200.          The petitioners in this case represent a subgroup of approximately 335 of the 125,000 Cubans who arrived as part of the Mariel "Freedom Flotilla".  At the time the petition in this case was filed, all of the 335 petitioners were under detention by the State, some since their arrival in 1980, and others who had been released but were subsequently detained due to crimes they committed or violations of the terms of their parole while released.


201.          The 1,800 Mariel Cubans who continued to be detained by the State were initially placed in U.S. Bureau of Prison facilities in Talladega, Alabama, Leavenworth, Kansas, Lewisburg, Pennsylvania, McNeil Island, Washington, Oxford, Wisconsin and Atlanta, Georgia.  Subsequently, in March 1981, the State decided to hold most of the detained Mariel Cubans, save those with medical or mental health problems, in one location, the U.S. Penitentiary in Atlanta, which had up to that time been scheduled to close.  As of August 1981, approximately 1,844 Mariel Cubans remained in detention, most in Atlanta.


202.          In late 1986 and early 1987, the State decided to transfer from the Atlanta Penitentiary to the Oakdale Detention Facility in Louisiana Mariel Cubans who were considered less problematic or who were likely candidates for release to half way houses. Consequently, as of November 1987 approximately 1,394 Mariel Cubans were held in Atlanta, and approximately 987 Mariel Cubans were detained at Oakdale.  In November and December 1987, however, serious disturbances occurred in the Atlanta and Oakdale facilities, following which the State decided to re-locate the Mariel Cubans throughout other Bureau of Prison facilities.


203.          Throughout the period since the arrival of the Mariel Cubans, various Mariel Cubans who had been released have committed crimes or have breached the conditions of their parole, as a consequence of which they have been brought back into Bureau of Prisons and INS detention. Other Mariel Cubans have been screened and released under the Status Review Plan implemented by the Attorney General between July 1981 and February 1985, and subsequently under the Cuban Review Plan from 1987 to the present, as well as pursuant to the generally-applicable INS immigration parole procedures.  For example, the State estimates that as of February 1985 when the Status Review Plan was cancelled, approximately 2,040 detained Cubans had been paroled under that Plan. Consequently, the number of Mariel Cubans in custody has fluctuated, and continues to fluctuate, as a result of several factors.  The following chart sets out the number of Mariel Cubans in State custody between 1987 and 1994, based upon the State's statistics:





BOP Detention

INS Detention



































204.          With respect to Mariel Cubans who have remained in continuous detention since 1980, the State estimated this number in its January 1988 observations to be between 100 to 150. It appears that this figure applied to the total population of Mariel Cubans in the custody of the State at that time and not exclusively to the petitioners on whose behalf the present petition was lodged.  Subsequently, in its March 1999 observations, the State indicated that all of the Mariel Cubans who are the subject of the petitioners' petition had been paroled into the United States at least once and therefore could not be said to have been continuously detained.  It remains unclear, however, how long each of the petitioners had been held by the State after 1987 and prior to their release.


205.          Rather, the only detailed information in this regard may be drawn from the particulars provided by the State on the 29 petitioners, described in Part III(B)(3)(e) of this Report. More particularly, the information provided by the State in its March 1999 observations respecting 18 of the petitioners indicates that of these: 4 had not been released from detention since 1988 and therefore had been held for approximately 11 years; at least 2 had been detained by the INS continuously since 1994 and therefore for at least 5 years; and at least 4 others had been held in INS detention since 1996 and therefore for at least 3 years.  During their detention, all of these petitioners appear to have had regular access to the State's parole procedures, but have either been refused release, or have refused to participate in those procedures.


206.          Finally, it appears that most of the petitioners have been incarcerated in federal, state or local penal facilities for the duration of their detentions.


2.       Has the State complied with the American Declaration in the manner in which it has detained the petitioners?


207.          The petitioners have contended in their petition that the State is responsible for violations of Articles I, XVII, XVIII, XXV and XXVI of the Declaration in connection with the manner in which the they have been detained by the State since their arrival in the United States in 1980.


a.       Articles I and XXV – The Rights to Liberty and Protection from Arbitrary Arrest or Detention


            208.            Articles I and XXV of the Declaration provide as follows:


Article I. Every human being has the right to life, liberty and the security of his person.



Right to life, liberty and personal security.


Article XXV. No person may be deprived of his liberty except in the cases and according to the procedures established by pre-existing law.

Right of protection from arbitrary arrest.



No person may be deprived of liberty for nonfulfillment of obligations of a purely civil character.



Every individual who has been deprived of his liberty has the right to have the legality of his detention ascertained without delay by a court, and the right to be tried without undue delay or, otherwise, to be released. He also has the right to humane treatment during the time he is in custody.



            i.          Governing Principles


209.          The right to liberty under Article I of the Declaration is, as with correspondent provisions of other international human rights instruments, concerned with the exercise of physical freedom.[73] As discussed above, this right, as with all others under the Declaration, applies to every individual falling within the authority and control of the State and must be afforded to all such persons without distinction in accordance with the right to equal protection of the law under Article II of the Declaration.[74]


210.          At the same time, Article XXV of the Declaration clarifies that the right to liberty is not absolute, but rather permits states to deprive individuals of their liberty under certain conditions.  Prevailing authorities, including the Commission’s own jurisprudence, suggest that the circumstances of such deprivations of liberty are not limited to those involving the investigation and punishment of crimes, but also extend to other areas in which states may administer authority.  States may, for example, detain individuals for the purpose of controlling the entry and residence of aliens in their territories[75] or for reasons relating to physical or mental health, [76] and, during occupations governed by international humanitarian law, may intern the civilian population as a safety measure and for imperative reasons of security.[77]  In all such cases, however, any deprivation of an individual’s liberty must be informed by the norms prescribed under Article XXV of the Declaration.


