1. The Inter-American Commission on Human Rights has continued to observe the human rights situation in the Republic of Cuba closely. The purpose of this report is to provide a review of the events that have taken place in Cuba in the field of Human Rights, which require special consideration. It should also be noted that the major criterion for preparing this report has been the lack of free elections in accordance with internationally accepted standards, thereby violating the right to political participation set forth in Article XX of the American Declaration of the Rights and Duties of Man, which states textually that:
Every person having legal capacity is entitled to participate in the government of his country, directly or through his representatives, and to take part in popular elections, which shall be by secret ballot, and shall be honest, periodic and free.
2. The Commission drew on several sources in preparing this report, such as the testimony of victims who have suffered violations of their rights in Cuba, complaints brought against the Cuban State, and an abundance of information provided by nongovernmental organizations in Cuba and abroad.
3. The Commission has affirmed that the Cuban State is a party to international instruments, which, in the context of the American hemisphere, were initially established to protect human rights: the American Declaration of the Rights and Duties of Man and the Charter of the Organization of American States. This State also signed Resolution VIII of the Fifth Meeting of Consultation of Ministers of Foreign Affairs (Santiago, Chile, 1959), whereby the Inter-American Commission on Human Rights was instituted, "charged with promoting respect for such rights."1
4. The Inter-American Commission on Human Rights has always maintained that Resolution VI of the Eighth Meeting of Consultation excluded the Government of Cuba, and not the State, from participating in the Inter-American System. This position is confirmed by the wording of said Resolution, the statements made during the discussions approving it and other actions taken by the Organization in this connection. However, the validity of such a distinction between Government and State has been challenged, on the grounds that exclusion of the Government also implies exclusion of the Cuban State.2
5. The foregoing is upheld by the Commission in its Seventh Report on Human Rights in Cuba, when it points out that in the opinion of the Commission, Government and State are two juridical and institutionally differentiable concepts, not only in the context of legal theory but also in practice.
6. The Commission, on the other hand, considers that "in the case of Cuba, the exclusion of its Government could hardly determine the loss of its capacity of member state since, within the system of the Charter of the OAS, there is only one case in which a state can lose this capacity: the one provided for in Article 4, i.e., in the event of the entry into the Organization of a new political entity born of the union of several of its member states. Unlike the United Nations Charter, which allows for the possibility of expelling a member state that repeatedly violates its principles (Article 6), the Charter of the OAS does not consider this possibility. Hence, the Commission considers that the character of member state is a right under the provisions of the Charter and as such, no state can be deprived of this capacity; the condition of member state can only be renounced by a Government which considers such a step appropriate, but cannot be lost through the imposition of a penalty not contemplated in the Charter."3
7. It was the Cuban Government--not the State--that was excluded from the inter-American system. Consequently, the Cuban State is juridically responsible to the Inter-American Commission on Human Rights in all matters involving human rights. A further argument which should be mustered by the Inter-American Commission on Human Rights is that the purpose of excluding Cuba from the inter-American system by the Organization of American States was not to leave the Cuban people unprotected. The exclusion of that Government from the regional system by no means implies that it can cease to comply with its international obligations in the area of human rights.
8. As for consideration of the Annual Report of the Inter- American Commission on Human Rights before the General Assembly of the OAS, it should be pointed out that when a special report is included on one of the member states, the representatives of said countries may make any comments they deem to be appropriate. The General Assembly, in its capacity of supreme organ of the Organization, may adopt such decisions as it considers appropriate, but it does not have the power to amend reports approved by the Inter-American Commission on Human Rights. Consequently, it cannot be said that the right to defense is exercised before it by a country.
9. Before starting to examine the general situation of human rights in Cuba, the Inter-American Commission finds it necessary to refer to the latest background information which it has in this respect: the conclusions and recommendations of its last report.4 The purpose is to determine whether the Cuban State has taken any steps or, if not, whether there has occurred any sort of political reform which might improve the situation of human rights in Cuba.
10. In this regard, in the framework of its conclusions in its 1994 Annual Report, the Commission indicated, inter alia, that "the Government's repression of political dissent, the de facto and de jure subordination of the administration of justice to the Government Party, the lack of guarantees against arbitrary arrest, and the deliberately severe and degrading conditions in Cuban prisons, combined with the serious economic situation, constitute a dangerous potential for social conflicts and are a matter of profound concern for the Inter-American Commission on Human Rights."5 Further on, the Commission added: "Consequently, ... [it is] absolutely necessary that the Cuban Government immediately initiate political and economic reforms in order to prevent the situation deteriorating even further. If the present situation continues, the outcome would be extremely serious for the human rights situation in general."6
11. The various sources of information available to the Inter-American Commission on Human Rights concur in noting that, during the period covered by this report, the Cuban State adopted a series of measures in respect to human rights.
12. The measures adopted by the Cuban State are as follows:
a. The United Nations High Commissioner for Human Rights, José Ayala Lasso, visited Cuba, thanks to the permission granted by the Cuban State.
b. Representatives of four non-governmental organizations were allowed to visit Cuba to observe the situation of a group of political prisoners. This visit made possible the release of 22 prisoners who had been convicted of political crimes, before completing their sentences, without imposition of any condition that they leave the country.
c. On May 17, 1995, the Cuban State ratified the United Nations Convention Against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment.
d. In September 1995, the Cuban State approved a law on foreign investment. Despite the observations made by the Inter- American Commission on Human Rights (paragraphs 84 ff. of the present report), the Commission believes the start of measures that would allow economic openness in Cuba to be a favorable development.
e. In November 1995 the State permitted a conference to be held on "The Nation and Emigration," thereby providing a forum for dialogue between Cubans living in Cuba and living abroad, though it was still limited to very specific issues.
f. In 1996, an inter-American academic institution--the Inter-American Institute of Human Rights, whose headquarters are in San Jose, Costa Rica--entered into an initial activity with Cuba's National Jurists' Union (the equivalent of the bar associations in other countries), thereby culminating a consultation process which it had introduced in May of 1994. The first IACHR promotion mission went to Cuba, also in May of 1994; but it should be noted that, ever since the First Interdisciplinary Course on Human Rights in 1983, the Commission has invited Cuban citizens and personalities who live outside Cuba to take part in this inter-American academic exercise. The "Seminar on Human Rights," held in Havana from May 30 through June 1 of 1994 in cooperation with Cuba's National Jurists Union (UNJC), constituted the first IACHR human rights activity in the difficult political context which is the framework for any work in this field in Cuba. It was also unique in the inter-American sphere--at least until now. This was the Commission's first national seminar on human rights during a period (June 1994 to July 1996) fraught with tense relations between Cuba and various countries of the international community. This project attracted more than 70 members of Cuba's juridical community (judges, lawyers, university professors, members of the various courts and Ministry of Justice personnel).
The forum served as the starting point for a limited process of discussion and debate on the subject of human rights--and, in particular, the judicial guarantees in the Constitution, which also addressed Cuba's approach to human rights. Various members of the international community took part in this process. To cite an example: the subject of human rights was seen to have been a focal point in the global dialogue with the European Union about the drafting of a framework agreement on Cooperation, and some of the European Union's members observed that the existing channels for dialogue through political relations should not be closed, but should lead to progressively greater openness.
g. In that context, Canada has signed an agreement on human rights with Cuba. It calls for the provision of training seminars for judges and lawyers; meetings of legislators from the parliaments of both countries to discuss human rights topics; and establishment of a bilateral mixed commission responsible for conducting the dialogue between the two countries on this subject. Moreover, a comparative study of the legal system currently in effect (penal and civil law, the family code, investment rules, private initiative and the right of business and commercial establishments) is now under way, thus creating openings for legal technical assistance--even in areas that are the inherent purview of human rights.
h. In January 1997, in the context of a clear easing of tensions between the Catholic Church and the Cuban State, the newspaper Granma, organ of the Central Committee of the Communist Party (PCC), announced in its front-page headline that Pope John Paul II will visit Cuba in early 1998. This is particularly important considering that since the 1960s the Catholic Church has not had access to the communication medias in Cuba. Furthermore, the Noticiero Nacional de Televisión (national television newscast) reported as its leading news item that President Fidel Castro received Cardinal Camilo Ruini and his delegation from the Italian Bishops Conference at the Palacio de la Revolución; the delegation was making an official visit to Cuba. Also participating in that meeting were Vice-President Carlos Lage and the Chief of the Communist Party's Office of Religious Affairs, Caridad Diego, as well as Cuban Cardinal Jaime Ortega and the Apostolic Nuncio, Beniamino Stella.
13. However, the Inter-American Commission on Human Rights considers that these measures do not comprise the bedrock of a substantive reform in the present political system, which fosters the observance and protection of human rights. In other words, a reform that will permit the ideological and partisan pluralism implicit in the wellspring from which a democratic system of government develops. The Inter-American Commission on Human Rights, during the period covered by this report, has also continued to receive numerous complaints about violations of the civil and political rights of Cuban citizens who for one reason or another take issue with government policy. In effect, discrimination on political grounds and the violations of the freedom of expression and association generally are accompanied by punishment including deprivation of liberty, temporary detentions, harassment, threats, loss of employment, home searches, adoption of disciplinary measures, etc. In addition is the control exercised by the Cuban State over citizens' private activities, including the need to obtain permission from the Ministry of Interior to freely travel abroad. Furthermore, there is still de facto and de jure subordination of the administration of justice to the political authorities, which affects one of the fundamental conditions for the practical observance of this right. The result is a negative climate of uncertainty and fear among the citizenry, which is reinforced by the weak state of procedural guarantees, especially in those trials that may directly or indirectly affect the system of power that exists in Cuba today.
14. The conditions described above, together with the grave economic crisis of recent years, has generated a situation in which approximately 10% of the population7 lives outside the country, and a large number of people wish to emigrate, by any means, to seek better living conditions.
A. DISCRIMINATION ON POLITICAL GROUNDS RELATIVE TO THE LACK OF FREEDOM OF EXPRESSION, ASSOCIATION AND ASSEMBLY
15. The Inter-American Commission on Human Rights has referred in previous reports to the systematic practice of the Cuban State of discriminating against citizens under its jurisdiction for political reasons and the lack of freedom of expression, association, and assembly. During the period covered by this report, the practice of the Cuban authorities has not changed, nor have the constitutional and criminal provisions on which they rely in so acting. In other words, the harassment, accusations, adoption of disciplinary measures and prison sentences for persons who peacefully display their disagreement with the political regime in place have persisted. Such harassment is directed especially at groups geared to supporting human rights, including trade union rights, or political activity. These groups are characterized by their decision to use only peaceful means in pressing their grievances, despite which the authorities consider their activities illegal, and they are persecuted in various ways. The criminal offenses most commonly used to characterize these persons' activities include "enemy propaganda," "contempt" (desacato), "unlawful association," "clandestine possession of printed matter," "posing a danger," "rebellion," and "acts against state security."
