Category: Translator: Undef

In recent times the postal parcels from overseas sent to Cubans who publicly express disagreement with the government are being confiscated. The Post Customs, an entity belonging to the General Customs of the Republic has been using the seizures of shipments originating from foreign countries as a filter applied to the dissidents.

My own case can serve as an example. In less than two months they confiscated two parcels sent to me from the United States. I was notified of the most recent of these on August 13th by means of Confiscation Order No. 1209 from the 29th of July and a document of Retention and Notification, both signed by Danny Samanda Rivero, a Customs Control inspector.

If this happens once, it could be a coincidence. The second time it could be seen as an act of cruelty. But if the same thing also occurs to other persons sharing your political views then it is a case of state policy. A subtle way to punish those who dare question the system.

Undoubtedly, the administrative measure has a political background. The list of the affected ones includes Yoani Sánchez, Silvio Benítez, Dania Virgen García, Ubaldo Manuel León, Yusnaimy Jorge, Aini Martín, Vladimir Alejo y Julio Beltrán Iglesias, among other opponents of the regime.

According to inspector Samanda Rivero, the content of the package addressed to me “put the general national interest at risk.” He ordered the confiscation invoking Resolution No. 5-96 of the Head of the General Customs of the Republic. The first confiscation on June 8th was effected by Confiscation Order No. 978. Raimundo Pérez García, a Customs Control inspector, seized the parcel using the same argument.

The Resolution No. 5 of the General Customs, effective since 1996, allows the application within the country of the Convention for the suppression of the circulation of, and traffic in, obscene publications. Furthermore it bans the sending of “any object with content considered to be contrary to the morality, the proper conduct or the general interest of the nation.” Moreover, it stipulates that the confiscated goods are to be turned over to the Interior Ministry.

In both confiscation orders enforced against me the inspectors Pérez García and Samada Rivero failed to explain how those imported items “affect the general interest of the nation.” The two confiscated packages contained something like: an MP3 player, a photo camera, pencils, ballpoint pens, pencil sharpeners, notebooks, wax crayons, balloons, toilet soap, disposable razors, deodorants, plasters, toothbrush and toothpaste. All of these are products sold in state and convertible peso shops on the Island.

At the end of July I lodged an appeal before the Head of the Posts Customs requesting the first confiscation order be overturned. Dated August 17th I was notified of the Appeal Resolution No. 231 of 2010 that dismissed my claim.

The official, Raúl Gómez Badía, the highest authority of the institution deemed the measure imposed by inspector Pérez García appropriate. After having exhausted all available administrative remedies my next step will be to assert my rights before the courts.

Although the “new customs offensive” may have another objective. To destroy the hesitant attempts to reestablish the communications between Cuba and the United States. The confiscated goods were sent to me from the northern country by the Universal Postal Service agency of the Office of International Exchange.

On September 17th 2009, Cuban and United States representatives initiated talks in Havana that envisioned the resumption of direct postal services between both countries. At the end of the meeting that took place under much secrecy the Cuban delegation issued a statement.

It´s worth making it clear that the majority of Cubans don´t think highly of the customs services, above all of those at the airports. A proof of this is the video Abuse at the Cuban Customs by the acclaimed composer and singer Cándido Fabré.

Laritza Diversent

Translated by: undef@rocketmail.com

August 31, 2010

After his speech before the National Assembly, in which Raul Castro warned that “there will be no impunity for the enemies of the homeland,” the repressive and intimidating actions against opponents have intensified.

Troops from the National Revolutionary Police (PNR) and State Security (SE) agents selectively arrested several dissidents near the Malecón on the 5th of August.

The majority of the detainees were trying to enter the United States Interest Section in Havana, the only place on the Island offering Internet access to Cubans. That day was another anniversary of the “Maleconazo” – a popular uprising preceding the exodus of 1994.

Arbitrary detentions, official subpoenas and warnings are the measures most commonly employed by the political police to suppress the dissenters. On the 9th of August military counterintelligence (MCI) and State Security officers summoned for questioning the independent journalist Iván García.

