PAUL JOSEPH WRIGHT vs. CA, G.R. No. 113213 August 15, 1994

Political Law; International Law; Extradition; Extradition is an intrusion into the territorial integrity of the host State and a delimitation of the sovereign power of the State within its own territory.A paramount principle of the law of extradition provides that a State may not surrender any individual for any offense not included in a treaty of extradition. This principle arises from the reality of extradition as a derogation of sovereignty. Extradition is an intrusion into the territorial integrity of the host State and a delimitation of the sovereign power of the State within its own territory.

Same; Same; Same; An act of extradition does not impose an obligation to extradite on the requested State until the latter has made its own determination of the validity of the requesting States demand, in accordance with the requested States own interests.As it is an act of surrender of an individual found in a sovereign State to another State which demands his surrender, an act of extradition, even with a treaty rendered executory upon ratification by appropriate authorities, does not impose an obligation to extradite on the requested State until the latter has made its own determination of the validity of the requesting States demand, in accordance with the requested States own interests.

Same; Same; Same; The principles of international law recognize no right of extradition apart from that arising from treaty.The principles of international law recognize no right of extradition apart from that arising from treaty. Pursuant to these principles, States enter into treaties of extradition principally for the purpose of bringing fugitives.

Facts: Australia and the Government of the Philippines in the suppression of crime, entered into a Treaty of Extradition on the 7th of March 1988. The said treaty was ratified in accordance with the provisions of Section 21, Article VII of the 1987 Constitution in a Resolution adopted by the Senate on September 10, 1990 and became effective 30 days after both States notified each other in writing that the respective requirements for the entry into force of the Treaty have been complied with. Petitioner contends that the provision of the Treaty giving retroactive effect to the extradition treaty amounts to an ex post facto law which violates Section 21 of Article VI of the Constitution.

ISSUE: Can an extradition treaty be applied retroactively?

HELD: Applying the constitutional principle, the Court has held that the prohibition applies only to criminal legislation which affects the substantial rights of the accused. This being so, there is no absolutely no merit in petitioner's contention that the ruling of the lower court sustaining the Treaty's retroactive application with respect to offenses committed prior to the Treaty's coming into force and effect, violates the Constitutional prohibition against ex post facto laws. As the Court of Appeals correctly concluded, the Treaty is neither a piece of criminal legislation nor a criminal procedural statute. It merely provides for the extradition of persons wanted for prosecution of an offense or a crime which offense or crime was already committed or consummated at the time the treaty was ratified.

KHOSROW MINUCHER v. CA and ARTHUR SCALZO (G.R. 142396)Facts:Minucher is an Iranian national who came to study in UP in 1974 and was appointed Labor Attache for the Iranian Embasies in Tokyo and Manila; he continued to stay in the Philippines when the Shah of Iran was deposed by Khomeini, he became a refugee of the UN and he headed the Iranian National Resistance Movement in the Philippines.On the other hand, Scalzo was a special agent of the US Drugs Enforcement Agency. He conducts surveillance operations on suspected drug dealers in the Philippines believed to be the source of prohibited drugs shipped to the US and make the actual arrest.Minucher and one Abbas Torabian was charged for a violation of Act. 6425 (Dangerous Drugs Act of 1972) before the Pasig RTC, such criminal charge was followed by a buy-bust operation conducted by the Philippine police narcotic agents to which Scalzo was a witness for the prosecution. They were acquitted.Later on, Minucher filed a complaint for damages against Scalzo. It was said that Minucher and Scalzo came to know of each other thru Jose Iigo; they conducted some business i.e. the former sold to the latter some caviar and Persian carpets. Scalzo then represented himself as a special agent of the Drug Enforcement Administration, DOJ of US. Minucher expressed his desire to obtain a US Visa for him and his Abbass wife. Scalzo told him that he could help him for a $2,000 fee per visa. After a series of business transactions between the two, when Scalzo came to deliver the visas to Minuchers house, he told the latter that he would be leaving the Philippines soon and requested him to come out of the house so he can introduce him to his cousin waiting in the cab. To his surprise, 30-40 armed Filipino soldiers came to arrest him.In his complaint for damages, he said that some of his properties were missing like Persian carpets, a painting together with his TV and betamax sets. There was nothing left in his house. He averred that his arrest as a heroine trafficker was well publicized and that when we got arrested, he was not given any food or water for 3 days.In his defense, Scalzo asserted his diplomatic immunity as evidenced by a Diplomatic Note. He contended that it was recognized by the US Government pursuant to the Vienna Convention on Diplomatic Relations and the Philippine government itself thru its Executive Department and DFA.The courts ruled in favor of Scalzo on the ground that as a special agent of the US Drug Enforcement Administration, he was entitled to diplomatic immunity. Hence, the present recourse of Minucher.Issue: WON Scalzo is entitled to diplomatic immunityHeld: Yes.Ratio:The Convention lists the classes of heads of diplomatic missions to include (a) ambassadors or nuncios accredited to the heads of state, (b) envoys,ministers orinternunciosaccredited to the heads of states; and (c) charges d' affairsaccredited to the ministers of foreign affairs. Comprising the "staff of the (diplomatic) mission" are the diplomatic staff, the administrative staff and the technical and service staff. Only the heads of missions, as well as members of the diplomatic staff, excluding the members of the administrative, technical and service staff of the mission, are accorded diplomatic rank. Even while the Vienna Convention on Diplomatic Relations provides for immunity to the members of diplomatic missions, it does so, nevertheless, with an understanding that the same be restrictively applied. The main yardstick in ascertaining whether a person is a diplomat entitled to immunity is the determination of whether or not he performs duties of diplomatic nature.Scalzo was an Assistant Attach of the US diplomatic mission. An attach belongs to a category of officers in the diplomatic establishment who may be in charge of its cultural, press, administrative or financial affairs. There could also be a class of attaches belonging to certain ministries or departments of the government, other than the foreign ministry or department, who are detailed by their respective ministries or departments with the embassies such as the military, naval, air, commercial, agricultural, labor, science, and customs attaches, or the like. Attaches assist a chief of mission in his duties and are administratively under him, but their main function is to observe, analyze and interpret trends and developments in their respective fields in the host country and submit reports to their own ministries or departments in the home government. These officials are not generally regarded as members of the diplomatic mission, nor are they normally designated as having diplomatic rank.Vesting a person with diplomatic immunity is a prerogative of the executive branch of the government. The government of the United States itself, which Scalzo claims to be acting for, has formulated its standards for recognition of a diplomatic agent. The State Department policy is to only concede diplomatic status to a person who possesses an acknowledged diplomatic title and "performs duties of diplomatic nature." Supplementary criteria for accreditation are the possession of a valid diplomatic passport or, from States which do not issue such passports, a diplomatic note formally representing the intention to assign the person to diplomatic duties, the holding of a non-immigrant visa, being over twenty-one years of age, and performing diplomatic functions on an essentially full-time basis. Diplomatic missions are requested to provide the most accurate and descriptive job title to that which currently applies to the duties performed. The Office of the Protocol would then assign each individual to the appropriate functional category. While the diplomatic immunity of Scalzo might thus remain contentious, it was sufficiently established that, indeed, he worked for the United States Drug Enforcement Agency and was tasked to conduct surveillance of suspected drug activities within the country on the dates pertinent to this case. If it should be ascertained that Arthur Scalzo was acting well within his assigned functions when he committed the acts alleged in the complaint, the present controversy could then be resolved under the related doctrine of State Immunity from Suit.Theprecept that a State cannot be sued in the courts of a foreign stateis a long-standing rule of customary international law then closely identified with the personal immunity of a foreign sovereign from suit and, with the emergence of democratic states, made to attach not just to the person of the head of state, or his representative, but also distinctly to the state itself in its sovereign capacity.If the acts giving rise to a suit are those of a foreign government done by its foreign agent, although not necessarily a diplomatic personage, but acting in his official capacity, the complaint could be barred by the immunity of the foreign sovereign from suit without its consent. Suing a representative of a state is believed to be, in effect, suing the state itself. The proscription is not accorded for the benefit of an individual but for the State, in whose service he is, under the maxim - par in parem, non habet imperium - that all states are sovereign equals and cannot assert jurisdiction over one another.22The implication, in broad terms, is that if the judgment against an official would require the state itself to perform an affirmative act to satisfy the award, such as the appropriation of the amount needed to pay the damages decreed against him, the suit must be regarded as being against the state itself, although it has not been formally impleaded. (T)he doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary citizen. The cloak of protection afforded the officers and agents of the government is removed the moment they are sued in their individual capacity. This situation usually arises where the public official acts without authority or in excess of the powers vested in him. It is a well-settled principle of law that a public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with malice and in bad faith or beyond the scope of his authority and jurisdiction." Indeed, a foreign agent, operating within a territory, can be cloaked with immunity from suit but only as long as it can be established that he is acting within the directives of the sending state. The consent of the host state is an indispensable requirement of basic courtesy between the two sovereigns. While evidence is wanting to show any similar agreement between the governments of the Philippines and of the United States (for the latter to send its agents and to conduct surveillance and related activities of suspected drug dealers in the Philippines), the consent orimprimaturof the Philippine government to the activities of the United States Drug Enforcement Agency, however, can be gleaned from the facts heretofore elsewhere mentioned. The official exchanges of communication between agencies of the government of the two countries, certifications from officials of both the Philippine Department of Foreign Affairs and the United States Embassy, as well as the participation of members of the Philippine Narcotics Command in the "buy-bust operation" conducted at the residence of Minucher at the behest of Scalzo, may be inadequate to support the "diplomatic status" of the latter but they give enough indication that the Philippine government has given itsimprimatur, if not consent, to the activities within Philippine territory of agent Scalzo of the United States Drug Enforcement Agency. The job description of Scalzo has tasked him to conduct surveillance on suspected drug suppliers and, after having ascertained the target, to inform local law enforcers who would then be expected to make the arrest. In conducting surveillance activities on Minucher, later acting as the poseur-buyer during the buy-bust operation, and then becoming a principal witness in the criminal case against Minucher, Scalzo hardly can be said to have acted beyond the scope of his official function or duties.

