Convention Abbreviation: CCPR
Human Rights Committee
Eighty-first session

5 - 30 July 2004

Views of the Human Rights Committee under
the Optional Protocol to the International Covenant

on Civil and Political Rights*

- Eighty-first session -

Communication No. 1167/2003

Submitted by: Ramil Rayos ( represented by counsel, the Free Legal Assistance Group)
Alleged victim: The author

State party: Philippines

Date of communication: 24 March 2003 (initial submission)

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 27 July 2004,

Having concluded its consideration of communication No. 1167/2003, submitted to the Human Rights Committee on behalf of Ramil Rayos under the Optional Protocol to the International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the author of the communication, and the State party,

Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1.1 The author of the communication is Ramil Rayos, a Filipino national, currently detained under sentence of death at New Bilibid Prisons, Muntinlupa City. He claims to be a victim of violations of articles 5, 6 paragraphs 1 and 2, 7, 9 paragraphs 1 and 2, 10 paragraph 1, and 14 paragraphs 1, 2, 3(a), (b), (g) and 5, of the Covenant. He is represented by counsel, the Free Legal Assistance Group. The Covenant entered into force for the State party on 23 January 1987, and the Optional Protocol on 22 November 1989.

1.2 On 24 March 2003, the Human Rights Committee, through its Special Rapporteur on New Communications, requested the State party, pursuant to Rule 86 of its Rules of Procedure, not to carry out the death sentence against the author whilst his case was before the Committee.

The facts as presented by the author

2.1 On 9 April 1997, at about 7 pm, the author arrived at his aunt's residence. When his aunt met him outside her residence he was drunk. The author's cousins were also outside and drunk. In their presence, the author became unruly and destroyed several benches outside the house. Fearing that her sons might assault the author, his aunt left the house to look for help and came across her cousin, a policeman who agreed, at her request, to bring the author to the municipal jail, to sleep off his intoxication.

2.2 On 10 April 1997, without being in possession of an arrest warrant as required by Article III, Section 3(1) of the Philippine Constitution, the police refused the author permission to leave the jail. They informed him that they were looking for a murder suspect with long hair, and that he was a suspect.

2.3 On 11 April 1997, after two days of detention, the author was forced to sign an extra-judicial confession, in which he admitted to having raped and killed one Mebelyn Gaznan (1) According to the author, a policeman forced him to sign the confession by poking a gun at him, and when he initially refused, he was struck with the gun on his back. He was not given an opportunity to read the confession before he signed it.

2.4 A lawyer – not of the author's own choosing – was present "to assist [him] in giving a written confession." He did not have a lawyer prior to the confession. For the trial, the author had a different lawyer with whom he was only able to communicate for a few minutes at a time each day during the trial court proceedings.

2.5 On 29 April 1998, the Regional Trial Court of Cagayan de Oro City found the author guilty of "the complex crime of rape with homicide". He was sentenced to death by lethal injection and ordered to pay compensation of Philippine Pesos 100,000.00 to the victim's surviving heirs.

2.6 On 7 February 2001, under its automatic review procedure, the Supreme Court affirmed the death sentence but increased the author's civil liability to Php 145, 000.00. On 6 September 2001, this judgment became final and executory.

The complaint

3.1 The author claims a violation of articles 5 and 6, as on 13 December 1993 and pursuant to Act No. 7659, the State party reintroduced the death penalty by electrocution. He claims that although article 6 does not require all State parties to abolish the death penalty, it is clear on a joint reading of paragraphs 1 and 2 of this article, that once a State party has abolished the death penalty it is not open to it to reintroduce it. He claims that an "extensive interpretation" of the Covenant that would allow such a reintroduction would run counter to paragraph 2 of article 5. In addition, he submits that the Second Optional Protocol to the Covenant, aiming at the abolition of the death penalty, the growing worldwide trend towards abolition and the principles of international justice as reflected in the statutes of the ICTY, ICTR and ICC require article 6 to be interpreted in a way that would prevent States parties from reintroducing the death penalty.

