Hostages and hostage-taking. We’ve heard these words in the unfortunate incident in the past few days. If the hostage-taker survives and he is charged in court, the formal designation of the charge will not be “hostage-taking”. Here is a basic discussion on the elements of hostage-taking, kidnapping, and serious illegal detention.

What is the crime of kidnapping and serious illegal detention?

The crime of kidnapping/serious illegal detention is punished under Articles 267 of the Revised Penal Code, as amended. The hostage-taker is properly charged with kidnapping or serious illegal detention. Article 267 (Kidnapping and serious illegal detention) provides that any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death:

• 1. If the kidnapping or detention shall have lasted more than three days.

• 2. If it shall have been committed simulating public authority.

• 3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained, or if threats to kill him shall have been made.

• 4. If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female, or a public officer.

The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances above-mentioned were present in the commission of the offense.

When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture or dehumanizing acts, the maximum penalty shall be imposed.

What are the elements of kidnapping or serious illegal detention?

The elements of kidnapping or serious illegal detention are:

• 1. That the offender is a private individual.

• 2. That he kidnaps or detains another, or in any other manner deprives the latter of his liberty.

• 3. That the act of detention or kidnapping must be illegal.

• 4. That in the commission of the offense, any of the following circumstances is present: (a) That the kidnapping or detention lasts for more than five (5) days; or (b) That it committed simulating public authority; or (c) That any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or (d) That the person kidnapped or detained is a minor, female, or a public officer.

What if there’s kidnapping or detention but  none of the circumstances in Article 267 is present?

If any private individual kidnaps or detains another, or in any other manner deprive him of his liberty, but without any of the four circumstances mentioned in Article 267, the crime is slight illegal detention. This is covered under Article 268 of the Revised Penal Code.

What if the act is committed by a public officer?

The two articles mentioned above mention a “private individual”. Arbitrary detention, punished under Article 124 of the Revised Penal Code, is committed by any public officer or employee who, without legal grounds, detains a person. It is still essential that there is actual confinement or restriction of the person of the offended party. The deprivation of liberty must be proved, just as the intent of the accused to deprive the victim of his liberty must also be established by indubitable proof. There must be uncontroverted proof of both intent to deprive the victim of his liberty, as well as actual confinement or restriction.

The public officer must have the authority to detain or arrest a person, including police officers, agents of the National Bureau of Investigation (NBI) and other agents of the law. Otherwise, the act is serious illegal detention.

What are the elements of the crime of Arbitrary Detention?

The elements are as follows:

• (1) That the offender is a public officer or employee;

• (2) That he detains a person; and

• (3) That the detention is without legal grounds.

What if there is no proof of detention?

In once case, there was no proof that the accused wanted to detain the victim, or that the accused actually detained the victim, so there was no kidnapping or serious illegal detention. However, the accused was still found criminally liable for Grave Coercion. There was no showing of actual confinement or restraint of the victim, which is the primary element of kidnapping. The accused and the victim were constantly on the move. There was no “lockup”(the original Spanish term is “encerrar” which means “lockup”). Lockup refers not only to the placing of a person in an enclosure which he cannot leave, but also to any other deprivation of liberty which does not necessarily involve locking up.

What if the detention lasted only a few hours?

If any of the other three (3) circumstances, it would still be kidnapping or serious illegal detention. In one case, the detention lasted for only a few hours, but this is immaterial because the victims were public officers — a fiscal analyst, a worker at the City Engineer’s Office, and a barangay councilman. This falls under the fourth circumstance enumerated in Article 267.

What if there’s a demand for ransom?

This is still subsumed under kidnapping, although this is commonly called “kidnapping for ransom”. If the purpose is to demand for ransom, even if none of the other circumstances is present, the offense is still kidnapping and the imposable penalty is death. The penalty of death, however, is no longer allowed under Philippine laws. See In Memory of the Death Penalty.

What is “ransom”?

“Ransom” has been held to mean in its ordinary sense as “money, price or consideration paid or demanded for redemption of a captured person or persons, a payment that releases from captivity.” If there’s a demand for money as a requisite for releasing a person from captivity, that money is still ransom under the law, regardless of other motives.

(Sources: People vs. Kulais, G.R. No. 100901, 16 July 1998; People vs. Astorga, GR No. 110097, 22 December 1997; People vs. Flores, G.R. No. 116488, 31 May 2001; People vs. Akiran, G.R. No. L-18760, 29 September 1966)