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Archive for the ‘Criminal Law’ Category

The Crime of Offending Religious Feelings

Posted by lexforiphilippines on October 6, 2010

A man who, garbed as national hero, Jose Rizal, stood up near the altar of a Catholic church during a prayer service, shouting that the church should stop interfering in government affairs and holding a sign that read “Damaso” (referring to Fr. Damaso, the antagonist in Rizal’s novel “Noli Me Tangere”), was arrested for “Offending the Religious Feelings.”

The public’s fascination was not just with the theatricality with which the man made his plea for the Catholic Church to steer clear of the Reproductive Health Bill.  That the man was charged with the novel-sounding crime of “Offending religious feelings” also sparked the public’s interest.

The crime is not as common as estafa, theft or murder, but it has been in the statute books for a long time.  Under Article 133 of the Revised Penal Code, the crime of “Offending the Religious Feelings” is committed when anyone, while in a place devoted to religious worship or during the celebration of any religious ceremony, performs acts notoriously offensive to the feelings of the faithful.  The penalty for this crime is arresto mayor in its maximum period (from 4 months and 1 day to 6 months) to prision correccional in its minimum period (from 6 months and 1 day to 2 years and 4 months).

The law, indeed, is old, but it is still in force and is clearly experiencing a rebirth.

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Posted in Criminal Law, Law School, Laws and Implementing Rules | Tagged: , , | Leave a Comment »

Republic Act No. 9745 – Anti-Torture Act of 2009

Posted by lexforiphilippines on August 24, 2010

A video supposedly showing a crime suspect being tortured while in police custody recently grabbed the headlines.  The picture brings to mind Republic Act No. 9745 (“R.A. 9745”) or the “Anti-Torture Act of 2009,” which was enacted on 10 November 2009 specifically to curb and punish torture (physical and mental) and other cruel, inhuman and degrading treatment or punishment inflicted by a person in authority or agent of a person in authority upon another person in his/her custody.

Under R.A. 9745:

  • A victim of torture has the right:

(a)    To have an impartial investigation by the Commission on Human Rights (CHR) and other concerned government agencies such as the Department of Justice (DOJ), the Public Attorney’s Office (PAO), the Philippine National Police (PNP), the National Bureau of Investigation (NBI) and the Armed Forces of the Philippines (AFP);

(b)   To have the investigation of the torture completed within a maximum period 60 working days from the time a complaint for torture is filed, and to have any appeal resolved within the same period;

(c)    To have sufficient government protection for himself/herself and other persons involved in the investigation/prosecution such as his/her lawyer, witnesses and relatives, against all forms of harassment, threat and/or intimidation as a consequence of the filing of the complaint for torture or the presentation of evidence for such complaint;

(d)   To be given sufficient protection in the manner by which he/she testifies and presents evidence in any forum to avoid further trauma; and

(e)    To claim for compensation under Republic Act No. 7309,* which should in no case be less than P10,000.00, and under other existing laws and regulations.

  • Any confession, admission or statement obtained as a result of torture is inadmissible in evidence in any proceeding, except if the same is used as evidence against a person or persons accused of committing torture.
  • Secret detention places, solitary confinement, incommunicado or other similar forms of detention, where torture may be carried out with impunity, are prohibited.  The PNP, AFP and other law enforcement agencies, as well as their regional offices, are required to submit to the CHR and make available to the public at all times, a list of all detention centers and facilities under their respective jurisdictions/areas with the corresponding data on the prisoners or detainees incarcerated or detained in such centers/facilities, such as names, date of arrest and incarceration, and the crime or offense committed.  The list should be updated within the first 5 days of every month at the minimum.  Failure to comply with this requirement is punishable under R.A. 9745.
  • The penalty is most severe (reclusion perpetua) if the torture results in death or mutilation, or is committed against children, or is committed with rape, or other forms of sexual abuse that make the victim insane, imbecile, impotent or maimed for life.
  • Torture as a crime will not absorb or will not be absorbed by any other crime or felony committed as a consequence, or as a means in the conduct or commission, of such torture.  Torture will be treated as a separate and independent criminal act, the penalties for which will be imposed without prejudice to any other criminal liability under domestic and international laws.
  • Persons who have committed any act of torture will not benefit from any special amnesty law or similar measures that will have the effect of exempting them from any criminal proceedings and sanctions.
  • Every person arrested, detained or under custodial investigation is given the right:

(a)    Before and after interrogation, to be informed of his/her right to demand physical examination by an independent and competent doctor of his/her own choice. If he/she cannot afford the services of his/her own doctor, he/she will be provided by the State with a competent and independent doctor to conduct the physical examination.  If the person arrested is female, she will be attended to preferably by a female doctor.

(b)   To immediate access to proper and adequate medical treatment.

These rights may be waived by the person arrested, detained or under custodial investigation, provided the waiver is made knowingly and voluntarily, in writing, and executed in the presence and assistance of his/her counsel.

  • The State shall endeavor to provide the victim with psychological evaluation if available under the circumstances.
  • The physical examination and/or psychological evaluation of the victim should be contained in a medical report, duly signed by the attending physician and detailing the victim’s medical history and the physician’s findings, including the nature and probable cause of the victim’s injury, pain, disease and/or trauma, and the approximate time and date when it/they was/were sustained.  The report is to be attached to the custodial investigation report and considered a public document.
  • No person will be expelled, returned or extradited to another State where there are substantial grounds to believe that such person will be in danger of being subjected to torture, as determined by the Secretary of the Department of Foreign Affairs (DFA) and the Secretary of the DOJ, in coordination with the Chairperson of the CHR.

* An Act Creating a Board of Claims under the Department of Justice for Victims of Unjust Imprisonment or Detention and Victims of Violent Crimes and for other purposes.

Click on Laws under Tools to see the other salient features of R.A. 9745.

Posted in constitutional Law, Criminal Law, Laws and Implementing Rules, Notes | Tagged: , , | 1 Comment »

Venue for Libel Cases on the Internet

Posted by lexforiphilippines on July 5, 2010

Under Article 360 of the Revised Penal Code, as amended by Republic Act No. 4363, libel cases where the complainant is a private individual is either (1) where the complainant actually resides at the time of the commission of the offense; or (2) where the alleged defamatory article was printed and first published.  If the private complainant opts for the second, the Information (formal indictment) must specifically state where the libelous article was printed and first published.  Previously, the case could be filed where the article was published or circulated, regardless of where it was written or printed.  The purpose of the amendment was to prevent indiscriminate filing of libel cases in far-flung areas in order to harass or intimidate the accused.

If the libelous article appears on a website, there is no way of finding out the location of its printing and first publication.  It is not enough for the complainant to lay the venue where the article was accessed, as this will open the floodgates to the libel suit being filed in all other locations where the website is also accessed or capable of being accessed, and spawn the very ills the amendment sought to prevent.  At any rate, the private complainant has the option to file the case in his/her place of residence, which will not necessitate finding out exactly where the libelous matter was printed and first published. So said the Supreme Court in the case of Bonifacio, et al. vs. RTC of Makati, Br. 129 (G.R. 184800; 5 May 2010).

Click on Tools for a Digest of the case of Bonifacio, et al. vs. RTC of Makati, Br. 129 (G.R. 184800; 5 May 2010).

Posted in Cases, Civil Law, Criminal Law, Law School, Remedial Law | Tagged: , , , | Leave a Comment »