Conflicts of Interest in the Cuban Communist Party’s Constitutional Project / Cubalex

Center: Cuban president Miguel Diaz-Canel

Cubalex: Article 116 of the Cuban Communist Party’s (PCC) constitutional project establishes that “the Council of State may not admit members of the Council of Ministers, nor the highest authorities of the judicial or electoral institutions, or those of state control.”

The president of the republic has not joined either of the two entities but participates in both their meetings. The highest ranking officer of state can participate in his own right in meetings of the Council of State and summon them whenever he wishes; and may also preside over meetings of the Council of Ministers and its Executive Committee [art. 123 parts (u) and (v)) of the constitutional project of the PCC].

This is a meaningless prohibition, because it does not prevent members of the body which is charged with executing the laws being present during the process of adopting those same laws. Neither the Members of the Council of Ministers nor the highest-placed officials of the organs of the judiciary, or electoral bodies, or those of state control should be able to act as representatives.

Neither should the president be able to attend meetings of the permanent body of the National Assembly (the legislative body which spends nearly the whole year in recess) nor be a representative. The avoidance of conflicts of interest is one of the prime reasons why this position should be held by a political representative directly elected by the people.

Art. 129 of the PCC constitutional project establishes that “the Secretary General of the Workers’ Union of Cuba (CTC) participates in his own right in the sessions of the Council of Ministers”. What happens if the Secretary of the PCC is a Member of the Council of State? How are interests to be reconciled if he is a state functionary (Member of the Council of State), political representative, party leader ( Member of the Political Bureau of the PCC), and leader of civi society (Secretary General of the CTC)?

 Translated by GH

Do You Want Transparent Elections in Cuba? Report Violations of the Electoral Law: Here We Tell You How… / Cubalex

“Clean Elections”

Cubalex, 3 January 2019 — Last December 26th, the Council of State appointed members of the National Electoral Commission, but without announcing it publicly to the electorate in the Official Gazette of the Republic, as required by electoral law. This goes against normal electoral procedure, violates our electoral rights and takes away any transparency from the already discredited voting in the referendum.

We have time to insist that they comply with the law which they themselves enacted. You can go to the President of the National Assembly and require that he orders the Council of State to correct the errors committed. continue reading

Publicising in the Official Gazette of the Republic the invitation to the referendum vote.

Respecting the legal 90 day requirement to fix the date of the event.

Technically, the Council of State is an organ of the National Assembly, responsible to it and to which it must account for all its actions. Will they listen to our demands? Let us give it the benefit of the doubt. Why not? What can we lose?

Below you will find a complaint form you can use to report it. Print 2 copies. Take one to the Assembly and use the other to ask for confirmation of receipt (evidence that they have received the report, it could be a stamp with signature, date, and entry number.) Scan the document with its acknowledgement of receipt and send it to us at:  diversentido@gmail.com

If there is no response, Cubalex will act to publicise the report internationally.

If they prevent you from presenting the document or get back at you for having presented it, write to us too.

It doesn’t matter whether your option is  #I VoteNo or #IDoNotVote. You can make a difference

Model form for a written complaint or report of a violation of electoral law

TO THE PRESIDENT OF THE NATIONAL ASSEMBLY OF PEOPLES’ POWER

(first and last name), Cuban citizen with identity number (11 digits from your identity card) and normal address (street or avenue name, number of the building, cross-street, district, city, province and country) Republic of Cuba, I wish to state:

(This may be presented by an individual or a group. In the latter case, each person must set out his or her personal details.)

The signatory/ies of the document, with the support of Art. 63 of the Constitution of the Republic, confirm the following:

FIRST: Last December 26th, the official daily newspaper Granma published a report, headed “The Council of State designates the members of the National Electoral Commission and fixes the date on which they take up office” informing us that the “Council of State, in accordance with the provisions of Law No. 72 of October, 29th, 1992, [The Law on Elections], and in conformity with the announcement of the National Assembly of People’s’ Power, has resolved to designate the seventeen members of the National Electoral Commission, authorised by the referendum, by means of which the Cuban people with voting rights ratified the new Constitution of the Republic”.

SECOND: That the Council of State violated the position set out in Arts. 162, 163 and 167 of Law No. 72 of October 29th, 1992, [The Law on Elections], which regulates voting in the referenda called by the National Assembly of Peoples’ Power, by way of Art. 1. As established by Art. 162 of the said body of regulations, the National Assembly of Peoples’ Power, by agreement, summons the electors to indicate whether or not they ratify the Constitutional Reform project, which, according to official media, occurred last December 22nd, but which, up to the present date, has not been published in the Official Gazette of the Republic, for the general information of the public.

