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.17-11404 (E) 020817 030817
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its seventy-eighth session, 19-28 April 2017
Opinion No. 12/2017 concerning Danilo Maldonado Machado (Cuba)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights, which extended and clarified the Working Group’s
mandate in its resolution 1997/50. Pursuant to General Assembly resolution 60/251 and
Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The mandate of the Working Group was most recently extended for a three-
year period in Council resolution 33/30 of 30 September 2016.
2.
In accordance with its methods of work (A/HRC/33/66), on 17 January 2017 the
Working Group transmitted to the Government of Cuba a communication concerning
Danilo Maldonado Machado. The Government replied to the communication on 10 March
2017. The State is not a party to the International Covenant on Civil and Political Rights.
3.
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 Covenant (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 States 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);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation,
disability, or any other status, that aims towards or can result in ignoring the equality of
human beings (category V).
United Nations
A/HRC/WGAD/2017/12
General Assembly
Distr.: General
7 July 2017
English
Original: Spanish
A/HRC/WGAD/2017/12
2
GE.17-11404
Submissions
Communication from the source
4.
Danilo Maldonado Machado, also known by his artist’s name “El Sexto”, born on 1
April 1983, is a Cuban national resident in Havana. He is a visual artist, graffiti artist,
human rights and democracy activist and promoter of the Cuba Decide initiative.
5.
The source notes that Mr. Maldonado’s artistic works, together with his form of
activism, have made him a well-known dissident. In December 2014, Mr. Maldonado was
arrested while on his way to stage a work of art entitled Rebelión en la granja (“Animal
Farm”). He was unofficially accused of “disrespecting the leaders of the revolution” and,
without being charged, was sent to prison, where he remained awaiting trial for more than
10 months, until his release in October 2015.
6.
In May 2015, Mr. Maldonado was awarded the Václav Havel International Prize for
Creative Dissent. In September of the same year, Amnesty International declared Mr.
Maldonado a “prisoner of conscience” who had been arrested for peacefully exercising his
right to freedom of expression.
7.
According to the source, Mr. Maldonado was arrested at his home in Havana at
11.15 a.m. on 26 November 2016. It is alleged that Mr. Maldonado’s arrest was violent and
that State agents gave him a brutal beating, which caused him to have a severe asthma
attack. The source also maintains that the State agents did not show any arrest warrant at
the time of the arrest or thereafter. Mr. Maldonado was not informed of the reason for his
arrest, nor of any outstanding charges against him. His mobile phone was confiscated when
he was placed in detention.
8.
The source describes the arrest operation carried out by agents of the State Security
Department, which reports to the Ministry of the Interior. He claims that the State Security
Department is not an independent authority, but one that answers directly to the intelligence
services, which are often behind the arrest of members of civil society who seek to publicly
and non-violently oppose the regime.
9.
The source explains that Mr. Maldonado was detained because he is a prominent
dissident artist whose criticism of the Government reaches a worldwide audience. The
source says that Mr. Maldonado was arrested primarily to prevent him from protesting
against the regime during the nine-day period of mourning imposed after the death of Fidel
Castro. Mr. Maldonado was the first activist to be detained as a result of operations initiated
by the State Security Department following the death of Fidel Castro.
10.
Mr. Maldonado’s arrest took place after he published a video on Facebook
commenting on the death of Fidel Castro, and after he spray-painted the words “se fue”
[“he’s gone”] on one of the walls of the Habana Libre hotel.
11.
According to the source, since his arrest on 26 November 2016, Mr. Maldonado has
been transferred several times to different prisons and detention facilities of the National
Revolutionary Police. Mr. Maldonado was detained initially at the San Agustín police
station, in the municipality of La Lisa, Havana. He was then transferred to Villa Marista, a
prison in Havana that often houses political prisoners. After that, he was transferred to a
police station in the municipality of Guanabacoa, and then another police station in the
municipality of Vedado, Havana, located at the intersection of Zapata and C. He was
subsequently transferred to the prison of El Vivac, on the outskirts of Havana and, on 7
December 2016, to another prison in Havana, Valle Grande, where he had previously been
detained for more than 10 months until his release in October 2015. Until 21 January 2017,
Mr. Maldonado was detained in Combinado del Este, a detention centre also located in
Havana.
