1. The last report on the human rights situation in Cuba was approved by the Inter-American Commission on Human Rights during its 111th regular session. The draft of that report was sent to the Cuban State for its observations on March 14, 2001, in keeping with Article 63(h) of the Commission’s Regulations. The Cuban State did not submit observations, and the IACHR gave its final approval of that report, and decided on April 16, 2001, to publish it in Chapter IV of its 2000 Annual Report.
2. It should be noted, however, that the Cuban State sent a note to the IACHR, on April 16, 2001, signed by the Chief of the Cuban Interests Section in Washington, D.C., Fernando Remírez de Estenoz, and at the same time returned the Commission’s report, stating inter alia that “on behalf of the Government of the Republic of Cuba, ... our country does not recognize the jurisdiction of the Inter-American Commission on Human Rights and ... therefore does not accept what is stated in the text of this report.”
3. The Inter-American Commission on Human Rights has always held that the Cuban State is a party to the international instruments initially adopted in the Western hemisphere to protect human rights: the American Declaration of the Rights and Duties of Man, and the Charter of the Organization of American States. In addition, the Cuban State signed Resolution VIII of the Fifth Meeting of Consultation of Ministers of Foreign Affairs (Santiago, Chile, 1959), which instituted the Inter-American Commission on Human Rights, “charged with furthering respect for such rights.”
4. The Commission wishes to reiterate that Resolution VI of the Eighth Meeting of Consultation excluded the Government of Cuba, not the Cuban State, from participation in the inter-American system. This position is confirmed by the terms used in that Resolution, the speeches made during the debates in which it was approved, and all other proceedings in the Organization on this point. Nonetheless, the distinction between Government and State has been challenged according to this view, excluding the Government also implies excluding the Cuban State.
5. The foregoing is upheld by the Commission in its Seventh Report on the Situation of Human Rights in Cuba, when it states that Government and State are two legally and institutionally differentiable concepts, not only in the field of legal theory, but also in practice.
6. Furthermore, the Commission has stated that “in the case of Cuba, the exclusion of its Government could not entail the loss of its status as a member state, since according to the system of the Charter of the OAS, a state can only lose that status in one case: that provided for in Article 4, i.e., in the case of the entry into the Organization of a new political entity resulting from the unification of several of its member states. Unlike the Charter of the United Nations which makes provision for the expulsion of a member state that repeatedly violates the principles contained in it (Article 6), the Charter of the OAS makes no such provision. The Commission therefore considers that the status of member state constitutes a right according to the provisions of the Charter, and as such, no state may be deprived of that status; the status of member state may only be renounced by the Government that decides to take such a step, but it cannot be lost by means of application of a sanction for which there is no provision in the Charter.”
7. It is the Government of Cuba that is excluded from the inter-American system, not the State. Accordingly, the Cuban State is legally accountable before the Inter-American Commission as regards human rights. In addition, the Commission has always considered that the purpose of the Organization of American States in excluding Cuba from the inter-American system was not to leave the Cuban people without any protection. The exclusion of that Government from the regional system in no way implies that it can cease to carry out its international obligations in the area of human rights.
8. It should also be noted that the main criterion for the preparation of this report is the lack of free elections in keeping with internationally accepted standards, which undermines the right to political participation enshrined in Article XX of the American Declaration of the Rights and Duties of Man, which provides: “Every person having legal capacity is entitled to participate in the government of his country, directly or through his representatives, and to take part in popular elections, which shall be by secret ballot, and shall be honest, periodic and free.” For its part, Article 3 of the Democratic Charter signed in Lima, Peru, on September 11, 2001, defines the elements that constitute a democratic form of government in the following terms:
9. In this context, and since the last report, cited above, the Commission has continued to observe closely how the human rights situation has evolved in the Republic of Cuba. The purpose of this report is to address events in Cuba during the period covered by this annual report.
10. The Cuban State adopted some measures that the Commission considers positive related to individual liberty. In this context, independent journalist Jesús Joel Díaz Hernández, 27 years of age, was released on parole on January 17, 2001. Jesús Joel Hernández, the director of the agency Cooperativa Avileña de Periodistas Independientes (CAPI), based in Ciego de Ávila (central Cuba), had been detained on January 18, 1999, and sentenced the next day to four years imprisonment for the alleged crime of being “socially dangerous.” According to Article 72 of the Criminal Code, his conduct was “manifestly at odds with the norms of socialist morality.” Since 1995, he had sent his articles abroad, first while working with the agency “Patria,” and then as director of CAPI, which he had founded in December 1998. He was serving his sentence at the Canaleta prison, in Ciego de Ávila.
11. On November 22, 2001, José Orlando Gonzáles Bridón, leader of the Democratic Workers Federation of Cuba–an unofficial union–who was sentenced to two years imprisonment for “disseminating false news,” was released on parole three weeks before completing his sentence. He had been convicted of publishing an article via the Internet in which he accused Cuban police agents of negligence in the death of another defender of workers’ rights.
12. On October 19, 2001, Julia Cecilia Delgado, an independent librarian and human rights activist, was released while serving a sentence for the crime of “desacato” (contempt or disrespect of authority). She was arrested on December 10, 2000, along with approximately 200 people, while gathered to celebrate International Human Rights Day.
