ANNUAL REPORT OF THE IACHR 2007

CHAPTER IV

CUBA

I.        COMPETENCE FOR OBSERVING AND EVALUATING THE HUMAN RIGHTS SITUATION IN CUBA

84.  The authority of the Inter-American Commission on Human Rights to observe the human rights situation in Cuba derives from the provisions of the OAS Charter, from the Commission’s own Statute, and from its Rules of Procedure. Under the Charter, all member states undertake to respect fundamental individual rights, which, in the case of states not parties to the Convention, are those rights established in the American Declaration of the Rights and Duties of Man (hereinafter, “the American Declaration”), which is a source of binding international obligations.[101] The Statute charges the Commission with paying particular attention to the observance of the human rights recognized in Articles I (right to life, to liberty, to security and humane treatment), II (right to equality before the law), III (right to religious freedom and worship), IV (right to freedom of investigation, opinion, expression and dissemination), XVIII (right to a fair trial), XXV (right of protection from arbitrary arrest), and XXVI (right to due process of law) of the American Declaration when exercising its jurisdiction vis-à-vis countries that are not parties to the Convention.[102]

85.              On November 21^st, 2007, the Commission sent this report to the State of Cuba and asked for its observations. On December 10^th, 2006, the Commission received a communication from the Chief of the Section of Cuban Interests in Washington D.C., in which he expressed that “[t]he Inter-American Commission on Human Rights does not have competence, nor does the OAS have moral authority to analyze this or any other issue regarding Cuba”.

86.              Cuba has been a member state of the Organization of American States since July 16, 1952, when it deposited its instrument of ratification of the OAS Charter. The Commission has maintained that the Cuban State “is juridically answerable to the Inter-American Commission in matters that concern human rights” since it is “party to the first international instruments established in the American Hemisphere to protect human rights” and because Resolution VI of the Eighth Meeting of Consultation[103] “excluded the Government of Cuba, not the State, from participating in the intra-American system.”[104] In this regard, the IACHR has said that:
 

The Commission’s consistent position has been that when it excluded the Cuban Government from the inter-American system, it was not the intention of the Organization of American States to leave the Cuban people without protection. That Government’s exclusion from the regional system in no way means that it is no longer bound by its international human rights obligations.[105]

II.         SITUATION OF HUMAN RIGHTS IN CUBA

87.              In the exercise of its authority, the IACHR has observed and evaluated the human rights situation in Cuba in special reports,[106] in the fourth chapters of its Annual Reports,[107] and by means of the case system.[108] The IACHR has also, on various occasions, asked the State of Cuba to adopt precautionary measures in order to protect the lives and personal integrity of Cuban citizens.[109]

88.              In accordance with the criteria established by the IACHR in 1997 to identify those states whose human rights practices deserve special attention, the first and the fifth criteria are applicable to the human rights situation in Cuba, inasmuch as the political rights enshrined in the American Declaration are not observed and structural conditions that seriously and gravely affect the enjoyment and practice of the fundamental rights established in the American Declaration persist.

89.              During 2007 the Commission has received information regarding the general human rights situation in Cuba from international agencies, civil society, and the Cuban Government through the official web page of the Ministry of Foreign Affairs of Cuba. In addition, at public hearings held at its 128th and 130th regular periods of sessions, it received information about the conditions facing prison inmates,[110] on the situation of imprisoned union members,[111] and on compliance with the recommendations issued in Case 12.476 (Oscar Elías Biscet et al.).[112]

90.              Restrictions on political rights, freedom of expression, and dissemination of ideas have created, over a period of decades, a situation of permanent and systematic violations of the fundamental rights of Cuban citizens, which is made notably worse by the lack of independence of the judiciary.

