ADMINISTRATIVE ORDER NO. 65 -
IMPOSING ON ROSENDO T. BRILLANTES, ASSISTANT CITY PROSECUTOR OF CEBU,
THE PENALTY OF ONE (1) MONTH AND ONE (1) DAY SUSPENSION WITHOUT PAY
This refers to the administrative case for
gross neglect of duty and conduct prejudicial to the best interest of
the service filed by the Department Justice against Assistant City
Prosecutor Rosendo T. Brillantes of the Office of the City Prosecutor
of Cebu City.
On the basis of the evidence gathered in the investigation conducted by
the Office of the Regional State Prosecutor, Region VII, the Department
of Justice formally charged respondent for the aforementioned offenses
for the disappearance or loss of 288.20 grams of shabu used as
evidence, albeit still to be formally offered, in Criminal Case No.
CBU-54970 (People vs. Allan Arriegado).
In his answer, respondent asserted that the loss adverted to was not
the result of his negligence, claiming that he kept the items in
question inside the drawer of the steel cabinet which also contained
shabu and other evidence left by the late Prosecutor Domingo Uy. In
this regard, he described the cabinet as "safe", the door of the room
where it is located being kept closed even during office hours. He
stated that the loss of the said evidence was due to fortuitous event,
adding that he joined the prosecution service only a few months before
the incident happened.
The Secretary of Justice found respondent prosecutor guilty of simple
neglect of duty on the strength of the following premises:
"After
a careful study of the evidence on record, we find that there is
substantial evidence to show that respondent prosecutor was indeed
remiss in his duty of preserving and safekeeping the evidence involving
288.20 grams of shabu relative to Criminal Case No. CBU-54970 . . . and
which evidence have not been formally offered in court. There is not
dispute that on November 17, 2000, Prosecutor Paderanga turned over to
him the case records together with said evidence. Thus, upon receipt
thereof, it behooves him to exercise due diligence in preserving and
safekeeping the same to insure their presentation in court. In the case
at bar, unfortunately, he failed to observe such diligence required
under the circumstances when he simply placed the evidence of shabu in
the steel cabinet despite knowledge that its lock was defective.
Prudence dictates that he should not have left such kind of evidence in
that cabinet unclosed or not properly secured, especially so that the
room wherein the said cabinet is located, is not totally free from
access of other people. Given such circumstances, obviously, respondent
prosecutor was too lax in his duty to insure the safety of the evidence
involved.
"While it is true that Flor
Mamalias, evidence custodian officer, admitted that they do not have a
vault to safe keep the said evidence, however, respondent prosecutor is
expected to exert utmost efforts to keep the evidence in a safe place.
At the very least, he should have seen to it first that the lock of the
cabinet be repaired and properly secured before keeping thereat the
evidence. Or, if the evidence cannot be kept secured in the office, he
should have informed his head of office about the problem so that
proper representation should have been made with the PNP Crime
Laboratory of the Region for the latter to accommodate the safekeeping
of the evidence. It must be stressed that public prosecutors are duty
bound to protect and preserve any physical and real evidence entrusted
in their custody during trial. The Manual of Prosecutors mandates that
measure should be taken to provide for secondary evidence consisting of
photographs or pictures of the physical and real evidence, which
evidence shall not be attached to the records of the case. This only
shows that public prosecutors are expected to do every measure whatever
prudent and necessary under the circumstances to protect and preserve
the evidence to insure their presentation in court. The State cannot
afford to allow prosecutors to be uncaring and neglectful of the
evidence in the custody; otherwise, this would seriously affect the
faith of the people in the prosecution service. Worse, it might set a
dangerous precedent that would undermine the government's campaign
against criminality. Thus, public service demands that the diligence of
a good father of the family should equally apply to prosecutors in
protecting and preserving the evidence entrusted to them in the
performance of their official duty. Regrettably, respondent prosecutor
failed to live up to this expectation.
Anent the contention of
respondent prosecutor that this case be dismissed because the court
anyway decided the Arriegado case not due to loss of evidence but for
failure of the prosecution to prove the crime charged, even granting it
to be so, suffice it to say that it does not detract from the fact that
an inexcusable lapse in handling the evidence happened. . . . It must
be pointed out that in the successful prosecution of possession of
prohibited drugs or drug pushing, the presentation in court of the
prohibited drug, being the corpus delicti of the offense, is of vital
necessity. It bears stressing, too, that the rampant commission of
murder, rape and other odious felonies has been largely attributed to
the proliferation and accessibility of illegal drugs, notably . . .
shabu. Thus, this incident should not be taken for granted because it
undermines the integrity and efficiency of the prosecution service.
However, in light of the
totality of the circumstances obtaining in this case, respondent
prosecutor, who was then a new prosecutor and has not been thoroughly
apprised of the policy of the office in the safe keeping of the
evidence by his immediate superior, and there being no wrongful
intention to commit the offense, we believe that this omission herein
constitutes only neglect of duty for which the appropriate penalty
should be suspension of one (1) month and one (1) day from the service
without pay pursuant to the Omnibus Rules implementing Book V of
Executive Officer No. 292 and other Pertinent Civil Service Laws."
We concur with the findings of the Secretary of Justice. Indeed, the
act of respondent in simply keeping the evidence in an unsecured filing
cabinet constitutes simple neglect of duty. Such display of laxity in
the custody of evidence, especially shabu, is inexcusable as it
undermines the integrity and efficiency of the government's efforts
against the proliferation of dangerous drugs.
We note that respondent is relatively new in his position and
apparently has not, during the period, been properly apprised by his
immediate superior of his responsibility regarding safeguarding all
physical evidence in his possession and control. This fact, however,
cannot, standing alone, relieve him from liability. It may, at most, be
considered as a mitigating factor.
WHEREFORE, as recommended by the Secretary of Justice, respondent
Assistant City Prosecutor Rosendo T. Brillantes is hereby suspended
from office for a period of one (1) month and one (1) day without pay,
effective upon receipt of a copy of this Order.
SO ORDERED.
March 4, 2003
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