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CUBA
I.
BACKGROUND
1.
The last report on the human rights situation in Cuba was approved
by the Inter-American Commission on Human Rights during its 106th
regular session. The draft
report had previously been transmitted to the Cuban State for its
observations on March 1, 2000, pursuant to Article 63(h) of the
Commission’s Regulations. The Cuban State refrained from submitting
observations and, on April 13, 1999, the Commission adopted the final
report, and decided to publish it in Chapter IV of the Annual Report for
1999.
2.
The Commission has continued to observe closely the way in which
the human rights situation has evolved in the Republic of Cuba.
This report examines the most significant human rights-related
events that have occurred in Cuba during the year 2000, and in the period
leading up to the publication of this Annual Report.
It also includes an analysis of positive legislation adopted in
Cuba, to determine whether it is compatible with the principles enshrined
in the American Declaration of the Rights and Duties of Man.
3.
This report is divided into seven main sections.
The first section covers progress recorded or positive measures
adopted by the Cuban State in the area of civil, political, economic,
social and cultural rights. The
second section contains a general assessment of the situation of human and
political rights in Cuba, and the most significant events relating to
freedom of expression, association and assembly, as well as the prevailing
situation with respect to the right to justice and due process.
The third section analyzes economic, social and cultural rights in
Cuba, while the fourth section (which is of particular importance to the
Commission) examines the situation of the country's prison population.
In the fifth section, the Commission refers to economic sanctions
and the need to suspend them definitively, in order to ensure full
enjoyment of economic and social rights by the Cuban people, and a
peaceful transition to a democratic system of government.
The conclusions and recommendations of the report are found in the
sixth section.
4.
The Commission drew upon a variety of sources in preparing this
report, including testimony given before the Commission at its regular
sessions by alleged victims of human rights violations; complaints lodged
against the Cuban State for alleged violations of the rights enshrined in
the American Declaration; information provided by nongovernmental
organizations, both in Cuba and abroad; reports from intergovernmental
organizations; and publications of international academic institutions
based on visits to Cuba.
II.
HUMAN RIGHTS MEASURES ADOPTED BY THE CUBAN STATE
5.
One of the most important measures adopted by the Cuban State with
respect to individual liberty was the release from prison of three of the
four leaders of the Grupo de Trabajo de la Disidencia Interna (Internal Dissidents'
Working Group), who were sentenced to various prison terms in March 1999
for the crime of sedition. These
persons wrote and published a manifesto entitled "La
Patria es de Todos" (The Homeland Belongs to All of Us),
criticizing the thesis of the Fifth Congress of the Cuban Communist Party
(PCC), and analyzing the status of the economy, human rights and democracy
in Cuba. The economist Marta Beatriz Roque Cabello, the lawyer René Gómez
Manzano, and the engineering professor Félix Bonne Carcasés were given
conditional release in May 2000, but the former Cuban Air Force pilot,
Vladimiro Roca Antúnez, remains in prison.
The three dissidents who were released issued a communiqué on May
30, 2000, which included the following declaration:
When
our group was imprisoned, the result of proceedings was the same for all
of us, and we were sentenced for acts carried out jointly by the four of
us. Although there was no
substantial difference between our individual actions, the penalties
varied between 3 1/2 and 5 years.
It
is clear that we could have been given conditional release more than a
year ago, and this would certainly have happened if we had been given the
same sentence. Nevertheless,
we recognize this gesture as positive, but we cannot consider it complete
until our colleague is released from prison.
We
do not believe there are any grounds for treating Vladimiro Roca Antúnez
differently from the rest, and we request the Cuban authorities to release
him, as an act that is just and necessary.
It
should be noted that the four members of the Internal Dissidents' Working
Group (GTDI) were held in provisional confinement for 19 months.
The Inter-American Commission on Human Rights has taken note of the
imprisonment of these three dissidents, and hopes that the Cuban State
will take the measures necessary for Vladimiro Roca Antúnez to be
released immediately and unconditionally.
6.
With respect to the right to freedom of religion and worship, the
State displayed greater tolerance during the period covered by this
report. It is important to
note that the Head of the Catholic Church, John Paul II, designated July 9
as the day for worldwide celebration of the Jubilee in Prisons, and this
took place in Cuba on July 9, 2000. Cardinal
Ortega celebrated the Jubilee in Prisons in the church of Caridad del
Cobre in Havana. Msgr. Ortega
expressed his hope that in future he could say mass in any one of the
country's 200 prisons. The
religious celebration was attended by several mothers of political
prisoners, and by more than 100 dissidents, representing some 30 different
groups. An important fact is
that the best-known dissidents had never before met in a church.
Among those attending the homily were Gustavo Arcos Bergnes,
Osvaldo Payá Sardiñas, Aida Valdés Santana, and the recently released
leaders of the Internal Dissidents' Working Group: Martha Beatríz Roque
Cabello, René Gómez Manzano and Félix Bonne Carcassés.
In Santiago de Cuba, as well, Bishop Pedro Meurice Estiú held a
mass for the Jubilee in Prisons, in the Church of San Francisco de Asís,
in which he asked the Cuban Government to declare an amnesty for political
prisoners. Among the groups attending were the Movimiento
Cubano Jóvenes por la Democracia [Cuban Youth Movement for
Democracy], the Club de Presos y ex-Presos
Políticos [Political Prisoners’ and Ex-Prisoners’ Club], the Frente
de Perseguidos Políticos [Victims of Political Persecution], the Movimiento Seguidores de Chibás ]Chibas Monitors’ Movement] and
the Forum Feminista [Feminist
Forum]. A further sign of
openness was the permission given by the Cuban State for more than a
thousand children to take their First Communion at a mass celebrated on
December 9, 2000, in front of the San Carlos Seminary, in Old Havana.
Mass was said by the Bishop of the city of Cienfuegos, Msgr. Emilio
Aramburem; for the event, an altar was set up and folding chairs were
placed in the La Maestranza Park. Nearly
3000 believers attended the ceremony. As well, in September 2000, hundreds
of believers paraded around several blocks in the center of Havana,
following the procession of the Virgen de la Caridad del Cobre, the
Patroness of Cuba, led by Cardinal Jaime Ortega, Archbishop of Havana. This procession, which began at the parish church of Nuestra
Señora de la Caridad, was the third to be held since the statue was
returned in September 1998 following the visit of Pope John Paul II to
Cuba. During the year 2000,
according to the Conference of Catholic Bishops of Cuba (COC), public
processions marking this date on the Cuban religious calendar were also
held in Cienfuegos and Santa Clara, in the center of the island, and in
the eastern districts of Camaguey, Ciego de Ávila, Bayamo and Manzanillo.
7.
With respect to religious freedoms, the Inter-American Institute of
Human Rights, an international academic institution that has been working
with Cuba since 1996 on human rights promotion and education, expanded its
efforts to promote human rights in the field of religion.
During the period covered by this report, it held a conference on
human rights and dispute settlement, with some 50 religious and lay
representatives. The event
was sponsored by the Archdiocese of Havana and was held in the capital,
with the participation of the Executive Director of the IIHR, Roberto
Cuellar, accompanied by Ligia Bolívar, consultant, Daniel Baldizón and
Ronalth Ochaeta, program officers of the IIHR.
The event took place in a free and open atmosphere, and generated
hopes that both the IIHR and the Cuban Catholic Church could expand their
two-way cooperation. As well,
the IIHR sent a mission to Cuba in December 1999 to attend the symposium
on "Apostolic Exhortation: Anthropological, Economic and Social
Implications in Cuba”, hosted by the Cuban Catholic Church in Havana,
December 1 to 3. The IIHR
took advantage of this occasion to participate in the "First Regional
Seminar for Teachers”, sponsored by the International Committee of the
Red Cross (ICRC) and the Cuban Red Cross, which was attended by more than
40 university teachers from the Caribbean and Central America.
8.
With respect to freedom of assembly, the Cuban State allowed
dissidents to meet on December 15 and 16, 2000, for the "Seminar on
the Present and Future of the Cuban Economy from the Viewpoint of Civil
Society". This academic
event was hosted by the Cátedra de Estudios Sociales y Humanísticos Padre Félix Varela,
and was intended to foster thinking and debate and offer viable solutions
to current and future problems of the Cuban economy, as seen by civil
society, taking into account both cultural heritage and universal
experience. The seminar
discussions had an academic focus, and related to the following issues: 1)
conceptual problems with the various forms of ownership; 2) the importance
of family remittances in the Cuban economy; 3) small and medium-scale
enterprises: business ownership; 4) repercussions of the current situation
on the family economy; and 5) the Cuban and world economies: globalization
and integration.