12.
According to the source, during his time in detention, Mr. Maldonado was never
shown an arrest warrant and no formal charges were brought against him. On 5 December
2016, the State agents unofficially informed his family that he would be detained for at
least 60 more days “pending the investigation of his case by the prosecutor”. As of 6
December 2016, he was not allowed to make or receive telephone calls. Only his mother
was allowed to visit him, subject to the approval of State agents. Mr. Maldonado was held
A/HRC/WGAD/2017/12
GE.17-11404
3
in isolation from 9 to 12 December 2016, during which time he was kept naked and not
given any food.
13.
The source claims that the official reason for Mr. Maldonado’s arrest was not known
until 9 December 2016 — 14 days after his arrest — when a decision was issued rejecting
an application for a writ of habeas corpus submitted by his family on Monday, 5 December
2016. According to the court decision, Mr. Maldonado was arrested for “destruction of
property”, an offence which, according to the source, is punishable by a fine under Cuban
law, not imprisonment.
14.
The source says it is thought that during Mr. Maldonado’s imprisonment, State
officials tried to silence him further by putting sedatives in his food. After experiencing
severe drowsiness, and fearing for his physical and mental health, Mr. Maldonado stopped
eating the food he was given, eating only when State agents allowed his mother to bring
him food from outside. It is claimed that this is why Mr. Maldonado quickly lost weight
during his detention and is now so physically debilitated.
15.
The source maintains that Mr. Maldonado’s condition in prison deteriorated from
the time of his arrest, including during his solitary confinement and as a result of being
subjected to inhuman and degrading treatment, to the point where there was a serious risk
to his physical and psychological health and to his life.
16.
The source concludes that Mr. Maldonado’s detention constitutes arbitrary
deprivation of his liberty under categories II and III. According to the source, Mr.
Maldonado’s detention is arbitrary under category II because the State deprived him of
liberty for exercising his right to freedom of opinion and expression, in breach of its
international obligation under article 19 of the Universal Declaration of Human Rights. In
this context, the source submits that Mr. Maldonado’s arrest and detention are based solely
on his activism, which includes the expression of opinions critical of the regime, the
defence of victims of human rights violations and calling for democratization in Cuba. The
source explains that, over the past three years, Mr. Maldonado has been the subject of
repression at the hands of the Government, including through constant harassment, arrests
and threats of prosecution.
17.
The source alleges that Mr. Maldonado’s detention is also arbitrary under category
III, as he was deprived of his liberty for a prolonged period without formal charges being
brought against him. This represents a violation of, or total disregard for, the international
norms relating to the right to a fair trial by the Government, as set forth in 10 and 11 of the
Universal Declaration of Human Rights. The source explains that the State has denied Mr.
Maldonado the right to a fair trial and an impartial investigation, both in the past and in the
present case. To date, the State has not complied with the minimum international standards
of due process guaranteed by the Universal Declaration of Human Rights. Mr. Maldonado
was never shown an arrest warrant; he was not informed of the reason for his arrest until
long after the arrest, nor of the charges against him; and to date he has not been brought
before a competent and independent authority to determine whether he should remain in
prison or even whether his arrest and detention should ever have taken place.
18.
The source adds that the violent arrest of Mr. Maldonado, the attempt by State
agents to sedate him to keep him silent and his detention in solitary confinement without
food or clothing constitute cruel, inhuman and degrading treatment, as provided for in
article 5 of the Universal Declaration of Human Rights and principle 1 of the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
His arrest without a warrant and his continued detention without charge violate principles
10 to 13 of the Body of Principles.
19.
Mr. Maldonado was prohibited from having any contact with his family or lawyer.
