Cuban Prisoners Defenders Report, October 17, 2019:
IN A STRONG REPORT OF 4 UNITED NATIONS SPECIAL RAPPORTEURS…
- The statement does not leave a single aspect uncovered in the repression and violations of artistic freedom in Cuba and determines 22 very wide points of potential violations and to monitor on Cuba regarding cultural, artistic, association, freedom of expression and freedom of expression. human rights.
- The communique analyzes in detail Decree 349 on “Contraventions to the regulations in the field of cultural policy and on the provision of artistic services”, a decree that has caused hundreds of arrests, several political prisoners of conscience and represented the systematization of the repression on culture, and that finds multiple violations, transversal, which are scandalous to their mere reading.
- The document is produced by the Special Rapporteur on cultural rights, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, the Special Rapporteur on the rights to freedom of peaceful assembly and association and the Rapporteur Special on the situation of human rights defenders.
- Although it was published by the United Nations in the third week of August of this year, it had gone unnoticed by media and organizations because the complainants hid their identity in the complaint and it is clear to think that it could be because they could fear of a strong reprisal of the regime if they advertised it. Prisoners Defenders, organization that found the document, brings it to light with the assurance that the identity of the complainants is protected by the highest levels of confidentiality of the United Nations High Commissioner for Human Rights, and that the content that has been published was already known to the Government of Cuba.
1. The United Nations Communique
In its document, the High Commissioner, by word of 4 Special Rapporteurs, states that “the norms contained in Decree 349 […], therefore, come into direct conflict with Cuba’s obligations under international human rights law with respect to freedom of expression, artistic freedom and the right to participate in cultural life.”
The UN is also concerned that “the Decree gives inspectors absolute authority to impose sanctions based on their personal opinions. In addition, given that the sanctioning body and the body that handles appeals against these sanctions are the same, we are also concerned that there is no significant and impartial appeal process and, therefore, does not constitute an effective (judicial) appeal by of the competent judicial, administrative or legislative authorities”.
2. Alleged violations of Decree 349 to international law
The aforementioned 4 Special Rapporteurs remind Cuba of its obligations with respect to the following treaties and agreements, which could be subject to violation by this Decree (textual extracts) and / or that should be remembered for vigilance in this specific case:
- Article 18 of the Vienna Convention on the Law of Treaties (1969).
- Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which Cuba signed on February 28, 2008, which recognizes the right of everyone to participate in cultural life […]
- Article 27 of the Universal Declaration of Human Rights, which also recognizes the right of every person to participate freely in cultural life […]
- Article 31 of the Convention on the Rights of the Child, ratified by Cuba on August 21, 1991 […]
- Article 2 of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, ratified by Cuba on May 29, 2007, stating that “[l] cultural diversity can only be protected and promoted if human rights and fundamental freedoms are guaranteed, such as freedom of expression, information and communication, as well as the ability of individuals to choose cultural expressions“[…]
- Article 7 of the UNESCO Convention on the
Protection and Promotion of the Diversity of Cultural Expressions, ratified by Cuba on
May 29, 2007, since it requires that states “strive to create an
environment in their territory that encourages people and social groups to:
- create, produce, disseminate and distribute their own cultural expressions […]
- have access to the various cultural expressions from their territory […]”
- The Human Rights Council resolution 40/6 of March 2019, in whose paragraphs 2 and 5 respectively, recognizes the right of every person to “participate in cultural life and enjoy the benefits of scientific progress and its applications, and reaffirms that States have the responsibility to promote and protect cultural rights, and that those rights must be guaranteed for all, without discrimination”[…]
- Article 19 of the International Covenant on Civil and Political Rights signed by Cuba on February 28, 2008, which protects the right of every person to freedom of expression, includes the freedom to seek, receive and disseminate information and ideas of all kinds , regardless of borders, either orally, in writing or in print or artistic form, or by any other procedure of your choice […]
- Article 19 of the Universal Declaration of Human Rights, which stipulates that “Everyone has the right to freedom of opinion and expression; this right includes the right not to be disturbed because of their opinions, to investigate and receive information and opinions, and to disseminate them, without limitation of borders, by any means of expression“
- Article 13 of the Convention on the Rights of the Child, which stipulates that this right also applies to children.
