RIGHT TO LIBERTY AND PERSONAL SECURITY
A. GENERAL OBSERVATIONS
1. The American Declaration upholds the right to a fair trial, liberty and personal security in the following articles:
Article I. Every human being has the right to life, liberty and of the security of his person.
Article IIV. No person may be deprived of his liberty except in the cases and according to the procedures established by pre-existing law.
No person may be deprived of liberty for non-fulfillment of obligations of a purely civil character.
Every individual who has been deprived of his liberty has the right to have the legality of his detention ascertained without delay by a court, and the right to be tried without undue delay or, otherwise, to be released. He also has the right to humane treatment during the time he is in custody.
2. The problem of arbitrary detention and imprisonment for political reasons, and of the harsh prison conditions imposed on detainees, has been one of the chief concerns of the IACHR with respect to Cuba. This explains why a large part of its previous reports concentrated on an analysis of the situation of political prisoners, and why two of these reports have addressed this matter exclusively.
3. Although, in general, the number of detentions has fallen and prison conditions have improved in comparison to the situation that prevailed during the period covered by those reports, serious problems persist with respect to personal liberty and security, which will be studied in this chapter. The first object of analysis will be the legal order governing personal liberty. Next, detention procedures will be presented; this is followed by a review of existing prison conditions for political prisoners; and lastly, some specific problems persist with respect to personal liberty and security, which will be studied in this chapter. The first object of analysis will be the legal order governing personal liberty. Next, detention procedures will be presented; this is followed by a review of existing prison conditions for political prisoners; and lastly, some specific problems are studied, such as that of “re-sentenced” political prisoners, post-imprisonment discrimination, and the situation of some political prisoners who were released as a result of the dialogue between the Government of Cuba and persons of the Cuban community in exile.
B. LEGAL STRUCTURE
4. Throughout the period under consideration, changes have been made in the Cuban legal system as it bears on personal liberty, although a large part of previous legislation remained in force in the early years of the revolution.
5. After the fall of President Batista, the Constitution of Cuba of 1940 remained in force for a very short period. It was almost immediately replaced by the Basic Law of February 7, 1959. In essence, this law granted the highest legislative powers to the Council of Ministers. On January 30, 1959, the Council amended articles 27, 29, 196 and 197 of the Constitution. Amendment of these articles suspended a number of guarantees of personal liberty for a period of 90 days, including the right to appear before a judge within 72 hours of detention and recourse to habeas corpus. In practice, the revolutionary courts were legalized. These changes were made permanent through an amendment to the Basic Law of November 2, 1959.
6. The Codigo de Defensa Social (Social Defense Code) of 1938 served as the basic document for treatment of “political crimes” (Article 161). Crimes against the security of the state were divided into those that threaten the integrity and stability of the nation (Articles 128-140); crimes that endanger peace (Articles 147-155). The concept of “state of danger” provided the Government legal justification to apply security measures prior to the potential commission of a crime, and subsequent to it, restrictions that included detention in work camps and other centers.
7. The first legislation of the revolution began in the period of the guerrilla war itself; thus, Regulation 1 of the Penal Code of February 1, 1958, stipulated that those who had been closely linked to the crimes committed by former President Batista—military or civilian—would be tried by the military tribunals of the Rebel Armed Forces. That principle was subsequently enshrined in the Basic Law of February 7, 1959.
8. Law 425 of July 7, 1959, set forth the definition of “counter-revolutionary crimes”, and specified those against the integrity and stability of the nation and those against the powers of the State, thus extending their application to sanction those who had been accomplices or who had provided financial support to counter-revolutionary activities. Dissemination of subversive propaganda was punishable by up to twenty years imprisonment. Further laws enacted in the period 1959 to 1963 dealt with confiscation of the property of “counter-revolutionary criminals”, and instituted the death penalty for acts of sabotage and terrorism, and imprisonment of conscientious objectors. Theft, fraud and embezzlement of public funds were defined as counter-revolutionary crimes.
