CUBA
Human rights developments in the region
Annual
Report of the Inter-American Commission
on Human Rights 2005.
61. The Commission’s
jurisdiction to observe the situation of
human rights in Cuba derives from the OAS
Charter, the Commission’s Statute, and its
Rules of Procedure. According to the
Charter, all member states undertake to
respect the fundamental rights of individuals,
which in the case of states that are not
party to the Convention are those established
in the American Declaration, which is for
these States a source of international obligations.[59]
Upon exercising it’s jurisdiction in relation
to those member states that are not parties
to the American Convention on Human Rights,
the Commission’s Statute requires it to
pay particular attention to the observance
of the human rights referred to in Articles
I (right to life, liberty and personal security),
XVIII (Right to a fair trial), and XXVI
(right to due process of law) of the American
Declaration of the Rights and Duties of
Man.[60]
62. On
January 6th, 2006, the Commission
sent this report to the State of Cuba and
asked for its observations. On January 24th,
2006, the Commission received a communication
from the Chief of the Section of Cuban Interests
in Washington D.C., in which he expressed
that “[t]he Inter-American Commission on
Human Rights does not have competence, nor
does the OAS have moral authority to analyze
this or any other issue regarding Cuba”.
63. Cuba
has been a state party of the Organization
of American States since July 16, 1952,
when it deposited its instrument of ratification
of the Charter of the OAS. The Commission
has held that the Cuban State “is juridically
responsible to the Inter-American Commission
in matters that concern human rights” since
“it is party to the first international
instruments established in the American
hemisphere to protect human rights” and
because under Resolution VI of the Eighth
Meeting of Consultation[61]
it was “the present Government of Cuba that
was excluded from the inter-American system,
and not the Cuban State.”[62]
In this connection, the IACHR’s position
has been that,
[...]when it excluded the Cuban Government
from the inter-American system, it was not
the intention of the Organization of American
States to leave the Cuban people without
protection. That Government’s exclusion
from the regional system in no way means
that it is no longer bound by its international
human rights obligations.[63]
64. The
IACHR has observed and evaluated the situation
of human rights in Cuba in 2005, during
which time it has received, in particular,
information on violations of due process
guarantees and lack of independence of the
judiciary; conditions of detention of persons
deprived of liberty because of their political
dissidence; violation of the right to freedom
of expression; on the situation of human
rights defenders; violation of labor and
union rights of workers and the restrictions
placed on the exercise of right of residence
and transit of the island’s habitants.[64]
65. In
exercise of its jurisdiction, the IACHR
decided to include in this chapter of its
Annual Report observations on the situation
of human rights in Cuba, in particular with
regard to the issues mentioned in the foregoing
paragraph, and to make express reference
the need to lift the economic and trade
sanctions imposed against the government
of Cuba because they tend to enhance the
restrictions on the effective enjoyment
of economic, social and cultural rights
by the Cuban people.
66. The
restrictions on political rights, freedom
of expression, and the dissemination of
ideas have for decades constituted a situation
of permanent and systematic violation of
the fundamental rights of Cuban citizens,
a state of affairs that is aggravated, in
particular, by the lack of an independent
judiciary.
67. Before
analyzing the issues which in the opinion
of the Commission require special consideration,
the IACHR finds it necessary to reiterate
that the absence of periodic, free, and
fair elections based on secret balloting
and universal suffrage as an expression
of the sovereignty of the people[65]
violates the right to participate in government
enshrined in Article XX of the American
Declaration of the Rights and Duties of
Man, which provides that “[e]very person
having legal capacity is entitled to participate
in the government of his country, directly
or through his representatives, and to take
part in popular elections, which shall be
by secret ballot, and shall be honest, periodic
and free”. For its part, Article 3 of the
Democratic Charter signed in Lima, Peru,
on September 11, 2001, defines the elements
that comprise a democratic system of government
as follows:
[E]ssential 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.
1.
Due process guarantees and independence
of the judiciary
68. Under
the American Declaration, every person has
the right to resort to the courts,[66]
to protection from arbitrary arrest,[67]
and to due process of law.[68]
These rights, together with others, make
up a body known as “legal due process guarantees,”
which are nothing more than the minimum
guarantees recognized for every human being
with respect to legal processes of any nature.
As the Inter-American Court has reiterated
on several occasions,[69]
States have the responsibility to embody
in their legislation and ensure due application
of effective remedies and guarantees of
due process of law before the competent
authorities, which protect all persons subject
to their jurisdiction from acts that violate
their fundamental rights or which lead to
the determination of the latter’s rights
and obligations[70].
69. In
particular, the American Declaration provides
that every human being has the right to
liberty[71]
and no person may be deprived of his liberty
except in the cases and according to the
procedures established by pre-existing law.[72]
70. In
2005, a series of acts of harassment are
alleged to have been carried out against
political dissidents in Cuba, including
a number of arrests. In particular, on July
13 and 22, the Cuban authorities reportedly
detained more than 50 people, including
journalists and political activists who
were organizing or participating in peaceful
political demonstrations.[73]
71. Several
of the persons arrested in July were charged
with “pre-criminal dangerousness”, that
is, not with any crime, but as a security
measure under Articles 78 to 84 of the Cuban
Criminal Code.
