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Republic of the Philippines

REGIONAL TRIAL COURT


NATIONAL CAPITAL JUDICIAL REGION
Branch 98
Quezon City
PEOPLE OF THE PHILIPINES,
Plaintiff,
- versus -

Criminal Case No. RQZN-15-11359-CR


ALEXANDRO VARGA
For: VIOL. OF SEC. 9(F)
a.k.a Gabriel, John, 24 years old,
Male, single, Romanian National OF RA 8484
And temporary billeted at
Marriot Hotel
MILAH KARMILAH
a.k.a Milah Karnah, 25 years old,
female, single Indonesian National
and temporary billeted at
Marriot Hotel
Accused.
x------------------------------------------------x

MOTION TO ISSUE AN ORDER OF RELEASE


ADDRESSED TO THE BUREAU OF
IMMIGRATION
ACCUSED, through counsel, and unto this Honorable
Court, most respectfully avers:
1.

That Based on Police Records, the accused were


arrested and detained since December 13, 2015 at QCPD
Kamuning Police station 10 and the cases were referred to
the Honorable City Prosecutor on December 14, 2015.

2.

Thereafter, the case was docketed for inquest with


reference XV-03-INO and the Office of the City Prosecutor
rendered a resolution recommending the filing of the said
charges and setting the amount of Bail for their
provisional liberty.

3.

That on December 15, 2015 an information was filed


before this Honorable Court charging both accused of
violating Section 9 (F) of RA 8484 otherwise known as the
Access Device Law.

4.

That it is respectfully submitted before this Honorable


Court that the application for Bail was filed before and
issued by Honorable Executive Judge Fernando T. Sagun,
Jr. of Regional Trial Court Quezon City Branch 78 on
December 28, 2015 due to the unavailability of Judges
during the said date.

5.

Thus, On December 29, 2015 the accused was allowed


to post Bail for their temporary release pending the
hearing of this Case and an Order of Release was issued
by the Honorable Executive Judge Fernando T. Sagun, Jr. of
Regional Trial Court Quezon City Branch 78. Copy of the
said Order is herein attached as Annex A.

6.

That despite such Order of Release, which was served


the same day at around 3:00 PM, The Police Officers
acting under the direct instruction from the Station
Commander PSUPT. Pedro T. Sanchez of Quezon City Police
District (QCPD) Station 10 at Kamuning, EDSA, Quezon
City refused to release the accused.

7.

That instead of complying with the said Order and


absent any directives from the Honorable Court for any
lawful causes to continuously detain the accused, the
Police Officers turned over the persons of the accused
before the Bureau of Immigration Detention Center Camp
Bagong Diwa, Bicutan, Taguig City at around 7:00 PM.
Copy of the Police Report regarding the turn over of the
accused is herein attached as Annex B.

8.

That the said transfer of custody, was made pursuant to


a faxed copy of a Commitment Order which was
received by the Police Station at around 6:00 PM from the
Bureau of Immigration dated December 29, 2015 and
signed by the Chief of the Legal Division. Copy of the said
Commitment Order and Charge Sheet is herein attached
as Annexes C and D for reference.

THE COMMITMENT ORDER


ISSUED BY THE BID IS NOT IN
ACCORDANCE
WITH
SBM2014-046 AND THE SAME
2

SHOULD NOT HAVE DIVESTED


THE
COURT
OF
ITS
JURISDICTION
OVER
THE
CUSTODY OF THE ACCUSED
9.

With respect to the issuance of the said Commitment


Order which was used as the basis of the Police Officers
for turning the custody of the accused before the Bureau
of Immigration, it is respectfully submitted that the same
is not in accordance with BID Operations Order No. SBM2014-046 dated September 25, 2014 otherwise known as
the
Manual
of
Operation
for
Processing
Arrested/Intercepted Foreigners. Copy of the said
Operations Order is herein attached as Annex E.

