RIGHT TO LIFE
A. GENERAL OBSERVATIONS
1. The American Declaration establishes in respect of the right to life:
Article I. Every human being has the right to life, liberty and the security of his person.
2. The Commission has further considered that the right to life is “the basis and support of all other rights”, and that it
may never be suspended. Governments may not use, under any circumstances, illegal or summary execution to restore public order. This type of measure is proscribed by the Constitutions of the States and the international instruments that protect the fundamental rights of persons.
3. The death penalty is closely related to observance of the right to life, and in this respect the IACHR has stated that it:
notes with concern that is some countries of the hemisphere legislation related to the death penalty has been enacted, either to reestablish it or to extend it to crimes of a political and social nature, which is clearly incompatible with the necessary application of the means of protection of the right to life.
4. In accordance with the methodology that has been followed in this report, the legal provisions in force in Cuba with respect to the right to life will be considered below, and will be followed by an analysis of the practice followed by the Government of that country with respect to this fundamental right.
B. LEGAL FRAMEWORK
5. The Cuban Constitution of 1940 prohibited application of the death penalty; nevertheless, it was reestablished by the overthrown President Batista. Upon the installation of the new regime on January 1, 1959, the Constitution of 1940 came into force, but it was in effect in its entirety for a very short time. It was significantly changed as a result of amendments. This was the case with the right to life set forth in the second amendment to the Constitution, on January 13, 1959; Article 3 amended Article 25 of the Constitution by introducing the death penalty for political reasons for armed groups who had supported Batista and also those found guilty of subversion of the political order.
6. On January 30, 1959, Law No. 33 was enacted, further broadening the range of crimes to which the death penalty was applicable (homicide, espionage, treason and rape). Law No. 425 of July 7, 1959 also extended the death penalty to those guilty of “counterrevolutionary” acts. The last relevant legal provision enacted in the initial stages was Law no. 988, which set forth the categories of anti-governmental actions that are punishable by the death penalty.
7. The Constitution of 1976 does not refer directly to the death penalty, but in Article 64 it establishes that “treason against one’s country is the most serious of crimes; those who commit it are subject to the most severe penalties”. Bearing in mind that Cuban legislation admits the death penalty, the Constitution serves as a basis to justify application of it in the cases provided for in the above-mentioned article.
8. The new Penal Code, which has been in force since November 1, 1979, institutes the death penalty for a broad range of common and political crimes. Many of the criminal acts set forth in the Code derive from earlier provisions, to which should be added the new crimes defined throughout the course of the political process begun in 1959.
9. Crimes punishable by death in the Penal Code in force, linked to the security of the State (Book II, title I), are divided into those that refer to external security (Chapter I) and those relating to the internal security of the State (Chapter II). Chapter III sets forth some crimes punishable by death which are crimes against international peace and law, and this section concludes with Chapter IV which sets forth other acts against the security of the State.
10. Crimes against the external security of the State, and which may give rise to application of the death penalty, are those constituted of acts against the independence or territorial integrity of the State (Article 95); those aimed at promoting war or armed action against the State (Article 96); the provision of armed services against the homeland (Article 97): acts of aid to the enemy—defined in seven subparagraphs—(Article 98); and espionage (Article 101).
11. Crimes against the internal security of the State which may give rise to application of the death penalty are actions aimed at armed rebellion for the purpose of: impeding the higher organs of the state or of Government from fulfilling their functions; changing the economic, political or social regime and changing the constitution or form of government (Article 101); the crime of sedition (Article 105, subparagraph a); usurpation of political or military control (Article 107); proven sabotage (Article 110); and terrorism (Articles 111 to 113).
12. Crimes against peace and international law that may entail application of the death penalty are those constituted of hostile acts against a foreign state that result in reprisals against the Cuban state or its citizens (Article 115); violation of a truce or armistice (Article 117); violation, in time of war, of the rules of International Law (Article 122); genocide (Article 124); piracy (Article 125); association with a group of mercenaries (Article 127); and apartheid (Article 128)
13. As indicated above, Title IV defines other actions that may be punished with the death penalty: clandestine entry into or violation of national territory for the purpose of committing any of the crimes set forth in title I (Security of the State) and the formation of or participation in armed groups to commit the above-mentioned crimes (Article 132).
14. The Penal Code now in force also applies the death penalty to other categories of crimes. Thus, the death penalty may be applied to anyone who promotes disturbances or disorders while under arrest, when it leads to the death of third parties or any other “very serious” occurrence (Article 186, subparagraph 3); to anyone who causes serious harm which results in the death or serious injury of third parties (Article 195); and anyone who commits various kinds of crimes against persons: aggravated homicide (Articles 316 and 317); rape (Article 353); violent pederasty or pederasty that exploits the weakness of the victim (Article 354); theft that involves violence against persons or objects when there are specific aggravating circumstances (Articles 386 and 387).
