Prescription Of Crime Vs Prescription Of Penalty

Introduction

Prescription, as a human creation, creates the fiction that something such as, a legal action, enforcement of a right, or criminal liability, is not possible to be enforced because of lapse of time, often arbitrarily created through legislative fiat.

We can say that both prescription of a crime and prescription of the penalty thereof ultimately equate to extinguishment of criminal liability, grounded upon the applicability of statute of limitations.

The passing of a period of time involved in each and every kind of felonies or offenses differs from one legal jurisdiction to another.

The United States of America (USA) has different set of prescriptive periods for crimes and penalties compared to the Philippines, just like how crimes distinguish themselves among different countries.

This entails that, for the understanding of prescription of crime and of penalty, it is crucial that the reader understands that prescription only sets in when a crime transpires.

The absence of the said crime will subject the act to the legal doctrine the of Nullum  crimen, nulla poena sine praevia lege poenali or “No crime, no punishment without a previous  penal law”.¹

For instance, possession of marijuana in the State of Alaska in USA is allowed to a certain degree,² while in the Philippines mere possession of the same is a criminal offense against the State.³

In Philippine legal setting, prescription of crime is enshrined in Article 90 of the Revised Penal Code, while prescription of penalty is under Article 92 of the said Code.

We will attempt to explain to the readers, specially to those who have no legal background, the:

• difference between both concepts
• purpose and rules surrounding each under Philippine legal setting
• interruption of lapse of time
• computation of period lapsed

In explaining all of the above-mentioned lessons, the author will use related case laws, both domestic and international, as well as publications of highly qualified publicists, and media articles available in the world wide web.

What is Prescription of Crime and Prescription of Penalty?

Authorities and legal luminaries define these legal concepts for proper legal application. The rights, favorable to the accused or convicted arising from this legal precepts, are creation of law. Hence, substantive rights emanate from them.

In this regard, prescription of crime, according to Associate Justice Luis B. Reyes, is the:

“forfeiture or loss of the right of the State to prosecute the offender after the lapse of a certain time.” While, prescription of penalty is the “loss or forfeiture of the right of the Government to execute the final sentence after the lapse of a certain time.”⁴

Simply put, prescription of crime involves prosecution of the crime per se, while prescription of penalty involves the execution of the final sentence.

Both of these concepts are characterized as relating to the limitation of the right of the State and the Government against the people.

Worthy to note, however, is that “government” and “state” are two distinct theories which should not be used interchangeably.

The author leaves them to be studied independently. However, in an attempt to provide a better understanding, it is not the Government but rather the State which prosecutes the crimes, as the same are committed against the State.

On the other hand, it is the Government, not the State, which executes the final sentence against the accused.

What is the purpose of Prescription of Crime and Prescription of Penalty?

At first glance, it seems absurd that the State creates a fiction, whereby, its right to prosecute a crime, in some instances with great certainty of truthfulness of accusations, will be deemed lost due to some arbitrary selection of period that has lapsed.

The same observation is true when it comes to prescription of penalty. After all, a layman would argue, a crime has transpired, or has been committed; yet, the perpetrator remains to be not accountable. Ergo, justice has been denied.

Nevertheless, crimes ought to have prescriptive periods to limit the overwhelming power of the State against a citizen.

After all, it is the State which has superior machinery in prosecuting a crime and gathering pieces of evidence in proving such.

To add, the framers of the Constitution probably thought that, since the State has this overwhelming power, it also has the capacity to fabricate pieces of evidence just to prosecute a crime, perhaps for political purposes or for extralegal correction of wrongs committed against the society.

This may happen in the guise of documents which are very old or dependence on testimonies which becomes less reliable as time goes by.

In an attempt to limit this huge power mismatch and ensure that individual rights are protected, prescription of crime was adopted.

On the other hand, prescription of penalty has been legally conceptualized and created, probably as a recognition that despite the offender having escaped in prison, his or her liberty was not exercised in its full capacity and he or she may have lived a life in fear of apprehension.

This, in turn, may have allowed for him or her to learn from his or her mistake. Hence, the purpose of the criminal justice system to rehabilitate erring individuals was sufficiently complied with.

What is the rule on prescription of crime and when does it commence?

Prescription is a right which comes from a substantive provision of the law.

