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.19-01656 (E) 150319 180319
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eighty-third session, 19–23 November 2018
Opinion No. 66/2018 concerning Eduardo Cardet Concepción (Cuba)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution
60/251 and Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 33/30.
2.
In accordance with its methods of work (A/HRC/36/38), on 2 August 2018, the
Working Group transmitted to the Government of Cuba a communication concerning
Eduardo Cardet Concepción. The Government submitted a late reply to the communication
on 12 October 2018. 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/2018/66
General Assembly
Distr.: General
4 February 2019
English
Original: Spanish
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Submissions
Communication from the source
4.
Mr. Cardet Concepción is a Cuban citizen born in October 1968. He usually resides
in the province of Holguín, where he works as a family doctor in a health centre in Velasco.
He is married and has two young children. He is also a member and the national
coordinator of the Movimiento Cristiano Liberación (Christian Liberation Movement), an
association that advocates peaceful, democratic political change in Cuba. Mr. Cardet has
been arrested on several occasions because of his political activism.
5.
According to the information received, Mr. Cardet was arrested outside his home at
around 7 p.m. on 30 November 2016. It is reported that four plain-clothes State security
officers who did not identify themselves seized him violently, without explanation and
without producing an arrest warrant or informing him of any criminal charges against him.
He was taken to a local police station and beaten again.
6.
The source reports that the arrest took place two days after Mr. Cardet had given a
public interview abroad to an international media outlet in which he had made statements
criticizing the former President of Cuba, Fidel Castro, who had died a few days previously.
Prior to Mr. Cardet’s return to Cuba, members of his family were threatened, briefly
detained and told that he would be arrested upon his return on account of his political
activism and his participation in the “Un Cubano, Un Voto” (“One Cuban, One Vote”)
campaign. Mr. Cardet travelled back to Cuba on 29 November 2017.
7.
When Mr. Cardet’s family asked the authorities why he had been arrested, they were
told that it was because “he is a counter-revolutionary”. The following day, the security
forces went to his home and informed his family that he had been charged with attacking a
State official, under article 142 of the Criminal Code.
8.
The “official” reason for Mr. Cardet’s detention is allegedly that he attacked a police
officer while being arrested, an offence for which he was prosecuted and sentenced.
However, the source claims that this, in itself, cannot serve as a basis for the detention,
since the alleged offence occurred only once the arrest was already being made. Moreover,
given that the State security forces warned Mr. Cardet’s family prior to his arrest that they
intended to apprehend him on account of his political activities, the source considers that
the criminal charge is merely an after-the-fact justification for his trial and continued
detention, the aim of which is to prevent his activism.
9.
According to the source, Mr. Cardet was held incommunicado for nine days and
beaten while in custody. He was denied visits and telephone calls; his family was unaware
of his whereabouts. Despite the severe beatings to which he was subjected during his arrest,
once he had already been handcuffed and after arriving at the police station, Mr. Cardet,
who has asthma, was also refused medical care during the first seven days of his detention.
10.
After seven days, Mr. Cardet was examined by a surgeon, a general practitioner and
an orthopaedic specialist. According to the medical records, he had injuries to his eyes,
chest, abdomen, arms and legs, and bruising to his neck. When his family was allowed to
see him, more than a week after his arrest, his eyes were still puffy. His family filed a
complaint of violence. After their visit, Mr. Cardet was beaten again and placed in a
punishment cell. The State security forces also harassed and threatened his family and
prohibited Mr. Cardet’s wife from leaving the country.
11.
After nine days, Mr. Cardet was transferred to a pretrial detention facility in Holguín.
The authorities decided to remand him in custody until his trial. His applications for bail
were thrice denied, and the State prosecutor requested a punishment of 3 years’
imprisonment.
12.
According to the information provided, while in the facility in Holguín, the State
security officer who had beaten Mr. Cardet continued to abuse him verbally, telling him
that if he renounced his ideas, he would be freed immediately. A fellow inmate also
assaulted Mr. Cardet, whose request for a visit by a priest was refused. In March 2017, as
the date of his trial approached, Mr. Cardet contracted bronchitis, which left him needing
the necessary medication and an inhaler.
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13.
