US Chattin v Mexico

Reports of International Arbitral Awards, Vol IV; 1927


In this claim before the General Claims Commission, the United States seeks indemnity on behalf of B.E. Chattin. Action came after Chattin, an employee for the Ferrocarril Sud-Pacifico de Mexico (Southern Pacific Railroad Company of Mexico) and who performed his duties in the State of Sinaloa, was arrested on a charge of embezzlement. Imprisoned, Chattin was imprisoned. He was never properly informed of the charges against him. Additionally, he was given the opportunity to testify only after 6 months of incarceration. Finally, the hearings for his case lasted only 5 minutes in actuality, thus depriving him of his ability to properly defend himself. Chattin now posits a denial of justice on his part by the Government of Mexico.

ISSUE: Was Chattin denied justice by the government of the United Mexican States?

RULING: YES. Under International Law, a direct denial of justice occurs when there is convincing evidence showing the judicial acts of a country are tainted with outrage, bad faith, wilful neglect of duty, or manifestly insufficient governmental action. In this case, Chattin was deprived of speedy proceedings by the court with jurisdiction; he was only given a chance to testify 6 months after his arrest. Neither were such proceedings properly conducted, as no attempts to further investigate other involved parties were made. Finally, Chattin was not given the opportunity to actually freely express himself. Thus, due to this apparent lack of seriousness as well as the clear indications of neglect by the court with jurisdiction, a denial of justice occurred. 

Noyes Case: US v Panama

Reports of International Arbitral Awards, Vol VI; May 22, 1933

FACTS: In this case a claim is made against the Republic of Panama by the United States of America on behalf of Walter A. Noyes, who was born, and has ever remained, an American citizen. The sum of $1,683 is claimed as an indemnity for the personal injuries and property losses sustained by Mr. Noyes through the attacks made upon him on June 19, 1927, in, and in the neighborhood of, the village of Juan Diaz, situated not far from Panama City. The claim is based upon an alleged failure to provide to the claimant adequate police protection, to exercise due diligence in the maintenance of order and to take adequate measures to apprehend and punish the aggressors.

At about 3:00 p.m. the claimant passed through the village in his automobile, on his return to Panama City from a trip to the Tapia River bridge. In the center of the village a crowd blocked the road and Mr. Noyes stopped and sounded his horn, whereupon the crowd slowly opened. Whilst he was progressing very slowly through it, he had to stop again, because somebody lurched against the car and fell upon the running-board. Thereupon members of the crowd smashed the windows of the car and attacked Mr. Noyes, who was stabbed in the wrist and hurt by fragments of glass. A police officer who had been giving orders that gangway should be made for the automobile, but who had not before been able to reach the car, then sprang upon the running board and remained there, protecting the claimant and urging him to get away as quickly as possible. He remained with Mr. Noyes, until the latter had got clear of the crowd. At some distance from Juan Diaz the claimant was further attacked by members of the same crowd, who pursued him in a bus and who forced him to drive his car off the road and into a ditch. He was then rescued by General Pretelt who, having come from the opposite direction, had, after reaching the plaza of the village, returned upon his way in order to protect Mr. Noyes against his pursuers.

ISSUE: Is Republic of Panama liable for injuries sustained by the American National from an unruly and intoxicated crowd in a small village?

RULING: NO. It having been shown that the local police force of three members was reinforced when disorder was apprehended, that a policeman and the police chief himself tried actively to protect Noyes when he was attacked, and that it was not possible to pinpoint the culprits in view of the tumultuous nature of the incident. The mere fact that an alien has suffered at the hands of private persons an aggression, which could have been averted by the presence of a sufficient police force on the spot, does not make a government liable for damages under international law. Special circumstances must be shown circumstances from which the responsibility of the authorities arises: either their behavior in connection with the particular occurrence, or a general failure to comply with their duty to maintain order, to prevent crimes or to prosecute and punish criminals. There were no such circumstances in the present case. Accordingly a lack of protection has not been established. The claim is also based upon the failure of the Panamanian authorities to prosecute the perpetrators of the aggressions upon the claimant. It is a fact that no prosecutions were instituted. Taking into account however the conditions under which the events had taken place, the Commission cannot conclude liability of the Panamanian Government in this respect. The claim is disallowed



