REPORT Nº 47/96

                                                      CASE 11.436

                            VICTIMS OF THE TUGBOAT "13 DE MARZO" vs. CUBA

                                                   October 16, 1996

 

 

          I.          BACKGROUND

 

          1.       On July 19, 1994, the Inter-American Commission on Human Rights received a complaint stating that in the early morning hours of July 13, 1994, four boats belonging to the Cuban State and equipped with water hoses attacked an old tugboat that was fleeing Cuba with 72 people on board.  The incident occurred seven miles off the Cuban coast, opposite the port of Havana.  The complaint also indicates that the Cuban State boats attacked the runaway tug with their prows with the intention of sinking it, while at the same time spraying everyone on the deck of the boat, including women and children, with pressurized water.  The pleas of the women and children to stop the attack were in vain, and the old boat--named "13 de Marzo"--sank, with a toll of 41 deaths, including ten minors.  Thirty-one people survived the events of July 13, 1994.

 

          2.       On February 28, 1995, the Inter-American Commission on Human Rights received another complaint concerning the same events, which was added to Case File No. 11.436, in accordance with Article 40.2 of its Regulations.

 

          II.        PROCEEDING BEFORE THE COMMISSION

 

          3.       The Commission, by letter of March 7, 1995, initiated the proceeding on the matter and asked the Cuban Government to provide information on the events subject of said communication, as well as any relevant factors that would enable it to determine whether all remedies under domestic jurisdiction had been exhausted.

 

          4.       In a letter dated 23 March 1995, the Cuban Interests Section transmitted to the Commission a copy of the remarks by President Fidel Castro to the Cuban communication media and an official communique by the Ministry of the Interior mentioning the events of July 13, 1994.

 

          5.       On March 30, 1995, the aforementioned documents were transmitted to the petitioners, who sent their observations on May 4, 1995.  These were transmitted to the Cuban Interests Section on May 10 of the same year.

 

          6.       The petitioners asked to be heard by the Inter-American Commission on Human Rights during its 90th Regular Session.  Consequently, the Commission extended an invitation to the petitioners and representatives of the Cuban Interest Section, to present their arguments concerning the events in the present case.  Said hearing took place on September 7, 1995.  The petitioners--Movimiento Cuba 21--were represented by Lic. Sergio Ramos, Lic. Guillermo Toledo, Dr. Belquis Rodríguez, and Mr. Jan Fernández.  The Inter-American Commission on Human Rights also heard the testimony of two of the survivors, Arquímedes Lebrigio and José Alberto Hernández.  The Cuban Interest Section did not send any representative.

 

          7.       The petitioners' arguments in said hearing were submitted to the Commission in writing on August 31, 1995.  The Commission, by letter of September 20, 1995, forwarded said documentation to the Cuban Interest Section and gave it 60 days to submit its comments thereon.

 

          8.       On February 2, 1996, the petitioners asked the Inter-American Commission on Human Rights for a report including the respective findings, pursuant to Article 46.2 of its Regulations.

 

          9.       The Commission, in a letter of March 27, 1996, again asked the Cuban Government for information, allotting it a period of 30 days to comply.

 

          10.     At its 92nd Regular Session, the Inter-American Commission on Human Rights approved Confidential Report No. 16/96, which was sent to the Government of Cuba on May 3, 1996, so that it might make whatever observations it deemed pertinent within three months of the transmittal date.

 

          11.     The Cuban Government did not respond to Confidential Report No. 16/96, approved by the Inter-American Commission on Human Rights during its 92nd regular session.

 

          III.       DENOUNCED EVENTS

 

          According to the information provided to the Inter-American Commission on Human Rights, the events that occurred are the following:

 

          A.         Sinking of the tug "13 de Marzo"

 

          12.     On July 13, 1994, at approximately 3:00 a.m., 72 Cuban nationals who were attempting to leave the island for the United States put out to sea from the port of Havana in an old tugboat named "13 de Marzo".  The boat used for the escape belonged to the Maritime Services Enterprise of the Ministry of Transportation.

 

          13.     According to eyewitnesses who survived the disaster, no sooner had the tug "13 de Marzo" set off from the Cuban port than two boats from the same state enterprise began pursuing it.  About 45 minutes into the trip, when the tug was seven miles away from the Cuban coast--in a place known as "La Poceta"--two other boats belonging to said enterprise appeared, equipped with tanks and water hoses, proceeded to attack the old tug.  "Polargo 2," one of the boats belonging to the Cuban state enterprise, blocked the old tug "13 de Marzo" in the front, while the other, "Polargo 5," attacked from behind, splitting the stern.  The two other government boats positioned themselves on either side and sprayed everyone on deck with pressurized water, using their hoses.