91.              Regarding the restriction of political rights, the State of Cuba has said that:

The restrictions for some political rights in Cuba, that have been set out by law, have been the bare minimum needed to guarantee the protection of the right to free determination, peace and life of all the people, as an answer to the growing anti-Cuban aggressiveness of the empire.[113]

92.              Similarly, regarding the right of free expression, it maintains that:

The Cuban people only restrict the “freedom” of opinion and expression of those few who would sell their services as mercenaries to the policy of hostility, aggression and genocidal blockade of the United States government against Cuba. By applying such restrictions, Cuba is acting by virtue of not just its national legislation, but also the numerous international human rights instruments and successive resolutions passed by the United Nations General Assembly which have demanded respect for the free determination of peoples and the cease of the economic, commercial and financial blockade being applied by the government of the United States against Cuba.[114]

93.              The Commission finds it necessary to reiterate that the absence of free and fair elections based on universal secret suffrage as the expression of the people’s sovereignty[115] violates the right to political participation established in Article XX of the American Declaration of the Rights and Duties of Man, which provides:

Every person having legal capacity is entitled to participate in the government of his country, directly or through his representatives, and to take part in popular elections, which shall be by secret ballot, and shall be honest, periodic and free.

94.              Similarly, Article 3 of the Democratic Charter signed in Lima, Peru, on September 11, 2001, defines the elements that make up a democratic system of government:

Essential elements of representative democracy include, inter alia, respect for human rights and fundamental freedoms, access to and the exercise of power in accordance with the rule of law, the holding of periodic, free, and fair elections based on secret balloting and universal suffrage as an expression of the sovereignty of the people, the pluralistic system of political parties and organizations, and the separation of powers and independence of the branches of government.

95.              During 2007, the IACHR has observed and evaluated the situation of human rights in the State of Cuba and has decided to include, in this chapter of its Annual Report, the following considerations, which chiefly deal with guarantees of due legal process and the independence of the judiciary; the detention conditions in which political dissidents are held, and harassment of dissidents; restrictions on freedom of expression, and harassment targeting independent journalists; and the situation faced by human rights defenders and trade union leaders. It also includes comments on the economic and commercial sanctions imposed on the Government of Cuba, and it again states that they must be lifted inasmuch as they tend to aggravate restrictions on the effective exercise of economic, social, and cultural rights by the Cuban people.

96.              In assessing the human rights situation, the Commission again notes that it applauds the major progress made by Cuba in reducing infant mortality, in providing access to drinking water, and in the areas of housing, health care, and the foodstuffs sector.

Cuba is a middle-income country, belonging to the group of countries with high human development (ranking 50 out of 177). According to national reports, three of the eight Millennium Development Goals have already been achieved: universal primary education; gender equality; and reduction of infant mortality.

…

Drinking water is available to 95.6 per cent of the population. However, differences from one area to another can still be observed, water supply can be unstable, and the grid suffers from technical problems.

…

In the area of housing, a national programme of construction, conservation and rehabilitation (Programa Constructivo de Viviendas) was adopted by the National Assembly of People’s Power in September 2005.

…

Health plays an important role in Cuba’s development strategy. Some noteworthy developments are: measures to reduce infant mortality, leading to the lowest rates in Latin America; immunization of boys and girls against infectious diseases; elimination of preventable diseases through vaccination campaigns, and reduction of the maternal mortality rate. The prevalence of HIV/AIDS is low and a system of ongoing epidemiological monitoring has been set up, taking into account the country’s geographical location in the Caribbean, one of the areas with the highest prevalence in the world.

…

In the food sector, availability and consumption of foodstuffs has been increased by the adoption of various modes of marketing and social programmes. An equitable system of rationing with subsidized prices has been introduced and special diets for vulnerable groups are provided for. Less than 2 per cent of the population is at risk of malnutrition.[116]

III.        GUARANTEES OF DUE LEGAL PROCESS AND INDEPENDENCE OF
                          THE JUDICIARY

97.              Every person is entitled to recourse before the courts,[117] to protection from arbitrary arrest,[118] and to due process of law.[119] Those rights are a part of what are known as the guarantees of due legal process and represent the minimum guarantees recognized with respect to all individuals in judicial proceedings of all kinds.

