CHAPTER 29: EXTRADITION
PRINCIPLES AND CASES IN PRIVATE INTERNATIONAL LAW:
A PROCEDURAL APPROACH
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MARK ANGELO S. DELA PEÑA
To cite this online book, please use the following:
Dela Peña. 2023. "Principles and Cases in Private International Law: A Procedural Approach." Published by Project Jurisprudence - Philippines. Published: September 17, 2023. Link: [Insert link] Last accessed: [Insert date of access].
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As a general rule, the Philippine state is not under obligation to cause the arrest and turn over the person of anyone who committed a crime in a foreign country to the government authorities of such country.[1] This is not only based on established international law principles but also on sound constitutional policies of the Philippines
Under the 1987 Constitution of the Philippines, the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.[2]
Extradition has been characterized as the right of a foreign power, created by treaty, to demand the surrender of one accused or convicted of a crime within its territorial jurisdiction, and the correlative duty of the other state to surrender him to the demanding state.[3] In other words, a requesting state may demand a treaty obligation from a requested state to cause the arrest of a person who has committed a crime in the territory of the requesting state. After such arrest, the requesting state also may demand that such person be surrendered by the requested state to the requesting state.[4]
It is not a criminal proceeding.[5] Even if the potential extraditee is a criminal, an extradition proceeding is not by its nature criminal, for it is not punishment for a crime, even though such punishment may follow extradition.[6] It is sui generis, tracing its existence wholly to treaty obligations between different nations.[7] It is not a trial to determine the guilt or innocence of the potential extraditee.[8] Nor is it a full-blown civil action, but one that is merely administrative in character.[9] Its object is to prevent the escape of a person accused or convicted of a crime and to secure his/her return to the state from which s/he fled, for the purpose of trial or punishment.[10]
However, while extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a deprivation of liberty on the part of the potential extraditee and (b) the means employed to attain the purpose of extradition is also “the machinery of criminal law.”[11] This is shown by Section 6 of Presidential Decree No. 1069[12] which mandates the immediate arrest and temporary detention of the accused if such will best serve the interest of justice. Section 20 allows the requesting state in case of urgency to ask for the provisional arrest of the accused, pending receipt of the request for extradition; and that release from provisional arrest shall not prejudice re-arrest and extradition of the accused if a request for extradition is received subsequently.[13]
Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal process. A potential extraditee may be subjected to arrest, to a prolonged restraint of liberty, and forced to transfer to the demanding state following the proceedings. Temporary detention may be a necessary step in the process of extradition, but the length of time of the detention should be reasonable.[14]
While extradition applies to those who are merely charged with an offense but have not been brought to trial; to those who have been tried and convicted and have subsequently escaped from custody; and to those who have been convicted in absentia, it, however, does not apply to persons merely suspected of having committed an offense but against whom no charges has been laid or to a person whose presence is desired as a witness or for obtaining or enforcing a civil judgment.[15]
EXTRADITION PROCEEDING
Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its supporting documents are sufficient and complete in form and substance, he shall deliver the same to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to take charge of the case.[16] The lawyer designated shall then file a written petition with the proper regional trial court of the province or city, with a prayer that the court take the extradition request under consideration.[17]
The presiding judge of the Regional Trial Court (RTC), upon receipt of the petition for extradition, shall, as soon as practicable, issue an order summoning the prospective extraditee to appear and to answer the petition on the day and hour fixed in the order. The judge may issue a warrant of arrest if it appears that the immediate arrest and temporary detention of the accused will best serve the ends of justice,[18] particularly to prevent the flight of the prospective extraditee.
