A. Respect and guarantee by the State for the rights to life, liberty, and security of the person
1. The death penalty
The Commission observes with concern that Cuban law makes the death penalty the punishment for a significant number of crimes, especially crimes against the security of the State. The language of the law is broad and vague, and the death penalty can be applied even in the most summary proceeding267 that does not afford the minimum guarantees necessary for the accused to be able to exercise his right to an adequate legal defense.268
As was observed in Chapter IV of the Annual report of 2008, the IACHR welcomes the fact that on April 28, 2008 the Council of State decided to commute the death penalty of those sentenced to that grave and irreparable punishment, and sentenced them to life or 30 years in prison instead. However, three people sentenced to death for supposed terrorist crimes would appear not to have had their sentences commuted.
The Commission is mindful of the State’s comment in its report submitted to the Universal Periodic Review to the effect that:
97. Since the previous report under the universal periodic review, the courts have not imposed the death penalty. In April 2008, the Council of State decided to commute the death sentences of all prisoners who had received that sentence to 30 years to life imprisonment. That decision was a sovereign act, taken in accordance with Cuba’s humanitarian and ethical conduct since 1959. Today, no one is on death row in Cuba.
98. Cuba is philosophically opposed to the death penalty. It is in favour of eliminating it when suitable conditions exist. Cuba has been forced, in the legitimate defense of its national security, to adopt and enforce severe laws against terrorist activities and crimes designed to destroy the Cuban State or the lives of its citizens, while always adhering to the strictest legality and respecting the most ample guarantees. Cuba understands and respects the arguments of the international movement that advocates the abolition of or a moratorium on the death penalty.
99. Although it is included in criminal legislation, this penalty is very rarely imposed. It may only be imposed by the duly empowered court, in extremely serious cases, concerning the small number of crimes for which it is the prescribed penalty, and is tempered by a wide range of obligatory requirements and guarantees, in line with the United Nations provisions. Life imprisonment is prescribed for some crimes as an alternative to the death penalty.269
In 2013, while speaking in Santiago de Chile with members of the Community of Latin American and Caribbean States (CELAC), President Raul Castro justified the use of the death penalty on the island. He declared that “Our laws allow the death penalty. This action has been suspended, but it’s on the books, because one time we suspended it and all this did was to stimulate acts of aggression and sabotage.”270
Having said this, the Commission observes that under Cuban law, a significant number of crimes carry the death penalty, especially crimes against the security of the State. The language of the law is broad and vague.
Capital punishment is the penalty for crimes against the security of the State; against peace and international law; against public health; against life and bodily integrity; against the normal conduct of sexual relations; against the normal development of childhood and adolescence; and against property rights. The crimes against the security of the State that carry the death penalty are the following: acts committed against the independence and territorial integrity of the State; those aimed at promoting war or armed action against the State; the provision of armed services against the homeland; providing aid and comfort to the enemy; espionage; insurrection;271 sedition; usurpation of political or military control; sabotage; terrorism; hostile acts against a foreign State; genocide; piracy; enrolling in the service of a foreign military force; apartheid272 and other acts against the security of the State. Other capital offenses include: the unlawful production, sale, use, trafficking, distribution and possession of drugs, narcotics, psychotropic substances and others having similar effects;273 murder;274 rape;275violent pederasty;276 corruption of minors;277 robbery committed with violence or intimidation.278 The death penalty is also the punishment for a significant number of offenses criminalized in broad or vague language that include expressions like “dangerous state.”279
Furthermore, as previously noted, in Cuba the death penalty can be ordered even in especially expedited summary proceedings. The Commission has written that “[a]lthough Article XVIII of the American Declaration refers to the simple and brief procedure whereby the courts will protect persons from acts of authority that violate any fundamental rights, the requirement of simplicity and brevity cannot be applied to a trial that does not allow the accused to defend themselves with all the guarantees of due process of law, and even more so in cases where the penalty that could be applied is irreversible by nature, that is, death.”280
According to the information available to the Commission, the last time the death penalty was used in Cuba was in 2003, when Messrs. Lorenzo Enrique Copello Castillo, Bárbaro Leodán Sevilla García and Jorge Luis Martínez Isaac281 were executed.