9. The 1971 Law later provided that violators could be sentenced to up to two years of forced labor. In 1973, in the course of the reorganization of the judicial system, new procedural legislation was enacted, and the additional legislation of 1974 (Law 1262) amended Law 425, broadening the articles on illegal exit from the country and establishing severe penalties for acts of violence, airplane hijacking, and assassination. In addition, restrictions on freedom of expression were tightened, including punishment of oral and written propaganda against the socialist regime, as well as spreading of rumors and false information that tended to “cause alarm or discontent among the population”. Likewise, severe penalties were established for illegal entry into places outside of Cuban territory.
10. The relative stability achieved by the Cuban political process and the broadening of the legal formulas drafted by it, made it possible to promulgate the Constitution in 1976, which was soon followed by the above-mentioned entry into force of the Penal Code and the Code of Penal procedure. These two legal instruments set forth the rules that govern the exercise of the rights analyzed in the Chapter.
11. Article 57 of the Constitution refers to the right to a fair trial, to personal liberty and security under the following terms:
Freedom and inviolability of persons is assured to all who live in the national territory.
Nobody can be arrested except in the manner, with the guarantees and in the cases prescribed by law.
The person under arrest or in prison is inviolable in his personal integrity.
12. Other legal provisions elaborate on the Constitution in this matter. With respect to illegal detention and the inviolability of personal integrity, Article 241 and following, of the Law of Penal Procedure establish the necessary procedures. For its part, Article 245 provides that the police may not detain a person for more than twenty-four hours without advising the Instructor de Sumarios (an official who carries out judicial and police functions) and that the latter, within seventy-two hours, shall release the detainee or turn him over to the prosecuting attorney.
13. Within seventy-two hours of receipt of the report of the Instructor de la Policia (Police Investigator), the Prosecutor must nullify the detention, take a precautionary measure or decree provisional imprisonment of the detainee. Among the precautionary measures are the setting of bail or house arrest. In the following seventy-two hours, the Court that has jurisdiction over the case must confirm or nullify the measure adopted by the Prosecutor. It should be pointed out that in theory, the law allows for a detainee to remain in prison for a week without appearing before a judge or court competent to hear his case. In the opinion of the Commission, this is an excessively prolonged period.
14. Preventive detention is permitted in cases of conduct contrary to socialist principles, defined as “state of danger”, and including “practice of sanctionable social vices” and “anti-social conduct”. Pre-criminal security measures may, however, also therapeutic and rehabitational treatments, sanctions which may again lead to internment for forced psychiatric treatment or in labor camps.
15. The circulation of dangerous information is related to threats against “international peace” (Article 121 of the Penal Code). In addition, membership in unregistered organizations, meetings, and illegal demonstrations is punishable by three years of imprisonment, and perpetrators of these acts may be sentenced to up to 9 months imprisonment (Article 23 of the Penal Code). Finally, several crimes are punishable by the death penalty, not only in the case of the criminal acts against another person but also if they “cause serious injury, or homosexual acts using violence or the intimidation of minors (under 16 years of age)”
16. The system of detention that has been described in published testimony and in that available to the Commission make it possible to establish a pattern. Detentions are normally carried out individually; massive detentions took place in periods of extreme repression but this is not currently the rule. There were cases of massive detentions, e.g., following the Bay of Pigs invasions, when authorities were obliged to requisition the baseball stadium of Matanza, the Fort of la Havana, convents, public buildings and private residences in Santiago and Havana.
17. There have been numerous denunciations of detentions carried out with excessive forcefulness and threats, although, in general, without unlawful brutality, or ransacking and looting. The homes of several persons who testified before the Commission were searched and in some cases personal effects were confiscated.
18. According to the oral and written statements received by the Commission and written denunciations indicate that these persons have been interrogated by security forces, without the presence of an attorney, for prolonged periods of time or until they were ready to make a confession, and that at no time were they informed of their rights, neither at the time of detention or in the course of interrogation. This problem will be analyzed in greater detail in the following chapter.
