–by citizenship denial, long court case and deferred judgement
Cuban doctor Lazaro Osmin Gonzalez Munoz was denied citizenship here years ago, but his Guyanese wife transmitted a complaint to the UN Human Rights Committee and the body has found that the couple’s rights to a fair hearing, among other things were violated.
The United Nations Human Rights Committee (UNHRC), established under Article 28 of the International Covenant on Civil and Political Rights, received the complaint in December 2003 and after following the case over the years the UNHRC said last month that the doctor and his wife, Patricia Angela Gonzalez are entitled to an effective remedy, including compensation and it called for appropriate action to facilitate a reunion since Munoz had to leave Guyana. “…The state party is also under an obligation to ensure that similar violations do not occur in the future,” the UNHRC said in its views on the case.
Following the state’s denial of Munoz’s citizenship, the couple fought a long court battle here, starting in April 2002 and ending in May 2006, but judgment was deferred. The committee considered the length of the judicial proceedings and the judge’s delay in submitting his decision and it said the delays in the judicial system were unreasonable and in violation of the couple’s rights under the Covenant. The committee also observed that the combined effect of the delays in the judicial proceedings, following the minister’s failure to review the author’s husband’s application for citizenship within one month, as ordered in the decision of the High Court of 12 November 2003, was detrimental to Gonzalez and her husband’s legitimate interest to clarify his status in Guyana.
The UNHRC also concluded that the manner in which the authorities here dealt with Munoz’s request for citizenship was unreasonable and amounted to arbitrary interference with Gonzalez and her husband’s family. This too was found to have been a breach of the couple’s rights under the Covenant. It was noted that since Munoz is not allowed to reside legally in Guyana and or Cuba (where is he considered a dissident) this country has not indicated where else they might live as a couple. Therefore, the UNHRC considered that this fact constitutes an interference with both spouses’ families.
But it continued that the question is whether such interference is arbitrary or unlawful. “The committee recalls its jurisprudence that interference authorised by states can only take place on the basis of law. As for the concept of arbitrariness, it is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances,” it noted.
Guyana is expected to report to the UNHRC within 180 days about the measures taken to give effect to the committee’s views.
As a state party to the UN Covenant on Human Rights, this country is expected to follow the rules yet it failed to submit its observations on the merits of the claims raised by Gonzalez despite repeated requests. “The committee regrets the state party’s failure to provide any observations with regard to the merits of the author’s claims. In the absence of any such information from the state party, due weight must be given to the author’s claims, to the extent that they have been substantiated,” the UNHRC stated.
Denial
In May 2000, Munoz entered Guyana under a medical cooperation agreement between Cuba and Guyana to render medical services for a period of two years. His contract of 15 May, 2000 with the Cuban Central Unit for Medical Cooperation (UCCM) provided, inter alia, that he must comply with the legal provisions in force for citizens of Cuba if he decides to marry during the period of his contractual obligations. This would nevertheless not exempt him from completing his contractual obligations with the UCCM.
He was also required to obtain prior authorisation from the UCCM before entering into contracts with third parties. As for his marital status, the contract stated that he was married. From May 2000 to July 2001, Munoz worked at a regional hospital, until he was sent back to Cuba for one month vacation. After his return to Guyana, he was assigned to another hospital and the Cuban Embassy later learnt about his engagement with the Guyanese woman.
Background information provided by the UNHRC said Munoz turned down an offer to return to Cuba after he had a surgery, fearing that he would not be allowed to return to Guyana. He later married the Guyanese woman in December 2001 and subsequently applied to the Immigration Department, Ministry of Home Affairs for Guyanese citizenship, under the relevant Article of the Constitution of Guyana.
The citizenship was denied and according to the information submitted to the UNHRC by his wife, officials here said the Cuban Embassy had warned them of the possible consequences of granting her husband citizenship or a work permit, pointing out that setting such a precedent could jeopardize the medical cooperation between the countries such as the further deployment of the Cuban Medical Brigade to Guyana and the grant of scholarships to Guyanese students.
The couple responded with the High Court action. Munoz had denied then that he breached his contract with the UCCM by seeking employment in private hospitals and also that his current marriage was not bigamous, since his first marriage to a Cuban national had been dissolved by judgment of 29 January 2001 of the Tribunal of La Lisa (Cuba). He argued that he was entitled under Article 45 of the Constitution to be registered as citizen of Guyana.
But in reply, the Attorney General (AG) said Cuban authorities pointed out that his divorce certificate was not recorded in the books of the Tribunal of La Lisa, among other things. He said too that Munoz did not have an absolute right to be registered as a citizen of Guyana under Article 45 of the Constitution even if he was lawfully married to a Guyanese citizen.
The AG said the Minister of Home Affairs had lawfully exercised his discretion under Section 7 of the Citizenship Act and Articles 42(1) and 45 of the Constitution to refuse citizenship on grounds of national security and public policy, when he considered that the relations between Guyana and Cuba would be affected in the event that Munoz breached his obligation to return to Cuba at the end of his contract, and that by granting citizenship to him, Guyana would “open the floodgates”. Further, he said that other cooperation agreements and foreign policy matters would also be jeopardized.
In her complaint, Gonzalez said that as a dissident her husband would face long-term imprisonment or execution if returned to Cuba. She said the fact that he had challenged not only the decision of the Minister of Home Affairs of Guyana but, indirectly, also the Cuban Embassy’s request to deny him citizenship would be considered a “counterrevolutionary action” by Cuban authorities. Further, she said it had been announced that both she and Munoz would be deported to Cuba once the court proceedings which they filed were over.
Guyana challenged her complaint, referred to as a communication, saying it was inadmissible and that it constituted an abuse of the right of submission. The state said that the right of spouses of Guyanese citizens to be registered as citizens of Guyana was subject to such exceptions and qualifications as may be prescribed in the interests of national security or public policy, and that the minister was not required to justify his decision, nor was the decision subject to appeal or review in any court.
Guyana raised a number of issues with Munoz, but also submitted that his wife failed to exhaust available domestic remedies prior to her communication to the UN body. But Gonzalez criticized this country’s admissibility submission as “another manoeuvre and excuse to escape responsibility.” She argued that the communication had been registered by the committee on the basis that she had exhausted all available domestic remedies. She noted that 15 months after the High Court’s ruling, the state party was still hiding behind unduly prolonged legal proceedings, while she and her husband were forced to live in separate countries to ensure his safety and subsistence.
Gonzalez said too that the state denied her the basic human right to live and work peacefully with her husband in Guyana, although she is a citizen of Guyana and married her husband according to the laws of the state.
She said it was obvious that the authorities’ intention was to force her into exile, if she wanted her marriage and her family to survive, noting that this was in violation of her Covenant rights.
