DOJ Circular No. 90; transfer of sentenced persons.

DOJ Department Circular No. 90

DEPARTMENT OF JUSTICE
DEPARTMENT CIRCULAR NO. 90 December 6, 2010

PRESCRIBING RULES IN THE IMPLEMENTATION OF THE TRANSFER OF SENTECED PERSONS AGREEMENTS

Whereas. Section 11, Article II of the 1987 Constitution declares that the State values the dignity of every human person and guarantees full respect for human rights;

Whereas. The Government of the Republic of the Philippines aims at promoting the universally recognized principles of human rights as well as developing international mutual cooperation in the field of criminal justice and social reintegration of sentenced persons into the mainstream of society;

Whereas. Transfer of Sentenced Persons Agreements (TSPAs) facilitate the successful reintegration of sentenced persons into society and ensure their effective rehabilitation as they are afforded the opportunity to serve their sentences in the country of their nationality;

Whereas. The Government of the Republic of the Philippines entered into TSPAs with the Governments of Canada, Cuba, Hong Kong Special Administrative Region (HKSAR), Spain and Thailand, and intends to conclude similar agreements with other interested countries;

Whereas. There is a need to issue rules that will govern the implementation of the TSPAs;

Now, therefore, pursuant to the provisions of existing laws, the department of Justice, as the Central Authority for the Philippines in the implementation of TSPAs, hereby adopts the following rules, which shall govern in the implementation of the TSPAs:

I. Preliminary Provisions

Section 1. Definition of Terms. - As used in this Circular, the following terms shall mean:

a) "Administrative State" means the State to which the sentenced person may be or has been transferred;

b) "Central Authority" means the Department of Justice, representing the Government of the Republic of the Philippines or its foreign counterpart as designated by the Treaty Partner;

c) "Department" means the Department of Justice;

d) "Legal Staff" means the Office of the Chief Justice State Counsel of the Department of Justice;

e) "Minor" means a person under the age of eighteen (18);

f) "Secretary" means the Secretary of the Department of Justice or his or her duly designated representative;

g) "Sentence" means any punishment or measure involving deprivation of liberty ordered by a court of the sentencing State on account of a criminal offences;

h) "Sentenced Person" means the person on whom a punishment or measure involving deprivation of liberty has been imposed on account of a criminal offense;

i) "Sentenced State" means the State in which the sentences was imposed on the person who may be subject to transfer;

j) "Treaty Partner" means the government or the State which has a Treaty on Sentenced Person Agreement (TSPA) in force with the government of the Republic of the Philippines;

k) "Treaty" means the Treaty on the Transfer of Sentenced Persons or TSPA; and

l) "Turn-Over" means the formal transfer or handing-over of the sentenced person from the Sentencing State to the Administrative State or Receiving State.

Section 2. General Principles. - The following principles are adopted:

a) Punishment or measure involving imprisonment or other forms of deprivation of liberty imposed by a sentencing State on Filipino nationals may be served in the prison facilities of the Philippines as administering State.

b) Punishment or measure involving deprivation of liberty imposed in the Philippines on foreign nationals may be served in the prison facilities of the administering State.

c) Transfer may be requested either by the sentencing State or administering State.

d) A Transfer shall be effected only upon the consent of the sentencing State, administering State and sentenced person.

Section 3. Conditions for Transfer. - A request for transfer shall be subject to the following conditions:

a) The acts or omissions on account of which the sentence has been imposed are punishable in the administering State, or would constitute a criminal offense if committed in its territory, although the definition thereof may not be identical;

b) The sentenced person is a national of the administering State;

c) The judgement is final and no other legal proceedings relating to the offense or any other offense are pending in the sentencing State;

d) The Transfer is consented to by the sentencing State, administering State and the sentenced person;

e) The part of the sentences 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 State, a request may be accepted even if part of the sentence still to be served is less than one (1) year; and

f) 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.

Section 4. Nationality of the Sentenced Person. - The sentenced person, whether the term refers to citizenship or habitual residence shall be determined by the administering State and in accordance with its laws.

To provide his or her nationality, the sentenced person shall submit the following documents:

a) Original or certified true copy of his or her birth certificate, issued by the proper office or agency and if issued abroad with due authentication by the Embassy or Consular Office concerned;

b) Original or certified true copy of the birth certificate of his or her parent or parents issued by the proper office or agency and if issued abroad with due authentication by the Embassy or Consular Office concerned;

c) Original copy or certified true copy of his or her passport;

d) Authenticated copy of the specific provisions of the civil law of the administering State upon which the nationality of the sentenced person is based; and

e) Such other documents which may be requested by the sentencing State to prove his or her nationality.

