Company Registration: 01606776

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AMNESTY INTERNATIONALS PRESENTATION TO THE
INTERNATIONAL COMMISSION OF INQUIRY INTO THE CASE OF
THE CUBAN FIVE, 8 MARCH 2014
BY ANGELA WRIGHT
AmnesLy lnLernaLlonal ls a global movemenL of more Lhan 3 mllllon supporLers, acLlvlsLs and
volunLeers ln more Lhan 130 counLrles who campalgn Lo end grave abuses of human rlghLs. Cur
vlslon ls for every person Lo en[oy all Lhe rlghLs enshrlned ln Lhe unlversal ueclaraLlon of Puman
8lghLs and oLher lnLernaLlonal human rlghLs sLandards and LreaLles. We are lndependenL of any
governmenL, pollLlcal ldeology, economlc lnLeresL or rellglon - funded malnly by our membershlp
and publlc donaLlons.
Cne parL of our remlL has been Lo campalgn for a falr reLrlal or oLher remedy where lndlvlduals ln
pollLlcal cases are denled a falr Lrlal. AmnesLy ls noL a general crlmlnal [usLlce organlzaLlon and we
only become lnvolved ln a crlmlnal case lf lL appears LhaL Lhere ls a pollLlcal elemenL Lo Lhe case, or
someone ls faclng Lhe deaLh penalLy. CfLen our concerns lnvolve cases where Lhere ls a blaLanL
flouLlng of falr Lrlal norms Lhrough for example seLLlng up summary courLs, holdlng Lhe accused
lncommunlcado or resLrlcLlng rlghL Lo counsel.
Cf course, cases are noL always LhaL sLralghLforward. lL can be parLlcularly challenglng when Lhe Lrlal
ln quesLlon broadly follows lnLernaLlonal norms of crlmlnal procedure and Lhe charges Lhemselves
are noL overLly pollLlcal or do noL flouL lnLernaLlonally proLecLed rlghLs such as freedom of peaceful
assembly or assoclaLlon, or Lhe rlghL Lo freedom of expresslon. We would conslder anyone
lmprlsoned on Lhe laLLer grounds Lo be prlsoners of consclence, regardless of Lhe procedures used ln
Lhe Lrlal.
ln Lhls case Lhe defendanLs were charged wlLh whaL were on Lhelr face serlous offences, lncludlng
consplracy Lo gaLher and LransmlL naLlonal defence lnformaLlon. 1hey were broughL Lo Lrlal ln Lhe
ordlnary uS crlmlnal [usLlce sysLem provldlng Lhe usual falr Lrlal norms such as rlghL Lo counsel, Lrlal
before a [ury and rlghL of appeal. 1hus lL was necessary for us Lo scruLlnlze Lhe case wlLh greaL care
and lmparLlallLy - looklng aL boLh sldes and, ln parLlcular, seelng how Lhe case developed on appeal,
Lhe appeal process lLself belng an lnLegral parL of Lhe rlghL Lo falr Lrlal.
AfLer Lhls revlew and Laklng lnLo accounL all Lhe clrcumsLances of Lhls complex case, we concluded
LhaL Lhere were serlous concerns abouL Lhe falrness of Lhe convlcLlons. 1hese concerns are ouLllned
ln Al's reporL publlshed ln 2010, and remaln unresolved Lo daLe.
8efore our reporL was publlshed, Al had already for some years campalgned abouL Lhe LreaLmenL of
Lhe defendanLs ln cusLody, lncludlng denlal of vlsas for Lhe Cuban wlves of Lwo of Lhe defendanLs
(8ene Conzales and Cerardo Pernandez) Lo vlslL Lhem ln prlson, and unnecessary delays ln
faclllLaLlng vlslLs by relaLlves ln some of Lhe oLher cases: resLrlcLlons we found Lo be unnecessarlly
punlLlve and conLrary Lo sLandards for Lhe humane LreaLmenL of prlsoners and sLaLes' obllgaLlon Lo
proLecL famlly llfe. We also appealed agalnsL Lhe men belng placed ln sollLary conflnemenL ln prlson
ln 2003 [check] and belleve our appeals may have conLrlbuLed Lo Lhelr removal from lsolaLlon aL LhaL
polnL. Powever, on Lhls panel l wlll focus only on our concerns abouL Lhe crlmlnal proceedlngs.
2
A cenLral underlylng concern relaLes Lo Lhe falrness of holdlng Lhe Lrlal ln Mlaml, glven Lhe pervaslve
communlLy hosLlllLy Lo Lhe Cuban governmenL ln Lhe area and oLher evenLs whlch Look place before
and durlng Lhe Lrlal. 1here ls evldence Lo suggesL LhaL Lhese facLors made lL lmposslble Lo ensure a
wholly lmparLlal [ury desplLe Lhe efforLs of Lhe Lrlal [udge ln Lhls regard.
