VI. Due Process Violations

Cuba systematically violates the due process rights of dissenters from the moment they are arrested through their sham trials. Prior to their trials, political detainees[170] are routinely denied access to legal counsel and family visits, often meeting their attorneys just minutes before their hearings. Political detainees are also routinely held in inhumane and dangerous conditions, and are subjected to abusive interrogations. Neither detainees nor their families are adequately informed about the charges against them, and detainees may languish for months or years in prison without ever being formally tried for a crime. This system of due process violations, entrenched during the rule of Fidel Castro, remains active under Raúl Castro.

Nearly all trials of political detainees are closed hearings lasting less than an hour. During trials, judges and prosecutors impede dissidents’ right to a fair trial by arbitrary actions such as falsifying evidence and denying defendants the right to speak in their defense. Political prisoners who are granted parole may have their conditional freedom revoked any time they are deemed to have engaged in “counterrevolutionary” activities. Human Rights Watch was unable to document a single case under the Raúl Castro government where a court acquitted a political detainee.        

Failure to Provide Information to Detainees and Families

Cuban law dictates that, upon arresting someone, authorities are immediately supposed produce a written act documenting the time, date, and motive for the arrest, signed by the relevant officer and the detainee.[171] The law also stipulates that police should inform the detainee’s family of the arrest and facilitate contact between the detainee and his or her family.[172] Prosecutorial investigators (instructores) are required to inform detainees of why they are being detained and the charges against them.[173] 

Yet from the time of their arrest through pre-trial detention period, dissidents say, authorities fail to inform them of the reason for their confinement. When political activist William Reyes Mir was arrested and taken to a police station in September 2007, he asked several times why he had been detained, but officers ignored him. According to Reyes, “They detained me for five days of punishment without telling me why I was there, nor what they were going to do to me.”[174]

Families are routinely kept in the dark regarding the imprisonment of relatives who are political detainees. In dozens of cases investigated by Human Rights Watch, authorities prohibited dissidents from contacting family members after their arrest, and failed to notify families that their relatives had been detained. We documented a half-dozen cases in which authorities withheld information from inquiring relatives or even deliberately misled them by providing false information regarding detainees’ whereabouts and legal status.

A member of an unofficial pro-democratic political party, “Jorge Barrera Alonso” was detained in 2006 while handing out copies of the Universal Declaration of Human Rights. As recounted above, when his wife heard from his friend that he had been detained, she went to various police stations to find out where he was being held. Every station denied having Barrera in custody and claimed to have no information regarding his arrest. It was not until several days later, after Barrera’s wife had filed a formal complaint at a government office, that she received a call from an officer at one of the stations she had visited acknowledging that they were detaining her husband.[175] 

Restrictions of Family Visits

Even when families determine where a loved one is being held, they are routinely denied the opportunity to visit him or her before trial, or only allowed to meet for extremely short periods of time. International law states that authorities should allow detainees to receive visits from family members while in detention.[176] Former detainees and their relatives also told Human Rights Watch that, when allowed, short visits were openly monitored by guards, who prohibited any discussion of the detainee’s arrest, trial, or any issue of a political nature.

Juan Luís Rodríguez Desdín, who was arrested in July 2006, said he had no contact with his family in the week between his arrest and his trial. A human rights defender and member of an unofficial political group, Rodríguez was later charged with “dangerousness.”[177] Authorities did not allow Gertrudis Ojeda Suave to receive visits from her mother or daughter during the eight days between her arrest and the trial in 2002. Also charged with “dangerousness,” she said the time apart had been especially traumatizing for her three-year-old daughter.[178]

Rufina Velásquez González was allowed to visit her father—who had been arrested while marching peacefully across Cuba to demand respect for human rights—in the days before his trial in January 2007. But she said when they began to discuss the reason for his arrest, guards intervened. According to Velásquez, “They cut off our conversation because we were talking about what constitutes injustice. And then they pulled me by the arm and took me out. They said, ‘The visit is over. You can’t be talking about these things with your father.’” When she tried to visit her father days later, she was turned away without explanation.[179]

Lack of Access to Legal Counsel

The Cuban constitution states that citizens have the right to a defense,[180] and the Criminal Procedural Law grants detainees the right to meet privately with their attorneys.[181] Yet in practice, political detainees are systematically denied the chance to meet confidentially with defense lawyers during pre-trial detention.