Republic of Indonesia vs. James Vizon

FACTS:On August 1995, Petitioner, Republic of Indonesia entered into a Maintenance Agreement with respondent James Vinzon, sole proprietor of Vinzon Trade and Services. The Maintenance Agreement stated that respondent shall, for a consideration, maintain specified equipment at the Embassy Main Building, Embassy Annex Building and the Wisma Duta, the official residence of petitioner Ambassador Soeratmin. The equipments covered by the Maintenance Agreement are air conditioning units, generator sets, electrical facilities, water heaters, and water motor pumps. It is likewise stated therein that the agreement shall be effective for a period of four years and will renew itself automatically unless cancelled by either party by giving thirty days prior written notice from the date of expiry.Petitioners claim that sometime prior to the date of expiration of the said agreement, or before August 1999, they informed respondent that the renewal of the agreement shall be at the discretion of the incoming Chief of Administration, Minister Counsellor Azhari Kasim, who was expected to arrive in February 2000. When Minister Counsellor Kasim assumed the position of Chief of Administration in March 2000, On August 31 2000, the Indonesian Embassy terminated the agreement in a letter because he allegedly found respondents work and services unsatisfactory and not in compliance with the standards set in the Maintenance Agreement. Petitioners claim, moreover, that they had earlier verbally informed respondent of their decision to terminate the agreement. On the other hand, respondent claims that the aforesaid termination was arbitrary and unlawful. Respondent filed a complaintagainst petitioners (RTC) of Makati. Petitioners filed a Motion to Dismiss, alleging that the Republic of Indonesia, as a foreign sovereign State, has sovereign immunity from suit and cannot be sued as a party-defendant in the Philippines. The said motion further alleged that Ambassador Soeratmin and Minister Counsellor Kasim are diplomatic agents as defined under the Vienna Convention on Diplomatic Relations and therefore enjoy diplomatic immunity. On March 20, 2001, respondent filed, an Opposition to the said motion alleging that the Republic of Indonesia has expressly waived its immunity from suit. He based this claim upon the following provision in the Maintenance Agreement.

ISSUE:1. Whether or not the Republic of Indonesia can be sued.2. Whether or not the Court of Appeals erred in sustaining the trial courts decision that petitioners have waived their immunity from suit by using as its basis the abovementioned provision in the Maintenance Agreement. 3. Whether or not it is an act of jure imperii or jure gestionis?

HELD:1. No, The Supreme Court on the matter ruled that the republic of Indonesia cannot be deemed to have waived its immunity to suit. The existence alone of a paragraph in a contract stating that any legal action arising out of the agreement shall be settled according to the laws of the Philippines and by a specified court of the Philippines is not necessarily a waiver of sovereign immunity from suit. The aforesaid provision contains language not necessarily inconsistent with sovereign immunity. On the other hand, such provision may also be meant to apply where the sovereign party elects to sue in the local courts, or otherwise waives its immunity by any subsequent act. The applicability of Philippine laws must be deemed to include Philippine laws in its totality, including the principle recognizing sovereign immunity. Hence, the proper court may have no proper action, by way of settling the case, except to dismiss it.

2. The Supreme Court ruled under International law is founded largely upon the principles of reciprocity, comity, independence, and equality of States which were adopted as part of the law of our land under Article II, Section 2 of the 1987 Constitution. The rule that a State may not be sued without its consent is a necessary consequence of the principles of independence and equality of States. As enunciated in Sanders v. Veridiano II,[the practical justification for the doctrine of sovereign immunity is that there can be no legal right against the authority that makes the law on which the right depends.In the case of foreign States, the rule is derived from the principle of the sovereign equality of States, as expressed in the maximpar in parem non habet imperium.All states are sovereign equals and cannot assert jurisdiction over one another. A contrary attitude would unduly vex the peace of nations.3. The rules of International Law, however, are neither unyielding nor impervious to change.The increasing need of sovereign States to enter into purely commercial activities remotely connected with the discharge of their governmental functions brought about a new concept of sovereign immunity.This concept, the restrictive theory, holds that the immunity of the sovereign is recognized only with regard to public acts or actsjure imperii, but not with regard to private acts or actsjure gestionis.There is no dispute that the establishment of a diplomatic mission is an actjure imperii.A sovereign State does not merely establish a diplomatic mission and leave it at that; the establishment of a diplomatic mission encompasses its maintenance and upkeep.Hence, the State may enter into contracts with private entities to maintain the premises, furnishings and equipment of the embassy and the living quarters of its agents and officials.It is therefore clear that petitioner Republic of Indonesia was acting in pursuit of a sovereign activity when it entered into a contract with respondent for the upkeep or maintenance of the air conditioning units, generator sets, electrical facilities, water heaters, and water motor pumps of the Indonesian Embassy and the official residence of the Indonesian ambassador.The court states that, for the foregoing reasons, the judgment appealed from must be reversed, without costs in this instance. Whether the Government intends to make it legally liable for the amount of damages above set forth, which the plaintiff has sustained by reason of the negligent acts of one of its employees, be legislative enactment and by appropriating sufficient funds therefore, we are not called upon to determine. This matter rests solely with the Legislature and not with the courts.

Govt of US vs. Judge Purganan

International Law; Extradition; Treaties; A cardinal rule in the interpretation of a treaty or a law is to ascertain and give effect to its intent.The substantive issues raised in this case require an interpretation or construction of the treaty and the law on extradition. A cardinal rule in the interpretation of a treaty or a law is to ascertain and give effect to its intent. Since PD 1069 is intended as a guide for the implementation of extradition treaties to which the Philippines is a signatory, understanding certain postulates of extradition will aid us in properly deciding the issues raised here.

Same; Same; Postulates of Extradition; Extradition is a major instrument for the suppression of crime.Extradition treaties are entered into for the purpose of suppressing crime by facilitating the arrest and the custodial transfer of a fugitive from one state to the other. With the advent of easier and faster means of international travel, the flight of affluent criminals from one country to another for the purpose of committing crime and evading prosecution has become more frequent. Accordingly, governments are adjusting their methods of dealing with criminals and crimes that transcend international boundaries. Today, a majority of nations in the world community have come to look upon extradition as the major effective instrument of international co-operation in the suppression of crime. It is the only regular system that has been devised to return fugitives to the jurisdiction of a court competent to try them in accordance with municipal and international law.

Same; Same; Same; The requesting State will accord due process to the accused.An extradition treaty presupposes that both parties thereto have examined, and that both accept and trust, each others legal system and judicial process. More pointedly, our duly authorized representatives signature on an extradition treaty signifies our confidence in the capacity and the willingness of the other state to protect the basic rights of the person sought to be extradited. That signature signifies our full faith that the accused will be given, upon extradition to the requesting state, all relevant and basic rights in the criminal proceedings that will take place therein; otherwise, the treaty would not have been signed, or would have been directly attacked for its unconstitutionally.

Same; Same; Same; Extradition proceedings are sui generis.As pointed out in Secretary of Justice v. Lantion, extradition proceedings are not criminal in nature. In criminal proceedings, the constitutional rights of the accused are at fore; in extradition which is sui generisin a class by itselfthey are not. An extradition [proceeding] is sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee x x x.

