Cuba I. Introduction



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G. Guarantees for a fair trial, due process of law and effective access to justice


  1. The IACHR has referred repeatedly in its reports on Cuba to the lack of independence and impartiality of the courts, and to the lack of judicial guarantees and due process guarantees in the trials of persons considered ideological dissidents, a particularly grave situation given the use of highly summary procedures.




  1. The American Declaration establishes that every person has the right to resort to the courts122, to protection from arbitrary arrest123, and to due process.124 In addition, it indicates that every human being has the right to liberty125 and no one may be deprived of it except in those cases and in the manner established by pre-existing laws.126 According to the American Declaration, every individual who has been deprived of liberty has the right for the judge to verify without delay the legality of the measure and to be judged without undue delay, or otherwise to be released.127 In addition, every person accused of a crime has the right to be heard impartially and in public, to be judged by courts previously established pursuant to pre-existing laws, and not to be subject cruel, infamous, or unusual punishment.128




  1. The case-law of the inter-American system has consistently argued that all the organs that perform judicial functions have the duty to adopt fair decisions based on full respect for the guarantees of due process.




  1. The right to a trial before a competent, independent, and impartial court previously established by law has been interpreted by the Inter-American Commission and the Inter-American Court to entail certain conditions and standards that must be satisfied by the courts in charge of substantiating any criminal accusation or determining a person’s civil, tax, labor, or other rights or obligations.129




  1. This right to a fair trial, supported by the fundamental concepts of the independence and impartiality of justice, the criminal law principles recognized by international law – presumption of innocence, the principle of non bis in idem, and the principles of nullum crimen sine lege and nulla poena sine lege, as well as the precept that no one may be convicted of a crime except on the basis of individual criminal liability – are widely considered general principles of international law essential for the proper administration of justice and the protection of fundamental human rights.130 The requirement of independence, in turn, means that the courts must be autonomous of other branches of government, free from influences, threats, and interference of any origin or for any reason, and have other characteristics necessary for ensuring the appropriate and independent performance131 of judicial functions, including the stability of a position and adequate professional training.132 The impartiality of the courts133 should be evaluated from a subjective and objective perspective to ensure the non-existence of real prejudice on the part of the judge or court, as well as sufficient guarantees to avoid any legitimate doubt in this regard. These requirements, in turn, require that the judge or court not harbor any real bias in a particular case and that the judge or court not be reasonably perceived as being inclined by such a bias.134




  1. With respect to the guarantees of independence and impartiality, Article 121 of the Constitution of Cuba establishes:

The courts constitute a system of state bodies which are set up with functional independence from all other systems and subordinate only to the National Assembly of People's Power and the Council of State.




  1. In that regard, the Commission reiterates that the deficiencies of the Cuban judicial apparatus begin with the Constitution, which does not establish a separation of powers that ensures the independence of the administration of justice. The Commission recognizes that mere constitutional stipulation of the independence of the judicial organs with respect to the political departments of government is not a sufficient condition for the existence of a proper administration of justice, but it does consider that it is a necessary condition. 




  1. The subordination of the courts of justice to the National Assembly of People’s Power, and especially to the Council of State, establishes a relationship of dependence with respect to the Executive branch. This relationship is reinforced by the function of the Council of State of “giving the laws in force, if necessary, a general and binding interpretation.” Also, Article 128 of the Constitution establishes: “The Attorney General of the Republic receives direct instructions from the Council of State.” 




  1. The information available indicates that during 2012, criminal proceedings, especially those brought against political dissidents and opponents, were not conducted in a manner respectful of the international standards on judicial guarantees. In addition, the existence of constitutional provisions with ideological or political references such as Article 5 of the Constitution cited above violate the principle of equality before the law because they place members of the Communist Party on a higher plane than the rest of Cuban citizens who attempt to have an alternative opinion or who take issue with the political system in place.