The Philippine Extradition Law[19] does not specifically indicate whether the extradition proceeding is criminal, civil, or a special proceeding. Nevertheless, Section 9 thereof provides that in the hearing of the extradition petition, the provisions of the Rules of Court, insofar as practicable and not inconsistent with the summary nature of the proceedings, shall apply. During the hearing, Section 8 of the said law provides that the attorney having charge of the case may, upon application by the requesting state, represent the latter throughout the proceedings.[20]
Upon conclusion of the hearing, the court shall render a decision granting the extradition and giving the reasons therefor upon a showing of the existence of a prima facie case, or dismiss the petition.[21] Said decision is appealable to the Court of Appeals, whose decision shall be final and immediately executory.[22] The provisions of the Rules of Court governing appeal in criminal cases in the Court of Appeals shall apply in the aforementioned appeal, except for the required 15-day period to file brief.[23]
It is the Philippine trial court, in an extradition request, that determines whether or not the offense mentioned in the petition is extraditable based on the application of the dual criminality rule and other conditions, for example, mentioned in Article 2 of the Republic of the Philippines-United States (RP-US) Extradition Treaty. The trial court also determines whether or not the offense for which extradition is requested is a political one.[24]
ROLE OF THE SECRETARY OF JUSTICE IN EXTRADITION
A strict observance of the Philippine Extradition Law indicates that the only duty of the Secretary of Justice is to file the extradition petition after the request and all the supporting papers are forwarded to him by the Secretary of Foreign Affairs. It is the latter official who is authorized to evaluate the extradition papers, to assure their sufficiency, and under to determine whether or not the request is politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation.[25] It would seem that the Secretary of Justice has the ministerial duty of filing the extradition papers.[26]
EXTRADITEE’S RIGHT TO DUE PROCESS
In treating the matter of the due process rights of an extriditee, it is imperative to quote the Supreme Court in the case of Cuevas v. Muñoz.[27] In that case, it was said:
“In tilting the balance in favor of the interests of the State, the Court stresses that it is not ruling that the private respondent has no right to due process at all throughout the length and breath of the extrajudicial proceedings. Procedural due process requires a determination of what process is due, when it is due and the degree of what is due. Stated otherwise, a prior determination should be made as to whether procedural protections are at all due and when they are due, which in turn depends on the extent to which an individual will be condemned to suffer grievous loss.[28] We have explained why an extraditee has no right to notice and hearing during the evaluation stage of the extradition process. As aforesaid, [Presidential Decree No.] 1069[29] affords an extraditee sufficient opportunity to meet the evidence against him once the petition is filed in court. The time for the extraditee to know the basis of the request for his extradition is merely moved to the filing in court of the formal petition for extradition. The extraditee's right to know is momentarily withheld during the evaluation stage of the extradition process to accommodate the more compelling interest of the State to prevent escape of potential extraditees which can be precipitated by premature information of the basis of the request for his extradition. No less compelling at that stage of the extradition proceedings is the need to be more deferential to the judgment of a co-equal branch of the government, the Executive, which has been endowed by our Constitution with greater power over matters involving our foreign relations. Needless to state, this balance of interests is not a static but a moving balance which can be adjusted as the extradition process moves from the administrative stage to the judicial stage and to the execution stage depending on factors that will come into play. In sum, we rule that the temporary hold on private respondent's privilege of notice and hearing is a soft restraint on his right to due process which will not deprive him of fundamental fairness should he decide to resist the request for his extradition to the United States. There is no denial of due process as long as fundamental fairness is assured a party.”
TREATY LIMITATIONS IN EXTRADITION
A paramount principle of the law of extradition provides that the Philippine State, for example, may not surrender any individual for any offense not included in a treaty of extradition. This principle arises from the reality of extradition as a derogation on sovereignty. Extradition is an intrusion into the territorial integrity of the host State and a delimitation of the sovereign power of the State within its own territory.[30]
The act of extraditing amounts to a delivery by the Philippines of a person accused or convicted of a crime, to another (requesting) state within whose territorial jurisdiction, actual or constructive, it was committed and which asks for his surrender with a view to execute justice.[31] As it is an act of surrender of an individual found in a sovereign state to another state which demands his/her surrender,[32] an act of extradition, even with a treaty rendered executory upon ratification by appropriate authorities, does not impose an obligation to extradite on the requested state until the latter has made its own determination of the validity of the requesting state’s demand, in accordance with the requested state’s own interests.
The principles of international law recognize no right of extradition apart from that arising from treaty.[33] Pursuant to these principles, states enter into treaties of extradition principally for the purpose of bringing fugitives of justice within the ambit of their laws, under conventions recognizing the right of nations to mutually agree to surrender individuals within their jurisdiction and control, and for the purpose of enforcing their respective municipal laws. Since punishment of fugitive criminals is dependent mainly on the willingness of host state (the requested state) to apprehend them and revert them to the state where their offenses were committed,[34] jurisdiction over such fugitives and subsequent enforcement of penal laws can be effectively accomplished only by agreement between States through treaties of extradition.
It is common for contracting states to delineate in their treaty the parameters to be observed in an extradition process. For example, it is common for the Philippines to adhere to and insist on certain standards such as but not limited to the rule of specialty and the dual criminality rule. Other standards are the extraterritoriality clause, the political offense exception clause, the death penalty exception clause, the extradition of nationals clause, the retroactivity clause and the lapse of time clause.
