Amnesty International on the Cuba Five

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Amnesty International on the Cuban Five

The Honorable John Ashcroft
U. S. Department of Justice
950 Pennsylvania Avenue N.W.
Room 440
Washington DC 20530-0001
USA

2 December 2002

Dear Attorney General

I am writing regarding a complaint we have received alleging that five Cuban nationals convicted in June 2001 of conspiracy to commit offences against the USA by gathering information about US military installations and other charges (United States v Hernandez et al) have been denied family visits.

The prisoners are currently serving prison terms ranging from 15 years to life in various federal maximum security penitentiaries. It is alleged that none of the prisoners has thus far been allowed to receive visits from their families in Cuba, including wives and children. Olga Salanueva, the wife of Rene Gonzalez, reportedly applied for and was granted a visa in order to visit her husband with their four-year-old daughter, but this was later revoked. The last time she saw her husband was on the eve of his trial in November 2000. It has been reported that Ms. Perez O'Connor, the wife of Gerardo Hernandez Nordelo, also obtained a visa for the purpose of visiting her husband but was detained upon her arrival at the international airport at Houston, Texas, on 25 July 2002. She was reportedly isolated, photographed, fingerprinted and interrogated by the FBI before being expelled from the country 11 hours later. She was allegedly denied permission to contact the Cuban Consul during her detention, despite the efforts of a diplomatic officer of the Cuban Interests Section in Washington who had accompanied her to the USA. Such a denial would be contrary to Article 36 of the Vienna Convention on Consular Relations which the US has ratified and other international standards. Relatives of the other prisoners reportedly requested visas to visit them several months ago, but have not received a response.

Amnesty International is not aware of the grounds on which visas have been denied in the above cases. However, we wish to draw your attention to international standards which emphasize the importance of the family and the right of all prisoners to maintain contact with their families and to receive visits.

The Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment provides that:

"19. A detained or imprisoned person shall have the right to visit and to correspond with, in particular, members of his family É subject to reasonable conditions and restrictions as specified by law or lawful regulations."

The Standard Minimum Rules for the Treatment of Prisoners provide that:

"37. Prisoners shall be allowed under necessary supervision to communicate with their family and reputable friends at regular intervals, both by correspondence and by receiving visits."

Article 23, paragraph 1, of the International Covenant on Civil and Political Rights (ICCPR), which the US has ratified, states: "The family is the natural and fundamental group unit of society and is entitled to protection by society and the State". In its General Comment 15 on "The position of aliens under the Covenant" (twenty-seventh session, 1986), the Human Rights Committee states:

"1. Reports from States parties have often failed to take into account that each State party must ensure the rights in the Covenant to "all individuals within its territory and subject to its jurisdiction" (art. 2, para 1). In general, the rights set forth in the Covenant apply to everyone, irrespective of reciprocity, and irrespective of his or her nationality or statelessness." and

"5. The Covenant does not recognize the right of aliens to enter or reside in the territory of a State Party. It is in principle a matter for the State to decide who it will admit to its territory. However, in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise." (AI emphasis)

In General Comment 21. "Humane treatment of persons deprived of liberty (article 10 of the ICCPR) (Forth-fourth session 1992), the Committee states:

"3. Article 10, paragraph 1, imposes on States parties a positive obligation towards persons who are particularly vulnerable because of their status as persons deprived of liberty, and complements for them the ban on torture or other cruel, inhuman or degrading treatment or punishment contained in article 7 of the Covenant. Thus, not only may persons deprived of their liberty not be subjected to treatment that is contrary to article 7 É but neither may they be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons. Persons deprived of their liberty enjoy all the rights set forth in the Covenant, subject to the restrictions that are unavoidable in an enclosed environment." and

"4. Treating all persons deprived of their liberty with humanity and with respect for their dignity is a fundamental and universally applicable ruleÉ This rule must be applied without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." (AI emphasis)

The denial of visas has meant that the young children of some prisoners have been unable to maintain contact with their fathers. Article 24 of the ICCPR provides that "Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property of birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State".

We note also that Article 10 of the Convention on the Rights of the Child, signed but not ratified by the USA, states that " A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances, personal relations and direct contacts with both parents".

Although we are not in a position to comment on the individual circumstances of these cases, we nevertheless urge you to carefully review all requests from immediate family members for permission to visit the above prisoners, with a view to ensuring that prisoners maintain contact with their families and their children wherever possible, including through regular visits, and that such contact is not unduly restricted.

Amnesty International is looking separately into claims which have been made regarding the fairness of the criminal proceedings leading to the convictions in the above cases.

I am sending a copy of this letter to Kathleen Hawk Sawyer, Director, Federal Bureau of Prisons.

Yours sincerely,

Susan Lee

Program Director
Americas Regional Program
Amnesty International (Canada)

Rene Gonzalez is one of two convicted in the case who is also a US citizen; his daughter is also a US citizen but resides with her mother in Cuba.

United Nations (UN) Standard Minimum Rules for the Treatment of Prisoners states: "38. (1) Prisoners who are foreign nationals shall be allowed reasonable facilities to communicate with the diplomatic and consular representatives of the State to which they belong. (2) Prisoners who are nationals of States without diplomatic or consular representation in the country shall be allowed similar facilities to communicate with the diplomatic representative of the State which takes charge of their interests or any national or international authority whose task it is to protect such persons."

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