How Does The Cuban Government Keep An Eye On You? / Cubalex

Cubalex, 6 January 2020 — After the publication of Decree-Law No. 389/2019, special techniques of investigation were introduced, including undercover operations, successful collaboration, the use of electronic or other types of surveillance and controlled deliveries.

The same Decree-Law establishes that these techniques are appropriate or necessary for the investigation of criminal acts, which, by their gravity, connotation or organization require them, including operations whose origin or destination are outside the country.

Although the use of these measures is not new in the Cuban context, in the particular case of electronic surveillance there has been a surge in their application now that more people have access to cell phones and Internet accounts, and it’s the first time it has been legalized. The benefit of this new reality is that at least the general guidelines for their application are now published. continue reading

Another positive element is that, at least formally, the Ministry of the Interior is required to guarantee confidentiality of the information obtained through electronic surveillance if it has no relation to the crime. The information will not be divulged and will be destroyed. In addition, conversations between the accused and defense counsel cannot be recorded.

However, there is a big drawback to the regulation, because it can even call into question the constitutional recognition of due process (Article 95), the right to privacy (Article 48) and the inviolability of correspondence (Article 50).

The use of the above-mentioned techniques will not be authorized by the court but by the prosecutor. According to Article 110, paragraphs 2 and 3 of the Law of Criminal Procedure, whatever is drafted after the new modifications will allow prosecutors to authorize the application of the special investigation techniques.

Translated by Regina Anavy

I Have No Confidence in the Cuban Constitution / Cubalex, Julio Alfredo Ferrer Tamayo

Cubalex, Lic. Julio Alfredo Ferrer Tamayo, 13 November 2019  — Unfortunately, in the Cuban legal context, there is no Constitutional Tribunal, or, to put it another way, there are no constitutional guarantees. Along with many lawyers, non-lawyers, and legislators as well, I was hoping for a change. Along with other colleagues, I had confidence in the national constitutional tradition, and especially in the milestone represented by the Constitution of 1940, recognised as the most advanced in Latin America, for its time;  nevertheless, it didn´t work out like that. Everybody, whether they voted yes or no, continues with no constitutional guarantees.

In order to be implemented, the new text, in force since April 10th, 2019, needs legislation, which hasn’t yet been prepared, and requires various time periods in which to do it. This gap has given rise to what many have called the “legislative gap”, or “legal limbo”, which is simply a period of legal system paralysis, while waiting for the legislation to be passed. At the moment, the Constitution remains an undelivered message.

To sum up, we Cubans have to wait six months for the new Electoral Law regulating election of representatives to the National Assembly, its President, Vice President, and Secretary; as well as the Council of State, and the President and Vice President of the Republic. And this is going to be delayed even further by other processes. For example, the regulations for the National Assembly will be delayed a year, and two years for the Council of Ministers, the provincial and municipal governments, and their administrative councillors. continue reading

The enactment of the law on Popular Tribunals is eighteen months away, as are also the modifications to the Laws on Penal, Civil, Administrative, Employment and Economic Procedures, and also the legislative modifications needed to effect Art. 99 of the new constitution.

As far as the Family Code is concerned, which is the window which still holds out the prospect of a marriage of equals, there are still 24 months before the start of the popular consultation process and the relevant referendum.

“The most completed and advanced of the Cuban constitutional texts”, which is what Homer Acosta Alvarez, the Secretary of the Council of State, has termed the new Constitution, will be applied bit by bit, because it needs, according to Homer himself, no fewer than 50 items of legislation. And, really, it is difficult to be optimistic about it.

The legislation which backed up the 1976 Constitution was not a happy memory. We can recall the Law on Migration (it dealt with the right to leave the country with an exit permit, a carte blanche, authorised by the Ministry of the Interior), or the Law on Association, and its Regulations (it conditioned the right of association upon prior permission of the Ministry of Justice).

