Criminal Law II, Prof.

IRJimenez

Title VII Crimes Committed by Public Officers

Who is a public officer?

1. Any person who:
a. Takes part in the performance of public functions in the Government b. Performs in the Govt. or any of its branches public duties as an employee, agent or subordinate official, of any rank or class

2. By:
a. Direct provision of law b. Popular election c. Appointment by competent authority

(Art. 203)
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Public officer issues

Laurel v. Desierto, 381 SCRA 48 Macalino v. Sandiganbayan, 376 SCRA 452 Preclaro v. Sandiganbayan, 247 SCRA 454

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People vs. Sandiganbayan (Feb. 16, 2005), citing Quimpo vs. Tanodbayan, 146 SCRA 137
Based on R.A. No. 8249, presidents, directors, trustees, and managers of all government-owned or controlled corporations, regardless of type, are subject to the jurisdiction of the Sandiganbayan when they are involved in graft and corruption

5 groups of felonies
1. Malfeasance and Misfeasance
a. Dereliction of duty b. Bribery

2. Frauds and Illegal Exactions 3. Malversation 4. Infidelity

a. Custody of prisoners b. Documents c. Revelation of secrets

5. Others
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Special laws
Graft & corruption - RA 3019 Plunder RA 7080 Money laundering RA 9160 Amassing ill-gotten wealth RA 1379

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Criminal Law II, Prof. IRJimenez

Dereliction of Duty Judicial system

Judges
A 204 Knowingly render unjust judgment A 205 Render manifestly unjust judgment thru negligence A 206 Render unjust interlocutory order A 207 Malicious delay

Police or prosecutor
A 208 - Neglect to prosecute offenses
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Dereliction of duty
Lawyers
A 209 Betrayal of trust
Prejudice client or reveal secrets thru malice or inexcusable negligence or ignorance Undertake the cause of opposing party in the same case

Bribery

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Criminal Law II, Prof. IRJimenez

BRIBERY . . . Felony. . .
. . . SOP . . . or . . . Kaloob?

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Kinds of bribery under RPC

1. 2. 3. 4. Direct bribery Art. 210 Indirect bribery Art. 211 Qualified bribery Art. 211-A Corruption of public officials Art. 212

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Elements of Direct Bribery

Public officer

Act or omission

Acceptance

Bribe

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WHO are liable?

Generally, public officers . . .

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Who else?
Private persons performing public duties
Arbitrators Assessors Appraisal & claim commissioners Experts

(Art. 210, last par.)

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WHAT is a bribe?
Money Gift Offer or promise of money or a gift Of value or capable of pecuniary estimation

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HOW does he receive the bribe?

1. Accepting or receiving the bribe 2. a. By himself or b. Through another

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Accept or receive issues

Formilleza vs. Sandiganbayan, 159 SCRA 1 Huggland vs. Judge Lantin, 326 SCRA 620 OCA vs. Judge Bautista, 409 SCRA 17 Sy vs. Judge Fineza, 413 SCRA 374
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Evidentiary issues
Marked money Previous acts of bribery Testimony of bribe-giver, bagman or undercover agent Unexplained wealth

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WHY does he accept a bribe?

1. Commit a crime 2. Do an unjust act 3. Fail to perform duty

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1. Commit a crime
1. 2. 3. 4. In relation to duties Mere acceptance of offer or promise Mere promise to perform crime sufficient If committed, impose penalty for crime

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2. Do an unjust act
Must receive gift
mere offer or promise not enough

Must act
Mere agreement not enough Penalty higher if unjust act accomplished

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3. Fail to perform duty

Gift or promise Failure must not be a crime by omission Non-fulfillment of duty
more difficult to prove because of negative fact easier to justify, especially for discretionary acts

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Bribe issues & defenses

Legitimate purpose
Loan repayment Gen. Garcia case Reward for informant Marifosque vs. People Family business Uy vs. Judge Osorio Court proceedings Maquiran vs. Grageda

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Indirect Bribery

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Elements of Indirect Bribery Art. 211

1. Public officer 2. Accepts gift 3. Offered by reason of his office

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By reason of office
Bribe-giver presently or potentially has transactions with defendant Bribe is out of proportion to any legitimate purpose

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Rationale for indirect bribery

Fallback position for direct bribery
In case of insufficient evidence In case of failure to prove direct bribery

Easier to prove
Need not prove consideration for bribe

P.D. 46 prohibits gifts on ANY occasion

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Art. 211-A Qualified Bribery

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Elements of qualified bribery

1. Who - Law enforcement officer 2. What - Refrains from arresting or prosecuting an offender who has committed a crime punishable by reclusion perpetua and/or death 3. Why offer, promise or gift

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Penalty
Penalty for offense not prosecuted Death penalty if offender asks or demands the gift or present