13. In June 2001, Cecilio Monteagudo Sánchez, a member of the Democratic Solidarity Party, was also released. As the Communist Party is the only one officially allowed, Monteagudo had been convicted of the crime of “enemy propaganda.” He had written–but not published–a document calling on the Cuban population to abstain from voting in the municipal elections.
14. On June 23, 2001, the Cuban State allowed the child Sandra Becerra Jova, 11 years of age, to leave Cuba for São Paulo, Brazil, to join her parents, Cuban engineers Vicente Becerra and Zaida Jova, who have lived in Brazil for four years. She was accompanied by her maternal grandmother, Erena Águila Sánchez. It should be noted that for four years, Sandra Becerra Jova’s parents had sought to get permission for her to leave the country from the Cuban authorities.
15. In terms of prison conditions, on April 24, 2001, the Commission adopted precautionary measures to protect the life and personal integrity of prisoner Jorge García Pérez-Antúnez, who was serving a sentence at the “Nieves Morejón” Central Prison, in the province of Sancti Spíritus, in delicate health conditions, due to a tumor in the right lung. The Commission asked the State to transfer him to a specialized hospital and to provide medical care in coordination with the physician determined by his family. In a sealed envelope of April 30, 2001, the Cuban State returned the IACHR’s document adopting precautionary measures, with no note. Nonetheless, on January 30, 2002, the Commission received a letter of gratitude from the prisoner’s sister, Bertha Antúnez Pernet, who stated, inter alia: “In April 2001, my brother was in agony while on a hunger strike calling for medical assistance for his afflictions.... I really believe that the intervention of the Inter-American Commission on Human Rights vis-à-vis the Cuban State was very important, for 18 days after this initiative my brother was transferred to Havana to the “Carlos J. Finlay” Military Hospital, in the State Security ward, which, though not specialized, at least moved him away from the dust from the quarries at Nieves Morejón, that causes so much harm; the second [petition] was not granted at all, as they never allowed the physician we brought to examine him.... In the hospital, he was given six months rest, better food, and good hygiene.” The Commission takes note of the partial compliance by the Cuban State with the precautionary measures adopted on behalf of Jorge García Pérez-Antúnez, and trusts that the other measure will be adopted within a reasonable time.
16. The American Declaration of the Rights and Duties of Man contains a wide array of fundamental human rights, including the freedom of expression, and the rights to association and assembly, to wit:
17. After the last report adopted by the Commission regarding the human rights situation in Cuba, the Commission has continued to receive communications from individuals and entities denouncing numerous specific cases of violations of the freedom of expression and the rights of association and assembly. Also during this period, different Cuban non-governmental organizations have appeared in a hearing before the Commission to report on various aspects of the human rights situation. In addition, it has received other communications which, together with the copious documentation in the Commission’s archives, leads to the presumption that the pattern of human rights violations seen in previous years is continuing.
18. In the course of 2001, the limitations imposed by the Cuban authorities on the activities of persons seeking to exercise their fundamental rights or freedoms, or to denounce the abuses committed by those authorities, have continued. The Cuban State considers that these human rights groups are largely controlled by foreign interests that seek to destroy the political system, thus it has adopted a harder line with respect to any sign of discontent or dissidence. The increase in both social pressures and government repression make for an extremely dangerous situation which could evolve to the point of having grave consequences for the observance of human rights.
19. The Commission observes that despite its repeated recommendations to the State to reform its legal system so as to achieve the unhampered enjoyment of human rights in Cuba, the authorities have not changed their practice of systematic violations of freedom of expression, assembly, and association, nor have they reformed the constitutional and criminal statutory provisions on which they are based. The harassment and the accusations, the adoption of disciplinary measures, the official warnings, and the penalties involving deprivation of liberty continue to be applied routinely by the Cuban authorities, who, day after day, subjugate any individual or group that expresses disagreement with government policies, orally or in writing. Constitutional and criminal provisions such as “enemy propaganda,” “contempt of authority,” “illicit association,” “clandestine printing,” “dangerousness,” “rebellion,” “acts against State security,” “official warning,” “pre-criminal and post-criminal security measures,” “links or relations with persons potentially dangerous to society,” “socialist legality,” “socially dangerous,” etc. are enforced daily by the Cuban authorities even though they are clearly incompatible with the American Declaration and with the universal principles for the protection of human rights.
20. During the period covered by this report, different international human rights organizations have issued their own reports, which have confirmed what the Inter-American Commission indicated. For example, Human Rights Watch/Americas stated in its World Report 2002:
21. Also during the period covered by this report, Amnesty International sent a communication to the Cuban authorities indicating, inter alia:
The growing number of people jailed for the peaceful exercise of their right to freedom of expression clearly shows how far the government is willing to go to weaken the peaceful opposition and eliminate dissent. Currently, several hundred people, 16 of whom have been identified by Amnesty International as "prisoners of conscience" detained for peaceful exercise of the freedom of expression, association or assembly, are imprisoned for political offences in Cuba. In addition to these "prisoners of conscience", Amnesty International continues to be concerned at the severe harassment to which dissidents, including journalists, members of political organizations and human rights advocates, are subjected.
