The International League Against Arbitrary Detention urges the Government of Cuba to take all the necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 72/2023 concerning Luis Armando Cruz Aguilera, asking the Government of Cuba to immediately and unconditionally release him and to accord him an enforceable right to compensation and other reparations in accordance with international law.
Read the full WGAD Opinion concerning Luis Armando Cruz Aguilera (Cuba): Opinion no. 72/2023.
ARRESTED WITHOUT WARRANT AND WITHOUT BEING INFORMED OF THE CHARGES
Luis Armando Cruz Aguilera is a Cuban national born in 2000, who was working as a self-defense instructor. His arrest took place in the context of the mass protests on 11 July 2021 and in the following days, which were driven by widespread shortages of food and medicine, as well as increasing governmental repression on fundamental freedoms. These protests were violently repressed by different Governmental forces, which was publicly encouraged by the Cuban President who said that "the combat order was given". Mr. Cruz Aguilera spontaneously joined one of these demonstrations on 11 July 2021 in Calzada de Managua.
On 21 July 2021, Mr. Cruz Aguilera was arrested by armed officers of the "El Hueco" unit of the Criminal Investigation and Operations Division in a municipality of the Havana. Though originally detained at this unit, he was then transferred twice to other units in August and September 2021, before being eventually transferred to the "Combinado del Este" penitentiary, where he was apparently still being detained at the time of the source's communication.
During his detention, Mr. Cruz Aguilera was accused - alongside other persons - of having thrown different objects at a police's car, of having climbed on it, and more generally of the crime of sedition. He was eventually sentenced to 15 years of prison by the Criminal Chamber of the Provincial People's Court of Havana. An appeal was filed based on an error in the legal qualification of the crime - which was not sedition, but public disorder. Based on this, the initial prison sentence was adjusted from 15 to 10 years in June 2022.
The Government was given the opportunity to answer these allegations, which it did but after the extended deadline.
First, the source argued that Mr. Cruz Aguilera was arrested on 21 July 2021 without being immediately presented with an arrest warrant. His rights were not explained to him, nor was he informed how to exercise them. The Government claimed his arrest took place on 7 August 2021, and that a report of the arrest was made at the time and singed by Mr. Cruz Aguilera - to which the source answered this report had surely been falsified. Considering the above, the Working Group considered the Government's answer insufficient, and thus found that Mr. Cruz Aguilera's rights to be informed of the reasons for his detention and to challenge its legality, enshrined in article 9 of the Universal Declaration of Human Rights, had been violated.
Additionally, following his arrest, Mr. Cruz Aguilera was only brought before a judicial authority, namely the Chamber for Crimes against State Security of the Provincial People's Court of Havana, in January 2022, thus 6 months after his arrest. Considering the Government's answer insufficient for not addressing this specific issue, the Working Group considered this a further violation of Mr. Cruz Aguilera's right to challenge the legality of his detention, guaranteed in article 9 of the Universal Declaration of Human Rights. Besides, the Working Group noted that pre-trial detention must remain exceptional. As its necessity was not sufficiently justified by the Government, the Working Group considered it a further violation of article 9 of the Universal Declaration of Human Rights.
Consequently, considering all the above, the Working Group concluded that Mr. Cruz Aguilera's arrest and detention were arbitrary under Category I, as they had no legal basis.
VIOLATION OF HIS RIGHTS TO FREEDOM OF EXPRESSION AND PEACEFUL ASSEMBLY
The source argued that Luis Armando Cruz Aguilera's arrest and detention resulted from his exercise of his fundamental rights, which the Government denied.
To decide on this issue, the Working Group considered the following: Mr. Cruz Aguilera had no criminal record prior to the protest; did not organise it but rather spontaneously joined it, as others did; and while he was accused, alongside others, of some violent acts against a police car, these allegations were found insufficient to a constitute substantive participation in acts of violence. Moreover, the Working Group considered that until the authorities' intervention, the demonstration was peaceful, and that by acting as they did, officials acted contrary to their obligations to facilitate the peaceful demonstration. Lastly, though the Government asserted demonstrators uttered offensive phrases and slogans to incite public disorder, the Working Group recalled that even offensive expressions are part of the right to freedom of expression.