Youmans Case: US v Mexico

Opinions of the Commission; November 23, 1926


Claim for damages in the amount of $50,000.00 is made in this case by the United States of America against the United Mexican States in behalf of Thomas H. Youmans, the son of Henry Youmans, an American citizen, who, together with two other Americans, John A. Connelly and George Arnold, was killed at the hands of a mob in Mexico. Henry Youmans, Connelly, and Arnold were employees engaged in the construction of the San Hilario Tunnel in the town of Angangueo in the State of Michoacán, Mexico. The construction was being done by Mexican laborers resident in the town under the supervision of the Americans. On March 14, 1880, Connelly, the Managing Engineer in the construction, had a controversy with a laborer, Cayentano Medina, over a sum of money the latter insisted was due to him as wages. Connelly, however, ejected Medina from his house. Subsequently after, Medina, along with several companions began to throw stones at Connelly and approached him with a drawn machete. Connelly, trying to frighten the assailants, fired shots in the air and then went inside his house where Youmans and Arnold also reside. Medina and his companions attempted to enter, and Connelly thereupon fired at Medina wounding his legs. Soon, the house was surrounded by a threatening mob. Connelly undertook to surrender to police authorities but failed to do so as he was driven back to the house by the mob. Their employer then requested the Mayor to endeavor to protect the Americans, but he was unable to quiet the mob. The Mayor then ordered the Lieutenant of the Michoacan forces to quell the riot. However, the troops, upon arriving at the scene, instead of dispersing the mob, opened fire in the house, causing the death of Arnold. The mob renewed their attack against the Americans and set fire to the roof forcing Connelly and Youmans to leave, and as they did so, they were killed by the troops and members of the mob. Their bodies were dragged through the streets and left under the pile of stones by the side of the road so mutilated as scarcely to be recognizable.

ISSUE: Is the Mexican Government liable?

RULING: YES. The liability on the part of the Mexican Government was sustained by the evidence in the record. The record shows a lack of diligence in the punishment of the persons implicated in the crime. Citations have been made to evidence with respect to the participation of the soldiers in the killing of the three Americans. The judicial record also shows that some soldiers were arrested but were not sentenced. Evidence before the commission does not disclose whose weapons killed the Americans, but the participation of the soldiers with the members of the mob is established. With respect to the question of responsibility for the acts of soldiers there are citations in the Mexican Government's brief of extracts from a discussion of a subcommittee of the League of Nations Committee of Experts for the Progressive Codification of International Law. The passage quoted, which deals with the responsibility of a State for illegal acts of officials resulting in damages to foreigners, begins with a statement relative to the acts of an official accomplished "outside the scope of his competency, that is to say, if he has exceeded his powers." An illegal act of this kind, it is stated in the quotation, is one that cannot be imputed to the State. Apart from the question whether the acts of officials referred to in this discussion have any relation to the rule of international law with regard to responsibility for acts of soldiers, it seems clear that the passage to which particular attention is called in the Mexican Government's brief is concerned solely with the question of the authority of an officer as defined by domestic law to act for his Government with reference to some particular subject. Clearly it is not intended by the rule asserted to say that no wrongful act of an official acting in the discharge of duties entrusted to him can impose responsibility on a Government under international law because any such wrongful act must be considered to be "outside the scope of his competency.” Citation is also made in the Mexican brief to an opinion rendered by Umpire Lieber in which effect is evidently given to the well-recognized rule of international law that a Government is not responsible for malicious acts of soldiers committed in their private capacity. But the General Claims Commission do not consider that the participation of the soldiers in the murder at Angangueo can be regarded as acts of soldiers committed in their private capacity when it is clear that at the time of the commission of these acts the men were on duty under the immediate supervision and in the presence of a commanding officer. Soldiers inflicting personal injuries or committing wanton destruction or looting always act in disobedience of some rules laid down by superior authority. There could be no liability whatsoever for such misdeeds if the view were taken. The Commission therefore decides that the Government of the United Mexican States must pay to the Government of the United States of America the sum of 520,000.00 (twenty thousand dollars) without interest on behalf of Thomas H. Youmans.

Galvan Case: Mexico v US

Reports of International Arbitral Awards Vol IV; May 24, 1954.


On the morning of August 25, 1921, Galvan had a slight altercation with the son of Kondall who supplied drinking water to the workmen. Upon learning, Kondall was angered and proceeded to his house where he probably procured a pistol. When he returned to the workplace of Galvan, there is evidence that the latter, when he knew that Kondall was armed with a pistol, proceeded with a raised hammer in his hand toward the spot where Kondall and another man were standing, and that Kondall thereupon twice shot Galvan who died shortly thereafter. Kondall was immediately taken into custody by the local authorities and charged with murder. He was given a preliminary hearing before a justice of the peace at which several eyewitnesses of the shooting were examined. The accused was required to give a $25,000 as a bond for his appearance at its October, 1921 term. No indictment was returned against Kondall at that term of the court, but in the following March an indictment was found against him, charging him with the murder of Galvan, and trial was set for April 20, 1922. Subsequently the accused was admitted to bail in the sum of $5,000. Moreover, it is shown that the trial of Kondall was further continued at the instance of the State “because of a defaulting witness" and set for hearing at the term of court beginning on October 25, 1926, and still further continued at that term of court until April, 1927, on account of absence of material witnesses for the State. 6. The record contains an affidavit executed on November 24, 1925, by George C. Westervelt, District Attorney for the Counties of Nueces, Kleberg, Kenedy, Willacy and Cameron, Texas. It is stated in this affidavit that several subpoenas were issued for the appearance at the several terms of court of Louis F. Johnston, an eye witness to the shooting of Galvân. and that the State could not safely and successfully go to trial without the production of this witness. It is alleged on behalf of Mexico that there was an unnecessary delay in the prosecution of a person charged with a capital crime, and that under international law the United States should make compensation. 

