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REPORT Nº 47/96
CASE 11.436
VICTIMS OF THE TUGBOAT "13 DE MARZO" vs. CUBA
October 16, 1996
I.
BACKGROUND
1.
On July 19, 1994, the Inter-American Commission on Human Rights
received a complaint stating that in the early morning hours of July
13, 1994, four boats belonging to the Cuban State and equipped with
water hoses attacked an old tugboat that was fleeing Cuba with 72
people on board. The
incident occurred seven miles off the Cuban coast, opposite the port
of Havana. The complaint
also indicates that the Cuban State boats attacked the runaway tug
with their prows with the intention of sinking it, while at the same
time spraying everyone on the deck of the boat, including women and
children, with pressurized water. The pleas of the women and children to stop the attack were
in vain, and the old boat--named "13 de Marzo"--sank,
with a toll of 41 deaths, including ten minors.
Thirty-one people survived the events of July 13, 1994.
2.
On February 28, 1995, the Inter-American Commission on Human
Rights received another complaint concerning the same events, which
was added to Case File No. 11.436, in accordance with Article 40.2 of
its Regulations.
II.
PROCEEDING BEFORE THE COMMISSION
3.
The Commission, by letter of March 7, 1995, initiated the
proceeding on the matter and asked the Cuban Government to provide
information on the events subject of said communication, as well as
any relevant factors that would enable it to determine whether all
remedies under domestic jurisdiction had been exhausted.
4.
In a letter dated 23 March 1995, the Cuban Interests Section
transmitted to the Commission a copy of the remarks by President Fidel
Castro to the Cuban communication media and an official communique by
the Ministry of the Interior mentioning the events of July 13, 1994.
5.
On March 30, 1995, the aforementioned documents were
transmitted to the petitioners, who sent their observations on May 4,
1995. These were
transmitted to the Cuban Interests Section on May 10 of the same year.
6.
The petitioners asked to be heard by the Inter-American
Commission on Human Rights during its 90th Regular Session.
Consequently, the Commission extended an invitation to the
petitioners and representatives of the Cuban Interest Section, to
present their arguments concerning the events in the present case.
Said hearing took place on September 7, 1995.
The petitioners--Movimiento Cuba 21--were represented by
Lic. Sergio Ramos, Lic. Guillermo
Toledo, Dr. Belquis Rodríguez, and Mr. Jan Fernández. The Inter-American Commission on Human Rights also heard the
testimony of two of the survivors, Arquímedes Lebrigio and José
Alberto Hernández. The
Cuban Interest Section did not send any representative.
7.
The petitioners' arguments in said hearing were submitted to
the Commission in writing on August 31, 1995.
The Commission, by letter of September 20, 1995, forwarded said
documentation to the Cuban Interest Section and gave it 60 days to
submit its comments thereon.
8.
On February 2, 1996, the petitioners asked the Inter-American
Commission on Human Rights for a report including the respective
findings, pursuant to Article 46.2 of its Regulations.
9.
The Commission, in a letter of March 27, 1996, again asked the
Cuban Government for information, allotting it a period of 30 days to
comply.
10. At
its 92nd Regular Session, the Inter-American Commission on Human
Rights approved Confidential Report No. 16/96, which was sent to the
Government of Cuba on May 3, 1996, so that it might make whatever
observations it deemed pertinent within three months of the
transmittal date.
11. The
Cuban Government did not respond to Confidential Report No. 16/96,
approved by the Inter-American Commission on Human Rights during its
92nd regular session.
III.
DENOUNCED EVENTS
According to the information provided to the Inter-American
Commission on Human Rights, the events that occurred are the
following:
A.
Sinking of the tug "13 de Marzo"
12. On
July 13, 1994, at approximately 3:00 a.m., 72 Cuban nationals who were
attempting to leave the island for the United States put out to sea
from the port of Havana in an old tugboat named "13 de Marzo".
The boat used for the escape belonged to the Maritime Services
Enterprise of the Ministry of Transportation.
13. According
to eyewitnesses who survived the disaster, no sooner had the tug
"13 de Marzo" set off from the Cuban port than two
boats from the same state enterprise began pursuing it.
About 45 minutes into the trip, when the tug was seven miles
away from the Cuban coast--in a place known as "La Poceta"--two
other boats belonging to said enterprise appeared, equipped with tanks
and water hoses, proceeded to attack the old tug.
"Polargo 2," one of the boats belonging to the Cuban
state enterprise, blocked the old tug "13 de Marzo" in the
front, while the other, "Polargo 5," attacked from behind,
splitting the stern. The
two other government boats positioned themselves on either side and
sprayed everyone on deck with pressurized water, using their hoses.
14. The
pleas of the women and children on the deck of the tug "13 de
Marzo" did nothing to stop the attack.
The boat sank, with a toll of 41 dead.
