G.R. No.

L-14279 October 31, 1961

THE COMMISSIONER OF CUSTOMS and THE COLLECTOR OF CUSTOMS, petitioners,

vs.EASTERN SEA TRADING, respondent.

FACTS: EST was a shipping company charged in the importation from Japan of onion and
garlic into the Philippines. In 1956, the Commissioner of Customs ordered the seizure and
forfeiture of the import goods because EST was not able to comply with Central Bank Circulars
44 and 45. The said circulars were pursuant to EO 328 w/c sought to regulate the importation
of such non-dollar goods from Japan (as there was a Trade and Financial Agreement b/n the
Philippines and Japan then). EST questioned the validity of the said EO averring that the said
EO was never concurred upon by the Senate. The issue was elevated to the Court of Tax
Appeals and the latter ruled in favor of EST. The Commissioner appealed.

ISSUE: Whether or not the EO is subject to the concurrence of at least 2/3 of the Senate.

HELD: No, executive Agreements are not like treaties which are subject to the concurrence of
at least 2/3 of the members of the Senate. Agreements concluded by the President which fall
short of treaties are commonly referred to as executive agreements and are no less common
in our scheme of government than are the more formal instruments — treaties and conventions.
They sometimes take the form of exchanges of notes and at other times that of more formal
documents denominated ‘agreements’ or ‘protocols’. The point where ordinary correspondence
between this and other governments ends and agreements — whether denominated executive
agreements or exchanges of notes or otherwise — begin, may sometimes be difficult of ready
ascertainment. It would be useless to undertake to discuss here the large variety of executive
agreements as such, concluded from time to time. Hundreds of executive agreements, other
than those entered into under the trade- agreements act, have been negotiated with foreign
governments. . . . It would seem to be sufficient, in order to show that the trade agreements
under the act of 1934 are not anomalous in character, that they are not treaties, and that they
have abundant precedent in our history, to refer to certain classes of agreements heretofore
entered into by the Executive without the approval of the Senate. They cover such subjects as
the inspection of vessels, navigation dues, income tax on shipping profits, the admission of civil
aircraft, customs matters, and commercial relations generally, international claims, postal
matters, the registration of trade-marks and copyrights, etc. Some of them were concluded not
by specific congressional authorization but in conformity with policies declared in acts of
Congress with respect to the general subject matter, such as tariff acts; while still others,
particularly those with respect to the settlement of claims against foreign governments, were
concluded independently of any legislation.

