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CASE 12.476 PUBLICATION OSCAR ELÍAS BISCET ET AL. CUBA October 21, 2006
I. SUMMARY
1. On September 22, 2003 and October 9, 2003, the Inter-American Commission on Human Rights (hereinafter “the Commission,” the “Inter-American Commission” or “the IACHR”) received two petitions lodged, respectively, by the Cuban American Bar Association and Directorio Democrático Cubano (hereinafter “the petitioners). The allegations in both petitions is that the international responsibility of the Republic of Cuba (hereinafter “Cuba,” “the Cuban State”, or “the State”) has been engaged by its violation of Articles I (right to life, liberty and personal security), II (right to equality before the law), IV (right to freedom of investigation, opinion, expression and dissemination), V (right to protection of honor, personal reputation, and private and family life), VI (right to a family and to protection thereof), IX (right to inviolability of the home), X (right to the inviolability and transmission of correspondence ), XI (right to the preservation of health and to well-being), XVII (right to recognition of juridical personality and civil rights), XVIII (right to a fair trial), XX (right to vote and to participate in government), XXI (right of assembly), XXII (right of association), XXV (right of protection from arbitrary detention) and XXVI (right to due process of law) of the American Declaration of the Rights and Duties of Man (hereinafter the “Declaration” or the “American Declaration”), to the detriment of a group of 79 dissidents and members of the opposition to the Cuban government.
2. The Commission decided to join the two petitions and process them as a single case, in exercise of its authority under Article 29(1)(d) of its Rules of Procedure. It then proceeded to open the case, which was classified as Case No. 12,476. Subsequently, during its 121st regular session, the Commission approved Report No. 57/04, in which it concluded that the case was admissible and decided to continue with its analysis of the merits.
3. The State responded to the requests for information, which the Commission made through the Cuban Interests Section in Washington, D.C. In its communications, the State asserted that the Inter-American Commission did not have legal jurisdiction and the Organization of American States did not have the moral authority to pass judgment on the exercise of human rights in Cuba. The Commission therefore considers that the time periods prescribed in its Rules of Procedure for a State to contest the facts reported in a petition have long since expired.
4.
In the present report, after
examining the arguments as to the merits, the Commission concludes that
the State’s international responsibility has been engaged for violation
of Articles I (right to life, liberty and personal security), II (right
to equality before law), IV (right to freedom of investigation, opinion,
expression and dissemination), V (right to protection of honor, personal
reputation, and private and family life), VI (right to a family and to
protection thereof), IX (right to inviolability of the home), X (right
to the inviolability and transmission of correspondence ), XI (right to
the preservation of health and to well-being), XVIII (right to a fair
trial), XX (right to vote and to participate in government), XXI (right
of assembly), XXII (right of association), XXV (right of protection from
arbitrary detention) and XXVI (right to due process of law) of the
American Declaration, to the detriment of Nelson Alberto Aguiar Ramírez,
Osvaldo Alfonso Valdés, Pedro Pablo Álvarez Ramos, Pedro Argüelles Morán,
Víctor Rolando Arroyo Carmona, Mijail Bárzaga Lugo, Oscar Elías Biscet
González, Margarito Broche Espinosa, Marcelo Cano Rodríguez, Juan
Roberto de Miranda Hernández, Carmelo Agustín Díaz Fernández, Eduardo
Díaz Fleitas,[1]
Oscar Manuel Espinosa Chepe, Alfredo Felipe Fuentes, Efrén Fernández
Fernández, Juan Adolfo Fernández Saínz,[2]
José Daniel Ferrer García, Luís Enrique Ferrer García, Orlando Fundora
Álvarez, Próspero Gaínza Agüero, Miguel Galbán Gutiérrez,[3]
Julio César Gálvez Rodríguez, Edel José García Díaz, José Luís García
Paneque, Ricardo Severino González Alfonso,[4]
Diosdado González Marrero, Léster González Pentón, Alejandro González
Raga, Jorge Luís González Tanquero,[5]
Leonel Grave de Peralta, Iván Hernández Carrillo,[6]
Normando Hernández González, Juan Carlos Herrera Acosta, Regis Iglesias
Ramírez, José Ubaldo Izquierdo Hernández, Reynaldo Miguel Labrada Peña,[7]
Martha Beatriz Roque Cabello, Raúl Ramón Rivero Castañeda, José Gabriel
Ramón Castillo, Pablo Pacheco Ávila, Horacio Julio Piña Borrego, Ángel
Moya Acosta, Manuel Vázquez Portal, Nelson Molinet Espino, Antonio Ramón
Díaz Sánchez, Alfredo Rodolfo Domínguez Batista, Fidel Suárez Cruz,
Jorge Olivera Castillo, Héctor Maseda Gutiérrez, Héctor Palacios Ruiz,
Marcelo Manuel López Bañobre, Héctor Raúl Valle Hernández, Guido Sigler
Amaya, Ariel Sigler Amaya, Félix Navarro Rodríguez, Librado Linares
García, Omar Pernet Hernández, Antonio Augusto Villareal Acosta, Mario
Enrique Mayo Hernández, Julio Antonio Valdés Guevara, Luís Milán
Fernández, Alexis Rodríguez Fernández, Arnaldo Ramos Lauzurique, Miguel
Valdés Tamayo, José Miguel Martínez Hernández, Arturo Pérez de Alejo
Rodríguez, Omar Moisés Ruiz Hernández, Blas Giraldo Reyes Rodríguez,
Alfredo Manuel Pulido López, Claro Sánchez Altarriba, Ricardo Enrique
Silva Gual, Jesús Mustafá Felipe, Manuel Ubals González, Fabio Prieto
Llorente, Omar Rodríguez Saludes, Rafael Millet Leyva,[8]
Miguel Sigler Amaya, and Orlando Zapata Tamayo (hereinafter the “alleged
victims” or “victims”). In this report, the Commission also makes a
number of recommendations to the State.
