REPUBLIC OF THE PHILIPPINES
DEPARTMENT OF JUSTICE
NATIONAL PROSECUTION SERVICE
Manila
RODOLFO NOEL I. LOZADA,
Complainant,
- versus -
I.S. No. 2008-162
FOR: KIDNAPPING/
SEC. JOSE ATIENZA, ET. AL.,
ARBITRARY DETENTION
Respondents.
& ATTEMPTED MURDER
x ---------------------------------------------------------------------------------- x
COMPLAINANT’S MEMORANDUM
COMES NOW ENGINEER RODOLFO NOEL I. LOZADA, by counsel,
to this Department respectfully states that:
I.
The evidence in this case speaks for itself; and it speaks volumes
about what really happened to Engineer Rodolfo Lozada when he arrived
at the Ninoy Aquino International Airport on 5 February 2008:
Fact: The man who met Engineer Lozada at the tube
after he deplaned, who took custody of Engineer Lozada’s
passport, brought him to a waiting car and “secured” him for
the next several hours was not a government official or
employee but a civilian whose job had nothing to do with
securing a VIP:
SP MANGALINDAN: Mr. Valeroso in your affidavit you [said that you] are
an action agent, Aviation Security Group of the PNP…xxx… Ano po (ang)
ibig sabihin ng ACTION AGENT?
VALEROSO: Bilang action agent ang trabaho ko po ay mag-gather ng
information kung ano ang crime na kinasasangkutan.
X x x
Bilang isang action agent ng Aviation Security Group naiatasang po sa
akin na information [sic] at kolektahin ‘yong tungkol sa illegal activities
sa airport po.1
1
Transcript of Stenographic Notes (TSN), Rodolfo R. Valeroso, 15 September 2008, pp. 12, 13 and 14.
2
Xxx
SP MANGALINDAN: So, ang tanong ko ho uli linawin po natin ‘yong
pagiging action agent ano po…xxx…empleyado po ba kayo ng gobyerno?
VALEROSO: Hindi po.
SP MANGALINDAN: So, organic member po ba kayo no Avsti [sic
Aviation Security Group]?
VALEROSO: Hindi po.2
Xxx
SP MANGALINDAN: So, nang nasa opisina na po kayo ni General
Atutubo, ano po (ang) sinabi ni General Atutubo?
VALEROSO: Ah, nag-produce siya ng passes para sa amin at sinabihan
niya ako na lang po ang salalubong duon sa sasalubungin …3
X x x
SP MANGALINDAN: Paglabas po sa eroplano hanggang saan po daw
‘yong sasamahan bilang pagsalubong?
VALEROSO: Hanggang sa pagsakay po sa sasakyan.4
X x x
SP MANGALINDAN: So, sinabi rin po ninyo dito sa affidavit ninyo na
sumakay si Mr. Lozada sa likurang bahagi at inilagay ninyong ‘yong
gamit sa trunk at sumakay kayo sa unang bahagi ng sasakyan. Tama po
ba iyon?
VALEROSO: Opo.
SP MANGALINDAN: Kanino pong instruction iyon na kayo po ay sasakay
sa unang bahagi ng sasakyan?
VALEROSO: Nang tumawag po kay Col. Mascarinas, po, sinabihan po
niya ako na sumama na po ako.5
Xxx
CP E.F. DELOS SANTOS: My question is, as team leader you were in
control of the other vehicles, you were riding in one (1) of the vehicles, di
ba? You have to make sure that Mr. Lozada was secured? You said you
saw him, Mr. Lozada, enter the Altis?
P/SUPT. MASCARIÑAS: Yes, Your Honor.
CP E.F. DELOS SANTOS: And Valeroso enter(ed) the Altis?
P/SUPT. MASCARIÑAS: Yes, Your Honor.
2
Id. Valeroso TSN at pp. 75-76.
Id. at p. 25.
4
Id. at pp. 29-30.
5
Id. at pp. 33-34.
3
3
CP E.F. DELOS SANTOS: Where did Valeroso get instructions for him to
go with Mr. Lozada inside that car?
P/SUPT. MASCARIÑAS: I told him, Your Honor, if you have nothing to do
join us..
CP E.F. DELOS SANTOS: If he has nothing to do?6
Fact:
When this civilian--respondent RODOLFO R.
