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.23-19935 (E) 220124 230124
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on
Arbitrary Detention at its ninety-seventh session,
28 August–1 September 2023
Opinion No. 51/2023, concerning Roberto Pérez Fonseca (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 51/8.
2.
In accordance with its methods of work,1 on 5 December 2022 the Working Group
transmitted to the Government of Cuba a communication concerning Roberto Pérez Fonseca.
The Government submitted a late response on 9 March 2023. 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/2023/51
General Assembly
Distr.: General
26 October 2023
English
Original: Spanish
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1.
Submissions
(a)
Communication from the source
4.
Roberto Pérez Fonseca is a Cuban national who was born on 25 February 1983. He is
habitually resident in the municipality of San José de las Lajas, in Mayabeque Province.
(i)
Context
5.
According to the source, on 11 July 2021, peaceful and spontaneous mass
demonstrations took place in several areas and regions of Cuba, with thousands of Cubans
exercising their universal and inalienable human right to freedom of opinion and expression,
as enshrined in article 56 of the Cuban Constitution. The causes of these demonstrations were
the gradual accumulation of shortages of food and medicine and the escalation of acts of
repression and restrictions of fundamental freedoms.
6.
The source states that, in these circumstances, on the afternoon of 11 July 2021, the
President of Cuba, rather than giving a speech in support of the peaceful and spontaneous
exercise of the right to protest, which would have protected the participants, did quite the
opposite. The source claims that the President gave a televised address in which he
encouraged repressive forces and other groups to violently confront the demonstrators. The
President allegedly said that “the combat order is given”.
7.
The source alleges that individuals in civilian clothing, who did not identify
themselves, but who were actually on-duty officers of the Directorate General of
Counter-Intelligence acting in concert with uniformed officers of municipal police, riot police
and the prevention unit, attacked and violently arrested participants in the demonstrations,
causing public disorder. According to the source, these violent arrests were accompanied by
serious physical abuse, causing injuries to several protesters. Individuals in civilian clothing,
including young men doing their military service, were allegedly given pieces of wood and
baseball bats with which to beat the demonstrators. During that day and those that followed,
the Government shut down Internet access in order to prevent the public from knowing about
the reprisals inflicted on the demonstrators.
(ii)
Arrest and detention
8.
On the afternoon of 11 July 2021, Mr. Pérez Fonseca learned that an anti-government
demonstration was taking place in his neighbourhood. He spontaneously decided join the
protest. The source reports that several videos showing the demonstration, in which Mr. Pérez
Fonseca could be seen participating, circulated on social networks that day. According to the
information received, in one of the videos, Mr. Pérez Fonseca and others are seen on the
street tearing up a portrait of Fidel Castro Ruz.
9.
According to the source, upon reaching the centre of San José de las Lajas, the
demonstrators, including Mr. Pérez Fonseca, noticed the presence of the uniformed officers
of the National Revolutionary Police and decided to leave peacefully. However, as Mr. Pérez
Fonseca was leaving, he saw several police officers attempting to force a young protester into
a patrol car. Mr. Pérez Fonseca, indignant at witnessing this violent conduct, called the police
officer in question a bully. It later transpired that this officer is known as Rompehuesos
(“Bonebreaker”).
10.
The source states that, on 16 July 2021, uniformed police officers and what were
presumably on-duty officers in civilian clothing, who did not identify themselves, went to
the home of a relative of Mr. Pérez Fonseca. The officers stated that they were looking for
Mr. Pérez Fonseca so that they might speak with him. However, when he came out of the
house, he was arrested.
11.
Mr. Pérez Fonseca was taken to the San José de las Lajas municipal police unit,
without being shown an arrest warrant and without being informed of his rights. One of
Mr. Pérez Fonseca’s relatives recorded the arrest with her mobile telephone and was ordered
by the officers to report to the police station. When she went to the police station, her mobile
telephone and identity card were taken from her. She was taken to an office, where the video
recording of Mr. Pérez Fonseca’s arrest was deleted without her consent. The source reports
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that the practice of deleting photos and videos from the mobile telephones of detainees,
without their consent, is commonplace in Cuba.
12.
On 30 July 2021, Mr. Pérez Fonseca was visited for the first time by his legal
representative. This occurred 14 days after Mr. Pérez Fonseca was arrested and after he had
been subjected to police interrogation under psychological duress without the presence of a
lawyer.