II. PROCESSING WITH THE COMMISSION
5. On September 22, 2003, the Cuban American Bar Association lodged petition 771/03 with the IACHR. The Commission initiated the processing of the petition on February 8, 2004, and forwarded the pertinent parts thereof to the State, giving it two months to submit its response. The State did not reply to that communication. On October 9, 2003, the Directorio Democrático Cubano lodged petition 841/03 with the Commission. Then, on January 21, 2004, the Directorio Democrático Cubano supplied the Commission with additional information pertinent to the petition it had lodged.
6. On September 30, 2004, the Commission decided to join petitions 771/03 and 841/04, pursuant to Article 29(1)(d) of its Rules of Procedure. On October 14, 2004, during its 121st regular session, the Commission issued Report No. 57/04 in which it declared the petitions admissible and opened the case as number 12,476. On November 8, 2004, the IACHR forwarded the report to the parties and, in accordance with the provisions of Article 38(1) of its Rules of Procedure, gave the parties two months in which to submit their observations on the merits.
7. On December 6, 2004, the Chief of the Cuban Interests Section in Washington, D.C. sent the Commission a letter stating that the IACHR “does not have legal jurisdiction, and the Organization of American States does not have the moral authority to pass judgment on the exercise of human rights in Cuba.”
8. On January 7, 2005, the petitioners sent the Commission their observations on the merits. Those observations were forwarded to the State that same day. In the letter of transmittal, the State was informed that it had two months in which to present its additional observations on the merits.
9. On February 11, 2005, the IACHR received a note from the Chief of the Cuban Interests Section in Washington, D.C. in which he advised that “the Inter-American Commission on Human Rights does not have jurisdiction and the OAS does not have the moral authority to examine this or any other matter pertaining to Cuba.”
10. On February 28, 2005, the Commission held a hearing in which the petitioners participated. They introduced their witnesses, who testified as to the situation of the alleged victims.
11.
On February 22, 2006 the
petitioners sent additional information to the Commission, updating the
individual situation of the victims. On February 24, 2006 this
information was transmitted to the State.
III. POSITION OF THE PARTIES
A. The petitioners
1. As to the facts
12. The petitioners allege that during March 2003 the State unleashed a crackdown against a succession of human rights activists and independent journalists. The result was that a number of dissidents and members of the opposition were detained and arrested, among them Nelson Alberto Aguiar Ramírez, Cruz Delia Aguilar Mora[9], Osvaldo Alfonso Valdés, Pedro Pablo Álvarez Ramo, Pedro Argüelles Morán, Víctor Rolando Arroyo Carmona,Mijail Bárzaga Lugo, Oscar Elías Biscet González, Margarito Broche Espinosa, Marcelo Cano Rodríguez, Juan Roberto de Miranda Hernández, Carmelo Agustín Díaz Fernández, Eduardo Díaz Fleitas, Antonio Ramón Díaz Sánchez, Alfredo Rodolfo Domínguez Batista, Oscar Manuel Espinosa Chepe, Alfredo Felipe Fuentes, Efrén Fernández Fernández, Juan Adolfo Fernández Saínz, José Daniel Ferrer García, Luís Enrique Ferrer García, Orlando Fundora Álvarez, Próspero Gaínza Agüero, Miguel Galbán Gutiérrez, José Miguel Martínez, Julio César Gálvez Rodríguez, Edel José García Díaz, José Luís García Paneque, Ricardo Severino González Alfonso, Diosdado González Marrero, Léster González Pentón, Alejandro González Raga, Jorge Luís González Tanquero, Leonel Grave de Peralta, Iván Hernández Carrillo, Normando Hernández González, Juan Carlos Herrera Acosta, Regis Iglesias Ramírez, José Ubaldo Izquierdo Hernández, Reynaldo Miguel Labrada Peña, Librado Ricardo Linares García, Marcelo Manuel López Bañobre, José Miguel Martínez Hernández, Héctor Maseda Gutiérrez, Mario Enrique Mayo Hernández, Luís Milán Fernández, Rafael Millet Leyva, Nelson Moline Espino, Ángel Moya Acosta, Jesús Mustafá Felipe, Félix Navarro Rodríguez, Jorge Olivera Castillo, Pablo Pacheco Ávila, Héctor Palacios Ruiz, Arturo Pérez de Alejo Rodríguez, Omar Pernet Hernández, Horacio Julio Piña Borrego, Fabio Prieto Llorente, Alfredo Manuel Pulido López, José Gabriel Ramón Castillo, Arnaldo Ramos Lauzurique, Blas Giraldo Reyes Rodríguez, Raúl Ramón Rivero Castañeda, Alexis Rodríguez Fernández, Omar Rodríguez Saludes, Martha Beatriz Roque Cabello, Omar Moisés Ruiz Hernández, Claro Sánchez Altarriba, Ariel Sigler Amaya, Guido Sigler Amaya, Miguel Sigler Amaya, Ricardo Enrique Silva Gual, Fidel Suárez Cruz, Manuel Ubals González, Julio Antonio Valdés Guevara, Miguel Valdés Tamayo, Héctor Raúl Valle Hernández, Manuel Vázquez Portal, Antonio Augusto Villareal Acosta y Orlando Zapata Tamayo.
13. The petitioners point out that the alleged victims were detained for having engaged in “subversive activities,” “counter-revolutionary activities” and “activities against the State,” as well as for “dissemination of illegal propaganda and information.” However, the specifics of the alleged violations of the law were not spelled out in the course of the legal proceedings against them.
14. The petitioners state that the detentions of the alleged victims were violent, that their homes were searched, in many cases in the presence of family as an intimidation tactic.
15. The petitioners allege that up until March 31, 2003, no charge had been filed against any of those detained. The petition states that it was not until April 1, 2003 that next of kin began to be notified of the judicial proceedings, all of which were scheduled for the period between April 3 and 7, 2003. The alleged victims, therefore, had but a matter of hours to prepare their defense. The alleged victims were not assisted by counsel of their choosing; instead, they were represented by attorneys of the State, who were not permitted to confer freely and in private with the alleged victims.
16. The petitioners indicate that the proceedings against the detainees were conducted between April 3 and 7, 2003. Not one of the very summary proceedings lasted more than a day. They further allege that reporters, diplomats and the general public were barred from the proceedings. Only the defendants’ next of kin and members of the Cuban Communist Party were permitted to be present.