The trial took place on 3 March 2017. According to the source, it was not held in a
fair and impartial manner. The Attorney General’s Office called six witnesses, three of
whom had been among the State security officers who had arrested Mr. Cardet, while the
other three had not been present at the time. The defence lawyer argued that the witness
testimony from those who had not been present at the scene was not credible. For example,
they were unable to describe what Mr. Cardet had been wearing or what his bicycle looked
like, and stated that the incident had occurred during the day, when it had, in fact, been dark.
Moreover, the court permitted only three of the witnesses proposed by the defence to testify.
On 20 March 2017, Mr. Cardet was sentenced to 3 years’ imprisonment, as requested by
the prosecutor.
14.
The source reports that Mr. Cardet’s family lodged an appeal with the Provincial
Court that was rejected on 18 May 2017. In addition, a parole application was submitted,
but this was also denied, on the grounds that Mr. Cardet allegedly does not satisfy the
condition of being able to reintegrate into society because he has not yet understood the
seriousness of the consequences of his actions.
15.
According to the source, the State security forces continued to threaten and harass
Mr. Cardet after he had been convicted, telling him that his appeals were in vain, that his
sentence would be extended and that he would be sent to another province where he would
be unable to communicate with his family. He was threatened with solitary confinement
and pressured to renounce his convictions.
16.
On 19 December 2017, Mr. Cardet was transferred to the “Cuba Sí” maximum
security prison, where he is currently detained. His family was not informed of the transfer
until the day when it took place and was allowed to visit him only for a few minutes. That
same day, three inmates physically attacked Mr. Cardet when he entered the prison. His
family was not allowed to visit him until almost a month later, on 15 January 2018, when
two circular scars were apparent on his abdomen. Mr. Cardet stated that he had received no
medical attention since being attacked, and indicated that he was suffering from headaches
and dizziness. His family filed a complaint about the attack, but received no response.
17.
On 24 February 2018, the Inter-American Commission on Human Rights issued a
resolution (No. 16/2018) in which it found that Mr. Cardet is at risk of suffering irreparable
harm to his life and personal integrity in prison, given the lack of protection from the
attacks and harassment to which he has been subjected. The Commission requested the
State to adopt the necessary measures to protect the life and personal integrity of Mr.
Cardet and guarantee his access to appropriate medical treatment, in accordance with his
needs. Nevertheless, the source reports that, since Mr. Cardet’s transfer to the “Cuba Sí”
facility, his health has taken another downturn, and he has suffered a series of acute asthma
attacks and other health problems, including influenza. On 18 May 2018, Mr. Cardet
underwent a biopsy, the results of which have not yet been made known to him.
18.
The source indicates that, on 26 May 2018, the “Cuba Sí” prison director notified
Mr. Cardet’s family that their visiting rights had been suspended for six months in
retaliation for their lobbying and activism with respect to international human rights
mechanisms and the international press.
19.
Since Mr. Cardet’s arrest, his family home has been under constant surveillance and
has even been attacked with stones. The arrest and constant harassment have had a
psychological impact on Mr. Cardet’s family, particularly his two young children.
20.
The source claims that Mr. Cardet’s detention constitutes an arbitrary deprivation of
his liberty under categories II and III of the Working Group, inasmuch as it results from the
exercise of his human rights and is in violation of international standards related to the right
to a fair trial.
Allegations concerning category II
21.
The source submits that Mr. Cardet’s arrest and detention fall under category II
because they relate to the exercise of his right to freedom of opinion and expression, and his
right to freedom of peaceful assembly and association, which are protected by articles 19
and 20, respectively, of the Universal Declaration of Human Rights.
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22.
According to the source, Mr. Cardet’s arrest, continued detention and sentence are
based solely on his political activism as the leading member of the Movimiento Cristiano
Liberación, a non-governmental human rights organization that advocates peaceful,
democratic change in Cuba. The activists of this organization (which has been banned by
the government authorities) have, in the past, been subjected to harassment, intimidation,
violence and arbitrary detention. Mr. Cardet himself has previously been arrested for his
activism.
23.
Prior to Mr. Cardet’s current detention, the State security forces informed his family
that they planned to subject him to prolonged detention on account of his activism. The day
after his return to Cuba, the State security forces violently arrested him and later notified
his family that he was in detention because he was a “counter-revolutionary”.
