CUBA: ARBITRARY DETENTION OF PEACEFUL PROTESTOR ROBERTO PÉREZ FONSECA

The International League Against Arbitrary Detention urges Cuba to take all the necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 51/2023 concerning Roberto Pérez Fonseca, asking Cuba to immediately 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 this individual: Opinion 51/2023.

ARRESTED IN RELATION TO HIS PARTICIPATION TO A PEACEFUL PROTEST

Roberto Pérez Fonseca, a Cuban national born on February 25, 1983, usually resides in San José de las Lajas, Mayabeque province. On 11 July 2021, Mr. Pérez participated in a peaceful protest against the shortage of food and medicine and the increasing repression in Cuba. During this protest, Mr. Pérez was filmed breaking a picture of Fidel Castro Ruz, alongside other individuals, and openly criticised a police officer for his violent manners. On 16 July 2021, he was arrested at his relative’s home by uniformed police officers and unidentified individuals without a judicial warrant or explanation of his rights.

Mr. Pérez was taken to the municipal police unit in San José de las Lajas and later transferred to the maximum-security prison in Quivicán. During his detention, he was denied access to legal counsel for 14 days, subjected to coercive interrogations, and experienced degrading treatment, including being kept in a dark cell with foul odor and stagnant water. His trial was marked by irregularities, and on 6 October 2021, he was convicted for various the crimes of contempt, attack, public disorder, and instigation to commit a crime, and consequently sentenced to 10 years in prison by the Criminal Section of the Municipal and Popular Court of San José de las Lajas.

The Government of Cuba was given the opportunity to answer these allegations, which it did but past the deadline provided by the Working Group.

ARRESTED WITHOUT AN ARREST WARRANT AND DETAINED WITHOUT THE POSSIBILITY TO LEGALLY CHALLENGE HIS DETENTION

First, the source claimed that Mr. Pérez was not presented with an arrest warrant upon his arrest, nor was he informed of the reasons for his arrest. Considering the Government's response insufficient, the Working Group found a violation of articles 3 and 9 of the Universal Declaration of Human Rights, which guarantee the right to liberty and security of person and the right not to be subejcted to arbitrary arrest and detention.

Furthermore, the source argued that Mr. Pérez was detained incommunicado from 16 July to 30 July 2021, which the Government denied saying he received a visit of his family on 22 July 2021. No matter his incommunicado detention lasted one week or two, the Working Group found that this situation had violated Mr. Pérez's rights to be recognised as a person before the law under article 6 of the Universal Declaration of Human Rights. Besides, Mr. Pérez was only presented before a judicial authority on 28 September 2021, that is to say approximately 2 months after his arrest. Considering this, the Working Group considered that Mr. Pérez was denied the right to challenge the legality of his detention, enshrined in article 8 and 9 of the Universal Declaration of Human Rights.

Taking all the above into account, the Working Group concluded that the arrest and subsequent detention of Mr. Pérez were arbitrary due to the lack of legal basis, in accordance with category I.

VIOLATION OF HIS RIGHTS TO FREEDOM OF EXPRESSION, ASSOCIATION AND PEACEFUL ASSEMBLY

According to the source, Mr. Pérez’s detention resulted from his participation in a protest on 11 July 2021, thus from the peaceful exercise of his rights to freedom of opinion and expression, to peaceful assembly and association. In its late response, the Government claimed that Mr. Pérez's arrest and detention were due to his involvement in violent and vandalistic acts during the protest. Yet, the Working Group observed the fact that Mr. Pérez had only shout at a police officer who was being violent towards another protester, and that there was no element proving the alleged violent behaviours of Mr. Pérez during the protest.

Considering this simple fact insufficient to establish an alleged violent behaviours during the protest which would have justified his arrest, the Working Group concluded that Mr. Pérez’s arrest and detention were indeed due to the peaceful exercise of his rights to freedom of assembly, association, and expression, in violation of articles 19 and 20 of the Universal Declaration of Human Rights.

Given these circumstances, the Working Group decided to refer the case to the Special Rapporteurs on the promotion and protection of the right to freedom of opinion and expression, and on the rights to freedom of peaceful assembly and association.

In this light, the Working Group considered the detention of Mr. Pérez arbitrary under Category II.

UNJUSTIFIED PRE-TRIAL DETENTION, NO PROPER ACCESS TO LEGAL ASSISTANCE AND ALLEGATIONS OF TORTURE

Mr. Pérez was held in pre-trial detention for approximately 80 days, from his arrest on 16 July 2021, until his trial and sentencing on 6 October 2021. The source argued that pre-trial detention was the most severe measure that could be imposed during the preparatory phase of the trial and was disproportionate given Mr. Pérez’s stable family ties, recognised residence, and lack of any indication that he would evade justice. The Government, in its late response, stated that the pre-trial detention was proportional to the seriousness of the alleged criminal acts against public order.

In this regard, the Working Group noted that pre-trial detention should be the exception rather than the rule and should be ordered for the shortest possible period. It must be based on an individualised determination that it is reasonable and necessary to prevent risks such as flight, evidence tampering, or reoffending. Courts must consider alternatives to pre-trial detention, such as bail. In this case, not only the Working Group found that the Government did not explain what specific circumstances justified Mr. Pérez’s pre-trial detention, but it also deemed as excessive the period of Mr. Pérez's pre-trial detention. As such, the Working Group found a violation of article 10 of the Universal Declaration of Human Rights.

On another side, during his pre-trial detention, Mr. Pérez was reportedly subjected to psychological control, coercion, degrading treatment, frequent physical mistreatment, and isolation. In this regard, the Working Group decided to refer this case to the Special Rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment.

On the day of the hearing, Mr. Pérez was brought to court as if he were an extremely violent criminal, shackled hand and foot, amid a large security operation with armed and uniformed officers and canine units. If the Government’s late response did not address this allegation, the Working Group emphasised the duty of public authorities to refrain from actions that prejudge the outcome of proceedings and influence the perception of the accused’s guilt, violating the universal right to the presumption of innocence.

Moreover, the Working Group found that Mr. Pérez’s right to legal assistance, enshrined in article 10 and 11 (1) of the Universal Declaration of Human Rights, was violated as he did not have access to a lawyer immediately after his detention but only one or two weeks later. Besides, his interactions with his lawyer were infrequent, with a second meeting occurring 22 on September 2021, more than two months after his arrest. This lack of prompt and continuous legal assistance thus impeded his ability to prepare an adequate defence.

Eventually, the Working Group concluded that both the above-mentioned findings and the way in which Mr. Pérez’s trial was conducted, including the failure to consider witness testimonies presented by his defence, demonstrated a clear violation of his right to a fair and impartial trial, as established in articles 9, 10, and 11 of the Universal Declaration of Human Rights.

Therefore, the Working Group established that the violations of Mr. Pérez's rights to fair trial and due process had been of such gravity as to render his 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 Roberto Pérez Fonseca was arbitrary and fell under caategories I, II, and III, as it contravened articles 1, 3, 6, 8, 9, 10, 11, 19 and 20 of the universal Declaration of Human Rights.

The Working Group urged the Government of Cuba to investigate the circumstances of the violations of his rights and take appropriate measures against those responsible for them. The Working Group considered that, taking into account all the circumstances of the case, the appropriate remedy would be to release him immediately and accord him an enforceable right to compensation and other reparations, in accordance with international law. The Working Group also expressed its concern about the alleged numerous cases of arbitrary detentions in Cuba.

Additionally, the Working Group emphasised the need for legislative and practical reforms in Cuba to align with its international obligations under the Universal Declaration of Human Rights and other relevant human rights instruments.