Report Nº 47/96 Case 11.436 Victims of the Tugboat "13 de Marzo" vs. Castro Inter-American Commission on Human Rights.

94. In the case sub lite, the investigations officially carried out by the Cuban State led to the conclusion that the events that occurred on the morning of July 13, 1994, in which 41 people perished, resulted from an accident for which no one was responsible. The Cuban Head of State, Fidel Castro, in his speech to the press on August 5, 1994, described how the investigations into the deaths of the 41 people were carried out: "As soon as news of the tug accident arrived, a thorough and exhaustive investigation was immediately carried out, based on information provided by the survivors, those who had been rescued, what each of them said; based on the information provided by some of those responsible for the seizure of the boat; the meticulous, detailed information provided by each of those who were on the tugs concerning each of the events that occurred."

95. The Inter-American Commission on Human Rights considers that the investigation conducted by the Cuban State may not have been exhaustive enough if it is borne in mind that the sunken ship-- whose engine room contained the bodies of many of the individuals who perished in the wreck--was not rescued, nor were the bodies lying on the ocean floor retrieved.

96. It is obvious--in the opinion of the Inter-American Commission on Human Rights--that the Cuban State did not undertake the investigations in this case seriously and as its own legal duty. The result of this is the impunity in which it is held. Consequently, the Commission considers that the Cuban State, by omission, violated the right to justice enshrined in Article XVIII of the American Declaration of the Rights and Duties of Man.

II. THE ILLEGAL ACT MUST BE IMPUTABLE TO THE STATE

97. To determine whether the serious incident that occurred on the morning of July 13, 1994 are imputable to the Cuban State as a juridical person, the Inter-American Commission on Human Rights considers it necessary to analyze and establish the identify of the perpetrators of the incident. In this context, it is essential that the information provided by the Cuban Government be taken into consideration.

98. First, we have the Official Statement of the Ministry of the Interior, which states: "The investigations carried out by the competent authorities into the incident that occurred on the morning of July 13, 1994, in which a tug belonging to the Maritime Services Enterprise of the Ministry of Transportation sunk seven miles north of the port of Havana, revealed that the disaster occurred as a result of a collision between said tug and another from the same company that was trying to capture it."

99. The Cuban Head of State said in his statements to the press that "...without inding out what happened, it blamed the Cuban authorities for sinking the boat. With incredible perfidy, it said: 'Government ships.' In a socialist state everything belongs to the State: buses, trains, boats, merchant ships, tugs, but they are operated by civilians, and the authorities were represented there essentially by the Coast Guard patrols." Further on, Castro repeated, "But I saw a great deal of perfidy in the attempt to describe the ships as 'Government' ships, because what they meant to say is that the Government was responsible for sinking the boat."

100. In response to the Government's statement, the petitioners stated that "With this argument, the Cuban Head of State tried to excuse his Government. However, if we look at how the State is structured internally, we realize that every activity is under centralized State control." They also said, that "according to the Socialist Political Constitution of 1976, the means of production are state-controlled (Articles 15, 16 and 17) and the economy is centralized. Everyone who works for state enterprises is an employee of the Government. Within each state enterprise there are two types of controls: (a) management control, exercised by the director, and (b) political control, which is the responsibility of the Secretary of the Communist Party for that enterprise. The Communist Party is the country's only legal party (Article 5 of the Constitution). A third important factor in these enterprises is the presence of members of the security police, who are in the Party's employ."

101. Having evaluated the position of both parties, the Inter-American Commission on Human Rights must state that it has been shown that the crews that operated the four boats that sank the tug "13 de Marzo" were employees of the Maritime Services Enterprise of the Ministry of Transportation. Moreover, the assertion of the petitioners that all labor activity is centralized and subordinated to the Government Party is a point that has been confirmed by the Inter-American Commission on Human Rights. In its 1994 Annual Report, the Commission stated that:

...the Inter-American Commission on Human Rights continued receiving information about the excessive control the Cuban State exercised over its citizens, control which, for ideological reasons, is exercised in the daily life of each person and is manifested specially in the work centers. What happens is that "reliability" in the labor field is a determining factor in defining the "suitability" of each worker; this reliability includes the political aspects and the worker's attitude to the defense or requirements of the management of the place of work, the Government or the Party. The Commission was also informed that workers-- before or after being hired--are normally subject to checks by the Committees for the Defense of the Revolution, the Technical Investigation Department or even the Party, in order to ascertain whether they fall into the "reliable" category. If it is determined that a worker is not reliable he will be let go, regardless of years of experience, service or other qualities. What is serious about this is that assessments to the effect that individuals are "not reliable" are not appealable.

