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.22-09986 (E) 100123 100123
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-third session, 30 March–8 April 2022
Opinion No. 37/2022 concerning Alina López Miyares (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 42/22.
2.
In accordance with its methods of work,1 on 18 November 2021 the Working Group
transmitted to the Government of Cuba a communication concerning Alina López Miyares.
The Government replied to the communication on 17 February 2022. 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).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2022/37
General Assembly
Distr.: General
24 June 2022
English
Original: Spanish
A/HRC/WGAD/2022/37
2
GE.22-09986
Submissions
Communication from the source
4.
Alina López Miyares is a national of Cuba and the United States of America and was
59 years old at the time of her arrest. It is reported that Ms. López Miyares suffers from
kidney failure and skin problems.
5.
Ms. López Miyares was arrested by military forces at the airport in Cuba in January
2017 as she was returning to the United States after visiting her family. The authorities
reportedly produced a warrant, issued by the Military Prosecutor’s Office, for her arrest on
suspicion of espionage under article 97 of the Criminal Code. Ms. López Miyares was taken
to an unknown location. According to the source, it was not possible to locate her because of
the lack of available information on the case, something that the authorities have denied. It
is also unclear what kind of treatment she received in the 48 hours following her arrest.
6.
According to the source, while the arrest was not violent, the requirements of due
process were not met, insofar as a precautionary measure was imposed on a civilian by a
military court. These actions allegedly prevented Ms. López Miyares from having access to
a lawyer from the beginning of her detention and made it impossible for her to challenge the
legality of her arrest. Furthermore, she had no contact with her family in the months following
her arrest because government authorities refused to provide any information on her case and
the reasons for her detention. The source claims that, owing to the lack of information from
the Government, it is not known when Ms. López Miyares first had contact with her defence
lawyer or when she was first brought before a judge.
7.
The charges filed by the Military Prosecutor’s Office were based on the alleged
relationship between Ms. López Miyares and her husband and the intelligence agencies of
the United States. Against this backdrop, the source claims that after her arrest, without the
presence of a lawyer and under coercion and torture, Ms. López Miyares was forced to
confess to giving insignificant and obsolete information to her husband, who is under
investigation for espionage and who allegedly worked for the Government as an operative of
the General Intelligence Directorate of the Ministry of the Interior and was a reserve military
officer and a diplomatic official at the Permanent Mission of Cuba to the United Nations in
New York.
8.
The source claims that the Military Prosecutor’s Office did not have any material
evidence to support the charges. However, after several months in illegal detention, and
unable to mount a defence, Ms. López Miyares was tricked into giving evidence to the
Military Prosecutor’s Office on the false promise of a reduced sentence. Her government-
appointed lawyer convinced her to ask her family in the United States to send her one of her
notebooks, which contained notes and certain names.
9.
According to the information received, Ms. López Miyares was held in pretrial
detention for nine months, from January to October 2017, when she was tried and sentenced
to 13 years’ imprisonment.
10.
The trial, which took place on the morning of 2 October 2017, lasted a few hours and
was held behind closed doors, out of public view. During the trial, Ms. López Miyares was
unable to present evidence or see the evidence presented against her. She was forced to accept
the representation of a government-appointed lawyer, rather than a lawyer of her choice.
According to the information received, the government-appointed lawyer, who was from a
collective law firm, demanded thousands of dollars for representing her. However, the source
claims that the lawyer has not communicated with Ms. López Miyares’ family or with her
lawyer in the United States, a failure suspected to be motivated by fear of reprisals from the
Government.
11.
The source claims that since her arrest, Ms. López Miyares has not been given access
to the consular assistance or representation to which she is entitled as a citizen of the United
States.
12.