We can think of other equally disastrous legislation, such as Order 149 (which violated the right oto personal property enshrined in Art. 21 of the said Constitution. And also Decree 217 of 1997 (imposed innumerable legal requirements on Cuban citizens of other provinces wanting to reside permanently in Havana).

What we can learn from such legislation is that they are a double-edged sword, holding back and restricting rights proclaimed in the text of the constitution, preventing citizens from exercising them.

Will it be the same this time around? I think so. We Cubans need to be very watchful over this legislation, because they will have been enacted without prior popular consultation, and therefore people will not be able to influence the contents, in spite of the democratic process they have been boasting about.

We remember that Art. 26 of the old Constitution recognised the right of every individual who suffers loss or is prejudiced by inappropriate action by officials or agents. Later, this right was restricted by Section 2 of Art. 96 of the Civil Code, which subordinated its exercise and implementation to declarations of illegality on the part of the superior state authorities. That is to say, if the superior state authority thinks it is not in the state’s interests, there will be no compensation, or indemnification, or any constitutional rights worth a bean.

This right, with identical wording, is anticipated in Art. 98 of the new Law of Laws. It remains to be seen if the regulations which are to enact this constitutional precept, let’s call it Civil Code, will set up a legal mandate of subordinate status, constraining the right to compensation and indemnification for damages improperly caused by state authorities.

If the new Constitution had conceived of a Tribunal of Constitutional Guarantees or other similar entity with the authority and structure necessary to protect the constitution, then those persons who had seen their rights infringed would have had an organisation to go to in order to defend the constitutional position. That organ would be a defensive wall against arbitrary action.

Translated by GH

Is What Happened After Jose Daniel Ferrer’s Detention The Exception Or The Rule?

Jose Daniel Ferrer, leader of the Cuban opposition organization UNPACU

Eloy Viera, from El Toque, published by Cubalex, 19 November 2019 — On October 1st, 2019, Jose Daniel Ferrer, leader of the opposition organisation Patriotic Union of Cuba (UNPACU, by its initials in Spanish), was detained by the Cuban police in his home. His family stated that, for a period of several days, they were unable to verify his whereabouts or physical condition.

On October 29th, the United Nations Committee Against Forced Disappearance issued a “request for urgent action” to the Cuban government, asking for, among other things:

To clarify immediately what has happened to Jose Daniel Ferrer Garcia, and where he is.

To inform his family members and representatives … what has happened and where he is, and … permit his family and representatives to make immediate contact with him. continue reading

In the event of his precise location being unknown, to take all necessary actions to clarify where he is and what has happened to him … including the adoption of a comprehensive and exhaustive strategy to find him and to investigate his alleged disappearance.

If his detention is confirmed, to bring Mr Ferrer Garcia immediately before a judge, having informed him precisely of what crimes he is accused, and affording him access to a lawyer.

The United Nations Committee’s pronouncement is based upon the Convention relating to the Protection of Persons against Forced Disappearance. Cuba signed and ratified the Convention in the years 2007 and 2009 respectively, as a result of which, in accordance with International Law, it has assumed the expectations and obligations of that legislation.

According to the Convention, “the arrest, detention, kidnapping, or any other form of deprivation of liberty, whether resulting from the activities of agents of the state, or those acting with the authorisation, support, or acquiescence of the state, accompanied by a failure to recognise said deprivation of liberty or the concealment of the situation or whereabouts of the disappeared person, depriving him of the protection of the law”, is a forced disappearance.

ON WHAT BASIS CAN THE COMMITTEE AGAINST FORCED DISAPPEARANCE ASSUME THAT THE CASE OF JOSE DANIEL FERRER MAY CONSTITUTE A FORCED DISAPPEARANCE?

The legal instrument intended to protect the individual against forced disappearance and arbitrary detention is habeas corpus.

 Habeas corpus in its classical sense provides a direct form of protection for the individual in terms of personal liberty and physical condition.  In order to be able to confirm that a person has benefitted from a habeas corpus process which meets international standards, it is essential that the person detained be presented before a judge as quickly as possible.