  1. In light of the foregoing considerations, the IACHR observes that the information received during 2012 indicates that the situation related to the structural lack of independence and impartiality persists; and the lack of judicial guarantees and due process in the trial of persons convicted of crimes that in some cases provide for the death penalty, and of persons considered political-ideological dissidents, is an especially serious situation due to the use of highly summary procedures preceded in most cases by arbitrary detentions. This situation is consistent with what has been observed by the Committee Against Torture of the United Nations in its 2011 report in relation to the concern expressed in view of the information that suggests violations of the rules of due process, especially in those cases that include trials for political offenses.135




  1. The information received indicates that on September 23, 2012, Emilio Plana Robert, a member of the Movimiento Resistencia y Democracia, affiliated with the Unión Patriótica de Cuba, was detained and allegedly subjected to a summary procedure that culminated in a judgment of the Municipal Court of Guantánamo on October 5, by which a sentence of 42 months in prison was imposed by application of the criminal statute on “pre-delictive social dangerousness.”136




  1. In addition, on October 15, 2012, Rafael Matos Montes de Oca, a member of the Movimiento de Resistencia y Democracia, affiliated with the Unión Patriótica de Cuba, was sentenced by a municipal court of Guantánamo to two years and six months by application of the statute on “pre-delictive social dangerousness.”137 The information available indicates that Mr. Matos was detained on September 27 by police officials at his home located in the province of Guantánamo. In addition, his family members were unable to appoint legal counsel for his defense, and denounced that the authorities had indicated that he was only under investigation.138 The hearing for the trial was held behind closed doors and lasted approximately two hours. The indictment presented by the Office of the Attorney General was said to have been based on the facts that “he did not work, he did not have good ties with his neighbors, he consumed alcoholic beverages, he wandered about at night, and he maintained relations with counterrevolutionary elements.”139




  1. On October 11, 2012, Reinaldo Castillo Martínez, a member of the Movimiento por los Derechos Humanos Miguel Valdés Tamayo, was convicted by the Municipal Court of Guanabacoa in Havana to one year of imprisonment for the crime of contempt of authority (desacato). The accusation was presented by an officer with the National Revolutionary Police of the municipality of Guanabacoa in Havana. It was reported that the detention occurred on October 4 after Mr. Castillo went to Unit 14 of the National Police to file a complaint, and that after having had an incident with officers of that Unit he was arrested. Mr. Castillo publicly denounced that the police beat him before and during the arrest. Members of the Movimiento por los Derechos Humanos denounced that the detention and subsequent conviction were due to the protest activities in which Mr. Castillo participates actively. According to the information available, Reinaldo Castillo was previously convicted in 2010 and sentenced to one year of prison for the same offense of contempt for former president Fidel Castro.140




  1. The Commission was also informed of the conviction and sentence of two years of prison imposed on trade unionist Ulises González.141 According to the information available, Mr. González, Deputy Secretary General of the Sindicato Independiente de Carpinteros por Cuenta Propia (Independent Union of Self-Employed Carpenters), was detained on November 15, 2012, and sentenced to two years in prison by decision of the People’s Municipal Court of Centro Habana on November 28, for the offense of “pre-delictive social dangerousness” after having been subjected to a summary trial.142




  1. As expressed in previous reports, the Commission considers and reiterates that it considers very serious the repeated use of summary trials in Cuba without the observance of due process guarantees including the minimum guarantees necessary for the accused to exercise his or her right to mount an adequate legal defense. This is consistent with what the concern expressed by the UN Committee Against Torture in its 2012 report that the information available suggests a failure by the State to respect and ensure due process, especially in those cases related to prosecutions for political offenses.143 The Committee expressed its concern over those safeguards that are still not guaranteed, including the failure to guarantee, from the outset of the detention, access to legal counsel, notice to a family member, an independent medical verification, and appearance before the competent judicial authority.144




  1. In addition, the Commission reiterates its concern over the provisions on certain offenses in Cuban legislation that are incompatible with the relevant international standards. The IACHR has referred repeatedly to the problems posed by the vague definition of the offense of “pre-delictive social dangerousness” of a person, established in Article 72 of the Criminal Code. According to what the State of Cuba has indicated, criminal sanctions are not enforced against the persons tried under this statute.145 Nonetheless, the IACHR notes the observation made by the Committee Against Torture in its 2012 report to the effect that other corrective measures (“re-educational, therapeutic or surveillance”) established in Articles 78 to 84 of the Criminal Code provide for the possibility of confinement for one to four years in “specialized establishments for work or study, care facilities, psychiatric institutions, or detoxification centers.” The IACHR has referred in earlier reports to how the Government of Cuba uses the criminal legislation on “dangerousness” as well as the “special proclivity of a person to commit criminal offenses” to detain opponents of the regime.146




  1. The Commission has repeatedly recommended that the State of Cuba adopt the measures necessary to bring the laws, procedures, and practices into line with international human rights provisions. In particular, the Commission has recommended reforming the criminal legislation for the purpose of ensuring the right to justice and the right to due process, and beginning a process of reforming the Constitution with a view to ensuring the independence of the judicial branch.




