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A/HRC/WGAD/2012/69

Opinion No. 69/2012, Cuba

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2012-11-23 · en UN

Opinion; Subjects: CUBA, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]

Volltext (verifizierbarer Originaltext)

GE.13-11228 (E) 220313 250313

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its sixty-fifth session (14–23 November 2012)

No. 69/2012 (Cuba)

Communication addressed to the Government on 11 September 2012

Concerning Mr. Alan Phillip Gross

The State is not a party to the International Covenant on Civil and Political Rights.

1.

The Working Group on Arbitrary Detention was established by resolution 1991/42

of the former Commission on Human Rights. The mandate of the Working Group was

clarified and extended in resolution 1997/50. The Human Rights Council assumed the

mandate in its decision 2006/102 and extended it for a three-year period in its resolution

15/18 of 30 September 2010. In accordance with its methods of work (A/HRC/16/47,

annex), the Working Group transmitted the above-mentioned communication to the

Government.

2.

The Working Group regards deprivation of liberty as arbitrary in the following

cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or

her sentence or despite an amnesty law applicable to him or her) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,

25, 26 and 27 of the International Covenant on Civil and Political Rights (category II);

(c)

When the total or partial non-observance of the international norms relating

to the right to a fair trial, established in the Universal Declaration of Human Rights and in

the relevant international instruments accepted by the State concerned, is of such gravity as

to give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or

remedy (category IV);

United Nations

A/HRC/WGAD/2012/69

General Assembly

Distr.: General

19 February 2013

English

Original: Spanish

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(e)

When the deprivation of liberty constitutes a violation of international law for

reasons of discrimination based on birth; national, ethnic or social origin; language;

religion; economic condition; political or other opinion; gender; sexual orientation; or

disability or other status, and which aims towards or can result in ignoring the equality of

human rights (category V).

Submissions

Communication from the source

3.

Mr. Alan Phillip Gross, born on 2 May 1949 in New York, a citizen of the United

States of America, married to Mrs. Judy Gross, father to two daughters, specialist in

international development and resident in Washington, D.C., was arrested on 3 December

2009 at a hotel in Havana, by agents from the Ministry of the Interior. His arrest was

ordered by the Provincial People’s Court in Havana.

4.

The source reports that Mr. Gross studied as an undergraduate at the University of

Maryland and obtained a master’s degree in social work from the Virginia Commonwealth

University. As a specialist in international development, Mr. Gross has carried out

development activities and community work in around 50 countries and territories. In 2001,

he founded the Joint Business Development Center with the aim of establishing Internet

connectivity in locations where there is little or no access to the Internet. He had no

problems with the law in any country where he worked.

5.

On 10 February 2009, the Joint Business Development Center was subcontracted by

Development Alternatives Inc. to implement, with the United States Agency for

International Development (USAID), a project called “Para La Isla”. The aim of the

project was to facilitate the establishment of wireless Internet and intranet connections for

the small Jewish community in Cuba.

6.

To implement the project, Mr. Gross brought a range of computer equipment to

Cuba from the United States; the equipment included Apple computers, BGAN satellite

terminals (Hughes Model 9201 Broadband Global Area Network), Linksys routers,

Blackberry cell phones, Apple iPod portable media players, web cameras, wireless

transmitters, a modem, hard drives, and the corresponding cables and battery chargers.

7.

Mr. Gross made five trips to Cuba. The first trip took place from 30 March to 6

April 2009. Later trips began on 25 April, 4 June, 22 July and 24 November 2009. In

accordance with the terms of the contract, he wrote a report after each trip except for the

fifth, owing to his arrest. Mr. Gross set up wireless Internet connections for the small

Jewish communities in Camagüey, Havana and Santiago de Cuba. The source says that

these communities are strictly religious, apolitical, pacifist and non-dissident.

8.

Following his arrest, Mr. Gross was transferred to Villa Marista Prison in Havana

and then to the Carlos J. Finlay Military Hospital in the same city, where he was placed in a

maximum security unit. After being held in detention for 14 months, he was accused of

committing “acts against the independence or territorial integrity of the State”, engaging in

“a subversive project to overthrow the revolution” and violating article 91 of the Criminal

Code.

9.

Mr. Gross’s trial began on 4 March 2011 in the Provincial People’s Court in Havana

before a panel of four judges. The trial lasted only two days. On 11 March 2011, the court

found him guilty and sentenced him to 15 years in prison.

10.