16. Despite the conditions described above, the groups that defend human rights as well as the political groups continued to grow in number in the course of the last two years. According to the information provided, the importance of these groups is often downplayed by the Cuban State, which labels them "counter- revolutionaries" or "grupúsculos" (derisive-sounding to say "small groups").
17. The Inter-American Commission on Human Rights considers, to the contrary, that these groups are an alternative for Cuban citizens who wish to have a space to freely and peacefully discuss the main problems besetting the country. It is also a form of pluralism within a system characterized by the absolute control exercised by the state over its citizens; such control is implemented through the mass organizations; no intermediate-type organizations are allowed.
18. The Inter-American Commission should also note that the right of assembly and the right of association, in addition to being set forth in the American Declaration of the Rights and Duties of Man, and in other international human rights instruments, are closely interconnected. Based on the freedom of association, a citizen is free to associate with whomever he or she chooses, without being subject to any penalty in respect of the use of his or her other civil, political, economic, and social rights, as a result of such association. This includes the right to form associations and the right to join already- existing associations, and encompasses all phases of life in a modern society.
19. The right to assemble, for its part, consists of the right all persons have to assemble in groups, publicly or privately, to discuss or defend their ideas. These rights--of association and assembly--are contained in the constitutions of all the states of the Americas, including Cuba. In effect, Article 54 of the Cuban Constitution states: "The rights of assembly, demonstration, and association are exercised by the workers, both manual and intellectual, peasants, women, students, and all other sectors of the working people, for which the means necessary to such purposes are provided. The mass organizations and social organizations have all the facilities to develop such activities, in which their members enjoy the fullest freedom of speech and opinion, based on the unlimited right of initiative and criticism."
20. Nonetheless, the right of assembly, like all other rights, duties, and fundamental guarantees set forth in Chapter VII of the Constitution of Cuba, is limited and subordinated to the "construction of socialism and communism." Article 62 of the Cuban Constitution notes as follows:
None of the freedoms recognized for citizens may be exercised against the provisions of the Constitution and the laws, nor against the existence and ends of the socialist state, nor against the decision of the Cuban people to build socialism and communism. Infractions of this principle are punishable.
21. As for the freedom of expression, Article 53 of the Constitution provides: "Freedom of speech and press are recognized for citizens consistent with the purposes of socialist society. The material conditions for their exercise are present by the fact that the press, radio, television, movies, and other mass media are state-owned or socially owned, and can in no event be privately owned, which ensures their use exclusively in the service of the working people and in the interest of society. The law regulates the exercise of these freedoms."
22. The Inter-American Commission on Human Rights considers that the Cuban Constitution clearly establishes the legal bases for censorship, since the state is the only one that can determine whether oral or written expression, the right to association and assembly, or the rest of the rights set forth in the Constitution are contrary to the prevailing political system. The Constitution also sets forth the legal bases for the state to direct all activities related to the arts, culture, and the press.
23. The intolerance of the government party for any type of political opposition is the main limitation to participation. This tendency is legitimated by Article 62 of the Constitution. Indeed, the political practice has shown that prejudice against public opposition is generalized. Since 1960, all the information media have been in the hands of the state.8 There are no legal means for openly challenging the policies of the government or Party, or competing as a group, movement, or political party organization for the right to govern, to replace the Communist Party and its leaders by peaceful means, and to develop new and different policies. In summary, it is impossible to make open and organized criticism of the policies of the Government and the Party that might make the highest-level leaders susceptible to assuming responsibility, being held accountable, and being removed from office. In other words, the current Cuban regime persists in employing various methods-- control of information and of scientific and cultural pursuit, jailing of dissidents, massive migrations abroad, etc.--to restrict and even eliminate all forms of political opposition.
24. During the period covered by this report, the Inter- American Commission on Human Rights has received numerous complaints that demonstrate the conditions described in the preceding paragraphs, i.e. discrimination due to political motives and the violations of the rights to expression, association, and assembly. Following are some of the relevant complaints:
a. A mob of 60 to 80 people in civilian clothing and armed with pipes and chains surrounded the house of Victoria Ruíz Labrit, President of the Comité Cubano de Oposición Pacífica Independiente, so as to impede an alleged meeting of political dissidents. The events occurred at approximately 8:30 a.m., on August 10, 1995, in the city of Havana. Everyone who passed by the home of Victoria Ruíz was detained, searched, and asked to show their identification. At approximately 9:00 a.m. the district delegate for the Poder Popular mass organization and a representative of the Federation of Cuban Women, who stated that they had knowledge of a meeting of "counter-revolutionaries," in response to which Victoria Ruíz invited them to come in, stating: "I would like you to come in to see that the counter- revolutionaries who are meeting with me are three minors ages 11, eight, and six years." The state agents refused to enter, but they remained in front of her domicile until noon.
b. The Asociación Cívica Democrática reported that in Cuba criminal charges continue to be fabricated against dissidents and human rights activists, with a total lack of procedural guarantees. In effect, Ismael Morales, 17 years of age, the son of a dissident from the Isla de Pinos, Antonio Morales Torres, was sentenced to six months in prison for an alleged larceny, even though the prosecutor withdrew the charges when the witnesses he had proposed retracted. On appeal, the innocence of Ismael Morales was amply shown. Nonetheless, the President of the Chamber declared that they would convict him anyway, assuming full responsibility, since he neither studied or worked.
c. Marcos Gonzáles Hernández, María Elena Bayo Gonzáles, Ariel Lavandera López, Regla Tapanes Tapanes, Rodolfo Valdés Pérez, Carlos Denis Denis, Pedro Pablo Denis Blanco, Felipe Lázaro Carranza Díaz, Ileana Curra Luzón, Iván Curra de la Torre, and Jorge Heriberto Alfonso Aguilar were sentenced to three-year prison terms by the Provincial Tribunal of Havana in case 36/94 for the crimes of enemy propaganda and acts against state security. According to the judgment, it was proved that the accused "in discord with the Cuban revolutionary process and its guidelines, for the purpose of subverting the established social order and to destabilize the bases of our social and economic system...conceived of the idea of drawing up and distributing in different places proclamations, with counter-revolutionary texts, which they carried out by designing a rustic logo and printing up pamphlets with texts such as Abajo Fidel and Plesbiscito."
d. During the period covered by this report, the Partido Pro-Derechos Humanos de Cuba denounced the harassment by the Cuban authorities of independent attorneys who have taken up the defense of peaceful dissidents and human rights activists. According to the information provided, attorneys Leonel Morejón Almagro of the Marianao law office and René Gómez Manzano of the Casación law office were expelled after working for several years defending cases involving human rights violations. Morejón Almagro was visited at his home on February 9, 1995, by a delegation of the "Single System for Exploration and Vigilance," an agency created by the Cuban regime to intimidate people supposedly "dangerous" to society due to an "apparent deviation in their social conduct," which entails, as a consequence, the opening of a "dangerous status" file with the respective punishment of four years imprisonment.
e. The Fundación Solidaria Por la Democracia reported from Havana the cases of four Cuban citizens imprisoned after being convicted for alleged crimes of rebellion and acts against state security. The persons sentenced, all residents of the city of Minajarle, municipality of Jiguaní, province of Granma, are as follows: Leonardo Cabrera Arias, 31 years of age, sentenced to eight years imprisonment; Lino José Molina Basulto, 32 years of age, sentenced to eight years; Ramiro Angel Rodríguez Leyva, 30 years of age, sentenced to seven years; and Jorge Oscar Rodríguez Leyva, 32 years of age, sentenced to eight years in prison. The four were accused, along with other citizens who were released, "of grouping together and assessing the country's economic, social, and political situation, of hearing foreign radio broadcasts, make written propaganda, and seeking a new hideout for grouping people together." The accused have argued that their only crime was to meet weekly for Biblical studies. The investigating judge stated that they "were false religious." At present all four are at the Las Mangas prison, each on a different floor.
f. Also during the period covered by this report, Francisco Chaviano Gonzáles, President of the Consejo Nacional por los Derechos Civiles en Cuba, was detained by State Security agents in Havana and sentenced to 15 years prison. The detention occurred when state agents broke into his domicile shortly after an unknown person provided him with documents on human rights violations. The agents also took documentation of that Council, especially with respect to persons who had disappeared at sea when they tried to abandon the country. Chaviano Gonzáles was led to the Villa Marista barracks, accused of disclosing secret information on state security. Earlier, Mr. Chaviano had been subjected to frequent acts of intimidation. Three others, Abel del Valle Díaz, Pedro Miguel Labrador, and Juan Carlos Gonzáles Vásquez, were also tried in the same case with Chaviano. The trial was held before a military tribunal, even though all the accused were civilians. The attorney for Abel del Valle Díaz later wrote in the press in Miami, Florida,9 that the case was investigated secretly by the judge, i.e. without the participation of the attorneys, and that only three days prior to the celebration of the trial was he able to review the proceedings and meet with his defendant. In addition, the attorney was not given access to the two documents classified "secret" (that addressed how to combat crimes in the area of restaurants, services, and fuel) that were supposedly found in possession of the accused, and that were at the basis of one of the main accusations. In the course of the judicial process, held behind closed doors, access was denied to several defense witnesses, and friends and relatives were threatened at the entry to the building by members of the rapid action brigades. Some members of human rights organizations were arrested as they were heading to the court; they were later released.
g. In December 1995 the coalition Concilio Cubano asked the Cuban authorities to allow it to hold a national gathering on February 24, 1996. That meeting never took place. One official of the Ministry of Interior told Gustavo Arcos, a leader of the group, that the Government would not allow the meeting. In mid- February 1996 dozens of members of the coalition were detained nationwide, despite the decision of its leaders to cancel the above-noted gathering, so as to avoid any incidents. Days later the detainees were released; nonetheless, four were tried, convicted, and sentenced to prison. Lázaro Gonzáles Valdés, vice- delegate and member of the National Secretariat of the Concilio Cubano, was detained on February 15, 1996, and sentenced to 14 months on charges of resistance and contempt for authority (desacato); Leonel Morejón Almagro, 31 years old, member of the Corriente Agramontista and founder of the Concilio Cubano, was detained on February 15, 1996, and sentenced one month later by the Provincial People's Tribunal to 15 months in prison for resisting an official in the exercise of his duties, and for the crime of desacato; Roberto López Montañez, 43 years old, member of the Movimiento Opositor "Panchito Gómez Toro" and of the Alianza Democrática Popular, was detained on February 23, 1996, and sentenced on July 4, 1996, by the Municipal Tribunal of Boyeros to 15 months in prison for the crime of contempt (desacato) for the image of Commander-in-Chief Fidel Castro and falsification of documents; and Juan Francisco Monzón Oviedo, 44 years old, teacher, and member of the National Coordinating Council of Concilio Cubano, was detained on February 15, 1996, and sentenced to six months in prison for "unlawful association" in a summary trial on March 21, 1996.
