Special Penal Laws

Judge P 17-18

1. Probation Law

PROBATION is a disposition under which a defendant, after conviction and sentence, is released
subject to conditions imposed by the court and to the supervision of a probation officer.

PETITIONER is a convicted defendant who files a formal application for probation.

PROBATIONER is a person placed on probation.

PROBATION OFFICER is a person who investigates for the court, makes a referral for probation,
supervises a probationer or both, and performs other related duties as directed.

NOTE: Probation is not an absolute right. It is a mere privilege whose grant rests upon the
discretion of the trial court. Its grant is subject to certain terms and conditions that may be
imposed by the trial court. Having the power to grant the probation, it follows that the trial court
also has the power to order its revocation in a proper case and under proper circumstances.

Purpose

1. To promote the correction and rehabilitation of an offender by providing him with

individualized treatment;
2. To provide an opportunity for the reformation of a penitent offender which might be less
probable if he were to serve a prison sentence; and
3. To prevent the commission of offenses.

When Probation is granted

After conviction and sentencing of a defendant and within the period of perfecting an
appeal.

a. If the defendant has perfected the appeal from the judgment of conviction, no
application for probation shall be entertained or granted.

What if the appeal is for correction of penalty so that the person can qualify under
probation; Colinares Doctrine

In Colinares v. People, petitioner Arnel was guilty of frustrated homicide that imposed a
penalty beyond six (6) years, disqualifying him then for probation. After his appeal, the court
found that he was only liable for attempted homicide with a penalty less than six (6) years.
The court held that Arnel is still capable of applying for probation despite an appeal. The
court believes that the finding of attempted homicide is an original conviction that for the first
time imposes on Arnel a probationable penalty. Had the RTC done Arnel right from the start,
it would have found him guilty of the correct offense and imposed on him the right penalty of
two years and four months maximum. This would have afforded Arnel the right to apply for
probation (Colinares v. People G.R. No. 182748, December 13, 2011).

Colinares doctrine is already embodied in R.A. 10707 which amends Sec. 4 of P.D. 968
stating: No application for probation shall be entertained or granted if the defendant has
perfected the appeal from the judgment of conviction: Provided, That when a judgment of
conviction imposing a non-probationable penalty is appealed or reviewed, and such
judgment is modified through the imposition of a probationable penalty, the defendant shall
 be allowed to apply for probation based on the modified decision before such decision
becomes final. The application for probation based on the modified decision shall be filed in
the trial court where the judgment of conviction imposing a non-probationable penalty was
rendered, or in the trial court where such case has since been re-raffled. In a case involving
several defendants where some have taken further appeal, the other defendants may apply
for probation by submitting a written application and attaching thereto a certified true copy of
the judgment of conviction.

Grant of Probation, Manner and Conditions

RULES ON GRANT OF PROBATION:

Filing of application for probation operates as a waiver of the right to appeal.

If the defendant has perfected an appeal, no application will be granted.
After having convicted and sentenced a defendant, the trial court may suspend the
execution of the sentence, and place the defendant on probation, upon application by the
defendant within the period for perfecting an appeal.
Probation may be granted whether the sentence imposes the penalty of imprisonment or
fine only.
The order granting or denying probation shall not be appealable since probation is not
an absolute right.
Accessory penalties are deemed suspended once probation is granted.
The convict is not immediately placed on probation. There shall be a prior investigation by
the probation officer and a determination by the court.

Conditions in probation:

1. Present himself to his probation officer designated to undertake his supervision at a place
specified in the order within 72 hours from receipt of said order;
2. Report to his probation officer at least once a month at such time and place as specified
by said officer.
3. Other additional conditions that the court may require as listed in Section 10 of PD 968.

Effect of violation of condition:

Probation is cancelled

Criteria of placing an offender on probation

All information relative to the character, antecedents, environment, mental, and physical condition
of the offender

Probation is to be denied upon finding of the court that:

The offender is in need of correctional treatment that can be provided effectively by his
commitment to an institution.
There is undue risk of committing another crime during the probation period.
Probation will depreciate the seriousness of the offense committed.

Disqualified offenders

The benefits of the Decree shall not be extended to those:

Sentenced to serve a maximum term of imprisonment of more than 6 years;

 Convicted of subversion or any crime against the national security or public order;
Previously convicted by final judgment of an offense punished by imprisonment of not less
than 1 month and 1 day and/or a fine not less than P200;
Once placed on probation;
Those who have appealed or were convicted of drug trafficking or drug pushing; and
Convicted of election offenses under the Omnibus Election Code.

Period of probation

TERM OF IMPRISONMENT DURATION

Penalty for crime is not more than 1 year Probation shall not exceed 2 years
Penalty for crime is more than 1 year Probation shall not exceed 6 years
When penalty is a fine only and offender is Probation shall be twice the total number of
made to serve subsidiary imprisonment days of subsidiary imprisonment

Effectivity of Probation

A probation order shall take effect upon its issuance. An issuance is deemed granted when
the court informs offender of the consequences thereof and explain that failure to comply with
any of the conditions prescribed in the probation order or his commission of another offense,
he shall serve the penalty imposed for the offense under which he was placed on probation

Modification in Probation

During the period of probation, the court may revise or modify the conditions or period of
probation upon application of probationer or probation officer. The Court must notify both of
them of the application of the other for opportunity to be heard
Change in the period or conditions of probation requires that the court shall inform in writing
both probation officer and probationer.

