CUBA

          I.          BACKGROUND

          1.       The Inter-American Commission on Human Rights has continued to observe the human rights situation in the Republic of Cuba closely.  The purpose of this report is to provide a review of the events that have taken place in Cuba in the field of Human Rights, which require special consideration.  It should also be noted that the major criterion for preparing this report has been the lack of free elections in accordance with internationally accepted standards, thereby violating the right to political participation set forth in Article XX of the American Declaration of the Rights and Duties of Man, which states textually that:

          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.

          2.       The Commission drew on several sources in preparing this report, such as the testimony of victims who have suffered violations of their rights in Cuba, complaints brought against the Cuban State, and an abundance of information provided by nongovernmental organizations in Cuba and abroad.

          II.        COMPETENCE OF THE COMMISSION

          3.       The Commission has affirmed that the Cuban State is a party to international instruments, which, in the context of the American hemisphere, were initially established to protect human rights:  the American Declaration of the Rights and Duties of Man and the Charter of the Organization of American States.  This State also signed Resolution VIII of the Fifth Meeting of Consultation of Ministers of Foreign Affairs (Santiago, Chile, 1959), whereby the Inter-American Commission on Human Rights was instituted, "charged with promoting respect for such rights."[1]

          4.       The Inter-American Commission on Human Rights has always maintained that Resolution VI of the Eighth Meeting of Consultation excluded the Government of Cuba, and not the State, from participating in the Inter-American System.  This position is confirmed by the wording of said Resolution, the statements made during the discussions approving it and other actions taken by the Organization in this connection.  However, the validity of such a distinction between Government and State has been challenged, on the grounds that exclusion of the Government also implies exclusion of the Cuban State.[2]

          5.       The foregoing is upheld by the Commission in its Seventh Report on Human Rights in Cuba, when it points out that in the opinion of the Commission, Government and State are two juridical and institutionally differentiable concepts, not only in the context of legal theory but also in practice.

          6.       The Commission, on the other hand, considers that "in the case of Cuba, the exclusion of its Government could hardly determine the loss of its capacity of member state since, within the system of the Charter of the OAS, there is only one case in which a state can lose this capacity:  the one provided for in Article 4, i.e., in the event of the entry into the Organization of a new political entity born of the union of several of its member states.  Unlike the United Nations Charter, which allows for the possibility of expelling a member state that repeatedly violates its principles (Article 6), the Charter of the OAS does not consider this possibility.  Hence, the Commission considers that the character of member state is a right under the provisions of the Charter and as such, no state can be deprived of this capacity; the condition of member state can only be renounced by a Government which considers such a step appropriate, but cannot be lost through the imposition of a penalty not contemplated in the Charter."[3]

          7.       It was the Cuban Government--not the State--that was excluded from the inter-American system.  Consequently, the Cuban State is juridically responsible to the Inter-American Commission on Human Rights in all matters involving human rights.  A further argument which should be mustered by the Inter-American Commission on Human Rights is that the purpose of excluding Cuba from the inter-American system by the Organization of American States was not to leave the Cuban people unprotected.  The exclusion of that Government from the regional system by no means implies that it can cease to comply with its international obligations in the area of human rights.

          8.       As for consideration of the Annual Report of the Inter-American Commission on Human Rights before the General Assembly of the OAS, it should be pointed out that when a special report is included on one of the member states, the representatives of said countries may make any comments they deem to be appropriate.  The General Assembly, in its capacity of supreme organ of the Organization, may adopt such decisions as it considers appropriate, but it does not have the power to amend reports approved by the Inter-American Commission on Human Rights.  Consequently, it cannot be said that the right to defense is exercised before it by a country.

          III.       GENERAL CONSIDERATIONS

          9.       Before starting to examine the general situation of human rights in Cuba, the  Inter-American Commission finds it necessary to refer to the latest background information which it has in this respect: the conclusions and recommendations of its last report.[4]  The purpose is to determine whether the Cuban State has taken any steps or, if not, whether there has occurred any sort of political reform which might improve the situation of human rights in Cuba.

     10. In this regard,  in the framework of its conclusions in its 1994   Annual Report, the Commission indicated, inter alia, that "the Government's repression of political dissent, the de facto and de jure subordination of the administration of justice to the Government Party, the lack of guarantees against arbitrary arrest, and the deliberately severe and degrading conditions in Cuban prisons, combined with the serious economic situation, constitute a dangerous potential for social conflicts and are a matter of profound concern for the Inter-American Commission on Human Rights."[5]  Further on, the Commission added:  "Consequently, ... [it is] absolutely necessary that the Cuban Government immediately initiate political and economic reforms in order to prevent the situation deteriorating even further.  If the present situation continues, the outcome would be extremely serious for the human rights situation in general."[6] 

          11.     The various sources of information available to the Inter-American Commission on Human Rights concur in noting that, during the period covered by this report, the Cuban State adopted a series of measures in respect to human rights.

