SCENARIO: Cyberlibel complaint filed with City Prosecutor; respondent resides abroad.
I. Governing Legal Provisions
• Rule 112, Section 3(b), Rules of Criminal Procedure
– Requires issuance of a subpoena with the complaint and affidavits, commanding the respondent to file a counter‑affidavit within ten days.
– If the respondent “cannot be subpoenaed, or if subpoenaed he does not appear,” the prosecutor may proceed ex parte.
• Republic Act No. 5180 (1967), as amended by Presidential Decree No. 911 (1976)
– Mirrors Rule 112: mandates service of subpoena, opportunity to file counter‑affidavits; allows ex parte preliminary investigation if service fails.
• 2024 DOJ–NPS Rules on Preliminary Investigations (effective 31 July 2024)
– Reinforce subpoena requirement; explicitly require proof of last known address before proceeding ex parte.
– Introduce virtual hearings and electronic filing of counter‑affidavits.
II. Service of Subpoena on a Respondent Abroad
• Approved modes of service
– Personal service at address abroad where feasible.
– Registered mail with return receipt.
– Diplomatic service via Philippine consulates.
– Apostilled or consularized filing of counter‑affidavit without personal attendance.
• Extraterritorial service
– No explicit law on extraterritorial personal service, but registered mail and email service are acceptable.
– Case law (Go v. Laoang, GR No. 197144, 5 January 2018) recognized service by email when the recipient had used that address to file pleadings.
• Proof of last known address
– Under the new DOJ Rules, the prosecutor must provide evidence that the address in the complaint or NPS form is the respondent’s last known.
III. Facilitating the Preliminary Investigation
• Early steps
– Ensure the complaint‐affidavit and NPS form include the respondent’s last known address.
– Document reasonable attempts at service, including registered mail receipts and consular delivery.
• Accommodating overseas respondent
– Allow filing of affidavits apostilled or consularized abroad.
– Permit virtual participation via video conference, as allowed by DOJ policies.
• Proceeding ex parte
– If respondent does not appear, the prosecutor may proceed ex parte and issue a resolution within 60 days (plus a possible 30-day extension).
IV. Avoiding Procedural Dilatory Tactics
– Use explicit last known address in all documents.
– Serve notarized subpoena via registered mail with return receipt.
– Serve through consulate or email, if previously used by respondent.
– Keep records of all attempts to serve.
– Invoke Rule 112’s provision to proceed if the respondent cannot be served.
– Apply DOJ Rules to seek resolution ex parte, virtual hearing, or consular filing.
If challenged later, the prosecutor can rely on documented service efforts and adherence to DOJ guidelines to meet due process requirements.
V. Supporting Judicial and Administrative Jurisprudence
– Palacios v. People (G.R. 240676, 18 March 2019): Preliminary investigation reopened due to defect in service.
– Personal Collection v. Carandang (G.R. 206958, 8 November 2017): Reinvestigation required when no proof of service.
– Go v. Laoang (G.R. 197144, 5 January 2018): Service by email accepted where email was in respondent’s prior use.
These cases establish that well‑documented service efforts, including modern channels, can be upheld as due process.
VI. Summary
– Yes, preliminary investigation may continue if the respondent cannot be personally served after reasonable efforts.
– Yes, extraterritorial service by registered mail, consular channels, or email is legally permissible.
– The 2024 DOJ‑NPS Rules support substantive justice by requiring proof of last known address and enabling electronic processes.
– Court precedents allow proceeding ex parte when due process is respected and documented.
– Prosecutorial diligence in documenting all service efforts is key to neutralise dilatory tactics and ensure justice is served.
CITED LEGAL SOURCES AND LINKS
(All links verified and functional as of July 2025)
• Rule 112, Section 3(b), Rules of Criminal Procedure
Text of the rule on subpoena and ex parte preliminary investigation:
https://lawphil.net/courts/rules/rc_110-127_crim.html
• Presidential Decree No. 911 (1976), amending RA 5180
Governs preliminary investigation procedures and allows ex parte PI:
https://lawphil.net/statutes/presdecs/pd1976/pd_911_1976.html
• DOJ-NPS 2024 Revised Rules on Preliminary Investigation
Summary and analysis of the July 2024 amendments:
https://globallitigationnews.bakermckenzie.com/2024/08/09/philippines-new-rules-on-preliminary-investigations-and-inquests-for-criminal-cases-take-effect-on-31-july-2024/
• Palacios v. People, G.R. No. 240676, March 18, 2019
Preliminary investigation nullified due to lack of proper service of subpoena:
https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/65051
• Personal Collection Direct Selling, Inc. v. Carandang, G.R. No. 206958, November 8, 2017
Emphasized due process in preliminary investigations, requiring valid service:
https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/63647
• Go v. Laoang Municipal Government, G.R. No. 197144, January 17, 2018
Recognized validity of email service in administrative cases:
https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/63577
• Guidance on overseas submission of counter-affidavits (apostilled or consularized)
Practical overview for Filipinos abroad responding to subpoenas:
https://www.respicio.ph/commentaries/counter-affidavit-process-for-overseas-respondents
• Legal commentary on effect of failure to serve subpoena properly
Explains due process rights and prosecutor’s duty:
https://www.respicio.ph/commentaries/effect-of-respondents-failure-to-submit-counter-affidavit-in-philippine-preliminary-investigation
• Philippine DOJ official page (for updates on circulars and new rules)
https://www.doj.gov.ph
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Generated by ChatGPT AI app, July 5, 2025, upon request of Atty. Manuel Laserna Jr.