24.
The source also affirms that the purpose of Mr. Cardet’s arrest was, in part, to
prevent him from engaging in political activities with the Movimiento Cristiano Liberación
and from speaking in public, against the backdrop of nine days of compulsory mourning
imposed by the State following the death of former President Fidel Castro.
25.
According to the source, the authorities came up with a legal justification after the
event in order to continue detaining Mr. Cardet, accusing him of attacking a State official
during his arrest. This despite the testimony of an eyewitness, who stated that it was Mr.
Cardet who was attacked. The witness asserted that Mr. Cardet was immobilized so swiftly
and violently that he had no opportunity to defend himself in any way.
26.
The source indicates that, despite the bringing of criminal charges, the State security
forces have repeatedly threatened and harassed Mr. Cardet during his detention, both before
and after his conviction, telling him that if he renounced his beliefs, he would be freed, and
threatening to extend his sentence. In the source’s view, this leads to the conclusion that the
criminal charges were fabricated in an effort to provide a legal basis for Mr. Cardet’s
arbitrary detention. It is alleged that this approach is consistent with the authorities’
documented practice of laying criminal charges against critics of the regime and of citing
various crimes to keep them in prison.
27.
The source concludes that Mr. Cardet is therefore being arbitrarily deprived of his
liberty for peacefully exercising his rights to freedom of opinion and expression, and to
freedom of association, which are guaranteed under international human rights law.
Allegations concerning category III
28.
The source claims that Mr. Cardet’s detention constitutes an arbitrary deprivation of
his liberty under category III, since it does not comply with international norms relating to
minimum guarantees of due process, as established in the Universal Declaration of Human
Rights and the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment. It is argued that the Government denied Mr. Cardet his rights
to humane treatment and to a fair and impartial trial.
29.
The source makes reference to article 5 of the Universal Declaration of Human
Rights, which establishes that “[n]o one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment”, and to principles 1, 6, 10 to 13, 15, 19, 24 and 38 of
the Body of Principles.
30.
The source states that Mr. Cardet was arrested at his place of residence by plain-
clothes State security officers who did not produce an arrest warrant or formal identification,
in violation of principles 10 to 13 of the Body of Principles.
31.
It is alleged that Mr. Cardet was severely beaten during his arrest and again upon
arrival at the police station. Despite the severity of the beatings, the authorities did not
provide him with medical attention until seven days after his arrest. According to the source,
the medical assessment revealed serious injuries to the eyes, neck, abdomen, arms and legs.
Mr. Cardet was held incommunicado for the first nine days of his detention. His family
stated that the injuries were still visible when they saw him for the first time, more than a
week after the arrest. Following the visit, Mr. Cardet was beaten again and placed in a
punishment cell. He was also subjected to prolonged pretrial detention, and his bail requests
were rejected.
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32.
The source claims that, during Mr. Cardet’s continued detention, the State security
forces have kept abusing him psychologically, through threats and harassment, to persuade
him to renounce his views. During his imprisonment, Mr. Cardet has been physically
assaulted on at least two occasions by other inmates. On 19 December 2017, after the
second of these beatings in the “Cuba Sí” prison, Mr. Cardet was also denied access to his
family for almost a month. His family has indicated that, when they finally saw him on 15
January 2018, scars were apparent on his abdomen, he was suffering from headaches and
dizziness, and he had not received medical care since the attack. His request for a visit by a
priest has also been turned down. Based on these facts, the Inter-American Commission on
Human Rights considered that Mr. Cardet faces a serious threat to his well-being, and has
called for him to be given urgent protection. In addition, on 26 May 2018, family visits
were suspended for six months.
33.
In the source’s view, the treatment to which Mr. Cardet has been subjected during
his arrest and detention violates article 5 of the Universal Declaration of Human Rights and
principles 1 and 6 of the Body of Principles. The denial of medical care also violates
principle 24. The denial of family visits during the first nine days of detention, following
the beating inflicted on 19 December 2017, and currently for a period of six months,
violates principles 15 and 19, and the denial of bail pending trial violates principle 38. The
source adds that the Committee against Torture has expressed concern over, inter alia, the
denial of family visits, the physical and verbal abuse from inmates and the use of
incommunicado detention and prolonged pretrial detention in Cuba.
