ARTICLE 13

Mitigating Circumstances

Those mentioned in the preceding chapter, when all the

requisites necessary to justify or to exempt from criminal
liability in the respective cases are not attendant.

The following are mitigating circumstances:

1)

Those mentioned in the preceding chapter, when all

the requisites necessary to justify or to exempt from
criminal liability in the respective cases are not
attendant.

2)

That the offender is under eighteen year of age or

over seventy years. In the case of the minor, he shall
be proceeded against in accordance with the
provisions of Art. 80.

3)

That the offender had no intention to commit so

grave a wrong as that committed.

4)

That sufficient provocation or threat on the part of

the offended party immediately preceded the act.

5)

That the act was committed in the immediate

vindication of a grave offense to the one committing
the felony (delito), his spouse, ascendants, or
relatives by affinity within the same degrees.

6)

That of having acted upon an impulse so powerful

as naturally to have produced passion or
obfuscation.

7)

8)

9)

10)

That the offender had voluntarily surrendered

himself to a person in authority or his agents, or that
he had voluntarily confessed his guilt before the
court prior to the presentation of the evidence for
the prosecution;

CIRCUMSTANCES OF JUSTIFICATION AND EXEMPTION

WHICH MAY GIVE PLACE TO MITIGATION
1) Self-defense
2) Defense of Relatives
3) Defense of Stranger
4) State of Necessity
5) Performance of duty
6) Obedience to the order of the superior
7) Minority above 15 but below 18 years of age
8) Causing injury by mere accident
9) Uncontrollable fear
WHEN ALL THE REQUISITES NECESSARY TO JUSTIFY THE
ACT ARE NOT PRESENT
1)

Incomplete Self-defense, defense of relatives and

defense of stranger
- Unlawful aggression MUST be present
- When 2 of the 3 requisites are present, the case must
not be considered as where an ordinary or generic
mitigating circumstance is present. Rather, it should
be a privileged mitigating circumstance.

2)

Incomplete Justifying circumstance of avoidance of

greater evil or injury
-There must be an evil sought to be prevented
-If all 3 are present, it is a justifying circumstance and
not a mitigating circumstance

3)

Incomplete
Justifying
Circumstance
in
the
performance of a duty
-Re requisites of Performance of a duty under
justifying circumstance:

That the offender is deaf and dumb, blind or

otherwise suffering some physical defect which
thus restricts his means of action, defense, or
communications with his fellow beings.
Such illness of the offender as would diminish the
exercise of the will-power of the offender without
however depriving him of the consciousness of his
acts.
And, finally, any other circumstances of a similar
nature and analogous to those above mentioned.

General Rule:

Exception:

a) That the accused acted in the performance of a

duty or in the lawful exercise of a right or office
b) That the injury caused or the offense committed
be the necessary consequence of the due
performance of such duty or the lawful exercise of
such right or office

-If one is missing, it is a mitigating circumstance

4)

Incomplete Justifying Circumstance of obedience to

an order

WHEN ALL THE REQUISITES NECESSARY TO EXEMPT

FROM CRIMINAL LIABILITY ARE NOT ATTENDANT
1)

Incomplete exempting circumstance of minority over

15 and under 18 years of age
-To be exempt from criminal liability under RA No.
9344, 2 conditions must be present:
a) Offender is over 15 and under 18 years of age
b) That he does not act with discernment

- If minor acted with discernment, he is entitled only

to a mitigating circumstance
2)

Incomplete exempting circumstance of accident

4 requisites that must be present to exempt one
from criminal liability:
1)
2)
3)
4)

Children in conflict with the law shall undergo

diversion programs without undergoing court
proceedings subject to the following conditions:
a)

A person is performing a lawful act

With due care
He causes an injury to another by mere accident
Without fault or intention of causing it

3)

If 2nd requisite and 1st part of the 4th requisite are

absent, the case will fall under Article 365 which
punishes a felony or imprudence
In effect, there is a mitigating circumstance
because the penalty is lower than that provided
for intentional felony
If the 1st requisite and the 2nd part of the 4th
requisite are absent, because the person
committed an unlawful act and had the intention
of causing injury, it will be an intentional felony.
The 2nd and the 3rd requisites will not be present
either - there is not even a mitigating
circumstance
Incomplete exempting circumstance of uncontrollable
fear
-2 requisites that must be present to exempt one from
criminal liability:
1)

2)

1)
2)
3)

b)

That the threat which caused the fear was of an

evil greater than, or at least equal to that which he
was required to commit
That it promised an evil of such gravity
and
imminence that an ordinary person would have
succumbed to it (uncontrollable).

