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Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its ninety-fourth session,

29 August–2 September 2022

Opinion No. 52/2022, concerning Luis Manuel Otero Alcántara and

Hamlet Lavastida (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 16 December 2021 the Working Group

transmitted to the Government of Cuba a communication concerning Luis Manuel Otero

Alcántara and Hamlet Lavastida. The Government submitted a late response on 13 May 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,

1 A/HRC/36/38.

United Nations

A/HRC/WGAD/2022/52

General Assembly

Distr.: General

17 March 2023

English

Original: Spanish

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or any other status, that aims towards or can result in ignoring the equality of human beings

(category V).

Submissions

Communication from the source

4.

The source submits the case of Luis Manuel Otero Alcántara and Hamlet Lavastida,

members of Movimiento San Isidro, a group that campaigns against the censorship of artistic

expression in Cuba. Mr. Lavastida is also a member of 27N, a group that emerged after a

demonstration by Movimiento San Isidro was broken up by the authorities. Like Movimiento

San Isidro, 27N demands more political and artistic freedom. Both groups are continuing to

campaign against Decree No. 349/2018.

Case of Mr. Otero Alcántara

5.

Luis Manuel Otero Alcántara is a Cuban artist and human rights activist who usually

resides in La Habana Vieja. According to the information received, on 11 July 2021,

Mr. Otero Alcántara used social networks to call on other citizens to join him in protests.

This was used as a pretext to arrest him on his way to a protest on the Malecón in Havana.

He has been in detention since that date and has been transferred to Guanajay Maximum

Security Prison.

6.

According to the information received, Movimiento San Isidro was established in

2018 to protest against artistic censorship and is composed of artists, writers, musicians and

other activists. The movement began when the Government sought to enforce Decree

No. 349/2018.

7.

On 16 November 2020, Mr. Otero Alcántara and 13 other members of Movimiento

San Isidro went on hunger strike to protest against the arrest of a fellow member of the

movement who had been sentenced to 8 months’ imprisonment for criminal contempt.

Government agents ended the hunger strike and disbanded the group. Officials raided

Mr. Otero Alcántara’s house, which is also the headquarters of Movimiento San Isidro, and

arrested the protesters on the grounds that they had violated the restrictions implemented in

connection with the coronavirus disease (COVID-19) pandemic. On 27 November 2020,

hundreds of people gathered to protest in front of the Ministry of Culture, demanding freedom

of expression. The source reports that, on 11 February 2021, as a consequence of the

persecution of Mr. Otero Alcántara, the Inter-American Commission on Human Rights

granted him precautionary measures.

8.

According to the source, on 16 April 2021, police officers once again raided the

headquarters of Movimiento San Isidro and confiscated and destroyed works of art by

Mr. Otero Alcántara. It is claimed that 1,018 acts of repression by government agents were

documented in April 2021, with raids on activists’ homes being the main form of harassment.

9.

The source reports that Mr. Otero Alcántara, in addition to having had works of art

illegally confiscated, was under constant surveillance. Police vehicles were parked on street

corners outside his home, and a security camera was placed in front of his door. This

effectively placed Mr. Otero Alcántara under a form of house arrest, despite his not having

been detained. According to the source, he was arrested within 100 metres of his home

approximately eight times between 17 and 25 April 2021.

10.

On 24 April 2021, Mr. Otero Alcántara was placed in detention with other prisoners,

who threatened him for eight hours. Subsequently, on 2 May 2021, he was detained after

members of the State security forces entered his home and arrested him. Mr. Otero Alcántara

had been on an eight-day hunger strike to peacefully protest against the confiscation of his

works of art and the permanent surveillance to which he was being subjected. State security

agents forcibly transferred him to the university hospital, where he was subjected to police

surveillance and forced medical treatment. He was also prevented from communicating with

his friends and family. Civil society organizations denounced the lack of transparency

surrounding Mr. Otero Alcántara’s situation. Subsequently, an application for the remedy of

habeas corpus was filed. The application was denied on 5 May 2021. Four weeks later,

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following his release from hospital on 31 May, Mr. Otero Alcántara continued his activism.

This culminated in his most recent arrest, on 11 July 2021.

11.

According to the information received, on 11 July 2021, Mr. Otero Alcántara used

social networks to call on other Cuban citizens to join him in protests. He was arrested at

4 p.m., when he was on his way to a protest on the Malecón. A plainclothes officer who had

been pretending to sweep the street approached him and arrested him.

12.

According to the source, Mr. Otero Alcantara was transferred to Villa Marista Prison,

where he was held from 11 to 15 July 2021. He was then transferred to Guanajay Maximum

Security Prison.

13.

Mr. Otero Alcántara was allegedly held incommunicado until 27 July 2021. The

source points out that prolonged incommunicado detention may facilitate torture and may in

itself constitute a form of cruel, inhuman or degrading treatment, or even torture.

14.

It was not until 3 August 2021 that Mr. Otero Alcántara was finally granted permission

to speak to a member of his family. Subsequently, on 6 August, he was allowed to speak to

his lawyer.

15.

According to the information received, Mr. Otero Alcántara was charged with

disobedience, resistance and criminal contempt under articles 134, 143 and 144 of the

Criminal Code, as a consequence of the events of April 2021. On 3 September 2021, he was

also charged with “incitement to commit an offence” and “public disorder” in connection

with the protests that occurred on 11 July 2021.

16.

