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.24-10132 (E) 100724 120724
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-ninth session, 18–27 March 2024
Opinion No. 13/2024 concerning Ángel Serrano Hernández, Carlos Paul
Michelena Valdés, Denis Ojeda Álvarez, Felipe Almirall, Fredy Beirut
Matos, Katia Beirut Rodríguez, Luis Frómeta Compte, Odet
Hernández Cruzata, Oscar Luis Ortiz Arrovsmeth, Reynier Reinosa
Cabrera, Robert Orlando Cairo Díaz, Roberto Pérez Ortega, Rolando
Vázquez Fleita, Walnier Luis Aguilar Rivera, Wilmer Moreno Suárez,
Yerandis Rillos Pao and Yoandry Reinier Sayu Silva (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 24 November 2023, the Working Group
transmitted to the Government of Cuba a communication concerning concerning Ángel
Serrano Hernández, Carlos Paul Michelena Valdés, Denis Ojeda Álvarez, Felipe Almirall,
Fredy Beirut Matos, Katia Beirut Rodríguez, Luis Frómeta Compte, Odet Hernández Cruzata,
Oscar Luis Ortiz Arrovsmeth, Reynier Reinosa Cabrera, Robert Orlando Cairo Díaz, Roberto
Pérez Ortega, Rolando Vázquez Fleita, Walnier Luis Aguilar Rivera, Wilmer Moreno Suárez,
Yerandis Rillos Pao and Yoandry Reinier Sayu Silva. The Government submitted a late
response on 26 February 2024. 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
* Miriam Estrada-Castillo did not participate in the discussion of the case.
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2024/13
General Assembly
Distr.: General
18 June 2024
English
Original: Spanish
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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.
Submissions
(a)
Communication from the source
(i)
Context
• Ángel Serrano Hernández is a national of Cuba, born on 27 April 1967.
• Carlos Paul Michelena Valdés is a national of Cuba, born on 19 February 1988.
• Denis Ojeda Álvarez is a national of Cuba, born on 26 December 1988.
• Felipe Almirall is a national of Cuba, born on 23 March 1960.
• Fredy Beirut Matos is a national of Cuba, born on 27 July 1957.
• Katia Beirut Rodríguez is a national of Cuba, born on 21 September 1985.
• Luis Frómeta Compte is a national of Cuba and Germany, born on 10 November 1962.
• Odet Hernández Cruzata is a national of Cuba, born on 22 September 1988.
• Oscar Luis Ortiz Arrovsmeth is a national of Cuba, born on 9 July 1999.
• Reynier Reinosa Cabrera is a national of Cuba, born on 30 September 1979.
• Robert Orlando Cairo Díaz is a national of Cuba, born on 5 May 1995.
• Roberto Pérez Ortega is a national of Cuba, born on 26 December 1985.
• Rolando Vázquez Fleita is a national of Cuba, born on 6 September 1989.
• Walnier Luis Aguilar Rivera is a national of Cuba, born on 12 February 2000.
• Wilmer Moreno Suárez is a national of Cuba, born on 13 June 1988.
• Yerandis Rillos Pao is a national of Cuba, born on 12 August 1990.
• Yoandry Reinier Sayu Silva is a national of Cuba, born on 28 May 2002.
4.
On 11 July 2021 and for several days thereafter, a series of peaceful demonstrations
took place, starting in the municipality of San Antonio de los Baños and quickly spreading
throughout the country. The Government’s reaction to the demonstrations was excessive. The
President stated on public television that the demonstrations were a front for “criminals” and
“officials of the Government of the United States” and called on the people of Cuba to “fight”
against those who questioned the Government.
5.
The source states that busloads of individuals, summoned by the Government in
coordination with the Department of State Security and the police forces of the Ministry of
the Interior and the Communist Party of Cuba, arrived and violently repressed the
demonstrators.
6.
After the demonstrations had been broken up, thousands of protesters were arrested
and prosecuted. All the persons mentioned above were arrested by the authorities between 12
and 24 July 2021 because they had taken part in the demonstrations. They were all
investigated for the offence of sedition under the same case No. 9 of preliminary case file
No. 145 of 2021, which was tried in the Provincial Court of Havana.
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(ii)
Detentions and arrests
Mr. Aguilar Rivera
7.
Against the backdrop of the demonstrations of 11 July 2021, State security agents
arrived at Mr. Aguilar Rivera’s home on 26 motorcycles and verbally informed a family
member that Mr. Aguilar Rivera had “pending business” with the police. On 20 July,
Mr. Aguilar Rivera and a family member went to the local police station of the National
Police, where he was arrested, with no justification, solely for having participated in the
demonstrations.
8.
Mr. Aguilar Rivera was disappeared for more than 21 days, during which time he was
held in a punishment and isolation cell at the “100 y Aldabó” Prison in Havana, where charges
were brought and the precautionary measure of pretrial detention was ordered. Mr. Aguilar
Rivera’s family had no contact with him for more than 30 days and it was not until 210 days
after his arrest that he was allowed his first family visit, at which time the family noted that
his state of health had significantly deteriorated because, despite having a psychosocial
disability certified by specialists, he was prosecuted, tried and sentenced as a person without
a disability.
Mr. Moreno Suárez
9.
Mr. Moreno Suárez was arrested on 17 July 2021. He was disappeared for more than
15 days and was held for more than 53 days in a punishment and isolation cell at the “100 y
Aldabó” Prison in Havana, where charges were brought and the precautionary measure of
pretrial detention was ordered. Mr. Moreno Suárez’s family had no contact with him for more
than 90 days and it was not until 120 days after his arrest that he was allowed his first family
visit.
Ms. Beirut Rodríguez
10.
Ms. Beirut Rodríguez was arrested on 19 July 2021 when she responded to a summons.
