Category: E. Javier Hernandez H.

Professionals / E. Javier Hernandez H. #Cuba

Lic. Edilio Javier Hernández H.

There is a group of professionals in our society called to play an important role in the restoration of harmony between the people and the government, in the context of a Rule of Law which is seriously damaged, cracked and corrupt. We differentiate ourselves from the professionals of the health service, because apathy, idling, and ignoring of the Hippocratic Oath directly and lethally affect the general public.

Many professionals have decided to get rid of the connection with the impositions, demagogy, corruption and double standards, not agreeing to any more exploitation or manipulation or messing about indefinitely in bureaucracy.

We have recognised a new open group (years ago I knew about two of them who browsed the health website infomed) of surgeons and doctors from the Calixto Garcia Hospital, who courageously say what the majority of the Cuban population think but do not dare to express, about the administrative chaos experienced by our society in all the administrative structures and organisations of the state

All praise to those doctors who step forward for other professionals and intellectuals who stick their heads in the sand like ostriches when they see any danger. There are numerous examples of official and social associations, congresses, events and workshops, which act as umbrellas or windbreaks, shielding themselves against the rain and gusts of disappointment, frustration and unachievable hopes, which are our reality.

It seems also that analysis of the Lineamientos (Guidelines) has failed to serve as a problem bank or a generator of ideas to take forward as action to break through the inertia. Is it so hard, considering that the leaders don’t account to us for what they are managing, or say when things they are doing will be completed, or not, or tell us how much longer we will have to wait or continue to trust in them.

In tribute to those brave doctors, I would like to say to the other professionals in our country:

I still like my work; how much could we do, how much could we change if only some tribunal lawyers, some prosecution lawyers, legislative lawyers, defence lawyers, or consultants were to stop submitting and giving in to law which is ideological and burdensome, above all imposed by all the well-known organisations, the Party, the Military and the Ministries.

These are extracts from the Eighth Congress of the United Nations on Prevention of Crime and Treatment of Criminals, which took place from 27th August to 7th September 1990 in Havana, Cuba:

… considering that the appropriate protection of human rights and fundamental liberties which may be invoked by every person, whether they be economic, social and cultural or civil and political, requires that every person have effective access to legal services provided by an independent legal profession.

… the Basic Principles of Legal Practice which appear below, which have been formulated in order to assist member states in their task of promoting and guaranteeing the proper performance of lawyers, should be taken into account and respected by governments when framing their legislation and practice in their countries, and should be brought to the attention of lawyers, and others such as judges, prosecutors, members and officials of the executive and legislative powers, and the public in general …

 Access to expert assistance and legal services

1. Every person is entitled to seek the assistance of a lawyer of their own choosing, in order that they may protect and demonstrate their rights and and defend them in all stages of the legal process.

2. Governments will ensure that they establish efficient procedures and adequate mechanisms to enable effective and equal access to expert assistance on the part of all persons within their territory and who are subject to their jurisdiction, without any kind of distinction, such as discrimination based upon race, color, ethnic origin, sex, language, religion, their opinions whether political or of other type, national or social origin, economic situation or position, birth, or other condition.

The sentences of tribunals will gain greater conviction and their debates greater majesty.

The lawyers will be more highly regarded; the guarantees are to be published and affirmed.

For people to be free, their rights have to be clear. For people to govern themselves,  their rights have to be common …

From Nuestra América, José Martí.

We still have time to set an example to other professions.

Translated by GH

December 21 2012

Double Immunity / Cuban Law Association, E. Javier Hernandez #Cuba

By Lic. E. Javier Hernández

Parallel to our inefficient system of managing the economy, also cracked, flawed and inefficient is the functioning of many of the the organs of the state administration at all levels, validating the principle of “poor economic foundation, poor superstructure above”; the latter linked to the negative performance of management officials and leaders, as well as the little punishment or sanctions when they work badly.

For years there has been a vicious circle with regards to who holds the primary jobs for managing the economy and other sectors of society, based on loyalty, not talent, that has eroded and deteriorated all its actions. In most cases, when they don’t perform their duties they are transferred to another body, perpetuating the mediocrity, inaction and inability to solve problems.