10. Proceeding unto the validity of the Commitment


Order, Section 9 of OOSBM-2014-046 provides:
Section 9. Turn-over to the BI Wardens
Facility- After the conduct of the inquest
investigation and the Special Prosecutor deems
the necessity of filing a Charge Sheet or after
requesting for a regular preliminary investigation,
the CSU shall turn-over the foreigners custody to
the Warden, BI Wardens Facility (BIWF). The Chief,
LD shall issue the Commitment Order.
11. Thus, prior to the turn over of a foreigners
custody before the Bureau of Immigration
Wardens
Facility
(BIWF),
an
inquest
investigation or preliminary investigation
followed by the filing of a Charge Sheet should
have transpired before the issuance of the
Commitment Order.
12. It is also important to take note that before conducting
any inquest or preliminary investigation for the purpose
of implementing OOSBM-2014-046, a Mission Order
under Section 1 must be validly issued to acquire
jurisdiction over the persons of the accused. The
pertinent provision provides:
Section 1. Issuance of a Mission Order Upon
a
well-founded
and
reasonable
determination based on available and verifiable
civilian, immigration, law enforcement, or military
3

intelligence report that a foreigner has committed,


is actually committing or is about to commit a
violation of immigration laws, or any of the
Philippine laws, rules and regulations, which may
constitute
grounds
for
deportation,
the
Commissioner, or in his absence, the Acting
Commissioner, in the interest of national security,
public health, public safety and/or national
interests, may issue a Mission Order directing
appropriate officers of the Bureau of
Immigration (BI) to conduct verification and
investigation
operations
against
the
foreigner concerned, and if probable cause
exists, to effect a warrantless arrest of such
foreigner in accordance with Section 5, Rule 113 of
the Revised Rules of Criminal Procedure, if found
in flagrante violating Philippine Immigration laws.
(Emphasis supplied)
The Commissioner may issue a Mission Order
motu propio or upon written request of other law
enforcement agencies.
13. Surprisingly, no Mission Order was attached to the
Commitment Order or was served before this Honorable
Court whose jurisdiction over the custody of the accused
was vested by virtue of the pending criminal cases filed
neither was there any coordination before the Police
Officers during the arrest of the accused.
14. A scrutiny of OOSBM-2014-046 would show that several
procedures should be followed before the issuance of a
Commitment Order.
15. First, since both accused were not arrested or
intercepted in flagrante, a Mission Order should have
been issued directing appropriate officers of the Bureau
of Immigration (BI) to conduct verification and
investigation operations against the foreigner (accused)
concerned. In the present case no verification and
investigation was conducted since there was even
no prior coordination between the Police Officers
and BI as to the arrest of the accused. Section 2 of
OOSBM-2014-046 provides:
4

Section
2.
Submission
of
Written
Request from Other Law Enforcement
Agencies - Law enforcement agencies seeking
assistance for a joint-operation with the BI may
file a written request containing the following:
(i) purpose of the joint-operation; (ii) the place
and time of the joint- operation; (iii) other
relevant information about the operation.
Without prior coordination, the BI shall
not accept the turn-over of foreigners
from other law enforcement agencies
except when the foreigners (i) pose a
clear and present danger to public
safety; or (ii) are fugitives. (Emphasis
supplied)
16. Thus, without prior coordination as provided
under Section 2 of OOSBM-2014-046, the BI should
have refused to accept the turn-over of the
accused.
17. Second, under OOSBM-2014-046, prior to the issuance
of a Commitment Order, proper execution of the
Mission Order, submission of a Post Mission Report and
the endorsement to the Civil Service Unit should have
been followed. In the present case, the subject
Commitment Order was issued without any
Mission Order and without Officers from the BI
serving the same before this Honorable Court or at
the Police Station during the turn-over of the
custody of the accused.
18. Third, during the said turn over, the undersigned
personally accompanied the accused before the Bureau
of Immigration Detention Center at Camp Bagong Diwa,
Bicutan, Taguig City and served a copy of the Release
Order from the Honorable Court informing the Warden
that an Order of Release was already issued for the
temporary release of the accused but the latter
together with other personnel from the said
facility refused to receive a copy of the Order of
Release and insisted that it should have been
served before the BI Central Office.
5

