SANDIGANBAYANsb.judiciary.gov.ph/RESOLUTIONS/2017/I_Crim_SB-15-CRM-0135_Peo… · SANDIGANBAYAN Quezon City SPECIAL SIXTH DIVISION PEOPLE OF THE PHILIPPINES, ... On November 23, 2009,

Republic of the Philippines SANDIGANBAYAN

Quezon City

SPECIAL SIXTH DIVISION

PEOPLE OF THE PHILIPPINES,

Plaintiff,

-versus- SB- 15 -CRM-O 135 For: Violation of Section 3 (e) of R. A. No. 3019

ISAIAS B. UBANA II, BERNADETTE EUDELA NIEVA and LEONARDO V. REVIJIELTA,

Accused,

x----------------------------------------PEOPLE OF THE PHILIPPINES,

Plaintiff,

-versus-

ISAIAS B. UBANA II and BERNADETTE EU])ELA NIEVA,

Accused,

x---------------------

x

SB-15-CRM-0136 For: Falsification

PRESENT:

PONFERRADA, J., Chairperson MIRANDA, MUSNGI', FERNANDEZ, B. 2, &

PAHTMNA3 , JJ.

Promulgated: lIP 06 2017 JAI

'Special Member of the 6 1 Division as per A.O. No. 124-2017 dated April 4, 2017. 2 Special Member of the Special 61h Division as per A. 0. No. 8-C-2017 dated August 23, 2017.

Special $4ember of the Special 6th Division as per A. 0. No. 8-C-2017 dated August 23, 2017.

-Afr'

RESOLUTION 2 People v. Isaias B. Ubana II, et al,, SB- 15-CRM-0 135-0136

RESOLUTION

MIRANDA, J:

This resolves: 1) accused Leonardo V. Revuelta's (Revuelta) Motion to Dismiss dated January 29, 2017; 2) the Prosecution's Comment-Opposition dated February 23, 2017 (Re: accused Revuelta' s Motion to Dismiss dated January 29, 2017); 3) accused Revuelta's Reply dated March 10, 2017 (to the Comment-Opposition dated February 23, 2017 with Prayer to Admit); and 4) accused Isaias B. Ubana II (Ubana) and Bernadette Eudela.Nieva's (Nieva) Manifestation dated March 14, 2017.

In his Motion to Dismiss, accused Revuelta claims that his right to the speedy disposition of his case was violated after the Office of the Ombudsman took more than six (6) years to terminate preliminary investigation of these cases. He invokes the immediate dismissal of the case filed against him for violation of Section 3(e) of R.A. No. 3019 following Supreme Court rulings on the violation of the constitutional right to the speedy disposition of cases.

In its comment-opposition, the Prosecution through the Office of the Special Prosecutor (OSP) attributes the time it is taking to 'prosecute these cases to the submission of the following additional evidence by the complainants: 1) Commission on Audit's (COA) audit observation memorandum on September 25, 2011; and 2) COA's fact-finding investigation report on October 11, 2011. The OSP claims that in view of this supervening event, the Office of the Deputy Ombudsman for Luzon had to first ascertain the existence and authenticity of said documents before resolving the complaints against accused Revuelta. The OSP asserts that accused Revuelta was not unreasonably prejudiced as he was previously given all the opportunity to submit controverting evidence during the preliminary investigation. In fact, after the Ombudsman found probable cause for violation of Section 3(e) of R.A. No. 3019 against him, accused Revuelta sought a partial reconsideration' of the said resolution.

In his Reply, accused Revuelta describes as unsatisfactory the explanation of the Prosecution in the conduct of preliminary investigation. He claims that the period of alleged delay should be reckoned from the commencement of the fact-finding investigation until the filing of the informations in Court, not from the order requiring him to submit his counter-

' Order dated January 12, 2015, Records, vol. 1, pp. 25-26.

RESOLUTION 3 People v. Isaias B. Ubana II, et al., SB-i 5-CRM-0 135-0136

affidavit. He asserts that it is not his duty to invoke and follow-up the prosecution of his case.

In a Manifestation dated March 14, 2017, accused Ubana and Nieva adopted the Motion to Dismiss filed by their co-accused Revuelta. They also sought the dismissal of the Falsification case against them.

FACTUAL ANTECEDENTS

On March 16, 2009, the Office of the Deputy Ombudsman for Luzon received a Complaint-Affidavit dated March 9, 2009 from Justiniano N. Calvario, Guillermo 0. Maulawin, Jesus A. Astillo, Oscar A. Aguirre and Albelio C. Reyes (Complainants) charging Isaias Ubana, Municipal Mayor of Lopez, Quezon with Malversation, Falsification and Violation of R.A. No. 3019.1 Said complaint-affidavit alleged irregularities in the procurement and deliveries of glass wares and plastic wares to recipient barängays in the municipality. 6 On March 23, 2009, the complaint-affidavit was docketed for fact-finding investigation.'

On April 9, 2009 and August 13, 2009, the Deputy Ombudsman for Luzon directed the Municipal Accountant of Lopez, Quezon and COA LGS-Cluster of Lucena, respectively, to submit documents relevant to the investigation. 8 On August 28, 2009, the fact-finding investigation was terminated and the case was re-docketed as a criminal case.

On November 9, 2009, the said criminal case was assigned to Graft Investigation and Prosecution Officer (GIPO) J.S. Ong (Ong) for preliminary investigation. On November 23, 2009, GIPO J.S. Ong received the records of the case. 10

The preliminary investigation ensued against accused Ubana being the only respondent in the case. On November 16, 2009, the Deputy Ombudsman for Luzon issued a subpoena to accused Ubana for the submission of his counter-affidavit. 12

Complaint-Affidavit dated March 9, 2009, Records, Vol. 1, pp.27-28. Ibid Comment-Opposition dated February 23, 2017, Records, Vol. 2, pp. 132-147, 7.

8 lbid 9 Comment-Opposition dated February 23, 2017, Records, Vol. 2, pp. 132-147, 8. 10 Ibid U Comment-Opposition dated February 23, 2017, Records, Vol. 2, pp. 132-147,11. ' 2 Supra, 9.