3.2 The author claims a violation of article 6, paragraphs 1 and 2, as by extending the death penalty to crimes such as kidnapping, drug related offenses, rape and qualified bribery, the State party violates its obligation to restrict the death penalty to the "most serious crimes". In this regard, the author refers to the Committee's General Comment on article 6 in which the Committee expressed the view that the phrase "most serious crime" should be interpreted restrictively, "to mean that the death penalty should be quite an exceptional measure". He also refers to ECOSOC resolution 1984/50 on "Safeguards guaranteeing the protection of rights and freedoms of those facing the death penalty", which interprets the phrase "most serious crimes" as not going beyond intentional crimes with lethal or other extremely grave consequences.

3.3 It is claimed that the author's rights under article 7 would be violated if he were to be put to death, he claims that his rights would be violated under article 7, as the procedure set out in document EP 200 issued by the Bureau of Corrections pursuant to Republic Act 8177, states that the condemned prisoner shall only be notified of the execution date at dawn on the date of execution itself; and that the execution must take place within 8 hours of the condemned prisoner being informed. No provision is made for notifying the condemned person's family, nor is any provision made to allow contact between the individual and his family. This is said to amount to psychological torture. The only contact the condemned prisoner may have is with a cleric or a lawyer, which must take place through a mesh screen, with the content of the meeting being recorded.

3.4 The author claims a violation of article 10, paragraph 1, since the above procedure is said to violate the inherent dignity of the human person.

3.5 The author claims violations of article 9, paragraphs 1 and 2, and 14, paragraph 3 (a), as he was deprived of his liberty without an arrest warrant, and there are no written records showing that, at the time of arrest, he was informed by the police of the reasons for his arrest, his right to silence and his right to counsel.

3.6 The author claims a violation of article 14, paragraph 1, as there are no records showing that upon his arrest, he was informed by the police of the reasons for his arrest, his right to remain silent and his right to a lawyer of his own choosing. In addition, the author claims that he was not accorded his right to counsel of his choice and was not attended by police appointed counsel until the second day of his detention.

3.7 The author claims a violation of article 14, paragraph 2, arguing that in finding him guilty of the crimes charged, the Regional Trial Court not only admitted but also relied on his extra-judicial confession. While the Philippine Supreme Court, on automatic review, set aside the confession, it nonetheless confirmed the trial court's judgment on the basis of alleged circumstantial evidence. According to the author, such reliance on circumstantial evidence "unduly shifted the burden of proof from the prosecution to the accused."

3.8 The author claims a violation of article 14, paragraph 3 (a), as he was not informed of the reasons for the charges against him.

3.9 The author claims a violation of article 14, paragraph 3(b), because he did not have adequate time and facilities to prepare his defence, or to communicate with counsel for his trial, in that he could only consult with counsel for a few moments during each day of the trial. He also alleges a violation of article 14, paragraph 3(g), because he was compelled to sign a confession.

3.10 The author claims a violation of article 14, paragraph 5, on account of the failure of the Supreme Court to give due consideration to the actual testimony given by one Dr. Angelita Enopia, during the trial, in which she testified that "it is possible that the child was raped" rather than clearly affirming that, on the basis of her autopsy, she was raped. He also claims that the Supreme Court failed to consider evidence from the official records, which allegedly tended to exculpate the accused. By failing to do so, the Supreme Court is said to have failed to afford the author the right to review of his sentence, as required under article 14, paragraph 5, of the Covenant. The author explains that during the automatic review process it is not usual for judges of the Supreme Court to hear the testimony of any witnesses but to rely, as they did in this case, on testimony given during the trial.

