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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 Philippines 4, 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.
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 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 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
5 Id.
6 REN 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. INTL. L. 248 (Supp.
1933).

Bollozos, Kyle Genesis G.


2D PIL Atty. Victoria Loanzon
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
Castionis 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
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

8 In Re: Castioni, [1891] 1 Q.B. 149.


9 Supra, at note 1.

Bollozos, Kyle Genesis G.


2D PIL Atty. Victoria Loanzon
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.

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.