9.
Under the aegis of the United Nations Human Rights Commission, the
Special Rapporteur on Violence against Women, Dr. Radhika Coomaraswamy,
visited Cuba from June 7 to 12, 1999, in response to an invitation from
the Cuban government issued on August 17, 1998.
This fact in itself constituted a positive step forward, since, as
the Special Rapporteur noted, "this was the first time that the
government had issued an invitation to a United Nations human rights body.
Government representatives welcomed the Special Rapporteur warmly,
and the Ministry of Foreign Relations and its Vice Minister, in
particular, indicated that her visit would set a precedent for possible
future invitations to other special rapporteurs that had asked to visit
Cuba".
In her report, issued on February 8, 2000, the Special Rapporteur examined
the situation of violence against women in Cuba, from the viewpoint of
civil, political, economic, social and cultural rights, and concluded that
there was a need for other human rights agencies to conduct a more
detailed study of the human rights situation in Cuba.
In this respect, among the positive measures adopted by the Cuban
State, the report notes that “the Cuban revolution of 1959 was cited by
all the Special Rapporteur’s interlocutors as the turning point for
Cuban women. It is held that women’s full participation in development
and in society has been gradually achieved in the past 40 years, since the
revolution. Women’s liberation has progressed in the professional
sphere, in urban life and in rural areas. According to statistics provided
to the Special Rapporteur, women in Cuba represent 58 per cent of
university graduates, and occupy 65.5 per cent of professional and
technical positions in the country and 30.5 per cent of management
positions. Currently, 27.6 per cent of parliamentarians are women. The
Special Rapporteur was pleased with the feminization
of the judiciary: 70 per cent of judicial professionals and 60.2 per
cent of judges in Cuba are women. Cuba is one country where the progress
of women has resulted in the need to consider quotas for men in certain
university disciplines, such as medicine. The Cuban revolution has
resulted in a great deal of benefit for women. This was a conclusion that
was rarely contested by any party, group or individual the Special
Rapporteur spoke to.”
III.
CIVIL AND POLITICAL RIGHTS
A.
Discrimination on political grounds in relation to the lack of
freedom of expression, association, and assembly
10.
The Inter-American Commission has continued to receive numerous
complaints of persons who have been imprisoned arbitrarily for attempting
to exercise peacefully their rights to freedom of expression, association
and assembly. The Commission was informed that on the days preceding
February 24, 2001, agents of the Cuban State Security department
throughout the island moved to block activities scheduled in commemoration
of the downing of aircraft of the organization “Hermanos al Rescate”
["Brothers to the Rescue"], which took place in international
airspace and in which four civilian pilots died at the hands of the Cuban
Air Force (FAC).
11.
According to information provided, Ricardo González, a member of
the Liberal Party, had programmed the activity for the afternoon of
February 23, 2001. Yet on the
morning of that day, State Security agents deployed near his home blocked
the arrival of participants. On
the morning of February 24, 2001, Joaquín Iglesias Torres, President of
the Democratic Movement for Human Rights [Movimiento
Democrático Pro Derechos Humanos] was arrested at his home by an
officer of the National Revolutionary Police (PNR) and a State Security
agent, Miguel Echenique. That
same morning Roger Morales Rey, Yunier Iglesias Silva and Jesús Jersen
Garcés were arrested on the Puerto Padre pier, as they attempted to toss
flowers into the sea in commemoration of the event.
These persons were taken to the police station and their flowers
were confiscated. They were
released an hour later.
12.
On the afternoon February 24, 2001, the home of Leonardo Bruzón
Avila was surrounded by State Security officers, who blocked the arrival
of human rights activists. Avila
had scheduled a commemorative ceremony for eight o'clock that night.
In the town of Santa Clara, the home of Lester González was
besieged by eight State Security officers, who prevented him from leaving
his house. Lester González
was arrested at 5 PM and taken by two officers in a taxi, license plate VC
2009, for a distance of some 70 kilometers from the town of Santa Clara.
On the way, the victim was threatened and physically mistreated by
the officers, because of his human rights activities.
González was released at 7 PM, three kilometers from his home.
13.
On the same day, two human rights activists, Aida Valdé Santana
and Eddie Espinosa Franco, were arrested at their homes.
Antonio Alfonso Mesa was intercepted by State Security agents as he
was driving to the home of Leonardo Bruzón Avila, President of the Movimiento
24 de Febrero, to commemorate that day.
Mesa was obliged to leave the vicinity.
On February 22, 2001, Ricardo González, an independent journalist,
and Pedro Crespo, a priest of the Orthodox church, were also detained.
On February 22, as well, Elizardo Sánchez Santa Cruz, president of
the Comisión Cubana de Derechos Humanos y Reconciliación Nacional
[Cuban Commission for Human Rights and National Reconciliation], and Héctor
Palacios Ruíz, of the Center for Social Studies, where taken from their
homes by State Security agents and driven to the police station at Seventh
Avenue and 62nd Street in the town of Playa.
14.
The Inter-American Commission on Human Rights is profoundly
concerned by these events, because they violate rights enshrined in the
American Convention on the Rights and Duties of Man.
In fact, Article XXV of that instrument provides that “No person
may be deprived of his liberty except in the cases and according to the
procedures established by pre-existing law.
"No person may be deprived of liberty for nonfulfillment of
obligations of a purely civil character…
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, otherwise, to be
released." The
Commission also considers that all persons subject to the jurisdiction of
the Cuban State must enjoy the rights to the freedom of expression,
association and assembly enshrined in Articles IV, XXI and XXII of the
American Declaration. The
persons arrested by the Cuban State were attempting to exercise those
rights in a peaceful manner and, therefore, the restrictions to which they
were subjected may be deemed to constitute violations of their human
rights.
15.
Another extremely serious case that came to the Commission's
attention recently was the arrest of two citizens of the Czech Republic,
who were held for 23 days. The
former Minister of Finance and current Parliamentary Deputy Ivan Pilip,
and the former student leader and current representative of a
nongovernmental organization in the Czech Republic, Jan Bubenik, were
arrested in the province of Avila on January 12, 2001, and accused of
sedition and acts contrary to State Security, crimes stipulated in
Articles 99 and 124 of the Cuban Penal Code.
The crime that these Czech citizens had committed was to meet, in a
peaceful manner, with Antonio Femenías, an independent journalist of the
Patria news agency, and Roberto Valdivia, a member of the Comité
Cubano Pro Derechos Humanos. Yet
the Cuban State issued a statement in the official press on January 16,
2001, indicating, among other things, that "those who so grossly
violate our laws and attempt to conspire against the revolution have no
right to impunity whatever, regardless of their position or rank (…)
their visit had nothing to do with tourism, and their real purposes were
to make contact with counterrevolutionary elements, give them instructions
and deliver them resources (…) was to maintain subversive contact with
members of counterrevolutionary groups (…) the Czech agents will be
turned over to the courts, which will decide what measures to take."
The Czech Republic, together with Poland, cosponsored a resolution
in the United Nations Human Rights Commission condemning the human rights
situation in Cuba, and this was issued in April 2000, in Geneva.
On April 18, 2000, the Cuban authorities organized a march of the
"fighting people" in front of the diplomatic office of the Czech
Republic in Havana, as a protest against the United Nations resolution.
The two Czech citizens were released on February 5, 2001.
16.
The Inter-American Commission on Human Rights draws attention to
the international obligation of the Cuban State with respect to the rights
of assembly and association, enshrined in Articles XXI and XXII of the
American Declaration of the Rights and Duties of Man.
As well, it reiterates the principle enshrined in Article XXVI of
that international instrument, which reads: “Every accused person is
presumed to be innocent until proved guilty," and therefore the
public accusations in the official press against the Czech citizens could
have constituted pre-judgment of the alleged crimes, before those persons
were tried by the Cuban courts. The
Inter-American Commission on Human Rights considers that the State has the
obligation to ensure that any person subject to its jurisdiction, and
accused of a crime, has a fair trial.
A press campaign, in media that are dominated by the State, can
have an adverse effect on the fairness of the process, particularly when
such a campaign is promoted by one of the organs of that same State.
17.
This is not an isolated event in the history of human rights in
Cuba. Several international
human rights organizations categorize the year 2000 as one that showed no
progress in respect to civil and human rights.
