THE CASE AND THE TREATY

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.Larrañagais 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.

8. 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.

9. 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

10. 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.

11. 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.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.Santiagostressed 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.

12. 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.