72. Arrests
in such circumstances violate the right
to personal liberty and the right to protection
from arbitrary arrest recognized in the
American Declaration. The Commission notes
that most of these persons are said to have
been released without charge. However, it
observes with concern that Amnesty International
informs that at least 15 men remain in prison
and are reportedly facing charges of “public
disorder” or criminal charges under the
Law for the Protection of the National Independence
and Economy of Cuba, also known as Law 88.[74]
The Commission is also concerned that these
persons may be prosecuted under the specially
expedited summary proceeding provided at
Articles 479 and 480 of the Cuban Criminal
Procedure Act, also known as Law 5.
73. In
accordance with the American Declaration,
every individual who has been deprived of
his liberty has the right to have the legality
of his detention ascertained without delay
by a court, and the right to be tried without
undue delay or, otherwise, to be released.[75]
Furthermore, Every person accused of an
offense has the right to be given an impartial
and public hearing, and to be tried by courts
previously established in accordance with
pre-existing laws, and not to receive cruel,
infamous or unusual punishment.[76]
74. In
the period covered by this report, the IACHR
continued to receive information regarding
trials in which the Cuban courts allegedly
judged the accused according to ideological
and political criteria rather than by judicial
procedures reflective of Cuba’s international
human rights obligations. Accordingly, the
Commission urges Cuba to bring its procedural
rules into line with the applicable international
standards of due process, so that everyone
who turns to the courts for a ruling on
their rights and responsibilities is ensured
the minimum legal guarantees necessary to
exercise a means of defense. It is the Commission’s
view that the existing legal framework is
not in compliance with Cuba’s international
obligations in this regard.
75. In
particular, the Commission considers that
full observance of the judicial guarantees
enshrined in the American Declaration is
founded on an independent and autonomous
judiciary. The Commission has stated consistently
that Cuba lacks the separation of powers
necessary to ensure an administration of
justice free of interference from other
branches of government. Indeed, Article
121 of the Constitution of Cuba provides
that “[t]he courts comprise a system of
government organs, set up with functional
independence from any other and hierarchically
subordinate to the National Assembly of
Popular Power and the Council of State.”
The Commission notes that the subordination
of the courts to the Council of State, presided
over by the Head of State,[77]
constitutes the judiciary’s direct dependence
on the directives of the executive branch.
Under this system, the Commission believes
that the Cuban courts do not effectively
guarantee the rights of the accused enshrined
in the American Declaration. The Commission
believes that the aforementioned characteristics
of the judicial branch in Cuba do not guarantee
the rights of the accused, particularly
in cases with a political connotation.
2.
Prison conditions
76. According
to the American Declaration of the Rights
and Duties of Man, every individual has
the right to humane treatment during the
time he is in custody.[78]
In this regard, the Inter-American Court
of Human Rights has consistently ruled that
“every person deprived of their liberty
has the right to live in detention conditions
compatible with their personal dignity,
and the State must guarantee to that person
the right to life and humane treatment.”[79]
The Court has also ruled that “[t]he State
is responsible for detention centers and,
therefore, must guarantee inmates conditions
that leave their rights unharmed.”[80]
The Commission has brought up the
issue of prison conditions in Cuba in several
of its reports.
[81]
77. In
particular, the Commission continues to
receive information regarding the poor detention
conditions of a group of approximately 75
leaders of a dissident movement in Cuba
who were sentenced to prison terms in April
2003.[82]
The Commission has received information
that the majority of these detainees were
deliberately jailed in prisons at a great
distance from their places of residence,
telephone contact and correspondence were
restricted, they were subjected to mistreatment
by prison guards, and they were held in
solitary confinement. The Commission likewise
received information regarding harassment
of relatives of the prisoners, including
restrictions on telephone calls and correspondence
with the prisoners. The Commission reiterates
its concern that all of the convicted prisoners
were transferred to solitary confinement
in punishment areas of high-security prisons,
located far from their home communities,
in cells with little or no ventilation,
lighting, or beds, and that the authorities
have refused them the right to receive visits
and adequate medical care. This practice
is considered additional punishment for
the prisoners, in that it prevents access
by their families as well as their legal
representatives.
78. During
its 123rd Regular Session, the Commission
received information regarding the harsh
prison conditions in which most prisoners,
in particular dissidents, live in Cuba.
The Commission was told that in most cases
prisoners are only allowed one family visit
per month and in some cases, for no particular
reason, only once every three months. The
Commission was also informed that in several
cases, when relatives have arrived on visiting
day, having waited for weeks and traveled
large distances to the prisons, they are
forbidden entry without any explanation
given and forced to return home and wait
another month. During the session, the Commission
was informed of the case of Miguel Galván,
a 36 year-old disabled man whose only relative
is a sister, who is only allowed to visit
him once every three months and is sometimes
refused permission to see her brother.
