May 29, 2006

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.

[63] IACHR, Annual Report 2002, Chapter IV, Cuba, par. 7.

[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.

[73] Amnesty International. AI Public Statement: AMR 25/019/2005. August 9, 2005.

[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 (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.

[85] Declaration of Principles on Freedom of Expression, adopted in Washington, DC, in October 2000, available at (last visited on November 14, 2005). Hereinafter, the “Declaration of Principles.”

[86] Id., Principle I.

[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.

[91] Reporters Without Borders (RSF), January 5, 2005,

[93] Id.

[94] Committee to Protect Journalists (CPJ), August 25, 2005, at

[97] Id.

[107] Report of the Office of the Rapporteur for Freedom of Expression 2005, Chapter II, par. XXX.

[109] International Press Institute (IPI), May 19, 2005, at

[110] Id.

[113] Id.

[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. 

[118] With regard to this situation, the Commission has held that:

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.

Cfr. IACHR, Annual Report 2001, OEA/Ser./L/V/II.114, Chapter IV, par. 19.

[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

[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 /

[124]Allanan vivienda de dirigente sindical independiente [Independent labor leader’s home raided]”, Ariel Delgado Covarrubias/

[125] Information received by telephone from the Comité de Ayuda a la Disidencia-Brigada 2506 [Committee to Help Dissidents-Brigade 2506], September 30, 2005.

[126] American Declaration, Article XIV.

[127] Id., Article XXI.

[128] Id., Article XXII.

[129] Inter-Am. Ct. H.R., Case of Baena Ricardo et al. Judgment of February 2, 2001, Ser. C, No. 72, par. 156.

[130] Cuba ratified ILO Convention 87 on Freedom of Association and Protection of the Right to Organise on June 25, 1952, and ILO Convention 98 on the Right to Organise and to Bargain Collectively on April 29, 1952.

[131] Part of the information was supplied by the Grupo por la Responsabilidad Social Corporativa en Cuba [Group for Corporate Social Responsibility in Cuba] at the hearing before the IACHR on October 14, 2005.

[132] American Declaration, Article VIII.

[133] UN Human Rights Committee, General Comment No. 27, November 2, 1999, par. 5. Inter-Am. Ct. H.R., Ricardo Canese Case. Judgment of August 31, 2004. Ser. C No. 111, par. 115.

[134] IACHR, Annual Report 1996, Chapter V, Cuba, par. 60; Annual Report 2004, Chapter IV, Cuba, pars. 78 to 82.

[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.”

[136] IACHR, Annual Report 1999, Situation of Human Rights in Cuba, Chapter IV, par. 64, OEA/Ser.L/II.106, Doc. 3 rev., April 13, 2000; IACHR, Annual Report 2000, Situation of Human Rights in Cuba, Chapter IV, par. 92, OEA/Ser.L/II.111, Doc. 20 rev., April 16, 2001.

[137] IACHR, Annual Report 1999, Situation of Human Rights in Cuba, Chapter IV, par. 64, OEA/Ser.L/II.106, Doc. 3 rev., April 13, 2000; IACHR, Annual Report 2000, Situation of Human Rights in Cuba, Chapter IV, par. 92, OEA/Ser.L/II.111, Doc. 20 rev., April 16, 2001.


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