SUZETTE NICOLAS Y SOMBILON v. ALBERTO ROMULO, GR No. 175888,
2009-02-11
Facts:
Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United
States Armed Forces. He was charged with the crime of rape committed against
a Filipina, petitioner herein, sometime on November 1, 2005
Pursuant to the Visiting Forces Agreement (VFA) between the Republic of the
Philippines and the United States, entered into on February 10, 1998, the United
States, at its request, was granted custody of defendant Smith pending the
proceedings.
United States Government faithfully complied with its undertaking to bring
defendant Smith to the trial court every time his presence was... required.
RTC of Makati, following the end of the trial, rendered its Decision, finding
defendant Smith guilt
As a result, the Makati court ordered Smith detained at the Makati jail until further
orders.
Smith was taken out of the Makati jail by a contingent of Philippine law
enforcement agents, purportedly acting under orders of the Department of the
Interior and Local Government, and brought to a facility for detention under the
control... of the United States government, provided for under new agreements
between the Philippines and the United States, referred to as the Romulo-
Kenney Agreement... in accordance with the Visiting Forces Agreement signed
between our two nations, Lance Corporal Daniel J. Smith, United States Marine
Corps, be returned... to U.S. military custody at the U.S. Embassy in Manila.
He will be guarded round the clock by U.S. military personnel. The Philippine
police and jail... authorities, under the direct supervision of the Philippine
Department of Interior and Local Government (DILG) will have access to the
place of detention to ensure the United States is in compliance with the terms of
the VFA.
Clark and Subic and the other places in the Philippines covered by the RP-US
Military Bases Agreement of 1947 were not Philippine territory, as they were
excluded from the cession and retained by the US.
Accordingly, the Philippines had no jurisdiction over these bases except to the
extent allowed by the United States.
RP-US Military Bases Agreement was never advised for ratification by the United
States Senate, a disparity in treatment, because the Philippines... regarded it as
a treaty and had it concurred in by our Senate.
Subsequently, the United States agreed to turn over these bases to the
Philippines; and with the expiration of the RP-US Military Bases Agreement in
1991, the territory covered by these bases were finally ceded to the Philippines.
whether or not the presence of US Armed Forces in Philippine territory pursuant
to the VFA is allowed "under a treaty duly concurred in by the Senate xxx and
recognized as a treaty by the other... contracting State."
Issues:
whether or not the presence of US Armed Forces in Philippine territory pursuant
to the VFA is allowed "under a treaty duly concurred in by the Senate xxx and
recognized as a treaty by the other... contracting State."
Petitioners contend that these undertakings violate another provision of the
Constitution, namely, that providing for the exclusive power of this Court to adopt
rules of procedure for all courts in the Philippines (Art. VIII, Sec. 5[5]). They
argue that to... allow the transfer of custody of an accused to a foreign power is
to provide for a different rule of procedure for that accused, which also violates
the equal protection clause of the Constitution (Art. III, Sec. 1.).
Ruling:
This Court finds that it is, for two reasons.
First, as held in Bayan v. Zamora,[5] the VFA was duly concurred in by the
Philippine Senate and has been recognized as a treaty by the United States as
attested and certified by the duly authorized representative of the United States...
government.
The fact that the VFA was not submitted for advice and consent of the United
States Senate does not detract from its status as a binding international
agreement or treaty recognized by the said State. For this is a matter of internal
United States law.
The second reason has to do with the relation between the VFA and the RP-US
Mutual Defense Treaty of August 30, 1951. This earlier agreement was signed
and duly ratified with the concurrence of both the Philippine Senate and the
United States Senate.
Clearly, therefore, joint RP-US military exercises for the purpose of developing
the capability to resist an armed attack fall squarely under the provisions of the
RP-US Mutual Defense Treaty. The VFA, which is the instrument agreed upon to
provide for the joint RP-US military... exercises, is simply an implementing
agreement to the main RP-US Military Defense Treaty.
The Preamble of the VFA states
Reaffirming their obligations under the Mutual Defense Treaty of August 30,
1951;
Accordingly, as an implementing agreement of the RP-US Mutual Defense
Treaty, it was not necessary to submit the VFA to the US Senate for advice and
consent, but merely to the US Congress under the Case-Zablocki Act within 60
days of its ratification. It is for this reason that... the US has certified that it
recognizes the VFA as a binding international agreement, i.e., a treaty, and this
substantially complies with the requirements of Art. XVIII, Sec. 25 of our
Constitution.
The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue
of the fact that the presence of the US Armed Forces through the VFA is a
presence "allowed under" the RP-US Mutual Defense Treaty.
The VFA provides that in cases of offenses committed by the members of the US
Armed Forces in the Philippines, the following rules apply:
The custody of any United States personnel over whom the Philippines is to
exercise jurisdiction shall immediately reside with United States military
authorities, if they so request, from the commission of the offense until
completion of all judicial proceedings.
this Court finds no violation of the Constitution.
Nothing in the Constitution prohibits such agreements recognizing immunity from
jurisdiction or some aspects of jurisdiction (such as custody), in relation to long-
recognized subjects of such immunity like Heads of State, diplomats and
members of the armed forces contingents of... a foreign State allowed to enter
another State's territory. On the contrary, the Constitution states that the
Philippines adopts the generally accepted principles of international law as part
of the law of the land.
Applying, however, the provisions of VFA, the Court finds that there is a different
treatment when it comes to detention as against custody. The moment the
accused has to be detained, e.g., after conviction, the rule that governs is the
following provision of the
VFA:
The confinement or detention by Philippine authorities of United States personnel
shall be carried out in facilities agreed on by appropriate Philippines and United
States authorities. United States personnel serving sentences in the Philippines
shall have the right to... visits and material assistance.
It is clear that the parties to the VFA recognized the difference between custody
during the trial and detention after conviction, because they provided for a
specific arrangement to cover detention.
not only that the detention shall... be carried out in facilities agreed on by
authorities of both parties, but also that the detention shall be "by Philippine
authorities."
Therefore, the Romulo-Kenney Agreements of December 19 and 22, 2006,
which are agreements on the detention of the accused in the United
States Embassy, are not in accord with the VFA itself because such detention is
not "by Philippine authorities."
Next, the Court addresses the recent decision of the United States Supreme
Court in Medellin v. Texas ( 552 US ___ No. 06-984, March 25, 2008), which
held that treaties entered into by the United States are not automatically part of
their domestic law unless these... treaties are self-executing or there is an
implementing legislation to make them enforceable.
First, the VFA is a self-executing Agreement, as that term is defined in Medellin
itself, because the parties intend its provisions to be enforceable, precisely
because the Agreement is intended to carry out obligations and undertakings
under the RP-US
Mutual Defense Treaty.
Secondly, the VFA is covered by implementing legislation, namely, the Case-
Zablocki Act, USC Sec. 112(b), inasmuch as it is the very purpose and intent of
the US Congress that executive agreements registered under this Act within 60
days from their ratification be... immediately implemented.
VFA differs from the Vienna Convention on Consular Relations and the Avena
decision of the International Court of Justice (ICJ), subject matter of the Medellin
decision. The Convention and the ICJ decision are not self-executing and are
not... registrable under the Case-Zablocki Act, and thus lack legislative
implementing authority.
inally, the RP-US Mutual Defense Treaty was advised and consented to by the
US Senate
Principles:
The rule in international law is that a foreign armed forces allowed to enter one's
territory is immune from local jurisdiction, except to the extent agreed upon. The
Status of Forces Agreements involving foreign military units around the world
vary in terms and conditions,... according to the situation of the parties involved,
and reflect their bargaining power. But the principle remains, i.e., the receiving
State can exercise jurisdiction over the forces of the sending State only to the
extent agreed upon by the parties.
As a result, the situation involved is not one in which the power of this Court to
adopt rules of procedure is curtailed or violated, but rather one in which, as is
normally encountered around the world, the laws (including rules of procedure) of
one State do not extend or apply
It was not the intention of the framers of the 1987 Constitution, in adopting Article
XVIII, Sec. 25, to require the other contracting State to convert their system to
achieve alignment and parity with ours. It was simply required that the treaty be
recognized as a treaty by the... other contracting State.
as held by the US Supreme Court in Weinberger v. Rossi,[13] an executive
agreement is a "treaty" within the meaning of that word in international law and
constitutes enforceable domestic law vis-à-vis the United States. Thus, the
US Supreme Court in Weinberger enforced the provisions of the executive
agreement granting preferential employment to Filipinos in the US Bases here.
Accordingly, there are three types of treaties in the American system:
Art. II, Sec. 2 treaties - These are advised and consented to by the US Senate in
accordance with Art. II, Sec. 2 of the US Constitution.
Executive-Congressional Agreements: These are joint agreements of the
President and Congress and need not be submitted to the Senate.
Sole Executive Agreements. - These are agreements entered into by the
President. They are to be submitted to Congress within sixty (60) days of
ratification under the provisions of the Case-Zablocki Act, after which they are
recognized by the Congress and may be... implemented.