Under the rule of specialty in international law, a requested state shall surrender to a requesting state a person to be tried only for a criminal offense specified in their treaty of extradition. In other words, the extradition treaty must specify the crimes for which extradition may be properly requested by either of the contracting states. Outside the list of extraditable offenses, the requested state is justified in refusing to grant the request for extradition by the requesting state.
Also, under the dual criminality rule,[35] the requested state is not bound to extradite a person sought by the requesting state if the offense for which the extraditee has been convicted or charged – or for which s/he is being extradited – does not come within the descriptions of offenses specified in the extradition treaty. For example, the requesting state seeks the extradition of a person for the offense of cybercrime data destruction committed within its territory, the requested state is under treaty obligation to proceed properly with the extradition request even if the name of the offense is not exactly the same as that used in the former.[36] In other words, it is not the nomenclature of the crime that will control the dual criminality rule but the nature of the offense. In the example given above regarding cybercrime data destruction, it is submitted that Philippine law on malicious mischief may suffice.
The dual criminality clause usually contains a standard definition of what constitutes an extraditable offense. For example, the clause may provide that an offense is extraditable if it is punishable under the laws of both the state 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, may also be considered extraditable. If the extradition request involves a fugitive, for instance, the treaty may required an extradition request should be granted only if the remaining sentence to be served is more than six months.[37]
Dual criminality means, for example, that an offense is not extraditable if in the United States 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 obviates the need to renegotiate or supplement a treaty when it becomes necessary to broaden the definition of extraditable offenses.[38]
EXTRATERRITORIAL OFFENSES
In order to extradite individuals charged with extraterritorial crimes (offenses committed outside the territory of the requesting state) such as international drug traffickers and terrorists, provision must be made in extradition treaties. The extradition treaty, for example, may provide that the requested state shall grant extradition for an offense committed outside the requesting state’s territory if the requested state’s laws provide that an offense committed outside its territory is punishable in similar circumstances. If the requested state’s laws do not provide that an offense committed outside its territory is punishable in similar circumstances, the executive branch of the requested state has discretionary authority to submit the extradition request to its courts for decision.[39] In this relation, the Revised Penal Code of the Philippines[40] provides: “Except as provided in the treaties and laws of preferential application, the provisions of this Code shall be enforced not within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, but also outside of its jurisdiction, against those who: (1) Should commit an offense while on a Philippine ship or airship. (2) Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippine Islands. (3) Should be liable for acts connected with the introduction into these Islands of the obligations and securities mentioned in the preceding number. (4) While being public officers or employees, should commit an offense in the exercise of their functions; or (5) Should commit any of the crimes against national security and the law of nations, defined in Title One of Book Two of this Code.”
If the extradition treaty creates an obligation to extradite based on whether the requested state also punishes offenses outside its territory in similar circumstances, this, in effect, is a manifestation as well of the dual criminality rule as applied to extraterritorial offenses. The phrase “in similar circumstances” may be sufficiently vague but it is acceptable in the sense that it gives a reluctant requested state some wiggle room to avoid its possible obligation to extradite individuals for crimes committed outside its territory.[41]
POLITICAL OFFENSE EXCEPTION
In recent years, the United States has been promoting a restrictive view on the political offense exception in furtherance of its campaign against terrorism, drug trafficking, and money laundering. The political offense exception entered into by a state may, however, be put in a broader language than that contained in other extradition treaties said state enters in.[42]
The exclusion of certain violent crimes (i.e. murder, kidnapping, and others) from the political offense exception has become standard in many the United States’ extradition treaties, reflecting the concern of the United States government and certain other governments with international terrorism. The exclusion from the political offense exception for crimes covered by multilateral international agreements, and the obligation to extradite for such crimes or submit the case to prosecution by the requested state is now a standard exclusion. Nevertheless, a requested state has the option either to extradite or to submit the case to its competent authorities for prosecution. For example, a requested state could refuse to extradite and instead declare that it will itself prosecute the offender.[43]
THE DEATH PENALTY EXCEPTION
Different jurisdictions appear to have different views on capital punishment. In the Philippines, the 1987 Constitution[44] provides: “Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua.” Hence, for example, the Philippine state may refuse extradition for an offense punishable by the death penalty in the requesting state if the same offense is not punishable by the death penalty in the requested state, unless the requesting state gives assurances satisfactory to the requested state that the death penalty will not be imposed or carried out.[45]
THE EXTRADITION OF NATIONALS
A state party in an extradition treaty may or may not object to extraditing its own nationals. In fact, the trend in extradition treaties is to negotiate the same without nationality restrictions. Many countries, however, refuse to extradite their own nationals. Depending on which countries or which governments are negotiating extradition treaties, they take varying positions on the nationality issue.[46]
Unlike other extradition treaties, The Philippine Treaty unequivocally states that a party may not refuse extradition on the ground the person sought is one of its citizens (art. 6).