Members of his family had to ask repeatedly about his whereabouts until they found him on
the afternoon of the day of his arrest. State agents moved Mr. Maldonado several times to
different prisons and detention facilities of the National Revolutionary Police in various
municipalities of Havana, often without giving him any explanation or allowing him to
notify his family. The source argues that these acts by the State constitute a violation of
principles 15 and 16.
A/HRC/WGAD/2017/12
4
GE.17-11404
Response from the Government
20.
On 17 January 2017, the Working Group transmitted the allegations from the source
to the Government under its standard procedure. The Working Group requested the
Government to provide detailed information on the circumstances of Mr. Maldonado’s
arrest and his current situation by 17 March 2017. The Working Group further requested
the Government to clarify the legal basis for his detention, as well as details on the
conformity of this deprivation of liberty with international human rights law. The
Government transmitted its response to the Working Group on 10 March 2017.
21.
In its reply, the Government provided information on the nature of Mr. Maldonado’s
activities, stating that he has not carried out any recognized artistic activity in the country,
and that he is not affiliated to any cultural association or institution in Cuba. The
Government noted that Mr. Maldonado cannot be described as a human rights defender, as
his actions have been directed at violating the existing legal order, not to promoting and
striving for the protection and realization of human rights.
22.
According to the Government, Mr. Maldonado carries out such actions with the
support and financing of United States organizations, which actively work to destroy the
constitutional order freely chosen by the overwhelming majority of Cubans. The
Government points out that Mr. Maldonado’s criminal record includes several offences
under ordinary law, including disorderly conduct and robbery with violence, for which he
served a 6-year custodial sentence. In addition, other allegations have been made against
him by his ex-wife and mother of his daughter for failing to pay child support and for
bodily harm and threatening behaviour.
23.
The Government notes that, because of his antisocial behaviour, Mr. Maldonado was
unable to complete his studies at Florida International University in 2014, when he was
expelled for repeated disciplinary problems, including drug use.
24.
In the Government’s view, the allegations made by the source in its submission, that
Mr. Maldonado’s detention was politically motivated, are false and malicious. Mr.
Maldonado’s detention on 26 November 2016 was not for acts of protest, but for damaging
the facade of a symbolic and central hotel in Havana.
25.
The Government indicates that these events gave rise to complaint No. 72239/16, for
the offence of damage to property, as established in article 339 of the Criminal Code
(preliminary investigation No. 5 -235/2016).
26.
The Government notes that the detention was carried out pursuant to an order issued
by a competent authority. There was no violence during the arrest, nor did anyone cause
him to have an asthma attack during detention. He was taken to the police station in the
municipality of La Lisa in Havana. His family was immediately informed of his detention.
It is not true that they had to ask repeatedly about his whereabouts.
27.
The Government stresses that there are computerized registers in all detention
centres in the country to record information on detainees. The Public Assistance and
Information System contains details of all detentions and makes it possible to ascertain the
whereabouts of any person detained in any part of the country. At the time of his detention,
a record was immediately prepared with the time, date and grounds for his arrest, as well as
other details of interest, as set out in the Criminal Procedure Act. The detention was
recorded in the appropriate register.
28.
The Government claims that the police officers involved did comply with the
obligation to inform him of the reasons for his arrest and his rights. This information is also
clearly displayed in detention facilities so that detainees may read it at any time. A medical
examination was conducted before he entered the cell and it was confirmed that he did not
present any health problems. On the night of 26 November 2016, several hours after his
arrest, he had difficulty breathing; this was related to the bronchial asthma he has had since
childhood and for which he is receiving medical treatment. He was transferred to a
polyclinic, where he was given all the necessary medical care.
29.
The Government points out that, during the investigation process, Mr. Maldonado
acknowledged that he had committed the acts, as well as his ties with terrorists and
A/HRC/WGAD/2017/12
GE.17-11404
5
organizations located abroad that are trying to destroy the political and social system in
Cuba and impose regime change against the will of the Cuban people.
