ANNUAL REPORT 2009

(Continuation)

CHAPTER IV

HUMAN RIGHTS DEVELOPMENTS IN THE REGION

CUBA

I.         SITUATION OF HUMAN RIGHTS IN CUBA

206.          According to the criteria drawn up by the IACHR in 1997 to identify the States whose human rights practices demand special attention, the situation of human rights in Cuba is reflected in the first and fifth criteria, in that the political rights contained in the American Declaration are not observed and structural situations that seriously and severely affect the ability to enjoy and exercise the fundamental rights contained in the American Declaration persist.

207.          Having observed and evaluated the human rights situation in the State of Cuba during 2009, the IACHR has decided to include in this chapter of its annual report considerations on structural situations that gravely affect the full observance and enjoyment of human rights, especially in relation to political rights, guarantees of due process of law and independence of the Judiciary, deprivation of liberty of political dissidents, restrictions on the right to freedom of residence and travel, restrictions on the freedom of expression, human rights defenders, and the freedom to form and join trade unions. In addition, a consideration is included on the economic and commercial sanctions imposed on the Government of Cuba, reiterating that the embargo should end[301] in view of the impact of such sanctions on the human rights of the Cuban population. Nonetheless, it also reiterates that the economic embargo does not exempt the State from complying with its international obligations nor does it excuse the violations of the American Declaration described in this report.

208.          In order to draw up this report, the Commission has obtained information from international agencies, civil society and the Cuban government through their official websites. It also obtained information at the public hearings held during its 137^th regular session, which addressed torture, extrajudicial executions, and violations of the right to freedom of expression[302], the right to freedom of movement[303], and the situation of independent union leaders.[304]

209.          On November 27, 2009, the Commission sent this report to the State of Cuba and asked for its observations. The State did not respond.

210.          The Commission considers it important to take into account in this report, Resolution AG/RES. 2438 (XXXIX-O/09)[305] of the OAS General Assembly of June 3, 2009 annulling the decision taken in 1962 to exclude Cuba from actively participating in the OAS (see paragraphs 9 and 10 infra). Said resolution opens up new possibilities of holding a dialogue aimed at reincorporating the country into the OAS.

211.          The Commission observes that there is little information available on Cuba’s human rights situation, due to the government’s policy of restricting the flow of information. This hinders the Commission’s work is not consistent with the obligations of the State of Cuba in the international system.

II         COMPETENCY OF THE IACHR TO OBSERVE AND EVALUATE THE SITUATION OF HUMAN RIGHTS IN CUBA

212.          The Competency of the Inter-American Commission on Human Rights to observe the human rights situation of the member States derives from the terms of the OAS Charter, its Statute and its Rules of Procedure. Pursuant to the Charter, all the member States undertake to respect the fundamental rights of individuals who, in the case of States that are not party to the Convention, are those stipulated in the American Declaration of the Rights and Duties of Man (hereinafter the “American Declaration”), which is a source of international obligations[306]. The Statute entrusts the Commission to pay special attention to the task of observing the human rights recognized in Articles I (right to life, liberty and personal security), 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, in exercising its jurisdiction over countries that are not party to the American Convention[307].

213.          On January 31, 1962 the Government of Cuba was excluded from participating in the Inter-American system through Resolution VI adopted at the Eighth Meeting of Consultation of Ministers of Foreign Affairs held in Punta del Este (Uruguay) from January 22 to 31, 1962[308]. Thenceforth, the Commission’s position was to recognize the Cuban State as “legally responsible before the Inter-American Commission in matters concerning human rights” since “it is party to international instruments initially established within the scope of the American hemisphere with the aim of protecting human rights” and because Resolution VI of the Eighth Meeting of Consultation “excluded the Cuban government, not the Cuban State, from participation in the inter-American system.”[309]. In this regard the IACHR stated:

[...] has also considered that the purpose of the Organization of American States in excluding Cuba from the inter-American system was not 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[310].

214.          Given the foregoing, in exercising its competence, the IACHR has observed and evaluated the human rights situation in Cuba in special reports[311]; in Chapter IV of the Annual Report[312] and through the case system[313].  On several occasions the IACHR has asked the State of Cuba to take precautionary measures to safeguard the lives and physical safety of Cuban citizens[314].

215.          The Resolution that excluded the government of Cuba from participation in the OAS was rendered null and void on June 3, 2009 by the General Assembly of the Organization of American States during the VIII Meeting of Consultation of Ministers of Foreign Affairs held in Honduras. The Resolution, approved by acclamation, states that[315]:

Resolution VI, adopted on January 31, 1962, at the Eighth Meeting of Consultation of Ministers of Foreign Affairs, which excluded the Government of Cuba from its participation in the Inter-American system, hereby ceases to have effect in the Organization of American States

216.          Further “the participation of the Republic of Cuba in the OAS will be the result of a process of dialogue initiated at the request of the Government of Cuba, and in accordance with the practices, purposes, and principles of the OAS.”

217.          In response to that decision, on June 8, 2009, the government of Cuba stated that the Resolution issued by the General Assembly “seeks to repair a historic injustice and vindicates the people of Cuba and the peoples of America”[316].

218.          In this context, the Commission reiterates its commitment to work with the Cuban State and calls for a dialogue to help improve and strengthen human rights in that country. In particular it urges the Cuban State to respond to the IACHR’s requirements in order to follow up the issues regarding the situation of the human rights of people in Cuba[317].