Habeas corpus does not just permit the assessment of the legality of a detention or disappearance, but also serves as an instrument by which an impartial entity (a judge) may consider whether the authorities, or those appointed by the state, have respected the individual’s life and physical condition. The physical appearance before a judge of the detainee prevents the location of the detention being kept secret, and protects him against torture or other cruel, degrading or inhuman treatment or punishment.

After more than 15 days’ detention, Jose Daniel Ferrer’s family members claimed that they did not know where he was being held, his physical conditions and the crime of which he was accused. For this reason, they lodged an application for habeas corpus before the Popular Provincial Tribunal of Santiago de Cuba.

They hoped to obtain the support which “theoretically” is offered by Cuban law in such situations, as set out in the currently applicable regulations which acknowledge that a judge who is in receipt of such an application may:

Order the authority, or official, having charge of the detainee, to present him, at the time and date specified, before the Tribunal, within a space of 72 hours.

Require the same authority, or official, to provide a written report indicating when and why he was detained.

If the judge is informed that the person in question is not being detained by that authority, he may require anew that it be clarified whether, at any time, he was so detained, and whether he was transferred to another authority or official, indicating their identity.

On presentation of the detainee and the report, he may arrange an oral hearing in order to hear the interested parties and assess the evidence presented. Following this hearing, the judge is in a position to take an informed decision, which may or may not lead to the freeing of the detainee.

Nevertheless, the application presented was responded to by way of Order 39, dated October 18th, 2019, in which the judges declared that the application for habeas corpus had no merit.

The judges, without having undertaken any of the aforementioned procedures, considered that “the application has no merit” because Ferrer is being processed by way of a Preparatory Phase Action initiated on October 3rd, 2019, covered by an Act of Detention, dated the first of the said month. Moreover, they considered that his detention is in response to A Precautionary Measure of Pre-trial Detention issued by a prosecutor on October 7th, 2019.

The unofficial versions of the announcements, which were circulated afterwards by the Committee on Forced Disappearances, and the campaign in favour of the release of Jose Daniel, as well as the nuances which were introduced, do not detract from any of those arguments.

So, in the absence of any official written pronouncement to clarify the current situation of the leader of UNPACU, the assumptions of the Committee Against Forced Disappearances are not unfounded.

IS WHAT HAS HAPPENED WITH THE HABEAS CORPUS OF JOSÉ DANIEL FERRER THE EXCEPTION, OR THE RULE?

The report issued in Cuba on the Periodic Assessment of Human Rights (by the United Nations) in 2018, stated that “there is an immediate right of application for habeas corpus to challenge the illegality of deprivation of liberty and detentions … between 2010 and June, 2017, the tribunals considered 156 applications for habeas corpus. In 8 of them it was agreed the application had merit and the detainee was immediately released”.

These numbers, rather than demonstrating the ethics of the Cuban authorities, and the absence of arbitrary detentions or forced disappearances, evidence the inefficiency of Cuban habeas corpus and its resultant lack of use by legal professionals.

Because of the design of juridical regulations in Cuba, it cannot be considered that “judicial supervision”, which is essential in habeas corpus, is a guarantee for those deprived of liberty or who are detained. In Cuba, the supervision of the legitimacy and legality of such situations is not in the hands of a judge, but rather in those of the party with the principal obligation of investigating crime and representing the state in achieving a judgement: the prosecutor.

The decision proffered by the Provincial Popular Tribunal of Santiago de Cuba in response to the habeas corpus application presented in favour of José Daniel Ferrer, demonstrates this. What the judges did, and do, in this , and in the majority of these cases, is deny the person affected the opportunity of an “impartial” tribunal to assess the reasons for his detention, the circumstances in which it arose, and its legality.