6. RETROACTIVITY
The proposed treaty states that it shall apply to offenses committed before as well as after it enters into force (art. 19). These retroactivity provisions do not violate the Constitution's prohibition against the enactment of ex post facto laws which applies only to enactments making criminal acts that were innocent when committed, not to the extradition of a defendant for acts that were criminal when committed but for which no extradition agreement existed at the time.
THE RULE OF SPECIALTY
The rule of specialty, which prohibits a requesting state from trying an extradited individual for an offense other than the one for which he was extradited or which prohibits the extradition if the offense is not covered by the extradition treaty, has become a standard provision included in bilateral extradition treaties. For example, the contracting states may provide exceptions to the rule of specialty that are designed to allow a requesting state some latitude in prosecuting offenders for crimes other than those for which they had been specifically extradited.[47]
LAPSE OF TIME
The extradition treaty, by the assent of the contracting states, may stipulate on a provision denying extradition if barred by the statute of limitations of either the requesting or requested state. This is natural for states to consider, especially because the statutes of limitations of countries foreign to each other are normally not the exactly the same.
EXAMPLE OF AN EXTRADITION TREATY
To give the student a closer look into the legalities and technicalities of an extradition treaty, the Extradition Treaty between the Government of the Republic of the Philippines and the Government of the United States of America[48] is quoted in full below.
November 13, 1994
EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA
TABLE OF CONTENTS
Article 1 Obligation to Extradite
Article 2 Extraditable Offenses
Article 3 Political and Military Offenses
Article 4 Prior Prosecution
Article 5 Capital Punishment
Article 6 Extradition of Nationals
Article 7 Extradition Procedures and Required
Documents
Article 8 Language
Article 9 Provisional Arrest
Article 10 Decision and Surrender
Article 11 Temporary and Deferred Surrender
Article 12 Requests for Extradition Made by More
than One State
Article 13 Rule of Speciality
Article 14 Voluntary Return
Article 15 Seizure and Surrender of Property
Article 16 Transit
Article 17 Representation and Expenses
Article 18 Consultation
Article 19 Application
Article 20 Ratification and Entry into Force
Article 21 Termination
EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA
The Government of the Republic of the Philippines and the Government of the United States of America,
Desiring to provide for more effective cooperation between the Contracting Parties in the repression of crime; and
Desiring to conclude a Treaty for the reciprocal extradition of offenders;
Have agreed as follows:
ARTICLE 1
OBLIGATION TO EXTRADITE
The Contracting Parties agree to extradite to each other, pursuant to the provisions of this Treaty, persons whom the authorities in the Requesting State have charged with or convicted of an extraditable offense.
ARTICLE 2
EXTRADITABLE OFFENSES
1. An offense shall be an extraditable offense if it is punishable under the laws in both Contracting Parties by deprivation of liberty for a period of more than one year, or by a more severe penalty.
2. An offense shall also be an extraditable offense notwithstanding paragraph 1 of this Article if it consists of an attempt or a conspiracy to commit, aiding or abetting, counselling, causing or procuring the commission of or being an accessory before or after the fact to, any offense that is an extraditable offense pursuant to paragraph 1 and if it is punishable under the laws of the Requesting State by deprivation of liberty for a period of more than one year, or by a more severe penalty.
3. For the purposes of this Article, an offense shall be an extraditable offense:
(a) whether or not the laws in the Contracting Parties place the offense within the same category of offenses or describe the offense by the same terminology; or
(b) whether or not the offense is one for which United States federal law requires the showing of such matters as interstate transportation, or use of the mails or of other facilities affecting interstate or foreign commerce, such matters being merely for the purpose of establishing jurisdiction in a United States federal court.
4. If the Gffense was committed outside of the territory of the Requesting State, extradition shall be granted in accordance with the provisions of this Treaty:
(a) if the laws in the Requested State provide for punishment of an offense committed outside of its territory in similar circumstances; or
(b) if the executive authority of the Requested State, in its discretion, decides to submit the case to its courts for the purpose of extradition.