Mr. Gross filed an appeal, which was rejected by the Supreme Court on 4 August

2011. The Supreme Court stated that the programme launched by Development

Alternatives Inc. was sponsored by USAID, “a body working to overthrow the socialist

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revolution and to establish the capitalist system in Cuba, by financing and funding a wide

range of organizations and centres acting against Cuba”.

11.

The source adds that, since his imprisonment, Mr. Gross’s health has seriously

deteriorated. He is suffering from degenerative arthritis, which is aggravated by the fact that

he is not allowed to walk around inside his cell, and a tumour has appeared behind his right

shoulder. Mr. Gross has lost over 47 kg in weight during his imprisonment. He is also

suffering mental anguish, owing to the fact that he cannot attend to the health problems of

his mother and eldest daughter, who have been diagnosed with cancer, or the financial

needs of his wife, for whom he is the sole provider.

12.

According to the source, Mr. Gross’s detention is arbitrary, as his activities were

aimed at promoting and facilitating freedom of expression. Article 91 of the Criminal Code

cannot be taken to override article 19, paragraphs 2 and 3, of the International Covenant on

Civil and Political Rights. Mr. Gross’s actions in Cuba were aimed at increasing access of

members of the Jewish community of Cuba to information of their choice through wireless

Internet connections. He was trying to help Cuban citizens exercise their right to freedom of

information and expression, in accordance with article 19 of the Universal Declaration of

Human Rights, article 19 of the International Covenant on Civil and Political Rights, to

which Cuba is a signatory, and article 53 of the Constitution of Cuba.

13.

The source also claims that during Mr. Gross’s trial the Cuban authorities did not

observe the international norms and principles of due process. The trial of Mr. Gross was

not impartial. According to the source, the Cuban courts are not independent of the

executive. The judgements in the case of Mr. Gross merely reproduced the statements and

declarations of the executive; for example, they referred to the 1996 Helms-Burton Act and

the Torricelli Amendment of the United States. According to the judgement, Mr. Gross’s

activities were part of a US$ 65 million worldwide programme aimed at promoting the

transition to democracy in Cuba. The source considers that the conviction of Mr. Gross

reveals more interest in the country he comes from and in the sources of funding for his

project than in the specific actions he carried out.

14.

During the judicial proceedings, the principle of the presumption of innocence was

not respected. Nor could any evidence be produced to prove the accusations of subversion.

The only thing that could be proved was that Mr. Gross had imported information and

communications technology from the United States in order to facilitate Internet access for

members of the Jewish community in Cuba. Mr. Gross’s only offences, according to the

source, were to be a United States citizen and to work for a subcontractor of the

Government of the United States.

15.

The source considers that although Cuba is not a party to the International Covenant

on Civil and Political Rights, as a signatory to the Covenant it is obliged to refrain from

acts which would defeat the object and purpose of the treaty, as provided for in article 18 of

the Vienna Convention on the Law of Treaties.

16.

The source expresses its concern for the life and health of Mr. Gross. It reports that

he has written to the President of the Council of State and Ministers of Cuba on various

occasions, appealing for permission on humanitarian grounds to visit his sick relatives, but

has received no reply.

17.

In the source’s opinion, Mr. Gross’s actions cannot be interpreted as a threat to the

sovereignty, independence, security or territorial integrity of Cuba, or to its socialist

system. His only interest was in fulfilling a contract to facilitate access to information by

members of the Jewish community in Cuba through a wireless Internet connection. At his

trial, the prosecution could not prove that his activities in Cuba had counter-revolutionary

ends or were clandestine or conspiratorial in nature, as they were described in the

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judgement. The source therefore requests that Mr. Gross’s full rights be restored, starting

with his immediate release.

Response from the Government

18.

The Government sent a full, detailed reply giving all the background the Working

Group needed to adopt an opinion, which is appreciated. The Government denies the

arbitrary nature of Mr. Gross’s detention. It maintains that he was tried and convicted for

clandestinely bringing into Cuba undeclared communications equipment — some for

military use — to implement United States programmes in Cuba, with funding from the

United States Government. Mr. Gross was tried and convicted for crimes under Cuban law.

It maintains that it is common for United States citizens to be sent abroad to set up illegal

communication systems to destabilize Governments.

19.

The Government maintains that Mr. Gross was tried in accordance with Cuban law

and with all procedural safeguards. It adds that it is not true that Mr. Gross’s activity was

intended to provide technical communications assistance to the small Jewish community on

the island; in fact it was aimed at subverting public order in an effort to overthrow the

Government chosen by the people. It was clear that Mr. Gross knew about the plans of the

Government of the United States for Cuba, which USAID had been implementing since

2008.