III.      STRUCTURAL SITUATIONS THAT SERIOUSLY AFFECT THE FULL ENJOYMENT AND EXERCISE OF HUMAN RIGHTS IN CUBA

219.          For decades, the restrictions to political rights, freedom of expression and dissemination of thought have created a permanent and systematic situation whereby the human rights of Cuba’s inhabitants are infringed.  The lack of independence of the judiciary has further aggravated this situation.

a.         Political Rights

220.          Political rights are human rights of fundamental importance and are intimately associated with an array of other rights that make the democratic possible. The existence of free elections; independent, effective branches of public power and full respect for freedom of expression, among others, are basic characteristics of democracy that cannot be evaluated in isolation. From that perspective, full assurance of human rights is not possible without effective and unrestricted recognition of the right of individuals to form and participate in political groups. The right to vote is one of the sine qua non elements for the existence of democracy and one of the ways by which citizens freely express their will and exercise the right to participate in government. This right implies that citizens “may, on an equal footing, directly decide and freely elect those who will represent them in decisions on public affairs.” [318] The Court also held that participation in government through the exercise of the right to be elected, presupposes that citizens may put themselves forward as candidates on an equal basis and hold elected positions in public office if they receive the necessary amount of votes to do so. In that connection, the Court noted that the American Convention prohibits suspension of this right even in a state of emergency[319].

221.          The Commission has determined that the right to freedom of expression and information is one of the main mechanisms whereby society can exercise democratic control of the people with responsibility for matters of public interest[320]. The link between freedom of expression and democracy is so important that, as explained by the Inter-American Commission, the very objective of Article 13 of the American Convention is to strengthen the workings of plural and deliberative democratic systems through the protection and promotion of the free circulation of information, ideas and expressions of every kind[321]. Full recognition of the freedom of expression is a fundamental guarantee for ensuring the rule of law and democratic institutions[322]. The link between democracy and the freedom of expression at this point in history is self evident: it is not possible to sustain the existence of that form of government without genuine and full respect for that right[323].

222.          The State has affirmed that “in Cuba the democratic system is sustained by the principle of ‘government of the people, by the people and for the people,’ added that ‘the Cuban people through its political and civil institutions, and within the framework of its laws, participates in the active exercise and control of the government’[324]. It also states that the restrictions imposed by the law to the exercise of some political rights in Cuba, have been the absolute minimum to guarantee protection of the right to free determination, peace and the life by all the people, in response to growing Anti-Cuban aggression on the part of the Empire[325].

223.          With regard to the freedom of opinion, of expression and of the press, the Cuban government has expressed that Article 53 of its Constitution states that all citizens have this right and that the material conditions for exercising this right are present due to a high educational and cultural level and because the press, radio, television, cinema and other mass media belong to society. It affirms that there is ample discussion in Cuba about the broadest issues of political, economic, social and cultural rights, both of the nation and of the entire planet[326]. As regards the restrictions to the freedom of opinion and expression, it pointed out that these rights are restricted in the case of just a few people, justifying such restrictions in the following terms:

The Cuban government only restricts the “freedom” of opinion and expression of the few people who sell their services as mercenaries of the politics of hostility, aggressions and genocidal blockade by the government of the United States against Cuba. In enforcing such restrictions, Cuba acts by virtue not only of its national legislation, but also by virtue of numerous international human rights instruments and successive resolutions of the UN General Assembly that have demanded respect for the free determination of peoples and an end to the economic, commercial and financial blockade enforced by the US government against Cuba[327].

224.          The Commission considers that one of the main criteria for drafting this report is that Cuba fails to hold free elections in line with internationally accepted standards, which violate the right to political participation contained in Article XX of the American Declaration of the Rights and Duties of Man which provides that

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

225.          Article 3 of the Democratic Charter signed in Lima, Peru, on September 11, 2001, defines the elements comprising the government’s democratic system in the following terms:

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.

226.          The Declaration and the Democratic Charter reflect a broad concept of representative democracy which, as such, is based on the sovereignty of the people in which the functions through which power is exercised are performed by people chosen in free elections that represent the people’s will.  In the Commission’s opinion, those elements do not exist in the Cuban elections, which are characterized precisely by a lack of plurality and independence and the absence of a framework of free access to different sources of information.  In light of the international standards cited, the Commission reiterates that the lack of free and fair elections, based on secret balloting and universal suffrage as the expression of the people’s sovereignty[328], infringes the Cuban people’s right to political participation. 

b.         Political Repression

227.          During 2009, the IACHR received information indicating that the Cuban government has been using tactics consisting of political repression based on systematic arrests lasting several hours or several days, threats and other forms of harassment against opposition activists[329].  Political repression in Cuba has been characterized by the systematic effort to eliminate any possibility of political dissidence or of expressions and actions aimed at fostering the exercise of fundamental human rights. This situation is aggravated in a State that does not allow the institutionalization of the political opposition.

228.          On July 9, Darsi Ferrer, Director of the “Juan Bruno Zayas” Center for Health and Human Rights, and his wife Yusnaymi Jorge Soca, were held in their home for twelve hours because they were planning to take part in a peaceful march in Havana. According to the information received, a few hours before the demonstration was to be held, several activists were arrested. Darsi Ferrer is a medical doctor by training but his work is to report on Cuba’s present health system and the situation of political prisoners. Subsequently, according to information received, on July 21, 2009, Darsi Ferrer was arrested and taken to the Valle Grande jail in western Havana, accused of “illegally’ (according to the authorities) obtaining building material to renovate his house, which is in a poor state of repair[330].  According to activist Elizardo Sánchez Santacruz, who chairs the Cuban Human Rights and National Reconciliation Commission, this is “an imprisonment for political reasons, as Ferrer is a known dissident and had been planning a series of activities”[331].

