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:
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.
Has the State complied with the American Declaration in the manner
in which it has detained the petitioners?
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
I and XXV of the Declaration provide as follows:
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.
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.
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 or for reasons relating
to physical or mental health, 
and, during occupations governed by international humanitarian law, may
intern the civilian population as a safety measure and for imperative
reasons of security.
In all such cases, however, any deprivation of an individual’s
liberty must be informed by the norms prescribed under Article XXV of the
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.
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
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. In situations of continuing detention, this necessarily includes supervision at regular intervals.
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
Are the petitioners' Deprivations of Liberty Arbitrary?
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
While aliens in this class would normally be removed to their
country of origin,
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
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.
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. The Commission is therefore satisfied that the provisions of Article XXV of the Declaration apply to the petitioners.
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.
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. 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.
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.
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.
This construction, together with the domestic courts’
characterization of the Mariel Cubans’ detention as administrative
rather than criminal in nature,
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.
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.
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.
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
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.
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
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.
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.
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.
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.
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.
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.
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."
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.
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.
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.
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.
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
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.
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
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.
This burden is further aggravated by the length of time for which many the
petitioners have been held in detention,
some of whom have not been released since 1988 or before.
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
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.
Requiring reasonable periods of review for continuing detentions is
consistent with the principle of effectiveness,
as well as with the object and purpose of the Declaration,
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.
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.
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.
the State Afforded the petitioners an Effective Right to have the Legality
of their Detentions Ascertained by the Courts?
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.
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.
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.
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.
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.
Articles II, XVII and XVIII – Rights to Equality, Recognition of
Juridical Personality and a Fair Trial
Articles II, XVII and XVIII of the Declaration provide as follows:
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.
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
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. 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.”
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.
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
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.
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
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.
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.
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.
PROCESSING OF REPORT Nº 85/00 PREPARED PURSUANT TO ARTICLE 53 OF
THE REGULATIONS OF THE COMMISSION
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.
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.
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."
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.
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.
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.
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.
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.
In accordance with the analysis and conclusions in the present
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS REITERATES THE FOLLOWING
RECOMMENDATIONS TO THE UNITED STATES:
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.
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
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.
See Yoram Dinstein, Right
to Life, Physical Integrity, and Liberty, in
International Bill of Rights - The Covenant on Civil and Political
Rights 114,128 (Louis Henkin ed., 1981).
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
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
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
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
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).
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).
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.
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).
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).
8 U.S.C. Sections 1181, 182(a)(1)-(5).
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.")
8 U.S.C. Section 1182(d)(5)(a), 8 C.F.R. Sections 212.5, 212.12.
8 C.F.R. 212.12(d)(2).
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.
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…”).
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).
re Mariel Cuban 822 F Supp. at 196.
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."
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).
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,
8 U.S.C. Section 1182(d)(5)(A).
See e.g. Eur. Ct. H.R., Golder
v. U.K., Ser A, Nº 18, 1 E.H.R.R. 524, PAGE REF. (1975).
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
8 CFR Section 212.12(b)(I), (d)(4)(iii).
Id., Section 212.12(e).
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
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").
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.
Danzig Decrees Case, supra, at 529.
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.”).
Canada Report supra, para. 142.
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
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,
8 CFR Section 212.12(g)(2).
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
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").
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.").
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).
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.
See Garcia-Mir v. Smith, supra,
Id., at 1485.
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.
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.
See e.g. Amuur Case, supra,
“Draft Declaration and Accompanying Report”, supra,
 See e.g. Artico case, supra.