and Gearrecruiter Destructive to Coral Reefsand Other Marine Habitat.SEC. 94. Conversion of Mangroves. intofishponds or for any other purposesDepartment of Environment and Natural ResourcesRA 8550 Prohibited ActsSEC. 95. Fishing in Overfished Area and DuringClosed Season. cancellation of permit or license.SEC. 96. Fishing in Reserves, Refuge, Sanctuaries.SEC. 97. Fishing or Taking of Rare, Threatened or Species (CITES)SEC. 98. Capture of Sabalo and Breeders/Spawners. SEC. 99. Exportation of Breeders, Spawners, Eggs or FrySEC. 101. Violation of Catch Ceilings. SEC. 102. Aquatic Pollution. SEC. 103. Other violations.SEC 104. Commercial Fishing Operators Employing UnlicensedFisherfolk or Crew. SEC 105. Obstruction of Defined Migration Paths of anadromous, catadromous & migratory species,SEC 106.Evades, obstructs, hinders fishery duty

Department of Environment and Natural ResourcesAM 09-6-8 Rules of Procedure For Environmental CasesThe Supreme Court designated 117 RTCs as GREEN COURTS to resolve the growing docket of environmental cases nationwide. (AM Circular No. 23-2008-January 28, 2008

Forum on Environmental Justice (April 2009)-Draft Rule of Procedure was presented

The Rule of Procedure implements almost 36 environmental laws and counting...Effective April 29, 201028ScopeFor enforcement or violations of environmental and other related laws

Rule governs the procedure in civil, criminal and special civil actions before RTCs, MTCs , MTCCs, MCTCs

rules and regulations on conservation, development, preservation, protection and utilization of natural resources. 29Salient FeaturesEncourages settlement of cases through issuance by the Court of CONSENT DECREE

Judicial judicially-approved settlement between concerned parties based on public interest and public policy to protect and preserve the environment302. Provisonal remedy tailor-fitted for environmental casesEPO - (Environmental Protection Order) issued by the court directing or enjoining any person or government agency to perform or desist from performing an act in order to protect, preserve or rehabilitate the environment

Easy to procure with only minimal requirements (prayer included in the complaint or by direct application)

EPO subsists unless lifted, TEPO is only for the duration of the case or in case of extreme urgency ex parte for 72 hours313. Writ of Kalikasan enforces the constitutional right of balanced and healthful ecology (Article 2 Section 16) when they are violated or threatened with violation

4. Writ of Continuing Mandamus- issued by the court in an environmental case directing any agency or instrumentality of the government or officer thereof to perform an act or series of acts decreed by final judgment which shall remain effective until judgment is fully satisfied. (MANILA BAY CASE, 2008)Manila Bay Case325. Precautionary Principle- a rule of evidence which allows the court to resolve a case even if there is no full scientific certainty in linking a human activity to a threatening effect or which threatens serious irreversible damage

6. SLAPP- Strategic Lawsuit Against Public Participation- defense available to public officials against harassment cases.Manila Bay Case337. Liberalized Locus Standi (Cause of Action) - Oposa vs. Factoran Case 8. Rule on Documentary and Object Evidence- Photographic, video and similar evidence are now allowed subject to authentication rules

9. Expeditious Adjudication- Civil (1 year), Criminal Case (10 months), SCA (4 months)

10. No docket feesCapacity to sue involves the following elements. 1. Right of a person 2. violation of such right. 3. obligation of the defendant to observe the right of the plaintiff 4. remedy available

Oposa case rights emanate directly from consti provision which was made at par with political rights. RIGHT TO BALANCED HEALTHFUL ECOLOGY existed since the inception of mankind. Its implication is transgenerational in character

3411. The defendant may be held in contempt for refusal or delay in filing a return, filing a false return or resists the order of the court (Government Agency may be the defendant in this case!)