          12.     The measures adopted by the Cuban State are as follows:

          a.       The United Nations High Commissioner for Human Rights, José Ayala Lasso, visited Cuba, thanks to the permission granted by the Cuban State.

          b.       Representatives of four non-governmental organizations were allowed to visit Cuba to observe the situation of a group of political prisoners.  This visit made possible the release of 22 prisoners who had been convicted of political crimes, before completing their sentences, without imposition of any condition that they leave the country.

          c.       On May 17, 1995, the Cuban State ratified the United Nations Convention Against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment.

          d.       In September 1995, the Cuban State approved a law on foreign investment.  Despite the observations made by the Inter-American Commission on Human Rights (paragraphs 84 ff. of the present report), the Commission believes the start of measures that would allow economic openness in Cuba to be a favorable development.

          e.       In November 1995 the State permitted a conference to be held on "The Nation and Emigration," thereby providing a forum for dialogue between Cubans living in Cuba and living abroad, though it was still limited to very specific issues.

          f.        In 1996, an inter-American academic institution--the Inter-American Institute of Human Rights, whose headquarters are in San Jose, Costa Rica--entered into an initial activity with Cuba's National Jurists' Union (the equivalent of the bar associations in other countries), thereby culminating a consultation process which it had introduced in May of 1994.  The first IACHR promotion mission went to Cuba, also in May of 1994; but it should be noted that, ever since the First Interdisciplinary Course on Human Rights in 1983, the Commission has invited Cuban citizens and personalities who live outside Cuba to take part in this inter-American academic exercise.  The "Seminar on Human Rights,"  held in Havana from May 30 through June 1 of 1994 in cooperation with Cuba's National Jurists Union (UNJC), constituted the first IACHR human rights activity in the difficult political context which is the framework for any work in this field in Cuba.  It was also unique in the inter-American sphere--at least until now.  This was the Commission's first national seminar on human rights during a period (June 1994 to July 1996) fraught with tense relations between Cuba and various countries of the international community.          This project attracted more than 70 members of Cuba's juridical community (judges, lawyers, university professors, members of the various courts and Ministry of Justice personnel).

          The forum served as the starting point for a limited process of discussion and debate on the subject of human rights--and, in particular, the judicial guarantees in the Constitution, which also addressed Cuba's approach to human rights.  Various members of the international community took part in this process.  To cite an example: the subject of human rights was seen to have been a focal point in the global dialogue with the European Union about the drafting of a framework agreement on Cooperation, and some of the European Union's members observed that the existing channels for dialogue through political relations should not be closed, but should lead to progressively greater openness.

          g.       In that context, Canada has signed an agreement on human rights with Cuba.  It calls for the provision of training seminars for judges and lawyers; meetings of legislators from the parliaments of both countries to discuss human rights topics; and establishment of a bilateral mixed commission responsible for conducting the dialogue between the two countries on this subject.  Moreover, a comparative study of the legal system currently in effect (penal and civil law, the family code, investment rules, private initiative and the right of business and commercial establishments) is now under way, thus creating openings for legal technical assistance--even in areas that are the inherent purview of human rights.

          h.       In January 1997, in the context of a clear easing of tensions between the Catholic Church and the Cuban State, the newspaper Granma, organ of the Central Committee of the Communist Party (PCC), announced in its front-page headline that Pope John Paul II will visit Cuba in early 1998.  This is particularly important considering that since the 1960s the Catholic Church has not had access to the communication medias in Cuba.  Furthermore, the Noticiero Nacional de Televisión (national television newscast) reported as its leading news item that President Fidel Castro received Cardinal Camilo Ruini and his delegation from the Italian Bishops Conference at the Palacio de la Revolución; the delegation was making an official visit to Cuba.  Also participating in that meeting were Vice-President Carlos Lage and the Chief of the Communist Party's Office of Religious Affairs, Caridad Diego, as well as Cuban Cardinal Jaime Ortega and the Apostolic Nuncio, Beniamino Stella.