 except to the extent agreed upon - to subjects of another State due to the
recognition of extraterritorial immunity given to such bodies as visiting
foreign armed forces.
 MALACAÑANG
MANILA
BY THE PRESIDENT OF THE PHILIPPINES
EXECUTIVE ORDER NO. 459
PROVIDING FOR THE GUIDELINES IN THE NEGOTIATION
OF INTERNATIONAL AGREEMENTS AND ITS RATIFICATION
WHEREAS, the negotiations of international agreements are made in pursuance of the
foreign policy of the country;
WHEREAS, Executive Order No. 292, otherwise known as the Administrative Code
of 1987, provides that the Department of Foreign Affairs shall be the lead agency that
shall advise and assist the President in planning, organizing, directing, coordinating and
evaluating the total national effort in the field of foreign relations;
WHEREAS, Executive Order No. 292 further provides that the Department of Foreign
Affairs shall negotiate treaties and other agreements pursuant to the instructions of the
President, and in coordination with other government agencies;
WHEREAS, there is a need to establish guidelines to govern the negotiation and
ratification of international agreements by the different agencies of the government;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Philippines, by virtue
of the powers vested in me by the Constitution, do hereby order:
SECTION 1. Declaration of Policy. – It is hereby declared the policy of the State that
the negotiations of all treaties and executive agreements, or any amendment thereto,
shall be coordinated with, and made only with the participation of, the Department of
Foreign Affairs in accordance with Executive Order No. 292. It is also declared the
policy of the State that the composition of any Philippine negotiation panel and the
designation of the chairman thereof shall be made in coordination with the Department
of Foreign Affairs.
SEC. 2. Definition of Terms.
a. International agreement shall refer to a contract or understanding, regardless of
nomenclature, entered into between the Philippines and another government in written
form and governed by international law, whether embodied in a single instrument or in
two or more related instruments.
b. Treaties – international agreements entered into by the Philippines which require
legislative concurrence after executive ratification. This term may include compacts
like conventions, declarations, covenants and acts.
c. Executive Agreements – similar to treaties except that they do not require legislative
concurrence.
d. Full Powers – authority granted by a Head of State or Government to a delegation
head enabling the latter to bind his country to the commitments made in the
negotiations to be pursued.
e. National Interest – advantage or enhanced prestige or benefit to the country as
defined by its political and/or administrative leadership.
f. Provisional Effect – recognition by one or both sides of the negotiation process that
an agreement be considered in force pending compliance with domestic requirements
for the effectivity of the agreement.
SEC. 3. Authority to Negotiate. – Prior to any international meeting or negotiation of
a treaty or executive agreement, authorization must be secured by the lead agency from
the President through the Secretary of Foreign Affairs. The request for authorization
shall be in writing, proposing the composition of the Philippine delegation and
recommending the range of positions to be taken by that delegation. In case of
negotiations of agreements, changes of national policy or those involving international
arrangements of a permanent character entered into in the name of the Government of
the Republic of the Philippines, the authorization shall be in the form of Full Powers
and formal instructions. In cases of other agreements, a written authorization from the
President shall be sufficient.
SEC. 4. Full Powers. – The issuance of Full Powers shall be made by the President of
the Philippines who may delegate this function to the Secretary of Foreign Affairs.
The following persons, however, shall not require Full Powers prior to negotiating or
signing a treaty or an executive agreement, or any amendment thereto, by virtue of the
nature of their functions:
a. Secretary of Foreign Affairs;
b. Heads of Philippine diplomatic missions, for the purpose of adopting the text of a
treaty or an agreement between the Philippines and the State to which they are
accredited;
c. Representatives accredited by the Philippines to an international conference or to an
international organization or one of its organs, for the purpose of adopting the text of a
treaty in that conference, organization or organ.
SEC. 5. Negotiations. –
a. In cases involving negotiations of agreements, the composition of the Philippine
panel or delegation shall be determined by the President upon the recommendation of
the Secretary of Foreign Affairs and the lead agency if it is not the Department of
Foreign Affairs.
b. The lead agency in the negotiation of a treaty or an executive agreement, or any
amendment thereto, shall convene a meeting of the panel members prior to the
commencement of any negotiations for the purpose of establishing the parameters of
the negotiating position of the panel. No deviation from the agreed parameters shall be
made without prior consultations with the members of the negotiating panel.
SEC. 6. Entry into Force and Provisional Application of Treaties and Executive
Agreements. –
a. A treaty or an executive agreement enters into force upon compliance with the
domestic requirements stated in this Order.
b. No treaty or executive agreement shall be given provisional effect unless it is shown
that a pressing national interest will be upheld thereby. The Department of Foreign
Affairs, in consultation with the concerned agencies, shall determine whether a treaty
or an executive agreement, or any amendment thereto, shall be given provisional effect.
SEC. 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive
Agreement. – The domestic requirements for the entry into force of a treaty or an
executive agreement, or any amendment thereto, shall be as follows:
A. Executive Agreements.
i. All executive agreements shall be transmitted to the Department of Foreign Affairs
after their signing for the preparation of the ratification papers. The transmittal shall
include the highlights of the agreements and the benefits which will accrue to the
Philippines arising from them.
ii. The Department of Foreign Affairs, pursuant to the endorsement by the concerned
agency, shall transmit the agreements to the President of the Philippines for his
ratification. The original signed instrument of ratification shall then be returned to the
Department of Foreign Affairs for appropriate action.
B. Treaties.
i. All treaties, regardless of their designation, shall comply with the requirements
provided in sub-paragraph 1 and 2, item A (Executive Agreements) of this Section. In
addition, the Department of Foreign Affairs shall submit the treaties to the Senate of
the Philippines for concurrence in the ratification by the President. A certified true copy
of the treaties, in such numbers as may be required by the Senate, together with a
certified true copy of the ratification instrument, shall accompany the submission of the
treaties to the Senate.
ii. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs
shall comply with the provision of the treaties in effecting their entry into force.
SEC. 8. Notice to Concerned Agencies. – The Department of Foreign Affairs shall
inform the concerned agencies of the entry into force of the agreement.
SEC. 9. Determination of the Nature of the Agreement. – The Department of Foreign
Affairs shall determine whether an agreement is an executive agreement or a treaty.

SEC. 10. Separability Clause. – If, for any reason, any part or provision of this Order
shall be held unconstitutional or invalid, other parts or provisions hereof which are not
affected thereby shall continue to be in full force and effect.

SEC. 11. Repealing Clause. – All executive orders, proclamations, memorandum

orders or memorandum circulars inconsistent herewith are hereby repealed or modified
accordingly.

SEC. 12. Effectivity. – This Executive Order shall take effect immediately upon its
approval.

DONE in the City of Manila, this 25th day of November in the year of Our Lord,
Nineteen Hundred and Ninety-Seven.