211.          The Commission notes in this connection that Article XXV of the Declaration places the "lawfulness" of detention, including the question of whether a procedure established by pre-existing law has been followed, in reference essentially to domestic law, and prescribes the obligation to conform with substantive and procedural rules of domestic law. It must additionally be considered, however, that Article XXV also requires substantive and procedural rules of domestic law themselves to conform with the fundamental purposes underlying Article XXV, namely to protect individuals from arbitrary deprivations of their liberty.[78]  This in turn requires not only that a deprivation of liberty be shown to conform with the requirements of applicable domestic law, but also that the domestic law itself be fair, predictable, and therefore not arbitrary.[79]


212.          Correspondingly, in evaluating the propriety under the Declaration of instances of preventative and other detention, Article XXV specifies three fundamental requirements that must be satisfied in such circumstances: first, preventive detention, for any reason of public security, must be based on the grounds and procedures set forth in law; second, it may not be arbitrary; and third, supervisory judicial control must be available without delay.[80] In situations of continuing detention, this necessarily includes supervision at regular intervals.[81]  

213.          The Commission wishes to emphasize that the notion of fairness is particularly fundamental to ensuring that a process for the deprivation of liberty is not rendered arbitrary contrary to Article XXV of the Declaration. While the particular requirements may vary depending upon the circumstances of a particular case, including, for example, the capabilities of the detainee, detention review proceedings must at a minimum comply with the rules of procedural fairness.  These rules require, inter alia, that the decision-maker meets currently prevailing standards of impartiality, that the detainee is given an opportunity to present evidence and to know and meet the claims of the opposing party, and that the detainee be given an opportunity to be represented by counsel or other representative.[82] 


ii.       Are the petitioners' Deprivations of Liberty Arbitrary?


214.          In the present case, there appears to be no dispute that the petitioners are at present, or were at some previous point, detained by the State by reason of their status as “excludable aliens” under the Immigration and Naturalization Act. According to the State, virtually all of the Mariel Cubans, including the petitioners, have been considered excludable due to lack of proper documentation, although certain detainees are also said to have serious mental health problems, or committed or are suspected to have committed certain criminal offenses in Cuba or in the United States, which may also constitute grounds for excludable status.[83]  While aliens in this class would normally be removed to their country of origin,[84] this has not occurred in the present case because the Government of Cuba has refused to accept the return of the petitioners and other excludable Mariel Cubans. Further, while most excludable Mariel Cubans have been released pursuant to the Attorney General's "parole" authority under the Immigration and Naturalization Act,[85] the petitioners have been in the past or are currently detained by the State because they have failed to satisfy the parole authority requirements, which in turn relate to such considerations as whether the individual is likely to remain "nonviolent" and whether he or she is likely to pose a "threat to the community" if released.[86]


215.          It appears from the record, therefore, that the petitioners have been deprived of their liberty by the State, and that their detention has ostensibly been of an administrative nature relating to their immigration status.[87]  The Commission is therefore satisfied that the provisions of Article XXV of the Declaration apply to the petitioners.

216.          Further, the Commission considers that the circumstances of the petitioners’ detentions, including the law which is alleged to authorize the detentions and the mechanisms for ascertaining the legality of the detentions, fail to comply with the requirements of Articles I and XXV of the Declaration. Fundamentally, the State's domestic law fails to recognize any right to liberty on the part of the petitioners contrary to Article I of the Declaration.  This failure has in turn undermined the propriety of the law that purports to authorize the petitioners’ detention, as well as the mechanisms available to ascertain the legality of their detentions.


217.          In particular, the provisions of the Immigration and Naturalization Act under which the petitioners' detentions have been effected provide the Attorney General with largely unrestricted authority to detain excludable aliens pending their removal, subject to the Attorney General’s discretionary authority to "parole" the aliens into the United States.[88] Further, the physical presence of an excludable alien in the United States, including his or her release into the U.S. under the Attorney General’s parole authority, does not change his or her status as excludable.[89] As a consequence, an excludable alien has no right under domestic law to be at large in the United States and may be removed from the United States at any time, regardless of the nature or length of the alien's physical presence in the State’s territory.


218.          The U.S. courts in turn have interpreted this legislation as conceptually placing excludable aliens always at the border seeking admission and as never having entered the United States.[90]  This construction, together with the domestic courts’ characterization of the Mariel Cubans’ detention as administrative rather than criminal in nature,[91] has resulted in the absence on the part of the petitioners of any liberty, due process, or fair trial protections under the domestic constitution in connection with their detentions.[92]  It has also led the U.S. courts to conclude that the Executive may detain excludable aliens such as the petitioners indefinitely in the absence of an explicit statutory limit to the length of time for which such aliens may be held.[93]


219.          The Commission considers that the domestic law upon which the petitioners’ detention was based, as described above, is fundamentally antithetical to the protections prescribed under Articles I and XXV of the Declaration, because it fails to recognize any right to liberty on the part of the petitioners notwithstanding their physical presence within the State’s territory; indeed, it prescribes a presumption of detention rather than a presumption of liberty and is therefore incompatible with the object and purpose of Articles I and XXV of the Declaration, namely to secure the liberty of the individual save in exceptional circumstances justified by the state as lawful and non-arbitrary.  Consequently the Commission considers that the treatment of the petitioners in this manner under domestic law is per se inconsistent with their right to liberty under Article I of the Declaration as well as the right not to be arbitrarily deprived of liberty under Article XXV of the Declaration.