          13.     However, the Inter-American Commission on Human Rights considers that these measures do not comprise the bedrock of a substantive reform in the present political system, which fosters the observance and protection of human rights.  In other words, a reform that will permit the ideological and partisan pluralism implicit in the wellspring from which a democratic system of government develops.  The Inter-American Commission on Human Rights, during the period covered by this report, has also continued to receive numerous complaints about violations of the civil and political rights of Cuban citizens who for one reason or another take issue with government policy.  In effect, discrimination on political grounds and the violations of the freedom of expression and association generally are accompanied by punishment including deprivation of liberty, temporary detentions, harassment, threats, loss of employment, home searches, adoption of disciplinary measures, etc.  In addition is the control exercised by the Cuban State over citizens' private activities, including the need to obtain permission from the Ministry of Interior to freely travel abroad.  Furthermore, there is still de facto and de jure subordination of the administration of justice to the political authorities, which affects one of the fundamental conditions for the practical observance of this right.  The result is a negative climate of uncertainty and fear among the citizenry, which is reinforced by the weak state of procedural guarantees, especially in those trials that may directly or indirectly affect the system of power that exists in Cuba today.

          14.     The conditions described above, together with the grave economic crisis of recent years, has generated a situation in which approximately 10% of the population[7] lives outside the country, and a large number of people wish to emigrate, by any means, to seek better living conditions.

          IV.   CIVIL AND POLITICAL RIGHTS

          A.        DISCRIMINATION ON POLITICAL GROUNDS RELATIVE TO THE LACK OF FREEDOM OF EXPRESSION, ASSOCIATION AND ASSEMBLY

          15.     The Inter-American Commission on Human Rights has referred in previous reports to the systematic practice of the Cuban State of discriminating against citizens under its jurisdiction for political reasons and the lack of freedom of expression, association, and assembly.  During the period covered by this report, the practice of the Cuban authorities has not changed, nor have the constitutional and criminal provisions on which they rely in so acting.  In other words, the harassment, accusations, adoption of disciplinary measures and prison sentences for persons who peacefully display their disagreement with the political regime in place have persisted.  Such harassment is directed especially at groups geared to supporting human rights, including trade union rights, or political activity.  These groups are characterized by their decision to use only peaceful means in pressing their grievances, despite which the authorities consider their activities illegal, and they are persecuted in various ways.  The criminal offenses most commonly used to characterize these persons' activities include "enemy propaganda," "contempt" (desacato), "unlawful association," "clandestine possession of printed matter," "posing a danger," "rebellion," and "acts against state security."

          16.     Despite the conditions described above, the groups that defend human rights as well as the political groups continued to grow in number in the course of the last two years.  According to the information provided, the importance of these groups is often downplayed by the Cuban State, which labels them "counter-revolutionaries" or "grupúsculos" (derisive-sounding to say "small groups").

          17.     The Inter-American Commission on Human Rights considers, to the contrary, that these groups are an alternative for Cuban citizens who wish to have a space to freely and peacefully discuss the main problems besetting the country.  It is also a form of pluralism within a system characterized by the absolute control exercised by the state over its citizens; such control is implemented through the mass organizations; no intermediate-type organizations are allowed.

          18.     The Inter-American Commission should also note that the right of assembly and the right of association, in addition to being set forth in the American Declaration of the Rights and Duties of Man, and in other international human rights instruments, are closely interconnected.  Based on the freedom of association, a citizen is free to associate with whomever he or she chooses, without being subject to any penalty in respect of the use of his or her other civil, political, economic, and social rights, as a result of such association.  This includes the right to form associations and the right to join already-existing associations, and encompasses all phases of life in a modern society.

          19.     The right to assemble, for its part, consists of the right all persons have to assemble in groups, publicly or privately, to discuss or defend their ideas.  These rights--of association and assembly--are contained in the constitutions of all the states of the Americas, including Cuba.  In effect, Article 54 of the Cuban Constitution states:  "The rights of assembly, demonstration, and association are exercised by the workers, both manual and intellectual, peasants, women, students, and all other sectors of the working people, for which the means necessary to such purposes are provided.  The mass organizations and social organizations have all the facilities to develop such activities, in which their members enjoy the fullest freedom of speech and opinion, based on the unlimited right of initiative and criticism."

          20.     Nonetheless, the right of assembly, like all other rights, duties, and fundamental guarantees set forth in Chapter VII of the Constitution of Cuba, is limited and subordinated to the "construction of socialism and communism."  Article 62 of the Cuban Constitution notes as follows:

          None of the freedoms recognized for citizens may be exercised against the provisions of the Constitution and the laws, nor against the existence and ends of the socialist state, nor against the decision of the Cuban people to build socialism and communism.  Infractions of this principle are punishable.

