COMMITTEE AGAINST TORTURE STARTS CONSIDERATION OF REPORT OF CUBA
22 May 2012
The Committee against Torture this morning began its consideration of the second periodic report of Cuba on how it implements the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Introducing the report, Rafael Pino Becquer, Deputy Attorney General of Cuba, said Cuba became a party to the Convention against Torture in 1995 and had complied with its obligations although it was prevented from exercising its sovereignty in the territory illegally occupied by the United States’ Naval Base in Guantanamo Bay, which had become an international centre for torture. The penitentiary system was a key area that Cuba was dissatisfied with, and to improve it an investment plan running until 2017 had been put in place to gradually restore the prison structure and improve living conditions for inmates. Cuban legislation covered places where persons were deprived of their liberty and fundamental guarantees protected those persons from torture or cruel or degrading treatment. There was no space for impunity in Cuba. True human rights defenders were protected in Cuba where nobody had been prosecuted or punished for exercising their human rights, including freedom of expression and assembly.
Fernando Menendez, Committee Expert serving as Rapporteur for the report of Cuba, said Cuba was a small country which had made huge achievements in health, education and social progress. However the report lacked information on the current situation in Cuba, particularly statistics, which made it very difficult for the Committee to specifically address the situation in Cuba.
Nora Sveaass, Committee Expert serving as Co-Rapporteur for the report of Cuba, referred to reports that detainees were sometimes held in isolation in very cold cells as a form of punishment and limitations on non-governmental organizations making prison visits. She also raised alleged harassment of human rights defenders and journalists.
Committee Experts raised questions about poor prison conditions, the use of solitary confinement, the fact that torture was not a specific crime, the death penalty, ‘short detentions’ and arbitrary detention, conditions in psychiatric hospitals, military jurisdiction, redress for victims of torture, and cases of detainees on hunger strike.
In remarks at the end of the meeting , Mr. Pino Becquer thanked the Committee and raised concerns that some questions were based on gross lies and made value judgements, and also about the fact that cameras were present in the meeting.
Claudio Grossman, Committee Chairperson, replied that that was how the Committee worked: questions were asked and the delegation would receive ample opportunity to respond tomorrow. It was a public meeting and by definition anybody could take any notes if they wanted and people were free to make their own opinions and judgements.
The delegation of Cuba consisted of representatives from the Attorney General’s Office, the Supreme Popular Court, the Ministry of Foreign Affairs, the Ministry of the Interior, and the Permanent Mission of Cuba to the United Nations Office at Geneva.
The Committee’s next public meeting will be at 3p.m. this afternoon when it hears the replies of Canada. The replies of Cuba will be heard at 3 p.m. on Wednesday, 23 May 2012.
The second periodic report of Cuba can be read here: (CAT/C/CUB/2).
Presentation of the Report
RAFAEL PINO BECQUER, Deputy Attorney General of Cuba, said that until 1959, torture and cruel or degrading treatment or punishment were everyday events which reached a climax in the days of the bloody dictatorship of Batista. That policy ended with the 1959 Cuban Revolution and its deep humanitarian and ethical content. On 17 May 1995 Cuba became a party to the Convention and it complied with its principles and obligations throughout the national territory, although it was prevented from exercising its sovereignty in the territory illegally occupied by the United States’ Naval Base in Guantanamo Bay, which had become an international centre for torture. The penitentiary system was a key area that Cuba was dissatisfied with, and to improve it an investment plan running until 2017 had been put in place to gradually restore the prison structure and improve living conditions for inmates. The prison system included, among its areas of compliance, a list of 95 provisions entitled ‘Rules for the Treatment of Prisoners’. Educational programmes had had a positive impact on the prison population, of which 47 per cent was now being educated, 43 per cent was learning a trade, and since 2002 3,079 inmates had competed university studies. In the last year, as a humanitarian and sovereign gesture, 2,992 inmates were granted clemency. Between 2007 and 2011 there were 263 complaints of mistreatment in places of detention, which were investigated by the Public Prosecutor, who found 46 law enforcement officers to be criminally liable.
Cuban legislation covered places where persons were deprived of their liberty and fundamental guarantees protected those persons from torture or cruel or degrading treatment. The State took necessary measures to prevent acts forbidden by the Convention. There was no space for impunity in Cuba. Acts of torture were crimes described and established by law. However, the Government was not satisfied and continued to make progress, so to prepare for a People’s National Assembly-backed reform of the Criminal Code critical analyses and studies were being carried out. The economic blockade imposed by the United States was a major difficulty, as it affected all aspects of life in Cuba and had had a direct effect on the economy amounting to $104 billion. As with many developing countries, Cuba’s statistical data still did not give the appropriate levels of information required. Criminal legislation did not specifically establish gender violence as a crime but it did punish criminal acts which could be considered acts of violence in general.