The State party's submission on admissibility and merits

4.1 By submission of 24 October 2003, the State party contests the admissibility and merits of the communication. In general on admissibility, it submits that all the author's claims are unsubstantiated, as they are "devoid of merit". On the claim relating to article 9, it argues that the author failed to exhaust domestic remedies. It submits that the author was initially escorted to the Municipal hall not because of the crime with which he was eventually charged and for which he was convicted, but because of disorderly behaviour. He was placed behind bars to prevent him from inflicting injury upon himself or others until he recovered from intoxication. He was not allowed to leave jail the next morning as in the meantime a complaint had been lodged against him for "rape-slay". It is submitted that the author did not raise the claim that his arrest was in any way defective before the trial court, and is therefore precluded from raising the issue before the Committee: under domestic law any objection, defect or irregularity relating to an arrest must be made before an accused enters his plea on arraignment.

4.2 On the merits and concerning article 6, paragraph 2, the State party considers the argument advanced to be a normative one which is outside the remit of the Committee. It is said to be purely an argument on the wisdom of imposing the death penalty for certain offences, while the determination of which crimes should so qualify is purely a matter of domestic discretion. According to the State party, the Covenant does not limit the right of the State party to determine the wisdom of a law that imposes the death penalty. The State party contends that the constitutionality of the law on the death penalty is a matter for the State party itself, and recalls that its Supreme Court had upheld the constitutionality of the law in question. (2) It further argues that it does not fall to the Committee to interpret a State party's Constitution for the purpose of determining that State party's compliance with the Covenant.

4.3 Concerning the author's claim that the death penalty is not imposed for the "most serious" crimes, the State party notes that States have a wide discretion in interpreting this provision in the light of culture, perceived necessities and other factors, as the notion "most serious crimes" is not defined any more explicitly in the Covenant. As to the contention that article 6 must be interpreted in such a way as to prevent States parties from reintroducing the death penalty pursuant to the Second Optional Protocol to the Covenant, the State party submits that this claim is without merit as it has neither signed nor ratified this Protocol.

4.4 On the claim that the failure to set the date of execution and notify the author in advance of this date violates articles 7 and 10, paragraph 1, the State party submits that under to Section 15, read together with section 1, of Republic Act No. 8177, the death sentence shall be carried out "not earlier than one (1) year nor later than eighteen (18) months after the judgment has become final and executory, without prejudice to the exercise by the President of his executive clemency powers at all times." Thus, death row inmates are assured of up to eighteen months, from the time the judgment imposing the death penalty becomes final and executory, during which they may seek executive clemency and attend to all his practical and spiritual needs. The State party challenges the claim that the author cannot bid farewell to family after notification, as under Section 16 of Republic Act No. 8177, during the period between notification and execution, the condemned prisoner shall, as far as practicable, be furnished such assistance as he requests in order to be attended to by a representative of the religion he professes, his lawyer, members of his family and/or business partners.

4.5 The State party dismisses the allegations of violations of article 9, paragraphs 1 and 2. It refers to its argument on admissibility abovementioned and submits that even if the State party were to acknowledge that the arrest was illegal, this would not be sufficient under domestic law to set aside a judgment rendered by a court after a trial free from error.

4.6 The State party rejects as unfounded the author's claims under article 14. The author was provided with the assistance of counsel during the preparation of his confession. His counsel cautioned him that a confession, once executed, could be used against him in a court of law and that the crime of which he was charged was punishable by death. Following this advice, the author maintained his wish to make a confession. He did not object to the counsel provided, and therefore, under domestic law, was deemed to have made his confession voluntarily and freely. According to the State party, if he had had an objection to the State-counsel, he could have objected and requested another lawyer.

4.7 Concerning the author's claim that there was no official record showing that prior to his confession, he was informed of his right to remain silent, and to be represented by a competent and independent counsel of his choice, the State party submits that it has been established under domestic law that "the constitutional procedures on custodial investigations do not apply to a spontaneous statement, not elicited through direct questioning by the authorities, but given in an ordinary manner whereby the accused orally admitted having committed the crime". (3) At any rate, the State party submits that the Supreme Court, in affirming the author's conviction, did not rely on his confession, as his guilt was established by circumstantial evidence.