17. The petitioners add that the prison sentences given to the alleged victims ranged from six months to 28 years. According to the information supplied to the Commission, the alleged victims were convicted –except in the case of Mr. Rafael Millet Leyva- for acts criminalized under Article 91 of the Criminal Code[10] and Law No. 88 -the Law for the Protection of Cuban National Independence and the Cuban Economy- (hereinafter “Law No. 88”).[11] In that connection, the petitioners observe that the alleged victims were convicted for engaging in activities such as publication of opinion pieces on Cuban economic and social affairs, participation in groups regarded by the authorities as “counter-revolutionary,’ or having contact with individuals viewed as “hostile” to the Cuban government interests.
18. The petitioners also argue that one factor contributing to repression of the dissidents is the lack of an independent judiciary in Cuba.
19. As for the conditions under which the alleged victims were held, the petitioners contend that once convicted the alleged victims were sent to prisons far from their places of residence, in order to make it difficult for family members to visit. They assert that most of the convicted are being held in isolation and that prison officials refuse to allow them to have visitors or medical care. The petitioners allege that many of those imprisoned are suffering from health conditions that require special treatment that the authorities frequently refuse to provide. The petitioners add that in some cases, the health of the alleged victims has deteriorated irreversibly because they have received little or no medical attention in prison.
20. The petitioners further contend that a number of the alleged victims have been mistreated by prison staff because the former protested conditions at the prison and insisted on being recognized and treated as “political prisoners or prisoners of conscience.” Because of this, the petitioners argue, many of the alleged victims are being subjected to “the harshest regime,” which means that they are being confined in punishment cells, are allowed fewer visits from family members, and are denied medical care and religious ministrations.
21. Lastly, the petitioners argue that some of the alleged victims are currently out of prison, having been granted the so-called “licencia extrapenal” (conditional release amounting to house arrest). Nevertheless, the petitioners point out that the licencia extrapenal does not set the beneficiary free, since it is only given for medical reasons. The petitioners argue that the authorities have the discretionary power to return anyone on “conditional release” to prison at any time.
2. As to the law
22. The petitioners contend that the State has been violating its citizens’ rights for decades and that the jailing of the alleged victims in this case is one of the more recent episodes in this pattern. According to the petitioners, the policy of eradicating any and all dissent in Cuba is contrary to the values embodied in the American Declaration, which upholds the free exercise of rights that are also contained in other international human rights instruments. The petitioners argue that Cuba has violated Articles I (right to life, liberty and personal security), II (right to equality before law), IV (right to freedom of investigation, opinion, expression and dissemination), V (right to protection of honor, personal reputation, and private and family life), VI (right to a family and to protection thereof), IX (right to inviolability of the home), X (right to the inviolability and transmission of correspondence), XI (right to the preservation of health and to well-being), XVII (right to recognition of juridical personality and civil rights), XVIII (right to a fair trial), XX (right to vote and to participate in government), XXI (right of assembly), XXII (right of association), XXV (right of protection from arbitrary detention) and XXVI (right to due process of law) of the American Declaration.
23. As for the right to liberty and to protection from arbitrary detention, the petitioners make the case that everyone has the right not to be deprived of his liberty and that anyone who has been so deprived has the right to have the lawfulness of his detention examined by a judge without delay. The petitioners contend that the arbitrary arrest and detention of the alleged victims was done in application of Law No. 88, which imposes “unjustifiable constraints on the right to freedom of expression, association and assembly.”
24. The petitioners argue that the rights to freedom of expression, assembly and association are protected under Article 54 of the Cuban Constitution, which provides that “the rights of assembly, demonstration and association are exercised by workers, both manual and intellectual, peasants, women, students and other sectors of the working people, and they have the necessary means for this. The social and mass organizations have everything needed to enable them to engage in those activities, for which members have full freedom of speech and opinion based on the unlimited right of initiative and criticism.”[12] However, in practice Cuba’s laws and regulations on association allow the State to violate this right since organizations independent and separate from the Cuban Communist Party have no legal standing.
25. The petitioners observe that in the alleged victims’ convictions, the weekly meetings that dissidents held to discuss magazines, documents and bulletins were regarded as hostile to the Cuban socialist model and therefore criminal in nature, as was the alleged victims’ participation in public demonstrations with counter-revolutionary placards and their meetings with the United States Interests Section in Cuba.
26. According to the petitioners, the sentences imposed do not detail the specific activities, acts of violence or damage to public or private property that the alleged victims were accused of having committed. The petitioners observe that the alleged victims were convicted for the content of their thoughts or statements and for their decision to associate with each other and assemble peacefully. They further allege that by punishing the alleged victims for sharing their ideas on democracy and human rights, the State violated the rights recognized in Articles XXI and XXII of the American Declaration.
27. The petitioners contend that the State violated the alleged victims’ right to a fair trial when it conducted judicial proceedings that were so-called “summary trials”. They further allege that the government controls the judiciary in Cuba, which makes a fair and impartial trial impossible and restricts the right of defense and due process. They point out that in the aforementioned proceedings the alleged victims were not permitted to see their attorneys until just as their trials were getting underway. The petitioners also allege that the trials were not conducted in public, as the proceedings were closed to the press.
28. The petitioners note further that the sentences given to the alleged victims were excessive and in some cases exceeded the maximum sentence allowed under the very laws that criminalized the conduct for which they were convicted. They point out that some 40% of the alleged victims were sentenced to up to 24 years, that 29% were sentenced to between 15 and 19 years, and that 22% received the harshest sentences of all, amounting to 25 years or more in prison.
29. According to the petitioners, the prison conditions that the alleged victims have to endure, particularly the solitary confinement, the lack of exercise and adequate food, and the appalling health and sanitation conditions, constitute a violation of the rights protected under Articles V and XI of the American Declaration.
30. The petitioners also note that by its actions, the State has violated Articles V and IX of the American Declaration, which recognize every person’s right to the protection of the law against abusive attacks upon one’s honor, reputation, and private and family life and the right to the inviolability of the home. They observe that the searches done of the alleged victims’ homes –many of which were conducted in the presence of their families- and the restriction of family members’ visits to the prison, constitute violations of those two rights.