34.
The source further argues that there has been a violation of basic guarantees of the
right to a fair trial, a right protected by article 10 of the Universal Declaration of Human
Rights, which establishes that “everyone is entitled in full equality to a fair and public
hearing by an independent and impartial tribunal, in the determination of his rights and
obligations and of any criminal charge against him.”
35.
The source highlights that the right to be tried by an independent and impartial
tribunal is absolute and not subject to derogation. The requirement of independence
includes the independence of the judiciary from political interference by the executive
branch or the legislature. Article 11 (1) of the Universal Declaration of Human Rights
provides that “everyone charged with a penal offence has the right to be presumed innocent
until proved guilty according to law in a public trial at which he has had all the guarantees
necessary for his defence.”
36.
The source alleges that, in Cuba, the courts are subordinate to the executive and
legislative branches, which are controlled by the Communist Party. The source refers to the
findings of two United Nations treaty bodies on the independence of the judiciary in Cuba
and to the observations of various special rapporteurs on the matter.
37.
The source states that: (a) Mr. Cardet was not shown an arrest warrant; (b) following
his arrest, he was not informed of the charges against him and was held incommunicado for
nine days; (c) during the trial, Mr. Cardet’s lawyer did not have the opportunity to present
all the evidence for the defence of his client, as several defence witnesses were unable to
testify; and (d) at the same time, the court accepted unreliable testimony from three
prosecution witnesses who had not been present at the scene and whose testimony was
discredited under questioning by a defence lawyer.
38.
It is asserted that the outcome of Mr. Cardet’s trial was predetermined from the start.
The State security forces made threats to his family to the effect that they would imprison
him even before they had arrested him, and before the alleged crime had been committed.
39.
The source provides additional information on the context in which judicial
independence, due process of law and the exercise of the right to personal liberty should
allegedly be framed in the present case.
40.
It is stated that the Communist Party of Cuba, which is the only party legally
recognized in the Constitution, controls all government agencies and civil institutions.
These include the National Assembly and the Council of State, through which the Party and
its high-ranking officials control the judiciary. It is alleged that Cuban citizens are not free
to express critical or dissenting opinions without fear of government repression, including
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deprivation of personal liberty. The source indicates that political groups are prohibited and
that legal recognition (registration) is systematically denied to civil society organizations,
which are subjected to intimidation, raids, confiscations, physical attacks, arbitrary
detention, unfair trials and the forced exile of their members.
41.
The source provides statistics according to which, in 2016, there were 9,940 reported
cases of alleged arbitrary detention, with a further 4,800 cases between January and
November 2017. It is claimed that the authorities fail to comply with procedural laws, for
example with regard to the legal time limit for filing charges. According to the source, the
authorities often use pretrial detention of up to two years as a tool for controlling dissent.
Moreover, they do not fulfil their obligations to inform detainees of the reasons for their
arrest and to provide them with legal assistance, nor do they carry out their duty to supply a
duly signed detention report.
42.
The source says that, in addition to overcrowding and insufficient sanitary
conditions in detention centres, political prisoners are subjected to ill-treatment, physical
attacks, abuse, isolation, prolonged solitary confinement and the denial of visits and
telephone calls. It is further alleged that, in such cases, the presumption of innocence is not
respected, trials are held in secret or are closed to the public, and only State lawyers may
provide a legal defence to the accused in criminal proceedings. Lastly, it is argued that
equality of arms between the prosecution and the defence is not respected during trials.
Discussion
43.
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). In the present case, the Government submitted a late response to
the source’s arguments. Although the Working Group did not receive a timely response
from the Government before the deadline set, in accordance with paragraph 16 of its
methods of work, it renders the present opinion on the basis of all the information available
to it.
Category I
44.
The Working Group will first consider whether there was a legal basis for Mr.
Cardet’s detention. The Working Group has repeatedly stated in its jurisprudence that even
when the detention of a person is carried out in conformity with national legislation, the
Working Group must ensure that the detention is also consistent with the relevant
provisions of international law.1 It is not sufficient to invoke a legal norm when the case is
under consideration by an international mechanism, since the legal basis must exist and be
evident at the time of arrest.