  1. The Commission has observed, as explained at the beginning of this report, that through very summary proceedings political dissidents and those who have attempted to flee the island have been put on trial, and that the death penalty as a result of such trials that violate minimum due process standards.147


IV. SITUATION OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS


  1. In previous reports the IACHR has valued the international opening manifested by the government of Cuba since 2008. In addition, in its 2011 report the Commission highlighted the approval of a plan of economic reforms during the Sixth Congress of the Communist Party of Cuba to “bring up-to-date the Cuban economic model with the objective of ensuring the continuity and irreversibility of Socialism.”148 The Commission valued the measures approved in relation to the purchase and sale of housing as between natural persons and the forms of transmitting property rights, as well as the regulations regarding the purchase and acquisition of vehicles.149




  1. In 2012, the Commission learned of the adoption of additional measures in the context of implementing the 2011 plan of economic reforms. In this regard, special note is made of the adoption of a series of provisions that would make it possible to open up the system of cooperatives in Cuba by establishing – gradually – that such forms of association need not be exclusively agricultural.150 According to the information published in the official daily newspaper Granma, the adoption of this new legal framework is in an initial experimental phase during which it is anticipated that more than 200 cooperatives will be established in different activities such as “transportation, the production of building materials and services, personal, domestic, and professional services (specifically translation, information technology, and accounting services).”151



  1. The Commission values the efforts made by the State in the area of economic, social, and cultural rights and reiterates its recognition of the important gains made by Cuba in relation to the millennium development goals established by the United Nations.152 The IACHR values in particular the gains made in maternal health, especially the fact that 100% of births were attended to by qualified personnel.153




  1. The IACHR especially salutes the elimination of child malnutrition in Cuba. The United Nation Children’s Fund (UNICEF) in its report “Progress for Children: A Report Card on Nutrition,” determined that Cuba is the only country in Latin America and the Caribbean that has eliminated child malnutrition, a scourge that according to that same report affects the 7% of all children under 5 years of age in Latin America and the Caribbean who suffer serious problems of child malnutrition.154




  1. Regarding the advances in economic, social and cultural rights, the delegate of the Cuban State indicated before the UN Committee on the Elimination of Racial Discrimination that “Access to all levels of education was free and universal. Cuba had exceeded the six objectives of the UNESCO “Education for All” programme and had fully achieved the tirad and fourth Millennium Development Goals. The enrolment rate at all levels of schooling was over 99 per cent, and almost 70 per cent of young people studied at university. The right to culture was fully guaranteed and available to all sectors of society. The right to work had constitutional status, and at the end of 2010 the unemployment rate had stood at 1.6 per cent. Every Cuban was guaranteed access to free, high-quality health services under the national health system. Cuba’s health indicators were similar to those of developed countries; in 2010, the infant mortality rate had been 4.4 per 1,000 live births and 23 of the country’s municipalities had recorded zero rates. Every member of Cuba’s population was guaranteed social protection through the system of social security and welfare.”155




  1. Also, the Cuban State expressed before the UN Committee on the Elimination of Discrimination against Women that “As a result of medical and health care and State measures to improve the quality of life of the general population, life expectancy in Cuba has now attained 77.97 years, one of the highest values of this indicator in the regions, and an improvement over the figure of 76 years in the previous report. For women, the indicator is 80.02 years, 4.02 years higher than the life expectancy for men. The overall fertility rate is 1.70 children per woman, and the gross rate of reproduction is 0.82 daughters per woman.”156


V. SITUATION OF PARTICULAR GROUPS


  1. In the process of evaluating the human rights situation the Commission has received information related to the situation of certain groups in particular, and the gains and challenges they pose related to the enjoyment of their rights given that they face structural situations – analyzed throughout this report – that have a disproportionate impact on them, bearing in mind their special situation of vulnerability due to the context of discrimination to which they have been subjected historically. In this regard, the IACHR makes additional mention, in this section, of the information received in relation to the protection of the rights of lesbian, gay, trans, bisexual, and intersex persons; and the situation of the Afrodescendent population in Cuba.




