I. Philippine Constitution. Article 2, Section 2. The Philippines renounces war as an instrument of national policy, 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.

TABLE OF EXTRADITION WALA

PROCEDURE ON EXTRADITION CHECK SA BABA PD 1069

II. U.S. vs. JUDGE PURUGANAN – “Mark Jimenez / extradition is not criminal in nature / no bail” While his case was pending in the US (tax evasion & conspiracy to defraud the US Government), Mark Jimenez fled to the Phils. Thus, the US seeks to extradite him. During the extradition proceedings, Jimenez applied for bail. Is he entitled to bail? No. Extradition proceedings are sui generis. They are not criminal proceedings w/c call into operation the rights of the accused under the Bill of Rights. Thus the right to bail does not accrue. The only question that has to be resolved in such proceedings is whether he is extraditable and the extraditing country complied w/ the treaty. It is only a measure of international judicial assistance, usually summary in nature, and requires merely a prima facie case. Final discretion lies w/ the President. It is not concerned w/ his guilt or innocence, w/c will be tried separately by the extraditing country. Further, Jimenez has demonstrated the capacity and will to flee, w/c is precisely what the Extradition Treaty guards against.

The general rule is that in extradition proceedings, bail is NOT a matter of right. It may only be granted as an exception if:

1. The defendant can demonstrate that he is not a “flight risk,” and 2. Exceptional, humanitarian, or compelling circumstances.

Jimenez bears the burden of proving the existence of any of the 2 exceptions.

Dissent of Justice Puno From the moment a person is arrested, the guarantees under the Bill of Rights operate, including his right to bail. This is more in accord w/ the Universal Declaration of Human Rights as well as the Covenant on Civil and Political Rights.

DD: A “flight risk” is a person who demonstrates the capacity and the will to escape.

XII. GOVERNMENT OF HONG KONG v. OLALIA - Juan Antonio Munoz was wanted in HK. He was arrested here in the Philippines. He applied for bail which was initially denied but was granted by Judge Olalia on reconsideration. A petition for certiorari was filed in the SC where the court held that Judge Olalia did not err. Extradition is not a criminal proceeding but is an administrative proceeding. Although the court in Puruganan ruled that bail only applies to criminal proceeding, the decision was revised taking into consideration the various treaty obligations of the Philippines in international law that uphold human rights. Among the rights involved is the right to liberty. Although our extradition law does not provide a grant for bail to an extraditee, it neither prohibits an application for bail. Extradition proceeding is sui generis and partakes of an administrative nature. However, extradition bears all the earmarks of a criminal proceeding. A potential extraditee may be detained and arrested. While the Philippines must honor its extradition obligation to HK, it should not diminish Munoz’s right to life, liberty, and due process which are guaranteed not only by the constitution but also by the various international covenants to which the Philippines is a party. Thus, Munoz is entitled to bail, provided that he proves with clear and

convincing evidence that he is not a flight risk. Case was remanded to the trial court to see if there is clear and convincing evidence that Munoz is not a flight risk.

In IL, there has been a growing regard for the sanctity of basic human rights. The individual is now a valid “subject” of international law. The Phils. is in fact signatory to the UN Declaration of Human Rights as well as the Covenant on Civil and Political Rights.

XIII. THE S.S. LOTUS CASE – “collision case / extension of territory / concurrent jurisdiction” The French steamer Lotus collided w/ the Turkish vessel Boz-Kourt while both were in the high seas, w/c was split into 2, causing the death of 8 Turkish nationals. The survivors were rescued, and the Lotus arrived at Constantinople (Turkey) where the Lieutenant of The Lotus, Monsieur Demons, as well as the captain of the Boz-Kourt Hassan were arrested and tried for and convicted of involuntary manslaughter based on Turkish Law. France contends that the Turkish courts have no jurisdiction, and their assumption of jurisdiction was contrary to IL. France alleges that since the crime was committed in the vessel bearing its flag, it should have exclusive jurisdiction. The matter was submitted to the ICJ. There is no principle in IL that prohibits Turkey from assuming jurisdiction. In the absence of a prohibitive rule, the states have ample discretion. Thus, Turkey need not locate a principle of IL to justify the exercise of jurisdiction; it suffices that there is no prohibition.

Territoriality of criminal laws is not absolute and admits of certain exceptions. True that a ship forms an extension of the territory of its flag state, and what occurs therein is treated as if it took place in the state itself. In this case, considering that there are 2 ships involved, then the act (negligence) committed by Demons affects both the territory of France and Turkey – hence they may exercise concurrent jurisdiction.