Many people perished because the jets of water directed at
everyone on deck forced them to seek refuge in the engine room.
The survivors also affirmed that the crews of the four Cuban
government boats were dressed in civilian clothes and that they did
not help them when they were sinking.
15. Later,
Cuban Coast Guard cutters arrived and rescued 31 survivors.
After being rescued, the survivors were taken to the Cuban
Coast guard post of Jaimanitas, which is located west of Havana.
From there, they were taken to the Villa Marista Detention
Center, which also serves as State Security Headquarters.
The women and children were released and the men were held.
16. The
victims who died in the incident of July 13, 1994 are:
Leonardo Notario Góngora (27), Marta Tacoronte Vega (36),
Caridad Leyva Tacoronte (36), Yausel Eugenio Pérez Tacoronte (11),
Mayulis Méndez Tacoronte (17), Odalys Muñoz García (21), Pilar
Almanza Romero (30), Yaser Perodín Almanza (11), Manuel Sánchez
Callol (58), Juliana Enriquez Carrasana (23), Helen Martínez Enríquez
(6 months), Reynaldo Marrero (45), Joel García Suárez (24), Juan
Mario Gutiérrez García (10), Ernesto Alfonso Joureiro (25), Amado
Gonzáles Raices (50), Lázaro Borges Priel (34), Liset Alvarez Guerra
(24), Yisel Borges Alvarez (4), Guillermo Cruz Martínez (46), Fidelio
Ramel Prieto-Hernández (51), Rosa María Alcalde Preig (47),
Yaltamira Anaya Carrasco (22), José Carlos Nicole Anaya (3), María
Carrasco Anaya (44), Julia Caridad Ruiz Blanco (35), Angel René Abreu
Ruiz (3), Jorge Arquímides Lebrijio Flores (28), Eduardo Suárez
Esquivel (39), Elicer Suárez Plascencia, Omar Rodríguez Suárez
(33), Miralis Fernández Rodríguez (28), Cindy Rodríguez Fernández
(2), José Gregorio Balmaceda Castillo (24), Rigoberto Feut Gonzáles
(31), Midalis Sanabria Cabrera (19), and four others who could not be
identified.
17. The
surviving victims are: Mayda
Tacoronte Verga (28), Milena Labrada Tacoronte (3), Román Lugo Martínez
(30), Daysi Martínez Findore (26), Tacney Estévez Martínez (3),
Susana Rojas Martínez (8), Raúl Muñoz García (23), Janette Hernández
Gutiérrez (19), Modesto Almanza Romero (28), Fran Gonzáles Vásquez
(21), Daniel Gonzáles Hernández (21), Sergio Perodín Pérez (38),
Sergio Perodín Almanza (7), Gustavo Guillermo Martínez Gutiérrez
(38), Yandi Gustavo Martínez Hidalgo (9), José Fabián Valdés (17),
Eugenio Fuentes Díaz (36), Juan Gustavo Bargaza del Pino (42), Juan
Fidel Gonzáles Salinas (42), Reynaldo Marrero Canarana (16), Daniel
Prieto Suárez (22), Iván Prieto Suárez (26), Jorge Luis Cuba Suárez
(23), María Victoria García Suárez (28), Arquímides Venancio
Lebrijio Gamboa (52), Yaussany Tuero Sierra (20), Pedro Francisco
Garijo Galego (31), Julio César Domínguez Alcalde (33), Armando
Morales Piloto (38), Juan Bernardo Varela Amaro, and Jorge Alberto
Hernández Avila (33).
B.
Refusal of the Cuban Government to recover the victims' bodies
18. In
the days following the tragedy, relatives of the victims who had
drowned asked the Cuban authorities to recover the bodies from the
bottom of the sea. The
official response was that there were no special divers available to
recover the bodies.
19. The
nonprofit organization "Hermanos al Rescate" (Brothers to
the Rescue)--which is dedicated to rescuing Cuban boat people trying
to escape from the island--asked the Cuban Government for permission
to fly over the spot where the events took place, to help recover the
bodies, but the request was immediately denied. To date, none of the drowning victims' bodies has been
recovered by the Cuban authorities, despite the fact that the sinking
of the tug "13 de Marzo" occurred in Cuban territorial
waters.
IV.
ACTIONS TAKEN BY THE CUBAN STATE
20. On
March 23, 1995, the Cuban Interest Section sent the Inter-American
Commission on Human Rights an English copy of the Official Statement
of the Ministry of the Interior, describing the investigations carried
out by the Cuban Government. The title of said statement indicated that the "Ministry
of the Interior reports on the accident caused by the illegal attempt
to leave the country."
21. Said
statement indicated that "The investigations carried out by the
competent [Cuban] authorities into the incident that occurred on the
morning of July 13 [1994], in which a tug belonging to the Maritime
Services Enterprise of the Ministry of Transportation sunk seven miles
north of the port of Havana, revealed that the disaster occurred as a
result of a collision between said tug and another from the same
company that was trying to capture it."
