Extradition Proceeding

Submitted by:
CARMELITA B. JUANZON
MONALIZA S. VIANA
Submitted to:
Atty. MARIA CRISTINA GIMENEZ

Professor
PUP College of Law
(Special issues in international law)
Chapter 10
THE LAW ON EXTRADITION
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CHAPTER 10
I.
EXTRADITION, define is the surrender of an individual
accused or convicted of a crime by the State within whose
territory he is found to the State under whose laws he is
alleged to have committed or to have been convicted of the
crime.
QUESTION: When a criminal flees from a state, how can
that state get him back for prosecution and trial?
The State to which the fugitive flees may deny him
ingress outright, and summarily deport him as an undesirable
alien. But the State can also extend its hospitality to the
fugitive and exercise its right to grant asylum. If a State is
sovereign within its territory, it decides whom to accept and
whom to reject. Most commonly, extradition comes into play
when a person charged with a crime under the law of a State
flees therefrom.
QUESTION: Would a state, for example the Philippines,
be in a legal position to demand the return of the
fugitive to the state to which he has fled?
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Pease on Earth: Issues in Public International Law
Fr. Ranhillio Callangan Aquino, 2008 Ed.
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The answer to the second question used to be disputed,

for some classical icons in international law, Groitus and Vattel,
among them believed that there was a duty to extradite.
On the other hand, it is now settled and hardly disputed
that there is no general obligation to extradite as cited in
McDougal and Reismans International Law in Contemporary
Perspective, New York Press, 1981.
Case: RAMOS VS. DIAZ
Facts:
A complaint for extradition was filed by
plaintiff Jose F. Ramos, Vice Consul in behalf
of the Republic of Cuba, seeking the
surrender and extradition of the defendants,
Humberto Rodrianez Diaz and Roberto Perez
Cruzata.
The Complaints allege that the
defendants are fugitives from justice within
the provision of the Treaty of Extradition
between the United States and Cuba, that
they have been duly tried, convicted and
sentenced for the crime of murder in Cuba
and have escaped from prison in that
country, and that they are now within the
territorial jurisdiction of this court.
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Issue:
Whether a State has the general obligation to
extradite.
Held:
The American federal court not only insisted
that there was no duty to extradite but held
that absent any statutory or treaty authority,
there was no authority for any branch of the
U.S. government to surrender a fugitive
criminal to a foreign government. It further
held that it is an essential part of the case for
the demanding government that it be
established not only that the crime charged is
one of those enumerated in the treaty but
also that it is an extraditable one. The court
found that the crime committed by the
fugitives was a political crime and as such not
subject to extradition under the treaty.
***Political crime is an offense involving overt
acts or omissions which prejudice the interest of
the state, its government, or the political system.
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QUESTION: Did an extradition treaty forbid recourse to

abduction? Did abduction bar prosecution and trial?
In a long line of cases, this question was resolved in
negative. It has been argued that while a treaty provided an
avenue for the return of a fugitive by way of extradition, it
could not be read as excluding abduction.
And even if
abduction might be contrary to principles of international law,
there was nothing to bar a court from exercising its jurisdiction
over an accused who had been brought before it, even forcibly
and deceitfully. Therefore, extradition does not forbid recourse
to abduction, nor abduction of the fugitive bars prosecution
and trial.
Doctrine of Mala Captus Bene Deterntus
(captured wrongly, but detained correctly)
a controversial legal doctrine according to which,
the fact that a person may have been wrongly or
unfairly arrested, will not prejudice a rightful
detention or trial under due process. Where a
person from another country is apprehended by
irregular means, the right to set up as defense the
unlawful manner by which he was brought to a
court belongs to the Government from whose
territory he was wrongfully taken.
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Case: KER VS. ILLINOIS

Facts:
This case involves a Pinkerton Detective
Agent, Henry Julian, who was hired by the
federal government to collect a larcenist,
Frederick Ker, who had fled to Peru. Although
Julian had the necessary extradition papers
the two governments had negotiated an
extradition treaty a decade earlier he found
that there was no official to meet his request
due to the recent Chilean military occupation
of Lima, Peru.
Rather than return home
empty-handed, Julian kidnapped the fugitive,
Ker, with assistance from Chilean forces, and
placed him on a U.S. vessel heading back to
the United States.
Issue:
Whether forcible seizure in another country
and transfer by violence, force, or fraud to
this country could be made available to resist
trial in the state court for the offense now
charged upon him.
Held:
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The Court held that forcible abduction is no