13.
Mr. Pérez Fonseca was initially held at the San José de las Lajas municipal police
unit. On 5 August 2021, he was transferred to the Quivicán maximum security prison. On
8 August 2021, having been infected with coronavirus disease (COVID-19), he was
transferred to the “AIDS prison” in Mayabeque Province, before returning to the Quivicán
maximum security prison on 18 August 2021.
14.
On 22 September 2021, Mr. Pérez Fonseca was visited for the second time by his legal
representative.
(iii)
Trial proceedings
15.
On 28 September 2021, Mr. Pérez Fonseca was presented in oral proceedings before
the Criminal Chamber of the People’s Municipal Court of San José de las Lajas, Mayabeque
Province, which ruled on case No. 52/2021, opened under preliminary case file No. 394 of
2021. Mr. Pérez Fonseca was brought before the Court as if he were an extremely violent
criminal, cuffed by the hands and feet and surrounded by a large deployment of uniformed
and armed police officers, as well as police dogs.
16.
The source reports that only the witness to take the stand for the prosecution was the
police officer nicknamed Rompehuesos. The source claims that Mr. Pérez Fonseca’s defence
put forward an argument demonstrating that the indictment against him was false and
unsupported by evidence.
17.
According to the information received, the only prosecution witness stated during the
preparatory phase of the oral proceedings that Mr. Pérez Fonseca had thrown two stones, one
of which had struck the police officer’s hand and the other a car. However, the prosecution
service did not produce as evidence the stones that Mr. Pérez Fonseca had allegedly thrown.
In the source’s opinion, this shows that Mr. Pérez Fonseca was actually subjected to arrest,
detention, indictment, charges and trial owing to the fact that he tore up a portrait of Fidel
Castro during the demonstrations of 11 July 2021.
18.
On 6 October 2021, the court of first instance, namely the Criminal Chamber of the
People’s Municipal Court of San José de las Lajas, without taking into account the testimony
in Mr. Pérez Fonseca’s defence, handed him a sentence of 10 years’ imprisonment for the
offences of contempt of authority, assault, public disorder and inciting criminal activity.
19.
According to the source, this means that Mr. Pérez Fonseca was held in pretrial
detention, waiting to be brought before the court, for 104 days – from 16 July 2021, the date
of his arrest, until 6 October 2021.
20.
On 28 October 2021, 102 days after his arrest, Mr. Pérez Fonseca’s family was able
to visit him at the Quivicán maximum security prison in Mayabeque Province.
21.
The source alleges that, during Mr. Pérez Fonseca’s detention, a large number of rights
abuses and violations have occurred, including violations of the United Nations Standard
Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).
22.
It is alleged that, owing to his participation in the demonstrations of 11 July 2021,
Mr. Pérez Fonseca was subjected to physical abuse at the municipal unit of the National
Revolutionary Police of San José de las Lajas by the officer known as Rompehuesos and
other, unidentified, uniformed officers. He was allegedly subjected to police interrogation
under duress, without the presence of legal counsel. During these interrogations he was
subjected to degrading treatment. As the deprivation of liberty had inquisitorial
characteristics, he was subjected to psychological duress for a period of 104 days. Mr. Pérez
Fonseca was held for several days in a dark, foul-smelling cell with putrid water on the floor.
The source alleges that, because Mr. Pérez Fonseca went on hunger strike at the San José de
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las Lajas municipal police unit, he was subjected to further physical and psychological
ill-treatment.
23.
According to the source, Mr. Pérez Fonseca’s family members must obtain and
provide him with personal hygiene products, as the authorities are unable to ensure their
availability for detainees. This is apparently demonstrated by an injunction of 20 September
2021, issued by the Criminal Chamber of the People’s Municipal Court of Centro Habana,
Havana, whereby the convicted person was ordered to serve 10 months’ deprivation of liberty
under a subsidiary measure of correctional labour. Part of the injunction reads as follows:
I also inform you that the work to be performed at the Correctional Centre is mainly
in [a]griculture and your accommodation is a camp, so you are advised to bring a
towel, a bucket, appropriate clothing, personal hygiene products and items, etc. in
order to ensure the best living conditions for you, since these cannot be guaranteed by
the [centre].
24.
According to the information received, the authorities are unable to guarantee the
hygiene of the detainees’ bedding, including that of Mr. Pérez Fonseca. As a result of this
negligence, detainees frequently contract skin infections, the most common being scabies.
