US embassy cable - 05GENEVA2088

UNCLAS SECTION 01 OF 02 GENEVA 002088 
 
SIPDIS 
 
STATE FOR IO/SHA, DRL/MLA 
 
E.O. 12958: N/A 
TAGS: PHUM, UNHRC-1, Human Rights 
SUBJECT:  SR ON INDEPENDENCE OF JUDGES AND LAWYERS ON THE 
CUBAN FIVE 
 
1.  Mission received the following communication from 
Leandro Despouy, Special Rapporteur on the Independence of 
Judges and Lawyers regarding the recent decision by the 
United States Court of Appeals ordering a retrial of the 
case against Mr. Antonio Guerrero Rodriguez, Mr. Fernando 
Gonzalez Llort, Mr. Gerardo Hernandez Nordelo, Mr. Ramon 
Labanino Salazar and Mr. Rene Gonzalez Sehwerert. This 
communication has been forwarded to IO/SHA via e-mail and is 
included with number 74 on the Geneva 2004Communications 
Log. 
 
2.  Begin text of letter: 
 
REFERENCE: AL C/SO 214 (3-3-12) 
USA 7/2005 
 
Excellency, 
 
31 August 2005 
 
I have the honour to address you in my capacity as Special 
Rapporteur on the independence of judges and lawyers 
pursuant to Commission on Human Rights resolution 2005/33. 
 
In this connection, I would like to take this opportunity to 
welcome the recent decision by a United States appeals court 
to order a retrial concerning; 
 
Mr. Antonio Guerrero Rodriguez, born in Miami, Florida, on 
16 October 1958; resident of South Florence; American 
citizen. 
 
Mr. Fernando Gonzalez Llort (Ruben Campa), born in Havana 
City, Cuba, on 18 August 1963; resident of Oxford, Florida; 
Cuban citizen. 
 
Mr. Gerardo Hernandez Nordelo (Manuel Viramontes), born in 
Havana City, Cuba, on 4 Juno 1965; resident of Blein 
Boulevard, Lompoc, Florida; Cuban citizen. 
 
Mr. Ramon Labanino Salazar (Luis Medina), born on 9 June 
1963 in Havana City, Cuba; resident of Beaumont, Florida; 
Cuban citizen. 
 
Mr. Rene Gonzalez Sehwerert, born on 13 August 1956 in 
Chicago, Illinois; resident of Bradford, Florida; American 
citizen. 
 
On 5 August 2005 a United States appeals court ruled that 
the original trial concerning these five defendants was 
unfair because it was not possible to receive a fair trial 
in Miami due to the biased environment in which the trial 
was held and due to the large number of Cuban exiles who 
held prejudicial views regarding the Government of Cuba. 
 
By way of background, in September 1998, Mr. Antonio 
Guerrero Rodriguez, Mr. Fernando Gonzalez Llort (Ruben 
Campa), Mr. Gerardo Hernandez Nordelo (Manuel Viramontes), 
Mr. Ramon Labanino Salazar (Luis Medina), Mr. Rene Gonzalez 
Sehwerert were arrested in Florida. In June 2001, they were 
tried in Miami Dade County. Lawyers for the defendants 
requested that the trial be conducted in another city, 
located in Broward County, because they considered that 
impartiality could not be guaranteed in Miami. The lawyers' 
request was however rejected. Antonio Guerrero Rodriguez was 
sentenced to life imprisonment plus 10 years. Fernando 
Gonzalez Llort was sentenced to 19 years' imprisonment. 
Gerardo Hernandez Nordele was condemned to two life 
sentences plus 15 years. Ramon Labanino Salazar was 
sentenced to life imprisonment plus 18 years and Rene 
Gonzalez Sehwerert to 15 years' imprisonment. The appeal, 
took place in March 2004, and a decision to order a retrial 
was finally announced on 5 August 2005 by the US Appeals 
Court. 
 
In addition, it has been alleged that the five defendants 
were denied access to a lawyer during the first two days 
following their arrest. Subsequently, they were kept in 
solitary confinement during the 17 months preceding the 
trial. It is alleged that before and during the trial, all 
the evidence in the case file was kept in a room under the 
court's control, and that the defence lawyers could access 
this room only after going through a bureaucratic procedure. 
The defence lawyers were also prohibited from making copies 
of the documents in evidence and from taking notes in order 
to analyse them. In this context, I would like to refer your 
Excellency to the Working Group on Arbitrary Detention's 
Legal Opinion No. 19/2005 issued on 27 May 2005, which found 
that the five defendants had been arbitrarily detained and 
noted a number of due process violations. 
 
While I do not wish to prejudge the accuracy of these 
allegations, I would like to refer your Excellency's 
Government to the Basic Principles on the Independence of 
the Judiciary, adopted by the Seventh United Nations 
Congress on the Prevention of Crime and the Treatment of 
Offenders held at Milan from 26 August to 6 September 1985 
and endorsed by General Assembly resolutions 40/32 of 29 
November 1985 and 40/146 of 13 December 1985. In particular: 
 
- principle 2: "The judiciary shall decide matters before 
them impartially, on the basis of facts and in accordance 
with the law, without any restrictions, improper influences, 
inducements, pressures, threats or interferences, direct or 
indirect, from any quarter or for any reason." 
I would also like to refer Your Excellency's Government to 
the Basic Principles on the Role of Lawyers, Adopted by the 
Eighth United Nations Congress on the Prevention of Crime 
and the Treatment of Offenders, Havana, Cuba, 27 August to 7 
September 1990, in particular: 
 
- principle 5. Governments shall ensure that all persons are 
immediately informed by the competent authority of their 
right to be assisted by a lawyer of their own choice upon 
arrest or detention or when charged with a criminal offence. 
 
-  principle 21. "It is the duty of the competent 
authorities to ensure lawyers access to appropriate 
information, files and documents in their possession or 
control in sufficient time to enable lawyers to provide 
effective legal assistance to their clients. Such access 
should be provided at the earliest appropriate time." 
 
I ask your Excellency's Government that the retrial of this 
case be conducted before an independent and impartial court 
and in a different location, and urge your Excellency's 
Government to take all necessary measures to guarantee that 
the rights and freedoms of the aforementioned persons are 
respected and accountability of any person guilty of the 
alleged violations ensured. 
 
Moreover, it is my responsibility under the mandate provided 
to me by the Commission on Human Rights and reinforced by 
the appropriate resolutions of the General Assembly, to seek 
to clarify all cases brought to my attention. Since I am 
expected to report on these cases to the Commission, I would 
be grateful to be kept informed of the outcome of this case. 
 
Please accept, Excellency, the assurances of my highest 
consideration. 
 
Leandro Despouy 
Special Rapporteur on the independence of judges and lawyers 
 
End text of letter. 
 
MOLEY