229.          On July 11, 2009, the political police arrested independent journalist Pérez Nápoles for organizing a march as a tribute to the victims of the retaliatory action by coastguards[332]. On July 15, officers of the National Revolutionary Police took independent journalist David Águila Montero to the Department of Internal Security. During the interrogation his USB, password and several copies of newspapers, such as the US daily newspaper New Herald and the magazine Disidente were confiscated.

230.          The IACHR was informed that on September 7, 2009, former political prisoner Jorge Luis García Antúnez was arbitrarily detailed from the afternoon on Monday September 7, 2009 to the afternoon of Wednesday, September 9, 2009, along with activist Frank Reyes López[333].  According to its report, both of them were on their way to Havana by bus when they were arbitrarily arrested, searched and kidnapped at the Police Unit of the Aguada bus terminal. They were then taken to the Santa Clara Provincial Police Operations Unit. During the 48 hours they spent there, they were apparently mistreated, intimidated and threatened with reprisals by the authorities and not given any food. Antúnez apparently suffered a hypoglycemic crisis and asthma due to the reprisals against him. When the activists were released, they were warned that they might be subject to further reprisals by the authorities in the future.

231.          Belinda Salas Tápanes, president of the Latin American Federation of Rural Women-Cuba (FLAMUR), was held under arrest for more than three hours by political police officers on September 23, 2009 after her home was searched[334]. Belinda Salas Tápanes was more than 30 weeks pregnant at the time of her arrest. According to the information, the activist had apparently received a US visa more than a year ago because of political persecution against her, but the government refuses to allow her to leave the country, “without concrete arguments” said her husband Lázaro Alonso Román, a former political prisoner.

232.          On October 2, 2009, Cuban activist Iris Tamara Pérez Aguilera, who chairs the Rosa Parks Feminist Movement for Civil Rights was arrested by State agents when she tried to deliver a letter to Radio Placetas asking for help for her brother Mario Alberto Pérez Aguilera who, according to the information received, is fighting for his life at the Guamajal jail[335].  The letter, signed by Iris Tamara Pérez, reads as follows: “Mario Alberto Pérez Aguilera is fighting for his life at the Guamajal Prison hospital as a result of a hunger strike he went on to protest against endless acts of maltreatment and cruelty to him by the prison authorities, obviously in retaliation for his ideas and actions against the ideology of the government prevailing in Cuba (...) In the hope that you will take this case into consideration so that justice may be enforced, since otherwise you would be aiding and abetting the crime being committed against him"[336].

233.          The IACHR has also received information about how the Cuban Government uses the concept of “peligrosidad” (“dangerousness”) as well as the “special proclivity of a person to commit crimes” contained in the Criminal Code, as tools for political persecution and social repression.[337] The ambiguity of both terms is a grave matter as it criminalizes any ideological outlook that assails the regime (see paras. 53 to 62 of this report).

-          Torture

234.          In a hearing before the IACHR held during the 137^th regular period of sessions, the IACHR received very serious testimony with respect to allegations of torture of political prisoners and common prisoners.[338] The Consejo de Relatores de Derechos Humanos de Cuba, based in the city of Havana, reported from January to September 2009 the deaths of 50 prisoners in Cuban prisons, including six at the Ariza prison, six at the provincial prison of Las Tunas, and six at the provincial prison of Holguín as the result of beatings, mistreatment, denial of medical care, and inducing suicide through psychological torture. During 2008, the Consejo de Relatores reported 71 deaths in 21 prisons due to such practices. According to the Consejo, in Cuba 536 prisons and correctional or detention centers are on record. 

235.          In addition, the IACHR received the testimony of former political prison Jordi García Fournier of the Movimiento Cubano de Jóvenes por la Democracia, who in September 2009 reported on the methods of punishment used at the provincial prison of Guantánamo such as “Shakira” and “balancín.” Following is a transcription of part of his testimony[339]:

“While on a hunger strike in the area of the dungeons I verified that this is the zone most used by the members of the military for all such forms of physical punishment, beatings. At the provincial prison of Guantánamo any protest that is led by a political prisoner or common prisoner, they are taken to this zone, to those dungeons, three cells one next to the other, and are ferociously, brutally beaten by the soldiers working in the prison. One very common method called Shakira (making reference to the Colombian singer) is used by the soldiers at this prison. Two handcuffs with a long chain are placed around the waist, the hands are alongside the hips, but a chain is placed at the waist and tied to these two handcuffs, which they squeeze so much that it is practically unbearable, it cuts off one’s respiration, so you can’t breathe; it is truly unbearable. If the protest continues then the soldiers move on to a variation of this Shakira:  they handcuff the hands behind the back and then take another handcuff, placing it on the feet, and these are attached by means of this chain, the hands and feet are joined behind the back; they call this the Balance Beam (Balancín) because the person ends up with the abdominal cavity against the floor, which is the only part of the body that contacts the floor; the hands and feet are pressed against the back by this truly unbearable chain.  I saw them apply this method many times to the prisoners, and I fought this.

