New Reforms to Emigration Policy? / Laritza Diversent

Although recent legislative changes to immigration laws in Cuba represent a step forward, they still retain aspects that are political and restrictive in nature and in violation of the right to free movement.

The changes to immigration regulations do improve the legal wording and drop any reference to entry and/or exit permits and to the letter of invitation, which had been a tacit acknowledgement of Cubans’ inability to travel from an economic point of view.

In practice the situation remains the same. The requirements of most of foreign embassies located on the island and the high fees charged for travel documents, which must be paid in hard currency, make the possibility of traveling overseas an impossible dream for most Cubans.

However, new policies have been put into effect and new categories have been created. In residential real estate, for example, guarantees are now being offered to foreign residents and their families as well as to owners and renters of real estate on the island.

The state is clearly focusing on sectors with economic potential: foreigners and emigres. The latter are being given the opportunity to reclaim a residence on the island and with it the right to take part in elections, become self-employed, buy cars and homes, etc.

However, the possibility that the Ministry of the Interior might grant this right to Cubans living overseas — to people not physically living in the country — no doubt means that it will choose which emigres shall and shall not regain their rights.

16 June 2014

What Can an Independent Lawyer do in Cuba? / Laritza Diversent

In Cuba, professionals can’t work for themselves in the specialty in which they graduate. Legal counseling and consulting are not recognized as self-employed activities, the only actions that a lawyer can perform independently. The few that make this decision have to do it for free.

It’s also difficult to form an autonomous association. The red tape required to legalize a non-profit organization assures that the State has absolute control over it.

To these limitations economic dependence is also added. The lawyer who doesn’t work for the State doesn’t earn anything. In order to survive, in a system where the economic crisis is permanent, independent lawyers collect extra honoraria, even when the regulation on the practice of advocacy, among other causes, considers it a serious shortcoming to receive honoraria that are not established or are better than those officially approved, whether in cash or in kind. A double morality is imposed by these conditions on the practice of advocacy in Cuba, and with it comes total submission to the system.

See Artículo 59.3 inciso c, Resolución No. 142/84 “Regulation on the practice of Advocacy and the National Organization of Collective Law Firms.”

From Jurisconsulto de Cuba, by Laritza Diversent

Translated by Regina Anavy

9 June 2014

Will a Complaint Be Enough to Defend Our Rights? / Laritza Diversent

According to international legal instruments, “Everyone has the right to an effective remedy by the competent national tribunals to be protected from acts violating their fundamental rights granted them by the constitution or by law.”

No national competent institution regarding the promotion and protection of human rights is recognized within the Constitution of the Republic of Cuba[1]. The Cuban government considers that such an institution is not an identified need for the people of Cuba, based on their willingness to continue to build a society that guarantees all justice[2].

According to the Cuban government, the state has a complex and effective inter-institutional system, which includes the participation of NGOs, in order to receive, transact and respond to any complaint or request made by individuals or groups, concerning the enjoyment of any human right.

The system provides for the reception of complaints, mandatory responses but no restitution if it was proven, and their transmission through the courts. The term to respond is too long and doesn’t provide for an exception for urgent cases or for irreparable damages.

In practice, none of them will go deep into the investigation of the case to verify alleged violations. Nevertheless, according to the government “this system has proven effective in practice and has the capacity to respond to the interests, complaints and denunciations of alleged human rights violations”.

Learn about the state bodies that intervene in this system and the obligations they have on: “National Institutions for Promotion and Protection of Human Rights”, in the legal Cuban system?

[1] Information brochure No. 19 of the United Nations Office of High Commissioner for Human Rights, “National Institution for Promotion and Protection of Human Rights”

[2] Report of the working group for the Universal Periodic Review – Cuba, Council of Human Rights, 2009

Translated by: Michaela Klicnikova

11 June 2014

Manual of Rights and Duties / Laritza Diversent

Screen Shot 2014-03-08 at 11.03.01 PMMost Cuban citizens do not know the legal system in force on the Island, and the procedures they must follow to exercise a certain legal action, be it a civil, penal, administrative, family matter, etc., principally those that relate to their civil and political rights. Frequently they are victims of the arbitrary and selective application of the law.

With respect to Cubalex — the Center for Legal Information — tries to expand the pro bono representation and legal analysis available in Cuba, as well as the capacity for self-defense by dissidents, human rights activists and citizens who have no apparent political motivations, living inside or outside the national territory.

Cubalex offers its clients detailed information about the Cuban legal system, the legal the legal rules that apply to their case and the procedures to be followed in response to government, regional or international institutions.

The Manual of Rights and Duties / on-line, offers information about the ways in which Cubans can defend their rights as citizens facing an arrest, official summons, and search of their homes.

8 March 2014

Inmate Dies in Havana Jail, Possibly From Cholera / Laritza Diversent

19-carcel-1-300x200HAVANA, Cuba , September 18, 2013 , www.cubanet.org.- For approximately 15 days, several prisoners complained about cholera cases within the Combinado del Este prison in Havana. So far the authorities of the Ministry of Public Health have not reported anything.

Pedro Pablo de Armas Carrero, an inmate who leads a movement called Inner Reality from Prison (RIDP) ,created on April 9, 2013, in memory of all prisoners dead from hunger strikes in Cuban prisons, told this reporter that on Tuesday, September 17, between 7:00 and 8:00 in the morning, the inmate Iyamil Garcia Benitez, 38, from the town of Parraga, in Arroyo Naranjo, died in that prison.

