ANNUAL REPORT 2009

CHAPTER IV

HUMAN RIGHTS DEVELOPMENTS IN THE REGION

CUBA

 (Continuation)

4.         Restrictions to the rights to residence and movement

284.          The American Declaration on the Rights and Duties of Man stipulates that: “Everyone has the right to choose his residence in his country, the right to freedom of movement within the borders of his territory, to move freely within such territory, and not to leave it except by his own will.”[408] Although the American Declaration does not explicitly state that every person has the right to return to his country, the Commission considers that this right is implicitly recognized in this instrument. Likewise, the IACHR has sustained that "The right of every person to live in his own country, to leave it and return to it at will […]” is an elementary right that "is recognized in all international instruments related to the protection of human rights."[409] In effect, Article 13 of the Universal Declaration of Human Rights (2) provides that "Anyone has the right to leave any country, including his own, and to return to it."

285.          The IACHR indicated earlier that according to the texts quoted, there is a relationship between the right of residence and movement and the right of nationality. The latter is recognized by Article XIX of the American Declaration, and the Commission has referred to its essential applicability, condemning situations in which the right to nationality is violated as a result of the government’s action against its political adversaries.[410]

286.          Likewise the IACHR considers that in with regard to the right to residence and transmit, its exercise can in no way deprive a person from his or her nationality and that this sanction, if imposed for that reason, would be illegitimate; so that in this case, the loss of nationality could not be alleged by any government to prevent a person from returning, in any capacity, to his country of origin.[411].

287.          The Commission observes that in Cuba the right of residence and movement is not covered by the constitution, which is a shortcoming that the commission regrets[412]. Moreover, the IACHR notes that Article 216(1) of the Criminal Code of Cuba establishes that those who leave the national territory or engage in acts aimed at leaving the national territory without complying with the legal formalities is subject to a sanction of deprivation of liberty of one to three years or a fine of 1,000 quotas.[413]

288.          The IACHR observes that Law No. 989 of December 5, 1961, mandated the nationalization by confiscation in favor of the Cuban State of all the assets, rights, shares, and securities of persons who definitively leave Cuban territory. In addition, by joint resolution of August 22, 1995[414] it was ordered that in those cases in which the dwelling has occupants with a right to it, the inventory shall be taken with the property of the emigrant, mindful of the sworn statement and those assets that have patrimonial value for the State. Accordingly, movable property, equipment, home appliances, objects, and domestic and personal items that have no patrimonial value shall be offered without any payment to the occupant or occupants recognized to have the right to acquire property rights to the real property. The provision also notes that if the assets are part of the community property and the spouse who did not emigrate is not assigned housing for failure to meet the requirement of time of living together, he or she will be offered the option to buy them, for the value of the emigrant’s share, with a 75% discount on their value. In addition, if the inventory includes assets with patrimonial value and the non-emigrating spouse proves that they were acquired during the marriage, he or she will be offered the option to buy for the value of the emigrant’s share without any discount.[415]

289.          Likewise, the citizens of Cuba require an official permit to leave and enter the country. With regard to entries into the country, citizens must have taken out their passport. This means having a permit to return to Cuba, which, subject to authorization by the migratory authorities, enables the passport holder to travel to the country while his or her passport is in force. As of June 1, 2004, citizens residing permanently abroad who are classified as emigrés, may travel to Cuba with a valid Cuban passport, without the need for an entry permit. However, to validate the passport, a request must be made expressly to the consular office. The IACHR was informed that there is no specific term for granting the authorization, which results in long waits to obtain a validation Cuban citizens who left their country prior to January 1, 1971 and wish to travel to the country on the passport of the country they live, in must request a permit to enter Cuba.

290.          According to the migration law, a Cuban passport is valid for two more years, renewable for two more years, twice running[416]. The Commission noted that the fee charged when applying for a passport, given the average income in Cuba, is fairly high, approximately US$ 50, plus the departure payment, which comes to US$ 150, plus additional costs depending on the reason for the departure[417] and for those Cubans who wish to process their passport abroad, the figures range from US$ 230 to US$ 350.

