Rule on Precautionary Hold Departure Order
Prior to the issuance of the Rule on Precautionary Hold Departure Order, there was no mechanism to bar persons suspected of committing crimes from flying out of the country to avoid prosecution, until a case shall have been filed with the court. To apply for a Hold Departure Order, a criminal case should already be pending before the Regional Trial Court (RTC), and an order should be given by the RTC, directing the Bureau of Immigration to prevent the departure of the person/s named therein. To address this gap, the Supreme Court approved A.M. No. 18-07-05-SC, or the Rule on Precautionary Hold Departure Order. The Rule was approved on 7 August 2018.
What is a Precautionary HDO (PHDO)?
It is an order in writing, issued by a court, commanding the Bureau of Immigration (BI) to prevent any attempt by a person suspected of a crime to depart from the Philippines. It is issued ex parte in cases involving crimes where:
- the minimum penalty is at least 6 years and 1 day; or
- when the offender is a foreigner regardless of the imposable penalty
How is this different from an HDO?
While a criminal case should be pending before the Regional Trial Court before an HDO can be applied for, a PHDO can be secured despite the fact that the case has not yet been filed before the court, and is still pending preliminary investigation.
How is a PHDO secured?
Upon motion by a private complainant in a criminal complaint filed before the city or provincial prosecutor; and upon a preliminary determination by the prosecutor of probable cause based on the complaint and its attachments, the prosecutor may then apply for a PHDO with any RTC, within whose territorial jurisdiction the alleged crime was committed.
For compelling reasons, it may be filed in any RTC within the judicial region where the alleged crime was committed. RTCs of Manila, QC, Cebu, Iloilo, Davao, and CDO may also act upon applications filed by the prosecutor, based on complaints instituted by the NBI, regardless where the alleged crime was committed.
The application made by the prosecutor with the RTC shall include a copy of the complaint-affidavit, and, if available, information on the personal details, passport number and photograph of the respondent.
The judge shall personally examine the applicant and the witnesses, under oath, through searching questions and answers in writing.
The court shall furnish the BI with a duly certified copy of the PHDO within 24 hours from issuance.
What are the grounds for its issuance?
determination by a judge that:
- Probable cause exists; and,
- There is a high probability that the respondent will depart from the Philippines to evade arrest and the prosecution of the crime.
How does the result of the Preliminary Investigation (PI) affect the PHDO?
- If the prosecutor resolves to dismiss the complaint after PI – the respondent may use this as a ground for the lifting of the PHDO with the RTC.
- If the prosecutor finds probable cause and files the information – the case with the RTC which issued the PHDO, shall be consolidated with the court where the information is filed.
How can a respondent apply for the temporary lifting of the PHDO?
respondent may file a verified motion before the RTC which issued the
PHDO for its temporary lifting, on the ground that, based on the
complaint-affidavit or evidence that he/she may present:
- there is doubt that probable cause exists; or,
- he/she is not a flight risk.
- Provided, that the respondent posts a bond in an amount to be determined by the court;
- Provided, further, that the lifting shall be without prejudice to the resolution of the PI.