The judgment describes how the relationship between Ms. López Miyares and her
husband developed, and states that, upon their marriage, he confessed to her his former role
as an officer in the intelligence services of the Government of Cuba. Ms. López Miyares,
A/HRC/WGAD/2022/37
GE.22-09986
3
who travelled regularly between Cuba and the United States, was allegedly later contacted
by officials of the Federal Bureau of Investigation (FBI) and the Central Intelligence Agency
(CIA). According to the judgment, Ms. López Miyares’ husband revealed to her the names
of Cuban agents with whom he had worked in the United States and divulged information
about their activities. The judgment also emphasizes that, from the beginning of the
investigation, Ms. López Miyares provided detailed statements describing her activities in
order to assist in clarifying the facts. The judgment also states that the defendant has criticized
the social process in Cuba in the past. Lastly, the judgment shows that the lawyer
acknowledged the facts on Ms. López Miyares’ behalf, drew attention to her cooperation and
remorse and requested a reduced sentence below the minimum set out in law.
13.
Ms. López Miyares was sentenced to 13 years’ imprisonment. In response, on 9
October 2019 her defence lawyer requested a judicial review of decision No. 109 of 2017,
which set out her conviction and allegedly specified that there were no grounds for appeal.
The lawyer argued that 13 years’ deprivation of liberty was a disproportionate penalty
because it was not commensurate with the seriousness of the offence or the defendant, and
that there had not, therefore, been an adequate use of judicial discretion in accordance with
article 402 of the Military Criminal Procedure Act. The judicial review was allegedly
rejected, and in Cuba there is no higher judicial body with which an appeal may be lodged.
14.
The source claims that after having been imprisoned in the Manto Negro maximum
security women’s prison and the Western Women’s Prison from the outset of her pretrial
detention until her sentencing, Ms. López Miyares is currently being held in a minimum-
security camp in the province of Artemisa, where she is working as a teacher while serving
her sentence.
15.
The source claims that, owing to her arbitrary detention, Ms. López Miyares’ health
is deteriorating significantly and rapidly. She has suffered substantial hair loss and skin
discolouration. These symptoms require immediate medical attention, which the authorities
have allegedly denied her. The source highlights the risk to her health and safety.
16.
The source alleges that even once she has been released and has received proper health
care, Ms. López Miyares is likely to face lifelong health problems owing to her prolonged
detention. The source claims that Ms. López Miyares’ detention is not only arbitrary and in
violation of international standards, but that it also puts her life at risk because she is denied
the health care and vital medicines that she so urgently needs. Owing to the coronavirus
disease (COVID-19) pandemic and the Government’s refusal to allow access to her, her
family has also been unable to provide her with medicines and other necessary supplies.
Category I
17.
According to the source, the authorities claim that the grounds for Ms. López Miyares’
deprivation of liberty can be found in national legislation. The offence of espionage is set out
in article 97 (1) of the Criminal Code, which does not distinguish between roles or
perpetrators, stating that the offence is committed by “any person who, to the detriment of
the security of the State, participates in or collaborates or maintains relations with the
intelligence services of a foreign State, or provides them with information, or obtains or
procures information for the purpose of communicating it to such services ...”. The source
claims that, since this was not a military offence, Ms. López Miyares should have been tried
and, if appropriate, deprived of liberty in accordance with civilian law.
18.
The source claims that the proceedings against Ms. López Miyares are criminal in
nature and that the competence of the civilian courts is clearly defined under the Criminal
Procedure Act, article 4 of which states that “[t]he people’s criminal courts are responsible
for hearing cases arising from the commission of ordinary punishable acts and acts against
the security of the State and for issuing declarations in respect of persons who pose a danger”.
However, the source claims that officials in Cuba informed Ms. López Miyares’ family that
the case was political in nature and that the defendant has been told repeatedly not to
communicate with her lawyer in the United States.
A/HRC/WGAD/2022/37
4
GE.22-09986
Category III
19.
The source alleges violations of Ms. López Miyares’ rights under articles 9, 10 and
11 of the Universal Declaration of Human Rights and under articles 9 and 14 of the Covenant,
which Cuba signed on 28 February 2008.
20.
The source claims that the prosecution of civilians by military courts is incompatible
with article 14 of the Covenant because it does not meet the standard of the fair, impartial
and independent administration of justice.
21.
