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| Working Group on Arbitrary Detention, Palais Des Nations, Geneva photo by gruntzooki |
A 12 page decision from the United Nations Working Group on Arbitrary Detention, dated November 23, 2012, and first released to the Cuban government on September 11, 2012 in a private communication and today the report has been made public. It calls for the release of Alan Gross and describes the legal process that he was subjected to in Cuba as not being "independent and impartial" and his imprisonment over the past three plus years as "arbitrary."
Background on Working Group
The United Nations Working Group on Arbitrary Detention was established by the former United Nations Commission on Human Rights in 1991 to investigate instances of alleged arbitrary deprivation of liberty. Its mandate was clarified and extended by the Commission to cover the issue of administrative custody of asylum-seekers and immigrants. In 2010, the Human Rights Council confirmed the scope of the Working Group's mandate and extended it for a further three-year period.
The Working Group is comprised of five independent expert members from various regions of the world. The Chair-Rapporteur is Mr. El Hadji Malick Sow (Senegal) and the Vice-Chair is Ms. Shaheen Sardar Ali (Pakistan). Other members include Mr. Mads Andenas (Norway), Mr. Roberto Garretón (Chile) and Mr. Vladimir Tochilovsky (Ukraine).
Excerpt from the 12 page report:
Text below taken from Capitol Hill Cubans
43. [I]t is within the Working Group’s competence to analyze if the person had the right to fair and impartial legal proceedings before an independent court. The detention would be arbitrary if the court had rejected exculpatory evidence or admitted illegal evidence.
44. In order to begin its analysis as to whether the present case is situated within the framework of Category III utilized by the Working Group, the Group had to first take note that neither the Government nor the source dispute that Mr. Gross was able to enjoy many of his procedural rights, such as presenting evidence; cross-examining the witnesses for the prosecution; presenting his own defense witnesses; having legal counsel of his choosing; having had a period of time to prepare his defense; having had interpreters; declaring freely; as well as the fact that the trial was public and attended by observers from his country, family members, and friends of the accused, among others.
45. In addition, the Working Group notes that there are no differences in some of the objective facts in the case. Both the source as well as the Government accept that Mr. Gross was in Cuba for the purpose of working on a project named “Para la Isla” [“For the Island”] of an agency of the Government of the United States of America; that he acted under a contract of the firm Development Alternatives, Inc. to carry out a project jointly with USAID; that the bringing in of equipment for facilitating wireless connections to the Internet was legal; that Mr. Gross made five trips to Cuba as a tourist, always using his United States passport; and that he maintained relationships with Jewish communities in Cuba; among others.
46. However, there are serious differences between the parties with regard to the following points: firstly, as to whether the courts that tried Mr. Gross in the first and second instances were or were not independent and impartial.
47. In order to resolve this issue with the greatest possible degree of impartiality, the Working Group recalls the following:
(a) In 2000, the Special Rapporteur on Violence against Women observed with concern that the National Assembly of People’s Power has the authority to appoint and dismiss the People’s Supreme Tribunal and the Attorney General and his/her substitutes; the Office of the Attorney General is subordinate to the National Assembly and to the Council of State; and the Attorney General is accountable for the performance of his/her duties to the National Assembly. Said constitutional provisions hinder the impartiality and independence of the judiciary (E/CN.2000/131, paragraph 67). The Government of Cuba, emphasizing that the people have chosen a socialist political system, rejected this assertion, which in its view was based on false information that had been fabricated by malicious sources or was based on fundamentalist ideological positions (E/CN.4/2000/131, p. 9).
(b) The Committee against Torture had recommended in 1997 that the rules for organizing the judicial system be adjusted so as to accord with international standards (A/53/44, paragraph 118).
(c) In 2007, the then-Special Rapporteur on the Independence of Judges and Lawyers reminded Cuba that, in accordance with international standards, military courts in principle should not have jurisdiction to try civilians (A/53/44, paragraph 118).
(d) The former Personal Representative of the High Commissioner for Human Rights recommended that Cuba adjust its criminal procedure to the provisions of Articles 10 and 11 of the Universal Declaration of Human Rights (A/HRC/4/12, paragraph 35; E/CN.4/2006/33, paragraph 35; E/CN.4/2005/33, paragraph 36); [sic] E/CN.4/2004/32, paragraph 35).
(e) According to the Special Rapporteur on the Right to Food, access to justice with regard to the right to food should be improved. The courts should have a mandate to examine human rights violations and an independent institution should be established and charged with processing complaints and providing reparations for infractions committed (A/HRC/7/5/Add.3, paragraph 79 (c)). In response to this communication, the Government of Cuba clarified that its inter-institutional system processes said complaints (A/HRC/8/4/Add.1, paragraphs 108-110).
48. The aforementioned antecedents, emanating from reports from the non-conventional mechanisms created by both the former Commission as well as the current Human Rights Council, were compiled by the Office of the High Commissioner for Human Rights for the Working Group in charge of the Universal Periodic Review of Cuba (see document A/HRC/WG.6/4/CUB/2 dated December 18, 2008, paragraph 20). Said reports were considered in due course by the organs which established said mechanisms with no reservations or objections whatsoever. Consequently, the Working Group cannot ignore same.
49. By virtue of said antecedents, the Working Group cannot rule out the fact that the courts of first and second instance that tried Mr. Gross did not exercise the judicial function in an independent or impartial fashion.
50. The Working Group must also consider if the national security law – and specifically its Article 91 – fulfills the requirements of precision and certainty that authorize the application of a sentence. Illicit conduct, in accordance with criminal doctrine, must be perfectly described prior to the commission of the illicit act, in harmony with the provisions of Article 11 of the Universal Declaration of Human Rights. But that description must be precise, such that the potential criminal knows the limits between what is and is not considered criminal activity. The classification of a crime must contain all of the necessary elements for this.
51. In the opinion of the Working Group, the description of the punishable offense in Article 91 of the Criminal Code of Cuba does not fulfill the requirements of precision required for the criminal to know exactly what conduct is prohibited. In effect, said article, inserted among acts against the independence or territorial integrity of the State, within the section related to crimes against State security, provides that “the one who, in the interests of a foreign State, executes an act with the purpose of harming the independence of the Cuban State or the integrity of its territory, shall incur in a sanction of imprisonment of 10 to 20 years or death.” The vagueness of concepts such as “executing an act”; “in the interests of a foreign State”; [and] “harming the independence of the Cuban State or the integrity of its territory” do not satisfy the requirement of a rigorous description of punishable conduct.
In conclusion, the Working Group considers that the courts of first and second instance that tried Mr. Gross did not exercise their function in an independent or impartial manner. Article 91 of the Criminal Code does not satisfy the requirement of rigorous description of punishable conduct, which lends an arbitrary nature to the detention.
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| Palais Des Nations, Geneva |
The complete report is available both in Spanish and English in pdf format at Bring Alan Home.
*Background and excerpted text in this blog taken from outside sources.
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