Furthermore, the standard of medical care
is deplorable and several prisoners do not
receive religious support.
79. Regarding
health conditions, the Commission has previously
expressed its concern that a significant
number of convicted prisoners are over 60
years of age and suffering from chronic
illnesses affecting their vision, kidneys,
and heart, and they are not receiving appropriate
medical care for their conditions.
The Commission has received information
that as a result of prolonged imprisonment
in harsh conditions the health of several
dozen political prisoners continues to decline
alarmingly, to the point where several of
them are forced to remain in the prison
hospital wings.[83]
80. The
IACHR also noted with concern that political
prisoners who denounce or refuse to abide
by prison rules are punished inter alia
with long periods of solitary confinement,
restrictions on visits, and lack of medical
care. Such measures are especially grave
for prisoners over the age of 60, and those
who are ill.
81. The
Commission draws attention to the information
that several more inmates belonging to the
“group of 75” were accorded “extra-prison”
status, allowing
them to be released on health grounds. However,
the Commission notes that this status may
be revoked at the discretion of the Cuban
Interior Ministry; that is, it only constitutes
a conditional release.
3.
Freedom of expression
82. According
to the American Declaration, “[e]very person
has the right to freedom of […] expression
and dissemination of ideas, by any medium
whatsoever.”[84]
Furthermore, the Declaration of Principles
on Freedom of Expression[85]
stipulates that,
[f]reedom of expression in all its forms
and manifestations is a fundamental and
inalienable right of all individuals. Additionally,
it is an indispensable requirement for the
very existence of a democratic society.[86]
83. As
the Inter-American Court of Human Rights
has stated on several occasions, those who
enjoy the right to freedom of expression
“have not only the right and freedom to
express their own thoughts, but also the
right and freedom to seek, receive, and
disseminate information and ideas of all
types. Consequently, freedom of expression
has both an individual and a social dimension:
It requires, on the one hand, that no one
may be arbitrarily harmed or impeded from
expressing his own thought and, therefore,
represents a right of each individual; but
it also implies, on the other hand, a collective
right to receive any information and to
know the expression of the thought of others.”[87]
84. Regarding
the social dimension of the right to freedom
of expression, the Inter-American Court
indicated that it constitutes “a medium
for the exchange of ideas and information
among people; it encompasses their right
to try to communicate their points of view
to others, but it implies too the right
to know the opinions, stories, and news
expressed by others.”[88]
85. In
2005, the IACHR continued to receive reports,
through its Rapporteurship on Freedom of
Expression (hereinafter, the Office of the
Rapporteur), on acts of repression and censorship
against those wishing to express themselves
freely in Cuba.[89]
The Office of the Rapporteur has repeatedly
said in reports prepared at the request
of the IACHR that Cuba is the only country
in the hemisphere where it can be stated
categorically that freedom of expression
does not exist. This affirmation remains
true this year in light of reports the Commission
has received concerning mistreatment of
imprisoned journalists; criminal prosecution
and imprisonment of independent journalists
for expressing opinions that contradict
the government; prior censorship; attacks
and acts of intimidation against journalists;
the application of desacato [contempt]
laws, and indirect violations of freedom
of expression.
86. The
Commission received copious amounts of information
on poor prison conditions and the delicate
health of a number of imprisoned journalists.
A case in point are the members of the “group
of 75” who are still in prison, for whom
the conditions of detention remain as abusive
as they were the previous year.[90]
The Commission, through the Office of the
Rapporteur, also received reports regarding
the delicate physical and mental health
of certain journalists, in particular José
Luis García Paneque, Normando Hernández
González, Alfredo Manuel Pulido López, and
Mario Enrique May Hernández. According
to information received, the first two have
serious illnesses,[91]
the third is confined to his bed and suffers
from acute depression,[92]
and the fourth has reportedly attempted
suicide on two occasions.[93]
From this information, it is fair for the
Commission to conclude that in some cases
the prison conditions to which these journalists
are subjected could be life-threatening.
87. The
IACHR also received abundant information
reporting the alleged mistreatment of several
jailed journalists. According to information
provided to the Commission, several of the
imprisoned journalists renewed hunger strikes
in protest at prison conditions.[94]
Among them was Víctor Rolando Arroyo, who
has been serving a 26-year sentence since
April 2003 for allegedly committing acts
“designed to subvert the internal order
of the nation and destroy its political,
economic and social system.”[95]
Another journalist named Adolfo Fernández
Saínz started a hunger strike in August
in protest at the mistreatment of the jailed
dissident Arnaldo Ramos Lauzurique.[96]
According to information received by the
Commission, the latter received a severe
beating at the hands of a prison guard in
a punishment cell.[97]
88. In
2005, through the Office of the Rapporteur,
the Commission received several reports
of assaults, harassment, intimidation and
extortion of independent journalists trying
to express themselves freely in Cuba.
