...continuation (Chapter IV)

CUBA

54.             Since publication of the 2003 Annual Report, the Inter-American Commission on Human Rights has continued to observe, evaluate, and receive information on the human rights situation in Cuba, a country that has also been under scrutiny by other human rights monitoring entities.

55.             The Commission’s competence to observe the human rights situation in Cuba stems from the terms of the OAS Charter, its Statute, and Rules of Procedure.  As set forth in the Charter, all member States pledge to respect the fundamental rights of persons which, in the case of States not party to the Convention, are those set forth in the American Declaration, which constitutes a source of international obligations.[57] The Commission’s Statute entrusts it to pay particular attention to the task of observing the human rights recognized in Articles 1 (right to life, liberty and personal security and integrity), XVIII (right to a fair trial) and XXVI (right to due process) of the Declaration in exercising its jurisdiction over countries not party to the Convention.[58]

56.             Cuba has been a State party to the Organization of American States (hereinafter the “OAS”) since July 16, 1952, the date it deposited its ratification instrument of the OAS Charter. The Commission has maintained that the Cuban State “is juridically responsible to the IACHR in matters that concern human rights since it is party to the first international instruments established in the American hemisphere to protect human rights,” and because Resolution VI of the Eighth Meeting of Consultation[59] ”excluded the present government of Cuba, not the State, from participation in the Inter-American system”.[60]  In this regard, the IACHR has stated that

[...] its consistent position has been that when it excluded the Cuban Government from the inter-American system, it was not the intention of the Organization of American States to leave the Cuban people without protection. That Government’s exclusion from the regional system in no way means that it is not longer bound by its international human rights obligations.

57.             In exercise of its competence, the IACHR decided to include in this chapter certain considerations about the human rights situation in Cuba based on the lack of periodical, fair and free elections based on the universal and secret balloting as an expression of people’s sovereignty[61], relating to the lack of free elections in keeping with internationally accepted standards.  The lack of free elections contravenes the right to political participation enshrined in Article XX of the American Declaration of the Rights and Duties of Man, which provides that “[e]very person having legal capacity is entitled to participate in the government of his country, directly or through his representatives, and to take part in popular elections, which shall be by secret ballot, and shall be honest, periodic, and free.”  Likewise, Article 3 of the Democratic Charter signed in Lima, Peru, on September 11, 2001, defines the elements of a democratic system of government as follows:

Essential elements of representative democracy include, inter alia, respect for human rights and fundamental freedoms, access to and the exercise of power in accordance with the rule of law, the holding of periodic, free, and fair elections based on secret balloting and universal suffrage as an expression of the sovereignty of the people, the pluralistic system of political parties and organizations, and the separation of powers and independence of branches of government.

58.             This report follows up on relevant events that occurred in Cuba in 2004 in the area of human rights that, in the Commission’s judgment, require special consideration.  Before proceeding to these considerations, it is important to note positive aspects in Cuba reported by specialized international human rights bodies including, inter alia, the high quality of the sanitation system as a decisive factor in reducing infant mortality and increasing the life expectancy of the Cuban population, low illiteracy rates among the population, and the percentage of women employed in the public sector—and particularly in the administration of justice system—which has been over 49.6% since 1996.[62] 

Conditions of detention

59.             According to the American Declaration of the Rights and Duties of Man,[63] every human being has the right to life, liberty, security, and integrity,[64] and the right to recognition of juridical personality.[65] In this regard, the Inter-American Court of Human Rights[66] has consistently ruled that “every person deprived of her or his liberty has the right to live in detention conditions compatible with her or his personal dignity, and the State must guarantee to that person the right to life and humane treatment,[67] and that “[t]he State, being responsible for detention centers, is the guarantor of these rights of the detainees.” [68] The Commission previously has addressed the issue of detention conditions in Cuba.[69]

60.             According to information received by the Commission during its 119^th regular session, people deprived of their liberty in Cuba are subjected to abusive conditions and are generally confined in overpopulated cells. Human Rights Watch has reported to the Commission that prisoners often lose weight as a result of inadequate nourishment, and many are refused access to medical care.  It further reported the presence of physical and sexual abuse carried out by security guards[70] and by other prisoners,[71] with the apparent approval and acquiescence of prison authorities.[72]

61.             The IACHR was also informed that political prisoners who denounce or refuse to abide by prison rules are punished inter alia with long periods of solitary confinement, restrictions on visits, and lack of medical care. Such measures are especially grave for prisoners over the age of 60, and those who are ill.[73]

