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.25-02456 (E) 190325 190325
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its 101st session, 11–15 November 2024
Opinion No. 66/2024 concerning Jorge Martín Perdomo and
Nadir Martín Perdomo (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 1 May 2024 the Working Group
transmitted to the Government of Cuba a communication concerning Jorge Martín Perdomo
and Nadir Martín Perdomo. The Government submitted a late response on 5 August 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
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).
* Mumba Malila did not participate in the discussion of the case.
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2024/66
General Assembly
Distr.: General
24 February 2025
English
Original: Spanish
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1.
Submissions
(a)
Communication from the source
4.
Jorge Martín Perdomo is a national of Cuba, born on 11 March 1983.
5.
Nadir Martín Perdomo is a national of Cuba, born on 12 May 1984.
(i)
Context
6.
The source reports that Jorge Martín Perdomo and Nadir Martín Perdomo are brothers
who were detained on 17 July 2021 in the context of the mass demonstrations of 11 July 2021
and the following days, which took place in several areas and regions of Cuba.
7.
The source asserts that the aforementioned demonstrations were peaceful and
spontaneous gatherings of thousands of Cubans, mostly young people, who shouted phrases
such as “libertad” (freedom), “patria y vida” (homeland and life), “abusadores” (abusers),
“abajo el comunismo” (down with communism), “abajo la dictadura” (down with the
dictatorship), “abajo los Castro” (down with the Castros), “abajo Díaz‑Canel” (down with
Díaz‑Canel) and “Díaz-Canel puesto a dedo” (Díaz‑Canel, the shoo-in). These
demonstrations were held in response to the serious situation caused by the gradual
accumulation of shortages of food and medicine and the escalation of acts of repression and
restrictions of fundamental freedoms.
8.
The source states that, on 11 July 2021, the President of Cuba gave a televised address
in which he encouraged the authorities and other groups to violently confront the
demonstrators. The President said the following: “We call on all revolutionaries in the
country, all communists, to take to the streets.” As a result, individuals in civilian clothing,
who did not identify themselves, but who were actually military personnel from the Ministry
of the Interior, and civilians from rapid response brigades violently arrested participants in
the demonstrations throughout the country. These arrests led to public disorder, including
violent attacks against demonstrators.
9.
There is an abundance of documentary evidence and reports demonstrating how
individuals in civilian clothing, including young people from the Young Communist League
and those doing military service, were given pieces of wood and baseball bats with which to
repress and beat the demonstrators. The source adds that the President’s words sparked
uncontrollable chaos on the country’s streets. According to the 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.
10.
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.
(ii)
Arrest and detention
11.
The source states that, in the afternoon of 11 July 2021, Messrs. Martín Perdomo
peacefully participated in the mass demonstration that took place in San José de las Lajas,
their area of residence. A number of home-made videos show how demonstrators shouted
slogans such as “libertad” and “patria y vida”. After leaving the demonstration to return
home, Messrs. Martín Perdomo were placed under surveillance by on-duty officers from the
Directorate General of Counter-Intelligence of San José de las Lajas, who were wearing
civilian clothing and carrying no form of identification.
12.
On 16 July 2021, Messrs. Martín Perdomo were threatened by officers from the San
José de las Lajas unit of the Division for Criminal Investigations and Operations, who said
that they would return the following day to seize the computers in the house.
13.
According to the source, on 17 July 2021, three officers from the San José de las Lajas
unit of the National Revolutionary Police came to the home of Messrs. Martín Perdomo
bearing an official summons on which neither the date nor the reason for the document’s
issuance were indicated. Messrs. Martín Perdomo went to the San José de las Lajas unit of
the National Revolutionary Police that afternoon.
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14.
The source reports that, that night, the relatives of Messrs. Martín Perdomo became
concerned when the two men failed to return home. They called the aforementioned unit and,
after much insistence, were told that both brothers had been detained, without being given
any further information.
15.
The source points out that Messrs. Martín Perdomo were not shown an arrest warrant
and were presented only with an unsigned summons instructing them to attend a sham
interview at the local unit of the National Revolutionary Police. Once the brothers entered
the police unit, they were arrested and deprived of their liberty.
16.
The source submits that the Cuban authorities (the Directorate General of the National
Revolutionary Police and the Directorate General of Counter-Intelligence of the Ministry of
the Interior) engage in bad practice by carrying out arrests without showing an arrest warrant,
which is completed after the person has been deprived of their liberty in order to meet
procedural requirements. The Cuban authorities are also known, as has occurred in the case
of Messrs. Martín Perdomo, to employ tricks and schemes, such as the issuance of summons
to attend sham interviews at the units of the National Revolutionary Police, with the aim of
luring individuals to the police unit concerned so that they can be arrested and deprived of
their liberty once inside. When making such arrests, it is common for the Cuban authorities
not to inform the individual concerned of the reasons for their arrest or the rights and
guarantees for arrested persons.