VALEROSO—met Engineer Lozada at the tube, he introduced
himself as “..si Rod na taong pinadala ni Secretary Atienza
na susundo sa inyo.”7
Xxx
SP AZARCON:Paki-ulit nga po ‘yong eksaktong sinabi po ninyo kay Mr.
Lozada.
VALEROSO: Sir, good afternoon po, ako si Rod na taong pinadala
ni Secretary Atienza na susundo sa inyo.8
Xxx
SP MANGALINDAN: Bakit ang sinabi ninyo po na ako ang taong pinadala
ni Secretary Atienza?
VALEROSO: Kung ako po ‘yong inutusan ni General Atutubo kaya
nagpakilala po ako ‘yong taong sasalubong sa kanya.
SP MANGALINDAN: Sino po ang nagbigay sa inyo ng instruction na
ipakilala po ay…o paano po nangyari na nabanggit ninyong pangalan at
nagpasundo sa kanya ay kakilala niya ay si Secretary Atienza?
VALEROSO: Iyon po ang instruction sa akin ni Col. Mascariñas ma’am.9
Fact: Respondent VALEROSO was a lowly civilian agent
who had no background, training or qualifications in security
or police work—and yet he was the one entrusted with
securing Engineer Lozada:
SP MANGALINDAN: So, may pagkakatulad po ba ‘yong action agent sa
civilian agent?
VALEROSO: Meron po.
6
TSN, P/Supt. Paul Mascariñas, 26 August 2008, p. 130.
Id., Valeroso TSN at p. 46.
8
Id. at p. 46.
9
Id. at p. 45.
7
4
SP MANGALINDAN: E, parang ganun po ba may pagkakatulad po ba ang
nature.
VALEROSO: Opo.
SP MANGALINDAN: So, paano ba na recruit ‘yong isang action agent,
alam po ba ninyo kung ano ang mga qualification para maging isang
action agent…?
VALEROSO: Ang mga qualification po ay kung saan po merong alam na
magathered na information ‘yong taong narecruit na action agent.
X x x
SP MANGALINDAN: Walang test, walang educational attainment?
VALEROSO: Wala po.
SP MANGALINDAN: Wala pong exam…wala pong mga civil service?
VALEROSO: Wala po.10
Fact: While respondents, from the start, claimed that
Engineer Lozada was a “VIP” and that they acted by the book
when they secured him, their very own testimonies show that
they were in such a rush to get Engineer Lozada out of the
airport that they ignored Immigration and Customs; did not
even bother to have Lozada’s passport stamped to indicate his
arrival in Manila; and brought him straight to a waiting car:
SP LADAGA: And Jun Lozada is considered VIP at that time?
P/SUPT. MASCARIÑAS: Yes, Your Honor.
SP LADAGA: Why do you consider him as VIP?
P/SUPT. MASCARIÑAS: Lahat naman ng sini-secure naming, Your
Honor, we considered VIP’s…11
Xxx
SP MANGALINDAN: So, sabi po ninyo ‘nong iniabot po ni Mr. Lozada
‘yong passport sa inyo. Ano po ginawa ninyo sa passport?
VALEROSO: Inilagay ko po sa bulsa ng aking damit.
SP MANGALINDAN: Ah, napatatakan ninyo po ba [ito]..sa Immigration?
VALEROSO: Hindi po.
10
11
Id. at pp. 76-79.
TSN, P/Supt. Paul Mascariñas, 26 August 2008, p. 114.
5
SP MANGALINDAN: Bakit po hindi?
VALEROSO: Wala pong instruction sa akin.
SP MANGALINDAN: Walang instruction sa inyo, pero alam po ninyo
usually dumadaan sa Immigration ang isang pasahero nakakarating
lamang.
VALEROSO: Opo.
SP MANGALINDAN: Pero hindi ninyo idinaan [si Mr. Lozada].
VALEROSO: Sa kadahilanang nakababa na po kami sa elevator at
sumakay na po kami kaagad. 12
Fact:
While
Engineer
Lozada
had
pleaded
with
respondents to take him home from the airport, respondents
decided--on their own, without consulting him, and without
giving him any say in the decision--to take him elsewhere:
CP DE LOS SANTOS: Towards Pasig, but during that time, you don’t
know where to yet?
