COMMITTEE ON ENFORCED DISAPPEARANCES CONSIDERS INITIAL REPORT OF CUBA

The Committee on Enforced Disappearances today concluded its consideration of the initial report of Cuba on its implementation of the provisions of the International Convention on the Protection of all Persons from Enforced Disappearance.

Pedro Luis Pedroso Cuesta, Deputy General Director of Multilateral Affairs and International Law at the Ministry of Foreign Relations, explained that enforced disappearances used to be a common practice in Cuba until the revolutionary process put an end to it in 1958. Currently, there were no cases of enforced disappearances or secret detentions on the Cuban territory. For that reason, Cuba was one of the major sponsors of the International Convention for the Protection of all Persons from Enforced Disappearance and one of the ten first countries to ratify it in 2009. Cuba’s legislative framework provided for a solid protection of human rights under the principle of respect of human dignity that was considered as an essential value by the Constitution. Habeas corpus proceedings existed in Cuba, allowing citizens to challenge the legality of detentions. Between 2010 and the first semester of 2016, Cuban courts had gone through 88 habeas corpus proceedings.

In the interactive dialogue which followed, Committee Experts inquired about the applicability of the Convention in Cuba and the harmonization of the Cuban legislative framework with the provisions of the Convention. The specific crime of enforced disappearances, including as a crime against humanity, was not codified in the laws of Cuba. The Experts asked for clarifications about the reforms that were being led on the criminal code in order to strengthen the mechanisms of protection of human rights. Specific questions were asked about the access to a lawyer, informing the detainee’s family of his detention, duration of detention and conditions under which a person could be detained.

In concluding remarks, Mr. Juan José Lopez Ortega, Committee Co-Rapporteur for Cuba, said that the Committee hoped that the very constructive dialogue would help Cuba to further improve his human rights situation and encouraged the authorities of the country to ratify all the existing international legal instruments in order to set as a model for other countries.

Mr. Pedroso Cuesta said, in his concluding remarks, that Cuba was fully engaged in the process of bringing in line its domestic legal framework with the provisions of the Convention. He stated that the Cuban authorities were aware that there was a need to codify the specific crime of enforced disappearances in the domestic law and ensured that efforts would be made to achieve this goal.

The delegation of Cuba included representatives of the Ministry of Justice, The Ministry of the Interior, the Ministry of the Revolutionary Army and the Permanent Mission of Cuba to the United Nations Office at Geneva.

The Committee will next meet in public today at 3 p.m. to consider the initial report of Senegal (CED/C/SEN/1).

Report

The initial report of Cuba can be read here: CED/C/CUB/1.


Presentation of the Report

PEDRO LUIS PEDROSO CUESTA, Deputy General Director of Multilateral Affairs and International Law at the Ministry of Foreign Relations, said that until 1958, enforced disappearances had been common in Cuba during the bloody Batista dictatorship. The Cuban Revolution had put an end to that State policy. Since 1959, the guarantee of the right of life, the respect of individuals physical and moral integrity and defence of the interests of citizen interests had been pillars of the revolution, despite nearly 60 years of aggressions, terrorist acts and the negative consequences the United States’ embargo had had on the commercial and financial sectors. In that context, Mr. Pedroso Cuesta stressed that there were no cases of enforced disappearances or secret detention to date on the Cuban territory. He recalled that Cuba had actively participated in the negotiations leading to the entry into force of the International Convention for the Protection of all Persons from Enforced Disappearance and was one of the first ten countries to have ratified it in 2009.

He noted that Cuba had taken the necessary measures to impede and sanction any acts that were prohibited by the Convention. The judicial measures that were put in place in order to protect the population from such crimes could not be subject to any exceptions in case of war or political unrest. The Cuban legislative framework provided for severe sanctions against any violation of human rights. Criminal responsibility for such crimes would be aggravated in case the victims were minors, or if the perpetrators were representatives of the public authorities. Mr. Pedroso Cuesta noted that habeas corpus proceedings existed in Cuba to appeal the legality of the detentions. Between 2010 and the first semester of 2016, Cuban courts had processed 88 habeas corpus cases. In four cases, the question of the immediate release of the detainee had been raised.

