RIGHT TO A FAIR TRIAL AND TO DUE PROCESS OF LAW
A. GENERAL OBSERVATIONS
1. The American Declaration recognizes the right to a fair trial and to due process of law in the following articles:
Article XVIII. Every person may resort to the courts to ensure respect for his legal rights. There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights.
Article XXVI. Every accused person is presumed to be innocent until proved guilty.
Every person accused of an offense has the right to be given an impartial and public hearing, and to be tried by courts previously established in accordance with pre-existing laws, and not to receive cruel, infamous or unusual punishment.
2. It is the doctrine of the Commission that the effective observance of the guarantees set forth in the above-cited articles is based on the independence of the judiciary, which derives from the classic separation of the three branches of government. This is the logical consequence of the very concept of human rights. In effect, to protect the rights of individuals against possible arbitrary actions of the State, it is essential that one of the branches have the independence that permits it to judge both the actions of the Executive Branch and the Constitutionality of the laws enacted and even the judgments handed down by its own members. Therefore, the Commission considers that the independence of the judiciary is an essential requisite for the practical observance of human rights.
3. The normative framework for the administration of justice in Cuba is studied below, followed by a presentation of legal provisions bearing on the right to a fair trial and to due process of law. In conclusion, the practice of the Cuban State with respect to those rights is described.
B. INSTITUTIONAL ORGANIZATION OF THE SYSTEM
FOR THE ADMINISTRATION OF JUSTICE
4. As was pointed out above, there is no separation of powers in Cuba which, in this case, would guarantee the independence of the administration of justice. The Commission recognizes that the mere constitutional stipulation of the independence of judicial organs from political power is not a sufficient condition to guarantee the proper administration of justice, but it does consider that it is a necessary condition. As the Constitution does not provide for a separation of powers, the administration of justice is subsumed to political power in fact and in law. In effect, Article 122 of the Constitution of Cuba stipulates:
The courts constitute a system of state organs, structured with functional independence from any other organ and subordinated only to the National Assembly of People’s Power and the Council of State.
5. Subordination of the Courts to the national Assembly of People’s Power, and especially to the Council of State, establishes a relation of dependence on political power. This relation is reinforced by the dependence on political power. This relation is reinforced by the function of the Council of State to “give existing laws, a general and compulsory interpretation whenever necessary” (Article 88, subparagraph d of the Constitution). In addition, the Constitution establishes broad margins within which such interpretation may be made, in the repeatedly mentioned article 61.
6. It is a political body—the Council of State—which gives the official interpretation of the meaning of such imprecise terms as “the existence and objectives of the socialist state” and “the decision of the Cuban people to build socialism and communism”. All the “freedoms granted to citizens” are subordinate to such interpretation; and it is the administration of justice system which is entrusted with the application of whatever interpretations may be given in particular cases. This ideological and political bias has been reinforced by the functions bestowed on the courts by the Constitution: “to uphold and strengthen socialist legality”; “to safeguard the economic, social and political regime established in the Constitution” (Article 123, subparagraphs a and b).
7. The subordination for the system for the administration of justice to political action is another element taken from Marxist theory, according to which the law reflects the relations of production and is therefore, an instrument of the ruling class. This concept is enshrined in the Constitution, in paragraph 1 of Article 9 which states, “the Constitution and the laws of the socialist state are the juridical expression of the socialist relations of production and of the interests and will of the working people”. This again clearly demonstrates that only political power--i.e., the group in power—is capable of defining whether the norms constitute, at any given moment, the correct expression of the “socialist relations of production” and if they respond to the interests and will “of the working people”.
8. This subordination of the system for the administration of justice to political power gives rise to intense insecurity among individuals who are at the mercy of abrupt changes that can affect the decisions of the courts according to the decisions adopted by the group in power. Thus in the nineteen sixties, especially in the first half, the system for the administration of justice was completely subordinated to the directives of political power, and the special People’s Courts were adopted, which acted expeditiously with respect to the possible commission of political crimes.
