Monday, January 11, 2010

Leaving on a Jet Plane: Extradition

By Obiter07

The spectacle last year in the papers referred to an agreement on the transfer of sentenced persons where a Philippine convict was allowed to go to Spain to serve the rest of his sentence under less strenuous surroundings presumably.  This will discuss another specie of flight, not from the authorities, but one that can bring a fugitive straight into their arms.  This is called extradition.  Even now, a famous director is awaiting the results of such a proceeding in Switzerland for an alleged rape he committed so many years ago.

Extradition in the Philippine is still governed by Presidential Decree, P.D. No. 1609 which was issued in 1977.  As defined, 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. (Section 2)”  Conviction is not required as the conduct of an investigation may be sufficient to merit extradition. 

            The aims of extradition are as follows:

“SECTION 3.             Aims of Extradition. — Extradition may be granted only pursuant to a treaty or convention, and with a view to:
(a)        A criminal investigation instituted by authorities of the requesting state or government charging the accused with an offense punishable under the laws both of the requesting state or government and the Republic of the Philippines by imprisonment or other form of deprivation of liberty for a period stipulated in the relevant extradition treaty or convention; or 
(b)        The execution of a prison sentence imposed by a court of the requesting state or government, with such duration as that stipulated in the relevant extradition treaty or convention, to be served in the jurisdiction of and as a punishment for an offense committed by the accused within the territorial jurisdiction of the requesting state or government.”


But not all states can request extradition.  It may be requested by another state only if it has an extradition treaty with the Philippines through the following steps:

“SECTION 4. Request; By whom made; Requirements. —
(1)        Any foreign state or government with which the Republic of the Philippines has entered into extradition treaty or convention, and only when the relevant treaty or convention remains in force, may request for the extradition of any accused who is or suspected of being in the territorial jurisdiction of the Philippines.

(2)        The request shall be made by the Foreign Diplomat of the requesting state or government, addressed to the Secretary of Foreign Affairs, and shall be accompanied by:

(a)        The original or an authentic copy of either —
(1)        the decision or sentence imposed upon the accused by the court of the requesting state or government; or
(2)        the criminal charge and the warrant of arrest issued by the authority of the requesting state or government having jurisdiction of the matter or some other instruments having the equivalent legal force.

(b)        A recital of the acts for which extradition is requested, with the fullest particulars as to the name and identity of the accused, his whereabouts in the Philippines, if known, the acts or omissions complained of, and the time and place of the commission of these acts;  casia

(c)        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, sufficient for evaluation of the request; and

(d)       Such other documents or information in support of the request.”

After the filing of the request, this is forwarded through the Department of Justice which will file a petition with the Regional Trial Court (Section 5). Upon receipt of the petition, the courts will summon the accused to appear and answer same on the day and hour fixed in the order.  A warrant of arrest can already be issued if it appears that his immediate arrest and detention will best serve the interests of justice (Section 6).

In urgent cases, the   requesting state may request for the provisional arrest of the accused pending receipt of the request for extradition (Section 20). Counsel de oficio may be appointed for the accused if he does not have legal counsel (Section 7). The hearing is public unless the accused requests for a hearing in chambers (Section 8).

The proceedings will be governed by the Rules of Court insofar as this will be consistent with the summary nature of the proceedings (Section 9).After hearing, the court can either grant the extradition or dismiss the petition (Section 10). The accused can appeal within ten (10) days from receipt of the decision to the Court of Appeals. The appeal stays the execution of the decision. However, the decision of the Court of Appeals is final and executory (Section 12).

Once the decision is final, the accused will be placed in the custody of the authorities of the requesting state or government, at a time and place to be determined by the Secretary of Foreign Affairs, after consultation with the foreign diplomat of the requesting state or government (Section 16).  Any articles found in the possession of the accused who has been arrested may be seized upon order of the court at the instance of the requesting state or government, and such articles shall be delivered to the foreign diplomat of the requesting state or government who shall issue the corresponding receipt therefore (Section 17).

Decided Cases

The Supreme Court has had occasion to rule on extradition cases.  In Government of United States of America vs. Purganan, et al. [G.R. No. 148571,  September 24, 2002], it held that the right to bail is available only in criminal and not extradition proceedings.

But this ruling was re-examined in GOVERNMENT OF HONGKONG SPECIAL ADMINISTRATIVE REGION vs. HON. FELIXBERTO T. OLALIA, JR., et al. [G.R. No. 153675.  April 19, 2007.] In light of current developments and the increased emphasis on the right of the individual, the Court ruled that:

“At first glance, the above ruling applies squarely to private respondent's case. However, this Court cannot ignore the following trends in international law: (1) the growing importance of the individual person in public international law who, in the 20th century, has gradually attained global recognition; (2) the higher value now being given to human rights in the international sphere; (3) the corresponding duty of countries to observe these universal human rights in fulfilling their treaty obligations; and (4) the duty of this Court to balance the rights of the individual under our fundamental law, on one hand, and the law on extradition, on the other.”  

In its re-examination, the Court ruled that bail is available in extradition proceedings since it is akin to criminal proceedings.  However, t it is the burden of the extraditee to establish by “clear and convincing evidence” that he is not a flight risk.

“But 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." This is shown by Section 6 of P.D. No. 1069 (The Philippine Extradition Law) which mandates the "immediate arrest and temporary detention of the accused" if such "will best serve the interest of justice." We further note that 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."  

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.


While our extradition law does not provide for the grant of bail to an extraditee, however, there is no provision prohibiting him or her from filing a motion for bail, a right to due process under the Constitution.  

The applicable standard of due process, however, should not be the same as that in criminal proceedings. In the latter, the standard of due process is premised on the presumption of innocence of the accused. As Purganan correctly points out, it is from this major premise that the ancillary presumption in favor of admitting to bail arises. Bearing in mind the purpose of extradition proceedings, the premise behind the issuance of the arrest warrant and the "temporary detention" is the possibility of flight of the potential extraditee. This is based on the assumption that such extraditee is a fugitive from justice. Given the foregoing, the prospective extraditee thus bears the onus probandi of showing that he or she is not a flight risk and should be granted bail.   


We should not, therefore, deprive an extraditee of his right to apply for bail, provided that a certain standard for the grant is satisfactorily met.

An extradition proceeding being sui generis, the standard of proof required in granting or denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil cases.  While administrative in character, the standard of substantial evidence used in administrative cases cannot likewise apply given the object of extradition law which is to prevent the prospective extraditee from fleeing our jurisdiction.  In his Separate Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard which he termed "clear and convincing evidence" should be used in granting bail in extradition cases. According to him, this standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence. The potential extraditee must prove by "clear and convincing evidence" that he is not a flight risk and will abide with all the orders and processes of the extradition court.  xxx”

One can no longer be assured that a border-crossing may free you from punishment. Even if bail is available, this relief may be fleeting once the court decides to put you on the next flight to answer for your crimes.


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