2010 BAR EXAMINATIONS CRIMINAL LAW 19 September 2010 2 P.M. 5 P.M.

. PART I I An agonizing and protracted trial having come to a close, the judge found A guilty beyond reasonable doubt of homicide and imposed on him a straight penalty of SIX (6) YEARS and ONE (1) DAY of prision mayor. The public prosecutor objected to the sentence on the ground that the proper penalty should have been TWELVE (12) YEARS and ONE (1) DAY of reclusion temporal. The defense counsel chimed in, contending that application of the Indeterminate Sentence Law should lead to the imposition of a straight penalty of SIX (6) MONTHS and ONE (1) DAY of prision correccional only. Who of the three is on the right track? Explain. (3%) (Public prosecutor. Penalty imposed by law for homicide is reclusion temporal, not prision mayor. And wrong application of ISL by defense counsel) II A. What is the crime of qualified bribery? (2%) (See Art. 211-A of the RPC as amended by R.A. 7659) B. May a judge be charged and prosecuted for such felony? How about a public prosecutor? A police officer? Explain. (5%) (Yes, if the judge asks or demands the gift or present, and the public prosecutor as well, if he refrains to prosecute the offender or he asks or demands such gift or present under Art. 211-A of the RPC) III May a public officer charged under Section 3(b) of Republic Act No. 3019 [directly or indirectly requesting or receiving any gift, present, share, percentage or benefit, for himself or for any other person, in connection with any contract or transaction between the government and any other party, wherein the public officer in his official capacity has to intervene under the law] also be simultaneously or successively charged with direct bribery under Article 210 of the Revised Penal Code? Explain. (4%) (Yes, he can be charged under the special law (R.A. 3019) and also under the penal code (Art. 210), see Merencillo vs. People G.R. Nos. 142369-70) IV Because of the barbarity and hideousness of the acts committed by the suspects/respondents in cutting off their victims appendages, stuffing their torsos, legs, body parts into oil drums and bullet-riddled vehicles and later on burying these oil drums, vehicles with the use of backhoes and other earth-moving machinery, the Commission on Human Rights (CHR) investigating team

recommended to the panel of public prosecutors that all respondents be charged with violation of the Heinous Crimes Law. The prosecution panel agreed with the CHR. As the Chief Prosecutor tasked with approving the filing of the Information, how will you pass upon the recommendation? Explain. (5%) (Chief Prosecutor should disapprove the filing of information as violation of the Heinous Crimes Law is broad and general, and covers not only murder but treason, qualified piracy, qualified bribery, parricide, kidnapping, etc.) V Arlene is engaged in the buy and sell of used garments, more popularly known as ukay-ukay. Among the items found by the police in a raid of her store in Baguio City were brand-new Louie Feraud blazers. Arlene was charged with fencing. Will the charge prosper? Why or why not? (5%) (No, unless she knew that the blazers were derived from the proceeds of the crime of robbery or theft, see definition of fencing under P.D. 1612) VI There being probable cause to believe that certain deposits and investments in a bank are related to an unlawful activity of smuggling by Alessandro as defined under Republic Act (RA) No. 9160, as amended (Anti-Money Laundering Act) an application for an order to inquiry into his deposit was filed with the Regional Trial Court. After hearing the application, the court granted the application and issued a freeze order. Pass upon the correctness of the courts order. Explain. (3%) (The RTCs order is invalid. Under R.A. 9160 as amended by R.A. 9194, it is the CA that has jurisdiction to determine probable case and to issue the freeze order, upon application, ex parte, by the AMLC) VII A widower of ten years, septuagenarian Canuto felt that he had license to engage in voyeurism. If not peeping into his neighbors rooms through his powerful single-cylinder telescope, he would trail young, shapely damsels along the hallways of shopping malls. While going up the escalator, he stayed a step behind a mini-skirted one, and in a moment of excitement, put his hand on her left hip and massaged it. The damsel screamed and hollered for help. Canuto was apprehended and brought up on inquest. What charge/s, if any, may he be held responsible for? Explain. (5%) (R.A. 9995 or the Anti-Photo and Video Voyeurism Act of 2009 is not applicable here. He may only be charged of unjust vexation under Art. 287 of the RPC) VIII A asked financial support from her showbiz friend B who accommodated her by issuing in her favor a postdated check in the sum of P90,000.00. Both of them knew that the check would not be honored because Bs account had just been closed. The two then approached trader C whom they asked to change the check with cash, even agreeing that the exchange be discounted at P85,000.00 with the assurance that the check shall be funded upon maturity. Upon Cs presentment of the check for payment on due date, it was dishonored because the account had

