IACHR - ANNUAL REPORT 2008
 

CHAPTER IV - HUMAN RIGHTS DEVELOPMENTS IN THE REGION

 

CUBA

 

I.          JURISDICTION FOR OBSERVING AND EVALUATING THE SITUATION OF HUMAN RIGHTS IN CUBA

 

145.          The Commission’s jurisdiction to observe the situation of human rights in member states derives from the OAS Charter, the Commission’s Statute, and its Rules of Procedure.  According to the Charter, all Member States undertake to respect fundamental individual human rights which, in the case of States not parties to the Convention, are those rights established in the American Declaration of the Rights and Duties of Man (hereinafter the “American Declaration”), which is a source of international obligations[204]. The Statute charges the Commission with paying particular attention to the observance of the human rights recognized in Articles I (the right to life, liberty, personal security and integrity), II (the right to equality before law), III (the right to religious freedom and worship), IV (the right to freedoms of investigation, opinion, expression and dissemination), XVIII (the right to a fair trial), XXV (the right of protection from arbitrary arrest), and XXVI (the right to due process of law) of the American Declaration when exercising its jurisdiction vis-à-vis countries that are not parties to the Convention[205].

 

146.          On January 14, 2009, the Commission sent this report to the State of Cuba and asked for its observations. The State did not respond.

 

147.          Cuba has been a Member State of the Organization of American States since July 16, 1952 when it deposited its instrument of ratification of the OAS Charter. The Commission has maintained that the Cuban State “is juridically answerable to the Inter-American Commission in matters that concern human rights” since “it is a party to the international instruments that were initially established in the American Hemisphere for the purpose of protecting human rights” and because Resolution VI of the Eighth Meeting of Consultation[206] “excluded the Cuban government, not the Cuban State, from participation in the Inter-American system[207].” In this regard, the IACHR stated:

 

[...] has always considered that the purpose of the Organization of American States in excluding Cuba from the Inter-American system was not to leave the Cuban people without protection. That Government’s exclusion from the regional system in no way means that is no longer bound by its international human rights obligations[208].

 

148.          By virtue of its jurisdiction, the IACHR has observed and evaluated the situation of human rights in Cuba in special reports,[209] in Chapter IV of the Annual Reports,[210] and by means of the case system.[211] The IACHR has also asked the Cuban State on several occasions to adopt precautionary measures for protecting the lives and personal integrity of Cuban citizens.[212]

 

149.          Pursuant to the criteria established by the IACHR in 1997 for identifying States whose practices in the area of human rights deserve special attention, the situation of human rights in Cuba falls under the criteria numbers one and five, insofar as the political rights enshrined in the American Declaration are not observed and structural conditions that seriously and gravely affect the enjoyment and practice of fundamental rights established in the American Declaration persist.

 

150.          In 2008, the Commission has observed and evaluated the situation of human rights in Cuba and decided to include in this chapter of its annual report considerations related to the situation of political rights of Cubans; guarantees of due process of law and independence of the judiciary; detention conditions for political dissidents; restrictions on the freedom of expression; restrictions on freedom of association; the situation of human rights defenders; women’s rights, and children’s rights.  In addition, consideration is given to the economic and commercial sanctions imposed on the Cuban Government, reiterating that they should be eliminated because they tend to aggravate restrictions on the effective exercise of economic, social and cultural rights by the Cuban people.

 

151.          In preparing this report, the Commission has obtained information from international agencies, civil society organizations, and the Cuban government via the official web site of the Ministry of Foreign Affairs of Cuba.  Furthermore, at a public hearing held during its 133rd regular session, the Commission received information on the situation of political prisoners in Cuba, in particular regarding trade union members deprived of liberty.[213]  The Commission notes the scarcity of information available on human rights in Cuba from sources both on the island or abroad.

 

II.         PRELIMINARY CONSIDERATIONS

 

152.          Cuba has not responded to any of the communications that the Commission has sent it regarding its annual reports,[214] processing of cases, and precautionary measures, which are instruments to which the IACHR has recourse in performing the functions by which to protect human rights.  The absence of information constitutes an obstacle to the work of the Commission and is incompatible with the duties of the State.

 

153.          In view of the foregoing, the Commission believes it especially important to engage the Cuban state in dialogue, in order to follow up on the matters proceeding before the inter-American system, which particularly affect the human rights of persons under Cuban jurisdiction.  Accordingly, the Commission reiterates its commitment to work with the Cuban state and calls for dialogue so as to contribute to the advancement and strengthening of human rights in that country.

 

154.          With respect to the economic and trade embargo imposed by the United States on Cuba since 1961, the IACHR reiterates its position regarding the impact of such sanctions on the human rights of the Cuban people and, therefore, insists that the embargo be lifted.[215] However, the economic embargo in place on Cuba does not free the State of its duty of meeting its international obligations, nor does it excuse it for the violations of the American Declaration described in this report.

 

III.        SITUATION OF HUMAN RIGHTS IN CUBA

 

A.                 Positive Aspects and Overall Progress

 

155.          In the process of evaluating the situation of human rights, the Commission acknowledges a series of accomplishments by the State of Cuba. In that connection, it lauds the fact that on February 28, 2008 the Cuban Government signed the United Nations International Covenant on Civil and Political Rights and the United Nations International Covenant on Economic, Social and Cultural Rights.

 

156.          The Commission acknowledges the important achievements met in Cuba in relation to the Millennium Development Goals established by the United Nations.

 

Cuba is a medium income country that belongs to the group of countries with high human development (ranked 51 out of 177). According to national reports, it has already achieved three of the eight MDGs: universal elementary education; gender equality; and reduction of infant mortality (Goals 2, 3 and 4). It is believed that three more MDGs can be achieved by 2015: eradicate extreme poverty and hunger; improve maternal health and fight against HIV/AIDS and other diseases (Goals 1, 5 and 6).

 

The Government also believes it can probably meet the last two Goals related to environmental sustainability and world development alliances. However, the human development indices broken down by zones show a certain degree of heterogeneity, wherefore the Government gives priority to the eastern regions of the country as far as development strategies are concerned.[216]

 

157.          Regarding maternal health, the Commission acknowledges that, according to the information available, 100% of births in the country are attended by skilled personnel.[217] Also, the maternal mortality ratio is 45 maternal deaths per 100,000 live births, which is a lower figure than the average for Latin America (190).[218]

 

158.          As to the country’s economic development, the report of the United Nations and the Ministry for Foreign Investment and Economic Cooperation indicates the following:

 

In the last two years we have seen dynamic international tourism, diversification of trade relations, particularly with Venezuela and China, and increased nickel exports, as well as the export of biotechnology and pharmaceutical products. The economy was also stimulated by exports of professional services and the expansion of construction.

 

Cuba is going through a decentralization process of social services, meeting the challenge of combining efficiency, financing and quality in its response to local demands and characteristics. However, it continues to be necessary to streamline the use of resources, develop capacities for local production, and strengthen management techniques. Despite the measures adopted to correct territorial imbalances, there are still differences in living conditions in different regions of the country. That is why there is a need to continue to encourage production, social and service investment, and facilitate the strengthening of local and national capabilities.

 

The subject areas defined in the 2008-2012 Program are: a) Local human development; b) Natural disasters and risk; c) Environment and energy for sustainable development; and d) Prevention and fight against HIV/AIDS. In addition, the UNDAF includes the subject of food security, with which the UNDP will cooperate by promoting local human development.[219]

 

159.          In addition, the Commission has observed that on June 20, 2008,[220] the European Union (EU) unanimously agreed to lift diplomatic sanctions against the Cuban regime that had been in place since 2003, in recognition and support of the changes towards a liberalization made by the Cuban government.

 

B.         Structural conditions that seriously impair full enjoyment of human rights in Cuba

 

160.          Restrictions on political rights, freedom of expression and dissemination of ideas have created, over a period of decades, a situation of permanent and systematic violations of the fundamental rights of Cuban citizens, which is made notably worse by the lack of independence of the judiciary.  In this section the Commission addresses these issues in the following order: i) political rights; ii) guarantees of due process of law and independence of the judiciary; iii) detention conditions for political dissidents; iv) restrictions on the freedom of expression; v) freedom of association; vi) human rights defenders; vii) the situation of women’s rights; and, viii) the situation of children’s rights.

