session of the UPR Working Group of the Human Rights Council, February 2009
8 September 2008 Public
amnesty international
Cuba
Submission to the UN Universal Periodic Review
Fourth session of the UPR Working Group of the Human Rights Council
February 2009
Executive summary
In this submission, Amnesty International provides information under
sections B, C and D as stipulated in the General Guidelines for the
Preparation of Information under the Universal Periodic Review:1
*
Under section B, Amnesty International raises concern over
restrictions on fundamental freedoms, limitations on the right to fair
trial and urges ratification of international human rights standards.
*
Section C highlights Amnesty International's concerns about
prisoners of conscience; restrictions on the rights to freedom of
expression, association and movement; arbitrary arrests, detention
without charge or trial, and unfair trials; harassment and intimidation
of dissidents and critics; the death penalty; restrictions on human
rights monitoring; and the impact of the US embargo.
*
In section D, Amnesty International makes a number of
recommendations for action by the government to address the areas of
concern.
Cuba
Amnesty International submission to the UN Universal Periodic Review
Third session of the UPR Working Group, December 2008
B. Normative and institutional framework of the State
Unlawful restriction of fundamental freedoms
The Cuban legal framework places restrictions on human rights guaranteed
in international law. Fundamental freedoms such as right to assembly,
association or expression are recognised in the Cuban Constitution;
however, it places excessive limitations on the exercise of these
rights: "None of the freedoms which are recognized for citizens can be
exercised contrary to what is established by the Constitution and the
laws, or contrary to the existence and objectives of the socialist
state, or contrary to the decision of the Cuban people to build
socialism and communism. Violations of this principle can be punished by
law."2 Therefore, the exercise of fundamental freedoms in ways that are
perceived to be "contrary to" the system is not constitutionally protected.
Amnesty International is also concerned that the description of a number
of proscribed acts within the Cuban legal system is so general and vague
as to risk being interpreted in a manner which infringes upon
fundamental freedoms. This is the case, for example, with provisions in
Cuba's Criminal Code (Law 62). Article 91 provides for sentences of ten
to 20 years or death3 for anyone "who in the interest of a foreign
state, commits an act with the objective of damaging the independence or
territorial integrity of the Cuban state".4 The behaviour which this
article is meant to prohibit is ill-defined and open to interpretation.
Further, according to article 72 "any person shall be deemed dangerous
if he or she has shown a proclivity to commit crimes demonstrated by
conduct that is in manifest contradiction with the norms of socialist
morality", and according to Article 75.1 any police officer can issue a
warning (acta de advertencia) for such "dangerousness"5. A warning may
also be issued for associating with a "dangerous person".6 A person who
has received one or more warnings can be convicted of "dangerousness"
and sentenced by a Municipal Tribunal to up to four years in prison.
Further limitations were placed on fundamental freedoms when in 1999
Cuba's National Assembly passed the Law for the Protection of the
National Independence and Economy of Cuba, also known as Law 88. This
legislation, intended as a counter measure to legislation adopted in the
United States, the Cuban Liberty and Democratic Solidarity Act, also
known as the "Helms-Burton Act" after the lawmakers who sponsored it.
This act condemned recent events in Cuba,7 tightened the US embargo, and
discouraged investment in Cuba by providing for penalties against
foreign companies investing there. It also provided for claims of
confiscation of property and for US assistance to 'democracy-building
efforts' in Cuba.
In response to the US Act, Law 88 provides for seven to 15 years'
imprisonment for passing information to the United States that could be
used to bolster anti-Cuban measures, such as the US economic blockade.
This would rise to 20 years if the information is acquired
surreptitiously. The legislation also bans the ownership, distribution
or reproduction of 'subversive materials' from the US government, and
proposes terms of imprisonment of up to five years for collaborating
with radio, TV stations or publications deemed to be assisting US
policy. Amnesty International considers that the law imposes
unacceptable limits on the rights to freedom of expression, association
and assembly.
Lack of freedom of expression
Freedom of expression is very restricted in Cuba because of the complete
control by the government, provided in the Constitution, on all media
outlets. Private ownership of press, radio, television and other means
of communication is prohibited by law, thus restricting the exercise of
the right to freedom of expression by independent media.
Lack of freedom of association
All human rights, civil and professional associations and unions in Cuba
outside the state apparatus and mass organizations controlled by the
government are barred from gaining legal status. This often puts
individuals belonging to such associations at risk of harassment,
intimidation or criminal charges for the legitimate exercise of their
rights to freedom of expression, association and assembly. According to
Article 208 of Cuba's Criminal Code, members of unofficial organizations
can face sentences of one to three months of imprisonment, and three to
nine months for directors of these organizations.