30.
The Municipal Prosecutor’s Office in the municipality of Plaza de la Revolución,
where the offence took place, imposed the precautionary measure of pretrial detention,
based on the gravity of the acts and the damage caused to one of the city’s heritage sites, as
well as Mr. Maldonado’s criminal record. He was transferred to Combinado del Este prison
on 7 December 2016.
31.
The Government states that, on 5 December 2016, Mr. Maldonado’s mother filed a
habeas corpus procedure concerning her son. In accordance with the Criminal Procedure
Act, the First Criminal Division of the Provincial People’s Court of Havana examined the
investigation file and ascertained that Mr. Maldonado had been arrested under complaint
No. 72239/16 for the alleged offence of damage to property. The Court ascertained, based
on the elements in the file, that all the guarantees provided for in the Act for the processing
of such an application had been respected, and found that the person in respect of whom the
habeas corpus writ had been requested was subject to an interim measure in accordance
with the formalities and guarantees set out in the Criminal Procedure Act. Accordingly, it
rejected the application for the special habeas corpus procedure.
32.
On 14 December 2016, an appeal was filed against the decision of the First Criminal
Division of the Provincial People’s Court of Havana. On 28 December 2016, the Division
rejected the appeal, on the grounds that it had been established that Mr. Maldonado was
charged with the crime of damaging property and, accordingly, the acting prosecutor had
ordered the precautionary measure of pretrial detention.
33.
According to the Government, it is not true that Mr. Maldonado was prohibited from
contacting his lawyer. Neither Mr. Maldonado nor his relatives hired a lawyer for his
defence, even though the exercise of this right is guaranteed in Cuba. Lawyers may visit
and interview their clients with the necessary degree of privacy whenever they need to, by
prior arrangement with the head of the prison or detention facility, upon submission of the
corresponding legal services contract. The investigative authorities have at their disposal an
office with a computer and a telephone so that they can review the investigative actions set
out in the files of the preparatory stage.
34.
The Government also refutes the allegations that Mr. Maldonado was sent to a
solitary confinement cell, that he did not receive any visits and that he was left naked and
without food. It claims that, while he was in detention, he received eight family visits and
two conjugal visits from his partner. In addition, he made regular telephone calls. Meals
were guaranteed, as they are for all persons deprived of their liberty in Cuba.
35.
The Government rejects the allegations of cruel, inhuman or degrading treatment.
The Cuban revolution, which was profoundly humanist and ethical in nature, put an end to
that State policy. In their conduct, the Cuban authorities act with full respect for the
physical and moral integrity of individuals.
36.
Cuban law strictly prohibits subjecting persons deprived of their liberty to any kind
of ill-treatment, corporal punishment or cruel, inhuman or degrading treatment, as well as
using unlawful means of coercion or any type of measure that may cause physical or
psychological suffering or violate their human dignity.
37.
In Cuba, there is no room for impunity and there are no regulations or policies to
support it. There is the will to tackle and repress manifestations of the above-mentioned
phenomena, as well as the legal means to impose severe sanctions when acts are committed
that could correspond to the acts provided for in the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment.
38.
On 21 January 2017, the precautionary measure of pretrial detention of Mr.
Maldonado was modified and he received a fine, a sanction provided for in the Criminal
Code along with other custodial measures, for the offence of damage to property.
39.
It was also decided to provisionally discontinue (under articles 264 to 271 of the
Criminal Procedure Act) other proceedings against Mr. Maldonado under complaints nos.
18297/16 of 3 March 2016, for other acts contrary to the normal development of a child
A/HRC/WGAD/2017/12
6
GE.17-11404
(Criminal Code, art. 315); 22086/16 of 15 April 2016, for threatening behaviour (Criminal
Code, art. 284); and 24718/16 of 27 April 2016, for bodily injury (Criminal Code, art. 274).
40.
Lastly, the Government notes that Mr. Maldonado left Cuba on 27 January 2017 for
the United States.