31. Finally, the petitioners contend that the alleged victims’ right to vote and to participate in government has also been violated.
B. Position of the State
32. In the present case, the State has answered the Commission’s requests for information and observations via two communications sent by way of the Cuban Interests Section in Washington, D.C.
33. On December 6, 2004, the Chief of the Cuban Interests Section in Washington, D.C. sent the Commission a communication to the following effect: “I hereby return to you the three documents sent to this Interests Section on November 8, 2004. As I have told you on previous occasions, the Inter-American Commission on Human Rights does not have legal jurisdiction and the Organization of American States does not have the moral authority to pass judgment on the exercise of human rights in Cuba, a country that has done more than any other in this hemisphere to guarantee its citizens’ rights, despite the genocidal policy of blockade imposed by the United States, which is indeed a massive and flagrant violation of the most elementary human rights.”
34. On February 11, 2005, the Commission received a communication in which the Chief of the Cuban Interests Section in Washington, D.C. advised the following: “I am returning to you the attached report, dated January 7, 2005, which you sent to us and which concerns studies that the OAS’ Inter-American Commission on Human Rights is doing with regard to Cuba. The Inter-American Commission on Human Rights does not have the jurisdiction and the OAS does not have the moral authority to analyze this or any other matter pertaining to Cuba.”
35. The Commission notes that the time periods established in its Rules of Procedure for the State to provide information have long since expired, yet Cuba has done nothing to dispute the allegations that the petitioners make in this case. IV. CONSIDERATION OF THE MERITS
A. Preliminary
36. The Commission reiterates that it is competent to take cognizance of the facts of this case which alleges the responsibility of the Cuban State.[13] Such competence is derived from the OAS Charter and the Statute and Rules of Procedure of the Commission. Pursuant to the OAS Charter, all member States pledge to respect the human rights of individuals that, in the case of States that are not parties to the American Convention on Human Rights (hereinafter the “Convention” or the “American Convention), are established in the American Declaration. In accordance with Article 20(a) of its Statute, the Commission should pay particular attention to the observance of human rights referred to in Articles I, II, III, IX, XVIII, XXV, and XXVI of the American Declaration when it exercises its jurisdiction with respect to States that are not parties to the American Convention. According to Article 49 of its Rules of Procedure, the Commission may receive and examine any petition that contains a denunciation of alleged violations of the human rights set out in the American Declaration in relation to member States of the Organization that are not parties to the American Convention.
37. Cuba deposited the instrument of ratification of the OAS Charter on July 16, 1952, and has been a member State of the Organization of American States ever since.
38. Based on this, the Commission decided in its Report No. 57/04 that it is competent to examine the violations alleged in this case.
B. Application and interpretation of the American Declaration of the Rights and Duties of Man
39. The petitioners have alleged that the Cuban State is responsible for the violation of the rights established in Articles I (right to life, liberty and personal security), II (right to equality before the law), IV (right to freedom of investigation, opinion, expression and dissemination), V (right to protection of honor, personal reputation, and private and family life), VI (right to a family and to protection thereof), IX (right to inviolability of the home), X (right to the inviolability and transmission of correspondence ), XI (right to the preservation of health and to well-being), XVII (right to recognition of juridical personality and civil rights), XVIII (right to a fair trial), XX (right to vote and to participate in government), XXI (right of assembly), XXII (right of association), XXV (right of protection from arbitrary arrest), and XXVI (right to due process of law) of the American Declaration, to the detriment of a group of 79 dissidents and members of the opposition to the Cuban government.
40. As the Commission has stated on repeated occasions, the American Declaration is a source of binding international obligations for all member States of the Organization of American States, including Cuba. The OAS Charter and the Statute and Rules of Procedure of the Commission give the latter the authority to take cognizance of the facts that are the subject of this case. Under the OAS Charter, member States undertake to respect individuals’ fundamental rights which, in the case of States that are not parties to the Convention, are the rights established in the American Declaration of the Rights and Duties of Man. Under Article 20 of its Statute and Articles 49 and 50 of its Rules of Procedure, the Commission may receive and examine any petition that contains a denunciation of alleged violations of the human rights set forth in the American Declaration of the Rights and Duties of Man in relation to the Member States of the Organization that are not parties to the American Convention on Human Rights.[14]
41. In accordance with the jurisprudence of the inter-American human rights system, the provisions of its instruments, including the American Declaration, should be interpreted and applied within the context of the inter-American and international human rights systems and, in the broader sense, in the light of the evolution of international human rights law.[15] Thus, when examining a petition lodged against the Cuban State alleging violation of human rights, the Commission must pay attention to the other relevant norms of international law that apply to the member States[16] and to the evolution of the corpus juris gentium of international human rights law over the course of time.[17]
42. In particular, the organs of the inter-American system have sustained that the evolution of the body of international human rights law relevant to the interpretation and application of the American Declaration can be extracted from other international and regional instruments on human rights.[18] This includes the American Convention which, in many cases, can be considered representative of the basic principles established in the American Declaration,[19] and its respective protocols, such as the one regarding abolition of the death penalty. Another relevant development has also been derived from the provisions of other multilateral agreements approved both within and outside the inter-American system, including the Geneva Convention of 1949, and the International Covenant on Civil and Political Rights.
43. In its analysis of the instant case, the Commission will interpret and apply the relevant provisions of the American Declaration –as appropriate– in light of the evolution that international law of human rights has undergone, as set out in the treaties, custom, and other relevant sources of international law.
44. It is in the light of these principles that the Commission will consider and apply the pertinent provisions of the American Declaration to decide whether the Cuban State has violated the rights recognized in Articles I (right to life, liberty and personal security), II (right to equality before law), IV (right to freedom of investigation, opinion, expression and dissemination), V (right to protection of honor, personal reputation, and private and family life), VI (right to a family and to protection thereof), IX (right to inviolability of the home), XI (right to the preservation of health and to well-being), XVII (right to recognition of juridical personality and civil rights), XVIII (right to a fair trial), XXI (right of assembly), XXV (right of protection from arbitrary arrest) and XXVI (right to due process of law) of the American Declaration, according to Report No. 57/04.
