DETENTION (124) DELAY IN DELIVERY OF DETAINED (125) Detention is illegal

from the beginning

Detention is legal in the beginning, but illegality starts from the expiration of the

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specified periods without

the persons detained having been delivered to the proper judicial authority

Article 126. Delaying Release Acts punished

1. Delaying the performance of a judicial or executive order for the release of a prisoner;

2. Unduly delaying the service of the notice of such order to said prisoner;

3. Unduly delaying the proceedings upon any petition for the liberation of such person.

Elements

1. Offender is a public officer or employee;

2. There is a judicial or executive order for the release of a prisoner or detention prisoner, or that there is a proceeding upon a petition for the liberation of such person;

3. Offender without good reason delays –

a. the service of the notice of such order to the prisoner;

b. the performance of such judicial or executive order for the release of the prisoner; or c. the proceedings upon a petition for the

release of such person.

 Wardens and jailers are the persons most likely to violate this provision.

 The penalty depends on the length of the delay i.e. 12, 18, or 36 hours.

Persons Authorized to Order the Release of A Person in Custody of the Law

1. The courts when

a. Detained person posts bail b. Case is dismissed

c. Accused is acquitted

d. Petition for habeas corpus is filed and the court finds no valid reason to detain him. 2. Board of Pardon and Parole Upon the grant of

Parole

3. Office of the President upon the grant of Presidential Pardon or Amnesty

4. Commissioner of the Board of Immigration and Deportation

5. Office of the prosecutor with respect to cases they are acting on if

a. No probable cause b. Arrest is not proper

c. There is meritorious ground (humanitarian reasons)

Article 127. Expulsion

Acts punished

1. Expelling a person from the Philippines;or 2. Compelling a person to change his residence. Elements

1. Offender is a public officer or employee; 2. He either –

a. expels any person from the Philippines; or b. compels a person to change residence; 3. Offender is not authorized to do so by law.

 The right violated is the liberty of abode and of changing the same.

 The essence of this crime is coercion but the specific crime is ―expulsion‖ when committed by a public officer. If committed by a private person, the crime is gravecoercion.

 In Villavicencio v. Lukban, 39 Phil 778, the mayor of the City of Manila wanted to make the city free from prostitution. He ordered certain prostitutes to be transferred to Davao, without observing due processes since they have not been charged with any crime at all. It was held that the crime committed was expulsion.

 Only the court by final judgment can order a person to change his residence.

 Only the Chief Executive has the power to deport undesirable aliens

 Crime does not include expulsion of undesirable aliens (PERSONA NON GRATA), destierro or when sent to prison

 If a Filipino who, after voluntarily leaving the country, is illegally refused re-entry is considered a victim of being forced to change address

 Threat to national security is not a valid ground to expel or to compel one to change address

Q: Certain aliens were arrested and they were just put on the first aircraft which brought them to the country so that they may be out without due process of law. Was there a crime committed?

A: Yes. Expulsion.

Q: If a Filipino citizen is sent out of the country, what crime is committed?

A: Grave coercion, not expulsion, because a Filipino

cannot be deported. This crime refers only to aliens. Violation of Domicile

CASTLE DOCTRINE – there is a penal sanction for the violation of a person‘s right to privacy of his home or of the sanctity of his dwelling. A man‘s house is his castle which the law protects.

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Domicile is to be given a broader meaning as that of a

dwelling.

Forms/Kinds of Violation of Domicile 1. Violation of Domicile Proper (Art 128)

2. Search Warrant Maliciously Obtained and Abuse in the Service of those Legally Obtained (Art 129) 3. Searching Domicile without Witnesses (Art 130)

Article 128. Violation of Domicile Acts punished

1. Entering any dwelling against the will of the owner thereof;

Lack of consent – not sufficient as the law requires that the offender‘s entry must be over the owner‘s objection.

Against the will of owner – presupposes opposition or prohibition by the owner, whether express or implied and not merely absent of consent (e.g. door is closed though it is not locked, oral objection of the owner, owner physically blocks entry).

If the door is open and the accused entered, this mode is not committed.

Owner need not be present when entry was made. It includes surreptitious entry through an opening not intended for the purpose.

Justified Trespass Even without Court Order a. to prevent serious injury to himself, to an

occupant of a dwelling or a third person b. to stop an ongoing crime

c. to arrest a criminal in a hot pursuit d. to render service to humanity or justice e. to seize or search the effects of a crime If the offender who enters the dwelling against the will of the owner thereof is a private individual, the crime committed is trespass to dwelling (Art 280)

2. Searching papers or other effects found therein without the previous consent of such owner; Mere lack of consent – sufficient.