 

1.                Political Rights

 

161.          The organs of the inter-American system have held that political rights are human rights of fundamental importance and are intimately associated with an array of other rights that make the democratic game possible.[221]  Thus, the Inter-American Court of Human Rights found that,

 

[…] The right to vote it is one of the elements sine qua non for the existence of democracy and one of the ways by which citizens freely express their will and exercise the right to participate in government.  This right implies that citizens may, on an equal footing, directly decide and freely elect those who will represent them in decisions on public affairs.” The Court also held that [P]articipation in government through the exercise of the right to be elected presupposes that citizens may put themselves forward as candidates on an equal basis and hold elected positions in public office if they receive the necessary amount of votes to do so.[222]  In that connection, the Court noted that the American Convention prohibits suspension of this right even in a state of emergency.[223] 

 

162.          In a similar vein, the Commission has held that, inter alia, the existence of free elections, independent and effective powers and branches of government, and unbridled respect for freedom of expression, among others, are fundamental aspects of democracy that cannot be assessed in isolation from one another.  From that perspective, full assurance of human rights is not possible without effective and unrestricted recognition of the right of individuals to form and participate in political groups.

 

163.          Regarding the restriction of political rights, the Cuban State has said that

 

The restrictions for some political rights in Cuba, that have been set out by law, have been the bare minimum needed to guarantee the protection of the right to free determination, peace and life of all the people, as an answer to the growing anti-Cuban aggressiveness of the empire.[224]

 

164.          Similarly, regarding the right of free expression the Cuban Government maintains that

 

The Cuban people only restrict the “freedom” of opinion and expression of those few who would sell their services as mercenaries to the policy of hostility, aggression and genocidal blockade of the United States government against Cuba. By applying such restrictions, Cuba is acting by virtue of not just its national legislation, but also the numerous international human rights instruments and successive resolutions passed by the United Nations General Assembly which have demanded respect for the free determination of peoples and the cease of the economic, commercial and financial blockade being applied by the government of the United States against Cuba.[225]

 

165.          The Commission finds that one of the main reasons for drafting the instant report is the absence in Cuba of free elections based on internationally accepted standards, which violates the right to political participation established in Article XX of the American Declaration of the Rights and Duties of Man, which provides

 

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

 

166.          Article 3 of the Democratic Charter signed in Lima, Peru on September 11, 2001, defines the elements that make up a democratic system of government:

 

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

 

167.          The American Declaration and the Democratic Charter reflect a broad conception of representative democracy which, by definition, rests on the sovereignty of the people, and in which the functions through which power is exercised are carried out by persons chosen in free elections that represent the will of the populus.  In the Commission’s estimation those elements are not present in Cuban elections, which are noted precisely for a lack of plurality and independence as well as the absence of a framework of free access to a diversity of information sources.  In light of the aforementioned international standards (supra, pars.16, 17, and 21), the Commission reiterates that the lack of free and fair elections based on secret balloting and universal suffrage as an expression of the sovereignty of the people,[226] violates the right of the Cuban people to political participation.  The Commission also notes that in spite of its reiterated recommendations to the State to reform the legal system that it has in force in order to attain unobstructed observance of human rights in Cuba, there are persistent systematic practices that violate freedom of expression, assembly, and association which continue to be supported by constitutional and criminal law provisions, and which will be addressed in the sections analyzed hereinbelow.

 

2.         Guarantees of Due Process of Law and Independence of the Judiciary

 

168.          In 2008, the Commission continued to receive troubling information about the structural lack of independence and impartiality in the courts; and the absence of judicial and fair trial guarantees in the prosecution of persons sentenced to death as well as persons considered political or ideological dissidents, something particularly serious given the use of summary proceedings.

 

169.          According to the case law of the inter-American system, all organs that exercise functions of a substantially jurisdictional nature have the obligation to adopt just decisions based on full respect for the guarantee of due process. The American Declaration provides that every person is entitled to recourse before the courts,[227] to protection from arbitrary arrest[228], and to due process of law.[229] Those rights are a part of what are known as the guarantees of due legal process and represent the minimum guarantees recognized with respect to all individuals in judicial proceedings of all kinds.

 

170.          The American Declaration also provides that every human being has the right to liberty[230] and that no persons may be deprived of their liberty except in the cases and according to the procedures established by pre-existing law.[231] Furthermore, under the American Declaration, every individual who has been deprived of liberty has the right to have the legality of that detention ascertained without delay by a court, and the right to be tried without undue delay or, otherwise, to be released.[232] In addition, every person accused of an offense has the right to be given an impartial 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.[233]

 

171.          Moreover, the Inter-American Court considers that the right to be tried by an impartial and independent judge or court is a fundamental guarantee of due process. In other words, it must be ensured that the judge or court hearing a case does so based on the utmost objectivity. Furthermore, the independence of the Judiciary from the other State powers is essential for the exercise of judicial functions.[234]  In a recent decision, the Court ruled that

 

[O]ne of the principal purposes of the separation of public powers is to guarantee the independence of judges. Such autonomous exercise must be guaranteed by the State both in its institutional aspect, that is, regarding the Judiciary as a system, as well as in connection with its individual aspect, that is to say, concerning the person of the specific judge. The purpose of such protection lies in preventing the Judicial System in general and its members in particular, from finding themselves subjected to possible undue limitations in the exercise of their functions, by bodies alien to the Judiciary or even by those judges with review or appellate functions.[235]

 

Likewise, public officials, particularly the top Government authorities, need to be especially careful so that their public statements do not amount to a form of interference with or pressure impairing judicial independence and do not induce or invite other authorities to engage in activities that may abridge the independence or affect the judge’s freedom of action.[236]

 

172.          The Court also found that the impartiality of a court implies that its members have no direct interest in, a pre-established viewpoint on, or a preference for one of the parties, and that they are not involved in the controversy.[237]

 

173.          For the European Court of Human Rights, the impartiality of the judge is composed of subjective and objective elements.  The subjective impartiality of the judge must be presumed until there is proof to the contrary.  Objective impartiality, on the other hand, requires the court to offer sufficient guarantees to dispel any doubts about impartiality in the proceeding.[238]

 

174.          With respect to the guarantees of independence and impartiality, it should be noted that Article 121 of the Constitution of Cuba provides,

 

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

 

175.          Thus, the Commission notes that the subordination of the courts to the Council of State, chaired by the head of State, means that the judiciary is directly dependent on instructions handed down by the executive branch of government.  In the opinion of the Commission, this dependence on the executive branch precludes the possibility of an independent judicial branch able to deliver guarantees for the enjoyment of human rights.

 

176.          According to information received in 2008, the Cuban courts persist in trying dissidents in accordance with political and ideological criteria in expedited summary proceedings as,[239] for example, in the trial and conviction in 2008 of Julián Antonio Monés Borrero who was arrested and charged with “attack on an authority” on September 30, 2008 in the province of Guantánamo.  According to information received, Monés is said to have been charged with assaulting an Interior Ministry official during a public gathering in September.  On November 26, 2008, the Municipal Tribunal of Baracoa, Province of Guantánamo, sentenced Julián Antonio Monés Borrero to three years in prison.  The appeals court upheld the sentence on December 12, 2008.

 

177.          In this connection, the Commission finds that the lack of observance of fair trial guarantees is particularly troubling in summary proceedings because they do not offer the accused the basic guarantees necessary to exercise their right to mount an adequate legal defense.  In that regard, in Case 12.477 (Lorenzo Enrique Copello Castillo et al.)[240] the IACHR concluded that the Cuban State violated Article XVIII and Article XXVI of the American Declaration when it convicted three people without due process of law, and sentenced them to the death penalty, given that Messrs. Lorenzo Enrique Copello Castillo, Bárbaro Leodán Sevilla García and Jorge Luis Martínez Isaac were executed by a firing squad after an expedited summary proceeding without the right to a legal defense, legal impartiality and independence, among others. In adopting the Report on the Merits, the Commission made reference to the expedited summary proceeding in which Messrs. Copello, Sevilla, and Martinez were convicted and sentenced to death:

 

Because the right to life and to freedom are considered basic human rights, it is essential that any person who is arrested has access to adequate judicial process within a reasonable period during which the appropriate arguments and evidence can be studied seriously, all of which requirements must be even more rigorous in cases where the persons are accused of crimes punishable by the death penalty.