22. The organization Reporters without Borders, in its August 2001 report, noted, inter alia:
23. In the course of its 57th General Assembly, held in Washington, D.C., United States of America, October 16-21, 2001, the Inter-American Press Association referred to the situation of independent journalists in Cuba in the following terms:
24. In addition, the United Nations Commission on Human Rights, in its 57th session, adopted a resolution expressing concern over the ongoing violations of human rights and “rights and fundamental freedoms in Cuba, such as freedom of expression, association and assembly and the rights associated with the administration of justice,” calling “once again upon the Government of Cuba ... to provide the appropriate framework to guarantee the rule of law through democratic institutions and the independence of the judicial system,” and urging it to invite the United Nations special rapporteurs on torture and freedom of expression to visit the country. The resolution established that Cuba had not made satisfactory improvements in the area of human rights, noting, moreover,
25. The conditions described above by the various international human rights organizations are corroborated by the many complaints received by the Inter-American Commission during the period covered by this report. Following is a summary of the most noteworthy complaints that show continuity in the pattern of discrimination on political grounds, and violations of the freedom of expression, and the rights of assembly and association:
a. Human Rights Watch/Americas reported: “Even though his three co-defendants were released in May 2000, dissident leader Vladimiro Roca Antúnez remained incarcerated as of November , serving his last year of a five-year sentence. The four, then members of the Internal Dissidents Working Group (Grupo de Trabajo de la Disidencia Interna, GTDI), were convicted of ‘acts against the security of the state’ in March 1999, after having been detained since July 1997. Their detention followed the GTDI's release of an analytical paper on the Cuban economy, human rights, and democracy.”
b. In June 2001, the Cuban authorities seized literature that they considered “counter-revolutionary" sent to Ricardo González Alfonso, director of the “Jorge Mañach” independent library, from Italy. The materials seized are the book “La Cortina de Bagazo,” by Zilia L. Lage, and the pamphlet “Meridiano,” by the Centro de Estudios para una Opción Nacional. At the post office located in the municipality of Playa, city of Havana, only a t-shirt that came in the same package was delivered to González Alfonso. Seizure act Nº 230 is signed by inspector Juana Cabrera Arévalo, who acted pursuant to the first section of the May 1966 resolution by the General Customs Service of the Republic. The seizure act notes: “On performing a physical review of the parcel, one book and one pamphlet were detected that have counter-revolutionary content, which attack the interests of the nation, accordingly, they were seized.”
c. In addition, in June 2001, officers from the State Security Department (DSE) for the province of Pinar del Río arrested eight activists from Naturpaz who intended to go on an excursion to mark World Environment Day. The arrests took place in the localities of Sandino, Manuel Lazo, and Babineyes, in the municipality of Sandino. On the evening of June 4, the State Security Department proceeded to arrest José Anacleto Aragón, Luis Reyes Babeiro, Lázaro Romero Solís, Mateo Romeo Ramos, Héctor de la Caridad Cruz Santovenia, Iván Miranda Torres and Antonio Andrés Alvarez Reyes. All of the persons arrested were taken to the headquarters of the political police in the Ciudad Sandino.
d. In March 2001, in Pinar del Río, a 14-year-old child was threatened by the authorities of his school for publicly questioning the government policy that prohibits the sale of milk to children over six years of age. Why do so many people emigrate from Cuba? Why are children not sold fresh milk once they turn seven? These two questions resulted in Raiman Alexander Arencibia Hernández being besieged by four teachers from the school, who told him, “We can send you to a re-education center for minors or perhaps expel you from this school for asking those questions.” The child had asked these questions during a class. Among the teachers who pressured the child was the assistant principal of the Carlos Ulloa secondary school. The authorities also stated that they knew his father, who had been dismissed from his job for political reasons. The child was surprised that the teachers were aware of that information.
e. Joint forces of the State Security Department (DSE) and the Revolutionary National Police (PNR) deployed a major operation beginning at 6:00 a.m., December 10, 2001, resulting in a full siege of the central area of Guantánamo, and of the homes of some opposition leaders who live there. The operation was carried out for the purpose of impeding the celebration of the 53rd anniversary of the Universal Declaration of Human Rights, planned for that day, with a mass demonstration that was to begin at 9:00 a.m. in the José Martí park, and which was to continue, with a march, to the “Pedro Agustín Pérez” plaza, everyone dressed in white. Also planned was the reading of a communiqué and the distribution of pamphlets containing the Universal Declaration of Human Rights to the general public. On the afternoon of December 9, 2001, the authorities summonsed opposition figures Fernandino Castro de Lardiller and Eduardo Alberto Quintana Arbois, of the Partido Democrático 30 de Noviembre “Frank País”; independent journalist Luis Torres Cardosa, and Héctor René Roque, Vice-President of the Cuban Youth Movement for Democracy. In the course of the interviews, Col. Ladislao Benítez, Chief of the State Security Department for the province of Guantánamo, Major Calviño, Deputy Chief of the Confrontation Unit, and operational officers Orelvis Frómeta and Bartolo physically repressed and threatened the dissidents to keep the demonstration from happening. These forms of harassment, such as arrests, restrictions on movement, and expulsion from the locality, were used by the Cuban authorities simultaneously in Guanes, Las Martinas, Manuel Lazo, Pedro Betancourt, and Nueva Gerona. Among the members of civil society repressed at that time were leaders and activists from the following organizations: the political parties Pro Derechos Humanos de Cuba, affiliated with the Andrei Sakharov Foundation, and the Partido Democrático 30 de Noviembre “Frank País”; the independent movements Acción Alternativa, Fé por la Libertad de la Patria, Jóvenes por la Democracia, Fundación Isla de Pinos de Derechos Humanos y Fomento Territorial; the workers’ associations Confederación Obrera Independiente Cubana and Colegio Médico; the Club de Prisioneros y ex-Prisioneros Políticos; and one independent opposition figure.
