Dispute over money should first be heard by barangay

Dear PAO,
My brother’s officemate borrowed money from him amounting to P50,000. They agreed that the monthly interest will be at P500 per month and that this amount should be settled on or before January 2015. Unfortunately, until now my brother’s officemate has not paid even a single centavo. He demanded from him several times already but he kept avoiding my brother. He no longer answers my brother’s calls or text messages. Now, my brother filed a report before our Barangay and considers filing a complaint for swindling. Do you think this is the proper remedy? Please advise.
Berna

Dear Berna,
Swindling, or more commonly termed as estafa, is a criminal offense which is punishable under Article 315 of the Revised Penal Code (RPC). In order for an accused to be held responsible for the commission of this crime, it is essential to prove that damage or prejudice, which is capable of pecuniary estimation, was brought upon the private complainant. However, it is equally important to establish that the accused defrauded the private complainant, which may be committed either: (a) with unfaithfulness or abuse of confidence; (b) by means of false pretenses or fraudulent acts; or (c) through fraudulent means. (Id.)

In the situation of your brother which you have relayed to us, we cannot categorically conclude that he was particularly defrauded by his officemate as there is no clear showing that there was unfaithfulness or abuse of confidence on the part of the creditor. Neither is there any showing that false pretenses or fraudulent acts were employed to obtain the money. Rather, what is clear from the facts that you have shared is that your brother lent his officemate P50,000, with the agreement that the said amount will earn a monthly interest of P500, the settlement thereof is due on January 2015, and the same has not been completely paid up to this point.

Accordingly, we believe that filing a complaint for swindling is not the proper recourse. The elements of the crime is wanting, thus pursuing the complaint may only result in the dismissal thereof.

Nonetheless, your brother may opt to file a small claims case against his officemate. Said action must be filed before the Metropolitan Trial Court, Municipal Trial Court or Municipal Circuit Trial Court of the place where he resides. (Section 2 in relation to Section 4, Rules of Procedure for Small Claims Cases as Amended, SC En Banc Resolution dated October 27, 2009 in Administrative Matter No. 08-8-7-SC) However, if they are living within the same city or municipality, he must first bring the matter before the Barangay. This is pursuant to Section 412 of Republic Act (R.A.) No. 7610 which states: “(a) No complaint, petition, action or proceeding involving any matter within the authority of the lupon shall be filed or instituted directly in court, unless there has been a confrontation between the parties before the lupon chairman or the pangkat, and that no conciliation or settlement has been reached as certified by the lupon or pangkat secretary or unless the settlement has been repudiated by the parties thereto. 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

Jail escapees not eligible for parole

Dear PAO,
A former neighbor asked for my help because her son has been in jail for several years already, although there was a time that he escaped from detention and was merely arrested again. She would like to know if her son can be qualified to apply for parole. I hope you can enlighten us. Thank you.
Lupi

Dear Lupi,
Parole is a form of conditional release of a person who is detained in a penal confinement or correctional institution. In order to be eligible for parole, the detainee or prisoner must (1) be confined in prison or detention facility to serve an indeterminate sentence, the maximum period of which must exceed one year, pursuant to a final judgment of conviction which has become final and executory, and (2) have served the minimum period of his sentence (Rule 2.1, Rules on Parole, 2006 Revised Manual, Board of Pardons and Parole).