P/SUPT. MASCARINAS: No, Your Honor. I told Halog to ask Lozada, to
ask him where he wanted to go. And Halog told me he wants to go to
Pasig, to his family.
CP DE LOS SANTOS: He wants to go to Pasig? Why did you bring him to
South Luzon Expressway?
P/SUPT. MASCARINAS: Because, Your Honor, before arriving at
Kalayaan junction, we heard at the a.m. (sic) radio about the media was
already there Your Honor, so sensing its security risk, I decided to turn
around and travel for a while…xxx
CP DE LOS SANTOS: Did you not asked (sic) Mr. Lozada what he wanted
to do? As there were media people in his house in Pasig?
P/SUPT. MASCARINAS: No, Your Honor.13
FACT: Respondents not only refused to take Engineer
Lozada home, they also told him he could not use his cell
phone:
SP MANGALINDAN: Puwede bang paki-ulit paanong paki-usap ang
ginawa mo kay Mr. Lozada at paano ang pagkakasabi mo kay Mr. Lozada
na tigilan na niya ‘yong pagtetext o pagtatawag.
VALEROSO: “Sir, baka po pwede pong tigilan po muna natin ‘yong
patetext.”
12
13
Id. Valeroso TSN at p. 81-83.
Id., Mascariñas TSN at pp. 61-62.
6
Xx x
SP MANGALINDAN: So, pagkaka-alam ninyo hindi na niya ginamit ‘yong
cellphone niya.
VALEROSO: Opo.
SP MANGALINDAN: So, sa puntong saan ninyo pinaki-usapan si Mr.
Lozada na tigilan na niya ang pagtawag at pagtetext na approximately,
nasaan po kayo sa biyahe ninyo?
VALEROSO: Nasa South Expresss Way po.14
Fact: While VALEROSO testified that as an action agent
of the Aviation Security Group his jurisdiction was confined to
the airport, he not only escorted Engineer Lozada to a waiting
car but rode in the same car and stayed with Lozada for the
next several hours, in a road trip that took them from the
airport to C-5 Road all the way to Calamba, Laguna:
SP AZARCON: Bilang miyembro ng Aviation Security Group saan ‘yong
eksaktong jurisdiction ninyo sa airport lang ba o pwede kahit sa labas?
VALEROSO: Sa airport po.
SP LADAGA AND SP MANGALINDAN: Hanggang airport.
SP AZARCON: Kahit na hanggang airport lang sinunod mo na sinabi
dahil sa utos ni General Morada.
VALEROSO: Opo.15
X x x
SP LADAGA: Ah, Mr. Valeroso, can you tell us…what place did you go to,
after riding in [the] car were [sic-where] Mr. Lozada was also, hanggang
saan kayo Mr. Valeroso?
VALEROSO: Hanggang sa Outback po.
SP LADAGA: From the airport you went directly to Outback?
VALEROSO: Hindi po.
SP LADAGA: Where?
VALEROSO: Ah, nagpunta po kami sa South Luzon Express Way po.
SP LADAGA: Ah, at what point? Saang area from SLEX?
14
15
Id. Valeroso TSN at pp. 68-72.
Id. at p. 47.
7
VALEROSO: Ah, hanggang Calamba exit po.16
Fact: While respondents claimed that Engineer Lozada
consented to the operation, their testimonies during the
clarificatory hearings show that they—not Engineer Lozada—
were the ones who controlled Lozada’s movements, decided
where he could and could not go, and who he could talk to:
CP E.F. DELOS SANTOS: The moment you had Mr. Lozada inside the
Altis, did you report to anybody?
P/SUPT. MASCARIÑAS: Yes, Your Honor.
CP E.F. DELOS SANTOS: To whom did you report?
P/SUPT. MASCARIÑAS: General Hilomen, Your Honor, an hour past.
Xxx
CP E.F. DELOS SANTOS: And what was your report to him?
P/SUPT. MASCARIÑAS: Sinabi ko, Your Honor, na I already have the VIP
and were proceeding towards Pasig.
CP E.F. DELOS SANTOS: Towards Pasig, but during that time, you don’t
know where to yet?