 

          14.     The pleas of the women and children on the deck of the tug "13 de Marzo" did nothing to stop the attack.  The boat sank, with a toll of 41 dead.  Many people perished because the jets of water directed at everyone on deck forced them to seek refuge in the engine room.  The survivors also affirmed that the crews of the four Cuban government boats were dressed in civilian clothes and that they did not help them when they were sinking.

 

          15.     Later, Cuban Coast Guard cutters arrived and rescued 31 survivors.  After being rescued, the survivors were taken to the Cuban Coast guard post of Jaimanitas, which is located west of Havana.  From there, they were taken to the Villa Marista Detention Center, which also serves as State Security Headquarters.  The women and children were released and the men were held.

 

          16.     The victims who died in the incident of July 13, 1994 are:  Leonardo Notario Góngora (27), Marta Tacoronte Vega (36), Caridad Leyva Tacoronte (36), Yausel Eugenio Pérez Tacoronte (11), Mayulis Méndez Tacoronte (17), Odalys Muñoz García (21), Pilar Almanza Romero (30), Yaser Perodín Almanza (11), Manuel Sánchez Callol (58), Juliana Enriquez Carrasana (23), Helen Martínez Enríquez (6 months), Reynaldo Marrero (45), Joel García Suárez (24), Juan Mario Gutiérrez García (10), Ernesto Alfonso Joureiro (25), Amado Gonzáles Raices (50), Lázaro Borges Priel (34), Liset Alvarez Guerra (24), Yisel Borges Alvarez (4), Guillermo Cruz Martínez (46), Fidelio Ramel Prieto-Hernández (51), Rosa María Alcalde Preig (47), Yaltamira Anaya Carrasco (22), José Carlos Nicole Anaya (3), María Carrasco Anaya (44), Julia Caridad Ruiz Blanco (35), Angel René Abreu Ruiz (3), Jorge Arquímides Lebrijio Flores (28), Eduardo Suárez Esquivel (39), Elicer Suárez Plascencia, Omar Rodríguez Suárez (33), Miralis Fernández Rodríguez (28), Cindy Rodríguez Fernández (2), José Gregorio Balmaceda Castillo (24), Rigoberto Feut Gonzáles (31), Midalis Sanabria Cabrera (19), and four others who could not be identified.

 

          17.     The surviving victims are:  Mayda Tacoronte Verga (28), Milena Labrada Tacoronte (3), Román Lugo Martínez (30), Daysi Martínez Findore (26), Tacney Estévez Martínez (3), Susana Rojas Martínez (8), Raúl Muñoz García (23), Janette Hernández Gutiérrez (19), Modesto Almanza Romero (28), Fran Gonzáles Vásquez (21), Daniel Gonzáles Hernández (21), Sergio Perodín Pérez (38), Sergio Perodín Almanza (7), Gustavo Guillermo Martínez Gutiérrez (38), Yandi Gustavo Martínez Hidalgo (9), José Fabián Valdés (17), Eugenio Fuentes Díaz (36), Juan Gustavo Bargaza del Pino (42), Juan Fidel Gonzáles Salinas (42), Reynaldo Marrero Canarana (16), Daniel Prieto Suárez (22), Iván Prieto Suárez (26), Jorge Luis Cuba Suárez (23), María Victoria García Suárez (28), Arquímides Venancio Lebrijio Gamboa (52), Yaussany Tuero Sierra (20), Pedro Francisco Garijo Galego (31), Julio César Domínguez Alcalde (33), Armando Morales Piloto (38), Juan Bernardo Varela Amaro, and Jorge Alberto Hernández Avila (33).

 

          B.         Refusal of the Cuban Government to recover the victims' bodies

 

          18.     In the days following the tragedy, relatives of the victims who had drowned asked the Cuban authorities to recover the bodies from the bottom of the sea.  The official response was that there were no special divers available to recover the bodies.

 

          19.     The nonprofit organization "Hermanos al Rescate" (Brothers to the Rescue)--which is dedicated to rescuing Cuban boat people trying to escape from the island--asked the Cuban Government for permission to fly over the spot where the events took place, to help recover the bodies, but the request was immediately denied.  To date, none of the drowning victims' bodies has been recovered by the Cuban authorities, despite the fact that the sinking of the tug "13 de Marzo" occurred in Cuban territorial waters.

 

          IV.       ACTIONS TAKEN BY THE CUBAN STATE

 

          20.     On March 23, 1995, the Cuban Interest Section sent the Inter-American Commission on Human Rights an English copy of the Official Statement of the Ministry of the Interior, describing the investigations carried out by the Cuban Government.  The title of said statement indicated that the "Ministry of the Interior reports on the accident caused by the illegal attempt to leave the country."

 

          21.     Said statement indicated that "The investigations carried out by the competent [Cuban] authorities into the incident that occurred on the morning of July 13 [1994], in which a tug belonging to the Maritime Services Enterprise of the Ministry of Transportation sunk seven miles north of the port of Havana, revealed that the disaster occurred as a result of a collision between said tug and another from the same company that was trying to capture it."

