• Affidavit of Desistance can’t guarantee complaint dismissal

    1
    Persida Acosta

    Persida Acosta

    Dear PAO,
    I filed a complaint for violation of Republic Act No. 9262 against my former boyfriend who is a police officer before the Discipline, Law and Order Section (DLOS) of the Philippine National Police. My real intention is to compel my former boyfriend to support my child. My boyfriend proposed to me that he would give financial support provided I withdrew the complaint. We signed a “Kasunduan” regarding the matter and I executed an Affidavit of Desistance, stating that I am no longer interested to pursue my complaint.

    After six months, I was surprised to learn that my former boyfriend was suspended from work because of the complaint that I filed. How come the case continued despite the fact that I have executed an Affidavit of Desistance?
    Berlinda

    Dear Berlinda,
    The execution of an Affidavit of Desistance does not guaranty that the complaint you filed against a police officer will be dismissed. Under Section 12, Rule 17of the National Police Commission (NAPOLCOM) Memorandum Circular No. 2007-001, it is stated that:

    “Xxx the failure to prosecute the case during the hearing, despite due notice, shall be sufficient ground to drop the complaint where the culpability of the respondent could not be established or proven without the testimony of the complaining witness. However, before dropping the complaint, the disciplinary authority or designated hearing officer shall exert best efforts to locate the complainant and his witnesses and to inquire into the reasons for their failure to prosecute the case.

    “In cases where the culpability of the respondent can be established by evidence other than the testimony of the complainant, non-appearance of the latter shall not be a ground to terminate the proceedings. The disciplinary authority or hearing officer shall endeavor to continue with the hearing and secure the attendance of other vital witnesses, upon proper motion by the prosecution”.

    In your situation, even if you have executed an Affidavit of Desistance, if the Philippine National Police (PNP) can still prove by other evidence other than your testimony that there is a violation or transgression of the PNP policies, then, the complaint can proceed even without your participation.

    On the other hand, if the only evidence available to prove the culpability of the respondent is your testimony only, it follows that your non- participation in the proceedings would result to the dismissal of the case. This finds support in the case of Marcelo vs.Bungubung(G.R. No. 175201, April 23, 2008), where the Supreme Court said that:

    “In Gaviola v. Salcedo, which involved an administrative case for suspension or disbarment against a lawyer, this Court gave probative value to the Affidavit of Desistance of the complainant, pronouncing that while the filing of an Affidavit of Desistance by the complainant for lack of interest does not ipso facto result in the termination of the administrative case, it was constrained to dismiss the charges since such charges cannot be proven without the evidence of the complainant and her witnesses. Such is the case at bar. Essentially, the administrative case against Bungubung was based on the allegations made by Doromal in his Affidavit-Complaint, without which, the case against Bungubung collapses”.

    Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

    We hope that we were able to enlighten you on the matter.

    Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

    Share.
    loading...
    Loading...

    Please follow our commenting guidelines.

    1 Comment

    1. alexander r. bataller on

      Where and how can I post my concern and ask assistance from PAO/Atty Persida Acosta? Thanks for the reply. God bless