Procedure | Extradition | Treatment of Aliens | PUBLIC INTERNATIONAL LAW

Extradition Procedure under Public International Law and Philippine Law

Extradition is the legal process by which a state, at the request of another state, surrenders a person accused or convicted of a crime committed within the jurisdiction of the requesting state. It is an aspect of public international law, governed by treaties and domestic law, ensuring that justice is administered regardless of national boundaries.

I. Governing Laws on Extradition

1. Public International Law:

   • Treaties: Extradition is primarily governed by treaties between states, which create mutual obligations to surrender individuals sought for prosecution or punishment. Examples include bilateral treaties or multilateral agreements like the European Convention on Extradition (1957).
   • Principle of Reciprocity: In the absence of a treaty, extradition may be granted based on the principle of reciprocity, where states return favors of extradition on a case-by-case basis.

2. Philippine Domestic Law:

   • Presidential Decree No. 1069 (The Philippine Extradition Law): This law governs the extradition procedure in the Philippines. It incorporates relevant provisions from public international law and ensures the implementation of extradition treaties to which the Philippines is a party.
   • Department of Justice (DOJ) Circulars: The DOJ issues circulars detailing procedures, as the primary agency in charge of handling extradition requests.

---

II. General Principles of Extradition

1. Dual Criminality:

   • The act for which extradition is sought must be considered a crime in both the requesting state and the requested state (Philippines).

2. Political Offense Exception:

   • Extradition may be denied if the offense is of a political nature. Crimes such as rebellion or treason may fall under this exception, unless they involve acts of terrorism or war crimes, which are excluded from the political offense doctrine in most treaties.

3. Non-Extradition of Nationals:

   • Some states refuse to extradite their nationals. The Philippines generally does not have this restriction and may extradite its citizens, subject to specific legal safeguards.

4. Rule of Specialty:

   • The person extradited can only be tried or punished for the offense for which extradition was granted. If the requesting state wishes to try the individual for a different crime, further consent is required.

5. No Extradition for Certain Punishments:

   • Extradition may be refused if the requesting state seeks to impose a punishment deemed unacceptable by the requested state, such as the death penalty or torture. In the Philippines, extradition is prohibited if the requesting state will impose the death penalty, unless it provides assurances that the sentence will not be carried out.

---

III. Extradition Procedure in the Philippines

1. Initiation of the Process:

   • Extradition begins with a formal request from a foreign state, typically through diplomatic channels, either by treaty obligation or through reciprocity. The request is received by the Department of Foreign Affairs (DFA), which endorses it to the Department of Justice (DOJ) for evaluation.

2. Evaluation by the Department of Justice (DOJ):

   • The DOJ assesses whether the extradition request complies with the applicable treaty or law. Key considerations include:
     • Whether the offense is punishable in both countries (dual criminality).
     • Whether the offense is political in nature.
     • Whether the accused will receive fair treatment and trial in the requesting state.

   If the DOJ finds the request sufficient, it forwards the request to the Regional Trial Court (RTC) of the jurisdiction where the fugitive resides.

3. Filing of a Petition for Extradition:

   • The DOJ, acting for the requesting state, files a petition for extradition in the RTC. This is a non-criminal proceeding and is handled under civil procedure rules.

4. Issuance of Provisional Arrest Warrant:

   • Pending the determination of the petition, the court may issue a provisional warrant of arrest to prevent the fugitive from absconding. This can also be requested if the requesting state has asked for the temporary detention of the fugitive while the extradition request is being processed.

5. Hearings and Determination by the Regional Trial Court:

   • The RTC schedules hearings to determine whether the individual should be extradited based on the evidence presented. The court ensures that due process is observed, and the fugitive is allowed to present defenses.
   • Defenses that may be raised include:
     • The absence of dual criminality.
     • Political offense exemption.
     • Risk of cruel and unusual punishment (e.g., death penalty, torture).
     • Non-compliance with treaty requirements.

   The court’s decision focuses on the legal sufficiency of the extradition request, not the guilt or innocence of the fugitive.

6. Appeal Process:

   • The fugitive may appeal the RTC's decision to the Court of Appeals and ultimately to the Supreme Court. However, appeals are generally limited to questions of law rather than factual determinations.

7. Surrender of the Fugitive:

   • If the RTC grants the petition, the fugitive is turned over to the requesting state. The process of surrender is coordinated between the DOJ, the Bureau of Immigration, and the requesting state's authorities.