THIRD: By means of Art. 163, the “Council of State, in accordance with that which has been established by the National Assembly of Peoples’ Power, orders the publication of the invitation to a referendum in the Official Gazette of the Republic, and designates the national Electoral Commission”. Art. 167 establishes that the “voting be arranged in the form pre-established by the elections of delegates and Deputies to the Assemblies of Peoples’ Power”. In accordance with this law, “(a) all elections shall be preceded by a corresponding summons issued by the Council of State and are to be published in the Official Gazette of the Republic, with not less than 90 days’ notice of the date of the event”.

FOURTH: From the foregoing one understands that, following the agreement of the Assembly, the Council of State should have made public the calling of the referendum in the Official Gazette of the Republic, prior to designating the Members of the National Electoral Commission and respected the legally-required 90 day term for the announcement of the date of the event. The violation of the electoral law in this case is an attack against the normal roll-out of the electoral process and deprives the voting in the referendum of any transparency.

THEREFORE

Taking into account what is set out in Arts. 74 and 79 of the Constitution of the Republic, which establishes that the Council of State is an organ of the National Assembly, responsible to it and to which it is liable to account for all its activities, we urge that the Council of State be required to comply in good faith with its obligations in respect of Electoral Law 72 of October 29th, 1992, to publicise in the Official Gazette the calling of the referendum, put right the errors committed and to respect the 90 day legal term for the fixing of the date of the event.

Havana, ______ of _________, 2018

Name/ names of the person/s presenting the representation

Claimant

Translated by GH

The State is Obliged to Protect Before, During, and After a Natural Disaster / Cubalex

(Adalberto Roque / AFP)

14ymedio biggerCubalex, 1 February 2019 — Social media have revealed the many dangerous situations which have had to be coped with by the victims of the tornado which battered the Cuban capital on the night of 27 January 2019. People have suffered devastating consequences, including loss of life, of their means of subsistence, as well as damaged infrastructure and economic costs.

It is worrying that the Cuban government holds back or obstructs the provision of relief to the most needy when the international community provides humanitarian assistance. In view of this situation, we have decided to respond to this question:

Does the state have a duty to protect its citizens before, during, and after a natural disaster? continue reading

By virtue of current international law, states are the principal agencies with human rights duties and obligations. International law and common law impose three obligations: the duty to respect, the duty to protect, and the duty to obey.

The duty to protect consists in three responsibilities: (1) prevent, (2) react, and (3) rebuild.

These three obligations have equal application and force in relation to dealing with natural disasters. Complying with them is the minimum that citizens expect at the time of confronting a natural disaster. We have the right to be protected before, during, and after a natural disaster.

The duty to prevent in the context of natural disasters translates as the responsibility to alert people that a natural disaster is imminent. That of reacting is the obligation to recognise when it is not possible to deal efficiently with a disaster and, as a result, the obligation to request assistance from other states.

The intervention of other states is essential to enable a state to recover from a catastrophe. Additionally, even when such intervention has not been requested, other states may proceed in order to bring humanitarian aid without being held responsible for any violation of sovereignty of the state which has been affected, solely as and when the intervention is for this purpose only and not as a pretext for the introduction of armed forces into the affected state.

The fact that a state is lacking sufficient resources does not justify violations of human rights, as there is always the opportunity to make use of international relations with other states to combat a humanitarian crisis resulting from natural disasters.

Lastly, the duty to rebuild refers to the responsibility on the part of the state to ensure sustainable reconstruction and restoration.

Following the disaster, the state has the obligation to seek assistance from the United Nations and from other countries to enable short term and long term reconstruction plans; to assure that the areas affected are once again rendered habitable and safe for people.

In earlier times, when human rights were still considered to be an internal matter for each country, the intervention of other states and the international community was resisted.

Nowadays, this attitude has in large part been replaced by a responsibility, in which states are considered to be responsible for the wellbeing of their people. That is to say, the state has the responsibility to protect the population, especially in the face of natural disasters.

The UN Charter obliges its member states to “take measures jointly and separately, in cooperation with the organisation, for the accomplishment of the objectives set out in Art. 55”, which promotes respect for the human rights and fundamental liberties of all persons subject to its jurisdiction, without any form of discrimination.

First published in Cubalex.

 Translated by GH

________________________________

The 14ymedio team is committed to serious journalism that reflects the reality of deep Cuba. Thank you for joining us on this long road. We invite you to continue supporting us, but this time by becoming a member of 14ymedio. Together we can continue to transform journalism in Cuba.