The authorities fail to comply with the requirements for summons set forth in the Criminal Procedure Code. In most of the cases they act on their own, disregarding the law.

The agents claim that García has defamed military institutions in one of his articles published in the Spanish newspaper “El Mundo.” This Penal Code classifies this act as a crime against the public order and stipulates sanctions. However, the officers choose to warn the correspondent officially.

The reporter thinks that the officers who questioned him were applying the words of the President of the Council of State and the Council of Ministers.

The issue of several official warnings (at least 3) constitutes a precedent enough to justify a trial on the grounds of what is called “pre-criminal dangerousness” (peligrosidad predelectiva) because of antisocial conduct. This is one of the most commonly used criminal law concepts applied to the opponents of the regime. The sanctions can be as high as 4 years in prison.

The government made its point clear, that the recent releases of prisoners would not suggest an end to the use of the repressive methods. The First Secretary of the Cuban Communist Party explained that to defend the streets and squares would continue to be a revolutionaries’ duty.

The message is clear for those who hope for an improvement of the human rights situation on the Island. The prisons can be filled with political prisoners again at any moment and on any grounds.

Laritza Diversent

Translated by: undef

August 27, 2010

On the 15th of July the second chamber of Civil and Administrative Law of the Provincial Court of the City of Havana summoned the incumbent Minister of Justice, María Esther Reus González, in the matter of the lawsuit filed by the Cuban Law Association (CLA)for denying their request for certification, a step that is indispensable for the legalisation of this organisation of independent lawyers.

The Cuban Law Association is an independent NGO (Non-Governmental Organisation). It was founded in October 2008 and provides legal advice to citizens on a non-profit basis. On three occasions State Security suspended courses on Cuban laws offered to the general public by the Association, which also seeks to increase the public´s awareness of the legal system.

The Registry of Associations at the Justice Ministry didn’t certify if there was another NGO in the country with the same name and purpose as the CLA in the time between April 2009 and March 2010. The independent lawyers brought the matter to the court after the Minister in charge of the Registry ignored an administrative appeal against its decision, made on the grounds of violation of procedure.

The lawsuit brought on June 24 was filed by the Court on the 29th. A week later the judge, Alfaro Guillén, and the lay judges Núñesz Valdés and Figueredo Ramos responded to the lawyers with a delay due to the Chamber´s excessive work load, demanding that they changed the wording of their motion´s terms.

The Court considered it inadmissible that the attorney Wilfredo Vallín Almeida, president of the Cuban Law Association, is acting on behalf of a legally unrecognised entity. The Cuban legal system considers any group not inscribed in the Registry of Associations of the Minister of Justice to be an “illicit association.”

As a matter of fact, the Associations Act (Law 54 from the 27th of December 1985) and its bylaws do not impose any formal requirements for the establishment of an association: the interested parties assemble in order to pursue a common goal and request their recognition as a legal entity by the State.

The writing of the judges demanded that the attorney Vallín bring the lawsuit as a private person and that the terms of the petition be changed to reflect the fact that the Justice Ministry has not responded to the request for certification. The judges declared the formulation “refusal to grant authorisation for the establishment an an association” used in the wording of the petition to be incoherent.

It is the the first time that a dissident organisation sues a representative of the government. This is an event without a precedence in the last fifty years of Cuban jurisprudence.

Laritza Diversent

Note: See also “The lawsuit is getting ahead”: La demanda prosperó.

Photo: The Cuban Minister of Justice during her participation in a session on human rights in Geneva, Switzerland.

Translated by: undef

August 14, 2010

The comment by a reader of mine, Sergio, attracted my attention. He asked: what is the reason that keeps preventing the opposition in Cuba from growing strong?

According to his writing, Sergio left the island a short while ago and still has fresh memories of the disagreements and fears here. He thinks that the people are still being paralysed despite recognising that the political and the economic systems are failing, because they dread something worse. Just like the popular sayings: “To jump from the frying pan into the fire” or “Better the Devil you know than the one you don’t.”

