Arrest and Imprisonment in the Philippines

Arrest and Imprisonment in the Philippines

Introduction
The Role of the US Government in Arrest Cases
The Role of the Consular Officer
The Arrest Report
Arrest, Investigation, and Trial
Imprisonment
Immigration Offenses and Deportation
Pardons and Clemency
Attorneys and Legal Representation

Introduction

The following information is provided for American citizens who have been arrested or are facing arrest and imprisonment in the Philippines. Under international agreements between the Government of the Philippines and the Government of the United States, police authorities are required to notify the Embassy of your arrest in a timely manner. To avoid any possibility of an oversight, however, you should, if possible, personally report your arrest. An Embassy duty officer is always available for emergency assistance and can be reached at tel. No. (63) (2) 301-2000. During normal working hours you should call the Embassy's American Citizen Services section (tel. No. (63) (2) 301-2000 ext. 2246/2555) to report your arrest or to seek assistance.

The Philippines is a party to the Vienna Convention on Consular Relations, a multilateral treaty which provides that consular officers shall be free to communicate with their nationals and to have access to them. An Embassy officer will visit you to ensure that you are receiving appropriate treatment, give you a list of reputable local attorneys, arrange, if you wish, to contact family, friends, or representatives, and provide information on the Philippine system of arrest and imprisonment.

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One of the most essential tasks of the Department of State and of U.S. embassies and consulates abroad is to provide assistance to U.S. citizens incarcerated abroad. The State Department is committed to ensuring fair and humane treatment for American citizens imprisoned overseas. We stand ready to assist incarcerated citizens and their families within the limits of our authority, in accordance with international law. We can and do monitor conditions in foreign prisons and immediately protest allegations of abuse against American prisoners. We work with prison officials to ensure treatment consistent with internationally recognized standards of human rights and to ensure that Americans are afforded due process under local laws.

While in a foreign country, a U.S. citizen is subject to that country's laws and regulations, which sometimes differ significantly from those in the United States and may not afford the protections available to the individual under U.S. law. Penalties for breaking the law can be more severe than in the United States for similar offenses. Persons violating the law, even unknowingly, may be expelled, fined, arrested, or imprisoned. Penalties for possession, use, or trafficking in illegal drugs are strict, and convicted offenders can expect jail sentences and fines. A citizen arrested abroad must go through the foreign legal process for being charged or indicted, prosecuted, possibly convicted and sentenced, and for any appeals process. Within this framework, U.S. consular officers provide a wide variety of services to U.S. citizens arrested abroad and their families.

Neither the United States Government nor its representative, an American Consular officer, can arrange for your release from jail or prison. A United States passport does not entitle you to any special privileges and, while in the Philippines, you are subject to the same laws as is a Philippine citizen. You should not expect, and will not receive, preferential treatment because of your nationality. The U.S. Embassy can and does intercede on behalf of Americans imprisoned in the Philippines, but there are definite limits on what it can do to help in any given situation. Nevertheless, neither arrest nor conviction deprives you, as an American citizen, of your entitlement to assistance from a consular officer to protect your basic legal rights under Philippine (not U.S.) law.

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Consular officers provide a wide variety of services to U.S. citizens incarcerated abroad. Specific services vary depending on local laws and regulations, the level of local services available in the country in question, and the circumstances of the individual prisoner. The frequency of U.S. consular visits to citizens arrested abroad may likewise vary, depending upon circumstances. A consular officer may do the following:

The Embassy must report your arrest to the Department of State in Washington as soon as notification of the arrest is received. Under the Vienna Convention and Bilateral Agreements between the Philippines and the United States, the police are required to notify the Embassy of your arrest in a timely manner. Unless you are certain that they have in fact done so, you should personally and expeditiously advise the Embassy that you have been arrested. An Embassy officer is always on duty and the Consular officer (or duty officer after hours) will make every effort to visit you promptly to assess your personal welfare.

The officer will also obtain data for the arrest report (i.e., passport information, next-of-kin, details of your arrest, possible sentence, etc.). You will be asked to sign a release under the provisions of the Privacy Act of 1974 to enable the consul to release the information to your family, friends, and members of Congress or journalists. Should you indicate that you do not wish to notify anyone, the Embassy and the Department of State will respect your wish.

Under Philippine law, police officers and private citizens can arrest a person who has committed, is in the act of committing, or is about to commit a crime. If you are arrested by the Philippine National Police (PNP) in the act of committing a crime, no warrant of arrest is necessary. If you are the subject of a complaint, the police may either secure a warrant of arrest from a judge, or invite you to the police station for questioning. If you have been arrested under a warrant, the police should advise you of the charges against you at the time of your arrest.