On December 17, 2009, the Deputy Ombudsman for Luzon unloaded the case to GIPO Albert Almojuela (Almojuela).' 3

On Janu&y 5, 2010, accused Ubana filed a Motion for Extension of Time to Submit Counter-affidavit. 14 On January 26,2010, for the second time, accused Ubana sought an extension of time to submit his counter-affidavit. 15

This was opposed by the complainants on February 3, 2010.16 On February 101, 2010 9 accused Ubana filed his third Motion for Extension of Time to Submit Counter-affidavit. 17 After filing three (3) Motions for Extension of Time to Submit Counter-Affidavit, accused Ubana finally submitted his Counter-Affidavit dated February 18, 20 10, 11 or three (3) months and two (2) days from the date of issuance of the subpoena.

On April 18, 2011, the case was re-assigned to GIPO Expedito Allado, Jr. (Allado, Jr.). 19 In a Memorandum dated September 12, 2011, GIPO Allado, Jr. sought the inclusion of accused Revuelta and Nieva, and co-respondents Abelia Norada Villasenor (Villasenor), Hermes Arche Argante (Argante), and Esmeraldo L. Erandio (Erandio) in the case. 20

On September 21, 2011, the Deputy Ombudsman for Luzon issued an order directing accused Revuelta and Nieva, and co-respondents Villasenor, Argante, and Erandio to submit their counter-affidavits. 2 '

• Accused Revuelta and Nieva failed to submit their counter-affidavits despite personal receipt of the order to file the same. 22 From the foregoing, the investigatory process against accused Revuelta and Nieva started only when they were impleaded as co-respondents in the case on September 12, 2011 or two (2) years, five (5) months and twenty-six (26) days after the filing of the complaint-affidavit, or one (1) year, five (5) months and three (3) days after the start of the preliminary investigation against accused Ubana.

Pending resolution of the case, complainants submitted the COA audit observation memorandum on September 25, 2011 and COA fact-finding investigation report on October 26, 2011.23 On September 25, 2012, the

' 3 lbid ' 4 1d ' 5 1d ' 6 1d ' 7 1d. 18 Counter-Affidavit dated February 18, 2010, Records, Vol. 1, pp.46-81. 19 Comment-Opposition dated February 23, 2017, Records, Vol. 2, pp. 1 32-147, 9. 20 Jbjd 21 1d 22 Supra, 11. 23 Ibid.

-A

RESOLUTION People v. Isaias B. Ubana II, et al., SB-i 5-CRM-0 135-0136

complainants sought the admission of said documents as additional evidence.24

This prompted the Deputy Ombudsman for Luzon to re-evaluate the records .21 On March 4, 2013, the case was transferred to Ombudsman-Zero Backlog Unit (ZBU) for continuation of the preliminary investigation. 26 The Ombudsman-ZBU then issued an Order dated July 15, 2013 directing the accused and their co-respondents to submif their comments on the said COA audit observation memorandum and fact-finding report submitted by the complainants.27

Within the period July 24, 2013 to August 6, 2,013, accused Ubana and Nieva and their co-respondents, filed separate motions seeking an extension of time to submit their comments. 21 On August 27, 2013, accused Ubana and Nieva and their co-respondents, submitted their comments on the COA memorandum and report. 29

On August 30, 2013, the Ombudsman-ZBU directed COA to produce a certified copy of its report in the case. 30 Dissatisfied with their 2011 reports, COA' s Fraud Audit Office conducted another fact-finding investigation which resulted in a 2013 Fact-Finding Report. 3 ' On September 6, 2013, complainants filed a motion for the immediate resolution of the case. 32

On August 18, 2014, a draft resolution finding probable cause for Violation of R.A. No. 3019 against accused Ubana, Nieva and Revuelta, and for Falsification against accused Ubana and Nieva, and dismissing the charges against respondents Villasenor, Argante and Erandio for lack of probable cause, was submitted for approval by Assistant Ombudsman Leilanie Bernadette C. Cabras (Cabras) to Ombudsman Conchita Carpio-Morales (Carpio-Morales). ' On August 20, 2014, Ombudsman Carpio-Morales approved the said draft resolution. 34

24 Comment-Opposition dated February 23, 2017, Records, Vol. 2, pp. 1 32-147, 12. 25 Ibid 26 Id 27

28 Comment-Opposition dated February 23, 2017, Records, Vol. 2, pp. 132-147, 10. 29 Ibid 30 1d "Resolution dated August 18, 2014, Records, Vol. 1, pp. 8-24, 11-12. 32 Supra, 28. 13 Resolution dated August 18, 2014 recommending the filing of the criminal charges for Violation of Section 3(e) of R.A. 3019 against accused Ijbana, Nieva and Revuelta, and for Falsification against accused Ubana and Nieva, and dismissing the charges against respondents Villasenor, Argante and Erandio for lack of probable cause.

Ibid.

RESOLUTION 6 People v. Isaias B. Ubana II, et al., SB- i 5-CRM-0 135-0136

Thereafter, accused Ubana, Nieva and Revuelta sought a partial reconsideration of the same. 35 This was denied by the Ombudsman on January 301 2015.16 Thereafter, the OSP filed the informations in these cases before this Court on July 1, 2015, or five (5) months, nineteen (19) days after the denial of their motion for partial reconsideration.

The above-stated incidents can be summarized in a table as follows:

INCIDENT DATE

A Complaint-Affidavit dated March 9, 2009 for March 16, 2009 Grave 'Misconduct and Dishonesty, Violation of R.A. 3019 and Falsification against accused Ubana was received by the Office of the Deputy. Ombudsman for Luzon The Office of the Deputy Ombudsman for Luzon March 23, 2009 evaluated the said complaint-affidavit. The Deputy Ombudsman for Luzon directed the April 14, 2009 Municipal Accountant of Lopez, Quezon to submit documents relevant to the case. The Municipal Accountant of Lopez, Quezon wrote May 14, 2009 a letter to the Ombudsman for Luzon in response to the said order. The Deputy Ombudsman for Luzon directed the August 13, 2009 C'OA LGS-Cluster of Lucena to submit documents relevant to the case. The COA LGS-Cluster of Lucena submitted the August 18, 2009 documents required by the Deputy Ombudsman for Luzon. The Deputy Ombudsman for Luzon terminated the August 28, 2009 fact-finding investigation. The complaint was re- docketed as Case No. OMB-L-C-09051 7-1 against accused Ubana. The Deputy Ombudsman for Luzon assigned the November 9, 2009 case to GIPO J.S. Ong for preliminary investigation. (received by GIPO

Ong on November 23 5 2009)

The Deputy Ombudsman for Luzon issued a November 16, 2009 subpoena directing accused Ubana to submit his counter-affidavit. The Deputy Ombudsman for Luzon unloaded the December 17, 2009 case to GIPO Almojuela.

