Prisoners Defenders • X-ray of an injustice: the trial of José Daniel Ferrer

Cuban Prisoners Defenders’ press release, February 27, 2020:

After 12 long hours of the oral hearing

ATTENTION, PROVISIONAL VERSION: in order to prevent unrelated information from spreading social networks, this narration of the events has been carried out as quickly as possible, but we must warn that it is based on conversations with many of the people who have been in the oral hearing of the trial. They are highly provisional, obviously subjective, and will suffer improvement as we contrast the facts with documents and more testimonials. To verify what is written, it should be taken into account that the following people may be consulted and may be willing to expand the information provided here. These are: José Daniel Ferrer Cantillo, Nelva Ismarays Ortega Tamayo, Ebert Luis Hidalgo Ladrón de Guevara, Ebert Hidalgo Cruz and Ada, his wife. For any questions about their telephone numbers, we are able to supply them only to the qualified professional press.

(Note of March 5, 2020: complementary data are incorporated from the prosecution statement)

Beginning of the trial: 08:45. Completion: 22:15. Testimony of José Daniel Ferrer: 21:00.

The room was composed of:

3 judges
1 secretary
2 lawyers
2 prosecutors
1 journalist
3 cameramen
3 relatives of Roilán Zárraga Ferrer
The 4 defendants
3 relatives of José Daniel Ferrer
Others, very few, relatives of victims, witnesses and defendants, such as Maribel Cabreja Leiva
8 prison officers who changed every 10 minutes
The rest of the public were from state security agents

The sentence will be issued on March 12 for the defendants, although it will be in the hands of José Daniel’s family on the 14th through the request in Aguadores prison to his relative.

REQUEST BY THE PROSECUTION ⁽[1]⁾

“For the defendant FERNANDO GONZÁLEZ VAILLANT, the sanction of ONE YEAR of Deprivation of Liberty for the crime of INJURY and SIX YEARS of Deprivation of Liberty for the crime of DEPRIVATION OF FREEDOM, and as a single joint sanction that of SEVEN YEARS of Deprivation of Liberty with the accessories of article 37.1.2 consisting of the loss of the right to active and passive suffrage.

For the defendant ROILAN ZARRAGA FERRER, the sanction of ONE YEAR of Deprivation of Liberty for the crime of INJURY and SIX YEARS of Deprivation of Liberty for the crime of DEPRIVATION OF FREEDOM and as a single joint sanction that of SEVEN YEARS of Deprivation of Liberty with the of article 37.1.2 consisting of the loss of the right to active and passive suffrage.

For the defendant JOSÉ PUPO CHAVECO, the sanction of ONE YEAR of Deprivation of Liberty for the crime of INJURY, SIX YEARS of Deprivation of Liberty for the crime of DEPRIVATION OF FREEDOM and FOUR YEARS of Deprivation of Liberty for the crime of ATTEMPT; and as a single joint sanction that of EIGHT YEARS of Deprivation of Liberty, with the ancillary provisions of article 37.1.2 consisting of the loss of the right to active and passive suffrage.

For the defendant JOSÉ DANIEL FERRER GARCÍA, the sanction of ONE YEAR of Deprivation of Liberty for the crime of INJURY and EIGHT YEAR of Deprivation of Liberty for the crime of DEPRIVATION OF FREEDOM; and as a single joint sanction that of NINE YEARS of Deprivation of Liberty, with the accessories of article 37.1.2 consisting of the loss of the right to active and passive suffrage.

And the confiscation of article 43, in relation to the case’s files, all of the Criminal Code.

CIVIL RESPONSIBILITY.

The defendants FERNANDO GONZALEZ VAILLANT, ROILAN ZÁRRAGA FERRER, JOSÉ PUPO CHAVECO and JOSÉ DANIEL FERRER GARCÍA, are civilly responsible for their crimes for being criminally and consequently they must be sentenced to indemnify the damages caused to the Citizen Sergio Garcia González, in the amount of three hundred pesos (300 CUP) at the rate of seventy-five (75 CUP) each According to what is established in article 70.1 of the Criminal Code in relation to articles 82, 83 subsections c) and 86 subsection c), of the Civil Code.”

