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Cablegate: Sr On Independence of Judges and Lawyers On The

This record is a partial extract of the original cable. The full text of the original cable is not available.

UNCLAS SECTION 01 OF 02 GENEVA 002088

SIPDIS

STATE FOR IO/SHA, DRL/MLA

E.O. 12958: N/A
TAGS: PHUM UNHRC
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

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