Castro and Cuba: From the Revolution to the Present (Interlink Illustrated Histories Series)
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Yet no facts have been introduced in this case to show either that the alleged victims were detained by virtue of an order issued by a competent judge or that the legality of their detention was ascertained without delay by a court. The Commission considers that the detention of the alleged victims in the present case is also arbitrary because of the non-observance of their right to an impartial trial.
This circumstance, which falls under the third criterion adopted by the United Nations Working Group, will be analyzed at greater length in the section of this report that pertains to Article XXVI of the American Declaration, which recognizes the right to an impartial trial. Given that the victims were not tried without delay by a competent judge to ascertain the legality of their detention, the Commission concludes that the State violated Article XXV of the American Declaration to the detriment of each and every one of the alleged victims.
Article XXV of the American Declaration also provides that anyone who has been deprived of his liberty has the right to be tried without undue delay. The information that the Commission received in November concerning the situation of Mr. Rafael Millet Leyva indicates that he has not yet been tried and convicted; rather, he is being held in preventive custody since March 21, , on charges of contempt and possession of enemy propaganda.
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The Commission notes that for almost three years, he has been held in preventive custody, without a reasonable explanation as to why his treatment should be any different from that accorded to the other alleged victims. The Commission considers that in the case of Mr. Millet Leyva, preventive detention has become a substitute for a prison sentence and is not justified by relevant and sufficient criteria that pre-existing law establishes objectively and within reason. The Commission thus concludes that Mr.
Finally, Article XXV of the American Declaration provides that every individual who has been deprived of his liberty has the right to humane treatment. The Commission considers that the responsibility of the State with regard to the integrity of the persons in its custody is not limited to the negative obligation of abstaining from torturing or mistreating such persons.
Because prisons are places where the State has total control over the lives of the inmates, its obligations toward them include, among other things, to protect them from acts of violence from any source. In the instant case, the facts alleged indicate that during their incarceration, some of the alleged victims have been subjected to inhumane and degrading treatment; some have been mistreated and even subjected to physical and psychological torture. All accommodation provided for the use of prisoners and in particular all sleeping accommodations shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation.
In all places where prisoners are required to live or work, a the windows shall be large enough to enable the prisoners to read or work by natural light, and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation; and b artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight.
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To this end, space, installations and equipment shall be provided. Furthermore, a number of the prisoners are being held in solitary confinement and are suffering from all the serious physical and psychological effects that such confinement can cause. The Inter-American Court has held that solitary confinement is itself a form of cruel and inhuman treatment. Moreover, the Commission considers that when the State deprives a person of liberty, it assumes the obligation of providing each prisoner with the necessary medical attention.
The medical services should be organized in close relationship to the general health administration of the community or nation. They shall include a psychiatric service for the diagnosis and, in proper cases, the treatment of states of mental abnormality. Where hospital facilities are provided in an institution, their equipment, furnishings and pharmaceutical supplies shall be proper for the medical care and treatment of sick prisoners, and there shall be a staff of suitable trained officers.
The medical officer shall see and examine every prisoner as soon as possible after his admission and thereafter as necessary, with a view particularly to the discovery of physical or mental illness and the taking of all necessary measures; the segregation of prisoners suspected of infectious or contagious conditions; the noting of physical or mental defects which might hamper rehabilitation, and the determination of the physical capacity of every prisoner for work.
The facts in the present case indicate that a number of the alleged victims are suffering from health problems that either surfaced or have worsened since their imprisonment, yet those very same alleged victims are not receiving proper medical care. Given the foregoing, the Commission concludes that the State has violated the right to humane treatment during deprivation of liberty, recognized in Article XXV of the American Declaration, to the detriment of each of the alleged victims. The Commission further observes that the violation of the right to protection against arbitrary detention constitute as well a violation of Article I of the Declaration in detriment of every one of the victims.