25.
The source reports that Mr. Pérez Fonseca suffers from chronic gastritis and that the
medical services available to him are very poor. The food he is given is insufficient, poor
quality and cold, with little or no protein or vitamin content. Medical services for the prison
population are known for their negligence, malpractice and lack of medicines, especially
antibiotics; these are sometimes replaced by natural remedies known as “green medicine”.
26.
According to the information received, during the first days of his pretrial detention,
following his arrest on 16 July 2021, Mr. Pérez Fonseca spent between 13 and 14 days in
total isolation from his family members and his legal counsel. On 29 July 2021, he saw his
family for the first time. Mr. Pérez Fonseca was able to contact his legal representative on
30 July 2021, 14 days after his arrest and placement in pretrial detention.
27.
Mr. Pérez Fonseca did not receive prompt and full communication of any order of
detention and he went 104 days without having the opportunity to be heard by a judge. The
Cuban authorities responsible for his arrest, detention and imprisonment failed to provide
him, at the moment of arrest, at the commencement of detention or imprisonment, or
promptly thereafter, with information on and an explanation of his rights and how to avail
himself of them. In addition, he was subjected to a long and unjustified period of
incommunicado detention during the first days of his pretrial detention.
28.
The source argues that, after arrest and after each transfer from one place of detention
or imprisonment to another, Mr. Pérez Fonseca did not enjoy the right to notify or to require
the competent authority to notify members of his family of his arrest or of subsequent
transfers. In addition, he allegedly did not enjoy the right to be visited by and to correspond
with his family.
29.
During his pretrial detention, Mr. Pérez Fonseca was interrogated by the police under
psychological duress, without the presence of his legal representative. At this time, he was
informed that he was accused of the offences of public disorder, contempt of authority,
assault and inciting criminal activity.
30.
During the criminal proceedings against Mr. Pérez Fonseca, his legal representation
was provided by a lawyer from the collective law firm of San José de las Lajas, which is part
of the National Organization of Collective Law Firms – an organization controlled by the
Communist Party of Cuba through the legal affairs departments of the Council of State and
the Central Committee.
(iv)
Legal analysis
a.
Category I
31.
The source states that, when considering the case of Mr. Pérez Fonseca, it must be
understood that article 5 of the Constitution of Cuba provides for the organization of the State
around a single political party. The source claims that this form of organization of the State
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has a bearing on any legal analysis of the decisions taken by the Cuban authorities, including
the decision to detain Mr. Pérez Fonseca.
32.
One of the most serious consequences of this form of organization is the lack of
autonomy of the branches of government. The source reports that the Communist Party of
Cuba controls not only the executive branch, but also the legislative and judicial branches. It
is alleged that the President’s “combat order” of 11 July 2021, issued with the aim of cracking
down on protesters, is reflected in the judiciary’s persecution of protesters, including
Mr. Pérez Fonseca.
33.
The arrest and detention of Mr. Pérez Fonseca are regulated by title IV, “Detention
and confinement of the accused” of Act No. 5, the Criminal Procedure Act. It is alleged that
Mr. Pérez Fonseca’s pretrial detention had inquisitorial characteristics and that he suffered
psychological control, duress, degrading treatment, frequent physical abuse and isolation at
the hands of the authorities responsible for his detention.
34.
According to the information received from the source, the imposition on Mr. Pérez
Fonseca of pretrial detention, instead of another, non-custodial, precautionary measure, is the
most drastic step that can be taken against an accused person during the preparatory phase of
oral proceedings. The source alleges that this measure was disproportionate, considering that
Mr. Pérez Fonseca had a stable family situation and a recognized domicile and there was
nothing to suggest that he would try to evade justice. The source argues that the precautionary
measure was an expression of the crackdown unleashed by the President’s “combat order”.
35.
The source stresses that, in respect of persons who demonstrated against the
Government, the precautionary measure of pretrial detention, far from being applied as an
exceptional measure, has been applied informally and without judicial oversight, as in the
case of Mr. Pérez Fonseca, and all this in accordance with the Criminal Procedure Act.
36.
According to the information received, this situation is compounded by the
precariousness, overcrowding and very poor living conditions that prevail in the prison
system, as well as its inefficiency. The source reports that the authorities cannot meet the
basic needs of the detainees, such as access to personal hygiene products.
37.
