When to file charges for kidnapping and failure to return a minor

Dear PAO,
My friend is a single mother who has a 9-year-old son. She went to Cebu last month for a seminar. Since her parents are both really old and her son’s father abandoned them a long time ago, she opted to leave her son with her former officemate, because the latter offered to look after her son while she was away. They agreed that my friend will fetch his son from her house upon her return from the seminar.

When my friend came back, she immediately contacted her former officemate who told her that she will bring her son to her work the next day. Unfortunately, her former officemate did not show up. My friend went to her house but she was not there. She again contacted her, but the latter was unwilling to return the child and kept on giving so many excuses.

My friend is now contemplating of filing a complaint against her former officemate. Some people advised her to file a complaint for kidnapping and serious illegal detention. Do you think this is correct? Please advise.
Libby

Dear Libby,
The crime of kidnapping and serious illegal detention is one of the crimes against liberty. It is committed when any private individual kidnaps or detains another, or in any other manner deprives him of his liberty, under any of the following circumstances: (1) If the kidnapping or detention shall have lasted more than three days; (2) If it shall have been committed simulating public authority; (3) If any serious physical injuries shall have been inflicted upon the person kidnapped or detained, or if threats to kill him shall have been made; or (4) If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female or a public officer (Article 267, Revised Penal Code).

In order to hold a person criminally responsible under Article 267 of the penal code, it is imperative to prove that he has taken and has detained another and such act of taking and detention be unlawful or illegal. If, for instance, it cannot be clearly shown that the taking is unlawful, then it cannot be said that the crime of kidnapping is committed.

In the situation you have presented, there is no clear showing that your friend’s son was unlawfully taken from her, for which reason, we cannot recommend the filing of a complaint for kidnapping and serious illegal detention under Article 267 of the same law.

On the contrary, you mentioned that your friend entrusted her son with her former officemate while she was away for a seminar, only that the latter failed and is now seemingly refusing to return the child despite several demands. In that case, we believe that the more appropriate complaint to file is kidnapping and failure to return a minor because Article 270 of the Revised Penal Code specifically provides, “The penalty of reclusion perpetua shall be imposed upon any person who, being entrusted with the custody of a minor person, shall deliberately fail to restore the latter to his parents or guardians.” The case of People of the Philippines vs. Marquez (G.R. No. 181440, April 13, 2011) may serve as a guiding principle:

“x x x This court, in elucidating on the elements of Article 270, stated that while one of the essential elements of this crime is that the offender was entrusted with the custody of the minor, what is actually being punished is not the kidnapping but the deliberate failure of that person to restore the minor to his parents or guardians. As the penalty for such an offense is so severe, the court further explained what “deliberate” as used in Article 270 means: Indeed, the word deliberate as used in Article 270 of the Revised Penal Code must imply something more than mere negligence–it must be premeditated, headstrong, foolishly daring or intentionally and maliciously wrong. x x x”

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Prescription may render falsification raps worthless

Dear PAO,
My mother has considered filing a case against my aunt, her sister, for falsifying a deed of donation. It started when my mother learned that the title to one of their uncle’s pieces of property is already under my aunt’s name. The Registrar of Deeds explained that the transfer was done in view of the deed of donation supposedly executed by their uncle in favor of my aunt.

Their uncle was never married, had no children and passed away only in 2012. My mother believes that such deed was falsified because her uncle never mentioned anything about it, and it is very unlikely that he will give his property to my aunt knowing that he has other nephews and nieces who are more in need. Do you think such case will prosper?

Please advise me on this matter. Thank you and more power.
Eddie

Dear Eddie,
Under Article 171 of our Revised Penal Code, the crime of falsification may only be committed through any of the following acts: (1) Counterfeiting or imitating any handwriting, signature or rubric; (2) Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate; (3) Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them; (4) Making untruthful statements in a narration of facts; (5) Altering true dates; (6) Making any alteration or intercalation in a genuine document which changes its meaning; (7) Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such a copy of a statement contrary to, or different from, that of the genuine original; or (8) Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book.

If the crime of falsification is committed in any public or official document or letter of exchange or any other kind of commercial document by a private individual, the penalty to be imposed is prision correccional in its medium and maximum periods and a fine of not more than Five Thousand Pesos (P5,000.00). (Article 172 [1], Ibid.)

