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.24-01384 (E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-eighth session, 13–17 November 2023
Opinion No. 72/2023 concerning Luis Armando Cruz Aguilera (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 26 July 2023 the Working Group
transmitted to the Government of Cuba a communication concerning Luis Armando Cruz
Aguilera. The Government submitted a late response on 26 October 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/2023/72
General Assembly
Distr.: General
8 February 2024
English
Original: Spanish
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1.
Submissions
(a)
Communication from the source
4.
Luis Armando Cruz Aguilera is a Cuban national born on 7 February 2000. Mr. Cruz
Aguilera is a self-defence teacher and usually resides midway between the areas of Dolores
and Santa Isabel in the neighbourhood of Santa Amalia, located in the municipality of Arroyo
Naranjo in Havana province.
(i)
Context
5.
According to the source, Mr. Cruz Aguilera was arrested on 21 July 2021 in the
municipality of Arroyo Naranjo (Havana) by officers of the Division for Criminal
Investigations and Operations. According to the source, the alleged arbitrary detention of Mr.
Cruz Aguilera occurred against the backdrop of the mass demonstrations of 11 July 2021 and
the following days, which took place in several areas and regions of Cuba. The source states
that these peaceful and spontaneous demonstrations by thousands of Cubans occurred in
response to the gradual accumulation of serious food and medicine shortages, and the
escalation of acts of repression and restrictions of fundamental freedoms.
6.
The source states that, on 11 July 2021, the President of the Republic delivered a
televised speech in which he encouraged the authorities and other groups to violently
confront the demonstrators. The source adds that the President said the following: “We call
on all revolutionaries in the country, all communists, to take to the streets. The combat order
has been given”. As a result, individuals in civilian clothing, who did not identify themselves,
but who were actually officers of the Ministry of the Interior, and civilians from rapid
response brigades were transported to the demonstration sites in State-owned buses and
trucks in order to violently repress the demonstrators. The source adds that these individuals,
whose intentions were clearly hostile, formed human barriers in the streets to cut off the
demonstrators at all costs.
7.
According to the source, on-duty officers of section 21 of the Directorate General of
Counter-Intelligence were among those individuals in civilian clothing who did not identify
themselves. The source adds that these officers acted in concert with uniformed officers of
the National Revolutionary Police, the Special National Brigade – an anti-riot unit of the
Ministry of the Interior whose agents are known as “Black Berets” – and the Revolutionary
Armed Forces Prevention Troops (Red Berets) of the Ministry of the Revolutionary Armed
Forces, to attack and violently arrest participants in demonstrations throughout the country,
causing public disorder and sparking public anger. According to the source, these violent
arrests were accompanied by serious physical abuse, causing injuries to several
demonstrators.
8.
The source adds that, according to reports received, only demonstrators have been
prosecuted – that is, accused of and tried for crimes – while the Cuban authorities have
benefited from secrecy, a lack of transparency and impunity.
9.
According to the source, on 11 July 2021 and over the following days, the Government
shut down Internet access in an attempt to prevent the public from learning of the reprisals
against the demonstrators.
10.
The source argues that, in the particular case of Mr. Cruz Aguilera, in the afternoon
of 11 July 2021, a peaceful demonstration took place in which hundreds of citizens
participated. The demonstration, which began in the municipality of Arroyo Naranjo
(Havana) and continued into the municipality of Diez de Octubre (Havana), descended into
violence owing to the actions of the Cuban authorities and the rapid response brigades in
attempting to prevent or repress the demonstration. Along the route of the demonstration,
more and more citizens spontaneously joined the gathering. Mr. Cruz Aguilera, together with
other individuals, joined the demonstration on the street known as Calzada de Managua, in
the neighbourhood of Santa Amalia. The demonstrators were cut off during their peaceful
march along the streets known as Santa Emilia and Diez de Octubre by a human barrier
formed by the authorities. It was there that violence broke out among those present.
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(ii)
Arrest, detention, and trial proceedings
11.
The source argues that Mr. Cruz Aguilera was arrested on 21 July 2021 by the “El
Hueco” unit of the Division for Criminal Investigations and Operations of the municipality
of Diez de Octubre (Havana). The arrest involved two patrol cars of the National
Revolutionary Police with several uniformed and armed members of the Special National
Brigade, the “Black Berets”.
12.
The source argues that Mr. Cruz Aguilera did not receive prompt and full
communication of any arrest warrant. The source adds that, at the time of his arrest, he was
not informed of his rights or of how to avail himself of them. The source also adds that, after
his arrest, the detainee was denied his right to notify his family of his arrest, detention,
imprisonment or transfer from one detention centre to another, or to request the competent
authority to do so.
13.
According to the source, Mr. Cruz Aguilera only had the opportunity to be heard by a
judge six months after his arrest. In January 2022, Mr. Cruz Aguilera was brought before the
Chamber for Offences against State Security of the People’s Provincial Court of Havana,
which is located in the People’s Municipal Court of Diez de Octubre, at the junction of the
streets known as Carmen and Juan Delgado.
14.
According to the source, during his pretrial detention, Mr. Cruz Aguilera was
prevented from communicating with his family for an unjustifiably long time. He was
permitted to make a telephone call to his relatives for the first time on 12 October 2021, three
months after his arrest.