The Cuban regulations consider that all acts of the police and instructions approved by the prosecution are legal, and do not need to be supervised or evaluated by the tribunals. Art. 467 of the Law of Penal Procedure establishes that: “applications for writs of habeas corpus shall not proceed in cases in which the deprivation of liberty results from a sentence or order of pre-trial detention in respect of a criminal act.

That provision allows judges not to analyse the application presented in favour of José Daniel Ferrer, and so, not to require his presentation before them, not to mention the crime of which he is accused, and not to assess his personal circumstances or to define his place of detention.

It would have been good if the judges, rather than hold that the application “had no merit” had expressed what really had happened: that they were unable to decide whether or not the interested party was right. They took advantage of the ability granted them by law and did not seek to establish the details or to evaluate the arbitrariness of a detention which has been described as politically motivated.

If they had done the opposite, then probably the Committee Against Forced Disappearances would not have needed to present its petition for urgent action. Nevertheless, the way most of the Cuban penal process is designed, including that of applications for habeas corpus, detached from international standards of due process, will ensure that there is much to occupy the attention of the United Nations Human Rights Council Working Group on Arbitrary Detention Working Group.

ESTABLISHED LEGAL PROCESS FOR POLICE DETENTION OF AN INDIVIDUAL

The police are aware of a crime, or capture someone in the course of its commission. For this reason, they may detain for 24 hours.

In order to justify the detention, there needs to be a formal report, or it should be prepared immediately afterward.

Following the detention, and once the suspect is in police custody, an Act of Detention should be prepared.

____________

In the case of offences attracting an award of more than 12 months´  loss of liberty, then, following the 24 hours, if the police decide to continue the detention, the matter must be reported to the instructing body, for the preparation of an Initial Hearing Report.

In the case of offences attracting an award of up to 12 months´  loss of liberty, the police have 72 hours in which to determine the detention and the investigation, and to report to the prosecutor in the event of wishing to extend it.

In the case of offences attracting an award of more than 12 months´  loss of liberty: following preparation of the Initial Hearing Report, a furtheR 72 hour period is available for the determination regarding the release of the detainee.

___________

If the decision is to continue the detention of the accused beyond the 72 hour period, the Attorney´s office should be requested to validate such decision.

The Attorney´s office has a further 72 hours to decide such application.

_____________

INITIAL 24 HOURS (POLICE) + 72 HOURS (INSTRUCTION) + 72 HOURS (ATTORNEY) = 7 DAYS DETENTION WITHOUT CONTROL OR SUPERVISION BY IMPARTIAL ENTITIES, AND WITHOUT POSSIBILITY OF DEFENCE

Translated by GH

Executive Order 389/19: Big Brother is Watching You in Cuba / Cubalex

Cuban authorities arrest a Cuban human rights activist from the Ladies in White

CUBALEX, 10 December 2019  — Tapping phone lines, using electronic devices to follow you around, planting cameras, monitoring mail and personal conversations, taking video recordings without permission; these have been the Cuban regime´s habitual practices. Up to now it was all done arbitrarily and illegally, but last month they approved “the use of electronic surveillance” without need for previous judicial authorisation.

Executive Order 389  of the  Council of State, signed by the head of state Miguel Diaz-Canel and published in the Extraordinary Official Gazette No. 27 of November 18th, evisages its application in investigations into “money laundering offences, and financing of terrorism, in defence of national interests”. In the same way, the text indicates it may be employed to “prevent the use of national territory for these ends”.

But in the Cuban context it can be assumed that those affected will be members of the opposition and organisations in civil society. continue reading

Cubalex explains the implications of Executive Order 389/19 for Cuban citizens.

“Electronic, and other types of surveillance” v. the right to privacy and a private life

The Order 389/19 modifies the Law of Penal Procedure and authorises legal investigation agencies to use electronic and other types of surveillance, with the prosecutor’s approval.

They are defined as “use of media whose application enables listening to and recording voices, localising and following around, placing cameras and shooting images, monitoring any type of communications, accessing computerised systems and other technical resources which enable the identification and evidencing of criminal acts”.