The Commission believes that if capital punishment is an option, then the judicial branch must be an independent one, where judges exercise a high degree of scrutiny and respect the guarantees of due process. Here, the Inter-American Court has written that:
Capital punishment is not per se incompatible with or prohibited by the American Convention. However, the Convention has set a number of strict limitations to the imposition of capital punishment.282 First, the imposition of the death penalty must be limited to the most serious common crimes not related to political offenses.283 Second, the sentence must be individualized in conformity with the characteristics of the crime, as well as the participation and degree of culpability of the accused.284 Finally, the imposition of this sanction is subject to certain procedural guarantees, and compliance with them must be strictly observed and reviewed.285
The IACHR observes a gradual trend in the hemisphere toward abolition of the death penalty286 and, accordingly, appreciates the Cuban State’s observation to the effect that it understands and respects the arguments of the international movement that advocates for the abolition of or a moratorium on the death penalty.287
2. Right to liberty and security of the person
With respect to the right to liberty and security of the person, the American Declaration indicates that every human being has the right to liberty288 and no one may be deprived of it except in those cases and as per the forms established by pre-existing laws.289 According to the American Declaration, every person who has been deprived of liberty has the right to have the legality of his or her detention ascertained without delay by a court, and to be tried without undue delay, or otherwise to be released.290 In addition, every person accused of a crime has the right to be heard impartially and in a public proceeding, to be judged by courts previously established as per pre-existing laws, and to not be subject to cruel, infamous, or unusual punishment.291
In relation to the right to personal liberty, the IACHR has observed with concern292 the continuation on the books and enforcement of criminal statutes in Cuba of the offense called “pre-delictive social dangerousness” [peligrosidad social pre-delictiva], provided for in the Criminal Code. Article 72 of the statute provides that:
Dangerous state is considered to be the special proclivity one finds in a person to commit crimes, demonstrated by the conduct observed in manifest contradiction with the norms of socialist morality.
The definition of dangerous state [estado peligroso] is contained in Article 73(1) of the Criminal Code, which establishes that such state “is noted when any of the following indicators of dangerousness is observed in the subject: (a) habitual drunkenness or dipsomania; (b) drug addiction; and (c) antisocial conduct.” Article 73(2) provides:
anyone who habitually breaks the rules of social coexistence through acts of violence, or by other provocative acts, violates the rights of others, or who by his or her general conduct violates the rules of social co-existence or disturbs the order of the community, or lives as a social parasite from the work of others, or exploits or practices socially reproachable vices, is considered to be socially dangerous by virtue of such anti-social conduct.
Article 75(1) of the Criminal Code provides that “anyone who, although not covered by any of the dangerous states described in Article 73, has ties or relations to persons who are potentially dangerous to society, to other persons, and to the social, economic and political order of the social State and may therefore be inclined to commit crimes, shall be warned by the competent police authority.”
If a person engages in one of the forms of conduct defined as dangerous, security measures, both pre- and post-delictive, may be applied to him or her. Article 78 of the Criminal Code provides that the person found to be in a “dangerous state” may be subject to the imposition of therapeutic, re-educational, or surveillance measures by the organs of the National Revolutionary Police. One of the therapeutic measures consists – according to Article 79 – of being confined to care facilities, psychiatric institutions, or detoxification centers.293 The re-education measures are applied to allegedly anti-social individuals and consist of confinement in a special establishment for work or study, and handing the person over to a work collective for monitoring and orienting their conduct. These measures are imposed for at least one year and no more than four years.
These rules of the Cuban Criminal Code are supplemented by Decree No. 128, issued in 1991, which establishes that the declaration of pre-delictive dangerousness must be decided in a summary proceeding. According to that decree, the National Revolutionary Police puts together a case file that shows the conduct of the “dangerous person” and presents it to the Municipal Prosecutor, who has two days to decide whether to present it to the Municipal Court. If the Municipal Court considers the case file complete, it sets the date for the hearing in which the parties appear. Twenty-four hours after the hearing is held the Municipal Court must hand down its judgment.
The Commission considers that the criminal law should punish offenses or even frustrated attempts to commit an offense, but never attitudes or presumptions of an offense.294 The IACHR is concerned about the use of the criminal law provisions concerning dangerousness, for it is a subjective concept on the part of the person making such a determination, and its vagueness constitutes a factor of juridical insecurity for the population, since it creates the conditions for the authorities to commit arbitrary acts. The Commission also considers it extremely serious that these provisions – which are per se incompatible with the principles established in the American Declaration – are applied using a summary procedure to persons who have not committed any offense but who according to the discretion of the Cuban authorities are considered dangerous [peligrosas] to society, and therefore deserving of severe measures of security depriving them of liberty.295 In these cases, the State intervenes without limitations and does not hesitate to violate the right to individual liberty.
The impairments to the personal liberty of political dissidents in Cuba will be evaluated in the next section.