THE SUPREME Court (SC) upheld the decision of the Ombudsman to drop the graft charges against a retired security guard of the Bureau of Customs (BOC) for alleged falsification of his Statement of Assets, Liabilities, and Net Worth (SALN).
In its decision recently made available online, the High Court dismissed the petition filed by the Department of Finance-Revenue Integrity Protection Service (DOF-RIPS) and affirmed the order of the Ombudsman clearing Clemente Germar “for lack of probable cause as well as the charges for perjury on the ground of prescription”.
The SC said the “the element of taking advantage of one’s position is patently lacking” and failure to disclose in his SALN several other real properties is not tantamount to taking advantage of his position as BOC security guard.
“A public officer is said to have taken advantage of his or her position if he or she has the duty to make or prepare or otherwise to intervene in the preparation of a document or if he or she has the official custody of the document which he or she falsifies,” the SC added.
Germar assumed his post on April 1,1979 and retired on October 2015.
Sometime in 2015, the DOF-RIPS conducted a lifestyle check on his assets, business interests, and financial connections and compared his SALN from 2002 to 2014 with documents obtained from the Bureau of Internal Revenue, Land Registration Authority, Land Transportation Office, Securities and Exchange Commission, and Department of Trade and Industry.
The lifestyle check revealed that he failed to declare his properties in Santa Maria, Bulacan -- under his name and one property he donated in 2015 to his daughter, Michelle.
The DOF-RIPS also said Germar made an untruthful statement when he did not declare that he has been charged with robbery, although it was provisionally dismissed by the Malolos, Bulacan Regional Trial Court.
He was then charged with violation of Republic Act (RA) 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees) and RA 3019 (Anti-Graft and Corrupt Practices Act) as well as falsification by a public officer and false testimony and perjury before the Ombudsman.
In 2017, the Ombudsman found probable cause to charge Germar for failing to disclose all his properties in his SALNs but said he had no obligation in one property covered by a tax declaration since it is not a proof of ownership.
The Ombudsman also said he may be prosecuted for failure to disclose the properties in his SALN only for the years 2008 to 2014 since a violation of RA 6713 prescribes eight years from the time of its commission.
The SC ruled that perjury charges can no longer be pursued “since more than 10 years have lapsed and prosecution for perjury for SALNS for the year 2002 to 2005 is now barred by prescription.”
The lifestyle check began in 2015 and the joint complaint-affidavit was filed in 2016. (Benjamin Pulta)
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