ARTICLE VIII. Every person has the right to fix his residence within the territory of the state of which he is a national, to move about freely within such territory, and not to leave it except by his own will.
Admittedly, in using the above wording the American Declaration does not expressly every person's right to return to his home country; however, the IACHR considers this right to be implicitly included in the Declaration. The Commission has accordingly maintained that ""the right of every person to live in his homeland, to leave it and to return to it when he so desires..."is a basic right that "is recognized by all international instruments for the protection of human rights"". The Universal Declaration of Human Rights specifies in its Article 13.2 that "Every person has the right to leave any country, including his own, and to return to his country".
Cuban legislation does not recognize an individuals right to leave his country and to return to it, since to do so citizens have to have a permit that is granted by the administrative authorities on a discretionary basis. Despite the fact that the Cuban authorities have simplified the procedures, there are still problems connected with the granting or denial of permits on political grounds. What is serious about the matter is that when the Cuban authorities deny an exit permit, no appeal is allowed.
This is the case with Raul and Alejandro Roque Gonzales, former Cuban Air Force pilots, who were imprisoned for political reasons and then denied permission to leave the country despite having entry visas for the United States, where a part of their family is now living. A similar case is that of Nancy Almeida Fernandez and her two sons Jorge De Jesus and Luis Fidel Blardoni, who hold U.S. entry visas to be reunited with her husband and their father, a former merchant marine captain who obtained asylum in the United States in 1992.
The IACHR has also been informed that the former political prisoner Gregorio Saez Alvarez and his family had their exit permits suspended after they had completed all the requirements, including surrendering their rationbooks and having his daughters abandon their studies.
It should be noted that in recent years the reasons for leaving the country have not been purely political; Cuba's desperate economic plight has also become a motivation for hundreds of people to try to leave illegally with a view to settling, preferably, in the United States.
The sources of information indicate that in 1993 a total of 3,656 people reached the United States on rafts, the rough estimate being that these were the one in three who set out and actually made it. This number grew appreciably in the course of 1994, especially after the beginning of August when the Cuban coastguard and police allowed the mass departure from the island of all who were prepared to put to sea in hastily readied craft. The actual figure calculated to the IACHR in the course of 1994 was 30,000.
It is important to note that these statistics include only those who were rescued from the waters or actually made it to the United States. In this connection, during the period covered by this Annual Report--and prior to the mass exodus--numerous violent actions by the Cuban coastguard against persons attempting to leave without official authorization were recorded.In the morning of July 13, 1994, four Cuban government boats equipped with waterhoses rammed an old tug that carried Cubans fleeing the country, there were 72 persons on board. One of the government boats rammed the tug with the aim of sinking it, and then turned the pressure hoses on those who were on its deck. The appeals of the women and children were in vain; the attack was not called off and the tug sank, leaving over 40 dead, 20 of whom were children.
On July 1, 1994, border guards mortally wounded three persons who were attempting to board a boat off Cojimar, to the east of Havana. The three who died were Mario Horta, Alfredo E. Caballin Marlin and Loamis Gonzales Mansini.
In the morning of July 15, a group of Cuban coastguards opened fire on 11 persons who were attempting to flee the country in a fast motor boat. Several people were injured, including Jorge Luis Marrero, who was hit in the left arm, and Ivette Molina, who was wounded in the face and the left shoulder. There were also two minors in the boat, who were unhurt.
On July 18, 1994, 14 miles off the Cuban coast, seven citizens who were attempting to flee on an improvised raft were rammed at full speed by Cuban coastguard boat No. 554, destroying the raft and causing injury to Jose Manuel Curiel, Pablo Valentin Reyes Carrasco and Jose Raul Batista Diaz. After being arrested, they were taken to the coast guard unit where they were held all day without medical care before turned over to the State Security investigator Alexis Capdevilla.
It has also been reported that Cuban coast guard patrols have on repeated occasions fired on persons seeking to enter the U.S. naval base at Guantanamo by sea, or by land, with the aim of requesting asylum. This has generated severe criticisms since the use of such force is excessive and unnecessary if the objective is simply to turn these people back. Similar incidents have also been reported at other points on the coast and involving persons who were trying to leave the country on crudely built rafts, as well as other cases when craft sent by U.S. citizens or persons resident in the United States approached the Cuban coast to pick up people from the country.
As of the beginning of August 1994, the Cuban coastguard stopped attempting to prevent people from leaving the island. This sparked a mass exodus of persons who put out in all sorts of barely seaworthy craft. The sheer numbers involved led the U.S. Government to adopt a set of measures aimed at preventing an inflow of people on such a scale. One of the main steps taken was to intercept Cubans who set off for southern Florida and to transfer them immediately to the Guantanamo naval base.
Following the introduction of these measures, in early September 1994 the Cuban Government concluded new immigration agreements with the United States under which the prohibitions in effect in Cuba before the crisis were reintroduced. This included full application of Article 216 of the Criminal Code which requires not only that persons who are caught after having set off be placed on trial, but also those who are suspected of planning to do so. This means that Cubans who try to leave illegally and are caught in the act are liable to one to three years imprisonment, while if they use violence in attempting to get away the penalty can be three to eight years in prison.
The foregoing causes the IACHR to consider that exercises of the right to residence and movement set forth in the American Declaration is extremely restricted both de facto and de jure. The restrictions clearly have political connotations, especially for persons who have adopted positions critical of the Government. In this context, the IACHR urges the Cuban Government to take the necessary steps to allow unrestricted movement of persons.