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Title XII - Crimpro - PROVISIONAL REMEDIES - Coggle Diagram
Title XII - Crimpro - PROVISIONAL REMEDIES
1. Nature (127.1)
- The provisional remedies available in civil actions are also available in connection with the civil action deemed instituted with the criminal action.
2. Kinds of Provisional Remedies (Riano 2019)
- because provisional remedies is a general term, remedies such as preliminary attachment/injunction, receivership, replevin, support pendente lite are applicable.
2a. RA 9262
- Allows the issuance of protection orders under Sec. 15.
Definition of Protection Orders (Tua v. Judge Mangrobang)
- Temporary Protection Orders (TPOs) refers to the protection order issued by the court on the date of filing of the application after ex parte determination that such order should be issued.
A court may grant in a TPO any, some or all of the reliefs mentioned in this Act and shall be effective for thirty (30) days.
The court shall schedule a hearing on the issuance of a [Permanent Protection Order] PPO prior to or on the date of the expiration of the TPO.
The court shall order the immediate personal service of the TPO on the respondent by the court sheriff who may obtain the assistance of law enforcement agents for the service. The TPO shall include notice of the date of the hearing on the merits of the issuance of a PPO.
Scope of Protection Orders
- The scope of reliefs in protection orders is broadened to ensure that the victim or offended party is afforded all the remedies necessary to curtail access by a perpetrator to the victim. This serves to safeguard the victim from greater risk of violence; to accord the victim and any designated family or household member safety in the family residence, and to prevent the perpetrator from committing acts that jeopardize the employment and support of the victim. It also enables the court to award temporary custody of minor children to protect the children from violence, to prevent their abduction by the perpetrator and to ensure their financial support.
Nature of Protection Orders
- A protection order is an order issued to prevent further acts of violence against women and their children, their family or household members, and to grant other necessary reliefs. Its purpose is to safeguard the offended parties from further harm, minimize any disruption in their daily life and facilitate the opportunity and ability to regain control of their life.
When Preliminary Attachment Available (127.2)
- Available under any of the following circumstances:
(a) When the accused is about to abscond from the Philippines;
(b) When the criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public officer, officer of a corporation, attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty;
(c) When the accused has concealed, removed, or disposed of his property, or is about to do so; and
(d) When the accused resides outside the Philippines. (2a)
1A. Replevin under Rule 60 (Chua v. CA)
- Replevin / Interpleader may be availed of depending on the existence of circumstances:
When Available
If personal property is seized under a search warrant and
there is reason to believe that the seizure will not anymore be followed by the filing of a criminal
and there are conflicting claims over the seized property, the proper remedy is the filing of an action for replevin, or an interpleader filed by the Government in the proper court, not necessarily the same one which issued the search warrant;
When Unavailable
- Generally if thing is lawfully seized and under custodia legis, replevin unavialable.
Where there is still a probability that the seizure will be followed by the filing of a criminal action, e.g.,
if the case was "dismissed provisionally, without prejudice to its reopening once the issue of ownership is resolved in favor of complainant" (emphasis supplied),
or the criminal information has actually been commenced, or filed, and actually prosecuted, and there are conflicting claims over the property seized, the proper remedy is to question the validity of the search warrant in the same court which issued it and not in any other branch of the said court.
Rule on Availability of Replevin (Superlines Transportation Co. Inc. v. Philippine National Construction Co. Inc)
-
GR
- Property held as evidence in a criminal case cannot be replevied. But the rule applies only where the property is lawfully held, that is, seized in accordance with the rule against warrantless searches and seizures or its accepted exceptions. Property subject of litigation is not by that fact alone in custodia legis.
A thing is in custodia legis when it is shown that it has been and is subjected to the official custody of a judicial executive officer in pursuance of his execution of a legal writ." - Only when property is lawfully taken by virtue of legal process is it considered in the custody of the law, and not otherwise. (
XCPN
- When the property is now lawfully held such as when it is seized without a warrant.
When Available
- Only if:
there is a civil liability corresponding to the criminal action
The civil action must be one arising from the offense charged AND instituted in the said criminal action.
Therefore, if civil action has been waived, reserved or instituted separately, not provisional remedy in the criminal action.
P. Petition for relief from Judgment
1. Annulment of Judgment
R. Rules on DNA Evidence
S. Rule of Procedure for Environmental cases ((A.M. No. 09-6-8-SC)
1. Who may file
- Any real party in interest, including the government and juridical entities authorized by law, may file a civil action involving the enforcement or violation of any environmental law. [Sec. 4, Rule 2]
2. Institution of criminal and civil action
- Same rules with crimpro (Rule 10)
3. Arrest without warrant, when valid
Same rules with Crimpro (Rule 11)
4. Strategic lawsuit against public participation
- a legal action filed to harass, vex, exert undue pressure or stifle any legal recourse that any person, institution or the government has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of environmental rights. [Sec. 1, Rule 6]
Applicability of SLAPP Provisions
- Apply not only to suits that have been filed in the form of a countersuit, but also to suits that are about to be filed with the intention of discouraging the aggrieved person from bringing a valid environmental complaint before the court. [Annotation to the Rules of Procedure for Environmental Cases, Supreme Court Sub-Committee]
SLAPP as a Defense
- In a SLAPP filed against a person involved in the enforcement of environmental laws, protection of environment, or assertion of environmental rights, the defendant may:
a. File an answer interposing as a defense that the case is a SLAPP and shall be supported by documents, affidavits, papers, and other evidence, and
b. By way of counterclaim, pray for damages, attorney’s fees, and costs of suit.
2 more items...
Nature
- Involving enforcement or violations of environmental and other related laws, rules and regulations.
Form of Filing
- verified complaint shall contain:
a. The names of the parties,
b. Their addresses,
c. The cause of action,
d. The reliefs prayed for,
e. Shall state that it is an environmental case and the law involved, and
f. Include a certification against forum shopping
Availability Post-Conviction (Sec. 6) - SECTION 6. Post-conviction DNA Testing
. — Post-conviction DNA testing may be available, without need of prior court order, to the prosecution or any person convicted by final and executory judgment provided that
(a) a biological sample exists,
(b) such sample is relevant to the case, and
(c) the testing would probably result in the reversal or modification of the judgment of conviction.
Inapplicability to Criminal Cases (People v. Bitanga)
- Annulment of judgment cannot be availed of in criminal cases,
Section 1, Rule 47 of the Rules of Court, limits the scope to the following: - Annulment by the Court of Appeals of judgments or final orders and resolutions in civil actions of Regional Trial Courts for which the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault of the petitioner
124.18 of the Rules of CrimPro excludes Rule 47 from the enumeraton of the Civil Procedure rules which have suppletory application. Thus, cannot be invoked in criminal cases.
Nature (Rule 38/Hilario v. People)
- Remedy provided by law to any person against whom a decision or order is entered into through fraud, accident, mistake or excusable negligence.
It is of equitable character, allowed only in exceptional cases as when there is no other available or adequate remedy.
When Unavailable
- When a party has another adequate remedy available to him, which was either a motion for new trial or appeal from adverse decisions of the lower court, and he was not prevented by fraud, accident, mistake or excusable negligence from filing such motion or taking the appeal he cannot avail himself of the relief provided in Rule 38
Ex. In the Basco v. CA case, appeal was filed within reglementary period but was not considered because they failed to indicate time and place of hearing. SC held that because of nature of penalty i.e.,r reclusion perpetua, relief from judgment was to be entertained.