An important element of this type of surveillance, which is not mentioned in the Order is that it enables the authorities to monitor a person´s actions without their knowledge or consent.

Tapping into any kind of communications will give the green light to the use of monitoring software (otherwise known as “spyware”) which may be installed in any kind of computer, tablet, or smartphone to secretly monitor its use without the user knowing.

The “spyware” would allow an abuser to have access to everything in the phone, as well as the abillity to intercept calls and listen in to them. Therefore, the authorities could be able to access our social media or email.

How would DL-389/19 affect our tight to privacy and a private life?

According to the United Nations Office Manual on Drugs and Special Investigation Methods, these should be authorised by a competent legal authority, and carried out in the most discrete and confidential manner.

Does the public prosecutor have this jurisdictional authority? Internationally, public prosecutors are not considered to be officials excercising judicial functions. The correct operation of the judicial function requires that those exercising it be independent, objective, and impartial in relation to the matters they deal with.

The impartiality required of the District Attorney’s office derives from the legailty of the tribunals and is independent of either the positions taken by the parties concerned or of the authority charged with instructing or undertaking judgement.

The fact that the Attorney’s office prosecutes the action as the representative of the state and is a part of the penal process makes clear that it is an inappropriate instituition to be given the ability to authorise particular investigation methods.

These methods would be employed by the Attorney prior to the oral hearing, in the absence of any supervision or judicial control. The criminal investigations are  presented  to the judicial entity on the conclusion of the investigative process. This stage may legally be delayed for up to 60 days, a term which may be drawn out by the Attorney without limit as to time.

The total absence of judicial supervision increases the amount of discretion available to the agents of the state during the preparatory stage of the case and permits arbitrariness in the use of those methods, especially in relation to the individual’s privacy and private life, at a time when the strictest caution and discretion should be being exercised.

Nor do we have effective legal appeals. The Law of Legal Proceedings authorises the presentation of complaints to the Investigating Judge in relation to his decisions, or in relation to those of the Prosecutor, which may cause irreperable damage. The appeal is handled by the Attorney, or his superior in the event of the Attorney having authored the decision in question. In the case of the special investigation methods, the Attorney is both judge and jury. Additionally, his decision may not be subject to judicial review.

Therefore, how can we protect ourselves against abusive and arbitrary invasions of our privacy? The absence of judicial supervision and adequate legal appeal  renders illusory the right recognised by Art. 92 of the Constitution: “The State guarantees, in conformity with the law, that the individual may enjoy access to judicial entities with a view to obtaining effective judicial protection of his rights and legitimate interests…”

DL-389/19 does not confer exceptional status on special methods, and also permits them to be employed before the obtaining of the Attorney´s approval, and to be included in the record of the preparatory stage, after having obtained the evidentiary documentation on the alleged crime.

Another aspect open to question is the legitimacy and validity of this executive order, passed by 3.47% of the national deputies “elected” by the “people”. Its adoption violates basic principles of the structure and operation of the domestic legal code. Without doubt, the Council of State is exceeding its remit. It modified laws passed by the National Assembly, a “supposedly” superior body.

DL-389/19: Strengthens the domestic legal code, or increases the discretion of the agents of the government?

“To strengthen the internal penal code, in relation to that which is enacted in international treaties in force in the country”, indicates the Council of State in Executive Order 389 (DL-389/19) to justify its adoption.

Once it ratifies a treaty, the state is obliged to adopt legislative and other measures, to guarantee its application in domestic law. I certainly recognise, although not without some concern, that the state attempts to juggle its  own legislation with its international obligations.

The problem arises on the adoption of a regulation which is incompatible with other obligations derived from other treaties, undertakings and mandatory rules which admit of no conflicting agreements, such as the Universal Declaration of Human Rights (UDHR).

Many people will say that the UDHR does not have binding force because it was adopted by the General Assembly of the United Nations. Nowadays no-one argues against its obligatory nature, and it is widely accepted by the General Assembly and other human rights entities as a model against which to measure countries’ conduct and practices.