Thus for example, the organization Human Rights Watch/Americas
declared that,
despite
a few positive developments over the course of the year, the Cuban
government's human rights practices were generally arbitrary and
repressive. Hundreds of peaceful opponents of the government remained
behind bars, and many more were subject to short-term detentions, house
arrest, surveillance, arbitrary searches, evictions, travel restrictions,
politically-motivated dismissals from employment, threats, and other forms
of harassment. (…) Cuba's repressive human rights practices were
undergirded by the country's legal and institutional structure. The rights
to freedom of expression, association, assembly, movement, and of the
press remained restricted under Cuban law. By criminalizing enemy
propaganda, the spreading of "unauthorized news," and the
insulting of patriotic symbols, the government effectively denied freedom
of speech under the guise of protecting State Security. The authorities
also imprisoned or ordered the surveillance of individuals who had
committed no illegal act, relying upon laws penalizing
"dangerousness" (estado
peligroso) and allowing for "official warning" (advertencia
oficial).
18.
With respect to the freedom of expression, the organization Reporters
Sans Frontières, in its Annual Report 2000, concluded the following:
Cuba
is today the only Latin American country with a government that, in
decreeing that freedom of the press must "conform to the objectives
of a socialist society”, exercises total control over the information
that reaches its people. It
is also the only country in the region where journalists are put in jail.
To maintain this state of affairs, the authorities rely not only on
outright repression but also on social isolation of independent
journalists. The government
has many repressive tools at its disposal, from confiscating materials and
erecting other obstacles to the work of independent journalists, to
arresting them and sentencing them to long prison terms.
The department of State Security is the principal agency for
executing this policy, the purpose of which is to give journalists the
choice between prison or exile.
19.
The Inter-American Press Association, in its report on
"Freedom of the Press 2000", referred to the case of the
independent journalists Bernabé Arévalo Padrón, Joel de Jesús Díaz
Hernández and Manuel González Castellanos, “who are in prison without
having committed any crime, but for just exercising the human right of
free expression through the modest means available to independent
journalists in Cuba”. In this respect, the IAPA resolved as follows:
To
raise its voice in protest at the more than 41 years of silence imposed
on the Cuban press through the general seizure of all independent media,
which has no precedent in Latin America; to reiterate its condemnation
of the totalitarian government of Cuba for the jailing, repression and
harassment of independent journalists; to demand that the Cuban
government release the three journalists jailed for exercising the human
right of free expression; to reiterate the request made at the Midyear
Meeting in Cancún, Mexico, that member newspapers of the IAPA publish
news from the independent Cuban news agencies and that when their
correspondents travel to the island they visit the independent
journalists as a sign of solidarity.”
20.
In another report, presented during the mid-year meeting of the
IAPA in Cancun, Mexico, the organization noted that “the government has
stepped up efforts to close the openings to freedom that independent
journalists have defended against all odds. Harassment, intimidation and
jail are some of the weapons most frequently used by the authorities to
suppress the right of dissident journalists to inform and express
themselves. Within this
framework, the Cuban regime has put into effect what appears to be a new
mode of controlling the press: a sort of de
facto house arrest that has been applied to more than 10 reporters
just as they were about to cover events potentially uncomfortable for the
government. (…) The opening
months of the new year have brought more repression for Cuban journalists.
The IAPA regional vice chairman for Cuba, Raúl Rivero, has described this
period as ‘one of the most critical and somber for the independent press
movement’. The regime has attacked the Cuban journalists in different
ways, abusing them physically, arresting them and confiscating their
equipment-all with the purpose of preventing them from doing their work
freely.”
The report presented to the General Assembly of the IAPA, in Santiago,
Chile, in October 2000, declared that:
The
government maintains its hard-line control of independent journalists
and press. Among noteworthy incidents were the arrest and expulsion of
foreign correspondents visiting Cuba and intensification of political
propaganda in the official media. In
August, three Swedish journalists were arrested, interrogated and
deported from the country and a French journalist was questioned when
she was about to board a plane to return home. In both cases, the
journalists had met with representatives of the independent press in
Cuba. While propaganda campaigns in the media are nothing new, it is
worth noting that the current daily barrage of TV programs, rallies,
round tables and political slogans has significantly reduced the time
for news programs.
21.
Amnesty International reported the following in its Annual Report
for the year 2000:
Dissidents,
who included journalists, political opponents and human rights defenders,
suffered severe harassment during the year. Several hundred people
remained imprisoned for political offences, some of whom were recognized
by AI as prisoners of conscience. Some trials of prisoners of conscience
took place which did not conform to international standards. (…) There
were some reports of ill-treatment. Prisoners were sometimes subjected to
cruel, inhuman or degrading treatment. (…)
Freedom of expression, association and assembly continued to be
severely limited in law and in practice. Those who attempted to organize
meetings, express views or form organizations that conflicted with
government policy were subjected to punitive measures and harassment.
These included short-term detention, interrogation, threats, intimidation,
eviction, loss of employment, restrictions on travel, house searches,
house arrests, phone bugging and physical and verbal acts of aggression
carried out by government supporters.
22.
The testimony of these organizations points to a continuation of
the pattern of human rights violations from previous years and, in
particular, in the year 2000. It
is clear that the changes made in 1998, in light of the visit of His
Holiness John Paul II to Cuba, at a time when expectations were running
high, have been progressively diluted and must be considered merely
interim measures. The
Commission must express its concern over repressive actions against
peaceful opponents, journalists and human rights activists who, year after
year, suffer harassment and discrimination for political reasons at the
hands of the Cuban authorities. Violations
of the freedoms of expression, assembly and association have been
legitimized in the Constitution and in criminal law, in a manner
completely incompatible with the American Declaration of the Rights and
Duties of Man, and institutionalized by the State in order to restrict and
prevent the exercise of those public freedoms.
The constitutional and criminal law provisions relating to such
concepts as "enemy propaganda", "contempt for
authority", "illegal association", "clandestine
printing", “dangerousness", "rebellion", "acts
against State security", "official warning",
"pre-crime and post-crime security measures", "links or
relationships to persons potentially dangerous to society",
"socialist legality", "socially dangerous", are
incompatible with the American Declaration and with the universal
principles for the protection of human rights.
The Commission will continue in its reports to insist that these
measures be withdrawn.
23.
Harassment, disciplinary measures, accusations, temporary arrests,
dismissals from work, official warnings, and prison sentences against
peaceful opponents, journalists, labor unionists and human rights
activists have sparked various reactions in the international community.
On April 18, 2000, the United Nations Human Rights Commission
issued a resolution condemning Cuba for violations of human rights.
In that resolution, the Commission, inter
alia, “reiterates its
concern about the continued repression of members of the political
opposition and about the detention of dissidents, including the members of
the Grupo de Trabajo de la Disidencia Interna”, and “calls upon
the Government of Cuba to release all the persons detained or imprisoned
for peacefully expressing their political, religious and social views and
for exercising their rights to full and equal participation in public
affairs.” It also urges
“the Government of Cuba to open a dialogue with the political
opposition” and “to afford the country full and open contact with
other countries, in order to ensure the enjoyment of all human rights for
all Cuban people by utilizing international cooperation, by allowing a
freer flow of people and ideas and by drawing on the experience and
support of other nations.”
At the beginning of this report, the Commission referred to the visit to
Cuba of the United Nations Special Rapporteur on violence against women
and her comments on positive measures taken by the Cuban State in favor of
women. The Special Rapporteur,
however, had observations for the Cuban State with respect to
discrimination against Cuban women for political reasons.
In this respect, she declared,
inter alia, that "one vulnerable group of women in Cuba are
the women whose political views are not acceptable to the Government. The refusal to accept independent political and civil
organizations that would act as watchdogs vis‑à‑vis
the Government is the main cause of this vulnerability.
The Special Rapporteur received allegations and information about
many cases of women being arbitrarily detained for political or
journalistic activism. The
Special Rapporteur entered into a dialogue with the Attorney General about
two compelling cases. The
Special Rapporteur was told that she could meet the woman detained in one
of these cases when she visited the prison, but when she arrived she was
told that the woman in question was unwell and in hospital.
The problem of arbitrary detention remains one of the most serious
violations of human rights in Cuba, even with regard to cases involving
violence against women.”
24.
For its part, the European Union has made no change in its Common
Position, which conditioned full economic cooperation with Cuba on
improvements in its respect for human rights and fundamental liberties.