26. An essential issue for the Inter-American Commission, in the context of the freedom of expression is freedom of the press, which, in the view of the experts on the subject, is systematically violated by the Cuban State. In effect, the Office of the Rapporteur for Freedom of Expression of the IACHR, in its 2000 Annual Report, noted: “The [Cuban] legal system places countless restrictions on the ability to disseminate and receive information. Moreover, tactics of intimidation and repression are used to put further pressure on journalists and dissidents to prevent them from criticizing the government.” The legal framework that is the basis for the authorities to violate the right of all Cuban citizens to receive and disseminate information is the Constitution, which allows the freedom of expression so long as it is exercised “in keeping with the purposes of socialist society.” This right of Cubans becomes a punishable act if exercised “against the provisions of the Constitution and statutes..., against the existence and purposes of the socialist State, or against the decision of the Cuban people to build socialism and communism.”
27. The Office of the Rapporteur for Freedom of Expression confirms what is noted by the IACHR at the beginning of this report when it states, moreover, that “numerous sections of the Penal Code are used to suppress journalists and others who speak out against the government. Many of the offenses, which subject the accused to prison terms, are vaguely defined so as to apply to a wide range of speech. Such offenses include: ‘desacato,’ or disrespect; sedition; ‘enemy propaganda’; ‘acts against the security of the state’; ‘resistance’; ‘public disorder’; ‘instigation to commit a crime’; ‘damages’; ‘spreading of unauthorized news’; ‘insulting of patriotic symbols’; ‘illicit association’; and ‘dangerousness.’” Further on, the Rapporteur states that
28. This legal framework against freedom of press is supplemented by Law Nº 88, also called the Law for Protection of National Independence and the Economy, which was issued by the Cuban State in February 1999, and which, in its first article, “defines as criminal conduct and punishes those acts aimed at supporting, facilitating, or collaborating with ... the blockade, the economic war against Cuba, the subversion, and other similar measures aimed at diminishing, damaging, or endangering the independence and sovereignty of the Cuban State. The supply of, search for, or obtaining of subversive information, and bringing subversive materials into the country, or reproducing or disseminating them, are considered to constitute criminal conduct. The same holds for collaboration be it direct or through third persons with radio or television stations, newspapers, magazines, or other mass media for the purposes indicated in the law.” Violations of this law are punished by deprivation of liberty for up to 20 years for the perpetrators and their accomplices.
29. The general situation of the freedom of expression in Cuba, and press freedom in particular, is analyzed by Human Rights Watch/Americas in the following terms:
30. In relation to the foregoing paragraph, Human Rights Watch/Americas also reported: “In a remarkable statement, Cuban Justice Minister Roberto Díaz Sotolongo justified Cuba's restrictions on dissent by explaining that, as Spaniards had instituted laws to protect the monarch from criticism, Cuba was justified in protecting Fidel Castro, Cuba's 'king,' from criticism.”
31. The Inter-American Commission, during the period covered by this report, has received several complaints that confirm the prevailing situation in terms of press freedom and independent journalism in Cuba. Following are some of the most noteworthy complaints:
a. The Committee for the Protection of Journalists (CPJ) reported that on the afternoon of October 12, 2001, two officers from the Department of State Security (DSE) appeared at the offices of an association of independent journalists and warned its president that they would not allow the opening of the 2001-2002 course. The association, the Sociedad de Periodistas Manuel Márquez Sterling, is directed by journalist Ricardo González Alfonso. The officers also told Gonzales Alfonso that the courses were illegal because the journalists were not licensed to teach. The classes, which consisted of courses in Spanish grammar, journalism, and English, were to begin October 15, 2001, and are free for the members of the association. In addition, on October 14, 2001, State Security officers visited the domiciles of independent journalists Jorge Olivera Castillo, Graciela Alfonso, Dorka de Céspedes Vila, and Aimeé Cabrera, warning them that attending the classes was illegal.
b. Reporters without Borders reported that five journalists from the agencies Colegio de Prensa de Camagüey (CPC) and Agencia de Prensa Libre Avileña (APLA) were beaten on December 25, 2001, by members of the police and agents in civilian dress. The five were covering the inauguration of an independent library in the city of Florida (Camagüey, central Cuba). Normando Hernández Gonzáles, Carlos Brizuela Yera, and Joel Blanco García, of the CPC, as well as Léster Téllez Castro and Misley Delgado Bombino, of the APLA, were beaten with fists and tonfas (sticks), before being briefly detained. The independent libraries, created by private persons, offer books prohibited by the regime. According to Reporters without Borders, “In Cuba, only the official press is authorized. Since January 1, 2001, RSF has counted nearly 100 acts of pressure and intimidation (threats, assaults, police summonses, etc.). The authorities detained journalists 29 times this year. Since 1995, nearly 50 independent journalists have had to go into exile to escape the pressures.”
