“Amnesty International takes no position on whether the Cuban Five are guilty or innocent of the charges for which they have been convicted. However, having reviewed the case extensively over a number of years, the organization believes that there are serious doubts about the fairness and impartiality of their trial which have not been resolved on appeal. Amnesty International’s concerns are based on a combination of factors. A central, underlying concern relates to the fairness of holding the trial in Miami, given the pervasive community hostility towards the Cuban government in the area and media and other events which took place before and during the trial. There is evidence to suggest that these factors made it impossible to ensure a wholly impartial jury, despite the efforts of the trial judge in this regard. The right to a trial by a competent, independent and impartial tribunal is guaranteed under Article 10 of the Universal Declaration of Human Rights (UDHR) and Article 14 of the ICCPR, and is fundamental to the right to a fair trial. In order for such a right to be guaranteed, every trial must not only be fair but be seen to be fair. As described in more detail below, there is serious doubt that this principle was fulfilled in this case. Amnesty International is concerned that the Supreme Court declined to hear the appeal on this and several other key issues in the case, despite the fact that judicial opinion in the lower courts has been deeply divided. … The petition for a Writ of Certiorari (leave to appeal) to the US Supreme Court was supported by amicus curiae briefs submitted on behalf of numerous organizations and individuals, including 10 Nobel prize winners, the bar associations of various countries and other legal bodies …. Most of the amicus briefs focused their concerns on the right of criminal defendants to an impartial jury and the prejudicial impact of the trial venue in this regard ….”
“Amnesty International recognizes that the case brought against the five Cuban men is a complex case in which the defendants were charged with serious crimes. They were afforded independent counsel and were tried before a jury in a US criminal court following rules of criminal procedure which do not on their face violate international fair trial norms, and with full rights of appeal. However, the organization believes that the concerns outlined above combine to raise serious doubts about the fairness of the proceedings leading to their conviction, in particular the prejudicial impact of publicity about the case on a jury in Miami. Amnesty International hopes that these concerns can still be given due consideration by the appropriate appeal channels. Should the legal appeals process not provide a timely remedy, and given the long prison terms imposed and length of time the prisoners have already served, Amnesty International is supporting calls for a review of the case by the US executive authorities through the clemency process or other appropriate means.”
“We have followed this case over a number of years and 126 of our fellow Members of Parliament signed a parliamentary motion on this issue in September 2012. This will give you some idea of the amount of interest there is here in this case. We are very keen to meet with you in person so that we can learn first-hand from your experiences, and better understand the detailed history of this important case.”
“8. … Those Interveners who remain in Parliament retain their desire to meet the Appellant. Further, a large body of other parliamentarians are interested in meeting the Appellant in person. 9. The Interveners regard their invitation to the Appellant to come to the United Kingdom as remaining open. The Interveners regard it as impractical for them to travel outside of the United Kingdom as a group in order to meet the Appellant. Their experience is that teleconferencing is an impractical method to receive information from the Appellant. The Interveners and their colleagues require the presence of the Appellant in Parliament.”
“… I am also creating a more robust, clear and transparent criminality framework against which immigration applications will be assessed. At present, there are few specific thresholds in the Immigration Rules. Much is left to discretion, except at the settlement stage where an unspent conviction results in mandatory refusal. There is some advantage to this flexibility in that it allows discretion to deal with hard cases, but it also means that there is a lack of consistency in dealing with offences. These changes will make it clearer about the level of offending that will lead to refusal.”
“Freedom of expression 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers …. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
“61. The ground on which it is said that the decision is unlawful is that the concern on which it is based represents an insufficient justification for interfering with the article 10 rights of Mrs Rajavi and of those many Members of Parliament and Peers who wish to meet her in London in order to discuss the important issue of Iranian democracy. There is no doubt that, if it stands, the decision will impede such discussions; nor is there any doubt that such discussions are at the top of the hierarchy of free speech, as they constitute political communications.”
“90. … [Article 10.1] covers the right of Mrs Rajavi and the parliamentarians both to receive and to impart information and ideas without state interference. And they have this right regardless of frontiers. 91. These are hugely important rights. Freedom of speech, and particularly political speech, is the foundation of any democracy. Without it, how can the electorate know how to make up their minds on the difficult issues they have to confront? How can they decide whether or not to support the Government in the actions it wishes to take? This is all the more important, the larger the issues at stake. There are few, if any, issues larger and more rapidly changing than the political and military situation in the Middle East at present …. … 93. This case is also unusual in that the claimants are senior and distinguished parliamentarians, many of whom have experience which is directly relevant to the questions at issue here. Indeed, they are much better qualified to assess the weight of the Government’s objections to Mrs Rajavi coming to address them than are we. But the very distinction of the people who wish to meet her, and of the place where they wish to meet her, gives to the meeting a public and a symbolic importance which it would not otherwise have.”
