position paper trafficking

7/31/2019 Position Paper Trafficking

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Republic of the Philippines

National Capital Region

Makati City

PEOPLE OF THE PHILIPPINES,

Plaintiff

-versus- Criminal Case No. 21809Honorable Judge ________________

BERNADETTE SANTOS,

Accused

POSITION PAPER(For the Plaintiff)

PLAINTIFF, represented by the Public Prosecutor and unto this Honorable Office, most

respectfully submits this Position Paper and in support thereof states the following:

THE PARTIES

1. PLAINTIFF, represented by the Public Prosecutor2. Private Complainant, MARIFE DOLINDO, is a Filipino, of legal age, and presently

residing at 234 Poblacion Street, Makati City, Philippines

3. ACCUSED, BERNADETTE SANTOS, is a Filipino, of legal age, married, resident at235 Poblacion Street, Makati City.

STATEMENT OF THE FACTS AND THE CASE

4. Private Complainant and Accused have been neighbors at Poblacion Street in MakatiCity. Sometime in August 2, 2009, Private Complainant was recruited by the Accused

and her husband to work abroad for overseas employment as a waitress in Germany for

the Accuseds partner company ABC Restaurant & Bar.


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5. The Private Complainant and the Accused agreed that they would fix their employmentand travel papers together since the Accused also wanted to work abroad as a waitress.

6. The Private Complainant borrowed Php10,000 from the Accused in order for her toprocess her papers. The Accused lent her the money.

7. On the date of their departure sometime in late 2009, the Private Complainant discoveredthat they were not headed to Germany but to Nigeria.

8. Accused desisted from boarding the aircraft and left the Private Complainant to sojournon her own.

9. Upon reaching Nigeria, the Private Complainant was informed she was going to beprostituted instead.

10.Her employer confiscated her passport and threatened her family at home if she does notabide by their orders.

11.During her stay at ABC Restaurant & Bar, she was exploited sexually and forced toprovide sexual favors for the customers. She was forced to be a prostitute so that the

money she would receive would be used to pay off her living expenses and debts.

12.She was held against her will and was punished by physical beating if she refused tocomply with their orders.

13.She was able to escape 2 years later with the help of a former customer who paid out hercontract with her employers.

14.Upon arrival in the Philippines, the Private Complainant executed an affidavit in order tofile criminal charges against the Accused for violation of Section 4(a) of R.A. 9208

ISSUES

1. WHETHER OR NOT THE ACCUSED IS CRIMINALLY LIABLE FOR VIOLATINGSECTION 4(a) OF THE ANTI- TRAFFICKING IN PERSONS ACT OF 2003 (R.A.

9208);

2. WHETHER OR NOT THE ALLEGATION OF THE ACCUSED THAT PRIVATECOMPLAINANT WAS KNOWN TO MOONLIGHT AS A GUEST RELATIONS

OFFICER AND SPECIAL SERVICES MASSEUSE ENTITLES THE ACCUSED TO

EXEMPTION OR MITIGATION OF HIS CRIMINAL LIABILITY;


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3. WHETHER OR NOT THE ALLEGATION OF THE ACCUSED THAT PRIVATECOMPLAINANT FREQUENTLY TRAVELLED TO SEEK EMPLOYMENT

OPPORTUNITIES ABROAD SHALL BAR THE PROSECUTION OF THE ACCUSED

UNDER R.A. 9208;

ARGUMENTS/DISCUSSIONS

FIRST ISSUE: VIOLATION OF SECTION 4(a) OF THE ANTI- TRAFFICKING IN

PERSONS ACT OF 2003 (R.A. 9208)

1. It is undeniable that the Accused is guilty of violating Section 4(a) of the Anti-Trafficking in Persons Act of 2003 (R.A. 9208).

2. According to Section 3(a) of the same act, Trafficking in Persons refers to: therecruitment, transportation, transfer or harboring, or receipt of persons with or without

the victim's consent or knowledge, within or across national borders by means of threat

or use of force, or other forms of coercion, abduction, fraud, deception, abuse of power or

of position, taking advantage of the vulnerability of the person, or, the giving or receiving

of payments or benefits to achieve the consent of a person having control over another

person for the purpose of exploitation which includes at a minimum, the exploitation or

the prostitution of others or other forms of sexual exploitation, forced labor or services,

slavery, servitude or the removal or sale of organs.

