7-12-05,10:04am

OPINION No. 19/2005 (UNITED STATES OF AMERICA)

Communication: addressed to the Government of the United States of America on 8 April 2004

Concerning: Mr. Antonio Guerrero Rodríguez, Mr. Fernando González Llort, Mr. Gerardo Hernández Nordelo, Mr. Ramón Labañino Salazar and Mr. René González Sehwerert

From the information received, the Working Group observes the following:

(a) Following their arrest, and notwithstanding the fact that the detainees had been informed of their right to remain silent and had their defense provided by the Government, they were kept in solitary confinement for 17 months, during which communication with their attorneys, and access to evidence and thus, possibilities to a adequate defense were weakened,

(b) As the case was classified as one of national security, access by the detainees to the documents that contained evidence was impaired. The Government has not contested the fact that defense lawyers had very limited access to evidence because of this classification, negatively affecting their ability to present counter evidence, This particular application of the legal provisions of the CIPA, as made in this case and as the information available to the Working Group reveals, has also undermined the equal balance between the prosecution and the defense, (c) The jury for the trial was selected following an examination process in which the defense attorneys had the opportunity and availed themselves of the procedural tools to reject potential jurors, and ensured that no Cuban-Americans served on the jury, Nevertheless, the Government has not denied that even so, the climate of bias and prejudice against the accused in Miami persisted and helped to present the accused as guilty from the beginning. It was not contested by the Government that one year later it admitted that Miami was an unsuitable place for a trial where it proved almost impossible to select an impartial jury in a case linked with Cuba.

The Working Group notes that it arises from the facts and circumstances in which the trial took place and from the nature of the charges and the harsh sentences given to the accused, that the trial did not take place in the climate of objectivity and impartiality which is required in order to conclude on the observance of the standards of a fair trial, as defined in Article 14 of the International Covenant on Civil and Political Rights, to which the United States of America is a party.

This imbalance, taking into account the severe sentences received by the persons under consideration in this case, is incompatible with the standards contained in Article 14 of the International Covenant en Civil and Political Rights that guarantee that each person accused of a crime has the right to exercise, in full equality, all the adequate facilities to prepare his defense.

The Working Group concludes that the three elements that were enunciated above, combined together, are of such gravity that they confer the deprivation of liberty of these five persons an arbitrary character.

In light of the preceding, the Working Group issues the following opinion:

The deprivation of Iiberty of Messrs. Antonio Guerrero Rodriguez, Mr. Fernando González Llort, Mr Gerardo Hernández Nordelo, Mr. Ramón Labañino Salazar and Mr. René González Sehweret is arbitrary, being in contravention of article 14 of the International Covenant on Civil and Political Rights and corresponds to category III of the applicable categories examined in the cases before the Working Group.

Having issued this opinion, the Working Group requests the Government to adopt the necessary steps to remedy the situation, in conformity with the principles stated in the International Covenant on Civil and Political Rights.

Adopted on 27 May 2005