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

Laritza Diversent Reports from Geneva / Laritza Diversent

Photo: In the background on the right, Laritza Diversent and Yaremis Flores

Introduction by Tania Quintero

On December 10, 2010, without resources, publicity, or fanfare, attorney and freelance journalist Laritza Diversent founded a modest office in her home to provide free, independent advice to Cubans and foreigners on national and international legal issues and human rights. She established the Cubalex Legal Information Center. Over time she was joined by other lawyers, such as Yaremis Flores and her husband Veizant Boloy. These three young people are of Afro-Cuban origin and humble backgrounds. Cubalex also investigates and reports to international and regional organizations regarding individual complaints of human-rights violations on the island. It is located at the corner of 169 Lindero and Angeles, El Calvario, Havana, Cuba 13900. Telephone: (0053) 5-241 5948 (Laritza’s cell). Email: centrocubalex@gmail.com Any help is welcome.

On Cubanet you can read the two reports presented by Cubalex in Geneva, at the 55th meeting of the Committee for the Elimination of Discrimination against Women (CEDAW), which on July 8 and 9 was dedicated to analyzing the situation of Cuban women. The following is the report of Laritza Diversent.

Report from Laritza Diversent

Cubalex presented a “shadow” (alternative) report to CEDAW. Yaremis Flores and I, representing the Cubalex office, participated in the meeting of the experts with NGOs from the countries that were studied at the 55th session, including Cuba.

On Saturday, July 6, we traveled to Switzerland, coincidentally sharing the flight with some members of the official Cuban delegation that participated in the examination. Upon arrival at the airport in Geneva, there were other members of the delegation. One of them, after talking on the phone and looking at us repeatedly while we were waiting for our luggage, came over and took our photo without our permission.

He said it was “so we would look beautiful in the press” and sarcastically welcomed us to Geneva. We told him we were prepared to be photographed by State Security. Then he said he was from the Ministry of Foreign Affairs, that he had studied at the Law School, had graduated in 2004, and knew us both. A pity that we didn’t remember him. If he publishes our photo, we will post his, when giving messages to the members of the Cuban delegation.

On Monday the 8th we turned up early at the United Nations headquarters for the process of accreditation; we had previously requested this and had received confirmation that we were accredited. Yet strangely, our registration did not appear in the database. We had to wait two hours for the confirmation of our accreditation.

After verifying the location of the private meeting with the Committee on the Elimination of Discrimination Against Women (CEDAW), we made sure to contact the International Women’s Rights Action Watch (IWRAW), an NGO that organizes the private meetings between the Committee and NGOs from the countries that are being examined, to confirm our presence.

Representatives of this organization were surprised that an NGO based in the island presented a report critical of the situation of Cuban women, because the rest of the national organizations, including the National Union of Jurists, and the Cuban Association for Animal Production, supported the state report.

Earlier that morning, NGOs recognized by the Cuban government had presented themselves there to confirm their participation. Strangely, they asked if there would be other participants. Until then, IWRAW was not aware of our presence in Geneva.

We returned to the room where the meeting would take place and found the supposed lawyer for the Ministry of Foreign Affairs. We then learned that our presence had caused problems in the Permanent Mission of Cuba in Geneva. They thought we were going to pull out posters and yell anti-government slogans.

As a precaution, we stayed in the meeting place and waited until it started, to head off any manipulation or government action. After the presentations, the NGOs recognized by the regime, instead of speaking privately with the Committee about the problems of Cuban women, devoted their efforts to discrediting us.

They claimed that Cubalex consisted of only five members, who responded to the interests of the United States, a country which for more than 50 years had imposed a “blockade,” the main cause of violence and discrimination against women in Cuba. They also said that our report lacked objectivity, had little technical rigor, and manipulated the information.

Among other insults, they categorized us as amateurs. They questioned the financing of our trip, claiming that they had to seek help from UN agencies. The Committee had to ask them to stop their attacks and concentrate on the problems of Cuban women.

But they were unable to answer direct questions from the Committee about prostitution, civil unions, and whether a woman who was a victim of violence could be represented by a lawyer. They sowed confusion and wasted time on political speeches, preventing the Committee from clearing up its doubts on these subjects.

For our part, we raised these issues, which we consider the most alarming about the situation of women in Cuba. We warned about recent amendments to the Criminal Code and how it might affect women as victims.