15.
The source alleges that Mr. Cruz Aguilera was also denied his right to be visited by
members of his family for about four months while he was subject to the precautionary
measure of pretrial detention. His family members were allowed to visit him for the first time
on 22 November 2021.
16.
According to the source, the aforementioned facts demonstrate that the Cuban
authorities violated 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.
17.
The source adds that Mr. Cruz Aguilera has been deprived of his liberty since his
arrest on 21 July 2021. He was initially deprived of his liberty in the “El Hueco” unit of the
Division for Criminal Investigations and Operations of the municipality of Diez de Octubre.
On 7 August 2021, he was transferred to the “100 y Aldabó” unit of the Division for Criminal
Investigations and Operations in the municipality of Arroyo Naranjo (Havana). Later, in
September 2021, he was detained in “Jóvenes de Occidente” prison in the municipality of La
Lisa (Havana). Lastly, in October 2021, he was transferred to “Combinado del Este” prison
in the municipality of Guanabacoa (Havana), where he is currently being held.
18.
According to the source, Mr. Cruz Aguilera has been the victim of physical and
psychological ill-treatment during his deprivation of liberty. He was beaten in the “100 y
Aldabó” unit of the Division for Criminal Investigations and Operations and in “Jóvenes de
Occidente” prison. The source adds that he was questioned by the police in the absence of a
legal representative.
19.
According to the source, although Mr. Cruz Aguilera is a young man with no criminal
record and excellent social standing, he was led out of prison with his hands and feet
shackled, which gave the public the false impression that he was a dangerous criminal. The
source adds that the detainee, while he was subject to the precautionary measure of pretrial
detention, was held with inmates serving custodial sentences.
20.
The source alleges that Mr. Cruz Aguilera, during his imprisonment, was held with
other inmates in an overcrowded, fetid cell in the midst of the coronavirus disease (COVID-
19) pandemic, in very poor sanitary conditions. The source adds that the cells and other
quarters in which Mr. Cruz Aguilera has been held, particularly the “100 y Aldabó” unit of
the Division for Criminal Investigations and Operations, have very poor lighting and
ventilation owing to a lack of windows or, where there are windows, their peculiar shape,
which prevents fresh air and natural light from entering unimpeded.
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21.
The source states that Mr. Cruz Aguilera’s physiological needs have not been properly
met in the detention centres, which are fetid owing to the poor or non-existent water supply.
The source adds that Mr. Cruz Aguilera has received the necessary personal hygiene products
from his relatives, as these are not provided by the detention centres in which he has been
deprived of his liberty.
22.
The source adds that Mr. Aguilera did not have the opportunity to inform his family
or other contact person immediately of his arrest, deprivation of liberty or transfer from one
detention centre to another, or of his physical and mental state.
23.
The source states that Mr. Cruz Aguilera has slept on mattresses that are malodorous,
dirty and have bedbugs owing to their having been used indiscriminately for years without
having been replaced. The source adds that the bed linen was torn, badly washed and foul-
smelling, which indicates that it had also been used indiscriminately for years without having
been replaced. As a result, Mr. Cruz Aguilera contracted scabies.
24.
The source alleges that Mr. Cruz Aguilera has been given food that is insufficient,
low-quality, poorly prepared and cold with little or no protein or vitamin content. The water
that he was given to drink was also of very poor quality, raising serious doubts about whether
it was safe to drink, and was not available consistently throughout the day, rather only at
certain limited intervals.
25.
The source adds that Mr. Cruz Aguilera has received very poor medical care to treat
the infections and diseases (scabies, dengue fever and a fungal infection) that he has
contracted during his deprivation of liberty.
26.
Accordingly, the source alleges that, in the case of Mr. Cruz Aguilera, rules 1, 13, 14,
15, 18, 19.2, 22, 24, 58, 68 and 83 of the United Nations Standard Minimum Rules for the
Treatment of Prisoners (Nelson Mandela Rules) were also violated.
27.
According to the source, the legal basis for Mr. Cruz Aguilera’s detention is title IV,
“Detention and confinement of the accused”, of Act No. 5 of 1977, the Criminal Procedure
Act, which was repealed on 1 January 2022 and replaced by Act No. 143 of 2021, the new
Criminal Procedure Act.
28.
The source adds that Mr. Cruz Aguilera was accused, among other things, of having
thrown stones at the authorities. While in pretrial detention, he was questioned under duress
by the police in the absence of his legal representative, and was informed that he was being
charged with the crime of sedition under the rubric of preliminary case file No. 143 of 2021
of the Specialized Criminal Investigation Body for Common Crimes (Havana), under the
responsibility of the Provincial Prosecutor’s Office of Havana.
29.
The source argues that Mr. Cruz Aguilera’s relatives do not receive information from
his State-appointed lawyer, who has also not shared with them the documents submitted
during the criminal proceedings, with the exception of the conviction. The source adds that
they have received no information about when the precautionary measure of pretrial detention
was imposed on Mr. Cruz Aguilera. However, the source mentions that, in the preparatory
phase of the oral proceedings, the State-appointed lawyer requested that the precautionary
measure of pretrial detention be replaced with a non-custodial measure, and that this request
was refused.