Arrest of probationer; Subsequent Disposition

At any time during probation, the court may issue a warrant for the arrest of a probationer for
any serious violation of the conditions of probation.

The probationer, once arrested and detained, shall immediately be brought before the court
for a hearing, which may be informal and summary, of the violation charged. The accused
may be permitted bail

If violation is established, the court may:

Revoke his probation, and thus make him serve the sentence originally imposed, or
Continue his probation and modify its conditions.

NOTE: The court order shall not be subject to appeal.

Termination of Probation; Exception

Probation is not coterminous with its period.

There must be an order issued by the court discharging the probationer. Upon finding that he
has fulfilled the terms and conditions of his probation, the court may order the final discharge
of the probationer. This shall have the following effects:
Case is deemed terminated;
All civil rights lost or suspended are restored; and
Offenders liability for any fine imposed is discharged.
Who are Disqualified for Probation Under Special Laws

COMPREHENSIVE DANGEROUS DRUGS ACT (RA 9165)

Sec. 24 Any person convicted for drug trafficking or pushing under this Act, regardless of
the penalty imposed by the Court, cannot avail of the privilege granted by the Probation Law.

JUVENILE JUSTICE AND WELFARE ACT OF 2006 (RA 9344); ALSO REFER TO CHILD
AND YOUTH WELFARE CODE (PD 603, AS AMENDED)

Under R.A. 9344 (Juvenile Justice and Welfare Act), a minor 15 years (At the time of the
commission of the crime) and below is exempt from criminal liability.

Definition of terms

CHILD IN CONFLICT WITH THE LAW refers to a child who is alleged as, accused of, or
adjudged as, having committed an offense under Philippine laws.

NOTE: If the minor whose age is above 15 but less than 18 acted with discernment, he is
criminally liable subject to undergoing a diversion program.

DISCERNMENT is the mental capacity to fully appreciate the consequences of the unlawful act,
which is shown by the:

Manner the crime was committed; and

Conduct of the offender after its commission.

Presumption: The minor committed the crime without discernment.

Exemption from criminal liability

Under R.A. 9344 a minor over 15 but below 18 who acted without discernment is exempt from
criminal liability.

Juvenile justice and welfare system:

AGE CRIMINAL RESPONSIBILITY/EFFECT

< 15years Absolute irresponsibility, exempting circumstance
* as amended by RA 9344
15years Absolute irresponsibility, exempting circumstance
* as amended by RA 9344
15 < and < 18 Conditional responsibility
Without discernment not criminally liable

When the youthful offender has reached the age of eighteen while in commitment, the
court shall determine whether:

To DISMISS THE CASE, if the youthful offender has behaved properly and has shown his
capability to be a useful member of the community, or
To PRONOUNCE THE JUDGMENT OF CONVICTION, if the conditions mentioned are not
met.
In the latter case, the convicted offender may apply for Probation. In any case, the youthful
offender shall be credited in the service of his sentence with the full time spent in actual
commitment and detention.

NOTE: The final release of a youthful offender, based on good conduct as provided in Art. 196 of
P.D. 603 shall not obliterate his civil liability for damages

2. Art 29 as Amended by EO 214

"Art. 29. Period of preventive imprisonment deducted from term of imprisonment. Offenders
or accused who have undergone preventive imprisonment shall be credited in the service of their
sentence consisting of deprivation of liberty, with the full time during which they have undergone
preventive imprisonment, if the detention prisoner agrees voluntarily in writing to abide by the
same disciplinary rules imposed upon convicted prisoners except in the following cases:

1. When they are recidivists, or have been convicted previously twice or more times or any crime;
and

2. When upon being summoned for the execution of their sentence they have failed to surrender
voluntarily.

If the detention prisoner does not agree to abide by the same disciplinary rules imposed
upon convicted prisoners, he shall be credited in the service of his sentence with four-fifths of
the time during which he has undergone preventive imprisonment.

Whenever an accused has undergone preventive imprisonment for a period equal to or more than
the possible maximum imprisonment of the offense charged to which he may be sentenced and
his case is not yet terminated, he shall be released immediately without prejudice to the
continuation of the trial thereof or the proceeding on appeal, if the same is under review. In case
the maximum penalty to which the accused may be sentenced is destierro, he shall be released
after thirty (30) days of preventive imprisonment."

3. Anti-Arson Law

PUNISHABLE ACTS

SIMPLE ARSON, IF ANY PERSON SETS FIRE:

to the property of another; AND

to his own property under circumstances which expose to danger the life or property of
another (Sec. 1).

DESTRUCTIVE ARSON, IF THE PROPERTY BURNED IS ANY OF THE FOLLOWING

(SPUTE):

Building/s or edifice/s, consequent to an act of burning, or because of simultaneous

burnings;
Any building, devoted to the public in general, regardless of whether the offender had
knowledge that there are persons in said building and whether the building is actually
inhabited or not;
Any building, and any appurtenances thereto, which are devoted to the service of public
utilities;
 Any train or locomotive, ship or vessel, airship or airplane, devoted to transportation or
conveyance, or for public use, entertainment or leisure; AND
Any building the burning of which is for concealing or destroying evidence of another
violation of law, or for concealing bankruptcy or defrauding creditors or to collect from
insurance. (RA 7659, Sec. 10)

OTHER CASES OF ARSONS (G-PRIME):

Any building used as offices of the government or any of its agencies;

Any plantation, farm, pastureland, growing crop, grain field, orchard, bamboo grove or
forest;
Any railway or bus station, airport, wharf or warehouse;
Any inhabited house or dwelling;
Any rice mill, sugar mill, cane mill or mill central; AND
Any industrial establishment, shipyard, oil well or mine shaft, platform or tunnel (Sec. 3).