25. As has been indicated in this report, since 1960 all the communications media have been state-run. The functions of the mass media in Cuba, and especially the written press, may be better understood when viewed in light of the functions assigned to them by the doctrine of the party in power in Cuba today. The written newspapers are assigned the functions of agitation, propaganda, organization, and self-criticism.
26. These functions presuppose a shared and unified political outlook, while at the same time they are geared to eliminating the sectors that might oppose this basic conception. Thus, the task of agitation is part of the ideological struggle, and therefore does not necessarily coincide with the objectivity and veracity that are at the basis of the information function.
27. In view of the propaganda function given the press by the state, the press is also a channel of education and indoctrination in Marxism-Leninism. Therefore the daily newspaper Granma, Cuba's main paper, is the organ of the Communist Party Central Committee, and devotes much of its content to that objective. Granma was designed based on Pravda, the organ of the Central Committee of the Communist Party of the former Soviet Union, and was created from the merger of two pre- existing daily papers, Hoy and Revolución. The frequent discrepancies between the two newspapers led to the decision to merge them and to adopt its current character.
28. As indicated in this report, the main newspapers in Cuba reflect only the viewpoints of the government. Only to a very limited extent do they report on the debates that take place within the high-level organs of state. As a result, self- criticism is also limited, i.e. it refers to very specific aspects of daily life in Cuba. It is a role the press plays with a view to transmitting the grievances of the grass-roots to the top echelons of power. Nonetheless, in no way do the discrepancies overstep the limits set by the requirements of ideological conformity, i.e. in no way can they oppose, or become spokespersons advocating a radical change in the prevailing regime, or that hold upper-level government officials accountable in relation to substantive political issues.
29. The limits set by the governing party of Cuba on any type of criticism that represents open opposition to the regime encompass reprisals that range from being laid off, to proceedings that result in prison sentences. In this regard, for example, the Inter-American Commission on Human Rights was informed that Alexis Castañeda Pérez de Alejo a journalist for the newspapers Vanguardia and Huella, was sentenced to five years in prison for having made statements described as "enemy propaganda."
30. Such reprisals, as well as the lay-offs, have led many journalists fired for political reasons to form independent news agencies to provide information to foreign media outlets. These journalists, however, are subjected to all types of harassment, including searches of their homes, and confiscation of equipment (facsimile machines, tape recorders, cameras, videotapes, etc.). During the period covered by this annual report, the Inter- American Commission on Human Rights has received abundant information that confirms the information in the preceding paragraphs. Following are some of the cases that describe the intimidating measures adopted by the Cuban State:
a. Néstor Baguer, President of the Agencia de Prensa Independiente (APIC: Independent Press Agency) was seriously injured by an unknown individual who hit him several times; as a result he suffered a broken wrist and several hematomas. The events occurred in Havana, on March 2, 1995. On July 11, 1995, members of the State Security force searched his home, seized a facsimile machine, and disconnected his phone service. Days later Néstor Baguer filed a complaint before the Municipal Court of Plaza to secure the return of what had been confiscated. Nonetheless, the court clerk refused to admit the document, stating that it had no legal basis.
b. Roxana Valdivia, correspondent of Reporters without Borders and member of the Independent Press Agency, was detained May 22, 1995, and held for interrogation for 10 hours. Since, she has continuously received threatening phone calls. Orestes Fandevila, Luis López Prendes, and Lázaro Lazo, also members of APIC, were detained and interrogated for several hours on July 8, 1995.
c. During the period covered by this report, other independent news agencies were created, such as "Habana Press," "Cuba Press," Círculo de Periodistas de la Habana," and "Patria." In July 1995, the anniversary of the sinking of the 13 DE MARZO tugboat, several independent journalists were harassed by the Cuban authorities. On July 12, 1995, one day before the anniversary, Rafael Solano, the director of "Habana Press," was detained for interrogation by State Security agents. During his detention he was accused of writing articles with a view to damaging the system through subversive radio stations and newspapers, and informed that a proceeding was begun against him under charges of "enemy propaganda." He was also accused of instigating people to participate in a protest over the sinking of the 13 DE MARZO tugboat. After 11 hours of interrogation he was taken to his residence and placed under house arrest. The following day he was taken once again to the State Security offices, where he was given an official warning to suspend his "enemy propaganda" activities involving providing information to the foreign press.
d. Also on the second anniversary of the sinking of the 13 DE MARZO tugboat, July 13, 1996, there were a series of arrests and house searches of journalists who try to report outside of the official press. Joaquín Torres, member of the Habana Press, had his files, equipment, and documentation taken from him for several hours at the Tenth Police Unit of Acosta y Diez de Octubre.
e. The Inter-American Commission on Human Rights also received several complaints on journalists who were arrested in the course of 1996: Julio Martínez, of Habana Press, detained on January 14; Luis Salar Hernández, of the Independent Press Office (BPIC), held in Ciego de Avila on January 19; Raúl Rivero of Cuba Press, detained February 14; Bernardo Fuentes Camblor of the BPIC, detained on January 15, March 6, and August 12, in Camagüey; María de los Angeles Gonzáles and Omar Rodríguez of the BPIC, detained on March 13; Olance Nogueras, of the BPIC, detained April 23, 1996 in Cienfuegos; Yndamiro Restano of the BPIC, detained April 26; Lázaro Lazo, of the BPIC, detained May 24, and interrogated anew on June 24; Joaquín Torres Alvarez, threatened and pressured to leave the country on May 31, and detained on July 12; José Rivero García, of Cuba Press, received threats and work equipment was seized from him on June 9; Norma Britto, of the BPIC, held for interrogation on June 26; Orlando Bordón Galvez, of Cuba Press, interrogated on July 13; Mercedes Moreno, of the BPIC, interrogated on July 15; Néstor Baguer, of the Agencia de Prensa Independiente, interrogated on July 15 and 16; Juan Antonio Sánchez, of Cuba Press, detained on February 14 and July 30; Pedro Argüelles Morán, of Patria, interrogated on August 1; Ramón Alberto Cruz Lima, of Patria, interrogated on August 1 and 7; Magaly Pino García and Jorge Enrique Rivas, of Patria, detained in Camagüey on August 12; and Jorge Olivera Castillo, of Habana Press, interrogated on August 14, 1996.
31. The foregoing account is a motive of deep concern to the Inter-American Commission on Human Rights, as it shows that in Cuba there is no freedom of the press that would allow for different political views, which are fundamental for a democratic regime. To the contrary, radio, television, and the print media are instruments of ideological imposition that follow the dictates of the group in power and are used to transmit the messages from that group to the grass-roots and the intermediate levels.
32. The American Declaration of the Rights and Duties of Man sets forth the right to justice and due process of law in the following articles:
Article XVIII. Every person may resort to the courts to ensure respect for his legal rights. There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights.
Article XXVI. Every accused person is presumed to be innocent until proved guilty.
Every person accused of an offense has the right to be given an impartial and public hearing, and to be tried by courts previously established in accordance with pre- existing laws, and not to receive cruel, infamous or unusual punishment.
33. The doctrine of the Inter-American Commission on Human Rights establishes that the effective observance of the guarantees contained in the articles cited is grounded in the independence of the judiciary, which derives from the classic separation of powers.10 This is a logical consequence of the very conception of human rights. In effect, if one seeks to protect the rights of individuals in the face of possible state actions, it is essential that one of the organs of that state enjoy the independence needed to enable it to pass judgment on both the actions of the executive and the legality of the laws passed and even the decisions issued by members of the judiciary itself. Therefore, the Inter-American Commission on Human Rights considers that the effective independence of the judiciary is an essential requirement for the practical observance of human rights in general.11
34. In that context, the Inter-American Commission on Human Rights should reiterate, once again, that in Cuba there is still de facto and de jure subordination of the administration of justice to the political authorities. In effect, during the period covered by this report, the constitutional and criminal provisions have not changed, nor has the practice of the Cuban authorities. Article 121 of the Constitution of Cuba indicates, for example: "The courts constitute a system of state organs, structured with functional independence from any other, and subordinated hierarchically to the National Assembly of People's Power and to the Council of State."
35. The Inter-American Commission on Human Rights considers that the mere constitutional stipulation of the independence of the judicial organs with respect to political power is not a sufficient condition for ensuring the proper administration of justice. As this separation of powers is not provided for in the Constitution, the administration of justice is subjected, in fact and in law, to the political authorities. As derives from Article 121 of the Constitution, the subordination of the courts of justice to the National Assembly of People's Power, and especially to the Council of State, makes the courts depend on the political authorities. This relationship is reinforced by the function of the Council of State, to exercise "the legislative initiative and regulatory power; decision-making and issuance of rules binding on all the courts, and on the basis of its experience, to give binding instructions in order to establish a uniform judicial practice in the interpretation and enforcement of the law."12
36. For its part, Article 74 of the Political Constitution provides that the "President of the State Council is the head of state and the head of Government." In other words, the head of the Cuban State concentrates within himself all of the state organs. Accordingly, the subordination of all social affairs in Cuba to the political power; the political practice of the regime and the juridical order on which that practice is based; the excluding nature of any different political concept and the absence of effective guarantees that allow individuals to claim their rights from the State--all of these factors together allow the Inter-American Commission on Human Rights to consider that this is a totalitarian political system.
37. It is also important to note that the Council of State,- -a political organ-- issues rules "binding on all the courts." And those courts have to apply and interpret rules that include terms so imprecise as "the existence and purposes of the socialist state," "the decision of the Cuban people to build socialism and communism," and "socialist legality." Subordinated to that interpretation are all the "freedoms recognized for the citizens"; and the administration of justice takes it upon itself to apply the possible interpretations in the particular cases. This ideological and political bias has as its cornerstone Article 5 of the Cuban Constitution:
The Communist Party of Cuba, inspired by the ideals of José Martí and Marxist-Leninist, organized vanguard of the Cuban nation, is the highest-level leading force of the society and the state, which organizes and orients common efforts towards the lofty aims of building socialism and advancing towards communist society.
