The DOJ reversed the decision of Manila Prosecutor Office's dismissal of the complaint filed by Senator Ferdinand Marcos Jr. for lacking merit and evidence.
The Department of Justice stated on their 41-page resolution that they found probable cause to file charges against the Commission on Election and the Smartmatic for their violation of Section 4, Republic Act 10175 or the Cybercrime Prevention Act. Specifically recommended for charges are Smartmatic technical support team head Marlon Garcia and his officers Neil Baniqued and Mauricio Herrera, as well as Comelec IT specialists Rouie Peñalba, Nelson Herrera, and Frances Mae Gonzales.
Section 4 penalizes penalizes the act of hindering or interfering with the functions of a computer and computer network by inputting, deleting and altering computer data and programs, without any right or authority.
Sen. Bongbong Marcos' campaign adviser and also the Abakada Representative Jonathan dela Cruz along with Atty. Jose Amorado and brought up the case to the DOJ in November.
In the resolution, DOJ stated,"Wherefore, premises considered, the Petition for Review is hereby partially granted and the Resolution dated September 28, 2016 of the City Prosecutor of Manila is Modified. The Office of the City Prosecutor of Manila is directed to file the necessary Information for violations of Sec. 4(a)(1), (3) and (4) of the Cyber crime Prevention Act against respondents before the appropriate court/s and to report the action taken within ten (10) days from receipt, hereof…"
Also, the DOJ said that Republic Act 10175 does not require criminal content.
"Criminal intent is not necessary where the acts are prohibited by reason of public policy. The mere perpetration thereof constitute an offense against the confidentiality, integrity, and availability of computer data and systems. When the doing of the act is prohibited by law, it is considered injurious to public welfare, and the doing of the prohibited act is the crime itself," the ruling stated.
DOJ dismissed Smartmatic's argument that the Protocol of Escalation had given them authority to execute necessary changes without clearance from the Comelec since they only needed to fix a glitch in the system.
Department of Justice also requires Smartmatic reps to report any issue to a designated Comelec personnel.
"It was established that respondents [were] able to access the transparency server to change the same without notifying the Comelec en banc. It must be noted that the Comelec IT personnel assigned at the PPCRV center had no authority to allow any Smartmatic personnel to tweak the script of the transparency server," said the ruling.
Marlon Garcia's admitting to altering the script in the transparency server is already enough to indict him for unauthorized change.