IACHR - ANNUAL REPORT 2008
 

CHAPTER IV - HUMAN RIGHTS DEVELOPMENTS IN THE REGION

CUBA (Continuation)

4.         Restrictions on Freedom of Expression

207.          The Commission has repeatedly held that Cuba is the only country in the Hemisphere where it can be stated categorically that there is no freedom of expression.[290] Such statements are based essentially on the persistent problems reflected in the following conditions:  a) deprivation of personal freedom as a result of expression of opinions or criticism by journalists and dissidents; b) restrictions to the right of access to information over the Internet; c) indirect restrictions on the practice of journalism; and, d) the criminalization of public demonstrations.

a.         Deprivation of personal liberty as a result of expression of opinions or criticism by journalists and dissidents

208.          The Commission observes with concern that in Cuba there are still more than 20 journalists in prison and that the health of a number of them has deteriorated as a result of the conditions in which they are held. This makes Cuba the country with the highest number of imprisoned journalists in the region.

209.          Having said that, the Commission notes the release of two independent journalists: Alejandro González Raga, a freelancer reporter; and José Gabriel Ramón Castillo, the director of the press agency Instituto Cultura y Democracia Press. Both of them were arrested in March 2003 during the so-called “Black Spring” operation.[291]

210.          The Commission has also been told that the director of the independent newsletter Porvenir, Yordi García Fournier, was arrested in Guantanamo province and convicted in a summary trial on September 3, charged with resistance and disobedience. According to the information received, the reporter had gone to visit a friend in jail and was arrested after shouting anti-government slogans.[292]

211.          As in previous reports, the Commission observes that the State uses criminal proceedings as a mechanism to punish and restrict free expression of opinions. Many of the journalists who are currently incarcerated were tried criminally for violations of Section 91 of the Criminal Code, and Law No. 88, and also the utilization of the figure “potentially criminally dangerous to society”. The Commission has established that such criminal offenses and descriptions “constitute a means of silencing ideas and opinions, as they deter any type of criticism out of fear of the punishment described above.  In the opinion of the Commission, practices of this sort affect the very essence of the right to freedom of investigation, opinion, expression, and dissemination established in Article IV of the American Declaration.  The Commission further emphasizes that by virtue of the collective dimension of this right, these provisions affect not only the persons who are punished by the Cuban courts that apply them, but also Cuban society as a whole.”[293] According to information available to date, these legal provisions continue to be in effect.

212.          The Commission reiterates that criminal proceedings and sentences issued on the basis of this provision, are incompatible with the exercise of the right to freedom of investigation, opinion, expression, and dissemination, constitutes violation of Article IV of the American Declaration, inter alia, to the detriment of all the victims.

            b.         Restrictions on the Right to Access Information on the Internet

213.          Restrictions on the right to access information continue to be of concern to the Commission. These restrictions are reflected, in part, by the difficulty in obtaining information about the situation as regards freedom of expression, which makes it complicated to record all the possible violations of this right and any possible progress in terms of guarantees for the exercise of this right.

214.          The Commission recognizes that in 2008 it was made possible for Cubans to have access to cell phones and electronic devices, such as computers. However, according to information received, certain rules that restrict full Internet access remain in place.[294]  Public connections are available at cyber cafés (which are government-controlled) and hotels, but reportedly the cards or passes needed to use these connections are expensive and sometimes hard to find.[295]  Bloggers[296] sometimes use these public connections or those of foreign agencies, for example, to publish their reports. Certain servers, such as Yahoo and Hotmail MSN continue to be hard to access.[297]

215.          According to information received by the Commission, after the Cuban government announced this lifting of measures in March of this year, there were problems for several days in the ability to access blogs on the desdecuba.com platform, including one of the most popular in the country, Yoani Sánchez’s Generation Y[298]. In May, Sánchez won the Ortega and Gasset award given by the Spanish newspaper El País de Madrid in the Digital Journalism category but he was denied permission to leave Cuba to attend the award ceremony in Spain.[299] In addition, in May of 2008, the television program “Round Table” showed photographs, private electronic mail and telephonic recordings that, according to government officials, were part of a criminal investigation against opposition leaders. According to the information received, the Ministry of the Interior used its authority to violate postal and electronic correspondence without prior judicial permission.[300] The display of private electronic mail on the program, had an impact on the users of Cuba Morón Mail. According to the information received, many users stopped going to the navigation room and stopped accessing their electronic mail accounts.[301]

216.          With regard to the Internet, the Commission recalls that it

[...] is an instrument that is capable of strengthening the democratic system, contributing to the economic development of the countries of the region, and strengthening the full exercise of freedom of expression.  The Internet represents a technology unprecedented in the history of communications, that provides for rapid access and transmission to a universal network of multiple and varied information.  Maximizing citizens’ active participation by promoting use of the Internet contributes to the political, social, cultural, and economic development of countries, and strengthens democratic society.  The Internet in turn has the potential to be an ally in promoting and disseminating human rights and democratic ideals and a significant tool for activating human rights organizations, since its speed and scope make it possible to transmit and receive immediately situations affecting the fundamental rights of individuals in different regions of the world.”[302]

