Identifier
Created
Classification
Origin
10STATE7492
2010-01-26 00:21:00
UNCLASSIFIED
Secretary of State
Cable title:  

RESPONSE TO THE WORKING GROUP OF COMMUNICATION

Tags:  PHUM UNCHR 
pdf how-to read a cable
VZCZCXYZ0004
PP RUEHWEB

DE RUEHC #7492 0260028
ZNR UUUUU ZZH
P 260021Z JAN 10
FM SECSTATE WASHDC
TO RUEHGV/USMISSION GENEVA PRIORITY 0000
INFO RUCNDT/USMISSION USUN NEW YORK PRIORITY 0000
UNCLAS STATE 007492 

SIPDIS

E.O. 12958: N/A
TAGS: PHUM UNCHR
SUBJECT: RESPONSE TO THE WORKING GROUP OF COMMUNICATION
REGARDING G/SO 215/1 USA 76 (NIEBLA) - GENEVA LOG 71

UNCLAS STATE 007492

SIPDIS

E.O. 12958: N/A
TAGS: PHUM UNCHR
SUBJECT: RESPONSE TO THE WORKING GROUP OF COMMUNICATION
REGARDING G/SO 215/1 USA 76 (NIEBLA) - GENEVA LOG 71


1. Mission is requested to convey to the Working Group on
Communications the text of the letter
in paragraph 3. This is in response to their communication
G/SO 215/1 USA 76. This is item number 71
on the 2009 Geneva Correspondence Log. The response will also
be e-mailed to the Mission.


2. In their letter dated September 17, 2009, the Working
Group on Communications forwarded a request for additional
information on the case of Mr. Jorge L. Niebla, currently
incarcerated at the Apalachee Correctional Institution in
Florida. Based on the Department's response of 30 March 2009,
the Working Group has asked for additional information
provided in paragraph 3.


3. Begin text.

The Government of the United States avails itself of the
opportunity to respond to the request of the Office of the
High Commissioner for Human Rights from September 17, 2009,
for further information regarding the previous communication
G/SO 215/1 USA 76. For the reasons set forth previously and
reiterated below, the United States considers this
communication inadmissible and requests that it be dismissed
by the Working Group. However, the United States also
responds to the specific issue identified in the request from
September 17, 2009.


I. Summary of the Allegations Contained in the
Communication

In a two-page communication to the Office of the United
Nations High Commissioner for Human Rights, Mr. Jorge L.
Niebla (hereinafter Petitioner) of Sneads, Florida alleges
the following:

(1) prisonstaff brutality, including a) humiliation and
harassment; b) deprivation of food; c) inhumane and degrading
treatment; and d) cruel and unusual punishment; and

(2) an unfair justice system, characterized by denial of
equal protection of the laws.

While Petitioner alleges knowledge of the above, he never
alleges that he was subject to any of the mistreatment
referenced in the complaint.

II. Admissibility under the Human Rights Council Complaint
Procedure

A communication is admissible under the Human Rights Council
Complaint Procedure provided it meets the criteria set forth
in Section IV.B of HRC resolution 5/1. First, to be
admissible, the communication must provide a specific and
detailed &factual description of the alleged violations,
including the rights which are alleged to be violated8 (Res.
5/1 at para. 87(b)) and the alleged violations must be

&reliably attested8 and have &clear evidence8 (Res. 5/1
at para. 85). Second, the complainant must exhaust all
domestic remedies (HRC resolution 5/1, para. 87(g)). Third,
the communication must allege a &consistent patterns8 of
gross and reliably attested violations of human rights (Res.
5/1 at para. 87(f)). Mr. Niebla,s communication fails to
meet the first two of these requirements.


A. The communication should be dismissed because it lacks
sufficient factual descriptions of alleged violations and
fails to reliably attest to those alleged violations or
provide any clear evidence.

An important requirement for admissibility is that the
communication &give() a factual description of the alleged
violations, including the rights which are alleged to be
violated8 (HRC resolution 5/1, para. 87(b)). Also, such
alleged violations must be &reliably attested8 and be
backed by &credible evidence8 (Res. 5/1 at para 85.) This
communication fails to meet all of these requirements. The
communication,s allegations are poorly supported by factual
descriptions. For instance, although Petitioner,s
allegations discuss the treatment of other inmates in
Apalachee Correctional Institution, he never names an other
inmate. The only arguably factual allegation in the
communication is that &during breakfast, lunch, and dinner
time if an inmate talks in line, staff will not allow the
inmate to eat.8 But, all of the allegations are deficient
in multiple respects: no specific staff or inmates are
referenced; no specificity or corroboration is provided; no
affidavits are submitted; and no statements of witnesses are
submitted. Petitioner further never alleges that he was
subject to any of the mistreatment referenced in the
complaint.

