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The fundamental issue in the case of the Cuban Five is the administration of United States justice in accordance with Constitutional guarantees, Nuris Piñero Sierra said in Havana last week.

One of a team of lawyers acting for the families of the five Cuban anti-terrorists held in United States jails for the past ten years, Nuris Piñero was responding to questions about the record number of amicus curiae briefs filed on 6 March 2009 with the United States Supreme Court in support of reviewing the case of Gerardo Hernández, Antonio Guerrero, Ramón Labañino, René González, and Fernando González[1].

Referring to the extraordinary level of international concern reflected in the briefs lodged by jurists and civil rights groups [2], 10 Nobel laureates[3], academics[4], politicians including several ex-presidents[5], and human rights defenders[6], Señora Piñero emphasised that what is most important to the defendants, to the United States, and internationally is the failure in this case of the U.S. justice system to meet its constitutional obligations, particularly in relation to procedural issues such as venue, civil rights issues such as racial discrimination in the selection of jurors, and the unprecedented conviction of an individual, Gerardo Hernández, for a sovereign act of State[7].

“Really, I think that the Supreme Court will have to review the case, considering the strength of the technical and juridical arguments, and of justice itself, put forward in these twelve Amicus briefs, and by the defence,” she said.

Given the separation of powers that is designed to guarantee the independence of the judiciary and protect the administration of justice from political interference, which president is in office in either country is not, should not have been, and never should be, a factor in the determination of guilt of defendants, or in their sentencing. Commenting on the political context of the case, she declared:

“The United Nations Committee on Arbitrary Detention for the first time in history censured a North American Government for its treatment regarding an active case, when on 27 May 2004 the Committee issued their decision that the detention of these Five Cubans was arbitrary, and illegal.”

Although they should not interfere in judicial proceedings, governments do have a responsibility to ensure that their judicial systems are administered in accordance with human rights norms and constitutional guarantees. Sra Piñero stressed that the decision of the Committee on Arbitrary Detention criticised the U.S. government for its failures in relation to this case and recommended it take measures to address the failures, which it has so far failed to do. She considers the change in president is not the most important issue, rather it is the implementation within the U.S. justice system of the Committee’s recommendations, and the juridical principles underlying them. The president’s responsibility in this sense is to ensure the overall integrity of the system, while that of the Supreme Court is to apply the legal principles.

Some commentators, such as former Chief of the U.S. Interests Section in Havana Dr Wayne Smith, have called for a presidential pardon for the Cuban Five, considering their trials to be grossly unfair and a black mark on the U.S. justice system[8]. While the defendants will seek recourse to other options should the current application fail, the legal team is hopeful that the Supreme Court will take this opportunity to demonstrate that the US justice system does indeed have integrity, and review the case based on its important juridical principles, not least because of its wider implications than for the Cuban Five alone.

“It is a very technical and complex case...with international repercussions because of its impurities, so if North America is going reaffirm its respect for constitutional rights that have no other remedy, the Supreme Court will admit it,” Nuris Piñero concluded.

The United States Government is expected to file a Brief in Opposition by April 6, and the Court traditionally notifies which cases it has accepted for review – usually only around 1% of applicants - prior to the summer break in July.

Footnotes:

[1] Gerardo Hernández, Antonio Guerrero, Ramón Labañino, René González, and Fernando González infiltrated and monitored Miami-based exile groups responsible for numerous documented terrorist acts against Cuba and Cuban interests. See a detailed history of the case here.

[2] The National Association of Criminal Defence Lawyers; the National Jury Project; National Lawyers Guild and National Conference of Black Lawyers; The Civil Rights Clinic at Howard University School of Law; The William C. Velsaques Institute and The Mexican American Political Association;The Ibero-American Federation of Ombudsman; the Order of Attorneys of Brazil; the Belgium Bar Associations; the Berlin Bar Association; the Committee for Human Rights of the Portuguese Bar Association; the International Federation For Human Rights; Federico Mayor Zaragoza (Director-General of Unesco, 1987-1999); Judge Juan Guzmán Tapia of Chile; Human Rights, Religious and Legal Organizations, Law Professors and Lawyers from Argentina, Chile, Columbia, Ecuador, Germany, Japan, Mexico, Panama, Portugal, Spain and United Kingdom; the International Association of Democratic Lawyers, American Association of Jurists, Indian Association of Lawyers, Droit Solidarite, The Haldane Society, Italian Association of Democratic Lawyers, Japanese Lawyers International Solidarity Association, The National Union of Peoples’ Lawyers of the Philippines, Portuguese Association of Democratic Lawyers, and Progress Lawyers Network of Belgium.

[3] Jose Ramos-Horta, Wole Soyinka, Adolfo Perez Esquivel, Nadine Gordimer, Rigoberta Menchu, Jose Saramago, Zhores Alferov, Dario Fo, Gunter Grass, and Mairead Corrigan Maguire

[4] Dr. Nelson P. Valdés, Dr. Guillermo Grenier, Dr. Félix Masud-Piloto, Dr. José A. Cobas, Dr. Lourdes Arguelles, Dr. Rubén G Rumbaut, Dr. Louis Pérez;

[5] Hundreds of parliamentarians worldwide including two former Presidents and three current Vice-Presidents of the European Parliament, as well as Mary Robinson and Jose Ramos-Horta, former Presidents of Ireland and Timor-Leste respectively.

[6] Former U.N. High Commissioner for Human Rights Mary Robinson, human rights defender and Nobel Laureate Rigoberta Menchu,

[7] Gerardo Hernández was convicted and sentenced to two life sentences plus 80 months for conspiracy to commit murder, in relation to the shooting down of a Brothers to the Rescue (BTR) aircraft by the Cuban government. Gerardo had infiltrated BTR, and had flown some missions with them. He was advised not to fly on the day of the shoot-down, as the flight was to enter Cuban territory, and the Cuban Government had warned that they would exercise their sovereign and legal right to defend their airspace from any encroachment. The dissenting judge in the most recent appeal process stated that there was no evidence that Hernández was involved in any conspiracy to shoot the plane down in international waters, which is illegal.

[8] http://www.globalresearch.ca/index.php?context=va&aid=11991 24 January 2009