The source claims that the Western Territorial Military Court should have referred the
case to the corresponding people’s court, as established in the Military Offences Act, Act
No. 22 of 15 February 1979, article 2 of which states: “Military offences are committed by:
(a) members of the Revolutionary Armed Forces, the Youth Work Brigade or the Ministry
of the Interior, in active military service; (b) reservists, when instructed to perform military
tasks or duties ...” The source claims that, at the time of the alleged facts under investigation,
those criteria did not apply to Ms. López Miyares, or to the member of her family who also
stands accused by the Military Prosecutor’s Office, who was retired.
22.
Moreover, the source claims that the criminal sanction imposed in this case of alleged
espionage was extremely severe given that the intelligence allegedly supplied was not
serious, and that the 13-year prison sentence given to Ms. López Miyares was excessive and
disproportionate.
23.
The source claims that the sanction was directly prejudiced by the substantial violation
of the Criminal Procedure Act caused by the military investigation process, which is
incompatible with international human rights law.
24.
According to the information received, in Cuban military judicial proceedings a
defence can be mounted only belatedly, because lawyers are unable to intercede until the
investigation has concluded. In the case at hand, that provision left Ms. López Miyares unable
to defend herself, thereby violating her right to due process, the adversarial principle and
equality of arms, which requires that both parties are present during investigation proceedings
in order to monitor them effectively.
25.
The source emphasizes that, although the oral hearing is deemed the most important
part of criminal proceedings, it must be remembered that it is during the preparatory or
investigative phase that the evidence that will form the basis of the charges and that will be
presented to the judge is obtained. Given that the sanction imposed does not reflect the gravity
of the offence or the nature of the defendant, it must be concluded that proper use of judicial
discretion was not made.
26.
The source claims that the military court also failed to take into account or value Ms.
López Miyares’ positive and rigorous attitude towards clarifying the facts. Furthermore, the
judge did not consider the mitigating circumstance described in article 52 (ch) of the Criminal
Code, as provided for in article 54 (1), on the extraordinary circumstances for the mitigation
of a sanction. Article 54 (1) allows for a reduction of up to half the minimum sanction, which
in this case could have been up to five years, since the minimum penalty for the offence for
which Ms. López Miyares was sentenced is 10 years’ imprisonment.
Response from the Government
27.
On 18 November 2021, the Working Group transmitted the source’s allegations in
relation to the case of Ms. López Miyares to the Government and requested it to provide
detailed information on the case in its response. The Working Group requested the
Government to clarify the factual and legal grounds for Ms. López Miyares’ detention and
explain how it is compatible with the human rights obligations of Cuba.
28.
The Working Group also urged the Government of Cuba to fulfil its duty to ensure
her physical and mental integrity. In the context of the global pandemic, and in accordance
with the World Health Organization recommendations concerning the response to COVID-
19 in places of detention, the Government was urged to prioritize the use of non-custodial
measures at all stages of criminal proceedings, including during the pretrial phase, the trial,
sentencing and sentence enforcement.
A/HRC/WGAD/2022/37
GE.22-09986
5
29.
The Government submitted its response to the Working Group on 17 February 2022,
setting out the legal and social context in which the events surrounding Ms. López Miyares’
detention took place. In its response, the Government explains to the Working Group that
Ms. López Miyares is a Cuban citizen who has resided in the United States since 1966 and
who has maintained a permanent residence in Cuba since 2016 after having submitted a
repatriation application in 2015.
30.
Ms. López Miyares married a Cuban citizen, a lieutenant colonel in the reserves who,
during his active professional life, had access to classified information relating to State
security. The Government highlights that although he had joined the reserves, he was subject
to a lifelong allegiance agreement owing to the classified nature of the information that he
possessed.
31.
The Government claims that Ms. López Miyares began to travel regularly to Cuba
from the United States and was visited at her home by officials of the United States special
services, specifically the FBI and the CIA, during one of those trips in November 2011. She
informed her spouse of the visit.
32.
According to the Government, the agents offered to guarantee residency permits in
the United States for Ms. López Miyares and her daughter in exchange for information on
her husband’s work.
33.
The Government informs the Working Group that Ms. López Miyares met with
several FBI officials, who set out the information that they required. Ms. López Miyares did
indeed pass on to them the sensitive information disclosed by her husband, for which, it is
claimed, she received payments of up to US$ 10,000. Additionally, Ms. López Miyares
arranged for her husband to leave the country illegally using funds given to her by FBI agents
during her last trip to Cuba.