3. Recruitment, according Article 13(b) of The Labor Code, refers to any act ofcanvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers,

and includes referrals, contract services, promising advertising for employment, locally

or abroad, whether for profit or not: x x x

4. The fact that the Accused denies having a partnership with ABC Restaurant & Bar is ofno moment since the act of referring already places it under the definition of Recruitment.

5. Pivotal also in this argument is the fact that Trafficking in Persons is punishable underlaw with or without the victims consent. Thus, even if the Accused in her counter-

affidavit repeatedly stated that it was the Private Complainant who brought up the idea of

working overseas she is still guilty of recruiting the Private Complainant. It is of no


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moment that the Private Complainant willingly agreed to be referred to ABC Restaurant

& Bar.

SECOND ISSUE: ENTITLEMENT OF ACCUSED TO EXEMPTION OR MITIGATION

OF CRIMINAL LIABILITY

6. The Accused claims in her counter-affidavit that the Private Complainant was known tomoonlight as a Guest Relations Officer and Special Services Masseuse even before

they met and talked about going abroad for employment.

7. Whether or not this allegation is proven to be true does not entitle the accused toexemption or mitigation of his criminal liability for violation of Section 4(a) of R.A.

9208.

8. The Supreme Court in its decision in the case of People v. Lalli1, affirmed the findings ofthe trial court that the allegations of the accused that complainant was a Guest Relations

Officer and had 4 children fathered by four different men were x x x ,irrelevant and

immaterial to the criminal prosecution. These circumstances, even if true, would not

exempt or mitigate the criminal liability of the accused.

THIRD ISSUE: FREQUENT TRAVELS ABROAD FOR EMPLOYMENT

OPPORTUNITES A BAR AGAINST PROSECUTION UNDER R.A. 9208

1. This allegation of the Accused, even if proven to be true does not erase the undisputedfact that she has committed an act of recruitment by referring the Private Complainant to

ABC Restaurant and Bar.

2. Such previous trips or transactions cannot be placed within the ambit of the transactioncentral to this case. This case involves the Accused and the Private Complainant wherein

the Accused was instrumental in bringing together the Private Complainant and her

employers over at ABC Restaurant & Bar.

1 People v. Lalli, G.R. No. 195419, October 12, 2011.


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PRAYER/ RELIEF

WHEREFORE premises considered, it is respectfully prayed that:

The Accused be prosecuted for violation of Section 4(a) of the Anti-Human Trafficking

Act of 2003 (R.A. 9208);

The Private Complainant be entitled to such other reliefs as may be deemed just and

equitable under the circumstances.

Respectfully submitted.

City of Makati, Septermber 19, 2012.

CLINICAL LEGAL EDUCATION PROGRAM (LEGAL AID)

ATENEO LAW SCHOOL LEGAL SERVICES CENTER

Counsel for Private Complainant


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20 Rockwell Drive, Rockwell Center, Makati City 1200.

By:

Gilbert V. Sembrano

IBP Lifetime No. 03400 RizalPTR No. 3191587; 1/12/2012; Makati

Roll Of Attorney No. 410030

MCLE Exemption No. III-001557

VERIFICAITON/CERTIFICATION

I, MARIFE DOLINDO, of legal age, Filipino, and presently residing at 234 Poblacion Street,

Makati City, Philippines, after having been duly sworn in accordance with law, hereby depose

and state, that:

1. I am the private complainant in the above- entitled case;2. I have contributed to the preparation of this Position Paper, read and understood the

contents thereof, which is true and correct of my own knowledge, belief and authenticity

of the documents;

3. I have not commenced any action or filed any claim involving the same issues in anycourt, tribunal, or quasi-judicial agency and to the best of my knowledge, no such action

or claim is pending therein; and

4. Should I thereafter learn that the same or similar action or claim has been filed or ispending, I would report such fact within (5) days there from.

IN WITNESS WHEREOF, I have hereunto affixed my signature this 19th

of September

2012 at Makati City.


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MARIFE DOLINDO

Affiant

SUBSCRIBED AND SWORN TO before me the _______________________ at

____________________, affiant exhibited to me her Identification Card No:

________________.

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