291.          Further, anyone who, having held Cuban citizenship, requests to enter the country as a holder of a foreign passport, when applying for an entry visa, must provide documentary proof from a competent authority that his or her that his or her Cuban citizenship has been lost. Without that requisite, the visa to enter Cuba as a foreigner will not be issued. According to the information received, in practice it is very difficult to obtain documentary proof of the loss of Cuban citizenship which means that in practice these people cannot enter the country.

292.          According to the migratory police, only women over 60, men over 65 and minors under 16 years of age, who want to and qualify to return Cuba permanently, may apply for permission to do so, [418] which severely restricts the possibility of citizens of other ages returning to the country.

293.          As regards international migration, the IACHR received information indicating that the government has been taking more drastic measures against the movement of citizens within Cuba, through more forceful application of Decree 217 of April 22, 1997, which regulates internal migration to Havana.[419] According to the Decree, people from other territories who wish to live in Havana must apply to the President of the Council of Municipal Administration of the place they currently live, who will decide whether or not the applicant meets the requisites. Article 8 of the decree provides that anyone who infringes the internal migratory regulations, who or who resides or lives permanently in Havana without having the right to do so, is liable to a fine of 300 pesos and must return immediately to his or place of origin[420].

294.          While the IACHR recognizes that internal migration in Cuba is part of an international pattern of persons seeking better living conditions, the IACHR received information that indicates that the restrictions on internal migration mainly harm Cubans who are Afrodescendants and in poverty, who live in rural areas. As a result, some discrimination results between the white population that lives mostly in the cities, and the Afro-Cuban population, which seeks to migrate to the western provinces in search of better job opportunities. On this topic, at the hearing held during the 137^th period of sessions, the persons requesting the hearing told the IACHR:

The problem in terms of discrimination is that the people from the eastern provinces are poorer and their social situation is worse than in the west, and most of that population is Afrodescendant. All this migration to other countries generates tension between the population that is doing better, generally white population living in urban areas of the western provinces, and those who are from the poorest provinces, mostly rural, the majority of whom are Afrodescendants. And then this situation is stirring up old prejudices and discrimination connected to Cuba’s current reality. One of the mistakes of these 50 years was thinking that one could abolish discrimination by decree alone, it’s a deep-rooted cultural phenomenon that was never addressed, and therefore it is returning strongly in many ways, this being one manifestation, connected with all the internal social problems.[421]

In the internal figures…, these are figures from the national statistics office of the Cuban government … which I take as valid….  If you see in the figure for the western provinces for internal migration shows an increase in those provinces and you see how in the eastern provinces, which Mr. Blanco mentioned, where the population is mostly of Afro-Cuban origin, it is much less, in other words there’s an exodus of this population to the capital, and hence implementation of the regulation, I think it is 277 or 107, on that control of movement with a backdrop of racial discrimination. Moreover, in Havana one identifies these immigrants who come from the interior pejoratively, they call them “the Palestinians,” that is, when you hear a Cuban talking and he say’s “that’s a Palestinian” it’s someone from the eastern provinces, almost always Black, who has moved to Havana. And why do they come to Havana? Because there are more possibilities and really the treatment they’ve been given … nowadays 50 years after the revolution, marginal neighborhoods are cropping up in the city of Havana.[422]

295.          The decree contains a special provision for reducing to the absolute minimum  the temporary or definitive stay in Havana, of people from other parts of the world in relation to activities or tasks connected with other bodies and their dependencies and other subordinated entities. The Ministry of Labor and Social Security and the Ministry of Education will exercise control over the provisions of the decree when a worker in the first case and a student in the second, travels from other parts of the country to Havana.

296.          The Ministry of the Interior and the Council of the Provincial Administration of Havana, as well as the other bodies of the State’s Central Administration, are authorized, within the framework of their respective legal attributions, to issue any complementary provisions they consider necessary for the enforcement of the Decree.

5.         Restrictions to the Freedom of Expression 

297.          The situation of freedom of expression in Cuba in 2009 has changed very little in recent years, and is the reason why the Commission has systematically pointed out that Cuba is the only country in the Americas where it can be systematically affirmed that there is no freedom of expression.