She was disappeared for more than four days, during which time she was held in a punishment
and isolation cell at “100 y Aldabó” Prison in Havana, where charges were brought and the
precautionary measure of pretrial detention was ordered. On 8 September 2021, she was
transferred without prior notification to Occidente Women’s Prison, also known as El Guatao,
in Havana. Her family had no contact with her for more than 95 days, after which time she
was allowed her first family visit.
Mr. Beirut Matos
11.
Mr. Beirut Matos was arrested on 14 July 2021. He was disappeared for more than
eight days and was held for more than 40 days in a punishment and isolation cell at “100 y
Aldabó” Prison in Havana, where charges were brought and the precautionary measure of
pretrial detention was ordered. In early September 2021, he was transferred without prior
notification to Combinado del Este Prison in Havana. Mr. Beirut Matos’ family had no
contact with him for more than 40 days and it was not until 150 days after his arrest that he
was allowed his first family visit.
Mr. Serrano Hernández
12.
Mr. Serrano Hernández was arrested on 25 July 2021. He was disappeared for more
than 31 days, during which time he was held in a punishment and isolation cell at Combinado
del Este Prison in Havana, where charges were brought and the precautionary measure of
pretrial detention was ordered. Mr. Serrano Hernández’s family had no contact with him for
more than 45 days and it was not until 60 days after his arrest that he was allowed his first
family visit. Mr. Serrano Hernández has been subjected to ill-treatment and threats of
physical harm by State security agents and was beaten by several prisoners convicted of
offences under ordinary law, with the backing of security agents.
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Mr. Almirall
13.
Mr. Almirall was arrested on 12 July 2021. Mr. Almirall has a physical impairment
that limits his mobility: he was left with a limp after an accident, for which he underwent
surgery, but the procedure did not go well and he has a rod in one of his legs that prevents
him from bending it. However, he was violently arrested by the National Police, even though
he was only at the scene to buy cigarettes. He was subsequently taken to El Vivac Detention
Centre in Arroyo Naranjo, where he was beaten for more than five days and then transferred
to “100 y Aldabó” Prison in Havana, where he was subjected to torture and degrading and
inhuman treatment for seven days to extract a confession from him. On 4 September 2021,
he was transferred to Combinado del Este Prison in Havana, where charges were brought and
the precautionary measure of house arrest was ordered. Mr. Almirall’s family had no contact
with him for more than 60 days. Since he agreed to carry out high-risk forced labour in the
area of construction, with custody, he receives a release permit once a month.
Mr. Ortiz Arrovsmeth
14.
Mr. Ortiz Arrovsmeth was arrested on 13 July 2021. He was disappeared for more
than 15 days, during which time he was held in solitary confinement in “100 y Aldabó” Prison
in Havana, where charges were brought and the precautionary measure of pretrial detention
was ordered. In early August 2021, he was transferred without prior notification to Valle
Grande Prison in Havana. His family had no contact with him for more than 20 days, after
which time he was allowed his first family visit, lasting only three minutes. He is continually
subjected to ill-treatment and threats of physical harm by State security agents.
Mr. Reynosa Cabrera
15.
Mr. Reynosa Cabrera was arrested on 15 July 2021. He was disappeared for more than
30 days, during which time he was held in a punishment and isolation cell at “100 y Aldabó”
Prison in Havana, where charges were brought and the precautionary measure of pretrial
detention was ordered. In early August 2021, he was transferred without prior notification to
Valle Grande Prison in Havana. Mr. Reynosa Cabrera’s family had no contact with him for
more than 30 days and it was not until more than 45 days after his arrest that he was allowed
his first family visit. He is continually subjected to ill-treatment and threats of physical harm
by State security agents.
Mr. Sayu Silva
16.
Mr. Sayu Silva was arrested on 19 July 2021. He was initially taken to the Capri unit
of the National Revolutionary Police, where he was brutally beaten. He was subsequently
disappeared for more than 30 days, during which time he was held in a punishment and
isolation cell at “100 y Aldabó” Prison in Havana, where charges were brought and the
precautionary measure of pretrial detention was ordered. Mr. Sayu Silva’s family had no
contact with him for more than 30 days and it was not until almost two years after his arrest
that he was allowed his first visit from family members as, prior to that, they had been allowed
only to bring him supplies. Mr. Sayu Silva was beaten by nine inmates who had been detained
for offences under ordinary law, with the backing of State security agents.
Mr. Cairo Díaz
17.
Mr. Cairo Díaz was arrested on 13 July 2021. His family had no verbal or physical
contact with him for nine days, during which time he was held at “100 y Aldabó” detention
and torture centre. He was subsequently transferred to Combinado del Este Prison in Havana,
where charges were brought and the precautionary measure of pretrial detention was ordered.
He is currently being held in detention and his state of health is very poor.
Mr. Ojeda Álvarez
18.
Mr. Ojeda Álvarez was arrested on 15 July 2021. His family had no contact with him
for 75 days, during which time he was held in solitary confinement in Ivanov Prison, in the
municipality of Cotorro. He was then taken to the Criminal Investigations and Operations
Division in “100 y Aldabó” Prison in Havana, a centre specifically dedicated to interrogation
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and torture, and then to the maximum security Combinado del Este Prison in Havana.
Charges were brought and a precautionary measure of pretrial imprisonment was ordered.
During the criminal trial hearings, when the defendant stated that a charge brought against
him was false, the guards beat him. Mr. Ojeda Álvarez was subjected to interrogation and
physical, verbal and psychological violence as a form of torture, harassment and bullying.
Mr. Pérez Ortega
19.
Mr. Pérez Ortega was arrested on 17 July 2021. His family had no contact with him
for several days, during which time he was held in solitary confinement at Combinado del
Este Prison in Havana, where charges were brought and the precautionary measure of pretrial
detention was ordered. Mr. Pérez Ortega was subjected to beatings by State security agents.
Ms. Hernández Cruzata
20.
