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U.N. WORKING GROUP on ARBITRARY DETENTION
(HUMAN RIGHTS COMMISSION)
OPINION No. 19/2005 (UNITED STATES OF AMERICA)
Communication:
addressed to the Government of the United States
of America on 8 April 2004
Concerning:
Mr. Antonio Guerrero Rodríguez,
Mr. Fernando González Llort,
Mr. Gerardo Hernández Nordelo,
Mr. Ramón Labañino Salazar and
Mr. René González Sehwerert
The State is a party to the International Covenant
on Civil and Political Rights
1. The Working Group on Arbitrary Detention was
established by resolution 1991/42 of the
Commission on Human Rights. The mandate of the
Working Group was clarified and extended by
resolution 1997/50 and reconfirmed by resolution
2003/31. Acting in accordance with its methods of
work, the Working Group forwarded to the
Government the above-mentioned communication.
2. The Working Group conveys its appreciation to
the Government for having forwarded the requisite
information in good time.
3. The Working Group regards deprivation of
liberty as arbitrary in the following cases:
I. When it manifestly cannot be justified
on any legal basis (such as continued detention
after the sentence has been served or despite an
applicable amnesty act) (Category I);
II. When the deprivation of liberty is
the result of a judgement or sentence for the
exercise of the rights and freedoms proclaimed in
articles 7, 13, 14, 18, 19, 20 and 21 of the
Universal Declaration of Human Rights and also, in
respect of States parties, by articles 12, 18, 19,
21, 22, 25, 26 and 27 of the International
Covenant on Civil and Political Rights (Category
II);
III. When the complete or partial
non-observance of the relevant international
standards set forth in the Universal Declaration
of Human Rights and in the relevant international
instruments accepted by the States concerned
relating to the right to a fair trial is of such
gravity as to confer on the deprivation of
liberty, of whatever kind, an arbitrary character
(Category III).
4. In the light of the allegations made, the
Working Group welcomes the cooperation of the
Government. The Working Group transmitted the
reply provided by the Government to the source and
received its comments.
5. The Working Group considered this case during
its 40th session and decided, in
conformity with paragraph 17 c) of its methods of
work, to request additional information. It has
received responses both from the Government and
the source.
6. The Working Group believes that it is an a
position to render an opinion on the facts and
circumstances of the cases, in the context of the
allegations made and the response of the
Government thereto, as well as the observations by
the source.
7. The source informed the Working Group of the
following persons:
(a) Mr. Antonio Guerrero Rodríguez,
American citizen; born in Miami, Florida, on 16
October 1958; resident of South Florence, a poet
and graduate in Aerodrome Construction Engineering
of the University of Kiev, Ukraine;
(b) Mr. Fernando González Llort (Ruben
Campa), Cuban citizen; born in Havana City, Cuba,
on 18 August 1963; resident of Oxford,
[Wisconsin]; a graduate in International Political
Relations of the Higher Institute of International
Relations attached to the Cuban Ministry of
Foreign Affairs;
(c) Mr. Gerardo Hernández Nordelo (Manuel
Viramontes), Cuban citizen; born in Havana City,
Cuba, on 4 June 1965; married to Mrs. Adriana
Pérez Oconor; a writer and a cartoonist with
exhibitions in various galleries and articles
published in the Cuban press; a graduate in
International Political Relations; resident of
[Adelanto, California];
(d) Mr. Ramon Labañino Salazar (Luis
Medina), Cuban citizen; born on 9 June 1963 in
Havana City, Cuba; a graduate in Economics of the
University of Havana; resident of Beaumont,
[Texas]; and
(e) Mr. René González Sehwerert, American
citizen; born on 13 August 1956 in Chicago,
Illinois; married to Mrs. Olga Salanueva; a pilot
and flight instructor; resident of [Marianna],
Forida.
8. It was reported that theses five persons were
arrested in September 1998 in Florida. They did
not offer resistance at the moment of their
arrest. It was also reported that they were denied
the right to bail and were held for 17 months in
solitary confinement. During the 33 months they
passed in preventive detention, they were unable
to communicate among themselves or with their
families.
9. In June 2001, these five persons were tried in
Miami Dade County. Lawyers for the defendants
requested that the trial be conducted in another
city, located in Broward County, because they
considered that impartiality could not be
guaranteed in Miami. It was reported that several
anti-Cuban Government right-wing organizations are
based in that city and that many people there have
biased, prejudiced and strongly held feelings
against the Cuban Government. According to the
source, these organizations have created in the
city such sentiment against the Cuban Government
that it is impossible for artists and athletes
from Cuba to perform or compete in Florida.
10. The lawyers’ request was however rejected. The
District Attorney opposed the application for a
change of venue and argued the Miami has a
heterogeneous and non-monolithic population in
which the bias and prejudice which could exist in
the community could be diffused.