          21.     As for the freedom of expression, Article 53 of the Constitution provides:  "Freedom of speech and press are recognized for citizens consistent with the purposes of socialist society.  The material conditions for their exercise are present by the fact that the press, radio, television, movies, and other mass media are state-owned or socially owned, and can in no event be privately owned, which ensures their use exclusively in the service of the working people and in the interest of society.  The law regulates the exercise of these freedoms."

          22.     The Inter-American Commission on Human Rights considers that the Cuban Constitution clearly establishes the legal bases for censorship, since the state is the only one that can determine whether oral or written expression, the right to association and assembly, or the rest of the rights set forth in the Constitution are contrary to the prevailing political system.  The Constitution also sets forth the legal bases for the state to direct all activities related to the arts, culture, and the press.

          23.     The intolerance of the government party for any type of political opposition is the main limitation to participation.  This tendency is legitimated by Article 62 of the Constitution.  Indeed, the political practice has shown that prejudice against public opposition is generalized.  Since 1960, all the information media have been in the hands of the state.[8]  There are no legal means for openly challenging the policies of the government or Party, or competing as a group, movement, or political party organization for the right to govern, to replace the Communist Party and its leaders by peaceful means, and to develop new and different policies.  In summary, it is impossible to make open and organized criticism of the policies of the Government and the Party that might make the highest-level leaders susceptible to assuming responsibility, being held accountable, and being removed from office.  In other words, the current Cuban regime persists in employing various methods--control of information and of scientific and cultural pursuit, jailing of dissidents, massive migrations abroad, etc.--to restrict and even eliminate all forms of political opposition.

          24.     During the period covered by this report, the Inter-American Commission on Human Rights has received numerous complaints that demonstrate the conditions described in the preceding paragraphs, i.e. discrimination due to political motives and the violations of the rights to expression, association, and assembly.  Following are some of the relevant complaints:

          a.       A mob of 60 to 80 people in civilian clothing and armed with pipes and chains surrounded the house of Victoria Ruíz Labrit, President of the Comité Cubano de Oposición Pacífica Independiente, so as to impede an alleged meeting of political dissidents.  The events occurred at approximately 8:30 a.m., on August 10, 1995, in the city of Havana.  Everyone who passed by the home of Victoria Ruíz was detained, searched, and asked to show their identification.  At approximately 9:00 a.m. the district delegate for the Poder Popular mass organization and a representative of the Federation of Cuban Women, who stated that they had knowledge of a meeting of "counter-revolutionaries," in response to which Victoria Ruíz invited them to come in, stating:  "I would like you to come in to see that the counter-revolutionaries who are meeting with me are three minors ages 11, eight, and six years."  The state agents refused to enter, but they remained in front of her domicile until noon.

          b.       The Asociación Cívica Democrática reported that in Cuba criminal charges continue to be fabricated against dissidents and human rights activists, with a total lack of procedural guarantees.  In effect, Ismael Morales, 17 years of age, the son of a dissident from the Isla de Pinos, Antonio Morales Torres, was sentenced to six months in prison for an alleged larceny, even though the prosecutor withdrew the charges when the witnesses he had proposed retracted.  On appeal, the innocence of Ismael Morales was amply shown.  Nonetheless, the President of the Chamber declared that they would convict him anyway, assuming full responsibility, since he neither studied or worked.

          c.       Marcos Gonzáles Hernández, María Elena Bayo Gonzáles, Ariel Lavandera López, Regla Tapanes Tapanes, Rodolfo Valdés Pérez, Carlos Denis Denis, Pedro Pablo Denis Blanco, Felipe Lázaro Carranza Díaz, Ileana Curra Luzón, Iván Curra de la Torre, and Jorge Heriberto Alfonso Aguilar were sentenced to three-year prison terms by the Provincial Tribunal of Havana in case 36/94 for the crimes of enemy propaganda and acts against state security.  According to the judgment, it was proved that the accused "in discord with the Cuban revolutionary process and its guidelines, for the purpose of subverting the established social order and to destabilize the bases of our social and economic system...conceived of the idea of drawing up and distributing in different places proclamations, with counter-revolutionary texts, which they carried out by designing a rustic logo and printing up pamphlets with texts such as Abajo Fidel and Plesbiscito."

