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Ortega Notes Criminal Law II

Ortega Notes Criminal Law II

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Good reviewer in Criminal law I. :)
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Published by: Anthony Rupac Escasinas on Nov 07, 2012
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1
Book IICrimes and Penalties
TITLE I. CRIMES AGAINST NATIONAL SECURITYAND THE LAW OF NATIONSCrimes against national security
 1. Treason (Art. 114);2. Conspiracy and proposal to commit treason (Art.115);3. Misprision of treason (Art. 116); and4. Espionage (Art. 117).
Crimes against the law of nations
 1. Inciting to war or giving motives for reprisals (Art.118);2. Violation of neutrality (Art. 119);3. Corresponding with hostile country (Art. 120);4. Flight to enemy's country (Art. 121);5. Piracy in general and mutiny on the high seas (Art.122).The crimes under this title can be prosecuted even if thecriminal act or acts were committed outside thePhilippine territorial jurisdiction. However, prosecutioncan proceed only if the offender is within Philippineterritory or brought to the Philippines pursuant to anextradition treaty. This is one of the instances where theRevised Penal Code may be given extra-territorialapplication under Article 2 (5) thereof. In the case of crimes against the law of nations, the offender can beprosecuted whenever he may be found because thecrimes are regarded as committed against humanity ingeneral.Almost all of these are crimes committed in times of war,except the following, which can be committed in times of peace:(1) Espionage, under Article 114
This is alsocovered by Commonwealth Act No. 616 whichpunishes conspiracy to commit espionage. Thismay be committed both in times of war and intimes of peace.(2) Inciting to War or Giving Motives for Reprisals,under Article 118
This can be committed evenif the Philippines is not a participant. Exposingthe Filipinos or their properties because theoffender performed an unauthorized act, likethose who recruit Filipinos to participate in thegulf war. If they involve themselves to the war,this crime is committed. Relevant in the cases of Flor Contemplacion or Abner Afuang, the policeofficer who stepped on a Singaporean flag.(3) Violation of Neutrality, under Article 119
ThePhilippines is not a party to a war but there is awar going on. This may be committed in thelight of the Middle East war.
Article 114. Treason
Elements1. Offender is a Filipino or resident alien;2. THERE IS A WAR IN WHICH THE PHILIPPINES ISINVOLVED;3. Offender either
 A. LEVIES WAR AGAINST THE GOVERNMENT; ORb. adheres to the enemies, giving them aid orcomfort within the Philippines or elsewhereRequirements of levying war
 
1.
 
Actual assembling of men;2.
 
To execute a treasonable design by force;3.
 
Intent is to deliver the country in whole or in part tothe enemy; and4.
 
Collaboration with foreign enemy or some foreignsovereignTwo ways of proving treason1. Testimony of at least two witnesses to the same overtact; or2. Confession of accused in open court.
Article 115. Conspiracy and Proposal to CommitTreason
Elements of conspiracy to commit treason1. There is a war in which the Philippines is involved;2. At least two persons come to an agreement to
 a. levy war against the government; orb. adhere to the enemies, giving them aid orcomfort;3. They decide to commit it.Elements of proposal to commit treason1. There is a war in which the Philippines is involved;2. At least one person decides to
 A. LEVY WAR AGAINST THE GOVERNMENT; ORb. adhere to the enemies, giving them aid orcomfort;3. He proposes its execution to some other persons.
Article 116. Misprision of Treason
Elements1.
 
Offender owes allegiance to the government, and not aforeigner;2.
 
He has knowledge of conspiracy to commit treasonagainst the government;3.
 
He conceals or does not disclose and make known thesame as soon as possible to the governor or fiscal of the province in which he resides, or the mayor or fiscalof the city in which he resides.
While in treason, even aliens can commit said crimebecause of the amendment to the article, no suchamendment was made in misprision of treason
. Misprisionof treason is a crime that may be committed only bycitizens of the Philippines.
The essence of the crime is that there are persons whoconspire to commit treason and the offender knew this and failed to make the necessary report to the government within the earliest possible time.
What is required is toreport it as soon as possible. The criminal liability arises if the treasonous activity was still at the conspiratorial stage.Because if the treason already erupted into an overt act,the implication is that the government is already aware of it. There is no need to report the same. This is a felony byomission although committed with dolo, not with culpa.The persons mentioned in Article 116 are not limited tomayor, fiscal or governor. Any person in authority havingequivalent jurisdiction, like a provincial commander, willalready negate criminal liability.Whether the conspirators are parents or children, and theones who learn the conspiracy is a parent or child, they arerequired to report the same. The reason is that althoughblood is thicker than water so to speak, when it comes tosecurity of the state, blood relationship is alwayssubservient to national security. Article 20 does not applyhere because the persons found liable for this crime arenot considered accessories; they are treated as principals.In the 1994 bar examination, a problem was given withrespect to misprision of treason. The text of the provisionsimply refers to a conspiracy to overthrow the government.The examiner failed to note that this crime can only becommitted in times of war. The conspiracy adverted tomust be treasonous in character. In the problem given, itwas rebellion. A conspiracy to overthrow the government is
 
