Now you see it...

Now you see it...

Spanish court to determine whether to hear case of genocide against Fidel Castro...

This story was printed today in the Newspaper El Pays of Spain. I have translated the story as faithfully as I could, although I cannot guarantee that it is a perfect translation. The story, in Spanish, can be found here.

Spanish court to determine whether to hear case of genocide against Fidel Castro...A Spanish court will consider next Thursday if it will begin legal proceedings against the cuban leader Fidel castro and the ex - commander , and ex-Tourism Minister osmani cienfuegos, for genocide, terrorism, torture and crimes against people and goods specifically protected in cases of armed conflict. Both are accused of participating in the death by asphyxiation of nine Cuban prisoners during their transfer from Playa Giron to Havana on the 22nd of April 1961, after the failed invasion of the Bay of Pigs.
The case hinges on whether fidel castro is still the head of state of Cuba.

The Committee for Aid to the Dissidence 2506 (CAD 2506), filed a third complaint with the National Courts against castro for the same acts. The first filing occurred in 1998 and was carried out by the Foundation for Human Rights in Cuba and ten exiled Cubans opposed to the Cuban regime, and accused fidel and raul castro, cienfuegos, and another castro leader. The Judge Ismael Moreno, following the fiscal thesis, determined that the acts narrated in the complaint did not constitute crimes of genocide, terrorism, or torture. The magistrate determined that the details of the acts did not infer the intent of castro to destroy a group of humans, national, religious, racial, or ethnic, a very necessary requirement for the crime of genocide.

Moreno also determined that the acts of terrorism could not be committed by the State and that the alleged tortures could only be considered as degrading.

The plaintiffs appealed the decision of this court, but the appellate court confirmed the lower court's decision. The supreme Court of Spain later determined that in order for this case to be heard, the victims would have had to have been Spanish citizens.Los querellantes recurrieron la decisión del juez, pero la Sala de lo Penal confirmó la resolución y el Supremo fijó como requisito, para que el asunto fuera juzgado, que las víctimas debían tener nacionalidad española.

In 2005, the same foundation and several Miami residents, returned to re-file the case arguing that the Spanish Constitutional Tribunal had recognized Spanish jurisdiction when it agreed to investigate and heard a case of genocide in Guatemala, without the need for the victims to have been Spanish citizens, and requested castro's arrest upon his arrival in Salamanca, where the Iberoamerican Summit of the heads of States would have been celebrated that year.

Castro never did attend that Summit in Slamanca, but the judge, and later the appellate court determined that the case could not proceed as the Cuban leader enjoyed sovereign immunity as a Head of State and could not be charged until such time as he would lose that position.Castro, finalmente, no acudió a la cumbre, ni a Salamanca, pero el juez, primero, y la Sala de lo Penal, después, rechazaron la querella por entender que el dirigente cubano gozaba de inmunidad soberana por su condición de jefe de Estado y no podría ser juzgado hasta que perdiera esa condición.

On the 26th of February of this year, 2007, rising from his sickness, and the fact that he had delegated his powers to his brother, another filing for the same acts and with almost exactly the same writings was presented by another association of Cuban dissidents, the CAD 2506. The case was assigned to Judge Santiago Pedraz, who determined not to admit it because the Spanish courts had already decided on the facts of the case. The plaintiffs appealed.

The State Attorney Jesus Alonso, points out that the plaintiff's continued and constant activity, which adopts different denominations, in their intent to continue the case by forcing different courts to consider the merits. Not withstanding, the attorney maintains that "in the new filing, the similarities with the case already heard are clear, making it impossible to have the court re-hear the same as it would fall under the premise of "already decided upon"".

The case seemed clear, but the plenum of the Penal Court, comprised of 15 magistrates presided over by Javier Gomez Bermudez, does not see it so diaphanously, and although it has already debated the case in another session, the court determined that the case is more complex and decided to extend the hearing until next Thursday. No one denies that the acts mentioned in this case are not the same as the ones in prior cases. But the gist of the question is, whether castro has lost sovereign immunity. If castro is found not to have sovereign immunity, the case may proceed. The Court must establish whether castro's delegation of power constitutes that he has lost the title of head of state to raul castro.

Another facet of this case is that in the initial proceedings, raul castro had been a part of the defendants mentioned, and if he is now left out of the case, the court could rule this to be a fraud to the law, with the intention of being able to continue the case against castro. In the event that the magistrates find that castro is no longer the head of state by having delegated his obligations, it is obvious that raul would then be considered the head of state. But omitting his name from the second filing can be considered fraudulent filing.

In any case, it is the court who has the last word, it can decide to open the case against castro, or shelve it for good.

The effect of this case, even if the case against castro were to be opened and heard by the court, would be more of a publicity nature than an effective case, as there is no indication that castro has any intentions of abandoning the country of Cuba, not even to receive medical attention as did Pinochet, who left Chile to receive medical attention in London.

Asphyxiated in a Boxed trailerThe facts in the case against fidel castro, being entertained by a court in Spain, alleges the following.

On the 22nd day of Aprl, 1961, prisoners of the Brigade 2506, counting 149 in total, were going to be transported from Playa Giron to the Palace of Sports in Habana to be incarcerated. Placed in a single file line, as their names were called out, they were made to climb onto the back of a tractor trailer that would transport them to Habana.

The trailer was an aluminum trailer, covered in wood panelling inside, meant for the transfer of merchandise, not even live animals and much less human transport. Once inside, the trailer doors shut, the trailer would be hermetically sealed, providing no ventilation or freshair suply for a breathing being to survive. Once inside the truck, the prisoners began to scream for help, complaining of the lack of oxygen inside the truck. Hearing the screams of the men, Osmani Cienfueos commented, "Better this way, we wont have to put them in front of the firing squad." The doors were then locked.

The vehicle travelled eleven hours to its destiny iin Habana. During all this time, the prisoners never ceased to yell for help and air, begging for the doors to be opened so that they could breathe. They had reached the point where their sweat was condensing on the roof of the trailer, raining back down on them in drops. During this death trip, the vehicule made several stops, those in charge of the cargo never thinking to open the doors despite the screaming, kicking and yelling inside the trailer.

Upon reaching its destination at the Palace of Sports in Habana, the prisoners tumbled out of the truck falling over each other and falling on the gorund breathless and unconscious. Nine men had died: Alfredo Cervantes, José Ignacio Macia, René Silva Soublette, José Millán, Santos Gil Ramos, Herminio Quintana, Moisés Santana, José Vilarello y Pedro Rojas.