To quote the Supreme Court⁵ in People of the Philippines vs. Pascual Castro:

“Hence, the rule provides that the plea of prescription should be set up before arraignment, or before the accused pleads to the charge, as otherwise the defense would be deemed waived; but, as was well said in the Moran case, this rule is not of absolute application, especially when it conflicts with a substantive provisions of the law, such as that which refers to prescription of crimes.”⁶

Hence, prescription of crime can only be claimed under the following circumstances:⁷

“Article 90. Prescription of crime. – Crimes punishable by death, reclusion perpetua or reclusion temporal shall prescribe in twenty years.⁸

Crimes punishable by other afflictive penalties shall prescribe in fifteen years.⁸

Those punishable by a correctional penalty shall prescribe in ten years; with the exception of those punishable by arresto mayor, which shall prescribe in five years.⁸

The crime of libel or other similar offenses shall prescribe in one year.⁸

The crime of oral defamation and slander by deed shall prescribe in six months.⁸

Light offenses prescribe in two months.⁸

When the penalty fixed by law is a compound one, the highest penalty shall be made the basis of the application of the rules contained in the first, second and third paragraphs of this article. (As amended by RA 4661, approved June 19, 1966).”⁸

Under the Revised Penal Code of the Philippines, it  states that:

“The period of prescription shall commence to run from the day on which the crime is discovered by the offended party, the authorities, or their agents, and shall be interrupted by the filing of the complaint or information, and shall 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.”⁹

Act No. 3326 provides that prescription of crime shall commence “from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and the institution of judicial proceeding for its investigation and punishment.”¹⁰

Setting Up Prescription of Crime during the Proceedings

When should the accused move for the dismissal of the charge on the ground of prescription of crime? The answer is anytime before or after judgment and even on appeal.

Such defense is not deemed waived even if the same is not interpose before or during arraignment of the accused. This right in favor of the accused is substantive and not merely procedural convenience.

In the case of Syhunliong vs. Rivera,¹¹ the High Court elucidated the following:

“A case in point is People vs. Moran, 44 Phil., 387. x x x [T]he court ruled that the crime had already prescribed holding that this defense can not [b]e deemed waived even if the case had been decided by the lower court and was pending appeal in the Supreme Court.¹²

“The philosophy behind this ruling was aptly stated as follows:¹²

“Although the general rule is that the defense of prescription is not available unless expressly set up in the lower court, as in that case it is presumed to have been waived and cannot be taken advantage of thereafter, yet this rule is not always of absolute application in criminal cases, such as that in which prescription of the crime is expressly provided by law, for the State not having then the right to prosecute, or continue prosecuting, nor to punish, or continue punishing, the offense, or to continue holding the defendant subject to its action through the imposition of the penalty, the court must so declare.”¹³

The Supreme Court¹³ continued:

“As prescription of the crime is the loss by the State of the right to prosecute and punish the same, it is absolutely indisputable that from the moment the State has lost or waived such right, the defendant may, at any stage of the proceeding, demand and ask that the same be finally dismissed and he be acquitted from the complaint, and such petition is proper and effective even if the court taking cognizance of the case has already rendered judgment and said judgment is merely in suspense, pending the resolution of a motion for a reconsideration and new trial, and this is the more so since in such a case there is not yet any final and irrevocable judgment.”¹³

Prescription of Crimes: Light Offenses & Infractions Punishable by Ordinance

Both light offenses, except oral defamation and slander by deed, and violations of ordinance prescribe in two (2) months, either from the fact of commission or discovery thereof.

The rules of prescription under Revised Penal Code of the Philippines apply to felonies punished by the said code. On the other hand, the rules of prescription for violations of Special Laws and of Municipal Ordinance are governed by Act No. 3326.

Nonetheless, if the Special Law provides for its own prescription, then the latter will apply and not Act. No. 3326. Violation of City Ordinance falls also within the ambit of Act No. 3326, as tacitly recognized under the cases of Zaldivia vs. Reyes¹⁴ and Jadewell Parking Systems vs. Lidua, Sr.¹⁵

When does the running of prescription, for light offenses and violation of ordinance, stop?

This calls for a qualified answer.

For light offenses punished by the Revised Penal Code or Special Laws,¹⁶ the filing before the Prosecutor’s Office of the criminal complaint-affidavit will toll the running of the prescriptive period.

On the other hand, when infractions punishable by City or Municipal Ordinance are involved, the filing before the Prosecutor’s Office will not stop the running of the prescriptive period of two months.

In this case, it is the filing of the Prosecutor’s Office before the court of an Information charging a certain individual for violation of city or municipal ordinance that will halt the running of the statute of limitation.

