Corbacho Daudinot v. Puig Valdes et al

Filing 1

COMPLAINT UNDER THE TORTURE VICTIM PROTECTION ACT against All Defendants. Filing fees $ 400.00 receipt number 113C-5898756, filed by MIGUEL ANGEL CORBACHO DAUDINOT. (Attachments: #1 Civil Cover Sheet, #2 Summon(s), #3 Exhibit A, #4 Exhibit B, #5 Exhibit C, #6 Exhibit D, #7 Exhibit E, #8 Exhibit F, #9 Exhibit G, #10 Exhibit H, #11 Exhibit I, #12 Exhibit J, #13 Exhibit K, #14 Exhibit L, #15 Exhibit M, #16 Exhibit N, #17 Exhibit O, #18 Exhibit P, #19 Exhibit Q, #20 Exhibit R, #21 Exhibit S, #22 Exhibit T, #23 Exhibit U)(Gonzalez, Avelino)

Exhibit E

INFORMATION FOR BRITISH NATIONALS
IMPRISONED IN CUBA

BRITISH EMBASSY HAVANA
CONSULAR SECTION
CALLE 34 No. 704 e/ 7ma y 17
MIRAMAR, HAVANA
PHONE: [phone]
FAX: [phone]
E-MAIL ADDRESS: [e-mail]

CONTENTS

PAGE

Introduction

3

Consular Support

3

Arrest and detention

3

Contacting people

4

What will my family be told?

4

What will the Consulate do?

4

The Judicial System

5

Laywers in Cuba

5

Courts and trial procedures

6

Sentencing and appeals

7

Prison conditions

7

Visits – Consular and family/friends

8

Medical and dental treatment

8

Money

8

Letters and parcels

8

Reading material

8

Prison transfer

9

Release

9

Prisoners Abroad

10

Attachments

11-12

2

Introduction
The following information offers a basic background to the Cuban legal and prison system for
British Nationals who are detained or imprisoned. It may also provide useful information to next of
kin, family and friends, and details what the British Embassy's Consular Staff can and cannot do
in such circumstances.

Consular Support
Consular officials are impartial; they are not there to judge you whatever the circumstances. The
aim is to ensure that you are treated properly and fairly in accordance with Cuban regulations,
and that you are treated no less favourably than other prisoners. We cannot get you better
treatment than other prisoners nor can we offer legal advice but we can give you details of
lawyers to consult.
We can ask prison officials about your welfare but we cannot get you out of prison, pay fines or
stand bail. Nor can we investigate a crime or interfere in local judicial procedures to get you out of
prison or secure you an earlier trial date.
We have tried to make sure that this information is accurate and up to date, but the Embassy
cannot accept legal responsibility for any errors or omissions in the information.
We have also included leaflets with useful information for you, as well as pens, paper and basic
toiletries.

Who is my Consular Representative?
Jonathan Wolstenholme
Consul
Ryan Bennett
Vice Consul
Barbara Lamillar
Pro Consul
British Embassy
Consular Section
Calle 34 No 704 e/ 7ma y 17
Miramar
Havana
Telephone [phone] Ext 2230
Fax [phone]

Arrest and detention
There are few restrictions on police powers to stop and/or question people. However, the Cuban
Constitution states that no-one may be detained except as established by law. Once suspects
have been identified the police are authorised to make arrests. According to Cuban law, pre-trial
imprisonment is supposed to be limited to individuals who cause public fear through crimes of
murder, rape or robbery, or who pose a significant risk to the public. From our experience, foreign
nationals are not always been detained in custody, except in serious cases such as drug
trafficking. However, they may be refused permission to leave Cuba pending the outcome of

3

investigations. Release on bail may also be considered at this stage by the police inspector in
charge of the case (for instance, in the event of a road traffic accident).
If detained, a suspect can only be held for up to 24 hours after which they must either be released
or brought before a police inspector to be remanded. Being held on remand can involve either
house arrest or remand on bail. Only the equivalent of a public prosecutor can order a suspect to
be remanded in custody and for no more than three working days (72 hours). During this time a
decision must be made about whether to release the suspect; impose precautionary measures or
non-custodial remand; or request the prosecutor to remand the suspect in custody. The
prosecutor's office then has three working days to either release the accused or submit to judicial
review an application to keep the accused in custody until trial. This review must be made by the
court that will hear and judge the case. The court is required within three further working days to
either approve detention or order release. The court's decision is final. By law, a document
(known in Cuba as an "AUTO") should be issued within seven days of detention which states the
charges, file number, and other case-specific information.