ISSUE: Was there a failure of compliance with the general principle of international law requiring authorities to take proper measures to apprehend and punish a person who appears to be guilty of a crime against an alien?

RULING: YES. At the trial testimony, it seems to be obvious that a grand jury could not properly fail to return an indictment for murder against Kondall. An indictment was found by a grand jury in March 1922. After that it is plain that the authorities failed to take the proper steps to try the accused. There is no satisfactory explanation of continuances of the proceedings from time to time. Justification for the failure to bring the accused to justice cannot be found on the ground stated in the affidavit made by the District Attorney as late as November 24, 1925, that a certain eye witness had not been located. There is no reason to suppose that the legal machinery of the state of Texas is so defective that in a case in which a preliminary trial reveals that there were at least five eye witnesses to the shooting of Galvan the authorities during a period of six years after the shooting found themselves unable to conduct a proper prosecution. If any such defect had existed it would not be an adequate defence to the claim presented by Mexico. If witnesses actually disappeared during the course of the long delay in the trial, then as argued by counsel for Mexico, that would be evidence of the evil incident to such delay. It may be observed that the argument on behalf of the United States appeared to be directed more to the question of the measure of damages than to a justification of the delay in the proceedings against the accused. Therefore, the Government of the United States of America shall pay to the Government of the United Mexican States on behalf of Salomé Lerma de Galvân the sum of $10,000 without interest.

Jane Case: US v Mexico

Reports of International Arbitral Awards Vol IV; Nov 16, 1925


This claim is presented by the Government of the United States of America on behalf of Jane Joynt Davies and Thomas W. Davies, mother and brother of the late Aubert J. Davies, who was murdered by a Mexican national on September 5, 1916, in the State of Lower California, Republic of Mexico.

In 1916, Aubert J. Davies was a resident of the State of Lower California, United Mexican States, where he and his brother. Thomas W. Davies, were interested in a stock ranch known as "El Topo" situated in the northern District of that State. On September 5, 1916, one Adrian Corona presented himself at what is known as the headquarters of the ranch and asked Aubert J. Davies for something to eat. The latter granted the request with pleasure and promptly and willingly provided him with food. After finishing the meal, Corona requested Davies to allow him to use his rifle saying that he wished to kill some crows which were perched on the top of a nearby tree. This request was likewise granted, but instead of shooting at the birds, Corona, after retreating a few steps, aimed the weapon in the direction of Aubert J. Davies, and without a word of warning of any kind, shot and instantly killed him. Immediately after the shooting Corona seized a horse belonging to Davies and fled. He was later apprehended and after trial by the Court and was sentenced to death. In view of the facts set forth, the United States of America, in behalf of Jane Joynt Davies and Thomas W. Davies, mother and brother of the late Aubert J. Davies, seeks indemnity from the United Mexican States in the sum of S25.000.00 United States currency or its equivalent, with interest.

ISSUE: Are they entitled to compensation?

RULING: NO. The provisions of the Article quoted exclude all ideaS of punishment. It is a question only of very natural measures of prevention for the purpose of preventing the insane person from causing further damage. But that same provision establishes different forms by means of which, according to circumstances, the authorities are able to comply with that duty of social protection. Neither the Article referred to nor the sentence of the Supreme Court of Lower California, establishes, as the American Agency appears to believe, that Corona must be forcibly confined in an asylum in expiation of the crime he committed unconsciously. The international duty of Mexico was fulfilled with the apprehension and trial of the accused and any failure or omission subsequent to the sentence which exempted him from criminal responsibility, even in the event of its being fully proven, would not involve the Mexican nation in any international responsibility. Those failures or omissions do not constitute a denial of justice such as that which results from those cases wherein, there exists a failure or omission punishable by law, the authorities of a country refuse to comply with their own legal provisions as interpreted by the courts. The Commission, therefore, considers and so decides that the claim of the United States of America on behalf of Jane Joynt Davies and Thomas W. Davies must be disallowed.

US (North American Dredging Co) v Mexico

Reports of International Arbitral Awards Vol. IV pp. 26-35; Mar 31, 1926


On November 23, 1912, the North American Dredging Company of Texas, an American corporation, entered into a contract with the Government of Mexico for dredging at the port of Salina Cruz. Article 18 of the subject contract states: “The contractor and all persons who, as employees or in any other capacity, may be engaged in the execution of the work under this contract either directly or indirectly, shall be considered as Mexicans in all matters, within the Republic of Mexico, concerning the execution of such work and the fulfillment of this contract. They shall not claim, nor they shall have, with regard to the interests and the business connected to this contract, any other rights or means to enforce the same than those granted by the laws of the Republic to Mexicans, nor shall they enjoy any other rights than those

established in favor of Mexicans. They are consequently deprived of any rights as aliens, and under no conditions shall the intervention of foreign diplomatic agents be permitted, in any matter related to this contract." This is known as the “Calvo clause.” The company, inconsistent with the Calvo clause, sought the aid of the American government instead of enforcing their claim in accordance with the laws of the Republic of Mexico.