In Zaldivia vs. Reyes,¹⁷ the High Court ruled that Act No. 3326 is a special law that should prevail against then Rule 110, Section 1 of the 1985 Rules of Criminal Procedure. In addition, Act No. 3326 pertains to “judicial proceedings” which must commence to toll the running of the prescriptive period. Hence:

“Under Section 9 of the Rule on Summary Procedure, “the complaint or information shall be filed directly in court without need of a prior preliminary examination or preliminary investigation.” Both parties agree that this provision does not prevent the prosecutor from conducting a preliminary investigation if he wants to. However, the case shall be deemed commenced only when it is filed in court, whether or not the prosecution decides to conduct a preliminary investigation. This means that the running of the prescriptive period shall be halted on the date the case is actually filed in court and not on any date before that.”¹⁸

“This interpretation is in consonance with Act No. 3326 which says that the period of prescription shall be suspended “when proceedings are instituted against the guilty party.” The proceedings referred to in Section 2 thereof are “judicial proceedings,” contrary to the submission of the Solicitor General that they include administrative proceedings. His contention is that we must not distinguish as the law does not distinguish. As a matter of fact, it does.”¹⁸

“The Court feels that if there be a conflict between the Rule on Summary Procedure and Section 1 of Rule 110 of the Rules on Criminal Procedure, the former should prevail as the special law. And if there be a conflict between Act No. 3326 and Rule 110 of the Rules on Criminal Procedure, the latter must again yield because this Court, in the exercise of its rule-making power, is not allowed to “diminish, increase or modify substantive rights” under Article VIII, Section 5(5) of the Constitution. Prescription in criminal cases is a substantive right.”¹⁸

Zaldivia has been reiterated in the subsequent case of Jadewell Parking Systems vs. Lidua, Sr.¹⁹ the Supreme Court, in upholding the dismissal of the case against the respondent on the ground of prescription, ruled that:

“There is no distinction between the filing of the Information contemplated in the Rules of Criminal Procedure and in the Rules of Summary Procedure. When the representatives of the petitioner filed the Complaint before the Provincial Prosecutor of Baguio, the prescription period was running. It continued to run until the filing of the Information.”²⁰

“They had two months to file the Information and institute the judicial proceedings by filing the Information with the Municipal Trial Court. The conduct of the preliminary investigation, the original charge of Robbery, and the subsequent finding of the violation of the ordinance did not alter the period within which to file the Information. Respondents were correct in arguing that the petitioner only had two months from the discovery and commission of the offense before it prescribed within which to file the Information with the Municipal Trial Court.”²⁰

“Unfortunately, when the Office of the Prosecutor filed the Informations on October 5, 2003, the period had already prescribed. Thus, respondent Judge Nestor Lidua, Sr. did not err when he ordered the dismissal of the case against respondents.”²⁰

However, in People vs. Pangilinan,²¹ the distinction between violation of the Special Penal Law and Revised Penal Code, in so far as interrupting the running of the prescriptive period of a certain crime is concerned, has been discarded, as what previously espoused in Zaldivia. The ruling Zaldivia is not anymore controlling with respect to violation of Special Law. Thus:

“Respondent’s contention that a different rule should be applied to cases involving special laws is bereft of merit. There is no more distinction between cases under the RPC and those covered by special laws with respect to the interruption of the period of prescription. The ruling in Zaldivia v. Reyes, Jr. is not controlling in special laws. In Llenes v. Dicdican, Ingco, et al. v. Sandiganbayan, Brillante v. CA, and Sanrio Company Limited v. Lim, cases involving special laws, this Court held that the institution of proceedings for preliminary investigation against the accused interrupts the period of prescription. In Securities and Exchange Commission v. Interport Resources Corporation, et. al., the Court even ruled that investigations conducted by the Securities and Exchange Commission for violations of the Revised Securities Act and the Securities Regulations Code effectively interrupts the prescription period because it is equivalent to the preliminary investigation conducted by the DOJ in criminal cases.²²

“In fact, in the case of Panaguiton, Jr. v. Department of Justice, which is in all fours with the instant case, this Court categorically ruled that commencement of the proceedings for the prosecution of the accused before the Office of the City Prosecutor effectively interrupted the prescriptive period for the offenses they had been charged under BP Blg. 22. Aggrieved parties, especially those who do not sleep on their rights and actively pursue their causes, should not be allowed to suffer unnecessarily further simply because of circumstances beyond their control, like the accused’s delaying tactics or the delay and inefficiency of the investigating agencies.”²²

Zaldivia is still a good doctrine with respect to violation of ordinance, in the same as the Jadewell, which reiterated the ruling in Zaldivia.

When shall the prescription of penalty be interrupted?