Even if he is welcome in the dwelling, it does not mean he has permission to search.

Search is not just by looking through a room by the physical acts of opening rooms, opening of drawers, or handling or lifting of things and articles.

There are instances when search without a warrant is considered valid, and, therefore, the seizure of any evidence done is also valid. Outside of these, search would be invalid and the objects seized would not be admissible in evidence.

(1) Search made incidental to a valid arrest; (2) Where the search was made on a moving

vehicle or vessel such that the exigency of the situation prevents the searching officer from securing a search warrant;

(3) When the article seized is within plain view of the officer making the seizure without making a search therefore.

If the offender is a private person, the crime would be unjust vexation or theft if he takes things away. When a public officer searched a person ―outside his dwelling‖ without a search warrant and such person is not legally arrested for an offense, the crime committed by the public officer is either: o grave coercion if violence or

intimidation is used (Art 286), or

o unjust vexation if there is no violence or intimidation (Art 287)

Public officer without a search warrant cannot lawfully enter the dwelling against the will of the owner, even if he knew that someone in that dwelling is in lawful possession of opium.

3. Refusing to leave the premises, after having surreptitiously entered said dwelling and after having been required to leave the same

Entry must be done surreptitiously; without this, crime may be unjust vexation.

The order to leave must be given promptly. The act of entertaining ratifies surreptitious entry. If the surreptitious entry had been made through an opening not intended for that purpose, offender is liable under the first mode since it is an entry over the implied objection of the inhabitant. Inhabitant may be the lawful possessor/occupant using the premises as his dwelling.

Common elements

1. Offender is a public officer or employee;

2. He is not authorized by judicial order to enter the dwelling or to make a search therein for papers or other effects. (like search warrant, warrant of arrest, writ of execution, writ of attachment). Circumstances qualifying the offense (Special Aggravating Circumstances)

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2. If any papers or effects not constituting evidence

of a crime are not returned immediately after the search made by offender.

Article 129. Search Warrants Maliciously Obtained, and Abuse in the Service of Those

Legally Obtained Acts punished

1. Procuring a search warrant without just cause; Elements

1. Offender is a public officer or employee; 2. He procures a search warrant;

3. There is no just cause.

2. Exceeding his authority or by using unnecessary severity in executing a search warrant legally procured.

Elements

1. Offender is a public officer or employee; 2. He has legally procured a search warrant; 3. He exceeds his authority or uses unnecessary

severity in executing the same.

SEARCH WARRANT – is an order in writing issued in the name of the People of the Philippines, signed by the judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court.

Requisites for the Issuance of Search Warrant A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally be the judge after examining under oath or affirmation of the complainant and the witnesses he may produce and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines.

 Search warrant is valid for 10 days from its date of issue.

 The search is limited to what is described in the warrant, all details must be set forth with particularity.

 Example of a warrant maliciously obtained: the applicant has no personal knowledge of the facts but makes it appear that he does; applicant concocts a story in that he has ulterior motives in securing a search warrant.

The act of executing an affidavit in support of the application or of testifying falsely before the judge are separate offenses of perjury.

 Examples of abuse in service of warrant:

o X, owner, was handcuffed while search was going on

o Tank was used to ram gate prior to announcement that a search will be made o Persons who were not respondents were

searched

o Searching places not specified in the warrant o Seizing articles not mentioned in the warrant. The destruction of property or injuries arising from the violence or threat are separate offenses.  An exception to the necessity of a search warrant

is the right of search and seizure as an incident to a lawful arrest.

 Plain view doctrine is inapplicable if the officer was not legally entitled to be in the place where the effects where found. Since the entry was illegal, plain view doctrine does not apply.

Article 130. Searching Domicile without Witnesses

Elements

1. Offender is a public officer or employee;

2. He is armed with search warrant legally procured; 3. He searches the domicile, papers or other

belongings of any person;

4. The owner, or any members of his family, or two witnesses residing in the same locality are not present.

 Order of those who must witness the search a. Homeowner

b. Members of the family of sufficient age and discretion

c. Responsible members of the community  Validity of the search warrant can be questioned

only in two courts: where issued or where the case is pending. The latter is preferred for objective determination.

 Art 130 does not apply to searches of vehicles or other means of transportation.

 Search warrant under the Tariff and Customs Code does not include dwelling house.

