IN THE UNITED STATES
DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA
YORDANIS MONTOYA ISAAC,
individually and as personal representative CASE NO.: 03-20946-CIV-SEITZ
of the Estate of JORGE LUIS MARTINEZ
ISAAC, deceased, Magistrate Judge: Bandstra
Plaintiffs,
vs.
THE
THE CUBAN ARMED FORCES,
FIDEL CASTRO RUZ, and
RAUL CASTRO RUZ,
Defendants.
_____________________________________/
COMPLAINT
Plaintiff, Yordanis Montoya Isaac, individually
and as personal representative of the Estate of Jorge Luis Martinez Isaac,
deceased, through her undersigned attorneys, sues the Defendants, The Republic
of Cuba, The Cuban Armed Forces, Fidel Castro and Raul Castro and alleges as
follows:
CAUSES OF ACTION
1. Plaintiff brings this action for wrongful death seeking monetary
damages and other relief against Defendant.
2. This action arises out of an act of Defendants and their agents on
3. The Alien Tort Claims Act (“ATCA”), 28 U.S.C. §1350 enables suits for money
damages. The Foreign Sovereign Immunities Act, as amended provides liability
for “money damages which may include economic damages, solatium,
pain and suffering, and punitive damages if the acts were among those described
in § 1605(a)(7).” See also 28 U.S.C. § 1605, note.
PARTIES
4. The individual Plaintiff, Yordanis Montoya
Isaac, is the natural sister of Jorge Luis Martinez Isaac (hereinafter
“Jorge”), deceased. Ms. Montoya Isaac is a citizen of
5. Defendant, The
6. Defendant, The Cuban Armed Forces (“Cuban Armed
Forces”) is a political subdivision of
7. Defendant, Fidel Castro Ruz (“Fidel Castro”) is
the dictator of
8. Defendant Raul Castro Ruz (“Raul Castro”) is the
brother of Fidel Castro and the former Director of the Cuban Secret Services,
Commander-in-Chief of the Cuban Armed Forces, President of the Ministry of the
Cuban Revolutionary Armed Forces and Deputy Secretary of the Cuban Communist Party.
Raul Castro resides in
JURISDICTION AND VENUE
9. This Court has jurisdiction over the subject matter of this action
pursuant to 28 U.S.C. §§ 1330(a), 1332(a)(2), and
1350.
10. Defendant Cuba is subject to suit in the courts of the United States
pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(7).
11. On
Defendant
12. The amount in controversy exceeds the sum or value of $75,000.00, exclusive
of interest and cost.
13. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(d) and
1391(f)(1).
FACTUAL BACKGROUND
14. Fidel Castro and his army seized power in
1959. Since Fidel Castro established his repressive regime in 1959,
15. The Castro regime has committed a lengthy litany of human rights abuses and
has routinely victimized the Cuban people, particularly those Cubans who oppose
16. Since 1959, more than 100,000 Cubans have been persecuted by the regime of
Fidel Castro, over 18,000 of whom were killed or
disappeared. In 1965 in a public speech, Fidel Castro admitted that
17. According to a March 30, 2000 Amnesty International report, “Any person
wishing to leave the country [Cuba], whether for a limited period of time or
definitely, must obtain the Cuban authorities’ permission as well as a visa for
the country he/she plans to visit. Members of certain professions such as
doctors, government representatives and former members of the armed forces are
usually prohibited from emigrating. If it is a matter of known dissidents or
former political prisoners, it may occur that even if they have obtained a
visa, the authorities refuse to let them leave or delay their departure with no
apparent cause.... These measures of restriction have compelled many people to
leave without authorization, generally by sea. Those who seek to emigrate or
flee illegally are generally considered by the authorities as traitors of the
Cuban revolution and, when they are caught, they may be indicted for illegal
departures from the national territory, a crime punishable by up to three years
in prison if there was no violence involved and up to eight years if there was
use of force or intimidation.”
18. Beginning in the early 1960's, Cuban citizens started leaving
numbers. Since that time, many Cubans have attempted to escape the repressive,
barbaric regime of Fidel Castro by fleeing in small boats and makeshift rafts.