2. Prison Conditions for Political Prisoners
20. The Commission on previous occasions has dealt with the situation of political prisoners in Cuba. In the six reports prepared to date, the Commission has pointed out the conditions to which political prisoners in Cuba are subjected in violation of the American Declaration; two of the reports addressed this matter exclusively, and one of them included the treatment of women who are political prisoners.
a. Definition of “political prisoner”
21. It is difficult to define with precision the actions that Cuban authorities have defined as “counter-revolutionary crimes”, since interpretations thereof have undergone significant changes in the first two decades of the Cuban revolution. In general, different kinds of prisoners are included: members of the Armed Forces and the Security Forces of the overthrown President Batista, who were tried in the early months of 1959 by special Revolutionary Tribunals, and who were given sentences that ranged from execution to prolonged detention; members of political organizations, such as the July 26 Movement, who participated in the armed struggle against Batista and who later actively opposed the approach of Fidel Castro to the Communist Party; leaders of uprisings, including those planned by exiles abroad; leaders of the old Communist Party and other veteran Marxixts who were often victims of purges as a result of their opposition to the Government in various political situations.
22. In addition, the category of political prisoners includes journalists, writers and artists imprisoned for acts considered to violate the freedom of expression; priests, clergymen and members of religious congregations, due to conflicts with the Catholic Church that began at the end of the first year of the revolution. The Baptist Church was dealt a severe blow with detention of two if its U.S. ministers and of 40 other preachers of that religious group, accused of using religion as a front for carrying out activities against the regime. Many members of Jehovah’s Witnesses have been sentenced for refusing to comply with the requirement of obligatory military service or to accept national symbols such as the flag and the national anthem, and it is believed that a large number of them have served short prison terms.
23. Illegal migrants have also been imprisoned, since exit restrictions resulted in the arrest of thousands of persons; and finally, persons of no particular political profession who only stated disagreement with the regime, for which they were deprived of their liberty. The functions assigned to the Committees for the Defense of the Revolution and the zeal with which those functions have been carried out has already been described.
24. In accordance with the content of previous reports and the information currently available to the Commission, prison conditions have varied in different periods. Whereas a general improvement might be discerned in broad terms, such improvement is accompanied by polarization and differentiation among detainees who have accepted the rehabilitation plan and those who have not done so (“plantados”), resulting in an extremely harsh fate for the latter.
25. From the triumph of the Cuban revolution until the middle of the nineteen sixties, prison conditions were very deficient. Even bearing in mind that the revolution inherited obsolete and wretched prisons that date back to the period of Spanish demoniation, this in itself cannot justify what has been denounced as deliberately severe and degrading treatment. Denunciations concerning prevailing conditions in the Fortaleza La Cabana, Castillo El Principe, the model prison of the Isle of Pines and to a lesser extent those of Guanajay, Guanabacoa and Baracoa describe serious violations of human rights. Testimony given to the Commission denounced the prohibition of the receipt of any kind of medicine on the pretext of preventing “hoarding and speculation”; books and other reading material were totally prohibited for prolonged periods; severe restrictions were placed on family visits and personal mail was intercepted for prolonged periods of up to five years; and both extreme crowding and long periods of solitary confinement were reported.
26. More concretely, conditions in Fortaleza La Cabana were terrible: the sleep of prisoners was often interrupted by violent inspections. Some prisoners were kept in solitary cells for periods of over one year for having shown defiance to their wardens. The twelve underground cellblocks, with no natural light and poor ventilation, lodged a population of detainees several times that held in the past. It has also been pointed out that at the beginning of the current regime mass executions by firing squads were carried out at La Fortaleza; at times, 20 to 25 executions took place per week, and up to 27 in a single night. The conditions at Castillo El Principe have been described in similar terms and it is estimated that of 8,000 prisoners, approximately 1,000 were political prisoners. Unexpected night inspections finally led the prisoners to riot.
