Bollozos, Kyle Genesis G.2D – PIL – Atty. Victoria Loanzon

General Principles, Doctrines and Procedures Governing Extradition

As defined under P.D. 10691, extradition is the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government. Under international laws, it is commonly understood as the surrender of an individual by the state within whose territory he is found to the state under whose laws he is alleged to have committed a crime or to have been convicted of a crime. 2 Extradition may be illustrated in a simple manner as follows: X, a citizen of Country A, committed a crime in Country B. To evade prosecution, X returned to Country A and went into hiding. Country B, by virtue of an extradition treaty it entered into with Country A, may validly request for the surrender of X through its diplomatic arms and thereafter prosecute X within its jurisdiction for the crime he committed. Observing the principle of pacta sunt servanda, the extradition treaty would give rise to the obligation on the part of Country A to surrender X to Country B.

The Need for a Treaty

Since extradition is a process that is governed by treaty, the legal right to demand extradition and the correlative duty to surrender a fugitive exist only when created by treaty. Such treaty may cover specific crimes only or all offenses considered criminal by both states.3 Under a report attached to the extradition treaty between the U.S.A. and the Philippines4, Treaty Doc. 104-16, an extradition treaty is an international agreement in which the Requested State agrees, at the request of the Requesting State and under specified conditions, to turn over persons who are within its jurisdiction and who are charged with crimes against, or are fugitives from, the Requesting State. Extradition treaties can either be bilateral or multilateral, depending on the agreement of the contracting States. Thus, without a treaty governing the relationship between two or more State, a requesting State cannot reasonably expect another State to accede to its request for extradition, in as much the same way as a requested State has no legal obligation to surrender a fugitive within its jurisdiction to the jurisdiction of the requesting State.

Extraditable Offenses and the Dual Criminality Clause

Under the earlier mentioned report, an offense is extraditable if it is punishable under the laws of both parties by a prison term of at least one year. Attempts and conspiracies to commit such offenses, and participation in the commission of such offenses, are also extraditable. If the extradition request involves a fugitive, it shall be granted only if the remaining sentence to be served is more than six months. Hence, crimes punishable under the RPC and the Special laws of the Philippines, as well as attempts or conspiracies to commit the same, if also punishable under the laws of the U.S., are

1 Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes in a Foreign Country, Presidential Decree No. 1069, sec. 2 (1977).2 JOAQUIN G. BERNAS, S J., An Introduction to Public International Law 174 (2009).3 Id. at 174.4 Extradition Treaty with the Philippines, U.S. A.– Philippines, November 13, 1994, U.S.T. Lexis 185.

Bollozos, Kyle Genesis G.2D – PIL – Atty. Victoria Loanzon

extraditable under the current US-Philippine extradition treaty. Meanwhile, the Dual Criminality Clause may be illustrated in the following manner, an offense is not extraditable if in the U.S. it constitutes a crime punishable by imprisonment of more than one year, but is not a crime in the Philippines or is a crime punishable by a prison term of less than one year. In earlier extradition treaties the definition of extraditable offenses consisted of a list of specific categories of crimes. This categorizing of crimes has resulted in problems when a specific crime, for example drug dealing, is not on the list, and is therefore not extraditable. The result has been that as additional offenses become punishable under the laws of both treaty partners the extradition treaties between them need to be renegotiated or supplemented. A dual criminality clause removes the need to renegotiate or supplement a treaty when it becomes necessary to broaden the definition of extraditable offenses.5

The Political Offense Exception

Although a political offense has never been precisely defined, it can be classified into two categories, the pure political offense and the relative political offense. The former is an act exclusively against the political order of the state, including its independence, the integrity of its territory, its relation with other states, the form of its government, the organization of public powers, their mutual relations, in short, the political rights of citizens.6 While the latter is an act in which a common crime is either implicit in or connected with the political act.7 Under the Political Offense Doctrine, political offenders are exempted from extradition for the following reasons: first, the political offender deserves humanitarian treatment; second, the political offender possesses the right to revolt against tyranny, and if this right is to be meaningful, then in case of failure he should be entitled to political asylum; and third, the principle of neutrality and non-interference in the internal affairs of another state dictates that where there is a “contest” between the government and a segment of the population, the political offender should not be extradited.