In the source’s opinion, the events described in relation to Mr. Pérez Fonseca’s
deprivation of liberty reveal a violation of rules 1, 18, 22, 24 and 58 of the Nelson Mandela
Rules and of principles 11, 13, 15, 16 and 19 of the Body of Principles for the Protection of
All Persons under Any Form of Detention or Imprisonment.
38.
The source alleges that, in relation to Mr. Pérez Fonseca’s detention, the Government
has violated article 41 of the Constitution, which recognizes and guarantees the inalienable,
imprescriptible, indivisible, universal and interdependent enjoyment and exercise of human
rights, in accordance with the principles of progressiveness, equality and non-discrimination.
It has done so by inflicting deliberate physical attacks on those, including Mr. Pérez Fonseca,
who attempted to peacefully exercise the right to protest – a universal and inalienable human
right enshrined in article 56 of the Constitution.
b.
Category II
39.
The source alleges that Mr. Pérez Fonseca’s deprivation of liberty is a violation of his
rights under articles 7, 18, 19 and 20 of the Universal Declaration of Human Rights. The
penalty imposed upon Mr. Pérez Fonseca for alleged crimes while exercising his right to
protest on 11 July 2021 is nothing more than a measure used by the Government to
criminalize protest. The right to protest is not accompanied by any legislation regulating its
exercise. This deliberate legislative vacuum has allowed the Government, through the law
enforcement authorities, to harass, suppress, humiliate, arrest, assault, prosecute and
criminalize demonstrators who are not sympathetic to the Communist Party of Cuba.
c.
Category III
40.
The source argues that Mr. Pérez Fonseca’s rights under articles 9 and 10 of the
Universal Declaration of Human Rights have been violated, as he has been subjected to
prolonged arbitrary detention, with inquisitorial characteristics, under the Criminal Procedure
Act. The source alleges that the Cuban authorities violated the criminal procedural guarantees
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set forth in article 95 (b) and (h) of the Constitution, since they neither provided him with
legal assistance from the beginning of the criminal proceedings nor allowed him to
communicate immediately with his family.
41.
The source alleges that during the criminal proceedings against Mr. Pérez Fonseca, he
was subjected to police interrogation under psychological duress and without the presence of
his legal representative.
42.
The source argues that the criminal proceedings had inquisitorial characteristics and
that the independent practice of law is not permitted in Cuba, since the legal profession, in
the form of the National Organization of Collective Law Firms – the professional
organization tasked with representing individuals in criminal proceedings – is subject to the
control of the Communist Party of Cuba. The leadership of the Communist Party of Cuba has
control over the courts, the Public Prosecution Service, investigative bodies, prosecutorial
bodies, expert witnesses, pro-government lawyers and the official mass media.
43.
According to the source, the oral trial held in the context of criminal proceedings
against Mr. Pérez Fonseca was a sham. The Court was allegedly motivated by a clear hostility
towards Mr. Pérez Fonseca for having torn up a picture of Fidel Castro during the
demonstrations of 11 July 2021. The Court gave full weight to the testimony of the only
prosecution witness, namely the officer known as Rompehuesos, who, it is alleged, showed
clear animosity towards Mr. Pérez Fonseca and used the opportunity to accuse him, without
evidence, of a list of alleged crimes. The Court only took into account the testimony of this
officer. During the trial, the Court was forced to recognize the invalidity of photographs
submitted by the prosecution, since these had not been authenticated during the investigative
process; it was also impossible to identify Mr. Pérez Fonseca in them. The prosecution
submitted a medical certificate attesting to a slight injury to the arm of Rompehuesos,
allegedly the result of a stone thrown at him during the mass demonstration. However, neither
the stone itself nor any proof that Mr. Pérez Fonseca had thrown it were put forward as
evidence.
d.
Category V
44.
Finally, the source alleges that Mr. Pérez Fonseca is being deprived of his liberty in a
discriminatory manner, as the deprivation of liberty is a reprisal for his activism in opposition
to the Government and the Communist Party of Cuba.
(b)
Response from the Government
45.
In order to be able to issue an opinion on the case described above, the Working
Group, in accordance with its methods of work, transmitted the source’s allegations to the
Government of Cuba on 5 December 2022 and requested it to submit a response by
3 February 2023. The Working Group also requested the Government to provide detailed
information regarding the case of Mr. Pérez Fonseca, to clarify the legal and factual basis for
his detention and to comment on its compatibility with the State’s international human rights
obligations. The Government submitted its response on 9 March 2023. The Working Group
regrets that the Government did not respond to the communication within the time limit.