98.              The American Declaration provides that every human being has the right to liberty[120] and that no persons may be deprived of their liberty except in the cases and according to the procedures established by pre-existing law.[121] Furthermore, under the American Declaration, every individual who has been deprived of liberty has the right to have the legality of that detention ascertained without delay by a court, and the right to be tried without undue delay or, otherwise, to be released.[122] In addition, 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.[123]

99.              During the period covered by this report, the IACHR continued to receive information indicating that the Cuban courts persist in judging cases in accordance with political and ideological criteria in contravention of Cuba’s international human rights obligations.[124]

100.          The Commission therefore urges Cuba to bring its procedures into line with international standards of due process, to ensure that individuals who have recourse to the courts in order to determine their rights and responsibilities enjoy minimum legal guarantees in exercising their defense. The Commission believes that the existing legal framework does not comply with Cuba’s international obligations in this regard. The full currency of the judicial guarantees enshrined in the American Declaration depends on the existence of an independent and autonomous judiciary. The Commission has repeatedly said that there is no separation of powers in Cuba; consequently, there is no guarantee of justice free of interference from the other branches of government.

101.          In connection with this, Article 121 of the Constitution of Cuba provides that: “The courts constitute a system of state bodies, established with functional independence from all other systems, and subordinated only to the National Assembly of People’s Power and the Council of State.” The Commission notes that the subordination of the courts to the Council of State, chaired by the head of state, means that the judiciary is directly dependent on instructions handed down by the executive branch of government. Cuba’s courts of law do not have the independence required for the performance of their duties and, consequently, individuals are guaranteed neither due legal process nor the right of recourse to the courts for obtaining a fair trial, particularly in cases of a political nature.

IV.        DETENTION CONDITIONS OF POLITICAL DISSIDENTS[125]

102.          In 2007, the Commission continued to observe the detention conditions of political dissidents in Cuba and to receive information on degrading treatment by prison authorities against political opponents.[126]
 

103.          On October 21, 2006, the Commission resolved to convey to the State and to the petitioners’ representatives,[127] to publish, and to include in its Annual Report to the OAS General Assembly, its Report on Merits Nº 67/06, in Case 12.476 (Oscar Elías Biscet et al.), which deals with 78 political dissidents who were arrested and tried in extremely summary proceedings during 2003 under Article 91[128] of the Cuban Criminal Code and Law 88 (Law on the Protection of Cuba’s National Independence and Economy), for actions related to the exercise of such basic freedoms as freedom of thought, conscience, belief, and speech and the right of peaceful assembly and free association. The sentences ranged from 6 months to 28 years in prison.

104.          In Report Nº 67/06, the IACHR concluded:

1.         That the State is responsible for violations of Articles I, II, IV, VI, XX, XXI, XXII, XXV and XXVI of the American Declaration, to the detriment of Nelson Alberto Aguiar Ramírez, 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, Luis Enrique Ferrer García, Orlando Fundora Álvarez, Próspero Gaínza Agüero, Miguel Galbán Gutiérrez, Julio César Gálvez Rodríguez, Edel José García Díaz, José Luis García Paneque, Ricardo Severino González Alfonso, Diosdado González Marrero, Léster González Pentón, Alejandro González Raga, Jorge Luis 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, Luis 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, and Orlando Zapata Tamayo.

2.         That the State violated Article V of the American Declaration, to the detriment of Nelson Alberto Aguiar Ramírez, Martha Beatriz Roque Cabello, José Luis García Paneque Miguel Sigler Amaya, Guido Sigler Amaya, Ariel Sigler Amaya, Julio Antonio Valdés Guevara, and Miguel Valdés Tamayo.

3.         That the State violated Article X of the American Declaration, to the detriment of Marcelo Cano Rodríguez, Efrén Fernández Fernández, Galbán Gutiérrez, Miguel Normando Hernández González, José Ubaldo Izquierdo Hernández, Librado Ricardo Linares García, Luis Milán Fernández, Fabio Prieto Llorente, Félix Navarro Rodríguez, Blas Giraldo Reyes Rodríguez, Omar Rodríguez Saludes, Omar Moisés Ruiz Hernández, Claro Sánchez Altarriba, and Héctor Raúl Valle Hernández.