5. If extradition has been granted for an extraditable offense, it shall also be granted for any other offense specified in the request, even if the latter offense is punishable by less than one year's deprivation of liberty, provided that all other requirements of extradition are met.
ARTICLE 3
POLITICAL AND MILITARY OFFENSES
1. Extradition shall not be granted if the offense for which extradition is requested is a political offense.
2. For the purposes of this Treaty, the following offenses shall not be considered to be political offenses:
(a) the murder or other willful crime against the person of a Head of State of one of the Contracting Parties, or a member of the Head of State's family;
(b) an offense for which both Contracting Parties have the obligation pursuant to a multilateral international agreement to extradite the person sought or to submit the case to their competent authorities for decision as to prosecution; and
(c) a conspiracy or attempt to commit any of the foregoing offenses, or aiding or abetting a person who commits or attempts to commit such offenses.
3. Extradition shall not be granted if the executive authority of the Requested State determines that the request was politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation.
ARTICLE 4
PRIOR PROSECUTION
1. Extradition shall not be granted when the person sought has been tried and convicted or acquitted in the Requested State for the offense for which extradition is requested.
2. Extradition shall not be precluded by the fact that the competent authorities in the Requested State have decided not to prosecute the person sought for the acts for which extradition is requested, or have decided to discontinue any criminal proceedings which have been initiated against the person sought for those acts.
ARTICLE 5
CAPITAL PUNISHMENT
1. When the offense for which extradition is requested is punishable by death under the laws in the Requesting State, and the laws in the Requested State do not permit such punishment for that offense, extradition may be refused unless the Requesting State provides such assurances as the Requested State considers sufficient that if the death penalty is imposed, it will not be carried out.
2. In instances in which a Requesting State provides an assurance in accordance with paragraph 1 of this Article, the death penalty, if imposed by the courts of the Requesting State, shall not be carried out.
ARTICLE 6
EXTRADITION OF NATIONALS
Extradition shall not be refused on the ground that the person sought is a citizen of the Requested State.
ARTICLE 7
EXTRADITION PROCEDURES AND REQUIRED DOCUMENTS
1. All requests for extradition shall be submitted through the diplomatic channel.
2. All requests for extradition shall be supported by:
(a) documents, statements, or other types of information which describe the identity and probable location of the person sought;
(b) a statement of the facts of the offense and the procedural history of the case;
(c) a statement of the provisions of the law describing the essential elements of the offense for which extradition is requested;
(d) a statement of the provisions of law describing the punishment for the offense;
(e) a statement of the provisions of the law describing any time limit on the prosecution or the execution of punishment for the offense; and
(f) the documents, statements, or other types of information specified in paragraph 3 or paragraph 4 of this Article, as applicable.
3. In addition to the documents referred to in paragraph 2, a request for extradition of a person who is sought for prosecution shall be accompanied by such evidence as, according to the law of the Requested State, would provide probable cause for his arrest and committal for trial if the offense had been committed there and:
(a) a copy of the warrant or order of arrest issued by a judge or other competent authority; and
(b) a copy of the charging document.
4. A request for extradition relating to a person who has been convicted of the offense for which extradition is sought shall also be supported by:
(a) a copy of the judgment of conviction, or, if such copy is not available, a statement by a judicial authority that the person has been convicted;
(b) information establishing that the person sought is the person to whom the conviction refers;
(c) a copy of the sentence imposed, if the person sought has been sentenced, and a statement establishing to what extent the sentence has been carried out; and
(d) in the case of a person who has been convicted in absentia, the documents required in paragraph 3.
5. The documents which accompany an extradition request shall be received and admitted as evidence in extradition proceedings if:
(a) they are certified by the principal diplomatic or consular officer of the Requesting State resident in the Requested State; or
(b) they are certified or authenticated in any other manner accepted by the law of the Requested State.
ARTICLE 8
LANGUAGE
All documents submitted by either Contracting Party shall be in the English language, or shall be translated into the English language, by the Requesting State.
ARTICLE 9
PROVISIONAL ARREST
1. In case of urgency, a Contracting Party may request the provisional arrest of the person sought pending presentation of the request for extradition. A request for provisional arrest may be transmitted through the diplomatic channel or directly between the Philippine Department of Justice and the United States Department of Justice .
2. The application for provisional arrest shall contain:
(a) a description of the person sought;
(b) the location of the person sought, if known;
(c) a brief statement of the facts of the case, including, if possible, the time and location of the offense;
(d) a description of the laws violated;
(e) a statement of the existence of a warrant of arrest or finding of guilt or judgment of conviction against the person sought; and
(f) a statement that a request for extradition for the person sought will follow.
