THE ALLEGED leader of the Aegis Juris fraternity (AJF) has filed his counter-affidavit before the Department of Justice (DoJ) urging the dismissal of the charges against him, in connection with the death by hazing of AJF recruit Horacio T. Castillo III on Sept. 17.

Arvin R. Balag, who has declined to comment in a Senate inquiry on whether he is the fraternity president, filed his 12-page counter-affidavit on Monday, Oct. 30, accompanied by his lawyers Robespierre S. Cu and Stanley L. Gotohio. Currently detained at the Senate for contempt, Mr. Balag is a respondent in the charges of murder, obstruction of justice, perjury, and violation of the Anti-Hazing Law (Republic Act No. 8049), filed by the parents of the slain Mr. Castillo, Horacio M. Castillo, Jr. and Carmina T. Castillo.

Mr. Balag said in his counter-affidavit, referring to the complaints filed by the Castillo parents: “Complaint-Affidavit dated Sept. 25 and the subsequently filed Supplemental Complaint-Affidavit dated Oct. 9 would reveal that I cannot be held liable for the said crimes being imputed against me because my alleged active and direct participation in the supposed incident which led into the death of Horacio Tomas “Atio” T. Castillo III was never clearly alleged with particularity and established by the complainants.”

“Complainants likewise presented no witnesses stating my actual direct participation to the supposed illegal hazing done to Mr. Castillo as a neophyte of Aegis Juris Fraternity,” he added.

Thus, “the aforesaid charges against me have no basis in fact and in law and should be dismissed outright for utter lack of merit,” Mr. Balag said.

The Castillo parents’ Supplemental Complaint-Affidavit cited an online conversation thread from a Facebook chat group that police had presented before the Senate.

But Mr. Balag said of the conversation thread, now posted in various Web sites, “I hereby categorically and specifically deny that I have any knowledge or that I am a party in the conversation mentioned in the “screenshots of conversation” derived from Facebook.”

“The ‘screenshots of conversation’ which complainants allegedly saw posted on Facebook clearly are in the nature of electronic evidence,” he said.

Section 2, Rule 5 of the Rules on Electronic Evidence states that: “Before any private electronic document offered as authentic is received in evidence, its authenticity must be proved by any of the following means : (a) by evidence that it had been digitally signed by the person purported to have signed the same; (b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or (c) by other evidence showing its integrity and reliability to the satisfaction of the judge.”

On that basis, Mr. Balag said: “Since the aforesaid ‘screenshots of conversation’ which complainants saw posted on Facebook were not properly authenticated pursuant to the above-stated Rule 5 of the Rules on Electronic Evidence, the same are inadmissible as evidence against me for the instant complaint.”

“Likewise, the said ‘screenshots of conversation’ which complainants saw posted on Facebook are also not admissible as evidence in the case at bar because they violate the constitutionally guaranteed right to privacy of communication and correspondence,” the respondent added.

Regarding another piece of evidence, “(t)he unmarked compact disc (CD) attached with the Supplemental Complaint-Affidavit dated Oct. 9 containing Closed-Circuit Television (CCTV) video footages also cannot be considered as evidence against me because it does not in any way depict my participation in the crimes being imputed against me,” Mr. Balag said.

He noted further: “As a matter of fact, I never appeared in person in the said CCTV video footages. Likewise, the said CCTV video footages also were not authenticated based on the Rules of Electronic Evidence.”

“I could not in any way be held liable for violation of Republic Act No. 2049 (Anti-Hazing Law) since there is no evidence whatsoever that Atio was placed in some embarrassing or humiliating situation or subjected to physical or psychological suffering or injury as a prerequisite for admission or entry to an organization and that I have any direct participation therein,” Mr. Balag also pointed out.

Of the charge of murder, he said: “I cannot be held liable for murder as charged therein for the death of Atio for the simple reason that neither my presence nor my participation was proven by the complainants.”

“The principal and essential element of attempted or frustrated murder is the intent on the part of the assailant to take the life of the person attacked. Such intent must be proved in a clear and evident manner to exclude every possible doubt as to the homicidal intent of the aggressor. In the present case, intent to kill the victim could not be inferred from the surrounding circumstances,” Mr. Balag also said in his counter-affidavit.

The respondent also questioned the medico-legal report on Mr. Castillo, saying: “Atio’s Medico Legal Report did not make any finding that Atio died of Cardiac Arrest due to hazing. There is absolutely no finding in the said Medico Legal Report regarding the cause of death of Atio.”

“Without any finding on the cause of death of Atio, it shall not and will not be legally tenable to hold me criminally liable for violation of Section 4 or R.A. 8049 and/or for the felony of Murder, much less to hold that there exists probable cause to hold me for trial for the offenses charged against me.”

Mr. Balag further pointed out: “If indeed it is true that Atio is a victim of hazing where he suffered from severe physical trauma, Atio’s kidneys should have acquired some degree of kidney injury due to accumulation of myoglobin and the same could be a cause of acute kidney injury/ failure resulting to multiple organ failure.”

“Simply put, there is no finding in any manner whatsoever that Atio suffered multiple organ failure which is the reported common cause of death from hazing.”

“Thus, the most likely proximate cause of the death of Atio is Cardiac Arrest because of Hypertrophic Cardiomyopathy (HCM), and not due to hazing,” Mr. Balag said.

The said report had also been questioned earlier in the counter-affidavit filed last Oct. 24 by suspect John Paul Solano, who transported Mr. Castillo’s body from the Aegis Juris Fraternity Library to the Chinese General Hospital where the fraternity recruit was declared dead on arrival.

In a brief statement on Tuesday, Senator Juan Miguel F. Zubiri said, “I have only one word to describe Arvin Balag and his counter-affidavit . . . . Pathetic.”

Also on Monday, a heated exchange took place between lawyers of two alleged fraternity members during a preliminary hearing at the DoJ on the Castillo case.

The dispute arose as Marc Ventura, who was admitted into the Justice department’s witness protection program (WPP), testified against his fraternity brothers. He had admitted being part of Mr. Castillo’s Sept. 16 initiation.

Respondent Alex Bose, through lawyer Paris Real, contested Mr. Ventura’s enrolment in the WPP, saying he was disqualified and was not the least guilty, having admitted taking part firsthand in the hazing.

Mr. Real pointed out that Mr. Ventura had admitted having actively dealt Mr. Castillo some blows.

But according to assistant state prosecutor Susan Villanueva, Mr. Ventura remains until now a respondent. The DoJ panel also has not gotten a copy of Mr. Ventura’s affidavit. — Andrea Louise E. San Juan with a report by