22. "The
tug '13 de Marzo' was stolen by a group of people from the dock where
it was moored. Before taking the tug, the leaders of the group intending to
leave the country illegally, disabled the port's communications
system. There was a
report concerning the boat, which indicated the existence of leaks.
The perpetrators were aware of this and irresponsibly failed to
repair the boat before going ahead with the escape."
23. "In
the attempt to stop the robbery, three boats from the Maritime
Services Enterprise of the Ministry of Transportation (MITRANS) tried
to intercept the tug. This was the cause of the unfortunate accident that led to
the sinking of the tug [13 de Marzo].
Coast guard units patrolling the area near the place where the
events occurred immediately joined the three MITRANS ships in a rescue
operation to save the victims of the disaster."
24. "Because
of the navigating conditions and the rough seas (Force 3) during the
early morning hours, only 31 people were saved.
The survivors of the disaster were taken to shore at the port,
where they received medical treatment.
The other members of the group vanished.
The main leader has been incarcerated."
25. "This
unfortunate accident demonstrates once again how unscrupulous
individuals take the lives of many people, including women and
children, because of their wish to emigrate illegally from our country
and to be welcomed as heroes by the United States, despite the fact
that the American authorities--as we all know--deny them visas to
travel in a normal manner."
V.
POSITION OF THE PARTIES
A.
The Cuban Government
26. In
a letter dated March 23, 1995, the Cuban Government sent the
Inter-American Commission on Human Rights a copy of the speech of
President Fidel Castro to the Cuban news media on August 5, 1994.
In this speech, the Cuban Head of State spoke of the events of
July 13, 1994 as follows: "...it
[the United States] wants at all costs to undermine the country's
economic effort, as part of its overall plan to destroy the
Revolution. Radio
broadcasts, subversive propaganda, all of this is spearheaded from
outside and is encouraged abroad.
But, to be sure, this concrete fact--this phenomenon--has been
much more clearly in evidence in recent weeks, starting with the
accident involving the tug '13 de Marzo'.
I believe that one of the most infamous and most grossly
cynical acts of the United States Government occurred because of this
accident."
27. "(...) As soon as news of the tug accident arrived, a thorough and
exhaustive investigation was immediately carried out, based on
information provided by the survivors, those who had been rescued,
what each of them said; based on the information provided by some of
those responsible for the seizure of the boat; the meticulous,
detailed information provided by each of those who were on the tugs
concerning each of the events that occurred, and as the facts became
known, they were reported. Three
reports were prepared, as more data were collected, exactly on what
had occurred. (...) and
it was they, the tug workers, who, as soon as they realized that the
seizure of the tug--in this case the theft, the stealing of the
tug--had occurred, acted swiftly to prevent them from taking the
tug."
28. "Those
who took the tug had accomplices, among them the one who had the key
to the padlock, and they had the skipper of another tug.
They destroyed the communications, and the tug workers were not
even able to communicate with the coast guard; the coast guard learned
of it later. All of this
occurred within about an hour and 20 minutes, from the time they took
the boat until it was sunk. They
tried to prevent the departure, and the boat they took, the stolen
boat even collided with one of the boats that was trying to prevent it
from leaving, there at the entrance to the bay, and this tug and the
others kept trying somehow to stop the tug, to prevent it from being
stolen. The Coast Guard,
informed later, received instructions to go to the place were these
events were taking place, but it all happened very quickly."
29. "We
know exactly what happened: one
boat positioned itself in front to try to slow the speed, another boat
positioned itself behind, and another boat went to the side, but none
of the crews had the intention of sinking that boat.
They were attempting something very difficult, actually, that
is, to stop a boat. All
of this happened at night, on a dark night, in rough seas; in these
conditions there were trying to stop it until the Coast Guard patrol
boats arrived. This is
how the accident happened: the
one that went behind collided with the stern--and sailors and everyone
who knows anything about the sea will realize that this is perfectly
possible--of the stolen tug, the one that had been taken, with the 13
de Marzo, and that is how the collision occurred that led to the
sinking; that's how it was; it was really an accident, and this was
thoroughly investigated by the authorities, the Ministry of the
Interior investigated and there was not the slightest intention to
sink the boat. What are
we going to do with those workers who did not want them to steal their
boat, who made a truly patriotic effort, we might say, to stop them
from stealing the boat? What
are we going to say to them? Listen,
let them steal the boat, don't worry about the boat, and they went out
to try--even though it was not their job--to keep them from stealing
the boat."
30. "The
Coast Guard had nothing to do with it, they arrived there a few
minutes after the accident. The
tugs that were trying to stop the robbery threw them the lifesavers
they had, a few lifesavers. They
had boarded a tug that had at least one leak, in very poor condition
for doing that; it was tremendously irresponsible, that tug would have
sunk even if there hadn't been a collision."