102. It has been amply demonstrated then that those who sunk [the tug] and caused the deaths of 41 people were employees of a Cuban State enterprise subordinated de facto and de jure to the requirements of the Governing Party. As a consequence, the events that occurred in the early morning hours on July 13, 1994, are attributable to the Cuban State as a juridical person. Moreover, the Cuban State was seriously at fault for having failed to establish the identity of those responsible and punishing them so that such terrible events might never occur again.

III. DAMAGE OR HARM MUST HAVE OCCURRED AS A RESULT OF THE ILLEGAL ACT

103. In the opinion of the Inter-American Commission on Human Rights, the damages caused by the illegal acts committed by the Cuban State are the following: (a) irreparable physical harm, consisting of the deaths of the 41 people shipwrecked on the tug "13 de Marzo"; (b) the emotional and psychological distress inflicted on the relatives of the victims and survivors, consisting of emotional suffering due to the loss of loved ones, the trauma caused by the incident, and the impossibility of recovering the bodies for proper burial. Added to this is the knowledge that they did not receive justice, i.e., that the deaths caused by Cuban State employees remain unpunished; and (c) physical damage, consisting of the loss of income and indirect damages.

104. Consequently, the Inter-American Commission on Human Rights considers that the Cuban State is under obligation to make reparations for the damages caused and compensate the families of the victims and survivors of the tug "13 de Marzo".

VIII. CONCLUSIONS

105. The Cuban State is responsible for violating the right to life (Article 1 of the American Declaration of the Rights and Duties of Man) of the 41 people who were shipwrecked and perished as a result of the sinking of the tug "13 de Marzo", which events occurred seven miles off the Cuban coast on July 13, 1994. The persons who died that morning are: Leonardo Notario Góngora, Marta Tacoronte Vega, Caridad Leyva Tacoronte, Yausel Eugenio Pérez Tacoronte, Mayulis Méndez Tacoronte, Odalys Muñoz García, Pilar Almanza Romero, Yaser Perodín Almanza, Manuel Sánchez Callol, Juliana Enriquez Carrasana, Helen Martínez Enríquez, Reynaldo Marrero, Joel García Suárez, Juan Mario Gutiérrez García, Ernesto Alfonso Joureiro, Amado Gonzáles Raices, Lázaro Borges Priel, Liset Alvarez Guerra, Yisel Borges Alvarez , Guillermo Cruz Martínez, Fidelio Ramel Prieto-Hernández, Rosa María Alcalde Preig, Yaltamira Anaya Carrasco, José Carlos Nicole Anaya, María Carrasco Anaya, Julia Caridad Ruiz Blanco, Angel René Abreu Ruiz, Jorge Arquímides Lebrijio Flores, Eduardo Suárez Esquivel, Elicer Suárez Plascencia, Omar Rodríguez Suárez, Miralis Fernández Rodríguez, Cindy Rodríguez Fernández, José Gregorio Balmaceda Castillo, Rigoberto Feut Gonzáles, Midalis Sanabria Cabrera, and four other victims who could not be identified.

106. The Cuban State is responsible for violating the personal integrity (Article 1 of the American Declaration) of the 31 persons who survived the sinking of the tug "13 de Marzo", as a consequence of the emotional trauma it caused. The surviving victims are: Mayda Tacoronte Verga, Milena Labrada Tacoronte, Román Lugo Martínez, Daysi Martínez Findore, Tacney Estévez Martínez, Susana Rojas Martínez, Raúl Muñoz García, Janette Hernández Gutiérrez, Modesto Almanza Romero, Fran Gonzáles Vásquez, Daniel Gonzáles Hernández, Sergio Perodín Pérez, Sergio Perodín Almanza, Gustavo Guillermo Martínez Gutiérrez, Yandi Gustavo Martínez Hidalgo, José Fabián Valdés, Eugenio Fuentes Díaz, Juan Gustavo Bargaza del Pino, Juan Fidel Gonzáles Salinas, Reynaldo Marrero Canarana, Daniel Prieto Suárez, Iván Prieto Suárez, Jorge Luis Cuba Suárez, María Victoria García Suárez, Arquímides Venancio Lebrigio Gamboa, Yaussany Tuero Sierra, Pedro Francisco Garijo Galego, Julio César Domínguez Alcalde, Armando Morales Piloto, Juan Bernardo Varela Amaro, and Jorge Alberto Hernández Avila.