12. Simplified procedure in special civil action (no mediation, pre-trial only preliminary conference)

13. Filing of a petition for Writ of Kalikasan will not preclude the filing of other remedies 35Three Main Procedures 1.Civil Procedure a. Civil Action b. Citizens Suit2.Special Civil Actiona. Writ of Kalikasanb. Writ of Continuing Mandamus 3. Criminal Procedure A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong (Rule 1 Sec. 3)

A civil action which can be initiated by Any Filipino citizen in representation of others, including minors or generations yet unborn, may file an action to enforce rights or obligations under environmental laws

SCA Type of civil action governed by special rules (Rule 62-71 ROC

Criminal action- A criminal action is one by which the State prosecutes a person for an act or omission punishable by law (Rule 1 Section 3)

Mandamus- order issued by the court directing a person, entity to perform an act required by law

36Jurisdiction of CourtsOrdinary Civil Action/ Criminal Action MTC or RTCCitizens Suit RTC (subject of the suit is incapable of pecuniary estimation)TEPO court where the main case is lodgedWrit of Continuing Mandamus- RTC,CA, SCWrit of Kalikasan- CA, SCManila Bay Case37Requirements of a complaintNames of parties and their addresses, the cause of action and the reliefs prayed forVerification and certification of non-forum shoppingIt must state that it is an environmental case stating the law involved. It must contain all evidence in support of the cause of action (affidavits of witnesses which must be in question and answer form, documentary evidence and if possible, object evidence. If complainant is private entity, furnish copy of complaint to appropriate government agency although not a partyNote: no filing fees required, however, such shall serve as first lien on the judgment awardRULE OF PROCEDURE WRIT OF KALIKASAN41Writ of KalikasanProper issue involves environmental damage of a magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.WHO MAY FILE A PETITION?Natural/juridical person, entity authorized by law, non-governmental organization, public interest group accredited by or registered with any government agency. (ANY FILIPINO CITIZEN)

PETITION (Sufficient in form and substanceISSUE WRITSERVICE OF WRITRESPONDENT FILES A RETURNHEARINGSUBMISSION FOR DECISIONJUDGMENTAPPEAL under Rule 45 on both questions of fact and lawIs payment of docket fee required? No fees are required!

What is the effect of the failure to file a return? Court will hear the petition ex parte.

What are the reliefs that may be granted under the Writ of Kalikasan:

Cease and Desist Order (CDO);

Order directing respondents to protect, preserve, rehabilitate or restore the environment.3. Issue order directing respondent to monitor strict compliance with the decision/order of the court4.Issue order directing respondent to make periodic reports on the execution of the final judgment.5.Other reliefs relative to the right of the people to a balanced and healthful ecology. RULE OF PROCEDURE WRIT OF CONTINUING MANDAMUS A special civil action which may be availed of to compel performance of an act specifically enjoined by law.

Permits court to retain jurisdiction after judgment in order to ensure the successful implementation of the reliefs mandated under the courts decision.Where to file petition? RTC, CA or SC

Is payment of docket fee required? Not required!

What is the nature of the proceedings?Summary (resolved within 60 days from submission for resolution WITHOUT delay)

Is there provisional remedy available while petition is pending?Yes, court may grant TEPO

CRIMINAL PROCEDUREBASIC CONCEPTS IN CRIMINAL LAWCRIME

Is the commission or omission by a person having capacity of any act which is either prohibited or compelled by law and the commission or omission of which is punishable by a proceeding brought in the name of the government whose law has been violated

FELONYCrimes punishable under the Revised Penal Code

OFFENSECrimes punishable under special law

INFRACTION/MISDEMEANORCrimes punishable by an ordinance

BASIC CONCEPTS IN CRIMINAL LAWCRIMES MALA IN SE

Wrong by its very nature and as those felonies under the RPC with the exception of some penal provisions in special penal laws which were held by the Supreme Court to be mala in se (ex: omission of voters name by COMELEC official, plunder). Intent is an element in its commission and good faith is a defense