On 15 July 2021, the National Police authorities went to Ms. Hernández Cruzata’s
home without an arrest warrant or any apparent legal grounds for doing so. Upon learning of
the incident, Ms. Hernández Cruzata decided to go to the Capri unit of the National
Revolutionary Police to seek information. When she arrived, she was arrested solely for
having allegedly participated peacefully in the protests of 12 July 2021. She was disappeared
for more than 15 days, during which time she was held in a punishment and isolation cell at
“100 y Aldabó” Prison in Havana, where charges were brought and the precautionary
measure of pretrial detention was ordered. Ms. Hernández Cruzata’s family had no contact
with her for more than 15 days and it was not until more than 90 days after her arrest that she
was allowed her first family visit.
Luis Frómeta Compte
21.
Mr. Frómeta Compte was arrested on 17 July 2021. He was disappeared for more than
eight days, during which time he was held in a punishment and isolation cell at “100 y Aldabó”
Prison in Havana, where charges were brought and the precautionary measure of pretrial
detention was ordered. In early 2021, without prior notification, he was transferred to
Combinado del Este Prison in Havana. His family had no contact with him for 20 days, after
which time he was allowed his first family visit.
Mr. Vázquez Fleita
22.
Mr. Vázquez Fleita was arrested on 21 July 2021, when, in response to a summons,
he reported to the Capri unit of the National Revolutionary Police, where he was held for
15 days. He was subsequently disappeared for more than 60 days, during which time he was
held in a punishment and isolation cell at “100 y Aldabó” Prison in Havana, where charges
were brought and the precautionary measure of pretrial detention was ordered. In the first
few days of August 2021, he was transferred without prior notification to Valle Grande Prison
in Havana. Mr. Vázquez Fleita’s family had no contact with him for more than 75 days and
it was not until more than 100 days after his arrest that he was allowed his first family visit.
Mr. Vázquez Fleita was subjected to a beating by three State security agents.
Mr. Rillos Pao
23.
Mr. Rillos Pao was arrested on 26 July 2021. He was disappeared for more than two
days, during which time he was held in a punishment and isolation cell at “100 y Aldabó”
Prison in Havana, where charges were brought and the precautionary measure of pretrial
detention was ordered. Subsequently, he was transferred without prior notification to
Combinado del Este Prison in Havana. His family had no contact with him for 30 days, after
which time he was allowed his first family visit.
Mr. Michelena Valdés
24.
Mr. Michelena Valdés was arrested on 12 July 2021. During his arrest he was brutally
beaten, leaving him with a serious head wound. He was taken to Miguel Enríquez Hospital,
where the wound was closed with six stitches. At around 9 p.m. he was transferred to the
Capri unit of the National Revolutionary Police. He was subsequently disappeared for more
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than 30 days, during which time he was held in a punishment and isolation cell at Combinado
del Este Prison in Havana, where charges were brought and the precautionary measure of
pretrial detention was ordered. His family had no contact with him for the first 30 days of his
detention.
25.
According to the source, the precautionary measure of pretrial detention was ordered
in 16 of the cases while house arrest was ordered in one case. In every case, the measure was
taken without legal protection and ordered by the criminal investigation police and the
prosecution service. The state of health of most of the 17 detained persons was evidently
deteriorating owing to poor sanitation, lack of food and water, and lack of medical treatment
and medication. Almost all of them and their families are subjected to torture, ill-treatment
and continual persecution by the authorities.
(iii)
Trial proceedings
26.
The source states that the authorities fabricated a story and tried the 17 individuals,
handing down sentences at first instance ranging from 15 to 26 years’ imprisonment,
including a sentence of 23 years for a person with a psychosocial disability. The authorities
accused them of “extreme violence” but they were peaceful demonstrators. Only 2 of the
17 protesters were arrested on 12 July. A year after the arrests, following the filing of
applications for judicial review by the families, international pressure caused the courts to
reduce the custodial sentences by between 8 and 18 years.
27.
The source states that Court reproduces the prosecutor’s statement in the “proven facts”
section of the first instance judgment.2 Furthermore, the source fails to understand how both
the prosecutor’s statement and the judgment can claim that the situation described constituted
a “climate of violence”. The words “violence” and “extreme violence” occur throughout the
prosecutor’s indictment, but not a single State official or non-demonstrating citizen cited any
injuries during the entire criminal proceedings. No criminality can be deduced from an
analysis of the indictment and the “proven facts” of the judgment, both of which are identical.
In the Court’s ruling, the 17 defendants are described in defamatory and offensive terms that
violate their privacy and the presumption of innocence. Offences are even attributed to
persons recognized as having no criminal record.
(iv)
Legal analysis
28.
According to the source, the Government of Cuba engaged in at least six patterns of
conduct that violate articles 2, 3, 7–13 and 18–20 of the Universal Declaration of Human
Rights. The source maintains that the detentions of the 17 persons mentioned are arbitrary
and fall within categories I, II, III and V of the Working Group.
a.
Categories I and III
Lack of arrest warrants and judicial oversight, and use of pretrial detention
29.
The source states that none of the detained persons was shown an arrest warrant at the
time of arrest or shortly thereafter. In addition, principle 4 of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment was violated
because in no case was the judiciary involved in, or informed of, these detentions. Neither
the families nor the detained persons have copies of, or access to, the arrest warrants or
detention orders issued by the prosecutor. In none of the cases was there any judicial
protection. There is also evidence that judicial functions are carried out by staff who are not
part of the judiciary. The source recalls that State agents undertaking judicial duties within
the framework of criminal proceedings must be professional judges and comply with the
requirement of being independent of the executive branch and the parties.3 In the present case,
none of these criteria is fulfilled.
2 People’s Provincial Court of Havana, judgment No. 5 of 2022.
3 European Court of Human Rights, Nikolova v. Bulgaria, judgment of 25 March 1999, application
No. 31195/96.
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30.