Article 131. Prohibition, Interruption, and Dissolution of Peaceful Meetings Elements

1. Offender is a public officer or employee; 2. He performs any of the following acts:

a. prohibiting or interrupting, without legal ground, the holding of a peaceful meeting, or dissolving the same (e.g. denial of permit in arbitrary manner);

b. hindering any person from joining any lawful association, or from attending any of its meetings;

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c. prohibiting or hindering any person from

addressing, either alone or together with others, any petition to the authorities for the correction of abuses or redress of grievances. Acts punished

1. Prohibiting or interrupting, without legal grounds, the holding of a peaceful meeting, or by dissolving the same.

Grounds for prohibiting, interrupting or dissolving a meeting:

1. Lack of a required permit where the meeting is to be held in a public place where peace and order will be affected, or when others are prevented from using the place. Example: meeting in a street, or bridge or sidewalk The requirement of a permit is only for purposes of regulation but not as an exercise of prohibitory powers. Thus, the refusal to issue a permit without any valid ground constitutes prohibition of a peaceful meeting. 2. When the meeting constitutes a trespass to

private property

3, When the meeting is not peaceful as when it becomes chaotic or the participants are enjoined to do acts of destruction of property or acts of violence , or when the meeting becomes seditious

 The accused officer must be a stranger, not a participant in the meeting; otherwise his act may either be unjust vexation or tumultuous disturbance.

 Dissolution is usually in the form of dispersal or by the arrest of the leaders or the speakers  The government has a right to require a

permit before any gathering could be made. Any meeting without a permit is a proceeding in violation of the law. That being true, a meeting may be prohibited, interrupted, or dissolved without violating Article 131 of the Revised Penal Code.

 If the permit is denied arbitrarily, Article 131 is violated. If the officer would not give the permit unless the meeting is held in a particular place which he dictates defeats the exercise of the right to peaceably assemble, Article 131 is violated.

 At the beginning, it may happen that the assembly is lawful and peaceful. If in the course of the assembly the participants commit illegal acts like oral defamation or inciting to sedition, a public officer or law enforcer can stop or dissolve the meeting. The person talking on a prohibited subject at a

public meeting contrary to agreement that no speaker should touch on politics may be stopped. The permit given is not a license to commit a crime.

 But stopping the speaker who was attacking certain churches in public meeting is a violation of this article

 Those holding peaceful meetings must comply with local ordinances. Example: Ordinance requires permits for meetings in public places. But if a police stops a meeting in a private place because there‘s no permit, officer is liable for stopping the meeting.

2. Hindering any person from joining any peaceful meeting, such as by threatening to arrest them, unless the meeting is that of criminal associations. Example: joining the meeting of the CPP is not prohibited, but that of the NPA is prohibited.. 3. Prohibiting or hindering another from addressing a

Petition to the authorities for redress of grievances. Provided the address is done in an orderly manner and there is no damage to public peace or order.  If the offender is a private individual, the crime

is disturbance of public order

 Interrupting and dissolving a meeting of the municipal council by a public officer is a crime against the legislative body and not punishable under this article.

Criteria to determine whether Article 131 would be violated:

(1) Dangerous tendency rule (2) Clear and present danger rule

Distinctions between prohibition, interruption, or dissolution of peaceful meetings under Article 131, and tumults and other disturbances, under Article 153

(1) As to the participation of the public officer

In Article 131, the public officer is not a participant. As far as the gathering is concerned, the public officer is a third party.

If the public officer is a participant of the assembly and he prohibits, interrupts, or dissolves the same, Article 153 is violated if the same is conducted in a public place.

(2) As to the essence of the crime

In Article 131, the offender must be a public officer and, without any legal ground, he prohibits, interrupts, or dissolves a peaceful meeting or assembly to prevent the offended party from exercising his freedom of speech and that of the

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assembly to petition a grievance against the

government.

In Article 153, the offender need not be a public officer. The essence of the crime is that of creating a serious disturbance of any sort in a public office, public building or even a private place where a public function is being held.

NOTE: The Provisions of Article 131 should be read in conjunction with B.P. 880 otherwise known as the Public Assembly Act of 1985.

B.P. 880: AN ACT ENSURING THE FREE EXERCISE BY THE PEOPLE OF THEIR RIGHT PEACEABLY TO ASSEMBLE AND PETITION THE

GOVERNMENT AND FOR OTHER PURPOSES

In document crim_law (Page 126-131)