---

IV. Provisional Arrest Without Formal Request

In urgent situations, where the requesting state needs immediate action, the Philippines may provisionally arrest an individual even before receiving a formal request for extradition. This typically occurs when the fugitive is likely to flee, but there must be assurances that the formal request will follow within a stipulated period (usually 60 days).

---

V. Safeguards in Extradition

1. Protection of Human Rights:

   • Extradition may be refused if the fugitive's human rights are likely to be violated in the requesting state. For instance, if there is a credible risk of torture, inhuman treatment, or denial of due process, extradition may be denied.

2. Double Jeopardy:

   • Extradition may also be refused if the person has already been tried or convicted for the same offense in the Philippines (or another state), protecting them from double jeopardy.

3. Prescription of Offense:

   • If the offense is no longer punishable due to the lapse of the statute of limitations under Philippine law or the law of the requesting state, extradition will not be granted.

---

VI. Relation to International Criminal Law

Extradition also plays a key role in the enforcement of international criminal law, particularly for crimes like genocide, war crimes, and crimes against humanity. States are often required to either extradite or prosecute individuals accused of such crimes under principles like aut dedere aut judicare.

For example, under the Rome Statute of the International Criminal Court (ICC), although the ICC has its own mechanisms for securing the surrender of individuals, extradition can complement efforts to bring perpetrators of international crimes to justice.

---

Conclusion

Extradition is a vital legal mechanism for international cooperation in criminal matters, ensuring that individuals accused of crimes cannot evade justice by fleeing across borders. In the Philippines, extradition is governed by a complex framework that balances the need for international cooperation with the protection of human rights and domestic legal safeguards. It involves coordination between international treaties, domestic law, and various government agencies, ensuring that due process is followed at every stage of the procedure.

Distinguished from Deportation | Extradition | Treatment of Aliens | PUBLIC INTERNATIONAL LAW

Extradition vs Deportation under Philippine Law and Public International Law

1. Extradition: Definition and Key Concepts

Extradition is the formal process by which one state surrenders an individual to another state where the person is accused or convicted of committing a crime. This process typically follows an official request made through diplomatic channels and is governed by treaties or international agreements.

In the Philippines, extradition is primarily governed by:

• Extradition treaties between the Philippines and other countries, such as the RP-US Extradition Treaty (signed in 1981 and ratified in 1994).
• Presidential Decree No. 1069 or the "Philippine Extradition Law," which provides for the process of extradition within the country.

Key Elements of Extradition:

• Judicial Process: In the Philippines, an extradition request is filed before the Department of Justice (DOJ) and proceeds with a hearing in a Regional Trial Court (RTC). The individual can challenge the request on several grounds, including issues of human rights and procedural errors.
• Diplomatic Nature: Extradition requests are state-to-state communications, handled at the highest levels of government. The requesting country typically sends its request through diplomatic channels.
• Existence of a Treaty: Extradition is generally based on a treaty between two states. Without such a treaty, extradition may still occur under the principle of comity, but this is less common.
• Dual Criminality: For an individual to be extradited, the alleged act must be considered a crime in both the requesting and requested states. This ensures that extradition is not used for politically motivated prosecutions.
• Non-refoulement of Political Offenders: An individual cannot be extradited for crimes that are political in nature, as outlined in Article 3 of the Philippine Extradition Law and under international conventions like the 1951 Refugee Convention.

2. Deportation: Definition and Key Concepts

Deportation is the administrative act of removing an alien from a country for violating immigration laws, and it is not based on criminal offenses that are subject to international cooperation, unlike extradition. In the Philippines, deportation is governed by:

• Commonwealth Act No. 613, or the Philippine Immigration Act of 1940, as amended.
• Regulations from the Bureau of Immigration (BI), which oversees deportation procedures.

Key Elements of Deportation:

• Administrative Process: Deportation is handled administratively by the BI. The individual is notified of the charge and can present evidence to challenge the deportation order. Appeals can be made to the Office of the President or judicially through courts.
• Immigration Violations: Common grounds for deportation include overstaying, engaging in activities contrary to the purposes of their visa, committing acts detrimental to public welfare, or involvement in criminal activity within the country.
• Immediate Removal: Once ordered for deportation, the alien is removed from the country without the need for a diplomatic request from the alien’s home state.
• No Need for Treaty: Unlike extradition, deportation does not require an international treaty. It is solely based on the state’s immigration laws and policies.
• Sovereign Right: Deportation is considered a right of a sovereign state to maintain its internal order and protect national security.