34.
With regard to the source’s claims in relation to category I, the Government states that
Ms. López Miyares’ detention complies not only with Cuban criminal law, but also with its
obligations under international legal instruments. The Government claims that the
Constitution establishes and guarantees access to justice, due process and effective judicial
remedies to protect the rights of all persons, and that an investigation into Ms. López
Miyares’ detention has confirmed that the source’s allegation with regard to category I is
false.
35.
The Government informs the Working Group that Ms. López Miyares was arrested at
6 p.m. on 15 January 2017 for her involvement in an offence of illegal departure from the
territory. The complaint was filed by the relevant body of the Ministry of the Interior. The
Government’s response clarifies that the investigation and proceedings are subject to military
jurisdiction in line with the provisions of the Military Criminal Procedure Act of 1977
relating to cases involving charges against military officials, even if one of the participants
in the offence is a civilian. Persons who leave active military service after the events in
question are also subject to the jurisdiction of the military courts.
36.
The Government claims that Ms. López Miyares was brought before a judge on 18
January 2017, within the applicable 72-hour time frame, that a preliminary case file was
opened on the possible offence of disclosure of State security secrets, which is set out and
sanctioned under articles 95 (1) and (2) (a) of the Criminal Code, and that she was placed in
pretrial detention at 10 a.m.
37.
The Government denies that Ms. López Miyares was held in an unknown location.
Moreover, it claims that she was notified immediately of the decision to place her in pretrial
detention, during which she was detained in the Western Women’s Prison. The Government
also asserts that she was informed of her right to lodge a complaint with a higher body within
five days and that she did so on 19 January 2017, when she submitted a written complaint to
the Military Prosecutor appealing the precautionary measure under article 107 of the Military
Criminal Procedure Act. On 21 January at 4 p.m., within the time frame provided for in article
271 of the aforementioned Act, she was informed that her appeal had been rejected since the
assumptions on which her pretrial detention was based remained valid.
38.
The Government claims that during the investigation process, and in response to a
request made by Ms. López Miyares to her mother, documentary evidence of the offences
A/HRC/WGAD/2022/37
6
GE.22-09986
with which she was charged was sent from Miami. This was submitted voluntarily for
inclusion in the investigation. Moreover, Ms. López Miyares acknowledged that her husband
had given her the documents so that she could pass on information to the United States special
services.
39.
Similarly, the Government rejects the allegation that Ms. López Miyares was forced
to accept the representation of a government-appointed lawyer instead of a lawyer of her
choice. It states that, on 15 May 2017, Ms. López Miyares entered into legal services contract
No. 130,181 with a specialist at a collective law firm located on 5a between 110A and 112
in Playa, Havana, with an instruction fee of 415 Cuban pesos. It is untrue that she was
required to pay thousands of dollars for representation.
40.
Moreover, the Government claims that Ms. López Miyares examined her file jointly
with her lawyer on 8 August 2017 for 2 hours and 10 minutes, after which they stated that
they did not consider it necessary to extend the investigation phase.
41.
The Government also informs the Working Group that Ms. López Miyares stated
freely that she understood the charges and acknowledged the facts as set out in the statements
made during the preparatory phase. She also became a collaborating witness, providing
details of her actions, the sequence of her contacts with the officers of the United States
special services, names, identifications using photographs, meeting places and topics of
discussion. This information was essential for clarifying the facts. Ms. López Miyares
continued to cooperate with the judges, who noted her genuine remorse for her actions.
42.
In its reply, the Government dismisses the source’s claims, stating that Ms. López
Miyares is currently serving her sentence in a minimum-security facility where she is able to
enjoy ordinary home leave for five days or more; indeed, it was for that reason that she was
transferred to the facility, known as Ceiba 4, in Artemisa. Furthermore, Ms. López Miyares’
sentence has been reduced on six occasions, including two reductions totalling 350 days,
allowing her to take repeated leaves of absence from the prison.
43.