62.             Moreover, the Commission has received information regarding the precarious detention conditions of a group of approximately 75 leaders of a dissident movement in Cuba who were sentenced to prison terms in April 2003.[74] According to this information, the 75 detainees were deliberately jailed in prisons a great distance from their places of residence and telephone contact and correspondence were restricted, they were subjected to mistreatment by prison guards, and they were held in solitary confinement.[75]

63.             In particular, the Commission highlights the information it has received on numerous cases involving the physical mistreatment of some of these jailed dissidents by prison guards and by other prisoners, with the complicity or acquiescence of the guards.  This was the case of Jorge Luis García Pérez, “Antúnez”, who was beaten on July 5, 2004, in the presence of his sister while she was visiting the jail, apparently for protesting the prison authorities’ refusal to give his sister some letters that belonged to him and that were in the possession of the military authorities. The Commission also received information about the beating of prisoner Luis Enrique Ferrer García by seven prison guards on August 30, 2004.[76]

64.             The Commission likewise received information regarding harassment of relatives of the prisoners, including restrictions on telephone calls and correspondence with the prisoners. Amnesty International reported that in some cases, such as that of nine prisoners of conscience held in the Kilo 8 prison in Camagüey province, prison guards threatened to suspend their family visits unless they desisted from certain activities such as reading the Bible.[77]

65.             As one practice that is of particular concern, the Commission points out that all of the convicted prisoners were transferred to solitary confinement in the punishment areas of high security prisons, located far from their home communities, in cells with little or no ventilation, lighting, or beds, and that the authorities have refused them the right to receive visits and adequate medical care.  This practice is considered additional punishment for the prisoners, in that it blocks access by their families as well as their legal representatives.

66.             Regarding health conditions, the Commission is aware that a significant number of the convicted prisoners are over 60 years of age and suffering from chronic illnesses affecting their vision, kidneys, and heart, and they are not receiving appropriate medical care for their conditions.  The IACHR was pleased to note press reports reporting that several of those sentenced form the “group of 75” were granted “extra-prison” status,[78] allowing them to leave the prison.  According to the press reports, the individuals granted this permission have serious health problems.  Later reports submitted to the IACHR indicate that permission to leave the prison was recently granted to Martha Beatriz Roque Cabello, Juan Roberto de Miranda Hernández, Oscar Manuel Espinosa Chepe, Raúl Ramón Rivero Castañeda, Carmelo Agustín Díaz Fernández, Osvaldo Alfonso Valdés, Edel José García Díaz, Manuel Vásquez Portal, Jorge Olivera Castillo, Orlando Fundora Álvarez, Marcelo López Bañobre, Julio Antonio Valdés Guevara, Miguel Valdés Tamayo, Margarito Broche Espinosa, and Jesús Mustafá Felipe.

Labor rights and freedom of association

67.             The American Declaration recognizes the rights of every person to work,[79] to peaceful assembly,[80] and to associate with others to promote, exercise, and protect his legitimate interests.[81] In determining the scope of the right to free association as it relates to the right to work, the Inter-American Court has stated that this must be analyzed in relationship with the freedom to organize labor unions.[82] In the Court’s opinion,

In labour union matters, freedom of association consists basically of the ability to constitute labour union organisations, and to set into motion their internal structure, activities, and action programme, without any intervention by the public authorities that could limit or impair the exercise of the respective right. On the other hand, under such freedom it is possible to assume that each person may determine, without any pressure, whether or not she or he wishes to form part of the association. This matter, therefore, is about the basic right to constitute a group for the pursuit of a lawful goal, without pressure or interference that may alter or denature its objective.[83]

68.             During 2004, the IACHR received information on the human rights situation of workers and labor leaders in Cuba. This included the situation of seven trade unionists arrested on March 18, 2003, and subsequently convicted,[84] harassment of collaborators and activists of the independent trade union movement, and other acts affecting freedom of association.[85]

69.             With respect to harassment, the Commission received information on 19 cases, ranging from aggressive acts carried out by the National Revolutionary Police to the firing of leaders protected by the legally independent status of trade unions. This was the case of Magalis Suárez Martínez, who, despite being the Provincial Delegate of the Independent National Workers Confederation of Cuba [Confederación Obrera Nacional Independiente de Cuba], was fired from the mechanics plant in the Santa Clara industrial zone, allegedly for being a “counterrevolutionary.”[86] According to the information received, other leaders have been pressured regarding their trade union activities. This was the case with Lázaro Gonzalez Adán, José Agramante Leiva, Martha Ida Horta, and Pablo Gregorio Molina Nieves. The latter two apparently were members of the Independent National Workers Confederation of Cuba.[87]

70.             Acts of political discrimination reported to the Commission in 2004 included 47 cases of workers apparently fired from their jobs for political reasons, which including signing the Varela Project, promoting human rights, providing information to the independent press, and belonging to opposition political groups.[88]  Additional information received concerned 21 cases of people refused employment for the reasons mentioned.