298.          The following paragraphs indicate some of the problems that occur in Cuba in the exercise of the right to freedom of expression.

a.         Detentions

299.          As in previous annual reports, the Commission reiterates its concern over the fact that in Cuba there continue to be more than 20 political prisoners[423], most of them detained after the incident known as “Black Spring,” which occurred in March 2003, when the government jailed 75 political dissidents. Some of the journalists detained are in poor health due to the conditions in which they are held. According to information received by the Commission, Cuba is the country of the Americas with the largest number of journalists detained, due to the failure to observe the right to freedom of expression.[424]

300.          According to the information received, on March 1, 2009, Roberto de Jesús Pérez Guerra, director of independent press agency Hablemos Press, was arrested by security agents when leaving his home. The journalist spent four days in preventive detention, during which time he was interrogated to find out whether he was connected with the appearance of anti-Castro posters in the Old Havana district of Havana[425].

301.          The IACHR expressed its concern about the three-year prison sentence ordered for Alberto Santiago Du Bouchet, a reporter for the Habana Press news agency, after a summary trial as indicated above, held on May 12, 2009 in Cuba. According to information received, Du Bouchet, who covered social issues for his news agency, was detained on April 18, 2009 in Artemisa, when visiting relatives. According to information published by NGO’s, the police alleged that the reporter was shouting anti-government slogans in the street. On May 12, 2009, in a summary trial in which the journalist was not allowed to be represented by  a lawyer, Du Bouchet was sentenced to three years in prison on charges of “disrespect” and distributing “enemy propaganda.” The journalist has spent one year in prison for “disrespect for authority” after a summary trial and sentencing in August 2005[426].

302.          Information was also received that graphic reporter, María Nélida López Báez, from the Hablemos Press Information Center, was arrested on June 16, 2009 by members of the Political Police. Three days later, according this information, she was freed. The photographer declared that while under arrest she was interrogated several times as to whether she had any connections with adversaries of the regime. The journalist had already been detained on May 1, 2009, accused of having information about the people who had hung banners, according to the information received[427].

303.          The Inter-American Commission noted that journalist Pablo Pacheco Ávila, detained since 2003 and sentenced 20 years in prison, was granted a 24-hour permit. According to information received, Pacheco Ávila was able to be reunited with her family and friends during this time. The information added that the permit was granted for good conduct[428].

304.          However, as in previous annual reports, the Commission reiterates its concern about the fact that there are still over 20 journalists in prison in Cuba[429], the majority of them arrested after the incident known as “Black Spring,” in March 2003, when the government sent 75 political dissidents to jail.

305.          Article 13 of the American Convention provides that: “Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive and impart information and ideas of all kinds, regardless of international borders, either orally, in writing, in print, in the form of art, or through any medium of one’s choice.”

306.          To that effect, the IACHR recalls the fact that Principle 9 of the Declaration of Principles on Freedom of Expression states that intimidation and threats, among other things, violate the fundamental rights of individuals and "strongly restrict freedom of expression.” The IACHR understands that detention and the subsequent restrictions and intimidations to which reporters were subjected are clear forms of restricting journalistic work and, hence, the exercise of freedom of expression.

b.         Restrictions to the use of the Internet

307.          The restrictions to freedom of access to information continue to give the Commission cause for concern. These restrictions partly affect the ability to obtain information from different and continuous sources on the subject of freedom of expression, and they hamper efforts to record both violations of this right, and any progress that may have been made in guaranteeing its exercise.

308.          According to the information received, among other things, these restrictions make it hard for Cubans to have Internet access. According to non-governmental organizations, Cuba continues to be one of the countries where Internet access is difficult for the general population. According to the Committee for the Protection of Journalists (CPJ), “judging only from government figures, Cuba is the country with the lowest rate of Internet  access in the Americas”[430].  According to official reports from the National Office of Statistics, 13% of the Cuban population has Internet access, but independent journalist sustain that the information is exaggerated and really the figure is lower[431].

309.          According to the information received, there are public connections available at government-controlled cybercafés and at hotels, but the cards or passes for using these Internet connections are expensive and can be hard to find[432]. Bloggers[433] use these public connections or those of foreign institutions, for instance, to publish their blogs. However, according to information received, access to blogs that contain critical or dissident information is usually blocked on the island[434].