3. The Requesting State shall be notified without delay of the disposition of its application and the reasons for any denial.
4. A person who is provisionally arrested may be discharged from custody upon the expiration of sixty (60) days from the date of arrest pursuant to this Treaty if the executive authority of the Requested State has not received the formal request for extradition and the supporting documents required in Article 7.
5. The fact that the person sought has been discharged from custody pursuant to paragraph 4 of this Article shall not prejudice the subsequent rearrest and extradition of that person if the extradition request and supporting documents are delivered at a later date.
ARTICLE 10
DECISION AND SURRENDER
1. The Requested State shall promptly notify the Requesting State through the diplomatic channel of its decision on the request for extradition.
2. If the request is denied in whole or in part, the Requested State shall provide information as to the reasons for the denial. The Requested State shall provide copies of pertinent judicial decisions upon request.
3. If the request for extradition is granted, the authorities of the Contracting Parties shall agree on the time and place for the surrender of the person sought.
4. If the person sought is not removed from the territory of the Requested State within the time prescribed by the law of that State, that person may be discharged from custody, and the Requested State may subsequently refuse extradition for the same offense.
ARTICLE 11
TEMPORARY AND DEFERRED SURRENDER
1. If the extradition request is granted in the case of a person who is being prosecuted or is serving a sentence in the territory of the Requested State, the Requested State may temporarily surrender the person sought to the Requesting State for the purpose of prosecution. The person so surrendered shall be kept in custody in the Requesting State and shall be returned to the Requested State after the conclusion of the proceedings against that person, in accordance with conditions to be determined by agreement between the Contracting Parties.
2. The Requested State may postpone the extradition proceedings against a person who is being prosecuted or who is serving a sentence in that State. The postponement may continue until the prosecution of the person sought has been concluded or until such person has served any sentence imposed.
ARTICLE 12
REQUESTS FOR EXTRADITION MADE BY MORE THAN ONE STATE
If the Requested State receives requests from the other Contracting Party and from any other State or States for the extradition of the same person, either for the same offense or for a different offense, the executive authority of the Requested State shall determine to which State it will surrender the person. In making its decision, the Requested State shall consider all relevant factors, including but not limited to:
(a) whether the requests were made pursuant to treaty;
(b) the place where each offense was committed;
(c) the respective interests of the Requesting States;
(d) the gravity of the offenses;
(e) the nationality of the victim;
(f) the possibility of further extradition between the Requesting States; and
(g) the chronological order in which the requests were received from the Requesting States.
ARTICLE 13
RULE OF SPECIALITY
1. A person extradited under this Treaty may not be detained, tried, or punished in the Requesting State except for:
(a) the offense for which extradition has been granted or a differently denominated offense based on the same facts on which extradition was granted, provided such offense is extraditable or is a lesser included offense;
(b) an offense committed after the extradition of the person; or
(c) an offense for which the executive authority of the Requested State consents to the person's detention, trial, or punishment. For the purposes of this subparagraph:
(i) the Requested State may require the submission of the documents called for in Article 7; and
(ii) the person extradited may be detained by the Requesting State for 90 days, or for such longer period of time as the Requested State may authorize, while the request is being processed.
2. A person extradited under this Treaty may not be extradited to a third state for an offense committed prior to his surrender unless the surrendering State consents.
3. Paragraphs 1 and 2 of this Article shall not prevent the detention, trial, or punishment of an extradited person, or the extradition of that person to a third state, if:
(a) that person leaves the territory of the Requesting State after extradition and voluntarily returns to it; or
(b) that person does not leave the territory of the Requesting State within 10 days of the day on which that person is free to do so.
ARTICLE 14
VOLUNTARY RETURN
If the person sought consents in writing to surrender to the Requesting State, the Requested State may surrender the person as expeditiously as possible without further proceedings.
ARTICLE 15
SEIZURE AND SURRENDER OF PROPERTY
1. To the extent permitted under its law, the Requested State may seize and surrender to the Requesting State all articles, documents, and evidence connected with the offense in respect of which extradition is granted. The items mentioned in this Article may be surrendered even when extradition cannot be effected due to the death, disappearance, or escape of the person sought.
2. The Requested State may condition the surrender of the property upon satisfactory assurances from the Requesting State that the property will be returned to the Requested State as soon as practicable. The Requested State may also defer the surrender of such property if it is needed as evidence in the Requested State.