(Sgd.) FIDEL V. RAMOS

President of the Philippines

Doctrine of Specialty is a principle of International law that is included in most extradition
treaties, whereby a person who is extradited to a country to stand trial for certain criminal
offenses may be tried only for those offenses and not for any other pre-extradition offenses.
Once the asylum state extradites an individual to the requesting state under the terms of an
extradition treaty, that person can be prosecuted only for crimes specified in the extradition
request. This doctrine allows a nation to require the requesting nation to limit prosecution to
declared offenses.
Double criminality is a crime punished in both the country where a suspect is being held and a
country asking for the suspect to be handed over or transferred to stand trial. It is also known
as dual criminality. Double criminality is a requirement in extradition procedures as extradition
is allowed only for offenses alleged as crimes in both jurisdictions. “For purposes of determining
double criminality in an international extradition case, the court must look to proscription by
similar criminal provisions of federal law or, if none, the law of the place where the petitioner is
found or, if none, the law of the preponderance of the states. A broad interpretation of the
requirement of dual criminality is followed: The law does not require that the name by which
the crime is described in the two countries shall be the same, nor that the scope of the liability
shall be coextensive, or, in other respects, the same in the two countries. It is enough if the
particular act charged is criminal in both jurisdictions.
PRESIDENTIAL DECREE NO 1069
PRESCRIBING THE PROCEDURE FOR THE EXTRADITION OF PERSONS WHO HAVE
COMMITTED CRIMES IN A FOREIGN COUNTRY
WHEREAS, under the Constitution the Philippines adopts the generally accepted principles of
international law as part of the law of the land, and adheres to the policy of peace, equality, justice,
freedom, cooperation and amity with all nations;
WHEREAS, the suppression of crime is the concern not only of the estate where it is committed but
also of any other state to which the criminal may have escaped, because it saps the foundation of social
life and is an outrage upon humanity at large, and it is in the interest of civilized communities that crimes
should not go unpunished;
WHEREAS, is recognition of this principle the Philippines recently concluded as extradition treaty with
the Republic of Indonesia, and intends to conclude similar treaties with other interested countries;
WHEREAS, there is need for rules to guide the executive department and the courts in the proper
implementation of the extradition treaties to which the Philippines is a signatory.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers
vested in me by the Constitution, do hereby order and decree the following:
Section 1. Short-Title. This Decree shall be known as the "Philippine Extradition Law".
Section 2. Definition of Terms. When used in this law, the following terms shall, unless the context
otherwise indicates, have meanings respectively assigned to them:
(a) "Extradition" 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.
(b) "Extradition Treaty or Convention" An extradition agreement between the Republic of the
Philippines and one or more foreign states or governments.
(c) "Accused" The person who is, or is suspected of being, within the territorial jurisdiction of
the Philippines, and whose extradition has been requested by a foreign state or government.
(d) "Requesting State or Government" The foreign state or government from which the request
for extradition has emanated.
 (e) "Foreign Diplomat" Any authorized diplomatic representative of the requesting state or
government and recognized as such by the Secretary of Foreign Affairs.
(f) "Secretary of Foreign Affairs" The head of the Department of Foreign Affairs of the Republic
of the Philippines, or in his absence, any official acting on his behalf or temporarily occupying
and discharging the duties of that position.
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 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.
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, 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;
(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.
Section 5. Duty of Secretary of Foreign Affairs; Referral of Request: Filing of Petition. (1) Unless it
appears to the Secretary of Foreign Affairs that the request fails to meet the requirements of this law
and the relevant treaty or convention, he shall forward the request together with the related documents
to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to
take charge of these case.
(2) The attorney so designated shall file a written petition with the proper Court of First
Instance of the province or city having jurisdiction of the place, with a prayer that the court take
the request under consideration and shall attach to the petition all related documents. The
filing of the petition and the service of the summons to the accused shall be free from the
payment of docket and sheriff's fees.
(3) The Court of First Instance with which the petition shall have been filed shall have and
continue to have the exclusive power to hear and decide the case, regardless of the
subsequent whereabouts of the accused, or the change or changes of his place of residence.
Section 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices. (1) Immediately upon
receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon the
accused to appear and to answer the petition on the day and hour fixed in the order. We may issue a
warrant for the immediate arrest of the accused which may be served any where within the Philippines if
it appears to the presiding judge that the immediate arrest and temporary detention of the accused will
best serve the ends of justice. Upon receipt of the answer, or should the accused after having received
the summons fail to answer within the time fixed, the presiding judge shall hear the ace or set another
date for the hearing thereof.
(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly
served each upon the accused and the attorney having charge of the case.
Section 7. Appointment of Counsel de Oficio. If on the date set for the hearing the accused does not
have a legal counsel, the presiding judge shall appoint any law practitioner residing within his territorial
jurisdiction as counsel de oficio for the accused to assist him in the hearing.
Section 8. Hearing in Public; Exception; Legal Representation.
(1) The hearing shall be public unless the accused requests, with leave of court, that it be
conducted in chamber.
 (2) The attorney having charge of the case may upon request represent the requesting state or
government throughout the proceeding. The requesting state or government may, however,
retain private counsel to represent it for particular extradition case.
(3) Should the accused fail to appear on the date set for hearing, or if he is not under
detention, the court shall forthwith issue a warrant for this arrest which may be served upon the
accused anywhere in the Philippines.
Section 9. Nature and Conduct of Proceedings. (1) In the hearing, the provisions of the Rules of Court
insofar as practicable and not inconsistent with the summary nature of the proceedings, shall apply to
extradition cases, and the hearing shall be conducted in such a manner as to arrive as a fair and
speedy disposition of the case.
(2) Sworn statements offered in evidence at the hearing of any extradition case shall be
received and admitted as evidence if properly and legally authenticated by the principal
diplomatic or consular officer of the Republic of the Philippines residing in the requesting state.
Section 10. Decision. Upon conclusion of the hearing, the court shall render a decision granting the
extradition, and giving his reasons therefor upon showing of the existence of a prima facie case.
Otherwise, it shall dismiss the petition.
Section 11. Service of Decision. The decision of the court shall be promptly served on the accused if he
was not present at the reading thereof, and the clerk of the court shall immediately forward two copies
thereof to the Secretary of Foreign Affairs through the Department of Justice.
Section 12. Appeal by Accused; Stay of Execution
(1) The accused may, within 10 days from receipt of the decision of the Court of First Instance
granting extradition cases shall be final and immediately executory.
(2) The appeal shall stay the execution of the decision of the Court of First Instance.
Section 13. Application of Rules of Court. The provisions of the Rules of Court governing appeal in
criminal cases in the Court of Appeals shall apply in appeal in Extradition cases, except that the parties
may file typewritten or mimeograph copies of their brief within 15 days from receipt of notice to file such
briefs.
Section 14. Service of Decision of Court of Appeals. The accused and the Secretary of Foreign Affairs,
through the Department of Justice, shall each be promptly served with copies of the decision of the