45. The Commission observes that throughout the processing of this case, and particularly during the arguments on the merits, the petitioners have also made legal arguments from which one could infer a possible violations of Articles X (right to the inviolability and transmission of correspondence), XX (right to vote and to participate in government) and XXII (right of association) of the American Declaration. Accordingly, exercising its authority by virtue of the principle of iura novit curia, the Commission decides to examine whether the facts denounced could also constitute a violation of Articles X, XX and XXII of the American Declaration.
C. The Facts
46. The Commission notes that, despite its repeated requests, the State has not provided, in its successive replies to date, observations, information, or evidence related to the allegations of the petitioners. The Commission also observes that the facts alleged by the petitioners specifically describe the situation of the victims, and that these have been corroborated by proof documented in other sources. Nonetheless, the Commission also takes into consideration that many of the facts alleged by the petitioners have not been updated because of the difficulty of gaining access to Cuban prisons, and because of the constraints on many of the prisoners for communicating with their relatives and the petitioners.
47. On the basis of these considerations and given the absence of evidence leading to a different conclusion, the Commission decides to apply Article 39 of its Rules of Procedure, which states:
The facts alleged in the petition, the pertinent parts of which have been transmitted to the State in question, shall be presumed to be true if the State has not provided responsive information during the maximum period set by the Commission under the provisions of Article 38 of these Rules of Procedure, as long as other evidence does not lead to a different conclusion.
48. Without detriment to the foregoing, the Commission will also examine information from other sources, such as the testimonies of the relatives of the alleged victims, official documents of Cuban legal authorities, and updated information from different media sources.
49. Thus, the Commission considers that the facts described in the following paragraphs on the alleged victims are well established:
50. Nelson Alberto Aguiar Ramírez. The petitioners report that Mr. Aguiar Ramírez is a member of the Partido Ortodoxo de Cuba. According to the records supplied to the Commission he was arrested on March 20, 2003 as he was fasting with other activists for the release of political prisoners. He was tried for acts criminalized under Articles 6 and 11 of Law No. 88, for having “compiled subversive materials from the United States government, its agencies, departments, representatives and officials to support the objectives of the Helms-Burton Act.” He was convicted and sentenced to 13 years in prison.[20] It is also reported that he was held in solitary confinement until September 2004, whereupon he was incorporated into the general population at the prison. The petitioners allege that at the present time, he is suffering from multiple complications, such as high blood pressure, hypoglycemia and diabetes and that he has no access to medical care of any kind. The petitioners also report that in October 2004, he was severely beaten by a prison officer after asking for medical attention. According to the petitioners, he is also being denied access to the telephone and other ways of communicating with his wife and family. The Commission has been informed that in January 2006, his next of kin sent a letter to Mr. Fidel Castro asking that he be granted “licencia extrapenal” [conditional release].
51. Osvaldo Alfonso Valdés. The petitioners report that Mr. Valdés is a member of the Cuban Liberal Party [Partido Liberal Cubano]. According to the records supplied to the Commission he was arrested on March 18, 2003, after which his residence was searched and books were confiscated, along with a video camera, a still camera, a portable computer, and family photos. Reports are that he was tried for “Acts against the independence or territorial integrity of the State and criminal offenses,” under Law No. 88, for having allegedly “committed acts intended to be detrimental to the independence or territorial integrity of the Cuban State; [...] supplied information to the United States government to further the ends of the Helms-Burton Act; [...] compiled, copied and circulated subversive materials from foreign entities and agencies and departments of the United States Government in support of the purposes of the Helms-Burton Act; and [...] collaborated with radio stations, newspapers, magazines, and other foreign media in exchange for remuneration, thus disturbing the public order.” He was sentenced to prison for 18 years.[21] According to the information received, he was given a “licencia extrapenal” [conditional release] and released on November 29, 2004.
52. Pedro Pablo Álvarez Ramos. The petitioners report that Mr. Álvarez Ramos is a member of the Consejo Unitario de Trabajadores. According to the records supplied to the Commission he was arrested on March 19, 2003. His residence was searched and books from the “Emilio Máspero” Union Library were confiscated, as were papers belonging to the Consejo Unitario de Trabajadores. He was tried for “Acts against the independence or territorial integrity of the State,” proscribed under Article 91 of the Criminal Code, for having “rallied counter-revolutionary organizations to fight for the interests of the United States, which included making speeches on counter-revolutionary stations that were critical of the Cuban Government and the Cuban State.” He was sentenced to 25 years’ imprisonment,[22] a sentence that the Supreme Tribunal confirmed on June 5, 2003. The petitioners report that Mr. Álvarez Ramos is suffering from glaucoma, an enlarged prostate and arterial hypertension. He was denied a special permit to visit his terminally ill mother.
53. Pedro Argüelles Morán. The petitioners report that Mr. Argüelles Morán is a member of the Cooperativa Avileña de Periodistas Independientes. According to the records supplied to the Commission he was arrested on March 18, 2003 at his home, where a search was conducted. He was prosecuted under Articles 6, 7, 1, 3 and 11 of Law No. 88, for having “compiled and circulated subversive materials from the United States government, its agencies, departments, representatives and officials or from any foreign entity, for the purpose of supporting the objectives of the Helms-Burton Act, and […] cooperated with radio stations, newspapers, magazines and other media circulated abroad, all for profit.” He was convicted and sentenced to 20 years in prison.[23] The petitioners state that he has for months been denied visits from family members, medications and religious objects, and that his health is frail.
54. Víctor Rolando Arroyo Carmona. The petitioners report that Mr. Arroyo Carmona is a member of the Foro por la Reforma. According to the records supplied to the Commission, he was arrested on March 18, 2003. Reports indicate that his residence was searched and that close to 1000 books were confiscated, along with magazines and journals, a fax machine, a telephone answering device, a tape recorder, and his debit cards. He was prosecuted for “Acts against the independence or territorial integrity of the State” criminalized under Article 91 of the Criminal Code, for having “committed acts in the interest of a foreign State, which in this case was the United States, by providing misinformation, encouraging civil contempt, promoting what he called “independent” plans that were in fact reactionary and competed with State-established plans, receiving in exchange clear economic dividends in cash and personal property for his counter-revolutionary activities, all intended to be detrimental to the independence of the Cuban State or its territorial integrity.” He was convicted and sentenced to 26 years in prison.[24] Since his incarceration, he has reportedly been held in solitary confinement and his health condition is critical. It is also reported that he staged a hunger strike and then called it off after securing promises that his conditions of incarceration would improve.