Inter alia, the IACHR received information
regarding the harassment and extortion of
Osmel Sánchez López, Ernesto Roque, and
Ana Rosa Veitía, of the Unión de Journalists
y Escritores Cubanos Independientes
(UPECI);[98]
the arbitrary arrest and assault of Lamasiel
Gutiérrez Romero of Nueva Prensa Cubana;[99]
the raid on the house and intimidation of
Lucas Garve of Fundación para la Libertad
de Expresión;[100]
and the brutal and public attack by pro-government
fanatics on Guillermo Fariñas, publisher
of the Cubanacán independent press
agency.[101]
The IACHR utterly condemns these and other
incidents of violence against journalists
and communicators. The Commission
considers that these incidents stem from
the climate of repression and lack of freedom
of expression that exists in Cuba.
89. As
to prior censorship, through the Office
of the Rapporteur, the Commission received
information on new trials and criminal convictions
of independent journalists. The IACHR
was furnished with information on the arrest
and “summary” prosecution of Albert Santiago
Du Bouchet Hernández, a journalist with
the Nueva Prensa Cubana agency.[102]
It also received news of the criminal prosecution
of journalists Lasamiel Gutiérrez Romero
(Nueva Prensa Cubana)[103]
and Oscar Mario González Pérez (Grupo
de Trabajo Decoro),[104]
as well as the arrest of Florencio Cruz
Cruz (Linea Sur Prensa).[105]
These incidents take the number of journalists
imprisoned in 2005 to 24, and the figure
looks set to rise in the coming year.[106]
90. The
Commission notes with satisfaction the release
of certain journalists, such as Carlos Brizuelo
Yera, it noted with concern the repressive
conditions and surveillance under which
these journalists practice their profession.
The legal framework in place and the repressive
measures of the security forces and the
State against journalists entail a high
risk for these journalists, who could easily
be put back behind bars merely for practicing
their profession. According to the
Office of the Rapporteur, these circumstances
clearly demonstrate the structural reasons
why there is still no respect for freedom
of expression in Cuba.[107]
91. The
IACHR notes that the arrests of two journalists,
Oscar Mario González Pérez and Albert Santiago
Du Bouchet Hernández, followed their coverage
of an opposition congress organized by the
Asamblea para la Promoción de la Sociedad
Civil in May 2005.[108]
Through the Office of the Rapporteur, the
Commission also received information on
the arrest and deportation of three journalists,
two interpreters, and a human rights activist,
all from Poland, who had traveled to Cuba
to cover the opposition congress.[109]
In the same report the IACHR received information
regarding the arrest of an Italian journalist,
the ban on entry to the country of several
Spanish and Italian journalists, and the
deportation of four members of the EU Parliament,
all of whom had come to attend the congress.[110]
92. The IACHR
was also informed of raids and maneuvers
used by the security services to implicate
independent journalists in criminal proceedings.
The Commission received news, through the
Office of the Rapporteur, of the case of
Maria Elena Alpízar Ariora, whom members
of the National Revolutionary Police allegedly
sought to implicate in a fabricated crime.[111]
93.
By the same token, in the case of the journalist
Oscar Mario González Pérez, the Commission
was informed that the security services
allegedly threatened and attempted to blackmail
him so that he would leave off his activities
as a journalist.[112]
Following the refusal of Mr. González Pérez
to give in to the blackmail, the Commission
has received news of his arrest and prosecution
under Law 88, a repressive law with precedence
over other laws that empowers the Cuban
state to put an end to dissidence on the
pretext of resistance against foreign aggression.[113]
94. The
Commission expresses its concern at all
of these events, which it regards as further
deterioration compared to the previous year.
The Commission recalls that it has always
maintained that the Cuban State is juridically
responsible to the IACHR in matters that
concern human rights since it “is party
to the first international instruments established
in the American hemisphere to protect human
rights.” One of the duties set forth in
the American Declaration is to ensure freedom
of expression.[114]
In this and other areas the Commission will
continue its work to denounce violations
and champion full enjoyment of human rights
for the people of Cuba.
4.
Human rights defenders
95. Restrictions
on freedom of assembly, association and
expression create a context that prevents
free exercise of the right to defend human
rights. The Commission has noted that various
obstacles to the work of those who defend
the human rights of others have remained
in place for several years.[115]
96. The
Commission received constant reports of
repressive government measures against human
rights defenders, such as disciplinary measures,
indictment on criminal charges, temporary
detention, dismissals from work, official
warnings, and prison sentences. The
Cuban state has taken no steps to amend
the pattern of repression used in the past
against persons it considers opposed to
the government regime. This conception of
opposition includes human rights defenders,
who pursue an activity considered unlawful
by the national authorities because they
regard it as a betrayal of Cuban sovereignty
or because they deem some aspects of human
rights to be part of the legacy of bourgeois
liberal democracy.
