The American contractor, Alan Gross, was sentenced this past March 4th in Havana for carrying out acts which uphold the interests of a foreign State with the “objective of damaging Cuban state independence or territorial integrity”, according article 91 of the Penal Code.
The choice of the precept made it clear what the Cuban authorities were seeking, as they tried to apply one of the most imprecise and severe aspects of their legislation. However, Law 88/99 in regards to “The Protection of Cuban Independence and Economics” is less ample, and the penal infraction regulated by its Article 11 is related more to the case in question.
The precept establishes sentences of 3 to 8 years in prison, including a sanction of a fine of one thousand to 15 thousand pesos to anyone who directly distributes financial, material, or any other kind of means that come from the United States or any of its private entities.
In December 2009, Gross was detained without any charges for trying to bring satellite equipment to the Jewish community on the island. Fourteen months later, the public prosecutor asked for a 20 year prison sentence to Gross for actions against the territorial independence or integrity of the Cuban state.
The Public Minister took the opportunity to apply Law 88/1999, popularly known as the Gag Law, which is more benign and less ambiguous. The tribunal also returned the proceedings for an incorrect legal classification.
However, when the judicial process should be the same throughout the entire island, the interpretation and application of the law is anything but uniform. During the Spring of 2003, the Cuban courts condemned 75 dissidents to very long jail sentences. Only because the precept the Penal Code allowed it, and at least 43 of them were sentenced under it. They used the Gag Law on the rest of them.
In the case of the 75, the prosecutors office solicited the application of Article 91 of the Penal Code in the Provincial Tribunal of Las Tunas against one of the sentenced dissidents. In the sentence declared on 8/2003, the organ of justice rejected the prosecutor’s petition due to the special characteristics of Law 88/1999 which states in its text that it can be preferentially applied towards any other penal legislation which precedes it.
However, the Provincial Tribunal of Santiago de Cuba, in its 7/2003 sentence, rejected a legal mandate and the thesis of the defense to sentence according to the crimes of the Gag Law; because “the accused were seeking to undermine the sovereignty, to enslave the nation, and to annex Cuba to the United States of America”.
The fact that Alan Gross is a United States citizen worsened his situation before the Cuban authorities, due to all the differences which have existed for more than half a century between Cuba and the United States. The subordination of revolutionary justice to the mandates of the communist government also conspired against him.
The decision to sentence him and apply the most severe rule to him was the result of political reasons which, in the island, are above the law. As long as the State Council has the constitutional duty to impart instructions to the Prosecutor’s Office and the tribunals, it will continue working that way.
Translated by Raul G.
April 6 2011