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Bribe depends on purpose

Offer, promise, gift or present
Direct Bribery To perform an act constituting a crime To refrain from doing duty

Qualified Bribery Gift or present Direct Bribery

To perform an act NOT constituting a crime
Act performed Act not completed

Indirect bribery
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Art. 212 - Corruption of public officials

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Elements of corruption of public officials

1. Offender offers/promises or gives money or gift to public officer 2. Under circumstances that would make public officer liable for direct or indirect bribery

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Criminal Law II, Prof. IRJimenez

Frauds & Illegal Exactions

A213 - Frauds against public treasury
1. Defraud Govt. in making contracts, furnishing supplies, settling accounts 2. In collecting taxes, licenses, or fees:
a. Demand unauthorized sums b. Voluntarily fail to issue receipt c. Collect or receive unauthorized payment in kind

A214 Other frauds Estafa by taking advantage of official position

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Frauds & Illegal Exactions

A215 Prohibited transactions
1. Appointive public officer 2. During incumbency 3. Direct or indirect interest in any transaction of exchange or speculation 4. Within territory of his jurisdiction

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Frauds & Illegal Exactions

A216 Prohibited interest
1. Any public officer
Applies to private experts, arbitrators and accountants re appraisal or adjudication of property, and to guardians re property of their ward

2. Direct or indirect interest in any contract or business 3. In which it is his official business to intervene
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Criminal Law II, Prof. IRJimenez

Malversation
1. Malversation of public funds or propertyArt 217 2. Failure to render accounts Art. 218 3. Failure to render accounts before leaving the country Art. 219 4. Illegal use of public funds Art. 220 5. Failure to make delivery of public funds Art. 221
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Elements of malversation

Public officer

Accountable

Misappropriation Public funds

or property

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Accountability issues
Quion v. People, 389 SCRA 412 Rueda vs. Sandignabayan Castillo v. Buencillo, 354 SCRA 641

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Criminal Law II, Prof. IRJimenez

Public funds or property

Centennial Commission fund Coco levy fund Republic v. COCOFED Sugar levy fund Gaston v. Republic Planters Bank Oil price stabilization fund Osmena v. Orbos On-line lottery fund Kilosbayan v. Guingona
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Public funds or property

Public funds loaned to a private entity become private funds (Ocampo v. People)

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Misappropriate or take

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Allow others to take

Same penalty for negligence Emphasis on public trust Eliminate convenient defense

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Presumption of misappropriation
Requisites
Failure to have forthcoming any funds or property with which he is chargeable Upon demand by any duly authorized officer

Rebuttable Agullo vs. Sandiganbayan, 361SCRA 556 No factual issue on correctness of audit

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Importance of a complete & accurate audit as basis

Querijero v. People, 397 SCRA 465

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Evidentiary issues
Demand
Not element of offense but VERY helpful in proving guilt Required to raise presumption

Completeness/correctness of audit Rebuttal by defense Damage

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Damage NOT necessary

Public office is a public trust Inherent wrong in violating public trust Easier to prosecute

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Payment or return
General rule NOT a defense Exception immediate payment may sufficiently rebut the presumption of misappropriation (Aquino v. Olivares, 399 SCRA 475) May be considered mitigating

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What are the possible defenses?

Lack of any element Order of superior Tabuena defense

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Tabuena defense
Tabuena vs. Sandiganbayan, 268 SCRA 332 - Lawful order of superior
Confession & avoidance Burden of proof on the accused to show
Lawful order Lack of discretion to disobey

SC cited unique circumstances

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Rebuttal of Tabuena defense

Unlawfulness of order
Contrary to law & regulations Contrary to policies & practices

Other options higher authority, COA Personal benefit

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Penalties
a. P. C. med. & max. - P200 b. P. M. min. & med. P201-6000 c. P. M. max R.T. min. P6001-12,000 d. R. T. med. & max. P12,001-22,000 e. R. T. max R. P. - > P22,000 In all cases a. Perpetual special disqualification b. Fine = funds or value of property malversed
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Other types of malversation

1. Failure to render accounts Art. 218 2. Failure to render accounts before leaving the country Art. 219 3. Illegal use of public funds Art. 220 4. Failure to make delivery of public funds Art. 221

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Rationale for punishing other forms of malversation

Legal standpoint - preventive measure Prosecutorial standpoint fallback position

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Criminal Law II, Prof. IRJimenez

Failure to render accounts (Art. 218 & 219)

Fail to account w/in 2 months Art. 218
Applies to separated officials Demand not necessary

Leave country w/o accounting Art. 219

Unauthorized departure Includes attempt to leave

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Technical Malversation Art. 220

Elements
Use public funds or property For public purpose Different from that for which it is appropriated