Decree Law 349 and the Cuban State a€™s Cultural Politics in 7 Points / Cubalex

Cubalex, 15 August 2018 — The Council of Ministers, in Decree Law No. 349, on April 20, 2018 (effective on December 20, 2018) establishes sanctions for not complying with the cultural policies established by the Ministry of Culture, in relation to the suitability, professionalism and remuneration of artists, whether they are graduates of art education, general education or amateurs. The following 7 points summarize this policy:

1. Cuban artists, whether they are graduates of artistic education, general education or amateurs, in order to practice professionally, have to be qualified by the State.

2. Only artists who have been approved or enrolled in the Registry of Creators of Plastic and Applied Arts can exhibit, provide artistic services in public or have commercial space for their art. continue reading

3. Artists will be required to establish links with a State institution in order to receive remuneration for their work. Those who don’t comply with this policy can be subject to disciplinary measures by their work institution, including measures that affect their economic support.

4. Only institutions that are authorized by the Minister of Culture or the Cuban Institute of Radio and Television can establish work relations with artists and represent them to market their productions and artistic services in public.

5. Artists will not be able to benefit from productions or shows, or develop and expose their skills, talents and artistic attitudes in public without State authorization. Nor can they express their identity using national symbols. People who are not considered artistis are excluded from access to practices, benefits and cultural services.

6. State officials have it within their discretion to decide if a book doesn’t comply with ethical and cultural values; if audiovisuals, music or artistic presentations promote discrimination, violence or use sexist, vulgar and obscene language. Victims, affected groups, denunciations or guarantees of due process are not required for accusations.

7. State supervisors and inspectors will decide, at their discretion, if fines between 1,000 and 4,000 pesos or confiscation of goods are merited. Both measures can be applied to any person, organization, business, etc. “in places of State and non-State public installations,” which do not comply with the policy stablished by the Ministry of Culture. They also can suspend, immediately, any show or film and request cancellation of authorization for independent work activity.

Translated by Regina Anavy

With the Detention of Maiquel El Osorboa€, Do We Have Legal Certainty in Cuba? / Cubalex

Cubalex, 29 September 2018 — The District Attorney’s office in Havana Vieja is trying to revoke the decision taken 3 months ago by the police to fine the rapper Maiquel Castillo 1000 pesos. The rapper was violently arrested last 22nd June. They accused him of threatening the authorities when he filmed a house search in Cristo Park.

The law enforcement authorities have kept Maiquel Castillo, also known as “Maiquel El Osorbo”, locked up since 25th September 2018, to get back at him for joining the campaign against Decree 349. His case is evidence of the lack of legal certainty in Cuba.

The criminal law authorises the police to interpret it and apply it as if they were judges, in the nearly 27% of offences they deal with. These officers, instead of remitting the cases to a tribunal, judge them and apply fines. continue reading

What we do know is, if he accepts the imposition of a fine, he would be acknowledging his guilt (destroying his own presumption of innocence). The police do not take the trouble to declare that they “will refer the matter to the competent authorities (…)” only when the “offender requests it or does not pay the fine”.

Receipt for payment of a 1,000 peso fine.

Returning to the case of “Maiquel El Osorbo”, who paid the fine the same day that it was imposed, the law says “if the offender pays the fine (…) within 10 working days of its imposition, the matter will be considered as closed, and will not be recorded as an offence.”

Most people accept the fine, “doing an 8.3”, as it is commonly known, to get the matter finished with. The truth is that there is no difference between a judgement by a  policeman (who has hardly made it to the ninth grade) and a judge (law graduate), who is subject to all sorts of influence by State Security and the Ministry of the Interior. Anyway we all know how we will end up if we take it into our head to get the better of a policeman, and that nothing will come of it.

So we have to ask whether the tribunals and district attorneys should adhere to a decision taken by a policeman to impose a fine? And as and when they may be satisfied, whether this decision should have the same value as a definitive judicial sentence?

Or whether, on the contrary, can a policeman, district attorney or tribunal be at liberty to change their opinion, regarding a decision already taken, to revoke it, and consider an act to lack “social danger because of  its limited consequences and the social condition of the author of the act”?

For the crime of assault, there is an expected prison term of from one to three years. In such a case, the police should require the approval of the district attorney, as set out in the criminal code. Can the attorney’s office go against its own decisions?

Can a citizen have confidence that the observation of and respect for legal procedures will be maintained in every case, in accordance with the legal framework of the country? And, what happens if you are not of that view?

Translated by GH

Prior Censorship, Decree 349 and the Constitutional Project of the Cuban Communist Party / Cubalex

Cubalex, 11 September 2018 — Decree 349/2018 sets up a system of prior censorship of cultural and artistic activities and other forms of expression, violating the freedom to carry out creative activities and the right to develop the human personality. It also offends against freedom of thought, belief and religion: and the right to hold opinion, to associate and to peaceful assembly.