The strategy of these government NGOs, both in the private meeting and at the meeting of the Committee with the NGOs from the countries to be examined, was to consume the time allotted to the country, to prevent us from speaking. They repeated everything that was in their reports, supporting the government. A position that was also requested by the Committee.

At the meeting with NGOs in the countries to be considered at the 55th session (Cuba, Dominican Republic, Afghanistan, Serbia, Bosnia and Herzegovina, Cape Verde, Democratic Republic of Congo, Northern Ireland, and the United Kingdom), one of the experts directed a question to Cubalex, and members of the official Cuban NGOs consumed all the time, and we could not answer. That position was requested by the Committee Chair, who asked us to present additional information in writing, which we did the following day.

Our perception is that the quasi-state NGOs and the Permanent Mission of Cuba in Geneva were nervous and undiplomatic in the face of our unexpected presence. The person who said he was from the Foreign Ministry accosted us at our arrival and tried to intimidate us, hostilely taking our photos without our permission. The NGO officials showed a lack of education and respect.

As independent lawyers based in Havana, we are pleased with our first experience at the United Nations. We were able to take the opportunity to criticize the Cuban government in a setting where it had never been confronted by an NGO that it does not recognize.

Despite the pressures and provocations, we maintained our equanimity, always respecting the place (Palace of the Nations, the main UN headquarters in Geneva), and the honorable members of the Committee on the Elimination of Discrimination Against Women (CEDAW).

Before, it was very comfortable for the so-called Cuban NGOs to beguile with many words, without saying anything and without fear of contradiction. The Members of the Committee members felt uncomfortable about the hostility and lack of diplomacy that the Cuban delegation showed toward us.

Translated by: Tomás A.

11 July 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

Universal / Yoani Sanchez

sif2013Someone sitting at the table behind spoke in French, while in chairs at the side two Brazilians exchanged ideas. Two steps further on some activists from Belarus were talking with some Spaniards who had also come to the Stockholm Internet Forum. An event that began on May 21 in the Swedish capital bringing together people interested in digital tools, social networks and cyberspace. A real Tower of Babel where we communicate in the lengua franca of technology. The global and virtual village is now contained in an old factory on the edge of the sea. And in the midst of this back and forth of analysis and anecdotes, are six Cubans, also willing to contribute their labor as cyber activists.

This is without a doubt the most enjoyable stage of my long journey and not because other places haven’t been filled with beautiful impressions and lots of hugs, but because here I have met up with several colleagues from the Island. Some of the people who, in our country have grabbed hold of new technologies to narrate and to try to change our reality, today are gathered here. The young attorney Laritza Diversent, the director of Estado de SATS, Antonio Rodiles, the keen blogger Miriam Celaya, the information engineer Eliecer Avila, and joining us for one day as well, the independent reporter Roberto Guerra. Here in Stockholm it has felt rather like Cuba, though certainly not because of the weather.

The Internet Forum has allowed us to feel like citizens of the world, to share experiences with those who live in different situations but, in essence, surprisingly similar ones. It’s enough to chat with another attendee for a little while, or to listen to a talk, to realize that in every word spoken here is the eternal human quest for knowledge, information… freedom. Expressed on this occasion through circuits, screens and kilobytes. This meeting has left us with the sensation that we are universal and that technologies have made us into people capable of transcending our geography and our time.

like_webb23 May 2013

Court Suspends Eviction / Laritza Diversent

Digital StillCamera

Laritza Diversent

On January 21 the Havana Court suspended Yamilí Barges Hurtado’s eviction, planned for March 22, from her house facing the Cohiba Hotel, as well as that of the heirs of the other partner in the house-swap in the east of Havana.

According to Barges Hurtado, a sheriff from the court of justice announced the decision to representatives of the state-run organizations in her neighborhood, at approximately 5 pm. The official said the court of justice suspended the eviction because of questions of security. “Nobody told me,” Bargas Hurtado said.

Eleazar Yosvany Toledo Rivero, 34, responsible for removing Yamilé from her property, was also informed, by a phone call from neighborhood leaders, of the decision. Supposedly the plaintiff told the court on January 18 of the impossibility of carrying out the eviction for lack of transportation. Continue reading

The House Across from the Hotel Cohiba / Laritza Diversent

yamile-posible-desalojada-1

Yamilé Barges Hurtado

HAVANA, Cuba, December, http://www.cubanet.org. On November 15, the People’s Provincial Court (TPP) in Havana planned to evict Yamilé Barges Hurtado from her home, located across from the Hotel Cohiba, after annulling a home-exchange that made nine years ago.