55. Mijail Bárzaga Lugo. The petitioners report that Bárzaga Lugo is an independent journalist and member of the Agencia Noticiosa Cubana. According to the records supplied to the Commission he was arrested on March 20, 2003 at his home in Havana. The records indicate that he was tried for acts criminalized under Articles 4, 7, and 3 of Law No. 88, for having “supplied the United States government, its agencies, departments, representatives or officials with information to further the ends of the Helms-Burton Act, and [...] committed the deed for profit, by cooperating with Radio Martí and other stations in Southern Florida, as well as foreign magazines and other media.” He was convicted and sentenced to 15 years in prison.[25] According to the information furnished by the petitioners, he is being held in solitary confinement and his health is critical.
56. Oscar Elías Biscet González. The petitioners report that Mr. Biscet González is a physician by profession and president of the Lawton Human Rights Foundation [Fundación Lawton de Derechos Humanos] in Havana. According to the records supplied to the Commission, he was detained in March 2003. It is alleged that on March 30, 2003, the following was seized at his residence: a printer, a facsimile machine, a portable computer, compact discs, a radio receiver, an antenna cable, six video tapes, a plastic case containing medications, books and diverse print materials. He was tried for “acts against the independence or territorial integrity of the State” criminalized under Article 91 of the Criminal Code, for having “circulated biased information misrepresenting Cuba’s economic and socio-political reality, to further the interests of the United States Government. He was sentenced to prison for 25 years.[26] On November 12, 2003, he was transferred to another prison, where he was kept in a windowless cell, in solitary confinement for two months, with stringent restrictions as to his rations and visits with family members. On October 14, 2004, he began a fast to protest the bad conditions at the prison and because he was denied any visitors in 2004. Mr. Biscet was convicted again on February 26, 2005, and sentenced to three years in prison for “insulting and failing to show proper respect for patriotic symbols,” “public disorder,” and “incitement to commit crime,” for having waved a Cuban flag upside down to protest human rights violations in Cuba. On November 3, 2005, it was reported that since August 2005, he has been held under the “Harshest Regime Phase 1” and that as long as he refused to wear prison garb, he would receive no benefits of any kind. He is said to be in frail health. His family and conjugal visits are being restricted. Only on those occasions is he permitted to tend to his personal grooming and to receive some food.
57. Margarito Broche Espinosa. The petitioners report that Ms. Broche Espinosa is a member of the Asociación Nacional de Balseros Paz, Democracia y Libertad. According to the records supplied to the Commission she was arrested at her home on March 18, 2003, and tried for “Acts against the independence or territorial integrity of the State” criminalized and punishable under Article 91 of the Criminal Code, for having “committed acts intended to be detrimental to the independence of the Cuban State or its territorial integrity, [having] associated and had contact with counter-revolutionary groups and […] been active in various organizations conspiring against the Cuban Revolution, periodically visiting the United States Interests Section, contacting its staff and receiving materials, bibliography, cash and other means to support subversive activities, sending complaints of supposed human rights violations in Cuba to counter-revolutionary stations within the territory of the United States.” She was convicted and sentenced to 25 years in prison.[27] The petitioners report that she was in such poor health that she was granted “licencia extrapenal” [conditional release] and released on November 29, 2004.
58. Marcelo Cano Rodríguez. The petitioners report that Mr. Rodríguez is president of the Colegio Médico Independiente. The information indicates that he was arrested in Havana on March 19, 2003, and then tried for “Acts against the independence or territorial integrity of the State and criminal offenses,” criminalized under Law No. 88 on Protection of Cuba’s National Independence and Economy. He was charged with having “committed acts intended to be detrimental to the independence or integrity of the Cuban State; for having supplied information to the United States government to further the ends of the Helms-Burton Act; [...] gathered, copied and distributed subversive materials from foreign entities and agencies and departments of the United States government in support of the ends of the Helms-Burton Act; and [...] collaborated with radio stations, newspapers, magazines and other foreign media, in exchange for remuneration, thereby disturbing the public order.” He was sentenced to 18 years’ imprisonment.[28] The petitioners alleged that he is being denied visitors, that correspondence from family members is being withheld, and he is not receiving proper medical care. In addition, they report that in November 2005 he was severely punished by prison guards.
59. Juan Roberto de Miranda Hernández. The petitioners report that Mr. Miranda Hernández is president of the Association of Independent Teachers [Colegio de Pedagogos Independientes]. According to the records supplied to the Commission, he was arrested on March 18, 2003, at his home, where books and documents were confiscated. Reports are that he was tried for “Acts against the independence or territorial integrity of the State” criminalized under Article 91 of the Criminal Code, for having “supplied information to various outlets and agencies of the foreign press.” He was sentenced to 20 years.[29] It is said that since the day of his trial, he has been suffering from arterial hypertension, and was taken to a hospital. It was not until some days later that his next of kin were able to speak with him, and then only for 15 minutes. The reports add that he was later taken away to prison, without his family’s knowledge; while in prison he suffered a heart attack, preceded by acute angina pains in the chest. The petitioners report that he was granted “special conditional release” and then released on June 24, 2004, because his health condition was critical.
60. Carmelo Agustín Díaz Fernández. The petitioners report that Mr. Díaz Fernández is a member of the Unified Cuban Workers Council [Consejo Unitario de Trabajadores Cubanos]. According to the records supplied to the Commission, he was arrested on March 19, 2003. He was tried for “acts against the independence or territorial integrity of the State” criminalized under Article 91 of the Criminal Code, for having “rallied counter-revolutionary organizations to fight for the interests of the United States, including making comments on counter-revolutionary stations against the Cuban Government and the Cuban State.” He was sentenced to prison for 16 years,[30] a sentence confirmed by the Supreme Tribunal on June 5, 2003. According to the information supplied by the petitioners, his health condition was so grave that he was given a “licencia extrapenal´ [conditional release] and released on June 18, 2004.
