Aluzan vs. Fortunado

A person’s voluntary surrender for protective custody may be treated as an implied waiver of Article 125 of the Revised Penal Code, but the waiver does not permit indefinite detention; the case must still be forwarded for preliminary investigation within the 15-day period under Section 7, Rule 112, and failure to do so without bad faith constitutes Simple Neglect of Duty.

Petitioners Syrus J. Aluzan, Jose Henry L. Arellano, and Ferdinand M. Lavin are officers of the National Bureau of Investigation; Lavin was former Chief of the NBI Bacolod City and later Regional Director of NBI Western Mindanao, while Aluzan and Arellano are Special Investigator III and II, respectively, with NBI Bacolod City. Respondent Eddie Fortunado was investigated in connection with the murder of Judge Henry Arles. The administrative case arose from Fortunado’s complaint before the Ombudsman for Arbitrary Detention under Article 124 of the Revised Penal Code, violation of Republic Act No. 9745 (Anti-Torture Act), and Grave Misconduct. The legal backdrop includes Article 125 of the Revised Penal Code on delay in delivering detained persons to judicial authorities, Republic Act No. 7438 on custodial rights, and Section 7, Rule 112 of the Rules of Court on preliminary investigation.

On June 27, 2012, around 12:30 p.m., Fortunado was waiting for Rolen Veraje in front of Southern College in Binalbangan when three men approached him, said “Ikaw ang nakabangga ng bata” (You were the one who hit the child), frisked him for a weapon, forcibly pushed him inside a car, and brought him to the NBI Bacolod City. According to Fortunado, at 3:30 p.m. that day, Philip B. Arles and Francisco C. Britanico arrived and asked why he killed Judge Henry Arles; when he denied knowledge, they tortured him to confess. Francisco shocked him with an electric wire and hit him with a PVC pipe in front of Aluzan and Arellano, who did nothing; while being video recorded, Philip and Francisco made him sign a document they prepared, electrocuted him for an hour, and Francisco forced him to write a letter to Lavin stating that he was voluntarily surrendering to ask for protective custody from the NBI.

The next day, Philip gave Fortunado a letter and directed him to familiarize himself with its contents. On July 3, 2012, Fortunado met Albert Arles, who questioned him based on the same letter and tortured him whenever he gave a wrong answer; he was then forced to sign a document admitting that he was hired to murder Judge Arles, even though it was not true. During his stay at NBI Bacolod City, he asked for a lawyer of his choice but was denied; Atty. Ana Maria Palermo, a friend of Francisco, was assigned as his counsel. The NBI detained Fortunado together with Alejandro Capunong and Jessie Daguia for the murder of Judge Arles. The NBI agents told them that their families would remain safe if they followed instructions and that they would receive ₱20,000.00 monthly salary under the Witness Protection Program; because of the torture, Fortunado agreed to the terms. Philip and Francisco also forced him to reveal the whereabouts of his gun, and on July 8, 2012, he, Philip, Francisco, and some NBI agents went to his house at Barangay Tampalon, where they found and confiscated the gun.

On July 11, 2012, the NBI Bacolod City transferred Fortunado to NBI Manila, where Albert, Philip, and Francisco visited and threatened him, and no family member was allowed to visit. This prompted his mother, Tessa Fortunado, to file a Petition for Writ of Amparo, docketed as SPEC. PROC. Case No. 12-2333, before Branch 42, Regional Trial Court, Bacolod City, praying for his release, an explanation of his detention, and redress for the torture inflicted on him. On December 26, 2012, the RTC rendered a Decision decreeing that the case did not fall within the sphere of the privilege of the Writ of Amparo, but directing Fortunado’s release after finding no legal basis for his continued confinement.

Aluzan contended that Fortunado, Capunong, and Daguia were positively identified by witnesses as perpetrators during the investigation of Judge Arles’ murder. He alleged that Capunong and Daguia were earlier apprehended through separate entrapment operations for illegal possession of firearms by the NBI, while Fortunado voluntarily surrendered because he feared for his life and safety; that the NBI Bacolod City acquired custody over Fortunado, who voluntarily confessed before the media about his involvement in the murder; that Fortunado, with the assistance of Atty. Palermo, signified his intention to participate as a witness in the investigation, prompting his transfer to NBI Manila for his own safety; that Fortunado later recanted his confession and filed a Petition for Writ of Amparo, which the RTC denied; that the Department of Justice, upon finding probable cause, filed an Information against Fortunado for murder; that a physical examination showed no injuries resulting from torture; that Dr. Voltaire G. Maniquis, Jr. of the Commission on Human Rights found no physical injuries on his body; that Philip and Francisco could not have tortured Fortunado because he was under 24-hour NBI surveillance; and that the complaints for torture filed by Fortunado’s counsel, Atty. Romeo S. Subaldo, on behalf of Capunong and Daguia, were dismissed for lack of merit. Lavin and Arellano reiterated Aluzan’s contentions in their respective counter-affidavits.

