United Nations General Assembly A/HRC/WGAD/2012/69 Distr. General Data 2012 Spanish [Unofficial Translation]

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1 United Nations General Assembly A/HRC/WGAD/2012/69 Distr. General Data 2012 Spanish [Unofficial Translation] Human Rights Council Working Group on Arbitrary Detention Opinions approved by the Working Group on Arbitrary Detention in its 63 rd period of sessions (November 15-23, 2012) No. 69/ 2012 Cuba Communication addressed to the Government of Cuba on September 11, Regarding: Mr. Alan Phillip Gross The State is not a Party to the International Covenant on Civil and Political Rights. 1. The Working Group on Arbitrary Detention was established by the former Human Rights Commission by means of its Resolution 1991/42. The Working Group s mandate was clarified and extended by the Commission by means of its Resolution 1997/50. The Human Rights Council assumed the mandate in its Resolution 2006/102 and extended it for a period of three years by means of its Resolution 15/18 dated September 30, The Working Group considers imprisonment to be arbitrary in the following cases: a) When it is demonstrably impossible to invoke any legal grounds that justifies it (such as maintaining someone in detention after he/she has served his/her sentence, or despite the existence of an amnesty law that is applicable to him/her) (Category I); b) When imprisonment results from the exercise of the rights and liberties guaranteed by Articles 7, 13, 14, 18, 19, 20, and 21 of the Universal Declaration of Human Rights and additionally, as regards the States Parties, by Articles 12,18,19, 21, 22, 25, 26, and 27 of the International Covenant of Civil and Political Rights (Category II);

2 c) When the total or partial non-observance of international laws relating to the right to an impartial trial, as outlined in the Universal Declaration of Human Rights and the relevant international instruments accepted by the interested States, is of such gravity that it lends an arbitrary nature to the imprisonment (Category III); d) When asylum applicants, immigrants, or refugees are the object of prolonged administrative detention without the possibility of lodging an administrative or judicial appeal (Category IV); e) When the imprisonment constitutes a violation of international law due to discrimination on the basis of birth; national, ethnic, or social origin; language; religion; economic status; political or other type of opinion; gender; sexual orientation; handicap; or other condition, and whose purpose is to ignore the equality of human rights or can cause this result (Category V). Information Received Communication from the Source 3. Mr. Alan Phillip Gross, born on May 2, 1949 in New York; of United States nationality; married to Ms. Judy Gross; father of two daughters; an expert on international development activities; whose residence is in Washington, DC, United States; he was arrested on December 3, 2009 in a hotel in Havana by agents of the Interior Ministry. His detention was ordered by the People s Provincial Tribunal of Justice of Havana. 4. The source reports that Mr. Gross pursued university studies in the University of Maryland and earned a Master in Social Work (MSW) in the Virginia Commonwealth University. As a specialist in international development, Mr. Gross has carried out development activities and community work in nearly 50 countries and territories. In 2001, he founded the company Joint Business Development Center, LLC (JBDC) with the purpose of helping establish connectivity to the Internet in places with little or no such access. He had no problems with the law in any of the countries in which he carried out his work. 5. On February 10, 2009, JBDC was sub-contracted by the firm Development Alternatives, Inc. (DAI) to execute a project with the United States Agency for International Development (USAID) named Para la Isla [ For the Island ]. The objective of the project was to facilitate the establishment of wireless connections to the Internet and Intranet for Cuba s small Jewish community. 6. In the execution of the project, Mr. Gross transported various computer materials from the United States of America to Cuba, among which can be mentioned Apple computers; BGAN satellite communication terminals (Hughes Model 9201 Broadband Global Area Network); Linksys routers; Blackberry cellular telephones; Apple ipods; web cameras; wireless transmitters; a modem; hard drives; cables; and the corresponding battery chargers.