38. The subordination of the administration of justice to the political authorities sparks great insecurity and fear in the citizenry, and is reinforced by the weak state of procedural guarantees, especially in those trials that may directly or indirectly affect the political system in place. The procedural guarantees are set forth in the Constitution at Articles 59, 61, and 63:
Article 59. No one shall be tried or convicted by other than a competent court under the laws prior to the offense and with the formalities and guarantees established by these laws.
Every person accused has the right to defense. No violence or coercion of any kind shall be brought to bear to force persons to testify.
Any statement made in violation of this precept is void and the persons responsible shall be punished as provided by law.
Article 61. The criminal laws have retroactive effect when favorable to persons being prosecuted or already convicted. No other laws shall have retroactive effect unless otherwise provided out of considerations of social interest or public utility.
Article 63. All citizens shall have the right to direct complaints and petitions to the authorities and to receive the attention or pertinent responses, and at an appropriate place, pursuant to the law.
39. In theory, these three articles recognize six rights in respect of due process and the right to justice: 1) to be tried by a regular jurisdiction; 2) to be assisted by counsel; 3) to inviolability and personal integrity while in the custody of the authorities; 4) not to be forced to testify during the trial, which is linked to the guarantee against statements made under torture; 5) to be judged based on provisions of criminal law enacted prior to when the offense was alleged; and 6) the right to recur freely to the courts to seek justice.
40. In practice, however, these procedural guarantees are inoperable. The main limitation is the Constitution itself, which provides at Article 62 that none of the freedoms recognized in the Constitution can be exercised "against the existence and aims of the socialist state." The significance of this provision lies in the fact that it regulates, at the highest level, the practical exercise of the rights and freedoms recognized by the Constitution as enjoyed by Cuban citizens, in their relations with the state organs. Therefore the provisions of this article can be considered to permeate all political, economic, social, and cultural life in Cuba.
41. The Inter-American Commission on Human Rights also calls into question the setting of constitutional limits on rights and liberties based on criteria so vague and imprecise as, for example, "the decision of the Cuban people to build socialism and communism." It is clear that these criteria lie outside the legal ambit, falling squarely in the realm of politics. Consequently, the only governing party in Cuba will ultimately decide, in each case, whether the exercise of a given freedom or right is opposed to this postulate. This eliminates any possibility of defense for the individual in the face of the political authorities, and confers constitutional protection on the arbitrary exercise of power vis-à-vis the people of Cuba.
42. The guarantees deemed to be associated with impartial procedure generally include the right to be informed of accusations against one's person, the right to choose defense counsel, the right of the accused to confront his accusers, the right of the accused and his counsel to have sufficient time to prepare the defense, the right of the accused to bring witnesses and examine them, and the right of the accused and defense counsel to be advised in timely fashion of the trial date.
43. The Inter-American Commission on Human Rights has been informed that the exercise of the legal profession also suffers from lack of independence. This situation has been brought about by Decree-Law No. 81 of June 8, 1984, and its regulation, which establish the obligation of belonging to the National Organization of Collective Law Offices (ONBC: Organización Nacional de Bufetes Colectivos) as a pre-requisite for exercising the profession. In other words, to enter the organization one needed "to have moral conditions in accordance with the principles of our society,"13 which in practice has impeded the entry of those who dissent from the political system in place. The Ministry of Justice is in charge of the inspection, supervision, and oversight of its activity, and that of its members, issuing regulations and other provisions, and performing additional functions (First Special Provision of Decree-Law No. 81 and Article 42 of the Regulation).
44. Article 13 of the by-laws of the ONBC also stipulates that the election of directing positions be public, which in practice, according to the information provided, leads the voters to vote for militants of the Communist Party, who account for more than 85% of all the delegates, and for other candidates who do not meet with objections from the leadership. It has also been noted that the leaders use intimidation systematically to impede any opinion contrary to the line they represent.
45. The Inter-American Commission on Human Rights was also informed that the right to association of the Cuban lawyers is also thwarted by the monopoly held by the Unión Nacional de Juristas de Cuba (UNJC). In effect, it has been noted that leaders and representatives of state agencies, who at the same time occupy key Community Party positions, play a fundamental role in the activities and direction of this grouping. In this context, it should be noted that another group of lawyers, the Unión Agramontista de Cuba, has been trying to form an independent association since 1990. In February 1991 they presented an application for legalization to the Ministry of Justice, which has yet to respond.
46. The lawyers who make up the Unión Agramontista are, according to the information provided, subject to a full array of pressures ranging from "friendly counsel" to the administrative prohibition against serving as defense counsel for human rights activists and political dissidents. Furthermore, it has been noted that leaders of the Organización Nacional de Bufetes Colectivos harass the lawyers who prepare and sign documents setting forth critical perspectives on the national situation and the legal profession. In many cases the persons responsible for such documents have been called to meetings to be pressured and even prohibited from exercising the legal profession. During the period covered by this report, the Inter-American Commission on Human Rights has received many complaints that describe arbitrary detentions, summonses to appear before police authorities and prosecutors, expulsions from law offices, and even prison sentences for lawyers who sought to exercise the profession independently.
47. In the course of the period covered by this report, the Inter-American Commission on Human Rights has continued to receive information on the irregularities committed in the trials with political overtones. In effect, the publicity of judicial proceedings against persons accused of "counter-revolutionary activities" is restricted, as the hearing rooms are full of police and State Security agents who impede the access of journalists and persons not part of the family. In addition, a high proportion of the complaints received indicate that they did not have access to the file with sufficient lead time to prepare the case properly. It was also noted that the attorney's intervention was limited mainly to the trial stage; this is due mainly to the fact that the defense attorneys do not meet with the accused until one hour before the trial, and in many cases not until the moment the trial gets under way. Another characteristic of the political trials is that the system considerably reduces the possibilities of the defense to present defense witnesses, in contrast to the accusing party, which does have its own witnesses, especially when State Security agents are involved. It should be noted, however, that there are no grounds in Cuban legislation to prohibit defense witnesses. It would appear that the main explanation for the lack of witnesses for the defense is the fear of reprisals by the State.
48. The criteria placed before the Inter-American Commission on Human Rights lead it to note that the administration of justice continues to be subordinated to the political authorities, which affects the fundamental conditions for the observance, in practice, of due process guarantees. The Commission believes that as regards political trials, the courts continue to be based more on the values of the only ideology permitted in the country, than on proper judicial procedures. Moreover, it would appear from the evidence obtained that the judicial decisions have always fully favored the idea of the executive prevailing over adequate justice. The situation is aggravated by the apparent fact that in Cuba domestic law does not offer, in practice, adequate protection to the victims of human rights violations. In effect, while the Cuban legislation sets forth procedural guarantees of greater or lesser breadth, they are inoperative for one of several reasons. First, the lack of independence of the judiciary, based on constitutional precepts with ideological or political references that violate the principle of equality before the law, as the militants of the Communist Party are situated on a higher plane than the rest of Cuban citizens who dissent from the political system in place. Then is the Cuban state policy of intimidating the defense attorneys of persons detained on political grounds, who run the risk of being accused, in reprisal, for the mere fact of having such clients. Finally, in many cases it is physically impossible to find the victims of human rights violations to submit complaints or exercise remedies.
49. The first article of the American Declaration of the Rights and Duties of Man sets forth the right to life, noting that: "Every human being has the right to life, liberty and the security of his person." The Inter-American Commission on Human Rights has also considered that the right to life is "the foundation and basis of all other rights,"14 arguing that it
can never be suspended. The governments cannot use, in any circumstance, illegal or summary execution to restore public order. Such measures are proscribed in the Constitutions of the States and in the international instruments that protect fundamental human rights.15
50. The Commission has also indicated that "the obligation of respecting and protecting the right to life is an obligation erga omnes, i.e., it must be assumed by the Cuban State, like all member states of the OAS, both those parties and those not parties to the American Convention on Human Rights, in respect of the inter-American community as a whole, and in respect of all individuals under its jurisdiction, as the direct beneficiaries of the human rights recognized in the American Declaration of the Rights and Duties of Man. This international instrument, though not binding, sets forth general principles and rules of customary international law."16
51. In this context, the Inter-American Commission on Human Rights notes that during the period covered by this report it has received numerous complaints that describe violations of the right to life by agents of the Cuban State. One particularly serious case involves the shooting down of two unarmed civil aircraft of the organization "Hermanos al Rescate" by two Cuban military aircraft. In effect, on February 24, 1996, at 3:21 p.m. and 3:27 p.m., respectively, two MIG 29 aircraft from the Cuban Air Force downed two unarmed civilian aircraft from the organization "Hermanos al Rescate,"17 who were setting out to save Cuban boat people. The attack on the airplanes--according to an International Civil Aviation Organization report--occurred in international air space and caused the death of two U.S. citizens, Carlos Costa and Mario de la Peña; one U.S. citizen born in Cuba, Armando Alejandre; and one U.S. resident of Cuban nationality, Pablo Morales.
52. In this respect, the Inter-American Commission on Human Rights notes that it is processing a case on the events of February 24, 1996, as to which it will adopt a decision in due course.
53. Another grave violation of the right to life is the extrajudicial execution of political prisoner Erasmín Quesada Alvarez, 25 years of age, who was serving his sentence at the "Kilo-7" prison, in the city of Camagüey. According to the information provided, the events occurred in July 1996, in circumstances in which the victim was allowed to leave the prison with a special permit to visit his family. On observing that Erasmín Quesada Alvarez did not return to prison within the time allowed, State Security agents sought him and forcefully entered his home and proceeded to execute him as they entered, with several bullet wounds. This led a group of human rights activists to gather in protest in the town of Céspedes, province of Camagüey.
54. The Inter-American Commission on Human Rights has also been informed that on September 14, 1996, Renso Salvello Gallego, 29 years of age, who resided at Calle 110, No. 5111, between Avenidas 51 (Marianao) and 59 (City of Havana) was killed in public by a police lieutenant by the last name of Mariño, chief of the police sector in that zone. It has been noted that this official detained Salvello when he travelled by bicycle through his neighborhood and with no words passing between them, aimed him weapon at him and shot a projectile that went through his head, causing his death instantly. The victim's relatives have stated that presumably the officer had taken the young man for someone else. Nonetheless, the Asociación de Lucha Contra la Injusticia Nacional issued a communicating noting, inter alia: "Acts of this nature occur frequently in the national territory because they are provoked by impunity. An example of this is the recidivism of this member of the military, whose had committed similar prior acts."