Who will know that I have been detained?
When a British citizen is arrested and detained, the Cuban authorities are required to inform the
British Embassy. By law, we should be officially informed during the first 72 hours. However, this
is usually done in writing and can take a week to ten days to reach us. We may be informed more
quickly by friends or relatives present at the time of the incident, or sometimes directly by the
Cuban authorities involved in the case.

How can I contact my family or friends?
International telecommunications in Cuba can be difficult, frustrating and expensive, and it is
unlikely that you will be able to contact family or friends in the UK to notify them directly of your
arrest/detention. From our experience, the Cuban authorities will often allow or arrange for a
phone call to the Embassy shortly after your detention to inform us that a British National has
been detained. Once we have made contact with you, we can then contact other family members
and/or friends, subject to your wishes.

What will my family be told?
For reasons of confidentiality we are not permitted to tell anyone that you have been detained or
what the charges are without your permission.

What will the Consulate do?
As soon as we have been notified of an arrest (whether by family, friends or officially) we will
apply for permission to visit. Please note that it can take several days for us to obtain permission,
although in some cases it can be agreed more quickly.
When we visit, we will try to obtain an explanation of the charges that you face and will suggest
that you contact a local lawyer. There is no independent judiciary in Cuba and, as such, the
choice of a local lawyer is limited to two law practices that handle cases involving foreign
nationals. A lawyer will not, however, be able to act on your behalf until you have been officially
charged with an offence.
We can also explain to your next-of-kin how to transfer money to you through the Foreign &
Commonwealth Office in London.

4

The Cuban Legal System
Cuba is a civil law state with an inquisitorial judicial system ('inquisitorial' means gathering and
evaluating evidence, as well as questioning individuals). Central to this system is the notion that
no criminal case exists until an initial investigation ('fase preparatoria') shows that a crime has
been committed, and that a particular person is the probable offender. Before a formal criminal
case is established, so the argument follows, citizens have little need for 'procedural protection'.
This explains why the police have such wide powers to stop and question people, and to search
premises.
The legal process is divided into the following stages;
1. The denuncia, is the reporting of the crime followed by the police investigation.
2. The preparatory phase ('fase preparatoria'). Once a suspect has been identified, the
investigation process begins in oreder to establish the facts and to gather evidence. This
phase is controlled by the Public Prosecution Service (PPS) but the enquiries may be carried
out by the police inspector, the Department for State Security, or directly by the public
prosecutor. This process should not exceed 60 days but may be extended to a period of six
months at the request of the inspector-in-chief. After six months, the case must be handed to
the prosecutor, irrespective of progress, who may rule on a further period for completion of
the preparatory phase. There may be no fixed limit for this extension and there is no right of
appeal. The preparatory phase can take between 12 and 14 months to complete in serious
cases.
3. The intermediate phase begins when the prosecutor confirms that the investigation has been
completed or identifies further enquiries to be carried out, either by his office or by the police
inspector. The prosecutor completes the legal request to the competent court, asking for the
oral hearing to begin. At this stage, the prosecutor can request a temporary adjournment if
there is not enough evidence that a crime has been committed. Additionally, the prosecutor
may request a temporary adjournment if the facts of the crime have been established but
there is not enough evidence to accuse anyone of committing the crime. In either case,
precautionary measures (remand) are lifted.
4. The oral hearing or trial stage. This must involve impartial judges who have not been involved
in any other stage of the proceedings. Lawyers for both prosecution and defence should also
be present. The evidence on both sides is examined and judgment and sentence is passed.
5. The appeal stage. Appeals may be lodged on procedural grounds or points of law.
Lawyers
British Embassy Consular staff cannot give legal advice but we can offer general guidance on the
Cuban legal system. We can also provide a list of English-speaking lawyers. In practice, however,
this is limited to two law firms in Havana which both have representative offices throughout the
country:



