Vous êtes sur la page 1sur 7

Art. 11 Revised Penal Code.


Introduction: The Use of Force Defenses: These are the justifying circumstances where the accused is
allowed to use force i.e to inflict injury upon the victim or to destroy property. The force may either be (i)
Deadly Force or that which can result to serious physical injuries or even to the death of the victim
and (ii) Non-Deadly but reasonable force.

The Use- of-Force-Defenses include (i) self-Defense (ii) Defense of Relative and (iii) Defense of


I. Concept: When a person uses force and causes injury to another or destroys the property of another,
in order to defend his own person, rights, property or honor against an aggression/attack coming from the
The elements: It requires proof of the existence of an: (i) unlawful aggression, (ii) the
reasonable necessity of the means employed to prevent or repel the attack and (iii) the lack of sufficient
provocation on the part of the accused. The first two are common to the three Use-of- Force- Defenses.

II. First element: There must be present an unlawful aggression coming from the victim.

A. This refers either to:

1. Real or Material Aggression or an attack that has broken out or has actually materialized.
Examples; the act of shooting another’s with a gun; hitting another with or without a weapon;
trespass to another’s property; running away with another’s property; uttering slanderous words;
publicizing or broadcast of libelous matters.
2. Imminent or one which is at the point of happening. They refer to acts of the victim which show a
clear and positively strong intention to cause harm to the accused, which can only be prevented
through the use of force.
These are more than mere threatening attitudes, or oral threats or threatening stance or postures

B. An aggression is more serious that an act of simple provocation by the victim.

C. This element is the foundation of the Use of Force Defenses. It has to be proven otherwise there is
nothing to defend against

D. Principles:
1. The aggression must be “unlawful” i.e the victim was not acting in accordance with laws, or
under color of right. Thus the following do not constitute “unlawful” aggression: (i) the act of a
property owner in pushing out an intruder for refusing to leave peacefully (ii) the act of a policeman
in handcuffing a law violator (iii) the scolding by a teacher of an unruly student.

2. The aggression must come from the victim.

3. At the time of the defense, the aggression must still be continuing and in existence. In the
following instances there is no more aggression and if the accused still uses forces, he becomes
the aggressor:
a). When the attacker desists, or is prevented or restrained by third persons; or is divested of
his weapon, or is overpowered
b). When the attacker retreats unless it is to secure a more vantage position

4. Question: When the person attacked was able to wrest the weapon or has disarmed his attacker,
may he use the weapon against the attacker? Answer: No because the aggression has ceased
unless the attacker persist to grab back the weapon for in such case, there is still imminent danger
tot his life or limb.
5. Thus: there must be no appreciable lapse of time between the unlawful aggression and the act
done to repel or prevent it

6. Presumption as to the Aggressor: Where there is no direct evidence who was the aggressor, it
may be presumed that the one who was deeply offended by the insult was the one who had a right
to demand an explanation from the perpetrator of the insult and he must have been the one who
struck first if the proffered explanation was unsatisfactory ( PP. vs. Ramos, 77 Phil. 4)

E. At what point may a person attacked put up a defense?

1. Retreat-to-the-Wall Principle. –The doctrine which states that before a person is entitled to use
force in self defense he must first attempt to withdraw from the encounter by giving as much
ground as possible and it is only there is no more place to retreat that he may now use force to
defend himself.
This doctrine is impractical and has been abandoned

2. Stand-Your-Ground-When-In-The-Right Principle.- The doctrine which holds that when a

person is attacked in the place where he has a right to be, he need not retreat but he may
immediately use force to defend himself.

a). This is the prevailing doctrine followed. It applies to all especially to law enforcement agents
who are expected to stand their ground and to subdue, overcome and arrest criminals.
b) A related doctrine is the Castle Doctrine.-When a person is attacked in his dwelling (a man’s
house is his castle) he is not expected to retreat but he may immediately use force to defend
himself and his dwelling. This is availed of where armed persons intrude into a dwelling as it is
natural to expect that the armed persons would use their weapons at any time and upon any
occupant of the dwelling.

F. May the attacker claim self defense?

1. As a rule one who initiates an attack can not claim self defense being himself the aggressor.
2. However he is entitled to an incomplete self defense: (a) if he is met with excessive force in
return and is forced to defend himself or (b) When he withdraws or retreats from the attack but is
pursued by the intended victim and he had to defend himself.