17.
According to the source, Messrs. Martín Perdomo were not informed of their rights
or the reasons for their detention at the time of their arrest. While detained at the San José de
las Lajas unit of the National Revolutionary Police, the two men were told that they had been
charged with the alleged crime of public disorder. The crimes of contempt for authority and
assault were added to the charge sheet at a later date. The charges against Messrs. Martín
Perdomo are set out in preliminary case file No. 403 of 2021 of the San José de las Lajas
investigative unit.
18.
The source submits that the measure of pretrial detention was imposed on Messrs.
Martín Perdomo by the Mayabeque Provincial Prosecutor’s Office and the investigator of
that province. The source adds that, in Cuba, it is a procedural requirement for detained
persons to undergo an assessment before a precautionary measure of pretrial detention can
be imposed. Notwithstanding the foregoing, the measure imposed on Messrs. Martín
Perdomo was unjust insofar as it was both disproportionate and unreasonable, bearing in
mind that both men are upstanding citizens with no criminal record who have a recognized
domicile and are known to have stable employment, that there is no indication that they were
trying to evade justice and that the misrepresented events that served as the basis for the
men’s arbitrary detention and subsequent prosecution did not pose any danger to society.
19.
The source adds that the precautionary measure of pretrial detention has been given
inquisitorial characteristics under the Criminal Procedure Act (No. 5) (the law in force at the
time of the events), in particular the provisions governing the preparatory phase of oral
proceedings. The measure imposed on Messrs. Martín Perdomo, which was taken instead of
another, non-custodial, precautionary measure, is the most drastic step that can be taken
against an accused person during that phase.
20.
The source states that the precautionary measure of pretrial detention imposed on
Messrs. Martín Perdomo pending the oral proceedings was not subject to judicial review. The
fact that Messrs. Martín Perdomo, like all the individuals who were deprived of their liberty
for participating in the mass demonstration of 11 July 2021, were not brought before a judge
promptly after their arrest amounts to a violation of principle 37 of the Body of Principles for
the Protection of All Persons under Any Form of Detention or Imprisonment.
21.
The source asserts that, after their arrest on 17 July 2021, the brothers were deprived
of their liberty for six months under a precautionary measure of pretrial detention, during
which time they were not given access to a judge or a court. They were first provided with
such access in February 2022, when they were brought before the Criminal Chamber of the
People’s Municipal Court of San José de las Lajas, located within the People’s Municipal
Court of Quivicán in Mayabeque Province.
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22.
According to the source, on 30 July 2021, the legal team chosen by Messrs. Martín
Perdomo filed a request for the precautionary measure of pretrial detention to be modified.
This request, which was submitted to the designated prosecutor through the investigator
assigned to the case, made it clear that the brothers were upstanding citizens, enjoyed good
social standing, had no criminal record, had a recognized domicile and stable employment
and had fulfilled their tax obligations. All of these arguments were ignored in order to keep
Messrs. Martín Perdomo in pretrial detention.
23.
The source submits that the detainees were subjected to psychological duress by being
deprived of their liberty for a lengthy period while waiting to be brought before the court.
They have also suffered psychological abuse, in the form of insults and threats, at the hands
of the authorities responsible for their detention, namely, the officers from the relevant units
of the National Revolutionary Police, the Directorate General of Counter-Intelligence and the
Division for Criminal Investigations and Operations.
24.
The source alleges that Messrs. Martín Perdomo have been held incommunicado and
thus prevented from seeing their relatives for the entire duration of their pretrial detention.
The detainees had their first telephone call with their relatives 62 days after their arrest. It
was not until 65 days after their arrest that they were able to make direct contact with the
legal team representing them in the criminal proceedings.
25.
The legal team representing the detainees in the criminal proceedings against them is
made up of lawyers from the San José de las Lajas Collective Law Firm, which is part of the
National Organization of Collective Law Firms. According to the source, while the National
Organization of Collective Law Firms is supposedly a non-governmental organization, the
reality is that it is a transfiguration of a socialist State entity, with all the attributes of one,
including ties to the Communist Party of Cuba and grass-roots committees of the Young
Communist League.
26.
According to the source, the Government has used the coronavirus disease
(COVID-19) pandemic as an excuse to sidestep its obligation to ensure that persons deprived
of their liberty owing to their participation in the demonstration of 11 July 2021 are able to
communicate with the outside world. The source adds that it is common for the State to
prevent persons who have been deprived of their liberty for sociopolitical reasons from
communicating with the outside world for lengthy periods of time. The source refers to the
Working Group’s 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.
27.