Limitations on the right to fair trial
The right to a fair trial is limited in Cuba, with courts and
prosecutors firmly under government control. The National Assembly
elects the President, the Vice-President and the other judges of the
Peoples' Supreme Court, as well as the Attorney General and the Deputy
Attorney General. In addition, all courts are subordinate to the
National Assembly and the Council of State, raising concerns with regard
to the right to trial by an independent and impartial tribunal as
stipulated in international standards for fair trial.8The fact that
lawyers are employed by the government, and as such may be reluctant to
challenge prosecutors or evidence presented by the state intelligence
services, also impacts on the likelihood of a fair and proper defence.
Ratification of international human rights standards
Amnesty International welcomes Cuba's signing of the International
Covenant on Economic, Social and Cultural Rights and the International
Covenant on Civil and Political Rights at the end of February 2008, and
hopes that the government will be able to ratify both treaties as soon
as possible and without reservations.
C. Promotion and protection of human rights on the ground
Prisoners of conscience
At least 58 prisoners of conscience9– including teachers, journalists
and human rights defenders detained for their peaceful activities – are
currently held in prisons across Cuba, following trials that failed to
uphold international standards for fair trial. Seventeen of them are
serving their sentences outside prison because of health concerns.
Fifty-five of the prisoners of conscience were arrested during March
2003, when after a period of apparent movement towards a more open and
tolerant approach, the authorities carried out a crackdown on the
dissident movement on the island. With the exception of half a dozen
well-known figures critical of the regime, most of the mid-level
leadership of the dissident movement were detained. Many of them had
been involved in dissident activities for a decade or more. They were
subjected to summary trials and sentenced to long prison terms of up to
28 years.10
Among then is Orlando Zapata Tamayo. He was arrested on 20 March 2003
while taking part in a hunger strike at the Fundación Jesús Yánez
Pelletier in Havana to demand the release of Oscar Elías Biscet and
other political prisoners. Orlando was sentenced to three years'
imprisonment on charges of showing "contempt to the figure of Fidel
Castro", "public disorder" and "resistance". In November 2005, he was
sentenced to an additional 15 years for "contempt" and "resistance"
while in prison. In May 2006, he was again tried on the same charges and
sentenced to an additional seven-year term. He is now serving a 25 years
and six months sentence.
Amnesty International welcomes the release in February 2008 of four
prisoners of conscience, although this appears to be on health grounds
and the persons concerned were required to go into exile.
Freedom of expression, association and movement
The severe restrictions on the rights to freedom of expression,
association and movement affect thousands of people across Cuba. Those
who attempt to express views, organize meetings or form organizations
that contradict government policy and/or the aims of the state are
likely to be subjected to punitive measures, such as imprisonment, loss
of employment, harassment or intimidation.
On 29 November 2006, independent journalist Raymundo Perdigón Brito was
detained by police and reportedly asked to close down his recently
opened independent news agency, Yayabo Press. When he declined to do so,
he was sentenced to four years in prison for "social dangerousness" at a
summary trial held only six days after his arrest.
Foreign correspondents based in Cuba also suffer limitations to their
work. During 2007, the International Press Centre (CPI) of the Foreign
Ministry denied the renewal of working visas to a number of foreign
journalists. The CPI informed the correspondents that their visas would
not be renewed because "the way they approach the Cuban situation is not
acceptable to the Cuban government".11
Between 3-6 July this year, the authorities prevented scores of
dissidents from participating in several events taking place in Havana,
including the civil society meeting "Agenda for the Transition" (Agenda
para la Transicion) and an event organized by the United States
Interests Section to celebrate US Independence Day. Some were prevented
from travelling to the capital, others in Havana were prevented from
leaving their homes and around 30 were detained by the police, and then
released a few hours later or the following morning. The following
weekend, 12-13 July, at least 15 dissidents were detained for up to 24
hours. Among those detained was former prisoner of conscience Francisco
Chaviano. Sunday 13 July was the anniversary of the "13 de Marzo"
tugboat disaster of 1994, in which some 35 people died while attempting
to flee Cuba when their boat was reportedly rammed by the Cuban authorities.
Arbitrary arrests, detention without charge or trial, and unfair trials
Amnesty International has received many reports of human rights
defenders, political dissidents and independent journalists being
arrested for carrying out dissident activities or reporting on the human
rights situation in Cuba. In some cases they are detained for a few
hours; in others they are held for months without charge and sometimes
without trial on suspicion of counter-revolutionary activities or on
similarly unclear charges.