PRIMA FACIE EVIDENCE OF ARSON (VP-SWIFT):

If a demand for valuable consideration was made before the fire in exchange for the
desistance of the offender or for the safety of the person or property of the victim.
If during the lifetime of the fire insurance policy more than two fires have occurred in the
premises owned or under the control of the offender and/or insured.
If shortly before the fire, a substantial portion of the effects insured and stored in a
building or property had been withdrawn from the premises except in the ordinary course
of business.
If the building or property is insured for substantially more than its actual value at the time
of the issuance of the policy.
If substantial amount of flammable materials is stored within the building not necessary in
the business of the offender nor for household us.
If any contrivance designed to start a fire, or ashes or traces of any of the foregoing are
found in the ruins or premises of the burned building or property.

NOTE: There is no complex crime of arson with homicide. If fire is used to kill a person, then the
crime is murder. But if the main objective is to burn the building and death results therefrom, then
the death is absorbed by the crime of arson. In short, intent is important to make the distinction
(People v. Cedenio, GR No. 93485, June 27, 1994).

4. Anti-Carnapping Law

ELEMENTS OF CARNAPPING

1. Taking, with intent to gain;

2. of a motor vehicle belonging to another;
-without the latters consent;
-by means of violence against or intimidation of persons; or
-by using force upon things.

AGGRAVATING CIRCUMSTANCE WHICH DENIES BAIL

Bail shall be denied when the evidence of guilt against any person charged with carnapping or
when the crime of carnapping is committed:

1. by criminal groups, gangs or syndicates;

 2. by means of violence or intimidation of any person or persons;
3. by means of forced upon things;
4. when the owner, driver, passenger or occupant of the carnapped vehicle is killed or raped
in the course of the carnapping.

PERSONS LIABLE
Any person, including aliens, who violated any of the provisions of this Act;

Juridical person who violates any of the provision of this Act shall be punished
through its president, secretary, members of the board, of any officer who directly
participated; and

Any government official or employee who directly commits the unlawful acts or is
guilty of gross negligence of duty or connives with or permits of the act.
PUNISHABLE ACTS [C2D-ITS]

Carnapping;
Concealment of Carnapping;
Defacing or tampering with the original or registered serial numbers of motor vehicle
engine, engine blocks and chassis;
Identity Transfer of a motor vehicle declared as total wreck;
Transfer of Vehicle Plate without securing authority from LTO; and
Sale of Secondhand Parts of Carnapped Vehicle.

NOTE: To prove the special complex crime of carnapping with homicide, there must be proof not
only of the essential elements of carnapping, but also that it was the original criminal design of
the culprit and the killing was perpetrated in the course of carnapping or on the occasion thereof.
The killing of the victim cannot qualify the carnapping into a special complex crime because the
carnapping was an afterthought when the victims death was already fait accompli. (People v.
Aquino, G.R. No. 201092, 2014)

5. RA 7610

PUNISHABLE ACTS

1. CHILD PROSTITUTION & OTHER SEXUAL ABUSE

a. Children exploited can be male or female, who for money, profit, other consideration or due to
coercion by an adult, is made to indulge in sexual intercourse or lascivious conduct;

Below 18 years of age

Those over but unable to fully take care of themselves or protect themselves
from abuse, neglect, cruelty, exploitation or discriminationdue to physical or mental
disability or condition

b. Any adult who engages in, promotes, facilitates, or induces child prostitution by:
acting as procurer;
inducing a client;
taking advantage or influence or relation to procure a child as prostitute;
threatening or using violence to engage a child as a prostitute;

giving pecuniary benefit or goods to a child with intent to engage in prostitution.

c. Any adult who commits sexual intercourse or lascivious conduct with a child exploited; and
d. Any person who derives profit or advantage, such as the manager or owner of establishment

2. CHILD TRAFFICKING

Any person who trades or deals with children including buying or selling of a child for
money, barter, or other consideration.

3. ATTEMPT TO COMMIT CHILD TRAFFICKING

When a child travels alone to a foreign country without valid reason, clearance from
DSWD, or written permit from parents or guardian;
When a person or institution recruits women or couple to bear children for child
trafficking;
When a doctor, hospital or similar health workers or institutions simulate birth for child
trafficking; and
When a person finds children from low-income families, hospitals, day-cares or child-
caring institutions to offer for child trafficking.

4. OBSCENEPUBLICATIONAND
INDECENT SHOWS

a. Any person who shall:

hire, employ, use, persuade, induce or coerce a child to perform in obscene
exhibitions and indecent shows, live or in video, or model for pornographic materials;
AND

cause the child to sell such materials.

b. A person who is entrusted with the care of the child who causes or allows the above acts to be
done shall also be penalized.

5. EMPLOYMENT OF CHILDREN

Children below 15 may be employed except:

Child works under responsibility of parents or legal guardian where only members of
employers family are employed. Provided that it does not endanger life, safety or
morals and the childs development. Child must have primary and secondary
education.
Child is in public entertainment or information through cinema, theatre, radio, TV is
essential. Employment contract, if possible, with childs approval and the DSWD and:
employer ensures protection, health, safety of child
prevent child exploitation or discrimination
formulate and implement continuing program for training and skills.

