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