ARTICLE 13

Mitigating Circumstances

Mitigating circumstances are those which, if present in the commission of the crime, do
not entirely free the actor from criminal liability, but serve only to reduce the penalty.

Mitigating circumstances are based on the diminution of either freedom of action,

intelligence, or intent, or on the lesser perversity of the offender.

Classes of Mitigating Circumstances

1. Ordinary Mitigating – those enumerated in sub-sections 1 to 10 of Article 13. Ordinary

mitigating is susceptible of being offset by any aggravating circumstance. If not
offset by an aggravating circumstance, produces only the effect of applying the penalty
provided by law for the crime in its minimum period.
2. Privilege Mitigating – Article 68, 69, 64. Cannot be offset by aggravating
circumstance. Produces the effect of imposing upon the offender the penalty lower by
one or two degrees than that provided by law for the crime.

Privilege mitigating is applicable only to particular crimes.

1. Voluntary release of a person illegally detained within 3 days without the offender
attaining his purpose and before the institution of criminal action.
2. Abandonment without justification of the spouse who committed adultery.

CIRCUMSTANCES WHICH MITIGATE CRIMINAL LIABILITY

Art. 13. Mitigating circumstances. — The following are mitigating circumstances;

1. Those mentioned in the preceding chapter, when all the requisites necessary to
justify or to exempt from criminal liability in the respective cases are not
attendant. (Note: paragraph 1 of Article 13 as mitigating is only applicable if unlawful aggression is
present but the other two requisites is NOT present. This is known as incomplete self-defense.)

Paragraph refers to justifying circumstance and exempting circumstance. The

circumstance of justification and exemption may gave place to mitigation, because not all the
requisites necessary to justify the act or exempt from criminal liability in the respective
cases are attendant:
1. Self-Defense – If third requisite (justifying circumstance) is absent, it is privileged
mitigating. Note that unlawful aggression must always be present.
2. Defense of Relatives - If third requisite (justifying circumstance) is absent, it is
privileged mitigating. Note that unlawful aggression must always be present.
 3. Defense of Stranger - If third requisite (justifying circumstance) is absent, it is
privileged mitigating. Note that unlawful aggression must always be present.
4. State of Necessity
5. Performance of Duty – if one of the two requisites is absent, it is mitigating.
6. Obedience to a superior - if one of the requisites is absent, it is mitigating
7. Minority above 15 but below 18 years of age – here, if discernment is present, it is
mitigating.
8. Causing injury by mere accident – if the requisites due care and without fault or
intention of causing it are absent, the case will fall under Article 365 which punishes a
felony by negligence or imprudence.
9. Uncontrollable fear - if only one of the requisites is present, it is mitigating,

 For self-defense, defense of relatives and defense of stranger, unlawful aggression is

present but either one or both of the last two requisites is absent.
 If two of the three requisites are present (example: unlawful aggress and Reasonable means
employed to prevent or repel it and the third requisite is absent) the case should be
considered as privileged mitigating.
 Remember that “unlawful aggression” must always be present. If unlawful aggression
is absent, then there is no self-defense, whether complete or incomplete.

2. That the offender is under eighteen year of age or over seventy years. In the
case of the minor, he shall be proceeded against in accordance with the
provisions of Art. 80. Note that this paragraph has been impliedly repealed by R.A. No. 9344,
declaring a child above 15 years but below 18 years of age exempted from criminal liability unless he/she
acted with discernment.

If the offender above 15 years but below 18 years of age acted with discernment, he/she
shall undergo diversion programs provided under Chapter 2 or R.A. No 9344. Diversion refers
to an alternative, child-appropriate process of determining the responsibility and treatment of
a child in conflict with the law on the basis of his/her social, cultural, economic, psychological,
or educational background without resulting to formal proceedings. Diversion Programs
refer to the program that the child in conflict with the law is required to undergo after he/she
is found responsible for an offense without resorting to formal court proceedings.

System of Diversion when applicable?

1. Where the imposable penalty for the crime committed is not more than six (6)
years imprisonment. (Here, there is only mediation, family conferencing, conciliation,
indigenous modes of conflict resolution, to be conducted by law enforcement or Punong
Barangay with the assistance of the local social welfare and development officer.)
2. In victimless crimes where the imposable penalty is not more than 6 years
imprisonment.
3. Where the imposable penalty of the crime committed exceeds 6 years
imprisonment, diversion measures may be resorted to only by the court.
Important note:

Just remember that System of Diversion applies to all crimes with NOT more than 6 years imposable
penalty. The child undergoes mediation, conferencing and conciliation. If more than 6 years, the court
decides. This is where there is no diversion. The Punong Barangay and the Law enforcement shall
forward the records of the case to the prosecutor or judge concerned for the conduct of inquest or
preliminary investigation. The records shall display the word “CHILD” in bold letters.

