Ombudsman: Ex-Czech envoy should testify vs Vitangcol

MANILA, Philippines — The Office of the Ombudsman is urging the Sandiganbayan to reconsider its rejection of the proposed video testimony of former Czech ambassador Josef Rychtar on the graft cases against former Metro Rail Transit Line 3 general manager Al Vitangcol III and five incorporators of maintenance provider PH Trams.

In a motion for reconsideration submitted to the anti-graft court’s Third Division, the ombudsman’s prosecution team argued that electronic evidence, like one obtained through video conferencing, is already allowed in criminal cases as stated by the Supreme Court in its Administrative Memorandum No. 01-7-01 dated Sept. 24, 2002.

“Allowing Ambassador Rychtar to testify via video conferencing will not in any way prejudice the accused and the jurisdiction of this Honorable Court, considering that the video conferencing will be done at the Philippine embassy in Chile and he will be duly sworn to by the consul and/or duly authorized representative of the Philippines,” the prosecution’s motion read.

The Third Division had earlier allowed Rychtar and Inekon Group board chairman and CEO Josef Husek to testify before the court.

The prosecution, however, failed to present them in person on the agreed dates last April and instead moved that they be presented through video-conferencing.

Vitangcol and five incorporators of joint venture PH Trams and CB&T – Wilson de Vera, Marlo dela Cruz, Manolo Maralit, Federico Remo and Arturo Soriano – are facing two cases of graft and another case of violation of the Government Procurement Reform Act.

Based on the cases filed by the ombudsman in 2015, Vitangcol “unlawfully” used his position to recommend the awarding of the maintenance contract to PH Trams in 2012 “despite having a direct or indirect financial or pecuniary interest” in the company.

Soriano, then one of the incorporators of Trams, is an uncle of Vitangcol’s wife.

Under the contract, the MRT was supposed to pay PH Trams $1.15 million monthly for Line 3’s maintenance.

The prosecution maintained that Rychtar’s testimony would be vital to the cases as he had personal knowledge of the supposed anomalies in the awarding of the contract to PH Trams.

Respondents Vitangcol and Rivera had allegedly attempted to extort some $30 million from Czech company Inekon Group in exchange for securing contracts to supply train coaches and maintain the system.

It was Rychtar who exposed the alleged extortion attempt, claiming that the incident took place in his house in Forbes Park, Makati City on July 9-10, 2012.

After Inekon’s refusal to pay the amount, the supply contract for the train coaches was awarded to CNR Dalian Locomotive and Rolling Stock Co. of China while the maintenance contract went to PH Trams.

In its motion for reconsideration, the prosecution said it had already “exhausted all reasonable efforts” to compel Rychtar’s attendance in court, but the latter is now serving as ambassador to Chile.

The prosecution said despite Rychtar’s willingness to testify, the Czech Republic cannot readily accommodate the Philippine government’s request for his travel in the absence of any mutual legal assistance treaty or reciprocity agreement on criminal matters between the two governments.

The prosecution said allowing Rychtar to testify through video conferencing would not violate the respondents’ right to confront the witness because their lawyers can still subject him to cross-examination, as the conference “will be conducted in real time using the latest available technology.”

In his opposition paper, however, Vitangcol argued that under the Article III Section 14 of the Constitution, the accused has the right to confront the witness face-to-face.

Vitangcol said a testimony through video-conferencing would also deprive the magistrates the vital opportunity to personally and closely observe the demeanor of the witness while he is testifying.

Furthermore, Vitangcol said the prosecution had not been truthful to the court in claiming that Rychtar was willing to testify in the cases.

Vitangcol cited a letter sent via e-mail to the Office of the Ombudsman by a certain Jakub Pastuszek, a director for Czech Republic’s Department on Criminal Matters. Vitangcol said in his letter, Pastuszek supposedly told the ombudsman that Rychtar “refused to receive (its) subpoena” as the procedure was not in compliance with Czech Republic’s law on international judicial cooperation.

Vitangcol is facing another set of graft cases before the Sandiganbayan Sixth Division in connection with the alleged extortion attempt on Inekon.

The Sixth Division had earlier junked the prosecution’s motion to present Rychtar and Husek through video conferencing.