[1] Statement of indictment of the Prosecutor Idania Miranda Ferrer, of the Provincial Prosecutor’s Office of of Santiago de Cuba:
https://drive.google.com/open?id=1Dftxg-ybXiMPKHlwbTgf5zA45bwv10GG

Indicted:

José Daniel Ferrer García
Fernando González Vaillant
José Pupo Chaveco
Roilán Zárraga Ferrer

Witnesses of the prosecution:

Sergio García González, the alleged victim. He testified that on September 20, 2019 he was severely assaulted, by the 4 defendants, that he was left in very bad condition, and that he had been tied up all night and that he only managed to get away the next day, which that he achieved by his means, and that he left the house at 6am on the 21st, very damaged. Sergio García testified that the altercation occurred in the courtyard. According to the police, the case instructor, he had suffered “abdominal thoracic trauma, hematoma in the upper right kidney and right rib fracture.” Sergio García said that what happened happened in the yard of the house, and not in the courtroom, as the minors, witnesses from the prosecutor’s office, said, and as José Daniel Ferrer and José Pupo Chaveco indiccated, while Fernando González Vaillant and Roilán Zárraga Ferrer indicated that the events mainly occurred in the kitchen. No one, except Sergio García, indicated that the events occurred in the courtyard.
Mrs. Amalia Lina Lunas Sánchez: although she didn’t see anything, however, she says she heard screams in a moment, among those she thought she heard “Stop! Stop! Stop!”. She also heard “counterrevolutionary” slogans on the street.
2 children from the neighborhood, Eloidis David Suárez Acosta and Raudelis Molina Álvarez, on which an exploration was carried out, that is, they gave their testimony behind closed doors and without the presence of the defense, possibly only in front of the police instructor of the case (in Cuba there is no Judge instructor, the instruction is done by the police), the prosecutor and the legal guardian, who have said they were together that day, they did not see the facts, but they heard words of “help” that came from the “hall” of the house on the floor below José Daniel Ferrer’s house, a strange thing since the hall had no communication with the outside and was closed. The house of the events is in the name of one of the Oliva brothers (Carlos Amel Oliva Torres), but the prosecutor falsely wanted to attribute property to José Daniel Ferrer, wanting to place him in the place of the facts permanently when the events were not in José Daniel’s house, as that’s not his house. Later, the minors said that they entered the house and saw José Pupo Chaveco, Fernando González Vaillant, Roilán Zárraga Ferrer and José Daniel Ferrer sitting in the living room, speaking.
A Mayor of the Ministry of Interior, named Roberto Martin Gross, Penal Instructor of the Provincial Unit of Police Operations of Santiago de Cuba, located at Alturas de Versalles, city and province of Santiago de Cuba, who presented the images with the strong injuries of the alleged victim, Sergio García, and other pictures. Although part of this proof should have been presented by a coroner, the most relevant thing is that Roberto stated among this images that the fabrics had been taken from the bars above the bed and, meanwhile, Sergio had said it had been on the ground, on all four limbs, and they only found that it was two limbs that were to be tied according to Major Roberto’s expertise.
A prison guard of the Ministry of Interior, Alexander López Bonne, to testify that, in the confrontation between José Pupo Chaveco and Sergio García González once he was the first in provisional prison, he became angry and wanted to go above the second to hit him.
2 doctors from Mayarí, Holguín, the town of Sergio García, to testify about the medical examination they have practiced since September 23, 2019 when Sergio García went to the hospital. They were Yanibis Segura Bref neighbor of Calle O number 32, Locality Guatemala, municipality Mayarí, province Holguín, and Robert Rondón Soria neighbor of Street Juan George Soto number 155, municipality Mayarí Abajo, Holguín.
Two experts (Doctors Hortensia Sandi Hechavarría and Yariza Gilart Hung), who were responsible for testifying that the injuries should be considered according to the Criminal Code as “minor”, that is, that they did not leave “serious consequences” and that they tried to discredit that they were not injuries caused by a motorcycle. In particular, the prosecutor’s accusation indicates that his expert opinion affirmed that “if a fall had occurred from a horse, other injuries typical of the cards should have been found, such as bruises, friction burns, blunt wounds, multiple fractures. etc.“. We find that his testimony and expert report, precisely, give validity to the fact that the fall could take place by motorcycle, since the prosecutor himself presented in the documentary, sheet 10, of the Fiscal Ministry the “Second Medical Certificate dated September 25, 2019 where the injuries received by the victim are described, including bruises in both forearms and posterior region, right atrial pavilion, thoracoabdominal trauma, upper region of the right kidney, right Costal Fracture“, all of which are compatible with the motorcycle fall that he would have suffered. Therefore, without knowing it, the Fiscal Ministry itself would have considered it valid that the requirements for a motorcycle fall were met, although it wielded just the opposite (and nobody refuted it). That is, the preparation against the motorcycle accident hypothesis gives us to understand that the prosecutor’s office knew the statement of Sergio García González’s wife, Maribel Cabreja Leiva in which she publicly testified, and thus is published on YouTube, that her husband actually fell off a motorcycle and that in the hospital, on the 23rd, was when he was visited by State Security to tell him that he had to say that the injuries were caused by José Daniel Ferrer.
Dasneris Guilart Mesa and Rodney, her husband, a neighbouring couple who lives in front of the UNPACU headquarters. They were celebrating her birthday. These witnesses would also have been requested by the defence. Sergio García entered his house and was drunk, vomiting and with bad behavior. They were at home, with their daughter and the mother-in-law who lives with them. Sergio García entered and left his home on the night of September 20, 2019. These two witnesses appeared in court. At the door, a State Security police officer told them that the trial was not that day, and that they should leave, that the trial would be held the next day. Upon learning this, the tribunal and defender requested that they be sought. They were searched and later brought and could testify. They said their house was under siege, they were panicking about the situation and said they were told that the trial was the next day right there in the Court.
Sandy Ramírez Águila , who did not show up, but has two testimonials. The first occurred when he was arrested on October 1, 2019. According to what he later told the cameras on video, it was carried out under police coercion to say what he was asked or that he would be imprisoned. The prosecution called him back to the trial and he left to Havana, according to the witnesses we have consulted, to avoid having to testify at the trial. Neither the prosecutor nor the defence lawyer requested after this his presence and gave up his testimony at the oral hearing.