In the Constitutional Project of the Cuban Communist Party, there is recognised, among other things, in relation to all citizens (although not all persons) the right to education, to culture, and its comprehensive development. Every person has the right to participate in the cultural and artistic life of the country. Men and women have equal cultural rights and obligations. Citizens should protect the natural resources and the cultural and historical heritage of the country. continue reading

The state recognises that the forms of artistic expression and artistic creation are free, but affirms categorically that its content must respect the values of a socialist Cuban society. This statement is a tacit recognition that prior censorship will be employed to supervise the content of the forms of artistic expression and artistic creation.

According to the Committee of Economic, Social and Cultural Rights, in its General Observation 21: The right of every person to participate in cultural life (Article 15 paragraph 1(a)), and also the other rights established in the International Agreement on Economic, Social and Cultural Rights, imposes on the states three types or levels of obligation:

a) the obligation to respect;

b) the obligation to protect, and

c) the obligation to comply.

The obligation to respect requires the Cuban state to refrain from interfering, directly or indirectly, in the enjoyment of the right to participate in cultural life, which includes the creation, individually, or in association with others, or in a community or group, which implies that the state should abolish censorship of cultural activities imposed on the arts and other forms of expression. In other words, it is necessary to repeal Decree 349 and provide a constitutional project which may be supported by all of us.

(1) Art. 43 of the draft Constitutional bill

(2) Art. 45 section 1) of Article 91 of the draft Constitutional bill

(3) Section h) of the draft Constitutional bill

Translated by GH

Habeas Corpus Proposed in the Constitutional Reform is Ineffective / Cubalex

Habeas Corpus will be elevated to constitutional status

Cubalex, M.sc. Laritza Diversent — Article 50 of the constitution, as proposed to the National Assembly by the Cuban Communist Party, will recognise Habeas Corpus. This guarantee against illegal arrest was the subject of parliamentary debate. The Deputy for Baracoa in Guantanamo province, Tamayo Mendez, made reference to this precept.

“Any person who is deprived of his liberty,” he read. “Here we are affirming that it was foreseen that someone may be illegally penalised,” he added. “No, not penalised, but illegally deprived of their liberty,” he was corrected by Deputy Jose Luis Toledo Santander, member of the constitutional editing commission. continue reading

“What is being addressed here is the protection of the right of an individual who is deprived of their liberty to due process as established by law. This process exists in the Law of Legal Procedures,” explained Toledo Santander.

Due process” for Habeas Corpus and the authorities’ practices

In effect, Habeas Corpus is regulated in domestic law, but offers no protection against arbitrary detention, nor against enforced disappearance.

For example, one of the “processes established by law” is that of denying Habeas Corpus, if, during the arrest, a “sentence of or order for a limited period of imprisonment” was decreed. Every year, the Cuban state and its agents undertake thousands of arbitrary detentions as a punishment for exercising freedom of expression, meeting and association. 

Additionally, it requires that “the place where the person is held be identified, as well as the official or his agent or the functionary who is holding him.” The government agents employ pseudonyms, wear plain clothes and do not identify themselves. As far as human rights defenders are concerned, they do not complete any detention paperwork, to isolate them and make it impossible to identify their location, opening the door to their enforced disappearance.

The tribunals limit themselves to verifying that the required procedural criminal documentation exists, and reject pleas for habeas corpus, without requiring the police officials to produce the person who has been detained and to explain when and why he was detained. It is unlikely they would agree to an applications for oral hearing.

Awarding constitutional status to a guarantee which does not comply with international standards does not constitute any advance in human rights, and is obviously ineffective.

M.sc. Laritza Diversent

Translated by GH

Decree #349 is "Against the Interests of Artists" / Cubalex

Cubalex, 23 August 2018 — According to Pedro Edgar Rizo Pena, in an article entitled “Demythologising Decree 349,” what the “activists against 349″ have not troubled themselves to analyse (perhaps due to lack of legal understanding, or not co-operating in reading and interpreting it) is that the decree promulgates the basis for the legal provisions which regulate self employment  in the country… that is to say, this fact destroys the argument that the decree acts against the interests of artists and their creative expression.”

I completely disagree with what the writer says. Decree 349, in its first “Insofar as,” indicates that it updates Decree No.226 (but in the Final Disposicion it revokes it) where this section expressly recognises its application to breaches of regulations and provisions currently in force relating to provision of artistic services in public spaces or premises, in labour matters and in regard to cultural, artistic and literary policy. It does not mention self-employment, and nor does Decree 349 expressly refer to it. continue reading

Nor does it refer to the Labour Code, as did its predecessor, by way of Law No. 49/83, which was repealed by Law No. 116/2014 (the current Labour Code), which authorises the Ministry of Culture (Article 76) to establish the procedure and the entities authorised to evaluate the eligibility and professionalism necessary to carry out artistic work, as well as the form of remuneration for artists.