3 7. Mr. Gross made five trips to Cuba. The first trip took place March 30 to April 6, The following trips began on April 25, 2009; June 4, 2009; July 22, 2009; and November 24, Following the terms of the contract, after each trip he drafted a report, excepting the fifth trip, due to his arrest. Mr. Gross installed wireless Internet connections for small Jewish communities in Comagüey, Havana, and Santiago de Cuba. The source confirms that said communities are very religious; non-political; non-violent; and non-dissident. 8. Following his arrest, Mr. Gross was transferred to the Villa Marista Prison in Havana and later taken to the Carlos J. Finlay military hospital in the same city, where he was kept in a maximum-security area. After 14 months in detention, he was charged with having committed the crimes of acts against the independence or territorial integrity of the State ; being engaged in a subversive project aimed at overthrowing the revolution ; and having violated Article 91 of the Criminal Code. 9. On March 2, 2011, this person s trial began before the People s Provincial Tribunal of Havana, composed of four judges. The trial lasted only two days. On March 11, 2011, the Tribunal issued a guilty judgment and established a penalty for the accused of 15 years in prison. 10. Mr. Gross filed an appeal which was dismissed by the Supreme Court of Justice on August 4, The highest tribunal stated that the program launched by DAI was sponsored by USAID, an entity that works for the overthrow of the socialist revolution and establishment of a capitalist system in Cuba by financing and providing funds to a broad range of organizations and centers that act against Cuba. 11. The source adds that, since his imprisonment, Mr. Gross health has seriously deteriorated. He suffers from degenerative arthritis which is aggravated by the fact that he is not permitted to walk around inside his cell; and a tumor has appeared behind his right shoulder. During his imprisonment, Mr. Gross has lost kilos. He also suffers from mental anguish due to the fact that he is unable to attend to his mother s and eldest daughter s health problems, both of whom have been diagnosed with cancer, or the financial needs of his wife, as he is her only source of livelihood. 12. According to the source, Mr. Gross detention is arbitrary, given the fact that his activities were aimed at promoting and facilitating freedom of expression. Article 91 of the Criminal Code cannot be interpreted in such a fashion that it contradicts with Article 19 (2) and (3) of the International Covenant on Civil and Political Rights. Mr. Gross actions in Cuba were aimed at assisting members of the Cuban Jewish community to access information of their choosing by means of wireless Internet connections. It dealt with helping Cuban citizens to exercise their rights to freedom of information and expression in complete harmony with the international provisions contained in Article 19 of the Universal Declaration of Human Rights and of the International Covenant on Civil and Political Rights, to which the Republic of Cuba is a signatory, and in Article 53 of the Political Constitution of the Republic of Cuba. 13. The source further maintains that in this person s trial, the Cuban authorities failed to observe international principles and norms related to due process under law. Mr. Gross trial was not impartial. According to the source, Cuban courts are not independent from

4 the Executive Branch. Specifically, the sentences meted out to Mr. Gross are limited to repeating the statements and proclamations of Executive Branch authorities and making reference, inter alia, to the Helms-Burton Law and Torricelli Amendment. The sentence deemed Mr. Gross activities to be included in a worldwide United States program valued at $65 million aimed at improving the transition to democracy in Cuba. The source considers that the guilty judgment reveals more interest about the country in which Mr. Gross is a national and in the funding sources of the project than in the concrete actions carried out by this person. 14. During the trial, the principle of presumption of innocence was not respected. Additionally, no evidence was presented to prove the accusations of subversion. The only element that could be proven was that Mr. Gross had imported computer communications technology from the United States in order to facilitate Internet access for members of the Cuban Jewish community. Mr. Gross only offenses were, according to the source, being a United States citizen and working for a sub-contractor of the Government of the United States of America. 15. The source believes that, although the Republic of Cuba is not a party to the International Covenant on Civil and Political Rights, having signed it, it should abstain from any act which is contrary to the treaty s objective and purpose, according to the provisions of Article 18 of the Vienna Convention on the Law of Treaties. 16. The source expresses its concern for Mr. Gross life and health. It reports that on several occasions this person has written to His Excellency the President of the Councils of State and Government appealing to him to intervene on humanitarian grounds and permit him to visit his sick relatives, without receiving a response. 17. The source is of the opinion that Mr. Gross actions cannot be interpreted as being a threat to the sovereignty, independence, security, or territorial integrity of the Republic of Cuba, or to the validity of its socialist system. This person s only interest was to fulfill a contract to facilitate access to information for members of Cuba s Jewish community through wireless Internet connections. During his trial, it was impossible to demonstrate that the activities he carried out in Cuba had counterrevolutionary purposes, or that that they were of a covert or conspiratorial nature as stated in the sentence. Consequently, the source requests that the entirety of this person s rights be reestablished, beginning with his immediate release. Response from the Government 18. The Government issued a complete, detailed response containing all of the background information required for the Working Group to adopt an Opinion, for which it is grateful. In its response, the Government denies that Mr. Gross detention is of an arbitrary nature. It maintains that this individual was tried and convicted of bringing communications equipment into Cuba in a covert and undeclared fashion, some for military use, in order to implement programs of the United States of America in Cuba with the financing of the Government of said country. He was tried and convicted for crimes considered under Cuban law. It maintains that it is common that United States citizens are