That day they also planned to evict the heirs of Teresa Luisa Rivero Domínguez, the other party in the home-exchange in the Bahia neighborhood, a suburb to the east of Havana, Yamilé’s birthplace. According to anonymous sources, the eviction was not due to lack of transportation.

To date, the TPP of Havana has not changed its decision, an action taken at the direction of the Municipal Housing Office (DMV) in Plaza. In the Cuban legal system there is no eviction action. Evictions, euphemistically called “extractions” are made by the DMV, after declaring the occupants of a building illegal.

Yamile Barges Hurtado received a court notice on November 27 to appear on December 6. The Rivero Dominguez heirs were also cited.

In judicial practice, after a sentence has been handed down it is not usual to summon the parties again. But the judges warned that in January they would be cited again to review the case and carry out the eviction, although Yamilé is not an illegal occupant.

The Plaza DMV must act when the TPP recognizes the property to one of the heirs of the dispute. The action of the court is limited to communicating its decision to the Housing officials.

Yamilé’s mental state deteriorates with each threat of “extraction.” She broke the doors, windows and floor that she managed to build with so much effort. “I will not leave my house with the amenities that I created for my family to anyone,” she said.

She argues that she can’t live any more with the uncertainty. “I think my problem is already solved,” she added. Her daughter stopped going to the university so as not to leave her alone for a single minute. Her depressed state and the effects of her medication are obvious.

February 4 2013

What Are the Authorities Waiting For? / Laritza Diversent #Cuba

Caridad Reyes Roca and her daughter (Photo by author)

Caridad Reyes Roca and her daughter (Photo by author)

Caridad Reyes Roca traded homes with Ofelia de la Cruz de Armas in 2008. Three days later, the neighbor below complained about leaks from the bathroom. The wall and ceiling coverings were coming off. Caridad spent four years trying to undo the trade and return to her former property.

“My attorney was bought off by the other party,” she said. Caridad hired the attorney Yolanda Martiato Sanchez in January 2009. In June, without her consent, her counsel filed a notice of withdrawal that the Court of Havana accepted. Proceedings were closed. “I knew of the deception when I complained to the Council of State and they responded to me in court,” says Caridad. Continue reading

Academic Exchange on Law and Human Rights in Cuba / Estado de Sats

With the independent Cuban attorneys Yaremis Flores and Laritza Diversent (Cubalex), René Gómez Manzano (Agramontista Current), Antonio G. Rodiles (Mathematical Physicist) and students from the New York University Law School.


This video is 44 minutes long. There is a live interpreter translating the session into English in real time.

22 January 2013

Laritza Diversent: The Pending Emigration Law Should Make No Distinctions Because of Citizens’ Political Views #Cuba

Photo: Tracey Eaton

Readers’ interview from Diaro de Cuba

The attorney and independent blogger, Laritza Diversent, responds to questions by readers of Diaro de Cuba regarding emigration reform.

Ricardo E. Trelles: In your professional life you have to deal with the country’s existing legal system in which laws are formulated and established in an illegitimate way, without citizen participation, and in which the appointment of judges as well as their legal decisions are made arbitrarily. Don’t you think that your knowledge could be useful in helping to define and develop a political movement that could help provide us with a government, legislative body and legal system that is legitimate and respectable? Do you have hopes that the current legal system will continue to become a little more flexible and tolerant, one where there are more opportunities for respectful criticism that does not threaten its hegemony?

Hello, Ricardo. Yes, that is precisely what I am doing — putting my knowledge at the disposal of Cuban civil society, or whoever might have need of it. And it is not only me. There are also other young attorneys with whom I intend to work to identify the problems of the legal system, which puts us in an indefensible position by making us look for ways to oppose it, so that, when democracy does arrive, these problems will not be repeated. Along with attorneys such as Yaremis Flores, Veizant Boloy and Barbara Estrabao, we are taking the time to identify those problems and to help dissidents as well as citizens who do not seem to have political motivations.

In regards to your second question, I do not think the system is becoming more flexible and tolerant, much less allowing for citizen participation from its critics. The situation in Cuba today demands change, and even then this is not enough. My hope is that Cubans will stop engaging in self-censorship and will realize that they are the masters of their destinies and their lives, that free education and health care are not “victories of the revolution” but an obligation of the state, that they are people with rights and those rights are there to be exercised since they are the foundation of liberty. In my opinion, self-censorship is a stronger force in today’s Cuba than repression. In other words it is clear that physical repression is used against those who exercise their rights, but most people do not exercise their rights out of fear of repression.

