OPINION No. 16/2003 (CUBA)
Communication addressed to the Government on 19 July 2002.
Concerning: Léster Téllez Castro, Carlos Brizuela Yera, Carlos
Alberto Domínguez y Bernardo Arévalo Padrón.
The State is not a party to the International Covenant on Civil and Political
Rights
1. (Same text as paragraph 1 of opinion No. 15/2002.)
2. The Working Group conveys its appreciation to the Government for having provided
the requested information in good time.
3. (Same text as paragraph 3 of opinion No. 15/2002.)
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, which made comments thereon. The Working Group is now in 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.
5. The following cases were referred to the Working Group on arbitrary detention:
(a) Léster Téllez Castro, a journalist and editor with the Avileña
Free Press agency, was arrested on 4 March 2002 on a visit to Ciego de Ávila
to see Mr. Jesús Álavarez Castillo, a correspondent from the CubaPress
agency. Force was used in the arrest, and the law enforcement officers did not
produce an arrest warrant. On 19 April he was moved to Canaleta prison, in Ciego
de Ávila. No charges have been brought against him. Nevertheless he has
been unofficially informed that he would be accused of “disturbing the
peace in a medical institution”, of “refusal to obey” and
“disparagement”;
(b) Carlos Brizuela Yera, a journalist, and member of the Camagüey College
of Independent Journalists, was arrested in the same way and in the same circumstances
as Mr. Téllez Castro. On 11 March 2002 he was moved to a detention centre
in the province of Holguín. No charges have been brought against him
either, although he has been informed unofficially that he will be accused of
the same offences;
(c) Carlos Alberto Domínguez, a journalist, and employee of the Cuba
Verdad agency, director of the Law Institute, and member of the 30 November
Democratic Party, was arrested on 23 February 2002 in the city of Havana by
four State security agents. On 29 March 2002 he was moved to Valle Grande prison
in Havana. He is accused of having participated in the organization of political
demonstrations that were to be held on 24 February 2002 to commemorate the death
of four pilots from Brothers to the Rescue, based in Miami, Florida. Officially
charges have been brought against him for the offences of “disturbing
the peace” and “refusal to obey”. It is alleged that he is
prevented from meeting with his lawyer and that the length of visits by family
members has recently been reduced. It is also
claimed that his health has undergone considerable deterioration;
(d) Bernardo Arévalo Padrón, a journalist and founder of the Línea
Sur press agency, was arrested in 1997 and sentenced to six years’ imprisonment
in November of that year for disparagement of the President and Vice-President
of the Councils of State and Government. In October 2002 he earned the right
to apply for conditional release by virtue of having served half his sentence.
Nevertheless, his application was rejected.
6. The source considers that these persons were arrested and are in detention
essentially for political reasons; mainly for having engaged in the peaceful
exercise of their right to freedom of expression, recognized by the Constitution
of the Republic of Cuba, and for having stated their ideological differences.
7. The Government, in its reply, maintains that:
(a) Mr. Téllez Castro went to the hospital where Mr. Álvarez Castillo,
together with other people, was being examined, and caused a serious disturbance
of the peace which paralysed the public services of the hospital for over an
hour. The people awaiting treatment in the hospital reacted immediately to the
offensive actions of Mr. Téllez Castro and his companions, defending
their legitimate right to access to the medical services they required with
varying degrees of urgency. In view of the breach of the peace and public nuisance
caused by the actions of Mr. Téllez and his companions, it was necessary
for police officers to intervene to
re-establish medical services and prevent physical attacks. Léster Téllez
Castro is an antisocial element, impulsive, disrespectful, provocative in his
attitude towards the authorities. He has been involved in several attempts to
leave the country illegally, and in 1992 was jailed for theft; he was tried
for robbery with violence in 1993 and, also in 1993, for theft;
(b) Carlos Brizuela Yera served four years in prison from 1994 to 1998 for an
attempt on the life of a police officer. Léster Téllez Castro
and Carlos Brizuela Yera are in pre-trial detention for aggravated disorderly
conduct, resistance and contempt. These offences are duly defined in the Cuban
Criminal Code and the trial will be conducted with full guarantees of due process,
in accordance with the rule of law;
(c) Carlos Alberto Domínguez embarked on migration formalities in 1994
in order to travel to the United States of America for family reunification.
His application was rejected by the Interests Section of the United States of
America in Havana. Mr. Domínguez was responsible for various acts that
constitute offences under the criminal law in force. On 23 February 2002, in
view of his premeditated recidivism, he was arrested. He is being held in the
Valle Grande prison in the city of Havana. Mr. Domínguez is not a journalist;
he holds a licence to work as a self-employed watchmaker. There is no Cuba-Verdad
press agency in Cuba. His arrest has no connection with the free exercise of
religion or opinion and expression. Mr. Domínguez acted with the clear
and premeditated objective of causing public disorder and preventing the proper
conduct of activities in the public interest;
(d) Mr. Arévalo Padrón is serving a sentence of six years’
imprisonment for contempt, as provided for and punished under current criminal
legislation. In each phase of the criminal proceedings, Mr. Arévalo Padrón
enjoyed all necessary guarantees of due process. Mr. Arévalo Padrón
is not a journalist, and is not the director of a press agency. Mr. Arévalo
Padrón has organized and participated in actions clearly aimed at subverting
the constitutional order freely decided on by the Cuban people in exercise of
its sovereignty, and his acts, in addition to constituting clear violations
of legality, have posed a manifest threat to the life and safety of other citizens.