It does act against the interests of artists and their artistic work

If Decree 349 does not act against the interests of the artist, what is the meaning of the offence mentioned in Section e) of Part 1 of Article 2. I quote: “In the offering of artistic services, there are contraventions … the person who performs artistic services in the absence of authorisation to carry out artistic work in an artistic position or occupation.”

Subsequent to the entering into force of the new Labour Code, the Ministry of Culture (MINCULT) promulgated Resolution No. 45, of 16th June, 2014, “Regulations for the evaluation system for workers in artistic fields.” This established an Artistic Technical Council or evaluation tribunal, whiich assesses the quality of work, qualitative development of the ability and skill of the individual or collective, and awards or withdraws the professional designation of artists (be they graduates of artistic teaching, general teaching, or amateurs) for artistic festivals, genres and specialities, and artistic responsibilities.

The Ministry of Culture and the Cuban Institute of Radio and Television authorise institutions to make and market artistic productions and services. Only these entities are authorised to establish employment regulations with artists and groups of artists, according to professional performance. They have to apply for permission when they wish to contract an artist who has no evaluation for a particular performance or piece of work. It is forbidden to enter into employment relations with artists lacking an evaluation, who are not graduates of the artistic teaching system (they can be reevaluated after a year). An artistic group which loses its evaluation is dissolved.

There is no legal relationship with the self-employment regulations

Finally, Decree 349 broadens its coverage from “public places or institutions” to “public places or institutions which are or are not state-controlled.” The unhindered discretion and legal uncertainty is increased when the government does not define what is meant by “public places or institutions which are or are not state-controlled.”

It also widens the range of those to whom it may be applied. Decree No. 226 was limited to those individuals performing on behalf of a state, private, or mixed entity. Self employed persons (in the non-state sector) were not included because they are not entrepreneurs and therefore there is no legal reason for the state to consider them as entities (see the constitutional project glossary of terms).

Those individuals are authorised to undertake an economic activity, which, in the majority of cases, they undertake in their own houses. Clearly they carry out alterations to these business properties (hairdresser, bakery, restaurant, etc.) but legally they remain private residences. The state does not classify them as businesses or see the value of the property in that way.  There is no justification for considering the place where they work on a self-employed basis to be one of the “public places or institutions which are or are not state-controlled,” let alone as “businesses.”

First published in Cubalex

Translated by GH

The Essence of Decree 349/2018: subparagraph a) of Article 2 / Cubalex

In the foreground, Vice President Miguel Díaz-Canel. Beside him, Miguel Barnet, president of UNEAC, and Abel Prieto, Minister of Culture (Photo: Leyben Leyva / Juventud Rebelde)

Cubalex, 27 July 2018 — Details of Decree 349/2018, dictated by the Council of Ministers, which establishes the “Violations of the regulations in respect to the cultural policy and concerning the provision of artistic services”: In accordance with subparagraph a) of Article 2.

Possible behaviors that violate this provision: 

That you approve or permit the realization of artistic service without said service having been approved and contracted for by the cultlural institution responsible for that artistic service.

That you approve or permit the realization of artistic service with the use of media and installations belonging to an entity, without said services having been approved and contracted for by the cultural institution responsible for that entity. continue reading

That you approve or permit the realization of artistic service with the use of those associated with the commercial activity which has authorization, without said services having been approved and contracted for by the cultural institution responsible for its authorization.

Applicable sanctions:

These behaviors are considered very serious and the amont of fine imposed is 2,000 Cuban pesos.

If in the period of one year the same person incurs more than one violation or is warned, this is considered another incident and a single fine of 4,000 Cuban pesos is imposed.

In addition they can seize the equipment, computers, fixtures and other property, suspend immediately the performance or the showing of material.

They also can cancel the authorization to show it, based on self-employed work activity.

Commentary and doubts: 

The non-specified norm that is understood by artistic services allows a wide margin of discretional activity to those charged with its execution. It’s a form of advance censorship because it doesn’t allow the realization of artistic activity without authorization from the Ministry of Culture.

You have to be approved and contracted by a cultural institution, but not just any, only the one responsible for the provision of artistic services. Can’t they give an example of the cultural institutions that provide artistic services?

Here it’s not clear to whom this rule is directed, to the owner of a business or a director of an entity belonging or subordinated to the Ministry of Culture? Please inform us if you know of any business that can be affected by these rules.

