I. introduction

C. Right to Due Process of Law and Judicial Independence

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C. Right to Due Process of Law and Judicial Independence

  1. The IACHR has consistently mentioned in its reports on Cuba the lack of independence and impartiality of courts and the absence of the right to a fair trial and to due process in prosecution of persons sentenced to death, as well as persons considered to be political dissidents, a particularly serious situation due to the use of summary proceedings in these instances.

  1. Article 121 of the Cuban Constitution provides that “the courts are a system of state bodies, structured so as to be functionally independent of any other organ and hierarchically subordinate to the National Assembly of the People’s Power and to the Council of State.” In the Commission’s view, the courts’ subordination to the Council of State, which is headed by the Chief of State, means that the judiciary is directly answerable to the executive branch. This subordination to the executive branch offers no possibility of an independent judicial branch capable of providing guarantees to ensure the exercise and enjoyment of human rights.338

  1. In its Chapter IV Reports on Cuba from prior years, including 2013, the IACHR reiterated that the death penalty remaining on the books as punishment in a significant number of broadly-worded or vague criminal offenses, for example “Status of threat”339 and criminal proceedings continuing to take place without sufficient due process guarantees, -summary proceedings, lack of trusted defense counsel and jurors of dubious independence and impartiality standing in judgment- is tantamount to a violation of international human rights protection instruments. It may lead to the application of disproportionate punishments and enormous discretion, which could do away with any chance of an effective defense of the individual appearing before the authorities.340 Allegedly there has been no change in this situation in 2014 vis-à-vis that of prior years.

D. Right to residence and movement

1. Restrictions on the right to residence and movement within Cuba

  1. As regards the right of residence, in its Annual Report 2012, the Commission emphasized the restrictions that impede the full exercise of this right of every person to reside freely within the territory of Cuba, particularly in the city of Havana.341 As of Decree 217 of 1997 on internal migration regulations to Havana, restrictions were established to reside freely in this city for people who come from other parts of the country, might try domiciled, reside or live permanently in a house located in Havana, or those who come from other municipalities and try to domiciliate, reside or live permanently in a house located in the municipalities of Old Havana, Central Havana, Cerro and Diez de Octubre were required to request permission to administrative authorities to reside in the capital.342 The decree in question imposed fines and the obligation to return to the place of origin for those who contravene its provisions.

  1. Therefore, people interested in residing in the City of Havana had to apply for permission to permanently reside there and if they did in violation of domestic law risked fines and deportation to their place of origin. Although it is not a crime to be in Havana, Decree 217 has resulted in the police arresting and deporting to their places of origin to those persons who do not comply with the provisions of the Decree. When a person who has already been deported is deported again they may be subjected to pre-criminal security measures.343 According to Human Rights Watch and human rights organizations, Decree 217 is often used to prevent political dissidents from traveling to Havana and taking part in rallies and demonstrations, as well as a mechanism to persecute dissidents from other parts of Cuba who live in Havana.344

  1. Article 5 of Decree No. 217 of 1997 was amended by Decree No. 293 of 2011, by which an exception is made for the requirement to go through the authorization procedure for certain persons from other provinces who request to make a permanent move to the city of Havana345, which includes: (a) the spouse, children, parents, grandparents, grandchildren, and siblings of the person authorized; (b) the minor children of the spouse of the person authorized; (c) the persons found legally incompetent; (d) the nuclear family of the person to whom real property is assigned as a matter of the interest of the state or society. The Commission values the reform; nonetheless, it observes that restrictions that have a detrimental impact on the right to residence and movement continue in place.

  1. In this regard, the Commission would reiterate the recommendation it made in its 2012 Annual Report to the effect that the Cuban State should repeal Decree 217 of 1997, as well as its supplemental provisions, and adopt the measures necessary to guarantee to all persons the rights to freely determine their place of residence and freedom of movement in Cuban territory.