In some cases the dissidents are tried and sentenced within a few days
in summary trials. José Oscar Sánchez Mádan, one of the spokespersons of
the dissident Independent Alternative Option Movement (Movimiento
Independiente Opción Alternativa), was summarily tried in April 2007 and
sentenced to four years' imprisonment for "social dangerousness" by the
Municipal Court of Union de Reyes. His trial took place four hours after
his arrest and no family member was informed of the trial or allowed to
participate.
Harassment and intimidation of dissidents and critics
Amnesty International continues to be concerned at reports of harassment
and intimidation of critics and political dissidents and their families
by quasi-official groups in so-called acts of repudiation ("actos de
repudio"). The organization believes that such acts of "repudiation" may
amount to psychological torture given the strain they can cause on the
victims and their relatives. Physical aggression has also been reported
during some acts of "repudiation". Lawyer and human rights defender,
Juan Carlos González Leiva, who is also the President of the Cuban
Foundation for Human Rights, was the target of several acts of
repudiation at his home in the city of Ciego de Avila in November 2006,
including repeated threats against him and his family by demonstrators.
The death penalty
Cuba retains the death penalty for serious crimes, such as acts of
terrorism. However, in recent years it has only rarely been applied, and
Cuba abstained in the December 2007 vote at the UN General Assembly on a
resolution calling for a moratorium on the use of the death penalty. In
April 2008, the Cuban President announced the decision by the State
Council to commute the death sentences of a group of prisoners to 30
years imprisonment. However, he also clarified that this measure did not
imply the abolition of the death penalty.
The last known execution took place in April 2003 of three young men
sentenced to death for hijacking a boat in order to flee the island.
There was international concern that the death penalty would be used
when two army soldiers were arrested following a failed attempt to
hijack a plane on 3 May 2007, which resulted in the death of an army
colonel. However, in September 2007 the two men were sentenced to life
imprisonment. Amnesty International considers the death penalty to be
the ultimate cruel, inhuman or degrading treatment or punishment and
opposes its use in all circumstances.
Restrictions on human rights monitoring
Amnesty International believes that independent monitoring is key for
protection of and respect for human rights. The organization welcomes
the visit in November 2007 by the Special Rapporteur on the right to
food at the invitation of the Cuban government. On that occasion, the
Minister of Foreign Affairs stated that the government was committed to
co-operate with international human rights mechanisms "systematically
and continuously, as long as Cuba is treated in a non-discriminatory way".
Amnesty International remains concerned, however, that human rights
monitoring in Cuba continues to be very restricted. Local
non-governmental organizations have great difficulty in reporting on
human rights violations due to restrictions on their rights to freedom
of expression, association and movement. At the same time, international
independent human rights organizations are not allowed to visit the
island, which contributes to the limitation of human rights monitoring.
Impact of the US embargo
Amnesty International has called for the US embargo against Cuba to be
lifted, as it is highly detrimental to Cubans' enjoyment of a range of
economic, social and cultural rights, such as the right to food, health
and sanitation – particularly affecting the weakest and most vulnerable
members of the population. Unfortunately, due to the lack of access to
the country, Amnesty International has been unable to document at first
hand the impact of the embargo on the enjoyment of these rights.
According to UNICEF, the availability of medicines and basic medical
materials has decreased in Cuba as a consequence of the US embargo
against the island.12 Amnesty International also believes that the
embargo has undermined freedom of movement between Cuba and the US and
restricted family reunifications. However, the organization is also
concerned that the Cuban government uses the embargo, and the political
antagonism with the US government, as a pretext for violating the human
rights of the Cuban people.
D. Recommendations for action by the State under review
Amnesty International calls on the government to:
National legislation and institutions
*
Eliminate from the Criminal Code provisions regarding
"dangerousness" and all other provisions that might contribute to
arbitrary arrest and detention;
*
Create an independent mechanism of accountability to ensure all
state institutions, including the security services, respect human rights;
*
Reform laws, regulations and administrative practices relating to
freedom of expression, association and assembly in accordance with
international standards.
Unfair trials
*
Provide full judicial guarantees, in accordance with
international human rights standards, to ensure that all detainees have
access to a fair trial, including the right to be heard by an
independent tribunal and immediate access to a lawyer of their choice;
*
Undertake a judicial review of all the sentences and cases where
there is evidence that the fundamental right to a fair trial has been
violated, ensure that a thorough and impartial retrial takes place and
victims have access to reparation.
Ratification of international human rights standards
*
Ratify without reservations the International Covenant on Civil
and Political Rights, including its two Optional Protocols, and the
International Covenant on Economic, Social and Cultural Rights.
