I. Extradition (AM 22-03-29-SC)

Exceptions to the Exception:

• Attentat clause - murder of the Head of a foreign Government or of a member of his family, should not be considered a political crime. Although the attentat clause originated in Belgium in 1856, it has since been widely adopted. [Oppenheim’s International Law, Vol. 1 Peace (9th Ed.), 2008, p. 969]
• Article 7 of the Genocide Convention 1948 provides that the crime of genocide shall not be considered a political crime for the purpose of avoiding extradition in accordance with laws and treaties in force. [Oppenheim’s International Law, Vol. 1 Peace (9th Ed.), 2008, p. 970]

Principle of Specialty

A condition of extradition that the surrendered individual shall be tried and punished for those crimes exclusively for which his extradition has been asked and granted, subject to exceptions provided by the applicable treaty, such as the requested state's consent. [Oppenheim’s International Law, Vol. 1 Peace (9th Ed.), 2008, p. 961]

Who may be Extradited

In principle, any individual, whether he is a national of the prosecuting state, or of the state which is required to extradite him, or of a third state, may be extradited. [Oppenheim’s International Law, Vol. 1 Peace (9th Ed.), 2008, p. 955]

Principle of Double Criminality

According to this, extradition is only granted in respect of a deed which is a crime according to the law of the state which is asked to extradite, as well as of the state which demands extradition although not necessarily a crime of the same name in each, so long as there is a substantial similarity between the offences in each state. This is usually included in extradition treaties. [Oppenheim’s International Law, Vol. 1 Peace (9th Ed.), 2008, p. 958]

Extradition for a crime before treaty effectivity

A party to an extradition treaty may ask the other party to extradite a person for a crime committed before the effectivity of a treaty. It does not violate the prohibition against ex post facto laws. The constitutional prohibition applies to penal laws only. An extradition treaty is not a penal law. (Wright v. CA, G.R. No. 113213, Aug. 15, 1994).

Notice and Hearing

A person does not have the right to notice and hearing during the evaluation stage of the extradition process. Extradition is a proceeding sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused guaranteed by the Bill of Rights. The process of extradition does not involve the determination of the guilt or innocence of an accused. There is no deprivation of the right to due process. (Secretary of Justice v. Lantion, G.R. No. 139465, Nov. 12, 2001, resolution on reconsideration).

Right to Bail

An extraditee should not be deprived of his right to apply for bail, provided that a certain standard for the grant is satisfactorily met. The standard of proof required in granting or denying bail in extradition cases is clear and convincing evidence that the extraditee is not a flight risk and will abide with the orders of the extradition court. (Government of Hong Kong v. Olalia, Jr., G.R. No.153675, Apr. 19, 2007).

If bail can be granted in deportation proceedings, there is no justification not to allow it for extradition because both are administrative proceedings where the innocence or guilt of the parties is not in issue. (Government of Hong Kong v. Olalia, Jr., G.R. No.153675, Apr. 19, 2007).

Bail in Extradition Cases

Our extradition law does not provide for the grant of bail to an extraditee. There is no provision prohibiting him or her from filing a motion for bail, a right to due process under the Constitution.

However, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal process. A potential extraditee may be subject to arrest, to a prolonged restraint of liberty, and forced to transfer to the demanding state following the proceedings.

The standard used in granting bail in extradition cases is “clear and convincing evidence.” This standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence.

The potential extraditee must prove by “clear and convincing evidence” that :

• he is not a flight risk and will abide with all the orders and processes of the extradition court, and
• that there exist special, humanitarian, and compelling reasons for him to be released on bail. (Government of Hong Kong v. Olalia, Jr., G.R. No.153675, April 19, 2007)