19. On April 2, 2003 Jorge Luis Martinez Isaac (“Jorge”), along with nine
others freedom seekers boarded a 45-foot Cuban ferry named Baragua,
along with 50 passengers, and attempted to flee the repressive Communist nation
of Cuba for the United States.
20. Later that same day, the ferry ran out of fuel in the high seas of the
Florida Straits,approximately
thirty (30) miles from the Cuban
21. The ferry had been chased by two Cuban Coast Guard patrol boats while
navigating the Florida Straits, and after the ferry ran out of fuel, it was
towed back to Mariel port by Cuban authorities, after
the authorities vowed to allow the ferry to refuel so that it could return to
sea and conclude its voyage to freedom in the United States.
22. Once at the Mariel port the Cuban authorities
reneged on their promise of allowing the ferry to refuel and a standoff ensued
between the freedom seekers and the Cuban authorities.
23. On April3, 2003, Cuban authorities gained control of the ferry.
24. No one on board the ferry was injured or hurt prior to the Cuban
authorities gaining control of the ferry.
25. All of the ten freedom seekers, included Jorge, who attempted to flee
26. On
27. On
28. Jorge, along with two others, were sentenced to
death. The other seven persons received prison sentences ranging from two years
to life in prison.
29. Jorge, and the other two who were sentenced to death, were told at
30. Jorge sought an appeal before the Tribunal Supremo
Popular (“Supreme Court”).
31. The Supreme Court, in another sham hearing, authorized, approved, directed,
and ratified by Fidel Castro, upheld his sentence.
32. On
33. Plaintiff and her family were notified of the summary execution after it
had taken place.
34. This incident coincided with a crackdown by the Fidel Castro and the Cuban
government on peaceful dissidents on the Communist island and two plane highjackings, from
35. The repressive, violent Castro regime has arrested, prosecuted, and
sentenced 75 human rights’ activists, independent journalists, and librarians,
receiving prison terms ranging up to 28 years.
36. The summary executions and the imprisionment of
dissidents, a form of politically motivated terrorism by the Castro government,
has been condemned worldwide by nations, organizations and scholars, such as
the European Union, the United States, Mexico, Chile, and Jose Saramago.
COUNT I
(ATCA - Extrajudicial Killing and Wrongful Death - Against all Defendants)
37. Plaintiff realleges paragraphs 1 through 36 of
this Complaint as if fully set forth herein.
38. Jorge was an alien of the
39. The aforementioned acts by Defendants and their agents, employees and/or
representatives are in accordance with the policies, patterns, and practices of
repression and violence of Fidel Castro and the Cuban government.
40. Defendants’ acts constitute extrajudicial killing of Jorge.
41. The summary execution and wrongful death of Jorge is in violation of the
law of nations.
42. As a direct and proximate result, Jorge suffered substantial damages including,
but not limited to, physical and emotional distress, anxiety, fear,
apprehension, loss of life.
43. As a direct and proximate result Plaintiff suffered substantial damages
including, but not limited to, emotional distress, anxiety, fear and apprehension.
WHEREFORE, Plaintiffs demands judgment in their favor and against the
Defendants, jointly and severally, for compensatory damages, punitive damages,
pre- and post-judgment interest, attorneys’ fees, costs and such other relief
as this Court deems just and proper.
COUNT II
(ATCA - Crimes Against Humanity - Against all Defendants)
44. Plaintiff realleges paragraphs 1 through 43 of
this Complaint as if fully set forth
herein.
45. Defendants’ acts, depriving Jorge of a fair trial, sentencing him to death,
and his summary execution, constitute crimes against humanity in violation of
Article 7 of the Rome Statute on the International Criminal Court, art.20(2),
opened for signature July 17, 1998, U.N. Doc. A/CONF.183/9 (1998) (not yet in
force), 37 I.L.M. 999 (1998); the Charter of the International Military
Tribunal, Nuremberg, of August 8, 1945, confirmed by G.A. Res. 3, U.N. Doc. A/50 (1946) and G.A. Res.95, U.N. Doc. A/236, 59 Stat.1546
(1946); the Convention on the Non-Applicability of Statutory Limitations to War
Crimes and Crimes Against Humanity, Nov. 26, 1968, Ga. Res. 2391, U.N. GAOR,
23d Sess., Supp. No. 18, at 40, U.N. Doc. A/7218, 754
U.N.T.S. 73 (entered into force Nov. 11, 1970); Principles of International
Co-Operation in the Detection, Arrest, Extradiction
and Punishment of Persons Guilty of War Crimes against Humanity, G.A. Res.