already been closed. What action/s may C commence against A and B to hold them to account for the loss of her P85,000.00? Explain. (5%) IX Proserfina, an assistant public high school principal, acted to facilitate the release of salary differentials and election duty per diem of classroom teachers with the agreement that they would reimburse her for her expenses. Did Proserfina commit a crime? Explain. (5%) (No. To be liable under R.A. 3019, she should have intervened in her official capacity, see Jaravata vs. Sandiganbayan, G.R. L-56170) X A, B and C are members of SFC Fraternity. While eating in a seaside restaurant, they were attacked by X, Y and Z, members of a rival fraternity. A rumble ensued in which the abovenamed members of the two fraternities assaulted each other in a confused and tumultuous manner resulting in the death of A. As it cannot be ascertained who actually killed A, the members of the two fraternities who took part in the rumble were charged for death caused in a tumultuous affray. Will the charge prosper? Explain. (4%) (Yes, under Art. 251 of the RPC, the criminal liability extends to those who have used violence upon the person of the deceased though it cannot be determined who inflicted the serious physical injuries on him) XI Angelina maintains a website where visitors can give their comments on the posted pictures of the goods she sells in her exclusive boutique. Bettina posted a comment that the red Birkin bag shown in Angelinas website is fake and that Angelina is known to sell counterfeit items. Angelina wants to file a case against Bettina. She seeks your advice. What advice will you give her? (4%) (She can file a case of libel, see definition of libel under Art. 353 of the RPC. Posting a comment on the internet is sufficient compliance to the publication requirement in a libel case) PART II XII A. Define Money Laundering. What are the three (3) stages in money laundering? (3%) (Definition of Money Laundering, see Sec. 4 of R.A. 9160. The stages in money laundering are: placement, layering and integration) B. What is the doctrine of pro reo? How does it relate to Article 48 of the Revised Penal Code? (3%) (Doctrine of Pro Reo - Whenever a penal law is to be construed and applied and the law admits of two interpretations, that interpretation which is lenient or favorable to the offender will be adopted. This doctrine is an exception to Art. 48 of the RPC) XIII

While his wife was on a 2-year scholarship abroad, Romeo was having an affair with his maid Dulcinea. Realizing that the affair was going nowhere, Dulcinea told Romeo that she was going back to the province to marry her childhood sweetheart. Clouded by anger and jealousy, Romeo strangled Dulcinea to death while she was sleeping in the maids quarters. The following day, Romeo was found catatonic inside the maids quarters. He was brought to the National Center for Mental Health (NCMH) where he was diagnosed to be mentally unstable. Charged with murder, Romeo pleaded insanity as a defense. A. Will Romeos defense prosper? Explain. (2%) (Yes, insanity as exempting circumstance unless he acted during a lucid interval, see Art. 12 of the RPC) B. What is the effect of the diagnosis of the NCMH on the case? (2%) (The diagnosis will be taken as a defense of insanity) XIV Paul lives with his long-time girlfriend Joan in a condominium in Makati. For more than a year, he has been secretly saving money in an envelope under their bed to buy her an engagement ring. One day, while Joan was cleaning their room, she found the envelope, took the money, and left Paul. As prosecutor, what crime, if any, would you charge Joan? Explain. (3%) (Theft) XV Suspecting that her husband of twenty years was having an affair, Leilanie hired a private investigator to spy on him. After two weeks, the private investigator showed Leilanie a video of her husband having sexual intercourse with another woman in a room of a five-star hotel. Based on what she saw on the video, Leilanie accused her husband of concubinage. Will the case of concubinage prosper? Explain. (3%) (No, isolated sexual intercourse in a hotel is not considered as cohabitation under Art. 334 of the RPC) XVI The president, treasurer, and secretary of ABC Corporation were charged with syndicated estafa under the following Information: That on or about the 1st week of January 2010 or subsequent thereto in Cebu City and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and all of them mutually helping and aiding one another in a syndicated manner, through a corporation registered with the Securities and Exchange Commission (SEC), with intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme, with intent to gain and by means of fraud and deceit, did then and there wilfully, unlawfully, and feloniously defraud Virna, Lana, Deborah and several other persons by falsely or fraudulently pretending or representing in a transaction or series of transactions, which they made with complainants and the public in general, to the effect that they were in a legitimate business of foreign exchange trading successively or simultaneously operating under the name and style of ABC Corporation and DEF Management Philippines, Incorporated, induced and succeeded in inducing