31. "They
had only a few lifesavers--those tugs are small, they have only a few
crew members--they threw the lifesavers they had and pulled some out,
even some crew members, and with some danger, because there was the
risk that they would seize their own tugs.
The Griffing patrol ships arrived with a lot more equipment,
many more lifesavers, much more experience, and pulled 25 people from
the water; between the tugs and the patrol ships they pulled 31 people
from the water. But it
was all a deplorable, grievous, unfortunate accident.
We are all distressed that it happened."
32. "The
workers' behavior was exemplary, there's no denying it, because they
tried to stop them from stealing the boat.
What are we to say to them now, let them steal the boats, their
livelihood? The actions
of the Coast Guard crews were irreproachable, they saved 25 lives.
So, this is what happened and as soon as information became
available, more details were given.
Three reports were prepared concerning the incident.
However, the tug accident became the raw material for a
terrible campaign against our country; it became the raw material for
a campaign of disgusting slander, truly disgusting, and the United
States Government was a willing participant, because, without finding
out what happened and how it happened, it blamed the Cuban authorities
for sinking the boat. With
incredible perfidy, it said: 'Government
ships.' In a socialist
state everything belongs to the State:
buses, trains, boats, merchant ships, tugs, but they are
operated by civilians, and the authorities were represented there
essentially by the Coast Guard patrols."
33. "But
I saw a great deal of perfidy in the attempt to describe the ships as
'government' ships, because what they meant to say is that the
Government was responsible for sinking the boat.
They also issued statements, angry speeches in the Senate,
warnings against committing these brutal acts, they called it
'brutal'; but it was all meaningless, for in fact the authorities had
saved 25 lives. What was
the reason for this? It
was revealed, they not only launched a libelous campaign but also
wanted to take the matter to the United Nations as part of the scheme
and the strategy they were formulating, because they want to intervene
in other countries through these international organizations.
The idea is clear, the intentions, starting that way, and to
continue agitating."
34. "The
Coast Guard received a complete explanation from the Ministry of the
Interior about what to do to avoid accidents, to avoid the use of
weapons if at all possible; they actually told them:
'Do not use any weapons.'
But, in fact, for a patrol boat to stop a ship at night, when
things have already reached a certain point, is practically
impossible." "The
Coast Guard crew received numerous instructions about how to handle
this problem, and besides, what for?--because we don't have any
special need to stop a departing boat."
35. "(...)
There will always be time in history to hold each individual
responsible for his actions. To
demand investigations! When
we investigated ourselves first, without anyone demanding it, and no
one can demand it, because only our conscience, our duty, and our
sense of responsibility can demand and do demand that we conduct an
investigation in any case of this type; but, then, to demand
investigations!"
36. "How
do they reward our effort to obey the law every time an accident
occurs, by accusing us of being murderers, accusing us, even, of
stowing corpses? They
spread gossip, rumors that corpses were stowed away, they accuse us of
being keepers of corpses." "What
they did because of the accident of the tug 13 de Marzo was to give
the order to steal as many boats here as can be stolen.
I actually believe that tug was stolen on July 13.
But by July 26, a boat was stolen, one of the ones they usually
use to transport passengers from Casablanca, which carry 10,000 or
12,000 people every day."
B.
The petitioners
37. In
their response of May 4, 1995, the petitioners stated inter alia
that "The people [who were attempting to leave Cuba] went
directly to the tug '13 de Marzo' without doing anything else.
The alleged damage to the communications systems of the
state-owned Empresa Mambisa de Navegación is untrue.
All of the enterprise's communications system were intact.
Moreover, the other tugs had their radio communication systems
intact and were under the control of the Government personnel who were
operating them. This
means that they could easily have informed the authorities and
received instructions from their control centers or from the Cuban
Coast Guard and Navy corps."
38. "Upon
departing, the passengers in the boat '13 de Marzo' saw two tugs, in
the dark, on either side of the outlet from Havana Bay.
The survivors indicate that as soon as they passed them, they
started their pursuit, spraying water on them with their hoses to
flood them and sink them. The
speed of the other tugs' reaction should be noted.
This means that their basic crew was already on board and ready
to set out. Notice that
Castro himself acknowledges and admits that there was a tug at the
mouth of the bay that tried to stop the departure and that the others
kept trying to stop it. Castro
himself says that the entire incident, from the departure to the
rescue of the victims 7 miles off the Cuban coast took one (1) hour
and twenty (20) minutes. This
supports the theory of the prior preparation of the other ships, i.e,
that there was an ambush, and that the Cuban Government knew in
advance of the escape plan, and perhaps to give a warning to prevent
people from getting in the habit of taking ships to flee the country
in search of freedom. The
massacre was premeditated."