c. For its part, Human Rights Watch/Americas noted that “The authorities maintained strict controls on the press, barring local independent news coverage and taking steps to limit foreign reporting. As of November , independent journalist Bernardo Arévalo Padrón, director of the news agency Línea Sur Press, remained behind bars, having been denied conditional release. He was serving a six-year sentence for "insulting" President Castro, imposed in November 1997. In January, independent journalist Jesús Joel Díaz Hernández, who had been serving a four-year sentence for ‘dangerousness,’ was granted conditional release. The authorities routinely detained and questioned independent journalists, monitored their telephone calls and visitors, restricted their travel, and put them under house arrest to prevent coverage of certain events. In May , in recognition of such tactics, the Committee to Protect Journalists (CPJ), a U.S.-based press freedom group, named President Fidel Castro as one of the Ten Worst Enemies of the Press for 2001.” Further on, Human Rights Watch/Americas stated:
32. The Inter-American Commission on Human Rights must note its profound concern, as the testimonies, complaints, and information provided during the period covered by this report describe a situation that has not changed with respect to previous years. In other words, the pattern of State repression of all who attempt peacefully to exercise their rights to freedom of expression, association, and assembly persists. The State, despite having reduced the severe sentences to which it subjected dissidents in the past, continues intense harassment of all those who in one way or another take issue with government policy. The Commission considers it extremely serious that the Cuban authorities continue using the procedures and penalties that entail deprivation of liberty to harass and/or persecute persons for reasons having to do with the exercise of rights recognized in the international human rights instruments.
33. The Commission also observes that the State has not made any change in the constitutional provisions and criminal statutes that are openly incompatible with international human rights law. The enforcement of these provisions–which have already been analyzed at length by the IACHR in this and other reports–provide a veil of legality for the repressive actions of the Cuban authorities, but internationally they constitute flagrant violations of the human rights enshrined in the American Declaration of the Rights and Duties of Man. As Human Rights Watch/Americas has indicated:
The denial of basic civil and political rights is written into Cuban law. While Cuba's domestic legislation includes broad statements of fundamental rights, other provisions grant the state extraordinary authority to penalize individuals who attempt to enjoy their rights to free expression, opinion, association, and assembly.... In recent years, rather than modify its laws to conform with international human rights standards, Cuba has approved legislation further restricting fundamental rights.... But Cuba has consistently refused to reform the most objectionable elements of its laws. Cuba's concurrent refusal to amnesty political prisoners and its continued prosecutions of nonviolent activists highlight the critical role of Cuba's laws in its machinery of repression.
34. The Commission finds censurable the limitations and restrictions imposed by the Cuban State on freedom of expression, assembly, and association, as well as the pressures, systematic harassment, and punishment to which independent journalists who endeavor to exercise their fundamental rights day after day are subjected. From the facts and the law, it is concluded that there is no freedom of expression in Cuba such as would allow political discrepancies, which is fundamental for democratic government.
B. RIGHT TO JUSTICE AND DUE PROCESS
35. The American Declaration of the Rights and Duties of Man enshrines the right to justice and due process in the following terms:
36. The effective observance of the guarantees contained in the articles cited are based on the independence of the judiciary, derived from the classic separation of powers. This is a logical consequence that derives from the very conception of human rights. In effect, if one seeks to protect the rights of individuals in the face of possible State actions, it is essential that one of the organs of that State have the independence that would enable it to judge both the actions of the Executive and the legality of the laws issued, and even of the decisions issued by its own members. Therefore, the Commission considers that the effective independence of the judiciary is an essential requisite for the practical observance of human rights in general.
37. One of the fundamental individual rights–as a guarantee of the correct administration of justice in the determination of the rights and responsibilities of the individual, and as an instrument for protection from the abuses of power–is the right to a fair trial or equitable process, also called the right to due process or the right to a regular process.
38. Due process is defined by a set of provisions set forth in positive law whose purpose is to guarantee the justice, equity, and rectitude of the judicial proceedings in which an individual may be involved. This right, in addition to constituting a guarantee as to the rectitude and correctness of any judicial proceeding in which the rights or obligations of a person are under consideration–or in which an effort is made to determine one’s possible criminal liability–is also an instrumental right, insofar as it can guarantee the exercise and enjoyment of other rights of the person. In effect, an unjust or arbitrary judicial decision–in addition to constituting a violation, in itself, of the human right–may constitute a workable instrument for justifying, legitimating, or covering up the prior deprivation of other human rights such as the rights to life, personal liberty, the freedom of expression, assembly, and association, etc. In addition, even when such violations have not been committed directly by the judiciary, it can become an instrument thereof by making decisions which, due to the failure to observe the principles and norms of regular process, are unjust and are the seal for achieving impunity for such abuses of power.