But there is something worse in a number of officials, which are damaging and creating problems, whether in the areas of economics, individual liberties, citizen rights; and it is the impunity for their actions, because there is no legal and moral will in our country for to make mid-level and high officials pay for bad decisions, bad solutions, worst omissions.

The worst, in a State that proclaims rights and equality, are those cases involving people (read their liberties, their property, their opportunities), dodging and avoiding the weight of law and justice, well-defined, at least with regards to written and regulated procedures throughout the whole legal system, including the courts, which apparently give them a pass when it involves senior cadres and leaders of the State, or their family members.

In Cuba, since 199, we have had Decree-Laws 196 and 197 (which provide the legal standard regarding how, when, and why bosses are approved and disapproved), amended in a few by Decree-Act No. 251 of August 1, 2007, primarily by adding sections with regards to the administrative disciplinary violations that have to do with the supposed ambiguities in the Decree when it excludes the liability of directors and officers for negligence, passivity, prevention, in short the so-called “collateral” responsibility for the acts of subordinates.

There is also Article 26 of the Constitution of the Republic of Cuba, “… Any person who suffers damages unjustly caused by state officials or from the performance of the duties of their office, has the right to demand and obtain the corresponding indemnification in the manner established by law… ”

In most cases these people have double responsibility, and double immunity, which leads almost all of them into double passivity, double immobility, double servility, to ensure a corresponding double privilege, although Article 82 of the Constitution states… “The condition of deputy does not entail personal privileges or economic benefits.”

But what happens in practice? As the famous “collateral measures” always work for the company directors or leaders and functionaries of Establishments or Organizing Base Units, as well as the municipal leaders.

In recent cases of corruption in the country, the most famous, from the General Acevedo, foreign firms, Ministers, Deputy Ministers, continuing on through the breaches of the Communist Congresses, we might ask… when will the “top brass” be faulted, those who are the bosses of the bosses for removing or sanctioning them.

But unfortunately I also remember the in the same Cuban Constitution of 1976 ….. Article 83:

“No deputy to the National Assembly of People’s Power may be arrested or criminally prosecuted without the authorization of the Assembly or the Council of State if it is not in session, except in case of flagrante delicto … “

We might hope for true justice in Cuba that all are equal before the law, that our People’s Courts behave impartially and just as citizens hope they would, so that at least in that instance workers, subordinates, the helpless find protection for their rights, their hopes and desires.

October 8 2012

Other Citizens Without Rights / Cuban Law Association, E. Javier Hernandez H.

By E. Javier Hernández H.

In a previous post we talked about Cuban Immobility (stagnation), an issue that has many sides, or as we say in “good Cuban”: “There is a lot of fabric to be cut.”

The issue of civil rights in different sectors of our society has been analyzed by many compatriots. But I want to refer specifically to sports, where despite little public information, people know the avatars and the suffering of the Cuban athletes, the few rights they have, and the great immobility that distinguishes its managers in holding back our sports system.

For our athletes the questions are: When do they stop paying for their career in sports? Who reviews their contracts and enforces its terms? If Revolutionary Sport is a unified thing, why are some hired and compete with professional, and earn awards, and others cannot?

The immobility and mutilation of rights border on the absurd; in team sports to reach the rank of cadet or youth participants, the athletes have no championships or regular leagues within the county, holding back their development by being unable to compete in international clubs, a normal practice accepted around the world.Rarely do we remember that athletes are the most selfless, pressured, monitored and manipulated, especially with regards to contacts with their counterparts in other countries.

A few may earn hard currency for their activities and without their consent their bank accounts are emptied for “collective goals”. Nobody reacts to defend the athlete. Neither those who run the programs nor the “eternal seconds” who spend the year traveling, talking politics, but never sports.

To accept the changes and respect the rights mentioned, sports talent as a profession would become an unimaginable monetary income generator for the country.

Finally again we have the relationship of citizen-constitution-civil rights. While this “three-category” democracy is not real, tangible, sustainable, Cubans, and within them our athletes, continue to suffer discrimination.

We remember that these people are unique in nature, are born with their talent and in some cases come around once in many years, while being humble, modest, giving us great satisfaction. In gratitude, we must help them.

