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ADMINISTRATIVE ORDERS
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ADMINISTRATIVE ORDER NO. 123 -
IMPOSING THE PENALTY OF FINE EQUIVALENT TO ONE MONTH'S SALARY ON
PROVINCIAL PROSECUTOR CLAUDIO NISTAL OF AGUSAN DEL SUR AND APPROVAL OF
HIS APPLICATION FOR OPTIONAL RETIREMENT
This refers to the administrative complaint
filed against Provincial Prosecutor Claudio Nistal of Agusan del Sur
for Irregularities in the Performance of Duty amounting to Inefficiency
and Incompetence in the Performance of Official Duties in connection
with the order of dismissal issued by him of a criminal complaint for
Rape with Homicide.
Records show that on May 24, 1990, an affidavit/complaint was executed
by Josefina Margin at the PNP Station, San Francisco, Agusan del Sur
accusing Daniel Tomas, Saturnino Pastor, Pablo Lonzaga and Pablito
Tukbo of having raped and killed her daughter on May 23, 1990 at around
8:00 P.M. on May 30, 1990, P/Sgt. Paciano P. Ladera filed the complaint
together with the sworn statements of other witnesses docketed as
Criminal Case No. 1953 before Judge Ciriaco C. Arino of the Municipal
Circuit Trial Court of San Francisco, Rosario and Bunawan, Agusan del
Sur.
On June 15, 1990, after counter-affidavits were filed by the accused,
Judge Arino issued a resolution finding probable cause against the
accused and ordered the records of the case of forwarded to the office
of the Provincial Prosecutor of Agusan del Sur for appropriate action.
The records were received by the Provincial Prosecutor's Office on June
18, 1990 and, on June 20, 1990, respondent assigned the case to
Prosecutor Victoriano Pag-ong who, the following day, subpoenaed P/Sgt.
Paciano Ladera to appear on June 28, 1990 for preliminary investigation.
But on June 28, 1990, while the records of the case were still with
Prosecutor Pag-ong, respondent issued a resolution dismissing the case
on the ground of insufficiency of evidence on the basis of which the
accused were released from detention.
On July 11, 1990, Prosecutor Pag-ong issued a subpoena to Provincial
Warden Sulapas to explain the reported release of the accused.
On the same day, the Provincial Warden Sulapas appeared before
Prosecutor Pag-ong's office, and furnished him with a copy of
respondent's resolution.
Hence, on the same day, Prosecutor Pag-ong, in a letter to respondent,
returned the records of the case to respondent since the latter had
opted to personally act on the case.
However, on July 12, 1990 respondent issued a Supplemental Resolution
lifting his June 28, 1990 resolution and directing that an information
for Rape with Homicide be filed.
On July 13, 1990, the victim's parents learned of the release of the
accused and on July 16, 1990, after meeting with respondent who offered
no explanation for his action, sent a letter to the Department of
Justice requesting for an investigation of the actuations of respondent.
On July 18, 1990, the respondent filed the Information for Rape and
Homicide with the Regional Trial Court pursuant to his Supplemental
Resolution dated July 12, 1990.
On July 24, 1990, the Undersecretary of Justice Silvestre Bello sent a
1st Indorsement to respondent directing him to explain his patently
conflicting resolutions which are "bereft of any basis, in fact and in
law . . .".
In his 2nd Indorsement dated August 12, 1990, addressed to the Hon.
Silvestre H. Bello III, respondent explained that he issued resolution
dated June 28, 1990 dismissing the case which resulted in the immediate
release of Daniel Tomas, et al., on the strength of the representation
of the father of the accused that the case had already been amicably
settled and promise to submit the written agreement with the
complainant the following day; but that he recalled this order and
filed the case in court when the father of the accused failed to submit
the written amicable settlement.
On August 24, 1990, Eugenio Margin sent a letter to Undersecretary
Bello denying that any amicable settlement had been discussed.
On February 4, 1991, Undersecretary Bello instructed Eugenio Margin to
send his complaint in a form of a sworn statement.
On February 12, 1991, Eugenio Megin filed his original complaint dated
July 16, 1990 this time duly sworn to on February 5, 1991. The
complaint was filed with the Department of Justice and the Ombudsman.
The case was assigned to State Prosecutor Hernani Barrios for
investigation.
In his position paper dated October 4, 1991, respondent submitted that
he signed his June 28, 1990 resolution without full knowledge of the
facts and surrounding circumstances because for the past two (2) years,
he had been suffering from poor retentive memory and impaired judgment
due to neurological imbalance, as certified by a Dr. Rogelio Hunching
H. Chua. However, he claims that the unintentional dismissal of the
case was immediately rectified by his supplemental resolution, the
filing of the information and the rearrest of the accused and that due
to his mental problems, he has decided to file an application for an
optional retirement.