Abdulla vs. People (April 6, 2005) Penalty Depends on extent of damage to public service
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Failure to pay funds or deliver property (Art. 221)

Under obligation to pay funds or deliver property in his possession Fail to pay or deliver w/o valid reason A. Mayor and fine of 5%-25%

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Criminal Law II, Prof. IRJimenez

Infidelity of public officers

Documents Prisoners Information

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Infidelity in the custody of documents Art. 226 - 228

A226 Remove, destroy or conceal
Documents officially entrusted to him Higher penalty if serious damage caused to third party or public interest No falsification Except if justified, e.g. emergency

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Infidelity in the custody of documents Art. 226 - 228

A227 Break, or permit others to break, seal of papers entrusted to him A 228 Open, or permit others to open, any closed papers, documents or objects
In both cases, damage not necessary, unlike Art. 226 Reason: Allow others to remove, destroy or conceal without being discovered
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Criminal Law II, Prof. IRJimenez

Infidelity in the custody of prisoners Art. 223 - 225

A223 Consent to prisoner escape
1. Lower penalty for detention prisoner 2. Applies to relaxation of imprisonment 3. Penalty higher than Art. 156

A224 Evasion thru negligence

1. Penalty lower than A223

A225 Same acts as A223 & 224 by a private person entrusted with custody of arrested person - 1 lower
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Revelation of Secrets
A229 Reveal secrets known in his official capacity or wrongfully deliver confidential papers
Higher penalty if serious damage caused to public interest If national security Espionage Not remove, destroy or conceal papers

A230 Reveal secrets of private persons known in official capacity

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Other irregularities - Arts. 231 - 245

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Criminal Law II, Prof. IRJimenez

Disobedience
Open refusal to execute judgment, order or decision of superior (A231) Refusal to execute order after his suspension order is disapproved (A232) Failure to assist administration of justice or other public service after demand from competent authority (A233) Refusal of elected officer to be sworn in or discharge duties of office (A234)
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Maltreat prisoners Art. 235

Impose unauthorized punishments or inflict punishment in cruel and humiliating manner Higher penalty if to extract confession Also applicable to detention prisoners In addition to liability for injuries

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Anticipation, prolongation & abandonment of office

Exercise duties & powers of office 1.Before taking oath Anticipation (A236) 2.After term expires Prolongation (A237) Abandonment (A238)
Prejudice public service by not performing duties before resignation accepted Higher penalties if to avoid duty to prevent, prosecute, or punish crimes
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Criminal Law II, Prof. IRJimenez

Usurpation of powers
1. A239 - Public officer encroaches upon legislative power by making unauthorized general regulations or attempting to repeal or suspend a law 2. A240 - Judge assumes executive power or obstructs exercise thereof 3. A241 Executive officer assumes judicial power or obstruct execution of judicial order or decision
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Usurpation of powers
4. A242 - Public officer continues any proceeding after being required to desist & before question of jurisdiction is resolved 5. A243 Executive officer addresses order or suggestion to judge in a case before the courts

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Unlawful appointments
Public officer who knowingly nominates or appoints an unqualified person to public office

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Criminal Law II, Prof. IRJimenez

Abuses against chastity A245

1. Solicit or make indecent advances to a woman interested in matters pending before the public officer 2. Warden or jail guard solicits or makes indecent advances to a female prisoner or relative of prisoner
Lower penalty if relative of prisoner

Solicitation sufficient; separate liability for rape or acts of lasciviousness

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Elements of Par. 3(e)

Public officer

Unwarranted benefits or undue injury

Evident bad faith, manifest partiality, or inexcusable negligence

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Par. 3(e), R.A. 3019

Amount of undue injury or damage Olairez vs. Ombudsman, 365 SCRA 587 Estrada vs. Desierto, 445 SCRA 655 Unwarranted benefits Gallego vs. Sandiganbayan, 115 SCRA 793

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Criminal Law II, Prof. IRJimenez

Elements of Par. 3(g)

Public officer

Contract or transaction

Grossly disadvantageous

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Par. 3(g), R.A. 3019

Entering into . . . a contract or transaction
Ingco vs. Sandiganbayan, 272 SCRA 563

Grossly disadvantageous
Argana vs. Republic, 443 SCRA 184 Morales vs. People, 385 SCRA 259

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Plunder RA 7080
Amass, accumulate, or acquire By himself or with others Ill-gotten wealth >P50M Through a series or combination Predicate crimes malversation, bribery, fraudulent conveyance of public property, establishing monopolies, take undue advantage of public office
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Criminal Law II, Prof. IRJimenez

Elements of money laundering

Placement

Layering

Integration

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Unexplained wealth

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Backward trace of money trail

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Criminal Law II, Prof. IRJimenez

Granting immunity to obtain evidence

P.D. 749 R.A. 6981

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Any questions?

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