1he rlghL Lo Lrlal by an lndependenL, lmparLlal and compeLenL Lrlbunal ls guaranLeed under ArLlcle 10
of Lhe uuP8 and ArLlcle 14 of Lhe lCC8, a key human rlghLs LreaLy Lo whlch Lhe uS ls a SLaLe arLy.
1he un Puman 8lghLs CommlLLee (Lhe LreaLy monlLorlng body) has emphaslzed LhaL Lhe
requlremenLs of compeLency, lndependence and lmparLlallLy of a Lrlbunal - whlch lncludes all lLs
componenLs lncludlng Lhe [ury where Lhere ls one - ls an absoluLe rlghL LhaL ls noL sub[ecL Lo any
excepLlon.
lL ls also a fundamenLal prlnclple under lnLernaLlonal law LhaL a Lrlal musL noL only be falr buL musL
be seen Lo be falr. 1hls ls a cruclal elemenL of publlc Lransparency and accounLablllLy, Lo ensure,
among oLher Lhlngs, LhaL no lnfluences are broughL lnLo play of whlch a defendanL may be unaware
and whlch may lmpede a proper defence.
1he Lrlal venue was Lhe flrsL lssue LhaL wenL Lo appeal as lL underplnned Lhe whole quesLlon of Lhe
falrness of Lhe Lrlal. lL ls slgnlflcanL LhaL Lhe 3-[udge panel of Lhe 11
Lh
ClrculL federal courL of appeals
- a generally conservaLlve clrculL - were unanlmous ln rullng ln AugusL 2003 LhaL Lhe defendanLs
were denled a falr Lrlal, overLurnlng Lhe convlcLlons and orderlng a new Lrlal ouLslde of Mlaml.
1he panel's declslon was based on Lhe comblned lmpacL of pervaslve communlLy pre[udlce, evenLs
and publlclLy before and durlng Lhe Lrlal, and lmproper sLaLemenLs by Lhe prosecuLlon whlch lnflaLed
Lhe harm lnfllcLed or LhreaLened by Lhe defendanLs. ln one of Lhe mosL exLenslve rullngs ln Lhe case
Lo daLe, Lhe panel found Lhe evldence submlLLed ln supporL of Lhe moLlon for a change of venue Lo
be (quoLe) masslve". 1hls lncluded evldence of polls showlng Lhe decades of anLl-CasLro feellng ln
Lhe Mlaml-uade area whlch exLended beyond Lhe Cuban Amerlcan communlLy and whlch Lhe [udges
found made ensurlng an lmparLlal [ury from any [ury pool ln Lhe area an unreasonable probablllLy".
1he panel furLher noLed Lhe lmpacL of evenLs such as Lhe anLl-Cuban demonsLraLlons around Lhe
Lllan Conzalez case ln Lhe monLhs leadlng Lo Lhe Lrlal as well as evenLs durlng Lhe Lrlal lLself, lncludlng
ceremonles Lo commemoraLe Lhe vlcLlms of Lhe shooLlng down of Lhe 8roLhers Lo Lhe 8escue plane
who had close Lles Lo Lhe area.
uurlng Lhe seven monLh Lrlal, Lhe [urors were noL sequesLered buL wenL home every nlghL. Whlle
Lhey were lnsLrucLed by Lhe [udge noL Lo read or waLch news abouL Lhe case, as Lhe 11
Lh
ClrculL panel
noLed, lL ls hard Lo see how Lhey would be compleLely lnsulaLed from Lhe negaLlve aLmosphere
surroundlng Lhe defendanLs and Lhelr Lles Lo Lhe Cuban governmenL. 1he panel also consldered
pre[udlclal sLaLemenLs by Lhe prosecuLlon, whlch lncluded lnflammaLory and unsupporLed
sLaLemenLs such as LhaL Lhe defendanLs were benL on desLroylng Lhe unlLed SLaLes". AlLhough Lhe
Lrlal [udge susLalned Lhe defence's ob[ecLlons Lo Lhese and oLher lmproper sLaLemenLs, Lhere were
no speclflc lnsLrucLlons ln her summlng up LhaL Lhey musL exclude such sLaLemenLs from Lhelr
dellberaLlons. 1he panel agreed wlLh defence submlsslons LhaL Lhls Loo may have led Lo undue
pressure on [urors Lo convlcL.
Powever, Lhe governmenL appealed and ln 2006 Lhe panel's rullng was overLurned by Lhe full 12
member CourL of Appeals, albelL by a 10-2 ma[orlLy and wlLh a sLrong dlssenLlng oplnlon. 1he
convlcLlons were Lhus lefL ln place, and no reLrlal was ordered.