The Commission further observes that the violation of Article I of the Declaration in detriment of each victim include those who were granted conditional release. However, the special leave does not mean that its beneficiaries have been cleared of any crime or their sentences stayed. The Commission therefore concludes that the State violated the right to liberty, security and personal integrity recognized in Article I of the Declaration, to the detriment of each of the alleged victims. Presumption of innocence implies that, if the accused must be jailed during trial, he or she is still innocent from the legal standpoint.
This right implies that an accused does not have to prove that he or she did not commit the crime with which he or she is charged, since the accuser bears the onus probandi. The Commission confirms that given the particular characteristics of these trials, no exceptional circumstances were present to justify the need for restrictions.
The proceedings could have been public without adversely affecting the interests of justice. On a number of occasions the Commission has stressed the fact that the right to trial within a reasonable period is based, inter alia, on the need to avoid undue delays that have the effect of denying justice. Nevertheless, the right to a trial within a reasonable period is also based on the need to provide judges with the necessary time to enable them to properly assess the allegations of both parties, form a conviction as to the facts, and arrive at a decision through sound reasoning.
Moreover, information provided by the petitioners indicates that none of the trials held against the victims lasted more than one day. A review of the facts of this case reveals that the alleged victims were tried in very summary proceedings.
According to Articles and of the Criminal Code, the decision to apply an exceptional procedure is made at the discretion of the persons judging the given case. The judge also has authority to set the terms of each of the elements of the trial, including preliminary proceedings, oral proceedings, and the terms of the remedies. In this connection, the Commission observes with concern that none of the convictions that it had access to establish the exceptional grounds that justify the use of very summary proceedings.
In this regard, the Commission wishes to recall that, although summary proceedings per se are not contrary to the right to a fair trial, the requirement of a brief and simple procedure established in Article XVIII of the American Declaration cannot be protected in a process that does not afford the accused all the guarantees of due process, especially when the possible penalty is irreversible, i. In particular, the right to be judged in a reasonable period cannot affect fundamental procedural protections of due process, especially the right to suitable time and means to prepare a defense.
On this point, the Commission emphasizes that, in order to protect the essential rights of the victims, even in very summary proceedings they must be ensured sufficient time to prepare their defense. This includes, at the least, the time needed to review the file, to be informed in advance of the charges against them, the possibility of identifying, subpoenaing, and summoning witnesses, and the opportunity to meet personally and privately with the defense counsel of their choice for a sufficient amount of time.
Castro and Cuba : From the Revolution to the Present
In addition, judicial guarantees require that victims be judged through processes that afford the court the possibility of carefully weighing the evidence and the arguments of fact and law of the parties on the basis of sound reasoning. Accordingly, convictions should state the foundations of fact and law on the basis of which the decisions were made.
In the instant case, the Commission notes that the convictions do not show suitable justification for the conclusions arrived at by the judges. Moreover, the Commission observes with concern that the convictions do not rely on strictly legal arguments to arrive at very complex conclusions, such as that the intent of the victims was to subvert the domestic order of society or to eliminate the Cuban State.
The Commission confirms that in many of the verdicts, the courts make complex and serious decisions without showing a clear or founded relationship between the facts and the legal appraisal of their nature. Based on these considerations, the Commission considers that the proceedings in which the State convicted the alleged victims violated the right to fair trial recognized in Article XVIII of the American Declaration. The Commission has repeatedly maintained that Cuba is the only country in the hemisphere where it can be categorically asserted that freedom of expression does not exist.
This assertion is made again in its Annual Report for , which reports mistreatment of imprisoned journalists, pre-publication censorship, acts of intimidation against journalists, the application of contempt laws, and indirect violations of freedom of expression.