Alternatively, if the police invite you only for questioning, they will attempt to determine whether the complaint has legitimacy. They will then decide either to release you or detain you until appropriate charges in court are filed against you. In each case, you will then be questioned and may be asked to sign a statement under oath. According to Philippine law, your lawyer must be present throughout this process. The Embassy recommends that you refuse to make or sign any statement if your legal counsel is not present. You should also request receipts for money, possessions or documents (including your passport) which are confiscated. Preliminary Investigation: After a warrantless arrest, the arresting officer will submit the evidence to the Prosecutor (formerly known as a Fiscal) who will conduct a preliminary investigation to determine whether the available evidence merits the filing of formal charges. Evidence, in this case, may include testimony, complaints, and other sworn statements. The Prosecutor is required to file charges against you within twelve hours of an arrest for a minor offense like "oral defamation" or "slander," or within 36 hours for serious offenses like "fraud, robbery, or rape," or to release you.

If you have been arrested with a warrant, the Prosecutor will determine if probable cause exists and the execution of the arrest was proper. The Prosecutor then has 60 days to file the charges with the appropriate court. However, if the evidence presented by the police is not strong or sufficient to hold you, the Prosecutor can make a recommendation for your discharge and the dismissal of the charges.

After your arrest, your lawyer or another representative may file for bail. Any person under custodial detention, or who has been arrested and has been formally charged with an offense is entitled to bail. Since it is a matter of right, payment of bail entitles the accused to temporary liberty. With certain grave offenses, such as violent crimes, rape and drug-related crimes, bail is not a matter of right if evidence of guilt is strong and you may not be released from detention. Immigration violations committed by foreigners are not bailable offenses.

The judge will set the case for arraignment during which you will be informed of the charges against you and your right to be represented by counsel. You will then be asked to enter your plea.

If you plead Guilty, the judge can sentence you immediately, or hear the case further to determine the appropriate punishment, taking into account any aggravating and mitigating factors. If you plead Not Guilty, the judge will schedule a hearing to weight the merits of the case.

The pre-trial stage in criminal cases is not mandatory for the accused and consists largely of establishing evidence, objecting to evidence or procedures, and determining facts. In the trial stage, the prosecution presents their evidence substantiating the charges, followed by the presentation of the facts by the defense. Both sides are entitled to a rebuttal of the initial evidence (no other evidence can be admitted at this stage) before the trial ends. The presiding judge in the case will find for the complainant or the defendant.

You should be aware that, as in the United States and elsewhere in the world, litigation can be a protracted affair - cases have been known to drag on for months and even years. Hearings are routinely postponed, delayed or rescheduled. The best way to minimize such delays is to hire an effective private attorney. However, lawyers may not attend hearings if they have not received payment for their services. Ensure that your lawyer will be present at your hearing.

After the parties submit the case for decision, the judge will notify them, through their attorneys, when the decision is to be announced. The parties are required to be present at the reading of the sentence. If you are acquitted, you will be released from detention. (If you are already free on bail, the judge will order that the bail should be returned to you). If the judge finds you guilty, and you do not signify intent to appeal the decision, you will be committed to prison to serve your sentence. Time spent in jail prior to sentencing may be counted toward the sentence and in estimating the date of your release.

Should you appeal the decision, the case will be reviewed in a higher court (cases involving capital offenses are automatically appealed to the Supreme Court). The court will render its judgement and return the case to the lower court for reading of the decision. As in the United States, courts of appeal review findings of law, not findings of fact. Therefore, evidence or testimony admitted as fact into a lower court cannot be overturned or changed in an appeal. The highest tribunal in the Philippines to which cases may ultimately be appealed is the Supreme Court. The higher the level of the court, the longer adjudication of appeals can be expected to take. Inmates are not eligible for parole if there is an open appeals case with the courts.

Because of the incidence of violations of the Dangerous Drugs Act of the Philippines, it is necessary that Americans facing drug charges understand that stiff penalties are meted out to offenders. It is not correct to assume, as many do, that the worst punishment an American can receive for such a violation is deportation. Offenders are generally arrested by operatives of the Philippine National Police Narcotics Command (PNP/NARCOM), and until granted bail (this is not allowed in all cases), they remain in the custody of NARCOM and generally are confined in the rehabilitation center at Camp Bicutan, in Taguig, Rizal. In some drug cases where the amount found is more than 40 grams, bail may not be available.

Under the amended Dangerous Drugs Act (1982), the penalty for the use or possession of 750 grams or more of Marijuana is reclusion perpetua (20-40 years) to death. The possession or use of prohibited drugs in the amount of 40 grams or more, such as opium, heroin, cocaine, or hallucinogens, carries a penalty of reclusion perpetua to death, plus immediate deportation after the completion of the sentence.As of now, there is a moratorium of undefined length on executions.