39. In this respect, the Commission
observes with concern that the international human rights principles and
provisions cited above continue to be disrespected in Cuba’s domestic
jurisdiction, since the practices of the judicial authorities have not
changed, nor have the constitutional provisions and criminal statutes on
which they are based. In other words, the information provided to
the Commission during the period covered by this report indicates that in
trials of Cuban citizens–especially those tried for political
40. For example, in the trials of independent journalists, the organization Reporters without Borders described how the Cuban judicial authorities rush to a guilty verdict without taking into account the evidence tending to refute the charges:
41. The right to be tried within a reasonable time or “right to have the legality of his detention ascertained without delay by a court, and the right to be tried without undue delay or, otherwise, to be released” is another of the many procedural guarantees violated daily in Cuba. Here too Reporters without Borders reports that
Other journalists released on parole are have still not been tried, in some cases after several years. Apart from "insulting" the President and "social dangerousness", the charges most often made against them include:
42. In this regard, the Inter-American Commission was also informed that Leonel Gregorio Pupo Rodríguez, Víctor Pupo Rodríguez, Francisco Gutiérrez Pérez, Julio Regalado García, and Jorge Luis Chau Muñiz have been confined in the Combinado Sur prison in Matanzas since December 1999, without being brought to trial. These five persons decided to declare that they were on a hunger strike, as a way of calling for the regime to bring them before a court. The Office of the Attorney General of the Republic of Cuba is preparing a case against them for the alleged crime of “illegal exit.”
43. The guarantees considered to be associated with the existence of an impartial process generally include the right to be informed of the existing charges, the right to choose defense counsel, the right of the accused to confront his or her accusers, the right for the accused and defense counsel to have a reasonable time to prepare the defense, the right of the accused to present witnesses and question them, and the right of the accused and defense counsel to be timely advised of the trial date.
44. The Inter-American Commission has been informed that the practice of law also suffers from the lack of independence. The lack of independence results from Decree-law Nº 81 and its regulation, which establish the obligation to belong to the National Organization of Collective Law Offices (ONBC) as a prerequisite for exercising the profession. In practice this has impeded the entry to the profession of those who take issue with the political system in place. It should also be noted that the Ministry of Justice is in charge of performing the inspection, supervision, and control of their activity and of their members’ activities, issuing regulatory and other provisions, and performing additional functions (First Special Provision of Decree-law Nº 81 and Article 42 of the Regulations).
45. In that context, it should be noted that another group of attorneys, the “Unión Agramontista de Cuba,” has been trying since 1990 to establish an independent association. The lawyers who make up this group are subject to all types of pressures, ranging from “friendly councils” to the administrative prohibition on exercising the legal defense of human rights activists and political opponents. Furthermore, it has been noted that leaders of the National Organization of Collective Law Offices harass attorneys who prepare and sign briefs with positions critical of the situation of the nation or the profession. In many cases, the persons responsible for such briefs have been called to meetings to be pressured and even to prohibit them from exercising the profession. The situation of independent attorneys in Cuba is analyzed by Human Rights Watch/Americas in the following terms:
46. The restrictions on creating an independent lawyers’ association in Cuba is a matter of concern for the Commission, for it diminishes the right of all accused to have access to an independent and impartial legal defense. As Human Rights Watch/Americas notes, “Cuba's procedural laws, the banning of an independent bar association, and powerful, politicized judicial and prosecutorial authorities seriously debilitate this right. The fact that the Criminal Procedure Code permits detentions of up to ten days without requiring detainees to be notified of their right to an attorney, much less appointed an attorney, represents a clear failure to secure a genuine right to a defense. The close ties of the government with judges, prosecutors and state-appointed or approved attorneys leave many defendants with little belief that their attorneys can or will do anything but request a slightly shorter sentence.” Human Rights Watch/Americas cites, as an example, the testimony of former political prisoner Adriano González Marichal, who stated:
47. The Commission has been informed of the irregularities committed in Cuba in trials with political connotations. Publicity in trials against persons accused of “counter-revolutionary activities” is another of the guarantees of due process enshrined in Article XXVI of the American Declaration that is violated in Cuba. According to the information provided, the hearing rooms are full of police and State Security agents who block access by journalists and persons other than the family members. In addition, as regards the time given the accused and his attorney to prepare the defense, a large share of the complaints received indicate that they did not have access to the case file with sufficient lead time. It has also been noted that the attorney’s intervention is limited mainly to the trial phase, and that this is basically due to the fact that the defense counsel meet with the accused one hour before the trial, and in many cases at the moment of the trial. Another characteristic of political trials is that the system considerably curtails the defense’s opportunities to present defense witnesses, in contrast to the prosecution, which is able to call its witnesses, especially when they are State Security agents. It should be noted, however, that there are no legal grounds for prohibiting defense witnesses. It would appear that the essential reason for explaining the lack of favorable witnesses is the fear of reprisals by the authorities.
48. The Commission has already stated in prior reports–and reiterates once again–that the shortcomings of the Cuban judicial apparatus begin with the Constitution of the Cuban State, which does not provide for separation of powers as to guarantee independence in the administration of justice. The Commission acknowledges that the mere constitutional stipulation of the independence of the judicial bodies with respect to the political authorities is not sufficient for there to be correct administration of justice, but it does consider it necessary. Article 121 of the Cuban Constitution provides:
49. The subordination of the courts of justice to the National Assembly of People’s Power, and especially to the Council of State, establishes dependency on the Executive branch. This relationship is strengthened by the function of the Council of State of “providing, as necessary, a general and compulsory interpretation of the laws in force.” In addition, Article 128 of the Constitution provides: “The Attorney General of the Republic receives direct instructions from the Council of State.” Finally, the Constitution sets the broad margins within which that interpretation can be rendered in Article 62 of the Constitution, analyzed above.