P/SUPT. MASCARIÑAS: No, Your Honor, I told Halog to asked (sic)
Lozada, to ask him where he wanted to go. And Halog told me he wants
to go to Pasig, to his family.
CP E.F. DELOS SANTOS: He wants to go to Pasig? Why did you bring
him to South Luzon Expressway?
P/SUPT. MASCARIÑAS: Because, Your Honor, before arriving at
Kalayaan junction, we heard at the a.m. (sic) radio about the media was
already there Your Honor, so, sensing its security risk, I decided to turn
around and travel for a while. Before Jun could have chosen another
place, safer place to go.
CP E.F. DELOS SANTOS: Did you not asked (sic) Mr. Lozada what he
wanted to do? As there were media people in his house in Pasig?
P/SUPT. MASCARIÑAS: No, Your Honor.
CP E.F. DELOS SANTOS: You on your own as team leader decided to
direct the two (2) vehicles to go South towards Calamba?
P/SUPT. MASCARIÑAS: Yes, Your Honor.17
Xxx
16
17
Id., Valeroso TSN at pp. 59-60.
Id., Mascariñas TSN at pp. 60-62.
8
CP E.F. DELOS SANTOS: Who gave the direction for them to continue
going further?
P/SUPT. MASCARIÑAS: I did, Your Honor.18
X x x
CP E.F. DELOS SANTOS: Why did you tell them to go further when you
stop(ped) at Alabang?
P/SUPT. MASCARIÑAS: Because I was instructed by General Hilomen to
turn around because a certain Atty. Bautista will be meeting me, Your
Honor.19
Xxx
CP E.F. DELOS SANTOS: You were always briefed and informed of their
location?
P/SUPT. MASCARIÑAS: Yes, Your Honor, through radio, Your Honor.20
Xxx
CP E.F. DELOS SANTOS: …what instructions did you give them when
they reached Calamba?
P/SUPT. MASCARIÑAS: When they reached Calamba, Your Honor, I was,
since I already talked to Atty. Bautista, and he told me that he wants to
meet Jun Lozada, so, I instructed Halog to turn around and proceed to
the Outback, w(h)ere he (Jun Lozada) would meet Atty. Bautista.21
Fact: Respondents MASCARINAS, HILOMEN, ATUTUBO,
RAZON and ATIENZA were monitoring Engineer Lozada’s
movements from the time he deplaned. They knew what
VALEROSO was doing every step of the way:
SP LADAGA: Linawin ko lang Mr. Valeroso ng time na sumalubong ka sa
tube kay Mr. Lozada you were alone?
VALEROSO: Ang napansin ko ako po tapos po ‘yong sasalubong. Ang
nakita ko po ay (si) General Atutubo, sir.
Xxx
SP LADAGA: On the way from the tube you meet (sic) General Atutubo?
VALEROSO: Hindi po, pagkatayo ko po sa harap ng eroplano nanduon
na po si General Atutubo.22
X x x
18
Id. at p. 51.
Id. at p. 51.
20
Id. at p. 54.
21
Id. at p. 55.
22
Id., Valeroso TSN at pp. 57-58.
19
9
SP LADAGA: Then, dumaan pa kayo sa CR kamo? Duon sa 3 rd floor
before you going (sic) to the elevator?
VALEROSO: Pagkadating ko po sa may CR nakita ko na po sila ruon.
SP LADAGA: Sinong sila?
VALEROSO: Sina General Atutubo po na nakatayo po say may pintuan
ng CR.23
Xxx
CP E.F. DELOS SANTOS: Did you see Mr. Lozada get in the Altis?
P/SUPT. MASCARIÑAS:
Yes, Your Honor.
CP E.F. DELOS SANTOS: Who was with him?
P/SUPT. MASCARIÑAS: General Atutubo, Your Honor and the others.
X x x
CP E.F. DELOS SANTOS: Who are the people who get (sic) inside the
Altis?
P/SUPT. MASCARIÑAS: Jun Lozada, Valeroso and Halog, Your Honor.24
X x x
CP E.F. DELOS SANTOS: The moment you had Mr. Lozada inside the
Altis, did you report to anybody?
P/SUPT. MASCARIÑAS:
Yes, your Honor.
CP E.F. DELOS SANTOS: To whom did you report?
P/SUPT. MASCARIÑAS:
General Hilomen, Your Honor, an hour past.