In addition to the above, Ms. López Miyares worked in the prison’s medical unit and
as an English teacher at its training facility. She also studied and successfully completed
training courses in accounting, physiotherapy and crafts officially recognized by the Ministry
of Public Health, the Ministry of Education and the Cuban Association of Artisans and
Artists.
44.
The Government maintains that while serving her sentence, Ms. López Miyares has
been treated in compliance with the United Nations Standard Minimum Rules for the
Treatment of Prisoners (the Nelson Mandela Rules) and the United Nations Rules for the
Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the
Bangkok Rules). Her physical and mental integrity and human dignity have been respected
at all times, following good practices to protect and promote her rights and safety, in
accordance with national legislation.
45.
The Government contends before the Working Group that its submission, which is
organized by date, sets out the facts clearly and addresses each and every one of the source’s
claims.
Additional comments from the source
46.
In accordance with its working methods, the Working Group communicated the
Government’s response to the source, which submitted its additional comments on 15 March
2022.
47.
In its additional comments, the source reiterates the facts described initially, adding
that Ms. López Miyares was deceived during the proceedings and is in poor health.
48.
The source expands on the information submitted by pointing out facts such as Ms.
López Miyares’ enforced disappearance and the violation of the constitutional and human
right of all citizens to due process.
49.
The source has conducted a legal analysis of the jurisdiction and competence of the
courts that tried Ms. López Miyares and determined that she is being arbitrarily detained
under categories I and III.
A/HRC/WGAD/2022/37
GE.22-09986
7
Discussion
50.
The Working Group thanks the source and the Government for their submissions.
51.
In determining whether Ms. López Miyares’ deprivation of liberty is arbitrary, the
Working Group has regard to the principles established in its jurisprudence to deal with
evidentiary issues. If the source has established a prima facie case for breach of international
human rights law constituting arbitrary detention, the burden of proof should be understood
to rest upon the Government if it wishes to refute the allegations.2 Mere assertions by the
Government that lawful procedures have been followed are not sufficient to rebut the
source’s allegations.
52.
Resolution 1991/42 of the Human Rights Council mandates the Working Group to
investigate cases of arbitrarily imposed deprivation of liberty. In fulfilling this mandate, the
Working Group refers to the international human rights standards established, insofar as
Cuba is concerned, in the Universal Declaration of Human Rights. In the present case, the
Working Group takes note of the Government’s claims that the proceedings against Ms.
López Miyares were conducted in compliance with Cuban law. However, even when
detention is carried out in conformity with domestic legislation, the Working Group must
assess whether it was consistent with international human rights law.3
Category I
53.
Having received information from the source and the Government on the
circumstances, the Working Group has examined the legality of the arrest and detention in
the light of voluntarily accepted international instruments, seeking to interpret or qualify
domestic proceedings only insofar as they affect the State’s international obligations, as
stated previously in the Working Group’s jurisprudence.4
54.
The Working Group has established that, in accordance with articles 1, 8, 9 and 10 of
the Universal Declaration of Human Rights and principle 10 of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment, all arrested persons
must be informed of the reasons for their arrest and of the judicial avenue by which they can
challenge its lawfulness.5 The reasons for the arrest must include the legal basis and factual
specifics to indicate the substance of the complaint and the wrongful act committed. These
reasons are understood to be the official basis for the arrest, not the subjective motivations of
the arresting officer.6
55.
In the present case, the source claims that Ms. López Miyares was arrested on
suspicion of espionage on a warrant issued by the Military Prosecutor’s Office. For its part,
the Government has contested that claim by informing the Working Group that “Alina López
Miyares was arrested at the Criminal Investigation and Operational Division for her
participation in the offence of illegal departure from the national territory. The complaint of
illegal departure was filed by the relevant body of the Ministry of the Interior.” There is
therefore a significant discrepancy between the reasons for Ms. López Miyares’ detention as
cited by the source and those put forward by the Government, which have not been duly
clarified.
56.