11. According to the source the trial was
conducted in an emotionally charged atmosphere of
media and public intimidation and in an
environment virulently opposed to the defendants.
Unknown individuals appeared in the courthouse
with paramilitary-style uniforms. Outside the
courtroom, noisy demonstrations were organized by
Cuban-American organizations. Relatives of the
four persons killed during the Cessna incident of
24 February 1996 gave press conferences at the
courthouse steps while jurors were arriving for
hearings.
12. Antonio Guerrero Rodriguez was sentenced to
life imprisonment plus 10 years. Fernando González
Llort was sentenced to 19 years’ imprisonment.
Gerardo Hernandez ordelo was condemned to two life
sentences plus 15 years. Ramón Labañino Salazar
was sentenced to life imprisonment plus 18 years
and René Gonzalez Sehwerert to 15 years’
imprisonment.
13. The Government replied to the sources
allegations by informing that the FBI arrested 10
people in September 1998 in connection with their
covert activity in the United States working for
Cuba’s Directorate of Intelligence. Of those ten,
five admitted guilt, cooperated with the
prosecution, were convicted and served their
sentences. The other five were convicted by a jury
in U.S. federal court in 2001. It was established
in an open public trial that three of the five
were “illegal officers” of Cuba’s Directorate of
Intelligence.
14. The Government stated that the defense at
their trial did not deny the defendants’ covert
service to Cuba’s Directorate of Intelligence, but
rather attempted to present the defendants’
conduct as fighting terrorism and protecting Cuba
against “counter-revolutionaries”. Nearly three
months of the seven-month trial was dedicated to
the presentation of evidence by the defense,
including video depositions taken by the defense
in Cuba.
15. It is stated that the accused received the
full protection of the U.S. legal system,
including counsel, investigators, and experts
provided at the expense of the United States
government. The jury, chosen following a week-long
selection process, reflected Miami’s diverse
population. The defense attorneys had the
opportunity to remove potentially biased jurors,
and they used that opportunity to ensure that no
Cuban-Americans served on the jury.
16. All five men are now serving their sentences
in federal penitentiaries, held among the general
prison population. They are allowed to receive
visits by family members, Cuban government
officials, and their lawyers, and they have the
same privileges available to the general prison
population. They have in fact received numerous,
lengthy visits from family members. There had been
issued 60 visas for them. The only family members
to whom the U.S. Government has not issued visas
are the wives of two of the accused.
17. The Government stated that evidence presented
at the trial revealed that one of the wives was a
member of the Wasp Network; she was later deported
from the United States for engaging in activity
related to espionage and was ineligible to return.
The other wife was a candidate for training in
Cuba to become an intelligence agent when the U.S.
authorities broke up the network. All of their
appeals concerning the issuance of visas are
pending before the United States Eleventh Circuit
Court of Appeals.
18. In a very extensive submission in reply the
source denounces arbitrary acts committed in the
course of the trial. It reiterates that the
defendants did not enjoy a fair trial, pointing
out primarily that they were denied access to a
lawyer during the first two days following the
first two days following their arrest and that
they were under pressure to declare themselves
guilty. Subsequently, they were kept in solitary
confinement during the 17 months preceding the
trial.
19. The source alleges that because the case has
been declared to fall under the Classified
Information Procedures Act (CIPA), all documents
constituting the evidence against the accused
persons were classified as secret. Thereby, the
effective exercise of the right to defense was
impaired.
20. The source adds that all the documents in the
case file seized from the defendants in the case
file were declared classified, including cooking
recipes, family and other papers. Such wrong
classification under the CIPA allegedly had a
negative impact on the right to defense, as the
defendants were thereby limited in the choice of
their lawyers to lawyers approved by the
government, and both lawyers’ and defendants’
access to the evidence was limited.
21. It is alleged that before and during the
trial, all the evidence in the case file was kept
in a room under the court’s control, and that the
defense lawyers could access this room only after
going through a bureaucratic procedure. The
defense lawyers were also prohibited from making
copies of the documents in evidence and from
taking notes about them in order to analyze them.
Moreover, the defense lawyers were prevented from
taking part in the establishment of the criteria
for the selection of evidence, as they were
excluded from an ex parte conference between the
prosecution and the court in which such criteria
were defined.
22. According to the source, during the defense
preparatory stage the documents presented as
evidence by the Government side were identified
with a specific code, which was changed in an
arbitrary manner a few days before the start of
the trial, damaging the work of defense counsel.
23. The source insisted at the end that holding
the trial in an inappropriate place affected the
partiality of the jury to issue a verdict
according to the principles of fair trial, because
the jury was under considerable pressure from the
Miami American-Cuban community. The source added
that only a year after the sentencing of the
accused, the same U.S. Government admitted in
another case where it was itself accused, asked
for a change of venue, presenting the argument
that Miami was an inappropriate place for a trial
where it was almost impossible to establish an
impartial jury to develop a trial in relation with
Cuba, given the overall strong opinions and
feelings over this issue.