220.          Moreover, the Commission has found that the procedures by which the petitioners' detentions have been effected, and those by which the legality of their detentions is ascertained, predicated as they are on the assumption that the Executive has nearly unfettered discretion to detain the petitioners indefinitely, are not consistent with the requirements prescribed under Article XXV of the Declaration, in two principal respects.


221.          The Commission first considers that the procedures by which the petitioners have been or continue to be deprived of their liberty are arbitrary, for four principal reasons: they fail to define with sufficient particularity the grounds upon which the petitioners have been deprived of their liberty; they place the onus upon the detainee to justify his or her release; they are subject to a degree of discretion on the part of officials that exceeds reasonable limits; and they fail to provide for detention reviews at reasonable intervals.


222.          More particularly, a review of the State’s domestic legislative and administrative standards and the manner in which they have been applied reveals ambiguities that deprive the law of the precision necessary to ensure consistency in decision-making and to enable the petitioners to fairly and effectively defend his or her right to be released.[94]  The Immigration and Naturalization Act, for example, provides that an excludable alien may be released under the Attorney General’s parole authority only where there are “emergent reasons” or where release is “strictly in the public interest”, without further elaboration in the text of the Act.[95]  Such conditions are, in the Commission’s view, patently imprecise and, moreover, fall foul of the fundamental principle that restrictions on fundamental rights, where permissible, must be reasonable and proportionate to the end sought, and may not be such as to deprive a right of its essence.[96]  By codifying a general presumption against release, and doing so in such broad, indistinct and discretionary terms, the Commission cannot reach any other conclusion but that the law authorizing the petitioners’ detentions is ambiguous.


223.          While the terms of the Status Review Plan and its successor Cuban Review Plan endeavor to provide further guidance as to the grounds upon which the Mariel Cubans in particular may be released from detention, they prescribe conditions that are, in the Commission's view, unduly speculative and susceptible to varying and potentially inconsistent interpretations, and in any event are by reason of their discretionary nature incapable of properly rectifying the deficiencies in the standards of release under the Immigration and Naturalization Act.   These conditions include, for example, the requirement that the Director of the Cuban Review Plan or a review panel to be satisfied that a detainee is “presently a non-violent” person, is “likely to remain non-violent”, and is “not likely to pose a threat to the community following his release”.  These conditions are on their face vague, speculative and open to various interpretations, and yet the regulations fail to provide clear or detailed criteria to define when a person is considered to satisfy these broad standards. In particular, the Regulations do not prescribe specific factors defining when a detainee may be considered “violent” or a “threat to the community”, much less how future conduct in this regard is to be predicted.  At most, the regulations prescribe a variety of factors that should be "weighed" in considering whether to recommend further detention or release on parole, including the number of disciplinary infractions or incident reports received while in custody and the detainees past history of criminal behavior.  The Commission considers that standards of this nature give rise to an unacceptable risk of inconsistency in decision-making. They also deprive detainees of sufficient notice of the case they must meet in order to justify their release. 


224.          The risk of inconsistency and uncertainty presented by these conditions is substantiated to some degree by the procedural histories of certain of the 29 petitioners in respect of whom the State provided detailed information.  It appears, for example, that certain petitioners have been denied parole based to a significant extent upon their criminal histories, while other petitioners having comparably more serious criminal histories for similar offenses have been released, and the State’s descriptions of the cases do not refer to any factors that would appear to justify these petitioners’ dissimilar treatment.[97]


225.          Moreover, regardless of any determination reached by the Director or a review panel on consideration of the legislative criteria in the circumstances of a particular case, it constitutes a recommendation only; whether a particular detainee is ultimately released remains entirely in the discretion of the Associate Commissioner for Enforcement or his or her designate, with no legislatively-prescribed criteria for the exercise of his or her discretion.[98]  Similarly, the Associate Commissioner for Enforcement or his or her designate may, on his or her discretion, withdraw approval for parole for any detainee prior to release when, in his or her opinion, "the conduct of the detainee, or any other circumstance, illustrates that parole would no longer be appropriate."[99]  Further, even in the event that the Associate Commissioner for Enforcement grants parole to a detainee, the detainee cannot be released unless a suitable sponsorship or placement has been found for him or her.[100]


226.          In this connection, the Commission recognizes that the principle that fundamental rights may not be restricted except by law does not necessarily exclude the use of discretion in applying the law.[101]  However, a legislative procedure by which individuals are deprived of their liberty cannot, in the Commission's view, be considered to be sufficiently precise, fair and predictable as required under Article XXV of the Declaration, when that outcome of that procedure is ultimately dependent upon the largely unfettered discretion of the very officials who are responsible for carrying out those detentions.[102] In such circumstances, the Commission considers that the discretionary power left to the public authorities to deprive the petitioners of their liberty are so wide that they exceed acceptable limits.[103]


          227.          With respect to the requirement that a “suitable sponsorship or placement,” be found for a detainee prior to his or her release, the Commission is particularly concerned with respect to the case of petitioner Lazaro Artilles-Arcia, who was convicted in 1985 for a sexual offense against a child.  According to information provided by the State, although Mr. Artilles-Arcia was approved for release on parole in 1988, this decision was rescinded because “no sponsorship or halfway house program could be found that was willing to accept placement."  The Commission considers it entirely unacceptable that an individual would be held in detention for over 10 years, in circumstances in which the Executive has deemed him releasable under its own criteria, but has failed to grant him his liberty based upon the discretionary judgments of sponsorship or halfway house programs as to which detainees should be given placements.