4.8 As to the Supreme Court's reliance on circumstantial evidence in affirming the author's conviction, the State party explains the circumstances in which domestic courts accept such evidence and points out that in cases of rape with homicide, because of the nature of the crime, the evidence against the accused is generally circumstantial. In the State party's view, in the instant case, the pieces of evidence, taken in their entirety, unmistakably point to the guilt of the author. It also submits that "an alleged infringement of the constitutional rights of the accused under custodial investigation is relevant and material only to cases in which an extra-judicial admission or confession extracted from the accused becomes the basis of his conviction". (4)

4.9 As to the claim that the testimony of the witnesses were not credible, the State party submits that it was sufficiently established at trial that the witnesses did not have any ill-motive to falsely implicate and testify against the author and that, pursuant to the domestic law of the State party, factual findings of the trial court made on the basis of its assessment of the credibility of witnesses are given great weight and, barring arbitrariness, are said to be conclusive. (5)

4.10 Concerning the claim of a violation of article 14, paragraph 5, the State party submits that the evaluation of witnesses is chiefly the function of the trial court. The examination of factual issues is not within the remit of the Supreme Court, and it is not required to examine or contrast the oral and documentary evidence de novo. According to the State party, the evaluation of the credibility of witnesses and their testimony is a matter best undertaken by the trial court because of its unique opportunity to observe the witnesses. It further reiterates the trial court's summation in the author's case to the effect that the prosecution witnesses did not have any motive to falsely implicate, or testify against, the author.

Author's comments

5.1 By submission of 28 February 2004, the author reiterates his previous claims. With respect to the rule that an accused must make any objection to defects in his arrest before he enters his plea on arraignment, the author submits that he was not informed upon his arrest, during his detention or by the trial court of this rule and that the rule itself is contrary to his right to liberty.

5.2 As to the State party's argument that even if the arrest was illegal, this would not be sufficient to set aside a judgment rendered after a trial free from error, the author contests that the trial was free from such error. In support of his claim he refers to the following: the fact that the Supreme Court, unlike the trial court, chose not to rely on the extrajudicial confession; the fact that the expert's evidence at trial only claimed that it was possible that the alleged victim was raped; and that the Philippine Supreme Court has held in a number of cases that when the accused in a criminal case is unlawfully deprived of his right to liberty, the trial court is "ousted of jurisdiction" over that person.

5.3 As to his extrajudicial confession, the author states that the confession is the usual sworn statement prepared by the Philippine police and was not the result of a spontaneous statement, as asserted by the State party

Issues and proceedings before the Committee

Consideration of admissibility

6.1 Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.

6.2 The Committee has ascertained, in accordance with article 5, paragraph (a), of the Optional Protocol, that the same matter is not being examined under another international procedure of international investigation or settlement.

6.3 With respect to the claims that the lack of records concerning the circumstances of the author's arrest and the failure to afford him counsel of his choice after being arrested constitute a violation of article 14, paragraph 1, the Committee finds that these claims do not raise issues under article 14 but rather issues under article 9. Consequently, these claims are considered inadmissible ratione materiae, under article 3 of the Optional Protocol

6.4 The Committee notes that the State party objects to the admissibility of the alleged violation of article 9 of the Covenant for non-exhaustion of domestic remedies, arguing that any alleged irregularity in his arrest should have been brought up prior to the author's arraignment. As it appears from an examination of the court proceedings that the author never raised any claim that his arrest was defective before the domestic authorities, the Committee considers that it is precluded from considering this issue at this stage. The Committee notes that the same circumstances apply to the author's claim of a violation of article 14, paragraph 3(a) (para.3.5) - failure to inform him of the charges against him. Consequently, these claims are inadmissible for non-exhaustion of domestic remedies under article 5, paragraph 2 (b), of the Optional Protocol.

6.5 With respect to the claim under article 14, paragraph 2, of the Covenant, the Committee considers that the author has failed to show how the Supreme Court's reliance on circumstantial evidence in affirming the conviction of the trial court violated his rights under this provision, or any other provision of the Covenant and therefore finds this part of the claim inadmissible for non-substantiation, pursuant to article 2 of the Optional Protocol.