- Paragraphs 3, 32, 85, 89d of the Report of the Special Rapporteur on cultural rights in the 2013 General Assembly of the United Nations (A/HRC/23/34) and paragraph 21 of the Special Rapporteur on cultural rights in the 2013 General Assembly of the United Nations (A/HRC/37/55), which specifies that “States must guarantee the full application of artistic freedom and resort to limitations only when absolutely necessary. In particular, decision makers, when considering possible limitations to artistic freedom, must take into account the nature of artistic creativity (as opposed to its value or merit), as well as the right of artists to dissent , to use political, religious and economic symbols as counter-discourse to the dominant powers and to express their own beliefs and worldview. ”
- The principle set forth in Resolution Human Rights Council Resolution 12/16, in which “States are requested to refrain from imposing restrictions on the discussion of government policies and political debate; to the presentation of reports on human rights, government activities and corruption in government; and to the expression of opinions and dissent, religion or beliefs; as well as the free circulation of information and ideas, including practices such as the prohibition or closure of publications or other means of communication, and the abuse of administrative measures and censorship ”.
- The recommendations made by the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and the Special Rapporteur in the field of cultural rights, to distinguish between a) the expression that constitutes a criminal offense; b) the expression that is not criminally punishable, but that may justify a civil lawsuit or administrative sanctions; and c) the expression that does not give rise to the imposition of criminal, civil or administrative sanctions, but which continues to raise concern regarding tolerance, courtesy and respect for the rights of others (A/66/290, para. 18; A/HRC/23/34, para. 31). What may be morally objectionable (from a point of view) may not necessarily be legally inadmissible or condemnable.
- The conclusions of the Special Rapporteur in the field of cultural rights, who emphasized that a system that automatically required official authorization of the content before publication would be unacceptable, since its damage to the freedom of artistic expression and creativity would far exceed the benefit of its objectives. Appeals must be guaranteed before an independent entity on any decision to exercise a prior restriction (A/HRC/23/34, paras. 61 and 89b).
- Article 20 of the Universal Declaration of Human Rights.
- Articles 21 and 22 of the International Covenant on Civil and Political Rights.
- The report of the Special Rapporteur on the rights to freedom of peaceful assembly and association, which emphasizes that the “[d] right to freedom of association requires States to adopt positive measures to establish and maintain an environment conducive to the Enjoy that right. It is essential that people who exercise the right to freedom of association can act freely, without fear of possible threats, acts of intimidation or violence.” (A/HRC/20/27, paragraph 63).
- La resolución 24/5 del Consejo de Derechos Humanos, que “Recuerda a los Estados su obligación de respetar y proteger plenamente los derechos de todas las personas a la libertad de reunión pacífica y de asociación por cualquier vía, electrónica o no, […], incluidos los de las personas que abracen convicciones o creencias minoritarias o disidentes, los defensores de los derechos humanos, las personas afiliadas a sindicatos y otras personas, incluidos los migrantes, que traten de ejercer o promover esos derechos, y a que adopten todas las medidas necesarias para asegurar que cualquier restricción al libre ejercicio del derecho a la libertad de reunión pacífica y de asociación sea conforme con las obligaciones que les incumben en virtud del derecho internacional de los derechos humanos”.
- Human Rights Council resolution 24/5, which “Reminds States of their obligation to fully respect and protect the rights of all persons to the freedom of peaceful assembly and association by any means, electronic or not, [… ], including those of people who hold minority or dissenting beliefs or beliefs, human rights defenders, union members and others, including migrants, who try to exercise or promote those rights, as they adopt all necessary measures to ensure that any restriction to the free exercise of the right to freedom of peaceful assembly and association is in accordance with their obligations under international human rights law”.
- Articles 1 and 2 of the United Nations Declaration on the right and duty of individuals, groups and institutions to promote and protect universally recognized human rights and fundamental freedoms, which state that “everyone has the right to promote and ensure the protection and realization of human rights and fundamental freedoms at the national and international levels and that each State has the primary responsibility and the duty to protect, promote and enforce all human rights and fundamental freedoms”.
- Article 5a of the previous Declaration, which protects “the right to assemble or demonstrate peacefully”.
- Article 6a of the same previous Declaration, which establishes the right to know, collect, obtain, receive and possess information on all human rights and fundamental freedoms.
- And articles 6b and 6c of the previous Declaration, which stipulate the right to publish, impart or disseminate freely to third parties’ opinions, information and knowledge related to all human rights and fundamental freedoms, and to study and debate the observation of those rights.
3. Decree 349 and the repression associated therewith
Decree No. 349/2018, promulgated by the Council of Ministers of Cuba and signed by Miguel Díaz-Canel Bermúdez as President of the Council of State and Ministers on April 20, 2018, published in the Official Gazette of Cuba in July of In the same year, it has meant to date hundreds of arrests in Cuba for artists and cultural personalities.
The Decree requires, for example, the approval of the authorities, so that artists can present their work to the public, and creates the figure of the “inspector”, who may close an exhibition or finish a concert or cultural expression if he determines that it is not in accordance with the cultural policy of the Revolution.