 

          22.     "The tug '13 de Marzo' was stolen by a group of people from the dock where it was moored.  Before taking the tug, the leaders of the group intending to leave the country illegally, disabled the port's communications system.  There was a report concerning the boat, which indicated the existence of leaks.  The perpetrators were aware of this and irresponsibly failed to repair the boat before going ahead with the escape."

 

          23.     "In the attempt to stop the robbery, three boats from the Maritime Services Enterprise of the Ministry of Transportation (MITRANS) tried to intercept the tug.  This was the cause of the unfortunate accident that led to the sinking of the tug [13 de Marzo].  Coast guard units patrolling the area near the place where the events occurred immediately joined the three MITRANS ships in a rescue operation to save the victims of the disaster."

 

          24.     "Because of the navigating conditions and the rough seas (Force 3) during the early morning hours, only 31 people were saved.  The survivors of the disaster were taken to shore at the port, where they received medical treatment.  The other members of the group vanished.  The main leader has been incarcerated."

 

          25.     "This unfortunate accident demonstrates once again how unscrupulous individuals take the lives of many people, including women and children, because of their wish to emigrate illegally from our country and to be welcomed as heroes by the United States, despite the fact that the American authorities--as we all know--deny them visas to travel in a normal manner."

 

          V.         POSITION OF THE PARTIES

 

          A.         The Cuban Government

 

          26.     In a letter dated March 23, 1995, the Cuban Government sent the Inter-American Commission on Human Rights a copy of the speech of President Fidel Castro to the Cuban news media on August 5, 1994.  In this speech, the Cuban Head of State spoke of the events of July 13, 1994 as follows:  "...it [the United States] wants at all costs to undermine the country's economic effort, as part of its overall plan to destroy the Revolution.  Radio broadcasts, subversive propaganda, all of this is spearheaded from outside and is encouraged abroad.  But, to be sure, this concrete fact--this phenomenon--has been much more clearly in evidence in recent weeks, starting with the accident involving the tug '13 de Marzo'.  I believe that one of the most infamous and most grossly cynical acts of the United States Government occurred because of this accident."

 

          27.     "(...)  As soon as news of the tug accident arrived, a thorough and exhaustive investigation was immediately carried out, based on information provided by the survivors, those who had been rescued, what each of them said; based on the information provided by some of those responsible for the seizure of the boat; the meticulous, detailed information provided by each of those who were on the tugs concerning each of the events that occurred, and as the facts became known, they were reported.  Three reports were prepared, as more data were collected, exactly on what had occurred.  (...) and it was they, the tug workers, who, as soon as they realized that the seizure of the tug--in this case the theft, the stealing of the tug--had occurred, acted swiftly to prevent them from taking the tug."

 

          28.     "Those who took the tug had accomplices, among them the one who had the key to the padlock, and they had the skipper of another tug.  They destroyed the communications, and the tug workers were not even able to communicate with the coast guard; the coast guard learned of it later.  All of this occurred within about an hour and 20 minutes, from the time they took the boat until it was sunk.  They tried to prevent the departure, and the boat they took, the stolen boat even collided with one of the boats that was trying to prevent it from leaving, there at the entrance to the bay, and this tug and the others kept trying somehow to stop the tug, to prevent it from being stolen.  The Coast Guard, informed later, received instructions to go to the place were these events were taking place, but it all happened very quickly."

 

          29.     "We know exactly what happened:  one boat positioned itself in front to try to slow the speed, another boat positioned itself behind, and another boat went to the side, but none of the crews had the intention of sinking that boat.  They were attempting something very difficult, actually, that is, to stop a boat.  All of this happened at night, on a dark night, in rough seas; in these conditions there were trying to stop it until the Coast Guard patrol boats arrived.  This is how the accident happened:  the one that went behind collided with the stern--and sailors and everyone who knows anything about the sea will realize that this is perfectly possible--of the stolen tug, the one that had been taken, with the 13 de Marzo, and that is how the collision occurred that led to the sinking; that's how it was; it was really an accident, and this was thoroughly investigated by the authorities, the Ministry of the Interior investigated and there was not the slightest intention to sink the boat.  What are we going to do with those workers who did not want them to steal their boat, who made a truly patriotic effort, we might say, to stop them from stealing the boat?  What are we going to say to them?  Listen, let them steal the boat, don't worry about the boat, and they went out to try--even though it was not their job--to keep them from stealing the boat."

 

          30.     "The Coast Guard had nothing to do with it, they arrived there a few minutes after the accident.  The tugs that were trying to stop the robbery threw them the lifesavers they had, a few lifesavers.  They had boarded a tug that had at least one leak, in very poor condition for doing that; it was tremendously irresponsible, that tug would have sunk even if there hadn't been a collision."

