C.          The right to a fair trial and the right to due process of law

          30.          The rights to a fair trial and to due process of law as they are observed in Cuba are also troubling for the Commission.  During the period covered by this report, the State failed to introduce any changes that would make unqualified respect for judicial guarantees a reality in practice and in law.  The juridical framework for these basic rights, which the Cuban people must be able to exercise without restriction or limitation of any kind- are recognized in Articles XVIII and XXVI of the American Declaration.  Article XVIII states that “[e]very 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 provides that “[e]very 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.”

          31.          The Commission has already pointed out that “[d]ue process is defined by a set of provisions set forth in positive law whose purpose is to guarantee the justice, equity, and rectitude of the judicial proceedings in which an individual may be involved.  This right, in addition to constituting a guarantee as to the rectitude and correctness of any judicial proceeding in which the rights or obligations of a person are under consideration–or in which an effort is made to determine one’s possible criminal liability–is also an instrumental right, insofar as it can guarantee the exercise and enjoyment of other rights of the person.  In effect, an unjust or arbitrary judicial decision–in addition to constituting a violation, in itself, of the human right–may constitute a workable instrument for justifying, legitimating, or covering up the prior deprivation of other human rights such as the rights to life, personal liberty, the freedom of expression, assembly, and association, etc.  In addition, even when such violations have not been committed directly by the judiciary, it can become an instrument thereof by making decisions which, due to the failure to observe the principles and norms of regular process, are unjust and are the seal for achieving impunity for such abuses of power.” [23]

          32.          The Commission has spoken at length about the serious weaknesses in the Cuban judicial system.  Nevertheless, it believes this is a fitting opportunity to cite from the Report of the United Nations Special Rapporteur on Violence against Women.  When examining this problem, the Rapporteur notes that she, too, is concerned "that the Constitution of the Republic of Cuba establishes a direct line of authority and subordinance 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 defence. 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 Attorney-Generals (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.” [24]

          33.          An example of the established system is the court case being prosecuted since March 4, 2002, against Juan Carlos González Leiva, President of the Cuban Human Rights Foundation. [25]   Leiva–who is blind-is being prosecuted for the alleged crimes of public disturbance, speech deemed offensive to a public official or contempt of authority [desacato], resistance and disobedience, all for having protested in public at the hospital when he saw the injuries that State security agents had inflicted upon journalist Jesús Álvarez Castillo, a correspondent with Cuba Press.  In the indictment of August 14, 2002, Lic. Iliana Fajardo Díaz is seeking a 6-year prison sentence for González Leiva because he, along with other activists, “began to shout for medical assistance for their colleague, while yelling counterrevolutionary slogans and comments offensive to the person of the Commander in Chief, such as ‘Down with Fidel! Down with the Dictatorship!, ‘Fidel, the Henchman, the Murderer!’ and the like, shouting these expressions over and over again (…).” [26]   Not one charge appears in the indictment that alleges that the accused committed some violent act.

          34.          The Commission observes two problems in the above-cited case.  The first is the length of time this person was held under detention without ever being brought before a judge.  Article XXV of the American Declaration states that “”[e]very 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.”  González Leiva has been in pretrial detention for nine months.  The Commission considers that one condition that must be met for a proceeding to be fair and just has to do with its speed.  One of the conditions sine qua non is that it must be swift.  Slow justice, or justice unduly delayed, is –in itself- an injustice.  What good does it do for either plaintiff or respondent in a civil case, or the accuser and the accused in a criminal case to win the argument or recognition of a right if the mere passage of time has caused the party irreparable harm, or if his/her involvement in a lengthy proceeding has been prejudicial to that person’s interests or has even damaged his/her reputation and the perception of that person within society.  Most binding human rights instruments state that in the determination of one’s rights or civil obligations or in the substantiation of a criminal charge made against that person, he/she shall have the right to be judged within a reasonable period of time.