Bufete de Servicios Legales Especializados, Calle 23, Esq. J, Vedado, La Habana;
Tel: [phone], Fax: [phone], E-mail: [e-mail]
Consultoria Juridica Internacional, Calle 16 No. 314, Entre 5ta y 7ma, Playa, La Habana;
Tel: [phone], Fax: [phone], E-mail: [e-mail]

This list is provided by the British Embassy in Havana but neither Her Majesty's Government nor any
official from the British Embassy take any responsibility for the competence or probity of any firm or
advocate on the list or for the consequence of any legal action initiated or advice given.

5

A lawyer can be engaged through a "Contract for Legal Services". Payment is regulated with
costs increasing for more complicated cases. If an accused cannot afford a lawyer, the courts will
appoint one from a local legal collective often from one of the firms listed previously. Lawyers can
only intercede on behalf of their clients on completion of the preparatory phase and once the oral
hearing has commenced (or when a precautionary measure has been taken).

Courts and trial procedures
Although organs of the state, courts in theory operate independently. At the head of the judicial
process is the Supreme Court, followed by provincial courts (which prosecute felonies), municipal
courts (for misdemeanours) and military courts.
The role of the court is to hear and assess the evidence from the prosecution and the defence,
and the statement of the accused at the oral hearing. There are no procedures for settling a case
outside of the proceedings such as plea bargaining. All cases go to trial. There has been an effort
in recent years to reduce the time that trials take to be heard and judged. For example, with
serious crimes, the preparatory phase, plus trial and verdict, now takes an average of six months,
while for lesser crimes the average is 30 days for first instance cases. However, sentencing can
add additional time, as it is decided by a panel of judges. Due to the volume of cases, they may
not convene until months after the case was first heard in court.
Judges
The judiciary comprises professional judges (i.e. trained jurists with law degrees, appointed as
appropriate for the type of court) and lay judges. Members of the public (cuban nationals only) are
chosen to serve as magistrates. The constitution decrees that judges are responsible for
imparting justice and therefore owe obedience only to the law.
The state has the power to appoint judges to the People's Supreme Court, while at the level of
provincial and municipal courts, they are chosen by the respective Provincial Assembly. The
activity of the courts is monitored internally, with courts higher up the hierarchy monitoring those
below it. At each level, there are specific responsibilities assigned to judges to ensure the internal
monitoring of the system.
Trial
There is no jury in a trial and cases are determined by panels of judges much like an appeal court
in the UK. Municipal courts, trying lesser crimes, usually have one professional judge and two lay
judges (magistrates). Provincial courts are the same, except for certain cases that require by law
the presence of three judges. In these cases, the court is made up of three judges and two
magistrates. The Supreme Court has three professional judges.
The prosecutor requests the opening of the oral hearing and presents its file on the case
('conclusiones provisionales'). The court inspects the file and may return it if it finds that
procedural formalities have not been observed in the preparatory phase. This could mean the
rights of the suspect have been breached, or correct methods in gathering evidence have not
been followed.
Proceedings begin with the court secretary giving an account of the events that gave rise to the
case/charges, and reporting whether the accused is subject to any precautionary measures
(remand). The secretary then reads out the list of expert witnesses and other witnesses who have
been called. The evidence is then presented in the following order:
1. Statement of the accused;
2. Documentary evidence;
3. Witness examination; and
4. Reports from expert witnesses.
The prosecution speaks first at each stage, followed by the defence.