Same; Same; Same; The ultimate purpose of extradition proceedings in court is only to determine whether the extradition request complies with the Extradition Treaty, and whether the person sought is extraditable.Given the foregoing, it is evident that the extradition court is not called upon to ascertain the guilt or the innocence of the person sought to be extradited. Such determination during the extradition proceedings will only result in needless duplication and delay. Extradition is merely a measure of international judicial assistance through which a person charged with or convicted of a crime is restored to a jurisdiction with the best claim to try that person. It is not part of the function of the assisting authorities to enter into questions that are the prerogative of that jurisdiction. The ultimate purpose of extradition proceedings in court is only to determine whether the extradition request complies with the Extradition Treaty, and whether the person sought is extraditable.

Same; Same; Same; Pacta Sunt Servanda; We are bound by pacta sunt seruanda to comply in good faith with our obligations under the Extradition Treaty.Our executive branch of government voluntarily entered into the Extradition Treaty, and our legislative branch ratified it. Hence, the Treaty carries the presumption that its implementation will serve the national interest. Fulfilling our obligations under the Extradition Treaty promotes comity with the requesting state. On the other hand, failure to fulfill our obligations thereunder paints a bad image of our country before the world community. Such failure would discourage other states from entering into treaties with us, particularly an extradition treaty that hinges on reciprocity. Verily, we are bound by pacta sunt servanda to comply in good faith with our obligations under the Treaty. This principle requires that we deliver the accused to the requesting country if the conditions precedent to extradition, as set forth in the Treaty, are satisfied. In other words, [t]he demanding government, when it has done all that the treaty and the law require it to do, is entitled to the delivery of the accused on the issue of the proper warrant, and the other government is under obligation to make the surrender. Accordingly, the Philippines must be ready and in a position to deliver the accused, should it be found proper.

Same; Same; Same; Persons to be extradited are presumed to be flight risks.Persons to be extradited are presumed to be flight risks. This prima facie presumption finds reinforcement in the experience of the executive branch: nothing short of confinement can ensure that the accused will not flee the jurisdiction of the requested state in order to thwart their extradition to the requesting state.

FACTS:

Petition is a sequel to the case Sec. of Justice v. Hon. Lantion. The Secretary was ordered to furnish Mr. Jimenez copies of the extradition request and its supporting papers and to grant the latter a reasonable period within which to file a comment and supporting evidence. But, on motion for reconsideration by the Sec. of Justice, it reversed its decision but held that the Mr. Jimenez was bereft of the right to notice and hearing during the evaluation stage of the extradition process. On May 18, 2001, the Government of the USA, represented by thePhilippineDepartment of Justice, filed with the RTC, the Petition for Extradition praying for the issuance of an order for his immediate arrest pursuant to Sec. 6 of PD 1069 in order to prevent the flight of Jimenez. Before the RTC could act on the petition, Mr. Jimenez filed before it an Urgent Manifestation/Ex-Parte Motion praying for hisapplicationfor an arrest warrant be set for hearing. After the hearing, as required by the court, Mr. Jimenez submitted his Memorandum. Therein seeking an alternative prayer that in case a warrant should issue, he be allowed to post bail in the amount of P100,000. The court ordered the issuance of a warrant for his arrest and fixing bail for his temporary liberty at P1M in cash. After he had surrendered his passport and posted the required cash bond, Jimenez was granted provisional liberty.

Government of the USA filed a petition for Certiorari under Rule 65 of the Rules of Court to set aside the order for the issuance of a warrant for his arrest and fixing bail for his temporary liberty at P1M in cash which the court deemsbestto take cognizance as there is still no local jurisprudence to guide lower court.ISSUES:i. Whether or NOT Hon. Purganan acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in adopting a procedure of first hearing a potential extraditee before issuing an arrest warrant under Section 6 of PD No. 1069ii. Whether or NOT Hon. Purganan acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in granting the prayer for bailiii. Whether or NOT there is a violation of due process

HELD: Petition is GRANTED. Bail bond posted is CANCELLED. Regional Trial Court of Manila is directed to conduct the extradition proceedings before it.

i. YES.

By using the phrase if it appears, the law further conveys that accuracy is not asimportant as speed at such early stage. From the knowledge and the material then available to it, the court is expected merely to get a good first impression or a prima facie finding sufficient to make a speedy initial determination as regards the arrest and detention of the accused. The prima facie existence of probable cause for hearing the petition and, a priori, for issuing an arrest warrant was already evident from the Petition itself and its supporting documents. Hence, after having already determined therefrom that a prima facie finding did exist, respondent judge gravely abused his discretion when he set the matter for hearing upon motion of Jimenez. The silence of the Law and the Treaty leans to the more reasonable interpretation that there is no intention to punctuate with a hearing every little step in the entire proceedings. It also bears emphasizing at thispointthat extradition proceedings are summary in nature. Sending to persons sought to be extradited a notice of the request for their arrest and setting it for hearing at some future date would give them ample opportunity to prepare and execute an escape which neither the Treaty nor the Law could have intended.

Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not require a notice or a hearing before the issuance of a warrant of arrest. To determine probable cause for the issuance of arrest warrants, the Constitution itself requires only the examination under oath or affirmation of complainants and the witnesses they may produce.

The Proper Procedure to BestServe The Ends Of Justice In Extradition Cases Upon receipt of a petition for extradition and its supporting documents, the judge must study them and make, as soon as possible, a prima facie finding whethera) they are sufficient in form and substanceb) they show compliance with the Extradition Treaty and Lawc) the person sought is extraditable

At his discretion, the judge may require the submission of further documentation or may personally examine the affiants and witnesses of the petitioner. If, in spite of this study and examination, no prima facie finding is possible, the petition may be dismissed at the discretion of the judge. On the other hand, if the presence of a prima facie case is determined, then the magistrate must immediately issue a warrant for the arrest of the extraditee, who is at the same time summoned to answer the petition and to appear at scheduled summary hearings. Prior to the issuance of the warrant, the judge must not inform or notify the potential extraditee of the pendency of the petition, lest the latter be given the opportunity to escape and frustrate the proceedings.

ii. Yes.

The constitutional provision on bail on Article III, Section 13 of the Constitution, as wellas Section 4 of Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation ofPhilippinecriminal laws. It does not apply to extradition proceedings, because extradition courts do not render judgments of conviction or acquittal. Moreover, the constitutional right to bail flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be provedbeyondreasonable doubt. In extradition, the presumption of innocence is not at issue. The provision in the Constitution stating that the right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended findsapplicationonly to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.

That the offenses for which Jimenez is sought to be extradited are bailable in the United States is not an argument to grant him one in the present case. Extradition proceedings are separate and distinct from the trial for the offenses for which he is charged. He shouldapply forbail before the courts trying the criminal cases against him, not before the extradition court.

Exceptions to the No Bail Rule Bail is not a matter of right in extradition cases. It is subject to judicial discretion in the context of the peculiar facts of each case. Bail may be applied for and granted as an exception, only upon a clear and convincing showing1) that, once granted bail, the applicant will not be a flight risk or a danger to the community; and2) that there exist special, humanitarian and compelling circumstances including, as a matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition cases therein

Since this exception has no express or specific statutory basis, and since it is derived essentially from general principles of justice and fairness, the applicant bears the burden of proving the above two-tieredrequirementwith clarity, precision and emphatic forcefulness.

It must be noted that even before private respondent ran for and won a congressional seat in Manila, it was already ofpublicknowledge that the United States was requesting his extradition. Therefore, his constituents were or should have been prepared for the consequences of the extradition case. Thus, the court ruled against his claim that his election topublicoffice is by itself a compelling reason to grant him bail.

Giving premium to delay by considering it as a special circumstance for the grant of bail would be tantamount to giving him the power to grant bail to himself. It would also encourage him to stretch out and unreasonably delay the extradition proceedings even more. Extradition proceedings should be conducted with all deliberate speed to determine compliance with the Extradition Treaty and Law; and, while safeguarding basic individual rights, to avoid the legalistic contortions, delays and technicalities that may negate that purpose. That he has not yet fled from the Philippines cannot be taken to mean that he will stand his ground and still be within reach of our government if and when it matters; that is, upon the resolution of the Petition for Extradition.iii. NO.

Potential extraditees are entitled to the rights to due process and to fundamental fairness. The doctrine of right to due process and fundamental fairness does not always call for a prior opportunity to be heard. A subsequent opportunity to be heard is enough. He will be given full opportunity to be heard subsequently, when the extradition court hears the Petition for Extradition. Indeed, available during the hearings on the petition and the answer is the full chance to be heard and to enjoy fundamental fairness that is compatible with the summary nature of extradition.