46.
Despite the Government’s late response, the Working Group will proceed to render
an opinion on the arrest and detention of Mr. Pérez Fonseca, on the basis of all the information
that it has received, in accordance with paragraph 16 of its methods of work.2
2.
Discussion
47.
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 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.3 Mere assertions
2 A/HRC/36/38.
3 A/HRC/19/57, para. 68.
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that national legal procedures have been followed are not sufficient to rebut the source’s
allegations.
48.
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.4
(a)
Category I
49.
The source has argued that the arrest and detention of Mr. Pérez Fonseca is arbitrary
under category I. The Working Group recalls that a detention is considered arbitrary under
category I if it lacks legal basis. As the Working Group has previously stated, for a
deprivation of liberty to have a legal basis, it is not sufficient that there is a national law that
may authorize the arrest. The authorities must invoke that legal basis and apply it to the
circumstances of the case.5 This is typically done through an arrest warrant or arrest order (or
equivalent document).6
50.
In the present case, the source argues that Mr. Pérez Fonseca was arrested at his home
on 16 July 2021 by officers who did not show an arrest warrant or explain the reasons for his
arrest. The Government, in its late reply, does not mention whether or not there was an arrest
warrant. Indeed, it is unclear to the Working Group whether any arrest warrant for Mr. Pérez
Fonseca was issued. However, the provisions of international law on deprivation of liberty
include the right to be presented with an arrest warrant and to be informed at the time of the
arrest of the reasons for the arrest, which is a procedurally inherent component of the right to
liberty and security of person and the prohibition of arbitrary deprivation under articles 3 and
9, respectively, 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.7
51.
The Working Group recalls that any form of detention or imprisonment should be
ordered by a judicial or other authority under the law or be subject to the effective control of
that authority, whose status and tenure 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.
52.
In the present case and according to the information received, it appears that Mr. Pérez
Fonseca was detained without a warrant. He was also not informed at the time of arrest of
the reasons for his arrest. The Working Group therefore finds a breach of articles 3 and 9 of
the Universal Declaration of Human Rights.
53.
The source has asserted that Mr. Pérez Fonseca was held incommunicado (see
para. 26) from 16 to 29 July 2021, the date on which he was first allowed to see his family
after his arrest. The source adds that it was only on 30 July 2021 that Mr. Pérez Fonseca was
visited for the first time by his legal representative and only on 28 September 2021 that he
was brought before a judge. The Government, in its late reply, states that Mr. Pérez Fonseca
was visited by his family on 22 July 2021 and that he had legal assistance from 24 July 2021.
54.
The Working Group points out that Mr. Pérez Fonseca’s incommunicado detention
placed him outside the protection of the law, in violation of his right to recognition as a person
before the law under article 6 of the Universal Declaration of Human Rights. Moreover, as
4 Opinions No. 10/2018, para. 39; No. 4/2019, para. 46; No. 46/2019, para. 50; and No. 5/2020,
para. 71.
5 See, for example, opinions No. 46/2017, No. 66/2017, No. 75/2017, No. 93/2017, No. 35/2018,
No. 79/2018, No. 89/2020 and No. 72/2021.
6 Opinion No. 30/2017, paras. 58 and 59.
7 Opinions No. 88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39.
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the Working Group has repeatedly maintained in its jurisprudence, all detained persons have
the right to challenge the lawfulness of their detention before a court, as provided for in
articles 8 and 9 of the Universal Declaration of Human Rights.8
55.
The Working Group wishes to point out that, according to 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, the right to challenge the lawfulness of
detention before a court is a self-standing human right, which is essential to preserve legality
in a democratic society. This right, which is in fact a peremptory norm of international law,
applies to all forms and situations of deprivation of liberty and should be granted without
undue delay.
56.
In the present case, as noted above, following his arrest on 16 July 2021, Mr. Pérez
Fonseca was held incommunicado for one to two weeks and then, after being allowed contact
with his family and lawyer, did not appear before a court until 28 September 2021, some two
months after his arrest. The Working Group therefore considers that his right to challenge the
lawfulness of his detention, in accordance with articles 8 and 9 of the Universal Declaration
of Human Rights, was violated.9
57.