Court of Appeals.
Section 15. Concurrent Request for Extradition. In case extradition of the same person has been
requested by two or more states, the Secretary of Foreign Affairs, after consultation with the Secretary
of Justice, shall decide which of the several requests shall be first considered, and copies of the
former's decision thereon shall promptly be forwarded to the attorney having charge of the case, if there
be one, through the Department of Justice.
Section 16. Surrender of Accused. After the decision of the court in an extradition case has become
final and executory, the accused shall be placed at the disposal 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 17. Seizure and Turn Over of Accused Properties. If extradition is granted, 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 therefor.
Section 18. Costs and Expenses; By Whom Paid. Except when the relevant extradition treaty provides
otherwise, all costs or expenses incurred in any extradition proceeding and in apprehending, securing
and transmitting an accused shall be paid by the requesting state or government. The Secretary of
Justice shall certify to the Secretary of Foreign Affairs the amounts to be paid by the requesting state or
government on account of expenses and costs, and the Secretary of Foreign Affairs shall cause the
amounts to be collected and transmitted to the Secretary of Justice for deposit in the National Treasury
of the Philippines.
Section 19. Service of Court Processes. All processes emanating from the court in connection with
extradition cases shall be served or executed by the Sheriff of the province or city concerned or of any
member of any law enforcement agency;
Section 20. Provisional Arrest. (a) In case of urgency, the requesting state may, pursuant to the
relevant treaty or convention and while the same remains in force; request for provisional arrest of the
accused pending receipt of the request for extradition made in accordance with Section 4 of this
Decree.
(b) A request for provisional arrest shall be sent to the Director of the National Bureau of
Investigation, Manila, either through the diplomatic channels or direct by post or telegraph.
(c) The Director of the National Bureau of Investigation or any official acting on his behalf shall
upon receipt of the request immediately secure a warrant for the provisional arrest of the
accused from the presiding judge of the Court of First Instance of the province or city having
jurisdiction of the place, who shall issue the warrant for the provisional arrest of the accused.
The Director of the National Bureau of Investigation through the Secretary of Foreign Affairs
shall inform the requesting of the result of its request.
(d) If within a period of 20 days after the provisional arrest the Secretary of Foreign Affairs has
not received the request for extradition and the documents mentioned in Section 4 of this
Decree, the accused shall be released from custody.
 (e) Release from provisional arrest shall not prejudice re-arrest and extradition of the accused
if a request for extradition is received subsequently in accordance with the relevant treaty of
convention.
Section 21. Effectivity. this Decree shall take effect immediately and its provisions shall be in force
during the existence of any extradition treaty or convention with, and only in respect of, any foreign state
or government.
The five postulates are as follows:
1. Extradition Is a Major Instrument for the Suppression of Crime.
2. The Requesting State Will Accord Due Process to the Accused
3. The Proceedings Are Sui Generis
4. Compliance Shall Be in Good Faith.
5. Persons to be extradited are presumed to be flight risks
Mutual Legal Assistance Treaties (MLATs) provide for the sharing of information and
evidence related to criminal investigations and prosecutions, including drug trafficking
and narcotics-related money laundering. Both parties are obligated to assist in the
investigation, prosecution and suppression of offenses in all forms of proceedings
(criminal, civil or administrative). Absent a treaty or executive agreement, the customary
method of formally requesting assistance has been through letters rogatory.
US VS Purganan
FACTS:
Petition is a sequel to the case “Sec. of Justice v. Hon. Lantion”. The Secretary was
ordered to furnish Mr. Jimenez copies of the extradition request and its supporting
papers and to grant the latter a reasonable period within which to file a comment and
supporting evidence. But, on motion for reconsideration by the Sec. of Justice, it
reversed its decision but held that the Mr. Jimenez was bereft of the right to notice and
hearing during the evaluation stage of the extradition process. On May 18, 2001, the
Government of the USA, represented by the Philippine Department of Justice, filed with
the RTC, the Petition for Extradition praying for the issuance of an order for his
“immediate arrest” pursuant to Sec. 6 of PD 1069 in order to prevent the flight of
Jimenez. Before the RTC could act on the petition, Mr. Jimenez filed before it an “Urgent
Manifestation/Ex-Parte Motion” praying for his application for an arrest warrant be set for
hearing. After the hearing, as required by the court, Mr. Jimenez submitted his
Memorandum. Therein seeking an alternative prayer that in case a warrant should
issue, he be allowed to post bail in the amount of P100,000. The court ordered the
issuance of a warrant for his arrest and fixing bail for his temporary liberty at P1M in
cash. After he had surrendered his passport and posted the required cash bond,
Jimenez was granted provisional liberty.
Government of the USA filed a petition for Certiorari under Rule 65 of the Rules of
Court to set aside the order for the issuance of a warrant for his arrest and fixing bail for
his temporary liberty at P1M in cash which the court deems best to take cognizance as
there is still no local jurisprudence to guide lower court.
ISSUES:
i. Whether or NOT Hon. Purganan acted without or in excess of jurisdiction or with
grave abuse of discretion amounting to lack or excess of jurisdiction in adopting a
procedure of first hearing a potential extraditee before issuing an arrest warrant under
Section 6 of PD No. 1069
ii. Whether or NOT Hon. Purganan acted without or in excess of jurisdiction or with
grave abuse of discretion amounting to lack or excess of jurisdiction in granting the
prayer for bail
iii. Whether or NOT there is a violation of due process
HELD: Petition is GRANTED. Bail bond posted is CANCELLED. Regional Trial Court of
Manila is directed to conduct the extradition proceedings before it.
i. YES.
By using the phrase “if it appears,” the law further conveys that accuracy is not as
important as speed at such early stage. From the knowledge and the material then
available to it, the court is expected merely to get a good first impression or a prima facie
finding sufficient to make a speedy initial determination as regards the arrest and
detention of the accused. The prima facie existence of probable cause for hearing the
petition and, a priori, for issuing an arrest warrant was already evident from the Petition
itself and its supporting documents. Hence, after having already determined therefrom
that a prima facie finding did exist, respondent judge gravely abused his discretion when
he set the matter for hearing upon motion of Jimenez. The silence of the Law and the
Treaty leans to the more reasonable interpretation that there is no intention to punctuate
with a hearing every little step in the entire proceedings. It also bears emphasizing at
this point that extradition proceedings are summary in nature. Sending to persons
sought to be extradited a notice of the request for their arrest and setting it for hearing at
some future date would give them ample opportunity to prepare and execute an escape
which neither the Treaty nor the Law could have intended.
Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not
require a notice or a hearing before the issuance of a warrant of arrest. To determine
probable cause for the issuance of arrest warrants, the Constitution itself requires only
the examination under oath or affirmation of complainants and the witnesses they may
produce.
The Proper Procedure to “Best Serve The Ends Of Justice” In Extradition Cases
Upon receipt of a petition for extradition and its supporting documents, the judge must
study them and make, as soon as possible, a prima facie finding whether
a) they are sufficient in form and substance
b) they show compliance with the Extradition Treaty and Law
c) the person sought is extraditable
At his discretion, the judge may require the submission of further documentation or may
personally examine the affiants and witnesses of the petitioner. If, in spite of this study
and examination, no prima facie finding is possible, the petition may be dismissed at the
discretion of the judge. On the other hand, if the presence of a prima facie case is
determined, then the magistrate must immediately issue a warrant for the arrest of the
extraditee, who is at the same time summoned to answer the petition and to appear at