55. The Commission was also informed that Iván Agramonte Arencibia, 28 years of age, a resident of the intersection of San Leonardo and San Indalecio, Reparto Santo Suárez, City of Havana, was assassinated by a shot at point-blank after having been detained and beaten, and when already handcuffed. According to eyewitnesses, the victim was assassinated on May 24, 1996, at approximately 10:00 a.m., by a police officer by the name of Iosvani Martorán Fernández, who detained him in the street when Agramonte was carrying some kilos of bread by bicycle. Agramonte tried to get away, but was reached again by the officer, who beat him and after handcuffing him shot him in the head with his firearm. Still alive, he was taken to the "Miguel Henríquez" hospital, where he died. The information indicates that the Luyanó funeral home, where his body laid in wake, was surrounded by a major police deployment. He left two small children.
56. Another serious case on which the Inter-American Commission on Human Rights also received information is that of Estanislao Gonzáles Quintana, who died while detained, after being detained on September 8, 1995, at the Police Unit of Consolidación del Sur, Pinar del Río, where he had been taken on charges of "unlawful economic activity." According to the relatives of Gonzáles Quintana, on September 12, 1995, they were informed by said police unit that he had died of a heart attack. Nonetheless, when the victim's corpse was displayed in the funeral home one could note, according to the information provided, hematomas and a profound gash in the forehead.
57. The information supplied to the Inter-American Commission on Human Rights indicates that as a rule these cases are not duly investigated and the perpetrators are not punished.
58. The Inter-American Commission on Human Rights should express its profound concern over these events, which merely confirm that the Cuban State is liable internationally not only for committing these unlawful acts but also on account of omission. In effect, the Cuban State is responsible for committing acts when its agents commit acts that are an attack on essential human rights. These are rights that have the status of jus cogens, i.e. they are peremptory norms of international law, and therefore are non-derogable. The Inter-American Commission should also note that the mere fact that Cuban legislation punishes homicide is not sufficient guarantee of the right to life, since it is indispensable that the state rigorously apply this norm and not endorse or provide cover for murder. The doctrine of publicists in the field of international human rights law is very extensive when it comes to analyzing the obligations of states to respect the right to life. Thus, for example, Venezuelan jurist Héctor Faúndez Ledesma states that:
In its substantive aspect, the right to life seeks to protect the citizen from capricious acts by those who hold state power and who, abusing that power, may feel tempted to dispose of the lives of those who may disturb them....
... it should be noted that [the right to life] implies two distinct obligations on the state: first, the obvious consequence is that the state authorities, and in particular the police and military organs, must refrain from causing arbitrary deaths; and second, this guarantee implies as well the state's duty to protect persons from the acts of private persons that may constitute an arbitrary attack on their lives, punishing them so as to deter or prevent such attacks.18
59. In the view of the Inter-American Commission on Human Rights, the Cuban State may also incur international liability for omission, if in the cases described throughout this chapter it fails to investigate the facts with due diligence with a view to punishing the persons responsible for human rights violations and granting just reparation to the victims. The Commission also believes that reparations for human rights violations have the purpose of alleviating the suffering of victims and doing justice by eliminating or correcting, insofar as is possible, the consequences of the unlawful acts and the adoption of measures to prevent and deter violations.
60. One of the issues to which the Inter-American Commission on Human Rights has devoted special attention in previous reports is the right of Cuban citizens to reside in their own homeland, to leave it, and to return as they deem appropriate. In this regard, the Commission observes with concern that Cuban legislation continues to fail to recognize the right of a person to leave his or her own country and to return to it, as citizens require permission from the Ministry of Interior to travel abroad. The Cuban migration authorities continue to deny visas for political reasons, thereby affecting a fundamental human right. Following are some of the cases that occurred during the period covered by this report and demonstrate thy prevailing situation:
a. María del Carmen Acosta Rivera and Enmanuel Rodríguez Acosta are unable to leave Cuba since the migration authorities will not give them the respective permission. They have had a visa to enter the United States since February 23, 1996. It should also be noted that the permit to enter the United States was issued under the Refugee Program (Case No. 15796), and that Ernesto Rivero Gutiérrez, the husband of María del Carmen Acosta, has been in the United States since May 1996.
b. Hilda Molina Morejón and her mother Hilda Morejón Serrantes had their authorization to leave the country temporarily to visit her family, which resides in Argentina, rejected. It should be noted that Hilda Molina Morejón resigned her post as director of the International Center for Neurological Restoration over ideological issues.
c. During the period covered by this report, Elio Borges Guzmán filed for the 20,000-visa lottery that the United States offered for those wishing to emigrate there, and was awarded a family visa. Despite this, Elio Borges, who is an electronics engineer, with an undergraduate degree in economics, and who worked with the Ministry of Communication, was denied permission to leave the country. According to the information provided, the Director of the Ministry, Carlos Martínez, called him to his office and called him a "traitor", and threatened him, saying he would only leave the country "when he [Martínez] felt like it." One month after having won the lottery he was transferred, as punishment, to a postal office to work delivering telegrams at a monthly salary of 110 Cuban pesos, i.e. one-third of what he had been earning.
d. Hilda Maestre Hernández and Jean Luis Ramón Labrada, 71 and 19 years of age respectively, were given visas to travel to the United States in February 1995. In addition, the Chilean government gave them a tourist visa on October 11, 1995, at the request of Mr. Iván Van de Wyngard, former general manager of Entel-Chile, who invited them to visit his country. These visas were removed from the Chilean consular offices in Havana on January 14, 1996. The Cuban authorities refuse to allow them to travel to Chile, denying them the exit permit. They have no legal problems nor other problems that should impede them from travelling. Moreover, both meet all the requirements officially established by the Cuban migratory authorities. It has been noted that the refusal of the Cuban authorities appears to be in response to the fact that the parents of Ramón Labrada sought political asylum in the United States in May 1994, and therefore cannot travel to Chile or any other country.
e. Oswaldo and Alejandro Payá Sardiñas, of the Movimiento Cristiano Liberación cannot leave the country, since the Department of Immigration has communicated to them repeatedly that they are prohibited from leaving Cuba temporarily, and that this provision is for an indefinite time.
f. Loreto Mérida García Navarro, Daniela María Morales García, Carlos Cano Orta, and Daymara Cano Morales, relatives of Pablo Morales, one of the four pilots who was in the planes shot down by the Cuban Air Force on February 24, 1996, were denied permission to leave the country and join their relatives in the United States, even though they had the respective visas. According to the information received, Daymara Cano, 11 years old, is seriously ill, and his relatives in Cuba do not have sufficient economic means to provide him with the medical care he needs.
61. The Inter-American Commission on Human Rights was also informed that Article 216 of the Criminal Code, which sanctions those who seek to leave the country informally, was reformed. The grave aspect of this norm is that not only does it order the trial of persons arrested after having initiated the trip, but also of those who could try to do so. In effect, Article 216 of the Criminal Code provides as follows:
1. The fact of leaving or undertaking to leave the national territory without abiding by the legal formalities may be punished by one to three years imprisonment or a fine of 300 to 1,000 quotas.
2. If one uses violence or intimidation against persons or force on things to perform the act referred to in the previous paragraph, the punishment is three to eight years imprisonment.
62. The Inter-American Commission also received information that the Cuban authorities are applying the punishment of banishment and imprisonment for political motives. Article 42 of the Criminal Code provides that:
1. The punishment of banishment consists of prohibiting residence in a given place, or obliging one to remain in a given locality.
2. The term of the punishment of banishment is one to 10 years.
3. The sanction of banishment may be imposed in all those cases in which the permanence of the person punished is socially dangerous.
4. Banishment is not applicable to persons under 18 years of age.
63. For its part, the punishment of limitation on one's liberty provided for at Article 34 of the Criminal Code indicates, inter alia, that "it is subsidiary to the deprivation of liberty that it does not exceed three years, and it is applicable when, based on the type of offense and its circumstances, and in light of the individual characteristics of the person punished, there are well-founded reasons to deem that the purpose of the punishment can be attained without imprisonment." During execution of the judgment, the sanctioned person "(a) cannot change residence without court authorization; (b) has no right to promotions or salary increases; (c) is required to appear before the court whenever called to offer explanations on their conduct during the execution of the punishment; (d) should maintain an honest attitude towards work, strict observance of the laws and respect for the norms of socialist life.... The punishment of limitation of liberty is carried out under the supervision and vigilance of the mass and social organizations of the place of residence of the person sanctioned." (emphasis added).
64. The Inter-American Commission on Human Rights notes its profound concern over the observance of these provisions of Cuban criminal law, which violate the principles set forth in the American Declaration of the Rights and Duties of Man. In effect, Article VIII of the Declaration states that:
Every person has the right to fix his residence within the territory of the state of which he is a national, to move about freely within such territory, and not to leave it except by his own will.
65. The Commission also believes that the imprecision and subjectivity of terms such as "socially dangerous" and "norms of socialist life" used in the Cuban criminal code constitute a factor of legal insecurity and lends itself to the Cuban authorities committing all types of arbitrary acts. The imprecision and breadth of the concept of dangerousness allows the Cuban State to impose the official ideology by force, giving way to injustices and thereby violating the rights of individual liberty, due process, residence, and movement.19 The Inter- American Commission on Human Rights cites the following cases as illustrative of the situation described in the foregoing paragraphs:
a. During the period covered by this report, 10 women, members of the Movimiento de Madres Cubanas por la Solidaridad, were repressed by the Department of State Security. One of these cases involves the arrest and later banishing of journalist Roxana Valdivia Castilla, who was held more than 24 hours and then taken as a prisoner to the Havana rail terminal, for transfer to the province of Ciego de Avila, where she was forbidden from returning to Havana. According to the information provided, this operation was directed by Lieutenant-Colonel Arístides. The same procedure was followed in the case of schoolteacher Aída Rosa Jiménez, also a representative of the Movimiento de Madres Cubanas por la Solidaridad. When she reached the province of Camagüey she was detained, interrogated, and later taken to the rail terminal, where she was prohibited from remaining in Camagüey with the threat that the next time she went there it would be to serve a prison term for the crime of "unlawful association," as she would be accused of organizing the mothers' movement, which has no legal authorization to operate. It should also be noted that Aída Rosa was accompanied by activist Olga Montero Rodríguez, who was forced to stay at the terminal and find her way back to Havana on her own. This was not the first time that activist Aída Rosa was harassed by the State Security, as in early 1995 she was the victim of banishment within Cuba, in the municipality of Camanjuaní, province of Villaclara, along with former political prisoner Marta María Vega Cabrera.
b. María Antonia Escobedo Yáser, member of the Coordinating Committee of the Concilio Cubano, was detained on February 16, 1996, taken to the police unit of Altahabana, in the city of Havana, and forced to return to her place of residence in Santiago de Cuba.
c. Alfrans Ossiel Gómez Alemán, member of the Cuban Christian Democratic Party, was detained January 6 to 9, 1995, at the "Versalles" offices of the Department of State Security, province of Matanzas, where a warning was drawn up and presented to him for "unlawful association." Later he was detained from February 12 to 15, and 24 to 26, 1995, and taken once again to the Department of State Security, where he was threatened that if he went to the capital city again he would be tried for contempt of the authorities (desacato) and banished from his province of origin. Once again, he was detained March 16 and 18 of that year in the municipality of Colón, Matanzas, for sending a letter to the Council of State denouncing the reprisals against members of the Concilio Cubano.
d. Rafael Solano and Julio Martínez, journalists from Habana Press detained for several hours in the city of Havana. Solano and Martínez were warned to cease their activities as independent journalists, as otherwise they would use violence to shut down the newspaper where they worked, along with the Independent Press Bureau of Cuba (Buró de Prensa Independiente de Cuba). Solano's car was taken out of circulation, so as to limit his movements, since he lives on the outskirts of the city. As a result of the harassment to which Rafael Solano was subjected, Rafael Solano said that "Habana Press will continue in the first line of combat for freedom of the press and of ideas in Cuba, and will only disappear when all its members are held prisoner or disappeared in the constellation of prisons and places for holding people controlled by the Cuba's communist regime."