107. The Cuban State is responsible for violating the right to freedom of movement and the right to a fair trial of the 72 people who attempted to flee Cuba, rights upheld in articles VIII and XVIII of the American Declaration of the Rights and Duties of Man.

IX. RECOMMENDATIONS

108. It is recommended that the Cuban State conduct an exhaustive investigation in order to identify, prosecute and punish those responsible for sinking the tug "13 de Marzo", which event caused the deaths of 41 people.

109. It is recommended that the Cuban State recover the sunken boat and the remains of the victims and hand them over to their relatives.

110. It is recommended that the Cuban State pay fair compensation to the surviving victims and to the families of the dead for physical and nonphysical damages, including emotional distress. Therefore, THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, CONCLUDES:

111. To forward the present report to the Cuban State and to the petitioner.

112. To publish the present report in the Annual Report to the General Assembly of the OAS, pursuant to Article 53(3) and (4) of its Regulations, inasmuch as the Cuban State never replied to Confidential Report Nº 16/96 of May 3, 1996.

1 It should be pointed out that the Cuban Government was invited to attend this hearing, but the Interests Section did not send any representative.

2 Jorge Alberto Hernández: At 4:00 in the morning of July 13, 1994, a group of men, women and children put out to sea for the purpose of emigrating to the United States. After leaving the pier tug [boat] No. 2 rammed them but without causing any damage. So they continued until they were out to sea, where they began to be rammed by tugs No. 2, No. 3, and No. 5. The tug [boat] they were in was hit on the port and starboard sides. They attacked them with jets of water and threw extinguishers at them. Since they couldn't stop them, they decided to sink the tug. Then, one of the tugs rammed them in front, despite the fact that the people--when the spotlights were turned on them-- showed them that they there were children on board. After the last attack, the boat sank because they had destroyed the stern. After sinking them, the tugs kept spraying jets of water on the people who were swimming and trying to save themselves. Later, the rescue operation began. All the while there was a [Cuban] coast guard cutter observing the situation, without doing anything about it. The tugs did not help them, they told them to keep swimming toward the coast guard cutters. Some climbed aboard [the coast guard ship], but some children who were in a crate were killed when it ran over them.

Arquímedes Lebrigio: Says that he was pressured by the Cuban Government to say that the [tug] boat sprang a leak as soon as it left the shore. When the boat weighed anchor, the [witness] was below deck and could see that there was no leak anywhere. When he went onto the deck of the boat, he saw that the stern and the bow were smashed. The ones who were attacking them told them that the tug was sinking, to which they replied that it was not so and that if they wanted to, they could go all the way to China. That before using it, the helm of the tug was repaired, but not the frame. The tug they used was good compared to the others. And that he lost a son, but the body was never returned to him.

María Victoria García Suarez: We were leaving the country in a tug at three o'clock in the morning. We got off all right, but afterwards they told us women and children to go on deck. Some of us went, the bigger kids, and that's when we saw that two firefighting tugs were coming after us. They hit the sides and then began to shoot water--pressurized water--at us. Then we kept going and told them not to harm us, that there were children on board and we showed them the children and they kept shooting water. Later we saw two more [tugs] about seven miles out and they positioned themselves one on each side: one in front, another in back, and one on each side. And then, all four started shooting water at us and one of the boats rammed us and also shot water at the side of the boat; they were shooting water to make [the boat] capsize, and then they had to close the cabin to keep the engine from getting wet... Then the ones on the side started ramming us and hitting us until they split the right side and turned it, and that's when the boat sank. Who was in the boats that were chasing you? Well, there was the captain, the engineer, friends and relatives. Who was in the boat that was chasing you? Who were they? The ones who were chasing us were in civilian clothes, many of them weren't wearing a shirt either. There were four, four boats. Did they order you to halt? What were they trying to do when they sprayed water? No, they never told us to stop. Then what they did was to shoot water at us. Then the time came when we saw that we could not go on because it was going to be fatal and we stopped because the water was getting in. Then we stopped and we told them: "Look, we're turning back, we have already stopped, and they saw that we had stopped, and it was then that they split the side and turned the boat around." When they turned you around, what happened to you? Those of us on deck, we all went under and the boat sank immediately, but those of us in the water tried to get to the surface. It was very deep. I was carrying my son, I was holding him, I did not let go of him and then I pulled him up, but I don't know how to swim, then I came up but I went under again. Then when I came up there was a woman who had drowned, she was floating beside me, then I grabbed her and carried my son--the waves were high--then I couldn't... I couldn't, he had already drowned... How old was the boy? He was ten, he would have been eleven on August 2. He had already drowned, then I stayed with him, when I saw that he had drowned I kept holding him, because I saw that he no longer had the strength to resist, then I had to get him out because he might be saved. How did you get out of the water? At that point I lost the boy, I couldn't with him, it was very dark. Then afterwards we held onto the red wood, and then I saw when the GRIFI was coming... What is the GRIFI? The GRIFI is the Coast Guard, the boarder guard, and then before the GRIFI came there were the four tugs--the ones that were sinking us--and we asked them to save us, to take us on board, that there were children, and what they did was laugh and told us that if we wanted to save ourselves, to ask the GRIFI for help, that they were going to save us. That's when the GRIFI came and the GRIFI threw us ropes with lifesavers and then we were pulled out.