complainants and several other persons to give and deliver to said accused the amount of at least P20,000,000.00 on the strength of said manifestations and representations, the accused knowing fully well that the abovenamed corporations registered with the SEC are not licensed nor authorized to engage in foreign exchange trading and that such manifestations and representations to transact in foreign exchange were false and fraudulent, that these resulted to the damage and prejudice of the complainants and other persons, and that the defraudation pertains to funds solicited from the public in general by such corporations/associations. Will the case for syndicated estafa prosper? Explain. (5%) XVII A killed his wife and buried her in their backyard. He immediately went into hiding in the mountains. Three years later, the bones of As wife were discovered by X, the gardener. Since X had a standing warrant of arrest, he hid the bones in an old clay jar and kept quiet about it. After two years, Z, the caretaker, found the bones and reported the matter to the police. After 15 years of hiding, A left the country but returned three years later to take care of his ailing sibling. Six years thereafter, he was charged with parricide but raised the defense of prescription. A. Under the Revised Penal Code, when does the period of prescription of a crime commence to run? (1%) (Under Art. 91 of the RPC, the period of prescription commence to run upon discovery of the crime by the offended party, the authorities, or their agents) B. When is it interrupted? (1%) (It is interrupted upon filing of the complaint or information in court) C. Is As defense tenable? Explain. (3%) (No, parricide prescribes in 20 years. The filing of the complaint, 19 years after the discovery and report of the killing, against him was still within the prescriptive period) XVIII On her way home, Eva Marie saw an injured chow chow puppy behind a bush. Since the puppy did not have a collar, she brought it home so she could have it as a pet. Her son in fact begged Eva Marie to keep the puppy. The following day, Eva Marie bought a collar for the puppy and brought it to a veterinarian for treatment. A. Did Eva Marie incur criminal liability in bringing the puppy home as a pet? Explain. (2%) (Yes, having found a lost property and failed to deliver it to the authorities or to its owner, she is liable for theft under Art. 308 of the RPC) B. Did she incur civil liability? Explain. (2%) (Yes, every person criminally liable is likewise civilly liable) XIX

Jack and Jill have been married for seven years. One night, Jack came home drunk. Finding no food on the table, Jack started hitting Jill only to apologize the following day. A week later, the same episode occurred Jack came home drunk and started hitting Jill. Fearing for her life, Jill left and stayed with her sister. To woo Jill back, Jack sent her floral arrangements of spotted lilies and confectioneries. Two days later, Jill returned home and decided to give Jack another chance. After several days, however, Jack again came home drunk. The following day, he was found dead. Jill was charged with parricide but raised the defense of battered woman syndrome. A. Define Battered Woman Syndrome. (2%) (See Sec. 3 paragraph c of R.A. 9262) B. What are the three phases of the Battered Woman Syndrome? (3 %) (The three phases are: tension-building phase, acute battering incident, and tranquil and loving phase) C. Would the defense prosper despite the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code? Explain. (2%) (Yes, under Sec. 26 of R.A. 9262, battered woman syndrome is an absolutory defense despite absence of any elements for justifying circumstances) XX Matt was found guilty of drug trafficking while his younger brother Jeff was found guilty of possession of equipment, instrument, apparatus and other paraphernalia for dangerous drugs under Section 12 of Republic Act No. 9165. Matt filed a petition for probation. Jeff appealed his conviction during the pendency of which he also filed a petition for probation. The brothers counsel argued that they being first time offenders, their petitions for probation should be granted. How would you resolve the brothers petitions for probation? Explain. (3%) XXI Because peace negotiations on the Spratlys situation had failed, the Peoples Republic of China declared war against the Philippines. Myra, a Filipina who lives with her Italian expatriate boyfriend, discovered e-mail correspondence between him and a certain General Tung Kat Su of China. On March 12, 2010, Myra discovered that on even date her boyfriend had sent an e-mail to General Tung Kat Su, in which he agreed to provide vital information on the military defense of the Philippines to the Chinese government in exchange for P1 million and his safe return to Italy. Two weeks later, Myra decided to report the matter to the proper authorities. Did Myra commit a crime? Explain. (3%) (Yes, she liable for misprison of treason for failing to report the matter as soon as possible to the proper authorities. She will be punished as an accessory to the crime of treason) XXII Immediately after murdering Bob, Jake went to his mother to seek refuge. His mother told him to hide in the maids quarters until she finds a better place for him to hide. After two days, Jake transferred to his aunts house. A week later, Jake was apprehended by the police. Can Jakes