27. The four circular prisons on the Isle of Pines together held 7,000 prisoners, (each originally had capacity for 870 detainees). According to testimony, inspections were also frequent, the physical integrity of prisoners was violated, and they were insulted and severely punished with beatings, solidarity confinement, and deprivation of food and water. In general, food was considered to be of very deficient quality and scarce, medical attention was poor and letters were limited to one per month and visits to one or two per year.
28. In 1961 the Cuban Government introduced the principle of rehabilitation, which included obligatory political indoctrination. It is estimated that in the mid-sixties only 20% of prisoners of the island accepted that program. This led to introduction of the “Special Camilo Cienfuegos Plan” to break the resistance of prisoners and force them to accept rehabilitation. The plan consisted essentially of forced labor; those categorized as “dangerous persons” were forced to labor long hours in the marble quarries.
29. Intense pressure to accept rehabilitation marked the second period, during which the structure of the penal and educational system of the revolution became more organized. The closing of the isle of Pines prison in 1967 marked the gradual beginning of the process of closing most of the former detention centers and construction of modern prisons. This period is characterized by greater polarization in the treatment of political prisoners; on the one hand, there were those who persisted in opposing the process and, on the other, those who accepted rehabilitation. Labor in the open camps, practically unsupervised, would lead the latter to liberty through self regeneration and re-adaptation to life in the new society. Special agencies would be entrusted with their full return to society.
30. Although most political prisoners came to accept the so-called “re-education”, to a large extent as the result of the coercion to which they were subjected, a persevering minority continued to refuse it, and this minority became the focus of attention of the IACHR. The conditions endured by the so-called plantados (intransigent prisoners) have been repeatedly denounced by the Commission.
31. In 1967, definition of the status of political prisoners became a major issue when authorities ordered all detainees, without distinction, to wear the blue uniform of common criminals, claiming that this measure was an integral part of the “Plan for Reeducation”. Relatives were not permitted to send clothes to those who refused to accept the new rule, and their original yellow uniforms were forcibly taken from them. Nevertheless, they preferred to remain in their underwear and were subjected to reprisals and punishment by prison officials.
32. Faced with this deterioration in their situation, the “plantados” reacted with prolonged hunger strikes that forced the Government, in 1968, to re-issue the yellow uniforms. The confrontation, however was to continue. The maximum security prison of Boniato, which held many of the “plantados”, became a symbol of severe and degrading treatment. In addition, that same year a group was transferred to the “gavetas” (small lockers) of Tres Maceo and San Ramon, where three persons were squeezed into each cell, where there was no room to move about, and this small space also served as their toilet. In 1970, it was apparent that the overwhelming majority of prisoners accepted rehabilitation. Even so, between 10% and 20% of the prisoners persisted in rejecting it; some of these were the only ones that were not granted the governmental pardon of 1980 and they were kept in prison after serving the entirety of their sentences. With the introduction of the “Progressive Plan” in 1971, labor without the indoctrination program was offered as an option, and this alternative divided the “plantados” into two groups: the most radical who opposed any compromise and remained in their underwear (“plantados en calzoncillos”) and those who also refused to work, but who wore the yellow uniform.
33. The alleged severe conditions and maltreatment have been extensively denounced by the prisoners themselves and their families through information smuggled out of the prison establishment, and following their release and exile. There is a pattern to the treatment: interruption of mail and visits, in some cases for years; deficient medical attention, especially since many of the prisoners were weakened by frequent hunger strikes and became chronically ill or invalids (in some cases this led to the death of prisoners, as was reported in the cases of Luis Alvarez in 1967 and Pedro Luis Boitel in 1972); poor ventilation and crowded cells; or alternatively, long term incomunicado detention, at times in rat-infested places; deprivation of food as punishment, and the withholding of medicine.
34. Women “plantadas” also complained of harsh treatment including coercion, incomunicado detention and deficient medical attention. Attention is drawn unparticular to the "tapiadas”, locked in hermetically sealed cells with welded doors with a slat at the bottom to pass through food; hard labor on farms, threats and beatings.