The commentator asserts that the historical leadership is still in power, firstly because the opposition cannot offer a model for the future development of Cuba, and secondly, because the malicious propaganda machinery, the indoctrination and the disinformation have demonised the concept of capitalism to the point that it is perceived as the apocalypse, exemplified by the social model of North America: “TOTAL liberty, the State is not responsible for exercising control… and things work if they are private.”

He suggests to the dissidents that if they propose “the American way” they will find it hard to convince the rest of the Cubans, “who don’t want to shift constantly from the extreme Stalinist left to the far ‘Republican’ and neoliberal right… Cubans want the best of capitalism and the best of socialism.”

To illustrate his thoughts he presents two proposals and economic models for the opposition groups:

His first proposal: “We are THIS group, here is my programme: Once democracy is achieved we want a liberal Cuba where the free enterprise and market forces set the guidelines of the society, the government lets the market operate on by its own rules, everyone has a health insurance if he or she wants medical care, and everything or almost everything is private property, because the State is not competent.”

Later he asks: “What do you do if you don’t have enough to pay for your father’s cancer treatment?” “We know that health is the one most precious things and therefore it is what concerns people most,” he argues. On this point I agree with Sergio, in a future full of changes not all of us are going to be prosperous entrepreneurs.

I agree once again when he claims that “the opposition has to focus, and each group, independent of the common goal (the end of the dictatorship and establishment of democracy) has to present its own detailed plan.

Unfortunately, the majority of the opposition groups within the Island do not seem to grasp the idea of a political programme, occasionally they don’t understand what this is. It is also hard to know for sure what is the ideology they profess. Sometimes I have the impression that they associate the term liberal with liberation, hence it is difficult to know what is the model or alternative for the government that they offer to the Cuban public.

Second proposal: “We are THAT OTHER group and this is my programme: When Cuba is to be free we want full liberty and support for the free enterprise, but subject to economic, financial and fiscal regulations that prevent those unbalances in the system that end up with the taxpayers footing the bill. There will be a serious fiscal system in order to create a social security covering the basic needs: labour rights, free and universal medical care, education facilities. The State will cease determining the degree entrepreneurial activity…, but it will never let the course of the country’s economic development to be set by the market alone. We’ll have a sober economic planning based on industrialisation and R&D (Research and Development) as a guarantee for sound and sustained economic growth… and independent of cyclical activities like the real estate business or tourism that are a feast today but famine tomorrow.

Sergio insists on the need to explain that “there is a form of capitalism that respects the right of the people to have their business, from a cafeteria to a designer company and even a multinational metallurgical enterprise… to earn millions of euros and to be millionaires…, and all of this being Cubans in Cuba, achieved with their ingenuity and work, at the same time enjoying guaranteed free and universal medical care and education for their whole family… and everyone pays into social security… and moreover, a right to attend colleges and universities and private health care for those who wish it.”

The commentator does not believe that wrongs in Cuba are due to socialism, but rather to FIDELISM. “Our problem is Fidel and his dictatorship, the dictators are neither communists nor capitalists,” he argues. He doesn’t like the American model either and thinks that it is time for the Cubans to “look closely at well developed models that are socially fair if not egalitarian.”

He advises the dissidents to “PULL THEIR HEADS OUT OF MAIMI and take a look at Germany and the rest of Europe (excluding Spain, Portugal and Italy), it does not matter whether the government is left or right, it still makes some difference, but to a great extent they have reconciled very well liberty and economic development with a high standard of welfare and social justice.”

“If there is a group out there that has a programme with these ideas… I’ll sign up together with my family, otherwise I support them regarding the common goal to get rid of the Castros… but I will give them my neither my vote nor my confidence… and I think that the majority of the Cubans in Cuba will feel this way,” he finishes.

I also think that from now on it is necessary to explain WHAT DOES THE OPPOSITION OFFER TO CUBANS. The economic model ought to be chosen by all in free elections and will be put in place by the political group that manages to see BEYOND THE HORIZON.