On 19 September 2021, Mr. Otero Alcántara showed signs of having a fever and other

symptoms of COVID-19 in Guanajay Prison. On 27 September, he began a hunger strike,

which ended on 15 October owing to his weakened state of health. The source states that,

since 22 November 2021, trials of other persons detained in Guanajay Prison in connection

with the 11 July protests have been held without any prior warning being given to their

families or lawyers.

17.

The source states that it is impossible to know when Mr. Otero Alcántara might be

tried as the authorities have begun subjecting dozens of Cuban nationals to summary trials in

which they have been denied the right to due process. Unless he is released, his detention

will continue to put him at risk of irreversible harm.

Case of Mr. Lavastida

18.

Hamlet Lavastida is a Cuban national, born on 9 August 1983. He is an artist and

human rights activist who usually resides in Havana.

19.

According to the information received, Mr. Lavastida was deprived of his liberty on

20 June 2021 and was subsequently taken to Villa Marista Prison. At the time, he had returned

to Cuba from Berlin, where he had created works of art that criticized the Government. He

was held in detention for months without being charged or given a trial date and was

subsequently forced into exile on 25 September 2021.

20.

The source states that, on 20 June 2021, when Mr. Lavastida returned to Cuba, he was

held in a quarantine facility in accordance with the regulations relating to the COVID-19

pandemic. On 26 June, on the sixth day of his quarantine, he was transferred to Villa Marista,

a high-security prison. The source reports that the prison is notorious as a place of detention

for political prisoners.

21.

According to the source, at 10 p.m. on 26 June 2021, one of Mr. Lavastida’s family

members received a phone call from a criminal investigation officer stating that

Mr. Lavastida was being held in Villa Marista Prison and was under investigation.

Mr. Lavastida had not been formally charged. The investigator informed the family member

that he could visit the prison the following day to receive more information. Members of

Mr. Lavastida’s family went to Villa Marista the following day, but no one gave them any

information.

22.

Subsequently, in late June 2021, another family member managed to visit

Mr. Lavastida in prison. Following that visit, it was confirmed that the charges and

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investigation originated from a private conversation between members of 27N on the mobile

application Telegram. In the messages, which were leaked and discussed on national

television, Mr. Lavastida had proposed an art project consisting of marking

high-denomination banknotes with the logos of 27N and Movimiento San Isidro. The project

was never carried out.

23.

According to the information received, an application for habeas corpus filed by the

defence on behalf of Mr. Lavastida was denied on 1 July 2021. In response, on 3 July, the

Public Prosecution Service imposed a precautionary measure of pretrial detention.

24.

The source claims that Mr. Lavastida was being investigated for “incitement to

commit an offence”. However, the authorities frequently changed the charge, which

highlights the arbitrary nature of his detention.

25.

On 1 July 2021, Mr. Lavastida was reportedly injected with the medication

metoclopramide to treat severe stomach pains and bouts of vomiting brought on by the stress

of being in prison. On 2 July, Mr. Lavastida’s family members managed to visit him in prison,

although they were supervised by two investigators who allegedly tried to intimidate them

by describing Mr. Lavastida as a terrorist and a mercenary.

26.

According to the source, on 8 July 2021, a lawyer was appointed to handle

Mr. Lavastida’s case. This lawyer visited him in prison but was denied access to the case file

for the investigation.

27.

During the first month of his detention, Mr. Lavastida was reportedly subjected to

daily rounds of interrogation that could amount to psychological torture. He was held in

extremely precarious conditions and confined with criminals. He had little contact with his

family members, who were denied information about his situation. He spent many days

without seeing sunlight and, because of the unbearable heat in his cell, he had to sleep on the

floor.

28.

In early September 2021, Mr. Lavastida contracted COVID-19 in Villa Marista

Prison, where his diet had been meagre. His family was not informed about his state of health.

He was subsequently transferred to a quarantine facility in Bahia, where he remained from

2 to 7 September 2021. At that time, Mr. Lavastida was extremely weak, to the detriment of

his health and well-being, and had lost 10 kg. Following his period of isolation, however, and

despite his state of health, the only medical follow-up that he received was another

COVID-19 test.

29.

On 25 September 2021, Mr. Lavastida was forced into exile. He and a family member

were escorted by State security agents onto a plane due to fly to Poland. The source states

that, while Mr. Lavastida’s release is welcome, he should never have been arrested and

detained in the first place and should not have been forced into exile, since his so-called

offence is to create works of art.

Context and background

30.

The source alleges that the Cuban law on expression, Decree No. 349/2018, went into

effect in 2018 and requires artists, musicians and writers to receive government approval

before presenting their work in public, or even in private. The Decree empowers the Ministry

of Culture to suspend performances and completely withdraw authorization to carry out

artistic works. Appeals against these decisions may be submitted only to the Ministry of

Culture itself, as opposed to an independent and impartial body.

31.

It is argued that Decree No. 349/2018 is based on a system of laws and regulations

that threaten freedom of expression. The Decree is incompatible with international human

rights standards, endangers freedom of expression and personal liberty, and is ultimately

aimed at silencing critics of the Government. The language of the law is extremely broad and

prohibits, for example, the use of national symbols that contravene current legislation and

anything that infringes the legal provisions that regulate the normal development of Cuban

society in cultural matters.

32.

Decree No. 349/2018 therefore expands the Government’s ability to censor artistic

expression. It is against this backdrop that Movimiento San Isidro and 27N have carried out

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their campaigns and denounced the repression of artistic freedom. The source notes that,

between 2018 and 2020, there were 97 documented incidents in which artistic freedom was

violated in Cuba. These violations mainly resulted from the implementation of Decrees

No. 349/2018 and No. 370/2018, which are implemented in tandem to silence political

opinion.