Is the fine of 2,000 pesos commensurate with the income artists receive?Make this calculation taking into account that many times their works require investment in raw material or high-cost equipment, in specific markets.

Comment and share! Send your responses to info@cubalex.org.

The entry The essence of Decree 349/2018: subparagraph 2) of Article 2 first appeared in Cubalex.

Translated by Regina Anavy

Without Guarantees of Due Process, Detentions Always Appear Unjust / Cubalex

Cubalex, M.sc. Laritza Diversent, 3 August 2018 — The constitutional reform will recognise Habeas Corpus, as it is applied in domestic law. An obviously ineffective procedure. It does not provide protection against arbitrary detention or enforced disappearance. Nor does it comply with international standards in terms of due process.

“No-one who is imprisoned considers that it is in order,” was  José Luis Toledo Santander’s cynical comment. “Everyone detained by the police considers himself innocent and to have been unfairly detained,” adds the deputy and member of the editing commission of the constitutional text. “That implies,” he concludes, “that every person detained by the police would be able to seek a writ of Habeas Corpus.”

Abuse of power and excess of discretional authority

The agents of police and security (Ministry of the Interior) have minimal training and excessive authority. After being recruited and a 6-month course, they are ready to exercise power and enjoy the impunity guaranteed by their uniform and their licence. continue reading

Whether on the orders of a superior, personal dislike, or a battle for territorial control — it’s all the same. No-one who has a business escapes the payment of tribute to the authorities. The evidence presented and declarations to a tribunal, whether true or not, carry more weight than the law itself.

In such circumstances, it is logical that everyone detained by the police considers himself unfairly detained. That’s the logic in a country where guarantees of due process do not exist.

Do you know that the police can interpret and apply, acting as judges, 27% of the offences in the Penal Code?

Without remission of the case to a tribunal, they are authorised to judge it, and apply a fine. When they exercise this power, they do not inform the detainees that, in the event of their accepting it, they are recognising their guilt (loss of the presumption of innocence) and abandoning the right to be judged by a tribunal.

Absence of independent, impartial tribunals

Do you know that the Committee against Enforced Disappearance (an office of the United Nations) is concerned that the subordination of the tribunals to the National Assembly and the Council of State affects the independance of the judiciary?

Yes, judges are subject to all types of political influence. Both of these state organs are charged with appointing, promoting, suspending, and dismissing them. A judge can be dismissed from a tribunal, for not being willing to join the Cuban Communist Party, which subjects them to conflicts of interest and intimidation.

Total absence of the right to defence and therefore the presumption of innocence

Did you know that the national tribunals only accept legal service contracts issued by the Collective Law Firms (Legal practices supervised by the Ministry of Justice)?

Yes, in practice they are obliged to contract defence lawyers from an organisation which is unique in the country and ideologically committed to the political group holding power in the country. This situation affects the right to freely select your lawyer.

Nor are the ONBC lawyers are not independent. They are subject to interference, pressure and undue influence from the authorities who intervene in the penal process, which prevents them from performing dilligently and fearlessly, acting against the interests of their clients.

First published in Cubalex

Translated by GH

What Rights are Affected or Restricted by Decree 349/2018? / Cubalex

T-shirts: Criminal Artist

Cubalex, 16 August 2018 — The Cuban State ,through Decree No. 349 of April 20, 2018, has deliberately adopted regressive measures without consideration or justification that disproportionately influence the exercise of civil, political, economic, social and cultural rights.

The decree limits equal access to worthy work to all people. It institutes forced labor by obliging artists to qualify with and establish links to a state institution in order to obtain remuneration for their work.

It establishes a system of retroactive censorship for cultural activities, the arts and other forms of expression, violating freedom for creative activity and the right to the full development of the human personality. It also violates the freedom of thought, belief, religion and of opinion, association and peaceful assembly. continue reading

Independent artists or those who do not have associations with the institutions of the state or groups of civil society will see themselves doubly discriminated against because their forms and means of expression are perceived by the state as a challenge, or an expression of political opinion.

It stimulates and promotes discrimination based on political opinion. It does not respond to any pressing public or social need. It does not pursue a legitimate purpose and is not compatible with the provisions, aims and objectives of international human rights law. It is not strictly necessary for the promotion of the general welfare of a democratic society.

On the contrary, it violates the principle of prior responsibilities that ensure respect for the rights or reputation of others, and the protetion of national security, the public order or health or public morals. With this decree victims are not needed, nor are affected groups or denunciations, and it does not take into account the guarantees of due process for the accused. The agents of the State will decide in a discretionary, selective and discriminatory way if any artistic manifestation promotes discrimination, violence or uses sexist, vulgar or obscene language.