5 sent abroad with the goal of establishing illegal communication systems with the objective of destabilizing governments. 19. The Government maintains that Mr. Gross was tried in accordance with Cuban laws and enjoyed the full protection of procedural guarantees. It adds that it is not true that Mr. Gross activity was dedicated to providing technical assistance in the field of communications to the island s small Jewish population, but rather, that it was in fact aimed at subverting public order in an attempt to change the government which the Cuban people has provided for itself. It affirms that it is evident that Mr. Gross knew of the United States of America s Government s plans for Cuba, plans which had been executed since 2008 by the organization USAID. 20. The Government declares that the actions carried out by Mr. Gross were inserted in the programs designed under the Helms-Burton Law and Torricelli Amendment, as well as in programs sponsored by the Government of the United States known, among others, as Democracy for Cuba. The programs and activities carried out by Mr. Gross were aimed at violating State control and legal channels of communication. 21. In its response, the Government of Cuba provides examples of the activities developed by Mr. Gross and the objectives pursued, and reports that said person entered Cuba numerous times as a tourist, which was incompatible with the activities he was carrying out. 22. The Government denies that Gross was detained in a high-security prison, specifies the criminal compounds in which he was detained, and points out that the Government of the United States was continuously informed of the substantive aspects of the trial through the appropriate diplomatic channels. 23. The Government of Cuba reports that Mr. Gross was detained on December 3, 2009 and charged with crimes against State security, and that he was notified in Spanish and English of the charges against him, which are classified under Cuban law as acts against the independence or territorial integrity of the State, as described in Article 91 of the Criminal Code. It adds that all of the rights provided for under Cuban law for persons being tried were respected in accordance with public international law. 24. Among other rights, it notes that Mr. Gross always had an interpreter and legal services provided by a lawyer hired by his family. He had access to all of the evidence of the investigation and was able to present his own. Members of his family, United States lawyers, and consular officials from the United States were present at the trial, which was open and public. 25. It adds that the tribunal that tried this person was composed of several judges and fully independent and impartial. The accused enjoyed the right to file an appeal before the People s Supreme Tribunal in response to the guilty sentence. In this court of cassation, he enjoyed the same rights as all defendants; he participated in his own defense and in his final intervention he expressed his appreciation for being able to explain his position to the judges. The sentence of the court of first instance was upheld.

