RP-SPAIN

TREATY
TRANSFER OF SENTENCED
PERSONS AGREEMENT
(TSPA)

ORDER OF
PRESENTATION
I . BACKGROUND OF THE TREATY
II. SALIENT PROVISIONS OF THE TREATY
III. ISSUES/CONCERNS
IV. PURPOSE/OBJECTIVE OF PRISONER
SWAPS
V. HUMANITARIAN/MORAL GROUNDS
VI. THE CASE AND THE TREATY

Background of the
Treaty

Signed on May 18, 2007

Substantially copied from the 1983 Strasbourg

Convention on
Transfer of Sentenced Persons, promulgated by the
Council of
Europe

Ratified by the Spanish Senate on November 6, 2007

Ratified by the Philippine Senate via Senate Resolution

No. 212

Composed of 23 Articles

Department of Justice for both States is the designated

central

Salient Features of the

Treaty

Purely
Consensual
(Based

on

Cooperation);
Aims to bring back a foreign prisoner into
his or her
country of nationality and to serve the
sentence
there;

Has a laudable humanitarian objective;

Terms
a) sentencing State - the State in

which the sentence was imposed on the

person who may be subject to transfer;
b) administering State - the State to
which the sentenced person may be, or
has been, transferred;
c) sentenced person - the person on
whom a punishment or measure involving
deprivation of liberty has been imposed
on account of a criminal offense;

Treaty applicable only on following

conditions:
a) if the acts or omissions on account of

which the sentence has been imposed

are punishable in the administering
State, although the definition thereof
may not be identical;
b) if the sentenced person is a national
of the administering State at the time of
the request for transfer;

Conditions (continuation)
c) if the judgment is final and there are no

legal proceedings relating to the offense or

any other offense is pending in the
sentencing State;
d) if the transfer is consented to by the
sentenced person or, in the event of
incapacity, by his legal representative;
e) if the part of the sentence still to be
served at the time of the receipt of the
request is at least one year; and

Conditions (continuation)
f) if the sentenced person has satisfied

payment of fines, court costs, civil

indemnities and/or pecuniary sanctions
of all kinds for which he is liable under
the terms of the sentence or has
provided sufficient security to ensure
payment thereof to the satisfaction of
the sentencing State, unless the
sentenced persons has been declared
insolvent;

Procedures
Request by either the sentencing State or

administering State, in writing, transmitted

through diplomatic channel & conveyed directly
to Central Authority of either State.
The sentenced person may request the transfer
through its own State.
Central Authority:
Dept. of Justice - Philippines
Ministry of Justice - Kingdom of Spain
Decision - shall be notified without delay to the other
State without any need for stating the grounds thereof

Jurisdiction
Jurisdiction: The sentencing State shall

have exclusive jurisdiction in respect of

proceedings of anykind the purpose of
which is to review the judgment.

Continued Enforcement
1. the enforcement of the sentence shall be

governed by the law of the administering

State.
2. When enforcing the sentence, the
administering State:
a) shall be bound by the duration of the sentence or

measure of deprivation of liberty;

b) shall be bound by the findings of facts indicated in
the judgment; and
c) shall not convert the sentence or deprivation of
liberty into pecuniary sanction.

Pardon, Amnesty, or
Commutation
Only the sentencing State may grant pardon,

amnesty or commutation of the sentence

pursuant to its Constitution and laws.
The administering State however may request
the sentencing State to grant pardon,
amnesty or commutation of the sentence by
submitting an application with sufficient
grounds.

Handing Over of the Sentenced

Person
1. The handing over of the sentenced person

by the sentencing State to the administering

State shall be at mutually agreed time and
place.
2. The transit costs for the sentenced person
shall be borne by the administering State as
of the time that the sentenced person is in its
custody

Entry into Force, Duration and

Termination
Effective - 30 days after written notification

to other party
Duration - Indefinite
Termination - anytime effective on the 180th
day after date of receipt of written notice of
termination from either contracting State
party.

ISSUES / CONCERNS

Social / Humanitarian
Issue
Families of sentenced persons can visit them,

or if they are of senior age, then they can

expect that they can, if hospitalized, can be
visited by their own family. That is really the
core of the exchange treaty.

Political Issue
RP should push for similar treaties in countries

where there are more overseas Filipino

workers in prison serving their sentences than
Spain. It should be a priority to show that we
are not favoring anyone.

Procedural Issue
Public Hearing: Like a petition for extradition,

transfer should have been subjected to public

hearing, to hear the opposition of the family of
the victim or the complainants.

International Issue
Possible embarrassment with other

contracting State and international

community when the action of the
Department of Justice might be temporarily
restrained by the SC

Humanitarian Purposes

 Transfer of Sentenced Persons Agreements

(TSPA) provide a legal framework for the

transfer of a convicted individual to his home
country in order for him to serve the
remaining portion of his penal sentence in a
place closer to the support system of family
and friends.

 Allowing Filipino nationals to serve their

sentences in correctional institutions where

members of their families can visit him or her
regularly, will advance the progress of
reformation and rehabilitation.