228.          The Commission also considers that the risk of arbitrariness posed by the Cuban Review Process is exacerbated by the fact that the onus falls squarely upon the detainee to justify why he or she should be released from detention, which onus becomes increasingly onerous the longer the detainee is held in detention.[104]  The Commission has previously warned against procedures in which the burden upon a detainee to adduce new evidence of a change of circumstances renders the review process increasingly pro forma, such that continuation of his or her detention no longer justified as a security measure but effectively converted into a penalty imposed absent due process.[105] A review of the circumstances of the 29 petitioners referred to above reveals indicia of this very development: the reviews are conducted based upon a presumption of detention, which the detainee must rebut based upon evidence of a bona fide change in his or her circumstances.[106] This burden is further aggravated by the length of time for which many the petitioners have been held in detention,[107] some of whom have not been released since 1988 or before.


229.          A further indicia of arbitrariness in the procedures by which the petitioners have been deprived of their liberty detention stems from the fact that detention reviews are varied out infrequently.  According to the Cuban Review Plan, for example, in the situation of detainees whose cases have previously been reviewed and who have remained in detention, a subsequent review is to commence within one year of a refusal to grant parole, unless a shorter time is specified by the Director.[108]  While no specific time period for the review of continuing detentions is prescribed under the Declaration, the Commission considers that in all instances of preventative and other detention the period of review should be reasonable in the circumstances of each individual case.


230.          Requiring reasonable periods of review for continuing detentions is consistent with the principle of effectiveness,[109] as well as with the object and purpose of the Declaration,[110] which, in the context of Article XXV of the Declaration, is clearly to protect individuals against arbitrary detention by subjecting the responsible authority to immediate, regular and effective supervision.  A reasonableness requirement for detention review is also consistent with the practice of other states in comparable circumstances.[111] In light of the circumstances of the petitioners’ detentions, including the dynamic nature of the grounds for their detention, the punitive conditions in which the petitioners have been detained, and the absence of an explanation on the record for the length of the review period prescribed, the Commission considers that detention reviews that are conducted every 12 months exceed a reasonableness standard.[112]


231.          Based upon the foregoing considerations, therefore, the Commission considers that the law and procedures by which the petitioners have been deprived of their liberty are arbitrary and do not conform with the fundamental requirements of Articles I and XXV of the Declaration.


iii.       Has the State Afforded the petitioners an Effective Right to have the Legality of their Detentions Ascertained by the Courts?


232.          As indicated above, Article XXV of the Declaration includes among its fundamental elements the requirement that judicial control over detention be available without delay and, in situations of continuing detention, that the detention be the subject of regular reviews. In this connection, the Commission cannot overemphasize the significance of ensuring effective supervisory control over detention as an effective safeguard, as it provides effective assurances that the detainee is not exclusively at the mercy of the detaining authority.[113]


233.          Based upon the limited nature and scope of judicial control that the courts have exercised in ascertaining the legality of the petitioners' detentions in the present case, however, the Commission cannot conclude that the State has satisfied this requirement under Article XXV of the Declaration. In the circumstances of the present case, the State’s courts have accepted as valid the "entry fiction" upon which the petitioners’ detentions are founded, and moreover, have on this basis denied the petitioners and other excludable aliens constitutional protections, including the right to liberty and the right not to be deprived thereof except by due process of law.  Accordingly, any judicial review of the petitioners’ detentions, like the schemes under the Status Review and Cuban Review Plans, have been predicated on the assumption that the petitioners have no right not to be detained, whether indefinitely or otherwise.  In this context, the courts have limited their role to considering the question of whether the INS followed its procedures applicable to the parole of the Mariel Cubans.[114]


234.          Even within this narrow purview of judicial oversight, the domestic courts have determined that their scope of review is not the traditional "abuse of discretion" standard, but rather is limited to ascertaining whether the Attorney General has advanced a "facially legitimate and bona fide reason" for his decision to deny parole and continue to detain a Mariel Cuban.[115]


235.          The Commission cannot consider a review of this nature and scope to be sufficient to effectively and properly guarantee the rights under Articles I and XXV of the Declaration. Rather, in respect of individuals falling within the authority and control of a state, effective judicial review of the detention of such individuals as required under Article XXV of the Declaration must proceed on the fundamental premise that the individuals are entitled to the right to liberty, and that any deprivation of that right must be justified by the state in accordance with the principles underlying Article XXV, as outlined above. In other words, it must address not only compliance with the law, but the quality of the law itself in light of the fundamental norms under the Declaration.


          236.          Based upon the foregoing analysis, the Commission finds that the State has detained the petitioners in violation of their rights under Articles I and XXV of the American Declaration.  



b.       Articles II, XVII and XVIII – Rights to Equality, Recognition of Juridical Personality and a Fair Trial


237.          Articles II, XVII and XVIII of the Declaration provide as follows:


Article II. All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor.

Right to equality before law.


Article XVII. Every person has the right to be recognized everywhere as a person having rights and obligations, and to enjoy the basic civil rights.


Right to recognition of juridical personality and civil rights.


Article XVIII. Every person may resort to the courts to ensure respect for his legal rights. There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights.

Right to a fair trial.