The law provides that prescription of penalty shall be interrupted when:

“defendant should give himself up, be captured, should go to some foreign country with which this Government has no extradition treaty, or should commit another crime before the expiration of the period of prescription.”²³

To simplify, prescription of penalty is interrupted based solely to the acts of the offender. In the event that the offender escapes and thereafter apprehended beyond the prescriptive period, the offender shall be given his or her liberty.

In Pangan v. Gatbalite,²⁴ the Supreme Court explained:

“We, therefore, rule that for prescription of penalty of imprisonment imposed by final sentence to commence to run, the culprit should escape during the term of such imprisonment. . . As correctly pointed out by the Solicitor General, “escape” in legal parlance and for purposes of Articles 93 and 157 of the RPC means unlawful departure of prisoner from the limits of his custody. Clearly, one who has not been committed to prison cannot be said to have escaped therefrom.⁸

“In the instant case, petitioner was never brought to prison. In fact, even before the execution of the judgment for his conviction, he was already in hiding. Now petitioner begs for the compassion of the Court because he has ceased to live a life of peace and tranquility after he failed to appear in court for the execution of his sentence. But it was petitioner who chose to become a fugitive. The Court accords compassion only to those who are deserving. Petitioner’s guilt was proven beyond reasonable doubt but he refused to answer for the wrong he committed. He is therefore not to be rewarded therefor.”⁸

How is the computation done with respect to the prescription of crimes?

In matters of computation, the following rules shall govern:

As regards the start of counting – Article 13 of the Civil Code provides that the first day shall be excluded while the last day shall be included:

1] As regards the interpretation of words like years, months, weeks, and days – Article 13 of the Civil Code provides that “When the laws speak of years, months, days or nights, it shall be understood that years are of three hundred sixty-five days each; months, of thirty days; days, of twenty-four hours; and nights from sunset to sunrise. If months are designated by their name, they shall be computed by the number of days which they respectively have.”;²⁵ and

2] When the penalty is a compound one, the highest penalty is the basis of the application of the rules in Article 90.²⁶

Final Thoughts 

Prescription of crime and prescription of penalty may seem similar at first glance, but are widely different at a closer look. Although both have offers different premises at the end of the day, they both produce the effect of extinguishment of liability.

Such rules may seem absurd at first in the eyes of a layman. Nevertheless, both of these legal concepts allow the superior power of the State over ordinary people to be kept in check, thus, being balanced despite State’s vast powers and authority.

Therefore, both legal paradigms, albeit rarely used or applied in the practice of law if not for its unequivocal application based on facts, play an important role for the criminal justice system.

1. Potenciana M. Evangelista v. People of the Philippines, G.R. Nos. 108135-36, SC First Div., August 14, 2000[↩]
2. Here’s how many cannabis plants Alaskans can now legally possess at home[↩]
3. Section 11, Republic Act No. 9165[↩]
4. L.B. Reyes (2017). The Revised Penal Code. Rex Printing Company, Inc. p. 864-865.[↩]
5. People of the Philippines v. Pascual Castro, G.R. No. L-6407, SC-En Banc, July 29, 1954[↩]
6. Ibid. G.R. No. L-6407, SC-En Banc, July 29, 1954[↩]
7. Art. 90, Act No. 3815 or “The Revised Penal Code”[↩]
8. Ibid.[↩][↩][↩][↩][↩][↩][↩][↩][↩]
9. Article 91, Revised Penal Code of the Philippines[↩]
10. Act No. 3326, An Act To Establish Periods Of Prescription For Violations Penalized By Special Acts And Municipal Ordinances And To Provide When Prescription Shall Begin To Run[↩]
11. G.R. No. 200148, June 04, 2014[↩]
12. Ibid.[↩][↩]
13. Ibid.[↩][↩][↩]
14. G.R. No. 102342. July 3, 1992[↩]
15. G.R. No. 169588, October 7, 2013[↩]
16. People of the Philippines vs. Pangilinan, G.R. No. 152662, June 13, 2012[↩]
17. Supra., G.R. No. 102342. July 3, 1992[↩]
18. Ibid.[↩][↩][↩]
19. Supra., G.R. No. 169588, October 7, 2013[↩]
20. Ibid.[↩][↩][↩]
21. G.R. No. 152662, June 13, 2012[↩]
22. Ibid.[↩][↩]
23. Art. 93, Revised Penal Code[↩]
24. Benjamin Pangan v. Hon. Lourdes Gatbalite, G.R. No. 141718, SC – First Div., January 21, 2005[↩]
25. Article 13, New Civil Code of the Philippines[↩]
26. People of the Philippines v. Cruz, 108 Phil. 255, 259, G.R. No. L-15132. May 25, 1960[↩]