However, not all detention prisoners who possess the abovementioned qualifications will be granted parole. For instance, in the situation of your neighbor’s son, although he may have been convicted with finality, serving an indeterminate sentence, the maximum period of which must exceed one year, and has served the minimum period thereof, he may still be disqualified from applying for parole on account of the fact that he has escaped from confinement. This is in consonance with Rule 2.2 of the Rules on Parole which provides that: “Pursuant to, among others, Section 2 of Act No. 4103, as amended, otherwise known as the Indeterminate Sentence Law, said Act shall not apply, and parole shall not be granted, to the following prisoners: x x x (f) Those who escaped from confinement or evaded sentence; x x x”

Apart from the foregoing, the following are likewise disqualified from applying for parole: those convicted of an offense punished with death penalty, reclusion perpetua or life imprisonment; those convicted of treason, conspiracy or proposal to commit treason or espionage; those convicted of misprision of treason, rebellion, sedition or coup d’ etat; those convicted of piracy or mutiny on the high seas or Philippine waters; those who are habitual delinquents; those granted conditional pardon but violated the terms thereof; those suffering from mental disorder as certified by a government psychiatrist/psychologist; those whose conviction is on appeal or has not yet become final and executory; those who have pending criminal cases; or national prisoners serving sentence in a municipal city, district or provincial jail, unless confinement therein is in good faith or due to circumstances beyond the prisoner’s control (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

Know your rights on inquest investigations

Someone calls you and in a panicked voice tells you that he has been caught, arrested without a warrant of arrest, and is now detained at the police station. He asks you what he should do.

The first thing to know is the time when he was arrested and then detained, and the number of hours that has lapsed since then.

This is important because if the person has been detained for far too long without the complainant or the police authorities having immediately lodged a complaint against him and initiate an investigation, then he should be released. Article 125 of the Revised Penal Code deems it unlawful, and thus penalizes, delay in the delivery of detained persons to the proper judicial authorities (12 hours for crimes or offenses punishable by light penalties, 18 hours for crimes or offenses punishable by correctional penalties or their equivalent, and 36 hours for crimes or offenses punishable by capital penalties or their equivalent).

If however the person was subjected to an inquest investigation before the lapse of any of these periods, then some important matters must be taken into account.

An inquest investigation is an informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest. The conduct of such an investigation covers all offenses under the Revised Penal Code and special laws, rules and regulations, unless a minor is involved, in which case only those offenses punishable by imprisonment of not less than six years and one day are covered. Note that no inquest investigation may be conducted involving a minor without first referring the arrested or detained minor to the local branch of the Department of Social Welfare and Development for proper disposition pursuant to Republic Act 9344, otherwise known as the Juvenile Justice and Welfare Act of 2006.

Inquest investigations may be conducted at any time of the week, but only during the hours of the designated assignments of the assigned inquest prosecutors. They may be conducted at the police station or at the office of the inquest prosecutor.

The person’s presence is generally required during the inquest proceedings, except if he is in the hospital, detained in a place under maximum security, if his presence will involve maximum security risk, or if his presence is not feasible by reason of age, health, sex and other similar factors.

The inquest proceedings start upon receipt by the inquest prosecutor of the affidavit of arrest executed by the arresting officer, the investigation report, the sworn statements of the complainant and the witnesses, and other supporting pieces of evidence. The documents may be subscribed before another prosecutor or a notary public, but should be re-affirmed before the inquest prosecutor.

When the documents are insufficient to establish probable cause to file a case in court, the inquest prosecutor shall direct the arresting officers to complete it, but still within the period prescribed under Article 125 of the Revised Penal Code. Failure to do so constrains the inquest prosecutor to order the release of the detained person.

After determining the completeness of documents, the inquest prosecutor will then determine if the arrest without a warrant was validly effected, by summarily examining the arresting officers on the circumstances surrounding the arrest or apprehension. Should he find that the warrantless arrest was not validly effected, he will have to recommend the release of the detained person and prepare a resolution with the reasons for the action taken. This is without prejudice to serving a subpoena or notice of preliminary investigation on the detained person if the evidence on hand warrants the conduct of a regular preliminary investigation.

On the other hand, should the inquest prosecutor find that the arrest was properly effected, then he asks the detained person if he desires to avail himself of a preliminary investigation. If he does, the detained person, with the assistance of a lawyer, will be made to execute a waiver of the provisions of Article 125 of the Revised Penal Code, and a preliminary investigation will then be conducted. The investigation must be terminated within 15 days from when it started.