G. Rule when there is an agreement to a fight or when one accepts a challenge to a fight. Neither one
can put up self defense because each is an aggressor to the other and both anticipate the aggression
coming from the other. The law leaves them where they are. Except when one is attacked by the other
in violation of the terms and conditions of the fight, such as to the time, place and choice of weapons
agreed upon, then the person attacked may claim self defense.

III. Second element: There must be reasonable necessity of the means employed to prevent or repel the
attack. .

A. The question is whether the defense is appropriate and commensurate to the type, degree, and
intensity of the aggression taking into consideration the place, occasion and surrounding
circumstances of the aggression.

B. The reasonableness of the means include two aspects: (1). Reasonableness of the Mode of
Defense and (2) Reasonableness of the Choice of Weapon. A person under attack has the right to
defend, but as it proper for him to sue a weapon and if so, whether the weapon chosen is
commensurate to the attack.

C. The law requires Rational Necessity and Rational Equivalence of Weapons and not Factual
Equality, to be determined by considering both the subjective and objective aspects of the situation.
They include the following:
1. The imminence of the danger as it appeared to the accused coupled by the instinct for self-
2. When the attacker is armed, consider the instrument of aggression and the means of defense
most readily and immediately available to the person attacked
3. Consider the physique, size, age, sex, knowledge of martial arts ( the hands and feet of boxers,
martial artists, wrestlers, are considered deadly weapons) of the attacker and the person attacked,
including the reputation of the attacker as a person of violence
4. Consider whether under the time and place of the attack, the person attacked can call for
immediate assistance
5. Consider the number of the attackers

D. When can Deadly Force be used?

1. When there is an attack on a person’s life or limbs i.e he may either be killed or seriously injured
2. In case of an attack upon one’s property, it must be coupled with an attack on the person’s life
or limb which promises death or serious bodily harm, otherwise only reasonable force must be
If there is no attack on the person’s life or limb, reasonable force may still be used as is
necessary to protect the property from being seized, destroyed or interfered with under
the Doctrine of Self Help provided for In Article 429 of the New Civil Code.
3. In case of an attack on chastity, deadly force is allowed if there is a clear intent to rape, which
intent maybe negated by the circumstances of time and place; if there is no clear intent to rape only
reasonable force must be used
4. In case of attack on one’s honor or reputation, the use of physical force is never justified. When
one is libeled or defamed, he may fight back with a similar libel or defamation provided it is only to
the extent which is necessary to free himself from the effects of the libel/defamation. This is called
the “ Doctrine of Justified Libel” or
“ The Privilege of a Reply Doctrine”.
5. The Principle of Self defense and Use of Deadly Force does not apply to situations where a
person is injured or killed as a result of the installation of Protective Devises/Methods such as by
the installation of live electric wires on a fence, or by attack dogs let loose in one’s yard.

IV. The third element: Lack of Sufficient Provocation on the part of the Person Claiming Self Defense.

A. Concept: The person attacked must not have given sufficient reason for the victim to attack him.
B. Provocation: This includes any conduct which excites, incites or induces a person to re-act, it is
conduct which vexes or annoys, irritates or angers another.
C. This third element is present in any of the following situations:

1. When no provocation at all was given by the accused.

When a property owner angrily demands why the victim built a fence on his land, which in turn
angered the victim to attack the accused, such conduct on the part of the accuse is not

2. When there was provocation but it was not sufficient i.e. it may have vexed or annoyed but was
not sufficient for the victim to make the kind of attack he employed upon the accused. The
sufficiency must be measured in relation to the reaction of the victim

3. When sufficiency provocation was given but it was not immediate to the attack

D. Examples of sufficient provocation:

1. Imputing to the victim the utterance of vulgar language
2. Trespassing into the property of the victim
3. Jokes made in poor taste or bad mouthing the victim
4. Destroying the victim’s property

I.. Relative: They refer exclusively tot eh a persons’ spouse, ascendant, descendant, brothers of sisters;
relatives by affinity in the same degree; and by consanguinity within the 4th civil degree

II. The third element: The One Defending Had No part in the Provocation.

A. This is present in the following instances:

1. The relative defended did not give any provocation at all
2. If the relative gave provocation, the one defending was not aware of it
3. If the relative gave provocation, the one defending did not participate either actually or morally,
as by encouragement

B. Even if the person defending acted out of evil motive, such as revenge, this defense is still available


I. Stranger is any person not a relative.

II. The third element: The Person Defending Should Not Be actuated by Revenge, Resentment, or
Other Evil Motive

A. The accused must prove he acted out of an honest desire to save the life or limb or property of the
stranger and not because his true intention was to harm the victim. If otherwise he is deemed to be
committing a crime there being present the elements of actus reus and mens rea.

