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[G.R. No. 145937. September 25, 2006]

PEOPLE OF THE PHILIPPINES v. ANDREAS ERAST FRIEDRICK LEWICKI

Sirs/Mesdames:

Quoted hereunder, for your information, is a resolution of this Court dated SEPT. 25, 2006 .

G.R. No. 145937 (People of the Philippines v. Andreas Erast Friedrick Lewicki )

This is an appeal from the Decision of the Regional Trial Court, Pasay City, Branch 113, dated October 18, 1999, convicting herein appellant, Andreas Erast Friedrick Lewicki, a German national, for violation of Section 5(b), Article III, Republic Act No. 7640, otherwise known as the "Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act." In the said decision, appellant was meted the penalty of reclusion perpetua and ordered to indemnify the victim, Ma. Camila Santos, the sum of P200,000.00. The Notice of Appeal was filed by Atty. Evangeline C. Malabanan, counsel for the appellant. ^[1] cralaw

In the Resolution ^[2] cralaw dated June 25, 2001, the Court accepted the appeal, directed the parties to file their Briefs, and required the Director of the New Bilibid Prison (NBP) to confirm the appellant's confinement. In compliance therewith, the NBP Director reported that the appellants has no record of confinement. ^[3] cralaw Inquiries on the appellant's whereabouts were subsequently conducted. ^[4] cralaw

On June 16, 2003 , the Court issued the following resolution:

The records show that appellant Andreas Erast Lewicki was able to leave the Philippines not through regular or exit points and is now detained in the Czech Republic, beyond the territorial jurisdiction of Philippine courts. The appellant has likewise failed to file his brief despite notice. Accordingly, Atty. Evangeline Malabanan, counsel for appellant, is directed to explain and show cause why the appeal should not be dismissed based on the aforementioned grounds. ^[5] cralaw

In the meantime, the German Embassy had been inquiring about the status of the criminal case of its national, to which our Division Clerk of Court responded that said appellant is still at large. ^[6] cralaw

As the records show, Atty. Evangeline Malabanan repeatedly failed to comply with our Show Cause Resolution dated June 16, 2003. On July 6, 2005, the Court declared her guilty of contempt of court and ordered her detention until she complies with the Court's directive, submits the required explanation, and pays the fine of P4,000.00. ^[7] cralaw

On July 22, 2005, a Motion for Reconsideration with Urgent Prayer to Lift the Order of Arrest dated July 6, 2005 was filed by Atty. Vener C. Malabanan III, son of Atty. Evangeline Malabanan. Atty. Vener stated therein that his mother is no longer capable of preparing or submitting to the Court the required Explanation since she is suffering from aneurism and is having "visual difficulties." To substantiate this claim, a medical certificate was submitted to the Court. ^[8] cralaw Atty. Vener explained that her mother's legal services and assistance was secured by the appellant through a common friend for the appeal of his case to this Court, thus, replacing his trial court counsels, Atty. Felix F. Reyes and Atty. Romulo Untalan. ^[9] cralaw They actually did not meet personally and their professional relationship was anchored solely on trust and confidence. The last communication with the appellant was the registered letter dated June 25, 2000 sent from Litomerice, Czech Republic, inquiring about his appeal. ^[10] cralaw Atty. Malabanan had tried to get in touch with the appellant but obtained no positive response.

Atty. Vener clarified that it was not the deliberate intention of Atty. Malabanan to defy the orders of the Court, and submits that since (despite diligent efforts) no other communication with the appellant was forthcoming, the failure to file the appellant's brief was tantamount to a waiver of the appeal. Furthermore, they have no personal knowledge on how the appellant was able to leave the Philippines. The records bear out that the former counsel, Atty. Felix Reyes, filed an Urgent Motion to Post Bail dated December 1, 1995 ^[11] cralaw which was apparently granted due to the recantation of the victim. But before the appellant could post his cash bail, the trial court issued the hold departure order on December 22, 1995. ^[12] cralaw

Atty. Vener prays that the Order of Arrest issued against his mother be lifted and the payment of fine be reduced in the interest of compassionate justice.

The Court finds the Explanation and Compliance of Counsel, Atty. Vener Malabanan, in behalf of his mother Atty. Evangeline C. Malabanan, satisfactory. The Order of Arrest dated July 6, 2005 is LIFTED. Atty. Evangeline C. Malabanan is DIRECTED to PAY the reduced fine of P2,000.00.

Considering that the appellant has left the Philippines without prior permission from the Court, and is now beyond the territorial jurisdiction of Philippine courts, the appeal of herein appellant Andreas Erast Friedrick Lewicki is hereby DISMISSED.

Very truly y

(Sgd.) ENRIQUETA ESGUERRA-VIDAL
Clerk of Court

First Division

Endnotes:

^[1] cralaw Rollo , pp. 36-45.

^[2] cralaw Id. at 46.

^[3] cralaw Id. at 50.

^[4] cralaw Letter dated October 26, 2001 from the RTC Branch Clerk of Court Atty. John Giselher F. Imperial, rollo , p. 56; Compliance of Commissioner Andrea D. Domingo, Bureau of Immigration, dated January 31, 2003: rollo , pp. 67-76.

^[5] cralaw Resolution dated June 16, 2003; rollo , p. 80

^[6] cralaw Letters dated August 13, 2002, rollo , p. 58; November 22, 2002, id. at 64; February 28, 2003, id. at 76; May 27, 2003, id. at 78.

^[7] cralaw Rollo , p. 111.

^[8] cralaw Id. at 167.

^[9] cralaw Manifestation of Formal Entry of Appearance dated February 5, 1996 submitted to the RTC; rollo , pp.135-137.

^[10] cralaw Rollo , pp. 140-141.

^[11] cralaw Id. at 138-139.

^[12] cralaw Decision of the RTC; rollo , p. 36.

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