The Ombudsman found that petitioners lawfully arrested Fortunado on June 27, 2012 without a warrant; when Fortunado surrendered the unlicensed firearm and ammunition, he was considered to have been arrested in flagrante delicto for possessing them without authority. The Ombudsman noted that instead of subjecting Fortunado to an inquest proceeding, petitioners filed a regular complaint for Illegal Possession of Firearms only on August 7, 2012 before the Bacolod City Prosecutor’s Office, and that the Bacolod City Prosecutor’s Office indicted Fortunado through a Resolution dated December 21, 2012 for violation of Presidential Decree No. 1866, as amended by Republic Act No. 8294, and filed the corresponding Information only on January 7, 2013. According to the Ombudsman, it took petitioners six months to deliver Fortunado to the proper judicial authorities counted from June 27, 2012 to the filing of the Information on January 7, 2013, and concluded that Fortunado was detained for more than six months with no case filed against him. The Ombudsman found petitioners guilty only of Simple Misconduct and imposed suspension of three months without pay.

The Court of Appeals denied the petition but modified the Ombudsman’s finding to Simple Neglect of Duty. It ruled that Fortunado’s voluntary surrender did not give petitioners license to detain him indefinitely; while voluntary surrender may be likened to a waiver of Fortunado’s rights under Article 125 of the Revised Penal Code, his detention must still conform to Section 7, Rule 112 of the Rules of Court on the prescribed period for preliminary investigation. It also noted that Fortunado was charged with the murder of Judge Arles only on November 19, 2012, almost five months after he voluntarily surrendered on June 27, 2012. In the absence of any allegation or finding of wrongful intent, the CA held petitioners administratively liable only for Simple Neglect of Duty for their error in judgment, not Simple Misconduct.

On appeal, the Supreme Court’s factual review found that Fortunado admitted in his Sinumpaang Salaysay dated July 3, 2012 that he voluntarily surrendered to the NBI Bacolod City because he feared for his life and safety when two companions who had information about Judge Arles’ murder went missing. He recanted only on January 14, 2013, more than six months after executing the first Salaysay and after he was charged with illegal possession of firearms on January 7, 2013. The NBI Medico-Legal Division-Manila medical certificate showed no injuries resulting from torture, and the CHR examination likewise yielded no documented injuries. The first Salaysay was notarized and carried the presumption of regularity, and Fortunado failed to prove by clear and convincing evidence that it was not freely and validly executed. Fortunado was in petitioners’ custody for only 14 days, from June 27, 2012 to July 11, 2012, when he was transferred to NBI Manila. When taken into custody, he surrendered a Colt .45 caliber pistol with Serial No. 526393, six pieces of .45 live ammunition, one .45 caliber pistol magazine, and cash totaling ₱39,000.00; verification showed he had no license or authority to possess the firearm and ammunition. Petitioners forwarded a request for preliminary investigation to NBI Manila regarding the murder on July 27, 2012, 30 days after the surrender, and forwarded the request to the Bacolod City Prosecutor’s Office regarding illegal possession only on August 7, 2012, 41 days after confiscating the pistol and ammunition.

• Voluntary Protective Custody and Article 125: Petitioners maintained that they did not indefinitely detain Fortunado because he voluntarily sought protective custody from the NBI for fear of his safety and security in view of his alleged participation in Judge Arles’ murder; they stressed that his detention was legal from beginning to end and that Article 125 of the Revised Penal Code, as amended, was not applicable.
• No Simple Neglect of Duty: Petitioners argued that the Court of Appeals erred in finding them guilty of Simple Neglect of Duty.
• Due Process: Petitioners argued that the Court of Appeals erred in charging them with an offense other than what they were summoned to answer, in violation of due process.

• Involuntary Detention: Respondent denied that he voluntarily surrendered to petitioners and insisted that NBI agents abducted him on June 27, 2012.
• Torture and Coerced Confession: Respondent alleged that he was tortured by Philip B. Arles and Francisco C. Britanico in the presence of Aluzan and Arellano, forced to sign documents, and denied his request for a lawyer of his choice.
• Arbitrary Detention and Grave Misconduct: Respondent filed the complaint for violation of Article 124 of the Revised Penal Code for Arbitrary Detention and for Grave Misconduct before the Ombudsman.

• Indefinite Detention: Whether the Court of Appeals erred in holding that petitioners were detaining Fortunado indefinitely.
• Simple Neglect of Duty: Whether the Court of Appeals erred in finding petitioners guilty of Simple Neglect of Duty.
• Due Process: Whether the Court of Appeals erred in charging petitioners with an offense other than what they were summoned to answer, in violation of due process.
• Substantial Evidence: Whether substantial evidence supports holding petitioners administratively liable for Fortunado’s six-month detention without criminal charges.