scheduled summary hearings. Prior to the issuance of the warrant, the judge must not
inform or notify the potential extraditee of the pendency of the petition, lest the latter be
given the opportunity to escape and frustrate the proceedings.
ii. Yes.
The constitutional provision on bail on Article III, Section 13 of the Constitution, as well
as Section 4 of Rule 114 of the Rules of Court, applies only when a person has been
arrested and detained for violation of Philippine criminal laws. It does not apply to
extradition proceedings, because extradition courts do not render judgments of
conviction or acquittal. Moreover, the constitutional right to bail “flows from the
presumption of innocence in favor of every accused who should not be subjected to the
loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved
beyond reasonable doubt. In extradition, the presumption of innocence is not at
issue. The provision in the Constitution stating that the “right to bail shall not be impaired
even when the privilege of the writ of habeas corpus is suspended” finds application
“only to persons judicially charged for rebellion or offenses inherent in or directly
connected with invasion.”
That the offenses for which Jimenez is sought to be extradited are bailable in the
United States is not an argument to grant him one in the present case. Extradition
proceedings are separate and distinct from the trial for the offenses for which he is
charged. He should apply for bail before the courts trying the criminal cases against him,
not before the extradition court.
Exceptions to the “No Bail” Rule
Bail is not a matter of right in extradition cases. It is subject to judicial discretion in the
context of the peculiar facts of each case. Bail may be applied for and granted as an
exception, only upon a clear and convincing showing
1) that, once granted bail, the applicant will not be a flight risk or a danger to the
community; and
2) that there exist special, humanitarian and compelling circumstances including, as a
matter of reciprocity, those cited by the highest court in the requesting state when it
grants provisional liberty in extradition cases therein
Since this exception has no express or specific statutory basis, and since it is derived
essentially from general principles of justice and fairness, the applicant bears the burden
of proving the above two-tiered requirement with clarity, precision and emphatic
forcefulness.
It must be noted that even before private respondent ran for and won a congressional
seat in Manila, it was already of public knowledge that the United States was requesting
his extradition. Therefore, his constituents were or should have been prepared for the
consequences of the extradition case. Thus, the court ruled against his claim that his
election to public office is by itself a compelling reason to grant him bail.
Giving premium to delay by considering it as a special circumstance for the grant of
bail would be tantamount to giving him the power to grant bail to himself. It would also
encourage him to stretch out and unreasonably delay the extradition proceedings even
more. Extradition proceedings should be conducted with all deliberate speed to
determine compliance with the Extradition Treaty and Law; and, while safeguarding basic
individual rights, to avoid the legalistic contortions, delays and technicalities that may
negate that purpose.
That he has not yet fled from the Philippines cannot be taken to mean that he will
stand his ground and still be within reach of our government if and when it matters; that
is, upon the resolution of the Petition for Extradition.
iii. NO.
Potential extraditees are entitled to the rights to due process and to fundamental
fairness. The doctrine of right to due process and fundamental fairness does not always
call for a prior opportunity to be heard. A subsequent opportunity to be heard is
enough. He will be given full opportunity to be heard subsequently, when the extradition
court hears the Petition for Extradition. Indeed, available during the hearings on the
petition and the answer is the full chance to be heard and to enjoy fundamental fairness
that is compatible with the summary nature of extradition.
It is also worth noting that before the US government requested the extradition of
respondent, proceedings had already been conducted in that country. He already had
that opportunity in the requesting state; yet, instead of taking it, he ran away.
Other Doctrines:
Five Postulates of Extradition
1) Extradition Is a Major Instrument for the Suppression of Crime
In this era of globalization, easier and faster international travel, and an expanding ring
of
international crimes and criminals, we cannot afford to be an isolationist state. We need
to cooperate with other states in order to improve our chances of suppressing crime in
our own country.
2) The Requesting State Will Accord Due Process to the Accused
By entering into an extradition treaty, the Philippines is deemed to have reposed its trust
in the reliability or soundness of the legal and judicial system of its treaty partner, as well
as in the ability and the willingness of the latter to grant basic rights to the accused in the
pending criminal case therein.
3) The Proceedings Are Sui Generis
An extradition proceeding is sui generis:
a) It is not a criminal proceeding which will call into operation all the rights of an
accused as guaranteed by the Bill of Rights. It does not involve the determination of the
guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of
the state where he will be extradited.
b) An extradition proceeding is summary in nature while criminal proceedings involve a
full-blown trial.
c) In terms of the quantum of evidence to be satisfied, a criminal case requires proof
“beyond reasonable doubt” for conviction while a fugitive may be ordered extradited
“upon showing of the existence of a prima facie case”
d) Unlike in a criminal case where judgment becomes executory upon being rendered
final, in an extradition proceeding, our courts may adjudge an individual extraditable but
the President has the final discretion to extradite him.
Extradition is merely a measure of international judicial assistance through which a
person charged with or convicted of a crime is restored to a jurisdiction with the best
claim to try that person. The ultimate purpose of extradition proceedings in court is only
to determine whether the extradition request complies with the Extradition Treaty, and
whether the person sought is extraditable.
4) Compliance Shall Be in Good Faith.
We are bound by pacta sunt servanda to comply in good faith with our obligations
under the Treaty. Accordingly, the Philippines must be ready and in a position to deliver
the
accused, should it be found proper
5) There Is an Underlying Risk of Flight
Indeed, extradition hearings would not even begin, if only the accused were
willing to submit to trial in the requesting country. Prior acts of herein respondent:
a) leaving the requesting state right before the conclusion of his indictment
proceedings there; and
b) remaining in the requested state despite learning that the requesting state is seeking
his return and that the crimes he is charged with are bailable
Extradition is Essentially Executive
Extradition is essentially an executive, not a judicial, responsibility arising out of the
presidential power to conduct foreign relations and to implement treaties. Thus, the
Executive Department of government has broad discretion in its duty and power of
implementation.
GOV’T OF HONGKONG SPECIAL ADMINISTRATIVE REGION
VS HON. OLALIA
Bail, Section 1, Rule 114, Revised Rules of Criminal Procedure - is the surety for the release
of a person in custody of the law, furnished by him or a bondsman, to guarantee his
appearance before any court as required under the conditions hereinafter specified. Bail may
be given in the form of corporate surety, property bond, cash deposit, or recognizance.
Extradition:
FACTS:
Respondent Muñoz was charged of 3 counts of offences of “accepting an advantage as agent”,
and 7 counts of conspiracy to defraud, punishable by the common law of Hongkong. The
Hongkong Depoartment of Justice requested DOJ for the provisional arrest of respondent
Muñoz; the DOJ forward the request to the NBI then to RTC. On the same day, NBI agents
arrested him.
Respondent filed with the CA a petition for certiorari, prohibition and mandamus with
application for preliminary mandatory injunction and writ of habeas corpus questioning the
validity of the order of arrest.
The CA declared the arrest void. Hence this petition by the Hongkong Department of Justice
thru DOJ.
DOJ filed a petition for certiorari in this Court and sustained the validity of the arrest.
Hongkong Administrative Region then filed in the RTC petition for extradition and arrest of
respondent. Meanwhile, respondent filed a petition for bail, which was opposed by the
petitioner, initially the RTC denied the petition holding that there is no Philippine Law
granting bail in extradition cases and that private responded is a “flight risk”.

