This article answers the question on where to file and prosecute a criminal case involving a cybercrime.
The General Rule on Venue for Criminal Cases
The venue of crimes is jurisdictional. This means that a crime, as a general rule, can only be instituted and prosecuted in the place where the crime was committed or where any of its elements have occurred. If a criminal action is instituted in any other place, it will get dismissed. Section 15, Rule 110 of the Rules of Criminal Procedure in the Philippines defines the places where criminal complaints may be filed and instituted:
- Subject to existing laws, the criminal action shall be instituted and tried in the court of the municipality or territory where the offense was committed or where any of its essential ingredients occurred.
- Where an offense is committed in a train, aircraft, or other public or private vehicle while in the course of its trip, the criminal action shall be instituted and tried in the court of any municipality or territory where such train, aircraft or other vehicle passed during such its trip, including the place of its departure and arrival.
- Where an offense is committed on board a vessel in the course of its voyage, the criminal action shall be instituted and tried in the court of the first port of entry or of any municipality or territory where the vessel passed during such voyage, subject to the generally accepted principles of international law.
- Crimes committed outside the Philippines but punishable under Article 2 of the Revised Penal Code shall be cognizable by the court where the criminal action is first filed.
The Issue of Venue in a Cyber Crime
For cybercrimes, the matter of venue is not always clear-cut. This is because of the nature of a cybercrime. Cybercrimes or cyber offenses usually involve many factors, aside from the offended party or victim, and the offender or the culprit. The actions of one party can be done in one location, and made manifest in another. The actions of one party may be legal in his location, but criminal in nature in the place where the offender resides.
Worse, the servers where these actions are done, stored, processed, or transmitted, may be in other parts of the world. The actions of the offender may be considered as legal in his or her location, but criminal in nature in the place where the server is located. The reverse of this can be equally problematic.
Thus, sticking to the bricks and mortar definition of venue in traditional crimes, while helpful, may not always be enough.
The General Rule on Venue for Traditional Criminal Cases applied to Cybercrimes
Despite the ambiguity of its application, the general rule on venue can still be made to apply to cybercrimes. It says that subject to existing laws, the criminal action shall be instituted and tried in the court of the municipality or territory a) where the offense was committed, or b) where any of its essential ingredients occurred.
Applying Rules of Venue in Traditional Criminal Cases to Cybercrimes
Applied in relation to cybercrimes, this means that a criminal complaint involving a cybercrime can still be filed and tried in the court of the municipality or territory a) where the offense was committed or b) where any of its essential ingredients occurred. The term “essential ingredients” here refers to the elements constituting the crime. Thus, if for example, the person committed the crime of identity theft, and it was certain, supported by personal knowledge or evidence, that the offender was actually in a particular city or municipality in the Philippines in committing the offense, the general rule on venue can be applied, and the case can be filed in that particular city or municipality where the offender was physically located, because it is the place where the crime was actually committed.
Applying the First Rule of Venue in Traditional Criminal Cases to Cybercrimes
Likewise, the general rule on venue of traditional crimes makes use of a prefatory proviso – “subject to existing laws”.
This means that laws can likewise dictate where traditional crimes may be filed, tried, or instituted, even if done outside the place where the crime was actually committed. An example of this is the crime of traditional libel (as opposed to cyber libel), which states that libel may be tried and prosecuted in the place where the libelous article was first published, or where the offended party resides.
Obviously, if the publication is electronic, applying the first rule on venue, where the libelous article was first published, can be problematic. It can be problematic because publication in the traditional sense (i.e., a libelous newspaper article) would mean where the newspaper was first published. If the act of libel involves an electronic document, for example, a post in social media, publication may take on many meanings, i.e., “first viewed”, “first accessed”, or “seen”. In this world where any person can have simultaneous access to social media, it is almost impossible to determine where this place is.
Applying the Second Rule of Venue in Traditional Criminal Cases to Cybercrimes
The problem of determining where a cyber libel case may be filed and prosecuted is resolved by applying this second rule of venue in libel cases – where the offended party resides. It involves a simple and painless determination of where the offended party resides, and all other concerns, such as whether the offender is in another country which considers the act as not a criminal act, or where the publication was first accessed.
However, there are only a handful of these crimes which actually define the venue, for purposes of filing a criminal case. As for the rest of the acts punishable in the Revised Penal Code of the Philippines and other special penal laws, only the general rule of venue for traditional crimes is applied.
Specific Rule of Venue for Cybercrimes
The issuance by the Supreme Court of A.M. No. 17-11-03-SC otherwise known as the Rule on Cybercrime Warrants, is quite helpful in resolving the issue of venue, at least insofar as those cybercrimes defined and punished under Republic Act No. 10175 (“RA 10175”) and the Revised Penal Code.
The Rule on Cybercrime Warrants is not actually just a rule involving warrants that may be applied for cybercrimes and cyber offenses. It was indeed erudite for the Supreme Court to address the issue of venue in cybercrimes by introducing a provision on venue which finds specific application to cybercrimes.
Cybercrimes Covered by the Rule on Venue
The Rule on Cybercrime Warrants expressly applies to offenses punished under Chapter II of RA 10175, namely:
- Section 4 (Cybercrime Offenses), which includes Illegal Access, Illegal Interception, Data Interference, System Interference, Misuse of Devices, Computer-related Forgery, Computer-related Fraud, Computer-related Identity Theft, Child Pornography, Cyber libel
- Section 5 (Other Offenses), which includes Aiding or Abetting in the Commission of Cybercrime, Attempt in the Commission of Cybercrime
- Section 6, which includes all crimes defined and penalized by the Revised Penal Code, as amended, and other special laws, if committed by, through, and with the use of information and communications technologies.
The Rule on Cybercrime Warrants explicitly defines the venue of cybercrime cases. It provides that such cybercrimes shall be filed before the designated cybercrime courts of the province or city where the offense or any of its elements is committed, or where any part of the computer system used is situated, or where any of the damage caused to a natural or juridical person took place.
Two (2) Additional Rules of Venue for Cybercrimes
In addition to the general provision governing venue of traditional crimes, two (2) additional rules of venue for the filing and prosecution of cybercrimes were introduced by the Rule on Cybercrime Warrants, namely, a) where any part of the computer system used is situated, or b) where any of the damage caused to a natural or juridical person took place.
This means that if the offended party is unable to identify the physical location of the crime or the physical location where any element of the crime was committed, he or she can file the complaint in the province or city where the computer system used for the commission of the crime is physically located.
Where for example, the location of the computer system used for commission of the crime is likewise unknown, due to technical limitations, or even by overt act of the offender who used a virtual private network to hide his or her location, the offended party is not without remedy.
The simple solution to the problematic issue of venue is made available – the offended party may file and prosecute the criminal complaint in the province or city where the damage was caused.
About Nicolas and De Vega Law Offices
If you need assistance in cybercrime, civil or other criminal law-related issues, we can help you. Nicolas and de Vega Law Offices is a full-service law firm in the Philippines. You may visit us at the 16th Flr., Suite 1607 AIC Burgundy Empire Tower, ADB Ave., Ortigas Center, 1605 Pasig City, Metro Manila, Philippines. You may also call us at +632 84706126, +632 84706130, +632 84016392 or e-mail us at [email protected]. Visit our website https://ndvlaw.com.