4.         That the State violated Article XVIII of the American Declaration, to the detriment of Nelson Alberto Aguiar Ramírez, 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, Luis Enrique Ferrer García, Orlando Fundora Álvarez, Próspero Gaínza Agüero, Miguel Galbán Gutiérrez, Julio César Gálvez Rodríguez, Edel José García Díaz, José Luis García Paneque, Ricardo Severino González Alfonso, Diosdado González Marrero, Léster González Pentón, Alejandro González Raga, Jorge Luis 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, Luis Milán Fernández, 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, and Orlando Zapata Tamayo.

5.         That the State did not violate Articles IX, XI and XVII of the American Declaration.[129]

105.          In addition, the IACHR recommended that the State of Cuba:

1.         Order the immediate and unconditional release of the victims in this case, while overturning their convictions inasmuch as they were based on laws that impose unlawful restrictions on their human rights.

2.         Adopt the measures necessary to adapt its laws, procedures and practices to international human rights laws. In particular, the Commission is recommending to the Cuban State that it repeal Law No. 88 and Article 91 of its Criminal Code, and that it initiate a process to amend its Constitution to ensure the independence of the judicial branch of government and the right to participate in government.

3.         Redress the victims and their next of kin for the pecuniary and non-pecuniary damages suffered as a result of the violations of the American Declaration herein established.

4.         Adopt the measures necessary to prevent a recurrence of similar acts, in keeping with the State’s duty to respect and ensure human rights.[130]

106.          According to information received by the IACHR, 16[131] individuals were released from prison on parole under the “extrapenal license” mechanism[132] on the grounds that they were seriously ill,[133] and Rafael Millet Leyva was released on December 19, 2006. The IACHR was also informed about the restrictions of labor rights encountered by persons released from prison on extrapenal license.[134]

107.          The remaining victims in Case 12.476 are still in prison.

108.          Under the American Declaration of the Rights and Duties of Man, all individuals have the right to humane treatment during the time they are in custody.[135] In several of its reports, the Commission has addressed the topic of detention conditions in Cuba.[136]  The Commission is of the view that the State’s responsibility with regard to the humane treatment of persons held in its custody is not confined to the negative obligation to refrain from practicing torture or mistreating such persons.  Since prisons are places where the state has total control over the life of the prisoners, its obligations towards them include the control and security measures required to preserve the life and protect the integrity of persons deprived of liberty.

109.          According to the information received by the IACHR,[137] the prison authorities – either directly or with the assistance of other convicts – continue to mistreat political prisoners: they are subjected to beatings and attacks, kept in isolation for long periods, and not provided with the medical assistance needed for the illnesses they suffer. In addition, they are held at prisons far away from their home towns in order to make visiting difficult; family visits are denied or restricted; foodstuffs or medicines sent by their relatives are restricted or denied; and they are kept from meeting with officials from international human rights bodies. This leads to a serious deterioration in the physical and/or mental health of imprisoned dissidents.[138]

110.          Various of the victims of Case 12.476 have health problems that have emerged or been aggravated during their detention, without the provision of adequate medical care.[139]  With regard to health conditions, the Commission has previously expressed its concern regarding the large number of convicts who suffer from chronic visual, renal, cardiac, and pulmonary ailments and are not given appropriate medical attention; this group includes several prisoners of advanced years. Moreover, the IACHR has been told that prison authorities prevent the relatives of imprisoned political dissidents from supplying them with drugs needed to treat their illnesses that are not provided by the State.  Thus, the State has not observed the principles established in the United Nations’ Standard Minimum Rules for the Treatment of Prisoners.[140]

111.          During 2007, as a part of its duties in monitoring compliance with the recommendations[141] set out in Report on Merits N° 67/06, Case 12.476, the IACHR again reiterated to the State of Cuba its recommendation for the immediate release of the victims in the case and, in particular, it requested information on the current health of Normando Hernández González and Jorge Luis García Paneque and on the medical attention being provided to them.