September 22 2012

Client-User Defenselessness / Cuban Law Association, Lic. E. Javier Hernandez H.

Lic. E. Javier Hernández H.

For years there has been a reality in our country that isn’t exposed nor analyzed from all angles as the suffering of citizens deserves to be: it pertains to the defenseless state of Cuban client-user-buyer-consumer-constituents in the face of administrative and governmental requests, particularly when the parameters of quality, efficient operation, or the most basic rights are not fulfilled or respected.

We are observing in a majority of cases that come to our Association, in addition to our becoming a last resort or “lifesaving plank in the vast sea”; we can see inefficiency, laziness and insensitivity. The fundamental causes of our compatriots’ troubles are also the errors or violations committed toward them by entities and officials with impunity, sheltered by the lack of culture and discipline that would allow administrative and judicial proceedings to be correctly appealed and directed for the sake of restoring violated rights.

The ultimate tendency of the Organs of State Administration, as well as their subordinates, is the refusal to respond, be it a quality parameter claim, a complaint, a violation of rights or a breach of contract with the main service providers, be it the Electric Company, ETECSA (mobile phone and landlines), Aguas de la Habana (the water company), Immigration, Customs, among others. Examples abound as water service days are skipped, telephones break or are suspended without compensation, decisions delay or prohibit exit from and entry to the country, and seizures occur at officials’ discretion or interpretation without legal basis; in the end, the common Cuban’s defenseless situations are endless.

The country’s top leaders are carrying out an offensive against corruption—an evil that is difficult to avoid, especially in a country of fundamental weaknesses, as much present in the Basic Food Basket as in other individual liberties—a very valid offensive, since with egalitarianism, paternalism and decontrol, it is nearly impossible to move forward and plan with what little we have; however, as always, we observe how far removed this is from the citizens’ own “offensive.”

Why is it so difficult for the Comptroller to review the Municipal Housing Agencies, where records of exchanges or expropriations get lost?

Why don’t the supervisors of Justice reach the Municipal and Provincial Courts, where they almost always don’t know or don’t want to properly prosecute citizens’ administrative, labor and civil cases against those monopolistic businesses that frequently operate with impunity and contract abuse?

When will the those charged with applying the law of our country’s People’s Courts of Justice recognize their latent responsibility to use their wisdom to support a true equilibrium, between arrogance, impunity, mediocrity, and insensitivity of those “officials” and the defenseless citizens?

When should these same professionals turn to a concept as a guide in their precincts… “to challenge dominant, powerful forces within and beyond the social and national scope…” or also… “defend the values we believe in, at any cost…”

Or also, why not, to feel that our profession has been a marker and an honor in the history of democratic and just society, in the brilliance of public servants like Lincoln, Jefferson, Montesquieu, Agramonte, Céspedes, and Martí.

There is still time to participate judiciously in a new society, where we will lack neither compensation, retribution, certification, nor justice in the shadow of whatever power.

Translated by: Courtney Finkel

August 25 2012

Double Immunity / Cuban Law Association, E. Javier Hernández H.

By Atty. E. Javier Hernández H.

Validating the principle of “bad economic base, bad superstructure,” parallel to the inefficient economic management, the functioning of the State organs of administration is also flawed at all levels, flawed and ineffective.

For years a vicious circle has been created in the occupation of key positions to manage the economy and other sectors of society, for individuals with the gifts of “reliability,” not talent, so that when they finished their duties they transferred to another agency, taking with them mediocrity, immobility and inability.

But there is something worse in the functionaries, that damages and create prejudices; it is the impunity of their fault, as there is no legal and moral will to make those mid-level and high officials pay for their bad decisions, bad solutions, worst omissions. It is most humiliating in a State that proclaims rights and equality to see people dodging and avoiding the weight of law and justice, which are well defined and regulated in all procedures for the law, including the courts, which apparently treat senior cadres and leaders of the State or their families differently.

In Cuba there are Decrees-Laws 196 and 197 since 1999 (they state the Cuban legal standard for how, when and why, and not the bosses), as amended by a few articles in Decree-Law No. 251 of August 1, 2007, essentially adding administrative discipline violations having to do with the alleged ambiguity of the decree, when it included the responsibility of leaders and officials for negligence, inaction, prevention; that is, the so-called “collateral” responsibility for the acts of their subordinates.