Supra, 4. 36 Jbjd


Accused Ubana filed a Motion for Extension of Time January 5; 2010 to Submit Counter-Affidavit. Accused Ubana filed his 2nd Motion for Extension of January 26, 2010 Time to Submit Counter-Affidavit. Complainants filed their Opposition to Accused February 3, 2010 Ubana's Motion for Extension. Accused Ubana submitted his 3' Motion for February 10, 2010 Extension of Time to Submit Counter-Affidavit. Accused Ubana submitted his Counter-Affidavit February 18, 2010 dated February 18, 2010. The Deputy Ombudsman for Luzon re-assigned the April 18, 2011 case to GIPO Allado, Jr., of EIO- Bureau B. GIPO Allado, Jr. requested the inclusion of accused September 12, 2011 Revuelta, Nieva, and co-respondents Villasenor, Argante, and Erandio in the preliminary investigation. The Deputy Ombudsman for Luzon issued a September 2 1,2011 subpoena to accused Revuelta requiring the submission of his counter-affidavit. The Deputy Ombudsman for Luzon issued a September 21, 2011 subpoena to accused Nieva, and co-respondents Villaseflor, Argante, and Erandio requiring the submission of their counter-affidavits. Complainants submitted the COA audit observation September 25, 2011 memorandum as an additional evidence in the case. Respondents Villaseflor, Argante, and Erandio filed October 24, 2011 a Motion for Extension of Time to Submit Counter- Affidavit. Complainants submitted the COA fact-finding October 26, 2011 investigation report also as an additional evidence in the case. Respondents Villaseflor, Argante, and Erandio November 22, 2011 submitted their Joint Counter-Affidavit dated November 17, 2011. Complainants filed a Motion to Admit the COA September 25, 2012 memorandum and report as additional evidence with Motion to Issue Subpoena to COA. The Deputy Ombudsman for Luzon remanded the March 4, 2013 case to the Zero Backlog Unit (ZBU) for continuation of the preliminary investigation.

The Ombudsman-ZBU issued an order to the July 15, 2013 accused and their co-respondents requiring the submission of their comment on the COA memorandum and report.


ni L!J

Accused Ubana and Nieva, and co-respondents Various dates Villasenor, Argante, and Erandio filed several (July 24, 2013 to Motions for Extension of Time to File Comment on August 6, 2013 the .COA memorandum and report. Accused Ubana filed a Motion Requesting Copies of August 11,2013 Annexes attached to the COA report. Accused Ubana and Nieva, and co-respondents August 27, 2013 Villasenor, Argante, and Erandio submitted their comments. The Ombudsman-ZBU issued a subpoena to COA August 30, 2013 requiring the submission of the certified true copy of its report. Complainants filed a Motion Requesting Copies of September 6, 2013 Recent Orders with Manifestation seeking the immediate resolution of the case. Assistant Ombudsman Cabras submitted for August 18, 2014 approval her draft resolution 37 to Ombudsman Carpio-Morales. Ombudsman Carpio-Morales approved the draft August 20, 2014 resolution in these cases. Ombudsman Carpio-Morales denied the Motion for January 30, 2015 Partial Reconsideration filed by accused Ubana, Nieva and Revuelta. The OSP filed the informations in these cases with July 1, 2015 the Sandiganbayan.

DISCUSSION AND RULING

A review of the records will show that the Motion to Dismiss lacks merit and should be denied.

The right to the speedy disposition of cases is enshrined in Article III of the Constitution which states:

Section 16 All persons shall have the right to a speedy disposition of their cases before alijudicial, quasi-judicial, or administrative bodies.

37 Supra, 33.


The constitutional right to a speedy disposition of cases is not limited to the accused in criminal proceedings but extends to all parties in all cases, including civil and administrative cases, and in all proceedings, including judicial and quasi-judicial hearings. Hence, under the Constitution, any party to a case may demand expeditious action from all officials who are tasked with the administration of justice. 38

The concept of "speedy disposition of cases", like "speedy trial", is, however, relative or flexible, such that a mere mathematical reckoning of the time involved is not sufficient .31 These rights are deemed violated only when the proceedings are attended by vexatious, capricious, and oppressive delays, or when unjustified postponements of the trial are asked for and secured, or when without cause or justifiable motive, a long time is allowed to elapse without the party having his case tried. 40

The right to speedy disposition of cases is consistent with delays and depends upon the circumstances. What the Constitution prohibits are unreasonable, arbitrary and oppressive delays which render rights nugatory. 4 '

The desideratum of a speedy disposition of cases should not, if at all possible, result in the precipitate loss of a party's right to present evidence and either in a plaintiff's being non-suited or the defendants being pronounced liable under an ex parte judgment. 42

In Corpuz v. Sandiganbayan 43 , the Supreme Court held that in determining whether that right to speedy disposition of cases has been violated, the following factors may be considered and balanced: (1) the length of delay; (2) the reasons for the delay; (3) the assertion or failure to assert such right by the accused; and (4) the prejudice caused by the delay.

Based on the records, it took the Office of the Ombudsman six (6) years, three (3) months and fifteen (15) days from receipt of the anonymous complaint on March 16, 2009, to file the information with this Court on July 1, 2015.

However, said period spent by the Office of the Ombudsman to terminate its investigation and file the informations in Court is not without valid reasons. More importantly, a big part of this period is not attributable to

38 The Ombudsman v. Jurado, G.R. No. 154155, August 6, 2008. 39 De la Peña v. Sandiganbayan, G.R. No. 144542, June 29, 2001. ° Gonzales v. Sandiganbayan, G.R. No. 94750, July 16, 1991

'"Supra, 38. 42 Dansal v. Fernandez, G.R. No. 126814, March 2, 2000. 41 G.R. No. 162214, November 11, 2004.


the Office of the Ombudsman but to causes beyond its control and to the accused themselves.