Defence witnesses:

Ebert Hidalgo and Evert Luis Hidalgo Ladrón de Guevara, father and son. They testified that they were both at that house in the morning, that they arrived early. Evert Hidalgo arrived at 8 in the morning and saw Sergio García González in good health, without any complaint. Evert Luis Hidalgo Ladrón de Guevara said he saw Sergio García at 11 in the morning, sitting in front of the house on the floor below José José Ferrer’s house. Evert Hidalgo on the other hand, saw Sergio leave and take the motorcycle after 11 in the morning. Both saw him in perfect condition. These two witnesses, when it was learned that they received the subpoena, were arrested by the police and threatened that, if they testified, the policy would create a cause of perjury with an 8-year sentence.
Dasneris Guilart Mesa and Rodney, her husband, a neighbouring couple who lives in front of the UNPACU headquarters. They were celebrating her birthday. These witnesses would also have been requested by the prosecutor. Sergio García entered his house and was drunk, vomiting and with bad behavior. They were at home, with their daughter and the mother-in-law who lives with them. Sergio García entered and left his home on the night of September 20, 2019. These two witnesses appeared in court. At the door, a State Security police officer told them that the trial was not that day, and that they should leave, that the trial would be held the next day. Upon learning this, the tribunal and defender requested that they be sought. They were searched and later brought and could testify. They said their house was under siege, they were panicking about the situation and said they were told that the trial was the next day right there in the Court.
Frank, cousin of Dasneris and Rodney, who was chatting with Sergio at 10:00 at the door of the UNPACU headquarters. He was in perfect condition and had no blow or complaint. He told him that he was leaving but that he was returning the following week.