 

          31.     "They had only a few lifesavers--those tugs are small, they have only a few crew members--they threw the lifesavers they had and pulled some out, even some crew members, and with some danger, because there was the risk that they would seize their own tugs.  The Griffing patrol ships arrived with a lot more equipment, many more lifesavers, much more experience, and pulled 25 people from the water; between the tugs and the patrol ships they pulled 31 people from the water.  But it was all a deplorable, grievous, unfortunate accident.  We are all distressed that it happened."

 

          32.     "The workers' behavior was exemplary, there's no denying it, because they tried to stop them from stealing the boat.  What are we to say to them now, let them steal the boats, their livelihood?  The actions of the Coast Guard crews were irreproachable, they saved 25 lives.  So, this is what happened and as soon as information became available, more details were given.  Three reports were prepared concerning the incident.  However, the tug accident became the raw material for a terrible campaign against our country; it became the raw material for a campaign of disgusting slander, truly disgusting, and the United States Government was a willing participant, because, without finding out what happened and how it happened, it blamed the Cuban authorities for sinking the boat.  With incredible perfidy, it said:  'Government ships.'  In a socialist state everything belongs to the State:  buses, trains, boats, merchant ships, tugs, but they are operated by civilians, and the authorities were represented there essentially by the Coast Guard patrols."

 

          33.     "But I saw a great deal of perfidy in the attempt to describe the ships as 'government' ships, because what they meant to say is that the Government was responsible for sinking the boat.  They also issued statements, angry speeches in the Senate, warnings against committing these brutal acts, they called it 'brutal'; but it was all meaningless, for in fact the authorities had saved 25 lives.  What was the reason for this?  It was revealed, they not only launched a libelous campaign but also wanted to take the matter to the United Nations as part of the scheme and the strategy they were formulating, because they want to intervene in other countries through these international organizations.  The idea is clear, the intentions, starting that way, and to continue agitating."

 

          34.     "The Coast Guard received a complete explanation from the Ministry of the Interior about what to do to avoid accidents, to avoid the use of weapons if at all possible; they actually told them:  'Do not use any weapons.'  But, in fact, for a patrol boat to stop a ship at night, when things have already reached a certain point, is practically impossible."  "The Coast Guard crew received numerous instructions about how to handle this problem, and besides, what for?--because we don't have any special need to stop a departing boat."

 

          35.     "(...) There will always be time in history to hold each individual responsible for his actions.  To demand investigations!  When we investigated ourselves first, without anyone demanding it, and no one can demand it, because only our conscience, our duty, and our sense of responsibility can demand and do demand that we conduct an investigation in any case of this type; but, then, to demand investigations!"

 

          36.     "How do they reward our effort to obey the law every time an accident occurs, by accusing us of being murderers, accusing us, even, of stowing corpses?  They spread gossip, rumors that corpses were stowed away, they accuse us of being keepers of corpses."  "What they did because of the accident of the tug 13 de Marzo was to give the order to steal as many boats here as can be stolen.  I actually believe that tug was stolen on July 13.  But by July 26, a boat was stolen, one of the ones they usually use to transport passengers from Casablanca, which carry 10,000 or 12,000 people every day."

 

          B.         The petitioners

 

          37.     In their response of May 4, 1995, the petitioners stated inter alia that "The people [who were attempting to leave Cuba] went directly to the tug '13 de Marzo' without doing anything else.  The alleged damage to the communications systems of the state-owned Empresa Mambisa de Navegación is untrue.  All of the enterprise's communications system were intact.  Moreover, the other tugs had their radio communication systems intact and were under the control of the Government personnel who were operating them.  This means that they could easily have informed the authorities and received instructions from their control centers or from the Cuban Coast Guard and Navy corps."

 

          38.     "Upon departing, the passengers in the boat '13 de Marzo' saw two tugs, in the dark, on either side of the outlet from Havana Bay.  The survivors indicate that as soon as they passed them, they started their pursuit, spraying water on them with their hoses to flood them and sink them.  The speed of the other tugs' reaction should be noted.  This means that their basic crew was already on board and ready to set out.  Notice that Castro himself acknowledges and admits that there was a tug at the mouth of the bay that tried to stop the departure and that the others kept trying to stop it.  Castro himself says that the entire incident, from the departure to the rescue of the victims 7 miles off the Cuban coast took one (1) hour and twenty (20) minutes.  This supports the theory of the prior preparation of the other ships, i.e, that there was an ambush, and that the Cuban Government knew in advance of the escape plan, and perhaps to give a warning to prevent people from getting in the habit of taking ships to flee the country in search of freedom.  The massacre was premeditat­ed."

 

          39.     "One of the acts reported by all of the survivors was the fact that almost as soon as they left the mouth of the Bay of Havana, the two heavy-draft, iron tugs made by Polaca began to spray water on the old tug '13 de Marzo' to try to flood it and sink it.  Castro claims that the tug was leaking.  If this were true, the operators of the other tugs knew it, so why did they spray it with water if not to sink it even faster?  This is not the way to stop a ship in flight, as Castro alleges, but rather to sink it."