41.
On 20 March 2017, the Working Group received a note verbale from the
Government updating the information it had provided on 10 March 2017. The Government
pointed out that it was not true that Mr. Maldonado had been prohibited from having
contact with his lawyer, as he had appointed defence counsel Lilian de la Caridad Cardet
Batista to represent him in the criminal proceedings against him. The lawyer appeared in
person in proceedings as from 22 December 2016, as she was entitled to do from the
moment when the precautionary measure of pretrial detention was ordered.
Comments from the source
42.
The Working Group forwarded to the source the responses provided by the
Government in notes nos. 102/2017 and 113/2017, dated 10 and 20 March 2017,
respectively. The source responded with comments on 27 March 2017.
43.
In this regard, the source notes that, for more than 30 years, the Government has
been repeatedly condemned by the Inter-American Commission on Human Rights of the
Organization of American States for implementing policies of harassment and persecution
against democracy activists, dissidents, civil society groups and human rights defenders.
44.
The source points out that the Inter-American Commission on Human Rights has
stated that “restrictions on political rights, on freedom of expression, and on the
dissemination of ideas, the failure to hold elections, and the absence of an independent
judiciary in Cuba combine to create a permanent panorama of breached basic rights for the
Cuban citizenry”.1
45.
The source claims that Mr. Maldonado’s intention in spraying the graffiti with the
message “he’s gone” on the day of Fidel Castro’s death was not to damage the facade of the
hotel in question, but rather, in the context of systemic censorship and repression of
dissidents and activists like him, to send a critical political message about the person who
had governed Cuba for 47 years. In the source’s view, in the absence of “legal” avenues for
dissent, walls and paint can be non-violent tools of expression and opposition.
46.
The source notes that, as a human rights activist in Cuba, Mr. Maldonado frequently
participates in peaceful demonstrations organized every Sunday by Las Damas de Blanco
(the “Ladies in White” group). Mr. Maldonado also engages in activism that seeks to
provoke a peaceful response from Cubans. For example, in December 2014, he was
arrested while on his way to stage an artistic performance entitled Rebelión en la Granja, in
reference to the George Orwell book Animal Farm. Mr. Maldonado was awarded the
Václav Havel International Prize for Creative Dissent in May 2015.2 His role as a human
rights activist has been recognized in numerous publications and the media.3
47.
The source notes that Mr. Maldonado’s lack of contact with the outside world for
much of his detention and the multiple times he was transferred without being able to notify
his family are referred to in the application for habeas corpus filed by his mother on 5
December 2016 to ascertain his whereabouts, as well as the appeal against the refusal of
habeas corpus lodged by his mother on 12 December 2016, in which she also complained
of a series of violations of due process under Cuban procedural law.
48.
In addition, with respect to the Government’s updated submission of 20 March
2017, the source claims that Mr. Maldonado’s family and friends experienced serious
1 Annual report of the Inter-American Commission on Human Rights, OEA/Ser.L/V/II.130 Doc. 22
rev.1, para. 154.
2 See https://oslofreedomforum.com/talks/2015-havel-prize-acceptance-speech-1.
3 See http://www.pbs.org/newshour/art/meet-el-sexto-the-performance-artist-pushing-for-free-speech-
in-cuba/ and http://www.elnuevoherald.com/noticias/mundo/america-latina/cuba-es/
article130441589.html.
A/HRC/WGAD/2017/12
GE.17-11404
7
difficulties in obtaining the legal representation of an independent defence counsel in view
of the restrictions on the exercise of that profession in Cuba. In this regard, it stresses that
the habeas corpus application and appeal were lodged by Mr. Maldonado’s mother, not by a
duly accredited lawyer. Similarly, the source notes that the Government acknowledged that
it was not until 22 December 2016, after the ruling on the habeas corpus appeal had been
handed down, that Mr. Maldonado had access to legal counsel, who was only given access
to the case file, which did not amount to the effective protection of the right to personal
liberty.