45.
Pursuant to international human rights law, no one is to be deprived of his or her
liberty except on such grounds and in accordance with such procedures as are established
by law. In the view of the Working Group, this obligation requires States to notify the
person of the legal basis for his or her arrest when it takes place. In addition, international
standards for the protection of human rights require that anyone arrested or detained on a
criminal charge be brought before a judicial authority without delay. While the time that
elapses may vary, a “delay” is considered to be any period of time longer than 48 hours, as
this is understood as being sufficient to transport the individual and prepare for the judicial
hearing; any delay longer than 48 hours must remain absolutely exceptional and be justified
under the circumstances.2
46.
The Working Group further considers that the international norms protecting the
right to liberty and security of the person require that the detainee be physically present
before a judicial authority. In this regard, the Working Group has stated on various
1 For example, opinions Nos. 59/2018, 1/2018, 79/2017 and 42/2012.
2 Opinions Nos. 59/2018, paras. 80 to 83, and 48/2018, para. 63.
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occasions that incommunicado detention is incompatible with international human rights
law, as it violates the right to question the legality of detention before a judicial court or
tribunal.3
47.
In the present case, State security officers who did not identify themselves arrested
Mr. Cardet violently and without explanation. They did not produce an arrest warrant or
inform him of the existence of criminal charges against him.
48.
Moreover, Mr. Cardet was not brought promptly before a judge. There was no
independent judicial oversight of the detention. On the contrary, Mr. Cardet was taken to a
local police station, where he was beaten again and held incommunicado for nine days. He
did not have access to a lawyer. He was denied visits and telephone calls, and his family
was unaware of his whereabouts. Despite the beatings inflicted during his arrest, he was
also refused medical treatment during the first seven days of his detention. In the
circumstances, it is clear that Mr. Cardet could in no way exercise his right to question the
legal basis for his detention.4
49.
In the light of these considerations, in the absence of an arrest warrant, and given the
subsequent use of incommunicado detention and the lack of judicial oversight, legal or
medical assistance and family contact, the Working Group must conclude that there was no
legal basis for the arrest, and the detention is therefore considered arbitrary under category I,
insofar as it contravenes articles 9 and 10 of the Universal Declaration of Human Rights.
Category II
50.
With regard to category II, and on the basis of all the information available to it, the
Working Group notes that Mr. Cardet is a well-known democratic activist within Cuban
society. As well as being a family doctor, Mr. Cardet is a member and the national
coordinator of the Movimiento Cristiano Liberación, an association that advocates peaceful,
democratic political change in Cuba. Mr. Cardet has been arrested on several occasions in
connection with his political activism.
51.
The Working Group stresses that political activism, open calls to society on
democratic and legal matters, and membership of civil society organizations are activities
protected under international human rights law, in particular articles 19 to 21 of the
Universal Declaration of Human Rights.
52.
In the present case, two days after Mr. Cardet had spoken out against the former
President of the Republic, in peaceful exercise of his human rights, he was arrested in the
street by State security officers. Moreover, the arrest was preceded by threats and
harassment directed by State agents at members of Mr. Cardet’s family, who were told that
he would be arrested because he was a counter-revolutionary. In addition, State security
officers have repeatedly threatened and harassed Mr. Cardet during his detention, both
before and after his conviction, telling him that if he renounces his beliefs and opinions, he
will be freed.
53.
The Working Group was persuaded that the detention of Mr. Cardet resulted from
the political and social activities to promote voting and democratic participation that he
undertook individually and through the Movimiento Cristiano Liberación.
54.
In view of the above, the Working Group considers that the authorities deprived Mr.
Cardet of his liberty for exercising his rights to freedom of thought, conscience, opinion,
expression, association and participation, as recognized in articles 18 to 21 of the Universal
Declaration of Human Rights, which renders the detention arbitrary under category II.
3 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), paras. 18, 75 and 93
(c).
4 A/HRC/30/37.
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Category III
55.
In the light of the findings in relation to categories I and II, under which it was
concluded that the detention of Mr. Cardet is the result of the exercise of his human rights,
the Working Group considers that there was no basis for a trial. Nevertheless, since one did
take place, the Working Group will analyse whether, during the course of it, fundamental
components of a fair, independent and impartial trial were respected.