6. OTHER ACTS OF ABUSE

a. Any person who shall:

Commit any acts of child abuse, cruelty or exploitation or be responsible for conditions
prejudicial to the childs development;
Keep in his company a minor twelve (12) years or under, or who is ten (10) years his
junior, unless related within the 4th degree;
Induce, deliver, or offer a minor to anyone prohibited by this Act;
 Managers, owners of establishments or any person who allows a person to take along
with him any minor herein described to places of accommodations, residence, etc.;
and
Use, coerce, force or intimidate a child to beg for a living, act as middleman in drug
trafficking, or conduct any illegal activities.

6. VAWC (RA 9262)

VIOLENCE AGAINST WOMEN AND THEIR CHILDREN

Refers to any act or a series of acts committed by any person against a woman who is his wife,
former wife, or against a woman with whom the person has or had a sexual or dating relationship,
or with whom he has a common child, or against her child whether legitimate or illegitimate, within
or without the family abode, which result in or is likely to result in physical, sexual, psychological
harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion,
harassment or arbitrary deprivation of liberty. It includes, but is not limited to, (1) physical, (2)
sexual, (3) psychological and (4) economic violence.

BATTERED WOMAN SYNDROME

Refers to a scientifically defined pattern of psychologically and behavioral symptoms found in

women living in battering relationships as a result of cumulative abuse

(a) Cycle of Violence

i. Tension building phase;

ii. Acute battering incident; and
iii. Tranquil, loving phase (non-violent phase). (People v. Genosa, G.R. No. 1395981, 2004)

(b) Characteristics of the syndrome

i. The woman believes that the violence was her fault;
ii. She has an inability to place the responsibility for the violence elsewhere
iii. She fears for her life and/or her childrens life; and
iv. She has an irrational belief that the abuser is omnipresent and omniscient.

3. BATTERY

Refers to any act of inflicting physical harm upon the woman or her child, resulting to a physical
and psychological or emotional distress.

4. PHYSICAL VIOLENCE

Refers to acts that include bodily or physical harm

5. SEXUAL VIOLENCE

Refers to an act which is sexual in nature, committed against a woman or her child

6. PSYCHOLOGICAL VIOLENCE

Refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim
such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or
humiliation, repeated verbal abuse and mental infidelity. It includes causing or allowing the victim
to witness the physical, sexual or psychological abuse of a member of the family to which the
victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to
unlawful or unwanted deprivation of the right to custody and/or visitation of common children.

7. ECONOMIC ABUSE

Refers to acts that make or attempt to make a woman financially dependent.

8. PROTECTION ORDERS

Refers to Orders issued under this act for the purpose of preventing further acts of violence
against a woman or her child specified in Section 5 of this Act and granting other necessary relief.
The relief granted under a protection order serves the purpose of safeguarding the victim from
further harm, minimizing any disruption in the victim's daily life, and facilitating the opportunity and
ability of the victim to independently regain control over her life. The provisions of the protection
order shall be enforced by law enforcement agencies.

AGAINST WHOM COMMITTED

1. A woman:
a. who is his wife,
b. who is his former wife, or
c. with whom the person has or had a sexual or dating relationship, or
d. with whom he has a common child.

2. The womans child:

a. whether legitimate or illegitimate, within or without the family abode.

The violence committed must result in or is likely to result in physical, sexual, psychological harm
or suffering, or economic abuse including threats of such acts, battery, assault, coercion,
harassment or arbitrary deprivation of liberty. It includes, but is not limited to:

a. Physical Violence refers to acts that include bodily or physical harm;

b. Sexual violence refers to an act which is sexual in nature, committed against a woman or
her child;
c. Psychological violence refers to acts or omissions causing or likely to cause mental or
emotional suffering of the victim; and
d. Economic abuse refers to acts that make or attempt to make a woman financially
dependent.

PUNISHABLE ACTS [IF-PARDS]

1. Attempting, causing or threatening physical harm to the woman or her child;

2. Placing the woman or her child in fear of imminent physical harm;
3. Attempt to or compel the woman or her child to engage in conduct which the woman or
her child has the right to desist.
4. Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling
her actions or decisions
5. Causing or attempting to cause the woman or her child to engage in any sexual activity
which does not constitute rape
6. Engaging in conduct that alarms or causes substantial emotional or psychological
distress to the woman or her child, including but not limited to:
a. Stalking or following the woman or her child in public or private places;
b. Peering in the window or lingering outside the residence of the woman or her child;
c. Entering or remaining in the dwelling or on the property of the woman or her child
against her/his will;
 d. Destroying the property and personal belongings or inflicting harm to animals or pets
of the woman or her child; and
e. Engaging in any form of harassment or violence; and
7. Causing mental or emotional anguish, public ridicule or humiliation to the woman or her
child.

PROTECTION ORDERS

1. BARANGAY PROTECTION ORDER (BPO) Issued by punong barangay, after ex parte

determination of the basis of the application, which orders perpetrator to desist from
committing acts under Section 5 (1) and (2) of this Act.

Effective for fifteen (15) days. The court shall schedule a hearing on the issuance of a
PPO prior to or on the date of the expiration of the TPO.

2. TEMPORARY PROTECTION ORDER (TPO) Issued by the court on the date of filing of
the application after ex parte determination that such order should be issued.

Effective for at least a period of thirty (30) days and may be extended by order of the
court.

3. PERMANENT PROTECTION ORDER (PPO) Issued by the court after notice and
hearing. The court shall schedule a hearing on the issuance of a PPO prior to or on the
date of expiration of the TPO.

Effective until revoked by a court upon application of the person in whose favor the order
was issued.