The fact-finding investigation of the Deputy Ombudsman for Luzon, which lasted from March 16, 2009 to August 28, 2009, or five (5) months and twelve (12) days, should not be attributed to the Deputy Ombudsman for Luzon. The time spent by the Deputy Ombudsman for Luzon in issuing the subpoena duces tecum to the Municipal Accountant of Lopez, Quezon and COA LGS-Cluster of Lucena City, and the receipt of the documents relative to the complaint from April 14, 2009 to August 18, 2009, or four (4) months and four (4) days, should be excluded. The period of compliance of these government agencies is beyond the control of the Deputy Ombudsman for Luzon. Neither the Deputy Ombudsman nor accused Ubana can be faulted for this period.

The period from August 28, 2009 to January 5, 2010 orfour (4) months and eight (8) days, was used by the Deputy Ombudsman to formally charge accused Ubana, assign the case to a GIPO and issue an order to accused Ubana requiring the submission of his counter-affidavit. There is no inordinate delay here because the Deputy Ombudsman acted promptly on the case from formally charging accused Ubana to assigning the case to a GIPO for preliminary investigation.

The period from January 5, 2010 to February 18,2010, or one (1) month and thirteen (13) days, is attributed to accused Ubana. During this period, he contributed to the alleged delay when he asked for several extensions of time to submit his counter-affidavit during the preliminary investigation. He filed three separate motions for extension of time to submit his counter-affidavit on January 5, 2010, January 26, 2010 and February 3, 2010. He only submitted his counter-affidavit after three (3) months and two (2) days from the issuance to him of the subpoena.

From the time he first sought an extension of time to file his counter-affidavit until the issuance of the resolution finding probable cause for these cases, accused Ubana neither objected to any delay in the termination of the preliminary investigation against him nor sought to expedite its resolution.

Accused Ubana cannot claim to be prejudiced by a delay he too is responsible for. Delay of the accused's own making cannot be oppressive to him.44 In Gonzales v. Sandiganbayan,45 the Supreme Court held that if the

See Dela Rosa v. Court ofAppeals, G.R. No. 116945, February 9, 1996. u G.R. No. 94750, July 16, 1991.

/

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RESOLUTION 11 People v. Isaias B. Ubana II, et al., SB-15-CRM-0 135-0 136

long delay in the termination of the preliminary investigation was not solely the prosecution's fault, but was also due to incidents attributable to the accused and his counsel, the right of the accused to speedy disposition of cases is not violated.

The period from February 18, 2010 to September 21, 2011, or one (1) year, seven (7) months and three (3) days, should be attributed to the Deputy Ombudsman for Luzon. During this period, the case was unloaded from GIPO Almojuela to GIPO Allado, Jr., for reasons unstated. At this point, GIPO Allado, Jr. requested the inclusion in the case of accused Revuelta and Nieva, and co-respondents Villasenor, Argante, and Erandio. On September 21, 2011, the Deputy Ombudsman for Luzon issued orders to accused Revuelta and Nieva, and co-respondents Villasenor, Argante, and Erandio requiring the submission of their respective counter-affidavits. The Deputy Ombudsman for Luzon's actions were put on hold pending the submission by accused Nieva and Revuelta of their respective counter-affidavits. During this period, again, accused Ubana neither questioned any delay nor sought the separate resolution of his case.

However, the above period of two (2) years, five (5) months and seventeen (17) days from March 16, 2009 to September 21, 2011, should not be counted in the case of accused Revuelta and Nieva.

Prior to this period, accused Revuelta and Nieva were not subjects of any investigation related to alleged irregularities and ghost deliveries of glass wares and plastic wares to recipient barangays in the Municipality of Lopez, Quezon. In fact, the complaint and preliminary investigation were first initiated against accused Ubana only.

Accused Revuelta and Nieva were only impleaded as co-respondents when the Deputy Ombudsman for Luzon ordered their inclusion in the case on September 12, 2011 upon the recommendation of GIPO Allado Jr. Thereafter, on September 21, 2011, they were required by the Deputy Ombudsman for Luzon to submit their respective counter-affidavits. Thus, there is no proof that they endured any vexatious, capricious, and oppressive delay during this period because they had not undergone any investigative proceeding before September 12, 2011.

In The Ombudsman v. Jurado, 46 the respondent was not included in the original complaint as one of the parties charged with violation of the Tariff and Customs Code. It was only after the report and recommendation of the

46 Supra, 38.

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12 People v. Isaias B. Ubana II, et al., SB-i 5-CRM-0 135-0 136

Fact-Finding Bureau (FFB) of the Ombudsman that he was criminally and administratively charged. The period prior to the FFB's report and recommendation was not included in the determination of whether or not his right to speedy disposition of case was violated. The Supreme Court ruled that there were no vexations, capricious, and oppressive delays because the respondent was not made to undergo any investigative proceeding prior to the report and findings of the FFB.

The period from September 21, 2011 to September 6, 2013, or one (1) year, eleven (11) months and sixteen (16) days, should not be visited upon the Deputy Ombudsman for Luzon and the, accused. The Complainants' late submission of additional documents, i.e., the COA audit observation memorandum and fact-finding report, relative to the- case was beyond the Deputy Ombudsman's control. The verification and further evaluation of these new documents with the COA is inevitable. During this period, the COA was also given an opportunity to conduct another fact-finding investigation which resulted in their 2013 Fact-Finding Report. These incidents are beyond the control of the Deputy Ombudsman for Luzon and the accused.

The period from September 6, 2013 to August 20, 2014, or eleven (11) months and fourteen (14) days, is attributable to the Office of the Ombudsman. The period spent by the Deputy Ombudsman for Luzon in finishing the preliminary investigation and drafting the resolution in these cases is eleven (11) months and twelve (12) days. The Resolution dated August 18, 2014 recommending the filing of a case for Violation of R.A. No. 3019 against accused Ubana, Nieva and Revuelta, and for Falsification against accused Ubana and Nieva, and dismissing the charges against respondents Villasenor, Argante and Erandio for lack of probable cause, was approved by Ombudsman Carpio-Morales after two (2) days. There is no inordinate delay here because the Office of the Ombudsman spent less than a year in terminating the preliminary investigation from the date of the last pleading filed on September 6, 2013. This period is justified because the Office of the Ombudsman needed to ensure that the proper, correct, and strong cases are filed against the accused. In fact, the accused benefited from this lapse of time because the Deputy Ombudsman for Luzon found probable cause only for violation of R.A. 3019 and falsification and dismissed all the other criminal and administrative charges against them.