          35.          The second problem that the Commission observes in the González Leiva case are the crimes with which he is charged.   In previous reports, the Commission has stated that  “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.” [27]   Human Rights Watch wrote the following in this regard:  “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 it 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.” [28]   

          36.          The Commission has written extensively on criminal laws intended to protect the honor of public officials who operate behind the shield of public office.  Apropos the desacato laws, the Commission has stated that  “Application of contempt laws to protect the honor of public officials acting in an official capacity unjustifiably grants them the right to a protection that is not offered to other members of society. This distinction is in direct conflict with the fundamental principle of a democratic system, according to which the government is the object of controls, including the scrutiny of its citizens, so as to prevent or control any abuse of its coercive power. If public officials acting in an official capacity are regarded for all effects and purposes as the government, it is then precisely the right of individuals and the citizenry to criticize and scrutinize the action and attitudes of those officials in matters related to their public office." [29]   Political figures and public officials must be more exposed –not less exposed- to public scrutiny and criticism.  Open debate of a wide range of issues is essential to a democratic society and must necessarily include persons who are instrumental in formulating and applying public policy.  Because these figures are at the center of the public debate and knowingly expose themselves to public scrutiny, they must be more tolerant of criticism.  As the European Court of Human Rights has held, “[t]he limits of acceptable criticism are accordingly 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.” [30]

          37.          During the period covered by this report, the Commission received reports on two other cases where the accused are being held in pretrial detention without being brought to trial within a reasonable period of time.  The first case is that of Leonardo Miguel Bruzón Ávila, President of the Movimiento de Derechos Humanos 24 de Febrero, who has been held in Quivicán prison since February 22, 2002. [31]   Bruzón Ávila was detained that day along with another 20 human rights activists, in a repressive crackdown that took place in Havana.  The second case is that of Rolando Oliva Villegas, 29, who has been held at the Valle Grande jail since May 2001.  Oliva Villegas is being held in custody–again, without benefit of trial- on charges of car theft.  According to information received, the accused presumably stole a car that Chief of State Fidel Castro had provided to the Second Secretary of the Cuban Communist Party (PCC). [32]   Again the Commission must emphasize that in the substantiation of a criminal charge made against a person–whether the crime be political or common- that person has the right to be tried within a reasonable period of time.  The European Court of Human Rights has held that the judges responsible for a particular case should have given special consideration to the possible serious consequences for the applicants of any further delay and, on that basis, have handled the case with special diligence. [33]

          38.          The Commission has also learned that the right of defense continues to be subject to severe restrictions and limitations in Cuba, especially when the accused are charged with political crimes.  In the case against journalist Carlos Alberto Domínguez, with the Cuba-Verdad news agency, Valle Grande prison officials do not allow him to meet with his defense counsel, Lic. Zorribe.

          39.          Another egregious violation of the right to self-defense is the case being prosecuted against human rights activist Leonardo Bruzón Ávila.  By a decision of 4 April 2002, the People’s Court for Havana Province denied the petition of habeas corpus filed on behalf of Bruzón Ávila.  Bruzón’s attorney, Lic. Jorge Betancourt Ortega, filed a petition to the effect that he had thus far not been permitted access to his client’s pretrial case file.  The attorney told the media that he had no knowledge of the conditions of or reasons for Mr. Bruzón’s detention in Quivicán prison in Havana province, and had not seen the order for provisional imprisonment.  The attorney stated that:  “I have visited the Office of the Provincial Criminal Prosecutor four times and have not been allowed to view the statements in the case file.  They have given me a variety of reasons.  All this prevents me from mounting an adequate defense… I have not a single piece of paper relating to my client’s imprisonment.” [34]

          40.          Compounding all this is the vague language of the Cuban Criminal Procedure Code, which allows the police and the other “authorities”–without specifying which authorities—to make warrantless arrests of anyone suspected of a crime against the security of the State or of any act that “has caused alarm or has been committed frequently within the municipal territory.”  While the first hypothetical grounds for detention–i.e., being suspected of political crimes-poses a threat to dissidents, the language of the second hypothetical grounds for detention is so ambiguous that it allows police to lawfully detain people without an arrest warrant and “with minimal justification”. [35]

41.          The code also allows the police and the authorities to hold someone for a week before a court reviews the lawfulness of the detention.  The law gives the Prosecutor another 72 hours to decide whether to send the accused to prison, release him or impose restrictions less severe than imprisonment.  The court will only review the lawfulness of a detention if the prosecutor decides to jail or impose other restrictions on the accused. [36]   Again, Cuba’s own Constitution is instructive here. Article 128 states “The Attorney General of the Republic receives direct instructions from the Council of State,” whose president is the Cuban Chief of State. 