FILE ENFORCEABLE
EFFECTIVE FOR
WHERE WHERE
B Barangay 15 days Only in the barangay where applicant resides
P where
O APPLICANT
resides

T RTC/Family 30 days, renewable until Anywhere in the Philippines

P Court/MCT PPO is issued
O where the
PETITIONER
resides
P RTC/Family Until revoked by the court Anywhere in the Philippines
P Court/MCT upon application of petitioner
O where the
PETITIONER
resides

WHO MAY FILE PETITION FOR PROTECTION ORDERS

A petition for protection order may be filed by any of the following:

1. Offended party;
2. Parents or guardians of the offended party;
3. Ascendants, descendants or collateral relatives within the fourth civil degree of consanguinity
or affinity;
4. Officers or social workers of the DSWD or social workers of local government units (LGUs);
5. Police officers, preferably those in charge of women and children's desks;
6. Punong Barangay or Barangay Kagawad;
7. Lawyer, counselor, therapist or healthcare provider of the petitioner;
8. At least two (2) concerned responsible citizens of the city or municipality where the violence
against women and their children occurred and who has personal knowledge of the offense
committed.

Notes:
Women may be held liable under the law for lesbian relationships. (Barangay Protection
Order RA 9262: A Primer. Department of Interior and Local Government, National
Barangay Operations Office, 2004.)
Victim-survivors suffering from battered woman syndrome do not incur any criminal
and civil liability notwithstanding the absence of any of the elements for justifying
circumstances of self-defense under the RPC.
While the said provision provides that the offender be related or connected to the victim
by marriage, former marriage, or a sexual or dating relationship, it does not preclude
the application of the principle of conspiracy under the RPC. Hence, parents-in-law
may be punished under the said law. (Go-Tan v. Tan, G.R. No. 168852, 2008).

7. BP 22

ELEMENTS OF SEC. 1, PAR. 1 (Act 1)

Any person makes or draws and issues a check to apply on account for value
At which time, he had knowledge that he does not have sufficient funds in the drawee
bank for the payment of such check in full upon its presentment
The (a) drawee bank dishonors
the check for insufficiency of funds, lack of funds, or account closed; or (b) would have
been dishonoured for the same reason had not the drawer, without any valid reason,
ordered the bank to stop payment.
The payee or holder of the dishonoured check gives a written notice of dishonour and
demand for payment
After receipt of the written notice and demand, refuses or fails to pay the value of the
check within 5 banking days

ELEMENTS OF SEC. 1, PAR. 2 (ACT 2)

Any person makes or draws and issues a check

He had sufficient funds in or credit with the drawee bank
He failed to keep sufficient funds or to maintain a credit to cover the full amount of the
check if presented within 90 days from the date appearing thereon
The drawee bank dishonors the check for such reason
The payee or holder of the dishonored check gives a written notice of dishonour and
demand for payment
After receipt of the written notice and demand, refuses or fails to pay the value of the
check within 5 banking days.

PUNISHABLE ACTS

By making or drawing and issuing a check to apply on account or for value knowing at the
time of issue that the check is not sufficiently funded; and
By having sufficient funds in or credit with the drawee bank but failing to keep sufficient
funds or to maintain; AND
a credit to cover the full amount of the check when presented to the drawee bank within a
period of 90 days (Cueme v. People, G.R. No. 133325, 2000).
 EVIDENCE OF KNOWLEDGE OF INSUFFICIENT FUNDS

The making, drawing and issuance of a check payment of which is refused by the drawee
because of insufficient funds in or credit with such bank, when presented within 90 days
from the date of check, shall be prima facie evidence of knowledge unless such maker or
drawer pays the holder the amount due, or makes arrangement, within 5 banking days
after receiving the notice of dishonor.

DEFENSES AGAINST BP 22

The check was not issued to apply to an account or for value but as a guarantee deposit
(Magno v. CA, G.R. No. 96132, June 26,1992)
The required Notice Of Disallowance (NOD) has not been given. The drawer should be
given NOD to givie him the opprotunity to make good the value of the check within 5
banking days.
The dishonor of the check was not due to insufficieny of funds
The check was presnented for payment beyond 180 days from maturity.
Valid cause to stop payment.
Complainant was informed by issuer beforehand that the account had closed.
The complainant is the actual or potential wrongdoer or he has no more right to encash
payment.

Distinguish Estafa under the RPC and B.P. 22:

Estafa under the RPC Estafa under B.P. 22

The check is issued concurrently and
reciprocally in payment, never for a pre-
existing obligation;
Damage and deceit are elements of the
crime;
Crime is against property;
The drawer and indorser are both liable;
Drawer has 3 days from notice of dishonor to
make good the check; and
Malum in se.
The check can be issued even in payment for a
pre-existing obligation;
Damage or deceit is immaterial;
Crime is against public interest prejudice to the
economy and the banking system;
Only the drawer is liable;
Drawer has 5days from notice of dishonor to
make good the check; and
Malum prohibitum.

Is one still liable for B.P. 22 if he pays the full amount due AFTER the 5 banking days
provided for by the law?