Whether you are in detention after arrest, or serving a prison term upon conviction, you should be prepared to face the realities of what are by American standards inadequate facilities, poor food, and deficient sanitation in prisons. You should provide the Embassy with the names of family or friends for financial assistance to enable you to buy dietary supplements and basic necessities like soap and toothpaste. The Consul can help you arrange for remittances to be sent so as to ensure that the money reaches you intact.

Although prison mail is subject to censorship, American detainees can write to the Consul. And since the Consul makes periodic visits to American detainees in the Manila consular district, they may discuss with a consular officer problems arising from their confinement. The Consul or local civic organizations can help prisoners to obtain reading material.

The Philippine Bureau of Immigration (BI) is charged with determining the admission, and length of stay, of foreigners in the Philippines. Like the Bureau of Citizenship and Immigration Service in the United States, BI officials are granted wide discretion in the execution of their duties. Most American visitors are granted a 21-day visa upon arrival. (For information on other visas for work or longer stay, please consult our Philippine Immigration page.) Foreigners who are found to have violated immigration rules may be imprisoned and ultimately deported. Since Immigration offenses are considered administrative in nature, they are not treated as criminal violations. This means that the normal rules of due process and procedure may not apply in all cases. Some overstays may be remedied by paying a fine, but this is not allowed in every case. Often, foreigners facing criminal charges in other jurisdictions are arrested and held by the Bureau of Immigration even if they have been granted bail by the trial court where their cases are being heard. Foreigners in this situation are often charged with being "undesirable," a category describing a broad range of offenses. The foreigner need not be convicted of these crimes; in most cases, the "undesirability" charge stems from existing criminal or civil cases or suspected criminal activity in the Philippines or abroad. The end result of immigration charges is deportation. A foreigner cannot be deported until the original cases pending in Philippine courts have been decided. In addition, a foreigner may still be deported even if they have been acquitted of the charges against them. Note: Unlike judicial cases where bail, with the exception of certain cases, is considered a right, bail in immigration cases is not considered a right and is granted at the discretion of the Commissioner of Immigration (although this discretion is subject to judicial review). Many foreign residents choose to evade Immigration provisions by seeking alternative methods to prolong their stay, such as arranging for false stamps to be placed in their passport by Bureau of Immigration officials or their intermediaries. While common, this practice is illegal and should be avoided-moreover, it may result in eventual deportation, if discovered. Once deported, the right to re-enter the Philippines is often revoked for life.

Depending on the gravity of your offense, how much of your sentence has been served, and your conduct in prison, the Board of Pardons and Parole may recommend you to the President of the Philippines for executive clemency. In the event you are pardoned, deportation necessarily follows. Commonly, pardoned prisoners have served one-third of their sentence before a pardon request will be considered. When pardon is imminent, you should inform the Consul whom among your family and friends may be able to assist in providing return transportation to the United States. The Consular officer will try to contact such individuals and will assist you in arranging your return according to the terms of the pardon, usually within a 30-day period. Experience shows that all pardons have been conditional, the condition being that you leave the Philippines within 30 days, at no expense to the Philippine Government, and that you never return to the Philippines. Currently, pardons and clemency for drug-related offenses have been suspended.

At the time of arrest, you should engage the services of a local attorney. An attorney entitled to practice in the courts in the Philippines has the right to confer privately with the person arrested, in the jail or in any other place of custody, at any time of the day or, in urgent cases, at night. You may choose from among those listed the Embassy's list, or hire any other attorney. From the beginning, you and your attorney should establish clear-cut terms as to fees, extent of legal services required, etc.

Very often Americans expect the Embassy to provide them with an Embassy attorney to protect their interests. There is no provision for this type of service. If you become involved in litigation, you should be prepared to pay your attorney from your own personal funds. In cases where you face charges and cannot afford the services of a private attorney, the court will appoint one for you, but in practice, many of the court-appointed counsels do not devote as much time and effort in pursuing their cases as those where the client is willing and able to pay the fees charged. The Embassy recommends that you hire a competent, private attorney if at all possible. If you plan to stay in the Philippines for an extended period, or plan to engage in legal business operations, the Embassy recommends that you establish a relationship with a reliable attorney at the beginning of your residence. This step will enable you to work closely and more effectively with your legal counsel should you require emergency legal services. For more information, please consult our legal assistance page.

This information sheet does not encompass the entire range of matters under the Philippine judicial system. It is meant only to serve as an unofficial guide to help Americans understand the procedures laid down by the laws and regulations of the Republic of the Philippines, as they relate to arrests and the trial of criminal cases. If you require additional information, you may contact the Special Consular Services Unit of the Embassy, telephone no. 301-2000 ext. 2246 or 2567.