The source states that, with regard to the lengthy period of time during which the
relatives of Messrs. Martín Perdomo were kept in the dark about the brothers’ legal situation,
article 2 of the International Convention for the Protection of All Persons from Enforced
Disappearance establishes that “enforced disappearance” is considered to be the arrest,
detention, abduction or any other form of deprivation of liberty by agents of the State or by
persons or groups of persons acting with the authorization, support or acquiescence of the
State, followed by a refusal by the authorities to acknowledge the deprivation of liberty or
reveal the fate or whereabouts of the disappeared person, which places the victim outside the
protection of the law.
28.
The source reports that, on 17 July 2021, Messrs. Martín Perdomo were detained at
the municipal unit of the National Revolutionary Police in San José de las Lajas
(Mayabeque). That same day, they were transferred to the so-called “AIDS prison”, which is
situated in the same municipality and the same province, where they were deprived of their
liberty for 48 days before being moved to Quivicán prison (Mayabeque) on 3 September
2021. On 12 February 2022, Nadir Martín Perdomo was transferred to Melena del Sur prison
(Mayabeque), where he remained until 16 November 2022, when he was transferred back to
Quivicán prison. On 9 July 2023, Jorge Martín Perdomo was transferred to a camp in
Quivicán (Mayabeque). Nadir Martín Perdomo was moved to the same camp on 11 July
2023. On 21 October 2023, Jorge Martín Perdomo was transferred to the Canasí camp in
Mayabeque. He was then transferred to the Ho Chi Min camp, also in Mayabeque, on
1 February 2024.
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29.
According to the source, during the aforementioned transfers, no steps were taken to
ensure that Messrs. Martín Perdomo were able to exercise their right to immediately notify
their relatives of their movements, in violation of rule 68 of the United Nations Standard
Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules).
(iii)
Criminal proceedings
30.
According to the source, on 8 February 2022, the Criminal Chamber of the People’s
Municipal Court of San José de las Lajas (located within the People’s Municipal Court of
Quivicán) issued judgment No. 7 of 2022, in which it sentenced Messrs. Martín Perdomo to
6 years’ imprisonment for the crimes of public disorder, assault and contempt of authority.
31.
According to the source, the criminal proceedings were a sham trial held for the
purposes of legitimizing, concealing and misrepresenting the acts of cruelty and violence
perpetrated against certain individuals because of political differences, as well as
criminalizing and turning public opinion against those who participated in the demonstration
of 11 July 2021 in order to make an example of them.
32.
The source affirms that the judicial proceedings against Messrs. Martín Perdomo
violated the essence of due process, since they were manifestly biased towards the State and
its punitive action, to the detriment of the citizens’ ability to exercise their defence rights.
33.
The source alleges that judgment No. 7 of 2022 of the People’s Municipal Court of
San José de las Lajas offers yet another example of the Cuban authorities’ using hateful,
humiliating and unethical language to describe those who oppose the current form of
organization of the State by referring to the demonstrators of 11 July 2021 as “disturbed street
performers”. The source adds that the judgment contains accusations of alleged punishable
conduct, which the judges included solely for the purpose of turning public opinion against
Messrs. Martín Perdomo, doing so without providing any evidentiary basis or setting out the
criminal action to be taken in response.
34.
According to the source, following the conclusion of the trial before the lower court,
the legal team hired to represent Messrs. Martín Perdomo lodged an appeal against their
conviction, in due time and form, with the First Chamber of the Provincial People’s Court of
Mayabeque. This appeal was broadly based on the fact that the legal team disagreed with the
classification of the crimes with which the brothers had been charged, arguing that the acts
described or that occurred did not meet the definitions of those crimes.
35.
The legal team also noted the incomplete and obscure account set out in the judgment,
as well as the clear bias shown by the court when it dismissed the evidence provided by the
defence using superfluous arguments and without offering counter-evidence, which has been
a common tactic used to criminalize many of the demonstrators of 11 July 2021.
36.
The source reports that the appeal was rejected.
37.
With regard to the conditions of detention, the source states that the Cuban authorities
are unable to guarantee the availability of personal hygiene products for detained persons. As
a result, the burden of finding and supplying personal hygiene products for such persons falls
on their families.
38.
According to the source, the food that detainees are given is insufficient, very poor
quality and cold, with little or no protein or vitamin content. This highlights the prima facie
failure of the Cuban authorities to comply with rules 1, 18, 22, 24 and 58 of the Nelson
Mandela Rules.
39.
The source adds that the situation is compounded by the precariousness, overcrowding
and inefficiency that prevail in the Cuban prison system, which means that not even the
Cuban authorities, acting through the Directorate of Prisons of the Ministry of the Interior,
can guarantee detainees their basic rights, such as access to personal hygiene products, as
such products are inaccessible to millions of Cubans.
(iv)
Legal analysis
40.
According to the source, the detention of Messrs. Martín Perdomo falls under
categories I, II, III and V of the Working Group.