III. New Rule: under Article 97 UNCLOS, no penal or administrative proceedings may be instituted against the master of a ship except before the judicial or administrative authorities of the (1) flag state, or (2) the state to w/c such person is a national.

Article 97. Penal jurisdiction in matters of collision or any other incident of navigation

1. In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national.

2. In disciplinary matters, the State which has issued a master's certificate or a certificate of competence or licence shall alone be competent after due legal process, to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them.

3. No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State.

IV. ATTORNEY GENERALOF ISRAEL v. EICHMANN – “genocide / hostis humani generis” Eichmann (one of Hitler’s high ranking generals) escaped to Argentina after the war and was abducted by Israeli agents. He was tried before an Israel Court for war crimes he allegedly committed during the Second World War – more particularly genocide against the Jewish Race. Does the Israel Court have jurisdiction even if the acts were committed elsewhere? Affirmative. When a person commits a crime against the law of nations such as

piracy (or in this case genocide), he becomes an enemy to all mankind – a hostis humani generis. He places himself beyond the protection of any state. It is in fact the moral duty of every state to enforce the natural right to punish such criminals guilty of the most extreme violations of the laws of nature so detrimental to the welfare of the international community.

Thus, while as a general rule, criminal jurisdiction is territorial, the jurisdiction of a state may extend to punishment of offenses against the laws of nations. Genocide has already been recognized as such under various conventions – such as the Charter of the Nuremberg Trial, the Convention on the Prevention of the Crime of Genocide (under the UN), and various affirmations of the UN General Assembly. The punishment of genocide is a matter if international concern condemned by all of the civilized world.

The same would apply to slavery, crimes against peace, and torture.

V. IN RE: REQUEST FOR EXTRADITION OF DOHERTY – “political exception / standards” Doherty was a member of the Provisional Irish Republican Army (rebel) w/c organized an ambush of a British Army convoy, causing the death of a soldier. He was arrested and charged, but was able to escape. He fled to the US. Now, UK seeks to extradite him; but the US court disallowed the same on the ground that the crime charged against Doherty was political in nature. The factors that have to be considered whether an act will qualify under the exception of political nature are: (1) the nature of the act, (2) the context in w/c it was committed, (3) status of the party committing the act, (4) nature of the organization, and (5) particularized circumstances. Applying the above standards, the court concluded that Doherty’s actions fell under the exception considering (a) the area where the act took place, (b) that there was no violation of the Geneva Convention and IL, and (c) the attack was not targeted towards civilians.

The extradition treaty between the US and UK was later amended to exclude from the “political nature” exception certain serious offenses such as: terrorism, hijacking and sabotage, cries against diplomats, hostage taking, and other heinous crimes such as murder, manslaughter, malicious assault, and certain offenses involving firearms, explosives, and damage to property.

VIII. Philippine Extradition Law (P.D. 1069)

A. "Extradition" is the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government.

B. 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.

C. 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.

D. 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 cases.

(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.

E. 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.

F. 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.

G. 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.

H. 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.

I. 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.

J. 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.

K. 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.

L. 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.

M. 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.

N. 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.

O. 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.

P. 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.

Q. 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.

R. 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;

S. 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.

IX. SEC. OF JUSTICE vs. LANTION – “extradition / notice & hearing” Herein respondent (Mark Jimenez) demands that he be furnished a copy of the extradition petition and its supporting papers pending the evaluation stage w/ the Sec. of Justice, to w/c the latter refuses. He claims that such refusal violates the right to notice and hearing. The implementing law, PD No. 1069 provides that the notice shall be given at the same time as the warrant of arrest. The same rule is likewise provided in the treaty to w/c both the US and the Philippines agree – and to w/c other countries have expressed the same interpretation. For the purpose of notice and hearing, a criminal procedure cannot be equated w/ an extradition proceeding and it follows that the evaluation process is not similar to preliminary investigation.

Also applying the balancing of interests test, considering that the case is only in its evaluation process, the nature of the right being claimed is nebulous in character and the degree of injury is minimal. The balance is thus tilted in favor of the State. Such procedural protection has not yet become due given the extent to w/c the defendant is to suffer loss or injury. DD: Notice and hearing for extradition cases is not required during the Executive Phase of the proceedings, but it is required in the Judicial Phase thereof. Considering that the petition is still under the evaluation of the Secretary of Justice, then it is still in the Executive Phase – hence no notice and hearing is yet required.

