23 May 2012
The Committee against Torture this afternoon heard the responses of Cuba to questions raised by Committee Experts on the second periodic report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Responding to questions raised by Committee members on Tuesday, 22 May and today, the delegation of Cuba, which was led by Rafael Pino Becquer, Deputy Attorney General of Cuba, said there was no express definition of the crime of torture in Cuban legislation, but the Government contemplated including one in the future. The delegation spoke about capital punishment, the legal concept of declaring an individual ‘socially dangerous’, pre-trial detention and the use of habeas corpus, and complaints of mistreatment in penitentiary or detention centres. Prison conditions and guarantees, the prison population, deaths in custody, and measures to improve the infrastructure of detention centres were discussed in-depth, while information about military trials, Cuba’s relationship with the International Committee of the Red Cross, the case of patients who died in Havana Psychiatric Hospital, and the situation of United States citizen Alan Gross, currently serving a prison sentence in Cuba, were also considered.
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 United Nations Office at Geneva.
The Committee’s concluding observations and recommendations on the report of Cuba will be issued towards the end of the Committee’s session which concludes on 1 June.
The Committee’s next public meeting will be at 10 a.m. on Thursday, 24 May when it will discuss follow-up to articles 19 and 22 of the Convention.
Response by the Cuban Delegation
There was no express definition of the crime of torture in Cuban legislation, but the Government contemplated including one in the future. For today over 10 categories of crimes provided adequate protection from torture. A delegate clarified that the People’s Supreme Court was the maximum judicial authority. Judges reflected in their attitudes the values of persons of Cuba, and being a judge was seen as a public service. There was a formal system of acknowledging international treaties which involved an internal incorporation process and study of an international treaty prior to its ratification.
In explanation of the concept of a person being declared ‘socially dangerous’, a delegate said the Criminal Code referred to ‘the dangerous state of an individual’ which was a status determined by independent judges under due process rules in accordance with sufficient evidence for the accusation. Persons declared ‘socially dangerous’ were not sanctioned, rather they were influenced by education programmes and thus re-educated. In absolutely no case was ‘socially dangerous’ status applied for any other reason than those in the Criminal Code and certainly not because of the political beliefs of individuals.
The Criminal Code established capital punishment as an exceptional penalty for very serious cases such as national security. Cuba had been victim to many external aggressions, including terrorism and crime aimed to cause the deaths of citizens. As a result over 2,300 civilians had died while thousands were injured and mutilated, including foreign citizens. There may be a time in the future when the necessary conditions for abolition would exist. There had been no execution since 2003 nor had anybody been condemned to capital punishment. Those sentenced to capital punishment in 2003 were guaranteed due legal process, and it was not true that the trial was held in secret – it was public and the defendants had legal assistance from very well known lawyers.
There were no judicial police in Cuba and the intelligence services did not detain people. The police could not detain a person for longer than 24 hours without informing either the Public Prosecutor or the person in charge of the investigation, who could decide on a legal precautionary measure which allowed for provisional prison, bail or to hold somebody in their home. The obligation was put on the record. All detentions were recorded and registered, detainees were given contact with family members, and habeas corpus was established. There were no administrative or secret detention centres. Detention centres only existed in police stations, located in each municipality. The police trained its agents to respect every person’s physical and moral integrity.
Between 2007 and 2011 the Attorney General’s Office dealt with 263 reports of mistreatment in penitentiary or detention centres, which when investigated led to 46 law enforcement agents being held criminally liable. Those 46 law enforcement agents were convicted for crimes under Cuba’s criminal laws, and received prison sentences between one and eight years. All of the 46 agents were entitled to legal assistance and to appeal their sentence to a higher court. The victims received their compensation as established by the court. Legal cases may be heard in military tribunals if the accused was a member of the armed forces, even if the victim was a civilian, and also if a crime had been committed in a military area, regardless of whether the persons involved were members of the armed forces or civilians. Military tribunals could decline involvement and hand the case to an ordinary tribunal, which often happened.
Any person who suffered damage or prejudice caused by State officials acting within their official function could claim reparation and compensation by law. The person who was criminally liable was also liable under civil law to pay damages caused by the crime. If the accused refused to pay reparations the court could allow for an additional prison term not longer than six months. Legal action to claim civil liability as the result of a crime was carried out at the same time as action to claim criminal liability. Compensation included reparation for both material and moral damage. Furthermore a worker accused of a crime committed during his working hours was entitled to receive an average salary while in detention, once it was established he was not guilty.
Any accused person was assumed to be innocent until convicted. Any crime must be independently proven, without regard to the testimony of the accused, family or relatives. An accused person was entitled to remain silent. In Cuba there was no case where torture had been invoked as a procedure and there was no case of evidence against an accused or detained person being obtained as a result of violence against them. No judicial proceedings had had to been annulled because it had been found there had been an act of torture or mistreatment.
