Written by: Yadaimí Domínguez
I propose in this post to expound on, in the matter of Criminal Law, the unjust sentence Yamil received for a crime he never committed and the evil intention of the Court on passing sentence, willfully ignoring the practical proofs that show his INNOCENCE.
In Cuban Criminal Procedure there are 19 grounds. I want to dwell on GROUND 10 as it is the one conforming to case #11/2008 of the Second Chamber of the Provincial Court of Havana in its process of review, a ground on which my brother was prosecuted and sentenced to 10 years deprivation of liberty.
Ground 10 proposes the following:
The content of the sentence does not fit with the practical proofs during the process or there are circumstances not taken into account that can influence the decision handed down.”
For these analysis of this ground I took into account the opinion of Dr. Marcelino Diaz Pinillo, Professor of Criminal Procedural Law of the University of Havana.
We believe that this grounds for review is one of the most significant in ordinary criminal procedure because of the intrinsic weight it brings. The issue is that the trial court, at the time of passing judgment and then sentence, already had all the evidence and could have reached the conclusion that his sentence was not consistent with the proof provided, that is, the logical test of the proof is in error, illogical and unfounded, and thus led to an injustice.
Of course it is not possible that a Court of Review could reach this conclusion if it doesn’t have in its hands all the elements that make up the evidence and all the rational made by the trial court to reach its erroneous conclusion. It follows that the lower courts should place on record, with precision and accuracy, the evidence and arguments they made in the case; this must be reflected in his sentence and also should be included in the minutes of the trial. With little doubt, this is the only way to determine whether the trial court did or did not make an accurate appraisal of the evidence that was available.
Based on what I am exposing today, it calls into question the assessment of the evidence and the appreciation of the circumstances made the trial court, although it was in their hands and, inexplicably, resulted in an unjust sentence. Because of this the Court of Review enters the discussion of the validity or otherwise that resulted in the sentence. The acceptance letter of the visa of my sister-in-law, processed by Yamil; the weather report certifying the bad weather from the Meteorological Institute, the Witness Declaration from the border guards who escorted my brother to the Hemingway Marina, the convincing testimony by Marleny gave orally, the contradictions between the prosecution witnesses in the full trial and the other objective evidence in favor of Yamil were elements that the court had to take into account in passing sentence and none of them were taken into account in the analysis and drafting of it. What an injustice!
It has always been a subject of great debate, the absolute validity of the proven results of the sentence, their intangibility. Not one of our legislatures, to this day, has accepted the violation of this principle. And then, we find that the legislature accepts this attack on proven results. It is our intention to open up this old controversy, only to point out the importance of what it implies and some consequential questions that it brings.
A first consideration will be that if this were to be accepted into the review it will obviously have to be admitted on appeal, as it would be consistent with the postulate. The review procedure is the last link in the chain of procedure, and it would not be logical in earlier times not to admit this.
On the other hand, I think the question of principle of the invulnerability of proven results, or its intangibility, can not be treated only as a theoretical problem and one of legal dogmatism, it needs to be approached also as a practical and dialectic problem. Judicial practice in recent years, and I think always, has shown that if the court “ad quem” cannot come to a value and change the resulting outcome, justice may suffer.
We know that this issue creates difficulties of all kinds: uncertainty among the judges involved, indiscriminate attack on the sentences by the parties, great efforts that reflect clearly which were the practical proofs, etc, notwithstanding all these questions, judicial practice dictates. It is not about opening the sluices and letter the water run unchecked, but about opening and directing its flow, establishing in a definitive and clear way the form and the cases that led this attack on the first resulting sentence. Noting that, when logical reasoning suggests, it is necessary and required, from every legal point of view, to amend the judicial error that has been produced by the rupture between the evidence and what was reflected in the resulting action. The important thing is to get better sentences each time and with them justice prevails.
If this applies, as it must, then the Court will Review of the case #11/2008, and the agony in which my brother and everyone in his family lives, will come to its end.