15. Under the current Cuban legal system, the death penalty is not applicable to persons under 20 years of age or women who are pregnant when sentence is passes (article 29). The death penalty may be appealed and the remedy shall be decided by the People’s Supreme Court; that appeal is automatically admitted even when not interposed by the accused (Criminal Procedure Law, articles 60 to 64).
16. The Commission considers that the range of crimes punishable by the death penalty is excessively broad. Although in terms of procedure, the remedy of appeal aims at guaranteeing careful application of capital punishment it is also true that the absence of a system of justice independent of political power suggests that this remedy does not function as a true guarantee in the case of crimes committed against the security of the Cuban State. This means that the death penalty for political crimes permanently subsists as a latent threat to citizens. It should also be recognized that under the current juridical system, the death penalty is always accompanied by the alternative of deprivation of liberty, which represents an improvement over other legal provisions enacted in the current Cuban political process—such as that mentioned in Law No. 988—in which death was the only penalty provided for certain kinds of crimes.
C. PRACTICE OF THE GOVERNMENT OF CUBA WITH RESPECT TO THE RIGHT TO LIFE
17. On numerous occasions the Commission has expressed to the Government of Cuba its concern at the repeated denunciations it has received of violations of the right to life imputed to the government. That government has never replied to the denunciations transmitted by the Commission nor to the Reports it has prepared. In application of the normative instruments which govern the IACHR, a lack of reply from the Government of Cuba has been considered admission of the veracity of the denounced occurrences.
18. Violations of the right to life by the Government of Cuba may be basically categorized in two groups, according to the motives of such violations: (a) deprivation of life as a result of sentence passed by courts for which the minimal procedures required by due process of law have not been observed, and (b) the deaths of political prisoners due to the conditions of confinement in which they serve their sentences.
19. In its First Report on the situation of Human Rights in Cuba (May, 1962), the IACHR expressed its concern to the Government of that country at the numerous denunciations presented for alleged violations of the right to life in the form of executions decreed by Revolutionary Tribunals and by the reenactment of the death penalty. In the Commission’s Second Report (May, 1963), which addressed the situation of political prisoners, several denunciations were presented which recounted the executions of numerous prisoners and the conditions under which such executions took place. In its Third Report (April 1967), the Commission again referred to violations of the right to life by the Government of Cuba by means of “court sentences which impose the death penalty by firing squad, following trials held without procedural guarantees for the effective means of defense for the accused”, affirming that “in other cases, violation of the right to life takes place by agents of armed groups, without any trial whatsoever”. In its Fourth Report (Second Report on the situation of Political Prisoners, April 1970), the Commission again referred to this subject, and reiterated affirmations based on denunciations that described situations similar to those described above, and which in that report included references to executions that were carried out while sentence was still under appeal. In its Fifth Report (May, 1976), the Commission addressed the subject of violations of the right to life by the Government of Cuba, and transcribed a list of persons executed by that government as well as a description of the places in which such executions were taking place.
20. The Sixth Report prepared by the Commission (December, 1979), affirmed that it had not received denunciations of executions in Cuba, and at the same time expressed its greater concern at the possibilities of applying the death penalty for political motives, due to legislation in force, rather than at the practice of the Government of Cuba in this respect. Nevertheless, well-informed sources have pointed out that during 1981-1982 approximately 80 prisoners were executed pursuant to judicial sentences. This situation represents a marked regression as concerns the protection of the right to life in Cuba and evidences a resurgence of the political tensions in that country, as well as of its repressive apparatus. The IACHR expresses, once again, to the Cuban Government, its profound concern regarding these developments.
21. With respect to political prisoners, the conditions under which they serve their sentences which may in some cases, have caused their death, include: direct executions and disproportionate disciplinary measures; lack of adequate medical care; conditions that gave rise to hunger strikes and the lack of minimal medical care under these circumstances; physical and psychological torture that led to suicide, and dangerous conditions in the course of forced labor, leading to fatal accidents.
In its previous reports, the IACHR referred to these situations; however, penitentiary conditions have improved in recent years, which would seem to explain why cases of loss of life in prison have not been reported.
 IACHR, Ten Years ¼ op. Cit., pp. 331
 IACHR, Ten Years ¼ op. Cit., pp. 316
 Amnesty International Annual Report, 1983, p. 130.