2. If extradition is granted in the case of a person who is being proceeded against or is serving a sentence in the Requested State, such State may, in exceptional cases, temporarily surrender the person sought to the Requesting State exclusively for the purpose of prosecution. The person so surrendered shall be kept in custody in the Requesting State and shall be returned to the Requested State after the conclusion of the proceedings against that person, in accordance with conditions to be determined by agreement of the Contracting States. (my emphasis.)
What makes Joran Van der Sloot's case exceptional to warrant the invocation of this section of the treaty? I can't think of anything.
Does Joran get credit once back in Peru for the time spent in the U.S.? It seems unlikely, and I once looked it up, but I don't remember now.
If convicted in the U.S., does he get to remain here while he appeals? It would seem he gets to stay for the appeals process, since the proceedings aren't final until he has exhausted his appeals -- and possibly a federal habeas after that. He could be here for years.
Given the prison conditions in Peru, Joran may prefer to be incarcerated here for as long as possible, if the time he spends here is credited against his sentence in Peru and doesn't delay his parole eligibility date there. ( Although CBS quotes his lawyer as saying "his client fears extradition because U.S. prisons have a reputation for being "very hard" on inmates." )
If the time isn't credited, I think Joran may want to return to Peru as soon as possible. As I wrote here when he was sentenced, under Peruvian law, he is eligible for parole after serving 1/3 of his Peruvian sentence. In addition, he can get extra time off for participating in work/study programs, but the amount depends on the time actually spent in the programs. So the time he is in the U.S. will be time away from those programs and may delay his parole eligibility date.
As I understand it,if the 2:1 work/study benefit rule applies, here's an example: If Joran gets a 27 year sentence (a 3 year reduction to acknowledge his "conclusio anticipado" of the case through pleading guilty,) he would be eligible to apply for conditional release after 1/3, or 9 years. But if he works or takes educational programs, he'll get 1 day off for every day in the program. Assuming he worked or took courses during the first four years of his sentence, he'll get 2 years more off, which would make him eligible for parole after 7 years instead of 9. Since he's got 18 plus months in for pre-trial confinement, that would bring his sentence down to 5 1/2 years left to serve on a 27 year sentence.
One problem for Joran may be the U.S. extradition request on the Alabama extortion charge. It doesn't seem like Peru allows parole for those with detainers. It's also unclear when Peru would send him to the U.S. It appears they could do it whenever they want, including now, so long as the U.S. promises to return him. If he leaves Peru for a U.S. prison, his parole eligibility date in Peru could be set back for the time he was gone.
While I spent a lot of time reading the Peruvian codes while his case was active, speculating about how criminal laws work in another country is a perilous endeavor, especially when not fluent in the language and having to rely in significant part upon Google translator. I haven't reviewed the law recently and unfortunately don't have time today.
The Peru criminal code is here. The new criminal procedure code is here. The INPE Prison Procedures Manual is here. A good treatise on prison benefits is here.
All of my coverage of his Peruvian case is available here.