71.             Regarding freedom of association, the Commission expresses its concern over the existence of only one trade union central recognized officially and mentioned in Cuban law, a situation which has also been addressed by the International Labor Organization.[89] The Commission wishes to stress that the guiding principles of the Constitution of the International Labor Organization, of which Cuba is a signatory, include “recognition of the principle of freedom of association” as an essential condition for “universal peace and harmony."  In this sense, the Commission believes that the acts of harassment to which the aforementioned labor unionists have been subjected are contrary to human rights.

72.             Finally, based on the ILO’s database of indicators, the unemployment rate in Cuba is 3.3%,[90] which the IACHR registers as significant progress in reducing the unemployment rate among its population.[91]

Rights of Women

73.             By adopting the American Declaration, the States recognized that human rights are based on the attributes of the human personality,[92] and that “all persons are equal before the law and have the rights and duties […] without distinction as to […] sex”.[93]  With regard to equality before the law, the IACHR has stated that this “requires that national legislation accord its protections without discrimination.”[94] Previously, the IACHR has stated that guarantees of equality before the law and nondiscrimination “reflect essential bases for the very concept of human rights.”[95] As the Inter-American Court has affirmed, these principles spring “directly from the oneness of the human family and [are] linked to the essential dignity of the individual.”[96]

74.             On matters of women’s rights, the American Declaration and the International Convention on the Elimination of all Forms of Discrimination against Women[97] are part of the international corpus juris of protection, as the Inter-American Court has stated in its interpretation of the scope of rights under inter-American instruments in light of universal instruments.[98]

75.             At the domestic level, it is important to note that Cuba has a legal framework to protect the human rights of women. The Cuban Constitution explicitly provides that women enjoy the same economic, political, cultural, social, and family rights as men.[99] The Family Code guarantees men and women equal rights during marriage and divorce.[100] The Cuban government approved a decree-law improving maternity rights and protections for women workers.[101]  There is also information indicating that the government has designed a national HIV-AIDS response incorporating care and prevention.[102]  In addition, it is important to recognize that Cuba has been a State Party to the Convention on the Elimination of All Forms of Discrimination against Women since July 17, 1980, the date on which it ratified that instrument.

76.             Specifically with regard to violence against women, the Criminal Code penalizes sexual abuse, rape, and sexual harassment.[103] Nonetheless, Cuba is still not a State party to the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women.  The information received by the IACHR indicates that the country lacks laws specifically addressing the issue of violence against women.[104] The lack of statistics on different types of violence against women also makes it difficult to measure the impact of existing laws.[105]

77.             Finally, the Commission continues to receive information regarding repression and human rights violations against women considered dissidents or government opponents.  Women such as journalists considered dissidents are at risk of imprisonment, persecution, detention, removal from their jobs, and their families may be subject to threats and persecution.[106] In addition, the space for participation of Cuban women’s organizations is severely restricted.[107]

Right to Movement and Residence

78.             The Commission previously has addressed the issue of respect for the right to residence and movement in Cuba.[108] As enshrined in the American Declaration, every person has the right to move about freely within the territory of the state of which he is a national and not leave it except by his own will.[109] The Inter-American Court has concurred with the Commission on Human Rights in that

[p]ersons are entitled to move from one place to another and to establish themselves in a place of their choice.  The enjoyment of this right must not be made dependent on any particular purpose or reason for the person wanting to move or to stay in a place.[110]

79.             In 2004, the Commission received information that the Cuban State continues to refuse to recognize the right of its citizens to leave the country and return at will.  Based on the information received by the IACHR, including complaints filed through the individual case system,[111] Cuban citizens require authorization from the Ministry of the Interior to travel abroad.

80.             It should be noted that the information received by the IACHR indicates that the Cuban migration authorities continue to deny visas for political reasons to citizens wishing to leave or enter the territory, or they delay processing of such requests indefinitely.  This is the case with Herbert Alves de Oliveira, a Brazilian citizen who married Rita del Carmen Ruíz Delgado in Cuba. As her husband, he tried to request a temporary exit permit on her behalf, the examination of which was postponed for a period of 3 to 5 years.