B. QUESTION: Suppose it was the stranger who gave provocation? The accused is entitled to this



I. Rationale behind these defenses:

A. For self defense: 1. It is the natural and inherent right of every person to defend himself 2. The state
can not protect its citizens at all times hence it gives them the right to defend themselves
B. For Defense of Relative: It is in recognition of the strong ties of blood i.e blood is thicker than water.
C. For Defense of Strangers: What a man can do in his defense, another can do for him.

II. Cases in which the Principle of Self Defense Applies

A. Defense of Life and Limb
B. Defense of Property
C. Defense of Honor/Reputation
D. Defense of Chastity
E. Defense of Civil, Political and natural Rights

III. Factors Affecting the Credibility of the Defenses

A. The claim of self defense, ( as well as of relative and stranger) are inherently weak and easily
fabricated, and must be corroborated by independent evidence
B. The location, number and nature of the wounds of the victim must be considered and may disprove
the claim of self-defense
C. The lack of wounds of the accused may disprove self defense and proof the lack of aggression on
the part of the victim
D. A refusal to give a statement upon surrendering, or non-assertion thereof, is inconsistent with a
claim of self defense. A claim of self-defense, if true, must be asserted promptly.
Par. 5 Any Person Who Acts in Fulfillment of a Duty
Or In Lawful Exercise of a Right or Office

I. Requirements/Elements
A. The accused was in the actual performance of a duty or in the lawful exercise of a right or office
B. He caused harm or injury to another as a necessary consequence of the performance of his duty or
exercise of a right or office
C. He was not negligent or that there was no abuse, or excess or oppression on the part of the

II. The term office or duty does not necessarily refer to a public office or public duty as it is to be
understood in its generic sense. It includes private office or employment or duty as well as the exercise of
a calling or a profession or occupation.

III. Illustrations:

A. When injuries are inflicted on a suspect who resists a valid arrest

B. Shooting an escaping prisoner in order to immobilize and prevent his escape, even if the shooting
resulted to his death. But not shooting him again after he was already immobilized, or he gives up
C. Killing of rebels by soldiers is not homicide or murder; or destruction of private property in a firefight
between rebels/criminals and soldiers/law enforcers
Amputation of patients by physicians in order to save their lives
D. Lawyers calling witnesses as liars are not liable for defamation or unjust vexation
E. Scolding lazy students by teachers is not defamation
F. Executioners are not criminally liable
. A lawyer who writes a reply-letter describing the adverse party as untruthful and hypocrite

IV. Application in Relation to Law Enforcers Who Used Force and kill or Injure Suspects/accused

1. Cabanlig vs. Sandiganbayan ( July 28, 2005)

FACTS: A suspect who was onboard a police vehicle, suddenly grabbed the armalite rifle of one of
the policemen and jumped from the vehicle. One of the policemen shouted “hoy” and the accused
policeman simultaneously shot the suspect three times resulting to the death of the suspect. Is he
policeman liable for the death of the victim?
HELD: No. He acted in lawful performance of duty.

A policeman in the performance of duty is justified in using force as is reasonably necessary to secure
and detain the offender, over come his resistance, prevent escape, recapture him if necessary and
protect himself form bodily injury. In case injury or death results from the policeman’s exercise of such
force, the policeman could be justified… if the policeman had used necessary force. Since the
policeman’s duty requires him to overcome the offender, the force exerted … may there fore differ
from that which ordinarily may be offered in self-defense. However, a policeman is never justified in
using unnecessary force or in treating the offender with wanton violence, or in resorting to dangerous
means when the arrest could be effected otherwise. ( Cabanlig vs. Sandiganbayan ( July 28, 2005).