Allegations made to further the theory that prison staff have
engaged in unlawful behavior not only lack sufficient factual
support and credible evidence, but are by no means reliably
attested. The communication notes that &Mr. Palmer and Mr.
Whitehurst are so involved in wrongdoing that they refused to
recognize inmates as persons before the law.8 Although
Petitioner claims that Director Whitehurst &has refused to
remedy the problem because he don,t respect nor honor the
U.S. Constitution, nor the Universal Declaration of Human
Rights,8 no facts or evidence are provided to support these
allegations.

Accordingly, the communication should be found inadmissible
for failure to provide any factual description of an alleged
violation of human rights, any credible evidence, and any
reliable attestation.


B. The communication fails to even mention the domestic
remedies afforded the Petitioner, or in the alternative, why
those remedies would be ineffective or unreasonably prolonged.

The doctrine of exhaustion of local remedies ensures that the
State, where a human rights violation has allegedly occurred,
has the opportunity to provide redress within the framework
of its domestic legal system. The U.S. legal system provides
strong protections against the abuses that are alleged in the
complaint. It also provides a comprehensive system of
remedies that serve to prevent human rights abuses and
provide relief to their victims. The available remedies can
result in criminal punishment against the individuals
responsible for the violations, injunctive relief aimed at
improving an entire institution or system, and/or monetary
damages or reparations to the victims.

Florida Administrative Code Rule 33-204.003 lays out the
state,s policies on food service operations. These rules
state that, &(i)nmates shall receive three meals per day, of
which at least two shall be hot meals. The meals shall be
provided at regular meal times during each 24-hour period,
with a period of no more than 14 hours between the end of the
evening meal and the beginning of the morning meal, weather
and security permitting8 (33-204.003(1) F.A.C.). The rules
further dictate that, &(f)ood shall not be withheld, nor the
standard menu varied, as a disciplinary sanction or as a
reward for good behavior or work for an individual inmate8
(33-204.003(2)(d)). Had food been withheld, as alleged, Mr.
Niebla or another alleged victim would have had grounds to
bring a grievance for a violation of the rules pursuant to
Florida Administrative Code Rules 33-103, which provides for
grievance procedure for all inmates regarding &the
substance, interpretation, and application of rules and
procedures of the department that affect them personally8
(33-103.001(3)(b)).

Petitioner fails to present any evidence or even argument
that he attempted to exhaust the domestic remedies afforded
him, a requirement for admissibility (Res. 5/1 at para. 87
(g)). For example, Petitioner makes no mention of the
administrative options available to him under Florida
Administrative Code Rules 33-103.005 and 33-103.006 which lay
out the processes for both informal and formal grievances for
criminal offenders to pursue complaints against corrections
officials. Inmates may file an informal grievance
(33-103.005(1)(a)) which will be addressed by the staff.
Should that grievance not provide a satisfactory remedy to
the inmate, the inmate may file an formal grievance
(33-103.006(2)(h)) to the Bureau of Inmate Grievance Appeals,
which will review and assess the complaint. Should neither
the informal nor formal grievance process provide the inmate
with a satisfactory outcome, the inmate may appeal an adverse
decision to the Office of the Secretary of the Florida
Department of Corrections (33.103.007(2)). If the inmate is
still dissatisfied with the result, or if the Department of
Corrections at any point fails to adhere to its policies and
deadlines regarding responding to the complaint, the inmate
may seek judicial review.

However, in his communication, Petitioner states only that he
&addressed the problem to Director Whitehurst however it
seems as if he has denied equal protection of the laws.8 He
makes no mention of any attempt to avail himself of the
informal or formal grievance process available to him in
Florida. Nor has the Petitioner listed any attempts to avail
himself of the judicial remedies afforded him in both state
and federal court.

Accordingly, the Petitioner,s claim should be found
inadmissible for failure to exhaust domestic remedies.


II. Conclusion

In conclusion, the Working Group should find the
communication in G/SO 215/1 USA 76 to be inadmissible.
First, the communication demonstrably fails to meet the
requirements in the HRC Complaint Procedure to provide
factual descriptions of alleged violations or any credible
evidence. Second, Petitioner has failed to even argue that
he has pursued all domestic remedies or that such remedies
would be ineffective or unreasonably prolonged. Rather, the
communication is a list of generalized grievances and
allegations that are not &reliably attested8 or otherwise
substantiated. For each of these reasons, we respectfully
submit that this communication be found inadmissible by the
Working Group.


4. End text. Appreciate Mission's assistance.
CLINTON