What transpires during the diversion proceedings?

Since during the conferencing, mediation and conciliation the child admits to the commission of the act,
such admission SHALL NOT BE used against the child in any subsequent judicial, quasi-judicial
proceedings.

Acceptance of the diversion program by the parents shall be in writing and signed by the parties and
appropriate authorities. The local social welfare development office supervises the implementation of the
diversion program. The diversion proceedings shall be completed within 45 days. The period of
prescription of the offense shall be suspended until the completion of the diversion proceedings but not to
exceed 45 days.

The child shall present himself/herself to the competent authorities that imposed the diversion program
at least once a month for reporting and evaluation of the effectiveness of the program. Failure to comply
with the terms and conditions of the contract of diversion, as certified by the local social welfare and
development officer, shall give the offended party the option to institute the appropriate legal action.

 If the offender is over 70 years of age, he is entitled to generic mitigating circumstance

only.

3. That the offender had no intention to commit so grave a wrong as that

committed.

Here, the facts should show that there is notable and evident disproportion between
the means employed to execute the criminal act and its consequences.

External acts may show that the accused intended the wrong committed: (determining
intent)
1. The weapon used.
2. The part of the body injured
3. Nature of the injury inflicted.
4. Manner of commission.
Example: The accused used a heavy club in attacking the deceased whom he followed
some distance, without giving him an opportunity to defend himself, it is to be believed
 that he intended to do exactly what he did and must be held responsible for the result,
without the benefit of this mitigating circumstance.

 Article 13 paragraph 3 is not applicable when the offender employed brute force.
 Lack of intention to commit so grave a wrong is mitigating in robbery with homicide
where the accused were not aware that the deceased was behind the door and would be
hurt when they were forcing entrance through the door with the use of pieces of
woods.
 Lack of intention to commit so grave a wrong is not appreciated in murder qualified by
treachery.
 In crimes against person who do not die as a result of the assault, the absence of the
intent to kill reduces the felony to mere physical injuries, but it does not constitute a
mitigating circumstance under Article 13, paragraph 3.
 The mitigating circumstance that the offender did not intend to commit so grave a
wrong as that committed was not appreciated in cases of defamation or slander. This
mitigating circumstance is only applicable to physical injuries or material harm.
 The mitigating circumstance that the offender did not intend to commit so grave a
wrong as that committed was appreciated in Malversation of public funds where the
accused admitted to the offense due to compelling needs and later restituted all that
have been misappropriated.

4. That sufficient provocation or threat on the part of the offended party

immediately preceded the act.

Provocation is any unjust or improper conduct or act of the offended party, capable of
exciting, inciting or irritating anyone.

Requisites:
1. That the provocation must be sufficient
2. That it must originate from the offended party; and
3. That the provocation must be immediate to the act

 Absent the requisites, then there is no provocation enough to warrant a mitigating

circumstance.

5. That the act was committed in the immediate vindication of a grave offense to the one
committing the felony (delito), his spouse, ascendants, or relatives by affinity within the same
degrees.

6. That of having acted upon an impulse so powerful as naturally to have produced passion or
obfuscation.
7. That the offender had voluntarily surrendered himself to a person in authority or his agents,
or that he had voluntarily confessed his guilt before the court prior to the presentation of the
evidence for the prosecution;

8. That the offender is deaf and dumb, blind or otherwise suffering some physical defect which
thus restricts his means of action, defense, or communications with his fellow beings.

9. Such illness of the offender as would diminish the exercise of the will-power of the offender
without however depriving him of the consciousness of his acts.

10. And, finally, any other circumstances of a similar nature and analogous to those above
mentioned.

Application of Penalty, case of People vs Magpantay: (Two mitigating circumstance with

NO aggravating circumstances)

In this case, Pedro, a guard killed one Pedro Pinion but right after ascertaining that he
shot killed an innocent man, he surrendered immediately to the barrio-lieutenant and then to
the chief of police.

Decision:

Pedro is entitled to the mitigating circumstance of grave fear but not uncontrollable fear. In
this case, the fear was not entirely uncontrollable, for had he not been so hasty and had he
stopped for a few seconds to think, he would ascertained that there was no imminent danger.
Consequently, there are two marked mitigating circumstances in favor of the accused.

When there are two or more mitigating circumstances and no aggravating circumstances are
present, the court shall impose the penalty next lower to that prescribed by law, in the period
that may be deemed applicable, according to the number and nature of such circumstances. In
view of the foregoing, the court found Pedro Magpantay guilty of homicide, with two very
marked mitigating circumstances, and modifies the judgment by imposing upon him the
penalty of six (6) months and one (1) day of prision correctional to six (6) years and one (1) day
of prision mayor.