It is also worth noting that before the US government requested the extradition of respondent, proceedings had already been conducted in that country. He already had that opportunity in the requesting state; yet, instead of taking it, he ran away.

Other Doctrines:

Five Postulates of Extradition1) Extradition Is a Major Instrument for the Suppression of Crime

In this era of globalization, easier and faster international travel, and an expanding ring ofinternational crimes and criminals, we cannot afford to be an isolationist state. We need to cooperate with other states in order to improve our chances of suppressing crime in our own country.

2) The Requesting State Will Accord Due Process to the Accused

By entering into an extradition treaty, the Philippines is deemed to have reposed its trustin the reliability or soundness of the legal and judicial system of its treaty partner, as well as in the ability and the willingness of the latter to grant basic rights to the accused in the pending criminal case therein.

3) The Proceedings Are Sui Generis

An extradition proceeding is sui generis:a) It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights. It does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited.b) An extradition proceeding is summary in nature while criminal proceedings involve a full-blown trial.c) In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond reasonable doubt for conviction while a fugitive may be ordered extradited upon showing of the existence of a prima facie cased) Unlike in a criminal case where judgment becomes executory upon being rendered final, in an extradition proceeding, our courts may adjudge an individual extraditable but the President has the final discretion to extradite him.

Extradition is merely a measure of international judicial assistance through which a person charged with or convicted of a crime is restored to a jurisdiction with the best claim to try that person. The ultimate purpose of extradition proceedings in court is only to determine whether the extradition request complies with the Extradition Treaty, and whether the person sought is extraditable.

4) Compliance Shall Be in Good Faith.

We are bound by pacta sunt servanda to comply in good faith with our obligationsunder the Treaty. Accordingly, the Philippines must be ready and in a position to deliver theaccused, should it be found proper

5) There Is an Underlying Risk of Flight

Indeed, extradition hearings would not even begin, if only the accused werewilling to submit to trial in the requesting country. Prior acts of herein respondent:a) leaving the requesting state right before the conclusion of his indictment proceedings there; andb) remaining in the requested state despite learning that the requesting state is seeking his return and that the crimes he is charged with are bailable

Extradition is Essentially ExecutiveExtradition is essentially an executive, not a judicial, responsibility arising out of the presidential power to conduct foreign relations and to implement treaties. Thus, the Executive Department of government has broad discretion in its duty and power of implementation.

Right against Inhuman and Degrading Treatment

Soering v. United Kingdom , (1989)11 Eur Ct HR 55 (Ser A)

FactsSoering, a German national, had come to the U.S.A. in his adolescent age to study at the Virginia University where he became friends with Elizabeth Haysom, a Canadian national. Haysom's parents, William Reginald Haysom and Nancy Astor Haysom were living near the University, in Boonsboro, and were against their daughter's friendship with Soering. Hence, Soering and Elizabeth Haysom decided to kill Haysom's parents. To divert suspicion, they took a car on rent and drove to Washington D.C. Then Soering drove to Haysom's residence and had dinner with the unsuspecting couple. During dinner he picked a quarrel and viciously attacked them with a knife. Both were found with their throats slit and with stab and slash wounds on the neck and the body.After some days Soering and Elizabeth Haysom fled to Europe and there they were arrested in England on charges of cheque fraud. Six weeks later, a grand jury of Circuit Court of Bedford county, Virginia, indicted Soering with the murder of Haysoms. Later the U.S.A. requested the extradition for the pair as per Extradition Treaty. A warrant was issued for the arrest of Soering, and he was committed to await the Home Secretary's Order to extradite him to the U.S.A.Thereafter Soering filed a petition for habeas corpus with a Divisional Court and requested permission for judicial review of the decision to commit him on the ground that extradition treaty did not authorize extradition for a capital charge, but Divisional Court refused request for judicial review and admitted that the assurance "Leaves something to be desired" stating that Soering's request was premature as Home Secretary had not yet accepted such assurance. Then Soering appealed to the Judicial Committee of the House of Lords which rejected his claim. He then also petitioned Home Secretary without success and the latter authorized the extradition.Soering filed a claim with the European Commission of Human Rights, anticipating negative outcome, asserting that he would face inhuman and degrading treatment contrary to provisions of the European Convention on Human Rights, were he to be extradited to the U.S.A., it being likely that the death penalty would be applied.Issues1. Whether the case enlarges the scope of State's responsibility for breach of Convention?2. Finding a breach of the Convention on the territory of a non-signatory State, whether the Court can considerably expand obligation of all States?3. Whether the rationale of the Court's judgment applies equally to deportation cases?4. Whether the Court's approach to death penalty itself is permitted by the Convention?Judgment1. Of European Commission: Extradition would not constitute inhuman or degrading treatment, even if it is accepted that the extradition of a person is to a country "where it is certain that there is a serious risk that the person would be subjected to torture or inhuman treatment."2. Of European Court of Human Rights: The extraditing State could be responsible for the breach where it is aware of a real risk that the person may be subject to inhuman or degrading treatment.Ruling of European Court of Human Rights with highlighted factors :(i) Length of detention prior to execution(ii) Conditions on death row(iii) Soering's age and mental condition(iv) Possibility of his extradition to Germany.Aftermath of judgmentUK Government obtained further assurances from the U.S.A. regarding the death penalty before extraditing Soering to Virginia. He was tried and convicted of the first degree murders of the Haysoms and sentenced to two consecutive life terms. Elizabeth Haysom did not contest her extradition from the U.K. and pled guilty to conspiring to kill her parents. The Court sentenced her to 45-years-per-count to be served consecutively.

