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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 [FN1] 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.
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[FN1] A 9-year-old girl whose body was found in the evening of 9 April 1997
in the vicinity of Balingasag.
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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. [FN2] 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.
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[FN2] People v. Echegaray (GR No. 117472, judgment of 7 February 1997).
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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". [FN3] 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.
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[FN3] Alvarez v. Court of Appeals, 359 SCRA 544[2001]
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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". [FN4]
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[FN4] People v. Amestuzo, 361 SCRA 184 [2001].
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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. [FN5]
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[FN5] People vv. Castillo, 289 SCRA 213 [1998].
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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." [FN6] 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,[ FN7] 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. [FN8] 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.
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[FN6] Section 1, Republic Act No. 8177.
[FN7] 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.
[FN8] Pratt and Morgan v. Jamaica, Case no. 210/1986 and 225/1987, Views
adopted on 6 April 1989.
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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. [FN9] 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. [FN10] 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.
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[FN9] Carpo v. The Philippines, Case no. 1077/2002, Views adopted on 28
March 2003.
[FN10] 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.
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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 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.] |
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