Ernesto Gutiérrez Tamargo: It is always good to have the perspective of a colleague in Cuba. What do you consider to be the positive and negative aspects of Legal Decree 302/2012? Considering that it regulates some basic human rights, don’t you think it would have been more fitting and consistent, legally speaking, if it had been approved as a normal law by the National Assembly of People Power (ANPP) rather than being issued as a legal decree by the Council of State?

In regards to your first question about what I consider to be positive and negative in Legal Decree 302/2022, in my opinion the new regulations are positive in that they allow Cubans living abroad to regain residency status in Cuba. Before this law the only possibility of obtaining permission to repatriate (a permanent return to Cuba) was if it was for “humanitarian reasons.” Permission was granted to those were were terminally or gravely ill, women over sixty, men over sixty-five and children under sixteen, and only if they could demonstrate that they had family members in Cuba capable of supporting them financially.

On the negative side it does not solve the problem of dual citizenship, which the constitution does not allow. The government does not prohibit its nationals from changing citizenship, but neither does it allow them to renounce their Cuban one. In practice it ignores the fact that a Cuban living overseas might be a citizen of the other country.

With respect to the suitability of approving a law in the ANPP instead of doing so in a legal decree by the Council of State, hopes for emigration reform certainly grew each time a session of the National Assembly was announced. However, it was the offices presided over by the Head of State and Head of Government, the Council of State and Council of Ministers who unexpectedly put the reforms into effect by decree.

Good judicial practice dictates that normally a law should be modified or overturned by the body that created it. This is one of the principal and logical outcomes of the principal of regulatory hierarchy. In other words it is not appropriate for a lower body to modify a legal statute established by a higher one. But in Cuba we are the exception to the rule.

Here it is quite normal for the Council of State to modify a law created by parliament. We saw this, for example, in the new regulations that allowed for the sale of private homes in which the Council of State modified the General Housing Law, a statute created by the National Assembly. The same thing happened with the new modifications, although it was not the Cuban parliament that issued Law 1312 on September 20,1978. Instead it was approved by the President of the Republic, a position that does not exist within the Cuban legal structure. It is the Council of State that modifies or overturns statutes approved by parliament based on the premise that it is a branch of the National Assembly, which it represents when the Assembly is not in session.

With regards to the hasty approval in a plenary session of the National Assembly in December, the strategic and intelligent decision was conveniently put into effect before Cubans could exercise their right to vote in elections. One of the promises made by Raul Castro when he took office in 2008 was to eliminate “excessive and unnecessary” restrictions. It was also to his advantage to modify his emigration policy before the Universal Periodic Review (UPR) by the UN Council on Human Rights, scheduled to take place between April 22 and May 3, 2013.

One of the recommendations made by the council in the previous UPR in 2009, which has still not been accepted, was to eliminate restrictions on freedom of movement of its citizens. On this occasion the government used a similar strategy when, before submitting to the review, it signed the conventions on human rights on February 28, 2008, which it still has not ratified, even though at the time the signing led to recognition and congratulations from the international community.

Saavedra: I have two questions for you. First, I have been working outside Cuba for a year and a half. To come here, I had to apply for a release (a letter of non-objection) in February of 2011 at the university where I used to work as a professor. I retain Cuban residency and have travelled twice during this time. I am thinking of going in December of this year and returning on January 10. Do I run the risk that they will retain my passport based on fact that I worked at the university more than a year ago and am a university graduate? Or could they ask me for a new letter of release that the university rector could delay giving me for up to five years?

In response to your first question, they are required to update your passport and you would not be running a risk of having to apply for a new letter of release. You have already been released. The guidelines dealing with professionals who require authorization to travel overseas for personal reasons pertain to those who are currently employed on the island, whose names and permanent identity information is in an automated system organized and controlled by the Ministry of Labor and Social Security according to the new regulations (articles 5 and 6 of the decree). However, I recall that there are various articles that could apply here and that the final decision is subject to the discretion of the Minister of the Interior.

Saavedra: My second question pertains to my wife, who is in Cuba. She is also a university graduate and has a job as a specialist for ETECSA (Telecommunications Company of Cuba). I would like to take her with me early next year, in March or April. Obviously, they could delay giving her authorization to travel for up to five years. If we begin the process of applying for the non-objection letter before January 14 (when the new law goes into effect), can they keep her there for five years based on the new law or some other existing law, or would they release her from her job reasonably quickly? Our intention is to work outside of Cuba without losing our residency status there, or to travel at least every two years. Thank you for your answer, and I apologize for the length of my questions.