          42.          Based on the narrative contained in this section of the report, the Commission believes that, relying on vague and subjective legal provisions, Cuban courts are still inclined to act and adjudge by ideological and political criteria that are contrary to proper judicial procedure.  The main limitation is embedded in the Constitution itself, which states that none of the freedoms recognized therein can be exercised “against the existence and purposes of the Socialist State.”  This provision is important because it regulates, at the highest level of the legal system, the exercise of the Cuban citizenry’s constitutionally recognized rights and freedoms in their relations with the organs of State power.  Constitutionally recognized limitations on rights and freedoms based on criteria as subjective and vague as, for example, “the decision of the Cuban people to build socialism and communism” are contrary to human rights.  Clearly the enormous discretion that these criteria allow eliminates any possibility that one might have of effectively defending oneself vis-à-vis the authorities.  This paves the way for the arbitrary exercise of power over the Cuban people.

          III.          ECONOMIC, SOCIAL AND CULTURAL RIGHTS

43.          The preamble to the resolution that the Ninth International Conference of American States adopted in Bogota, Colombia in 1948, introducing the American Declaration of the Rights and Duties of Man, states, inter alia, that the American peoples "have as their principal aim the protection of the essential rights of man and the creation of circumstances that will permit him to achieve spiritual and material progress …."  The American Declaration thus upholds not just civil and political rights, but also economic, social and cultural rights.

44.          The Commission has observed the following on the subject of economic and social rights: “Certainly the requirements of the human right to a dignified life go beyond the equally fundamental contents of the right to life (understood in its strictest sense), the right to humane treatment, the right to personal liberty, the rights related to the system of representative democracy, and all other civil and political rights.” [37]

45.          The Commission also pointed out that in its preamble, the Additional Protocol to the American Convention on Economic, Social and Cultural Rights, known as the "Protocol of San Salvador," expressly acknowledges "the close relationship that exists between economic, social and cultural rights, and civil and political rights, in that the different categories of rights constitute an indivisible whole based on the recognition of the dignity of the human person, for which reason both require permanent protection and promotion if they are to be fully realized, and the violation of some rights in favor of the realization of others can never be justified.”

46.          With the passage of time, the indivisibility and interdependence of economic, social and cultural rights and civil and political rights has finally been recognized.  Given that indivisibility, the Commission once again underscores the fact that as a general rule, where economic, social and cultural rights are being violated, so too are civil and political rights.  An individual who does not receive proper access to education may have less chance of participating in political life or his right to freedom of expression may be inhibited.  Someone with little access to the health system or access to substandard health care may have his/her right to life impaired on various levels or denied altogether.  This situation can materialize by varying degrees, depending upon the severity of the violation of economic, social and cultural rights.  As a rule, however, the more limited the enjoyment of economic, social and cultural rights, the more limited will be the enjoyment of civil and political rights as well.  A situation constituting egregious violations of economic, social and cultural rights will also involve egregious violations of civil and political rights.  This is what happens in situations of extreme poverty. 

47.          In that context, since 1989 Cuba has been in the grip of a profound economic crisis that has struck virtually every aspect of life in that country.  Between 1989 and 1993, Cuba's gross domestic product (GDP) was down 35% and exports were down 75%.  The demise of the Soviet Union and the economic embargo were some of the factors contributing to the economic crisis.  In response, the State adopted a serious of adjustments and restructuring measures intended to slow the decline and get the economy going again.  In 1994, the downward trend in the economy was reversed when the GDP registered a modest gain (0.7%); in 1995, the GDP was up 2.5%, and in 1996, growth was 7.8%.  In 1996, per capita GDP increased 7.5%, people's average salary and wages increased, and income distribution improved.  Then, too, the budgetary deficit declined to 2.4% of the GDP, total exports rose 33%, job productivity was up 8.5%, investments grew by 54%, and personal and government consumption rose 4% and 2%, respectively.  Although the view is that the downward trend has been reversed and that the Cuban economy is growing, it is straining under a difficult burden created by the unfavorable terms that accompany its external borrowings, which carry high short-term interest rates. [38]

