Rules on bail & recognizance during a pandemic
Judge Marlo Campanilla is a well-known author, lecturer and expert in criminal law and special penal laws. His books are available in fine bookstores nationwide. https://www.rexestore.com/law-library-essentials/1756-criminal-law-reviewer-volume-i-cloth-bound.html.Below is a discussion by Judge Marlo Campanilla on May 03, 2020 on his Facebook article "Bail and recognizance in times of corona virus crisis." Read more: www.facebook.com/notes/marlo-campanilla/bail-and-recognizance-in-times-of-corona-virus-crisis/3360508207302059.
There are three rules that governed bail and recognizance, to wit:
- Administrative Circular No. 38-2020;
- OCA circular no. 91-2020 in relation to Administrative Matter No. 12-11-2-SC, Section 16, Rule 114 of the Rules of Court and RA No. 10389; and
- Section 4 of Rules 114 of the Rules of Court in relation to the Constitution and DOJ bail guidelines (DOJ Circular No. 13).
1. Benefit– Accused may be released on his own recognizance or bail with a reduced amount under Administrative Circular No. 38-2020.
Accused is entitled to be released on his own recognizance under OCA Circular no. 91-2020 in relation to Administrative Matter No. 12-11-2-SC, and Section 16, Rule 114 of the Rules of Court. However, the accused may be released on recognizance of qualified person under RA No. 10389.
Accused has the right to post bail under Section 4, Rules 114 of the Rules of Court unless the accused is charged with a crime punishable by reclusion perpetua, death penalty or life imprisonment.2. Application – The are three conditions to avail of the benefit or recognizance or a reduced bail under Administrative Circular No. 38-2020, to wit:
- The prisoner deprived of liberty (PDL) is indigent;
- PDL must be arraigned personally or through video conference; and
- The benefit under this circular may be availed of during the period of public health emergency.
There is one condition to avail the benefit of recognizance under
OCA Circular no. 91-2020 in relation to Administrative Matter No. 12-11-2-SC, and Section 16, Rule 114 of the Rules of Court, and that is, the service of the minimum of the penalty for the offense charged.
There is only one condition to exercise right to post bail under Section 4, Rule 114 of the Rules of Court, and that is, the accused is not charged of crime punishable by reclusion perpetua, death penalty or life imprisonment. Otherwise, a petition for bail must be filed in accordance with Sections 7 and 8 of Rule 114 of the Rules of Court.
RECOGNIZANCE UNDER ADMINISTRATIVE CIRCULAR NO. 38- 2020
If the PDL may be release on his own recognizance under Administrative Circular No. 38-2020 subject to the following conditions:
- PDL is indigent;
- PDL avail the benefit of recognizance during the period of public health emergency;
- PDL has already been arraigned; if not, he must be arraigned personally or through video conference.
- The penalty for the crime charged is arresto menor or arresto mayor.
PDL shall be released on his own recognizance under OCA Circular no. 91-2020 upon service of the minimum of the penalty for the offense charged.
If he served the maximum of the penalty for the offense charged, recognizance is not anymore required. He will be released based on Article 29 of the Revised Penal Code in relation to Section 16, Rule 114 of the Rules of Court.
The word “penalty” in the phrase “minimum of the penalty for the offense charged” in OCA Circular no. 91-2020 pertains to the penalty prescribed by law and the indeterminate penalty under the Islaw. The convict who served the minimum penalty under the Islaw shall only be released by the President by placing him under parole.
In determining if the child in conflict with the law has already served the minimum penalty, it is submitted that the privilege mitigating circumstance of minority should be consider because of Section 34 of RA No. 9344. The court may even release the child in conflict with the law on recognizance of his/her parent (Section 35 of RA No. 9344).