Additional consular protection for OFWs.

helped out and strengthened labor protection

and assistance programs.

A sentenced person cannot be transferred

unless he has paid the fines, court costs,

civil indemnities and other pecuniary
sanctions.
Article 62 of the agreement, only the
sentencing state (Philippines) can grant
pardon, amnesty or commutation of
sentence to the individual.

Purpose/Objective
The RP-Spain Treaty is a mutually

beneficial arrangement because in lieu of

this Spanish national, we will be able to
get two Filipinos who are in prison in
Spain, and they would be able to serve
their jail terms here.

Filipino citizens sentenced to jail in Spain may

request to be transferred to the home country

to serve the remainder of their prison
sentence so that their families can visit them,
or if they are of senior age, then they can
expect that they can, if hospitalized, be
visited by their own family.

THE CASE AND THE TREATY

BORN with a Spanish national father, Francisco Juan Paco Larraaga

can be incarcerated in Spain through the Republic of the PhilippinesKingdom of Spain Treaty on the Transfer of Sentenced Persons (RPSpain TSPA).
Larraaga, now 32, and six others were convicted of kidnapping,
illegal detention, rape, and homicide in connection with the
abduction, rape, and death of sisters Jacqueline and Marijoy Chiong in
Cebu in 1997.
The impending transfer of Larraaga to a jail facility in Spain gained
attention as several groups reacted on the matter.
Thelma Chiong, mother of the victims, said she was shocked over the
justice departments sudden approval of the request of Larraaga.
Malacanang, for its part, denied having a hand in the issue.
Palace officials instead said they are open to a review of the
Philippine-Spain treaty.

THE CASE AND THE TREATY

According to the Prison Record by the Bureau of

Correctional, Larraaga will serve, with good conduct and

time allowance (GCTA), a total of 14 years, 9 months, and
28 days.
The sentence can be prolonged to 25 years, 2 months, and
1 day without GCTA.
The Regional Trial Court Branch 7 of Cebu City issued a
certification last May 26, 2009 stating that the P750,000
was deposited to the Office of the Clerk of Court as payment
for the civil liability of the accused.
Faller said there are, as of now, two Filipinos who were
incarcerated of drug trafficking in Spain.The two are also
requesting to be transferred in the Philippines through the
RP-Spain TSPA.
If this pushes through, Larraaga is the first Spanish

Spains request
Department of Justice (DOJ) received a

request from the Department of Foreign

Affairs (DFA) representing the Embassy of
Spain for Larranagas transfer to Spanish
prison.
The DOJ is requested to consider the transfer
(Larraaga) to Spanish prison for the basis of
the treaty. We examined the documents and
attached in the documents was the passport
of Larranaga, he said.

Conditions of transfer
met
Larranaga met the requirements of Article 4 of the RP-Spain TSPA entitled Conditions of

Transfer to wit:
1.the sentence has been imposed are punishable in the administering State, although the
definition thereof may not be identical;
2. He is a Spanish national at the time of the request for transfer;
3. judgment is final and there are no other legal proceedings relating to the offense or any

other offense is pending in the sentencing State;

4. If the transfer is consented to by the sentenced person or, in the event of incapacity, by

his legal representative;

5. the part of the sentence still be served at the time of the receipt of the request is at least

one year; According to the Prison Record by the Bureau of Correctional, Larraaga will serve,
with good conduct and time allowance (GCTA), a total of 14 years, 9 months, and 28 days.
6. the sentenced person has satisfied payment of fines, court costs, civil indemnities. The

Regional Trial Court Branch 7 of Cebu City issued a certification last May 26, 2009 stating
that the P750,000 was deposited to the Office of the Clerk of Court as payment for the civil liability of the accused.

Larranagas citizenship
The Spanish Embassy submitted the Birth Certificate

of Larraaga stating that he was born on December

27, 1977 in Cebu to Margarita Osmena-Gonzales who
is a Filipina and Manuel Arbelais-Larranaga who is a
Spanish national as indicated in his birth certificate.
the Spanish Civil Code, indicated Larraaga as a
Spanish citizen through the jus sanguinis principle
stating that the citizenship can be acquired by blood
regardless of whether he or she was born in Manila or
in other country.
Larraaga being citizen of both countries, Philippines
and Spain, is covered by the RP-Spain TSPA Treaty.

DOJ Position
This treaty was ratified by the Senate several years ago,by the

Philippine Senate and, therefore, binding to our country and is

enforceable by both parties.
It must also be emphasized that under Article 2, Section 2 of the

Constitution, the Philippines adopts the generally accepted principles

of international law as part of the laws of this country.
There is a Latin maxim in international law which says: Pacta sunt

servanda, meaning that a valid treaty must be accepted and

observed in good faith. Upon this principle, we cannot renege on our
commitment just because some people are against its
implementation. For as long as the treaty remains and both parties
observe it in good faith, we must abide by it and carry out our
obligation under it.
The only way by which a valid treaty may be abrogated is when some

developments happen which are inconsistent with it, as when the

parties or any of the parties may refuse to carry it out. This is the socalled doctrine of Rebus sic stantivus. A ratified treaty is a
commitment which we must honor, and the test of such a treaty is in
the manner in which we implement the same.