19. Section 10 of OOSBM-2014-046 provides for the duties


of the Bureau of Immigration Wardens Facility, to wit:
Section 10. Duties of the BIWF- Prior to
receiving custody of the arrested foreigners, the
Warden, or his duly authorized agent, shall register
the following entries in its official logbook:
a.
Complete names of all the BI personnel who
turned-over the foreigners;
b.
Personal circumstances of the arrested
foreigners;
c.
Copy of the Mission Order and Affidavit of
arrest;
d.
Original copy of the Commitment Order;
e.
Complete inventory of the foreigners
properties things and papers that will be turned
over to the Warden.
20. That the BIWF accepted and took over the custody the
accused despite knowledge of the existence an Order of
Release issued by the Honorable Court and their refusal
to recognize and receive a copy of the same also
constitutes a violation and should constitute contempt of
Court. Furthermore, no proper accountability as to the
turn over of the accused was made since the
undersigned never received the entries as mandated
under Section 10. Mere copies, much less Xerox copies of
the faxed Commitment Order together with the Charge
Sheet was only furnished.
21. Thus, based on the following, the continued detention
of the accused despite the existence of an Order of
Release constitutes a patent violation of the accused
constitutional right to bail and to be temporarily released
pending the resolution of the case before the Honorable
Court.
22. More importantly, the Jurisdiction over the persons of
the accused are already vested with the Honorable Court
by virtue of the pendency of the criminal case, thus, the
Bureau of Immigration should have exercised caution in
issuing the said Commitment Order and refused to take
custody over the accused considering that an Order of
Release was already issued.

23. That for expedient resolution of the issues raised


herein, early resolution of the instant Motion has become
glaringly exigent.
24. That this Motion is intended for for the purposes alluded
thereto.
PRAYER
WHEREFORE, foregoing premises considered, it is most
respectfully prayed unto this Honorable Court that the
instant Motion be granted and an (1) Order of Release
addressed to the Bureau of Immigration be issued for the
release of the Accused and (2) Direct the Bureau of
Immigration to issue a Certificate of Detention showing that
both accused are under their custody.
Other just and equitable reliefs are likewise prayed under the
premises.
Quezon City, Philippines this 5th day of January 2016.
Respectfully submitted.
ATTY. JAIRUS B. RUBIO
Counsel for the Accused
Roll No. 64701 4/29/15
IBP No. 1006546
MCLE Exempt
Lot 4 Blk 4 Crestwood
Subdivision,
Brgy. San Luis, Antipolo, Rizal
NOTICE OF HEARING
The Honorable Branch Clerk of Court
Regional Trial Court Branch 98
ALESSANDRO D. JURADO
Assistant City Prosecutor
Department of Justice
Quezon City
PSUPT. PEDRO T. SANCHEZ
Station Commander
Quezon City Police District
7

Police Station 10
EDSA, Kamuning, Quezon City
ARVIN CESAR G. SANTOS
Chief, Legal Division
Bureau of Immigration
Magallanes Drive, Intramuros
1002 Manila
Greetings!
Please take notice that on January 15, 2015 at 8:30
oclock in the morning, undersigned counsel will submit the
foregoing Petition to the Honorable Court for its
consideration and approval. Accordingly, the Branch Clerk of
Court is respectfully requested to include said motion in the
calendar of the Court for that day. Thank you.
ATTY. JAIRUS B. RUBIO
Counsel for the Accused

Copy furnished
ALESSANDRO D. JURADO
Assistant City Prosecutor
Department of Justice
Quezon City
PSUPT. PEDRO T. SANCHEZ
Station Commander
Quezon City Police District
Police Station 10
EDSA, Kamuning, Quezon City
ARVIN CESAR G. SANTOS
Chief, Legal Division
Bureau of Immigration
Magallanes Drive, Intramuros
1002 Manila