3. Differences between Extradition and Deportation

Aspect	Extradition	Deportation
Purpose	Surrender a person to another state for criminal prosecution or execution of a sentence.	Remove an alien from the country for violating immigration laws.
Legal Basis	Governed by extradition treaties and domestic law (PD 1069).	Governed by immigration law (Commonwealth Act No. 613).
Process	Judicial process initiated by a foreign state’s request.	Administrative process initiated by the host country.
Grounds	Criminal charges or convictions in the requesting state.	Violation of immigration laws, overstaying, or public safety threats.
Dual Criminality	Required. Crime must be recognized in both states.	Not required. Grounds for deportation depend on local immigration laws.
Role of Treaties	Requires an extradition treaty or agreement between states.	No treaty required. Based on sovereign right to regulate immigration.
Nature of Crime	Involves criminal offenses.	Primarily administrative in nature, dealing with immigration status.
Grounds for Refusal	Political crimes, persecution, or inhumane treatment.	Discretion of immigration authorities, often based on security concerns or law violations.

4. Similarities Between Extradition and Deportation

While extradition and deportation are distinct in many respects, they share certain similarities, particularly in how they deal with non-citizens and the enforcement of legal measures aimed at removing an individual from the state:

• Involves Foreign Nationals: Both extradition and deportation primarily deal with the removal of aliens (foreign nationals) from the host country.
• Due Process Considerations: Both processes provide some form of due process protection to the individual, although the standards and procedures may differ. In extradition, courts play a larger role, while in deportation, administrative processes are predominant.
• International Implications: Both can have significant international consequences, as they involve the treatment of foreign nationals and the interplay between domestic and international law.

5. Grounds for Refusing Extradition

The Philippines, like many other states, can refuse extradition based on certain grounds:

• Political Crimes: Article 3 of the Philippine Extradition Law prohibits the extradition of individuals for offenses of a political nature. This is a common principle in international law to prevent the abuse of extradition for political persecution.
• Human Rights Concerns: Extradition may also be refused if the individual is likely to face torture, inhumane treatment, or a denial of a fair trial in the requesting state, in line with international human rights standards, such as the International Covenant on Civil and Political Rights (ICCPR).
• Death Penalty: The Philippines may refuse to extradite an individual to a state where they may face the death penalty unless assurances are given that the death sentence will not be carried out, as the Philippines is a party to the Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty.

6. Practical Implications in the Philippines

In the Philippines, extradition and deportation are often confused due to their overlapping nature of removing foreign nationals. However, the key distinction lies in the purpose (extradition is for criminal prosecution, while deportation is for immigration law violations). The processes are handled by different authorities, with extradition involving the DOJ and courts, while deportation is managed administratively by the BI.

In conclusion, extradition and deportation, while both dealing with the removal of foreign nationals, serve different legal purposes and follow different procedures. Extradition is a formal, treaty-based judicial process aimed at criminal prosecution or punishment in another state, whereas deportation is an administrative action based on immigration law violations. Understanding these distinctions is crucial for addressing legal challenges related to the treatment of aliens under Philippine law and public international law.

Fundamental Principles | Extradition | Treatment of Aliens | PUBLIC INTERNATIONAL LAW

Extradition: Fundamental Principles in Public International Law and Treatment of Aliens

Extradition is the legal process by which one jurisdiction (usually a State) formally requests another jurisdiction to surrender a person accused or convicted of a crime for the purposes of facing trial or serving a sentence. Extradition is governed by treaties, national laws, and customary international law principles. It is a crucial tool for combatting transnational crime, while balancing state sovereignty and the rights of the individual being extradited.

Here is an in-depth analysis of the fundamental principles governing extradition:

1. Principle of Reciprocity

The principle of reciprocity refers to the understanding that extradition between states is often premised on a reciprocal agreement. Under this principle, one state agrees to extradite a person to another state if the other state agrees to reciprocate in similar circumstances. This is typically formalized through extradition treaties.

• No treaty, no obligation: In the absence of a treaty, there is generally no obligation under international law for one state to extradite a person to another state. However, states may still choose to extradite based on comity or bilateral relations.

2. Double Criminality Principle

The principle of double criminality dictates that extradition will only be granted if the act for which extradition is requested constitutes a crime in both the requesting and the requested states. In other words, the alleged offense must be punishable under the laws of both states. This ensures that no state is compelled to extradite for an offense that it does not recognize as criminal.

• Application in practice: The elements of the crime need not be identical between the two states, but the underlying conduct must be punishable in both jurisdictions.