217.          The Commission would like to emphasize that Principle 4 of the Declaration of Principles on Freedom of Expression states that “access to information held by the state is a fundamental right of every individual.  States have the obligation to guarantee the full exercise of this right.  This principle allows only exceptional limitations that must be previously established by law in case of a real and imminent danger that threatens national security in democratic societies.”

c.         Restrictions and Harassment of Independent Journalists

218.          In addition, the Commission has received information in 2008 of instances of intimidation and harassment of journalists by police agents, which constitute restrictions on the exercise of the freedom of expression. As an example, in April of this year journalist Ernesto Corría Cabrera working for press agency Nueva Prensa Cubana, was arrested and expelled from Havana to Camaguey after printing a news report in the United States Interests Section at the Swiss Embassy. According to information received, the journalist was accused of violating a decree that requires that anyone who does not live in the Cuban capital must request special permission if they remain for more than 24 hours. On several occasions State Security agents had warned the reporter that if he did not cease his journalistic efforts, he would be subject to prosecution for violations of Law 88.[303]

219.          In addition, Carlos Serpa Maceira, a journalist working for the Prensa Sindical Press Agency and correspondent for Misceláneas de Cuba, denounced that in June 2008 he was arrested by State Security agents and moved to a police station where he was charged with promoting “provocative and mercenary actions under the direction of the United States of America’s Interests Section in Cuba.” Serpa Maceira was warned by the police that he should cease his journalistic effort and they threatened him with deportation to Isla de la Juventud for not having official permission to reside in Havana.[304]

220.          In this regard, Principle 9 of the Declaration of Principles for the Freedom of Expression provides, among other things, that intimidation and threats constitute a violation of fundamental individual rights and “severely limits the freedom of expression.” The Commission understands that the arrest and subsequent restrictions and intimidations to which the reporters were subjected are clear cases of limiting journalistic efforts and, therefore, the exercise of the freedom of expression.

d.         Criminalization of Public Demonstrations

221.          The Commission observes that actions taken to repress social demonstrations continue.  This situation has particularly affected the so-called Ladies in White, a group that is permanently repressed for the protests it stages,[305] as is described in Section VI of this report, which deals with the situation of human rights defenders.

222.          The Commission points out that “participation of societies through public demonstrations is important to strengthen the democratic life of societies.  Generally speaking, as a manifestation of freedom of expression and freedom of assembly, it plays a key social role, which leaves the state little room to justify a restriction of this right.” [306]

223.          In this regard, the Commission reiterates the opinion of its Office of the Special Rapporteur for Freedom of Expression which, in its 2002 Report, stated that

the per se criminalization of public demonstrations is, in principle, inadmissible, provided they take place in accordance with the right of free expression and the right of assembly.  In other words, the question is whether the application of criminal sanctions is justified under the Inter-American Court’s stance whereby such a restriction (i.e. criminalization) must be shown to satisfy an imperative public interest that is necessary for the functioning of a democratic society.  Another question is whether the imposition of criminal sanctions is the least harmful way of restricting the freedom of expression and right of assembly exercised through a demonstration in the streets or other public space.  It should be recalled that in such cases, criminalization could have an intimidating effect on this form of participatory expression among those sectors of society that lack access to other channels of complaint or petition, such as the traditional press or the right of petition within the state body from with the object of the claim arose.  Curtailing free speech by imprisoning those who make use of this means of expression would have a dissuading effect on those sectors of society that express their points of view or criticism of the authorities as a way of influencing the processes whereby state decisions and policies that directly affect them are made. [307]

224.          In this sense, the Commission reiterates the pressing need that States, when imposing restrictions on this form of expression, conduct a rigorous analysis of the interests it intends to protect by way of the restriction, taking into account the high level of protection merited by the right to assembly and the freedom of expression as rights that give form to citizen participation and to the oversight of State actions in public matters.[308]

5.         Freedom of Association

225.          According to the American Declaration, every person has the right to work,[309] to peaceful assembly[310] and to associate with others to promote, exercise and protect their legitimate interests.[311] With regard to the right of association, the Commission reiterates its concern for the existence of only one officially recognized union that is mentioned in Cuban legislation that has been the focus of the permanent attention of the International Labour Organization. The Commission emphasizes that one of the guiding principles of the Constitution of the International Labor Organization, of which Cuba is a signatory, includes the “recognition of the principle of freedom of association” as an essential requirement for “universal peace and harmony.”