If only 1 is present, merely a mitigating

circumstance

That the offender is under eighteen year of age or over

seventy years. In the case of the minor, he shall be proceeded
against in accordance with the provisions of Art. 80
Basis: Diminution of intelligence, a condition of
voluntariness
DIVERSION
Refers to an alternative, child-appropriate process
of determining the responsibility and treatment
of a child in conflict with the law on the basis of
his social, cultural, economic, psychological, or
educational background without resulting to
court proceedings
DIVERSION PROGRAM
Refers to the program that the child in conflict
with the law is required to undergo after he/she
is found responsible for an offense without
resorting to formal court proceedings
SYSTEM OF DIVERSION

Where the imposable penalty for the crime

committed is not more than 6 years
imprisonment,
- the law enforcement office of Punong
Barangay with the assistance of the local
social welfare and development officer or
other members of the Local Councils for the
Protection of Children (LCPC) established in
all level of local government pursuant to RA
No. 9344 shall:

c)

Conduct mediation
Family conferencing and conciliation
Where appropriate, conduct indigenous
modes of conflict resolution

in accordance with the best interest of the

child with a view to accomplishing the
objectives of restorative justice and the
formulation of a diversion program.
- The child and his family shall be present in
these activities
In victimless crimes where the penalty is
not more than 6 years of imprisonment,

The
local
social
welfare
and
development officer shall meet with the
child and his parents or guardians for
the development of the appropriate
diversion and rehabilitation program, in
coordination with the Barangay Council
for the Protection of Children (BCPC)
created pursuant to RA No. 9344
Where the imposable penalty for the crime
committed exceeds 6 years imprisonment,

Diversion measures may be resorted to

only by the court

Conferencing, Mediation And Conciliation:

If during conciliation, mediation and

conferencing, the child voluntarily
admits to the commission of the act, a
diversion program shall be developed
when appropriate and desirable as
determined by Section 30
Such admission shall not be used
against the child in any subsequent
judicial, quasi-judicial or administrative
proceedings
The program shall be effective and
binding when accepted by all the parties
concerned and appropriate authorities
The
local
Social
Welfare
and
Development Officer shall supervise the
implementation
of
the
diversion
program

The proceedings shall be completed

within 45 days
The period of prescription of the offense
shall be suspended until the completion
of the diversion proceedings but not to
exceed 45 days
The child present himself to the
competent authorities that imposed the
Diversion Program at least once a
month for reporting and evaluation of
the effectiveness of the program
Failure to comply with its terms and
conditions shall give the offended party
an option to institute appropriate legal
action
The period of prescription of the offense
shall be suspended during the
effectivity of the diversion program but
not exceeding a period of 2 years.
May be conducted at the Katarungang
Pambarangay, the police investigation or
the inquest or preliminary investigation
stage and all levels and phases of the
proceedings including judicial levels

INTENTION
An internal act
Judged by the:
a)
proportion of the means employed by him
to the evil produced by his act
b) Judged by the blow if it was aimed at a vital
part of the body
HOW TO DETERMINE IF ACCUSED INTENDED THE
WRONG COMMITTED
1)
2)
3)
4)

Weapon used
Part of the body injured
Injury inflicted
Manner it is inflicted

That sufficient provocation or threat on the part of the

offended party immediately preceded the act
Basis: Diminution of intelligence and intent
PROVOCATION
Any unjust or improper conduct or act of the
offended party, capable of exciting, inciting or
irritating any one

