Attorney-at-law Remco Stomp.
PHILIPSBURG--According to attorney-at-law Remco Stomp, everything went wrong in the case of three detained Cuban nationals who were rushed to St. Maarten Medical Center on Friday evening for what were said to be self-inflicted injuries they suffered while in a cell at the police headquarters in Philipsburg.
Cuban nationals Yoandy Diaz Fernandez (35), Reynaldo Haten Riesch (49) and Marisleyvis de la Caridad Lamos Castro (30) were all taken into detention on April 17, April 18 and April 28, respectively, because they were considered unwanted foreigners.
Riesch had entered St. Maarten by boat from St. Lucia around September 5, 2018, but had failed to report himself to the Immigration and Border Protection Service IBP. As he did not have an official permit to stay in St. Maarten he was denied access. The other two had sailed from St. Lucia to St. Maarten around March 22, 2019, and they did not have permits to stay here.
Riesch was arrested on April 18 as a suspect in a human-smuggling case and one day later he was handed over to IBP for expulsion.
His fellow Cubans were held for violation of the National Ordinance Admittance and Expulsion LTU on April 17 and April 27, respectively.
The Attorney-General of St. Lucia sent out a memorandum on May 20 in which it was stated that the three Cubans would not be admitted in St. Lucia because they had travelled illegally to St. Maarten and had stayed illegally in St. Lucia. Since then, the three Cubans have been awaiting their expulsion to Cuba, which they fear because they consider themselves refugees and at risk of persecution and torture in their home country.
They were being held among detained crime suspects without the prospect of eviction from St. Maarten in the short term, which they considered a violation of the European Human Rights Treaty, the Refugee Convention and the International Covenant on Civil and Political Rights, they informed the Court during a June 7 hearing.
In the procedure, on which the Court ruled on Wednesday, June 12, the Court did not consider the detention of the three Cubans illegal, as they did not have any permits to stay on the island. Also, they did not have refugee status in Dutch St. Maarten or in French St. Maarten.
The Judge also rejected the appeals to the refugee and human rights treaties, as the Cuban nationals had failed to make it plausible that their rights were violated. Therefore, the Judge ruled their detention for the purpose of their expulsion to be lawful.
“Deporting individuals who do not adhere to local immigration rules is by itself not unusual, and even acceptable to many. Certainly for an island country with limited resources and space, a robust immigration policy is vital. Due to the importance of it, it should be properly handled,” the Cubans’ lawyer Remco Stomp said.
“The law states that in case there is a possibility to deport an individual in a short time, one can be kept imprisoned. The law also states that anyone who is deprived of his or her freedom is entitled to an attorney, paid, if necessary, by the State.
“In addition, the law also provides those arrested with the right to be informed, in a language they understand, of the reasons for the arrest and any charge they face, and the right to prompt access to judicial proceedings to determine the legality of the arrest or detention.”
The facilities to hold people, suspects and undocumented alike, may be – very – basic, but should at least be clean, with fresh water and food available, access to fresh air and daylight, and a minimum amount of private space for each individual.
“The law also stipulates that anyone who requires protection is entitled to file for asylum or a status on humanitarian grounds. So, what went wrong in this case? The answer can be short: all of the above,” Stomp said.
“The Cubans were, and still are, locked up in dirty, small cells without being given access to an attorney for more than two months. They were arrested, their file says, based on a suspicion of human-smuggling; however, no proof was provided and they were handed over to the Immigration Department.”
Once they were in Immigration detention no attorney was informed, nor were they entitled to make a call to seek possible counsel or to inform their family, their lawyer stated.
“The cells in which they are being kept are the same notorious cells in which, recently, an Italian businessman [Francesco Corallo – Ed.] and many others with him were held.
“The Netherlands, as Kingdom partner, was convicted, notably by the European Court of Human Rights itself, for violating Article 3 of the European Convention for Human Rights that states that no one should be subjected to torture or to inhuman or degrading treatment or punishment, a shameful ordeal for one of the most prosperous and presumably civilised countries in Western Europe, and the Kingdom as a whole.”
Already in 2015 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment CPT labelled the local police cells “totally inappropriate” for holding prisoners. “Meanwhile the cells remain the same,” said Stomp.
“The documents the Cubans had to sign were in Dutch or English, while they only speak Spanish. No chance was given to them to file for asylum or a humanitarian residency status,” he said.
According to the lawyer, it is a “well-known” fact that Cuba treats people who escape the country as traitors and defectors. “Countries should, therefore, be extra careful when dealing with this particular group.” He said that, in general, Cuban refugees are trying to reach the United States or the US Virgin Islands.
“The Cubans were not given their right to counsel. No lawyer was ever involved to assist them with their immigration detention. By chance I got word of it. A clear protocol on how to properly deal with Immigration detainees seems not to be in existence. Local police and prison personnel are, therefore, certainly not to blame.
“The current Minister of Justice, meanwhile, holds a record for being relatively humane on immigrants. He has refrained, for instance, in contrast to other countries in the Kingdom, from massively detaining the many Venezuelans who have fled their country. Something must have gone wrong in this case, it appears.
“I pointed out to the Court that the infringements on the legal rights of the Cuban nationals were so obvious and numerous that their immediate release was imperative. The Judge was of a different opinion,” attorney Stomp concluded.
His clients do not have the opportunity to appeal the Court’s decision.
Meanwhile, the police issued a press release on Monday to confirm that the Cubans had been moved back to the police cells in Philipsburg the same night they had injured themselves. They subsequently went on a hunger strike which they ended on Monday.
“The St. Maarten Police Force is currently looking into the legal options for deporting the three illegal Cubans, together with the UNHCR [United Nations Refugee Agency], Refugee Protection and International Migration. The community will be informed as more information becomes available,” police spokesman Chief Inspector Ricardo Henson stated in the release.