CRIMES MALA PROHIBITA

Wrong because it is prohibited by law. Without the law punishing the act, it cannot be considered a wrong. Mere commission of the act constitute an offense and good faith is not a defense.MALA IN SEMALA PROHIBITANatureWrong by its nature (RPC)Wrong because it is prohibited by law (SPL)Good faithValid defense except crimes involving negligenceNot a valid defenseIntentElementIntent is immaterialDegree of accomplishmentTaken into accountOnly Basic Procedure for Prosecution55Procedure for Preliminary InvestigationProcedure for InquestInvestigationSEARCH AND SEIZURE CONCEPTS , DOCTRINES, PROCEDURECONSTITUTIONAL BASIS ARTICLE III Section 2The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause 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 persons or things to be seized.

CRIMINAL PROCEDURE BASIS

ARREST - Rule 11 of the Rules on Criminal ProcedureSEARCH AND SEIZURE- Rule 126 of the Rules on Criminal Procedure

SEARCH AND SEIZURE CONCEPTS , DOCTRINES, PROCEDURESCOPE OF PROTECTIONa. Available to all persons including aliens and artificial personsb. Right is personal and may be waivedc. Distraint directed against government tasked with law enforcementWHO MAY ISSUE A WARRANT

General Rule Only a judge upon fulfillment of requirementsException Orders of arrest may be issued to carry out final finding of violation of a law ( contempt, deportation order)

SEARCH WARRANTIs an order in writing issued in the name of the People of the Philippines signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court.SEARCH AND SEIZURE CONCEPTS , DOCTRINES, PROCEDUREREQUISITES OF A VALID WARRANT

Probable Cause

Determination of Probable Cause personally by a judge

After examination under oath or affirmation of the complainant and the witnesses he may produce

Particularity of descriptionPlace to be searchProperty subject of seizure

SEARCH AND SEIZURE CONCEPTS , DOCTRINES, PROCEDUREPROBABLE CAUSE FOR A SEARCH WARRANTSuch facts and circumstances which would lead a reasonably discreet and prudent man to believe than an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched.

DETERMINATION BY A JUDGE DURING APPLICATION FOR SEARCH WARRANTJudge must personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witness he may produce of facts personally known to them and attach to the record their sworn statements together with any affidavits submitted.

PARTICULARITY OF DESCRIPTIONAs specific as circumstances will ordinarily allow and need not be technically accurate.

(NOT ALLOWED- GENERAL/ SCATTERSHOT WARRANT)

SEARCH AND SEIZURE CONCEPTS , DOCTRINES, PROCEDUREWARRANTLESS SEARCHESWhen the right is voluntarily waived

Stop and Frisk

Incident to a lawful arrest

Plain view

Search of vessels and aircraft

Search of moving vehicles

Inspection of buildings and other premises for the enforcement of fire sanitary and building regulations

Under exigent and emergency circumstancesSEARCH AND SEIZURE CONCEPTS , DOCTRINES, PROCEDURE WAIVER

Right existsPerson waiving has actual or constructive knowledge of such rightActual intention to relinquish such right

UNDER EXIGENT AND EMERGENCY CIRCUMSTANCES

Hizon vs. CA (Dec. 13, 1996) - warrantless search of a fishing vessel was allowed because of the inherent mobility of the craft and the likelihood of escape before a warrant can be secured.

SEARCH AND SEIZURE CONCEPTS , DOCTRINES, PROCEDURE STOP AND FRISKRight of a police officer to stop a citizen in a street, interrogate him and pat him for weapons whenever he observes unusual conduct which leads him to conclude that criminal activity maybe afoot.