To date, there was no specific mention of the crime of enforced disappearance in the legal framework of Cuba. Mr. Pedroso Cuesta noted that such lack of mention was compensated by the regulation of other types of crimes which implied constitutive elements associated to the acts covered by the Convention. The prosecution authority was in charge of ensuring the respect of procedural guarantees for any accused individuals and victims of crimes against fundamental rights. Cuba had set up necessary judicial and practical safeguards to ensure that penitentiary institutions would provide decent treatment to inmates despite the material difficulties that the American embargo had brought, causing a USD 125,873 million damage to the country.

Systematically, the Supreme Court, the prosecution authorities and the specialized organs of the Ministry of the Interior delivered early release measures to sanctioned individuals depending on the nature of the criminal acts committed by the detainee and his health condition. Between 2010 and 2016, one third of the individuals facing sanctions had benefited from an early release. Furthermore, in September 2015, pardon had been given to 3,522 inmates, and 787 had benefited from the same treatment in November 2016. The Cuban legislative framework provided for a system of independent inspection of penitentiary facilities. Judges and prosecutors had a guaranteed access to those institutions. Through inspections of detention centers, the prosecutor had the competence to ensure that such institutions were conforming to the domestic and international legal provisions. Between 2012 and 2015, the prosecutor had realized 404, 300 inspections in penitentiary institutions and 80 percent of the violations detected had been solved since then.

Questions by Committee Experts

JUAN JOSÉ LÓPEZ ORTEGA, Committee Expert and Co-Rapporteur for Cuba, took note of the work carried by the Government in order to ensure that efficient safeguards existed to avoid enforced disappearances and that domestic legal framework was aligned with the provisions of the Convention. He asked the delegation to provide more details on the participatory method for the elaboration of the report under considerations. How exactly had the dialogue been led with civil society? Had all organizations been allowed to participate? Had associations specifically representing inmates, such as religious organizations with access to prisoners, been consulted? Had there been contacts with Amnesty International, Human Rights Watch or any similar organization of particular international recognition?

The Expert further inquired about the difficulties that the country might be facing in terms of recognition of the competence of international instruments in charge of the protection of human rights. Had Cuba taken into account other legal documents for the development of human rights under this Convention such as the the Optional Protocol to the Convention against Torture, or the Statute of the International Criminal Court (ICC), which was not recognized by Cuba to date? He suggested that Cuba should seriously consider ratifying it.

He then recalled the important role played by international human rights institutions and inquired about the possibility for the country to create its own national human rights institution.

Noting the importance of bringing domestic regulation in line with the Convention, the Expert asked the delegation to provide details on the reform of the Criminal Code and put the emphasis on the importance to guarantee effective investigation on crimes. He asked the delegation to provide details on the guarantees of independence of the bodies carrying investigations. The independence of judiciary work was a key for investigations efficiency, he said.

The Expert also outlined that, although the jurisdiction of the military in Cuba was wide, the use of military courts had to be excluded from dealing with the types of crimes covered by the Convention.

DANIEL FIGALLO RIVADENEYRA, Committee Expert and Co-Rapporteur for Cuba, recognized that progress had been made towards the implementation of a legal framework designed to specifically criminalize enforced disappearances. He asked the delegation to specify how the State would ensure that the rights and prohibitions covered by the Convention could be maintained in special contexts such as in a case of a state of emergency. There should be no possibility to suspend rights related to enforced disappearances. However, there could be some doubts since the Constitution of Cuba and the normative configuration of the country presented provisions that created a vacuum where those rights could be suspended.

He asked the delegation to clarify about the legal process in a case civil servants protected by immunity status and obliged to keep their activities secret were accused of enforced disappearances. What was the status of the legislation of Cuba in that area?

The Co-Rapporteur inquired about the legal and practical systems that existed in Cuba to ensure the protection of witnesses. The fact that Cuba did not have a specific witness protection system impeded people to report crimes to the authorities.

Finally, the Expert outlined the necessity for Cuba to specifically criminalize the crime of enforce disappearances, providing particular types of punishments.

Replies by the Delegation

Responding to the question on the way the report had been prepared, a delegate said that a large group of organizations took part in the process. A draft report had first been presented at a civil society forum organized by non-governmental organizations. The delegate outlined that no association specifically dedicated to individuals deprived of freedom had been associated to the process because such associations did not exist in Cuba. There were also no specific associations related to the Convention per se in Cuba because the issue had not been an issue of concern until very recently.