Dozens of former political prisoners and family members of current prisoners told Human Rights Watch that detainees are not allowed to meet with their lawyers until the day of their trials, when they are given just a few minutes to introduce themselves. In the rare instances when political detainees are allowed to meet with their lawyers during pre-trial detention, the visits are limited to a few minutes and monitored by guards, infringing on defendants’ right to confidential meetings with their legal counsel.[182] Lawyers’ lack of access to their clients significantly hinders their ability to prepare an adequate legal defense.

Across Cuba, human rights defenders report a pattern of systematic denial of access to their legal counsel. When Juan Luís Rodríguez Desdín was arrested in July 2006, his wife quickly contracted a lawyer to defend him. But the lawyer was not allowed to visit Rodríguez before his trial, he said, and the state prosecutor would not inform the lawyer with what crime he would be charged. Rodríguez did not meet his lawyer until the day of his trial.[183] In the ten days between when he was arrested and brought to trial in January 2008, political and human rights activist Eduardo Pacheco Ortízwas not allowed to meet with a lawyer, despite repeated requests to do so.[184]

State prosecutors provide additional obstacles by obscuring or withholding information regarding the charges and evidence against detainees, and by giving minimal notice as to the timing of pending trials. This obfuscation is permitted by the Criminal Procedural Law, which allows prosecutors to withhold charges and evidence from the defense in exceptional circumstances “for reasons of state security.”[185] As detailed below, this disparity in information sets the stage for an imbalanced trial.

Family members of political detainees often have a difficult time finding lawyers to take on their cases, either because of the risk lawyers perceive in defending persons branded as “counterrevolutionaries,” or because lawyers see the outcome of such cases as predetermined and thus not worth contesting.

Human Rights Watch documented three cases in which state officials reportedly advised defense lawyers not to take on cases of dissidents. The lawyer defending Nelson Curbelo Rodríguez, a member of an unofficial political group, was warned by a state prosecutor before the trial not to take Curbelo’s case, according to a human rights defender who spoke with the lawyer. “Do you know who you are going to defend?" a prosecutor reportedly asked Curbelo's lawyer. "This guy is a dissident. Be careful of getting involved with dissidents.”[186]

Miriam Leiva—the wife of journalist Óscar Espinosa Chepe, who was detained in 2003—told Human Rights Watch:

I talked to a lawyer who refused to represent Oscar because he knew that all the sentences had already been decided and said he was not going to waste his time performing an act of theater.... Two defense lawyers [were] talking nearby. I heard them say, “Can you imagine? They made me defend this guy, a dissident. Why would I get myself into trouble for that?”[187]

Forced Interrogations

Political detainees also are subjected to forced interrogations by state security officers. This practice directly violates Cuban law, which explicitly states: “Neither violence nor coercion of any sort will be used to force people to testify.”[188] 

Former political detainees held at many different detention facilities told Human Rights Watch that interrogation sessions were aimed at eliciting confessions and collecting information about dissident activities. They said that security officers repeatedly threatened them with harsher sentences if they did not confess and used tactics including sleep deprivation, solitary confinement, abrupt changes in temperature, and incessant bright lights and loud music.

Raymundo Perdigón Brito—a journalist who was arrested in Sancti Spíritus in November 2006 and charged with “dangerousness”—was held for over a week before his trial. According to his sister, whom he later told of his experience:

During these days he found himself detained in punishment cells, where there exist methods to soften prisoners. He left very confused, wasting away mentally. They used various psychological methods to torment and intimidate him there. They would wake him up at any hour, they would turn on the water at three or four in the morning, they would interrogate him in total darkness. They accused him falsely, and told him that he would receive a longer sentence than the one he had.[189]

Pedro Pablo Álvarez Ramos—a trade unionist who tried to form an alternative to the official government union—described similar tactics by authorities during his pre-trial detention in Havana. For nearly five weeks, he said, he was moved back and forth between a small cell he shared with prisoners convicted of violent crimes and a solitary confinement cell. Bright lights in solitary confinement were left on 24 hours a day, and he was subjected to repeated interrogations:

It was harsh, aggressive, threatening. They told me that they were seeking a life sentence, a firing squad. They called me a traitor, trying to suggest that we were actually agents of the [US] empire. It was a grotesque and very intense thing. They call you to do an interrogation at two in the morning. You lose track of time when it isn’t mealtime. You live in great psychological tension.... Always with the threatening attitude: “you are going to rot in jail.”[190]

Abusive Pre-Trial Detention Conditions

Political detainees are subjected to abusive detention conditions prior to their trials. Among other abuses, political detainees are routinely given insufficient and contaminated food and water; deprived of bedding and the facilities needed to maintain basic hygiene; and denied medical attention in cases of need. These conditions violate international law.[191] International law also requires that untried detainees be kept in separate facilities from convicted prisoners.[192] As already noted, Human Rights Watch found that Cuba consistently violates this provision, forcing political detainees to share overcrowded cells with persons convicted of violent offenses.