6 26. The Government maintains that there was respect for the presumption of innocence and that the evidence was presented and acted upon in accordance with the law, and that the burden of proof was the responsibility of the Ministry of Interior. 27. The Government denies that Mr. Gross is suffering from bad prison conditions, and points out the medical care he receives, reporting that he is imprisoned in a military compound with comforts. He has been visited by important political persons, including former President of the United States of America James Carter and President Leonel Fernández of the Dominican Republic, as well as representatives of the Jewish communities of the United States and Cuba. 28. With regard to the arrest warrant, it declares that the allegation is wrong that said warrant was issued by the People s Provincial Tribunal of Justice of Havana, and reports that it was in fact issued by the Office of the Attorney General. Comments from the Source 29. In its comments regarding the governmental response, the source maintains that said response is more a criticism of the United States of America s policy toward Cuba, than a refutation of the allegations cited in the original communication. It declares that the activities carried out by Mr. Gross constitute an exercise of the rights which are fully considered by Article 19 of the Universal Declaration of Human Rights and Article 19 of the International Covenant on Civil and Political Rights (ICCPR). Said person s activities were limited to facilitating Internet access to members of Cuba s Jewish communities, making possible their exercise of their right to receive and provide information. The fact that Mr. Gross was a subcontractor of a United States Government agency is irrelevant to the case. 30. With regard to the judicial proceedings, the source reiterates that there were numerous violations of the right to due process and cites in this regard that: (a) pre-trial detention lasted 14 months; (b) the court that tried this person was neither independent nor impartial and convicted him to 15 years in prison after a trial lasting only two days; (c) Mr. Gross was convicted by virtue of a national security law that is excessively broad and vague in its terms and definitions and has been repeatedly utilized against political activists, dissidents, journalists, human rights defenders, and many others whose legitimate activities have been perceived as a threat by the Cuban Government. 31. The source claims that the Government s response contains numerous declarations that contradict the evidence, as well as inaccurate facts. The governmental response makes a series of references to facts and situations which do not figure in the judicial sentence and which the source considers to be irrelevant to the mandate of the Working Group. According to the source, the sentence of the court demonstrates that the Government itself was previously aware of Mr. Gross activities and that said person was working to facilitate the access of members of the Jewish community to the Internet. That is a completely legitimate action in accordance with Articles 19 of the Universal Declaration and International Covenant on Civil and Political Rights.

7 32. Mr. Gross was detained for 14 months while awaiting trial and spent 16 months in detention until being convicted. This implies a judgment carried out in an unreasonable period of time and without having been released on bail during the proceedings. While the source acknowledges that what constitutes a reasonable period of time is not a very precise concept, this is a long period of time in accordance with the jurisprudence of the Working Group and Human Rights Committee. 33. The source maintains that Article 107 of the Code of Criminal Procedure establishes that investigations must be completed within a maximum timeframe of 60 days, which may be extendable up to 180 days by request of the Solicitor. In Mr. Gross case, there was no special request formulated by the Solicitor and no reference was made to the fact that special circumstances surrounded the case. Therefore, the long period of pre-trial detention is also irregular in light of Cuba s domestic law. 34. Mr. Gross was convicted in virtue of Article 91 of the Criminal Code relating to acts against the independence or territorial integrity of the State. Said article establishes sentences of up to 20 years in prison or even capital punishment for any person who, in the interests of a foreign State, executes an act with the goal of harming the independence or territorial integrity of the State. This rule has been widely noted by the principal human rights groups as being the principal provision utilized to suppress dissidence in Cuba. The source recalls that the Working Group s jurisprudence includes cases in which the Group has considered to be arbitrary the detention of persons convicted through the application of this provision, and has even considered that by applying it, the State has violated its commitments under international standards. 35. The petition s consideration that Cuba s Judicial Branch is neither independent nor impartial has been shared, according to the source, by the Inter-American Commission on Human Rights (IACHR). The Inter-American Commission observes a subordination of the judicial courts to the Council of State, presided over by the head of State, which denotes a dependence of the Judicial Branch on the Executive Branch, and in turn affects the guarantees of due process and the enjoyment of human rights. 36. In Mr. Gross case, the observations formulated by the tribunal and court of appeals illustrate that his trial was neither independent nor impartial. Specifically, according to the source, the opinions of the courts reflect the public political declarations of the Executive Branch of the Government of Cuba regarding the policies of the United States. In the opinion of the source, Mr. Gross was declared guilty by the simple fact of being a citizen of the United States of America who worked as a subcontractor of the Government of said country. The Cuban Government (as reflected in the resolution of the court) simply made a series of conclusive declarations regarding Mr. Gross alleged crimes, but did not present any evidence that could demonstrate its charges of subversion. Given that the Tribunal did not respect the principle of presumption of innocence, the source concludes that the sentence constitutes a direct violation of Article 14(2) of the International Covenant on Civil and Political Rights. 37. As indicated in the original communication, Mr. Gross is now detained in a cell of a military hospital. Nonetheless, his state of health is not normal. In fact, he has lost 105 pounds in weight. An independent review carried out by a radiologist of a tumor he [Mr.