In proceedings that took place prior to 1 January 2022, the Criminal Procedure Act
(No. 5 of 1977) granted full powers to police officers known as “investigators”. After 24
hours of police custody, the investigating police officer had an additional 72 hours (additional
to the initial 24) to keep the defendant in custody and make a further decision. The prosecutor
then had an additional 72 hours in which to make a decision on the recommendation of the
investigating police officer. At no point during these 168 hours (that is, seven days) does any
judge take part in the procedure defined in the Act. Therefore, no judge is even informed of
the detentions carried out by the police, the investigating police officer and the public
prosecutor’s office.
31.
The precautionary measures thus defined were extended for the individuals mentioned
in this communication, without any involvement by a judge throughout the investigation
stage, which has a maximum duration of six months. However, the time afforded for the
investigation, and the pretrial detention that is closely linked to it, can be extended by law as
long as necessary. Only the approval of the Attorney General, that is, another agent of the
State who does not form part of the judiciary, is required.
32.
All the individuals in this case have been subjected to arrests and pretrial detention
lasting more than 24 hours. In most of the cases, pretrial detention lasted more than six
months and in many of the cases it lasted significantly longer. This amounts to a sort of
advance punishment that disregards the human rights relating to the presumption of
innocence and the fact that the adoption of precautionary measures restricting the right to
liberty should have been authorized by an independent and impartial court.
Lack of independent defence lawyers
33.
The source notes that the lack of independent lawyers in Cuba has been highlighted
by the Working Group on numerous occasions.4 The Committee against Torture has also
raised concerns about this issue.5
34.
The above implies that two violations of the Universal Declaration of Human Rights
have occurred: a violation of article 11, in that the right to a defence has been restricted, and
a violation of article 10, concerning equal treatment before the law and independent and
impartial tribunals. None of the persons referred to in this communication was assisted at any
time by independent counsel.
35.
In Cuba, there are no independent defence lawyers, since they are officially,
hierarchically and financially dependent on the Government. In the present case, it was the
lawyers of the defendants themselves (in the vast majority of cases) who requested that
sentences for the offence of sedition and other offences be handed down to their defendants.
Lack of judicial independence and impartiality
36.
According to the source: (a) judges in Cuba are not appointed on the basis of academic
excellence or an independent examination governing entry to the legal profession and lay
judges are not randomly selected from among the population; rather, the procedure for
admission involves an administrative verification of a candidate’s alignment with the relevant
“morals” and their degree of “prestige” or “standing” – concepts that have not been clearly
defined – as assessed and monitored by the Communist Party of Cuba; and (b) anyone who
intends to continue working as a judge must necessarily align himself or herself with the
dictates of the Communist Party of Cuba.
37.
The mass organizations that constitute the political arm of the Communist Party of
Cuba, such as the National Assembly of People’s Power and other elective bodies in Cuba,
are those that propose, approve and establish lists of candidates. Therefore, the delegates of
the National Assembly must either belong to the Communist Party or be loyal supporters of
the Party’s leaders in order to correctly and effectively carry out their roles.
38.
The functions of the National Assembly include electing and removing the Attorney
General of the Republic, the Deputy Attorney Generals, the President of the People’s
4 Opinions No. 63/2019 and No. 63/2021.
5 CAT/C/CUB/CO/3, paras. 14 and 15.
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Supreme Court, the Vice-Presidents and judges of the People’s Supreme Court, and the lay
judges of the Court. The fact that the Assembly is controlled by, and dependent on, the
Communist Party means that the Party directly controls and influences the manner in which
the public prosecutor’s office and the courts carry out their functions.
39.
The source states that the result of this pattern of conduct is that all the individuals
referred to in this communication were tried by dependent and biased judges. This violates
article 10 of the Universal Declaration of Human Rights.
Lack of independent experts and witnesses
40.
The source states that one of the key principles of the application of justice is equality
of arms, as it is directly related to article 7 of the Universal Declaration of Human Rights and
indirectly related to article 10.
41.
Independent experts must be “experts” and “independent” or be considered experts
representing one of the parties, whose testimonies have significantly less value for
evidentiary purposes.6 Moreover, court-appointed independent experts should not be officials
of the State when the State itself is a party to the proceedings, since they would effectively
lose their neutrality, thereby invalidating the assessment that the court may make of their
opinion. In Cuba there is no such thing as an independent expert in criminal matters. Under
the Criminal Procedure Act, experts in all cases participate at the request of the “acting
authority” and never at the request of the defence.
b.
Category II
42.
The arrests and subsequent prosecutions, conducted on the basis of the legal grounds
put forward by the competent courts, give rise to conclusions pointing to a conflict with
articles 19 and 20 of the Universal Declaration of Human Rights, namely, that any opponent
who demonstrates against the Government is liable to be charged with a criminal offence.
The courts responsible for trying persons accused of participating in the demonstrations of
11 July 2021 have provided no justification for the conclusion that the impact on public order
was sufficiently serious as to justify such a severe restriction of the right to freedom of
demonstration and expression. Lastly, the criminal charges against the defendants are so
ambiguous that any action might fall within their scope of application, in violation of article
11 (2) of the Universal Declaration of Human Rights, relating to the principle of legality.
43.
The source notes that the prosecutorial documents and court documents in the present
case discredit demonstrators for speaking out against the system and its leaders, and this
classification constitutes the primary argument used by the prosecution and the courts.
44.
The 17 individuals were charged with the offence of sedition under article 100 of the
Criminal Code (article 122 of the new Criminal Code), which was in force until 1 December
2022. The source adds that persons accused of this offence can be sentenced to up to 30 years’
imprisonment and can even be handed the death penalty.
45.
The Inter-American Commission on Human Rights has stated that the terms used in
the law could make it possible to criminalize social protest, civic activism or any criticism of
government authorities.7 The Committee against Torture has also raised concerns about the
offence of sedition.8
46.