6.6 With respect to the claim of a violation of article 14, paragraph 3 (g), the Committee considers that as the author himself admits to having had counsel assist him in preparing and making his confession, he has failed to substantiate his claim that he was forced to sign a confession. Furthermore, it is uncontested that the Supreme Court, when affirming the author's conviction, did not rely on his confession. Consequently, this claim is inadmissible under article 2 of the Optional Protocol.

6.7 As to the alleged violation of article 14, paragraph, 5 because of the way in which the Supreme Court interpreted the witnesses' evidence, the Committee notes that the author is primarily requesting the Committee to examine the evaluation of facts and evidence in his case. The Committee reiterates its jurisprudence that the evaluation of facts and evidence is best left for the courts of States parties to decide, unless the evaluation of facts and evidence was clearly arbitrary or amounted to a denial of justice. As the author has provided no evidence to demonstrate that the appellate courts' decisions were clearly arbitrary or amounted to a denial of justice, the Committee considers this claim inadmissible under article 2, of the Optional Protocol for non-substantiation for purposes of admissibility..

6.8 As to the claim under article 5 of the Covenant, the Committee finds that this provision does not give rise to any separate individual right. Thus, the claim is incompatible with the Covenant and inadmissible under article 3 of the Optional Protocol.

6.9 The Committee finds no other reason to consider the remaining claims raised by the author inadmissible and therefore proceeds to a consideration of the merits of the claims relating to articles 6; 5, paragraph 2; 7; 10, paragraph 1; and 14, paragraph 3 (b), of the Covenant.

Consideration of the merits

7.1 The Committee notes the author's claims of violations under articles 7 and 10, paragraph 1, on account of the fact that he would not be notified of the of his execution until dawn of the day in question, whereupon he would be executed within 8 hours and would have insufficient time to bid farewell to family members and organise his personal affairs. It further notes the State party's contention that the death sentence shall be carried out "not earlier than one (1) year nor later than eighteen (18) months after the judgment has become final and executory, without prejudice to the exercise by the President of his executive clemency powers at all times." (6) The Committee understands from the legislation that the author would have at least one year and at most eighteen months, after the exhaustion of all available remedies, during which he may make arrangements to see members of his family prior to notification of the date of execution. It also notes that, under Section 16 of the Republic Act No. 8177, (7) following notification of execution he would have approximately eight hours to finalise any personal matters and meet with members of his family The Committee reiterates its prior jurisprudence that the issue of a warrant for execution necessarily causes intense anguish to the individual concerned and is of the view that the State party should attempt to minimise this anguish as far as possible. (8) However, on the basis of the information provided, the Committee cannot find that the setting of the time of the execution of the author within eight hours after notification, considering that he would already have had at least one year following the exhaustion of domestic remedies and prior to notification to organize his personal affairs and meet with family members, would violate his rights under articles 7, and 10, paragraph 1.

7.2 Regarding the claim under article 6, paragraph 2, of the Covenant, the Committee observes that, in response to the State party's argument that the Committee's function is not to assess the constitutionality of a State party's law, its task is rather to determine the consistency with the Covenant of the particular claims brought before it. (9) The Committee notes from the judgments of both the Regional Trial Court and the Supreme Court, that the author was convicted of the complex crime of rape with homicide under article 335 of the Revised Penal Code, as amended by RA No. 7659, which provides that "When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death." Thus, the death penalty was imposed automatically by operation of article 335 of the Revised Penal Code, as amended. The Committee refers to its jurisprudence that the automatic and mandatory imposition of the death penalty constitutes an arbitrary deprivation of life, in violation of article 6, paragraph 1, of the Covenant, in circumstances where the death penalty is imposed without regard being able to be paid to the defendant's personal circumstances or the circumstances of the particular offence. (10) It follows that the automatic imposition of the death penalty in the author's case, by virtue of article 335 of the Revised Penal Code, as amended, violated his rights under article 6, paragraph 1, of the Covenant.