Motion for reconsideration was filed by the respondent, which was granted. Hence this
petition.
ISSUE:
Whether or not right to bail can be avail in extradition cases.
HELD:
In Purganan case, the right to bail was not included in the extradition cases, since it is
available only in criminal proceedings.
However the Supreme Court, recognised the following trends in International Law.
1. The growing importance of the individual person in publican international law who, in the
20th century attained global recognition.
2. The higher value now being given in human rights in international sphere
3. The corresponding duty of countries to observe these human rights in fulfilling their treaty
obligations
4. The of 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.
The modern trend in the public international law is the primacy placed on the sanctity
of human rights.
Enshrined the Constitution “The state values the dignity of every human person and
guarantees full respect for human rights.” The Philippines therefore, has the
responsibility of protecting and promoting the right of every person to liberty and due
process, ensuring that those detained or arrested can participate in the proceeding
before the a court, to enable it to decide without delay on the legality of the detention
and order their release if justified.
Examination of this Court in the doctrines provided for in the US Vs Purganan provide the
following.
1. The exercise of the State’s police power to deprive a person of his liberty is not limited to
criminal proceedings.
2. To limit the right to bail in the criminal proceeding would be to close our eyes to
jurisprudential history. Philippines has not limited the exercise of the right to bail to criminal
proceedings only. This Court has admitted to bail persons who are not involved in criminal
proceedings. In fact, bail has been involved in this jurisdiction to persons in detention during
the tendency of administrative proceedings, taking into cognisance the obligation of the
Philippines under international conventions to uphold human rights.
EXTRADITION, is defined as 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 criminal investigation directed against him or
execution of a penalty imposed on him under the penal and criminal law of the requesting
state or government. Thus characterized as the right of the a foreign power, created by
treaty to demand the surrender of one accused or convicted of a crimes within its territorial
jurisdiction, and the correlative obligation of the other state to surrender him to the
demanding state.
The extradited may be subject to detention as may be necessary step in the process of
extradition, but the length of time in the detention should be reasonable.
In the case at bar, the record show that the respondent, Muñoz has been detained for 2 years
without being convicted in Hongkong.
The Philippines has the obligation of ensuring the individual his right to liberty and due
process and should not therefor deprive the extraditee of his right to bail PROVIDED that
certain standards for the grant is satisfactorily met. In other words there should be “CLEAR
AND CONVINCING EVIDENCE”.
However in the case at bar, the respondent was not able to show and clear and convincing
evidence that he be entitled to bail. Thus the case is remanded in the court for the
determination and otherwise, should order the cancellation of his bond and his immediate
detention.
Mejoff V. Director
FACTS:
 Boris Mejoff, an alien of Russian descent who was brought to this country from
Shanghai as a secret operative by the Japanese forces during the latter's regime in
these Islands. (The petitioner's entry into the Philippines was not unlawful; he was
brought by the armed and belligerent forces of a de facto government whose
decrees were law furing the occupation.)
 He was arrested on March 18, 1948 as a Japanese spy, by U. S. Army
Counter Intelligence Corps. and later there was an order for his release.
 But on April 5, 1948, the Board of Commissioners of Immigration declared that Mejoff
had entered the Philippines illegally in 1944 and ordered that he be deported on the
first available transportation to Russia.
 He was transferred to Cebu Provincial Jail and then Bilibid Prison at Muntinlupa on
October, 1948.
 He then filed a petition for writ of habeas corpus on the basis that too long a
detention may justify the issuance of a writ of habeas corpus - denied
 Over two years having elapsed since the decision aforesaid was promulgated, the
Government has not found way and means of removing the petitioner out of the
country, and none are in sight, although it should be said in justice to the deportation
authorities, it was through no fault of theirs that no ship or country would take the
petitioner.
 This is his 2nd petition for writ of habeas corpus
ISSUE: W/N the writ of habeas corpus should be granted since he was detained longer
than a reasonable time
HELD: YES. writ will issue commanding the respondents to release the petitioner from
custody upon these terms: The petitioner shall be placed under the surveillance of the
immigration authorities or their agents in such form and manner as may be deemed
adequate to insure that he keep peace and be available when the Government is ready
to deport him. The surveillance shall be reasonable and the question of reasonableness
shall be submitted to this Court or to the Court of First Instance of Manila for decision in
case of abuse. He shall also put up a bond for the above purpose in the amount of
P5,000 with sufficient surety or sureties, which bond the Commissioner of Immigration is
authorized to exact by section 40 of Commonwealth Act No. 613.
 Aliens illegally staying in the Philippines have no right of asylum therein even if they
are "stateless," which the petitioner claims to be.
 The protection against deprivation of liberty without due process of law and except
for crimes committed against the laws of the land is not limited to Philippine citizens
but extends to all residents, except enemy aliens, regardless of nationality.
 Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts the generally
accepted principles of international law as part of the law of Nation." And in a
resolution entitled "Universal Declaration of Human Rights" and approved by the
General Assembly of the United Nations of which the Philippines is a member, at its
plenary meeting on December 10, 1948, the right to life and liberty and all other
fundamental rights as applied to all human beings were proclaimed. It was there
resolved that "All human beings are born free and equal in degree and rights" (Art.
1); that "Everyone is entitled to all the rights and freedom set forth in this Declaration,
without distinction of any kind, such as race, colour, sex, language, religion, political
or other opinion, nationality or social origin, property, birth, or other status" (Art. 2):
that "Every one has the right to an effective remedy by the competent national
tribunals for acts violating the fundamental rights granted him by the Constitution or
by law" (Art. 8); that "No one shall be subjected to arbitrary arrest, detention or exile"
(Art. 9); etc.
 petitioner's unduly prolonged detention would be unwarranted by law and the
Constitution, if the only purpose of the detention be to eliminate a danger that is by
no means actual, present, or uncontrollable
 Imprisonment to protect society from predicted but unconsummated offenses is so
unprecedented in this country and so fraught with danger of excesses and injustice
that I am loath to resort it, even as a discretionary judicial technique to supplement
conviction of such offenses as those of which defendants stand convicted.
 If that case is not comparable with ours on the issues presented, its underlying
principle is of universal application.
 As already noted, not only are there no charges pending against the petitioner, but
the prospects of bringing any against him are slim and remote.