The Working Group wishes to stress that judicial oversight of detention is a
fundamental safeguard of personal liberty and is essential in order to ensure that detention
has a legal basis.10 The right to bring proceedings before a court to challenge the arbitrariness
and lawfulness of detention and to obtain without delay appropriate and accessible remedies
is not derogable under international law.11
58.
Taking note of the above, the Working Group concludes that the arrest and subsequent
detention of Mr. Pérez Fonseca were arbitrary under category I, as they had no legal basis.
(b)
Category II
59.
The source has stated that Mr. Pérez Fonseca was arrested merely for participating in
a spontaneous demonstration, in violation of the right to freedom of expression and the rights
to freedom of association and of peaceful assembly under articles 19 and 20 of the Universal
Declaration of Human Rights. The Government, in its late reply, asserts that Mr. Pérez
Fonseca participated in acts of violence and vandalism.
60.
In this regard, the Working Group underlines Human Rights Council resolution 24/5,
in which States are reminded of their obligation to respect and fully protect the rights of all
individuals, including persons espousing minority or dissenting views or beliefs, human
rights defenders, trade unionists and others, to assemble peacefully and associate freely.
61.
The above reflects the principle laid down by the Human Rights Council in its
resolution 12/16, in which it calls upon States to refrain from imposing restrictions that are
not consistent with international human rights law, in particular restrictions on: discussion of
government policies and political debate; reporting on human rights; participation in peaceful
demonstrations or political activities, including for peace or democracy; and expression of
opinion or dissent, religious ideas or beliefs.
62.
The Working Group stresses that, according to article 19 of the Universal Declaration
of Human Rights, everyone has the right to freedom of expression, which includes the right
to impart information and ideas of all kinds, orally or otherwise. The Working Group also
reiterates that the exercise of this right may be subject only to such restrictions as are
8 See, for example, 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 and No. 79/2018.
9 Opinions No. 45/2017, No. 46/2017, No. 35/2018, No. 9/2019, No. 44/2019, No. 45/2019,
No. 15/2020, No. 16/2020 and No. 36/2020.
10 A/HRC/30/37, paras. 2 and 3.
11 A/HRC/30/37, annex, principle 4, paras. 4 and 5. The right to challenge the lawfulness of detention
before a judicial authority is considered part of customary international law, which applies
irrespective of whether a State is party to the Covenant. See, in this regard, E/CN.4/2005/6/Add.4,
paras. 28 and 52; and opinion No. 15/2019, para. 28.
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expressly provided for by law and are necessary to ensure respect for the rights or reputations
of others or to protect national security, public order or public health or morals.12
63.
The Working Group is of the view that freedom of opinion and freedom of expression
are indispensable prerequisites for the full development of the person and constitute the
cornerstone of all free and democratic societies. Both freedoms are the basis for the effective
exercise of a wide range of human rights, including the right to the freedoms of assembly and
association and the right to political participation, as set forth in the Universal Declaration of
Human Rights.13
64.
The importance of freedom of opinion is such that no Government may impair other
human rights on the basis of a person’s actual 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.
65.
The Working Group also notes that the Special Rapporteur on the rights to freedom
of peaceful assembly and of association has stated that international human rights law only
protects assemblies that are peaceful, i.e. those that are not violent, and where participants
have peaceful intentions, which should be presumed. 14 Likewise, the Inter-American
Commission on Human Rights has indicated that the peaceful condition provided for as a
requirement for the exercise of the right of assembly does not mean that a demonstration can
be deemed non-peaceful based on the actions of a few people. Isolated acts of violence by
some participants should not be attributed to others, to the organizers or to the gathering as
such. When some individuals commit acts of violence in the context of a protest, they should
be singled out, but other demonstrators retain their right to peaceful assembly.15
66.
The Working Group specifically notes that there are no allegations that Mr. Pérez
Fonseca did anything more than shout at the police officer who was violent towards another
demonstrator. Although he was subsequently accused of violence, the Working Group is not
convinced that by his actions Mr. Pérez Fonseca lost the protection afforded to him by
articles 19 and 20 of the Universal Declaration of Human Rights.
67.
Consequently, the Working Group concludes that the arrest and detention of Mr. Pérez
Fonseca was due to the peaceful exercise of his right to freedom of assembly and association
and his right to freedom of opinion and expression, in violation of articles 19 and 20 of the
Universal Declaration of Human Rights. In view of these circumstances, the Working Group
decides to refer this case to the Special Rapporteur on the promotion and protection of the
right to freedom of opinion and expression and the Special Rapporteur on the rights to
freedom of peaceful assembly and of association, and declares the detention of Mr. Pérez
Fonseca arbitrary under category II.
