Philippine court rejects transfer of convicted US Marine (Roundup)

Dec 13, 2006, 17:17 GMT

Manila - A Philippine court rejected on Wednesday an appeal by the US Embassy to take custody of a US Marine convicted of rape and sentenced to life in prison in the country, ignoring the government's stand in favour of the request.

The embassy was seeking the custody of Lance Corporal Daniel Smith, 21, the first US military personnel to be convicted of a major crime in the Philippines, while his conviction is on appeal.

It invoked a security pact between the Philippines and the US, which stipulates that the custody of American personnel would remain with the US 'until the completion of all judicial proceedings.'

On December 4, Smith was found guilty of raping a drunken Filipino woman inside a van in Olongapo City, 90 kilometres north of Manila, in November last year.

Justice Secretary Raul Gonzalez agreed with the US Embassy position and filed its own pleadings urging Makati Regional Trial Court Judge Benjamin Pozon to allow the embassy to take custody of Smith until the conviction becomes final.

But Pozon ruled that Smith will remain at the Makati City jail in metropolitan Manila until such time the US and Philippine governments agree on which facility in the country the convict would serve his 40-year sentence.

Pozon said the provision cited by the US Embassy did not apply to the case since a judgment had already been rendered by his court.

'The custody of Smith by the US military authorities was terminated after the completion of the trial and the rendition of judgment of conviction,' he said in a six-page decision.

Pozon lambasted Gonzalez and Chief State Prosecutor Jovencito Zuno for entering into an agreement with US Ambassador Kristie Kenney that would allow Smith to stay inside the embassy premises pending resolution on his appeal.

'For one thing, neither Secretary Gonzalez nor Chief State Prosecutor Zuno is the appropriate Philippine authority who can legally enter into such an agreement,' he said. 'The said function legally belong to the President of the Philippines or the Secretary of the Department of Foreign Affairs.'

Gonzalez, however, maintained that Pozon erred in his decision not to allow the US take custody of Smith as he vowed to continue fighting the issue until it reaches the Supreme court.

'We will support the American position,' he said. 'That is our commitment. That is our treaty obligation and we have to comply with a treaty obligation.'

Eduardo Malaya, spokesman for the Department of Foreign Affairs (DFA), said the government will continue to explore ways that would allow the US to have custody of Smith.

'Together with the Department of Justice and other concerned government agencies, the DFA will continue to explore remedies available in order for the Philippines to be in compliance with its treaty obligations,' he said in a statement.

The US Embassy said Pozon's decision 'reflects a misunderstanding of the nature of Philippine obligations under the terms of the Visiting Forces Agreement during judicial proceedings.'

'An appeal is being filed in the appropriate court seeking to return Lance Corporal Daniel Smith to US military custody at the US Embassy,' it said in a statement.

Smith was one of thousands of American soldiers who participated in a joint military exercises in the Philippines last year.

Smith's three other co-accused - Lance Corporals Keith Silkwood and Dominic Duplantis and Staff Sergeant Chad Carpentier - were acquitted due to lack of evidence.

The three acquitted American soldiers immediately flew back to the US military base in Okinawa, Japan, a few hours after their acquittal.