• Indefinite Detention: No. Petitioners were not liable for the entire six-month detention; Fortunado was in their custody for only 14 days before transfer to NBI Manila, and the 15-day preliminary investigation period had not lapsed while he was with them.
• Simple Neglect of Duty: Yes. Petitioners were liable for Simple Neglect of Duty, but for belatedly forwarding the requests for preliminary investigation beyond the 15-day period under Section 7, Rule 112, not for the entire detention.
• Due Process: No. The petition was denied and the Court of Appeals’ disposition was affirmed; the text does not separately discuss this due process argument.
• Substantial Evidence: No as to the entire six-month detention, but yes as to the delayed forwarding of the preliminary investigation requests, which constituted Simple Neglect of Duty.

• Indefinite Detention: The Court rejected the Court of Appeals’ premise that petitioners were liable for detaining Fortunado indefinitely. The records showed that Fortunado voluntarily surrendered on June 27, 2012 and remained in petitioners’ custody only until July 11, 2012, when custody was transferred to NBI Manila. The 15-day period for preliminary investigation had not lapsed during those 14 days, so his constitutional right to liberty had not yet been violated while he was with petitioners. Petitioners could not be sanctioned for the period after transfer because they no longer had control over him. Although voluntary surrender may be deemed an implied waiver of Article 125, the waiver does not permit indefinite detention; it must still conform to Section 7, Rule 112.
• Simple Neglect of Duty: Even though petitioners were not liable for the entire detention, they failed to promptly forward the requests for preliminary investigation. The request to NBI Manila regarding the murder was forwarded on July 27, 2012, 30 days after Fortunado’s surrender; the request to the Bacolod City Prosecutor’s Office regarding illegal possession was forwarded on August 7, 2012, 41 days after the firearm and ammunition were confiscated. Both exceeded the 15-day period under Section 7, Rule 112, and no plausible explanation for the delay appeared. Because there was no bad faith, wrongful intent, or ulterior motive, the offense was Simple Neglect of Duty, not Gross Neglect or Misconduct. The Court applied Siniclang’s definition and Daplas’s rule that a good-faith error of judgment is merely Simple Negligence akin to Simple Neglect of Duty. The penalty was within Section 50(D)(1), Rule 10 of the RRACCS.
• Due Process: The provided text does not contain a separate discussion of the due process argument. The petition was denied and the Court of Appeals’ Decision and Resolution were affirmed.
• Substantial Evidence: The Court found no substantial evidence to hold petitioners liable for the entire six-month detention without charges, because they had custody for only 14 days and the 15-day period had not lapsed. However, substantial evidence supported liability for Simple Neglect of Duty based on the unexplained delays in forwarding the preliminary investigation requests. Their duty ended when they forwarded the requests, albeit belatedly; thereafter, the conduct of the preliminary investigation and the filing of charges fell on the investigating prosecutors under Sections 2 and 4, Rule 112.

• Implied Waiver of Article 125 of the Revised Penal Code — A person who voluntarily surrenders for protective custody may be deemed to have impliedly waived the rights under Article 125, despite Republic Act No. 7438 requiring an express written waiver with counsel, under peculiar circumstances as an exception pro hac vice. The Court applied this to Fortunado’s voluntary surrender to NBI Bacolod City.
• Waiver Does Not Authorize Indefinite Detention — Even with a waiver of Article 125, detention must coincide with the prescribed period for preliminary investigation under Section 7, Rule 112, which is 15 days, or 30 days in cases of violation of Republic Act No. 9165. Detention beyond this period violates the constitutional right to liberty, and the detainee must be promptly released if the period lapses. The Court applied this by holding petitioners not liable for the entire six-month detention but liable for the delayed forwarding of the preliminary investigation requests.
• Simple Neglect of Duty — This is the failure of an employee to give proper attention to a required task or to discharge a duty due to carelessness or indifference. It becomes Gross Neglect of Duty when the omission results from the employee’s lack of even the slightest care, conscious indifference to the consequences, and/or flagrant and palpable breach of duty. The Court applied this by holding that the failure to promptly forward the requests for preliminary investigation, absent bad faith, constituted Simple Neglect of Duty.
• Notarized Document Presumption of Regularity — A notarized document enjoys the disputable presumption of regularity and carries evidentiary weight as to its due execution; it must be overcome by clear and convincing evidence. The Court applied this to the first Sinumpaang Salaysay, which Fortunado failed to prove was not freely and validly executed.
• Court Not a Trier of Facts; Exception — In petitions for review under Rule 45, the Court’s appellate jurisdiction is limited to questions of law, except when the factual findings and conclusions of the Ombudsman and the Court of Appeals are conflicting and contradictory. The Court applied this exception because the Ombudsman and the Court of Appeals reached conflicting findings.