 

The trial against Messrs. Copello, Sevilla, and Martinez began on April 5, 2003 and finished on April 11, 2003, during which time they were even sentenced to death. In this regard, in order to determine whether the length of the trial was reasonable or not, the Commission must take into account the complexity of the matter, the part played in the trial by the accused, and the conduct of the judicial authorities.

 

From the information provided by the petitioners, and the content of public statements by the Ministry of Foreign Affairs of Cuba, and from the judgment of first instance dated April 8, 2003 by the People’s Provincial Court of the City of Havana, it is clear that the proceedings in which the alleged victims were tried was an expedited summary trial, in which the most serious punishment envisaged by Cuban legislation was imposed, i.e. the death penalty.

 

Although Articles 479 and 480 of the Cuban Law of Criminal Process envisage the possibility of holding an expedited summary proceeding, the law itself only envisages it in the case of exceptional circumstances.

 

The Cuban Law of Criminal Process stipulates that in the case of an expedited summary trial, the competent Court may, in as far as it judges necessary, reduce the periods for processing prior proceedings, the oral hearings, and the appeal.

 

In an expedited summary trial, the competent Court may, insofar as it deems necessary, reduce the time periods for preliminary proceedings, oral hearings and appeals.

 

With regard to the power granted by Section 480 to Cuban courts of justice, the Commission observes that the decision to apply an exceptional proceeding is left to those who dispense justice in the case in question; therefore, the decision of how long the time periods should be for all phases of the trial, including preliminary matters, the trial itself and appeals, are all also left to the judge to decide.”[241]

 

178.          Based on the factual and legal considerations contained in Merits Report 68/06 in Case 12.477, the IACHR recommended the Cuban State to adopt the measures necessary in order to adapt its laws, proceedings, and practices in line with international human rights law. In particular, the Commission recommended the Cuban State to reform the criminal law to ensure the right to justice and the right to a regular process, as well as to reform its Constitution to ensure the independence of its judiciary. It also recommended to make compensation to the families of the victims for the material and psychological damage they have suffered by virtue of the violations of the American Declaration established in the report and to adopt all measures necessary to ensure that similar events may not occur again, in accordance with the duty of the State to protect and guarantee human rights.

 

179.          As regards the death penalty, the Criminal Code of Cuba provides this punishment for crimes against state security; the peace and international law; public health; life and physical integrity; the normal development of sexual relations; the normal development of children and adolescents, and property.  By way of illustration, under the title that deals with crimes against state security, the statutory offences for which the death penalty is the maximum punishment are as follows: Acts against the Independence or Territorial Integrity of the State; Promotion of Armed Action against Cuba; Armed Service against the State; Aiding an Enemy; Espionage; Rebellion;[242] Sedition; Usurpation of Political or Military Control; Sabotage; Terrorism; Hostile Acts against a Foreign State; Genocide; Piracy; Mercenary Activities; Apartheid;[243] and other acts against state security.  Capital punishment is also provided for the following statutory offences: Illicit Production, Sale, Solicitation, Trafficking, Distribution, and Possession of Drugs, Narcotics, Psychotropic Substances, and Other Substances with Similar Effects;[244] Murder;[245] Rape;[246] Pederasty with Violence;[247] Corruption of Minors;[248] Robbery with Violence, or Intimidation of Persons.[249]

 

180.          Further to the foregoing, the Commission received general information indicating that a significant number of statutory offenses that carry the death sentence, particularly where offenses against state security are concerned, are worded in excessively open-ended or ambiguous terms.  This could lead to the imposition of disproportionate penalties and enormous arbitrariness that could rule out any possibility of an effective defense for the individual before the authorities.[250]  The Commission notes that since 2000, the death penalty has been imposed in Cuba only in 2003, when Messrs. Lorenzo Enrique Copello Castillo, Bárbaro Leodán Sevilla García, and Jorge Luis Martínez Isaac (the victims in the above-cited case) were executed.

 

181.          Nonetheless, the Commission considers that the imposition of capital punishment requires the existence of an independent judiciary, in which the judges exercise a high degree of scrutiny and where fair trial guarantees are observed.  In this regard, the Inter-American Court has held,

 

[C]apital punishment is not per se incompatible with or prohibited by the American Convention.  However, the Convention has set a number of strict limitations to the imposition of capital punishment. [251]  First, the imposition of the death penalty must be limited to the most serious common crimes not related to political offenses.[252] Second, the sentence must be individualized in conformity with the characteristics of the crime, as well as the participation and degree of culpability of the accused.[253] Finally, the imposition of this sanction is subject to certain procedural guarantees, and compliance with them must be strictly observed and reviewed.[254]

 

182.          Accordingly, the Commission reiterates that the absence of an independent system for the administration of justice in Cuba, coupled with the lack of fair trial guarantees and the use of summary proceedings, undermines the fundamental rights of persons sentenced to death.  This means that the death penalty for political crimes is a latent threat.

 

183.          In sum, the Commission urges the Government of Cuba to bring its procedures into line with international standards of due process, to ensure that individuals who have recourse to the courts in order to determine their rights and responsibilities, enjoy minimum legal guarantees in exercising their defense. The Commission believes that the existing legal framework does not comply with Cuba’s international obligations in this regard. The full currency of the judicial guarantees enshrined in the American Declaration depends on the existence of an independent and autonomous Judiciary and on the application of clear and specific rules that do not permit arbitrary abuses of authority.

 

184.          Finally, it should be noted that on April 28, 2008, the State Council of the Cuban Government decided to commute the death sentence of several convicts and re-sentence them to life imprisonment or 30 years in custody, except for three people who were sentenced to death for having allegedly committed crimes of terrorism. Although information is not available on the identity of the people whose death sentences were commuted, according to the information received by the IACHR, approximately 30 people would be on death row in Cuba and would have benefited from the government’s decision,[255] most of whom were convicted of common crimes.

 

185.          On the above date, Raul Castro, President of Cuba, explained[256] that the decision to commute the sentences did not mean abolishing the death penalty from the Criminal Code, and he added, “even though our laws provide for the death penalty, because of the specific reasons that have already been explained and fully justified, Cuba understands and respects the arguments of the international movement in favor of its abolishment or moratorium. That is why our country has not voted against such initiatives at the United Nations.”[257]

 

 

186.          The Inter-American Commission values the decision made by the State Council to commute the death penalty for those who had been sentenced to such a grave and irrevocable punishment and hopes that the measure extends to all those who have been sentenced to death.  However, it reiterates its observation to the effect that the continued presence on the law books of the death penalty as a punishment for a significant number of statutory offences whose wording is open-ended or ambiguous, combined with the use of criminal proceedings that do not offer sufficient fair trial guarantees inasmuch as they are carried out in a summary manner, without trustworthy defense counsel and with juries of doubtful independence and impartiality, are in violation of internationally recognized instruments and case law on protection of human rights.