          d.       During the period covered by this report, the Partido Pro-Derechos Humanos de Cuba denounced the harassment by the Cuban authorities of independent attorneys who have taken up the defense of peaceful dissidents and human rights activists.  According to the information provided, attorneys Leonel Morejón Almagro of the Marianao law office and René Gómez Manzano of the Casación law office were expelled after working for several years defending cases involving human rights violations.  Morejón Almagro was visited at his home on February 9, 1995, by a delegation of the "Single System for Exploration and Vigilance," an agency created by the Cuban regime to intimidate people supposedly "dangerous" to society due to an "apparent deviation in their social conduct," which entails, as a consequence, the opening of a "dangerous status" file with the respective punishment of four years imprisonment.

          e.       The Fundación Solidaria Por la Democracia reported from Havana the cases of four Cuban citizens imprisoned after being convicted for alleged crimes of rebellion and acts against state security.  The persons sentenced, all residents  of the city of Minajarle, municipality of Jiguaní, province of Granma, are as follows:  Leonardo Cabrera Arias, 31 years of age, sentenced to eight years imprisonment; Lino José Molina Basulto, 32 years of age, sentenced to eight years; Ramiro Angel Rodríguez Leyva, 30 years of age, sentenced to seven years; and Jorge Oscar Rodríguez Leyva, 32 years of age, sentenced to eight years in prison.  The four were accused, along with other citizens who were released, "of grouping together and assessing the country's economic, social, and political situation, of hearing foreign radio broadcasts, make written propaganda, and seeking a new hideout for grouping people together."  The accused have argued that their only crime was to meet weekly for Biblical studies.  The investigating judge stated that they "were false religious."  At present all four are at the Las Mangas prison, each on a different floor.

          f.        Also during the period covered by this report, Francisco Chaviano Gonzáles, President of the Consejo Nacional por los Derechos Civiles en Cuba, was detained by State Security agents in Havana and sentenced to 15 years prison.  The detention occurred when state agents broke into his domicile shortly after an unknown person provided him with documents on human rights violations.  The agents also took documentation of that Council, especially with respect to persons who had disappeared at sea when they tried to abandon the country.  Chaviano Gonzáles was led to the Villa Marista barracks, accused of disclosing secret information on state security.  Earlier, Mr. Chaviano had been subjected to frequent acts of intimidation.  Three others, Abel del Valle Díaz, Pedro Miguel Labrador, and Juan Carlos Gonzáles Vásquez, were also tried in the same case with Chaviano.  The trial was held before a military tribunal, even though all the accused were civilians.  The attorney for Abel del Valle Díaz later wrote in the press in Miami, Florida,[9] that the case was investigated secretly by the judge, i.e. without the participation of the attorneys, and that only three days prior to the celebration of the trial was he able to review the proceedings and meet with his defendant.  In addition, the attorney was not given access to the two documents classified "secret" (that addressed how to combat crimes in the area of restaurants, services, and fuel) that were supposedly found in possession of the accused, and that were at the basis of one of the main accusations.  In the course of the judicial process, held behind closed doors, access was denied to several defense witnesses, and friends and relatives were threatened at the entry to the building by members of the rapid action brigades.  Some members of human rights organizations were arrested as they were heading to the court; they were later released.

          g.       In December 1995 the coalition Concilio Cubano asked the Cuban authorities to allow it to hold a national gathering on February 24, 1996.  That meeting never took place.  One official of the Ministry of Interior told Gustavo Arcos, a leader of the group, that the Government would not allow the meeting.  In mid-February 1996 dozens of members of the coalition were detained nationwide, despite the decision of its leaders to cancel the above-noted gathering, so as to avoid any incidents.  Days later the detainees were released; nonetheless, four were tried, convicted, and sentenced to prison.  Lázaro Gonzáles Valdés, vice-delegate and member of the National Secretariat of the Concilio Cubano, was detained on February 15, 1996, and sentenced to 14 months on charges of resistance and contempt for authority (desacato); Leonel Morejón Almagro, 31 years old, member of the Corriente Agramontista and founder of the Concilio Cubano, was detained on February 15, 1996, and sentenced one month later by the Provincial People's Tribunal to 15 months in prison for resisting an official in the exercise of his duties, and for the crime of desacato; Roberto López Montañez, 43 years old, member of the Movimiento Opositor "Panchito Gómez Toro" and of the Alianza Democrática Popular, was detained on February 23, 1996, and sentenced on July 4, 1996, by the Municipal Tribunal of Boyeros to 15 months in prison for the crime of contempt (desacato) for the image of Commander-in-Chief Fidel Castro and falsification of documents; and Juan Francisco Monzón Oviedo, 44 years old, teacher, and member of the National Coordinating Council of Concilio Cubano, was detained on February 15, 1996, and sentenced to six months in prison for "unlawful association" in a summary trial on March 21, 1996.