The wording of the criminal offence contains a number of elements that de facto
criminalize the exercise of the right to freedom of expression, demonstration and association,
as enshrined in articles 19 and 20 of the Universal Declaration of Human Rights. In the case
of the 17 individuals, it was found that no detailed justification for charging the demonstrators
of 11 July 2021 with the offences concerned was given, since any conduct relating to the
6 European Court of Human Rights, Bönisch v. Austria, judgment of 6 May 1985, application
No. 8658/79.
7 Report No. 27/18, document OEA/Ser.L/V/II.167, doc. 32, paras. 91 and 92.
8 See CAT/C/CUB/CO/3.
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demonstrations, such as simply displaying banners or accompanying the march, was classed
as criminal.
c.
Category V
47.
The deprivation of liberty of the 17 persons constitutes a violation of international law
in that it is an act of discrimination on the basis of opinion, disregarding the principle of
equality of human beings with regard to thought, expression, assembly and demonstration.
(b)
Response from the Government
48.
The Working Group, in accordance with its methods of work, transmitted the source’s
allegations to the Government on 24 November 2023, requesting it to provide detailed
information on the situation of the 17 persons by 23 January 2024 and to clarify the legal and
factual grounds justifying their detention, as well as the compatibility of these grounds with
the international human rights obligations of Cuba. On 17 January 2024, the Government
requested an extension of the deadline and was given until 22 February 2024 to reply.
49.
The Government sent its response on 26 February 2024, after the previously
established deadline. The Working Group therefore cannot treat the Government’s reply as if
it had been submitted before the deadline.
2.
Discussion
50.
The Working Group regrets that it did not receive a timely response from the
Government to the communication. In the absence of a timely response from the Government,
and on the basis of all the information that the Working Group has received, the Working
Group has decided to render the present opinion in conformity with paragraph 16 of its
methods of work.
51.
In determining whether the deprivation of liberty of the 17 persons 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.9 Mere assertions that lawful
procedures have been followed are not sufficient to rebut the source’s allegations.
(a)
Category I
Lack of arrest warrant
52.
The source states that none of the 17 persons was presented with an arrest warrant –
in the sense of a written order setting out the reason for restricting his or her liberty – either
at the time of arrest or at any other point in the proceedings. The source adds that no judge
was even informed of the 17 arrests. In its late response, the Government claims that, in each
of the 17 cases, records of arrest were issued and signed by the individuals in question.
53.
The Working Group notes that none of the arrested persons was arrested while
participating in the protests of 11 and 12 July 2021. Most of them were arrested several days
later, in different locations. According to the source, two of the arrested persons were arrested
on 12 July. The first of them, Mr. Almirall, was arrested while buying cigarettes. The second,
Mr. Michelena Valdés, was arrested a few days later, according to the Government. In neither
case does the Government explain why an arrest warrant was not obtained prior to the arrest.
In addition, the Working Group notes that the Government has not submitted detailed
information on the detention orders issued against the 17 persons. The Working Group recalls
that there is a difference between a detention order and a record of detention, and that a
detention order requires the approval of a judicial authority, as stipulated in principle 4 of the
Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment. Likewise, principle 11 (2) establishes that “a detained person and his counsel,
9 A/HRC/19/57, para. 68.
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if any, shall receive prompt and full communication of any order of detention, together with
the reasons therefor”.
54.
The Working Group has already stated that it is not sufficient that there is a law that
may authorize the arrest; the authorities must invoke that legal basis and apply it to the
circumstances of the case, normally through an arrest warrant.10 The source states that two of
the individuals – Mr. Almirall and Mr. Michelena Valdés – were arrested on 12 July 2021,
which was close in time to the protests. In its late response, the Government does not state
that these persons were arrested in flagrante delicto, but that they were arrested on 15 and 16
July, respectively. On the basis of this information, the Working Group does not consider that
sufficient explanation has been given as to why arrest warrants were not shown to the 17
persons at the time of their arrests. This violates article 9 of the Universal Declaration of
Human Rights.
Judicial oversight
55.
The source states that there was no judicial oversight of the initial arrest in any of the
17 cases. In its late response, the Government does not address this argument directly.
56.
Principle 37 of the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment provides that any “person detained on a criminal charge
shall be brought before a judicial or other authority provided by law promptly after his arrest.”
International human rights standards specify that the maximum time limit for bringing a
detained person before the competent authority is 48 hours and make clear that any delay
must be absolutely exceptional and justified.11
57.
The Government does not provide sufficient information to show that any of the
detained persons were brought before a judge to challenge their detention within 48 hours of
their initial deprivation of liberty. Although the persons in question were eventually brought
before the courts, this took place well after the 48-hour deadline for challenging the grounds
for the arrest. On the basis of the information received, the Working Group considers that the
detention of the 17 persons was not subject to judicial oversight, in violation of article 9 of
the Universal Declaration of Human Rights.
The role of “investigators”
58.
The source states that personnel who are not part of the judiciary – the police officers
known as “investigators” and the prosecutor – carried out judicial functions. The source states
that the Criminal Procedure Act in force at the time empowered investigators to subject
arrested persons to a precautionary measure of partial deprivation of liberty lasting 24 hours
and that, after this period of police custody, the investigating officer had an additional 72
hours in which to keep the person in custody and make a decision. The source adds that the
prosecutor then had an additional 72 hours in which to make a decision. According to the
source, in none of the cases was any judge part of the process or even informed of the
detentions carried out by the police, the investigating police officer and the public
prosecutor’s office during these 168 hours, or seven days in total. The judge did not become
involved until the case had been referred to the court at the end of the preliminary phase. The
Government did not refute these claims in its response but merely pointed out that the
prosecutor’s power to impose provisional measures is established by law.
59.