The case of In Re: Castioni8 is illustrative of the application of the political offense doctrine. In said case, Castioni was arrested in England for shooting a member of the State Council of Switzerland, which latter country, subsequently requested for Castioni’s extradition. However, the extradition was disallowed by England, the same being bolstered by the decision of three judges in said case invoking the application of the political offense doctrine. The court found that concurrence of the certain factors – that there was a political uprising in Switzerland; that shooting happened at the height of the uprising; and that Castioni was an active participant in the said uprising – conclusively established that the crime committed by Castioni was in fact political in nature, and hence, not extraditable.

Extradition Procedure

5 Id.6 RENÉ GARRAUD, PRECIS DE DROIT CRIMINEL 88 (1912), cited in Ferrari, Political Crime and Criminal Evidence, 3 MINN. L. REV. 365 (1919).7 Lora L. Deere, Political Offences in the Law and Practice of Extradition, 27 AM. J. INT’L. L. 248 (Supp. 1933).8 In Re: Castioni, [1891] 1 Q.B. 149.

Bollozos, Kyle Genesis G.2D – PIL – Atty. Victoria Loanzon

As provided in P.D. 10699, extradition proceedings, between any foreign state or government with which the Philippines has entered into an extradition treaty or convention with, are generally conducted in the following sequence: First, a request shall be made by the Foreign Diplomat of the requesting state, addressed to the Secretary of Foreign affairs which shall be accompanied by: an original or an authentic copy of either, (a) the decision or sentence imposed upon the accused by the court of the requesting state, or (b) the criminal charge and the warrant of arrest issued by the authority of the requesting state; a recital of the acts for which extradition is requested; the text of the applicable law or a statement of the contents of said law, and the designation or description of the offense by the law; and such other documents or information in support of the request. Second, the Secretary of Foreign Affairs shall forward the request to the Secretary of Justice who shall appoint an attorney to take charge of the case and to file the same to the RTC. Third, the presiding judge of the court shall, as soon as practicable, summon the accused to appear and to answer the petition. Fourth, a hearing on the case shall be conducted. Fifth, upon conclusion of the hearing, the court shall render a decision either granting the extradition or dismissing the petition. Meanwhile, the accused may within 10 days from receipt of the decision of the RTC granting extradition, appeal the same to the CA. The appeal shall stay the execution of the decision of the Court of First Instance.

Due Process and Bail in Extradition Proceedings

As established in a number of cases, an extradition proceeding is neither criminal nor civil in nature, it is sui generis or a class of its own, tracing its existence wholly to treaty obligations between different nations.10 Because of this unique feature, questions may arise as to the application of fundamental rights, such as the two basic due process rights to notice and hearing as well as the right to bail, to extradition proceedings. In following cases, the Supreme Court had the occasion to shed light on these important matters. In the case of Secretary of Justice v. Lantion11, the High Court held that, since the evaluation stage of extradition proceedings is akin to an investigative proceeding which may lead to the deprivation of liberty of a prospective extraditee, the basic rights of notice and hearing must be observed for otherwise, the proceedings will be rendered invalid. Hence, the court ordered the Secretary of Justice to furnish Mark Jimenez copies of the extradition request and its supporting papers in order to dispense with his basic due process rights to notice and hearing.

Meanwhile, the case of Olalia12 tackled the right to bail in extradition proceedings. In said case, the Court conceded that the extradition law of the Philippines does not provide for the grant of bail to an extraditee, it however, reiterated that there is also no provision prohibiting the same from filing a motion for bail, a right to due process under the Constitution. Hence, it acceded to the modern trend in public international law which placed primacy on the worth of the individual person and the sanctity of human rights and allowed Munoz to post bail factoring in also the fact that he had been detained for over two years without having been convicted of any crime.

9 Supra, at note 1.10 Government of Hong Kong v. Olalia, G.R. No. 153675, April 19, 2007.11 G.R. No. 139465, January 18, 2000.12 Supra, note 10.