81.             Similarly, the Commission received a complaint from Anniken Bogaard Hansen, who allegedly married a Cuban medical doctor, Jenrry González Medinilla, in Havana. According to the complaint, the Cuban authorities are denying her husband permission to leave the island, saying that because he benefited from a free university education, he must work for the government for a certain period of time.

82.             The Commission is of the opinion that the Cuban State restricts the right to residence and movement enshrined in the American Declaration. The IACHR also observed that the people most affected by the restrictions imposed by the Cuban authorities are those who disagree with the type of government in power in the country.

Freedom of Expression

83.             According to the American Declaration, “[e]very person has the right to freedom of […] expression and dissemination of his ideas by any medium whatsoever.”[112]  Likewise, the Declaration of Principles on Freedom of Expression[113] stipulates that,

[f]reedom of expression in all its forms and manifestations is a fundamental and inalienable right of all individuals. Additionally, it is an indispensable requirement for the very existence of a democratic society.[114]

84.             As the Inter-American Court of Human Rights has stated on several occasions, those who enjoy the right to freedom of expression “have not only the right and freedom to express their own thoughts, but also the right and freedom to seek, receive, and disseminate information and ideas of all types. Consequently, freedom of expression has both an individual and a social dimension:

It requires, on the one hand, that no one may be arbitrarily harmed or impeded from expressing his own thought and therefore represents a right of each individual; but it also implies, on the other hand, a collective right to receive any information and to know the expression of the thought of others.” ^[115]

85.             Regarding the social dimension of the right to freedom of expression, the Inter-American Court indicated that it constitutes “a medium for the exchange of ideas and information among people; it encompasses their right to try to communicate their points of view to others, but it implies too the right to know the opinions, stories, and news expressed by others.”[116]

86.             In 2004, the IACHR continued to receive reports, through its Rapporteurship on Freedom of Expression, on acts of repression and censorship against those wishing to express themselves freely in Cuba.[117] The Commission has maintained on numerous occasions that Cuba is the only country on the continent about which it can be stated categorically that freedom of expression does not exist. This affirmation remains true this year in light of reports the Commission has received concerning mistreatment of imprisoned journalists, pre-publication censorship, acts of intimidation against journalists, the application of desacato [contempt] laws, and indirect violations of freedom of expression.

87.             The Commission received copious amounts of information reporting the alleged mistreatment of several jailed journalists. According to reports received by the Commission, Normando Hernández Gonzalez, Adolfo Fernández Saín, Juan Carlos Herrera, and Víctor Rolando Arroyo were beaten and subjected to mistreatment in the prisons where they are being held.  The IACHR was informed that Normando Hernández Gonzalez had staged a hunger strike to protest this situation.

88.             With regard to prior censorship, the IACHR was informed that several journalists were detained and their houses searched as a result of their work.  This was the case of journalist Maria Elena Alpízar, who was detained on her way to covering an activity by the wives of jailed dissidents from the “group of 75.”  Moreover, the Commission received reports that government security agents searched the house of Ana Maria Espinosa Escobedo, taking a fax machine and several books, and threatening her because of her work as a journalist.

89.             The Commission received reports that, on April 26, 2004, a sentence was handed down in the case of a group of human rights activists accused of contempt [desacato] of the figure of the President of Cuba.  According to the information received, Virgilio Mantilla Arango was sentenced to 7 years in prison and Juan Carlos Gonzalez Leiva to 4 years in prison. According to reports made to the IACHR, other members of the group were sentenced to prison terms of 3 and 2 years.

90.             According to the reports received, since January 24, 2004, use of the regular telephone network, billed in pesos, to connect to the Internet has been prohibited.  Access to the Internet is granted only to those directly authorized by the “head of an entity or organization pertaining to the central administration.” The report states that the Cuban government made this decision to combat the clandestine use of the Internet. It has also requested that Etecsa, the only Cuban telecommunications operator, “employ all technical means necessary to detect and impede access to the Internet” by unauthorized individuals.^[118]

Right to Justice and Due Process

91.             Under the American Declaration, every person has the right to resort to the courts,[119] to protection against arbitrary arrest,[120] and to due process of law.[121] These rights, together with others, make up a body known as “legal due process guarantees,” which are nothing more than the minimum guarantees recognized for every human being with respect to legal processes of any nature. As the Inter-American Court has reiterated on several occasions,