Although payment of the value of the bounced check, if made beyond the 5-day period
provided for in B.P. Blg. 22, would normally not extinguish criminal liability, the aforementioned
cases show that the Court acknowledges the existence of extraordinary cases where, even if all
the elements of the crime or offense are present, the conviction of the accused would prove to be
abhorrent to society's sense of justice. x x x The spirit of the law which, for B.P. Blg. 22, is the
protection of the credibility and stability of the banking system, would not be served by penalizing
people who have evidently made amends for their mistakes and made restitution for damages
even before charges have been filed against them. In effect, the payment of the checks before
the filing of the informations has already attained the purpose of the law. It should be emphasized
as well that payment of the value of the bounced check after the information has been filed in
court would no longer have the effect of exonerating the accused from possible conviction for
violation of B.P. Blg. 22. Since from the commencement of the criminal proceedings in court, there
is no circumstance whatsoever to show that the accused had every intention to mitigate or totally
alleviate the ill effects of his issuance of the unfunded check, then there is no equitable and
compelling reason to preclude his prosecution. In such a case, the letter of the law should be
applied to its full extent. (Lim v. People, G.R. No. 190834, 2014)

NOTE: One can be convicted for estafa and violating BP 22; no double jeopardy. It is expressly
provided in BP 22 that, Prosecution under this Act shall be without prejudice to any liability for
violation of any provision of the RPC. (Nierras v. Dacuycuy, G.R. Nos. 59568-76, 1990)

8. Anti Torture Law (RA 9745)

ELEMENTS TORTURE
1. Any act by which severe physical or mental pain or suffering;
2. Is inflicted by or at the instigation of or with the consent or acquiescence of a person in
authority or his agent;
3. Intentionally inflicted on a person;
4. For the purpose of:

a. Obtaining information or a confession;

b. Punishment for an act he or a third person has committed, or is suspected of having
committed;
c. Intimidation or coercion; and
d. Any reason based on discrimination of any kind.

ACTS OF TORTURE

1. PHYSICAL TORTURE form of treatment or punishment inflicted by a person in authority

upon another in his custody that causes severe pain, exhaustion, disability or dysfunction in
one or more parts of the body.

Examples:

a. Systematic beating, head banging, punching, kicking, striking with truncheon or rifle butt or
other similar objects, and jumping on the stomach;
b. Food deprivation or forcible feeding with spoiled food, animal or human excreta and other
stuff or substances not normally eaten;
c. Electric shock;
d. Cigarette burning; burning by electrically heated rods, hot oil, acid; by the rubbing of pepper
or other chemical substances on mucous membranes, or acids or spices directly on the
wound(s);
e. The submersion of the head in water or water polluted with excrement, urine, vomit and/or
blood until the brink of suffocation;
f. Being tied or forced to assume fixed and stressful bodily position;
g. Rape and sexual abuse, including the insertion of foreign objects into the sex organ or
rectum, or electrical torture of the genitals;
h. Mutilation or amputation of the essential parts of the body such as the genitalia, ear, tongue,
etc.;
i. Dental torture or the forced extraction of the teeth;
j. Pulling out of fingernails;
k. Harmful exposure to the elements such as sunlight and extreme cold;
l. The use of plastic bag and other materials placed over the head to the point of asphyxiation;
m. The use of psychoactive drugs to change the perception, memory, alertness or will of a
person, such as:

i. The administration or drugs to induce confession and/or reduce mental competency;

or
ii. The use of drugs to induce extreme pain or certain symptoms of a disease; and
n. Other analogous acts of physical torture.

2. MENTAL/PSYCHOLOGICAL TORTURE Acts committed by a person in authority or his

agent which are calculated to affect or confuse the mind and/or undermine a person's dignity
and morale.

Examples:

a. Blindfolding;
b. Threatening a person(s) or his/her relative(s) with bodily harm, execution or other wrongful
acts;
c. Confinement in solitary cells or secret detention places;
d. Prolonged interrogation;
e. Preparing a prisoner for a show trial, public display or public humiliation of a detainee or
prisoner;
f. Causing unscheduled transfer of a person deprived of liberty from one place to another,
creating the belief that he/she shall be summarily executed;
g. Maltreating a member/s of a person's family;
h. Causing the torture sessions to be witnessed by the person's family, relatives or any third
party;
i. Denial of sleep/rest;
j. Shame infliction such as stripping the person naked, parading him/her in public places,
shaving the victim's head or putting marks on his/her body against his/her will;
k. Deliberately prohibiting the victim to communicate with any member of his/her family; and
l. Other analogous acts of mental/psychological torture.

ELEMENTS OTHER CRUEL, INHUMAN AND DEGRADING TREATMENT OR PUNISHMENT

(CIDT)1:

1. Deliberate and aggravated treatment or punishment (not enumerated under Sec. 4);
2. Inflicted by person in authority or his agent;
3. Against a person in custody; and
4. Attaining the level of severity sufficient to cause suffering, gross humiliation or debasement to
the latter.

NOTES:
The assessment of the level of severity shall depend on all the circumstances of the case,
including:

1. Duration of the treatment or punishment;

2. Effects, physical and mental; and
3. In some cases: the sex, religion, age and state of health of the victim.

PROHIBITED DETENTION Secret detention places, solitary confinement, incommunicado or

other similar forms of detention, where torture may be carried out with impunity are hereby
prohibited.

NOTES:
The PNP, AFP and other law enforcement agencies concerned shall make an updated list of
all detention centers and facilities under their respective jurisdictions with the corresponding
data on prisoners or detainees incarcerated or detained therein.
This list shall be available to the public at all times and updated by the same agencies every
5 days of the month at the minimum.