310.          Despite the legal and technical obstacles in Cuba that prevent people from connecting to the Internet, the number of Cuban bloggers is growing although it continues to be highly scarce. According to information received from independent organizations that have studied the subject, there are now around 25 independent and journalistic blogs in Cuba that are produced by Cuban citizens, plus another 75 independent blogs that focus on news and information of a more personal or a family nature[435]. They also revealed that the sites of independent bloggers are frequently blocked by Cuban government officials. Additionally there are around 200 blogs that function with the permission of the Havana government and are produced by journalists who work for the Cuban regime, according to the website of the government-controlled Union of Cuban Journalists[436].

311.          Resolution 179/2008, signed in October 2008, established rules for providers of Internet access services to the public, which are offered in the Internet areas. These are located in hotels, post offices and other entities around the country and offer browsing and national and international e-mail services to individuals[437]. The IACHR noted in particular that one of the provisions stipulates that providers have the following obligation: “Prevent access to sites where the content is contrary to social interests, morals or good custom, as well as the use of applications that affect the integrity or security of the State.” Another point in that provision states that: “Providers must comply with the provisions issued by the country’s Defense Bodies in exceptional situations, and take immediate action to ensure the guarantee the defense and security of the State.” Article 21 of the Resolution 179/2008 states that the sanction applicable to providers who fail to comply with the rules is suspension or permanent cancellation of the operating licenses, or suspension or permanent cancellation of the services and contracts signed with the Provider of Public Internet Access and Data Transmission Services[438].

312.          Resolution 55/2009, in force since June 2009, established the same rules for what are known as Public Service Providers of Accommodation, Hosting and Applications[439]. According to this resolution, the rules apply to Cuban companies that have received a license to operate as Public Internet Access Service Providers, including those that rent space so that a client can set up his or her own computer; companies that provide a site hosting service, applications and information; and companies that provide third party applications services.

313.          The IACHR pointed out that the Internet “is a mechanism capable of strengthening the democratic system, contributing towards the economic development of the countries of the region, and strengthening the full exercise of freedom of expression. Internet is an unprecedented technology in the history of communications that facilitates rapid transmission and access to a multiple and varied universal data network, maximizes the active participation of citizens through Internet use, contributes to the full political social, cultural and economic development of nations, thereby strengthening democratic society. In turn, the Internet has the potential to be an ally in the promotion and dissemination of human rights and democratic ideals and a very important instrument for activating human rights organizations, since its speed and amplitude allow it to send and receive information immediately, which affects the fundamental rights of individuals in different parts of the world”[440].

314.          Further, information was received which indicates that the government of Cuba refused permission for Cuban blogger Yoani Sánchez to travel to New York to receive the “María Moors Cabot 2009” prize from Columbia University on October 13, 2009. According to the information received, this is the fourth time the Cuban government has refused to allow Sánchez to travel outside Cuba[441].

315.          The Commission wishes to stress Principle 4 of the Declaration of Principles on Freedom of Expression, which provides that “access to information held by the State is a fundamental right of every individual.  All States have the obligation to guarantee the full exercise of this right.”

316.          The Commission also pointed out that Principle 5 of the Declaration of Principles on Freedom of Expression provides that: “Prior censorship, direct or indirect interference in or pressure exerted upon any expression, opinion or information transmitted through any means of oral, written, artistic, visual or electronic communication must be prohibited by law. Restrictions to the free circulation of ideas and opinions, as well as the arbitrary imposition of information and the imposition of obstacles to the free flow of information violate the right to freedom of expression.”

c.         Aggression and threats

317.          The IACHR also received information according to which some journalists who do not support the Cuban government have been threatened and beaten by the State security forces.

318.          Journalist Álvaro Yero Felipe, was reportedly beaten by members of the public security forces on April 5, 2009. According to the information received, Yero Felipe was intercepted by political police agents when he was on his way to a meeting in support of political prisoners. The information indicates that the journalist was taken to somewhere in the vicinity of Parque Lenin where he was beaten. The beating caused bruising to his face, mouth injuries and fractured his nose[442].

319.          The IACHR received information according to which bloggers Luis Felipe González Rojas and Yosvani Anzardo Hernández, from the Province of Holguín, were severely beaten by the State security forces during a raid on September 10, during which their personal computers and cell phones were confiscated. While González Rojas was freed 4 hours later, Anzardo Hernández remained in custody for 14 days[443].