Jeanette Hernández Gutierrez: When we boarded everything was fine; there was no one, nothing to frighten us, no obstacle. When we were leaving the Bay we saw two tugs that were shut down, at the mouth of the Bay. They let us leave, but afterwards came the streams from the water hoses, they were constant, the streams, they wouldn't stop, knowing that there were children. When we left we realized that... there were people on the jetty, it seemed that there was activity--you understand--on the wall of the jetty, it seemed that there was activity. I suppose they saw everything, at least the beginning of what happened. When we were seven miles out, they kept far away from us, but with the water hoses, under pressure, which is a terrible force, we were holding the children for fear that they would fall, the men behind us to keep us from falling, but so that they would see that there were children and women we had to go up, so that they would realize this and not commit any murder or anything. When we were seven miles out, we saw them speed up and they came alongside, and since the Cuban coast was no longer visible-- because nothing could be seen now, not the lights on the jetty, not the beacon, nothing was visible--it must have been seven or ten miles more or less, as they say. They began bumping us. We were afraid for the children, not for ourselves because if we were lost it would not matter to us, but there were children, and children from five months and older. We held the children up and they saw them and we began to shout to them please... please don't do this, and they paid no attention. A guy who was with us, Román--he's a prisoner now--even called out to one of the ones operating the tugs and the water hose: Hey buddy, calm down, don't do this. Look, there are kids here... and he showed him his stepdaughter who is three years old, and if someone hadn't taken the girl from him--if he hadn't put her down--they would have killed her, with the jets of water. They never fired a shot, but they never spoke to us over the loud speaker to tell us to stop or anything. They just let us leave the bay and attacked us seven miles out, where there were no witnesses--for, as you know, out in the open sea there are no witnesses. When they saw that, that they were bumping us and all that, they put a tug behind us, the biggest one... the biggest of the tugs, it was green with a red stripe---a red stripe--they went up over our stern and split the back part of the boat in half. Then, right about then, two men fell in the water, one of them my husband, and Román, the guy who called out to them not to shoot because there were children. When that happened... the boat was adrift because the captain, whose name was Fidencio Ramel, they knocked him down with the jets of water--they knocked him into the sea. He disappeared, all of a sudden, and when Raúl, he's the one they put in charge, saw that we were adrift, he got up and went running up there. He had some idea about how to steer. Then, doing his best, he tried to help us---no---to save us, because the boat now had so much water because of the jets of water, because they were shooting it straight into the hold---right in there---, in the faces of the children. The children even had to keep their head down, because it's not easy to breathe or swallow it, at least not for children, no. We were already... we knew that we were going to sink because there was something I had a feeling about, that they were going to kill us, because if they weren't they would have stopped. Raúl stopped the engine, our engine, and when they saw that it stopped, it infuriated them and it didn't matter that Raúl had done this. This is how they sunk us: the tug that split our stern moved to the front, came up over the bow and split it. That is, now there was no way of keeping that tug afloat; it sank because it was full of water. Everyone who was in the hold, there were about 72 of us. Mostly children and women. The smallest number who died were men; but they did all they could to save these people too. Many of the people who went up on deck, when this disaster happened that sank us, were floating in the water, but the tugs backed away, they moved back a few meters, but they did not throw us lifesavers-- nothing; they did not give us any kind of help. Only one tug threw lifesavers, but far away from us so that we could not get them. Then, when that boat split our stern, a box fell into the water, a wooden box, a few meters away, only a few meters... eh, now that I'm out--you see--because when we were in the water the box looked very far away and many people could not get to it; and the swirl from the boat pulled it under. And there was my sister- in-law, Pilar Amanza Romero, her son Yasel Perudín Amanza--the boy--, and her uncle Cayol was in the hold, Manuel Cayol. Those are three of my relatives I lost. Then my husband, seeing this-- imagine--he went crazy, and my brother-in-law, too, with the other child. Then we went looking for the other boy, but when we were going out, I felt when they were pulling me from the boat that the boy, the other boy who died, was hugging my foot... eh!... holding my foot and when they pulled me out and I was trying to get hold of him my tennis shoe came off and he and it were both lost, I could not get hold of him; it was terrible. Then when I saw my brother-in-law who was coming out with Sergito, the youngest, the tiniest one, I felt relieved because at least one was left to me. Then I grabbed him and we stayed with him. I saw the GRIFI, it was the only one that helped us, that threw us lifesavers; but the tugs stayed there without doing anything. But later, a speedboat arrived and picked up six or seven people, there was even one girl who looked like a little toad blown up with so much water, but her mama tried to save her and she recovered, she was three years old. After seeing that, we stayed there until dawn on the GRIFI and when I got on board the GRIFI I started insulting them, I told them that they were murderers, that they did not take pity on children, that here (in this country) they say that children, old people have a lot of privileges, but they even let old people die, and many children-- almost twenty-three children died--. This is something, the people were outraged, people were desperate to get news--some thing--to know about those bodies trapped there in the hold. Roberto Robaina said that we knew that the boat was damaged when we left the port. Do you think that we would risk the lives of women and children with a damaged boat, knowing that there was such a long way to go? Then they say that the boat was one of the port's relics, that it was from the Second World War. It's true, it was very old, it was made of wood, but it had just been repaired; even when I went to Villa Marista, to take clean clothes to my husband and my brother-in-law, while I was there I asked them why did the newspaper say that the boat capsized, sank, that it was negligence on our parts? I told them it wasn't so. They got angry and they all called me a counterrevolutionary, and I accepted it... But I asked them in Villa Marista, what about the people who sunk us, the ones who murdered us, our sons, our relatives? Because there are children who lost their mothers, my nephew, for example...