    1. Situation of lesbian, gay, trans, bisexual, and intersex (“LGTBI”) persons




  1. In relation to the protection of the rights of the LGTBI community in Cuba, in 2012 the IACHR received information on certain progress in this area. In that regard, LGTBI organizations celebrated express recognition by the Communist Party of Cuba of sexual orientation as one of the grounds of discrimination that need to be addressed in Cuba.157 In addition, the IACHR recognizes the efforts made by the National Center for Sex Education (CENESEX), a state entity that works on issues of sexual diversity, to promote and protect the rights of LGTBI persons.




  1. In November 2012 the first trans delegate was elected to the Municipal Assemblies of People’s Power in the municipality of Caibarién. Adela – registered at birth as José Agustín Hernández González – 48 years of age, was elected municipal delegate in an event that is unprecedented in Cuban history.158




  1. In this respect, it is worth noting that the General Assembly of the OAS urged the States “within the parameters of the legal institutions of their domestic systems to eliminate, where they exist, barriers faced by [LGBTI] persons in access to political participation and in other areas of public life.”159




  1. Without prejudice to the foregoing, in 2012 the Commission also learned of situations of discrimination and violence with respect to LGTBI persons in Cuba. With respect to acts of violence, on January 4, 2012, in the municipality of Guaimaro in the province of Camagüey, a trans woman 18 years of age, Jessica – registered at birth as Luis Leidel – was allegedly beaten by police agents without any motivation. According to the information received by the IACHR, Jessica was subsequently taken to a police station, where she was once again beaten and left in a cell in which she died due to the blows received.160




  1. In this respect, the IACHR recalls that it is an obligation of the Cuban State to investigate such incidents at its own initiative and to punish those responsible. The Commission urges the State to open lines of investigation that take into account whether these acts were committed because of the victim’s sexual orientation, gender identity, or gender expression. In this regard it is noteworthy that the OAS General Assembly this year approved Resolution 2721 “Human Rights, Sexual Orientation, and Gender Identity” by which the member states of the OAS resolved to “condemn acts of violence and human rights violations committed against persons by reason of their sexual orientation and gender identity; and to urge states to strengthen their national institutions with a view to preventing and investigating these acts and violations and ensuring due judicial protection for victims on an equal footing and that the perpetrators are brought to justice.”161




  1. In relation to acts of discrimination, in May 2012, the Observatorio Cubano de los Derechos LGBT (OBCUD LGBT) denounced situations of repression against them from the start of the Fifth Campaign against Homophobia in Cuba (V Jornada contra la Homofobia en Cuba).162 According to the information received by the IACHR, some members of OBCUD LGBT were kidnapped, locked up, and interrogated in jails by state security officers so that they would not participate in the activities organized by the National Center for Sex Education (CENESEX) in the framework of that campaign on May 11, 2012. The organization noted that such repression was due to its maintaining a position different from that of the governmental entity CENESEX, and that they have publicly indicated that they would “made a special appeal to” (“emplazarían”) Mariela Castro, director of CENESEX, if they were to encounter her.163 This organization indicates that it has attempted to “legalize its situation” to win legal recognition of its status as an organization at the domestic level. Nonetheless, they allege that the State and the CENESEX do not recognize them.164




  1. On November 18, 2012, the Proyecto Cubano Shui Tuix alleged that police authorities were harassing the LGTBI population in Havana, including shutting down and imposing excessive controls in bars and restaurants where LGTBI persons socialize.165




  1. The IACHR reiterates to the Cuban Government that the right of all persons to live free from discrimination is guaranteed by international human rights law, the American Declaration and the American Convention. The IACHR urges Cuba to take actions to prevent and respond to violations of the human rights of LGTBI persons, including adopting legislation, public policies, and campaigns against discrimination based on sexual orientation, general identity, and gender expression.


B. Situation of the Afrodescendent population


  1. Official figures from the 2002 Census of Population and Housing in Cuba indicate that approximately 10.1% of the population is Afrodescendent.166




  1. In 2012, the IACHR monitored the situation of the Afrodescendent population in Cuba. During the 146th regular period of sessions a hearing was held on the situation of the Afrodescendent population in Cuba in which the Commission received information on the challenges Afro-Cubans face in the observance and enjoyment of their rights.




  1. The Commission takes into account the context of discrimination to which Afrodescendent persons in the Americas have been and continue to be subjected.167 In that regard, the information received indicates that Afro-Cubans are particularly vulnerable in the face of arrangements of exclusion and racism that are aggravated by the failure to adopt effective political and institutional measures to eradicate such discrimination.