33.

In 2021, the repression of artists and independent journalists was reportedly stepped

up, particularly the restrictions placed on their freedom of movement. For example, use has

been made of surveillance methods whereby police officers park outside artists’ homes and

security cameras are installed in front of their doors. Artists and journalists are prevented

from socializing with others or leaving their homes for long periods of time. If they do not

comply with these restrictions, they are threatened with imprisonment. In the source’s view,

artists and journalists are being subjected to de facto house arrest.

34.

According to the source, the pattern of persecution and prosecution suggests that the

authorities are implementing a plan to selectively repress critical artists and journalists, who

have been arrested, tortured, arbitrarily detained on trumped-up charges, subjected to sham

trials, prevented from consulting a lawyer outside the courtroom and denied medical care in

prison. The health of many of these persons has deteriorated in prison. On 1 June 2021, there

were 150 political prisoners in the country.

35.

It is claimed that the Government is fostering a climate of fear among Cuban citizens

by detaining those who criticize it. In 2020, for example, more than 1,700 arbitrary detentions

were reported. Independent experts are prevented from entering prisons and reporting on the

human rights situation. Censorship silences critics of the Government and covers up

corruption and criminality. In 2020, Cuban artists reported that their Internet access had been

cut off for at least 45 days following their participation in protests. As a result of the protests

in July 2021, Internet access was cut off for a large number of people throughout the country.

This situation prevents artists from accessing information and support abroad and from

engaging with people who are essential in providing organizational support.

36.

It is claimed that, following the protests of July 2021, more than 700 Cubans were

arrested, including artists. The Cuban authorities subsequently announced that the protesters

would be subjected to summary trials behind closed doors. The trials are said to be purely

symbolic and are conducted to strengthen the Government rather than to determine the truth

and administer justice. Detained persons are unable to consult a lawyer and are often forced

to make false confessions.

37.

The source argues that the detentions of Mr. Otero Alcántara and Mr. Lavastida were

arbitrary under categories I, II, III and V.

Category I

38.

The source alleges a violation of the rights of Mr. Otero Alcántara and Mr. Lavastida,

since neither of them was shown an arrest warrant when they were arrested on 11 July and

26 June 2021, respectively.

39.

It is claimed that, since Mr. Otero Alcántara’s arrest, he has been denied the rights

enshrined in the Constitution, which demonstrates that there is no legal basis for his detention.

For example, his right to be treated with respect for his dignity and mental and moral integrity

was violated when he was continually harassed and intimidated by officials prior to his arrest

and when he was held in incommunicado detention. Months after being arrested, Mr. Otero

Alcántara was still unaware of the charges against him. Although the Constitution establishes

the right of detained persons to communicate immediately with their families, Mr. Otero

Alcántara was held incommunicado for more than two weeks.

40.

In the source’s view, Mr. Lavastida’s arrest and detention had no legal basis either as

the officials frequently changed the charges against him. Mr. Lavastida was subjected to the

so-called dangerousness law, which empowers the Government to imprison citizens on the

basis of a suspicion that they might commit offences in the future, rather than because they

have committed an offence. This law allows for an overly broad application of State power,

enabling the Government to take action against dissent. In the case of Mr. Lavastida, the

charges and the investigation are based on private messages exchanged between members of

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27N that were subsequently leaked and discussed on national television. Although the art

project mentioned in the exchange was never carried out, Mr. Lavastida was pre-emptively

considered to be a threat to the Government and was persecuted for his views. It is argued

that, because the so-called dangerousness law is so broad and vague, it violates the principle

of legality since it is impossible to foresee what will constitute an offence and when an

offence will be committed.

41.

The source claims that Mr. Lavastida, like Mr. Otero Alcántara, was denied the right

to communicate with his family at the time of his arrest, in violation of the Constitution.

Furthermore, under the Constitution, correspondence and other forms of communication

between persons are inviolable and may be intercepted or searched only by means of a court

order issued by a competent authority in accordance with the law. In the source’s view, it is

clear that the publication of Mr. Lavastida’s messages was illegal and that, since the

information was obtained in violation of the Constitution, it cannot constitute evidence in his

trial. Even if the art project had been carried out, it would have been a completely peaceful

artistic work that would have posed no real threat to the Government.

42.

The source emphasizes that there was no legal basis for Mr. Otero Alcantara’s and

Mr. Lavastida’s detentions because their actions were entirely peaceful and did not pose any

threat to the State or to wider society.

Category II

43.

The source claims that the deprivations of liberty of Mr. Otero Alcántara and

Mr. Lavastida constitute a violation of the Universal Declaration of Human Rights and are a

consequence of their affiliation with opposition groups.

44.

Mr. Otero Alcántara and Mr. Lavastida consider themselves to be artivistas, which is

a term used to refer to persons who use their art to fight injustice. As artivistas, Mr. Otero

Alcántara and Mr. Lavastida campaign for a future in which citizens can participate and

openly exercise their freedom of opinion and expression, particularly through art, without

fear of punishment or reprisal, including the possibility of being killed. Mr. Otero Alcántara

and Mr. Lavastida campaign for the right to freedom of opinion and expression, which is

guaranteed by article 19 of the Universal Declaration of Human Rights and includes the

freedom to hold opinions without interference and to seek, receive and impart information

and ideas through any media and regardless of frontiers.

45.