          238.          The notion of equality before the law set forth in the Declaration relates to the application of substantive rights and to the protection to be given to them in the case of acts by the State or others.[116]  Further, Article II, while not prohibiting all distinctions in treatment in the enjoyment of protected rights and freedoms, requires at base that any permissible distinctions be based upon objective and reasonable justification, that they further a legitimate objective, regard being had to the principles which normally prevail in democratic societies, and that the means are reasonable and proportionate to the end sought.[117] 


239.          In the immigration context in particular, the Commission recognizes that it is generally regarded in democratic societies as appropriate for states to afford aliens treatment that is distinct from that enjoyed by others within the State’s jurisdiction to, for example, control aliens' entry into and residence in their territory.[118] Consistent with the principles underlying Article II of the Declaration, however, any such distinctions must be shown by the State to be reasonable and proportionate to the objective sought in the circumstances.  Regard should also be given to the fact that one of the objectives in formulating the Declaration was to assure as fundamental the “equal protection of the law to nationals and aliens alike in respect to the rights set forth in the Declaration.”[119] 

240.          In the present case, the foregoing analysis makes plain that the petitioners have, like other excludable aliens present in the United States, been subjected to a legal and procedural regime in relation to their deprivations of liberty that is fundamentally distinct from that applicable to other individuals falling within the State’s authority and control: it has denied the petitioners any recognition of a right to liberty and, as concluded above, has denied them effective protection from arbitrary deprivations of their liberty, contrary to Articles I and XXV of the Declaration.  The basis of this distinction is the petitioners’ immigration status under the State’s domestic law. 


241.          In the Commission’s view, based upon the record in this case, the petitioners’ treatment in this regard has not been shown to be either reasonable or proportionate. The principal justification proffered by the State for this distinction is, as the Commission understands it, the concern that if the State was forced to release all excludable aliens into its territory, it would "allow states to exile their unwanted-but-not-dangerous nationals knowing that they would have to be released into the communities of other states regardless of their legal status as excludables."  While the Commission does not doubt the bona fides of the State’s concerns in this respect, such an assertion, without more, cannot justify the petitioners’ treatment as reasonable.  Not only does this justification presuppose that affording the petitioners a right to liberty would inevitably require the State to release them into its society, a proposition that does not follow from the terms of the Declaration as interpreted by this Commission, but the State has offered no evidence which would suggest that the legal status of excludable aliens under U.S. law would have any discernable effect on the emigration policies of other countries. Consequently, the Commission does not consider the petitioners’ distinctive treatment under the State’s domestic immigration law to be reasonable, based upon the record before it.


242.          The Commission is also not satisfied that the petitioners’ treatment in this manner has been shown to be proportionate to the objective sought by the State in imposing the distinction.  The Commission fully appreciates the State’s prerogative in regulating access to its territory by aliens, and recognizes that this may necessitate the imposition of controls over the physical freedom or movement of individuals seeking such access in accordance with the State’s laws.  As is apparent from the Commission’s analysis herein, however, the American Declaration, like other international human rights instruments, does not prescribe an absolute right to liberty. Rather, the Declaration permits deprivations of the right to liberty, potentially on an extended basis, subject to the requirement that such deprivations are not arbitrary and are subject to immediate and regular review in accordance with the requirements under Article XXV of the Declaration. Further, the State has offered no clear justification as to why the circumstances of the petitioners cannot be accommodated within this regime, but rather must be deprived of their right to liberty under law in its entirety and subjected to the largely unfettered discretion of the Executive respecting the duration of their detention.  The Commission therefore considers the petitioners’ treatment as excludable aliens under the State’s law to be disproportionate, and also for this reason inconsistent with Article II of the Declaration.


243.          For reasons analogous to those described above, the Commission has concluded that the manner in which the petitioners have been deprived of their liberty by the State is inconsistent with Articles XVII and XVIII of the Declaration.  Both of these Articles are predicated upon the recognition and protection by a state of an individual’s fundamental civil and constitutional rights. Article XVIII further prescribes a fundamental role for the courts of a state in ensuring and protecting these basic rights, which role must be effective.[120]


244.          The Commission’s investigation on the merits of this case indicates, however, that none of the executive, legislative or judicial branches of the State’s government have recognized the petitioners’ right to liberty, nor have they afforded the petitioners with adequate or effective protection from deprivations of that right, in accordance with the terms of the American Declaration. While the petitioners have been extended the right to seek habeas corpus relief from the State’s courts, any relief available from the courts has been predicated upon the absence of any right to liberty on the part of the petitioners.  The Commission can therefore only conclude that the State has failed to secure the enjoyment by the petitioners of their basic civil rights, and that the petitioners have been denied effective protection by the State’s courts from acts of authority that have prejudiced their fundamental constitutional rights.


245.          Based upon the foregoing analysis, the Commission finds that the State is responsible for violations of the petitioners’ rights under Articles II, XVII and XVIII of the Declaration, in respect of the circumstances under which they have been deprived of their liberty.


          246.          In light of the Commission’s findings respecting the procedural fairness requirements inherent in Article XXV of the Declaration, and in the circumstances of the present case, the Commission does not consider it necessary to determine whether the circumstances of the petitioners’ detentions may violate Article XXVI of the Declaration.




247.          On October 5, 2000, the Commission adopted Report 85/00 pursuant to Article 53 of its Regulations, setting forth its analysis of the record, findings and recommendations to the State designed to repair violations of Articles I, II, XVII, XVIII and XXV of the American Declaration relating to the petitioners' deprivations of liberty.


248.          Report 85/00 was transmitted to the State on October 23, 2000, with a request that it inform the Commission within three months of that date of the measures that it had taken in compliance with the recommendations set forth to resolve the violations established.


