Arrest of a U.S. Citizen

The State Department is committed to ensuring fair and humane treatment for U.S. citizens imprisoned overseas. We assist incarcerated citizens and their families within the limits of our authority, in accordance with international, U.S., and Philippine laws. We monitor conditions in foreign prisons and protest allegations of abuse against U.S. citizen prisoners. We work with prison officials to seek treatment consistent with internationally recognized standards of human rights and due process.

This information is provided for U.S. citizens who have been arrested or are facing arrest and imprisonment in the Philippines. Please note, a U.S. Embassy duty officer is always available for emergency assistance. During normal working hours the U.S. Embassy’s American Citizen Services section is available to assist in all matters relating to the arrest of a U.S. citizen. After hours the U.S. Embassy duty officer can be reached at +63 (02) 301-2000.

The Philippines is a party to the Vienna Convention on Consular Relations, a multilateral treaty which provides that consular officers and their nationals may communicate with and have access to each other. An Embassy officer will visit a U.S. citizen incarcerated in the Philippines, to ensure that he/she is receiving appropriate treatment, to provide a list of local attorneys, and to provide information on the Philippine judicial system.

While in the Philippines, a U.S. citizen is subject to Philippine laws and regulations, which sometimes differ significantly from those in the United States and may not provide the same protections available in the United States. 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 in the Philippines are strict, and convicted offenders can expect jail sentences and fines. A citizen arrested in the Philippines must go through the Philippine legal process to be charged or indicted, prosecuted, convicted and sentenced, and for any appeals.

The United States Government cannot arrange for a U.S. citizen to be released from a jail or prison.

U.S. citizenship does not entitle anyone to special privileges in the Philippine legal system. The U.S. Embassy does not have authority to intervene in the Philippine justice system and cannot act as a legal representative or provide legal advice to U.S. citizens.

The Role of the Consular Officer

While there are definite limits on the role they can play, Consular officers can provide a wide variety of services to U.S. citizens who are incarcerated in the Philippines.

A consular officer may do the following:

  • Visit an arrested U.S. citizen in jail after being notified of the arrest, to check on the prisoner’s treatment by law enforcement authorities and to monitor the state of his/her health and well-being.
  • On request of the prisoner, notify family and friends regarding the situation, and relay requests for financial or other aid.
  • Provide information about judicial procedures in the Philippines.
  • Provide a list of local attorneys. (Note: The consular officer cannot help to select an attorney from the list, nor can the officer provide legal advice.)
  • Work to facilitate communications with family, friends, and legal counsel, subject to local law and regulations.
  • Work to ensure that the individual’s basic rights under local law are protected and that he/she is treated humanely in accordance with internationally accepted standards.
  • Follow the progress of the individual’s case in the judicial system.
  • Visit an incarcerated U.S. citizen regularly and report on those visits to the Department of State.
  • Arrange for medical, dental, and dietary care, if not provided by prison, to be paid for from prisoner’s funds; funds provided by family; or, if applicable and subject to conditions, funds loaned to the prisoner by the U.S. government under the Emergency Medical/Dietary Assistance (EMDA) program for destitute U.S. citizens incarcerated abroad.
  • With concurrence from the State Department in Washington DC, protest any mistreatment by local officials while incarcerated.
  • Facilitate any goods (holiday meals, reading materials, etc.) donated from the local community to prisoners, subject to local laws and regulations.

A consular officer cannot:

  • Demand the immediate release of a U.S. citizen arrested in the Philippines, or otherwise cause the citizen to be released.
  • Represent a U.S. citizen at trial, give legal advice or pay legal fees and/or fines with U.S. Government funds.
  • Intervene in the Philippine judicial system.
  • Identify and/or contract an attorney to represent the individual before the court.

The Embassy encourages U.S. citizens facing arrest to 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. The U.S. citizen may wish to choose an attorney from among those on the list of local attorneys the Embassy has prepared, or hire any other attorney. The Embassy encourages the U.S. citizen to establish clear-cut terms as to fees and the extent of legal services required.

