REPUBLIC OF THE PHILIPPINES

~anoiganhalJanQuezon City

FIRST DIVISION

PEOPLE OF THE PHILIPPINES,Petitioner,

- versus - CRIM. CASE NO. SB-16-CRM-1298For: Violation of Section 5 (d) of P.D. 449

DARELL B. DELA FLOR, ET AL.,Accused.

Present:

DE LA CRUZ, J., Chairperson

ECONG, J.CALDONA, JJ.

Promulgated on:"I

AUG 1 7 1017 d~

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RESOLUTION

DE LA CRUZ, J.

This resolves accused Darell B. Dela Flor's undated Motion toDismiss Case Based on Inordinate Delay, and the prosecution'sComment/Opposition, dated August 8, 2017, thereto.

Accused Dela Flor moves for the dismissal of this case on theground that the Office of the Ombudsman (OMB) committedinordinate delay when it devoted more than five (5) years to conductthe preliminary investigation, reckoned from the filing of thecomplaint-affidavits on February 2011 and/or August 2011 to thefiling of the Information before the Sandiganbayan on December 19,2016.

According to accused Dela Fiar, the delay, to which he had nopart, and unjustified by the OMB, infringed his constitutional right toa speedy disposition of his case.

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In its comment/opposition, the prosecution disagrees that thepreliminary investigation was attended with inordinate delay. Itcontends that the preliminary investigation does not automaticallystart from the filing or receipt of the complaint by the OMB, becausethe complaint has still to be referred to an investigator for evaluation,verification and recommendation. It is only after the evaluation andverification of the allegations in the complaint that a formal criminalcomplaint is filed.

The prosecution points out that in this case, the formalcomplaint was executed and signed by the Graft InvestigationOfficer of the FIO of the OMB-Visayas (1loilo City) on March 21,2014. The accused were directed to submit counter-affidavits andcontroverting evidence in an Order, dated July 24, 2014, which wasreleased by the OMB-Visayas on August 5, 2014. Prior to the filingof the formal criminal complaint, the accused were not yet subjectedto any investigation.

Finally, the prosecution argues that this is the first time thataccused Dela Flor raises the issue of inordinate delay.

The Courrt finds accused Dela Flor's motion impressed withmerit.

In the determination of whether the defendant has beendenied his right to a speedy disposition of a case, the following maybe considered and balanced: (1) the length of delay; (2) the reasonsfor the delay; (3) the assertion or failure to assert such right by theaccused; and (4) the prejudice caused by the delay.' None ofthese elements, however, is either a necessary or sufficientcondition; they, are related and must be considered together withother relevant. circumstances. These factors have no talismaticqualities as courts must still engage in a difficult and sensitivebalancing process."

The procedural precursors and circumstances of this casesupport accused Dela Flor's position that the preliminaryinvestigation took a protracted period to complete and the delay wasnot sufficiently justified.

1 Coscolluela v. Sandiganbayan, supra, pp. 195-1962 Remulla v. SandigantJayan (Second Division), G.R No. 218040, April 17, 2017

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This case stemmed from the Affidavit-Complaint, datedFebruary 18, 2011, of one Rito J. Abarientos against accused DelaFlor and his eo-accused Remy S. Escander which was received bythe OMB-Visayas, Regional Office VI, Iloilo City on February 21,2011. The same complainant filed another Affidavit-Complaint,dated August 8, 2011, for violation of Section 3(e) of Republic Act3019, otherwise known as the Anti-Graft and Corrupt Practies Act,against accused Dela Flor and his eo-accused Larry O. Sebullen.

Acting on the two (2) affidavit-complaints, the FieldInvestigation Office (FIO) of the OMB-Visayas (lloilo City), filed aComplaint, dated March 21,2014 with the OMB-Visayas (Cebu City)against accused Dela Flor, Escander, and Sebullen for violation ofSection 3(e) of RA 3019, Section 5(d) of PD 449, and for abuse ofauthority.

In an Order, dated July 24, 2014, the OMB-Visayas (CebuCity), directed the accused to file their respective counter-affidavitswhich they complied with.

On May 4, 2016, the OMB-Main Office issued a JointResolution, dismissing the charge for violation of Section 3(e) of RA3019 and the administrative case for abuse of authority, but foundprobable cause to indict accused Dela Flor, Escander and Sebullenfor violation of Section 5(d) of PD 449. The joint resolution wasapproved by Ombudsman Conchita Carpio-Morales on May 6, 2016.

On May! 30, 2016, accused Dela Flor moved for thereconsideration of the May 4, 2016 Joint Resolution, but the samewas denied in an Order, dated July 8,2016, which was approved bythe Ombudsman on July 18, 2016.

On December 19, 2016, the instant Information was filedbefore this Court.

The records will show that indeed, the preliminaryinvestigation rolled for more than five (5) years counted from thefiling of the complaint-affidavit of complainant Abarientos inFebruary or August 2011 to the filing of the Information before theSandiganbayan on December 19, 2016.