Cuba was still subject to a policy of hostility by the Government of the United States in order to bring about so-called ‘regime change’, or a change in the Constitutional Order which had been freely chosen by the Cuban people. In order to ensure that its campaign prevailed, the United States had launched an intense media and political campaign in an attempt to lie and distort facts to affect the United Nations human rights machinery. Cuba sought an objective, impartial and unprejudiced assessment of its human rights record. Some questions in the list of issues were based on false allegations, for example the one on hunger strikes in prisons. Medical attention was always given to persons on hunger strike, as for any Cuban person. Furthermore, in Cuba, true human rights defenders were protected: nobody had been prosecuted or punished for exercising their human rights, including freedom of expression and assembly.
Questions from Rapporteurs on Cuba
FERNANDO MENENDEZ, Committee Expert serving as Rapporteur for the Report of Cuba, said he had studied information on Cuba from bodies including the Human Rights Council Universal Periodic Review and the Inter-American Human Rights Commission. Cuba was a small country which had made huge achievements in health, education and social progress. As the delegation highlighted, Cuba had a very powerful neighbour which to some extent was hostile to the Cuban regime and had sparked off a range of political consequences. However, the Committee believed in general terms that human, social, economic and civil rights were indivisible, as set out in the 1992 Vienna Declaration that Cuba subscribed to, and was the whole philosophy underpinning the United Nations system. Rather than infringing on their sovereignty, today most States saw themselves as being subject to international law, in this case international human rights law. The report lacked information on the current situation in Cuba, particularly statistics. In his presentation the Head of Delegation had briefly referred to complaints of mistreatment but that was not enough; more information was needed and without it, it was very difficult for the Committee to specifically address the situation in Cuba.
Cuban Criminal legislation still did not expressly define torture, although a range of offences under Criminal Law could potentially cover the crime of torture. The Committee always recommended that, given torture was sufficiently serious and widespread to stand alone as a crime, all State parties make torture a specific crime. Could the Convention be directly applied in Cuban courts, be invoked by judges and were there any cases where that had happened? The Committee believed that the death penalty in itself constituted inhuman treatment. It was not completely prohibited in Cuba, although capital punishment has not been applied since 2003, so the Committee was happy to see a de-facto moratorium. Would the State party fully outlaw the death penalty?
In the absence of statistics in the report, the Rapporteur asked for information on the workings of the police service, criminal investigations and the detention process, aimed at preventing the practice of torture. There was a phenomenon known as ‘short arrests’ or short detentions, which usually only lasted 24 hours, and presumably had a specific purpose – namely controlling the activities of certain elements – and was perhaps politically related. The Inter-American Human Rights Commission referred to them as arbitrary detentions, especially as the short detentions were not registered. The State party said it had effective habeas corpus: were those detentions covered by that? In a 2011 report the Inter-American Human Rights Commission said that the subordination of courts to the State Council represented direct reliance of the judiciary on judgements handed down by the Government – could the delegation comment on the independence of the judiciary? How far did military jurisdiction extend, could civilians be tried in military courts and what about the use of summary trials? What was the difference between provisional and pre-trial detention? Were any administrative detention centres – usually termed secret places of detention – not supervised by the Attorney General or other judges? How many existed, and how many persons were detained in them? When people died in detention, for example Mr. Juan Garcia on 8 May 2011, how were their deaths investigated, how many investigations had been carried out, and were the results made public?
The Rapporteur asked about the rights of stateless persons, refugees, and the right of return for Cubans living abroad. Cuban expatriates were still subject to criminal proceedings and if they returned to Cuba could be tried in a court. Many of those Cubans abroad, including children, were effectively stateless. The Committee had received worrying information about people who were deprived of free travel within Cuba as a punishment or control, an internal exile. Who granted or controlled the freedom to move in Cuba? The Cuban Government was generous when it came to asylum seekers, but irregular migrants could be in a legal limbo. For example Haitian irregular migrants were recently returned to Haiti without any real procedure, or use of the principle of non refoulement.
NORA SVEAASS, Committee Expert serving as Co-Rapporteur for the report of Cuba, welcomed the report although she regretted it was some years late. The report covered a range of information, some areas more extensively than others, as did replies to the list of issues. The State party said that the report was produced by a broad and inclusive group of organizations, so could they please name the non-governmental organizations which contributed to it? The State party emphasized that incommunicado detention did not exist, that detention upon arrest may not exceed 24 hours and that every detainee had access to a doctor. What oversight mechanisms ensured that detainees were informed of their right to appoint a lawyer? Could the State party give the Committee any idea of the size of the prison population, as the few percentages provided did not add up? It was reported that detainees were sometimes held in isolation in very cold cells, with no clothes, as a form of punishment. Could the delegation comment on that? The State party said that the Attorney General regularly visited places of detention, in coordination with the International Committee of the Red Cross, but some human rights organizations had said that visits by the International Committee of the Red Cross were sometimes limited and they were not allowed to speak in private with detainees. Could the delegation elaborate on which bodies had the right to make unannounced visits and speak with detainees in private?