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a.
Category I
41.
The source claims that Messrs. Martín Perdomo were not shown an arrest warrant and
were presented only with an unsigned summons instructing them to attend a sham interview
at the local unit of the National Revolutionary Police. Once inside this police unit, the
brothers were arrested and deprived of their liberty before being transferred to various
detention centres. The source submits that the Working Group has stated in many of its
opinions that a detention is considered arbitrary under category I if it lacks legal basis.
42.
The source adds that the precautionary measure of pretrial detention imposed on
Messrs. Martín Perdomo was not subject to judicial review. With regard to the time limit for
bringing a person deprived of their liberty before the competent authority, the source recalls
that the Working Group has stated in its opinions that 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.2
43.
The source states that, compared with other participants in the mass demonstration of
11 July 2021, the precautionary measure imposed on Messrs. Martín Perdomo, far from being
applied as an exceptional measure, was instead applied exclusively as an informal measure,
without regard to the personal situation of the persons detained or the nature of the alleged
crime and, most seriously of all, without judicial oversight under the outdated Criminal
Procedure Act (No. 5 of 1977), which had to be repealed. In this regard, the Working Group
has stated that, 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.3
b.
Category II
44.
The source alleges that the deprivation of liberty of Messrs. Martín Perdomo
constitutes a flagrant prima facie violation by the Cuban authorities of the brothers’ rights
under articles 7, 18, 19 and 20 of the Universal Declaration of Human Rights.
45.
The source asserts that charges have been brought against the brothers in an attempt
to criminalize those who, on 11 July 2021 and the following days, exercised their right to
demonstrate, which is a universal and alienable human right enshrined in core human rights
instruments and a fundamental right under article 56 of the Constitution.
c.
Category III
46.
According to the source, the detainees’ rights under articles 9 and 10 of the Universal
Declaration of Human Rights have been violated, as the two men have been subjected to
prolonged arbitrary pretrial detention with inquisitorial characteristics. Based on this line of
argumentation, 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 the two men to
have access to legal assistance from the beginning of the criminal proceedings or to
communicate immediately with their relatives.
47.
The source mentions that, in Cuba, criminal proceedings, which are governed by the
Criminal Procedure Act (No. 5), have inquisitorial characteristics and that legal
representation is provided through the National Organization of Collective Law Firms,
which, in reality, is an administrative body under the control of the Communist Party.
Accordingly, the senior leadership of the Communist Party of Cuba has control over the
courts, the Public Prosecution Service, investigative bodies, prosecutorial bodies, expert
witnesses, pro-government lawyers and the official mass media.
2 Opinion No. 62/2023, para. 71.
3 Opinion No. 72/2023, para. 63.
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d.
Category V
48.
According to the source, the brothers are being deprived of their liberty in retaliation
for their opposition to the Government.
49.
The source claims that there are several home-made videos of the demonstration that
show the civic leadership role played by Messrs. Martín Perdomo.
50.
The source argues that Messrs. Martín Perdomo are not “maggots”, “rats” or
“mercenaries”, which are the humiliating terms that have become a feature of the hate speech
used by the Cuban authorities to humiliate and denigrate those who oppose them.
51.
The source adds that Messrs. Martín Perdomo are upstanding citizens and peaceful
demonstrators whose “crimes” were to express, repeatedly and loudly in the midst of a
spontaneous civic demonstration, civil and political views that run counter to those of the
Communist Party of Cuba.
(b)
Response from the Government
52.
In order to be able to issue an opinion in the present case, the Working Group, in
accordance with its methods of work, transmitted the source’s allegations to the Government
of Cuba on 1 May 2024 and requested it to submit a response by 1 July 2024. On 1 July 2024,
the Government requested an extension of the time limit, which was granted by the Working
Group, and the new deadline was set for 31 July 2024.
53.
The Government submitted its response on 5 August 2024. The Working Group finds
it regrettable 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 Messrs. Martín Perdomo, on the basis of all the
information that it has received, in accordance with paragraph 16 of its methods of work.4
2.
Discussion
54.
In determining whether the detention of Messrs. Martín Perdomo 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.5 Mere assertions that lawful
procedures have been followed are not sufficient to rebut the source’s allegations.
55.
The Working Group wishes to reaffirm that States have an obligation to respect,
protect and uphold all human rights and fundamental freedoms, including liberty of person,
and that any national law allowing deprivation of liberty should be formulated and
implemented in conformity with the relevant international standards set forth in the Universal
Declaration of Human Rights and other applicable international instruments. Consequently,
even if a detention is in conformity with national legislation, regulations and practices, the
Working Group has a right and an obligation to assess the judicial proceedings and the law
itself to determine whether the detention is also consistent with the relevant provisions of
international human rights law.6
(a)
Category I
56.