 

3.         Detention Conditions for Political Dissidents[258]

 

187.          In 2008 the Commission continued to receive information about prison conditions for political dissidents in Cuba, in particular on degrading treatment by prison authorities of persons branded as political opponents.[259] In that connection, the former political prisoner Pedro Pablo Álvarez made the following statement to the IACHR on October 28, 2008:

 

There are hundreds of political inmates who are currently being held in inhumane Cuban jails designed by the dictatorship in Havana to silence the truth. These men and women are cruelly and systematically being deprived of their most basic rights of liberty and the ability to freely express their thoughts, without being shown any respect for their personal dignity whatsoever.[260]

 

188.          On October 21, 2006 the Commission resolved to convey to the State and to the petitioners’ representatives,[261] to publish and to include in its Annual Report to the OAS General Assembly its Report on Merits No. 67/06 in Case 12.476 (Oscar Elías Biscet et al.) which deals with political dissidents who were arrested and tried in expedited summary proceedings during the so-called “Black Spring” operation in 2003, under Article 91[262] of the Cuban Criminal Code, and Law 88 on the Protection of Cuba’s National Independence and Economy, for actions related to the exercise of such basic freedoms as freedom of thought, conscience, belief and speech, and the right of peaceful assembly and free association. The sentences ranged from 6 months to 28 years in prison. At a public hearing held by the IACHR, the former political prisoner Pedro Pablo Álvarez referred to the reasons why the victims in Case 12.476 were arrested and the way in which the trials to which they were subjected were conducted:

 

Everyone knows about the horrific offensive unleashed by the authorities in Havana against seventy-four men and one woman in the so-called Black Spring of 2003 when we were arrested, absurdly charged with associating with a foreign power for the purpose of overthrowing the government and the Revolution.

 

I would like to clarify that there was not even one single case among the seventy-five of us who were arrested during that operation against whom any evidence was presented of having ties or concrete plans to violently overthrow the government in Cuba, with the complicity of any foreign force or power that might have intentions of invading the island. All of it was a fallacy of the Cuban government. They are perfectly aware of the civil and pacific nature of the Opposition Movement in our country.

 

We were tried in expedited summary proceedings without being afforded the due legal process that are guarantees in a Legal State, as provided in so many UN and OAS Declarations, Pacts and/or Conventions. We were barely allowed to speak with our defense attorneys. In my particular case, I was only allowed to talk for ten minutes just moments before the trial began. The sentence requested by the prosecution in my case was life imprisonment and, in the end, I was sentenced to imprisonment for a term of twenty-five years. [263]

 

189.          It should be noted that in Report 67/06, the IACHR concluded that the State of Cuba violated several articles of the American Declaration, including Articles I, II, IV, VI, XX, XXI, XXII, XXV, and XXVI to the detriment of the victims in the case; that it violated Article V with respect to eight of the victims; Article X to the detriment of 14 victims, and Article XVIII with regard to 73 victims. The Commission further concluded that the State did not violate Articles IX, XI and XVII of the American Declaration to the detriment of the victims.[264]

 

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

 

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

 

2. Adopt any measures necessary to adapt its laws, procedures and practices to international human rights law. In particular, the Commission is recommending to the Cuban State that it repeal Law No. 88 and Article 91 of its Criminal Code, and that it initiate a process to amend its Constitution to ensure the independence of the judicial branch of government and the right to participate in government.

 

3. Redress the victims and their next of kin for the pecuniary and non-pecuniary damages suffered as a result of the violations of the American Declaration herein established.

 

4. Adopt the measures necessary to prevent a recurrence of similar acts, in keeping with the State’s duty to respect and ensure human rights .[265]

 

191.          According to information received by the IACHR, by 2008, 20[266] victims in Case 12.476 have been released from prison under the Cuban “extrapenal licence” mechanism (parole)[267] on the grounds that they were seriously ill,[268] and Rafael Millet Leyva was released on December 19, 2006.

 

192.          In February 2008, four victims in Case 12.476 received extrapenal licence: José Gabriel Ramón Castillo[269], Pedro Pablo Álvarez, Alejandro González Raga and Omar Pernet, subject to the condition they leave Cuba and go to Spain.  The other victims are still in prison.  The Commission considers that while the release was a positive step, the State has not complied in full with the recommendations contained in Report on Merits 67/06. 

 

193.          Under the American Declaration of the Rights and Duties of Man, all individuals have the right to humane treatment during the time they are in custody.[270] In several of its reports, the Commission has addressed the topic of detention conditions in Cuba.[271] The Commission is of the view that the State’s responsibility with regard to the human treatment of persons held in its custody is not confined to the negative obligation to refrain from practicing torture or mistreating such persons. Since prisons are places where the state has total control over the life of the prisoners, its obligations towards them include the control and security measures required to preserve the life and protect the integrity of persons deprived of liberty.

 

194.          According to information received by the IACHR,[272] the prison authorities – either directly or with the assistance of other convicts -- continue to mistreat political prisoners: they are subjected to beatings and attacks, kept in isolation for long periods, and they are not provided with the medical assistance needed for the illnesses they suffer. In addition, they are held in prisons far away from their home towns in order to make visiting difficult; family visits are restricted or denied; foodstuffs or medicines sent by their relatives are restricted or denied; and they are kept from meeting with officials from international human rights bodies. This leads to a serious deterioration in the physical and/or mental health of imprisoned dissidents.[273] At a public hearing held by the IACHR on October 28, 2008, the former political prisoner Pedro Pablo Álvarez said the following about the prison conditions:

 

We are kept in isolation for thirty-six days, each of us having to share with three other prisoners our four-person cells that were so small that the four of us could not stand up at the same time, lights were on day and night, a minimum ration of food, and subjected to nearly constant interrogation with threats and insults. Later the vast majority of the seventy-five of us were moved to prisons that were far away from our home towns. In my case, I was sent with another seven brothers in the struggle to a prison in Canaleta in the province of Ciego de Avila, some five hundred kilometers from Havana. We were subjected to solitary confinement for one year. The cells were very small – approximately 1.3 meters wide by 2.4 meters long, the head or the provision for physiological needs and bathing were all in the cell. The routine was very strict. Visiting time was every three months and conjugal visits were allowed every five months. The food was terrible, there was hardly any protein. Survival was thanks to the relatives who came every three months at great sacrifice to themselves to bring loads of food. In these cases our families suffer greater punishment because in Cuba, with the scarcity of food and with ever more precarious transportation options, and with the scant financial resources, this task is heroic. On top of all this, the harassment the families of political prisoners are subjected to that, in many cases, includes losing jobs and the government does not allow them to exercise any independent work. In other words, they are refused work permits for self-employment.

 

Once this initial phase is over, the next one begins that is only worse: living in the outposts with all kinds of characters: murderers, rapists, unscrupulous thieves, crazy people and sex maniacs, etc., most of whom are manipulated by the prison authorities and, of course, the government security officers, too. They are sometimes used by security to punish or threaten an inmate.

 

For five years and seven months the torture and mistreatment – sometimes physical and at all times psychological – have been constant. It is not only visited upon the prisoners but also on the prisoners’ families. For example, our children suffer discrimination and insults in school just because they are related to a political prisoner. Our wives and mothers, our fathers, our sisters and brothers and other relatives who take care of us are rejected by members of the community or in their workplaces. Today, some of these men are still being unfairly held in jail hundreds of kilometers from their families, under conditions that endanger their lives and their health. Some of them have chronic illnesses and are not provided medical care, and without medicine and with inadequate nutrition they are unable to get well. This situation is made worse in most of the cases because the prisoners are old and should not be jailed under such subhuman conditions and it becomes more difficult for them to tolerate such a cruel and inhumane prison system.[274]

 

195.          Several of the victims in Case 12.476 have health problems that have emerged or been aggravated during their detention, without the provision of adequate medical care.[275] The IACHR received information on the deterioration of the health in jail of six of the nine trade union members[276] convicted in 2003 for their participation in organizations of the independent Cuban workers movement: Horacio Julio Piña Borrego, Victor Rolando Arroyo Carmona, Adolfo Fernández Sainz, Alfredo Felipe Fuentes, Luis Milán Fernández and Blas Giraldo Reyes.[277]

 

196.          With regard to the health of Blas Giraldo Reyes, according to the information received, he had several health problems, most notably arterial hypertension, hemorrhoids, diabetes, degenerative osteoarthritis with hardening of cartilage, chronic indigestion, kidney and liver problems.[278] The IACHR was informed that Blas Giraldo Reyes Rodríguez was checked into the provincial Camilo Cienfuegos hospital and was later transferred to the prison infirmary and is currently at the outpost.[279]

 

197.          The Commission has previously expressed its concern regarding the large number of convicts who suffer from chronic visual, renal, cardiac and pulmonary ailments and are not given appropriate medical attention, including several prisoners of advanced years. Moreover, the IACHR is aware that the prison authorities prevent the relatives of imprisoned political dissidents from supplying them with medicines needed to treat their illnesses and that are not provided by the Government.