66. During the period covered by this report, the Inter- American Commission on Human Rights also received information that the maximum time allowed to be abroad is 11 months, and that definitive departure is met by confiscation. In addition, Cuban citizens who reside abroad need a special permit each time they enter; the procedures to obtain it require the payment of fees that are costly by Cuban standards. These permits for in-country visits are generally short (15 days, one month), and are required no matter the country of residence.20
67. The Inter-American Commission was also informed that it is still extremely difficult to emigrate, even though not formally prohibited, for physicians and certain other technical categories, unless they are older and have few remaining years of productive activity. The possibility of emigrating is further restricted by the fact that whoever wishes to emigrate must abandon their property and quit their job.
68. Another matter always of concern to the Inter-American Commission on Human Rights is the situation of the Cuban boat people, who year after year set out to sea in search of a better life. In 1993, the Commission noted that 3,656 boat people came to the United States coasts; it is estimated that only one in three achieved their purpose. This figure increased considerably in 1994, especially after the Cuban coast guard and police allowed the departure en masse of everyone who set to sea in precarious craft, in early August of that year. The 1994 figure is 30,000.21
69. The sources of information available to the Inter- American Commission on Human Rights indicate that the migration agreements signed by Cuba and the United States in 1995 have as their main objective to restrict continued migration. The commitment of the Government of the United States is to return to Cuba all Cubans intercepted at sea, instead of allowing their entry, as was the practice up until 1994. For its part, the Cuban government undertakes not to take reprisals against these persons or against those who seek a visa to exit the country.22 Nonetheless, the Inter-American Commission on Human Rights has been informed that in practice the persons repatriated, though not placed on trial, continue to suffer all types of discrimination on political grounds, especially when they seek employment.
70. Based on the information indicated above, the Inter- American Commission on Human Rights considers that the Cuban State continues to restrict the right to residence and movement set forth in the American Declaration of the Rights and Duties of Man. The control exercised by the Cuban State evidently has political overtones, since most affected are those who hold positions critical of the group in power. It should also be noted that the right to residence and movement is not recognized in the Constitution; this is an anomaly that should be corrected.
71. In its 1994 Report, the Inter-American Commission on Human Rights expressed concern over "the grave prison conditions and deliberately severe and degrading treatment of the prisoners by the Cuban government, which constitute serious human rights violations."23 In this respect, the Commission laments having to note that this situation remains unchanged. Indeed, the Inter- American Commission on Human Rights should highlight that during the period covered by this report, the number of complaints received over the grave conditions to which the prison population in Cuba is subjected on a daily basis is far greater than the number of complaints that describe violations of other rights set forth in the American Declaration.
72. In effect, overcrowding, poor hygienic conditions, scarcity and poor quality of food, deficient medical care, beatings, solitary confinement as punishment (behind closed doors and without light), keeping common prisoners together with those jailed for political reasons, and of those convicted with those awaiting trial or judgment, limited family visits, etc., are some of the prevailing conditions in Cuban prisons. The sources of information also describe the existence of 294 prisons and correctional work camps nationwide, with an estimated 100,000 to 200,000 prisoners of all categories.24 Further, the Inter- American Commission on Human Rights was also informed that as of July 1996 there were approximately 1,173 persons being tried for crimes with political overtones.25
73. There are six maximum security prisons in Cuba. (A) Combinado del Este (Havana); (B) Cinco y Medio (Pinar del Río); (C) San Severino (Matanzas); (D) Santa Clara (Las Villas); (E) Kilo Siete (Camagüey); and (F) Boniato (Oriente). The farms (granjas) are detention centers surrounded by barbed wire fence and armed guards, and the open fronts (frentes abiertos) are workplaces in the countryside or city, with minimum security. It has been noted that the prisoners on the "farms" produce the pre- fabricated elements for construction, and the prisoners at the "open fronts" assemble them. The three stages of confinement are maximum, minor, and minimum security (i.e. the prison, the farm, and the open front, respectively).
74. The basis of the Cuban penal system is social defense. The function of punishment is to protect the group from "socially dangerous" persons and to seek to re-educate those who are punished. Furthermore, prison treatment during the period of imprisonment provides, in theory, that the persons punished be remunerated for their socially useful work; they are provided with appropriate clothing and footwear; they are given normal daily rest and one rest day per week; they are provided medical and hospital care, in case of illness; they are given the right to obtain long-term social security benefits in the case of total disability caused by work-related accidents. If a prisoner dies due to work-related accidents, his family with receive the respective pension. Prisoners are to be given an opportunity to receive and broaden their education and technical training; they are given, to the extent and in the manner provided in the regulations, the possibility of exchanging correspondence with persons not held in prisons, and to receive visits and consumer goods; based on their conduct, and to the extent and in the manner provided in the regulations, they are authorized to make use of the conjugal ward; they are given leave to visit outside the prison for limited times; they are given the opportunity and means to enjoy recreation and practice sports based on the activities programmed by the prison; and they are promoted from one prison regime to another less severe one.26
75. In practice, the situation is entirely different. The Inter-American Commission on Human Rights has received testimony and information on various prisons, including the Combinado del Este, which is the largest in the country. It is situated approximately 18 kilometers from Havana. The testimony transcribed just below is a report from a Cuban-based nongovernmental organization prepared in June 1995:27
During a recent visit by Mr. Esteban Lazo, high- level leader of the Communist Party, to the Havana prison Combinado del Este, the authorities were installing new lamps with cold light until 2 o'clock in the morning. The conflictive prisoners were transferred to the halls on the third floor. Mr. Lazo only went to the second floor. The order given in the halls of this prison was for the scene to be perfect and to give the visitors the impression they were being useful. That day lunch for the personnel employed at the prison was rice mixed with beef, pork, sausage, and bread, mixed salad of cabbage, tomatoes, and carrots. There were soft drinks and cookies. At all times Mr. Lazo was followed by a retinue of more than 30 officials. These visits never reveal deficiencies in the prisons where they are conducted.
Meanwhile, in the prison, the buildings have problems in their construction, and so are humid and cold; there are many tuberculosis cases among the prisoners. Eighty percent of the prison population is made up of young people under 35 years of age. Most have one or more relatives in prison. This prison has several thousand prisoners, making it the largest in the country. Many of them enter for six months and then other cases are brought against them. More than fifty percent are recidivists.
The lack of medication is alarming. The patients in the hospital are mistreated; some have died as a result. Several hundred prisoners have been admitted for malnutrition, and there are epidemics of conjunctivitis and hepatitis. The asthmatic prisoners complain about the lack of medication for periods of crisis. It is also known that some prisoners sleep on the floor. There are prisoners whose molars and hair are coming out. Others have had to be admitted on several occasions for malnutrition. The prisoners admitted complain of weakness and ask for food. They do not want to enter the infirmary, but rather are taken to the yard to eat oranges, for they're hungry. They walk about leaning on the walls, dragging their feet, pallid, and extremely thin, with their pants falling down.
It was learned that prisoners here have been disabled by neuropathy. There's also the case of prisoner Omar Linares, who died after being taken to the hospital at Combinado del Este. Linares was admitted on the 23rd [of June, 1995], with abdominal pains and weighing very little, his body almost corpse- like. On June 27 [of that year] he died. The saddest aspect of this case is that he had served his sentence as of June 22, and they had not released him. According to the relatives, he was diagnosed with an ulcer, and was in a severe state of malnutrition such that when his ulcer perforated, it led to his death.
So far this year approximately 10 prisoners have died at Combinado del Este who enjoyed good health. They lost their life due to "natural deaths." In addition are the suicides of minors due to unknown causes. The food consists of sweet potato, two tablespoons of pasta per person, and one boiled plantain that the prisoners eat with the peel, which causes diarrhea with bleeding.
Further, on April 25 the prisoners who work repairing the operating room were brought rice with decomposed fish; the stench emanated, was unbearable, and the food vessel had a large number of worms. The prisoners protested and refused to work that afternoon.