 
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a crime of rebellion because there is no war. Under theRevised Penal Code, there is no crime of misprision of rebellion.
Article 117. Espionage
Acts punished1. By entering, without authority therefore, a warship,fort or naval or military establishment or reservationto obtain any information, plans, photograph or otherdata of a confidential nature relative to the defenseof the Philippines;Elements
 
a. Offender enters any of the places mentioned;b. He has no authority therefore;c. His purpose is to obtain information, plans,photographs or other data of a confidentialnature relative to the defense of the Philippines.2. By disclosing to the representative of a foreign nationthe contents of the articles, data or informationreferred to in paragraph 1 of Article 117, which hehad in his possession by reason of the public officehe holds.Elementsa. Offender is a public officer;b. He has in his possession the articles, data orinformation referred to in paragraph 1 of Article117, by reason of the public office he holds;c. He discloses their contents to a representative oa foreign nation.
Commonwealth Act No. 616
An Act to PunishEspionage and Other Offenses against NationalSecurity
Acts punished1. Unlawfully obtaining or permitting to be obtainedinformation affecting national defense;2. Unlawful disclosing of information affecting nationaldefense;3. Disloyal acts or words in times of peace;4. Disloyal acts or words in times of war;5. Conspiracy to violate preceding sections; and6. Harboring or concealing violators of law.
Article 118. Inciting to War or Giving Motives forReprisals
Elements1.
 
Offender performs unlawful or unauthorized acts;2.
 
The acts provoke or give occasion for
 a. a war involving or liable to involve thePhilippines; orb. exposure of Filipino citizens to reprisals on theirpersons or property.
Article 119. Violation of Neutrality
Elements1.
 
There is a war in which the Philippines is notinvolved;2.
 
There is a regulation issued by a competent authorityto enforce neutrality;3.
 
Offender violates the regulation.When we say national security, it should be interpretedas including rebellion, sedition and subversion. TheRevised Penal Code does not treat rebellion, sedition andsubversion as crimes against national security, but moreof crimes against public order because during the timethat the Penal Code was enacted, rebellion was carriedout only with bolos and spears; hence, national securitywas not really threatened. Now, the threat of rebellion orinternal wars is serious as a national threat.
Article 120. Correspondence with Hostile Country
Elements1. It is in time of war in which the Philippines isinvolved;2. Offender makes correspondence with an enemycountry or territory occupied by enemy troops;3. The correspondence is either
 a. prohibited by the government;b. carried on in ciphers or conventional signs; orc. containing notice or information which might beuseful to the enemy.
Article 121. Flight to Enemy's Country
Elements1. There is a war in which the Philippines is involved;2. Offender must be owing allegiance to the government;3. Offender attempts to flee or go to enemy country;4. Going to the enemy country is prohibited bycompetent authority.In crimes against the law of nations, the offenders can beprosecuted anywhere in the world because these crimesare considered as against humanity in general, like piracyand mutiny. Crimes against national security can be triedonly in the Philippines, as there is a need to bring theoffender here before he can be made to suffer theconsequences of the law. The acts against nationalsecurity may be committed abroad and still be punishableunder our law, but it can not be tried under foreign law.
Article 122. Piracy in general and Mutiny on theHigh Seas or in Philippine Waters
Acts punished as piracy1. Attacking or seizing a vessel on the high seas or inPhilippine waters;2. Seizing in the vessel while on the high seas or inPhilippine waters the whole or part of its cargo, itsequipment or personal belongings of its complement orpassengers.Elements of piracy1.
 
The vessel is on the high seas or Philippine waters;2.
 
Offenders are neither members of its complement norpassengers of the vessel;3.
 
Offenders either
 a. attack or seize a vessel on the high seas or inPhilippine waters; orb. seize in the vessel while on the high seas or inPhilippine waters the whole or part of its cargo, itsequipment or personal belongings of itscomplement or passengers;4. There is intent to gain.Originally, the crimes of piracy and mutinycan only be committed in the high seas,that is, outside Philippine territorialwaters. But in August 1974,
Presidential Decree No. 532
(The Anti-Piracy and Anti-Highway Robbery Law of 1974) wasissued, punishing piracy, but not mutiny,in Philippine territorial waters. Thus cameabout two kinds of piracy: (1) that whichis punished under the Revised Penal Codeif committed in the high seas; and (2)that which is punished under PresidentialDecree No. 532 if committed in Philippineterritorial waters.Amending Article 122, Republic Act No.7659 included therein piracy in Philippinewaters, thus, pro tanto supersedingPresidential Decree No. 532. Asamended, the article now punishes piracy,as well as mutiny, whether committed inthe high seas or in Philippine territorialwaters, and the penalty has beenincreased to reclusion perpetua fromreclusion temporal.But while under Presidential Decree No.532, piracy in Philippine waters could becommitted by any person, including apassenger or member of the complementof a vessel, under the amended article,piracy can only be committed by a personwho is not a passenger nor member of the
 