Chahal v UK: An AnalysisDirghayu PatelThis article will analyse and critically examine the recent decision of the European Court of Human Rights (ECHR) in Chahal v UK. This case is important because the Court's jurisprudence in a number of areas is developed, for example the application of Article 3 in deportation cases. The case also raises wider issues, for example the Court's attitude towards the interest of the state to safeguard national security, the rights of asylum seekers under the Convention and the role of the non governmental organisation in the fact finding process.FactsKaramjit Singh Chahal is a Sikh who illegally entered the United Kingdom in 1971. His stay in the UK was regularised in 1974 under a general amnesty for illegal entrants. In 1984, Chahal visited his native Punjab where he was arrested by the Punjab police. He has not visited India since 1984.Chahal has been politically active in the Sikh community in the UK. He played an important role in the foundation and organisation of the International Sikh Youth Federation which is an overseas branch of the All India Sikh Students' Association which was an organisation proscribed by the Indian authorities in the early 1980's. The objective of the organisation is the creation of an independent homeland in the Punjab.In the UK, Chahal was arrested in connection with a conspiracy to kill the then Indian Prime Minister, Rajiv Ghandi, but was subsequently released for lack of evidence. He was convicted for assault and affray in an East Ham gurdwara but the conviction was set aside by the Court of Appeal on account of procedural irregularities.On the basis of Chahal's political activities and the criminal investigations taken against him, a deportation order was served in August 1990 on the ground that Chahal's presence in the UK is not conducive to the public good for reasons of national security and other reasons of a political nature.1As a result of the deportation notice, Chahal was detained in Bedford Prison where he remained until the ruling of the ECHR.An application for asylum was made by Chahal in response to the notice. He claimed that if he was returned to India, he would have a 'well founded fear of persecution'. His application for asylum was turned down by the Home Secretary. Judicial review of the decision was unsuccessful. A noticeable feature of the judicial review proceedings was the inability of the English Courts to review the Home Secretary's decision because it did not have access to evidence relating to the national security threat posed by Chahal.Before the Commission, violations of Articles 3,8,5(1) and 13 were found. The Commission did not find it necessary to examine the complaint under Article 5(4).Article 3 allegationThe first allegation made by Chahal was that deportation by the UK activated state responsibility since he would face a real risk of torture, inhuman or degrading treatment if returned to India. Under the case law, an expulsion can give rise to an Article 3 issue provided there are substantial grounds for believing that the person, if expelled, would face a "real risk" of being ill-treated.2Chahal is an important case because the majority explicitly rejected the argument of the UK government that the guarantee in Article 3 is not absolute and must be balanced with competing interests such as national security where a state is planning to expel or deport an individual. The majority noted that Article 3 enshrines one of the most important values of a democratic society and contains a guarantee which is absolute in expulsion cases.3This meant that the UK could not rely on its national security interest to justify the deportation of Chahal under Article 3.The minority of seven took the view that since this was an extra-territorial or indirect application of Article 3, a balancing exercise should take place.4It is very difficult to accept this view. There is no convincing reason for making a distinction between direct and indirect applications of Article 3. The majority's interpretation of Article 3 more closely accords with its object and purpose.Having decided that no balancing exercise is to take place, the Court went on to apply Article 3 to the facts of the case. As Chahal had not been deported, the material time to assess whether the risk of ill treatment was real, was when the Court considered the case.5The Court heard factual evidence of the conditions that prevailed in India a the time of the hearing. It heard submission from the UK government, Amnesty International, the Indian National Human Rights Commission, United Nations Reports and reports from the United States State Department.After reviewing the factual evidence, the majority concluded that Chahal would face a real risk of ill treatment if deported to India. They noted that there was no concrete evidence of fundamental reform of re-organisation of the Punjab police which had committed numerous human rights violations in the past. Moreover, as Chahal was to be deported to the airport of his choice, the risk of ill treatment was evaluated by reference to the conditions throughout India. The Court noted the extrajudicial killings allegedly perpetrated by the Punjab police outside their home state and that action had been taken by the Indian Supreme Court and other state authorities. The human rights record of security services in India generally was very poor. Consequently, Chahal was at risk wherever he settled in India. Another factor which influenced the Court was the high profile of Chahal in India as a supporter of Sikh separatism which made him more likely to be targeted by Indian security services.The Court had indicated a greater willingness to interfere with the decisions of national authorities. Traditionally the Court has been reluctant to second guess the decisions of national authorities because of their experience and record of dealing with such matters. A good example is Cruz Varas v Sweden6where the applicant was being deported by the Swedish authorities. The ECHR rejected his argument that the deportation would expose him to a real risk of ill treatment by relying on the expertise of the Swedish authorities to handle his claim for asylum.This aspect of Chahal has provoked a strong reaction in Whitehall. The Home Office reacted to the judgment by saying "The Home Secretary and national authorities are better placed to judge what constitutes a threat to national security".7This may be true but it should not mean that the Court must never interfere with the decisions of national authorities. The Court performs a supervisory role and will interfere with decisions of national authorities in order to secure respect for human rights.Some commentators have criticised the protection offered to asylum seekers under Article 3 because the high standard of proof inherent in the test is very difficult for asylum seekers to attain given their lack of resources in relation to the state.8Chahal partially addresses this criticism because although the formulation remains the same it was the first case since Soering where an expulsion has been prevented by virtue of the application of Article 3. This was partly because the Court gave considerable weight to claims made by NGOs, especially Amnesty International, concerning the human rights record of the Punjab.9In contrast, a guarantee from the Indian government did not influence the Court.10Therefore, the Court gave more weight to the evidence of the NGO's than to an assurance from a national government which wasn't a party to the proceedings. This is another important breakthrough because it recognises the role of NGO's in assisting asylum seekers to discharge the high evidential burden which they carry by giving submissions on the conditions in the state of origin.The Court assessed the risk to Chahal in India as a whole. This was because the UK were planning to deport him to the airport of his choice. The implication was that even if Chahal was at risk in the Punjab he could still be deported to another part of India where he was at no risk. This argument was rejected by the majority because extrajudicial killings, allegedly perpetrated by the Punjab police and the inadequate human rights record of the Indian security services, meant Chahal was at risk wherever he landed in India. The Court's analysis recognises a concept known as internal flight alternative to refugee lawyers. In effect, the Court was saying that Chahal did not have a viable internal flight alternative.Article 5(1) decisionChahal argued that his detention pending deportation violated Article 5(1) which guarantees the liberty of the person. His argument was that the detention was not 'in accordance with a procedure prescribed by law' because of its excessive duration as a result of the length of time taken to consider his claim for asylum, judicial review of the actual denial for asylum and the time required for a fresh decision refusing asylum.An exception to the right to asylum exists in Article 5(1)(f), which allows lawful arrest or detention of a person against whom action is being taken with a view to deportation. If the deportation proceedings were executed with due diligence, Article 5(1)(f) would apply and there would be no violation. The majority concluded that there was no violation of Article 5(1). This was due to the serious nature of the interests at stake for the applicant and the public in the administration of justice. It was therefore, important that decisions were not taken hastily without due regard to all the issues and the evidence of the Advisory Panel - a body which considers cases of deportation for national security reasons provided an important safeguard against arbitrariness.However, the reasoning of the majority is far from convincing. The dissenting judgments of the minority are far more persuasive on this issue. Judge de Meyer regarded the period of detention as plainly excessive and that the interests of the applicant may explain the length of the proceedings but could not justify the length of detention. Judges Martin and Palm criticised the majority for holding that the Advisory Panel procedure is an adequate safeguard. They relied on some of the weaknesses of procedure; that the proceedings are not held in public, the applicant is not entitled to legal representation, he/she is only given an outline of the grounds for the notice of intent to deport, the panel has no power of decision and it could not be said that its members are independent of the government. These are strong procedural defects which, coupled with the fact that Chahal had not been convicted of a crime, make the decision of the majority disappointing, in this respect.Articles 5(4) and 13The Court unanimously concluded that Articles 5(4) and 13 had been violated by the UK.Article 5(4) guarantees the right to judicial control of one's detention. The Court held that this guarantee covers the right to judicial review of sufficient width as to bear on conditions essential for lawful detention under Art. 5(1). Domestic courts were not in a position to review whether Chahal's detention was justified on national security grounds because the evidence relating to this issue was not made available to the courts owing to the government's national security interest. Furthermore, the Court attacked the procedural weaknesses of the Advisory Panel which, as a result, could not be considered a court. This conclusion stands uneasily with the finding of the majority under Art. 5(1) that the Advisory Panel procedure was an adequate safeguard against arbitrary detention. The Court also held that the assertion of a national security interest should not free national authorities from effective control by national courts. Consequently, the proceedings in the English courts and the Advisory Panel procedure did not meet the requirements of Article 5(4).The Court considered the right to an effective remedy in conjunction with Article 3. Effective remedy in relation to Article 3 meant independent scrutiny which must be carried out without regard to what the person may have done to warrant expulsion of to any perceived threat to national security of the expressing state.This interpretation was based in the irreversible nature of the harm that might occur if the risk of ill treatment materialised and the importance to be attached to Article 3.11Article 3 was violated because neither the courts nor the Advisory Panel could review the decision to deport with reference solely to the question of risk. The Advisory Panel procedure again received criticism for its inadequacy.The judgment marks a welcome change in the Court's attitude towards national security. In Leander v Sweden,12decided during the Cold War period, the Court gave states a wide margin of appreciation in relation to national security. This would necessarily reduce the adequacy of safeguards in the national security sphere. However, in Chahal, post Cold War, the Court insisted on greater safeguards. For example, the Court stated that national authorities should not be freed from effective judicial control whenever they assert national security and that the notion of effective remedy under Article 13 in conjunction with Article 3 required independent scrutiny with reference solely to risk, irrespective of national security concerns. The change of attitude is also evident in the rejection of the UK's argument that indirect application of Article 3 should require the performance of a balancing exercise.The judgment is also notable in that UK remedies in and judicial treatment of national security issues were attacked. This reflects the substantial academic criticism of the protection afforded to those who are deported for national security reasons.13Historically, English courts have been noted for their pusillanimity in the face of ministerial assertions of national security.14It is to be hoped that English courts are emboldened by the Chahal judgment to require the government to establish the evidential basis of the national security interest.It is unclear what effect the Court's ruling has on the Vilvarajah v UK decision which held that judicial review was an effective remedy in relation to a complaint under Article 3. The Vilvarajah case did not raise a national security issue. In the Chahal case, which did raise national security issues, judicial review was held not to be an effective remedy. The Commission distinguished the two cases on the ground that the power of judicial review was limited in a national security case. However, it is unacceptable to hold that the level of protection should depend on whether a national security interest is asserted. Therefore, it is submitted, that Vilvarajah has been overruled on the issue.Article 8The majority did not consider whether the deportation violated that applicant's right to family life under Article 8 because a violation of Article 3 had ben found.ConclusionIn general, the decision is welcome. Article 3 was applied to prevent a deportation for the first time since Soering. The Court acknowledged the role of the NGO's in assisting asylum seekers to establish sufficient grounds for believing a real risk existed by giving the evidence of Amnesty International more weight than the assurance of protection from the Indian government. This should in future make it easier for asylum seekers to satisfy the evidential requirements. The emphasis on effective judicial control regardless of the State's national security interests is important given the fact that the national security threat posed by Chahal was vague, unspecific and had not been judicially tested. The judgment is not without criticism. For example, the Court's conclusion that the Advisory Panel does not meet the requirements of articles 5(4) and 13 is at odds with their finding that it is an adequate safeguard against arbitrariness under Article 5(1). However, this should not detract from the fact that Chahal v UK is a positive development in terms of the protection of refugees under the Convention.