DFA position
Foreign Affairs Secretary Alberto Romulo yesterday defended the 2007 RP-

Spain Transfer of Sentenced Persons Agreement (TSPA), saying it is not a

one-way street that will benefit only Spanish citizens but Filipinos as
well.
Romulo explained the treaty on prisoners of the Philippines with Spain,
also with Thailand and Hong Kong, would benefit Filipino citizens
sentenced to jail who may request to be transferred to the home country
to serve the remainder of their prison sentence.
We abide by the laws. Its not a one-way street in the Transfer of
Sentenced Persons Agreement. Its merely a transfer. It doesnt mean
pardon, Romulo told a news conference.
Romulo referred to the case of Francisco Paco Larraaga and clarified it
does not mean a pardon.Larraaga is said to be the great grandson of the
late President Sergio Osmea Sr.
Romulo said the DOJ had made it clear that pardon would be decided only
by the issuing country, that is the Philippines, in the case of Larraaga.

Thelma Chiong, mother of the victims, said

she was shocked over the justice

departments sudden approval of the request
of Larraaga.
Faller also said the Chiong family has the right
to appeal on Larraagas transfer to Spain.
They have the right to file an appeal, they
can state their reason and we will consider
that, said Faller.

A lawmaker has called for a congressional inquiry into the

decision of the Department of Justice (DoJ) to allow

convicted rapist Juan Francisco Paco Larraaga to serve
out the rest of his life sentence in a Spanish prison.
Cagayan de Oro Rep. Rufus Rodriguez filed a resolution
asking the House of Representatives to summon DoJ
officials to explain why they agreed for Larraaga to be
transferred to Spain under a prisoners exchange treaty
between the two countries.
Rodriguez said he was concerned that the treaty was
benefiting only the rich, who he said were also the ones
who usually have dual citizen

party-list lawmaker, Gabriela Rep. Luzviminda

Ilagan, warned that Larraaga might enjoy many

benefits in Spain and might attain his freedom
once he is there.
Once in Spain, we cannot stop Larraaga from
pursuing every possible means to get out of jail,
Ilagan said in a statement.
And the Philippine government can do nothing
about it because it already transferred authority
and jurisdiction over Larraagas case to the
Spanish justice system, she added.

ISSUE: Whether or not the family of the victim

of convicted prisoner can stop the prisoner
transfer in the case of Larranaga
The DOJ said that even with the intervention of the Chiongs in the petition, they would not stop the

transfer of Larraaga to a jail facility in Spain since he already complied with the treaty conditions.
Justice Secretary Agnes Devanadera said there is no provision under the treaty on prisoner exchange
between Philippines and Spain requiring consultation with the family of the victims before the jail
transfer could be undertaken.
Sen. Miriam Defensor-Santiago, on the other hand, called on the DOJ to issue the implementing rules
and regulations on the TSPA.Santiago suggested a public hearing should be made on any petition
invoking the TSPA to prevent controversies.She said the hearing is proper since the adverse party
would also be notified on any petition to transfer the custody of a prisoner.And (those) who are
interested in keeping the alien here would raise their objections properly, and be heard at least by
the judge, Santiago said.Santiago stressed the danger of keeping a foreigner in prison in the
presence of any transfer treaty such as the TSPA.The danger of keeping a foreign national in jail
even if there is a transfer treaty is that he might file in an international tribunal a complaint for
violation of human rights if the jail conditions in the sentencing country are below the standards of
his own country, she said.
Santiago also denied the treaty was made to accommodate the transfer of Larraaga to Spain.
The family led by matriarch Thelma Chiong had blamed Malacaang and Santiago for intervening
with the judiciary in the deportation of Larraaga, a Spaniard convicted in the rape slay of her
daughters.
I dont know because I was never approached by anybody on behalf of Larraaga or even
Malacaang, Santiago said.
I was just requested to prioritize the treaty in time for the Presidents (Arroyos) state visit, she
said. We normally do that as a matter of courtesy to another branch of government.
Santiago said the Chiongs merely wanted to be notified beforehand of any decision to transfer one of
the convicts out of jail.

There is a pending case before the Supreme Court, and there is

danger that the action of the Department of Justice might be

temporarily restrained by the SC. So in order to avoid that possible
embarrassment, I humbly think that the DOJ should just issue their
implementing rules and regulations, which should normally
include--like in an extradition hearing--a public hearing where the
adverse party is also notified. There is no automatic extradition;
there is always a hearing before a court of justice so that the
persons who might be affected by the extradition proceedings and
who are interested in keeping the alien here would raise their
objections properly, and be heard at least by the judge. There is
nothing wrong with extraditing, or in this case transferring, the
foreign citizen, provided that the other party has been notified. I
think that is all they are asking for; they just want to be heard on
why he should be kept here rather than sent to Spain.