“Juan Alfonso,” a member of an unrecognized pro-democracy group, was detained in Holguín in October 2008. He said he was taken to a police station and placed in a cell with two convicted prisoners that was barely large enough to accommodate the three men lying down. He was not provided with a mattress or a blanket, and spent his nights sleeping on the exposed cement floor. The only water he had access to dripped from a small tap protruding from one of the cell walls. He and other prisoners shared a single container to eat, drink, and wash themselves. In the center of the cell was an uncovered squat toilet, which filled the small, poorly ventilated space with a nauseating smell. Authorities did not allow Alfonso to go outside during his four days of pre-trial detention, during which he said he contracted a staph infection in his genitals from the unhygienic conditions. Neither his family nor a lawyer was allowed to visit him.[193]

Manuel Vázquez Portal, an independent journalist who was arrested in the March 2003 crackdown, described his pre-trial detention as follows:

They locked me in a cell that was one-and-a-half meters by two meters with three other detainees. It is torture to be with three men in a cell meant for one person, with the light on 24 hours a day.  It has a steel door that makes a terrible noise when it is opened and closed, and they slam the door constantly to prevent you from sleeping at night or during the day. In the cell it is very hot and when they transfer you to the interrogation office the temperature is much lower and it is very cold.... They interrogated me four times in private offices of the Political Police. From the moment you arrive they treat you as though you’re guilty.[194]

Indefinite Detention

Some political detainees may be held for years without ever being charged with a crime, languishing in a pre-trial investigatory phase that can be extended indefinitely. Cuba’s Criminal Procedural Law states that the period of investigation to prepare criminal charges should not exceed 60 days, but may be extended to a “maximum term” of six months. However, the law leaves a loophole for exceptional cases in which high-ranking officials may grant further extensions of the investigatory period.[195]

Human rights defender René Gómez Manzano, a lawyer by trade whose license was not renewed after he became active in unofficial groups critical of the government, was arrested on July 22, 2005, shortly after participating in a small, peaceful protest in Havana urging the European Union to take a tougher stance toward Cuba. Although he was never formally charged with a crime, Gómez was held for more than a year and a half in prison with convicted prisoners until he was released on February 8, 2007. Over the course of his detention, his brother filed three separate acts of habeas corpus on his behalf, all of which were dismissed.[196] At the time of his release, Gómez had never been charged with a crime.[197]

Vladimir Alejo Miranda, a human rights defender in Havana, was detained in December 2007 after carrying a sign in public demanding the release of political prisoners.[198] At the time of this report, he had yet to be tried for a crime, and was being held with convicted prisoners in Agüica prison in Matanzas.

Dr. Darsi Ferrer Ramírez, who ran an unofficial medical clinic and human rights center in Havana, was arbitrarily detained on July 9, 2009—the same day he had planned to hold an unofficial public gathering in Havana where people could come and “share their common dreams” for the future of the island, he said.[199] He was released at the end of the day after the planned time had passed, only to be arrested again on July 21 and sent to Valle Grande prison in Havana. Ferrer has been in prison since his arrest, but at the time of publication, had yet to stand trial.

 

Summary Trials

When political detainees are brought to trial, they are almost always tried in summary proceedings that violate their right to a fair trial. While summary judgments are permitted by Cuban law, such proceedings are only supposed to be allowed in “exceptional circumstances.”[200] Yet scores of cases reviewed by Human Rights Watch suggest that summary trials in political cases are the rule, rather than the exception.[201] Nearly every former prisoner and relative of a current political prisoner interviewed for this report alleged that the trials of dissidents lasted less than an hour, with most taking between 10 and 30 minutes.

Summary trials provide less time to question witnesses, review evidence, and mount a comprehensive defense.[202] They also exacerbate the inequalities produced in the pre-trial period, when prosecutors enjoy full access to the accused, are informed of the charges, and can review the evidence, whereas defense attorneys are denied most, if not all, of the same information.