D V UNITED KINGDOM (EUROPEAN COURT OF HUMAN RIGHTS 1997)2 January, 1997D pled guilty to possession of cocaine while trying to enter the United Kingdom and was sentenced to six years imprisonment. Whilst in prison he was diagnosed with HIV and as suffering from AIDS. Upon his release from prison D was placed in immigration detention pending his removal to St. Kitts. D challenged his removal, arguing that the lack of medical care for AIDS sufferers in St. Kitts violated his right to be free from torture, cruel, inhuman or degrading treatment.The Court noted that every state has the right to control entry, residence and expulsion of non-citizens, but that those actions are limited by the principle of non-refoulement. Central to the Courts decision was the advanced stage of Ds illness. The Court found that an abrupt withdrawal of the care facilities, the lack of adequate facilities in St. Kitts, and the lack of any form of moral or social support in St. Kitts would hasten Ds death and subject him to acute mental and physical suffering. The Court concluded in these exceptional circumstances Ds deportation to St. Kitts would violate the prohibition against non-refoulement.In the case of D. v. the United Kingdom AS TO THE FACTSI. Particular circumstances of the caseA. The applicant6. The applicant was born in St Kitts and appears to have lived there most of his life.He is one of seven children. One sister and one brother moved to the United States inthe 1970s and the rest of the family appears to have followed at unspecified dates. Theapplicant visited the United States in 1989 to try to join his family. During his staythere he was arrested on 5 September 1991 for possession of cocaine andsubsequently sentenced to a three-year term of imprisonment. After one year, he wasparoled for good behaviour and deported on 8 January 1993 to St Kitts.B. The applicant's arrival in the United Kingdom and subsequent imprisonment7. The applicant arrived at Gatwick Airport, London, on 21 January 1993 and soughtleave to enter the United Kingdom for two weeks as a visitor. He was found at theairport terminal to be in possession of a substantial quantity of cocaine with a streetvalue of about 120,000 pounds sterling (GBP). The immigration officer refused himleave to enter on the ground that his exclusion was conducive to the public good andgave him notice that he would be removed to St Kitts within a matter of days.However, after being arrested and charged, the applicant was remanded in custodyand subsequently prosecuted for being knowingly involved in the fraudulent evasionof the prohibition on the importation of controlled drugs of class A. He pleaded guiltyat Croydon Crown Court on 19 April 1993 and was sentenced on 10 May 1993 to sixyears' imprisonment. He apparently behaved well while in H.M. Prison Wayland andwas released on licence on 24 January 1996. He was placed in immigration detentionpending his removal to St Kitts. Bail was granted by an adjudicator on 31 October1996 after the Commission's report had been made public.C. Diagnosis of AIDS8. In August 1994, while serving his prison sentence, the applicant suffered an attackof pneumocystis carinii pneumonia ("PCP") and was diagnosed as HIV (humanimmunodeficiency virus)-positive and as suffering from acquired immunodeficiencysyndrome (AIDS). The infection appears to have occurred some time before hisarrival in the United Kingdom.9. On 3 March 1995, the applicant was granted a period of compassionate leave to bewith his mother whose air fare to the United Kingdom to visit him had been coveredby charitable donations.10. On 20 January 1996, immediately prior to his release on licence, the immigrationauthorities gave directions for the applicant's removal to St Kitts.D. The applicant's request to remain in the United Kingdom11. By letter dated 23 January 1996, the applicant's solicitors requested that theSecretary of State grant the applicant leave to remain on compassionate grounds sincehis removal to St Kitts would entail the loss of the medical treatment which he wascurrently receiving, thereby shortening his life expectancy (see paragraphs 13 and 14below). This request was refused on 25 January 1996 by the Chief ImmigrationOfficer. In his letter of refusal addressed to the applicant's solicitors the ChiefImmigration Officer stated:"In reaching this decision full account was taken of paragraph 4 of the Immigrationand Nationality Department B Division Instructions regarding AIDS and HIV-positivecases. You will be aware that paragraph 4 of this instruction which relates to personswhose applications are for leave to enter the United Kingdom states [see paragraph 27of the judgment below] ... While we are saddened to learn of Mr D[...]'s medicalcircumstances we do not accept, in line with Departmental Policy, that it is rightgenerally or in the individual circumstances of this case, to allow an AIDS sufferer toremain here exceptionally when, as here, treatment in this country is carried out atpublic expense, under the National Health Service. Nor would it be fair to treat AIDSsufferers any differently from others suffering medical conditions ..."E. Judicial review proceedings12. On 2 February 1996, the applicant applied unsuccessfully to the High Court forleave to apply for judicial review of the decision to refuse him leave to enter. On 15February 1996, the Court of Appeal dismissed his renewed application. It found thatsection 3 of the Immigration Act 1971 drew a distinction between leave to enter andleave to remain. It held that the Chief Immigration Officer had correctly treated MrD.'s application as an application for leave to enter and was not required to take intoaccount paragraph 5 of the Home Office guidelines which applied to applications forleave to remain (see paragraphs 27 and 28 below). As to the applicant's argument thatthe Home Office acted unreasonably or irrationally in not acceding to thecompassionate circumstances of his plea, Sir Iain Glidewell stated in his judgment:"Nobody can but have great sympathy for this applicant in the plight in which he findshimself. If he is to return to St Kitts it seems that he will be unable to work because ofhis illness. His expectation of life, if the medical evidence is correct, may well beshorter than it would be if he remained under the treatment that he is receiving in theUnited Kingdom, and in many ways his plight will be great. On the other hand hewould not be here if he had not come on a cocaine smuggling expedition in 1993; andif he had not been imprisoned he would have gone back to St Kitts, if he had evercome here at all, long before his AIDS was diagnosed. Taking account of the fact thatthe Court must give most anxious scrutiny to a decision which involves questionsparticularly of life expectancy, as this one apparently does, nevertheless I cannot findthat an argument in this case that the decision of the Chief Immigration Officer wasirrational is one that has any hope of success at all. Putting it the opposite way, itseems to me to be one which was well within the bounds of his discretion, and thus isnot one with which the Court can properly interfere."F. Reports on the applicant's medical condition, treatment and prognosis13. Since August 1995, the applicant's "CD4" cell count has been below 10. He hasbeen in the advanced stages of the illness, suffering from recurrent anaemia, bacterialchest infections, malaise, skin rashes, weight loss and periods of extreme fatigue.14. By letter dated 15 January 1996, Dr Evans, a consultant doctor, stated:"His current treatment is AZT 250 mgs. b.d. and monthly nebulised pentamidine, heoccasionally takes mystatin pastilles and skin emollients.In view of the fact that [the applicant] has now had AIDS for over 18 months andbecause this is a relentlessly progressive disease his prognosis is extremely poor.In my professional opinion [the applicant's] life expectancy would be substantiallyshortened if he were to return to St Kitts where there is no medication; it is importantthat he receives pentamidine treatment against PCP and that he receives prompt antimicrobialtherapy for any further infections which he is likely to develop ..."15. In a medical report provided on 13 June 1996, Professor Pinching, a professor ofimmunology at a London hospital, stated that the applicant had suffered severe andirreparable damage to his immune system and was extremely vulnerable to a widerange of specific infections and to the development of tumours. The applicant wasreaching the end of the average durability of effectiveness of the drug therapy whichhe was receiving. It was stated that the applicant's prognosis was very poor andlimited to eight to twelve months on present therapy. It was estimated that withdrawalof the proven effective therapies and of proper medical care would reduce thatprognosis to less than half of what would be otherwise expected.G. Medical facilities in St Kitts16. By letter dated 20 April 1995, the High Commission for the Eastern CaribbeanStates informed the doctor treating the applicant in prison that the medical facilities inSt Kitts did not have the capacity to provide the medical treatment that he wouldrequire. This was in response to a faxed enquiry of the same date by Dr Hewitt, themanaging medical officer at H.M. Prison Wayland. By letter of 24 October 1995, DrHewitt informed the Home Office of the contents of the letter from the HighCommission, which had also been sent to the Parole Unit on 1 May 1995. He statedthat the necessary treatment was not available in St Kitts but was widely and freelyavailable in the United Kingdom and requested that due consideration be given tolifting the deportation order in respect of the applicant. By letter dated 1 August 1996,the High Commission for the Eastern Caribbean States confirmed that the position inSt Kitts had not changed.17. By letter dated 5 February 1996, the Antigua and Barbuda Red Cross informed theapplicant's representatives that they had consulted their officer on St Kitts who statedthat there was no health care providing for drugs treatment of AIDS.Results of enquiries made by the Government of the authorities in St Kitts suggestthat there are two hospitals in St Kitts which care for AIDS patients by treating themfor opportunistic infections until they are well enough to be discharged, and