In that regard, the documentation submitted states that Ms. López Miyares was
detained on the orders of the Ministry of the Interior, and that the Government claims that
“this investigation and the corresponding action falls under military jurisdiction, as provided
for in the Military Criminal Procedure Act of 1977 relating to cases involving charges against
military officials, even if one of the participants in the offence is a civilian”. In the opinion
of the Working Group, this provision and the corresponding action are in direct contravention
of the fundamental guideline set out by the Working Group in its report to the Human Rights
2 A/HRC/19/57, para. 68.
3 Opinions No. 10/2018, para. 39; No. 4/2019, para. 46; No. 46/2019, para. 50; and No. 5/2020,
para. 71.
4 See opinion No. 43/2021.
5 Opinions No. 78/2020, paras. 42 and 43; and No. 82/2020, paras. 39 and 40.
6 A/HRC/30/37, annex, principle 7.
A/HRC/WGAD/2022/37
8
GE.22-09986
Council on the subject of military justice. 7 In the Working Group’s view, there is an
irreconcilable contradiction of values in the make-up of military courts, the main effect of
which is not the denial of justice, but rather a direct injustice. One of the core values of a
civilian judge is his or her independence, while the most appreciated value in a military
official is exactly the opposite: his or her obedience to his or her superiors.8
57.
The Working Group notes with concern that Ms. López Miyares, a civilian, has been
detained and tried by a military court, in violation of the Working Group’s guidance on the
minimum guarantees that military justice must not fail to respect, in that military tribunals
should only be competent to try military personnel for military offences, and if civilians have
also been indicted in a case, military tribunals should not try military personnel or,
consequently, civilians.9 It follows from this statement that Ms. López Miyares’ arrest and
detention violated the basic principles of international human rights law enshrined in the
Universal Declaration of Human Rights, since military law cannot form the legal basis for
the deprivation of liberty of a civilian. Therefore, such deprivation of liberty falls under
category I.
58.
The source claims that Ms. López Miyares was missing for several days. The Working
Group reiterates that enforced disappearance is considered to be the arrest, detention,
abduction or any other form of deprivation of liberty by agents of the State or by persons or
groups of persons acting with the authorization, support or acquiescence of the State,
followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate
or whereabouts of the disappeared person, which place such a person outside the protection
of the law, there being no minimum time frame, however short, for it to be considered that
an enforced disappearance has occurred (article 2 of the International Convention for the
Protection of All Persons from Enforced Disappearance). The Government claims that Ms.
López Miyares was not missing for several days, asserting that she was, in fact, brought
before the competent authority within 72 hours. However, international human rights
standards specify that the maximum time frame for bringing a detained person before the
competent authority is 48 hours and make clear that any delay must be absolutely exceptional
and justified.10 This situation contravenes article 9 of the Universal Declaration of Human
Rights and principles 11 and 37 of the Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment. Similarly, the Working Group recalls that in
order to be considered as having a legal basis, the legality of a detention must be overseen by
a judge, not a prosecution or security body, as has happened in this case.11
59.
According to the information received, Ms. López Miyares was held in pretrial
detention for nine months, from January to October 2017, when she was tried and sentenced
to 13 years’ imprisonment. The Working Group considers such a delay to be excessive and
contrary to the very nature of a democratic State governed by the rule of law, and to be in
breach of international human rights law, given that it violates the right to the presumption
of innocence and the right to personal liberty. These rights render pretrial detention
incompatible with conventions, since the presumption of innocence and personal liberty form
the backbone of the right to due process. The Working Group reiterates that the presumption
of innocence is guaranteed in article 11 (1) of the Universal Declaration of Human Rights
and principle 36 of the Body of Principles for the Protection of All Persons under Any Form
of Detention or Imprisonment.
60.
Moreover, the Working Group recalls that pretrial deprivation of liberty, as a
precautionary and non-punitive measure, must also comply with the principles of legality,
necessity and proportionality to the extent strictly necessary in a democratic society. It may
be imposed only within the limits strictly necessary to ensure that the efficient undertaking
of investigations is not impeded nor the action of justice evaded, and provided that the
competent authority substantiates and confirms the fulfilment of the aforementioned
7 A/HRC/27/48, paras. 66−71.
8 Ibid., para. 67.
9 Ibid., paras. 66–71.
10 Opinions No. 20/2019, para. 66; No. 26/2019, para. 89; No. 36/2019, para. 36; No. 56/2019, para. 80;
and No. 76/2019, para. 38.
