RP-SPAIN TREATY

1. RP-SPAIN TREATY TRANSFER OF SENTENCED PERSONS AGREEMENT (TSPA)

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

3. 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 • authority;

4. 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;

5. 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;

6. 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;

7. 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

8. 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;

9. 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

10. Jurisdiction • Jurisdiction: The sentencing State shall have exclusive jurisdiction in respect of proceedings of anykind the purpose of which is to review the judgment.

11. 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.

12. 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.

13. 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

14. 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.

15. ISSUES / CONCERNS

16. 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.

17. 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.

18. 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.

19. 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

20. Humanitarian Purposes

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. 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 MarijoyChiong 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.

27. 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.Thetwo 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.

28. Spain’s request Department 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.

29. 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.

30. Larranaga’s citizenship The 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. Larrañaga is said to be the great grandson of the late President Sergio Osmeña Sr.

31. DOJ Position This treaty was ratified by the Senate several years ago,bythe 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: “Pactasuntservanda,” 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.

32. 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. 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.

33. Victim’s family position Thelma Chiong, mother of the victims, said she was shocked over the justice department’s sudden approval of the request of Larrañaga. The Chiong family has the right to appeal on Larrañaga’s transfer to Spain. “They can address their appeal, to DOJ and state their reasons. Initially, they brought up the issue on indemnity for damages but Larranaga already deposited the Php 750k with the Court.

34. Congress’ reaction 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

35. Partylist position Party-list lawmaker, Gabriela Rep. LuzvimindaIlagan, 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.

36. 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. 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.Santiagosuggested a public hearing should be made on any petition invoking the TSPA to prevent controversies.Shesaid 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. “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. 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. 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.

37. Group’s Ruling: • No. The victims family can not stop the prisoner transfer as there is no provision in the treaty that allows prior consultation with the victim’s family before transfer of prisoner. • The request for transfer of Larranaga complied with the requirements of the treaty. • Any IRR that may be issued by RP in relation to the treaty would require concurrence or agreement by Spain through exchange of notes. • Any recommendation as a result of Congressional investigation will have to be addressed to the Executive Department who in turn will convey this through exchange of notes. • The fear that RP might be caught in an embarassing situation in case the prisoner files a complaint with an International Tribunal like ICJ on ground of human rights abuse is unfounded since the complaint may not prosper as only States can be parties in such tribunal. Both states obviously will not go to ICJ as there is a bilateral treaty.