  1. In this respect, the IACHR notes what was observed by the United Nations Committee on the Elimination of Racial Discrimination in its 2012 report, to the effect that the Cuban legal order, specifically in the criminal legislation, does not establish racial motivation as an aggravating circumstance for determining criminal liability.168




  1. The IACHR takes into account that the State has made efforts to address the situation of racial discrimination in Cuba, including affirmative actions aimed at ensuring greater representation of Afrodescendent persons in public office.169 According to official figures, of the 611 deputies who make up the National Assembly of People’s Power, approximately 19.5% are Afrodescendent persons.170 In addition, in the elections of delegates to the Municipal Assemblies of People’s Power held in October 2012, of the 14,537 persons elected, 11.61% are Afro descendants, according to the data offered by the National Electoral Commission.171 In that regard, the IACHR observes that while inclusion of the Afrodescendent population in public office has been achieved, this measure does not address the design of a public policy aimed at ensuring the effective representation of the Afro-Cuban population in matters of national interest, mindful that the election of such positions is not held with the full guarantees of a democratic system, as analyzed above. In effect, according to the information received, the elections of delegates to the municipal assemblies were not held in conditions that ensured genuine political representation of the Afro-Cuban population.




  1. The Commission further notes the existence of specialized commissions entrusted with studying this phenomenon in Cuba, such as the “Commission against racism and racial discrimination of the Union of Writers and Artists of Cuba (UNAEC)” and the “Inter-institutional Commission coordinated by the José Martí National Library,” in addition to the creation of a “coordinating group to examine and propose actions linked to the racial question, under the Central Committee of the Communist Party of Cuba.”172 In this respect, the IACHR received information that indicates that the composition of these commissions is entrusted to an official organ, the “Central Committee of the Communist Party.”




  1. In light of the states’ obligation to adopt affirmative measures to reverse situations of discrimination, as well as their duty of special protection vis-à-vis the actions of private persons who also further such discrimination, in analyzing the situation of Afrodescendent persons in the Region the Commission has highlighted the non-existence of independent national human rights agencies and/or institutions.173 In the case of Cuba, the IACHR observes that there is no independent national body authorized to monitor and address, in particular, issues related to the situation of racism and racial discrimination that affects Afro-Cuban persons.174




  1. In addition, the Commission has been informed that in the face of government initiatives related to the rights of Afrodescendent persons, there would appear to be limited access to the activities undertaken pursuant to such initiatives by civil society and independent organizations also dedicated to the promotion and defense of the human rights of Afro-Cuban persons. Accordingly there do not appear to be forums for engagement with official agencies to address the structural issues of discrimination.




  1. In 2012, the Commission also continued to receive information on the establishment of racial profiles as a selective and discretional mechanism for detaining and investigating persons, as a practice often used by the state authorities that has a disproportionate impact on Afrodescendent persons, who face many levels of discrimination, giving rise to a situation of constant risk for Afro-Cubans. That context is aggravated by the lack of public policies aimed at generating an effective process of raising the awareness of the population so as to lead to the elimination of racial prejudices and stereotypes.


V. RECOMMENDATIONS


  1. Taking into consideration all the foregoing, the Commission once again states that the restrictions on political rights, the freedom of expression and the dissemination of ideas, the lack of elections, the lack of independence of the judiciary, and the restrictions on the right to residence and movement add up to a permanent situation of violation of the fundamental rights of Cuban citizens in Cuba and urges the State to make the reforms needed in keeping with its international human rights obligations.




  1. The Commission urges the State of Cuba to bring its procedural laws into line with the applicable international standards on due process so that persons who go before the courts for the determination of their rights and responsibilities can enjoy minimum legal guarantees to mount a defense. In particular, it should void the convictions of the victims in case 12,476.



  1. In addition, the Commission urges the State of Cuba to adopt the legislative and other measures necessary to ensure that the death penalty is not applied in violation of the principles of due process and a fair trial conducted before a competent, independent, and impartial court previously established by law.



  1. The IACHR also urges the Cuban State to eliminate the provisions on “dangerousness” and “special proclivity of a person to commit crimes” found in the Criminal Code.



  1. The Commission urges the Cuban State to adopt measures to prevent and eradicate the different forms of harassment of those who exercise the right to association and assembly for humanitarian and trade union purposes, and against those who are dedicated to defending and promoting human rights.




  1. The Commission also recommends to the Cuban State that it adopt the measures necessary to ensure its citizens the right to freely determine their place of residency, freedom of movement in Cuban territory, and the freedom to leave and enter the country.