The United Nations Office against drugs and crime issued a manual on Special Investigation Methods, in which it sets out certain principles in relation to their use. According to the documents, such methods must be carried out in a way which shows respect for the state constitution, accords, international treaties currently in force, laws, and other regulations.

In conclusion, no oregan of the state may adopt regulations or legal provisions which are incompatible with international obligations. Executive Order 389/19 has the capacity to violate internationally protected human rights, especially the right to privacy and a private life.

It also violates rights recognised in the constitution:

– 48: “Every person has the right to have his privacy and private life respected.”

– 49: “The home is inviolable. No-one may enter another person’s home without the permission of the person living there, other than by express order of the relevent authority, by way of correct legal forms and for reasons already defined by law.”

– 50: “Correspondence and other forms of communication between individuals are inviolable. They may only be intercepted or registered by way of the express order of the relevant authority, in all cases with reference to the formalities established by law. Documents or information obtained  by way of infraction of this principle may not constitute evidence in any proceeding.”

Translated by GH

United Nations Acknowledges Freedom of Speech Crisis in Cuba / Cubalex

A group of Cuban independent journalists and activists all stopped at the airport on the same day in October of this year, and prevented from leaving the country. (Inalkis Rodríguez / La Hora de Cuba)

Cubalex, 10 November 2019 — Cuba and Venezuela  were flagged up by the United Nations as the countries in the region with the worst indicators in regard to promotion and protection of freedom of speech.

For years, both countries have been evidencing a crisis in freedom of speech, according to the UN special rapporteur.

The suppression of independent communicators and political activists has increased in the last year on the island. There have been 54 aggressions against unofficial reporters, 11 of which were women, as reported to th Association for Press Freedom (APLP) as of June 2019. continue reading

As a part of these aggressions, the reporters are intimidated, have their homes observed, their houses broken into, they are confronted in the street, and have their means of work confiscated. They are also arbitrarily detained by state security, normally for hours or days on end.  In late March, the journalist Roberto Quinones was detained, and they took action against him, resulting in his being locked up for a year.

This case was denounced by independent Cuban organisations and media. The  conviction of this Cuban journalist has been included in OneFreePress’s list of the ten most serious cases of injustice against journalists, and Amnesty International named him as “prisoner of conscience.”

On top of all these measures, there is refusal of permission to leave the country for random periods. This year, nearly 200 Cuban citizens have complained of their “regulated” status.

Another coercive measure against free speech is contained in Cuba’s own legal code. Law 88, better known as the “gagging law” threatens decades of imprisonment for those who contravene it.

Law 88 decrees the suppression of private reporting if it tries “to subvert the internal order of the state and destroy its political, economic and social system.” The last time this repressive measure was applied was during the Black Spring in 2003. At that time 75 people were locked up, and nearly a third were reporters.

Last May, the president of the Supreme Popular Tribunal, Ruben Remigio Ferro, reported on his Twitter account that the gagging law remains in force and could be applied again in the country.

First published in Cubalex.

Translated by GH

This Is How Female Journalists Are Suppressed In Cuba / Cubalex

Larisa Diversent, a founder of Cubalex who was forced to leave Cuba under threats to herself and her family. Photo: Tracey Eaton

Cubalex, 1 November 2019 — One day before the 1st of May march in Havana, the reporter from the independent daily 14ymedio, Luz Escobar, was confronted by a State Security official to stop her attending the workers’ procession. The agent of the Cuba political police warned her she could be detained if she went to the Plaza of the Revolution

She had received similar threats the day before a “kiss-in” organised by LGTBI+ groups in support of same-sex marriage, and, on the morning of April 7th, when an animal rights march was organised in the capital.

