CUBALEX, 10 December 2019 — Tapping phone lines, using electronic devices to follow you around, planting cameras, monitoring mail and personal conversations, taking video recordings without permission; these have been the Cuban regime´s habitual practices. Up to now it was all done arbitrarily and illegally, but last month they approved “the use of electronic surveillance” without need for previous judicial authorisation.
Executive Order 389 of the Council of State, signed by the head of state Miguel Diaz-Canel and published in the Extraordinary Official Gazette No. 27 of November 18th, evisages its application in investigations into “money laundering offences, and financing of terrorism, in defence of national interests”. In the same way, the text indicates it may be employed to “prevent the use of national territory for these ends”.
But in the Cuban context it can be assumed that those affected will be members of the opposition and organisations in civil society.
Cubalex explains the implications of Executive Order 389/19 for Cuban citizens.
“Electronic, and other types of surveillance” v. the right to privacy and a private life
The Order 389/19 modifies the Law of Penal Procedure and authorises legal investigation agencies to use electronic and other types of surveillance, with the prosecutor’s approval.
They are defined as “use of media whose application enables listening to and recording voices, localising and following around, placing cameras and shooting images, monitoring any type of communications, accessing computerised systems and other technical resources which enable the identification and evidencing of criminal acts”.
An important element of this type of surveillance, which is not mentioned in the Order is that it enables the authorities to monitor a person´s actions without their knowledge or consent.
Tapping into any kind of communications will give the green light to the use of monitoring software (otherwise known as “spyware”) which may be installed in any kind of computer, tablet, or smartphone to secretly monitor its use without the user knowing.
The “spyware” would allow an abuser to have access to everything in the phone, as well as the abillity to intercept calls and listen in to them. Therefore, the authorities could be able to access our social media or email.
How would DL-389/19 affect our tight to privacy and a private life?
According to the United Nations Office Manual on Drugs and Special Investigation Methods, these should be authorised by a competent legal authority, and carried out in the most discrete and confidential manner.
Does the public prosecutor have this jurisdictional authority? Internationally, public prosecutors are not considered to be officials excercising judicial functions. The correct operation of the judicial function requires that those exercising it be independent, objective, and impartial in relation to the matters they deal with.
The impartiality required of the District Attorney’s office derives from the legailty of the tribunals and is independent of either the positions taken by the parties concerned or of the authority charged with instructing or undertaking judgement.
The fact that the Attorney’s office prosecutes the action as the representative of the state and is a part of the penal process makes clear that it is an inappropriate instituition to be given the ability to authorise particular investigation methods.
These methods would be employed by the Attorney prior to the oral hearing, in the absence of any supervision or judicial control. The criminal investigations are presented to the judicial entity on the conclusion of the investigative process. This stage may legally be delayed for up to 60 days, a term which may be drawn out by the Attorney without limit as to time.
The total absence of judicial supervision increases the amount of discretion available to the agents of the state during the preparatory stage of the case and permits arbitrariness in the use of those methods, especially in relation to the individual’s privacy and private life, at a time when the strictest caution and discretion should be being exercised.
Nor do we have effective legal appeals. The Law of Legal Proceedings authorises the presentation of complaints to the Investigating Judge in relation to his decisions, or in relation to those of the Prosecutor, which may cause irreperable damage. The appeal is handled by the Attorney, or his superior in the event of the Attorney having authored the decision in question. In the case of the special investigation methods, the Attorney is both judge and jury. Additionally, his decision may not be subject to judicial review.
Therefore, how can we protect ourselves against abusive and arbitrary invasions of our privacy? The absence of judicial supervision and adequate legal appeal renders illusory the right recognised by Art. 92 of the Constitution: “The State guarantees, in conformity with the law, that the individual may enjoy access to judicial entities with a view to obtaining effective judicial protection of his rights and legitimate interests…”
DL-389/19 does not confer exceptional status on special methods, and also permits them to be employed before the obtaining of the Attorney´s approval, and to be included in the record of the preparatory stage, after having obtained the evidentiary documentation on the alleged crime.
Another aspect open to question is the legitimacy and validity of this executive order, passed by 3.47% of the national deputies “elected” by the “people”. Its adoption violates basic principles of the structure and operation of the domestic legal code. Without doubt, the Council of State is exceeding its remit. It modified laws passed by the National Assembly, a “supposedly” superior body.
DL-389/19: Strengthens the domestic legal code, or increases the discretion of the agents of the government?
“To strengthen the internal penal code, in relation to that which is enacted in international treaties in force in the country”, indicates the Council of State in Executive Order 389 (DL-389/19) to justify its adoption.
Once it ratifies a treaty, the state is obliged to adopt legislative and other measures, to guarantee its application in domestic law. I certainly recognise, although not without some concern, that the state attempts to juggle its own legislation with its international obligations.
The problem arises on the adoption of a regulation which is incompatible with other obligations derived from other treaties, undertakings and mandatory rules which admit of no conflicting agreements, such as the Universal Declaration of Human Rights (UDHR).
Many people will say that the UDHR does not have binding force because it was adopted by the General Assembly of the United Nations. Nowadays no-one argues against its obligatory nature, and it is widely accepted by the General Assembly and other human rights entities as a model against which to measure countries’ conduct and practices.
The United Nations Office against drugs and crime issued a manual on Special Investigation Methods, in which it sets out certain principles in relation to their use. According to the documents, such methods must be carried out in a way which shows respect for the state constitution, accords, international treaties currently in force, laws, and other regulations.
In conclusion, no oregan of the state may adopt regulations or legal provisions which are incompatible with international obligations. Executive Order 389/19 has the capacity to violate internationally protected human rights, especially the right to privacy and a private life.
It also violates rights recognised in the constitution:
– 48: “Every person has the right to have his privacy and private life respected.”
– 49: “The home is inviolable. No-one may enter another person’s home without the permission of the person living there, other than by express order of the relevent authority, by way of correct legal forms and for reasons already defined by law.”
– 50: “Correspondence and other forms of communication between individuals are inviolable. They may only be intercepted or registered by way of the express order of the relevant authority, in all cases with reference to the formalities established by law. Documents or information obtained by way of infraction of this principle may not constitute evidence in any proceeding.”
Translated by GH