61. Eduardo Díaz Fleitas. The petitioners report that Mr. Díaz Fleitas is a member of the Movimiento 5 de agosto. According to the records supplied to the Commission he was arrested at his home on March 19, 2003. He was tried for acts criminalized under Articles 4, 6, 7 and 11 of Law No. 88, for having “provided [...] Articles, chronicles and other materials that misrepresent the Cuban reality.” He was convicted and sentenced to 21 years’ imprisonment. [31] Mr. Díaz Fleitas was kept in solitary confinement for the first months following his conviction. According to the information supplied by the petitioners, his health is gradually failing, as he is suffering from high blood pressure, headaches, hypoglycemia and gastritis. In July 2005 he began a hunger strike in protest against his solitary confinement and that in reprisal he was transferred to the maximum security prison in Camagüey in October 2005.
62. Antonio Ramón Díaz Sánchez. The petitioners report that Mr. Díaz Sánchez is a member of the Movimiento Cristiano Liberación. According to the records supplied to the Commission, police arrested him on March 19, 2003, searched his home and seized books and documents. He was tried for “Acts against the independence or territorial integrity of the State” criminalized under Article 91 of the Criminal Code, for having “provided information to a number of stations and foreign press agencies.” He was convicted and sentenced to 20 years in prison.[32] He reportedly spent 6 months in a cell without drinking water or light, and visits from family members were restricted.
63. Alfredo Rodolfo Domínguez Batista. The petitioners report that Mr. Domínguez Batista is a member of the Movimiento Cristiano de Liberación. According to the records supplied to the Commission he was arrested on March 19, 2003. He was tried for the act criminalized under Article 6 of Law No. 88 and for “Acts against the independence or territorial integrity of the State” criminalized under Article 91 of the Criminal Code, for having “committed acts intended to be detrimental to the Cuban State’s independence or territorial integrity.” He was convicted and sentenced to 14 years in prison.[33] It is alleged that on November 11, 2004, he and other inmates declared a hunger strike and that on October 20, 2005 he drove a nail into his hand so as not to be taken from the cell where he was being held. According to the information received, after spending a number of days in a punishment cell, on November 9, 2005 he was put back into the cubicle he shared with 57 prisoners convicted of common crimes.
64. Oscar Manuel Espinosa Chepe. The petitioners report that Mr. Espinosa Chepe is an economist and journalist. According to the records supplied to the Commission, he was arrested on March 18, 2003, and tried for “Acts against the independence or territorial integrity of the State and criminal violations,” criminalized in Law No. 88, charged with having committed acts intended to be detrimental to the Cuban State’s independence or integrity. He was alleged to have supplied information to the United States Government to further the ends of the Helms-Burton Act; to have gathered, copied and circulated subversive materials from foreign entities and agencies and departments of the United States Government to support the objectives of the Helms-Burton Act; and to have collaborated with foreign radio stations, newspapers, magazines and other media circulated abroad, in exchange for remuneration, thereby disturbing the public order.” He was sentenced to 20 years.[34] The Supreme Tribunal upheld the verdict on June 23, 2003. Reports are that his health has deteriorated since his incarceration, as his cirrhosis has become worse and he now suffers from a hernia and hypertension. The petitioners point out that he was not allowed to see his family when he was undergoing medical treatment. The petitioners report that he was granted the “licencia extrapenal” (a conditional release) and released on November 29, 2004. In February 2006, he was summoned to appear before the Playa Municipal Court in the city of Havana, where he was informed that, if it was determined that his health had improved, he would be returned to prison, and that he could not leave Havana without legal authorization. The Commission has also been informed that Mr. Espinoza Chepe is purportedly being surveiled by the so-called “neighborhood political factors,” who are responsible for periodically reporting on his “social attitude,” and whose testimony could lead to “a revocation of his conditional release.”
65. Alfredo Felipe Fuentes. The petitioners report that Mr. Fuentes is a proponent of the Varela Project. According to the records supplied to the Commission he was arrested on March 20, 2003 at his home, which was searched. It is also reported that he was tried for “Acts against the independence or territorial integrity of the State” criminalized under Article 91 of the Criminal Code, for having “rallied illegal organizations and for having engaged in conspiracy, incitement, misrepresentation of the Cuban reality, defamation of government institutions and officials.” He was convicted and sentenced to 26 years’ imprisonment.[35] It is also reported that his wife sent a letter to Mr. Fidel Castro requesting his release, as his poor health has required repeated hospitalizations.
66. Efrén Fernández Fernández. The petitioners report that Mr. Fernández Fernández is a member of the Movimiento Cristiano Liberación. According to the records supplied to the Commission, he was arrested on March 18, 2003 at his home. He was prosecuted for “Acts against the independence or territorial integrity of the State” criminalized under Article 91 of the Criminal Code, for having “provided information to a number of foreign stations and agencies.” He was convicted and sentenced to 12 years in prison.[36] It is further noted that on October 16, 2004, he joined other prisoners in the same facility to protest the fact that the authorities were not allowing them to telephone their families on the grounds that the prisoners were using those phone calls to report the human rights violations occurring in prisons. It has also been reported that he has serious health problems, that he has lost 15 kilos (approximately 33 pounds), and that he has been denied medical care.
67. Juan Adolfo Fernández Saínz. The petitioners report that Mr. Fernández Saínz is a journalist with the Agencia Independiente Patria. According to the records supplied to the Commission he was arrested on March 18, 2003 at his home. The records indicate that Mr. Fernández Sainz was tried for acts criminalized under Articles 4, 7 and 3 of Law No. 88, for having “supplied the United States government, its agencies, departments, representatives or officials with information to further the ends of the Helms-Burton Act and [...] having done so for profit, in cooperation with Radio Martí and other radio stations in southern Florida, as well as foreign magazines and other foreign media.” He was convicted and sentenced to 15 years’ imprisonment.[37] According to the information supplied by the petitioners, Mr. Fernández Saínz was kept in solitary confinement from the time he was convicted until November 2003. They also report that on December 6, 2003, another inmate beat him to the point of unconsciousness. Mr. Fernández Saínz has participated in several hunger strikes to protest the terrible conditions at the prison. According to the information provided by the petitioners, on January 9, 2006, during a visit, his relatives were taken to an office where a military man checked the already empty suitcases that they were taking back home. He told them that a “body check” was also required, which his relatives refused to allow. Mr. Fernández Saínz is reportedly in very poor health.