Mr. Otero Alcántara and Mr. Lavastida are artists and human rights defenders who

are in the public eye and whose support for peaceful change is recognized by their fellow

citizens. However, while protesting against State censorship of their art, they have been

publicly attacked by official media outlets and the Government. The President of Cuba, for

example, is alleged to have accused Movimiento San Isidro of wanting to destroy Cuban

identity and re-subjugate Cubans and has called for the group to be crushed. In addition, the

Government refers to members of Movimiento San Isidro and other dissident groups as

“terrorists” and attacks artivistas such as Mr. Otero Alcántara and Mr. Lavastida, which

prevents them from exercising other fundamental rights protected by the Universal

Declaration of Human Rights, including the right to freedom of peaceful assembly and

association. Mr. Otero Alcántara’s detention on 11 July 2021 represents interference with his

right to peaceful assembly and association by the Government. Mr. Lavastida’s detention

prevented him from joining, organizing and participating in online and in-person protests and

discussions, which is a violation of his right to freedom of assembly, association and

expression. Mr. Otero Alcántara is in the same situation. In the source’s view, the fact that

Mr. Otero Alcántara remains in detention means that his rights under the Universal

Declaration of Human Rights continue to be violated.

46.

Article 54 of the Constitution establishes that freedom of thought, conscience and

expression is recognized, respected and guaranteed to individuals, while article 56 establishes

that the rights of assembly, demonstration and association for lawful and peaceful purposes

are recognized by the State. The source therefore concludes that the Government is in

violation of its own domestic law, in addition to international standards.

47.

It is also noted that the attacks against Mr. Otero Alcántara were arbitrary, even before

he was arrested. Despite the fact that article 13 of the Universal Declaration of Human Rights

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establishes that everyone has the right to freedom of movement and residence within the

borders of each State, Mr. Otero Alcántara was under de facto house arrest, even before he

was imprisoned. All this took place despite the fact that Cuban domestic law, like the

Universal Declaration of Human Rights, guarantees the mobility rights of persons. In

particular, article 52 of the Constitution establishes that persons are free to enter, stay in, pass

through and leave the national territory, or change their residence or domicile, without any

restrictions other than those established by law.

Category III

48.

The source alleges that the detention is arbitrary under category III, as international

standards regarding the right to a fair trial have not been observed. It is alleged that the Cuban

State, which a signatory to the Universal Declaration of Human Rights, is in violation of

articles 3 and 10 of the Declaration, which guarantee the right to liberty and security of person

and the right to a fair and public hearing.

49.

It is claimed that Mr. Otero Alcántara was denied legal assistance during the weeks

following his arrest and detention in July 2021 and was not immediately informed of the

reasons for his arrest or the charges against him. This constitutes a violation of articles 3 and

10 of the Universal Declaration of Human Rights, which provide for the right to liberty and

security of person and the right to a fair and public hearing.

50.

According to the source, Mr. Otero Alcántara’s case involves a violation of article 11

of the Universal Declaration of Human Rights, which refers to due process and establishes

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. Despite the protections guaranteed to Mr. Otero Alcántara by the Universal

Declaration of Human Rights, the Government failed to inform him of the charges against

him, which prevented him from preparing his defence and obtaining adequate legal advice.

In addition, the proceedings were unduly delayed as a date for his trial was not promptly set.

51.

For the same reasons, the source states that Mr. Lavastida’s detention also violates

articles 3, 10–11 and 14 of the Universal Declaration of Human Rights. The fact that the

authorities routinely changed the charges against him demonstrates the arbitrary nature of his

detention. Although Mr. Lavastida has legal representation, his lawyer has been denied

access to the case file relating to the investigation. Consequently, Mr. Lavastida and his

lawyer remain uninformed and are unable to prepare a proper legal defence.

52.

The source claims that the detentions of Mr. Otero Alcántara and Mr. Lavastida also

constitute a violation of articles 94 and 95 of the Constitution, which provide for the right to

legal counsel and the submission of evidence and prohibit undue delays in judicial

proceedings. All these guarantees have been denied in both cases.

Category V

53.

The source argues that Mr. Otero Alcántara and Mr. Lavastida are being discriminated

against and persecuted for their political opinions. Mr. Otero Alcántara has been repeatedly

attacked and detained by the authorities for his affiliation with Movimiento San Isidro and

for his works of art criticizing the Government. It is claimed that the Government regularly

discriminates against Mr. Otero Alcántara because of his opinions and attacks him with

fabricated accusations. His arrest and current detention are no different from his previous

arrests and detentions. Although he did not pose an imminent threat to the State, he was

prevented from joining the protests on 11 July 2021 and was therefore unable to demonstrate

in favour of democratic change. The source points out that detention in Cuba is used to

prevent people from participating in marches or peaceful assemblies to discuss politics.

54.

It is claimed that Mr. Lavastida’s detention was also arbitrary and discriminatory

because it was motivated solely by his artistic expression, of which the regime does not

approve. In the source’s view, the Government’s attacks against Mr. Otero Alcántara and

Mr. Lavastida are not isolated events, given its history of persecuting and prosecuting persons

who share dissident opinions, including artists and human rights defenders. The harassment

and intimidation of Mr. Otero Alcántara and Mr. Lavastida exemplify the Government’s

efforts to silence activists who use their art to criticize it.

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55.

The source reports that Mr. Otero Alcántara was held incommunicado until 27 July

2021 and was not granted permission to speak to a family member until 3 August. He

continues to do so twice a week, for six minutes each time. Subsequently, on 6 August, he

was allowed to speak to his lawyer.2

Response from the Government

56.