“Imagine, the prisoners on occasion have had to spend several days with these handcuffs on, having to defecate and urinate on their own body, because this position affords them no other option.  I learned of the case of Yordis Fuentes Pérez, a member of the Movimiento Cubano de Jóvenes por la Democracia and originally from Baracoa, who spent three days with this method imposed, without eating and without being able to move anything precisely due to a protest against the injustices, and because he shouted anti-government slogans and this method was applied to him, they forced him to stay like that, without ingesting any food. At this time, this young man is in punishment cells. In this dungeon area, when they use this type of method, they bring together the musical group in the prison and they have it play music outside the dungeon area, in the corridor, to play music there, so the shouts aren’t heard, or any of what is happening in this zone, to which there is little access.”

“When I was taken as a punishment to that area, they had the group play so as not to hear the shouts of the persons who are being punished there with this method. The soldiers walk around with the Shakira handcuffs and chains in hand to intimidate the persons there….”

236.          According to the information provided in the hearing, the allegations of torture were previously reported to the Cuban authorities.[340]  In effect, in late 2008, political prisoner Ernesto Durán Rodríguez, held at that same provincial prison of Guantánamo, at pavilion 21 cubicle 1, sent a letter to General Raúl Castro in which he describes the use of these methods of torture by the members of the military at that prison, and also attached a list with the names of persons tortured in 2008 using the Shakira method.

2.         Guarantees for the Due Legal Process and Independence of the Judiciary

237.          During 2009 the Commission continued to receive worrying information about the structural lack of independence and impartiality of the courts; and the absence of judicial guarantees and due process in trying people sentenced to death, as well as people considered to be political-ideological dissidents, a situation that is all the more serious as it involves the use of summary trials.

238.          Jurisprudence in the Inter-American System has consistently sustained that all the bodies that exercise functions of a materially jurisdictional nature have a duty to adopt fair decisions based on full respect for the guarantee of due process. The American Declaration stipulates that everyone has the right to a fair trial[341], the right of protection from arbitrary arrest[342] and the right to due process of law[343]. These rights form part of what is known as the body of guarantees of due legal process, the minimum guarantees applying to any whom being as far as any kind of judicial process is concerned.

239.          The American Declaration also states that every human being has the right to liberty[344] and no person may be deprived of his liberty except in the cases and according to the procedures established by pre-existing law[345]. Pursuant to the American Declaration, every individual who has been deprived of his liberty has the right to have the legality of his detention ascertained without delay by a court, and the right to be tried without undue delay or, or otherwise, to be released[346]. Additionally, 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[347].

240.          The right to be tried by a competent, independent and impartial court set up pursuant to the law, has been interpreted by the Inter-American Court and the Inter-American Commission as the assurance of certain conditions and standards that must be met by the courts in charge of judging the substantiation of any criminal accusation or the determination of the civil, fiscal, labor or other rights or obligations of persons[348].

241.          This right to a fair trial is supported by the fundamental concepts of independence and impartiality of justice which, like the principles of criminal law recognized by international law – presumption of innocence, the non-bis-in-idem principle and the nullum crimen sine lege and nulla poena sine lege principles, as well as the precept that no person shall be convicted of a crime in the absence of individual criminal responsibility – are fully considered general principles of international law that are essential for the proper administration of justice and the protection of fundamental human rights[349].  The requisite of independence, in turn, requires that the courts be autonomous from other branches of government, be free of influence, threat or interference from any source or for any reason, and have other characteristics necessary to guarantee appropriate and independent compliance [350] of judicial functions, including the stability in office and proper professional training[351]. The impartiality of the courts[352] must be evaluated from a subjective and objective point of view to guarantee that there is no real bias on the part of the judge or the court, and that there are sufficient assurances to avoid any legitimate doubt in that respect.  These requisites, in turn, require that the judge or the court have no real bias in a particular case, and that the judge or the court not be reasonably perceived as inclined towards such a bias[353].

242.          As regards the guarantees of independence and impartiality, note the provisions of Article 121 of the Cuban Constitution which state that

The courts constitute a system of state bodies, established with functional independence from all other systems, and answer only to the National Assembly of People’s Power and the Council of State.

243.          The Commission noted 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. In the opinion of the Commission, this dependence vis-à-vis the Executive does not make for an independent Judiciary capable of guaranteeing the enjoyment of human rights.

244.          According to information received in 2009, the Cuban courts have persisted in their use of summary trials, such as the trial and sentencing in 2009 of Alberto Santiago Du Bouchet Hernández, director of the independent Havana-based press agency Habana Press, for reportedly documenting social issues[354].  According to the information received, Du Bouchet Hernández was arrested on April 18, 2009 in retaliation for his work, although the accusations against him were not made public. He underwent a summary trial and was sentenced to three years in prison on May 12, 2009. The information indicates that the journalist had no defense attorney. The judgment was appealed against and the outcome is still pending.

245.          The IACHR also received information indicating that Agustín Cervantes, member of the Christian Liberation Movement and coordinator of the Varela Project in Santiago de Cuba, a project that seeks to promote a referendum on civil liberties, was sentenced to two years in prison on September 29, 2009, in a summary trial, for apparently committing the crime of causing injury[355]. According to the information received, Cervantes was arrested on Monday, September 28, 2009, after he was provoked by a man who went to his house to insult him and attempted to stab him with a knife.

246.          The Commission considers extremely serious and condemns the repeated practice of summary trials in Cuba without heed for the guarantees of due process, including the minimum guarantees necessary to allow the accused to exercise his/her right to a proper legal defense.