          B.         FREEDOM OF PRESS

          25.     As has been indicated in this report, since 1960 all the communications media have been state-run.  The functions of the mass media in Cuba, and especially the written press, may be better understood when viewed in light of the functions assigned to them by the doctrine of the party in power in Cuba today.  The written newspapers are assigned the functions of agitation, propaganda, organization, and self-criticism.

          26.     These functions presuppose a shared and unified political outlook, while at the same time they are geared to eliminating the sectors that might oppose this basic conception.  Thus, the task of agitation is part of the ideological struggle, and therefore does not necessarily coincide with the objectivity and veracity that are at the basis of the information function. 

          27.     In view of the propaganda function given the press by the state, the press is also a channel of education and indoctrination in Marxism-Leninism.  Therefore the daily newspaper Granma, Cuba's main paper, is the organ of the Communist Party Central Committee, and devotes much of its content to that objective.  Granma was designed based on Pravda, the organ of the Central Committee of the Communist Party of the former Soviet Union, and was created from the merger of two pre-existing daily papers, Hoy and Revolución.  The frequent discrepancies between the two newspapers led to the decision to merge them and to adopt its current character.

          28.     As indicated in this report, the main newspapers in Cuba reflect only the viewpoints of the government.  Only to a very limited extent do they report on the debates that take place within the high-level organs of state.  As a result, self-criticism is also limited, i.e. it refers to very specific aspects of daily life in Cuba.  It is a role the press plays with a view to transmitting the grievances of the grass-roots to the top echelons of power.  Nonetheless, in no way do the discrepancies overstep the limits set by the requirements of ideological conformity, i.e. in no way can they oppose, or become spokespersons advocating a radical change in the prevailing regime, or that hold upper-level government officials accountable in relation to substantive political issues.

          29.     The limits set by the governing party of Cuba on any type of criticism that represents open opposition to the regime encompass reprisals that range from being laid off, to proceedings that result in prison sentences.  In this regard, for example, the Inter-American Commission on Human Rights was informed that Alexis Castañeda Pérez de Alejo a journalist for the newspapers Vanguardia and Huella, was sentenced to five years in prison for having made statements described as "enemy propaganda."

          30.     Such reprisals, as well as the lay-offs, have led many journalists fired for political reasons to form independent news agencies to provide information to foreign media outlets.  These journalists, however, are subjected to all types of harassment, including searches of their homes, and confiscation of equipment (facsimile machines, tape recorders, cameras, videotapes, etc.).  During the period covered by this annual report, the Inter-American Commission on Human Rights has received abundant information that confirms the information in the preceding paragraphs.  Following are some of the cases that describe the intimidating measures adopted by the Cuban State:

          a.       Néstor Baguer, President of the Agencia de Prensa Independiente (APIC: Independent Press Agency) was seriously injured by an unknown individual who hit him several times; as a result he suffered a broken wrist and several hematomas.  The events occurred in Havana, on March 2, 1995.  On July 11, 1995, members of the State Security force searched his home, seized a facsimile machine, and disconnected his phone service.  Days later Néstor Baguer filed a complaint before the Municipal Court of Plaza to secure the return of what had been confiscated.  Nonetheless, the court clerk refused to admit the document, stating that it had no legal basis.

          b.       Roxana Valdivia, correspondent of Reporters without Borders and member of the Independent Press Agency, was detained May 22, 1995, and held for interrogation for 10 hours.  Since, she has continuously received threatening phone calls.  Orestes Fandevila, Luis López Prendes, and Lázaro Lazo, also members of APIC, were detained and interrogated for several hours on July 8, 1995.

          c.       During the period covered by this report, other independent news agencies were created, such as "Habana Press," "Cuba Press," Círculo de Periodistas de la Habana," and "Patria."  In July 1995, the anniversary of the sinking of the 13 DE MARZO tugboat, several independent journalists were harassed by the Cuban authorities.  On July 12, 1995, one day before the anniversary, Rafael Solano, the director of "Habana Press," was detained for interrogation by State Security agents.  During his detention he was accused of writing articles with a view to damaging the system through subversive radio stations and newspapers, and informed that a proceeding was begun against him under charges of "enemy propaganda."  He was also accused of instigating people to participate in a protest over the sinking of the 13 DE MARZO tugboat.  After 11 hours of interrogation he was taken to his residence and placed under house arrest.  The following day he was taken once again to the State Security offices, where he was given an official warning to suspend his "enemy propaganda" activities involving providing information to the foreign press.