          48.          On the political front, measures are underway to further decentralize the State and economic sectors; to promote and develop public participation in decision-making at all levels, and to strengthen the State's legislative body, the Cuban Parliament. The reports provided indicate that the main objectives of Cuba's social policy are to ensure:

-        a basic diet;

-        every citizen's right to health and education;  

-        an adequate income for those who retire or those who need economic support from society;

-        sources of employment; worker protection and rest;

-        comfortable housing;

-        a society that is more and more just and united. [39]

49.          The Commission was also told that Cuba uses the following means to achieve the aforementioned objectives:

-        Distributing some 55% of the caloric content of the diet using methods like rationing at low prices; a people's food network for low-income people; food either free or at very low prices at health centers, schools, and the like.

-        Universal, no-cost health and education services, including the university education; in the case of health care, the more complicated and costly medical treatments.  Earmarking the financial and human resources needed to ensure quality service.

-        Universal coverage of social security and social assistance.  Articles 47 and 48 of the Constitution provide that no citizen shall be left unprotected.

-        Promoting economic development as the principal source of new jobs; job programs in less developed areas and for the disabled.  Gradual reorganization of employment by redeployment of skills, either by relocating excess workers or offering them guaranteed incomes.

-       Lowering rents; purchase of housing by making a payment equal to what the rent would be; State-run programs to build housing and self-help programs; low-cost housing alternatives; repair of housing with State support. [40]

50.          It should be added that in Cuba, social progress is a broad, multi-faceted concept.  The development and ample access to culture, sports, and workers' rest and recreation are perceived as vital to social progress.  The Commission also received reports that another goal of social policy in Cuba is to guarantee equality of opportunity and performance equivalency.  Because social structures are slow to change, the patterns tend to repeat themselves.  Therefore, the social policy implemented has tailored specific and separate approaches for given segments of the population, such as low-income families, women, children, single mothers, the elderly, the disabled, relatively less developed territories and persons who suffered discrimination in the past.  The priority assigned to social development and the pro-active approach to applied social policy enabled Cuban society to eliminate social and territorial disparities, to eradicate illiteracy, helplessness and poverty on a mass scale, and to achieve high social development indicators in such essential areas as health and education, all within a very short period of time in historical terms. [41]

51.          The Commission believes that the following social indicators on Cuba, which the Pan American Health Organization (PAHO) has updated to December 2001, might be useful and instructive: [42]

DEMOGRAPHIC INDICATORS  

52.          On the occasion of Latin American Medicine Day, the Pan American Health Organization (PAHO) publicly recognized the Cuban State's "significant advances and results achieved in public health and in the application of the primary care strategy, and its joint development of the Comprehensive Health Plan.” [68]   In a recent report, PAHO stated that Cuba had set a number of public health objectives back in 1991.  PAHO noted that "[t]he strategies include reorientation of the health system toward primary care and the family doctor and nurse program, which is considered the pillar of the system; revitalization of hospital care; revitalization of high-technology programs and research institutions; development of a program on natural and traditional medicine and remedies; and care with an emphasis on system objectives, such as dentistry, optical services, and health transport. The priority programs are those on maternal and child health, chronic noncommunicable diseases, communicable diseases, and care of the elderly.” [69]

53.          The progress Cuba has made in public health is a positive development.  The information reported here indicates that health services in the form of medical care are a universal right in Cuba and are provided free of charge by the State.  Numerous positive measures have been taken to extend this right to all sectors of society.  Considerable progress has been made toward reducing the rate of still births and infant mortality and to promote children's healthy growth and development.  The prevention, treatment and control of epidemic diseases have improved over the years, particularly in terms of mortality, although the morbidity rates have increased for some diseases and sicknesses.  The Cuban Constitution is the cornerstone of the progress made in the medical field, as it guarantees -for example- that "no one who is sick shall lack for medical attention." [70]    Article 43, for its part, stipulates that  “the State enshrines the right secured by the Revolution for all citizens, without distinctions as to race, color of skin, sex, religious beliefs, national origin or any other consideration contrary to human dignity… to receive care in all health institutions."  Finally, Article 50 of the Constitution provides:

Everyone has the right to care and protection for his health. The State guarantees this right:  

•        Through the provision of free medical and hospital care, via the network of rural medical service facilities, polyclinics, hospitals, health centers and specialized treatment;

•        Through the offer of free dental care;

•        Through the development of extension services for health and health education, regular medical examinations, general vaccination and other measures to prevent disease. The entire population cooperates in these plans and activities through mass-based and social organizations.