30.
The source adds that, in the written version of her preliminary conclusions, the
prosecutor assigned to the case requested that Mr. Cruz Aguilera receive a sentence of 18
years’ imprisonment. However, the prosecutor did not refer to any of the abuses or violations
of rights, criminal procedure guarantees provided for in the Constitution and the Nelson
Mandela Rules committed against Mr. Cruz Aguilera while he was deprived of his liberty.
31.
The source states that Mr. Cruz Aguilera was unjustly sentenced to 15 years’
imprisonment by conviction No. 10/2022 handed down in connection with criminal case No.
11/2021on 16 March 2022 by the Criminal Chamber of the People’s Provincial Court of
Havana. The source adds that the State-appointed lawyer filed an appeal in cassation based
on the erroneous legal classification of the crime, which was not sedition, but public disorder.
On 20 June 2022, the Chamber for Offences against State Security of the People’s Supreme
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Court, in relation to case No. 7 of 2022, issued judgment No. 13 of 2022 reducing the initial
sentence from 15 to 10 years’ imprisonment.
(iii)
Legal analysis
32.
The source submits that the detention of Mr. Cruz Aguilera falls under categories I,
II, III and V of the Working Group.
a.
Category I
33.
With respect to category I, the source states that the arrest and detention of Mr. Cruz
Aguilera are regulated by title IV, “Detention and confinement of the accused”, of Act No. 5
of 1977, the Criminal Procedure Act, which was the law applicable at the time of the events
and which was repealed on 1 January 2022 as it contained criminal procedure standards that
were abusive against persons accused of alleged criminal offences.
34.
The source adds that the combat order given by the President of the Republic not only
sparked violence against demonstrators in the streets, but also gave rise to criminal
proceedings with inquisitorial characteristics and to the physical and psychological ill-
treatment of persons deprived of their liberty. According to the source, this combat order is
the source of the wrongfulness of the events of 11 July 2021 and the following days, and the
reason for the violent clashes between Cubans with differing political and ideological views.
b.
Category II
35.
The source states that Mr. Cruz Aguilera’s deprivation of liberty constitutes a flagrant
prima facie violation by the Cuban authorities of his rights under articles 7, 18, 19 and 20 of
the Universal Declaration of Human Rights.
36.
The source states that Mr. Cruz Aguilera, in exercising his right to freedom of
expression against the Government of Cuba, was denied his rights under article 7 of the
Universal Declaration of Human Rights. The deprivation of liberty of Mr. Cruz Aguilera,
which has been marked by numerous violations of rights, guarantees, principles, rules and
procedures, unequivocally confirms that he has been left utterly defenceless.
37.
The source alleges that Mr. Cruz Aguilera has been deprived of his liberty as a result
of exercising his rights under articles 18 and 19 of the Universal Declaration of Human
Rights, given that he demonstrated against the Government of Cuba and was consequently
the victim of reprisals in the circumstances described above.
38.
The source adds that Mr. Cruz Aguilera has been deprived of his liberty as a result of
exercising his rights under article 20 of the Universal Declaration of Human Rights or
showing support for that right. No one should be repressed, arrested or deprived of their
liberty in Cuba for having participated in or supported a demonstration that was not called
by the Communist Party of Cuba and whose motive was to protest its “single party” status,
unless, of course, public order has been affected. However, in the present case, public order
was affected due to the combat order given by the President.
c.
Category III
39.
The source alleges that Mr. Cruz Aguilera’s rights under articles 9 and 10 of the
Universal Declaration of Human Rights have been violated, as he has been subjected to
arbitrary detention, with inquisitorial characteristics, under the Criminal Procedure Act. The
Cuban authorities violated, prima facie, the criminal procedure guarantees set forth in article
95 (b) and (h) of the Constitution, since they did not allow Mr. Cruz Aguilera to communicate
immediately and regularly with his relatives or his legal representative.
40.
According to the source, Mr. Cruz Aguilera was arrested without being informed of
his rights, entitlements or the reasons for his arrest. Mr. Cruz Aguilera, who had no prior
criminal record, was subject to the precautionary measure of pretrial detention, a
circumstance which allows the Cuban authorities responsible for deprivation of liberty to
exercise psychological control over detainees through coercion, threats, degrading treatment,
physical ill-treatment and isolation from the outside world, including preventing them from
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communicating with their family and legal representative for unjustifiably lengthy periods of
time.
41.
The source states that the imposition of the precautionary measure of pretrial detention
is the most drastic step that can be taken against an accused person during the preparatory
phase of oral proceedings and that, in the present case, this measure was imposed on Mr.
Cruz Aguilera instead of other, non-custodial, precautionary measures. The source adds that
the precautionary measure of pretrial detention, far from being applied as an exceptional
measure, was instead applied exclusively as an informal measure, without regard to the
personal situation of the accused person or the nature of the alleged crime and, most seriously
of all, without judicial oversight under Act No. 5 of 1977, the Criminal Procedure Act.
42.
The source alleges that, during the criminal proceedings, Mr. Cruz Aguilera was
subjected to police questioning under duress and in the absence of his legal representative, in
violation of the guarantee set forth in article 95 (b) of the Constitution. The source adds that
Mr. Cruz Aguilera has been detained in very poor conditions, with insufficient ventilation,
lighting, food and medical care, and exposure to infections, such as COVID-19, scabies and
dengue fever, all of which were detected in the prisons concerned.