In the situation that you have narrated, it is crucial for your mother to establish, by proof beyond reasonable doubt, that your aunt counterfeited or imitated the handwriting or signature of their uncle, or that she caused it to appear that their uncle participated in the execution of such deed of donation when their uncle did not actually participate, in order for a case for falsification to prosper. Without such valuable evidence, the complaint may simply be dismissed. Thus, your mother must be able to present the original or certified true copy of the deed of donation purportedly executed by her uncle, original specimen signatures and/or handwriting of her uncle, and such other documents that will substantiate the impossibility of improbability of the execution of such document.

Apart therefrom, it is essential for your mother to establish that such crime of falsification has not yet prescribed, for even if your mother has countless pieces of evidence to back up her allegations against your aunt, it may be rendered naught by reason of prescription.

Thus, your mother must institute the criminal complaint within ten (10) years from the execution thereof or from the time that the same was notarized. This is in view of the fact that the imposable penalty is a correctional penalty, and the crime will prescribe in ten (10) years. Note that such prescription commences to run from the day on which the crime is discovered by the offended party, the authorities, or their agents, and will be interrupted by the filing of the complaint or information. It will commence to run again when such proceedings terminate without the accused being convicted or acquitted, or are unjustifiably stopped for any reason not imputable to him. (Articles 90 and 91, Id.)

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Expert opinion needed to prove medical malpractice

Dear PAO,
My wife died in the hospital two days after she gave birth. I knew that there was something wrong because the cause of her death cannot be explained by the attending obstetrician-gynecologist, including the hospital staff from whom I asked for some explanations. I really want to sue them; however, I do not have proofs. Please guide me on what to do.
Dindo

Dear Dindo,
Most cases in medical malpractice or criminal negligence need the testimony of expert witness to prove that malpractice was committed. In Rosit vs Gestuvo (G.R. No. 210445, December 7, 2015), the Supreme Court clearly discussed the necessity of expert testimony to prove medical malpractice including its exemptions:

“To establish medical negligence, this court has held that an expert testimony is generally required to define the standard of behavior by which the court may determine whether the physician has properly performed the requisite duty toward the patient. This is so considering that the requisite degree of skill and care in the treatment of a patient is usually a matter of expert opinion.

Solidum v. People of the Philippines provides an exception. There, the court explained that where the application of the principle of res ipsa loquitur is warranted, an expert testimony may be dispensed with in medical negligence cases:

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitur is availed of by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof of negligence. The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone familiar with the facts. x x x

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the body of the patient after an operation, injuries sustained on a healthy part of the body which was not under, or in the area, of treatment, removal of the wrong part of the body when another part was intended, knocking out a tooth while a patient’s jaw was under anaesthetic for the removal of his tonsils, and loss of an eye while the patient plaintiff was under the influence of anaesthetic, during or following an operation for appendicitis, among others.

We have further held that resort to the doctrine of res ipsa loquitur as an exception to the requirement of an expert testimony in medical negligence cases may be availed of if the following essential requisites are satisfied: ( 1) the accident was of a kind that does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency that caused the injury was under the exclusive control of the person charged; and (3) the injury suffered must not have been due to any voluntary action or contribution of the person injured.”

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Violent ways of collecting debt punishable by law

Dear PAO,
I am indebted to a man who is in the business of lending money. I was not able to pay several monthly instalments, which rendered the whole amount I owed collectible as agreed upon. Because of this, the man barged into our house and started to forcibly take our appliances as payment for the money I owed him. Is this legal?
Ronnel

Dear Ronnel,
There is no question that that man who lent you money has the right to oblige you to pay, considering that the loan he extended to you is due and demandable. There are ways allowed by law on how this man can collect the loan from you. One is to demand payment in person or through a letter. Another is by bringing the matter before the Katarungang Pambarangay, in case both of you live in the same barangay (village), city or municipality. Lastly, he may file a collection case against you in court.

The method which he used in collecting the payment of the loan, however, is not in accordance with law. In fact, it is punishable under the Revised Penal Code of the Philippines, to wit:

“Art. 287. Light coercions. — Any person who, by means of violence, shall seize anything belonging to his debtor for the purpose of applying the same to the payment of the debt, shall suffer the penalty of arresto mayor in its minimum period and a fine equivalent to the value of the thing, but in no case less than 75 pesos.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Taking of naked photos without permission a criminal act

Dear PAO,
Please advise me on what case should I file against the roommate of my boyfriend who took my pictures during my intimate time with my boyfriend. I found out through a friend that my boyfriend’s roommate had my naked pictures which he allegedly took without my consent. He’s also been sending these pictures to his other friends. I hope you can advise me on this matter. Thanks! 
Meg

Dear Meg,
The crime committed by the roommate of your boyfriend who took and distributed your naked pictures without your consent is the violation of Republic Act (R.A.) No. 9995, known as the Anti-Photo and Video Voyeurism Act of 2009.