320.          The Commission also received information according to which Yoani Sánchez and other bloggers were detained and beaten in Havana by plainclothes members of the security forces on November 6, 2009, as they were on their way to participate in a protest against the violence. According to the information, Sánchez and the bloggers were intercepted by three members of the State Security forces, who had forced them to get into two cars, where – for 20 minutes – they mistreated them “physically and verbally” according to Sánchez herself on her blog, Generación Y.^[444]

321.          The Commission points out that Principle 9 of the Declaration of Principles on Freedom of Expression states that intimidation and threats, among other things, violate the fundamental rights of individuals and "strongly restrict freedom of expression.” The Office of the Special Rapporteur understands that detention and the subsequent restrictions and intimidations to which reporters were subjected are clearly ways of restricting journalistic work and, hence, the exercise of freedom of expression.

322.          Celebrity journalist and radio show host Javier Ceriani, of Argentine nationality, reported that he was violently removed from the Peace without Borders concert given by Colombian singer Juanes on September 20 in Havana by agents from Cuba’s state security forces, shortly after unfolding a banner with the word “Freedom.” Ceriani reported that he was taken to a room in the Hotel Vedado by agents who forced him remain there for several hours in isolation until the concert was over[445].

323.          The IACHR also pointed out that Principle 9 of the Declaration of Principles on Freedom of Expression provides that: “The murder, kidnapping, intimidation of and/or threats to social communicators, as well as the material destruction of communications media violate the fundamental rights of individuals and strongly restrict freedom of expression. It is the duty of the state to prevent and investigate such occurrences, to punish their perpetrators and to ensure that victims receive due compensation.”

324.          The IACHR also pointed out that Principle 1 of the Declaration of Principles on Freedom of Expression states that: “Freedom 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.”

325.          While Principle 2 states that: “Every person has the right to seek, receive and impart information and opinions freely under terms set forth in Article 13 of the American Convention on Human Rights. All people should be afforded equal opportunities to receive, seek and impart information by any means of communication without any discrimination for reasons of race, color, sex, language, religion, political or other opinions, national or social origin, economic status, birth or any other social condition. ”

6.         Human Rights Defenders

326.          The IACHR has continued to receive information about some acts of harassment against women who belong to the “Ladies in White” collective[446].  According to information received, State Security agents tried to prevent several members of the collective from taking part in an e vent held on March 8, 2009 in Havana on the occasion of International Women’s Day. During the events, Maritza Castro, Ivonne Mayesa Gallano and Neris Castillo were arrested, while other representatives were prevented from leaving their homes to attend the event[447].

327.          According to reports, on February 19, 2009, Maritza Castro and Ivonne Mayesa Galano were arrested at Calzada de Buenos Aires in San Julio y Durege, in the Cerro municipality of Havana[448]. From there they were taken to the Fourth Police nit of the Cerro municipality where they were interrogated for more than three hours. According to the information received, the interrogation was based on the fact that they belonged to a group that accompanied Noelia Peraza Jiménez on February 18, 2009, opposite the “Carlos J. Finlay” Military Hospital, to express solidarity for her husband, prisoner of conscience, Sigler Amaya[449], who is still in that hospital. The “Ladies in White” also demanded to be given the diagnosis on the activist. On that same day, Maritza Castro and Ivonne Mayesa were forcibly put on a bus and beaten and pushed by agents, who then took them to their homes[450].

328.          According to information received, on February 10, 2009, Adriana Montoya Aguilar, also a member of “Ladies in White,” was visited at her home by an agent of the State Security Department, who forbade her from going to the Church of Santa Rita de Casia, one of the places where this collective often meets[451].

329.          The IACHR expresses its concern over the difficult situation faced in Cuba which hampers the ability to report to the international community on the situation of human rights in the country, due among other things, to possible reprisals. Additionally, the IACHR is finding it hard to send communications to Cuban residents due to information denouncing harassment against citizens by government authorities for receiving communications from this body.

330.          Therefore the IACHR reiterates the need to take the steps necessary to ensure that State entities are not used for the purpose of harassing people who devote their efforts to defending and promoting human rights, especially those included in the “Report on the situation of human rights defenders in the Americas.”