39. "One
of the acts reported by all of the survivors was the fact that almost
as soon as they left the mouth of the Bay of Havana, the two
heavy-draft, iron tugs made by Polaca began to spray water on the old
tug '13 de Marzo' to try to flood it and sink it.
Castro claims that the tug was leaking.
If this were true, the operators of the other tugs knew it, so
why did they spray it with water if not to sink it even faster?
This is not the way to stop a ship in flight, as Castro
alleges, but rather to sink it."
40. "The
pursuing tugs were new, larger, made of iron, and faster.
The fleeing tug, the '13 de Marzo,' was old, made in the 40s,
slower, smaller, and made of wood.
Logically, it had everything to lose in a deliberate collision
with the tugs pursuing it."
"Castro speaks of a 'collision' at the mouth of the bay
and another on the open sea. However,
the survivors' report indicates that the '13 de Marzo' was hit by
several of the tugs pursuing them.
In her testimony, survivor Janet Hernández tells us that the
MININT tugs started bumping into their sides.
It was seven miles off the Cuban coast, after losing the
captain, who was thrown overboard by the impact of the jets of water,
that one of the fugitives stopped the boat's engines.
It was then that the largest of the tugs pursuing them rammed
the '13 de Marzo' in the stern and split it; and then returned to the
charge and rammed the bow, causing it to sink.
If it had been a random accident, it would have received only
one hit, but not two serious, separate blows, with time elapsing
between the two. Moreover,
anyone with a little knowledge of navigation and logic will realize
that objects in water do not stop abruptly, but come to a gradual
stop. Consequently, this
was a 'collision' that could have been avoided.
This barrage of hits and these attacking boats prove that the
sinking was intentional."
41. "It
is widely and publicly known that the coasts opposite Havana Bay are
constantly patrolled by Soviet-made type p-4 or p-6, high-speed
torpedo boats, or 'TURYA' type gunboats (commonly known as Griffings).
These boats are capable of reaching speeds of 40 to 50 knots.
If, as Castro claims, they appeared on the scene and remained
at a distance, why did they not act rapidly to stop the action of the
attacking tugs? This
comes up in the survivors' reports and demonstrates the complicity of
the military authorities in these macabre acts."
42. "The
survivors' report reveals that despite the victims' pleas to stop
trying to sink them, showing them the children on board, they
continued their macabre persecution by spraying water on the deck, to
the point that they forced the women and children to seek shelter in
the cabins because of the danger of being thrown into the sea by the
pressure of the jets of water. When
the boat sank after the collisions, 40 people were trapped in there,
23 of them children. Had
they been able to remain on deck, many would have been saved."
43. "The
survivors also describe how those who were able to jump into the sea
received no help from the tug crews.
On the contrary, they began circling at a high speed around the
people in the water to create whirlpools and thus drown them.
The survivors say that it was not until the 'Griffing' patrol
boat and another small boat arrived that they were pulled from the
sea. The tug crews were
indifferent to those who were drowning, looking on and enjoying the
Dante-esque spectacle, the work of their villainy."
44. "It
should be pointed out that those who were rescued and/or survived were
taken to the headquarters of Castro's political police, the Department
of State Security, in the gloomy 'Villa Marista' torture center.
However, none of the aggressors was punished or tried by the
courts of law, despite the crime committed.
On the following day, the
women were released, but not the men.
The women told the international press what happened, as stated
in our reports to you."
45. "A
few days later the Cuban Government claimed that it could not go down
to investigate the blows sustained by the sunken boat, or recover the
bodies, because it lacked the necessary equipment and personnel.
We refute this claim because the Cuban armed forces have
frogmen units that were well trained by the former Soviet Union.
It also refused the offer of Cuban exiles who are qualified for
this work, and it even prevented the service organization Brothers to
the Rescue from approaching the spot where the incident occurred to
help rescue victims and recover bodies."
46. "In
his public appearance, Castro covered up for the murderers by
applauding this act as a true patriotic effort, claiming that none of
the crew members intended to sink the boat.
It should be pointed out that if it was not murder, then it was
negligence; nevertheless, none of the aggressors was tried in court;
instead, they were absolved and applauded by the Cuban Head of State.
The Cuban Criminal Code states that negligence does not excuse
the commission of a crime (Article 48), and punishes it with sentences
of 5 to 8 years."
47. "Assessing
the facts and pursuant to the Cuban Criminal Code, the perpetrators of
these acts committed the crimes of major destruction (Article 195),
violation of the rules of navigation or maritime traffic (Article
209), murder (Article 36), crimes violating international law (Article
123), and, above all, genocide (Article 124, subparagraph 2)."
48. "In
his appearance, Castro affirmed that it was perfidious to call the
ships Government ships, because what they meant to say by this is that
the Government was responsible for sinking the boat, and he pointed
out that they were operated by civilians.
With this argument, the Cuban Head of State tried to excuse his
Government. However, if
we look at how the State is structured internally, we realize that
every activity is under centralized State control."