If the detained person does not wish to avail himself of a preliminary investigation, then the inquest prosecutor will continue with the proceedings, and will issue a resolution either dismissing the complaint or finding probable cause and recommending the filing of information with the court.

The detained person may apply for and post bail before the filing of the information, without being deemed to have waived his right to a preliminary investigation. In such a case, the inquest prosecutor will simply issue a certification that the person arrested is being charged with an offense in an inquest proceeding and specifying the recommended bail. Also, if there are recovered articles belonging to the detained person, he may file a written request for the release of the articles and file this with the inquest prosecutor.


source:  Businessworld's Jessa G. Wong-Cantano is a Senior Associate at ACCRALAW Davao Branch. jgwong@accralaw.com

Lawmakers seek to criminalize corruption in private sector

TWO party-list lawmakers are pushing to criminalize corruption in the private sector. House Bill (HB) 5298, authored by Cibac Party-list Reps. Sherwin Tugna and Cinchona Cruz-Gonzales, seeks to amend Republic Act (A) 3019, otherwise known as “The Anti-Graft and Corrupt Practices Act.”

HB 5298, now pending at the Committee on Civil Service, seeks the amendment of Section 1 of RA 3019 on the Statement of Policy so that “The Philippine government also recognizes that to fight the evils of graft and corruption, all citizens must participate and take part in it. Consequently, graft and corrupt practices or any act which may lead thereto occurring in the private sector and only between and among persons working for and transacting with the private sector must be repressed and penalized.”

It also amends Section 2 of RA 3019 by redefining the following terms: advantage; agent; entertainment; government; individual, person; principal; public officer and receiving any advantage.

It seeks to add a new Section 7 so that in the corruption by private persons, the following shall be liable for an offense: Any agent who, without reasonable excuse solicits or accepts any advantage as an inducement to or reward for; Any person who, without reasonable excuse, offers any advantage to any agent as an inducement to or reward for; Any agent who, with intent to deceive his principal uses any receipt, account or other document; If an agent accepts an advantage, neither he nor the person who offered the advantage shall be guilty of an offense if the act is done with the permission of his principal, the advantage is unsolicited and the advantage is of small or insignificant value and given as mere ordinary token of gratitude or friendship; and If the act is done with the permission of an agent’s principal, the permission shall be given before the advantage is offered or accepted or if accepted without prior permission, be applied for and given as soon as reasonably possible after such offer or acceptance.

The bill said that any public officer or private individual committing any of the unlawful acts or omissions enumerated in the act shall be punished with imprisonment for six years and one month to 15 years, and a fine of P500,000 to P1 million, perpetual disqualification from public office, and confiscation or forfeiture in favor of the government of any prohibited interest and unexplained wealth manifestly out of proportion to his salary and other lawful income.

Furthermore, any person committing the acts mentioned in Section 7 shall be punished with imprisonment of six years and one month to 15 years and a fine of P500,000 to P1 million, and payment of damages to persons prejudiced by the acts committed.

The bill said that all heads of government offices, agencies and departments, as well as heads of corporations and businesses, or of their applicable departments or offices must make available reports of advantages received and permitted under this law. The reports shall be made available for inspection, copying, reproduction by the Office of the Ombudsman at regular working hours on regular business days.

In filing the bill, Tugna noted that while corruption has always been associated with the government, the problem occurs in the private sector, as well. Tugna added the country currently has no laws that penalize corruption in the private sector although graft and corruption is not limited in the government sector.

“People always see that corruption is only prevalent in the government offices, agencies and departments. They believe that public officials are the only ones who abuse their power and position to gain advantage.  But the evils of graft and corruption have always plagued both the public and private sectors of our society in the Philippines,” he said.

Tugna, a deputy majority leader, said it is a reality that people use money, position, or any advantage as an inducement or reward in order to get what they want. These activities are considered forms of graft and corruption according to him.