sufficient reason why the party should not
answer when brought within the jurisdiction
of the court which has the right to try him for
such offense, and presents no valid objection
to his trial in such court.
Case: FRISBIE VS. COLLINS
Facts:
The respondent, Shirley Collins, filed a
petition for Habeas Corpus in a United States
District Court seeking release from a
Michigan state prison where he is serving a
life sentence for murder. His petition alleges
that while he was living in Chicago, Michigan
officers
forcibly
seized,
handcuffed,
blackjacked and took him to Michigan. He
claims that trial and conviction under such
circumstances is in violation of the due
process of the Fourteenth Amendment and
the Federal Kidnapping Act, and that
therefore his conviction is a nullity.
Issue:
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Whether a court is allowed to exercise

jurisdiction over criminal defendant without
regard to the means by which he was brought
to the court.
Held:
The Court has never departed from the rule
announced in Ker vs. Illinois, that the power
of a court to try a person for crime is not
impaired by the fact that he had been
brought within the courts jurisdiction by
reason of a forcible abduction. x x x There
is nothing in the Constitution that requires a
court to permit a guilty person rightfully
convicted to escape justice because he was
brought to trial against his will.
Case: UNITED STATES VS. MACHAIN
Facts:
Respondent Alvarez-Machain, a citizen and
resident of Mexico, was forcibly kidnapped
from his home and flown by private plane to
Texas, where he was arrested for his
participation in the kidnapping and murder of
a Drug Enforcement Administration agent and
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the agents pilot. After concluding that DEA

agents were responsible for the abduction,
the District Court dismissed the indictment on
the ground that it violated the Extradition
Treaty between the United States and Mexico,
and ordered respondents repatriation. The
Court of Appeals affirmed. Based on one of
its prior decisions, the court found that since
the United States had authorized the
abduction and since the Mexican government
had protested the Treaty violation, jurisdiction
was improper.
Issue:
Whether the presence of an extradition treaty
between the US and another country does
not necessarily preclude obtaining a citizen of
that nation through abduction.
Held:
The fact of respondents forcible abduction
does not prohibit his trial in a United States
court for violations of this countrys criminal
laws.
A defendant may not be prosecuted in
violation of the terms of an extradition treaty
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(Rauscher). However, when a treaty has not

been invoked, a court may properly exercise
jurisdiction even though the defendants
presence is procured by means of a forcible
abduction (Ker).
Thus, if the Extradition
Treaty does not prohibit respondents
abduction, the rule of Ker applies and
jurisdiction was proper.
Neither the Treatys language nor the history
of negotiations and practice under it supports
the proposition that it prohibits abductions
outside of its terms. The Treaty says nothing
about either country refraining from forcibly
abducting people from the others territory or
the consequences if an abduction occurs. x x
x.
SUMMARY:
With the exception of alleged crimes
under international law, in the absence of a treaty,
surrender of an alleged criminal cannot be demanded
of right. On the other hand, no general rule forbids
surrender, and this is lawful unless on the facts it
constitutes complicity in conduct harmful to human
rights or in crimes under international law, for example
acts of genocide. (Browlie, Principles of Public International
Law, 4th Ed., 315-315)
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III.
FIVE
PRINCIPLES
THAT
EXTRADITION TREATIES
1.
The Political Offense Doctrine
GENERALLY
BARS
A proviso which limits the obligation of a sovereign state

under an extradition or mutual legal assistance treaty or
statute. Such provisos allow the state whose assistance has
been requested (the requested party) to refuse to hand over
a suspect to or to gather evidence on behalf of another
state (the requesting party), if the formers competent
authority determines that the latter party seeks assistance in
order to prosecute an offense of a political character (crimes
which represent a direct challenge to the government in power
such as treason, sedition, and terrorism).
Notes:
When an act or series of acts is aimed directly at the
government, has none of the elements of ordinary
crimes, and does not violate the private rights of
individuals, such as treason, sedition, and
espionage, that we are dealing with a pure political
offense. Common crimes may attain the coloration
of political offenses when they are committed for
political motives, in furtherance of political ends, or
for a political context.
Acts of wanton destruction in violation of the law of
nations and in transgression of international
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humanitarian law would not be protected by the

exemption of political offenses from extradition.
2.
The Doctrine of Specialty
This doctrine bars the requisitioning or requesting State

