title vii - crimes committed by public officers

Criminal Law II, Prof. IRJimenez

To be used only as reference for an accompanying lecture 1

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Title VIICrimes Committed by

Public Officers

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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 Gov’t. 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 lawb. Popular electionc. Appointment by competent authority

(Art. 203)

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• Laurel v. Desierto, 381 SCRA 48• Macalino v. Sandiganbayan, 376

SCRA 452•Preclaro v. Sandiganbayan, 247 SCRA 454

“Public officer” issues



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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

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5 groups of felonies1. Malfeasance and Misfeasance

a. Dereliction of dutyb. Bribery

2. Frauds and Illegal Exactions3. Malversation4. Infidelity

a. Custody of prisonersb. Documentsc. 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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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

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Bribery



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BRIBERY . . . Felony. . . . . . SOP . . . or

. . . Kaloob?

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Kinds of bribery under RPC

1. Direct bribery – Art. 2102. Indirect bribery – Art. 2113. Qualified bribery – Art. 211-A4. Corruption of public officials – Art. 212

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Elements of Direct Bribery

Publicofficer 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 himselfor

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 crime2. Do an unjust act3. Fail to perform duty

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1. Commit a crime

1. In relation to duties2. Mere acceptance of offer or promise3. Mere promise to perform crime sufficient4. 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 BriberyArt. 211

1. Public officer2. Accepts gift3. 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 bribery1. Who - Law enforcement officer2. 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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Frauds & Illegal Exactions

• A213 - Frauds against public treasury1. Defraud Gov’t. in making contracts,

furnishing supplies, settling accounts2. In collecting taxes, licenses, or fees:

a. Demand unauthorized sumsb. Voluntarily fail to issue receiptc. Collect or receive unauthorized payment in kind

A214 – Other frauds – Estafa by taking advantage of official position

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• A215 – Prohibited transactions1. Appointive public officer2. During incumbency3. Direct or indirect interest in any transaction

of exchange or speculation4. Within territory of his jurisdiction

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• A216 – Prohibited interest1. 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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Malversation

1. Malversation of public funds or property-Art 217

2. Failure to render accounts – Art. 2183. Failure to render accounts before leaving

the country – Art. 2194. Illegal use of public funds – Art. 2205. Failure to make delivery of public funds –

Art. 221

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Elements of malversation

Publicofficer Accountable

Misappropriation Public fundsor property

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“Accountability” issues

• Quiñon v. People, 389 SCRA 412

• Rueda vs. Sandignabayan

• Castillo v. Buencillo, 354 SCRA 641



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“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. - ≤ P200b. P. M. min. & med. – P201-6000c. P. M. max – R.T. min. – P6001-12,000d. R. T. med. & max. – P12,001-22,000e. R. T. max – R. P. - > P22,000In 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. 2182. Failure to render accounts before leaving

the country – Art. 2193. Illegal use of public funds – Art. 2204. 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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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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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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Infidelity in the custody of prisoners – Art. 223 - 225

• A223 – Consent to prisoner escape1. Lower penalty for detention prisoner2. Applies to “relaxation of imprisonment”3. Penalty higher than Art. 156

• A224 – Evasion thru negligence1. 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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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 office1.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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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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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)

Publicofficer

Unwarrantedbenefits or

undue injury

Evident bad faith,manifest partiality,

or inexcusable negligence

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• 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

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



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Elements of Par. 3(g)

Publicofficer

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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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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Granting immunity to obtain evidence

• P.D. 749• R.A. 6981

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Any questions?

title vii - crimes committed by public officers

Documents

accompanying lecture

public officers2who

case9briberycriminal

branches public duties

corruption of public

kinds of bribery

qualified bribery

indirect bribery