In order to be able to issue an opinion on the case,3 the Working Group transmitted

the source’s allegations to the Government on 16 December 2021, requesting it to provide a

response no later than 14 February 2022. The Working Group requested the Government to

provide detailed information on the case of Mr. Otero Alcántara and Mr. Lavastida, clarifying

the legal and factual basis for their detentions and commenting on their compatibility with

the State’s international human rights obligations. On 11 February 2022, the Government

requested an extension of the deadline and was given until 15 March 2022 to reply. The

Government responded on 12 May 2022, so the response cannot be considered to have been

received on time. The Working Group finds it regrettable that the Government did not

respond to the communication within the time limit.

57.

Despite the Government’s late response, the Working Group will proceed to render

an opinion on the arrest and detention of Mr. Otero Alcántara and Mr. Lavastida, on the basis

of all the information that it has received, in accordance with paragraph 16 of its methods of

work.4

Discussion

58.

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 law constituting arbitrary detention, the burden of proof should be understood

to rest upon the Government if it wishes to refute the allegations.5 Mere assertions that lawful

national procedures have been followed are not sufficient to rebut the source’s allegations.

59.

The Working Group wishes to reaffirm that States have an obligation to respect,

protect and uphold all human rights and fundamental freedoms, including liberty of person,

and that any national law allowing deprivation of liberty should be formulated and

implemented in conformity with the relevant international standards set forth in the Universal

Declaration of Human Rights and other applicable international instruments. Consequently,

even if a detention is in conformity with national legislation, regulations and practices, the

Working Group has a right and an obligation to assess the judicial proceedings and the law

itself to determine whether the detention is also consistent with the relevant provisions of

international human rights law.6

60.

The Working Group reiterates that it has consistently refrained from taking the place

of the national judicial authorities or acting as a kind of supranational tribunal when it is

urged to review the application of national law by the judiciary, or as a watchdog in relation

to the application of each country’s laws. Such activities fall outside the mandate of the

Working Group, which is vested with the legal capacity to observe and pronounce on the

arbitrariness of detentions in view of their compliance with international human rights law.

The Working Group cannot reassess the sufficiency of evidence or deal with errors of law

allegedly committed by national courts.7

2 The Working Group received further information that, on 24 June 2022, Mr. Otero Alcántara had

been sentenced to 5 years’ imprisonment for the offences of criminal contempt, public disorder and

failing to respect national symbols, following a trial held on 30 and 31 May 2022.

3 See A/HRC/36/38.

4 Ibid.

5 A/HRC/19/57, para. 68.

6 Opinions No. 10/2018, para. 39; No. 4/2019, para. 46; No. 46/2019, para. 50; and No. 5/2020,

para. 71.

7 See opinion No. 40/2005.

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Category I

61.

The Working Group will first consider whether there was a legal basis for the

deprivation of liberty of Mr. Otero Alcántara and Mr. Lavastida. 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 State must ensure that it is also consistent with

the relevant provisions of international law.8 It is not sufficient to invoke a national legal

norm when the case is under consideration by an international human rights protection

mechanism, since there should have been a legal basis for the detention and it should have

been applied clearly at the time of the arrest.

62.

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. Similarly, international standards

for the protection of human rights require that anyone arrested or detained on a criminal

charge should be brought before a judicial authority without delay. While the time that this

takes may vary, a “delay” is considered to be a period of 48 hours, on the understanding that

this is sufficient time to transport the individual and to prepare the court hearing; longer

periods must be absolutely exceptional and justified by specific circumstances.9

63.

The Working Group also considers that international norms protecting the right to

liberty and security of persons require the detainee’s physical presence before a judicial

authority. In this regard, the Working Group has stated on various occasions that

incommunicado detention is incompatible with international human rights law, as it violates

the right to question the legality of detention.10

64.

According to the information received, Mr. Lavastida was deprived of his liberty on

20 June 2021 and was subsequently taken to Villa Marista Prison. He was held in detention

for months without being charged or given a trial date and was subsequently forced into exile

on 25 September 2021. The Working Group wishes to recall that arbitrary detention can never

be justified, not even on grounds related to national emergency, maintenance of security or

public health.11

65.

The source reports that the detention occurred in violation of articles 3 and 9 of the

Universal Declaration of Human Rights and principles 2, 4 and 10 of the Body of Principles

for the Protection of All Persons under Any Form of Detention or Imprisonment, as

Mr. Lavastida was not shown a court order or any other decision by a competent authority

ordering the arrest.12

66.

According to the source, on 26 June 2021, one of Mr. Lavastida’s family members

received a phone call from a criminal investigation officer stating that Mr. Lavastida was

being held in Villa Marista Prison and was under investigation. Mr. Lavastida was not

formally charged. Although his family members were told that they could visit the prison the

following day to receive more information, they went to Villa Marista but no one gave them

any information about him.

67.

It was not until late June 2021 that another family member managed to visit

Mr. Lavastida in prison and confirm that the charges and the investigation were based on

private messages exchanged between members of 27N on the Telegram application. In the

messages, which were leaked and later discussed on national television, Mr. Lavastida had

proposed an art project. The project was never carried out. However, a presenter revealed

these private messages on national television.

68.

The source claims that Mr. Lavastida was being investigated for “incitement to

commit an offence”. However, the authorities allegedly changed the charge on a regular

basis, which, it is claimed, shows the arbitrary nature of his detention.

8 See opinions No. 42/2012, No. 79/2017, No. 1/2018 and No. 59/2018.

9 Opinions No. 48/2018, para. 63; and No. 59/2018, paras. 80–83.

10 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, annex), paras. 18, 75

and 93 (c) (principle 11 and guidelines 10 and 17).