35. Reference is also made to the inadequate transportation conditions between various detention centers. The policy itself, which requires the frequent transfer of prisoners from one prison to another, was frequently interpreted as an attempt to prevent them from establishing ties of friendship and developing an esprit de corps. These transfers have also been considered additional punishment, not only because of the deplorable conditions of the transfer itself, but also because of the additional difficulties it entailed for the families of political prisoners in visiting them.
36. Furthermore, there have been denunciations of physical confrontations between prisoners in 1971, 1972, and 1975, which in 1975 resulted in the death of some inmates.
37. Until the beginning of the nineteen eighties, there was continual pressure on the plantados to wear the blue uniforms, even in the final stage of their detention. According to the statements of one source, “the government is giving them a choice: either they wear the uniform as the last requirement before release, or they face the possibility of being sentenced again to another prison term”. In general, symptoms of violence reemerged during the prisoner’s final period in prison.
b. “Resentences” political prisoners
38. In its Sixth Report on the Situation of Political Prisoners in Cuba, the IACHR expressed its concern about a legal order which “permits a sentence to be extended without due process¼” The Commission continues to receive such complaints and is unaware of the revocation of such laws which permitted of political prisoners to be re-sentenced on the grounds of their being in a “state of dangerousness”.
39. Testimony recently received by the Commission indicates that resentenced political prisoners are submitted to particularly harsh conditions, especially those in the Boniato prison. This gave rise to a further hunger strike in October, 1982.
3. Post-imprisonment Discrimination
40. The Commission has received testimony in which it is stated that former political prisoners are the victims of discriminatory treatment once they have been released. In this regard, it has been pointed out that their documents are stamped (a triangle with the inscription CIRP) to identify them as former prisoners. This causes problems in obtaining supplies by use of ration cards, appropriate housing and, especially, employment. The Commission has been apprised of the particularly harsh Conditions to which former women prisoners were subjected in the period prior to their release.
41. The Commission considers that treatment of former political prisoners by Cuban authorities violates their rights as human beings; it considers that this discriminatory treatment prolongs in time, through other forms, the punishments to which they may have been subjected while deprived of their liberty. The Commission therefore urges the Government of Cuba to give released persons, who have been detained for political misconduct, the same living conditions as are granted to persons of equivalent professional standing, and not to subject them to any form of discrimination by virtue of having served a sentence for political reasons.
4. Political Prisoners released as a result of the Dialogue
42. In 1966 Fidel Castro stated that his Government stood ready to consider the possibility of releasing the large majority of political prisoners if there were a relaxation of tensions in the relations between Cuba and the united States. Having obtained what the Government of Cuba considered to be a positive change in that respect, approximately 3,600 political prisoners were pardoned in 1979, in the framework of a broader dialogue held between the Cuban Government and representatives of the Cuban community in exile. Many of the released prisoners left Cuba after obtaining exit permits from Cuban authorities—a commitment undertaken by Cuba in the course of the dialogue—as well as the corresponding authorization of the country where they wished to relocate. The Government of the United States, according to background information in the possession of the Commission, also undertook to allow entry to the released political prisoners who wished to relocate in its territory.
43. While former political prisoners and their immediate families were in the process of relocating abroad, a number of events took place which led to the suspension of the concession of emigration visas that had facilitated entry into the United States of many released political prisoners. According to reports in the hands of the commission, the number of former prisoners affected reaches 1,500.
44. The Commission recognizes and values the efforts that led to the release of political prisoners in the course of 1979, while also stating its profound concern at the suspension of the process of relocation of large number of these prisoners. In this light, the Commission requests the Government of the countries involved to adopt the pertinent measures to allow entry into their countries of the political prisoners released as a result of the dialogue who wish to do so; likewise, it also urges the Government of Cuba to prevent this group of former prisoners from being subjected to official discrimination that prolongs, under other forms, the punishment entailed in their previous deprivation of liberty.