43.
According to the source, the Directorate of Prisons of the Cuban Ministry of the
Interior cannot guarantee persons deprived of their liberty their basic rights, such as access
to personal hygiene products, as such products are inaccessible to millions of Cubans. The
facts described point to, in relation to the deprivation of liberty of Mr. Cruz Aguilera, prima
facie evidence of non-compliance with 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,
and rules 1, 13, 14, 15, 18, 22, 24, 58, 68 and 83 of the Nelson Mandela Rules.
44.
The source alleges that the Government of Cuba, by means of the combat order,
decided to prosecute, on charges of public disorder, assault, contempt of authority, resistance,
inciting criminal activity, spreading an epidemic and sedition, among others, all those who
participated in or supported the demonstration of 11 July 2021 and the following days. In
most cases, including that of Mr. Cruz Aguilera, these individuals have been prosecuted so
that their social, political and ideological activism can be falsely portrayed as driving the acts
carried out against the Government of Cuba.
45.
The source argues that the independent practice of law is not permitted during criminal
proceedings in Cuba and that detainees can only be represented by an organization that is
subject to the control of the Communist Party of Cuba.
d.
Category V
46.
The source argues that Mr. Cruz Aguilera is deprived of his liberty in retaliation for
supporting the mass demonstration of 11 July 2021 and the following days against the
Government. The source states that articles 41 and 56 of the Constitution, which enshrine the
right to non-discrimination and the right to demonstrate, respectively, were violated.
(b)
Response from the Government
47.
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 26 July 2023 and requested it to submit a response by 25 September
2023. The Working Group also requested the Government to provide detailed information
regarding the case of Mr. Cruz Aguilera, to clarify the legal and factual basis for his detention
and to comment on its compatibility with the State’s international human rights obligations.
On 20 September 2023, the Government requested an extension of the time limit, which was
granted by the Working Group, and the new deadline was set for 23 October 2023.
48.
The Government of Cuba submitted its response regarding the case of Mr. Cruz
Aguilera on 26 October 2023. The Working Group regrets that the Government did not
respond to the communication within the time limit. Despite the Government’s late response,
the Working Group will proceed to render an opinion on the arrest and detention of Mr. Cruz
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Aguilera, on the basis of all the information that it has received, in accordance with paragraph
16 of its methods of work.2
2.
Discussion
49.
In determining whether Mr. Cruz Aguilera’s detention is arbitrary, the Working Group
has regard to the principles established in its jurisprudence to deal with evidentiary issues. If
the source has established a prima facie case for breach of international human rights law
constituting arbitrary detention, the burden of proof should be understood to rest upon the
Government if it wishes to refute the allegations.3 Mere assertions that lawful procedures
have been followed are not sufficient to rebut the source’s allegations.
50.
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
51.
The source states that Mr. Cruz Aguilera was arrested on 21 July 2021 by officers of
the Division for Criminal Investigations and Operations, in the municipality of Arroyo
Naranjo, Havana province. The source describes the involvement in the arrest of two patrol
cars of the National Revolutionary Police with several uniformed and armed members of the
Special National Brigade. The source emphasizes that Mr. Cruz Aguilera was arrested
without being promptly shown an arrest warrant or being informed of his rights or of how to
avail himself of them.
52.
The Government, in its late response, states that Mr. Cruz Aguilera’s arrest took place
on 7 August 2021 and not on 21 July 2021, as indicated by the source. The Government states
that, as a matter of procedure, when an arrest is made, a record is drawn up and signed by the
arrested person, which establishes the time, date and reason for the arrest, and that Mr. Cruz
Aguilera was not deprived of this right.
53.
The source submits the testimony of a relative of Mr. Cruz Aguilera who mentions
that the information submitted by the Government is incorrect and that Mr. Cruz Aguilera
was actually arrested on 21 July 2021. The testimony also indicates that, at the time of the
arrest, Mr. Cruz Aguilera was beaten by State security personnel in the “El Hueco”
neighbourhood, and that the authorities did not show him an arrest warrant. The testimony
also suggests that, if there is a record signed by Mr. Cruz Aguilera after his arrest, it must
have been fabricated or include a forged date and signature, since no one informed Mr. Cruz
Aguilera of the reason for his arrest when he was arrested. The Working Group is concerned
about the discrepancy between the date of arrest mentioned by the source and the date of
arrest mentioned by the Government. The Government has access to the relevant information
and should have been able to provide accurate and substantiated details of the time and place
of the arrest. As mentioned previously, the burden of proof rests upon the Government if it
wishes to refute the source’s allegations, and, in this case, the information submitted by the
Government is inconclusive.
54.
In accordance with article 9 of the Universal Declaration of Human Rights and
principle 10 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment, the Working Group notes that anyone who is arrested must be
informed of the reasons for the arrest and of the judicial avenues for challenging its
2 Ibid.
3 A/HRC/19/57, para. 68.
4 Opinions No. 10/2018, para. 39; No. 4/2019, para. 46; No. 46/2019, para. 50; and No. 5/2020,
para. 71.