Soering v United Kingdom (1989) 11
EHRR 439
Introduction
Soering v United Kingdom (1989)1 concerns Articles 3, 6 and 13 of the
European Convention on Human Rights (ECHR) 1950 and the potential
extradition to the USA by the UK of a West German national to face trial in
Virginia, USA on a murder charge. Soering argued that if he were found guilty
of murder and sentenced to death, that he would experience ‘death row-
phenomenon’ which would lead to the violation of his Convention rights.
Issues
The Soering case raises the issue of non-refoulement, which engages state
responsibility by the act of removal of an individual to a state where he or she
will be exposed to a certain degree of risk of having her or his human rights
violated.2 The decision in Soering affirms the extraterritorial applicability of
human rights guarantees within the ECHR as well as the absolution
prohibition against torture under Article 3.
Facts
Jens Soering is a German national, who at the time of the alleged offence was
a student at the University of Virginia.3 He and his girlfriend were wanted in
Bedford County, Virginia, USA for the murder of his girlfriend’s parents. The
couple disappeared from Virginia in October 1985, and were later arrested in
England in April 1968 in connection with cheque fraud.4 Soering was
interviewed by Bedford County police in the UK, which led to his indictment
on charges of capital murder and non-capital murder. The USA commenced
extradition proceedings with the UK under the terms of the Extradition Treaty
of 1972, between the USA and UK.5 Mr Soering applied to the European Court
on Human Rights (ECtHRs) alleging the breach of Article 3, Article 6 and
Article 13 ECHR.
The Decision of the ECtHRs
Article 3 – Soering alleged that the decision of the secretary of state for the
home department to surrender him to the US would, if implemented give rise
to a breach of Article 3 ECHR. Article 3 provides: that “No one shall be
subjected to torture or to inhuman or degrading treatment or
punishment”.6 The breach of Article 3 is linked to the treatment the applicant
argued he would receive if he were to be detained on death row in Virginia
for an expected six to eight years.7 The ECtHR accordingly found the UK to be
in breach of Article 3.
Article 6 – Soering alleged that the lack of legal aid in Virginia and the failure
of the English Magistrates court to consider his psychiatric condition
amounted to a breach of the right to a fair trial. The ECtHR found they had no
jurisdiction to consider this matter.8
Article 13 – Soering further argued that he had no effective remedy in the UK
with respect to his complaint under Article 3. The ECtHR found there to be no
breach of Article 13; since Mr Soering had the opportunity to bring judicial
review proceedings at the appropriate time within UK law.9
Analysis
The ECtHR in defining torture, inhuman or degrading treatment under Article
3 ECHR, argued that ill-treatment must attain a minimum level of severity to
fall within the scope of Article 3. This depends upon the circumstances of the
case and context of the treatment or punishment, the manner and method of
its execution, its duration and physical or mental effects.10 The Soering
doctrine is narrowly construed.11 Central to the ECtHRs reasoning was the
‘serious and irreparable nature of the alleged suffering’.12 Soering is part of the
courts extensive jurisprudence in support of the rights of
prisoners.13Furthermore, it first established the principle that a Member State
can be in breach of a Convention right merely by expelling an individual to a
state in which he or she would face a breach of a Convention right.14 The UK
itself did not need to carry out any acts of torture, inhuman or degrading
treatment to be in breach of Article 3, they merely need to place Soering at
the ‘real risk’ of being subject to treatment in breach of Article 3. The Soering
decision effectively established a hard protection against extradition in Article
3 cases.15 This principle was later extended to violations of Article 6 (fair
trial),16 Article 13 (lack of effective remedy)17 and Protocol 4 (collective
expulsions).18 In Vilvarjah and Others v the United Kingdom,19 the ECtHR
subsequently imposed certain limitations upon extradition, requiring that ‘a
sufficiently clear causal link between the removal and any ill-treatment which
might have occurred’.
weight to the right to life under Article 2 ECHR. The ECtHR once again
reaffirmed the absolute nature of the prohibition on torture in rejecting these
arguments.
The ECtHR has noted the absolute prohibition of Article 3 and distinguished
this from cases in which other Convention rights might be violated upon
expulsion.24 Z and T v UK, 25concerned the case of two Pakistani individuals
who argued that upon the return to Pakistan, would not be ‘able to live freely
and openly as Christians’, arguing a potential breach of their freedom of to
practice a religion under Article 9. In rejecting their application, the ECtHR
held that ‘such compelling considertaion [as absoluteness]’ does not
automatically apply under the other provisions of this Convention.26

The Soering doctrine has proved particularly controversial in cases of

suspected terrorism. In Chahal v UK,20 Karamjit Singh Chahal was a Sikh who
illegally entered the UK in 1971. A general amnesty in 1974 permitted him to
stay in the UK. However, he was later arrested in connection with a conspiracy
to kill the Indian Prime Minister and a deportation order was made by the UK
on the grounds of national security under section 3(5) Immigration Act 1971.
Chahal took his case to the ECtHR, alleging a real risk of a breach of his Article
3 rights if he was deported. The majority of the ECtHR affirmed the absolute
prohibition of torture, finding that if there is a substantial risk in deportation
cases that there would be a breach of Article 3, the deportee’s status could
not be a material consideration.21 It has been suggested that the Chahal
decision sometimes makes it difficult for governments to deal with suspected
terrorists.22 However, the decision was later affirmed by the ECtHR in Saadi v
Italy,23 despite an argument by the UK that Chahal had failed to give proper