Luz managed to report both of these events without the threats coming to anything, but in the afternoon of May 8th she was arrested by the national police. From a homeless refuge in Boyeros, where they found her, she was taken in an official car to the military base. Five hours later they let her go. continue reading

Later in that month, on May 22nd, they prevented Escobar from flying to Washington to take part in Independent Art and Journalism workshops, organised by the Cuban Soul Foundation. In the Jose Marti international airport, she was informed by the immigration officials that she couldn’t travel because she was subject to an investigation. As of today they are continuing to prohibit her from leaving.

These attacks on the 14ymedio reporter took place in the context of a wave of repression mounted against the independent press in recent months in Cuba. Up to June 2019, the APLP (Asociacion Pro Libertad de Prensa – Association for Freedom of the Press) has received 54 reports of aggression against independent reporters, 11 of them women. And they have blocked access to three new unofficial press media.

As part of these aggressions, the reporters are intimidated, their houses broken into, their homes kept under observation, they are pestered while walking down the street, and their means of work seized. Another usual harassment tactic in most cases is arbitrary detention for several hours. Although, at the end of March, the Cubanet reporter Roberto Quinones, passed five days in prison in the east of the country, for trying to cover the imprisonment of two pastors who wanted to educated their children at home. Resulting from this detention, today Quinones has completed a year of being locked up accused of resistence and disobedience.

As well as this coercion, they add in prohibitions on leaving the country for random periods of time. At least 196 Cubans have protested against their status as “regulated persons” up to the end of September. This is the category used by the government to limit the mobility of specific individuals after eliminating the white card, or exit visa, in 2013.

The reporters are a group who are most restricted in their movements. In June, for example, the journalists Ileana Colas and Maricel Napoles were not allowed to travel to take part in the General Assembly of the OEA (Organisation of American States). At Havana Airport they were told that they were “regulated persons.” Now, 60% of the reporters subject to these restrictions are women, according to APLP information.

The Cuba Regional Vice President of the SIP (InterAmerican Press Society) Commision for Freedom of the Press and Information, Henry Constantin, in his penultimate report, pointed out that, although it is men who are detained most frequently and for longest, it is the women who are sanctioned  for longest, especially those with children: “Karina Galvez — economic analyst and member of the editorial council of the Convivencia magazine — is serving a sentence of three years for a trumped-up charge, which forbids her to leave her town and requires her to carry out humiliating work in order to not be sent to jail,” states Constantin.

These intimidations of reporters, in the midst of a society which is beginning to get computerised, also happens in the digital sphere. Several independent communicators are victims of different defamatory cyber campaigns. In the month of June, the director of 14ymedio, Yoani Sanchez, denounced hate and misogynous messages from public officials in the social media.

Independent female journalists on the island suffer distinct types of gender-related violence which men are generally not subject to. Female reporters, for example, have denounced sexual harrassment and compulsory stripping and having to squat down in the middle of the interrogations. They have also suffered mistreatment in their homes at the hands of State Security collaborators, with offensive notices stuck on the outside of their houses.

The main threats against them focus on their families, especially their young children. Dismissing their security guard or care arrangements, depriving them of their liberty, are the most frequent.

Adriana Zamora, a journalist with Diario de Cuba, received threats against her life and that of her baby while she was pregnant. Now she is in exile, a decision which at least 7 journalists monitored by Cubalex have been forced to take this year. Another 3 are inactive.

Elderly family members, or those in poor health who are dependent on medical assistance are also on the receiving end of threats. Those who are mothers or carers are vulnerable.

Translated by GH

Is Education Free in Cuba? / Cubalex

Cuban schoolchildren during the ceremony where they take on the red scarf. (14ymedio)

Cubalex, 30 September 2019 — Last April 18th, in the city of Guantanamo, pastors Ramón Rigal  and Ayda Expósito received a citation from the municipal tribunal. On that day they started a summary process against them, which ended up with jail sentences of 2 years, and a year and a half, for “actions against the normal development of a minor”.