247.          On repeated occasions, the Commission has recommended that the State of Cuba adopt the necessary measures to adapt its laws, procedures and practices to international human rights legislation. In particular, the Commission has recommended that Cuba’s criminal legislation be amended in order to ensure the right to justice and the right to a fair trial, and to initiate a process to reform its Constitution to ensure the independence of the judiciary.

248.          In Report 67/06[356] on Case 12,476 (Oscar Elías Biscet et al.) on the crackdown on political dissidents arrested and subjected to summary trial in what is known as “Black Spring” 2003, through the enforcement of Article 91[357] of the Cuban Criminal Code as well as Law 88 on the Protection of the National Independence and the Economy of Cuba, the IACHR recommended that the State of Cuba:

2. Adopt the necessary measures to adapt its laws, procedures and practices to international human rights legislation. In particular, the Commission recommends that the State of Cuba repeal Law No. 88 and Article 91 of the Criminal Code as well as to initiate a process to reform its Constitution in order to ensure the independence of the judiciary and the right to participate in government.

249.          Moreover, in the Report 68/06 on Case 12.477[358] (Lorenzo Enrique Copello Castillo et al.), in relation to three people who were shot after a summary trial, in breach of the right to defense, impartiality and judicial independence, the IACHR recommended that the State of Cuba:

1. Take the necessary steps to adapt its laws, procedures and practices to international human rights legislation. In particular, the Commission has recommended that Cuba’s criminal legislation be amended in order to ensure the right to justice and the right to a fair trial, and to initiate a process to reform its Constitution to ensure the independence of the judiciary.

250.          Articles 479 and 480 of the Cuban Law of Criminal Procedure provides for the possibility of holding a summary trial. That same law also states that in the case of a judgment resulting from a summary trial, if deemed necessary by the Court, it may reduce the periods for processing prior proceedings, the oral hearings and the appeal.

Summary Trial

Article 479: If called for by exceptional circumstances, the Prosecutor General of the Republic may call upon the President of the People’s Supreme Court to decide if crimes that come under the competency of any of the courts of justice may be tried through a summary proceeding, except for those that come under the competency of the People’s Municipal Courts.

Article 480: In the summary trial, if deemed necessary by the competent court, the periods for processing prior proceedings, the oral hearings and appeals may be reduced.

251.          In that respect, the Commission notes that the decision to apply an exceptional procedure shall be determined by the people who impart justice in the specific case; likewise the judge may decide on the terms to be set for all proceedings in the trial, including prior proceedings, the proceedings corresponding to the oral trial and the terms of the appeals[359]”.

252.          The Commission has observed that through summary trials in Cuba political dissidents and people who have attempted to flee the island have been tried, and some of them even sentenced to death as a result of such trials that contravene the minimum rules of due process[360].

-          Death Penalty

253.          Within this context, where there is a lack of independence, arbitrary action and summary trials, another particular concern of the IACHR is that the death penalty is included as a sanction for a number of crimes. In effect, the Cuban Criminal Code provides for this punishment for crimes against the security of the State; peace and international law; public health; life and physical safety; the normal practice of sexual relations; the normal course of childhood and youth and against equity rights. In the section on crimes against the security of the State, the death penalty is the maximum punishment for the following crimes: Acts against the Independence and Territorial Integrity of the State; Promoting Armed Action against the State; Provision of Armed Services the Homeland; Acts of Aid to the Enemy; Espionage; Rebellion[361]; Sedition; Usurpation of Political or Military Control; Sabotage; Terrorism; Hostile Acts against a Foreign State; Genocide; Piracy; Association with a Group of Mercenaries, Apartheid[362]; and other acts against the security of the State. Moreover, the death penalty is applicable for the following crimes: Production, Sale, Demand, Traffic, Distribution and Illegal Possession of Drugs, Psychotropic Substances and Narcotic Drugs and other substances with similar effects[363]; Murder[364]; Rape[365]; Violent Pederasty[366]; Corruption of Minors[367]; Robbery with Violence or Intimidation of People[368].

254.          The Commission considers that the application of capital punishment requires the existence of an independent judiciary where the judges exercise a high level of scrutiny and where guarantees of due process are observed. In that regard the Inter-American Court has sustained that:

[C]apital punishment is not per se incompatible with or prohibited by the American Convention.  However, the Convention has set a number of strict limitations to the imposition of capital punishment[369]. First, the imposition of the death penalty must be limited to the most serious common crimes not related to political offenses .[370] Second, the sentence must be individualized in conformity with the characteristics of the crime, as well as the participation and degree of culpability of the accused[371].  Finally, the imposition of this sanction is subject to certain procedural guarantees, and compliance with them must be strictly observed and reviewed [372].

255.          According to information obtained by the IACHR, the last time the death penalty was applied in Cuba was in 2003, when Lorenzo Enrique Copello Castillo, Bárbaro Leodán Sevilla García and Jorge Luis Martínez Isaac were executed[373]. However, summary trials will continue to result in application of the death sentence. As stated in Chapter IV of the Annual Report 2008, the IACHR appreciates the decision of the Council of State adopted on April 28, 2008, to commute the death penalty to anyone condemned to such a severe and irreparable punishment, in favor of life imprisonment or 30 years in prison. The IACHR hopes that this commutation will be extended to cover anyone sentenced to death, including anyone condemned for committing of what are presumed to be terrorist acts.