The Embassy does not have staff attorneys to protect the legal interests of U.S. citizens abroad. An individual must be prepared to pay an attorney from personal funds. If an accused individual cannot afford the services of a private attorney, the court will appoint one for him/her, but in practice, many of the court-appointed counsels do not devote as much time and effort in pursuing their cases as those whose clients are paying the fees charged. The Embassy recommends that an accused U.S. citizen hire a competent, private attorney if possible.

The Arrest Report

The Embassy must report the arrest of a U.S. citizen to the Department of State in Washington as soon as possible after receiving notification of the arrest. An Embassy officer is always on duty and the consular officer (or duty officer after hours) will make every effort to visit an arrested U.S. citizen promptly to assess his/her 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.). The officer will ask the U.S. citizen to sign a release under the provisions of the Privacy Act of 1974 to enable the Embassy to release the information to the citizen’s family, friends, and members of Congress or journalists. Under the Privacy Act, the Department of State is prohibited from releasing information to the public without the individual’s consent.

Arrest; Investigation; Trial; Appeal; Imprisonment

Experience has shown that arrests and trials in the Philippines are often unpredictable. Significant deviations from prescribed procedures do occur, arrestees are often not given clear information about procedures and charges, and allegations of corruption are common. While the Embassy will attempt to address egregious violations of basic rights, an individual’s private legal counsel should address procedural issues through the legal process. Embassy officials can request information or clarifications in certain instances.  However, Embassy officials cannot intervene with judicial officials, interfere with the normal judicial process, or investigate allegations of corruption or other official misconduct.

Arrest

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 an individual is arrested by the Philippine National Police (PNP) in the act of committing a crime, no warrant of arrest is necessary.
  • If an individual is the subject of a complaint, the police may either secure a warrant from a judge, or invite the individual to the police station for questioning.
  • If an individual has been arrested under a warrant, the police should advise him/her of the charges pending at the time of the arrest.
  • If the police invite an individual only for questioning, they will attempt to determine whether the complaint has legitimacy. They will then decide either to release the person, or to detain him/her until appropriate charges in court are filed against him/her.

In each situation, police will question the individual, and may ask the individual to sign a statement under oath. According to Philippine law, the individual must be assisted by a lawyer throughout this process.

An individual whose possessions and/or documents are confiscated by police should ask for a receipt for the items removed from his/her custody.

Preliminary Investigation

If someone has been arrested without a warrant, 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 within twelve hours of an arrest for a minor offense or within 36 hours for serious offenses. Absent such charges, the Prosecutor is obliged to release the subject.

If someone has 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, the Prosecutor will make a recommendation for dismissal of the charges.

Bail

After an arrest, an individual’s 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. In such circumstances, an arrested party may not be released from detention.

Arraignment

The judge will set the case for arraignment, during which the individual will be informed of the charges against him/her and the right to be represented by counsel. The accused will then be asked to enter his/her plea.

If an individual pleads guilty, he or she may be sentenced immediately, or the judge may elect to hear the case further to determine the appropriate punishment, taking into account any aggravating and mitigating factors. If an individual pleads not guilty, the judge will schedule a hearing to decide the case on its merits.

Pre-Trial and Trial

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 its evidence to substantiate the charges, and the defense follows with information to refute the charges. 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 make a decision in favor of the complainant or the defendant.

Litigation in the Philippines 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, and to ensure that he/she will be present at all court sessions.

Sentencing

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 an individual is acquitted, he/she will be released from detention. If the person is already free on bail, the judge will order that the bail be returned to him/her. If found guilty, an individual will be committed to prison to begin serving his/her sentence. Time spent in jail prior to sentencing may count toward completion of the sentence and in calculating the date of release.

Appeal

A convicted party may appeal the decision, sending the case for review by a higher court. (Note: Cases involving capital offenses are automatically appealed to the Supreme Court.) The higher court will render its judgment 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. As a general rule, the higher the level of the court, the longer adjudication of appeals can be expected to take.