112.          On June 11, 2007, the IACHR received information indicating that Normando Hernández González was suffering from a series of intestinal illnesses.[142] On June 18, 2007, the IACHR asked the State to release him and to adopt protective measures until such time as he was released. On August 31, 2007, the IACHR repeated its request of June 18. According to press reports, on September 14, 2007, Normando Hernández González was transferred from Kilo 7 prison in Camagüey to the Carlos J. Finlay military hospital in the city of La Havana.

113.          On June 28, 2007, the IACHR received information indicating that Jorge Luis García Paneque’s body weight had fallen 36 kg after developing, while in prison, malabsorption syndrome of the intestine, a disease that causes chronic attacks of diarrhea and bleeding colitis. The Commission was also told that since being sent to prison in March 2003, Mr. García Paneque’s health had constantly worsened, due to the inhuman conditions he was exposed to in the detention center. On June 29, 2007, the IACHR asked the State to release him and to adopt protective measures until such time as he was released.[143]

114.          Similarly, José Gabriel Ramón Castillo,[144] after being confined to a punishment cell for 15 months at the Villa Clara Juvenile Prison, suffered damage to his central nervous system and other pathologies, and because of this his existing ailments worsened.[145]

115.          With regard to the use of isolation cells, the IACHR has ruled that:

Isolation is an exceptional measure designed to prevent obstacles to an investigation into the facts.  After examining the material facts of this case, it has been deduced that isolation was not used as an exceptional measure, but in several cases it was used instead as additional punishment of an indefinite nature, which is contrary to the United Nations’ Minimum Standard Rules for the Treatment of Prisoners.[146][147]

116.          The IACHR was also told about the grave prison conditions facing seven of the nine[148] trade unionists convicted in 2003 for their involvement in independent workers’ organizations; in some of those cases, the conditions constitute inhumane treatment. The information describes the grave health conditions of the imprisoned unionists, claims that the State does not provide the medical attention they need, and, in particular, reports on the very delicate health of Pedro Pablo Álvarez.

117.          In addition, with reference to prisoners of conscience not included in the group of 78 dissidents, on February 28, 2007, the Commission granted precautionary measures to protect the life and person of Mr. Francisco Pastor Chaviano, who suffered serious injuries to his face and head as a result of beatings meted out by prison guards.[149] At the public hearing on the “Situation of persons in jail in Cuba,”[150] held on July 20, 2007, during the IACHR’s 128th regular session, one of Francisco Pastor Chaviano’s daughters gave testimony on her father’s condition. On August 10, 2007, the Commission was told that Francisco Pastor Chaviano had been released from prison.

118.          The IACHR appreciated the decision by the Cuban Government to release Francisco Pastor Chaviano.  Nonetheless, the Commission notes that the recourse of release of prisoners for humanitarian reasons continues to be implemented on a discretionary basis, without following clear, objective, egalitarian criteria imposed by independent judges.

119.          At the same time, the IACHR notes that Mr. Jorge Luis García Pérez-Antúnez, imprisoned in 1990, was released from jail on April 22, 2007, upon completion of his entire prison sentence. The IACHR was told that Mr. García Pérez-Antúnez suffered frequent beatings at the hands of other inmates and that the authorities had threatened that he would never leave prison alive; for that reason, on November 21, 2006, it granted precautionary measures on his behalf.[151]

120.          At the same time, the Commission has noted its concern at what are known as “acts of repudiation” carried out against political dissidents paroled from jail under extrapenal licenses. These acts of repudiation involve harassment and intimidation carried out by members of groups of government supporters, among them the Committees for the Defense of the Revolution and the People’s Rapid Response Brigades, against people they consider “counter-revolutionaries.”[152]

121.          These acts of repudiation carried out against political dissidents, involving participants with ties to the Government of Cuba, ignore the human dignity and liberty owed to all persons, irrespective of their political ideas, and they are in breach of the American Declaration of the Rights and Duties of Man.