1
 Who are Liable Torture and/or CIDT

PRINCIPAL

Who actually participated or induced another in the commission; and

Who cooperated in the execution of the act by previous or simultaneous acts;
Any superior military, police or law enforcement officer or senior government official
Who issued an order to any lower ranking personnel to commit torture for
whatever purpose;
The immediate commanding officer of the unit concerned of the AFP or the immediate
senior public official of the PNP and other law enforcement agencies

For any act or omission, or negligence committed by him that shall have led,
assisted, abetted or allowed, whether directly or indirectly, the commission thereof by his
subordinates; and

He who has knowledge of the commission of torture or CIDT committed by his

subordinates or others within his area of responsibility, and authority to prevent or
investigate the allegations yet did not take or failed to do preventive or corrective actions
whether deliberately or negligently.

ACCOMPLICE
ACCESSORY

Any public officer or employee

if he has knowledge that torture or other CIDT is being committed and without having
participated therein either as principal or accomplice, takes part subsequent to its
commission in any of the following manner:

1) By themselves profiting from or assisting the offender to profit from the

effects of the act of torture or other cruel, inhuman
and degrading treatment or punishment;
By concealing the act of torture or other cruel, inhuman and degrading
treatment or punishment and/or destroying the effects or instruments thereof
in order to prevent its discovery; or

2) By harboring, concealing or assisting in the escape of the principal/s in the

act of torture or other cruel, inhuman and degrading treatment or punishment:
Provided, That the accessory acts are done with the abuse of the official's
public functions.

Note: Torture should be considered a separate and distinct act and cannot be absorbed by any
crime such as homicide.

9. Anti Child Pornography Act (RA 9775)

CHILD refers to:

a person below eighteen (18) years of age or over, but is unable to fully take care of
himself/herself from abuse, neglect, cruelty, exploitation or discrimination because of a
physical or mental disability or condition;
a person regardless of age who is presented, depicted or portrayed as a child as defined
herein; and
 computer-generated, digxitally or manually crafted images or graphics of a person who is
represented or who is made to appear to be a child as defined herein.

CHILD PORNOGRAPHY refers to any public or private representation, by whatever means, of

a child engaged in real or simulated explicit sexual activities or any representation of the sexual
parts of a child for primarily sexual purposes.

CHILD PORNOGRAPHY MATERIALS refers to the means and methods by which child
pornography is carried out:

1. As to form:

Visual depiction not only images of real children but also digital images, computer
images or computer-generated images. [e.g., (i) undeveloped film and videotapes; (ii)
stored data and/or images capable of conversion into a visual image; (iii) photograph,
film, video, picture, digital image or picture, computer image or picture; and (iv)
drawings, cartoons, sculptures or paintings depicting children];
Audio representation of a person who is or is represented as being a child and who is
engaged in or is represented as being engaged in explicit sexual activity, or an audio
representation that advocates, encourages or counsels any sexual activity with
children which is an offense under this Act. (e.g., audio recordings and live audio
transmission conveyed through whatever medium including real-time internet
communications); and
Written text or material that advocates or counsels explicit sexual activity with a child
and whose dominant characteristic is the description, for a sexual purpose, of an
explicit sexual activity with a child.

2. As to content:

It includes representation of a person who is, appears to be, or is represented as being a child,
the dominant characteristic of which is the depiction, for a sexual purpose, of:

the sexual organ or the anal region, or a representation thereof; and

the breasts, or a representation of the breasts, of a female person.

EXPLICIT SEXUAL ACTIVITY includes actual or simulated

sexual intercourse or lascivious act including, but not limited to, contact involving
genital to genital, oral to genital, anal to genital, or oral to anal, whether between
persons of the same or opposite sex;
bestiality;
masturbation;
sadistic or masochistic abuse;
lascivious exhibition of the genitals, buttocks, breasts, pubic area and/or anus; or
use of any object or instrument for lascivious acts.

SYNDICATED CHILD PORNOGRAPHY

If carried out by a group of 3 or more persons conspiring or confederating with one another.

Prohibited Acts

To hire, employ, use, persuade, induce or coerce a child to perform in the creation or
production of any form of child pornography;
To produce, direct, manufacture or create any form of child pornography;
 To publish, offer, transmit, sell, distribute, broadcast, advertise, promote, export or
import any form of child pornography;
To possess any form of child pornography with the intent to sell, distribute, publish, or
broadcast: Provided, that possession of three (3) or more articles of child pornography
of the same form shall be prima facie evidence of the intent to sell, distribute, publish
or broadcast;
To knowingly, willfully and intentionally provide a venue for the commission of
prohibited acts such as, but not limited to, dens, private rooms, cubicles, cinemas,
houses or in establishments purporting to be a legitimate business;
For film distributors, theaters and telecommunication companies, by themselves or in
cooperation with other entities, to distribute any form of child pornography;
For a parent, legal guardian or person having custody or control of a child to
knowingly permit the child to engage, participate or assist in any form of child
pornography;
To engage in the luring or grooming of a child;
To engage in pandering of any form of child pornography;
To willfully access any form of child pornography;
To conspire to commit any of the prohibited acts stated in this section; and
To possess any form of child pornography.

9. VAWC

DEFINITION OF TERMS

1. VIOLENCE AGAINST WOMEN AND THEIR CHILDREN

Refers to any act or a series of acts committed by any person
against: a woman who is his wife, or former wife, or against a woman with whom the person
has or had a sexual or dating relationship, or with whom he has a common child, or against her
child whether legitimate or illegitimate, within or without the family abode
which result in or is likely to result in physical or sexual, or o psychological or economic
violence.