7.         Trade Union Freedom

331.          According to the American Declaration, everyone has the right to work,[452] to peaceful assembly[453] and to associate with others to promote, exercise and protect their legitimate interests[454]. As regards freedom of association, the Commission reiterates its concern over the existence of a single, officially recognized, trade union center mentioned in Cuba’s legislation, which has been cause for the ongoing attention of the International Labour Organization. The Commission agrees with the view of the International Labour Organizations whereby trade union pluralism must be possible in all cases, and the law must not institutionalize a de facto monopoly by referring to a specific trade union organization[455]. The Commission wishes to point out that one of the guiding principles of the Constitution of the International Labour Organization, of which Cuba is a signatory, includes the “recognition of the principle of trade union freedom” as an essential condition for the “peace and harmony of the world.”

332.          According to the information received by the IACHR, trade union workers and leaders in Cuba have been subject to temporary detentions, interrogations and threats. By way of an example, the Commission was informed of the detention of four trade unionists affiliated to the Independent National Workers Confederation of Cuba (CONIC), among them its Secretary General, María Elena Mir Marrero. María Elena Mir Marrero, Justo J. Sánchez, Hanoi Oliva and Daniel Sabatier were summoned to appear at the Headquarters of the National Revolutionary Police on August 4, 2009, in Guanabo, Municipio Habana del Este[456]. Upon their arrival at the police headquarters, they were subjected to a harsh interrogation and threatened with prosecution for their present and planned activities, referring to the walk and the throwing of flowers into the sea, which took place on July 13, in memory of the victims of the “13 de Marzo” tugboat incident and the interviews they had given for the documentary “Under Cuban skies: Workers and Their Rights,” which premiered at the nineteenth Conference of the Association for the Study of the Cuban Economy (ASCE)[457] last July 30. They were also threatened with beatings if they attended a street protest on August 4 when the 15^th anniversary of the “Maleconazo” is commemorated[458].

333.          According to the information, the agents and another group of police officers, took the fingerprints from the ten fingers of their hand and a print of their palms, scraped their nails, took photos from the front and the side, and as a form of psychological pressure and humiliation, they placed a rag inside their underpants, against their private parts, which they had to keep there for more than 30 minutes, after which it was put in a jar which was then closed  with a lid[459]. When they asked about this last procedure, they were told that it was in order to assemble  a “smell bank.”

334.          During the interrogation process, the repressive agents of the regime warned them that they would not be allowed to allow them to carry out any more activities liable to jeopardize the work of the Cuban Workers Organization (Spanish acronym CTC) and accused them of attempting to discredit the organization by playing the games and following the instructions they received from Miami, and from the International Group for Social Corporate Responsibility in Cuba (Spanish acronym GIRSCC) specifically. They were told that the same would happen to the other trade unionists who took part in the documentary and activities – such as Carmelo Díaz Fernández, Jorge Olivera Castillo, Víctor Manuel Domínguez and Emilio Jerez[460].

335.          In a hearing before the IACHR held during the 137^th period of sessions, Aurelio Bachiller, a member of the Movimiento Sindical Independiente Cubano since 1993 and Secretary General of the Confederación Nacional Obrera Independiente de Cuba reported that after several incidents of harassment, detentions, and repudiation in Cuba since 1993 because of his trade union activity, in 2008 he was expelled from Cuba. In his testimony he indicated that since 2004 every time he has spoken on trade union activism in Cuba his son, Macdiel Bachiller Pedroza, has been the victim of reprisals.

“Every time I talk about trade union freedoms in the name of Cuban workers in any forum in the United States, my son is arrested without any motive on the basis of social dangerousness or other crimes invented by them. At this time I tell you that my son has been prisoner for a few days at the prison of Valle Grande in Havana. He has a visa to emigrate to the United States, for family union and he has a departure permit … but now he’s in prison.” 

336.          The International Group for Corporate Social Responsibility in Cuba also indicated that Macdiel Bachiller Pedroza was deprived of liberty on four occasions, accusing him of “social dangerousness” in retaliation for the activities of his father, trade union leader Aurelio Bachiller. The IACHR, by communication of November 13, 2009, granted precautionary measures to Macdiel Bachiller Pedroza, who is detained in Cuba without concrete or formal charges in the courts, nor has he been guaranteed his rights to self-defense and due process.