Regarding alleged harassment of human rights defenders and journalists, the State party said the individuals named in the List of Issues were not genuine human rights defenders. Nevertheless, those people were human beings who should be taken seriously, allowed their human rights and not exposed to harassment. The Committee had received many reports referring to routine arrests by the National Revolutionary Police of persons who staged peaceful public demonstrations for offences such as ‘disrespectful behaviour, distributing enemy propaganda or resistance to the authorities’. Could the delegation also comment on commonplace surveillance of civilians and acts of intimidation and harassment of persons including children who the Government said ‘pose a risk’, for example the Ladies in White group?
Regarding psychiatric hospitals, those responsible for the tragic deaths of 26 people in the Havana Psychiatric Hospital who died of cold in January 2010 were recently sentenced for crimes of neglect and embezzlement. People do not die of neglect overnight, it must have been over a long period of time, said the Co-Rapporteur, so what was being done to ensure that such a tragedy did not happen again? What redress had been given to the surviving patients and family members of those who died? The report referred to a possibility of indemnification following a court decision, but as the State party was aware, the Committee held the right of victims of torture to redress as very highly; was it correct that redress was available only upon a court decision and following a criminal sentence?
Questions from Experts
An Expert expressed disappointment about the deficit of precise information in the extremely vague report. He asked whether an individual arrested or detained was entitled to be examined by a doctor of his choice, at his own cost. The report was ambiguous as to the period for examining proceedings. There was a case where habeas corpus was ruled out, in a military trial, why was that? What system of protection was available to an agent who received an illegal order to commit an act of torture, and how could a person in that situation react without being sanctioned by his superiors? The report mentioned a compensation fund for victims of torture, which was in principle based on a legal ruling. What was the role of that fund and what did it settle?
Unhealthy conditions in prisons were widely-reported and included overcrowding, malnutrition, lack of hygiene and inadequate healthcare. The State party said there had been no deaths in custody as a result of wrong-doing since 1997. According to information received by the Committee, persons detained for political reasons were systematically held in solitary confinement, underwent beatings, political re-education programmes, and visiting restrictions. Could the delegation provide information on such alleged degrading treatment? Furthermore, the Committee would welcome information on the following cases of hunger strike: Orlando Tamayo, Guillermo Farinas, Darsi Ramirez, Franklin Peregrino, Jose Ubaldo Fernandez, Juan Toranzo, Iris Aguilera, Jorge ‘Atunez’ Perez, Diosiris Perez and Segundo Gonzalez.
The case of United States citizen Alan Gross, who was detained in Cuba in 2009 and sentenced to 15 years imprisonment, was raised. Mr. Gross had been allowed to phone TV broadcaster CNN, who he told he had lost 100 pounds in prison and spoke about poor food with insects in it and poor prison conditions. Even former United States President Jimmy Carter had visited Cuba and asked for Mr. Gross’s release; could the delegation comment on his current status?
An Expert said he was deeply impressed that despite being a developing country Cuba was ranked as one of the highest in the world in terms of healthcare and education provisions, as highlighted in its Universal Periodic Review. He then asked whether the principle of presumption of innocence and the right to silence had been incorporated into national legislation. Returning to the death penalty, he said that capital punishment could be given for many crimes, including terrorism, armed action against the State, disturbance of the peace, hostile acts, sabotage against the State, mercenarism, drug trafficking and possession, abnormal development of sexual relations, violent killings, corruption, and so on. The very broad list of crimes was subjective and not properly defined. The death penalty could be applied after a three-day, secret summary trial, particularly for those convicted of terrorism. Despite the present moratorium, capital punishment was still on the books and could be carried out.
Initial Concluding Remarks
RAFAEL PINO BECQUER, Deputy Attorney General of Cuba, thanked the Committee for their questions and said there were no taboo topics for Cuba. He had a concern regarding the Committee’s working methods, that some questions seemed to make value judgements, and said he was worried that the idea of due process left the delegation in a difficult position. Some questions raised today were based on gross lies. There were cameras in the room today (webcasting the meeting), so what media manipulation would the dialogue be subject to?
CLAUDIO GROSSMAN, Committee Chairperson, replied that that was how the Committee worked: questions were asked and the delegation would receive ample opportunity to respond tomorrow. It was a public meeting and by definition anybody could take any notes if they wanted. The Committee spoke via its concluding observations, but people were free to make their own opinions and judgements. The Chairperson thanked the high-level delegation for attending and looked forward to the continuation of the dialogue.
For use of the information media; not an official record