68. José Daniel Ferrer García. According to information supplied by the petitioners, Mr. Ferrer García is a member of the Christian Liberation Movement [Movimiento Cristiano de Liberación]. The records turned over to the Commission show that Mr. Ferrer Garcia was detained on March 19, 2003. During the investigative process, the following was seized: two cameras, fifteen computer discs, six compact discs, one computer microphone, sixteen rolls of film, one typewriter, one copying machine and medications. He was prosecuted for “Acts against the independence or territorial integrity of the State” criminalized under Article 91 of the Criminal Code, specifically for “threatening the integrity of the Cuban State, working in the service of the United States Government, and receiving from members of known counter-revolutionary organizations technical resources, equipment, propaganda, financial resources and medical products, and for having engaged in seditious activities against the country, upsetting public order, and copying, receiving, distributing and circulating misinformation about Cuba and its authorities.” He was convicted and sentenced to 25 years’ imprisonment.[38] The latest reports indicate that he is in solitary confinement, amid terrible sanitary conditions. Despite his health condition, the authorities are refusing to provide medical treatment. The petitioners also report that prison guards gave Mr. Ferrer García a severe beating on October 20, 2004. Since January 2005, his family and conjugal visits have been restricted.
69. Luís Enrique Ferrer García. The petitioners report that Mr. Ferrer García is a member of the Movimiento Cristiano de Liberación. According to the records supplied to the Commission he was arrested on March 19, 2003. He was tried for “Acts against the independence or territorial integrity of the State,” convicted and sentenced to 28 years in prison.[39] The petitioners add that in August 2004 he was severely beaten by prison staff and that his health was very poor. They also report that in May 2005, he went on a hunger strike.
70. Orlando Fundora Álvarez. The petitioners report that Mr. Fundora Álvarez is a member of the Asociación Pedro Luis Boitel. According to the records supplied to the Commission, he was arrested on March 18, 2003 and then tried for committing “Acts against the independence or territorial integrity of the State” criminalized under Article 91 of the Criminal Code, for having “disseminated biased information that misrepresents the Cuban economic and sociopolitical reality.” He was sentenced to 18 years’ imprisonment.[40] The petitioners report that he was granted licencia extrapenal [conditional release] and released on June 18, 2004.
71. Próspero Gaínza Agüero. The petitioners report that Mr. Gaínza Agüero is a member of the Movimiento Nacional de Resistencia Cívica. According to the records supplied to the Commission he was arrested at his mother’s home on March 18, 2003. Cameras used to record and photograph papers, books, personal letters, Cubanet bulletins, copies of the Universal Declaration of Human Rights, photographs and other documents were confiscated. The record shows that Mr. Gaínza Agüero was tried for “Crimes against Cuba’s National Independence and Economy” criminalized under Articles 7, 8 10 and 6 of Law No. 88, for having “collaborated with a radio station and other foreign media, receiving remuneration for his work; […] promoting and organizing public disturbances and […] compiling subversive material from the United States government and other foreign departments or entities, all for the supposed purpose of achieving the objectives of the Helms-Burton Act.” He was convicted and sentenced to 25 years in prison.[41] In April 2004, his wife complained of the unsafe conditions of her husband’s incarceration, including poor diet. It is also reported that in June 2004, he sewed up his mouth to protest the prison authorities’ decision not to provide the inmates with food sent to them by their families.
72. Miguel Galván Gutiérrez. The petitioners report that Mr. Galván Gutiérrez is an independent journalist with the Agencia Habana. According to the records supplied to the Commission he was arrested on March 18, 2003. The records indicate that he was tried for “Acts against the Independence or Territorial Integrity of the State” criminalized under Article 91 of the Criminal Code, for having “rallied, been a member of and created various unlawful organizations in which he engaged in conspiracy, incitement to civil disobedience and misrepresentation of the Cuban reality, all for the supposed purpose of enabling United States influence.” He was convicted and sentenced to 26 years in prison,[42] a verdict upheld by the Supreme Tribunal on June 3, 2003. On September 29, 2004, he complained that his correspondence had been intercepted in the period from January to July 2004 and that he was transferred to another prison and held in solitary confinement in retaliation for the hunger strike he had started. His health is reportedly very bad.
73. Julio César Gálvez Rodríguez. The petitioners report that Mr. Gálvez Rodríguez is an independent journalist. According to the records supplied to the Commission he was arrested on March 19, 2003. Reports are that he was tried for the acts criminalized and punished under Articles 4, 6, 7 and 11 of Law No. 88, for having “released subversive information, information that was then reported in magazines, on Web pages and on Radio Martí to further the ends of the Helms-Burton Act.” He was sentenced to 15 years’ imprisonment.[43] The petitioners report that on July 9, 2004, Mr. Gálvez Rodríguez was tortured by a re-educator at the hospital, in the presence of other patients. The torture left him with a severe hematoma on the left thigh, kidney pains and bruises on his shoulders. On March 14, 2005, it was reported that he was suffering severe pain in his osteo-muscular system caused by generalized arthritis; his arterial hypertension has also worsened.
74. Edel José García Díaz. The petitioners report that Mr. García Díaz is a member of the Norte Centro Press. According to the records supplied to the Commission, he was arrested on March 18, 2003 and tried for the acts criminalized under Articles 4, 6, 7 and 11 of Law No. 88, for having “released subversive information that was then published in magazines, at Web sites and broadcast on Radio Martí, in furtherance of the ends of the Helms-Burton Act.” He was sentenced to 15 years’ imprisonment.[44] According to the information supplied by the petitioners, he was granted “licencia extrapenal” [conditional release] owing to his grave state of health. He was released on November 29, 2004.
75. José Luís García Paneque |