The statements of the defendents

Fernando González Vaillant, José Pupo Chaveco and Roilán Zárraga Ferrer gave, despite being incommunicado with each other and some with anyone at all during these months, the same version of events. Sergio García would have arrived drunk at the headquarters of UNPACU, the house on behalf of Carlos Amel Oliva Torres, which is in the same building as the house of José Daniel Ferrer, but on a lower floor. Sergio would be heavy, violent and disrespectful, so they called José Daniel Ferrer, who went down to the headquarters and asked him to leave. Sergio went to the house in front of the neighbor, and soon began to shout against the dictatorship. After a while, and in the face of the scandal, the three told him that he could enter again but they discussed about his actions. Sergio would have become very aggressive, was very drunk, had vomited and fell, and still wanted to go out to the street to shout. He even took a kitchen knife in his hands, a fact that was nothing more than an impulse that immediately was calmed down. Roilán Zárraga Ferrer managed to take him to a bed and managed to tie his hands to calm down, for fear that his aggressiveness would return or that something could happen. The fact, proportionally and without sequels, was executed by Roilán Zárraga Ferrer in self-defense. He waited Sergio fell asleep and released him. The next day, Sergio was embarrassed and in good condition. He was asked not to return, that the events had been serious. They never saw him again. Fernando and Roilán explained that the main discussion with Sergio took place in the kitchen, but Nelva Ismarays indicates that only she and José Pupo said the events were in the kitchen, coinciding with the statement of José Daniel Ferrer, who indicated that this episode occurred in the living room.

José Daniel Ferrer agreed throughout the statement with the other three except as indicated, the place of the main discussion that Fernando and Roilán had with Sergio. In the final moment, very emotional, José Daniel raised the word allowed by the Tribunal and told who Sergio García was and the reason for the events, and although the words mentioned were not left to be said by him, such as OPPOSITORS, DISIDENTS, POLICE POLICE , SECURITY OF THE STATE, HEADQUARTERS, UNPACU, REGIME, DICTATORS, DICTATORS, ILLEGAL, he managed to say that he, José Daniel Ferrer, is the one who accuses Sergio García, the prosecutor’s office, the doctors, the state security, the political police, the dictatorial regime, its highest dictators and the president of the Court, which he left as a last, indicating that everything in the entire trial had taken to a clear part in favour of the prosecution and for the accusation. He concluded by saying “I am the one who accuses”: “#YoSoyElQueAcusa” (#ImtheOneWhoAccuses)

Additional proofs submitted by the prosecution:

The prosecution presented a video with a voice off in which images of Sergio were seen in the hospital, details of his injuries, and the voice indicated that the injuries had not been caused by a motorcycle.

Additional proofs submitted by the defense:

Although the testimony of Maribel Cabreja Leiva, wife of the alleged victim, was on YouTube and was available from sources accessible to the public, the lawyer requested in the courtroom to be taken into account and the tribunal denied it alleging that they needed the consent of Maribel. Maribel was in the courtroom and, nevertheless, the Tribunal did not want to do the diligence to request her consent to see the video with her previous testimony, in which she declared that her husband had fallen on a motorcycle. All this was a violation of law, since to show in the room a video that was public months ago and from sources accessible to the public, there is no need to ask or request permission from any party. It is a clear irregularity of the Tribunal. While the prosecution knew and prepared for months against the argumentation of the motorcycle version given by the accuser’s wife, however, the defense attorney on the last day he had to submit the request for proof to the tribunal knew nothing about this fact, since he had not had until that moment a single meeting with the defendant’s family, his clients. We do not know, for now, if he requested the statement of Maribel Cabreja Leiva and if he previously requested that it could be videotaped in the courtroom on the day of the oral trial in said request, prior to the Trial. Since it is mandatory that a copy of this application be delivered to the family members and the accused if they request it, we will know whether or not he requested this crucial test and the testimony of Maribel Cabreja Leiva in advance, or if he only requested the video in the room in Oral sight
The public video of Sandy Ramírez with his testimony in which he declared that he was extorted by the political police was not presented at all, neither mentioned. We do not know how such substantial evidence was not presented neither previously nor in the oral trial.

Key questions that remained as unknowns

The defense lawyer asked Sergio García why he went to the hospital on the 23rd, and not on the 21st when he had the injuries as serious as the police officer had told, that is, he had suffered “abdominal thoracic trauma hematoma in the upper right kidney and right rib fracture.” His response was that he was afraid to go and that José Daniel Ferrer would intercept him in the hospital. When asked why he did not go to the doctor of his town, Mayarí, in Holguin, 110 kilometers from the UNPACU headquarters in Santiago de Cuba, he barely responded.

Other significant facts

The trial took place behind closed doors. Diplomats who tried to enter the room were denied. People who wanted to attend were arrested before they could go. This has witnessed, among others, by the son of José Daniel Ferrer, José Daniel Ferrer Cantillo.