76. Another report on La Manga prison, province of Granma, describes the situation of the political prisoners in the following terms:28
They place us with highly dangerous criminals, persons who have personality disorders, even psychiatric disorders. In many cases State Security, drawing on the presence and low moral values of such persons, use them to commit outrages on our dignity. Many are used by State Security as informants; they promise them benefits in exchange for providing information on what we say, and they authorize them to beat us if we speak poorly of the President of the Republic. Furthermore, the prison authorities have created a system according to which certain prisoners are charged with overseeing the discipline of the others in exchange for certain privileges. They are violent, unscrupulous, and highly dangerous persons who impose excessive rigor. The slightest disciplinary detail committed by a prisoner is met with outrages, offenses with denigrating words, and even savage beatings.... We are taken to severe interrogations for false information given by the common prisoners, in addition to which we are threatened with death.... Those of us who are Christians are threatened with common lawsuits for, according to the authorities, engaging in "the work of proselytizing." In addition, we are denied religious services because they tell use that we use it for political ends.... The food is ill- prepared, often the fish they give use is decomposed, which causes us serious digestive problems.29
77. The testimony received by the Inter-American Commission on Human Rights reflects the gravity of the prison situation in Cuba, and merely confirms that the Cuban State has not adopted any measure to comply with the minimum international standards for the treatment of prisoners, an international instrument approved by the United Nations Economic and Social Council on July 31, 1957. Moreover, the Inter-American Commission considers that these facts and those cited just below are grave human rights violations:
a. At the Combinado prison of Guantánamo, in the province of Guantánamo, at the eastern end of Cuba, there have been reports of prisoners being beaten, including political prisoner Raúl Ayarde Herrera. Ayarde was beaten while handcuffed and left to bleed, unconscious, in a cell. At the same time, he was refused medical care.
b. At the Nieves Morejón prison in the province of Sancti Spiritu, continuous beatings of the prisoners by the jailers, known as Raunel, Chinea, Pionero, and Nazco, among others, have been reported.
c. At the Cerámica Roja prison, in Camagüey, "the intimidation, mistreatment, beatings, and other excesses and abuses are daily," according to the political prisoners at this prison. The non-commissioned officer Eduardo Gómez brutally beat prisoners Eisler Jiménez Díaz, Carlos Rudin Díaz, and Víctor Zaldívar Robles, who broke the skull with a belaying pin. Zaldívar Robles, 24 years of age, who is awaiting trial, is a neighbor of Manuel Fajardo in the town of Sibanicú. In addition, Armando Alonso, who is imprisoned for returning clandestinely, was beaten with sticks truncheon during a search of his cell.
d. At the Kilo 7 prison, also in Camagüey, on March 2, 1995, Jesús Peña Pedraza was beaten at the hands of Sargent Evelio Avila Urra. Prisoner Jorge Luis García was beaten by Sub- lieutenant Rafael Fonseca Lorente and Chief of Detachment No. 6, Lieutenant Arterio Aguilera Pando. Non-commissioned officer Manzanillo, section chief, dealt a brutal blow to prisoner Juan Miguel López Acosta, leaving pronounced marks on his body.
e. At the Kilo 8 prison, also in the province of Camagüey, prisoner Samuel Simpson died as the result of a beating. Prisoners José Alejandro Alvarez, Lázaro Urra Herrera, and Jorge Andrés Gonzáles Ramos have also been beaten. Last August 3, 1995, prisoner Bárbaro Tererán fell from the prison roof to which he had climbed when he saw several guards preparing to assault him. Despite his serious condition, by order of the section chief, non-commissioned officer Velázquez, he was beaten. Taken to the Hospital Amalia Simoni, he reportedly suffered fractures of the column and the collarbone.
f. At the La 40 prison farm, located on the Carretera de Nuevitas, Captain Rogelio Pérez Cruz beats the prisoners, whom he offends and humiliates.
g. At the San José prison farm on the Carretera de Santa Cruz, political prisoner Miguel Angel Velazco Fernández was assaulted by Osvaldo Hernández Rodríguez, the second-in-command at said farm.
h. At the Combinado Sur prison in Matanzas, prisoner Jorge Rodríguez was sent, bleeding, to solitary confinement after the brutal beating to which he was subjected by officer Santana. Also beaten were the disabled persons Alipio Basulto Echeverría; Jorge Ignacio Socarrás; Elizardo Jardín Zamora, resident of Marín No. 23, Matías Santiago de Cuba; Alexis Gonzáles Ruíz, resident of the Carretera Los Pilones No. 11, Sierra Cubitas, Camagüey; Yasdubal Méndez, resident of Velarde No. 172, Matanzas. The last five are still awaiting trial.
i. At the Guanajay prison in the province of Havana, a beating was reported, by Lieutenant Orozco against the person of common prisoner Ramón Ramos, who was left unconscious. Also beaten were political prisoners Carlos Novoa Ponce, Angel Prieto Méndez, and José Antonio Sora Salinas.
78. The aforementioned reports allow the Inter-American Commission on Human Rights to consider that beatings, far from constituting isolated incidents, are used habitually and systematically by Cuban State agents as a means of punishment or intimidation. Particularly serious, according to the information provided, is that the complaints of mistreatment brought before the competent authorities never go anywhere. It should be noted that Article 30(1) of the Criminal Code provides that:
The person punished cannot be subjected to bodily punishment nor may one use against him any measure that represents humiliation or that is an affront to his dignity.
79. It is clear, in light of the facts and law set forth above, that the Cuban State not only violates the principles and standards set forth in the various international human rights instruments, but that it breaks its own laws, thereby thwarting the prisoners' right to personal integrity. In addition, the Inter-American Commission on Human Rights must state its profound concern over the lack of medical care, in insufficient medical care, in the prisons and other centers of confinement, which has been repeatedly denounced, and which in many cases has resulted in the death or permanent injury of the victims.
80. The Resolution adopted at the Ninth International Conference of American States held in Bogotá, Colombia, in 1948, which gave rise to the American Declaration of the Rights and Duties of Man, indicates among its considerations, inter alia, that the peoples of the Americas "have as their principal aim the protection of the essential rights of man and the creation of circumstances that will permit him to achieve spiritual and material progress...." The American Declaration sets forth not only civil and political rights, but also economic, social, and cultural rights.
81. The Inter-American Commission on Human Rights has noted that "a life free from fear and want inevitably entails guaranteeing civil and political rights, for it is through popular participation that those whose economic and social rights are denied can participate in the decisions that relate to the allocation of national resources and the establishment of social, educational, and health programs. Participation of the people, an objective of representative democracy, guarantees that all social sectors participate in the formulation, implementation, and review of national programs. And although one could say that political participation strengthens protections for economic, social, and cultural rights, it is also true that the enforcement of those rights creates the conditions for the population in general to be empowered, i.e. to participate actively and productively in the process of political decision-making."30
82. The lack of the right to political participation understood as the right to organize political parties and associations has been one of the main factors contributing to the economic crisis in Cuba. The Inter-American Commission has stated that "free debate and ideological struggle can increase the social level and the economic conditions of the community, and exclude the monopoly over power of a single group or individual."31
83. The figures available to the Inter-American Commission on Human Rights indicate that 80% of the Cuban industrial sector is not operating and that 40% of the active population is unemployed or underemployed.32 Consequently, it has been noted that the Cuban State, in order to offset the loss in revenues, continues to provide 60% of salaries to the unemployed. Nonetheless, this sum is not enough to cover the basic needs of the average worker.33 As a result, according to the information provided, these workers must engage in illegal activity or seek work in the informal sector or in the self-employed jobs they are authorized to perform. The various forms of social control established by the state contribute to restricting the labor options, with the consequent sequelae of bureaucratic red tape required to obtain the authorizations for switching jobs. The dynamics characteristic of a still-centralized economy operate similarly.
84. The economic crisis forced the Cuban State to adopt a Law on Foreign Investment in September 1995. A United Nations report has nevertheless expressed concern over the situation of workers in the foreign-owned companies:
in particular, in view of the lack of any type of collective bargaining, and the arbitrariness entailed in the fact that hiring, the payment of wages, the termination of contracts, and other aspects of the labor relationship are not determined directly between the company and the employees, but through an employing entity designated by the Government. The same discriminatory criteria based on ideology that governs in other ambits may also be applicable in the context of these companies, with which government control over the workers is assured.
... the wages are not paid directly to the workers, but to the government employing entity, which is paid in hard currency and later pays the workers in national currency. The difference between the wages paid by the company and those effectively paid to the worker by the employing entity is thought to be considerable, and enables the state to obtain considerable profits to the detriment of what the worker could have received. In addition, the law establishes that when the mixed companies or companies entirely foreign-owned consider that a given worker does not meet its demands in the workplace, they may ask the employing entity to replace him, with no legal protection.34
85. The Inter-American Commission on Human Rights considers that in light of the reforms in the economic and labor area, it is increasingly necessary to ensure the presence of free and independent unions that defend the labor rights of workers. It is in the area of these rights that the Commission finds the greatest contradiction between the ideological postulates of the system and its practical operation. In effect, one of the postulates of the system that prevails in Cuba today is building socialism to achieve an egalitarian society without exploiters or exploited. Nonetheless, the facts and the law in force suggest that the situations of exploitation are multiplying.
86. The Committee of Experts on the Applications of Conventions and Recommendations of the International Labor Organization under Convention 87 (Trade union freedom and protection of the right to organize) on relations between the Central de Trabajadores de Cuba (CTC) and the Communist Party stated, inter alia, that:
... the Committee [of the ILO] insists that in a single- party context and with a trade union federation the practice of outside interference might be favored, to the detriment of union automony.
The Committee [of the ILO] calls on the Government [of Cuba] to guarantee in legislation and in practice the right of all workers and employers, without distinction, to freely form independent professional organizations, outside of all existing trade union structures, if they so desire (Article 2 of Convention 87), as well as the free election of their representatives (Article 3 of the Convention).35
87. The grave economic situation the country is experiencing has also affected health, nutrition, and housing. In effect, the lack of medical equipment and the scarcity of basic drugs are some of the conditions found in some hospitals of Cuba. As has been indicated, the provincial hospitals lack basic drugs such as analgesics, antibiotics, anesthesia, and suture materials. This situation has resulted, according to the information provided, in the surgical clothes and tools not being sterilized. Contradictory in all this is that the medical products manufactured in Cuba are earmarked to the hospitals that provide medical care to foreigners. At this stage of the analysis it is interesting to observe what is said in this regard by the United Nations Special Rapporteur when he notes that:
the great scarcity of medicines, for which humanitarian aid from abroad is merely a stop-gap measure, and the lack of equipment in a large share of the country's hospitals, is a serious motive of concern for the common citizen, who also feels discriminated against when noting the existence of hospitals reserved for foreigners who pay foreign exchange, and where they enjoy services out-of-reach to the common citizen. This is all the most lamentable considering the level of health care services common citizens were accustomed to until a few years ago.36
88. The rationing card by which basic foods are distributed has become significantly less useful, covering only the first 10 days of the month. It has also been indicated that the free agricultural market provides some relief to the economic crisis. Nonetheless, the official price of rice is 24 cents per pound, while in the agricultural market the cost is nine cents per pound.