 International Commission of Jurists, “Cuba and the Rule of Law”, Geneva, 1962, pp.78-112.
 Ibid, p. 99.
 “State of danger” is defined in article 76 of the Penal Code in the following terms:
“The special proclivity of a person to commit crimes, demonstrated by observed conduct manifestly contrary to the rules of socialist ethics is considered to be a state of danger”.
“Anti-social conduct”, for its part, is defined in article 77, subparagraph 7:
“Persons who violate or jeopardize the rules of socialist coexistence, or who violate the rights of others or frequently disturb the order of the community, through acts of violence, or speech, or acts, or through other provocative or threatening means are considered to be in a state of danger by virtue of anti-social conduct”.
 See Chapter VI of this report.
 On the other hand, conditions for those who chose rehabilitation and for common criminals clearly improved. They participated in various labor projects, particularly in construction, and conditions changed to the point that the Cuban Government pointed to them as exemplary models in comparison with the penal systems of other countries. In 1974, with the closing of the remaining old prison such as la Cabana and El Principe, and with the termination of the Combinado del Este close to Havana in 1975, a new cycle of environmental planning began. In order to understand the function of these new detention centers, mention should be made of the nature of the “Progressive Plan.”
The plan could work with respect to political prisoners, with the exception of the elements of re-education and obligatory indoctrination. Prisoners are remunerated monthly on a par with other laborers, although apparently they work longer hours, and a small sum is discounted from wages to cover the cost of their food, clothing, etc. Depending on the category of the prisoner, they are allowed regular visits from family members and the privilege of spending weekends in their homes. Labor is performed in specially equipped centers adjacent to the new “combinados” (combined security centers), and in many cases these centers produce prefabricated components for construction. Nevertheless, many are lodged in open prison camps (open fronts), where security is minimal and prisoners often work on construction projects.
 The Commission has drawn up the following list of resentenced political prisoners on the basis of denunciations and testimony: Acosta Lozada, Julio E. Artiles, José; Barco Gómez, José M.; Cabrera Torres, Héctor; Capote Rodríguez, Eduardo; Crespo, Ezequiel; Chanes de Armas, Francisco; Dominguez Luna, Julian; Duque Fabelo, Augusto; Farra Serrano, Angel D; Garcia Delgado, Eugenio; García Fuentes, Rolando; García Rodríguez, Gilberto; González Rodríguez, Pedro; González Ruiz, Juan de Dios; guzman Marrero, Basilio; Hernandez Cruz, Manuel; Hernandez Padilla, Antonio; Hernandez Ruiz, Ismael; Infante Jiménez, Servando; Lara Gallo, Luis; López Fernández, Pablo R; López Rojas, Narciso; Martínez Carrala, José; Martínez (Montey) Hernandez, Pedro; Montes de Oca Gil, Sergio; Moreno Melo, Magno; Martínez Peréz, Gerardo; Mirrabal Rodríguez, Santos; Martínez Roque, Wilfredo; Napoles Miranda, Rodolfo; Neyra García, Benigno; Noble Alexander, Humerto; Novo Alvarez, Alejandro; Palomeque Bussier, Ernesto; Pérez Barrios, Cleto; Perez Cruz Jesus; Pérez Montanez, Aristides; Pino González, Manuel del; Prado Fernández, Alejandro G; Ramos González, Rene; Ramos Molina, Fabio; Riveros Millares, Rolando; Rodríguez Barrientos, Silvino; Rodríguez Rodríguez, Isidro; Ruiz Sanchez, Eladio; Santana Alvarez, Jesus; Santana Camejo, Pedro; Sánchez Arango, Jesus; Sánchez Garcia, Abraham; Suarez Gonzalez, Rafael; Trujillo Pacheco, Rafael; Valdes Camejo, juan F; Valle Pina, Juan; Valle Vilardel, Raúl del; Vásquez Robles, Rafael; Vásquez Rosales, Enrique; Young Martínez, Armando; Zamora Chirino, Remberto y Zayas de la Paz, Ricardo.