9. The 1973 reorganization of the judiciary and the 1977 Law of the Judicial System, by introducing professional judges in the superior courts, the supreme people’s courts, and the people’s provincial courts—both of which currently have jurisdiction over counter-revolutionary crimes—lend a certain professionalism to the courts. The two lower courts, the People’s Regional Courts and the People’s Basic Courts were merged to form the people’s Municipal Courts in accordance with the 1977 Law of the Judicial system, following reorganization of the provincial system of Cuba. These lower courts do not have jurisdiction over political crimes. Adoption of these measures, together with promulgation of the Criminal Procedure Code and the Penal Code, served to create a more stable form of “socialist juridical system”.
10. When the National assembly met in 1979, however, full preparations had been made to launch an attach against the leniency of the courts, prosecutors, and police. President Fidel Castro denounced the effort to provide “guarantees for criminals”, when instead it was essential to provide “guarantees to society”. The President censured the supreme People’s Court’s resolution that required the police to inform the accused of the nature of the case presented by the prosecutor; opposed the use of “technical/juridical arguments” that would give liberty to the accused, and strongly emphasized his support for detention without bond pending trial. Within the context of the difficulties that arose both internally and externally, the Cuban government unleashed a strong wave of repression at the end of 1979 and in the first half of 1980. Earlier trends in the courts and with respect to police procedures ere halted and completely modified.
11. In 1980 a new policy to make prison regulations yet more severe was instituted. Once again, the techniques of mobilization were employed to intimidate critics of the government. In 1980, the Committees for the Defense of the Revolution were convened to organize “assemblies of repudiation”, at which members could express their reproof of neighbors who wished to leave the country. On some occasions these meetings erupted in acts of violence against possible emigrants. In the course of this period of repression, the Ministers of the Interior and of Justice, the Prosecutor General and the President of the People’s supreme Court, were replaced.
12. Although toward the end of 1980 some legal concepts were reaffirmed, the possibility of repression such as that of 1979-1980 creates intense uncertainty and fear that what is permitted at one time may soon thereafter be prohibited.
13. On the basis of the above, the Commission concludes that in Cuba there is neither a legal foundation nor a political practice that give real independence to the system for the administration of justice, which the IACHR considers essential for the effective observance of human rights.
C. JUDICIAL GUARANTEES IN THE LAW
14. Article 58 of the Constitution provides that:
No one may be tried or sentenced except by a competent court, by virtue of laws existing prior to the crime and with the formalities and guarantees that the laws establish.
Every accused person has the right to a defense.
No violence obtained in violation of the above are void, and those responsible shall be punished as prescribed by law.
15. In addition, article 60 stipulates that:
Penal laws are retroactive when they benefit the accused or sentenced. Other laws are not retroactive, the contrary is specified for reasons of social or public interest.
16. These two articles set forth five rights related to the right to a fair trial and to be tried in an impartial and fair procedure: to be tried under ordinary jurisdiction; to have the services of a attorney; to personal inviolability and integrity while in the custody of the authorities; to remain silent during the trial, which is related to the guarantee against statement obtained through torture, and to be tried on the basis of criminal laws enacted prior to the imputed commission of the crime.
17. Two of the human rights enshrined in the American Declaration are absent from the Cuban Constitution: the right to resort freely to the courts to seek justice and the presumption of innocence until proved guilty. However, the first of these rights is indirectly upheld in article 123, subparagraph d of the Constitution where, in reference to the organization of the courts and the Office of the Attorney General of the Republic, it states that:
The principal objectives of the activity of the courts are:
d. To protect the life, freedom, dignity, honor, property, relations and other legitimate rights and interests of citizens.
18. Exercise of this function requires that citizens be able to resort freely to the courts or to the attorney general to request their protection. With respect to the presumption of innocence, although this right is not upheld in the Constitution, it is set forth in article 3 of the 1977 Criminal Procedure law, this legal instrument also ratifies and elaborates on the provisions contained in the articles of the Constitution. Thus, every crime is to be proved independently of the testimony of the accused, his spouse and his relatives four times removed, if blood relations, and twice if by marriage (Article 3); no accused person is required to testify at his own trial (Article 312); no violence or coercion of any kind may be used against persons to compel them to testify, and testimony obtained in contravention of this principle is null (Article 166); every accused person has the right to know of what he has been accused, who accuses him and what the charges against him are, and the instructor del sumario (Examining Officer) is obligated to so advise him (Article 161); every accused person has the right to appoint a defense attorney as soon as he is advised of the court’s resolution (Article 247); application of a preventive measure renders the accused a party to the proceedings and he may produce evidence in his favor (Article 249), and in the course of the oral proceedings (Article 280); the accused has the right to refuse lay or robed judges who are on the court which is to judge him (Article 23); the accused finally has the right to appeal a decision with which he does not agree (Article 58).