When there is no diversion program,

The Punong Barangay handling the case

shall, within 3 days from determination
of the absence of jurisdiction over the
case of termination of the diversion
proceeding as the case may be, forward
the records of the case to the law
enforcement officer, prosecutor or the
appropriate court, as the case may be

Requisites:
1) That the provocation must be sufficient
-adequate enough to excite a person to
commit a wrong and must be proportionate
to its gravity
-sufficiency
depends
upon
the
act
constituting the provocation, the social
standing of the person provoked, the place
and the time when the provocation was
made
2) That it must originate from the offended
party
3) That the provocation must be immediate to
the act (to the commission of the crime by
the person who is provoked
-there should not be any interval of time

OFFENDER OVER 70 YEARS OF AGE

Not
included
in
privileged
mitigating
circumstances
Merely an Ordinary mitigating circumstance
That the offender had no intention to commit so grave a
wrong as that committed
Basis: Intent is diminished which is an element of
voluntariness in intentional felony
Can only be invoked when there is a notable and
evident disproportion between the means
employed to execute the criminal act and its
consequences
Not applicable when offender employed brute
force
It is the intention of the offender at the moment
when he is committing the crime which is
considered
Not applicable to felonies by negligence
Applicable only to offenses resulting in physical
injuries or material harm

That the act was committed in the immediate vindication of a

grave offense to the one committing the felony (delito), his
spouse, ascendants, or relatives by affinity within the same
degrees
Basis: Diminution of the conditions of
voluntariness
The provocation must be proportionate to the
damage caused by the act and adequate to stir
one to its commission
Grave abuse must be directed to the accused
Vindication of a grave offense incompatible with
passion of obfuscation
REQUISITES

1)

2)

That there be a grave offense done to the one

committing the felony, his spouse, ascendants,
descendants, legitimate, natural or adopted brothers
or sisters, or relatives by affinity within the same
degrees
That the felony is committed in vindication of such
grave offense. A lapse of time is allowed between the
vindication and the doing of the grave offense

LAPSE OF TIME
The word immediate in the Spanish Text is not
the correct translation
The Spanish text uses Proxima (Proximate)
Allowed between the grave offense and the
vindication
PROVOCATION
Made directly only to the person committing the
felony
The cause that brought about the provocation
need not b a grave offense
It is necessary that the provocation or threat
immediately preceded the act
VINDICATION
The grave offense may be committed against the
offenders relatives mentioned by the law
The offended party must have done a grave
offense to the offender or his relatives mentioned
by the law
The vindication of the grave offense may be
proximate, which admits of an interval time
between the grave offense done by the offended
party and the commission of the crime by the
accused
Greater leniency because it concerns to the honor
of the person, an offense which is more worthy of
consideration than mere spite against the one
giving the provocation or threat
BASIS TO DETERMINE GRAVITY OF OFFENSE
VINDICATION
1) Social standing of the person
2) The place and time when insult was made

IN

That of having acted upon an impulse so powerful as

naturally to have produced passion or obfuscation
passion and obfuscation is mitigating because
when there are causes naturally producing in a
person powerful excitement, he loses his reason
and self-control, thereby diminishing the exercise
of his will power
Paragraph requires that:
a) That the accused acted upon an impulse
b) The impulse must be so powerful that it
naturally produced passion or obfuscation
in him
Basis: The offender who acts with passion or
obfuscation suffers a diminution of his
intelligence and intent

The crime committed must be the result of a

sudden impulse of a natural and uncontrollable
fury
The crime committed by the accused must be
provoked by unjust or improper acts of the
injured party
Exercise of a right or fulfillment of a duty is not a
proper source of passion or obfuscation
The act must be sufficient to produce such a
condition of mind
The offender must act under the impulse of
special motives
The case producing passion or obfuscation must
come from the offended party
Provocation and obfuscation arising from one
and the same cause should be treated as only one
mitigating circumstance

VINDICATION OF GRAVE OFFENSE & PASSION AND

OBFUSCATION
General rule: cannot co-exist
Exception: when there are other facts closely
connected
Vindication
and obfuscation
cannot
be
considered when the person attacked is not the
one who gave cause therefor