AMOUNT OF BAIL UNDER THE RULES OF COURT
The amount of bail under Section 4, Rules 114 of the Rules of Court is based on the recommendation of the prosecutor in accordance with DOJ Circular No. 13 subject to reduction of the Court in accordance with Section 9 of Rule 114 of the Rules of Court, which is quoted as follows:
“SEC. 9. Amount of bail; guidelines. — The judge who issued the warrant or granted the application shall fix a reasonable amount of bail considering primarily, but not limited to, the following factors:
(a) Financial ability of the accused to give bail;
(b) Nature and circumstances of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;
(f) Weight of the evidence against the accused;
(g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
(i) The fact that the accused was a fugitive from justice when arrested; and
(j) Pendency of other cases where the accused is on bail.
Excessive bail shall not be required."
Bail with reduced
amount under Administrative Circular No. 38- 2020
The amount of bail as recommended by the fiscal in accordance with DOJ bail guidelines in the information may be substantially reduced in accordance with Administrative Circular No. 38- 2020 subject to the following conditions:
- PDL is indigent;
- PDL avail the benefit of recognizance during the period of public health emergency;
- PDL has already been arraigned; if not, he must be arraigned personally or through video conference; and
- The penalty for the crime charged is prision correccional, prision mayor or reclusion temporal.
1. To apply rule no. 1 of Administrative Circular No. 38-2020, the PDL must be charged with a crime punishable with the maximum period of reclusion temporal e.g. if the penalty is prision mayor in its maximum period to reclusion temporal in its minimum period, rule 1 will apply.
2. Under rule 1, the bail shall be computed by getting the medium period of the penalty prescribed for the crime charged multiplied by P3,000 for every year of imprisonment.
Example: The PDL is charged with homicide with the penalty of reclusion temporal. The medium period of reclusion temporal is 14 years, 8 months and 1 day to 17 years and 4 months. 17 years will be multiplied by P3,000. Hence, the amount of bail for indigent PDL, who has been arraigned, is P51,000.
RULE NO. 2
1. To apply rule no. 2 of Administrative Circular No. 38-2020, the PDL must be charged with a crime punishable with the maximum period of prision mayor e.g. if the penalty for robbery is prision correccional in its maximum period to prison mayor in its medium period, rule 2 will apply.
2. Under rule 1, the bail shall be computed by getting the medium period of the penalty prescribed for the crime charged multiplied by P2,000 for every year of imprisonment.
Example: The PDL is charged with robbery with the penalty of prision correccional in its maximum period to prison mayor in its medium. The medium period of this penalty is prision mayor in its minimum period, which has a ranged from 6 years and 1 day to 8 years. 8 years will be multiplied by P2,000. Hence, the amount of bail for indigent PDL, who has been arraigned, is P16,000.
RULE NO. 3
1. To apply rule no. 3 of Administrative Circular No. 38- 2020, the PDL must be charged with a crime punishable with the maximum period of prision correccional e.g. if the penalty for theft involving an amount of over P5,0000 but not exceeding P20,000 is arresto mayor in its medium period to prision correccional in its minimum period, Rule 3 will apply.
2. Under rule 1, the bail shall be computed by getting the medium period of the penalty prescribed for the crime charged multiplied by P1,000 for every year of imprisonment.
Example: The PDL is charged with theft involving an amount of P10,000 with the penalty of arresto mayor in its medium period to prision correccional in its minimum period. The medium period of this penalty is arresto mayor in its maximum period, which has a ranged from 4 months and 1 day to 6 months. Hence, the amount of bail for indigent PDL, who has been arraigned, is P1,000.
The PDL is charged with illegal gambling involving with the penalty of prision correccional in its medium period. The medium period of prision correccional in its medium period has a ranged from 2 years, 11 months and 11 days to 3 years, 6 months and 20 days. 3 years will be multiplied by P1,000. Hence, the amount of bail for indigent PDL, who has been arraigned, is P3,000.
Judge Marlo Campanilla is a well-known author, lecturer and expert in criminal law and special penal laws. His books are available in fine bookstores nationwide. https://www.rexestore.com/law-library-essentials/1756-criminal-law-reviewer-volume-i-cloth-bound.html.