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lawfulness. Therefore, at the time of Mr. Cruz Aguilera’s arrest, the Government should have
promptly explained the reasons for the arrest in order to demonstrate that the arrest was
carried out on objective grounds and not for subjective reasons.
55.
In accordance with the information received, the Working Group concludes that there
was a violation by Cuba of article 9 of the Universal Declaration of Human Rights. This is
because the source has established that Mr. Cruz Aguilera’s arrest was carried out without
his being presented with an arrest warrant and that, despite the information provided by the
Government concerning Mr. Cruz Aguilera’s arrest, the Government did not share detailed
and substantial information with the Working Group demonstrating that Mr. Cruz Aguilera’s
right to be informed of the reason for his arrest was respected.
56.
According to the information submitted by the source, Mr. Cruz Aguilera was arrested
and taken to the “El Hueco” unit on 21 July 2023. On 7 August 2021, Mr. Cruz was
transferred to the “100 and Aldabó” unit of the Division for Criminal Investigations and
Operations. Later, in September 2021, he was detained in “Jóvenes de Occidente” prison.
Lastly, in October 2021, he was transferred to “Combinado del Este” prison, where he is
currently being held.
57.
As mentioned above, in its late response, the Government responds to the source’s
allegation only by stating that the date given by the source is incorrect and that Mr. Cruz
Aguilera was arrested on 7 August 2021.
58.
Moreover, the source indicates that Mr. Cruz Aguilera was only brought before a
judge about six months after his arrest. It was not until January 2022 that Mr. Cruz Aguilera
was brought before the Chamber for Offences against State Security of the People’s
Provincial Court of Havana.
59.
The Government, in its late response, states that Mr. Cruz Aguilera’s detention was
carried out in accordance with the provisions of the Criminal Procedure Act then in force,
that he was charged under the rubric of preliminary case file No. 143/2021 and that oral
proceedings were conducted in accordance with the provisions of the regulations in force.
The Government also reports that Mr. Cruz Aguilera’s sentence was issued and notification
of it was given within the legally established time frame, on 16 March 2022. However, the
Government does not provide detailed and substantial information about the date and
circumstances under which Mr. Cruz Aguilera was brought before a judge for the first time.
60.
The source emphasizes that, in applying the measure of pretrial detention in
accordance with the Criminal Procedure Act, there were several cases in which detained
persons were held for months without being brought before a court, as was the case for Mr.
Cruz Aguilera, who was held in pretrial detention for more than 100 days. It is for this reason
that the source argues that the law applied in Mr. Cruz Aguilera’s case contains criminal
procedure standards that are abusive against persons accused of alleged criminal offences.
61.
International human rights standards specify that the maximum time frame for
bringing a detained person before the competent authority is 48 hours and make it clear that
any delay must be absolutely exceptional and justified.5 This situation constitutes a violation
of article 9 of the Universal Declaration of Human Rights and principles 11 and 37 of the
Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment. Similarly, the Working Group recalls that, in order to be considered as having
a legal basis, the legality of a detention must be overseen by a judge, not a prosecution or
security body, as has happened in this case.6
62.
In accordance with the information received, the Working Group considers that the
Government acted in breach of international human rights law, violating article 9 of the
Universal Declaration of Human Rights, as Mr. Cruz Aguilera was not brought before a judge
within 48 hours of his arrest.
5 Opinions No. 20/2019, para. 66; No. 26/2019, para. 89; No. 36/2019, para. 36; No. 56/2019, para. 80;
No. 76/2019, para. 38; and No. 37/2022, para. 58.
6 Opinions No. 32/2020, para. 44; No. 33/2020, para. 75; and No. 37/2022, para. 58.
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63.
Moreover, the Working Group recalls that pretrial deprivation of liberty, as a
precautionary and non-punitive measure, must also comply with the principles of legality,
necessity and proportionality to the extent strictly necessary in a democratic society. It may
be imposed only within the limits strictly necessary to ensure that the efficient undertaking
of investigations is not impeded nor the action of justice evaded, and provided that the
competent authority substantiates and confirms the fulfilment of the aforementioned
requirements. Owing to the particularly restrictive nature of pretrial detention, its imposition
should be the exception, rather than the rule. The exceptional nature of pretrial detention is a
consequence of the presumption of innocence, according to which, in principle, all persons
subject to trial must be tried at liberty, liberty must be recognized as the general rule or
principle, and pretrial detention as an exception in the interests of justice. 7 Despite the
Government’s assertions that Mr. Cruz Aguilera was involved in violent protests, it provided
insufficient information to demonstrate the need for pretrial detention in these circumstances.
64.
In view of the foregoing, the Working Group considers that the detention of Mr. Cruz
Aguilera has been carried out without the guarantees set forth in article 9 of the Universal
Declaration of Human Rights, and that his detention therefore falls under category I of the
Working Group.
(b)
Category II
65.
The source claims that Mr. Cruz Aguilera has been arbitrarily detained for reasons
related to the exercise of the rights guaranteed in the Universal Declaration of Human Rights,
particularly the rights set forth in articles 7, 18, 19 and 20, relating to equal protection before
the law and the freedoms of thought, conscience, opinion, expression, assembly and
association. In its late reply, the Government denies this allegation.