49. "According
to the Socialist Political Constitution of 1976, the means of
production are state-controlled (Articles 15, 16 and 17) and the
economy is centralized. Everyone
who works for state enterprises is an employee of the Government.
Within each state enterprise there are two types of controls:
(a) management control, exercised by the director,
and (b) political control, which is the responsibility of the
Secretary of the Communist Party for that enterprise.
The Communist Party is the country's only legal party (Article
5 of the Constitution). A
third important factor in these enterprises is the presence of members
of the security police, who are in the Party's employ and who serve as
agents or informants of the Department of State Security."
50. "Another
aspect that Castro did not mention is that there are certain
enterprises that are classified as strategic and are therefore
military reserves of the Revolutionary Armed Forces, such as Civil
Aviation and Maritime Transport.
The Maritime Navigation Enterprises are Armed Forces reserves
and are chiefly coordinated by and attached to the security agencies
and armed forces of the Cuban State."
51. "One
interesting fact is that the survivors identified the attacking tugs
as belonging to MININT (Ministry of the Interior).
This Ministry's functions encompass police and state security
matters, as well as the organs of repression of the Cuban State.
It is obvious that the crime was committed by the repressive
forces of the dictatorship. Moreover,
centralism is one of the characteristics of the system.
No major decision can be taken without the approval of Castro
or of a high-level Government agency.
This case is no exception, given the presence of the
surveillance element and the type of organization involved.
This act had to have been planned and directed by high-level
Government agencies."
52. "There
are behavioral factors that support this argument.
It is the custom of the Cuban State, when it is carrying out
acts of repudiation and aggression against dissidents (witness the
case of the poet María Elena Cruz Varela) to use agents of the
Department of State Security dressed in civilian clothes, along with
cadres from the Communist Party and the Young Communists Union.
This attack against defenseless civilians was planned,
orchestrated and directed by the Communist Party and State Security
and involved the direct participation of both."
53. At
the hearing before the Inter-American Commission on Human Rights on
September 7, 1995, the petitioners stated inter alia that
"We have no doubt whatsoever that on the morning of July 13,
1994, the 72 people who left Havana Bay by seizing the old wooden tug
and who were fleeing Cuba in search of the liberty denied them there,
were pursued and their vessel rammed by three of the Cuban State's
most modern tugs; and this occurred as soon as they left the bay.
While they were executing these maneuvers, they also sprayed
jets of water on the people who were on the deck of the tug '13 de
Marzo,' who pleaded that there were children on board, to stop
spraying them with water and stop ramming their boat, that they were
giving up and returning to Cuba.
Finally, at a distance of 7 miles from the Cuban coast, a blow
to the stern caused the tug '13 de Marzo' to sink."
54. "To
complete the spectacle, the Cuban State tugs circled around the people
who were still afloat, creating whirlpools so that they sank, and
continued spraying them with jets of water.
The death toll of this abominable crime, of this genocide, was
41 people, including several children.
Three days after the incident, some of the 31 survivors were
rescued by other Cuban State ships and not by the tugs.
The first thing the Cuban State did was to arrest these
survivors and, on the second day, release the women and children.
Of particular note is the testimony given in Havana by survivor
María Victoria García Suárez after her release.
WSCV Channel 51 managed to get the interview out of Cuba.
The television images of this woman crying and accusing the
Cuban Government moved the public.
María Victoria García Suárez, who is still in Cuba, told how
she lost her husband, her 10 year-old son, her brother, and three
uncles and two cousins."
55. "Then,
other eyewitnesses in Cuba, such as Janet Hernández, overcame their
fear of government repression and told the outside world the truth
about the incident. It should be pointed out to this distinguished Commission
that the survivors' testimonies, given on different dates and in
different places, are consistent, which proves the absolute truth of
the crime committed by the Cuban Government."
56. "The
first reaction of the Cuban Government through its representative in
the Cuban Interest Section in Washington, D.C., Mr. Rafael Dausá, was
to describe the survivors' testimonies as 'science fiction.'
On July 15, 1994, the Cuban Government, through Mr. Dausá,
said that the tug '13 de Marzo' was '9 years old and no longer used
because of its appalling condition.'
'It was no miracle,' Dausá said.
'It sank because of its poor mechanical condition.
The irresponsible attitude of these pirates caused the
accident.' (See the
article from the newspaper 'El Nuevo Herald de Florida' of Saturday,
July 16, 1994)."
57. "That
same day, July 16, 1994, the Cuban Government changed its version of
the previous day in a statement issued by the Ministry of the
Interior, stating that an investigation had been conducted, which
revealed that the tug '13 de Marzo' had sunk because of a collision
with another tug that was trying to catch up with it.