256.          The IACHR reiterates its observation that maintaining the death penalty as punishment for a significant number of crimes defined in broad or vague terms[374], along with criminal procedures without sufficient guarantees of due process, when carried out in the form of summary trials, without a defense that can be trusted and with juries of doubtful independence and impartiality, violates the international instruments and jurisprudence that have been established in order to safeguard human rights. This may lead to the application of disproportionate punishments and an enormous scope of discretionary action likely to eliminate any possibility of the individual defending himself against the authorities[375]. For example, Article 91 of the Criminal Code provides for sentences of 10 to 20 years in prison or the death penalty for “whoever, in the interest of a foreign State, commits an act intended to cause damage to the independence of the Cuban State or the integrity of its territory.”

-          Dangerous State

257.          Likewise, Article 72 of the Criminal Code defines dangerousness as “a special inclination on the part of a person to commit crimes, as demonstrated by behavior that is clearly contrary to the standards of socialist morality.” Article 73.1 defines what is meant by “dangerous state”: “dangerous state is present when an individual displays some of the following signs of dangerousness:” a) habitual drunkenness and dipsomania; b) drug addiction; c) antisocial behavior. Article 73.2 provides that “an individual who habitually breaks the rules of social coexistence by acts of violence, or by other provocative acts, violates the rights of others or by his general behavior breaks the rules of coexistence or disrupts the order of the community or lives, as a social parasite, off the work of others or exploits or practices socially reprehensible vices, is considered to be in a dangerous state on account of his or her antisocial behavior”.

258.          For its part, Article 75.1 of the Criminal Code states that "an individual who, without being in any of the dangerous states listed in Article 73, by his links or relationships with persons potentially dangerous to society, other persons and the social, economic and political order of the socialist State, could become prone to crime, will be warned by the competent police authority with a view to preventing him from carrying out socially dangerous or criminal activities.” The IACHR has referred in previous reports to the way in which the Government of Cuba uses the legal concepts of “peligrosidad” (“dangerousness”) as well as “special proclivity of a person to commit crimes” to detain opponents of the regime.[376]

259.          If a person engages in one of the types of dangerousness cited above, he or she is subject to the so-called “security measures” (medidas de seguridad) which may be post- or pre-delictive (post o predelictivas).  Article 78 provides that one found to be in a dangerous state may be subject to pre-delictive security measures, which may be therapeutic, re-educational, or surveillance measures imposed by the organs of the National Revolutionary Police. One of the therapeutic measures, according to Article 79, is to be admitted to a psychiatric, or detoxification center.[377] Re-educational measures are applied to antisocial individuals and consist of being admitted to a specialized establishment for work or study, and being transferred to a work collective for monitoring and guidance. Such measures may have a term of one to four years.

260.          These provisions of the Criminal Code of Cuba are supplemented by Decree No. 128, of 1991.  That decree establishes that the declaration of pre-delictive condition must be decided summarily. In effect, according to said decree, the National Revolutionary Police opens the case with the report of the agent involved, the testimony of neighbors accrediting the conduct of the “dangerous” individual, and it submits it to the municipal prosecutor, who decides whether to present it to the People’s Municipal Court (Tribunal Municipal Popular), to take stock of the degree of dangerousness within two working days after the date it receives it. Within this time frame, the Court will decide whether to take any other investigative measures, which it would perform within five working days. If the court considers the file complete, it will set a date for the hearing at which the parties will appear. Twenty-four hours after the hearing is held, the Municipal Court shall hand down a judgment.

261.          The Inter-American Commission on Human Rights considers that the criminal law should punish crimes or their frustrated attempts, but never attitudes or presumptions of criminal conduct.[378] Dangerousness (peligrosidad) is a subjective concept depending on who is judging it, and its vagueness constitutes a factor of juridical insecurity for the population, as it creates the conditions for the authorities to commit arbitrary acts. The Commission also considers it extremely grave that these provisions – in themselves incompatible with the principles established in the American Declaration, are applied by a summary procedure to persons who have not committed any crime, but who according to the Cuban authorities are considered dangerous to society, and, therefore, deserving of severe security measures entailing deprivation of liberty.[379] In these cases, the State intervenes in the life of the citizens without limitations to maintain la paz social (social peace) and unhesitatingly violates the right to individual liberty.

262.          On applying Article 72 ff. of the Criminal Code the Cuban authorities are also violating the principle of equality before the law enshrined in Article II of the American Declaration of the Rights and Duties of Man, insofar as the State punishes or considers dangerous anyone who contradicts "the norms of socialist morality."[380] 

263.          By way of illustration as to the application of sanctions to conduct defined in ambiguously worded criminal statutes, the IACHR received information on the situation of Cuban citizen Juan Carlos González Marcos “Pánfilo”[381], who, drunk, interrupted an interview being filmed on reggaeton music in one of the streets of Havana and shouted into the camera “We want food” ("¡Queremos Jama!", using a popular term for food), "There is a lack of food, there is great hunger here. Film what I’m saying, it’s no lie.  Great hunger." As a result of the taping, Juan Carlos González Marcos was detained on August 4, 2009 on charges of “pre-delictive social dangerousness” and was sentenced to two years in prison. According to the information received, the main argument of the authorities was that he had been unemployed for ten years.[382]