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In examining this section of the report, the Commission must initially determine whether in the present case the criminal offenses described in Article 91 of the Criminal Code and in Articles 4, 6, 7, 8, 9, 10 and 11 of Law 88 are incompatible with the exercise of the freedom of expression established in Article IV of the American Declaration. The Inter-American Court has also indicated that freedom of expression has two dimensions, individual and collective, which must be simultaneously guaranteed by the States. All people should be afforded equal opportunities to receive, seek and impart information by any means of communication without any discrimination for reasons of race, color, sex, language, religion, political or other opinions, national or social origin, economic status, birth or any other social condition.
Nevertheless, the Commission considers it important to clarify that the right to freedom of expression is not an absolute right and may be subject to constraints. As the Inter-American Court has pointed out, restrictions on the freedom of expression should be established in a law and aim to protect legitimate objectives. Moreover, the constraints should be necessary to ensure such protection, and may not be applied before an idea or information is imparted, only afterwards. Accordingly, on this point the Commission considers it important to reiterate that the States should abstain from undertaking any act to control information or ideas before they have been imparted, as this constrains individuals and society as a whole from exercising their right to freedom of expression.
The Commission is therefore concerned that both Article 91 of the Criminal Code of Cuba and Law 88 criminally penalize —even with death penalty— conducts that constrain the expression of thought itself and the right and freedom to seek, receive and impart information and ideas. Likewise, the Commission has noted that in several passages of the convictions the judges make legal appraisals that openly contradict the aforementioned principles. The following paragraphs transcribe fragments of some of those rulings.
Based on the foregoing considerations, it can certainly be established that in the instant case, the criminal offenses described in Article 91 of the Criminal Code and Law 88 are a means to silence ideas and opinions because they discourage any type of criticism for fear of the aforementioned penalties. In opinion of the Commission, a regulation of this nature impairs the essence of the right of freedom of investigation, opinion, expression, and dissemination established in Article IV of the American Declaration.
Moreover, the Commission emphasizes that, in view of the collective dimension of this right, these rules affect not only the individuals punished with their application by the Cuban courts, but also the entire Cuban society. Furthermore, to the extent that victims have been tried and condemned with the application of laws that are incompatible with the exercise of the right to freedom of investigation, opinion, expression, and dissemination, the Commission also concludes that Article IV of the American Declaration has been violated to the detriment of each of the victims.
The Commission has also confirmed that the State ordered the confiscation of typewriters and computers,  books,  personal documents and files,  still and video cameras, and radio equipment  used by the alleged victims in their journalistic pursuits and research. Lastly, the Commission has also received information to the effect that some of the alleged victims are unable to make telephone calls to family, on the grounds that they might be reporting human rights violations inside the prison.
The Commission has repeatedly pointed out that the right of assembly and the right of association are interlinked. This includes the right to form associations, and the right to join existing associations.
It encompasses all facets of life in modern society. Exercise of these rights cannot be subject to any arbitrary restrictions. The social and mass organizations have all the authorities they require to engage in such activities. Their members have complete freedom of speech and opinion, based on the unlimited right of initiative and criticism. Any violation of this principle shall be punishable. In the present case, a number of the alleged victims were convicted for having promoted or organized public demonstrations to protest the regime, even though there is nothing in the records to indicate that these were not peaceful demonstrations.
Others still were convicted for having held meetings in their homes with other activists, or for having conducted organized labor activities. This is evident in the convictions of the victims. Based on these considerations, the Commission concludes that by convicting the alleged victims for having exercised their rights of assembly and association, the State violated Articles XXI and XXII of the American Declaration, to the detriment of each of the alleged victims.
Nowadays, no legal act that is in conflict with this fundamental principle is acceptable, and discriminatory treatment of any person, owing to gender, race, color, language, religion or belief, political or other opinion, national, ethnic or social origin, nationality, age, economic situation, property, civil status, birth or any other status is unacceptable. The American Declaration, for its part, prohibits discrimination by reason of race, gender, language, creed or any other factor, thereby disallowing any other form of discrimination, which would include discrimination based on political persuasion or some other factor.
Article II of the American Declaration establishes that every State has the obligation not to introduce discriminatory regulations into its legal framework.