“180. By contrast, the interference with the appellants’ article 10 rights is direct and immediate. Article 10 rights are, in any context, of especial significance but the critical importance of free speech in this case should not be underestimated. Our Parliament is the sovereign part of our constitution. Its laws prevail over everything else. The courts accord greater deference to the decisions of Parliament than to those of any other body. When a distinguished group of parliamentarians wishes, in the interests of democracy, to conduct a face-to-face exchange with someone whose views they consider to be of critical importance, only evidence of the most compelling kind will be sufficient to deny them their right to do so. This court has a bounden duty to uphold that right unless convinced of the inescapable need to interfere with it. I have not been brought to that point of conviction. I would therefore allow the appeal and quash the decision to maintain the exclusion of Mrs Rajavi from the United Kingdom.”
“57. The courts accordingly are now frequently called on to review, and, where appropriate, to overturn, decisions of the executive, whether government ministers, local authorities, or other administrative bodies – as can be seen from perusing the law reports. Judges should always be vigilant and fearless in carrying out their duty to ensure that individuals’ legal rights are not infringed by the executive. But judges must also bear in mind that any decision of the executive has to be accorded respect – in general because the executive is the primary decision-maker, and in particular where the decision is based on an assessment which the executive is peculiarly well equipped to make and the judiciary is not. However, I agree with what Lord Kerr of Tonaghmore JSC says in paras 137 and 147, namely that, whatever the issue, once a Convention right is affected by a decision of the executive, the court has a duty to decide for itself whether the decision strikes a fair balance between the rights of an individual or individuals and the interests of the community as a whole. … 67. Having said that, it remains the case that, where human rights are adversely affected by an executive decision, the court must form its own view on the proportionality of the decision, or what is sometimes referred to as the balancing exercise involved in the decision. That was made clear by all members of the appellate committee in Belfast City Council v Miss Behavin’ Ltd[2007] 1 WLR 1420 , paras 13, 24, 31, 44 and 97, applying R (SB) v Governors of Denbigh High School[2007] 1 AC 100 . More recently, the point was illuminatingly discussed by Lord Reed JSC in Bank Mellat v HM Treasury (No.2)[2014] AC 700 , 788-791, paras 68-76 . As Lord Reed JSC made clear at para 71, while proportionality is ultimately a matter for the court, it ‘does not … entitle [domestic] courts simply to substitute their own assessment for that of the decision-maker’, and he went on to say that ‘the degree of restraint practised by [domestic] courts in applying the principle of proportionality, and the extent to which they will respect the judgment of the primary decision-maker, will depend on the context, and will in part reflect national traditions and institutional culture’. The same point was made by Lord Sumption JSC in a passage he quotes on this appeal in para 21. It is also right to bear in mind Lord Bingham’s remarks in para 29 of A v Secretary of State for the Home Department[2005] 2 AC 68 , and Lord Reed JSC’s remarks in para 93 of Bank Mellat (No.2), quoted by Lord Sumption JSC in para 33. 68. Accordingly, even where, as here, the relevant decision maker has carried out the balancing exercise, and has not made any errors of primary fact or principle and has not reached an irrational conclusion, so that the only issue is the proportionality of the decision, the court cannot simply frank the decision, but it must give the decision appropriate weight, and that weight may be decisive. The weight to be given to the decision must depend on the type of decision involved, and the reasons for it. There is a spectrum of types of decision, ranging from those based on factors on which judges have the evidence, the experience, the knowledge, and the institutional legitimacy to be able to form their own view with confidence, to those based on factors in respect of which judges cannot claim any such competence, and where only exceptional circumstances would justify judicial interference, in the absence of errors of fact, misunderstandings, failure to take into account relevant material, taking into account irrelevant material or irrationality.”
“44. … I do not doubt that a face-to-face meeting between the parliamentarians and Mrs Rajavi is the most effective way of conducting their discussions. I would accept that the proposed venue (the Palace of Westminster) and the proposed attenders (members of the two Houses of Parliament) both add symbolic value to an occasion intended to promote democratic values …. But Mrs Rajavi has not been denied the right to express her views. Nor have English parliamentarians or anyone else been denied the right to receive them. Putting the matter at its highest, the Secretary of State’s decision deprives them of the use of one method and one location for their exchanges. It may be that the decision rules out the best method and the best venue for the purpose. For that reason it would be wrong to suggest that such a restriction is trivial. It is not. Nor did the Secretary of State say that it was. The restriction is fairly described in her reasons as ‘limited’ ….”
“94. The Secretary of State originally argued that there was no interference with the article 10 right by refusing Mrs Rajavi permission to come here to meet the parliamentarians. They could always go to Paris to meet her. Or they could exchange views by audio- or video-conferencing methods (which these days are so effective that they are regularly used in court proceedings). But it was soon accepted that to prevent them from meeting face to face in the Houses of Parliament is indeed an interference with their rights. It would be much harder for the numbers of parliamentarians who wish to meet Mrs Rajavi to do so in any other way. There is also the important symbolic value of a meeting in the Houses of Parliament. On the other hand, it must also be accepted that, as there are other ways in which the parliamentarians could communicate with Mrs Rajavi, the interference is not as serious as it would be if they were banned from all forms of communication with her.”