NOTES:
Women may be held liable under the law for lesbian relationships. (Barangay Protection Order
RA 9262: A Primer. Department of Interior and Local Government, National Barangay
Operations Office, 2004.)
While the said provision provides that the offender be related or connected to the victim by
marriage, former marriage, or a sexual or dating relationship, it does not preclude the application
of the principle of conspiracy under the RPC. Hence, parents-in-law may be punished under the
said law. (Go- Tan v. Tan, G.R. No. 168852, 2008).

2. BATTERED WOMAN SYNDROME

Refers to a scientifically defined pattern of psychologically and behavioral symptoms found in
women living in battering relationships as a result of cumulative abuse

(a) Cycle of Violence

i. Tension building phase;
ii. Acute battering incident; and
iii. Tranquil, loving phase (non-violent
phase).

(b) Characteristics of the syndrome

i. The woman believes that the violence was her fault;
ii. She has an inability to place the responsibility for the violence elsewhere
iii. She fears for her life and/or her childrens life; and
iv. She has an irrational belief that the abuser is omnipresent and omniscient.

3. BATTERY
Refers to any act of inflicting physical harm upon the woman or her child, resulting to a physical
and psychological or emotional distress.

4. PHYSICAL VIOLENCE
Refers to acts that include bodily or physical harm

5. SEXUAL VIOLENCE
Refers to an act which is sexual in nature, committed against a woman or her child

6. PSYCHOLOGICAL VIOLENCE
Refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim
such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule
or humiliation, repeated verbal abuse and mental infidelity. It includes causing or allowing the
victim to witness the physical, sexual or psychological abuse of a member of the family to which
the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or
to unlawful or unwanted deprivation of the right to custody and/or visitation of common children.

7. ECONOMIC ABUSE
Refers to acts that make or attempt to make a woman financially dependent.
Ex. Withdrawal of financial support, preventing the victim from engaging in any legitimate
profession, or destroying household property.

8. PROTECTION ORDERS
Refers to Orders issued under this act for the purpose of preventing further acts of violence
against a woman or her child specified in Section 5 of this Act and granting other necessary relief.
The relief granted under a protection order serves the purpose of safeguarding the victim from
further harm, minimizing any disruption in the victim's daily life, and facilitating the opportunity
and ability of the victim to independently regain control over her life.

The provisions of the protection order shall be enforced by law enforcement agencies.

AGAINST WHOM COMMITTED

1. A woman:
a. who is his wife,
b. who is his former wife, or
c. with whom the person has or had a
sexual or dating relationship, or
d. with whom he has a common child.

2. The womans child:

a. whether legitimate or illegitimate, within or without the family abode.

NOTE: Victim-survivors suffering from battered woman syndrome do not incur any criminal and
civil liability notwithstanding the absence of any of the elements for justifying circumstances of
selfdefense under the RPC.

PUNISHABLE ACTS [PARDS]

1. Attempting, causing or threatening physical harm to the woman or her child;
2. Attempt to or compel the woman or her child to engage in conduct which the woman or her
child has the right to desist.
3. Causing or attempting to cause the woman or her child to engage in any sexual activity which
does not constitute rape
4. Engaging in conduct that alarms or causes substantial emotional or psychological distress to
the woman or her child, including but not limited to:
Stalking or following the woman or her child in public or private places;
Peering in the window or lingering outside the residence of the woman or her child;
Entering or remaining in the dwelling or on the property of the woman or her child against
her/his will;
Destroying the property and personal belongings or inflicting harm to animals or pets of the
woman or her child; and
Engaging in any form of harassment or violence;
5. Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child.

PROTECTION ORDERS
1. BARANGAY PROTECTION ORDER
(BPO) Issued by punong barangay, after ex parte determination of the basis of the application,
which orders perpetrator to desist from committing acts under Section 5 (1) and (2) of this
Act. Effective for fifteen (15) days. The court shall schedule a hearing on the issuance of a PPO
prior to or on the date of the expiration of the TPO.
2. TEMPORARY PROTECTION ORDER
(TPO) Issued by the court on the date of filing of the application after ex parte determination
that such order should be issued. Effective for at least a period of 30 days and may be extended
by order of the court.
3. PERMANENT PROTECTION ORDER
(PPO) Issued by the court after notice and hearing. The court shall schedule a hearing on the
issuance of a PPO prior to or on the date of expiration of the TPO. Effective until revoked by a
court upon application of the person in whose favor the order was issued.

WHO MAY FILE PETITION FOR PROTECTION ORDERS

A petition for protection order may be filed by any of the following:
1. Offended party;
2. Parents or guardians of the offended party;
3. Ascendants, descendants or collateral relatives within the fourth civil degree of consanguinity
or affinity;
4. Officers or social workers of the DSWD or social workers of local government units (LGUs);
5. Police officers, preferably those in charge of women and children's desks;
6. Punong Barangay or Barangay Kagawad;
7. Lawyer, counselor, therapist or healthcare provider of the petitioner;
8. At least two (2) concerned responsible citizens of the city or municipality where the violence
against women and their children occurred and who has personal knowledge of the offense
committed.
WHERE TO FILE
Applications for BPOs shall follow rules on venue under Sec. 409 of the 1991 LGC.
Barangay where both the petitioner and respondent resides, if the same; or
Barangay where respondent resides, if different from petitioner. Applications for TPO or PPO
may be filed:
In the Family Court where petitioner resides
In the absence thereof, in the Regional Trial Court, Metropolitan Trial Court, Municipal Trial
Court, or Municipal Circuit Trial Court where petitioner resides.