 

          40.     "The pursuing tugs were new, larger, made of iron, and faster.  The fleeing tug, the '13 de Marzo,' was old, made in the 40s, slower, smaller, and made of wood.  Logically, it had everything to lose in a deliberate collision with the tugs pursuing it."  "Castro speaks of a 'collision' at the mouth of the bay and another on the open sea.  However, the survivors' report indicates that the '13 de Marzo' was hit by several of the tugs pursuing them.  In her testimony, survivor Janet Hernández tells us that the MININT tugs started bumping into their sides.  It was seven miles off the Cuban coast, after losing the captain, who was thrown overboard by the impact of the jets of water, that one of the fugitives stopped the boat's engines.  It was then that the largest of the tugs pursuing them rammed the '13 de Marzo' in the stern and split it; and then returned to the charge and rammed the bow, causing it to sink.  If it had been a random accident, it would have received only one hit, but not two serious, separate blows, with time elapsing between the two.  Moreover, anyone with a little knowledge of navigation and logic will realize that objects in water do not stop abruptly, but come to a gradual stop.  Consequently, this was a 'collision' that could have been avoided.  This barrage of hits and these attacking boats prove that the sinking was intentional."

 

          41.     "It is widely and publicly known that the coasts opposite Havana Bay are constantly patrolled by Soviet-made type p-4 or p-6, high-speed torpedo boats, or 'TURYA' type gunboats (commonly known as Griffings).  These boats are capable of reaching speeds of 40 to 50 knots.  If, as Castro claims, they appeared on the scene and remained at a distance, why did they not act rapidly to stop the action of the attacking tugs?  This comes up in the survivors' reports and demonstrates the complicity of the military authorities in these macabre acts."

 

          42.     "The survivors' report reveals that despite the victims' pleas to stop trying to sink them, showing them the children on board, they continued their macabre persecution by spraying water on the deck, to the point that they forced the women and children to seek shelter in the cabins because of the danger of being thrown into the sea by the pressure of the jets of water.  When the boat sank after the collisions, 40 people were trapped in there, 23 of them children.  Had they been able to remain on deck, many would have been saved."

 

          43.     "The survivors also describe how those who were able to jump into the sea received no help from the tug crews.  On the contrary, they began circling at a high speed around the people in the water to create whirlpools and thus drown them.  The survivors say that it was not until the 'Griffing' patrol boat and another small boat arrived that they were pulled from the sea.  The tug crews were indifferent to those who were drowning, looking on and enjoying the Dante-esque spectacle, the work of their villainy."

 

          44.     "It should be pointed out that those who were rescued and/or survived were taken to the headquarters of Castro's political police, the Department of State Security, in the gloomy 'Villa Marista' torture center.  However, none of the aggressors was punished or tried by the courts of law, despite the crime committed.  On the following day, the  women were released, but not the men.  The women told the international press what happened, as stated in our reports to you."

 

          45.     "A few days later the Cuban Government claimed that it could not go down to investigate the blows sustained by the sunken boat, or recover the bodies, because it lacked the necessary equipment and personnel.  We refute this claim because the Cuban armed forces have frogmen units that were well trained by the former Soviet Union.  It also refused the offer of Cuban exiles who are qualified for this work, and it even prevented the service organization Brothers to the Rescue from approaching the spot where the incident occurred to help rescue victims and recover bodies."

 

          46.     "In his public appearance, Castro covered up for the murderers by applauding this act as a true patriotic effort, claiming that none of the crew members intended to sink the boat.  It should be pointed out that if it was not murder, then it was negligence; nevertheless, none of the aggressors was tried in court; instead, they were absolved and applauded by the Cuban Head of State.  The Cuban Criminal Code states that negligence does not excuse the commission of a crime (Article 48), and punishes it with sentences of 5 to 8 years."

 

          47.     "Assessing the facts and pursuant to the Cuban Criminal Code, the perpetrators of these acts committed the crimes of major destruction (Article 195), violation of the rules of navigation or maritime traffic (Article 209), murder (Article 36), crimes violating international law (Article 123), and, above all, genocide (Article 124, subparagraph 2)."

 

          48.     "In his appearance, Castro affirmed that it was perfidious to call the ships Government ships, because what they meant to say by this is that the Government was responsible for sinking the boat, and he pointed out that they were operated by civilians.  With this argument, the Cuban Head of State tried to excuse his Govern­ment.  However, if we look at how the State is structured internally, we realize that every activity is under centralized State control."