226.          The IACHR has continued to receive information on the situation of human rights of workers and union leaders in Cuba. The information refers primarily to restrictions on the right of association.[312]

227.          The Inter-American Commission observes that the Commission of Experts on the Application of Conventions and Recommendations of the International Labour Organization, ILO,[313] in its 2008 Report, in addressing the Convention on the freedom of association and the protection of the right to organize, stated that the Cuban government once again reiterates that the process of revising the Labor Code is continuing and that, for this purpose a broad consultation procedure is being carried out, including with the 19 national branch unions and the Confederation of Cuban Workers.[314] In this respect, the Committee observes that this process has been going on for many years without tangible results as yet being achieved.[315]

228.          The Commission of Experts observed in its report that it has been referring for many years to the need to delete the reference to the Confederation of Cuban Workers from Sections 15 and 16 of the Labor Code of 1985 and in that regard, it asked the Government to take the necessary to ensure that all workers, without distinction, be able to establish and join organizations of their own choosing and to take measures to modify the above sections of the Labor Code.[316] Moreover, the Commission of Experts urged the Government to amend section 61 of Legislative Decree No. 67 of 1983 to guarantee trade union pluralism, for example, by replacing the reference to the Confederation of Cuban Workers with the expression “most representative organization.”[317]

229.          Despite the Cuban Government’s assurance to the Commission of Experts that Cuban legislation does not establish any prohibition on the right to strike, nor does the legislation establish any penalty for the exercise of this right, and that it is the prerogative of trade union organizations to make the respective decisions, the Commission of Experts referred to the fact that the right to strike is not recognized in the legislation and that its exercise in practice is prohibited[318] and it requested the Government to take measures to ensure that no one is discriminated against or prejudiced in their employment for having peacefully exercised this right, and to keep it informed in this connection.[319] In addition, the Commission of Experts asked the Government again to take the necessary measures for the immediate release of union leaders sentenced to severe penalties of imprisonment, given that the Government refers to generic charges, without indicating the tangible acts which gave rise to the conviction of these persons.[320]

230.          The Commission of Experts mentioned specific cases of arrest of workers of the Independent National Workers’ Confederation of Cuba (CONIC), persecution and threats of imprisonment against delegates of the Light Industry Workers’ Union (SITIL), and the confiscation of materials and humanitarian aid sent from abroad to the Single Council of Cuban Workers (CUTC).[321]

231.          Based on the foregoing, the Commission considers that acts of harassment against union members who seek to uphold their right to freedom of association constitute a violation of human rights.[322]
 

  6.         Human Rights Defenders

232.          The IACHR received information about some actions that impede the efforts of those who promote and defend human rights in Cuba. Specifically, the situation of Ms. Laura Pollán Toledo, leader of the “Ladies in White” organization,[323] who were under surveillance of Government Security agents[324] because of their work to defend people who were in jail because of their political dissidence.

233.          The IACHR received information on acts of harassment and repudiation against the women who were members of The Ladies in White group during the 4 kilometer peaceful march they organized on March 15, 2008 to demand the release of the 55 imprisoned political opponents who are part of the “Black Spring 2003”. During the march they were assaulted several times, including with insults such as “terrorists”, “prostitutes”, “murderers”, “mercenaries”, and “bastard bitches”.[325] According to the Observatory for the Protection of Human Rights Defenders, Ms. Pollán Toledo, wife of the independent journalist Héctor Maseda Gutiérrez who was sentenced for 20 years in jail, indicated that the attackers belonged to military mobs known as “cheerleaders” or others under their control[326]. On April 21, 2008, ten Ladies in White were forcibly removed by State Security and the National Revolutionary Police after a peaceful protest held near the “José Marti” Plaza de la Revolución in Havana.[327] The violence suffered by those women, including Ms. Dolia Leal Francisco, co-founder of the movement, resulted in physical contusions, and long-term trauma and pain.[328] The Commission has also received information indicating that the Ladies in White group has been assaulted on numerous occasions and its members have been insulted, attacked and have even received death threats.

234.          In addition, the IACHR expresses its concern for the difficult situation faced by organizations in Cuba to inform the international community about the situation of human rights in Cuba because of potential reprisals, among other reasons. Moreover, it is difficult for the IACHR to send messages to people living in Cuba because of reports complaining of being harassed by government authorities for receiving communications from this body.

235.          Likewise, the IACHR is particularly concerned that defenders may be the target of a campaign to discredit them in response to their work in defending and promoting human rights in Cuba.[329] In that regard, the IACHR reiterates the need to adopt necessary measures to prevent the various State bodies from being used to harass people who work in the defense and promotion of human rights, especially those established in the “Report on the Situation of Human Rights Defenders in the Americas.”