Armas Carracedo adds that, when his cellmates asked the guards to help the sick man, he was already dehydrated and vomiting blood. He also says that Garcia Benitez Garcia suffered from chronic ulcers.

carcel-2-300x221According to medical investigator Yasser Rojas, the cause of death of the prisoner may have been hypovolemic shock. The clinical picture could be complicated both by the bleeding as well as by the dehydration caused by diarrhea, a symptom of cholera.

According to information received from the prison, on 1 September 14 cases of cholera had been declared among the inmates. Ten of the contaminated were under observation in the center’s center, and four had been referred to outside hospitals.

Although casual contact with cholera-infected people is not a risk for becoming ill, in places where there is poor sanitation and overcrowding, as in Cuban prisons, the disease presents as an epidemic. The pandemic, when serious, is characterized by profoundly watery diarrhea that can lead to dehydration.

The inmates at Combinado del Este prison complain that the roofs leak from the sanitary sewer pipes. The leaks cause dampness in the 12 by 36 foot cells, where up to 36 prisoners live crammed together. The cisterns are totally contaminated by all kinds of insects and rodents. Inmates have to store water in jars and buckets. The prison was built in 1966 and has not had any major repairs.

From Cubanet

18 September 2013

Red Flag: The New Penal Law Threatens Human Rights / Laritza Diversent

The reforms of the Penal Code and the Penal Procedure Act adopted by the State Council to “ensure greater effectiveness and efficiency in the prevention and the fight against crime” raises a red flag about the situation of human rights in Cuba.

The amendments will come into force on October 1st. Their main objective is to expand the power of the police forces and lighten the burden of the courts, a solution that results in more than one problem. The main one is: Are the police officers trained to legally evaluate and judge a case?

Currently, police officers can address directly any infringement of the Penal Law, with penalties of up to 1 year’s imprisonment and/or fines no higher than 15 thousand pesos, without being required to report the case to the court. In October, they will be granted authority over offenses of up to 3 years’ imprisonment and/or fines no higher than 50 thousand pesos, with the approval of a prosecutor.

This power enables them to judge and punish with fines, which represent 27% of the penalties established in the Penal Code. With the new amendments, these will now represent 52% of the penalties, and police officers will only need approval from a prosecutor to enforce 26%, a good way to contribute “to the consistent enforcement of the Penal Code policies outlined by the State.”

In the amendments the guarantees of due process were not taken into account. The police officers decide whether or not to take the citizen to court and the amount of the fine. In addition, the assistance of a defense lawyer has not been foreseen for any of these cases. Undoubtedly, a subtle way of violating the right to a public hearing in “court.”

The accused decides whether or not they will be judged by a policeman or a judge. Just think how dependent courts and prosecutors’ offices are on the instructions of the State Council and, therefore, the Ministry of the Interior. Judges and prosecutors are badly paid and overworked. In October, the number of cases that municipal courts will have access to will increase from 52% of all cases to 78%, and those in uniform can lighten this workload in 67% of all cases.

What could happen? Will they be acquitted, will they try to fine them again or will they be sentenced to deprivation of liberty? It’s better not to bet on it. However, the uncertainty will not disappear if the citizens accept to be judged by a police officer.

The fines currently enforced by police officers for infringements with penalties of up to 1 year’s imprisonment and/or fines no higher than 15 thousand pesos, range from 200 to 1,000 pesos, national currency, and can be extended up to 2 thousand pesos whenever the circumstances demand it.

In October, this range will reach the 2 thousand pesos and could be extended up to 3 thousand. For infringements with penalties of up to 3 years’ imprisonment and/or fines of more than 50 thousand, the fines will be from 500 to 5,000 pesos and can be extended up to 7,000.

Can you imagine this in a country where the basic monthly salary is 229 pesos? Taxes on self-employment allow for a 300 to 400 pesos revenue, without resorting to the black market or violating the law. Have they thought about the need citizens have to resort to illegality as mean of survival?

Perhaps it may be better to address the matter without going to court. One does not have to think that we are all innocent until proven otherwise. Once the citizen accepts to be judged by a police officer is he recognizing his own guilt?

Today, if the fine is paid within 3 days and the citizen complies with the terms of civil liability, the case is closed without penal implications. With the new amendments the time period to pay the fines was extended to 10 days. In these cases, property and goods can be confiscated as well.

What would happen if the accused does not have the money within that time? Will their charges increase? If the person fails to pay and to comply with civil liability, the case will be passed on to a court. What crime will they be judged for? For failing to comply with the charges from the initial crime or for the crime itself that the person committed and implicitly accepted? None of these questions are clarified in the Law of the State Council Decree.

Have the recently elected national deputies read the draft of the amendments for the Penal Code? Why doesn’t the National Assembly, the legislative body participate in the legal implementation of the “changes and transformation” in the economic and social arenas of the country? In short, did anyone think about us?

In any event, the lack of political will is evident when it comes to complying with the international human rights covenants for the drafting of national legislation. In contrast, the new legal amendments increase the state of legal uncertainty for Cubans. A good time to raise a red flag.

By Laritza Diversent 

Translated by Chabeli Castillo

Monday, July 1, 2013