20.

The Government states that Mr. Gross’s activities were part of the programmes

designed under the Helms-Burton Act and the Torricelli Amendment and other programmes

sponsored by the United States Government such as “Democracy for Cuba”. These

programmes and the activities carried out by Mr. Gross were aimed at undermining State

control and the legal channels of communication.

21.

In its reply, the Government of Cuba gives examples of the activities carried out by

Mr. Gross and what he hoped to achieve by them, and reports that he entered Cuba many

times as a tourist, which was incompatible with these activities.

22.

The Government denies that Mr. Gross was detained in a high-security prison, and

lists the prisons in which he was held. It stresses that the Government of the United States

was regularly informed about the substantive aspects of the judicial proceedings, through

the relevant diplomatic channels.

23.

The Government of Cuba reports that Mr. Gross was detained on 3 December 2009

and was accused of offences against State security, and that he was informed, in Spanish

and English, of the charges against him, which are classed in Cuban legislation as acts

against the independence or territorial integrity of the State, as defined in article 91 of the

Criminal Code. It adds that all the rights provided for under Cuban law for persons standing

trial were respected, in conformity with public international law.

24.

In this respect, it stresses that Mr. Gross always had an interpreter and legal

assistance from a lawyer hired by his family. He had access to all the evidence in the

investigation and could present evidence of his own. Members of his family, North

American lawyers and consular officials from the United States were present at the trial,

which was open to the public.

25.

The Government points out that the court which tried him was a completely

independent and impartial collegial court. The accused had the right to appeal against his

conviction to the People’s Supreme Court. He had the same rights in that court as any other

person on trial; he was able to speak in his own defence and, the last time he spoke, had

actually thanked the judges for giving him the opportunity to explain his position. The

judgement of the lower court was upheld.

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26.

The Government maintains that it respected the principle of the presumption of

innocence and that the evidence was submitted and examined in accordance with the law;

the burden of proof fell on the Public Prosecution Service.

27.

The Government denies that Mr. Gross’s prison conditions are bad; it draws

attention to the medical care he receives, and reports that he is detained in a fully equipped

military facility. He has received visits from important political figures, including the

former president of the United States, Jimmy Carter, and the president of the Dominican

Republic, Leonel Fernández, as well as representatives of the Jewish communities of the

United States and Cuba.

28.

The Government states that the allegation that the arrest warrant came from the

Provincial People’s Court in Havana is false; it came from the public prosecutor.

Comments from the source

29.

In its comments on the Government’s reply, the source maintains that that reply is

more a criticism of United States policy towards Cuba than a rebuttal of the allegations

cited in the original communication. It claims that Mr. Gross’s activities were carried out in

exercise of the rights fully enshrined in article 19 of the Universal Declaration of Human

Rights and article 19 of the International Covenant on Civil and Political Rights. Those

activities were strictly limited to facilitating Internet access by members of the Jewish

community in Cuba, thereby enabling them to exercise their right to receive and impart

information. The fact that Mr. Gross may have been subcontracted by a United States

Government agency is not relevant to the case.

30.

In respect of the judicial proceedings, the source reiterates that there were numerous

violations of due process, citing the following: (a) the pretrial detention of Mr. Gross lasted

14 months; (b) the court which tried him was not independent and impartial and sentenced

him to 15 years in prison after a trial lasting barely two days; (c) Mr. Gross was convicted

under a national security law that is excessively broad and vague in its terms and definitions

and that has been repeatedly used against politicians, dissidents, journalists, human rights

defenders and many others whose legitimate activities were considered a threat by the

Cuban Government.

31.

The source claims that the Government’s reply contains inaccuracies and numerous

statements that contradict the evidence. The Government’s reply makes several references

to events and situations which are not mentioned in the court judgement and which the

source considers to be outside the Working Group’s mandate. According to the source, the

court judgement shows that the Government itself was previously informed of Mr. Gross’s

activities and the fact that he was working to facilitate Internet access for members of the

Jewish community. This is an entirely legitimate action under article 19 of the Declaration

and article 19 of the Covenant.

32.

Mr. Gross was held for 14 months while awaiting trial and spent 16 months in

detention before being sentenced, which indicates that the trial did not take place within a

reasonable time, and no bail was granted during the proceedings. While the source

acknowledges that what constitutes a “reasonable time” is not very clear, the above-

mentioned period of time can be considered long in light of the jurisprudence of the

Working Group and the Human Rights Committee.