The source argues that the arrest and detention of Messrs. Martín Perdomo are
arbitrary under category I of the Working Group. The Working Group recalls that a detention
is considered arbitrary under category I if it lacks legal basis. As the Working Group has
previously stated, in order for a deprivation of liberty to have a legal basis, it is not sufficient
that there is a national law that may authorize the arrest. The authorities must invoke that
4 A/HRC/36/38.
5 A/HRC/19/57, para. 68.
6 Opinions No. 10/2018, para. 39; No. 4/2019, para. 46; No. 46/2019, para. 50; and No. 5/2020,
para. 71.
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legal basis and apply it to the circumstances of the case.7 In its late response, the Government
has opposed this assertion by stating that the demonstrations gave rise to vandalism, criminal
acts and violations of the social distancing measures introduced in response to the COVID-19
pandemic.
57.
According to the source, Messrs. Martín Perdomo were detained on 17 July 2021 after
the demonstrations of 11 July 2021 and the following days, which took place in several areas
and regions of Cuba. After leaving the demonstration to return home, Messrs. Martín
Perdomo were placed under surveillance by on-duty officers from the Directorate General of
Counter-Intelligence, who were wearing civilian clothing and carrying no form of
identification.
58.
The source informs the Working Group that, on 17 July 2021, three officers from the
San José de las Lajas unit of the National Revolutionary Police came to the home of
Messrs. Martín Perdomo with an official summons on which neither the date nor the reason
for the document’s issuance were indicated. After receiving the summons, Messrs. Martín
Perdomo went to the San José de las Lajas unit of the National Revolutionary Police that
same afternoon. The source informs the Working Group that the day before, on 16 July 2021,
the brothers had been threatened by agents from the San José de las Lajas unit of the Division
for Criminal Investigations and Operations, who said that they would return the following
day to seize the computers in the house.
59.
The source emphasizes that, once inside the police unit, Messrs. Martín Perdomo were
arrested and deprived of their liberty without being shown an arrest warrant or being informed
of their rights or the reasons for their detention. The source insists that this is a practice
commonly employed by the Cuban authorities.
60.
In the present case, Messrs. Martín Perdomo admit that they joined the protests of
11 July 2021 and insist that they went to the unit of the National Revolutionary Police only
because they had been summoned for a supposed interview. The Government, in contrast,
states that that Messrs. Martín Perdomo were arrested for participating in violent disturbances
and acts of vandalism and for disrupting the peace, which resulted in several law enforcement
officers being attacked. The Government affirms that these events cannot be called
“peaceful”, since they sparked violent acts that jeopardized the peace and stability of the
State. The Government also claims that those acts violated the sanitary measures in force in
the context of the COVID-19 pandemic, which was peaking at exactly that moment.
61.
The Working Group notes, however, that the fact that Messrs. Martín Perdomo were
not arrested in flagrante delicto means that they had the right to be presented with an arrest
warrant and informed of the reasons for their arrest at the time thereof, which is a procedurally
inherent component of the right to liberty and security of person and the prohibition of
arbitrary deprivation of liberty.
62.
The Working Group is not convinced that these requirements were fulfilled in the case
of the arrest of Messrs. Martín Perdomo and considers, therefore, that their arrest violated
articles 3 and 9 of the Universal Declaration of Human Rights and principles 2, 4 and 10 of
the Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment.
63.
Furthermore, the source alleges that the initial detention of Messrs. Martín Perdomo
was not subject to judicial review. The Government, in its late response, did not directly
address this argument.
64.
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
should be brought before a judicial or other authority provided by law promptly after his or
her arrest. International human rights standards specify that the maximum time limit for
7 See, for example, opinions No. 46/2017, No. 66/2017, No. 75/2017, No. 93/2017, No. 35/2018,
No. 79/2018, No. 89/2020 and No. 72/2021.
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bringing a detained person before the competent authority is 48 hours and make clear that
any delay must be absolutely exceptional and justified.8
65.
In the present case, the Government does not provide sufficient information to show
that Messrs. Martín Perdomo were brought before a judge to challenge their detention within
48 hours of their initial deprivation of liberty. Although Messrs. Martín Perdomo were
eventually brought before the courts, this took place well after the 48-hour deadline for
challenging the grounds for the arrest. According to the source, it was only in February 2022
(six months after their arrest) that Messrs. Martín Perdomo were brought before the Criminal
Chamber of the People’s Municipal Court of San José de las Lajas. On the basis of the
information received, the Working Group considers that the detention of Messrs. Martín
Perdomo was not subject to judicial oversight, in violation of article 9 of the Universal
Declaration of Human Rights.
66.
According to the source, the measure of pretrial detention was imposed on Messrs.