11 A/HRC/45/16, annex II (deliberation No. 11).

12 Opinion No. 45/2019, para. 50. See also opinion No. 71/2019, para. 70.

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69.

According to the information received, an application for habeas corpus filed by the

defence on behalf of Mr. Lavastida was denied on 1 July 2021. In response, on 3 July, the

Public Prosecution Service imposed a precautionary measure of pretrial detention.

70.

On 2 July 2021, Mr. Lavastida’s family members managed to visit him in prison,

although they were supervised by two investigators who allegedly tried to intimidate them

by describing Mr. Lavastida as a terrorist and a mercenary.

71.

According to the source, on 8 July 2021, a lawyer was appointed to handle

Mr. Lavastida’s case. This lawyer visited him in prison but was denied access to the case file

for the investigation.

72.

During the first month of his detention, Mr. Lavastida was reportedly subjected to

daily rounds of interrogation that could arguably amount to psychological torture. He was

held in extremely precarious conditions and confined with criminals. He had little contact

with his family members, who were denied information about his situation. He spent many

days without seeing sunlight and had to sleep on the floor because of the unbearable heat in

his cell.

73.

In early September 2021, Mr. Lavastida contracted COVID-19 at Villa Marista

Prison, where his diet was meagre. His family was not informed about his state of health. He

was subsequently transferred to a quarantine facility in Bahia, where he remained from 2 to

7 September 2021. Following his period of isolation, however, and despite his state of health,

the only medical follow-up that he received was another COVID-19 test.

74.

On 25 September 2021, Mr. Lavastida was released from prison and forced into exile.

He and a family member were escorted by State security agents onto a plane due to fly to

Poland. He was not allowed to say goodbye to his family or friends. The source states that,

while Mr. Lavastida’s release is welcome, he should never have been arrested and detained

in the first place and should not have been forced into exile, since his only so-called offence

is to create works of art.

75.

In view of the above, the Working Group considers that the actions and decisions

taken with respect to the detention and exile of Mr. Lavastida have violated his rights under

articles 8 and 9 of the Universal Declaration of Human Rights.

76.

In the case of Mr. Otero Alcántara, the source has stated that he was arrested on

11 July 2021, a few steps away from his home, by a police officer who failed to identify

himself and, in violation of articles 3 and 9 of the Universal Declaration of Human Rights

and principles 2, 4 and 10 of the Body of Principles for the Protection of All Persons under

Any Form of Detention or Imprisonment, failed to show Mr. Otero Alcántara a warrant or

any other decision by a competent authority ordering the arrest.13

77.

Mr. Otero Alcántara was handcuffed and transferred to Villa Marista Prison, where

he was held from 11 to 15 July 2021. He was then transferred to Guanajay Maximum Security

Prison, where, as a consequence of the events of April 2021, he was held on charges of

disobedience, resistance and criminal contempt under articles 134 and 143–144 of the

Criminal Code. He was not allowed to speak to his lawyer until 6 August.

78.

Mr. Otero Alcántara and Mr. Lavastida were not informed of the reasons for their

arrests and were not given any explanation of the charges, which denied them the right to

challenge the lawfulness of their arrests before a court, a right that is established as a

peremptory norm of international law and applies to all forms of deprivation of liberty.14 Nor

were they arrested in flagrante delicto.

79.

The source states that Mr. Otero Alcántara was arrested approximately eight times

within 100 m of his home. Some of these arrests occurred between 17 and 25 April 2021

while others occurred on 3 September and 2 May 2021. On 16 November 2020, he was

arrested along with 13 other members of Movimiento San Isidro.

13 Ibid.

14 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, annex), para. 47 (a)

(guideline 1).

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80.

With regard to the charges brought against Mr. Otero Alcántara and Mr. Lavastida,

the Working Group has previously determined that these and similar offences are excessively

vague and overly broad, as they do not clearly define the type of criminal activity that they

are intended to punish. 15 The principle of legality requires laws to be formulated with

sufficient precision to give individuals access to and an understanding of the law and enable

them to regulate their conduct accordingly. The application of vague and overly broad

provisions in the present cases made it impossible to invoke a legal basis to justify the

detention and arrest of Mr. Otero Alcántara and Mr. Lavastida.

81.

The source reports that, in addition to having had his works of art illegally confiscated,

Mr. Otero Alcántara was under constant surveillance. He limited himself to organizing

protests against this situation. On several occasions, however, officials raided his home,

which is also the headquarters of Movimiento San Isidro, confiscating and destroying his

works of art.

82.

The Working Group maintains that, in the case of Mr. Otero Alcántara, article 20 of

the Universal Declaration of Human Rights was violated. In addition, violations were

committed when raids were carried out, without any judicial authorization or explanation, by

officials who failed to identify themselves or give reasons for their actions. These raids are

contrary to article 12 of the Universal Declaration of Human Rights. Article 19, which

protects freedom of opinion and expression in all its forms, was also violated.

83.

Both Mr. Otero Alcántara and Mr. Lavastida were denied the right to communicate

with friends and family and denied the assistance of a lawyer. They both filed applications

for habeas corpus, which were denied by the authorities.

84.

The Working Group recalls that detained persons should have access, from the

moment of arrest, to legal assistance of their own choosing, as stipulated in 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 was

denied to both of them. As they were denied legal assistance to defend their cases,16 their

ability to effectively exercise their right to challenge their detention was seriously

undermined and they were also denied the right to bring proceedings before a court that could

rule on the lawfulness of their detentions, in accordance with articles 3 and 9 of the Universal

Declaration of Human Rights and principles 17 and 32 of the Body of Principles for the

Protection of All Persons under Any Form of Detention or Imprisonment.