8 Gross] has on his back concluded: [I]t is my opinion that Mr. Gross has a potentially lifethreatening medical problem that has not been adequately evaluated to modern medical standards. 38. The source also refutes the Government s affirmation that Mr. Gross is also responsible for other crimes regarding which he has never been charged or tried, much less convicted. The Government declares the following: (a) Mr. Gross evaded the regulatory and legal framework of the country s communications system... such that said communications could not be controlled by Cuban authorities ; (b) Mr. Gross brought in the equipment in a covert fashion, including some apparatus for military use [sic]; (c) by entering Cuba on tourist visas, Mr. Gross violated Cuban law; (d) third persons brought in some of the equipment for Mr. Gross, which he never claimed as being his. 39. According to the source, the customs officials inspected the equipment brought in by Mr. Gross every time and authorized his entrance after seeing what it involved. No one has been charged, tried, or convicted for any of these facts. Deliberation 40. The Working Group has repeatedly maintained in its Opinions that it does not constitute an additional instance to those established by each country s domestic law for resolving a conflict in which one person has been imprisoned. Its mandate consists of opining on whether the detention is or is not arbitrary. To that end, it must study whether or not the guarantees to fair procedure and due process have been respected. 41. Thus, in its Opinion No. 33/2010 (Mexico) regarding the detention of Mr. Raúl Hernández Abundio, the Working Group repeated what it had already expressed in its Opinion No. 25/2008 (Mexico) regarding the detention of Mr. Olivier Acuña Barba, with respect to whether or not the order of committal to trial or the final sentence in a trial for a common crime (and not for a crime in which the action that has been impugned is the exercise of one of the rights mentioned in Category II from among those considered by the Group) fits the elements of conviction found in the dossier, is not an analysis which exists within the competence of the Group. It would be, for example, if the Tribunal had refused to admit or act upon evidence presented by the defendant, which would imply a possible infringement mentioned in Category III, and the detention could be arbitrary. 42. The Group is confronting the same circumstances in this case. Evaluating whether the fact of bringing technical communications and computer equipment into Cuba from the territory of the United States of America to enable wireless access to the Internet is an act carried out in the exercise of the human right to the freedom of opinion and expression in terms of the right to receive and impart information or if, on the contrary, it entails the commission or preparation of crimes, including that of subversion, is not covered by the Working Group s mandate. The Working Group cannot consider whether the commission of the crime and/or counterrevolutionary purposes have or have not been proven. Category II should therefore by eliminated in this case. 43. By contrast, it is within the Working Group s competence to analyze if the person had the right to fair and impartial legal proceedings before an independent court. The