 

          49.     "According to the Socialist Political Constitution of 1976, the means of production are state-controlled (Articles 15, 16 and 17) and the economy is centralized.  Everyone who works for state enterprises is an employee of the Government.  Within each state enterprise there are two types of controls:  (a) management control, exercised by the director,  and (b) political control, which is the responsibility of the Secretary of the Communist Party for that enterprise.  The Communist Party is the country's only legal party (Article 5 of the Constitution).  A third important factor in these enterprises is the presence of members of the security police, who are in the Party's employ and who serve as agents or informants of the Department of State Security."

 

          50.     "Another aspect that Castro did not mention is that there are certain enterprises that are classified as strategic and are therefore military reserves of the Revolutionary Armed Forces, such as Civil Aviation and Maritime Transport.  The Maritime Navigation Enterprises are Armed Forces reserves and are chiefly coordinated by and attached to the security agencies and armed forces of the Cuban State."

 

          51.     "One interesting fact is that the survivors identified the attacking tugs as belonging to MININT (Ministry of the Interior).  This Ministry's functions encompass police and state security matters, as well as the organs of repression of the Cuban State.  It is obvious that the crime was committed by the repressive forces of the dictatorship.  Moreover, centralism is one of the characteristics of the system.  No major decision can be taken without the approval of Castro or of a high-level Government agency.  This case is no exception, given the presence of the surveillance element and the type of organization involved.  This act had to have been planned and directed by high-level Government agencies."

 

          52.     "There are behavioral factors that support this argument.  It is the custom of the Cuban State, when it is carrying out acts of repudiation and aggression against dissidents (witness the case of the poet María Elena Cruz Varela) to use agents of the Department of State Security dressed in civilian clothes, along with cadres from the Communist Party and the Young Communists Union.  This attack against defenseless civilians was planned, orchestrated and directed by the Communist Party and State Security and involved the direct participation of both."

 

          53.     At the hearing before the Inter-American Commission on Human Rights on September 7, 1995, the petitioners stated inter alia that "We have no doubt whatsoever that on the morning of July 13, 1994, the 72 people who left Havana Bay by seizing the old wooden tug and who were fleeing Cuba in search of the liberty denied them there, were pursued and their vessel rammed by three of the Cuban State's most modern tugs; and this occurred as soon as they left the bay.  While they were executing these maneuvers, they also sprayed jets of water on the people who were on the deck of the tug '13 de Marzo,' who pleaded that there were children on board, to stop spraying them with water and stop ramming their boat, that they were giving up and returning to Cuba.  Finally, at a distance of 7 miles from the Cuban coast, a blow to the stern caused the tug '13 de Marzo' to sink."

 

          54.     "To complete the spectacle, the Cuban State tugs circled around the people who were still afloat, creating whirlpools so that they sank, and continued spraying them with jets of water.  The death toll of this abominable crime, of this genocide, was 41 people, including several children.  Three days after the incident, some of the 31 survivors were rescued by other Cuban State ships and not by the tugs.  The first thing the Cuban State did was to arrest these survivors and, on the second day, release the women and children.  Of particular note is the testimony given in Havana by survivor María Victoria García Suárez after her release.  WSCV Channel 51 managed to get the interview out of Cuba.  The television images of this woman crying and accusing the Cuban Government moved the public.  María Victoria García Suárez, who is still in Cuba, told how she lost her husband, her 10 year-old son, her brother, and three uncles and two cousins."

 

          55.     "Then, other eyewitnesses in Cuba, such as Janet Hernández, overcame their fear of government repression and told the outside world the truth about the incident.  It should be pointed out to this distinguished Commission that the survivors' testimonies, given on different dates and in different places, are consistent, which proves the absolute truth of the crime committed by the Cuban Government."

 

          56.     "The first reaction of the Cuban Government through its representative in the Cuban Interest Section in Washington, D.C., Mr. Rafael Dausá, was to describe the survivors' testimonies as 'science fiction.'  On July 15, 1994, the Cuban Government, through Mr. Dausá, said that the tug '13 de Marzo' was '9 years old and no longer used because of its appalling condition.'  'It was no miracle,' Dausá said.  'It sank because of its poor mechanical condition.  The irresponsible attitude of these pirates caused the accident.'  (See the article from the newspaper 'El Nuevo Herald de Florida' of Saturday, July 16, 1994)."

 

          57.     "That same day, July 16, 1994, the Cuban Government changed its version of the previous day in a statement issued by the Ministry of the Interior, stating that an investigation had been conducted, which revealed that the tug '13 de Marzo' had sunk because of a collision with another tug that was trying to catch up with it.  The statement went on to say that the leaders of the group attempting to flee Cuba illegally had destroyed the port communications system of the Interior Ministry's Maritime Services Enterprise, the owner of the tug '13 de Marzo,' that the tug had a leak, and that those responsible for the incident knew it, which made them irresponsible for not fixing this problem before continuing with the escape.  It also said that in an effort to prevent the theft, three tugs tried to intercept the '13 de Marzo' and it was then that the unfortunate accident occurred that caused the latter to sink."

