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Office for Police Matters to unfreeze

Officecos assets. The PCGG required


Officeco to present countervailing
Facts:
On 7 April 1986, in connectionevidence to support its request.
with criminal proceedings initiated in
the Philippines to locate, sequesterInstead of complying with the PCGG
for
it
to
submit
and seek restitution of alleged ill-requirement
countervailing
evidence,
on
12
gotten wealth amassed by the
Marcoses and other accused from theSeptember 1994, Officeco filed the
Philippine Government, the Office ofcomplaint, which was docketed as Civil
the Solicitor General (OSG) wrote the Case No. 0164 of the Sandiganbayan.
Federal Office for Police Matters inThe complaint prayed for the PCGG
Berne,
Switzerland,
requestingand the OSG to officially advise the
assistance for the latter office to: (a) Swiss government to exclude from the
ascertain and provide the OSG withfreeze or sequestration order the
information as to where and in whichaccount of Officeco with BTAG and to
release
the
said
cantons the ill-gotten fortune of the unconditionally
account
to
Officeco.
SB
accordingly
Marcoses and other accused are
located, the names of the depositors moved to dismiss the case but was
and the banks and the amountsdenied
Thus this case where PCGG
involved; and (b) take necessary
alleges
the that the case shoukd be
precautionary measures, such as
dismissed
on the following grounds:
sequestration, to freeze the assets in
order to preserve their existing value (1) res judicata; (2) lack of jurisdiction
and prevent any further transfer on account of the act of state
thereof (herein referred to as the IMAC doctrine; (3) lack of cause of action
for being premature for failure to
request.
On 29 May 1986, the Office ofexhaust administrative remedies; and
the District Attorney in Zurich,(4) lack of cause of action for the
pursuant to the OSGs request, issuedreason that mandamus does not lie to
an Order directing the Swiss Banks incompel performance of a discretionary
Zurich to freeze the accounts of theact, there being no showing of grave
accused in PCGG I.S. No. 1 and in theabuse of discretion on the part of
List of Companies and Foundations.petitioners.
In compliance with said Order, Bankers
Trust A.G. (BTAG) of Zurich froze theIssue:
Whether or not there is a lack of
accounts of Officeco Holdings, N.V.
jurisdiction
in the account of the
(Officeco).
Officeco appealed the Order ofdoctrine of the "act of state."
the District Attorney to the Attorney
General of the Canton of Zurich. TheRuling:
Every sovereign state is bound
Attorney General affirmed the Order of
to
respect
the independence of every
the District Attorney. Officeco further
appealed to the Swiss Federal Court, other state, and the courts of one
which likewise dismissed the appeal country will not sit in judgment on the
acts of the government of another,
on 31 May 1989.
Thereafter,
in
late
1992,done within its territory. Redress of
Officeco made representations withgrievances by reason of such acts
the OSG and the PCGG for them tomust be obtained through the means
officially advise the Swiss Federalopen to be availed of by sovereign

Gunigundo vs. SB

powers as between themselves.


considered, the act of state doctrine
It is petitioners contention thatfinds no application in this case and
the Sandiganbayan could not grant orpetitioners resort to it is utterly
deny the prayers in [Officecos]mislaid.
complaint without first examining and
scrutinizing the freeze order of theWHEREFORE, premises considered,
Swiss officials in the light of the the instant petition is DISMISSED.
evidence, which however is in the
possession of said officials and that it
would therefore sit in judgment on
the acts of the government of another
country. We disagree.
The parameters of the use of
the act of state doctrine were clarified
Municher vs. CA
in Banco Nacional de Cuba v.
Sabbatino. There, the U.S. SupremeFacts:
Court held that international law does
Khosrow Minucher is the Labor
not require the application of this Attach of the Embassy of Iran in the
doctrine nor does it forbid thePhil. Arthur Scalzo, then connected
application of the rule even if it is with the American Embassy in Manila,
claimed that the act of state inwas introduced to him by Jose Inigo
question violated international law.(an informer belonging to the military
Moreover, due to the doctrinesintelligence community).
peculiar nation-to-nation character, in
Accdg. to Inigo, Scalzo was
practice the usual method for an interested in buying Iranian products
individual to seek relief is to exhaustlike caviar and carpets. Minucher
local remedies and then repair to thecomplained to Scalzo about his
executive authorities of his own state problems with the American Embassy
to persuade them to champion hisregarding the expired visas of his wife,
claim in diplomacy or before an Abbas Torabian. Offering help, Scalzo
international tribunal.
gave Minucher a calling card showing
Even
assuming
thatthat the former is an agent of the Drug
international
law
requires
theEnforcement
Administration
(DEA)
application of the act of state doctrine,assigned to the American Embassy in
it
bears
stressing
that
theManila. As a result, Scalzo expressed
Sandiganbayan will not examine andhis intent to buy caviar and further
review the freeze orders of the promised to arrange the renewal of
concerned Swiss officials in Civil Casethe visas.
No. 0164. The Sandiganbayan will not
Scalzo went to Minucher's
require the Swiss officials to submit toresidence and asked to be entrusted
its adjudication nor will it settle awith Persian silk carpets, for which he
dispute involving said officials. In fact, had a buyer. The next day, Scalzo
as prayed for in the complaint, thereturned and claimed that he had
Sandiganbayan will only review andalready made arrangements with his
examine the propriety of maintainingcontacts concerning the visas and
PCGGs position with respect toasked for $2,000.
Officecos accounts with BTAG for the
It turned out that Scalzo
purpose of further determining theprepared a plan to frame-up a
propriety of issuing a writ against the Minucher and wife for alleged heroin
PCGG and the OSG. Everythingtrafficking. Both were falsely arrested

and charged with violations of theRuling:


Dangerous Drugs Act.
No. Jurisdiction over the person
Minucher prays for actual andof the defendant is acquired by either
compensatory damages. However,voluntary appearance or by the
counsel for Scalzo filed a motion toservice of summons. In the case,
quash summons alleging that theScalzo's counsel filed a motion to
defendant is beyond the processes of quash, which, in effect already waived
the Philippine court for the action forany defect in the service of summons
damages is a personal action and that by earlier asking an extension to file
Scalzo is outside the Philippines.
time to file an Answer and filing an
TC denied the motion. CAAnswer with Counterclaim.
dismissed the motion for lack of merit
The complaint for damages
on the basis of the erroneouscannot be dismissed. Said complaint
assumption that because of thecontains sufficient allegations which
Diplomatic Note (advising the DFA thatindicate
that
Scalzo
committed
Scalzo is a member of the USimputed acts in his personal capacity
diplomatic
mission
investigatingand outside the scope of his official
Minucher for drug trafficking), Scalzoduties and functions. The TC gave
is clothed with diplomatic immunity.
credit to Minucher's theory that he
was a victim of frame-up hence, there
Issue:
is a prima facie showing that Scalzo
Whether or not a complaint forcould be held personally liable for his
damages be dismissed in the soleacts. Further, Scalzo did not come
basis of a statement complained in a forward with evidence to, prove that
Diplomatic Note.
he acted in his official capacity.