264.          The IACHR also received information about the recent use of the legal concept of “pre-delictive dangerousness” (“peligrosidad predelictiva”) to convict and sentence six young Cuban homosexuals to prison.[383] According to the information received, the facts were reported by the Fundación LGBT “Reinaldo Arenas” of Cuba. On November 4, 2009, the provincial court of Boyeros convicted René Castell Median along with his partner Damián Arencibia Touriño for working as tailors without government authorization. After being held one month at a police station without their family members being informed of the trial, after the trial they were both sentenced to three years deprivation of liberty. In addition, Eliseo Montalvo, 25 years old, was detained by the Cuban police after three police warnings for “interacting with foreigners” and not working for the Cuban State or having stable work, and has been sentenced to two years in prison. According to the information received, three other homosexuals were also convicted and sentenced to two years of prison, applying the same statute. The Commission has been informed that the law on “Pre-delictive Dangerousness” applied to young homosexuals is often used by the Cuban police, who arrest those youths whose lifestyle strays from the “revolutionary ideal” and who according to them could commit some hypothetical crime in the future due to that lifestyle. The youths are forced to sign a warning, and are threatened with being sent to prison if they don’t change and get on track to be a revolutionary patriot.[384]

265.          The Commission reiterates that the lack of independent administration of justice in Cuba, together with the absence of guarantees of due process, as well as the use of summary trials and the ambiguity and/or extent of some of the offenses defined as crimes under the country’s legislation, affect people’s fundamental rights.

266.          The Commission calls upon the Government of Cuba to adapt its court procedures to the international standards applicable to due process, so that the people who appear in court to determine their rights and responsibilities have the minimum guarantees necessary to defend themselves. The Commission considers that the existing legal framework does not fulfill Cuba’s international obligations on this matter. The full force and effect of the judicial guarantees contained in the American Declaration are dependent on the existence of an independent, autonomous judiciary and the application of clear-cut rules that leave no room for the discretional abuse of authority.

3.         Deprivation of Freedom for Political Dissidents[385]

267.          During 2009 the Commission continued to receive information on new cases of political prisoners, the conditions of deprivation of freedom of political dissidents in Cuba and especially the denigrating treatment by the penitentiary authorities against people singled out as political prisoners.

268.          One of the new cases of political prisoners imprisoned during the first half of 2009 that stands out in particular is the arrest of José Díaz Silva, president of “Por una Nueva República” (For a New Republic) who has been in the Valle Grande jail since last June 10, and his son Ernesto Díaz Esquivel, who is in the Combinado del Este jail[386].

269.          According to the Cuban Commission for Human Rights and National Reconciliation, the most recent list of people they have documented as having been punished or sentenced for political reasons contains the names of 208 prisoners, some on probation, an increase on the 205 cases documented at the end of January 2009[387]. This increase suggests a reversal to the gradual downward trend of recent years.

270.          On October 21, 2006 the Commission decided to transmit to the State and the representatives of the plaintiffs [388] and publish in its Annual Report 67/06 Case 12,476 (Oscar Elías Biscet et al. on the political dissidents arrested and subjected to summary trial in what is known as “Black Spring” 2003, through the enforcement of Article 91[389] of the Cuban Criminal Code as well as Law 88 on the Protection of the National Independence and the Economy of Cuba, for events related to the exercise of such fundamental freedoms as freedom of thought, conscience, opinion and expression, as well as the right to peaceful assembly and free association.  The prison sentences ranged from 6 months to 28 years.

271.          It should be noted that in Report 67/06, the IACHR concluded that the State of Cuba violated several articles of the American Declaration, among them Articles I, II, IV, VI,  XX, XXI, XXII, XXV and XXVI in detriment to the victims of the case; Article V related to eight of the victims; violation of Article X in detriment to 14 victims and violation of Article XVIII to the detriment of 73 victims. The Commission concluded that the State had not violated Articles IX, XI and XVII of the American Declaration to the detriment of the victims[390].

272.          The IACHR also recommended that the State of Cuba:

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

2. Adopt any measures necessary to adapt its laws, procedures and practices to international human rights law. 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 [391].

273.                      According to the information received by the IACHR, up to 2008, 21[392] victims of Case 12,476 have apparently been released from prison under Cuban “extrapenal licence”[393] mechanism (parole) on the grounds that they were seriously ill [394] and Rafael Millet Leyva was released on December 19, 2006.  The Commission therefore considers that the State has not fully complied with the recommendations formulated in Report 67/06. 

274.                      Pursuant to the provisions of the American Declaration of the Rights and Duties of Man, every individual is entitled to humane treatment while deprived of his or her freedom[395]. The Commission has referred in several of its reports to the issue of detention conditions in Cuba[396]. The Commission considers that the State’s responsibility as far as the integrity of people in its custody is considered, is not restricted to the negative obligation to refrain from torturing or mistreating those people. Since prison is a place where the State has total control over the life of inmates, its obligations towards them, among others, include the security and control measures necessary to preserve the life and physical integrity of people deprived of their freedom.

275.                      The testimony of Yordis García Fournier, former political prisoner released in September 2009 from the provincial prison of Guantánamo, is revealing of living conditions in the prisons:

Living conditions there are subhuman, the situation in terms of medical care is chaotic, chaotic because there is a small medical post there but it is like for emergencies, there are never medicines. That is scandalous, first because to get to that medical post one must wage a battle within the prison pavilions with the guards, who on several occasions categorically refuse access, saying: “I’m not going to take you to the medical post and nothing is going to happen about it.”  Despite so many complaints by the political prisoners and the common ones, we complained but the situation persists and this is known to everyone, both the members of the board of directors of the prison and the institutions that are supposed to oversee such things, here in the streets, independent human rights organizations. Medical care is precarious, there are no drugs; I recall that in the pavilion where I was the last three months I spent there, there was no physician, there was no medical care for the prisoners there.