The Working Group recalls that, even if a detention is in conformity with national law,
regulations and practice, this does not automatically mean that it is also compatible with
international law. Principle 9 of the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment provides that the authorities which arrest a person
may exercise only the powers granted to them under the law and that, most relevantly for
these 17 cases, the exercise of these powers must be subject to recourse to a judicial or other
authority.12 The Working Group also recalls principle 4, which states that “any form of
10 Opinions No. 10/2018, para. 45; and No. 46/2019, para. 51.
11 Opinions No. 20/2019, para. 66; and No. 26/2019, para. 89.
12 Human Rights Committee, general comment No. 35 (2014), para. 32. See also opinion No. 45/2019,
para. 52.
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11
detention or imprisonment and all measures affecting the human rights of a person under any
form of detention or imprisonment shall be ordered by, or be subject to the effective control
of, a judicial or other authority.” The Working Group considers that a prosecuting body
cannot be considered a judicial authority for the purposes of proceedings of this type.
60.
The Working Group considers that, in these 17 cases, the investigating police officers
and the prosecutor took on the role of judges or judicial officers. In order to be considered as
having a legal basis, the legality of a detention must be overseen by a judge and not a
prosecution or security body. The above constitutes a violation of article 9 of the Universal
Declaration of Human Rights.
Pretrial detention
61.
The source notes that, in every case except that of Mr. Almirall, who was sentenced
to house arrest, the investigating police officers and the prosecutor ordered pretrial detention
for the arrested persons. In its late response, the Government states that, in the case of
Mr. Almirall, the precautionary measure of pretrial detention applied by the prosecutor was
replaced with that of house arrest pending criminal proceedings. The Working Group notes
that, aside from in this case, the Government provides no explanation or justification of the
legal basis for placing the other 16 persons in pretrial detention.
62.
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, use of this measure 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. In the
interests of justice, liberty should be recognized as a general principle or rule, and pretrial
detention as an exception.13 Despite the Government’s assertions that the 17 individuals were
involved in allegedly violent protests, it has not provided sufficient information to
demonstrate the need for pretrial detention in these circumstances.
63.
The Working Group considers that the detention of the 17 individuals has been carried
out without the guarantees set forth in article 9 of the Universal Declaration of Human Rights,
and that their detention is therefore arbitrary and falls within category I.
64.
The Working Group also notes that pretrial detention was ordered by prosecutors and
not by judges. There is no indication that the detained persons could have appealed against
this decision before a judge. This also constitutes a violation of their right, under article 9 of
the Universal Declaration of Human Rights, not to be subjected to pretrial detention in the
absence of an individualized judicial assessment.14
(b)
Category II
65.
The source notes that the 17 persons concerned in the present case have been
arbitrarily detained for reasons relating to their exercise of the rights protected under
articles 18–20 of the Universal Declaration of Human Rights relating to the freedoms of
thought, conscience, opinion, expression, assembly and association. It further states that the
Government’s reaction to the demonstrators was excessive in that it deployed persons to use
violence, in coordination with the Department of State Security and the police forces of the
Ministry of the Interior and the Communist Party of Cuba. It also claims that none of the
pro-government individuals or the thousands of armed plain-clothes military personnel have
been prosecuted in connection with the acts of violence carried out against the demonstrators.
In its late response, the Government denies this allegation, arguing that the 17 individuals
were detained for their violent conduct during the protests.
13 Opinion No. 37/2022, para. 60.
14 Opinions No. 14/2020; and No. 63/2021, paras. 91–93.
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66.
The Working Group notes the source’s arguments relating to the judgment of the court
of first instance, which is a copy of the prosecutor’s statement. It also considers that the
Government has not provided detailed and substantiated information demonstrating that the
arrested persons were responsible for acts of violence, or incitement to violence, of sufficient
gravity as to have been considered to have exceeded the limits of freedom of expression.
Therefore, the actions in question constitute an exercise of freedom of expression and
assembly guaranteed by articles 19 and 20 of the Universal Declaration of Human Rights,
and do not appear to meet the threshold for legitimate limitation set out in article 29 (2) of
the Universal Declaration of Human Rights.
67.
Despite the Government’s claims of alleged “violence” and “extreme violence”, the
allegations that it makes do not relate to the conduct of individuals but to violence in a broad
sense and in plural terms. The Government’s late response does not provide sufficient
information on each individual case and the allegedly violent acts related to it. Therefore, the
use of deprivation of liberty as a response does not conform to the principles of legality,
necessity and proportionality.
68.
Contrary to what the Government’s late response appears to imply, holding a
demonstration is not in itself a criminal act but the exercise of a human right enshrined in
article 20 of the Universal Declaration of Human Rights. In considering the context of the
demonstration of 11 July 2021, the Working Group maintains that the officials acted contrary
to their obligations to facilitate the right to freedom of peaceful assembly. This particularly
applies to the incendiary comments and orders to fight issued by the President of Cuba on
television and, following these comments, the allegedly violent repression of the
demonstrations by the security forces.
69.
The Working Group recalls that, in accordance with international human rights law
and related standards, even offensive expressions are protected by the right to freedom of
expression, as set out in article 19 of the Universal Declaration of Human Rights. The phrases
uttered by the demonstrators during the demonstration of 11 July 2021 do not meet the
threshold for legitimate limitation established in article 29 (2) of the Universal Declaration
of Human Rights.
70.
The Working Group maintains that the detention of the 17 persons was arbitrary under
category II, 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.
71.
The Working Group adds that the imposition of lengthy prison sentences can have a
chilling effect on the exercise of other human rights, including the right to freedom of
expression, and requests the Government to avoid unduly infringing on the rights of its
citizens in this way.15
72.
The source states that all the individuals referred to in the present communication have
been charged with the offence of sedition under article 100 of the Criminal Code in force
prior to 1 December 2022, which is punishable by a sentence of up to 30 years’ imprisonment
or even the death penalty. The arbitrariness and ambiguity of this definition, as applied to
protesters, is such that any action may be considered punishable. In its late response, the
Government argues that the decision to apply the offence of sedition provided for harsh
penalties but is commensurate with the level of violence in the conduct of the detained
persons, which caused injuries and endangered lives. However, the Government mentions
acts of violence only in a broad sense and in plural terms.