CP E.F. DELOS SANTOS: And what was your report to him?
P/SUPT. MASCARIÑAS:
Sinabi ko, your Honor, na I already have the
VIP and we are proceeding towards Pasig.25
X X X
“(v) At around 5:30 p.m., Police Chief Superintendent Hilomen
informed me that Rodolfo Noel I. Lozada, Jr. arrived at the NAIA; that he
is already provided with the requested police assistance; and that he is in
transit. I relayed this information to DENR Secretary Atienza and
provided him with the cellular phone number of Police Chief
Superintendent Hilomen.”
--Counter-affidavit of Respondent AVELINO RAZON
subscribed on 15 February 2008, at p. 3.
II.
23
TSN, Valeroso, 15 September 2008, p. 64.
TSN, Mascariñas, 26 August 2008, pp. 44-45.
25
Id., Mascariñas at pp. 60-61.
24
10
Now that the real facts about the arrival and taking of Engineer
Lozada have come to light, it is easier to see what really happened on 5
February 2008:
1.
Respondents made RODOLFO VALEROSO the point
man
of
the
entire
operation
precisely
because
VALEROSO was a civilian.
As a civilian, VALEROSO was both deniable and
expendable.
2.
Respondents’ main objective on February 5, 2008 was
not to escort and secure a VIP—which would have
required them to process Engineer Lozada’s travel
documents properly—but rather to get him physically
out of the airport premises and into respondent
Mascarinas’ car as soon as possible.
This explains why the respondents brought Engineer
Lozada out of the airport through the backdoor, and
did not bother passing through Immigration and
Customs or having Lozada’s passport stamped.
3.
Respondents controlled Engineer Lozada’s movements
and decided where he could and could not go. Despite
Lozada’s pleas to be brought home, respondents
decided they could not take him home because the
presence of the media at his residence allegedly posed
a “security risk.” Instead, they brought Lozada to
Calamba, Laguna and then to Outback—places he did
not wish to go--to meet with a lawyer, Atty. Bautista,
whom he did not know and did not wish to see.
11
4.
Engineer Lozada never did get home—and he has not
been able to go home since.
III.
It is settled law that any imposition or restraint on one’s
liberty, even for a short period of time, is criminally actionable:
“Even if the persons detained could move freely
in and out of their prison cell and could take their
meals outside the prison, nevertheless, if they were
under the surveillance of the guards and they could
not escape for fear of being apprehended again, there
would still be arbitrary detention.”
--LUIS B. REYES, CRIMINAL LAW, Vol. II, p. 42, citing
People v. Camerino, CA-G.R. No. 14207-R, Dec. 14,
1956.
X x x
“In the case of U.S. v. Braganza, 10 Phil. 79, a
councillor and a barrio lieutenant were convicted of
arbitrary detention, even if the offended party was
detained for less than half an hour; and in the case of
U.S. v. Agravante, 10 Phil. 46, the detention was only
for one hour.”
– LUIS B. REYES, CRIMINAL LAW, Vol. II, p. 50.
X x x
“In the case of People v. Cortez, 381 Phil. 345
[2000]; citing People v. Dela Cruz, 342 Phil. 854 [1997]
and People v. Ramos, 358 Phil. 261 [1998], we held
that, in establishing the intent to deprive the victim of
his liberty, it is not necessary that the offended party
be kept within an enclosure to restrict her freedom of
locomotion. At the time of her rescue, the offended
party in said case was found outside talking to the
owner of the house where she had been taken. She
explained that she did not attempt to leave the
premises for fear that the kidnappers would make
good their threats to kill her should she do so. We
ruled therein that her fear was not baseless as the
kidnappers knew where she resided and they had
earlier announced that their intention in looking for
her cousin was to kill him on sight. Thus, we
concluded that fear has been known to render people
immobile and that appeals to the fears of an
individual, such as by threats to kill or similar threats,
are equivalent to the use of actual force or violence.
12
The prevailing jurisprudence on kidnapping
and illegal detention is that the curtailment of
the victim’s liberty need not involve any physical
restraint upon the victim’s person. If the acts and
actuations of the accused can produce such fear in
the mind of the victim sufficient to paralyze the
latter, to the extent that the victim is compelled to
limit his own actions and movements in
accordance with the wishes of the accused, then
the victim is, for all intents and purposes, detained
against his will.