The president of the Court did not allow the witnesses of the defense to pronounce the words OPPOSITORS, DISIDENTS, POLICE POLITICS, STATE SECURITY, HEADQUARTERS, UNPACU, REGIME, DICTADURE, DICTATORS, ILLEGAL. In everything referring this political terms, the president rang a bell, despite the fact that the events allegedly happened at the UNPACU headquarters. When Ebert Hidalgo mentioned something about Maribel Cabreja Leiva’s statement, the president corrected him and prevented him from talking about it. According to the statement that has been sent to us by Nelva Ismarays Ortega Tamayo, the President undoubtedly gave the prosecutor wide open hands, and even asked the witnesses other questions to discredit, reduce and destroy their words, but when it came to the lawyer , merely let him speak, gave him no respite and slowed him down every second. The defense lawyer received constant signs from the Tribunal to keep quiet and not continue in his presentations.

Before the trial began, the Ministry of Justice, on whom the Law of Cuba depends, among other judicial areas, posted this on Twitter:

Cuba’s Ministry of Justice, 07:34pm February 26^th– Ferrer will have a fair trial in which his due process will be guaranteed, more than what the man who he kidnapped, gaving him a severe beating, had. He is a common criminal, not a political prisoner. #FerrerImprisonedForCriminal #Cuba

Conclusions

The trial has had huge procedural deficiencies:

While the prosecution has had from October 1 until the day of the oral trial to prepare the accusation, having collected all kinds of evidence, the defense was appointed just 9 working days before the trial. In addition, the defense met with his clients, the family, one day only, on Thursday, February 20, the same day that the lawyer had to issue the request for proof to the Court. The family did not have another trial preparation meeting with the defense attorney. All this is due to two factors. The first is the conception of the practice of defense advocacy in Cuba. The second factor has been due to the fact that the appointed legal lawyer did not have among his premises to act with the coordination with the family and diligently seek the complement of evidence that could provide him for the sake of his defendant. In addition, it should be mentioned that he had to resort to an ex-officio lawyer because the defendant had no confidence in any lawyer he appointed when the prosecutor’s accusatory findings were communicated at the end of January.
The defense attorneys depend entirely on the Ministry of Justice and are as much as the prosecutor’s office is. This has been demonstrated by Prisoners Defenders and ratified by the United Nations (sections 102 to 109) through a recent Resolution of the Working Group against Arbitrary Detentions
Therefore, the statement of the wife of the alleged victim, who on October 4 indicated that her husband had been injured in a motorcycle crash and that State Security visited him at the hospital to tell him that he had to attribute the same to José Daniel Ferrer, was not in the desk, allegedly, of the lawyer.
The family received the news from the lawyer just on the date of the trial, less than 18 hours before it, on the afternoon of the day before the trial, which was held early in the morning.
Witnesses who were not in prison have been threatened (Sandy Ramírez, the Hidalgo family) by State Security so they would not testify.
Most of the witnesses and defendants have been subjected to torture and / or coercion to testify in the sense of falsely blaming José Daniel Ferrer (Ebert Luis Hidalgo, Ebert Hidalgo, and all the accused).
The video with the testimony of Sergio García’s wife has not been accepted because as considered by the tribunal that permission should be requested to present a private recording, but the reality is that it was a recording publicly accessible and an important judicial error was committed against the process. Such a key testimony, in the end, has neither been taken into account in the trial nor has the witness been required by the tribunal to give consent or testify and face the testimony she made public.
Sandy Ramírez’s testimonial video has not been requested or presented, and the defense and prosecution have given up their statement.
(PRELIMINARY VERSION OF THE PRESS RELEASE) Multiple other facts disqualify the trial as a process of law, which we will discuss as the legal team analyzes the case.

(PRELIMINARY VERSION: THIS PRESS RELEASE HAS TO BE COMPLETED WITH ADDITIONAL DOCUMENTARY)

Even preliminary, before the rosary of procedural deficiencies and flagrant manipulations, Prisoners Defenders can highlight that the trial has been a farce of the State Security where all actors, by action or omission, have been part of the imprisonment / accusation of 4 innocents whose guilt could not have been proven in a fair trial, since the most relevant evidence of the defense has not even been presented or taken into account.

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