          d.       Also on the second anniversary of the sinking of the 13 DE MARZO tugboat, July 13, 1996, there were a series of arrests and house searches of journalists who try to report outside of the official press.  Joaquín Torres, member of the Habana Press, had his files, equipment, and documentation taken from him for several hours at the Tenth Police Unit of Acosta y Diez de Octubre.

          e.       The Inter-American Commission on Human Rights also received several complaints on journalists who were arrested in the course of 1996:  Julio Martínez, of Habana Press, detained on January 14; Luis Salar Hernández, of the Independent Press Office (BPIC), held in Ciego de Avila on January 19; Raúl Rivero of Cuba Press, detained February 14; Bernardo Fuentes Camblor of the BPIC, detained on January 15, March 6, and August 12, in Camagüey; María de los Angeles Gonzáles and Omar Rodríguez of the BPIC, detained on March 13; Olance Nogueras, of the BPIC, detained April 23, 1996 in Cienfuegos; Yndamiro Restano of the BPIC, detained April 26; Lázaro Lazo, of the BPIC, detained May 24, and interrogated anew on June 24; Joaquín Torres Alvarez, threatened and pressured to leave the country on May 31, and detained on July 12; José Rivero García, of Cuba Press, received threats and work equipment was seized from him on June 9; Norma Britto, of the BPIC, held for interrogation on June 26; Orlando Bordón Galvez, of Cuba Press, interrogated on July 13; Mercedes Moreno, of the BPIC, interrogated on July 15; Néstor Baguer, of the Agencia de Prensa Independiente, interrogated on July 15 and 16; Juan Antonio Sánchez, of Cuba Press, detained on February 14 and July 30; Pedro Argüelles Morán, of Patria, interrogated on August 1; Ramón Alberto Cruz Lima, of Patria, interrogated on August 1 and 7; Magaly Pino García and Jorge Enrique Rivas, of Patria, detained in Camagüey on August 12; and Jorge Olivera Castillo, of Habana Press, interrogated on August 14, 1996.

          31.     The foregoing account is a motive of deep concern to the Inter-American Commission on Human Rights, as it shows that in Cuba there is no freedom of the press that would allow for different political views, which are fundamental for a democratic regime.  To the contrary, radio, television, and the print media are instruments of ideological imposition that follow the dictates of the group in power and are used to transmit the messages from that group to the grass-roots and the intermediate levels. 

          C.         RIGHT TO JUSTICE AND DUE PROCESS

          32.     The American Declaration of the Rights and Duties of Man sets forth the right to justice and due process of law in the following articles:

          Article XVIII.  Every person may resort to the courts to ensure respect for his legal rights.  There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights.

          Article XXVI.   Every accused person is presumed to be innocent until proved guilty.

          Every person accused of an offense has the right to be given an impartial and public hearing, and to be tried by courts previously established in accordance with pre-existing laws, and not to receive cruel, infamous or unusual punishment.

          33.     The doctrine of the Inter-American Commission on Human Rights establishes that the effective observance of the guarantees contained in the articles cited is grounded in the independence of the judiciary, which derives from the classic separation of powers.[10]  This is a logical consequence of 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 enjoy the independence needed to enable it to pass judgment on both the actions of the executive and the legality of the laws passed and even the decisions issued by members of the judiciary itself.  Therefore, the Inter-American Commission on Human Rights considers that the effective independence of the judiciary is an essential requirement for the practical observance of human rights in general.[11]

          34.     In that context, the Inter-American Commission on Human Rights should reiterate, once again, that in Cuba there is still de facto and de jure subordination of the administration of justice to the political authorities.  In effect, during the period covered by this report, the constitutional and criminal provisions have not changed, nor has the practice of the Cuban authorities.  Article 121 of the Constitution of Cuba indicates, for example:  "The courts constitute a system of state organs, structured with functional independence from any other, and subordinated hierarchically to the National Assembly of People's Power and to the Council of State."