ISSUE: Does the Calvo clause preclude a state from exercising its sovereign right to protect its citizens which may be found in a foreign state. 

RULING: NO.  The commission does not hesitate to declare that there exists no international rule prohibiting the sovereign right of a nation to protect its citizens abroad from being subject to any limitation whatsoever under any circum-stances. What Mexico has asked of the North American Dredging Company of Texas as a condition for awarding it the contract which it sought is, "If all of the means of enforcing your rights under this contract afforded by Mexican law, even against the Mexican Government itself, are wide open to you, as they are wide open to our own citizens, will you promise not to ignore them and not to call directly upon your own Government to intervene in your behalf in connexion with any controversy, small or large, but seek redress under the laws of Mexico through the authorities and tribunals furnished by Mexico for your protection?" and the claimant, by subscribing to this contract and seeking the benefits which were to accrue to him there-under, has answered, "I promise". Under the rules of international law may an alien lawfully make such a promise? The Commission holds that he may, but at the same time holds that he can not deprive the government of his nation of its undoubted right of applying international remedies to violations of international law committed to his damage. Such a government frequently has a larger interest in maintaining the principles of international law than in recovering damage for one of its citizens in a particular case, and manifestly such citizen can not by contract tie in this respect the hands of his Government. But while any attempt to so bind his Government is void, the Commission has not found any generally recognized rule of positive international law which would give to his Government the right to intervene to strike down a lawful contract, in the terms set forth in the

preceding paragraph 10, entered into by its citizen.

The Commission decides that the case as presented is not within its jurisdiction and the motion of the Mexican Agent to dismiss it is sustained and the case is hereby dismissed without prejudice to the claimant to pursue his remedies elsewhere or to seek remedies before this Commission for claims arising after the signing of the Treaty of September 8, 1923.

Harvey v Santiago

GR No: 82544 ; June 28, 1988


American petitioners Harvey and Sherman together with Dutch petitioner Elshout were Amon the 22 suspected alien pedophiles apprehended by CID agents. 17 of the 22 apprehended chose self deportation and left the country, one was released due to lack of evidence and one was not charged as a pedophile but for working without a working visa. Out of the 22, three chose deportation. An arrest warrant was issued against petitioners for violation of sections 37, 45 and 46 of the immigration act and section 69 of the Revised Administrative Code.

ISSUE: Can the Commissioner of Immigration issue a valid warrant of arrest?

RULING: YES. One of the requirements of a valid search or arrest warrant is that there must be probable cause. The arrest of petitioners was based on probable cause since there was a 3 month surveillance done which was evidenced by photographs. Even if the petitioners were not caught, the act does not make their arrest illegal. The probable cause requirement does not extend to deportation proceedings. The only requirement is that there be a specific charge against an alien intended to be arrested and deported after a fair hearing with assistance of a counsel and be proven with substantial evidence. The right to bail is a matter of discretion of the Commissioner of Immigration and since deportation is not a criminal proceeding, the right to bail cannot be invoked by the petitioners. 

Power to deport is an act of a state. It is an inherent power of a sovereign state to exclude aliens from its territory when it is proper for sled preservation or public interest. It is an exercise of police power against aliens that are considered injurious to public good and domestic tranquility of the citizens. The act of the Commissioner of Immigration to deport the subject aliens was proper to protect public interest especially children who need special protection from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development. 

Savarkar Case
Reports of International Arbitral Awards; Feb 24, 1911

The case concerned the escape of a British-Indian subject, Mr. Vinayak Damodar Savarkar, who was detained aboard a British commercial vessel harboured at Marseille while en route to India where he was to be tried for the abetment of murder. Mr. Savarkar swam ashore but was chased by crew and arrested by a brigadier of the French maritime gendarmerie. Acting under the mistaken belief that the escapee was a member of the crew, the brigadier brought him on board and turned him over to British agents. The next morning the ship left Marseille with Mr. Savarkar on board.
The French government did not approve of the manner in which Mr. Savarkar had been returned to British custody and demanded his restitution to France, on the grounds that his delivery to British authorities amounts to a defective extradition. The British government contended that, according to the arrangements made for the security of the prisoner while the ship was in port, the French authorities had been obliged to prevent his escape.
The two governments agreed to submit their dispute to arbitration.

Should the British Government have custody of Mr. Savarkar?