In line with the thrust of the United Nations Convention Against Corruption, which was signed by the Philippines in November 2006, Tugna said now is the right time to amend RA 3019 to include a provision that will penalize corruption in the private sector.

source:  Business Mirror

DSWD opposes lowering of minimum age of criminal responsibility in new Criminal Code

The Department of Social Welfare and Development (DSWD) and the Juvenile Justice and Welfare Council (JJWC) said Tuesday that they strongly oppose the lowering of the minimum age of criminal responsibility (MACR) from 15 years old to 13 as provided in the New Criminal Code – Book I.

According to DSWD Secretary Corazon J. Soliman, the proposed provisions in the New Criminal Code – Book I does not conform with international laws.

Soliman cited that the Philippines is a State Party to the United Nations Convention on the Rights of the Child (UNCRC) and other international treaties promoting and protecting children’s rights.

“Hence, the Philippines has obliged itself to respond to children in conflict with the law, in accordance with these treaties, to effectively serve the best interests of children and, in the short and long term, the interest of the society,” Soliman pointed out.

Soliman added that the proposed provisions are not consistent with the UNCRC and other treaties that call for States to develop a juvenile justice system that does not resort to judicial proceedings and to use the deprivation of liberty only as a last measure.

She said that lowering the MACR in Section 8 of the proposed Code will lead to an increased chances for more teenagers to be subjected to judicial proceedings which is contrary to the spirit and intent of the Convention.

“Moreover, once a higher MACR has been established, the State must not lower it but must only progressively increase the minimum age. The proposed Section 8 provision is a setback to the Philippines efforts in advancing child rights protection,” she stressed.

In 2009, the UNCRC Committee, in its 2009 concluding observations to the Philippines report to UNCRC compliance, commended the country’s passage of the Juvenile Justice and Welfare Act of 2006 (or RA 9344), which raised the MACR from 9 to 15 years old.

It also expressed its concern on the initiatives to lower the MACR.

It particularly urged the Philippines to ensure that the MACR is not lowered.

The DSWD chief added that the proposed Section 9 provision also contravenes the international principle against discrimination when it allowed children to be tried as adults for serious crimes committed.

She added that children do not become adults when they commit serious crimes.

“It is not the offense that determines the full maturity of children but their age, and physical and mental development. Therefore, the full protection and coverage of juvenile justice should be for all children below 18 years old,” she stated.

She cited that the Philippine Constitution guarantees to ensure and defend the right of children from all forms of conditions prejudicial to their development.

“Because of this mandate and by virtue of our international obligations, RA 9344, as amended, was enacted. The proposed provisions on children in Sections 8 and 9 of the Criminal Code are therefore not consistent with the Philippines laws,” she again added.

According to the DSWD chief, criminalizing younger children is “anti-poor”.

Prior to the enactment of RA 9344, studies found that most children involved in crimes were poor.

Most came from dysfunctioning families who lack access to basic needs, parental love and support, with very little education and were usually neglected or abused.

Most committed theft and crimes against property.

“Clearly, such were crimes committed for survival, safety and security,” she said.

She recalled that prior to RA 9344, when the MACR was low, very young children were often arrested and detained without proper procedures.

“It was common to find young children accused of stealing or vagrancy in overcrowded cells, mixed with adult prisoners who had been charged with rape, murder and other serious crimes. Various reports showed how these children became subjected to bullying by guards and older prisoners and had to endure the sub-human conditions of the jail,” she explained.

She cited that since most of them came from poor families, they stayed longer in prison for lack of proper representation in the courts and thereby results to suffering of different kinds of abuse during arrest and detention and came out of jail worse off than before.

The Lady DSWD chief further stressed that what these children need were help and assistance because their families cannot provide for them in which RA 9344 was enacted for.

She cited also that was is highly needed is full implementation of RA 9344 as amended by RA 10630.

