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PRONOUNCEMENT IN SUPPORT OF THE U.N. WORKING GROUP on ARBITRARY DETENTION
OPINION NO. 19/2005

March 27, 2008

The ruling council of the Federation of Ibero-American Ombudsmen (FIO), representing 86 national, state, autonomous and provincial ombudsmen from Spain, Portugal, Andorra, Mexico, Puerto Rico, Guatemala, El Salvador, Honduras, Nicaragua, Costa Rica, Panama, Colombia, Venezuela, Ecuador, Bolivia, Peru, Uruguay, Paraguay and Argentina, in the pursuance of our duty of encouraging, improving and strengthen the Human Rights culture and denouncing to the international public opinion the violations of the Human Rights that, for its seriousness deserve it, met in Mexico, on March 27, due to declare the following:

1. The Opinion No. 19/2005 from the UN Working Group on Arbitrary Detention addressed to the Government of the United States of America, relating to the case of Antonio Guerrero Rodríguez, Fernando González Llort, Gerardo Hernández Nordelo, Ramón Labañino Salazar and René González Sehwerert, recognizes that the aforementioned country is a Party of the International Covenant on Civil and Political Rights, and, therefore, the US government is obliged to honour it.

2. Regarding this subject, and in observance of the resolution 1991/42, 1997/50 and 2003/31 of the then Commission on Human Rights, the UN Working Group on Arbitrary Detention, in accordance with the articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights and also, in respect with the articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on Civil and Political Rights, 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.

(d) 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.

(e) 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:

1. 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.

2. 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.

The above opinion was adopted on 27 May, 2005
The members of the Federation of Ibero-American Ombudsmen (FIO), recognize that:

1. In accordance with the established by the Article 14 of the International Covenant on Civil and Political Rights - All persons shall be equal before the courts and tribunals. Everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law, in the determination of any criminal charge against him, or of his rights and obligations in a suit at law.

2. It is necessary to remember that everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law and to be tried without undue delay; to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing.

3. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

4. Likewise and in accordance of the Article 18 of the abovementioned covenant, everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

5. Also, the Article 19 of this international document establishes that everyone shall have the right to hold opinions without interference and the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

In light of the preceding, the FIO Ruling Council resolved:

1. To recommend and insist on full compliance with opinion No. 19/2005 of the United Nations Arbitrary Detentions Work Group that all people are always equal before the law and have, without distinction, right and equal protection of the law. Everyone has the right to equal protection against any discrimination and against any provocation for such discrimination.

2. Therefore, a fair and expedited trial is sought for Antonio Guerrero Rodríguez, Fernando González Llort, Gerardo Hernández Nordelo, Ramón Labañino Salazar and René González Sehwerert under the laws of the United States and the international instruments signed and ratified by that country.

3. Finally, it is sought that these five imprisoned people may unite with and be visited by their family members independent of their condition.

FIO Ruling Council
Dr. Omar Cabezas Lacayo, FIO President and Nicaragua Ombudsman
Dra. Beatriz Merino Lucero; Peru Ombudsman
Dr. Manuel María Páez Monges; Paraguay Ombudsman
Dr. Enrique Múgica Herzog; Spain Ombudsman
Dr. Carlos López Nieves; Puerto Rico Ombudsman
Óscar Humberto Herrera López; President of the Nayarit Commission of Human Rights, Mexico