With other citizens, he attempted to found a covert cell to carry out terrorist
activities in Cuba, promoted and funded by the so-called Independent Democratic
Cuba terrorist organization, based in the United States of America. He was placed
under a minimum-security regime, as a preliminary step to conditional release.
However, taking advantage of the placement in an open centre, he repeatedly
violated the disciplinary regulations, so that as a result that privilege was
revoked in June 2002.
8. With respect to these cases the source has replied that Léster Téllez
Castro had been engaged in journalism and the defence of human rights for the
past two-and-a-half years. The source acknowledges that he then left prison,
after being convicted to six years’ imprisonment for robbery with violence,
but maintains that at that time he was a vulnerable adolescent, under bad influences,
and that, according to family and friends, he has led an exemplary life since
finishing his sentence. The source adds that the Cuban authorities harp on this
background to discredit his activities and justify his current imprisonment
to the international community. The source has admitted that Carlos Brizuela
Yera, like his friend Téllez, has a criminal record. Reportedly he was
arrested for displaying a poster reading “Down with Fidel” in a
street demonstration, whereas the Government accused him, in the judgement handing
down the sentence that he served from 1994 to 1998, of an attempt on the life
of a police officer. The source asserts that on that occasion both were arrested
with many other activists in a demonstration when they went to visit Mr. Álvarez
Castillo, hospitalized after being assaulted by police officers.
9. On Carlos Alberto Domínguez, the source maintains that his political
militancy has also earned him several detentions and a prohibition on leaving
the country, even though he has held, as have his wife and three children, a
United States visa since June 2000.
10. As for Bernardo Arévalo Padrón, the source asserts that he
was sentenced to six years’ imprisonment largely for having called the
Cuban authorities liars for not respecting the final declaration of an Ibero-American
summit.
11. The Working Group, on the basis of the observations of both the Government
and source, considers that in the cases of Léster Téllez Castro
and Carlos Brizuela Yera, both Government and source agree that their detention
followed a demonstration opposite a hospital, and that others were also arrested.
The Government, other than stating that hospital services were disrupted for
an hour owing to the demonstration, does not convincingly refute the fact that
this
was a peaceful demonstration to protest a beating by the police. The exercise
of the rights of opinion and demonstration is protected by the Universal Declaration
of Human Rights. As for the criminal records of these two individuals, noted
by the Government and acknowledged by the source, the Working Group considers
that the submission before the Group relates to the current situation of the
detention of these persons and not their prior judicial situation.
12. In the case of Carlos Alberto Domínguez, there is no denial of the
fact that he was arrested after having organized political demonstrations, in
which no use of violence is alleged. The Government did not specify the charges
relating to public disorder or the interruption of activities in the public
interest, and in any event it is apparent that the demonstrations were organized
to commemorate certain events and to express a political opinion that differs
from that of the Government, a right protected by the Universal Declaration
of Human Rights.
13. Bernardo Arévalo Padrón was arrested on charges of contempt
for having publically criticized the country’s highest authorities. The
Government alleges that by his activities he threatened the life and safety
of citizens, and funded an organization for the perpetration of terrorist acts.
Nevertheless, it does not indicate how those acts have been carried out, and
does not refute the fact that public criticism of the authorities led to six
years’ imprisonment for him. The Working Group maintains with regard to
exercise of freedom of expression that it does not admit of greater restrictions,
and that in any event any restrictions must meet the requirements of legality
and legitimacy, and be necessary to a democratic society. Such restrictions
would apply to use of violence, incitement to racial or religious hatred, or
to commit crimes. In this case such circumstances do not apply, either with
regard to Mr. Arévalo’s activities or his public criticisms of
the authorities. Accordingly the Working Group considers that he has been detained
merely for having peacefully exercised the right to freedom of opinion.
14. In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Léster Téllez Castro, Carlos Brizuela
Yera,
Carlos Alberto Domínguez and Bernardo Arévalo Padrón is
arbitrary, being contravention of articles 9, 10, 19, 20 and 21 of the Universal
Declaration of Human
Rights, and falls within category II of the categories applicable to the consideration
of cases submitted to the Working Group.
15. The Working Group, having rendered this opinion, requests the Government
of Cuba to take the necessary steps to remedy the situation of these four persons,
to bring it into conformity with the standards and principles set forth in the
Universal Declaration of Human Rights, and to take appropriate steps with a
view to becoming a State party to the International Covenant on Civil and Political
Rights.
Adopted on 5 September 2003
E/CN.4/2004/3/Add.1