49.
The source reiterates that Mr. Maldonado’s arrest was violent, and involved insults
and blows. The source emphasizes that the Government has not denied that neither Mr.
Maldonado nor any lawyer who represented him was ever properly notified, in writing, of
the charges against him.
50.
Finally, the source indicates that when Mr. Maldonado was released on 21 January
2017, neither he, nor his lawyer nor his family received any document or notification or
explanation for his release. Mr. Maldonado and his family learned the reasons for his
release and the alleged “dismissal” of his case only on 13 March 2017, when they were
informed of the State’s reply to the Working Group.
Discussion
51.
The Working Group was informed of Mr. Maldonado’s release on 21 January 2017.
However, it will consider the matter in the present opinion in accordance with the rule set
out in paragraph 17 (a) of its methods of work.
52.
The Working Group is mandated to investigate all cases of deprivation of liberty
imposed arbitrarily that are brought to its attention. In the discharge of its mandate, it refers
to the relevant international standards set forth in the Universal Declaration of Human
Rights, as well as to the relevant international legal instruments, in accordance with its
working methods.
53.
The Working Group has in its jurisprudence established the ways in which it deals
with evidentiary issues. If the source has established a prima facie case for breach of
international requirements constituting arbitrary detention, the burden of proof should be
understood to rest upon the Government if it wishes to refute the allegations (see
A/HRC/19/57, para. 68).
54.
The Working Group acknowledges the Government’s willingness to cooperate with
this procedure of the Human Rights Council, as expressed in its official response to the
communication from the source. In addition, the Working Group notes that, although Cuba
has not ratified the International Covenant on Civil and Political Rights and is therefore not
a party to that instrument, it did sign the Covenant in 2008 and is therefore favourable to its
early ratification.
55.
Based on the information obtained, the Working Group notes that Mr. Maldonado,
born on 1 April 1983, is a visual artist, graffiti artist, human rights activist and advocate of
democracy in Cuba.
56.
The Working Group notes, by way of background information, that on 20 October
2015, together with other special procedures of the Human Rights Council, it transmitted a
communication to the Government concerning the deprivation of liberty of Mr. Maldonado
in a previous case (JAL CUB 3/2015 — not the one that is the subject of the present
opinion). The Government’s response to that communication was received by the Working
Group on 22 December 2015.
57.
Based on the submissions from the parties, the Working Group observes that Mr.
Maldonado was arrested at 11.15 a.m. on 26 November 2016 and that State agents did not
show any arrest warrant at the time of arrest or thereafter. According to the Government,
the arrest was made pursuant to an order issued by an appropriate authority, but it did not
substantiate that argument, nor did it provide any documentation to support it, such as a
copy of the order. In addition, the Working Group was unable to establish whether Mr.
Maldonado was informed, at the time of his arrest, of the legal grounds for his arrest or of
any outstanding charges. According to the information received, Mr. Maldonado was
A/HRC/WGAD/2017/12
8
GE.17-11404
officially informed of the charge against him some days after being released. Despite
having had the opportunity to do so, the Government failed to prove conclusively that
formal charges were brought against Mr. Maldonado during his time in detention. Nor did
the Government prove that Mr. Maldonado had effective access to a lawyer of his choice
from the time of his arrest. Based on the information available, the Working Group notes
that Mr. Maldonado was not provided with legal representation until 22 December 2016,
long after his arrest and after his relatives had already sought judicial remedies of habeas
corpus and appeal without adequate legal assistance.
58.
The Working Group recalls that, in accordance with applicable international law,
every person who is detained has the right to be informed of the reasons for his or her
detention at the time of arrest and of the charges against him or her without delay. This
means that, if the authorities were unable to inform the individual of the charges against
him or her, including the legal basis for them, at the time of the arrest because of, for
example, the circumstances in which the arrest was carried out, they must do so within a
few hours (see A/HRC/WGAD/2016/57, para. 107).
59.
