With the Detention of Maiquel El Osorboa€, Do We Have Legal Certainty in Cuba? / Cubalex

Cubalex, 29 September 2018 — The District Attorney’s office in Havana Vieja is trying to revoke the decision taken 3 months ago by the police to fine the rapper Maiquel Castillo 1000 pesos. The rapper was violently arrested last 22nd June. They accused him of threatening the authorities when he filmed a house search in Cristo Park.

The law enforcement authorities have kept Maiquel Castillo, also known as “Maiquel El Osorbo”, locked up since 25th September 2018, to get back at him for joining the campaign against Decree 349. His case is evidence of the lack of legal certainty in Cuba.

The criminal law authorises the police to interpret it and apply it as if they were judges, in the nearly 27% of offences they deal with. These officers, instead of remitting the cases to a tribunal, judge them and apply fines.

What we do know is, if he accepts the imposition of a fine, he would be acknowledging his guilt (destroying his own presumption of innocence). The police do not take the trouble to declare that they “will refer the matter to the competent authorities (…)” only when the “offender requests it or does not pay the fine”.

Receipt for payment of a 1,000 peso fine.

Returning to the case of “Maiquel El Osorbo”, who paid the fine the same day that it was imposed, the law says “if the offender pays the fine (…) within 10 working days of its imposition, the matter will be considered as closed, and will not be recorded as an offence.”

Most people accept the fine, “doing an 8.3”, as it is commonly known, to get the matter finished with. The truth is that there is no difference between a judgement by a  policeman (who has hardly made it to the ninth grade) and a judge (law graduate), who is subject to all sorts of influence by State Security and the Ministry of the Interior. Anyway we all know how we will end up if we take it into our head to get the better of a policeman, and that nothing will come of it.

So we have to ask whether the tribunals and district attorneys should adhere to a decision taken by a policeman to impose a fine? And as and when they may be satisfied, whether this decision should have the same value as a definitive judicial sentence?

Or whether, on the contrary, can a policeman, district attorney or tribunal be at liberty to change their opinion, regarding a decision already taken, to revoke it, and consider an act to lack “social danger because of  its limited consequences and the social condition of the author of the act”?

For the crime of assault, there is an expected prison term of from one to three years. In such a case, the police should require the approval of the district attorney, as set out in the criminal code. Can the attorney’s office go against its own decisions?

Can a citizen have confidence that the observation of and respect for legal procedures will be maintained in every case, in accordance with the legal framework of the country? And, what happens if you are not of that view?

Translated by GH