66.
On the basis of all the information available to it, the Working Group notes that Mr.
Cruz Aguilera is a Cuban national born on 7 February 2000 and is a self-defence teacher. The
Working Group notes that, prior to the demonstration of 11 July 2021, Mr. Cruz Aguilera
had no criminal record.
67.
The Working Group takes account of the circumstances surrounding the
demonstration in order to fully understand the context in which charges were brought against
Mr. Cruz Aguilera and his arrest was made. According to information obtained by the
Working Group, the mass demonstrations of 11 July 2021, and the following days, were
motivated by serious food and medicine shortages, as well as the alleged escalation of acts
of repression and restrictions of fundamental freedoms in the country.
68.
The Working Group notes the source’s arguments regarding the television appearance
of the President of the Republic, in which he made provocative and inflammatory comments
encouraging the authorities and other groups to violently confront demonstrators and
allegedly included the phrase “the combat order has been given”. Following these comments,
according to information received by the Working Group, individuals in civilian clothing,
who did not identify themselves, but who were actually on-duty officers of the Directorate
General of Counter-Intelligence, the anti-riot unit (Black Berets) of the Ministry of the
Interior and the prevention unit (Red Berets) of the Ministry of the Revolutionary Armed
Forces, were transported to the demonstration sites and acted in concert with uniformed
officers of the National Revolutionary Police.
69.
The Working Group also notes the source’s arguments that the acts of violence by
some of the demonstrators seemingly began later, in response to the formation of human
barriers by officials in the streets to cut off the demonstrators. Until that moment, the
demonstration had allegedly been carried out peacefully.
70.
It appears from the information obtained by the Working Group that Mr. Cruz
Aguilera did not participate in the organization of the demonstration of 11 July 2021, but
that, together with other individuals, joined it spontaneously. The Working Group notes that
Mr. Cruz Aguilera was accused, along with other individuals, of throwing stones, bottles and
sticks at a National Revolutionary Police vehicle that they had found parked and of climbing
7 Opinion No. 37/2022, para. 60.
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on top of the vehicle. However, the Working Group affirms that the information provided by
the Government regarding Mr. Cruz Aguilera’s alleged violent conduct is not substantive
enough to demonstrate that he was specifically involved in acts of violence. Furthermore, in
considering the context of the demonstration of 11 July 2021, the Working Group considers
that officials acted contrary to their obligations to facilitate the exercise of the right to
freedom of peaceful assembly, particularly in view of the decision to form a human barrier
to cut off the demonstration, which may have contributed to the onset of violence.
71.
Regarding the right to freedom of opinion and expression, guaranteed by article 19 of
the Universal Declaration of Human Rights, the Working Group recalls that this right
includes freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers. The freedoms of opinion
and expression form a basis for the full enjoyment of a wide range of other human rights,
including the enjoyment of the right to freedom of assembly and association.
72.
The Working Group recalls that the Special Rapporteur on the promotion and
protection of the right to freedom of opinion and expression has established that: Freedom of
expression can be exercised through any sort of medium. This includes the right to participate
in demonstrations and peaceful demonstrations staged by social sectors or organizations that
wish to show their discontent with public policies, natural resource development contracts,
the attitudes adopted by civil servants or some other situation.8
73.
Based on the information obtained by the Working Group, the Government alleges
that, during the demonstration, demonstrators uttered phrases and slogans that were offensive
to the State of Cuba, inciting disorder and disregard for the authority of institutions, in
particular the Government and officials of the Ministry of the Interior.
74.
The Working Group recalls that, under international human rights law and related
standards, even offensive expressions are protected by the right to freedom of expression.
The Working Group maintains that the phrases uttered by the demonstrators during the
demonstration of 11 July 2021 do not meet the threshold for legitimate restriction established
in article 29 (2) of the Universal Declaration of Human Rights.
75.
In view of the foregoing, the Working Group maintains that, given the insufficient
evidence provided by the Government to demonstrate Mr. Cruz Aguilera’s individual violent
conduct, in conjunction with the inextricable link between the right to freedom of expression
and the right to peaceful assembly, and that the expressions of the demonstrators do not meet
the threshold required in order for freedom of expression to be restricted, the detention of
Mr. Cruz Aguilera was arbitrary under category II of the Working Group’s methods of work,
as the rights to freedom of expression and peaceful assembly enshrined in articles 19 and 20
of the Universal Declaration of Human Rights were violated.
76.
The Working Group adds that the imposition of a lengthy prison sentence can have a
chilling effect on the exercise of other human rights, including freedom of expression, and
requests the Government to avoid unduly infringing on the rights of its citizens in this way.9
(c)
Category III
77.
Given its finding that the detention of Mr. Cruz Aguilera was arbitrary under category
II, the Working Group emphasizes that no trial should have taken place. In view of the
source’s allegations, however, the Working Group will proceed to analyse whether his rights
to a fair, independent and impartial trial, with all due process guarantees, have been respected.
78.
The Working Group notes that, according to the source, Mr. Cruz Aguilera was
arrested on 21 July 2021 by officers of the Division for Criminal Investigations and
Operations. The Government has refuted this date, claiming that the arrest was made on 7
August 2021. However, the Government did not provide any evidence to support its claims.