249.          By means of a note dated January 29, 2001, the State requested a 90-day extension of the time to respond to Report 85/00 and requested that the Commission not publish the report in the interim.  The State based its request on the grounds that the case was extremely complex and controversial, had been under litigation for more than 13 years, and had produced extensive documentation.  The State also contended that roughly 18 months had elapsed since the last hearing and exchange of correspondence in the matter, and that the State needed additional time to analyze the Commission's Report and to formulate a response, given the fact that a new Administration was required to review the entire case.  The State indicated further that it required more time to locate and review the files of the 335 individuals alleged to have been included in the original petition in the matter in order to determine the present status of each individual.  The State emphasized in this respect that an overwhelming majority of the 335 individuals were no longer in custody, that as of early 1999 approximately 29 were in custody, and that those in custody could be considered for release by means of a continuous review process in accordance with the existing regulations.  Finally, the State indicated that it needed additional time "to determine the possible applicability to this case of Article 39 (Duplication of Procedures) of the Commission's Regulations."


250.          In a communication to the State dated February 1, 2001, the Commission indicated that it had considered the State's request and had decided to grant a further period of one month, expiring on March 1, 2001, to receive the State's response to Report 85/00.  The Commission did not receive a response from the State within the time limit prescribed by the Commission.




251.          The Commission, based upon the foregoing considerations of fact and law, and in the absence of a timely response from the State to Report 85/00, hereby ratifies its decision to admit the present case in respect of Articles I, II, XVII, XVIII, XXV and XXVI of the American Declaration. The Commission also hereby ratifies its conclusions that the State is responsible for violations of Articles I, II, XVII, XVIII and XXV of the Declaration in respect of the petitioners’ deprivations of liberty.


252.          In reaching these conclusions, the Commission has not disregarded the difficult situation faced by the State with the influx of Mariel Cubans in an abbreviated period of time, which was exacerbated by the refusal of the Government of Cuba to accept the return of its nationals.  Nor should the Commission be taken to discount the generosity exhibited by the State in accepting a vast majority of the Mariel Cubans into American society.


253.          That said, the Commission is mandated to ensure that the treatment received by the more limited, but by no means insignificant, number of Mariel Cubans who have been or continue to be held in detention for extended periods of time comply with the State’s fundamental obligations under the American Declaration. While the Commission's findings do not inevitably lead to the conclusion that all of the petitioners who currently remain in detention must be released, they do necessitate that each of them receive detention reviews in accordance with the above principles as soon as is practicable.


254.          Finally, the Commission wishes to reiterate its concern with respect to one particular aspect of the petitioners' conditions of detention. As indicated previously, the Commission observed during its on-site visits in this matter that Mariel Cubans did not have the benefit of certain programs of reform and rehabilitation that are otherwise available to inmates in circumstances of criminal detention.  This deficiency in turn has amplified the frustration experienced by many Mariel Cubans as a result of the ambiguity of their situation.  In this connection, the Commission urges the State to extend to those Mariel Cubans who continue to be detained, or who may be detained in the future, some minimal activities of personal development, such as those available to criminal offenders. Activities of this nature would permit the detainees to use their time constructively, and would also provide them with means by which to improve their personal circumstances with a view to seeking release from detention.




255.          In accordance with the analysis and conclusions in the present report,




1.          Convene reviews as soon as is practicable in respect of all of the petitioners who remain in the State’s custody, to ascertain the legality of their detentions in accordance with the applicable norms of the American Declaration, in particular Articles I, II, XVII, XVIII and XXV of the Declaration as informed by the Commission’s analysis in this report.


2.          Review its laws, procedures and practices to ensure that all aliens who are detained under the authority and control of the State, including aliens who are considered “excludable” under the State’s immigration laws, are afforded full protection of all of the rights established in the American Declaration, including in particular Articles I, II, XVII, XVIII and XXV of the Declaration as informed by the Commission’s analysis in this report.




256.          In light of the above, and in conformity with Articles 53(3) and 53(4) of the Commission's Regulations, the Commission decided to transmit this report to the State and to the petitioners' representatives, to publish this report, and to include it in its Annual Report to the General Assembly of the OAS.  The Commission, according to the norms contained in the instruments which govern its mandate, will continue evaluating the measures adopted by the United States with respect to the above recommendations until they have been complied with by the United States.


Done and signed in Santiago, Chile., on the 4 day of the month of April, 2001. (Signed): Dean Claudio Grossman, Chairman; Prof. Juan Méndez, First Vice-Chairman; Lic. Marta Altolaguirre, Second Vice-Chair; Dr. Hélio Bicudo, Dr. Peter Laurie, and Dr. Julio Prado Vallejo, Commissioners.


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[73] See Yoram Dinstein, Right to Life, Physical Integrity, and Liberty, in The International Bill of Rights - The Covenant on Civil and Political Rights 114,128 (Louis Henkin ed., 1981).

[74] Article II of the Declaration provides that "all persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor".

[75] See e.g. IACHR, Report on the Situation of Human Rights of Asylum Seekers within the Canadian Refugee Determination System, 28 February 2000, OEA/Ser.L/V/II.106 Doc. 40 rev. (hereinafter the "Canada Report"), paras. 134-142; (evaluating under Article I and XXV of the American Declaration the preventative detention of immigrants by Canadian authorities on the ground that they may constitute a "danger to the public"); Amuur Case, supra, para. 53

[76] Eur. Ct. H.R., Winterwerp Case, Judgment of 24 October 1979, Series A Nº 33, 2 E.H.R.R. 387 (addressing procedural safeguards relating to the detention of persons on grounds of mental illness).