According to this law, the following acts are considered illegal and punishable by law:

“Section 4. Prohibited Acts. – It is hereby prohibited and declared unlawful for any person:

(a) To take photo or video coverage of a person or group of persons performing sexual act or any similar activity or to capture an image of the private area of a person/s such as the naked or undergarment clad genitals, pubic area, buttocks or female breast without the consent of the person/s involved and under circumstances in which the person/s has/have a reasonable expectation of privacy;

(b) To copy or reproduce, or to cause to be copied or reproduced, such photo or video or recording of sexual act or any similar activity with or without consideration;

(c) To sell or distribute, or cause to be sold or distributed, such photo or video or recording of sexual act, whether it be the original copy or reproduction thereof; or

(d) To publish or broadcast, or cause to be published or broadcast, whether in print or broadcast media, or show or exhibit the photo or video coverage or recordings of such sexual act or any similar activity through VCD/DVD, internet, cellular phones and other similar means or device.

The prohibition under paragraphs (b), (c) and (d) shall apply notwithstanding that consent to record or take photo or video coverage of the same was given by such person/s. Any person who violates this provision shall be liable for photo or video voyeurism as defined herein” (RA No. 9995) (Emphasis supplied).

This aforementioned provision of the law clearly enumerates the different manner by which any person can violate this law. Among those enumerated here is the act of taking pictures of another person in his/her private and intimate moment and distributing them, which is exactly what the roommate of your boyfriend, did to you. As such, it is clear that he may be charged for violating this law and be punished accordingly.

Should the alleged crime committed by the roommate of your boyfriend be proven in Court, he may be punished with an imprisonment of not less than three years but not more than seven years and/or a fine ranging from P100,000 to P500,000 at the discretion of the court.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Candidates can sue for online libel

POLITICIANS or candidates for the upcoming May 9 national and local elections can file charges if their photos or videos posted online were maligned by netizens, according to the Philippine National Police Anti-Cybercrime Group (ACG).

“They can file charges of online libel with us and we have investigators ready to attend to their complaints,” PNP-ACG spokesman, Supt. Jay Guillermo, said in a press briefing on Friday.

PNP spokesman Chief Supt. Wilben Mayor said the online user or owner of the account subject to a complaint can be held liable for online libel.

With the official campaign period set to begin next month, some candidates have already started their campaign pitch on the Internet.

But some of photos of candidates posted online have been maligned and Guillermo said these could be considered libelous in nature.

“They [candidates or politicians] can come to us to file a complaint and we are ready to investigate them,” Guillermo said.

“So far we have not yet received any complaints, but in case there are, the PNP-ACG is ready to entertain them and investigate their complaints. As for the user of social media, they should be very careful in posting or choose the proper words,” he added.

source:  Manila Times

Difference between arbitrary detention and unlawful arrest

Dear PAO,
We want to ask for clarification about the difference between the crime of arbitrary detention and illegal arrest. My neighbor was arrested and detained by our barangay (village) officials for unspecified reason. As a concerned citizen, I find the action as somewhat abusive. What is the proper case to file against these officials? I hope for your helpful response.
Janus

Dear Janus,
To explain and compare the difference between the crime of arbitrary detention and illegal arrest, we shall refer to the Revised Penal Code (RPC) of the Philippines, which provides legal definition of these crimes.

According to Article 124 of the RPC, arbitrary detention is committed by any public officer or employee who without legal grounds detains a person. Under this provision, the commission of a crime or violent insanity or any other ailment requiring the compulsory confinement of the patient in a hospital, shall be considered legal grounds for the detention of any person. (Ibid.)

On the other hand, Article 269 of the law provides that unlawful arrest is committed by any person who, in any case other than those authorized by law, or without reasonable ground, shall arrest or detain another for the purpose of delivering him to the proper authorities.

As seen from the above-cited definitions, arbitrary detention is committed by a public officer while both public officers and private persons can commit the crime of unlawful arrest. The essence of the crime of arbitrary detention is a public officer’s act of detaining a person without any lawful cause. In unlawful arrest, the crime is the act of arresting a person without a legal cause for the purpose of delivering the person arrested to proper authorities. Conversely, it is considered arbitrary detention when the public officer merely detains a person without any intention in bringing the person to the proper authorities.

Therefore in your situation in the barangay, if the person was detained for no lawful reason, the village officials may be liable for arbitrary detention. If your neighbor, however, was arrested illegally for the purpose of bringing him to judicial authorities, then your officials may be liable for unlawful arrest.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net