24. In accordance with the methods of work, the
Working Group decided in its fortieth session to
address the Government of the United States and
the petitioners on three issues that would
facilitate the work of the Group:
(a) How the Classified Information Proceeding Act
(CIPA) was applied in this case;
(b) Did the eventual application of the
above-mentioned Act affect the case in terms of
access to evidence?
(c) If a case is classified as a national security
case, what are the criteria for selecting
evidence?
The Working Group has received information from
both the Government and the source on these
issues.
25. The Government indicated that the CIPA
provides for an appellate review of decisions made
by a trial court (as in this case) and that the
CIPA, as such, is only a procedural statute that
neither adds nor detracts from the substantive
rights of the defendant and the discovery of
evidence obligations of the Government. Rather, it
balances the rights of a criminal defendant with
the right of the Government to know in advance of
a potential threat, from a criminal prosecution,
to its national security. The CIPA provisions are
designed to achieve the prevention of unnecessary
or inadvertent disclosures of classified
information and of advising the Government of the
national security risk in going forward with these
proceedings.
26. The source replied that it has never contested
the validity of the law, but rather its incorrect
enforcement. It states that after collecting over
20 000 pages of documents (none classified)
through the above process, all of which were
documents of the defendants, the Government
classified each and every page “Top Secret” as if
they were secret Government documents. The
Government invoked the provisions of the
Classified Information Procedures Act, which
allowed the Government to restrict access of the
defense to the defense’s own documents and thereby
control the available evidence at trial.
27. The Working Group must decide, in light of
what precedes, if in this trial there has been an
adherence to the international norms of a fair
trial. The competence of the Working Group,
therefore, does not imply neither any
pronouncement on the guilt of the individuals
deprived of their liberty nor the validity of the
evidence, and even less to substitute itself to
the Appellate Court which is handling the case. To
have full information about the case, the Working
Group would have preferred to see the judgement of
the Appellate Court, however, since the appeals
suffer a delay the Working Group cannot postpone
any further the opinion that it has been asked to
issue within the terms of its mandate.
28. From the information received, the Working
Group observes the following:
(a) Following their arrest, and notwithstanding
the fact that the detainees had been informed of
their right to remain silent and had their defense
provided by the Government, they were kept in
solitary confinement for 17 months, during which
communication with their attorneys, and access to
evidence and thus, possibilities to a adequate
defense were weakened,
(b) As the case was classified as one of national
security, access by the detainees to the documents
that contained evidence was impaired. The
Government has not contested the fact that defense
lawyers had very limited access to evidence
because of this classification, negatively
affecting their ability to present counter
evidence, This particular application of the legal
provisions of the CIPA, as made in this case and
as the information available to the Working Group
reveals, has also undermined the equal balance
between the prosecution and the defense,
(c) The jury for the trial was selected following
an examination process in which the defense
attorneys had the opportunity and availed
themselves of the procedural tools to reject
potential jurors, and ensured that no
Cuban-Americans served on the jury, Nevertheless,
the Government has not denied that even so, the
climate of bias and prejudice against the accused
in Miami persisted and helped to present the
accused as guilty from the beginning. It was not
contested by the Government that one year later it
admitted that Miami was an unsuitable place for a
trial where it proved almost impossible to select
an impartial jury in a case linked with Cuba.
29. The Working Group notes that it arises from
the facts and circumstances in which the trial
took place and from the nature of the charges and
the harsh sentences given to the accused, that the
trial did not take place in the climate of
objectivity and impartiality which is required in
order to conclude on the observance of the
standards of a fair trial, as defined in Article
14 of the International Covenant on Civil and
Political Rights, to which the United States of
America is a party.
30. This imbalance, taking into account the severe
sentences received by the persons under
consideration in this case, is incompatible with
the standards contained in Article 14 of the
International Covenant en Civil and Political
Rights that guarantee that each person accused of
a crime has the right to exercise, in full
equality, all the adequate facilities to prepare
his defense.
31. The Working Group concludes that the three
elements that were enunciated above, combined
together, are of such gravity that they confer the
deprivation of liberty of these five persons an
arbitrary character.
32. In light of the preceding, the Working Group
issues the following opinion:
The deprivation of Iiberty of Messrs. Antonio
Guerrero Rodriguez, Mr. Fernando
González Llort, Mr Gerardo Hernández Nordelo, Mr.
Ramón Labañino Salazar and Mr. René González
Sehweret is arbitrary, being in contravention of
article 14 of the International Covenant on Civil
and Political Rights and corresponds to category
III of the applicable categories examined in the
cases before the Working Group.
33. Having issued this opinion, the Working Group
requests the Government to adopt the necessary
steps to remedy the situation, in conformity with
the principles stated in the International
Covenant on Civil and Political Rights.
Adopted on 27 May 2005
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