11 Opinions No. 32/2020, para. 44; and No. 33/2020, para. 75.
A/HRC/WGAD/2022/37
GE.22-09986
9
requirements. Owing to the particularly restrictive nature of pretrial detention, its imposition
should be the exception, rather than the rule. The exceptional nature of pretrial detention is a
consequence of the presumption of innocence, according to which, in principle, all persons
subject to trial must be tried at liberty. Liberty must be recognized as the general rule or
principle, and pretrial detention as an exception in the interests of justice.
61.
The Working Group also recalls that in order to demonstrate that a detention is indeed
lawful, any detained person has the right to challenge its lawfulness before the court, as
provided for in articles 6 and 8 of the Universal Declaration of Human Rights. Receiving this
information is a self-standing human right essential to preserving legality in a democratic
society.12 Its absence constitutes a violation of principles 2, 4 and 10 of the Body of Principles
for the Protection of All Persons under Any Form of Detention or Imprisonment. Moreover,
in accordance with the 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, this right constitutes a peremptory norm of international law that applies to all forms
of deprivation of liberty.13
62.
The Working Group also recalls that any form of detention or imprisonment should
be ordered by a judicial authority in keeping with the law or be immediately subjected to the
effective control of that authority, whose status and remit should afford the strongest possible
guarantees of competence, impartiality and independence, in accordance with principle 4 of
the Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment. The Working Group notes that Ms. López Miyares has not received
guarantees of effective judicial oversight of the necessity and proportionality of her detention
by an independent and impartial authority.14
63.
In view of the foregoing, the Working Group notes that Ms. López Miyares’ detention
was arbitrary, in violation of her rights as protected by articles 3 and 9 of the Universal
Declaration of Human Rights, and falls under category I.
Category III
64.
The Working Group notes that the source has submitted both personal statements and
legal analysis regarding domestic legal decisions. In that regard, the Working Group recalls
that it has consistently refrained from replacing the national judicial authorities or acting as
a kind of supranational tribunal when it is urged to review the application of domestic law by
the judiciary. In that sense, reassessing the sufficiency of the evidence or addressing errors
of law allegedly committed by the domestic courts is beyond the scope of the Working
Group’s powers. In accordance with its mandate, the Working Group must assess whether
the rights guaranteed by the Universal Declaration of Human Rights were respected when
Ms. López Miyares was detained and, where required, to recommend to the State the
necessary adjustments to its domestic legislation to bring it into line with the principles set
out in the Universal Declaration of Human Rights and other rules of international law
accepted by the State.
65.
The Working Group reiterates its objection to the fact that Ms. López Miyares was
brought before a military court despite being a civilian; as previously noted, such an act is
unacceptable under international law. The Working Group stresses that international law on
personal liberty permits the restriction of that right in appropriate circumstances, but only
when decisions regarding arrest and detention are made by an external authority, that is, a
competent, independent and impartial judiciary. This is procedurally inherent in the right to
personal liberty and security and the prohibition of arbitrary deprivation of liberty under
articles 3, 9 and 10 of the Universal Declaration of Human Rights and principles 2, 4 and 6
of the Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment.
12 A/HRC/30/37, paras. 2 and 3. See also opinions No. 1/2017, No. 6/2017, No. 8/2017, No. 30/2017,
No. 2/2018, No. 4/2018, No. 42/2018, No. 43/2018, No. 79/2018 and No. 49/2019.
13 A/HRC/30/37, para. 11.
14 Ibid., annex, principles 2 and 6.
A/HRC/WGAD/2022/37
10
GE.22-09986
66.
The Working Group notes that Ms. López Miyares holds a second nationality in
addition to Cuban nationality, obliging Cuba to allow her to benefit from the presence of her
respective consul, in accordance with articles 5 (e), (i) and (j) and 36 of the Vienna
Convention on Consular Relations, signed by Cuba on 24 April 1963 and ratified on 15
October 1965. Consular assistance, which is invaluable for citizens with dual nationality,
plays an important role in monitoring the applicable procedures; the Working Group
therefore ties the right to consular assistance together with the right to legal assistance.