The delegation said that both the national legislation and the institutional system were fully involved in responding to the complaints and petitions of citizens. All Ministers had offices dedicated to the communication with citizens and so did regional assemblies. Since 2015, an interactive web portal had been created allowing citizens to interact with different offices and to present complaints. Anybody in prison or detention could bring complaints to those institutions. The delegation explained that that partly explained why it was not considered necessary to enshrine enforced disappearances as a specific crime in the Cuban legislative framework.

With regard to the consideration of international instruments by Cuba, the delegation recalled that the country was already party of 44 international instruments and was still examining the possibility to ratify others. The fact that all international instruments were not ratified by Cuba did not mean that human fundamental rights were not enjoyed in the country in terms of national legislation and application. The authorities and legislators in Cuba continued to lead an ongoing review of all existing national instruments to protect human rights in the light of the recommendations provided by international institutions.

The delegation took note of the recommendation given by the Committee to establish a national human rights institute, but stated that figures demonstrated that citizens already trusted the existing system for resolving cases.

A delegate said that Cuba was working to harmonize its legislation with the Convention, and noted that there was a need to update the Criminal Code in order to achieve that goal. Since 2012, a group of specialists from different spheres were collaborating in order to incorporate all the elements contained in the Convention, including the specific crime of enforced disappearances. Until now, the criminal proceedings in the country had not explicitly referred to enforced disappearances. Regardless of that, the delegation noted that a wide range of domestic legal instruments in place offered protection from all the elements produced by the crime of enforced disappearance and its ramifications. Any criminal activities were already criminalized in Cuban law and ensured that people were protected from that type of crimes.

Another delegate emphasized the importance of taking into account the specific history of Cuba, which had undertaken a revolutionary process leading to a popular legal system working in the name of the citizens. According to that system, judges were elected by the National Assembly, while regional judges were elected by regional assemblies.

With regard to the impartiality and independence of judges, the delegation recalled that those principles were enshrined in the domestic laws which provided a strong system of checks and balances, and asserted that any judge who did not abide by the rules would be excused. Any investigation including issues relating to enforced disappearances came under the auspices of the police and the civilian criminal procedure code that firmly established the right for individuals to get independent trials.

Out of the four cases of habeas corpus on which an Expert asked for precisions, the delegation explained that three concerned detainees who had escaped from prison 1990-1991 and who had been re-arrested in 2003. A judge had ordered their release due to the crime prescription. The fourth case referred to a detainee who had developed a mental sickness during his detention and who should have been transferred to a psychiatric institution. The delegation noted that the time of prescription began when the crime was committed.

Regarding the role of military courts, the delegation explained that article 11 of the Criminal Code allowed the military authorities to pass the case on to civilian courts and authorities.

Concerning the responsibility of civil servants and public authorities in crimes related to enforced disappearances, the delegation outlined that even if individuals were not responsible if they acted under the orders given by a superior, there was a strong obligation for individuals to present legal complaints to authorities. No claim could be made to immunity in that regard. Nobody could invoke immunity with the pretext of having acted under subordination. All subordinate individuals were obliged to abide by the law, be they accomplices or perpetrators of a crime.

Responding to the question on the protection of witnesses, the delegation said that the Criminal Code provided that when somebody had been arrested, witnesses and their families received automatic legal protection. The previous year, 125 individuals had approached the prosecutor office to ask for information related to their rights.

With regard to the protection of the rights related to enforced disappearances in times of a state of emergency, a delegate said that Cuba could not suspend, in any case, the procedures preventing enforced disappearances. He recalled that the state of emergency was mainly designed to respond to environmental emergencies and provide state help to citizens in Cuba.

Follow-up Questions by Committee Experts

JUAN JOSÉ LÓPEZ ORTEGA, Committee Expert and Co-Rapporteur for Cuba,
inquired about the stage reached in the reforms of the Criminal Code that had commenced in 2011 and asked how long it would take for them to be applicable.

