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ILAAD

CUBA: ARBITRARY DETENTION OF THE PASTOR AND PROTESTOR LORENZO ROSALES FAJARDO

The International League Against Arbitrary Detention urges the Government of Cuba to take all necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 73/2023 concerning Lorenzo Rosales Fajardo. The Working Group called for his immediate and unconditional release and for the Cuban Government to provide him with an enforceable right to compensation and other reparations, in accordance with international law.


Read the full WGAD Opinion concerning Lorenzo Rosales Fajardo (Cuba): Opinion No. 73/2023.


A PASTOR AND HIS SON ARRESTED WHILE PARTICIPATING IN A PROTEST


Lorenzo Rosales Fajardo is a national of Cuba, born in 1971. He is a pastor of the Church Monte de Sion in Palma Soriano, and leads an unregistered religious group composed of the persons attending his mass - from 80 to 100 persons. The source emphasised that such groups were considered illegal, and thus vulnerable to human rights violations in Cuba.


On 11 July 2021 and during its following days, thousands of citizens took the streets in different parts of Cuba to protest against the economic crisis in the country, the poor handling of the Government of the Covid-19 crisis, and its increasing repression on democracy and human-rights.


In this context, Mr. Rosales Fajardo and his 17 years-old son joined the peaceful protest in the city of Palma Soriano, where they lived. After the police and military tried to block the protestors, both were violently arrested on Martí street by agents of the National Revolutionary Police and by members of the "Black Berets" group.


After three days of detention in an unknown location, on 14 July 2021, Mr. Rosales Fajardo was violently transferred to the state security facility of the Ministry of the Interior of Cuba, in Versalles (Santiago de Cuba). While his son was released a few days after his arrest, on 17 July 2021, it was decided that Mr. Rosales Fajardo would remain in pre-trial detention for accusations of assault, public disorder, resistance and damages were held against him.


On 7 August 2021, he was transferred to the maximum security prison of Boniato, where he was assaulted upon arrival - alongside other men. On 20 and 21 December 2021, Mr. Rosales Fajardo was convicted on the basis of several provisions of the Penal Code, namely: for incitement to commit a crime (art. 202); public disorder (art. 200); contempt (art. 144); and assault (art. 142). As such, he was sentenced to 8 years in prison, which was confirmed in appeal in June 2022.


The Government of Cuba was given the opportunity to answer these allegations, which it did on 18 September 2023.


NOT PRESENTED WITH AN ARREST WARRANT, SUBJECTED TO PRE-TRIAL AND INCOMMUNICADO DETENTIONS


According to the source, Mr. Rosales Fajardo was not presented with an arrest warrant at the time of his arrest. The Government did not directly denied this, but explained that his arrest was due to his violent actions during the protest in Palma Soriano on 11 July 2021 - his behaviour at the time also being contrary to the restrictions measures imposed due to Covid-19 - and that his family had been immediately informed of his arrest.


The Working Group considered the Government's response inadequate, as it did not negate nor justify the lack of arrest warrant, and noted that the photos and videos presented by the source only showed the violent actions taken by armed-forces during the protest, not the alleged one of Mr. Rosales Fajardo. In this light, the Working Group considered his rights to liberty and security of person and not to be arbitrarily detained, enshrined in articles 3 and 9 of the Universal Declaration of Human Rights, had thus been violated.


The source also argued that during the first 3 days following his arrest, Mr. Rosales Fajardo - as well as his son - was detained in a secret location; that he was only allowed to see his family in October 2021, thus 3-4 months after his arrest; and that he had no access to his lawyers during the first weeks of his detention, which included during his first hearing. The Government denied this, arguing that the family of Mr. Rosales Fajardo was informed of his location within 24 hours of his arrest, as legally requested; that the only reason the visits of his family were restricted at first was due to Covid-19, but that it changed since the end of the pandemic; and that he had access to a lawyer from 30 July 2021 onwards, though with a restricted at first access due to Covid-19.


The Working Group noted that the Government's version was not backed up with evidence, and that in the case this version was true, it still meant that Mr. Rosales Fajardo had spend 20 days without access to a lawyer following his arrest. In light of the two different versions presented by the source and the Government, the Working Group considered Mr. Rosales Fajardo had indeed spend the first month following his arrest in incommunicado detention, in a facility of the Cuban secret police - before being transferred to a maxium security prison. Besides, it emphasised that Mr. Rosales Fajardo and his lawyer's 7 demands to an habbeas corpus were all denied. As such, the Working Group considered that Mr. Rosales Fajardo's right to contact the exterior world was violated, which goes against well-established international norms, including notably the rule 58 of the Nelson Mandela Rules and the principles 15 and 19 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. The Working Group also considered his right to be recognised as a person before the law, as guaranteed by article 6 of the Universal Declaration of Human Rights, had been violated.