2. Re: Duty to Issue Warning.

The duty to issue a warning is not absolutely mandated at all times and at all cost, to the detriment of
the life of law enforcers. The directive to issue a warning contemplates a situation where several
options are still available to the law enforcers. In exceptional circumstances… where the threat to the
life of a law enforcer is already imminent, and there is no other option but to use force to subdue the
offender, the law enforcer’s failure to issue a warning is excusable. ( Cabanlig vs. Sandiganbayan)

Par. 6. Obedience to a Lawful Order of a Superior

I. Concept and Elements: Any person who acts in obedience to an order issued by a superior for some
lawful purpose. This presupposes that a person carried out the order of his superior but in so doing he
cause armor injury to another. He is not libel provided the following elements are present:

A. An order was issued by a superior acting within the sphere of his lawful rights
B. The order is for some lawful purpose
C. The means to carry out the order is lawful

II. The term “superior” includes any person higher in rank to the accused and who is entitled to demand
obedience form the accused. Such rank is not necessarily in the AFP or PNP but includes both public and
private employment and extends even to rank in social standing or in personal relations.

The Battered Woman Syndrome

1. Legal Provision: Created under R.A. 9262 known as the “Anti Violence Against Women and
their Children Act of 2004”

Section 26: Battered Woman Syndrome as a Defense: Victim-survivors who are found by the courts to be
suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the
absence of any of the elements for justifying circumstances of self-defense under the Revised Penal

In the determination of the state of mind of the woman who was suffering from battered woman syndrome
at the time of the commission of the crime, the courts shall be assisted by expert psychologists.

2. Concept

a). It is a psychological condition in which a woman commits physical violence against her husband or
mate as a result of the continued physical ort mental abuse to which he has subjected her.

b). Under this defense a woman who is constantly abused by her husband may be justified in using force
at a time when there is not strictly “immediate danger”. The theory is that women in such circumstances
have two choices: either wait for their husband to kill them or strike first in a form of offensive self-

c). Development in the Philippines

1. The Case in which it was first recognized was People vs. Marivic Genosa, Jan 15, 2004 419 SCRA
537) involving a wife who was convicted of Parricide for killing her husband who was sleeping.

a). Battered woman: a woman who is repeatedly subjected to any forceful physical or psychological
behavior by a man in order to coerce her to do something he wants her to do without concern for her
rights.. (they) include wives or women in any form of intimate relationship with men. Furthermore, in order
to be classified as a battered woman, the couple must go through the cycle at least twice”

b) Battered women exhibit common personality traits, such as low self esteem, traditional beliefs about
home, the family and the female sex role; emotional dependence upon the dominant male; the tendency
to accept responsibility for the batterer’s action; and false hopes that the relationship will improve.

c) The syndrome is characterized by the so called “Cycle of Violence” which has three phases:
(i) The Tension Building Phase: minor battering occurs: it could be verbal or slight
physical abuse or other form of hostile behavior. The woman tries to pacify the man
through a show of kind, nurturing behavior; or by simply staying out of his way. What
actually happens is that she allows herself to be abused in way that to her fare minor.
Alls he wants is to prevent the escalation of the violence. But her placatory and
passive behavior legitimizes his belief that he has the right to abuse her.

(ii). The Acute Battering Phase: this is characterized by brutality, destructiveness

an, sometimes death. The woman deems this incident as unpredictable yet also
inevitable. She has no control: only the man can put an end tog the violence She
realizes that she can not reason with him and that resistance would only exacerbate
her condition. She has a sense of detachment although she may later clearly
remember the details. Her apparent passivity is because the man is stronger
physically and it is useless to fight back

(iii). The Tranquil, Loving or Non-Violent Phase. The couple experience profound
relief. On one hand the man shows a tender and nurturing behavior and he knows he
has been viciously cruel and tries to make up for it begging her forgiveness and
promising never to beat her again. The woman also tries to convince herself that the
battery will never happen again; that her partner will change for the better; that this
good, gentle and caring man is the real person she loves.

d). The foregoing cycle happens because: (i) the woman believes that the violence was her fault (ii) the
woman fears for her life and her children’s lives (iii) the woman has an irrational belief that the abuser is
all powerful and that she is beer off with him than without him for financial reasons and (iv) Love: inspite
of constant assault, after a little cajoling, the woman is convinced that the man still loves her.

QUESTION: Must there be unlawful aggression at the time of the killing?

In The Genosa case, it was ruled that the accused was not entitled to complete exoneration because
there was no unlawful aggression- no immediate and unexpected attack on her at the time she shot
him. But the severe beatings repeatedly inflicted constituted a form of cumulative psychological paralysis:
diminished her will power, thereby entitling her to the mitigating factor under paragraphs 9 and 10 of
Article 13.

However, RA 9262 has liberalized it in view of the provisions which reads: “… notwithstanding the
absence for the elements of self defense…”