50. As has been indicated, the courts of justice in Cuba are subordinated to the Council of State, which, according to Article 74 of the Constitution, provides: “The President of the Council of State is the Head of State and Head of Government.” In other words, the Cuban Head of State concentrates, in himself, all state organs. Thus, the Council of State is the political organ that must give the official view on how such vague terms as “the existence and ends of the socialist State” and “the decision of the Cuban people to build socialism and communism” are to be interpreted. All of the “freedoms Cubans are recognized to have” are subordinated to that interpretation; and the administration of justice is charged with applying the possible interpretations to particular cases. This ideological and political bias is reinforced by the functions that the Constitution gives the courts and other State organs:
51. Subordinating the administration of justice to the political authorities provokes considerable insecurity and fear in the citizenry, which is aggravated by the weak procedural guarantees, especially in trials of peaceful opponents to the regime and human rights activists. It is clear that as regards political trials, the courts continue judging with ideological and political criteria, not by the use of proper judicial procedures. It should also be noted that the lack of judicial independence, bolstered by constitutional provisions that make ideological or political references, violate the principle of equality before the law, since it places members of the Communist Party on a higher level than the rest of Cuban citizens who seek to espouse alternative opinions or take issue with the political system in place.
 Under the IACHR’s new Rules of Procedure, former Article 63(h) is now Article 57(1)(h) and 57(2).
 IACHR, The Situation of Human Rights in Cuba, Seventh Report, OEA/Ser.L/V/II.61, Doc. 29 rev. 1 (1983), para. 32.
 In the Seventh Report on the Situation of Human Rights in Cuba, the IACHR states: “The argument that the Commission does not have jurisdiction over Cuba because it is no longer a member state of the OAS, is based on the view that there is no distinction between state and government by which the IACHR’S jurisdiction is justified. It also sustains that after more than twenty years since the exclusion of the Government of Cuba by the Eighth Meeting of Consultation, the distinction between State and Government, if ever it was valid, is no longer so. According to this position, the expulsion of the Government of Cuba caused the loss of its status as a member state, and the ‘merely procedural circumstance’ that that country had not denounced the Charter of the Organization nor the other instruments derived from it, is considered irrelevant. In this respect, it is considered that because the Government of Cuba was expelled application of Article 48 of the Charter which refers to denunciation does not apply to this situation.” The arguments set forth on this point have been extracted primarily from the following sources: General Assembly, Minutes and Documents, seventh regular session, St. Georges, Grenada, June 14-22, 1977, Volume II (Second Part). Doc. OEA/Ser.P/X-O.2, December 30, 1977, pp. 265-269; General Assembly, Minutes and Documents, Tenth Regular Session, Washington, D.C., November 19-27, 1980, Volume II (Second Part). Doc. OEA/Ser. P/X-0.2, November 13, 1981, pp. 84-181; Minutes of the Meeting of the Preparatory Committee of the General Assembly, held June 25, 1980. Doc. OEA/Ser.P/AG/Acta 141/80. In IACHR, The Situation of Human Rights in Cuba, Seventh Report, OEA/Ser.L/V/II.61, Doc. 29 rev. 1, October 4, 1983, pp. 10-11.
 The operative part of Resolution Nº VI of the Eighth Meeting of Consultation of Ministers of Foreign Affairs of the OAS establishes that:
1. That adherence by any member of the Organization of American States to Marxism-Leninism is incompatible with the inter-American system and the alignment of such a government with the communist bloc breaks the unity and solidarity of the hemisphere.
2. That the present Government of Cuba, which has officially identified itself as a Marxist-Leninist government, is incompatible with the principles and objectives of the inter-American system
3. That this incompatibility excludes the present Government of Cuba from participation in the inter-American system.
4. That the Council of the Organization of American States and the other organs and organizations of the inter-American system adopt without delay the measures necessary to comply with this resolution.
The complete text of Resolution VI can be found in “Eighth Meeting of Consultation of Ministers of Foreign Affairs, serving as Organ of Consultation in application of the Inter-American Treaty for Reciprocal Assistance, Punta del Este, Uruguay, January 22-31, 1962, Meeting Documents,” Organization of American States, OEA/Ser.F/II.8, doc. 68, pp. 17-19.
 IACHR, The Situation of Human Rights in Cuba, Seventh Report, op. cit., para. 35.
 Cuban laws grant parole (libertad condicional) based on good conduct after half the sentence has been served.
 While defining crimes against state security and rebellion in a Criminal Code is not, in principle, incompatible with the American Declaration, its application by the Cuban State against human rights activists, independent trade unionists, and peaceful opponents to the regime does violate it. As Human Rights Watch/Americas has pointed out, “Cuba prosecutes crimes against state security to repress nonviolent government opponents. While the crime of enemy propaganda explicitly violates the fundamental freedoms of expression and association, other state security crimes include objectionable references to preserving the socialist system and are defined in elastic terms that frequently have been used to punish the exercise of fundamental rights.... Under the law, Cuban authorities may conduct warrantless arrests of any person accused of a state security crime, must hold the accused in pretrial detention, and must try the person in a closed trial in a special state security tribunal. In order to increase the likelihood that officials will take action against the crimes of rebellion or sedition, which the Criminal Code defines to include nonviolent acts, officials failing to do so risk three-to eight-year prison terms for ‘violation of the duty to resist’ (infracción de los deberes de resistencia).” Human Rights Watch/Americas, Cuba’s Repressive Machinery: Human Rights Forty Years After the Revolution, 1999, p. 43, in IACHR, 2000 Annual Report, Chapter IV, Situation of Human Rights in Cuba, para. 22, note 13.