4 IACHR, Special Reports from the following years: 1962; 1963; 1967; 1970; 1976; 1979; 1983. At www.iachr.org

5 IACHR, Chapter IV of the Annual Report for the following years: 1990-1991; 1991; 1992-1993; 1993; 1994; 1996; 1997; 1998; 1999; 2000; 2001; 2002; 2003; 2004; 2005; 2006; 2007, 2008, 2009, 2010 and 2011. at www.iachr.org

6 See: IACHR, Merits Report No. 47/96, Case 11,436, Victims of the Tugboat “13 de marzo,” October 16, 1996; IACHR, Merits Report No. 86/99, Case 11,589, Armando Alejandre Jr., Carlos Costa, Mario de la Peña, and Pablo Morales, September 29, 1999; IACHR, Admissibility Report No. 56/04, http://www.cidh.org/annualrep/2004eng/Cuba.12127eng.htm, Vladimiro Roca Antúnez et al., October 14, 2004; IACHR, Admissibility Report No. 57/04, http://www.cidh.org/annualrep/2004eng/Cuba.771.03eng.htm, Oscar Elías Biscet et al., October 14, 2004; IACHR, Admissibility Report No. 58/04, http://www.cidh.org/annualrep/2004eng/Cuba.844.03eng.htm, Lorenzo Enrique Copello Castillo et al., October 14, 2004; IACHR, Merits Report No. 67/06, http://www.cidh.org/annualrep/2006eng/CUBA.12476eng.htm, Oscar Elías Biscet et al., October 21, 2006; IACHR, Merits Report No. 68/06, http://www.cidh.org/annualrep/2006eng/CUBA.12477eng.htm, Lorenzo Enrique Copello Castillo et al., October 21, 2006. At: www.iachr.org

7 When it is notified of an IACHR decision, the Cuban State either does not respond or sends a note to the effect that the Inter-American Commission on Human Rights does not have competence -and the Organization of American States does not have the moral authority- to examine issues related to Cuba.

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

9 IACHR, Annual Report 2002, Chapter IV, Cuba, paragraphs 3-7. See also IACHR, Annual Report 2001, Chapter IV, Cuba, paragraphs 3-7. IACHR, Seventh Report on the Sit uation of Human Rights in Cuba, 1983, paragraphs 16-46.

10 On October 25, 2011, the United Nations General Assembly adopted for the 20th consecutive year a resolution that rejects the economic and trade embargo by the United States against Cuba since 1962. UN, Resolution. A/RES/66/6 “Necessity of ending the economic, commercial and financial embargo imposed by the United States of America against Cuba.”

11 Articles 479 and 480 of the Criminal Procedure Law establish the especially expedited summary proceeding:

Article 479: In a case of exceptional circumstances, the Attorney General may propose to the President of the People’s Supreme Court and the latter shall decide whether to use the especially expedited summary proceeding to prosecute those crimes that any court has jurisdiction to hear, except for those crimes that are the jurisdiction of the People’s Municipal Courts.

Article 480. In especially expedited summary proceedings, the procedures that this law establishes for preliminary proceedings, oral trial and appeals may be reduced to the extent that the court with jurisdiction deems necessary. Title X, Especially Expedited Summary Proceeding. Articles 479 and 480. [Translation ours].

12 IACHR, Annual Report 2008, Chapter IV, Cuba, para. 177.

13 United Nations, (2009) Universal Periodic Review, Report of the Working Group on the Universal Periodic Review of Cuba, Additions, Responses provided by Cuba on the recommendations listed under paragraph 131 of the report of the Working Group on the Universal Periodic Review of Cuba. At: http://lib.ohchr.org/HRBodies/UPR/Documents/Session4/CU/A_HRC_11_22_Add1_CUB_E.pdf

14 Article 98: 1. Anyone who takes up arms to achieve any of the following ends shall be sentenced to prison for a period of ten to twenty years or to the death penalty: a) to prevent the higher organs of the State and of Government from discharging their functions, either entirely or partially and even if temporarily; b) to change the economic, political and social order of the socialist State; c) to change, in whole or in part, the Constitution or the form of government it establishes.

2. Any person who commits an act intended to encourage others to take up arms shall face the same punishment if he or she accomplishes his or her ends; if not, the penalty shall be imprisonment for four to ten years.



