Is Killing a Cow Worse than Murder? / Miguel Iturria Medina #Cuba

OLYMPUS DIGITAL CAMERA

Lic. Miguel Iturria Medina

For years I’ve heard the popular saying that initially provoked skepticism and today, after learning something about the law, makes me uncomfortable. Surely almost all of us have heard it, and many have said it. It’s said that, under the Law, someone who kills a cow is more severely published than someone who takes the life of another human being: “It’s worse to kill a cow than…”

The phrase deserves a brief analysis from the perspective of the Penal Code to try to answer its macabre sense. I will take as a reference the crime of Illegal Slaughter of Major Livestock and the Sale of Their Meat, under Article 240.1 of this body of law: Continue reading

Uncertain Benefit / Cuban Law Association, Miguel Iturria Medina #Cuba

By Lic. Miguel Medina Iturria

Embezzlement appears as an offense in many jurisdictions. In our case it is governed by Article 336 of the Penal Code and embodies when an individual consents to take for themselves or with the consent of another, goods they have access to relating to the management, availability or custody because of their job.

This offense falls within the so-called frauds and despite being included under the heading of crimes against property, because of the magnitude of its impact it is considered as an offense that lacerates the national economy and has most negative influence on it.

In Article 336, different criminal penalties are applied according to the amount defrauded. Three to eight years in prison, if the economic impact is between $1,000 and $10,000; from eight to twenty when more than $10,000; and six months to two years or a fine, when it is below $1,000. The related amounts are provided in the Instruction 165 of the Governing Council of the People’s Supreme Court. This responds more severely the bigger the fraud to state assets. Personally I share this idea.

In the 6th paragraph of this provision provides a benefit to the accused which I quote:

“If the offender returns, before the conclusion of the trial, the appropriate goods or through his management this refund is achieved, the court may reduce by up to two thirds the minimum sanction as noted in each case.”

The purpose of this course is clear, through this expectation the person who commits this type of crime is motivated to reimburse the defrauded in hopes of improving his legal situation, but this paragraph has interesting practical drawbacks in the use of the term “may” which makes it an optional standard; in the case of return of the assets the Court is not obliged to grant the benefit described. In our judicial practice the latter variant is happening frequently.

In my view it constitutes an act of disloyalty to urge someone to give you what they have stolen with the expectation of improving their status in the process and then not to grant them the expected benefit. This legal standard should be mandatory or binding on the forums of justice, since the judgments not only have an impact on those involved, but on society and future offenders.

For example, if those involved in such matters know that returning the money will not bring a definite advantage, certainly they will not choose this option, but if complying with it provides certainty, every defendant would cooperate and would, without doubt, return the result of their corruption to its place of origin.

October 5 2012

Cessation of Cohabitation / Cuban Law Association, Miguel Iturria Medina

By Miguel Iturria Medina

Property Law governs the use, enjoyment, possession and availability of good which one owns. The ultimate power is related, in short, to the possibility of the title holder doing with his property what he deems to be best. In the case of housing one of the issues is the disposition it, that is the owner’s decision about who lives in his property.

This is addressed in Article 64 of our General Housing Act, Act No. 65; however there are exceptions provision regulated in Article 65 of the law itself, which limits the cessation of cohabitation for ancestors and descendants of the owner, mothers with children born during the marriage, formalized or not with the owner, or mothers with children living in the housing for three or more years and having no other residence; elderly who have lived for more than three years in the building and who do not have a place to reside, cases of manifest injustice or inhumane acts.

Outside of these exceptions, the owner may terminate the cohabitation of any person without requiring an administrative or judicial declaration, but if the cohabitant refuses to leave the property, then the owner can call the Municipal Department of Housing to issue a resolution which determines whether unwanted cohabitant must leave, a process that can be achieved in the second instance in the Provincial Court, by application of nonconformity of the administrative decision, and which ends, finally, in appeal to the Supreme Court.

The real problem lies in the Order to Cease Cohabitation because once it is signed, either by resolution of the Municipal Housing (DMV) or Judgment of the Provincial or Supreme Court, whether the cohabitant refuses to leave the property and which is antisocial behavior unrelated to a work center, the competent authority comes to force removal by the police. But if the cohabitant does not meet these characteristics, the DMV only issues a provision ordering them to leave the house in 30 days and if they do not they will be fined 30% to 50% of their salary which will accrue to the State. So far.

Why doesn’t the competent authority take action in all cases where a final decision calls for the cessation of cohabitation? What coercive force is there in reducing the minimum wage by 30% to 50% when the cost of renting a home is around 20 Cuban Convertible Pesos (around 500 pesos in “national money”), and this figure is more than 50% of what the average worker earns? How can the owner get someone out of his house who doesn’t meet this requirement of an “anti-social labor link”?

There is no other option than to modify the Law so that it truly guarantees this ability.

September 30 2012

Decalaration of a Co-defendent / Cuban Law Association, Miguel Iturria Medina

By Lic. Miguel Iturria Medina

The presumption of innocence is a legal assumption in most modern legal systems where a person accused of a crime is considered innocent until they are convicted.

The individual enjoys the so-called State of Innocence that should be destroyed by the one who bears the burden of proof, the prosecutor, in a process that respects due process. The offender must be convicted in a trial. This principle has a second accession which is that it is mandatory to prove the facts independent of the statements of the accused, their spouse and close relatives.

With this principle, the defendant’s confession is no longer the Regina Probatio (Queen of the proofs) and the inquisitorial trial system, where in order to achieve this they resorted to coercive methods including torture, as a method of proof subject to later confirmation.

Currently, at least in theory, is not sufficient for the incrimination from one accused person to convict another implicated in the same case.

In the content of our Law of Criminal Procedure these assumptions are guaranteed. Article 1 establishes the principle alluded to as we discussed, and in Article 161 gives the accused the choice to give evidence or not, and in Article 163 is imposed on the officials concerned the obligation to conduct any investigation to verify the events leading the accused.

These assumptions are in effect not only with regards to self-incriminating statements from the accused, but also statements of an accused involving other people. The so-called co-defendants.

The declaration of a co-defendant, by its nature, does not have the rigor and quality of other personal proofs and requires further confirmation in other methods of proof; because the accused, unlike the witness is not obliged by law to tell the truth and is not responsible for any legal if failure to do so; in addition, in his condition as a part of the process he will always have particular interest in the outcome.

It is seen as a means of defense or incomplete evidence. The Act imposes the existence of other elements to form a conviction.

In short, no one can be sentences based only on their own testimony or that of another person implicated as an accused in the same penal process.

So much for the theory and the strict content of the law. Unfortunately, judicial practice does not always coincide with those arguments. Convictions contrary to the law occur relatively frequently.

Its foundation is based mainly on the alleged absence of motive for one defendant to want to unfairly prejudice another. For example: if their relations were good or there is no earlier situation of conflict between them, then it is estimated that for the most part the incriminator is being truthful and it is taken as evidence. Is that perhaps what is regulated in the law?

May 25 2012