97. The
Commission notes that the authorities have
stigmatized the work of human rights defenders
in order to mislead part of the population
about the role of persons who defend and
advance human rights. In this context, the
Commission was informed that on September
1, 2005, the lawyer Juan Carlos González
Leiva, a member of the Fundación Cubana
de Derechos Humanos [Cuban Foundation
for Human Rights], was the victim of an
“act of censure” [acto de repudio] by military
officials and government supporters while
at a meeting of the Fundación Cubana de
Human Rights that was being held at his
house in the town of Ciego de Ávila. According
to information seen by the Commission somewhere
between 200 and 400 people shouted abuse
and pro-government slogans and beat violently
on the doors and windows, yelling at the
participants that “they were not going to
tolerate any more activities in defense
of human rights”. The defenders said they
received death threats and that 20 or 30
children at the front of the mob shouted,
“Down with human rights.”[116]
98. The
Commission requests the Government to foment
a culture of human rights that publicly
and unequivocally acknowledges the essential
role played by human rights defenders in
helping to ensure democracy and the rule
of law in society. Public servants should
refrain from statements that stigmatize
human rights defenders or that suggest that
human rights organizations act improperly
or illegally merely because of their work
to advance or protect human rights. The
government should issue precise instructions
to officials in this regard and punish anyone
who fails to comply with such instructions.
99. As
part of the policy of restriction of the
exercise of the right to defend human rights,
the Commission notes that local human rights
groups are denied proper legal recognition.
The Constitution, the law, and regulations
governing associations restrict the right
of assembly and association, preventing
the legalization of independent associations.
Proof of this is the fact that the government
only recognizes one trade union central
organization as legitimate. Furthermore,
in Cuba approval for nongovernmental organizations
is controlled by politicized government
agencies with broad powers to reject applicant
associations on arbitrary or political grounds.[117]
100. The
Commission reiterates that for people to
exercise freely their rights of association
and public assembly in defense of human
rights, the State must ensure that persons
are able to form organizations and pursue
their activities without restriction or
state interference. The Commission reiterates
to the State its recommendation that it
bring its domestic laws into line with international
standards with regard to permissible limitations
and regulations on the exercise of the rights
of association and assembly.
101. The
Commission has noted that under criminal
legal provisions that expressly punish the
exercise of fundamental freedoms, persons
involved in human rights organizations may
be liable to criminal penalties, including
prison terms of several years. Criminal
penalties are also imposed under laws whose
vagueness and subjectivity afford broad
discretion to agents of the state in repressing
any dissent against official policy.
Thus, the offences against the State security
recognized in the Cuban Criminal Code, and
with which the majority of human rights
defenders are charged and later convicted,
include, inter alia: “enemy propaganda”,
“clandestine printing”, “social dangerousness”,
“rebellion”, “contempt” [“desacato”],
“illegal association”, “defamation of heroes
and martyrs”, “public disorder”, “sedition”,
“acts against State security”.[118]
102. Another
criminal classification used frequently
by the Cuban state to restrict the work
of human rights defenders is “dangerousness”,
as defined in Articles 72 et seq.
of the Cuban Criminal Code.[119]
The Commission has referred in previous
reports to the serious consequences of maintaining
and applying these rules, which are incompatible
with the American Declaration of the Rights
and Duties of Man.[120]
103. The
Commission was informed that in 2005 at
least 306 personas were prosecuted and given
prison sentences for engaging in activities
connected with the exercise of fundamental
liberties, such as freedom of association
and assembly.[121]
On July 13 and 22, 2005 alone, 24 and 33
people were arrested for their participation,
among other activities, in a demonstration
held outside the French Embassy in Havana
to demand the release of political detainees.
In this connection, the IACHR expressed
its concern at the severe restrictions that
these measures place on freedom of expression
and the rights of association and peaceful
public protest. On that occasion, the IACHR
reiterated that the Law for Protection of
the National Independence and Economy of
Cuba (Law 88) was contrary to the rights
enshrined in American Declaration of the
Rights and Duties of Man.[122]
104. Furthermore,
on August 4, 2005, Messrs. Osvaldo Guerra
Aguilar, Jesús Hernández Medina, Osvaldo
López Rodríguez, Orestes Montedir Gustavo,
José Reyes, and Alain Ramón Gómez Ramos
were victims of an operation carried out
by the political police of the Municipality
of Manicaragua. According to information
received by the IACHR, the sole aim of the
police operation was to harass different
members of the opposition, including human
rights defenders. The information
received indicated that several groups of
agents prevented the human rights defenders
from leaving their homes that day.[123]
105. In
another incident, on August 20, 2005, State
Security agents raided the apartment of
Mrs, Maybell Padilla, Deputy Secretary General
of the Consejo Unitario de Trabajadores
Cubanos (CUCT), whose Secretary General,
Pedro Pablo Álvarez Ramos, has been in jail
since April 2003 serving a 25-year prison
sentence. According to information supplied
to the Commission, in the search a fax machine,
documents belonging to her organization,
domestic and foreign newspapers, and money
were seized from Mrs. Padilla. The trade
union leader was then taken to a police
state in Havana, where she was issued a
certificate of confiscation [acta de
ocupación] and informed that she would
be summonsed in due course.[124]
106. In
similar fashion, on the afternoon of September
27, 2005, two State Security agents arrived
at the home of Arturo Quesada Ortega, an
activist of Asociación Ecológica NATURPAZ,
in Parraga, Municipality of Arroyo Naranjo.