The Court takes exception to the prosecution's contention thatthe period of preliminary investigation should be reckoned only upon

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the filing of the formal criminal complaint. This postulation isinconsistent to-the pronouncement in Torres v. Sandiganbayan,3where the Supreme Court held that preliminary investigation alsocovers the fact-finding stage. Thus:

We find it necessary to emphasize that the speedydisposition of cases covers not only the period within which thepreliminary investigation was conducted, but also all stages to .which the accused is subjected, even including fact-findinginvestigations conducted prior to the preliminary investigationproper. We explained in Dansal v. Fernandez, Sr.:4

Initially embodied in Section 16, Article IV of the 1973Constitution, the aforesaid constitutional provision is one of threeprovisions mandating speedier dispensation of justice. Itguarantees the right of all persons to "a speedy dispositionof their: case"; includes within its contemplation the periodsbefore, during and after trial, and affords broader protectionthan Section 14(2), which guarantees just the right to a speedytrial. It is more embracing than the protection under Article VII,Section 15, which covers only the period after the submission ofthe case. The present constitutional provision applies to civil,criminal and administrative cases. (citations omitted; emphasissupplied)

The prosecution has not offered any acceptable explanationfor the more than 5-year delay in the conduct of the preliminaryinvestigation. It simply recited the timeline of the investigation whichis not disputed anyway. There is no proof either, much less, anallegation, that the case involves intricate facts, voluminous records,or complex issues.

The unexplained delay weighs against the prosecution to alarge extent that the failure of accused Dela Flor to invoke his rightto speedy disposition of his case at the first instance, cannot even atleast strike a balance or compensate the unjustified lag. TheSupreme Court in the more recent case of Remulle' has clarifiedthat the utter failure of the prosecution to explain the delay in theproceedings outweighs the lack of follow-ups from the accused. TheHigh Tribunal said so after reconciling the seeming inconsistenciesin the pronouncements of the Supreme Court in the cases ofTilendo v. Ombudsman,6 Guerrero v. CA,7 Bernat v.

3 G.R. Nos. 221562-69, October 5, 20164 327 SeRA 1455 Supra6559 PhiL 739 (2007)7327 PhiL 496 (1996)

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Sandiganbayan,8 and Tello v. Peoote" (first set), and the cases ofCoscolluela v. Sandiganbayan 10 and its related cases 11 (secondset). Thus:

The first set of cases shows that the criminal cases were notdismissed because of the non-assertion of the accused of their rightto a speedy -disposition of cases or speedy trial. Other factors in thebalancing test were also considered by the Court, particularly, thereason for the delay in the proceedings and the prejudice causedby the delay.

In Guerrero and Bernat, it was held that the delay wasacceptable because there was a necessity to retake the testimoniesof the witnesses due to the lost TSN. The courts could not haveadjudicated the case without the TSN. On the other hand, inTilendo, the Court accepted the explanation of the OSP that therewas no inordinate delay because the NBl's inquiry was not part ofthe preliminary investigation. Hence, as the length of delay in thesecases were properly justified by the prosecution and the accusedtherein failed to take steps to accelerate their cases, the Courtfound that there was no prejudice caused, which would warrant theassertion of their right to a speedy disposition of cases.

In the second set of cases, the lengthy delay in theproceedings against the accused therein was not satisfactorilyexplained. In Cervantes, the prosecution provided a lacklusterexcuse that there was no inordinate delay because the case wasnot politically motivated. In People, the filing of the case in courtwas drastically delayed because it was subjected to unnecessaryreviews, and the Ombudsman basically failed to decide whether tofile the case or not. In Inocentes, there was unwarranted delay inthe filing of the case due to the lethargic transfer of the recordsfrom the RTC to the Sandiganbayan. Finally, in Coscolluela, theOmbudsman could not give an explanation why the preliminaryinvestigation was delayed for six years.

Essentially, the Court found in those cases that the Statemiserably failed to give an acceptable reason for the extensivedelay. Due to the manifest prejudice caused to the accused therein,the Court no longer gave weighty consideration to their lack ofobjection during the period of delay. It was emphasized in thosecases that it was the duty of the prosecutor to expedite theprosecution of the case regardless if the accused failed to object tothe delay.

8472 Phil. 869 (2004)9606 Phil. 514 (2009)10 Supra11 Cervantes v. Sandiganbayan, 366 Phi I. 602 (1999); People v. Sandiganabayan, 798 SCRA 36; Inocentes v. People,

796 SCRA 34

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WHEREFORE, in light of all the foregoing, accused DelaFlor's motion to dismiss is hereby GRANTED, and the instant caseis hereby ordered DISMISSED, for violation of the right of accusedDela Flor to a speedy disposition of his case.

Considering that this dismissal is tantamount to an acquittal,the hold departure order issued against accused Dela Flor byreason of this case is hereby LIFTED and SET ASIDE, and thebond he posted for his provisional liberty is ordered RELEASED,subject to the usual accounting and auditing procedures.

SO ORDERED.

EFREN ~!.4E LA CRUZAss~J{afe Justice

GERAtD~tf FtfiH ~r~CONGAssociate Justice

~ Utt-_Ctu ifM L_.

----eE~·G-LARDO M. cACBoNAssociate Justice