 7.         The Situation of Human Rights of Women

236.          With the adoption of the American Declaration, the States recognized that human rights are based upon the attributes of human personality[330] and “all persons are equal before the law and have the rights and duties [...] without distinction as to [...] sex”.[331] With regard to the right to be equal before the law, the IACHR has stated that it “requires national legislation to provide protections without discrimination.”[332] Earlier, the IACHR had said that the guarantees of equality before the law and non-discrimination “reflect essential bases of the very concept of human rights.”[333] As has already been ruled by the Inter-American Court, these principles come “directly from the natural unit of human gender and [they are] inseparable from essential human dignity.”[334]

237.          In the area of women’s rights, it is important to note that Cuba has a legal framework to protect the human rights of women.[335] The Cuban Constitution explicitly provides for equal economic, political, cultural, social and family rights for men and women.[336] Nevertheless, the Committee for the Elimination of Discrimination against Women has expressed its concern that no explicit definition of discrimination against women, in accordance with Article 1 of the CEDAW, is contained in Cuban legislation.[337]

238.          The IACHR notes with satisfaction the increased representation of women in politics at all levels, including in government bodies at the municipal, provincial and national levels, as well as the high percentage of women in parliament[338]. It also commends the high percentage of women who work and pursue careers in the scientific and technical fields.[339] Notwithstanding this, the Commission notes the lack of data, and trends over time, regarding women’s participation in other occupational categories and sectors of the labor market, and the vertical and horizontal labor force segregation and wage levels disaggregated by sex, in accordance to what was expressed by CEDAW Committee.[340] Also, the IACHR has received information that indicates that despite the State’s efforts to eliminate gender-based stereotypes, including through the revision of text books, curricula, and teaching methods, there still exist patriarchal attitudes and deep-rooted stereotypes regarding the roles and responsibilities of women and men in the family.[341]

 8.         The Situation of Human Rights of Children

239.          Regarding the situation of children in Cuba, the Commission observes that certain achievements have been made related to access to education and, in some aspects, health care. As an example, 97% of children complete elementary education and neonatal and infant mortality indicators are at around 4 and 5 percent, respectively.[342]

240.          In connection with the protection of the rights of children in conflict with the law, the IACHR is concerned about the existence of standards applicable to children in conflict with the law because internal law establishes minimum age for criminal liability at 16 years old,[343] which means that a person as young as 16 is subject to the standards provided by Cuban criminal law. Therefore, in the absence of a provision to the contrary, sentences of life imprisonment are also applicable, pursuant to Sections 30.1 and 30.2.[344] This makes Cuba one of the few countries in the Americas[345] that continues to apply this sort of penalty in violation of international standards for the human rights of minors.

241.          In addition, the Commission is concerned that children continue to be victims of various forms of violence in Cuba, such as the practice of corporal punishment in the home, at school and in institutions entrusted with the care and protection of children under the age of 18. In this regard, the Commission has positively observed that corporal punishment is forbidden for persons who are incarcerated.[346] Nevertheless, the Commission is concerned that Section 86 of the Family Code[347] allows the use of violence, albeit slight, as a moderate method for disciplining children. The IACHR urges the State to adopt legislative and other measures it deems appropriate to prohibit and eradicate corporal punishment as a disciplinary method for minors in the home, at school or in institutions entrusted with the care and protection of persons under the age of 18.

242.          Finally, the IACHR reminds the State that, pursuant to Article VII of the American Declaration of the Rights and Duties of Man, all measures adopted on behalf of children assures the prevailing superior interest of children, respect for their dignity, the principle of non-discrimination of any kind, the right of children to participate, and respect for their opinions.

 IV.        CONCLUSIONS

243.          In light of the above remarks, the Commission again states that restrictions on political rights, on freedom of expression, and on the dissemination of ideas, the failure to hold elections, and the absence of an independent judiciary in Cuba combine to create a permanent panorama of breached basic rights for the Cuban citizenry, and it urges the State to undertake the necessary reforms in accordance with its international human rights obligations.

244.          The Commission urges the State of Cuba to adapt its procedures to the 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 means of defense.

245.          The Commission also reiterates to the State of Cuba its recommendation of ordering the immediate and unconditional release of the victims in Case 12.476, and of voiding their convictions on the grounds that they were based on laws that illegitimately restrict human rights.

246.          Finally, the Commission urges the Cuban State to take the steps necessary to prevent and eradicate the different forms of harassment used against individuals who exercise the right of association for humanitarian and trade union purposes and against those persons who dedicate their efforts to the defense and promotion of human rights.
 

DISSENTING VOTE

In line with the position that I have kept in regards to the Republic of Cuba, I have expressed that the Commission lacks material and territorial competence with respect to the Republic of Cuba, by virtue of its exclusion from the Organization of American States. Hence, I do not share the decision of most of my colleagues on the admission and processing of cases and the issuing of reports and other activities derived from the application of the Convention.  Luz Patricia Mejía Guerrero, IACHR President.