Prison monitoring was carried out by the Office of the Attorney General. Legal organizations were able to systematically visit prisons in association with the Office, and during those visits to freely talk with inmates. Cuba had a good cooperation with the International Committee of the Red Cross within the framework that governed its mandate and activity, and had had fruitful results from their stable relationship. Cuba was bound by no international instrument to give the International Committee of the Red Cross access, but when there was a need could invite it to make visits.
Regarding conditions in penitentiary and detention centres, a delegate said that there were difficulties regarding the physical construction of institutions, which affected living conditions in them. An investment plan was in place with a budget to renew infrastructure which would run until 2017, and already some institutions had been replaced by new constructions which had better conditions and allowed an ‘open regime’ for inmates. There were cases of individuals who were serving their sentences in places distinct from their place of residence, they were not governed by the Cuban prison system as they were one-off situations that were temporary and due to avoid prison overcrowding.
Cuba had a progressive approach to detention which aimed to promote positive behaviour among inmates by gradually reducing the severity of the prison and as a basis for granting parole. The approach included measures such as a reduction of sentences by two months per year for good behaviour, the transfer of detainees to less severe regimes and an additional reduction to sentences of 60 days for outstanding results in educational programmes or extremely good behaviour. Eighty-two per cent of inmates discharged from detention centres did so without having served their full sentence. In conformity with United Nations rules on treating prisoners, disciplinary cells were only used in exceptional cases of serious breaches of discipline. Disciplinary cells had natural light and ventilation, private sanitary installations and established dimensions. All had drinking water and were healthy, hygienic and clean. In line with United Nations rules on the treatment of prisoners, all persons deprived of freedom received adequate daily food with a sufficient nutritious value not less than 2,400 calories, and when sick received an appropriate medically-controlled diet. It was well known that nobody in Cuba paid for medical services. Under the Constitution, medical services were free of charge for everybody, including those in prison or engaged in judicial proceedings. The National Prison System had hospitals and care centres as well as smaller medical centres and integrated medical teams made up of specialized doctors that systematically visited prisons. Inmates were guaranteed contact with the outside world, in conformity with the United Nations rules, through visits with family members, conjugal visits and the ability to send letters and make other communications, and trips out and permits to visit their home for a limited time. Disciplinary measures which would affect those rights could not be imposed.
There was no prison overcrowding in Cuba, where the number of detainees was below capacity. The overall prison population was 57,337, of which 31,494 were detained in a closed regime and 25,843 in an open regime. The overall aim of the system was to move to an open regime. Educational and community programmes aimed to educate prisoners, teach literacy, develop sport and culture, teach parenting skills and more. Currently 27,095 inmates were involved in study at different levels of education, while 23,113 worked in prisons, and their work counted towards their pension. No deaths occurred in prisons as a result of negligence or the actions of law enforcement officers; deaths generally happened as a result of illness, fights or accidents. All deaths in custody were investigated. In 2010, 44 prisoners died in detention and 69 died while detained in hospitals, and in 2011, 29 prisoners died in prison and 60 died in hospitals.
A delegate raised the case of Mr. Alan Gross and said he was a United States citizen arrested and convicted in Cuba and imprisoned after legal proceedings with all legal guarantees. Mr. Gross’s crime was to violate Cuban laws while he was working on contract for the United States Government implementing a policy that was openly directed against the constitutional order of Cuba. His activities were not only crimes in Cuba but also in other countries including the United States. Mr. Gross was currently in a good physical condition, was receiving specialised medical treatment, a nutritious and stable diet that he himself proposed, had regular access to the consular authorities of his country, and received visits from his wife, family, friends and political and religious persons. The Cuban Government had proposed a dialogue to the United States in order to seek a solution to his case. The Cuban Government was awaiting a reply.
Several questions had been asked about asylum, refugee status, exile, internal and external migration, access to consular services and the specific case of repatriation of Haitian persons. All persons who moved to live outside of Cuba did so of their own free will. All Cuban citizens were entitled to State consular services outside of the country and were provided with a passport on request and legal assistance. There was no interior or exterior exile in Cuba; nobody was forced to live in any part of the national territory. There was no limitation to any person moving anywhere in the territory. There were no internally displaced persons in Cuba. It was true that migratory norms were under review. The Haitian migrants who came to Cuba on occasion did so as a result of accidents or problems in their attempt to emigrate by sea to the United States. Their return to Haiti was governed by a tripartite agreement between the Governments of Haiti and Cuba and the International Organization of Migration. Every repatriation respected the will of the migrants and received the support of the International Committee of the Red Cross. There were no examples of persons who had carried out torture in another country and lived in Cuba. Cuban citizens could not be extradited: they would be prosecuted by Cuban tribunals. No foreign citizen was extradited if they faced a danger of torture or cruel or degrading treatment on removal.
