Freedom of Expression
5 - Chapter IV - Evaluation of the Situation of Freedom of Expression in the Hemisphere (continued)
2. Countries without freedom of expression
a. Cuba
1. Cuba denies its citizens’ rights to freedom of expression and access to information. The legal system places countless restrictions on the ability to disseminate and receive information. Moreover, tactics of intimidation and repression are used to put further pressure on journalists and dissidents to prevent them from criticizing the government.
a. Legal Framework for Freedom of Expression
2. The right to freedom of expression is guaranteed in the Cuban Constitution only insofar as its exercise “conforms with the purposes of a socialist society.”[1] Article 62 declares it a punishable offense to exercise any of the constitutional freedoms in a manner that is “contrary to that which is established in the Constitution and the laws, or contrary to the existence and aims of the socialist State, or contrary to the Cuban people’s decision to build socialism and communism.”
3. Any obstacle to the free discussion of ideas and opinions restricts freedom of expression. Prior conditioning of expression, such as truthfulness, timeliness or impartiality, among other conditions, is incompatible with the rights provided for in international instruments. The Special Rapporteur believes that the prohibition of speech that does not conform with the purpose of a socialist society is a form of prior conditioning.
4. The Constitution further limits freedom of expression by establishing control over communications media. Article 15 of the Constitution states that the means of communication are the property of the state and may not be privately owned. Article 53 indicates that the purpose of this restriction is to ensure that the press, radio, television, cinema and other means of communication can only be used for the benefit of “the working people and in the interest of society.” The Special Rapporteur believes that the imposition of legal mechanisms to exercise control over the media and other social communicators has a negative effect on the respect for and protection of freedom of expression. Such impositions deny individuals their fundamental right to participate fully in social, political, economic and cultural life.
5. The government uses this provision on ownership and control to censor the official media and prevent them from reporting any information considered disadvantageous to government interests.[2] On this point, the Declaration of Principles on Freedom of Expression emphasizes:
Monopolies or oligopolies in the ownership and control of the communication media must be subject to anti-trust laws, as they conspire against democracy by limiting the pluralistic and diversity which ensures the full exercise of people’s right to information. The concession of radio and television broadcast frequencies should take into account democratic criteria that provide equal opportunity of access for all individuals.[3]
6. This principle applies to state controlled as well as privately controlled monopolies.
7. In addition to the provisions of the Constitution, numerous sections of the Penal Code are used to suppress journalists and others who speak out against the government. Many of the offenses, which subject the accused to prison terms, are vaguely defined so as to apply to a wide range of speech. Such offenses include: “desacato,” or disrespect;[4] sedition;[5] “enemy propaganda”;[6] “acts against the security of the state”;[7] “resistance”;[8] “public disorder”;[9] “instigation to commit a crime”;[10] “damages”;[11] “spreading of unauthorized news”; “insulting of patriotic symbols”;[12] “illicit association”;[13] and “dangerousness.”[14]
8. In February of 1999, the “Law on Protection of the National Independence and Economy,” was passed. Now widely known as “Law 88,” this law allows the government to control information that is disseminated within its borders. Law 88 makes it a crime to impart, search for or obtain subversive information or to bring subversive materials into the country, reproduce them or circulate them. It also criminalizes collaboration—either direct or through third parties—with radio transmitters, newspapers, magazines or other mass communications media for the purpose of disseminating subversive materials. This law establishes penalties of up to 20 years imprisonment, confiscation of personal belongings and large fines for the authors of these acts and their accomplices.
b. Institutional Framework of Media
9. The official media in Cuba consists of the daily newspapers Granma and Juventud Rebelde, the weekly Trabajadores, the magazine Bohemia, a number of national and regional radio stations and two television stations. According to a recent report by Reporters Without Borders, a French-based non-governmental organization devoted to press freedom, these media “publish or broadcast articles and reports chosen, reviewed and amended to suite [sic] the government’s ideological interests.”[15] They “devote a large part of their meagre columns or limited broadcasting time (six hours per channel per day during the week and fifteen hours per day over week-ends) to speeches made by Fidel Castro and official propaganda.”[16]
10. Independent media, which operate outside the scope of the Cuban Constitution, are growing despite the fact that they are subject to constant government harassment and lack of funding. Reporters Without Borders noted in a 2000 report that there are 18 independent news agencies in Cuba, four of which operate in the provinces. There are over one hundred independent journalists, most of whom are affiliated with one of these agencies, an increase in the past decade. Independent journalists attempt to transmit news to foreign radio, print and Internet sources by telephone or fax. According to the information received, the government tries to deprive independent journalists of phone lines and frequently taps the phone lines—their own or those of friends and family members—that they use to transmit information.