6

Once the evidence has been presented, the prosecution and the defence have the opportunity to
revise their provisional conclusions. The account of events may only be revised if the revisions do
not significantly alter the original charges. Any such revisions must be made in writing.
After presentation of the evidence, the presiding judge gives the floor to the prosecution and then
to the defence. The accused person has the right to the last word. At the end of the trial, the
judge will ask if they have anything further to add in their defence. If they do, they are then given
the opportunity to address the court. A written report is made of each sitting of the court. This
summarises everything of importance, as well as any formal objections by either side regarding
witnesses who did not turn up and whose evidence is considered to be necessary to their case.
Sentencing
The panel of judges will consider the case to determine the verdict and deliver sentence. The
sentence must reflect the charge and must not be heavier than that requested by the prosecution.
Appeals
Appeals may be made against municipal court and provincial court sentences. Your lawyer is
best placed to advise whether or not you have grounds for appeal under the law and on the
appeals process. Appeals can be made on procedural grounds ('Infración de Ley') or on points of
law ('Quebrantamiento de Forma').
Revision of sentencing
A sentence may be revised if the municipal courts deliver custodial sentences, heavy fines or
other sentences that are either extremely severe or too lenient with regard to the crime. Resentencing can also be applied when the defendant has been wrongly acquitted. The revision
request may not be accepted as it is not mandatory to do so. During this process, the sentence
continues to be served.
Enforcing the sentence
Any consideration of substituting a custodial sentence for one of conditional release is the
responsibility of the court that passed the sentence, as is the enforcement of the sentence.
Prison
Prisons are managed by the Ministry of the Interior. Male foreign nationals are detained in a
separate prison to Cuban nationals at 'La Condesa' prison, in Guines Province, about an hour's
drive from Havana. Female prisoners are held at 'Occidente' prison in Havana but are housed
seperately to Cuban nationals.
Cuban prisons are generally austere; neither their design nor construction lends them to be
centres of rehabilitation excellence. Decades of underfunding, lack of resources and neglect have
contributed to the state that now exists. That said, 'La Condesa' offers educational programmes
for prisoners but their efforts suffer from lack of resources. Prisoners appear to be allowed to
wear their own clothes but much is left to the discretion of the prison staff.
'La Condesa' offers a basic medical facility but again this suffers from lack of resources. Prisoners
suffering from any serious medical complaint will be taken to an alternative facility. Prison food is
poor; protein food such as chicken is often in short supply and good vegetables and fruit are
almost non existent. However, Cubans also endure such shortages outside of the prison system.
Prisoners can supplement their diets by buying additional food, subject to availability, either from
the prison shop, local suppliers or more regularly through consular visits using funds sent by
relatives or the Prisoners Abroad organisation. However, shopping provided during consular visits
is considered to be an additional favour by the prison authorities and can be withdrawn for
disruptive behaviour. The prison has a phone on which prisoners can make and receive calls but
line quality is poor.

7

The authorities do allow visits between male and female prison inmates and, according to one
British prisoner held for over four years in 'Occidente', these can become conjugal visits although
it was not clear if this was with or without the blessing of the authorities.
Consular visits
We will seek permission to visit as soon as we learn of an individual's detention. A member of the
Consular section will visit you within two working days of receiving authority to do so. We will offer
to contact your family or next-of-kin to tell them about your situation and can give them advice on
prison procedures and regulations. We can discuss with the prison authorities your morale and
your general well-being and progress. We can also pass on any messages from you to family and
friends. We will arrange to visit you approximately every two months.
Visits by family, next-of-kin or friends
Visits by family and friends have to be pre-authorised by the Cuban authorities. It is advisable to
contact the Consular section of the Embassy well in advance of any proposed visit so that the
necessary permissions can be obtained. Although the Consular section can offer advice, it cannot
arrange visits by family or friends. These should be arranged in person in Calle 15 y K, Vedado,
La Habana, by the family member concerned. You should be aware that it can take an average
time of seven to ten working days to get the requisite clearances from the prison authorities.
Visitors' passports should also be submitted.
What can a visitor bring?
Visitors can bring clothes, toiletries, some medical supplies and any foodstuffs purchased in
Cuba. However, Cuban customs regulations make it difficult to bring in many items, in particular
meat, dairy and fruit products, from outside the country. If in doubt, please contact the Consular
section of the British Embassy.
Medical and dental treatment
If you need medical or dental treatment you should make an appointment to see the prison doctor
or dentist.
Funds
Money can be deposited with the prison authorities on you behalf to enable you to purchase
additional food stuffs and any personal items from the prison shop or external local suppliers.
However, there is a very limited selection available. Consular officials will deposit with the prison
authorities money received from family or friends transferred via the Foreign and Commonwealth
Office's Consular Directorate in London or from welfare organisations such as Prisoners Abroad.
Mail
The Cuban postal service is unreliable and delivery of items sent through the post cannot be
guaranteed.
Reading Material
There is a small supply of English books which have been deposited at 'La Condesa' prison. In
addition, consular officials will bring with them British newspapers when available.
Parole or early release
In principle, a system exists whereby a prisoner can be released after having served 50% of their
sentence. However, this is at the mercy of the Prison Commander and is less likely to apply to
foreign nationals The courts sometimes give suspended sentences and allow foreigners to leave
the country.