73.
The Working Group considers the offence of sedition in Cuba to be a subjective and
loosely defined criminal offence.16 Like the Committee against Torture, the Working Group
requests the Government of Cuba to consider amending the provisions of the Criminal Code
with a view to ending detention on the basis of subjective, vague and imprecise criminal
concepts such as posing a danger to society without having committed a criminal act and
sedition.17
15 See opinion No. 82/2022.
16 Report No. 27/18, document OEA/Ser.L/V/II.167, doc. 32, paras. 91 and 92.
17 CAT/C/CUB/CO/3, paras. 26 and 27.
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13
(c)
Category III
74.
Given its finding that the detention of the 17 persons was arbitrary under category II,
the Working Group wishes to emphasize that no trial should have taken place. However, in
the light of the source’s allegations, the Working Group will proceed to analyse whether, in
the course of the judicial proceedings, the fundamental components 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.
Incommunicado detention
75.
The source states that the 17 detained persons were held incommunicado for several
days or even weeks, for periods ranging from 2 to 60 days, while they were in pretrial
detention without judicial protection. During this period, the detained persons were held in a
punishment and isolation cell in “100 y Aldabó” Prison or in Combinado del Este Prison,
both of which are in Havana. They had no verbal or physical contact with their family
members. During this period, charges were brought and precautionary measures of pretrial
detention were ordered with no judicial protection.
76.
The Government claims that this information is incorrect and even gives different
dates for the arrests in 6 of the 17 cases. The Working Group is concerned about this
discrepancy between the dates given by the source and those given by the Government,
especially as the Government does not provide sufficient information in support of the
chronology of the events that it mentions.
77.
Even if the dates of detention given by the Government were accepted as valid, there
would still be periods of several days during which the detained persons were unable to
contact the outside world. The Working Group recalls that incommunicado detention violates
the right to challenge the lawfulness of detention before a court, as provided for in articles 8
and 9 of the Universal Declaration of Human Rights18 and principle 15 of the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
78.
With regard to Mr. Serrano Hernández, however, the Government provided detailed
information indicating that he was visited the day after his arrest by his brother and his lawyer.
In its subsequent comments, the source refutes the claim that Mr. Serrano Hernández’s
brother visited him but does not address the claim regarding the lawyer. On this basis, the
Working Group cannot determine whether Mr. Serrano Hernández was subjected to
incommunicado detention.
Questioning without respect for safeguards
79.
According to the source, the questioning of the 17 detained persons by the police took
place without the presence of legal counsel. The Government has limited itself to refuting
this claim by stating that they were assisted by lawyers for their defence in accordance with
the law, without referring to the dates of the rounds of questioning or the circumstances in
which they took place.
80.
The source also claims that, during the questioning of the 17 detained persons, at least
two were subjected to torture and degrading and inhuman treatment. In the case of
Mr. Almirall, the Government claims that the source falsified the dates and that he was
granted house arrest on 3 September 2021. While the Working Group acknowledges that the
information provided by the source about Mr. Almirall’s house arrest matches that provided
by the Government, it is important to note that the decision in question was not taken until
4 September 2021, according to the source, or one day earlier, according to the Government.
Mr. Almirall therefore spent more than one and a half months in detention and the violation
of his guarantees to have legal representation during questioning and not to be subjected to
torture or degrading and inhuman treatment could have occurred prior to his house arrest.
81.
In the case of Mr. Ojeda Álvarez, the source reports that he was subjected to physical,
verbal and psychological violence during questioning and was even beaten by the guards
18 Opinion No. 41/2021, para. 107.
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GE.24-10132
when he denied false allegations during the hearings that formed part of the criminal
proceedings.
82.
The Working Group recognizes that the 17 detained persons were questioned under
duress without legal representation and held in incommunicado detention as part of the
criminal proceedings against them, which had a negative impact on the prosecution process
and restricted their ability to assert their rights.
83.
In view of the above, the Working Group finds that the Government violated article
10 of the Universal Declaration of Human Rights and principles 6 and 11 of the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
Presumption of innocence
84.
According to the source, the judgment issued by the court describes the 17 detained
persons in defamatory terms that violate their privacy and the presumption of innocence. On
several occasions, criminal attitudes are attributed to persons who subsequently, in the same
court judgment, are recognized as having no criminal record, which violates the privacy and
presumption of innocence of the detained persons. The Government makes no reference to
this allegation in its late response.
85.
The Working Group recognizes the importance of respect for the presumption of
innocence19 and takes note of the source's allegation that the main findings in the judgment
against the detained persons were copied from the prosecutor’s indictment. The source also
mentions the cases of Mr. Serrano Hernández, Mr. Sayu Silva and Mr. Cairo Díaz, who were
in pretrial detention and were held with inmates serving custodial sentences. In these cases,
the physical safety of these three persons was in imminent danger and Mr. Serrano Hernández
and Mr. Sayu Silva were beaten by a number of inmates.
86.
The Government’s response did not provide any clarification concerning this claim.
The Working Group recognizes that the decision to hold persons in prison together with
prisoners serving custodial sentences 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 the presumption of innocence.20
87.
The source refers to the cases of Mr. Almirall and Mr. Michelena Valdés, who were
held in pretrial detention and subjected to aggression and violence while in detention. In the
case of Mr. Michelena Valdés, the brutality was such that he sustained a head injury during
his arrest, for which he was taken to hospital. These facts aggravate the violation of
principles 6 and 36 of the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment. In its response, the Government limited itself to
mentioning that the dates of detention given in both cases are incorrect and that both periods
of detention took place after the dates mentioned by the source. It did not refer to the claim
that violence was used during the arrest.
88.
The Working Group finds that the Government violated the detained persons’ right to
the presumption of innocence recognized in article 11 of the Universal Declaration of Human
Rights.
