Rules and Regulations to Implement the Treaty on the Transfer of Sentenced Persons Between R.P. and Spain ( DOJ Circular No. 15-09 )
March 20, 2009
March 20, 2009
DOJ CIRCULAR NO. 15-09
RULES AND REGULATIONS TO IMPLEMENT THE TREATY ON THE TRANSFER OF SENTENCED PERSONS BETWEEN THE REPUBLIC OF THE PHILIPPINES AND THE KINGDOM OF SPAIN
WHEREAS, the Government of the Republic of the Philippines has concluded the Treaty on the Transfer of Sentenced Persons with the Government of the Kingdom of Spain;
WHEREAS, the Treaty aims to ensure the effective rehabilitation of Filipinos serving sentence in Spain as well as Spanish nationals serving sentence in the Philippines as they will be afforded the opportunity to serve their sentences in their country of nationality;
WHEREAS, in its Resolution No. 39, adopted on November 26, 2007, the Senate of the Fourteenth Congress of the Republic of the Philippines has given its concurrence to the Treaty;
NOW, THEREFORE, being the Central Authority for the Philippines in the implementation of the Treaty, and pursuant to existing laws, the following rules and regulations relative to the implementation of the Treaty on the Transfer of Sentenced Persons between the Government of the Republic of the Philippines and the Government of the Kingdom of Spain are hereby promulgated: cDAISC
I. Preliminary Provisions
SECTION 1. Definition of Terms. — As used in this Implementing Rules and Regulations, the following terms shall mean:
(a) "Administering State" means the State in which the sentenced was imposed on the person who may be subject to transfer;
(b) "Central Authority" means the Department of Justice for the Republic of the Philippines and the Ministry of Justice for the Kingdom of Spain;
(c) "Department" means the Philippine Department of Justice;
(f) n "Minor" means a person under the age of eighteen (18);
(g) "Secretary" means the Secretary of the Department of Justice or his or her duly designated representative;
(h) "Sentence" means any punishment or measure involving deprivation of liberty ordered by a court of the sentencing State on account of a criminal offense; ETDaIC
(i) "Sentenced Person" means the person on whom a punishment or measure involving deprivation of liberty has been imposed on account of a criminal offense;
(k) n "Sentencing State" means the State in which the sentence was imposed on the person who may be subject to transfer;
(lj) n "Treaty" means the Treaty on the Transfer of Sentenced Persons between the Republic of the Philippines and the Kingdom of Spain;
SECTION 2. Application of the Treaty. — The Treaty shall apply to the enforcement of sentences either before or after its entry into force. cHECAS
SECTION 3. General Principles. —
a. Punishment or measures involving deprivation of liberty imposed in Spain on nationals of the Philippines may be served in the penal establishments of the Philippines or under the supervision of its authorities.
b. Punishment or measures involving deprivation of liberty imposed in the Philippines on nationals of Spain may be served in the penal establishments of Spain or under the supervision of its authorities.
c. Transfer may be requested either by the sentencing State or administering State.
SECTION 4. Conditions for Transfer. — Any request for transfer under the Treaty shall be subject to the following conditions: HSDIaC
1. 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;
2. The sentenced person is a national of the administering State at the time of the request for transfer;
3. The judgment in respect of the acts or omissions which gave rise to the sentence imposed is final and no other legal proceedings are pending against the sentenced person in the sentencing State;
4. The transfer is consented to by the sentencing State, administering State and sentenced person or, in the event of incapacity, by his or her legal representative;
5. The part of the sentence still to be served at the time of the receipt of the request for transfer by the administering State is at least one (1) year. In exceptional cases, as determined by both the sentencing and administering States, a request may be accepted even if part of the sentence still to be served is less than one (1) year; and
6. The sentenced person has satisfied payment of fines, court costs, civil indemnities and/or pecuniary sanctions of all kinds for which he or she 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 person has been declared insolvent.
SECTION 5. Nationality of the Sentenced Person. — The definition of nationality, whether the term refers to citizenship or habitual residence, shall be determined by the administering State and in accordance with its laws.
SECTION 6. Consent of the Sentenced Person. —
a. The desire of the sentenced person to be transferred must be expressly stated. The sentencing State must make it possible for the administering State, if it so requests, to verify and make sure that the sentenced person is aware of the legal consequences involved in the transfer, and his or her consent is voluntarily given. ECSHID
b. The manner of expressing consent shall be governed by the law of the sentencing State.
SECTION 7. Central Authorities. —
a. The Central Authority for the Republic of the Philippines shall be the Department of Justice. The Central Authority for the Kingdom of Spain shall be the Ministry of Justice. Either State may change its Central Authority in which case it shall duly notify the other State of the change.
b. Requests for transfer and replies shall be made in writing.
c. The request for transfer and the reply to such request shall be transmitted through diplomatic channels. All other communications shall be conveyed directly to the Central Authority of either State. HScDIC
d. Decisions taken by a State with a view to executing the Treaty shall be notified without delay to the other State without any need for stating the grounds therefor.