15 Article 120: 1. The penalty shall be imprisonment for ten to twenty years or death for anyone who, in order to establish or maintain one racial group’s domination over another and acting in accordance with policies for racial extermination, segregation or discrimination: a) denies members of that group the right to life and the right to liberty through murder, egregious attacks on their physical or mental security or dignity; torture or cruel, inhuman or degrading treatment or punishment; arbitrary detention and unlawful imprisonment; b) imposes on that group legislative or other measures intended to prevent it from participating in the country’s political, social, economic, or cultural life and deliberately creates conditions that thwart the group’s full development by denying its members their fundamental rights and freedoms; c) divides the population along racial lines by creating reservations and ghettos, prohibiting marriage between members of different racial groups and expropriating their property; d) exploits the labor of the group’s members, especially by subjecting them to forced labor.

1. 2. If a person in any way persecutes or harasses organizations and persons who are opposed to apartheid or who struggle against it, he or she shall face imprisonment for ten to twenty years.



2. 3. Responsibility for the acts provided for in the preceding paragraphs shall be irrespective of the country in which the culpable parties act or reside and applies, irrespective of motive, to private citizens, members of organizations and institutions and representatives of the State. [Translation ours]

16 Cuban Criminal Code, Article 190.

17 Cuban Criminal Code, Article 263.

18 Cuban Criminal Code, Article 298.

19 Cuban Criminal Code, Article 299.

20 Cuban Criminal Code, Article 310.

21 Cuban Criminal Code, Article 327.

22 As the Inter-American Court has observed, “[a]mbiguity in describing crimes creates doubts and the opportunity for abuse of power, particularly when it comes to ascertaining the criminal responsibility of individuals and punishing their criminal behavior with penalties that exact their toll on the things that are most precious, such as life and liberty.” See, for example, I/A Court H.R., Case of Castillo Petruzzi et al. Judgment of May 30, 1999. Series C No. 52, para. 121.

23 IACHR, Merits Report No. 68/06, http://www.IACHR.org/annualrep/2006eng/CUBA.12477eng.htm, Lorenzo Enrique Copello Castillo et al., October 21, 2006, para. 96.

24 IACHR,Merits Report No. 68/06, http://www.IACHR.org/annualrep/2006eng/CUBA.12477eng.htm, Lorenzo Enrique Copello Castillo et al. October 21, 2006.

25 Cf. Restrictions to the Death Penalty (Arts 4(2) and 4(4) American Convention on Human Rights). Advisory Opinion OC-3/83 of September 8, 1983. Series A. No. 3.

26Cf. Case of Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago. Merits, Reparations and Costs. Judgment of June 21, 2002. Series C No. 94, para, 106, and Case of Raxcacó Reyes, Merits, Reparations and Costs. Judgment of September 15, 2005. Series C No. 133, para. 68. See also Restrictions to the death penalty (Arts. 4(2) and 4(4) American Convention on Human Rights), Advisory Opinion OC-3/83 of September 8, 1983. Series A. No. 3.

27Cf. Case of Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago. Merits, Reparations and Costs. Judgment of June 21, 2002. Series C No. 94, para 103, 106 and 108, and Case of Raxcacó Reyes, Merits, Reparations and Costs. Judgment of September 15, 2005. Series C No. 133, para. 81. See also Restrictions to the death penalty (Arts. 4(2) and 4(4) American Convention on Human Rights), Advisory Opinion OC-3/83 of September 8, 1983. Series A. No. 3., para. 55.

28Cf. Case of Fermín Ramírez, Merits, Reparations and Costs. Judgment of June 20, 2005. Series C No. 126, para. 79. See also Restrictions to the death penalty (Arts. 4(2) and 4(4) American Convention on Human Rights Advisory Opinion OC-3/83 of September 8, 1983. Series A. No. 3., para. 55, and The Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process of Law. Advisory Opinion OC-16/99 of October 1, 1999. Series A No. 16, para. 135.
29Believing that abolition of the death penalty contributes to enhancement of human dignity and progressive development of human rights”, Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty. Adopted and proclaimed by General Assembly resolution 44/128 of 15 December 1989. At: http://www2.ohchr.org/english/law/ccpr-death.htm

30 United Nations, (2009) Universal Periodic Review, Report of the Working Group on the Universal Periodic Review of Cuba, Additions, Responses provided by Cuba on the recommendations listed under paragraph 131 of the report of the Working Group on the Universal Periodic Review of Cuba. At: http://lib.ohchr.org/HRBodies/UPR/Documents/Session4/CU/A_HRC_11_22_Add1_CUB_E.pdf