 

          58.     "According to the statement of the Ministry of the Interior, two coast guard ships that were on patrol in the area joined the three tugs in a rescue operation to save the victims of the accident.  The statement concludes by blaming those who were fleeing Cuba in the tug '13 de Marzo' for the 'alleged' accident."

 

          59.     "Following this statement announcing the investigation of the incident by the Cuban Ministry of the Interior, the Cuban Government maintained official silence on the matter, except for a few statements of the Chief of the Army, Raúl Castro, on July 26, 1994, in which he repeated the official version in order to show that the sinking was accidental.  On August 5, 1995, the Cuban Head of State, Fidel Castro Ruíz, held a press conference as a result of the disturbances against his government by more than 30,000 Cubans in Havana that day.  In this interview, he enlarged upon the events involving the sunken tug and confirmed the Government's version.  The transcript of this interview is the one submitted to this distinguished Commission by the Cuban Government, together with the brief note on the investigation of the incident by the Cuban Ministry of the Interior."

 

          60.     "In this interview, Fidel Castro elaborated on the Cuban Government's version of what happened to the tug '13 de Marzo'.  In it, he distorted certain facts, concealed others, and generally lied about what actually happened.  The first thing that jumps out is his statement--incredible from any perspective--that his Government conducted a thorough and exhaustive investigation.  How can it be believed that two days after the events occurred, that is, in so short a time, his Government could have conducted a thorough and exhaustive investigation?  Can any sensible person believe that the simple statement issued by the Ministry of the Interior concerning the investigation it conducted was the product of a thorough and exhaustive investiga­tion?"

 

          61.     "Moreover, on August 5, 1994, when Fidel Castro again spoke of the events involving the tug '13 de Marzo', 23 days had elapsed since its sinking.  Is it possible that an exhaustive and thorough investigation could be conducted of an event of such a magnitude as the sinking of said tug 7 miles off the Cuban coast?  Where is the seriousness, the responsibility, and the sensitivity of a government and of a leader who dare to lie publicly in this manner, in a case where 41 innocent people lie dead at the bottom of the sea?  So far, we have not seen this thorough and exhaustive investigation carried out by the Cuban Government.  We don't know if the Cuban Government has made anything else public."

 

          62.     "A thorough and exhaustive investigation would have involved raising the tug '13 de Marzo' and delivering the bodies to their relatives.  If the Cuban Government was unable, because of its resources to raise the sunken tug, then it could have requested help from other governments and international organizations.  The Cuban Government can still demonstrate its good faith and its 'alleged' interest in the truth by allowing international organizations, such as this distinguished Commission, to conduct an independent investigation both outside and within Cuban territory and attempt to raise the tug '13 de Marzo'.  This distinguished Commission should note that the Cuban Government, through its Ministry of the Interior and its Head of State, in its version of what happened, remains silent about the jets of water that the men on the three pursuing tugs sprayed on those who were sinking in the tug '13 de Marzo'.  The Cuban Government should be asked why it remained silent about this matter, when all of the survivors relate this fact.  Or is it perhaps that the Cuban leaders realized that admitting this truth would cast doubt on their claim that the sinking of the '13 de Marzo' was accidental?"

 

          63.     "The Cuban Government should be asked what it meant when it said that the tug crews "kept trying somehow to stop the tug, to prevent it from being stolen..."  Aren't these expressions a veiled attempt to conceal the facts, that the manner of stopping them was to attack the tug '13 de Marzo' and spray its occupants with jets of water? 

 

          64.     "How can the Cuban Government and its leader be believed when they say that those who were fleeing in the tug destroyed the company's port communica­tions and that this is why the Coast Guard learned of it later?  What this is supposed to suggest is that the people who were on the three pursuing tugs were unable to communicate from shore with the Coast Guard, so they were the ones who stopped the tug that sank.  The claim that the Coast Guard learned of it later contradicts the report of the survivors that the Coast Guard ships were following the '13 de Marzo' as soon as it left the bay."

 

          65.     "The Cuban leader should be asked what he meant by the statement 'the Coast Guard learned of it later.'  By what means and from whom did they learn of it?  How much time after the tug '13 de Marzo' left the port was the Coast Guard informed?  Obviously, a thorough and exhaustive investigation could not leave these and many other questions unanswered.  Furthermore, it slipped the Cuban Governme­nt's mind that the Coast Guard naval units have radios on their ships and that the tugs also have radios to communicate with other vessels or their bases on shore.  Here is another of the Cuban Government's lies."