YES. The Tribunal found that all those agents who had taken part in the incident had demonstrated good faith. The Tribunal concluded that despite the irregularity committed in the arrest of Mr. Savarkar, such irregularity did not result in any obligation on the British government to restore Mr. Savarkar to the French government.

Secretary of Justice v Lantion
GR No 139465; Oct 17, 2000

On January 13, 1977, then President Ferdinand Marcos issued Presidential Decree No. 1069 “Prescribing the Procedure for the Extradition of Person Who Have Committed Crimes in a Foreign Country.” On November 13, 1994, then Secretary of Justice Franklin Drilon, representing the Government of the Republic of the Philippines, signed in Manila the “Extradition Treaty Between the Government of the Republic of the Philippines and the Government of the United States of America. The Senate expressed its concurrence in the ratification of said treaty. On June 18, 1999, the United States Government, through Department of Foreign Affairs U.S. Note Verbale No. 0522, requested the Philippine Government for the extradition of Mark Jimenez of private respondent, to the United States.

On the same day, petitioner designated and authorized a panel of attorneys to take charge of and handle the case. Pending the evaluation of the foretasted extradition documents, Mark Jiminez through counsel, wrote a letter to Justice Secretary requesting copies of the official extradition request from the U.S Government and that he be given ample time to comment on the request after he shall have received copies of the requested papers but the petitioner denied the request for the consistency of Article 7 of the RP-US Extradition Treaty stated in Article 7 that the Philippine Government must present the interests of the United States in any proceedings arising out of a request for extradition. On 6 August 1999, Jimenez filed with the RTC a petition against the Secretary of Justice, the Secretary of Foreign Affairs, and the Director of the National Bureau of Investigation, for mandamus; certiorari; and prohibition, with an application for the issuance of a temporary restraining order and a writ of preliminary injunction. The trial court ruled in favor of Jimenez.

The Secretary filed a petition for certiorari before the Supreme Court. On 18 January 2000 and by a vote of 9-6, the Supreme Court dismissed the petition and ordered the Justice Secretary to furnish Jimenez copies of the extradition request and its supporting papers and to grant him a reasonable period within which to file his comment with supporting evidence. 

Should the RP-US Extradition treaty be considered superior to the Constitution?

NO. The Constitution’s guarantee of the human rights of a person is always supreme, and takes precedence over treaty rights. As provided by the doctrine of incorporation, efforts must be made in order to harmonize the conflicting statutes. However in cases where it is irreconcilable then the municipal law must always be upheld.
Although international law has been made part of the law of the land it cannot be upheld as superior to our municipal law especially in our municipal sphere. With our state having the constitution as the highest law of the land, it cannot be considered inferior to treaties and statutes that are in conflict with it.

The convergence of petitioners' favorable action on the extradition request and the deprivation of private respondents liberty is easily comprehensible. We have ruled time and again that this Court's equity jurisdiction, which is aptly described as "justice outside legality," may be availed of only in the absence of, and never against, statutory law or judicial pronouncements. The constitutional issue in the case at bar does not even call for "justice outside legality," since private respondents due process rights, although not guaranteed by statute or by treaty, are protected by constitutional guarantees. We would not be true to the organic law of the land if we choose strict construction over guarantees against the deprivation of liberty. That would not be in keeping with the principles of democracy on which our Constitution is premised. Hence, petitioner is ordered to furnish private respondent copies of the extradition request and its supporting papers and to grant him a reasonable period within which to file his comment with supporting evidence

Belgium v Senegal
ICJ Judgment; July 20, 2012

Hissène Habré, currently a resident of Senegal, was the President of the Republic of Chad from 1982 until 1990. During that time, he established a brutal dictatorship which, by the bias of its political police, the Bureau of Documentation and Security (Direction de la Documentation et de la Sécurité (DDS)) caused the deaths of tens of thousands of individuals.
Proceedings have commenced and failed against him in the Republic of Chad, Senegal, and most recently in Belgium. The latter State issued an international arrest warrant for Habré in 2005 for charges of crimes against humanity, war crimes, torture and serious violations of international humanitarian law. The request was never complied with; the Court of Appeal of Dakar in Senegal held that Habré enjoyed immunity and it was incompetent to rule on the validity of the arrest warrant for a former Head of State. Belgium instituted proceedings before the International Court of Justice (ICJ) alleging that Senegal was in violation of its obligation to prosecute or extradite Habré under the Convention Against Torture.

Was Senegal in violation of its obligation to prosecute or extradite Habré under the Convention Against Torture?

YES, the ICJ ruled that Senegal was indeed in breach of its obligations under the Convention and should proceed without further delay to the prosecution of Habré. It cannot rely on its internal law or financial difficulties to evade the implementation of this obligation. The Court considers that Article 7(1) of the Convention Against Torture obliges the State concerned to submit the case to its competent authorities for the purpose of prosecution, irrespective of the existence of a prior request for the extradition of the suspect. This obligation may or may not result in the institution of proceedings, in light of the evidence before the authorities However, if the State in whose territory the suspect is present has received a request for extradition, it can relieve itself of its obligation to prosecute by acceding to that request. Extradition is an option offered to the State by the Convention, whereas prosecution is an international obligation under the Convention, the violation of which is a wrongful act engaging the responsibility of the State.

