Soriano v Marcelo

Soriano v Marcelo

GR No. 163178, 30 Jan 2009

Austria-Martinez, J:

FACTS:

        Hilario Soriano filed a complaint against Bank Examiner Mely Palad of BSP for falsification of public document and use of such.  Asst City Prosecutor Celedonio Balasbas issued a Resolution dated August 27, 2001 recommending that Palad be charged in court for falsification of public document.  Upon Motion for Re-open by Palad, and upon recommendation of First Asst. City Prosecutor Leoncia Dimagiba, Manila City Prosecutor Ramon Garcia reopened the case. 

        On 5 Aug 2002, Garcia forwarded the case to DOJ Chief State Prosecutor Jovencito Zuno for the complainant has filed separate complaints against him and Balasbas.  This is to avoid bias.

        On 5 Sept 2002, Soriano filed with the Ombudsman Simeon Marcelo an information against Garcia for violation of Art. 208 and Sec 3(e) of RA 3019 alleging as follows:

1. Garcia unilaterally forward the complaint against Palad more than 14 months after filing;
2. Garcia has in effect managed to evade his statutory duty to act on the resolution of my criminal complaint by not allowing Manila prosecutors to resolve said complaint; a form of retaliation for Soriano’s filing against him.

Ombudsman Marcelo:

        Dismissed on 3 Oct 2002 for lack of probable cause. Accordingly, the elements of Art 208 are [POTA]:

1. Offender is a public offender or officer of the law who has a duty to cause the prosecution of, or to prosecute, offenses;
2. There is dereliction (knowing that a crime is about to be committed he tolerates its commission) of the duties of his office;
3. Offender acts with malice and deliberate intent to favor the violator of the law.

        Also, the crime committed by the law-violator must be proved first. If the guilt of the law-violator is not proved, the person charged with dereliction of duty under this article is not liable.  The ling of the instant suit is still premature considering the observation that the questioned controversy against Palad is still pending.

        The referral of the complaint by Garcia is not a malicious constitutive of dereliction since the same is to avoid doubts.

        The violation of Sec 3(e) of RA 3019 requires that the undue injury sustained as an element thereof must be actual and certain.

Petitioner:

        Filed a motion for reconsideration but was denied on 14 July 2003.

        Granting that his complaint against Garcia is premature for the case of Palad is still pending with Prosecutor Liberato Cabaron, his other complaint for violation of Sec 3(e) of RA 3019 should have been sustained for Garcia committed dereliction f duty in referring the case to DOJ.  Such referral was unilateral for parties did not sought for relief; that Garcia should have awaited Cabaron's recommendation for the latter was already in the process of conducting a preliminary investigation; that Garcia cause delay in the investigation by referring the case.

SolGen:

        Marcelo’s plenary power to conduct a preliminary investigation cannot be interfered with by the Court, especially when the validity of its finding of lack of probable cause is discernible from the records of the case.

ISSUE:

        W/N Ombudsman Marcelo committed grave abuse of discretion in dismissing the complaint against Garcia.

HELD:

        No.  Sections 12 and 13, Article XI of the 1987 Constitution and R.A. No. 6770 (The Ombudsman Act of 1989) endow the respondent with plenary powers to investigate and prosecute public officers or employees for acts or omissions which appear to be illegal, unjust, improper or inefficient. Its power is virtually free from legislative, executive or judicial intervention, and insulated from outside pressure and improper influence. Thus, the Court generally adheres to a policy of non-interference in the investigatory and prosecutorial powers of the respondent.

        However, where the findings are tainted with GADALEJ, the aggrieved party may file a petition for certiorari under Rule 65 of RoC.  The ombudsman must have exercised its power arbitrarily or despotically by reason of passion or personal hostility; and such exercise was so patent and gross as to amount to an evasion of positive duty, or to a virtual refusal to perform it or to act in contemplation of law.

        Elements of crime penalized under Sec. 3(e) RA No. 3019 [PRICE]:

1. That the accused are public officers or private persons charged in conspiracy with them;
2. That said public officers committed the prohibited acts during the performance of their official duties or in relation to their public positions;
3. They caused undue injury to any party, whether the Government or a private party;
4. Such injury was caused by giving unwarranted benefits, advantage or preference to such parties;
5. The public officers acted with manifest partiality, evident bad faith or gross inexcusable negligence.

        The Court ruled that Sec. 3(e) cannot be presumed even after a wrong or a violation of a right has been established. Its existence must be proven as one of the elements of the crime. In fact, the causing of undue injury, or the giving of any unwarranted benefits, advantage or preference through manifest partiality, evident bad faith or gross inexcusable negligence constitutes the very act punished under this section. Thus, it is required that the undue injury be specified quantified and proven to the point of moral certainty.

        Undue injury is an actual damage.  It is more than necessary, not proper, or illegal"; and injury as "any wrong or damage done to another, either in his person, rights, reputation or property; invasion of any legally protected interest of another

        Art 2199 of the Civil Code provides the definite of actual or compensatory damages. Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages.

        It naturally follows that the rule that should likewise be applied in determining undue injury is that in determining actual damages, the court cannot rely on mere assertions, speculations, conjectures or guesswork, but must depend on competent proof and on the best evidence obtainable regarding specific facts that could afford some basis for measuring compensatory or actual damage.

        In the instant case, the alleged injury suffered is from Garcia’s act of referring the case resulting to delay.  Petitioner failed to adduce evidence of the actual loss or damage he suffered. There must be some reasonable basis by which the court can measure it.  Also, the 4^th element is not alleged in the complaint.

       Nonetheless, the Court finds the reason given by Garcia in referring the case not completely acceptable: the mere filing of an admin case is not a ground for disqualification or inhibition.  However, in the absence of evidence that Garcia was motivated by malice or ill will, his erroneous referral of the case does not put him in violation of Sec. 3 (e) of R.A. No. 3019. Hence, respondent's dismissal of the complaint against Garcia did not constitute grave abuse of discretion.