She said that RA 10630 follows the principle of restorative justice and provides for a comprehensive and child-sensitive juvenile justice and welfare system.

Under the said law children are not tried as adults but are provided alternative measures for their accountability through diversion and provided with intervention for their rehabilitation and reintegration to the community.

She then called for joining hands in rehabilitating the children and leading away from the life of crime as restorative way that can benefit both the children and the nation as well. PNA

source:  Manila Times

Bail depends on crime and evidence of guilt

Dear PAO,
My neighbor is being accused of committing a drug-related crime. The information says that his case is “non-bailable” Does this mean he can’t post bail? Thank you.
Suzy

Dear Suzy,
Our answer on whether your friend can post bail will depend on the crime he is being accused of and whether the evidence of guilt against him is strong.

Bail is defined as the “security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions herein specified” (Sec. 1, Rule 114, Rules of Criminal Procedure).

Bail emanates from a person’s constitutional right to be presumed innocent until proven otherwise. The right to bail is guaranteed by our Constitution.

Section 13 of Article III of the 1987 Constitution states that, “All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. Xxx” Sec. 3, Rule 114 of the Rules on Criminal Procedure states that:

“All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment.”

The Constitution and the Rules are clear that a person has a right to bail unless that person is being charged of an offense punishable by reclusion perpetua, death, or life imprisonment, and the evidence of the person’s guilt is strong.

You did not state what crime your friend was being accused of.

Most probably he is being accused of a drug-related crime being pu–nished with life imprisonment.

Therefore, he is not entitled to bail only when the evidence of guilt is strong against him.

In order to determine this, he must file a petition for bail, so that the court can decide whether or not to grant him bail. If the court, after hearing the Petition, finds that the evidence of guilt is not strong against him, then he will be allowed to post bail.

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

Please be reminded that this advice is based solely on the facts you have narrated and our appreci–ation 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

source:  Manila Times

Cash deposit just one form of bail

Dear PAO,
My cousin has a pending criminal case and he wants to apply for bail. Is this possible? My relatives are considering raising money so that my cousin can do so. But first they would like to know the possibility of bail being granted. Are there other forms of bail aside from cash bail?
Janina

Dear Janina,
Bail is a security given for the release of a person who is lawfully detained in order to guarantee his appearance in court. Cash deposit is the most common kind of bail. But bail does not only take the form of a cash deposit. It may also be in the form of a corporate surety, property bond and recognizance (Section 1, Rule 114, Rules of Court).

In your letter, you made no mention as to what particular criminal case your cousin is facing. You also did not mention at which court his case is pending. Nevertheless, as a rule, bail is granted as a matter of right in the following instances: (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in cities and Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment (Section 4, Rule 114, Rules of Court).

If your cousin is already convicted before the Regional Trial Court for an offense not punishable by death, reclusion perpetua or life imprisonment, the grant of bail is discretionary upon the court (Section 5, Rules of Court). Also, the grant of bail is left to the discretion of the court if the offense for which your cousin is being charged is punishable by death, reclusion perpetua or life imprisonment and the evidence of guilt against him is not strong.

The grant of bail, however, is not possible if the offense for which your cousin is being charged is punishable by death, reclusion perpetua or life imprisonment and the prosecution has established that the evidence of guilt against him is strong (Section 7, Rules of Court). Further, your cousin will be denied bail, even if the penalty for the offense he committed is not death, reclusion perpetua or life imprisonment, if: (a) he is a recidivist, quasi-recidivist, habitual delinquent or has committed the crime aggravated by the cir–cumstance of reiteration; (b) he has previously escaped from a penal confinement, evaded sentence or has violated the conditions of his bail without valid justification; (c) he committed the offense while under probation, parole or conditional pardon; (d) the circumstances of his case indicate the probability of flight if released on bail; or (e) there is undue risk that he may commit another crime during pendency of the appeal (3rd paragraph, Section 5, Rules of Court).

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 appre–ciation 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