The agents served him with a summons to
appear at Capri Police Unit in the Municipality
of Arroyo Naranjo on September 28. The following
day Mr. Quesada arrived at the police unit,
where, while undergoing questioning, he
was threatened in order to persuade him
“to withdraw from the opposition”. The officials
told him that they knew that he received
telephone calls from abroad at his home
and that he received money for those calls.[125]
107. The
Commission recalls that states must refrain
from the prosecution of human rights defenders
merely for the work they do. States have
a duty to investigate persons who break
the law in their territory but they also
have the obligation to adopt all measures
necessary to prevent the use of state investigations
to subject to unjust or unwarranted trials
persons who legitimately demand respect
and protection for human rights. The Commission
recalls that that punitive authority of
the State and its organs of justice must
not be manipulated in order to harass persons
who devote themselves to legitimate pursuits,
such as human rights defenders. Consequently,
the Commission reiterates to the State the
recommendation that it has repeated for
several years that it strike from its statute
books all provisions that impose limitations
and restrictions on freedom of expression,
assembly and association, which by law and
in practice are contrary to basic human
rights standards.
5.
Labor rights and freedom of association
108. The
American Declaration recognizes the rights
of every person to work,[126]
to peaceful assembly,[127]
and to associate with others to promote,
exercise, and protect his legitimate interests.[128]
In determining the scope of the right to
free association as it relates to the right
to work, the Inter-American Court has stated
that this must be analyzed in relationship
with the freedom to organize labor unions.[129]
In the Court’s opinion,
In labour union matters, freedom of association
consists basically of the ability to constitute
labour union organisations, and to set into
motion their internal structure, activities
and action programme, without any intervention
by the public authorities that could limit
or impair the exercise of the respective
right. On the other hand, under such
freedom it is possible to assume that each
person may determine, without any pressure,
whether or not she or he wishes to form
part of the association. This matter,
therefore, is about the basic right to constitute
a group for the pursuit of a lawful goal,
without pressure or interference that may
alter or denature its objective.[130]
109. In
2005, the IACHR continued to receive information
on the human rights situation of workers
and labor leaders in Cuba. In particular,
the information refers to the deplorable
prison conditions endured by the trade unionists
arrested in March 2003 and subsequently
convicted; to the restriction of freedom
of association and the continual acts of
harassment of collaborators and activists
of the independent trade union movement;
to the system of wage organization in Cuba,
and to the special labor conditions reportedly
imposed on employees of Cuban state companies
who work abroad.[131]
110. Regarding
freedom of association, the Commission reiterates
its concern at the existence of only one
trade union central organization recognized
officially and mentioned in Cuban law, a
situation which has also been addressed
by the International Labor Organization.
The Commission wishes to stress that the
guiding principles of the Constitution of
the International Labor Organization, of
which Cuba is a signatory, include “recognition
of the principle of freedom of association”
as an essential condition for “universal
peace and harmony." In this sense,
the Commission believes that the acts of
harassment to which the aforementioned labor
unionists have been subjected are contrary
to human rights.
111. The
Commission is also troubled by the restrictions
on the exercise of Cuban workers’ labor
rights, associated in general with the requirement
to be a member of the governing political
party, and by alleged arbitrary discrimination
by foreign companies in Cuba against Cuban
workers. The Commission also regards with
concern reports received about discriminatory
and arbitrary treatment of Cuban workers
in the service of Cuban state companies
outside Cuba.
6.
Right to movement and residence
112. Every
person has the right to move about freely
within the territory of the state of which
he is a national and not leave it except
by his own will.[132]
The Inter-American Court has concurred with
the Commission on Human Rights in that
[p]ersons are entitled to move from one
place to another and to establish themselves
in a place of their choice. The enjoyment
of this right must not be made dependent
on any particular purpose or reason for
the person wanting to move or to stay in
a place.[133]
113. The
Commission has been following the situation
of the right to movement and residence in
Cuba in successive reports, since it considers
that the Cuban state imposes undue restrictions
on the right to movement and residence enshrined
in the American Declaration. Moreover, the
Commission notes that the persons usually
affected by the restrictions imposed by
the Cuban authorities are those who dissent
with the kind of government that exists
in the country.[134]
114. Information
received in 2005 on the situation of human
rights in Cuba shows that the State continues
to deny its nationals the right to come
and go from the country of their free will,
and requires them to have authorization
from the Ministry of the Interior to travel
abroad. Several petitions lodged with the
IACHR repeat the complaint that the Cuban
migration authorities continue to deny visas
for political reasons to citizens wishing
to leave or enter the territory, or they
delay processing of such requests indefinitely.[135]
Furthermore, the Commission has received
information about restrictions maintained
on movement within the country that affect
Cuban citizens, and foreign residents and
visitors to the country.
