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Extradition procedures and principles in the United States

In one of the Senate hearings in relation to the NBN investigation, a point was raised regarding a
request for extradition of potential witnessess allegedly in the United States of America. Extradition
is a big word for non-lawyers who watched the Senate investigation, so it may be helpful to have a
brief discussion on this subject.
Extradition, as applied in the Philippines, 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. (Sec. 2[a], Presidential Decree No. 1069, Prescribing the Procedure for the
Extradition of Persons Who Have Committed Crimes in a Foreign Country). In general, extradition
is 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. (Government of Hongkong Special
Administrative Region vs. Judge Olalia, Jr., G.R. No. 153675, 19 April 2007)
The Philippines and the United States has a treaty on extradition, also known as the RP-US
Extradition Treaty, which was executed on 13 November 1994. The pertinent Philippine law, on
the other hand, is Presidential Decree No. 1069, issued by President Ferdinand Marcos on 13
January 1977.
Extradition is a two-way street, so to speak. The Philippines could issue a request for extradition
with the proper authorities of the United States, and vice versa. Since the dicussion in the Senate
concerns a Philippine request, lets first discuss the extradition procedure in the United States.
Luckily, this procedure was noted in the case of Secretary of Justice vs. Lantion ([G.R. No. 139465,
18 January 2000), wherein the petitioner attached a letter from the Criminal Division of the U.S.
Department of Justice, summarizing the U.S. extradition procedures and principles, which are
basically governed by a combination of treaties (with special reference to the RP-US Extradition
Treaty), federal statutes, and judicial decisions:
1. All requests for extradition are transmitted through the diplomatic channel. In urgent
cases, requests for the provisional arrest of an individual may be made directly by the
Philippine Department of Justice to the U.S. Department of Justice, and vice-versa. In
the event of a provisional arrest, a formal request for extradition is transmitted
subsequently through the diplomatic channel.
2. The Department of State forwards the incoming Philippine extradition request to the
Department of Justice. Before doing so, the Department of State prepares a declaration
confirming that a formal request has been made, that the treaty is in full force and effect,
that under Article 17 thereof the parties provide reciprocal legal representation in
extradition proceedings, that the offenses are covered as extraditable offenses under
Article 2 thereof, and that the documents have been authenticated in accordance with
the federal statute that ensures admissibility at any subsequent extradition hearing.
3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the
prospective extraditee (18 U.S.C. 3184). Said judge or magistrate is authorized to
hold a hearing to consider the evidence offered in support of the extradition request
4. At the hearing, the court must determine whether the person arrested is extraditable to
the foreign country. The court must also determine that (a) it has jurisdiction over the

defendant and jurisdiction to conduct the hearing; (b) the defendant is being sought for
offenses for which the applicable treaty permits extradition; and (c) there is probable
cause to believe that the defendant is the person sought and that he committed the
offenses charged (Ibid.)
5. The judge or magistrate judge is vested with jurisdiction to certify extraditability after
having received a "complaint made under oath, charging any person found within his
jurisdiction" with having committed any of the crimes provided for by the governing
treaty in the country requesting extradition (Ibid.) [In this regard, it is noted that a long
line of American decisions pronounce that international extradition proceedings partake
of the character of a preliminary examination before a committing magistrate, rather
than a trial of the guilt or innocence of the alleged fugitive (31A Am Jur 2d 826).]
6. If the court decides that the elements necessary for extradition are present, it
incorporates its determinations in factual findings and conclusions of law and certifies
the persons extraditability. The court then forwards this certification of
extraditability to the Department of State for disposition by the Secretary of State. The
ultimate decision whether to surrender an individual rests with the Secretary of State (18
U.S.C. 3186).
7. The subject of an extradition request may not litigate questions concerning the
motives of the requesting government in seeking his extradition. However, a person
facing extradition may present whatever information he deems relevant to the Secretary
of State, who makes the final determination whether to surrender an individual to the
foreign government concerned.
The same case also discussed the Philippine extradition procedure, which will be the subject of
another post.