85.

In view of the above considerations, the Working Group considers Mr. Otero

Alcántara’s and Mr. Lavastida’s detentions to be arbitrary under category I.

Category II

86.

With regard to category II, the Working Group notes that Mr. Otero Alcántara and

Mr. Lavastida are recognized democratic artivistas, human rights defenders and members of

Movimiento San Isidro and N27, groups that combat censorship of artistic expression in Cuba

and campaign for the repeal of Decree No. 349/2018, which establishes a system of laws and

regulations that threaten freedom of expression. Mr. Otero Alcántara and Mr. Lavastida

engage in peaceful activities in support of freedom of expression and personal freedom

through art.

87.

Decree No. 349/2018 contains an extremely broad and prohibitive provision requiring

artists, musicians and writers to receive government approval before presenting their work in

public or in private. The Decree empowers the Ministry of Culture to suspend performances

and completely withdraw authorization to carry out artistic works. Appeals against these

decisions may be submitted only to the Ministry of Culture itself, as opposed to an

independent and impartial body.

88.

The Working Group stresses that political artivismo, open calls to society relating to

artistic, democratic and legal matters, and membership of civil society organizations, are

15 See opinions No. 63/2019 and No. 4/2020. See also opinion No. 65/2020, para. 78. See also

Inter-American Commission on Human Rights, Annual Report 2019, chap. IV.B, Cuba, para. 22.

16 Basic Principles on the Role of Lawyers, paras. 1 and 5.

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activities protected under international human rights law, in particular articles 19–21 of the

Universal Declaration of Human Rights. Both artists campaign for the right to freedom of

expression. The persecution of these artists violates articles 9, 19 and 20–21 of the Universal

Declaration of Human Rights as it is motivated by their activities and involvement in

opposition groups in Cuba.

89.

The importance of freedom of expression is such that no Government may infringe

human rights because of a person’s expressed or perceived opinions, whether of a political,

scientific, historical, moral, religious or any other nature. Consequently, criminalizing the

expression of an opinion is incompatible with the Universal Declaration of Human Rights.

Nor is it permissible for a person to be harassed, intimidated, stigmatized, detained or placed

in pretrial detention, prosecuted or imprisoned because of his or her views.17

90.

In view of the above, the Working Group considers that the authorities deprived

Mr. Otero Alcántara and Mr. Lavastida of their liberty for exercising their rights to freedom

of thought, conscience, opinion, expression, association and participation, as recognized and

guaranteed by articles 18–21 of the Universal Declaration of Human Rights. The detention

is therefore considered to be arbitrary under category II.

91.

The Working Group decides to refer the present case to the Special Rapporteur on the

promotion and protection of the right to freedom of opinion and expression, the Special

Rapporteur on the rights to freedom of peaceful assembly and of association and the Special

Rapporteur on the situation of human rights defenders.

Category III

92.

Since the detentions of Mr. Otero Alcántara and Mr. Lavastida were arbitrary under

category II, the Working Group also considers the trial against them to be disproportionate.

In view of the source’s allegations, however, the Working Group will proceed to analyse

whether their rights to a fair, independent and impartial trial, with all due process guarantees,

have been respected.

93.

The Working Group would take a positive view of Mr. Lavastida’s release if it had

been total. However, it finds it regrettable that he was banished from his own country, under

the conditions reported by the source.

94.

The Working Group has already concluded that, in the cases of both artists, the legal

basis for their detentions was not established, as they were not served with a warrant at the

time of arrest, their right to be promptly informed of the reasons for their detentions was not

respected, they were denied access to their lawyers, and they were unable to challenge the

lawfulness of their detentions before a court.

95.

In addition, the Working Group maintains that, in accordance with the Universal

Declaration of Human Rights, everyone has the right not to be arbitrarily deprived of his

liberty and to be presumed innocent until proven 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 where their right to be tried by an independent criminal court is respected.18 Furthermore,

the right to due process and to a fair and impartial trial is applicable to all judicial proceedings

related to the guarantees of the right to equality before the courts and tribunals and the rights

of persons to a public hearing and equality of arms. States must respect all these premises,

irrespective of their legal traditions and national laws.

96.

The Working Group is persuaded that the detentions of Mr. Otero Alcántara and

Mr. Lavastida have involved repeated violations of the presumption of innocence, guaranteed

by article 11 of the Universal Declaration of Human Rights.

97.

The Working Group is aware that the incommunicado detentions of Mr. Otero

Alcántara, from 11 July to 27 July 2021, and Mr. Lavastida, from 20 June to 2 July 2021,

severely affected their ability to prepare an adequate defence. In addition, both artists were

denied assistance by a lawyer during the weeks following their arrest and detention, and were

17 See opinions No. 61/2019 and No. 50/2020.

18 Universal Declaration of Human Rights, arts. 9–11.

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not promptly and clearly informed of the reasons for their arrest and the charges against them.

This constitutes a violation of articles 3 and 9–10 of the Universal Declaration of Human

Rights.

98.

The Working Group reiterates that accused persons should have adequate time and

facilities to prepare their defence, which implies that they should have prompt access to

lawyers of their choosing and be allowed to communicate with them privately and

confidentially. They must also be guaranteed access to the case file containing all the

documents, evidence and other materials that the prosecution intends to submit to the court.19

99.

In addition, the Working Group notes that, according to the information received, an

application for habeas corpus filed by the defence on behalf of Mr. Lavastida was denied on

1 July 2021. In response, on 3 July, the Public Prosecution Service imposed a precautionary

measure of pretrial detention.