Artists were not consulted before the adoption of Decree No. 349/2018 and the resolutions of the Ministry of Culture (MINCUL) that implemented this cultural policy. They are totally unprotected. They have no means to participate in the direction of public affairs nor in the process of formulation, application and adoption of public policy decisions that affect the exercise of their cultural rights.

They do not have access to effective judicial remedies or other adequate resources to obtain reparation, restitution, compensation and satisfaction or guarantees of non-duplication, in the event of possible violation of their moral and material interests. There are no mechanisms in the country to challenge this Decree in case of illegal, abusive, arbitrary, irrational or discriminatory application.

This article was first published in Cubalex.

Translated by Wilfredo Díaz Echevarria

In Debate: Replies to Doubts About Decree 348/2018 / Cubalex, Laritza Diversent

Together we can. No to Decree 349. A law that makes art a crime..

What are “artistic services?”

Cubalex, 2 August 2018 — Artistic services are those offered by government organisations authorised to contract artistic workers. Artistic services may be requested from these entities. As I understand it, they are like agencies which employ artists or groups of artists. An individual or a business contracts the service, and pays the organisatioon. Then, the agency pays the artist. (Resolution 44/2014 “Regulations governing work arrangements for those whose work is of an artistic nature.”)

Is this terminology only used for people who are paid for their work as artists, or is it for all artists who show up in a place, if it is an independent place, like ours, where they aren’t paid to turn up?

According to Resolution 54/2014 “Regulations governing artistic work evaluation”, AN ARTIST is a person who interprets or carries out one or several works in accordance with each appearance and speciality. continue reading

To work professionally in each artistic field, a work evaluation is essential, apart from those exceptions established by the employment legislation in force for this sector (Article 11)

The artistic evaluation is confirmed by way of the issuing of the appropriate Evaluation Certificate, and is independently authorised for each speciality or each artistic position on an individual basis for each artist, and for groups of more than one artist, without prejudice to the individual pay guarantee (Article 10)

The regulation imposed by Decree 349/2018: One may not work as an artist, or carry out artistic activities without government authorisation

In accordance with Decree 349/2018, only state-authorised artists can offer artistic services, on an individual basis or on behalf of a group, and payment for work carried out is only permitted for such people.

Only people with authorisation to carry out artistic work in an artistic  position or occupation can offer artistic services, on condition that they have a signed “established contract”, with a state institution which is authorised to contract artists and to approve their offer of artistic services.

If an artist provides his services without the authority of an employing organisation which contracts with him, then an offence is committed and he will be fined. Additionally, any instruments, equipment, accessories or other goods may be seized, the performance or relevant screening immediately cancelled, any authorisation to perform independently may be cancelled, and the employing organisation may apply disciplinary measures.

Do you know where the Cuban cultural policy may be found?

The Cuban cultural policy should be all the regulations imposed by the Ministry of Culture, a government entity of the Central Government Administration of the Republic of Cuba, charged with the direction, guidance, control and execution, within its operational ambit, of the cultural policy of the state and Cuban government, in order to guarantee the defence, preservation and enrichment of the cultural heritage of the Cuban nation. The Mincult (Ministry of Culture) has a website where the cultural policy is explained.

M.sc Laritza Diversent, Executive Director of Cubalex

First published in Cubalex.

Translated by GH

Cubalex Demands the Immediate Release of the Artists Luis Manuel Otero, Amaury Pacheco and Soandry Del Río / Cubalex


Arrest of Luis Manuel Otero

Cubalex, 22 July 2018 – Peaceful gatherings and demonstrations are essential for public participation

On the afternoon of July 21, 2018, Luis Manuel Otero Alcántara, Iris Ruiz, Amaury Pacheco, Soandry del Río, Yanelys Nuñez Leyva and José Ernesto Alonso met in front of Havana’s Capitol building, contrary to the regulations of Decree 349 / 2018 that violates and restricts the freedom of artistic creation.

Luis Manuel Otero “covered his body with human excrement” and in a poster he demanded “free art. No to Decree Law 349” adopted by the Council of Ministers. With the exception of Nuñez Leyva they were all arrested. In the case of Otero Alcántara the arrest was carried out with an excessive use of force and along with Iris Ruiz, Amaury Pacheco and Soandry del Río, they were transferred to the police station located on Zanja Street in the capital. continue reading

Along with José Ernesto Alonso, Iris Ruiz was released four hours later, accused of creating public disorder. Luis Manuel, Amaury and Soandry were transferred to the Vivac detention center, where they are accused of public disorder and aggression.