Section 5. Consent of the Sentenced Person. - a) The desire of the sentenced person to be transferred must be expressly stated in a duly subscribed affidavit, stating therein his or her willingness to be transferred under the terms and conditions stated in the TSPA; that he or she is aware of the legal consequences involved in the transfer; and that his or her consent if freely given.

In case of the incapacity of the sentenced person, the consent may be given by his or her legal representative.

b) Where the Philippines is the sentencing State, the Secretary of Justice through the Legal Staff shall take steps to verify that the consent of the sentenced person is given voluntarily and with full knowledge of the consequences thereof.

Upon request, the Department of Justice through the Legal Staff, in accordance with the Department of Foreign Affairs shall afford the Treaty Partner an opportunity to verify trough its embassy or consular official/s in the country that the consent of the sentenced person is given voluntarily and with full knowledge of the consequences of such transfer.

c) Where the Philippines is the administering State, the Department of Justice shall request the Department of Foreign Affairs to verify, through the Philippine Embassy or Consulate in the sentencing State, that the sentenced Filipino national gave his or her consent voluntarily and with full knowledge of the consequences thereof.

Section 6. Central Authorities. - a) The Central Authority for Philippines is the Department of Justice. The Treaty Partner's Central Authority shall be that which is designated in the applicable TSPA or as communicated to the Department of Justice.

b) The Legal Staff shall assist the Secretary in the evaluation of the requests for transfer.

c) A request for shall be made in writing and submitted with the documentary requirements provide under the applicable TSPA.

d) The request for transfer and the reply to such request shall be transmitted through diplomatic channels.1avvphi1 All other communications shall be conveyed directly to the Central Authority of either State.

e) The decision taken on the request for transfer pursuant to the applicable TSPA shall be notified without delay to the Treaty Partner.

Section 7. Language. - All documents submitted in regard to the request for transfer shall be in English language.

II. The Philippines as Sentencing State

Sec. 8. Request; By whom made; Supporting documents; Requirements. - a) A sentenced person, or in case of his or her incapability, his or her duly authorized representative, may file the request for transfer with the Department of Justice, Department of Foreign Affairs, or with the Embassy or Consulate of his or her country of nationality. In the latter case, the Embassy or Consulate concerned shall forward the application to the Department of Foreign Affairs, which shall in turn, forward the same to the Department of Justice.

b) Upon receipt of the request for transfer, the Legal Staff shall conduct the preliminary evaluation based on the applicable TSPA.

c) the request for transfer, which shall be under oath, shall set forth the following;

i. The 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. The date and place of birth of the sentenced person;

iii. Nationality of the sentenced person and proof thereof;

iv. The consent of the sentenced person as stated in Section 5 hereof;

v. Place of confinement;

vi. A statement of the facts of the offense committed and upon which the sentence was based; and

vii. A statement of the duration of the sentence, the specific dates of the commencement and/or termination of sentence or deprivation of liberty imposed.

In addition, the following documents shall be submitted:

a) Original copy or certified true copy of the court's judgment or decision;

b) A certification from the court which rendered the judgment of conviction that the judgment is final and executory;

c) A certification from the concerned government agency in charge of the confinement of the sentenced person, stating the following:

i. complete personal details of the applicant;

ii. the sentence imposed;

iii. the specific date of the initial detention and when the service of sentence was commenced;

iv. the period of sentence already served; and

v. the remaining period to be served, including any applicable deduction for good conduct or time allowance, as the case may be.

d) A certification from the court concerned that the fines, court cost, 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.

Section 9. Request for Transfer 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.

Section 10. Nationality; Double Criminality. - 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 administering State, the Secretary of Justice shall request the Central Authority of that State for the following documents:

a. Statement or document indicating that the sentenced person is its national;

b. A copy of the relevant legal provisions which show that the acts or omissions on account of which the sentence has been imposed also constitute a criminal offense in that State; and

c. Such other information or documents which may be deemed necessary in making a proper determination of the request for transfer.

Section 11. Notice to the Offended Party. - A notice about the request for transfer shall be sent to the offended party, or his or her known relatives, shall be given thirty (30) days from receipt of such notice to inform the Secretary of the payment or non-payment of fines, court costs, civil indemnities and/or pecuniary sanctions of all kinds that the sentenced person is liable under the terms of the sentence.

When justified by the circumstances, such as for humanitarian considerations, notice to the offended party or his or her known relative/s may dispensed with by the Secretary.

Section 12. Transmittal of the Request for Transfer to the Department of Foreign Affairs. - a) if the request for transfer is approved by the Secretary, the request for transfer shall be forwarded to the Department of Foreign Affairs for transmittal to the Central Authority of the administering State. The sentenced person or his or her duly authorized representative shall be informed of such determination.

b) In case of disapproved of the request for transfer, the Secretary shall so inform the Central Authority of the sentencing State and/or the sentenced person or his or her duly authorized representative.