This Common Position was adopted in 1996, with a request to the Cuban
State to reform its national legislation relating to civil and political
rights, including the Cuban Criminal Code and, consequently, to put an end
to political imprisonment and to cease the harassment and repression
against dissidents. But in February 2000 Cuba formally requested
integration into the multilateral grouping established under the Lomé
Convention, a trade and aid agreement linking the European Union to
African, Caribbean and Pacific States. The application sparked
considerable debate about whether Cuba's association would be consistent
with the agreement's criteria on democracy and human rights. In April,
however, the debate was mooted by Cuba's decision to withdraw its
application, because several members of the European Community had
supported the United Nations resolution condemning Cuba for human rights
violations. The Cuban government also cancelled a visit planned for late
April by senior EU officials. Yet in August, Cuba expressed renewed
interest in associating with the EU's aid pact, now called the Cotonou
Agreement.
25.
The analysis in the preceding paragraphs is confirmed by the many
complaints received by the Inter-American Commission on Human Rights
during the period covered by this report, claiming discrimination on
political grounds and systematic violations of the freedoms of expression,
association and assembly by the Cuban State.
Following is a summary of the most notable complaints.
a.
A new form of harassment and intimidation against human rights
activists and dissidents has been introduced by the Cuban State Security
department. On the morning of
January 12, 2001, State Security agents in Havana arrested León Padrón
Ascuy, and left him several hours later in an area well beyond the city.
He was seized and bundled into a car and taken to the outskirts of
the Cuban capital. On the way, the victim was subjected to psychological
pressures and interrogated about his relationship with a dissident named Héctor
Palacio Ruíz. Padrón Ascuy
lives in the city of El Vedado and works with the Center of Social Studies
directed by Héctor Palacio. After
having been subjected to all kinds of threats and verbal abuses, Padrón
Ascuy was thrown out of the car at a point far from his residence.
This procedure of the State Security forces is used to create an
atmosphere of intimidation, while leaving no record of arbitrary arrest.
b.
Maritza Lugo Fernández, 37 years old, president of the Democratic
Party, and resident of Finca Baraguá, Town of San Miguel del Padrón,
was arrested on December 15, 2000, on charges of "inciting to
crime". This dissident
is still confined to the women's prison of Manto Negro, renamed by the
Cuban State the "New Dawn” prison.
Maritza Lugo is ill with chronic gastritis, she suffers from a
fibroma, and she has lost considerable weight.
In the past she has received prison sentences of five months and as
long as two years. She has
been arbitrarily arrested more than ten times, and has been held together
with common criminals and persons with highly dangerous mental illnesses. On some occasions she was held in cells without access to
light, and with no medical attention, and subjected to psychological
torture in interrogations directed by the State Security department.
Because of her defense of human rights, Marietta has been listed as
a prisoner of conscience by Amnesty International.
This dissident is the leader of an opposition group that is seeking
peaceful means for the transition to democracy in Cuba, through resistance
and civil disobedience. She is married to Rafael Ibarra, a political prisoner who was
sentenced to 20 years for his efforts on behalf of democracy and human
rights in Cuba, and she is the mother of two young girls. It should be noted that her home, which is the headquarters
of the Democratic Party, was taken over by the police on August 25 to 27,
2000, in order to prevent political opposition workshops from being held.
In the course of this operation, Maritza Lugo was detained and
questioned for some three hours at State Security offices in Villa Marista
by Col. Soroa, who threatened her, saying that “her days were over” if
she did not turn over some videos.
c.
On December 7, 2000, the Fraternidad de Ciegos Independientes de
Cuba [Independent Blind Fraternity of Cuba] (FRACIC) reported two
cases in which officials of the Cuban Ministry of the Interior (MININT)
mistreated blind Cubans, one in the capital and the other in the city of
Avila. The first of these
persons, Luis Fuentes Alvarez, a member of FRACIC, was arrested on
December 1 as he was preparing to take part in a peaceful protest against
the congress of the pro-government National Association of the Blind (ANCI)
in Havana. Hours later the
political police released him. The
other person, Arquímedes Quintana Aguilar, a deputy delegate of FRACIC,
was intercepted by an unknown person at the bus station in Avila.
He was selling candies, which was his only way of making a living,
when he was accosted and insulted by the stranger.
The Commission has been informed that, over the last months,
Quintana Aguilar has been mistreated, insulted and threatened on various
opportunities by persons who refused to identify themselves.
Both the National Revolutionary Police and the State Security
department are organs of the Ministry of the Interior.
As well, information has been received that the Rapid Action
Brigades, dressed in civilian clothing, are used by the State to repress
peaceful opposition.
d.
Freedom of expression was also severely repressed during the period
covered by this report. The Inter-American Press Association described several cases
in its October 2000 report, including that of Luis Alberto Rivera, who
leads a small group of journalists in the Prensa Libre Oriental
news agency, in the city of Santiago de Cuba.
During August and September 2000, Rivera was the object of a series
of direct repressive acts, including arrests, interrogations, physical
searches in public places, threats of imprisonment and constant
harassment, including a search of his home and surveillance over his
movements. The pressures
against independent journalists continued, under many guises and forms,
throughout the country, but went to the extreme in Havana.
Gabriela Céspedes, the two-year-old daughter of the journalist
Dorka Céspedes, of the Havana Press Agency, was expelled from her
childcare center in September, on orders of State Security agents, who
told the center's managers to expel her because "her mother engages
in counterrevolutionary activities".
In early October 2000, Jaime Leigonier Fernández, an independent
journalist with the NotiCuba agency, was arrested and held for three hours
in the State Security department, and threatened with application of Law
88.
This 46-year-old journalist was taken from his home in Santos
Suarez at about 2:45 PM by agents of the State Security department, who
failed to inform his relatives as to where or why they were taking them.
After he was released, at around 5:00 that same day, Leigonier Fernández
said that they took him to a house in an area of Havana and threatened to
charge him under Law 88 because of his information activities.
A month before this event, he had been questioned at NotiCuba, a
fact that reinforces the view that the political police have targeted
people involved in independent journalism. It is said that these actions
are intended to prevent the group from re-forming and becoming stronger,
after many of its journalists were forced into exile.
e.
On August 9, 2000, agents of the State Security department, posing
as journalists for Cuba Press penetrated the offices of the agency and
took away boxes, files, office materials, magazines, books on journalism
and general documentation about the agency.
On September 15, 2000, the journalist Iría Rodiles, who had
founded the independent journalism movement under the pseudonym of
Ernestina Rosell, was questioned for four hours by State Security agents.
On July 13, 2000, when a group of peaceful opponents were
commemorating the sinking of the tugboat "13 de Marzo"
by placing a floral wreath in the sea, a group of independent journalists
were attacked by State Security agents.
The police interrupted the ceremony violently, and the reporters
Marilyn Lahera and José Antonio Reinier of Santiago Press, who were
covering the event, were injured. Days
earlier, on July 7, 2000, the journalist Carmelo Diaz, director of the Sindicatos
Libres [Free Labor Unions] Agency, was visited at his home in Havana
by a State Security officer who threatened to take him to prison if he
continued to give out information on labor issues.
On July 15, 2000, officers of the Ministry of the Interior took the
journalist Ricardo González Alfonso to a house on the outskirts of the
city, where they questioned him for six hours and attempted to persuade
him to become a secret agent for the Cuban State within the ranks of
alternative journalism. González publicly denounced this proposition.
On July 16 of that year, two other journalists, José Antonio
Fornaris and Osvaldo Céspedes, were detained by police as they were going
to mass at a church in downtown Havana, where dozens of opposition members
had congregated to commemorate the Jubilee in the Prisons, in accordance
with the Catholic calendar.
f.
In late January 2000, two presumed employees of the "Antonio
Masao" airport of Santiago de Cuba subjected the opposition leader Néstor
Rodríguez Lobaina to a search, and attempted to implicate him in drug
trafficking. Rodriguez Lobaina, 34 years old, is president of the
Movimiento Cubano Jóvenes por la Democracia [Young Cubans for Democracy
Movement] and the champion of a plan to reform the country's universities.
The pair, dressed as employees of the airport in Santiago de Cuba,
intercepted Rodríguez Lobaina and took him into one of the bathrooms,
where they searched him and attempted to incriminate him for carrying an
envelope containing a small quantity of white powder, which one of the
employees said was cocaine. Shortly
afterwards, a Customs officials showed up with a portable laboratory, and
after a brief analysis determined that the powder was not cocaine. Rodríguez
Lobaina, upon arrival at José Martí airport in Havana, called customs
officials and asked them to search his luggage, fearing that someone in
Santiago could have hidden some narcotic in his bags. No such substance
was found, but there were some personal belongings missing, which Rodríguez
reported. A month earlier,
Rodríguez Lobaina was taken in a car about 25 kilometers outside of
Santiago, and after what the dissident called a "simulated
execution" was left by himself in the middle of nowhere. In the past,
Rodríguez Lobaina has served two sentences, one of two years and the
other of 18 months, for posing a social danger and for displaying
disrespect to the Cuban leader.
g.