 

198.          The Commission reiterates that the State has not observed the United Nations’ Standard Minimum Rules for the Treatment of Prisoners[280] and the IACHR Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas.[281]

 

199.          In 2008 the Commission has continued to receive information on the grave conditions of arrest suffered by the victims in Case 12.476, especially in the case of Normando Hernández González, director of the Colegio de Periodistas Independientes in Camaguey and Jorge Luis García Paneque, director of the agency Libertad.

 

200.          In the case of Normando Hernández González, according to information received in 2008, he was transferred to the “Carlos J. Finlay” Military Hospital in Havana where he received medical treatment due to the several health complications he had experienced while imprisoned in an isolation cell at prison Kilo 7.[282]  With regard to Jorge Luís García Paneque, the Commission was informed that the prison authorities had continued to deny Mr. García Paneque access to the medicines he needed for his deteriorated health.

 

201.          The Commission has also received reports that Iván Hernández Carrillo from the agency Patria is suffering from chronic illnesses that have worsened due to lack of adequate medical care. In July 2008, journalist Juan Carlos Herrera Acosta started a hunger strike to demand better jail conditions; he sewed his mouth shut in protest. According to information received, his health has also deteriorated since the time of his arrest.[283]

 

202.          The Commission reiterates to the State of Cuba its recommendation that it immediately release the victims in Case 12.476.

 

203.          In addition, with reference to prisoners of conscience not included in the group of the dissidents detained during the so-called “Black Spring” operation, on February 28, 2007 the Commission granted precautionary measures to protect the life and person of Mr. Francisco Pastor Chaviano, who suffered serious injuries to his face and head as a result of beatings meted out by prison guards.[284] At the public hearing on “The Situation of Jails in Cuba”[285] held on July 20, 2007 during the IACHR’s 128th regular session, one of Francisco Pastor Chaviano’s daughters gave testimony on her father’s situation. On August 10, 2007 the Commission was told that Francisco Pastor Chaviano had been released from prison. The IACHR appreciated the decision by the Cuban Government to release Francisco Pastor Chaviano. Nonetheless, the Commission notes that the recourse of release of prisoners for humanitarian reasons continues to be implemented on a discretionary basis without following clear, objective, egalitarian criteria imposed by independent judges.[286]

 

204.          At the same time, the IACHR notes that Mr. Jorge Luis García Pérez Antúnez, imprisoned in 1990, was released from jail on April 22, 2007 upon completion of his entire prison sentence. The IACHR was told that Mr. García Pérez Antúnez suffered frequent beatings at the hands of other inmates and that the authorities had threatened that he would never leave prison alive; for that reason, on November 21, 2006 it granted precautionary measures on his behalf.[287] On July 20, 2008 Mr. García Pérez Antúnez was arrested violently by the political police force in the city of Matanzas. When he was arrested he was with his wife, Iris Pérez Aguilera, and other opponents of the Cuban government, participating in a public protest demonstration against the arrest of activist Mario Pérez Aguilera. 

 

205.          At the same time, the Commission reiterates its concern at what are known as “acts of repudiation” carried out against political dissidents, consisting of harassment and intimidation carried out by members of groups of government supporters such as the Committee for the Defense of the Revolution and the People’s Rapid Response Brigade.[288] These acts ignore the human dignity and liberty owed to all persons, irrespective of their political ideas, and they are in breach of the American Declaration of the Rights and Duties of Man.

 

206.          The Commission received information on the mistreatment that relatives of political dissidents suffer for the mere fact of being related to them. As an example, the Commission was told that the children of political prisoners are discriminated against and insulted at school. Their wives, mothers, fathers, sisters and brothers, and other relatives who take care of the political prisoners are rejected by members of the community or in their workplaces.[289]

 

 

[TABLE OF CONTENTS  |  PREVIOUSNEXT]


 


[204] I/A Court H.R., Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights. Advisory Opinion OC-10/89 of July 14, 1989. Series A No. 10, paragraphs 43-46.

[205] IACHR Statute, Article 20(a).

[206] The complete text of Resolution VI can be found in the “Eighth Meeting of Consultation of Foreign Affairs Ministers to serve as the Advisory Body in applying the Inter-American Reciprocal Assistance Treaty, Punta del Este, Uruguay, January 22-31, 1962, Meeting Documents”, Organization of American States, OAS/Ser.F/II.8, doc. 68, pp 17-19.

[207] IACHR, Annual Report 2002, Chapter IV, Cuba, paragraphs 3-7. See also IACHR Annual Report 2001, Chapter IV, Cuba, paragraphs 3-7. IACHR, Report on the Status of Human Rights in Cuba, Seventh Report, 1983, paragraphs 16-46.

[208] IACHR, Annual Report 2002, Chapter IV, Cuba, paragraph 7.a.

[209] See IACHR, Special Reports for the following years: 1962; 1963; 1967; 1970; 1976; 1983.

[210] See: IACHR, Chapter IV of the Annual Report for the following years: 1990-1991; 1991; 1992-1993; 1993; 1994; 1996; 1997; 1998; 1999; 2000; 2001; 2002; 2003; 2004; 2005; 2006; 2007.

[211] See: IACHR, Report on Merits No. 47/96, Case 11.436, Remolcador “13 de marzo”, October 16, 1996; IACHR, Report on Merits No. 86/99, Case 11.589, Armando Alejandre Jr., Carlos Costa, Mario de la Peña and Pablo Morales, September 29, 1999; IACHR, Admissibility Report No. 56/04, Petition 12.127, Vladimiro Roca Antúnez et al., October 14, 2004; IACHR Admissibility Report No. 57/04, Petitions 771/03 and 841/03, Oscar Elías Biscet et al., October 14, 2004; IACHR, Admissibility Report No. 58/04, Petition 844/03, Lorenzo Enrique Copello Castillo et al., October 14, 2004; IACHR, Report on Merits No. 67/06, Case 12.476, Oscar Elías Biscet et al., October 21, 2006; IACHR, Report on Merits No. 68/06, Case 12.477, Lorenzo Enrique Copello Castillo et al., October 21, 2006.

[212] When notified of an IACHR decision, the Cuban State does not respond or sends a note stating that the Inter-American Commission on Human Rights does not have jurisdiction, and the Organization of American States does not have the moral authority to analyze Cuban matters.

[213] See video of the public hearing on “Situation of imprisoned union members in Cuba” held on October 28, 2008 at: http://www.cidh.org/audiencias/seleccionar.aspx.

[214] See IACHR, Six Report on the Situation of Political Prisoners in Cuba. OEA/Ser.L/V/II.48
Doc.7, Section A. December 14, 1979. Available at http://cidh.org/countryrep/Cuba79eng/intro.htm.

[215] On October 30, 2007 the United Nations General Assembly passed resolution A/RES/62/3 on “The Need to End the Economic, Commercial and Financial Embargo Imposed by the United States of America against Cuba.” See www.un.org.

[216] United Nations and the Ministry for Foreign Investment and Economic Cooperation: Action Plan for the Country Program between the Government of Cuba and the UNDP 2008-2012.   http://www.undp.org.cu/documentos/CPAP_Cuba_2008_2012_PNUD.pdf.

[217] United Nations Population Fund, Status of the World Population 2008.

http://www.unfpa.org/swp/2008/includes/images/odf_swp/notes_indicators_full.pdf

[218] United Nations Population Fund, Status of the World Population 2008.

http://www.unfpa.org/swp/2008/includes/images/odf_swp/notes_indicators_full.pdf.  Inter-Agency Gender Group, Maternal Mortality, gender and development.

http://www.mex.ops-oms.org/documentos/cit/dia_mujer/GIG%20y%20mortalidad%20materna.pdf.

[219] United Nations and the Ministry for Foreign Investment and Economic Cooperation: Action Plan for the Country Program between the Government of Cuba and the UNDP 2008-2012.

http://www.undp.org.cu/documentos/CPAP_Cuba_2008_2012_PNUD.pdf.