SECTION 8. Request for Transfer. — The sentenced person may make his or her request for transfer to the sentencing State or administering State.
When either State receives a request for transfer from a sentenced person, that State shall, as soon as possible, notify the other State of the receipt of such request.
SECTION 9. Languages. — All documents submitted in accordance with the Treaty shall be in the Spanish and English languages.
SECTION 10. Preliminary Information. — Upon request, the sentencing State shall inform the administering State of:
a. the name, date and place of birth of the sentenced person;
b. a statement of the facts upon which the sentence was based; and
c. the duration and dates of commencement and termination of the sentence or deprivation of liberty imposed.
II. The Philippines as the Sentencing State
SECTION 11. Application; By Whom Made; Requirements. —
a. The sentenced person, or in case of his or her incapacity, his or her duly authorized representative, may file the application for transfer directly with Secretary, or with the Spanish Embassy or Consulate in the Philippines. In the latter case, the Embassy or Consular official concerned shall forward the application to the Secretary. The application for transfer shall set forth the following:
i. complete name (first name, middle name, surname) and aliases, if any of the sentenced person; if the application is filed by the duly authorized representative of the sentenced person, the latter must likewise set forth his or her complete name and the reason for filing the application on behalf of the sentenced person;
ii. date and place of birth;
iii. nationality;
iv. place of confinement; and
v. offense for which he or she was sentenced.
b. The application for transfer shall be supported by the following documents: CIDaTc
i. certified true copy of the judgment;
ii. Certification from the court which rendered the judgment of conviction that the judgment is final and executory;
iii. Certification from the Office keeping the sentenced person in confinement as to the sentence imposed, date of commencement of the service of sentence, time already served and time still to be served; and
iv. Certification from the court concerned that the fines, court costs, civil indemnities and/or pecuniary sanctions of all kinds for which the sentenced person is liable under the terms of the sentence have been fully paid or satisfied, or that sufficient security has been provided to ensure payment thereof, unless the sentenced person has been declared insolvent.
SECTION 12. Application by a Minor. — Where the sentenced person is a minor, the application for transfer shall be filed by his or her parent/s or guardian. EASCDH
SECTION 13. Nationality; Double Criminality. —
a. To establish the nationality of the sentenced person and that the acts or omissions on account of which the sentence has been imposed are likewise punishable in Spain, the Secretary shall request the Central Authority of Spain for the following documents:
i) a statement or document indicating that the sentenced person is a national of Spain; and
ii) a copy of the relevant legal provisions of Spain which show that the acts or omissions on account of which the sentence has been imposed also constitute a criminal offense in Spain.
b. The Secretary may request the Central Authority of Spain for additional information or documents which he or she may deem necessary in making a proper determination of the request for transfer.
SECTION 14. Verification of Consent by the Secretary. — The Secretary or his representative/s shall take steps to verify the consent of the sentenced person to that such consent is given voluntarily and with full knowledge of the consequences thereof.
SECTION 15. Verification of Consent by Spanish Embassy/Consular Official/s in the Philippines. — Upon request, the Department, in coordination with the Department of Foreign Affairs, shall afford Spain an opportunity to verify, through its Embassy or Consular official/s in the country, that the consent of the sentenced person for his or her transfer is given voluntarily and with full knowledge of the consequences of such transfer.
SECTION 16. Transmittal of the Request for Transfer to the Department of Foreign Affairs. — If the Secretary finds that the application is complete in form and is accompanied by all the required documents, he or she shall prepare the request for transfer and forward such request to the Department of Foreign Affairs for transmittal to the Central Authority of Spain. The sentenced person or his or her duly authorized representative shall be informed of such determination.
If the Secretary finds that the application does not meet the requirements of the Treaty, the Secretary shall so inform the sentenced person applying for transfer or his or her duly authorized representative.
SECTION 17. Supporting Documents. — The request for transfer shall be supported by the following documents:
a) a certified true copy of the judgment, indicating that it is final; HEScID
b) a copy of the relevant legal provisions;
c) a statement indicating the duration of the sentence or deprivation of liberty, the time already served and the time that remains to be served including penitentiary reductions granted to the sentenced person; and
d) a document containing the consent of the sentenced person to the transfer.
III. The Philippines as the Administering State
SECTION 18. Receipt of Request. — The Department of Foreign Affairs shall immediately forward the request for transfer to the Department of Justice. CSHcDT
Upon receipt of the request for transfer from the Department of Foreign Affairs, the Secretary shall make a determination whether the request meets the requirements of the Treaty.
