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BY GLENDA SOLOGASTOA
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Monday, December 19, 2016
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ILOILO – The general manager of a shipping firm should be held liable for violation of Presidential Decree 1829 or obstruction of justice relative to the death of ship cadet Felipe Borra III of Sara town, according to the Office of the Provincial Prosecutor.
However, the provincial prosecutor dismissed the criminal complaint “accessory to the crime of murder” filed against some ship crew and officers of Fil-Star Maritime Corp., including the general manager, Victorio Milallos.
Borra died at sea aboard MV Sanko Fortune that was on its way to Singapore from South America on March 20, 2015.
Borra’s mother Marilyn believed her son was killed. On June 18 she charged before the Provincial Prosecutor’s Office as accessory to murder MV Sanko Fortune’s Captain Bernabe Siro, Chief Officer Armando Purificacion, Third Officer Michael Kent Pajulas, and crewman Kevin Gan.
She also charged with obstruction of justice the management and Board of Directors of the Philippine-based manning agency Fil-Star Maritime Corp., including Milallos.
Milallos personally informed the Borra family of the death. He told them the cadet committed suicide by hanging himself from a coat hook using a belt around his neck.
The 20-page joint resolution approved by Provincial Prosecutor Ma. Elena Hofileña-Gerochi dated Nov. 29, 2016 was received by Atty. Emmanuel S. Brotarlo, legal counsel of the Borra family, just this Dec. 13.
The provincial prosecutor cited its “lack of jurisdiction” in dismissing the criminal complaint “accessory to the crime of murder”, stressing that the death of Borra happened outside the territorial jurisdiction of the Philippines.
“…it is the government of Liberia and not us that has the right, duty and authority to investigate and determine whether a crime was committed anent the death of Felipe, and if so, what particular crime was perpetrated,” read part of the resolution.
MV Sanko Fortune is registered in Liberia. International law requires that every merchant ship be registered in a country, called its flag state. A ship is bound to the law of its flag state.
A ship’s flag state exercises regulatory control over the vessel and is required to inspect it regularly, certify the ship’s equipment and crew, and issue safety and pollution prevention documents.
“If we would delve into these matters we would in effect be encroaching upon the exclusive sovereign right and authority of the government of Liberia to look into these matters. The government agencies of a country, more particularly its courts, cannot execute the penal laws of another,” added the resolution.
The provincial prosecutor cited the case US vs Mendoza: “It is settled that the responsibility of the accessory after the fact is subordinate to that of the principal in a crime, because the accessory’s participation therein is subsequent to its commission, and his guilt is very directly related to the principal delinquent in the punishable act. If then the facts alleged are not proven in the prosecution instituted, or do not constitute a crime, no legal grounds exist for convicting a defendant as an accessory after the fact of a crime not perpetrated.”
The provincial prosecutor further said that since they could not ascertain if a crime was committed or what particular offense was committed, it follows that no accessory crime arising from the said principal crime could be prosecuted here.
“How can we file the accessory crime if its principal crime could not be ascertained in the first place? It would be absurd to file an information against the respondents as accessories to a crime that is not determinable. Section 6, Rule 110 of the Revised Rules of Criminal Procedure requires the designation of an offense given by the statue in order that the complaint or information to be considered sufficient,” it added.
Meanwhile, in dismissing the complaint for obstruction of justice against other officers of the shipping company, the provincial prosecutor of Iloilo ruled that there was no sufficient evidence against them, and that it had no jurisdiction over the crime charged as regards the members of the crew in the foreign vessel.
PARTIAL VICTORY, MOTION FOR RECONSIDERATION
For the Borra family, however, this is not the end of their quest for justice.
According to Brotarlo, they will file a partial motion for reconsideration on the dismissal of the complaints “accessory to the crime of murder” and obstruction of justice filed against the rest of the respondents. They have 15 days from Dec. 13 to do so.
“We believe that all the respondents are liable…also, the ship’s crew including the responsible officers of the corporation shall likewise be charged for obstruction of justice,” Brotarlo said.
The Borra family believed there was conspiracy among the respondents.
“Regardless of where the crime was committed, concealment transpired in Sara, Iloilo so there is jurisdiction over the crime charged,” Brotarlo stressed.
“But regarding the indictment of Millalos, we are expecting that an information will be filed in the Municipal Trial Court of Sara, Iloilo where the crime was committed,” he added.
Brotarlo emphasized that even the provincial prosecutor admitted in the resolution that there was indeed foul play.
“I considered the resolution a partial victory. The public prosecutor believed there was indeed a crime committed in the foreign vessel, that there was foul. Borra did not commit suicide and his injuries were not self-inflicted,” said Brotarlo.
On Millalos’ indictment, Brotarlo said this meant the provincial prosecutor believed there was concealment of a crime.
“This is therefore a partial victory for the Borra family,” he stressed./PN
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