11. There is also an independent library movement, which offers the public access to books that have been banned by the government. Several independent libraries have been established in Cuba since 1998, when the first such library, the Biblioteca “Félix Varela” was established. Independent libraries are subjected to the same types of harassment as the independent media, including searches, confiscation, and arrests and detentions of librarians.[17]
12. The government also restricts the flow of information to and from the country. It attempts to jam foreign radio transmissions. Many Cubans rely on short-wave radios as their primary source of information about the outside world.
13. Access to the Internet is limited. Anyone wishing to have access to the Internet must have government permission, according to the law. However, many Cubans have found other ways to connect to the Internet. The government filters sites that it finds objectionable and also makes those who are granted Internet access sign a contract which restricts them from looking at material that “violates moral principles of Cuban society or the laws of the country.”[18] Those that have access to e-mail “strongly suspect that . . . messages are read by the secret services since messages from abroad arrive several hours after being sent or not at all.”[19]
c. Violations of Freedom of Expression in 2000
Detentions
14. In 2000, there were several cases of arrests, detentions, interrogations and threats against independent journalists and dissidents. On January 20, José Orlando González Bridon, president of the Cuban Confederation of Democratic Workers and writer for the Prensa Libre de Cuba was detained for several hours and questioned about his writings. He was threatened with prosecution under Law 88 for discrediting the Cuban state, but was not charged.[20]
15. On July 15, Ricardo González Alfonso, an independent journalist and a correspondent for Reporters Without Borders, was detained, interrogated for six hours and released. [21]
16. On July 21, Luis Alberto Rivera Leyva, director of the Agencia de Prensa Libre Oriental (APLO), was arrested before the trial of two opponents and released afterwards, allegedly to prevent his reporting on it. Rivera was threatened, detained and put under house arrest at least seven more times in 2000. [22]
17. On September 15, Jesús and Jadir Hernández Hernández, two brothers who report for the independent news agency Havana Press, were detained for over three days in a small town outside Havana, according to foreign press reports and Committee to Protect Journalists (CPJ) sources in Cuba. The agents confiscated a typewriter, electronic organizer, and manuscript articles written by the brothers. They were interrogated and threatened with prosecution for “contempt” and “spreading false news” and with additional charges under Law 88. They were released September 18. The brothers have been harassed on numerous other occasions, ordered to appear at the State Security Department and interrogated.
18. On November 9, independent journalist Omar Rodríguez Saludes, director of the independent news agency Agencia Nueva Prensa, was arrested by the Department of State Security. His home was searched and he was detained for a day at the Sixth Unit of the National Police and the headquarters of the State Security Department.[23]
19. The Special Rapporteur has received additional reports of at least nineteen similar incidents involving independent Cuban journalists or dissidents. Many of these incidents have involved threats of prosecution under Law 88. Another tactic that has become increasingly common in these situations is releasing detainees in remote locations, with no money or identification.