III. The Philippines as the Administering State

Section 13. Receipt of Request. - a) Upon receiving the request for transfer, the Secretary, through the Legal Staff, shall make a determination whether the request meets the requirements of the applicable TSPA.

b) The Central Authority of the sentencing State shall be informed of the decision taken by the Secretary on the request for transfer.

Section 14. Nationality; Double Criminality. - 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 are likewise punishable in the Philippines, the Secretary of Justice shall request the Central Authority of the sentencing State for the following statements and/or documents:

a) Statement or document indicating that the sentenced person is a Filipino national; and

b) A summary of the facts upon which the sentence was based, the text of the legal provisions defining the offense and the conclusion of the court judgment.

Section 15. Verification of Content. - Before giving his or her consent to the transfer, the Secretary of Justice, through the Philippine Embassy or Consular officials in the sentencing State, shall verify the consent of the sentenced Filipino national requesting transfer to ensure that the same is voluntary given and with full knowledge of the consequences thereof.

IV. Formal Transfer/Turn-Over

Section 16. Transfer/Turn-Over; Procedure; How made. - a) Where the Philippines is sentencing State, the Secretary, upon the finality of the documentary processes and procedure for the transfer, shall cause the Bureau of immigration to issue a Clearance relative to the formal transfer or turn-over of the sentenced person.

In case a Hold Departure Order (HDO) or Watchlist Order (WLO) was issued against him or her, the sentenced person, or his or her counsel shall cause the lifting of the same with the proper office/agency or court which issued the HDO or WLO.

b) The INTERPOL Division of the National Bureau of Investigation (NBI), with the assistance of the government agency in charge of the confinement of the sentenced person, shall coordinate with the Treaty Partners' authorized officials, for the formal transfer or turn-over of the sentenced person. It will exercise all the necessary security measures for the transfer or turn-over of the sentenced person to the authorities of the administering State.

c) Where the Philippines is the administering State, NBI-INTERPOL agents shall escort back to the country the sentenced Filipino national. Whenever so determined by the Secretary to be necessary, the NBI-INTERPOL agents may be joined by the designed representative of the government agency that will have custody of the sentenced Filipino national.

d) Where the Philippines is the sentencing State, the Secretary may, whenever necessary, or when so requested by the administering State, allow NBI-INTERPOL agents to join in escorting the sentenced person to the administering State.

e) In all cases of transfer, the NBI-INTERPOL shall submit to the Department a report on such transfer, stating therein chronologically the procedure followed; the names and designations of the offers who escorted or received the sentenced person, the details of departure from or arrival to the Philippines of the sentenced person (i.e., flight number, airport of departure, date and time of departure, date and time of stop-over, if any; date and time of lay-off, date and time of arrival, airport of arrival), and other important details relating to the transfer.

V. Post-Transfer Provisions

Section 17. Continued Enforcement. - a) Once the transfer has been carried out, the enforcement of the sentence shall be governed by the laws of the administering State.

B) 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.

Section 18. Pardon, Amnesty, or Commutation. - Only the sentencing State may, pursuant of 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.

In cases where the Philippines is the sentencing State, the Board of Pardons and Parole shall issue the necessary guidelines in processing claims for pardon or commutation in accordance with Philippine laws.

Section 19. 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 20. 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 21. Information on Enforcement. - The administering State shall inform the sentencing State;

a) When the enforcement of the sentence has been completed;

b) When the sentenced person has escaped; or

c) Any matter related to the TSPA that the sentencing State may request.

Section 22. Ne Bis In Idem. - A sentenced person transferred under a TSPA 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 23. Rule of Specialty. - A sentenced person transferred may not be arrested, committed for trial 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.

VI. Miscellaneous Provisions

Section 24. Applicability of Philippine Laws. - Unless the TSPA provides otherwise, the laws, rules and regulations of the Philippines pertaining to prisoners shall apply to a sentenced person failing under the coverage of the TSPA. In this regard, the Secretary, taking into consideration the applicable Philippine laws, rules and regulations, the case of the sentenced person and such other relevant circumstances, may refuse a request for transfer.

Section 25. Separability Clause. - If for any reason any part of provision of this Circular is declared unconstitutional or invalid, the other parts of the provisions hereof which are not affected thereby shall remain and continue to be in full force or effect.

Section 26. Repealing Clause. - This Circular revokes Department Circular No. 15 entitled *Rules and Regulations to Implement the Treaty on the Transfer of Sentenced Persons between the Republic of the Philippines and the Kingdom of Spain*, series of 2009.

Section 27. Effectivity. - This Department Circular shall take effect immediately

Done in the City of Manila, this 06 day of DEC. 2010.

LEILA M. DE LIMA
Secretary

Source: Philippine STAR - December 11, 2010 The Lawphil Project - Arellano Law Foundation