that anincreasing number of AIDS sufferers there live with relatives.H. The applicant's family situation in St Kitts18. The applicant has no family home or close family in St Kitts other than, accordingto information provided by the Government, a cousin. His mother, who currently livesin the United States, has declared that her age, bad health and lack of resourcesprevent her from returning to St Kitts to look after her son if he were to be returnedthere. She has also stated that she knew of no relatives who would be able to care forhim in St Kitts.I. The applicant's situation since the adoption of the Commission's report19. When granted bail on 31 October 1996 (see paragraph 7 above) the applicant wasreleased to reside in special sheltered accommodation for AIDS patients provided by acharitable organisation working with homeless persons. Accommodation, food andservices are provided free of charge to the applicant. He also has the emotionalsupport and assistance of a trained volunteer provided by the Terrence Higgins Trust,the leading charity in the United Kingdom providing practical support, help,counselling and legal and other advice for persons concerned about or having AIDS orHIV infection.20. In a medical report dated 9 December 1996 Dr J.M. Parkin, a consultant in clinicalimmunology treating the applicant at a London hospital, noted that he was at anadvanced stage of HIV infection and was severely immunosuppressed. His prognosiswas poor. The applicant was being given antiretroviral therapy with "D4T" and "3TC"to reduce the risk of opportunistic infection and was continuing to be prescribedpentamidine nebulisers to prevent a recurrence of PCP. Preventative treatment forother opportunistic infections was also foreseen. Dr Parkin noted that the lack oftreatment with anti-HIV therapy and preventative measures for opportunistic diseasewould hasten his death if he were to be returned to St Kitts.21. The applicant was transferred to an AIDS hospice around the middle of January1997 for a period of respite care. At the beginning of February there was a suddendeterioration in his condition and he had to be admitted to a hospital on 7 February forexamination. At the hearing before the Court on 20 February 1997, it was stated thatthe applicant's condition was causing concern and that the prognosis was uncertain.According to his counsel, it would appear that the applicant's life was drawing to aclose much as the experts had predicted (see paragraph 15 above).II. Relevant domestic law and practice22. The regulation of entry into and stay in the United Kingdom is governed by Part 1of the Immigration Act 1971. The practice to be followed in the administration of theAct for regulating entry and stay is contained in statements of the rules laid by theSecretary of State before Parliament ("the Immigration Rules").23. Section 3 (1) provides that a person who is not a British citizen shall not enter theUnited Kingdom unless given leave to do so in accordance with the provisions of theAct. Leave to enter may be granted for a limited or for an indefinite period.24. Under section 4 (1) of the Act the power to grant or refuse leave to enter isexercised by immigration officers whereas the power to grant leave to remain in theUnited Kingdom is exercised by the Secretary of State. These powers are exercisableby notice in writing given to the person affected.25. A person, such as the applicant, who has been refused leave to enter but isphysically in the United Kingdom pending his removal and seeks to be allowed tostay there does not fall to be treated as applying for leave to remain. Since no leave toenter had been granted to the applicant, it was right according to the judgment of SirIain Glidewell in R. v. Secretary of State for the Home Department, ex parte D. (Courtof Appeal, 15 February 1996) for the immigration officer to treat his application as anapplication for leave to enter rather than for leave to remain.A. Policy guidelines on how to proceed in cases in which persons seeking to enteror remain in the United Kingdom are suffering from AIDS or are HIV-positive26. The Immigration and Nationality Department of the Home Office issued a policydocument (BDI 3/95) on this subject in August 1995. Paragraph 2 of the guidelinesspecifies that the fact that a person is suffering from AIDS or is HIV-positive is not aground for refusing leave to enter or leave to remain if the person concernedotherwise qualifies under the Immigration Rules. Equally, this fact is not in itself asufficient ground to justify the exercise of discretion where the person concerned hasnot met the requirements of the Rules.The policy guidelines distinguish between applications for leave to enter andapplications for leave to remain.27. On applications for leave to enter (paragraph 4 of the guidelines), where theperson is suffering from AIDS, the policy and practice is to adhere to the provisionsof the Immigration Rules in the normal way. Where such a person does not qualifyunder the Rules, entry is refused.28. On applications for leave to remain (paragraph 5 of the guidelines), the applicationshould be dealt with normally on its merits under the applicable Rules. However,there is a discretion outside the Rules which can be exercised in strong compassionatecircumstances. Paragraph 5.4 states that: "... there may be cases where it is apparentthat there are no facilities for treatment available in the applicant's own country.Where evidence suggests that this absence of treatment significantly shortens the lifeexpectancy of the applicant it will normally be appropriate to grant leave to remain."B. Other relevant materials29. Among the documentary materials submitted by the applicant, are the following.1. International policy statements on human rights and AIDS30. International concern about AIDS has resulted in the adoption of severalinternational texts which have addressed, inter alia, the protection of the human rightsof the victims of the disease. Thus, the United Nations Commission on Human Rightsadopted a resolution on 9 March 1993 on the protection of human rights in the contextof human immunodeficiency virus or acquired immunodeficiency syndrome in whichit called upon"all States to ensure that their laws, policies and practices introduced in the context ofAIDS respect human rights standards".31. At a Summit of Heads of Government or Representatives of forty-two Statesmeeting in Paris on 1 December 1994, a declaration was adopted in which theparticipating States solemnly declared their obligation"to act with compassion for and in solidarity with those with HIV or at risk ofbecoming infected, both within [their] societies and internationally".2. Extract of the WHO report on "Health conditions in the Americas", 1994, VolumeII, concerning St Kitts and Nevis32. "Health and living conditions... there are a number of serious environmental problems, such as inadequate disposalof solid and liquid waste - especially untreated sewage - into coastal lands and waters,resulting in coastal zone degradation, fish depletion and health problems (gastroenteritis)..."33. According to this publication, there are two general hospitals in St Kitts, one with174 beds and the other with 38. There is also a "cottage" hospital with 10 beds. Thereare two homes providing geriatric care.3. "Treatment issues - a basic guide to medical treatment options for people with HIVand AIDS" produced in April 1996 by the Terrence Higgins Trust34. This guide describes the three medical strategies available for treating HIVinfection and AIDS: using anti-HIV drugs which attack HIV itself to delay or preventdamage to the immune system, treating or preventing opportunistic infections whichtake advantage of damage to the immune system and strengthening and restoring theimmune system. Amongst the first category, several drugs can be used, includingAZT (also known as Zidovudine or its tradename Retrovir). This belongs to a familyof drugs called nucleoside analogues which inhibit an enzyme produced by HIVcalled reverse transcriptase (RT). If RT is inhibited, HIV cannot infect new cells andthe build-up of virus in the body is slowed down. However, the existing drugs areonly partially effective and at best can only delay the worsening of HIV-relateddisease rather than prevent it.35. As regards the second category, persons whose immune systems have beensignificantly damaged are vulnerable to a range of infections and tumours known asopportunistic infections. These commonly include cytomegalovirus (herpes virus),Kaposi's sarcoma, anaemia, tuberculosis, toxoplasmosis and PCP. PCP is a form ofpneumonia which in people infected with HIV may affect the lymph nodes, bonemarrow, spleen and liver as well as the lungs. Steps to avoid such infections includetaking care with food and drink and prophylactic treatment by drugs. In the case ofPCP, which was a common cause of death during the first years of the epidemic and isstill one of the commonest AIDS illnesses, options include the long-term taking ofantibiotics such as cotrimoxazole and the use of nebulised pentamidine which isintended to protect the lungs.36. In relation to the third category, treatment which strengthens or restores theimmune system, research has yet to produce any clear results.PROCEEDINGS BEFORE THE COMMISSION37. The applicant lodged his application (no. 30240/96) with the Commission on 15February 1996. He alleged that his proposed removal to St Kitts would be in violationof Articles 2, 3 and 8 of the Convention (art. 2, art. 3, art. 8) and that he had beendenied an effective remedy to challenge the removal order in breach of Article 13 (art.13).The Commission declared the application admissible on 26 June 1996. In its report of15 October 1996 (Article 31) (art. 31), it expressed the opinion that Article 3 (art. 3)would be violated if the applicant were to be removed to St Kitts (eleven votes toseven); that it was unnecessary to examine the complaint under Article 2 (art. 2)(unanimously); that no separate issue arose under Article 8 (art. 8) (unanimously); andthat there had been no violation of Article 13 (art. 13) (thirteen votes to five). The fulltext of the Commission's opinion and of the two separate opinions contained in thereport is reproduced as an annex to this judgment (1)._______________Note by the Registrar1. For practical reasons this annex will appear only with the printed version of thejudgment (in Reports of Judgments and Decisions 1997-III), but a copy of theCommission's report is obtainable from the registry._______________FINAL SUBMISSIONS TO THE COURT38. In their memorial and at the oral hearing the Government requested the Court todecide and declare that the facts disclose no breach of the applicant's rights underArticles 2, 3, 8 or 13 of the Convention (art. 2, art. 3, art. 8, art. 13).The applicant requested the Court in his memorial and at the oral hearing to find thathis proposed removal from the United Kingdom would, if implemented, constitute abreach of Articles 2, 3 and 8 of the Convention (art. 2, art. 3, art. 8) and that he had noeffective remedy in respect of those complaints in breach of Article 13 (art. 13).AS TO THE LAWI. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION (art. 3)39. The applicant maintained that his removal to St Kitts would expose him toinhuman and degrading treatment in breach of Article 3 of the Convention (art. 3),which provides:"No one shall be subjected to torture or to inhuman or degrading treatment orpunishment."A. Arguments of those appearing before the Court1. The applicant40. The applicant maintained that his removal to St Kitts would condemn him tospend his remaining days in pain and suffering in conditions of isolation, squalor anddestitution. He had no close relatives or friends in St Kitts to attend to him as heapproached death. He had no accommodation, no financial resources and no access toany means of social support. It was an established fact that the withdrawal of hiscurrent medical treatment would hasten his death on account of the unavailability ofsimilar treatment in St Kitts. His already weakened immune system would not be ableto resist the many opportunistic infections to which he would be exposed on accountof his homelessness, lack of proper diet and the poor sanitation on the island. Thehospital facilities were extremely limited and certainly not capable of arresting thedevelopment of infections provoked by the harsh physical environment in which hewould be obliged to fend for himself. His death would thus not only be furtheraccelerated, it would also come about in conditions which would be inhuman anddegrading.41. In June 1996, his life expectancy was stated to be in the region of eight to twelvemonths even if he continued to receive treatment in the United Kingdom. His healthhad declined since then. As he was now clearly weak and close to death, his removalby the respondent State at this late stage would certainly exacerbate his fate.2. The Government42. The Government requested the Court to find that the applicant had no valid claimunder Article 3 (art. 3) in the circumstances of the case since he would not be exposedin the receiving country to any form of treatment which breached the standards ofArticle 3 (art. 3). His hardship and reduced life expectancy would stem from histerminal and incurable illness coupled with the deficiencies in the health and socialwelfaresystem of a poor, developing country. He would find himself in the samesituation as other AIDS victims in St Kitts. In fact he would have been returned inJanuary 1993 to St Kitts, where he had spent most of his life, had it not been for hisprosecution and conviction.43. The Government also disputed the applicant's claim that he would be left aloneand without access to treatment for his condition. They maintained that he had at leastone cousin living in St Kitts and that there were hospitals caring for AIDS patients,including those suffering from opportunistic infections (see paragraph 17 above).Even if the treatment and medication fell short of that currently administered to theapplicant in the United Kingdom, this in itself did not amount to a breach of Article 3standards (art. 3).44. Before the Court the Government observed that it was their policy not to remove aperson who was unfit to travel. They gave an undertaking to the Court not to removethe applicant unless, in the light of an assessment of his medical condition after theCourt gives judgment, he is fit to travel.3. The Commission45. The Commission concluded that the removal of the applicant to St Kitts wouldengage the responsibility of the respondent State under Article 3 (art. 3) even thoughthe risk of being subjected to inhuman and degrading treatment stemmed from factorsfor which the authorities in that country could not be held responsible. The risk wassubstantiated and real. If returned, he would be deprived of his current medicaltreatment and his already weakened immune system would be exposed to untreatableopportunistic infections which would reduce further his limited life expectancy andcause him severe pain and mental suffering. He would be homeless and without anyform of moral, social or family support in the final stages of his deadly illness.B. The Court's assessment46. The Court recalls at the outset that Contracting States have the right, as a matter ofwell-established international law and subject to their treaty obligations including theConvention, to control the entry, residence and expulsion of aliens. It also notes thegravity of the offence which was committed by the applicant and is acutely aware ofthe problems confronting Contracting States in their efforts to combat the harmcaused to their societies through the supply of drugs from abroad. The administrationof severe sanctions to persons involved in drug trafficking, including expulsion ofalien drug couriers like the applicant, is a justified response to this scourge.47. However, in exercising their right to expel such aliens Contracting States musthave regard to Article 3 of the Convention (art. 3), which enshrines one of thefundamental values of democratic societies. It is precisely for this reason that theCourt has repeatedly stressed in its line of authorities involving extradition, expulsionor deportation of individuals to third countries that Article 3 (art. 3) prohibits inabsolute terms torture or inhuman or degrading treatment or punishment and that itsguarantees apply irrespective of the reprehensible nature of the conduct of the personin question (see, most recently, the Ahmed v. Austria judgment of 17 December 1996,Reports of Judgments and Decisions 1996-VI, p. 2206, para. 38; and the Chahal v. theUnited Kingdom judgment of 15 November 1996, Reports 1996-V, p. 1853, paras.73-74).48. The Court observes that the above principle is applicable to the applicant'sremoval under the Immigration Act 1971. Regardless of whether or not he everentered the United Kingdom in the technical sense (see paragraph 25 above) it is to benoted that he has been physically present there and thus within the jurisdiction of therespondent State within the meaning of Article 1 of the Convention (art. 1) since 21January 1993. It is for the respondent State therefore to secure to the applicant therights guaranteed under Article 3 (art. 3) irrespective of the gravity of the offencewhich he committed.49. It is true that this principle has so far been applied by the Court in contexts inwhich the risk to the individual of being subjected to any of the proscribed forms oftreatment emanates from intentionally inflicted acts of the public authorities in thereceiving country or from those of non-State bodies in that country when theauthorities there are unable to afford him appropriate protection (see, for example, theAhmed judgment, loc. cit., p. 2207, para. 44).Aside from these situations and given the fundamental importance of Article 3 (art. 3)in the Convention system, the Court must reserve to itself sufficient flexibility toaddress the application of that Article (art. 3) in other contexts which might arise. It isnot therefore prevented from scrutinising an applicant's claim under Article 3 (art. 3)where the source of the risk of proscribed treatment in the receiving country stemsfrom factors which cannot engage either directly or indirectly the responsibility of thepublic authorities of that country, or which, taken alone, do not in themselves infringethe standards of that Article (art. 3). To limit the application of Article 3 (art. 3) in thismanner would be to undermine the absolute character of its protection. In any suchcontexts, however, the Court must subject all the circumstances surrounding the caseto a rigorous scrutiny, especially the applicant's personal situation in the expellingState.50. Against this background the Court will determine whether there is a real risk thatthe applicant's removal would be contrary to the standards of Article 3 (art. 3) in viewof his present medical condition. In so doing the Court will assess the risk in the lightof the material before it at the time of its consideration of the case, including the mostrecent information on his state of health (see the Ahmed judgment, loc. cit., p. 2207,para. 43).51. The Court notes that the applicant is in the advanced stages of a terminal andincurable illness. At the date of the hearing, it was observed that there had been amarked decline in his condition and he had to be transferred to a hospital. Hiscondition was giving rise to concern (see paragraph 21 above). The limited quality oflife he now enjoys results from the availability of sophisticated treatment andmedication in the United Kingdom and the care and kindness administered by acharitable organisation. He has been counselled on how to approach death and hasformed bonds with his carers (see paragraph 19 above).52. The abrupt withdrawal of these facilities will entail the most dramaticconsequences for him. It is not disputed that his removal will hasten his death. Thereis a serious danger that the conditions of adversity which await him in St Kitts willfurther reduce his already limited life expectancy and subject him to acute mental andphysical suffering. Any medical treatment which he might hope to receive there couldnot contend with the infections which he may possibly contract on account of his lackof shelter and of a proper diet as well as exposure to the health and sanitationproblems which beset the population of St Kitts (see paragraph 32 above). While hemay have a cousin in St Kitts (see paragraph 18 above), no evidence has beenadduced to show whether this person would be willing or in a position to atten