X. SECRETARY OF JUSTICE v. MUÑOZ – “provisional arrest / substantial compliance w/ requirements.” Muñoz was charged before a Hong Kong court for 7 counts of bribery and 7 counts of conspiracy to defraud. The HK Court issued a warrant for his arrest but he fled to the Phils. The Justice Department of HK requested the DOJ for provisional arrest; the latter thus successfully procured an Order of Provisional Arrest from the RTC Manila. Thereafter, a verified petition for extradition was filed by the HK Justice Department. Muñoz assails the validity of the provisional arrest, alleging that he was detained longer than the 20-day period under PD No. 1069, that the offense charged against him is not punishable under our laws (dual-criminality rule), and that the request and documents in support of the request were not verified and were sent though fax machine. His contentions are all untenable.

First, whether the dual criminality rule was complied with is a decision for the court where the extradition petition is filed. The RTC has yet to rule on the same, making his petition premature. There was also urgency in the request, considering the gravity of the offense charged and the capacity of the extraditee to flee or destroy evidence. This in fact is the purpose of provisional arrest. Also, the request for provisional arrest and its accompanying documents need not be verified; what has to be verified is the petition for extradition. The request for provisional arrest also need not be sent by official diplomat; that requirement also applies to the petition for extradition. Nonetheless, the HK Justice Department is the

authorized official to request for the same. There was also factual basis for the finding of the RTC of probable cause. All summed up, there was substantial compliance w/ all legal requirements; the provisional arrest is therefore valid.

RODRIGUEZ VS RTC OF MANILA WALA

XI. MONTREAL CONVENTION of 1981 • unlawful acts against the safety of civil aviation jeopardize the safety of persons and

property, seriously affect the operation of air services, and undermine the confidence of the peoples of the world in the safety of civil aviation.

Article 8: Article 8 1. The offences shall be deemed to be included as extraditable offences in any extradition treaty existing between Contracting States. Contracting States undertake to include the offences as extraditable offences in every extradition treaty to be concluded between them. 2. If a Contracting State which makes extradition conditional on the existence of a treaty receives a request for extradition from another Contracting State with which it has no extradition treaty, it may at its option consider this Convention as the legal basis for extradition in respect of the offences. Extradition shall be subject to the other conditions provided by the law of the requested State.

XV. EXTRATERRITORIAL JURISDICTION & THE US ANTITRUST LAWS – The discussion revolved primarily on the exercise of extraterritorial jurisdiction, in this case, for the purpose of applying the US anti-trust laws. The following are salient findings and conclusions elucidated in the article:

§ The general rule regarding jurisdiction is territoriality; that a state is competent to punish crimes committed w/in its own territory. This, however, was never meant to be an absolute rule. There may be extra-territorial jurisdiction, but this is subject to the principles of IL, and there must be limits and underlying justifications for its exercise, lest it be subject to abuse. § Even if an act was lawful where it was done, it may still be made unlawful in another jurisdiction – especially if there is prejudice to the safety and interests of the latter. But the extra-territorial exercise of such jurisdiction must not be permitted to extend in such a way as to amount to interference w/ the affairs of another sovereign state, in w/c case, it amounts to abuse. § The principle of nationality – IL permits a state to claim jurisdiction over its nationals (natural or juridical) w/o territorial limit. With regard to corporations, the courts can apply not only the place of incorporation test but also other tests such as control test to determine nationality and activities. § The passive territoriality principle – a state may claim to punish aliens for offenses committed abroad to the injury of its own nationals. This is also known as the “protection principle.” This is the most questionable of all grounds – considering that when a person resides in another territory, he must then seek redress based on the laws of that place, and not from the laws of his state. § The security principle – a state may exercise extraterritorial jurisdiction over crimes directed against its security, territorial integrity, credit, or interests. This is reasonable considering that most states do not punish persons for offenses directed against other states. But this rule must be limited to prevent abuse; the Harvard draft code proposes that it should not cover acts done under cover of a liberty guaranteed under local law. § The universality principle – the suppression of crime is an interest common to all states. This rule is specifically applicable to such crimes as piracy, where the offender is deemed an enemy to all mankind – a hostis humani generis

§ Extension of the territorial principle – The offense is deemed committed w/in a state’s territory when one of its constituent elements, more so its effects, take place there. This applies in the following cases: (1) the act was commenced w/in the state but consummated in another state (subjective principle), or (2) the act was commenced in another state but consummated w/in the territory of the subject state (objective principle). This is in fact an exercise not necessarily of extraterritorial jurisdiction, but of territorial jurisdiction – except extended. The objective principle is said to apply where the act produces effects to the territory of the state, but such “effects” must be limited to only those w/c are a direct consequence of the act (proximate cause). Intent is immaterial.