56.
International human rights law recognizes that everyone has the right not to be
arbitrarily deprived of their liberty and to be presumed innocent until proved guilty. To this
end, everyone has the right to be heard in a public trial at which they have all the guarantees
necessary for their defence and their right to be tried by an independent criminal court is
respected.5
57.
The Working Group received credible information concerning the degrading
treatment to which Mr. Cardet was subjected by the authorities, including threats, beatings,
insults, the denial of urgent medical treatment, and incommunicado detention. Moreover,
this treatment, far from being an isolated occurrence, was repeated on various occasions: at
the time of arrest, during the transfer, at the police station, during pretrial detention and in
prison. Consequently, the Working Group can only conclude that Mr. Cardet was the victim
of cruel, inhuman or degrading treatment. This treatment, meted out to Mr. Cardet by the
authorities at different times, contravenes international obligations pertaining to a fair and
impartial trial, including the presumption of innocence.
58.
It is difficult to accept that a person subjected to cruel, inhuman or degrading
treatment during his or her detention and prosecution could have the means and tools
needed to prepare a legal defence. In the view of the Working Group, the use of
incommunicado detention in the first few days after the arrest and at the start of the trial,
the lack of access to a lawyer, the ill-treatment and the inhuman conditions of detention
meant that Mr. Cardet did not receive a fair trial with the necessary guarantees of due
process.
59.
The source also stated that, in Cuba, the courts are subordinate to the executive and
legislative branches, which are controlled by the Communist Party. The Working Group is
aware that bodies established under treaties to which Cuba is a party have expressed
concern over the lack of independence of the judiciary. For example, the Committee on
Enforced Disappearances “is concerned that the subordination of the courts to other organs
of the State may affect the guarantee of the independence of the courts” and recommended
that Cuba should adopt “the measures necessary to guarantee the full independence of the
judiciary and other branches of government”.6 Similarly, the Committee against Torture
“considers it essential that legislative measures be adopted to guarantee the independence
of the judiciary”.7
60.
The Working Group was convinced that the Cuban authorities committed serious
breaches of international norms relating to the right to a fair, independent and impartial trial,
in violation of articles 9 to 11 of the Universal Declaration of Human Rights, which renders
the detention arbitrary under category III.
61.
As to the allegations concerning the cruel, inhuman or degrading treatment or
punishment to which Mr. Cardet was exposed from the outset of his detention, the Working
Group forwards the information to the Special Rapporteur on torture for possible action. In
the same vein, with regard to the claims made by the source, the Working Group refers the
present case to the Special Rapporteur on the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health.
Disposition
62.
In the light of the foregoing, the Working Group issues the following opinion:
5 Articles 9 to 11 of the Universal Declaration of Human Rights.
6 CED/C/CUB/CO/1, paras. 17 and 18.
7 CAT/C/CUB/CO/2, para. 18.
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The deprivation of liberty of Eduardo Cardet Concepción, being in
contravention of articles 9, 10, 11, 18, 19 and 20 of the Universal Declaration of
Human Rights, is arbitrary and falls within categories I, II and III.
63.
The Working Group requests the Government to take the necessary steps to remedy
the situation of Mr. Cardet without delay and bring it into conformity with the relevant
international norms, including those set out in the Universal Declaration of Human Rights.
64.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Cardet immediately and accord him
an enforceable right to compensation and other reparations, in accordance with
international law.
65.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Cardet and to take appropriate measures against those responsible for the violation of his
rights.
66.
In accordance with paragraph 33 (a) of its methods of work, the Working Group
refers the case to the Special Rapporteur on torture and the Special Rapporteur on the right
of everyone to the enjoyment of the highest attainable standard of physical and mental
health for appropriate action.
67.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
68.
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 Mr. Cardet has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Cardet;
(c)
Whether an investigation has been conducted into the violation of Mr.
Cardet’s rights and, if so, the outcome of the investigation;
(d)
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;
(e)
Whether any other action has been taken to implement the present opinion.
69.
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.
70.
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.
71.
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.8
[Adopted on 19 November 2018]
8 Human Rights Council resolution 33/30, paras. 3 and 7.