Voices of Support

U.N. WORKING GROUP on ARBITRARY DETENTION

(HUMAN RIGHTS COMMISSION)

OPINION No. 19/2005 (UNITED STATES OF AMERICA)

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:
   1. 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);
   2. 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);
   3. 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:
   1. 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;
   2. 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
   3. 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];
   4. 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
   5. 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.

18. . 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.
19. . 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.
20. . 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.
21. . 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.
22. . 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.
23. . 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:
    1. How the Classified Information Proceeding Act (CIPA) was applied in this case;
    2. Did the eventual application of the above-mentioned Act affect the case in terms of access to evidence?
    3. 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.

24. 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.
25. . 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.
26. . 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.
27. From the information received, the Working Group observes the following:
    1. 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,
    2. 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,
    3. 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.
28. 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.
29. 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.
30. 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.
31. In light of the preceding, the Working Group issues the following opinion:

    The deprivation of Liberty 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