9 detention would be arbitrary if the court had rejected exculpatory evidence or admitted illegal evidence. 44. In order to begin its analysis as to whether the present case is situated within the framework of Category III utilized by the Working Group, the Group had to first take note that neither the Government nor the source dispute that Mr. Gross was able to enjoy many of his procedural rights, such as presenting evidence; cross-examining the witnesses for the prosecution; presenting his own defense witnesses; having legal counsel of his choosing; having had a period of time to prepare his defense; having had interpreters; declaring freely; as well as the fact that the trial was public and attended by observers from his country, family members, and friends of the accused, among others. 45. In addition, the Working Group notes that there are no differences in some of the objective facts in the case. Both the source as well as the Government accept that Mr. Gross was in Cuba for the purpose of working on a project named Para la Isla [ For the Island ] of an agency of the Government of the United States of America; that he acted under a contract of the firm Development Alternatives, Inc. to carry out a project jointly with USAID; that the bringing in of equipment for facilitating wireless connections to the Internet was legal; that Mr. Gross made five trips to Cuba as a tourist, always using his United States passport; and that he maintained relationships with Jewish communities in Cuba; among others. 46. However, there are serious differences between the parties with regard to the following points: firstly, as to whether the courts that tried Mr. Gross in the first and second instances were or were not independent and impartial. 47. In order to resolve this issue with the greatest possible degree of impartiality, the Working Group recalls the following: (a) In 2000, the Special Rapporteur on Violence against Women observed with concern that the National Assembly of People s Power has the authority to appoint and dismiss the People s Supreme Tribunal and the Attorney General and his/her substitutes; the Office of the Attorney General is subordinate to the National Assembly and to the Council of State; and the Attorney General is accountable for the performance of his/her duties to the National Assembly. Said constitutional provisions hinder the impartiality and independence of the judiciary (E/CN.2000/131, paragraph 67). The Government of Cuba, emphasizing that the people have chosen a socialist political system, rejected this assertion, which in its view was based on false information that had been fabricated by malicious sources or was based on fundamentalist ideological positions (E/CN.4/2000/131, p. 9). (b) The Committee against Torture had recommended in 1997 that the rules for organizing the judicial system be adjusted so as to accord with international standards (A/53/44, paragraph 118). (c) In 2007, the then-special Rapporteur on the Independence of Judges and Lawyers reminded Cuba that, in accordance with international standards, military courts in principle should not have jurisdiction to try civilians (A/53/44, paragraph 118).

10 (d) The former Personal Representative of the High Commissioner for Human Rights recommended that Cuba adjust its criminal procedure to the provisions of Articles 10 and 11 of the Universal Declaration of Human Rights (A/HRC/4/12, paragraph 35; E/CN.4/2006/33, paragraph 35; E/CN.4/2005/33, paragraph 36); [sic] E/CN.4/2004/32, paragraph 35). (e) According to the Special Rapporteur on the Right to Food, access to justice with regard to the right to food should be improved. The courts should have a mandate to examine human rights violations and an independent institution should be established and charged with processing complaints and providing reparations for infractions committed (A/HRC/7/5/Add.3, paragraph 79 (c)). In response to this communication, the Government of Cuba clarified that its inter-institutional system processes said complaints (A/HRC/8/4/Add.1, paragraphs ). 48. The aforementioned antecedents, emanating from reports from the non-conventional mechanisms created by both the former Commission as well as the current Human Rights Council, were compiled by the Office of the High Commissioner for Human Rights for the Working Group in charge of the Universal Periodic Review of Cuba (see document A/HRC/WG.6/4/CUB/2 dated December 18, 2008, paragraph 20). Said reports were considered in due course by the organs which established said mechanisms with no reservations or objections whatsoever. Consequently, the Working Group cannot ignore same. 49. By virtue of said antecedents, the Working Group cannot rule out the fact that the courts of first and second instance that tried Mr. Gross did not exercise the judicial function in an independent or impartial fashion. 50. The Working Group must also consider if the national security law and specifically its Article 91 fulfills the requirements of precision and certainty that authorize the application of a sentence. Illicit conduct, in accordance with criminal doctrine, must be perfectly described prior to the commission of the illicit act, in harmony with the provisions of Article 11 of the Universal Declaration of Human Rights. But that description must be precise, such that the potential criminal knows the limits between what is and is not considered criminal activity. The classification of a crime must contain all of the necessary elements for this. 51. In the opinion of the Working Group, the description of the punishable offense in Article 91 of the Criminal Code of Cuba does not fulfill the requirements of precision required for the criminal to know exactly what conduct is prohibited. In effect, said article, inserted among acts against the independence or territorial integrity of the State, within the section related to crimes against State security, provides that the one who, in the interests of a foreign State, executes an act with the purpose of harming the independence of the Cuban State or the integrity of its territory, shall incur in a sanction of imprisonment of 10 to 20 years or death. The vagueness of concepts such as executing an act ; in the interests of a foreign State ; [and] harming the independence of the Cuban State or the integrity of its territory do not satisfy the requirement of a rigorous description of punishable conduct.