Laritza Diversent

Translated by: undef
undef@rocketmail.com

August 15, 2010

The announcement of the liberation of 52 political prisoners was described by some as “great news”, while others received it with caution and even suspicion. However, the legal grounds for the release, an event considered to be the most significant of its type in a long time, remained unclear.

It would be incorrect to speak of liberation until the government has formally endorsed the release. Without this, the prisoners’ departure from the country would be the result of a coercion. In other words, we would be looking at an act of exile.

Let us take the procedural status of the released prisoners as a starting point in order to understand the issue at hand. Neither a furlough nor a parole would dismiss their criminal responsibility. In this sense, it would be helpful to envisage the risks of lifting their sentence, with their being out of prison but still within the country. The smallest risk is that they might be returned back to jail under some pretext.

From this point of view, it is not hard to understand why the relatives of the political prisoners preferred to leave the country. According to the statement of the Archbishop of Havana, the earlier suggestions made by the prisoners’ relatives to cardinal Jaime Ortega were taken into account during the release process. What remains doubtful, though, is whether the proposal truly originated from the relatives.

Let us think like the government for a moment without entering into details about the ranking of the priorities of its motives: A hostile international environment from an economic perspective because of the financial crisis and political isolation due to the international pressure demanding the liberation of the prisoners of conscience and respect for human rights within the island.

The act itself serves it well considering the internal situation, which grows more troubled every day because of the precarious economic development. Women dressed in white marching silently through the streets with gladioli in their hands, enduring insults and humiliations, demanding the release of their husbands and sons is not a conduct conforming with the model of social behaviour desired by the government.

Let us add that the prisoners’ release and their definitive, that is permanent, departure from the country together with their relatives would relieve the government from the presence of the group of women, called The Ladies in White. These women rejected the opportunity to convert their group into a civil movement when they distanced themselves from the “Damas de Apoyo” (The Ladies of Support). After the release of the prisoners the reason for the existence of their group will be gone.

Furthermore, the government would not be pleased if people approved of a group of citizens or families that had confronted it, managed to hold out against it and could walk free to tell the story. To put pressure on them in order to make them leave the country is the most convenient measure.

Laritza Diversent

Translated by: undef@rocketmail.com

In the second half of April 2003, 75 dissidents were arrested and sentenced after summary trials. These cases were processed under Law No. 88, “For the Protection of the National Independence and of the Economy of Cuba.” The dissidents received sentences varying between 6 and 28 years of imprisonment. Internationally, these events were called “The Black Spring of Cuba.”

According to article 2 of this law (also known as “The Gag Law”), it has a special character and takes precedence over other criminal laws adopted prior to it. This gives rise to a suspicion: How do the authorities decide whether to apply this law or the Penal Code (PC) when both pieces of legislation deal with the same types of crimes, have equal rank and serve the same objectives?

The decision of which norm to apply is left to the discretion of the public prosecutors and the judges and depends on the political will to imprison a person who could not be found guilty if judged under the PC. Meaning that his or her conduct does not fall under any of the definitions of crimes established in the PC.

From both a technical and legal point of view, the elements of the crimes described in “The Gag Law” are formulated vaguely and are designed to sanction any behaviour that, according to the authorities, supports or facilitates the disturbance of the internal peace, seeks to destabilise the country or to destroy the “Socialist State” and the national independence.

In contrast to it, the PC describes types of behaviour that violate or pose a threat to the public life. From this point of view it is the damage to the society, whether potential or actually inflicted, that determines what type of conduct ought to be sanctioned criminally. This means that all citizens are involved in assessing the severity of a given circumstance, precisely because they are the ones affected by it. The judicial system should thus protect the citizens instead of repressing them.

It is inadmissible to make use of the criminal law in order to subjugate citizens and to impose a certain ideology. In other words, the rejection of a given philosophy (communist, liberal, etc.) is not an adequate argument justifying a sentence. There has to be damage to the society.