- search and seizure must precede the arrest for principle to apply.- police should introduce himself and make initial inquiries

INCIDENTAL TO LAWFUL ARREST

Rule 126 sec. 12 - search for dangerous weapons or anything as proof of the commission of the offenseRule 11 sec 2 (a) - there must be probable cause (BUY-BUST operations)

Permissible area to be searched - person of the one arrested and premises within his immediate control, search contemporaneous with arrest

SEARCH AND SEIZURE CONCEPTS , DOCTRINES, PROCEDURE VESSELS AND AIRCRAFTS Reason may elude arrest if you adopt a wait and see attitude and the circumstance call for immediate response

MOVING VEHICLES

It is justified on the ground that it is not practicable to secure a warrant because the vehicle can be moved quickly out of the locality or jurisdiction in which the warrant may be sought. It is also allowed for the purpose preventing smuggling and violation of immigration laws made in borders or constructive borders

Checkpoint search1. Routine inspection- Visual Search2. Extensive Search there must be reasonable or probable cause to believe before the search that evidence of crime is present. (ex tips from informants)Mustang Lumber, Tano vs. Socrates

SEARCH AND SEIZURE CONCEPTS , DOCTRINES, PROCEDURE EVIDENCE IN PLAIN VIEW

Prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their regular duties

Evidence was inadvertently discovered by the police who have a right to be where they are

Evidence must be immediately apparent

Plain view justified the seizure of the evidence without further search

Plain viewexposed to sight. Even if it is in a bag or container where the package proclaims itself it is still considered in plain view The area must be within the immediate control of the arrested person.

ARRESTWith WarrantPrior filing of a complaint or information.Issued only by the judge .

Without WarrantIn flagrante delicto. (Actually Committing, has just committed or is attempting to commit an(See, Hear, Proceed at once to the scene)

Person making the arrest has probable cause to believe based on personal knowledge of facts that the arrestee is responsible for the offense which has just been committed.

Republic vs. Cansino (May 26, 1962) possession of illegaly caught fish is an offense and mere possession is a crimeMaximum Period of Detention Prior to InquestNATURE OF OFFENSEPENALTYTIME TO DELIVERLIGHT PENALTIES1 day to 30 days Fine of 20012CORRECTIONAL PENALTIES1 month to 6 years Fine 200 to P6,00018 AFFLICTIVE PENALTIES6 years 1 day Fine of more than P6,00036Note: Coordinate closely with Prosecutors Office to avoid being liable for Article 125 RPCIn PD 705, delivery must be within 6 hours (Section 89) unless arrest is within the forest or far from judicial authoritiesCUSTODY AND DISPOSITION OF SEIZED ITEMS, EQUIPMENT, PARAPHERNALIA, CONVEYANCES AND INSTRUMENTSGENERAL RULE

In accordance with applicable laws or rules promulgated by the concerned government agency

IN THE ABSENCE

Follow Rule 12 Section 2-PHYSICAL INVENTORY(Apprehending Officials AUCTIONSALE (COURT)

DISPOSITION OF THE PROCEEDS(IN TRUST)Prosecution of OffensesHow are criminal actions prosecuted

Criminal actions shall be instituted as follows:

For offenses where a preliminary investigation is required pursuant to section 1 of Rule 112, by filing the complaint with the proper officer for the purpose of conducting the requisite preliminary investigation. (4/2/1

For all other offenses, by filing the complaint or information directly with the Municipal Trial Courts and Municipal Circuit Trial Courts, or the complaint with the office of the prosecutor. In Manila and other chartered cities, the complaints shall be filed with the office of the prosecutor unless otherwise provided in their charters.Prosecution of OffensesWhat is a complaint

A complaint is a sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer, or other public officer charged with the enforcement of the law violated.