89. In this respect, the Inter-American Commission on Human Rights should reiterate its doctrine, which establishes that: "When the most vulnerable sectors of society lack access to the basic elements for survival that would allow them to emerge from their situation, one is either voluntarily violating or condoning the violation of the right to be free of any discrimination and the concomitant principles of equal access and equity in distribution, and the general commitment to protect the vulnerable members of society. In addition, if those basic needs are not satisfied, the individual's very survival is threatened, which implies the right to life, personal security, and as indicated above, the right to participate in the political and economic processes."37
As indicated throughout this report, the Inter-American Commission on Human Rights has reached the following conclusions:
90. Some of the human rights measures adopted by the Cuban State during the period covered by this report are positive, especially those that have to do with the release of political prisoners. Nonetheless, the Commission expects that this step will be the first in a process that will put an end to the imprisonment, on political grounds, of 1,173 people, who are serving sentences in Cuban jails. Another measure which the Commission believes merits special mention is the permission given by the Cuban State for some international human rights organizations to make on-site visits to verify the human rights situation in Cuba. The Commission believes it necessary, however, that such permission not be limited to certain groups, but that it be open to all the international human rights entities that so request, so as to evaluate the situation in Cuba. Lastly, the holding of human rights seminars, which promote the observance of these rights in Cuba, is a positive measure which ought to be mentioned.
91. These measures, however, still do not represent, either de facto or de jure the desire of the Cuban State to bring about a substantial reform that will permit full exercise and enjoyment of tlhe right to political participation set forth in Article XX of the American Declaration of the Rights and Duties of Man. In other words, a reform that would allow the ideological and partisan pluralism which is one of the bases of democratic government. The urgent need to advance along the path of democratization and respect for fundamental rights and freedoms requires appropriate conditions, and it is a fundamental responsibility of the Cuban State to create these conditions. The inter-American community, for its part, also has the responsibility to help bring about such conditions so as to lead to the untrammeled observance of human rights in Cuba.
92. The civil and political rights of Cuban citizens continue to be seriously violated by the state. Thus, discrimination on political grounds is generally translated into violations of the freedom of expression, assembly, and association, which carry prison terms, temporary detentions, harassment, threats, job loss, home searches, adoption of disciplinary measures, etc. Also of concern to the Commission are the legal forms that continue to be used by the Cuban legal order to establish limits on the exercise of the rights and freedoms citizens are recognized to have. Under these formulas, it is citizens who should adapt the exercise of their rights and freedoms to the purposes of the state. The democratic conception is just the opposite: it is the state that has to limit its action in the face of the rights inherent to the person, and to reduce its intervention only to attain the observance, in practice, of the civil, political, social, economic, and cultural rights of all citizens.
The Inter-American Commission on Human Rights, based on the conclusions of this report, formulates the following recommendations to the Cuban State:
93. Provide reasonable safeguards to prevent violations of human rights and to conduct exhaustive investigations of cases in which the right to life has been violated, in order to identify the parties responsible, impose pertinent punishment, and grant adequate compensation and indemnification to members of the victim's family.
94. Adopt urgent measures to release--unconditionally--the persons serving sentences for crimes against the security of the State; unlawful association; clandestine printed material; dangerousness; rebellion; enemy propaganda and similar offenses, as well as attempts to leave the country unofficially.
95. Eliminate from criminal legislation any procedure which punishes the freedoms of expression, association and meeting, and especially the offenses cited in the preceding paragraph.
96. Delete from the Penal Code any provisions concerning the dangerous state, pre-delinquent security measures and the terms "socialist legality,"; "socially dangerous"; and "standards of socialist coexistence," since their lack of precision and their subjective nature constitute a source of juridical insecurity which creates conditions permitting the Cuban authorities to take arbitrary action. Also eliminate the penal norm of "official warning" that is used to hold the threat of punishment over the heads of individuals having "ties or relationships with persons who are potentially dangerous to society."
97. Cease the harassment of groups that defend human rights and espouse other political beliefs, and allow them to obtain legal standing.
98. Reform the Political Constitution of the State in order to establish the separation of powers, and thus avoid the situation in which the administration of justice is subordinate to political power.
99. Comply with the minimum international rules for the treatment of prisoners and thus improve living conditions for the prison population of Cuba. It is also imperative that the Cuban State take urgent measures to prevent the prison authorities from continuing to violate the physical integrity of the inmates.
100. To adopt the necessary measures in order to permit ideological and party pluralism for the full exercise of the right to political participation in conformity with Article XX of the American Declaration of the Rights and Duties of Man.
101. To ratify the principal international human rights instruments to which Cuba is not yet a party.
2 The dispositive part of Resolution No. VI of the Eighth Meeting of Consultation of Ministers of Foreign Affairs of the OAS states the following:
1. That the espousal of Marxism-Leninism by any member of the Organization of American States is incompatible with the Inter-American System, and the alignment of such a government with the Communist bloc weakens the unity and solidarity of the hemisphere.
2. That the current Cuban Government, which has officially identified itself as a Marxist-Leninist Government, is incompatible with the principles and purposes of the Inter- American System.
3. That this incompatibility excludes the current Government of Cuba from participating in the Inter-American System.
4. That the Council of the Organization of American States and the other agencies and organizations of the Inter-American System take without delay the necessary steps to comply with this Resolution.
The complete text of Resolution VI is contained in the "Eighth Meeting of Consultation of Ministers of Foreign Affairs to serve as an Organ of Consultation in Application of the Inter- American Reciprocal Assistance Treaty, Punta del Este, Uruguay, January 22-31, 1962, Meeting Documents," Organization of American States, OEA/Ser.F/II.8, doc.68, pp. 17-19. This Resolution was adopted by vote of fourteen countries in favor, one opposed (Cuba) and six abstentions (Argentina, Bolivia, Brazil, Chile and Mexico).
3 The Situation on Human Rights in Cuba, Seventh Report, IACHR, OEA/Ser.L/V/II.61, Doc. 29 rev. 1, (1983) page 14, paragraph 35.
4 The last report on the human rights situation in Cuba was published by the Commission in its Annual Report 1994, Chapter IV.
5 IACHR, 1994 Annual Report, Chapter IV, p. 167, OEA/Ser.L/V/II.88, Doc. 9, rev., February 17, 1995.
6 IACHR, 1994 Annual Report, p. 167.
7 Cuba has a population of approximately 11 million.
8 As a result of this system, the main newspapers, such as Granma (official organ of the Communist Party), Juventud Rebelde (organ of the Union of Young Communists), and Trabajadores (organ of the Confederation of Workers of Cuba) reflect only government viewpoints. Only to a very limited extent do these newspapers cover the debates that may take place in the high-level organs of the state that have decision-making power over issues of fundamental interest to citizens, placing priority on the positive aspects of current events over any negative aspects.
9 El Nuevo Herald, April 27, 1995.
10 IACHR, Diez Años de Actividades 1971-1981, General Secretariat of the Organization of American States, Washington, D.C., 1982, p. 332.
11 IACHR, La Situación de los Derechos Humanos en Cuba, Seventh Report, General Secretariat of the Organization of American States, OEA/Ser.L/V/II.61, Doc. 29 rev. 1, October 4, 1983, p. 68, para. 2.
12 Article 121 of the Constitution of Cuba.
13 Article 16(a) of Decree-Law No. 81, June 8, 1984.
14 IACHR, Diez Años... op.cit., p. 339.
16 IACHR, Report No. 47/96, Case 11,476 "Barco Remolcador 13 de Marzo vs. Cuba," OEA/Ser.L/V/II.93, Doc. 32, October 16, 1996, p. 20, para. 77.
17 The organization "Hermanos al Rescate" is a non-profit association founded by civilian citizens and mainly voluntary pilots on May 12, 1991. This organization was registered as a non-profit corporation in the public records of the state of Florida, United States. For more than five years they have been patrolling the Straits of Florida to save the thousands of people fleeing from Cuba on precarious craft.
18 Héctor Faúndez Ledesma, Administración de Justicia y Derecho Internacional de los Derechos Humanos (El Derecho a un Juicio Justo), Universidad Central de Venezuela, School of Legal and Political Sciences, 1992, pp. 61-62. 19 Decree No. 128 of 1991, which supplements the Cuban Criminal Code, establishes that the declaration of pre-criminal dangerous condition should be decided summarily. According to that decree, the Revolutionary National Police creates the file from the report of the acting agent, the testimony of neighbors who attest to the conduct of the "dangerous person," and official warnings, if any. After completing the process of compiling the case file, the police transfer it to the municipal prosecutor, who makes the decision as to whether to submit it to the People's Municipal Court to determine the degree of danger within two working days from its receipt. Within this time frame the Court will decide whether any other proceeding is appropriate; if so, it shall be performed within five working days. If the Tribunal considers the case file complete, it will set the date of the hearing, where the parties will appear. Twenty-four hours after the hearing is held, the Municipal Court shall hand down its judgment.
20 See Report by the United Nations Special Rapporteur, A/ 50/663, October 24, 1995, p. 17, para. 33.
21 See IACHR, 1994 Annual Report, Chapter IV, p. 163.
22 See Report of the United Nations Special Rapporteur, A/50/663, October 24, 1995, p. 18, para. 35.
23 IACHR, 1994 Annual Report, Chapter IV, Human Rights Situation in Cuba, p. 168, OEA/Ser.L/V/II.88, Doc. 9 rev., February 17, 1995.
24 See the Report by the United Nations Special Rapporteur, A/50/663, October 24, 1995, p. 18, para. 37.
25 See Report of the United Nations Special Rapporteur, A/51/460, October 7, 1996, p. 10, para. 19.
26 See Article 31 of the Cuban Criminal Code.
27 The identity of the nongovernmental organization which supplied the testimony is withheld, pursuant to Article 34.4 of the Inter-American Commission on Human Rights Regulations.
28 The identity of the nongovernmental organization which supplied the testimony is withheld, pursuant to Article 34.4 of the Inter-American Commission on Human Rights Regulations.
29 See Report of the United Nations Special Rapporteur, A/50/663, October 24, 1995, p. 19, para. 40.
30 IACHR, 1993 Annual Report, Chapter V, p. 553, OEA/Ser.L/V/II.85, Doc. 8 rev., February 11, 1994.
31 IACHR, 1979-1980 Annual Report, p. 142, OEA/Ser.L/V/II.50 Doc. 13, Rev 1, October 2, 1980.
32 United Nations, A/50/663, October 24, 1995, El Disfrute de los Derechos Económicos, Sociales y Culturales, para. 44, p. 20.
33 The exchange rate is 40 pesos to the dollar; the average salary is approximately US$ 4.50.
34 Ibid., United Nations, pp. 14-15, paras. 35 and 36.
35 International Labor Conference, 82nd meeting, Report III (part 4A), Report of the Committee of Experts on the Enforcement of Conventions and Recommendations, Geneva, 1995, pp. 329-330.
36 Ibid., United Nations, A/51/460, October 7, 1996, p. 14, para. 33.
37 IACHR, 1993 Annual Report, pp. 554-555, OEA/Ser.L/V/II.85, Doc. 8 rev., February 11, 1994.