States have the responsibility to embody in their legislation and ensure due application of effective remedies and guarantees of due process of law before the competent authorities, which protect all persons subject to their jurisdiction from acts that violate their fundamental rights or which lead to the determination of the latter’s rights and obligations.[122]

92.             During 2004, the Commission received several complaints alleging that Cuba continues to conduct trials under the “extremely summary” proceedings outlined in Articles 479 and 480 of Law 5 or “Law of Criminal Procedure”[123]. Among the cases that have come to the attention of the IACHR, are those involving members of the “group of 75”, as well as that of the three people who were executed in April 2003 after having been prosecuted under this procedure.  With regard to the latter case, the IACHR issued Press Release 12/03[124], concluding that

[t]he summary character that followed the judgment against the persons and which concluded with the imposition of the death penalty did not guarantee any of the above-mentioned requirements of due process.

93.             It is the Commission’s view that the full and effective exercise of the judicial guarantees enshrined in the American Declaration is premised on an independent and autonomous Judiciary. The Commission has stated consistently that Cuba lacks the separation of powers that ensures an administration of justice free of interference by other branches of government. In effect, Article 121 of the Political Constitution of Cuba stipulates that “[t]he courts comprise a system of government organs, set up with functional independence from any other and hierarchically subordinate to the National Assembly of Popular Power and the Council of State.” The Commission believes that the subordination of the courts to the Council of State, presided over by the Chief of State,[125] constitutes the Judiciary’s direct dependence on the directives of the Executive branch.  Under this system, the Commission believes that the Cuban courts do not effectively guarantee the rights of the accused enshrined in the American Declaration.

94.             The Commission believes that the aforementioned characteristics of the judicial branch in Cuba do not guarantee the rights of the accused, particularly in cases with a political connotation. During the period covered by this report, the IACHR continued to receive information regarding trials in which the Cuban courts, adhering to these standards, allegedly judged the accused using ideological and political criteria rather than legal procedures that reflect Cuba’s international human rights obligations. In this sense, the Commission urges Cuba to bring its judicial procedures into harmony with the applicable international standards.

95.             The Commission is of the opinion that Cuba must fully recognize inter-American standards of due process so that everyone who turns to the courts for a ruling on their rights and responsibilities is ensured the minimum legal guarantees necessary to exercise a means of defense. It is the Commission’s view that the existing legal framework is not in compliance with Cuba’s international obligations in this regard.

96.             During its 121 regular session, the IACHR approved admissibility report numbers 57/04 and 58/04 corresponding to the aforementioned cases, alleging the prosecution and sentencing of more than 75 dissidents and opposition figures arrested in March and April 2003, as well as the extremely summary trial and death sentences carried out without legal due process guarantees.  On November 8, 2004, the Government of Cuba was advised of these admissibility reports.  In correspondence dated December 2, 2004, the Cuban Government returned the documents sent.

97.             In this regard, the Commission has maintained that the Cuban State is juridically answerable to the IACHR in matters that concern human rights since it “is party to the first international instruments established in the American hemisphere to protect human rights.” [126] The Commission has repeatedly affirmed that Resolution VI of the Eighth Meeting of Consultation “excluded the present government of Cuba, not the State, from participation in the inter-American system.”[127]  Therefore, the exclusion of that Government from the regional system in no way means that it is no longer bound by its international human rights obligations.[128] Despite the attitude of the Cuban Government, the Commission will continue to work to protect and promote the human rights of the Cuban people.

Economic Sanctions

98.             The Commission has been following the measures adopted in recent years to rescind certain restrictions on the sale of food and medicines to Cuba, and to facilitate humanitarian assistance.[129]

99.             In recent years, the Inter-American Human Rights Commission has pointed out that the inter-American community has the responsibility to create external conditions that enable Cuban society to overcome the situation currently affecting it, with a view to achieving the full observance of human rights. In this regard, the Commission considers that the adverse effects of the economic sanctions and other unilateral measures aimed at isolating the Cuban regime constitute an obstacle to creating those conditions that are so necessary for achieving a peaceful and gradual transition to a democratic form of government.” [130]

100.        The Commission has observed that as a result of the severe impact of the economic sanctions on the economic and social rights of the population, the Cuban people’s standard of living has deteriorated progressively over the past four decades. In the view of the Commission, it is necessary to adopt all necessary measures to put an end to the trade embargo against Cuba.  Such measures aimed at putting an end to Cuba’s current isolation would facilitate the political and economic reforms that the current situation urgently requires and that are crucial for promoting the establishment of a peaceful political transition in that country.

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