[220] Cuba – Conclusions of the Council. The Council has adopted the following conclusions: “The Council takes note of the changes made to date by the Cuban Government. The Council supports the changes as they pertain to liberalization in Cuba and encourages the Government to make them.

The Council has made a call to the Cuban Government to effectively improve human rights by, among others, granting unconditional release to all political prisoners, including those who were detained and convicted in 2003. This continues to be a fundamental priority for the EU. It also makes a call to the Cuban Government to provide international humanitarian organizations with access to Cuban prisons. The Council has also made a call to the Cuban authorities to ratify and apply the International Pact on Civil and Political Rights and the International Pact on Economic, Social and Cultural Rights that were signed recently, and has again urged the Cuban Government to fulfill its commitment to human rights that it showed by signed those human rights Pacts.

The Council has confirmed its renewed commitment to the Common Position of 1996 and the relevance thereof; in addition, it has reaffirmed its determination to continue its dialog with the Cuban authorities, as well as with representatives of civil society and the democratic opposition, in accordance with the policies of the EU, in order to promote respect for human rights and real progress toward a pluralistic democracy. The Council has emphasized that the EU will continue to offer practical support to all sectors of society for peaceful change in Cuba. The EU has redoubled its call to the Cuban Government to grant freedom of information and expression, including Internet access, and has invited the Cuban Government to cooperate in this matter.

The EU reiterates the right of Cuban citizens to make completely independent decisions about their future and remains available to contribute positively to the development of all sectors of Cuban society, as well as through cooperation instruments for development.

As was stated in the Council’s conclusions on June 18, 2007, the EU continues to be willing to resume a global and open dialog with Cuban authorities on all matters of mutual interest. Since June 2007 there have been bilateral ministry level debates between the EU and Cuba on the possibility of initiating such a dialog. This dialog process should include all potential spheres of cooperation, including the political, human rights, economic, scientific, and cultural sectors, and it should be reciprocal, unconditional, non-discriminatory, and aimed at obtaining results. Within the framework of this dialog, the EU shall express to the Cuban Government its point of view on democracy, universal human rights, and fundamental liberties. The Council has reaffirmed that its policy for EU contacts with the democratic opposition continues to be valid. During high level visits, they should always broach topics related to human rights; if appropriate, part of the visits will include meetings with the democratic opposition.

The Council has, therefore, agreed to continue the aforementioned global political dialog with the Cuban Government. In this context, the Council has agreed to lift the 2003 measures that have already been suspended, in order to facilitate the political dialog process and to allow full use of the Common Position of 1996 instruments.

On the occasion of the annual review of the Common Position, the Council shall proceed in June 2009 to evaluate its relationships with Cuba, including the efficacy of the political dialog process. After that date, the dialog shall continue if the Council decides that it has been effective, taking into particular account the elements that are included in the second paragraph of these conclusions.” See: EUROPEAN UNION COUNCIL/10590/08 (Press 169)/ (OR. En)/ PRESS RELEASE/ Session No. 2881 of the Council/ Agriculture and Fishing/ Luxemburg, June 23 and 24, 2008.

http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressdata/es/agricult/101771.pdf

[221] I/A Court H.R. Case of Castañeda-Gutman. Preliminary Objections, Merits, Reparations, and Costs. Judgment of August 6, 2008. Series C No. 184.

[222] I/A Court H.R. Case of Castañeda-Gutman. Preliminary Objections, Merits, Reparations, and Costs. Judgment of August 6, 2008. Series C No. 184, para. 148.

[223]  Article 27 (Suspension of Guarantees), paragraph 2, of the American Convention on Human Rights provides, “The foregoing provision does not authorize any suspension of the following articles: […], and 23 (Right to Participate in Government), or of the judicial guarantees essential for the protection of such rights.” See also, I/A Court H.R., Case of Castañeda-Gutman. Preliminary Objections, Merits, Reparations, and Costs. Judgment of August 6, 2008. Series C No. 184 and I/A Court H.R., The Word "Laws" in Article 30 of the American Convention on Human Rights. Advisory Opinion OC-6/86 of May 9, 1986. Series A No. 6, para. 34; and I/A Court H. R., Case of Yatama. Judgment of June 23, 2005. Series C No. 127, para. 191.

[224] In Chapter 9, “White Book 2007”, published on the official web page of the Cuban Ministry of Foreign Affairs

http://www.cubaminrex.cu/Derechos%20Humanos/Articulos/ConsejoDerechosHumanos/Libro_Blanco/inicio.html

[225] See Chapter 9, “White Book 2007”, published on the official web page of the Cuban Ministry of Foreign Affairs, idem.

[226] Article 3 of the Inter-American Democratic Charter provides that essential elements of representative democracy are the holding of periodic, free, and fair elections based on secret balloting and universal suffrage as an expression of the sovereignty of the people, [and] the pluralistic system of political parties and organizations.

[227] American Declaration, Article XVIII.

[228] American Declaration, Article XXV.

[229] American Declaration, Article XXVI.

[230] American Declaration, Article I.

[231] American Declaration, Article XXV.

[232] American Declaration, Article XXV.

[233] American Declaration, Article XXVI.

[234] I/A Court H.R., Case of Palamara Iribarne. Judgment of November 22, 2005. Series C No. 135, para. 145; Case of Herrera Ulloa, judgement of July 2, 2004. Series C No. 107, para. 171.

[235] I/A Court H.R. Case of Apitz-Barbera et al. (“First Court of Adminstrative Disputes”). Preliminary Objections, Merits, Reparations and Costs. Judgment of August 5, 2008. Series C No. 182, para. 55.

[236] I/A Court H.R. Case of Apitz-Barbera et al. (“First Court of Adminstrative Disputes”). Preliminary Objections, Merits, Reparations and Costs. Judgment of August 5, 2008. Series C No. 182, para. 131.

[237] I/A Court H.R. Case of Palamara Iribarne. Judgment of November 22, 2005. Series C No. 135, para. 146.

[238] ECHR, Piersack v. Belgium, Judgment of 1 October 1982, Series A, Nº 5.

[239] Title X of Law Nº 5 (Law of Criminal Process) passed by the National Assembly of People’s Power of the Republic of Cuba on August 13, 1967, sets out the provisions governing the so-called expedited summary proceeding:

Article 479: Should it be advisable owing to exceptional circumstances, the Attorney General may petition the President of the Supreme People’s Court and the latter order that an expedited summary proceeding be used to prosecute criminal offenses under the jurisdiction of any of the courts of justice, except for those that are under the jurisdiction of the Municipal People’s Tribunals.

Article 480: In expedited summary proceedings the terms set forth in this law for processing preliminary hearings, the oral trial, and appeals are reduced to the extent that the competent court considers necessary.

[240] IACHR, Report on Merits No. 68/06, Case 12.477, Lorenzo Enrique Copello et al., October 21, 2006.

[241] IACHR, Report on Merits No. 68/06, Case 12.477, Lorenzo Enrique Copello et al., October 21, 2006, paragraphs 87-92.

[242] Article 98: 1. Anyone who takes up arms in order to accomplish by force any of the following aims shall be liable to a penalty of 10 to 20 years of imprisonment or death: a) to prevent, albeit temporarily, the superior organs of the State and Government from carrying out any of their functions; b) to change the economic, political, and social regime of the socialist state; c) to change in any way the Constitution or the system of government recognized therein.

2. Anyone who engages in any act to promote armed insurrection, shall be liable to the same penalty if it come about; if not, the penalty shall be four to 10 years of imprisonment.

[243] Article 120: 1. A penalty of 10 to 20 years of imprisonment or death shall be imposed on any persons who, in order to bring about or maintain the domination by one racial group of another, and in pursuit of policies of extermination, segregation, and racial discrimination: a) deny the members of the latter group the right to life and freedom through murder; gross assault on their physical or psychological integrity, liberty, or dignity; torture or cruel, inhuman, or degrading punishment or treatment; arbitrary detention and unlawful imprisonment; b) impose on the group any measures of a legislative or other nature designed to impede their participation in the political, social, economic, and cultural life of the country and to deliberately create conditions that obstruct their full development, refusing their members fundamental rights and liberties; c) divide the population according to racial criteria, creating reservations and ghettos, prohibiting marriage between members of different racial groups, and expropriating their property; ch) exploiting the members of the group as a labor force, in particular by subjecting them to forced labor.