Regarding the independence of the judiciary, he noted that rulings could take place either at the level of state council or as part of the government council. In certain cases, individuals from outside could be invited to participate in the rulings providing a system of popular justice. The previous year, he noted, there had been a trial where individuals were appointed as lay judges. A particular role was given to the organization for Cuban workers.

He also noted that although article 7 of the Convention provided for the need of sanctions for perpetrators of crimes, judges should avoid to apply the death penalty, which was still recognized in Cuba.

A Committee Expert underlined that the Convention had been in place since ten years and that it was important that all States parties, including Cuba, have the same definition of enforced disappearance because of the specific nature of that crime.

Another Expert asked whether the Cuban judiciary could prosecute the case of a crime related to enforced disappearances perpetrated in a foreign country.

Replies by the Delegation

On the subject of the death penalty, a delegate responded that since 2003, no individuals had been subject to that sanction. It was an issue that was being reviewed right now.

With regard to the question of extradition, a delegate said that if somebody had been a victim of enforced disappearance in a foreign country, that crime could be tried under the Cuban law and brought to court in Cuba.

Concerning the independence of justice, the delegation said that Cuba’s judiciary was also the result of a revolutionary process. Thus, even if structural changes were possible in Cuba, the country would maintain the principles inherited from its own history. The delegation recalled that the governing council did not have a legislative role, so there could be no interference in the legislative framework. Members of the governing council only provided clarification points in order to help the courts in their interpretative role.

The delegation asserted that since 2012, Cuba had been working on an ongoing basis in order to bring the domestic law in line with international instruments.

Questions by Committee Experts

DANIEL FIGALLO RIVADENEYRA, Committee Expert and Co-Rapporteur for Cuba, noted that the legislative framework of Cuba did not provide an explicit guarantee of the principle of non-refoulement for persons subject to extradition and detention.

Which body was entrusted with assessing the existence of a risky situation related to that matter? How would such a situation be evaluated, and would it follow an administrative or a judicial procedure?

He also asked the delegation to clarify reasons for which a person could be detained, be it under the order of the prosecutor’s office, the Direction of criminal investigation or the national revolutionary police.

With regard to the police detention regime, Mr. Figallo Rivadeneyra noted that the response given by Cuba on the duration of detention was unclear. He noted that, although the law provided that a person could not be detained more than 24 hours without being presented to a judge, the police were entitled to undertake cautionary measures up to 72 hours.

Finally, he inquired about the type of training the police and public authorities received in the area of human rights.

JUAN JOSÉ LÓPEZ ORTEGA, Committee Expert and Co-Rapporteur for Cuba, asked the delegation to provide more information on which body was competent to prescribe temporary imprisonment. Was the prosecutor’s office the appropriate, independent body to provide temporary imprisonment, and were the police the best unit to provide for the rest of cautionary measures?

He asked the delegation to deliver precisions on the right for arrested persons and detainees to have access to a lawyer. Could an individual speak to his lawyer from the very beginning of his detention and until cautionary measures were adopted?

The Co-Rapporteur took note that the police in Cuba was obliged to inform the family members of a detainee on the time of his arrest and his place of custody. But what was the maximum time lapse before the family could be informed on the place and time of arrest? How were the Cuban authorities keeping families informed on their relatives in prison or detention centers, and how were families informed when individuals were transferred from one place to another? Could that information be delayed for security purpose? What was the status and how were managed the registers for detention centers? Did registers also exist for places where people were deprived of freedom other than prisons such as psychiatric centers?

The Cuban law did not match exactly with the provisions of the article 25 of the Convention, which was very demanding concerning the protection of children victims of enforced disappearances. Were there initiatives to integrate the criminal conduct sanctioned by article 25 in the domestic law? The reform of the Criminal Code could be a good opportunity to adapt domestic law to those provisions.

Replies by the Delegation

With regard to the issue of the guarantee of non-refoulement, a delegate answered that the Criminal Code, in its article 6, enshrined that extradition of foreigners could not be carried out in the case there was a risk that they could be prosecuted in their countries for their political opinions. The country of origin of the individual and his situation when he left were all taken into account before delivering the decision to expulse, extradite or transfer him. Furthermore, the approval of the detainee was mandatory in cases of transfers to other countries, which was not the case for expulsions and extraditions. A person threatened to be sanctioned with the death penalty could not be extradited unless the requesting state could guarantee that he would not be executed.