The Working Group has emphasized in its jurisprudence that everyone has the right
to be informed clearly of the reason for his or her detention, as well as of the legal means
available to challenge the lawfulness of such detention.4
60.
The Working Group also recalls that all persons have the right to effective legal
assistance by counsel of their choice, at any time during their detention, including
immediately after being detained. The authorities have the obligation to inform the person
of that right from the time of his or her arrest.5
61.
The Working Group stresses that persons have the right to appear in person before a
court to challenge the lawfulness of their detention.6 Based on the information received, the
Working Group is not convinced that this right was guaranteed to Mr. Maldonado.
62.
In light of the foregoing, the Working Group finds that Mr. Maldonado’s detention
was arbitrary under category I, as the arrest was carried out without an official arrest
warrant and without the charges against him being presented, and that the State agents did
not justify or provide the legal basis for Mr. Maldonado’s deprivation of liberty at the time
of his arrest and transfer to detention. In addition, the Working Group considers that the
detention was arbitrary under category III, as he was not informed of the reasons for his
arrest at the time of arrest, he was detained without formal charges, he was not guaranteed
the right to be assisted by counsel of his choice from the time of his detention and he was
not brought before a court to challenge the detention order, which represents a violation by
the Government of international norms relating to the right to a fair trial, in accordance with
articles 10 and 11 of the Universal Declaration of Human Rights. The Working Group is
not convinced that Mr. Maldonado’s detention was a consequence of his exercise of the
rights and freedoms guaranteed by article 19 of the Universal Declaration of Human Rights,
in accordance with category II.
63.
Finally, in light of the allegations made by the source concerning the lack of judicial
independence, violations of freedom of expression and attacks on the rights of human rights
defenders, the Working Group decided to forward the information to the Special
Rapporteur on the independence of judges and lawyers, the Special Rapporteur on the
promotion and protection of the right to freedom of opinion and expression and the Special
Rapporteur on the situation of human rights defenders, for their information and possible
action.
Disposition
64.
In light of the foregoing, the Working Group renders the following opinion:
4 United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone
Deprived of Their Liberty to Bring Proceedings Before a Court (A/HRC/30/37), principle 7.
5 Ibid., principle 9.
6 Ibid., principle 11.
A/HRC/WGAD/2017/12
GE.17-11404
9
The deprivation of liberty of Danilo Maldonado Machado, being in contravention of
articles 3, 9 and 10 of the Universal Declaration of Human Rights, is arbitrary and
falls within categories I and III.
65.
The Working Group requests the Government of Cuba to take the steps necessary to
remedy the situation of Mr. Maldonado without delay and bring it into conformity with the
relevant international norms, including those set out in the Universal Declaration of Human
Rights.
66.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to accord Mr. Maldonado an enforceable right to
compensation and other reparations, in accordance with international law.
Follow-up procedure
67.
In accordance with paragraph 20 of its methods of work, the Working Group
requests the source and the Government to provide it with information on action taken in
follow-up to the recommendations made in the present opinion, including:
(a)
Whether compensation or other reparations have been made to Mr.
Maldonado;
(b)
Whether an investigation has been conducted into the violation of Mr.
Maldonado’s rights and, if so, the outcome of the investigation;
(c)
Whether any legislative amendments or changes in practice have been made
to harmonize the laws and practices of Cuba with its international obligations in line with
the present opinion;
(d)
Whether any other action has been taken to implement the present opinion.
68.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example, through a visit by the
Working Group.
69.
The Working Group requests the source and the Government to provide the above
information within six months of the date of the transmission of the present opinion.
However, the Working Group reserves the right to take its own action in follow-up to the
opinion if new concerns in relation to the case are brought to its attention. Such action
would enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as any failure to take action.
70.
The Working Group recalls that the Human Rights Council has encouraged all
States to cooperate with the Working Group and requested them to take account of its views
and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.7
[Adopted on 20 April 2017]
7 See Human Rights Council resolution 33/30, paras. 3 and 7.