(c)
Category III
68.
The Working Group will proceed to analyse whether, in the course of the judicial
proceedings, the fundamental elements of a fair, independent and impartial trial have been
respected. The right to a fair trial was established in the Universal Declaration of Human
Rights as one of the fundamental pillars of international law to protect individuals against
arbitrary treatment. To that 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 a
competent, independent and impartial court is respected.
69.
The Working Group recalls that all detained persons are entitled to challenge the
lawfulness of their detention before a court, as provided for in articles 6 and 8 of the Universal
Declaration of Human Rights. They are also entitled to legal assistance. Failure to observe
12 Opinion No. 58/2017, para. 42.
13 Opinions No. 58/2017 and No. 63/2019.
14 A/HRC/20/27, para. 25.
15 See https://www.oas.org/en/iachr/expression/publications/Protesta/ProtestHumanRights.pdf, para. 83.
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these guarantees is contrary to principles 8 and 15 of the Body of Principles for the Protection
of All Persons under Any Form of Detention or Imprisonment.
70.
According to the source, Mr. Pérez Fonseca was held in pretrial detention for about
80 days, from the time of his arrest on 16 July 2021 until 6 October 2021, when the oral
proceedings were held and he was convicted and sentenced to imprisonment. The source
argues that the pretrial detention that has been imposed on Mr. Pérez Fonseca, instead of
another, non-custodial, precautionary measure, is the most drastic step that can be taken
against an accused person during the preparatory phase of oral proceedings. The source also
claims that it was disproportionate, considering that Mr. Pérez Fonseca had a stable family
situation and a recognized domicile and there was nothing to suggest that he would try to
evade justice. The Government, in its late reply, stated that on 19 July 2021, the prosecutor
in the case imposed the measure of pretrial detention on Mr. Pérez Fonseca. According to the
Government, this measure was proportionate, since it took account of the seriousness of the
criminal acts that Mr. Pérez Fonseca had allegedly committed against public order.
71.
The Working Group points out that pretrial detention must be the exception and not
the rule and should be ordered for as short a time as possible.16 It must be based on an
individualized determination that it is reasonable and necessary for such purposes as to
prevent flight, interference with evidence or the recurrence of crime.17 Courts must consider
whether alternatives to pretrial detention, such as bail, would render detention unnecessary.
In determining whether the conditions governing pretrial detention have been met, the
Working Group examines whether the national courts have taken into account the particular
circumstances of the person concerned but does not check whether there are risks that would
make pretrial detention necessary.18
72.
The Working Group notes that, in the present case, the Government merely points to
domestic legal provisions and the alleged gravity of the crime, but does not explain what
circumstances specifically relevant to Mr. Pérez Fonseca justified the imposition of pretrial
detention between his arrest on 16 July 2021 and his oral trial on 6 October 2021.
73.
The Working Group considers that this period of time was excessive and in violation
of international norms and guarantees against arbitrary detention, set forth in article 10 of the
Universal Declaration of Human Rights and principle 11 of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment. This violation of
Mr. Pérez Fonseca’s human rights also contravenes the standard established by the Human
Rights Committee, which has observed that, in order to avoid a characterization of
arbitrariness, detention must not continue beyond the period for which the State party can
provide an appropriate justification.19
74.
During his pretrial detention, Mr. Pérez Fonseca was, according to the source,
subjected to psychological control and duress, degrading treatment, frequent physical abuse
and isolation. The Working Group therefore decides to refer the present case to the Special
Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment.
75.
Article 11 (1) of the Universal Declaration of Human Rights recognizes the right of
all accused persons to be presumed innocent. The Working Group has examined the source’s
statements and concludes that Mr. Pérez Fonseca was not arrested in flagrante delicto, but
five days after the events.
76.
Furthermore, according to the source, on the day of the hearing Mr. Pérez Fonseca
was brought before the court as if he were an extremely violent criminal, cuffed by the hands
and feet and surrounded by a large deployment of uniformed and armed police officers, as
well as police dogs. In its late reply, the Government makes no reference to this allegation.
77.