Alexander Santos Hernández, a political activist in Holguín, described the swiftness of his arrest and sentencing in July 2006 as follows, “[The police] picked me up at 5:50 am while I was at home sleeping, and by 8:30 that morning they were already reading me my sentence. From there to the jail cells of Holguín, and straight to prison.”[203]

Víctor Yunier Fernández Martínez, who belonged to an unsanctioned political group that advocated for human rights and democracy, was tried for “dangerousness” in 2006. He said his trial lasted less than ten minutes. The legal proceedings consisted of the prosecutor reading his indictment and the judge accepting the recommendation to sentence him to three years in prison. According to Fernández, the judge did not allow him to speak during the proceedings; no witnesses testified against him; and his lawyer, whom he met for the first time minutes before the trial, made no effort to defend him.[204]

Closed Trials

Access to the trials of political defendants is highly restricted, violating their right to a public trial.[205] The Criminal Procedural Law grants judges broad authority to close trials at any stage for reasons of state security, morality, or public order.[206] If construed in a sufficiently narrow fashion, each of these reasons could serve as a legitimate justification for barring the public from trials in certain circumstances. However, the Cuban judiciary’s widespread and systematic use of closed trials appears designed to prevent transparency and provide cover for the contravention of basic due process rights. The law bars everyone related to the defendant except his lawyer from attending closed trials.[207]

Even when trials are not officially closed, authorities consistently fail to notify family members of political detainees about trials, or deliberately mislead relatives about when and where hearings will be held. In other cases, authorities inform families such a short time before trials start so as to make it impossible for them to attend. These tactics have the effect of creating de facto closed trials even when they are not officially mandated by judges. Independent observers, including human rights defenders and journalists, are consistently barred from attending hearings.

On August 31, 2008, Niover García Fournier heard from friends that his brother, political activist Yordis García Fournier, had been detained. Niover went directly to the police station, where police said Yordis would be fined and released the following day, yet offered no additional details. When Niover returned the next day, police said the state prosecutor had decided to review Yordis’s case for possible criminal charges. Niover returned to the station several times, but authorities would not give him any additional information about his brother’s status. On September 3, 2008, police told Niover the state prosecutor had decided to try his brother for contempt (desacato). Niover rushed to the prosecutor’s office, where he was informed that his brother would be put on trial that day. By the time Niover made it to the court, his brother had already been sentenced to a year in prison in a hearing that took less than an hour. The state had not notified any of Yordis’s family members of his trial. His family did not even know the reason he had been arrested.[208]

Ana Margarita Perdigón Britosaid dozens of neighbors, extended family members, human rights defenders and political activists attempted to observe the trial of her brother, Raymundo, in December 2006. But security officers would not allow any of them to attend the trial. Raymundo, a journalist, had been charged with “dangerousness.” He was sentenced in a closed trial that only his immediate family members were allowed to attend.[209]

Cubans from a range of different provinces told Human Rights Watch that authorities often detain government critics to prevent them from attending the trials of other dissidents. According to Rodolfo Bartelemí Coba, a human rights defender in Guantanamo:

As opponents [of the government], several of us have been detained on various occasions so that we couldn’t be present at the trials. At times, they have told us “you cannot leave your house until 4 o’clock in the afternoon,” and they put an official or a police officer on the corner or in front of your house to keep an eye on you.[210]

Further undermining transparency of the judicial process, Cuban authorities routinely fail to provide copies of sentences to political prisoners or their families. International law states that all judgments should be made public, even in closed trials.[211]

Arbitrary Actions by Prosecutors and Judges

The prosecution of dissidents in closed, summary trials, in a system designed to criminalize dissent, leaves them vulnerable to rampant abuses during judicial proceedings. Dissidents interviewed by Human Rights Watch reported grossly arbitrary actions by prosecutors, judges, and defenders in their cases, which further violated their right to a fair trial.

In six cases investigated by Human Rights Watch, former political prisoners and the families of current prisoners said that prosecutors fabricated confessions or other pieces of evidence.

One such case was that of William Reyes Mir, a political activist from Holguín, who was charged with “dangerousness” in September 2007. Reyes said authorities forged his signature on several official warnings for “antisocial behavior.”[212] He said the warnings were the main evidence used against him in his trial, which lasted less than 15 minutes. According to Reyes:

I met [my] lawyer the moment I stood in front of the Court. At that moment, he called me over and asked, “Are these ‘official warnings’ yours? Why did you sign them?”

