United States Department of State
Washington, D.C.
20520

October 15, 2002

David D'Alessandris, Esq.
Commercial Litigation Branch
Civil Division
U.S. Department of Justice
1100 L Street, N.W.
Washington, DC 20530

Re: Ferreiro v. United States, No. 00-648C (Fed. Cl.)

Dear Mr. D'Alessandris:

We understand that " [to] resolve the issue of whether United States citizens have 'the right to prosecute claims against [the Cuban] government in [Cuban] courts,' sufficient to comply with the reciprocity requirement of 28 U.S.C. �2502," the Court in the above captioned case has requested that the Department of State provide a written, official statement directly addressing the subject. The Department understands that, if the Department of Justice were unable to provide a written, official statement from the Department of State, the Court would issue a call upon the Department of State for the requested information, pursuant to 28 U.S.C. 2507. While the Cuban government tightly controls information in Cuba, the Department has reviewed the information available to it on this subject. Based on this information, the Department has concluded that any right of a U.S. citizen to pursue a claim against the Cuban government in Cuban courts is subject to the political interference of the Cuban government and, thus, that there are serious impediments to the ability of a U.S. citizen to pursue effectively a lawsuit against the Cuban government.

As stated in the Department's most recent (2001) Report on Human Rights Practices in Cuba, "Cuba is a totalitarian state controlled by President Fidel Castro . . . [who] exercises control over all aspects of life through the Communist Party and its affiliated mass organizations, the government bureaucracy headed by the Council of State, and the state security apparatus."1 There is no independent judiciary or judicial system in Cuba today. The Cuban judicial system is subject to the political control of the Cuban government. While it appears that at least some Cuban courts have jurisdiction to hear a claim against the Cuban government brought by any individual (including U.S. citizens), the Human Rights Report notes that the Cuban constitution "explicitly subordinates the courts to the [National Assembly of People's Power] and the Council of State, which is headed by President Castro."2 The Department's Human Rights Report also notes that the "subordination of the courts to the Communist Party, which the Constitution designates as the superior directive force of society and the State, further compromises the independence of the judiciary."3 In addition, article 10 of the Cuban constitution provides that "all organs" of the Cuban government, including the courts, "are obliged to strictly observe socialist legality and to ensure respect for it in the life of the entire society."4 Thus, political control over the Cuban judiciary is accomplished both by functional oversight and by a substantive legal requirement.

Cuban judicial decision-making is compromised by the political influence of the Cuban government. The Human Rights Report notes that the "panels composed of a mix of professionally certified and lay judges" preside over civilian courts at the municipal, provincial and supreme court levels.5 Lay judges are selected, in part, for their political obedience to the Cuban government. Since juries are not used in Cuba, these mixed panels of professional judges and lay judges are the decision-makers. Within Cuba, the United States is the subject of constant antagonism and vitriol expressed by the Cuban government. It is within this environment that both professional judges and lay judges must make decisions. The Department believes that the professional and lay judges considering a claim by a U.S. citizen against the Cuban government are inherently subject to constant governmental pressure,

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1 Bureau of Democracy, Human Rights, and Labor, U.S. Dep't of State,
Country Reports on Human Rights Practices - Cuba, at 1, (Apr. 2002) available at http://www. state.gov/g/drl/rls/hrrpt/2001/wha/ [hereinafter "Human Rights Report"]
2 Id.
3 Id. at 7.
4 Constitucion de Cuba, art. 10, translated in constitutions of the countries of the World: Republic of Cuba 4 (ed. Gisbert Flanz, 2000)
5 Human Rights Report, supra note 1, at 7.

without any of the safeguards that typically protect an independent judiciary.

Cuban lawyers are also subject to the control and political influence of the Cuban government. Cuban laws have been used to deprive certain individuals who have criticized the Cuban government or defended human rights cases of their ability to practice law in Cuba.6 In the Human Rights Report, the Department concluded that "the control that the Government [of Cuba] exerts over the livelihood of members of the state—controlled lawyers' collectives compromises their ability to represent clients, especially when they defend persons accused of state security crimes."7 The Department also noted in the Human Rights Report that "[a]ttorneys have reported reluctance to defend those charged in political cases due to fear of jeopardizing their own careers."8 Given the constant hostility articulated by the Cuban government towards the United States, representing a U.S. citizen in a case against the Cuban government appears to present the same governmental intimidation and offers the same career hazard.

Treatment of U.S. citizens by the Cuban government in the past has evinced a general disregard for their rights. For example, when the Castro regime took power, the Cuban government took into state ownership most of the property in that country owned by the United States and its citizens.9 The Foreign Claims Settlement Commission (FCSC) noted in 1972 that "[n]o provision was made by the Cuban Government for the payment of compensation for such property as required under generally accepted rules of international law."'� In fact, the 5,911 claims of U.S. citizens and corporations certified by the FCSC, most resulting from these nationalizations, remain unresolved today. As valued by the U.S. Foreign Claims Settlement Commission (FCSC), these claims today are worth approximately $6.3 billion, including accrued interest.
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6 The Inter-American Commission reported that "attorneys who prepare and sign briefs with positions critical of the situation of the nation or the profession" have been called to meetings to be prohibited from practicing law. Cuba, Inter-Am. C.H.R. 677, 693, 0EA/Ser.L/V/II.114 Doc. 5 rev 1 (2002)
7 Human Rights Report, supra note 1, at 7.
8 Id.
9 U.S. For. Claims Settlement Comm'n, Final Report of the Cuban Claims Program 69 (1979) , reprinted from U.S. For. Claims Settlement Comm'n, Annual Report to congress (1972)
10 Id.

Certain U.S. citizens have been subjected to gross mistreatment by the Cuban judicial system, as documented by the FCSC. For example, Cuba tried, convicted and executed Howard F. Anderson in 1961 for alleged crimes against the Cuban government. The FCSC determined that the "lack of opportunity for defense attorneys to prepare arguments for the trial and subsequent appeal, the actions of the prosecutor at the trial, the changing of the crime charged by the appeals court, the inconsequential acts of Mr. Anderson who was not a member of any group acting against the Cuban Government, and the animosity toward Americans resulting from the Bay of Pigs," resulted in a "denial of justice by the Government of Cuba."" Similarly, the FCSC concluded that the execution of Robert Otis Fuller in 1961 "for the same crime for which two Cuban nationals were sentenced to thirty years imprisonment, was clearly a discrimination directed to persons alien to the Republic of Cuba, being disproportionate to the punishment meted out to the Cuban nationals," and therefore was "a denial of justice."'2 While somewhat dated examples, they remind us of the over forty-year animosity that has been expressed both in and out of the Cuban courtroom. We have no reason to believe that current Cuban judicial processes would be less subject to the political requirements of the current Cuban government.

The information available to the Department is limited, largely because of the Cuban government's anti—democratic restrictions on the flow of information in Cuba and its restrictions on the activities of officers serving in the U.S. Interests Section in Havana. Nonetheless, the Department of State hopes that the information provided herein is helpful to the Court in its consideration of the above captioned case.

Sincerely,

Daniel W. Fisk
Deputy Assistant Secretary of State for
Western Hemisphere Affairs

11 In the Matter of the claim of Dorothy NcCarthy, et al., U.S. For. Claims Settlement Comm'n, Dec. No. CU—6244, at 8 (1971).
12 In the Matter of the claim of Jennie Fuller, et al., U.S. For. Claims Settlement Comm'n, Dec. No. CU—6l99, at 9 (1971)