In the case at bar, the restraint resulting
from fear is evident. Inspite of their pleas, the
witnesses and the complainants were not allowed
by petitioner to go home. This refusal was quickly
followed by the call for and arrival of almost a dozen
"reinforcements," all armed with military-issue rifles,
who proceeded to encircle the team, weapons pointed
at the complainants and the witnesses. Given such
circumstances, we give credence to SPO1 Capoquian’s
statement that it was not "safe" to refuse Mayor
Astorga’s orders. It was not just the presence of the
armed men, but also the evident effect these gunmen
had on the actions of the team which proves that fear
was indeed instilled in the minds of the team
members, to the extent that they felt compelled to stay
in Brgy. Lucob-Lucob. The intent to prevent the
departure of the complainants and witnesses
against their will is thus clear.
--Astorga v. People, G.R. No. 154130, 1 October 2003.
Engineer Lozada, like the complainants in the Astorga
case, pleaded with respondents to be brought home.
Despite his pleas, he was not allowed to do so. Instead,
he was taken to places he did not wish to go. The
intent to prevent Engineer Lozada from going where he
wanted to, to restrict his liberty and freedom of
movement, is clear. Respondents not only deprived
Engineer Lozada of his rights to liberty and security,
they actually controlled and restricted his movements.
Thus, for all intents and purposes, Engineer Lozada
was detained against his will.
13
The crime of arbitrary detention, moreover, may be
committed through reckless imprudence (People v.
Misa, C.A. 36 O.G. 3496; LUIS B. REYES, CRIMINAL
LAW, Vol., II, pp. 49-50. This means that even if the
Investigating Panel finds that respondents ATUTUBO,
HILOMEN, MASCARIÑAS, RAZON and ATIENZA acted
in good faith or without malice, they can still be held
liable
for
arbitrary
detention
thru
reckless
imprudence.
The
foregoing,
in
complainant’s
humble
view,
abundantly support the filing of criminal charges
against all of the respondents.
Prayer
WHEREFORE,
foregoing
premises
considered,
complainant
respectfully prays that his complaint and supplemental complaint be
given due course; and that criminal charges of arbitrary detention,
kidnapping, attempted homicide or such other appropriate charges be
filed against the respondents.
RESPECTFULLY SUBMITTED.
Quezon City for Manila, 8 October 2008.
FREE LEGAL ASSISTANCE GROUP
[FLAG]
Counsel for Engr. Rodolfo Noel Lozada
Room 101, Alumni Center, Magsaysay Avenue
University of the Philippines Campus
Diliman 1101 Quezon City
14
By:
JOSE MANUEL I. DIOKNO
SC Roll No. 35394
PTR No. A-9768628, 01-04-08, QC
IBP Lifetime No. 00236, 02-09-95, Pasig City
MCLE Compliance No. II - 0003087
Copy Furnished:
Atty. Melchor Monsod
Counsel for Secretary Jose “Lito” Atienza
Hobbies of Asia LA 12B
Lifestyle City 2, No. 8D
Macapagal Blvd., Pasay City
Atty. Felisberto L. Verano, Jr.
Counsel for PNP Gen. Avelino Razon, Jr.
Sr. Supt. Paul Mascariñas
SPO2 William C. Quilalan
SPO3 Lou DP Ochea
SPO2 Glicerio Gallinera
SPO1 Jose Batotoc
SPO2 Nelson Malto
SPO2 Jaime S. Halog
Unit 5-C, 5F Raha Sulayman Building
108 Benavidez St., Legaspi Village
Makati City
Atty. Joven Siazon Lorenzo
Counsel for Brig. Gen. (Ret.) Angel Atutubo
Lazaro Law Firm
Suite 2202-A, East Tower
Philippine Stock Exchange Centre
Exchange Road, Ortigas Center
Pasig City
Atty. Eric C. Santos
Counsel for Mr. Rodolfo Valeroso
Santos Law Office
3201-B, East Tower
Philippine Stock Exchange Centre
Exchange Road, Ortigas Center
Pasig City
Atty. Lilian Ramiro
Counsel for Chief Supt. Romeo Hilomen
31 Moncada St., BF Homes
Quezon City