Considering the above, the Working Group concluded that Mr. Cruz Aguilera was indeed denied his rights to freedom of expression and peaceful assembly, enshrined in articles 19 and 20 of the Universal Declaration of Human Rights.
Therefore, the Working Group found that Mr. Cruz Aguilera arrest and detention lacked a legal basis, rendering his deprivation of liberty arbitrary under category II.
HELD INCOMMUNICADO, LACK OF LEGAL REPRESENTATION, AND OTHER VIOLATIONS OF HIS RIGHT TO A FAIR TRIAL
First, according to the source, following his arrest, Mr. Cruz Aguilera was held incommunicado until 12 October 2021, date on which he was allowed to contact his family for the first time. This was 3 months after his arrest. The Government denied this, claiming that Mr. Cruz Aguilera's mother could go to his place of detention twice and that in addition COVID restrictions were in place at the time. The Working Group recalled the disrepancies in the source and Government's allegations concerning the date of the arrest, and considered it may suggest a period of incommunicado detention. Besides, the Working Group considered the Government's answer insufficient, for not specifically explaining whether his mother was allowed to visit him, and for COVID restrictions do not restrict electronic communications. Altogether, the Working Group thus concluded Mr. Cruz Aguilera was held incommunicado detention during this period, in violation of his right to challenge the legality of his detention, guaranteed by article 6 of the Universal Declaration of Human Rights.
Mr. Cruz Aguilera was interrogated by the police under duress and without the presence of his legal representation. While in pre-trial detention, the he was also victim of physical and psychological abuse. During the preparatory phase of his trial, the court-appointed lawyer requested a change in the precautionary measure of provisional detention, which was denied. Lastly, in her provisional conclusions, the Prosecutor did not mention the abuses and violations of rights that Mr. Cruz Aguilera suffered from during the criminal proceedings. Considering the above in light of the earlier findings on pre-trial and incommunicado detention, the Working Group concluded that in these conditions, the guarantee of Mr. Cruz Aguilera's right to a fair trial was impossible, in violatiton of article 10 of the Universal Declaration of Human Rights. Moreover, concerning the mistreatments he was subjected to, the Working Group was concerned they may constitute cruel, inhuman or degrading treatment or punishment and be, which would be incompatible with article 5 of the Universal Declaration of Human Rights.
Finally, despite the fact that Mr. Cruz Aguilera had no criminal record, he was shackled hand and foot in order to be led out of the prison. As such, the Working Group considered that Mr. Cruz Aguilera's right to the presumption of innocence, enshrined in article 11(1) of the Universal Declaration of Human Rights, had been violated. This violation was further aggravated by the fact that while under provisional detention, Mr. Cruz Aguilera was interned with prisoners serving custodial sentences. Altogether, the Working Group found these actions to be in violation of Mr. Cruz Aguilera's rights to legal assistance and to an independent and impartial tribunal, guaranteed by articles 8 and 10 of the Universal Declaration of Human Rights.
Henceforth, the Working Group considered that these circumstances led to a violation of article 9 of the Universal Declaration of Human Rights, and were of such gravity as to render Mr. Cruz Aguilera's detention arbitrary under category III.
CONCLUSIONS OF THE UN WORKING GROUP AGAINST ARBITRARY DETENTION
In light of the foregoing, the United Nations Working Group on Arbitrary Detention considered that the detention of Mr. Cruz Aguilera was arbitrary and fell under categories I, II, and III because his deprivation of liberty contravened articles 7, 9, 18, 19, and 20 of the Universal Declaration of Human Rights.
The Working Group recommended that the Government of Cuba take the steps necessary to remedy the situation of Mr. Cruz Aguilera without delay and bring it into conformity with the relevant international norms. The Working group considered that, taking into account all circumstances of the case, the appropriate remedy would be to release Mr. Cruz Aguilera immediately and accord him an enforceable right to compensation and other reparations, in accordance with international law.
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