Computation of the 10-Day Period to Submit a Counter-Affidavit
(Philippine preliminary-investigation context)
1. Why the “10-day” period matters
When a criminal complaint undergoes preliminary investigation before the Office of the City/Provincial Prosecutor (or the Office of the Ombudsman, the DOJ’s Task Forces, etc.), the respondent’s very first opportunity to be heard is through a counter-affidavit. Section 3(b), Rule 112 of the Rules of Criminal Procedure directs the investigating officer to issue a subpoena that:
“…shall contain the affidavit of the complainant and the supporting documents, and shall require the respondent to submit counter-affidavits and other supporting documents within ten (10) days from receipt …”
Failing to file on time generally waives the right to contest the complaint in the investigation stage; the prosecutor may already resolve the case on the basis of the complainant’s evidence alone. Because that 10-day window is short, knowing exactly how to count every day is critical.
2. The general rule on reckoning: Rule 22, Rules of Court
- Day of receipt excluded. The countdown starts on the day after the respondent actually receives the subpoena and records.
- Last day included. The 10th calendar day is ordinarily the deadline.
- If the last day is a Saturday, Sunday, or legal holiday, filing may be done on the next working day.
- “Legal holidays” cover both special and regular holidays proclaimed nation-wide; local holidays count only if the prosecutor’s office where filing must be made is closed on that day.
Illustration • Subpoena received: Thursday, 13 March 2025 • Day 1 = Friday 14 March • Day 10 = Sunday, 23 March → deadline moves to Monday, 24 March 2025.
3. Modes of service & effect on the start of the period
| How the respondent receives the subpoena | When the 10 days start | Proof usually required |
|---|---|---|
| Personal service or personal pick-up | Next calendar day | Signed acknowledgment / registry on file |
| Registered mail | Next day after actual delivery (not after first notice) | Registry return card |
| Accredited private courier | Next day after actual receipt | Courier’s proof of delivery |
| Electronic service (e.g., DOJ’s e-subpoena during pandemic) | Next calendar day after electronic timestamp | Printed/saved e-mail with header |
Tip: Keep the envelope, registry card, or delivery receipt; you bear the burden of showing when the clock started if a timeliness issue later arises.
4. Computing “working” vs. “calendar” days
- Rule 112 itself speaks of “days,” not “working days”; hence the default is calendar days.
- Some prosecutors expressly direct “ten (10) calendar days” in the subpoena; this merely reiterates the default.
- However, the prosecutor (or the Ombudsman) may for good cause fix a different period in the subpoena (e.g., “10 working days”). In Llenes v. Torres (G.R. No. 180954, 27 Feb 2008), the Court recognized that these directives are procedural, not jurisdictional—the investigating officer has discretion to accept belated filings in the interest of due process.
5. What happens when the last day is non-working for other reasons
- Unforeseen closures (typhoon signals, power failure, building disinfection, etc.): By analogy to Crespo v. Moglaya rulings on court filings, if the prosecutor’s office cannot receive pleadings on the last day, the deadline shifts to the next day it re-opens.
- Court/DOJ circular suspending reglementary periods (e.g., Supreme Court Administrative Circulars during the COVID-19 quarantine): Such circulars toll the running of the 10-day period for their stated duration. The remaining balance of days starts to run again the day after suspension is lifted.
6. Extensions of time
The Rules of Court do not grant an automatic extension, but the Supreme Court repeatedly stresses that “due process is better served by liberality than by technicality.” Common practice:
Motion for extension filed before the original deadline, stating:
- reason (voluminous records, securing vital documents abroad, illness, etc.);
- specific additional period sought (usually 5–15 days); and
- manifestation of good faith (draft affidavit attached in part, if possible).
Effect: The investigating officer may grant the extension expressly (written order) or implicitly (by receiving the late counter-affidavit without objection).
Jurisprudence: In Estrada v. Office of the Ombudsman (G.R. Nos. 212761-62, 21 Jan 2015), the Court upheld the Ombudsman’s acceptance of a counter-affidavit filed beyond the original 10-day period, emphasizing the paramount right to explain one’s side before the finding of probable cause.
7. Mechanics of “filing”
| Mode of filing | When deemed filed |
|---|---|
| Personal filing at the prosecution office | Date actually stamped “RECEIVED” |
| Registered mail | Date of mailing (as shown by the registry receipt) |
| Accredited courier (DOJ allowed since Department Circular #70-2017) | Date shown on official tracking when lodged with courier |
| E-mail/e-filing (governed by DOJ’s Interim Guidelines and SC A.M. No. 20-12-01-SC) | Sending date-time in the sender’s outbox, provided the office acknowledges |
Remember: Proof of filing—registry receipts, courier air waybills, or sent-mail screenshots—must be annexed to the counter-affidavit submitted in hard copy later (if required).
8. If the respondent misses the deadline
- Waiver of right to controvert. The prosecutor may proceed to resolve ex parte.
- But under Sales v. Sandiganbayan (G.R. No. 171171, 4 Feb 2008), failure to submit a counter-affidavit does not automatically invalidate the preliminary investigation; only “substantial prejudice” (e.g., clear denial of opportunity) warrants nullification.
- Still possible to be admitted late. Investigating officers routinely accept late counter-affidavits before resolution is drafted, citing administrative efficiency and the Supreme Court’s tendency to annul dismissals made on stark technicalities.
9. Special rules outside the DOJ
| Forum | Governing provision | Distinct points |
|---|---|---|
| Office of the Ombudsman | Admin. Order 07 & Omnibus Rules, Sec. 4(c) | Same 10-day rule; Khan, Jr. v. Office of the Ombudsman, G.R. No. 125685 (2000) stresses “ample opportunity” > rigidity |
| AFP Provost Marshal / PNP IAS | Respective PI guidelines | Military/PNP respondents often given 15 days |
| Bureau of Customs forfeiture | CAO 10-2020 | Referred to as “verified answer,” 15 calendar days |
10. Practical checklist for counsel
- Log the date and exact time of receipt of the subpoena.
- Mark the calendar counting ten calendar days, flagging weekends/holidays.
- Draft early, seek records promptly; motions for bill of particulars are rare in PI practice.
- File in duplicate or triplicate (plus USB/soft copy if required).
- Secure proof of mailing/service the same day.
- If truly impossible to finish, move for extension before the 10th day.
- Monitor for suspension orders (typhoon, pandemic, power outage) that legally pause the countdown.
- After filing, email a courtesy copy to the investigating prosecutor (optional but appreciated).
Key Take-aways
- Day-after-receipt–to–Day-10 is the baseline computation rule.
- The deadline swims with weekends, holidays, office closures, and Supreme Court or DOJ suspensions.
- Extensions are discretionary but usually granted absent dilatory intent.
- Even a late counter-affidavit is often admitted before resolution—substantial justice trumps strict technicality.
- Keep impeccable proof of both receipt and filing; most timeliness arguments crumble for lack of documentary support.
Armed with these principles—and the relevant jurisprudence—you can confidently track, extend, or defend the 10-day reglementary period for counter-affidavits in Philippine practice.