 Human Rights Watch/Americas, World Report 2002, Americas Overview, Cuba, paras. 1 and 2.
 Amnesty International, AI: AMR 25/01/00/s, January 16, 2001, digital version.
 Reporters without Borders, Annual Report, Mission Report, Cuba, August 17, 2001, pp. 1, 11, and 12, digital version.
 Inter-American Press Association, 57th General Assembly, Washington, D.C., United States, October 12-16, 2001, Country reports, Cuba.
 United Nations, Commission on Human Rights, Situation of human rights in Cuba, Fifty-seventh session, April 18, 2001, E/CN.4/RES/2001/16.
 Human Rights Watch/Americas, World Report 2002, op. cit., p. 3.
 IACHR, 2000 Annual Report, Vol. III, Report of the Office of the Special Rapporteur for Freedom of Expression, General Secretariat, Organization of American States, OEA/Ser.L/V/II.111, Doc. 20 rev., April 16, 2001, p. 66.
 Article 53, Cuban Constitution.
 Article 62, Cuban Constitution.
 IACHR, 2000 Annual Report, Vol. III, op. cit., pp. 66 and 67.
 Article 1, Law Nº 88, 1999, Ley de Protección de la Independencia Nacional y la Economía de Cuba, Havana, Cuba.
 Human Rights Watch/Americas, Cuba’s Repressive Machinery: Human Rights Forty Years after the Revolution, June 1999, pp. 27 and 28.
 Díaz Sotolongo was referring to the crime of desacato. Interview by Human Rights Watch with Roberto Díaz Sotolongo, New York, June 11, 1998, in HRW, Cuba’s Repressive Machinery, op. cit., p. 28.
 Reporters without Borders, 2002 Annual Report, Letter of Protest, Cuba, December 28, 2001, Cinco periodistas agredidos por la policía. Un cententar de actos de acoso contra la prensa independiente en el 2001, digital version.
 Human Rights Watch/Americas, World Report 2002, op. cit., pp. 5 and 6.
 Id., p. 6.
 Human Rights Watch/Americas, Cuba’s Repressive Machinery, op. cit., pp. 33 and 34.
 Reporters without Borders, Informe Anual 2002, Redacción de Misión, Cuba: Acoso, Exilio, Encarcelamiento–Agencias de Prensa, Un Centenar de Periodistas Independientes Frente al Estado, pp. 5 and 6, digital version.
 Article XXV of the American Declaration of the Rights and Duties of Man.
 Reporters without Borders, op. cit., pp. 7 and 8.
 Human Rights Watch/Americas, Cuba’s Repressive Machinery: Human Rights Forty Years after the Revolution, op. cit., pp. 64 and 65.
 In addition, the fact that the Code of Criminal Procedure allows detentions of up to 10 days without requiring that the detainees be informed of their right to a designated attorney clearly presupposes that in reality the right to a legal defense is not guaranteed. Id., p. 63.
 Id, p. 64. At González Marichal’s trial, the prosecutors recommended a 12-year sentence, and the court sentenced him to 10 years (HRW interview with Adriano González Marichal, Toronto, April 12, 1998). Human Rights Watch/Americas also highlights other interviews with prisoners and former political prisoners, such as Raúl Ayarde Herrera, who recalled his state-appointed attorney advising him, "Everything is proven. Admit your error and see if they'll lower your sentence"; René Portelles, who received a seven-year sentence for enemy propaganda in 1994, stated that the court did not allow him to hire a private attorney. His state-appointed attorney was an avowed communist who first met with him three days before the trial for about ten minutes. He recalled asking her, "How can you defend me since I'm a member of the opposition?" At trial, she merely asked that he not receive the maximum sanction; Alberto Joaquín Aguilera said that even though he had a private lawyer at his 1992 trial, it was the same thing as having a state-appointed attorney. "There are no private lawyers. They have to represent the interests of the state. Lawyering is a mechanism that does not function." Id., pp. 63 and 64.
 “The Criminal Procedure Code grants tribunals broad authority to close trials at any stage for reasons of state security, morality, or public order. While these could serve as legitimate justifications for barring the public from a trial, Cuba's closed trials appear designed to cover up its denial of due process to dissidents and to restrict opportunities for the public to hear their views. The law bars everyone related to the defendant except his lawyer from attending closed trials. (Criminal Procedure Code, Law Nº 5, Article 305)” in Human Rights Watch/Americas, Cuba’s Repressive Machinery, op. cit., p. 58.
 Article 90(ch) of the Cuban Constitution.
 Article 10 of the Cuban Constitution.
 Article 62 of the Cuban Constitution provides: “None of the liberties citizens are recognized to have can be exercised against the provisions of the Constitution and the laws, or against the existence and ends of the socialist State, nor against the decision of the Cuban people to build socialism and communism. Violations of this principle are punishable.” Emphasis added.