Although the prohibition of torture is a norm of jus cogens and customary international law, the obligation to prosecute alleged perpetrators of acts of torture under the Convention only applies to facts that have occurred after the entry into force of the Convention for the State concerned. Thus, Senegal’s’ obligation to prosecute does not apply to acts allegedly committed before the Convention entered into force for Senegal on 26 June 1987. Senegal’s duty to comply with its Convention obligations is not affected by the decision of the Court of Justice of ECOWAS nor can its failure to comply be justified by financial difficulties or its internal law . It is implicit in Article 7(1) that the obligation to prosecute must be implemented within a reasonable time, in a manner compatible with the object and purpose of the Convention. Therefore, having failed to adopt all measures necessary for the implementation of its obligation under Article 7(1) as soon as possible, in particular, once the first complaint had been filed in 2000, Senegal has breached and remains in breach of its obligations under Article 7(1) of the Convention Against Torture.

Chirskoff v Commission of Immigration
GR No L-3802; Oct 26, 1951

Chirskoff entered the Philippines on June 19, 1946 with a passport duly visaed by the United States Consul in Shanghai, for the purpose of making repairs on and taking delivery of certain vessels purchased by or in behalf of the Java China Trading Co., Ltd. The vessels having been repaired and dispatched to Shanghai, the petitioner remained behind and stayed for the reason, according to him, that he had "suffered an economic collapse and his return to Shanghai became impracticable."

Chirskoff obtained employment in a lumber concern in Bataan and later in a similar concern in Floridablanca, Pampanga. It was while working at the latter place that he was arrested by order of the Commissioner of Immigration on March 16, 1948, charged with aiding, helping and promoting "the final objective of the Hukbalahaps to overthrow the Government." After that arrest, specifically on April 5, 1948, the Deportation Board ordered the petitioner’s deportation to Russia, not on the ground stated in the warrant of arrest but on the purported ground that he "violated condition of the temporary stay given him by failing to depart from the Philippines upon its expiration, thus rendering himself subject to deportation under section 37(2) (7) of the Philippine Immigration Act of 1940, as amended." No formal charges for giving aid to Hukbalahaps have ever been filed.

The immigration authorities were unable to carry out the deportation order, and it is alleged that because of that inability the petitioner repeatedly expressed his desire to leave the country on his own account but that his request was not heeded. The petitioner says that he could easily have departed from the Philippines without any expense on the part of the Government when, upon express authority of the respondent Commissioner of Immigration, he secured employment in the Swedish S.S. Axel Salem which was to sail from the Philippines in 1948, but, so he states, the respondent Commissioner of Immigration for no valid and practical reason withdrew the said authority.

Can petitioner be held in detention?

NO. We held that foreign nationals, not enemy, against whom no criminal charges have been formally made or judicial order issued, may not indefinitely be kept in detention; that in the "Universal Declaration of Human Rights" approved by the General Assembly of the United Nations of which the Philippines is a member, the right to life and liberty and all other fundamental rights as applied to human beings were proclaimed; that the theory on which the court is given power to act is that the warrant of deportation, not having been able to be executed, is functus officio and the alien is being held without any authority of law (U. S. v. Nichols, 47 Fed. Supp. 201); that the possibility that the petitioners might join or aid disloyal elements if turned out at large does not justify prolonged detention, the remedy in that case being to impose conditions in the order of release and exact bail in reasonable amount with sufficient sureties.
it is ordered that the writ issue commanding the respondents to release the petitioner from custody upon these terms: The petitioner shall be placed under the surveillance of the immigration authorities or their agents in such form and manner as may be deemed adequate to insure that he keep peace and be available when the Government is ready to deport him. The surveillance shall be reasonable and the question of reasonableness shall be submitted to this Court or to the Court of First Instance of Manila for decision in case of abuse. He shall also put up a bond for the above purpose in the amount of P5,000 with sufficient surety or sureties, which bond the Commissioner of Immigration is authorized to exact by section 40 of Commonwealth Act No. 613.

Cuevas v Munoz
G.R. No 140520, Dec 18, 2000

The Hong Kong Magistrate’s Court at Eastern Magistracy issued a warrant for the arrest of respondent for seven (7) counts of accepting an advantage as an agent contrary to Section 9(1)(a) of the Prevention of Bribery Ordinance, Cap. 201 of Hong Kong, and seven (7) counts of conspiracy to defraud, contrary to the common law of Hong Kong.3 Said warrant remains in full force and effect up to the present time.

