Cubalex, 6 January 2020 — After the publication of Decree-Law No. 389/2019, special techniques of investigation were introduced, including undercover operations, successful collaboration, the use of electronic or other types of surveillance and controlled deliveries.
The same Decree-Law establishes that these techniques are appropriate or necessary for the investigation of criminal acts, which, by their gravity, connotation or organization require them, including operations whose origin or destination are outside the country.
Although the use of these measures is not new in the Cuban context, in the particular case of electronic surveillance there has been a surge in their application now that more people have access to cell phones and Internet accounts, and it’s the first time it has been legalized. The benefit of this new reality is that at least the general guidelines for their application are now published.
Another positive element is that, at least formally, the Ministry of the Interior is required to guarantee confidentiality of the information obtained through electronic surveillance if it has no relation to the crime. The information will not be divulged and will be destroyed. In addition, conversations between the accused and defense counsel cannot be recorded.
However, there is a big drawback to the regulation, because it can even call into question the constitutional recognition of due process (Article 95), the right to privacy (Article 48) and the inviolability of correspondence (Article 50).
The use of the above-mentioned techniques will not be authorized by the court but by the prosecutor. According to Article 110, paragraphs 2 and 3 of the Law of Criminal Procedure, whatever is drafted after the new modifications will allow prosecutors to authorize the application of the special investigation techniques.
Translated by Regina Anavy