Martín Perdomo by the Mayabeque Provincial Prosecutor’s Office and the investigator of
that province, also without judicial review. The source adds that, compared with other
participants in the mass demonstration of 11 July 2021, the precautionary measure imposed
on Messrs. Martín Perdomo, far from being applied as an exceptional measure, was instead
applied exclusively as an informal measure, without regard to the personal situation of the
persons detained or the nature of the alleged crime. In its late response, the Government stated
that the prosecutor ordered the pretrial detention measure on 24 July 2021, which was within
the deadlines established under current procedural law, and that the measure was not
disproportionate given that the acts committed by Messrs. Martín Perdomo violated public
order and peace.
67.
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.9 In determining
whether the conditions governing pretrial detention have been met, the Working Group
examines whether the national courts have taken into account the particular circumstances of
the person concerned but does not check whether there are risks that would make pretrial
detention necessary.10
68.
Despite the Government’s assertions that Messrs. Martín Perdomo were involved in
allegedly violent protests, it has not provided sufficient information to demonstrate the need
for pretrial detention in these circumstances. 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. The foregoing
demonstrates that Messrs. Martín Perdomo were subjected to pretrial detention in the absence
of an individualized judicial assessment.11
69.
In view of the foregoing, the Working Group considers that the detention of
Messrs. Martín Perdomo 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.
8 Opinions No. 20/2019, para. 66; and No. 26/2019, para. 89.
9 Opinion No. 37/2022, para. 60.
10 Opinion No. 15/2022, para. 66.
11 Opinions No. 14/2020, para. 53; and No. 63/2021, paras. 91–93.
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(b)
Category II
70.
The source states that the detention of Messrs. Martín Perdomo is arbitrary under
category II because it is a direct result of repression and punishment for having participated
in the demonstrations that took place in Cuba over several days in July 2021, which have
been a matter of public record, and for having expressed their opinions and political positions
during those events. Thus the rights to freedom of expression and to freedom of peaceful
assembly and association, enshrined in articles 19 and 20 of the Universal Declaration of
Human Rights, have been violated. In its late response, the Government claims that the arrest
occurred because Messrs. Martín Perdomo had engaged in acts of violence, breaches of the
peace and vandalism, in violation of COVID-19 laws.
71.
In this regard, the Working Group underlines Human Rights Council resolution 24/5,
in which States are reminded of their obligation to respect and fully protect the rights of all
individuals, including persons espousing minority or dissenting views or beliefs, human
rights defenders, trade unionists and others, to assemble peacefully and associate freely.
72.
As stated in Human Rights Council resolution 12/16, States are urged to refrain from
imposing restrictions that are inconsistent with international human rights law, in particular
restrictions on discussion of government policies and political debate; reporting on human
rights; participation in peaceful demonstrations or political activities, including for peace or
democracy; and expression of opinion or dissent, religious ideas or beliefs.
73.
The Working Group stresses that, according to article 19 of the Universal Declaration
of Human Rights, everyone has the right to freedom of expression, which includes the right
to impart information and ideas of all kinds, orally or otherwise. The Working Group also
reiterates that the exercise of this right may be subject only to such restrictions as are
expressly provided for by law and are necessary to ensure respect for the rights or reputations
of others or to protect national security, law and order or public health or morals.12
74.
The Working Group is of the view that freedom of opinion and freedom of expression
are indispensable prerequisites for the full development of the person and constitute the
cornerstone of all free and democratic societies. Both freedoms are the basis for the effective
exercise of a wide range of human rights, including the right to the freedoms of assembly and
association and the right to political participation, as set forth in the Universal Declaration of
Human Rights.13
75.
The importance of freedom of opinion is such that no Government may impair other
human rights on the basis of a person’s actual or perceived opinions, whether of a political,
scientific, historical, moral, religious or any other nature. Consequently, criminalizing the
expression of an opinion is incompatible with the Universal Declaration of Human Rights.
Nor is it permissible for a person to be harassed, intimidated, stigmatized, detained or placed
in pretrial detention, prosecuted or imprisoned because of his or her views.
76.
The Working Group notes that the Special Rapporteur on the rights to freedom of
peaceful assembly and of association has stated that international human rights law only
protects assemblies that are peaceful, i.e. those that are not violent, and where participants
have peaceful intentions, which should be presumed.14
77.
The Working Group specifically notes that there are no allegations that Messrs. Martín
Perdomo have engaged in acts of public disorder, thereby violating the health measures in
place during the COVID-19 pandemic. Similarly, the Working Group is not convinced that
the actions of Messrs. Martín Perdomo can justify the loss of the protection afforded to them
by articles 19 and 20 of the Universal Declaration of Human Rights.
78.