3. The rights of third parties in such property shall be duly respected.
ARTICLE 16
TRANSIT
1. Either Contracting Party may authorize transportation through its territory of a person surrendered to the other State by a third State. A request for transit shall be transmitted through the diplomatic channel or directly between the Philippine Department of Justice and the United States Department of Justice. It shall contain a description of the person being transported and a brief statement of the facts of the case. A person in transit may be detained in custody during the period of transit.
2. No authorization is required where one Contracting Party is transporting a person surrendered to it by a third State using air transportation and no landing is scheduled on the territory of the other Contracting Party. If an unscheduled landing occurs on the territory of one Contracting Party, that State may require that the other Contracting Party request transit as provided in paragraph 1. The Contracting Party in which the unscheduled landing occurs shall detain the person to be transported until the request for transit is received and the transit is effected, so long as the request is received within 96 hours of the unscheduled landing.
ARTICLE 17
REPRESENTATION AND EXPENSES
1. The Requested State shall advise, assist, appear in court on behalf of the Requesting State, and represent the interests of the Requesting State, in any proceedings arising out of a request for extradition.
2. The Requesting State shall bear the expenses related to the translation of documents and the transportation of the person surrendered. The Requested State shall pay all other expenses incurred in that State by reason of the extradition proceedings.
3. Neither State shall make any pecuniary claim against the other State arising out of the anest, detention, examination, or surrender of persons sought under this Treaty.
ARTICLE 18
CONSULTATION
The Department of Justice of the Republic of the Philippines and the Department of Justice of the United States of America may consult with each other directly in connection with the processing of individual cases and in furtherance of maintaining and improving procedures for the implementation of this Treaty.
ARTICLE 19
APPLICATION
This Treaty shall apply to offenses encompassed by Article 2 committed before as well as after the date this Treaty enters into force.
ARTICLE 20
RATIFICATION AND ENTRY INTO FORCE
1. This Treaty shall be subject to ratification; the instruments of ratification shall be exchanged at Manila as soon as possible.
2. This Treaty shall enter into force upon the exchange of the instruments of ratification.
ARTICLE 21
TERMINATION
Either Contracting Party may terminate this Treaty at any time by giving written notice to the other Contracting Party, and the termination shall be effective six months after the date of receipt of such notice.
IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Treaty.
DONE in duplicate at Manila this 13th day of November, 1994.
[1] Puffendorf and Billot. See also US v. Rauscher, 119 US 407, 411, 7 S. Ct. 234, 236, 30 L. ed. 425 (1886).
[2] Section 2 of Article III of the 1987 Constitution of the Philippines.
[3] Factor v. Laubenheimer, 290 US 276, 78 L. Ed. 315, 54 S. Ct. 101; Terlindon v. Ames, 184 US 270, 46 L.Ed. 534, 22 S.Ct. 484; Fong Yue Ting v. US, 149 US 698, 37 L.Ed. 905, 13 S.Ct. 1016; Fitzpatrick v. Williams, 46 F2d. 40; US v. Godwin, 97 F. Supp. 252, affd. 191 F2d. 932; Dominguez v. State, 234 SW 701, 90 Tex. Crim. 92.
[4] See Government of Hong Kong v. Olalia, G.R. NO. 153675, April 19, 2007.
[5] Secretary of Justice v. Lantion, G.R. No. 139465, October 17, 2000, 343 SCRA 377.
[6] US ex rel Oppenheim v. Hecht, 16 F2d. 955, cert den. 273 US 969, 71 L. Ed. 883, 47 S. Ct. 572.
[7] State v. Chase, 107 So. 541, 91 Fla. 413; State v. Quigg, 108 So. 409, 91 Fla. 197.
[8] Benson v. McMahon, 127 US 457, 32 L. Ed. 234, 8 S. Ct. 1240; Jimenez v. Aristequieta, 311 F2d. 547, stay den. 314 F2d. 649.
[9] Spatola v. US, 741 F. Supp. 362, Affd. 925 F2d. 615.
[10] Re Henderson, 145 NW 574, 27 ND 155; State ex rel Tresoder v. Remann, 4 P2d. 866, 165 Wash. 92.
[11] Government of Hong Kong v. Olalia, G.R. NO. 153675, April 19, 2007.
[12] The Philippine Extradition Law.
[13] Government of Hong Kong v. Olalia, G.R. NO. 153675, April 19, 2007.
[14] Government of Hong Kong v. Olalia, G.R. NO. 153675, April 19, 2007.