from prosecuting the extradite for any offense other than that
for which the accused was surrendered. The premises of the
doctrine are:
(a)
(b)
(c)
(d)
3.
The absolute right of the asylum State or the State of

refuge to grant asylum.
The intent of the asylum State to surrender the accused
for the special purpose defined in the Treaty.
The requisitioning States lack of jurisdiction over the
accused for all other purposes.
The possibility that the right of asylum under municipal
and international law would be subverted if the
requisitioning State were permitted to prosecute the
accused for any charge it deemed once it had in
personam jurisdiction over the accused.
The Double-Criminality Principle
Generally the act for which extradition is sought must

constitute a crime punishable by some minimum penalty in
both the requesting and the requested States. By reason of
this principle, then the Philippines will not extradite a fugitive
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for what the requesting State considers a crime but is

unknown to our penal laws in the Philippines.
4.
The Non-Extradition of Nationals
Jurisdiction over a crime can be invoked to refuse

extradition. Some countries such as Austria, Brazil, the Czech
Republic, France, Germany, Taiwan, Russia and Switzerland,
forbid extradition of their own nationals. These countries often
have laws in place that given them jurisdiction over crimes
committed abroad by or against citizens. By virtue of such
jurisdiction, they prosecute and try citizens accused of crimes
committed abroad as if the crime had occurred within the
countrys borders.
The rationale for this principle is that due process is a
guarantee every citizen of the Philippines enjoys without which
he cannot be deprived of life, liberty or property. Essential to
due process is the authority of the court or tribunal. Foreign
courts and tribunals are not part of the judicial system of the
Philippines which is the fundamental reason why, in the sphere
of private international law, the recognition and enforcement
of foreign judgment is an issue. Allowing then a national to be
deprived of life, liberty or property by decree of foreign court
at least raises questions of whether or not the constitutional
guarantee of due process has been accorded the citizen.
5. Death Penalty
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This principle is attributable to the abhorrence that

international law today has for the death penalty. Many
counties such as Australia, Canada, Macao, New Zealand,
South Africa, and most European nations except Belarus, will
not allow extradition if the death penalty may be imposed on
the suspect unless they are assured that the death sentence
will not be passed or carried out.
There is therefore a
hesitation on the part of the States to surrender especially
their own nationals when these stand to be meted out the
death penalty in those jurisdictions that keep it.
IV.
PHILIPPINE EXTRADITION PROCEDURE
1.
THE REQUEST. The requisitioning State, through foreign
diplomat, makes the request addressed to the Secretary of
Foreign Affairs of the Philippines. The request must be
accompanied by:
a. The original or authentic copy of the criminal
charge and the warrant of arrest issued by the
authority of the Requesting State having
jurisdiction over the matter, or some other
instruments having equivalent legal force;
b. A recital of the acts for which extradition is
requested, with the fullest particulars as to the
names and identity of the accused, his
whereabouts in the Philippines, the acts or
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omissions complained of, and the time and

place of the commission of these acts.
c. The text of the applicable law or a statement of
the contents of the said law, and the
designation of the offense by the law, sufficient
for evaluation of the request;
d. Other documents that may be necessary for the
support of the request.
QUESTION: Is the subject of the request for extradition
entitled to a copy of the extradition request and its
accompanying documents?
This question was answered in the case of Secretary of
Justice vs. Judge Lantion.
Case: Secretary of Justice vs. Judge Lantion
Facts:
On June 18, 1999, the Secretary of Justice
received from the Department of Foreign
Affairs US Note Verbale No. 0522 requesting
for the extradition of respondent Mark
Jimenez to the United States. Respondent
was charged of multiple crimes ranging from
tax evasion to wire tapping to conspiracy to
defraud the US government. Respondent,
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through counsel, wrote a letter to Justice