In addition, and with regard to the charges of assault, contempt for authority and
public disorder brought against Messrs. Martín Perdomo, the Working Group has previously
determined that these and similar offences are excessively vague and overly broad, as they
12 Opinion No. 58/2017, para. 42.
13 Opinions No. 58/2017 and No. 63/2019.
14 A/HRC/20/27, para. 25.
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11
do not clearly define the type of criminal activity that they are intended to punish.15 The
principle of legality requires that laws be formulated with sufficient precision to give
individuals access to and an understanding of the law and enable them to regulate their
conduct accordingly. The application of vague and overly broad provisions in the present
case has made it impossible to invoke a legal basis to justify the detention and arrest of
Messrs. Martín Perdomo.16
79.
In view of the above, the Working Group finds that the arrest and detention of Messrs.
Martín Perdomo were essentially due to the peaceful exercise of their rights to freedom of
assembly and association and to freedom of opinion and expression, in violation of articles 19
and 20 of the Universal Declaration of Human Rights. In view of these circumstances, the
Working Group decides to refer this case to the Special Rapporteur on the promotion and
protection of the right to freedom of opinion and expression and the Special Rapporteur on
the rights to freedom of peaceful assembly and of association, and finds the detention of
Messrs. Martín Perdomo arbitrary under category II.
(c)
Category III
80.
In the light of the findings noted in relation to category II, in which it concluded that
the detention of Messrs. Martín Perdomo results from the exercise of the rights to freedom
of opinion, association and expression, the Working Group considers the detention and the
trial to be disproportionate and unjustified. However, given that criminal proceedings were
instituted against the brothers and considering the allegations of the source, the Working
Group will proceed to analyse whether, in course of the ongoing judicial proceedings, the
fundamental elements of a fair, independent and impartial trial have been respected, including
the right of the person to be heard in public proceedings with all the guarantees necessary for
his or her defence and the right to be tried by a competent, independent and impartial criminal
court.
81.
The Working Group recalls that the right to a fair trial has, since the proclamation of
the Universal Declaration of Human Rights, become established as one of the fundamental
pillars of international law to protect individuals against arbitrary treatment.
82.
In the case of Messrs. Martín Perdomo, the Working Group wishes to stress that,
according to the information from the source, the precautionary measure of detention was
ordered by the prosecutor assigned to the case. The fact that this measure is not considered
excessive or unlawful in view of the breaches of the peace committed – as the Government
puts it – does not matter; what does matter is that the measure was not issued by the competent
authority. The Working Group has always insisted that in the field of criminal law, in cases
in which coercive measures are imposed, the right to defence must be guaranteed at all stages
of the process. In order to ensure this equality, the legal system must provide for a separation
between the authority conducting the investigation and the authorities in charge of the
detention and ruling on the conditions of the pretrial detention. This separation is a necessary
requirement to prevent conditions of detention from being used to impair the effective
exercise of the right to defend oneself, favour self-incrimination or allow pretrial detention
to amount to a form of advance punishment. 17 This separation, which guarantees the
impartiality of the proceedings, has not been respected in the case of Messrs. Martín
Perdomo.
83.
Moreover, the Working Group underscores the need for any form of detention or
imprisonment to be ordered by a judicial or other authority in keeping with the law and to be
always subject to the effective control of that authority, whose status and tenure should afford
the strongest possible guarantees of competence, impartiality and independence, in
accordance with principle 4 of the Body of Principles for the Protection of All Persons under
15 Opinion No. 65/2020, para. 78. See also opinions No. 63/2019 and No. 4/2020; and Inter-American
Commission on Human Rights, Annual Report 2019, chap. IV.B, Cuba, para. 22, available at
http://www.oas.org/es/cidh/docs/anual/2019/docs/IA2019cap4BCU-es.pdf.
16 Opinions No. 41/2021 and No. 63/2021.
17 E/CN.4/2005/6, para. 79.
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Any Form of Detention or Imprisonment. This has not occurred in both cases brought against
Messrs. Martín Perdomo.
84.
In view of the foregoing, the Working Group finds that, in the present case, the
aforementioned lack of separation between the authority conducting the investigation and the
authorities in charge of detention and ruling on the conditions of the pretrial detention violates
the right of Messrs. Martín Perdomo to a defence, as enshrined in articles 10 and 11 of the
Universal Declaration of Human Rights.
85.
Furthermore, the source informs the Working Group that Messrs. Martín Perdomo
disappeared for several hours after their detention, during which time the authorities refused
to give the brothers’ relatives any information about their whereabouts or well-being. The
whereabouts of Messrs. Martín Perdomo were discovered once the necessary enquiries had
been made, when it was revealed that they had been transferred to Quivicán prison pending
their respective trials.
86.
The source informs the Working Group that Messrs. Martín Perdomo were unable to
communicate with their family at the time of their detention, having been unreasonably
deprived of that right, in violation of principles 15, 16 and 19 of the Body of Principles for
the Protection of All Persons under Any Form of Detention or Imprisonment. The source
states that the brothers were able to make their first telephone call to their relatives and
receive their first visit from them 62 days and six months after their arrest, respectively.
