Writing legal article
The topic involves the deadline for submitting a counter-affidavit upon receiving a subpoena in the Philippines. According to Rule 112, Section 3(b) of the Rules of Criminal Procedure, the respondent must submit their counter-affidavit within ten days from receipt of the subpoena. The article will also explore potential extensions, including the possibility of a 15-day extension granted by the prosecutor through a motion. I'll include insight from relevant jurisprudence and Department of Justice circulars for deeper context.
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Understanding the Deadline for Filing a Counter-Affidavit After Receiving a Subpoena in the Philippines A practitioner-oriented guide to Rule 112, Section 3 (b) of the 2019 Revised Rules of Criminal Procedure and related issuances
1. What stage of the case are we talking about?
A counter-affidavit is required only in a preliminary investigation—the paper-based, fact-gathering stage conducted by a public prosecutor (or by the Office of the Ombudsman, special investigating bodies, or a deputized prosecutor) to determine probable cause before the filing of an information in court.
- It is not the same as an Answer in a civil action, nor does it apply to inquest proceedings (except when the arrested person opts for regular PI).
- The governing procedure is Rule 112 of the 2019 Revised Rules of Criminal Procedure (RRCP).
2. The statutory deadline
| Instrument | Text of the rule | Practical effect |
|---|---|---|
| Rule 112, § 3 (b) | “Within ten (10) calendar days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses…” | The default and strictly reckoned period |
Key points:
- Calendar, not working, days. Day 1 is the day after actual service of the subpoena on the respondent or authorized representative (Rule 22, § 1, RRCP).
- Complete package requirement. The 10-day clock starts only when the respondent receives (a) the subpoena and (b) all the complaint-affidavits and evidence relied upon by the complainant. In Sayson v. People (G.R. 229454, 5 March 2018) the Supreme Court voided a prosecutor’s resolution because the respondent’s 10-day period never began—he was not given the attachments.
- Joint respondents. Each respondent gets an individual 10-day period regardless of whether the others have already filed.
- Modes of service. Personal, registered mail, private courier, or e-mail (DOJ Circular 59-2020). If the address on record is wrong or the respondent evades service, substituted service may be availed of; the 10-day period still counts from actual or constructive receipt.
3. Requesting an extension
There is no express provision in Rule 112 for extensions, but practice and DOJ policy recognize them on meritorious grounds:
| Issuance / case | Guidance |
|---|---|
| DOJ Department Circular 70-2000 | Prosecutors “may grant one 15-day extension upon written motion filed before the original deadline.” |
| NPS Memorandum Circular 12-2015 | Up to 30 days of cumulative extensions “for voluminous records, medical incapacity, or overseas travel.” |
| Office of the Ombudsman Rules of Procedure, Rule II, § 4 | Respondent may be given one 15-day extension for “good reasons.” |
| Manuel v. Judge Gutierrez (A.M. RTJ-04-1867, 2004) | Failure to act on a timely extension request is a due-process violation. |
Practical tips for a motion
- File before the 10th day; include proof of service via e-mail or personal filing.
- State specific grounds (e.g., need to secure CCTV footage, obtain foreign documents, or medical isolation).
- Attach a proposed schedule (e.g., asking until a date certain).
- Be prepared for shorter extensions if the offense is covered by Republic Act 11937 (Expeditious Prosecution of Heinous Crimes), which urges stricter timelines.
4. Consequences of missing the deadline
| Scenario | Effect |
|---|---|
| No filing, no extension requested | Prosecutor may resolve ex parte—i.e., solely on the complainant’s evidence (People v. Pabalan, G.R. 223077, 2020). |
| Late filing | Prosecutor has discretion to accept out of time counter-affidavits “in the higher interest of justice” (G.R. 167989, 2008), but must state reasons in the resolution. |
| Repeated non-appearance | May be cited for indirect contempt and the subpoena may be enforced by warrant of arrest if the case is filed in court. |
| Forfeiture of defenses | Matters not raised in the counter-affidavit (e.g., alibi, illegality of arrest) are often deemed waived for purposes of probable-cause determination. They may still be raised at trial, but by then an information and possible warrant of arrest exist. |
5. Special or parallel procedures
| Body / Statute | Deadline |
|---|---|
| Cybercrime Office (DOJ-OOC) under R.A. 10175 | Still 10 days, but subpoenas are commonly served via e-mail with electronic evidence annexed. |
| Securities and Exchange Commission (SEC Rules on Administrative Proceedings) | Respondent corporation has 15 days to answer; Rule 112 does not apply. |
| Barangay justice complaints (Katarungang Pambarangay) | No counter-affidavits; the subpoena enforces appearance for mediation. |
| Committee on Complaints and Investigation (CHED, PRC, etc.) | Governed by respective agency rules; generally 5-15 days. Rule 112 is only persuasive. |
6. Form and content of the counter-affidavit
- Sworn narrative responding point-by-point to each allegation.