[15] Weston, Falk, D’Amato, International Law and World Order, 2nd ed., p. 630 (1990)
[16] Paragraph [1], Section 5, P. D. No. 1069.
[17] Paragraph [2], Section 5, P. D. No. 1069.
[18] Paragraph [1], Section 6, P. D. No. 1069.
[19] Presidential Decree No. 1069.
[20] Secretary of Justice v. Lantion, G.R. No. 139465, January 18, 2000, 379 Phil. 165.
[21] Section 10 of Presidential Decree No. 1069.
[22] Section 12 of Presidential Decree No. 1069.
[23] Section 13 of Presidential Decree No. 1069.
[24] Paragraph 1 of Article 3 of the Republic of the Philippines-United States (RP-US) Extradition Treaty.
[25] Paragraph 3 of Article 3 of the Republic of the Philippines-United States (RP-US) Extradition Treaty
[26] Paragraph 1 of Section 5 of the Philippine Extradition Law.
[27] G.R. No. 140520, December 18, 2000, 401 Phil. 752.
[28] Citing Morrisey v. Brewer, 408 U.S. 471, 481 (1972), citing Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 95 L. Ed. 817, 852, 71 S. Ct. 624 (1951) (Frankfurter, J., Concurring), quoted in Goldberg v. Kelly, 397 U.S. 254, 263, 25 L. Ed. 2d 287, 296, 90 S. Ct. 1011 (1970).
[29] The Philippine Extradition Law.
[30] Wright v. Court of Appeals, G.R. No. 113213, August 15, 1994, 305 Phil. 366, citing OPPENHEIM, INTERNATIONAL LAW: A TREATISE 362-369 (1912).
[31] Wright v. Court of Appeals, G.R. No. 113213, August 15, 1994, 305 Phil. 366, citing BISHOP, INTERNATIONAL LAW 471 (1962).
[32] Wright v. Court of Appeals, G.R. No. 113213, August 15, 1994, 305 Phil. 366, citing Terlindan v. Arnes, 184 U.S. 270, 289 (1902).
[33] Wright v. Court of Appeals, G.R. No. 113213, August 15, 1994, 305 Phil. 366, citing Factor v. Laubenheimer, 270 U.S. 276 (1933).
[34] Wright v. Court of Appeals, G.R. No. 113213, August 15, 1994, 305 Phil. 366, citing FENWICK, CASES OF INTERNATIONAL LAW 448 (1951).
[35] Also known as the double criminality rule. See Regina v. Bartle and the Commissioner of Police. House of Lords. 24 March 1999. Written by Lord Browne-Wilkinson.
[36] Gaña Jr, S. H. (2001). Extradition and Legal Assistance: The Philippine Experience. ANNUAL REPORT FOR 1999 and RESOURCE MATERIAL SERIES No. 57, 50.
[37] Senate Executive Report 106-21 (September 29, 2000). “INTER-AMERICAN CONVENTION ON SERVING CRIMINAL SENTENCES ABROAD.”
[38] Senate Executive Report 106-21 (September 29, 2000). “INTER-AMERICAN CONVENTION ON SERVING CRIMINAL SENTENCES ABROAD.”
[39] Senate Executive Report 106-21 (September 29, 2000). “INTER-AMERICAN CONVENTION ON SERVING CRIMINAL SENTENCES ABROAD.”
[40] Act No. 3815, December 08, 1930.
[41] Senate Executive Report 106-21 (September 29, 2000). “INTER-AMERICAN CONVENTION ON SERVING CRIMINAL SENTENCES ABROAD.”
[42] Senate Executive Report 106-21 (September 29, 2000). “INTER-AMERICAN CONVENTION ON SERVING CRIMINAL SENTENCES ABROAD.”
[43] Senate Executive Report 106-21 (September 29, 2000). “INTER-AMERICAN CONVENTION ON SERVING CRIMINAL SENTENCES ABROAD.”
[44] Section 19 of Article III of the 1987 Constitution.
[45] Senate Executive Report 106-21 (September 29, 2000). “INTER-AMERICAN CONVENTION ON SERVING CRIMINAL SENTENCES ABROAD.”
[46] Senate Executive Report 106-21 (September 29, 2000). “INTER-AMERICAN CONVENTION ON SERVING CRIMINAL SENTENCES ABROAD.”
[47] Senate Executive Report 106-21 (September 29, 2000). “INTER-AMERICAN CONVENTION ON SERVING CRIMINAL SENTENCES ABROAD.”
[48] November 13, 1994.