The statement went on to say that the leaders of the group
attempting to flee Cuba illegally had destroyed the port
communications system of the Interior Ministry's Maritime Services
Enterprise, the owner of the tug '13 de Marzo,' that the tug had a
leak, and that those responsible for the incident knew it, which made
them irresponsible for not fixing this problem before continuing with
the escape. It also said
that in an effort to prevent the theft, three tugs tried to intercept
the '13 de Marzo' and it was then that the unfortunate accident
occurred that caused the latter to sink."
58. "According
to the statement of the Ministry of the Interior, two coast guard
ships that were on patrol in the area joined the three tugs in a
rescue operation to save the victims of the accident.
The statement concludes by blaming those who were fleeing Cuba
in the tug '13 de Marzo' for the 'alleged' accident."
59. "Following
this statement announcing the investigation of the incident by the
Cuban Ministry of the Interior, the Cuban Government maintained
official silence on the matter, except for a few statements of the
Chief of the Army, Raúl Castro, on July 26, 1994, in which he
repeated the official version in order to show that the sinking was
accidental. On August 5,
1995, the Cuban Head of State, Fidel Castro Ruíz, held a press
conference as a result of the disturbances against his government by
more than 30,000 Cubans in Havana that day.
In this interview, he enlarged upon the events involving the
sunken tug and confirmed the Government's version.
The transcript of this interview is the one submitted to this
distinguished Commission by the Cuban Government, together with the
brief note on the investigation of the incident by the Cuban Ministry
of the Interior."
60. "In
this interview, Fidel Castro elaborated on the Cuban Government's
version of what happened to the tug '13 de Marzo'.
In it, he distorted certain facts, concealed others, and
generally lied about what actually happened.
The first thing that jumps out is his statement--incredible
from any perspective--that his Government conducted a thorough and
exhaustive investigation. How
can it be believed that two days after the events occurred, that is,
in so short a time, his Government could have conducted a thorough and
exhaustive investigation? Can
any sensible person believe that the simple statement issued by the
Ministry of the Interior concerning the investigation it conducted was
the product of a thorough and exhaustive investigation?"
61. "Moreover,
on August 5, 1994, when Fidel Castro again spoke of the events
involving the tug '13 de Marzo', 23 days had elapsed since its
sinking. Is it possible
that an exhaustive and thorough investigation could be conducted of an
event of such a magnitude as the sinking of said tug 7 miles off the
Cuban coast? Where is the
seriousness, the responsibility, and the sensitivity of a government
and of a leader who dare to lie publicly in this manner, in a case
where 41 innocent people lie dead at the bottom of the sea?
So far, we have not seen this thorough and exhaustive
investigation carried out by the Cuban Government.
We don't know if the Cuban Government has made anything else
public."
62. "A
thorough and exhaustive investigation would have involved raising the
tug '13 de Marzo' and delivering the bodies to their relatives.
If the Cuban Government was unable, because of its resources to
raise the sunken tug, then it could have requested help from other
governments and international organizations.
The Cuban Government can still demonstrate its good faith and
its 'alleged' interest in the truth by allowing international
organizations, such as this distinguished Commission, to conduct an
independent investigation both outside and within Cuban territory and
attempt to raise the tug '13 de Marzo'.
This distinguished Commission should note that the Cuban
Government, through its Ministry of the Interior and its Head of
State, in its version of what happened, remains silent about the jets
of water that the men on the three pursuing tugs sprayed on those who
were sinking in the tug '13 de Marzo'.
The Cuban Government should be asked why it remained silent
about this matter, when all of the survivors relate this fact.
Or is it perhaps that the Cuban leaders realized that admitting
this truth would cast doubt on their claim that the sinking of the '13
de Marzo' was accidental?"
63. "The
Cuban Government should be asked what it meant when it said that the
tug crews "kept trying somehow to stop the tug, to prevent it
from being stolen..." Aren't these expressions a veiled attempt to conceal the
facts, that the manner of stopping them was to attack the tug '13 de
Marzo' and spray its occupants with jets of water?
64. "How
can the Cuban Government and its leader be believed when they say that
those who were fleeing in the tug destroyed the company's port
communications and that this is why the Coast Guard learned of it
later? What this is
supposed to suggest is that the people who were on the three pursuing
tugs were unable to communicate from shore with the Coast Guard, so
they were the ones who stopped the tug that sank.
The claim that the Coast Guard learned of it later contradicts
the report of the survivors that the Coast Guard ships were following
the '13 de Marzo' as soon as it left the bay."
65. "The
Cuban leader should be asked what he meant by the statement 'the Coast
Guard learned of it later.' By
what means and from whom did they learn of it?
How much time after the tug '13 de Marzo' left the port was the
Coast Guard informed? Obviously, a thorough and exhaustive investigation could not
leave these and many other questions unanswered.
Furthermore, it slipped the Cuban Government's mind that the
Coast Guard naval units have radios on their ships and that the tugs
also have radios to communicate with other vessels or their bases on
shore. Here is another of
the Cuban Government's lies."