337.          Moreover, in the hearing in question reference was made to the defenseless of workers vis-à-vis the state administration, as a worker fired based on political considerations cannot work anywhere, and if fired due to indiscipline, it will take four years to get a new job, during which time he will not have the means to support his family.

338.          The Commission considers that the acts of harassment against trade unionists who try to defend the right to trade union freedom are contrary to human rights[461].

339.          Finally, with regard to structural situations that affect the human rights the IACHR has received a series of reports referring to special discrimination against the Afrodescendant population in Cuba. For example, according to the information received, more than 84% of the victims of police operations against "antisocial elements" in recent years are reportedly Afrodescendants ages 17 to 30 years old. In addition, information has been received regarding discrimination in employment. In this respect, the Commission, especially the Rapporteurship on the Rights of Afrodescendants and against Racial Discrimination has a special interest in receiving information on such situations.

IV.       ECONOMIC SANCTIONS

340.          In previous reports the IACHR has reported on the economic and trade embargo imposed by the United States of America against Cuba since 1961 and the impact of those economic sanctions on the Cuban people’s human rights.

341.          The Commission received information that on July 15 of this year, president Barack Obama announced to the US Congress the suspension for a period of six months of Section III of the Cuban Liberty and Democratic Solidarity Act, better known as the Helms-Burton Act of 1996, which was intended to reinforce the embargo against Cuba. The Helms-Burton Act consolidated former laws and decrees that led to the US embargo against Cuba in 1960. The objective of Section III of the Act is to halt foreign investment in Cuba and protect the property of US citizens that was expropriated in Cuba. 

342.          The IACHR also received information indicating that in mid July the US government resumed talks with Cuba on migratory issues that had been suspended since 2003. At the beginning of September, the Treasury Department eliminated the restrictions on visits and remittances by US citizens to close relatives in Cuba. Visits to relatives are now unlimited and they may spend up to US$ 159 a day, take a maximum of US$ 3,000 to give to their relatives and send an unlimited amount of remittances as frequently as they wish[462]. According to the new rules, anyone going to the island may do so in the company of people who share the same dwelling on US soil, even if they are not related by blood to Cuban citizens[463]. The “relatives” category has also been extended to cover parents, children, siblings, grandparents, uncles and aunts, cousins and second cousins.

343.          The IACHR was also informed that the Treasury Department authorized US banks to sign agreements with Cuban financial institutions. US telecommunications companies may extend their contracts to Cubans, and are authorized to export technology to set up telephone and Internet satellite and fiber optic links[464].

344.          Among the examples of the opening, in July of this year American officials turned off an electronic sign displaying anti-Castro messages on the windows of the US Interests Section, the diplomatic complex of the United States in Havana[465]. In return, Cuban officials lowered dozens of black flags put up to block the view of the sign[466].

345.          Despite these gestures indicating an opening by the US government toward Cuba, on September 15, 2009, the president of the United States decided to extend the trade embargo against Cuba for another year.

346.          In that respect, the IACHR reiterates its position on the impact of those economic sanctions on the human rights of the Cuban people, insisting that the embargo must end[467]. Notwithstanding the foregoing, the economic embargo against Cuba does not exempt the State from complying with its international obligations, nor does it excuse it for the violations of the American Declaration described in this report.

V.                 POSITIVE ASPECTS AND GENERAL PROGRESS

347.          The IACHR values the international opening expressed by the government of Cuba since 2008. In addition, it values the ratification of the International Convention for the Protection of all Persons from Enforced Disappearance on February 2, 2009. In addition, while the IACHR celebrated the signing by the Government of Cuba of the international covenants on human rights in 2008, it has yet to ratify them, despite having announced officially that it would do so.[468]

348.          The Commission also values the gains made in Cuba in relation to the Millennium Development Goals established by the United Nations. The IACHR places special value on the gains made in relation to maternal health. Accordingly, maternal mortality for 2008 was 46.5 per 100,000 live births[469], 100% of women had at least one pre-natal consultation, and 100% of births were attended by qualified personnel.[470]

349.          The IACHR also appreciates the fact that, according to the United Nations Children’s Fund (Unicef), the mortality ratio in under-fives in 2007 was 7[471].  With respect to the statistics on education the Commission welcomes the fact that according to the information available the 2000-2007 literacy rate among women was 100%[472].