I told him, “Let me read them, because I’ve never seen them.” I took them and read them and said, “These warnings are not mine. They have never been read to me, nor have I been told to sign a warning that has these things.”

So I said, “I’ll sign my name, even with my eyes closed it comes out the same, because I sign in only one way.”

Then I did it, I showed him that [the signature on the warnings] was not my signature. He even saw my ID and saw my real signature and saw that truly the other was not mine.... There in court you cannot get upset, you cannot argue. You must be quiet because the more you defend yourself and the more you complain, the worse the trial comes out.[213]

Reyeswas sentenced to two years of forced labor for “dangerousness.”

Former political prisoners routinely said judges would not allow their lawyers to present evidence in support of their innocence.[214] When Eduardo Pacheco Ortíz—a political and human rights activist from Matanzas—was charged with “dangerousness” in January 2008, his wife collected over 20 letters from neighbors declaring that he was an upstanding community member. Pacheco said the letters disproved the prosecutor’s allegation that he was a drunk who posed a threat to his neighbors. But the judge refused to even admit the letters, Pacheco said. He was sentenced to three years in prison for “dangerousness.”[215]

In four cases, dissidents told Human Rights Watch that judges forbade them from speaking at any point during their trials. What’s more, former prisoners and family members of current prisoners routinely said state-appointed defenders failed to provide an adequate legal defense. Víctor Yunier Fernández Martinez said his lawyer made no attempts to counter the prosecutor’s arguments during his 2006 trial for “dangerousness.” As noted above, journalist Ramon Velásquez Toranzo’sdefense lawyer offered a vigorous defense at the beginning of his hearing for “dangerousness.” But after being called into the judge’s quarters during a recess the lawyer stayed quiet for the rest of the trial.[216]

Almost a dozen former prisoners said their lawyers explicitly warned them not to challenge the charges against them and to forsake their right to appeal to avoid longer sentences. For example, Rafael Meneses Cuco—a farmer who publicly criticized elections and was sentenced for “dangerousness” in January 2008—said his state-appointed lawyer warned him that if he appealed he would receive a harsher sentence. As a result, he said he decided not to appeal his sentence of two years’ forced labor on a sugar plantation.

Parole and the Threat of Retraction

The Cuban Criminal Code gives judges the power to grant parole (licencia extrapenal) in cases when “it is deemed necessary,”[217] and states that parole can be revoked if the prisoner does not engage in “good conduct.”[218] Both provisions are vague, leaving judges and other officials a great deal of discretion and few safeguards to prevent dissidents being denied parole for political reasons or having it revoked once it has been granted. Determinations about parole and decisions to revoke it should follow due process standards, as they determine whether someone shall continue to be deprived of his or her liberty.

Released political prisoners repeatedly told Human Rights Watch that when parole was granted, authorities warned them that any exercise of dissent would result in their being returned to prison. Such warnings, dissidents said, were intended to dissuade them from engaging in work that could be seen as critical of the government.

Journalist Óscar Espinosa Chepe was released on medical grounds on November 29, 2004, after having been arrested in the 2003 crackdown. He told Human Rights Watch that his release document reads: “Parole for the term that is deemed necessary or until he recovers his health.” Chepe, who continues to live in Havana, has returned to his work as a journalist, publishing articles critical of the government in foreign outlets. As a result, he said he has received several warnings from government officials threatening to rescind his parole, including a telephone call in 2006 from the judge who had granted the parole. The judge told Chepe that his freedom “could be revoked at any moment,” if the judge chose.[219]

The case of dissident Hugo Damián Prieto Blanco, recounted above,shows how swiftly authorities can revoke parole for those who voice dissent. Prieto had completed three years and five months of a four-year sentence when he was granted conditional release in February 2008. Upon release, he resumed his participation in unofficial political groups, which had led to his being charged with “dangerousness” in 2004. He was arrested again in August 2008 and returned to prison. When authorities arrested Prieto, they said he was being returned to prison for engaging in “counterrevolutionary activities.”[220]

In February 2008, the Cuban government released four political prisoners—Pedro Pablo Álvarez Ramos, Omar Pernet Hernández, José Gabriel Ramón Castillo, and Alejandro González Raga—on the condition that they accept forced exile to Spain. The prisoners, all of whom were arrested in the 2003 crackdown, were forced to choose between freedom in Spain and continued imprisonment in Cuba. Authorities explicitly told them they would not be able to return to Cuba once they had gone to Spain, said Álvarez.[221]