What Should Not Happen / Cuban Law Association, Argelio M. Guerra

Lic. Argelio M. Guerra

The Law of Criminal Procedure is clear when it indicates in the penultimate paragraph of Art. 251 that: The Police, the Instructor, the Prosecutor or the Tribunal, as the case may be, will decide in relation to the application for modification of the provisional measure* in regard to a time period not to exceed five working days counting from the moment in which the application is made.

It is not clear why the preceding period is breached so often, sometimes doubled or trebled, without complying with the requirement by the legislature to respond to the application for variation of the provision status* of the accused in the brief space of a week. The most serious instance case of such violation occurs when the variation in question is in relation to an accused who is has been remanded in custody, given the very nature of this provisional measure.

An even more unfortunate circumstance is when, in the face of an application for change in a measure, time passes without receiving the due response, ending up with the prosecutor declaring the matter finalised whenever it suits him, in complete disregard of the law.

Unhappily, we see a lot of behavior by the authorities who seem to be acting in a sort of discretionary manner and not in accord with the requirements of the law. This sad reality is even more sensitive when such conduct is in relation to the system of justice, infringing the most basic rights of those subject to legal proceedings.

They are just one example of what should not happen in our battered social system.

*Translator’s note: The provisional status (see next paragraph) under discussion here refers to requests for changes in the custody status of the accused, that is, for example, requests to be released pending trial.

Translated by GH

4 August 2013

Particularity of Human Rights / Cuban Law Association, Argelio M. Guerra

Society – International – Rights – Justice. ORDER Disorder

Lic. Argelio M. Guerra

The fight for freedom has been, to a large extent, the fight to restrain the power of the State, mainly through the creation of recognized spaces of individual freedom. The idea that certain rights derive from the very nature of man was developed by different positions on natural law, both was based on the idea that such rights were granted to man by God, as well as having developed starting from concepts of human nature itself.

Several expressions were used interchangeably to refer to what are commonly designated as human rights: fundamental human rights, rights, freedoms, individual rights, etc. The recognition and legal protection of such rights is intended to offer a necessary path by which human development should be treated at all levels.

These rights have a set of characteristics that distinguish them, namely:

- Inborn or Inherent: All human beings are born with rights, so that the state can not grant them, and one must recognize and protect themas a norm.

- Needed: Being derived from human nature itself, they should be considered necessary, so the distinction is imposed by the legal system.

- Inalienable: Belonging to humans by their very nature they can not be divided, transferred, alienated or waived.

- Imprescriptible: They cannot be extinguished or lose value, either because the person does not exercise them voluntarily or is prevented from doing so.

- Enforceable erga omnes: They can be enforced against any person, whether natural or juridical.

- Indivisible and Interdependent: There cannot be a hierarchy with one right above another, but as an entire set they should bein full effect and achievable.

- Universal: They must apply to all people, regardless of race, skin color, national origin, sex, religion, social status, domicile, residence, etc.

20 April 2013

Legal Relationships in Cuba / Argelio M. Guerra #Cuba

25-cartel con bandera

By Argelio M. Guerra

Is it possible to file a legal claim against someone to whom you have given your car to carry out some bodywork, paying him something in advance, who has not carried out the work in question, and where there is no contract documentation? How can you enforce the contractual obligation?

Is it the case that a piece of paper, containing the personal details and reciprocal obligations to which those who agree to provide a service in return for payment commit themselves, constitutes, when the occasion requires, an element of proof for the purposes of a Tribunal when making an application for completion of a contractual obligation?

There are thousands of questions, like the ones above, which are raised by Cubans when, as happens, legal relationships, which should be created in accordance with provisions of the law and good faith, lead to a sorry outcome with the bitter experience, for one or both persons, of being jailed for what ought to be and should proceed as a satisfactory legal relationship.

And this ominous outcome is, not infrequently, the result of various elements which are to be found in legal relationships, conspiring against their normal development; ignorance of rights and how they are to be applied within the social framework; little or no dissemination of information by the mechanisms and institutions which are there to guarantee the exercise of those citizens’ rights, little publicity about the requirements and best options for those wishing to enter into a legal transaction with adequate guarantees, a legal vacuum in relation to the regime governing defined options for the self-employed. These and other limitations are part of the legal reality of present-day Cuba, at the same time as they are of potential assistance to those trying to make a living by way of cheating and extorting from others.

Although the decentralisation of the State monopoly on employment has been accepted and welcomed, what is also needed is an effective strategy to ensure the legal protection of the citizen.

The growing scale of the non-public economy, taken with the ever-more-necessary reduction of prohibitions and restrictions which muzzle the life of Cuban people, takes us inevitably in the direction of an increasing quantity of legal relationships, and the urgent need to dispel the air of mystery, as far as many Cubans are concerned, which has surrounded them for years.