66. "Although
Fidel Castro tried to establish that the operators of the three
pursuing tugs were civilian employees of Empresas Mambisas de Navegación
and that they were acting in their own interest, in our petition of
May 4, 1995 to this distinguished Commission, we clearly show that the
men at the helm of those tugs were State Security employees.
We reach this conclusion not only because of the nature of the
Cuban system, but also because the survivors' testified that it was
so. These same State
Security employees, dressed as civilians, are members of the 'Swift
Action Brigades' that the Cuban Government sends into the streets with
weapons and clubs to beat dissidents."
VI.
QUESTIONS RAISED IN THIS CASE
67. The
other question to be resolved is whether the sinking of the Tugboat
"13 de Marzo" took place with the support or tolerance of
the public authorities or whether the latter acted in such a way that
the violation occurred for want of prevention or with impunity.
That is, the Inter-American Commission on Human Rights must
determine whether the Cuban State is internationally liable for the
deaths of the 41 people who were trying to flee the country on the
morning of July 13, 1994.
VII.
GENERAL CONSIDERATIONS
A.
Considerations regarding the formal requirements of
admissibility
68. The
Inter-American Commission on Human Rights has handled this case in
accordance with the provisions of Chapter III of its Regulations.
Article 51 of said chapter states that "The Commission
shall receive and shall examine petitions containing a complaint about
alleged violations of the human rights enshrined in the American
Declaration of the Rights and Duties of Man in respect of member
States of the Organization which are not signatories of the American
Convention on Human Rights."
69. The
above statement leads the Inter-American Commission on Human Rights to
conclude that it is competent to hear this case as it involves
violations of rights enshrined in the American Declaration of the
Rights and Duties of Man: Article
I on the Right to Life and Personal Integrity; Article VIII, Right of
Residence and Movement; and Article XVIII, Right to Justice.
70. The
procedure followed in this case is that provided for by Article 52 of
the Regulations of the Inter-American Commission on Human Rights,
which states: "The
procedure applicable to petitions concerning member States of the
Organization which are not signatories of the American Convention on
Human Rights shall be that established in the General Provisions
contained in Chapter I, Title II; in Articles 32-43 of these
Regulations, and in the articles indicated below."
71. The
presentation of the petition satisfies the formal requirements of
admissibility set forth in Article 32 of the Regulations of the
Inter-American Commission on Human Rights, the procedure provided for
in Article 34 of the same regulatory text having been exhausted.
Likewise, the claim is not pending in another international
settlement proceeding, nor is it the repetition of a prior petition
already examined by the Commission.
72. Regarding
the remedies under domestic law, the Inter-American Commission on
Human Rights considers that in the present case, the provisions of
Article 37(1) of its Regulations have been fulfilled, that is, said
remedies have been applied for and exhausted in accordance with the
generally recognized principles of international law.
This is inferred from the information provided by the Cuban
Government on March 23, 1995. According to the Official Statement of the Ministry of the
Interior, "the investigations carried out by the competent
authorities concerning the events that occurred in the early morning
hours of July 13, [1994] (...) revealed that the disaster occurred as
a result of a collision between said tug and another from the same
company that was trying to capture it."
(...) "This
was the cause of the unfortunate accident that led to the sinking of
the tug [13 de Marzo]." "Because
of the navigating conditions and the rough seas (Force 3) during the
early morning hours, only 31 people were saved."
B.
Considerations regarding the facts denounced and analysis of
the evidence
73. In
the present case, documents have been submitted that provide
information on the facts denounced, which facts were moreover made
public knowledge by the international press.
Among the documents submitted to the Inter-American Commission
on Human Rights is the following testimonial evidence of persons who
were present at the site of the events and at the time they occurred
on July 13, 1994: Arquímedes
Lebrigio and José Alberto Hernández (surviving witnesses who
appeared before the Inter-American Commission on Human Rights during
its 90th Regular Session, September 7, 1995),[1] María Victoria García
Suarez, Jeanette Hernández Gutierrez (survivors).[2]
74. The
statements of the eyewitnesses show that on July 13, 1994, between
3:00 and 4:00 a.m., a tug called "13 de Marzo" left the port
of Havana, Cuba, headed for the United States, and that there were 72
people on board, including a number of minors.
75. The
surviving witnesses concur in stating that they were overtaken and
surrounded by four boats when they were seven miles off the Cuban
coast, and that the latter turned jets of water on them--on everyone
on deck--using the tanks with which they were equipped.
The women who were on deck showed them the children to prevent
the attack with the water hoses from continuing.
Moreover, two of the ships rammed the tug on the port and
starboard sides, causing it to sink. The survivors agree that while the disaster was occurring,
the crews of the four ships did not help them.
Later, Cuban Coast Guard cutters arrived to rescue the
survivors of the wreck. |