The Philippine Department of Justice (hereafter, "Philippine DOJ") received a request for the provisional arrest of the respondent from the Mutual Legal Assistance Unit, International Law Division of the Hong Kong Department of Justice (hereafter, "Hong Kong DOJ")5 pursuant to Article 11(1) of the "Agreement Between The Government Of The Republic Of The Philippines And The Government Of Hong Kong For The Surrender Of Accused And Convicted Persons" (hereafter, "RP-Hong Kong Extradition Agreement"). The Philippine DOJ forwarded the request for provisional arrest to the Anti-Graft Division of the National Bureau of Investigation (NBI).

For and on behalf of the government of Hong Kong, the NBI filed an application for the provisional arrest of the respondent with the Regional Trial Court (RTC) of Manila. The RTC of Manila issued an Order granting the application for provisional arrest and issuing the corresponding Order of Arrest. Respondent was arrested pursuant to the said order and is currently detained at the NBI detention cell.
Respondent filed with the Court of Appeals, a petition for certiorari, prohibition and mandamus with application for preliminary mandatory injunction and/or writ of habeas corpus assailing the validity of the Order of Arrest. The Court of Appeals rendered a decision declaring the Order of Arrest null and void on the ground that the request for provisional arrest and the accompanying warrant of arrest and summary of facts were unauthenticated and mere facsimile copies which are insufficient to form a basis for the issuance of the Order of Arrest, among others.

Is the request for the provisional arrest of respondent valid?

YES. There is no requirement for the authentication of a request for provisional arrest and its accompanying documents.
While Article 11(1) does not require the accompanying documents of a request for provisional arrest to be authenticated, Article 9 of the same Extradition Agreement makes authentication a requisite for admission in evidence of any document accompanying a request for surrender or extradition. In other words, authentication is required for the request for surrender or extradition but not for the request for provisional arrest.

The RP-Hong Kong Extradition Agreement, as they are worded, serves the purpose sought to be achieved by treaty stipulations for provisional arrest.
The process of preparing a formal request for extradition and its accompanying documents, and transmitting them through diplomatic channels, is not only time-consuming but also leakage-prone. There is naturally a great likelihood of flight by criminals who get an intimation of the pending request for their extradition. To solve this problem, speedier initial steps in the form of treaty stipulations for provisional arrest were formulated.30 Thus, it is an accepted practice for the requesting state to rush its request in the form of a telex or diplomatic cable, the practicality of the use of which is conceded.31 Even our own Extradition Law (P.D. No. 1069) allows the transmission of a request for provisional arrest via telegraph.32 In the advent of modern technology, the telegraph or cable have been conveniently replaced by the facsimile machine. Therefore, the transmission by the Hong Kong DOJ of the request for respondent’s provisional arrest and the accompanying documents, namely, a copy of the warrant of arrest against respondent, a summary of the facts of the case against him, particulars of his birth and address, a statement of the intention to request his provisional arrest and the reason therefor, by fax machine, more than serves this purpose of expediency.

Respondent’s reliance on Garvida v. Sales, Jr.33 is misplaced. The proscription against the admission of a pleading that has been transmitted by facsimile machine has no application in the case at bar for obvious reasons. First, the instant case does not involve a pleading; and second, unlike the COMELEC Rules of Procedure which do not sanction the filing of a pleading by means of a facsimile machine, P.D. No. 1069 and the RP Hong Kong Extradition Agreement do not prohibit the transmission of a request for provisional arrest by means of a fax machine.

Government of Hong Kong Special Administrative Region v Olalia Jr
GR No 153675; Apr 29, 2007

Munoz was charged before the Hong Kong Court with a total of 10 crimes and warrants of arrest were issued against him. Later on, the NBI arrested and detained Munoz. The Hong Kong Special Administrative Region filed with the RTC of Manila a petition for the extradition of Munoz. The case was raffled off to Judge Ricardo Bernardo. Munoz then filed a petition for bail which was denied by Judge Berardo because there was no Philippine law granting bail in extradition cases and that Munoz was a high flight risk. 

Is a potential extraditee entitled to post bail?

Yes. If bail can be granted in deportation cases, the Court sees no justification why it should not also be allowed in extradition cases. Likewise, considering that the UDHR applies to deportation cases, there is no reason why it cannot be invoked in extradition cases. After all, both are administrative proceedings where the innocence or guilt of the person detained is not in issue. Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in the light of the various treaty obligations of the Philippines concerning respect for the promotion and protection of human rights. Under these treaties, the presumption lies in favor of human liberty. Thus, the Philippines should see to it that the right to liberty of every individual is not impaired.