The other thing is the food, which is chaotic, it’s cruel. The food is based on preparations of pork sausages generally if not always it is rotten, raw rice, without any type of cereal grain or porridges. Almost always it is the pork skin and skin of other animals, in bad condition, rotten with a bad flavor. Sometimes they provide juice drinks in poor condition, i.e. the food problems are unbearable, which indeed is the reason behind several protests by prisoners,  and not only do the political prisoners protest, but the common ones have also protested a lot about this situation. These same causes lead to the brutal and sometimes lethal aggression against the prisoners by the members of the military. Merely protesting over the food or medical care can bring on harsh repression.

276.          According to the information received by the IACHR in 2009, several of the victims of Case 12,476 suffer from health problems that arose or were aggravated at the time of their detention, without being given proper medical care[397]. The IACHR received information on the deteriorating health of Normando Hernández González (victim of case 12,476) sentenced to 25 years in prison. According to the information, Normando Hernández, who is ill and unable to eat normally, was admitted to the Combinado del Este penitentiary hospital on January 8, 2009.[398].  The Commission received information that Jorge Luís García Paneque (victim of case 12,476), is also seriously ill. According to his mother, Moralinda Paneque, he has lost more than 36 kilos, has amoebas, stomatitis and a throat problem that prevents him from eating. Jorge Luis García Paneque also has malabsorption syndrome, severe malnutrition, colic, back problems due to spina bifida, a cyst on his left kidney and kidney stones on the right one, and he is asthmatic as well[399]. The IACHR also received information on the health of Ricardo González Alfonso. According to his wife, Alida Viso, González Alfonso suffers constantly from aliments that cause him neck pain, gastritis and high blood pressure, and he needs to have an allergy test every 6 months. His wife also said that the time between family visits has been extended from every 45 days to every two months[400].

277.          It is important to point out that on July 10, 2009, the Inter-American Commission granted precautionary measures to protect the life, personal integrity and health of Ariel Sigler Amaya (one of the victims of case 12.476), whose health was gradually deteriorated as a result of his detention conditions and lack of medical care. On December 2, 2008, he was transferred to the “Carlos J. Finlay” Hospital in Havana where he remained until the end of February 2009; then on June 30, 2009 he had an endoscopy at “Gustavo Aldereguía Lima” Provincial Hospital after being given injections after being unconscious for two hours[401]. According to information received, the family last saw him on June 30, 2009. According to his wife, Noelia Pedraza Jiménez, Ariel Sigler is paralyzed in both legs and needs a wheelchair, and his legs have dried and lost muscle tone. He has also the strength in his hands necessary for basic movements, and the glands in his neck are swollen. According to statements made by his brother, Juan Francisco Sigler, Ariel Sigler’s health situation is the following[402]:

Ariel is suffering from the following illnesses: inability to move his lower limbs. The doctors still do not know what is causing this. Their statements are imprecise and inconsistent and they have tried to deceive us and delay giving us information. His legs are cyanotic and completely black. He has serious circulatory problems all over his body. His arms and the back of his thighs bruise. When he was put on a drip, his arms were completely covered with black bruises. His hemoglobin is low and he has bleeding hemorrhoids. Because of his critical state of health he cannot sit in a bath to soothe his hemorrhoids. He has gallstones which have caused a urinary tract infection. He has chronic gastritis, and polyps in his spleen. He has intestinal malabsorption syndrome, and his organism does not assimilate vitamins. He has very low blood pressure, 90 - 60. He has parasites and unidentified bacteria in his throat. The doctors have done three swabs but are unable to determine source of the bacteria. He has not been treated for it. He has advanced osteoporosis. He has pulmonary emphysema but has never smoked or been exposed to chemical gases. He has vomiting, dizzy spells, loss of appetite and does not have the strength to raise his hands. At nightfall he sometimes has high fevers. And he suffers from headaches and total weakness.

278.          The IACHR also received information on the constantly deteriorating health of Blas Giraldo Reyes, one of the nine trade unionists[403] sentenced in 2003 for taking part in organizations of the independent Cuban workers’ movement. According to Blas Giraldo Reyes’ wife, he was diagnosed with an advanced polyneuropathy and because of his state of health should not be in prison as he needs to receive better medical care[404].

279.          The IACHR was informed of the serious health situation of Mario Alberto Pérez Aguilera, a member of the Pedro Luis Boitel National Civil Resistance Movement, who is currently serving a ten year sentence at the “El Pre” prison in Villa Clara[405]. Mario Alberto Pérez Aguilera began his protest demanding respect for his rights on September 5 and since September 19, has not even drunk any water.

280.          On October 22, 2009 the IACHR decided to grant precautionary measures to Mario Alberto Pérez and requested the State of Cuba to take the necessary steps to guarantee his life and personal integrity, and to report on the actions taken to implement those measures.

281.          The Commission has stated its concern before about the number of political prisoners suffering chronic illnesses that affect their sight, kidneys, hearts and lungs, and about the fact that they do not receive proper appropriate medical treatment and the fact that several of them are elderly. It has even been brought to the attention of the IACHR that the penitentiary authorities have prevented the relatives of political dissidents deprived of their freedom from giving them the medication they need to treat their illnesses and which is not provided by the State.

282.          The Commission reiterates to the State that it should observe the United Nations Standard Minimum Rules for the Treatment of Prisoners[406] and the Principles and Best Practices on the Protection of Persons Deprived of their Liberty in the Americas of the Inter-American Commission on Human Rights[407].

283.          Likewise, the Commission reiterates to the State of Cuba the recommendation to release the victims of Case 12,476 immediately.