 
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complement of the vessel irrespective of venue. So if a passenger or complementof the vessel commits acts of robbery inthe high seas, the crime is robbery, notpiracy.
Note, however, that in Section 4 of Presidential Decree No. 532, the act of aiding pirates or abetting piracy is penalized as a crime distinct from piracy.
Said section penalizes anyperson who knowingly and in anymanner aids or protects pirates, such asgiving them information about themovement of the police or other peaceofficers of the government, or acquiresor receives property taken by suchpirates, or in any manner derives anybenefit therefrom; or who directly orindirectly abets the commission of piracy. Also, it is expressly provided inthe same section that the offender shallbe considered as an accomplice of theprincipal offenders and punished inaccordance with the Revised Penal Code.This provision of Presidential Decree No.532 with respect to piracy in Philippinewater has not been incorporated in theRevised Penal Code. Neither may it beconsidered repealed by Republic Act No.7659 since there is nothing in theamendatory law is inconsistent with saidsection. Apparently, there is still thecrime of abetting piracy in Philippinewaters under Presidential Decree No.532.Considering that the essence of piracy is one of robbery,any taking in a vessel with force upon things or withviolence or intimidation against person is employed willalways be piracy. It cannot co-exist with the crime of robbery. Robbery, therefore, cannot be committed onboard a vessel. But if the taking is without violence orintimidation on persons of force upon things, the crime of piracy cannot be committed, but only theft.PIRACY is a crime against humanity (hostes humanesgeneris)
Questions & Answers
 Could theft be committed on board a vessel?
 
Yes. The essence of piracy is one of robbery.
Mutiny is the unlawful resistance to a superior officer, or the raising of commotions and disturbances aboard a shipagainst the authority of its commander.
Elements of mutiny1.
 
The vessel is on the high seas or Philippine waters;2.
 
Offenders are either members of its complement, orpassengers of the vessel;3.
 
Offenders either
 a. attack or seize the vessel; orb. seize the whole or part of the cargo, itsequipment, or personal belongings of the crew orpassengers.
Distinction between mutiny and piracy 
(1) As to offendersMutiny is committed by members of thecomplement or the passengers of the vessel.Piracy is committed by persons who are notmembers of the complement or the passengersof the vessel.(2) As to criminal intentIn mutiny, there is no criminal intent.In piracy, the criminal intent is for gain.
Article 123. Qualified Piracy
Elements1.
 
The vessel is on the high seas or Philippine waters;2.
 
Offenders may or may not be members of itscomplement, or passengers of the vessel;3.
 
Offenders either
 a. attack or seize the vessel; orb. seize the whole or part of the cargo, itsequipment., or personal belongings of the crew orpassengers;4.
 
The preceding were committed under any of thefollowing circumstances:a. whenever they have seized a vessel by boarding orfiring upon the same;b. whenever the pirates have abandoned theirvictims without means of saving themselves; orc. whenever the crime is accompanied by murder,homicide, physical injuries or rape.If any of the circumstances in Article 123 is present, piracyis qualified. Take note of the specific crimes involve innumber 4 c (murder, homicide, physical injuries or rape).When any of these crimes accompany piracy, there is nocomplex crime. Instead, there is only one crimecommitted
qualified piracy. Murder, rape, homicide,physical injuries are mere circumstances qualifying piracyand cannot be punished as separate crimes, nor can theybe complexed with piracy.Although in Article 123 merely refers to qualified piracy,there is also the crime of qualified mutiny. Mutiny isqualified under the following circumstances:(1) When the offenders abandoned the victims withoutmeans of saving themselves; or(2) When the mutiny is accompanied by rape, murder,homicide, or physical injuries.Note that the first circumstance which qualifies piracy doesnot apply to mutiny.
Republic Act No. 6235 (The Anti Hi-Jacking Law)
Anti hi-jacking is another kind of piracy which is committedin an aircraft. In other countries, this crime is known asaircraft piracy.Four situations governed by anti hi-jacking law:(1) usurping or seizing control of an aircraft of Philippine registry while it is in flight, compellingthe pilots thereof to change the course ordestination of the aircraft;(2) usurping or seizing control of an aircraft of foreignregistry while within Philippine territory,compelling the pilots thereof to land in any part of Philippine territory;(3) carrying or loading on board an aircraft operatingas a public utility passenger aircraft in thePhilippines, any flammable, corrosive, explosive,or poisonous substance; and(4) loading, shipping, or transporting on board a cargoaircraft operating as a public utility in thePhilippines, any flammable, corrosive, explosive,or poisonous substance if this was done not inaccordance with the rules and regulations set andpromulgated by the Air Transportation Office onthis matter.Between numbers 1 and 2, the point of distinction iswhether the aircraft is of Philippine registry or foreignregistry. The common bar question on this law usuallyinvolves number 1. The important thing is that before theanti hi-jacking law can apply, the aircraft must be in flight.If not in flight, whatever crimes committed shall begoverned by the Revised Penal Code. The law makes adistinction between aircraft of a foreign registry and of Philippine registry. If the aircraft subject of the hi-jack isof Philippine registry, it should be in flight at the time of the hi-jacking. Otherwise, the anti hi-jacking law will not

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