Translated by GH

January 10 2013

The U.N. Covenants on Human Rights are Binding on States / Cuban Law Association, Argelio M. Guerra

By Lic. Argelio M. Guerra

The development in 1966 of the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, also known as the New York Pacts, has a close relationship with the gestation of the Universal Declaration of Human Rights of 1948. While the latter it not binding on States, the adoption of the Covenants came to bridge this shortcoming of the Declaration and, from the perspective of international law, establish legally binding obligations for States that become a part — through signing them — of such instruments.

And those conventions on Human Rights have a special feature given by the very nature of their object of protection, and that is that between the Parties there is a very different connection than what might be the result from a treaty in which the reciprocity of the compliance its obligations is what sets it apart.

Human rights treaties do not establish reciprocal obligations for the signatory states, but rather oblige them to achieve goals beyond their own material interests, and if they fail to comply with these obligations the offending State is called to respond to international organizations and the community of states.

September 5 2012

National Law and International Law: Connection and Dependence / Cuban Law Association’ Argelio M. Guerra

By Lic. Argelio M. Guerra

In the history of International Law the accords of Westphalia in 1648 set a pattern, establishing the guiding principle, followed since then by the international community, that states are sovereign and within their territories wield supreme power .

While this is fine and the national laws of states enshrine this principle, they are not isolated from observing certain mandatory principles that are dictated by extra-national legal order, i.. law.

To explain the scope and content of the relationship between national law and international law several theories have been established in different gradations (the monistic, dualistic, radical monistic, moderate), which means that for some domestic law and international law up are integrated into a single legal order being two branches of the same legal system, while for others international law and domestic law are two separate systems with different territorial areas of application.

Whichever position is adopted, the primacy of International Law is not affected by the type of constitutional system established by the State, both with regard to the application of the rules of international law within the State, and in terms of resolving conflicts between domestic law and international law, since such primacy arises from the fact that the State is bound by International Law.

A conflict arises between norms of International Law and domestic law, aired before the jurisdiction of an international tribunal, shall be resolved on the basis of the supremacy of International Law. Now, when a conflict arises between laws under domestic law it is not settled in the same way as if there is a violation of international law, bringing the State’s responsibility and the same consequences as any other illegal act. So in both cases the primacy of international law is affirmed.

October 22 2012

The Individual Facing International Law / Cuban Law Association, Argelio M.Guerra

Atty. Argelio M. Guerra

With regards to the most basic concept on the subject of a legal relationship, defined as those who participate in the relationship and have the ability to claim rights and assume obligations, we can assume that if this legal relationship is of an international character, then the subjects are participating in these international relations have rights and duties, and that they exercise them within the framework and on the basis of international law.

Both classic international law as well as the most contemporary international public law assume that sovereign states are the principle subjects of international law, and this is the case because these subjects are the only ones endowed with sovereignty and in whose will to be bound by international order rests the foundation of the sources of international law. It is also true that the current recognition and widespread practice of establishing the individual as an immediate and direct subject of international law in those situations that affect his life, his work, his freedom.

This tendency has become larger since the second half of the 20th century in which the horrors and crimes of the Second World War established the ability of the individual to be a subject of international law.

The League of nations tried to set a minimum paradigm on matters of Human Rights to be guaranteed by states, and the United Nations elevates those to a new dimension for perpetrators of genocide to answer for such outrages in international order.

The International Criminal Court was established for this reason and it refers in its statutes to the obligations of the individual person, who is endowed with the ability to hold accountable a state that fails to comply with its obligations under International Law.

September 25 2012

The Universal Declaration of Human Rights: Dream and Reality / Cuban Law Association, Argelio M. Guerra

 

By Lic. Argelio M. Guerra

The year was 1945 and with its progressed, the end of a bloody global War, to the satisfaction of the international community. The effects of the global conflagration left the eyes of humanity perplexed and revealed the urgent need for a mechanism to control and guarantee peaceful coexistence and international security. Thus, gathered in the city of San Francisco in June 1945, representatives of the allied powers and other states agreed to the charter of a new international organization: The United Nations Charter.

One of the first tasks tackled by the new organization was precisely the wording of a declaration that would explicitly reference the human rights expressed in the Charter, so that only three years after the adoption of the Charter of United Nations, the Universal Declaration of Human Rights was born, adopted by the General Assembly on December 10, 1948.

In its thirty articles, the Declaration addresses the basic human rights and fundamental freedoms of all people, everywhere, without discrimination. The Universal Declaration was proclaimed the “dream” of a common standard of realization for all peoples and all nations, but the fact is that the discrepancies of States in the process of drafting the Declaration and the reluctance of them to be legally committed, provoked a turning point that led to the Universal Declaration being born and adopted in the form of a mere resolution of the General Assembly of the United Nations devoid of a legally binding character on its member States, postponed for a future development of a human rights treaty, legally binding on those States that came to ratify it.

Nevertheless, this reality is not an impairment to the authority and force of the Universal Declaration of Human Rights as general guidance on the content of the rights and fundamental freedoms that are frequently referenced in national constitutions, judicial decisions and also in international instruments, in addition to which, over time, the Universal Declaration of Human Rights has become one of the basic parameters under which the international community can deny legitimacy to certain states, frequent violators of these rights.

August 12 2012