RP-SPAIN TREATY

TRANSFER OF SENTENCED PERSONS AGREEMENT

(TSPA)

ORDER OF PRESENTATIONI . BACKGROUND OF THE TREATYII. SALIENT PROVISIONS OF THE TREATYIII. ISSUES/CONCERNS IV. PURPOSE/OBJECTIVE OF PRISONER

SWAPSV. HUMANITARIAN/MORAL GROUNDSVI. THE CASE AND 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 authority;

Background 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;

Salient Features of the Treaty

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;

ProceduresRequest 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 - PhilippinesMinistry of Justice - Kingdom of Spain

Decision - shall be notified without delay to the other State without any need for stating the grounds thereof

JurisdictionJurisdiction: The sentencing State shall

have exclusive jurisdiction in respect of proceedings of anykind the purpose of which is to review the judgment.

Continued Enforcement1. 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; andc) shall not convert the sentence or deprivation of

liberty into pecuniary sanction.

Pardon, Amnesty, or CommutationOnly 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 Person1. 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 TerminationEffective - 30 days after written notification

to other partyDuration - IndefiniteTermination - anytime effective on the 180th

day after date of receipt of written notice of termination from either contracting State party.

ISSUES / CONCERNS

Social / Humanitarian IssueFamilies 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 IssueRP 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 IssuePublic 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 IssuePossible embarrassment with other

contracting State and international community when the action of the Department of Justice might be temporarily restrained by the SC

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/ObjectiveThe 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” Larrañaga can be incarcerated in Spain through the Republic of the Philippines-Kingdom of Spain Treaty on the Transfer of Sentenced Persons (RP-Spain TSPA).

Larrañaga, 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 Larrañaga 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 department’s sudden approval of the request of Larrañaga.

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, Larrañaga 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, Larrañaga is the first Spanish prisoner to be transferred in Spain from the Philippines.

Spain’s requestDepartment of Justice (DOJ) received a

request from the Department of Foreign Affairs (DFA) representing the Embassy of Spain for Larranaga’s transfer to Spanish prison.

“The DOJ is requested to consider the transfer (Larrañaga) 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, Larrañaga 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.

Larranaga’s citizenshipThe Spanish Embassy submitted the Birth Certificate

of Larrañaga 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 Larrañaga 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.

Larrañaga 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 so-called 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. It’s not a one-way street in the Transfer of Sentenced Persons Agreement. It’s merely a transfer. It doesn’t mean pardon,” Romulo told a news conference.

Romulo referred to the case of Francisco “Paco” Larrañaga and clarified it does not mean a pardon.Larrañaga is said to be the great grandson of the late President Sergio Osmeña 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 Larrañaga.

Thelma Chiong, mother of the victims, said she was shocked over the justice department’s sudden approval of the request of Larrañaga.

Faller also said the Chiong family has the right to appeal on Larrañaga’s 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” Larrañaga 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 Larrañaga 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 Larrañaga might enjoy many benefits in Spain and might attain his freedom once he is there.

“Once in Spain, we cannot stop Larrañaga 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 Larrañaga’s 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 Larrañaga 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 Larrañaga to Spain. The family led by matriarch Thelma Chiong had blamed Malacañang and Santiago for intervening

with the judiciary in the deportation of Larrañaga, a Spaniard convicted in the rape slay of her daughters.

“I don’t know because I was never approached by anybody on behalf of Larrañaga or even Malacañang,” Santiago said.

“I was just requested to prioritize the treaty in time for the President’s (Arroyo’s) 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.

“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,” Santiago said.

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.