In March 2000, agents of the State Security department (DSE)
conducted a campaign of harassment against farmers in the province of
Santiago de Cuba, who had declared themselves independent and had set up a
cooperative not subject to the socialist State.
On the morning of March 4, DSE Capt. Armando Saburén and another
officer showed up in Jutinicu and threatened the president of the National
Alliance of Independent Farmers of Cuba (ANAIC), Antonio Alonso Pérez.
On the pretext of holding a "conversation" with Alonso,
the two agents urged him to withdraw from the independent cooperatives
project, arguing that "it is a sound and viable plan, but only if it
works hand-in-hand with the revolution and not with people who are trying
to run these initiatives from outside".
The president of the ANAIC refused these arguments, and rejected
the conditions put forward by the State Security agents.
In addition, Alonso told them that, through independent
cooperatives, farmers were finding real solutions to their problems.
At that point, the security agents threatened the cooperative
leader. In another incident, the day before, National Police officers
arrested the ANAIC coordinator for the eastern region, Humberto Melo
Arias, and confiscated his identity card in order to prevent him from
moving about the region. The
law prohibits the confiscation of this document.
Both Alonso and Melo declared that the authorities took this step
because of the obvious example that was being set by the prosperous
independent cooperative movement and the benefits it offered farmers of
the province.
h.
In March 2000, again, a member of the Cuban Youth Movement for
Democracy, Adel Jiménez Cintra, and his family members were threatened by
officers of the Rapid Action Brigades, who told him "if you continue
with your counterrevolutionary activities we're going to beat you
up." A few days earlier,
this dissident was summoned by the local police chief, Florisbel Acosta,
who is also the "People's Power" delegate for the district, and
he too told Jiménez that he would be beaten if he continued to oppose the
government of Fidel Castro, because "in Cuba the streets belong to
the revolutionaries". A
similar event took place in the province of Matanzas, against the Sigler-Amaya
family. On that occasion,
several members of the family were severely injured and later arrested by
officers of the State Security Department.
The attackers were never detained by the police, and there is no
record that they were ever formally charged.
On May 21, 2000, members of the Rapid Action Brigades surrounded
the church of Jesús del Monte and kept it under surveillance while
an interdenominational youth choir performed.
The choir members, whose ages were between 17 and 18 years, were
students completing their final high-school year and living in San
Francisco, U.S.A. The parishioners expressed their surprise and disgust at the
fact that they were being kept under constant surveillance by a group of
some 20 officers, who, when mass was over and the youth choir was leaving,
entered the church and mingled with the worshipers.
i.
The Human Rights Watch/Americas organization revealed in its latest
report that Victor Rolando Arroyo Carmona, a long-time government opponent
who wrote for the Union of Independent Cuban Journalists and Writers (Unión
de Periodistas y Escritores Cubanos Independientes), was sentenced on
January 25 to six months of imprisonment for "hoarding" toys.
Police had confiscated toys that he had planned to give away to poor
children in his area; they had been paid for by Cuban exiles in Miami.
Just after Arroyo's trial, the Cuban authorities freed another independent
journalist, Leonardo de Varona González, who had served a sixteen-month
sentence for "insulting" President Fidel Castro. At least three
other independent journalists remained incarcerated: Bernardo Arévalo
Padrón and Manuel Antonio González Castellanos, serving sentences of six
years and of two years and seven months, respectively, for
"insulting" Castro; and Jesús Joel Díaz Hernández, serving
four years for "dangerousness," who was reportedly held in
solitary confinement until early August. On October 16, after his release
from prison, Arroyo was reportedly beaten and insulted by State Security
agents. He and another dissident were picked up from a friend's house,
driven to the police station in Güines, beaten en route, and then driven
dozens of miles away and released after being beaten again.
j.
The same organization reported that foreign journalists, too, faced
government harassment if they attempted to work with or assist their Cuban
colleagues. Italian freelance journalist Carmen Butta was reportedly
detained by police on June 18 after meeting with independent journalists
as part of her research for a story on the Cuban independent press. In
August, three Swedish journalists were arrested in Havana by State
Security agents. They had traveled to Cuba on tourist visas but had held a
seminar on press freedom for independent journalists. The three were
deported after spending two days in detention. Earlier that same month,
French journalist Martine Jacot was detained and interrogated at the
Havana airport by six members of the Cuban security forces. She had spent
a week in Cuba interviewing independent journalists and family members of
incarcerated journalists. Jacot's equipment, including a video camera, was
seized, as were some documents.
26.
The evidence examined in this section of the report leads the
Inter-American Commission on Human Rights to conclude that the Cuban State
has not amended the repressive pattern of behavior employed in previous
years against persons or groups seeking to exercise their rights to
freedom of expression, assembly and association, without censure or
restrictions. It is also
clear that, far from promulgating laws consistent with international human
rights standards, the Cuban State has issued new rules that restrict
fundamental freedoms even further. Official
elements of the Cuban State have declared their view that any activity in
defense of human rights must be intended to destroy the political system
and promote foreign interests. These
groups are not only systematically harassed, but deprecated as
"counterrevolutionaries" and "factions".
The Commission reiterates that these groups not only have the right
to free exercise of the freedoms of expression, assembly and association,
but constitute a form of pluralism that is essential to guaranteeing the
rights recognized in the various international human rights instruments.
27.
There is considerable testimony and evidence of systematic control
over the daily life of every citizen, through the State apparatus,
intended to restrict the exercise of the right to freedom of expression,
assembly and association. Such
control is often exercised through the workplace, the schools, or the
neighborhood. According to
Article 38 of the Cuban Constitution, education has an ideological
orientation, and parents have the duty to contribute actively to the
education and comprehensive training of their children as useful citizens
prepared for life in a socialist society, while Article 39 provides that
the State must base its education and culture policy on Marxist ideals and
must encourage patriotic education and communist training for new
generations. A respected
dissident, Osvaldo Payá Sardinas, a member of the Christian Liberation
Movement, issued a declaration from Havana on how people's rights are
being stifled by the State-controlled media:
Today
the government of Cuba and its journalists speak of the war of ideas,
but what they do best is to wage war against ideas, through the use of
force, a war in which those who have other opinions are not allowed to
express them, a war that fills the air with half-truths and prevents
citizens from speaking, debating and proposing solutions to the great
problems affecting the country. A
war against the ideas of freedom. Rights
are stifled, those who defend rights are persecuted and their intentions
distorted. We dissidents
are defending all rights, for all Cubans.
The
violation and silencing of these rights is the primary cause of most of
the serious problems that Cubans are suffering.
The lack of freedom of expression and association leaves the
citizen and the various sectors of society without any means to defend
their interests, to protest, to criticize, to propose and to exercise
popular sovereignty. These
rights are crushed beneath a structure of absolute and totalitarian
power, where the majority are poor and many of those in power have
privileges. Poverty,
humiliation, the culture of fear and confiscation of our people's future
rely and persist on the basis of a regime where there are no rights.
We
demand that the mass media give publicity to human rights, so that Cubans
can discover them -- or are they afraid?
The so-called roundtables must deal with issues affecting Cuba, and
people and ideas of all kinds must participate in them.
We can debate with people of the government and its press on issues
that they are always talking about, and we may agree more or less, but we
have to speak out about what they never talk of: the silenced rights of
Cubans, solutions, about why it is that a few are now rich because of
political power, but above all about what is vital and urgent for the
people. We must speak then
about the need to "discover rights in Cuba".
And if there are any doubts, we must ask the people in a Popular
Referendum. This is what the
Varela Project asks: give the people what is theirs, what no government or
party can take from, because only God can give it: freedom.
28.
This evidence again demonstrates how the Cuban State is completely
ignoring its international obligations in relation to freedom of
expression, assembly and association, rights enshrined in Articles IV, XXI,
and XXII of the American Declaration of the Rights and Duties of Man.
The Commission considers, as well, that the systematic violations of the
rights of assembly and association prevent Cuban citizens from being free
to associate with whom they choose, without being subject to sanctions in
the exercise of their other civil, political, economic and social rights,
as a consequence of such association.