20. Arrests and detentions were also used to harass foreign journalists and to prevent them from obtaining information about the situation of independent journalists and dissidents in Cuba. On June 18, Italian freelance journalist Carmen Butta was detained after meeting with independent journalists as part of her research for an article on the Cuban independent press. [24]
21. On August 17, French journalist Martine Jacot was detained and interrogated at the Havana airport by six members of the Cuban security forces. She had spent a week in Cuba, on a mission for Reporters Without Borders, interviewing independent journalists and family members of incarcerated journalists. Jacot’s video camera, two video cassettes and some documents were seized.[25]
22. On August 29, Birger Thureson, Peter Götell and Elena Söderquist, three Swedish journalists, were arrested in Havana by state security agents after meeting with independent journalists at a workshop on freedom of the press. They were accused of violating their tourist visas by engaging in journalistic work and were deported after spending two days in detention. [26]
23. On January 12, 2001, two prominent citizens of the Czech Republic were arrested on charges of “subversion” and of being US agents because they met with two Cuban dissidents. Ivan Pilip is the former Czech Minister of Finance and is currently a member of Parliament. Jan Bubenik, a member of a pro-democracy foundation, was an anticommunist student leader during Prague’s “Velvet Revolution” of 1989. The two were held in jail for 24 days, despite the international outcry over this incident and efforts to resolve the issue through diplomatic channels. They were finally released after signing a “confession” for breaking the law on subversion. [27]
Mass Arrests
24. In the weeks leading up to December 10, according to an Amnesty International report, as many as 200 people were arrested because of their suspected involvement in planning anti-government demonstrations or marches for Human Rights Day. The arrested individuals were held in custody in order to prevent their participation in “counter-revolutionary” activities. Most were released within 48 hours, but several were held for longer periods of time and at least two were tried and sentenced. Angel Moya Acosta, a member of the illegal Movimiento Opción Alternativa, and Julia Cecilia Delgado, director of the Gertrudis Gomez de Arellaneda Library and president of the Asociación por la Reconciliación Nacional y el Rescate de los Valores Humanos, were tried for “disrespect” and both were sentenced to a year in prison. Angel Moya Acosta was also banned from travelling to Havana, where his wife and children live, for ten years. Acosta had also been arrested in December 1999, again for being involved in the organization of peaceful protests for Human Rights Day. He was charged with resistance, public disorder and instigation to commit crime, but was released in August 2000 without ever having been tried. Leonardo Bruzón Avila, president of the Movimiento Pro Derechos Humanos 24 de Febrero, and Marcos Lázaro Torres León, national coordinator of the Partido Democrático 30 de Noviembre Frank País, were reportedly still held in detention without charge as of the issuing of Amnesty International’s report, more than 10 days after their arrest.[28]
Criminal Convictions
25. According to information received, in January, Victor Rolando Arroyo Carmona, a longtime government opponent who wrote for the independent press agency Union of Independent Cuban Journalists and Writers, was sentenced to six months in prison for “hoarding toys.” He had toys in his home that had been paid for by Cuban exiles in Miami and that he was planning to donate to poor children. His house was searched on January 25 and over 140 toys were confiscated. Amnesty International believes that his arrest was due to government disapproval of his journalistic activities and his links with Miami exile groups. Arroyo was released in July after serving the full six-month prison term. This was not the first time Arroyo had been imprisoned. He had previously been jailed for one year and 9 months in 1996 for desacato involving a police officer. Human Rights Watch also reports that on October 16, after Arroyo had been released from prison, he was beaten and insulted by state security agents. “He and another dissident were picked up from a friend’s house, driven to the police station in Güines, beaten en route, and then driven dozens of miles away and released after having been beaten again.”[29]
26. On February 25, Dr. Oscar Elías Biscet González, president of the Lawton Human Rights Foundation, received a three-year prison sentence for dishonoring patriotic symbols, public disorder and instigating delinquency. Dr. Biscet had been arrested in the context of the November 1999 incidents surrounding the Ibero-American Summit.[30] He was planning a march to protest human rights abuses and was arrested during a press conference at his home. The same day, two other protesters, also arrested during the Summit in November 1999, were convicted of “public disorder.” Eduardo Díaz Fleitas, vice president of the Fifth of August Movement, was sentenced to a year in prison. Fermín Scull Zulueta was sentenced to a year of house arrest. The two had been involved in a demonstration to demand respect for human rights when some government supporters tried to stop them.[31]
27. In July, Nestor Rodríguez Lobaina, president of the Movimiento de Jóvenes Cubanos por la Democracia (Cuban Youth Movement for Democracy), was convicted of desacato, public disorder and damages and sentenced to 6 years and 2 months in prison. Eddy Alfredo Mena y González was convicted on same counts for 5 years and 1 month. Rodríguez has been arrested and imprisoned on several other occasions due to his opposition activities. Amnesty International has called both men prisoners of conscience, saying that they have been imprisoned for the non-violent exercise of their right to freedom of expression and association.
