PROVISIONAL REMEDIES IN CRIMINAL CASES
Rule 127, Rules of Court
SECTION 1. Availability of provisional remedies. – The provisional remedies in civil actions, insofar as they are
applicable, may be availed of in connection with the civil action deemed
instituted with the criminal action.
SEC. 2. Attachment. – When the civil action is properly instituted in the criminal action as
provided in Rule 111, the offended party may have the property of the accused
attached as security for the satisfaction of any judgment that may be recovered
from the accused in the following cases:
(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.
What is a provisional remedy?
Provisional remedy is one provided
for present need or for the occasion that is one adopted to meet a particular
exigency;
What are the provisional remedies under the Rules of Court?
The following are the provisional
remedies under the Rules of Court:
1. Attachment (Rule 57)
2. Injunction
(Rule 58)
3. Receivership
(Rule 59)
4. Delivery
of personal property or Replevin(Rule 60) and
5. Support
Pendente Lite (Rule 61)
What is the purpose of provisional remedies?
Provisional remedies are
applied pending litigation, to secure the judgment or preserve the
status quo
If provisional remedies
are applied to after judgment, it is in order to preserve or dispose of
the subject matter.
Although civil action is suspended
until final judgment in the criminal case, the court is not deprived of its
authority to issue preliminary and auxiliary writs which do not go into the
merits of the case. Preliminary writs
and auxiliary writs referred to are those such as the ff:
1. Preliminary injunction
2. Attachment
3. Appointment of receiver
4. Fixing amounts of bonds
Let’s go
first to civil cases: Suppose you borrowed money from me and you refused to
pay. So, I’ll file a case against you. Can I immediately run against your
properties?
Not yet because the case is still pending.
But
suppose you start selling your properties everyday. By the time I win the case,
you may be as poor as a rat. What must I do?
Under Rule 57, I can have the property your property attached as security
for the satisfaction of any judgment that may be recovered. I can ask the court
to issue preliminary attachment. That is provisional remedy. Some of your
properties will be attached to prevent you from disposing. It is now my
security.
Is that
applicable in criminal cases?
Of course. Just remember the rule, when you file a criminal case, there
is a civil action which is deemed instituted to recover civil liability. The
victim is interested for the civil liability and so, he has to wait for the
criminal case to end. But now even if the case is going on, the accused is
hiding his property one by one. He is trying to dispose. So, I will ask for the
remedy of preliminary attachment in criminal cases.
What is the remedy of attachment?
Attachment is a remedy afforded to the offended party to have the property of the
accused attached as security for the satisfaction of any judgment that may be
recovered from the accused.
When can you file an attachment?
This may be filed at the commencement of a criminal
action or at any time before entry of judgment as security for
the satisfaction of any judgment that may be recovered in the aforementioned
cases.
Can the public prosecutor apply for
preliminary attachment?
Yes. The public prosecutor has the
authority to apply for preliminary attachment as may be necessary to protect
the interest of the offended party.
When are
the provisional remedies not available?
1. Offended party has waived the civil claim
2. Offended party has reserved the civil claim
3. Offended party has already instituted a separate civil action
4. Criminal action carries with it no civil liability
In civil
cases, the defendant can ask for damages in case of an improper attachment made
by the plaintiff, that is why there is an attachment bond to answer for
damages. In criminal cases, can the accused claim for damages for illegal or
improper attachment under Rule 127?
YES, the same in civil cases. And that is confirmed in Rule 119, Section
11 [b]:
SEC. 11. Order of trial. – The
trial shall proceed in the following order:
x xx
(b) The accused may present evidence to prove his defense and damages, if
any, arising, from the issuance of a provisional remedy in the case.
May
injunction be issued to restrain criminal prosecution?
General
Rule:
No. Criminal
prosecution may not be restrained or stayed by injunction.
Exceptions:
1.
To afford adequate protection to the
constitutional rights of the accused;
2.
Then necessary for the orderly
administration of justice or to avoid oppression or multiplicity of actions;
3.
When there is a pre-judicial question
which is sub judice;
4.
When the acts of the officer are without
or in excess of authority;
5.
Where the prosecution is under an
invalid law, ordinance or regulation;
6.
When double jeopardy is clearly
apparent;
7.
Where the court has no jurisdiction over
the offense;
8.
Where it is a case of persecution rather
than prosecution;
9.
Where the charges are manifestly false
and motivated by the lust for vengeance;
10.
When there is clearly no prima facie case against the accused and a motion to
quash on that ground has been denied; and
11.
To prevent the threatened unlawful arrest of petitioners (Brocka v. Enrile, 192 SCRA 183 (1990).
● Where the civil action has actually been instituted, or proceeded independently of the criminal action, these provisional remedies cannot be availed of in the criminal action but may be applied for in the separate civil action (Regalado).
● If the civil action is suspended on account of filing of the criminal action: The court with which the civil case is filed is not thereby deprived of its authority to issue auxiliary writs that do not go into the merits of the case [Ramcar Inc vs. de Leon].
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