Secretary requesting copies of the official
extradition request and documents and that
he be given ample time to comment thereto.
However, petitioner denied the request by
reason of consistency of Article 7 of the RPUS Extradition Treated that the Philippine
government must present the interests of the
US government in any proceedings arising
out of a request for extradition.
Issue:
Whether private respondent is entitled to a
copy of the extradition request?
Held:
Considering that in the case at bar, the
extradition proceeding is only at its
evaluation stage, the nature of the right
being claimed by the private respondent is
nebulous and the degree of prejudice he will
allegedly suffer is weak, we accord greater
weight to the interests espoused by the
government through the Secretary of
Justice.
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2.
PROVISIONAL ARREST. Even before the request for
extradition is made, the requisitioning or requesting State may
request for the provisional arrest of the subject. The ground for
the request is "urgency."
QUESTION:
Is it required that the request for
provisional arrest be authenticated in order to be valid?
The answer to this question can be found in the case of
Cuevas vs. Munoz.
Case: Cuevas vs. Munoz
Facts:
The Secretary of Justice received a request
letter for the provisional arrest of the
respondent Juan Antonio Munoz from the
Hong Kong Magistrate Court pursuant to the
RP-Hong
Kong
Extradition
Agreement.
Respondent was charged for seven (7) counts
of accepting an advantage as an agent and
seven (7) counts of conspiracy to defraud,
contrary to the common law of Hong Kong.
Upon application of the NBI, the RTC of Manila
issued an Order granting the issuance of the
corresponding Order of Arrest. Respondent
assailed the Order of Arrest before the Court
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of Appeals by way of a petition for certiorari

under Rule 65. The appellate court declared
the Order of Arrest null and void on grounds,
among others, that the request for
provisional arrest and the accompanying
warrant and summary of facts were
unauthenticated and mere facsimile copies
which are insufficient to form a basis for the
issuance of the questioned Order of Arrest.
Issue:
Whether the request for provisional arrest
and its accompanying documents must be
authenticated in order to be valid.
Held:
The request for provisional arrest of
respondent and its accompanying documents
is valid despite lack of authentication. There
is no requirement for the authentication of a
request for provisional arrest and its
accompanying documents. The enumeration
in the provision of RP-Hong Kong Extradition
Agreement does not specify that these
documents must be authenticated copies.
This may be gleaned from the fact that while
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Art. 11(1) does not require the accompanying

documents of a request for provisional arrest
to be authenticated, Art. 9 of the same
Extradition Agreement make authentication a
requisite for admission in evidence of any
document accompanying a request for
surrender or extradition.
In other words,
authentication is required for the request for
surrender or extradition but not for the
request for provisional arrest.
3.
DETERMINATION BY THE DEPARTMENT OF FOREIGN
AFFAIRS. The primary evaluation of the extradition request
and the supporting documents is done by the DFA. It is
important that the accompanying documents be certified by
the principal diplomatic or consular officer of the Philippines
resident in the requesting State.
Paragraph 3, Article 3 of the Treaty provides that:
Extradition shall not be granted if the
executive authority of the Requested State
determines that the request is politically
motivated, or that the offense is a military
which is not punishable under non-military
penal legislation.
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4.
THE ROLE OF THE SECRETARY OF JUSTICE. If the
extradition request and accompanying documents were found
to be complete and sufficient by the DFA, the same must be
forwarded to the Secretary of Justice who will immediately
designate and attorney to take charge of the case. It is the
lawyer who then files a written petition in the RTC of the
province or city where the subject may be.
5.
THE EXTRADITION HEARING. It is not the duty of the
extradition court to determine the guilt or non-guilt of the
extradite. The trial court determines:
First, whether or not the offense in the petition is
a ground for extradition on the basis of the
principle of double criminality and other
conditions;
Second, whether or not the offense for which
extradition is sought is political;
Third, it determines the existence of a prima facie
case.
The extradite has the opportunity, during the extradition
hearing, to contest the petition, but he cannot do this by
advancing matters of defense for, it must be repeated the
extradition hearing is not a hearing on the merits for criminal
cases against the extradite.
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***End of Report***
To God Be The Glory
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Extradition Proceeding

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Extradition Proceeding

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Submitted by:

Atty. MARIA CRISTINA GIMENEZ

The answer to the second question used to be disputed,

QUESTION: Did an extradition treaty forbid recourse to

Case: KER VS. ILLINOIS

The Court held that forcible abduction is no

Whether a court is allowed to exercise

the agents pilot. After concluding that DEA

(Rauscher). However, when a treaty has not

The Political Offense Doctrine

A proviso which limits the obligation of a sovereign state

humanitarian law would not be protected by the

The Doctrine of Specialty

This doctrine bars the requisitioning or requesting State

The absolute right of the asylum State or the State of

Generally the act for which extradition is sought must

for what the requesting State considers a crime but is

The Non-Extradition of Nationals

Jurisdiction over a crime can be invoked to refuse

This principle is attributable to the abhorrence that

PHILIPPINE EXTRADITION PROCEDURE

omissions complained of, and the time and

through counsel, wrote a letter to Justice

of Appeals by way of a petition for certiorari

Art. 11(1) does not require the accompanying

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