The Working Group has been emphatic as to the duty of all public authorities to refrain
from prejudging the outcome of a trial and not to take steps, such as those described above,
16 A/HRC/19/57, paras. 48–58; and opinions No. 5/2019, para. 26; No. 62/2019, paras. 27–29; and
No. 64/2020, para. 58.
17 Human Rights Committee, general comment No. 35 (2014), para. 38.
18 Opinions No. 46/2020, para. 62; No. 37/2021, para. 72; and No. 15/2022, para. 66.
19 Opinions No. 5/2019, para. 26; and No. 62/2019, paras. 27–29.
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11
that could influence the court and lead to the accused being prejudged and considered guilty
without the facts being known, thus violating the universal right to the presumption of
innocence.20
78.
The Working Group highlights that this situation, in which the right to a fair and
impartial trial and the right to due process have been violated, is all the more serious because,
according to the information from the source, Mr. Pérez Fonseca was not provided with legal
assistance from the beginning of his detention, but only one or two weeks later (according to
the source, from 30 July 2021; according to the Government, from 24 July 2021). This
situation prevented him from receiving an adequate defence and was in violation of rule 61
of the Nelson Mandela Rules.
79.
Furthermore, Mr. Pérez Fonseca’s contact with his lawyer was very sporadic, the
source indicating that the accused only met with his lawyer for the second time some two
months after the first meeting, that is, on 22 September 2021.
80.
The Working Group recalls that all persons deprived of their liberty have the right to
legal assistance by counsel immediately after their arrest, and such access must be provided
without delay. In addition, legal consultation and all communications with lawyers must
remain confidential. The lack of legal assistance during the first weeks of Mr. Pérez
Fonseca’s detention and the subsequent restriction of legal assistance prevented him from
receiving a fair trial in accordance with the principle of equality of arms and the right to
adequate time and facilities to prepare a defence, in violation of articles 10 and 11 (1) of the
Universal Declaration of Human Rights and principles 15, 17 and 18 of the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
81.
In view of these circumstances, the Working Group finds that the Government
violated standards of due process and the right to a fair and impartial trial. This is
demonstrated by the source’s account of the circumstances in which the trial of Mr. Pérez
Fonseca took place, especially the observation that the judge in the case took no account of
the witnesses that Mr. Pérez Fonseca presented during the criminal proceedings.
82.
In the light of the foregoing, the Working Group is convinced that the authorities
failed to comply with international standards relating to the right to a fair, independent and
impartial trial, as set forth in articles 9, 10 and 11 of the Universal Declaration of Human
Rights. Accordingly, the Working Group declares Mr. Pérez Fonseca’s detention arbitrary
under category III.
(d)
Category V
83.
The Working Group is not convinced that Mr. Pérez Fonseca has been detained in a
discriminatory manner because of his status as an activist in a political movement against the
Government of Cuba or because of a regular engagement in activities in defence of human
rights. From the source’s account of Mr. Pérez Fonseca’s participation in the demonstration
and his intervention in the defence of one of the protesters, it appears that these were isolated
actions. On that premise, the Working Group concludes that in the present case of arbitrary
deprivation of liberty, it is not appropriate to refer to category V.
3.
Disposition
84.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Roberto Pérez Fonseca, being in contravention of
articles 1, 3, 6, 8, 9, 10, 11, 19 and 20 of the Universal Declaration of Human Rights,
is arbitrary and falls within categories I, II and III.
85.
The Working Group requests the Government of Cuba to take the steps necessary to
remedy the situation of Roberto Pérez Fonseca without delay and bring it into conformity
with the relevant international norms, including those set out in the Universal Declaration of
Human Rights.
20 Opinion No. 40/2019, para. 119.
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86.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Pérez Fonseca immediately and accord
him an enforceable right to compensation and other reparations, in accordance with
international law.
87.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. Pérez Fonseca and to take appropriate measures against those responsible for the
violation of his rights.
88.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment, the Special Rapporteur on the promotion and protection of the right
to freedom of opinion and expression and the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, for appropriate action.
89.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
90.
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. Pérez Fonseca has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Pérez
Fonseca;
(c)
Whether an investigation has been conducted into the violation of Mr. Pérez
Fonseca’s rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of Cuba with its international obligations in line with the
present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
91.
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.
92.
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 of any failure to take action.
93.
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.21
[Adopted on 31 August 2023]
21 Human Rights Council resolution 51/08, paras. 6 and 9.