1. 2. If the act consists of persecuting or otherwise harassing organizations and persons who oppose or combat apartheid, the penalty shall be 10 to 20 years of imprisonment.

2. 3. Liability for the acts provided in the preceding paragraphs is enforceable irrespective of the country in which the culprits act or reside and its scope, regardless of the motive, includes private individuals, members of organizations and institutions, and representatives of the State.

[244] Cuban Criminal Code, Article 190.

[245] Cuban Criminal Code, Article 263.

[246] Cuban Criminal Code, Article 298.

[247] Cuban Criminal Code, Article 299.

[248] Cuban Criminal Code, Article 310.

[249] Cuban Criminal Code, Article 327.

[250] According to the State of Cuba, the death penalty is imposed in exceptional circumstances and only for the most serious crimes.  The Cuban Criminal Code provides as follows:

Article 29.1. The death penalty is exceptional in nature and shall only be imposed by the court in the most serious cases that involve offenses for which it is provided.

2. The death penalty shall not be imposed on persons under 20 years of age or on women who were pregnant when they committed the crime, or who are pregnant at the time of sentence is passed.

3. The death penalty is carried out by firing squad.

[251] Cf. Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American Convention on Human Rights), supra note 7.

[252] Cf. Case of Hilaire, Constantine and Benjamin et al. Merits, Reparations and Costs. Judgment of June 21, 2002. Series C No. 94, para. 106, and Case of Raxcacó Reyes, supra note 37, para. 68. See also Restrictions to the death penalty (Arts. 4(2) and 4(4) American Convention on Human Rights), supra note 7, para. 55.

[253] Cf. Case of Hilaire, Constantine and Benjamin et al., supra note 42, paras. 103, 106 and 108, and Case of Raxcacó Reyes, supra note 37, para. 81. See also Restrictions to the death penalty (Arts. 4(2) and 4(4) American Convention on Human Rights), supra note 7, para. 55.

[254] I/A Court H.R., Case of Boyce et al. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 20, 2007. Series C No. 169, par. 50. Cf. I/A Court H.R., Case of Fermín Ramírez, supra note 37, para. 79. See also Restrictions to the death penalty (Arts. 4(2) and 4(4) American Convention on Human Rights), supra note 7, para. 55, and The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law.  Advisory Opinion OC-16/99 of October 1, 1999. Series A No. 16, para. 135.

[255] Statement of Elizardo Sánchez, president of the Cuban Commission on Human Rights and National Reconciliation. See http://ipsnoticias.net/nota.asp?idnews=88250

[256] See: Speech of the Second Secretary of the Central Committee of the Cuban Communist Party, Raúl Castro Ruz, conclusions of the VI Plenary of the Central Committee of the CCP, which took place in the Palace of the Revolution, Havana, April 28, 2008. http://www.cubaminrex.cu/archivo/Raul/2008-04-28.htm.

[257] Cuban President Raul Castro added in this regard: “What they will receive, as applicable, is life imprisonment except for those that committed their crime prior to the establishment of this punishment in the Criminal Code, to whom will apply a sentence of 30 years in prison. Some convicts spent several years waiting for the State Council to make their pronouncement.

This situation has been caused primarily by the policy that has been in effect since 2000 of not imposing any punishment of this type that was interrupted in April 200316 [sic] to put an immediate stop to the wave of over 30 attempts and plans to hijack planes and boats that were encouraged by United States policy during the war they recently initiated in Iraq.

Most of the convicts committed the most serious of common crimes, essentially, against life. They are crimes for which, if we were to re-try them, it would be difficult not to impose the same sentence. We also know that the majority opinion of our people in these cases is in favor of keeping it.

We have three defendants whose cases are still awaiting appeal before the People’s Supreme Court that will be heard soon.

One Salvadoran and one Guatemalan, for terrorist acts in the bombing of hotels in 1997, one of which caused the death of Italian tourist Fabio di Celmo, both financed and orchestrated by the infamous criminal Luis Posada Carriles, who, today, walks free in the streets of Miami.

We also have the case of a Cuban from the United States, who murdered comrade Arcilio Rodríguez García during the infiltration of an armed terrorist commando in the Caibarien zone.

I can only state that among our prerogatives the final decision of the State Council will not contradict the aforementioned policy. I am talking about the three cases mentioned earlier. [...]

It does not mean that we should eliminate capital punishment from the Criminal Code. On several occasions we have discussed the subject and the prevailing criterion has always been that under current circumstances we cannot disarm ourselves given an empire that does not cease to harass and assault us. [...]

Even though our laws provide for the death penalty, because of the specific reasons that have been explained and fully justified, Cuba understands and respects the arguments of the international movement in favor of its abolishment or moratorium. That is why our country has not voted against such initiatives at the United Nations.

See: Speech of the Second Secretary of the Central Committee of the Cuban Communist Party, Raúl Castro Ruz, conclusions of the VI Plenary of the Central Committee of the CCP, which took place in the Palace of the Revolution, Havana, April 28, 2008. http://www.cubaminrex.cu/archivo/Raul/2008-04-28.htm

[258] The Government of Cuba denies the term “dissidents” in reference to the victims of Case 12.476. In the report entitled “White Book 2007” published on the official web page of the Cuban Ministry of Foreign Affairs, it says: “The campaign that persists even now, in which several governments that are customers of the empire have cynically, actively and complicitly joined, has utilized sophisticated methods of false information developed by the Nazi-fascist services, repeatedly referring falsely to the mercenaries who were justly punished as “dissidents”, “peaceful political opposition”, “Human Rights Defenders” or “independent journalists, librarians and unionists.” The intent is to make it look like the mercenaries had been punished “arbitrarily and unfairly” for the simple act of “peacefully exercising their rights of freedom of expression, opinion and association.” See “White Book 2007” as cited.

[259] Statement of Pedro Pablo Álvarez at the public hearing before the IACHR on the “Situation of imprisoned union members in Cuba,” held on October 28, 2008. Available at: http://www.cidh.org/audiencias/seleccionar.aspx.

[260] Statement of Pedro Pablo Álvarez at the public hearing before the IACHR on the “Situation of imprisoned union members in Cuba,” held on October 28, 2008. Available at: http://www.cidh.org/audiencias/seleccionar.aspx.

[261] The Cuban State and the petitioners’ representatives were notified of the Report on Merits No. 67/06 on November 1, 2006. See IACHR, Press Release No. 40/06, “IACHR announces two reports on Human Rights violations in Cuba” dated November 1, 2006.

[262] Section 91 of the Cuban Criminal Code: Any person who, in the interest of a foreign Government, commits an act for the purpose of diminishing Cuba’s governmental independence or territorial integrity, shall be subject to punishment of no less than ten to twenty years of imprisonment or death.

[263] Statement of Pedro Pablo Álvarez at the public hearing before the IACHR on the “Situation of imprisoned union members in Cuba,” held on October 28, 2008. Available at: http://www.cidh.org/audiencias/seleccionar.aspx.

[264] See complete report at http://www.cidh.org.

[265] See complete report at: http://www.cidh.org.

[266] In 2004, the following persons were granted extrapenal licence: Osvaldo Alfonso, Margarito Broche Espinosa, Carmelo Díaz Fernández, Oscar Espinosa Chepe, Orlando Fundadora Álvarez, Edel José García Díaz, Marcelo López Bañobre, Roberto de Miranda, Jorge Olivera Castillo, Raúl Rivero Castañeda, Martha Beatriz Roque Cabello, Julio Valdés Guevara, Miguel Valdés Tamayo (died January 10, 2007), Manuel Vásquez Portal. In 2005, Mario Enrique Mayo Hernández and Héctor Palacio Ruiz were granted extrapenal licence. In 2008, José Gabriel Ramón Castillo, Pedro Pablo Alvarez, Alejandro González Raga and Omar Pernet were granted extrapenal licence.