3074, U.N. GAOR 28th Sess., Supp. No. 30A at 78, U.N.
Doc. A/9039/Add.1 (1973); Statute of the International Tribunal for the
Prosecution of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former Yugoslavia since
1991, Report of the Secretary General, pursuant to para.
2 of U.N.S.C. Res. 808 (1993), U.N. Doc. S/25704 at 36 (1993), adopted by
U.N.S.C. Res. 827, U.N. Doc. S/Res/827 (1993), reprinted in 32 I.L.M. 1159,
1170 (1993); Statute for the International Tribunal for Rwanda, U.N. SCOR, 49th
Sess., 3453rd mtg., at 1, U.N. Doc. S/Res/955 (1994).
46. As a direct and proximate result, Jorge suffered substantial damages
including, butnot limited to, physical and emotional
distress, anxiety, fear, apprehension, loss of life.
47. As a direct and proximate result Plaintiff suffered substantial damages
including, but not limited to, emotional distress, anxiety, fear and
apprehension.
WHEREFORE, Plaintiffs demands judgment in their favor and against the
Defendants, jointly and severally, for compensatory damages, punitive damages,
pre- and post-judgment interest, attorneys’ fees, costs and such other relief
as this Court deems just and proper.
COUNT III
(ATCA - Violation of Article 7 of the ICCPR - Against all Defendants)
48. Plaintiff realleges paragraphs 1 through 43 of
this Complaint as if fully set forth
herein.
49. Defendants’ acts, depriving Jorge of a fair trial, sentencing him to death,
and his summary execution, constitute cruel, inhuman, or degrading treatment or
punishment pursuant to Article 7 of the ICCPR (ratified by the
50. As a direct and proximate result, Jorge suffered substantial damages including,
but not limited to, physical and emotional distress, anxiety, fear,
apprehension, loss of life.
51. As a direct and proximate result Plaintiff suffered substantial damages
including, but not limited to, emotional distress, anxiety, fear and apprehension.
WHEREFORE, Plaintiffs demands judgment in their favor and against the
Defendants, jointly and severally, for compensatory damages, punitive damages,
pre- and post-judgment interest, attorneys’ fees, costs and such other relief
as this Court deems just and proper.
COUNT IV
(Intentional Infliction of Emotional Distress -
Defendants
52. Plaintiff realleges paragraphs 1 through 43 of
this Complaint as if fully set forth herein.
53. The Defendants’ above actions, including but not limited to, of not
allowing Plaintiff and her family to have a funeral, view her brother’s body
and be allowed to bury the body as were intentional, extreme, outrageous and
intolerable.
54. The Defendants’ actions, described in the foregoing paragraphs, were
undertaken with the intent to injure, harm and/or maliciously cause severe
emotional trauma and distress to Jorge’s family and/or with reckless disregard
of the rights of Plaintiff and of the severe emotional distress that Plaintiff
would suffer.
55. The Cuban government’s actions were undertaken under the orders of, at the
direction of and in concert with Fidel Castro and Raul Castro.
56. The Defendants’ conduct was the sole proximate cause of the severe and
continuing emotional distress that has been suffered by Plaintiff arising out
of the summary execution of her brother. As a direct and proximate result of
the intentional, reckless, outrageous and intolerable conduct of the
Defendants, Plaintiff has suffered substantial damages including, but not
limited to, severe emotional distress, mental anguish, intense fear and
anxiety, among other things.
WHEREFORE, Plaintiff demands judgment in his favor and against the Defendants,
jointly and severally, for compensatory damages, punitive damages, pre- and
post-judgment interest, attorneys’ fees, costs and such other relief as this
Court deems just and proper.
JURY DEMAND
Plaintiff hereby demands a trial by jury of any and all issues herein triable of right by a jury.
DATED this 21st day of April, 2003.
JUDICIAL WATCH, INC.
___________________________________
Larry Klayman
Edelberto Farres
501 School Street, S.W.
Suite 725
Tel.: 202-646-5172
Fax.: 202-646-5199
Attorneys for Plaintiffs