updated 12/29/2006 2:23:20 PM ET 2006-12-29T19:23:20

A U.S. Marine convicted of raping a Filipino woman was taken from a Manila jail to the U.S. Embassy on Friday, a spokesman said, almost a month after the U.S. and Philippine governments urged a local court to transfer him to American custody during his appeal.

Lance Cpl. Daniel Smith, 21, had been in jail in Manila since he was convicted and received a 40 year sentence on Dec. 4.

His lawyers, the U.S. Embassy and the Philippine departments of justice and foreign affairs have agreed that his detention violates the 1998 Visiting Forces Agreement, which governs the conduct of U.S. troops in the Philippines. A provision in it states that any accused U.S. serviceman shall remain in U.S. custody until all judicial proceedings are exhausted.

"The government of the Philippines made a decision to transfer Lance Cpl. Daniel Smith back to U.S. custody, consistent with the terms of the VFA," embassy spokesman Matthew Lussenhop told The Associated Press.

The emotional case has stirred anti-American protests in this former U.S. colony, and last week, the United States canceled next year's annual joint military exercise with the Philippines because of a dispute over Smith's custody.

It wasn't immediately clear if the decision to transfer Smith came from a judge or was the result of intervention by President Gloria Macapagal Arroyo's government, a staunch ally of Washington that relies on U.S. counterterrorism training for battling al-Qaida-linked militants in the country's south.

Government officials were not immediately available for comment.

Evalyn Ursua, the lawyer for the 23-year-old rape victim, said Smith's transfer to the U.S. Embassy was "a clear rape of our constitution."

"The U.S. government should be made to answer for intervening in our domestic affairs," she said. "In our legal system, if a criminal is convicted and put in jail, he cannot be released even by the president of the Philippines unless it's a court order."

Smith had sought a temporary restraining order from the Court of Appeals against the decision by Judge Benjamin Pozon to detain him at the suburban Makati city jail immediately after his conviction.

Pozon argued that the provision in the bilateral agreement did not apply after a conviction.

The court rejected that petition on Dec. 19, but the government appealed again.

Solicitor-General Antonio Eduardo Nachura has warned that the continued detention of the Marine at the city jail "will have tremendous repercussions on our diplomatic relations with other sovereign states, especially the United States of America."

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