31 American Declaration, Article I.

32 American Declaration, Article XXV.

33 American Declaration, Article XXV.

34 American Declaration, Article XXVI.

35 IACHR, Annual Report of the Inter-American Commission, 1998, April 16, 1999.

36 IACHR, Annual Report of the Inter-American Commission, 1998, April 16, 1999.

37 IACHR, Annual Report of the Inter-American Commission, 1998, April 16, 1999.

38 IACHR, Annual Report of the Inter-American Commission, 1998, April 16, 1999.

39 IACHR, Annual Report 1990-1991, p. 557; IACHR, Second Report on the Situation of Human Rights in Peru, 2000, Chapter IV, Political Rights, A.1. See also I/A Court H.R. Case of Castañeda Gutman v. Mexico. Preliminary Objections, Merits, Reparations and Costs. Judgment of August 6, 2008. Series C No. 184.

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

41 National report presented by the State of Cuba; UN, Human Rights Council, Working Group on the Universal Periodic Review, Fourth session, Geneva, February 2 to 13, 2009. A/HRC/WG.6/4/CUB/1; November 4, 2008, para. 8.

42 In Chapter 9, “Libro Blanco del 2007,” published at the official website of the Ministry of Foreign Affairs of Cuba.

43 Article 3 of the Inter-American Democratic Charter establishes as one of the essential elements of representative democracy the holding of periodic, free, and fair elections based on universal suffrage and secret ballot, as an expression of the sovereignty of the people; and the plural regime of political parties and organizations.

44 Notice of Report on the Merits No. 67/06 was given to the Cuban State and the petitioners’ representatives on November 1, 2006. See in IACHR, Press Release No. 40/06, “IACHR announces two reports on human rights violations in Cuba,” of November 1, 2006.

45 Article 91 of the Criminal Code of Cuba: “Whoever, in the interest of a foreign State, commits an act with the intent to cause damage to the independence of the Cuban State or the integrity of its territory, shall receive a sentence of between ten and twenty years or a death sentence.”

46 See complete report at: http://www.cidh.org

47 See complete report at: http://www.cidh.org

48 IACHR, Report on the Merits No. 67/06, Case 12,476, Oscar Elías Biscet et al., October 21, 2006.

49 IACHR, Report on the Merits No. 67/06, Case 12,476, Oscar Elías Biscet et al., October 21, 2006.

50 IACHR, Report on the Merits No. 67/06, Case 12,476, Oscar Elías Biscet et al., October 21, 2006.

51 Amnesty International, Cuba: Represión sistemática: acoso y detenciones breves por motivos políticos, March 22, 2012. Available at: http://www.amnesty.org/es/library/info/AMR25/007/2012/es

52 Comisión Cubana de Derechos Humanos y Reconciliación Nacional. Report “Actos de represión política en el mes de junio de 2012.”

53 IACHR, IACHR condemns death of Wilmar Villar in Cuba. January 23, 2012.

54 Directorio, Agresión física virulenta contra defensores de derechos humanos en Matanzas, May 1, 2012. Available at: http://netforcuba.org/2012/05/01/agresion-fisica-virulenta-contra-defensores-de-derechos-humanos-en-matanzas/

55 Directorio, Cuba: Defensor de los derechos humanos se declara en huelga de hambre tras estar detenido arbitrariamente durante 21 días, April 23, 2012. Available at: http://netforcuba.org/2012/04/24/cuba-defensor-de-los-derechos-humanos-se-declara-en-huelga-de-hambre-tras-estar-detenido-arbitrariamente-durante-21-dias/; Amnesty International, Cuba: se cree que un ex preso de conciencia ha sido detenido, February 23, 2012. Available at: http://www.amnesty.org/es/library/info/AMR25/005/2012/es

56 Directorio Democrático Cubano. Brutal golpiza a opositores en Santa Clara durante arresto arbitrario propicia llamado internacional. October 19, 2012.

57 IACHR, IACHR condemns arbitrary arrests of human rights defenders in Cuba. November 9, 2012.

58 Established at Article 115 of the Criminal Code, with a penalty of deprivation of liberty of 1 to 4 years.

59 Diario de Cuba, Arrestados varios activistas que indagaban sobre el paradero de la abogada Yaremis Flores, 8 November 2012. Available at: http://www.diariodecuba.com/derechos-humanos/13890-arrestados-varios-activistas-que-indagaban-sobre-el-paradero-de-la-abogada-ya
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