100.

The Working Group has repeatedly stated that habeas corpus is in itself a self-standing

human right under articles 8–10 of the Universal Declaration of Human Rights.20 The right

to habeas corpus is not subject to any exceptions or derogations, even in the context of an

armed conflict. Habeas corpus constitutes the ultimate guarantee of personal liberty and

provides the possibility of challenging the lawfulness of any form or measure of deprivation

of liberty.21

101.

All the above was denied to Mr. Otero Alcántara and Mr. Lavastida, in violation of

articles 9–11 of the Universal Declaration of Human Rights. Furthermore, the source

established that Mr. Otero Alcántara has remained in detention “indefinitely” as no date has

been set for his trial, and the authorities have refused to grant him an alternative measure of

release, despite the fact that he had a fever and other symptoms of COVID-19 in the prison’s

quarantine centre.

102.

In the light of the above, the Working Group concludes that the non-observance of the

international norms relating to the right to a fair trial, established in articles 9–11 of the

Universal Declaration of Human Rights, is of such gravity as to give Mr. Otero Alcántara’s

and Mr. Lavastida’s detentions an arbitrary character under category III.

103.

The Working Group has decided to refer the present case to the Working Group on

Enforced or Involuntary Disappearances and to the Special Rapporteur on the independence

of judges and lawyers, for appropriate action.

Category V

104.

The Working Group reiterates that both artists are being persecuted in flagrant

violation of the exercise of their right to freedom of expression, which is guaranteed by article

19 of the Universal Declaration of Human Rights.

105.

The Working Group is persuaded that the detentions of Mr. Otero Alcántara and

Mr. Lavastida are essentially due to the artivismo that both have exercised, as well as to their

membership of artistic and civil society groups that have used art to campaign against the

measures taken by the Government to clamp down on freedom of expression, particularly

artistic expression in Cuba. For all these reasons, their detentions may be considered arbitrary

under category III.

106.

Therefore, the deprivations of liberty of Mr. Otero Alcántara and Mr. Lavastida are

considered to constitute a violation of articles 1 and 7 of the Universal Declaration of Human

Rights, since they were based on discrimination on the grounds of their opinions, their artistic

19 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, annex), paras. 12–15

and 67–71 (principle 9 and guideline 8).

20 E/CN.4/1993/24, para. 43 (c); E/CN.4/1994/27, para. 36; E/CN.4/1995/31, para. 45; E/CN.4/1996/40,

paras. 110 and 124.5; E/CN.4/2004/3, paras. 62, 85 and 87; E/CN.4/2005/6, paras. 47, 61, 63, 64, 75

and 78; See also A/HRC/7/4, paras. 64, 68 and 82 (a); A/HRC/10/21, paras. 53, 54 and 73; and

A/HRC/13/30, paras. 71, 76–80, 92 and 96.

21 See A/HRC/19/57.

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and political expression and their membership of Movimiento San Isidro and N27, which

renders them arbitrary under category V.

107.

The Working Group wishes to stress that this is not the first case of arbitrary

deprivation of liberty in Cuba that it has examined in recent years. The conclusions reached

by the Working Group in its Opinions on Cuba show that arbitrary detention is used

systematically.22

108.

In the light of the foregoing, the Working Group would welcome the opportunity to

undertake a visit to Cuba in order to assist the Government in addressing the concerns relating

to arbitrary detention. As a member of the Human Rights Council, Cuba is in a unique

position to demonstrate its commitment to human rights by inviting the Working Group to

undertake a visit.

Disposition

109.

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

The deprivation of liberty of Luis Manuel Otero Alcántara and Hamlet

Lavastida, being in contravention of articles 3 and 8–11 of the Universal Declaration

of Human Rights, is arbitrary and falls within categories I, II, III and V.

110.

The Working Group requests the Government of Cuba to take the steps necessary to

remedy the situation of Mr. Otero Alcántara and Mr. Lavastida without delay and bring it

into conformity with the relevant international norms, including those set out in the Universal

Declaration of Human Rights.

111.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to release Mr. Otero Alcántara immediately and

accord him and Mr. Lavastida an enforceable right to compensation and other reparations, in

accordance with international law.

112.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary detention of Mr. Otero Alcántara

and Mr. Lavastida and to take appropriate measures against those responsible for the violation

of their rights.

113.

In accordance with paragraph 33 (a) of its methods of work, the Working Group refers

the present case to the Working Group on Enforced or Involuntary Disappearances, the

Special Rapporteur on the promotion and protection of the right to freedom of opinion and

expression, the Special Rapporteur on the rights to freedom of peaceful assembly and of

association, the Special Rapporteur on the independence of judges and lawyers and the

Special Rapporteur on the situation of human rights defenders, for appropriate action.

114.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

115.

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. Otero Alcántara has been granted full liberty and, if so, on what

date;

(b)

Whether compensation or other reparations have been made to Mr. Otero

Alcántara and Mr. Lavastida;

(c)

Whether an investigation has been conducted into the violation of Mr. Otero

Alcántara’s and Mr. Lavastida’s rights and, if so, the outcome of the investigation;

22 See opinions No. 4/2020, No. 50/2020, No. 65/2020, No. 13/2021, No. 41/2021 and No. 63/2021.

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(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.

116.

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.

117.

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.

118.

The Working Group recalls that the Human Rights Council has encouraged all States

to cooperate with the Working Group and has 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.23

[Adopted on 1 September 2022]

23 Human Rights Council Resolution 42/22, paras. 3 and 7.