After evaluating the evidence and papers submitted in the
administrative case, Acting Secretary of Justice Silvestre H. Bello III
recommended the imposition of the penalty of fine equivalent to a
salary of six (6) months upon respondent anchored on the following
findings of irregularities in the issuance of respondent's resolution
dated June 28, 1990.
First, respondent violated Rule 112, Sec. 5 of the Rules of Court
which mandates that should the provincial or city fiscal disagree with
the findings of the investigating judge on the existence of probable
cause, the fiscal's ruling shall prevail but he must explain his action
in writing furnishing the parties with copies of the resolution. As
found by Acting Secretary Bello: Respondent violated the rule of
procedure when he issued the resolution dated June 28, 1990 dismissing
the case, as he did not explain his action as to how he disagree's with
the findings of the investigating judge on the existence of the
probable cause. What he merely stated was that after a careful perusal
of the evidence, he found them to be insufficient to establish a prima
facie case. If his resolution is to prevail over that of the
investigating judge, he has to resolve the factual and legal issues
presented by the case, otherwise, he is required to file the
information when the evidence on record fully justify the latter
action. Respondent also did not furnish the parties with copies of the
resolution. He also stated that a petition for reinvestigation had been
filed before his office pursuant to which he made a reinvestigation.
However, no such petition for reinvestigation can be found in the
records. If there was one, then the petition should have been handled
by Prosecutor Pag-ong to whom the case was assigned.
Second, another irregularity committed by respondent is "the fact that
while the case was assigned to Prosecutor Pag-ong, respondent took
action by himself." Indeed, this was not in accordance with set
practice as the records of the case were still with the assistant
Prosecutor whom he assigned to investigate and study the case. Pursuant
to a memorandum circular of the Secretary of Justice, the assistant
prosecutor has ninety (90) days within which to solve the case and the
provincial/city prosecutor has ten (10) days from receipt thereof to
take appropriate action. In this case, respondent acted on the case
eight days after the case was assigned by him to Assistant Prosecutor
Pag-ong without waiting for the latter's recommendation of informing
the Assistant Prosecutor and the complaint of his action.
The commission of these irregularities was admitted by respondent but
he offered the defense that he was suffering from mental imbalance and
that no prejudice resulted because the information was eventually filed.
However, the recommendation of the Acting Secretary did not discuss the
defense of the respondent that his actions were caused by neurological
imbalance, resulting in impaired judgment and poor memory.
Parenthetically, respondent's position paper dated October 4, 1991
pleading lack of knowledge of the case due to neurological abnormality
does not mention that he "drank alcoholic beverage heavily" as alleged
in the narration of facts of the Acting Secretary. At any rate, the
veracity of this claim of mental ailment as well as its implication on
respondent's administrative liability should not have been ignored as
these issues are essential in giving determining culpability. The
recommendation does not discuss the result of the investigation
conducted by Special Prosecutor Hernani Barrios.
A reinvestigation of this case in order merely to clarify the truth of
respondent's defense appears to be a futile exercise considering that
the acting Secretary has recommended the approval of respondent's
application for optional retirement, which is based on his alleged
mental condition. This recommendation is tantamount to giving credence
to the allegation and supporting medical certifications that respondent
was indeed suffering from mental imbalance.
However, the irregularities did result in prejudice to the
administration of justice because the accused were set free thereby
straining the resources of the government in effecting their rearrest
and causing anxiety to the victim, her relatives and witnesses.
Respondent did not act promptly to prevent prejudice to public service
by filing his application for optional retirement upon the first signs
of mental imbalance.
On the other hand, there is no finding that respondent received
monetary consideration in exchange for the initial dismissal of the
criminal case or of any cause for the irregularities but in fact the
Acting Secretary cites respondent's previous exemplary performance and
conduct. This exemplary record and his mental/physical condition should
serve as extenuating circumstances.
Considering the aforesaid extenuating circumstances, respondent
deserves a lesser penalty of fine equivalent to one month's salary as
this would suffice to serve as an example to others that laxity in the
performance of duty will not be tolerated.
WHEREFORE, respondent is found GUILTY of committing irregularities in
the performance of duties and meted a penalty of FINE equivalent to one
month's salary. This sanction does not constitute an impediment to
enjoyment of retirement benefits, hence this application for optional
retirement is hereby approved.
Done in the City of Manila,
this 14th day of March, in the year of Our Lord, nineteen hundred and
ninety-four.
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