DOJ Issues Guidelines on the Custody of Suspected Drug Offenders Pending Resolution of Automatic Review

26 February 2013

In order to balance the interest of the State to ensure that drug offenders are not precipitately and erroneously absolved of wrongdoing, and the interest of the accused not to be provisionally deprived of liberty longer than is just and necessary, the Department of Justice (DOJ) issued a Department Circular (D.C.) setting forth "Guidelines on the Release of Respondents/Accused Pending Automatic Review of Dismissed Cases Involving Republic Act No. 9165 (Comprehensive Dangerous Drugs Act)." 

On the one hand, D.C. No. 022, S. 2013, reiterates the procedure set forth in earlier Department issuances (i.e., D.C. Nos. 046, s. 2003, and 012, s. 2012) by restating that the dismissal  of all drug-related cases, involving violations for which the maximum penalty is either  reclusion perpetua or life imprisonment, shall be subject to automatic review by the  Secretary of Justice, whether such case  was dismissed on inquest, preliminary investigation or reinvestigation stage. Automatic review means that the case shall be  elevated to the Office of the Secretary for review, regardless of whether or not the  complainant/s moved to file an appeal against the dismissal of the  charges. 

It also  reiterates, in part, the direction set forth in D.C. No. 12, s. 2012 that such automatic review shall be "without prejudice to the right of the respondent to be immediately  released from detention pending automatic review." This is in clear recognition of the right of the accused not to be detained for longer than is allowed by law, which is  especially applicable in cases where the respondent was subjected to warrantless arrest, and the case was dismissed on the inquest stage without the  respondent waiving  his or her right to be released from custody if no charges are filed within the time periods set forth in Article 125 of the Revised Penal Code (e.g., thirty-six  (36) hours, for crimes or offenses punishable by reclusion perpetua or its equivalent, among others).

On the other hand, pursuant to the declared policy behind the passage of R.A. No. 9165, i.e.,"to enhance further the efficacy of the law against dangerous drugs, it being one of today's more serious social ills" (Section 2), the recently issued D.C. No. 022 of the DOJ clarifies the cases or circumstances under which the dismissal of the case shall not automatically warrant the release of the respondent from custody pending review by the Office of the Secretary of Justice. This is in consideration of the fact that cases where the maximum imposable penalty is either reclusion perpetua or life imprisonment (which are the cases covered by D.C. No. 022) are presumably high-priority drug cases, and that the continued detention of the accused is not just called for, but is also in accordance with law, such as when the respondent willingly and expressly waived his or her rights under Article 125 of the R.P.C. by requesting the conduct of a regular preliminary investigation, or where the courts have already acquired jurisdiction over the case before its dismissal, pursuant to a subsequent reinvestigation or preliminary investigation.

"The administration and delivery of justice require the balancing of apparently opposing, yet equally recognized and protected interests," said Secretary of Justice Leila M. De Lima. "Our mandate in the Executive Department is to ensure that laws are faithfully executed, and that violations thereof do not go unpunished, especially laws that seek to curtain social blights like the proliferation of illegal drugs. An integral part of that mandate is ensuring that those accused of offending our laws, especially those who were apprehended in flagrante delicto and whose alleged offenses are of such magnitude that they could be subjected to the harshest penalty under the law, are given no opportunity to flee from our jurisdiction or otherwise evade justice. Thus, this Department Circular is meant to address the concerns raised in relation to the implementation of D.C. No. 12, which directed the release of all offenders pending the resolution of the automatic review."

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