Eventually, the source argued that Mr. Rosales Fajardo was held in pre-trial detention for several months, namely from his arrest on 11 July 2021 until his trial which started on 20 December 2021, without proper justification. The Government answered to this allegation saying that, based on their laws, the alleged violence of Mr. Rosales Fajardo had justified his pre-trial detention. Considering the above, the Working Group found that the exceptional character of pre-trial detention, and the fact it should last only for the shortest time possible, had not been respected in this case. Finding the length of Mr. Rosales Fajardo's pre-trial detention excessive, the Working Group thus found a violation of articles 3 and 9 of the Universal Declaration of Human Rights.


In light of the above, the Working Group thus found that Mr. Rosales Fajardo's arrest and detention lacked a legal basis, rendering it arbitrary under category 1.


DETAINED FOR HAVING EXERCISED SEVERAL OF HIS FUNDAMENTAL FREEDOMS


According to the source, Mr. Rosales Fajardo was detained due to the repression by armed-forces of the protest in Palma Soriano of 11 July 2021 during which the Government was being criticised. The Government denied this, arguing Mr. Rosales Fajardo was only arrested for his acts of violence during the protest.


The Working Group recalled that the photos and videos presented by the source clearly showed that the said protest was peaceful on the side of the protestors, while it was violent on the side of the armed-forces - and thus noted that this was contradicting the Government's version. Considering this, the Working Group found that the detention of Mr. Rosales Fajardo was due to the legitimate exercise of his rights to freedom of association and peaceful assembly, to freedom of opinion and expression, and to freedom of religion, in violation of articles 18, 19 and 20 of the Universal Declaration of Human Rights.


Thence, the Working Group found the detention of Mr. Rosales Fajardo arbitrary under category II.


DENIAL OF THE PRINCIPLE OF EQUALITY OF ARMS AND MISTREATMENTS POSSIBLY AMOUNTING TO TORTURE


The decision to put Mr. Rosales Fajardo in pre-trial detention was initially taken by the Prosecutor, based on the police's request. It was later confirmed by the judge of the Popular Provincial Tribunal of Santiago de Cuba. In this regard, the Working Group found that this decision was thus not initially adopted by the competent authority, as there was no separation between the investigative authority charged of the case and the authority deciding the condition of detention of Mr. Rosales Fajardo - which is essential to guarantee impartial legal proceedings against him. Moreover, the source emphasised that during the trial, while the Prosecutor was able to use the testimonies of at least 12 policemen, the defence was prevented from presenting its own testimonies. The Government did not deny this. Lastly, Mr. Rosales Fajardo was denied access to legal representation during the first weeks of his detention.


Therefore, for all the reasons above-mentioned, the Working Group considered Mr. Rosales Fajardo's right to defend himself as established by the equality of arms principle, and as guaranteed by articles 10 and 11 of the Universal Declaration of Human Rights, had been violated.

In addition, the source explained that Mr. Rosales Fajardo was mistreated and subjected to degrading treatments at several occasions during his detention, both at the facility of the Cuban secret police and at the maximum security prison of Boniato. Notably, he was beaten to the point of loosing a teeth, peed on by a security guard, and he even witnessed sexual assaults on other detainees. These allegations were denied by the Government, which argued a doctor had examined him and did not find proof of such mistreatments. Besides, the source further stated Mr. Rosales Fajardo was threatened to be put in isolation after having asked to attend religious activities.


Considering the seriousness of the allegations of the source, the Working Group first and foremost referred the case to the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. The Working Group also expressed concerns regarding the possible violations of Mr. Rosales Fajardo's rights not to be subjected to torture and other ill-treatments and to an adequate standard of living, guaranteed by articles 5 and 25 (1) of the Universal Declaration of Human Rights. Eventually, the Working Group considered that such mistreatments had undermined his capacity to defend himself, in breach of articles 10 and 11 of the Universal Declaration of Human Rights.


Consequently, the Working Group concluded that the breaches of Mr. Rosales Fajardo's right to fair trial were of such gravity that it rendered his deprivation of liberty arbitrary under category III. 


DISCRIMINATED ON THE BASIS OF HIS POLITICAL AND RELIGIOUS OPINIONS


In light of the above-described facts, the Working Group considered that the arrest, detention and sentence of Mr. Rosales Fajardo resulted from an act of repression of the Government against him. Specifically, the Government tried to silence and punish him for having shared his opinions - through his participation to the protest on 11 July 2021.


As such, the Working Group found that his deprivation of liberty was made on a discriminatory basis, namely based on his political, religious and other opinions. This violated his rights not to be discriminated and to equality before the law, enshrined in articles 2 and 7 of the Universal Declaration of Human Rights.


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 Lorenzo Rosales Fajardo was arbitrary and fell under categories I, II, III, and V, as it contravened articles 2, 6, 7, 9, 10, 11, 18, 19, and 20 of the Universal Declaration of Human Rights.


The Working Group recommended that the Government of Cuba take the necessary steps to remedy the situation of Lorenzo Rosales Fajardo without delay and bring it into conformity with the relevant international norms. The Working Group also urged the Cuban Government to conduct a thorough investigation into the circumstances of these violations and to take appropriate measures against those responsible.


The Working Group considered that, taking into account all 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.



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