Your wife does run the risk that they could keep her passport for five years if she is still working. The automated system contains the names and permanent personal information of professionals who require authorization to travel overseas for personal reasons and must be ready in two months counting from October 16 of last year, the date of publication of the new regulations.

Bryan: Is there some legal mechanism for Cuban youths who have dual nationality to be excused from active military service? 

Unfortunately, there is no legal ruling that exempts a young Cuban from fulfilling the requirement of military service because of dual nationality or citizenship. In fact this is one of the quirks that prevents Cubans from obtaining a passport and, therefore, from leaving Cuba. The government does not recognize that any of its citizens has any citizenship other than the Cuban one, even if he or she holds citizenship from one or more other countries. In other words, you can have several nationalities, legally speaking however, within Cuba you are a Cuban citizen and there is no formula or procedure by which you can renounce this citizenship, even if it infringes on constitutional law. Legally, even the National Assembly has not determined who has the authority to decree loss of citizenship. It is one of the factors used to control the flow of emigration.

Lila: I have been in Spain for ten months. I have a residency permit for five years. I am not thinking of going back to Cuba because I would lose my job. Would I have to get an extension or is there no need under the new law? How much would I have to pay for my stay here?

Yes, you have to get an extension for each month you stay overseas after the time period for which you received permission, if it is before January 14, 2013. After that date a fee is charged for each month after the first 24 months you are a permanent resident outside the country, according to rulings from the Minister of Foreign Affairs. The name of the consular contribution will change from “Extension for Overseas Stay” to “Extension of Permanent Overseas Residency.” They will be priced the same. In your case, since Spain is a member of the euro zone, that would be 40 euros if you pay it through the Cuban consulate. It you pay electronically, it is 25 euros more. You could even ask them to give you multiple extensions in the same application for the number of months authorized.

Orosmer Rodríguez: In the case of Yoani Sánchez what would happen if next February she were to decide to visit New York or Miami? Could she be detained even if there are no pending legal charges against her?

Under new regulations Yoani Sánchez should get a new passport or have it renewed, if she already has one. As long as she is not violating any laws in Cuba’s current Penal Code, no one can detain her. And if they did, we would be dealing with an arbitrary detention.

It is another matter if they do not allow her to leave the country. That would constitute a violation of freedom of movement, which is a recognized right under the Universal Declaration of Human Rights as well as under the International Convention for Civil and Political Rights which the state, by signing, has made clear its intention to respect.

However, under the new emigration regulations the government can prevent Yoani Sánchez from leaving the country by denying her the possibility of obtaining a valid passport or by officially declaring that she may not leave the country for reasons of national or military security, or if the Minister of the Interior so determines.

International human rights institutions are concerned about the practice by some states of hindering their own nationals from leaving their country. One of the tactics that they mention is the refusal to issue a passport under the pretext that the applicant would harm the country’s reputation.

Tenores Jomenor: I would like to know what you consider to be the main points of “the pending emigration law,” assuming it is inadequate.

The pending emigration law should not be called an emigration law since the regulation of the right to citizenship would be outside its scope. This is closely tied to freedom of movement, specifically to the right of each individual to enter his or her own country, which recognizes the special connection that one has to the other.

The pending emigration law should regulate and protect the right to move freely and to choose one’s residency within the nation’s boundaries. Nevertheless, Havana has special regulations that violate freedom of movement and freedom to freely choose one’s residency.

The restrictions that the anticipated emigration law contain should be specific and provide for legal recourse to limit the ability of Minister of the Interior to limit entry or exit from the country.

The restrictions contained in the pending emigration law should be compatible with all other universally recognized rights and fundamental principles of equality and non-discrimination. It should make no distinctions because of a citizen’s political views. Nor should it invalidate any right or compromise its essence. In other words it should not be the general rule and the exercise of the right the exception.

Mario Martínez: I live in Cuba, but have worked for several years in the Cayman Islands. Until now I have had to return to the island every eight or nine months. I would like to ask you if in the future, before going to Cuba, I will still have to pay $40 per month extension with a bank draft to the Cuban embassy in Jamaica as well as the $25 for not doing it in person.

Your question is very similar to Lila’s. After January 14, 2013, based on the new regulations, specifically those from the Ministry of Foreign Affairs, you should continue to pay the same currently established rates for extending your stay overseas for more than 24 months, which is the time limit for Cubans living overseas who have permanent residence on the island and who travel on personal business.