          54.          The right to work is another economic and social right that figures among the Commission's chief priorities.  It is recognized in Article XIV of the American Declaration, which reads as follows:

Article XIV. Every person has the right to work, under proper conditions, and to follow his vocation freely, insofar as existing conditions of employment permit.

 

Every person who works has the right to receive such remuneration as will, in proportion to his capacity and skill, assure him a standard of living suitable for himself and for his family.

55.          The American Declaration clearly specifies the conditions associated with the exercise of the right to work, namely: that the right to work must be exercised under proper conditions, and that every person is free to follow his/her vocation and entitled to adequate remuneration.

56.          The right to work is recognized in Article 45 of the Cuban Constitution:

In a socialist society, work is a right, a duty and a source of honor for every citizen. Work is remunerated in accordance with its quality and quantity; it is provided in light of the demands of the economy and of society, the choice of the worker and his skills and qualifications; it is guaranteed by the socialist economic system, which fosters economic and social development, without crises, and which has eliminated unemployment and has forever abolished seasonal "downtime". Unpaid volunteer work is also recognized, performed for the benefit of all society, in industrial, farming, technical, artistic and service activities, as helping to shape the communist consciousness of our people. Every worker has the duty to fulfill the tasks associated with his job.

57.          Under Article 46 of the Constitution, every worker has  “"the right to rest, which is guaranteed by a workday of eight hours, weekly time off and paid annual vacations. The State encourages the development of vacation facilities and plans." Under that same article a social security system is guaranteed, for "the proper protection of all workers incapacitated by reason of age, disability or illness. If the worker dies, the State guarantees similar protection for his family." [71]    The Cuban State also "protects, through social assistance, elderly persons without support or resources, and any person unfit for work who has no relatives in a position to help him.” [72] Article 49 of Constitution "guarantees the right to protection, safety and hygiene in the workplace, through the adoption of proper measures to prevent work-related accidents and illnesses. Anyone who suffers an accident at work or contracts a work-related illness has the right to medical attention and an allowance or pension in the event of temporary or permanent work disability."

58.          Articles 42, 43 and 44 of the Cuban Constitution prohibit gender- or race-related job discrimination.  To guarantee this principle, it encourages women to join the workforce by providing such facilities as day-care centers and boarding schools and by granting maternity leave (before and after birth), care for the elderly, and working schedules compatible with maternal duties. "The State will strive to create the conditions conducive to realization of the principle of equality."  

59.          The Commission observes that there are legal, economic and social mechanisms in place to enable one to exercise one's right to work.  Nevertheless, the Commission heard testimony and received complaints to the effect that job discrimination is practiced in a variety of ways, for ideological and other related reasons.  The Commission has been told that the largest sector within the ranks of the unemployed are individuals who have expressed political differences with the regime.  Relatives of political prisoners also suffer employment-related discrimination, as do former political prisoners once released.  The Commission has also received complaints to the effect that if émigrés abroad are antagonistic to the Cuban political system, their relatives in Cuba experience employment-related discrimination. In an economy in which the State is the sole employer, this kind of tool is an easy one to use.

60.          Human Rights Watch has observed that “[t]he Cuban government's virtual monopoly on jobs allows it to exercise tight control over the nation's workforce. Cuban authorities maintain labor files (expedientes laborales), which record any individual's politically suspect behavior.  Often, the government's first move against potential dissenters is to fire them from their job. Most of Cuba's prominent dissidents lost their jobs as they became more involved in independent organizations or rejoined society after prison terms imposed for criticizing the government. Since jobs in the non-state-controlled sector are few, and rarely include housing, job loss often spells financial disaster for workers and their families. Dissidents who cannot count on remittances from abroad have a particularly difficult time and risk further problems with the government if economic necessity pushes them to violate regulations on individual employment. Cuba only allows limited opportunities for self-employment, such as selling produce, driving taxis, and running small restaurants, which are heavily regulated." [73]

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