          35.     The Inter-American Commission on Human Rights considers that the mere constitutional stipulation of the independence of the judicial organs with respect to political power is not a sufficient condition for ensuring the proper administration of justice.  As this separation of powers is not provided for in the Constitution, the administration of justice is subjected, in fact and in law, to the political authorities.  As derives from Article 121 of the Constitution, the subordination of the courts of justice to the National Assembly of People's Power, and especially to the Council of State, makes the courts depend on the political authorities.  This relationship is reinforced by the function of the Council of State, to exercise "the legislative initiative and regulatory power; decision-making and issuance of rules binding on all the courts, and on the basis of its experience, to give binding instructions in order to establish a uniform judicial practice in the interpretation and enforcement of the law."[12]

          36.  For its part, Article 74 of the Political Constitution provides that the "President of the State Council is the head of state and the head of Government."  In other words, the head of the Cuban State concentrates within himself all of the state organs.  Accordingly, the subordination of all social affairs in Cuba to the political power; the political practice of the regime and the juridical order on which that practice is based; the excluding nature of any different political concept and the absence of effective guarantees that allow individuals to claim their rights from the State--all of these factors together allow the Inter-American Commission on Human Rights to consider that this is a totalitarian political system.

          37.     It is also important to note that the Council of State,--a political organ-- issues rules "binding on all the courts."  And those courts have to apply and interpret rules that include terms so imprecise as "the existence and purposes of the socialist state," "the decision of the Cuban people to build socialism and communism," and "socialist legality."  Subordinated to that interpretation are all the "freedoms recognized for the citizens"; and the administration of justice takes it upon itself to apply the possible interpretations in the particular cases.  This ideological and political bias has as its cornerstone Article 5 of the Cuban Constitution:

          The Communist Party of Cuba, inspired by the ideals of José Martí and Marxist-Leninist, organized vanguard of the Cuban nation, is the highest-level leading force of the society and the state, which organizes and orients common efforts towards the lofty aims of building socialism and advancing towards communist society.

          38.     The subordination of the administration of justice to the political authorities sparks great insecurity and fear in the citizenry, and is reinforced by the weak state of procedural guarantees, especially in those trials that may directly or indirectly affect the political system in place.  The procedural guarantees are set forth in the Constitution at Articles 59, 61, and 63:

          Article 59.  No one shall be tried or convicted by other than a competent court under the laws prior to the offense and with the formalities and guarantees established by these laws.

          Every person accused has the right to defense.

          No violence or coercion of any kind shall be brought to bear to force persons to testify.

          Any statement made in violation of this precept is void and the persons responsible shall be punished as provided by law.

          Article 61.  The criminal laws have retroactive effect when favorable to persons being prosecuted or already convicted.  No other laws shall have retroactive effect unless otherwise provided out of considerations of social interest or public utility.

          Article 63.  All citizens shall have the right to direct complaints and petitions to the authorities and to receive the attention or pertinent responses, and at an appropriate place, pursuant to the law.

          39.     In theory, these three articles recognize six rights in respect of due process and the right to justice:  1) to be tried by a regular jurisdiction; 2) to be assisted by counsel; 3) to inviolability and personal integrity while in the custody of the authorities; 4) not to be forced to testify during the trial, which is linked to the guarantee against statements made under torture; 5) to be judged based on provisions of criminal law enacted prior to when the offense was alleged; and 6) the right to recur freely to the courts to seek justice.

          40.     In practice, however, these procedural guarantees are inoperable.  The main limitation is the Constitution itself, which provides at Article 62 that none of the freedoms recognized in the Constitution can be exercised "against the existence and aims of the socialist state."  The significance of this provision lies in the fact that it regulates, at the highest level, the practical exercise of the rights and freedoms recognized by the Constitution as enjoyed by Cuban citizens, in their relations with the state organs.  Therefore the provisions of this article can be considered to permeate all political, economic, social, and cultural life in Cuba. 

          41.     The Inter-American Commission on Human Rights also calls into question the setting of constitutional limits on rights and liberties based on criteria so vague and imprecise as, for example, "the decision of the Cuban people to build socialism and communism."  It is clear that these criteria lie outside the legal ambit, falling squarely in the realm of politics.  Consequently, the only governing party in Cuba will ultimately decide, in each case, whether the exercise of a given freedom or right is opposed to this postulate.  This eliminates any possibility of defense for the individual in the face of the political authorities, and confers constitutional protection on the arbitrary exercise of power vis-à-vis the people of Cuba.

          42.     The guarantees deemed to be associated with impartial procedure generally include the right to be informed of accusations against one's person, the right to choose defense counsel, the right of the accused to confront his accusers, the right of the accused and his counsel to have sufficient time to prepare the defense, the right of the accused to bring witnesses and examine them, and the right of the accused and defense counsel to be advised in timely fashion of the trial date.