- Supporting affidavits of witnesses with personal knowledge (also sworn).
- Certified documents (e.g., contracts, receipts); attach photocopies at filing, originals for comparison upon request.
- Verification and jurat before a prosecutor or an authorized notary public.
- Proof of service on the complainant, usually by registered mail or courier.
Failure to comply with these formalities—even if filed on time—may lead to outright rejection (DOJ MC 18-2014).
7. Counting the period: a quick reckoner
| Day event happens | Action |
|---|---|
| 0 | Respondent receives complete subpoena packet (e.g., May 5, 2025). |
| 1 | Day 1 (May 6) starts running. |
| 10 | Last day (May 15). If this falls on a Saturday, Sunday, or holiday, file on the next working day (Rule 22, § 1). |
| Before Day 10 | If you need more time, file Motion for Extension. |
8. Jurisprudential highlights
- Leviste v. Almeda (G.R. 182677, 2008): Preliminary investigation is not a constitutional right but a statutory one; substantial compliance with Rule 112 suffices if no prejudice is shown.
- Ang Tibay v. CIR (G.R. 46496, 1940): The due-process minima (sufficient notice and real opportunity to explain) apply to administrative and quasi-judicial proceedings, including preliminary investigation.
- Go v. Court of Appeals (G.R. 101837, 1993): Prosecutor may admit out-of-time filings when strict application would defeat justice.
- Cagang v. Sandiganbayan (A.M. SB-17-0001, 2018): Restated that probable cause determination requires a real opportunity to controvert; failure to provide attachments tolls the 10-day period.
9. Practitioner’s checklist
- Diary the 10-day deadline immediately.
- Verify completeness of annexes; insist on copies of CCTV/videos or digital logs if referenced in the complaint.
- Gather documentary defenses early—bank certificates, GPS data, employment logs.
- Consider forensic preservation (cell-phone extraction, hard-drive imaging) with a chain-of-custody affidavit.
- Evaluate the need for experts (for handwriting, medico-legal, cyber-forensics) and secure sworn reports.
- File a brief, cogent motion for extension if needed; propose a definite date and attach an unsigned draft counter-affidavit to show good faith.
- Serve the complainant the same day you file; keep courier receipts and, if e-mail, enable read receipts.
- Follow up: request a receiving copy of the complainant’s opposition (if any) and ask for a copy of the prosecutor’s resolution once issued.
10. Frequently asked questions
| Question | Answer |
|---|---|
| Can I ignore the subpoena? | You may, but the prosecutor can decide ex parte, and once an information is filed the court may issue a warrant. |
| Is notarization mandatory? | Yes. Rule 112 requires the counter-affidavit to be sworn; otherwise it is a mere scrap of paper. |
| Can I e-mail my counter-affidavit? | Only if the subpoena expressly allows electronic filing or the prosecutor later permits it (DOJ Circular 59-2020). Always follow up with a hard copy. |
| May I attend personally and argue? | Preliminary investigation is primarily paper-based. Conferences are rare and at the prosecutor’s discretion. |
| What if the complainant amends the complaint? | A substantial amendment restarts the 10-day period for the respondent. |
11. Bottom-line principles
- The 10-day period is strict but not suicidal. Extensions are granted to prevent technical injustice.
- Due process equals completeness of notice. Insist on the entire evidence packet; the period does not run otherwise.
- Silence is fatal. A respondent who neither answers nor asks for time is presumed to waive the right to be heard.
- Substance over form—yet form matters. A late or defective jurat can torpedo an otherwise meritorious defense.
- Use the counter-affidavit to lock in your theory early and deter the filing of an information.
12. Suggested motion template (outline)
Caption Motion for Extension to Submit Counter-Affidavit Grounds: (a) need to obtain CCTV footage from Land Transportation Office; (b) respondent on medical quarantine until (date); attach medical certificate. Prayer: 15-day extension or until (date); no intention to delay; justice and equity. Verification & jurat
13. Disclaimer
This article is informational and not a substitute for personalized legal advice. Always consult a Philippine lawyer for case-specific guidance.
Prepared: 10 May 2025 (Manila time)