3. Specialty Principle (Rule of Specialty)

The specialty principle provides that once a person is extradited, they can only be prosecuted, punished, or detained for the specific offenses for which extradition was granted. The extraditing state must agree to the prosecution or punishment of any other crimes committed prior to extradition. This principle protects the individual from being extradited for one offense and subsequently tried for another without the consent of the requested state.

• Consent of the requested state: If the requesting state wishes to prosecute the individual for additional offenses, it must seek further consent from the requested state.

4. Non-Extradition of Nationals

Many states, particularly civil law countries, adhere to the principle that they will not extradite their own nationals. Instead, they may opt to prosecute their citizens for crimes committed abroad (under the principle of active personality). Some states include this provision in their constitutions or national laws, while others reserve the right to refuse extradition on this ground even if an extradition treaty exists.

• Exceptions and trends: While traditionally, states refused to extradite their nationals, modern treaties may allow for exceptions or mutual agreements, particularly in cases of serious transnational crimes like terrorism, human trafficking, or drug trafficking.

5. Human Rights and Fair Trial Standards

Extradition should not occur if it would violate the fundamental human rights of the individual, as guaranteed under international human rights law. This is rooted in the non-refoulement principle, which prohibits the transfer of individuals to a state where they face a real risk of torture, inhuman or degrading treatment, or punishment.

• Prohibition against extradition where the death penalty may be imposed: Many states refuse to extradite individuals to countries where they could face the death penalty unless assurances are provided that the death penalty will not be imposed or carried out.
• Fair trial guarantees: Extradition may be denied if there are serious concerns that the individual will not receive a fair trial in the requesting state, particularly in cases where the judicial system is corrupt or compromised.

6. Non-Political Offense Exception

States generally refuse to extradite individuals if the offense for which extradition is requested is political in nature. This is known as the political offense exception. Crimes such as rebellion, sedition, and treason are often considered political offenses. The rationale behind this exception is the protection of individuals involved in political struggles from persecution.

• Limitations: Crimes such as terrorism, war crimes, and crimes against humanity are generally excluded from the definition of "political offenses" under most modern extradition treaties and conventions.

7. Evidentiary Requirements

Extradition often requires that the requesting state provide sufficient evidence to establish probable cause or a prima facie case that the individual committed the offense. The specific evidentiary standard depends on the terms of the applicable treaty and the laws of the requested state.

• Varying standards: Some states require the same level of proof as for domestic arrest warrants, while others may require more rigorous evidence to avoid abuses of the extradition process.

8. Extradition Treaty Framework

Extradition typically operates within a formal treaty framework. These treaties outline the specific procedures, obligations, and exceptions that apply between two states. Key provisions typically include:

• A list of extraditable offenses (usually serious crimes punishable by imprisonment).
• Procedures for requesting extradition, including submission of documents such as arrest warrants, indictments, and evidence.
• Time limits within which the requested state must respond.
• Provisions regarding the custody and transportation of the extradited individual.

9. Lapse of Time/Statute of Limitations

Many extradition treaties or national laws stipulate that extradition will not be granted if the statute of limitations for the offense has expired under either the law of the requesting or requested state. This prevents the extradition of individuals for old offenses that no longer merit prosecution.

10. Political Discretion and Diplomacy

Even when all legal requirements are met, the final decision on whether to extradite an individual often involves a degree of political discretion. States may consider the broader diplomatic and international relations implications of extradition requests.

• High-profile cases: In some cases, states may refuse to extradite individuals for political reasons, including asylum claims, or as a result of international tensions.

11. Extraterritorial Offenses

Some extradition treaties cover extraterritorial offenses, i.e., offenses committed outside the territory of the requesting state. These include crimes like human trafficking, terrorism, and organized crime that transcend national borders.

12. Asylum and Refugee Status

Extradition may be denied if the person being requested has been granted asylum or refugee status in the requested state. This is based on the principle of non-refoulement, which prohibits the return of refugees to a state where they may face persecution for reasons of race, religion, nationality, political opinion, or membership in a particular social group.

• Refugee status as a defense: If a person is granted refugee status in the requested state, they may invoke this as a defense against extradition if the requesting state is the state from which they fled.

Conclusion

Extradition is a complex legal mechanism governed by the interplay of national laws, international treaties, and customary international law. It seeks to strike a balance between enforcing criminal justice across borders, safeguarding individual rights, and maintaining state sovereignty. The fundamental principles of extradition — such as reciprocity, double criminality, specialty, protection against political persecution, and human rights considerations — ensure that the process is fair and respectful of international legal norms. The implementation of these principles depends largely on treaty obligations, national legal frameworks, and, at times, diplomatic considerations.