Phillip: What does the constitution say about the right of citizens to request a passport? In other countries it is a right that no one is denied except in certain cases in which it can be confiscated from the passport holder to prevent him from leaving the country when it being shown that he has been involved in a serious crime. Otherwise, by law it cannot be denied to anyone.

If the Cuban constitution ignores freedom of movement — widely recognized as one of the principal judicial instruments of human rights — then it pays even less attention to the right to obtain a passport. The new emigration legislation certainly eliminates the entry and exit visa, but it establishes a new prohibition, which in my opinion is even worse. It prevents someone from obtaining a necessary travel document not only for having committed a crime, but for reasons political or otherwise. The right to leave the country also includes the right to obtain the necessary travel documents. The refusal of the government to issue a passport (or to renew an existing one) to a Cuban living or not living on the island is to deny his legitimate right to enter or leave the country.

Miguel Cervantes: Doesn’t the emigration reform law contain something about persons deported from the United States that Cuba refuses to receive?

After January 14, 2013 Cuban emigrants will be able to reclaim their residency status within the nation’s boundaries — an option that did not exist prior to the new regulations. Although the new emigration statute does not expressly mention people deported from the United States, their status as emigrants allows them them file an application.

One of the advantages of the new emigration statute is that one does not have to physically reside in the country to regain residency status on the island. People will be allowed to exercise rights denied them until now, such as their rights to vote, work, to education and to acquire property.

The request can be filed through overseas consulates or through the Processing Office of the Ministry of the Interior to the Department of Immigration, which subsequently approves or denies residency requests within three months.

The regulation also requires an applicant to disclose the means used to emigrate and does not provide for an appeals process in the event a request is denied. This means that recognition of one’s right is subject to the discretion of the Minister of the Interior. This also means that emigration law itself establishes the conditions under which someone — either a national or a foreigner — can be denied entry into the country.

Ramón: I left for Argentina in 1998 after obtaining a letter of invitation and have not been back since. I was denied entry into the country because I am a doctor. On numerous occasions over the last 15 years I filed appeals to the Cuban authorities, explaining that I was authorized to leave, that I have my release card, and that I did not leave during an official mission but rather on a visit to Argentina. However, I have never received a reply. With this new law can I file an appeal to return since I am an emigrant who left for personal reasons? My father is still in Cuba. My mother died a month ago and I was not able to even attend her funeral. I also have a sister and niece there. They told me at the Cuban embassy in Argentina that everything remains the same for people like me.

Unfortunately, the government’s policy with respect to doctors, artists and athletes is very inflexible and is not written into law. Although changes have been made to emigration laws, certain practices remain in place, such as the discretionary power of the Minister of the Interior to decide which Cubans may enter or leave the country. You could read through any number of legal statutes, and nowhere will you find mention of any process by which a citizen can file an appeal in the event he or she is denied the right to enter or leave the country.

The Civil, Administrative and Labor Procedural Law provides an avenue for appealing administrative decisions by the Central State Administrative Boards (OACE) and its domestic branches which violate legally established rights.

However, denials by officials from the Ministry of the Interior (MININT), a OACE, with respect to entry and exit applications cannot be brought before a court since they emanate from the exercise of discretionary legal authority. The law itself prevents judicial bodies from analyzing the decisions arising from this authority. This is precisely one of the concerns of international human rights organizations.

Supposedly, the laws which authorize the imposition of restrictions must not confer discretionary powers without constraints on officials who exercise them. There is only one conclusion that we can draw from this: The discretionary freedom that the government grants to its Minister of the Interior places citizens in a defenseless position when faced with administrative actions which are detrimental to their legitimate rights.
Cubans are being denied “an effective recourse before competent national courts charged with protecting them against actions which violate their fundamental rights as recognized by the constitution or by law” by the preventing them from appealing decisions of MININT officials before courts of justice. Every Cuban “has the right, under conditions of full equality, to be publicly and justly heard by an independent and impartial court to determine their rights…”

Ramón, you should not allow them to continue punishing you for having made the decision to exercise your rights. If the Cuban government does not respond to you, contact the UN High Commission’s special rapporteur on the independence of judges and attorneys — a recommendation that I strongly make to all Cubans who have been denied the right to enter or leave their own country by the Ministry of the Interior.

Many thanks to the readers of Diario de Cuba for their questions.

November 27 2012