3 Manual de Derecho Internacional Público (International Public Law Manual), Max Sorensen, Economic Culture Fund, Mexico City, 1985, p. 508. Said elements of international liability are also formulated by Eduardo Jiménez de Aréchaga in his work, Derecho Internacional Público (International Public Law), Volume IV, p. 34, University Culture Foundation, 1991.

4 Asdrúbal Aguiar, La Responsabilidad Internacional del Estado por Violación de Derechos Humanos (The International Liability of the State for the Violation of Human Rights), in Estudios Básicos de Derechos Humanos (Basic Human Rights Studies), IIDH, Volume I, p. 127, paragraph 25, San José, Costa Rica, 1994.

5 Ibid, p. 127, paragraph 27.

6 See Sir Ian Sinclair, The Vienna Convention on the Law of the Treaties, Manchester University Press, 1973, p. 208. The concept of jus cogens is enshrined in Article 53 of the Vienna Convention on the Law of the Treaties, which states that "A Treaty shall be null and void if, when it is signed, it is in conflict with a peremptory rule of general international law. For the purposes of this Convention, a peremptory rule of international law is a rule accepted and recognized by the entire community of nations as a rule that cannot be repealed and that can be changed only by another rule of general international law subsequent to the first, but general in nature."

7 Inter-American Court of Human Rights, Judgment in the Velásquez Rodríguez case, July 29, 1988, pp. 71-72, paragraph 175.

8 IACHR, 1994 Annual Report, OEA/Ser.L/V/II.88, February 17, 1995, p. 163.

9 IACHR, Diez Años de Actividades 1971-1981, General Secretariat of the Organization of American States, Washington, D.C., 1982, p. 327.

10 IACHR, 1994 Annual Report, p. 162.

11 Inter-American Court of Human Rights, Judgment in the Velásquez Rodríguez Case, July 29, 1988, pp. 72-73, paragraph 177.

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