In reference to the regrettable deaths in Psychiatric Hospital of Havana (January 2010), detailed information into the investigation and legal proceedings held as a result of the incident was available in the written replies to the Committee. The Government was committed to ensuring there was no impunity in acts of negligence by the authorities and the Ministry of Health was carrying out a reform plan which involved significant capital investment. What occurred at that hospital was a very exceptional incident. Cuba was very proud of its history of caring for psychiatric patients, both domestically and in many countries abroad, and reacted to that incident severely and seriously.
Against the will of the Cuban people the United States had established an international torture centre at Guantanamo Bay, a delegate said. The United States authorities had a very strong interest in creating and maintaining a negative image of Cuba and along with accomplices in other Governments were following their historic goal of trying to annex Cuba. The negative image was perpetuated by many anti-Cuban groups in Miami that had a long history of terrorism, significant media trans-nationals, and unfortunately some organizations that called themselves non-governmental organizations but in fact were financed by Western Governments. The United States had an annual public budget of $20 million to carry out that policy, in addition to other funds channelled by services such as the CIA and private groups.
Cuba had no link with the Inter-American Commission for Human Rights, which the Committee had referred to as its main source of information. The delegation requested a clarification, as it could not accept any judgement from the Inter-American Commission for Human Rights. Each and every complaint brought to the Committee on supposed torture or mistreatment was false. A delegate said reports of an increase in short-term detentions was another false allegation stemming from the United States and the mercenaries who worked for it. Cuba believed it had a national system for the promotion and protection of human rights which worked; it was not necessary to modify it to meet the Paris Principles. It was up to the Human Rights Committee to demand compliance. There were more than 2,400 non-governmental organizations in Cuba that covered a broad spectrum of interests, and included trade unions and professional, academic and religions organizations.
Follow-Up Questions from the Experts
FERNANDO MARINO MENENDEZ, Committee Expert serving as Rapporteur for the Report of Cuba, thanked the delegation for all of the additional information. Cuba was a young country that had not always had an easy history, and torture was a difficult topic. The Inter-American Commission for Human Rights was only one of the Committee’s sources, along with human rights non-governmental organizations, the Committee had no reason to disbelieve the Inter-American Commission for Human Rights which appeared to have unbiased interpretations. Many organizations referred to the phenomenon of short-term or temporary detention. There was no reference to ‘mistreatment’ in the Criminal Code, but the 46 detention officers were prosecuted for the crime of mistreatment, so what exactly did that mistreatment involve?
NORA SVEAASS, Committee Expert serving as Co-Rapporteur for the Report of Cuba, confirmed that any information on torture taking place in States parties to the Convention was always very clearly relayed. The Co-Rapporteur asked about the conditions of women in prison, an estimated 2,200 women were detained in Cuba. Were those women held separately to men, and were they attended by female prison guards? There were relatively more women in pre-detention then men: how could that be explained?
An Expert noted that there were exceptions to the use of habeas corpus procedure, which could not be applied during pre-trial hearings. Why was that? An Expert quoted from reports by non-governmental organizations such as Amnesty International which said the Cuban Government harassed and prosecuted persons for their political beliefs.
Response by the Delegation
Prior to the 1959 revolution torture did exist in Cuba, and victims of torture from the Batiste regime were compensated by courts. Habeas Corpus had been on Cuban legislation for a long time, and occurred when there had been a legal detention of a person. There was no Habeas Corpus if the decision was in line with the law and procedure had been followed. The prosecutor decided on provisional and preventative detention. Cuba was a country with the least number of prisoners awaiting conviction – only 12 per cent. Persons could be detained for not longer than 24 hours, but they were not ‘short-term detentions’, they were proper registered detentions for a citizen or a group that wanted to disrupt public order and the authority. All due legal guarantees were provided to them, and they were released afterwards. The delegate also confirmed that no detainee in Cuba was held in solitary confinement.
Women were held separately from men in women-only detention facilities, which were staffed by women. A programme related to specific care for women detainees, as well as other programmes for both women and vulnerable persons, which due to time constraints Cuba would provide details on at a later date.
A delegate confirmed that in 2009 Cuba invited the Special Rapporteur on Torture to visit. There was a good attitude but a problem with the agenda, Cuba had a lot on during that time both nationally and internationally. Cuba was currently following up a request from the Special Rapporteur in which he renewed his interest in making a visit. The Head of the Delegation said that Cuba had no faith in sources of information used by the Committee.
CLAUDIO GROSSMAN, Committee Chairperson, thanked the delegation for their information to a Convention that was voluntarily ratified and said it was unfortunate there were time limits to the dialogue.
For use of the information media; not an official record