Prisoners of conscience
*
Immediately release all prisoners of conscience and all others
detained or imprisoned solely for the peaceful exercise of their rights
to freedom of expression, association and assembly.
Harassment and intimidation of dissidents and human rights defenders
*
Cease the harassment, intimidation and persecution of human
rights defenders, independent journalist and political dissidents who
exercise their rights to freedom of expression, assembly and
association, and to grant legal status to their organizations;
*
Uphold rights pertaining to the UN Declaration on the Right and
Responsibility of Individuals, Groups and Organs of Society to Promote
and Protect Universally Recognised Human Rights and Fundamental Freedoms
to ensure that human rights defenders are able to carry out their
legitimate work freely and without fear of reprisals.
The death penalty
*
Abolish the death penalty.
International human rights monitoring
*
Permit international government and non-government human rights
bodies to visit the country to independently investigate violations of
international human rights, to facilitate its operation and to consider
its recommendations.
Appendix: Amnesty International documents for further reference13
*
Cuba: "Essential measures"? Human rights crackdown in the name of
security, AI Index: AMR 25/017/2003
*
Cuba: One year too many: prisoners of conscience from the March
2003 crackdown, AI Index: AMR 25/005/2004
*
Cuba: Prisoners of conscience: 71 longing for freedom, AI Index:
AMR 25/002/2005
*
Cuba: Fundamental freedoms still under attack, AI Index: AMR
25/001/2006
*
Cuba: Amnesty International's human rights concerns, AI Index:
AMR 25/003/2007
Urgent Actions
*
Cuba: Fear for safety / Fear of torture / Intimidation /
Harassment. AI Index: AMR 25/002/2006
*
Cuba: Possible prisoner of conscience/ harassment/ intimidation:
Ahmed Rodríguez Albacia (m) AI Index: AMR 25/003/2006
*
Cuba: Fear of unfair trial/possible Prisoners of Conscience. AI
Index: AMR 25/004/2006
*
Cuba: Further information on Possible prisoner of conscience/
harassment/ intimidation: Ahmed Rodríguez Albacia (m). AI Index: AMR
25/005/2006
*
Cuba: Further information on Fear for safety / Fear of torture /
Intimidation / Harassment. AI Index: AMR 25/001/2007
*
Cuba: Fear for safety/Fear of arbitrary detention: Martha Beatriz
Roque Cabello (f). AI Index: AMR 25/004/2007
*
Cuba: Fear of unfair trial: Gorki Águila (m). AI Index: AMR
25/001/2008
*
Cuba: Further information on fear of unfair trial: Gorki Águila.
AI Index: AMR 25/003/2008
1 Contained in Human Rights Council Decision 6/102, Follow-up to Human
Rights Council resolution 5/1, section I adopted 27 September 2007.
2 Article 62, Constitution of 1976.
3 Law 87 of 1999, which modifies the Penal Code, changes the provisions
regarding sentencing to provide for life imprisonment.
4 Law 62, Cuban Criminal Code, National Assembly of Popular Power, 1987,
Article 91. Unofficial translation.
5 The declaration of a dangerous pre-criminal state can be decided
summarily according to Decree No. 129, issued in 1991
6 Article 75.1, Cuban Criminal Code, Law 62 of 1987.
7 In section 116, the text of the law explicitly condemns a February
1996 incident in which two planes belonging to a Cuban exile group were
shot down by the Cuban airforce. Cuban authorities claim that this was
an act of self defence prompted by violation of its airspace, while
supporters of the exile group maintain that it was an act of aggression
committed over international waters. The text also condemns government
repression against Concilio Cubano (see below).
8 Article 14 of the UN International Covenant on Civil and Political Rights.
9 People who are imprisoned, detained or otherwise physically restricted
because of their political, religious or other conscientiously-held
beliefs or because of their ethnic origin, sex, colour, or language and
who have not used or advocated violence are considered by Amnesty
International to be prisoners of conscience.
10 For more information on the March 2003 events please see the report
entitled "Essential measures? Human rights crackdown in the name of
security". This report was updated on the anniversary of these events in
2004, 2005 and 2006.
11 Inter American Press Association. Cuba country report. Midyear
Meeting 2007, Cartagena de índias, Colombia
12 Report of the UN Secretary-General to the UN General Assembly on Item
27 of the provisional agenda "Necessity of Ending the Economic,
Commercial and Financial Embargo Imposed by the United States of America
against Cuba", 20 September 1995.
13 All of these documents are available on Amnesty International's
website: http://www.amnesty.org/en/region/americas/caribbean/cuba
AI Index: AMR 25/002/2008 Amnesty International
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