In Cuba, the State, by means of Article 54 of the Constitution,
guarantees the right to association, in theory. Nevertheless, in practice, the law
and regulations on associations allow for
systematic violation of this right, since they prevent any association
that is truly independent from gaining legal recognition.
Human Rights Watch/Americas noted in its last publication on Cuba
that “Cuba's Justice Ministry can only grant legal status to
associations willing to accept broad State interference in their
activities and arbitrary State authority to shut them down. Under the
Associations Law, members of human rights groups, professional
organizations of doctors, economists, and teachers, independent labor
unions, women's rights groups, and other independent organizations risk
prosecution simply for belonging to their group or for carrying out any
activities without authorization. (…)
Persons involved in unauthorized associations risk criminal
sanctions ranging from three months to a year, plus fines. Several other
criminal code provisions also restrict the freedom of association.”
29.
The same organization also notes that in the approval process,
“the first-level review of a potential association is carried out by
highly politicized government bodies. If aspiring groups seek to function
at the municipal or provincial level, then the local Executive Committee
of the Assembly of Popular Power reviews their application. If a group
plans work on the national level, then it must present its application to
the ‘State organ, organism, or dependency that is related to the
objectives and activities that the association will carry out. The first review must be completed in ninety days, after
which the Justice Ministry has sixty days to accept or reject the
prospective application. Government
reviewers have ample authority to reject aspiring associations for
arbitrary or politicized reasons.”
The United Nations Special Rapporteur on violence against women
confirms this, as follows:
While
the Special Rapporteur was pleased to see the interest taken by the
Government of Cuba in the economic and social rights of women, the Special
Rapporteur, along with many of her counterparts, remains concerned about
the enjoyment of civil and political liberties within Cuba.
Certain aspects of human rights are considered the legacy of
bourgeois liberal democracy. The
Cuban Government is of the view that individuals enjoy full civic and
political rights within a socialist framework.
Although members of the Government and its sympathizers are well
taken care of, there is no real opposition outside that framework.
There is limited freedom of association, and freedom of speech is
restricted to certain political parameters.
In this sense, women’s general political and civil rights are not
respected. Although there is
vibrant discussion within the officially accepted civil organizations, the
lack of organizations that are financially and ideologically independent
of government denies the possibility of a watchful, creative civil
society. The need for civil
and political rights to be extended must be emphasized, if women are to
have full participation in civil society and government.
30.
The juridical framework used by the Cuban authorities to repress
those who dare to exercise the rights to freedom of expression,
association and assembly has its origins in the Cuban Constitution itself:
Article
62.
None of the freedoms recognized to vest in citizens may be exercised
against what is established in the Constitution and the laws, nor
against the existence and aims of the socialist State, nor against the
decision of the Cuban people to build socialism and communism. Any
infraction of this principle is punishable.
31.
This last phrase of Article 62 of the Cuban Constitution--"any
infraction of this principle is punishable"--is applied by the Cuban
authorities, together with the Cuban Criminal Code, to repress any type of
peaceful opposition to the regime in power.
In effect, there are many provisions of criminal law that
specifically forbid the exercise of fundamental freedoms, while others are
of such imprecision and subjectivity that they offer broad room for
discretion on the part of State agents in repressing any dissent against
official policy. Thus, crimes
against State Security, as codified in the Cuban Criminal Code and applied
against most human rights activists, labor unionists and independent
journalists, and peaceful opponents of the regime in general, include:
"enemy propaganda", "social dangerousness",
"rebellion", "contempt of authority", "illegal
association", "defamation of heroes and martyrs",
"public disorder", "sedition", etc.
32.
The crime of enemy propaganda is codified in Article 103 of the
Criminal Code
and provides direct punishment for the exercise of the freedom of
expression and association, by establishing a penalty of 1 to 8 years for
anyone who: "insights against the social order, international
solidarity for the socialist State, by means of oral, written or any other
form of propaganda; produces, distributes or possesses propaganda of the
kind mentioned in the preceding clause".
This same Article also provides that those who "disseminate
false news or malicious predictions tending to cause alarm or discontent
among the population, or public disorder are liable to prison terms of 7
to 15 years. If, in the
exercise of the acts described in the previous sections, the mass media
are used, the penalty will be imprisonment for 7 to 15 years.
Anyone who allows the mass media to be used in the ways referred to
above is liable to imprisonment of 1 to 4 years."
Human Rights Watch has commented on this Article as follows:
The
crime of enemy propaganda clearly infringes on the universally recognized
rights to free speech, free exchange of information, and free association.
The particularly heavy sanctions for the crime work as a powerful
deterrent to the free expression of ideas. A prohibition on enemy
propaganda might be acceptable in times of war, if narrowly defined. Yet,
the broadly-defined Cuban provision does not allow for such an exception,
undercutting Cuban claims that restrictions on free speech are legitimate
in the struggle against the United States. Cuba perpetuates shocking
injustices under the guise of prosecuting counter-revolutionaries who
engage in enemy propaganda.
33.
The crime of clandestine printing [Clandestinidad
de impresos] codified in Article 210 of the Criminal Code is also used
by the Cuban authorities to violate the right to freedom of expression, in
particular with respect to independent journalists.
That Article provides that “anyone who produces, disseminates, or
directs the circulation of publications without indicating the printer or
the place where it was printed, or without following the established rules
for the identification of the author or origin, or reproduces, stores, or
transports such publications, is liable to from three months to one year
in prison or a fine of 300 ‘quotas’”.
Another crime that is used by State agents to punish nonviolent
opposition to the government is that of sedition, defined in Article 100
of the Criminal Code. It provides that “those who disrupt the socialist
order or the celebration of elections or referendums, or impede the
completion of any sentence, legal disposition or measure dictated by the
government, or by a civil or military authority in the exercise of their
respective functions, or refuse to obey them" can face from ten to
twenty years in prison, even if they do so "without relying on arms
or employing violence.”
34.
The crime of contempt for authority (desacato),
defined in Article 144 of the Criminal Code, is used by the Cuban
authorities to violate the human rights of independent labor unionists,
journalists and human rights defenders.
That provision penalizes anyone who "threatens, libels or
slanders, defames, affronts (injuria) or in any other way insults (ultraje) or offends, with the spoken word or in writing, the dignity
or decorum of an authority, public functionary, or his agents or
auxiliaries," with imprisonment of three months to one year, plus a
fine. If the target of such contempt is the leader, the penalty is even
more severe. In effect, if
the act is committed against "the President of the Council of the
State, the President of the National Assembly of Popular Power, the
members of the Council of State or the Council of Ministers, or the
Deputies of the National Assembly of the Popular Power, the sanction is
deprivation of liberty for one to three years." It has also been
noted that, “while the crime of contempt for authority existed in Cuba
prior to the 1959 revolution, the Castro government expanded the
definition to cover the broadest possible range of speech and to apply
explicitly to the government's highest authorities. More troubling still,
the Castro government also eliminated a pre-revolutionary provision that
allowed those charged with contempt to invoke the truthfulness of their
statements as a defense. Cuba
has prosecuted scores of Cubans for contempt, including several prisoners
who were tried on the basis of having criticized prison conditions and
abuses.”
In a similar vein, Article 203 of the Criminal Code punishes "anyone
who insults or with other acts shows disrespect to the Flag, the
[National] Anthem, or the National Seal," with three months to one
year of imprisonment. The Commission has also been informed that in past
years, the government used this provision against Cuba's community of
Jehovah's Witnesses, whose religion bars them from swearing allegiance to
any flag.
35.
The Inter-American Commission on Human Rights has developed a broad
doctrine on criminal provisions for protecting the honor of public
officials acting in their official capacity.
Thus for example, with respect to laws on contempt, the Commission
has declared "the use of desacato laws to protect the honor of public functionaries acting in
their official capacities unjustifiably grants a right to protection to
public officials that is not available to other members of society. This
distinction inverts the fundamental principle in a democratic system that
holds the Government subject to controls, such as public scrutiny, in
order to preclude or control abuse of its coercive powers. If we consider
that public functionaries acting in their official capacity are the
Government for all intents and purposes, then it must be the individual
and the public’s right to criticize and scrutinize the officials’
actions and attitudes in so far as they relate to public office.”
The Cuban State, by using prosecution for contempt as a means of
silencing peaceful opposition and in general any group or person proposing
alternatives to government policy, is violating the right of that
country's people to exercise their freedom of expression.