Imprisonment

Whether in detention after arrest, or serving a prison term upon conviction, U.S. citizens should be prepared to face the realities of what are by U.S. standards inadequate facilities, poor food, and deficient sanitation in prisons in the Philippines. An incarcerated U.S. citizen is encouraged to provide the Embassy with the names of family or friends who may offer financial assistance, to allow for the purchase of dietary supplements and basic necessities like soap and toothpaste. The Embassy can help the individual to arrange for remittances to be sent through the Embassy to ensure that the money is delivered securely.

Although prison mail is subject to censorship, U.S. citizen detainees are entitled to write to the consular officer. And since the consular officer makes periodic visits to U.S. citizen detainees, they may discuss with him/her any problems arising from their confinement. The consular officer or local civic organizations can help prisoners to obtain reading material.

Pardons and Clemency

Depending on the gravity of the offense, how much of the sentence has been served, and the inmate’s conduct in prison, the Board of Pardons and Parole may recommend a prisoner to the President of the Philippines for executive clemency. In the event of a pardon, the inmate will be deported upon release. Usually, pardoned prisoners will have served one-third of their sentence before a pardon request will be considered. When pardon is imminent, an inmate should identify to the consular officer family and/or friends who may be able to assist him/her in financing return transportation to the United States. The consular officer will try to contact such individuals and assist in arranging the U.S. citizen’s repatriation 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 the U.S citizen depart the Philippines within 30 days, at no expense to the Philippine Government, and that he/she never return to the Philippines. Currently, pardons and clemency are not available for drug-related offenses.

Drug Cases

Drug offenses in the Philippines carry stiff penalties. Life sentences for drug cases are common. Drug offenders are generally arrested by operatives of the Philippine National Police Narcotics Command (PNP/NARCOM), and, until granted bail (which is not allowed in all cases), they remain in the custody of NARCOM and generally are confined to the rehabilitation center at Camp Bicutan, in Taguig, Rizal. In drug cases where the amount found is more than 40 grams, bail may not be available.

Under the Philippines’(amended) Dangerous Drugs Act (1982), the penalty for the use or possession of 750 grams or more of marijuana is 20-40 years in prison. The possession or use of prohibited drugs in the amount of 40 grams or more, such as opium, heroin, cocaine, or hallucinogens, also carries a penalty of 20-40 years in prison.

Immigration and Deportation Cases

The Philippine Bureau of Immigration and Deportation (BID) is charged with determining the admission, and length of stay, of foreigners in the Philippines. BID officials are granted wide discretion in the execution of their duties. Most U.S. citizen visitors are granted a 21-day visa upon arrival, unless a visa has been arranged beforehand from a Philippine Embassy or Consulate. Foreigners who are found to have violated immigration rules may be imprisoned and subsequently deported at the discretion of BID.

Since Immigration offenses are considered administrative in nature, they are not treated as criminal violations. Normal Philippine rules of due process and procedure may not apply in all cases. Some immigration violations, such as overstays, may be remedied by paying a fine, but BID does not allow this 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. The Bureau may charge a foreigner in this situation with being an “undesirable alien,” a category that includes a broad range of criminal offenses. The foreigner need not be convicted of the underlying crimes; in most cases, the “undesirability” charge stems from existing criminal or civil cases or merely suspected criminal activity in the Philippines or abroad.

The end result of immigration charges is deportation. A foreigner cannot be deported until the underlying cases pending in Philippine courts have been decided – often a matter of months or years. In addition, a foreigner may still be deported even if acquitted of the charges against him/her. Note that, unlike judicial cases in which bail is often considered a right, bail in immigration cases is not considered a right and is granted solely at the discretion of the Commissioner of Immigration.

Final Remarks

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 U.S. citizens understand the basic procedures of 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 American Citizen Services section of the Embassy, telephone no. +63 (02) 301-2000 ext. 2246 or 2567.