 

          66.     "Although Fidel Castro tried to establish that the operators of the three pursuing tugs were civilian employees of Empresas Mambisas de Navegación and that they were acting in their own interest, in our petition of May 4, 1995 to this distinguished Commission, we clearly show that the men at the helm of those tugs were State Security employees.  We reach this conclusion not only because of the nature of the Cuban system, but also because the survivors' testified that it was so.  These same State Security employees, dressed as civilians, are members of the 'Swift Action Brigades' that the Cuban Government sends into the streets with weapons and clubs to beat dissidents."

 

          VI.       QUESTIONS RAISED IN THIS CASE

 

          67.     The other question to be resolved is whether the sinking of the Tugboat "13 de Marzo" took place with the support or tolerance of the public authorities or whether the latter acted in such a way that the violation occurred for want of prevention or with impunity.  That is, the Inter-American Commission on Human Rights must determine whether the Cuban State is internationally liable for the deaths of the 41 people who were trying to flee the country on the morning of July 13, 1994.

 

 

 

 

          VII.      GENERAL CONSIDERATIONS

 

          A.         Considerations regarding the formal requirements of admissibility

 

          68.     The Inter-American Commission on Human Rights has handled this case in accordance with the provisions of Chapter III of its Regulations.  Article 51 of said chapter states that "The Commission shall receive and shall examine petitions containing a complaint about alleged violations of the human rights enshrined in the American Declaration of the Rights and Duties of Man in respect of member States of the Organization which are not signatories of the American Convention on Human Rights."

 

          69.     The above statement leads the Inter-American Commission on Human Rights to conclude that it is competent to hear this case as it involves violations of rights enshrined in the American Declaration of the Rights and Duties of Man:  Article I on the Right to Life and Personal Integrity; Article VIII, Right of Residence and Movement; and Article XVIII, Right to Justice.

 

          70.     The procedure followed in this case is that provided for by Article 52 of the Regulations of the Inter-American Commission on Human Rights, which states:  "The procedure applicable to petitions concerning member States of the Organization which are not signatories of the American Convention on Human Rights shall be that established in the General Provisions contained in Chapter I, Title II; in Articles 32-43 of these Regulations, and in the articles indicated below."

 

          71.     The presentation of the petition satisfies the formal requirements of admissibility set forth in Article 32 of the Regulations of the Inter-American Commission on Human Rights, the procedure provided for in Article 34 of the same regulatory text having been exhausted.  Likewise, the claim is not pending in another international settlement proceeding, nor is it the repetition of a prior petition already examined by the Commission.

 

          72.     Regarding the remedies under domestic law, the Inter-American Commission on Human Rights considers that in the present case, the provisions of Article 37(1) of its Regulations have been fulfilled, that is, said remedies have been applied for and exhausted in accordance with the generally recognized principles of international law.  This is inferred from the information provided by the Cuban Government on March 23, 1995.  According to the Official Statement of the Ministry of the Interior, "the investigations carried out by the competent authorities concerning the events that occurred in the early morning hours of July 13, [1994] (...) revealed that the disaster occurred as a result of a collision between said tug and another from the same company that was trying to capture it."  (...)  "This was the cause of the unfortunate accident that led to the sinking of the tug [13 de Marzo]."  "Because of the navigating conditions and the rough seas (Force 3) during the early morning hours, only 31 people were saved."

 

          B.         Considerations regarding the facts denounced and analysis of the evidence

 

          73.     In the present case, documents have been submitted that provide information on the facts denounced, which facts were moreover made public knowledge by the international press.  Among the documents submitted to the Inter-American Commission on Human Rights is the following testimonial evidence of persons who were present at the site of the events and at the time they occurred on July 13, 1994:  Arquímedes Lebrigio and José Alberto Hernández (surviving witnesses who appeared before the Inter-American Commission on Human Rights during its 90th Regular Session, September 7, 1995),[1] María Victoria García Suarez, Jeanette Hernández Gutierrez (survivors).[2]

 

          74.     The statements of the eyewitnesses show that on July 13, 1994, between 3:00 and 4:00 a.m., a tug called "13 de Marzo" left the port of Havana, Cuba, headed for the United States, and that there were 72 people on board, including a number of minors.

 

          75.     The surviving witnesses concur in stating that they were overtaken and surrounded by four boats when they were seven miles off the Cuban coast, and that the latter turned jets of water on them--on everyone on deck--using the tanks with which they were equipped.  The women who were on deck showed them the children to prevent the attack with the water hoses from continuing.  Moreover, two of the ships rammed the tug on the port and starboard sides, causing it to sink.  The survivors agree that while the disaster was occurring, the crews of the four ships did not help them.  Later, Cuban Coast Guard cutters arrived to rescue the survivors of the wreck.

 

          D.         Considerations regarding the international responsibility of the Cuban State

 

          76.     Having established the facts as they occurred on the morning of July 13, 1994, the Inter-American Commission on Human Rights considers it necessary to determine whether the Cuban State is internationally responsible for the deaths of the 41 victims who died in said shipwreck.  The basic elements for establishing international liability can be summarized as follows:[3]