Cubalex, 30 June 2021 — After spending the first 6 days after his arrival on the island in an isolation center, the artist Hamlet Lavastida, from the 27N [27th November] group, has been jailed in the Villa Marista State Security Investigation Unit. The artist has been under investigation since June 26 on the charge of instigation to commit a crime, file number 42/2021.
According to his friend, the writer Katherine Bisquet, his file is currently in the Attorney General’s Office. The criminal investigator in charge explained to Bisquet that yesterday a second procedural term began, also 72 hours long, pending the Order of the Prosecutor’s response. Lavastida will then be able to appoint a lawyer in the event that the case proceeds. Meanwhile he continues to be interrogated, without legal counsel, due to this investigative procedure.
Regarding this, we denounce the interrogation of Lavastida without the presence of a lawyer to advise him not to incriminate himself, and thus guarantee that he is not subjected to coercion to force him to testify.
This term of 7 days that they have imposed before he can obtain a lawyer is a violation of the right to defense and of the Constitution itself.
We point to ARTICLE 95: In criminal proceedings people have the following guarantees, among others:
b) to have legal assistance from the beginning of the process;
c) to be presumed innocent until a final judgment is issued against them;
d) not to be victimized by violence or coercion of any kind to be forced to testify;
e) not to testify against oneself.
“The evidence” for which Hamlet is being investigated is a conversation on the private chat of the 27N group’s Telegram, illegally monitored and disclosed by Humberto López in the National Newscast.
In that (we repeat) private conversation, Hamlet mentions the idea of marking [existing Cuban] banknotes with stamps designed with the acronyms MSI and 27N, in order to extend their brand. “This idea was not followed up as a civic action by the 27N group, and was never made public by any member, including Lavastida,” explains Bisquet. We emphasize that the current Penal Code does not deem the act of writing on or marking bills a crime.
The act of using as evidence private conversations that were published in the media violates ARTICLE 48 of the Constitution: “All persons have the right to the respect of their personal and family privacy, their own image and voice, their honor and personal identity.”
By exposing these confidential chats, the press media, led by the Party, also violated the Privacy of Correspondence guaranteed in article 289 of the Cuban Penal Code. In the event that this crime is committed by “a public official or employee, with abuse of their position, the penalty is deprivation of liberty from six months to two years or a fine of two hundred to five hundred shares*.” Under the Cuban legal framework, it is Humberto, as a member of the Party’s Central Committee, who should answer to the law.
Therefore, our organization emphasizes that this evidence must be excluded for violating the Law of Criminal Procedure and constitutional rights. Section C of Article 95 provides that each person, as a guarantee of legal security, enjoys due process both in the judicial and administrative spheres and, consequently, enjoys the right to offer relevant evidence and request the exclusion of what has been obtained in violation of established law.
Also, having been broadcast in the press means a possible influence on the judges who saw that NTV program (also available online), which can prejudice Lavastida.
As to the crime for which he is being investigated, “instigation to commit a crime,” it was an idea that Lavastida expressed in a closed environment that never came to fruition. A private comment, even one linked to a future commission of a crime, should not be sanctioned if it is not consummated. In law, preparatory acts are generally not sanctioned, unless they are related to crimes against the security of the State.
Cubalex agrees with and shares this fragment of legal analysis published by Katherine Bisquet:
“Article 125 of the Criminal Code recognizes that the act of ’inciting another or others, by word or in writing, PUBLICLY OR PRIVATELY, is punishable as an act preparatory to executing any of the crimes’ included within the title of crimes against the security of the State.
“But if this article were applied to Hamlet’s idea of marking currency, the Cuban authorities would have to charge him with a different crime than Article 202’s Instigation to commit a crime. To apply article 125 to Lavastida they would have to accuse him of one of the crimes designed to protect the security of the Cuban state. And this would confirm that accusing Hamlet of a crime against the security of the State for offering the idea of marking bills with the logos of the civic groups MSI and 27N would be about politically motivated repression.”
Hamlet Lavastida is today a prisoner of conscience.
*Translator’s note: Cuba’s Penal Code sets fines as a number of ’quotas’ or shares, with the value of one share defined in a separate section. In this way, the value of all fines in the code can be adjusted with a single change.
Translated by Tomás A.