Whlle lL ls lmposslble Lo know for cerLaln Lhe exLenL Lo whlch Lhe [urors were acLually pre[udlced
agalnsL Lhe defendanLs, Lhere remaln ln AmnesLy's vlew grave doubLs abouL Lhe lmparLlallLy of Lhe
Lrlbunal before whlch Lhe defendanLs were Lrled and convlcLed. ln re[ecLlng Lhe appeal, Lhe ma[orlLy
3
declslon of Lhe 11
Lh
ClrculL CourL applled a narrower sLandard of revlew Lhan Lhe panel, largely
dlsregardlng evenLs LhaL Look place ouLslde Lhe courL-room.
We belleve LhaL Lhe broader approach Laken by Lhe panel was Lhe rlghL one, glven all Lhe
clrcumsLances surroundlng Lhls hlghly charged case and Lhe absoluLe obllgaLlon on governmenLs Lo
do everyLhlng Lo ensure LhaL a Lrlal ls boLh falr and seen Lo be falr.
ln conslderlng Lhe opLlons open Lo Lhe governmenL Lo ensure a falr Lrlal, lL ls relevanL LhaL an
alLernaLlve venue was readlly avallable, and LhaL Lhe Lrlal could have been moved Lo lorL Lauderdale
[usL 24 mlles away - as counsel for Lhe defendanLs requesLed. 1hls ls exacLly whaL Lhe uS
CovernmenL lLself soughL ln anoLher case, ln whlch lL soughL a change of venue ln an acLlon broughL
agalnsL lL ln connecLlon wlLh Lhe Lllan Conzales case. ln Lhls case (8amlrez v AshcrofL, 2003) Lhe
governmenL sald lL would be vlrLually lmposslble Lo ensure LhaL Lhe defendanLs wlll recelve a falr
Lrlal lf Lhe Lrlal ls held ln Mlaml-uade CounLy". lL submlLLed LhaL a move Lo lorL L would be sufflclenL
on Lhe ground LhaL as you move Lhe case ouL of Mlaml-u you have less llkellhood Lhere are golng Lo
be deep seaLed . pre[udlces ln Lhe case".
Slnce Lhen, of course, new evldence has emerged LhaL casLs even more doubL abouL Lhe falrness of
Lhe Lrlal, wlLh lnformaLlon suggesLlng LhaL Lhe uS sysLemaLlcally pald [ournallsLs hosLlle Lo Cuba Lo
cover Lhe Lrlal and provlde pre[udlclal arLlcles ln Lhe local medla asserLlng Lhe gullL of Lhe accused.
Whlle Lhls ls Lhe sub[ecL of new appeals no remedy has yeL been granLed, desplLe lL belng well over a
decade slnce Lhe convlcLlons.
AmnesLy ls noL Lhe only human rlghLs organlzaLlon Lo ralse concern abouL Lhls case. ln May 2003, Lhe
un Worklng Croup on ArblLrary ueLenLlon adopLed an oplnlon on Lhe case ln whlch lL concluded LhaL
Lhe uSC had falled Lo guaranLee Lhe Cuban llve a falr Lrlal under ArLlcle 14 of Lhe lCC8. lL clLed Lwo
concerns: Lhe lmparLlallLy of Lhe Lrlal venue and Lhe prlnclple of equallLy of arms", anoLher
fundamenLal falr Lrlal requlremenL. 1hls means LhaL Lhe same procedural and oLher rlghLs musL be
afforded Lo boLh Lhe defence and prosecuLlon ln equal measure. 1he Worklng Croup clLed Lhe
clrcumsLances under whlch Lhe defendanLs were held ln lsolaLlon durlng much of Lhelr pre-Lrlal
deLenLlon and Lhe alleged dlfflculLles Lhelr aLLorneys had ln accesslng lnformaLlon, much of whlch
was lnlLlally classlfled.
Al shares Lhe concern of Lhe Worklng Croup LhaL Lhelr condlLlons of pre-Lrlal deLenLlon undermlned
Lhe prlnclple of equallLy of arms and Lhe rlghL of every defendanL Lo have adequaLe faclllLles for Lhe
preparaLlon of Lhelr defence. AlLhough Lhe governmenL ulLlmaLely declasslfled Lhe maLerlals Lhe
defence requesLed and no classlfled lnformaLlon was lnLroduced as evldence aL Lrlal, Lhe laLe Leonard
Welnglass, a hlghly respecLed defence aLLorney, Lold me LhaL no-one was confldenL Lhey had
everyLhlng Lhey needed". 1he new evldence LhaL has emerged slnce Lhe Lrlal - of [ournallsLs belng
pald Lo planL pre[udlclal sLorles agalnsL Lhe accused durlng Lhe Lrlal - also ralses concern abouL
equallLy of arms ln LhaL Lhe governmenL, unknown Lo Lhe defendanLs, were sLacklng Lhe case ln Lhe
medla - and also as we have seen very posslbly ln Lhe courL-room lLself - ln Lhe prosecuLlon's favour.