Political and public figures must be more, not less, open to public
scrutiny and criticism. Open and wide-ranging public debate, which is at
the core of a democratic society, necessarily embraces those persons who
are involved in devising and implementing public policy. Since these
persons are at the center of public debate, they knowingly expose
themselves to public scrutiny and thus must display a greater degree of
tolerance for criticism. This principle of a distinction in the level of
protection granted to public and private persons is also recognized by the
European Court of Human Rights, in the case of Lingens vs. Austria:
The
limits of acceptable criticism are … wider as regards a politician as
such than as regards a private individual. Unlike the latter, the former
inevitably and knowingly lays himself open to close scrutiny of his every
word and deed by both journalists and the public at large, and he must
consequently display a greater degree of tolerance.
36.
The Cuban State has also used the broadness and vagueness of the
crimes of insult, slander and defamation to violate the freedom of
expression systematically. Within the parameters of the State, the crime
of insult applies to someone who, "by written or spoken word, through
pictures, gestures or acts, offends the honor of another," and
results in a three-month to one-year sanction.
Slander applies to an "individual who knowingly divulges untruths
that excessively discredit an individual," with six months to two
years of imprisonment. Defamation or libel is
said to occur when a person "before a third party, accuses someone of
conduct, an act, or a characteristic that is dishonorable, and which could
damage the person's social reputation, diminish the public's opinion of
him/her, or expose him/her to the loss of the confidence necessary for
him/her to carry out his/her job, profession, or social function."
Defamation results in sanctions of three months to one year of
imprisonment.
37.
The OAS Office of the Rapporteur for Freedom of Expression referred
in its last report to the laws on slander and defamation, noting that such
laws just “are often used not so much to protect a person’s honor as
to attack –or, better said, silence- speech that is considered critical
of government. As for criminal law, the Office of the Rapporteur
recommends to derogate slander and libel laws, when the circumstances
described above are present.”
The Commission shares this view, since when due regard is paid to the
consequences of criminal sanctions and the inevitably inhibiting effect
that they have on freedom of expression, criminalization of any kind of
oral or written expression may only be applied in exceptional
circumstances, where there is an evident and direct threat of violence. In conclusion, the Commission considers that in the Cuban
case, the use of such powers to limit freedom of expression lends itself
to abuse, as a means of suppressing unpopular ideas and opinions, and
thereby restricting debate, which is essential for the effective
functioning of institutions. Laws
that penalize the expression of ideas other than those inciting to
violence are incompatible with the freedom of expression and opinion
enshrined in Article IV of the American Declaration of the Rights and
Duties of Man.
38.
Another crime used by the Cuban State to silence peaceful
opposition is that of “dangerousness” (estado peligroso), as defined in Article 72 ff of the Cuban Criminal
Code. The Commission has
referred in previous reports to the serious consequences of maintaining
and applying these rules, which are incompatible with international human
rights standards, and in particular with the American Declaration of the
Rights and Duties of Man. Application
of these rules by the Cuban State violates universal principles of
legality, presumption of innocence and judicial guarantees enshrined in
Articles XVIII and XXVI of the American Declaration, because they provide
legal justification for security measures to be taken before the
commission of a crime, and after it, which restrictions include
imprisonment in work camps and penitentiaries for a period of up to four
years.
39.
As far as the Cuban authorities are concerned, a person may be
deemed to be "dangerous" if he has "a special proclivity to
commit crimes, demonstrated by conduct that is observed to be in manifest
contradiction with the norms of socialist morality."
Article 73 (1) supplements this rule by indicating that the signs of
dangerousness include "habitual drunkenness and dipsomania, drug
addiction, and antisocial conduct."
Antisocial conduct is defined as the behavior of anyone who
"habitually breaks the rules of social comity through acts of
violence, provocation, or who violates the rights of others, or who by his
general comportment damages the rules of comity or upsets the order of the
community, or lives as a social parasite from the work of others, or
exploits or practices socially reprehensible vices.”
It has been noted that this concept of antisocial conduct has been used to
suppress the vast majority of dissidents and human rights activists in
Cuba, and if a worker is dismissed for his political ideas he is
immediately regarded by the Cuban State as a social parasite.
40.
Chapter II of the Criminal Code provides for "official
warning", which for the Cuban State means:
Anyone
who, without falling into any of the dangerous circumstances referred to
in Article 73, by his links or relationships with persons potentially
dangerous to society, to other persons and to the social, economic and
political order of the socialist State, may be considered to have a
proclivity to crime, will be issued a warning by the competent police
authority, as a preventive measure against engaging in socially dangerous
or criminal activities. Such
warning shall be given in all cases through an official record expressly
stating that reasons for which it is being issued, and the response of the
person so warned, which must be signed by that person and by the issuer.
41.
If a person is deemed to fall under any of the types of
dangerousness cited above, so-called security measures may be taken
against him, and these may be either "pre-criminal" or
"post-criminal”. According
to the Criminal Code, "security measures may be decreed to prevent
the commission of crimes or by reason of their commission."
In the case of pre-crime security measures, Article 78 provides
that a person declared to be dangerous may be subjected to therapeutic
measures, re-education or surveillance by the Revolutionary National
Police. One therapeutic
measure, according to Article 79, consists of internment in a social,
psychiatric or detoxification Institute.
Article 80 provides that re-education measures are to be applied to
antisocial individuals, consisting of internment in a specialized work or
study institute, and delivery to a labor collective for control and
guidance of their dangerous conduct.
The term of these measures ranges from one year to four years.
In addition, the Revolutionary National Police, according to
Article 81, have a surveillance system consisting of "guidance and
control over the conduct of a dangerous person."
This measure may also last for a period of one to four years.
Article 82 provides that the security measures may include the
imprisonment of a person "depending on the degree of danger he
presents and the possibilities of his re-education."
42.
With respect to the procedure to be followed, the Cuban Criminal
Code grants extraordinary powers to the courts, whereby "at any time
during execution of a pre-criminal security measure, it may change the
classification or duration of that measure, or suspend it, at the request
of the body responsible for its execution, or ex officio.
In the latter case, the court will request a report from that
executing body". The
court must also report "to the prevention organs of the National
Revolutionary Police on the pre-criminal security measures ordered, which
are to be fulfilled at liberty, for purposes of their execution".
Decree No. 128, issued by the State in 1991, provides that a declaration
of "pre-criminal dangerousness" must be decided in summary
manner. According to that
decree, the National Revolutionary Police prepares a file with the report
of the responsible agent and the testimony of neighbors demonstrating
"dangerous conduct", and submits it to the municipal prosecutor,
who will decide, within five working days, whether further investigation
is necessary. If the court considers the file complete, it will set a date
for a hearing where the parties will appear.
Twenty-four hours after that hearing, the Municipal Court must
issue its ruling.
46.
These repressive criminal provisions, taken together, have imposed
a very high human cost on Cuba. For
years, the Cuban government has taken advantage of the subjectivity,
vagueness and ambiguity of these Criminal Code rules to silence any
attempt of peaceful opposition members to exercise their rights to freedom
of expression, association and assembly.
Cuba has refused to reform this legislation, invoking reasons of
national security, which the Commission finds unacceptable.
The Johannesburg Principles of the United Nations on National
Security, Freedom of Expression and Access to Information have established
that it is illegitimate to invoke the interests of State Security “to
protect a government from embarrassment or exposure of wrongdoing, or to
conceal information about the functioning of its public institutions, or
to entrench a particular ideology, or to suppress industrial unrest.”
47.
These principles also establish that certain types of expression
must be protected, including for example criticisms or insults directed at
the State and its symbols, the defense of non-violent change of government
or a governing party, and the communication of information on human
rights. The Inter-American
Commission on Human Rights considers that the existence and enforcement of
the criminal provisions examined in this report violate the above-sighted
principles, because they place severe restrictions on the fundamental
rights of all persons subject to the jurisdiction of the Cuban State.
B.
THE RIGHT TO JUSTICE AND TO DUE PROCESS
48.
The Inter-American Commission on Human Rights has examined the
status of the right to justice and due process in Cuba, in previous
reports. Recalling that,
during the period covered by this report, the Cuban State has made no
changes that would allow, either in practice or in law, the unrestricted
validity of judicial guarantees, the Commission reiterates to the State
the need to make substantial reforms in its juridical system, to render it
compatible with the principles enshrined in the American Declaration of
the Rights and Duties of Man. The
right to justice and to due process is enshrined in Articles XVIII and
XXVI of the American Declaration. Article
XVIII provides that "every person may resort to the courts to ensure
respect for his legal rights. There should likewise be available to him a
simple, brief procedure whereby the courts will protect him from acts of
authority that, to his prejudice, violate any fundamental constitutional
rights.” Article XXVI declares that “every accused person is presumed
to be innocent until proved guilty. 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.”