Following the prescriptions contained in various international conventions Cuba had ratified, a person entering the Cuban territory could not be sent back to his country in the 20 days after his entrance.

Individuals could challenge decisions of extradition, expulsion and transfer before municipal courts. Cassation processes could also be brought before the High Court. Since 2013, eight extraditions has been carried out in Cuba. In 2017 so far, two expulsions had been ordered.

A delegate stressed that Cuba strictly complied with the principle of non-refoulement. He said that the fact that the explicit consent of a person was mandatory to allow his transfer was very important because it was another safeguard against the risk of enforced disappearance. If an individual’s life was at risk once back in his country, a transfer would not be executed either. He outlined that Cuba was collaborating closely with the United Nations Refugee Agency to ensure individuals could have access to the status of refugee.

With regard to the existing training programmes on human rights, a delegate stressed that judges, prosecutors and medical personnel in Cuba had all gone through mandatory courses on human rights issues and international human rights instruments.

Concerning the issue of temporary detention, a delegate said that no individual could be detained over 24 hours. The police could decide, in a case of a heinous crime, to keep the individual in detention until 72 hours. After that time lapsed, a prosecutor had to be seized. The delegate outlined that the priority was given to the processing of the cases of temporary detention. He stressed that of the total number of detentions in the country, only 12 percent were cases of temporary detention. Temporary detainees could have access to an attorney 24 hours after they had been arrested.

Concerning the information provided to detainees’ families, the delegation explained that the authorities had a strict obligation to inform family members at every stage of the detention. The reason of the arrest, its time, duration and place were all contained in a document filled by the police and delivered to families, and then kept in a register.

On the issue of the reparations for victims of enforced disappearance, a delegate stressed that such case had never happened in Cuba. A declaration of missing persons could be presented to judicial authorities, and the family members could then represent the missing person in legal proceedings. On the basis of that status, family members of a victim could have access to welfare remunerations and economic assistance, three years after the declaration had been made. That time lapse was shortened to one year in the case of enforced disappearance during military training and to six months for environmental catastrophes. In the case of children whose parents had gone missing, they had to remain with their closest family members before adoption measures could be envisaged. The delegate stressed that it was not possible in Cuba to have a scenario where detained minors were kept in the same services as adults.

A delegate then made a reference to DNA samplings on inmates and certified that that practice was in line with all international standards in the area. Witness presence was mandatory during the tests. He stressed that samplings that were sent to foreign countries were through robustly secured systems.

Asked about the existing specific provisions for women, the delegation said that Cuba was the first country to sign the Convention on the Elimination of All Forms of Discrimination against Women and had fully embraced the provisions of the Beijing Platform for the protection of women. Cuba had set up an integrated approach across the country, with more than 10,000 people working in the area of women protection. Almost 50 percent of members in the Assembly were women.

Concluding Remarks

JUAN JOSÉ LÓPEZ ORTEGA, Committee Expert and Co-Rapporteur for Cuba, warmly thanked the delegation for its participation in the very prolific dialogue. He outlined that the Convention on the Protection of all Persons from Enforced Disappearance was one of the most recent ones in the area of human rights which made it very wide ranging. Not only did it oblige States parties to criminalize enforced disappearances, but it also set preventive and reparative measures. He thanked the delegation for the fruitful dialogue and expressed hope that the Cuban authorities would continue their efforts to improve their domestic legislative framework and bring it into line with the provisions of the Convention. Because Cuba was an advanced country in its respect of human rights, it had to set an example for the countries that did not benefit from the same safeguards. He finally highlighted the importance of incorporating all the international instruments into the domestic law, from the International Criminal Court, to the Optional Protocol and the Convention against Torture.


PEDRO LUIS PEDROSO CUESTA, Deputy General Director of Multilateral Affairs and International Law at the Ministry of Foreign Relations, emphasized that Cuba was far advanced in its ratification of international instruments. Although there was still a degree of concern about the International Criminal Court, that did not impede Cuba to provide for a robust legal framework in the area of human rights. He acknowledged that there was still much to do in order to improve that citizens’ fundamental rights were respected, and said the delegation was aware that there was a need to provide for a specific criminalization of enforced disappearances.




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CED17/003E