mother and aunt be made criminally liable as accessories to the crime of murder? Explain. (3 %) (The mother is exempt from criminal liability under Art. 20 of the RPC as a result of her relationship to her son, however the aunt is liable as accessory under Art. 19 paragraph 3 of the RPC if the author of the crime is guilty of murder) XXIII Christopher, John, Richard, and Luke are fraternity brothers. To protect themselves from rival fraternities, they all carry guns wherever they go. One night, after attending a party, they boarded a taxicab, held the driver at gunpoint and took the latters earnings. A. What crime, if any, did the four commit? Enumerate the elements of the crime. (2%) (Robbery. The elements are: 1) Unlawful taking of personal property belonging to another; 2) with intent to gain; and 3) with violence against or intimidation of person) B. Would your answer be the same if they killed the driver? Explain. (2%) (No, they committed the complex crime of robbery with homicide because by reason of or on occasion of robbery, the crime of homicide was committed) The dictatorial regime of President A of the Republic of Gordon was toppled by a combined force led by Gen. Abe, former royal guards and the secessionist Gordon Peoples Army. The new government constituted a Truth and Reconciliation Commission to look into the serious crimes committed under President As regime. After the hearings, the Commission recommended that an amnesty law be passed to cover even those involved in mass killings of members of indigenous groups who opposed President A. International human rights groups argued that the proposed amnesty law is contrary to international law. Decide with reasons. (4%)

Suggested Answer:

The proposed amnesty law is contrary to international law.

The indigenous group may constitute an ethnic group which is protected by the law on Genocide. If the mass killing was committed with the intent to destroy (dolus specialis) the said ethnic group as such, in whole or in part, then the crime of Genocide was committed. The international norm for the prevention, prosecution and punishment of Genocide is a peremptory (just cogens) norm of international law and, therefore, non-derogable. (Prosecutor v. Blagojevic and Jokic, ICTY, January 17, 2005)

Even if the mass killing was not committed with the dolus specialis to destroy the ethnic group as such, the same may still constitute the Crime Against Humanity of Extermination if the mass killing was widespread and systematic or the War Crime of Intentionally Attacking Civilians if the same took place in the context of or was associated with an armed conflict. The norm for the prevention, prosecution and punishment of crimes against humanity and war crimes are also customary norms of international and therefore binding on all States. (Prosecutor v. Stakic, ICTY, July 31, 2003)

Thus, Republic of Gordon has the obligation under international law to prosecute and punish all those involved in the mass killing of the members of the indigenous group and providing amnesty to those involved is violative of this obligation.

II.

Compare and contrast the jurisdiction of the International Criminal Court and International Court of Justice. (3%)

Suggested Answer:

The jurisdiction of the International Criminal Court (ICC) primarily deals with the prosecution of individuals for core international crimes, while the jurisdiction of the International Court of Justice (ICJ) deals with contentious proceedings between States.

As to subject matter jurisdiction (ratione materiae), the jurisdiction of the ICC is limited to the most serious crimes of concern to the international community as a whole, particularly: (a) the Crime of Genocide; (b) Crimes against Humanity; (c) War crimes; and (d) the Crime of Aggression. (R. Sarmiento, Public International Law Bar Reviewer, 2009 Revised Edition, p. 308). On the other hand, the jurisdiction of the ICJ covers legal disputes which the States refer to it. This includes disputes concerning: (a) the interpretation of a treaty; (b) any question of international law; (c) the existence of any fact which, if established, would constitute a breach of an international obligation; and (d) the nature or extent of the reparation to be made for the breach of an international obligation. (Article 36, ICJ Statute) The ICJ also has jurisdiction to give an advisory opinion on any legal question as may be requested by the General Assembly or the Security Council or on legal questions arising within the scope of the activities of other

organs and specialized agencies of the U.N. upon their request and when so authorized by the General Assembly. (Article 96, U.N. Charter)

As to jurisdiction over the persons or parties (ratione personae), the ICC shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, and shall be complementary to national criminal jurisdictions. (Art. 1, Rome Statute) On the other hand, only States may be parties in cases before the ICJ and their consent is needed for the ICJ to acquire jurisdiction. (R. Sarmiento, Public International Law Bar Reviewer, 2009 Revised Edition, p. 185)

III.