19. It should also be pointed out that Article 456, section 7, of the Criminal Procedure Law negatively limits observance of the principle of the matter judged, or res judicata, by providing that a citizen my be tried more than once for the same crime, if after his acquittal—and before the crime is extinguished by extinctive prescription—new evidence appears to incriminate the acquitted, and the prosecutor, within one year of learning of such evidence, requests the courts to retry the case. These provisions also apply if the evidence produced indicates that the acquitted person could be sentenced for a more serious crime or given a harsher punishment.
D. JUDICIAL GUARANTEES IN PRACTICE
20. Among the guarantees necessary for an impartial trial, the following are generally included: the right of the accused to have the charges explained to him, the right to choose a defense attorney, the right of the accused to confront his accusers, the right to have a reasonable period of time to prepare a defense, the right of the accused to produce witnesses and to cross-examine them, and the right of the accused and his defense attorney to be advised, in a timely fashion, of the trial date.
21. With respect to the appointment of a defense attorney, generally he is appointed by the court, thus denying the accused the opportunity to choose the defense attorney he deems appropriate. It should be pointed out, in the first place, that since the early years of the revolution social hostility toward lawyers has led to the exile of a large number of lawyers. There has been a marked decline in the number of law students in Cuba: from 3,852 from 1958-1959, to 135 in the period of 1970-1971. The attitude of the revolutionary regime toward independent lawyers thus resulted in limiting the options available to political prisoners.
22. In some cases, defense attorneys seeking to effectively represent their clients were arbitrarily admonished and at times arrested. Requests of the accused to select their own defense attorneys were dismissed as unnecessary. According to a reliable source, ex-prisoners stated that “during the decade of the seventies, the role defense attorneys became increasingly superfluous and they found that it benefited the interests of the client not to challenge accusations stated in the indictment, but rather to claim extenuating circumstances”. The somewhat superfluous function of State appointed attorneys can be clearly seen from the statements of prisoners, who indicate that they had no opportunity to consult with them prior to trial and that sentences were given after extremely brief trials; in one case the trial lasted no longer than ten minutes.
23. Furthermore, legislation approved by the Council of ministers had defined very clearly the role of attorneys. They should defend their clients, but they should “avoid use of defense notions that prevent justice from fulfilling its social function”. Of course, this had a chilling effect on the ability of the defense attorney to defend his client. Testimony from several detainees affirmed that their attorneys had been intimidated about defending them from fear of being “sanctioned”. Even when the client insisted on his innocence, the State appointed attorney often continued to maintain his guilt. In recent times, the courts were continuing to appoint attorneys for the accused but the latter were also allowed to choose their own defense attorneys through the Associacion de Abogados (Bar Association).
24. The right of the accused to be kept informed of his rights was established by the Constitution of 1940 and was not revoked by the Basic Law or by subsequent amendments. Furthermore, it is a fundamental right established in the new Cuban Constitution of 1976. Information from various sources allows the Commission to find that until recently, the number of accused persons informed of their rights was very small, a situation which would appear to have changed recently, although cases are still reported in which this procedure is not observed.
25. With respect to the time allowed to the accused and his attorney to prepare the defense, the testimony and denunciations received by the Commission indicate that the time was insufficient. Some claimants indicated that they had met their attorneys one hour before the scheduled opening of the trial and others had not been able to meet with their attorneys prior to the trial at all and only met them at the beginning of the trial. The accused and their defense attorneys were often not informed of the trial until the same day, and the attorneys were rarely informed of the charges during the early years of the regime.
E. JUDICIAL PROCEDURES
26. Political trials have been characterized by irregular procedure. In general terms, the data in possession of the IACHR confirms that throughout Cubas revolution, the courts have treated persons accused of “counter-revolutionary activities” arbitrarily. This conclusion can be drawn from the characteristics of those judgements. In the early years of the revolution, some trials were held in camera while others were so open that the public was invited to observe as was the television press. In both cases, due to the situations, the effective observance of the right to due process was difficult to confirm.
