JAPAY, JAN-NERE C.

Note:
● This essay was made as partial compliance to the subject Special Penal Laws in PUP
● This is the original essay which inspired the article posted in
https://ralblaw.com/prescription-of-crime-vs-prescription-of-penalty/

PRESCRIPTION OF CRIME V. PRESCRIPTION OF PENALTY

Introduction

Prescription as a human creation creates the fiction that something such as, a legal action,
enforcement of a right, or in this essay – criminal liability, is not possible to be enforced because
of lapse of time, often arbitrarily selected by the lawmakers. We can say that both prescription of
a crime and prescription of the penalty thereof, ultimately equates to extinguishment of criminal
liability, grounded upon lapse of time.

The lapse of time involved in each and every kinds of crime differs from one legal
jurisdiction to another, e.g. United States of America (USA) have a different set of prescriptive
periods for crimes and penalties compared to the Philippines, just like how crimes differs from
one legal jurisdiction to another. 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 there is
a crime that transpired. The absence of the said crime will subject the act to the legal doctrine 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 is a crime.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. This essay will
attempt to explain to the reader, especially to those who have no legal background, the difference
of both concepts, purpose of each, rules surrounding each under Philippine legal setting,
interruption of lapse of time, and 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.

1
Potenciana M. Evangelista v. People of the Philippines, G.R. Nos. 108135-36, SC First Div., August 14, 2000.
2
Andrews, Laurel (July 29, 2016). "Here's how many cannabis plants Alaskans can now legally possess at home".
Alaska Dispatch News.
https://web.archive.org/web/20200922090648/https://www.adn.com/alaska-news/2016/07/29/heres-how-many-
cannabis-plants-alaskans-can-now-legally-possess-at-home (Retrieved: 9 September 2021)
3
Sec. 11, R.A. 9165.
What is Prescription of Crime and Prescription of Penalty?

The author deems it best to defer to authorities in defining these complex concepts so as
to avoid any subjective biases in defining strict legal concepts. 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 defined to be related to the limitation of the right of the State and the Government against the
people.

Worthy to note, however, that “government” and “state” are two distinct concepts which
shall not be used interchangeably by the reader. The author leaves these concepts to be studied
by the reader independently outside this essay. But in attempt to provide a better understanding,
it is not the Government rather the State which prosecutes the crime, as crimes 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 to be lost due to some arbitrary selection of period lapsed. The same observation is true
when it comes to prescription of penalty. After all, a layman would argue, a crime has transpired
yet the perpetrator remained to be not accountable, ergo, justice was denied.

During the writing of this essay, the author was unable to find any scholarly explanations
from case law or writings of highly qualified publicists why these legal concepts were devised,
although it is certain that such an article or case exists. Perhaps, due to time constraints involved
in researching in this essay, the author will attempt to explain the rationale of said concepts based
on his own menial understanding.

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, 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.

4
L.B. Reyes (2017). The Revised Penal Code. Rex Printing Company, Inc. p. 864-865.
 On the other hand, prescription of penalty was devised, 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, which 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 Court in People of the Philippines v. 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.”5Hence, prescription of
crime can only be claimed under the following circumstances6:

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

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

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.

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

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

Light offenses prescribe in two months.

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).”

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.”
7

When shall the prescription of penalty be interrupted?

5
People of the Philippines v. Pascual Castro, G.R. No. L-6407, SC-En Banc, July 29, 1954
6
Art. 90, Act No. 3815 or “The Revised Penal Code”
7
Sec. 2, Act No. 3326.
 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.” 8 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. Gatbalite9, 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.

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.”

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

The following rules shall govern:

1. 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;
2. 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.”; and
3. When the penalty is a compound one, the highest penalty is the basis of the application of
the rules in Article 90. 10

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 offers different premises, at the end of the day
they both produce the effect of extinguishment of liability.

8
Art. 93, Revised Penal Code.
9
Benjamin Pangan v. Hon. Lourdes Gatbalite, G.R. No. 141718, SC – First Div., January 21, 2005.
10
People of the Philippines v. Cruz, 108 Phil. 255, 259
 Such rules may seem absurd at first in the eyes of a layman, but both of these legal
concepts allow the superior power of the State over ordinary people to be kept in check.
Therefore, both concepts, albeit rarely used or applied in the practice of law, plays an important
role for the criminal justice system.