The Christian leaders, who belonged to the Iglesia de Dios in Cuba, had decided to provide home education to their children Ruth and Joel, aged 13 and 9 respectively. They adopted “the certified methodology of the Hebron College of Guatemala study plan,” according to the Liga Evangelica.

In the legal action against the pastors, the prosecutor indicated that “home education is not permitted in Cuba, because it has a capitalist basis” and that only teachers have the ability to “inculcate socialist values.” continue reading

For their part, the parents expressed their right to decide what type of education thier children should receive, as laid down by Article 26 of the Universal Declaration of Human Rights. In spite of the fact that the island is signatory to the Declaration, the country is solely able to conceive of state schools providing secular education.

“Numerous religious groups, including the Catholic church, have repeatedly brought up the lack of options in Cuba in respect of primary and secondary education, especially for parents who do not want their children to be educated in an aggressively atheist curriculum, according to Anna-Lee Stangl, Head of the Christian Solidarity Defence Union.

The Cuban state guarantees a free and accessible education, but does not allow parents or legal tutors to choose other programmes for children. Students may not receive a religious or moral education in accord with family beliefs in study centres.

Individuals are not at liberty to run educational institutions or other options which do not provide a secular programme. Education is the sole prerogative of the state, which imposes on parents the duty of educating their children in moral, ethical and civic values in conformity with life in a socialist country.

More than that, the teaching is based on precepts promoting ethical, moral, civic and patriotic values, including military preparation, which is in conflict with the moral and religious convictions  of some social groups.

Translated by GH

Confirmation of Electoral Constituencies / Cubalex

From Cubalex – January 2019 

Step 5

Before calling elections, the Municipal Assemblies of Peoples’ Power (AMPP), divide their areas up into electoral constituencies, on the basis of the number of inhabitants in the Council area, and, after they have constituted them, present a proposal to the Municipal Electoral Commission, which, in turn, submits them to the respective Provincial Electoral Commission for approval.[1] The law does not lay down a time period in which to do this.

Note: This should happen before the Electoral Constituency Commissions are constituted, which, according to the official media, should happen before January 13th, 2019, the date upon which all the national electoral entities should be in place. The logic is that, in order to constitute the Electoral Constituency Commissions, the electoral constituencies should already have been determined. The law is silent on this matter. continue reading

In view of the haste with which this process has been carried out, it must be assumed that the constituencies approved for the previous elections in 2017 and 2018 will be used. At that point, they created 12,515 constituencies throughout the country, and 24,361 electoral colleges. 8% of the electoral colleges were in private houses.[2]

Step 6

The Provincial Electoral Commission decides the proposals for electoral constituencies submitted to them by the Municipal Electoral Commissions.[3]

Note: This should happen before the Electoral Constituency Commissions are constituted, which, according to the official media, should happen before January 13th, 2019. It is estimated that at least 12,515 electoral constituencies will be created across the whole country, based upon the official data on the elections which took place in 2017 and 2018. [4]

Step 7

The Municipal Electoral Commission designates the members of the Electoral Constituency Commissions in the time period established by the Council of State (between the 4th and 13th of January, 2019) in order to establish the subordinate electoral organs.[5]

[1] Article 12 and Subsection b) Article 26 of Law No. 72 of 29th of October 1992, “Electoral Law”.

[2]  http://www.granma.cu/elecciones-en-cuba-2017-2018/2017-07-21/mas-de-20-000-colegios-participaran-en-los-comicios-21-07-2017-00-07-58

[3]  Subsection f) Article 24 of Law  No. 72 of 29th October, 1992, “Electoral Law”.

[4]  http://www.granma.cu/elecciones-en-cuba-2017-2018/2017-07-21/mas-de-20-000-colegios-participaran-en-los-comicios-21-07-2017-00-07-58

[5] Subsection c) Article 16, Article  21, Subsections c) and ch) of Article 26, Article 29 and Subsection ñ) Article 30 of Law No. 72 of 29th October, 1992, “Electoral Law”

Translated by GH

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

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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