350.          According to information in the daily newspaper Granma, the official organ of the Central Committee of the Cuban Communist Party, “more than three-and-a-half million persons eat every workday at the 24,700 worker kitchens spread throughout the country, which constitutes a severe expense for the State due to the very high prices on the international market and the infinite number of subsidies and gratuities.”[473]  It adds that “the Government will eliminate, as of October 1, on an experimental basis, the workers’ kitchen service at the Ministries of Labor and Social Security, Finance and Prices, Domestic Commerce, and Economy and Planning, and will allocate to each worker 15 pesos daily per day worked, a measure that will begin to be applied in those agencies of the Central Administration of the State; after its validation it will gradually be extended to the whole country.” [474]

VI.       CONCLUSIONS

351.          Bearing in mind the foregoing, the Commission states once again that in Cuba there are structural situations that gravely affect the full observance and enjoyment of human rights.

352.          The restrictions on political rights and the absence of free elections; the lack of guarantees of due process of law and of independence of the judiciary; the deprivation of liberty of political dissidents; restrictions on the right to freedom of residence and travel; the restrictions on the freedom of expression; the harassment of human rights defenders and independent trade union leaders, together constitute a permanent situation of violation of fundamental rights of Cuban citizens. The Commission urges the State to carry out the necessary reforms in keeping with its international obligations in respect of human rights.

353.          Cuban elections are characterized by the lack of plurality and independence and the absence of a framework of free access to diverse sources of information. The Commission reiterates that the lack of free and fair elections, based on universal suffrage and secret ballot as an expression of popular sovereignty, violates the right to political participation of the Cuban people.

354.          The Commission reiterates the need for the State to adopt measures of prevention and protection aimed at addressing the human rights violations that continue to be committed to the detriment of political dissidents.  In particular, it observes with concern the practice of torture of political prisoners, and urges that it be eradicated immediately. Likewise, it observes that every arbitrary and/or excessive use of force and any impairment of the right to life and physical integrity committed by state agents must be investigated and sanctioned to ensure it not be repeated.

355.          The Commission asks the State of Cuba to bring its procedural provisions into line with the applicable international standards on due process so that those who turn to the courts for a determination of their rights and responsibilities can have minimum legal guarantees to exercise their means of defense. In this respect, the Commission considers extremely serious and condemns the repeated use in Cuba of highly summary proceedings without the observance of due process guarantees, including the minimum and necessary guarantees for the accused to exercise his or her right to mount an adequate legal defense. In addition, in this regard, it urges the derogation of criminal statutes such as the “social dangerousness” law, which is often used by the Government of Cuba as a tool of political persecution.

356.          Accordingly, the Commission urges the State of Cuba to adopt whatever legislative and other measures are necessary in order to ensure that the death penalty does not violate the principles of due process and a fair trial before a competent, independent and impartial court, established in accordance with the law.

357.          The Commission also reiterates to the State of Cuba its recommendation to order the immediate and unconditional release of the victims of Case 12,476, and to declare the sentences against them null and void because they were based on laws that unlawfully restrict their human rights.

358.          The Commission has noted that Cuba is the only country in the Americas where one can categorically state that there is no guarantee for exercising the right to freedom of expression. Cuba is the country in the Americas with the largest number of journalists and writers detained for freely expressly their thoughts and ideas. In view of the foregoing, the Commission urges the Cuban State to ensure the right to freedom of expression and to avoid the harassment, threats, intimidation, and/or imprisonment for those who attempt to exercise that right.

359.          The Commission urges the Cuban State to adopt whatever measures it considers necessary to prevent and eradicate the different forms of harassment against those who exercise the right of association for humanitarian and trade union purposes and against those who work in favor of the defense and promotion of human rights.

DISSENTING VOTE

In line with the position that I have kept in regards to the Republic of Cuba, I have expressed that the Commission lacks material and territorial competence with respect to the Republic of Cuba, by virtue of its exclusion from the Organization of American States. Hence, I do not share the decision of most of my colleagues on the admission and processing of cases and the issuing of reports and other activities derived from the application of the Convention.  Luz Patricia Mejía Guerrero, IACHR President.