115. Article
I of the American Declaration enshrines
the right to liberty. The Commission finds
that the arbitrary restrictions imposed
by the Cuban government on the exercise
of the right of residence and movement to
the detriment of its citizens, foreign residents
and visitors to the country seriously curtail
the fundamental right to liberty.
7.
Economic sanctions
116. The
Commission considers that the trade embargo
imposed on Cuba for more than 40 years should
end. This economic sanction has had a severe
impact on the enjoyment of the economic
and social rights of the population and,
in the final analysis, the ones who have
suffered the consequences have been most
vulnerable sectors of the Cuban population.
117. The
Commission has insisted that the inter-American
community has the responsibility to create
external conditions that enable Cuban society
to overcome the situation currently affecting
it, with a view to achieving the full observance
of human rights.[136]
However, the adverse effects of the economic
sanctions and other unilateral measures
aimed at isolating the Cuban regime constitute
an obstacle to creating those conditions
that are so necessary for achieving a peaceful
and gradual transition to a democratic form
of government.”[137]
[59] 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, Inter-Am.Ct.H.R. (Ser. A) No. 10
(1989), par. 43-46.
[60] Statute of the IACHR, Article
20.a.
[61] The complete text of Resolution
VI can be found in the “Eighth Meeting
of Consultation of Ministers of Foreign
Affairs, Serving as Organ of Consultation
in Application of the Inter-American Treaty
of Reciprocal Assistance,” Punta del Este,
Uruguay, January 22 – 31, 1962, Documents
of the Meeting,” Organization of American
States, OEA/Ser.F/II.8, doc. 68, pp. 17-19.
[62] IACHR, Annual Report 2002, Chapter
IV, Cuba, pars. 3-7. See also, IACHR,
Annual Report 2001, Chapter IV, Cuba,
pars. 3-7. IACHR, Report on the Situation
of Human Rights in Cuba, Seventh Report,
1983, pars. 16-46.
[64] IACHR, Press Release 35/05 of
October 28, 2005.
[65] Article 3 of the Inter-American
Democratic Charter provides that essential
elements of representative democracy include
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.
[66] American Declaration, Article
XVIII.
[67] American Declaration, Article
XXV.
[68] American Declaration, Article
XXVI.
[69] Hereinafter the “Inter-American
Court” or “Inter-Am.Ct.H.R.”
[70] Inter-Am. Ct. H.R., Inter-American
Court, Case of Herrera Ulloa, Judgment
of July 2, 2004, Ser. C, No. 107,
par. 145. Inter-Am. Ct. H.R., Case
of Baena Ricardo et al., Competence,
Judgment of November 28, 2003. Ser. C,
No. 104, par. 79. Inter-Am. Ct. H.R.,
Case of Cantos, Judgment of November
28, 2002, Ser. C, No. 97, par. 59.
[71] American Declaration, Article
I.
[72] American Declaration, Article
XXV.
[74] Amnesty International. AI Public
Statement: AMR 25/019/2005. August
9, 2005.
[75] American Declaration, Article
XXV.
[76] American Declaration, Article
XXVI.
[77] The President of the Council
of State is Mr. Fidel Castro Ruz. Information
obtained on the web site of the Government
of the Republic of Cuba
http://www.cubagov.cu/ (last visited
on November 10, 2005). See also,
the Constitution of the Republic of Cuba,
Articles 89 to 93.
[78] American Declaration, Article
XXV.
[79] Inter-Am. Ct. H.R., Case of
Children’s Rehabilitation, Judgment
of September 2, 2004, Ser. C, No. 112,
par. 151; Inter-Am. Ct. H.R., Case
of Castillo Petruzzi et al., Judgment
of May 30, 1999, Ser. C, No. 52, par.
195; Inter-Am. Ct. H.R., Case of Neira
Alegría et al., Judgment of January
19, 1995, Ser. C, No. 20, par. 60.
[80] Inter-Am. Ct. H.R., Case of
Tibi, Judgment of September 7, 2004.
Ser. C, No. 114, par. 150; Inter-Am. Ct.
H.R., Case of Bulacio, Judgment
of September 18, 2003, Ser. C, No. 100,
par. 126.
[81] IACHR, Annual Report 1995, Chapter
V, par. 71; IACHR, Annual Report 1994,
Chapter IV, p. 168; IACHR, Annual Report
2004, Chapter IV, par. 59-66.
[82] The so-called “group of 75” is
made up of 74 men and one woman. They
are leaders of a dissident movement
and as a result of their activities, the
group was arrested, tried in an “extremely
summary” proceeding, and convicted for
having participated in alleged “counter-revolutionary”
activities.
[83] Acción Democrática Cubana.
Press Release, November 9, 2005.
[84] American Declaration, Article
IV.
[87] Inter-Am. Ct. H.R., Case of
Ricardo Canese, Judgment of August
31, 2004, Ser. C, No. 111, par. 77; Inter-Am.
Ct. H.R., Case of Herrera Ulloa,
Judgment of July 2, 2004, Ser. C, No.