In view of the above, the Working Group is concerned about the discrepancy between the
8 A/HRC/23/40/Add.1, para 71.
9 See opinion No. 82/2022.
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11
two dates, and about the lack of evidence submitted to the contrary, as this may suggest that
Mr. Cruz Aguilera was held in incommunicado detention.
79.
The Working Group is even more concerned about the discrepancy between the source
and the Government regarding Mr. Cruz Aguilera’s ability to contact his family. According
to the source, Mr. Cruz Aguilera was prevented from communicating with his family for an
unjustifiably long time, as he was only permitted to make a telephone call to his relatives for
the first time on 12 October 2021, three months after his arrest. The Government refutes this
assertion in its response and states that Mr. Cruz Aguilera’s mother went to the premises of
the Specialized Criminal Investigation Body for Common Crimes (the place of detention) on
10 and 17 August. However, the Working Group considers that this response lacks clarity,
as it is stated that Mr. Cruz Aguilera’s mother went to the detention centre, but it is not made
clear whether she was allowed to visit or see him, nor is any evidence of the visit provided.
According to the source, Mr. Cruz Aguilera’s mother did go to the prison on those dates but
was not allowed to see him. Although the Government mentions in its response the
restrictions placed on family visits owing to the COVID-19 pandemic, which was ongoing at
the time, it does not cite these restrictions as the reason why Mr. Cruz Aguilera’s mother was
unable to see him on 10 or 17 August. Instead, it merely states that she went to the prison on
those dates and appears to imply that she was able to see him, rather than stating that she was
unable to see him because of restrictions owing to the COVID-19 pandemic. The absence of
such an explanation raises doubts for the Working Group. The Working Group recalls its
deliberation No. 11 on prevention of arbitrary deprivation of liberty in the context of public
health emergencies, in which it noted that, even when the in-person attendance of meetings
must be restricted due to health emergencies, alternative means, such as electronic
communications, should be used. 10 Communication should be facilitated to ensure that
detainees remain in contact with their families and legal counsel. The Working Group also
notes that the Government did not refute the source’s allegation regarding the date of Mr.
Cruz Aguilera’s first telephone call, three months after his arrest.
80.
In view of the above, the Working Group recalls that the imposition of
incommunicado detention violates the right to challenge the lawfulness of detention before a
court, under article 6 of the Universal Declaration of Human Rights, and principle 6 of the
Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment.
81.
The source states that Mr. Cruz Aguilera was questioned by the police in the absence
of a legal representative, which the Government neither refuted nor denied in its response.
The source also alleges that Mr. Cruz Aguilera was questioned under duress, also in the
absence of his legal representative. The Working Group maintains that any information or
evidence obtained by the police authorities during such questioning, in which Mr. Cruz
Aguilera was under duress and was not assisted by a legal representative, would be
inadmissible in court. In addition to the questioning under duress, the source has stated that,
during his deprivation of liberty, Mr. Cruz Aguilera was the victim of physical and
psychological ill-treatment. According to the source, Mr. Cruz Aguilera was beaten in the
“100 y Aldabó” unit of the Division for Criminal Investigations and Operations and in
“Jóvenes de Occidente” prison. The Working Group notes with concern that the treatment to
which Mr. Cruz Aguilera was subjected may constitute cruel, inhuman or degrading
treatment or punishment and be incompatible with article 5 of the Universal Declaration of
Human Rights and principle 6 of the Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment.
82.
Furthermore, the source mentions that, in the preparatory phase of the oral
proceedings, the State-appointed lawyer requested that the precautionary measure of pretrial
detention be replaced and that this request was denied, to which the Government responded
that it did not even have a record of such a request. Similarly, the source reports that, in the
written version of her preliminary conclusions, the prosecutor assigned to the case does not
mention the abuses and violations of rights that took place during the criminal proceedings
against Mr. Cruz Aguilera.
10 A/HRC/45/16, annex II, paras. 20 and 21.
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83.
In accordance with the information received, the Working Group considers that, in
the case of Mr. Cruz Aguilera, the Government violated article 10 of the Universal
Declaration of Human Rights. This is because the criminal proceedings against Mr. Cruz
Aguilera were affected by his pretrial detention’s lasting more than six months, physical and
psychological ill-treatment by the authorities, a lengthy period spent in incommunicado
detention, questioning under duress and without legal representation, and a prosecution
process that did not allow him to assert his rights. The Working Group therefore concludes
that conditions were not adequate to ensure Mr. Cruz Aguilera a fair trial in compliance with
the standards established by international human rights law.
84.
The source states that Mr. Cruz Aguilera was denied his right to be presumed innocent
until proven guilty and that, although Mr. Cruz Aguilera was a young man with no criminal
record, he was led out of prison with his hands and feet shackled. Furthermore, the Working
Group wishes to recall that defendants should normally not be shackled or presented in any
manner indicating that they may be dangerous criminals, and that this action by the
Government violates Mr. Cruz Aguilera’s right to be presumed innocent under article 11 (1)
of the Universal Declaration of Human Rights.
85.