There is also Article 26 of the Constitution of the Republic of Cuba, “… Any person who suffers damages or prejudices unjustly caused by functionaries or agents of the State with the motive to exercise the proper duties of his charges, has the right to claim and obtain the corresponding indemnification as prescribed by law …”

In most cases, these characters have double responsibility, and double immunity, which translates for almost all into double passivity, double immobility, double servitude, to ensure a corresponding double privilege, although Article 82 of the Constitution states …. The status of deputy does not entail personal privileges or economic benefits.

Now, what happens in practice? Because the famous “collateral measures” always work at the level of directors of businesses, or leaders and functionaries of the Establishments or Organizational Units of the Base, what’s more they reach municipal directors.

In the recent cases of corruption in the country, both political and economic, the most renowned, from the General Acevedo, foreign firms, Ministers, Deputy Ministers, passing through the recognized failures of the Communist Congresses, we might ask … when will blame the “collaterals from above,” who are the chiefs of those chiefs to remove or punish them.

But unfortunately I also remember the in Cuban Constitution itself an innovation of 1976… Article 83. No deputy to the National Assembly of People’s Power may be arrested or criminally prosecuted without the authorization of the Assembly or the Council of State if it is not in session, except in cases of flagrant malfeasance … “

One would hope for justice in Cuba that all are truly equal before the law; that are People’s Courts cannot be manipulated, and are impartial and fair as the citizens expect, for workers, subordinates, those undefended find protection for their rights, their longings, and their hopes.

July 18 2012

Compliance with Court Sentences / Cuban Law Association, E. Javier Hernández H.

Mr. E. Javier Hernández H.

As a consequence of the sad social deterioration and the weak rule of law in our country, for years now there has been an increase in the dangerous behavior of the citizens and other state entities that refuse to fulfill the sentences dictated by the courts, also due to the limited powers that these courts have to enforce their decisions.

The Cuban Constitution states in its article 123:

“The sentences and other final court decisions … are of unquestionable compliance by the state agencies, the economic and social entities, and the citizens.”

The complementary law covering the objectives, functioning and procedure of the Cuban courts is Law 82 of the People’s Courts. Its Article 7 summarizes clearly their mandate and responsibility:

“Article 7. – Legality in the judicial process is guaranteed by:

“The obligation of state agencies, state organizations and public entities to comply with and enforce court sentences and all final tribunal resolutions, dictated within the limits of their power.

“Citizens, political, social and mass organizations, associations, and private national and foreign entities must comply with and enforce court sentences and all final tribunal resolutions…

“Tribunals must effectively carry out the dictated court sentences and must watch over their compliance and the work of the entities in charge of enforcing these sentences.”

There are countless examples, that have come to our Association, of issues that, in sad and dangerous ways, are affecting our safety and public order, and even worse, the trust and faith in the highest-level judicial institutions of our country, such as:

Sentences authorizing the occupation or vacating of a citizen’s residence.

Resolutions to compensate a worker who was unlawfully deprived of his or her job.

Firm sentences against entities for non-compliance with their contracts.

Resolutions against the Housing Department for illegal actions towards homeowners, etc.

The level of conscious compliance with norms and rules that we would have wanted to achieve in the XXI century is a utopia, and for many reasons, we Cubans have been moving from respectful to undisciplined, along with being trusting, subsidized, manipulated, passive and destructive people.

Incredibly, since we are children of the extremes, there is also an official tendency to be part of the problem, not a part of the solution. In addition to the fact that our judicial system has no agents with the official authority, in the name of justice, to enforce court decisions, sentences or resolutions.

The greatest danger lies in the near future. We all want the judicial restructuring of social infrastructure, property, constitutional rights, the restoration of safety and public order, of pardons, the restitution of freedoms and that the courts, as guarantors of legality, are respected and make themselves respected; otherwise, we would lose a large part of the core values that, as a Republic, we have defended so much, and that we Cubans want to peacefully reconquer.

Translated by Chabeli

June 1 2012