Legal assistance
89.
The source states that none of the 17 persons had an expert, legal and independent
defence throughout the criminal proceedings, except for the lawyers provided by the
Government through the National Organization of Collective Law Firms, who report to the
Ministry of Justice. In most cases, these lawyers did not prepare a proper defence but acted
as supplementary prosecutors.
90.
In its late response, the Government refutes the above and states that, in 16 of the
17 cases considered, the detained persons appointed their own counsel. A court-appointed
lawyer was assigned to Mr. Almirall since, unlike the rest of the detained persons, he did not
19 Human Rights Committee, general comment No. 32 (2007), para. 30.
20 Opinion No. 72/2023, para. 85.
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15
propose one of his own choosing. It also rejects the claim that the National Organization of
Collective Law Firms has a direct relationship with the Government, depends on the Ministry
of Justice or receives funding from the State, although it does acknowledge that lawyers in
Cuba need to be admitted by this organization.
91.
The right to legal assistance is a fundamental safeguard of a fair trial.21 With regard to
the evidence that the detained persons were represented by lawyers, the Working Group
considers that it cannot make a definitive statement on the violation of guarantees owing to
the lack of detailed information on how the irregularities in the Cuban legal profession
affected each of the 17 cases considered. However, the Working Group reiterates its concerns
about the independence of the National Organization of Collective Law Firms and urges the
Government to guarantee this independence.22
Equality of arms
92.
The source claims that all the prosecution witnesses in the trial were prominent
members of the Government and the ruling party, although they presented themselves as
citizens. The only expert witness in the case was a captain of the State security forces. No
independent experts were allowed. In its response, the Government provides no clear
justification for the lack of independent experts or the limited range of prosecution and
defence witnesses.
93.
In the opinion of the Working Group, the defence did not have access to the evidence,
which contravenes the right of accused persons to defend themselves and to receive effective
legal assistance, in violation of article 10 of the Universal Declaration of Human Rights.
94.
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
8–11 of the Universal Declaration of Human Rights, is of such gravity as to give the detention
of the 17 persons an arbitrary character under category III.
(d)
Category V
95.
With regard to category V, the source claims that the deprivation of liberty of the
17 detained persons constitutes a violation of international law in that it is an act of
discrimination on the basis of opinion, disregarding the principle of equality of human beings
with regard to thought, expression, assembly and demonstration.
96.
The Government denies that any of the detentions in the 17 cases were carried out
because of the detained persons’ political opinions or because they were exercising the rights
of assembly and demonstration. The Government argues that the detentions were carried out
because the detained persons participated in the “violent” demonstrations that took place on
11 July 2021.
97.
The Working Group is persuaded that the detentions of the persons involved in the
17 cases were based on discriminatory grounds because of their political opinions. The
Working Group notes that the charges brought by the prosecution refer explicitly to detained
persons who carried counter-revolutionary posters at the anti-government demonstration.
Moreover, the demonstration was fuelled by discontent towards the Government and
therefore, in the Working Group’s view, the 17 individuals were arrested, charged and
imprisoned specifically because of their alleged political affiliations. In the light of the above,
the Working Group finds that the detentions of the 17 persons were arbitrary under category
V, in violation of articles 2 and 7 of the Universal Declaration of Human Rights.
21 United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems,
principle 1; opinion No. 63/2019, para. 103; and 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, principle 9.
22 See CAT/C/CUB/CO/3.
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(e)
Concluding remarks
98.
According to the source, Mr. Aguilar Rivera has a mental disability, certified by the
State in numerous documents, and his state of health has deteriorated significantly since he
was detained. This is because Mr. Aguilar Rivera was prosecuted, tried and convicted as a
person without a disability. In its late response, the Government claims that Mr. Aguilar
Rivera has been in good health and receives regular medical follow-up for his dissocial
personality disorder. The Working Group recalls the United Nations Standard Minimum
Rules for the Treatment of Prisoners (the Nelson Mandela Rules) and article 13 (1) of the
Convention on the Rights of Persons with Disabilities, ratified by Cuba in 2007.
99.
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.23 The Working Group would welcome the opportunity to undertake a visit to
Cuba in order to assist the Government in addressing concerns related 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
100.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Ángel Serrano Hernández, Carlos Paul Michelena
Valdés, Denis Ojeda Álvarez, Felipe Almirall, Fredy Beirut Matos, Katia Beirut
Rodríguez, Luis Frómeta Compte, Odet Hernández Cruzata, Oscar Luis Ortiz
Arrovsmeth, Reynier Reinosa Cabrera, Robert Orlando Cairo Díaz, Roberto Pérez
Ortega, Rolando Vázquez Fleita, Walnier Luis Aguilar Rivera, Wilmer Moreno Suárez,
Yerandis Rillos Pao and Yoandry Reinier Sayu Silva, being in contravention of articles
2, 3, 7–11, 19 and 20 of the Universal Declaration of Human Rights, is arbitrary and
falls within categories I, II, III and V.
101.
The Working Group requests the Government of Cuba to take the steps necessary to
remedy the situation of the 17 persons without delay and bring it into conformity with the
relevant international norms, including those set out in the Universal Declaration of Human
Rights.
102.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release the 17 persons immediately and accord them
an enforceable right to compensation and other reparations, in accordance with international
law.
103.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of the
17 persons and to take appropriate measures against those responsible for the violation of
their rights.
104.
The Working Group requests the Government to bring its laws, in particular the
provisions relating to the offence of sedition in the Criminal Code, into conformity with
international human rights standards.
105.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
106.
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:
23 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.
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(a)
Whether the 17 persons have been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to the 17 persons;
(c)
Whether an investigation has been conducted into the violation of the
17 persons’ 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.
107.
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.
108.
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.
109.
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.24
[Adopted on 20 March 2024]
24 Human Rights Council resolution 51/8, paras. 6 and 9.