The period from August 20, 2014 to January 30, 2015, or five (5) months and ten (10) days, is attributed to the accused because of the exercise of their right to procedural due process. During this period, accused Ubana, Re : vuelta and Nieva sought to assail the finding of probable cause against them beore the filing of the informations in Court. The Office of the Ombudsman

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13 People v. Isaias B. Ubana II, et al., SB- 15-CRM-0 135-0136

cannot be faulted for granting them sufficient opportunity to exercise said right.

The period from January 30, 2015 to July 1, 2015, or five (5) months and one (1) day, is attributable to the Office of the Ombudsman. This period is, however, justified because the OSP reviewed the cases again and made sure that only those cases that could stand the rigors of trial would be filed. On the other hand, accused Nieva benefited from this lapse of time because the OSP filed an information for only one (1) count of falsification instead of the seven (7) counts recommended by the Office of the Deputy Ombudsman for Luzon.

Based on the foregoing, the total period of six (6) months and twenty-three (23) days, is attributed to accused Ubana, and the period of five (5) months and ten (10) days, to accused Nieva and Revuelta. This period should be excluded from the time spent by the Office of the Ombudsman to terminate the fact-finding and preliminary investigation, respectively, and for the OSP to file the corresponding informations in this Court.

The total period of two (2) years, four (4) months and twenty -eight (28) days should also be excluded from the computation of the period attributed to the Office of the Ombudsman. As explained above, this period covers those incidents beyond the control of the Office of the Ombudsman and the accused.

Subtracting the periods attributable to the accused and those beyond the control of the Office of the Ombudsman, the total period it took the Office of the Ombudsman to finish its fact-finding investigation and preliminary investigation, and for the OSP to file the corresponding informations is only three (3) years, three (3) months and twenty-six (26) days in the case of accused IJbana, while eleven (11) months and five (5) days in the case of accused Nieva and Revuelta.

In People v. Sandiganbayan,47 the Supreme Court held that any delay in the investigation and prosecution of cases must 'be duly justified and the State must prove that the delay in the prosecution was reasonable, or that the delay was not attributable to it. Under the circumstances and as previously discussed, said period is justified, acceptable, and not capricious, oppressive and vexatious.

' G.R. Nos. 199151-56. July 25, 2016.

P*101/ ~V.


The accused cites the ruling of the Supreme Court in Coscolluela48 to claim that it is not their duty to follow up on the prosecution of their case and that it is the Office of the Ombudsman's responsibility to expedite the same within the bounds of reasonable timeliness.

Contrary to the claim of the accused, the ruling in Coscolluela is inapplicable in this case. In Coscolluela, the accused could not-have sought the speedy resolution of their case because they were completely unaware that the investigation against them was still on-going. They were only informed of the resolution and information against them after the lapse of six (6) years, or when they received a copy of the said information after its filing with the Sandiganbayan. In this regard, the Supreme Court held that they could have reasonably assumed that the proceedings against them have already been terminated.

Accused Revuelta's Motion to Dismiss dated January 29, 2017, which was adopted by accused Ubana and Nieva, was the first instance that they objected to the alleged delay in the prosecution of these cases.

Accused Revuelta filed said motion with this Court on January 30, 2017 only, or one (1) year, six (6) months and twenty-nine (29) days after the filing of the informations in Court, or at least five (5) years, four (4) months and nine (9) days after the issuance by the Deputy Ombudsman for Luzon of the order to submit his counter-affidavit. In the case of accused Ubana and Nieva, they filed their manifestation adopting Revuelta's motion to dismiss, on March 14, 2017, or one (])year, eight (8) months and thirteen (13) days after the informations were filed with this Court, or at least seven (7) years, three (3) months and twenty-eight (28) days after the issuance of the order to submit his counter-affidavit during the preliminary investigation as regards accused Ubana, and five (5) years, four (4) months and nine (9) days as regards accused Nieva.

Accused Ubana, Nieva and Revuelta knew of the investigation against them because they received orders from the Office of the Ombudsman to submit their counter-affidavits and comments to the proceedings. In accused Revuelta's case, he did not participate in any of the proceedings before the Deputy Ombudsman for Luzon despite personal receipt of orders to submit counter-affidavit and comment on the COA reports. All three filed a motion for partial reconsideration to the resolution of the Deputy Ombudsman for Luzon but none invoked their right to the speedy disposition of their case in said motion. When the informations against them were filed in this Court, they

48 G.R.No. 191411, July 15, 2013.

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15 People v. Isaias B. Ubana II, et al., SB-15-CRM-0135-0136

even waited for more than a year before seeking the dismissal of these cases. Accused Ubana, Nieva and Revuelta slept on their right and did not object to this lapse of time despite actual knowledge of the pendency of criminal charges against them. Their failure and negligence to assert their right to the speedy disposition of the cases against them within a reasonable time is an abandonment or waiver of such right. Vigilantibus, sed non dormientibus, jura subveniunt. The laws aid the vigilant, not those who slumber on their rights. 49

The Court also believes that the accused were not unduly and excessively prejudiced by the length of time spent by the Office of the Ombudsman in terminating the preliminary investigation. The accused did not suffer any pre-trial incarceration because he was neither incarcerated nor preventively suspended before and during the fact-finding, preliminary investigation, and trial of this case. 50 In fact, they immediately posted bail on July 7, 2015, or six (6) days after the filing of the informations in this Court.

The accused were also given all the opportunity to present their defenses during the preliminary investigation. In fact, the accused benefited twice from the actions of the Office of the Deputy Ombudsman for Luzon and the OSP; First, the Office of the Deputy Ombudsman for Luzon found probable cause for violation of R.A. 3019 and falsification only and dismissed all the other criminal and administrative charges against them. Second, the OSP, after a judicious evaluation of the case, an information for only one (1) count of falsification was filed instead of the seven (7) counts recommended by the Office of the Deputy Ombudsman for Luzon.

The accused's heavy reliance on the rulings of the Supreme Court in the following cases is misplaced.