It was denounced by Amnesty International on August 24, 2018 in an extensive and harsh statement. Also Human Rights Watch, in its report Cuba: Events 2018, described, more briefly, and condemned this decree.
Maykel Castillo Pérez is one of the artists named by Prisoners Defenders as Convict of Conscience, who entered prison on September 24, 2018, with a year and a half sentence, for opposing Decree 349 by sponsoring a concert in the official cultural space “La Madriguera” in Havana. Likewise, Lázaro Leonardo Rodríguez Betancourt was a Convict of Conscience from November 13, 2018 until August 23, 2019, date on which he was released without charges without even having put him on trial, for peacefully protesting against said decree.
There are many Cuban artists who have suffered arbitrary detentions, beatings and repression on the occasion of this decree and their opposition to it, as is the case of the well-known visual artist Luis Manuel Otero Alcantara, the artist Tania Bruguera, known for her political and social works and internationally recognized, or the poet Amaury Pacheco. But these are only a minimal representation of the infinity of artists, sympathizers and family members that have suffered the repression caused by this Decree.
Although this Decree represented one more step to set this issue down in black and white about the artistic situation in Cuba, artistic repression in Cuba has been a reality for 60 years. Artists such as Celia Cruz, Paquito D’Rivera, Arturo Sandoval or Bebo Valdés, among hundreds of internationally recognized figures, as well as thousands of musicians who managed to escape from the Civil Missions of work abroad where salaries are requisitioned by the government of Cuba in many cases by more than 90% and in condition of slavery and human trafficking, are exponents of a dictatorship that represses artistic expression, uses it to its advantage and only approves it when it is a vehicle that serves its interests.
No artist of the so-called “contestants” has the official concert halls open, all of them owned by the State. Before Decree 349, facing the ban on the halls for their art, artists such as Raudel Collazo, who was recognized worldwide for his heartbreaking allegory to the “Decadencia“, suffered ostracism and had to promote concerts in private houses or the most unexpected places, with its own means, its own diffusion and a high level of repressive and economic risk. This practice began to spread, and the prohibitions on this type of independent artistic expression increased. Decree 349 was nothing more than the “institutional” response of the regime to these growing popular initiatives to escape artistic repression.
The weakness of the regime is such that it cannot allow a single area of freedom to the Cuban that does not do the task to inactivate them intellectually and politically.
After everything argued by the United Nations, the Government of Cuba dares nothing less, without arguing, than to say that “Decree 349 does not limit freedom of artistic expression and creativity, or the right to freedom of expression, enshrined in articles 54 and 32 of the Constitution of the Republic, respectively. The work of the Revolution has allowed sufficient levels of education and instruction so that all people can exercise these rights, which are not at all limited by Decree 349.”
ABOUT CUBAN PRISONERS DEFENDERS
Cuban Prisoners Defenders is an independent group of analysis, study and action, with the collaboration of all dissident groups on the island and the families of political prisoners to gather information and promote the freedom of all political prisoners, as well as to maintain the updated weekly lists of Convicted of Conscience, Condemned of Conscience,, Political Prisoners and Long-lasting political prisoners imprisoned. Cuban Prisoners Defenders is part of the Prisoners Defenders International Network, a legally registered association based in Madrid, Spain, and whose Internet address is www.prisonersdefenders.org.
The group from Cuba is coordinated by Adolfo Fernández Sainz (FNCA) and Javier Larrondo (UNPACU), without these organizations controlling to any degree, allowing a dedicated work to all political prisoners without distinctions and equally. In Madrid’s office, the legal reports have the contribution of another one of the founders of Cuban Prisoners Defenders, the international criminal lawyer Mr. Sebastián Rivero, who, among other experiences, has been a collaborating jurist of the Permanent Ambassador of Spain at the United Nations. The organization also has different patrons from all ideologies, among others several deputies of the National Congress of Spain of different parties, as well as D. Blas Jesús Imbroda, president of the International Criminal Bar (ICB, elected in 2017) and Dean of the Bar Association of Melilla, Spain.
The works of Cuban Prisoners Defenders are adopted by numerous institutions and are sent, among others, to CANF, UNPACU, ASIC, Amnesty International, Human Rights Watch, Inter-American Commission on Human Rights, Organization of American States, European Parliament, Congress and Senate of the United States, Ministry of Foreign Affairs of Spain, People In Need, Office of the High Commissioner for Human Rights of the UN for Latin America and the Caribbean, Real Instituto Elcano, Fundación Transición Española, International Institute on Race, Equality and Human Rights, FANTU, Party for Democracy Pedro Luis Boitel, Independent Pedagogues College of Cuba, Freedom House, Center for the Opening and Development of Latin America (CADAL), FAES, Ladies in White y Citizen Movement Reflection and Reconciliation, among many other institutions and organizations.
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