l wlll [usL brlefly say a few words abouL Lhe case of Cerardo Pernndez, Lhe only one of Lhe accused
Lo be servlng llfe ln prlson. Pe was convlcLed of Lwo llfe Lerms, one for consplracy Lo LransmlL
naLlonal defence lnformaLlon and Lhe second for consplracy Lo murder. 1he laLLer was based on hls
alleged role ln Lhe 1996 shooLlng down by Cuba of Lwo planes flown by members of Lhe 8roLhers Lo
Lhe 8escue organlzaLlon on a mlsslon Lo drop anLl-governmenL leafleLs over Cuba, charges he
sLrenuously denles.
ln assesslng Lhe falrness of [udlclal proceedlngs, AmnesLy lnLernaLlonal does noL purporL Lo be a Lrler
of facL or Lo subsLlLuLe lLs own verdlcL of gullL or lnnocence for LhaL of a properly consLlLuLed courL.
4
Powever, as we noLe ln our reporL, Lhere was no dlrecL evldence agalnsL Pernndez of plannlng or
knowlng abouL an lnLended shooL-down of Lhe alrcrafL (wheLher ln lnLernaLlonal or Cuban alrspace)
and Lhe evldence lnLroduced by Lhe prosecuLlon aL Lrlal conslsLed of noLhlng more Lhan a few
lnLercepLed messages LhaL were amblguous aL besL. We belleve Lhere are serlous quesLlons as Lo
wheLher Lhe governmenL dlscharged lLs burden of proof ln Lhls case or, glven oLher pre[udlclal
facLors, wheLher Pernndez was afforded Lhe full rlghL of presumpLlon of lnnocence, anoLher
fundamenLal pre-requlslLe for a falr Lrlal.
We are also concerned LhaL Cerardo Pernndez remalns senLenced Lo Lwo llfe Lerms, desplLe an
appeals courL acknowledglng LhaL Lhe llfe senLence lmposed for consplracy Lo LransmlL naLlonal
defence lnformaLlon was over-lnflaLed, as no Lop secreL lnformaLlon had ln facL been gaLhered or
LransmlLLed. Cn Lhls ground an appeals courL vacaLed Lhe llfe senLences lmposed on hls co-
defendanLs 8amn Labanlno and AnLonlo Cuerrero (reduclng Lhose senLences Lo long prlson Lerms
lnsLead). 1he appeals courL decllned Lo reduce CP llfe senLence on Lhe ground LhaL Lhls would make
no dlfference as he was already servlng anoLher llfe senLence. 1haL he should be servlng Lwo llfe
senLences when one ls acknowledged by Lhe courLs Lo have been wrongly lmposed, ls a manlfesL
ln[usLlce.
1hls case has been marked LhroughouL by dlvlded oplnlons of successlve appeals courLs - noL only on
Lhe Lrlal venue buL on Lhe shooL-down charges as well. We belleve lL ls slgnlflcanL LhaL senlor
members of Lhe uS [udlclary have ln almosL every appeal Lo daLe expressed serlous doubL abouL Lhe
falrness of Lhe case. 1hls makes lL even more dlsLurblng LhaL Lhe uS Supreme CourL decllned Lo
revlew Lhe case ln 2009, wlLhouL glvlng an oplnlon.
When AmnesLy lnLernaLlonal senL lLs reporL Lo Lhe uSC, lL urged lL Lo revlew Lhe case and address Lhe
concerns ralsed, noLlng as well Lhe lengLhy senLences belng served by Lhe accused. We framed our
requesL ln broad Lerms as Lhere were a number of opLlons open Lo Lhe governmenL Lhrough Lhe
clemency process, as well as pendlng legal appeals.
Meanwhlle, anoLher Lhree and a half years have passed and Lhe currenL appeals may sLlll Lake some
Llme Lo work Lhelr way Lhrough Lhe courLs wlLh no guaranLee LhaL [usLlce wlll be served. 1wo of Lhe
flve have now been released afLer servlng Lhelr full senLence. CLhers remaln ln prlson, posslbly for
llfe ln CP case.
We are aware of Lhe urgency of Lhls case afLer so many years wlLhouL a remedy, and wlll conLlnue Lo
appeal for [usLlce Lo be expedlLed Lhrough all approprlaLe means. We look forward Lo conLlnulng
dlscusslons wlLh Lhose lnvolved as Lo how Lhls can be done.