27. Few journalists and observers have been permitted entry on the island, and even in such exceptional cases, their presence has not contributed to significant progress in terms of judicial procedures.
28. In addition, it should be pointed out that a large number of prisoners appeared jointly before the courts, which in many cases precluded a more individualized consideration of their cases. Not only in cases such as that of the 1,179 Bay of Pigs invaders, but also in others where the accuses were given different sentences, the average number of persons on each fille was extremely high, especially in the early years of the regime.
29. Moreover, the length of the trials should be considered in light of the long sentences they produced. In general, political trials lasted from a few hours up to a maximum of three days. Quite often, trials lasted a whole day without recess. This was especially notable during the early years of the revolution, when in many cases the trial, sentencing, appeal and execution were carried out in a very short time.
30. A further characteristic of the more important political trials was that the revolutionary leaders did not hesitate to use their authority to influence the court’s decision. At times it was not clear whether their role was as witness or prosecutor. At the beginning of the trial of Huber Matos, both Raul and Fidel Castro addressed the court; the latter gave a violently accusatory speech that lasted 7 hours and that was broadcast by the State radio. A number of revolutionary leaders spoke during the trial of Marcos Rodriguez, in an attempt to describe the relationship between the members of the old-guard Communist Party and the new rebel guerrillas. Among them was then Deputy Prime minister Carlos Rafael Rodriguez, President Dorticos and Fidel Castro, televised to 600 spectators in the hearing room of the Supreme Court, at the same time that the death penalty was harshly demanded for the “traitor”. Such strong pressure through incriminatory remarks excessively influences the administration of justice, and leaves it no alternative but to endorse the verdict of the political leadership. Once again, in 1968, when the “micro-faction” was accused of “Anti-Party”, subversive activities, Anibal Escalante, considered to be the leader of the group, was sentenced to 15 years imprisonment following a 15,000-word accusation made by Raul Castro.
31. While a personal appearance in the court had a direct effect, public speeches outside of the courtroom could also affect the impartiality of the sentencing. The decision of the Cabinet to enforce the death penalty be execution within 48 hours was applied with exemplary zeal by the revolutionary tribunals. Given such conditions, it could not be hoped that the judges would guarantee the right to due process.
32. The interference of the Executive in the administration of justice became obvious in 1959, when it called for a retrial of a group of Batista’s air force pilots who had originally been acquitted, but who were convicted of genocide in the retrial; 20 of them were sentenced to 30 years imprisonment, and the other 13 were given shorter sentences. The autonomy of the administration of justice was fatally undermined, especially in political cases at the level of the higher courts. Nevertheless, at a lower level, the right to due process seemed to be observed in nonpolitical cases and sentences tended to be more lenient.
33. The Commission considers that in political trials, the Revolutionary Tribunals have acted and urged more on the basic of their belief in the values of the revolution rather than on proper judicial procedures. Moreover, the evidence would indicate that the sentences have always been fully in accord with the Executive’s idea of proper justice.
34. A large body of testimony indicates that in most cases witnesses are not presented by the defense, whereas the prosecution usually presents security agents. There are no bases in Cuban legislation to prohibit witnesses for the defense; nevertheless, in practice, it was not encouraged. It would appear that the essential reason for the absence of witnesses testifying for the defense was fear of contradicting the accusations made by the State. Nevertheless, there is evidence that the Committees for the Defense of the Revolution have occasionally testified in defense of the accused, and that they have usually obtained a reduction of their sentences.
 IACHR, Ten Years, ¼op.cit., p. 319
 Verde olivo 20, No. 28 (July 15, 1979), pp. 11 and 14; Granma Weekly Review, July 15, 1979, p. 2.
 Dominguez, Jorge, Cuba – Order and Revollution, op. Cit., p. 257.
 H. Thomas, “Cuba, The Pursuit of Freedom”, New York, Harper and Roger 1971, p. 1, 459; Roger Plant, Situation Paper on Cuba, submitted to Amnesty International in 1979, p. 28.
 R. plant, Situation Paper on Cuba, op. Cit, pp. 28 and 29.
 Amnesty international, Annual Report 1979, p. 60.
 Dominguez, J., “Cuba, ¼”, op. Cit.
 United States, State Department “Country Reports on Human Rights Practices for 1982”, February 1983, p. 463.