A, a British photojournalist, was covering the violent protests of the Thai Red-Shirts Movement in Bangkok. Despite warnings given by the Thai Prime Minister to foreigners, specially journalists, A moved around the Thai capital. In the course of his coverage, he was killed with a stray bullet which was later identified as having come from the ranks of the Red-Shirts. The wife of A sought relief from Thai authorities but was refused assistance.

A.

Is there state responsibility on the part of Thailand? (2%)

B. What is the appropriate remedy available to the victims family under international law? (3%)

Suggested Answer:

A. No, there is no state responsibility on the part of Thailand because the acts of the Thai RedShirts were not the acts of Thailand. Under the Principle of Attribution or Imputation, a State only incurs liability for individual acts or omission which can be attributed to it. The Thai RedShirts are not its officials, agents, or representatives and they were not acting on the instructions of, or under the direction or control of, the Thai Government. (R. Sarmiento, Public International Law Bar Reviewer, 2009 Revised Edition, pp. 65-66)

B. Unless the Red-Shirts becomes the new Government of Thailand or Thailand acknowledges and adopts the conduct of the Red-Shirts as its own, the victims family has no appropriate remedy under international law. Their remedy, if any, if only available under the domestic laws of Thailand by the institution of the appropriate criminal cases against the persons responsible for A killing and the filing of an action to recover damages arising from As death.

IV.

Choose the statement which appropriately completes the opening phrase:

A State which resorts to retorsion in international law

A. must ensure that all states consent to its act. B. cannot curtail migration from the offending state. C. can expel the nationals of the offending state. D. should apply proportionate response within appreciable limit. E. None of the above.

Explain your answer. (2%)

Suggested Answer:

D. A State which resorts to retorsion in international law should apply proportionate response within appreciable limits.

Retorsion consists in retaliation where the acts complained of do not constitute a legal ground of offense but are rather in the nature of unfriendly acts done primarily in pursuance of legitimate State interests but indirectly hurtful to other States. (R. Sarmiento, Public International Law Bar Reviewer, 2009 Revised Edition, p. 233)

To be valid in international law, acts of retorsion should not be excessive when compared to the unfriendly acts committed by the offending State. Moreover, they should not violate a States obligation under Article 2(3) of the U.N. Charter to settle their disputes by peaceful means in such a manner that international peace and security and justice are not endangered.

XI.

Which statement best completes the following phrase: (1%)

Freedom from torture is a right

A. subject to derogation when national security is threatened. B. confined only during custodial investigation. C. which is non-derogable both during peacetime and in a situation of armed conflict. D. both (a) and (b) E. none of the above.

Suggested Answer:

C. Freedom from torture is a right which is non-derogable both during peacetime and in a situation of armed conflict.

Article 2(2) of the U.N. Convention Against Torture provides that No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.

Because of the importance of the values it protects, the prohibition of torture has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even ordinary customary rules. The most conspicuous consequence of this higher rank is that the norm prohibiting torture cannot be derogated from by States through international treaties or local or special customs or even general customary rules not endowed with the same normative force. (Prosecutor v. Furundzija, ICTY, December 10, 1998)

XXVII.

What is the concept of association under international law? (2%)

Suggested Answer:

Under international law, an association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. Free associations represent a middle ground between integration and independence. (C.I. Keitner and W.M. Reisman, Free Association: The United States Experience, 39 Tex. Int'l L.J. 1 (2003)).

In international practice, the "associated state" arrangement has usually been used as a transitional device of former colonies on their way to full independence. Examples of states that have passed through the status of associated states as a transitional phase are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since become independent states. (Henkin, et al., International Law: Cases and Materials, 2nd ed., 274 (1987))

In deciding the constitutionality of the Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001, the Supreme Court had ruled that the concept of association under international law is not recognized under the 1987

Constitution as it runs counter to the national sovereignty and territorial integrity of the Republic. (Province of North Cotabato v. GRP Peace Panel on Ancestral Domain, G.R. No. 183591, Oct. 14, 2008)