• "The waiver of Article 125 of the RPC does not vest upon the DOJ, PPO, BJMP, and PNP the unbridled right to indefinitely incarcerate an arrested person and subject him to the whims and caprices of the reviewing prosecutor of the DOJ. The waiver of Article 125 must coincide with the prescribed period for preliminary investigation as mandated by Section 7, Rule 112 of the Rules of Court. Detention beyond this period violated the accused's constitutional right to liberty." — This passage states the controlling rule that a waiver of Article 125 does not permit indefinite detention and must be tied to the preliminary investigation period.
• "Accordingly, the Court rules that a detainee under such circumstances must be promptly released to avoid violation of the constitutional right to liberty, despite a waiver of Article 125, if the 15-day period (or the 30-day period in cases of violation of R.A. No. 9165) for the conduct of the preliminary investigation lapses." — This defines the release requirement once the preliminary investigation period expires, even when Article 125 has been waived.
• "In the case, the failure of petitioners to promptly forward the subject requests for preliminary investigation to the investigating prosecutors is tantamount only to Simple Neglect of Duty in the absence of bad faith on their part." — This is the ratio for the administrative liability imposed on petitioners.
• "The offense then becomes Gross Neglect of Duty when such omission of diligence resulted from the employee's lack of even the slightest care, conscious indifference to the consequences, and/or flagrant and palpable breach of duty." — This distinguishes Simple Neglect of Duty from Gross Neglect of Duty, a key classification in the case.

• IBP Pangasinan Legal Aid vs. Department of Justice, 814 Phil. 440 (2017) — Cited for the rule that a waiver of Article 125 does not vest an unbridled right to indefinitely incarcerate; the waiver must coincide with Section 7, Rule 112, and the detainee must be released if the preliminary investigation period lapses.
• Siniclang vs. Court of Appeals, G.R. Nos. 234766, 239855, 247366, & 256013, October 18, 2022 — Cited for the definition of Simple Neglect of Duty and the distinction from Gross Neglect of Duty.
• Daplas vs. Department of Finance, 808 Phil. 763, 774 (2017) — Cited for the principle that an act done in good faith, constituting only an error of judgment without ulterior motives, is merely Simple Negligence akin to Simple Neglect of Duty.
• Tortona vs. Gregorio, 823 Phil. 980, 991 (2018) — Cited for the notarized document’s presumption of regularity and the clear and convincing evidence standard to overcome it.
• Land Bank of the Philippines vs. Quilit, G.R. No. 194167, February 10, 2021 — Cited for the rule that the Court is not a trier of facts in Rule 45 petitions.
• Carbonell vs. Carbonell-Mendes, 762 Phil. 529, 536 (2015) — Cited for the same rule limiting the Court’s factual review.
• Republic vs. Martinez, G.R. Nos. 224438-40, September 3, 2020, 949 SCRA 211, 220-221 — Cited for the exceptions to the rule that the Court is not a trier of facts.

• Article 125, Revised Penal Code — Requires delivery of a detained person to the proper judicial authorities within 12, 18, or 36 hours depending on the penalty. The Court held that voluntary surrender may be an implied waiver, but the waiver must still conform to Section 7, Rule 112.
• Section 2(e), Republic Act No. 7438 — Requires a waiver of Article 125 to be express, in writing, and signed by the arrested or detained person in the presence of counsel. The Court deemed the peculiar circumstances as an exception pro hac vice.
• Section 7, Rule 112, Rules of Court — Prescribes the 15-day period, or 30 days for violations of Republic Act No. 9165, for the conduct of preliminary investigation. Petitioners violated this period by belatedly forwarding the requests for preliminary investigation.
• Section 50(D)(1), Rule 10, Revised Rules on Administrative Cases in the Civil Service (RRACCS) — Classifies Simple Neglect of Duty as a less grave offense punishable by suspension of one month and one day to six months for the first offense. The penalty of two months without pay was affirmed.
• Presidential Decree No. 1866, as amended by Republic Act No. 8294 — Governs illegal possession of firearms and ammunition. Fortunado was charged under this law only on January 7, 2013.
• Republic Act No. 9745 (Anti-Torture Act of 2001) — Basis of the torture complaint against petitioners. The Court found no evidence of torture.
• Sections 2 and 4, Rule 112, Rules of Court — After the requests were forwarded, the conduct of the preliminary investigation and the filing of criminal charges fell on the investigating prosecutors.
• Article 124, Revised Penal Code — Defines Arbitrary Detention, the criminal charge included in Fortunado’s complaint before the Ombudsman.

Gaerlan and Dimaampao, JJ., concurred. Singh, J., filed a separate concurring opinion; the provided text does not include its contents.

• Justice Caguioa — The provided text only notes that Justice Caguioa, as Chairperson, dissented and does not reproduce the dissenting opinion’s reasoning.