2. Restrictions on the right of Cuban nationals to leave and enter Cuba

  1. Since 1983, the Commission has addressed the lack of constitutional protection of the right to freedom of movement in Cuba, which is an obstacle for its enjoyment. Under the Migration Act, Law No. 1312 of 1976, to leave or enter the country, the Cubans and required a current passport and an exit permit, granted by the Minister of Interior346. On October 16 2012, the Decree-Law No. 302 was published in the Official Gazette of the Republic of Cuba. This Decree-Law was promulgated by the State Council and amended the 1976 Migration Act. This reform entered into force on January 14, 2013. The main changes introduced to the Migration Act are the partial suppression of the requirement for permission to leave the territory, the extension of the period required for a Cuban national who has traveled abroad to considered as an emigrant, the which went from 11 to 24 months, the elimination the need for a letter of invitation from the host country as well as the possibility that girls and boys can travel temporarily, once have the authorization of their parents or legal guardians. Before this reform, girls and children Cubans could only leave the country permanently.

  1. Although the Decree-Law No. 302 of 2012 reflects progress with regards the Migration Act, the Commission has noted that Decree-Law establishes a number of assumptions by which certain Cuban nationals who reside in Cuba cannot obtain a passport or may not leave the country when for reasons of "national defense and security so require" , for "lack of authorization established under rules designed to preserve the skilled workforce for the economic , social and country's scientific-technical and for the safety and protection of official information", "[w]hen for other reasons of public interest, as determined by the authorities" , among other reasons. In its 2012 and 2013 Annual Reports, the Commission noted that the generality of terms confer a broad discretion to the Cuban authorities to allow or not the exit of Cuban nationals, in particular those who express anti-government views.

  1. Government data indicates that nearly 183,000 people traveled abroad between January and September 2013.347 However, according to the Cuban Commission for Human Rights and National Reconciliation, as of June 2013, the Government continued to authorize foreign travel for political dissidents, "with the obvious intention of sending out false signs of change, given that the widespread, institutionalized violation of the right of all Cubans, without exception, to come and go freely from the island persists, as does the right of all Cubans to move freely throughout the country and establish themselves in any of its provinces without fear of being detained and deported under arrest, as has happened to several tens of thousands of citizens at least in the past 15 years.348

  1. For its part, the Commission noted that Cubans traveling and remaining abroad on private business for more than 11 months forfeited authorization to return to the country349 and, therefore, their status as residents of Cuba. The 11-month time limit became a 24-month limit with the entry into force of Decree-Law No. 302 of 2012350. Nevertheless, there is still a time limit, with penalties for exceeding it. They include restrictions on access to free services such as health and education, to the right to social security and the right to vote, and to one’s property. These provisions also have a direct impact on the right to the protection of family life for those who are unable to reunite with relatives remaining in Cuba. In addition to the above, this situation poses further obstacles for Cubans with illegal immigration status, since they cannot return to their country of origin and also do not have the immigration status to reside legally in the country where they are.

  1. For its part, the Cuban Observatory of Human Rights expressed in November 2014 its “alarm for the increase in the number of Cuban” looking for ways to escape the island.”351

Situation of migrants, refugees, and victims of human trafficking

  1. With respect to people who have been forced to flee Cuba for different reasons, there were 6,428 Cuban refugees, 1,000 people in refugee-like situations, and 1,127 asylum seekers with applications pending at the end of 2013.352 In addition, in mid-2013, there were 1,476,717 international migrants of Cuban origin and 16,177 international migrants living in Cuba.353

  1. Another subject of concern for the Inter-American Commission in 2014 has been the increasing number of maritime incidents resulting in the death of Cuban migrants and refugees attempting to reach other countries in the Caribbean or the United States. These deaths can be attributed to multiple factors, including weather conditions, rough waters and/or dangerous maritime routes chosen to avoid coast guard patrols, unseaworthy or overloaded vessels, and human traffickers who forced their passengers to disembark far from the coast and/or without necessary equipment such as life jackets. According to the UNHCR, more than 509 people of Cuban origin died in maritime incidents between January and July 23, 2013, and 92 Cubans are reported to have died between January and early February 2014.354 In both years, the number of Cubans who died in such incidents was second only to the number of Haitians.

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