49.
During the period covered by this report, several international
human rights organizations have declared that Cuba does not guarantee its
citizens, and especially those charged with political crimes, that they
will have a fair trial, with due guarantees, before an independent and
impartial court. Thus, for
example, the United Nations Special Rapporteur on Violence against Women,
who had the opportunity to make a personal inspection of the prevailing
situation in Cuba, has reported as follows:
The
Special Rapporteur is also concerned that the Constitution of the
Republic of Cuba establishes a direct line of authority and
subordination to the National Assembly and the Council of State, which
can have serious implications for the independence and impartiality of
the courts, potentially affecting the right to a fair trial.
In addition, the Special Rapporteur has received reports of
arbitrary arrests, prolonged pre-trial detention and restrictions on the
rights to adequate defense. Similarly, the Special Rapporteur is
concerned that the Constitution provides that the National Assembly of
People’s Power has the authority to select and to dismiss the
People’s Supreme Court, the Attorney General and the Deputy Attorneys
General (Articles 75, 126 and 129).
In accordance with Article 128 of the Constitution, the Office of
the Attorney-General is subordinate to the National Assembly and the
Council of State, and Article 130 orders the Attorney General to
render account of his work to the National Assembly.
All these provisions further impede the impartiality and
independence of the Cuban judiciary, thereby restricting the fulfillment
of all human rights and fundamental freedoms of Cuban women and men.
50.
In this context, Amnesty International has also reported that
“some trials of prisoners of conscience took place which did not conform
to international standards”
and Human Rights Watch/Americas has noted that “the
government-controlled courts undermined the right to a fair trial by
restricting the right to a defense, and frequently failed to observe the
few due process rights available to defendants under the law.”
The Inter-American Commission on Human Rights was also informed that ex
officio defense attorneys do not see their primary objective as defending
the interests of their clients, since they are subordinate to the
interests of the socialist system. In
this respect, many persons who were convicted of political crimes declared
that they never met their defense lawyer until the time of the trial,
since the defense consisted in presenting conventional mitigating
circumstances, but not in demonstrating the innocence of the accused, who
always knows that he is going to be convicted.
In many cases, no copy of the court ruling is sent to the defendant
or to his family, and the prosecutor’s charges are often not provided
either, which means that the accused, when standing trial, has only the
oral version given by the instructing prosecutor--which in the Cuban
system is the National Revolutionary Police--as to the legal
classification of the alleged crimes.
51.
The preceding analysis finds its legal basis in the Cuban
Constitution, which does not provide for a separation of powers such as
would guarantee independence in the administration of justice. The
Commission recognizes that the mere constitutional stipulation of the
independence of the judicial organs with respect to the political power is
a necessary but not sufficient condition to ensure the proper
administration of justice. Article 121 of the Cuban Constitution provides
that:
The
courts constitute a system
of State organs structured with functional independence with respect to
any other, and subordinated hierarchically to the National Assembly of People's Power
and to the Council of State [emphasis added].
52.
Article 128 of the Constitution provides that "the Attorney
General receives direct instructions from the Council of State."
It is clear that the subordination of the courts of justice to the
National Assembly of People's' Power and, in particular, to the Council of
State, establishes a relation of dependency with respect to the Executive
Branch. This relationship of dependency is reinforced by the power of
the Council of State "to give a general and binding interpretation,
where necessary, to existing legislation".
In addition, the Constitution sets broad margins within which that
interpretation may be rendered, in Article 62, analyzed above.
53.
As has been indicated, the courts of justice in Cuba are
subordinated to the Council of State, and Article 74 of the Constitution
provides: "The President of the Council of State is the Head of State
and Head of Government." In other words, the head of state of Cuba
has concentrated, in himself, all the state organs. Thus, the Council of
State is the political organ that should render the official
interpretation of how such vague terms as "the existence and aims of
the socialist state" and "the decision of the Cuban people to
build socialism and communism" are to be understood. Subordinated to
that interpretation are all the "freedoms citizens are recognized to
have"; and it is the administration of justice that is charged with
applying the interpretations to particular cases. This ideological and
political bias is reinforced by the functions that the Constitution grants
to the courts and other State organs:
All
the state organs,
their leaders, officers, and employees act within the bounds of their
respective competencies and have
the obligation to observe socialist legality strictly and to ensure
its respect in the life of the entire society [emphasis added].
continued...
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United Nations, Economic and Social Council, Integration of the Human Rights
of Women and the Gender Perspective, Violence Against Women, Report of the Special Rapporteur on Violence against Women, its Causes
and Consequences, Ms. Radhika
Coomaraswamy, submitted in accordance with Commission on Human Rights
resolution 1997/44. Report on the Mission to Cuba. Human Rights Commission,
56th session, Agenda item 12(a), E/CN.4/2000/68/Add.2, February
8, 2000, para. 6.
While the inclusion of crimes against State security and rebellion in the
Criminal Code is not, in itself, incompatible with the American Declaration,
the application of those concepts by the Cuban State against human rights
activists, independent labor leaders and peaceful opponents of the regime
violates that international instrument.
As Human Rights Watch/Americas has observed, “Cuba prosecutes
crimes against State security to repress nonviolent government opponents.
While the crime of enemy propaganda explicitly violates the fundamental
freedoms of expression and association, other State security crimes include
objectionable references to preserving the socialist system and are defined
in elastic terms that frequently have been used to punish the exercise of
fundamental rights. (…) Under the law, Cuban authorities may conduct
warrantless arrests of any person accused of a State security crime, must
hold the accused in pretrial detention, and must try the person in a closed
trial in a special State security tribunal. In order to increase the
likelihood that officials will take action against the crimes of rebellion
or sedition, which the Criminal Code defines to include nonviolent acts,
officials failing to do so risk three-to eight-year prison terms for
‘violation of the duty to resist’ (infracción
de los deberes de resistencia)”. Human Rights Watch, Cuba’s
Repressive Machinery, Human Rights, Forty Years after the Revolution, 1999,
page 43.
American Declaration of the Rights and Duties of Man: Article IV.
Every person has the right to freedom of investigation, of opinion, and of
the expression and dissemination of ideas, by any medium whatsoever; Article
XXI. Every person has the right to assemble peaceably with others in a
formal public meeting or an informal gathering, in connection with matters
of common interest of any nature; Article XXII. Every person has the
right to associate with others to promote, exercise and protect his
legitimate interests of a political, economic, religious, social, cultural,
professional, labor union or other nature.
In order to demonstrate the type of conduct that can be punished under the
crime of Enemy Propaganda, the Commission considers it useful to reproduce
the conclusions reached by the Cuban Public Prosecutor's Office in the case
brought against Sebastián Arcos Bergnes, leader of the Cuban Committee for
Human Rights, in October 1992: “That Sebastián Arcos Bergnes, in defiance
of law, has sent information to broadcast stations outside the country in
order to assist with the campaign to discredit Cuba. That, in violation of
the disciplinary rules of the Combinado del Este Prison, he sent handwritten
notes to counterrevolutionary prisoners to help incite animosity toward the
Cuban social system. That, during an inspection conducted at the Combinado
del Este Prison on December 11, 1991, fragments of paper with ink
handwriting were taken from the inmate, and in one of them the accused,
Sebastián Arcos Bergnes, said 'we continually propose democratic changes to
the regime and work towards fostering the national consciousness necessary
for achieving such changes through peaceful but firm civil resistance on the
part of the population. At present this is our main educational task...then
to demand lunch, transportation, tourism; then amnesty, freedom of speech
and of association, and finally democracy.' That is, to encourage, through
systematic propaganda, activities contrary to our social system."
An international team of legal scholars, diplomats, and UN rights
specialists, meeting at a 1995 conference in Johannesburg, South Africa,
drafted a set of principles that provide further guidance regarding
permissible justifications for restricting rights. In particular, the
Johannesburg Principles on National Security, Freedom of Expression and
Access to Information distinguish between legitimate and illegitimate
invocations of national security interests. The full text of those
principles can be found in The New World Order and Human Rights in the Post-Cold War Era: National
Security vs. Human Security, published by the International Conference
on National Security Law in Asia-Pacific, November 1995 (Korea Human Rights
Network, 1996), in Human Rights Watch/Americas, Cuba's Repressive Machinery, op.cit., pages 40 and 41.
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