The punishment of the 75 opponents of the regime, sentenced in accordance to Law 88, showed how its existence serves to legally justify repression under the cover of an alleged public interest. It’s selective application intensified its effectiveness as a warning to others. Indirectly, the regime influenced the rest of the dissidents within the country. It demonstrated its power as well as the lengths it is willing to go to in order to preserve it.

Laritza Diversent

Translated by: undef@rocketmail.com

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Lartiza’s Blog: Laritza’s Laws and Legal Advisor

The establishment of an association in Cuba requires authorization from the Ministry of Justice. It lies in its discretion to allow or disallow a group of citizens to exercise its constitutional right of freedom of association. Its decision depends on an investigation of the legality and appropriateness.

The right of association is widely recognized as a basic individual civil right of utmost importance. Principally, because it provides protection against arbitrary state interference when people choose to associate with others. Furthermore it is an indispensable condition for the existence and functioning of a democratic society.

To protect these rights, the state is not only obligated not to interfere with their exercise, but, under certain circumstances, should take measures to encourage the effective exercise of this freedom. These rights could be restricted, but only under certain strict conditions, not at the discretion of government authorities.

The Cuban state not only grants discretionary power to the Ministry of Justice to authorize and register associations in accordance with the law. It also imposes relations of subordination and functional dependency upon authorized associations, thus unnecessarily restricting the freedom of action of Non Governmental Organizations (NGOs) within the Island.

A sine qua non for the constitution of an association is the adoption of rules stipulating its relation and functional dependence on a state organization. It is also subject to double taxation. The Ministry of Justice also monitors its activities and can impose administrative sanctions.

The gravest of all violations of this right, however, is committed when the authorities do not respond to dissidents who request legal recognition to operate as an NGO. To this is added the threat, commonly used by the organs of State Security against the opposition, of accusing them of the crime of illicit association.

The penal legislation provides a sanction of one to three months imprisonment for the person who belongs as an associate or affiliate to an association not inscribed in the register. The sanction is tripled for the promoters or directors of the same.

Faced with these violations there was not much that could have been done. However, a recent event, unprecedented in 51 years of the “Revolution,” showed that it is still possible to take legal action against the silence of the socialist administration.

An organization of independent lawyers called the Cuban Law Association (AJC), on June 24, filed a lawsuit before the People’s Provincial Court of the City of Havana against the Minister of Justice, María Esther Reus, for preventing them from exercising their legal right of association.

For the first time a dissenting organization brings a lawsuit before a court against a representative of the government.

Translated by: undef

To consent means to express, explicitly or implicitly, agreement with something. A decision that is legally binding, because one assumes rights and obligations. This way, the consent becomes a requirement of the capacity to act.

The capacity to consent is subject to restrictions. Principally, when the consent is given by a non-emancipated minor, a deaf-mute person unable to read or write, or a person who is mentally ill. The consent granted in these cases is not considered to be the result of free will and deliberation.

The Committee for the Defence of the Revolution (CDR) is an organisation which joins together the majority of social groups in the country. Article 7 of its statutes stipulates that “the request to join the organisation is an individual and voluntary act (…).” One of the requirements for entry is to be 14 years of age or older.

In Cuba the age of majority is 18 years and from this moment on a person attains his or her full capacity to act. As an exception to this rule, also considered emancipated are married females older than 14 years and married males of age 16 and above.

Adolescent persons, at 14 years of age, are neither fully responsible for their actions nor are they free to fulfill the requirements for joining the CDR. Much less are they capable of assuming the obligations implied by membership. Do they possess the economic resources to pay for their share in the self-financing model of the organisation?

The case of persons legally declared incompetent is very similar. I am speaking of deaf-mute or mentally ill persons who are registered members of the CDR. Did they consent to agree with the Revolution and to be prepared to defend it? Did they accept the statutes of the organisation? Are they able to behave in accordance with the ethic and the principles of the Revolution?

In Cuba, the mass social organisations register the citizens as members without asking for their consent. This fact is a violation of the individual rights of the people.

Laritza Diversent

Translated by: undef@rocketmail.com