Rodriguez v Presiding Judge, RTC Manila
GR No. 157977 ; Feb 27, 2006

The case stemmed from the petition for extradition filed by the Government of the United States through the DOJ against the petitioners. After their arrest, petitioners applied for bail which the trial court granted. The bail was set for 1 Million pesos each, for which petitioners then posted cash bonds. The US Government moved for reconsideration of the grant of bail, but the motion was denied by the trial court. Unsatisfied, the US Government filed a petition for certiorari with this court. Thereafter, the trial court was directed to resolve the matter of bail. In compliance with such, the trial court, without prior notice and hearing, cancelled the cash bond of petitioners and ordered the issuance of a warrant of arrest. Petitioners then filed a very urgent motion for reconsideration of the cancellation of their bail. The motion was heard and denied. Hence, this petition.

Did respondent judge commit serious and grave abuse of discretion tantamount to lack or excess of jurisdiction in cancelling the bail of petitioners without prior notice and hearing of its cancellation?

YES, but only insofar as co-petitioner Imelda Rodriguez is concerned. According to jurisprudence, a prospective extraditee is not entitled to notice and hearing before the issuance of a warrant of arrest, because notifying him before his arrest only tips him of his pending arrest. But this is for cases pending the issuance of a warrant of arrest, not in a cancellation of a bail that had been issued after determination that the extraditee is a no-flight risk. The policy is that a prospective extraditee is arrested and detained to avoid his flight from justice. On the extraditee lies the burden of showing that he will not flee once bail is granted. If after his arrest and if the trial court finds that he is no flight risk, it grants him bail. With the trial court’s knowledge in this case, co-petitioner has offered to go on voluntary extradition; that she and her husband had posted a cash bond of 1 million pesos each; that her husband had already gone on voluntary extraition and is presently in the USA undergoing trial; that the passport of co-petitioner is already in the possession of the authorities; that she never attempted to flee; that there is an existing hold-departure order against her; and that she is now in her sixties, sickly and under medical treatment, the Court believes that the benefits of continued temporary liberty on bail should not be revoked and their grant of bail should not be cancelled, without the co-petitioner being given notice and without her being heard why her temporary liberty should not be discontinued. Thus, absent prior notice and hearing, the bail’s cancellation was in violation of her right due to process. Hence, considering that she has not been shown to be a flight risk nor a danger to the community, she is entitled to notice and hearing before her bail could be cancelled. 

Government of Hongkong - SAR v Munoz
GR No. 207342 ; Aug 16, 2016

Juan Antonio Munoz, as head of the Treasury Department of the Central Bank of the Philippines, was instructed by the Central Bank Governor to raise US$700M in order to fund the buyback of Philippine debts and the purchase of zero coupon U.S. Treasury Bonds. Thereafter, an agreement was entered into between the Central Bank of the Philippines, as represented by Munoz, and Mocatta Group - London, as represented by Mocatta Group - Hong Kong, which resulted in a series of transactions involving gold backed loans and gold swaps. The rebates for the loans and swaps were paid to a certain “Sundry Creditors Account”. The funds from this account were subsequently disbursed to the benefit of the Chief Executive of the Mocatta Group - Hong Kong and Munoz personally. However, none of the payments were known and were sent to the Central Bank of the Philippines. Eventually, 10 criminal actions were filed against Munoz in Hong Kong, i.e. three counts of accepting an advantage as an agent, contrary to Section 9(1)(a) of the Prevention of Bribery Ordinance, Cap. 201 and seven counts of conspiracy to defraud, contrary to the common law of HKSAR. After a series of events, the trial court ruled, among others, that the crimes of conspiracy to defraud and accepting an advantage as an agent were extraditable offenses and that both crimes satisfied the double criminality rule. On appeal, the CA initially affirmed the decision of the trial court. However, it later on ruled that the crime of accepting an advantage as an agent should be excluded from the charges under which Munoz would be tried due to non-compliance with the double criminality rule.

Is the crime of accepting an advantage as an agent compliant with the double criminality rule?

YES. Under the double criminality rule, the extraditable offense must be criminal under the laws of both the requesting and the requested states. In this case,  the crime of accepting an advantage as an agent under Section 9(1)(a) of the Prevention of Bribery Ordinance (POBO), Cap. 201 is defined as “any agent who, without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his doing or forbearing to do, or having done or forborne to do, any act in relation to his principal's affairs or business”. However, it is quite evident that this particular provision deals with private sector bribery; despite the interpretation under Section 2 of the POBO that an "agent includes a public servant and any person employed by or acting for another”. In line with this, Section 9(1)(a) has a parallel POBO provision, Section 4, applicable to public servants, which provides that “any public servant who, whether in Hong Kong or elsewhere, without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his performing or abstaining from performing, or having performed or abstained from performing, any act in his capacity as a public servant, shall be guilty of an offense. Considering that the transactions were entered into by and on behalf of the Central Bank of the Philippines, an instrumentality of the Philippine Government, Munoz should be charged for the offenses not as a regular agent or one representing a private entity, but as a public servant or employee of the Philippine Government. Yet, because the offense of accepting an advantage as an agent charged against him is one that deals with private sector bribery, the conditions for the application of the double criminality rule are obviously not met. 

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