RULE FOR THE APPLICATION OF THIS PARAGRAPH

There is mitigating circumstance when:
1) The act is committed in a spirit of lawfulness
2) The act is NOT committed in a spirit of
revenge
*It should not come from a spirit of revenge,
anger or resentment

TREACHERY & PASSION AND OBFUSCATION

NOT compatible
In passion of obfuscation, the offender loses his
reason and self-control
In Treachery (aggravating circumstance), the
mode of attack must be consciously adopted

REQUISITES
1) That there be an act, both unlawful and sufficient to
produce such a condition of mind

LACK OF INTENTION TO COMMIT SO GRAVE A WRONG

& PASSION AND OBFUSCATION
Compatible

2)

-crime committed by the accused must be provoked by prior,

unjust or improper acts of the injured party
- If the cause of the loss of self-control is trivial and slight,
the obfuscation is not mitigating

That said act which produced the obfuscation was not

far removed from the commission of the crime by a
considerable length of time, during which the
perpetrator might recover his normal equanimity
-

NOTES

No passion or obfuscation after 24 hours, or several

hours or half an hour
Reason is that the act producing the obfuscation must
not be far removed from the commission of the crime
by a considerable length of time, during which the
accused might have recovered his normal equanimity
The crime committed by the accused must be the result
of a sudden impulse of natural and uncontrollable fury
(not planned)

EVIDENT
PRE
MEDITATION
&
PASSION
AND
OBFUSCATION
Cannot co-exist
This is because the essence of pre meditation of
the execution of the criminal act must be
preceded by calm thought and reflection upon
the resolution to carry out the criminal intent
during the space of time sufficient to arrive at a
composed judgment
PASSION AND OBFUSCATION v IRRESISTIBLE FORCE
1)
Passion & obfuscation:
mitigating circumstance
Irresistible force:
exempting circumstance
2)
Passion & obfuscation:

cannot give rise to an irresistible force bc

Irresistible force:
Requires physical force

3)
-

Passion & obfuscation:

Is in the offender himself
Irresistible force:
Comes from a third party

Passion & obfuscation:

Comes from lawful sentiments
Irresistible force:
Unlawful

4)

PASSION AND OBFUSCATION v PROVOCATION

1)
Passion & obfuscation:
Produced by an impulse which may be caused
by provocation
Provocation:
Comes from the injured party
2)
Passion & obfuscation:
The offense which engenders perturbation of the
mind need not be immediate. It is only required
that the influence thereof lasts until the moment
of the crime is committed
Provocation:
Must immediately precede the commission of the
crime
3)
Passion & obfuscation:
Effect is loss of reason and self-control on the part
of the offender
Provocation:
Comes from a third party
4)
Passion & obfuscation:

Comes from lawful sentiments

Provocation:
Unlawful
That the offender had voluntarily surrendered himself to a
person in authority or his agents, or that he had voluntarily
confessed his guilt before the court prior to the presentation
of the evidence for the prosecution;

TWO MITIGATING CIRCUMSTANCE MENTIONED IN THE

PARAGRAPH
1) Voluntary surrender to a person in authority of his
agents
2) Voluntary confession of guilt before the court prior to
the presentation of evidence for the prosecution
*Although included in the same paragraph, when both the
mitigating circumstances are present, they should have the
effect of 2 INDEPENDENT mitigating circumstances.
*If any of them must mitigate the penalty to a certain
extent, when both are present, they should produce this
effect to a greater extent
REQUISITES OF VOLUNTARY SURRENDER
1) That the offender had not been actually arrested
2) That the offender surrendered himself to a person in
authority or to the latters agent
3) That the surrender was voluntary
REQUISITE OF VOLUNTARINESS
Must be spontaneous in such a manner that it
shows the interest of the accused to surrender
unconditionally to the authorities, either because
he acknowledged his guilt or because he wishes
to save them the trouble and expenses necessarily
incurred in his search and capture