SECTION 19. Nationality; Double Criminality. —
a. To establish that the sentenced person requesting transfer is a Filipino national and that the acts or omissions on account of which the sentence has been imposed in Spain are likewise punishable in the Philippines, the Secretary shall provide the Central Authority of Spain with the following documents:
i) a statement or document indicating that the sentenced person is a Filipino national; and
ii) a copy of the relevant legal provisions of the Philippines which show that the acts or omissions on account of which the sentence has been imposed also constitute a criminal offense in the Philippines.
SECTION 20. Verification of Consent. — Before giving his or her consent to the transfer, the Secretary, through the Philippine Embassy or Consular officials in Spain, shall take steps to verify the consent of the sentenced Filipino national requesting his or her transfer to the country to ensure that the same is voluntarily given and with full knowledge of the consequences thereof.
The result of the verification made by the Philippine Embassy or Consular official/s in Spain shall be forwarded by the Department of Foreign Affairs to the Department of Justice.
IV. Transfer Arrangements
SECTION 21. Arrangements; Costs of Transfer. —
a. The handing over of the sentenced person by the sentencing State to the administering State shall be at a mutually agreed time and place. DAaEIc
b. 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.
V. Post-Transfer Provisions
SECTION 22. Continued Enforcement. —
a. Once the transfer has been carried out, the enforcement of the sentence shall be governed by the law of the administering State.
b. When enforcing the sentence, the administering State:
i. shall be bound by the duration of the sentence or measure of deprivation of liberty;
ii. shall be bound by the findings of facts indicated in the judgment; and ATDHSC
iii. shall not convert the sentence or deprivation of liberty into pecuniary sanction.
SECTION 23. Transfer of a Sentenced Person on Parole. — A sentenced person who is on parole shall continue to serve such sentence after his or her transfer in accordance with the law of the administering State and under the supervision of the authorities of that State.
SECTION 24. Pardon, Amnesty or Commutation. — Only the sentencing State may, pursuant to its Constitution and laws, grant pardon, amnesty or commutation of the sentence. The administering State may, however, request the sentencing State to grant pardon, amnesty or commutation of the sentence by submitting an application with sufficient grounds.
SECTION 25. Retention of Jurisdiction. — The sentencing State shall have exclusive jurisdiction in respect of proceedings of any kind the purpose of which is to review the judgment of conviction.
SECTION 26. Termination of Enforcement. — The administering State shall terminate enforcement of the sentence as soon as it is informed by the sentencing State of any decision or measure as a result of which the sentence ceases to be enforceable.
SECTION 27. Information on Enforcement. — The administering State shall inform the sentencing State:
a. When the enforcement of the sentence has been completed;
b. In the event of escape by the sentenced person; or
c. Any matter related to the Treaty that the sentencing State may request.
SECTION 28. Ne Bis In Idem. — A sentenced person transferred under the Treaty may not be arrested, committed for trial or convicted in the administering State for the same offense/s for which he or she was sentenced.
SECTION 29. Principle of Specialty. — In order that the sentenced person may be judged, convicted or subjected to any restriction of his or her personal liberty on account of previous acts that are different from those which gave rise to his or her transfer, action shall be taken in accordance with the terms provided under the Extradition Treaty between the Philippines and Spain.
VI. Applicability of Philippine Laws
SECTION 30. Applicability of Philippine Laws. — Unless the Treaty provides otherwise, the laws, rules and regulations of the Philippines pertaining to prisoners shall, whenever appropriate, apply to a sentenced person falling under the coverage of the Treaty.
VII. Miscellaneous Provisions
SECTION 31. Consular Information. — The sentenced person must be informed by the diplomatic or consular officials of his or her country about the steps taken in the administering State with a view to the application of the relevant paragraphs of the Treaty, as well as of the decisions taken by either of the States in respect of his or her request for transfer. The States shall provide any information requested by the diplomatic or consular officials.
SECTION 32. Consultation. — The Central Authorities of the Contracting States may consult with each other to promote the most effective use of this Treaty. The Central Authorities may also agree on such practical measures as may be necessary to facilitate the implementation of the Treaty.
SECTION 33. Settlement of Disputes. — Any dispute arising from the interpretation or application of the Treaty shall be settled through diplomatic channels. HcSDIE
SECTION 34. Separability Clause. — If any provision of this Implementing Rules and Regulations is held invalid or unconstitutional, any other provision not so affected shall continue to be in full force and effect.
SECTION 35. Effectivity. — This Implementing Rules and Regulations shall take effect upon its publication in a newspaper of general circulation in the Philippines.
Done in the City of Manila, this __th day of ___, in the year of Our Lord, 2009.
(SGD.) RAUL M. GONZALESSecretary
Published in The Philippine Star on April 17, 2009.
n Note from the Publisher: Copied verbatim from documents obtained directly from the Department of Justice.