Confidentiality is implicit in the right to consular assistance. The information received by the
Working Group suggests that Ms. López Miyares has not benefited from this right, which is
enshrined in rule 62 (1) of the Nelson Mandela Rules and principle 16 (2) of the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment;
consequently, the rules of international law relating to due process guarantees have been
breached.15
67.
The Government maintains that Ms. López Miyares’ trial fully respected the
procedural guarantees set out in the Cuban Constitution and other laws and informs the
Working Group that she examined her file, together with her lawyer, and proceeded to
cooperate with the authorities. In that connection, the Working Group takes note of the
information provided by the Government regarding the contract signed by Ms. López
Miyares with her lawyer on 15 May 2017 and her examination, with her legal representative,
of her file on 8 August 2017. The Working Group therefore notes with concern that Ms.
López Miyares did not receive legal aid from the time of her arrest on 15 January 2017 until
15 May 2017, leaving her without legal assistance or access to a lawyer for four months.
68.
The Working Group highlights that principle 18 (3) of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment and rule 61 (1) of
the Nelson Mandela Rules stipulate clearly that a defendant must have access to legal counsel
without delay. As the Working Group has stated, principle 9 and guideline 8 of the 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 16 establish that persons
deprived of their liberty should have the right to legal assistance by counsel of their choice,
at any time during their detention, including immediately after the moment of apprehension,
and that upon apprehension, all persons should be promptly informed of this right. Access to
legal aid should not be unlawfully or unjustifiably restricted, as has happened in the case of
Ms. López Miyares.
69.
Furthermore, the Working Group notes that, as claimed by the source, Ms. López
Miyares was detained illegally for several months and unable to mount a defence. It has not
been possible to establish when she contacted her defence lawyer, although the Government
claims, without providing evidence, that she did so on several occasions. The Working Group
notes that the information received suggests that Ms. López Miyares did not have a defence
lawyer of her choice from the moment she was deprived of her liberty, and it recalls that
detainees must receive immediate legal assistance to provide them with independent and
appropriate guidance in making legal decisions. Once again, the Working Group emphasizes
that the presence of a lawyer from the first moment of an arrest guarantees the right to
challenge the legality of the detention before a court, which is a self-standing human right
and a peremptory norm of international law from which there can be no derogation.17 This
right applies irrespective of the place of detention or the legal terminology used in the relevant
legislation; therefore, any form of deprivation of liberty on any ground must be subject to
effective oversight and control by the judiciary.
70.
The foregoing leads the Working Group to conclude that Ms. López Miyares did not
receive a fair trial in line with the principle of equality of arms, particularly given that military
judges and prosecutors often fail to meet the fundamental requirements of independence and
impartiality. She was also denied the time and facilities necessary to prepare her defence, in
15 Opinion No. 81/2021, para. 55.
16 A/HRC/30/37.
17 A/HRC/22/44, para. 49.
A/HRC/WGAD/2022/37
GE.22-09986
11
violation of articles 10 and 11 of the Universal Declaration of Human Rights, rendering her
detention arbitrary under category III.
Decision
71.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Alina López Miyares, being in contravention of
articles 3, 9, 10 and 11 of the Universal Declaration of Human Rights, is arbitrary and
falls within categories I and III.
72.
The Working Group requests the Government of Cuba to take the steps necessary to
remedy the situation of Ms. López Miyares without delay and bring it into conformity with
the relevant international norms, including those set out in the Universal Declaration of
Human Rights.
73.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Ms. López Miyares immediately and accord
her an enforceable right to compensation and other reparations, in accordance with
international law.
74.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Ms.
López Miyares and to take appropriate measures against those responsible for the violation
of her rights.
75.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
76.
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 Ms. López Miyares has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Ms. López
Miyares;
(c)
Whether an investigation has been conducted into the violation of Ms. López
Miyares’ 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.
77.
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.
78.
The Working Group requests the source and the Government to provide the above-
mentioned information within six months of the date of 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.
79.
The Working Group notes 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,
A/HRC/WGAD/2022/37
12
GE.22-09986
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.18
[Adopted on 8 April 2022]
18 Human Rights Council resolution 42/22, paras. 3 and 7.