In Tatad v. Sandiganbayan,5 ' the inordinate delay of almost three (3) years in the conduct of the preliminary investigation was due to political motivation and blatant departure from procedures prescribed by law in the conduct of preliminary investigation. Also, the long delay in resolving the preliminary investigation was not justified by the records.

In Duterte v. Sandiganbayan, 52 petitioners therein received a memorandum from the Tanodbayan recommending the filing of Information against them after four (4) years from the time they were directed to submit

49 Eduarte v. Court ofAppeals, G.R. No. 121038, July 22, 1999. 50 See Corpuz v. Sandiganbayan, Note 41. 51 G.R. No. L-72335, March 21, 1988. 52 0.R.No. 130191, April 27, 1998.

A b .fr,

RESOLUTION 16 People v. Isaias B. Ubana II, et al., SB-15-CRM-0135-0 136

their comments on a civil complaint and the Special Audit Report of the COA. Petitioners therein were deprived of their right to a preliminary investigation as they were unaware that they were being investigated. They were not served copies of the complaint-affidavits and not given the chance to file their counter-affidavits.

In Lopez v. Sandiganbayan, 53 the preliminary investigation was resolved close to four (4) years from the time all the counter and reply affidavits were submitted to the Office of the Ombudsman. During this interval, no incidents presented themselves for resolution and the delay could only be attributed to the inaction on the part of the investigating officials. Unlike in these cases, the Complainants' late submission of COA audit observation memorandum and fact-finding report during the preliminary investigation resulted to verification and further evaluation of these new evidence with the COA.

In Enriquez v. Office of the Ombudsman, 14 inordinate delay was present because the Ombudsman did not resolve the administrative and criminal cases, against petitioners therein even though the investigation of the said cases had long been terminated with the accused's formal offer of evidence. Due to the Ombudsman's inaction for more than four (4) years, petitioners therein filed a motion to seek the dismissal of the cases against them. The Ombudsman, however, neither resolved the said motion nor informed petitioners why the cases remained unresolved.

InAngchangco v. Ombudsman, 55 the Ombudsman's inaction for six (6) years violated the right of petitioner therein to due process and the speedy disposition of the cases against him despite the filing of several motions for early resolution. The actions of petitioner therein show his vigilance in asserting or prtecting his rights to due process and the speedy disposition of cases. This is not the case with the accused because they failed and neglected to assert their right to the speedy disposition of the cases against them at the earliest possible opportunity.

In Roque v. Office of the Ombudsman, 16 the Ombudsman failed to give any valid reason why it took six (6) years to resolve the complaints against petitioner therein.

G.R. No. 140529, September 6, 2001. G.R. No. 174902-06, February 15, 2008. G.R. No. 122728, February 13, 1997.

56 G.R. No. 129978, May 12, 1999.

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RESOLUTION

17 People v. Isaias B. Ubana II, et al., SB-i 5-CRM-0 135-0136

In Cervantes v. Sandiganbayan, 57 petitioner therein was deprived of his right to speedy disposition of the case because it took the Special Prosecutor six (6) years to file the Information with the Sandiganbayan without any justifiable reason.

In Abardo v. Sandiganbayan, 58 there was delay in the trial of the case because from the arraignment of petitioner therein, there was an unexplained interval or inactivity of close to five (5) years in the Sandiganbayan. A long period was allowed to lapse without the case being tried.

In People v. Anonas, 59 the accused therein was arrested without warrant of arrest and was not afforded a formal investigation. The trial court ordered a re-investigation that was only terminated after four years. Accused, therefore, was prejudiced by the delay, having to be confined for more than four oppressive years for failure of the investigating prosecutors to comply with the law on preliminary investigation.

In People v Sandiganbayan, 6° there was no sufficient justification tendered by the State for the long delay in bringing the charges against the respondents therein before the proper court. The insufficiency of the evidence to establish probable cause and the State's dependence on the ratification of two treaties related to the charge are not reasonable justifications for the delay.

In Commodore Torres v. Sandiganbayan, 6 ' petitioner therein asserted his right to speedy disposition of his cases at the earliest possible time. He claimed that he was prejudiced by the delay in the resolution of the cases against him because he had already retired from government service for fifteen (15) years when he was included in the preliminary investigation. This deprived him of the ability to adequately prepare his case as he no longer had any access to records or contact with any witnesses in support of his defense.

In People v. Sandiganbayan, et al., 62 the delay of fifteen (15) years in the filing of the informations impaired the accused's right to adequately defend himself because the witnesses who could testify on the case may no longer be found or available. The Supreme Court did not accept the reasons invoked by the Ombudsman in justifying delay such as the "thorough review"

G.R. No. 108595, May 18, 1999. G.R. No. 139571-72, March 28, 2001. G.R. No. 156847, January 31, 2007.

60 G.R. No. 188165 & 189063, December 11, 2013 61 G.R. No. 221562-69, October 5, 2016. 62 Supra, 47.


of the Initial Resolution through the different levels of their office before its approval and the transfer of the Ombudsman to their new office at that time.

Unlike in the foregoing cases, the facts of these cases do not evince vexatious, capricious and oppressive delay in the conduct of the preliminary investigation. Due regard must be taken of the facts and circumstances peculiar to each case. The bare allegation that it took the Office of the Ombudsman more than six (6) years to terminate the investigation and file the necessary informations does not suffice. As earlier stated, a mere mathematical reckoning of the time spent for the investigation is not sufficient reason to conclude that arbitrary and inordinate delay attended the prosecution of these cases.

This Court is not unmindful of the duty of the Ombudsman under the Constitution and R.A. No. 6770 to act promptly on complaints brought before it. Such duty, however, should not be mistaken with a hasty resolution of cases at the expense of thoroughness and correctness. 63 Judicial notice should be taken of the fact that the nature of the Office of the Ombudsman encourages individuals who clamor for efficient government service to freely lodge their Complaints against wrongdoings of government personnel. A steady stream of cases reaching the Ombudsman inevitably results. Naturally, disposition of those cases would take some time. 64

In Domondon v. Sandiganbayan, 65 the Supreme Court held that it is the judicious and deliberate determination of all the pending incidents of a case, with a genuine respect for the rights of all parties and the requirements of procedural due process, that should be the primordial consideration in the full resolution of a case, more than the mere convenience of the parties or of the, courts, so that justice and fairness would be served thereby.