8

Remission
Cuba (technically) works on a ten-month year, i.e. two months are taken off for each year of good
behaviour. However, the final decision still rests with the Prison Commander who can choose to
delay release dates.
Fines
If fines are part of a foreigner's sentence, they have to be paid in CUCs (cuban convertible
currency). Usually funds are confiscated on arrest and used to help pay off any fines.
Transfer to the UK
A bilateral UK/Cuba Prisoner Transfer Agreement (PTA) has now been signed and ratified.
Prisoners have been transferred to the UK to serve out their sentences under the terms of this
agreement. Consular officials can provide more information on the provisions of the PTA but,
essentially, a transfer requires the following;
1. Your request/consent to transfer or that of your legal representative;
2. Agreement of the Cuban Government to the transfer; and
3. Acceptance of the authorites in the United Kingdom to your transfer.
You may be eligible for transfer if you meet the following conditions:
1. You are considered a national of the United Kingdom (for this purpose a UK national is a
British citizen with the right of abode in the UK, or any person whose transfer the UK
Government considers appropriate, having regard to any close ties which the person has with
the UK);
2. Judgement which resulted in your sentence is final;
3. As a general rule, there are at least six months of your sentence to be served when your
transfer request is received. In exceptional circumstances this period may be less; and
4. If the offence which you were tried is a criminal offence under the law of the relevant part* of
the UK. (*England and Wales; Scotland; Northern Ireland).
The sentence you would serve in the UK is the amount of your original sentence which remains
after deducting any remission earned in Cuba.
Release
On completion of sentence, deportation is almost certain and an airline ticket is essential. The
prison authorities will hand you over to the Immigration Authorities who will hold you in their
detention facility until travel to the UK has been arranged. The Consular Section of the Embassy
can liaise with a prisoner's family or friends to transfer funds through the Foreign and
Commonwealth Office to purchase a ticket.

9

PRISONERS ABROAD

PRISONERS ABROAD is an independent, UK-based, humanitarian charity that provides
information, advice and support to Britons detained overseas, to their family and friends, and to
released prisoners trying to re-establish themselves in society. They make no moral judgement
about the persons they help convicted and unconvicted, solely on the basis of need.
PRISONERS ABROAD provides prisoners with a support service during the period of their
imprisonment such as information and advice but also practical support such as books,
magazines, pen-pals, language materials, subscriptions, and in some cases financial assistance.
PRISONERS ABROAD does not provide assistance to prisoners released on bail or parole and
do not assist dual nationals in the country of their second nationality.
PRISONERS ABROAD will need your permission to keep your details on their database and to
begin arranging help to you. If you would like to be in contact with them, you need to sign their
Authorisation Form. (Attachment 1). A leaflet from Prisoners Abroad can also be found in
Attachment 2.

CONSULAR SECTION
BRITISH EMBASSY
HAVANA

10

ATTACHMENT 1

11

ATTACHMENT 2

12