107, par. 108; Inter-Am. Ct. H.R., Case
of Ivcher-Bronstein, Judgment of February
6, 2001, Ser. C, No. 74, par. 146; Inter-Am.
Ct. H.R., Case of “The Last Temptation
of Christ” v. Chile (Olmedo Bustos et
al.). Judgment of February 5,
2001, Ser. C, No. 73, par. 64; and Inter-Am.
Ct. H.R., Compulsory Membership in
an Association Prescribed by Law for the
Practice of Journalism (Arts. 13 and 29
American Convention on Human Rights),
Advisory Opinion OC-5/85 of November 13,
1985, Ser. A, No. 5, par. 30.
[88] Inter-Am. Ct. H.R., Case of
Ricardo Canese, Judgment of August
31, 2004, Ser. C, No. 111, par. 79.
[89] For more information on freedom
of expression in the country, see Report
of the Office of the Rapporteur for Freedom
of Expression 2005, Chapter II.
[90] IACHR, Annual Report 2004,
Chapter IV, “Human Rights Developments
in the Region,” par. 62.
[107] Report of the Office of the
Rapporteur for Freedom of Expression 2005,
Chapter II, par. XXX.
[114] American Declaration, Article
IV.
[115] Cfr. IACHR, Annual Report
2000, OEA/Ser./L/V/II.111, Chapter
IV, par. 22 et seq; IACHR, Annual
Report 2001, OEA/Ser./L/V/II.114,
Chapter IV, pars. 20 and 21. IACHR, Annual
Report 2002, OEA/Ser.L/V/II.117, Chapter
IV, par. 35. IACHR, Annual Report
2003, OEA/Ser.L/V/II.118, Chapter
IV, par. 21 et seq. IACHR,
Annual Report 2004, OEA/Ser.L/V/II.122,
Chapter IV, par.68 et seq.
[116] “En Cuba abogado invidente,
activista pro derechos humanos, sufre
brutal repudio” [Blind human rights
activist-lawyer in Cuba suffers savage
repudiation]”, Coalición de Mujeres
Cubano-Americanas/ LAIDA CARRO, September
2005.
[117] The body that reviews applications
of groups wishing to operate at the municipal
or provincial level is the Executive Committee
of the Assembly of Popular Power for the
area. Any group that intends to
operate at the national level must submit
an application to the state body, agency
or office concerned with the objectives
and proposed activities of the association.
The first review must be completed in
90 days, after which the Ministry of Justice
has 60 days to accept or reject the application.
While the inclusion of crimes against
State security and rebellion in the Criminal
Code is not, in itself, incompatible with
the American Declaration, the application
of those concepts by the Cuban State against
human rights activists, independent labor
leaders and peaceful opponents of the
regime violates that international instrument.
[119] According to data provided by
the Cuban Commission for Human Rights
and National Reconciliation, from January
to June 2005, 11 political dissidents
were charged and convicted of pre-criminal
dangerousness. Cfr. “Aumenta el número
de presos políticos in Cuba”. Cuban
Commission for Human Rights and National
Reconciliation, available at
http://www.adcuba.org/Noticias%20Cuba/CCDHRN/CCDHRN%20Reporte%207.5.05.pdf
[120] IACHR, Annual Report
2000, OEA/Ser./L/V/II.111, Chapter
IV, par. 38.
[121] The Cuban Commission for Human
Rights and National Reconciliation reported
that in the first half of 2005, “the documented
number of opposition members jailed doubled
in comparison to the number jailed in
the second half of 2004”. Id.
[122] See, IACHR, “IACHR expresses
concern about harassment of political
dissidents”. Press Release 30/05. July
29, 2005.
[123] “Despliegan operativo contra
opositores pacíficos [Operation staged
against peaceful opposition members]”,
Cubanacán Press /
www.cubanet.org.
[124] “Allanan vivienda de dirigente
sindical independiente [Independent
labor leader’s home raided]”, Ariel Delgado
Covarrubias/
www.cubanet.org.
[125] Information received by telephone
from the Comité de Ayuda a la Disidencia-Brigada
2506 [Committee to Help Dissidents-Brigade
2506], September 30, 2005.
[135] Article 23 of the Rules of Procedure
provides that “[a]ny person or group of
persons or nongovernmental entity legally
recognized in one or more of the Member
States of the OAS may submit petitions
to the Commission, on their own
behalf or on behalf of third persons,
concerning alleged violations of a human
right recognized in, as the case may be,
the American Declaration of the Rights
and Duties of Man, the American Convention
on Human Rights, the Additional Protocol
in the Area of Economic, Social and Cultural
Rights, the Protocol to Abolish the Death
Penalty, the Inter-American Convention
to Prevent and Punish Torture, the Inter-American
Convention on Forced Disappearance of
Persons, and/or the Inter-American Convention
on the Prevention, Punishment and Eradication
of Violence Against Women, in accordance
with their respective provisions, the
Statute of the Commission, and these Rules
of Procedure. The petitioner may
designate an attorney or other person
to represent him or her before the Commission,
either in the petition itself or in another
writing.”
|