In Datukan Guiani v. Sandiganbayan,66 the Supreme Court held:

"The right of an accused to a speedy trial is guaranteed to him by the Constitution but the same shall not be utilized to deprive the State of a reasonable opportunity of fairly indicting criminals. While accused persons do have rights, many of them choose to forget that the aggrieved also have the same rights. It secures rights to a defendant but it does not preclude the rights of public

63 Supra, 42. Mendoza-Ong v. Sandiganbayan and People, G.R. No. 146368-69, October 23, 2003.

65 G.R. No. 166606, November 29, 2005. 66 G.R. No. 146897-917, August 6, 2002.


justice. A party's individual rights should not work against and preclude the people's equally important right to public justice."

The interests of the private complainants must be equally considered in thern prosecution of criminal cases. Justice should not be dispensed to the accused alone. It must be rendered even-handedly to both the accused, on one hand, and the State and offended party, on the other. In these cases, the complainants sought the immediate resolution of the case before the Deputy Ombudsman for Luzon on September 6, 2013.

- The protection under the right to a speedy disposition of a case should not operate to deprive the government of its inherent prerogative in prosecuting criminal cases or in generally seeing to it that all who approach the bar of justice be afforded a fair opportunity to present their side. 67

WHEREFORE, the Motion to Dismiss of accused Leonardo V. Revuelta, which was adopted by accused Isaias B. Ubana II and Bernadette Eudela Nieva, is DENIED.

SO ORDERED.

KARL MIRANDA Associate Justice

WE CONCUR:

RODOLI ?ERRADA Associate Jstice

I A4.J!

MICHAEL1+ui MUSNGI Associ

67 Suprci, 42.

R. FERNANDEZ Justice

LORAssoc* J

uj t -- --

DISSENTING OPINION

MUSNG1 J.: .: .

• Respectfully, I dissent. .

Section 16,. Article HI of the . 1987 Philippine Constitution provides, thus: . . .

"Section 16 All personS. shall-,have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bOdies." .

The Supreme Court discussed the right of the accused to speedy disposition. of cases: and the correlative obligation, of the Court to protect such right in the. case of Corpuz vs. SandigaAbäyan, 1 to wit

'The right of the accused to a speedy trial and to a speedy disposition of the case against him was designed to prevent the oppression of the citizen by holding. criminal prosecution suspended over him for an indefinite time, and to prevent delays in. the adminiStration of justice by mandating the courts to proceed with reasonable dispatch in the trial .of criminal cases. Such right to a speedy trial and a speedy disposition of a case is. violated only when . the proceeding is attended by vexatious, capricious and oppressive delays. The inquiry as to whether or not an accused has been denied such right is riot susceptiblé by precise qualification The concept of a speedy disposition is a relative term and must necessarily be a flexible concept.' . . . . . . . .

While, justice is administered with dispatch, the essential ingredient is orderly, expeditiOus and not mere .seed. It cannot , be definitely said how long . is too long 'in a system where justice is supposed to be swift, but deliberate. It is consistent with delays. , and depends upon circumstances. It secures rights to the accused, but it does. not preclude, the rights of public justice. Also, it must be borne 'in mind that the rights given to th&accused by the Constitutiori and the Rules of Court are shields, hot weapons; hence, courts are to give meaning to that intent..'

A balancing test of applying societal interests and the rights of the accused necessarily compels the court to approach speedy trial cases on an ad hoc basis.' . . .

Li n determining whether the 'accused has been deprived of his right to a speedy disposition of the case and to a speedy trial, four factors must be considered: (a) length of delay: (b) the reason for the delay; (C) the defendant's assertion of his right: and (d) prejudice to the defendant Prejudice shoUld be assessed in the light of the interest of the defendant that the speedy trial was designed to protect, namely: to prevent oppressive pre-trial. incarceration; to minimize anxiety and concerns of the accused to

I G.R. No. 162214, 11 November2004. .

Criminal Case No. SB -15-CRM-0135 16 ,0136 People vs Ubana II, et al. DISSENTING OPINION Page 2of5 X ------------------ ----------- x

trial; and to. limit the possibility that his defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately, to prepare his case skews the fairness of the entire system. There is also prejudice if the defense witnesses. are unable to recall accurately the events of the distant past. Even if the accused is not imprisoned prior to trial, he is still disadvantaged, by restraints on his liberty and by living under a cloud I of anxiety,

•

suspicion and often, hostility: His financial resources may, be drained, his'association is curtailed, and he is subjected' to public obloquy.'

'Delay is a two-edge sword. It is the government that bears • the burden of proving its case beyond reasonable doubt. The

passage of time may make it difficult or impossible for the government to carry its burden. The Constitution and the Rules do not require impossibilities or extraordinary efforts, diligence or exertion from courts or the prosecutor, nor contemplate that such right Shall deprive the State of a reasonable opportunity of fairly prosecuting, criminals. As held in Williams v. United States, for the

• . government to sustain its right to try the accused despite adelay, it must show two things: . (a) that the accused suffered, no serious prejudice beyond that which ensued from the ordinary and inevitable delay; and (b) that there was no more delay than is reasonably

• attributable to the ordinary, processes of justice.' .

'Closely related to the length of delay is the reason or justification of the State for such delay.. 'Different weights should be

- assigned to different reasons. or justifications invoked by the State.' For instance, a deliberate attempt to delay the trial in order to hamper or prejudice the defense should be weighted heavily ,against the. State. Also it is improper for the prosecutOr to intentionally delay to gain some tactical advantage over the defendant or to -harass or prejudice him. On the other hand, the heavy case load, of . the prosecution or a missing witness should bel weighted less' heavily against the State. Corollarily, Section 4, Rule 119 of the, Rules of Criminal Procedure enumerates the. factors fOr granting a continuance."2 (Emphasis supplied and citations omitted)

After a careful perusal of the instant motion and the records of this case, It can be readily seen that the right tothà Speedy disposition of cases of accused Leonardo V. Revuelta,' Isaias , B. Ubana. II, and Bernadette Eudela Nieva ("Revuelta, et al.") haè been violatèd

First, it IS undeniable from the records of the case that it took the' Office of the Ombudsman ("OMB") six (6) years, three (3) months, and fifteen . (15) days to conclude its fact-finding and preliminéry. investigation, and to file the Information before this Court on 01 July. 2015.