What is an information

An information is an accusation in writing charging a person with an offense, subscribed by the prosecutor and filed with the court Prosecution of OffensesProsecution of Criminal OffensesComplaintInformationSubscriptionSworn statementNeed not be sworn toBy whomOffended party/public officer charged with the enforcement of the law violatedProsecutor Where filedCourt or Prosecutors OfficeAlways in courtProsecution of OffensesWho must prosecute criminal offenses

All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of a public prosecutor. In case of heavy work schedule of the public prosecutor or in the event of lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the approval of the court. Once so authorized to prosecute the criminal action, the private prosecutor shall continue to prosecute the case up to end of the trial even in the absence of a public prosecutor, unless the authority is revoked or otherwise withdrawn

Section 3 Rule 9 of the Rules of Procedure for Environmental Cases- SPECIAL PROSECUTOR MAY APPEAR IN OFFENSES WHERE THERE IS NO PRIVATE OFFENDED PARTYESTABLISHING CRIMINAL LIABILITYFORESTRY/WILDLIFE CASES/FISHERIESThe administrative confiscation proceedings/investigation report may come before or after the filing of the complaint

Filing of Criminal complaintBefore administrative confiscation the order of confiscation may be submitted as supplemental documetary evidence.

After admin confiscation all documents shall have been collected and the criminal case may proceed unhampered.

INVESTIGATION/DOCUMENTATIONRequired attachment in affidavit complaint/complaintQ and A Affidavit of apprehending/seizing officer/witness (AM 12-8-8)Apprehension receipt/report which must be fully filled up (otherwise case may be dismissed on technicality-defendant is not among those apprehended)Seizure Receipt/ Tally Sheet/Inventory Report/Compliance Report Representative samples Order of Confiscation/SeizurePhotograph/Video-observe authentication rulesFor RA 9147 attach a wildlife certification and List of Species Documents must show chain of custody

Under new Rule of Procedure for the cases, affidavits shall be in Q and A form which shall become the direct testimony of witnesses.ELEMENTS TO BE PROVEN andRECOMMENDED EVIDENCEVIOLATIONELEMENTS

EVIDENCEROLE OF SECTORSSection 88 of RA 8550USE OF EXPLOSIVES...Use of Explosive...Use is not for scientific purposes and not approved by BFAR and the LGU

1. Photograph of the place before and after the incident occured 2. Fish sample and or result of Fish Examination3. Possession of dynamite or poisonous prima facie evidence 4. affidavitsBantay Dagat to gather evidenceBrgy Chairman or LGU repPNP Maritime Group investigate and prosecutePCG to apprehend violatorsELEMENTS TO BE PROVEN andRECOMMENDED EVIDENCEVIOLATIONELEMENTS

EVIDENCEROLE OF SECTORSSection 97 of RA 8550FISHING OR TAKING OF RARE, THREATENED OR ENDANGERED SPECIESFishing or Taking of aquatic resourcesClassfied as rare, threatened or endangeredClassification based on CITES List as determined by DA

Possession of the endangered speciesAffidavits re apprehensionCertification that it is endangered Photographs Bantay Dagat to gather evidenceBrgy Chairman or LGU repPNP Maritime Group investigate and prosecute(jurisdiction starts from 15 km from shoreline)PCG to apprehend violatorsCOMPLAINT(ANYONE MAY FILE in Court or Prosecutors OfficeFILE INFORMATIONJUDGMENTARRAIGNMENT AND PLEAPRE-TRIALPROBABLE CAUSETRIALDISMISSNOYESWhat is the ground for the lifting of a TEPO?The TEPO may be dissolved if it appears after hearing that the issuance/continuance would cause irreperable damage to the party enjoined while the applicant may be fully compensated. The party enjoined shall post sufficient bond.Manila Bay Case80What constitute a judgment in a citizens suit

The court may grant protectionpreservation or rehabilitation of the environment and the payment of attorneys fees, costs of suit and other litigation expenses. It may also require the violator to submit a program of rehabilitation or restoration of the environment, the costs of which shall be borne by the violator, or to contribute to a special trust fund for that purpose subject to the control of the court

Judgment is executory pending appeal unless restrained by appelate courtA TEPO may be converted into an EPO or the court may grant a writ of continuing mandamusThe court may order the submission of reports on the execution of the judgmentManila Bay Case82MABBALO!