11 52. The Working Group must next examine if there were violations committed in the judicial process, such as an excessively long duration of pre-trial detention. Remanding in custody, in accordance with public international law, should not be the general rule, but rather, the exception. The Working Group has generally considered that this rule is of the greatest importance and the best sign of respect for the principle of the presumption of innocence. The tribunal, in the opinion of the Group, should have granted Mr. Gross the benefit of being released on bail, notwithstanding the ability to adopt the necessary guarantees for ensuring Gross appearance in the proceedings of the trial. Mr. Gross was detained for 14 months while awaiting trial, and could have awaited same in a situation of being free on bail. 53. On March 11, 2011, Mr. Gross was sentenced to 15 years in prison after a trial which lasted only two days. The short duration of the trial of only two days does not per se constitute a violation of a human right, unless during that period the defendant had been denied the possibility to present or act upon evidence or to have access to evidence for the prosecution, or if there had been malicious intent, none of which has been denounced in the communication from the source. The consideration of what a reasonable period of time for being tried is always subject to the real possibility of the investigation of the deeds which are considered to be crimes. 54. Article 107 of the Law on Criminal Procedure of Cuba, according to the source, establishes that investigations must be completed within a maximum timeframe of 60 days, which may be extendable up to 180 days by request of the Solicitor. In Mr. Gross case, no special request was formulated by the Solicitor and no mention is made of the existence of special circumstances surrounding this case. In the opinion of the Working Group, no human right contained in the Universal Declaration has been violated, and it should be recorded that the defendant enjoyed the right to defend himself as well as having had the necessary amount of time to prepare his defense, a period of seven days. 55. The allegation related to Mr. Gross having been declared guilty for the simple fact of being a citizen of the United States of America who worked for a subcontractor of the Government of said country, which would make the case subject to Category V of the Work Methods of the Group, also does not appear to be justified by the communication from the source. 56. In conclusion, the Working Group considers that the courts of first and second instance that tried Mr. Gross did not exercise their function in an independent or impartial manner. Article 91 of the Criminal Code does not satisfy the requirement of rigorous description of punishable conduct, which lends an arbitrary nature to the detention. The tribunal should have granted Mr. Gross the benefit of being released on bail while awaiting trial, instead of keeping him in detention for more than14 months. Decision 57. In view of the above, the Working Group issues the following Opinion: (a) The imprisonment of Mr. Alan Phillip Gross by the justice system of the Republic of Cuba is arbitrary, due to the circumstances mentioned in paragraph 56 of this Opinion, for

12 having violated the human rights recognized in Articles 9, 10, and 11 of the Universal Declaration of Human Rights; and it corresponds to Category III of the categories applied by the Working Group for consideration of detention cases which have been submitted to it; (b) The Working Group considers that there are not due grounds for the allegations relating to the human right to freedom of expression having been violated. Nor does the Working Group consider the validity of the arguments of the source related to the duration of remanding in custody or the entire duration of the trial; (c) By virtue of what has been set out, the Working Group asks the Government of Cuba to immediately release Mr. Alan Phillip Gross; (d) The Working Group also recommends to the State that it consider modifying the Criminal Code, so as to classify crimes and describe criminal conduct in a precise and unequivocal fashion; (e) The Working Group also recommends to the Government that it consider the possibility of becoming a State Party to the International Covenant on Civil and Political Rights. [Adopted on November 23, 2012] GE

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