28. Three journalists continued to be imprisoned throughout 2000, based on earlier convictions. Manuel Antonio González Castellanos, a correspondent for the independent news agency Cuba Press, and Bernardo Arévalo Padrón, founder of the independent news agency Línea Sur Press, were serving prison terms for desacato. Manuel Antonio González Castellanos was released on February 26, 2001 after two-and-a-half years in prison; his sentence was 31 months. Arévalo Padrón remains in prison as of this writing. Jesús Joel Díaz Hernández, the executive director of the independent news agency Cooperative Avileña de Periodistas Independientes (CAPI), had served two years of a four-year sentence for “dangerousness,” when he was released on January 17, 2001.[32] Also imprisoned throughout 2000 was dissident Vladimiro Roca Atúnez, one of the four leaders of the Grupo de Trabajo de la Disidencia Interna (Internal Dissidents’ Working Group) who were incarcerated and convicted in March 1999 for “acts against the security of the state” and sedition because of an analytical paper they had released entitled “La Patria es de Todos” (“The homeland is for everyone”). The paper critiqued aspects of the Cuban economy, Cuba’s approach to human rights and its one-party political system.[33] Roca Atúnez has not been released as of this writing.
29. There were also some releases of political prisoners in 2000. On April 7, Orestes Rodríguez Horruitener was conditionally released after serving 3 years of a 4-year sentence for “enemy propaganda,” and he left the country on October 26, 2000. On June 1, Maritza Lugo Fernandez, vice president of the illegal Partido Democratico 30 de Noviembre Frank País was released after serving over 5 months in prison without a trial. She was eventually charged with “public disorder,” charges which may still stand, according to Amnesty International. On June 10, Guido Sigler Amaya was transferred from prison to house arrest, and was freed on July 9. His brother Ariel Sigler Amaya was freed on August 5. They, along with Angel Moya Acosta, are members of the Movimiento Opción Alternativa and were arrested on December 15, 1999 after a demonstration in Pedro Betancourt village in Matanzas province on December 10 to celebrate the 51st Anniversary of the Universal Declaration of Human Rights. Charged with resistance, public disorder and “instigation to commit a crime,” they were never tried or sentenced.[34]
[1] Article 53 of the Constitution of Cuba.
[2] See discussion of official and independent media, infra.
[3]Principle 12, Declaration of Principles for Freedom of Expression.
[4] Article 144.1 of the Penal Code of Cuba.
[5] Article 100 of the Penal Code.
[6] Article 103.1 of the Penal Code.
[7] Articles 124 & 125 of the Penal Code.
[8] Article 143.1 of the Penal Code.
[9] Article 200-201 of the Penal Code.
[10] Article 202 of the Penal Code.
[11] Article 339 of the Penal Code.
[12] Article 203 of the Penal Code.
[13] Article 208 of the Penal Code.
[14] Article 72 of the Penal Code.
[15]Reporters without Borders, “Harassment, exile, imprisonment: One hundred independant journalists face the state,” Sept. 2000, available at http://www.rsf.fr/uk/html/ameriques/rapport/cubauk.html.
[16] Id.
[17] Amnesty International.
[18] Reporters sans Frontières, supra note 14.
[19] Id.
[20] Human Rights Watch, New York.
[21]Reporters without Borders, Paris, France.
[22] Human Rights Watch.
[23]Inter-American Press Association (IAPA).
[24] Human Rights Watch.
[25]Reporters without Borders, Paris, France.
[26] Human Rights Watch, CPJ, RSF.
[27] The Miami Herald, Miami, United States.
[28] Amnesty International, “Cuba marks Human Rights Day with mass detentions and sentences for dissidents,” December 14, 2000.
[29] Human Rights Watch, World Report 2001, at 123.
[30] During the November 1999 Ibero-American Summit held in Havana, an estimated 260 dissidents were detained and others placed under house arrest in an effort to prevent anti-government demonstrations. Most were released after short periods of time, but several remained in prison, some for many months without ever being charged or tried.
[31] Human Rights Watch, Amnesty International.
[32]Reporters without Borders, Paris, France.
[33] In May 2000, the other three leaders—Martha Beatriz Roque Cabello, Felix Antonio Bonne Carcasses and Rene Gomez Manzano—were granted conditional early release.
[34] Amnesty International.