33.

The source maintains that article 107 of the Code of Criminal Procedure stipulates

that investigations must be conducted within a period not exceeding 60 days, which may be

extended to 180 days at the request of the prosecutor. In Mr. Gross’s case, no special

request was submitted by the prosecutor and it was never mentioned that the case involved

special circumstances. The long period of pretrial detention was therefore also irregular

under Cuban law.

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34.

Mr. Gross was sentenced under article 91 of the Criminal Code for acts against the

independence or territorial integrity of the State. This article establishes prison sentences of

up to 20 years and even the death penalty for any person who, in the interest of a foreign

State, performs an act aimed at undermining the independence or territorial integrity of the

State. This article has been widely flagged by leading human rights groups as being the

main provision used to shut down dissent in Cuba. The source recalls that the jurisprudence

of the Working Group includes cases in which the Working Group considered the detention

of persons sentenced under this provision to be arbitrary and even considered that by

applying the provision the State had violated its obligations under international norms.

35.

The view expressed in the communication that the judiciary in Cuba is neither

independent nor impartial is shared, according to the source, by the Inter-American

Commission on Human Rights. The latter has noted that the courts are subordinate to the

Council of State, which is chaired by the Head of State; this implies that the judiciary is

dependent on the executive, which undermines the guarantees of due process and the

enjoyment of human rights.

36.

In the case of Mr. Gross, the observations made by the court and the appeals court

illustrate that his trial was not independent and impartial. In fact, according to the source,

the courts’ views reflect the public political statements of the executive branch of the

Cuban Government on United States policies. In the source’s opinion, Mr. Gross was found

guilty simply because he is a citizen of the United States who worked for a subcontractor of

the Government of that country. The Cuban Government (as reflected in the court’s

decision) simply made a number of closing statements on Mr. Gross’s alleged crimes but

did not present any evidence to substantiate its accusations of subversion. As the court did

not respect the principle of the presumption of innocence, the source concludes that the

judgement constitutes a direct violation of article 14, paragraph 2, of the International

Covenant on Civil and Political Rights.

37.

As indicated in the original communication, Mr. Gross is now being held in a

military hospital. However, he is not in good health and has in fact lost over 47 kg in

weight. A radiologist who carried out an independent examination of a tumour on his back

concluded: “It is my opinion that Mr. Gross has a life-threatening medical condition which

has not been properly assessed in accordance with modern medical standards.”

38.

In addition, the source refutes the Government’s claim that Mr. Gross is also

responsible for other offences of which he has never been accused, tried or sentenced. The

Government claims that: (a) Mr. Gross “evaded the regulatory and legal framework of the

country’s telecommunication system … in such a way that these communications could not

be monitored by the Cuban authorities”; (b) Mr. Gross “smuggled in equipment, including

some devices that were ‘for military use’”; (c) by entering Cuba on a tourist visa, Mr. Gross

violated Cuban laws; (d) third parties imported some equipment for Mr. Gross, which he

failed to say belonged to him.

39.

According to the source, on all occasions, customs officials inspected the equipment

that Mr. Gross imported and authorized entry after inspecting them. No one has been

accused, tried or sentenced for doing this.

Discussion

40.

The Working Group has repeatedly maintained in its opinions that it does not

constitute a level of jurisdiction in addition to those established by the domestic law of a

country to resolve a dispute involving the deprivation of liberty of a person. Its mandate is

to give an opinion as to whether or not the detention is arbitrary. In order to do that, it must

examine whether the guarantees for a fair trial and due process have been respected.

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41.

Thus, in its Opinion No. 33/2010 (Mexico) concerning the detention of Mr. Raúl

Hernández Abundio, the Working Group repeated its statement in Opinion No. 25/2008

(Mexico) concerning the detention of Mr. Olivier Acuña Barba that “it is not competent to

assess whether the indictment — or the unappealable judgement — in a trial for ordinary

offences (and not for an offence in which the act denounced consists in the exercise of one

of the rights belonging to category II of the rights considered by the Working Group) fit the

evidence in the file. It would be competent if the court had refused to admit evidence put

forward by the accused, making the detention potentially arbitrary according to category

III” (A/HRC/WGAD/2010/33, para. 11).

42.