[77] See e.g. Coard Case, supra, paras. 37, 42, 47, 59 (addressing under Article I and XXV of the American Declaration the detention of individuals held by the United States for, inter alia, "security and tactical reasons" during the military action led by the armed forces of the United States in Grenada in 1983).

[78] See similarly Eur. Ct. H.R., Winterwerp Case, supra, para. 37 (observing that “[I]n a democratic society subscribing to the rule of law…no detention that is arbitrary can ever be regarded as ‘lawful’”). It is revealing to note in this regard that during the drafting of Article 9 of the International Covenant on Civil and Political Rights, prohibiting arbitrary arrests or detentions, the United States similarly expressed the view that “[a]rbitrary arrest or detention implied an arrest or detention which was incompatible with the principles of justice and with the dignity of the human person irrespective of whether it had been carried out in conformity with the law.” 13 GAOR C.3 (863rd mtg.), A/C.3/SR.863 at 137 (1950).

[79] In this respect, the Commission considers that the notion of arbitrary detention entails not only the absence of fair procedures to review detention, but also incorporates elements of inappropriateness, injustice and lack of predictability. See similarly U.N.H.R.C., Van Alphen v. Netherlands, Comm. Nº 305/1988 (23 July 1990), para. 5.8 (defining arbitrariness not merely being against the law, but as including elements of “inappropriateness, injustice and lack of predictability”); Amuur, supra, para. 50 (citing compliance with the rule of law as fundamental to protection against arbitrary deprivations of liberty).

[80] See similarly Coard Case, supra, para. 45; IACHR, Report on the Situation of the Human Rights of Asylum Seekers in the Canadian Refugee Determination System 2000, OEA/Ser.L/V/II.106 Doc 40 rev., para. 137.

[81] See e.g. Herczegfalvy v. Austria, supra, para. 75; U.N.H.R.C., Communication Nº 560/1993, CCPR/C/59/D/560/1993 (30 April 1997), para. 9.4 (observing that “every decision to keep a person in detention should be open to review periodically so that the grounds justifying the detention can be assessed).

[82] See similarly IACHR, Loren Laroye Riebe Starr and others, Report Nº 49/99, Annual Report of the IACHR 1999, para. 70 (addressing the requirements of procedural fairness in the context of extradition proceedings).

[83] 8 U.S.C. Sections 1181, 182(a)(1)-(5).

[84] 8 U.S.C. Section 1227 (providing that "[a]ny alien (other than an alien crewman) arriving in the United States who is excluded under this Act, shall be immediately deported, in accommodations of the same class in which he arrives, unless the Attorney General, in an individual case, in his discretion, concludes that immediate deportation is not practicable or proper.")

[85] 8 U.S.C. Section 1182(d)(5)(a), 8 C.F.R. Sections 212.5, 212.12.

[86] 8 C.F.R. 212.12(d)(2).

[87] It must be said that on the record before it, the Commission considers it difficult to distinguish between the circumstances of the petitioners’ detentions and detention for the purpose of criminal punishment. For example, the petitioners' detentions have to a significant extent been predicated upon crimes that they committed or are suspected to have committed in Cuba or the United States. Most of the petitioners have been held in federal, state or local facilities utilized for the punishment of offenders, and many have been held for periods of time that are equivalent to or exceed sentences imposed for serious criminal offenses. Further, the State has indicated that the parole provisions of the Cuban Review Plan have been modeled after those for the parole prior to the completion of their sentences of criminals under the federal system.

[88] 8 U.S.C. Section 1182(d)(5)(A) (providing in part that “[t]he Attorney General may…in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case by case basis for urgent humanitarian reasons or significant public interest any alien applying for admission to the United States…”).

[89] Id.

[90] Shaughnessy v. Mezei, 345 U.S. 206; Garcia-Mir v. Smith, 766 F.2d 1478, 1483-84 (11th Cir., 1985), cert. Denied 106 S.Ct. 1213 (1986); Barerra-Mezzora at p. 389. See also Appendix 1, Report on the Atlanta Federal Penitentiary of the Subcommittee on Court, Civil Liberties and the Administration of Justice, Committee on the Judiciary, U.S. House of Representatives (99th Cong., 2d Sess.), Ser. Nº 8 (1986), at 8-21 (providing a history of the judicial response to the detention of Mariel Cubans).

[91] See In re Mariel Cuban 822 F Supp. at 196.

[92] In the words of one court, excludable aliens who seek admission to the United States "have no constitutional rights with regard to their application, and must be content to accept whatever statutory rights and privileges they are granted by Congress." Garcia-Mir v. Smith 766 F 2d 1478, 1483-4 (11th Cir., 1985), aff'd 472 U.S. 846, 968 (1985). See similarly In re Mariel Cubans, supra, at 195-6 (finding that Mariel Cubans, as excludable aliens, are not entitled to habeas relief from administrative detention either on the basis that the said detention violates the Due Process Clause of the Fifth Amendment to the U.S. Constitution, or the right to a fair trial under the Sixth Amendment). The Fifth Amendment to the U.S. Constitution provides in part: “No person shall be … compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law…” [emphasis added]. The Sixth Amendment to the U.S. Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

[93] See e.g. In re Mariel Cuban 822 F.Supp. at 196; Barrera-Echavarria v. Rison 44 F.3d 1441, 1445-1448 (9th Cir.) (interpreting the Immigration and Naturalization Act as authorizing the U.S. Attorney General to detain excludable aliens indefinitely pending deportation). 

[94] The European Court of Human Rights has emphasized the need for the law upon which a deprivation of liberty may be founded to be "sufficiently accessible and precise in order to avoid all risk of arbitrariness." Amuur Case, supra, para. 50. See also Canada Report, supra, para. 139.