2 'G.R. No. 1-37007, '20 July 1987 ' . .

Criminal Case No. SB -15-RM0135 to 0136 :

People vs. Ubana II, et al. DISSENTING OPINION.. . .•. Page 3óf5 . . . .

-. - - ---- ------ -x

Second, the explanation propounded by the prosecution is unreasonable. All circumstances surrounding the attendant delay in the : fact-finding and preliminary investigation conducted against accused Revuelta, et al. are attributable to the OMB. The prosecution cannot wash its hands clean and just.. indiscriminately point fingers to other government agencies as the cause Of this delay. . *

In the case of Cosco!Iuela vs. Sandiganbayan, 3 the Supreme, Court emphasized that it is the duty of the Ombudsman to act with reasonable dispatch on the cases entrusted to it, thus

"Verily, the Office of the Ombudsman was created under the mantle of the Constitution, mandated to be. the 'protector of the people' and as such, required to 'act promptly on complaints filed in any, form or manner against officers and employees Of the Government, or of any subdivision, agency or instrumentality thereof, in order to promote efficient service This greatresponsibility cannot be simply brushed aside by ineptitude. Pre- isely, the Office of the Ombudsman has the inherent duty not only to carefully ,go through the partiOulars of case but also to resolve the same within the , proper length of time. its dutifUlpe.rformance should not only b gauged by the quality of the assessment but also by the reasonable promptness Of its dispensation.'

xxx

'Lest it be misunderstood, the right to speedy disposition of cases s not merely hinged towards the objective of spurring dispatch in the administration of justice but also to prevent the oppression of thecitizen by holding a criminal prosecution suspended over him for . an indefinite time. Akin to the right.-to Speedy trial, its "salutary objective' is to assure that an innocent person may be free from the anxiety and expense of litigation or, if otherWise; of having his guilt determined within the shorteét possible time compatible with the presentation and consideration of whatsoever legitimate defense he may . interpOse. This looming., unrest as well as the tactical disadvantages carried by the passage of time should be weighed against the...State'änd in favor of the individual."

The OMB is and should not be bound by the action or inaction of other government agencies in promptly disposing of cases before it. It 'must be. vigilant in complying with its 'mandate as protector of the people, including the accused. . . .

3 G.R;No. 191411, July 15,. 2013.

Criminal Case No. SB -15-CRM-0135 to 0136 People vs. Ubana II, et al. DISSENTING OPINION Page 4 of 5 I

x--- --------- -- ----- -- -- -- - ---------- -

The OMB should not have just .sat idly by while waiting for other • government agencies to comply with the subpoena duces tecum it

issued and for the Commission On Audit ("CON') to complete another fact-finding investigation. The COA has a separate. mandate from the OMB. The latter should have completed its fact-finding and preliminary investigation with dispatch in accordance with its constitutional mandate. Hence, it is submitted that the period of two (2) years, four (4) months, and twenty-eight (28) days within which the COA conducted another 'fact-finding investigation should be included in',the compütàtion of delay attributable to the OMB.

The prosecution also failed to expound, on the reassignments of these cases to different Graft Investigation and Prosecution Officers

• . "("GIPO").' The case was initially assigned by the Deputy Ombudsman for Luzon to GIPO J.S. Ong on 09 November 2009 for preliminary investigation. On 17 December 2009, the case was unloaded to GIPO Albert Almojuela. Thereafter, or on 18 April 2011, the case was finally. reassigned 'to' GIPO Expedito Allado. In all, these reassignments. • ' consumed a period of more than One (1) year for reasons unstated by the prosecution. .

Lastly, although accused . Revuelta, et al., were accorded procedural due process, it cannot be gainsaid that they have been prejudiced by the delay, in the disposition of their cases. The vexatious, capricious, and oppressive delay attendant in these. cases has been pernicious to the preparation of the accused's defense.

The most serious interest of the accused, which is 'protected by the right to speedy disposition of cases is the limitation on the possibility of impairing his/her defense. A pending and ,prolonged disposition of a case against the' accused causes anxiety, hostility, additionalexpenses, and restriction on his person and well-being. The passage of time in the conduct of the investigations weakens the defense of the accused.. In this case, inordinate delay has., already

• caused tactical disadvantage in the preparation of accused Revueltá, .et al.'s defense. Hence; it was erroneous for the prOsecution to state that the perceived delay in the fact-finding and preliminary investigation proceedings before the- OMB did not prejudice the accused

*

Criminal Case No. SB 45-CRM-0135 to 0136 People vs. Ubana ii, etal.

• DISSENTING OPINION • Page5of5 (.

--------------------- -

The case of corpuz vs. Sandiganhayan,4 is instructive, thus:

"In determining whether the accused has been deprived of his right to a speedy disposition of the case and to a speedy trial, four factors must be considered: (a) length of delay; (b) the reason for the delay; (c) the defendant's assertion of his right; and (d) prejudice to the defendant Prejudice should be assessed in the light of the interest of the defendant that the speedy trial was designed to protect, namely: to prevent oppressive pre-trial Incarceration; to minimize anxiety and 'concerns of the accused to trial; and to limit the possibility that his defense will . be impaired. Of these, the most serious is the last, because the inability of a dófendant adequately to prepare his case skews the fairness of the entire system. There is also prejudice If the defense witnesses are unable to recall accurately the events of the distant past. Even if the accused Is not imprisoned Prior to trial, he is still

• disadvantaged by restraints on

his liberty and by living under a cloud of anxiety, suspicion and • often, hostility. His financial resources may be drained, his

association is curtailed, and he is subjected to public obloquy." (emphasis supplied)

• ACCORDINGLY, I vote to GRANT the Motion to Dismiss dated 29 January 2017 filed by acóused Leonardo V. Revuelta and adopted by accused Isaias B. • Ubana II and Bernadette Eudela Neva in their Manifestation dated 14 March 2017.

MICHAEL F • • L MUSNGI •. Associate Ju ice

4 Supra note 1.

SANDIGANBAYANsb.judiciary.gov.ph/RESOLUTIONS/2017/I_Crim_SB-15-CRM-0135_Peo… · SANDIGANBAYAN Quezon City SPECIAL SIXTH DIVISION PEOPLE OF THE PHILIPPINES, ... On November 23, 2009,

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