The source adds that, while he was subject to the precautionary measure of pretrial
detention, Mr. Cruz Aguilera was held with inmates serving custodial sentences, which
contravenes principles 6 and 36 of the Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment. This fact serves to compound the violation
of the right to presumption of innocence. The Working Group emphasizes that the
presumption of innocence, which is fundamental to the protection of human rights, imposes
on the Government the burden of proving the charge. This safeguard ensures that the accused
has the benefit of doubt, and requires that persons accused of a criminal act must be treated
as innocent. It is a duty for all public authorities to refrain from prejudging the outcome of a
trial.
86.
The Working Group finds that these actions impede a fair trial and violate articles 8,
10 and 11 of the Universal Declaration of Human Rights, which guarantee the right to legal
counsel, the right to an independent and impartial tribunal and the right to be presumed
innocent until proven guilty. The Working Group also recalls the questioning under duress
and in the absence of legal representation, the physical and psychological ill-treatment and
the refusal to allow contact with family for several months, all of which violates Mr. Cruz
Aguilera’s right to a fair trial.
87.
In the light of the facts described, the Working Group maintains that the detention of
Mr. Cruz Aguilera violates several principles set forth in the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment, and several rules
of the Nelson Mandela Rules.
88.
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 and impartial trial, established in articles 9,
10 and 11 of the Universal Declaration of Human Rights, is of such gravity as to give Mr.
Cruz Aguilera’s detention an arbitrary character under category III.
(d)
Category V
89.
With respect to category V, according to which the deprivation of liberty constitutes
a violation of international law when it is carried out for discriminatory reasons, the source
claims that Mr. Cruz Aguilera is being discriminated against because of his participation in
the demonstration on 11 July 2021 and because of the political message of that
demonstration. The Government denies that the arrest was carried out on discriminatory
grounds and explains that it occurred in the context of the tumultuous protests mentioned
above.
90.
The Working Group has not been convinced that Mr. Cruz Aguilera’s arrest was made
as a result of discrimination based on his political opinions or any other circumstances.
91.
Although the demonstration was motivated by discontent towards the Government,
the Working Group lacks sufficient information to establish that Mr. Cruz Aguilera was
arrested, charged or imprisoned specifically because of his political affiliation. The Working
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13
Group recalls that, according to the source, prior to the demonstration of 11 July 2021, Mr.
Cruz Aguilera had not participated in any political activity and that he spontaneously joined
the demonstration on that date. Although it may be difficult to distinguish between the
political motivations underlying a person’s participation in a demonstration, the Working
Group maintains that Mr. Cruz Aguilera was not arrested because of his political beliefs, but
because of his conduct during the demonstration, which the Working Group affirms is
protected under article 20 of the Universal Declaration of Human Rights.
92.
In view of the foregoing, the Working Group does not consider that the detention of
Mr. Cruz Aguilera was arbitrary under category V of its methods of work.
(e)
Concluding remarks
93.
The source has indicated that the sanitary conditions in the places of detention where
Mr. Cruz Aguilera was deprived of his liberty are a cause for concern. The source stated that
Mr. Cruz Aguilera has slept on mattresses that are malodorous, dirty and have bedbugs owing
to their having been used indiscriminately for years without having been replaced, and that
the bed linen was torn, badly washed and foul-smelling. The source adds that Mr. Cruz
Aguilera has been given food that is insufficient, low-quality, poorly prepared and cold with
little or no protein or vitamin content. The source alleges that the water that he has been given
to drink has also been of very poor quality, raising serious doubts about whether it was safe
to drink, and was not available consistently throughout the day, rather only at certain limited
intervals.
94.
The Government, in its late response, refutes these statements and maintains that the
Cuban prison system has the hygiene and sanitary conditions, lighting, drinking water and
ventilation necessary for inmates to serve their sentences, in accordance with the regulations
in force.
95.
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. 11 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.
3.
Disposition
96.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Luis Armando Cruz Aguilera, being in
contravention of articles 6, 9, 10, 11, 19 and 20 of the Universal Declaration of Human
Rights, is arbitrary and falls within categories I, II and III.
97.
The Working Group requests the Government of Cuba to take the steps necessary to
remedy the situation of Mr. Cruz Aguilera without delay and bring it into conformity with
the relevant international norms, including those set out in the Universal Declaration of
Human Rights.
98.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Cruz Aguilera immediately and accord
him an enforceable right to compensation and other reparations, in accordance with
international law.
99.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
11 Opinions No. 23/2012, No. 69/2012, No. 17/2013, No. 9/2014, No. 12/2017, No. 55/2017,
No. 64/2017, No. 48/2018, No. 59/2018, No. 66/2018, No. 63/2019, No. 4/2020, No. 50/2020,
No. 65/2020, No. 13/2021, No. 41/2021, No. 63/2021, No. 37/2022 and No. 52/2022.
A/HRC/WGAD/2023/72
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Mr. Cruz Aguilera and to take appropriate measures against those responsible for the
violation of his rights.
100.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
101.
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. Cruz Aguilera has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Cruz
Aguilera;
(c)
Whether an investigation has been conducted into the violation of Mr. Cruz
Aguilera’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.
102.
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.
103.
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.
104.
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.12
[Adopted on 16 November 2023]
12 Human Rights Council resolution 51/8, paras. 6 and 9.