[95] 8 U.S.C. Section 1182(d)(5)(A).

[96] See e.g. Eur. Ct. H.R., Golder v. U.K., Ser A, Nº 18, 1 E.H.R.R. 524, PAGE REF. (1975).

[97] petitioner Reuben Alfonso-Arenciba, for example, who was sentenced in 1984 to 6 months imprisonment for possession of cocaine and carrying a loaded firearm, was ordered detained by the Associate Commissioner of Enforcement in 1987. In contrast, petitioner Juan Hernandez-Cala, who was sentenced to 1 ½ to 4 years imprisonment for cocaine possession, was ordered released from detention in 1998. The facts of the cases, as conveyed by the State, do not reveal any  factors that would appear to justify the distinctions in their treatment.

[98] 8 CFR Section 212.12(b)(I), (d)(4)(iii).

[99] Id., Section 212.12(e).

[100] 8 C.F.R. Section 212.12(f) (providing that “[n]o detainee may be released on parole until suitable sponsorship or placement has been found for the detainee. The paroled detainee must abide by the parole conditions specified by the Service in relation to his sponsorship or placement.”).

[101] See e.g. P.C.I.J., Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City, (Advisory Opinion) 3 World Court Reports 516, 529 (1938) (hereinafter the "Danzig Decrees Case").

[102] The Commission has previously stated in this respect that the “requirement that detention not be left to the sole discretion of the State agent(s) responsible for carrying it out is so fundamental that it cannot be overlooked in any context.” Coard, supra, para. 55.

[103] Danzig Decrees Case, supra, at 529.

[104] See e.g. Status Review Plan, Part III.C.2.e (providing that disturbing doubts in a case are to be “resolved against the detainee as he has the burden to convince review participants that he qualified for release.”).

[105] Canada Report supra, para. 142.

[106] In the case of Reuben Alfonso-Arenciba, for example, the State indicated in its July 2, 1988 observations that the alleged victim’s parole was revoked in December 1984 based upon his conviction in 1984 for possession of cocaine and carrying a loaded firearm, for which he served a six-month prison term. In November 1987, his detention was ordered by the Associate Commissioner of Enforcement to be continued because, although he had relatives who offered to sponsor and employ him, the panel was unconvinced of the bona fides of the offer. This, together with the detainee’s past criminal record, his “associations” with narcotics, and the “evasiveness of his responses” during the panel interview, led the panel to recommend his continued detention. These circumstances in turn strongly suggest that Mr. Alfonso-Arenciba faced a considerable burden of proof before the panel, and that the length of his continued detention exacerbated this burden by appearing to render any change in circumstances that might satisfy a panel virtually impossible.

[107] The Commission has articulated as a threshold principle the observation that the longer detention as a preventative measure continues, the greater the resulting burden on the rights of the person deprived of liberty. See Canada Report, supra, para. 142.

[108] 8 CFR Section 212.12(g)(2).

[109] See generally Artico v. Italy, May 13, 1980, Series A Nº 37, 3 E.H.R.R. 1, para. 33 (emphasizing that the European Convention on Human Rights, as a system for the protection of human rights, must be interpreted and applied in a manner that renders the rights practical and effective, not theoretical and illusory).

[110] See Vienna Convention on the Law of Treaties, Art. 31(1) (providing that a treaty "shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose").

[111] See e.g. Canada Report, supra, para. 132 (indicating that under Canadian law, ongoing detention in an immigration context may continue for "a reasonable length of time, given all the circumstances of the case.").

[112] See e.g. Amuur Case, supra, para. 23 (indicating that under legislative amendments adopted in France in July 1992, any person who is refused leave to enter French territory may be detained beyond four days only under the authority of the President of the Tribunal de grande instance, which detention can then only be extended for 8-day periods); Canada Report, supra, paras. 128, 129 (indicating that in situations in which Canadian authorities detain aliens on ground they are likely to pose a danger to the public, a further review is held 7 days after the initial detention and at 30 day intervals thereafter).

[113] See Coard, supra, at para. 55. The Commission has emphasized in this regard that “[w]hile international human rights and humanitarian law allow for some balancing between public security and individual liberty interests, this equilibrium does not permit that control over a detention rests exclusively with the agents charged with carrying it out.” Id., para. 59. The fundamental role of judicial control over detention is also reflected in the U.N.’s Body of Principles for the Protection of All Persons under Any Form, of Detention or Imprisonment, which was adopted on December 9, 1988 with the concurring vote of the United States. Principle 4 of this Body of Principles provides that “[a]ny form of detention or imprisonment and all measures affecting the human rights of a person under any form of detention or imprisonment shall be ordered by, or be subject to the effective control of, a judicial or other authority.” “Detention” for the purposes of the principles refers to “any person deprived of personal liberty except as a result of conviction for an offense.” See Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, supra.

[114] See Garcia-Mir v. Smith, supra, 1483-84.

[115] Id., at 1485.

[116] Canada Report, supra, para. 96, citing “Draft Declaration and Accompanying Report”, supra; IACHR, Report Nº 51/96, Annual Report of the IACHR 1996, p. 550, paras. 177-178.

[117] See generally Eur. Ct. H.R., Belgian Linguistics Case, July 23, 1968, Series A Nº 6, 1 E.H.R.R. 252, p. 35, para. 10.

[118] See e.g. Amuur Case, supra, para. 41.

[119] “Draft Declaration and Accompanying Report”, supra, at 55.

[120] See e.g. Artico case, supra.