We remind the Cuban State that the freedom to comment on public issues without censorship or limitations, as well as to inform public opinion, is indispensable to guarantee the full exercise of participation in public affairs, which includes the freedom to hold peaceful demonstrations and gatherings, to criticize or oppose the government, and to publish political material.

The arrest of the artists is arbitrary, irrational, unnecessary and disproportionate, because it violates recognized international standards in relation to the guarantees of due process.

The procedure for legal detention in Cuba allows for arbitrary detentions, currently used by state agents as punishment for the legitimate exercise of freedom of opinion and expression, assembly and association, recognized in international human rights law.

States have the obligation not only to abstain from violating the rights of people who take part in a meeting, and to respect and guarantee the rights without any discrimination for prohibited reasons or of any other nature or any other condition of political opinion. The freedom to organize and participate in public meetings must be guaranteed to all natural persons, groups, non-registered associations, legal entities and companies.

In Cuba, access to public participation spaces is excessively and abusively restricted, as a result of which the full and free exercise of the freedom of peaceful assembly is practically impossible.

Cubalex demands that the Cuban State immediately release artists Luis Manuel Otero, Amaury Pacheco and Soandry del Río, and adopt urgent measures to protect human rights defenders against reprisals and eliminate undue restrictions on the use of public spaces.

The Risks of Defending Human Rights in Cuba / Cubalex

Cubalex, 4 April 2017 — In the cycles of the United Nations Universal Periodic Review (UPR), held in 2009 and 2013, the Cuban State rejected 32 recommendations calling for an end to repression against human rights defenders and lifting restrictions that impede freedom of speech, opinion, association, assembly and peaceful demonstration.

Members of the Human Rights Council suggested that the state ensure a safe, free and independent environment for human rights activities, without the risk of harassment, intimidation, persecution or violence. continue reading

They recommended that the state refrain from abusing the criminal code to repress and harass people. In addition, all necessary measures should be taken including a review of the legislation, to ensure that all cases of aggression against human rights activists are investigated by independent and impartial bodies.

The Cuban State objected to these recommendations, on the grounds that they were inconsistent with the exercise of the state’s right to self-determination; they claimed that this would imply implementing a policy conceived by a foreign superpower, with the aim of destroying Cuba’s political, economic, and social system.

However, the government claims that, in the country, human rights defenders are protected, on an equal footing, and act with total freedom and without any restriction that is incompatible with international human rights instruments.

The state adds that there are the millions of people who in Cuba are grouped in thousands of organizations, and who have all the guarantees for the exercise of their rights. They do not need different protection from that of anyone with Cuban citizenship. They are not a threat, they are not in danger, nor do they face the possibility of an act in violation of the conduct of their activities.

You Know Why Cubans Flee Cuba En Masse… / Cubalex

Cubalex, 30 March 2017 — Because there is no democracy or rule of law. Nor do the conditions exist to exercise civil, political, economic, social and cultural freedoms. The elite of the Communist Party of Cuba (PCC), maintains power through the structures of the State and the Government with repressive methods.

Workers have no right to strike nor can they freely create trade unions. The government refuses to legalize any social organizations that do not share the policies of the party elite. Dissidents and human rights defenders are stigmatized, harassed and ultimately imprisoned. continue reading

Opposition to the government can not be organized. There are no legal mechanisms for the existence of political parties. The PCC is the only party recognized in the National Constitution, which was drafted by the founders of this political organization, senior military commanders who have remained in power for almost 60 years; almost sixty years with two presidents, brothers named Castro.

This military elite, does not tolerate opposition, nor pay any political or economic price for harassing and repressing it. They are not open to public debate. Through the Law they harass people who openly criticize them.

They count on making an example of those who oppose them. The rest of society refrains from expressing their political preferences. They fear negative consequences in their lives. They are controlled by social and mass organizations.

The electoral law does not allow political parties to participate in the elections, but the PCC participates in them, through the mass organizations. They control the electoral process. They avoid competition and ensure that the members of this political organization are elected and appointed to hold office in government. Their leaders occupy positions in the highest party and state structure.

As a consequence, people with citizenship and residence on the island cannot run on equal terms. Nor do they have the mechanisms to participate in political and economic decision-making. The election of the members of parliament does not depend on their votes and political preferences.

They are excluded from intervening in the national economy, a privilege only allowed to foreigners. While the country’s economic situation is precarious and worsens, the State limits its ability to generate income. It obliges them, through the exercise of self-employment, to carry out non-professional economic activities with only minimum profit margins.

If Cubans dramatically flee the country, it is to seek better opportunities for their lives, but also to seek freedom. “When the people emigrate, the rulers are superfluous,” is a phrase of José Martí’s that today is fully in force.