7.3 With respect to the claim of a violation of article 14, paragraph 3 (b), as the author was not granted sufficient time to prepare his defence and communicate with counsel, the Committee notes that the State party does not contest this claim. Since the author was only granted a few moments each day during the trial to communicate with counsel, the Committee finds a violation of article 14, paragraph 3 (b), of the Covenant. As the author's death sentence was affirmed after the conclusion of proceedings in which the requirements for a fair trial set out in article 14 of the Covenant were not met, it must be concluded that the author's right protected under article 6 has also been violated.

8. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of articles 6, paragraph 1, and 14, paragraph 3 (b), of the Covenant.

9. In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the author with an effective and appropriate remedy, including commutation of his death sentence. The State party is under an obligation to avoid similar violations in the future.

10. Bearing in mind that, by becoming a State party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant, the Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to its Views. The State party is also requested to publish the Committee's Views.

____________________________

[Done in English, French and Spanish, the English text being the original version. Subsequently to be issued in Arabic, Chinese and Russian as part of the Committee's annual report to the General Assembly.]

** The following members of the Committee participated in the examination of the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr. Prafullachandra Natwarlal Bhagwati, Ms. Christine Chanet, Mr. Franco Depasquale, Mr. Maurice Glèlè Ahanhanzo, Mr. Walter Kälin, Mr. Ahmed Tawfik Khalil, Mr. Rajsoomer Lallah, Mr. Rafael Rivas Posada, Sir Nigel Rodley, Mr. Martin Scheinin, Mr. Ivan Shearer, Mr. Hipólito Solari Yrigoyen, Ms. Ruth Wedgwood, Mr. Roman Wieruszewski and Mr. Maxwell Yalden.

The texts of two individual opinions signed separately by Committee members Mr. Nisuke Ando and Ms. Christine Chanet are appended to the present document.

APPENDIX
Individual opinion by Committee member, Mr. Nisuke Ando

Reference is made to my individual opinion in the case Carpo v. The Philippines: Communication No. 1077/2002.

[Signed] Nisuke Ando

Individual opinion by Committee member, Ms. Chritine Chanet

I reiterate my position concerning death row as expressed in my individual opinion on communication nos. 270/1998 and 271/1998 (Barrett v. Jamaica and Sutcliffe v. Jamaica), Views dated 30 March 1992.

[Signed] Christine Chanet

[Done in English, French and Spanish, the French text being the original version. Subsequently to be issued in Arabic, Chinese and Russian as part of the Committee's annual report to the General Assembly.]

Notes

1. A 9-year-old girl whose body was found in the evening of 9 April 1997 in the vicinity of Balingasag.

2. People v. Echegaray (GR No. 117472, judgment of 7 February 1997).

3. Alvarez v. Court of Appeals, 359 SCRA 544[2001]

4. People v. Amestuzo, 361 SCRA 184 [2001].

5. People vv. Castillo, 289 SCRA 213 [1998].

6. Section 1, Republic Act No. 8177.

7. Section 16 of Republic Act No. 8117 – "…During the interval between the notification and execution , the convict shall, as far as possible, be furnished such assistance as he may request in order to be attended in his last moments by a priest or minister of the religion he professes and to consult his lawyers, as well as in order to make a will and confer with members of his family or of persons in charge of the management of his business, of the administration of his property, or of the care of his descendants." However, on 8 March 2004, counsel forwarded the text of EP 200, pursuant to which the condemned prisoner may only meet with a priest and his lawyer but not with family members.

8. Pratt and Morgan v. Jamaica, Case no. 210/1986 and 225/1987, Views adopted on 6 April 1989.

9. Carpo v. The Philippines, Case no. 1077/2002, Views adopted on 28 March 2003.

10. Thompson v. St. Vincent & The Grenadines, Case No. 806/1998, Views Adopted on 18 October 2000; and Kennedy v. Trinidad & Tobago, Case No. 845/1998, Views adopted on 26 March 2002.