The Working Group is faced with the same circumstances in this case: it is not part

of the Working Group’s mandate to assess whether the act of importing technical

communications and computer equipment into Cuba from the United States to enable

wireless Internet access is an act in exercise of the human right to freedom of opinion and

expression insofar as it refers to the right to receive and impart information or whether, on

the contrary, it implies the commission or preparation of a crime, including that of

subversion. It is not the Working Group’s task to consider whether or not it has been proved

that an offence was committed and/or counter-revolutionary statements made. Category II

in this case must therefore be discounted.

43.

The Working Group is, however, competent to analyse whether the person received

a fair and impartial trial before an independent court. The detention would be arbitrary if

the court had rejected evidence for the defence or admitted illegal evidence.

44.

To determine whether the present case falls under category III, the Working Group

first notes that neither the Government nor the source dispute that Mr. Gross generally

enjoyed his procedural rights, such as the rights to submit evidence, cross-examine

prosecution witnesses, bring witnesses for the defence, be assisted by a defence lawyer of

his own choosing, have sufficient time to prepare his defence, have access to interpreters,

and speak freely. In addition, the trial was public and attended by observers from his

country and by relatives and friends, among others.

45.

Furthermore, the Working Group notes that there is no disagreement on a number of

the objective facts of the case. Both the source and the Government accept, for example,

that Mr. Gross was in Cuba to work on a United States Government agency project called

Para la Isla; that he worked under contract to the company Development Alternatives Inc.

to implement a project jointly with USAID; that the import of equipment to facilitate

wireless Internet connections was legal; that Mr. Gross made five trips to Cuba as a tourist,

always on his United States passport, and that he had connections with Jewish communities

in Cuba.

46.

However, the two parties differ markedly on whether or not the courts that tried Mr.

Gross and heard his appeal were independent and impartial.

47.

To resolve this issue as objectively as possible, the Working Group recalls the

following:

(a)

In 2000, the Special Rapporteur on violence against women, its causes and

consequences, noted with concern that the National Assembly of People’s Power had the

authority to appoint and dismiss the members of the People’s Supreme Court, the Attorney-

General and the deputy attorneys general; that the Office of the Attorney-General was

subordinate to the National Assembly and the Council of State; and that the Attorney-

General was accountable to the National Assembly. Such provisions impeded the

impartiality and independence of the judiciary (E/CN.4/2000/68/Add.2, para. 67). The

Government of Cuba, emphasizing that the people had chosen the socialist political system,

completely rejected this claim, which it considered was fabricated by malicious sources or

based on fundamentalist ideological attitudes (E/CN.4/2000/131, p. 9);

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(b)

In 1997, the Committee against Torture recommended a revision of the rules

on the organization of the judicial system to bring them into line with international norms

(A/53/44, para. 118);

(c)

In 2007, the Special Rapporteur on the independence of judges and lawyers

reminded Cuba that, according to international standards, military tribunals should not, in

principle, try civilians (A/HRC/8/4/Add.1, para. 110);

(d)

The Personal Representative of the United Nations High Commissioner for

Human Rights recommended that Cuba bring the rules of criminal procedure into line with

the requirements of articles 10 and 11 of the Universal Declaration of Human Rights

(A/HRC/4/12, para. 35; E/CN.4/2006/33, para. 35; E/CN.4/2005/33, para. 36;

E/CN.4/2004/32, para. 35);

(e)

According to the Special Rapporteur on the right to food, access to justice in

relation to the right to food needs to be improved. The courts should be mandated to deal

with human rights violations, including violations of the right to food, and an independent

institution charged with receiving and processing complaints and providing remedies for

violations should be established (A/HRC/7/5/Add.3, para. 79 (c)). In response to that

recommendation, Cuba clarified that its inter-agency system deals with such complaints

(A/HRC/7/G/5, para. 23).

48.

The aforementioned points are taken from the reports of special procedures set up by

the former Commission on Human Rights and the current Human Rights Council, as well

as from the reports of treaty bodies. The list was compiled by the Office of the United

Nations High Commissioner for Human Rights for the Working Group on the Universal

Periodic Review (A/HRC/WG.6/4/CUB/2). These reports were considered in due course by

the bodies which set up the above-mentioned procedures and treaty bodies, and which

expressed no reservations or objections about them. The Working Group therefore cannot

dismiss them.

49.

In view of these precedents, the Working Group cannot rule out the possibility that

the courts of first and second instance that heard Mr. Gross’s case did not carry out their

judicial function independently and impartially.