87.
The Government has denied such assertions in its late response, claiming that the
aforementioned situation arose following the introduction in the country of measures to
contain the outbreak of COVID-19, meaning that family visits to prisons were suspended to
preserve the health and safety of citizens.
88.
The source indicates that Messrs. Martín Perdomo were only able to make contact
with their legal team 65 days after their arrest, as they had been prevented from receiving
visits until 20 October 2021, a claim which has not been denied by the State. They made their
statements at the first hearing, which took place in the absence of legal counsel. With regard
to this assertion, the Government, in its response, merely mentions in general terms that
Messrs. Martín Perdomo were represented during the criminal proceedings and the trial by a
defence lawyer that they had chosen themselves. The Working Group notes, however, that
Messrs. Martín Perdomo were held incommunicado for several days, without being able to
speak to their family or a lawyer, in contravention of principles 15, 18 and 19 of the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,
as stated above.
89.
The Working Group, in its deliberation No. 11, has stressed that it is mindful of the
fact that the public health emergency measures introduced to combat the pandemic may limit
access to detention facilities and prevent persons deprived of their liberty from holding
meetings with their legal counsel and families. Nonetheless, States must ensure the
availability of alternative forms of communication. Legal counsel must be able to contact the
client through secured online communication or communication over the telephone, free of
charge and in circumstances in which privileged and confidential discussions can take
place.18
90.
The Working Group notes that Messrs. Martín Perdomo were denied the opportunity
to contact and receive assistance from legal counsel immediately after their detention and
were prevented from receiving a fair trial in accordance with the principle of equality of arms
and the right to adequate time and facilities to prepare a defence, in violation of articles 10
and 11 (1) of the Universal Declaration of Human Rights and principles 15, 17, 18 and 32 of
the Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment. The Working Group also recalls that holding detained persons
incommunicado constitutes a violation of their right to challenge the legality of their
detention before a court, as provided for in article 8 of the Universal Declaration of Human
Rights.19
18 A/HRC/45/16, annex II (English only).
19 Opinion No. 41/2021, para. 107.
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13
91.
In the light of the foregoing, the Working Group is convinced that the authorities
failed to comply with international standards relating to the right to a fair, independent and
impartial trial, as set forth in articles 10 and 11 of the Universal Declaration of Human Rights.
The Working Group thus considers that the detention of Messrs. Martín Perdomo is arbitrary
under category III.
(d)
Category V
92.
The Working Group is convinced that Messrs. Martín Perdomo were detained in a
discriminatory manner for having participated in a nationwide protest against the regime, in
violation of their rights to freedom of expression and association, as stated above.
93.
The Working Group notes that the demonstration was motivated by discontent
towards the Government. The source states that, before their arrest, Messrs. Martín Perdomo
were threatened with the confiscation of their computers, a claim which was not refuted by
the Government. Furthermore, judgment No. 7 of 2022 of the People’s Municipal Court of
San José de las Lajas refers to the protesters of 11 July 2021 as “disturbed street performers”.
Accordingly, it is the Working Group’s view that Messrs. Martín Perdomo were arrested,
charged and imprisoned because of their alleged political affiliation. In the light of the above,
the Working Group finds that the detention of Messrs. Martín Perdomo is arbitrary under
category V, in violation of articles 2 and 7 of the Universal Declaration of Human Rights.
3.
Disposition
94.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Jorge Martín Perdomo and Nadir Martín
Perdomo, being in contravention of articles 1, 2, 3, 6, 7, 8, 9, 10, 11, 19 and 20 of the
Universal Declaration of Human Rights, is arbitrary and falls under categories I, II,
III and V.
95.
The Working Group requests the Government of Cuba to take the steps necessary to
remedy the situation of Messrs. Martín Perdomo without delay and bring it into conformity
with the relevant international norms, including those set out in the Universal Declaration of
Human Rights.
96.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Messrs. Martín Perdomo immediately and
accord them an enforceable right to compensation and other reparations, in accordance with
international law.
97.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Messrs.
Martín Perdomo and to take appropriate measures against those responsible for the violation
of their rights.
98.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression, the Special Rapporteur on the rights to freedom of
peaceful assembly and of association and the Special Rapporteur on the independence of
judges and lawyers for appropriate action.
99.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
100.
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 Messrs. Martín Perdomo have been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Messrs. Martín
Perdomo;
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(c)
Whether an investigation has been conducted into the violation of the rights of
Messrs. Martín Perdomo 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.
101.
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.
102.
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.
103.
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.20
[Adopted on 13 November 2024]
20 Human Rights Council resolution 51/8, paras. 6 and 9.