[267] The Criminal Code of Cuba provides: “Section 31.2: The sentencing court may grant persons sentenced to prison extra-penal license for the duration deemed necessary, when there is good reason and subject to the filing of an application. It may also be granted by the Ministry of the Interior, in extraordinary cases, provided notice is given to the President of the People’s Supreme Court.” “Section 31.4: The duration of extra-penal licenses and of furloughs from the detention facility shall be credited to the duration of the prison sentence provided that the recipient of the benefit, during the time the license or furlough is in force, displays good behavior. The reductions of sentence granted to the convict during his or her service of the sentence shall also be credited to its duration.”

[268] See: Video of public hearing on “Case 12.476 Oscar Elías Biscet et al., Cuba (follow-up of recommendations)” held on October 10, 2007, cited above. According to the State of Cuba, for “strictly humanitarian” reasons, 16 persons were granted extra-penal license. See: Chapter 5, “White Book 2007,” published on the official web page of the Cuban Ministry of Foreign Affairs, cited above.

[269] On November 7, 2006 the IACHR received a request for precautionary measures lodged on behalf of José Gabriel Ramón Castillo. According to the request, he was at imminent risk, he was not being given food or medical attention. The request also reported that he was being physically mistreated and he was not being allowed to receive medications that his family brought for him. On November 22, 2006 the IACHR asked the State to release him and to take any protective measures necessary until his release. IACHR, Annual Report 2006, Chapter IV, paragraph 67.

[270] American Declaration, Article XXV.

[271] IACHR, Annual Report 1995, Chapter V, paragraph 71; IACHR, Annual Report 1994, Chapter IV, page 168; IACHR, Annual Report 2004, Chapter IV, paragraphs 59-66; IACHR, Annual Report 2005, Chapter IV, paragraphs 76-81; IACHR, Annual Report 2006, Chapter IV, paragraphs 65-70.

[272] Latin American Commission for Human Rights and Freedoms for Workers and Peoples. Information presented to the IACHR during a public hearing on “The situation of union members deprived of liberty in Cuba” held on October 28, 2008; The New Herald, published on August 21, 2008.

[273] Latin American Commission for Human Rights and Freedoms for Workers and Peoples. Information presented to the IACHR in a public hearing on “The situation of union members deprived of liberty in Cuba” held on October 28, 2008; The New Herald, published on August 21, 2008.

[274] Statement of Pedro Pablo Álvarez at the public hearing before the IACHR on the “Situation of imprisoned union members in Cuba,” held on October 28, 2008. Available at: http://www.cidh.org/audiencias/seleccionar.aspx.

[275] Latin American Commission for Human Rights and Freedoms for Workers and Peoples. Information presented to the IACHR in a public hearing on “The situation of union members deprived of liberty in Cuba” held on October 28, 2008; The New Herald, published on August 21, 2008.

[276] The trade unionists tried and convicted in 2003 are: Pedro Pablo Álvarez Ramos, Horacio Julio Piña Borrego, Victor Rolando Arroyo Carmona, Adolfo Fernández Sainz, Alfredo Felipe Fuentes, Luis Milán Fernández, Blas Giraldo Reyes Rodríguez, Carmelo Díaz Fernández and Oscar Espinosa Chepe. Pedro Pablo Álvarez Ramos, Carmelo Díaz Fernández and Oscar Espinosa Chepe were the beneficiaries of medical parole. See the video of the public hearing on “The situation of union members deprived of liberty in Cuba” held on July 20, 2007, cited above.

[277] Latin American Commission for Human Rights and Freedoms for Workers and Peoples. Information presented to the IACHR in a public hearing on “The situation of union members deprived of liberty in Cuba” held on October 28, 2008; The New Herald, published on August 21, 2008.

[278] Latin American Commission for Human Rights and Freedoms for Workers and Peoples. Information presented to the IACHR in a public hearing on “The situation of union members deprived of liberty in Cuba” held on October 28, 2008. The New Herald, published on August 21, 2008.

[279] Latin American Commission for Human Rights and Freedoms for Workers and Peoples. Information presented to the IACHR in a public hearing on “The situation of union members deprived of liberty in Cuba” held on October 28, 2008.

[280] The Inter-American Commission has indicated on numerous occasions that the United Nations’ Standard Minimum Rules for the Treatment of Prisoners can be understood to mean adequate references to minimum international standards for the humane treatment of inmates, including the basic standards of housing, hygiene, medical treatment and physical exercise. See IACHR, report No. 27/01, case 12.183, Jamaica, paragraph 133; report No. 47/01, case No. 12.028, Grenada, paragraph 127; report No. 48/01, case 12.067, Bahamas, paragraph 195; report No. 38/00, case No. 11.743, Grenada, paragraph 136.

[281] IACHR, Resolution 1/08, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas.

[282] Human Rights First. Human Rights Defenders Cases-Cuba. http://www.humanrightsfirst.org/defenders/ hrd_ cuba/hrd _cuba_gonzalez.htm.

[283] RWB. “On the Eve of the Legislative Session, Reporters Without Borders Recalls the Dramatic Fate of Incarcerated Journalists.” Published on January 17, 2008. Available at: http://www.rsf.org/article.php3?id_article=25094. PEN/IFEX. “Journalist Normando Hernández González Removed from Hospital, Returned to Prison, Held in Complete Isolation in Life-Threatening Conditions”. Published on May 20, 2008. E-mail received from the Office of the Special Rapporteur for freedom of Expression. CPJ. “The CPJ is Concerned for the Health of an Imprisoned Cuban Journalist on Hunger Strike.” Published on July 30, 2008. Available at: http://cpj.org/2008/07/cpj-concerned-about-health-of-imprisoned-cuban-jou.php. RWB. “Reporters Without Borders Concerned for the Health of a Journalist Who Has Been in Prison for Five Years.” Published on August 1, 2008. Available at: http://www.rsf.org/article.php3?id_article=28038.

[284] Precautionary measures number 19-07 on behalf of Francisco Pastor Chaviano were granted by the IACHR on February 28, 2007. According to information received by the IACHR, the beneficiary was the target of serious injury to his face and head due to attacks and beatings at the hands of prison guards. In addition, the IACHR was informed that Mr. Chaviano suffers from a duodenal ulcer, arthritis, and respiratory problems, as a direct result of the detention conditions in which he is being held. In addition, in February 2007, the beneficiary’s wife announced that he had been diagnosed with a 70% obstruction of the arteries and ischemia which, if not addressed through surgery could, in conjunction with his aggressive pulmonary tumor, lead to his death in prison.

[285] See: video of public hearing on “The situation of union members deprived of liberty in Cuba” held on July 20, 2007, cited above.

[286] IACHR, Annual Report 2007, Chapter IV, Cuba, paragraph 118.

[287] Precautionary measures number 306-06 on behalf of Jorge Luis García Pérez Antúnez were granted by the IACHR on November 21, 2006.

[288] The Committees for Defense of the Revolution emerged in 1960 and constitute the largest mass organization in Cuba. The People’s Rapid Response Brigades were created in 1991. The task of both is to collectively oversee activities deemed to be counter-revolutionary and to confront any supposed sign of opposition to the government. See http://www.amnesty.org/en/library/asset/AMR25/001/2006/en/dom-AMR250012006es.pdf, http://www.vanguardia.co.cu/index.php?tpl=design/secciones/lectura/historia.tpl.html&newsid_obj_id=8571, http://www.tiempo21.cu/hipertextos/comites_defensa_revolucion.htm.

[289] Testimony of Pedro Pablo Álvarez before the IACHR in a public hearing on “The situation of union members deprived of liberty in Cuba” held on October 28, 2008; Latin American Commission for Human Rights and Freedoms for Workers and Peoples. Information presented to the IACHR in a public hearing on “The situation of union members deprived of liberty in Cuba” held on October 28, 2008; The New Herald, published on August 21, 2008.