50.

The Working Group must also consider whether the part of the Criminal Code that

deals with offences against State security, and more specifically, article 91, meets the

requirements of certainty and precision needed for a penalty to be imposed. According to

criminal law doctrine, the illicit conduct must be fully defined before the offence is

committed, in accordance with article 11 of the Universal Declaration of Human Rights.

The definition must, moreover, be precise, in order to ensure that the potential criminal

knows the difference between what is and what is not a crime. The definition of an offence

must cover all elements needed for this purpose.

51.

The Working Group takes the view that the definition of a punishable act in article

91 of the Cuban Criminal Code is not sufficiently precise to ensure that the offender knows

exactly what conduct is prohibited. Article 91, which is included among “acts against the

independence and territorial integrity of the State”, in the section on offences against State

security, provides as follows: “Anyone who, in the interest of a foreign State, performs an

act intended to be detrimental to the independence of the Cuban State or the integrity of its

territory, shall be liable to a penalty of 10 to 20 years’ imprisonment or death”. The

vagueness of concepts like “performs an act”, “in the interest of a foreign State” and

“detrimental to the independence of the Cuban State or the integrity of its territory” means

that this provision fails to meet the requirement to provide a rigorous description of what

constitutes punishable conduct.

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52.

The Working Group must also consider whether there were violations of judicial

procedure, such as an excessive period of pretrial detention. Under public international law,

pretrial detention should be the exception, not the rule. Generally speaking, the Working

Group has considered this rule to be of the utmost importance and the best indicator of

respect for the principle of the presumption of innocence. The court, in the opinion of the

Working Group, should have granted Mr. Gross bail, without prejudice to the guarantees

necessary to ensure his appearance in court. Mr. Gross was held for 14 months while

awaiting trial when he could have been on bail.

53.

On 11 March 2011, Mr. Gross was sentenced to 15 years in prison following a trial

lasting barely two days. The short duration of the trial — only two days — does not

constitute a human rights violation per se, unless during this time the accused was denied

the possibility of presenting evidence or having it examined, or denied access to evidence

for the prosecution, or if there was malicious intent, but there were no complaints of such

things in the communication from the source. The concept of what constitutes a reasonable

time for bringing a case to trial always depends on whether there is a real possibility of

investigating the acts considered as a crime.

54.

According to the source, article 107 of the Cuban Criminal Procedure Act stipulates

that investigations must be completed within 60 days, which may be extended to 180 days

at the request of the prosecutor. In Mr. Gross’s case, no special request was submitted by

the prosecutor and there was no mention of there being special circumstances. The Working

Group is of the view that there has been no violation of a human right set out in the

Universal Declaration of Human Rights, as the evidence shows that the accused enjoyed the

right to a defence and had the necessary time to prepare his defence (seven days).

55.

The allegation that Mr. Gross was found guilty because of the mere fact that he is a

United States citizen working for a subcontractor of the Government of that country, which

would put the case into category V according to the working methods of the Working

Group, also does not seem to be justified by the communication from the source.

56.

In conclusion, the Working Group considers that the courts of first and second

instance which heard Mr. Gross’s case did not perform their functions independently and

impartially, and that article 91 of the Criminal Code does not satisfy the requirement for a

rigorous definition of punishable conduct, meaning that the detention was of an arbitrary

nature. The court should have granted Mr. Gross bail pending his trial instead of holding

him in detention for over 14 months.

Disposition

57.

In the light of the foregoing, the Working Group renders the following opinion:

(a)

The deprivation of liberty imposed on Mr. Alan Philip Gross by the Cuban

courts is arbitrary, for the reasons cited in paragraph 56 of this opinion, as it violates the

human rights recognized in articles 9, 10 and 11 of the Universal Declaration of Human

Rights; and falls under category III of the categories applicable to the consideration of the

cases submitted to the Working Group;

(b)

The Working Group considers that the allegation of a violation of the human

right to freedom of expression has not been duly substantiated. Nor does it accept the

validity of the source’s arguments regarding the duration of pretrial detention or the total

duration of the trial;

(c)

Accordingly, the Working Group requests that the Government of Cuba

immediately release Mr. Alan Phillip Gross;

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(d)

The Working Group also recommends that the State consider amending the

Criminal Code to define offences and describe criminal conduct precisely and

unequivocally;

(e)

The Working Group also recommends that the Government consider

becoming a State party to the International Covenant on Civil and Political Rights.

[Adopted on 23 November 2012]